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CINATL v. PROSOSKI

Cite as 307 Neb. 477

Robert H. Cinatl, appellant, v. Karen R. Prososki, 

Personal Representative of the Estate of Robert 

R. Prososki, deceased, and Karen R. Prososki, 

individually and as beneficiary of the Estate 

of Robert R. Prososki, deceased, appellee.

___ N.W.2d ___

Filed October 16, 2020. No. S-19-972.

1. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

2. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

3. Arbitration and Award: Appeal and Error. In reviewing a decision 

to vacate, modify, or confirm an arbitration award, an appellate court is 

obligated to reach a conclusion independent of the trial court’s ruling as 

to questions of law. However, the trial court’s factual findings will not 

be set aside on appeal unless clearly erroneous.

4. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it.

5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, the party must be appealing from a 

final order or a judgment.

6. Judgments: Final Orders: Words and Phrases. A judgment is the 

final determination of the rights of the parties in an action.

7. Judgments: Words and Phrases. Every direction of the court made or 

entered in writing and not included in a judgment is an order.

8. Judgments: Final Orders: Statutes: Appeal and Error. While all 

judgments not incorrectly designated as such are appealable, an order 

may be appealed only if a statute expressly makes the order appealable 

or the order falls within the statutory definition of a final order.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/23/2020 01:07 AM CDT
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Cite as 307 Neb. 477

9. Arbitration and Award: Final Orders: Appeal and Error. When 

Neb. Rev. Stat. § 25-2620 (Reissue 2016) is silent regarding the appealability of an arbitration-related order, an appellate court looks to the 

general final order statute to determine whether the order is final and 

appealable.

10. Final Orders: Appeal and Error. To be a final order subject to appellate review, the lower court’s order must (1) affect a substantial right 

and determine the action and prevent a judgment, (2) affect a substantial 

right and be made during a special proceeding, (3) affect a substantial 

right and be made on summary application in an action after a judgment is rendered, or (4) deny a motion for summary judgment which 

was based on the assertion of sovereign immunity or the immunity of a 

government official.

11. Final Orders. Whether an order affects a substantial right depends on 

whether it affects with finality the rights of the parties in the subject 

matter.

12. Arbitration and Award: Motions to Vacate. When arbitration has 

already occurred and a party seeks to vacate, modify, or confirm an 

award, an extraordinary level of deference is given to the underlying 

award itself.

13. Contracts: Rescission: Parties. The purpose of rescission is to place 

the parties in a status quo, that is, return the parties to their position 

which existed before the rescinded contract; hence, rescission may be 

unavailable unless the parties can be placed substantially in the status quo.

14. Arbitration and Award. The Uniform Arbitration Act does not allow 

for the exercise of discretion by a court when a request for confirmation 

is made and there is no pending application for vacation, modification, 

or correction.

15. Statutes: Words and Phrases. As a general rule, the word “shall” in 

a statute is considered mandatory and is inconsistent with the idea of 

discretion.

16. Trial: Evidence: Appeal and Error. In a civil case, the admission or 

exclusion of evidence is not reversible error unless it unfairly prejudiced 

a substantial right of the complaining party.

Appeal from the District Court for Buffalo County: John H. 

Marsh, Judge. Affirmed.

Michael J. Synek for appellant.

Patrick J. Nelson, of Law Office of Patrick J. Nelson, for 

appellee.
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Cite as 307 Neb. 477

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

An arbitration award rejected Robert H. Cinatl’s fraud-inthe-inducement claim seeking to rescind his contract to purchase an orthodontics practice. After the district court declined 

to vacate the arbitrator’s award, the court confirmed it. Cinatl 

appeals. Because the refusal to vacate the award remained 

interlocutory until the award was confirmed, we consider 

but reject Cinatl’s challenge to the first order. We conclude 

the court properly confirmed the award. Finding no merit to 

Cinatl’s other arguments, we affirm the court’s judgment.

BACKGROUND

In 1989, Robert R. Prososki (Dr. Prososki) began an orthodontics practice in Kearney, Nebraska. He ceased practicing 

in July 2013, upon being diagnosed with cancer. Dr. Prososki 

hired an agent to broker a sale of the practice. The broker 

prepared an investor prospectus for the practice and provided 

a copy to Cinatl, an orthodontist. Relying on representations 

in the prospectus, Cinatl entered into a written contract in 

October with Dr. Prososki for the purchase of the practice 

and entered into a lease with Dr. Prososki and his wife for the 

office building.

On October 29, 2013, Cinatl began operating the practice. 

Shortly thereafter, he discovered what he considered to be 

misrepresentations in the investor prospectus. In December, 

Cinatl notified Dr. Prososki and his wife, via their attorney, 

that Cinatl wanted to set aside the contract. He received no 

response.

In August 2015, Dr. Prososki died. At the end of October, 

Cinatl ceased operating at the practice’s location, though he 

rented space elsewhere for the next 14 months to “complete 

[his] patients.”
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Pleadings

In 2016, Cinatl sued Karen R. Prososki (Prososki), both as 

the personal representative of the estate of Dr. Prososki and 

individually. He sought rescission of the “Contract of Purchase 

and Sale of Dental Practice” and lease. Cinatl alleged that 

fraudulent misrepresentations were made, that he relied upon 

them, and that he suffered damages as a result of the false 

representations. Prososki’s answers (filed separately in her 

respective capacities) alleged that the complaint failed to state 

a claim upon which relief can be granted.

Arbitration

Because the contract contained a paragraph specifying mandatory arbitration “pursuant to the applicable arbitration laws 

of Nebraska,” Cinatl moved for appointment of an arbitrator. 

The district court found that the action was subject to arbitration and sustained a motion to compel arbitration.

The arbitrator conducted a hearing and received extensive 

evidence. Cinatl testified that by the first week of November 

2013, he “knew there was something very wrong, but [he] 

couldn’t put [his] finger on it.” He later discovered that many 

files which had been represented to him as active files had 

“been finished.” Cinatl called the broker in early November 

and stated that something was “very, very wrong.” Cinatl testified a review of files conducted in December showed that the 

number of active patients would have been 345 but that the 

prospectus estimated 700 such patients. In December, Cinatl 

met with the attorney for Dr. Prososki and his wife to discuss 

perceived misrepresentations in the prospectus. Cinatl asked 

that Dr. Prososki and his wife “take the practice back, find 

somebody else.”

In September 2015, Cinatl engaged a forensic accounting 

firm to review the practice’s records. Justin Frauendorfer, one 

of the owners of the accounting firm, reviewed the investor 

prospectus to verify its accuracy for Cinatl.

Frauendorfer discovered that there were 311 active patient 

files on August 5, 2013, but that the prospectus represented 
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that there were approximately 700 active files. According to 

Frauendorfer, “[f]or this to be over 50 percent off is why in 

my professional opinion I would say that it was potentially 

intentional or reckless.” Frauendorfer could not say that the 

number of active patients was intentionally misrepresented—

partly because he had not spoken with the person who made 

the representation—but he could say it was reckless.

Frauendorfer discovered other discrepancies. The prospectus showed 200 patients in recall on August 5, 2013, 

but Frauendorfer found the number to be 228. The prospectus showed 1,400 total files, but Frauendorfer came up with 

“approximately, 600 plus files.” He believed the statement that 

1,400 total files existed showed a reckless disregard for the 

truth. The investor prospectus indicated that the number of new 

patients per month was 10, but Frauendorfer found that it was 

2. Frauendorfer opined that “this practice summary sheet was 

materially misstated.”

Frauendorfer testified that there were 72 active Medicaid 

patients on August 5, 2013, representing $73,225 in Medicaid 

patient liability. He found there were 239 private pay patients 

on August 5, of which 39 had paid for services in advance, 

amounting to $34,654.50. According to Frauendorfer, the 

amount of contracts receivable on August 5 was $322,948.24, 

which changed to $269,672.64 on the October 28 date of closing, a difference of $53,275.60. Based on Frauendorfer’s experience, he would have expected that adjustment of the amount 

to be credited to Cinatl as the purchaser.

Cinatl testified that “[a]t a minimum,” he was seeking to 

have the contract to purchase and the lease rescinded. He 

asked to be put back in the position that he occupied before 

entering the contract and lease and for Prososki to be restored 

back to the extent possible.

On August 3, 2018, the arbitrator found in favor of Prososki 

on the issues pertaining to the sale of the practice and the 

lease. The arbitrator determined that Prososki had no role in 

the marketing and sale of the practice and made none of the 
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representations about which Cinatl complained. The arbitrator 

found that at all times between October 28, 2013, and the end 

of October 2015, Cinatl operated the orthodontic practice and 

retained the benefits of all he had acquired under the contract.

The arbitrator concluded it was unnecessary to determine 

whether Prososki committed fraud in inducing Cinatl to enter 

into the contract. The arbitrator reasoned that Cinatl “did not 

rescind the contract but elected instead to receive the benefits 

of it for almost two years after he discovered the facts leading 

him to believe that he was defrauded.” Paragraph 13 of the 

arbitrator’s decision stated:

During the time he operated the practice, Cinatl’s ability to return Prososki to presale status quo diminished 

with each passing day. “The princip[al] relief effected 

by rescission is to place the parties in the same condition as they were in before the making of the contract 

sought to be rescinded.” Kracl v. Loseke, 236 Neb. 291, 

303, 461 N.W. 2d 67, 76 (1990). “[T]he remedy of rescission involves more than cancellation of a contract, and 

includes a judicial effort to place the contractual parties 

in, as nearly as possible, substantially the same condition 

which existed when the contract was entered. ‘[One] who 

seeks equity must do equity.’” Id.

The arbitrator noted that while Cinatl expressed dissatisfaction 

in late 2013 with what he considered to be misrepresentations 

by Dr. Prososki, he did not pursue rescission until January 

2016—“over a year and ten months later”—when he filed a 

statement of claim in the estate of Dr. Prososki. By that time, 

the status quo at the time of closing of the contract could not 

be restored, particularly because Dr. Prososki had died and 

Cinatl had left patients without an orthodontist. The arbitrator 

determined that “[b]y continuing to operate his orthodontic 

practice at the office for over a year and ten months after the 

December 7, 2013, meeting, Cinatl ratified the contract and 

waived any cause of action he might have had arising from his 

purchase of the practice.”
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District Court Proceedings

Within 90 days of the arbitrator’s decision, Cinatl filed an 

application to vacate the award. He alleged that “[t]he arbitrator exceeded his authority by rendering a decision based upon 

issues and defenses which the parties had not raised in the 

pleadings, including but not limited to: estoppel, laches, statute 

of limitations, and waiver.”

On January 28, 2019, the court entered an order denying 

the application to vacate. The court noted that it did not have 

the bill of exceptions from the arbitrator’s hearing or the written arguments submitted by the parties to the arbitrator. But 

in reviewing the arbitrator’s decision, the court did not “find 

a substantial, if any, reliance by the arbitrator on the equitable 

defenses alleged.” The court reasoned:

Essentially, the arbitrator found that he did not need to 

address the issues of fraud or misrepresentation because 

it was impossible, given the passage of time, and circumstances to provide the remedy of rescission in that both 

parties could not be placed back in the status quo existing at the time the contracts were entered. This Court 

specifically refers to paragraph 13 of the arbitrator’s 

decision.

Ten days later, Cinatl filed two motions. One motion, seeking a new trial, requested that the court “vacate the judgment 

and decision set forth in the Court’s Order, filed January 28, 

2019.” Cinatl identified four grounds for a new trial under Neb. 

Rev. Stat. § 25-1142 (Reissue 2016). The other motion, which 

was later sustained, requested an order for preparation of the 

record from the arbitration hearing. The next day, Prososki 

filed a motion to confirm the arbitrator’s award.

During a hearing on the motion for new trial, Cinatl’s 

counsel argued that while the January 2019 order noted the 

absence of a bill of exceptions from the arbitrator’s hearing, 

counsel did not believe a transcription was necessary, because 

he was making a legal argument. Counsel then had the record 

prepared, but he maintained that the court should not need 
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the record to rule on the arguments made during the application to vacate.

On August 12, 2019, the court entered an order overruling 

the motion for new trial. The court reasoned that the arbitrator’s decision was “not necessarily grounded in laches or estoppel, but rather cite[d] an equitable principle that the parties 

cannot be placed in the same condition as they were before 

making the contract.”

On August 16, 2019, Prososki filed an amended motion to 

confirm the arbitrator’s award. On September 10, the court 

entered an order doing so. In confirming the award, the court 

took judicial notice that no motion to modify or correct the 

arbitration award was pending.

Thirty days later, Cinatl filed a notice of appeal. We moved 

this case to our docket. 1

ASSIGNMENTS OF ERROR

Cinatl assigns, consolidated, restated, and reordered, that 

the district court erred by (1) failing to vacate the arbitrator’s 

award and order a rehearing, (2) confirming the arbitrator’s 

award, (3) depriving Cinatl of his right to procedural due 

process at the hearing by refusing to review the arbitration record, and (4) failing to rule upon the admissibility of 

an exhibit.

[1] Cinatl also assigns but fails to argue that the court erred 

by improperly suggesting with regard to Cinatl’s application 

to vacate that the court needed to review a bill of exceptions 

from the arbitration hearing in order to consider the legal arguments presented by that application. An alleged error must be 

both specifically assigned and specifically argued in the brief 

of the party asserting the error to be considered by an appellate 

court. 2 Because his brief did not argue this assignment, we do 

not consider it.

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

2 TNT Cattle Co. v. Fife, 304 Neb. 890, 937 N.W.2d 811 (2020).
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STANDARD OF REVIEW

[2] A jurisdictional question which does not involve a factual 

dispute is determined by an appellate court as a matter of law. 3

[3] In reviewing a decision to vacate, modify, or confirm 

an arbitration award, an appellate court is obligated to reach 

a conclusion independent of the trial court’s ruling as to questions of law. However, the trial court’s factual findings will not 

be set aside on appeal unless clearly erroneous. 4

ANALYSIS

Jurisdiction

[4-8] Before reaching the legal issues presented for review, 

it is the duty of an appellate court to determine whether it 

has jurisdiction over the matter before it. 5 For an appellate 

court to acquire jurisdiction of an appeal, the party must be 

appealing from a final order or a judgment. 6 A judgment is the 

final determination of the rights of the parties in an action. 7

Every direction of the court made or entered in writing and 

not included in a judgment is an order. 8 While all judgments 9

not incorrectly designated as such 10 are appealable, an order 

may be appealed only if a statute expressly makes the order 

appealable or the order falls within the statutory definition of 

a final order. 11

Cinatl’s October 10, 2019, notice of appeal purported to 

appeal from three orders. He sought to appeal the January 28 

3 Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).

4 Garlock v. 3DS Properties, 303 Neb. 521, 930 N.W.2d 503 (2019).

5 Cullinane v. Beverly Enters. - Neb., 300 Neb. 210, 912 N.W.2d 774 

(2018).

6 State v. Fredrickson, 306 Neb. 81, 943 N.W.2d 701 (2020).

7 Neb. Rev. Stat. § 25-1301(1) (Cum. Supp. 2018).

8 State v. Fredrickson, supra note 6.

9 See § 25-1301(1) (defining judgment).

10 See Neb. Rev. Stat. § 25-1315(1) (Reissue 2016).

11 See State v. Fredrickson, supra note 6.
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order denying his application to vacate the arbitrator’s award, 

the August 12 order overruling his motion for new trial (in connection with the denial of the application to vacate), and the 

September 10 order confirming the arbitration award. Prososki 

challenges our jurisdiction of the first two of those orders.

To determine whether the orders are appealable, we first 

consider whether they are appealable orders under the Uniform 

Arbitration Act (UAA) 12 and, if not, whether they are final 

orders under Neb. Rev. Stat. § 25-1902 (Reissue 2016 & Supp. 

2019). 13 Both parties base their arguments on the UAA, seemingly treating the contract as having agreed to arbitration based 

upon that law. We see no reason to do otherwise.

The UAA contains a statute addressing appeals. Under 

§ 25-2620(a), an appeal may be taken from the following:

(1) An order denying an application to compel arbitration made under section 25-2603;

(2) An order granting an application to stay arbitration 

made under subsection (b) of section 25-2603;

(3) An order confirming or denying confirmation of 

an award;

(4) An order modifying or correcting an award;

(5) An order vacating an award without directing a 

rehearing; or

(6) A judgment or decree entered pursuant to the provisions of the [UAA].

Section 25-2620(a)(3) identifies an order confirming an 

award as an appealable order. Cinatl filed an appeal within 30 

days of the September 2019 order confirming the arbitration 

award, and there is no dispute we have jurisdiction to consider 

that order.

[9] Whether the January 2019 order denying Cinatl’s application to vacate is appealable is not as clear cut. While the 

12 Neb. Rev. Stat. §§ 25-2601 to 25-2622 (Reissue 2016 & Cum. Supp. 

2018).

13 See Pearce v. Mutual of Omaha Ins. Co., 293 Neb. 277, 876 N.W.2d 899 

(2016).
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UAA explicitly allows an appeal from an order vacating an 

arbitration award, 14 it is silent as to whether a party may appeal 

an order denying an application to vacate. We have stated that 

when § 25-2620 is silent regarding the appealability of an 

arbitration-related order, we look to the general final order 

statute to determine whether the order is final and appealable. 15

[10] Under our final order statute, 16 to be a final order subject to appellate review, the lower court’s order must (1) affect 

a substantial right and determine the action and prevent a judgment, (2) affect a substantial right and be made during a special 

proceeding, (3) affect a substantial right and be made on summary application in an action after a judgment is rendered, or 

(4) deny a motion for summary judgment which was based on 

the assertion of sovereign immunity or the immunity of a government official. 17 Because this appeal clearly does not involve 

the last category, we first determine whether the order affected 

a substantial right of one or more parties. 18

[11] The inquiry of whether a substantial right is affected 

focuses on whether the right at issue is substantial and whether 

the court’s order has a substantial impact on that right. 19

Whether an order affects a substantial right depends on whether 

it affects with finality the rights of the parties in the subject 

matter. 20 It also depends on whether the right could otherwise 

effectively be vindicated. 21 An order affects a substantial right 

when the right would be significantly undermined or irrevocably lost by postponing appellate review. 22

14 § 25-2620(a)(5).

15 See Kremer v. Rural Community Ins. Co., 280 Neb. 591, 788 N.W.2d 538 

(2010).

16 See § 25-1902.

17 See State v. Fredrickson, supra note 6.

18 See id.

19 See id.

20 Id.

21 Id.

22 Id.
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Prososki contends that Cinatl needed to file an appeal from 

the order denying the application to vacate the arbitrator’s 

award. According to Prososki, the right to challenge the validity of an award through an application to vacate is an essential legal right, because without a possible modification or 

correction, the only right to challenge an award is to apply 

for an order vacating the award. But this argument overlooks 

the unquestionable appealability of an order confirming the 

award 23 and the intent behind limiting the types of appealable 

arbitration orders. Appellate review of an arbitrator’s award 

is necessarily limited, because to allow full scrutiny of such 

awards would frustrate the purpose of having arbitration at 

all—the quick resolution of disputes and the avoidance of the 

expense and delay associated with litigation. Strong deference 

is due an arbitrative tribunal; when parties agree to arbitration, 

they agree to accept whatever reasonable uncertainties might 

arise from the process. 24

Other state courts have determined that no appeal can be 

taken from an order denying an application to vacate and that 

such an order may be reviewed upon an appeal from an order 

confirming the award. 25 The Hawaii Supreme Court instructed 

that upon the denial of a motion to vacate, the unsuccessful movant’s recourse would then be a motion to confirm the 

award. 26 It explained that because the trial court has already 

reviewed the award and decided no grounds exist for vacating it, a confirmation should follow. 27 The movant could then 

23 See § 25-2620(a)(3).

24 Hartman v. City of Grand Island, 265 Neb. 433, 657 N.W.2d 641 (2003).

25 See, e.g., Mid-Wilshire Associates v. O’Leary, 7 Cal. App. 4th 1450, 9 Cal. 

Rptr. 2d 862 (1992); Salud v. Financial Sec. Ins. Co., Ltd., 69 Haw. 427, 

745 P.2d 290 (1987); Nelson Paving Co., Inc. v. Hjelle, 207 N.W.2d 225 

(N.D. 1973). See, also, Ayers v. R.A. Murphy Co., 163 Ohio App. 3d 497, 

839 N.E.2d 80 (2005).

26 See Salud v. Financial Sec. Ins. Co., Ltd., supra note 25.

27 See id.
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perfect an appeal and obtain appellate review of the order confirming the award. 28

The purpose of confirming an arbitration award is to provide 

a judgment that can then be enforced through court proceedings. 29 “Upon the granting of an order confirming, modifying, 

or correcting an award, a judgment or decree shall be entered 

in conformity therewith and be enforced as any other judgment or decree.” 30 Ideally, confirmation should occur swiftly, 

although the court has 60 days from a party’s application to do 

so. 31 Thus, though not immediately appealable, an unsuccessful movant for judicial vacatur should not have to wait long to 

obtain appellate review.

We conclude the January 2019 order denying the application 

to vacate the arbitrator’s award did not affect a substantial right 

of Cinatl. For the same reasons, we conclude the August order 

overruling the motion for new trial (which asked the court to 

vacate the January 2019 order and which, because there was 

no trial in the district court, we treat as a motion to reconsider) 

did not affect a substantial right and was not a final order. 

The rights at issue in an interlocutory determination denying 

judicial vacatur of an arbitration award can be adequately vindicated through an appeal of the order confirming the award. 

Because these prior orders were interlocutory, Cinatl properly 

waited until entry of an appealable order—the order confirming the arbitration award—to challenge them.

Failing to Vacate Award 

and Order Rehearing

[12] Having determined that we have jurisdiction over 

the order denying Cinatl’s application to vacate, we consider 

28 Id.

29 Drummond v. State Farm Mut. Auto. Ins. Co., 280 Neb. 258, 785 N.W.2d 

829 (2010), citing Stewart Title Guar. Co. v. Tilden, 64 P.3d 739 (Wyo. 

2003).

30 § 25-2615.

31 See § 25-2612.
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Cinatl’s arguments that the district court erred by failing to 

vacate the award and order a rehearing. When arbitration has 

already occurred and a party seeks to vacate, modify, or confirm an award, an extraordinary level of deference is given to 

the underlying award itself. 32

The UAA sets forth grounds for vacating an award. Section 

25-2613 provides in relevant part:

(a) Upon application of a party, the court shall vacate 

an award when:

(1) The award was procured by corruption, fraud, or 

other undue means;

(2) There was evident partiality by an arbitrator 

appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;

(3) The arbitrators exceeded their powers;

(4) The arbitrators refused to postpone the hearing 

upon sufficient cause being shown therefor, refused to 

hear evidence material to the controversy, or otherwise 

so conducted the hearing, contrary to the provisions of 

section 25-2606, as to prejudice substantially the rights 

of a party;

(5) There was no arbitration agreement and the issue 

was not adversely determined in proceedings under section 25-2603, and the party did not participate in the arbitration hearing without raising the objection; or

(6) An arbitrator was subject to disqualification pursuant to section 25-2604.01 and failed, upon receipt of 

timely demand, to disqualify himself or herself as required 

by such section.

The fact that the relief was such that it could not or 

would not be granted by a court of law or equity is not 

ground for vacating or refusing to confirm the award.

Of these enumerated grounds, Cinatl asserted only that the 

arbitrator exceeded his or her powers. He argues on appeal that 

32 Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020).
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the arbitrator’s decision should be vacated due to the absence 

of a finding on fraud, but that does not fit under his asserted 

ground for judicial vacatur.

Cinatl contends that the arbitrator exceeded his authority by rendering a decision based upon defenses not raised 

in the pleadings. Cinatl argues that because Prososki never 

asserted any affirmative defenses, the arbitrator should have 

rejected suggestions that Cinatl’s cause of action may be time 

barred or barred by estoppel. Cinatl points to references in 

the arbitrator’s conclusions of law concerning delay, estoppel, 

and waiver.

[13] The arbitrator’s decision determined that rescission was 

unavailable due to the nature of the relief requested and the 

changed circumstances. The purpose of rescission is to place 

the parties in a status quo, that is, return the parties to their 

position which existed before the rescinded contract; hence, 

rescission may be unavailable unless the parties can be placed 

substantially in the status quo. 33 The arbitrator remarked on 

the inability to return the parties to the status quo. Its decision stated that “[d]uring the time he operated the practice, 

Cinatl’s ability to return [Dr.] Prososki to pre-sale status quo 

diminished with each passing day.” It further stated that Cinatl 

“took what was a going concern orthodontic practice and rendered it difficult if not impossible to return [Dr.] Prososki or 

his estate to status quo.” The arbitrator observed that “[t]he 

practice closed, leaving patients without their orthodontist and 

having to find another—in effect, vanishing the practice” and 

that Dr. Prososki had passed away. The arbitrator determined 

that “Cinatl simply cannot restore the status quo at the time of 

closing of the contract.” We find no merit to Cinatl’s argument 

that the arbitrator decided the matter based on unpled defenses. 

Accordingly, even if we were to assume that the arbitrator 

would have exceeded his power by deciding the matter based 

on unpled defenses, the court did not err in overruling Cinatl’s 

application to vacate and not ordering a rehearing.

33 Kracl v. Loseke, 236 Neb. 290, 461 N.W.2d 67 (1990).
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Confirmation of Award

As mentioned, Cinatl appealed the court’s confirmation of 

the award. He contends that the court approved the arbitrator’s 

errors in failing to properly analyze or consider his fraud claim, 

failing to grant rescission, and failing to issue a just award.

[14,15] But under the circumstances, the district court had 

no option other than to confirm the award. The UAA does not 

allow for the exercise of discretion by the court when a request 

for confirmation is made and there is no pending application 

for vacation, modification, or correction. 34 Under § 25-2612, 

“the court shall confirm an award, unless within the time limits 

hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in sections 25-2613 [vacating an award] and 

25-2614 [modifying or correcting an award].” (Emphasis supplied.) Here, Cinatl sought to vacate the award, but the court 

denied his request. “If the application to vacate is denied and 

no motion to modify or correct the award is pending, the court 

shall confirm the award.” 35 As a general rule, the word “shall” 

in a statute is considered mandatory and is inconsistent with 

the idea of discretion. 36 Under the circumstances, the court 

properly confirmed the award.

Failing to Review Record From 

Arbitration Hearing

Cinatl argues that the court erred and violated his right to 

procedural due process by failing to review the record from the 

arbitration hearing, which he first offered during the hearing 

on Prososki’s motion to confirm the arbitrator’s award. But as 

discussed above, the court was obligated to confirm the award, 

because the court had already denied Cinatl’s application to 

vacate and there was no pending motion to modify or correct 

34 See Garlock v. 3DS Properties, supra note 4.

35 § 25-2613(d) (emphasis supplied).

36 Glasson v. Board of Equal. of City of Omaha, 302 Neb. 869, 925 N.W.2d 

672 (2019).
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the award. We find no error or due process violation by the 

district court.

Failing to Rule Upon Admissibility 

of Exhibit 101

Finally, Cinatl argues that the court erred by failing to rule 

upon the admissibility of an exhibit. During a hearing on the 

application to vacate, Cinatl offered exhibit 101, his affidavit, 

in which he swore that the statements in the application to 

vacate were true to the best of his knowledge. He represented 

during the hearing that his affidavit was “merely intended to be 

a verification of the allegations set forth in his application to 

vacate award.” Cinatl attached two documents to the affidavit: 

(1) a copy of his application to vacate the arbitrator’s award 

and (2) a copy of the arbitrator’s decision. Prososki objected 

to the exhibit.

The court took the offer of exhibit 101 under advisement. 

The record contains no ruling on its admissibility. During a 

later hearing on the motion for new trial, Cinatl argued that 

the record was incomplete because it did not show whether the 

court received exhibit 101.

[16] We find no reversible error by the court in failing to 

rule on the admissibility of the exhibit. In a civil case, the 

admission or exclusion of evidence is not reversible error 

unless it unfairly prejudiced a substantial right of the complaining party. 37 Before the court took the offer of the exhibit under 

advisement, it observed that the court file contained both the 

arbitrator’s decision and the application to vacate. At one time, 

every pleading of fact in a civil action had to be verified by the 

affidavit of the party, his or her agent, or attorney. 38 But such 

verification has not been required for half a century. 39 Because 

37 In re Interest of Vladimir G., 306 Neb. 127, 944 N.W.2d 309 (2020).

38 See, Neb. Rev. Stat. § 25-824 (1943); AVG Partners I v. Genesis Health 

Clubs, ante p. 47, 948 N.W.2d 212 (2020).

39 See AVG Partners I v. Genesis Health Clubs, supra note 38, citing 1969 

Neb. Laws, L.B. 375.
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the court’s record contained the documents attached to Cinatl’s 

affidavit and his verification of the statements in his application to vacate was unnecessary, he suffered no prejudice by the 

court’s failure to rule on the exhibit’s admissibility.

CONCLUSION

We have jurisdiction to consider Cinatl’s challenge to the 

denial of his application to vacate, but his challenge lacks 

merit. Because the district court did not err in confirming the 

arbitration award, we affirm its judgment.

Affirmed.