- 73 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

Lund-Ross Constructors, Inc., a Nebraska 

corporation, appellant, v. The Duke of 

Omaha, LLC, a Georgia limited liability 

company, et al., appellees.

___ N.W.3d ___

Filed July 30, 2024. No. A-23-660.

1. Jurisdiction: Appeal and Error. A jurisdictional issue that does not 

involve a factual dispute presents a question of law.

2. 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.

3. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court resolves the questions independently of the lower court’s 

conclusions. However, the trial court’s factual findings will not be set 

aside on appeal unless clearly erroneous.

4. Arbitration and Award: Federal Acts: Motions to Vacate. Congress 

enacted the Federal Arbitration Act to provide for expedited judicial 

review to confirm, vacate, or modify arbitration awards.

5. ____: ____: ____. The Federal Arbitration Act favors arbitration agreements, and this applies in both state and federal courts. Under the act’s 

framework, once an arbitrator comes to a decision and makes an award, 

the parties have several options. The parties can request the court to 

confirm the award pursuant to 9 U.S.C. § 9 (2018), vacate the award 

under 9 U.S.C. § 10 (2018), or modify the award pursuant to 9 U.S.C. 

§ 11 (2018).

6. Arbitration and Award: Judgments. The purpose of confirming an 

arbitration award is to provide a judgment that can then be enforced 

through court proceedings.

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

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

Nebraska Supreme Court Online Library

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

07/30/2024 09:05 AM CDT
- 74 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

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

award itself.

8. Arbitration and Award: Federal Acts: Motions to Vacate. The Federal 

Arbitration Act sets forth four grounds under which a court may vacate 

an arbitration award, and in the absence of one of these grounds, the 

award must be confirmed.

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

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

determine whether it has jurisdiction over the matter before it.

10. Arbitration and Award: Federal Acts: Contracts. Arbitration in 

Nebraska is governed by the Federal Arbitration Act if it arises from 

a contract involving interstate commerce; otherwise, it is governed by 

Nebraska’s Uniform Arbitration Act.

11. Arbitration and Award: Federal Acts: Jurisdiction: Appeal and 

Error. The determination of whether the Federal Arbitration Act or 

Nebraska’s Uniform Arbitration Act governs the arbitration merely 

establishes the framework for the jurisdictional analysis and does not 

answer whether an appellate court has jurisdiction over an appeal.

12. Arbitration and Award: Federal Acts: Final Orders: Appeal and 

Error. When the Federal Arbitration Act applies, Nebraska courts determine finality for purposes of appeal by applying state procedural rules.

13. ____: ____: ____: ____. In order to determine whether state law governs the finality for purposes of appeal of an order under the Federal 

Arbitration Act, courts must first apply state procedural rules to determine if the order is final for purposes of appeal and then determine 

whether the result of that inquiry would undermine the goals and policies of the act.

14. Jurisdiction: Legislature: Appeal and Error. For an appellate court 

to have jurisdiction over an appeal, the Legislature must specifically 

provide appellate jurisdiction. Unless a Nebraska statute provides for an 

appeal, such right does not exist.

15. Arbitration and Award: Final Orders: Appeal and Error. To determine whether an order on an arbitration award is appealable, an appellate 

court first considers whether it is an appealable order under Nebraska’s 

Uniform Arbitration Act and, if not, whether it is a final order under 

Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2022).

16. Final Orders: Appeal and Error. Under the final order statute, the 

three types of final orders which may be reviewed on appeal are (1) an 

order affecting a substantial right in an action that, in effect, determines 

the action and prevents a judgment; (2) an order affecting a substantial 

right made during a special proceeding; and (3) an order affecting a 
- 75 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

substantial right made on summary application in an action after a judgment is rendered.

17. ____: ____. To determine if an order denying a motion to vacate is a 

final order, appellate courts consider whether the order affected a substantial right. Whether an order affects a substantial right depends on 

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

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

be vindicated. An order affects a substantial right when the right would 

be significantly undermined or irrevocably lost by postponing appellate review.

18. Arbitration and Award: Motions to Vacate. The denial of a motion to 

vacate an arbitration award does not affect a substantial right because 

following the denial of the motion to vacate, the unsuccessful party’s 

recourse would then be a motion to confirm the award.

19. Judgments: Intent. The meaning of a court’s judgment is a question of 

law that must be determined from all parts thereof, read in its entirety, 

and must be construed as a whole so as to give effect to every word and 

part, if possible, and bring all of its parts into harmony as far as this can 

be done by fair and reasonable interpretation.

20. Arbitration and Award: Federal Acts: Contracts: Appeal and Error.

When the Federal Arbitration Act applies, an appellate court must 

also determine whether the result of the appealability inquiry would 

undermine the goals and policies of the act. The purpose of the act is 

to replace judicial indisposition to arbitration with a national policy 

favoring it and placing arbitration agreements on equal footing with all 

other contracts.

21. Arbitration and Award: Motions to Vacate. Under Nebraska’s procedural law for arbitration under Nebraska’s Uniform Arbitration Act, a 

district court is authorized to sua sponte confirm the award following 

its denial of a motion to vacate. This procedure under the act not only 

allows the court to confirm an award without a request from the parties, 

but requires it.

22. Arbitration and Award: Intent. The Federal Arbitration Act contains 

no express preemptive provision, nor does it reflect a congressional 

intent to occupy the entire field of arbitration. 

23. Arbitration and Award: Appeal and Error. Where the application of 

state appellate procedural rules produces a different outcome than would 

be provided under the Federal Arbitration Act, its goals and policies are 

not undermined if the state rules only affect the timing of the appeal.

24. Appeal and Error. An appellate court will not consider an argument or 

theory that is raised for the first time on appeal. Thus, when an issue 

is raised for the first time in an appellate court, it will be disregarded 
- 76 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

inasmuch as a lower court cannot commit error in resolving an issue 

never presented and submitted to it for disposition.

25. Arbitration and Award: Contracts: Proof: Appeal and Error. A 

party seeking relief under 9 U.S.C. § 10(a)(4) (2018) of the Federal 

Arbitration Act bears a heavy burden. It is not enough to show that the 

arbitrator committed an error, or even a serious error. Because the parties bargained for the arbitrator’s construction of their agreement, an 

arbitral decision even arguably construing or applying the contract must 

stand, regardless of a court’s view of its (de)merits. Only if the arbitrator acts outside the scope of his or her contractually delegated authority 

by issuing an award that simply reflects the arbitrator’s own notions of 

economic justice, rather than drawing its essence from the contract, may 

a court overturn the determination. Thus, the sole question on judicial 

review is whether the arbitrator interpreted the parties’ contract, not 

whether the arbitrator construed it correctly.

26. Arbitration and Award: Federal Acts: Motions to Vacate: Proof.

Pursuant to 9 U.S.C. § 10(a)(3) (2018) of the Federal Arbitration Act, 

vacatur is appropriate where the arbitrator’s misbehavior prejudiced the 

rights of any party to the proceeding. Parties seeking to vacate an award 

for misconduct under this section must show that they were deprived of 

a fair hearing. While a fair hearing does not require the arbitrator to hear 

all evidence tendered by the parties, the arbitrator must give each of the 

parties to the dispute an adequate opportunity to present its evidence 

and arguments.

27. Arbitration and Award: Motions to Vacate. A court may vacate an 

award only if the arbitrator’s refusal to hear pertinent and material evidence prejudiced the rights of the parties to the arbitration proceedings.

28. Arbitration and Award. The arbitrator must provide an opportunity for 

the parties to present some evidence to support their claims and counter 

the other party’s.

29. ____. An invalid portion of an arbitration award may be severed from 

the remainder of the award.

30. Arbitration and Award: Appeal and Error. A court reviewing an 

arbitration award under the Federal Arbitration Act can confirm and/or 

vacate the award, either in whole or in part.

Appeal from the District Court for Douglas County: Molly 

B. Keane, Judge. Affirmed in part, and in part vacated.

Justin D. Eichmann, of Houghton, Bradford & Whitted, P.C., 

L.L.O., for appellant.
- 77 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

Justin W. Pritchett and Steven R. Hogan, of Fraser Stryker, 

P.C., L.L.O., for appellee A Raymond Plumbing, Inc.

Pirtle, Chief Judge, and Riedmann and Bishop, Judges.

Pirtle, Chief Judge.

I. INTRODUCTION

Lund-Ross Constructors, Inc. (Lund-Ross), entered into an 

agreement with The Duke of Omaha, LLC (the Duke), to be 

the general contractor for the construction of an apartment 

complex. Lund-Ross then hired A Raymond Plumbing Inc. 

(Raymond) as a subcontractor. After the Duke withheld payment to Lund-Ross, Lund-Ross withheld payment to Raymond. 

Pursuant to an arbitration clause in their contracts, the Duke 

and Lund-Ross proceeded to arbitration. After the arbitration 

hearing, Raymond submitted a counterclaim.

The arbitrator entered an award finding that the Duke owed 

Lund-Ross $307,103 and that Lund-Ross owed Raymond 

$215,508.31. Citing procedural irregularities, Lund-Ross filed 

a motion to vacate or modify the award in the district court 

for Douglas County, requesting that the court enter an order 

vacating the award, or at least that portion which provided 

for any award made in favor of Raymond. The district court 

denied the motion after finding that none of the grounds for 

vacatur under the Federal Arbitration Act (FAA) were present. 

See 9 U.S.C. §§ 1 through 16 (2018 & Supp. VI 2022). LundRoss now appeals the district court’s denial of its motion. For 

the following reasons, we affirm in part the award in favor 

of Lund-Ross, and we vacate in part the arbitration award in 

favor of Raymond.

II. BACKGROUND

On February 28, 2017, Lund-Ross entered into a contract 

with the Duke to be the general contractor for the construction of an apartment complex in Omaha, Nebraska. This 

agreement had a binding arbitration clause where any claims 
- 78 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

between the parties would be resolved through arbitration 

governed by the FAA. 

On May 3, 2017, Lund-Ross subcontracted Raymond to 

provide the plumbing services for the apartment complex. 

As part of that agreement, Raymond agreed to arbitrate any 

claims against Lund-Ross or the Duke. Additionally, this 

contract had a “pay-if-paid” provision that stated if payment 

was withheld from Lund-Ross by the Duke, Lund-Ross would 

withhold payment to Raymond. 

After the completion of the apartment complex, the Duke 

notified Lund-Ross that it was going to withhold $952,599 

from its final payment. Accordingly, Lund-Ross withheld payment from Raymond. Lund-Ross and Raymond both proceeded to file construction liens for the amounts owed to 

them. Lund-Ross’ lien was for $952,599 and Raymond’s was 

for $215,508.31. Lund-Ross then filed suit against the Duke, 

and Raymond filed suit against the Duke and Lund-Ross. 

Both lawsuits were stayed pending the contractual arbitration. However, because Raymond failed to submit a proposed 

scheduling order, its suit was eventually dismissed for lack of 

prosecution and was never refiled.

On May 11, 2021, Lund-Ross filed a demand for arbitration 

against the Duke where it alleged breach of contract, quantum 

meruit, and unjust enrichment. As part of this demand, LundRoss included Raymond as a respondent. On June 1, the Duke 

filed a counterclaim against Lund-Ross in the arbitration proceedings for breach of contract, breach of express warranty, 

and indemnification.

Over the next 11⁄2 years, the appointed arbitrator held progression conferences and entered four scheduling orders on 

July 26 and December 13, 2021, and March 25 and September 

15, 2022. Over this period, Raymond was in contact with 

Lund-Ross’ counsel and agreed to pay a portion of the hearing fees so that its counsel could observe the hearing and 

answer any of the arbitrator’s questions about its involvement 

in the underlying controversy. Raymond did not otherwise 
- 79 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

participate in the proceedings and even acknowledged in an 

email to the other parties that it did not intend to be an active 

participant. Accordingly, leading up to the hearing, Raymond 

never provided a statement of its claim, discovery requests, a 

witness list, an exhibit list, or a prehearing brief.

The arbitration hearing occurred from January 9 to 11, 2023. 

Other than the claims outlined by Lund-Ross and the Duke, no 

other claims or causes of action had been filed in the proceedings or were pending before the arbitrator at the hearing. While 

no record of the hearing was made, the arbitrator’s order and 

Raymond’s attorney’s affidavit state that the parties generally 

agreed Raymond’s work was satisfactory and the only reason 

Raymond was not being paid was because Lund-Ross did not 

have a contractual obligation to pay Raymond until it had been 

paid by the Duke.

On January 11, 2023, Raymond’s principal testified at the 

hearing and attempted to assert claims against Lund-Ross. 

But upon cross-examination, the principal acknowledged that 

Raymond never filed any claims in the arbitration proceedings and never revived its lawsuit against the Duke and LundRoss. After hearing this testimony, the arbitrator stopped the 

cross-examination and determined that it did not have jurisdiction over Raymond’s claims because they were never filed. 

Raymond’s principal then left the hearing.

On January 30, 2023, Lund-Ross and the Duke were notified that Raymond had paid an administrative fee and the 

arbitrator had granted Raymond’s request to file a counterclaim against Lund-Ross in the arbitration proceedings. 

On February 3, Raymond filed an answer and counterclaim 

against Lund-Ross for breach of contract, breach of implied 

covenant of good faith and fair dealing, and quantum meruit/

unjust enrichment. Within these claims, Raymond alleged 

that Lund-Ross owed it at least $215,508.31. Lund-Ross filed 

an objection to Raymond’s counterclaim, arguing that it was 

untimely, and motioned to strike it.
- 80 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

On March 9, 2023, without responding to Lund-Ross’ objection and motion to strike, the arbitrator entered his award that 

found the Duke owed Lund-Ross $307,103 and Lund-Ross 

owed Raymond $215,508.31. On March 29, Lund-Ross filed a 

“Motion to Modify/Correct Arbitration Award” with the arbitrator requesting that Raymond’s award be removed. Raymond 

filed an objection to this motion, and on April 28, the arbitrator ultimately denied the motion.

On May 23, 2023, Lund-Ross filed a motion to vacate 

or modify the arbitration award in the district court. In its 

motion, Lund-Ross argued the award should be vacated pursuant to 9 U.S.C. § 10(a) of the FAA due to the arbitrator’s 

misconduct and misbehavior in allowing Raymond to file its 

claims after the hearing concluded and refusing to receive 

evidence in opposition to those claims. The district court 

denied Lund-Ross’ motion and, in its order, stated:

Here, although the Court recognizes [Lund-Ross’] 

concerns regarding their ability to present and rebut 

evidence regarding [Raymond’s] claims, the Court does 

not find that one of the four grounds under which a 

court may vacate an arbitration award [outlined in 9 

U.S.C. § 10(a)] is present. Therefore, the award must be 

confirmed.

Following this order, Raymond filed a motion to clarify 

whether the district court’s order confirmed the arbitration 

award or merely indicated that it would be confirmed upon 

the subsequent filing of a motion to confirm. That motion was 

not answered before Lund-Ross appealed the district court’s 

denial of its motion to vacate. 

On December 22, 2023, Raymond motioned for this court 

to summarily dismiss Lund-Ross’ appeal. Raymond argued 

that because the district court’s order on Lund-Ross’ motion 

to vacate was not a final, appealable order, we did not have 

jurisdiction over the appeal. On January 8, 2024, we denied 

Raymond’s motion to dismiss and directed the parties to 

address the jurisdiction issue in their briefs. 
- 81 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

III. ASSIGNMENTS OF ERROR

Lund-Ross assigns, consolidated, restated, and reordered, 

that the district court erred in (1) failing to determine Raymond 

waived its right to arbitrate its claims and (2) failing to vacate 

the arbitration award at least as to the portion providing an 

award in favor of Raymond pursuant to 9 U.S.C. § 10 because 

the arbitrator (a) was guilty of misbehavior that caused it 

prejudice under § 10(a)(3) and (b) exceeded his powers or so 

imperfectly executed them that a mutual, final, and definite 

award was not made under § 10(a)(4).

IV. STANDARD OF REVIEW

[1] A jurisdictional issue that does not involve a factual 

dispute presents a question of law. See Cinatl v. Prososki, 307 

Neb. 477, 949 N.W.2d 505 (2020).

[2] 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. Id.

[3] When reviewing questions of law, an appellate court 

resolves the questions independently of the lower court’s conclusions. See id. However, the trial court’s factual findings 

will not be set aside on appeal unless clearly erroneous. Id.

V. ANALYSIS

[4-6] This matter involves the parties’ arbitration under 

the FAA. Congress enacted the FAA to provide for “‘expedited judicial review to confirm, vacate, or modify arbitration awards.’” Seldin v. Estate of Silverman, 305 Neb. 185, 

200, 939 N.W.2d 768, 783 (2020). The FAA favors arbitration agreements, and this applies in both state and federal 

courts. Seldin v. Estate of Silverman, supra. Under the FAA’s 

framework, once an arbitrator comes to a decision and makes 

an award, the parties have several options. The parties can 

request the court to confirm the award pursuant to 9 U.S.C. 

§ 9, vacate the award under 9 U.S.C. § 10, or modify the 

award pursuant to 9 U.S.C. § 11. The purpose of confirming 
- 82 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

an arbitration award is to provide a judgment that can then be 

enforced through court proceedings. Cinatl v. Prososki, supra.

[7] 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.” Seldin 

v. Estate of Silverman, 305 Neb. at 200, 939 N.W.2d at 783 

(internal quotation marks omitted). The U.S. Supreme Court 

has instructed that under the FAA, a court may vacate an arbitrator’s decision “only in very unusual circumstances.” Seldin 

v. Estate of Silverman, 305 Neb. at 201, 939 N.W.2d at 783 

(internal quotation marks omitted).

[8] The FAA sets forth four grounds under which a court 

may vacate an arbitration award, and in the absence of one of 

these grounds, the award must be confirmed. Seldin v. Estate of 

Silverman, supra. Those grounds are as follows: 

“(1) where the award was procured by corruption, 

fraud, or undue means;

“(2) where there was evident partiality or corruption in 

the arbitrators, or either of them;

“(3) where the arbitrators were guilty of misconduct 

in refusing to postpone the hearing, upon sufficient cause 

shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by 

which the rights of any party have been prejudiced; or

“(4) where the arbitrators exceeded their powers, or 

so imperfectly executed them that a mutual, final, and 

definite award upon the subject matter submitted was not 

made.”

Id. at 201, 939 N.W.2d at 783, quoting 9 U.S.C. § 10(a).

1. Jurisdiction

The parties first contest whether we have proper jurisdiction over this appeal. Before evaluating 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. McPherson v. Walgreens Boot Alliance, 314 Neb. 875, 993 

N.W.2d 679 (2023). 
- 83 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

Raymond asserts we lack jurisdiction over the appeal 

because the district court’s order was not a final, appealable 

order. Raymond contends that an order denying a motion to 

vacate an arbitration award is not an appealable order under 9 

U.S.C. § 16(a) of the FAA, nor is it a final order under Neb. 

Rev. Stat. § 25-1902 (Cum. Supp. 2022). As to the latter argument, Raymond asserts the appeal cannot be perfected until 

the district court rules on a motion to confirm and finalizes 

the rights of the parties. Until that occurs, it argues this is an 

interlocutory appeal for which we lack jurisdiction.

In response, Lund-Ross essentially argues that the district 

court’s order is a final, appealable order because it both denied 

its motion to vacate and confirmed the award. And, in the 

alternative that the court’s order did not confirm the award, 

Lund-Ross cites various cases from the Eighth Circuit where 

it considered appeals from the denials of motions to vacate 

arbitration awards without questioning whether it had appellate 

jurisdiction under the FAA.

[9-12] Before reaching the legal issues presented for review, 

it is the power and duty of an appellate court to determine 

whether it has jurisdiction over the matter before it. Seldin v. 

Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020).

Arbitration in Nebraska is governed by the FAA if it arises 

from a contract involving interstate commerce; otherwise, it 

is governed by Nebraska’s Uniform Arbitration Act (UAA). 

Seldin v. Estate of Silverman, supra. In this matter, it is 

uncontested that the arbitration involved interstate commerce 

and was governed by the FAA. However, the determination of 

whether the FAA or the UAA governs the arbitration merely 

establishes the framework for the jurisdictional analysis and 

does not answer whether we have appellate jurisdiction over 

this appeal. See McPherson v. Walgreens Boot Alliance, supra. 

This is so because even when the FAA applies, Nebraska 

courts determine finality for purposes of appeal by applying state procedural rules. McPherson v. Walgreens Boot 

Alliance, supra.
- 84 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

[13,14] As the Nebraska Supreme Court provided in Webb v. 

American Employers Group, 268 Neb. 473, 481, 684 N.W.2d 

33, 41 (2004):

[T]o determine whether state law governs the finality for 

purposes of appeal of an order . . . under the FAA, we 

must first apply our state procedural rules to determine if 

the order is final for purposes of appeal and then determine whether the result of that inquiry would undermine 

the goals and policies of the FAA.

For this court to have jurisdiction over an appeal, the Legislature 

must specifically provide appellate jurisdiction. McPherson 

v. Walgreens Boot Alliance, supra. In other words, unless a 

Nebraska statute provides for an appeal, such right does not 

exist. Id. 

[15] In Cinatl v. Prososki, 307 Neb. 477, 949 N.W.2d 505 

(2020), the Supreme Court applied state procedural rules to 

determine if it had jurisdiction over an appeal from the denial 

of a motion to vacate an arbitration award that was governed 

by the UAA. In finding that the order denying the motion to 

vacate was not a final, appealable order, the court stated, “To 

determine whether the [order is] appealable, we first consider 

whether [it is an] appealable order[] under the [UAA] and, if 

not, whether [it is a] final order[] under . . . § 25-1902.” Cinatl 

v. Prososki, 307 Neb. at 486, 949 N.W.2d at 514.

[16] The court first decided that Neb. Rev. Stat. § 25-2620(a) 

(Reissue 2016) of the UAA was silent as to whether denials 

of a motion to vacate were appealable. See Cinatl v. Prososki, 

supra. As such, it proceeded to evaluate its jurisdiction under 

Nebraska’s final order statute, § 25-1902. Under the final 

order statute, the three types of final orders which may be 

reviewed on appeal are (1) an order affecting a substantial 

right in an action that, in effect, determines the action and 

prevents a judgment; (2) an order affecting a substantial right 

made during a special proceeding; and (3) an order affecting a substantial right made on summary application in an 
- 85 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

action after a judgment is rendered. See Cullinane v. Beverly 

Enters. - Neb., 300 Neb. 210, 912 N.W.2d 774 (2018).

[17] To determine if the order denying the motion to vacate 

was a final order, the court considered whether the order 

affected a substantial right. Whether an order affects a substantial right depends on whether it affects with finality the 

rights of the parties in the subject matter. Cinatl v. Prososki, 

supra. It also depends on whether the right could otherwise 

effectively be vindicated. Id. An order affects a substantial 

right when the right would be significantly undermined or 

irrevocably lost by postponing appellate review. Id.

[18] Citing to a case from the Hawaii Supreme Court, the 

Cinatl court concluded that the denial of the motion to vacate 

did not affect a substantial right because following the denial 

of the motion to vacate, “the unsuccessful movant’s recourse 

would then be a motion to confirm the award.” 307 Neb. at 

488, 949 N.W.2d at 515 (citing Salud v. Financial Sec. Ins. 

Co., Ltd., 69 Haw. 427, 745 P.2d 290 (1987)). It continued to 

indicate that because a motion to confirm the award should 

occur swiftly after a denial of a motion to vacate, the unsuccessful movant would be able to perfect the appeal and obtain 

appellate review of the order confirming the award. Cinatl v. 

Prososki, supra. Thus, the court stated, “though not immediately appealable, an unsuccessful movant for judicial vacatur 

should not have to wait long to obtain appellate review.” Id. 

at 489, 949 N.W.2d at 516.

In the current matter, Lund-Ross maintains that the holding 

in Cinatl is inapplicable because the district court’s order in 

this case both denied its motion to vacate and confirmed the 

award. Accordingly, Lund-Ross argues that there is nothing 

left for the court to decide. Raymond opposes this contention and asserts that the district court’s order did not confirm 

the award. 

[19] The meaning of a court’s judgment is a question of 

law that must be determined from all parts thereof, read in its 

entirety, and must be construed as a whole so as to give effect 
- 86 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

to every word and part, if possible, and bring all of its parts 

into harmony as far as this can be done by fair and reasonable 

interpretation. See Bayne v. Bayne, 302 Neb. 858, 925 N.W.2d 

687 (2019). We determine that because the district court concluded its order by stating, “Therefore, the award must be 

confirmed,” the court’s order confirmed the arbitration award. 

Because the court’s order confirmed the arbitration award, 

there is nothing left for the district court to decide. As such, 

we conclude the district court’s denying Lund-Ross’ motion 

to vacate and confirming the award affected a substantial right 

and was a final, appealable order.

[20] While we have concluded that the district court’s order 

denying vacatur and confirming the award is appealable under 

Nebraska’s procedural rules, Webb v. American Employers 

Group, 268 Neb. 473, 684 N.W.2d 33 (2004), instructs that 

when the FAA applies, we must also determine whether the 

result of the appealability inquiry would undermine the goals 

and policies of the FAA. See McPherson v. Walgreens Boot 

Alliance, 314 Neb. 875, 993 N.W.2d 679 (2023). As articulated by the U.S. Supreme Court, the purpose of the FAA is 

to “replace judicial indisposition to arbitration with a ‘national 

policy favoring [it] and plac[ing] arbitration agreements on 

equal footing with all other contracts.’” Hall Street Associates, 

L. L. C. v. Mattel, Inc., 552 U.S. 576, 581, 128 S. Ct. 1396, 

170 L. Ed. 2d 254 (2008).

[21] Here, we recognize that utilizing Nebraska’s state 

procedural rules may yield a different result compared to the 

application of the FAA. Applying Nebraska’s procedural law 

for arbitration under the UAA, the district court was authorized to sua sponte confirm the award following its denial of 

Lund-Ross’ motion to vacate. Neb. Rev. Stat. § 25-2613(d) 

(Reissue 2016) of the UAA states “If the application to vacate 

is denied and no motion to modify or correct the award is 

pending, the court shall confirm the award.” In statutory 

interpretation, “shall,” generally, is considered mandatory and 

inconsistent with the idea of discretion. Prokop v. Lower 
- 87 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

Loup NRD, 302 Neb. 10, 921 N.W.2d 375 (2019). Therefore, 

the procedure under the UAA not only allowed the court to 

confirm the award without a request from the parties, but 

required it.

In contrast, the FAA does not contain a similar provision 

allowing trial courts to confirm the arbitration award in the 

absence of a pending motion to vacate or modify. And federal 

courts do not all agree as to whether a court can confirm an 

arbitration award under the FAA in the absence of a specific 

motion requesting it. Several federal courts have found that 

an explicit motion to confirm is not necessary and, instead, 

treated motions to dismiss the opposing parties’ motions to 

vacate as the practical equivalents of a motion to confirm. 

See Maidman v. O’Brien, 473 F. Supp. 25 (S.D.N.Y. 1979). 

See, also, Sanluis Developments v. CCP Sanluis, L.L.C., 556 

F. Supp. 2d 329 (S.D.N.Y. 2008); General Elec. Co. v. Anson 

Stamping Co. Inc., 426 F. Supp. 2d 579 (W.D. Ky. 2006). 

Likewise, one federal court treated a motion for summary 

judgment as an implicit motion to confirm. See Andrea Doreen 

v. Building Material Local Union 282, 250 F. Supp. 2d 107 

(E.D.N.Y. 2003). 

However, in at least one decision, the U.S. District Court 

for the District of Nebraska has signaled that a formal motion 

to confirm is necessary to confirm an arbitration award under 

the FAA because 9 U.S.C. § 9 requires a specific factual finding of “an agreement by the parties for the entry of a judgment on the award.” Riddle v. Wachovia Securities, LLC, No. 

8:05CV87, 2006 WL 83101 at *2 (D. Neb. Jan. 12, 2006). 

While this case involved a different procedural posture, the 

court explained that the parties needed to file a formal motion 

to confirm and that the mere opposition to a motion to 

vacate and a footnote in an opposing brief seeking confirmation were not the functional equivalents of a motion seeking 

confirmation.

[22,23] Despite this potential disparity in outcomes between 

Nebraska’s procedural rules and the FAA, we determine that 
- 88 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

our decision regarding the finality of the district court’s order 

does not undermine the goals and policies of the FAA. As the 

Supreme Court has stated, “‘The FAA contains no express preemptive provision, nor does it reflect a congressional intent 

to occupy the entire field of arbitration.’” Kremer v. Rural 

Community Ins. Co., 280 Neb. 591, 602, 788 N.W.2d 538, 549 

(2010) (quoting Volt Info. Sciences v. Leland Stanford Jr. U., 

489 U.S. 468, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989)). 

Additionally, the Nebraska Supreme Court has twice indicated 

that where the application of state appellate procedural rules 

produces a different outcome than would be provided under 

the FAA, the FAA’s goals and policies are not undermined if 

the state rules only affect the timing of the appeal.

In Kremer v. Rural Community Ins. Co., supra, the court 

found that an order compelling arbitration was appealable 

under Nebraska’s final order statute but was not appealable 

under the FAA. Although the outcomes under the FAA and 

our state procedural rules were different, Kremer held that the 

state procedures only impacted the timing of the appeal and 

did not interfere with the parties’ substantive rights to enforce 

their agreement. Because of this, the court found that allowing an immediate appeal did not undermine the goals of the 

FAA. Similarly, in McPherson v. Walgreens Boot Alliance, 

314 Neb. 875, 993 N.W.2d 679 (2023), the court found that 

the FAA would allow an interlocutory appeal from an order 

staying arbitration where Nebraska’s procedural rules would 

not. Despite this incongruence, the court cited to Kremer in 

deciding that applying the state procedural rule did not undermine the goals of the FAA because it only impacted the timing of the appeal, not the substantive rights of the parties to 

enforce the agreement.

In the matter at hand, our decision that the district court’s 

order confirmed the arbitration award and thus affected a substantial right only affects the timing of the appeal and does 

not impact the substantive rights of the parties. Accordingly, 

we conclude that the district court’s order was a final, 
- 89 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

appealable order under Nebraska’s final order statute and that 

allowing the appeal does not undermine the goals and objectives of the FAA. Therefore, we find that we have appellate 

jurisdiction over this appeal.

2. Waiver

Lund-Ross assigns the district court erred in failing to find 

that Raymond waived its right to arbitrate. Lund-Ross generally asserts that by not participating in the arbitration until 

after the hearing, Raymond acted inconsistently with its right 

and, therefore, waived its right to partake in the arbitration.

[24] Although Lund-Ross objected to Raymond’s claims 

as untimely and prejudicial, it did not specifically claim that 

Raymond had waived its right to participate in the arbitration; therefore, Lund-Ross did not properly raise this argument 

either in the arbitration proceeding or in its motion to vacate 

filed in the district court. An appellate court will not consider 

an argument or theory that is raised for the first time on appeal. 

Eletech, Inc. v. Conveyance Consulting Group, 308 Neb. 733, 

956 N.W.2d 692 (2021). Thus, when an issue is raised for the 

first time in an appellate court, it will be disregarded inasmuch 

as a lower court cannot commit error in resolving an issue 

never presented and submitted to it for disposition. Id. Because 

Lund-Ross did not raise the issue of waiver in its motion to 

vacate, the argument was never presented to the district court. 

Without a ruling from the district court, we are unable to find 

that it committed error. Therefore, we conclude that LundRoss’ assignment of error pertaining to the alleged waiver of 

Raymond’s right to arbitration fails.

3. Failure to Vacate Arbitration Award

Lund-Ross assigns the district court erred in failing to vacate 

the arbitration award under 9 U.S.C. § 10 because the arbitrator 

exceeded his powers and/or imperfectly executed them under 

§ 10(a)(4) and was guilty of misbehavior that prejudiced its 

rights under § 10(a)(3).
- 90 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

(a) Exceeded Powers or 

Imperfectly Executed Them

Lund-Ross argues the award should be vacated under 9 

U.S.C. § 10(a)(4) of the FAA because the arbitrator exceeded 

his powers and/or so imperfectly executed them that a mutual, 

final, and definite award was not made. 

[25] A party seeking relief under 9 U.S.C. § 10(a)(4) bears 

a heavy burden. Oxford Health Plans LLC v. Sutter, 569 U.S. 

564, 133 S. Ct. 2064, 186 L. Ed. 2d 113 (2013). It is not 

enough to show that the arbitrator committed an error, or even 

a serious error. Id. Because the parties bargained for the arbitrator’s construction of their agreement, an arbitral decision 

even arguably construing or applying the contract must stand, 

regardless of a court’s view of its “(de)merits.” Id., 569 U.S. 

at 569. Only if the arbitrator acts outside the scope of his or 

her contractually delegated authority by issuing an award that 

simply reflects the arbitrator’s own notions of economic justice, rather than drawing its essence from the contract, may a 

court overturn the determination. Id. Thus, the sole question 

on judicial review is whether the arbitrator interpreted the parties’ contract, not whether the arbitrator construed it correctly. 

Id. See, also, City of Omaha v. Professional Firefighters Assn., 

309 Neb. 918, 963 N.W.2d 1 (2021) (stating that same standard of judicial review applies under the UAA).

We determine that Lund-Ross is not entitled to relief under 

9 U.S.C. § 10(a)(4) because the record demonstrates the 

arbitrator interpreted the contract between the parties. In his 

award, the arbitrator stated:

There was no testimony by Lund-Ross or The Duke that 

. . . Raymond failed to meet any of its obligations under 

the subcontract between the parties. There was testimony 

that Lund[-]Ross withheld from [Raymond] the amount 

of $215,508.31, based on the “pay-if[-]paid” provision 

under its subcontract with Lund-Ross based on the withholding of The Duke from Lund-Ross in the amount 

of $952,599. This arbitration resolved the withholding 
- 91 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

issue and I find that [Raymond] is now entitled to payment of the amount withheld. 

This language shows the arbitrator’s award was based on his 

interpretation of the agreement between the parties and the 

evidence presented to him. Although we acknowledge LundRoss’ assertions that it was prevented from presenting certain 

evidence, our task here is limited to deciding whether the arbitrator was arguably adhering to contract interpretation when 

he made the award. We determine that he was. Therefore, we 

conclude the district court did not err in not vacating the arbitration award under 9 U.S.C. § 10(a)(4).

(b) Misbehavior That Prejudiced 

Lund-Ross’ Rights

Lund-Ross argues the award should be vacated under 9 

U.S.C. § 10(a)(3) of the FAA because the arbitrator was guilty 

of misbehavior that prejudiced its rights. Lund-Ross contends the arbitrator misbehaved by preventing the full crossexamination of Raymond’s principal, not providing any notice 

of Raymond’s counterclaims until after the hearing, and not 

allowing Lund-Ross the opportunity to present evidence in 

opposition to Raymond’s counterclaims. 

Raymond contends this assignment of error should fail 

because this is the first time that Lund-Ross has argued the 

arbitration should be vacated under 9 U.S.C. § 10(a)(3). 

When an issue is raised for the first time in an appellate 

court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and 

submitted to it for disposition. Eletech, Inc. v. Conveyance 

Consulting Group, 308 Neb. 733, 956 N.W.2d 692 (2021). 

Lund-Ross’ motion to vacate did not specifically state that 

it sought vacation under this section of the FAA. However, 

its motion claimed the arbitrator’s actions were “extremely 

prejudicial” and laid out factual allegations claiming that the 

arbitrator allowed Raymond to file counterclaims without 

notifying Lund-Ross and did not allow Lund-Ross to present 
- 92 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

evidence in opposition to those claims. Seemingly because of 

the wide breadth of these allegations, the district court found 

it necessary to analyze whether vacatur was proper under 

each of the four grounds provided within 9 U.S.C. § 10 of 

the FAA. Therefore, because Lund-Ross’ motion to vacate 

contained factual allegations encompassing § 10(a)(3) and the 

district court did, in fact, decide that vacation was improper 

under that section, we conclude that this assignment of error 

is properly before us. 

[26,27] Pursuant to 9 U.S.C. § 10(a)(3) of the FAA, vacatur 

is appropriate where the arbitrator’s misbehavior prejudiced 

the rights of any party to the proceeding. See Seldin v. Estate 

of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020). Parties 

seeking to vacate an award for misconduct under this section must show that they were deprived of a fair hearing. Id. 

While a fair hearing does not require the arbitrator to hear all 

evidence tendered by the parties, the arbitrator must give each 

of the parties to the dispute an adequate opportunity to present its evidence and arguments. Hoteles Condado Beach Etc. 

v. Union De Etc., 763 F.2d 34 (1st Cir. 1985); Global Gold 

Min., LLC v. Ayvazian, 612 Fed. Appx. 11 (2d Cir. 2015). In 

other words, a court may vacate an award only if the arbitrator’s refusal to hear pertinent and material evidence prejudiced 

the rights of the parties to the arbitration proceedings. Three 

S Delaware v. DataQuick Information Systems, 492 F.3d 520 

(4th Cir. 2007); Mical v. Glick, 581 Fed. Appx. 568 (7th Cir. 

2014); Aviles v. Charles Schwab & Co., Inc., 435 Fed. Appx. 

824 (11th Cir. 2011).

Three frequently cited and persuasive decisions by the First, 

Second, and Fifth Circuits illustrate the kinds of refusals to 

consider evidence that have run afoul of 9 U.S.C. § 10(a)(3). 

The first is Hoteles Condado Beach Etc. v. Union De Etc.,

supra, where an employee was fired and criminally charged 

for exposing himself to a guest. In the employment arbitration that followed, the guest refused to testify without her 

husband present. The arbitrator denied her request, so in lieu 
- 93 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

of the woman’s live testimony, the arbitrator permitted the 

hotel to introduce a transcript of the couple’s testimony during 

the criminal case. But the arbitrator then refused to give the 

transcript any weight and found in the employee’s favor. The 

First Circuit found that this constituted misconduct because 

the “testimony was unquestionably relevant” and no other evidence was available to substantiate or to refute the company’s 

charges. Id. at 40.

The second case is Tempo Shain Corp. v. Bertek, Inc., 120 

F.3d 16, 17 (2d Cir. 1997), where the Second Circuit found 

that an arbitration panel’s refusal to wait for a witness with 

“crucial testimony” constituted misconduct under 9 U.S.C. 

§ 10(a)(3). The witness was temporarily unavailable due to a 

family medical problem, but because the panel deemed that 

his testimony would be cumulative to other evidence, it did 

not continue the hearing. The Second Circuit found that there 

was no reasonable basis to think the testimony was cumulative 

and that therefore, the arbitrator committed misbehavior that 

prejudiced one of the parties by excluding evidence “plainly 

‘pertinent and material to the controversy.’” Tempo Shain 

Corp. v. Bertek, Inc., 120 F.3d at 20.

Lastly, in Gulf Coast Indus. Workers Union v. Exxon Co., 

USA, 70 F.3d 847 (5th Cir. 1995), an employer hired an 

investigator to search for drugs in its refinery. After the investigator found marijuana in one of the employee’s vehicles, 

the employee refused to take a drug test and was fired. In 

the ensuing arbitration, the company attempted to introduce 

test results to prove the discovered substance was marijuana. 

However, the arbitrator said that was unnecessary because 

the test results were already in evidence. After the hearings 

were complete, the arbitrator ordered the employee to be 

reinstated because the employer had not proved the substance 

was marijuana.

In its finding that this constituted misconduct, the Fifth 

Circuit stated, “not only did the arbitrator refuse to consider evidence of the positive drug test, he prevented [the 
- 94 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

company] from presenting additional evidence by misleading 

it into believing that [the test results] had been admitted as a 

business record.” Id. at 850. The court continued to explain 

that the arbitrator’s use of the company’s failure to present 

evidence, which he told them not to present, as a predicate 

for ignoring the test results was misconduct that fell squarely 

within the scope of 9 U.S.C. § 10(a)(3).

Although these cases are not perfectly analogous to the 

current matter, the present case is an example of a similarly 

inexplicable refusal to hear “evidence pertinent and material 

to the controversy.” See 9 U.S.C. § 10(a)(3). The arbitrator not only cut short Lund-Ross’ ability to cross-examine 

Raymond’s principal at the hearing, but he fully denied its 

ability to offer any evidence in response to Raymond’s counterclaims. While the arbitrator and Raymond state there was 

no complaint with the quality of Raymond’s work product, an 

issue existed as to whether Raymond’s delay on the project 

contributed to the liquidated damages assessed against LundRoss. If it did, this issue was certainly pertinent and material 

to the controversy.

[28] While the case law from various jurisdictions unanimously supports the proposition that an arbitrator does not 

need to consider every piece of relevant evidence presented 

to them, the arbitrator must provide an opportunity for the 

parties to present some evidence to support their claims and 

counter the other party’s evidence. See Global Gold Min., LLC 

v. Ayvazian, 612 Fed. Appx. 11, 14 (2d Cir. 2015) (“[f]airness 

requires arbitrators to give a party an ‘adequate opportunity to 

present its evidence and argument’”). We do not believe that 

the arbitrator’s limiting the cross-examination of Raymond’s 

principal, allowing Raymond to file its counterclaims after 

the hearing had already concluded over Lund-Ross’ objection, 

refusing to consider evidence in opposition to those counterclaims, and proceeding to award Raymond the exact amount it 

sought are indica of a fundamentally fair hearing.
- 95 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

Therefore, we determine that by allowing Raymond to file 

its counterclaim after the hearing and then subsequently refusing to consider Lund-Ross’ evidence in opposition to the 

counterclaim, the arbitrator was guilty of misconduct and 

misbehavior that prejudiced Lund-Ross’ rights. See Cong. of 

Holy Family Cath. Ch. v. Mickey Const., 500 So. 2d 802 (La. 

App. 1986) (court found allowing untimely counterclaim to be 

filed and accepting evidence on it at arbitration hearing supported vacatur of award on basis that arbitrators were guilty 

of any other misbehavior by which rights of any party have 

been prejudiced). Accordingly, we conclude that the district 

court erred in not vacating the arbitration award in favor of 

Raymond pursuant to 9 U.S.C. § 10(a)(3) of the FAA. This 

would leave the award in favor of Lund-Ross undisturbed. The 

question then becomes whether partial vacatur of an award is 

allowed under the FAA and Nebraska law.

[29] Neither party provided authority on this particular 

issue, nor did we locate any Nebraska or Eighth Circuit 

cases on point. However, Connecticut has a long history of 

allowing arbitration awards to be severed. The Connecticut 

Supreme Court has routinely found that “an invalid portion 

of an arbitration award may be severed from the remainder of 

the award.” Blondeau v. Baltierra, 337 Conn. 127, 174, 252 

A.3d 317, 348 (2020). The court has stated that (1) “‘[when] 

specific questions have been submitted to the arbitrators, we 

have held that the portion of the arbitrators’ award that was 

entirely outside the submission was void’”; (2) “‘when an 

arbitrator exceeds his authority, the award is void only to the 

extent that he does so, if the part [that] is void can be separated from the rest without injustice and without affecting the 

merits of the part of the award [that] is within the submission’”; and (3) “‘[i]f several distinct matters are submitted 

[to arbitration], the award as to some of them may be good 

while it is void as to the residue.’” Id. at 174, 252 A.3d at 

348-49. See, also, Bodner v. United Services Auto. Ass’n, 222 

Conn. 480, 610 A.2d 1212 (1992); Local 63, Textile Workers 
- 96 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

Union v. Cheney Brothers, 141 Conn. 606, 109 A.2d 240 

(1954); Parmelee v. Allen, 32 Conn. 115 (1864), overruled 

on other grounds, Alexson v. Foss, 276 Conn. 599, 887 A.2d 

872 (2006).

[30] The Second Circuit has similar case law that directly 

references 9 U.S.C. § 10 of the FAA. “A court reviewing an 

arbitration award under the FAA ‘can confirm and/or vacate the 

award, either in whole or in part.’” Scandinavian Reinsurance 

v. Saint Paul, 668 F.3d 60, 71 (2d Cir. 2012). While that opinion does not provide any further discussion regarding the issue, 

it cited a prior Second Circuit opinion that did. See D.H. Blair 

& Co., Inc. v. Gottdiener, 462 F.3d 95 (2d Cir. 2006). In that 

prior opinion, the court stated: 

Because “[a]rbitration awards are not self-enforcing,” 

they must be given force and effect by being converted 

to judicial orders by courts; these orders can confirm 

and/or vacate the award, either in whole or in part. . . . 

Here, [the party] petitioned the court to confirm in part 

and vacate in part the arbitration award. That request 

simply sought to give effect to the arbitration award. The 

partial vacatur of the award sought . . . does not alter 

the nature of the action, which we believe is properly 

considered to involve “enforcing” the arbitration award.

Id. at 104. The court ultimately reversed the decision of the 

district court, but did not take issue with the proposed procedure of only partially vacating the award. 

Based upon the authority cited above, we believe the proper 

result here is to affirm the award in favor of Lund-Ross’ 

claim against the Duke, but to vacate the award in favor of 

Raymond’s claim against Lund-Ross.

VI. CONCLUSION

We conclude that we have jurisdiction over this appeal 

under our state procedural rules and that Raymond did not 

waive its right to arbitration. We further conclude that the 

district court did not err in refusing to vacate the arbitration 
- 97 -

Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LUND-ROSS CONSTRUCTORS V. DUKE OF OMAHA

Cite as 33 Neb. App. 73

award under 9 U.S.C. § 10(a)(4), but did err in not vacating the award under § 10(a)(3) as to Raymond. We therefore 

affirm that part of the district court’s decision in favor of 

Lund-Ross and against the Duke, and we vacate that part of 

the decision of the district court in favor of Raymond and 

against Lund-Ross. 

Affirmed in part, and in part vacated.