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RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS

Cite as 302 Neb. 769

Ronald J. Palagi, P.C., LLC, and Ed

Wheat, appellants, v. Prospect Fu

Holdings (NY), LLC, appel

___ N.W.2d ___

Filed April 5, 2019. No. S-18-193.

1. Judgments: Arbitration and Award: Federal Acts: Appeal and 

Error. In reviewing a decision to vacate, modify, or confirm an arbitration award under the Federal Arbitration Act, 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.

2. Summary Judgment. Summary judgment is proper when the pleadings 

and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from 

those facts and that the moving party is entitled to judgment as a matter 

of law.

3. Summary Judgment: Appeal and Error. In reviewing a summary 

judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment is granted and gives 

such party the benefit of all reasonable inferences deducible from 

the evidence.

4. 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.

5. Arbitration and Award: Federal Acts: Statutes: Contracts. When 

determining if an arbitration clause is governed by Nebraska’s Uniform 

Arbitration Act or the Federal Arbitration Act, the initial question is 

whether the parties’ contract evidences a transaction “involving commerce” as defined by the Federal Arbitration Act.

6. Arbitration and Award: Contracts: Motions to Vacate. When arbitration has already occurred and a party seeks to vacate, modify, or 

Nebraska Supreme Court Online Library

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

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confirm an award, a court’s role is limited by the act governing the 

agreement.

7. Summary Judgment: Motions for Continuance: Affidavits. Neb. Rev. 

Stat. § 25-1335 (Reissue 2016) provides a safeguard against an improvident or premature grant of summary judgment.

8. ____: ____: ____. As a prerequisite for a continuance, or additional 

time or other relief under Neb. Rev. Stat. § 25-1335 (Reissue 2016), a 

party must submit an affidavit stating a reasonable excuse or good cause 

for the party’s inability to oppose a summary judgment motion. Such 

affidavits should specifically identify the relevant information that will 

be obtained with additional time and indicate some basis for the conclusion that the sought information actually exists.

Appeal from the District Court for Douglas County: Leig

Ann Retelsdorf, Judge. Affi

Ronald J. Palagi and Donna S. Colley, of Law Offices of 

Ronald J. Palagi, P.C., L.L.C., for appellants.

Adam W. Barney, of Cline, Williams, Wright, Johnson & 

Oldfather, L.L.P., for appellee.

Heavican, C.J., Cassel, Stacy, Funke, and Freudenber

and Pirtle and Bishop, Judge

Stacy,

After selling an interest in her personal injury claim to 

Prospect Funding Holdings (NY), LLC (Prospect), Edrie 

Arlene Wheat settled her claim. Thereafter, a dispute arose 

over the amount due Prospect. Prospect initiated arbitration 

proceedings against Wheat and the law firm representing 

her, identified in this case as Ronald J. Palagi, P.C., LLC 

(Palagi). Neither Wheat nor Palagi participated in the arbitrations, and awards were eventually entered against each 

of them in favor of Prospect. Wheat and Palagi brought this 

interpleader action against Prospect in the district court for 

Douglas County, but did not seek to vacate, modify, or correct the arbitration awards. Prospect filed a motion to confirm 

the arbitration awards and a motion for summary judgment, 
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and the district court granted both. Wheat and Palagi appeal. 

We affirm.

BACKGROUND

Agreeme

At all relevant times, Palagi represented Wheat in connection 

with her personal injury claim. On July 5, 2016, with Palagi’s 

knowledge, Wheat and Prospect entered into what was captioned a “Sale and Repurchase Agreement.” Under that agreement, Wheat sold Prospect the rights to any sums recovered on 

her personal injury claim, up to $23,120, in exchange for a net 

payment of $5,000. The agreement included a “[r]epurchase 

[s]chedule” which allowed Wheat to repurchase the proceeds 

of her claim for a set amount that increased every 6 months, 

up through January 1, 2020. The repurchase schedule applied 

a 60-percent annual percentage rate. As relevant here, Wheat 

could have repurchased the proceeds of her claim on or before 

January 1, 2017, for $8,840.

In the event of a breach, the agreement called for liquidated damages “in the amount of twice the prospect ownership amount regardless of the outcome of the legal claim 

or the amount of the proceeds. In addition, [the] breaching 

party shall pay for all collection costs, including reasonable 

attorney’s fees and expenses of [the] non-breaching party.” 

The agreement also contained an arbitration provision which 

expressly referenced the Federal Arbitration Act (FAA)1 and 

provided in relevant part:

The parties waive the right to trial by jury and waive 

any right to pursue disputes on a class wide basis in 

any action or proceeding instituted with respect to this 

agreement. The parties agree that the issue of arbitrability shall be decided by the arbitrator and not by any 

other person. That is, the question of whether a dispute 

itself is subject to arbitration shall be decided solely by 

1 9 U.S.C. §§ 1 through 16 (2012).
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the arbitrator and not, for example, by any court. In so 

doing, the intent of the parties is to divest any and all 

courts of jurisdiction in disputes involving the parties, 

except for the confirmation of the award and enforcement. The [FAA] applies to this agreement and arbitration provision. We each agree that the FAA’s provisions—not state law—govern all questions of whether a 

dispute is subject to arbitration. Any dispute or disagreement between these parties arising under this agreement 

or otherwise of any nature whatsoever including, but 

not limited to, those sounding in constitutional, statutory, or common law theories as to the performance of 

any obligations, the satisfaction of any rights, and/or the 

enforceability hereof, shall be resolved through demand 

by any party and/or interested party to arbitrate the dispute in New York in and under the laws of the State of 

New York and shall submit the same to a neutral arbitration association for resolution pursuant to its single 

arbitrator, expedited rules. . . . The arbitration decision 

shall be final and binding in all respects and shall be 

non-appealable. Any person may have a court of competent jurisdiction confirm the arbitration award as a judgment of such court and enter into its record the findings 

of such arbitrators for all purposes, including for the 

enforcement of the award. The prevailing party in any 

dispute shall be entitled to all reasonable attorneys’ fees 

and costs, expenses and disbursements with respect to 

such dispute.

The agreement, which was signed by Wheat as the “seller” 

and a Prospect representative as the “purchaser,” included the 

following paragraph which was signed by Palagi:

[Palagi] hereby certifies to [Prospect] that [Palagi] has 

reviewed the terms and conditions of this Sales [sic] and 

Repurchase Agreement and explained such terms and 

conditions to [Wheat], including all costs and fees and 

including [Wheat’s] ability to repurchase the Prospect 
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Ownership Amount according to the Repurchase Schedule 

and Amount of Repurchase. I have a written fee agreement with [Wheat] to pay my fees contingent on the 

outcome of the case. I agree that all disputes regarding 

this agreement will be resolved via arbitration and I have 

explained this to [Wheat]. All proceeds of the legal claim 

will be disbursed via the attorney’s trust account and the 

attorney is following the written instructions of [Wheat] 

with regard to this Sale and Repurchase Agreement, and 

Irrevocable Letter of Directions which [the] attorney has 

acknowledged.

When Wheat signed the agreement, she also signed an 

“Irrevocable Letter of Direction” addressed to Palagi. This 

letter generally instructed Palagi, after payment of all legal 

fees, to disburse any recovery amounts to Prospect up to the 

amount covered in the contract before disbursing the remainder 

to Wheat. The letter also directed that if any dispute arose as 

to the amount owed to Prospect, Palagi was to pay the nondisputed amount to Prospect and hold the disputed amount 

in his client trust account until the dispute was resolved 

through arbitration. The letter included an attorney acknowledgment of all instructions contained therein, and Palagi signed 

that acknowledgment.

Settleme

In December 2016, Wheat settled her personal injury claim 

for an amount which is not disclosed in the record. Palagi set 

aside $8,840 of the settlement proceeds—an amount equal to 

the repurchase amount at that time—in his client trust account 

and disbursed the remainder of the settlement funds. The 

record is unclear regarding any attempts made by Wheat or 

Palagi thereafter to repurchase the proceeds under the terms of 

the agreement. However, once Prospect learned it would not 

be paid the full amount due under the agreement, it initiated 

separate arbitration proceedings—one against Palagi and the 

other against Wheat.
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Arbitration Procee

and Aw

After arbitration proceedings were initiated, “Arbitration 

Resolution Services” sent an email to Wheat, advising that 

Prospect had initiated arbitration proceedings and that Wheat 

“ha[d] failed to sign into the [arbitrator’s] website and verify [her] participation in the arbitration.” The email warned, 

“Unless you do so by Feb[.] 02, 2017, the arbitration will proceed without your involvement and an arbitration award may 

be entered against you.” An attorney with the Palagi law firm 

responded to this email, arguing generally that the agreement 

was void under Nebraska law. Neither Wheat nor Palagi otherwise participated in the arbitrations, and they were found by 

the arbitrator to have provided “no response.”

On June 8, 2017, the arbitrator issued an award in favor of 

Prospect and against Palagi in the sum of $23,120. Thereafter, 

on August 3, 2017, the arbitrator issued an award in favor 

of Prospect and against Wheat in the sum of $46,240, a 

sum that represented the amount of liquidated damages due 

under the agreement. The arbitrator found the agreement 

between Wheat and Prospect was valid and enforceable and 

had been breached.

Interpleader A

Eight days after the first arbitration award was issued, 

Wheat, still represented by Palagi, filed what was styled an 

interpleader action in the district court for Douglas County. 

The complaint alleged Palagi was in possession of $8,840 

to which both Wheat and Prospect claimed entitlement. The 

complaint also alleged the agreement between Wheat and 

Prospect was invalid and unenforceable for a variety of reasons, including that Prospect was not registered to transact business in Nebraska, the agreement did not comply 

with Nebraska’s Nonrecourse Civil Litigation Act,2 and the 

2 Neb. Rev. Stat. §§ 25-3301 to 25-3309 (Reissue 2016).
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interest rate charged was usurious. The complaint requested 

an order directing the disputed sums to be deposited with the 

court pending further determination of the proper allocation 

of the funds, and also asking the court to determine the validity of the agreement and enjoin Prospect’s collection efforts 

in the meantime. Palagi amended the complaint on June 27, 

2017, to include the Palagi law firm as a party plaintiff and 

filed a second amended complaint on November 16 to correct Prospect’s legal name. Neither the original, amended, nor 

second amended complaint mentioned the arbitration proceedings, and none requested the awards be vacated, modified, 

or corrected.

On November 20, 2017, Prospect filed an answer raising 

the affirmative defense of “[a]rbitration and [a]ward” and, in 

a counterclaim, seeking judicial confirmation of the arbitration 

awards. At the same time, Prospect filed a motion to confirm 

the arbitration awards pursuant to 9 U.S.C. § 9 of the FAA. 

Prospect also moved for summary judgment on the amended 

complaint, arguing that there was no genuine issue of material 

fact and that Prospect was entitled to judgment as a matter of 

law on its affirmative defense of arbitration and award.

A hearing on Prospect’s motions was held January 22, 2018. 

Prospect offered an affidavit which included the agreement, the 

arbitration notices, and the arbitration awards. This evidence 

was received without objection, and no evidence was offered in 

opposition. Neither Wheat nor Palagi argued they lacked notice 

of the arbitration proceedings or awards.

During the hearing, the judge observed that the operative 

complaint appeared to be focused on rescinding or voiding 

the agreement, remarking, “I’m concerned . . . about why the 

arbitration award was not addressed within the appropriate 

time frame.” Wheat’s counsel responded it was the plaintiffs’ 

position that “the overall contract . . . was void” and that therefore, Prospect “could not go forward with arbitration on a void 

contract.” The court received the parties’ briefing and took the 

motions under advisement.
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Seven days later, while the motions were still under submission, Palagi filed a motion to withdraw as Wheat’s counsel, 

citing a conflict of interest. At the same time, Wheat and Palagi 

filed a motion seeking leave to further amend their complaint 

“to make it clear that [Wheat and Palagi have] been and [are] 

moving the Court to vacate, modify or correct the arbitration 

award as described in the [FAA].” The motion for leave to 

amend was noticed for hearing on February 13, 2018, but did 

not ask the court to defer ruling on Prospect’s motions for confirmation and summary judgment.

On February 2, 2018, the district court entered an order 

granting Prospect’s motion to confirm the arbitration awards 

and also granting Prospect’s motion for summary judgment. 

The court found the agreement was governed by the FAA, reasoning that it involved interstate commerce and that the parties 

had expressly agreed the FAA would apply. The court went on 

to hold:

[Wheat and Palagi] do not contend that they sought to 

vacate, modify, or correct the arbitration award within 

the three months provided by the FAA. Instead, [they] 

argue that there is a genuine issue of material fact as to 

whether the . . . [a]greement is void under Nebraska law. 

However, attempts to challenge the arbitration awards 

are required to have been filed within three months of 

the awards. [Wheat and Palagi] did not do so. [Their] 

Complaint ignores the arbitration clause and awards in 

their entirety. [They] did not seek to have the arbitration 

awards set aside within the time limits prescribed by the 

FAA. They have waived any defenses to enforcement of 

the arbitration awards and the arbitration awards are subject to confirmation.

The court thus granted both the motion to confirm and the 

motion for summary judgment on the operative complaint. The 

court’s February 2 order provided:

[Prospect’s] Motion to Confirm Arbitration Awards and 

Motion for Summary Judgment are granted. The Court 
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orders that judgment be entered in the amount of $46,240 

in favor of Prospect . . . and against Wheat and in 

the amount of $23,140 in favor of Prospect . . . and 

against Palagi. [Prospect’s] motion for summary judgment 

on [Wheat and Palagi’s] claim is granted. [Wheat and 

Palagi’s] claim is dismissed with prejudice.

The February 2, 2018, order did not address Palagi’s pending motion to withdraw as Wheat’s counsel or the pending 

motion to further amend the complaint, neither of which had 

yet proceeded to hearing. But 11 days later, on February 13, 

a hearing on both these motions was held as originally scheduled. At that hearing, Wheat and Palagi also moved the court to 

alter or amend the February 2 judgment.

In an order entered February 15, 2018, the district court 

overruled all pending motions. It overruled the motion to 

amend the complaint, finding that the proposed amendment 

would not create a triable issue of fact. It overruled the motion 

to alter or amend the judgment entered February 2, reasoning 

the motion was not brought within 10 days as required by Neb. 

Rev. Stat. § 25-1329 (Reissue 2016). And it found Palagi’s 

motion to withdraw was moot because the case was effectively concluded.

A timely notice of appeal was filed, and we moved the case 

to our docket on our own motion.

ASSIGNMENTS OF ERROR

Wheat and Palagi assign, restated, that the trial court erred 

in (1) granting Prospect’s motion for summary judgment before 

discovery was concluded and (2) failing to find the agreement was invalid and unenforceable for any of the following 

reasons: (a) Prospect was not properly registered to transact 

business in Nebraska, (b) the agreement is usurious and violates Neb. Rev. Stat. § 45-105 (Reissue 2010), (c) the agreement’s liquidated damages provision violates public policy, 

(d) the agreement does not comply with the Nonrecourse Civil 
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Litigation Act,3 and (e) the agreement is champertous and violates public policy.

STANDARD OF REVIEW

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

arbitration award under the FAA, an appellate court is obligated 

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

to questions of law.4 However, the trial court’s factual findings 

will not be set aside on appeal unless clearly erroneous.5

[2,3] Summary judgment is proper when the pleadings and 

evidence admitted at the hearing disclose no genuine issue 

regarding any material fact or the ultimate inferences that may 

be drawn from those facts and that the moving party is entitled 

to judgment as a matter of law.6 In reviewing a summary judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment is granted 

and gives such party the benefit of all reasonable inferences 

deducible from the evidence.7

ANALYSIS

[4] Before addressing the arbitration issues raised by the 

parties, we must decide whether our analysis is governed by 

Nebraska’s Uniform Arbitration Act (UAA), or by the FAA. 

Arbitration in Nebraska is governed by the FAA if it arises 

from a contract involving interstate commerce; otherwise, it is 

governed by the UAA.8

[5] When determining if an arbitration clause is governed by 

the UAA or the FAA, the initial question is whether the parties’ 

3 See §§ 25-3301 to 25-3309.

4 First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S. Ct. 1920, 

131 L. Ed. 2d 985 (1995).

5 Id.

6 Colwell v. Mullen, 301 Neb. 408, 918 N.W.2d 858 (2018).

7 Id.

8 State v. Henderson, 277 Neb. 240, 762 N.W.2d 1 (2009).
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contract evidences a transaction “‘“involving commerce”’” as 

defined by the FAA.9 That is because the FAA applies to any 

“written provision in . . . a contract evidencing a transaction 

involving commerce.”10

The U.S. Supreme Court has “interpreted the term ‘involving commerce’ in the FAA as the functional equivalent of the 

more familiar term ‘affecting commerce’—words of art that 

ordinarily signal the broadest permissible exercise of Congress’ 

Commerce Clause power.”11 Because Congress’ Commerce 

Clause power may be exercised in individual cases without 

showing any specific effect upon interstate commerce where 

in the aggregate the economic activity in question would represent a general practice subject to federal control, the same 

must be said for application of the FAA.12 This concept was 

reinforced by the Court in Citizens Bank v. Alafabco, Inc.,

13

which held the FAA applies “if in the aggregate the economic 

activity in question would . . . bear on interstate commerce in 

a substantial way.”

In the instant case, we agree with the district court that the 

FAA governs the parties’ agreement. Neither party argues to 

the contrary. The parties specifically contracted for the FAA to 

apply, and “[n]o elaborate explanation is needed . . .”14 to show 

that an agreement between a foreign company and a Nebraska 

resident to purchase rights involving personal injury settlement 

funds affects interstate commerce.

9 Wilczewski v. Charter West Nat. Bank, 295 Neb. 254, 260, 889 N.W.2d 63, 

68 (2016) (quoting Aramark Uniform & Career Apparel v. Hunan, Inc., 

276 Neb. 700, 757 N.W.2d 205 (2008), quoting 9 U.S.C. § 2).

10 9 U.S.C. § 2.

11 Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S. Ct. 2037, 156 L. 

Ed. 2d 46 (2003) (quoting Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 

265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995)).

12 Wilczewski, supra note 9.

13 Citizens Bank, supra note 11, 539 U.S. at 57.

14 Id., 539 U.S. at 58. See, also, Wilczewski, supra note 9.
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We thus consider the issues raised in this appeal within 

the framework of the FAA. We first consider the challenges 

to the validity and enforceability of the agreement and then 

address the argument that summary judgment was entered 

prematurely.

Judicial Confirma

In all but their first assignment of error, Wheat and Palagi 

argue the underlying agreement between Wheat and Prospect 

was invalid and unenforceable. They assert a number of reasons why the agreement was unenforceable, only some of 

which were presented to the district court. Due to the procedural posture of this case, we do not address the merits of any 

of these arguments because, as explained below, the validity 

and enforceability of the underlying agreement was not before 

the district court on the motion to confirm arbitration.

This is not a case in which the district court was asked 

to consider the enforceability of the arbitration provisions 

in the context of a motion to compel arbitration or a request 

to stay litigation pending arbitration. Instead, as the district 

court found, the arbitration agreement was not mentioned 

at all in this case until after the arbitration proceedings had 

been completed and awards had been entered. Given that 

procedural posture, the court’s role regarding the arbitration 

was limited.

[6] When arbitration has already occurred and a party seeks 

to vacate, modify, or confirm an award, a court’s role is limited 

by the act governing the agreement.15 Where, as here, the FAA 

governs the agreement, the court’s role is strictly confined by 

9 U.S.C. §§ 9 through 11 of that act.16 As the U.S. Supreme 

Court has explained, 9 U.S.C. §§ 10 and 11 provide the exclusive regimes of judicial review for agreements governed by 

15 See Hall Street Associates, L. L. C. v. Mattel, Inc., 552 U.S. 576, 128 S. 

Ct. 1396, 170 L. Ed. 2d 254 (2008).

16 Id.
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the FAA.17 And motions to vacate, modify, or correct an award 

pursuant to §§ 10 or 11 are governed by 9 U.S.C. § 12, which 

states in part that “[n]otice of a motion to vacate, modify, 

or correct an award must be served upon the adverse party 

or his attorney within three months after the award is filed 

or delivered.”

The second amended complaint was filed November 16, 

2017, several months after the arbitration awards were issued, 

yet it did not mention the arbitration proceedings or seek to 

modify, correct, or vacate the awards. Neither the original 

complaint, the amended complaint, nor the second amended 

complaint mentioned the arbitration proceedings at all, and 

none sought any relief related to the arbitration proceedings.

Instead, the first time arbitration was raised in this litigation was on November 20, 2017, when Prospect filed 

its answer alleging the arbitration awards as an affirmative 

defense and simultaneously moved to confirm the awards 

and moved for summary judgment on the interpleader complaint. By this time, the 3-month time limit for moving to 

judicially vacate, modify, or correct the arbitration awards had 

lapsed, and no one contends otherwise. Rather than moving to 

vacate the arbitration awards, Wheat and Palagi continued to 

focus their efforts on litigating the validity and enforceability of the overall agreement. Eventually, while the motions 

to confirm the awards and grant summary judgment were 

under submission, Wheat and Palagi sought leave to amend 

their operative complaint to include a request to vacate the 

arbitration awards, but the district court denied such amendment as futile, and no error has been assigned to that ruling

on appeal.

If Wheat and Palagi had filed a timely motion to vacate the 

awards, the legal analysis required by the district court would 

have been different. But this case does not require analysis 

17 Id.
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of whether any grounds exist for vacating the awards against 

Wheat and Palagi, because there has been no timely motion 

seeking such relief. As such, the district court correctly found 

it was constrained by § 9 of the FAA, which states in relevant part:

[A]t any time within one year after the award is made any 

party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon 

the court must grant such an order unless the award is 

vacated, modified, or corrected as prescribed in sections 

10 and 11 of this title.

The U.S. Supreme Court has said § 9 “carries no hint of 

flexibility.”18 It has explained that pursuant to § 9:

On application for an order confirming the arbitration 

award, the court “must grant” the order “unless the award 

is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.” There is nothing malleable 

about “must grant,” which unequivocally tells courts to 

grant confirmation in all cases, except when one of the 

“prescribed” exceptions applies.19

Thus, when Prospect moved to confirm the arbitration awards, 

the district court was required to grant that motion “unless the 

award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.”20

In Hartman v. City of Grand Island,

21 a case governed by the 

UAA, we considered similar circumstances. There, we affirmed 

a district court order confirming an arbitration award where the 

party opposing the confirmation had not filed a timely motion 

to vacate, modify, or correct the award as permitted under the 

UAA. We noted the limited role of the court was to confirm 

18 Hall Street Associates, L. L. C., supra note 15, 552 U.S. at 587.

19 Id.

20 9 U.S.C. § 9.

21 Hartman v. City of Grand Island, 265 Neb. 433, 657 N.W.2d 641 (2003).
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the award under such circumstances,22 and we did not address 

the merits of challenges being raised to the validity or enforceability of the award. We explained that where arbitration is 

concerned, “‘“the courts are not equipped to provide the same 

judicial review given to structured judgments defined by procedural rules and legal principles. Parties should be aware that 

they get what they bargain for and that arbitration is far different 

from adjudication.”’”23

Similar provisions under the FAA required the district court 

to confirm the arbitration awards when no timely motion to 

vacate, modify, or correct the awards had been filed.24 On this 

record, the district court correctly found that Prospect was 

entitled to confirmation of the arbitration awards, and no error 

has been assigned to that confirmation on appeal.

Instead, Wheat and Palagi’s assignments of error focus on 

a myriad of legal challenges to the validity and enforceability 

of the underlying agreement. But they ignore that these issues 

have already been resolved against them in binding arbitration, and they did not thereafter seek to vacate, modify, or 

correct the arbitration award within the time period permitted 

under the FAA. Given the procedural posture of this case, the 

assignments of error raised by Wheat and Palagi challenging 

the validity and enforceability of the underlying agreement 

lack merit and are premised on a fundamental misunderstanding of the limited role of the court once an arbitration award 

is entered, a motion to confirm is filed, and there has been no 

timely motion to vacate, modify, or correct the award.

22 Id. at 437, 657 N.W.2d at 645 (“‘[w]ithin sixty days of the application 

of a party, 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 and 25-2614,’” quoting Neb. Rev. Stat. § 25-2612 

(Reissue 2016)).

23 Id. at 437-38, 657 N.W.2d at 645-46.

24 9 U.S.C. § 9.
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Summary Judgment 

Not Prematur

In their remaining assignment of error, Wheat and Palagi 

claim the district court erred in granting summary judgment 

before discovery had been completed. They argue generally 

that the motion was ruled on before they had “the opportunity to complete reasonable, relevant discovery,”25 but they 

do not identify what discovery was incomplete or otherwise 

challenge the granting of summary judgment. We confine our 

analysis accordingly.

[7] Neb. Rev. Stat. § 25-1335 (Reissue 2016) provides a 

safeguard against an improvident or premature grant of summary judgment,26 but Wheat and Palagi did not, at any time 

before the court ruled on the summary judgment motion, seek 

to invoke the protections of that statute, which provides:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present 

by affidavit facts essential to justify his opposition, the 

court may refuse the application for judgment or may 

order a continuance to permit affidavits to be obtained 

or depositions to be taken or discovery to be had or may 

make such other order as is just.

[8] We have explained that “[a]s a prerequisite for a continuance, or additional time or other relief, a party is required 

to submit an affidavit stating a reasonable excuse or good 

cause for the party’s inability to oppose a summary judgment 

motion.”27 Such affidavits should specifically identify the relevant information that will be obtained with additional time 

and indicate some basis for the conclusion that the sought 

information actually exists.28

25 Brief for appellants at 6.

26 See Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).

27 Gaytan v. Wal-Mart, 289 Neb. 49, 55-56, 853 N.W.2d 181, 191 (2014).

28 Lombardo, supra note 26.
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Nebraska Supreme Court Advance S

302 Nebraska Report

RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS

Cite as 302 Neb. 769

Here, no such motion or showing was made before Prospect’s 

motion for summary judgment was submitted to and ruled on 

by the district court. We can find no abuse of discretion in 

failing to grant a continuance that was never requested. This 

assignment of error is meritless.

CONCLUSION

Wheat and Palagi assert assignments of error challenging the validity and enforceability of the agreement between 

Wheat and Prospect. But the validity and enforceability of that 

agreement was determined in binding arbitration. Wheat and 

Palagi did not participate in the arbitration or ask the district 

court to enjoin the arbitration, and once awards were entered 

against them, they did not move to vacate, modify, or correct 

those awards within the time permitted by the FAA. As such, 

when Prospect moved to confirm the arbitration awards under 

§ 9 of the FAA, the district court was required by the FAA to 

do so. Finding no merit to the assignments of error, we affirm 

the judgment of the district court.

Affirm

Miller-Lerman and Papik, JJ., not participat