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BOYD v. COOK

Cite as 298 Neb. 819

Scott T. Boyd, M.D., appell

Great Plains Diagnostics, LLC, ap

v. John Cook, M.D., et al., appelle

___ N.W.2d ___

Filed February 2, 2018. No. S-17-177.

1. Jurisdiction: Appeal and Error. When a jurisdictional question does 

not involve a factual dispute, determination of a jurisdictional issue is 

a matter of law which requires an appellate court to reach a conclusion 

independent from the trial court’s.

2. Actions: Arbitration and Award: Appeal and Error. While a court’s 

decision to issue a stay in an action is generally reviewed under an 

abuse of discretion standard of review, the decision whether to stay 

proceedings and compel arbitration is a question of law that an appellate 

court reviews de novo.

3. 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.

4. Jurisdiction: Legislature: Appeal and Error. In order for an appellate 

court to have jurisdiction over an appeal, appellate jurisdiction must be 

specifically provided by the Legislature.

5. Judgments: Final Orders: Words and Phrases. A final judgment is 

one that disposes of the case either by dismissing it before hearing is 

had upon the merits, or after trial by rendition of judgment for the plaintiff or defendant.

6. Judgments: Words and Phrases. Every direction of a court or judge, 

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

7. Final Orders: Appeal and Error. The only three types of final orders 

which may be reviewed on appeal are (1) an order which affects a substantial right and which 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 action after judgment is rendered.

Nebraska Supreme Court Online Library

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

03/16/2018 01:11 AM CDT
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8. Final Orders. Under Neb. Rev. Stat. § 25-1315 (Reissue 2016), an 

order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not final and is subject to revision at 

any time before the entry of judgment adjudicating all the claims and the 

rights and liabilities of all the parties.

9. Dismissal and Nonsuit: Final Orders. Generally, an order of dismissal 

is a final, appealable order.

10. Actions: Appeal and Error. An order issuing a stay within an action is 

generally not appealable.

11. Actions: Dismissal and Nonsuit: Final Orders. A stay that is tantamount to a dismissal of an action or has the effect of a permanent denial 

of the requested relief is a final order.

12. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the 

power of a tribunal to hear and determine a case in the general class or 

category to which the proceedings in question belong and to deal with 

the general subject matter involved.

13. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a 

judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of 

the parties.

14. ____. A lack of subject matter jurisdiction may be raised at any time by 

any party or by the court sua sponte.

15. ____. Just as parties may not confer subject matter jurisdiction on a 

court by consent, neither may parties deprive a court of subject matter 

jurisdiction by their own agreement.

16. Arbitration and Award: Contracts: Venue. Arbitration provisions 

are properly understood as contractual agreements between parties to 

resolve their disputes in an arbitral venue.

17. Arbitration and Award: Contracts: Parties. A contractual arbitration 

provision creates a contractual right which may be enforced only by a 

party to the contract.

18. Arbitration and Award: Contracts: Waiver. Like other contractual 

rights, an agreement to arbitrate can be waived by the parties.

19. Arbitration and Award: Contracts. Arbitration provisions are not 

self-executing.

Appeal from the District Court for Douglas County: Shell

R. Stratman, Judge. Reversed and remanded for furth

proceedings.

Steven A. Klenda and Geoffrey N. Blue, of Klenda, Gessler 

& Blue, L.L.C., and Robert W. Futhey and Mark Laughlin, of 
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Fraser Stryker, P.C., L.L.O., for appellant and appellee Great 

Plains Diagnostics, LLC.

James J. Frost, of McGrath, North, Mullin & Kratz, P.C., 

L.L.O., for appellees.

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

Funke, JJ

Cassel, J.

I. INTRODUCTION

Nearly 3 years into litigation between two doctors and various associated business entities, the district court determined 

that because of arbitration and venue provisions in an employment contract, it lacked jurisdiction. The court indefinitely 

stayed a claim for dissolution of one entity and dismissed 

all other claims. This appeal followed. Because the arbitration provision, which neither party sought to enforce, did not 

deprive the court of jurisdiction, we reverse, and remand for 

further proceedings.

II. BACKGROUND

John Cook, M.D., owned Midwest Pain Clinic, P.C. (Midwest 

Pain). In early 2012, Midwest Pain employed Scott T. Boyd, 

M.D., as an anesthesiologist. Midwest Pain and Boyd detailed 

the terms of Boyd’s employment in a written contract.

The employment contract contained a jurisdiction and venue 

provision: “Except as set forth in [an arbitration provision], 

the [c]ourt located in Union County, South Dakota, shall 

have jurisdiction and be the venue of all disputes between 

[Midwest Pain] and [Boyd], whether such disputes arise from 

this [a]greement or otherwise.” And it contained an arbitration 

provision stating that “any dispute or controversy arising out 

of the interpretation or operation” of the contract “shall be 

resolved by arbitration” as set forth in the agreement.

Based on Boyd’s experience operating a urinalysis laboratory, Boyd, Cook, and Cook’s son, Jacob Cook (Jacob), formed 

Great Plains Diagnostics, LLC (Great Plains), in early 2013. 
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Great Plains was a urinalysis laboratory that operated in a 

building owned by an associated entity and in which Midwest 

Pain and another associated entity also operated. Boyd was the 

majority owner and manager of Great Plains, while Jacob was 

its executive director. Jacob was also the office manager of 

Midwest Pain.

Disputes arose regarding access to documents and billing 

data, billing procedures, and billing codes assigned to services 

provided. In October 2013, Jacob resigned his positions at both 

Midwest Pain and Great Plains to take another job out of state. 

That same month, offers regarding a partnership and a draft 

separation agreement were refused.

Things apparently came to a head in early January 2014. On 

January 10, Boyd’s employment with Midwest Pain was terminated and he was locked out of Great Plains’ offices.

In April 2014, Cook and Jacob sued to dissolve Great Plains. 

They sought dissolution, the appointment of a receiver to wind 

up Great Plains’ business, and an order enjoining Boyd from 

disposing of any of Great Plains’ assets.

Additional claims, styled as counterclaims, followed. Boyd 

and Great Plains eventually asserted 10 different claims against 

Cook, Jacob, Midwest Pain, and other associated entities. 

Midwest Pain asserted a counterclaim against Boyd, and it 

made a separate counterclaim with another entity against 

Great Plains.

Cook, Jacob, Midwest Pain, and two other entities moved 

for summary judgment on 7 of the 10 claims made by Boyd 

and Great Plains, which motion, in February 2016, the district 

court overruled in part and sustained in part. The court granted 

summary judgment on four of the claims by Boyd and Great 

Plains and on two other claims as to Boyd, but not as to Great 

Plains. And the court denied summary judgment on one of 

the claims.

In January 2017, the district court dismissed sua sponte all 

of the claims in the case other than the dissolution proceeding 

as to Great Plains. The court noted that Boyd’s employment 
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contract with Midwest Pain contained an arbitration provision 

and a provision that jurisdiction and venue for all disputes 

between Boyd and Midwest Pain are proper in Union County, 

South Dakota. The court concluded that it lacked jurisdiction over the causes of action in the case, excluding the Great 

Plains dissolution proceeding, and dismissed those claims. 

It stayed the dissolution proceeding pending the outcome of 

arbitration. Boyd moved the court to reconsider its dismissal, 

which motion the court overruled.

Boyd appealed the district court’s order of dismissal and its 

prior order sustaining in part the motion for summary judgment. We moved the appeal to our docket.

III. ASSIGNMENTS OF ERROR

Boyd’s assignments of error, restated, are that the district 

court erred by (1) dismissing the case for lack of jurisdiction, (2) granting summary judgment on his claim under the 

Nebraska Wage Payment and Collection Act, and (3) granting 

summary judgment on his fraudulent inducement claim. Cook 

and others take no position on the district court’s sua sponte 

dismissal, but argue that this court lacks appellate jurisdiction to review the latter two assignments of error relating to 

the district court’s partial grant of summary judgment. In the 

alternative, they argue that the district court correctly granted 

summary judgment on the claims from which Boyd appeals.

IV. STANDARD OF REVIEW

[1] When a jurisdictional question does not involve a factual 

dispute, determination of a jurisdictional issue is a matter of 

law which requires an appellate court to reach a conclusion 

independent from the trial court’s.1

[2] While a court’s decision to issue a stay in an action is 

generally reviewed under an abuse of discretion standard of 

1 Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, ante p. 705, ___ 

N.W.2d ___ (2018).
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review,2 the decision whether to stay proceedings and compel 

arbitration is a question of law that an appellate court reviews 

de novo.3

V. ANALYSIS

1. Jurisdicti

[3] 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.4 To determine whether 

we have appellate jurisdiction to review the district court’s 

order of dismissal or its prior summary judgment order, we 

first recall principles of Nebraska law governing appellate 

jurisdiction.

(a) Nebraska Appellate 

Jurisdiction

[4] Under the Nebraska Constitution, this court has only 

“such appellate jurisdiction as may be provided by law.”5 That 

is to say, “in order for this court to have jurisdiction over an 

appeal, appellate jurisdiction must be specifically provided by 

the Legislature.”6

[5,6] The Legislature has provided that appellate courts have 

jurisdiction to review the judgments and final orders of the 

district courts.7 And the Legislature has defined a “judgment” 

2 See, Sullivan v. Storz, 156 Neb. 177, 55 N.W.2d 499 (1952). See, also, 

Lamb v. Dist. Ct. of Fourth Judicial Dist., 356 Mont. 534, 234 P.3d 893 

(2010); In re Application for Water Rights of U.S., 101 P.3d 1072 (Colo. 

2004).

3 See Good Samaritan Coffee Co. v. LaRue Distributing, 275 Neb. 674, 748 

N.W.2d 367 (2008).

4 Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147 

(2017).

5 Neb. Const. art. V, § 2. Accord Heckman v. Marchio, 296 Neb. 458, 894 

N.W.2d 296 (2017).

6 Heckman v. Marchio, supra note 5, 296 Neb. at 460, 894 N.W.2d at 299.

7 Neb. Rev. Stat. § 25-1911 (Reissue 2016).
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as “the final determination of the rights of the parties in an 

action.”8 A final judgment is one that disposes of the case 

either by dismissing it before hearing is had upon the merits, or 

after trial by rendition of judgment for the plaintiff or defendant.9

 Conversely, every direction of a court or judge, made or 

entered in writing and not included in a judgment, is an order.10

[7] “Final orders” are also defined by statute:

An order affecting a substantial right in an action, 

when such order in effect determines the action and prevents a judgment, and an order affecting a substantial 

right made in a special proceeding, or upon a summary 

application in an action after judgment, is a final order 

which may be vacated, modified or reversed, as provided 

in this chapter.11

Thus, the only three types of final orders which may be 

reviewed on appeal are (1) an order which affects a substantial 

right and which 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 action after judgment 

is rendered.12

Also, Neb. Rev. Stat. § 25-1315 (Reissue 2016) provides 

that when a case involves multiple claims or multiple parties, a 

party may generally only appeal when all claims and the rights 

of all parties have been resolved. If a court issues an order that 

is final as to some, but not all, of the claims or parties, such an 

order is appealable “only upon an express determination that 

there is no just reason for delay and upon an express direction 

for the entry of judgment.”13 In the absence of such an entry 

8 Neb. Rev. Stat. § 25-1301(1) (Reissue 2016).

9 In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34 (2016).

10 Id.

11 Neb. Rev. Stat. § 25-1902 (Reissue 2016).

12 See State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017).

13 § 25-1315(1).
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of judgment, orders adjudicating fewer than all claims or the 

rights of fewer than all the parties are not final and are “subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the 

parties.”14 Thus, absent an entry of judgment under § 25-1315, 

no appeal will lie unless all claims have been disposed as to all 

parties in the case.15

(b) Finality of District 

Court’s Dismissal

[8] As an initial matter, our appellate review in this case 

encompasses only the district court’s dismissal and stay order 

and not its prior summary judgment order. As we read the 

court’s dismissal order, it dismissed all nondissolution claims, 

including those claims on which it previously granted summary judgment. Under § 25-1315(1), an order that “adjudicates fewer than all the claims or the rights and liabilities 

of fewer than all the parties” is not final and “is subject to 

revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Because the district court’s prior summary judgment 

order granted summary judgment on only some of the claims 

and left other claims to be resolved at trial, the order did not 

adjudicate all of the claims in the case and was thus “subject 

to revision at any time.”16 In light of the provisional nature of 

the prior summary judgment order, we understand the district 

court’s order dismissing “all matters, not to include the judicial 

dissolution of Great Plains,” to include those claims on which 

the court previously granted summary judgment. The district court’s dismissal of those claims for lack of jurisdiction 

14 Id.

15 See Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007). 

See, generally, Castellar Partners v. AMP Limited, 291 Neb. 163, 864 

N.W.2d 391 (2015) (discussing § 25-1315).

16 See § 25-1315(1).
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effectively vacated its prior summary judgment order. As a 

result, our review in this appeal is limited to the court’s dismissal and stay order.

Before reviewing the appealability of the dismissal order 

under the general final order statute, we first note that the 

order is not made appealable by the provisions of Nebraska’s 

Uniform Arbitration Act. Neb. Rev. Stat. § 25-2620 (Reissue 

2016) authorizes appellate jurisdiction to review certain 

arbitration-related orders, such as an order denying an application to compel arbitration or an order granting an application 

to stay arbitration. But this section does not address whether a 

party may appeal an order granting an application to compel 

arbitration or to stay judicial proceedings.17 Appellate jurisdiction to review an order compelling arbitration and staying the 

action is determined by looking to the general final order statute, § 25-1902.18 Here, the district court’s order, which stayed 

the dissolution proceeding pending the outcome of arbitration 

and dismissed all other claims, does not fall within the limited 

scope of § 25-2620.

Neither is the order here reviewable as a judgment. The district court’s order was not a “final determination of the rights 

of the parties in an action”19 because it did not determine all 

of the parties’ rights. The order left the dissolution proceeding unresolved, staying that claim pending the outcome of 

arbitration.20

[9] It necessarily follows that we have jurisdiction to review 

the court’s dismissal order only if it constitutes a final order. 

Had the district court’s order simply dismissed all claims, it 

would unquestionably be a final order. Generally, an order of 

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

(2010).

18 Id.

19 § 25-1301(1). See, also, Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 

943, 880 N.W.2d 906 (2016).

20 See Cattle Nat. Bank & Trust Co. v. Watson, supra note 19.
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dismissal is a final, appealable order.21 But the district court’s 

order dismissed all claims except the Great Plains dissolution 

proceeding, which it stayed pending arbitration.

Thus, whether we have jurisdiction turns on whether the 

order staying the dissolution proceeding is a final order. If the 

stay is not a final order, then the district court’s order under 

§ 25-1315 would be one that “adjudicates fewer than all the 

claims or the rights and liabilities of fewer than all the parties” 

and would therefore not be final. If the stay is a final order, 

then the dismissal and stay order does not fall within § 25-1315 

and we have appellate jurisdiction to review it.

[10,11] An order issuing a stay within an action is generally not appealable.22 But we have held that a stay that is 

“tantamount to a dismissal of an action or has the effect of a 

permanent denial of the requested relief” is a final order.23 In 

Kremer v. Rural Community Ins. Co.,

24 we concluded that a 

court order under Nebraska’s Uniform Arbitration Act staying 

an action has the same effect as a dismissal because “[t]he parties cannot litigate their dispute in state courts.” Though the 

order at issue here is distinct from the one in Kremer, we reach 

the same conclusion.

In Kremer, the trial court, on the defendant’s motion, compelled arbitration and stayed the case. Here, the court’s order 

was issued sua sponte and did not compel arbitration, but dismissed most claims because of the arbitration provision and 

stayed the remaining claim, for dissolution of Great Plains, 

pending the result of arbitration. The order staying the dissolution proceeding was tantamount to a dismissal of that 

21 Bargmann v. State, 257 Neb. 766, 600 N.W.2d 797 (1999) (decided before 

enactment of § 25-1315); Robinson v. NABCO, Inc., 10 Neb. App. 968, 

641 N.W.2d 401 (2002); Janet K. v. Kevin B., 5 Neb. App. 169, 556 

N.W.2d 270 (1996).

22 Kremer v. Rural Community Ins. Co., supra note 17.

23 Id. at 600, 788 N.W.2d at 548.

24 Id. at 600-01, 788 N.W.2d at 548.
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claim, because it stayed that claim for an indefinite period 

of time and conditioned the lifting of the stay on the parties’ 

arbitrating their other claims. It was thus similar to the order 

in Kremer in that it put the parties out of court and effectively 

forced them to arbitrate their claims. We conclude that the 

order staying the Great Plains dissolution proceeding was a 

final order.

Because both the stay of the dissolution proceeding and the 

dismissal of all other claims were final, the order staying and 

dismissing claims disposed of all claims as to all parties within 

the meaning of § 25-1315. We have jurisdiction to review the 

district court’s order.

2. District Court’s Dismis

and Stay Or

Boyd argues that the district court erred by dismissing the 

nondissolution claims and staying the dissolution proceeding, 

while the appellees take no position on the correctness of the 

court’s order. Boyd argues that the employment contract’s arbitration provision had been waived by the parties by extensively 

litigating the claims subject to the provision and that the venue 

and jurisdiction provision did not deprive the district court of 

subject matter jurisdiction. We agree that the district court’s 

dismissal and stay order was erroneous.

[12-14] When the district court concluded that it lacked 

jurisdiction, it did not specify whether it was referring to 

personal or subject matter jurisdiction. But the court appeared 

to be referring to the latter. Subject matter jurisdiction is the 

power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question 

belong and to deal with the general subject matter involved.25

American courts long ago adopted the “‘no-waiver, noconsent’ rule” for subject matter jurisdiction from the English 

25 J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893 

(2017).
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common law.26 As we have frequently stated, parties cannot 

confer subject matter jurisdiction upon a judicial tribunal by 

either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of 

the parties.27 And a lack of subject matter jurisdiction may be 

raised at any time by any party or by the court sua sponte.28

[15] Just as parties may not confer subject matter jurisdiction on a court by consent, neither may parties deprive a court 

of subject matter jurisdiction by their own agreement.29 A 

court’s subject matter jurisdiction derives from the constitutional and statutory sources of its authority, not the agreement 

of the litigants that appear before it.30

[16] The district court erred in concluding that the arbitration and jurisdiction and venue provisions of the employment 

agreement deprived it of subject matter jurisdiction. As a 

basic principle of law, a contractual agreement can do no such 

thing.31 While some older case law inaptly referred to arbitration agreements as “oust[ing the] courts of jurisdiction,”32

such provisions are properly understood as contractual agreements between parties to resolve their disputes in an arbitral 

26 Larry L. Teply & Ralph U. Whitten, Civil Procedure 44 (5th ed. 2013) 

(emphasis omitted).

27 J.S. v. Grand Island Public Schools, supra note 25.

28 Id.

29 State, etc. v. University of Wisconsin-Madison, 96 Wis. 2d 492, 292 

N.W.2d 657 (Wis. App. 1980). See, J.S. v. Grand Island Public Schools, 

supra note 25; Shaffer v. Jeffery, 915 P.2d 910 (Okla. 1996).

30 Dial 800 v. Fesbinder, 118 Cal. App. 4th 32, 12 Cal. Rptr. 3d 711 (2004) 

(as modified). See, generally, J.S. v. Grand Island Public Schools, supra

note 25 (subject matter jurisdiction).

31 See, Dial 800 v. Fesbinder, supra note 30; State, etc. v. University of 

Wisconsin-Madison, supra note 29.

32 See, e.g., Dowd v. First Omaha Sec. Corp., 242 Neb. 347, 353, 495 

N.W.2d 36, 40 (1993). But see Park Construction Co. v. Independent 

School Dist. No. 32, 209 Minn. 182, 296 N.W. 475 (1941).
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venue.33 This court has recognized that “[a]rbitration is purely 

a matter of contract.”34 And while an arbitration provision, 

like a forum selection provision, may create an enforceable 

right to resolve disputes between the parties to the contract 

in another forum, such provisions do not bear on the subject 

matter jurisdiction of the court.35 As the Supreme Court of 

Oklahoma explained, “[t]he contractual right to compel arbitration [is] a defense to an action on the contract,” but “[t]he 

affirmative defense of an agreement to arbitrate is not the 

same thing as lack of subject matter jurisdiction.”36 An order 

compelling arbitration made pursuant to Nebraska’s Uniform 

Arbitration Act37 or the Federal Arbitration Act38 may deprive 

a court of jurisdiction to adjudicate the claims subject to 

arbitration, but it is the arbitration order and the underlying 

statute, not the arbitration agreement itself, that deprive the 

court of jurisdiction.39

And the employment contract here does not even purport to 

deprive the court of subject matter jurisdiction. The arbitration clause provides that disputes between Boyd and Midwest 

Pain are to be resolved by arbitration. And the jurisdiction 

33 See, In re Nestorovski Estate, 283 Mich. App. 177, 769 N.W.2d 720 

(2009); Catrini v. Erickson, 113 Conn. App. 195, 966 A.2d 275 (2009); 

Park Construction Co. v. Independent School Dist. No. 32, supra note 32.

34 Cornhusker Internat. Trucks v. Thomas Built Buses, 263 Neb. 10, 13, 637 

N.W.2d 876, 880 (2002).

35 Catrini v. Erickson, supra note 33. See, Big City Small World Bakery 

Cafe, LLC v. Francis David Corporation, 265 F. Supp. 3d 750 (2017); 

Grasty v. Colorado Technical University, 599 F. Appx. 596 (7th Cir. 2015) 

(memorandum opinion). See, also, Scherk v. Alberto-Culver Co., 417 U.S. 

506, 94 S. Ct. 2449, 41 L. Ed. 2d 270 (1974).

36 Shaffer v. Jeffery, supra note 29, 915 P.2d at 913.

37 Neb. Rev. Stat. §§ 25-2601 to 25-2622 (Reissue 2016).

38 9 U.S.C. §§ 1 to 16 (2012).

39 Kremer v. Rural Community Ins. Co., supra note 17. See Ruff v. Splice, 

Inc., 398 Ill. App. 3d 431, 923 N.E.2d 1250, 338 Ill. Dec. 101 (2010).
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and venue provision states that “the [c]ourt located in Union 

County, South Dakota, shall have jurisdiction and be the 

venue of all disputes between [Midwest Pain] and [Boyd], 

whether such disputes arise from this [a]greement or otherwise.” If the reference to jurisdiction in this latter provision were somehow read to refer to subject matter—rather 

than personal—jurisdiction, such a provision would have no 

legal effect.

[17-19] Finally, from the premise that a contractual arbitration provision merely creates a contractual right, it necessarily 

follows that this right may be enforced only by a party to the 

contract.40 Here, neither party sought to enforce the arbitration provision, yet the court dismissed or stayed all claims in 

the case in an attempt to push the dispute into arbitration. But 

like other contractual rights, an agreement to arbitrate can be 

waived by the parties.41 Arbitration provisions are not selfexecuting.42 It is improper for a court to try to enforce such a 

contractual right on behalf of the parties.43 We need not decide 

whether the extensive litigation that has occurred in this case 

constitutes a waiver of the arbitration agreement because neither party sought to enforce the arbitration agreement in the 

first place. Waiver of a contractual provision is a defense to 

enforcement of that provision, but a party must first seek to 

invoke the provision before it is necessary to consider the 

40 Yang v. Majestic Blue Fisheries, LLC, 876 F.3d 996 (9th Cir. 2017) (only 

party to arbitration agreement may enforce agreement).

41 Good Samaritan Coffee Co. v. LaRue Distributing, supra note 3.

42 Dial 800 v. Fesbinder, supra note 30. See, also, Good Samaritan Coffee 

Co. v. LaRue Distributing, supra note 3.

43 See Yang v. Majestic Blue Fisheries, LLC, supra note 40. Cf., Sarpy 

Cty. Farm Bureau v. Learning Community, 283 Neb. 212, 808 N.W.2d 

598 (2012) (courts should generally not decide issues not raised by 

parties); Good Samaritan Coffee Co. v. LaRue Distributing, supra note 3 

(arbitration waiver).
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affirmative defense of waiver.44 Because no party has sought to 

enforce the arbitration agreement, it was error for the district 

court to do so on its own accord.

VI. CONCLUSION

For the reasons set forth above, we reverse the stay and 

dismissal order and remand the cause for further proceedings.

 Reversed and remande

further proceedi

Wright, J., not participating

44 See, Omaha Police Union Local 101 v. City of Omaha, 292 Neb. 381, 

872 N.W.2d 765 (2015) (waiver generally); Good Samaritan Coffee Co. v. 

LaRue Distributing, supra note 3. See, also, Dial 800 v. Fesbinder, supra

note 30.