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Thomas Cullinane, as Special Administrator for the

Estate of Helen Cullinane, deceased, appellee, v. 

Beverly Enterprises - Nebraska, Inc., doing business

as Golden LivingCenter - Valhaven, appellant, and

Thomas Larson, Jr., DPM, et al., appellees.

___ N.W.2d ___

Filed June 15, 2018. No. S-17-486.

1. Arbitration and Award. Arbitrability presents a question of law.

2. ____. Whether a stay of proceedings should be granted and arbitration 

required is a question of law.

3. Judgments: Jurisdiction. A jurisdictional issue that does not involve a 

factual dispute presents a question of law.

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

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

conclusions.

5. Arbitration and Award: Appeal and Error. The standard of review as 

to the issue of arbitrability summarily tried to the court is the same as in 

a bench trial of a law action.

6. Judgments: Appeal and Error. In a bench trial of a law action, a trial 

court’s factual findings have the effect of a jury verdict and will not be 

set aside on appeal unless clearly wrong.

7. ____: ____. In reviewing a judgment awarded in a bench trial of a law 

action, an appellate court does not reweigh evidence, but considers the 

evidence in the light most favorable to the successful party and resolves 

evidentiary conflicts in favor of the successful party, who is entitled to 

every reasonable inference deducible from the evidence.

8. 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, and this is so even 

where neither party has raised the issue.

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

to acquire jurisdiction of an appeal, there must be a final order entered 

Nebraska Supreme Court Online Library

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

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by the court from which the appeal is taken; conversely, an appellate 

court is without jurisdiction to entertain appeals from nonfinal orders.

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

Error. In order to determine whether state law governs the finality for 

purposes of appeal of an order denying a motion to compel arbitration 

under the Federal Arbitration Act, courts must first apply state procedural rules to determine whether 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.

11. ____: ____: ____: ____. A direct appeal from an order denying a motion 

to compel arbitration furthers the objectives of the Federal Arbitration 

Act by permitting final resolution of the issue of arbitrability without 

having to first conclude a judicial proceeding on the merits, at which 

point the arbitral remedy would be rendered essentially meaningless.

12. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 

(Reissue 2016), the 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.

13. Arbitration and Award: Final Orders. The denial of a motion to compel arbitration is a final, appealable order because it affects a substantial 

right and is made in a special proceeding.

14. Arbitration and Award. Arbitration is a matter of contract, and a party 

cannot be required to submit to arbitration any dispute which he or she 

has not agreed so to admit.

15. Federal Acts: Arbitration and Award: Contracts. If arbitration arises 

from a contract involving interstate commerce, it is governed by the 

Federal Arbitration Act.

16. Constitutional Law: Waiver: Intent. A party has a constitutional 

right to adjudication of a justiciable dispute, and the law will not find a 

waiver of that right absent direct and explicit evidence of actual intent 

of a party’s agreement to do so.

17. Arbitration and Award. Unless the parties clearly and unmistakably 

provide otherwise, the question of whether the parties agreed to arbitrate 

is to be decided by the court, not the arbitrator.

18. Arbitration and Award: Contracts. Disputes about arbitrability for 

a court to decide include threshold questions such as whether the parties are bound by a given arbitration clause or whether an arbitration 

clause in a concededly binding contract applies to a particular type of 

controversy.
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19. Arbitration and Award: Intent. Parties can agree to arbitrate gateway 

questions of arbitrability, such as whether the parties have agreed to 

arbitrate or whether their agreement covers a particular controversy, if 

they do so with clear and unmistakable intent.

20. Arbitration and Award. A valid delegation clause requires the court to 

refer a claim to arbitration to the arbitrator to decide gateway arbitrability issues.

21. Arbitration and Award: Contracts. Enforcement of an arbitration 

agreement involves two analytical steps: The first is contract formation—whether the parties entered into any arbitration agreement at all. 

The second involves contract interpretation to determine whether this 

claim is covered by the arbitration agreement.

22. Federal Acts: Arbitration and Award: Words and Phrases. A delegation clause is an agreement to arbitrate a threshold issue and is simply 

an additional, severable, antecedent arbitration agreement the party 

seeking arbitration asks the court to enforce, and the Federal Arbitration 

Act operates on this additional arbitration agreement just as it does on 

any other.

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

Nebraska is governed by the Uniform Arbitration Act as enacted in 

Nebraska, but if arbitration arises from a contract involving interstate 

commerce, it is governed by the Federal Arbitration Act.

24. Federal Acts: Arbitration and Award. Where a transaction falls within 

the scope of the Federal Arbitration Act, the substantive issue of whether 

the motion to compel arbitration should be granted is a question of federal law.

25. ____: ____. Under 9 U.S.C. § 4 (2012) of the Federal Arbitration Act, 

the court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith 

is not in issue, the court shall make an order directing the parties to 

proceed to arbitration in accordance with the terms of the agreement. If 

the making of the arbitration agreement or the failure, neglect, or refusal 

to perform the same be in issue, the court shall proceed summarily to 

the trial thereof, if no jury trial be demanded by the party alleged to be 

in default.

26. Arbitration and Award. Under Neb. Rev. Stat. § 25-2603(a) (Reissue 

2016), on application of a party showing a valid arbitration agreement 

and the opposing party’s refusal to arbitrate, the court shall order the 

parties to proceed with arbitration, but if the opposing party denies the 

existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order for the 

moving party; otherwise, the application shall be denied.
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27. Federal Acts: Arbitration and Award. Neb. Rev. Stat. § 25-2603 

(Reissue 2016) does not defeat the Federal Arbitration Act’s objective, 

expressed in 9 U.S.C. § 4 (2012), that if the making of the arbitration 

agreement or the failure, neglect, or refusal to perform the same be in 

issue, the court shall proceed summarily to the trial thereon.

28. Appeal and Error. An appellate court will not consider an issue on 

appeal that was not passed upon by the trial court.

29. Federal Acts: Arbitration and Award: Contracts. The Federal 

Arbitration Act makes arbitration agreements valid, irrevocable, and 

enforceable, save upon such grounds as exist at law or in equity for the 

revocation of any contract.

30. Contracts: Fraud. In the absence of fraud, one who signs an instrument 

without reading it, when one can read and has had the opportunity to do 

so, cannot avoid the effect of one’s signature merely because one was 

not informed of the contents of the instrument.

31. ____: ____. The doctrine that the carelessness or negligence of a party 

in signing a writing estops him or her from afterward disputing the 

contents of such writing is not applicable in a suit thereon between the 

original parties thereto when the defense is that such writing, by reason 

of fraud, does not embrace the contract actually made.

32. ____: ____. Fraud in the execution goes to the very existence of the 

contract, such as where a contract is misread to a party or where one 

paper is surreptitiously substituted for another, or where the party is 

tricked into signing an instrument he or she did not mean to execute.

33. ____: ____. Fraud in the inducement goes to the means used to induce 

a party to enter into a contract; in such cases, the party knows the character of the instrument and intends to execute it, but the contract may be 

voidable if the party’s consent was obtained by false representations.

34. Fraud: Proof. A fraudulent misrepresentation claim requires a plaintiff 

to establish the following elements: (1) A representation was made; (2) 

the representation was false; (3) when made, the representation was 

known to be false or made recklessly without knowledge of its truth and 

as a positive assertion; (4) the representation was made with the intention that the plaintiff should rely on it; (5) the plaintiff did so rely on it; 

and (6) the plaintiff suffered damage as a result.

35. Fraud. Fraudulent misrepresentations may consist of half-truths calculated to deceive, and a representation literally true is fraudulent if used 

to create an impression substantially false.

36. ____. Whether a party’s reliance upon a misrepresentation was reasonable is a question of fact.

37. ____. A party is justified in relying upon a representation made to the 

party as a positive statement of fact when an investigation would be 

required to ascertain its falsity.
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38. Fraud: Proof: Circumstantial Evidence. In fraud case, direct evidence 

is not essential, but proof of fraud drawn from circumstantial evidence 

must not be guesswork or conjecture; such proof must be rational 

and logical deductions from facts and circumstances from which they 

are inferred.

39. Trial. Under Neb. Rev. Stat. § 25-1127 (Reissue 2016), in the absence 

of a request by a party for specific findings, a trial court is not required 

to make detailed findings of fact and need only make its findings generally for the prevailing party.

40. Trial: Judgments: Evidence: Appeal and Error. Where trial is to the 

court and no request for specific findings is made, if there is a conflict 

in the evidence, an appellate court, in reviewing the judgment rendered, 

will presume that controverted facts were decided by the trial court 

in favor of the successful party and the findings will not be disturbed 

unless clearly wrong.

41. Affidavits. An affidavit is admissible in certain enumerated situations, 

including motion practice, which includes the use of affidavits relating 

to preliminary, collateral, and interlocutory matters.

42. Judgments: Evidence: Appeal and Error. Even though an appellate 

court is, in the absence of oral testimony, equally capable as the trial 

court of examining the evidence and drawing conclusions therefrom 

and is under a duty to do so, and even though a case was submitted 

to the trial court without oral evidence, the duty of the appellate court 

to evaluate the facts does not extend to the right or duty to make an 

independent evaluation thereof without regard to the findings below. 

In such a case, an appellate court is loath to overturn the findings of 

an experienced trial judge unless in the opinion of the court they are 

clearly wrong.

43. Affidavits. Statements in affidavits as to opinion, belief, or conclusions 

of law are of no effect.

Appeal from the District Court for Douglas County: Gregory

M. Schatz, Judge. Affirmed.

Jeanelle R. Lust and Charles E. Wilbrand, of Knudsen, 

Berkheimer, Richardson & Endacott, L.L.P., for appellant.

Shayla M. Reed, of Reed Law Offices, P.C., L.L.O., for 

appellee Thomas Cullinane.

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

Funke, JJ.
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Funke, J.

Beverly Enterprises - Nebraska, Inc., doing business as 

Golden LivingCenter - Valhaven (GLCV), appeals the denial 

of its motion to dismiss or stay proceedings and compel 

arbitration. GLCV moved to enforce an agreement to arbitrate against Thomas Cullinane, as special administrator for 

the estate of his mother, Helen Cullinane; Thomas had filed 

a wrongful death action against GLCV. Thomas objected to 

GLCV’s motion, and the court ruled in his favor, finding the 

execution of the “Alternative Dispute Resolution Agreement” 

(the ADR Agreement) was not binding upon Helen or her 

estate. GLCV appealed, and for the reasons set forth below, 

we affirm.

I. BACKGROUND

Helen was a resident of GLCV, a skilled nursing facility 

located in Valley, Nebraska. She was 88 years old at the time of 

her admission in 2010 and suffered from dementia. She passed 

away on February 2, 2015. Thomas became the special administrator of Helen’s estate and filed a wrongful death action 

against GLCV on behalf of the estate.

GLCV filed a motion to dismiss or, in the alternative, 

stay proceedings and compel arbitration pursuant to § 4 of 

the Federal Arbitration Act (FAA),1 in accordance with the 

terms of a written arbitration agreement between GLCV and 

Helen. GLCV asserted that Eugene Cullinane, Helen’s husband, age 84, while acting as Helen’s attorney in fact, agreed to 

resolve disputes through arbitration when he signed the ADR 

Agreement on September 28, 2010, the date Eugene and Helen 

were admitted to the facility.

The front page of the ADR Agreement contains a title 

written in bold and capitalized letters and large font which 

states: “Alternative Dispute Resolution Agreement.” The following language, in bold and capitalized letters, appears 

1 9 U.S.C. §§ 1 to 16 (2012).
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below the title: “This agreement is not a condition of admission to or continued residence in the facility.” The ADR 

Agreement states:

The Parties agree that any disputes covered by this 

Agreement (“Covered Disputes”) that may arise between 

them shall be resolved exclusively by an ADR process 

that shall include mediation and, where mediation is 

not successful, binding arbitration. The parties to this 

Agreement acknowledge and agree that upon execution by Resident, this Agreement becomes part of the 

Admission Agreement, and that the Admission Agreement 

evidences a transaction in interstate commerce governed 

by the [FAA].

The ADR Agreement further includes the following language, in bold and capitalized letters:

The parties understand, acknowledge, and agree that 

they are selecting a method of resolving disputes without 

resorting to lawsuits or the courts, and that by entering 

into this agreement, they are giving up their constitutional 

right to have their disputes decided in a court of law by a 

judge or jury . . . .

The ADR Agreement provides: “Covered Disputes, including the determination of the scope or applicability of this 

Agreement, shall be determined by arbitration . . . .” A section in the agreement titled “Resident’s Understanding” states: 

“The Resident understands that . . . his or her signing of this 

Agreement is not a condition of admission to or residence in 

the Facility . . . .” The signature page of the document states in 

bold and capitalized letters and in large font: “This agreement 

governs important legal rights. Please read it carefully and in 

its entirety before signing.”

At the hearing on GLCV’s motion to compel arbitration, 

GLCV offered the affidavit of Trisha Weberg, the business 

manager of GLCV. The affidavit included a copy of the 

durable power of attorney signed by Helen on July 23, 2008, 

which appointed Eugene as her attorney in fact. Weberg, who 
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was not present when the ADR Agreement was executed, 

stated her personal knowledge concerning the facility’s routine procedure with respect to its resident admissions. Weberg 

stated that when she assisted in the admission process, she 

would do the following: present the ADR Agreement to the 

resident and allow the resident and the resident’s family members to read the paperwork; explain that by signing the ADR 

Agreement, the resident would waive his or her right to a 

trial and agree to submit any dispute to arbitration, but state 

that signing the ADR Agreement was not required to become 

a resident at the facility; obtain the resident’s signature; and 

sign the document on behalf of GLCV. Weberg stated it is her 

belief that the normal procedure was followed with regard 

to Helen’s admission. GLCV did not present an affidavit 

from its employee who executed the ADR Agreement on 

its behalf.

Thomas offered affidavits from himself and Eugene. 

According to Eugene’s affidavit, he and Helen sought admission to GLCV when Helen was transferred from the hospital 

on September 28, 2010. Helen was taken to a room, and a 

GLCV staff member led Eugene and Thomas into a small 

office. Eugene stated, “[W]e sat down and the female staff 

member presented me with a stack of papers which she said 

was ‘the paperwork I needed to sign to admit my wife’ and 

another stack to admit myself.” He stated, “The staff member 

handled the papers, turned the pages and told me she needed 

my signature ‘here’ and directed me where to sign.” Eugene 

conceded that he signed the ADR Agreement, but stated that he 

did so because it was his understanding that if he did not sign 

the paperwork, Helen would not have been admitted to receive 

health care. He stated he was not informed that any document in the stack of papers was optional, that the paperwork 

included an arbitration agreement, or that he was waiving his 

or his wife’s right to a jury trial. Eugene stated he would have 

not signed the ADR Agreement had he known what it meant 

and that it was not required.
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Thomas stated in his affidavit that when he and Eugene met 

with the staff member in the office, she specifically stated that 

“‘these are standard forms we need you to sign.’” Thomas 

stated she turned the stack of papers to face Eugene, flipped 

up the bottom half of the pages, and pointed to the place where 

she wanted him to sign. He stated that he was present during 

the entire meeting and that at no time did the staff member 

state any of the documents were optional or would have the 

effect of waiving legal rights.

Based on the evidence, the district court entered an order 

which found that “Eugene[’s] execution of the arbitration 

agreement cannot be binding upon Helen . . . , nor her estate, 

and that [GLCV’s] motion should be dismissed, and [GLCV] 

given two weeks to further plead to [Thomas’] Complaint.”

II. ASSIGNMENTS OF ERROR

GLCV assigns, summarized, that the district court erred in 

(1) dismissing GLCV’s motion to dismiss or stay proceedings and compel arbitration, (2) failing to compel Thomas 

to arbitration, (3) determining that Eugene’s execution of the 

ADR Agreement was not binding upon Helen or her estate, 

(4) implicitly ruling that Eugene’s signature was obtained 

by fraud, and (5) failing to support its decision with any 

legal analysis.

III. STANDARD OF REVIEW

[1-4] Arbitrability presents a question of law.2 Whether a 

stay of proceedings should be granted and arbitration required 

is also a question of law.3 Likewise, a jurisdictional issue 

that does not involve a factual dispute presents a question of 

law.4 When reviewing questions of law, an appellate court 

2 Citizens of Humanity v. Applied Underwriters, 299 Neb. 545, 909 N.W.2d 

614 (2018).

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

N.W.2d 367 (2008).

4 State v. Irish, 298 Neb. 61, 902 N.W.2d 669 (2017).
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resolves the questions independently of the lower court’s 

conclusions.5

[5] We have not yet had the opportunity to determine a 

standard of review when the issue of arbitrability is summarily tried to the court. However, we see no reason why the standard of review would be different from the standard of review 

in a bench trial of a law action.

[6,7] In a bench trial of a law action, a trial court’s factual findings have the effect of a jury verdict and will not 

be set aside on appeal unless clearly wrong.6 In reviewing a 

judgment awarded in a bench trial of a law action, an appellate court does not reweigh evidence, but considers the evidence in the light most favorable to the successful party and 

resolves evidentiary conflicts in favor of the successful party, 

who is entitled to every reasonable inference deducible from 

the evidence.7

IV. ANALYSIS

1. Jurisdiction

[8,9] 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.8 This is so even where, 

as here, neither party has raised the issue.9 For an appellate court to acquire jurisdiction of an appeal, there must be 

a final order entered by the court from which the appeal is 

taken; conversely, an appellate court is without jurisdiction to 

5 Frohberg Elec. Co. v. Grossenburg Implement, 297 Neb. 356, 900 N.W.2d 

32 (2017).

6 See Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96 (2018). See, 

also, Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 33 

(2004).

7 Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d 1 

(2008).

8 Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018).

9 Karo v. NAU Country Ins. Co., 297 Neb. 798, 901 N.W.2d 689 (2017).
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entertain appeals from nonfinal orders.10 In this case, we must 

decide whether the order denying GLCV’s motion to compel 

arbitration was a final, appealable order.

Nebraska has adopted the Uniform Arbitration Act (UAA), 

which is codified in Neb. Rev. Stat. §§ 25-2601 to 25-2622 

(Reissue 2016). Section 25-2603(a) of the UAA authorizes a 

party to a judicial proceeding to apply for an order compelling 

arbitration of the dispute. The UAA further provides that an 

appeal may be taken from an order denying such an application, pursuant to § 25-2620(a)(1).11

But GLCV did not invoke the UAA in its motion to compel 

arbitration. Instead, GLCV filed its motion to compel arbitration pursuant to the FAA. Thus, the provision of the UAA 

permitting an appeal from an order denying an application to 

compel arbitration is inapplicable to this case.

Section 4 of the FAA authorizes a U.S. district court to entertain a petition to compel arbitration if the court would have 

jurisdiction, save for the arbitration agreement, over a suit arising out of the controversy between the parties,12 while § 16 of 

the FAA governs appeals and provides in part that “[a]n appeal 

may be taken from . . . (1) an order . . . (B) denying a petition 

under section 4 of this title to order arbitration to proceed.”13

The FAA, however, does not indicate whether its provisions 

relating to appeals are applicable in state court actions, such as 

the instant matter, where a party seeks to enforce an arbitration 

clause under the FAA.

[10,11] In Webb v. American Employers Group,

14 we concluded that in order to determine whether state law governs the 

finality for purposes of appeal of an order denying a motion 

10 Gillpatrick v. Sabatka-Rine, 297 Neb. 880, 902 N.W.2d 115 (2017).

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

(2016).

12 9 U.S.C. § 4.

13 9 U.S.C. § 16.

14 Webb, supra note 6.
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to compel arbitration under the FAA, we must first apply our 

state procedural rules to determine whether 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. We determined that State procedural rules, which do 

not defeat the FAA’s objectives, govern the determination of 

whether an order denying a motion to compel arbitration is 

final for purposes of appeal.15 We found that a direct appeal 

from an order denying a motion to compel arbitration furthered 

the objectives of the FAA by permitting final resolution of the 

issue of arbitrability without having to first conclude a judicial 

proceeding on the merits, at which point the arbitral remedy 

would be rendered essentially meaningless.16

[12,13] Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), 

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 action after a 

judgment is rendered.17 Ultimately, in Webb, we held that the 

denial of a motion to compel arbitration under the FAA is a 

final, appealable order under the second of these categories, 

because it affects a substantial right and is made during a special proceeding.18

In the instant matter, the order denying GLCV’s motion to 

compel arbitration was made pursuant to a special proceeding. The order affected GLCV’s substantial rights, namely its 

legal, contractual right to the benefits of arbitration, which 

15 See id. See, also, Speece v. Allied Professionals Ins. Co., 289 Neb. 75, 853 

N.W.2d 169 (2014); Kremer v. Rural Community Ins. Co., 280 Neb. 591, 

788 N.W.2d 538 (2010).

16 Webb, supra note 6.

17 In re Interest of Dana H., 299 Neb. 197, 907 N.W.2d 730 (2018).

18 Webb, supra note 6.
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right was available to GLCV prior to the court’s order. The 

district court’s order is therefore a final, appealable order.

2. ADR Agreement

[14] The U.S. Supreme Court has held that arbitration “‘is 

a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to 

submit.’”19 Thus, we must determine whether the district court 

clearly erred when it determined that the ADR Agreement was 

not binding upon Helen or her estate. In order to make that 

determination, we must consider whether the ADR Agreement 

comes within the scope of the FAA, whether the trial court 

had the authority to decide the enforceability of the ADR 

Agreement, and whether the trial court used the correct procedure to decide the arbitrability of the agreement.

(a) ADR Agreement Within 

Scope of FAA

[15] It is well settled that if arbitration arises from a contract involving interstate commerce, it is governed by the 

FAA.20 “Commerce” as defined by the FAA includes “commerce among the several States.”21 The U.S. Supreme Court 

has held that the phrase “‘“involving commerce”’” requires a 

broad interpretation in order to give effect to the FAA’s basic 

purpose, which is to put arbitration provisions on the same 

footing as a contract’s other terms.22

19 AT&T Technologies v. Communications Workers, 475 U.S. 643, 648, 106 

S. Ct. 1415, 89 L. Ed. 2d 648 (1986). See, also, Zweiback Family L.P. 

v. Lincoln Benefit Life Co., 299 Neb. 180, 907 N.W.2d 700 (2018), and 

Kelley v. Benchmark Homes, Inc., 250 Neb. 367, 550 N.W.2d 640 (1996), 

disapproved on other grounds, Webb, supra note 6.

20 Karo, supra note 9; Aramark Uniform & Career Apparel v. Hunan, Inc., 

276 Neb. 700, 757 N.W.2d 205 (2008).

21 9 U.S.C § 1.

22 Webb, supra note 6, 268 Neb. at 478, 684 N.W.2d at 39 (citing AlliedBruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 

2d 753 (1995)).
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In the instant matter, GLCV brought the motion to compel under § 4 of the FAA. In addition, Thomas’ complaint 

alleges that Helen was a resident of Nebraska and that Beverly 

Enterprises - Nebraska, Inc., doing business as GLCV, was a 

California corporation; the ADR Agreement specifically states 

that the admission agreement evidences a transaction involving interstate commerce; and neither party contends that the 

FAA is not the applicable statutory authority. As a result, we 

conclude that this case involves a transaction within the scope 

of the FAA.

(b) Court Decides Enforceability 

of ADR Agreement

[16-18] A party has a constitutional right to adjudication of 

a justiciable dispute, and the law will not find a waiver of that 

right absent direct and explicit evidence of actual intent of a 

party’s agreement to do so.23 “Unless the parties clearly and 

unmistakably provide otherwise, the question of whether the 

parties agreed to arbitrate is to be decided by the court, not the 

arbitrator.”24 This rule creates a rebuttable presumption that 

the issue of arbitrability—whether the parties have agreed to 

subject a dispute to arbitration—is an issue for judicial determination.25 Disputes about arbitrability for a court to decide 

include threshold questions such as whether the parties are 

bound by a given arbitration clause or whether an arbitration 

clause in a concededly binding contract applies to a particular 

23 Smith Barney, Inc. v. Painters Local Union No. 109, 254 Neb. 758, 579 

N.W.2d 518 (1998); Tracy Broadcasting Corp. v. Telemetrix, Inc., 17 Neb. 

App. 112, 756 N.W.2d 742 (2008).

24 AT&T Technologies, supra note 19, 475 U.S. at 649.

25 Id. See, BG Group PLC v. Republic of Argentina, ___ U.S. ___, 134 S. Ct. 

1198, 188 L. Ed. 2d 220 (2014); Oxford Health Plans LLC v. Sutter, ___ 

U.S. ___, 133 S. Ct. 2064, 186 L. Ed. 2d 113 (2013); Howsam v. Dean 

Witter Reynolds, Inc., 537 U.S. 79, 123 S. Ct. 588, 154 L. Ed. 2d 491 

(2002); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S. Ct. 

1920, 131 L. Ed. 2d 985 (1995).
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type of controversy.26 Disputes over “formation of the parties’ arbitration agreement” and “its enforceability or applicability to the dispute” at issue are “matters . . . ‘the court’ 

must resolve.”27

[19,20] Conversely, parties can agree to arbitrate gateway 

questions of arbitrability, such as whether the parties have 

agreed to arbitrate or whether their agreement covers a particular controversy, if they do so with “clear and unmistakable” 

intent.28 A contractual provision that delegates to the arbitrator all questions regarding the scope or enforceability of an 

arbitration provision is referred to as a “delegation clause.”29

A valid delegation clause requires the court to refer a claim 

to arbitration to the arbitrator to decide gateway arbitrability issues.30

[21,22] Enforcement of an arbitration agreement involves 

two analytical steps: The first is contract formation—whether 

the parties entered into any arbitration agreement at all. The 

second involves contract interpretation to determine whether 

this claim is covered by the arbitration agreement.31 Thus, if 

the party seeking arbitration points to a purported delegation 

clause, the court’s analysis is limited. It performs the first 

step—an analysis of whether there is an agreement to arbitrate 

any set of claims—as it always does.32 But the only question, 

after finding that there is in fact a valid agreement, is whether 

the purported delegation clause is in fact a delegation clause—

that is, if it evinces an intent to have the arbitrator decide 

26 BG Group PLC, supra note 25.

27 Granite Rock Co. v. Teamsters, 561 U.S. 287, 299-300, 130 S. Ct. 2847, 

177 L. Ed. 2d 567 (2010).

28 Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 69 n.1, 130 S. Ct. 2772, 

177 L. Ed. 2d 403 (2010).

29 See, id.; Citizens of Humanity, supra note 2.

30 See id.

31 Kubala v. Supreme Production Services, Inc., 830 F.3d 199 (5th Cir. 2016).

32 Id.
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whether a given claim must be arbitrated.33 A delegation clause 

is an agreement to arbitrate a threshold issue and is simply 

an additional, severable, antecedent arbitration agreement the 

party seeking arbitration asks the court to enforce, and the FAA 

operates on this additional arbitration agreement just as it does 

on any other.34

In the instant matter, we note the plain language of the ADR 

Agreement does not clearly and unmistakably empower an 

arbitrator to determine enforceability issues such as the challenge Thomas raises here. In addition, GLCV did not argue to 

the trial court, nor does it argue to this court, that the parties 

agreed to allow an arbitrator to decide issues of arbitrability. 

Further, Thomas specifically challenged the validity of the 

agreement to arbitrate based upon fraud. Accordingly, if the 

claim is fraud in the inducement or fraud in the execution of 

the arbitration clause itself—an issue which goes to the making of the agreement to arbitrate—the court may proceed to 

adjudicate it.35

Thus, Thomas’ enforceability challenge to the ADR 

Agreement is a matter for judicial determination.

(c) Motion to Compel 

Arbitration Proceedings

The parties put forth different understandings about the 

procedure the trial court followed when it ruled on GLCV’s 

motion to compel arbitration. Thomas claims the court denied 

arbitration using a motion for summary judgment standard 

of viewing the evidence in the light most favorable to the 

33 Id.

34 Citizens of Humanity, supra note 2.

35 Prima Paint v. Flood & Conklin, 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 

2d 1270 (1967). See, also, Burden v. Check Into Cash of Kentucky, LLC, 

267 F.3d 483 (6th Cir. 2001); Ferro Corp. v. Garrison Industries, Inc., 142 

F.3d 926 (6th Cir. 1998); R.M. Perez & Associates, Inc. v. Welch, 960 F.2d 

534 (5th Cir. 1992); Matterhorn, Inc. v. NCR Corp., 763 F.2d 866 (7th Cir. 

1985).
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nonmoving party. Thomas further claims he is entitled to a jury 

trial on the issue of the formation of the ADR Agreement. To 

support his contentions, Thomas relies on 9 U.S.C. § 4.36

GLCV contends that neither of Thomas’ claims is correct. 

First, it contends that the district court’s order did not reference 

the motion for summary judgment standard. Second, it contends that since the court summarily denied the application to 

compel arbitration, the issue is fully decided and no jury trial 

would be warranted.

[23,24] Arbitration in Nebraska is governed by the UAA as 

enacted in Nebraska, but if arbitration arises from a contract 

involving interstate commerce, it is governed by the FAA.37

Where a transaction falls within the scope of the FAA, the 

substantive issue of whether the motion to compel arbitration 

should be granted is a question of federal law.38 However, 

the U.S. Supreme Court has never held that § 4 of the FAA, 

which is a procedural section, applies to state courts.39 There 

is no federal policy favoring arbitration under a certain set of 

procedural rules, and the federal policy is simply to ensure the 

enforceability of private agreements to arbitrate.40

[25] Section 4 of the FAA authorizes an aggrieved party to 

seek an order directing arbitration to proceed in the manner 

provided for in the parties’ agreement.41 The court shall hear 

36 See, BOSC, Inc. v. Bd. of Cnty. Com’rs Bernalillo Cnty, 853 F.3d 1165 

(10th Cir. 2017); Nebraska Machinery Co. v. Cargotec Solutions, LLC, 

762 F.3d 737 (8th Cir. 2014); Howard v. Ferrellgas Partners, L.P., 748 

F.3d 975 (10th Cir. 2014); John M. Gradwohl, Arbitration: Interface of the 

Federal Arbitration Act and Nebraska State Law, 43 Creighton L. Rev. 97 

(2009).

37 Aramark Uniform & Career Apparel, supra note 20.

38 Webb, supra note 6.

39 Vaden v. Discover Bank, 556 U.S. 49, 129 S. Ct. 1262, 173 L. Ed. 2d 206 

(2009); Volt Info. Sciences v. Leland Stanford Jr. U., 489 U.S. 468, 109 S. 

Ct. 1248, 103 L. Ed. 2d 488 (1989); Kremer, supra note 15.

40 Kremer, supra note 15.

41 9 U.S.C. § 4.
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the parties, and upon being satisfied that the making of the 

agreement for arbitration or the failure to comply therewith is 

not in issue, the court shall make an order directing the parties 

to proceed to arbitration in accordance with the terms of the 

agreement.42 If the making of the arbitration agreement or the 

failure, neglect, or refusal to perform the same be in issue, the 

court shall proceed summarily to the trial thereof, if no jury 

trial be demanded by the party alleged to be in default.43

[26] Under § 25-2603(a) of the UAA, on application of a 

party showing a valid arbitration agreement and the opposing 

party’s refusal to arbitrate, the court shall order the parties to 

proceed with arbitration, but if the opposing party denies the 

existence of the agreement to arbitrate, the court shall proceed 

summarily to the determination of the issue so raised and shall 

order for the moving party; otherwise, the application shall 

be denied.

[27] Section 25-2603 does not defeat the FAA’s objective, 

expressed in § 4, that if the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be 

in issue, the court shall proceed summarily to the trial thereon. 

Further, nothing in our record indicates that Thomas requested 

a jury trial on the enforceability of the ADR Agreement, 

and as a result, the trial court summarily tried the issue of 

arbitrability.

[28] On appeal, Thomas did not object to the procedure 

followed by the district court, and he did not cross-appeal 

or assign error to the fact that the district court did not order 

a jury trial on the issue. Because an appellate court will not 

consider an issue on appeal that was not passed upon by the 

trial court,44 we do not address Thomas’ contention that he is 

entitled to a jury trial on the issue of enforceability.

42 Id.

43 Id.

44 Thorson v. Nebraska Dept. of Health & Human Servs., 274 Neb. 322, 740 

N.W.2d 27 (2007).
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(d) Enforceability of 

ADR Agreement

[29] The FAA makes arbitration agreements “‘valid, irrevocable, and enforceable, save upon such grounds as exist at law 

or in equity for the revocation of any contract.’”45 Under § 2 

of the FAA, arbitration agreements can be declared unenforceable “‘upon such grounds as exist at law or in equity for the 

revocation of any contract,’”46 including contract defenses like 

fraud or unconscionability.47 State law governs the formation of 

contracts, as well as the validity, revocability, and enforceability 

of contracts generally.48 The U.S. Supreme Court has declared 

that state contract law applies to contracts with arbitration agreements governed by the FAA.49

In this matter, neither party disputed that Eugene signed the 

ADR Agreement and that he had authority to bind Helen and 

her estate under the durable power of attorney. Instead, Thomas 

argues that the ADR Agreement was not enforceable, because 

it was obtained by fraud.

In overruling GLCV’s motion to compel arbitration, the 

court did not explicitly state that Eugene signed the ADR 

Agreement as a consequence of a fraudulent misrepresentation made by GLCV’s agent. However, a logical reading of 

the court’s order is that it implicitly determined that the ADR 

Agreement is void or should be voided due to fraud.

GLCV claims that if the court denied the motion on a fraud 

theory advanced by Thomas, a proper fraud analysis would 

45 Kindred Nursing Centers L.P. v. Clark, ___ U.S. ___, 137 S. Ct. 1421, 

1426, 197 L. Ed. 2d 806 (2017) (quoting 9 U.S.C. § 2).

46 AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S. Ct. 1740, 179 

L. Ed. 2d 742 (2011).

47 Id. See, also, Prima Paint, supra note 35.

48 Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S. Ct. 1652, 134 

L. Ed. 2d 902 (1996); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 

938, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995). See Koricic v. Beverly 

Enters. - Neb., 278 Neb. 713, 773 N.W.2d 145 (2009).

49 Aramark Uniform & Career Apparel, supra note 20.
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have analyzed the six elements of fraud.50 Accordingly, GLCV 

argues that no representation was made, any representation 

made was not false, any false representation made was not 

known to be false, and there was no fraudulent intent, nor 

was there any reasonable reliance. GLCV asserts there was 

no fraud in the execution, nor was there any fraud in the 

inducement.

[30] Generally, in the absence of fraud, one who signs an 

instrument without reading it, when one can read and has had 

the opportunity to do so, cannot avoid the effect of one’s signature merely because one was not informed of the contents 

of the instrument.51

“[C]ourts will not permit a party to avoid a contract into 

which that party has entered on the grounds that he or she 

did not attend to its terms, that he or she did not read the 

document which was signed and supposed it was different from its terms, or that it was a mere form.”52

To permit a party to admit that he or she signed an instrument 

but did not read it or know its provisions would absolutely 

destroy the value of contracts.53

[31] However, the rule that one who fails to read a contract cannot avoid the effect of signing it applies only in the 

50 See deNourie & Yost Homes v. Frost, 289 Neb. 136, 854 N.W.2d 298 

(2014).

51 In re Claims Against Pierce Elevator, 291 Neb. 798, 868 N.W.2d 781 

(2015); Eicher v. Mid America Fin. Invest. Corp., 270 Neb. 370, 702 

N.W.2d 792 (2005); Ray Tucker & Sons v. GTE Directories Sales Corp., 

253 Neb. 458, 571 N.W.2d 64 (1997); Todd Brothers v. Federal Crop Ins. 

Corp., 178 Neb. 211, 132 N.W.2d 778 (1965); Case Co. v. Hrubesky, 125 

Neb. 588, 251 N.W. 169 (1933).

52 In re Claims Against Pierce Elevator, supra note 51, 291 Neb. at 826, 868 

N.W.2d at 802 (quoting In re Claims Against Atlanta Elev., Inc., 268 Neb. 

598, 685 N.W.2d 477 (2004) (superseded by statute as stated in Telrite 

Corp. v. Nebraska Pub. Serv. Comm., 288 Neb. 866, 852 N.W.2d 910 

(2014)).

53 Todd Brothers, supra note 51.
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absence of fraud54 or an inability to read.55 The doctrine that 

the carelessness or negligence of a party in signing a writing 

estops him or her from afterward disputing the contents of 

such writing is not applicable in a suit thereon between the 

original parties thereto when the defense is that such writing, by reason of fraud, does not embrace the contract actually made.56

[32,33] A variety of different types of fraud may be at issue 

in a given case. We have emphasized, for example, that “fraud 

in the execution” and “fraud in the inducement” are distinct 

theories of fraud.

Fraud in the execution goes to the very existence of the 

contract, such as where a [contract] is misread to the 

[party], or where one paper is surreptitiously substituted 

for another, or where a party is tricked into signing an 

instrument he or she did not mean to execute. In such 

cases, . . . there was no meeting of the minds, . . . in 

other words, it is not a question of a contract voidable for 

fraud, but of no contract at all. Fraud in the inducement, 

by contrast, goes to the means used to induce a party to 

enter into a contract. In such cases, the party knows the 

character of the instrument and intends to execute it, but 

the contract may be voidable if the party’s consent was 

obtained by false representations—for instance, as to 

the nature and value of the consideration, or other material matters.57

54 Walters v. Sporer, 298 Neb. 536, 905 N.W.2d 70 (2017); Eicher, supra

note 7; Todd Brothers, supra note 51.

55 Gonzalez v. Union Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 424 (2011); 

NJI2d Civ. 15.21.

56 Eicher, supra note 7; Lippire v. Eckel, 178 Neb. 643, 134 N.W.2d 802 

(1965); West v. Wegner, 172 Neb. 692, 111 N.W.2d 449 (1961); Ward v. 

Spelts, 39 Neb. 809, 58 N.W. 426 (1894).

57 Gonzalez, supra note 55, 282 Neb. at 66, 803 N.W.2d at 442. Accord 

Heritage Bank v. Bruha, 283 Neb. 263, 812 N.W.2d 260 (2012).
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[34] In this matter, Thomas contends that Eugene was 

induced into executing the ADR Agreement by GLCV’s 

fraudulent misrepresentation. A fraudulent misrepresentation 

claim requires a plaintiff to establish the following elements: 

(1) A representation was made; (2) the representation was 

false; (3) when made, the representation was known to be 

false or made recklessly without knowledge of its truth and 

as a positive assertion; (4) the representation was made with 

the intention that the plaintiff should rely on it; (5) the plaintiff did so rely on it; and (6) the plaintiff suffered damage as 

a result.58

[35-37] Fraudulent misrepresentations may consist of halftruths calculated to deceive, and a representation literally true 

is fraudulent if used to create an impression substantially 

false.59 A plaintiff must show that the defendant intended the 

plaintiff to rely on a false representation.60 Whether a party’s 

reliance upon a misrepresentation was reasonable is a question of fact.61 A party is justified in relying upon a representation made to the party as a positive statement of fact when 

an investigation would be required to ascertain its falsity.62

A plaintiff fails to exercise ordinary prudence only when the 

plaintiff’s reliance is wholly unreasonable, given the facts 

open to the plaintiff’s observation and his or her own skill 

and experience.63

58 deNourie & Yost Homes, supra note 50; Zawaideh v. Nebraska Dept. of 

Health & Human Servs., 285 Neb. 48, 825 N.W.2d 204 (2013); Cao v.

Nguyen, 258 Neb. 1027, 607 N.W.2d 528 (2000). See Hayes v. Equine 

Equities, 239 Neb. 964, 480 N.W.2d 178 (1992).

59 Knights of Columbus Council 3152 v. KFS BD, Inc., 280 Neb. 904, 791 

N.W.2d 317 (2010).

60 Id.

61 InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012); 

Cao, supra note 58.

62 InterCall, Inc., supra note 61; Schuelke v. Wilson, 250 Neb. 334, 549 

N.W.2d 176 (1996); Hayes, supra note 58.

63 deNourie & Yost Homes, supra note 50.
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[38] In a fraud case, direct evidence is not essential, but 

proof of fraud drawn from circumstantial evidence must not be 

guesswork or conjecture; such proof must be rational and logical deductions from the facts and circumstances from which 

they are inferred.64

We now turn to whether the district court’s decision to deny 

GLCV’s motion was clearly wrong.

[39,40] Under Neb. Rev. Stat. § 25-1127 (Reissue 2016), 

in the absence of a request by a party for specific findings, 

a trial court is not required to make detailed findings of 

fact and need only make its findings generally for the prevailing party.65 In a case tried to the court without a jury, a 

motion for specific findings of fact pursuant to § 25-1127 

must be made before the final submission of the case to the 

court.66 Where trial is to the court and no request for specific findings is made, if there is a conflict in the evidence, 

this court, in reviewing the judgment rendered, will presume 

that controverted facts were decided by the trial court in 

favor of the successful party and the findings will not be disturbed unless clearly wrong.

67 In such a case, it is not within 

the province of this court to resolve conflicts or to weigh 

evidence.68

In the instant matter, the record does not reflect that either 

party made a request for detailed findings. The trial court, 

however, did address the issue raised by GLCV’s motion and 

made findings generally in Thomas’ favor.

64 Four R Cattle Co. v. Mullins, 253 Neb. 133, 570 N.W.2d 813 (1997); 

Schuelke, supra note 62.

65 See Lange Indus. v. Hallam Grain Co., 244 Neb. 465, 507 N.W.2d 465 

(1993).

66 Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122 (1991).

67 Burgess v. Curly Olney’s, Inc., 198 Neb. 153, 251 N.W.2d 888 (1977); C. 

Goodrich, Inc. v. Thies, 14 Neb. App. 170, 705 N.W.2d 451 (2005).

68 Bailey v. Karnopp, 170 Neb. 836, 104 N.W.2d 417 (1960).
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We note that the evidence before the district court consisted 

of affidavits from Weberg, Eugene, and Thomas, as well the 

ADR Agreement and Helen’s durable power of attorney.

[41] We recently set forth that “under Neb. Rev. Stat. 

§ 25-1244 (Reissue 2016), an affidavit is admissible in 

certain enumerated situations, including ‘motion practice,’ 

which includes the use of affidavits relating to preliminary, collateral, and interlocutory matters.”69 The Nebraska 

Legislature has authorized the use of affidavits to support 

a wide range of common civil motions.70 Congress has provided that unless otherwise expressly provided, any application to the court brought under the FAA shall be made and 

heard in the manner provided by law for the making and 

hearing of motions.71 The policy underlying § 6 of the FAA 

“is to expedite by ordinary motion practice judicial treatment 

of matters pertaining to arbitration.”72 For example, over 40 

years ago in Prima Paint v. Flood & Conklin,

73 in reviewing 

a claim of fraud in the inducement of an arbitration contract, 

the U.S. Supreme Court considered affidavit evidence to 

decide the issue of whether the contract was a transaction in 

interstate commerce.

[42] Although we are less deferential to a trial court’s findings given that the case was presented wholly on documents 

and affidavit statements rather than through live witnesses, 

that does not alter our standard of review in this case.74 Rather, 

GLCV’s burden of proving that the district court’s findings 

69 TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 283, 

908 N.W.2d 60, 66 (2018).

70 See Neb. Rev. Stat. §§ 25-1144, 25-1330 to 25-1336, 25-2160, and 

25-2301.01 (Reissue 2016 & Supp. 2017).

71 9 U.S.C. § 6. 72 Tepper Realty Company v. Mosaic Tile Company, 259 F. Supp. 688, 693 

(S.D.N.Y. 1966).

73 Prima Paint, supra note 35.

74 See Matter of Bohart, 743 F.2d 313 (5th Cir. 1984).
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were clearly wrong is “‘“‘to some extent ameliorated.’”’”75

Even though an appellate court is, in the absence of oral testimony, equally capable as the trial court of examining the evidence and drawing conclusions therefrom and is under a duty to 

do so, and even though a case was submitted to the trial court 

without oral evidence, the duty of the appellate court to evaluate the facts does not extend to the right or duty to make an 

independent evaluation thereof without regard to the findings 

below. In such a case, an appellate court is loath to overturn the 

findings of an experienced trial judge unless in the opinion of 

the court they are clearly wrong.76

[43] Thomas adduced evidence that an agent of GLCV made 

a representation to Eugene that he was required to sign the 

ADR Agreement in order for Helen to become a resident of 

the facility. Though Weberg’s affidavit stated her belief that 

this representation was not made, she was not present when 

the ADR Agreement was signed, and the trial court appears to 

have given little or no weight to her submission. Further, statements in affidavits as to opinion, belief, or conclusions of law 

are of no effect.77

If the representation was made, the evidence indicates 

that the representation was false. The language of the ADR 

Agreement states that execution of the ADR Agreement was 

not a condition for admission.

There is also evidence that the representation was known 

to be false when it was made, or was made recklessly. The 

disclaimer at the top of the first page of the ADR Agreement, 

written in bold and capitalized letters, suggests that anyone 

who had an opportunity to read and sign the agreement, 

including a GLCV staff member, would have known that it 

was optional.

75 Id. at 325 n.12.

76 Commercial Standard Ins. Co. v. Universal Underwriters, 282 F.2d 24 

(10th Cir. 1960).

77 See Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999).
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There is also evidence that the false representation was 

made with the intention that Thomas should rely upon it. Both 

Eugene and Thomas claimed they were not given an opportunity to review the contract. Eugene stated the staff member 

handled the paperwork, flipped through the pages, and told 

him to sign “‘here.’” Thomas stated the staff member showed 

Eugene only the bottom half of the pages. This conclusion is 

supported by the ADR Agreement itself, because everything 

other than Eugene’s signature appears to have been filled out 

in advance.

The evidence also indicates that Eugene reasonably relied 

upon the false representation. Both Eugene and Thomas 

stated that the staff member claimed these were “‘standard 

forms,’” that she did not provide them with a copy of the 

ADR Agreement, that she did not explain its legal effect, and 

that she did not state that it was not required in order to admit 

Eugene and Helen. Additionally, Eugene stated that he would 

not have signed the ADR Agreement if he had known it was 

not mandatory.

Lastly, the evidence shows that Helen suffered damage as a 

result of the false representation. If GLCV’s motion to compel 

arbitration would be sustained, Thomas, on behalf of Helen’s 

estate, would lose the right to bring suit for her alleged wrongful death.

Recognizing that direct evidence is not required in fraud 

cases, and viewing the evidence in the light most favorable 

to Thomas, we find Thomas satisfied each element required 

for a claim of fraudulent representation and the determination 

that the ADR Agreement is not binding upon Helen. We conclude from our review that the evidence supports the outcome 

reached by the district court.

V. CONCLUSION

In the absence of a contractual provision evidencing clear 

and unmistakable intent to the contrary, the issue of whether 
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an arbitration agreement is enforceable is for a court to decide 

and not an arbitrator. The district court did not err in determining that the ADR Agreement was not binding upon Helen or 

her estate. We therefore affirm the district court’s decision.

Affirmed.

Wright and Kelch, JJ., not participating.