Nebraska Advance Sheets
WILCZEWSKI v. CHARTER WEST NAT. BANK 721
Cite as 290 Neb. 721
Michael J. Wilczewski and Michelle A. Wilczewski,
appellees, v. Charter West National Bank,
a national banking association, appellant.
___ N.W.2d ___
Filed April 17, 2015. No. S-14-693.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual
dispute presents a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusions.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, an appellate court must determine whether it has jurisdiction.
4. Jurisdiction: Final Orders: Appeal and Error. An appellate court lacks juris-
diction to entertain appeals from nonfinal orders.
Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Appeal dismissed.
Jeffrey A. Silver for appellant.
John D. Stalnaker, Robert J. Becker, and Ashley A. Dreyer,
of Stalnaker, Becker & Buresh, P.C., for appellees.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
Michael J. Wilczewski and Michelle A. Wilczewski filed
a civil action for damages in the district court for Douglas
County, alleging that Charter West National Bank (Charter
West) misrepresented certain facts pertaining to a real estate
transaction. Charter West filed a motion to compel arbitration,
which the district court denied without prejudice. Charter West
appeals from that order. Because we conclude that no final,
appealable order has been entered by the district court, we dis-
miss the appeal.
BACKGROUND
In their complaint, the Wilczewskis allege that they are
residents of Douglas County, Nebraska, and that Charter West
is a national banking association doing business in Douglas
County. The parties’ dispute involves real property, located
Nebraska Advance Sheets
722 290 NEBRASKA REPORTS
in Douglas County, which the Wilczewskis purchased from
Charter West in 2010. The Wilczewskis allege that Charter
West represented that the property would be conveyed free and
clear of all liens, but knew that another financial institution had
a lien on the property. The Wilczewskis allege Charter West
then “manipulated” the language of the deed to reflect that the
conveyance was subject to liens of record. They sought dam-
ages based upon alternative theories of fraudulent misrepre-
sentation, negligent misrepresentation, common-law fraud, and
quantum meruit or unjust enrichment.
Charter West filed a motion to compel arbitration pursuant to
the real estate purchase agreement, which provided: “Any con-
troversy or claim between the parties to this Nebraska Purchase
Agreement, its interpretation, enforcement or breach, including
but not limited to claims arising from tort, shall be settled by
binding arbitration . . . .” The Wilczewskis filed an objection
asserting that the arbitration clause was void because (1) it
failed to comply with Nebraska’s enactment of the Uniform
Arbitration Act (UAA)1 and (2) the Federal Arbitration Act
(FAA)2 was inapplicable because the transaction in question
did not involve interstate commerce.
The district court denied the motion to compel arbitration
without prejudice. The court noted that Charter West con-
tended the dispute was arbitrable under the FAA, which pre-
empted the UAA. Apparently, from the face of the complaint,
it further noted that Charter West was a national banking asso-
ciation doing business in Nebraska and that the transaction in
question occurred in Nebraska. On the issue of whether the
transaction affected interstate commerce so as to trigger the
provisions of the FAA, the district court recognized precedent
from this and other courts holding that a broad range of com-
mercial transactions fall within the scope of the FAA. It then
stated that
[although] one could naturally assume that the transac-
tions of Charter West (even intrastate), affect interstate
1
Neb. Rev. Stat. §§ 25-2601 to 25-2622 (Reissue 2008 & Cum. Supp.
2014).
2
9 U.S.C. § 1 et seq. (2012).
Nebraska Advance Sheets
WILCZEWSKI v. CHARTER WEST NAT. BANK 723
Cite as 290 Neb. 721
commerce, I have no evidence before me to that effect.
All I have are statements in the defendant’s brief that,
“The acceptance of the purchase agreement was done via
the internet, the defendant is a National Bank, funds were
wired through the banking system.”
(Emphasis supplied.) The court specifically stated that it was
not deciding whether the arbitration clause in the purchase
agreement complied with the UAA or whether Charter West
made a timely demand for arbitration. It denied the motion to
compel arbitration “without prejudice.”
Charter West perfected a timely appeal, and we granted its
petition to bypass.
ASSIGNMENTS OF ERROR
Charter West assigns that the district court erred in (1) fail-
ing to compel arbitration under the FAA and/or the UAA and
(2) deciding the arbitration issue without conducting an eviden-
tiary hearing.
STANDARD OF REVIEW
[1,2] A jurisdictional issue that does not involve a factual
dispute presents a question of law.3 When reviewing questions
of law, we resolve the questions independently of the lower
court’s conclusions.4
ANALYSIS
[3,4] Before reaching the legal issues presented for review,
an appellate court must determine whether it has jurisdiction.5
That is so even where, as here, no party has raised the issue.6
3
Kremer v. Rural Community Ins. Co., 280 Neb. 591, 788 N.W.2d 538
(2010); Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782
N.W.2d 848 (2010), disapproved on other grounds, Hossaini v. Vaelizadeh,
283 Neb. 369, 808 N.W.2d 867 (2012).
4
See id.
5
In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011); Cargill
Meat Solutions v. Colfax Cty. Bd. of Equal., 281 Neb. 93, 798 N.W.2d 823
(2011).
6
See, Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009);
Kilgore v. Nebraska Dept. of Health & Human Servs., 277 Neb. 456, 763
N.W.2d 77 (2009).
Nebraska Advance Sheets
724 290 NEBRASKA REPORTS
An appellate court lacks jurisdiction to entertain appeals from
nonfinal orders.7 In this case, we must decide whether the order
denying Charter West’s motion to compel arbitration without
prejudice was a final, appealable order.
The UAA authorizes a party to a judicial proceeding to
apply for an order compelling arbitration of the dispute,8 and
further provides that an appeal may be taken from an order
denying such an application.9 But Charter West did not invoke
the UAA in its motion to compel arbitration, and the district
court specifically stated that it was not deciding issues of arbi-
trability under the UAA. During oral argument, Charter West’s
counsel conceded that arbitration could not be compelled under
the UAA and that Charter West was relying solely upon 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.
We thus consider whether the order is appealable under Neb.
Rev. Stat. § 25-1902 (Reissue 2008), which provides that an
order is final for purposes of appeal if it affects a substantial
right and (1) determines the action and prevents a judgment,
(2) is made during a special proceeding, or (3) is made on
summary application in an action after judgment is rendered.10
In Webb v. American Employers Group,11 we held that an order
denying 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. In reaching this conclusion, we reasoned
that such an order affected the moving party’s substantial
right by preventing it from enjoying the contractual benefit
7
Smeal Fire Apparatus Co. v. Kreikemeier, supra note 3; Connelly v. City of
Omaha, supra note 6.
8
§ 25-2603.
9
§ 25-2620(a)(1).
10
Schropp Indus. v. Washington Cty. Atty.’s Ofc., 281 Neb. 152, 794 N.W.2d
685 (2011); Blue Cross and Blue Shield v. Dailey, 268 Neb. 733, 687
N.W.2d 689 (2004).
11
Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 33
(2004).
Nebraska Advance Sheets
WILCZEWSKI v. CHARTER WEST NAT. BANK 725
Cite as 290 Neb. 721
of arbitrating the dispute between the parties as an alternative
to litigation.
Subsequently, in Kremer v. Rural Community Ins. Co.,12 we
employed the same reasoning in concluding that an order com-
pelling arbitration under the FAA and staying judicial proceed-
ings was a final, appealable order. We concluded that
[j]ust as an order refusing to compel arbitration dimin-
ishes a party’s claim that it is entitled to arbitrate, so
does an order compelling arbitration diminish a party’s
claim that it is entitled to litigate in court. These claims
cannot be effectively vindicated after the party has been
compelled to do that which it claims it is not required
to do.13
Where enforcement of an arbitration clause is sought pur-
suant to the FAA, the initial question is whether the contract
in which the arbitration clause is contained “‘evidenc[es] a
transaction involving commerce’” as defined by the FAA.14
Unlike the orders we considered in Webb and Kremer, the
order we are asked to review in this case did not decide that
crucial issue. The district court specifically noted that while it
was possible that the transaction affected interstate commerce,
it had no evidence upon which it could make that determina-
tion. We understand this as a statement by the district court
that it could not resolve the arbitration issue solely on the basis
of the pleadings and would not regard arguments of counsel
as evidence.
The inconclusive nature of the order is reinforced by the
fact that it dismissed the motion to compel arbitration “without
prejudice.” Generally, that phrase means “[w]ithout loss of any
rights; in a way that does not harm or cancel the legal rights
or privileges of a party . . . .”15 Simply put, the order makes no
determination, one way or another, as to whether the arbitra-
tion clause is enforceable under the FAA. Because the order
12
Kremer v. Rural Community Ins. Co., supra note 3.
13
Id. at 601-02, 788 N.W.2d at 549 (citations omitted).
14
Aramark Uniform & Career Apparel v. Hunan, Inc., 276 Neb. 700, 704,
757 N.W.2d 205, 209 (2008), quoting 9 U.S.C. § 2.
15
Black’s Law Dictionary 1837 (10th ed. 2014).
Nebraska Advance Sheets
726 290 NEBRASKA REPORTS
does not resolve that issue, it does not affect a substantial
right of Charter West and therefore is not a final order under
§ 25-1902.
We note that it may have been more expedient for the dis-
trict court to conduct an evidentiary hearing and defer any
ruling on the motion to compel arbitration until the parties
had an opportunity to present evidence on the issue of whether
the real estate transaction involved interstate commerce. But
the dismissal of the motion to compel arbitration without
prejudice achieved essentially the same result, which was to
defer a final determination of the arbitrability of the dispute.
On this record, that determination has not yet been made, and
therefore, there is no final, appealable order capable of appel-
late review.
CONCLUSION
For the foregoing reasons, we conclude that we lack juris-
diction to review the order from which this appeal was taken,
and we dismiss the appeal.
Appeal dismissed.
Cargill Meat Solutions Corporation,
appellee, v. Colfax County Board
of E qualization, appellant.
___ N.W.2d ___
Filed April 17, 2015. No. S-14-701.
1. Taxation: Judgments: Appeal and Error. An appellate court reviews decisions
rendered by the Tax Equalization and Review Commission for errors appearing
on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appear-
ing on the record, an appellate court’s inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is not arbitrary, capricious,
or unreasonable.
3. Taxation: Appeal and Error. An appellate court reviews questions of law aris-
ing during appellate review of decisions by the Tax Equalization and Review
Commission de novo on the record.