Pearce v. Mutual of Omaha Ins. Co.
293 Neb. 277
| Neb. | 2016Background
- Kevin P. Pearce, formerly an agent/registered representative for Mutual of Omaha entities, used personal computers that contained both personal and client data.
- Mutual of Omaha and MOIS retained Pearce’s computers after his agency termination; Continuum (a security firm) stored them pending resolution.
- MOIS initiated FINRA arbitration against Pearce seeking passwords and return of client data; Pearce counterclaimed in that arbitration seeking return of his computers.
- Pearce filed a separate replevin action in district court against Mutual and Continuum for the same computers while arbitration with MOIS was pending; MOIS was not a party to the replevin action.
- Mutual and Continuum successfully moved to stay the replevin action based on overlap with the FINRA arbitration; Pearce later moved in district court to compel Mutual and Continuum to join the FINRA arbitration.
- The district court denied Pearce’s motion to compel arbitration because Pearce produced no arbitration agreement or statutory basis; Pearce appealed from that denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the order denying Pearce’s motion to compel arbitration is appealable under the Uniform Arbitration Act (UAA) | Pearce sought to compel Mutual and Continuum to participate in the ongoing FINRA arbitration; argued the stay order meant arbitration should apply to them | Mutual/Continuum argued no arbitration agreement existed between them and Pearce and that Pearce’s motion was not made under the UAA | Not appealable under the UAA — Pearce never showed an arbitration agreement as required by §25‑2603, so §25‑2620 did not authorize appeal |
| Whether the denial of arbitration is a final, appealable order under Neb. Rev. Stat. §25‑1902 (substantial-rights test) | Pearce argued the denial and prior stay effectively prevented him from having the dispute resolved fairly and that equitable estoppel might bind nonsignatories | Mutual/Continuum argued the order did not deprive Pearce of any contractual arbitration right because none was claimed; district court made no final ruling on enforceability or estoppel | Denial did not affect a substantial right. Because Pearce presented no preexisting contractual right to arbitrate (and raised estoppel only on appeal), the order was not a final, appealable order under §25‑1902 |
| Whether appellate review may consider contractual or estoppel theories not raised below | Pearce raised equitable estoppel arguments on appeal to bind nonsignatories to arbitration | Mutual/Continuum asserted appellate courts do not consider issues not presented to trial court | Court refused to consider new contractual/estoppel theories because they were not raised in the district court |
| Whether the prior stay compelled arbitration or made arbitration a fait accompli | Pearce claimed the stay’s rationale required Mutual/Continuum to arbitrate | Mutual/Continuum pointed out the stay did not decide enforceability or create an arbitration obligation as to them | Court held the stay did not resolve enforceability; it did not make arbitration binding on Mutual/Continuum and did not create a substantial right for Pearce to appeal |
Key Cases Cited
- Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 33 (2004) (denial of motion to compel arbitration can be final and appealable when it deprives a contractual arbitration right)
- Speece v. Allied Professionals Ins. Co., 289 Neb. 75, 853 N.W.2d 169 (2014) (denial of arbitration is appealable when it impairs a preexisting contractual arbitration right)
- Kremer v. Rural Community Ins. Co., 280 Neb. 591, 788 N.W.2d 538 (2010) (motions to compel arbitration may constitute a special proceeding)
- Wilczewski v. Charter West Nat. Bank, 290 Neb. 721, 861 N.W.2d 700 (2015) (denial without prejudice that makes no final determination on enforceability is not an appealable final order)
- State v. Jackson, 291 Neb. 908, 870 N.W.2d 133 (2015) (articulates standards for what constitutes a substantial right)
Conclusion: The Nebraska Supreme Court dismissed Pearce’s interlocutory appeal for lack of jurisdiction because the district court’s denial of his motion to compel arbitration was neither an appealable UAA order nor a final order affecting a substantial right under §25‑1902.