Ronald J. Palagi, P.C. v. Prospect Funding Holdings , 302 Neb. 769 ( 2019 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    04/19/2019 09:06 AM CDT
    - 769 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    Ronald J. Palagi, P.C., LLC, and Edrie A rlene
    Wheat, appellants, v. Prospect Funding
    Holdings (NY), LLC, appellee.
    ___ N.W.2d ___
    Filed April 5, 2019.     No. S-18-193.
    1.	 Judgments: Arbitration and Award: Federal Acts: Appeal and
    Error. In reviewing a decision to vacate, modify, or confirm an arbi-
    tration award under the Federal Arbitration Act, an appellate court is
    obligated to reach a conclusion independent of the trial court’s ruling as
    to questions of law. However, the trial court’s factual findings will not
    be set aside on appeal unless clearly erroneous.
    2.	 Summary Judgment. Summary judgment is proper when the pleadings
    and evidence admitted at the hearing disclose no genuine issue regard-
    ing any material fact or the ultimate inferences that may be drawn from
    those facts and that the moving party is entitled to judgment as a matter
    of law.
    3.	 Summary Judgment: Appeal and Error. In reviewing a summary
    judgment, an appellate court views the evidence in the light most
    favorable to the party against whom the judgment is granted and gives
    such party the benefit of all reasonable inferences deducible from
    the evidence.
    4.	 Arbitration and Award: Federal Acts: Contracts. Arbitration in
    Nebraska is governed by the Federal Arbitration Act if it arises from
    a contract involving interstate commerce; otherwise, it is governed by
    Nebraska’s Uniform Arbitration Act.
    5.	 Arbitration and Award: Federal Acts: Statutes: Contracts. When
    determining if an arbitration clause is governed by Nebraska’s Uniform
    Arbitration Act or the Federal Arbitration Act, the initial question is
    whether the parties’ contract evidences a transaction “involving com-
    merce” as defined by the Federal Arbitration Act.
    6.	 Arbitration and Award: Contracts: Motions to Vacate. When arbi-
    tration has already occurred and a party seeks to vacate, modify, or
    - 770 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    confirm an award, a court’s role is limited by the act governing the
    agreement.
    7.	 Summary Judgment: Motions for Continuance: Affidavits. Neb. Rev.
    Stat. § 25-1335 (Reissue 2016) provides a safeguard against an improvi-
    dent or premature grant of summary judgment.
    8.	 ____: ____: ____. As a prerequisite for a continuance, or additional
    time or other relief under Neb. Rev. Stat. § 25-1335 (Reissue 2016), a
    party must submit an affidavit stating a reasonable excuse or good cause
    for the party’s inability to oppose a summary judgment motion. Such
    affidavits should specifically identify the relevant information that will
    be obtained with additional time and indicate some basis for the conclu-
    sion that the sought information actually exists.
    Appeal from the District Court for Douglas County: Leigh
    A nn R etelsdorf, Judge. Affirmed.
    Ronald J. Palagi and Donna S. Colley, of Law Offices of
    Ronald J. Palagi, P.C., L.L.C., for appellants.
    Adam W. Barney, of Cline, Williams, Wright, Johnson &
    Oldfather, L.L.P., for appellee.
    Heavican, C.J., Cassel, Stacy, Funke, and Freudenberg, JJ.,
    and Pirtle and Bishop, Judges.
    Stacy, J.
    After selling an interest in her personal injury claim to
    Prospect Funding Holdings (NY), LLC (Prospect), Edrie
    Arlene Wheat settled her claim. Thereafter, a dispute arose
    over the amount due Prospect. Prospect initiated arbitration
    proceedings against Wheat and the law firm representing
    her, identified in this case as Ronald J. Palagi, P.C., LLC
    (Palagi). Neither Wheat nor Palagi participated in the arbi-
    trations, and awards were eventually entered against each
    of them in favor of Prospect. Wheat and Palagi brought this
    interpleader action against Prospect in the district court for
    Douglas County, but did not seek to vacate, modify, or cor-
    rect the arbitration awards. Prospect filed a motion to confirm
    the arbitration awards and a motion for summary judgment,
    - 771 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    and the district court granted both. Wheat and Palagi appeal.
    We affirm.
    BACKGROUND
    Agreement
    At all relevant times, Palagi represented Wheat in connection
    with her personal injury claim. On July 5, 2016, with Palagi’s
    knowledge, Wheat and Prospect entered into what was cap-
    tioned a “Sale and Repurchase Agreement.” Under that agree-
    ment, Wheat sold Prospect the rights to any sums recovered on
    her personal injury claim, up to $23,120, in exchange for a net
    payment of $5,000. The agreement included a “[r]epurchase
    [s]chedule” which allowed Wheat to repurchase the proceeds
    of her claim for a set amount that increased every 6 months,
    up through January 1, 2020. The repurchase schedule applied
    a 60-percent annual percentage rate. As relevant here, Wheat
    could have repurchased the proceeds of her claim on or before
    January 1, 2017, for $8,840.
    In the event of a breach, the agreement called for liqui-
    dated damages “in the amount of twice the prospect owner-
    ship amount regardless of the outcome of the legal claim
    or the amount of the proceeds. In addition, [the] breaching
    party shall pay for all collection costs, including reasonable
    attorney’s fees and expenses of [the] non-breaching party.”
    The agreement also contained an arbitration provision which
    expressly referenced the Federal Arbitration Act (FAA)1 and
    provided in relevant part:
    The parties waive the right to trial by jury and waive
    any right to pursue disputes on a class wide basis in
    any action or proceeding instituted with respect to this
    agreement. The parties agree that the issue of arbitra-
    bility shall be decided by the arbitrator and not by any
    other person. That is, the question of whether a dispute
    itself is subject to arbitration shall be decided solely by
    1
    9 U.S.C. §§ 1 through 16 (2012).
    - 772 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    the arbitrator and not, for example, by any court. In so
    doing, the intent of the parties is to divest any and all
    courts of jurisdiction in disputes involving the parties,
    except for the confirmation of the award and enforce-
    ment. The [FAA] applies to this agreement and arbi-
    tration provision. We each agree that the FAA’s provi-
    sions—not state law—govern all questions of whether a
    dispute is subject to arbitration. Any dispute or disagree-
    ment between these parties arising under this agreement
    or otherwise of any nature whatsoever including, but
    not limited to, those sounding in constitutional, statu-
    tory, or common law theories as to the performance of
    any obligations, the satisfaction of any rights, and/or the
    enforceability hereof, shall be resolved through demand
    by any party and/or interested party to arbitrate the dis-
    pute in New York in and under the laws of the State of
    New York and shall submit the same to a neutral arbi-
    tration association for resolution pursuant to its single
    arbitrator, expedited rules. . . . The arbitration decision
    shall be final and binding in all respects and shall be
    non-appealable. Any person may have a court of compe-
    tent jurisdiction confirm the arbitration award as a judg-
    ment of such court and enter into its record the findings
    of such arbitrators for all purposes, including for the
    enforcement of the award. The prevailing party in any
    dispute shall be entitled to all reasonable attorneys’ fees
    and costs, expenses and disbursements with respect to
    such dispute.
    The agreement, which was signed by Wheat as the “seller”
    and a Prospect representative as the “purchaser,” included the
    following paragraph which was signed by Palagi:
    [Palagi] hereby certifies to [Prospect] that [Palagi] has
    reviewed the terms and conditions of this Sales [sic] and
    Repurchase Agreement and explained such terms and
    conditions to [Wheat], including all costs and fees and
    including [Wheat’s] ability to repurchase the Prospect
    - 773 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    Ownership Amount according to the Repurchase Schedule
    and Amount of Repurchase. I have a written fee agree-
    ment with [Wheat] to pay my fees contingent on the
    outcome of the case. I agree that all disputes regarding
    this agreement will be resolved via arbitration and I have
    explained this to [Wheat]. All proceeds of the legal claim
    will be disbursed via the attorney’s trust account and the
    attorney is following the written instructions of [Wheat]
    with regard to this Sale and Repurchase Agreement, and
    Irrevocable Letter of Directions which [the] attorney has
    acknowledged.
    When Wheat signed the agreement, she also signed an
    “Irrevocable Letter of Direction” addressed to Palagi. This
    letter generally instructed Palagi, after payment of all legal
    fees, to disburse any recovery amounts to Prospect up to the
    amount covered in the contract before disbursing the remainder
    to Wheat. The letter also directed that if any dispute arose as
    to the amount owed to Prospect, Palagi was to pay the non-
    disputed amount to Prospect and hold the disputed amount
    in his client trust account until the dispute was resolved
    through arbitration. The letter included an attorney acknowl-
    edgment of all instructions contained therein, and Palagi signed
    that acknowledgment.
    Settlement
    In December 2016, Wheat settled her personal injury claim
    for an amount which is not disclosed in the record. Palagi set
    aside $8,840 of the settlement proceeds—an amount equal to
    the repurchase amount at that time—in his client trust account
    and disbursed the remainder of the settlement funds. The
    record is unclear regarding any attempts made by Wheat or
    Palagi thereafter to repurchase the proceeds under the terms of
    the agreement. However, once Prospect learned it would not
    be paid the full amount due under the agreement, it initiated
    separate arbitration proceedings—one against Palagi and the
    other against Wheat.
    - 774 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    A rbitration Proceedings
    and Award
    After arbitration proceedings were initiated, “Arbitration
    Resolution Services” sent an email to Wheat, advising that
    Prospect had initiated arbitration proceedings and that Wheat
    “ha[d] failed to sign into the [arbitrator’s] website and ver-
    ify [her] participation in the arbitration.” The email warned,
    “Unless you do so by Feb[.] 02, 2017, the arbitration will pro-
    ceed without your involvement and an arbitration award may
    be entered against you.” An attorney with the Palagi law firm
    responded to this email, arguing generally that the agreement
    was void under Nebraska law. Neither Wheat nor Palagi oth-
    erwise participated in the arbitrations, and they were found by
    the arbitrator to have provided “no response.”
    On June 8, 2017, the arbitrator issued an award in favor of
    Prospect and against Palagi in the sum of $23,120. Thereafter,
    on August 3, 2017, the arbitrator issued an award in favor
    of Prospect and against Wheat in the sum of $46,240, a
    sum that represented the amount of liquidated damages due
    under the agreement. The arbitrator found the agreement
    between Wheat and Prospect was valid and enforceable and
    had been breached.
    Interpleader Action
    Eight days after the first arbitration award was issued,
    Wheat, still represented by Palagi, filed what was styled an
    interpleader action in the district court for Douglas County.
    The complaint alleged Palagi was in possession of $8,840
    to which both Wheat and Prospect claimed entitlement. The
    complaint also alleged the agreement between Wheat and
    Prospect was invalid and unenforceable for a variety of rea-
    sons, including that Prospect was not registered to trans-
    act business in Nebraska, the agreement did not comply
    with Nebraska’s Nonrecourse Civil Litigation Act,2 and the
    2
    Neb. Rev. Stat. §§ 25-3301 to 25-3309 (Reissue 2016).
    - 775 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    interest rate charged was usurious. The complaint requested
    an order directing the disputed sums to be deposited with the
    court pending further determination of the proper allocation
    of the funds, and also asking the court to determine the valid-
    ity of the agreement and enjoin Prospect’s collection efforts
    in the meantime. Palagi amended the complaint on June 27,
    2017, to include the Palagi law firm as a party plaintiff and
    filed a second amended complaint on November 16 to cor-
    rect Prospect’s legal name. Neither the original, amended, nor
    second amended complaint mentioned the arbitration proceed-
    ings, and none requested the awards be vacated, modified,
    or corrected.
    On November 20, 2017, Prospect filed an answer raising
    the affirmative defense of “[a]rbitration and [a]ward” and, in
    a counterclaim, seeking judicial confirmation of the arbitration
    awards. At the same time, Prospect filed a motion to confirm
    the arbitration awards pursuant to 9 U.S.C. § 9 of the FAA.
    Prospect also moved for summary judgment on the amended
    complaint, arguing that there was no genuine issue of material
    fact and that Prospect was entitled to judgment as a matter of
    law on its affirmative defense of arbitration and award.
    A hearing on Prospect’s motions was held January 22, 2018.
    Prospect offered an affidavit which included the agreement, the
    arbitration notices, and the arbitration awards. This evidence
    was received without objection, and no evidence was offered in
    opposition. Neither Wheat nor Palagi argued they lacked notice
    of the arbitration proceedings or awards.
    During the hearing, the judge observed that the operative
    complaint appeared to be focused on rescinding or voiding
    the agreement, remarking, “I’m concerned . . . about why the
    arbitration award was not addressed within the appropriate
    time frame.” Wheat’s counsel responded it was the plaintiffs’
    position that “the overall contract . . . was void” and that there-
    fore, Prospect “could not go forward with arbitration on a void
    contract.” The court received the parties’ briefing and took the
    motions under advisement.
    - 776 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    Seven days later, while the motions were still under submis-
    sion, Palagi filed a motion to withdraw as Wheat’s counsel,
    citing a conflict of interest. At the same time, Wheat and Palagi
    filed a motion seeking leave to further amend their complaint
    “to make it clear that [Wheat and Palagi have] been and [are]
    moving the Court to vacate, modify or correct the arbitration
    award as described in the [FAA].” The motion for leave to
    amend was noticed for hearing on February 13, 2018, but did
    not ask the court to defer ruling on Prospect’s motions for con-
    firmation and summary judgment.
    On February 2, 2018, the district court entered an order
    granting Prospect’s motion to confirm the arbitration awards
    and also granting Prospect’s motion for summary judgment.
    The court found the agreement was governed by the FAA, rea-
    soning that it involved interstate commerce and that the parties
    had expressly agreed the FAA would apply. The court went on
    to hold:
    [Wheat and Palagi] do not contend that they sought to
    vacate, modify, or correct the arbitration award within
    the three months provided by the FAA. Instead, [they]
    argue that there is a genuine issue of material fact as to
    whether the . . . [a]greement is void under Nebraska law.
    However, attempts to challenge the arbitration awards
    are required to have been filed within three months of
    the awards. [Wheat and Palagi] did not do so. [Their]
    Complaint ignores the arbitration clause and awards in
    their entirety. [They] did not seek to have the arbitration
    awards set aside within the time limits prescribed by the
    FAA. They have waived any defenses to enforcement of
    the arbitration awards and the arbitration awards are sub-
    ject to confirmation.
    The court thus granted both the motion to confirm and the
    motion for summary judgment on the operative complaint. The
    court’s February 2 order provided:
    [Prospect’s] Motion to Confirm Arbitration Awards and
    Motion for Summary Judgment are granted. The Court
    - 777 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    orders that judgment be entered in the amount of $46,240
    in favor of Prospect . . . and against Wheat and in
    the amount of $23,140 in favor of Prospect . . . and
    against Palagi. [Prospect’s] motion for summary judgment
    on [Wheat and Palagi’s] claim is granted. [Wheat and
    Palagi’s] claim is dismissed with prejudice.
    The February 2, 2018, order did not address Palagi’s pend-
    ing motion to withdraw as Wheat’s counsel or the pending
    motion to further amend the complaint, neither of which had
    yet proceeded to hearing. But 11 days later, on February 13,
    a hearing on both these motions was held as originally sched-
    uled. At that hearing, Wheat and Palagi also moved the court to
    alter or amend the February 2 judgment.
    In an order entered February 15, 2018, the district court
    overruled all pending motions. It overruled the motion to
    amend the complaint, finding that the proposed amendment
    would not create a triable issue of fact. It overruled the motion
    to alter or amend the judgment entered February 2, reasoning
    the motion was not brought within 10 days as required by Neb.
    Rev. Stat. § 25-1329 (Reissue 2016). And it found Palagi’s
    motion to withdraw was moot because the case was effec-
    tively concluded.
    A timely notice of appeal was filed, and we moved the case
    to our docket on our own motion.
    ASSIGNMENTS OF ERROR
    Wheat and Palagi assign, restated, that the trial court erred
    in (1) granting Prospect’s motion for summary judgment before
    discovery was concluded and (2) failing to find the agree-
    ment was invalid and unenforceable for any of the following
    reasons: (a) Prospect was not properly registered to transact
    business in Nebraska, (b) the agreement is usurious and vio-
    lates Neb. Rev. Stat. § 45-105 (Reissue 2010), (c) the agree-
    ment’s liquidated damages provision violates public policy,
    (d) the agreement does not comply with the Nonrecourse Civil
    - 778 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    Litigation Act,3 and (e) the agreement is champertous and vio-
    lates public policy.
    STANDARD OF REVIEW
    [1] In reviewing a decision to vacate, modify, or confirm an
    arbitration award under the FAA, an appellate court is obligated
    to reach a conclusion independent of the trial court’s ruling as
    to questions of law.4 However, the trial court’s factual findings
    will not be set aside on appeal unless clearly erroneous.5
    [2,3] Summary judgment is proper when the pleadings and
    evidence admitted at the hearing disclose no genuine issue
    regarding any material fact or the ultimate inferences that may
    be drawn from those facts and that the moving party is entitled
    to judgment as a matter of law.6 In reviewing a summary judg-
    ment, an appellate court views the evidence in the light most
    favorable to the party against whom the judgment is granted
    and gives such party the benefit of all reasonable inferences
    deducible from the evidence.7
    ANALYSIS
    [4] Before addressing the arbitration issues raised by the
    parties, we must decide whether our analysis is governed by
    Nebraska’s Uniform Arbitration Act (UAA), or by the FAA.
    Arbitration in Nebraska is governed by the FAA if it arises
    from a contract involving interstate commerce; otherwise, it is
    governed by the UAA.8
    [5] When determining if an arbitration clause is governed by
    the UAA or the FAA, the initial question is whether the parties’
    3
    See §§ 25-3301 to 25-3309.
    4
    First Options of Chicago, Inc. v. Kaplan, 
    514 U.S. 938
    , 
    115 S. Ct. 1920
    ,
    
    131 L. Ed. 2d 985
    (1995).
    5
    Id.
    6
    Colwell v. Mullen, 
    301 Neb. 408
    , 
    918 N.W.2d 858
    (2018).
    7
    Id.
    8
    State v. Henderson, 
    277 Neb. 240
    , 
    762 N.W.2d 1
    (2009).
    - 779 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    contract evidences a transaction “‘“involving commerce”’” as
    defined by the FAA.9 That is because the FAA applies to any
    “written provision in . . . a contract evidencing a transaction
    involving commerce.”10
    The U.S. Supreme Court has “interpreted the term ‘involv-
    ing commerce’ in the FAA as the functional equivalent of the
    more familiar term ‘affecting commerce’—words of art that
    ordinarily signal the broadest permissible exercise of Congress’
    Commerce Clause power.”11 Because Congress’ Commerce
    Clause power may be exercised in individual cases without
    showing any specific effect upon interstate commerce where
    in the aggregate the economic activity in question would rep-
    resent a general practice subject to federal control, the same
    must be said for application of the FAA.12 This concept was
    reinforced by the Court in Citizens Bank v. Alafabco, Inc.,13
    which held the FAA applies “if in the aggregate the economic
    activity in question would . . . bear on interstate commerce in
    a substantial way.”
    In the instant case, we agree with the district court that the
    FAA governs the parties’ agreement. Neither party argues to
    the contrary. The parties specifically contracted for the FAA to
    apply, and “[n]o elaborate explanation is needed . . .”14 to show
    that an agreement between a foreign company and a Nebraska
    resident to purchase rights involving personal injury settlement
    funds affects interstate commerce.
    9
    Wilczewski v. Charter West Nat. Bank, 
    295 Neb. 254
    , 260, 
    889 N.W.2d 63
    ,
    68 (2016) (quoting Aramark Uniform & Career Apparel v. Hunan, Inc.,
    
    276 Neb. 700
    , 
    757 N.W.2d 205
    (2008), quoting 9 U.S.C. § 2).
    10
    9 U.S.C. § 2.
    11
    Citizens Bank v. Alafabco, Inc., 
    539 U.S. 52
    , 56, 
    123 S. Ct. 2037
    , 156 L.
    Ed. 2d 46 (2003) (quoting Allied-Bruce Terminix Cos. v. Dobson, 
    513 U.S. 265
    , 
    115 S. Ct. 834
    , 
    130 L. Ed. 2d 753
    (1995)).
    12
    Wilczewski, supra note 9.
    13
    Citizens Bank, supra note 
    11, 539 U.S. at 57
    .
    14
    
    Id., 539 U.S.
    at 58. See, also, Wilczewski, supra note 9.
    - 780 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    We thus consider the issues raised in this appeal within
    the framework of the FAA. We first consider the challenges
    to the validity and enforceability of the agreement and then
    address the argument that summary judgment was entered
    prematurely.
    Judicial Confirmation
    In all but their first assignment of error, Wheat and Palagi
    argue the underlying agreement between Wheat and Prospect
    was invalid and unenforceable. They assert a number of rea-
    sons why the agreement was unenforceable, only some of
    which were presented to the district court. Due to the proce-
    dural posture of this case, we do not address the merits of any
    of these arguments because, as explained below, the validity
    and enforceability of the underlying agreement was not before
    the district court on the motion to confirm arbitration.
    This is not a case in which the district court was asked
    to consider the enforceability of the arbitration provisions
    in the context of a motion to compel arbitration or a request
    to stay litigation pending arbitration. Instead, as the district
    court found, the arbitration agreement was not mentioned
    at all in this case until after the arbitration proceedings had
    been completed and awards had been entered. Given that
    procedural posture, the court’s role regarding the arbitration
    was limited.
    [6] When arbitration has already occurred and a party seeks
    to vacate, modify, or confirm an award, a court’s role is limited
    by the act governing the agreement.15 Where, as here, the FAA
    governs the agreement, the court’s role is strictly confined by
    9 U.S.C. §§ 9 through 11 of that act.16 As the U.S. Supreme
    Court has explained, 9 U.S.C. §§ 10 and 11 provide the exclu-
    sive regimes of judicial review for agreements governed by
    15
    See Hall Street Associates, L. L. C. v. Mattel, Inc., 
    552 U.S. 576
    , 128 S.
    Ct. 1396, 
    170 L. Ed. 2d 254
    (2008).
    16
    
    Id. - 781
    -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    the FAA.17 And motions to vacate, modify, or correct an award
    pursuant to §§ 10 or 11 are governed by 9 U.S.C. § 12, which
    states in part that “[n]otice of a motion to vacate, modify,
    or correct an award must be served upon the adverse party
    or his attorney within three months after the award is filed
    or delivered.”
    The second amended complaint was filed November 16,
    2017, several months after the arbitration awards were issued,
    yet it did not mention the arbitration proceedings or seek to
    modify, correct, or vacate the awards. Neither the original
    complaint, the amended complaint, nor the second amended
    complaint mentioned the arbitration proceedings at all, and
    none sought any relief related to the arbitration proceedings.
    Instead, the first time arbitration was raised in this liti-
    gation was on November 20, 2017, when Prospect filed
    its answer alleging the arbitration awards as an affirmative
    defense and simultaneously moved to confirm the awards
    and moved for summary judgment on the interpleader com-
    plaint. By this time, the 3-month time limit for moving to
    judicially vacate, modify, or correct the arbitration awards had
    lapsed, and no one contends otherwise. Rather than moving to
    vacate the arbitration awards, Wheat and Palagi continued to
    focus their efforts on litigating the validity and enforceabil-
    ity of the overall agreement. Eventually, while the motions
    to confirm the awards and grant summary judgment were
    under submission, Wheat and Palagi sought leave to amend
    their operative complaint to include a request to vacate the
    arbitration awards, but the district court denied such amend-
    ment as futile, and no error has been assigned to that ruling
    on appeal.
    If Wheat and Palagi had filed a timely motion to vacate the
    awards, the legal analysis required by the district court would
    have been different. But this case does not require analysis
    17
    
    Id. - 782
    -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    of whether any grounds exist for vacating the awards against
    Wheat and Palagi, because there has been no timely motion
    seeking such relief. As such, the district court correctly found
    it was constrained by § 9 of the FAA, which states in rel-
    evant part:
    [A]t any time within one year after the award is made any
    party to the arbitration may apply to the court so speci-
    fied for an order confirming the award, and thereupon
    the court must grant such an order unless the award is
    vacated, modified, or corrected as prescribed in sections
    10 and 11 of this title.
    The U.S. Supreme Court has said § 9 “carries no hint of
    flexibility.”18 It has explained that pursuant to § 9:
    On application for an order confirming the arbitration
    award, the court “must grant” the order “unless the award
    is vacated, modified, or corrected as prescribed in sec-
    tions 10 and 11 of this title.” There is nothing malleable
    about “must grant,” which unequivocally tells courts to
    grant confirmation in all cases, except when one of the
    “prescribed” exceptions applies.19
    Thus, when Prospect moved to confirm the arbitration awards,
    the district court was required to grant that motion “unless the
    award is vacated, modified, or corrected as prescribed in sec-
    tions 10 and 11 of this title.”20
    In Hartman v. City of Grand Island,21 a case governed by the
    UAA, we considered similar circumstances. There, we affirmed
    a district court order confirming an arbitration award where the
    party opposing the confirmation had not filed a timely motion
    to vacate, modify, or correct the award as permitted under the
    UAA. We noted the limited role of the court was to confirm
    18
    Hall Street Associates, L. L. C., supra note 
    15, 552 U.S. at 587
    .
    19
    
    Id. 20 9
    U.S.C. § 9.
    21
    Hartman v. City of Grand Island, 
    265 Neb. 433
    , 
    657 N.W.2d 641
    (2003).
    - 783 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    the award under such circumstances,22 and we did not address
    the merits of challenges being raised to the validity or enforce-
    ability of the award. We explained that where arbitration is
    concerned, “‘“the courts are not equipped to provide the same
    judicial review given to structured judgments defined by pro-
    cedural rules and legal principles. Parties should be aware that
    they get what they bargain for and that arbitration is far different
    from adjudication.”’”23
    Similar provisions under the FAA required the district court
    to confirm the arbitration awards when no timely motion to
    vacate, modify, or correct the awards had been filed.24 On this
    record, the district court correctly found that Prospect was
    entitled to confirmation of the arbitration awards, and no error
    has been assigned to that confirmation on appeal.
    Instead, Wheat and Palagi’s assignments of error focus on
    a myriad of legal challenges to the validity and enforceability
    of the underlying agreement. But they ignore that these issues
    have already been resolved against them in binding arbitra-
    tion, and they did not thereafter seek to vacate, modify, or
    correct the arbitration award within the time period permitted
    under the FAA. Given the procedural posture of this case, the
    assignments of error raised by Wheat and Palagi challenging
    the validity and enforceability of the underlying agreement
    lack merit and are premised on a fundamental misunderstand-
    ing of the limited role of the court once an arbitration award
    is entered, a motion to confirm is filed, and there has been no
    timely motion to vacate, modify, or correct the award.
    22
    
    Id. at 437,
    657 N.W.2d at 645 (“‘[w]ithin sixty days of the application
    of a party, the court shall confirm an award, unless within the time limits
    hereinafter imposed grounds are urged for vacating or modifying or
    correcting the award, in which case the court shall proceed as provided
    in sections 25-2613 and 25-2614,’” quoting Neb. Rev. Stat. § 25-2612
    (Reissue 2016)).
    23
    
    Id. at 437-38,
    657 N.W.2d at 645-46.
    24
    9 U.S.C. § 9.
    - 784 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    Summary Judgment Was
    Not Premature
    In their remaining assignment of error, Wheat and Palagi
    claim the district court erred in granting summary judgment
    before discovery had been completed. They argue generally
    that the motion was ruled on before they had “the opportu-
    nity to complete reasonable, relevant discovery,”25 but they
    do not identify what discovery was incomplete or otherwise
    challenge the granting of summary judgment. We confine our
    analysis accordingly.
    [7] Neb. Rev. Stat. § 25-1335 (Reissue 2016) provides a
    safeguard against an improvident or premature grant of sum-
    mary judgment,26 but Wheat and Palagi did not, at any time
    before the court ruled on the summary judgment motion, seek
    to invoke the protections of that statute, which provides:
    Should it appear from the affidavits of a party oppos-
    ing the motion that he cannot for reasons stated present
    by affidavit facts essential to justify his opposition, the
    court may refuse the application for judgment or may
    order a continuance to permit affidavits to be obtained
    or depositions to be taken or discovery to be had or may
    make such other order as is just.
    [8] We have explained that “[a]s a prerequisite for a con-
    tinuance, or additional time or other relief, a party is required
    to submit an affidavit stating a reasonable excuse or good
    cause for the party’s inability to oppose a summary judgment
    motion.”27 Such affidavits should specifically identify the rel-
    evant information that will be obtained with additional time
    and indicate some basis for the conclusion that the sought
    information actually exists.28
    25
    Brief for appellants at 6.
    26
    See Lombardo v. Sedlacek, 
    299 Neb. 400
    , 
    908 N.W.2d 630
    (2018).
    27
    Gaytan v. Wal-Mart, 
    289 Neb. 49
    , 55-56, 
    853 N.W.2d 181
    , 191 (2014).
    28
    Lombardo, supra note 26.
    - 785 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    RONALD J. PALAGI, P.C. v. PROSPECT FUNDING HOLDINGS
    Cite as 
    302 Neb. 769
    Here, no such motion or showing was made before Prospect’s
    motion for summary judgment was submitted to and ruled on
    by the district court. We can find no abuse of discretion in
    failing to grant a continuance that was never requested. This
    assignment of error is meritless.
    CONCLUSION
    Wheat and Palagi assert assignments of error challeng-
    ing the validity and enforceability of the agreement between
    Wheat and Prospect. But the validity and enforceability of that
    agreement was determined in binding arbitration. Wheat and
    Palagi did not participate in the arbitration or ask the district
    court to enjoin the arbitration, and once awards were entered
    against them, they did not move to vacate, modify, or correct
    those awards within the time permitted by the FAA. As such,
    when Prospect moved to confirm the arbitration awards under
    § 9 of the FAA, the district court was required by the FAA to
    do so. Finding no merit to the assignments of error, we affirm
    the judgment of the district court.
    A ffirmed.
    Miller-Lerman and Papik, JJ., not participating.