Cinatl v. Prososki , 307 Neb. 477 ( 2020 )


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    www.nebraska.gov/apps-courts-epub/
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    CINATL v. PROSOSKI
    Cite as 
    307 Neb. 477
    Robert H. Cinatl, appellant, v. Karen R. Prososki,
    Personal Representative of the Estate of Robert
    R. Prososki, deceased, and Karen R. Prososki,
    individually and as beneficiary of the Estate
    of Robert R. Prososki, deceased, appellee.
    ___ N.W.2d ___
    Filed October 16, 2020.   No. S-19-972.
    1. Appeal and Error. An alleged error must be both specifically assigned
    and specifically argued in the brief of the party asserting the error to be
    considered by an appellate court.
    2. Jurisdiction: Appeal and Error. A jurisdictional question which does
    not involve a factual dispute is determined by an appellate court as a
    matter of law.
    3. Arbitration and Award: Appeal and Error. In reviewing a decision
    to vacate, modify, or confirm an arbitration award, 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.
    4. 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.
    5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
    to acquire jurisdiction of an appeal, the party must be appealing from a
    final order or a judgment.
    6. Judgments: Final Orders: Words and Phrases. A judgment is the
    final determination of the rights of the parties in an action.
    7. Judgments: Words and Phrases. Every direction of the court made or
    entered in writing and not included in a judgment is an order.
    8. Judgments: Final Orders: Statutes: Appeal and Error. While all
    judgments not incorrectly designated as such are appealable, an order
    may be appealed only if a statute expressly makes the order appealable
    or the order falls within the statutory definition of a final order.
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    CINATL v. PROSOSKI
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    307 Neb. 477
    9. Arbitration and Award: Final Orders: Appeal and Error. When
    Neb. Rev. Stat. § 25-2620 (Reissue 2016) is silent regarding the appeal-
    ability of an arbitration-related order, an appellate court looks to the
    general final order statute to determine whether the order is final and
    appealable.
    10. Final Orders: Appeal and Error. To be a final order subject to appel-
    late review, the lower court’s order must (1) affect a substantial right
    and determine the action and prevent a judgment, (2) affect a substantial
    right and be made during a special proceeding, (3) affect a substantial
    right and be made on summary application in an action after a judg-
    ment is rendered, or (4) deny a motion for summary judgment which
    was based on the assertion of sovereign immunity or the immunity of a
    government official.
    11. Final Orders. Whether an order affects a substantial right depends on
    whether it affects with finality the rights of the parties in the subject
    matter.
    12. Arbitration and Award: Motions to Vacate. When arbitration has
    already occurred and a party seeks to vacate, modify, or confirm an
    award, an extraordinary level of deference is given to the underlying
    award itself.
    13. Contracts: Rescission: Parties. The purpose of rescission is to place
    the parties in a status quo, that is, return the parties to their position
    which existed before the rescinded contract; hence, rescission may be
    unavailable unless the parties can be placed substantially in the sta-
    tus quo.
    14. Arbitration and Award. The Uniform Arbitration Act does not allow
    for the exercise of discretion by a court when a request for confirmation
    is made and there is no pending application for vacation, modification,
    or correction.
    15. Statutes: Words and Phrases. As a general rule, the word “shall” in
    a statute is considered mandatory and is inconsistent with the idea of
    discretion.
    16. Trial: Evidence: Appeal and Error. In a civil case, the admission or
    exclusion of evidence is not reversible error unless it unfairly prejudiced
    a substantial right of the complaining party.
    Appeal from the District Court for Buffalo County: John H.
    Marsh, Judge. Affirmed.
    Michael J. Synek for appellant.
    Patrick J. Nelson, of Law Office of Patrick J. Nelson, for
    appellee.
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    CINATL v. PROSOSKI
    Cite as 
    307 Neb. 477
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Cassel, J.
    INTRODUCTION
    An arbitration award rejected Robert H. Cinatl’s fraud-in-
    the-inducement claim seeking to rescind his contract to pur-
    chase an orthodontics practice. After the district court declined
    to vacate the arbitrator’s award, the court confirmed it. Cinatl
    appeals. Because the refusal to vacate the award remained
    interlocutory until the award was confirmed, we consider
    but reject Cinatl’s challenge to the first order. We conclude
    the court properly confirmed the award. Finding no merit to
    Cinatl’s other arguments, we affirm the court’s judgment.
    BACKGROUND
    In 1989, Robert R. Prososki (Dr. Prososki) began an ortho-
    dontics practice in Kearney, Nebraska. He ceased practicing
    in July 2013, upon being diagnosed with cancer. Dr. Prososki
    hired an agent to broker a sale of the practice. The broker
    prepared an investor prospectus for the practice and provided
    a copy to Cinatl, an orthodontist. Relying on representations
    in the prospectus, Cinatl entered into a written contract in
    October with Dr. Prososki for the purchase of the practice
    and entered into a lease with Dr. Prososki and his wife for the
    office building.
    On October 29, 2013, Cinatl began operating the practice.
    Shortly thereafter, he discovered what he considered to be
    misrepresentations in the investor prospectus. In December,
    Cinatl notified Dr. Prososki and his wife, via their attorney,
    that Cinatl wanted to set aside the contract. He received no
    response.
    In August 2015, Dr. Prososki died. At the end of October,
    Cinatl ceased operating at the practice’s location, though he
    rented space elsewhere for the next 14 months to “complete
    [his] patients.”
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    CINATL v. PROSOSKI
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    307 Neb. 477
    Pleadings
    In 2016, Cinatl sued Karen R. Prososki (Prososki), both as
    the personal representative of the estate of Dr. Prososki and
    individually. He sought rescission of the “Contract of Purchase
    and Sale of Dental Practice” and lease. Cinatl alleged that
    fraudulent misrepresentations were made, that he relied upon
    them, and that he suffered damages as a result of the false
    representations. Prososki’s answers (filed separately in her
    respective capacities) alleged that the complaint failed to state
    a claim upon which relief can be granted.
    Arbitration
    Because the contract contained a paragraph specifying man-
    datory arbitration “pursuant to the applicable arbitration laws
    of Nebraska,” Cinatl moved for appointment of an arbitrator.
    The district court found that the action was subject to arbitra-
    tion and sustained a motion to compel arbitration.
    The arbitrator conducted a hearing and received extensive
    evidence. Cinatl testified that by the first week of November
    2013, he “knew there was something very wrong, but [he]
    couldn’t put [his] finger on it.” He later discovered that many
    files which had been represented to him as active files had
    “been finished.” Cinatl called the broker in early November
    and stated that something was “very, very wrong.” Cinatl testi-
    fied a review of files conducted in December showed that the
    number of active patients would have been 345 but that the
    prospectus estimated 700 such patients. In December, Cinatl
    met with the attorney for Dr. Prososki and his wife to discuss
    perceived misrepresentations in the prospectus. Cinatl asked
    that Dr. Prososki and his wife “take the practice back, find
    somebody else.”
    In September 2015, Cinatl engaged a forensic accounting
    firm to review the practice’s records. Justin Frauendorfer, one
    of the owners of the accounting firm, reviewed the investor
    prospectus to verify its accuracy for Cinatl.
    Frauendorfer discovered that there were 311 active patient
    files on August 5, 2013, but that the prospectus represented
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    CINATL v. PROSOSKI
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    307 Neb. 477
    that there were approximately 700 active files. According to
    Frauendorfer, “[f]or this to be over 50 percent off is why in
    my professional opinion I would say that it was potentially
    intentional or reckless.” Frauendorfer could not say that the
    number of active patients was intentionally misrepresented—
    partly because he had not spoken with the person who made
    the representation—but he could say it was reckless.
    Frauendorfer discovered other discrepancies. The pro-
    spectus showed 200 patients in recall on August 5, 2013,
    but Frauendorfer found the number to be 228. The prospec-
    tus showed 1,400 total files, but Frauendorfer came up with
    “approximately, 600 plus files.” He believed the statement that
    1,400 total files existed showed a reckless disregard for the
    truth. The investor prospectus indicated that the number of new
    patients per month was 10, but Frauendorfer found that it was
    2. Frauendorfer opined that “this practice summary sheet was
    materially misstated.”
    Frauendorfer testified that there were 72 active Medicaid
    patients on August 5, 2013, representing $73,225 in Medicaid
    patient liability. He found there were 239 private pay patients
    on August 5, of which 39 had paid for services in advance,
    amounting to $34,654.50. According to Frauendorfer, the
    amount of contracts receivable on August 5 was $322,948.24,
    which changed to $269,672.64 on the October 28 date of clos-
    ing, a difference of $53,275.60. Based on Frauendorfer’s expe-
    rience, he would have expected that adjustment of the amount
    to be credited to Cinatl as the purchaser.
    Cinatl testified that “[a]t a minimum,” he was seeking to
    have the contract to purchase and the lease rescinded. He
    asked to be put back in the position that he occupied before
    entering the contract and lease and for Prososki to be restored
    back to the extent possible.
    On August 3, 2018, the arbitrator found in favor of Prososki
    on the issues pertaining to the sale of the practice and the
    lease. The arbitrator determined that Prososki had no role in
    the marketing and sale of the practice and made none of the
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    CINATL v. PROSOSKI
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    307 Neb. 477
    representations about which Cinatl complained. The arbitrator
    found that at all times between October 28, 2013, and the end
    of October 2015, Cinatl operated the orthodontic practice and
    retained the benefits of all he had acquired under the contract.
    The arbitrator concluded it was unnecessary to determine
    whether Prososki committed fraud in inducing Cinatl to enter
    into the contract. The arbitrator reasoned that Cinatl “did not
    rescind the contract but elected instead to receive the benefits
    of it for almost two years after he discovered the facts leading
    him to believe that he was defrauded.” Paragraph 13 of the
    arbitrator’s decision stated:
    During the time he operated the practice, Cinatl’s abil-
    ity to return Prososki to presale status quo diminished
    with each passing day. “The princip[al] relief effected
    by rescission is to place the parties in the same condi-
    tion as they were in before the making of the contract
    sought to be rescinded.” Kracl v. Loseke, 
    236 Neb. 291
    ,
    303, 
    461 N.W.2d 67
    , 76 (1990). “[T]he remedy of rescis-
    sion involves more than cancellation of a contract, and
    includes a judicial effort to place the contractual parties
    in, as nearly as possible, substantially the same condition
    which existed when the contract was entered. ‘[One] who
    seeks equity must do equity.’”
    Id. The arbitrator noted
    that while Cinatl expressed dissatisfaction
    in late 2013 with what he considered to be misrepresentations
    by Dr. Prososki, he did not pursue rescission until January
    2016—“over a year and ten months later”—when he filed a
    statement of claim in the estate of Dr. Prososki. By that time,
    the status quo at the time of closing of the contract could not
    be restored, particularly because Dr. Prososki had died and
    Cinatl had left patients without an orthodontist. The arbitrator
    determined that “[b]y continuing to operate his orthodontic
    practice at the office for over a year and ten months after the
    December 7, 2013, meeting, Cinatl ratified the contract and
    waived any cause of action he might have had arising from his
    purchase of the practice.”
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    CINATL v. PROSOSKI
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    307 Neb. 477
    District Court Proceedings
    Within 90 days of the arbitrator’s decision, Cinatl filed an
    application to vacate the award. He alleged that “[t]he arbitra-
    tor exceeded his authority by rendering a decision based upon
    issues and defenses which the parties had not raised in the
    pleadings, including but not limited to: estoppel, laches, statute
    of limitations, and waiver.”
    On January 28, 2019, the court entered an order denying
    the application to vacate. The court noted that it did not have
    the bill of exceptions from the arbitrator’s hearing or the writ-
    ten arguments submitted by the parties to the arbitrator. But
    in reviewing the arbitrator’s decision, the court did not “find
    a substantial, if any, reliance by the arbitrator on the equitable
    defenses alleged.” The court reasoned:
    Essentially, the arbitrator found that he did not need to
    address the issues of fraud or misrepresentation because
    it was impossible, given the passage of time, and circum-
    stances to provide the remedy of rescission in that both
    parties could not be placed back in the status quo exist-
    ing at the time the contracts were entered. This Court
    specifically refers to paragraph 13 of the arbitrator’s
    decision.
    Ten days later, Cinatl filed two motions. One motion, seek-
    ing a new trial, requested that the court “vacate the judgment
    and decision set forth in the Court’s Order, filed January 28,
    2019.” Cinatl identified four grounds for a new trial under Neb.
    Rev. Stat. § 25-1142 (Reissue 2016). The other motion, which
    was later sustained, requested an order for preparation of the
    record from the arbitration hearing. The next day, Prososki
    filed a motion to confirm the arbitrator’s award.
    During a hearing on the motion for new trial, Cinatl’s
    counsel argued that while the January 2019 order noted the
    absence of a bill of exceptions from the arbitrator’s hearing,
    counsel did not believe a transcription was necessary, because
    he was making a legal argument. Counsel then had the record
    prepared, but he maintained that the court should not need
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    CINATL v. PROSOSKI
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    307 Neb. 477
    the record to rule on the arguments made during the applica-
    tion to vacate.
    On August 12, 2019, the court entered an order overruling
    the motion for new trial. The court reasoned that the arbitra-
    tor’s decision was “not necessarily grounded in laches or estop-
    pel, but rather cite[d] an equitable principle that the parties
    cannot be placed in the same condition as they were before
    making the contract.”
    On August 16, 2019, Prososki filed an amended motion to
    confirm the arbitrator’s award. On September 10, the court
    entered an order doing so. In confirming the award, the court
    took judicial notice that no motion to modify or correct the
    arbitration award was pending.
    Thirty days later, Cinatl filed a notice of appeal. We moved
    this case to our docket. 1
    ASSIGNMENTS OF ERROR
    Cinatl assigns, consolidated, restated, and reordered, that
    the district court erred by (1) failing to vacate the arbitrator’s
    award and order a rehearing, (2) confirming the arbitrator’s
    award, (3) depriving Cinatl of his right to procedural due
    process at the hearing by refusing to review the arbitra-
    tion record, and (4) failing to rule upon the admissibility of
    an exhibit.
    [1] Cinatl also assigns but fails to argue that the court erred
    by improperly suggesting with regard to Cinatl’s application
    to vacate that the court needed to review a bill of exceptions
    from the arbitration hearing in order to consider the legal argu-
    ments presented by that application. An alleged error must be
    both specifically assigned and specifically argued in the brief
    of the party asserting the error to be considered by an appellate
    court. 2 Because his brief did not argue this assignment, we do
    not consider it.
    1
    See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
    2
    TNT Cattle Co. v. Fife, 
    304 Neb. 890
    , 
    937 N.W.2d 811
    (2020).
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    CINATL v. PROSOSKI
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    307 Neb. 477
    STANDARD OF REVIEW
    [2] A jurisdictional question which does not involve a factual
    dispute is determined by an appellate court as a matter of law. 3
    [3] In reviewing a decision to vacate, modify, or confirm
    an arbitration award, an appellate court is obligated to reach
    a conclusion independent of the trial court’s ruling as to ques-
    tions of law. However, the trial court’s factual findings will not
    be set aside on appeal unless clearly erroneous. 4
    ANALYSIS
    Jurisdiction
    [4-8] 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. 5 For an appellate
    court to acquire jurisdiction of an appeal, the party must be
    appealing from a final order or a judgment. 6 A judgment is the
    final determination of the rights of the parties in an action. 7
    Every direction of the court made or entered in writing and
    not included in a judgment is an order. 8 While all judgments 9
    not incorrectly designated as such 10 are appealable, an order
    may be appealed only if a statute expressly makes the order
    appealable or the order falls within the statutory definition of
    a final order. 11
    Cinatl’s October 10, 2019, notice of appeal purported to
    appeal from three orders. He sought to appeal the January 28
    3
    Picard v. P & C Group 1, 
    306 Neb. 292
    , 
    945 N.W.2d 183
    (2020).
    4
    Garlock v. 3DS Properties, 
    303 Neb. 521
    , 
    930 N.W.2d 503
    (2019).
    5
    Cullinane v. Beverly Enters. - Neb., 
    300 Neb. 210
    , 
    912 N.W.2d 774
         (2018).
    6
    State v. Fredrickson, 
    306 Neb. 81
    , 
    943 N.W.2d 701
    (2020).
    7
    Neb. Rev. Stat. § 25-1301(1) (Cum. Supp. 2018).
    8
    State v. Fredrickson, supra note 6.
    9
    See § 25-1301(1) (defining judgment).
    10
    See Neb. Rev. Stat. § 25-1315(1) (Reissue 2016).
    11
    See State v. Fredrickson, supra note 6.
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    order denying his application to vacate the arbitrator’s award,
    the August 12 order overruling his motion for new trial (in con-
    nection with the denial of the application to vacate), and the
    September 10 order confirming the arbitration award. Prososki
    challenges our jurisdiction of the first two of those orders.
    To determine whether the orders are appealable, we first
    consider whether they are appealable orders under the Uniform
    Arbitration Act (UAA) 12 and, if not, whether they are final
    orders under Neb. Rev. Stat. § 25-1902 (Reissue 2016 & Supp.
    2019). 13 Both parties base their arguments on the UAA, seem-
    ingly treating the contract as having agreed to arbitration based
    upon that law. We see no reason to do otherwise.
    The UAA contains a statute addressing appeals. Under
    § 25-2620(a), an appeal may be taken from the following:
    (1) An order denying an application to compel arbitra-
    tion made under section 25-2603;
    (2) An order granting an application to stay arbitration
    made under subsection (b) of section 25-2603;
    (3) An order confirming or denying confirmation of
    an award;
    (4) An order modifying or correcting an award;
    (5) An order vacating an award without directing a
    rehearing; or
    (6) A judgment or decree entered pursuant to the provi-
    sions of the [UAA].
    Section 25-2620(a)(3) identifies an order confirming an
    award as an appealable order. Cinatl filed an appeal within 30
    days of the September 2019 order confirming the arbitration
    award, and there is no dispute we have jurisdiction to consider
    that order.
    [9] Whether the January 2019 order denying Cinatl’s appli-
    cation to vacate is appealable is not as clear cut. While the
    12
    Neb. Rev. Stat. §§ 25-2601 to 25-2622 (Reissue 2016 & Cum. Supp.
    2018).
    13
    See Pearce v. Mutual of Omaha Ins. Co., 
    293 Neb. 277
    , 
    876 N.W.2d 899
         (2016).
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    UAA explicitly allows an appeal from an order vacating an
    arbitration award, 14 it is silent as to whether a party may appeal
    an order denying an application to vacate. We have stated that
    when § 25-2620 is silent regarding the appealability of an
    arbitration-related order, we look to the general final order
    statute to determine whether the order is final and appealable. 15
    [10] Under our final order statute, 16 to be a final order sub-
    ject to appellate review, the lower court’s order must (1) affect
    a substantial right and determine the action and prevent a judg-
    ment, (2) affect a substantial right and be made during a special
    proceeding, (3) affect a substantial right and be made on sum-
    mary application in an action after a judgment is rendered, or
    (4) deny a motion for summary judgment which was based on
    the assertion of sovereign immunity or the immunity of a gov-
    ernment official. 17 Because this appeal clearly does not involve
    the last category, we first determine whether the order affected
    a substantial right of one or more parties. 18
    [11] The inquiry of whether a substantial right is affected
    focuses on whether the right at issue is substantial and whether
    the court’s order has a substantial impact on that right. 19
    Whether an order affects a substantial right depends on whether
    it affects with finality the rights of the parties in the subject
    matter. 20 It also depends on whether the right could otherwise
    effectively be vindicated. 21 An order affects a substantial right
    when the right would be significantly undermined or irrevoca-
    bly lost by postponing appellate review. 22
    14
    § 25-2620(a)(5).
    15
    See Kremer v. Rural Community Ins. Co., 
    280 Neb. 591
    , 
    788 N.W.2d 538
         (2010).
    16
    See § 25-1902.
    17
    See State v. Fredrickson, supra note 6.
    18
    See
    id. 19
         See
    id. 20
         Id.
    21
    
         Id.
    22
    
         Id.
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    Prososki contends that Cinatl needed to file an appeal from
    the order denying the application to vacate the arbitrator’s
    award. According to Prososki, the right to challenge the valid-
    ity of an award through an application to vacate is an essen-
    tial legal right, because without a possible modification or
    correction, the only right to challenge an award is to apply
    for an order vacating the award. But this argument overlooks
    the unquestionable appealability of an order confirming the
    award 23 and the intent behind limiting the types of appealable
    arbitration orders. Appellate review of an arbitrator’s award
    is necessarily limited, because to allow full scrutiny of such
    awards would frustrate the purpose of having arbitration at
    all—the quick resolution of disputes and the avoidance of the
    expense and delay associated with litigation. Strong deference
    is due an arbitrative tribunal; when parties agree to arbitration,
    they agree to accept whatever reasonable uncertainties might
    arise from the process. 24
    Other state courts have determined that no appeal can be
    taken from an order denying an application to vacate and that
    such an order may be reviewed upon an appeal from an order
    confirming the award. 25 The Hawaii Supreme Court instructed
    that upon the denial of a motion to vacate, the unsuccess-
    ful movant’s recourse would then be a motion to confirm the
    award. 26 It explained that because the trial court has already
    reviewed the award and decided no grounds exist for vacat-
    ing it, a confirmation should follow. 27 The movant could then
    23
    See § 25-2620(a)(3).
    24
    Hartman v. City of Grand Island, 
    265 Neb. 433
    , 
    657 N.W.2d 641
    (2003).
    25
    See, e.g., Mid-Wilshire Associates v. O’Leary, 
    7 Cal. App. 4th 1450
    , 9 Cal.
    Rptr. 2d 862 (1992); Salud v. Financial Sec. Ins. Co., Ltd., 
    69 Haw. 427
    ,
    
    745 P.2d 290
    (1987); Nelson Paving Co., Inc. v. Hjelle, 
    207 N.W.2d 225
         (N.D. 1973). See, also, Ayers v. R.A. Murphy Co., 
    163 Ohio App. 3d 497
    ,
    
    839 N.E.2d 80
    (2005).
    26
    See Salud v. Financial Sec. Ins. Co., Ltd., supra note 25.
    27
    See
    id. - 489 -
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    perfect an appeal and obtain appellate review of the order con-
    firming the award. 28
    The purpose of confirming an arbitration award is to provide
    a judgment that can then be enforced through court proceed-
    ings. 29 “Upon the granting of an order confirming, modifying,
    or correcting an award, a judgment or decree shall be entered
    in conformity therewith and be enforced as any other judg-
    ment or decree.” 30 Ideally, confirmation should occur swiftly,
    although the court has 60 days from a party’s application to do
    so. 31 Thus, though not immediately appealable, an unsuccess-
    ful movant for judicial vacatur should not have to wait long to
    obtain appellate review.
    We conclude the January 2019 order denying the application
    to vacate the arbitrator’s award did not affect a substantial right
    of Cinatl. For the same reasons, we conclude the August order
    overruling the motion for new trial (which asked the court to
    vacate the January 2019 order and which, because there was
    no trial in the district court, we treat as a motion to reconsider)
    did not affect a substantial right and was not a final order.
    The rights at issue in an interlocutory determination denying
    judicial vacatur of an arbitration award can be adequately vin-
    dicated through an appeal of the order confirming the award.
    Because these prior orders were interlocutory, Cinatl properly
    waited until entry of an appealable order—the order confirm-
    ing the arbitration award—to challenge them.
    Failing to Vacate Award
    and Order Rehearing
    [12] Having determined that we have jurisdiction over
    the order denying Cinatl’s application to vacate, we consider
    28
    Id. 29
         Drummond v. State Farm Mut. Auto. Ins. Co., 
    280 Neb. 258
    , 
    785 N.W.2d 829
    (2010), citing Stewart Title Guar. Co. v. Tilden, 
    64 P.3d 739
    (Wyo.
    2003).
    30
    § 25-2615.
    31
    See § 25-2612.
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    Cinatl’s arguments that the district court erred by failing to
    vacate the award and order a rehearing. When arbitration has
    already occurred and a party seeks to vacate, modify, or con-
    firm an award, an extraordinary level of deference is given to
    the underlying award itself. 32
    The UAA sets forth grounds for vacating an award. Section
    25-2613 provides in relevant part:
    (a) Upon application of a party, the court shall vacate
    an award when:
    (1) The award was procured by corruption, fraud, or
    other undue means;
    (2) There was evident partiality by an arbitrator
    appointed as a neutral or corruption in any of the arbitra-
    tors or misconduct prejudicing the rights of any party;
    (3) The arbitrators exceeded their powers;
    (4) The arbitrators refused to postpone the hearing
    upon sufficient cause being shown therefor, refused to
    hear evidence material to the controversy, or otherwise
    so conducted the hearing, contrary to the provisions of
    section 25-2606, as to prejudice substantially the rights
    of a party;
    (5) There was no arbitration agreement and the issue
    was not adversely determined in proceedings under sec-
    tion 25-2603, and the party did not participate in the arbi-
    tration hearing without raising the objection; or
    (6) An arbitrator was subject to disqualification pur-
    suant to section 25-2604.01 and failed, upon receipt of
    timely demand, to disqualify himself or herself as required
    by such section.
    The fact that the relief was such that it could not or
    would not be granted by a court of law or equity is not
    ground for vacating or refusing to confirm the award.
    Of these enumerated grounds, Cinatl asserted only that the
    arbitrator exceeded his or her powers. He argues on appeal that
    32
    Seldin v. Estate of Silverman, 
    305 Neb. 185
    , 
    939 N.W.2d 768
    (2020).
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    the arbitrator’s decision should be vacated due to the absence
    of a finding on fraud, but that does not fit under his asserted
    ground for judicial vacatur.
    Cinatl contends that the arbitrator exceeded his author-
    ity by rendering a decision based upon defenses not raised
    in the pleadings. Cinatl argues that because Prososki never
    asserted any affirmative defenses, the arbitrator should have
    rejected suggestions that Cinatl’s cause of action may be time
    barred or barred by estoppel. Cinatl points to references in
    the arbitrator’s conclusions of law concerning delay, estoppel,
    and waiver.
    [13] The arbitrator’s decision determined that rescission was
    unavailable due to the nature of the relief requested and the
    changed circumstances. The purpose of rescission is to place
    the parties in a status quo, that is, return the parties to their
    position which existed before the rescinded contract; hence,
    rescission may be unavailable unless the parties can be placed
    substantially in the status quo. 33 The arbitrator remarked on
    the inability to return the parties to the status quo. Its deci-
    sion stated that “[d]uring the time he operated the practice,
    Cinatl’s ability to return [Dr.] Prososki to pre-sale status quo
    diminished with each passing day.” It further stated that Cinatl
    “took what was a going concern orthodontic practice and ren-
    dered it difficult if not impossible to return [Dr.] Prososki or
    his estate to status quo.” The arbitrator observed that “[t]he
    practice closed, leaving patients without their orthodontist and
    having to find another—in effect, vanishing the practice” and
    that Dr. Prososki had passed away. The arbitrator determined
    that “Cinatl simply cannot restore the status quo at the time of
    closing of the contract.” We find no merit to Cinatl’s argument
    that the arbitrator decided the matter based on unpled defenses.
    Accordingly, even if we were to assume that the arbitrator
    would have exceeded his power by deciding the matter based
    on unpled defenses, the court did not err in overruling Cinatl’s
    application to vacate and not ordering a rehearing.
    33
    Kracl v. Loseke, 
    236 Neb. 290
    , 
    461 N.W.2d 67
    (1990).
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    Confirmation of Award
    As mentioned, Cinatl appealed the court’s confirmation of
    the award. He contends that the court approved the arbitrator’s
    errors in failing to properly analyze or consider his fraud claim,
    failing to grant rescission, and failing to issue a just award.
    [14,15] But under the circumstances, the district court had
    no option other than to confirm the award. The UAA does not
    allow for the exercise of discretion by the court when a request
    for confirmation is made and there is no pending application
    for vacation, modification, or correction. 34 Under § 25-2612,
    “the court shall confirm an award, unless within the time limits
    hereinafter imposed grounds are urged for vacating or modify-
    ing or correcting the award, in which case the court shall pro-
    ceed as provided in sections 25-2613 [vacating an award] and
    25-2614 [modifying or correcting an award].” (Emphasis sup-
    plied.) Here, Cinatl sought to vacate the award, but the court
    denied his request. “If the application to vacate is denied and
    no motion to modify or correct the award is pending, the court
    shall confirm the award.” 35 As a general rule, the word “shall”
    in a statute is considered mandatory and is inconsistent with
    the idea of discretion. 36 Under the circumstances, the court
    properly confirmed the award.
    Failing to Review Record From
    Arbitration Hearing
    Cinatl argues that the court erred and violated his right to
    procedural due process by failing to review the record from the
    arbitration hearing, which he first offered during the hearing
    on Prososki’s motion to confirm the arbitrator’s award. But as
    discussed above, the court was obligated to confirm the award,
    because the court had already denied Cinatl’s application to
    vacate and there was no pending motion to modify or correct
    34
    See Garlock v. 3DS Properties, supra note 4.
    35
    § 25-2613(d) (emphasis supplied).
    36
    Glasson v. Board of Equal. of City of Omaha, 
    302 Neb. 869
    , 
    925 N.W.2d 672
    (2019).
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    the award. We find no error or due process violation by the
    district court.
    Failing to Rule Upon Admissibility
    of Exhibit 101
    Finally, Cinatl argues that the court erred by failing to rule
    upon the admissibility of an exhibit. During a hearing on the
    application to vacate, Cinatl offered exhibit 101, his affidavit,
    in which he swore that the statements in the application to
    vacate were true to the best of his knowledge. He represented
    during the hearing that his affidavit was “merely intended to be
    a verification of the allegations set forth in his application to
    vacate award.” Cinatl attached two documents to the affidavit:
    (1) a copy of his application to vacate the arbitrator’s award
    and (2) a copy of the arbitrator’s decision. Prososki objected
    to the exhibit.
    The court took the offer of exhibit 101 under advisement.
    The record contains no ruling on its admissibility. During a
    later hearing on the motion for new trial, Cinatl argued that
    the record was incomplete because it did not show whether the
    court received exhibit 101.
    [16] We find no reversible error by the court in failing to
    rule on the admissibility of the exhibit. In a civil case, the
    admission or exclusion of evidence is not reversible error
    unless it unfairly prejudiced a substantial right of the complain-
    ing party. 37 Before the court took the offer of the exhibit under
    advisement, it observed that the court file contained both the
    arbitrator’s decision and the application to vacate. At one time,
    every pleading of fact in a civil action had to be verified by the
    affidavit of the party, his or her agent, or attorney. 38 But such
    verification has not been required for half a century. 39 Because
    37
    In re Interest of Vladimir G., 
    306 Neb. 127
    , 
    944 N.W.2d 309
    (2020).
    38
    See, Neb. Rev. Stat. § 25-824 (1943); AVG Partners I v. Genesis Health
    Clubs, ante p. 47, 
    948 N.W.2d 212
    (2020).
    39
    See AVG Partners I v. Genesis Health Clubs, supra note 38, citing 1969
    Neb. Laws, L.B. 375.
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    the court’s record contained the documents attached to Cinatl’s
    affidavit and his verification of the statements in his applica-
    tion to vacate was unnecessary, he suffered no prejudice by the
    court’s failure to rule on the exhibit’s admissibility.
    CONCLUSION
    We have jurisdiction to consider Cinatl’s challenge to the
    denial of his application to vacate, but his challenge lacks
    merit. Because the district court did not err in confirming the
    arbitration award, we affirm its judgment.
    Affirmed.