Tracy Broadcasting Corp. v. Telemetrix, Inc.

alleged the district court erred for the same reasons she argues
in her appellate brief to this court. The trial court subsequently
overruled Kimberly’s motion, and she now alleges such denial
constituted an abuse of discretion. A motion for new trial is
addressed to the discretion of the trial court, whose decision
will be upheld in the absence of an abuse of that discretion.
Poppe v. Siefker, 274 Neb. 1, 735 N.W.2d 784 (2007). In light
of our analysis of Kimberly’s other assignments of error, we
conclude that the district court did not abuse its discretion in
overruling Kimberly’s motion for new trial. We find Kimberly’s
contention to be without merit.
V. CONCLUSION
Upon our de novo review of the record, we find that the
district court did not abuse its discretion in determining that
Finis’ disability pension was not marital property, in ordering
Kimberly to pay the jewelry store bill in its entirety, in cal-
culating Finis’ monthly income, or in overruling Kimberly’s
motion for new trial in all respects. Accordingly, we affirm.
A ffirmed .
T rAcy B roAdcAsTing corporATion , A neBrAskA
corporATion , Appellee , v . T elemeTrix , inc .,
A delAwAre corporATion , AppellAnT.
756 N.W.2d 742
Filed October 14, 2008. 	No. A-07-1327.
1. Statutes. Statutory interpretation presents a question of law.
2. Judgments: Appeal and Error. On questions of law, an appellate court is obli-
gated to reach a conclusion independent of the determination reached by the
court below.
3. Arbitration and Award: Final Orders. Denial of a motion to compel arbitration
is a final, appealable order under Nebraska law because it affects a substantial
right and is made in a special proceeding.
4. Arbitration and Award: Contracts. 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.
5. Constitutional Law: Waiver: Intent. A party has a constitutional right to adju-
dication of a justiciable dispute, and the law will not find a waiver of that right
112 	17 NebrASKA AppeLLATe repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

absent direct and explicit evidence of actual intent of a party’s agreement to
do so.
6. Federal Acts: Arbitration and Award: Courts. The Federal Arbitration Act
prohibits a court from compelling arbitration unless the court first satisfies itself
that the issue is referable to arbitration under such an arbitration clause.
7. Arbitration and Award: Contracts: Intent. Whether an issue is to be decided
by arbitration is a matter of the parties’ contractual intent.
8. Federal Acts: Arbitration and Award: Contracts. The Federal Arbitration Act
applies to a contract evidencing a transaction involving commerce.
9. Federal Acts: Arbitration and Award: Contracts: Words and Phrases. The
phrase “involving commerce” requires a broad interpretation in order to give
effect to the Federal Arbitration Act’s basic purpose, which is to put arbitration
provisions on the same footing as a contract’s other terms.
Appeal from the District Court for Scotts bluff County:
rAndAll l. lippsTreu, Judge. Affirmed.
richard A. Douglas, of Douglas, Kelly, Ostdiek & bartels,
p.C., for appellant.
Leland K. Kovarik, of Kovarik, ellison & Mathis, p.C.,
for appellee.
irwin , sievers, and cArlson, Judges.
sievers, Judge.
Tracy broadcasting Corporation (TbC) filed suit in the
Scotts bluff County District Court against Telemetrix, Inc.,
claiming that Telemetrix was indebted to it in the amount of
$467,000 together with interest at 10 percent per annum from
December 31, 2004. Telemetrix filed a motion to compel arbi-
tration, alleging that a series of promissory notes, supposedly
the basis for TbC’s lawsuit, contained a provision that all dis-
putes concerning such would be settled by submitting the same
to binding arbitration. The district court concluded that the
document underlying TbC’s claim did not contain an arbitra-
tion clause and therefore denied Telemetrix’s motion to compel
arbitration. Telemetrix now appeals that decision.
FACTUAL bACKGrOUND
Telemetrix was and is what could be called a “high-tech
startup.” It had a line of business involving pagers, where
people could receive messages through a pager they purchased,
TrACy brOADCASTING COrp. v. TeLeMeTrIx, INC. 	113
Cite as 17 Neb. App. 112

and it is undisputed that the associated data transmissions
crossed multiple state lines. Telemetrix’s second line of busi-
ness involved the attempt to develop hardware and software to
engage in nationwide utility meter reading and billing services.
The apparent centerpiece of this business was the develop-
ment of a wireless telemetry device known as the T3000, but
that device was never successfully implemented, manufac-
tured, or deployed. Instead, in August 2002, Telemetrix moved
away from the development of the T3000 to focus on provid-
ing services for the growing number of devices in service,
such as pagers and remote monitoring hardware. However, the
efforts concerning the T3000 required financing, a portion of
which was provided by loans from TbC and its sole stock-
holder and president, Michael J. Tracy. Tracy served as the
president of Telemetrix from early 2000 until November 2004.
Telemetrix needed venture capital for the development of the
T3000. TbC loaned money to Telemetrix and continued to do
so periodically.
The operative first amended complaint contains a listing
of 13 promissory notes designated by exhibit letter, date, and
amount. The total listed in this complaint for the promissory
notes is $347,201.36. eleven of the thirteen promissory notes
are attached to the operative complaint found in our record.
The terms of the notes show that the noteholder was given the
option to convert the note into Telemetrix stock. The complaint
recites that none of the notes have been so converted. each
note contains a paragraph providing, “All disputes concerning
this Note will be submitted to binding arbitration in Denver,
Colorado, in accordance with the expedited procedures of the
American Arbitration Association’s Commercial Arbitration
rules.” Although the complaint asserts the principal balance
due is $467,000, the total of the itemized promissory notes is
almost $120,000 less than the recovery sought by the lawsuit.
That discrepancy is perhaps explained by paragraph 5 of the
complaint, in which TbC asserts that shareholders of Telemetrix
entered into an agreement of November 30, 2004, in evidence
as exhibit 24, entitled “binding agreement between the under-
signed shareholders of Telemetrix, Inc.” (binding Agreement).
In the definitions portion of the binding Agreement, Tracy is
114 	17 NebrASKA AppeLLATe repOrTS

identified as “MT,” followed by another term, “MT and MT
entities owning shares,” which was then designated as “MT
ents.” The key provision of the binding Agreement is the
following paragraph found in section 1.4, entitled “Historic
Conversions,” which provides:
All MT ents interests, except his $467,000 loan note,
shall aggregate to no more than 42,594,678 common
shares. MT ents will be given a new note for $467,000
which will provide that the maturity date shall be for
twenty four (24) months from December 31, 2004 and
that if the loan note is not repaid by such date, at the
option of the holder it may be converted into equity at
$0.02 per share. The loan note shall bear simple interest
at 10% per annum from December 31, 2004.
Additionally, we note that in section 2.1, “Management Team
and employees,” the binding Agreement further provides:
MT ents agree that, other than in respect of theft or
fraud, all current claims against Nyssen, [TowerGate],
[Telemetrix] and its subsidiaries (other than the $467,000
note 	and 	the 	$55,850 	expenses 	due 	to 	MT 	from
[Telemetrix] as set out above in Section 1.4) are dropped
and all claims relating to actions prior to the date of this
agreement which may be considered in the future against
the above or becker ents are waived in full and will not
be prosecuted.
The binding Agreement makes no reference whatsoever to
submission of any dispute involving the parties thereto to
arbitration.
Telemetrix filed an answer to TbC’s first amended com-
plaint and alleged that exhibits A through M, the promissory
notes listed in TbC’s first amended complaint, require disputes
to be submitted to binding arbitration and that thus, the court
had no jurisdiction over the subject matter under Neb. Ct.
r. pldg. § 6-1112(b)(1). Telemetrix also set forth a number
of affirmative defenses, including that all indebtedness from
Telemetrix to Tracy has been paid, but at this point in the
proceedings, we need not discuss such defenses, because the
sole issue is whether this dispute must be submitted to bind-
ing arbitration.
TrACy brOADCASTING COrp. v. TeLeMeTrIx, INC. 	115
Cite as 17 Neb. App. 112

DISTrICT COUrT prOCeeDINGS
AND DeCISIONS
On August 3, 2007, the district court held a hearing on
Telemetrix’s motions to compel arbitration. We use the plural
because the decisions of the district court before us reveal
that there were actually two cases filed against Telemetrix:
the instant case brought by TbC, docketed in the trial court as
case No. CI07-37, and another suit brought by Tracy individ-
ually and docketed as case No. CI06-291. We mention this fact
although only the TbC versus Telemetrix case is before us,
because the trial court’s orders we discuss apply to both cases
and resolve the matter of arbitration in each case.
In any event, on August 23, 2007, the district court entered
its memorandum order with a comprehensive and concise anal-
ysis of the two cases and the applicable state and federal law
concerning arbitration. The court concluded that the Federal
Arbitration Act would preempt Nebraska’s Uniform Arbitration
Act if the notes and agreement upon which liability was alleg-
edly premised were “transactions involving commerce.” On the
other hand, the court cited our decision in Kramer v. Eagle Eye
Home Inspections, 14 Neb. App. 691, 716 N.W.2d 749 (2006),
for the proposition that if commerce was not involved, the
Nebraska act would not be preempted. We shall later discuss
our decision in Kramer in some detail, because what we said
in that opinion may well be misleading to the bench and bar.
In any event, the trial court decided that an evidentiary hear-
ing was needed to determine whether the instant case (as well
as the case brought by Tracy individually) had to be submitted
to arbitration. That evidentiary hearing was held October 11,
and after briefing, the district court entered its memorandum
order determining that the instant case brought by TbC was
not subject to arbitration and that the claims brought by Tracy
individually were subject to arbitration, although the latter
decision is not implicated in this appeal. It is important to note
that the record before us does not contain the pleadings or the
promissory notes upon which recovery was sought in the suit
that Tracy individually brought against Telemetrix, and as a
result, we do not know anything about what documents that
lawsuit was premised upon.
116 	17 NebrASKA AppeLLATe repOrTS

ASSIGNMeNTS OF errOr
Telemetrix claims, restated, that the district court erred in
denying its motion to compel arbitration; in not finding that the
Federal Arbitration Act, see 9 U.S.C. § 1 et seq. (2006), com-
pels arbitration; and in not determining initially that Nebraska’s
Uniform Arbitration Act, see Neb. rev. Stat. § 25-2601 et
seq. (reissue 1995 & Cum. Supp. 2006), was applicable and
required arbitration.
STANDArD OF reVIeW
[1,2] Statutory interpretation presents a question of law.
Billingsley v. BFM Liquor Mgmt., 264 Neb. 56, 645 N.W.2d
791 (2002). On questions of law, an appellate court is obligated
to reach a conclusion independent of the determination reached
by the court below. Id.
ANALySIS
Introduction.
[3] We begin by noting that denial of a motion to compel
arbitration is a final, appealable order under Nebraska law
because it affects a substantial right and is made in a special
proceeding. Webb v. American Employers Group, 268 Neb.
473, 684 N.W.2d 33 (2004). Next, we outline the fundamen-
tal disagreement between the parties, which we take from
their briefing.
Telemetrix contends that this lawsuit is to recover on prom-
issory notes, identified as exhibits A through M and attached
to the operative complaint, and that such notes contain a man-
datory arbitration clause. Telemetrix argues that such clauses
must be enforced by granting its motion to compel arbitration
and that thus, the trial court’s decision is in error. In contrast,
TbC contends that the lawsuit does not seek recovery on
the attached promissory notes, but, rather, upon the binding
Agreement, in which Telemetrix agreed to issue its promissory
note for $467,000 payable by December 31, 2006, to TbC.
Thus, the crucial question is which document(s) the lawsuit is
premised upon.
[4-7] Telemetrix asserts that “[w]hether a claim falls within
the scope of an arbitration agreement turns on the factual
TrACy brOADCASTING COrp. v. TeLeMeTrIx, INC. 	117
Cite as 17 Neb. App. 112

allegation in the complaint rather than the legal causes of
action asserted.” brief for appellant at 19. We disagree because,
as held in Cornhusker Internat. Trucks v. Thomas Built Buses,
263 Neb. 10, 637 N.W.2d 876 (2002), arbitration is purely a
matter of contract. The correct statement of applicable law is
as follows:
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.’” AT&T Technologies v. Communications
Workers, 475 U.S. 643, 648, 106 S. Ct. 1415, 89 L. ed.
2d 648 (1986). A party has a constitutional right to adju-
dication of a justiciable dispute, and the law will not find
a waiver of that right absent “‘direct and explicit evi-
dence of actual intent’” of a party’s agreement to do so.
McCarthy v. Azure, 22 F.3d 351, 358 n.9 (1st Cir. 1994).
The arbitration act prohibits a court from compelling arbi-
tration unless the court first satisfies itself that the issue
is referable to arbitration under such an arbitration clause.
9 U.S.C. § 3. Thus, whether an issue is to be decided by
arbitration is a matter of the parties’ contractual intent.
Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S.
52, 115 S. Ct. 1212, 131 L. ed. 2d 76 (1995).
Smith Barney, Inc. v. Painters Local Union No. 109, 254 Neb.
758, 762-63, 579 N.W.2d 518, 521-22 (1998).
Did District Court Err in Denying
Motion to Compel Arbitration?
Despite the need for and the importance of a contractual
agreement to arbitrate, this case requires close examination
of the operative complaint and the promissory notes attached
thereto, all of which unquestionably have an arbitration clause.
TbC’s present counsel suggests that the attachment of and
reference to this series of promissory notes from Telemetrix to
TbC are superfluous, given that such are not the basis for the
claimed recovery.
The operative complaint begins by alleging that TbC loaned
money to Telemetrix via a series of promissory notes and that
the principal balance due is $467,000. The complaint says that
118 	17 NebrASKA AppeLLATe repOrTS

this amount was allegedly “accumulated over a period of time
based on the promissory Notes attached hereto to [TbC].” The
complaint contains the list of 13 promissory notes, but the
only factual conclusion alleged after setting forth the list of
the 13 notes is that TbC has not converted any of such debt to
Telemetrix stock, which could have been done under the terms
of the notes. The complaint then suddenly “shifts gears” and
alleges the existence of the binding Agreement of November
30, 2004, and that such agreement provides for a $467,000
promissory note from Telemetrix to TbC. The operative com-
plaint alleges that this note was not delivered in accordance
with the agreement, nor has any part of the debt it evidenced
been paid. The complaint then alleges that such debt is due and
owing and prays for judgment accordingly. The complaint does
not allege that the binding Agreement or the $467,000 prom-
issory note provided for therein replaced, was substituted for,
or is the equivalent of the 13 promissory notes. And, as said
earlier, the sum of the 13 promissory notes is almost $120,000
less than $467,000.
Thus, we must admit that we do not comprehend why the
complaint even mentions the 13 promissory notes or attaches
the majority of them to the complaint. We have closely exam-
ined the binding Agreement and found no reference whatso-
ever to the 13 promissory notes referenced in the operative
complaint. Such fact leads to the inescapable conclusion that
the binding Agreement, at least insofar as its written terms
provide, was a separate and distinct obligation of Telemetrix
from the 13 promissory notes.
The evidence does not include an actual signed promissory
note, and Tracy admits that he never received such. However,
there is an unsigned “draft” of such a note in evidence in the
amount of $467,000 payable by Telemetrix to TbC dated
December 31, 2004, drawn for the signature of William W.
becker, chairman of the board of Telemetrix. This unsigned
note does not contain any language providing or even imply-
ing that the note is a replacement for any previous promissory
note(s), such as those attached to the complaint.
exactly how the binding Agreement and the draft promis-
sory note referenced above in the amount of $467,000 came
TrACy brOADCASTING COrp. v. TeLeMeTrIx, INC. 	119
Cite as 17 Neb. App. 112

into existence is illuminated by exhibit 27, a U.S. Securities
and exchange Commission (SeC) “Form 10-KSb,” for the
fiscal year ending December 31, 2004. This required filing
with the SeC provides public information as to the operation
and status of publicly held corporations, such as Telemetrix.
On page 17 of that document, a section entitled “ITeM 3.
LeGAL prOCeeDINGS” is found. In this section, Telemetrix
indicates that it filed suit in the U.S. District Court for the
Southern District of New york against Tracy, becker, and
Michael L. Glaser for compensatory damages and an injunc-
tion against those three individuals for breach of fiduciary
duty and against Tracy for conversion. The Form 10-KSb
further recounts the filing of suit in the U.S. District Court
for the District of Nebraska against two other organizations
(“TowerGate” and “Nyssen”), apparently investors in or lend-
ers to Telemetrix, alleging breach of fiduciary duty and other
claims. It is then recited that on December 10, Telemetrix,
Tracy, becker, and Glaser and other majority stockholders, as
well as TowerGate and Nyssen (defendants in the Nebraska
case referenced above), entered into a “binding agreement
dated as of November 30, 2004,” in which the parties agreed
to dismiss the above-described lawsuits and settle the disputes
between Telemetrix and TowerGate and Nyssen and between
Telemetrix and Tracy, becker, and Glaser. Certain provisions
not pertinent to this case that address the governance of the
corporation are then set forth. The Telemetrix Form 10-KSb
then provides as follows:
Under the agreement we agreed to issue a new promis-
sory note to . . . Tracy or his affiliate for a loan he made
to us of $467,000. The note will be due and payable in
24 months from December 31, 2004, and will bear simple
interest at 10% per annum from December 31, 2004, until
maturity. At maturity, . . . Tracy or his affiliate may con-
vert this note at his option into our common voting stock
at $.02 per share.
The Telemetrix Form 10-KSb filed with the SeC further pro-
vides that “we issued [TbC] a promissory note for $467,000
for the $467,000 loan made to us.”
120 	17 NebrASKA AppeLLATe repOrTS

It is important to note that there is no reference whatsoever
in this SeC filing that the $467,000 promissory note replaces,
substitutes for, or is the equivalent of the promissory notes
listed and referenced in the operative complaint in this lawsuit
as exhibits A through M. Nor was any other evidence to such
effect introduced by Telemetrix. The district court’s order with
respect to the instant lawsuit notes that arbitration is a matter
of consent and that a court may not thrust a party into arbitra-
tion who has not agreed to such. The district court finds that
the November 30, 2004, binding Agreement does not contain
an arbitration clause and that thus, the Telemetrix motion to
compel arbitration is denied.
Our review of the record shows that the instant lawsuit is
a suit upon the binding Agreement of November 30, 2004,
and that such agreement contains no provision whatsoever for
arbitration of disputes arising from that document. The scope
of this appeal is simply whether the trial court erred in deny-
ing the motion to compel arbitration—at this stage, the merits
of TbC’s claim for judgment in the amount of $467,000 plus
interest are not involved. There is no provision for arbitration
in the document upon which TbC premises its claim against
Telemetrix. Therefore, the trial court’s ruling denying arbitra-
tion is correct and is hereby affirmed.
Is Nebraska’s Uniform Arbitration Act Applicable?
Telemetrix argues that Nebraska’s Uniform Arbitration Act
applies. See § 25-2601 et seq. We disagree and take this oppor-
tunity to do some remedial work. We note that the trial court
discussed this court’s decision in Kramer v. Eagle Eye Home
Inspections, 14 Neb. App. 691, 716 N.W.2d 749 (2006). In
the Kramer opinion, we said: “However, Nebraska’s Uniform
Arbitration Act, discussed below, does not mention ‘commerce’
at all. Additionally, there is no authority cited that [Nebraska’s]
Uniform Arbitration Act is somehow preempted by the federal
Arbitration Act, necessitating a showing of an effect on inter-
state commerce.” 14 Neb. App. at 705, 716 N.W.2d at 763.
First, the above-quoted statement is hardly a model of clar-
ity. Moreover, to the extent that such statement says that the
Federal Arbitration Act does not preempt Nebraska’s Uniform
TrACy brOADCASTING COrp. v. TeLeMeTrIx, INC. 	121
Cite as 17 Neb. App. 112

Arbitration Act when “commerce” is involved in the transac-
tion at issue, the statement from Kramer is incorrect.
[8,9] In Webb v. American Employers Group, 268 Neb. 473,
478-79, 684 N.W.2d 33, 39 (2004), the court said:
The [Federal Arbitration Act (FAA)] applies to “a con-
tract evidencing a transaction involving commerce.” 9
U.S.C. § 2. “Commerce” as defined by the Act includes
“commerce among the several States.” 9 U.S.C[.] § 1.
The U.S. Supreme Court has given the FAA an expan-
sive scope by broadly construing the phrase “‘a contract
evidencing a transaction involving commerce.’” Allied-
Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 277, 115
S. Ct. 834, 130 L. ed. 2d 753 (1995) (cited in Kelley v.
Benchmark Homes, Inc., 250 Neb. 367, 550 N.W.2d 640
(1996)). The 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. Allied-Bruce Terminix Cos. v. Dobson, 513
U.S. at 277. The Court has further noted that “the word
‘involving,’ like ‘affecting,’ signals an intent to exercise
Congress’ commerce power to the full.” Id. The statutory
phrase “‘evidencing a transaction’” has been construed
by the Court to include transactions involving interstate
commerce even where the parties did not contemplate an
interstate commerce connection. Id.
(emphasis omitted.)
Therefore, it is clear that where the transaction involves
commerce, the federal act governs. Given the business that
Telemetrix was engaged in, there can be no real dispute that
the binding Agreement settling litigation in New york and
Nebraska, as well as defining the future management of a pub-
licly held company that is in the business of transmitting data
across state lines, as well as the Mexican and Canadian borders,
is a transaction “affecting commerce.” See Doctor’s Associates,
Inc. v. Casarotto, 517 U.S. 681, 116 S. Ct. 1652, 134 L. ed.
2d 902 (1996) (Montana arbitration statute was preempted by
Federal Arbitration Act because involved transaction affected
interstate commerce). both counsel at oral argument admitted
122 	17 NebrASKA AppeLLATe repOrTS

that commerce is affected. The Federal Arbitration Act would
preempt Nebraska’s Uniform Arbitration Act if there were an
arbitration clause in the binding Agreement. It is appropriate
that we take note of the fact that the trial judge’s opinion in the
instant case discerned the flaw in the Kramer opinion.
CONCLUSION
because TbC’s lawsuit is premised upon a contract, the
binding Agreement of November 30, 2004, and such con-
tract does not contain an agreement to arbitrate disputes,
the trial court properly denied Telemetrix’s motion to com-
pel arbitration.
A ffirmed .
sTATe of neBrAskA, Appellee , v .
J esse lAnkford , AppellAnT.
756 N.W.2d 739
Filed October 14, 2008. 	No. A-08-460.
1. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision of the court below.
2. Sentences: Appeal and Error. Whether an appellate court is reviewing a sen-
tence for its leniency or its excessiveness, a sentence imposed by a district court
that is within the statutorily prescribed limits will not be disturbed on appeal
unless there appears to be an abuse of the trial court’s discretion.
3. Statutes: Legislature: Intent. In construing a statute, a court must determine
and give effect to the purpose and intent of the Legislature as ascertained from
the entire language of the statute considered in its plain, ordinary, and popu-
lar sense.
4. Statutes: Appeal and Error. Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and unambiguous.
5. Administrative Law: Licenses and Permits: Revocation: Time. A license revo-
cation pursuant to Neb. rev. Stat. § 60-6,197.03 (Cum. Supp. 2006) begins at the
time appointed in the court’s order.
6. Criminal Law: Statutes: Legislature: Intent. Although the rule of lenity
requires a court to resolve ambiguities in a penal code in the defendant’s favor,
the touchstone of the rule of lenity is statutory ambiguity, and where the legisla-
tive language is clear, a court may not manufacture ambiguity in order to defeat
that intent.
STATe v. LANKFOrD 	123
Cite as 17 Neb. App. 123