Koricic v. Beverly Enters. - Neb.

of the court’s discretion. We reject Epp’s final assignment
of error.
CONCLUSION
Having rejected each of Epp’s assignments of error, we
affirm Epp’s convictions and sentences for robbery and posses-
sion of a deadly weapon by a felon.
A ffirmed.
frAnk koricic , As TrusTee for The heirs And
nexT of kin of mAndA BAker , AppellAnT, v.
Beverly enTerprises - neBrAskA, inc.,
formerly doing Business As Beverly
hAllmArk , eT Al ., Appellees.
773 N.W.2d 145
Filed October 16, 2009. 	No. S-08-1167.
1. Principal and Agent. Generally, whether an agency relationship exists presents a
factual question.
2. ____. The scope of an agent’s authority is a question of fact.
3. Judgments: Appeal and Error. In a bench trial of a law action, the trial court’s
factual findings have the effect of a jury verdict and will not be disturbed on
appeal unless clearly wrong.
4. Principal and Agent: Words and Phrases. An “agent” is a person authorized by
the principal to act on the principal’s behalf and under the principal’s control.
5. Agency. For an agency relationship to arise, the principal manifests assent to the
agent that the agent will act on the principal’s behalf and subject to the principal’s
control and the agent manifests assent or otherwise consents so to act.
6. Agency: Intent. An agency relationship may be implied from the words and
conduct of the parties and the circumstances of the case evidencing an intention
to create the relationship irrespective of the words or terminology used by the
parties to characterize or describe their relationship.
7. Principal and Agent. Actual authority is authority that the principal expressly
grants to the agent or authority to which the principal consents.
8. ____. A subcategory of actual authority is implied authority, which courts typi-
cally use to denote actual authority either to (1) do what is necessary to accom-
plish the agent’s express responsibilities or (2) act in a manner that the agent rea-
sonably believes the principal wishes the agent to act, in light of the principal’s
objectives and manifestations.
9. ____. When a principal delegates authority to an agent to accomplish a task
without specific directions, the grant of authority includes the agent’s ability to
kOrICIC v. bEvErLy ENTErS. - NEb. 	713
Cite as 278 Neb. 713
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

exercise his or her discretion and make reasonable determinations concerning the
details of how the agent will exercise that authority.
10. ____. Apparent authority is authority that is conferred when the principal affirma-
tively, intentionally, or by lack of ordinary care causes third persons to act upon
an agent’s apparent authority.
11. Principal and Agent: Words and Phrases. Apparent authority gives an agent the
power to affect the principal’s legal relationships with third parties.
12. Principal and Agent: Proof. Apparent authority for which a principal may be
liable exists only when the third party’s belief is traceable to the principal’s mani-
festation and cannot be established by the agent’s acts, declarations, or conduct.
13. Principal and Agent. For apparent authority to exist, the principal must act in
a way that induces a reasonable third person to believe that another person has
authority to act for him or her.
14. ____. Whether an agent has apparent authority to bind the principal is a factual
question determined from all the circumstances of the transaction.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
mArlon A. polk, Judge. reversed and remanded for further
proceedings.
brian G. brooks, P.L.L.C., richard F. Hitz, of Hauptman,
O’brien, Wolf & Lathrop, P.C., and S. Drake Martin, of Nix,
Patterson & roach, L.L.P., for appellant.
rodney M. Confer and Jeanelle r. Lust, of knudsen,
berkheimer, richardson & Endacott, L.L.P., for appellees.
heAvicAn, 	c.J., 	WrighT, 	connolly, 	gerrArd, 	sTephAn,
mccormAck, and miller-lermAn, JJ.
connolly, J.
The appellant, Frank koricic (Frank), lived with his elderly
mother, Manda baker (Manda), and assisted her in her daily
affairs. When her health declined, she was admitted to beverly
Hallmark, a nursing home in Omaha, Nebraska. At Manda’s
admission, Frank signed several documents for her. One of the
documents was an optional arbitration agreement.
This appeal presents the issue whether Frank had author-
ity to act as Manda’s agent and to enter into the arbitration
agreement for her. The district court determined that because
Frank had actual authority to enter into the arbitration agree-
ment, the agreement bound her estate. Although we agree
that Frank had authority to sign the mandatory paperwork for
714 	278 NEbrASkA rEPOrTS

admission, we conclude that Frank did not have authority to
sign the arbitration agreement because it was not a condition
of admission. We reverse the district court’s order dismissing
Frank’s complaint.
born in what is now Croatia in 1912, Manda immigrated
to Omaha in 1958. She had a limited ability to read, speak, or
understand English. Frank immigrated to Omaha in 1966 and
lived with Manda for most of the following 40 years.
As Manda aged, Frank assisted her in managing her affairs.
In 1998, when Manda’s health started declining, Frank began
signing medical authorizations for her. He testified that he
signed only medical documents at the hospital and that Manda
signed all other documents. Frank stated that he would explain
documents to Manda and that if she wanted them signed, she
would have Frank sign for her. Frank testified that he never
signed anything without discussing it with Manda and that he
never signed anything she did not agree with. Frank described
their relationship as a collaborative effort, with him serving as
Manda’s advisor and interpreter. While he might offer advice,
he took only the actions Manda directed him to take. Manda
was never declared incompetent, and she never granted Frank
power of attorney over her affairs.
In November 2005, Frank took Manda to beverly Hallmark.
It is undisputed that Manda was competent when she was admit-
ted to beverly Hallmark. Frank accompanied Manda during her
admission, and after Frank placed her in her room, an employee
of beverly Hallmark took Frank to the office where he signed
the paperwork for her admission. Manda was not present when
Frank signed the admission papers, and Frank never discussed
the content of the admission paperwork with her. Frank claimed
that he did not read any of the paperwork and that the employee
did not explain any of the documents.
One of the papers Frank signed was a “resident and Facility
Arbitration Agreement” that beverly Hallmark presented to all
residents upon admission. At the top of the agreement, it states
that it is not a condition of admission. The agreement provides
that “any and all claims, disputes, and controversies . . . aris-
ing out of, or in connection with, or relating in any way to the
Admission Agreement or any service or health care provided
kOrICIC v. bEvErLy ENTErS. - NEb. 	715
Cite as 278 Neb. 713

by the Facility to the resident shall be resolved exclusively by
binding arbitration . . . .”
before Manda died in September 2007, she allegedly sus-
tained injuries and pain and suffering because of beverly
Hallmark’s negligence. Frank, as Manda’s next of kin and
trustee of her estate, filed suit against beverly Enterprises -
Nebraska, Inc., formerly doing business as beverly Hallmark;
beverly Health and rehabilitation Services, Inc.; and beverly
Enterprises, Inc. (collectively beverly Hallmark), alleging neg-
ligence, breach of contract, and breach of fiduciary duty.
beverly Hallmark moved to dismiss the case and to compel
arbitration under the arbitration agreement. Frank argued that
beverly Hallmark could not enforce the arbitration agreement
against Manda’s estate because Frank, not Manda, had signed
the arbitration agreement.
The district court concluded that the arbitration agreement
was valid and enforceable against Manda’s estate. because
Manda had authorized Frank to sign medical authorizations
for her as early as 1998, the court concluded that Frank had
actual authority to sign the arbitration agreement. And because
all allegations, if true, would fall under the arbitration agree-
ment, the district court dismissed the case without prejudice
to arbitration.
Frank asserts that the trial court erred in determining (1) that
Frank had authority as Manda’s agent to sign the arbitration
agreement for her and (2) that the agreement bound her estate.
[1-3] Generally, whether an agency relationship exists pre-
sents a factual question.1 The scope of an agent’s authority also
is a question of fact.2 In a bench trial of a law action, the trial
court’s factual findings have the effect of a jury verdict and
will not be disturbed on appeal unless clearly wrong.3
1 See, Broad v. Randy Bauer Ins. Agency, 275 Neb. 788, 749 N.W.2d 478
(2008); Metropolitan Life Ins. Co. v. SID No. 222, 204 Neb. 350, 281
N.W.2d 922 (1979).
2 State ex rel. Medlin v. Little, 270 Neb. 414, 703 N.W.2d 593 (2005).
3 Albert v. Heritage Admin. Servs., 277 Neb. 404, 763 N.W.2d 373 (2009);
Aon Consulting v. Midlands Fin. Benefits, 275 Neb. 642, 748 N.W.2d 626
(2008).
716 	278 NEbrASkA rEPOrTS

because arbitration is purely a matter of contract, we first
determine whether an agreement to arbitrate exists under basic
contract principles.4 Here, because Manda did not sign the arbi-
tration agreement, we focus on whether Frank acted as Manda’s
agent with authority to enter into the arbitration agreement. So
we begin with a discussion of agency law. beverly Hallmark
bears the burden of proving Frank’s authority and that his
acts were within the scope of his authority.5 beverly Hallmark
claims that Frank, as an agent, had actual authority to bind
Manda to the arbitration agreement or, in the alternative, that
he had apparent authority.
[4-6] An “agent” is a person authorized by the principal to
act on the principal’s behalf and under the principal’s control.6
For an agency relationship to arise, the principal “manifests
assent” to the agent that the agent will “act on the principal’s
behalf and subject to the principal’s control.”7 And the agent
“manifests assent or otherwise consents so to act.”8 An agency
relationship may be implied from the words and conduct of
the parties and the circumstances of the case evidencing an
intention to create the relationship irrespective of the words
or terminology used by the parties to characterize or describe
their relationship.9
[7-9] Actual authority is authority that the principal expressly
grants to the agent or authority to which the principal con-
sents.10 A subcategory of actual authority is implied authority,
which courts typically use to denote actual authority either
to (1) do what is necessary to accomplish the agent’s express
responsibilities or (2) act in a manner that the agent reasonably
4 Kelley v. Benchmark Homes, Inc., 250 Neb. 367, 550 N.W.2d 640 (1996),
disapproved on other grounds, Webb v. American Employers Group, 268
Neb. 473, 684 N.W.2d 33 (2004).
5 See Western Fertilizer v. BRG, 228 Neb. 776, 424 N.W.2d 588 (1988).
6 McCurry v. School Dist. of Valley, 242 Neb. 504, 496 N.W.2d 433 (1993).
7 restatement (Third) of Agency § 1.01 at 17 (2006).
8 Id.
9 See McCurry, supra note 6. See, also, State ex rel. Medlin, supra note 2.
10 restatement, supra note 7, § 2.01, comment c.
kOrICIC v. bEvErLy ENTErS. - NEb. 	717
Cite as 278 Neb. 713

believes the principal wishes the agent to act, in light of the
principal’s objectives and manifestations.11 When a principal
delegates authority to an agent to accomplish a task without
specific directions, the grant of authority includes the agent’s
ability to exercise his or her discretion and make reasonable
determinations concerning the details of how the agent will
exercise that authority.12
Frank signed medical documents for Manda under her
instructions for 10 years. Frank and Manda discussed her
health care treatment options, and she repeatedly consented to
his signing for her. Frank testified that Manda expressly gave
him permission to sign medical documents for her but that he
never signed for her without her express permission. He testi-
fied that “when she was kind of more sick I was signing, you
know, all the time in the hospital.” Manda never objected to
Frank’s signing medical documents for her.
The record shows that in November 2005, Frank and Manda
went to beverly Hallmark to admit her to the nursing home.
During his deposition, Frank recounted their conversation,
stating that Manda understood she was being admitted to the
nursing home and that Frank would take care of the necessary
admission documents:
[beverly Hallmark’s counsel:] before you got to the
nursing home, had you talked with [Manda] about the fact
that you were going to take her there?
[Frank:] Yeah . . . .
. . . .
Q. And she understood that you were going to meet
with the office people?
A. What everybody, whatever was going to be done,
she trusts me. And I went over there and done the best
I can.
Q. you talked to her about that before you got there
that day?
A. Right.
11 Id., comment b.
12 Id., § 2.02.
718 	278 NEbrASkA rEPOrTS

Q. She understood that, you know, whatever needed to
be done in the office, you were going to do it for her?
A. Right.
Q. you talked about that with her?
A. Together, again together, we agree together, we
do it together.
based on Frank’s testimony, Manda authorized Frank to sign the
paperwork required for her admission to beverly Hallmark.
but the arbitration agreement is another matter—beverly
Hallmark did not require it as a condition of Manda’s admis-
sion. The agreement was optional and was not required for
Manda to remain at the facility. We agree with the district
court’s finding that an agency relationship existed between
Manda and Frank. We also agree that as Manda’s agent, Manda
authorized Frank to sign the required admission papers. but we
conclude that his actual authority did not extend to signing an
arbitration agreement that would waive Manda’s right of access
to the courts and to trial by jury. The district court’s finding
that Frank had actual authority to sign the arbitration agree-
ment was clearly erroneous.
Having concluded that Frank’s actual authority did not extend
to signing the arbitration agreement, we now turn to beverly
Hallmark’s contention that Frank had apparent authority to
bind Manda to the arbitration agreement. beverly Hallmark
claims that because Manda allowed Frank to leave her room
with an employee of beverly Hallmark to sign the required
admission papers, it reasonably believed that Frank had author-
ity to sign the arbitration agreement.
[10-14] Apparent authority is authority that is conferred
when the principal affirmatively, intentionally, or by lack of
ordinary care causes third persons to act upon an agent’s
apparent authority.13 Apparent authority gives an agent the
power to affect the principal’s legal relationships with third
parties. The power arises from and is limited to the principal’s
manifestations to those third parties about the relationships.14
13 See Franksen v. Crossroads Joint Venture, 245 Neb. 863, 515 N.W.2d 794
(1994).
14 See State ex rel. Medlin, supra note 2, citing Franksen, supra note 13.
kOrICIC v. bEvErLy ENTErS. - NEb. 	719
Cite as 278 Neb. 713

Stated another way, apparent authority for which a principle
may be liable exists only when the third party’s belief is trace-
able to the principal’s manifestation and cannot be established
by the agent’s acts, declarations, or conduct.15 Manifestations
include explicit statements the principal makes to a third party
or statements made by others concerning an actor’s author-
ity that reach the third party and the third party can trace to
the principal.16 For apparent authority to exist, the principal
must act in a way that induces a reasonable third person to
believe that another person has authority to act for him or her.17
Whether an agent has apparent authority to bind the principal
is a factual question determined from all the circumstances of
the transaction.18 Whether beverly Hallmark can trace Frank’s
alleged authority to sign the arbitration agreement to Manda’s
actions and whether beverly Hallmark reasonably relied upon
Frank’s actions in signing the arbitration agreement present
factual questions.
Here, Manda and Frank discussed her admission before she
reached the facility. Frank left with an employee of beverly
Hallmark to sign the admission papers while Manda remained
in her room. No evidence suggests that (1) Manda knew Frank
would be asked to sign an arbitration agreement, (2) Manda
represented to a beverly Hallmark employee that she autho-
rized Frank to sign the arbitration agreement, or (3) she later
ratified the agreement. And we do not believe that the beverly
Hallmark employee could reasonably believe that Frank had
authority to sign the arbitration agreement under these circum-
stances. beverly Hallmark knew of Manda’s limited ability
to understand these documents, or she would not have been
asking her son Frank to sign them for her. Nothing in the
15 restatement, supra note 7, § 2.03. See, also, State ex rel. Medlin, supra
note 2; restatement, supra note 7, § 3.03, comment b.
16 restatement, supra note 7, § 2.03, comment c. See, also, restatement,
supra note 7, § 1.03.
17 See id. See, also, Nebraska Tractor & Equipment Co. v. Great Lakes Pipe
Line Co., 156 Neb. 366, 56 N.W.2d 288 (1953); First Nat. Bank of Omaha
v. Acceptance Ins. Cos., 12 Neb. App. 353, 675 N.W.2d 689 (2004).
18 See Western Fertilizer, supra note 5.
720 	278 NEbrASkA rEPOrTS

record suggests that a reasonable person should have expected
an arbitration agreement to be included with admission docu-
ments for a nursing home. So beverly Hallmark was not justi-
fied in relying solely on Manda’s authorization of Frank to
sign admission papers as apparent authority to bind her to an
arbitration agreement. We conclude that these circumstances
preclude beverly Hallmark from relying on the doctrine of
apparent authority.
We reverse the trial court’s order to dismiss Frank’s com-
plaint and remand the cause for further proceedings.
reversed And remAnded for
furTher proceedings.
STATE Ex rEL. COUNSEL FOr DIS. v. CArbULLIDO 	721
Cite as 278 Neb. 721
sTATe of neBrAskA ex rel . counsel for discipline
of The neBrAskA supreme courT, relATor , v.
kimBerly k. cArBullido, respondenT.
773 N.W.2d 141
Filed October 16, 2009. 	No. S-08-1203.
1. Disciplinary Proceedings: Appeal and Error. A proceeding to discipline an
attorney is a trial de novo on the record.
2. Disciplinary Proceedings. An attorney against whom formal charges have been
filed is subject to a judgment on the pleadings if he or she fails to answer
those charges.
3. ____. The Nebraska Supreme Court evaluates each attorney discipline case in
light of its particular facts and circumstances.
4. ____. To determine whether and to what extent discipline should be imposed in
an attorney discipline proceeding, the Nebraska Supreme Court considers the fol-
lowing factors: (1) the nature of the offense, (2) the need for deterring others, (3)
the maintenance of the reputation of the bar as a whole, (4) the protection of the
public, (5) the attitude of the offender generally, and (6) the offender’s present or
future fitness to continue in the practice of law.
5. ____. For purposes of determining the proper discipline of an attorney, the
Nebraska Supreme Court considers the attorney’s acts both underlying the events
of the case and throughout the proceeding as well as all aggravating or mitigat-
ing factors.
6. ____. Cumulative acts of attorney misconduct are distinguishable from isolated
incidents, and they justify more serious sanctions.
7. ____. An attorney’s failure to respond to inquiries and requests for information
from the Counsel for Discipline is an important matter and is a threat to the credi-
bility of attorney disciplinary proceedings.