EAD Engr. v. Purac America

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
EAD ENGR. v. PURAC AMERICA
Cite as 34 Neb. App. 24
EAD Engineering, Inc., appellant, v.
Purac America Inc., doing business
as Corbion, appellee.
___ N.W.3d ___
Filed January 27, 2026. 	No. A-25-080.
1. Contracts. The meaning of a contract is a question of law.
2. Arbitration and Award. Arbitrability presents a question of law.
3. Judgments: Appeal and Error. When reviewing questions of law,
an appellate court resolves the questions independently of the lower
court’s conclusions.
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 or she has not agreed to submit.
5. Constitutional Law: Waiver: Intent. A party has a constitutional right
to adjudication of a justiciable dispute, and the law will not find a
waiver of that right absent direct and explicit evidence of actual intent
of a party’s agreement to do so.
6. Assignments: Words and Phrases. An assignment is the transfer
of some identifiable property, claim, or right from the assignor to
the assignee.
7. Contracts: Assignments. An assignee stands in the shoes of the
assignor and is bound by the terms of the contract to the same extent as
the assignor.
8. Appeal and Error. In order to preserve each party’s right to meaningful
appellate review of issues presented to but not decided by the district
court, an appellate court will decline to decide such issues in the first
instance. Instead, it will remand to the district court with directions to
consider and decide these alternative issues.
Appeal from the District Court for Washington County:
Zachary L. Blackman, Judge. Reversed and remanded for
further proceedings.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:41 AM CDT

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
EAD ENGR. v. PURAC AMERICA
Cite as 34 Neb. App. 24
Todd W. Weidemann, Bruce A. Smith, and Lexi A. Weisbeck,
of Woods Aitken, L.L.P., for appellant.
Julie E. Parisi, Christopher Tillery, and Gregory S. Gerstner,
pro hac vice, and Timothy J. Davis of Seigfreid Bingham, P.C.,
and Michael T. Gibbons, of Woodke & Gibbons, P.C., L.L.O.,
for appellee.
Riedmann, Chief Judge, and Moore and Bishop, Judges.
Riedmann, Chief Judge.
INTRODUCTION
EAD Engineering, Inc. (Engineering), appeals from the
order of the district court for Washington County compelling
Engineering to arbitrate with Purac America Inc., doing busi-
ness as Corbion (Corbion). For the reasons outlined below, we
reverse the order of the district court and remand the cause for
further proceedings as directed in this opinion.
BACKGROUND
In October 2020, Corbion and Engineering entered into an
“Engineering Services Agreement” (ESA). Engineering is a
subsidiary of Engineering Automation & Design, Inc. EAD
Constructors, Inc. (Constructors) is also a subsidiary. Stephen
Lichter is the chief executive officer of Engineering Automation
& Design, Engineering, and Constructors.
Lichter signed the ESA on behalf of Engineering. The ESA
specified that in the agreement, Engineering was referred to
as “Service Provider,” and that both Corbion and “Service
Provider” were referred to in the agreement separately as a
“Party” and collectively as the “Parties.” It contained a provi-
sion providing for judicial determination of disputes. It stated
that the
[a]greement and any dispute arising hereunder will be
interpreted and governed by the Laws of the state of the
State of Kansas, U.S.A., excluding its conflict of law
rules. The state and federal courts located in Johnson

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
EAD ENGR. v. PURAC AMERICA
Cite as 34 Neb. App. 24
County, Kansas will have exclusive jurisdiction for any
litigation or other proceeding arising out of or relating to
the [a]greement.
On May 28, 2021, Corbion and Constructors signed an
“Engineering, 	Procurement 	and 	Construction 	Agreement”
(EPCA). The EPCA did not define the parties to the agree-
ment, but stated it was entered into between “Purac America,
Inc., (‘Owner’)” and “EAD Constructors Inc. (‘Contractor’).”
Despite “Parties” being an undefined term, the second para-
graph of the scope of work provision in the EPCA provided:
The Parties acknowledge that, prior to the execution of
this Agreement, the Parties entered into a separate [ESA],
dated October 13, 2020[,] between . . . Corbion and . . .
Engineering . . . , which pertained to many of the engi-
neering services to be provided for the Project . . . . For
purposes of the present Agreement, and upon the execu-
tion of this Agreement, it is understood and agreed that
all services, rights and obligations by and between the
Parties under the [ESA] are hereby incorporated herein
by this reference and merged into the present Agreement
so that the present Agreement is understood to provide for
all services to be provided and furnished by Contractor as
one [EPCA].
The EPCA provided that the method of dispute resolution
would be binding arbitration. Another provision in the EPCA
recognized that “[t]he Parties acknowledge that the dispute
provisions between the two agreements conflict. The Parties
agree that the dispute provisions in this EPC Agreement and
the General Conditions shall govern and control.” Lichter
signed the EPCA on behalf of Constructors. There was no
signature line for Engineering.
That same day, Engineering, as assignor, and Constructors,
as assignee, entered into an “Assignment and Assumption”
agreement 	(the 	Assignment). 	The 	Assignment 	set 	forth
Engineering’s 	and 	Constructor’s 	respective 	obligations. 	It
stated in part:

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
EAD ENGR. v. PURAC AMERICA
Cite as 34 Neb. App. 24
(1) Assignment. Effective as of the date of the EPC[A],
Assignor hereby grants, conveys, assigns, and transfers
to Assignee, its successors and assigns, any and all right,
title and interest of Assignor, in and to the [ESA].
(2) Acceptance and Assumption. Effective as of the
date of the EPC[A], Assignee hereby accepts and agrees
to perform all of the terms, covenants and conditions of
the [ESA] required to be performed by Assignor from and
after the date of the EPC[A].
Lichter signed the Assignment agreement twice—once on
behalf of Engineering, and again on behalf of Constructors.
In 2023, a dispute arose between Corbion and Constructors.
Pursuant to the EPCA, Corbion filed a request for medi-
ation 	and 	demand 	for 	arbitration 	against 	Constructors.
Following an unsuccessful mediation between the two, the
issue of joining Engineering was raised. In an amended
complaint and application to stay arbitration proceedings
filed by Engineering in January 2024, Engineering alleged
that Corbion served Constructors with a demand for arbitra-
tion and later served Engineering with a similar demand. It
sought a stay of the arbitration proceedings as to Engineering
because Engineering was not a party or signatory to the
EPCA. In September, Corbion filed an application to compel
Engineering to arbitrate on the basis that a valid arbitra-
tion agreement existed between them in the EPCA and that
Engineering had refused to arbitrate. Corbion asserted that the
ESA between Corbion and Engineering was incorporated into
the EPCA and that the dispute resolution provisions in the
EPCA controlled.
Engineering 	resisted 	the 	application 	to 	arbitrate, 	again
asserting it was neither a signatory nor a party to the EPCA.
The district court found that a valid arbitration agreement
existed 	between 	Corbion 	and 	Engineering. 	It 	determined
that Engineering had assigned its rights under the ESA to
Constructors, 	which 	signed 	the 	EPCA, 	which 	incorpo-
rated the ESA into it. It found the EPCA was an “umbrella

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
EAD ENGR. v. PURAC AMERICA
Cite as 34 Neb. App. 24
agreement” that bound Engineering to its arbitration provi-
sions. Engineering appeals.
ASSIGNMENTS OF ERROR
Engineering assigns, reordered and restated, that the district
court erred in (1) finding a valid arbitration agreement existed
between Corbion and Engineering, (2) compelling arbitration,
and (3) failing to interpret and enforce the clear and unambigu-
ous terms of the ESA that expressly required judicial resolu-
tion of disputes between Corbion and Engineering.
STANDARD OF REVIEW
[1-3] The meaning of a contract is a question of law. See
Frohberg Elec. Co. v. Grossenburg Implement, 297 Neb. 356,
900 N.W.2d 32 (2017). Likewise, arbitrability presents a ques-
tion of law. Id. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s
conclusions. Id.
ANALYSIS
Existence of Arbitration Agreement.
Engineering assigns that the district court erred in finding
that a valid arbitration agreement existed between Corbion and
Engineering. The district court found that Engineering was
bound to the EPCA’s arbitration agreement through a theory of
incorporation by reference. We disagree with this finding.
[4,5] Arbitration is a matter of contract, and a party cannot
be required to submit to arbitration any dispute which he or
she has not agreed so to submit. Cullinane v. Beverly Enters.
- Neb., 300 Neb. 210, 912 N.W.2d 774 (2018). A party has
a constitutional right to adjudication of a justiciable dispute,
and the law will not find a waiver of that right absent direct
and explicit evidence of actual intent of a party’s agreement to
do so. Id. We therefore must first determine whether, through
the contract documents, Engineering agreed to submit dis-
putes to arbitration. Because this issue concerns the formation
or existence of an arbitration agreement and not its validity,

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
EAD ENGR. v. PURAC AMERICA
Cite as 34 Neb. App. 24
enforceability, or scope, we apply state law. See Frohberg
Elec. Co., supra.
The 	ESA provided 	for 	judicial 	resolution 	of 	disputes
between Corbion and Engineering. The EPCA provided for
disputes to be resolved via arbitration. The EPCA incorpo-
rated by reference the ESA and acknowledged that the dis-
pute provisions in the ESA and EPCA conflicted but that the
dispute resolution provided for in the EPCA would govern.
Engineering, however, did not sign the EPCA, nor does the
introductory paragraph of the EPCA include Engineering as
an entity executing the agreement. Therefore, it did not con-
tractually agree to be bound to the arbitration agreement in the
EPCA. However, a nonsignatory to an agreement to arbitrate
may still be bound under certain circumstances.
Corbion, a signatory, is attempting to bind Engineering,
a nonsignatory, to the arbitration provisions of the EPCA.
“According to principles of contract and agency law, arbitra-
tion agreements may be enforced by or against nonsignatories
under any of six theories: (1) incorporation by reference; (2)
assumption; (3) agency; (4) alter ego; (5) equitable estop-
pel; and (6) third party beneficiary.” 21 Richard A. Lord, A
Treatise on the Law of Contracts by Samuel Williston § 57:19
at 195 (4th ed. 2017).
Incorporation by Reference.
The district court found that Engineering was bound to the
arbitration provisions in the EPCA through a theory of incor-
poration by reference. It noted that arbitration agreements are
enforced in Nebraska against nonsignatory parties in situa-
tions where an “umbrella agreement” includes an arbitration
obligation that covers a separate, but related, agreement. It
found the ESA was a separate but related agreement that had
been incorporated by reference into the EPCA, making the
EPCA an umbrella agreement. Engineering assigned its rights
to Constructors, which signed the EPCA, which acknowl-
edged the dispute resolutions in the ESA and EPCA were in

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
EAD ENGR. v. PURAC AMERICA
Cite as 34 Neb. App. 24
dispute but that the EPCA would govern. Thus, the district
court concluded Engineering was bound by the dispute resolu-
tion provisions in the EPCA.
We disagree with the finding that the EPCA is an umbrella
agreement that binds Engineering. The district court found
that the EPCA was an umbrella agreement because the ESA
was incorporated into it by reference. “Under the incorpora-
tion by reference theory, a nonsignatory may compel arbitra-
tion against a party to an arbitration agreement when that
party has entered into a separate contractual relation with
the nonsignatory which incorporates the existing arbitration
clause.” Id. at 197. The incorporation by reference theory
involves a party to a later agreement being bound by an ear-
lier arbitration agreement, if that earlier agreement is incor-
porated by reference into the later agreement. That is not the
situation before us.
In this case, the earlier agreement was the ESA, in which
Corbion and Engineering agreed to judicial dispute resolution.
The ESA was incorporated by reference into the EPCA. The
EPCA did not incorporate an existing arbitration clause. It
does not serve as an umbrella agreement binding Engineering
to arbitrate through its incorporation by reference of the ESA.
The district court erred in finding a valid arbitration agreement
existed between Corbion and Engineering on this basis.
Despite the district court’s finding that the ESA was the
umbrella agreement, Corbion argues that the Assignment acts
as an umbrella agreement and therefore binds Engineering
to the arbitration clause contained in the EPCA. It cites to
Frohberg Elec. Co. v. Grossenburg Implement, 297 Neb. 356,
900 N.W.2d 32 (2017), for the holding that a subcontract that
unambiguously incorporates a general contract with an arbi-
tration clause is binding on the subcontractor even where the
subcontractor is not a party to the general contract. However,
in Frohberg Elec. Co., supra, the general contract was in
existence at the time the subcontract was entered into and
the subcontract specifically provided that the subcontractor,

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
EAD ENGR. v. PURAC AMERICA
Cite as 34 Neb. App. 24
which signed the subcontract containing the incorporation
clause, agreed to be bound by the terms of the general con-
tract, which included an arbitration clause. That is not the
case here. Engineering did not agree to be bound by the arbi-
tration agreement in the later-created EPCA by assigning the
ESA to Constructors.
[6,7] An assignment is the transfer of some identifiable
property, claim, or right from the assignor to the assignee.
Millard Gutter Co. v. Shelter Mut. Ins. Co., 312 Neb. 606,
980 N.W.2d 420 (2022). An assignee stands in the shoes of
the assignor and is bound by the terms of the contract to the
same extent as the assignor. Vowers & Sons v. Strasheim, 248
Neb. 699, 538 N.W.2d 756 (1995). Consequently, it is the
assignee, not the assignor, that assumes responsibility through
the assignment. Therefore, Engineering’s Assignment was not
an umbrella agreement and did not bind it to the arbitration
clause contained in the EPCA.
Agency and Delegation.
On appeal, Corbion urges this court to affirm the district
court’s ruling under a theory of either agency or delegation to
the arbitration panel. In its reply brief, Engineering argues that
because Corbion did not file a cross-appeal, this court must
limit itself to the issues Engineering raised in its assignments
of error. We agree that we cannot affirm on the alternate bases
advanced by Corbion, but because these issues were raised
in the district court but not ruled upon, the matter must be
remanded to the district court for its determination. See Weber
v. Gas ’N Shop, 278 Neb. 49, 767 N.W.2d 746 (2009).
[8] In Weber, supra, the defendants asserted several defenses
to a garnishment. The district court granted defendants’ motion
to dismiss on one ground but did not address the others. Id.
On appeal, the defendants contended that the appellate court
could rely upon any of the other defenses as an alternative
ground for affirming the judgment of the district court. The
plaintiff, however, argued that the appellate court should not

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
EAD ENGR. v. PURAC AMERICA
Cite as 34 Neb. App. 24
consider these issues, because they were not decided by the
district court and not raised by cross-appeal. Id. The court
rejected both positions, explaining:
An appellate court will not consider an issue on
appeal that was not presented to or passed upon by the
trial court. An appellee’s argument that a lower court’s
decision should be upheld on grounds specifically rejected
below constitutes a request for affirmative relief, and the
appellee must cross-appeal in order for that argument
to be considered. Here, the alternative defenses were
presented to the district court, but the court did not reach
or decide their merits. Accordingly, there was no ruling
on these defenses from which a cross-appeal could have
been taken. In order to preserve each party’s right to
meaningful appellate review of issues presented to but
not decided by the district court, we decline to decide
such issues in the first instance. Instead, we remand to
the district court with directions to consider and decide
whether the garnishment proceeding is barred by any of
the alternative defenses asserted by [defendants]. This
determination should be made on the existing record,
unless the parties agree that the record may be reopened
and expanded.
Id. at 54-55, 767 N.W.2d at 750-51. See, also, Darling
Ingredients v. City of Bellevue, 309 Neb. 338, 960 N.W.2d
284 (2021).
In the district court, Corbion filed an application to com-
pel arbitration, citing both the existence of a valid arbitration
agreement and a delegation of authority to the arbitrators to
decide the issue of arbitrability. As to the existence of a valid
arbitration agreement, in its reply to Engineering’s resistance
to the application to compel arbitration, Corbion relied upon
incorporation by reference and agency theories. It argued that
“at the very least, . . . Constructors and Lichter were acting
as the duly authorized agents of . . . Engineering” when the
EPCA was signed, and therefore, “Engineering is bound to

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
EAD ENGR. v. PURAC AMERICA
Cite as 34 Neb. App. 24
arbitrate any disputes . . . by virtue of the assignment and
relationship of the parties.” The district court’s order did
not address either agency or delegation. As in Weber, supra,
Corbion’s request that this court affirm on a ground not spe-
cifically rejected by the district court is not a request for
affirmative relief. As such, Corbion was not required to file a
cross-appeal.
The district court found that Engineering was bound to
the arbitration provisions of the EPCA based on a theory of
incorporation by reference of an umbrella agreement. It did
not address the issue of agency or delegation. We will not con-
sider an issue not addressed by the district court. See, Weber,
supra; Darling Ingredients, supra. However, because Corbion
raised these issues in the district court and it failed to address
them, we remand the cause to the district court to consider
these issues on the existing record, unless the parties agree
that the record may be reopened and expanded.
Remaining Assignments of Error.
Engineering’s remaining assignments of error are subsumed
by the above analysis. Because we have determined that the
district court erred in finding a valid arbitration agreement
existed between Corbion and Engineering on an incorporation
by reference theory and that remand of the cause is necessary
for a determination of Corbion’s other theories, we need not
separately address Engineering’s remaining arguments.
CONCLUSION
For the reasons discussed above, we reverse the order of the
district court and remand the cause for further proceedings as
directed in this opinion.
Reversed and remanded for
further proceedings.