13 N.W.3d 177
Neb.2024Background
- Brian and Skyler Herman (the Hermans) sued Peter Tonn Enterprises, LLC (I39 Supply), a Wisconsin company, for breach of contract over a livestock trailer sale that allegedly was not honored after a price increase.
- The Hermans served I39 Supply by certified mail; when I39 Supply did not answer, a default judgment was entered in favor of the Hermans.
- I39 Supply’s owner, a nonlawyer, submitted documents and participated in a hearing but was not allowed to officially represent the LLC.
- After retaining counsel, I39 Supply moved to vacate the default judgment, arguing excusable neglect but not raising personal jurisdiction.
- Later, I39 Supply sought to file a late answer and moved to dismiss, then specifically raised lack of personal jurisdiction as a defense.
- The district court dismissed the case for lack of personal jurisdiction; the Hermans appealed, arguing I39 Supply waived this defense by making a general appearance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did I39 Supply waive its personal jurisdiction defense by general appearance? | I39 Supply invoked court powers (motion to vacate default judgment) without raising personal jurisdiction, therefore waived it. | The motion to vacate was not a general appearance and did not waive personal jurisdiction. | Yes, general appearance occurred; jurisdiction was conferred. |
| Whether actions by nonlawyer owner (Tonn) before counsel amounted to a general appearance | Even pre-counsel filings constituted a general appearance. | Only filings by counsel count, and pre-counsel acts should not waive rights. | Court focused on motion to vacate post-counsel as general appearance. |
| Whether Applied Underwriters precedent shielded I39 Supply from waiver | Not applicable to this context, does not preempt general appearance doctrine. | Applied Underwriters should control and preserve the right to challenge jurisdiction. | Not applicable; statute only addresses preservation after adverse ruling. |
| Necessity of an "aggressive" or "defensive" action for waiver | Any invocation of court's power other than jurisdiction waives the defense. | Only assertive legal action (not just restoring status quo) should count as waiver. | No high threshold; "it does not take much" for general appearance. |
Key Cases Cited
- Paw K. v. Christian G., 315 Neb. 781 (general appearance doctrine applies if party invokes court powers on something other than personal jurisdiction)
- Applied Underwriters v. Oceanside Laundry, 300 Neb. 333 (distinguished; statute governs preservation for appeal after adverse ruling, not waiver by general appearance)
- Burns v. Burns, 293 Neb. 633 (actions invoking powers of the court, even with minimal involvement, suffice for general appearance)