Stone Land & Livestock Co. v. HBE
309 Neb. 970
| Neb. | 2021Background
- Stone Land & Livestock Co. sued HBE, LLP and Michael J. Arens on March 1, 2019, alleging incorrect tax advice.
- On April 8, 2019, HBE’s attorneys filed an "Appearance of Counsel" listing counsel of record; no formal service on HBE was completed within the statutory 6-month window.
- The case lay dormant and on April 6, 2020 the district court dismissed the action without prejudice under Neb. Rev. Stat. § 25-217 for failure to timely serve defendants.
- Stone Land moved to reinstate, arguing the Appearance of Counsel was a "voluntary appearance" equivalent to service under § 25-516.01(1); the district court denied the motion.
- The Nebraska Supreme Court considered whether an Appearance of Counsel constitutes a voluntary appearance (i.e., an effective waiver of service) and whether dismissal for lack of timely service was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filing an "Appearance of Counsel" is a "voluntary appearance" equivalent to service under § 25-516.01(1), preventing dismissal under § 25-217 | The Appearance of Counsel constituted a voluntary appearance/waiver of service; e-filing and resulting notice to counsel shows invocation of court process | The filing only identified counsel and did not request general relief or otherwise demonstrate HBE’s intent to waive service or submit to jurisdiction | The Appearance of Counsel did not demonstrate an intent to waive service; mere acknowledgment of counsel/awareness of suit is insufficient; dismissal affirmed |
Key Cases Cited
- Carlson v. Allianz Versicherungs-AG, 287 Neb. 628 (2014) (voluntary appearance exists where party requests general relief on an issue other than service or personal jurisdiction)
- Vopalka v. Abraham, 260 Neb. 737 (2000) (action is dismissed when defendant is not served within the statutory period)
- J.S. v. Grand Island Pub. Schs., 297 Neb. 347 (2017) (recognizing filings that expressly waive service as voluntary appearances)
- VRT, Inc. v. Dutton-Lainson Co., 247 Neb. 845 (1995) (attorney acts bind client under agency principles where within attorney’s authority)
- In re Estate of Brinkman, 308 Neb. 117 (2021) (jurisdictional questions free of factual dispute are reviewed as questions of law)
- Koon v. United States, 518 U.S. 81 (1996) (district court abuses discretion when it commits an error of law)