BRIAN HERMAN AND SKYLER HERMAN, APPELLANTS, V. PETER TONN ENTERPRISES, LLC, DOING BUSINESS AS 139 SUPPLY, A WISCONSIN LIMITED LIABILITY COMPANY, APPELLEE.
No. S-23-929
Nebraska Supreme Court
November 15, 2024
318 Neb. 52
N.W.3d ___
Jurisdiction. When a jurisdictional question does not involve a factual dispute, the issue is a matter of law. - Judgments: Appeal and Error. An appellate court reviews questions of law independently of the lower court‘s conclusion.
- Jurisdiction. One who invokes the power of the court on an issue other than the court‘s jurisdiction over one‘s person makes a general appearance so as to confer on the court personal jurisdiction over that person.
- Jurisdiction: Pleadings: Parties. A party will be deemed to have appeared generally if, by motion or other form of application to the court, he or she seeks to bring its powers into action on any matter other than the question of jurisdiction over that party.
Appeal from the District Court for Nance County, RACHEL A. DAUGHERTY, Judge. Reversed and remanded for further proceedings.
Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen, for appellants.
Joel E. Carlson, of Stratton, DeLay, Doele, Carlson, Buettner & Stover, P.C., L.L.O., for appellee.
HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, FUNKE, PAPIK, and FREUDENBERG, JJ.
Brian Herman and Skyler Herman sued Peter Tonn Enterprises, LLC, a Wisconsin limited liability company doing business as 139 Supply (139 Supply), for breach of contract. The Hermans alleged that they agreed to buy a livestock trailer from 139 Supply, but 139 Supply failed to honor the agreement. The district court dismissed the Hermans’ action, finding that it lacked personal jurisdiction over 139 Supply. The Hermans now appeal, arguing that 139 Supply waived its personal jurisdiction defense through actions it took in the district court proceedings. Because we agree that 139 Supply made a general appearance that conferred on the district court personal jurisdiction over 139 Supply, we reverse the order of dismissal and remand the cause for further proceedings.
BACKGROUND
Hermans Sue 139 Supply and Obtain Default Judgment.
This case began when the Hermans sued 139 Supply. The Hermans’ complaint alleged that 139 Supply agreed to sell the Hermans a livestock trailer for $26,000 and that the parties agreed that 139 Supply would deliver the trailer to the Hermans at a meeting place approximately halfway between the Hermans’ residence in Nance County, Nebraska, and 139 Supply‘s principal office in Portage, Wisconsin. According to the complaint, however, 139 Supply later informed the Hermans that it would not sell the trailer at the agreed-upon price, due to increased manufacturing costs. The complaint asserted a single cause of action for breach of contract.
The Hermans elected to serve 139 Supply by sending a summons and a copy of the complaint to 139 Supply‘s owner and registered agent, Peter Tonn, via certified mail. When 139 Supply subsequently failed to respond to the complaint, the Hermans filed a motion for default judgment, and the matter was set for a hearing.
At the hearing on the motion for default judgment, Tonn participated by telephone. He claimed that the document he sent to the district court in which he responded to the Hermans’ allegations was an answer and that the district court should therefore deny the motion for default judgment.
The district court granted the motion for default judgment. It ruled that 139 Supply was properly served and had failed to answer the complaint. The district court explained that the document sent by Tonn could not be treated as an answer because Tonn could not, as a nonlawyer, represent a limited liability company. The district court entered a $19,000 judgment in favor of the Hermans.
139 Supply Successfully Vacates Default Judgment.
Weeks later, 139 Supply, now represented by counsel, filed a motion to vacate the default judgment. The motion asserted that Tonn had attempted to represent 139 Supply, that the district court had ruled that Tonn‘s filing was not a proper responsive pleading, that Tonn was unaware that he could not represent 139 Supply, and that 139 Supply‘s failure to answer “was not due to indifference or want of diligence.” The motion did not assert that the district court lacked personal jurisdiction over 139 Supply or mention any other defenses to the Hermans’ complaint.
At a hearing on the motion to vacate the default judgment, the district court received into evidence an affidavit by Tonn which stated, among other things, that 139 Supply had no
The district court granted 139 Supply‘s motion to vacate the default judgment and set the matter for a pretrial conference. In its order vacating the default judgment, the district court stated that 139 Supply had set forth a potentially meritorious defense that a contract was not reached.
Additional Motions.
About a week before the pretrial conference was scheduled to occur, 139 Supply filed a motion for leave to file a responsive pleading out of time. The motion did not mention a personal jurisdiction defense. After the district court granted the motion to file a responsive pleading out of time, 139 Supply filed a motion to dismiss the Hermans’ complaint pursuant to
After a hearing, the district court entered an order dismissing the action on the grounds that it lacked personal jurisdiction over 139 Supply. The district court rejected the Hermans’ argument that 139 Supply had waived its personal jurisdiction defense. The district court then concluded that 139 Supply did not have sufficient contacts with Nebraska to justify the exercise of personal jurisdiction over it.
The Hermans appealed the district court‘s order dismissing the complaint.
The Hermans assign that the district court erred by determining that 139 Supply had not waived its right to assert a personal jurisdiction defense.
STANDARD OF REVIEW
[1,2] When a jurisdictional question does not involve a factual dispute, the issue is a matter of law. Paw K. v. Christian G., 315 Neb. 781, 1 N.W.3d 467 (2024). An appellate court reviews questions of law independently of the lower court‘s conclusion. Id.
ANALYSIS
Although the Hermans argue that their action should not have been dismissed, they do not challenge the district court‘s conclusion that 139 Supply lacked sufficient contacts with Nebraska to justify the exercise of personal jurisdiction over it. The Hermans instead argue that because 139 Supply waived the right to assert a personal jurisdiction defense, the district court should not have even entertained 139 Supply‘s arguments that it lacked sufficient contacts with Nebraska.
According to the Hermans, 139 Supply took actions both before and after it retained counsel that amounted to a general appearance that had the effect of waiving its right to assert a personal jurisdiction defense. The Hermans contend that the documents Tonn sent to the district court prior to 139 Supply‘s retention of counsel constituted a general appearance, notwithstanding the fact that they were filed by a nonlawyer who could not represent a limited liability company. The Hermans also argue that 139 Supply made a general appearance when, after retaining counsel, it filed a motion to vacate the default judgment that did not mention a personal jurisdiction defense. The Hermans also argue that 139 Supply‘s motion to file a responsive pleading out of time amounted to a general appearance.
As explained in more detail below, we find that 139 Supply made a general appearance when it filed its motion to vacate
Motion to Vacate Default Judgment Was General Appearance.
In support of their argument that 139 Supply‘s motion to vacate the default judgment was a general appearance, the Hermans primarily rely upon a recent decision of this court, Paw K., supra. We agree with the Hermans that under that case, 139 Supply‘s motion to vacate the default judgment qualifies as a general appearance.
In Paw K., supra, a petitioner obtained an ex parte domestic abuse protection order against the father of her child. The district court then notified the father that if he wished to contest the ex parte order, he needed to complete and submit a form for requesting a hearing and return it to the district court. Shortly thereafter, the father returned the completed form but made no mention of an objection to the ex parte order based on a lack of personal jurisdiction. The district court then scheduled a hearing, but the father did not appear. The district court affirmed the ex parte order. When the father later sought to vacate the order, the district court overruled the motion. The Nebraska Court of Appeals affirmed. See Paw K. v. Christian G., 32 Neb. App. 317, 997 N.W.2d 84 (2023).
We granted a petition for further review and also affirmed. Among the arguments we addressed was the father‘s contention that the district court lacked personal jurisdiction over him. We found that by filing the form requesting a hearing, the father made a general appearance that conferred on the district court personal jurisdiction over him.
[3,4] Citing recent decisions of this court, we summarized the law concerning general appearances as follows:
One who invokes the power of the court on an issue other than the court‘s jurisdiction over one‘s person makes a general appearance so as to confer on the court personal jurisdiction over that person. A party will be
deemed to have appeared generally if, by motion or other form of application to the court, he or she seeks to bring its powers into action on any matter other than the question of jurisdiction over that party.
Paw K. v. Christian G., 315 Neb. 781, 787, 1 N.W.3d 467, 474 (2024).
We found that by filing the form requesting a hearing, the father sought to invoke the court‘s powers on a matter other than personal jurisdiction, i.e., the merits of whether a protection order should have been entered. In response to the father‘s argument that he could contest the ex parte protection order only by filing the request for hearing form, we explained that nothing prevented the father from “endorsing the form to limit his request to one addressing only jurisdiction.” Id.
We agree with the Hermans that this case bears striking similarities to Paw K., supra. The father in Paw K. filed a form requesting that the district court hold a hearing on the issue of whether a protection order should remain in place but did not avail himself of the opportunity to note an objection based on a lack of personal jurisdiction. 139 Supply filed a motion requesting that the district court vacate a default judgment but did not avail itself of the opportunity to mention the lack of personal jurisdiction as a reason why the default judgment should be vacated. The filings in Paw K. and this case both generally invoked the power of the court and sought relief from an existing order or judgment without mentioning a lack of personal jurisdiction as a basis for that relief. Such filings amount to a general appearance that confers personal jurisdiction on the court. As we stated in Paw K., a party makes a general appearance if “by motion or other form of application to the court, he or she seeks to bring its powers into action on any matter other than the question of jurisdiction over that party.” 315 Neb. at 787, 1 N.W.3d at 474.
Counterarguments of 139 Supply Lack Merit.
139 Supply resists the conclusion that its motion to vacate the default judgment amounted to a general appearance that
In Applied Underwriters, a plaintiff alleging breach of contract filed a motion for default judgment after the defendant failed to file a responsive pleading. At a hearing on the motion for default judgment, counsel for the defendant alleged improper service of process and objected to an exhibit that listed amounts allegedly owed under the contract on the grounds that the amounts may not be accurate. The district court entered a default judgment. At a subsequent hearing for its motion to vacate the default judgment, the defendant argued that the default judgment should be set aside for multiple reasons, including that the district court did not have personal jurisdiction over the defendant and that the contract was void. The district court overruled the motion to vacate the default judgment, and the defendant appealed.
On appeal, this court concluded that the actions of the defendant‘s counsel at the hearing on the motion for default judgment resulted in a general appearance that waived the defendant‘s right to object to service of process. This court also said, however, that those same actions did not “waive the issue of personal jurisdiction insofar as it relates to [the defendant‘s] amenability to process issued by a Nebraska court.” Id. at 339, 912 N.W.2d at 918.
139 Supply argues that, under Applied Underwriters, its motion to vacate the default judgment did not waive its right to claim that the district court lacked personal jurisdiction over
In Applied Underwriters, our conclusion that the defendant made a general appearance but had not waived the right to contend that it was not amenable to process issued by a Nebraska court was based on
participation in the proceedings on any issue other than the defenses of lack of jurisdiction over the person, insufficiency of process, or insufficiency of services of process, waives all such issues except as to the objection that the party is not amenable to process issued by a court of this state.
Applied Underwriters v. Oceanside Laundry, 300 Neb. 333, 338, 912 N.W.2d 912, 917 (2018).
We then asserted that “[c]onsequently, a party may waive objections to personal jurisdiction based on defective service of process while retaining objections to personal jurisdiction based on amenability to service of process by a court of this state.” Id. at 339, 912 N.W.2d at 917-18.
Our summary in Applied Underwriters of what
(2) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process may be asserted only under the procedure provided in the pleading rules adopted by the Supreme Court. . . . If any of those defenses are asserted either by motion or in a responsive pleading and the court overrules the defense, an objection that the court erred in its ruling on any issue, except the objection that the party is not amenable to process issued by a court of this state, will be waived and not preserved for appellate review if the party asserting the defense thereafter participates in proceedings on any issue other than those defenses.
(Emphasis supplied.)
As illustrated by the portions of the statute emphasized above, neither the version of
In this case, the district court did not overrule an objection based on lack of personal jurisdiction, insufficiency of process, or insufficiency of service of process. Accordingly,
As noted above, 139 Supply also argues that its actions in the district court were not sufficiently defensive or aggressive to amount to a waiver of a personal jurisdiction defense. In support of this argument, 139 Supply compares its actions to those of a party found to have made a general appearance in Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016), and contends that its motion to vacate the default judgment was of a different character. 139 Supply argues that its motion to
Under our case law, however, a party need not exceed some threshold of defensiveness or aggression in order to make a general appearance. To the contrary, as we have discussed, a party will be deemed to have appeared generally if, by motion or other form of application to the court, he or she seeks to bring its powers into action on any matter other than the question of jurisdiction over that party. Burns v. Burns, supra. And, we have emphasized that “[i]t does not take much to make a general appearance.” Id. at 642, 879 N.W.2d at 383. Because 139 Supply sought to bring the district court‘s powers into action on a matter other than the district court‘s jurisdiction over it, it made a general appearance.
We are aware that a commentator has opined that the Legislature effectively abolished the law of general appearances when it amended
Because we find that 139 Supply made a general appearance through its motion to vacate the default judgment, we do not consider the Hermans’ arguments that 139 Supply waived its personal jurisdiction defense through other actions in the district court.
CONCLUSION
Through its motion to vacate the default judgment, 139 Supply made a general appearance and thereby conferred on the district court personal jurisdiction over it. The district court thus erred in dismissing the Hermans’ complaint on the grounds that it lacked personal jurisdiction over 139 Supply. Accordingly, we reverse the order of dismissal and remand the cause for further proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.