Herman v. Peter Tonn Enters.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
HERMAN v. PETER TONN ENTERS.
Cite as 318 Neb. 52
Brian Herman and Skyler Herman, appellants,
v. Peter Tonn Enterprises, LLC, doing business
as I39 Supply, a Wisconsin limited
liability company, appellee.
___ N.W.3d ___
Filed November 15, 2024. 	No. S-23-929.
1. Jurisdiction. When a jurisdictional question does not involve a factual
dispute, the issue is a matter of law.
2. Judgments: Appeal and Error. An appellate court reviews questions of
law independently of the lower court’s conclusion.
3. 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 appear-
ance so as to confer on the court personal jurisdiction over that person.
4. 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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:17 AM CDT

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
HERMAN v. PETER TONN ENTERS.
Cite as 318 Neb. 52
Papik, J.
Brian 	Herman 	and 	Skyler 	Herman 	sued 	Peter 	Tonn
Enterprises, LLC, a Wisconsin limited liability company doing
business as I39 Supply (I39 Supply), for breach of contract.
The Hermans alleged that they agreed to buy a livestock trailer
from I39 Supply, but I39 Supply failed to honor the agree-
ment. The district court dismissed the Hermans’ action, find-
ing that it lacked personal jurisdiction over I39 Supply. The
Hermans now appeal, arguing that I39 Supply waived its per-
sonal jurisdiction defense through actions it took in the district
court proceedings. Because we agree that I39 Supply made a
general appearance that conferred on the district court personal
jurisdiction over I39 Supply, we reverse the order of dismissal
and remand the cause for further proceedings.
BACKGROUND
Hermans Sue I39 Supply and
Obtain Default Judgment.
This case began when the Hermans sued I39 Supply. The
Hermans’ complaint alleged that I39 Supply agreed to sell
the Hermans a livestock trailer for $26,000 and that the par-
ties agreed that I39 Supply would deliver the trailer to the
Hermans at a meeting place approximately halfway between
the Hermans’ residence in Nance County, Nebraska, and I39
Supply’s principal office in Portage, Wisconsin. According to
the complaint, however, I39 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 I39 Supply by sending a
summons and a copy of the complaint to I39 Supply’s owner
and registered agent, Peter Tonn, via certified mail. When I39
Supply subsequently failed to respond to the complaint, the
Hermans filed a motion for default judgment, and the matter
was set for a hearing.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
HERMAN v. PETER TONN ENTERS.
Cite as 318 Neb. 52
In the weeks leading up to the default judgment hearing,
Tonn, who is not an attorney, sent documents to the district
court. One document was signed by Tonn and responded to
allegations in the Hermans’ complaint regarding the alleged
agreement regarding the trailer. In another document signed
by Tonn, he requested to appear by telephone at the upcoming
hearing. Another document attached screenshots of text mes-
sages between the Hermans and an I39 Supply employee.
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 I39 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 judg-
ment in favor of the Hermans.
I39 Supply Successfully Vacates
Default Judgment.
Weeks later, I39 Supply, now represented by counsel, filed
a motion to vacate the default judgment. The motion asserted
that Tonn had attempted to represent I39 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 I39 Supply, and that I39 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 jurisdic-
tion over I39 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 I39 Supply had no

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
HERMAN v. PETER TONN ENTERS.
Cite as 318 Neb. 52
personnel or property in Nebraska, that defending a cause of
action in Nebraska would be burdensome on I39 Supply, and
that there was no written contract selecting Nebraska as the
forum state for the dispute. Then, during argument at the hear-
ing, counsel for I39 Supply suggested that the district court
may lack personal jurisdiction over I39 Supply, stating, “We
believe . . . there are some potential meritorious defenses here;
possibly a personal jurisdiction issue . . . .” Counsel for I39
Supply also suggested that the parties may not have entered
into an enforceable contract.
The district court granted I39 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 I39 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, I39 Supply filed a motion for leave to file a respon-
sive pleading out of time. The motion did not mention a per-
sonal jurisdiction defense. After the district court granted the
motion to file a responsive pleading out of time, I39 Supply
filed a motion to dismiss the Hermans’ complaint pursuant to
Neb. Ct. R. Pldg. § 6-1112(b). The motion to dismiss listed
several grounds for dismissal, including lack of personal juris-
diction, lack of subject matter jurisdiction, and failure to state
a claim upon which relief could be granted.
After a hearing, the district court entered an order dismiss-
ing the action on the grounds that it lacked personal jurisdic-
tion over I39 Supply. The district court rejected the Hermans’
argument that I39 Supply had waived its personal jurisdiction
defense. The district court then concluded that I39 Supply did
not have sufficient contacts with Nebraska to justify the exer-
cise of personal jurisdiction over it.
The Hermans appealed the district court’s order dismissing
the complaint.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
HERMAN v. PETER TONN ENTERS.
Cite as 318 Neb. 52
ASSIGNMENT OF ERROR
The Hermans assign that the district court erred by deter-
mining that I39 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 fac-
tual 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 I39 Supply lacked sufficient contacts with
Nebraska to justify the exercise of personal jurisdiction over
it. The Hermans instead argue that because I39 Supply waived
the right to assert a personal jurisdiction defense, the district
court should not have even entertained I39 Supply’s arguments
that it lacked sufficient contacts with Nebraska.
According to the Hermans, I39 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 I39 Supply’s
retention of counsel constituted a general appearance, notwith-
standing the fact that they were filed by a nonlawyer who could
not represent a limited liability company. The Hermans also
argue that I39 Supply made a general appearance when, after
retaining counsel, it filed a motion to vacate the default judg-
ment that did not mention a personal jurisdiction defense. The
Hermans also argue that I39 Supply’s motion to file a respon-
sive pleading out of time amounted to a general appearance.
As explained in more detail below, we find that I39 Supply
made a general appearance when it filed its motion to vacate

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
HERMAN v. PETER TONN ENTERS.
Cite as 318 Neb. 52
the default judgment and that this conferred on the district
court personal jurisdiction over I39 Supply.
Motion to Vacate Default Judgment
Was General Appearance.
In support of their argument that I39 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, I39 Supply’s motion to vacate the default judgment quali-
fies 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 dis-
trict 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 sched-
uled 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 conten-
tion 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

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
HERMAN v. PETER TONN ENTERS.
Cite as 318 Neb. 52
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 ques-
tion 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 pro-
tection 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. I39 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 jurisdic-
tion on the court. As we stated in Paw K., a party makes a gen-
eral 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 I39 Supply Lack Merit.
I39 Supply resists the conclusion that its motion to vacate
the default judgment amounted to a general appearance that

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
HERMAN v. PETER TONN ENTERS.
Cite as 318 Neb. 52
conferred on the district court personal jurisdiction over it.
I39 Supply argues a different case from this court, Applied
Underwriters v. Oceanside Laundry, 300 Neb. 333, 912 N.W.2d
912 (2018), is more applicable and that, under the rationale set
forth in that case, it did not waive the right to assert a personal
jurisdiction defense. It also makes a more general argument
that its motion to vacate the default judgment was not suffi-
ciently “defensive” or “aggressive” to waive a personal juris-
diction objection. Brief for appellee at 18. We address both
arguments below, beginning with I39 Supply’s argument based
on Applied Underwriters, supra.
In Applied Underwriters, a plaintiff alleging breach of
contract filed a motion for default judgment after the defend-
ant 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 mul-
tiple 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.
I39 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

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
HERMAN v. PETER TONN ENTERS.
Cite as 318 Neb. 52
it. Having reviewed our decision in Applied Underwriters,
however, we believe it was based on an incorrect interpretation
of a statute.
In Applied Underwriters, our conclusion that the defend-
ant 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 Neb. Rev. Stat. § 25-516.01(2)
(Reissue 2016). We said that subsection stated that
participation in the proceedings on any issue other than
the defenses of lack of jurisdiction over the person, insuf-
ficiency of process, or insufficiency of services of proc-
ess, 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 § 25-516.01(2)
provided did not adhere to the precise language of the statute.
At that time, § 25-516.01(2) provided, in relevant part:
(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 pro-
vided 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 over-
rules 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.)

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
HERMAN v. PETER TONN ENTERS.
Cite as 318 Neb. 52
Section 25-516.01(2) was amended in 2019 so that the
exception for an “objection that the party is not amenable to
process issued by a court of this state” was replaced with “an
objection to the court’s ruling on personal jurisdiction.” 2019
Neb. Laws, L.B. 308, § 2.
As illustrated by the portions of the statute emphasized
above, neither the version of § 25-516.01(2) in effect at the
time of that decision nor the version in effect today sets forth
a comprehensive rule identifying what defenses are waived if
a general appearance is made. Instead, § 25-516.01(2), both
at the time Applied Underwriters was decided and today,
addresses the more specific situation of what defenses are
preserved for appellate review if the court overrules a defense
based on lack of personal jurisdiction, insufficiency of process,
or insufficiency of service of process and the party making that
objection thereafter participates in the proceedings on other
issues. See, also, John P. Lenich, Nebraska Civil Procedure
§ 11:26 at 629 (2024) (explaining § 25-516.01 “does not
address the issue of whether a party has made an appearance”
but “instead addresses the issue of whether a party may pre-
serve for appeal objections to personal jurisdiction and ser-
vice that were properly raised pursuant to Rule § 6-1112 but
rejected by the trial court”).
In this case, the district court did not overrule an objec-
tion based on lack of personal jurisdiction, insufficiency of
process, or insufficiency of service of process. Accordingly,
§ 25-516.01(2) does not apply, and I39 Supply’s reliance on
Applied Underwriters is unavailing.
As noted above, I39 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, I39 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. I39 Supply argues that its motion to

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
HERMAN v. PETER TONN ENTERS.
Cite as 318 Neb. 52
vacate the default judgment sought only to “restore the litiga-
tion to a status quo position” and thus should not be found to
have waived a personal jurisdiction defense. Brief for appellee
at 18.
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 ques-
tion 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
I39 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 appear-
ances when it amended § 25-516.01 in 2002. See Lenich, supra
at 627 (stating that when Legislature “abolished special appear-
ances in 2002 [by repealing] the subsection of § 25-516.01 that
governed them,” Legislature “also abolished general appear-
ances—or at least the type of appearances that were histori-
cally classified as general appearances”). This court, however,
has on several occasions applied the law of general appear-
ances after the 2002 statutory amendments. See, e.g., Paw K.
v. Christian G., 315 Neb. 781, 1 N.W.3d 467 (2024); In re
Estate of Marsh, 307 Neb. 893, 951 N.W.2d 486 (2020); Burns
v. Burns, supra; Friedman v. Friedman, 290 Neb. 973, 863
N.W.2d 153 (2015). And, in this case, counsel for I39 Supply
acknowledged at oral argument that I39 Supply was not con-
tending that recent cases from this court finding that a party
waived objections by making a general appearance should be
overruled. I39 Supply instead attempted to distinguish those
cases. In the absence of an argument by a party that the 2002

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
HERMAN v. PETER TONN ENTERS.
Cite as 318 Neb. 52
statutory amendments abrogated the law of general appear-
ances, we decline to consider that issue today.
Because we find that I39 Supply made a general appear-
ance through its motion to vacate the default judgment, we do
not consider the Hermans’ arguments that I39 Supply waived
its personal jurisdiction defense through other actions in the
district court.
CONCLUSION
Through its motion to vacate the default judgment, I39
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 I39 Supply.
Accordingly, we reverse the order of dismissal and remand the
cause for further proceedings.
Reversed and remanded for
further proceedings.