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Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STONE LAND & LIVESTOCK CO. v. HBE

Cite as 309 Neb. 970

Stone Land and Livestock Company, Inc., 

a Nebraska corporation, et al., appellants, 

v. HBE, LLP, a Nebraska limited liability 

partnership, and Michael 

J. Arens, appellees.

___ N.W.2d ___

Filed August 13, 2021. No. S-20-672.

1. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

2. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

3. Service of Process: Waiver: Intent: Proof. A voluntary appearance 

refers to a party who has not been served with process taking some 

action or making some submission to the court that demonstrates an 

intention to waive service of process.

4. Attorney and Client: Negligence. A client is bound by the acts, omissions, neglect, and fraud of the client’s attorney when such is within the 

attorney’s scope of express, implied, apparent, or ostensible authority.

Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Affirmed.

Steven E. Guenzel, Cameron E. Guenzel, and Corey J. 

Wasserburger, of Johnson, Flodman, Guenzel & Widger, for 

appellants.

Taylor M. Hayes and Gregory C. Scaglione, of Koley Jessen, 

P.C., L.L.O., for appellees.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/27/2021 01:07 AM CDT
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Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STONE LAND & LIVESTOCK CO. v. HBE

Cite as 309 Neb. 970

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Papik, J.

This case presents the question of whether a defendant’s 

filing of an “Appearance of Counsel” constitutes a voluntary 

appearance that relieves a plaintiff of the ordinary obligation to 

serve defendant with the lawsuit. We hold that it does not and 

therefore affirm the district court’s order dismissing the lawsuit 

on the grounds that defendants were not timely served.

BACKGROUND

Complaint and “Appearance of Counsel.”

On March 1, 2019, Stone Land and Livestock Company, 

Inc., and its shareholders (collectively Stone Land) filed suit 

against HBE, LLP, an accounting firm, and Michael J. Arens, 

a member and manager of HBE (collectively HBE), in the 

Lancaster County District Court. The complaint alleged that 

Arens provided Stone Land with incorrect information regarding the income tax consequences of a sale of land.

On April 8, 2019, attorneys for HBE filed a document 

entitled “Appearance of Counsel.” The document bore the 

caption of the lawsuit and stated, “Gregory C. Scaglione and 

Cassandra M. Langstaff of the law firm of Koley Jessen P.C., 

L.L.O., hereby enter their appearance as counsel of record for 

Defendants HBE, LLP and MICHAEL J. ARENS.” Under this 

statement were the names of the defendants and the signature 

block of the attorneys.

Dismissal and Attempt to Reinstate.

Our record reflects no activity in the case for nearly a year 

after the filing of the Appearance of Counsel. Then, on April 

6, 2020, the district court entered an order dismissing the case 

without prejudice. The order of dismissal stated that the complaint was being dismissed because Stone Land had not timely 

served HBE with the lawsuit.
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Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STONE LAND & LIVESTOCK CO. v. HBE

Cite as 309 Neb. 970

On April 13, 2020, Stone Land filed a motion asking the 

district court to reinstate the case. Stone Land asserted that the 

Appearance of Counsel was a voluntary appearance that was 

“equivalent to service” under Neb. Rev. Stat. § 25-516.01(1) 

(Cum. Supp. 2020).

The district court denied Stone Land’s motion. The district 

court concluded that the Appearance of Counsel was not a 

voluntary appearance under § 25-516.01(1). It relied on language from Carlson v. Allianz Versicherungs-AG, 287 Neb. 

628, 641, 844 N.W.2d 264, 274 (2014), in which we stated 

that “a voluntary appearance is the equivalent to service that 

waives a defense of insufficient service or process if the party 

requests general relief from the court on an issue other than 

sufficiency of service or process, or personal jurisdiction.” The 

district court concluded that because HBE had not invoked the 

district court’s authority or requested general relief, it had not 

made a voluntary appearance. Based on its determination that 

HBE had not made a voluntary appearance and Stone Land had 

not perfected service upon HBE, the district court determined 

that the matter was properly dismissed under Neb. Rev. Stat. 

§ 25-217(2) (Reissue 2016).

Stone Land timely appealed, and we moved the case to our 

docket. We later granted a motion for revivor filed by the personal representative of the estate of a deceased shareholder of 

Stone Land and revived the appeal in the name of the personal 

representative, in her capacity as personal representative.

ASSIGNMENT OF ERROR

Stone Land assigns several errors, but they can be effectively consolidated and restated into one: Stone Land contends 

the district court erred by dismissing the complaint for failure 

to perfect service within the statutory deadline.

STANDARD OF REVIEW

The parties disagree regarding the appropriate standard of 

review in this case. HBE contends that because Stone Land 
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309 Nebraska Reports

STONE LAND & LIVESTOCK CO. v. HBE

Cite as 309 Neb. 970

seeks review of the district court’s order denying its motion 

to reinstate the case, which was a motion to alter or amend the 

judgment, an abuse of discretion standard applies. Stone Land 

argues that we should review this matter independently of the 

determination reached by the district court.

[1,2] Although the denial of a motion to alter or amend the 

judgment is generally reviewed for an abuse of discretion, see, 

e.g., State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016), 

Stone Land seeks review of a jurisdictional determination by 

the district court, see, e.g., Kovar v. Habrock, 261 Neb. 337, 

622 N.W.2d 688 (2001) (district court lacks jurisdiction over 

action after failure to serve defendant pursuant to § 25-217). 

A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. In 

re Estate of Brinkman, 308 Neb. 117, 953 N.W.2d 1 (2021). 

Stone Land’s arguments also require that we engage in statutory interpretation, which also presents a question of law. Ryan 

v. Streck, Inc., ante p. 98, 958 N.W.2d 703 (2021). An appellate court independently reviews questions of law decided by 

a lower court. In re Estate of Brinkman, supra. Further, it is 

of little practical consequence in this case whether we label 

our review as abuse of discretion or de novo. As we have 

explained, this case presents a question of law, and a “district 

court by definition abuses its discretion when it makes an error 

of law.” Koon v. United States, 518 U.S. 81, 100, 116 S. Ct. 

2035, 135 L. Ed. 2d 392 (1996).

ANALYSIS

Under the version of § 25-217 in effect at the time Stone 

Land filed its complaint, it was required to serve HBE within 

6 months. But, see, 2019 Neb. Laws, L.B. 308, § 1 (amending 

service deadline of 6 months to 180 days, effective September 

1, 2019). If service is not completed within this statutory 

deadline, the district court loses jurisdiction and the action is 

dismissed without prejudice by operation of law. See Vopalka 

v. Abraham, 260 Neb. 737, 619 N.W.2d 594 (2000).
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309 Nebraska Reports

STONE LAND & LIVESTOCK CO. v. HBE

Cite as 309 Neb. 970

There is no dispute that HBE was not actually served within 

6 months of the filing of Stone Land’s complaint. Another 

statute, however, provides that the “voluntary appearance of 

the party is equivalent to service.” § 25-516.01(1). If, as Stone 

Land contends, the Appearance of Counsel was a voluntary 

appearance under this statute, that would be a timely “equivalent to service,” and the district court should not have dismissed the action under § 25-217.

The district court determined that the Appearance of Counsel 

was not a voluntary appearance, because it did not request general relief from the court on an issue other than sufficiency of 

service of process or personal jurisdiction. Stone Land argues 

that the district court overlooked a way in which HBE did in 

fact request relief through its Appearance of Counsel. Stone 

Land points out that HBE electronically filed its Appearance 

of Counsel and, by doing so, ensured that its counsel would 

receive automatic notice of subsequent filings in the case. We 

disagree that HBE requested general relief on an issue other 

than sufficiency of service or process, or personal jurisdiction 

in its Appearance of Counsel. Even assuming that a request 

to be notified of future filings would amount to a request for 

relief on an “issue” in the case, the Appearance of Counsel 

made no such request. Automatic notice of future filings may 

have been a consequence of the Appearance of Counsel, but 

not because the Appearance of Counsel requested it.

Alternatively, Stone Land asks that we find that the 

Appearance of Counsel was a voluntary appearance even if it 

did not request relief from the district court on an issue other 

than sufficiency of service or process, or personal jurisdiction. Although we have stated that a party makes a voluntary 

appearance if it makes such a request, see Carlson v. Allianz 

Versicherungs-AG, 287 Neb. 628, 844 N.W.2d 264 (2014), that 

cannot be the only mechanism by which a party can make a 

voluntary appearance. If that were so, a party filing a document 

stating that it had received the complaint and was entering 
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309 Nebraska Reports

STONE LAND & LIVESTOCK CO. v. HBE

Cite as 309 Neb. 970

its voluntary appearance and waiving service of process would 

not make a voluntary appearance. That is obviously not the 

case. See, e.g., J.S. v. Grand Island Public Schools, 297 Neb. 

347, 899 N.W.2d 893 (2017) (recognizing such filing as voluntary appearance). See, also, John P. Lenich, Nebraska Civil 

Procedure § 10:26 (2021).

While there is no question that a party can make a voluntary 

appearance without requesting general relief from the court on 

an issue other than sufficiency of service or process, or personal 

jurisdiction, we do not appear to have previously explored 

what a party must do to make a voluntary appearance in this 

way. To answer this question, we must interpret § 25-516.01(1) 

and particularly the term “voluntary appearance” as it appears 

in that subsection. Ordinarily, we give statutory language its 

plain and ordinary meaning. See In re Guardianship of Eliza 

W., 304 Neb. 995, 938 N.W.2d 307 (2020). The term “voluntary appearance,” however, is a legal term of art. A legal term 

of art is a word or phrase having a specific, precise meaning 

in a given specialty apart from its general meaning in ordinary 

contexts. State ex rel. Peterson v. Creative Comm. Promotions, 

302 Neb. 606, 924 N.W.2d 664 (2019). When legal terms of art 

are used in statutes, they are to be construed according to their 

term of art meaning. Id.

The term “appearance,” in this context, generally refers to 

the idea of a party to a lawsuit taking some action or submitting something to the court by which that party demonstrates 

an intention to submit to the court’s jurisdiction. See, e.g., 

Dyer v. Surratt, 266 Ga. 220, 466 S.E.2d 584 (1996) (appearance signifies overt act by which person against whom suit 

has commenced submits to court’s jurisdiction); U.S. Aviation, 

Inc. v. Wyoming Avionics, 664 P.2d 121, 124 (Wyo. 1983) 

(“[a]n appearance in an action involves some submission or 

presentation to the court by which a party shows his intention 

to submit himself to the jurisdiction of the court”); Minton 

v. First National Exchange Bank of Virginia, 206 Va. 589, 

593, 145 S.E.2d 139, 143 (1965) (“[i]t is generally held that 
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STONE LAND & LIVESTOCK CO. v. HBE

Cite as 309 Neb. 970

an appearance by a party requires some act on the part of 

that party evidencing an intention to submit himself to the 

jurisdiction of the court”). A “voluntary appearance” stands in 

contrast to a “compulsory appearance”: a voluntary appearance 

is made by one who appears without having been served with 

process, while a compulsory appearance is made by a party 

who is required to appear as a result of being served with 

process. Black’s Law Dictionary 122 (11th ed. 2019); 6 C.J.S. 

Appearances § 2 (2016). In Nebraska, the term “voluntary 

appearance” has traditionally referred to a waiver of service of 

process. See Lenich, supra, § 11:26.

[3] Based on the foregoing, we understand a voluntary 

appearance to refer to a party who has not been served with 

process taking some action or making some submission to 

the court that demonstrates an intention to waive service of 

process. We observe that our prior cases holding that a party 

makes a voluntary appearance if it requests general relief 

from the court on an issue other than sufficiency of service or 

process, or personal jurisdiction is consistent with this understanding; by making such a request and thereby invoking the 

authority of the court, a party demonstrates an intent to waive 

service of process.

HBE takes the position that the Appearance of Counsel did 

not demonstrate its intent to do anything. HBE frames the 

Appearance of Counsel as a filing by which the attorneys referenced appeared in the action, but that the parties they purported 

to represent did not.

[4] We disagree that the Appearance of Counsel should be 

treated as a filing of only the referenced attorneys and not a 

filing on behalf of HBE. HBE conceded at oral argument that 

it could be assumed in this case that the Appearance of Counsel 

was made with the consent of HBE. The signature block of 

the Appearance of Counsel indicates that it was submitted 

on behalf of HBE. Further, the relationship between attorney 

and client is one of agency. See VRT, Inc. v. Dutton-Lainson 

Co., 247 Neb. 845, 530 N.W.2d 619 (1995). Consequently, the 
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STONE LAND & LIVESTOCK CO. v. HBE

Cite as 309 Neb. 970

client is bound by the acts, omissions, neglect, and fraud of 

the client’s attorney when such is within the attorney’s scope 

of express, implied, apparent, or ostensible authority. Id. The 

Appearance of Counsel was a filing of HBE.

Although we find that the Appearance of Counsel was filed 

on behalf of HBE, we disagree that it demonstrated an intention on the part of HBE to waive service of process. In the 

Appearance of Counsel, HBE did nothing more than acknowledge the existence of the lawsuit and disclose to Stone Land 

and the district court that the referenced attorneys would be 

representing it in that lawsuit. A party’s awareness of a lawsuit 

and its disclosure that it has chosen attorneys to represent it in 

that lawsuit does not, in our view, demonstrate an intention to 

waive service of process. A party can be aware of a lawsuit and 

still insist on service of process. Further, a party’s attorneys 

might take no action in a lawsuit other than contending that 

service was not perfected.

Finally, we are not persuaded by Stone Land’s argument 

that if the Appearance of Counsel does not qualify as a voluntary appearance, neither would a form entitled “Voluntary 

Appearance” made available on the Nebraska Judicial Branch’s 

website. The form to which Stone Land refers both expressly 

cites § 25-516.01 and provides room for parties to acknowledge 

they are making a “Voluntary Appearance” in the action. The 

reference to the statute and the term “Voluntary Appearance” 

demonstrate an intention to waive service of process pursuant 

to § 25-516.01 that is absent from the Appearance of Counsel 

filed in this case.

The Legislature has directed that actions are dismissed if 

defendants do not, prior to the statutory deadline, receive service or make a voluntary appearance. HBE was not served prior 

to the statutory deadline, and, for reasons we have explained, its 

Appearance of Counsel did not amount to a voluntary appearance. Under the circumstances, the district court was obligated 

to recognize the dismissal of the complaint.
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Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STONE LAND & LIVESTOCK CO. v. HBE

Cite as 309 Neb. 970

CONCLUSION

Because we find that the Appearance of Counsel was not a 

voluntary appearance and that HBE was not timely served, the 

district court correctly recognized the complaint as dismissed 

pursuant to § 25-217. We therefore affirm.

Affirmed.

Miller-Lerman, J., not participating.