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Hand Cut Steaks Acquisitions, Inc.,

corporation, appellant and cross-appel

v. Lone Star Steakhouse & Sal

Nebraska, Inc., a Nebraska corporat

appellee and cross-appellant,

LSF5 Cactus, L.L.C., a D

limited liability company, appelle

___ N.W.2d ___

Filed January 19, 2018. No. S-16-1005.

1. Evidence: Stipulations: Appeal and Error. In a case in which the facts 

are stipulated, an appellate court reviews the case as if trying it originally in order to determine whether the facts warranted the judgment.

2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional 

question does not involve a factual dispute, determination of a jurisdictional issue is a matter of law which requires an appellate court to reach 

a conclusion independent from the trial court’s.

3. Landlord and Tenant: Abandonment. An abandonment of leased 

premises by the tenant constitutes an offer to terminate the lease.

4. Landlord and Tenant: Abandonment: Intent. Whether there has been 

an acceptance by the landlord of the tenant’s abandonment of the premises is largely a matter of intention, and such an acceptance may be 

inferred from acts of the landlord inconsistent with the continuance of 

the lease.

5. Landlord and Tenant. Whether a surrender and acceptance of leased 

premises occurred is a question of fact.

6. Landlord and Tenant: Abandonment: Damages. After a tenant abandons leased property, a landlord may mitigate its damages not only by 

reletting the property to another tenant, but also by selling the property.

7. Landlord and Tenant: Abandonment: Intent. Like retaking and reletting leased property, the act of attempting to sell and selling the property 

by a landlord after a tenant abandons it is equivocal and can evince an 

Nebraska Supreme Court Online Library

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

03/16/2018 01:12 AM CDT
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intent to mitigate the landlord’s damages just as easily as it can evince 

an intent to accept the tenant’s surrender.

8. Landlord and Tenant: Abandonment: Damages: Intent: 

Presumptions. Where a landlord’s actions are not inconsistent with an 

intent to mitigate its damages, a court will not presume that the landlord 

intended to accept the tenant’s surrender of the leased premises and terminate the lease.

9. Landlord and Tenant: Abandonment: Damages. A landlord may not 

unreasonably refuse to accept a qualified and suitable substitute tenant for the purpose of mitigating the damages recoverable from a tenant who has abandoned the leased premises prior to the expiration of 

the term.

10. ____: ____: ____. A landlord has a duty to relet the premises in order 

to mitigate damages when a tenant abandons the premises prior to the 

expiration of a lease. This duty to mitigate requires that the landlord take 

all reasonable steps to reduce his damages.

11. Landlord and Tenant: Abandonment: Damages: Proof. In a landlord’s action to recover unpaid rent upon a tenant’s abandonment of the 

premises prior to the end of the lease term, the tenant has the burden 

to show that the landlord unreasonably failed to relet the premises and 

mitigate damages.

12. Landlord and Tenant: Abandonment: Damages. After a tenant has 

abandoned leased premises, a landlord may satisfy its duty to mitigate 

damages by retaking the premises and making reasonable efforts to relet 

the premises on the tenant’s account, to sell the property, or both.

13. Landlord and Tenant: Leases: Breach of Contract: Damages: Sales: 

Time. A landlord may generally recover unpaid rent and expenses due 

under a lease from the time of the tenant’s breach through the time a 

sale of the property is completed, plus any commercially reasonable 

expenses incurred in order to procure a new tenant or buyer.

14. Landlord and Tenant: Abandonment: Damages. A landlord’s efforts 

to mitigate its damages after a tenant abandons the leased property must 

be commercially reasonable under the circumstances.

15. Landlord and Tenant: Abandonment: Damages: Time. A landlord’s 

duty to mitigate its damages arises when the tenant abandons or surrenders the property.

16. Landlord and Tenant: Abandonment: Damages. Until there is an 

abandonment or tender of property by a tenant, a landlord has no duty 

to mitigate its damages by reletting or selling the property.

17. Landlord and Tenant: Abandonment: Damages: Sales: Time. If a 

landlord’s efforts to mitigate its damages by selling abandoned property 

are reasonable under all the circumstances—including reasonable in 

time—damages will ordinarily run until the date of sale.
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18. Jurisdiction: Words and Phrases. Personal jurisdiction is the power 

of a tribunal to subject and bind a particular person or entity to its 

decisions.

19. Constitutional Law: Jurisdiction: Due Process: Service of Process: 

States. Courts’ ability to validly exercise personal jurisdiction is not 

without limit. The Due Process Clause of the 14th Amendment to the 

U.S. Constitution bars a court from exercising personal jurisdiction over 

an out-of-state defendant, served with process outside the state, unless 

that defendant has sufficient ties to the forum state.

20. Constitutional Law: Jurisdiction: Statutes: Due Process: States. A 

two-step analysis is used to determine whether a Nebraska court may 

validly exercise personal jurisdiction over an out-of-state defendant. 

First, a court must consider whether Nebraska’s long-arm statute—Neb. 

Rev. Stat. § 25-536 (Reissue 2016)—authorizes the exercise of personal 

jurisdiction over the defendant. Second, a court must consider whether 

the exercise of personal jurisdiction over the defendant comports with 

the Due Process Clause.

21. Constitutional Law: Jurisdiction: Statutes: Due Process. If a 

Nebraska court’s exercise of personal jurisdiction would comport with 

the Due Process Clause of the 14th Amendment, it is authorized by the 

long-arm statute—Neb. Rev. Stat. § 25-536(2) (Reissue 2016).

22. Constitutional Law: Jurisdiction: Due Process: States: Words and 

Phrases. To satisfy the Due Process Clause, a court may only exercise 

personal jurisdiction over a defendant that is not present in the forum 

state if that defendant has “minimum contacts” with the forum such that 

the exercise of jurisdiction does not offend traditional notions of fair 

play and substantial justice. To constitute sufficient minimum contacts 

with the forum, a defendant’s conduct and connection with the forum 

state must be such that he or she should reasonably anticipate being 

haled into court there.

23. Jurisdiction: States. Whether a defendant’s contacts with the forum 

state are sufficient to support the exercise of personal jurisdiction will 

vary with the quality and nature of the defendant’s activity, but it is 

essential in each case that there be some act by which the defendant 

purposefully avails itself of the privilege of conducting activities 

within the forum state, thus invoking the benefits and protections of 

its laws.

24. ____: ____. Personal jurisdiction is proper where the defendant’s contacts proximately result from actions by the defendant himself or herself 

that create a substantial connection with the forum state.

25. ____: ____. In the minimum contacts analysis, courts will consider the 

burden on a defendant in light of considerations such as (1) the forum 

state’s interest in adjudicating the dispute, (2) the plaintiff’s interest 
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in obtaining convenient and effective relief, (3) the interstate judicial 

system’s interest in obtaining the most efficient resolution of controversies, and (4) the shared interest of the several states in furthering 

fundamental substantive social policies. Consideration of these factors 

may sometimes serve to establish the reasonableness of jurisdiction 

upon a lesser showing of minimum contacts than would otherwise 

be required.

26. ____: ____. The nature and quality of a defendant’s contacts with 

the forum state necessary to support the exercise of personal jurisdiction depend on the connection between the contacts and the claim 

being asserted.

27. Jurisdiction: States: Words and Phrases. General, or all-purpose, 

jurisdiction is jurisdiction arising where a defendant’s affiliations with a 

state are so continuous and systematic as to render the defendant essentially at home in the forum state.

28. Jurisdiction. Where a court has general personal jurisdiction over a 

defendant, it can adjudicate any claim against the defendant—even a 

claim that arises outside the forum state and bears no connection to the 

defendant’s contacts with the forum.

29. Jurisdiction: Words and Phrases. Specific, or case-linked, jurisdiction 

requires that a claim arise out of or relate to the defendant’s contacts 

with the forum.

30. Jurisdiction. A defendant need not be at home in the forum to be subject to specific personal jurisdiction, but, rather, there must be an affiliation between the forum and the underlying controversy.

31. Jurisdiction: Words and Phrases. Specific personal jurisdiction is 

confined to adjudication of issues deriving from, or connected with, the 

very controversy that establishes jurisdiction. There must be a substantial connection between the defendant’s contacts and the operative facts 

of the litigation.

32. Jurisdiction: Due Process: Contracts. For purposes of personal jurisdiction, it is sufficient for purposes of due process that a suit be based 

on a contract which has substantial connection with that state.

33. Jurisdiction: States. Personal jurisdiction may not be avoided merely 

because a defendant did not physically enter the forum state.

34. Jurisdiction: States: Contracts. To determine whether a defendant’s 

contract supplies the contacts necessary for personal jurisdiction in a 

forum state, a court is to consider the parties’ prior negotiations and 

future contemplated consequences, along with the terms of the contract 

and the parties’ actual course of dealing.

35. States: Real Estate. Generally, a state has a unique interest in adjudicating transactions affecting its land.
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36. Landlord and Tenant: Guaranty: States. While a guaranty of a 

personal debt generally bears no intrinsic connection to any particular 

location, a guaranty to pay and perform a tenant’s obligations under a 

lease of real property uniquely affects the state in which the premises 

are located.

37. Jurisdiction: Due Process: States: Real Estate. While the Due Process 

Clause’s personal jurisdiction analysis no longer bears a rigidly territorial focus, states nevertheless, as coequal sovereigns in a federal system, 

have a special interest in adjudicating disputes relating to the real property with their borders.

38. Jurisdiction: Guaranty: States. Where a guarantor takes on obligations that are uniquely tied to and uniquely affect a particular location, it 

is not unreasonable for courts of that state to exercise personal jurisdiction over the guarantor in connection with claims arising from or related 

to those obligations.

39. Jurisdiction: States: Contracts. While the minimum contacts personal 

jurisdiction analysis is distinct from a choice-of-law analysis, a choiceof-law contractual provision in favor of the forum state’s law is a relevant contact with the forum.

40. Contracts: Attorney Fees: Public Policy. In the absence of a uniform 

course of procedure or authorization by statute, contractual agreements for attorney fees are against public policy and will not be judicially enforced.

Appeal from the District Court for Douglas County: Leig

Ann Retelsdorf, Judge. Affirmed in part, and in part rever

and remanded for further proceedings.

David L. Welch and Jeffrey A. Nix, of Pansing, Hogan, 

Ernst & Bachman, L.L.P., for appellant.

Michael S. Degan, of Kutak Rock, L.L.P., for appellees.

Heavican, C.J., Cassel, Stacy, Kelch, and F

Cassel, J.

I. INTRODUCTION

When a tenant abandons leased property, a landlord may 

either accept the abandonment, thereby terminating the lease, 

or attempt to relet or sell the property. Here, after the tenant stopped paying rent and the landlord sued, the tenant 
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surrendered the property. The landlord rejected offers by prospective tenants and instead, after lengthy negotiations, sold 

the property.

Following a bench trial on stipulated facts, the district court 

awarded damages to the date the landlord reached a tentative 

agreement to sell rather than to an actual sale date. And the 

court dismissed the tenant’s out-of-state guarantor for lack 

of jurisdiction.

On appeal, we affirm the district court’s damages award 

because, although the landlord did not terminate the lease, the 

duration of finalizing the sale was not reasonable. But because 

the guaranty established sufficient connections to Nebraska, we 

reverse the dismissal of the guarantor.

II. BACKGROUND

1. Partie

The tenant, Lone Star Steakhouse & Saloon of Nebraska, 

Inc. (Lone Star), is a Nebraska corporation. Lone Star leased 

property in west Omaha, Nebraska, to use for the operation of 

a steakhouse restaurant from the landlord, Hand Cut Steaks 

Acquisitions, Inc. (HCS), an Arkansas corporation. LSF5 

Cactus L.L.C. (Cactus), a Delaware limited liability company 

doing business in Texas, is a subsidiary of Lone Star’s parent 

company. Cactus guaranteed the performance of Lone Star’s 

obligations under the lease.

2. Property and Le

to Lone S

In 2010, HCS hired an agent to list and market the property. 

He did so, eventually securing Lone Star as a tenant. Lone 

Star leased the property for a 66-month term, to run from 2010 

through 2016. The lease began with 6 months of free rent, 

followed by rent increasing incrementally. Lone Star was also 

responsible for paying property taxes, property insurance, and 

common area maintenance costs.

The lease contained an attorney fee provision: “In the event 

of litigation between the parties to enforce this Lease, the 
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prevailing party in any such action shall be entitled to recover 

reasonable costs and expenses of suit, including, without limitation, court costs, attorneys’ fees, and discovery costs.”

The lease also contained a choice-of-law provision: “This 

Lease shall be construed, interpreted, and enforced pursuant to the applicable laws of the state in which the Premises 

are located.”

Cactus executed a guaranty of the lease which provided 

that

[Cactus], in consideration of the direct and material benefits that will accrue to [it], and for the purpose of inducing [HCS] to enter into [the lease] with Lone Star . . . , 

a subsidiary of [Cactus], absolutely and unconditionally 

guarantees the payment and performance of, and agrees 

to pay and perform as primary obligor, all liabilities, obligations, and duties (including but not limited to payment 

of rent) imposed upon [Lone Star] under the terms of the 

. . . Lease.

And the lease acknowledged the guaranty signed by Cactus: 

“As an inducement to [HCS] to enter into this Lease, [Lone 

Star] agrees and acknowledges that its obligations under this 

Lease shall be guaranteed . . . by its parent corporation, 

[Cactus], a Delaware limited liability company . . . .” Cactus 

was also an insured under a general liability and workers’ compensation and employers’ liability insurance policy covering 

Lone Star’s restaurant in Omaha.

3. Restaurant Clos

and HCS 

In October 2012, Lone Star notified HCS that it planned to 

shut down its restaurant in 3 weeks. Lone Star continued paying rent through February 2013, but then stopped. In March 

2013, HCS served a notice of default on Lone Star. In April, 

HCS filed suit against Lone Star and Cactus. Later in April, 

HCS demanded that Lone Star surrender the premises. Its 

demand letter stated, “This Notice shall in no way be construed as a termination of [the] Lease or as a relinquishment 
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or waiver by [HCS] as to any rental amounts or other amounts 

due under [the] Lease . . . .” Lone Star surrendered the premises in early May, and the parties executed an acknowledgment 

of tender and receipt of premises agreement.

4. Interest F

Prospective Te

Shortly after Lone Star notified HCS that it planned to close 

the restaurant, HCS began receiving inquiries about the availability of the property.

According to the parties’ trial stipulation, “[HCS] relied 

upon [the agent] to relay communications for purposes of selling or reletting the Premises.” But the parties also stipulated 

that HCS did not hire the agent or anyone else as a broker 

for the purpose of reletting the premises, before or after HCS 

regained control of the premises in May 2013. The agent did 

not do any marketing or list the property for HCS as was done 

in 2010, when he secured Lone Star’s tenancy.

From October 2012 through February 2013, the agent and 

HCS’ owner, Pat Boyd, corresponded with a broker representing a pizza firm about leasing or purchasing the property. The 

broker told HCS that the pizza firm “[w]ants the [p]roperty” 

and made multiple offers for a sale or lease. Boyd said in his 

deposition that he was not interested in the pizza firm because 

he did not find any of its offers acceptable and because he “was 

not interested in their concept.” Boyd also said that he made up 

his mind that he was not interested in the pizza firm as a tenant 

as early as November 2012.

HCS also received two offers in May 2013 from a broker 

on behalf of a restaurant proprietor interested in starting a 

crab restaurant. Regarding the crab restaurant, Boyd testified, 

“This particular concept, we — we weren’t interested in putting in our building.” Boyd also said that he was not interested 

because he learned that the proprietor previously had several 

other restaurant concepts that failed.
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5. Negotiations Wi

Ultimate Buy

Discussions with the ultimate buyer began in December 

2012. In January 2013, the buyer sent HCS an offer to purchase 

the property. HCS rejected the offer and expressed its interest 

in negotiating a lease rather than a sale. They continued to 

negotiate, and in May, the buyer made another offer to purchase the property. Boyd told the buyer he was more interested 

in a lease than a sale of the property. The buyer told Boyd, 

“‘We are too far apart to make a ground lease work here[, 

but w]e can be much more aggressive . . .’” in negotiating a 

purchase. The buyer asked HCS to make a counteroffer for 

the sale of the property. After further negotiations, a letter of 

intent (LOI) outlining the terms of the sale of the property for 

$1.715 million was executed in June 2013. However, it took 

until September 2013 for the parties to finalize the purchase 

agreement for the property and, due to some issues with title 

insurance, until April 2014 to close on the sale.

6. Pretrial Motions and O

Before trial, the district court granted a motion of Cactus, 

the guarantor of Lone Star’s lease, to dismiss it for lack of 

personal jurisdiction. But the court later granted HCS’ motion 

to reconsider its order and allowed limited discovery with 

regard to Cactus’ contacts with Nebraska. After discovery was 

conducted, the court denied Cactus’ renewed motion to dismiss 

and reserved ruling on the issue until trial. The district court 

also granted in part and denied in part HCS’ pretrial motion for 

summary judgment, granting summary judgment on the issue 

of Lone Star’s breach of the lease.

A bench trial was held on stipulated facts on the issue of 

damages, after which the district court issued a “Bench Trial 

Order.” The court concluded that HCS had not accepted Lone 

Star’s surrender of the lease, because HCS’ “actions were 

consistent with a landlord attempting to mitigate its damages.” The court also concluded that “[HCS] took reasonable 
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steps to mitigate its damages after Lone Star’s breach of 

the Lease.”

The district court also addressed the issue of whether a landlord may mitigate its damages by selling, rather than reletting, 

the property:

The Court does not find it reasonable to fault Lone 

Star for the lengthy closing process in the negotiations 

between [HCS] and [the buyer]. Under the theory of contracts, the breaching party is not to be punished for [its] 

breach, but rather, the non-breaching party is to be made 

whole. It would indeed be a punishment for Lone Star to 

pay nearly a year’s worth of damages because the closing 

period between [HCS] and [the buyer] was such a drawnout negotiation. Therefore, for purposes of mitigation 

and damages, the Court finds that the accrual of damages 

ended when [HCS] signed its [LOI] to sell the Premises 

to [the buyer] on June 13, 2013.

The district court awarded money damages against Lone Star 

in the amount of $49,415.27.

The district court also concluded that it lacked personal 

jurisdiction over Cactus and dismissed HCS’ claims against it. 

The district court’s order reserved the issue of attorney fees 

for a later hearing. After the order, HCS moved for attorney 

fees, based on the provision in the lease that attorney fees be 

awarded to the prevailing party in the event of litigation over 

the lease, and moved for a new trial. Lone Star also moved 

for a new trial. The district court overruled HCS’ motions and 

overruled Lone Star’s motion as untimely. HCS filed a timely 

appeal, and Lone Star asserted a cross-appeal.

III. ASSIGNMENTS OF ERROR

HCS claims that the district court erred by (1) “overruling 

the Motion for New Trial and awarding an insufficient amount 

of damages to” HCS, (2) “overruling the Motion for New 

Trial and ruling that . . . Cactus . . . was properly dismissed 

from the action,” and (3) “overruling [HCS’] Motion for attorney’s fees.”
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Lone Star claims that the district court erred by (1) “failing to find that [HCS] accepted Lone Star’s surrender of its 

tenancy, thereby terminating the lease”; (2) “failing to find 

that [HCS] failed to mitigate damages, thereby excusing Lone 

Star’s obligations under the lease”; (3) “finding that Lone Star 

breached the lease”; (4) “awarding damages to [HCS]”; and (5) 

“failing to enter judgment in favor of Lone Star.”

IV. STANDARD OF REVIEW

[1] In a case in which the facts are stipulated, an appellate 

court reviews the case as if trying it originally in order to determine whether the facts warranted the judgment.1

[2] When a jurisdictional question does not involve a factual 

dispute, determination of a jurisdictional issue is a matter of 

law which requires an appellate court to reach a conclusion 

independent from the trial court’s.2

V. ANALYSIS

1. Surrender and Termi

of Leas

Lone Star argues that HCS accepted its surrender of the 

lease, thereby terminating the lease, by retaking the property 

for HCS’ own benefit and selling the property. Lone Star 

claims that the district court’s finding to the contrary was erroneous. HCS claims that it retook possession of the property in 

order to relet the property on Lone Star’s account in order to 

mitigate its damages. We agree with the district court that when 

Lone Star surrendered the property, HCS did not accept Lone 

Star’s offer to terminate the lease.

[3-5] We have held that “‘[a]n abandonment of leased 

premises by the tenant constitutes an offer to terminate the 

lease . . .’” and that “‘whether there has been an acceptance 

1 Klein v. Oakland/Red Oak Holdings, 294 Neb. 535, 883 N.W.2d 699 

(2016).

2 Quality Pork Internat. v. Rupari Food Servs., 267 Neb. 474, 675 N.W.2d 

642 (2004).
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by the landlord of the tenant’s abandonment of the premises 

is largely a matter of intention, and such an acceptance may 

be inferred from acts of the landlord inconsistent with the 

continuance of the lease.’”3 And “[w]hether a surrender and 

acceptance occurred is a question of fact . . . .”4

The relevant evidence of HCS’ intent is its conduct after 

Lone Star surrendered the premises. To a lesser extent, HCS’ 

conduct before Lone Star’s surrender may also be relevant to 

show its intent. The act of retaking possession is itself equivocal as to a lessor’s intent.5

 Such conduct could show an intent 

to accept the tenant’s abandonment, or could show an intent 

to relet the property on the tenant’s account in order to mitigate damages.6

[6-8] None of HCS’ actions were inconsistent with retaking the property for the purpose of reletting it on Lone Star’s 

account in order to mitigate its damages. Lone Star argues that 

“[t]he act of selling, or attempting to sell, the leased premises 

is an act wholly and entirely inconsistent with continuation of 

the lease”7 and thus shows that HCS accepted Lone Star’s surrender. But as we discuss below, a landlord may mitigate its 

damages not only by reletting the property to another tenant, 

but also by selling the property. Thus, like retaking and reletting the premises, the act of attempting to sell and selling the 

property is equivocal. A sale can evince an intent to mitigate 

the landlord’s damages just as easily as it can evince an intent 

to accept the tenant’s surrender. Our review of the record 

shows no actions by HCS that are inconsistent with an intent 

3 Waite Lumber Co., Inc. v. Masid Bros., Inc., 189 Neb. 10, 21, 200 N.W.2d 

119, 126 (1972); 50 C.J.S. Landlord & Tenant §§ 213 and 218 (2006).

4 Signal Management Corp. v. Lamb, 541 N.W.2d 449, 451 (N.D. 1995).

5 Id.; First Wisconsin Trust Co. v. L. Wiemann Co., 93 Wis. 2d 258, 286 

N.W.2d 360 (1980).

6 See, Signal Management Corp. v. Lamb, supra note 4; First Wisconsin 

Trust Co. v. L. Wiemann Co., supra note 5.

7 Brief for appellee Lone Star on cross-appeal at 17.
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to mitigate its damages by retaking and reletting or selling the 

property. Where a landlord’s actions are not inconsistent with 

an intent to mitigate its damages, we will not presume that the 

landlord intended to accept the tenant’s surrender and terminate 

the lease.8

Moreover, in divining HCS’ intent with regard to the surrender of the lease, we can look to its own words. HCS expressly 

stated that it was not terminating the lease when it demanded 

that Lone Star surrender the property. In the notice to quit, 

HCS wrote that its notice “shall in no way be construed as a 

termination of [the] Lease or as a relinquishment or waiver by 

[HCS] as to any rental amounts or other amounts due under 

[the] Lease for the remainder of the term, or until [HCS] is able 

to obtain a satisfactory tenant . . . .” HCS’ own words were 

unequivocal that its demand for the surrender of the property 

was not a termination of the lease.

Because HCS’ actions were not inconsistent with an intent 

to retake the property for the purpose of mitigating its damages after Lone Star’s breach by reletting or selling the property, and because HCS expressly stated that it did not intend 

to terminate the lease, we conclude that HCS did not accept 

Lone Star’s offer to terminate the lease through its abandonment of the property. We affirm the district court’s conclusion 

on this issue.

2. Mitigation of Dama

HCS argues that the district court erred in awarding it damages only through the date that HCS and the buyer executed 

the LOI for the sale of the property. HCS argues that this is 

inconsistent with the court’s conclusion that it acted reasonably to mitigate its damages. Lone Star argues that HCS failed 

to make reasonable efforts to relet the property in order to 

mitigate its damages when it rejected bona fide offers to lease 

the property and instead sought to sell the property—which 

took a considerable time to consummate.

8 See Signal Management Corp. v. Lamb, supra note 4.
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[9-11] This court has held that “a landlord may not unreasonably refuse to accept a qualified and suitable substitute tenant for the purpose of mitigating the damages recoverable from 

a tenant who has abandoned the leased premises prior to the 

expiration of the term.”9 We have also explained:

A landlord has a duty to relet the premises in order to 

mitigate damages when a tenant abandons the premises 

prior to the expiration of a lease. . . . This duty to mitigate requires that the landlord take all reasonable steps to 

reduce his damages. . . . In a landlord’s action to recover 

unpaid rent upon a tenant’s abandonment of the premises 

prior to the end of the lease term, the tenant has the burden to show that the landlord unreasonably failed to relet 

the premises and mitigate damages.10

This case presents a related question: If a landlord must 

make reasonable efforts to mitigate damages after a tenant’s 

abandonment by seeking to relet the leased premises, may the 

landlord instead seek to mitigate by selling the property? While 

we suggested that selling is a viable option for mitigation in 

our opinion in Properties Inv. Group v. JBA, Inc.,

11 wherein we 

approved of a landlord’s mitigation efforts and said that “[the 

landlord’s] evidence shows that all of the steps it took to sell or 

lease the property were reasonable,” we have yet to explicitly 

decide the question.

[12,13] Courts in other jurisdictions have concluded that a 

landlord may mitigate after a tenant abandons by selling the 

9 Bernstein v. Seglin, 184 Neb. 673, 677, 171 N.W.2d 247, 250 (1969).

10 Hilliard v. Robertson, 253 Neb. 232, 237, 570 N.W.2d 180, 183 (1997). 

See, also, Bachman v. Easy Parking of America, 252 Neb. 325, 562 

N.W.2d 369 (1997); Middagh v. Stanal Sound Ltd., 234 Neb. 576, 452 

N.W.2d 260 (1990), supplemented 235 Neb. 433, 455 N.W.2d 762; S.N. 

Mart, Ltd. v. Maurices Inc., 234 Neb. 343, 451 N.W.2d 259 (1990).

11 Properties Inv. Group v. JBA, Inc., 242 Neb. 439, 446, 495 N.W.2d 624, 

629 (1993) (emphasis supplied).
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property.12 The theory behind allowing a sale to mitigate the 

damages in a breach of a lease by an abandoning tenant is that 

“the sale price approximate[s] the value of the future rentals.”13

We agree with these authorities and hold that after a tenant has 

abandoned the leased premises, a landlord may satisfy its duty 

to mitigate damages by retaking the premises and making reasonable efforts to relet the premises on the tenant’s account, to 

sell the property, or both. And a landlord may generally recover 

unpaid rent and expenses due under the lease from the time 

of the tenant’s breach through the time the sale of the property is completed, plus any commercially reasonable expenses 

incurred in order to procure a new tenant or buyer.14

[14,15] But a landlord’s efforts must be commercially 

reasonable under the circumstances.15 In order to determine 

whether HCS’ efforts to lease or sell the property were reasonable, we will look at its conduct beginning at the time its duty 

to mitigate arose, when Lone Star surrendered the property 

to HCS.16

[16] We need not, and do not, address the adequacy of 

HCS’ efforts to find a new tenant between the time Lone Star 

informed HCS that it would be ceasing operation of its restaurant in October 2012 and the time HCS retook possession 

of the property in May 2013. Lone Star continued to pay rent 

12 See, e.g., Krasne v. Tedeschi and Grasso, 436 Mass. 103, 762 N.E.2d 

841 (2002); McGuire v. City of Jersey City, 125 N.J. 310, 593 A.2d 309 

(1991).

13 McGuire v. City of Jersey City, supra note 12, 125 N.J. at 320, 593 A.2d 

at 314.

14 Middagh v. Stanal Sound Ltd., supra note 10; Noble v. Kerr, 123 Ga. App. 

319, 180 S.E.2d 601 (1971), disapproved on other grounds, Continental 

Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973). See, 

also, Lu v. Grewal, 130 Cal. App. 4th 841, 30 Cal. Rptr. 3d 623 (2005).

15 Tech Center 2000, LLC v. Zrii, LLC, 363 P.3d 566 (Utah App. 2015); 

Geller v. Kinney, 980 N.E.2d 390 (Ind. App. 2012).

16 Miller v. Burnett, 54 Kan. App. 2d 228, 397 P.3d 448 (2017). See, also, 

Hilliard v. Robertson, supra note 10.
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until March 2013 and remained in possession of the property 

until May. Until there was an abandonment or tender of the 

property by Lone Star, HCS had no duty to mitigate its damages by reletting or selling the property.17

HCS and Lone Star executed an acknowledgment of tender 

and receipt, a formal acknowledgment of Lone Star’s surrender 

of the property to HCS, on May 2, 2013. Through the month 

of May, HCS was engaged in active negotiations with the ultimate buyer to lease or sell the property. They negotiated and 

executed an LOI by mid-June. We conclude that HCS’ initial 

efforts to mitigate its damages by leasing or selling the property, through the date of the LOI, were reasonable.

But it took another 10 months from that time until the sale 

was completed in April 2014. The rent that accumulated during 

this 10-month period is approximately $90,000, not to mention other expenses. HCS argues that these delays were not its 

fault, claiming that “[a]ny delays were the result of [the buyer], 

which is notorious for delays in transactions such as these.”18

But choosing to sell the property to a buyer that in HCS’ own 

words was “notorious” for delays, to the exclusion of pursuing 

other bona fide offers to lease the property, was not a commercially reasonable way to mitigate damages. Instead, these 

delays were attributable to HCS’ choice to pursue a deal with 

that buyer. And HCS chose this lengthy path with the knowledge that it had bona fide offers to lease the property from 

other suitors.

Under our de novo standard of review of this bench trial on 

stipulated facts,19 we conclude that HCS’ initial efforts to lease 

or sell the property were reasonable, but that the delay after the 

execution of the LOI was not reasonable. This conclusion is 

driven by the specific facts presented.

17 See Miller v. Burnett, supra note 16. See, also, Hilliard v. Robertson, 

supra note 10.

18 Brief for appellant at 19.

19 Klein v. Oakland/Red Oak Holdings, supra note 1.
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[17] To be clear, we are not establishing a legal rule that 

where a landlord mitigates its damages after a tenant’s abandonment by selling the property, damages stop accruing at the 

time the landlord executes an LOI for the sale of the property. 

If the landlord’s efforts to mitigate are reasonable under all the 

circumstances—including reasonable in time—damages will 

ordinarily run until the date of sale.20 Our conclusion is simply 

that on the facts of this case, HCS’ efforts to mitigate were reasonable only up to a certain point. Thus, we affirm the district 

court’s award of damages for unpaid rent.

We also affirm the district court’s award of damages based 

on amounts due under the lease for common area maintenance, 

utilities, repairs and maintenance, taxes, and insurance. The 

calculation of these damages turns on the date at which the 

damages under the lease stopped accruing. Because we affirm 

the district court’s conclusion that damages ran through June 

13, 2013, the date of the LOI for sale to the ultimate buyer, 

we affirm the district court’s calculation of these expenses 

as well.

We also affirm the district court’s denial of damages for 

HCS’ “[l]andlord [c]ontribution” under the lease of 6 months’ 

free rent at the beginning of the term. Providing this free rent 

at the beginning of the term was part of the bargained-for 

exchange that HCS agreed to under the lease. As the district 

court pointed out, nothing in the lease provides that Lone Star 

must repay the value of this free rent in the event it breached 

the lease. To allow HCS to recover damages for the value of 

this free rent in addition to damages for the rent due under 

the lease would be to allow a double recovery, putting it in 

a better position than it would have been had Lone Star not 

breached the contract. We affirm the district court’s award 

of damages.

20 McGuire v. City of Jersey City, supra note 12; Noble v. Kerr, supra

note 14.
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3. Personal Jurisdic

HCS claims the district court erred in concluding that the 

court lacked personal jurisdiction over Cactus and consequently 

dismissing its claim against Cactus.

In the guaranty, Cactus “absolutely and unconditionally 

guarantee[d] the payment and performance of, and agree[d] 

to pay and perform as primary obligor, all liabilities, obligations, and duties (including but not limited to payment of rent) 

imposed upon [Lone Star] under the terms of the . . . Lease.” 

The guaranty stated that it was made by Cactus “in consideration of the direct and material benefits that will accrue to 

[Cactus], and for the purpose of inducing [HCS] to enter into” 

the lease with Lone Star.

The lease itself acknowledged the guaranty, providing that 

“[a]s an inducement to [HCS] to enter into this Lease, [Lone 

Star] agrees and acknowledges that its obligations under this 

Lease shall be guaranteed . . .” by Cactus. The lease provided 

that it “shall be construed, interpreted, and enforced pursuant 

to the applicable laws of the state in which the Premises are 

located,” i.e., Nebraska law. Cactus was also a subsidiary of 

Lone Star’s parent company. And Cactus was a named insured 

in a certificate of liability insurance covering the property and 

operation of the Lone Star restaurant.

HCS argues that these contacts by Cactus with Nebraska are 

sufficient for the exercise of personal jurisdiction over Cactus 

in Nebraska and that the district court erred in dismissing its 

claim against Cactus. We agree.

(a) Minimum Contacts Analysis

[18,19] Personal jurisdiction is the power of a tribunal to 

subject and bind a particular person or entity to its decisions.21

Courts’ ability to validly exercise personal jurisdiction is not 

without limit. The Due Process Clause of the 14th Amendment 

21 Quality Pork Internat. v. Rupari Food Servs., supra note 2. See, generally, 

Larry L. Teply & Ralph U. Whitten, Civil Procedure, ch. 3 (5th ed. 2013) 

(discussing personal jurisdiction generally).
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to the U.S. Constitution bars a court from exercising personal 

jurisdiction over an out-of-state defendant, served with process 

outside the state,22 unless that defendant has sufficient ties to 

the forum state.23

[20] A two-step analysis is used to determine whether a 

Nebraska court may validly exercise personal jurisdiction over 

an out-of-state defendant.24 First, a court must consider whether 

Nebraska’s long-arm statute25 authorizes the exercise of personal jurisdiction over the defendant.26 Second, a court must 

consider whether the exercise of personal jurisdiction over the 

defendant comports with due process.27

[21] Nebraska’s long-arm statute authorizes courts to exercise personal jurisdiction over any person “[w]ho has any . . . 

contact with or maintains any . . . relation to this state to afford 

a basis for the exercise of personal jurisdiction consistent with 

the Constitution of the United States.”28 Thus, if a Nebraska 

court’s exercise of personal jurisdiction would comport with 

the Due Process Clause of the 14th Amendment, it is authorized by the long-arm statute.29 Although in its brief HCS also 

asserted authorization under § 25-536(1)(f), at oral argument, it 

abandoned that argument.

[22-24] To satisfy the Due Process Clause, a court may 

only exercise personal jurisdiction over a defendant that is 

not present in the forum state if that defendant has “minimum 

contacts” with the forum such that the exercise of jurisdiction 

22 See Burnham v. Superior Court of Cal., Marin County, 495 U.S. 604, 110 

S. Ct. 2105, 109 L. Ed. 2d 631 (1990) (instate service of process).

23 See Internat. Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. 

Ed. 95 (1945).

24 See Quality Pork Internat. v. Rupari Food Servs., supra note 2.

25 Neb. Rev. Stat. § 25-536 (Reissue 2016).

26 Quality Pork Internat. v. Rupari Food Servs., supra note 2.

27 Id.

28 § 25-536(2).

29 See, id.; Quality Pork Internat. v. Rupari Food Servs., supra note 2.
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“does not offend ‘traditional notions of fair play and substantial justice.’”30 To constitute sufficient minimum contacts, 

“the defendant’s conduct and connection with the forum State 

[must be] such that he [or she] should reasonably anticipate 

being haled into court there.”31 Whether a defendant’s contacts 

with the forum state are sufficient to support the exercise of 

personal jurisdiction “will vary with the quality and nature 

of the defendant’s activity, but it is essential in each case that 

there be some act by which the defendant purposefully avails 

itself of the privilege of conducting activities within the forum 

State, thus invoking the benefits and protections of its laws.”32

Thus, “[j]urisdiction is proper . . . where the [defendant’s] contacts proximately result from actions by the defendant [himself or herself] that create a ‘substantial connection’ with the 

forum State.”33

Two primary purposes are served by the requirement of 

minimum contacts with the forum.34 First, “[i]t protects the 

defendant against the burdens of litigating in a distant or 

inconvenient forum.”35 The burden on the defendant is always 

of “primary concern.”36 And second, the minimum contacts 

inquiry “acts to ensure that the States, through their courts, do 

not reach out beyond the limits imposed on them by their status 

as coequal sovereigns in a federal system.”37

30 Internat. Shoe Co. v. Washington, supra note 23, 326 U.S. at 316.

31 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 

559, 62 L. Ed. 2d 490 (1980).

32 Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 

(1958).

33 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 85 

L. Ed. 2d 528 (1985). See, also, Walden v. Fiore, ___ U.S. ___, 134 S. Ct. 

1115, 188 L. Ed. 2d 12 (2014).

34 See World-Wide Volkswagen Corp. v. Woodson, supra note 31.

35 Id., 444 U.S. at 292.

36 Id.

37 Id. See, also, Bristol-Myers Squibb v. Superior Ct. of CA, ___ U.S. ___, 

137 S. Ct. 1773, 198 L. Ed. 2d 395 (2017).
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[25] In the minimum contacts analysis, courts will consider 

the burden on a defendant in light of other considerations, such 

as (1) “the forum State’s interest in adjudicating the dispute,” 

(2) “the plaintiff’s interest in obtaining convenient and effective relief,” (3) “the interstate judicial system’s interest in 

obtaining the most efficient resolution of controversies,” and 

(4) “the shared interest of the several States in furthering fundamental substantive social policies.”38 Consideration of these 

factors may “sometimes serve to establish the reasonableness 

of jurisdiction upon a lesser showing of minimum contacts than 

would otherwise be required.”39

[26] The nature and quality of a defendant’s contacts with 

the forum state necessary to support the exercise of personal 

jurisdiction depend on the connection between the contacts and 

the claim being asserted.40 The U.S. Supreme Court has identified two categories of personal jurisdiction, “general jurisdiction” and “specific jurisdiction.”41

[27,28] General, or all-purpose, jurisdiction is jurisdiction 

arising where a defendant’s “‘affiliations with the State are 

so “continuous and systematic” as to render [the defendant] 

essentially at home in the forum State.’”42 Where a court has 

general personal jurisdiction over a defendant, it can adjudicate any claim against the defendant—even a claim that arises 

38 World-Wide Volkswagen Corp. v. Woodson, supra note 31, 444 U.S. at 

292.

39 Burger King Corp. v. Rudzewicz, supra note 33, 471 U.S. at 477.

40 See, generally, Arthur T. von Mehren & Donald T. Trautman, Jurisdiction 

to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121 (1966) 

(general and specific jurisdiction).

41 See Bristol-Myers Squibb v. Superior Ct. of CA, supra note 37, 137 S. Ct. 

at 1780.

42 Id., 137 S. Ct. at 1785 (Sotomayor, J., dissenting). See, also, Goodyear 

Dunlop Tires Operations, S. A. v. Brown, 564 U.S. 915, 131 S. Ct. 2846, 

180 L. Ed. 2d 796 (2011); Helicopteros Nacionales de Colombia v. Hall, 

466 U.S. 408, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984); Quality Pork 

Internat. v. Rupari Food Servs., supra note 2.
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outside the forum state and bears no connection to the defendant’s contacts with the forum.43

[29-31] By contrast, specific, or case-linked, jurisdiction 

requires that a claim “‘aris[e] out of or relat[e] to the defendant’s contacts with the forum.’”44 A defendant need not be 

“‘at home’” in the forum to be subject to specific personal 

jurisdiction, but, rather, there “must be ‘an affiliation between 

the forum and the underlying controversy . . . .’”45 “‘[S]pecific 

[personal] jurisdiction is confined to adjudication of issues 

deriving from, or connected with, the very controversy that 

establishes jurisdiction.’”46 Thus, “there must be a substantial 

connection between [the defendant’s] contacts and the operative facts of the litigation.”47

Cactus, a Delaware limited liability company doing business 

in Texas, clearly did not have “‘“continuous and systematic”’” 

contacts with Nebraska; nor was it “‘essentially at home’” in 

Nebraska.48 Rather, HCS asserts that the district court had specific personal jurisdiction over Cactus. Thus, the relevant ties 

between Cactus and Nebraska are those that bear some relation 

to this case. Cactus’ unrelated contacts with Nebraska, or lack 

thereof, have no bearing on our specific personal jurisdiction analysis.

43 See Bristol-Myers Squibb v. Superior Ct. of CA, supra note 37.

44 Id., 137 S. Ct. at 1780 (emphasis in original). See, also, Daimler AG v. 

Bauman, ___ U.S. ___, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014); Quality 

Pork Internat. v. Rupari Food Servs., supra note 2.

45 Bristol-Myers Squibb v. Superior Ct. of CA, supra note 37, 137 S. Ct. at 

1780. See, also, Goodyear Dunlop Tires Operations, S. A. v. Brown, supra

note 42.

46 Bristol-Myers Squibb v. Superior Ct. of CA, supra note 37, 137 S. Ct. at 

1780 (quoting Goodyear Dunlop Tires Operations, S. A. v. Brown, supra

note 42).

47 Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 585 (Tex. 2007).

48 See Bristol-Myers Squibb v. Superior Ct. of CA, supra note 37, 137 S. Ct. 

at 1785 (Sotomayor, J., dissenting).
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Two U.S. Supreme Court cases provide guidance for analyzing minimum contacts for specific personal jurisdiction in 

cases involving contract claims. In McGee v. International 

Life Ins. Co.,49 the Court concluded that a California court 

could exercise personal jurisdiction over a Texas life insurance company for a claim arising from a life insurance contract issued to a California resident. A California resident 

purchased a life insurance policy from an Arizona insurer.50

Several years later, a Texas insurer assumed all of the 

Arizona company’s life insurance obligations.51 The Texas 

insurer sent a reinsurance certificate to the California resident, offering to insure him under the same terms as his prior 

policy, which he accepted.52 The California resident continued to pay his insurance premiums by mail to the insurer’s 

office in Texas.53 The Texas insurer did no other business 

in California and had no agents or offices in California.54

When the California resident died, the Texas insurer refused 

to pay the beneficiary under the policy.55 The beneficiary 

sued the Texas insurer in California state court.56 The insurer 

contended the California court lacked personal jurisdiction 

over it.57

[32] In spite of the Texas insurer’s lack of other connections to California, the Court concluded that “[i]t is sufficient 

for purposes of due process that the suit was based on a 

49 McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 

2d 223 (1957).

50 Id.

51 Id.

52 Id.

53 Id.

54 Id.

55 Id.

56 Id.

57 Id.
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contract which had substantial connection with that State.”58

The Court reasoned:

The contract was delivered in California, the premiums 

were mailed from there and the insured was a resident 

of that State when he died. It cannot be denied that 

California has a manifest interest in providing effective 

means of redress for its residents when their insurers 

refuse to pay claims.59

The Court concluded that the California court’s exercise of 

personal jurisdiction did not violate the Due Process Clause.60

[33] In Burger King Corp. v. Rudzewicz,

61 the Court concluded that a Florida court could validly exercise personal 

jurisdiction over a Michigan defendant.62 The defendant operated a restaurant franchise in Michigan.63 The franchising 

corporation, which maintained its headquarters in Florida, 

sued the Michigan franchisee for breach of the franchise 

agreement in Florida court.64 The franchisee argued that the 

Florida court could not validly exercise personal jurisdiction 

over him; after all, he maintained no offices in Florida and 

had never even visited Florida.65 But the Court rejected this 

argument, reasoning that “this franchise dispute grew directly 

out of ‘a contract which had a substantial connection with that 

State.’”66 The Court said that personal jurisdiction “may not be 

avoided merely because the defendant did not physically enter 

the forum State.”67 By seeking and obtaining a franchise 

58 Id., 355 U.S. at 223.

59 Id.

60 McGee v. International Life Ins. Co., supra note 49.

61 Burger King Corp. v. Rudzewicz, supra note 33.

62 Id.

63 Id.

64 Id.

65 Id.

66 Id., 471 U.S. at 479 (emphasis in original).

67 Id., 471 U.S. at 476 (emphasis in original).
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agreement with the corporation, the Court said, the defendant 

“deliberately ‘reach[ed] out beyond’ Michigan and negotiated with a Florida corporation for the purchase of a longterm franchise and the manifold benefits that would derive 

from affiliation with a nationwide organization.”68 Thus, the 

Court concluded that the exercise of personal jurisdiction by a 

Florida court did not violate the Due Process Clause.69

(b) Cactus’ Contacts With Nebraska

Several reasons support our conclusion that Cactus 

“‘reach[ed] out’”70 to Nebraska and “purposefully avail[ed] 

itself of the privilege of conducting activities within”71

Nebraska, “thus invoking the benefits and protections of its 

laws,”72 such that it “should reasonably anticipate being haled 

into court”73 in Nebraska in connection with claims arising 

from the lease and guaranty.

First, as both the guaranty and lease expressly acknowledged, the purpose of Cactus’ guaranty was to induce HCS to 

enter into the agreement with Lone Star, a Nebraska corporation, to lease the Nebraska property for the operation of a business in Nebraska. Unlike a contract that merely has incidental 

effects in a particular state, Cactus executed this guaranty for 

the express purpose of inducing the lease of Nebraska property 

to a Nebraska business.

In Quality Pork Internat. v. Rupari Food Servs.,

74 we concluded that the defendant had sufficient minimum contacts 

with Nebraska to justify the exercise of personal jurisdiction. 

68 Id., 471 U.S. at 479-80.

69 Burger King Corp. v. Rudzewicz, supra note 33.

70 See id., 471 U.S. at 479.

71 See Hanson v. Denckla, supra note 32, 357 U.S. at 253.

72 See id.

73 See World-Wide Volkswagen Corp. v. Woodson, supra note 31, 444 U.S. at 

297.

74 Quality Pork Internat. v. Rupari Food Servs., supra note 2.
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Under the oral contract at issue in that case, the defendant, a 

Florida food business, arranged for the plaintiff, a Nebraska 

producer of pork products, to ship products to a Texas food 

distributor.75 The Nebraska plaintiff had previously done business with the Texas food distributor, but stopped selling to it 

after its account became delinquent.76 The Nebraska plaintiff 

agreed to ship products to the Texas food distributor because of 

the Florida defendant’s agreement to pay for the orders.77 After 

paying for the first two orders, the defendant failed to pay for 

the third.78 The Nebraska plaintiff sued in Nebraska court, and 

the Florida defendant objected to the court’s exercise of personal jurisdiction over it.79

[34] We concluded that the Florida defendant had sufficient minimum contacts with Nebraska.80 We said that “[t]o 

determine whether a defendant’s contract supplies the contacts necessary for personal jurisdiction in a forum state, a 

court is to consider the parties’ prior negotiations and future 

contemplated consequences, along with the terms of the contract and the parties’ actual course of dealing.”81 We noted 

that “[the Florida defendant] induced [the Nebraska plaintiff] to ship products to [the Texas distributor]” with which 

it had previously ceased doing business.82 We reasoned that 

“[b]y purposefully conducting business with [the Nebraska 

plaintiff], [the Florida defendant] could reasonably anticipate that it might be sued in Nebraska if it failed to pay for 

products ordered from [the Nebraska plaintiff].”83 We said 

75 Id.

76 Id.

77 Id.

78 Id.

79 Id.

80 Id.

81 Id. at 484, 675 N.W.2d at 651.

82 Id.

83 Id. at 485, 675 N.W.2d at 652.
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that “[w]here a defendant who has purposefully directed his 

activities at forum residents seeks to defeat jurisdiction, he 

must present a compelling case that the presence of some other 

consideration would render jurisdiction unreasonable,” and we 

found no such compelling case.84

Cactus’ guaranty presents an inducement similar, though 

not identical, to that in Quality Pork Internat.

85 While in 

Quality Pork Internat., the out-of-state defendant induced a 

Nebraska business to do business with an out-of-state third 

party, here Cactus induced an out-of-state business to lease 

Nebraska property to a Nebraska business. But both here and 

in Quality Pork Internat., the defendant purposefully reached 

out to induce a particular action within the forum state. When 

making such an inducement, Cactus should have reasonably 

anticipated being haled into Nebraska courts in the event that 

the Nebraska lessee of the Nebraska property failed to perform its obligations under the lease, the performance of which 

Cactus guaranteed.

[35] Second, Nebraska has a significant interest in having the dispute over this guaranty of the lease of Nebraska 

property adjudicated in Nebraska courts. Unlike a situation in 

which out-of-state parties agree for one party to guarantee the 

personal debt of a third party who happens to be a Nebraska 

resident, Nebraska has a unique interest in adjudicating transactions affecting Nebraska land. And a “‘forum State’s interest 

in adjudicating the dispute,’” among other considerations, may 

“sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would 

otherwise be required.”86

Importantly, Cactus did not merely guarantee the payment 

of rent due under the lease, but “agree[d] to pay and perform as primary obligor, all liabilities, obligations, and duties 

84 Id.

85 See Quality Pork Internat. v. Rupari Food Servs., supra note 2.

86 Burger King Corp. v. Rudzewicz, supra note 33, 471 U.S. at 477.
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(including but not limited to payment of rent) imposed upon” 

Lone Star under the lease. Those additional duties—which 

Cactus agreed to perform “as primary obligor”—included payment of utility services and real estate taxes; maintaining 

property, liability, and workers’ compensation insurance; and 

maintaining and repairing the entire premises, including landscaping, sidewalks, and parking area, in a “first class manner 

and condition.”

[36,37] While a guaranty of a personal debt generally bears 

no intrinsic connection to any particular location, a guaranty 

to pay and perform a tenant’s obligations under a lease of real 

property uniquely affects the state in which the premises are 

located.87 Real property, of course, is always and inevitably 

within the territorial borders of the state in which it lies. While 

the Due Process Clause’s personal jurisdiction analysis no 

longer bears a “rigidly territorial focus,”88 states nevertheless, 

as “coequal sovereigns in a federal system,”89 have a special 

interest in adjudicating disputes relating to the real property 

within their borders.90

[38] Where a guarantor takes on obligations that are uniquely 

tied to and uniquely affect a particular location, it is not unreasonable for courts of that state to exercise personal jurisdiction over the guarantor in connection with claims arising from 

or related to those obligations.91 Cactus guaranteed the performance of Lone Star’s contractual obligations to pay rent 

for the lease of Nebraska property, to pay Nebraska property 

taxes, to maintain in good repair the Nebraska property, and 

87 See, generally, Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 

2d 683 (1977).

88 Daimler AG v. Bauman, supra note 44, 134 S. Ct. at 755.

89 World-Wide Volkswagen Corp. v. Woodson, supra note 31, 444 U.S. at 292. 

See, also, Bristol-Myers Squibb v. Superior Ct. of CA, supra note 37.

90 See, generally, Shaffer v. Heitner, supra note 87.

91 See, generally, Burger King Corp. v. Rudzewicz, supra note 33; McGee v. 

International Life Ins. Co., supra note 49.
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to maintain property and liability insurance for the Nebraska 

property and Lone Star’s Nebraska business. The guaranty 

of these obligations was such that Cactus “should reasonably 

anticipate being haled into court”92 in Nebraska in the event of 

litigation over the guaranty and lease.

[39] Third, Cactus guaranteed the performance of Lone 

Star’s obligations under the lease, which obligations were 

governed by Nebraska law pursuant to the lease’s choice-oflaw provision. Cactus “agree[d] to pay and perform as primary 

obligor, all liabilities, obligations, and duties” of the tenant 

under a lease governed by Nebraska law. While the minimum contacts personal jurisdiction analysis is distinct from a 

choice-of-law analysis, a choice-of-law contractual provision 

in favor of the forum state’s law is a relevant contact with 

the forum.93

In Burger King Corp., the Court relied on the franchise 

agreement’s choice-of-law provision to conclude that jurisdiction was proper, stating that the provision “reinforced [the 

defendant’s] deliberate affiliation with the forum State and the 

reasonable foreseeability of possible litigation there.”94 The 

Court further said that the choice-of-law provision showed 

that the defendant “‘purposefully availed himself of the benefits and protections of Florida’s laws’ by entering into contracts expressly providing that those laws would govern franchise disputes.”95

By “absolutely and unconditionally guarantee[ing] the payment and performance of, and agree[ing] to pay and perform 

as primary obligor, all liabilities, obligations, and duties . . . 

imposed upon [Lone Star] under the terms of the . . . Lease,” 

which duties and obligations were governed by Nebraska 

law, Cactus “purposefully avail[ed] itself of the privilege of 

92 World-Wide Volkswagen Corp. v. Woodson, supra note 31, 444 U.S. at 297.

93 Burger King Corp. v. Rudzewicz, supra note 33.

94 Id., 471 U.S. at 482.

95 Id.
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conducting activities within [Nebraska], thus invoking the benefits and protections of [Nebraska’s] laws.”96

Finally, the fact that Cactus was a named insured on the 

insurance policy covering the property and the Lone Star 

business is a relevant, though less significant, contact with 

Nebraska. But Cactus’ relationship with Lone Star as a subsidiary of Lone Star’s parent company is not a relevant contact 

where there has been no attempt to “pierce the corporate veil”97

and impute Lone Star’s Nebraska residency or Nebraska contacts to Cactus.

In sum, because Cactus guaranteed the full performance of 

a Nebraska business’ obligations of a lease of Nebraska property in order to induce HCS to enter into that lease, which was 

governed by Nebraska law, Cactus has sufficient minimum 

contacts with Nebraska to justify the exercise of personal jurisdiction over it by Nebraska’s courts. We reverse the district 

court’s dismissal of Cactus and remand the cause for further 

proceedings consistent with this opinion.

4. Attorney F

The lease between HCS and Lone Star provided for the 

award of attorney fees to the prevailing party in the event of 

litigation to enforce the lease. HCS claims that the district court 

erred in overruling its motion for attorney fees. We disagree.

[40] Since the 1800’s, this court has refused to enforce 

contractual provisions providing for the award of attorney 

fees for the prevailing party, instead holding to the “American 

Rule” that each party pay its own costs.98 And we recently 

reaffirmed our position that “in the absence of a uniform 

96 See Hanson v. Denckla, supra note 32, 357 U.S. at 253.

97 See, generally, Global Credit Servs. v. AMISUB, 244 Neb. 681, 686, 508 

N.W.2d 836, 842 (1993).

98 See, Stewart v. Bennett, 273 Neb. 17, 727 N.W.2d 424 (2007); Parkert v. 

Lindquist, 269 Neb. 394, 693 N.W.2d 529 (2005); Security Co. v. Eyer, 36 

Neb. 507, 54 N.W. 838 (1893); Dow v. Updike, 11 Neb. 95, 7 N.W. 857 

(1881).
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course of procedure or authorization by statute, contractual 

agreements for attorney fees are against public policy and 

will not be judicially enforced.”99 We decline to depart from 

our long-held jurisprudence, and we affirm the district court’s 

overruling of HCS’ motion for attorney fees.

5. HCS’ Motion for New 

HCS’ appeal of the overruling of its motion for new trial is 

premised on the same issues addressed in this opinion. Thus, 

we need not address it separately.

VI. CONCLUSION

For the foregoing reasons, we affirm the district court’s 

award of damages to HCS and the court’s denial of HCS’ 

requested attorney fees. We reverse the district court’s dismissal of Cactus and remand the cause for further proceedings 

on HCS’ claim against Cactus.

 Affirmed in part, and in part revers

remanded for further proceedin

Wright and Miller-Lerman, JJ., not participat

99 Stewart v. Bennett, supra note 98, 273 Neb. at 22, 727 N.W.2d at 429.