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04/06/2018 09:17 AM CDT

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                                  Nebraska Supreme Court A dvance Sheets
                                          298 Nebraska R eports
                       HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                                         Cite as 298 Neb. 705

                         H and Cut Steaks Acquisitions, Inc., an A rkansas
                            corporation, appellant and cross-appellee,
                               v. Lone Star Steakhouse & Saloon of
                             Nebraska, Inc., a Nebraska corporation,
                                  appellee and cross-appellant, and
                                  LSF5 Cactus, L.L.C., a Delaware
                                 limited liability company, appellee.
                                                    ___ 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 origi-
                    nally 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 jurisdic-
                    tional 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 prem-
                    ises 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 aban-
                    dons 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 relet-
                    ting 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
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              Nebraska Supreme Court A dvance Sheets
                      298 Nebraska R eports
     HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                       Cite as 298 Neb. 705

     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 ter-
     minate the lease.
 9.	 Landlord and Tenant: Abandonment: Damages. A landlord may not
     unreasonably refuse to accept a qualified and suitable substitute ten-
     ant for the purpose of mitigating the damages recoverable from a ten-
     ant 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 land-
     lord’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 surren-
     ders 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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             Nebraska Supreme Court A dvance Sheets
                     298 Nebraska R eports
     HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                       Cite as 298 Neb. 705

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 con-
     tacts 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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              Nebraska Supreme Court A dvance Sheets
                      298 Nebraska R eports
     HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                       Cite as 298 Neb. 705

     in obtaining convenient and effective relief, (3) the interstate judicial
     system’s interest in obtaining the most efficient resolution of contro-
     versies, 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 jurisdic-
     tion 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 essen-
     tially 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 sub-
     ject to specific personal jurisdiction, but, rather, there must be an affili-
     ation 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 substan-
     tial connection between the defendant’s contacts and the operative facts
     of the litigation.
32.	 Jurisdiction: Due Process: Contracts. For purposes of personal juris-
     diction, 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 adjudicat-
     ing transactions affecting its land.
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              Nebraska Supreme Court A dvance Sheets
                      298 Nebraska R eports
     HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                       Cite as 298 Neb. 705

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 territo-
     rial focus, states nevertheless, as coequal sovereigns in a federal system,
     have a special interest in adjudicating disputes relating to the real prop-
     erty with their borders.
38.	 Jurisdiction: Guaranty: States. Where a guarantor takes on obliga-
     tions that are uniquely tied to and uniquely affect a particular location, it
     is not unreasonable for courts of that state to exercise personal jurisdic-
     tion 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 choice-
     of-law contractual provision in favor of the forum state’s law is a rel-
     evant contact with the forum.
40.	 Contracts: Attorney Fees: Public Policy. In the absence of a uniform
     course of procedure or authorization by statute, contractual agree-
     ments for attorney fees are against public policy and will not be judi-
     cially enforced.

   Appeal from the District Court for Douglas County: Leigh
A nn R etelsdorf, Judge. Affirmed in part, and in part reversed
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, K elch, and Funke, JJ.
   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 ten-
ant stopped paying rent and the landlord sued, the tenant
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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
    HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                      Cite as 298 Neb. 705

surrendered the property. The landlord rejected offers by pro-
spective 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. Parties
   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 Lease
                         to Lone Star
   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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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
    HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                      Cite as 298 Neb. 705

prevailing party in any such action shall be entitled to recover
reasonable costs and expenses of suit, including, without limi-
tation, court costs, attorneys’ fees, and discovery costs.”
   The lease also contained a choice-of-law provision: “This
Lease shall be construed, interpreted, and enforced pursu-
ant 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 ben-
      efits that will accrue to [it], and for the purpose of induc-
      ing [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, obli-
      gations, 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’ com-
pensation and employers’ liability insurance policy covering
Lone Star’s restaurant in Omaha.
                    3. R estaurant Closes
                        and HCS Sues
   In October 2012, Lone Star notified HCS that it planned to
shut down its restaurant in 3 weeks. Lone Star continued pay-
ing 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 con-
strued as a termination of [the] Lease or as a relinquishment
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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
    HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                      Cite as 298 Neb. 705

or waiver by [HCS] as to any rental amounts or other amounts
due under [the] Lease . . . .” Lone Star surrendered the prem-
ises in early May, and the parties executed an acknowledgment
of tender and receipt of premises agreement.

                         4. Interest From
                       Prospective Tenants
   Shortly after Lone Star notified HCS that it planned to close
the restaurant, HCS began receiving inquiries about the avail-
ability of the property.
   According to the parties’ trial stipulation, “[HCS] relied
upon [the agent] to relay communications for purposes of sell-
ing 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 represent-
ing 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 put-
ting 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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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
    HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                      Cite as 298 Neb. 705

                     5. Negotiations With
                        Ultimate Buyer
   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 pur-
chase 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 Orders
   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 dam-
ages.” The court also concluded that “[HCS] took reasonable
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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
    HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                      Cite as 298 Neb. 705

steps to mitigate its damages after Lone Star’s breach of
the Lease.”
   The district court also addressed the issue of whether a land-
lord 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 con-
      tracts, 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 drawn-
      out 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 attor-
ney’s fees.”
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
        HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                          Cite as 298 Neb. 705

   Lone Star claims that the district court erred by (1) “fail-
ing 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 deter-
mine 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 Termination
                             of Lease
   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 erro-
neous. 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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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
        HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                          Cite as 298 Neb. 705

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 equivo-
cal 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 miti-
gate damages.6
   [6-8] None of HCS’ actions were inconsistent with retak-
ing 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 sur-
render. 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 relet-
ting 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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               Nebraska Supreme Court A dvance Sheets
                       298 Nebraska R eports
        HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                          Cite as 298 Neb. 705

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 surren-
der 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 dam-
ages after Lone Star’s breach by reletting or selling the prop-
erty, 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 abandon-
ment of the property. We affirm the district court’s conclusion
on this issue.
                   2. Mitigation of Damages
   HCS argues that the district court erred in awarding it dam-
ages 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 reason-
ably 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 unrea-
sonably refuse to accept a qualified and suitable substitute ten-
ant 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 miti-
      gate 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 bur-
      den 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 rea-
sonable 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 prop-
erty 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 reason-
able, 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 res-
taurant 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 dam-
ages 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 ulti-
mate 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 prop-
erty, 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 men-
tion 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 com-
mercially 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 knowl-
edge 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 aban-
donment 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 rea-
sonable 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 Jurisdiction
   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, obliga-
tions, 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 consid-
eration 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 per-
sonal 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 exer-
cise 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 autho-
rized 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 sub-
stantial 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] con-
tacts proximately result from actions by the defendant [him-
self 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 effec-
tive 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 fun-
damental 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 identi-
fied two categories of personal jurisdiction, “general jurisdic-
tion” 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 adjudi-
cate 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 defend
ant’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 defend
ant’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 opera-
tive 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 spe-
cific 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 jurisdic-
tion 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 ana-
lyzing 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 insur-
ance company for a claim arising from a life insurance con-
tract 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 resi-
dent, offering to insure him under the same terms as his prior
policy, which he accepted.52 The California resident contin-
ued 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 connec-
tions 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 con-
cluded that a Florida court could validly exercise personal
jurisdiction over a Michigan defendant.62 The defendant oper-
ated 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 negoti-
ated with a Florida corporation for the purchase of a long-
term 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 acknowl-
edged, the purpose of Cactus’ guaranty was to induce HCS to
enter into the agreement with Lone Star, a Nebraska corpora-
tion, to lease the Nebraska property for the operation of a busi-
ness 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 con-
cluded 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 busi-
ness 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 per-
sonal jurisdiction over it.79
    [34] We concluded that the Florida defendant had suffi-
cient minimum contacts with Nebraska.80 We said that “[t]o
determine whether a defendant’s contract supplies the con-
tacts 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 con-
tract and the parties’ actual course of dealing.”81 We noted
that “[the Florida defendant] induced [the Nebraska plain-
tiff] 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 antici-
pate 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.
                                     - 731 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
        HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                          Cite as 298 Neb. 705

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 per-
form its obligations under the lease, the performance of which
Cactus guaranteed.
   [35] Second, Nebraska has a significant interest in hav-
ing 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 trans-
actions affecting Nebraska land. And a “‘forum State’s interest
in adjudicating the dispute,’” among other considerations, may
“sometimes serve to establish the reasonableness of jurisdic-
tion 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 per-
form 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.
                                      - 732 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
        HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                          Cite as 298 Neb. 705

(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 pay-
ment of utility services and real estate taxes; maintaining
property, liability, and workers’ compensation insurance; and
maintaining and repairing the entire premises, including land-
scaping, 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 unrea-
 sonable for courts of that state to exercise personal jurisdic-
 tion over the guarantor in connection with claims arising from
 or related to those obligations.91 Cactus guaranteed the per
 formance 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.
                                     - 733 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
        HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                          Cite as 298 Neb. 705

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-of-
law 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 mini-
mum 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 jurisdic-
tion 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 ben-
efits and protections of Florida’s laws’ by entering into con-
tracts expressly providing that those laws would govern fran-
chise disputes.”95
    By “absolutely and unconditionally guarantee[ing] the pay-
ment 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.
                                     - 734 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
        HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                          Cite as 298 Neb. 705

conducting activities within [Nebraska], thus invoking the ben-
efits 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 subsid-
iary 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 con-
tacts to Cactus.
   In sum, because Cactus guaranteed the full performance of
a Nebraska business’ obligations of a lease of Nebraska prop-
erty 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 juris-
diction 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 Fees
    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).
                                     - 735 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
        HAND CUT STEAKS ACQUISITIONS v. LONE STAR STEAKHOUSE
                          Cite as 298 Neb. 705

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 Trial
   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 dis-
missal of Cactus and remand the cause for further proceedings
on HCS’ claim against Cactus.
	A ffirmed in part, and in part reversed and
	                remanded for further proceedings.
   Wright and Miller-Lerman, JJ., not participating.

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


448 So.2d 529 (1984)
Richard G. WOODRING, Appellant,
v.
STATE of Florida, Appellee.
No. 82-1489.
District Court of Appeal of Florida, Fifth District.
March 1, 1984.
Rehearing Denied April 16, 1984.
James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.
*530 WATSON, R.O., Associate Judge.
Defendant, Richard Garrett Woodring, was found guilty by a jury of trafficking in cocaine.
The jury instructions were recorded by the trial judge and over objection of the defendant, a tape player and the tape recorded jury instructions were sent to the jury room for use during deliberations.
After four hours of deliberation, the jury sent a note to the judge:
Is the only difference between trafficking in cocaine and possession with intent to sell, manufacture or deliver, the amount of cocaine involved (28 grams)?
The trial judge responded in writing:
[P]lease listen to the tape to determine the elements of the charges.
The record is silent as to whether the attorneys were notified of the jury's question and of the judge's note to the jury. There is no record of a motion for new trial alleging lack of notice nor did defense counsel file any affidavits.
The submission to the jury of tape recorded jury instructions was approved in United States v. Watson, 669 F.2d 1374 (11th Cir.1982). In Dewitt v. State, 442 So.2d 1029 (Fla. 5th DCA 1983), this court affirmed a conviction because no prejudice had been shown in permitting a tape recording of the jury instructions and a tape player to go to the jury room. However, we indicated that such a "practice" should be discouraged.
This case is a good example of why we discourage tape recorded jury instructions. Although the Florida Rules of Criminal Procedure do not prohibit the submission of tape recorded jury instructions to the jury, rule 3.410 provides:
[A]nd the court may give them such additional instructions... . (emphasis added)
A number of cases hold that the giving of additional instructions is optional, but once the court determines the jury should be reinstructed, the judge must reinstruct on all matters about which the jury inquired. Chappell v. State, 423 So.2d 984 (Fla. 3d DCA 1982) and cases cited in Chappell.
The court determined additional instructions were required because the judge referred the jury to the recorded instructions and asked them to listen to the elements of the charges. The court did not give them additional instructions as required by rule 3.410, but left the jury to decide which instructions should be repeated. No one knows whether the jury heard the appropriate instructions or whether they heard any instructions. Such a procedure was prejudicial to the defendant.
Because of the disposition of this case, it is not necessary to consider the other matters raised by defendant.
The judgment and sentence are reversed and the case is remanded for a new trial.
REVERSED and REMANDED.
ORFINGER, C.J., and COWART, J., concur.


                                                                                Opinions of the United
2008 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

3-11-2008

Morrison v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4282

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                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                     No. 06-4282
                                     __________

                               STACEY MORRISON,
                            on behalf of Denzel Morrison,

                                                      Appellant

                                          v.

                     COMMISSIONER OF SOCIAL SECURITY

                                     __________

                  On Appeal from the United States District Court
                             for the District of New Jersey
                             (D.C. Civil No. 05-cv–3426)
                  District Judge: Honorable Dennis M. Cavanaugh
                                      __________

                     Submitted Under Third Circuit LAR 34.1(a)
                                on January 31, 2008

                Before: RENDELL and CHAGARES, Circuit Judges,
                          and POLLAK,* District Judge.

                               (Filed: March 11, 2008)

__________________

   * Honorable Louis H. Pollak, Senior Judge of the United States District Court for the
     Eastern District of Pennsylvania, sitting by designation.
                                       __________

                               OPINION OF THE COURT
                                     __________

RENDELL, Circuit Judge.

       Stacey Morrison, on behalf of her now-seventeen-year-old son, Denzel, appeals the

United States District Court for the District of New Jersey’s affirmance of the

Commissioner of Social Security’s denial of Denzel’s application for child Supplemental

Security Income (“SSI”) benefits.

       Denzel suffers from bronchial asthma; multiple exostoses on different parts of his

skeleton, including his legs, head, and ribs; and reactive depression/dysthymic disorder.

Exostoses are benign bony growths that can cause varying degrees of pain and

discomfort, can reappear if removed through surgery, and can grow to the size of a

baseball. Denzel walks with a limp, apparently due to surgery that he had in 1996 to

excise exostoses. Reactive depression/dysthymic disorder is marked by depressed mood,

blunted affect, periods of restlessness, a soft-spoken nature, and anger episodes.

       Denzel’s application for benefits, filed in early 2003, was denied initially and upon

reconsideration by the local Social Security Administration office. After Ms. Morrison

subsequently requested a hearing, the Administrative Law Judge (“ALJ”) found that

Denzel was not disabled for SSI purposes and thus was not entitled to benefits. Ms.

Morrison appealed to the Appeals Council, which rejected her request to review the

ALJ’s decision. She then appealed to the District Court, which, as noted above, affirmed

                                             2
the denial of benefits. For the reasons discussed below, we will in turn affirm the

judgment of the District Court.

       The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g) and 42 U.S.C.

§ 1383(c)(3) and we now have jurisdiction pursuant to 28 U.S.C. § 1291. In situations

like this, in which the Appeals Council has denied the appellant’s request to review the

ALJ’s denial of benefits, we review the decision of the ALJ. Matthews v. Apfel, 239 F.3d

589, 582 (3d Cir. 2001). In doing so, we apply the same standard as the District Court:

we review all legal issues de novo and all factual findings for substantial evidence. Jones

v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004); Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.

2000). Substantial evidence means “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Jones, 364 F.3d at 503. In order to allow us

to conduct our review, the ALJ must give a reasoned explanation for his decision,

including how he factored in evidence that arguably pointed to the opposite conclusion.

Burnett v. Comm’r, 220 F.3d 112, 119-20 (3d Cir. 2000); Cotter v. Harris, 642 F.2d 700,

705 (3d Cir. 1981). In Jones, we made clear that the purpose of this requirement is “to

ensure sufficient development of the record and explanation of findings to permit

meaningful review.” 364 F.3d at 505. The ALJ does not need “to use particular language

or adhere to a particular format in conducting his analysis.” Id.

       A child under eighteen is only eligible for SSI benefits if (1) he is not doing

substantial gainful activity; (2) he has a medically determinable impairment or

                                              3
combination of impairments that is severe; and (3) the impairment or combination of

impairments meets, medically equals, or functionally equals the severity of one or more of

the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R

§ 416.924. An impairment or combination of impairments functionally equals a listed

impairment if it causes a “marked” limitation in two of six areas of functioning or an

“extreme” limitation in one of those six areas.1 Id. § 416.926a(a). The six areas are

(1) acquiring and using information, (2) attending and completing tasks, (3) interacting

and relating with others, (4) moving about and manipulating objects, (5) caring for

oneself, and (6) health and physical well-being. Id. § 416.926a(b)(1).

       The ALJ found that Denzel was not engaged in substantial gainful activity and that

his three impairments were all severe. However, the ALJ also found that none of the

impairments — whether on their own or in combination with one another — met,

medically equaled, or functionally equaled a listed impairment.

       Of Denzel’s three impairments, there are only listings for asthma. 20 C.F.R. pt.

404, subpt. P, app. 1, §§ 3.03, 103.03. The ALJ found that Denzel’s condition did not

meet these listings, as there was no evidence of pulmonary-function testing, emergency

room visits, inpatient hospitalization, intravenous antibiotics, prolonged inhalation

  1
    A “marked” limitation “interferes seriously with [the child’s] ability to independently
initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2)(i) (emphasis added).
An “extreme” limitation “interferes very seriously with [the child’s] ability to
independently initiate, sustain, or complete activities.” Id. § 416.926a(e)(3)(i) (emphasis
added).

                                             4
therapy, or chronic wheezing. See id.

       Since there is no listing for exostoses, the ALJ analyzed whether Denzel’s

condition was medically equivalent to what he thought were the most analogous listed

impairments — “major dysfunction of a joint,” “fracture of the femur, tibia, pelvis, or one

or more of the tarsal bones,” and “fracture of an upper extremity.” 20 C.F.R. pt. 404,

subpt. P, app. 1, §§ 1.02, 1.06, 1.07, 101.02, 101.06, 101.07. The ALJ concluded that

Denzel’s condition was not medically equivalent to any of these because, inter alia, he

did not have the “inability to ambulate effectively,” which is a basic requirement for all

listed musculoskeletal impairments. See 20 C.F.R. pt. 404, subpt. P, app. 1,

§§ 1.00(B)(2), 101.00(B)(2). As the regulations explain, the “inability to ambulate

effectively” comprises “an extreme limitation of the ability to walk” and is generally

defined as “having insufficient lower extremity functioning to permit independent

ambulation without the use of a hand-held assistive device(s) that limits the function of

both upper extremities.” Id. The ALJ acknowledged that Denzel “experienced periods of

difficulty walking of varying lengths, did receive home tutoring for a couple of months in

2003 as a result, has been provided with handicapped bus transportation for school, has

been given a key to operate the elevator at school, and has received a special

accommodation at school for fire drill evacuations.” (App. 25.) However, the ALJ found

that these factors were outweighed by the fact that Denzel walked home from school

(even though he had the option to take the handicapped bus) and generally participated in

                                             5
gym, including playing basketball, volleyball, and baseball.

       The ALJ also compared Denzel’s condition to the listings for mood and affective

disorders, which he thought were the most analogous to reactive depression/dysthymic

disorder. 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 12.04, 102.04. The ALJ provided an

extensive explanation for why Denzel’s condition was not medically equivalent to either

listing, including a criterion-by-criterion analysis of why Denzel does not have a major

depressive syndrome and why his depression does not limit his mental functioning to the

degree required by § 12.04 and § 102.04. Among other things, the ALJ found it

significant that Denzel enjoyed playing games, was interested in his school work and

generally received good grades, had a few friends, was on student council, cared for his

grooming and hygiene the same as other children his age, was generally cooperative

during his periodic psychotherapy sessions, was able to self-cope, and had no difficulty

concentrating, no fatigue, and no suicidal thoughts. Moreover, in March 2003, Denzel’s

teacher could not identify any limitation in the areas of interacting and relating with

others or caring for oneself.

       Finally, the ALJ determined that Denzel’s impairments were not functionally

equivalent to any listed impairment. Specifically, he found that Denzel’s impairments

caused no limitation in the domains of acquiring and using information, attending and

completing tasks, and caring for oneself, and caused less-than-marked limitations in the

domains of interacting and relating with others, moving about and manipulating objects,

                                              6
and health and physical well-being. Once again, the ALJ provided a significant

explanation for his conclusion, some of which referred back to his analysis of why

Denzel’s condition did not meet or medically equal any listed impairment.

        Throughout, the ALJ gave substantial weight to the opinions of the doctors from

the state’s Disability Determination Service (“DDS”), who thought that Denzel’s

exostoses and asthma did not meet, medically equal, or functionally equal a listed

impairment. See 20 C.F.R. § 416.927(f).2

        Ms. Morrison makes a number of arguments on appeal. First, she contends that, in

conducting his medical equivalence analysis, the ALJ compared Denzel’s exostoses to the

wrong condition. She maintains that the most similar listing was for “deficit of

musculoskeletal function due to deformity or musculoskeletal disease,” entailing

“walking [that] is markedly reduced in speed or distance despite orthotic or prosthetic

devices,” and that Denzel’s condition is medically equivalent to it. However, this is

former listing 101.03, which was eliminated when the listings were amended in 2001.

See Revised Medical Criteria for Determination of Disability, Musculoskeletal System

and Related Criteria, 66 Fed Reg. 58,010, 58,021 (2001). As discussed above, “inability

to ambulate effectively” is now required for any musculoskeletal impairment. Given the

fact that Denzel generally participated in gym and walked home from school, a reasonable

  2
      The DDS doctors did not have before them documentation about Denzel’s depression.

                                             7
mind could conclude that, despite his condition, Denzel did not meet this requirement.

Therefore, substantial evidence supports the ALJ’s conclusion that Denzel was not unable

to ambulate effectively.

       Ms. Morrison also argues that the ALJ failed to consider Denzel’s three

impairments in combination with one another and that we should therefore remand with

instructions for him to do so. The ALJ, however, explicitly indicated a number of times

that he was considering the impairments in combination. (App. 25, 27, 28.) We see no

reason not to believe him.

       Finally, Ms. Morrison contends that the ALJ’s functional equivalence analysis was

conclusory and maintains that Denzel’s condition is in fact functionally equivalent to the

listings. Specifically, she asserts that Denzel suffers from marked limitations in four

domains: relating with others, moving about and manipulating objects, caring for one’s

self, and health and well-being.

       We conclude that the ALJ’s explanation of why Denzel had either no limitation or

a less-than-marked limitation in each of these four domains was sufficient “to permit

meaningful review,” see Jones, 364 F.3d at 505, and, moreover, that his ultimate findings

are supported by substantial evidence. Regarding the domain of interacting and relating

with others, the ALJ referred back to his thorough analysis of why Denzel’s condition

was not medically equivalent to the listings for mood and affective disorders. Regarding

the domain of moving about and manipulating objects, the ALJ referred back to his more-

                                             8
than-sufficient analyses of why Denzel’s condition did not meet the listings for asthma

and was not medically equivalent to analogous listings for musculoskeletal impairments.

Regarding the domain of caring for oneself, the ALJ referred back again to his in-depth

comparison of Denzel’s condition to the listings for mood and affective disorders. Lastly,

the domain of health and physical well-being contemplates “the cumulative physical

effects of physical or mental impairments and their associated treatments or therapies on

[the child’s] functioning” that were not considered under the domain of moving about and

manipulating objects. 20 C.F.R. § 416.926a(l). Here, the ALJ referred once more to his

prior discussion of why Denzel’s condition neither met the listings for asthma nor

medically equaled the listings for musculoskeletal impairments and, again, gave

substantial weight to the DDS doctors’ opinions. In explaining his conclusion, the ALJ

acknowledged that pain caused by Denzel’s exostoses sometimes wakes him up at night

and has caused him to be absent from school for significant periods of time; however, the

ALJ also highlighted the fact that special accommodations, including home-tutoring, have

been provided to allow Denzel to continue to attend school and that the treatment he has

received since February 2003 — a combination of physical therapy, rest, alcohol rubs,

and occasional non-narcotic prescription medication — provide him with some relief

from his pain.

       For the reasons discussed above, we will AFFIRM the District Court’s judgment

affirming the Commissioner’s denial of benefits.

                                            9