Brown v. Jacobsen Land & Cattle Co. , 297 Neb. 541 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
BROWN v. JACOBSEN LAND & CATTLE CO.
Cite as 297 Neb. 541
Terry P. Brown, individually, and Terry P. Brown
as Trustee of the Terry Paul Brown Living Trust,
appellee, v. Jacobsen Land and Cattle Company,
a Nebraska corporation, appellee, and State
of Nebraska ex rel. Game and Parks
Commission, intervenor-appellant.
___ N.W.2d ___
Filed August 18, 2017. No. S-16-604.
1. Equity: Quiet Title. A quiet title action sounds in equity.
2. Equity: Appeal and Error. On appeal from an equity action, an appel-
late court decides factual questions de novo on the record and, as to
questions of both fact and law, is obligated to reach a conclusion inde-
pendent of the trial court’s determination.
3. Statutes: Property: Appeal and Error. The interpretation of a stat-
ute, including the interpretation of the lis pendens statute, is a ques-
tion of law. On a question of law, an appellate court is obligated to
reach a conclusion independent of the determination reached by the
court below.
4. Statutes: Property: Intent. The scope of the lis pendens rule is deter-
mined by its end and purpose.
5. Property: Intent. Generally speaking, the purpose of lis pendens is
to prevent third persons, during the pendency of litigation involving a
property dispute, from acquiring interests in the disputed land which
would preclude the court from granting the relief sought.
6. Property: Jurisdiction: Statutes: Intent. The lis pendens statute serves
to hold disputed property within the court’s jurisdiction until the parties’
rights are finally determined.
7. Appeal and Error. An appellate court will not consider an issue on
appeal that was not presented to or passed upon by the trial court.
8. ____. A trial court cannot commit error in resolving an issue never pre-
sented and submitted to it for disposition.
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BROWN v. JACOBSEN LAND & CATTLE CO.
Cite as 297 Neb. 541
9. Interventions. One who intervenes under Neb. Rev. Stat. § 25-328
(Reissue 2016) becomes a party to the litigation and has all the rights of
a party.
10. Interventions: Pleadings. An intervenor’s pleadings are governed by
the same pleading rules in chapter 25 of the Nebraska Revised Statutes
as govern other parties’ pleadings.
11. Interventions. As a party to the litigation, it is generally recognized that
intervenors can engage in discovery, file motions, introduce evidence,
and examine witnesses.
12. Property: Parties. When a subsequent purchaser under the lis pendens
statute becomes a party in an action involving the disputed property, he
or she is entitled to question the plaintiff’s right to recover in the same
manner as the original defendant.
13. ____: ____. A subsequent purchaser under the lis pendens statute occu-
pies the same position as the original defendant and is entitled to no
greater rights of defense.
14. ____: ____. The lis pendens rules do not confer any additional substan-
tive rights on parties to a property dispute, but neither do they restrict
the rights of parties to defend their interests in the litigation.
15. Actions: Property: Parties. The lis pendens statute does not relieve the
plaintiff from making parties to an action all persons having an interest
in the property when the action is commenced, if such interest is known
to him or her.
16. Trial: Evidence: Appeal and Error. To constitute reversible error
in a civil case, the admission or exclusion of evidence must unfairly
prejudice a substantial right of a litigant complaining about evidence
admitted or excluded.
Appeal from the District Court for Banner County: Derek C.
Weimer, Judge. Reversed and remanded for a new trial.
Douglas J. Peterson, Attorney General, and Charles E.
Chamberlin for intervenor-appellant.
Andrew W. Snyder, of Chaloupka, Holyoke, Snyder,
Chaloupka & Longoria, P.C., L.L.O., for appellee Terry P.
Brown.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
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BROWN v. JACOBSEN LAND & CATTLE CO.
Cite as 297 Neb. 541
Stacy, J.
This appeal involves the interplay between Nebraska’s lis
pendens statute1 and Nebraska’s intervention statutes.2 The
primary question presented is whether the right of an inter-
venor to offer evidence in a quiet title action is restricted by
the lis pendens statute. We conclude it is not, and because the
intervenor in this case was not permitted to offer evidence at
trial, we reverse the judgment and remand this matter for a
new trial.
FACTS
Jacobsen Land and Cattle Company (Jacobsen) is the record
owner of land in Banner County, Nebraska. Terry P. Brown,
individually, and Terry P. Brown as trustee of the Terry Paul
Brown Living Trust, owns property adjacent to the Jacobsen’s
property. For many years, approximately 80 acres of Jacobsen’s
land has been fenced in with Brown’s property (the dis-
puted property).
In October 2014, Jacobsen and the Nebraska Game and
Parks Commission (State) entered into a purported purchase
agreement for the sale of a parcel of Jacobsen’s land that
included the disputed property. Pursuant to a warranty deed
executed February 10, 2015, Jacobsen conveyed title to the
subject real estate to the State. The deed was recorded on
February 13.
Lis Pendens and
Quiet Title Action
After Jacobsen and the State entered into the purchase
agreement, but before closing occurred, Brown filed and
recorded a lis pendens with the Banner County register of
deeds. The lis pendens recited that a quiet title action had been
filed in the district court for Banner County, identified Brown
1
Neb. Rev. Stat. § 25-531 (Reissue 2016).
2
Neb. Rev. Stat. §§ 25-328 to 25-330 (Reissue 2016).
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BROWN v. JACOBSEN LAND & CATTLE CO.
Cite as 297 Neb. 541
as the plaintiff and Jacobsen as the defendant, and identified
the disputed property by full legal description.
Shortly before filing the lis pendens, Brown filed a quiet
title action against Jacobsen in the district court for Banner
County, alleging ownership by adverse possession of the dis-
puted property. Jacobsen filed an answer denying Brown’s
claim of adverse possession and setting forth several affirma-
tive defenses.
Complaint in Intervention
The State subsequently moved for leave to intervene in the
quiet title action between Brown and Jacobsen. In its motion,
the State alleged it was the current owner of record of the dis-
puted property and had a “direct interest in the subject matter
in this litigation and the outcome of this litigation, as required
by . . . § 25-328.” The State also alleged that when the quiet
title action was filed, it “held equitable title in the disputed
property” by virtue of having entered into an agreement to
purchase the property.3 The State alleged it had expended sub-
stantial state and federal funds in the acquisition and improve-
ment of the disputed property, and would be “liable to reim-
burse federal dollars” in the event Brown was successful in the
litigation. Finally, the State alleged that its interests “may not
be adequately represented” by Jacobsen and that it had “a duty
to defend State owned property from claims of encroachment
or quiet title actions.”
Jacobsen did not object to the State’s request to intervene
in the quiet title action, but Brown did. In an order entered
July 15, 2015, the court allowed the State to intervene over
Brown’s objection. The court acknowledged Brown’s argument
that the lis pendens statute prevented the State from acquiring
any legal interest in the disputed property while the action
was pending, but concluded “the State should be permitted to
3
See, generally, DeBoer v. Oakbrook Home Assn., 218 Neb. 813, 359
N.W.2d 768 (1984).
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BROWN v. JACOBSEN LAND & CATTLE CO.
Cite as 297 Neb. 541
intervene to protect whatever interest it may have in some or
part of this real estate.”
Thereafter, the State filed what it captioned “Defendant-
Interven[o]r’s Answer to Plaintiff’s Amended Complaint,” in
which it aligned with Jacobsen in defending against Brown’s
claim of adverse possession. The State’s answer denied the
allegations of Brown’s complaint and set forth several affirma-
tive defenses to the claim of adverse possession. Most of the
State’s affirmative defenses were similar to those asserted by
Jacobsen in its answer, but the State also alleged the affirma-
tive defenses of laches, unclean hands, and defects in the lis
pendens notice.
Brown’s Motion for Partial
Summary Judgment
Brown moved for partial summary judgment against the
State, arguing application of the lis pendens statute prevented
the State from acquiring any direct and legal interest in the
disputed property. After a hearing, the district court granted
Brown’s motion in part, finding as a matter of law that (1)
Brown had complied with the lis pendens statute and the notice
filed was legally sufficient and effective and (2) the State was
a “subsequent purchaser” under the lis pendens statute and as
such could take only “whatever title [Jacobsen] had to give
at the time the warranty deed was executed and recorded.”
However, the court’s order granting partial summary judg-
ment did not dismiss the State from the quiet title action or
make any findings regarding the merits of the adverse posses-
sion claim.
Jacobsen Stops Defending
Quiet Title Action
Before trial, Jacobsen’s counsel advised the court that his
client had asked him not to participate in the pretrial confer-
ence or the trial and had consented to his withdrawal from
the case. Jacobsen’s counsel indicated that his client’s intent
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BROWN v. JACOBSEN LAND & CATTLE CO.
Cite as 297 Neb. 541
was “to not participate further in this case” and “not to hire
another attorney.” No party objected, and the court allowed
Jacobsen’s counsel to withdraw. Jacobsen did not thereafter
participate in the litigation and did not appear for trial.
State’s Motion to
Modify Progression
After Jacobsen ceased participating in the action, the State
moved to modify the case progression plan and to continue the
pretrial conference. The State claimed that it needed additional
time to prepare for trial and argued that because Jacobsen was
no longer participating in the case, the State needed to con-
duct formal discovery so that it could defend against Brown’s
claim of adverse possession.
Brown opposed modifying the progression order. He argued
the State had only the rights of a subsequent purchaser under
the lis pendens statute and could not “step into [Jacobsen’s]
shoes” and defend against Brown’s claim of adverse posses-
sion. The court overruled the motion to modify the progression
order, but took the opportunity to summarize its earlier rulings
and explain how it viewed the State’s interest in the action
going forward.
The court acknowledged the State had an interest in the out-
come of the quiet title action sufficient to support intervention,
but agreed with Brown that the State’s interest was limited to
“that of a subsequent purchaser as defined in the lis pendens
statutes.” The court reasoned:
[T]he State . . . is the subsequent purchaser of whatever
real estate [Jacobsen] had to sell to it at the time of the
closing of their real estate transaction. The State was not
dismissed from the action, but its role is limited to that of
a subsequent purchaser which does not put it in the “same
shoes” as [Jacobsen].
The court concluded that, given the State’s status as a subse-
quent purchaser under the lis pendens statute, it “would not
have a defense as to the issues pending between [Brown] and
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BROWN v. JACOBSEN LAND & CATTLE CO.
Cite as 297 Neb. 541
[Jacobsen],” because Brown’s claims of adverse possession
predated the purchase agreement. The court observed that after
the quiet title action was resolved, the State could then “pursue
whatever remedies it may have under the purchase agreement
between it and [Jacobsen].” The matter proceeded to pretrial
conference as scheduled.
Pretrial Conference
Only the State and Brown appeared for the pretrial confer-
ence. When the State indicated it planned to call witnesses to
contest Brown’s claim of adverse possession, Brown objected.
He argued that permitting the State to offer evidence would
be contrary to the court’s determination that the State took no
interest in the property pursuant to the lis pendens statute and
would impermissibly allow the State to stand in the shoes of
Jacobsen for purposes of challenging the elements of adverse
possession. The State countered that it would be defending
its own interests in the property and would be challenging
Brown’s adverse possession claim to the extent that claim
impacts the interest the State would receive from Jacobsen.
Ultimately, citing the State’s status as a subsequent pur-
chaser under lis pendens, the court concluded the State would
not be allowed to present evidence or question witnesses at
trial related to the claim of adverse possession.
Trial
The quiet title action was tried to the bench on May 11,
2016. Jacobsen did not appear for trial. Brown offered evi-
dence in support of the adverse possession claim. No party
offered evidence in opposition to the claim, but the State was
permitted to make several offers of proof.
In an order entered May 18, 2016, the court found Brown
had met his burden of proving adverse possession of the dis-
puted property. The court quieted title to the disputed property
in Brown as against Jacobsen and any other persons or entities
claiming any interest therein.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
BROWN v. JACOBSEN LAND & CATTLE CO.
Cite as 297 Neb. 541
The State timely appealed, and we moved the case to our
docket on our own motion pursuant to our statutory authority
to regulate the caseloads of the appellate courts of this state.4
ASSIGNMENTS OF ERROR
The State assigns, renumbered and restated, that the district
court erred in (1) determining that the lis pendens operated to
make the State a subsequent purchaser or, in the alternative,
refusing to cancel the lis pendens; (2) determining that the
State had a sufficient interest to intervene in the action, but did
not have a sufficient interest to resist Brown’s claim of adverse
possession; (3) determining that equitable title to the disputed
property would not affect the State’s interest in Brown’s claims
and its ability to defend against the claims; (4) determining that
Brown had met his burden of proving adverse possession of
the disputed real property; and (5) refusing to modify the case
progression order.
STANDARD OF REVIEW
[1,2] A quiet title action sounds in equity.5 On appeal from
an equity action, an appellate court decides factual questions de
novo on the record and, as to questions of both fact and law, is
obligated to reach a conclusion independent of the trial court’s
determination.6
[3] The interpretation of a statute, including the interpre-
tation of the lis pendens statute, is a question of law.7 On a
question of law, an appellate court is obligated to reach a
conclusion independent of the determination reached by the
court below.8
4
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
5
Poullos v. Pine Crest Homes, 293 Neb. 115, 876 N.W.2d 356 (2016).
6
Id.
7
See Kelliher v. Soundy, 288 Neb. 898, 852 N.W.2d 718 (2014).
8
Id.
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Nebraska Supreme Court A dvance Sheets
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BROWN v. JACOBSEN LAND & CATTLE CO.
Cite as 297 Neb. 541
ANALYSIS
One of the central questions raised on appeal is whether the
right of an intervenor to participate and offer evidence in a
quiet title action is restricted by application of the lis pendens
statute. To answer this question, we begin by reviewing the his-
tory and purpose of lis pendens under Nebraska law.
Lis Pendens
Under the common-law doctrine of lis pendens (literally
“‘[a] pending lawsuit’”9), the mere pendency of a suit affect-
ing title to real property was constructive notice to the world
of the disputed claim.10 Nebraska codified the common-law
doctrine of lis pendens early in its history.
Prior to 1887, Nebraska’s lis pendens statute “was a legisla-
tive adoption of the equity rule of lis pendens that had existed
from time immemorial,”11 and the rule applied to give notice
of the disputed claim once a suit was commenced. Under
the rule then in effect, a suit was commenced upon service
of summons.12 This application proved problematic, because
persons aware of the filing of a complaint but not yet served
with summons could freely alienate the property and preclude
a court from awarding the relief requested in the complaint.13
To address this problem, the Legislature amended the lis
­pendens statute in 1887 to permit a plaintiff to record a notice
of lis pendens with the register of deeds at or near the time of
filing the complaint and thereby give notice of the disputed
claim and bind any subsequent purchaser to the outcome of
9
Id. at 904, 852 N.W.2d at 724.
10
Kelliher v. Soundy, supra note 7.
11
Sheasley v. Keens, 48 Neb. 57, 63, 66 N.W. 1010, 1012 (1896), overruled
on other grounds, Munger v. Beard & Bro., 79 Neb. 764, 113 N.W. 214
(1907).
12
Kelliher v. Soundy, supra note 7.
13
Id.
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BROWN v. JACOBSEN LAND & CATTLE CO.
Cite as 297 Neb. 541
the proceedings. The current lis pendens rule is codified in
§ 25-531 and provides in relevant part:
When the [lis pendens] summons has been served or
publication made, the action is pending so as to charge
third persons with notice of pendency. While the action
is pending no interest can be acquired by third persons in
the subject matter thereof, as against the plaintiff’s title.
In all actions brought to affect the title to real property,
the plaintiff may either at the time of filing his or her
complaint or afterwards, file, or in case any defendant
sets up an affirmative cause of action and demands relief
which shall affect the title to real estate, he or she may, at
the time of filing such answer or at any time afterwards,
file with the clerk or register of deeds of each county
in which the real estate thus to be affected, or any part
thereof, is situated, a notice of the pendency of such
action. The notice shall contain the names of the parties,
the object of the action, and a description of the property
in such county sought to be affected thereby. . . . The
clerk or register of deeds of such county shall record
the notice . . . . From the time of filing such notice the
pend­ency of such action shall be constructive notice to
any purchaser or encumbrancer to be affected thereby.
Every person whose conveyance or encumbrance is sub-
sequently executed or subsequently recorded shall be
deemed to be a subsequent purchaser or encumbrancer
and shall be bound by all proceedings taken in the action
after the filing of such notice to the same extent as if
he or she were made a party to the action. The court in
which such action was commenced or any judge thereof
may at any time thereafter on the application of any
person aggrieved, on good cause shown, and on such
notice as the court or judge may determine, order the
notice to be canceled by the clerk or register of deeds of
any county in which the notice may have been filed or
recorded by filing a notice of release.
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BROWN v. JACOBSEN LAND & CATTLE CO.
Cite as 297 Neb. 541
[4-6] We have recognized that “[t]he scope of the [lis
p­ endens] rule is determined by its end and purpose.”14 Generally
speaking, the purpose of lis pendens is to prevent third persons,
during the pendency of litigation involving a property dispute,
from acquiring interests in the disputed land which would
preclude the court from granting the relief sought.15 In other
words, the lis pendens statute serves to hold disputed property
within the court’s jurisdiction until the parties’ rights are finally
determined.16 In Hadley v. Corey,17 we explained:
“In a legal sense the term (lis pendens) is equivalent
to the maxim that pending the suit nothing should be
changed (pendente lite nihil innovetur); and the doctrine
of lis pendens is that one who acquires any interest in
property during the pendency of litigation respecting
such property from a party to the litigation takes subject
to the decree of judgment in such litigation and is bound
by it.”
With the purpose and effect of the lis pendens rule in mind,
we turn to the State’s assignments of error.
State Is Subsequent Purchaser
Under § 25-531
In its first assignment, the State asserts the district court
erred in finding it is a subsequent purchaser under the lis
­pendens statute. Alternatively, the State asserts that even if it is
a subsequent purchaser, the district court erred in not canceling
the lis pendens. We find no merit to this assignment.
The plain language of the lis pendens statute provides that
once a lis pendens notice is filed, “[e]very person whose con-
veyance or encumbrance is subsequently executed or subse-
quently recorded shall be deemed to be a subsequent purchaser
14
Merrill v. Wright, 65 Neb. 794, 797, 91 N.W. 697, 699 (1902).
15
Id.
16
See id.
17
Hadley v. Corey, 137 Neb. 204, 215, 288 N.W.2d 826, 832 (1939).
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BROWN v. JACOBSEN LAND & CATTLE CO.
Cite as 297 Neb. 541
or encumbrancer and shall be bound by all proceedings taken
in the action . . . .”18 Brown filed and recorded the lis pendens
on February 4, 2015, and it contained the names of the parties,
the object of the action, and a description of the disputed prop-
erty. The State does not argue on appeal that Brown failed to
comply with any aspect of the lis ­pendens statute.
The record shows that the warranty deed from Jacobsen
to the State was executed February 10, 2015, and recorded
February 13. Because the execution and recording of the deed
conveying the disputed property occurred after the lis pendens
was filed, the district court was correct in finding the State was
a subsequent purchaser under § 25-531.
[7,8] Regarding the State’s alternative assignment, we note
that § 25-531 permits a court to cancel a lis pendens notice
“on the application of any person aggrieved, on good cause
shown.” The record indicates the State mentioned the avail-
ability of such relief once during argument to the court, but
nothing in the record shows the State ever moved for such
relief. An appellate court will not consider an issue on appeal
that was not presented to or passed upon by the trial court,19
because a trial court cannot commit error in resolving an issue
never presented and submitted to it for disposition.20 As such,
we do not address the State’s argument that the lis pendens
should have been canceled.
As Intervenor and Subsequent
Purchaser, State H ad R ight
to Offer Evidence
After finding the State had sufficient interest to intervene
in the action, the district court concluded the State’s sta-
tus as a subsequent purchaser under the lis pendens statute
prevented the State from presenting evidence related to the
18
§ 25-531.
19
Walsh v. State, 276 Neb. 1034, 759 N.W.2d 100 (2009).
20
Id.
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BROWN v. JACOBSEN LAND & CATTLE CO.
Cite as 297 Neb. 541
adverse possession claim. It reasoned the “State’s interest in
this lawsuit [is that of] the subsequent purchaser of whatever
real estate [Jacobsen] had to sell to it at the time of the clos-
ing [and] its role is limited to that of a subsequent purchaser
which does not put it in the ‘same shoes’ as [Jacobsen].”
To determine whether an intervenor’s right to participate
in an action and offer evidence is restricted by virtue of its
status as a subsequent purchaser under the lis pendens statute,
we begin by reviewing the general rights of one intervening
in an action under § 25-328. That statute provides in rel-
evant part:
Any person who has or claims an interest in the mat-
ter in litigation, in the success of either of the parties to
the action, or against both, in any action pending . . . in
any of the courts in the State of Nebraska, may become
a party to an action . . . either by joining the plaintiff in
claiming what is sought by the complaint, or by uniting
with the defendants in resisting the claim of the plain-
tiff . . . .
[9-11] The plain language of § 25-328 provides that one
who intervenes becomes “a party” to the action, and our
case law recognizes as much. We have held that one who
intervenes under § 25-328 becomes a party to the litigation
and has all the rights of a party.21 An intervenor’s pleadings
are governed by the same pleading rules in chapter 25 of the
Nebraska Revised Statutes as govern other parties’ pleadings.22
And, as a party to the litigation, it is generally recognized that
intervenors “can engage in discovery, file motions, introduce
evidence, and examine witnesses.”23
Here, the district court interpreted the lis pendens statute
to limit the rights of a party who intervenes as a subsequent
21
Kirchner v. Gast, 169 Neb. 404, 100 N.W.2d 65 (1959). See, also, John P.
Lenich, Nebraska Civil Procedure § 16:9 (2008).
22
§ 25-330.
23
Lenich, supra note 21, § 16:9 at 620.
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BROWN v. JACOBSEN LAND & CATTLE CO.
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purchaser. Specifically, the court concluded that because the
State was a subsequent purchaser under the lis pendens statute,
it could not “stand in the shoes” of Jacobsen and therefore
could not offer any evidence opposing Brown’s adverse pos-
session claim. We reject this broad proposition, because it is
contrary to our case law and cannot be reconciled with our
settled jurisprudence on the rights of intervenors.
[12,13] In Hadley v. Corey, we recognized that when a
subsequent purchaser under the lis pendens statute becomes a
party in an action involving the disputed property, he or she
is “entitled to question [the] plaintiff’s right to recover in the
same manner as the original defendant.”24 We added that a sub-
sequent purchaser “occupies the same position as the original
defendant and is entitled to no greater rights of defense.”25
When the State intervened in this quiet title action, it
became a party.26 The district court’s conclusion that the State
could not “stand in the shoes” of Jacobsen or offer any evi-
dence to defend against the claim of adverse possession was
not only incompatible with the rights of a subsequent pur-
chaser under Hadley, it was also incompatible with the State’s
right as an intervenor.
As an intervening party to the litigation, the State should
have been permitted to engage in discovery, file motions,
introduce evidence, and examine witnesses just like any other
party.27 The State was entitled to oppose Brown’s adverse
possession claim in the same manner as Jacobsen.28 The fact
that Jacobsen effectively withdrew from the litigation made it
even more critical that the State be allowed to defend against
Brown’s adverse possession claim by questioning witnesses
and offering evidence.
24
Hadley v. Corey, supra note 17, 137 Neb. at 215, 288 N.W.2d at 832.
25
Id.
26
See, § 25-328; Kirchner v. Gast, supra note 21.
27
See Lenich, supra note 21.
28 See Hadley v. Corey, supra note 17.
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BROWN v. JACOBSEN LAND & CATTLE CO.
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[14] Lis pendens is a procedural mechanism intended to
alert prospective purchasers about property disputes and pro-
tect the status quo until the parties’ substantive property rights
can be determined in litigation.29 It is true the lis pendens rules
do not confer “any additional substantive rights” on parties to
a property dispute,30 but neither do they restrict the rights of
parties to defend their interests in the litigation.
[15] Our holding in Munger v. Beard & Bro.31 further illus-
trates that the lis pendens statute does not operate to prevent
a subsequent purchaser from fully participating as a party in
a quiet title action affecting the subject property. In Munger,
we stated:
The statute of lis pendens does not relieve the plaintiff
from making parties to an action all persons having an
interest in the property when the action is commenced,
if such interest is known to him. . . . [T]he intent of the
legislature [is] to give the plaintiff the benefit of a lis
pendens notice as against parties holding secret liens, and
not against those whose liens or interests were actually
known to him. . . . [H]aving such actual notice [of the
mortgagor’s interest,] it was [the plaintiff’s] duty to make
her a party [so] that her rights might be litigated.32
Munger suggests that a subsequent purchaser who is known to
the plaintiff must not only be allowed to participate as a party
in an action commenced regarding the property, but should be
joined as a necessary party in the action. In the present case,
it is not necessary to address whether the State was a neces-
sary or indispensable party33 to the quiet title action, because
the State intervened and thereby became a party to the action.
29
See 51 Am. Jur. 2d Lis Pendens § 2 (2011).
30
Kelliher v. Soundy, supra note 7, 288 Neb. at 905, 852 N.W.2d at 724.
31
Munger v. Beard & Bro., supra note 11.
32
Id. at 774-75, 113 N.W. at 218.
33
See Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73,
894 N.W.2d 221 (2017).
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BROWN v. JACOBSEN LAND & CATTLE CO.
Cite as 297 Neb. 541
We conclude that once the State intervened as a party to the
quiet title action, it was error not to allow the State to partici-
pate fully and offer evidence.
[16] To constitute reversible error in a civil case, the admis-
sion or exclusion of evidence must unfairly prejudice a sub-
stantial right of a litigant complaining about evidence admitted
or excluded.34 In the present case, the State was precluded
from offering any evidence opposing Brown’s claim of adverse
possession. A trial court always has discretion to limit evi-
dence which is irrelevant,35 needlessly cumulative,36 or unfairly
prejudicial,37 but here, the court did not rely on any evidentiary
rule to limit the State’s ability to offer evidence, and instead
relied solely on the State’s status as a subsequent purchaser
under the lis pendens statute to preclude all offers of evidence.
This error unfairly prejudiced the State’s right to participate
fully as an intervening party in the litigation and effectively
prevented the State from defending its interest as a subsequent
purchaser of the disputed property.
We therefore reverse the judgment of the district court and
remand the matter for a new trial. Because of our disposition,
we do not reach the State’s remaining assignments of error.
CONCLUSION
For the foregoing reasons, we reverse the judgment and
remand this matter for a new trial.
R eversed and remanded for a new trial.
34
Martensen v. Rejda Bros., 283 Neb. 279, 808 N.W.2d 855 (2012).
35
Neb. Rev. Stat. § 27-402 (Reissue 2016).
36
Neb. Rev. Stat. § 27-403 (Reissue 2016).
37
Id.