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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

KJH ENTERPRISES V. SCHROEDER

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

KJH ENTERPRISES, L.L.C., APPELLEE AND CROSS-APPELLANT,

V.

CARLA M. SCHROEDER, ET AL., REAL NAME UNKNOWN,

APPELLANTS AND CROSS-APPELLEES.

Filed April 18, 2023. No. A-22-449.

Appeal from the District Court for Lancaster County, LORI A. MARET, Judge, on appeal 

thereto from the County Court for Lancaster County, RODNEY D. REUTER, Judge. Judgment of 

District Court affirmed.

Terry K. Barber, of Barber & Barber, P.C., L.L.O., for appellants.

Joel G. Lonowski and Gina M. Elliott, of Morrow, Poppe, Watermeier & Lonowski, P.C., 

L.L.O., for appellee.

RIEDMANN, BISHOP, and ARTERBURN, Judges.

ARTERBURN, Judge.

INTRODUCTION

A writ of restitution was entered in 2019 ordering Carla M. Schroeder to vacate an acreage 

and residence located near Firth, Nebraska, purchased by KJH Enterprises, L.L.C. (KJH), at a 

trustee sale following foreclosure. On appeal, Schroeder asserts that the district court erred in 

affirming the county court’s finding that there was no title dispute divesting that court of subject 

matter jurisdiction. On cross-appeal, KJH asserts the district court erred in affirming the county 

court’s finding that denied its request for attorney fees. Upon our review, we affirm the order of 

the district court.
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BACKGROUND

KJH purchased a property located near Firth, Nebraska, and received ownership through a 

properly executed trustee’s deed on July 1, 2019. The Firth property was once owned by Schroeder 

but had been foreclosed due to Schroeder’s failure to make any mortgage payments since 2010. At 

the time of KJH’s purchase, Schroeder was still residing on the property. On July 18, KJH brought 

a forcible entry and detainer action pursuant to Neb. Rev. Stat. § 25-21,219 et. seq. (Reissue 2016) 

by filing a complaint for restitution of premises in the county court for Lancaster County against 

Schroeder and any unknown persons occupying the premises.

On July 31, 2019, Schroeder filed a motion to dismiss the restitution action for lack of 

subject matter jurisdiction. Schroeder alleged the county court lacked subject matter jurisdiction 

because a title dispute existed relative to the Firth property. At the hearing on the motion, evidence 

was adduced of three other lawsuits filed by Schroeder as it relates to the Firth property. The first 

case, entitled Schroeder v. Bank of America et al., was filed in the Lancaster County District Court 

in 2014. This complaint asserted six separate causes of action including a quiet title claim, request 

for injunctive relief preventing the sale of the property, and a claim for wrongful foreclosure of 

the property. The district court ultimately granted the defendant’s motions for summary judgment 

and granted judgment in their favor as a matter of law. We affirmed the district court’s finding in 

a memorandum order entered on October 12, 2018.

Schroeder filed a second case against the trustee who was seeking to sell the Firth property 

in the Lancaster County District Court on May 13, 2019. Schroeder sought injunctive relief to stop 

the sale of her home which was scheduled that day. The Lancaster County District Court 

characterized Schroeder’s petition as an attempt to collaterally attack a valid judgment and 

summarily dismissed Schroeder’s petition on the same day as Schroeder’s complaint was filed. 

Both of the cases filed in the Lancaster County District Court were concluded well before KJH 

initiated the restitution action.

However, in support of the contention that a title dispute existed regarding the Firth 

property, Schroeder most heavily relied on a case she filed on July 1, 2019, against the trustee in 

the U.S. District Court for the District of Nebraska. The federal case was pending at the time the 

restitution action was filed. In that case, Schroeder challenged the trustee and mortgage holder’s 

ability to foreclose on her house under the Fair Debt Collection Act. Schroeder alleged four causes 

of action: (1) that defendants attempted to collect a debt from parties with whom they did not have 

a contract for professional services, (2) that defendants attempted to collect a debt “for a

non-existent judgment creditor, an illusory trust,” (3) that defendants engaged in a collection 

activity without prior offers or mediation, and (4) that defendants violated the Fair Debt Collection 

Act by filing a frivolous foreclosure suit. Schroeder referred to her suits in the Lancaster County 

District Court in this action as support for her contentions as well. KJH was not named as a party 

to the federal court action.

The county court denied Schroeder’s motion to dismiss. The county court specifically

found that Schroeder “had a full and fair opportunity to litigate the alleged title dispute on which 

she relie[d] and lost” citing to the two cases filed in the Lancaster County District Court. Further, 

the court found that Schroeder’s federal court case failed to raise a title dispute. Because the federal 
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case was based on the Fair Debt Collection Act and did not specifically challenge KJH’s title, the 

county court found that it maintained subject matter jurisdiction.

KJH subsequently filed an amended complaint adding two additional claims including 

request for rent for the period Schroeder remained in the residence following the trustee sale and 

for damages caused to the premises by Schroeder. On September 3, 2019, Schroeder filed an 

answer to the complaint for restitution again alleging that the court lacked subject matter 

jurisdiction due to a title dispute. Additionally, Schroeder filed a third party complaint alleging 

that the mortgage lenders did not go through the proper procedures in foreclosing the Firth 

property. In response, KJH filed a motion to strike that part of Schroeder’s answer alleging a title 

dispute and to strike the third party complaint in its entirety. The county court granted both of the 

motions by KJH, and a bifurcated trial was held on the complaint for restitution.

The first portion of the trial, held September 17, 2019, focused solely on KJH’s restitution 

claim. At trial, a representative of KJH testified that they purchased the Firth property in a 

foreclosure auction on July 1, 2019. Schroeder was also present at this auction. The representative 

testified that she received a deed from the trustee who conducted the sale and promptly recorded 

the deed at the Lancaster County Register of Deeds. After recording the deed, the representative 

explained that they could not take possession because Schroeder remained in possession of the 

property. As a result, KJH provided Schroeder with a three-day notice to vacate on July 11. Finally, 

the representative testified that Schroeder still had possession of the property as of the date of trial. 

Schroeder attempted to testify regarding the purchase, financing, and subsequent foreclosure 

proceedings. After several relevance objections were sustained by the court, her trial counsel made 

an offer of proof as to what her testimony would be. Counsel explained that she was contesting the 

forcible entry and detainer action because she did not receive the proper communications regarding 

the foreclosure prior to the trustee’s sale. The county court again rejected Schroeder’s claim that 

it lacked jurisdiction due to a pending title dispute. On September 18, the county court entered a 

writ of restitution against Schroeder. The court continued the case for later trial on KJH’s 

remaining causes for rent and damages. Later that same day, Schroeder filed her notice of appeal 

to the district court. On September 19, the county court set a supersedeas bond in the amount of 

$50,000 for Schroeder to post to avoid being removed from the property. Schroeder did not deposit 

the bond and was removed.

Schroeder filed a motion to quash the writ of restitution shortly after filing her appeal in 

the district court. The district court found that the motion to quash was not a proper pleading in an 

appeal from the county court. Counsel for KJH moved for attorney fees due to the frivolous nature 

of Schroeder’s motion to quash. The district court ordered Schroeder to pay an attorney fee of 

$500. Ultimately, the district court affirmed the county court’s order on April 8, 2020. Schroeder 

then appealed the district court’s decision to this court. We summarily dismissed the appeal for 

lack of jurisdiction. In a docket entry dated January 19, 2021, we noted that neither the district 

court nor this court had jurisdiction to consider Schroeder’s appeal since the county court’s order 

was not final and appealable, having not resolved all claims contained in the amended complaint. 

We remanded the case to the district court with instructions to dismiss the appeal thereto and 

remand the case to the county court to complete the remainder of the trial. The Nebraska Supreme 

Court denied Schroeder’s petition for further review and the mandate of this court was entered on 

April 13, 2021.
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Trial on KJH’s claims for rent, damages, and its motion for attorney fees was held on June 

1 and 15, 2021. KJH sought $2,500 per month in back rent, $1,225 in damages, which was the 

amount spent removing Schroeder’s personal property from the premises, and $11,188 in attorney 

fees. In support of the motion for attorney fees, KJH called Schroeder as a witness. Schroeder was 

argumentative and uncooperative. Counsel for KJH recounted the many lawsuits filed by 

Schroeder since 2014 including the 2014 case, the 2019 case filed in the Lancaster County District 

Court, and the 2019 federal court case. In addition, counsel for KJH presented evidence of another 

action filed in 2019 in the Lancaster County District Court by Schroeder related to the foreclosure 

of the Firth property. This action was voluntarily dismissed by Schroeder.

A representative of KJH also testified. The representative explained that they paid counsel 

$240 per hour for his work on this case until April 2021 when rates were raised to $290 per hour. 

In total, the representative testified that KJH had incurred $11,188 in legal expenses in relation to 

this case, excluding the prior appeal. The representative also detailed that the case had been 

prolonged by Schroeder’s initial demand for a jury trial. However, just days before the jury trial 

was set to begin, Schroeder withdrew her demand, and a bench trial was held instead. The 

representative testified to the preparation counsel completed based on his belief that a jury trial 

was to take place, including preparing opening statements, jury instructions, and witnesses for trial.

In support of the request for damages, evidence was adduced that Schroeder vacated the 

property on October 25, 2019. The representative then testified regarding the condition of the 

property in October 2019 when they gained possession. She described the property as “unlivable”

with animal feces everywhere. Several items of Schroeder’s personal property were left behind. 

The representative detailed several attempts to coordinate with Schroeder so as to allow her to 

retrieve her belongings. She testified that she hired a mediator to be present on the first weekend 

Schroeder came to the Firth property. Ultimately, law enforcement was called to remove Schroeder 

from the property and KJH hired movers to box up the rest of her belongings and move it to a 

garage for later pick up. KJH paid the mediator $525 for his work and paid seven movers $10 per 

hour for ten hours of work. Schroeder filed a replevin action asking the court to enter an order for 

KJH to return her property but later dismissed the action. In response, KJH requested an order 

directing Schroeder to pick up her property on January 11 and 12, 2020, which the court granted. 

Finally, in support of KJH’s request for rent owed for four months, the representative testified that 

the estimated fair market value of rent for the Firth property was $2,500 per month.

In an order entered September 15, 2021, the county court found that no authority existed 

within the forcible entry and detainer statutes (§§ 25-21,219 through 25-21,235) for the collection 

of damages related to the failure to remove items of personal property or for rental payments 

where, as here, no rental agreement existed. As a result the second and third counts of the amended 

petition were dismissed. Additionally, the county court found no basis for an award of attorney 

fees within the forcible entry and detainer statutes nor any custom or precedent to award attorney 

fees. As a result, KJH’s motion for attorney fees was dismissed.

KJH filed a motion to reconsider on September 23, 2021. At the hearing on the motion to 

reconsider, KJH admitted that they were not challenging the court’s decision regarding the request 

for rent, but still sought damages based on Schroeder leaving personal property on the premises. 

KJH also explained that attorney fees were requested pursuant to Neb. Rev. Stat. § 25-824 (Reissue 
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2016), which authorizes attorney fees for claims or defenses that are frivolous or made in bad faith. 

The court denied the motion to reconsider on October 6.

KJH filed a notice of appeal to the district court. While we have been unable to locate a 

statement of errors in our record, the district court’s opinion indicates that KJH did file a statement 

of errors which asserted that the county court erred by denying its claims for property damage and 

rent, and by failing to award attorney fees pursuant to § 25-824. Schroeder did file a statement of 

errors on cross-appeal. Schroeder’s statement of errors all revolved around the county court’s 

determination that no title dispute existed at the time of trial with respect to the Firth property.

The district court affirmed the decisions of the county court in an order entered on May 20, 

2022. The district court first found that the county court did not lack jurisdiction to hear the forcible 

entry and detainer action. The court noted that at best Schroeder had only averred that a title dispute 

existed regarding the Firth property. The court first noted that final judgments had been entered in 

both the 2014 and 2019 actions initiated by Schroeder in the Lancaster County District Court. 

Then, specifically with respect to the lawsuit pending in federal court, the district court found that 

the only evidence offered was Schroeder’s own complaint in federal court which was insufficient 

to demonstrate a title dispute.

As to KJH’s claims on appeal, the district court found that the damages proven at trial had 

to do with costs of hiring a mediator as opposed to actual property damage. The district court also 

noted that rent was not sought in the motion for reconsideration, but even if the rent claim was 

reviewable, it would fail as no separate rental agreement existed between the parties and no 

independent basis to collect rent existed under the forcible entry and detainer statutes. Finally, the 

district court found no abuse of discretion in the county court’s decision to deny KJH’s attorney 

fee request. The district court noted that KJH was asking to be compensated for all the attorney 

fees charged notwithstanding its concession that Schroeder had the right to force KJH to prove its 

case-in-chief. The district court concluded: “Because [KJH] did not limit its request to only those 

attorney fees associated with the allegedly frivolous defenses and claims, the county court did not 

err by overruling the motion.”

Schroeder now appeals from the district court’s order. KJH cross-appeals.

ASSIGNMENTS OF ERROR

In her brief, Schroeder makes nine assignments of error, which consolidated and restated, 

assert that the district court erred in affirming the county court’s finding that no title dispute existed 

at the time of trial which deprived the county court of subject matter jurisdiction over the forcible 

entry and detainer action.

On cross-appeal, KJH assigns that the district court erred in affirming the county court’s 

order which failed to award it attorney fees pursuant to § 25-824.

STANDARD OF REVIEW

Subject matter jurisdiction and statutory interpretation present questions of law. In re 

Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020). A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a matter of law. Id. An appellate 

court independently reviews questions of law decided by a law court. Id.
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In a bench trial of a law action, a trial court’s factual findings have the effect of a jury 

verdict and will not be set aside on appeal unless clearly wrong. Bloedorn Lumber Co. v. Nielson, 

300 Neb. 722, 915 N.W.2d 786 (2018). In reviewing a judgment awarded in a bench trial of a law 

action, an appellate court does not reweigh evidence, but considers the evidence in the light most 

favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, 

who is entitled to every reasonable inference deducible from the evidence. Id.

On appeal, a trial court’s decision awarding or denying attorney fees will be upheld absent 

an abuse of discretion. White v. Kohout, 286 Neb. 700, 839 N.W.2d 252 (2013).

ANALYSIS

Evidence of Title Dispute.

We begin with Schroeder’s assertion that the district court erred in affirming the county 

court’s decision determining that no title dispute relative to the Firth property existed so as to 

divest the county court of subject matter jurisdiction. Schroeder claims the county court wrongly 

weighed the merits of Schroeder’s other cases in determining whether a title dispute existed. KJH 

asserts that the district court correctly affirmed the decision that Schroeder’s federal court case did 

not assert or create the existence of a title dispute. Upon our review, we find no error in the decision 

of the district court which affirmed the finding of the county court.

Nebraska law has long held that a court cannot determine a question of title in a forcible 

entry and detainer action. If the resolution of the case would require the court to determine a title 

dispute, it must dismiss the case for lack of jurisdiction. Cummins Mgmt. v. Gilroy, 266 Neb. 635, 

667 N.W.2d 538 (2003). Because of its summary nature, the Legislature has narrowed the issues 

that can be tried in a forcible entry and detainer action to the right of possession and statutorily 

designated incidents thereto. Id. The action does not try the question of title, but only the immediate 

right of possession. Id. Thus, when a party attempts to interject a title dispute into a forcible entry 

and detainer action, thereby transforming the proceedings into an equitable action to determine 

title, the court is divested of jurisdiction. Id.

The mere averment that title is in dispute in another action involving the same property 

does not automatically divest the court hearing the forcible entry and detainer action of jurisdiction. 

Federal Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301, 854 N.W.2d 774 (2014). Instead, the 

court may proceed until the evidence discloses that the question involved is one of title. Id.

In Federal Nat. Mortgage Assn. v. Marcuzzo, supra, the defendants alleged the county 

court lacked subject matter jurisdiction in a forcible entry and detainer action because there was a 

title dispute of the property in another case. However, at a hearing on the defendants’ motion, 

neither party appeared, and no evidence was presented. Id. The court denied the defendants’

motion to dismiss, but later granted the plaintiff’s motion to continue the forcible entry and detainer 

action until the other case was resolved. Id. On appeal, the Supreme Court held that the court did 

not err in failing to dismiss the forcible entry and detainer action for lack of subject matter 

jurisdiction because there was no evidence presented to the court regarding a title dispute. Id. In 

so holding, the Supreme Court stated, “we long ago said that a court must find from the competent 

evidence whether title to real estate is drawn in question, and not from the pleadings or from the 

claims or pretensions of the parties.” Id. at 308, 854 N.W.2d at 780. In other words, a party alleging 

a title dispute cannot rely on the contents of their own pleadings as evidence.
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In support of her contention that there was a title dispute, Schroeder offered into evidence 

a copy of the complaint filed in the federal district court and a copy of the docket for that case to 

show that it was pending at the time of the forcible entry and detainer action. KJH offered the order 

and judgment from Schroeder’s 2014 case showing that the appellate mandate was spread in 2018, 

concluding the proceedings. KJH also offered the order dismissing Schroeder’s 2019 district court 

case. As shown in these orders, the two cases filed in the Lancaster County District Court were 

completed prior to the initiation of the action with KJH. Thus, the only dispute that was ongoing 

at the time of the forcible entry and detainer action was the federal court case.

A review of the pleadings in Schroeder’s federal court case affirmatively shows that there

was no title dispute present. Schroeder’s federal case was brought pursuant to the Fair Debt 

Collection Practices Act and alleges four causes of action: (1) the defendants attempted to collect 

a debt from parties with whom they did not have a contract for professional services, (2) the 

defendants attempted to collect a debt for a non-existent judgment creditor or illusory trust, (3) the 

defendants engaged in collection activity without prior offer or mediation, and (4) the defendants 

violated 15 U.S.C. § 1692(e) pursuant to a frivolous foreclosure suit, citing the 2014 Lancaster 

County District Court case. Clearly, the first three causes of action alleged by Schroeder do not 

dispute the title of the Firth property. The fourth cause of action mentions the foreclosure suit but 

does not dispute KJH’s title to the property. There, Schroeder cites to her 2014 lawsuit in 

challenging the foreclosure. However, Schroeder’s fourth cause of action makes no assertion that 

the state court granted her relief from foreclosure proceedings. Moreover, her prayer for relief asks 

only for damages, not injunctive relief. We note that on appeal, Schroeder does not argue that her 

federal lawsuit could have prevented her from losing title to the Firth property. The record reveals 

that the state district court in the 2014 case found no genuine issue as to any material facts with 

respect to all causes of action alleged by Schroeder, including her claims for quiet title, wrongful 

foreclosure, conversion, slander of title, and injunctive relief. That finding was affirmed by this 

court in 2018. At the time of KJH’s forcible entry and detainer action, the issue of title had been 

fully litigated and concluded. Schroeder’s further attempts to relitigate the issue does not create a 

title dispute. The county court did not err in finding that there was not a title dispute divesting the 

court of subject matter jurisdiction and the district court did not err in affirming the county court’s 

decision.

However, Schroeder submits that the county court erred by weighing the evidence 

presented, and asserts that the mere existence of another suit is enough to divest the court of subject 

matter jurisdiction under Marcuzzo. We disagree. The Supreme Court clearly stated that 

“competent evidence” of a title dispute must be presented for jurisdiction to be divested. Federal 

Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301, 308, 854 N.W.2d 774, 780 (2014). “The mere 

averment that title is in dispute in another action involving the same property does not 

automatically divest the court hearing the forcible entry and detainer action of jurisdiction.” Id. at 

307, 854 N.W.2d at 779. A court cannot accept a party’s contention that a title dispute exists 

without further inquiry. Marcuzzo requires a court to find competent evidence of a title dispute. 

Therefore, in this case, the county court’s inquiry into the contents of Schroeder’s federal court 

case did not constitute error. Based on the competent evidence presented, the county court found 

no title dispute to exist. Thus, we find that the district court did not err in affirming the order of 

the county court.
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Request for Attorney Fees.

We now turn to KJH’s request for $11,888 in attorney fees pursuant to § 25-824. The 

district court affirmed the county court’s denial of attorney fees because KJH requested attorney 

fees for all the work done before the county court but only argued that some of Schroeder’s claims 

and defenses were frivolous and failed to present evidence that its attorney fees were reasonable. 

We find that the district court did not abuse its discretion in affirming the county court’s order 

denying KJH’s request for attorney fees.

Section 25-824 provides, in relevant part, that a

court shall assess attorney’s fees and costs if, upon the motion of any party or the court 

itself, the court finds that an attorney or party brought or defended an action or any part of 

an action that was frivolous or that the action or any part of the action was interposed solely 

for delay or harassment.

The award of attorney fees is discretionary. Cisneros v. Graham, 294 Neb. 83, 881 N.W.2d 878 

(2016). The Supreme Court has stated:

Attorney fees can be awarded when a party brings a frivolous action that is without rational 

argument based on law and evidence. We have previously explained that the term 

“frivolous” connotes an improper motive or legal position so wholly without merit as to be 

ridiculous. Attorney fees for a bad faith action under § 25-824 may also be awarded when 

the action is filed for purposes of delay or harassment. We have also said that relitigating 

the same issue between the same parties may amount to bad faith. Finally, any doubt 

whether a legal position is frivolous or taken in bad faith should be resolved for the party 

whose legal position is in question.

Id. at 104, 881 N.W.2d at 892 (quoting White v. Kohout, 286 Neb. 700, 709-10, 839 N.W.2d 252, 

260-61 (2013)). The determination of whether a particular claim or defense is frivolous must 

depend upon the facts of a particular case. Harrington v. Farmers Union Co-Op. Ins. Co., 13 Neb. 

App. 484, 696 N.W.2d 485 (2005).

KJH requested $11,188 in attorney fees, which represents the total amount charged for 

counsel’s work on the entire forcible entry and detainer action excluding the appeal. KJH argues 

that attorney fees should be awarded because Schroeder continuously asserted a defense with no 

merit nor legal basis and further delayed the proceedings by filing a jury demand which was 

withdrawn the day before trial and filing a replevin action that was later voluntarily dismissed. 

KJH does not dispute that Schroeder had a right to force KJH to prove its case-in-chief or to present 

a defense. In a case such as this, where only some, but not all, of a party’s claims or defenses are 

alleged to be frivolous, a trial court can only award attorney fees for those claims which are found 

to be frivolous. See George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947 N.W.2d 

510 (2020). The county court gave full and fair consideration to the request for attorney fees and 

determined that KJH was not entitled to such an award. The district court found no abuse of 

discretion in the county court’s decision. While our review of the record reveals tactics taken by 

Schroeder and her counsel that appear suspect and possibly vexatious, we cannot find any abuse 

of discretion. As found by the district court, KJH did not present evidence of what portion of its 
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attorney fees were occasioned by frivolous actions taken by Schroeder. We find that the county 

court did not abuse its discretion in finding that KJH was not entitled to an award of its full attorney 

fees and the district court did not err in affirming the order denying KJH’s request for attorney 

fees.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court, which affirmed the 

county court’s orders.

AFFIRMED.