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297 Nebraska Reports

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 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.

3. Statutes: Property: Appeal and Error. The interpretation of a statute, including the interpretation of the lis pendens statute, is a question 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 determined 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 presented and submitted to it for disposition.

Nebraska Supreme Court Online Library

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

10/27/2017 01:11 AM CDT
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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 occupies 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 substantive 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, 

Kelch, 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 intervenor 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 disputed 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 disputed property. Jacobsen filed an answer denying Brown’s 

claim of adverse possession and setting forth several affirmative 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 disputed 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 substantial state and federal funds in the acquisition and improvement of the disputed property, and would be “liable to reimburse 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 “DefendantInterven[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 affirmative 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 affirmative 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 judgment did not dismiss the State from the quiet title action or 

make any findings regarding the merits of the adverse possession 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 conference 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 conduct 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 possession. 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 outcome 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 subsequent 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 conference. 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 purchaser 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 evidence 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 disputed 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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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 interpretation 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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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 history 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 affecting 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 legislative 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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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 subsequently 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 

pendens] 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 conveyance or encumbrance is subsequently executed or subsequently 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 property. 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 availability 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 Had Right

to Offer Evidence

After finding the State had sufficient interest to intervene 

in the action, the district court concluded the State’s status 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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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 closing [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 relevant part:

Any person who has or claims an interest in the matter 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 plaintiff . . . .

[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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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 possession 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 subsequent 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 evidence to defend against the claim of adverse possession was 

not only incompatible with the rights of a subsequent purchaser 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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[14] Lis pendens is a procedural mechanism intended to 

alert prospective purchasers about property disputes and protect 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 illustrates 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 necessary 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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We conclude that once the State intervened as a party to the 

quiet title action, it was error not to allow the State to participate fully and offer evidence.

[16] 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.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 evidence 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.

Reversed 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.