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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

WILKINSON DEVELOPMENT v. FORD & FORD INVESTMENTS

Cite as 311 Neb. 476

Wilkinson Development, Inc., appellee, 

v. Ford & Ford Investments, a general 

partnership, appellee, and PSK, LLC, 

a Nebraska limited liability 

company, appellant.

___ N.W.2d ___

Filed April 28, 2022. No. S-21-496

1. Motions to Vacate: Appeal and Error. The decision of a district 

court to deny the vacation of its order will be affirmed absent an abuse 

of discretion.

2. Statutes: Property. The interpretation of a statute, including the interpretation of the lis pendens statute, is a question of law.

3. Judgments: Appeal and Error. On a question of law, an appellate court 

is obligated to reach a conclusion independent of the determination 

reached by the court below.

4. Actions: Property: Notice: Words and Phrases. The term “lis pendens” 

literally means a pending lawsuit. Under this common-law doctrine, the 

pendency of a suit affecting title to real property is constructive notice 

to the world of the disputed claim.

5. Actions: Property: Words and Phrases. 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.

6. Property: Intent. 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.

7. 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.

Nebraska Supreme Court Online Library

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

05/06/2022 12:06 AM CDT
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

WILKINSON DEVELOPMENT v. FORD & FORD INVESTMENTS

Cite as 311 Neb. 476

Appeal from the District Court for Dawson County: James 

E. Doyle IV, Judge. Affirmed.

Blake E. Johnson, of Bruning Law Group, for appellant.

Allen L. Fugate for appellee Wilkinson Development, Inc.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Papik, 

and Freudenberg, JJ., and Schreiner, District Judge.

Heavican, C.J.

INTRODUCTION

Wilkinson Development, Inc. (Wilkinson), filed an action 

for specific performance of a real estate contract concerning 

the purchase of commercial real estate located in Lexington, 

Nebraska. The district court found in favor of Wilkinson and 

against the seller, Ford & Ford Investments (Ford). PSK, LLC, 

a subsequent purchaser of the real estate in question, then filed 

a motion to vacate the decree of specific performance and 

also sought an order of joinder. The district court denied that 

motion. PSK appeals. We affirm.

BACKGROUND

Wilkinson, as buyer, and Ford, as seller, entered into a contract on August 30, 2019, for the purchase of commercial real 

estate located in Dawson County, Nebraska. The sale price was 

$325,000, and the transaction was set to close on November 

20. Wilkinson sought an extension of the closing date, which 

was permitted by the parties’ contract assuming that Wilkinson 

advanced earnest money to Ford. That advance was made, and 

closing was set for December 4.

On November 21, 2019, the real estate agent who had been 

representing both buyer and seller informed Wilkinson that the 

agreement had been declared void by Ford. During the same 

time period, the agent was communicating with PSK about the 

possibility of PSK purchasing the property.

On November 21, 2019, Wilkinson delivered the full purchase price to the closing agent and notified the agent that 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

WILKINSON DEVELOPMENT v. FORD & FORD INVESTMENTS

Cite as 311 Neb. 476

it had done so. On November 22, a purchase agreement between 

PSK and Ford was signed at a price of $365,000, with closing 

set for November 26. There is evidence in the record indicating 

that at that time, Wilkinson was unaware of the negotiations or 

agreement Ford had reached with PSK.

On November 25, 2019, Wilkinson filed a complaint for specific performance. On November 26, Wilkinson filed a notice 

of lis pendens with the Dawson County register of deeds. Also 

on November 26, Ford and PSK entered into a second purchase 

agreement with a closing date of December 17. On December 

4, the closing agent for the PSK/Ford agreement informed the 

parties to that agreement that it could not offer title insurance 

because of the existence of the Wilkinson/Ford agreement. 

Ford was served with a summons for the specific performance 

complaint on December 6.

PSK and Ford closed the sale for the property on December 

16, 2019. On December 19, a partnership warranty deed from 

Ford to PSK was recorded with the Dawson County register 

of deeds.

On March 4, 2021, the district court granted Wilkinson’s 

complaint for specific performance. Ford did not appeal this 

determination and does not appear in this appeal. On March 26, 

PSK sought vacation of the decree and an order of joinder. A 

hearing was held on that motion and evidence was offered. The 

district court denied PSK’s motion. PSK appeals.

ASSIGNMENTS OF ERROR

PSK assigns that the district court erred in determining that 

(1) joinder of PSK was not necessary to provide the court with 

subject matter jurisdiction; (2) the Nebraska lis pendens statute eliminated Wilkinson’s and the court’s obligation to join 

PSK; (3) knowledge of a third party’s interest in the subject 

property, acquired after the commencement of the action, does 

not give rise to the compulsory joinder requirement of Neb. 

Rev. Stat. § 25-323 (Reissue 2016); (4) PSK had no interest in 

the subject property so as to require joinder; (5) PSK knew a 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

WILKINSON DEVELOPMENT v. FORD & FORD INVESTMENTS

Cite as 311 Neb. 476

valid, binding contract existed between Ford and Wilkinson at 

the time it executed the PSK contract; and (6) PSK knew that 

Wilkinson had paid the full purchase price for the property to 

the escrow agent at the time it executed the PSK contract.

STANDARD OF REVIEW

[1-3] The decision of a district court to deny the vacation of 

its order will be affirmed absent an abuse of discretion. 1 The 

interpretation of a statute, including the interpretation of the lis 

pendens statute, is a question of law. 2 On a question of law, an 

appellate court is obligated to reach a conclusion independent 

of the determination reached by the court below. 3

ANALYSIS

PSK’s primary argument on appeal is that the district court 

erred in not vacating the decree of specific performance and 

remanding the matter for further proceedings on the basis that 

Wilkinson was required to join PSK as a necessary and indispensable party. PSK argues that Wilkinson and the court had an 

obligation to join it, irrespective of the fact that Wilkinson had 

filed a notice of lis pendens.

Lis Pendens Propositions of Law.

[4] The term “lis pendens” literally means a pending lawsuit. Under this common-law doctrine, the pendency of a suit 

affecting title to real property is constructive notice to the 

world of the disputed claim. 4 This principle has been codified 

in Nebraska statute. Neb. Rev. Stat. § 25-531 (Reissue 2016) 

provides, as relevant:

In all actions brought to affect the title to real property, 

the plaintiff may either at the time of filing his or her 

1 See Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (2014).

2 Brown v. Jacobsen Land & Cattle Co., 297 Neb. 541, 900 N.W.2d 765 

(2017).

3 Id.

4 Id.
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

WILKINSON DEVELOPMENT v. FORD & FORD INVESTMENTS

Cite as 311 Neb. 476

complaint or 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. . . . 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.

[5-7] 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. 5 “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 “[T]he lis pendens statute 

serves to hold disputed property within the court’s jurisdiction 

until the parties’ rights are finally determined.” 7 In Hadley v. 

Corey, we noted:

“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.” 8

5 Id.

6 Id. at 551, 900 N.W.2d at 772.

7 Id.

8 Hadley v. Corey, 137 Neb. 204, 215, 288 N.W. 826, 832 (1939).
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

WILKINSON DEVELOPMENT v. FORD & FORD INVESTMENTS

Cite as 311 Neb. 476

It is undisputed that Wilkinson filed a notice of lis pendens 

with the Dawson County register of deeds on November 26, 

2019, and that PSK recorded its deed to the property in that same 

office on December 19. Thus, for purposes of Nebraska’s lis 

pendens statute, § 25-531, the lis pendens notice was “constructive notice” and PSK a “person whose conveyance [was] subsequently executed or subsequently recorded shall be deemed 

to be a subsequent purchaser . . . and shall be bound by all 

proceedings taken . . . after the filing of such notice to the 

same extent as if he or she were made party to the action.”

Equitable Conversion.

Still, PSK makes several arguments as to why the notice 

of lis pendens was insufficient notice. First, relying on the 

doctrine of equitable conversion, PSK argues that it obtained 

“equitable title” to the property as of November 22, 2019, the 

date of its purchase agreement with Ford, which was prior to 

the filing of the notice of lis pendens and that as such, it was 

not bound by that notice. 9

We reject this assertion. Generally speaking, this equitable 

doctrine provides that

“if the owner of real estate enters into a contract of sale 

whereby the purchaser agrees to buy and the owner agrees 

to sell it and the vendor retains the legal title until the 

purchase money or some part of it is paid, the ownership 

of the real estate as such passes to and vests in the purchaser, and that from the date of the contract the vendor 

holds the legal title as security for a debt as trustee for 

the purchaser.” 10

But PSK overlooks certain exceptions to that rule:

“[W]here the third-party purchaser is (1) made a party 

to the suit before rendition of judgment, or (2) has 

9 Brief for appellant at 16.

10 DeBoer v. Oakbrook Home Assn., 218 Neb. 813, 816, 359 N.W.2d 768, 

771 (1984).
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

WILKINSON DEVELOPMENT v. FORD & FORD INVESTMENTS

Cite as 311 Neb. 476

knowledge of the adverse claim at the time of signing of 

the executory contract, or (3) has paid only a portion of 

the purchase price before the lis pendens is filed.” 11

The facts show that at the very least, PSK was aware that 

there was a purchase agreement between Wilkinson and Ford 

that predated PSK’s own purchase agreement with Ford. As 

such, we conclude that PSK had knowledge of Wilkinson’s 

adverse claim. Nor is there any evidence in the record that PSK 

had paid the entire purchase price in advance of Wilkinson’s 

filing of its notice of lis pendens. For these reasons, we decline 

to apply the doctrine of equitable conversion on these facts and 

find no merit to this assertion by PSK.

Knowledge of Interest in Property.

PSK also contends that the lis pendens notice did not relieve 

Wilkinson of the obligation to join it once it learned of PSK’s 

purported interest. We disagree.

It is undisputed that Wilkinson was, at some point, aware 

that Ford and PSK had entered into a separate purchase agreement on the property. But when that knowledge was gained 

impacts our analysis. Assuming, without deciding, for example, 

that Wilkinson had been aware of the PSK/Ford agreement at 

the time it filed the lis pendens notice, the lis pendens would 

have been insufficient notice to PSK that it would be considered a subsequent purchaser. But there is no evidence in the 

record that Wilkinson had such knowledge at the time of the 

filing of the lis pendens.

PSK relies on Brown v. Jacobsen Land & Cattle Co. 12

and Munger v. Beard & Bro. 13 to support its assertion that 

Wilkinson had a duty to join PSK once it became aware 

11 DeShields v. Broadwater, 338 Md. 422, 445, 659 A.2d 300, 311 (1995) 

(quoting Meyering v. Russell, 53 Mich. App. 695, 220 N.W.2d 121 (1974), 

reversed on other grounds 393 Mich. 770, 224 N.W.2d 280).

12 Brown v. Jacobsen Land & Cattle Co., supra note 2.

13 Munger v. Beard & Bro., 79 Neb. 764, 113 N.W. 214 (1907).
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Nebraska Supreme Court Advance Sheets

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WILKINSON DEVELOPMENT v. FORD & FORD INVESTMENTS

Cite as 311 Neb. 476

of the PSK/Ford purchase agreement, at whatever point that 

might be. However, those cases do not stand for that proposition; rather, the cases support only a conclusion that what matters is the plaintiff’s knowledge at the time of the filing of the 

lis pendens. There is nothing in those cases that would support 

a conclusion that in the aftermath of a lis pendens notice, a 

plaintiff has a continuing obligation to join potential parties.

Necessary and Indispensable Parties.

PSK also directs us to § 25-323, as well as this court’s decision in Midwest Renewable Energy v. American Engr. Testing. 14

There, we discussed necessary and indispensable parties. PSK 

contends that it is a necessary and indispensable party, that 

Wilkinson’s specific performance action cannot be litigated 

without affecting PSK’s rights, and that as such, PSK should 

have been joined. Even assuming that PSK would be considered a necessary and indispensable party—an analysis we do 

not undertake here—we still disagree that there was error on 

the part of the district court in failing to join PSK.

PSK’s reliance on § 25-323 to support the conclusion that 

it must be joined would read out of existence the portion of 

§ 25-531 that holds that anyone recording an interest in property after the filing of a notice of lis pendens is considered a 

subsequent purchaser 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.” We 

have repeatedly held that when there is a conflict between two 

statutes on the same subject, the specific statute controls over 

the general. 15 Here, we conclude that the lis pendens statute, 

which is specific to notice afforded to subsequent purchasers 

in the event of litigation regarding real property, is the more 

specific over the general joinder statute.

14 Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894 

N.W.2d 221 (2017).

15 See, e.g., Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018).
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

WILKINSON DEVELOPMENT v. FORD & FORD INVESTMENTS

Cite as 311 Neb. 476

Intervention.

PSK could have sought to intervene, but declined to do so. 

It argues on appeal that its failure to intervene does not excuse 

the failure to join it. But there was no failure in not joining it. 

On the other hand, seeking to intervene would have preserved 

PSK’s assertion that it should have been heard in the underlying specific performance action.

There is no merit to any of PSK’s assignments of error. We 

therefore affirm the district court’s denial of PSK’s motion 

to vacate.

CONCLUSION

We affirm the decision of the district court.

Affirmed.

Funke, J., not participating.