Nebraska Advance Sheets

KOTROUS v. ZERBE 1033

Cite as 287 Neb. 1033

Jimmie Kotrous, appellant, v. 

Ryan Zerbe et al., appellees.

___ N.W.2d ___

Filed April 24, 2014. No. S-13-589.

1. Motions to Dismiss: Jurisdiction: Appeal and Error. Aside from factual findings, the granting of a motion to dismiss for a lack of subject matter jurisdiction 

is subject to a de novo review.

2. Judgments: Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach its 

conclusion independent of the trial court.

3. Jurisdiction: Words and Phrases. Subject matter jurisdiction is a court’s power 

to hear and determine a case in the general class or category to which the proceedings belong and to deal with the general subject involved in the action before 

the court and the particular question which it assumes to determine.

4. Constitutional Law: Jurisdiction: Words and Phrases. The terms “chancery” 

and “common-law” jurisdiction used in Neb. Const. art. V, § 9, must be read in 

the light of their historical use and definition when incorporated as a part of the 

state Constitution of 1875.

5. Courts: Jurisdiction. District courts have jurisdiction over any civil proceeding 

that could have been brought in the English equity or common-law courts.

6. Courts: Jurisdiction: Legislature. The “common-law” jurisdiction conferred to 

the district courts is beyond the power of the Legislature to limit or control.

7. Actions: Contribution. An action for contribution for fence construction or 

maintenance is not a common-law cause of action.

8. Courts: Jurisdiction: Contribution. Neb. Rev. Stat. § 34-112.02 (Reissue 2008) 

explicitly confers jurisdiction over contribution cases related to division fences to 

the county courts.

9. Breach of Contract. Breach of contract is a common-law action.

10. Pleadings: Notice. Under the liberalized rules of notice pleading, a party is 

only required to set forth a short and plain statement of the claim showing that 

the pleader is entitled to relief. The party is not required to plead legal theories or cite appropriate statutes so long as the pleading gives fair notice of the 

claims asserted.

11. Breach of Contract: Pleadings: Proof. For breach of contract, the plaintiff must 

plead the existence of a promise, its breach, damages, and compliance with any 

conditions precedent that activate the defendant’s duty.

Appeal from the District Court for Knox County: James G. 

Kube, Judge. Reversed and remanded for further proceedings.

George H. Moyer, of Moyer & Moyer, for appellant.

James P. Meuret for appellees.
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1034 287 NEBRASKA REPORTS

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

McCormack, J.

NATURE OF CASE

Jimmie Kotrous filed a complaint against defendants Ryan 

Zerbe; Lyle J. Sukup; Kristen A. Sukup; Ryan Camden; 

AgriBank FCB; and Farm Credit Services of America, FLCA, 

seeking payment for a boundary fence he built between his 

property and the property in which the defendants have or had 

an interest. The district court for Knox County dismissed the 

complaint for lack of subject matter jurisdiction, finding that 

the county courts had exclusive jurisdiction over fence contribution cases. Kotrous now appeals.

BACKGROUND

In the complaint filed with the district court, Kotrous alleged 

that he had an agreement with the Sukups to build a new 

boundary fence between his property and the Sukups’ property. 

As part of this agreement, Kotrous alleged that the Sukups 

agreed Kotrous would build the entirety of the fence and that 

both parties would share equally in the cost. Kotrous and three 

other people constructed the fence using supplies and equipment obtained by Kotrous. The Sukups never paid Kotrous and 

later sold their land to Zerbe and Camden. Zerbe and Camden 

then gave a deed of trust to AgriBank FCB and Farm Credit 

Services of America. Kotrous sought damages from each of 

these defendants.

The district court granted Zerbe and Camden’s motion to 

dismiss solely on the ground that the district court lacked subject matter jurisdiction. The district court found that Kotrous’ 

cause of action arose under Nebraska’s “fence law,” which is 

codified under Neb. Rev. Stat. §§ 34-101 to 34-117 (Reissue 

2008 & Cum. Supp. 2012). It held that under § 34-112.02, the 

Legislature had granted jurisdiction to the county courts to the 

exclusion of the district courts. Kotrous now appeals.

ASSIGNMENT OF ERROR

Kotrous assigns that the district court erred by dismissing 

the complaint for lack of subject matter jurisdiction.
Nebraska Advance Sheets

KOTROUS v. ZERBE 1035

Cite as 287 Neb. 1033

STANDARD OF REVIEW

[1,2] Aside from factual findings, the granting of a motion 

to dismiss for a lack of subject matter jurisdiction is subject to 

a de novo review.1 To the extent an appeal calls for statutory 

interpretation or presents questions of law, an appellate court 

must reach its conclusion independent of the trial court.2

ANALYSIS

The sole question presented by this appeal is whether the 

district court has subject matter jurisdiction over Kotrous’ 

complaint. Kotrous argues that his complaint is not simply 

an action for contribution, but is also a common-law contract 

action which is subject to the district court’s jurisdiction. 

We agree.

[3-5] Subject matter jurisdiction is a court’s power to hear 

and determine a case in the general class or category to which 

the proceedings belong and to deal with the general subject 

involved in the action before the court and the particular 

question which it assumes to determine.3 Neb. Const. art. V, 

§ 9, provides that “district courts shall have both chancery 

and common law jurisdiction, and such other jurisdiction 

as the Legislature may provide.” The terms “chancery” and 

“common-law” jurisdiction must be read in the light of their 

historical use and definition when incorporated as a part of 

the state Constitution of 1875.4 Accordingly, we have held that 

district courts have jurisdiction over any civil proceeding that 

could have been brought in the English equity or commonlaw courts.5

[6] The “common-law” jurisdiction conferred to the district courts is beyond the power of the Legislature to limit or 

control.6 Thus, although the Legislature can grant jurisdiction 

1 Trumble v. Sarpy County Board, 283 Neb. 486, 810 N.W.2d 732 (2012).

2 Id.

3 Schweitzer v. American Nat. Red Cross, 256 Neb. 350, 591 N.W.2d 524 

(1999).

4 State, ex rel. Wright, v. Barney, 133 Neb. 676, 276 N.W. 676 (1937).

5 Id.

6 See Susan L. v. Steven L., 273 Neb. 24, 729 N.W.2d 35 (2007).
Nebraska Advance Sheets

1036 287 NEBRASKA REPORTS

to county courts over specific actions, the district court still 

maintains concurrent original jurisdiction for common-law and 

equity actions.7

[7] An action for contribution for fence construction or 

maintenance is not a common-law cause of action.8 At common law, a land owner could not be compelled to build a partition fence.9

 A party, therefore, by the erection of such fence, 

acquired no right of action for contribution from the owner of 

adjoining land.10

To create a cause of action for contribution, the Nebraska 

Legislature passed a “fence law,” which directs that two or 

more adjoining landowners shall construct and maintain a 

division fence between them, with the costs being equitably 

allocated between the landowners, unless otherwise agreed to 

by the adjoining landowners.11 Should an adjoining landowner 

refuse to share in the costs, the landowner is empowered to 

bring an action for contribution.12 The landowner may commence the “action in the county court of the county where the 

land is located.”13 To commence the action for contribution, the 

landowner shall file “a fence dispute complaint . . . provided to 

the plaintiff by the clerk of the county court.”14

[8,9] By its plain terms, we find that § 34-112.02 explicitly 

confers jurisdiction over contribution cases related to division 

fences to the county courts. But Nebraska’s “fence law” cannot deprive the district court of its subject matter jurisdiction 

over common-law causes of action. And breach of contract is a 

common-law action.15

7 Iodence v. Potmesil, 239 Neb. 387, 476 N.W.2d 554 (1991).

8 See Burr v. Hamer, 12 Neb. 483, 11 N.W. 741 (1882).

9 Id.

10 Id.

11 § 34-102.

12 § 34-112.02.

13 § 34-112.02(2).

14 Id.

15 See Tilt-Up Concrete v. Star City/Federal, 261 Neb. 64, 621 N.W.2d 502 

(2001).
Nebraska Advance Sheets

KOTROUS v. ZERBE 1037

Cite as 287 Neb. 1033

[10,11] To determine whether Kotrous pled breach of contract, we evaluate the complaint. Under the liberalized rules 

of notice pleading, a party is only required to set forth a short 

and plain statement of the claim showing that the pleader is 

entitled to relief.16 The party is not required to plead legal theories or cite appropriate statutes so long as the pleading gives 

fair notice of the claims asserted.17 For breach of contract, 

the plaintiff must plead the existence of a promise, its breach, 

damages, and compliance with any conditions precedent that 

activate the defendant’s duty.18

Here, we find that Kotrous set forth a short and plain 

statement showing why he was entitled to relief for breach 

of contract. Kotrous pled that the Sukups promised to pay 

for one-half of the fence, that they did not pay, that such 

breach caused damages, and that the fence construction was 

completed.

Therefore, the district court erred in dismissing Kotrous’ 

complaint. The district court has jurisdiction to consider 

Kotrous’ breach of contract claims; his common-law, quasicontract claims19; and any other common-law causes of 

action that Kotrous properly pled. The district court does not, 

however, have jurisdiction over any contribution claim arising under Nebraska’s “fence laws” found under §§ 34-101 

to 34-117.

CONCLUSION

For the reasons stated herein, we reverse the judgment and 

remand the cause for further proceedings.

 Reversed and remanded for

further proceedings.

16 Davio v. Nebraska Dept. of Health & Human Servs., 280 Neb. 263, 786 

N.W.2d 655 (2010).

17 Id.

18 See Production Credit Assn. v. Eldin Haussermann Farms, 247 Neb. 538, 

529 N.W.2d 26 (1995).

19 See City of Scottsbluff v. Waste Connections of Nebraska, Inc., 282 Neb. 

848, 809 N.W.2d 725 (2011).