Edgar Bohlmann v. Chandra Bohlmann and Shane Strazdas

Edgar Bohlmann filed a forcible entry and detainer action against Chandra Bohlmann and Shane Strazdas (collectively appellees), requesting restitution of real property Edgar had allegedly conditionally quitclaimed to Chandra and collateral relief. Appellees counterclaimed, asserting that Chandra owned the property. Following a summary hearing, the district court dismissed both claims. Edgar timely appeals. Because a district court does not have subject matter jurisdiction over a forcible entry and detainer action when a title dispute must be determined to resolve the action and the evidence in the instant case revealed a title dispute, we dismiss this appeal.

BACKGROUND

In June 2001, Edgar divided his assets, and as part of that division, he wished to give the real property located on Valley Street in Omaha, Nebraska, to Chandra, his granddaughter. Edgar, joined by Michael H. Bohlmann and Michelle Bohlmann as cograntors, executed a quitclaim deed (the first deed) showing consideration of $1 on June 23, 2001. The first deed was recorded July 2. Edgar testified there was one condition regarding the sale: that Chandra sign another deed conveying the property back to him. Thus, on June 23, Edgar had Chandra sign a quitclaim deed reconveying the property to Edgar (the second deed), which also showed consideration of $1. Edgar did not record the second deed until June 2002.

Appellees moved onto the property in approximately late June 2001. They paid the property taxes and did not pay rent. According to Edgar's testimony, appellees failed to maintain the property to his satisfaction because the house needed to be painted and the neighbors had complained about weeds and dog feces in the yard. On June 19, 2002, Edgar visited the property and demanded that the house be painted by the end of the month.

Chandra did not testify at the summary hearing in the instant case, but without objection, the court received in evidence a transcript from a hearing held on August 29, 2002, relating to a protection order she had sought against Edgar. In the protection order proceeding, Chandra testified that after Edgar left on June 19, in order to exclude Edgar from the property, the garage door opener was unplugged and the locks were changed. When asked who owned the property, Chandra testified, "Apparently my grandfather [Edgar] does." She further testified that at one time, she assumed she owned it. Chandra testified that she signed the second deed "[w]ithout my knowledge."

Edgar recorded the second deed on June 20, 2002. On August 31, he had appellees served with a notice to leave the premises. Despite this notice, appellees remained on the property.

On September 19, 2002, Edgar filed a petition in the instant case, alleging that he was the owner of record of the real property at issue. Although we recognize that the name of the initial pleading in such actions was changed to "complaint" by 2002 Neb. Laws, L.B. 876, which became operative on January 1, 2003 (but after the summary hearing in the instant case), we refer to Edgar's pleading as the "petition." The petition alleged that Edgar had made a conditional gift of the property to Chandra, wherein he had required that Chandra keep the property in good repair and condition and that she take no actions contrary to Edgar's wishes. Edgar reserved the discretion to determine whether the property was kept in good repair and condition. The petition also alleged that appellees had damaged the premises by failing to maintain adequate exterior paint, failing to maintain the lawn and landscaping, and failing to remove dog feces from the backyard. Edgar requested judgment for immediate restitution of the premises pursuant to Neb. Rev. Stat. §§ 25-21,219 to 25-21,235 (Reissue 1995 & Cum. Supp. 2002), along with damages and costs.

On October 1, 2002, appellees filed an answer and counterclaim. The answer generally denied Edgar's allegations. The counterclaim alleged that Chandra believed Edgar was making an unconditional gift to her with the first deed and that Chandra did not remember signing the second deed. The counterclaim also alleged that appellees had made numerous repairs to the property at considerable expense believing that Chandra owned the property. Appellees alleged that they had no remedy at law, and they requested the following: that the court continue the restitution hearing until they could be heard on the counterclaim, that Edgar be required to set forth the nature of his claim to the property, that all adverse claims to said property be determined by a decree of the court, that the court find and determine Chandra is the legal and lawful owner of said property in fee simple absolute, that the decree permanently enjoin Edgar from asserting any adverse claim against Chandra, and that Chandra be awarded the costs of the action.

The district court filed its order on October 18, 2002. The court found that there were "genuine issues" as to whether appellees were in unlawful possession and as to whether Edgar had a right to possession of the property. Based on the evidence, the court could not find that the appellees unlawfully possessed the property or that Edgar had a right to possession. With regard to the counterclaim, the court held that it did not have jurisdiction to determine appellees' legal ownership or to enjoin Edgar from asserting claims to the property and that an adequate remedy was available under the Nebraska quiet title statutes. The court therefore found that Edgar's petition should be dismissed at his cost and that the counterclaim should be dismissed at the cost of appellees. The court subsequently overruled Edgar's motion for new trial, and Edgar timely appealed. No cross-appeal was taken regarding the court's dismissal of the counterclaim, and therefore, any issue related to its dismissal is not before this court.

ASSIGNMENTS OF ERROR

Edgar alleges the trial court erred in (1) considering the validity of his title to the property when the answer did not contain an affirmative defense asserting that appellees possessed an equitable title to the property and possession thereof and (2) failing to find that he was entitled to immediate restitution of the property.

STANDARD OF REVIEW

The question of jurisdiction is a question of law, upon which an appellate court reaches a conclusion independent of the trial court. Cummins Mgmt. v. Gilroy, 266 Neb. 635, 667 N.W.2d 538 (2003).

ANALYSIS
Assertion of Affirmative Defense.

Edgar argues that the issue of equitable title was not properly raised because appellees' answer did not allege it as an affirmative defense. We recognize that in Brennan v. Brennan, 214 Neb. 125, 332 N.W.2d 696 (1983), a case brought pursuant to the Uniform Residential Landlord and Tenant Act, the Nebraska Supreme Court acknowledged that generally, a claim of title is an affirmative defense, and that an affirmative defense not pleaded raises no issue. However, the defendants in the Brennan case did not answer or otherwise plead to the petition. In Farmer v. Pitts, 108 Neb. 9, 16, 187 N.W. 95, 97 (1922), the Supreme Court stated:

Under the plea of not guilty or under an answer of general denial in cases of forcible entry and detention brought by a landlord against a tenant, the tenant is entitled to all the defenses, whether of law or equity, which are warranted by the evidence, and in this case it appears that the facts, the law and the equities are all on the side of the tenant

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See, also, 2 Edward Cole Fisher, Practice and Procedure in Courts of Limited Jurisdiction in Nebraska §§ 399 to 400 (1950) (in forcible entry and detainer action, only defense pleading necessary is oral plea of "not guilty," under which defendant may interpose all defenses; practical effect of assertion of equitable title is to divest court of jurisdiction).

Furthermore, even if the general pleading rules were applicable in a forcible entry and detainer action, at the time the pleadings in this case were filed, Neb. Rev. Stat. §§ 25-811 and 25-812 (Reissue 1995) were in effect. These statutes were repealed by 2002 Neb. Laws, L.B. 876, which became operative on January 1, 2003, well after the summary hearing in the instant case, and comparable provisions are now found at Neb. Ct. R. of Pldg. in Civ. Actions 8 and 13 (rev. 2003). Section 25-811 required that any counterclaim or setoff be contained in the answer, and § 25-812 provided that the defendant may set forth in the answer as many grounds of defense, counterclaim, and setoff as he or she may have.

In the instant case, Chandra raised the issue of equitable title in her counterclaim, which was included in the same pleading as her answer. There is no doubt that the parties were aware of the issues and that the issues were tried together. At the summary hearing, Edgar's attorney lodged a relevancy objection after Edgar was asked about his understanding of such issues when he deeded the property to Chandra. Chandra's attorney stated, "Well, I believe all the issues are now brought to bear, Judge, because of the counterclaim. All those become issues relative to the ownership of the property and the facts and circumstances that surround the conveyance." The court overruled the relevancy objection. We conclude the issue of title was raised and considered by the district court, which actions require that we also consider it.

Jurisdiction.

The parties agree that Edgar filed his petition as an action for forcible entry and detainer. A forcible entry and detainer action is limited in scope. Such an action is

a special statutory proceeding designed to provide a speedy and summary method "'by which the owner of real estate might regain possession of it from one who had unlawfully and forcibly entered into and detained possession thereof, or one who, having lawfully entered, then unlawfully and forcibly detained possession.'" Sporer v. Herlik, 158 Neb. 644, 649, 64 N.W.2d 342, 346 (1954) (quoting Blachford v. Frenzer, 44 Neb. 829, 62 N.W. 1101 (1895))

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Cummins Mgmt. v. Gilroy, 266 Neb. 635, 639, 667 N.W.2d 538, 542-43 (2003). The evidence in the instant case clearly establishes that appellees did not unlawfully and forcibly enter and detain possession of the property. However, given Edgar's position, it could be argued that appellees lawfully entered the property but then unlawfully and forcibly detained possession.

Before considering the merits of the appeal, however, we must consider the effect of the title dispute raised by appellees. If a district court would be required to determine a title dispute in order to resolve the forcible entry and detainer action, it must dismiss the case for lack of jurisdiction. Cummins Mgmt. v. Gilroy, supra. The Nebraska Supreme Court stated in Cummins Mgmt. v. Gilroy, 266 Neb. at 638, 667 N.W.2d at 542:

For well over a century, we have 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. See, e.g., Hogan v. Pelton, 210 Neb. 530, 315 N.W.2d 644 (1982); Jones v. Schmidt, 163 Neb. 508, 80 N.W.2d 289 (1957); Miller v. Maust, 128 Neb. 453, 259 N.W. 181 (1935); Lipp v. Hunt, 25 Neb. 91, 41 N.W. 143 (1888); Petit v. Black, 13 Neb. 142, 12 N.W. 841 (1882)

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It further stated, "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." Cummins Mgmt. v. Gilroy, 266 Neb. at 639, 667 N.W.2d at 543.

Before 1984, only courts of limited jurisdiction were empowered with original jurisdiction over forcible entry and detainer actions. In 1984, the Legislature extended original jurisdiction over such actions to district courts. The Cummins Mgmt. court rejected the argument that a district court, as a general jurisdiction trial court with equitable powers, could therefore try and determine questions of title in forcible entry and detainer actions filed in district court. The Supreme Court determined that in forcible entry and detainer actions, the district court sits as a special statutory tribunal to summarily decide the issues authorized by statute, and not as a court of general jurisdiction with the power to hear and determine other issues. Cummins Mgmt. v. Gilroy, supra.

The Cummins Mgmt. court also stated that the mere filing of an answer asserting a title claim by the defendant in a forcible entry and detainer action is not enough to deprive a district court of jurisdiction, but that if, on trial, it should appear that the action is not for the recovery of the possession of the premises but to determine a question of title, the district court will have no authority to proceed.

In the instant case, the evidence shows that when the first deed was recorded, appellees had lawfully entered the premises. However, the evidence revealed issues of title regarding the effect and validity of the second deed. Such issues divested the district court of jurisdiction over the forcible entry and detainer action. See Cummins Mgmt. v. Gilroy, 266 Neb. 635, 667 N.W.2d 538 (2003). Although the district court articulated its determination in somewhat different language regarding Edgar's petition, the court recognized the jurisdictional problem isasmuch as it dismissed appellees' counterclaim.

When a lower court lacks the authority to exercise its subject matter jurisdiction to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the lower court. Cummins Mgmt. v. Gilroy, supra.

CONCLUSION

We conclude that the district court correctly dismissed the action inasmuch as the court was divested of subject matter jurisdiction, even though the district court articulated its decision in somewhat different language. Because the district court lacked subject matter jurisdiction over this matter, so do we. Accordingly, we dismiss the appeal.

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of the Court's opinion.

Appeal dismissed in favor of Defendent.

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Reported by L. Hargraves