Borrenpohl v. DaBeers Properties

evidence of sexual contact. While Schreiner raised questions
about the DNA evidence, there is sufficient evidence to support
the jury’s apparent conclusion that Schreiner’s explanation for
how his sperm got on k.g.’s underwear was less convincing
than the State’s.
In short, the evidence is more than sufficient to support
Schreiner’s sexual assault conviction. We find no merit to
Schreiner’s final assignment of error.
Iv. CONCLUSION
We find no merit to Schreiner’s evidentiary arguments and no
abuse of discretion in the court’s conduct of the trial proceed-
ings. The evidence is certainly sufficient to support Schreiner’s
sexual assault conviction and the revocation of his probation.
And finally, we do not address Schreiner’s challenges to lifetime
community supervision, because they are not ripe for adjudica-
tion. The judgments of the district court are affirmed.
affiRmed .
mccoRmacK, J., participating on briefs.
heavican, C.J., not participating.
miKe B oRRenPohl , doing Business as B oRRenPohl excavating ,
aPPellant , and steve B aRtels , doing Business as steve
B aRtels constRuction , aPPellee and cRoss - aPPellant ,
v . da B eeRs PRoPeRties , l.l.c., a limited liaBility
comPany , and the caRson national B anK of
auBuRn , aPPellees , and B anK of B ennington ,
aPPellee and cRoss - aPPellee .
755 N.W.2d 39
Filed August 15, 2008. 	No. S-07-980.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
426 	276 NebRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

3. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.
4. Contracts: Mechanics’ Liens: Notice: Time. The prime purpose of the notice
of commencement is to eliminate as a controvertible question of fact the time of
visible commencement of operations by providing a method to determine this time
with certainty.
5. Mechanics’ Liens: Intent. Where real-property-related documents are deliv-
ered simultaneously without instructions, the relative priority of lien interests
represented by the documents is resolved by considering the intentions of
the parties.
6. Summary Judgment: Proof. A party makes a prima facie case that it is entitled
to summary judgment by offering sufficient evidence that, assuming it went uncon-
tested at trial, would entitle the party to a favorable verdict.
7. ____: ____. If the moving party makes a prima facie case that it is entitled to sum-
mary judgment, the burden then shifts to the nonmoving party to avoid summary
judgment by producing admissible contradictory evidence which raises a genuine
issue of material fact.
Appeal from the District Court for pawnee County: daniel e.
BRyan , JR., Judge. Affirmed.
Thomas L. Morrissey, of Morrissey, Morrissey & Dalluge,
for appellant Mike borrenpohl and appellee Steve bartels.
Michael T. eversden, of Mcgrath, North, Mullin & kratz,
p.C., L.L.O., for appellee bank of bennington.
heavican , 	c.J., 	wRight , 	connolly , 	geRRaRd , 	stePhan ,
mccoRmacK, and milleR-leRman , JJ.
milleR-leRman , J.
NATURe OF CASe
This appeal involves a dispute over lien priorities. Mike
borrenpohl, 	doing 	business 	as 	borrenpohl 	excavating
(borrenpohl), and Steve bartels, doing business as bartels
Construction (bartels), filed suit in the district court for pawnee
County against Dabeers properties, L.L.C. (Dabeers); The
Carson National bank of Auburn (Carson); and the bank of
bennington (the bank) to foreclose construction liens borrenpohl
and bartels had against property owned by Dabeers (the prop-
erty) and to establish the priority of those liens. Carson and the
bank each have deeds of trust on the property.
We conclude the district court did not err when it deter-
mined that the bank’s deed of trust should have priority over
bORReNpOHL v. DabeeRS pROpeRTIeS 	427
Cite as 276 Neb. 426

the construction liens of borrenpohl and bartels and when it
granted partial summary judgment in favor of the bank. We find
no merit to the appeal and cross-appeal, and we therefore affirm
the order of the district court.
FACTS
On October 19, 2005, Dabeers and the bank executed a loan
agreement, pursuant to which the bank loaned Dabeers $66,198
to make certain improvements on the property. At the time the
parties entered into this loan agreement, Dabeers executed a
deed of trust in favor of the bank on the property. There is no
dispute in the instant appeal that Carson already had a deed of
trust in place on the property and that Carson’s lien has priority
over both the bank’s lien and the construction liens.
Also on October 19, 2005, Dabeers executed a notice of
commencement in accordance with the Nebraska Construction
Lien Act (NCLA), Neb. Rev. Stat. § 52-125 et seq. (Reissue
2004). The bank’s representative mailed both the deed of trust
and the notice of commencement in a single envelope to the
pawnee County register of deeds’ office. He did not provide
filing instructions. On October 21, the register of deeds’ office
received and recorded the documents. The notice of commence-
ment was stamped as recorded at 2:15 p.m., and the bank’s deed
of trust was stamped as recorded at 2:20 p.m.
borrenpohl and bartels both made certain improvements to the
property, and they subsequently filed construction liens against
the property relative to those improvements. bartels’ lien was
recorded on June 23, 2006, and borrenpohl’s lien was recorded
on June 30. However, because § 52-137(2) provides that “[i]f a
lien is recorded while a notice of commencement is effective . . .
the lien attaches as of the time the notice is recorded . . . ,” their
construction liens attached on October 21, 2005. On October
6, borrenpohl and bartels initiated the instant action against
Dabeers, Carson, and the bank, seeking to foreclose their con-
struction liens and establish the lien priorities.
On February 23, 2007, the bank filed a motion for partial
summary judgment, seeking a determination that its deed of trust
was superior to the construction liens of borrenpohl and bartels.
On March 26, the bank’s motion came on for hearing, and a
428 	276 NebRASkA RepORTS

total of three affidavits were offered and received into evidence.
exhibit 1 was the affidavit of the bank’s vice president, in which
he stated that “Dabeers . . . represented to the bank that [the
bank’s] Deed of Trust would be a second lien, subject only to the
lien of Carson . . . . The bank thus expected to receive a second
lien on [Dabeers’] [p]roperty . . . .” exhibit 2 was the affidavit
of Dabeers’ manager, who stated that when Dabeers granted the
bank a deed of trust, “Dabeers . . . intended that the bank would
take a lien position second only to the lien of Carson . . . and
that the interest of any mechanics’ lien claimants would be infe-
rior to that of the bank.” Dabeers’ affidavit further stated that
“Dabeers . . . at all times intended that the bank’s Deed of Trust
would be recorded before the notice of commencement and have
priority over any mechanics’ liens.” exhibit 3 was the affidavit
of Candice Tuxhorn, the deputy county clerk ex officio deputy
register of deeds for pawnee County. In her affidavit, Tuxhorn
described the procedures followed by the register of deeds’
office when it receives documents for filing by mail and there
is no transmittal letter giving filing instructions. Tuxhorn stated
that “the office records said documents in the order that they are
found in the transmittal correspondence, recording the top docu-
ment first and all subsequent documents in sequence thereafter.”
Tuxhorn further stated that when the register of deeds’ office
received the envelope from the bank containing the notice of
commencement and the bank’s deed of trust, “pursuant to the
procedures set forth [above], the Notice of Commencement was
recorded . . . on October 21, 2005 at 2:15 p.m. and [the deed of
trust] was recorded on October 21, 2005 at 2:20 p.m.”
In an order filed March 30, 2007, the district court sustained
the bank’s motion and declared that the bank’s deed of trust had
priority over the construction liens of borrenpohl and bartels.
The case proceeded to trial on issues as to other parties, and
on September 12, the district court entered amended foreclo-
sure decrees, in which it foreclosed the construction liens of
borrenpohl and bartels. As part of these decrees and relevant
to this appeal, the district court stated that in accordance with
a stipulation between the parties, by virtue of its deed of trust,
Carson had a first lien against the property. The district court
also stated that in accordance with its earlier order sustaining
bORReNpOHL v. DabeeRS pROpeRTIeS 	429
Cite as 276 Neb. 426

the bank’s motion for partial summary judgment, the bank had
a lien on the property that was superior to the construction liens
of borrenpohl and bartels. Finally, the district court stated that
borrenpohl’s and bartels’ liens had equal priority.
Due to the timing of filing the notices of appeal, see Neb.
Ct. R. App. p. § 2-101(C), borrenpohl appeals and bartels
cross-appeals. borrenpohl and bartels raise the same issue.
both borrenpohl and bartels challenge the district court’s order
that sustained the bank’s motion for partial summary judgment
and declared that the bank’s deed of trust had priority over
their construction liens. No issues are raised on appeal as to
the court’s determination that Carson had the first lien on the
property or other rulings relative to the interests of Dabeers
and Carson.
ASSIgNMeNT OF eRROR
both borrenpohl on appeal and bartels on cross-appeal claim,
restated, that the district court erred in sustaining the bank’s
motion for partial summary judgment and declaring the bank’s
deed of trust superior to their construction liens.
STANDARDS OF RevIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no gen-
uine issue as to any material fact or as to the ultimate inferences
that may be drawn from those facts and that the moving party is
entitled to judgment as a matter of law. See County of Hitchcock
v. Barger, 275 Neb. 872, 750 N.W.2d 357 (2008). In reviewing a
summary judgment, an appellate court views the evidence in the
light most favorable to the party against whom the judgment is
granted and gives such party the benefit of all reasonable infer-
ences deducible from the evidence. Id.
[3] Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
McClellan v. Board of Equal. of Douglas Cty., 275 Neb. 581,
748 N.W.2d 66 (2008).
ANALySIS
At issue in this appeal is the priority under the relevant
statutes, our case law, and the facts to be accorded a deed of
430 	276 NebRASkA RepORTS

trust and a notice of commencement received by the register of
deeds in the same envelope and without instructions. We are
asked to review the district court’s determination that, on the
record before it, the parties’ intentions rather than the record-
ing times determine priority of the liens. Upon review, we find
no error.
As noted above, bartels’ and borrenpohl’s actual construc-
tion liens were recorded on June 23, 2006, and June 30, 2006,
respectively. However, under § 52-137(2), which is found in the
NCLA and derived from the Uniform Simplification of Land
Transfers Act (USLTA), their liens attached when the notice of
commencement was effectively recorded. Therefore, the filing
of the notice of commencement controls the priority accorded
these construction liens.
borrenpohl and bartels argue that the stamp showing the time
of recording of the notice of commencement controls its prior-
ity relative to the bank’s deed of trust. Noting that the notice of
commencement was recorded 5 minutes prior to the recording of
the bank’s deed of trust, borrenpohl and bartels claim that their
construction liens attached at the time the notice of commence-
ment was recorded and that therefore, their liens were superior
to that of the bank.
In response, the bank argues that under Nebraska law, in the
circumstance when the notice of commencement and the deed of
trust are delivered to the register of deeds in the same envelope
without instructions, the liens are effectively filed simultane-
ously. The bank further argues that under Nebraska law, priori-
ties are resolved in a case of simultaneous filing by reference to
the parties’ intentions. The bank refers to the record and notes
that the representatives of Dabeers and the bank each testified
that Dabeers intended the bank’s deed of trust to have priority
over the notice of commencement and that there was no evi-
dence to the contrary. The bank argues, therefore, that because
intention controls, the bank’s deed of trust was superior to the
construction liens, as the district court determined. We agree
with the bank.
As noted above, borrenpohl’s and bartels’ liens were filed
pursuant to the NCLA. We have not previously considered the
priority of liens as between a deed of trust and a construction
bORReNpOHL v. DabeeRS pROpeRTIeS 	431
Cite as 276 Neb. 426

lien filed pursuant to the NCLA, and we therefore consider
whether the provisions of the NCLA or other relevant statutes
resolve the priority dispute raised in this appeal.
The NCLA became effective January 1, 1982, and was mod-
eled after article 5 of the USLTA. Michael Cox & Michael
McCue, Comment, The Nebraska Construction Lien Act: Which
Way to Lien? 62 Neb. L. Rev. 86 (1983). portions of article 5
of the USLTA and in particular the “notice of commencement”
documents were in turn derived from Florida lien law. Jon W.
bruce, An Overview of the Uniform Land Transactions Act and
the Uniform Simplification of Land Transfers Act, 10 Stetson L.
Rev. 1 (1980). Although the NCLA contains provisions gener-
ally addressing lien priority, e.g., §§ 52-137 and 52-139, none of
these priority-related provisions directly support borrenpohl and
bartels’ argument that the date and time stamp on the notice of
commencement controls lien priority.
[4] The notice of commencement document at issue in this
case was adopted and authorized by statute not to advance the
priority of construction liens, but, rather, to avoid the problems
associated with “hidden liens.” See Cox & McCue, supra at
118. Under prior Nebraska law, construction lien priority was
determined by the date the work on the property visibly com-
menced, and the lien attached to the property when the work
commenced even though the actual lien was not recorded until
a later date. persons searching the public records for liens
would therefore have no notice of a construction lien that
had attached but was not yet recorded. See id. The notice of
commencement provision was adopted to provide notice to
persons searching the public records of a potential construc-
tion lien, “and, therefore, [it] alleviates the problem of hidden
liens.” Id. In addition, “[b]ecause the visible commencement
of construction is often an ambiguous event,” the recordation
of a notice of commencement makes later-filing parties aware
that construction liens may be claimed against the property as
of a date certain and will take priority. bruce, supra at 17-18.
Thus, it has been said the “prime purpose” of the notice of
commencement as part of updated construction lien laws “was
to eliminate as a controvertible question of fact the time of
visible commencement of operations by providing a method to
432 	276 NebRASkA RepORTS

determine this time with certainty.” Robert M. ervin, Revised
Mechanics’ Lien Law; The Whys and Wherefores, 37 Fla. bar J.
1094, 1097 (1963).
In their arguments on appeal, borrenpohl and bartels refer this
court to a comment following the USLTA § 5-301, 14 U.L.A.
440 (2005), codified by Nebraska at § 52-145. This provision
generally governs the recording of a notice of commencement,
including such details as who can file a notice of commence-
ment and the contents thereof. The comment states:
In cases in which a construction lender . . . is taking an
interest in real estate on which the owner is about to com-
mence construction, the third party, if he is well advised,
will insist that the transaction be structured so that the third
party’s interest is recorded and then a notice of commence-
ment recorded.
USLTA § 5-301, comment, 14 U.L.A. at 441-42. The broad sug-
gestion in this comment does not resolve the issue in this case
of legally simultaneous filings and does not affirmatively estab-
lish that the date and time stamp controls the priority of liens.
We do not find support within the text of the NCLA provisions
for borrenpohl and bartels’ argument that their construction
liens are entitled to priority over the bank’s deed of trust on the
basis that the notice of commencement bears a date and time
stamp that is 5 minutes earlier than the time on the bank’s deed
of trust.
Having reviewed the NCLA without finding definitive author-
ity for resolution of the issue in this appeal, we next turn to the
relevant Nebraska real estate statutes and our case law there-
under. As explained more fully below, we conclude that under
Nebraska jurisprudence, the fact that the deed of trust and the
notice of commencement arrived in the same envelope and
were delivered to the register of deeds at the same time without
instructions effectively resulted in the simultaneous recording
of those documents, and the resolution of priority between
simultaneously recorded documents is determined by reference
to the intention of the parties. See, generally, Judkins-Davies
v. Skochdopole, 122 Neb. 374, 240 N.W. 510 (1932). For com-
pleteness, we note that the parties have not directed us to author-
ity that is contrary to the foregoing conclusion.
bORReNpOHL v. DabeeRS pROpeRTIeS 	433
Cite as 276 Neb. 426

As a preliminary matter in our consideration of the statutes,
we note that Neb. Rev. Stat. § 76-203 (Reissue 2003) defines
the term “deed” as “embrac[ing] every instrument in writing
by which any real estate or interest therein is created, aliened,
mortgaged or assigned, or by which the title to any real estate
may be affected in law or equity, except last wills and leases for
one year or for less time.” Under § 76-203, we consider both the
deed of trust and the notice of commencement to be instruments
covered by chapter 76 of the Nebraska Revised Statutes.
Neb. Rev. Stat. § 76-237 (Reissue 2003) provides that “[e]very
deed, entitled by law to be recorded, shall be recorded in the
order and as of the time when the same shall be delivered to
the register of deeds for that purpose, and shall be considered
recorded from the time of such delivery.” Similarly, Neb. Rev.
Stat. § 76-238(1) (Cum. Supp. 2006) provides that “[a]ll deeds,
mortgages, and other instruments of writing which are required
to be or which under the laws of this state may be recorded, shall
take effect and be in force from and after the time of deliver-
ing such instruments to the register of deeds for recording . .
. .” Thus, under chapter 76, the deed of trust and the notice of
commencement that were “delivered” together were “recorded”
together at the time of such delivery.
Deeds of trust are “recorded,” Neb. Rev. Stat. § 76-1017
(Reissue 2003), as are notices of commencement, § 52-145(1)(c).
See, also, § 52-127(13) (providing that under NCLA, “record”
means “to present [a document] to the register of deeds for the
county where the land is situated”). Taking this series of statu-
tory sections just referred to together, and giving the statutory
language its plain meaning, see In re Estate of Cooper, 275 Neb.
297, 746 N.W.2d 653 (2008), both deeds of trust and notices of
commencement are “recorded” at the time of delivery, and in
the absence of instruction, under the statutes, it logically fol-
lows that if delivered together, they are considered as having
been recorded simultaneously. The statutes as a whole negate the
argument by borrenpohl and bartels that under the statutes, the
time stamp controls recordation and hence priority.
The bank argues that under our case law applying the relevant
statutes, when documents are filed simultaneously, the relative
priority of the competing interests is resolved by considering
434 	276 NebRASkA RepORTS

the intent of the parties. In support of this argument, the bank
relies on this court’s opinion in Judkins-Davies v. Skochdopole,
122 Neb. 374, 240 N.W. 510 (1932), in which we considered
Comp. Stat. § 76-217 (1929), now codified as § 76-237, which
provides that real property instruments are recorded from the
time of delivery. In Judkins-Davies, a bank cashier sent two
mortgages, one securing a $5,000 note and the second securing
a $2,400 note, in the same envelope to the register of deeds to be
recorded. The mortgages related to the same piece of property,
but each was in favor of a different lender. The cashier did not
include filing instructions in the envelope. The register of deeds
recorded the $2,400 mortgage first, and the $5,000 mortgage
immediately thereafter. A dispute arose concerning the priority
of the respective liens.
[5] In Judkins-Davies, supra, the defendant claimed that it
was the intention of the parties that the $5,000 mortgage would
have priority. The trial court agreed with the defendant, and this
court affirmed, stating “[t]he mere fact that the $2,400 mortgage
was indexed and recorded just ahead of the $5,000 mort-
gage does not, of itself, give it priority.” Id. at 376, 240 N.W.
at 511. We noted that under the state statutes generally, mort-
gages were considered recorded from the time of delivery to
the register of deeds’ office. We further stated, however, that the
appeal appeared to involve “a disputed question of fact, to be
determined from the evidence, [as to] which of the two mort-
gages is prior,” id. at 377, 240 N.W. at 512, and we affirmed
the trial court’s decision finding the $5,000 mortgage superior,
based upon evidence of the intention of the parties. See, also,
Reitz v. Petersen, 131 Neb. 706, 711, 269 N.W. 811, 814 (1936)
(stating that “the mere fact that a mortgage was first received for
record by the register of deeds . . . does not prevent a mortgage
received for record later being awarded priority when shown by
competent evidence to have been intended by all parties in inter-
est to be prior”). extending the reasoning of Judkins-Davies, we
agree with the bank’s argument that based on our statutes and
case law, in this case, where documents were delivered simulta-
neously without instructions, the relative priority of the interests
represented by the documents is resolved by considering the
intentions of the parties.
bORReNpOHL v. DabeeRS pROpeRTIeS 	435
Cite as 276 Neb. 426

In the instant case, in support of its motion for partial sum-
mary judgment, the bank presented the affidavits of representa-
tives from the bank and Dabeers, each of whom stated that it
was the intention of both the bank and Dabeers that the bank’s
lien would be second only to that of Carson’s deed of trust, and
therefore the bank’s deed of trust was superior to the notice
of commencement and construction liens subsequently filed
against the property. The record reflects that neither borrenpohl
nor bartels presented evidence regarding the parties’ intentions
concerning lien priorities, and there is no evidence that contra-
dicts the evidence of the bank. The fact that the actual recorda-
tion reflecting the intentions of the bank and Dabeers “was not
efficiently done” does not defeat their agreed-upon priority. See
Reitz, supra, 131 Neb. at 713, 269 N.W. at 814.
[6,7] A party makes a prima facie case that it is entitled to
summary judgment by offering sufficient evidence that, assum-
ing it went uncontested at trial, would entitle the party to a
favorable verdict. Amanda C. v. Case, 275 Neb. 757, 749 N.W.2d
429 (2008). If the moving party makes such a case, the burden
then shifts to the nonmoving party to avoid summary judgment
by producing admissible contradictory evidence which raises
a genuine issue of material fact. Id. The bank, as the moving
party, offered evidence in support of its argument that the parties
intended that the bank’s lien would be superior to the notice of
commencement and construction liens subsequently filed against
the property. The burden then shifted to borrenpohl and bartels
to produce contradictory evidence, and no such evidence was
produced. The evidence submitted supports the ruling of the
district court that the parties intended that the bank’s deed of
trust have priority over the notice of commencement and, as a
consequence, priority over the construction liens at issue here.
Accordingly, the district court did not err in entering partial
summary judgment in favor of the bank, and the appeal by
borrenpohl and cross-appeal by bartels are without merit.
CONCLUSION
In this appeal following proceedings on a motion for partial
summary judgment, the district court did not err in entering par-
tial summary judgment in favor of the bank and in determining
436 	276 NebRASkA RepORTS

that the bank’s deed of trust had priority over the notice of
commencement and therefore over the construction liens of
borrenpohl and bartels. Finding no merit to the appeal and
cross-appeal, we affirm the decision of the district court.
affiRmed .
bORReNpOHL v. DabeeRS pROpeRTIeS 	437
Cite as 276 Neb. 426