Kotrous v. Zerbe

KOTROUS v. ZERBE 	1033
Cite as 287 Neb. 1033
Jimmie Kotrous, appellant, v.
ryan Z erbe et al., appellees.
846 N.W.2d 122
Filed April 24, 2014. 	No. S-13-589.
1. Motions to Dismiss: Jurisdiction: Appeal and Error. Aside from factual find-
ings, 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 statu-
tory 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 pro-
ceedings 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 theo-
ries 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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:37 AM CST

1034 	287 NEBRASKA REPORTS
H eavican, 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 contri-
bution 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 equip-
ment 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 sub-
ject 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.

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 common-
law courts.5
[6] The “common-law” jurisdiction conferred to the dis-
trict 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).

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 com-
mon law, a land owner could not be compelled to build a parti-
tion 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 com-
mence 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” can-
not 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).

KOTROUS v. ZERBE 	1037
Cite as 287 Neb. 1033
[10,11] To determine whether Kotrous pled breach of con-
tract, 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 theo-
ries 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, quasi-
contract 	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 aris-
ing 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).