Wilkinson Development v. Ford & Ford Investments
311 Neb. 476
| Neb. | 2022Background
- Wilkinson and Ford contracted Aug 30, 2019 for sale of commercial real estate; closing moved from Nov 20 to Dec 4 after Wilkinson advanced earnest money.
- PSK negotiated with Ford; PSK signed a purchase agreement Nov 22, 2019 (and a second agreement Nov 26).
- Wilkinson delivered the full purchase price to the closing agent on Nov 21 and filed a complaint for specific performance Nov 25 and a lis pendens Nov 26, 2019.
- Ford served with summons Dec 6; PSK and Ford closed Dec 16 and the deed was recorded Dec 19.
- District court granted Wilkinson specific performance March 4, 2021. PSK moved to vacate the decree and sought joinder Mar 26; the court denied the motion. PSK appealed.
Issues
| Issue | Plaintiff's Argument (Wilkinson) | Defendant's Argument (PSK) | Held |
|---|---|---|---|
| Whether PSK was a necessary/indispensable party requiring joinder under Neb. Rev. Stat. §25-323 | Lis pendens makes subsequent purchasers bound as if parties; joinder not required | Action affects PSK's rights and cannot proceed without joinder | Court: Lis pendens (§25-531) governs here; no mandatory joinder required; denial of vacatur affirmed |
| Whether filing a lis pendens eliminated the obligation to join subsequent purchasers | Lis pendens provides constructive notice and binds subsequent purchasers, obviating need to join | Lis pendens insufficient; plaintiff must join PSK once aware of its interest | Court: Lis pendens was effective constructive notice; plaintiff has no continuing duty to join after filing; specific lis pendens statute controls over general joinder statute |
| Whether PSK acquired equitable title before lis pendens (equitable conversion) and thus is not bound | Wilkinson: PSK had knowledge of Wilkinson’s prior claim and did not pay full price pre-lis pendens, so lis pendens applies | PSK: Executory contract (Nov 22) vested equitable title before lis pendens filing, so PSK not bound | Court: Rejected PSK’s equitable-conversion defense—PSK had knowledge of Wilkinson’s claim and had not paid full price pre-lis pendens; lis pendens binds PSK |
| Whether Wilkinson had a continuing duty to join PSK after learning of PSK’s interest | No continuing duty once lis pendens filed; knowledge at time of filing is what matters | Once Wilkinson learned of PSK, it should have joined PSK | Court: Knowledge at filing controls; no ongoing obligation to join; PSK could have intervened but did not |
Key Cases Cited
- Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (2014) (discusses lis pendens statutory framework and constructive notice)
- Brown v. Jacobsen Land & Cattle Co., 297 Neb. 541, 900 N.W.2d 765 (2017) (addresses lis pendens purpose and effect)
- Hadley v. Corey, 137 Neb. 204, 288 N.W. 826 (1939) (classic statement of lis pendens doctrine: pendente lite nihil innovetur)
- DeBoer v. Oakbrook Home Assn., 218 Neb. 813, 359 N.W.2d 768 (1984) (describes equitable conversion rule)
- Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894 N.W.2d 221 (2017) (discusses necessary and indispensable parties and joinder principles)
- Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018) (statutory interpretation principle: specific statute controls over general statute)