Motions to Dismiss: Appeal and Error. An
appellate court reviews a district court's order granting
a motion to dismiss de novo, accepting the allegations in the
complaint as true and drawing all reasonable inferences in
favor of the nonmoving party.
Actions: Pleadings: Notice. Civil actions
are controlled by a liberal pleading regime; a party is only
required to set forth a short and plain statement of the
claim showing that the pleader is entitled to relief and is
not required to plead legal theories or cite appropriate
statutes so long as the pleading gives fair notice of the
Motions to Dismiss: Pleadings. To prevail
against a motion to dismiss for failure to state a claim, a
plaintiff must allege sufficient facts, accepted as true, to
state a claim to relief that is plausible on its face.
Rules of the Supreme Court: Pleadings.
Dismissal under Neb. Ct. R. Pldg. § 6-1112(b)(6) should
be granted only in the unusual case in which a plaintiff
includes allegations that show on the face of the complaint
that there is some insuperable bar to relief.
Statutes: Legislature: Intent. In construing
statutes, legislative intention is to be determined from a
general consideration of a whole act with reference to the
subject matter to which it applies and the particular topic
under which the language in question is found, and intent so
deduced from the whole will prevail over that of a particular
part considered separately.
Actions: Landlord and Tenant: Leases: Words and
Phrases. A tenant who accepts possession and lives
on the property for several months thereafter does not have a
claim under Neb. Rev. Stat. § 76-1418 (Reissue 2018),
because the duties described in § 76-1418 pertain to the
"commencement" of the lease term.
Neb. 743] 7. Election of Remedies:
Estoppel: Claim Preclusion. The doctrine of election
of remedies is a somewhat vague notion lying somewhere
between the areas occupied by the doctrines of equitable
estoppel and claim preclusion.
Election of Remedies: Proof. When the
election is between remedies with different elements of proof
under the same complaint, a plaintiff can attempt to prove
both theories and need only elect one for the purpose of
recovery in the event that the trier of fact finds both
theories were proved.
Election of Remedies: Pleadings. So long as
the plaintiff does not ultimately obtain two recoveries for
the same harm, the doctrine of election of remedies does not
generally prevent the plaintiff from pleading remedies that
are mutually exclusive.
Election of Remedies. Election of remedies
applies only when there are inconsistent remedies for redress
of the same single injury.
Landlord and Tenant: Contracts: Notice: Injunction:
Damages: Time. So long as a tenant has given notice
when required by Neb. Rev. Stat. § 76-1419 (Reissue
2018), a tenant can seek damages or injunctive relief under
Neb. Rev. Stat. § 76-1425(2) (Reissue 2018) without
sending notice under § 76-1425(1) specifying that the
rental agreement will terminate upon a date not less than 30
days after receipt of the notice of the breach, if not
remedied within 14 days.
Landlord and Tenant: Election of Remedies:
Injunction: Damages: Words and Phrases. The
reference in the conjunctive to "damages" and
"injunctive relief in Neb. Rev. Stat. § 76-1425(2)
(Reissue 2018) serves to vest a tenant with two distinct
options for relief and does not require that both be pursued
in order to pursue either.
Actions: Landlord and Tenant: Contracts.
Neither Neb. Rev. Stat. §§ 76-1430 and 76-1439
(Reissue 2018) nor any other provision of the Uniform
Residential Landlord and Tenant Act, Neb. Rev. Stat.
§§ 76-1402 to 76-1449 (Reissue 2018), indicates
that a separate action for termination of a rental agreement
is a prerequisite to termination under the act.
from the District Court for Douglas County: J. Michael
Katelyn Cherney, of Milton R. Abrahams Legal Clinic, for
S. Dickhute for appellee.
Neb. 744] Heavican, C.J., Miller-Lerman, Cassel, Stacy,
Funke, Papik, and Freudenberg, JJ.
brought a complaint against their landlord under the Uniform
Residential Landlord and Tenant Act (URLTA), Neb. Rev. Stat.
§§ 76-1402 to 76-1449 (Reissue 2018). They alleged
that numerous code violations materially affecting their
health and safety were present at the time they commenced
physical possession of the property, but were not discovered
until later. The tenants asked the City of Omaha Planning
Department's housing division (Housing Division) to
conduct an inspection of the property, which eventually led
to the Housing Division's declaring the property unsafe
and unfit for human occupancy and ordering the tenants to
immediately vacate the premises. The landlord failed to
perform repairs to make the property habitable even after
months of repeated notices and demands by the Housing
Division and the tenants. During much of this time, the
tenants continued to pay utilities. The tenants eventually
gave their landlord 5 days' notice of their intention to
terminate the rental agreement. The landlord refused to
return the tenants' security deposit or reimburse them
for utilities paid. The landlord also refused to return rent
paid for the 2 months that the tenants were mostly unable to
occupy the premises, which the landlord allegedly had
demanded in retaliation for the tenants' reporting to the
Housing Division. The district court dismissed the complaint
under Neb. Ct. R. Pldg. § 6-1112(b)(6), and the tenants
appeal. The question presented is whether the alleged facts
state a claim for relief under the URLTA.
Claudia Vasquez and Cesar Moreno Tinoco (tenants) filed a
complaint against CHI Properties, LLC (CHI). After their
first [302 Neb. 745] complaint was dismissed, they were
granted leave to amend. The amended complaint alleged the
about May 10, 2016, tenants entered into a written agreement
to rent property owned by CHI for $850 per month and to pay
$850 as a security deposit. During the first 8 weeks of the
lease term, after tenants began living at the property, they
noticed a water leak in the bathroom that was causing mold
formation. CHI sent a plumber to repair the leak, but the
repair was not effective.
failed to adequately respond to tenants' concerns
regarding surface mold in the home. In July 2016,
tenants' minor child was treated for mold exposure and
the Douglas County Health Department was contacted.
letter dated October 4, 2016, the health department issued
written recommendations to CHI for resolving an active water
leak and visible mold. As of November 18, CHI made no efforts
to follow the recommendations or otherwise resolve the water
leak and mold.
contacted the Housing Division, requesting a housing
inspection for possible housing code violations. The Housing
Division inspected the property on October 7, 2016, and
issued a '"Notice of Property Violation'"
to CHI by mail on October 14.
CHI received the violation notice on or around October 17,
2016, CHI demanded, in retaliation for tenants' complaint
to the Housing Division, that tenants vacate the property
within 2 weeks.
that same time, CHI accepted a payment by tenants in the
amount of $850 for November's rent. Tenants had made all
prior rent payments since the inception of the rental
around November 14, 2016, the Housing Division found that CHI
had not cured the previously cited violations, and additional
violations were discovered. There were 31 code violations in
total, 13 of which were considered to be of a
"'high' severity level."
Neb. 746] On or around November 17, 2016, a major electrical
hazard at the property was detected by the Housing Division
and the Omaha Public Power District. This major electrical
hazard put tenants at risk of serious harm. This hazard
existed at the commencement of the rental agreement, although
tenants were unaware of it at that time.
Housing Division declared the property unsafe and unfit for
human occupancy and ordered tenants to immediately vacate the
property. A placard '"Danger-Closed, "'
along with a description of the penalties for occupancy, was
posted on the property by the Housing Division on November
same day, CHI spoke with tenants and assured them that
repairs would be completed within a few days. Tenants stayed
with family members. There is no allegation that they paid
rent to their family members.
around December 16, 2016, tenants sent written notice to CHI
demanding performance of the rental agreement. The details of
this notice are not otherwise described in the complaint.
Tenants remained barred from the property by the Housing
around December 19, 2016, the Housing Division again
inspected the property. It found that CHI was working on the
electrical issue, but it was not completed, and that CHI had
not remedied any of the other 30 code violations.
an inspection on December 28, 2016, the Housing Division
found that the '"water is off and the water heater
is being re-installed.'" The Housing Division
notified CHI and tenants that no one could occupy the
premises until the water heater was properly installed.
point, despite the Housing Division's no-occupancy order,
CHI threatened that if tenants did not resume occupancy, it
would treat them as if they had abandoned the property and
dispose of their personal belongings.
January 9, 2017, tenants mailed a second written notice to
CHI, demanding that it complete all repairs and inspections
necessary so that they could resume occupancy.
Neb. 747] The Housing Division removed the placard from the
property on February 3, 2017, and tenants moved back in on
February 5. However, tenants immediately discovered that the
water was off and major plumbing repairs were in progress.
Tenants had not paid rent for December 2016 or January 2017,
but they had paid for television and internet services until
approximately January 10 and had paid all utility bills until
February 6, 2017, CHI demanded and tenants paid $850 for the
February rent. Through a notice posted on February 2, CHI had
threatened to bring a restitution action if tenants failed to
pay February's rent.
following day, on February 7, 2017, the Housing Division
issued a new order to vacate and the property was
replacarded. The Housing Division ordered CHI to hire a
licensed plumber to correct noncompliant plumbing work and
complete necessary plumbing inspections within 30 days. CHI
failed to comply. CHI did not refund tenants their February
"terminated their lease effective March 12, 2017, and
demanded return of all prepaid rent and security after
tendering five days' written notice under Neb. Rev. Stat.
§ 76-1426(1) for [CHI's] failure to deliver
possession of fit and habitable premises." Tenants had
been excluded from the property for nearly 4 months due to
CHI's refusal to complete repairs and inspections
necessary to have the property released for occupancy by the
failed to return tenants' "prepaid rent" and
security deposit following written demand. The property
remained under an active vacate order as of May 1, 2017, the
date tenants filed their amended complaint.
amended complaint alleged causes of action under the URLTA.
They cited to §§ 76-1426, 76-1419, 76-1430, and
76-1439, which corresponded to actions for (1) failure to
deliver possession, (2) failure to maintain fit premises, (3)
unlawful ouster, and (4) retaliation. Tenants sought return
of their security deposit, which is provided for by §
76-1416(2), [302 Neb. 748] as well as other provisions of the
URLTA, damages, and attorney fees.
moved to dismiss the complaint under § 6-1112(b)(6) for
failure to state a claim.
asserted, first, that there was no allegation that possession
had not been delivered. Thus, according to CHI, there was no
breach of the duty set forth in § 76-1418 and the
remedies of § 76-1426 do not apply, including the 5-day
notice to terminate.
CHI asserted that because there was no allegation that
tenants had delivered a "14/30 day Notice to Cure,"
tenants could not make any claim for damages under §
76-1425. Nor, according to CHI, did tenants assert any facts
showing damages, "because they procured substitute
services and deducted them from the rent, as provided in Neb.
Rev. Stat. §76-1427 (1)" or "secured
substitute housing and abated the payment of rent, the remedy
allowed to them under Neb. Rev. Stat. §76-1427(2)."
CHI asserted that tenants' allegations that they resorted
to the remedy of abatement precluded them, pursuant to §
76-1427(2), from pursuing damages or attorney fees.
asserted that tenants failed to state claims under §
76-1430 or § 76-1439 for retaliation or ouster, because
there was no allegation that tenants had either recovered
possession or lawfully terminated the rental agreement.
hearing on the motion to dismiss, CHI submitted, without
objection, a printout from Nebraska's online trial court
case management system, known as JUSTICE, for the court to
take judicial notice of, which demonstrated that tenants did
not file a separate action to terminate the lease.
district court concluded that tenants failed to state a claim
for breach of the duty to deliver, because §§
76-1418 and 76-1426 did not apply when tenants accepted [302
Neb. 749] physical possession of the property at the
commencement of the rental period.
the alleged failure to maintain fit and habitable premises,
the court stated that tenants' failure to allege that
they had delivered to CHI a "14/30 day Notice to Cure or
terminate the lease" prevented their claim. The court
also cited to the exhibit demonstrating that tenants did not
bring a separate action to terminate the lease. The court
reasoned, further, that damages under § 76-1425 were not
available for any breach of a duty to maintain fit premises,
because damages are available under the statute only
"when an action for injunctive relief has also been
brought." Finally, the court reasoned that because
tenants resorted to the remedy of abatement pursuant to
§ 76-1427(2), they were precluded from recovering
damages and attorney fees under § 76-1425(2).
court concluded that tenants failed to state claims for
ouster or retaliation under §§ 76-1430 and
76-1439(2), because there was no allegation that tenants
either recovered possession or lawfully terminated the rental
court granted CHI's motion to dismiss. Tenants elected to
stand on the amended complaint and sought entry of a final
judgment. The court dismissed the complaint "with /