NP Dodge Mgmt. Co. v. Holcomb , 314 Neb. 748 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/21/2023 09:07 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
NP DODGE MGMT. CO. V. HOLCOMB
Cite as 314 Neb. 748NP Dodge Management Company, appellee,
v. Teresa Holcomb, appellant.
___ N.W.2d ___
Filed July 21, 2023. No. S-22-272.
1. Moot Question: Jurisdiction: Appeal and Error. Because mootness is
a justiciability doctrine that operates to prevent courts from exercising
jurisdiction, an appellate court reviews mootness determinations under
the same standard of review as other jurisdictional questions.
2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional
question does not involve a factual dispute, its determination is a matter
of law, which requires an appellate court to reach a conclusion indepen-
dent of the decisions made by lower courts.
3. Moot Question: Words and Phrases. A case is moot if the facts under-
lying the dispute have changed, such that the issues presented are no
longer alive.
4. Moot Question. The central question in a mootness analysis is whether
changes in circumstances that prevailed at the beginning of litigation
have forestalled any occasion for meaningful relief.
5. Moot Question: Appeal and Error. The public interest exception to the
mootness doctrine requires an appellate court to consider (1) the public
or private nature of the question presented, (2) the desirability of an
authoritative adjudication for guidance of public officials, and (3) the
likelihood of recurrence of the same or a similar problem.
Appeal from the District Court for Douglas County, J.
Michael Coffey, Judge, on appeal thereto from the County
Court for Douglas County, Darryl R. Lowe, Judge. Appeal
dismissed.
Caitlin Cedfeldt, of Legal Aid of Nebraska, and Kasey D.
Ogle, of Nebraska Appleseed Center for Law in the Public
Interest, for appellant.
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314 Nebraska Reports
NP DODGE MGMT. CO. V. HOLCOMB
Cite as 314 Neb. 748Andrew J. McElmeel, of Goosmann Law Firm, P.L.C., and
Gene M. Eckel and Tara E. Holterhaus, of Spencer Fane,
L.L.P., for appellee.
Lindsay R. Belmont, of Koenig | Dunne, P.C., L.L.O., for
amicus curiae National Housing Law Project.
Russell E. Lovell II, for amicus curiae Iowa-Nebraska
NAACP, and Rebecca Scout Richters for amicus curiae ACLU
Foundation of Nebraska.
Kevin Ruser, Ryan P. Sullivan, Rachel Tomlinson Dick, and
Alan Dugger for amicus curiae University of Nebraska College
of Law Civil Clinical Law Program.
Douglas J. Peterson, Attorney General, James A. Campbell,
and Christian Edmonds for amicus curiae Attorney General.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
When Teresa Holcomb allegedly breached the terms of her
residential lease agreement, her landlord, NP Dodge Manage­
ment Company (NP Dodge), terminated the lease. Holcomb
did not leave the property, and NP Dodge initiated eviction
proceedings under Nebraska’s Uniform Residential Landlord
and Tenant Act (the NURLTA). See Neb. Rev. Stat. § 76-1401et seq. (Reissue 2018). Holcomb requested a jury trial. The
county court denied her request, held a bench trial, found in
favor of NP Dodge, and ordered restitution of the premises to
NP Dodge. Holcomb appealed to the district court, but before
that appeal was decided, the county court issued a writ of resti-
tution, whereby Holcomb was removed from the property. The
district court later affirmed in all respects.
Holcomb’s principal argument on appeal is that § 76-1446,
which mandates a bench trial for a possession action under
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NP DODGE MGMT. CO. V. HOLCOMB
Cite as 314 Neb. 748the NURLTA, violates article I, § 6, of the Nebraska Consti­
tution, which provides that the “right of trial by jury shall
remain inviolate.” We find the case is moot and therefore dis-
miss the appeal.
BACKGROUND
Lease Agreement and Termination.
Holcomb and NP Dodge signed a residential lease agree-
ment in August 2020. The lease was for 1 year and was set
to expire on July 31, 2021. An addendum to the agreement
granted NP Dodge the right to terminate the lease if Holcomb
engaged in illegal activity, acts of violence, or threats of vio-
lence. On May 6, Holcomb allegedly threatened two residents
in the common area of the leased property, and police officers
responded to the scene. The next day, pursuant to the adden-
dum, NP Dodge served Holcomb a written notice of termina-
tion that required her to vacate the premises within 5 days.
Holcomb did not comply.
Bench Trial.
On May 19, 2021, NP Dodge filed a complaint in county
court seeking restitution of the premises pursuant to the
NURLTA. Holcomb denied the allegations in the complaint
and requested a jury trial. On June 9, the county court denied
Holcomb’s request and conducted a bench trial. After the bench
trial, the county court found that Holcomb breached the adden-
dum to the lease agreement and entered judgment in favor of
NP Dodge. The county court further ordered NP Dodge not to
execute a writ of restitution, the means by which it could have
Holcomb removed from the premises, until July 9.
Posttrial Procedural History.
On June 22, 2021, Holcomb filed a notice of appeal to
the district court. She also filed a motion requesting that the
county court stay enforcement of the writ of restitution until
the county court set an appeal bond and Holcomb had an
opportunity to put up the bond. On July 27, NP Dodge filed a
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314 Nebraska Reports
NP DODGE MGMT. CO. V. HOLCOMB
Cite as 314 Neb. 748praecipe for writ of restitution, which the county court granted
the next day. A Douglas County constable executed the writ
and removed Holcomb from the apartment on July 29.
On August 3, 2021, the county court entered an order setting
a supersedeas bond in the amount of $225, and additionally
ordering Holcomb to make monthly payments to NP Dodge of
$225 while the appeal was pending. The county court’s order
stated that any writ of restitution was to “be recalled” until
after the deadline by which the supersedeas bond was to be
paid. The county court judge apparently was unaware that the
writ of restitution had already been executed.
In her appeal to the district court, Holcomb preserved three
arguments relevant to this appeal. First, Holcomb argued that
the county court violated article I, § 6, of the Nebraska
Constitution by denying her request for a jury trial. Second,
Holcomb asserted that the county court violated § 76-1447 by
issuing the writ of restitution prior to setting an appeal bond,
the payment of which would have stayed execution of the writ
while the appeal was pending. Third, Holcomb argued that the
county court violated her constitutional right to due process by
issuing the writ of restitution without first serving her notice
that the writ would issue.
The district court rejected each of Holcomb’s arguments.
Holcomb appealed again and petitioned to bypass the Nebraska
Court of Appeals. We granted the petition to bypass.
After oral argument in this matter, we directed the parties
to submit supplemental briefs addressing whether the case had
become moot and, if so, whether we should address any of the
issues raised under exceptions to the general rule that moot
cases are subject to dismissal.
ASSIGNMENTS OF ERROR
Holcomb assigns that the district court erred (1) in affirm-
ing the county court’s denial of her request for a jury trial
contrary to article I, § 6, of the Nebraska Constitution; (2) in
affirming the county court’s issuance of the writ of restitution
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NP DODGE MGMT. CO. V. HOLCOMB
Cite as 314 Neb. 748prior to setting an appeal bond contrary to § 76-1447; and (3)
in affirming the county court’s issuance of the writ of restitu-
tion without first serving notice to Holcomb, in violation of her
constitutional right to due process.
STANDARD OF REVIEW
[1,2] Because mootness is a justiciability doctrine that oper-
ates to prevent courts from exercising jurisdiction, an appel-
late court reviews mootness determinations under the same
standard of review as other jurisdictional questions. Weatherly
v. Cochran, 301 Neb. 426, 918 N.W.2d 868 (2018). When a
jurisdictional question does not involve a factual dispute, its
determination is a matter of law, which requires an appellate
court to reach a conclusion independent of the decisions made
by lower courts. Id.ANALYSIS
Mootness.
[3,4] We first confront whether this case is moot given
that the writ of restitution was executed and Holcomb was
removed from the apartment. A case is moot if the facts
underlying the dispute have changed, such that the “issues
presented are no longer alive.” See Nebuda v. Dodge Cty.
Sch. Dist. 0062, 290 Neb. 740, 747, 861 N.W.2d 742, 749
(2015). The central question in a mootness analysis is whether
changes in circumstances that prevailed at the beginning of
litigation have forestalled any occasion for meaningful relief.
Id. Or, as another state supreme court has described moot-
ness, “[a] moot case exists where a judgment rendered by
the court will have no practical legal effect upon an existing
controversy because an intervening event renders any grant
of effectual relief impossible for the reviewing court.” Sloan
v. Friends of Hunley, Inc., 369 S.C. 20, 26, 630 S.E.2d 474,
477 (2006).
Holcomb argues in this appeal that she was wrong-
fully evicted because a court, rather than a jury, found
that she breached the lease agreement, in violation of her
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NP DODGE MGMT. CO. V. HOLCOMB
Cite as 314 Neb. 748constitutional right to a jury trial. She also argues that she
should have had the opportunity to remain in her apartment
pending an appeal, but that the county court erred by issuing
a writ of restitution without giving her the opportunity to stay
issuance of the writ.
There is no meaningful relief we could provide to remedy
any errors pertaining to Holcomb’s attempt to stay in her
apartment pending appeal. Holcomb was removed from her
apartment prior to the completion of the appellate process.
Even if we were to find error in that removal, there is nothing
we can do now that would allow her to stay in her apartment
pending appeal.
As for Holcomb’s claim that she should have received a
jury trial, she argues that, if we were to find in her favor
on that issue, we could grant meaningful relief by vacating
the prior judgment, ordering that the cause be remanded for
a jury trial, and awarding her possession of the same or a
similar unit during the pendency of that jury trial. We dis-
agree such relief would be meaningful. If we were to vacate
the judgment and remand the cause for a jury trial, we know
of no reason why NP Dodge would continue to pursue this
action. An action brought pursuant to the NURLTA deter-
mines only whether the plaintiff is entitled to possession.
See § 76-1446. But, now, about 2 years after Holcomb’s
departure from the apartment, NP Dodge would have no need
for a determination that it, rather than Holcomb, is currently
entitled to possession.
And even if this cause were remanded for a jury trial, NP
Dodge continued to seek a judgment, and Holcomb prevailed,
we do not believe the county court could grant relief that
would have practical legal effect. Although this point is not
made perfectly clear in Holcomb’s briefing, we presume that
she takes the position that if she were to prevail in a subse-
quent jury trial, the county court should award her posses-
sion of the apartment or a similar unit going forward. But,
again, the issue in this action is who is entitled to immediate
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NP DODGE MGMT. CO. V. HOLCOMB
Cite as 314 Neb. 748possession. Back in the summer of 2021, Holcomb could con-
tend that, if NP Dodge’s claim that it was entitled to demand
that she vacate her apartment lacked merit, she was entitled to
possession of an apartment. But Holcomb’s lease expired in
July 2021, and she offers no reason why she would be enti-
tled to possession of the apartment now about 2 years later.
Because Holcomb has no basis to claim a current right of pos-
session, this issue is moot. See Marshall v. Housing Auth. of
City of San Antonio, 198 S.W.3d 782 (Tex. 2006) (concluding
issue of possession in appeal from forcible entry and detainer
judgment was moot because tenant’s lease had expired and
she presented no basis for claiming right to possession after
that date). See, also, Banks v. Housing Auth. of City of
Omaha, 281 Neb. 67, 795 N.W.2d 632 (2011) (explaining that
if landlord had continued to pursue forcible entry and detainer
action after tenant moved out, action would have been found
to be moot).
[5] That this case is moot does not end the matter, however.
While a moot case is normally subject to summary dismissal,
Nebraska recognizes a public interest exception to the moot-
ness doctrine. See Rath v. City of Sutton, 267 Neb. 265, 673
N.W.2d 869 (2004). The exception requires us to consider
(1) the public or private nature of the question presented,
(2) the desirability of an authoritative adjudication for guid-
ance of public officials, and (3) the likelihood of recurrence
of the same or a similar problem. Id. We separately analyze
each assignment of error to determine whether to exercise our
discretion to review the assignment under the public interest
exception. See id.Public Interest Exception: Constitutional
Jury Trial Right.
Both NP Dodge and Holcomb contend that we should
address Holcomb’s argument that she was entitled to a jury trial
under the public interest exception to the mootness doctrine.
The parties’ agreement, however, cannot constrain whether
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NP DODGE MGMT. CO. V. HOLCOMB
Cite as 314 Neb. 748this court will exercise its discretion to address an argument
under the public interest exception. And, for reasons we will
explain, we decline to exercise our discretion to address the
issue in this case.
We do not dispute the public questions that are implicated
by Holcomb’s argument. Neither can we deny that an authori-
tative adjudication would benefit trial judges when presented
with arguments like Holcomb’s. And while it is certainly
possible that this issue will recur in future cases, future recur-
rence is not the only thing we consider in evaluating this third
factor under the public interest exception. Instead, we have
said that even if a problem is likely to recur, it is generally
inappropriate for an appellate court to review a moot case
that does not evade review as a result of a transitory set-
ting. See, e.g., Beachy v. Becerra, 259 Neb. 299, 609 N.W.2d
648 (2000).
It is not clear to us that this issue inherently evades appel-
late review. Although Holcomb’s case is moot, there are means
by which a tenant can stay enforcement of a writ of restitution
pending appeal. See § 76-1447. Indeed, as discussed above,
Holcomb attempted to do so in this case. Furthermore, this is
the only case we are aware of in which a tenant has attempted
to challenge the bench trial provision of the NURLTA and the
case was moot by the time it reached this court. We are leery
of concluding that an issue inherently evades review based on
a sample size of one.
Our decision on whether to address this issue under the
public interest exception in this case is also informed by
another proposition of law: that ordinarily this court will not
pass upon the constitutionality of legislation absent a need to
do so in order to properly dispose of an action. See, e.g., State
ex rel. Wieland v. Beermann, 246 Neb. 808, 523 N.W.2d 518(1994). Because this case is subject to dismissal even if we
were to reach Holcomb’s arguments under the public inter-
est exception, see Rath, supra, we need not pass upon the
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NP DODGE MGMT. CO. V. HOLCOMB
Cite as 314 Neb. 748constitutionality of the NURLTA’s bench trial requirement to
decide the case.
We acknowledge that this court has in at least one case
addressed the constitutionality of statutes under the public
interest exception to the mootness doctrine. See In re Interest
of Anaya, 276 Neb. 825, 758 N.W.2d 10 (2008). And we need
not foreclose the possibility that we would find that course
of action appropriate in a future case. That said, we believe
constitutional avoidance principles counsel in favor of the
exercise of caution before passing upon the constitutionality of
a statute in a case that is moot. That caution and the fact that
it is not clear that this issue inherently evades appellate review
lead us to conclude that we should not address the argument
that the NURLTA’s bench trial provision is unconstitutional in
this case.
Public Interest Exception: Appeal Bond
and Notice for Writ of Restitution.
Holcomb assigns two errors in addition to her constitutional
jury trial argument. Holcomb assigns that the county court
violated § 76-1447 by issuing the writ of restitution prior
to setting the appeal bond and that further, the county court
violated her constitutional right to due process by issuing the
writ of restitution without first serving her notice that the writ
would issue. These assignments of error do not warrant review
under the public interest exception to mootness because both
are bound up with the peculiar procedural history of this par-
ticular case.
Recall that in Holcomb’s second assignment of error, she
argues that the county court violated § 76-1447 in failing to
set an appeal bond before it issued the writ of restitution and
Holcomb was removed from the apartment. It strikes us as
quite unlikely that the facts of another case would present
this legal issue for decision. We presume that it is the usual
practice of county court judges, if aware of a request for an
appeal bond in an eviction case, to promptly set an appeal bond
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NP DODGE MGMT. CO. V. HOLCOMB
Cite as 314 Neb. 748and thereby allow the appealing party the opportunity to remain
in his or her residence while the appeal is pending. It appears
that the appeal bond may not have been set in this case until
after the writ of restitution issued because the county court
judge was not previously made aware of Holcomb’s request to
set an appeal bond. Although the record on appeal contains a
June 22, 2021, motion to set an appeal bond and stay the writ
of restitution, there is no indication that motion was set for a
hearing before the county court judge.
In any event, Holcomb had ample time to ensure that an
appeal bond was set. When it entered judgment, the county
court stated that it would not issue a writ of restitution for 30
days. And even after those 30 days passed, the county court
did not actually issue a writ of restitution until almost 3 weeks
later. Even if the county court judge was aware of Holcomb’s
request during that time and simply failed to act, a writ of
mandamus may have been available to compel the setting of
the appeal bond. See In re Smitherman, 533 S.W.3d 907 (Tex.
App. 2017). Cf. State v. Kloke, 78 Neb. 133, 110 N.W. 687(1907). Because we doubt that future courts will fail to set
an appeal bond when asked or that future litigants will fail to
avail themselves of all legal avenues to avoid an impending
eviction, we find this issue is unlikely to recur and therefore
does not warrant review under the public interest exception to
the mootness doctrine. See Rath v. City of Sutton, 267 Neb.
265, 673 N.W.2d 869 (2004) (declining to address issue under
public interest exception that would require detailed examina-
tion into specific factual circumstances of case and, due to its
unique facts, was unlikely to recur).
The unique posttrial procedural history also leads us to
conclude that we should decline to reach Holcomb’s third
assigned error, that the county court’s issuance of the writ of
restitution without serving Holcomb notice violated her right
to due process. In the normal case, we expect that a tenant
against whom a judgment of eviction has been entered will
either (1) appeal and post the requisite appeal bond to stay
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NP DODGE MGMT. CO. V. HOLCOMB
Cite as 314 Neb. 748enforcement of the writ of restitution pending appeal or (2)
choose not to appeal and face imminent removal from the
premises. The writ of restitution would not be enforced pend-
ing appeal in the first scenario, and a tenant in the second sce-
nario will not be caught off guard when the writ of restitution
is enforced, since the relief granted to a landlord in an action
for possession under the NURLTA is “recovery of possession
of the premises.” § 76-1431(4). See, also, § 76-1446 (“[i]f
judgment is rendered against the defendant for the restitution
of the premises, the court shall . . . issue a writ of restitution,
directing the constable or sheriff to restore possession of the
premises to the plaintiff on a specified date not more than ten
days after issuance of the writ of restitution”). Only in a situa-
tion where, as here, a tenant desires to stay enforcement of the
writ but fails to do so could there possibly be a question about
whether the tenant was given adequate notice that the writ of
restitution would issue. For the reasons we have explained,
however, we believe it unlikely that this situation will recur.
We thus decline to reach this issue under the public interest
exception to the mootness doctrine. See Rath, supra.Collateral Consequences.
In addition to the public interest exception to the moot-
ness doctrine, Holcomb also argues that we should proceed
to the merits of her appeal under a separate exception: the
collateral consequences exception. Generally, that exception
“permits adjudication of the merits of a criminal case where
the petitioner may suffer future state or federal penalties
or disabilities as a result of the [criminal] judgment” even
though the criminal sentence has already been served. State v.
Patterson, 237 Neb. 198, 202, 465 N.W.2d 743, 747 (1991),
citing St. Pierre v. United States, 319 U.S. 41, 63 S. Ct. 910,
87 L. Ed. 1199 (1943). Holcomb suggests that she will face
negative collateral consequences if the judgment of eviction
is not vacated. She claims that as a result of that judgment,
landlords may not accept her as a tenant and she may be
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Cite as 314 Neb. 748disqualified from certain subsidized housing programs. This
court has previously refused to apply the collateral conse-
quences exception to mootness outside the criminal context,
however, and we decline to do so here. See Hron v. Donlan,
259 Neb. 259, 609 N.W.2d 379 (2000) (refusing to vacate
protection order in moot appeal because appellant faced no
collateral consequences from criminal conviction).
CONCLUSION
Because this case is moot, we dismiss the appeal.
Appeal dismissed.
Papik, J., concurring.
I agree with the majority opinion that this case is moot
and that therefore, the appeal should be dismissed. That said,
I believe Holcomb has identified a potential constitutional
problem with the provision of Nebraska’s Uniform Residential
Landlord and Tenant Act (the NURLTA) requiring that actions
for possession be tried to the court. I write separately to high-
light why I believe the bench trial provision may rest on con-
stitutionally fragile ground.
Constitutionality of NURLTA’s
Bench Trial Provision.
The statute providing for actions for possession under the
NURLTA states that such an action “shall be tried by the court
without a jury.” Neb. Rev. Stat. § 76-1446 (Reissue 2018).
When the NURLTA was first enacted in 1974, this provi-
sion was not present. It was added by a statutory amendment
enacted in 1995. See 1995 Neb. Laws, L.B. 52. Holcomb
argues this provision violates article I, § 6, of the Nebraska
Constitution.
Article I, § 6, of the Nebraska Constitution provides that
the “right of trial by jury shall remain inviolate.” We have
long understood this provision to “preserve the right to a
jury trial as it existed at common law and under statutes in
force when the Nebraska Constitution was adopted in 1875.”
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Cite as 314 Neb. 748Eihusen v. Eihusen, 272 Neb. 462, 466, 723 N.W.2d 60, 63
(2006). See, also, Bell v. State, 104 Neb. 203, 176 N.W. 544(1920). At common law, legal claims were tried by a jury and
equitable claims were tried by a court. Schmid v. Simmons,
311 Neb. 48, 970 N.W.2d 735 (2022). Thus, in Nebraska,
it is well established that litigants are typically entitled to a
jury trial on legal claims, but not equitable claims. Id. As a
result, when a party contends that it is constitutionally entitled
to a jury trial, we usually resolve the issue by determin-
ing “whether the action is of an equitable or legal nature.”
Eihusen, 272 Neb. at 467, 723 N.W.2d at 63, citing State ex
rel. Douglas v. Schroeder, 222 Neb. 473, 384 N.W.2d 626(1986). To determine whether an action is equitable or legal
in nature, we consider its “essential character,” as well as the
“remedy or relief it seeks.” See State ex rel. Cherry v. Burns,
258 Neb. 216, 223, 602 N.W.2d 477, 482 (1999).
The essential character of § 76-1446 is an “action for pos-
session” of real property leased to a tenant. See, also, Neb.
Rev. Stat. §§ 76-1440 to 76-1447 (Reissue 2018). All other
causes of action relating to the tenancy “shall be answered
and tried separately” from the sole question of possession that
an action tried under § 76-1446 resolves. See § 76-1441. The
relief awarded, if the landlord prevails, is “restitution of the
premises” to the landlord. See § 76-1446.
Our cases—both ancient and recent—have recognized that
an action to recover possession of real property is legal, not
equitable, in nature. For example, nearly a century ago, this
court held that a landlord was not entitled to an injunction
restraining a lessee from interfering with the landlord’s right
to enter the premises. The court explained that the landlord
could not rely on an equitable remedy—an injunction—when
he had an adequate remedy at law—an action for possession
of the premises. See Vance v. Sumner, 119 Neb. 630, 230
N.W. 490 (1930). Other cases decided even earlier in our
state’s history also describe actions for possession of real
property as legal in nature. See, Mohat v. Hutt, 75 Neb. 732,
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Cite as 314 Neb. 748106 N.W. 659 (1906); Wehmer v. Fokenga, 57 Neb. 510, 78
N.W. 28 (1899); Warlier v. Williams, 53 Neb. 143, 73 N.W.
539 (1897); Morton v. Green, 2 Neb. 441, 451 (1872) (“[t]his
was an action to recover the possession of lands, commonly
styled an action of ejectment, and is purely legal in its char-
acter”). Fast forward to the modern era, and this court has
continued to treat actions for possession of real property as
legal in nature. Just 2 years ago, we observed that “[a]n action
for restitution of premises brought under [the NURLTA] is an
action at law.” Dreesen Enters. v. Dreesen, 308 Neb. 433, 439,
954 N.W.2d 874, 879 (2021).
This court’s characterization of actions for possession of
real property as legal in nature is hardly anomalous. Consistent
with this court’s holdings in the early years of Nebraska’s his-
tory, the U.S. Supreme Court has stated that although it is dif-
ficult to state “any general rule” that would distinguish suits in
equity from actions at law, it could say that “where an action
is simply for the recovery and possession of specific real or
personal property, or for the recovery of a money judgment,
the action is one at law.” Whitehead v. Shattuck, 138 U.S.
146, 151, 11 S. Ct. 276, 34 L. Ed. 873 (1891) (emphasis sup-
plied). See, also, Scott v. Neely, 140 U.S. 106, 110, 11 S. Ct.
712, 35 L. Ed. 358 (1891) (“[a]ll actions which seek to recover
specific property, real or personal, . . . are legal actions”).
Leading historians of the common law likewise describe the
various modes of recovering real property as common-law
actions triable by jury. See F.W. Maitland, Equity, Also, the
Forms of Action at Common Law: Two Courses of Lectures
333 (A.H. Chaytor & W.J. Whittaker eds., 1926); Theodore
F.T. Plucknett, A Concise History of the Common Law 130
(5th ed. 1956).
Although this court has never had occasion to consider
whether the nature of an action for possession under the
NURLTA means that a party to such an action is entitled to
a jury trial, many other courts have concluded that similar
actions by a landlord to evict a tenant and recover possession
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similar constitutional jury trial guarantees. The most notable
such example is the U.S. Supreme Court’s decision in Pernell
v. Southall Realty, 416 U.S. 363, 94 S. Ct. 1723, 40 L. Ed.
2d 198 (1974). In that case, the U.S. Supreme Court held that
the District of Columbia’s summary eviction statute, which
did not provide for a jury trial, was inconsistent with the jury
trial guarantee set forth in the Seventh Amendment to the U.S.
Constitution. In its opinion, the U.S. Supreme Court relied
on the practice at common law, as well the cases referenced
above, in recognizing that actions to recover real property were
historically treated as actions at law triable to a jury. It rejected
an argument that juries were available only where title was in
issue and explained that common-law actions for possession
alone were also treated as legal in nature and triable to a jury.
And since the “right to recover possession of real property”
was “a right ascertained and protected by courts at common
law,” the U.S. Supreme Court held the Seventh Amendment
preserved the right to a jury trial in actions brought under the
District of Columbia’s summary eviction statute. Pernell, 416
U.S. at 376.
Because the Seventh Amendment’s jury trial guarantee does
not apply to suits in state courts, see, e.g., Monterey v. Del
Monte Dunes at Monterey, Ltd., 526 U.S. 687, 119 S. Ct.
1624, 143 L. Ed. 2d 882 (1999), the U.S. Supreme Court’s
decision in Pernell, supra, is not binding in this or other
state courts. Even so, most state courts to consider the issue
have followed the analytical path laid out in Pernell and have
concluded that, under jury trial guarantees similar to ours,
statutory actions by a landlord to recover possession of real
property from a tenant are legal in nature and are thus triable
to a jury. See, Ex Parte Moore, 880 So. 2d 1131 (Ala. 2003);
Hill v. Levenson, 259 Ga. 395, 383 S.E.2d 110 (1989); N.
Sch. Congregate Housing v. Merrithew, 558 A.2d 1189 (Me.
1989); Criss v. Salvation Army Residences, 173 W. Va. 634,
319 S.E.2d 403 (1984); Baldwin Sod Farms, Inc. v. Corrigan,
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Cite as 314 Neb. 748746 So. 2d 1198 (Fla. App. 1999). But see Vinson v. Hamilton,
854 P.2d 733 (Alaska 1993) (holding that action for possession
brought under forcible entry and detainer statute was equitable
in nature and that thus, parties did not have state constitutional
right to jury trial).
The longstanding precedent of this court and the weight
of authority from other jurisdictions thus appears to support
Holcomb’s argument that actions for possession under the
NURLTA are legal in nature. And because the constitutional
right to a jury trial extends to actions that are legal in nature,
article I, § 6, would seem to afford litigants the right to a jury
trial for actions brought under § 76-1446.
In addition to the legal nature of actions for possession,
statutes in effect at the time article I, § 6, was adopted also
appear to support the argument that the jury trial guarantee
applies to actions for possession under the NURLTA. Statutes
in effect at that time are relevant because that constitutional
provision states that the “right of trial by jury shall remain
inviolate.” In light of that language, we have long inter-
preted article I, § 6, to “preserve the right to a jury trial as
it existed at common law and under statutes in force when
the Nebraska Constitution was adopted in 1875.” Eihusen
v. Eihusen, 272 Neb. 462, 466, 723 N.W.2d 60, 63 (2006)
(emphasis supplied).
At least two Nebraska statutes in effect in 1875 provided
the right to a jury trial in actions to recover real property.
First, in 1875, the Nebraska Code of Civil Procedure pro-
vided that “[i]ssues of law must be tried by the court” but
that “[i]ssues of fact arising in actions for the recovery of
money, or of a specific real or personal property, shall be
tried by a jury, unless a jury trial is waived, or a reference
be ordered as hereinafter provided.” Comp. Stat. ch. 2, § 280
(1881) (emphasis supplied); Rev. Stat. ch. 2, § 280, p. 440
(1866) (same).
In addition to the Nebraska Code of Civil Procedure,
Nebraska’s forcible entry and detainer statute that existed in
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Cite as 314 Neb. 7481875 independently guaranteed the right to a jury trial in sum-
mary possession actions. See Comp. Stat. ch. 10, § 1028 (1881);
Rev. Stat. ch. 10, § 1028, p. 576 (1866). As NP Dodge admit-
ted in this case, “the procedures set forth in [the NURLTA] are
essentially the same as the procedures found” under the forcible
entry and detainer statutes that exist today. Brief for appellee
at 21. The forcible entry and detainer statutes have remained
essentially unamended since 1875. Compare Rev. Stat. ch. 10,
§§ 1019 through 1032, pp. 574-77 (1866), with Neb. Rev. Stat.
§§ 25-21,219 through 25-21,235 (Reissue 2016).
Like the possession action under the NURLTA, the sole
purpose of a forcible entry and detainer action in 1875 was
“to determine the immediate right of possession.” Federal Nat.
Mortgage Assn. v. Marcuzzo, 289 Neb. 301, 310, 854 N.W.2d
774, 781 (2014). See Neb. Rev. Stat. § 76-1441(1) (Reissue
2018). By its terms, forcible entry and detainer applied “in
all cases against tenants holding over their terms,” and the
statutory remedy was “restitution of the premises” enforced
by issuance of a “writ of restitution.” Rev. Stat. ch. 10,
§§ 1020, 1027, and 1031, pp. 574-76 (1866). Likewise, under
the NURLTA, a landlord who succeeds at trial is entitled to
“restitution of the premises” enforced by issuance of a “writ of
restitution.” § 76-1446. Nebraska’s forcible entry and detainer
statute that existed in 1875 thus appears to be “substantially
similar” to the possession action authorized by the NURLTA.
Eihusen, 272 Neb. at 467, 723 N.W.2d at 64.
A landlord-tenant eviction proceeding in 1875 would have
been triable to a jury under both the Nebraska Code of Civil
Procedure and the forcible entry and detainer statutes then in
effect in Nebraska. The fact that these statutes codified the
same right to a jury trial that existed for real property pos-
session actions at common law is unsurprising. In 1866, the
Territorial Legislature of Nebraska “adopted[] and declared”
the “common law of England” to be the law in Nebraska
to the extent not inconsistent with the U.S. Constitution,
“the organic law of this territory,” or with statutes passed by
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Cite as 314 Neb. 748the Legislature. Rev. Stat. ch. 7, § 1, p. 81 (1866), now codi-
fied at Neb. Rev. Stat. § 49-101 (Reissue 2021). The jury trial
provisions in the Nebraska Code of Civil Procedure and forc-
ible entry and detainer statutes that existed in 1875 thus could
be understood as the Legislature’s attempt to faithfully imple-
ment the common-law right to a jury trial in possession actions
as the law in Nebraska.
Despite all of the foregoing, NP Dodge and the Attorney
General, who filed a brief defending the constitutionality of
the NURLTA’s bench trial provision, argued in this case that
article I, § 6, of the Nebraska Constitution does not require
that actions for possession under the NURLTA be triable to a
jury. Their primary argument in support of this position was
that such actions are special or summary proceedings. They
contended that under State v. Moores, 56 Neb. 1, 76 N.W. 530(1898), the constitutional right to a jury trial does not extend to
special or summary proceedings.
To be sure, there is language in Moores in which this court
quoted an opinion of the Arkansas Supreme Court stating that
“‘[t]he right of trial by jury, at common law, never existed in
. . . summary proceedings.’” 56 Neb. at 8, 76 N.W. at 532,
quoting State v. Johnson, 26 Ark. 281 (1870). And although
Moores does not expressly mention special proceedings, NP
Dodge and the Attorney General argued that some legal ency-
clopedias and other jurisdictions have stated that a constitu-
tional right to a jury trial also does not extend to such proceed-
ings. See, e.g., 47 Am. Jur. 2d Jury § 39 (2017); 50A C.J.S.
Juries § 37 (2019).
NP Dodge and the Attorney General took the position
that an action for possession under § 76-1446 qualifies as
both a summary and special proceeding under these authori-
ties. Although the exact definitions they offered for these
categories were not completely clear to me, they seemed to
argue that an action for possession under the NURLTA is
a special proceeding because it is codified in chapter 76 of
the Nebraska Revised Statues, rather than chapter 25, and
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Cite as 314 Neb. 748because it is governed by its own, distinct rules of procedure,
as opposed to the ordinary rules of civil procedure. NP Dodge
and the Attorney General suggested that an action for posses-
sion under the NURLTA is a summary proceeding because
the NURLTA prescribes an expedited timeline for certain
requirements in such an action. See, e.g., § 76-1442 (requiring
service of summons within 3 days); § 76-1446 (requiring that
trial be held “not less than ten nor more than fourteen days
after the issuance of the summons”).
This argument, however, has some flaws. As an initial mat-
ter, the statement NP Dodge and the Attorney General rely on
from Moores, supra, is dicta—the issue in Moores was whether
the jury trial guarantee applied to a quo warranto proceeding.
Furthermore, other dicta in Moores is contrary to the argument
of NP Dodge and the Attorney General. Moores quoted other
language from the same Arkansas Supreme Court opinion that
stated, “‘[s]o far as our research has extended, the right of trial
by jury, at common law, only extended to criminal prosecutions
and in actions where a freehold or goods and chattels were
in dispute. The term “goods and chattels” includes personal
property, choses in action, and chattels real.’” 56 Neb. at 9,
76 N.W. at 533, quoting State v. Johnson, supra. And “chattels
real” meant “interests in land which devolve after the matter
of personal estate, as leaseholds,” Black’s Law Dictionary 194
(2d ed. 1910), or, more simply, “a leasehold estate,” Black’s
Law Dictionary 286 (10th ed. 2014).
In any event, it is difficult for me to conclude that the
language in Moores at issue would allow the Legislature to
remove an action from constitutional jury trial protections by,
for example, codifying an action somewhere other than chap-
ter 25 or requiring that the action be completed in an expe-
dited manner. Our court has never before understood Moores
to allow as much. And if we were to adopt this argument, I do
not know what would prevent the Legislature from enacting
a statute codified somewhere other than chapter 25 or with
some expedited procedures that makes actions that would
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Cite as 314 Neb. 748otherwise be obviously subject to the constitutional jury trial
guarantee—say, a breach of contract action for damages—
“special or summary proceedings” tried by a court instead of
a jury. It is difficult to understand how this is consistent with
article I, § 6’s promise that the “right of trial by jury shall
remain inviolate.”
As opposed to the reading urged by NP Dodge and the
Attorney General, it strikes me as more likely that the lan-
guage in Moores regarding summary proceedings and the
language in legal encyclopedias and cases from other jurisdic-
tions regarding special proceedings recognizes a much less
remarkable proposition: that there are certain proceedings,
sometimes described as special, summary, or statutory, that did
not exist at common law and that the constitutional jury trial
guarantee does not apply to such proceedings. Indeed, many
of the authorities relied upon by NP Dodge and the Attorney
General actually state that it is special or summary proceed-
ings unknown at common law to which a jury trial guarantee
does not apply. See, e.g., Hair Excitement v. L’Oreal U.S.A.,
158 N.H. 363, 368, 965 A.2d 1032, 1037 (2009) (stating that
the right to a jury trial “does not extend . . . to special, statu-
tory, or summary proceedings unknown to the common law”)
(internal quotation marks omitted); State v. Bennion, 112 Idaho
32, 74-75, 730 P.2d 952, 994-95 (1986) (“it has been held that
the right to jury trial does not apply to actions unknown to the
common law . . . and that it does not apply to special proceed-
ings created by statute and not in the nature of common law
actions”); 47 Am. Jur. 2d Jury § 39 at 452-53 (2017) (“[t]he
constitutional right to a jury trial does not apply to special
or summary proceedings unknown to the common law[] and
. . . provided by statute after the adoption of the constitution”);
50A C.J.S. Juries § 37 at 196 (2019) (“there is generally no
right to a jury trial in special proceedings unknown at common
law, or in summary proceedings”).
Our court, too, has recognized that certain statutory pro-
ceedings created after 1875 are neither legal nor equitable
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Cite as 314 Neb. 748because they did not exist at common law and that the con-
stitutional jury trial guarantee does not apply to such proceed-
ings. See, Schroeder v. Oeltjen, 184 Neb. 8, 165 N.W.2d 81(1969) (school district reorganization proceeding); McMaster
v. Wilkinson, 145 Neb. 39, 15 N.W.2d 348 (1944) (election
contest), overruled in part on other grounds, State ex rel.
Brogan v. Boehner, 174 Neb. 689, 119 N.W.2d 147 (1963).
But to the extent it is argued that an action for a writ of resti-
tution under the NURLTA was unknown to the common law,
that seems dubious. As explained at length above, actions for
possession of real property have consistently been treated as
legal in nature, and furthermore, statutes in effect at the time
the Nebraska Constitution was adopted also made actions for
possession of real property triable to a jury.
It is true that the NURLTA contains myriad other provi-
sions besides the few sections creating and effectuating the
summary possession action. See Neb. Rev. Stat. §§ 76-1401to 76-1449 (Reissue 2018). And I acknowledge that some
sections of the NURLTA place statutory obligations on both
landlords and tenants—obligations that did not exist at com-
mon law or by statute in 1875. But in analyzing whether the
Nebraska Constitution protects the right to a jury trial in a
particular proceeding, our court considers not the statutory
enactment as a whole, but, rather, the “essential character” of
the specific “cause of action” upon which the plaintiff brings
suit, as well as the “remedy or relief” the plaintiff seeks. See
State ex rel. Cherry v. Burns, 258 Neb. 216, 223, 602 N.W.2d
477, 482 (1999). Immediate possession of the premises is
the only issue before the court in a possession action under
the NURLTA.
An action for possession is not a case where a landlord
seeks to “obtain injunctive relief to compel” a tenant to give
it lawful access to the premises, § 76-1438(1), nor is it a
case where a tenant sues a landlord to “obtain injunctive
relief for any noncompliance by the landlord with the rental
agreement,” § 76-1425(2). Instead, the remedy awarded in a
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Cite as 314 Neb. 748successful action for possession is simply “recovery of pos-
session of the premises.” §§ 76-1431(4) and 76-1440. And as
discussed extensively above, at common law, causes of action
seeking possession of real property were legal in nature and
were tried by a jury.
Public Interest Exception.
Although the NURLTA’s bench trial provision may be of
questionable constitutionality, I agree we cannot give practical
legal relief to Holcomb in this case and therefore the issue is
moot. And while we can decide otherwise moot issues under
the public interest exception to the mootness doctrine, the
court declines to reach the question of whether the NURLTA’s
bench trial provision is unconstitutional under that exception
in this case.
As I understand the majority opinion, we have declined to
exercise our discretion to decide the constitutionality of the
bench trial provision in this case because this issue may not
inherently evade review. I join the majority opinion with that
understanding, but also observe that the relatively short length
of most residential leases combined with the time it takes for
an appeal to reach this court may make it difficult for this
issue to reach this court in a live fashion. If future cases dem-
onstrate that this issue does, in fact, inherently evade review, I
would be open to addressing this issue under the public inter-
est exception.
Conclusion.
In closing, I note some practical realities after today’s deci-
sion. While the court has not held that the NURLTA’s bench
trial provision is unconstitutional, neither have we held that
it is constitutional. Furthermore, three members of this court,
through this concurrence, have expressed doubts about the
constitutionality of the bench trial provision. Suffice it to say,
the constitutionality of the NURLTA’s bench trial provision
remains an open question.
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Cite as 314 Neb. 748This state of affairs may be of interest to the Legislature.
The Legislature may wish to itself consider the constitution-
ality of, and reassess, the NURLTA’s bench trial provision.
And even if the bench trial provision remains unchanged, the
Legislature may wish to consider addressing whether the rest
of the NURLTA is severable from its bench trial provision and,
if so, how actions for possession under the NURLTA are to
proceed if the bench trial provision is found unconstitutional.
Miller-Lerman and Funke, JJ., join in this concurrence.