Vasquez v. CHI Properties

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/19/2019 09:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
VASQUEZ v. CHI PROPERTIES
Cite as 302 Neb. 742
Claudia Vasquez Cesar Moreno Tinoco,
and
appellants, v. CHI Properties,
LLC, appellee.
___ N.W.2d ___
Filed April 5, 2019. No. S-17-1287.
1. 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 infer-
ences in favor of the nonmoving party.
2. 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 claims asserted.
3. Motions to Dismiss: Pleadings. To prevail against a motion to dis-
miss 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.
4. 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.
5. Statutes: Legislature: Intent. In construing statutes, legislative inten-
tion is to be determined from a general consideration of a whole act
with reference to the subject matter to which it applies and the particu-
lar topic under which the language in question is found, and intent so
deduced from the whole will prevail over that of a particular part con-
sidered separately.
6. Actions: Landlord and Tenant: Leases: Words and Phrases. A ten-
ant 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.
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
VASQUEZ v. CHI PROPERTIES
Cite as 302 Neb. 742
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.
8. 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 pur-
pose of recovery in the event that the trier of fact finds both theories
were proved.
9. Election of Remedies: Pleadings. So long as the plaintiff does not
ultimately obtain two recoveries for the same harm, the doctrine of elec-
tion of remedies does not generally prevent the plaintiff from pleading
remedies that are mutually exclusive.
10. Election of Remedies. Election of remedies applies only when there are
inconsistent remedies for redress of the same single injury.
11. 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 send-
ing 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.
12. 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.
13. 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.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed in part, and in part reversed.
Katelyn Cherney, of Milton R. Abrahams Legal Clinic, for
appellants.
Mark S. Dickhute for appellee.
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
VASQUEZ v. CHI PROPERTIES
Cite as 302 Neb. 742
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
Tenants 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 com-
menced 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 ten-
ants. 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.
BACKGROUND
Complaint
Claudia Vasquez and Cesar Moreno Tinoco (tenants) filed a
complaint against CHI Properties, LLC (CHI). After their first
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
VASQUEZ v. CHI PROPERTIES
Cite as 302 Neb. 742
complaint was dismissed, they were granted leave to amend.
The amended complaint alleged the following.
On or 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.
CHI failed to adequately respond to tenants’ concerns regard-
ing surface mold in the home. In July 2016, tenants’ minor
child was treated for mold exposure and the Douglas County
Health Department was contacted.
By 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.
Tenants 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.
When 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.
Around that same time, CHI accepted a payment by ten-
ants in the amount of $850 for November’s rent. Tenants had
made all prior rent payments since the inception of the rental
agreement.
On or 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.”
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
VASQUEZ v. CHI PROPERTIES
Cite as 302 Neb. 742
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.
The 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 18, 2016.
That 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.
On or 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 Division.
On or 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.
During 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.
At some 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.
On 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.
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
VASQUEZ v. CHI PROPERTIES
Cite as 302 Neb. 742
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 March 14.
On 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.
The 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
rent payment.
Tenants “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 Housing Division.
CHI 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 ten-
ants filed their amended complaint.
Tenants’ 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),
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302 Nebraska R eports
VASQUEZ v. CHI PROPERTIES
Cite as 302 Neb. 742
as well as other provisions of the URLTA, damages, and attor-
ney fees.
Motion to Dismiss
CHI moved to dismiss the complaint under § 6-1112(b)(6)
for failure to state a claim.
CHI asserted, first, that there was no allegation that pos-
session had not been delivered. Thus, according to CHI, there
was no breach of the duty set forth in § 76-1418 and the rem-
edies of § 76-1426 do not apply, including the 5-day notice
to terminate.
Second, CHI asserted that because there was no allegation
that tenants had delivered a “14/30 day Notice to Cure,” ten-
ants could not make any claim for damages under § 76-1425.
Nor, according to CHI, did tenants assert any facts show-
ing 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 attor-
ney fees.
CHI 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.
At the 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.
Order of Dismissal
The 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
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
VASQUEZ v. CHI PROPERTIES
Cite as 302 Neb. 742
physical possession of the property at the commencement of
the rental period.
Regarding 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 ter-
minate 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 avail-
able 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).
The 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 agreement.
The 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 / without
prejudice,” and tenants timely appealed.
ASSIGNMENT OF ERROR
Tenants assign, summarized, that the district court erred in
dismissing their complaint.
STANDARD OF REVIEW
[1] An appellate court reviews a district court’s order grant-
ing 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.1
1
Eadie v. Leise Properties, 300 Neb. 141, 912 N.W.2d 715 (2018); Burklund
v. Fuehrer, 299 Neb. 949, 911 N.W.2d 843 (2018).
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
VASQUEZ v. CHI PROPERTIES
Cite as 302 Neb. 742
ANALYSIS
[2] Nebraska is a notice pleading jurisdiction.2 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 claims asserted.3 The rationale
for this liberal notice pleading standard in civil actions is that
when a party has a valid claim, he or she should recover on it
regardless of a failure to perceive the true basis of the claim at
the pleading stage.
[3,4] Thus, 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.4
Dismissal under § 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.5 We review the district court’s determination as to
whether the plaintiff has stated a claim de novo, accepting as
true all facts that are well pled and the proper and reasonable
inferences of law and fact that may be drawn therefrom, but
not the plaintiff’s conclusions.6
[5] Tenants attempted to enforce at least four different rights
and obligations set forth by at least four different statutes of the
URLTA. However, according to CHI, none of the provisions of
the URLTA allow tenants to recover under the facts pled or the
proper and reasonable inferences of law and fact that may be
drawn therefrom. In order to determine whether tenants stated
a claim under the URLTA, we must determine the meaning of
2
Id.
3
Id.
4
See id.
5
In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017).
6
See, Eadie v. Leise Properties, supra note 1; Burklund v. Fuehrer, supra
note 1.
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VASQUEZ v. CHI PROPERTIES
Cite as 302 Neb. 742
the URLTA statutes independently of the trial court.7 In con-
struing 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 con-
sidered separately.8 The statutory language is to be given its
plain and ordinary meaning, and an appellate court will not
resort to interpretation to ascertain the meaning of statutory
words which are plain, direct, and unambiguous.9
The fundamental objective of statutory interpretation is to
ascertain and carry out the Legislature’s intent.10 In accord­
ance with the mandate of § 76-1402, we must liberally con-
strue and apply the URLTA to promote its underlying purposes
and policies to (1) simplify and modernize the law, (2) encour-
age both the landlord and tenant to maintain and improve the
quality of housing, and (3) make uniform the law among those
states that enact it.
While we agree with the district court that tenants failed
to state a claim for breach of the duty to deliver possession
under § 76-1418, we hold that tenants stated plausible claims
for breaches of the duties to put and keep the rental premises
fit and habitable under § 76-1419, for wrongful ouster under
§ 76-1430, and retaliatory conduct as described by § 76-1439.
These correspond to what tenants labeled as their second,
third, and fourth causes of action. We also hold that the alleged
facts do not present an insuperable bar to relief in the form
of return of their security deposit under § 76-1416(2) “[u]pon
termination of the tenancy . . .” through means not specifi-
cally described by the URLTA. Which precise remedies will be
available to tenants under the URLTA in the event they prove
7
See Pan v. IOC Realty Specialist, 301 Neb. 256, 918 N.W.2d 273 (2018).
8
Id.
9
Id.
10
Id.
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VASQUEZ v. CHI PROPERTIES
Cite as 302 Neb. 742
the alleged breaches of the duties set forth by the URLTA was
not the proper subject of a motion to dismiss, so long as some
remedy was available under the statutory scheme. We find no
merit to CHI’s assertion that tenants lack any remedy under the
URLTA for the breaches alleged.
Duty to Deliver Possession
We first address the duty under § 76-1418 to deliver posses-
sion and its corresponding remedy set forth in § 76-1426. We
agree with CHI and the district court that these provisions of
the URLTA do not apply to the facts alleged. The district court
thus did not err in dismissing tenants’ first cause of action.
Section 76-1418 sets forth a duty of the landlord to deliver
possession at commencement of the rental term:
At the commencement of the term the landlord shall
deliver possession of the premises to the tenant in com-
pliance with the rental agreement and section 76-1419.
The landlord may bring an action for possession against
any person wrongfully in possession and may recover the
damages provided in subsection (3) of section 76-1437. If
the landlord makes reasonable efforts to obtain possession
of the premises, he shall not be liable for an action under
this section.
Section 76-1426 describes remedies for a landlord’s failure
to deliver possession:
If the landlord fails to deliver possession of the dwell-
ing unit to the tenant as provided in section 76-1418, rent
abates until possession is delivered and the tenant shall:
(1) Upon at least five days’ written notice to the land-
lord terminate the rental agreement and upon termination
the landlord shall return all prepaid rent and security; or
(2) Demand performance of the rental agreement by
the landlord and, if the tenant elects, maintain an action
for possession of the dwelling unit against any person
wrongfully in possession or wrongfully withholding pos-
session and recover the damages sustained by him.
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VASQUEZ v. CHI PROPERTIES
Cite as 302 Neb. 742
If a person’s failure to deliver possession is will-
ful and not in good faith, an aggrieved person may
recover from that person an amount not more than three
months’ periodic rent or threefold the actual damages
sustained by him, whichever is greater, and reasonable
attorney’s fees.
Tenants argue that the duty to deliver possession under
§ 76-1426 is a duty to deliver possession to premises that are
fit and habitable. They point out that § 76-1426 refers to “pos-
session of the dwelling . . . as provided in section 76-1418”
and that § 76-1418 describes “possession of the premises . . .
in compliance with . . . section 76-1419,” which describes the
landlord’s duty to put and keep the premises in a fit and habit-
able condition. They argue that the allegations stated a claim
that CHI breached its obligations under § 76-1418 to deliver fit
and habitable premises.
CHI does not deny that the URLTA requires landlords
to deliver possession of habitable property, but argues that
§ 76-1426 pertains only to the commencement of the lease
without possession and not to some later moment in time
after tenants have accepted possession. After commencement
and acceptance of possession, CHI asserts that tenants’ rights
related to lack of habitability are governed by §§ 76-1419,
76-1425, and 76-1427.
[6] We agree with CHI. A tenant who accepts possession
and lives on the property for several months thereafter does not
have a claim under § 76-1418, because the duties described in
§ 76-1418 pertain to the “commencement” of the lease term. In
contrast, the duties set forth in § 76-1419 to comply with mini-
mum housing codes materially affecting health and safety and
to “put and keep” the premises in a fit and habitable condition
are not limited under the plain language to conditions arising
after commencement of the lease term.
For obvious public policy reasons, the URLTA discour-
ages occupancy of premises that are not fit and habitable.
Accordingly, the modifiers “in compliance with . . . . section
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76-1419” or “as provided in section 76-1418” of “possession”
are not contained in either the abatement provisions or the
treble damages provisions of § 76-1426. Instead, § 76-1426
describes that “rent abates until possession is delivered” and
nowhere provides the remedy of rent abatement after posses-
sion is delivered.
Reading §§ 76-1418 and 76-1426 together and in pari mate-
ria with other sections of the URLTA, we conclude that when a
landlord attempts to deliver uninhabitable premises, § 76-1426
provides that the tenant may refuse possession and that rent
abates until possession in compliance with both the rental
agreement and § 76-1419 is delivered. The tenant who has thus
refused possession may either terminate the rental agreement
with 5 days’ notice or demand performance. But a tenant who
accepts possession and lives in uninhabitable premises does not
have a claim under § 76-1418 and instead must proceed under
other provisions of the URLTA.
In this case, tenants alleged that possession of the rental
property was delivered and that they lived there for approxi-
mately 6 months. Under the facts alleged, the remedies pro-
vided in §§ 76-1418 and 76-1426 do not apply. Habitability
issues occurring or discovered during occupancy are addressed
by §§ 76-1419, 76-1425, and 76-1427. We turn next to
these statutes.
Duty to M aintain Fit and
H abitable Premises
Section 76-1419 describes the duties of a landlord to keep
the rental premises fit and habitable. It states in relevant part:
(1) The landlord shall:
(a) Substantially comply, after written or actual notice,
with the requirements of the applicable minimum housing
codes materially affecting health and safety;
(b) Make all repairs and do whatever is necessary, after
written or actual notice, to put and keep the premises in a
fit and habitable condition;
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....
(d) Maintain in good and safe working order and con-
dition all electrical, plumbing, sanitary, heating, ventilat-
ing, air conditioning, and other facilities and appliances,
including elevators, supplied or required to be supplied
by him or her;
....
(f) Supply running water and reasonable amounts of
hot water at all times . . . .
If there exists a minimum housing code applicable to
the premises, the landlord’s maximum duty under this
section shall be determined by subdivision (1)(a) of this
section. The obligations imposed by this section are not
intended to change existing tort law in the state.
The facts alleged in tenants’ complaint demonstrate breaches
of CHI’s duties under § 76-1419. While § 76-1419(1)(a) and
(b) require “written or actual notice” in order to establish the
duty under those subsections, tenants alleged both written and
actual notice of numerous housing code violations “materially
affecting health and safety”11 and which CHI failed to repair
so as to “put and keep the premises in a fit and habitable
condition.”12 Furthermore, tenants alleged that CHI failed to
maintain plumbing and electrical “in good and safe working
order and condition,” as required by § 76-1419(d), or sup-
ply “running water and reasonable amounts of hot water,” as
required by § 76-1419(f ). Those provisions do not set forth
notice as a precondition to those duties.
CHI does not dispute that tenants sufficiently alleged that
it breached its duties under § 76-1419, but argues that tenants
have no remedy for the alleged breaches. CHI elaborates that
tenants elected their statutory remedy under § 76-1427 and that
they received such remedy in full when they chose to not pay
rent in December 2016 and January 2017 while they lived with
11
§ 76-1419(1)(a).
12
§ 76-1419(1)(b).
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relatives. CHI also argues that tenants failed to allege neces-
sary statutory predicates to the remedies set forth in § 76-1425.
We find no merit to these arguments.
Section 76-1405 provides:
(1) The remedies provided by the [URLTA] shall be
so administered that the aggrieved party may recover
appropriate damages. The aggrieved party has a duty to
mitigate damages.
(2) Any right or obligation declared by the [URLTA]
is enforceable by action unless the provision declaring it
specifies a different and limited effect.
Section 76-1425 provides remedies for material noncom-
pliance by the landlord either with the rental agreement or
with § 76-1419 materially affecting health and safety. Section
76-1425 states:
(1) Except as provided in the [URLTA], if there is a
material noncompliance by the landlord with the rental
agreement or a noncompliance with section 76-1419
materially affecting health and safety, the tenant may
deliver a written notice to the landlord specifying the acts
and omissions constituting the breach and that the rental
agreement will terminate upon a date not less than thirty
days after receipt of the notice if the breach is not rem-
edied in fourteen days, and the rental agreement shall ter-
minate as provided in the notice subject to the following.
If the breach is remediable by repairs or the payment of
damages or otherwise and the landlord adequately rem-
edies the breach prior to the date specified in the notice,
the rental agreement will not terminate. If substantially
the same act or omission which constituted a prior non-
compliance of which notice was given recurs within six
months, the tenant may terminate the rental agreement
upon at least fourteen days’ written notice specifying the
breach and the date of termination of the rental agree-
ment. The tenant may not terminate for a condition
caused by the deliberate or negligent act or omission of
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the tenant, a member of his or her family, or other person
on the premises with his or her consent.
(2) Except as provided in the [URLTA], the tenant may
recover damages and obtain injunctive relief for any non-
compliance by the landlord with the rental agreement or
section 76-1419. If the landlord’s noncompliance is will-
ful the tenant may recover reasonable attorney’s fees. If
the landlord’s noncompliance is caused by conditions or
circumstances beyond his or her control, the tenant may
not recover consequential damages, but retains remedies
provided in section 76-1427.
(3) The remedy provided in subsection (2) of this sec-
tion is in addition to any right of the tenant arising under
subsection (1) of this section.
(4) If the rental agreement is terminated, the landlord
shall return all prepaid rent and security recoverable by
the tenant under section 76-1416.
However, if the material noncompliance with § 76-1419
involves the deliberate or negligent failure to supply running
water, hot water, heat, or essential services, then, alternatively
to the remedies set forth in § 76-1425, the tenant may proceed
under § 76-1427. Section 76-1427 states in full:
(1) If contrary to the rental agreement or section
76-1419 the landlord deliberately or negligently fails to
supply running water, hot water, or heat, or essential serv­
ices, the tenant may give written notice to the landlord
specifying the breach and may:
(a) Procure reasonable amounts of hot water, running
water, heat and essential services during the period of
the landlord’s noncompliance and deduct their actual and
reasonable cost from the rent;
(b) Recover damages based upon the diminution in the
fair rental value of the dwelling unit; or
(c) Procure reasonable substitute housing during the
period of the landlord’s noncompliance, in which case
the tenant is excused from paying rent for the period of
the landlord’s noncompliance.
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In addition to the remedy provided in subdivisions (a)
and (c), if the failure to supply is deliberate, the tenant
may recover the actual and reasonable cost or fair and
reasonable value of the substitute housing not in excess
of an amount equal to the periodic rent, and in any case
under this subsection reasonable attorney’s fees.
(2) If the tenant proceeds under this section, he may
not proceed under section 76-1425 as to that breach.
(3) The rights under this section do not arise until the
tenant has given written notice to the landlord or if the
condition was caused by the deliberate or negligent act or
omission of the tenant, a member of his family, or other
person on the premises with his consent. This section is
not intended to cover circumstances beyond the land-
lord’s control.
CHI is correct that the list of possible remedies in
§ 76-1427(1)(a), (b), and (c) are listed in the alternative and
that § 76-1427(2) provides that a tenant who proceeds under
§ 76-1427 “may not proceed under section 76-1425 as to that
breach.” But to the extent CHI’s motion to dismiss sufficiently
asserted the affirmative defense of election of remedies,13 we
conclude that the doctrine does not support the dismissal of
tenants’ complaint.
[7] Election of remedies is an ancient doctrine created by the
courts.14 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.15 It
is largely a rule of policy to prevent vexatious litigation.16 It
requires a plaintiff to choose between inconsistent remedies for
13
See deNourie & Yost Homes v. Frost, 295 Neb. 912, 893 N.W.2d 669
(2017).
14
Port. v. Smith, 240 Neb. 928, 486 N.W.2d 846 (1992).
15
See Bryant Heating v. United States Nat. Bank, 216 Neb. 107, 342 N.W.2d
191 (1983).
16
Id.
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redress of a single injury.17 The basic purpose of the doctrine
of election of remedies is to prevent a plaintiff from receiv-
ing double recovery for a single injury or compensation that
exceeds the damages sustained.18 It is considered a harsh rule
which should not be applied in an oppressive manner.19
The doctrine of election of remedies normally does not pro-
vide grounds for dismissing a complaint under § 6-1112(b)(6)
for failure to state a claim. A claim to relief consists of (1)
a primary right possessed by the plaintiff, (2) a correspond-
ing primary duty devolving upon the defendant, (3) a delict
or wrong done by the defendant which consisted in a breach
of such primary right and duty, (4) a remedial right in favor
of the plaintiff, (5) a remedial duty resting on the defendant
springing from this delict, and (6) the remedy or relief itself.20
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 for relief that is plausible on its face.21 In cases
in which a plaintiff does not or cannot allege specific facts
showing a necessary element, the factual allegations, taken as
true, are nonetheless plausible if they suggest the existence of
the element and raise a reasonable expectation that discovery
will reveal evidence of the element or claim.22 While one of
multiple alleged causes of action may be dismissed for failure
to state a claim,23 one of multiple remedies pled for a single
17
Port. v. Smith, supra note 14.
18
See, Genetti v. Caterpillar, Inc., 261 Neb. 98, 621 N.W.2d 529 (2001);
In re 2007 Appropriations of Niobrara River Waters, 278 Neb. 137, 768
N.W.2d 420 (2009).
19
Vowers & Sons, Inc. v. Strasheim, 254 Neb. 506, 576 N.W.2d 817 (1998).
20
City of Alliance v. Cover-Jones Motor Co., 154 Neb. 900, 50 N.W.2d 349
(1951).
21
Peterson v. Kings Gate Partners, 290 Neb. 658, 861 N.W.2d 444 (2015).
22
Id.
23
See, e.g., Zawaideh v. Nebraska Dept. of Health & Human Servs., 285
Neb. 48, 825 N.W.2d 204 (2013).
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breach within the context of a single cause of action is not the
proper subject of dismissal under § 6-1112(b)(6) for failure to
“state a claim.”
[8,9] It is true that at the pleading stage in a lawsuit, a party
may be required to elect between two inconsistent theories of
recovery, such as when rescission of a contract would preclude
damages for breach of the contract.24 But there was no order
in this case requiring tenants to elect a theory of recovery.25
Moreover, when the election is between remedies with differ-
ent elements of proof under the same complaint, we have held
that 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.26 This is because
a futile attempt to assert a nonexistent remedy does not, under
the doctrine of election of remedies, preclude a resort to a legal
remedy or operate as an estoppel to assert it.27 So long as the
plaintiff does not ultimately obtain two recoveries for the same
harm,28 the doctrine of election of remedies does not generally
prevent the plaintiff from pleading remedies that are mutu-
ally exclusive.
CHI nevertheless proposes that tenants’ act of living rent
free with relatives while not paying rent to CHI was an elec-
tion of the remedy of abatement under § 76-1427, which ten-
ants have already fully realized, and thus they can no longer
state any claim for relief. There are several problems with
this argument.
24
See Platte Valley Fed. Sav. & Loan Assn. v. Gray, 226 Neb. 135, 409
N.W.2d 617 (1987).
25
See Southwest Trinity Constr. v. St. Paul Fire & Marine, 243 Neb. 55, 497
N.W.2d 366 (1993).
26
See Genetti v. Caterpillar, Inc., supra note 18. See, also, 28A C.J.S.
Election of Remedies § 6 (2008).
27
Russo v. Williams, 160 Neb. 564, 71 N.W.2d 131 (1955).
28
See Stephen S. Ashley, Bad Faith Actions Liability & Damages § 7:17 (2d
ed. 2018), Westlaw (database updated Sept. 2018).
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First, pursuing a remedy is an irrevocable election only if
pursued to a determinative and advantageous conclusion to
the irreparable injury of the other party.29 Even commencing
suit for one remedy has been held not to be a manifesta-
tion of the plaintiff’s choice of that remedy, “‘so long as the
defend­ant has not so altered his position as to make it unjust
to permit the change.’”30 Tenants’ act of finding suitable hous-
ing from November 18, 2016, until March 12, 2017, when
the Housing Division would not allow anyone to occupy the
rental property, and not paying rent during that time, was not
an irrevocable election of the remedy of abatement under
§ 76-1427(1)(c).
Nor is it true that under the alleged facts, the remedies
provided under § 76-1427 were fully realized. Section
76-1427(1)(c) expressly states that tenants are “excused
from paying rent for the period of the landlord’s noncompli-
ance.” Yet, CHI allegedly demanded that tenants pay rent
for November 2016 and February 2017, and tenants alleged
that they did so, even though during approximately one-half
of November and nearly all of February, they were living in
substitute housing. CHI fails to explain how tenants have no
right to enforce the provision in § 76-1427(1)(c) that they be
excused from paying rent while living in substitute housing
and while CHI deliberately or negligently failed to supply run-
ning water, hot water, heat, or essential services. CHI also fails
to explain why tenants did not sufficiently allege facts showing
that they could recover reasonable attorney fees pursuant to
§ 76-1427(1).
[10] Furthermore, tenants’ complaint alleges more than one
breach and more than one injury with respect to the duties set
forth by § 76-1419. Election of remedies applies only when
there are inconsistent remedies for redress of the same single
29
See Porter v. Smith, supra note 14. See, also, Bratt v. Wishart, 136 Neb.
899, 287 N.W. 769 (1939).
30
Bratt v. Wishart, supra note 29, 136 Neb. at 904, 287 N.W. at 771.
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injury.31 Likewise, § 76-1427(2) states that resort to the rem-
edies of § 76-1427 precludes proceeding under § 76-1425 “as
to that breach.” (Emphasis supplied.) Before tenants were
allegedly forced to vacate the premises because of a major
electrical hazard and other code violations, they allegedly lived
for approximately 6 months with water leaks and mold. The
mold exposure allegedly caused medical complications for ten-
ants’ child. The allegations indicate that tenants notified CHI
of the problem, as did the Douglas County Health Department.
Tenants did not seek alternative suitable housing during that
time. Instead, they paid full rent and otherwise did not exercise
any of the remedies set forth in § 76-1427.
In fact, as to the water leak and mold, such noncompliance
with § 76-1419 was not a failure to supply “running water, hot
water, or heat, or essential services,” such that § 76-1427(1)
could even apply. Therefore, as to CHI’s failure to correct the
water leak and mold, tenants do not have a choice between
§§ 76-1427 and 76-1425, which could lead to an election of
remedies. Instead, they are limited to § 76-1425.
And we disagree with the district court’s conclusion that
the complaint presented an insuperable bar to any relief under
§ 76-1425. First, tenants’ failure to provide CHI with a “14/30
day Notice” of termination does not preclude all relief under
§ 76-1425.
The underlying conclusion regarding the lack of a 14/30-
day notice appears to have been that tenants cannot recover
their security deposit pursuant to § 76-1416 if the lease was
not terminated under the URLTA. We pause to note that while
tenants did not allege facts constituting a 14/30-day notice,
“termination of the tenancy” referred to in § 76-1416(2)
can occur in many ways other than the process described
by § 76-1425. For instance, a tenant who claims a breach of
§ 76-1419, but cannot show termination through a 14/30-day
31
See, Porter v. Smith, supra note 14. See, also, deNourie & Yost Homes v.
Frost, supra note 13.
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notice, can nevertheless recover the security deposit once the
term of the lease has expired, so long as the security deposit
has not been forfeited.
In any event, there are other remedies provided by
§ 76-1425 which do not require a 14/30-day notice. Section
76-1425(2) provides that “the tenant may recover damages
. . . for any noncompliance by the landlord with the rental
agreement or section 76-1419.” Further, “If the landlord’s
noncompliance is willful the tenant may recover reasonable
attorney’s fees.”32 Under the plain language of the statute,
these remedies are “in addition to any right of the tenant aris-
ing under subsection (1).”33 To the extent the district court
reasoned that a 14/30-day notice is a prerequisite to dam-
ages or attorney fees under § 76-1427(2), it erred. Nothing
in subsection (2) indicates that the particular notice described
in subsection (1) is a prerequisite for the relief described in
subsection (2).
[11] Interpreting § 76-1425(2) as requiring a 14/30-day
notice as a prerequisite to damages and attorney fees is not
only inconsistent with the plain language of § 76-1425(2),
which does not require a 14/30-day notice, but also with
§ 76-1419, which requires written or actual notice before a
landlord has a duty to comply with applicable minimum hous-
ing codes materially affecting health and safety or to make
all repairs and do whatever is necessary to put and keep the
premises in a fit and habitable condition. It would be a strained
reading of the statutory scheme to imply that, in addition to the
written or actual notice under § 76-1419, a tenant must give a
14/30-day notice—not just to terminate the lease, but also to
have a right to damages and attorney fees under § 76-1425(2).
We hold that so long as a tenant has given notice when required
by § 76-1419, a tenant can seek damages or injunctive relief
under § 76-1425(2) without sending notice under § 76-1425(1)
32
§ 76-1425(2).
33
§ 76-1425(3).
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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.
[12] We also conclude that the district court erred in read-
ing § 76-1425(2) as providing the remedy of damages only
if the tenant also seeks injunctive relief. Section 76-1425(2)
states in relevant part that “the tenant may recover damages
and obtain injunctive relief for any noncompliance.” While
the district court was correct that “and” is a conjunction and
its function is to indicate a connection or addition34 between
“damages” and “injunctive relief,” it does not follow that the
tenant must choose to pursue both in order to pursue one.
Rather, we agree with tenants that the conjunctive “and” in
§ 76-1425(2) “serves to vest a tenant with two distinct options
for relief” and does not require that both be pursued in order
to pursue either.35
At most, the meaning of § 76-1425(2) in this regard is
ambiguous. In construing a statute, an appellate court will,
if possible, try to avoid a construction which would lead to
absurd, unconscionable, or unjust results.36 Neither CHI nor
the lower court has explained how it would be just to require
tenants to obtain injunctive relief in order to recover damages
when a landlord breaches the duties set forth in § 76-1419
relating to fitness and habitability. We can envision situations
where damages have been incurred but where, for exam-
ple, injunctive relief is moot by the time a tenant brings an
action under the URLTA. To interpret a tenant’s right to dam-
ages under § 76-1425(2) as contingent upon injunctive relief
and injunctive relief as contingent upon an award of dam-
ages would allow landlords to fortuitously escape liability for
breaches of § 76-1419. Such a reading would thus be contrary
34
See “And,” Merriam-Webster.com, https://www.merriam-webster.com/
dictionary/and (last visited Mar. 27, 2019).
35
Brief for appellants at 17.
36
In re Estate of Eickmeyer, 262 Neb. 17, 628 N.W.2d 246 (2001).
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to the purpose of the URLTA to encourage the landlord to
maintain and improve the quality of housing.
We find that the complaint presents no insuperable bar to
relief for any of the claimed breaches of the duties set forth by
§ 76-1419.
R etaliation
We turn to tenants’ cause of action for retaliation under
§ 76-1439. The complaint alleged that the rental property is
still under a vacate order and that CHI, in retaliation for ten-
ants’ complaints to the Douglas County Health Department
and the Housing Division, demanded tenants vacate or pay
rent during periods they were unable to live on the premises.
We hold that tenants thereby alleged sufficient facts to state a
cause of action for retaliation under § 76-1439.
Section 76-1439 provides:
(1) Except as provided in this section, a landlord may
not retaliate by increasing rent or decreasing services or
by bringing or threatening to bring an action for posses-
sion after:
(a) The tenant has complained to a government agency
charged with responsibility for enforcement of a mini-
mum building or housing code of a violation applicable
to the premises materially affecting health and safety[.]
....
(2) If the landlord acts in violation of subsection (1),
the tenant is entitled to the remedies provided in section
76-1430 and has a defense in action against him for pos-
session . . . .
(3) Notwithstanding subsections (1) and (2), a landlord
may bring an action for possession if:
(a) The violation of the applicable minimum building
or housing code was caused primarily by lack of reason-
able care by the tenant or other person in his household or
upon the premises with his consent;
(b) The tenant is in default in rent; or
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(c) Compliance with the applicable minimum building
or housing code requires alteration, remodeling, or demo-
lition which would effectively deprive the tenant of use
of the dwelling unit.
The maintenance of the action does not release the
landlord from liability under subsection (2) of section
76-1425.
Section 76-1430, referred to by § 76-1439, describes that
the tenant may recover possession or terminate the rental
agreement and, in either case, recover an amount equal
to three months’ periodic rent as liquidated damages, and
a reasonable attorney’s fee. If the rental agreement is
terminated the landlord shall return all prepaid rent and
security recoverable under section 76-1416.
[13] Nothing in these sections requires a specific notice of
termination of a rental agreement. CHI argues, and the district
court seemed to believe, that termination under § 76-1439 can-
not be recognized without a separate action for termination. It
was undisputed that tenants did not recover possession. Neither
§§ 76-1430 and 76-1439 nor any other provision of the URLTA
indicates that a separate action for termination of a rental
agreement is a prerequisite to termination under the URLTA.
The only reference to maintenance of an action in the URLTA
is the reference to an action for possession by the landlord
against a tenant wrongfully in possession or by a tenant against
another party wrongfully in possession.37
Other than setting forth the right to terminate a rental
agreement under various sections already discussed and pro-
viding in § 76-1405(2) that “[a]ny right or obligation declared
by the [URLTA] is enforceable by action unless the provi-
sion declaring it specifies a different and limited effect,” the
URLTA nowhere refers to an “action” for termination. Indeed,
we have never recognized a separate cause of action for ter-
mination of a rental agreement, as such. To the contrary, in
37
See § 76-1439.
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the context of determining when the statute of limitations
begins to run for actions for possession, we have referred to
termination of a lease as arising as a factual matter pursuant
to the provisions of the URLTA before any action has been
brought.38 Similarly, under common law, leases terminated
automatically upon various defaults under self-executing con-
tractual provisions without any action being required by lessor
or lessee.39 Statutes that effect a change in common law or
take away a common-law right should be strictly construed,
and a construction that restricts or removes a common-law
right should not be adopted unless the plain words of the stat-
ute compel it.40
Tenants’ complaint does not present an insuperable bar to
relief under § 76-1439. Therefore, the district court erred in
dismissing tenants’ alleged fourth cause of action.
Ouster
Finally, we find that the district court erred in concluding
that tenants failed to state a claim for ouster in violation of
§ 76-1430. Section 76-1430 provides in relevant part that a
tenant may take action “[i]f the landlord unlawfully removes
or excludes the tenant from the premises or willfully and
wrongfully diminishes services to the tenant by interrupting
or causing the interruption of electric, gas, water or other
essential service to the tenant . . . .” The allegations indicate
that water services were interrupted as a result of plumbing
repairs which were in progress. Tenants also alleged that CHI
had unlawfully told them to vacate in October 2016 in retali-
ation for their reports to the Housing Division. These allega-
tions do not demonstrate an insuperable bar to relief under
§ 76-1430.
38
See Blankenau v. Landess, 261 Neb. 906, 626 N.W.2d 588 (2001). See,
also, Pollock v. Whipple, 33 Neb. 752, 51 N.W. 130 (1892).
39
See Valentine Oil Co. v. Powers, 157 Neb. 71, 59 N.W.2d 150 (1953).
40
See Tadros v. City of Omaha, 273 Neb. 935, 735 N.W.2d 377 (2007).
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CONCLUSION
Accepting as true all facts that are well pled and the proper
and reasonable inferences of law and fact that may be drawn
therefrom, the complaint states plausible claims for relief under
§§ 76-1419, 76-1430, and 76-1439 of the URLTA for retalia-
tory conduct, ouster, and failure to maintain fit and habitable
premises, but not under §§ 76-1418 and 76-1426 for failure to
deliver possession. We affirm the district court’s order of dis-
missal as to tenants’ first cause of action, but reverse as to their
alleged second, third, and fourth causes of action.
A ffirmed in part, and in part reversed.