S-24-0904 Saint Joseph Tower Assisted Living (Appellee) v. Jayne Royce (Appellant)
Appeal from the District Court for Douglas County, Judge Peter C. Battaillon on appeal from the County Court for Douglas County, Judge Beau G. Finley
Attorneys: James Drawz and Caitlin Cedfeldt (Legal Aid of Nebraska for Appellant) and Mary M. Schott (Evans & Dixon, LLC for Appellee)
Civil: Restitution of Real Property
Proceedings below: The county court granted Appellee restitution of premises, and on appeal, the district court affirmed. On its own motion, the Nebraska Supreme Court ordered this case to be transferred from the docket of the Nebraska Court of Appeals to its docket.
Issues: Appellant assigns the following errors: 1) Generally, a party need only plead sufficient facts to give the opposing party fair notice of the claims asserted; 2) It “is a general principle that specific statutory provisions relating to a particular subject control over general provisions;” 3) A complaint for restitution brought under the Uniform Residential Landlord and Tenant Act must contain “the specific statutory authority under which possession is sought….” 4) A notice issued under the Uniform Residential Landlord and Tenant Act is waived when the landlord accepts payment after it had knowledge of the breach; 5) Waiver applies to all manner of lease violations, not merely nonpayment of rent; 6) If there is a noncompliance with section 76-1421 materially affecting health and safety or a material noncompliance by the tenant with the rental agreement or any separate agreement, the landlord may deliver a written notice to the tenant 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 remedied in fourteen days, and the rental agreement shall terminate as provided in the notice subject to the following. Neb. Rev. Stat. § 76-1431(1); 8) If substantially the same act or omission which constituted a prior noncompliance of which notice was given recurs within six months, the landlord may terminate the rental agreement upon at least fourteen days’ written notice specifying the breach and the date of termination of the rental agreement; 8) The doctrine of res judicata bars: re-litigation of any right, fact, or matter directly addressed or necessarily included in a former adjudication if (1) the former judgment was rendered by a court of competent jurisdiction, (2) the former judgment was a final judgment, (3) the former judgment was on the merits, and (4) the same parties or their privies were involved in both actions; 9) The test for determining whether a subsequent suit alleges the same cause of action is “determined by whether the right sought to be vindicated rests upon the same operative facts. If so, the same cause of action has been alleged, even if different theories of recovery are relied upon;” 10) “A judgment will not operate as res judicata unless it appears on the face of the record, or is shown by extrinsic evidence, that the precise question was raised and determined in the former suit;” 11) “[W]hether a former judgment is a bar to an action ordinarily depends on whether the same evidence will sustain both the present and the former action, and when it appears that different proof is required, a judgment in one of them is no bar to the other;” 12) A dismissal of a case with prejudice is generally held to be a dismissal on the merits; 13) An appeal by the defendant shall stay the execution of any writ of restitution, so long as the defendant deposits with the clerk of the district court the amount of judgment and costs, or gives an appeal bond with surety therefor, and thereafter pays into court, on a monthly basis, an amount equal to the monthly rent called for by the rental agreement at the time the complaint was filed; 14) “Mootness refers to events occurring after the filing of suit which eradicate the requisite personal interest in the resolution of the dispute existed at the beginning of the litigation;” 15) “Cases become moot when the issue initially presented ceases to exist or the litigants lack a legally cognizable interest in the outcome of the litigation;” 16) Mootness is an issue of justiciability that, while not completely forestalling appellate jurisdiction, can result in summary dismissal; 17) A case presents a question of a public nature when it is of importance to all citizens in the state; and 18) A case presents a matter of public interest when it presents an issue that affects all courts or jails in the state. State ex rel. Coulter v. McFarland, 166 Neb. 242, 250 (1958).