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SCHMID v. SIMMONS

Cite as 311 Neb. 48

Lanny Schmid, an individual, appellee and 

cross-appellee, v. Lee Simmons, an individual, and 

Niobrara River Ranch, L.L.C., a Nebraska limited 

liability company, appellants, MAR14, LLC, 

a Nebraska limited liability company, 

appellee and cross-appellant, 

and Thomas Masters, an 

individual, appellee.

___ N.W.2d ___

Filed March 4, 2022. No. S-20-524.

1. Trial: Equity: Appeal and Error. On appeal from the bench trial 

of an equity action, the standard of review is de novo on the record 

and the court must resolve questions of law and fact independently 

of the trial court’s determinations. When the evidence is in conflict, 

the appellate court considers and may give weight to the fact that the 

trial court observed the witnesses and accepted one version of the facts 

over another.

2. Constitutional Law: Appeal and Error. The review of constitutional 

standards is a question of law and is reviewed independently of the trial 

court’s determination.

3. Motions for New Trial: Judges: Words and Phrases: Appeal and 

Error. An appellate court reviews the denial of a motion for new trial 

or, in the alternative, to alter or amend the judgment, for an abuse of 

discretion. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant 

of a substantial right and denying just results in matters submitted 

for disposition.

4. Constitutional Law: Jury Trials: Equity. Article I, § 6, of the Nebraska 

Constitution preserves the right to a jury trial as it existed under the 

common law when the Nebraska Constitution was adopted in 1875. At 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/20/2022 01:07 AM CDT
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common law, legal claims were tried by a jury and equitable claims 

were tried by a court.

5. Claims: Jury Trials: Equity. In Nebraska, it is well established that 

litigants are typically entitled to a jury trial on legal claims, but not 

equitable claims.

6. Constitutional Law: Statutes: Actions: Jury Trials: Equity. Pursuant 

to the Nebraska Constitution and statutes, the courts have traditionally 

denied jury trials in equitable actions and provided them as a matter of 

right in legal actions.

7. Actions: Pleadings: Equity. The essential character of a cause of action 

and the remedy or relief it seeks as shown by the allegations of the petition determine whether a particular action is one at law to be tried to a 

jury or in equity to be tried to a court.

8. ____: ____: ____. The nature of an action, whether legal or equitable, 

is determinable from its main object, as disclosed by the averments of 

the pleadings and the relief sought. This determination is unaffected by 

the conclusions of the pleader or whether or not the pleader denominates 

the case as one at law or in equity.

9. Jurisdiction: Equity. If a court of equity has properly acquired jurisdiction of a suit for equitable relief, it may make complete adjudication 

of all matters properly presented and involved in the case and grant 

relief, legal or equitable, as may be required and thus avoid unnecessary 

litigation.

10. Actions: Jury Trials: Equity. Under the equitable cleanup doctrine, 

when a cause of action for equitable relief is stated, and when the plaintiff prays for equitable relief, a jury trial cannot be demanded as a matter 

of right by the defendant. This is true even if the defendant pleads legal 

defenses or files a counterclaim for damages in response to the plaintiff’s equitable cause of action.

11. Constitutional Law: Jury Trials: Equity. Neb. Const. art. I, § 6, preserves the right to a jury trial as it existed under the common law when 

the Nebraska Constitution was adopted. It does not create or extend such 

right. At common law, litigants did not have a right to a jury trial in 

equitable actions.

12. ____: ____: ____. It does not offend the Nebraska Constitution to deny 

a jury trial when the main object of a civil action is equitable, even 

when a defendant raises legal counterclaims in response to the plaintiff’s 

equitable action.

13. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.
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14. Actions: Pleadings: Notice. Nebraska is a notice pleading jurisdiction, 

and civil actions are controlled by a liberal pleading regime. A party is 

required to set forth only a short and plain statement of the claim showing the pleader’s entitlement 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. The rationale for this liberal notice pleading standard 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.

15. Rules of the Supreme Court: Trial: Pleadings: Implied Consent. To 

determine whether an issue was tried by the express or implied consent 

of the parties under Neb. Ct. R. Pldg. § 6-1115(b), the key inquiry is 

whether the parties recognized that an issue not presented by the pleadings entered the case at trial.

16. ____: ____: ____: ____. Implied consent for purposes of Neb. Ct. R. 

Pldg. § 6-1115(b) may arise in two situations: First, the claim may be 

introduced outside of the complaint—in another pleading or document—

and then treated by the opposing party as if pleaded. Second, consent 

may be implied if during the trial the party acquiesces or fails to object 

to the introduction of evidence that relates only to that issue.

17. ____: ____: ____: ____. For purposes of Neb. Ct. R. Pldg. § 6-1115(b), 

implied consent may not be found if the opposing party did not recognize that new matters were at issue during the trial. A court will not 

imply consent to try a claim merely because evidence relevant to a properly pleaded issue incidentally tends to establish an unpleaded claim.

18. Corporations: Courts: Judgments. Neb. Rev. Stat. § 21-147(b) (Cum. 

Supp. 2020) affords a court discretion to order a remedy other than dissolution, but it does not require the court to exercise that discretion.

Appeal from the District Court for Cherry County: Mark D. 

Kozisek, Judge. Affirmed.

Bartholomew L. McLeay and Dwyer Arce, of Kutak Rock, 

L.L.P., for appellants.

Michael C. Cox, John V. Matson, Quinn R. Eaton, and 

Cassandra M. Langstaff, of Koley Jessen, P.C., L.L.O., for 

appellee Lanny Schmid.

Eric A. Scott for appellee MAR14, LLC.
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Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ., and Weimer, District Judge.

Stacy, J.

This appeal arises from a dispute involving a limited liability company (LLC) and its members. After a bench trial, the 

district court entered a judgment which ordered an accounting, 

declared the membership rights of the parties, quieted title to 

certain real estate, and established a resulting trust; all other 

requested relief was denied. One member of the LLC appealed, 

assigning error to the district court’s denial of a request for a 

jury trial on its legal counterclaims. The LLC cross-appealed, 

assigning error to the court’s denial of a request to dissociate 

one of the members. Finding no merit to the assigned errors, 

we affirm.

I. BACKGROUND

In 2014, Lanny Schmid and Lee Simmons pooled their 

money with others to bid on certain tracts of land being sold at 

public auction, including 560 acres near Valentine, Nebraska, 

which the parties refer to as the “Canyon Rim” land. The collective bid was successful. Only the Canyon Rim tract is rele

vant to this appeal.

Schmid did not attend the closing for the Canyon Rim 

land, but on the day of closing, he transferred $600,000 to an 

account operated by Niobrara River Ranch, L.L.C. (NRR). 

NRR is a trade name that Simmons uses for some of his business ventures, and the account into which Schmid transferred 

the funds is owned and controlled by Simmons. The reason for 

Schmid’s transfer is disputed, but it appears Simmons used the 

$600,000, along with other funds, to close on the land acquired 

by the parties. The deed to the Canyon Rim land was titled in 

the name “MAR14, LLC” (MAR14).

MAR14 is a member-managed limited liability company, 

and its only members are Simmons, Schmid, and Thomas 

Masters. Its operating agreement states that “this Company 

is formed to purchase land, transfer it and manage it.” The 
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operating agreement requires unanimous consent of all members for certain matters, including property transfers. The 

record shows that Simmons initially created MAR14 to take 

title to another tract of land and to serve as a tax-planning 

vehicle for other properties.

After closing on the Canyon Rim land, Simmons and Schmid 

considered building cabins on the property, subdividing the 

property, and selling the property. But roughly 2 years after 

acquiring the land, the parties’ communications regarding the 

Canyon Rim land stalled.

In May 2016, Schmid sent Simmons an email proposing that 

they divide ownership of the Canyon Rim land. Schmid suggested that 320 acres of the Canyon Rim land be titled in his 

name and that the remaining 240 acres be titled in Simmons’ 

name. Simmons did not accept the proposal. About 2 months 

later, in July 2016, Schmid sent Simmons a demand letter 

requesting, among other things, a full accounting of MAR14’s 

activities, an accounting of his $600,000 transfer, and an explanation for why title to certain property was transferred from 

MAR14 to another entity without unanimous approval from all 

MAR14 members. Simmons’ attorney responded to this letter, 

but no resolution was reached.

1. Lawsuit

Shortly thereafter, Schmid filed a lawsuit against Simmons, 

MAR14, and NRR in the district court for Cherry County, 

Nebraska. In an amended complaint, Schmid added the third 

member of MAR14, Masters, as a defendant. Schmid’s operative amended complaint sought (1) to quiet title to a specific 

parcel of land acquired in the auction and to eject Simmons 

from the parcel, (2) a declaratory judgment determining the 

MAR14 members’ percentage of ownership, (3) an accounting 

from MAR14, (4) judicial dissolution of MAR14, and (5) any 

other relief the court deemed just and equitable.

Simmons and NRR filed a joint answer, generally denying 

that Schmid was entitled to the relief sought and disputing 

the nature of Schmid’s $600,000 transfer. Their answer also 
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alleged several counterclaims, including claims for (1) a resulting trust, (2) a decree quieting title, and (3) an accounting/action 

for assumpsit.

MAR14 filed its own answer to Schmid’s operative complaint and generally denied that Schmid was entitled to have 

MAR14 judicially dissolved. MAR14 also counterclaimed, 

seeking a “judicial determination and declaration concerning” 

Schmid’s membership status in MAR14, costs of its action, 

and other equitable relief. Masters filed an answer in which 

he denied making any capital contribution to MAR14 and disclaimed any interest in the real estate held by MAR14.

2. Telephonic Progression Conference

In February 2017, the presiding judge held a telephonic 

conference with the parties’ counsel. The bill of exceptions 

does not include that conference, but our transcript includes a 

signed and file-stamped progression order which memorialized 

the conference. The progression order states the conference 

occurred in “Judge’s chambers at Ainsworth, Nebraska, by 

telephone conference call” and also states, “The parties agreed 

the matter was equitable and would be tried to the court without a jury.”

3. Simmons and NRR Amend Answer to Add 

Counterclaim and Make Jury Demand

In December 2017, Simmons and NRR amended their answer 

to include a counterclaim for “Breach of Contract/Estoppel.” 

The counterclaim sought to recover lost profits and demanded 

a jury trial on “any and all issues or claims triable by right 

under the Nebraska Constitution or Nebraska statutes.”

Schmid moved to strike the jury demand from the amended 

answer, and the court granted that motion. In addition to 

noting that the parties agreed, during the progression conference, that the matter was equitable in nature and would 

be tried to the court, the court’s order stated that Simmons, 

Masters, MAR14, and NRR were not entitled to a jury trial. 
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It relied on Kuhlman v. Cargile 1 for the proposition that 

“when a court of equity acquires jurisdiction over a cause 

for any purpose it may retain the cause for all purposes and 

proceed to a final determination on all matters put in issue in 

the case.” This rule is sometimes referred to as the “equitable 

clean-up” doctrine. 2

The court subsequently issued a final pretrial order which 

stated that “the pleadings adequately state the issues to be 

tried,” and it confirmed that “[t]he matter shall be tried to the 

court without a jury.” Simmons and NRR objected to that portion of the pretrial order which required a trial to the bench on 

their legal counterclaims, but the court overruled the objection 

and declined to reconsider its prior ruling. Simmons and NRR 

renewed their jury demand at the start of the bench trial, and 

the court again overruled their objection.

During the 4-day bench trial, the parties adduced evidence 

on all disputed issues. We summarize only that evidence which 

is pertinent to the assignments of error on appeal.

Schmid testified that he was a financial member of MAR14 

and that his $600,000 transfer was a capital contribution to the 

LLC. Schmid believed MAR14’s purpose was to acquire and 

manage agricultural land. Schmid testified that MAR14 refused 

to provide him an accounting of revenues and expenses and 

denied his right to authorize transfers, receive revenue, and 

participate in its operation and management. Schmid wanted 

MAR14 to be judicially dissolved because he and Simmons 

were unable to agree on the membership status of the MAR14 

members, the percentage of ownership of any member, the 

distributions to be made, or how to conduct the business and 

operations of MAR14. According to Schmid, MAR14 was 

“hopelessly deadlocked” and it was “not reasonably practical to 

carry on MAR14’s activities in conformity with the certificate 

of organization of MAR14 and the operating agreement.”

1 Kuhlman v. Cargile, 200 Neb. 150, 156, 262 N.W.2d 454, 458 (1978).

2 See John P. Lenich, Nebraska Civil Procedure §§ 29:9 and 29:10 (2021). 

See, also, 27A Am. Jur. 2d Equity § 103 (2019).
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Simmons testified that he was MAR14’s only “financial” 

member. He described Schmid’s $600,000 transfer to MAR14 

as an investment in Canyon Rim and the parties’ collective 

plans for that land, rather than a capital contribution to MAR14. 

He also testified that after making initial capital contributions, 

neither Schmid nor Masters contributed additional capital to 

MAR14. Simmons testified that he formed MAR14 to facilitate certain property exchanges, and he believed Schmid was 

hindering that purpose.

During closing argument, Schmid’s attorney urged the court 

to judicially dissolve MAR14. The attorney also suggested to 

the court that it had discretion to pursue other equitable alternatives if it deemed dissolution inappropriate, but Schmid did 

not ask the court to dissociate any member from MAR14.

When presenting closing arguments on behalf of Simmons 

and NRR, counsel expressly asked the court, for the first time, 

to consider using its equitable powers and authority under Neb. 

Rev. Stat. § 21-147(b) (Cum. Supp. 2020) to dissociate Schmid 

from MAR14. Later, MAR14 submitted a posttrial brief in 

which it asked, for the first time, to have Schmid dissociated. 

This brief is not in our appellate record.

4. Judgment

On May 27, 2020, the district court entered judgment denying Schmid’s claims for quiet title and ejectment, but granting 

Schmid’s claims for an accounting and declaratory judgment. 

After determining that Schmid intended his $600,000 to be used 

to purchase the Canyon Rim land, the court declared Schmid 

to be the owner of an undivided 53.57 percent interest in the 

Canyon Rim land. It ordered MAR14 to convey that undivided 

interest to Schmid. The court effectively denied Schmid’s dissolution claim, reasoning that its resolution of the other issues 

“removes the necessity of dissolving [MAR14].”

The court granted Simmons and NRR’s request for a resulting trust and to quiet title to certain land, but it denied their 

counterclaims for an accounting, assumpsit, reimbursement, 
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and breach of contract/estoppel. On MAR14’s counterclaim for 

declaratory judgment regarding Schmid’s membership status, 

the court found that “Schmid is not a financial/economic member” of MAR14. The court’s judgment did not expressly rule 

on the requests made during closing argument to dissociate 

Schmid from MAR14, but it did state that “[a]ny other claims 

for relief by any party, expressed or implied, are denied and 

dismissed with prejudice.”

5. Motion to Alter or Amend

MAR14 filed a timely motion to alter or amend the judgment, asking the district court to expressly rule on, and grant, 

its request to dissociate Schmid from MAR14. The court overruled MAR14’s motion, reasoning the request to dissociate was 

not properly before the court, because it was not presented in 

the pleadings, and instead was raised for the first time in closing argument.

Simmons and NRR filed this timely appeal, and MAR14 

cross-appealed. Simmons and NRR challenge the denial of a 

jury trial on their legal counterclaims. Among other things, 

they argue that the equitable cleanup doctrine, relied upon by 

the trial court to deny their jury demand, has been abrogated 

in Nebraska. Alternatively, they argue the doctrine should 

be abandoned. We granted bypass to consider the continued 

viability of the equitable cleanup doctrine in Nebraska.

II. ASSIGNMENTS OF ERROR

Simmons and NRR assign that the district court erred in denying their demand for a jury trial on their legal counterclaims.

On cross-appeal, MAR14 assigns that the district court erred 

in failing to “rule on Schmid’s [membership] status . . . and 

order Schmid’s dissociation” from MAR14. For the sake of 

completeness, we note that MAR14 also assigned error to the 

court’s refusal to cancel a lis pendens filed on MAR14’s property, but it has since abandoned that assignment, so this opinion 

will not further address it.
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III. STANDARD OF REVIEW

[1] On appeal from the bench trial of an equity action, the 

standard of review is de novo on the record and the court must 

resolve questions of law and fact independently of the trial 

court’s determinations. 3 When the evidence is in conflict, the 

appellate court considers and may give weight to the fact that 

the trial court observed the witnesses and accepted one version 

of the facts over another. 4

[2] The review of constitutional standards is a question 

of law and is reviewed independently of the trial court’s 

determination. 5

[3] An appellate court reviews the denial of a motion for 

new trial or, in the alternative, to alter or amend the judgment, 

for an abuse of discretion. 6 A judicial abuse of discretion exists 

if the reasons or rulings of a trial judge are clearly untenable, 

unfairly depriving a litigant of a substantial right and denying 

just results in matters submitted for disposition. 7

IV. ANALYSIS

On appeal, Simmons and NRR contend they were entitled to 

a jury trial on their legal counterclaims and the district court 

erred in denying them that right. They argue the court erroneously relied on the equitable cleanup doctrine, which they 

contend was effectively abrogated by our analysis in Jacobson 

v. Shresta.

 8 Alternatively, they urge this court to abandon the 

doctrine now. We begin our analysis of these arguments by 

reviewing Nebraska law pertaining to the right to a jury trial 

in civil cases.

3 Benjamin v. Bierman, 305 Neb. 879, 943 N.W.2d 283 (2020).

4 Id.

5 In re Interest of Zoie H., 304 Neb. 868, 937 N.W.2d 801 (2020).

6 AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212 

(2020).

7 Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020).

8 Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).
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1. Civil Right to Jury Trial and 

Equitable Cleanup Doctrine

In their appellate briefing, Simmons and NRR focus on 

the right to a civil jury trial as guaranteed by the Nebraska 

Constitution. We limit our analysis accordingly.

[4] Article I, § 6, of the Nebraska Constitution provides:

The right of trial by jury shall remain inviolate, but the 

Legislature may authorize trial by a jury of a less number 

than twelve in courts inferior to the District Court, and 

may by general law authorize a verdict in civil cases in 

any court by not less than five-sixths of the jury.

We have long held that this constitutional provision preserves 

the right to a jury trial as it existed under the common law 

when the Nebraska Constitution was adopted in 1875. 9 At common law, legal claims were tried by a jury and equitable claims 

were tried by a court. 10

[5-8] Under Nebraska statute, “[i]ssues of fact arising in 

actions for the recovery of money or of specific real or personal property, shall be tried by a jury unless a jury trial is 

waived . . . .” 11 Thus, in Nebraska, it is well established that 

litigants are typically entitled to a jury trial on legal claims, but 

not equitable claims. 12 As we have explained:

Pursuant to the Nebraska Constitution and statutes, this 

court has traditionally denied jury trials in equitable 

actions and provided them as a matter of right in legal 

actions. . . .

The essential character of a cause of action and the 

remedy or relief it seeks as shown by the allegations 

9 Id.

10 Id.

11 Neb. Rev. Stat. § 25-1104 (Reissue 2016).

12 See State ex rel. Cherry v. Burns, 258 Neb. 216, 602 N.W.2d 477 (1999). 

See, also, Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 

N.W.2d 848 (2010), disapproved on other grounds, Hossaini v. Vaelizadeh, 

283 Neb. 369, 808 N.W.2d 867 (2012).
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of the petition determine whether a particular action is 

one at law to be tried to a jury or in equity to be tried to a 

court. . . . The nature of an action, whether legal or equitable, is determinable from its main object, as disclosed 

by the averments of the pleadings and the relief sought. 

This determination is unaffected by the conclusions of 

the pleader or whether or not the pleader denominates the 

case as one at law or in equity. 13

[9] Moreover, we have consistently held that if a court of 

equity has properly acquired jurisdiction of a suit for equitable 

relief, it may make complete adjudication of all matters properly presented and involved in the case and grant relief, legal 

or equitable, as may be required and thus avoid unnecessary 

litigation. 14 The historical roots and purpose of the doctrine has 

been described by one commentator as follows:

The doctrine traces its roots to the days when there were 

separate equity and law courts. If an equity court acquired 

jurisdiction of a case because of a presence of an equitable claim, the court could adjudicate the entire case even 

though that might involve awarding legal relief. In other 

words, the equity court could grant any equitable relief 

that was warranted and could then clean-up the rest of the 

case by awarding any incidental legal relief that was warranted. The purpose of the doctrine was to avoid multiple 

litigation and to protect plaintiffs from being left without 

a remedy if they initially chose the wrong court. 15

[10] Even after separate equity courts and law courts 

merged, Nebraska has consistently applied the equitable 

cleanup doctrine. 16 Relying on the doctrine, we have long 

13 State ex rel. Cherry, supra note 12, 258 Neb. at 223-24, 602 N.W.2d at 

482-83 (citations omitted).

14 State ex rel. Cherry, supra note 12.

15 See Lenich, supra note 2, § 29:9 at 1232.

16 Lenich, supra note 2.
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said that when a cause of action for equitable relief is stated, 

and when the plaintiff prays for equitable relief, a jury trial 

cannot be demanded as a matter of right by the defendant. 17

This is true even if the defendant pleads legal defenses or 

files a counterclaim for damages in response to the plaintiff’s 

equitable cause of action. 18

Here, the district court relied on the above principles to find 

that Simmons and NRR were not entitled to a jury trial on their 

“Breach of Contract/Estoppel” claim. On this record, we find 

no error with this determination.

The pleadings and relief sought by the parties reveal that 

this action was primarily equitable in nature. The parties do 

not dispute that Schmid’s claims sounded in equity, 19 as did 

most of Simmons and NRR’s counterclaims. 20 Simmons and 

NRR argue they raised legal counterclaims in their operative 

amended answer, 21 but we do not understand them to dispute 

that the “main object” 22 of this action was equitable. Thus, 

17 Kuhlman, supra note 1.

18 Id.

19 See, Burnett v. Maddocks, 294 Neb. 152, 881 N.W.2d 185 (2016) 

(recognizing action to quiet title sounds in equity); Robertson v. Jacobs 

Cattle Co., 285 Neb. 859, 830 N.W.2d 191 (2013) (action for partnership 

dissolution and accounting sounds in equity); Detter v. Miracle Hills 

Animal Hosp., 269 Neb. 164, 691 N.W.2d 107 (2005) (action for corporate 

dissolution sounds in equity); Lone Cedar Ranches v. Jandebeur, 246 Neb. 

769, 772, 523 N.W.2d 364, 368 (1994) (explaining that whether to treat 

declaratory judgment action as one in law or equity depends on nature 

of dispute and that accounting can be an equitable remedy when action 

involves “a complicated series of accounts”).

20 See, Burnett, supra note 19 (quiet title action sounds in equity); Brtek v. 

Cihal, 245 Neb. 756, 515 N.W.2d 628 (1994) (actions to impose resulting 

trust sound in equity).

21 See, Goes v. Vogler, 304 Neb. 848, 937 N.W.2d 190 (2020) (action for 

breach of contract is action at law); Kissinger v. Genetic Eval. Ctr., 260 

Neb. 431, 618 N.W.2d 429 (2000) (assumpsit is action at law).

22 State ex rel. Cherry, supra note 12, 258 Neb. at 223, 602 N.W.2d at 482.
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because the district court properly acquired equitable jurisdiction over the suit, Simmons and NRR were not entitled to 

demand a jury trial on their legal counterclaims as a matter of 

right. Under the equitable cleanup doctrine, the district court 

was permitted to make complete adjudication of all matters 

properly presented to it and to grant either legal or equitable relief. 23

2. Has Equitable Cleanup 

Doctrine Been Abrogated?

Simmons and NRR’s primary argument on appeal is that 

the equitable cleanup doctrine was abrogated by this court in 

Jacobson v. Shresta 24 and that thus, the district court should 

not have relied on it. Jacobson involved a medical malpractice suit, and the issue was whether the plaintiff waived the 

right to jury trial “by failing to object to a defendant’s motion 

for a bench trial before the court sustain[ed] the motion.” 25

The appeal was originally docketed with the Nebraska Court 

of Appeals, which held that under such circumstances, there 

was a valid jury waiver. But we disagreed on further review, 

explaining that jury waivers are “statutorily governed by 

§ 25-1126.” 26 Neb. Rev. Stat. § 25-1126 (Cum. Supp. 2020) 

provides:

The trial by jury may be waived by the parties in 

actions arising on contract and with assent of the court in 

other actions (1) by the consent of the party appearing, 

when the other party fails to appear at the trial by himself 

or herself or by attorney, (2) by written consent, in person 

or by attorney, filed with the clerk, and (3) by oral consent in open court entered upon the record.

23 State ex rel. Cherry, supra note 12.

24 Jacobson, supra note 8.

25 Id. at 620, 849 N.W.2d at 519.

26 Id. at 623, 849 N.W.2d at 521.
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Jacobson explained that “unless a party’s conduct falls into one 

of § 25-1126’s three categories, we will not find a waiver of a 

constitutional right.” 27

Thus, Jacobson clarified the circumstances under which a 

court can find that a party has validly waived the right to a 

jury trial. But Jacobson has no bearing on the applicability 

of the equitable cleanup doctrine. It is axiomatic that a party 

must be entitled to a jury trial before they can validly waive 

that right. And as we have already explained, it is well established in Nebraska that when a cause of action for equitable 

relief is stated, and when the plaintiff prays for equitable relief, 

a jury trial cannot be demanded as a matter of right by the 

defendant, even when the defendant raises legal counterclaims 

or defenses in response to the plaintiff’s equitable cause of 

action. 28 Nothing in Jacobson purports to alter the applicability of the equitable cleanup doctrine, and we expressly 

reject Simmons and NRR’s suggestion that Jacobson abrogated 

the doctrine.

3. Should Doctrine Be Abandoned?

Alternatively, Simmons and NRR argue that even if Jacobson

did not abrogate the equitable cleanup doctrine, this court 

should nevertheless abandon the doctrine. They suggest that 

the doctrine is either unconstitutional or “serves no purpose in 

Nebraska today.” 29

[11,12] As an initial matter, we reject Simmons and NRR’s 

suggestion that the doctrine is unconstitutional. As already 

explained, Neb. Const. art. I, § 6, preserves the right to a jury 

trial as it existed under the common law when the Nebraska 

Constitution was adopted. 30 It does not create or extend 

27 Id.

28 Kuhlman, supra note 1.

29 Brief for appellants at 29.

30 Jacobson, supra note 8.
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such right. 31 At common law, litigants did not have a right to 

a jury trial in equitable actions. 32 And as already explained, 

it is a basic and long-established principle of Nebraska’s 

equity jurisprudence that where a court of equity has properly 

acquired jurisdiction in a suit for equitable relief, it will make 

a complete adjudication of all matters properly presented and 

involved in the case and ordinarily will grant such relief, legal 

or equitable, as may be required and thus avoid unnecessary 

litigation. 33 Thus, it does not offend the Nebraska Constitution 

to deny a jury trial when the main object of a civil action is 

equitable, even when a defendant raises legal counterclaims in 

response to the plaintiff’s equitable action. 34

We also disagree with Simmons and NRR’s suggestion that 

the equitable cleanup doctrine serves no purpose in Nebraska 

today. The primary purpose of the doctrine is to promote 

judicial efficiency in adjudicating cases, by allowing courts 

tasked with adjudicating actions which are primarily equitable 

in nature to hear and resolve all claims presented in those 

actions. 35 Simmons and NRR have not suggested the doctrine 

can no longer achieve this purpose, and they have offered no 

principled reason to abrogate a doctrine which we have followed for more than a century.

31 Sharmer v. Johnson, 43 Neb. 509, 61 N.W. 727 (1895).

32 See, Jacobson, supra note 8; Sharmer, supra note 31. See, also, Krumm 

v. Pillard, 104 Neb. 335, 338-39, 177 N.W. 171, 172 (1920) (“[w]hen 

the action is one purely legal in its nature, the rule is that either party 

ordinarily, as a matter of right, is entitled to demand a jury trial. . . . When 

the cause is for equitable relief, a jury cannot be demanded as a matter of 

right by either party to try any issue arising in the case”); State v. Moores, 

56 Neb. 1, 8, 76 N.W. 530, 532 (1898) (“[t]he right of trial by jury, at 

common law, never existed in equitable proceedings”).

33 Sechovec v. Harms, 187 Neb. 70, 187 N.W.2d 296 (1971).

34 See Kuhlman, supra note 1.

35 See State ex rel. Cherry, supra note 12.
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We are aware that some states have chosen to limit or abandon similar doctrines. 36 Here, however, Simons and NRR have 

not presented any compelling reason to abandon or modify the 

doctrine’s application in Nebraska.

The equitable cleanup doctrine is still good law in Nebraska, 

and the district court did not err in relying on it to deny 

Simmons and NRR’s jury demand on their legal counterclaims. 

Simmons and NRR’s lone assignment of error is meritless.

4. Waiver of Jury

[13] For the sake of completeness, we note that the parties devote substantial briefing to whether Simmons and NRR 

validly waived the right to a jury trial under § 25-1126 at the 

February 2017 telephonic conference. Because we have concluded that Simmons and NRR were not entitled to a jury trial 

on their legal counterclaims in the first instance, we need not 

reach the issue of whether they validly waived a jury under one 

of the enumerated methods in § 25-1126. An appellate court is 

not obligated to engage in an analysis that is not necessary to 

adjudicate the case and controversy before it. 37

5. Cross-Appeal

On cross-appeal, MAR14 assigns error to the district court’s 

“fail[ure] to rule on Schmid’s [membership] status . . . and 

order Schmid’s dissociation” from MAR14. As explained 

below, we find this assignment of error to be without merit.

We begin by noting that as part of its assignment of 

error, MAR14 contends the court erred in failing to “rule on 

Schmid’s [membership] status.” But the record belies this 

36 See, e.g., State ex rel. Leonardi v. Sherry, 137 S.W.3d 462, 474 (Mo. 2004) 

(narrowing application of equitable cleanup doctrine, explaining that 

“[i]n some situations, the practical and efficient trial of a case may require 

limited incidental claims at law to be tried to the court in connection with 

equitable matters” but stating that “[t]rying incidental claims at law to the 

court . . . should be the exception and not the rule”).

37 Gonzales v. Nebraska Pediatric Practice, 308 Neb. 571, 955 N.W.2d 696 

(2021).
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contention. In its written judgment, the court ruled that Schmid 

is not a financial/economic member of MAR14. Thus, the 

court did issue a ruling on Schmid’s membership status, and to 

the extent MAR14 suggests otherwise, it is mistaken.

The primary thrust of MAR14’s cross-appeal is not that the 

court failed to rule on Schmid’s membership status, but, rather, 

that it failed to order Schmid’s dissociation from MAR14. 

MAR14 makes three arguments in support of this contention: 

(1) The court should have ruled on Schmid’s dissociation, 

because MAR14 raised this issue in its pleadings; (2) even if 

it was not raised in the pleadings, the court should have ruled 

on Schmid’s dissociation, because the parties tried the issue 

by consent; and (3) the court had authority under § 21-147(b) 

to order Schmid’s dissociation and should have exercised that 

authority. We address each argument in turn.

(a) Was Dissociation Sufficiently Pled?

MAR14 contends the district court should have ruled on its 

request to dissociate Schmid, because this issue was raised in 

the pleadings. The record does not support this contention.

[14] Nebraska is a notice pleading jurisdiction, and civil 

actions are controlled by a liberal pleading regime. 38 A party 

is required to set forth only a short and plain statement of the 

claim showing the pleader’s entitlement 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. 39

The rationale for this liberal notice pleading standard 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. 40

38 Tryon v. City of North Platte, 295 Neb. 706, 890 N.W.2d 784 (2017).

39 AVG Partners I, supra note 6. See, also, Haffke v. Signal 88, 306 Neb. 

625, 643, 947 N.W.2d 103, 117 (2020) (“the touchstone is whether fair 

notice was provided”); Neb. Ct. R. Pldg. § 6-1108.

40 Tryon, supra note 38.
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Even under Nebraska’s liberal pleading regime, we cannot 

find the issue of Schmid’s dissociation was raised in any of the 

pleadings in this case or in the court’s pretrial order. No party 

requested that Schmid be dissociated from MAR14, nor did 

any party allege that Schmid engaged in any activities which 

would merit his dissociation from the LLC. And we reject as 

meritless MAR14’s suggestion that by seeking a judicial declaration regarding Schmid’s “membership status,” it also placed 

Schmid’s dissociation from MAR14 at issue.

(b) Was Dissociation Tried by Consent?

MAR14 next argues that even if the issue of Schmid’s dissociation was not raised in the pleadings, the parties tried the 

issue by consent. Again, we disagree.

[15,16] Neb. Ct. R. Pldg. § 6-1115(b) provides that when 

issues not raised by the pleadings have been tried by the 

express or implied consent of the parties, they shall be treated 

in all respects as if they had been raised in the pleadings. 41 To 

determine whether an issue was tried by the express or implied 

consent of the parties under § 6-1115(b), the key inquiry is 

whether the parties recognized that an issue not presented 

by the pleadings entered the case at trial. 42 We have said that 

implied consent for purposes of § 6-1115(b) may arise in two 

situations:

First, the claim may be introduced outside of the complaint—in another pleading or document—and then 

treated by the opposing party as if pleaded. Second, 

consent may be implied if during the trial the party acquiesces or fails to object to the introduction of evidence that 

relates only to that issue. 43

41 See United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196 

(2015).

42 Id.

43 Id. at 1028, 858 N.W.2d at 216, quoting Blinn v. Beatrice Community 

Hosp. & Health Ctr., 270 Neb. 809, 708 N.W.2d 235 (2006) (internal 

quotation marks omitted).
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[17] Implied consent may not be found if the opposing party 

did not recognize that new matters were at issue during the 

trial. 44 A court will not imply consent to try a claim merely 

because evidence relevant to a properly pleaded issue incidentally tends to establish an unpleaded claim. 45

The record in this case does not support MAR14’s argument that the issue of dissociation was tried by consent of the 

parties. Notably, the issue of Schmid’s dissociation was raised 

for the first time during closing argument, after all parties had 

rested. We see nothing in the record suggesting that “during the 

trial,” Schmid “acquiesce[d] or fail[ed] to object to the introduction of evidence that relates only to [the issue of Schmid’s 

dissociation].” 46 While there was some testimony that the members of MAR14 were “hopelessly deadlocked” and that Schmid 

and Simmons did not see eye-to-eye on MAR14’s operations, 

this evidence was relevant to Schmid’s judicial dissolution 

claim. Thus, on this record, we cannot find that Schmid should 

have recognized that his dissociation from MAR14 was being 

placed at issue during trial. We reject MAR14’s claim that the 

parties tried the issue of Schmid’s dissociation by consent.

(c) Dissociation Under § 21-147(b)

[18] Finally, MAR14 contends the court had authority under 

§ 21-147(b) to dissociate Schmid from MAR14 and erred in 

refusing to exercise that authority. Section 21-147(b) provides, 

“In a proceeding brought under subdivision (a)(5) of this section, the court may order a remedy other than dissolution.” This 

statutory language affords a court discretion to order a remedy 

other than dissolution, but it does not require the court to 

exercise that discretion. Nor was the court, under § 21-147(b), 

required to order dissociation of a member in the event it found 

dissolution to be inappropriate.

44 United Gen. Title Ins. Co., supra note 41.

45 Id.

46 See id. at 1028, 858 N.W.2d at 216, quoting Blinn, supra note 43 (internal 

quotation marks omitted).
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Thus, the question here is whether the district court abused 

its discretion in failing to order Schmid’s dissociation from 

MAR14 as an alternative remedy to dissolution. A judicial 

abuse of discretion exists if the reasons or rulings of a trial 

judge are clearly untenable, unfairly depriving a litigant of a 

substantial right and denying just results in matters submitted 

for disposition. 47

On this record, we cannot find the court abused its discretion in failing to dissociate Schmid from MAR14. The issue 

of dissociation was not mentioned by any party until closing 

arguments in the case, and MAR14’s request for dissociation, 

raised only in a posttrial brief, does not even appear in our 

record. Even assuming that facts exist to support Schmid’s 

dissociation—an issue on which we express no opinion—we 

cannot find the district court abused its discretion in failing to 

order dissociation as an alternative remedy to dissolution when 

this issue was not expressly litigated at trial. For the same reason, we cannot find the district court abused its discretion in 

failing to alter or amend the judgment to order Schmid’s dissociation. MAR14’s assignment of error is without merit.

V. CONCLUSION

For all of the reasons stated, we affirm.

Affirmed.

Miller-Lerman, J., not participating.

47 Dycus, supra note 7.