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Nebraska Supreme Court Advance Sheets

314 Nebraska Reports

NP DODGE MGMT. CO. V. HOLCOM

Cite as 314 Neb. 748

NP Dodge Management Company, appellee,

v. Teresa Holcomb, appellant.

___ N.W.2d ___

Filed July 21, 2023. No. S-22-272.

1. Moot Question: Jurisdiction: Appeal and Error. Because mootness is 

a justiciability doctrine that operates to prevent courts from exercising 

jurisdiction, an appellate court reviews mootness determinations under 

the same standard of review as other jurisdictional questions.

2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional 

question does not involve a factual dispute, its determination is a matter 

of law, which requires an appellate court to reach a conclusion independent of the decisions made by lower courts.

3. Moot Question: Words and Phrases. A case is moot if the facts underlying the dispute have changed, such that the issues presented are no 

longer alive.

4. Moot Question. The central question in a mootness analysis is whether 

changes in circumstances that prevailed at the beginning of litigation 

have forestalled any occasion for meaningful relief.

5. Moot Question: Appeal and Error. The public interest exception to the 

mootness doctrine requires an appellate court to consider (1) the public 

or private nature of the question presented, (2) the desirability of an 

authoritative adjudication for guidance of public officials, and (3) the 

likelihood of recurrence of the same or a similar problem.

Appeal from the District Court for Douglas County, J. 

Michael Coffey, Judge, on appeal thereto from the County 

Court for Douglas County, Darryl R. Lowe, Judge. Appeal 

dismissed.

Caitlin Cedfeldt, of Legal Aid of Nebraska, and Kasey D. 

Ogle, of Nebraska Appleseed Center for Law in the Public 

Interest, for appellant.

Nebraska Supreme Court Online Library

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

07/21/2023 09:07 AM CDT
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Andrew J. McElmeel, of Goosmann Law Firm, P.L.C., and 

Gene M. Eckel and Tara E. Holterhaus, of Spencer Fane, 

L.L.P., for appellee.

Lindsay R. Belmont, of Koenig | Dunne, P.C., L.L.O., for 

amicus curiae National Housing Law Project.

Russell E. Lovell II, for amicus curiae Iowa-Nebraska 

NAACP, and Rebecca Scout Richters for amicus curiae ACLU 

Foundation of Nebraska.

Kevin Ruser, Ryan P. Sullivan, Rachel Tomlinson Dick, and 

Alan Dugger for amicus curiae University of Nebraska College 

of Law Civil Clinical Law Program.

Douglas J. Peterson, Attorney General, James A. Campbell, 

and Christian Edmonds for amicus curiae Attorney General.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Per Curiam.

When Teresa Holcomb allegedly breached the terms of her 

residential lease agreement, her landlord, NP Dodge Manage

ment Company (NP Dodge), terminated the lease. Holcomb 

did not leave the property, and NP Dodge initiated eviction 

proceedings under Nebraska’s Uniform Residential Landlord 

and Tenant Act (the NURLTA). See Neb. Rev. Stat. § 76-1401 

et seq. (Reissue 2018). Holcomb requested a jury trial. The 

county court denied her request, held a bench trial, found in 

favor of NP Dodge, and ordered restitution of the premises to 

NP Dodge. Holcomb appealed to the district court, but before 

that appeal was decided, the county court issued a writ of restitution, whereby Holcomb was removed from the property. The 

district court later affirmed in all respects.

Holcomb’s principal argument on appeal is that § 76-1446, 

which mandates a bench trial for a possession action under 
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the NURLTA, violates article I, § 6, of the Nebraska Consti

tution, which provides that the “right of trial by jury shall 

remain inviolate.” We find the case is moot and therefore dismiss the appeal.

BACKGROUND

Lease Agreement and Termination.

Holcomb and NP Dodge signed a residential lease agreement in August 2020. The lease was for 1 year and was set 

to expire on July 31, 2021. An addendum to the agreement 

granted NP Dodge the right to terminate the lease if Holcomb 

engaged in illegal activity, acts of violence, or threats of violence. On May 6, Holcomb allegedly threatened two residents 

in the common area of the leased property, and police officers 

responded to the scene. The next day, pursuant to the addendum, NP Dodge served Holcomb a written notice of termination that required her to vacate the premises within 5 days. 

Holcomb did not comply.

Bench Trial.

On May 19, 2021, NP Dodge filed a complaint in county 

court seeking restitution of the premises pursuant to the 

NURLTA. Holcomb denied the allegations in the complaint 

and requested a jury trial. On June 9, the county court denied 

Holcomb’s request and conducted a bench trial. After the bench 

trial, the county court found that Holcomb breached the addendum to the lease agreement and entered judgment in favor of 

NP Dodge. The county court further ordered NP Dodge not to 

execute a writ of restitution, the means by which it could have 

Holcomb removed from the premises, until July 9.

Posttrial Procedural History.

On June 22, 2021, Holcomb filed a notice of appeal to 

the district court. She also filed a motion requesting that the 

county court stay enforcement of the writ of restitution until 

the county court set an appeal bond and Holcomb had an 

opportunity to put up the bond. On July 27, NP Dodge filed a 
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Cite as 314 Neb. 748

praecipe for writ of restitution, which the county court granted 

the next day. A Douglas County constable executed the writ 

and removed Holcomb from the apartment on July 29.

On August 3, 2021, the county court entered an order setting 

a supersedeas bond in the amount of $225, and additionally 

ordering Holcomb to make monthly payments to NP Dodge of 

$225 while the appeal was pending. The county court’s order 

stated that any writ of restitution was to “be recalled” until 

after the deadline by which the supersedeas bond was to be 

paid. The county court judge apparently was unaware that the 

writ of restitution had already been executed.

In her appeal to the district court, Holcomb preserved three 

arguments relevant to this appeal. First, Holcomb argued that 

the county court violated article I, § 6, of the Nebraska 

Constitution by denying her request for a jury trial. Second, 

Holcomb asserted that the county court violated § 76-1447 by 

issuing the writ of restitution prior to setting an appeal bond, 

the payment of which would have stayed execution of the writ 

while the appeal was pending. Third, Holcomb argued that the 

county court violated her constitutional right to due process by 

issuing the writ of restitution without first serving her notice 

that the writ would issue.

The district court rejected each of Holcomb’s arguments. 

Holcomb appealed again and petitioned to bypass the Nebraska 

Court of Appeals. We granted the petition to bypass.

After oral argument in this matter, we directed the parties 

to submit supplemental briefs addressing whether the case had 

become moot and, if so, whether we should address any of the 

issues raised under exceptions to the general rule that moot 

cases are subject to dismissal.

ASSIGNMENTS OF ERROR

Holcomb assigns that the district court erred (1) in affirming the county court’s denial of her request for a jury trial 

contrary to article I, § 6, of the Nebraska Constitution; (2) in 

affirming the county court’s issuance of the writ of restitution 
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prior to setting an appeal bond contrary to § 76-1447; and (3) 

in affirming the county court’s issuance of the writ of restitution without first serving notice to Holcomb, in violation of her 

constitutional right to due process.

STANDARD OF REVIEW

[1,2] Because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, an appellate court reviews mootness determinations under the same 

standard of review as other jurisdictional questions. Weatherly 

v. Cochran, 301 Neb. 426, 918 N.W.2d 868 (2018). When a 

jurisdictional question does not involve a factual dispute, its 

determination is a matter of law, which requires an appellate 

court to reach a conclusion independent of the decisions made 

by lower courts. Id.

ANALYSIS

Mootness.

[3,4] We first confront whether this case is moot given 

that the writ of restitution was executed and Holcomb was 

removed from the apartment. A case is moot if the facts 

underlying the dispute have changed, such that the “issues 

presented are no longer alive.” See Nebuda v. Dodge Cty. 

Sch. Dist. 0062, 290 Neb. 740, 747, 861 N.W.2d 742, 749 

(2015). The central question in a mootness analysis is whether 

changes in circumstances that prevailed at the beginning of 

litigation have forestalled any occasion for meaningful relief. 

Id. Or, as another state supreme court has described mootness, “[a] moot case exists where a judgment rendered by 

the court will have no practical legal effect upon an existing 

controversy because an intervening event renders any grant 

of effectual relief impossible for the reviewing court.” Sloan 

v. Friends of Hunley, Inc., 369 S.C. 20, 26, 630 S.E.2d 474, 

477 (2006).

Holcomb argues in this appeal that she was wrongfully evicted because a court, rather than a jury, found 

that she breached the lease agreement, in violation of her 
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Cite as 314 Neb. 748

constitutional right to a jury trial. She also argues that she 

should have had the opportunity to remain in her apartment 

pending an appeal, but that the county court erred by issuing 

a writ of restitution without giving her the opportunity to stay 

issuance of the writ.

There is no meaningful relief we could provide to remedy 

any errors pertaining to Holcomb’s attempt to stay in her 

apartment pending appeal. Holcomb was removed from her 

apartment prior to the completion of the appellate process. 

Even if we were to find error in that removal, there is nothing 

we can do now that would allow her to stay in her apartment 

pending appeal.

As for Holcomb’s claim that she should have received a 

jury trial, she argues that, if we were to find in her favor 

on that issue, we could grant meaningful relief by vacating 

the prior judgment, ordering that the cause be remanded for 

a jury trial, and awarding her possession of the same or a 

similar unit during the pendency of that jury trial. We disagree such relief would be meaningful. If we were to vacate 

the judgment and remand the cause for a jury trial, we know 

of no reason why NP Dodge would continue to pursue this 

action. An action brought pursuant to the NURLTA determines only whether the plaintiff is entitled to possession. 

See § 76-1446. But, now, about 2 years after Holcomb’s 

departure from the apartment, NP Dodge would have no need 

for a determination that it, rather than Holcomb, is currently 

entitled to possession.

And even if this cause were remanded for a jury trial, NP 

Dodge continued to seek a judgment, and Holcomb prevailed, 

we do not believe the county court could grant relief that 

would have practical legal effect. Although this point is not 

made perfectly clear in Holcomb’s briefing, we presume that 

she takes the position that if she were to prevail in a subsequent jury trial, the county court should award her possession of the apartment or a similar unit going forward. But, 

again, the issue in this action is who is entitled to immediate 
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possession. Back in the summer of 2021, Holcomb could contend that, if NP Dodge’s claim that it was entitled to demand 

that she vacate her apartment lacked merit, she was entitled to 

possession of an apartment. But Holcomb’s lease expired in 

July 2021, and she offers no reason why she would be entitled to possession of the apartment now about 2 years later. 

Because Holcomb has no basis to claim a current right of possession, this issue is moot. See Marshall v. Housing Auth. of 

City of San Antonio, 198 S.W.3d 782 (Tex. 2006) (concluding 

issue of possession in appeal from forcible entry and detainer 

judgment was moot because tenant’s lease had expired and 

she presented no basis for claiming right to possession after 

that date). See, also, Banks v. Housing Auth. of City of 

Omaha, 281 Neb. 67, 795 N.W.2d 632 (2011) (explaining that 

if landlord had continued to pursue forcible entry and detainer 

action after tenant moved out, action would have been found 

to be moot).

[5] That this case is moot does not end the matter, however. 

While a moot case is normally subject to summary dismissal, 

Nebraska recognizes a public interest exception to the mootness doctrine. See Rath v. City of Sutton, 267 Neb. 265, 673 

N.W.2d 869 (2004). The exception requires us to consider 

(1) the public or private nature of the question presented, 

(2) the desirability of an authoritative adjudication for guidance of public officials, and (3) the likelihood of recurrence 

of the same or a similar problem. Id. We separately analyze 

each assignment of error to determine whether to exercise our 

discretion to review the assignment under the public interest 

exception. See id.

Public Interest Exception: Constitutional 

Jury Trial Right.

Both NP Dodge and Holcomb contend that we should 

address Holcomb’s argument that she was entitled to a jury trial 

under the public interest exception to the mootness doctrine. 

The parties’ agreement, however, cannot constrain whether 
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this court will exercise its discretion to address an argument 

under the public interest exception. And, for reasons we will 

explain, we decline to exercise our discretion to address the 

issue in this case.

We do not dispute the public questions that are implicated 

by Holcomb’s argument. Neither can we deny that an authoritative adjudication would benefit trial judges when presented 

with arguments like Holcomb’s. And while it is certainly 

possible that this issue will recur in future cases, future recurrence is not the only thing we consider in evaluating this third 

factor under the public interest exception. Instead, we have 

said that even if a problem is likely to recur, it is generally 

inappropriate for an appellate court to review a moot case 

that does not evade review as a result of a transitory setting. See, e.g., Beachy v. Becerra, 259 Neb. 299, 609 N.W.2d 

648 (2000).

It is not clear to us that this issue inherently evades appellate review. Although Holcomb’s case is moot, there are means 

by which a tenant can stay enforcement of a writ of restitution 

pending appeal. See § 76-1447. Indeed, as discussed above, 

Holcomb attempted to do so in this case. Furthermore, this is 

the only case we are aware of in which a tenant has attempted 

to challenge the bench trial provision of the NURLTA and the 

case was moot by the time it reached this court. We are leery 

of concluding that an issue inherently evades review based on 

a sample size of one.

Our decision on whether to address this issue under the 

public interest exception in this case is also informed by 

another proposition of law: that ordinarily this court will not 

pass upon the constitutionality of legislation absent a need to 

do so in order to properly dispose of an action. See, e.g., State 

ex rel. Wieland v. Beermann, 246 Neb. 808, 523 N.W.2d 518 

(1994). Because this case is subject to dismissal even if we 

were to reach Holcomb’s arguments under the public interest exception, see Rath, supra, we need not pass upon the 
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constitutionality of the NURLTA’s bench trial requirement to 

decide the case.

We acknowledge that this court has in at least one case 

addressed the constitutionality of statutes under the public 

interest exception to the mootness doctrine. See In re Interest 

of Anaya, 276 Neb. 825, 758 N.W.2d 10 (2008). And we need 

not foreclose the possibility that we would find that course 

of action appropriate in a future case. That said, we believe 

constitutional avoidance principles counsel in favor of the 

exercise of caution before passing upon the constitutionality of 

a statute in a case that is moot. That caution and the fact that 

it is not clear that this issue inherently evades appellate review 

lead us to conclude that we should not address the argument 

that the NURLTA’s bench trial provision is unconstitutional in 

this case.

Public Interest Exception: Appeal Bond 

and Notice for Writ of Restitution.

Holcomb assigns two errors in addition to her constitutional 

jury trial argument. Holcomb assigns that the county court 

violated § 76-1447 by issuing the writ of restitution prior 

to setting the appeal bond and that further, the county court 

violated her constitutional right to due process by issuing the 

writ of restitution without first serving her notice that the writ 

would issue. These assignments of error do not warrant review 

under the public interest exception to mootness because both 

are bound up with the peculiar procedural history of this particular case.

Recall that in Holcomb’s second assignment of error, she 

argues that the county court violated § 76-1447 in failing to 

set an appeal bond before it issued the writ of restitution and 

Holcomb was removed from the apartment. It strikes us as 

quite unlikely that the facts of another case would present 

this legal issue for decision. We presume that it is the usual 

practice of county court judges, if aware of a request for an 

appeal bond in an eviction case, to promptly set an appeal bond 
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and thereby allow the appealing party the opportunity to remain 

in his or her residence while the appeal is pending. It appears 

that the appeal bond may not have been set in this case until 

after the writ of restitution issued because the county court 

judge was not previously made aware of Holcomb’s request to 

set an appeal bond. Although the record on appeal contains a 

June 22, 2021, motion to set an appeal bond and stay the writ 

of restitution, there is no indication that motion was set for a 

hearing before the county court judge.

In any event, Holcomb had ample time to ensure that an 

appeal bond was set. When it entered judgment, the county 

court stated that it would not issue a writ of restitution for 30 

days. And even after those 30 days passed, the county court 

did not actually issue a writ of restitution until almost 3 weeks 

later. Even if the county court judge was aware of Holcomb’s 

request during that time and simply failed to act, a writ of 

mandamus may have been available to compel the setting of 

the appeal bond. See In re Smitherman, 533 S.W.3d 907 (Tex. 

App. 2017). Cf. State v. Kloke, 78 Neb. 133, 110 N.W. 687 

(1907). Because we doubt that future courts will fail to set 

an appeal bond when asked or that future litigants will fail to 

avail themselves of all legal avenues to avoid an impending 

eviction, we find this issue is unlikely to recur and therefore 

does not warrant review under the public interest exception to 

the mootness doctrine. See Rath v. City of Sutton, 267 Neb. 

265, 673 N.W.2d 869 (2004) (declining to address issue under 

public interest exception that would require detailed examination into specific factual circumstances of case and, due to its 

unique facts, was unlikely to recur).

The unique posttrial procedural history also leads us to 

conclude that we should decline to reach Holcomb’s third 

assigned error, that the county court’s issuance of the writ of 

restitution without serving Holcomb notice violated her right 

to due process. In the normal case, we expect that a tenant 

against whom a judgment of eviction has been entered will 

either (1) appeal and post the requisite appeal bond to stay 
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enforcement of the writ of restitution pending appeal or (2) 

choose not to appeal and face imminent removal from the 

premises. The writ of restitution would not be enforced pending appeal in the first scenario, and a tenant in the second scenario will not be caught off guard when the writ of restitution 

is enforced, since the relief granted to a landlord in an action 

for possession under the NURLTA is “recovery of possession 

of the premises.” § 76-1431(4). See, also, § 76-1446 (“[i]f 

judgment is rendered against the defendant for the restitution 

of the premises, the court shall . . . issue a writ of restitution, 

directing the constable or sheriff to restore possession of the 

premises to the plaintiff on a specified date not more than ten 

days after issuance of the writ of restitution”). Only in a situation where, as here, a tenant desires to stay enforcement of the 

writ but fails to do so could there possibly be a question about 

whether the tenant was given adequate notice that the writ of 

restitution would issue. For the reasons we have explained, 

however, we believe it unlikely that this situation will recur. 

We thus decline to reach this issue under the public interest 

exception to the mootness doctrine. See Rath, supra.

Collateral Consequences.

In addition to the public interest exception to the mootness doctrine, Holcomb also argues that we should proceed 

to the merits of her appeal under a separate exception: the 

collateral consequences exception. Generally, that exception 

“permits adjudication of the merits of a criminal case where 

the petitioner may suffer future state or federal penalties 

or disabilities as a result of the [criminal] judgment” even 

though the criminal sentence has already been served. State v. 

Patterson, 237 Neb. 198, 202, 465 N.W.2d 743, 747 (1991), 

citing St. Pierre v. United States, 319 U.S. 41, 63 S. Ct. 910, 

87 L. Ed. 1199 (1943). Holcomb suggests that she will face 

negative collateral consequences if the judgment of eviction 

is not vacated. She claims that as a result of that judgment, 

landlords may not accept her as a tenant and she may be 
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disqualified from certain subsidized housing programs. This 

court has previously refused to apply the collateral consequences exception to mootness outside the criminal context, 

however, and we decline to do so here. See Hron v. Donlan, 

259 Neb. 259, 609 N.W.2d 379 (2000) (refusing to vacate 

protection order in moot appeal because appellant faced no 

collateral consequences from criminal conviction).

CONCLUSION

Because this case is moot, we dismiss the appeal.

Appeal dismissed.

Papik, J., concurring.

I agree with the majority opinion that this case is moot 

and that therefore, the appeal should be dismissed. That said, 

I believe Holcomb has identified a potential constitutional 

problem with the provision of Nebraska’s Uniform Residential 

Landlord and Tenant Act (the NURLTA) requiring that actions 

for possession be tried to the court. I write separately to highlight why I believe the bench trial provision may rest on constitutionally fragile ground.

Constitutionality of NURLTA’s 

Bench Trial Provision.

The statute providing for actions for possession under the 

NURLTA states that such an action “shall be tried by the court 

without a jury.” Neb. Rev. Stat. § 76-1446 (Reissue 2018). 

When the NURLTA was first enacted in 1974, this provision was not present. It was added by a statutory amendment 

enacted in 1995. See 1995 Neb. Laws, L.B. 52. Holcomb 

argues this provision violates article I, § 6, of the Nebraska 

Constitution.

Article I, § 6, of the Nebraska Constitution provides that 

the “right of trial by jury shall remain inviolate.” We have 

long understood this provision to “preserve the right to a 

jury trial as it existed at common law and under statutes in 

force when the Nebraska Constitution was adopted in 1875.” 
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Eihusen v. Eihusen, 272 Neb. 462, 466, 723 N.W.2d 60, 63 

(2006). See, also, Bell v. State, 104 Neb. 203, 176 N.W. 544 

(1920). At common law, legal claims were tried by a jury and 

equitable claims were tried by a court. Schmid v. Simmons, 

311 Neb. 48, 970 N.W.2d 735 (2022). Thus, in Nebraska, 

it is well established that litigants are typically entitled to a 

jury trial on legal claims, but not equitable claims. Id. As a 

result, when a party contends that it is constitutionally entitled 

to a jury trial, we usually resolve the issue by determining “whether the action is of an equitable or legal nature.” 

Eihusen, 272 Neb. at 467, 723 N.W.2d at 63, citing State ex 

rel. Douglas v. Schroeder, 222 Neb. 473, 384 N.W.2d 626 

(1986). To determine whether an action is equitable or legal 

in nature, we consider its “essential character,” as well as the 

“remedy or relief it seeks.” See State ex rel. Cherry v. Burns, 

258 Neb. 216, 223, 602 N.W.2d 477, 482 (1999).

The essential character of § 76-1446 is an “action for possession” of real property leased to a tenant. See, also, Neb. 

Rev. Stat. §§ 76-1440 to 76-1447 (Reissue 2018). All other 

causes of action relating to the tenancy “shall be answered 

and tried separately” from the sole question of possession that 

an action tried under § 76-1446 resolves. See § 76-1441. The 

relief awarded, if the landlord prevails, is “restitution of the 

premises” to the landlord. See § 76-1446.

Our cases—both ancient and recent—have recognized that 

an action to recover possession of real property is legal, not 

equitable, in nature. For example, nearly a century ago, this 

court held that a landlord was not entitled to an injunction 

restraining a lessee from interfering with the landlord’s right 

to enter the premises. The court explained that the landlord 

could not rely on an equitable remedy—an injunction—when 

he had an adequate remedy at law—an action for possession 

of the premises. See Vance v. Sumner, 119 Neb. 630, 230 

N.W. 490 (1930). Other cases decided even earlier in our 

state’s history also describe actions for possession of real 

property as legal in nature. See, Mohat v. Hutt, 75 Neb. 732, 
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106 N.W. 659 (1906); Wehmer v. Fokenga, 57 Neb. 510, 78 

N.W. 28 (1899); Warlier v. Williams, 53 Neb. 143, 73 N.W. 

539 (1897); Morton v. Green, 2 Neb. 441, 451 (1872) (“[t]his 

was an action to recover the possession of lands, commonly 

styled an action of ejectment, and is purely legal in its character”). Fast forward to the modern era, and this court has 

continued to treat actions for possession of real property as 

legal in nature. Just 2 years ago, we observed that “[a]n action 

for restitution of premises brought under [the NURLTA] is an 

action at law.” Dreesen Enters. v. Dreesen, 308 Neb. 433, 439, 

954 N.W.2d 874, 879 (2021).

This court’s characterization of actions for possession of 

real property as legal in nature is hardly anomalous. Consistent 

with this court’s holdings in the early years of Nebraska’s history, the U.S. Supreme Court has stated that although it is difficult to state “any general rule” that would distinguish suits in 

equity from actions at law, it could say that “where an action 

is simply for the recovery and possession of specific real or 

personal property, or for the recovery of a money judgment, 

the action is one at law.” Whitehead v. Shattuck, 138 U.S. 

146, 151, 11 S. Ct. 276, 34 L. Ed. 873 (1891) (emphasis supplied). See, also, Scott v. Neely, 140 U.S. 106, 110, 11 S. Ct. 

712, 35 L. Ed. 358 (1891) (“[a]ll actions which seek to recover 

specific property, real or personal, . . . are legal actions”). 

Leading historians of the common law likewise describe the 

various modes of recovering real property as common-law 

actions triable by jury. See F.W. Maitland, Equity, Also, the 

Forms of Action at Common Law: Two Courses of Lectures

333 (A.H. Chaytor & W.J. Whittaker eds., 1926); Theodore 

F.T. Plucknett, A Concise History of the Common Law 130 

(5th ed. 1956).

Although this court has never had occasion to consider 

whether the nature of an action for possession under the 

NURLTA means that a party to such an action is entitled to 

a jury trial, many other courts have concluded that similar 

actions by a landlord to evict a tenant and recover possession 
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of real property are legal in nature and are thus subject to 

similar constitutional jury trial guarantees. The most notable 

such example is the U.S. Supreme Court’s decision in Pernell 

v. Southall Realty, 416 U.S. 363, 94 S. Ct. 1723, 40 L. Ed. 

2d 198 (1974). In that case, the U.S. Supreme Court held that 

the District of Columbia’s summary eviction statute, which 

did not provide for a jury trial, was inconsistent with the jury 

trial guarantee set forth in the Seventh Amendment to the U.S. 

Constitution. In its opinion, the U.S. Supreme Court relied 

on the practice at common law, as well the cases referenced 

above, in recognizing that actions to recover real property were 

historically treated as actions at law triable to a jury. It rejected 

an argument that juries were available only where title was in 

issue and explained that common-law actions for possession 

alone were also treated as legal in nature and triable to a jury. 

And since the “right to recover possession of real property” 

was “a right ascertained and protected by courts at common 

law,” the U.S. Supreme Court held the Seventh Amendment 

preserved the right to a jury trial in actions brought under the 

District of Columbia’s summary eviction statute. Pernell, 416 

U.S. at 376.

Because the Seventh Amendment’s jury trial guarantee does 

not apply to suits in state courts, see, e.g., Monterey v. Del 

Monte Dunes at Monterey, Ltd., 526 U.S. 687, 119 S. Ct. 

1624, 143 L. Ed. 2d 882 (1999), the U.S. Supreme Court’s 

decision in Pernell, supra, is not binding in this or other 

state courts. Even so, most state courts to consider the issue 

have followed the analytical path laid out in Pernell and have 

concluded that, under jury trial guarantees similar to ours, 

statutory actions by a landlord to recover possession of real 

property from a tenant are legal in nature and are thus triable 

to a jury. See, Ex Parte Moore, 880 So. 2d 1131 (Ala. 2003); 

Hill v. Levenson, 259 Ga. 395, 383 S.E.2d 110 (1989); N. 

Sch. Congregate Housing v. Merrithew, 558 A.2d 1189 (Me. 

1989); Criss v. Salvation Army Residences, 173 W. Va. 634, 

319 S.E.2d 403 (1984); Baldwin Sod Farms, Inc. v. Corrigan, 
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746 So. 2d 1198 (Fla. App. 1999). But see Vinson v. Hamilton, 

854 P.2d 733 (Alaska 1993) (holding that action for possession 

brought under forcible entry and detainer statute was equitable 

in nature and that thus, parties did not have state constitutional 

right to jury trial).

The longstanding precedent of this court and the weight 

of authority from other jurisdictions thus appears to support 

Holcomb’s argument that actions for possession under the 

NURLTA are legal in nature. And because the constitutional 

right to a jury trial extends to actions that are legal in nature, 

article I, § 6, would seem to afford litigants the right to a jury 

trial for actions brought under § 76-1446.

In addition to the legal nature of actions for possession, 

statutes in effect at the time article I, § 6, was adopted also 

appear to support the argument that the jury trial guarantee 

applies to actions for possession under the NURLTA. Statutes 

in effect at that time are relevant because that constitutional 

provision states that the “right of trial by jury shall remain 

inviolate.” In light of that language, we have long interpreted article I, § 6, to “preserve the right to a jury trial as 

it existed at common law and under statutes in force when 

the Nebraska Constitution was adopted in 1875.” Eihusen 

v. Eihusen, 272 Neb. 462, 466, 723 N.W.2d 60, 63 (2006) 

(emphasis supplied).

At least two Nebraska statutes in effect in 1875 provided 

the right to a jury trial in actions to recover real property. 

First, in 1875, the Nebraska Code of Civil Procedure provided that “[i]ssues of law must be tried by the court” but 

that “[i]ssues of fact arising in actions for the recovery of

money, or of a specific real or personal property, shall be 

tried by a jury, unless a jury trial is waived, or a reference 

be ordered as hereinafter provided.” Comp. Stat. ch. 2, § 280 

(1881) (emphasis supplied); Rev. Stat. ch. 2, § 280, p. 440 

(1866) (same).

In addition to the Nebraska Code of Civil Procedure, 

Nebraska’s forcible entry and detainer statute that existed in 
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1875 independently guaranteed the right to a jury trial in summary possession actions. See Comp. Stat. ch. 10, § 1028 (1881); 

Rev. Stat. ch. 10, § 1028, p. 576 (1866). As NP Dodge admitted in this case, “the procedures set forth in [the NURLTA] are 

essentially the same as the procedures found” under the forcible 

entry and detainer statutes that exist today. Brief for appellee 

at 21. The forcible entry and detainer statutes have remained 

essentially unamended since 1875. Compare Rev. Stat. ch. 10, 

§§ 1019 through 1032, pp. 574-77 (1866), with Neb. Rev. Stat. 

§§ 25-21,219 through 25-21,235 (Reissue 2016).

Like the possession action under the NURLTA, the sole 

purpose of a forcible entry and detainer action in 1875 was 

“to determine the immediate right of possession.” Federal Nat. 

Mortgage Assn. v. Marcuzzo, 289 Neb. 301, 310, 854 N.W.2d 

774, 781 (2014). See Neb. Rev. Stat. § 76-1441(1) (Reissue 

2018). By its terms, forcible entry and detainer applied “in 

all cases against tenants holding over their terms,” and the 

statutory remedy was “restitution of the premises” enforced 

by issuance of a “writ of restitution.” Rev. Stat. ch. 10, 

§§ 1020, 1027, and 1031, pp. 574-76 (1866). Likewise, under 

the NURLTA, a landlord who succeeds at trial is entitled to 

“restitution of the premises” enforced by issuance of a “writ of 

restitution.” § 76-1446. Nebraska’s forcible entry and detainer 

statute that existed in 1875 thus appears to be “substantially 

similar” to the possession action authorized by the NURLTA. 

Eihusen, 272 Neb. at 467, 723 N.W.2d at 64.

A landlord-tenant eviction proceeding in 1875 would have 

been triable to a jury under both the Nebraska Code of Civil 

Procedure and the forcible entry and detainer statutes then in 

effect in Nebraska. The fact that these statutes codified the 

same right to a jury trial that existed for real property possession actions at common law is unsurprising. In 1866, the 

Territorial Legislature of Nebraska “adopted[] and declared” 

the “common law of England” to be the law in Nebraska 

to the extent not inconsistent with the U.S. Constitution, 

“the organic law of this territory,” or with statutes passed by 
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the Legislature. Rev. Stat. ch. 7, § 1, p. 81 (1866), now codified at Neb. Rev. Stat. § 49-101 (Reissue 2021). The jury trial 

provisions in the Nebraska Code of Civil Procedure and forcible entry and detainer statutes that existed in 1875 thus could 

be understood as the Legislature’s attempt to faithfully implement the common-law right to a jury trial in possession actions 

as the law in Nebraska.

Despite all of the foregoing, NP Dodge and the Attorney 

General, who filed a brief defending the constitutionality of 

the NURLTA’s bench trial provision, argued in this case that 

article I, § 6, of the Nebraska Constitution does not require 

that actions for possession under the NURLTA be triable to a 

jury. Their primary argument in support of this position was 

that such actions are special or summary proceedings. They 

contended that under State v. Moores, 56 Neb. 1, 76 N.W. 530 

(1898), the constitutional right to a jury trial does not extend to 

special or summary proceedings.

To be sure, there is language in Moores in which this court 

quoted an opinion of the Arkansas Supreme Court stating that 

“‘[t]he right of trial by jury, at common law, never existed in 

. . . summary proceedings.’” 56 Neb. at 8, 76 N.W. at 532, 

quoting State v. Johnson, 26 Ark. 281 (1870). And although 

Moores does not expressly mention special proceedings, NP 

Dodge and the Attorney General argued that some legal encyclopedias and other jurisdictions have stated that a constitutional right to a jury trial also does not extend to such proceedings. See, e.g., 47 Am. Jur. 2d Jury § 39 (2017); 50A C.J.S. 

Juries § 37 (2019).

NP Dodge and the Attorney General took the position 

that an action for possession under § 76-1446 qualifies as 

both a summary and special proceeding under these authorities. Although the exact definitions they offered for these 

categories were not completely clear to me, they seemed to 

argue that an action for possession under the NURLTA is 

a special proceeding because it is codified in chapter 76 of 

the Nebraska Revised Statues, rather than chapter 25, and 
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because it is governed by its own, distinct rules of procedure, 

as opposed to the ordinary rules of civil procedure. NP Dodge 

and the Attorney General suggested that an action for possession under the NURLTA is a summary proceeding because 

the NURLTA prescribes an expedited timeline for certain 

requirements in such an action. See, e.g., § 76-1442 (requiring 

service of summons within 3 days); § 76-1446 (requiring that 

trial be held “not less than ten nor more than fourteen days 

after the issuance of the summons”).

This argument, however, has some flaws. As an initial matter, the statement NP Dodge and the Attorney General rely on 

from Moores, supra, is dicta—the issue in Moores was whether 

the jury trial guarantee applied to a quo warranto proceeding. 

Furthermore, other dicta in Moores is contrary to the argument 

of NP Dodge and the Attorney General. Moores quoted other 

language from the same Arkansas Supreme Court opinion that 

stated, “‘[s]o far as our research has extended, the right of trial 

by jury, at common law, only extended to criminal prosecutions 

and in actions where a freehold or goods and chattels were 

in dispute. The term “goods and chattels” includes personal 

property, choses in action, and chattels real.’” 56 Neb. at 9, 

76 N.W. at 533, quoting State v. Johnson, supra. And “chattels 

real” meant “interests in land which devolve after the matter 

of personal estate, as leaseholds,” Black’s Law Dictionary 194 

(2d ed. 1910), or, more simply, “a leasehold estate,” Black’s 

Law Dictionary 286 (10th ed. 2014).

In any event, it is difficult for me to conclude that the 

language in Moores at issue would allow the Legislature to 

remove an action from constitutional jury trial protections by, 

for example, codifying an action somewhere other than chapter 25 or requiring that the action be completed in an expedited manner. Our court has never before understood Moores

to allow as much. And if we were to adopt this argument, I do 

not know what would prevent the Legislature from enacting 

a statute codified somewhere other than chapter 25 or with 

some expedited procedures that makes actions that would 
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otherwise be obviously subject to the constitutional jury trial 

guarantee—say, a breach of contract action for damages—

“special or summary proceedings” tried by a court instead of 

a jury. It is difficult to understand how this is consistent with 

article I, § 6’s promise that the “right of trial by jury shall 

remain inviolate.”

As opposed to the reading urged by NP Dodge and the 

Attorney General, it strikes me as more likely that the language in Moores regarding summary proceedings and the 

language in legal encyclopedias and cases from other jurisdictions regarding special proceedings recognizes a much less 

remarkable proposition: that there are certain proceedings, 

sometimes described as special, summary, or statutory, that did 

not exist at common law and that the constitutional jury trial 

guarantee does not apply to such proceedings. Indeed, many 

of the authorities relied upon by NP Dodge and the Attorney 

General actually state that it is special or summary proceedings unknown at common law to which a jury trial guarantee 

does not apply. See, e.g., Hair Excitement v. L’Oreal U.S.A., 

158 N.H. 363, 368, 965 A.2d 1032, 1037 (2009) (stating that 

the right to a jury trial “does not extend . . . to special, statutory, or summary proceedings unknown to the common law”) 

(internal quotation marks omitted); State v. Bennion, 112 Idaho 

32, 74-75, 730 P.2d 952, 994-95 (1986) (“it has been held that 

the right to jury trial does not apply to actions unknown to the 

common law . . . and that it does not apply to special proceedings created by statute and not in the nature of common law 

actions”); 47 Am. Jur. 2d Jury § 39 at 452-53 (2017) (“[t]he 

constitutional right to a jury trial does not apply to special 

or summary proceedings unknown to the common law[] and 

. . . provided by statute after the adoption of the constitution”); 

50A C.J.S. Juries § 37 at 196 (2019) (“there is generally no 

right to a jury trial in special proceedings unknown at common 

law, or in summary proceedings”).

Our court, too, has recognized that certain statutory proceedings created after 1875 are neither legal nor equitable 
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because they did not exist at common law and that the constitutional jury trial guarantee does not apply to such proceedings. See, Schroeder v. Oeltjen, 184 Neb. 8, 165 N.W.2d 81 

(1969) (school district reorganization proceeding); McMaster 

v. Wilkinson, 145 Neb. 39, 15 N.W.2d 348 (1944) (election 

contest), overruled in part on other grounds, State ex rel. 

Brogan v. Boehner, 174 Neb. 689, 119 N.W.2d 147 (1963). 

But to the extent it is argued that an action for a writ of restitution under the NURLTA was unknown to the common law, 

that seems dubious. As explained at length above, actions for 

possession of real property have consistently been treated as 

legal in nature, and furthermore, statutes in effect at the time 

the Nebraska Constitution was adopted also made actions for 

possession of real property triable to a jury.

It is true that the NURLTA contains myriad other provisions besides the few sections creating and effectuating the 

summary possession action. See Neb. Rev. Stat. §§ 76-1401 

to 76-1449 (Reissue 2018). And I acknowledge that some 

sections of the NURLTA place statutory obligations on both 

landlords and tenants—obligations that did not exist at common law or by statute in 1875. But in analyzing whether the 

Nebraska Constitution protects the right to a jury trial in a 

particular proceeding, our court considers not the statutory 

enactment as a whole, but, rather, the “essential character” of 

the specific “cause of action” upon which the plaintiff brings 

suit, as well as the “remedy or relief” the plaintiff seeks. See 

State ex rel. Cherry v. Burns, 258 Neb. 216, 223, 602 N.W.2d 

477, 482 (1999). Immediate possession of the premises is 

the only issue before the court in a possession action under 

the NURLTA.

An action for possession is not a case where a landlord 

seeks to “obtain injunctive relief to compel” a tenant to give 

it lawful access to the premises, § 76-1438(1), nor is it a 

case where a tenant sues a landlord to “obtain injunctive 

relief for any noncompliance by the landlord with the rental 

agreement,” § 76-1425(2). Instead, the remedy awarded in a 
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successful action for possession is simply “recovery of possession of the premises.” §§ 76-1431(4) and 76-1440. And as 

discussed extensively above, at common law, causes of action 

seeking possession of real property were legal in nature and 

were tried by a jury.

Public Interest Exception.

Although the NURLTA’s bench trial provision may be of 

questionable constitutionality, I agree we cannot give practical 

legal relief to Holcomb in this case and therefore the issue is 

moot. And while we can decide otherwise moot issues under 

the public interest exception to the mootness doctrine, the 

court declines to reach the question of whether the NURLTA’s 

bench trial provision is unconstitutional under that exception 

in this case.

As I understand the majority opinion, we have declined to 

exercise our discretion to decide the constitutionality of the 

bench trial provision in this case because this issue may not 

inherently evade review. I join the majority opinion with that 

understanding, but also observe that the relatively short length 

of most residential leases combined with the time it takes for 

an appeal to reach this court may make it difficult for this 

issue to reach this court in a live fashion. If future cases demonstrate that this issue does, in fact, inherently evade review, I 

would be open to addressing this issue under the public interest exception.

Conclusion.

In closing, I note some practical realities after today’s decision. While the court has not held that the NURLTA’s bench 

trial provision is unconstitutional, neither have we held that 

it is constitutional. Furthermore, three members of this court, 

through this concurrence, have expressed doubts about the 

constitutionality of the bench trial provision. Suffice it to say, 

the constitutionality of the NURLTA’s bench trial provision 

remains an open question.
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This state of affairs may be of interest to the Legislature. 

The Legislature may wish to itself consider the constitutionality of, and reassess, the NURLTA’s bench trial provision. 

And even if the bench trial provision remains unchanged, the 

Legislature may wish to consider addressing whether the rest 

of the NURLTA is severable from its bench trial provision and, 

if so, how actions for possession under the NURLTA are to 

proceed if the bench trial provision is found unconstitutional.

Miller-Lerman and Funke, JJ., join in this concurrence.