Landlord / Tenant: Black v. Brooks, 285 Neb. 440 (2013)
Issues: (1) What constitutes a sufficient demand of the return of a security deposit and (2) whether statutory attorney fees can be awarded when the tenant is represented by attorneys working pro bono?
Facts: Plaintiff rented a home located at 38th Avenue which later sustained water damage. As a result, Plaintiff moved to the Hoctor property owned by the same landlord. Plaintiff only paid a security deposit for the 38th Avenue Property. Plaintiff demanded her security deposit back for the Hoctor property as she believed the deposit rolled over to the Hoctor property. Defendant argued Plaintiff never demanded the deposit back from the 38th Avenue property because of the purported damage to that property. Defendant alternatively argued Plaintiff’s demand was deficient because she asked for the deposit back from the Hoctor property and not the 38th Avenue property. The trial court held the security deposit from 38th Avenue rolled over to serve as security against damage to the Hoctor property and that Plaintiff had made a proper demand. As such, the court awarded Plaintiff attorney fees pursuant to the Landlord Tenant Act.
Holding: On appeal, Defendant argued Plaintiff did not demand the return of her deposit and that attorney’s fees were not available because Plaintiff was represented by attorneys working pro bono. The Supreme Court affirmed the district court’s ruling that Plaintiff’s demand was sufficient stating that when a tenant files a lawsuit, a landlord has 14 days to either return the security deposit or itemize why the landlord is justified to keep the security deposit. The Court further held attorney’s fees are available to pro bono attorneys.
For a complete copy of the Court’s opinion, click here
Nebraska Procedure: Aguirre v. Union Pacific RR. Co., 20 Neb.App. 597 (2013)
Issues: Whether the dismissal of a claim on the ground that the claim is not the proper remedy is a judgment on the merits and, therefore, any subsequent claims are barred by res judicata.
Facts: Plaintiff initially filed a cause of action against Union Pacific (“UP”) under the Federal Employers’ Liability Act alleging he was an employee of UP and sustained injuries in an October 21, 2007 accident as a result of UP’s negligence. The initial suit was dismissed because the district court found Plaintiff was not an employee. Plaintiff then filed a second suit under a common-law negligence theory for the same injuries he sustained in the October 21, 2007, accident. UP filed a motion to dismiss, which the district court granted. The district court concluded Plaintiff’s claim was barred by the doctrine of res judicata, because he had filed a previous claim against UP based on the same set of facts.
Holding: On appeal, the Nebraska Court of Appeals held the district court’s decision that Plaintiff was not a UP employee was not a judgment on the merits because the district court only concluded FELA was not the proper remedy. Therefore, the decision was not a judgment on the merits and Plaintiff was entitled to file a second suit as his claim was not barred by the doctrine of res judicata.
For a complete copy of the Court’s opinion, click here
Intentional Torts: Wulf v. Kunnath, 285 Neb. 472 (2013)
Issues: Whether the trial court erred by denying Plaintiff’s motion for directed verdict or by submitting the issue of battery to the jury, because reasonable minds could conclude Plaintiff consented to Defendant’s contact or that the contact did not cause her injuries.
Facts: Plaintiff, a nurse, brought suit after Dr. Kunnath, Defendant, used his hand to tap or strike the back of her neck in a lighthearted work setting. Defendant intended to make the contact at issue, but he did not intend to hurt Plaintiff. Plaintiff’s reaction to the contact was in dispute as Plaintiff alleged she immediately began to feel pain and made this known. Both Plaintiff and Defendant testified the office atmosphere was that of a close-knit group, who joked and teased one another. Plaintiff testified Defendant had “thumped” her on two or three occasions prior to the incident in question. She described these as “good-natured thumps” and she never complained about the thumping, never asked Defendant not to do it again, and did not find it to be offensive conduct. Plaintiff saw her physician approximately one week after the incident complaining of neck pain and pain radiating down her right arm. Ultimately, Plaintiff underwent two surgeries and argued this treatment was related to the incident in question. However, medical records revealed preexisting neck problems and her spine surgeon opined the precise etiology for her symptoms were unclear. At the close of all evidence, Plaintiff moved for a directed verdict on the issues of battery and injury. The district court overruled the motion. The jury subsequently returned a verdict for Defendant.
Holding: On appeal, Plaintiff argued the district courted erred when it failed to grant her motion for summary judgment, failing to direct a verdict for her on the issue of battery, and submitting jury instructions that allowed the jury to determine whether a battery occurred or whether an injury resulted from the action. The Nebraska Supreme Court did not consider whether the district court erred in denying Plaintiff’s motion for summary judgment because the denial of a summary judgment motion is neither appealable nor reviewable. The Nebraska Supreme Court concluded the district court did not err by denying Plaintiff’s motion for directed verdict or by submitting the issue of battery to the jury, because reasonable minds could conclude that Plaintiff consented to Defendant’s conduct given Defendant had previously “thumped” her and she never complained. The Court further held reasonable minds could conclude the contact did not cause her injuries.
For a complete copy of the Court’s opinion, click here