Vasquez v. CHI Properties , 302 Neb. 742 ( 2019 )


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    www.nebraska.gov/apps-courts-epub/
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    VASQUEZ v. CHI PROPERTIES
    Cite as 
    302 Neb. 742
    Claudia Vasquez          Cesar Moreno Tinoco,
    and
    appellants, v. CHI Properties,
    LLC, appellee.
    ___ N.W.2d ___
    Filed April 5, 2019.     No. S-17-1287.
    1. Motions to Dismiss: Appeal and Error. An appellate court reviews a
    district court’s order granting a motion to dismiss de novo, accepting
    the allegations in the complaint as true and drawing all reasonable infer-
    ences in favor of the nonmoving party.
    2. Actions: Pleadings: Notice. Civil actions are controlled by a liberal
    pleading regime; a party is only required to set forth a short and plain
    statement of the claim showing that the pleader is entitled to relief and
    is not required to plead legal theories or cite appropriate statutes so long
    as the pleading gives fair notice of the claims asserted.
    3. Motions to Dismiss: Pleadings. To prevail against a motion to dis-
    miss for failure to state a claim, a plaintiff must allege sufficient facts,
    accepted as true, to state a claim to relief that is plausible on its face.
    4. Rules of the Supreme Court: Pleadings. Dismissal under Neb. Ct. R.
    Pldg. § 6-1112(b)(6) should be granted only in the unusual case in which
    a plaintiff includes allegations that show on the face of the complaint
    that there is some insuperable bar to relief.
    5. Statutes: Legislature: Intent. In construing statutes, legislative inten-
    tion is to be determined from a general consideration of a whole act
    with reference to the subject matter to which it applies and the particu-
    lar topic under which the language in question is found, and intent so
    deduced from the whole will prevail over that of a particular part con-
    sidered separately.
    6. Actions: Landlord and Tenant: Leases: Words and Phrases. A ten-
    ant who accepts possession and lives on the property for several months
    thereafter does not have a claim under Neb. Rev. Stat. § 76-1418
    (Reissue 2018), because the duties described in § 76-1418 pertain to the
    “commencement” of the lease term.
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    VASQUEZ v. CHI PROPERTIES
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    7. Election of Remedies: Estoppel: Claim Preclusion. The doctrine
    of election of remedies is a somewhat vague notion lying somewhere
    between the areas occupied by the doctrines of equitable estoppel and
    claim preclusion.
    8. Election of Remedies: Proof. When the election is between remedies
    with different elements of proof under the same complaint, a plaintiff
    can attempt to prove both theories and need only elect one for the pur-
    pose of recovery in the event that the trier of fact finds both theories
    were proved.
    9. Election of Remedies: Pleadings. So long as the plaintiff does not
    ultimately obtain two recoveries for the same harm, the doctrine of elec-
    tion of remedies does not generally prevent the plaintiff from pleading
    remedies that are mutually exclusive.
    10. Election of Remedies. Election of remedies applies only when there are
    inconsistent remedies for redress of the same single injury.
    11. Landlord and Tenant: Contracts: Notice: Injunction: Damages:
    Time. So long as a tenant has given notice when required by Neb. Rev.
    Stat. § 76-1419 (Reissue 2018), a tenant can seek damages or injunctive
    relief under Neb. Rev. Stat. § 76-1425(2) (Reissue 2018) without send-
    ing notice under § 76-1425(1) specifying that the rental agreement will
    terminate upon a date not less than 30 days after receipt of the notice of
    the breach, if not remedied within 14 days.
    12. Landlord and Tenant: Election of Remedies: Injunction: Damages:
    Words and Phrases. The reference in the conjunctive to “damages” and
    “injunctive relief” in Neb. Rev. Stat. § 76-1425(2) (Reissue 2018) serves
    to vest a tenant with two distinct options for relief and does not require
    that both be pursued in order to pursue either.
    13. Actions: Landlord and Tenant: Contracts. Neither Neb. Rev. Stat.
    §§ 76-1430 and 76-1439 (Reissue 2018) nor any other provision of
    the Uniform Residential Landlord and Tenant Act, Neb. Rev. Stat.
    §§ 76-1402 to 76-1449 (Reissue 2018), indicates that a separate action
    for termination of a rental agreement is a prerequisite to termination
    under the act.
    Appeal from the District Court for Douglas County: J.
    Michael Coffey, Judge. Affirmed in part, and in part reversed.
    Katelyn Cherney, of Milton R. Abrahams Legal Clinic, for
    appellants.
    Mark S. Dickhute for appellee.
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    VASQUEZ v. CHI PROPERTIES
    Cite as 
    302 Neb. 742
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    NATURE OF CASE
    Tenants brought a complaint against their landlord under
    the Uniform Residential Landlord and Tenant Act (URLTA),
    Neb. Rev. Stat. §§ 76-1402 to 76-1449 (Reissue 2018). They
    alleged that numerous code violations materially affecting
    their health and safety were present at the time they com-
    menced physical possession of the property, but were not
    discovered until later. The tenants asked the City of Omaha
    Planning Department’s housing division (Housing Division) to
    conduct an inspection of the property, which eventually led to
    the Housing Division’s declaring the property unsafe and unfit
    for human occupancy and ordering the tenants to immediately
    vacate the premises. The landlord failed to perform repairs
    to make the property habitable even after months of repeated
    notices and demands by the Housing Division and the ten-
    ants. During much of this time, the tenants continued to pay
    utilities. The tenants eventually gave their landlord 5 days’
    notice of their intention to terminate the rental agreement.
    The landlord refused to return the tenants’ security deposit or
    reimburse them for utilities paid. The landlord also refused to
    return rent paid for the 2 months that the tenants were mostly
    unable to occupy the premises, which the landlord allegedly
    had demanded in retaliation for the tenants’ reporting to the
    Housing Division. The district court dismissed the complaint
    under Neb. Ct. R. Pldg. § 6-1112(b)(6), and the tenants appeal.
    The question presented is whether the alleged facts state a
    claim for relief under the URLTA.
    BACKGROUND
    Complaint
    Claudia Vasquez and Cesar Moreno Tinoco (tenants) filed a
    complaint against CHI Properties, LLC (CHI). After their first
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    complaint was dismissed, they were granted leave to amend.
    The amended complaint alleged the following.
    On or about May 10, 2016, tenants entered into a written
    agreement to rent property owned by CHI for $850 per month
    and to pay $850 as a security deposit. During the first 8 weeks
    of the lease term, after tenants began living at the property,
    they noticed a water leak in the bathroom that was causing
    mold formation. CHI sent a plumber to repair the leak, but the
    repair was not effective.
    CHI failed to adequately respond to tenants’ concerns regard-
    ing surface mold in the home. In July 2016, tenants’ minor
    child was treated for mold exposure and the Douglas County
    Health Department was contacted.
    By letter dated October 4, 2016, the health department
    issued written recommendations to CHI for resolving an active
    water leak and visible mold. As of November 18, CHI made
    no efforts to follow the recommendations or otherwise resolve
    the water leak and mold.
    Tenants contacted the Housing Division, requesting a
    housing inspection for possible housing code violations. The
    Housing Division inspected the property on October 7, 2016,
    and issued a “‘Notice of Property Violation’” to CHI by mail
    on October 14.
    When CHI received the violation notice on or around
    October 17, 2016, CHI demanded, in retaliation for tenants’
    complaint to the Housing Division, that tenants vacate the
    property within 2 weeks.
    Around that same time, CHI accepted a payment by ten-
    ants in the amount of $850 for November’s rent. Tenants had
    made all prior rent payments since the inception of the rental
    agreement.
    On or around November 14, 2016, the Housing Division
    found that CHI had not cured the previously cited violations,
    and additional violations were discovered. There were 31 code
    violations in total, 13 of which were considered to be of a
    “‘high’ severity level.”
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    On or around November 17, 2016, a major electrical hazard
    at the property was detected by the Housing Division and the
    Omaha Public Power District. This major electrical hazard
    put tenants at risk of serious harm. This hazard existed at the
    commencement of the rental agreement, although tenants were
    unaware of it at that time.
    The Housing Division declared the property unsafe and
    unfit for human occupancy and ordered tenants to immediately
    vacate the property. A placard “‘Danger-Closed,’” along with
    a description of the penalties for occupancy, was posted on the
    property by the Housing Division on November 18, 2016.
    That same day, CHI spoke with tenants and assured them
    that repairs would be completed within a few days. Tenants
    stayed with family members. There is no allegation that they
    paid rent to their family members.
    On or around December 16, 2016, tenants sent written
    notice to CHI demanding performance of the rental agreement.
    The details of this notice are not otherwise described in the
    complaint. Tenants remained barred from the property by the
    Housing Division.
    On or around December 19, 2016, the Housing Division
    again inspected the property. It found that CHI was working
    on the electrical issue, but it was not completed, and that CHI
    had not remedied any of the other 30 code violations.
    During an inspection on December 28, 2016, the Housing
    Division found that the “‘water is off and the water heater is
    being re-installed.’” The Housing Division notified CHI and
    tenants that no one could occupy the premises until the water
    heater was properly installed.
    At some point, despite the Housing Division’s no-occupancy
    order, CHI threatened that if tenants did not resume occupancy,
    it would treat them as if they had abandoned the property and
    dispose of their personal belongings.
    On January 9, 2017, tenants mailed a second written notice
    to CHI, demanding that it complete all repairs and inspections
    necessary so that they could resume occupancy.
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    VASQUEZ v. CHI PROPERTIES
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    The Housing Division removed the placard from the property
    on February 3, 2017, and tenants moved back in on February
    5. However, tenants immediately discovered that the water was
    off and major plumbing repairs were in progress. Tenants had
    not paid rent for December 2016 or January 2017, but they had
    paid for television and internet services until approximately
    January 10 and had paid all utility bills until March 14.
    On February 6, 2017, CHI demanded and tenants paid $850
    for the February rent. Through a notice posted on February 2,
    CHI had threatened to bring a restitution action if tenants failed
    to pay February’s rent.
    The following day, on February 7, 2017, the Housing
    Division issued a new order to vacate and the property was
    replacarded. The Housing Division ordered CHI to hire a
    licensed plumber to correct noncompliant plumbing work and
    complete necessary plumbing inspections within 30 days. CHI
    failed to comply. CHI did not refund tenants their February
    rent payment.
    Tenants “terminated their lease effective March 12, 2017,
    and demanded return of all prepaid rent and security after
    tendering five days’ written notice under Neb. Rev. Stat.
    § 76-1426(1) for [CHI’s] failure to deliver possession of fit
    and habitable premises.” Tenants had been excluded from the
    property for nearly 4 months due to CHI’s refusal to complete
    repairs and inspections necessary to have the property released
    for occupancy by the Housing Division.
    CHI failed to return tenants’ “prepaid rent” and security
    deposit following written demand. The property remained
    under an active vacate order as of May 1, 2017, the date ten-
    ants filed their amended complaint.
    Tenants’ amended complaint alleged causes of action under
    the URLTA. They cited to §§ 76-1426, 76-1419, 76-1430,
    and 76-1439, which corresponded to actions for (1) failure
    to deliver possession, (2) failure to maintain fit premises, (3)
    unlawful ouster, and (4) retaliation. Tenants sought return of
    their security deposit, which is provided for by § 76-1416(2),
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    as well as other provisions of the URLTA, damages, and attor-
    ney fees.
    Motion to Dismiss
    CHI moved to dismiss the complaint under § 6-1112(b)(6)
    for failure to state a claim.
    CHI asserted, first, that there was no allegation that pos-
    session had not been delivered. Thus, according to CHI, there
    was no breach of the duty set forth in § 76-1418 and the rem-
    edies of § 76-1426 do not apply, including the 5-day notice
    to terminate.
    Second, CHI asserted that because there was no allegation
    that tenants had delivered a “14/30 day Notice to Cure,” ten-
    ants could not make any claim for damages under § 76-1425.
    Nor, according to CHI, did tenants assert any facts show-
    ing damages, “because they procured substitute services and
    deducted them from the rent, as provided in Neb. Rev. Stat.
    §76-1427 (1)” or “secured substitute housing and abated the
    payment of rent, the remedy allowed to them under Neb. Rev.
    Stat. §76-1427(2).” CHI asserted that tenants’ allegations that
    they resorted to the remedy of abatement precluded them,
    pursuant to § 76-1427(2), from pursuing damages or attor-
    ney fees.
    CHI asserted that tenants failed to state claims under
    § 76-1430 or § 76-1439 for retaliation or ouster, because there
    was no allegation that tenants had either recovered possession
    or lawfully terminated the rental agreement.
    At the hearing on the motion to dismiss, CHI submitted,
    without objection, a printout from Nebraska’s online trial court
    case management system, known as JUSTICE, for the court to
    take judicial notice of, which demonstrated that tenants did not
    file a separate action to terminate the lease.
    Order of Dismissal
    The district court concluded that tenants failed to
    state a claim for breach of the duty to deliver, because
    §§ 76-1418 and 76-1426 did not apply when tenants accepted
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    physical possession of the property at the commencement of
    the rental period.
    Regarding the alleged failure to maintain fit and habitable
    premises, the court stated that tenants’ failure to allege that
    they had delivered to CHI a “14/30 day Notice to Cure or ter-
    minate the lease” prevented their claim. The court also cited to
    the exhibit demonstrating that tenants did not bring a separate
    action to terminate the lease. The court reasoned, further, that
    damages under § 76-1425 were not available for any breach
    of a duty to maintain fit premises, because damages are avail-
    able under the statute only “when an action for injunctive
    relief has also been brought.” Finally, the court reasoned that
    because tenants resorted to the remedy of abatement pursuant
    to § 76-1427(2), they were precluded from recovering damages
    and attorney fees under § 76-1425(2).
    The court concluded that tenants failed to state claims for
    ouster or retaliation under §§ 76-1430 and 76-1439(2), because
    there was no allegation that tenants either recovered possession
    or lawfully terminated the rental agreement.
    The court granted CHI’s motion to dismiss. Tenants elected
    to stand on the amended complaint and sought entry of a final
    judgment. The court dismissed the complaint “with / without
    prejudice,” and tenants timely appealed.
    ASSIGNMENT OF ERROR
    Tenants assign, summarized, that the district court erred in
    dismissing their complaint.
    STANDARD OF REVIEW
    [1] An appellate court reviews a district court’s order grant-
    ing a motion to dismiss de novo, accepting the allegations in
    the complaint as true and drawing all reasonable inferences in
    favor of the nonmoving party.1
    1
    Eadie v. Leise Properties, 
    300 Neb. 141
    , 
    912 N.W.2d 715
    (2018); Burklund
    v. Fuehrer, 
    299 Neb. 949
    , 
    911 N.W.2d 843
    (2018).
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    ANALYSIS
    [2] Nebraska is a notice pleading jurisdiction.2 Civil actions
    are controlled by a liberal pleading regime; a party is only
    required to set forth a short and plain statement of the claim
    showing that the pleader is entitled to relief and is not required
    to plead legal theories or cite appropriate statutes so long as the
    pleading gives fair notice of the claims asserted.3 The rationale
    for this liberal notice pleading standard in civil actions is that
    when a party has a valid claim, he or she should recover on it
    regardless of a failure to perceive the true basis of the claim at
    the pleading stage.
    [3,4] Thus, to prevail against a motion to dismiss for failure
    to state a claim, a plaintiff must allege sufficient facts, accepted
    as true, to state a claim to relief that is plausible on its face.4
    Dismissal under § 6-1112(b)(6) should be granted only in the
    unusual case in which a plaintiff includes allegations that show
    on the face of the complaint that there is some insuperable bar
    to relief.5 We review the district court’s determination as to
    whether the plaintiff has stated a claim de novo, accepting as
    true all facts that are well pled and the proper and reasonable
    inferences of law and fact that may be drawn therefrom, but
    not the plaintiff’s conclusions.6
    [5] Tenants attempted to enforce at least four different rights
    and obligations set forth by at least four different statutes of the
    URLTA. However, according to CHI, none of the provisions of
    the URLTA allow tenants to recover under the facts pled or the
    proper and reasonable inferences of law and fact that may be
    drawn therefrom. In order to determine whether tenants stated
    a claim under the URLTA, we must determine the meaning of
    2
    
    Id. 3 Id.
    4
    See 
    id. 5 In
    re Interest of Noah B. et al., 
    295 Neb. 764
    , 
    891 N.W.2d 109
    (2017).
    6
    See, Eadie v. Leise Properties, supra note 1; Burklund v. Fuehrer, supra
    note 1.
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    the URLTA statutes independently of the trial court.7 In con-
    struing statutes, legislative intention is to be determined from
    a general consideration of a whole act with reference to the
    subject matter to which it applies and the particular topic under
    which the language in question is found, and intent so deduced
    from the whole will prevail over that of a particular part con-
    sidered separately.8 The statutory language is to be given its
    plain and ordinary meaning, and an appellate court will not
    resort to interpretation to ascertain the meaning of statutory
    words which are plain, direct, and unambiguous.9
    The fundamental objective of statutory interpretation is to
    ascertain and carry out the Legislature’s intent.10 In accord­
    ance with the mandate of § 76-1402, we must liberally con-
    strue and apply the URLTA to promote its underlying purposes
    and policies to (1) simplify and modernize the law, (2) encour-
    age both the landlord and tenant to maintain and improve the
    quality of housing, and (3) make uniform the law among those
    states that enact it.
    While we agree with the district court that tenants failed
    to state a claim for breach of the duty to deliver possession
    under § 76-1418, we hold that tenants stated plausible claims
    for breaches of the duties to put and keep the rental premises
    fit and habitable under § 76-1419, for wrongful ouster under
    § 76-1430, and retaliatory conduct as described by § 76-1439.
    These correspond to what tenants labeled as their second,
    third, and fourth causes of action. We also hold that the alleged
    facts do not present an insuperable bar to relief in the form
    of return of their security deposit under § 76-1416(2) “[u]pon
    termination of the tenancy . . .” through means not specifi-
    cally described by the URLTA. Which precise remedies will be
    available to tenants under the URLTA in the event they prove
    7
    See Pan v. IOC Realty Specialist, 
    301 Neb. 256
    , 
    918 N.W.2d 273
    (2018).
    8
    
    Id. 9 Id.
    10
    
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    the alleged breaches of the duties set forth by the URLTA was
    not the proper subject of a motion to dismiss, so long as some
    remedy was available under the statutory scheme. We find no
    merit to CHI’s assertion that tenants lack any remedy under the
    URLTA for the breaches alleged.
    Duty to Deliver Possession
    We first address the duty under § 76-1418 to deliver posses-
    sion and its corresponding remedy set forth in § 76-1426. We
    agree with CHI and the district court that these provisions of
    the URLTA do not apply to the facts alleged. The district court
    thus did not err in dismissing tenants’ first cause of action.
    Section 76-1418 sets forth a duty of the landlord to deliver
    possession at commencement of the rental term:
    At the commencement of the term the landlord shall
    deliver possession of the premises to the tenant in com-
    pliance with the rental agreement and section 76-1419.
    The landlord may bring an action for possession against
    any person wrongfully in possession and may recover the
    damages provided in subsection (3) of section 76-1437. If
    the landlord makes reasonable efforts to obtain possession
    of the premises, he shall not be liable for an action under
    this section.
    Section 76-1426 describes remedies for a landlord’s failure
    to deliver possession:
    If the landlord fails to deliver possession of the dwell-
    ing unit to the tenant as provided in section 76-1418, rent
    abates until possession is delivered and the tenant shall:
    (1) Upon at least five days’ written notice to the land-
    lord terminate the rental agreement and upon termination
    the landlord shall return all prepaid rent and security; or
    (2) Demand performance of the rental agreement by
    the landlord and, if the tenant elects, maintain an action
    for possession of the dwelling unit against any person
    wrongfully in possession or wrongfully withholding pos-
    session and recover the damages sustained by him.
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    If a person’s failure to deliver possession is will-
    ful and not in good faith, an aggrieved person may
    recover from that person an amount not more than three
    months’ periodic rent or threefold the actual damages
    sustained by him, whichever is greater, and reasonable
    attorney’s fees.
    Tenants argue that the duty to deliver possession under
    § 76-1426 is a duty to deliver possession to premises that are
    fit and habitable. They point out that § 76-1426 refers to “pos-
    session of the dwelling . . . as provided in section 76-1418”
    and that § 76-1418 describes “possession of the premises . . .
    in compliance with . . . section 76-1419,” which describes the
    landlord’s duty to put and keep the premises in a fit and habit-
    able condition. They argue that the allegations stated a claim
    that CHI breached its obligations under § 76-1418 to deliver fit
    and habitable premises.
    CHI does not deny that the URLTA requires landlords
    to deliver possession of habitable property, but argues that
    § 76-1426 pertains only to the commencement of the lease
    without possession and not to some later moment in time
    after tenants have accepted possession. After commencement
    and acceptance of possession, CHI asserts that tenants’ rights
    related to lack of habitability are governed by §§ 76-1419,
    76-1425, and 76-1427.
    [6] We agree with CHI. A tenant who accepts possession
    and lives on the property for several months thereafter does not
    have a claim under § 76-1418, because the duties described in
    § 76-1418 pertain to the “commencement” of the lease term. In
    contrast, the duties set forth in § 76-1419 to comply with mini-
    mum housing codes materially affecting health and safety and
    to “put and keep” the premises in a fit and habitable condition
    are not limited under the plain language to conditions arising
    after commencement of the lease term.
    For obvious public policy reasons, the URLTA discour-
    ages occupancy of premises that are not fit and habitable.
    Accordingly, the modifiers “in compliance with . . . . section
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    76-1419” or “as provided in section 76-1418” of “possession”
    are not contained in either the abatement provisions or the
    treble damages provisions of § 76-1426. Instead, § 76-1426
    describes that “rent abates until possession is delivered” and
    nowhere provides the remedy of rent abatement after posses-
    sion is delivered.
    Reading §§ 76-1418 and 76-1426 together and in pari mate-
    ria with other sections of the URLTA, we conclude that when a
    landlord attempts to deliver uninhabitable premises, § 76-1426
    provides that the tenant may refuse possession and that rent
    abates until possession in compliance with both the rental
    agreement and § 76-1419 is delivered. The tenant who has thus
    refused possession may either terminate the rental agreement
    with 5 days’ notice or demand performance. But a tenant who
    accepts possession and lives in uninhabitable premises does not
    have a claim under § 76-1418 and instead must proceed under
    other provisions of the URLTA.
    In this case, tenants alleged that possession of the rental
    property was delivered and that they lived there for approxi-
    mately 6 months. Under the facts alleged, the remedies pro-
    vided in §§ 76-1418 and 76-1426 do not apply. Habitability
    issues occurring or discovered during occupancy are addressed
    by §§ 76-1419, 76-1425, and 76-1427. We turn next to
    these statutes.
    Duty to M aintain Fit and
    H abitable Premises
    Section 76-1419 describes the duties of a landlord to keep
    the rental premises fit and habitable. It states in relevant part:
    (1) The landlord shall:
    (a) Substantially comply, after written or actual notice,
    with the requirements of the applicable minimum housing
    codes materially affecting health and safety;
    (b) Make all repairs and do whatever is necessary, after
    written or actual notice, to put and keep the premises in a
    fit and habitable condition;
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    ....
    (d) Maintain in good and safe working order and con-
    dition all electrical, plumbing, sanitary, heating, ventilat-
    ing, air conditioning, and other facilities and appliances,
    including elevators, supplied or required to be supplied
    by him or her;
    ....
    (f) Supply running water and reasonable amounts of
    hot water at all times . . . .
    If there exists a minimum housing code applicable to
    the premises, the landlord’s maximum duty under this
    section shall be determined by subdivision (1)(a) of this
    section. The obligations imposed by this section are not
    intended to change existing tort law in the state.
    The facts alleged in tenants’ complaint demonstrate breaches
    of CHI’s duties under § 76-1419. While § 76-1419(1)(a) and
    (b) require “written or actual notice” in order to establish the
    duty under those subsections, tenants alleged both written and
    actual notice of numerous housing code violations “materially
    affecting health and safety”11 and which CHI failed to repair
    so as to “put and keep the premises in a fit and habitable
    condition.”12 Furthermore, tenants alleged that CHI failed to
    maintain plumbing and electrical “in good and safe working
    order and condition,” as required by § 76-1419(d), or sup-
    ply “running water and reasonable amounts of hot water,” as
    required by § 76-1419(f ). Those provisions do not set forth
    notice as a precondition to those duties.
    CHI does not dispute that tenants sufficiently alleged that
    it breached its duties under § 76-1419, but argues that tenants
    have no remedy for the alleged breaches. CHI elaborates that
    tenants elected their statutory remedy under § 76-1427 and that
    they received such remedy in full when they chose to not pay
    rent in December 2016 and January 2017 while they lived with
    11
    § 76-1419(1)(a).
    12
    § 76-1419(1)(b).
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    relatives. CHI also argues that tenants failed to allege neces-
    sary statutory predicates to the remedies set forth in § 76-1425.
    We find no merit to these arguments.
    Section 76-1405 provides:
    (1) The remedies provided by the [URLTA] shall be
    so administered that the aggrieved party may recover
    appropriate damages. The aggrieved party has a duty to
    mitigate damages.
    (2) Any right or obligation declared by the [URLTA]
    is enforceable by action unless the provision declaring it
    specifies a different and limited effect.
    Section 76-1425 provides remedies for material noncom-
    pliance by the landlord either with the rental agreement or
    with § 76-1419 materially affecting health and safety. Section
    76-1425 states:
    (1) Except as provided in the [URLTA], if there is a
    material noncompliance by the landlord with the rental
    agreement or a noncompliance with section 76-1419
    materially affecting health and safety, the tenant may
    deliver a written notice to the landlord specifying the acts
    and omissions constituting the breach and that the rental
    agreement will terminate upon a date not less than thirty
    days after receipt of the notice if the breach is not rem-
    edied in fourteen days, and the rental agreement shall ter-
    minate as provided in the notice subject to the following.
    If the breach is remediable by repairs or the payment of
    damages or otherwise and the landlord adequately rem-
    edies the breach prior to the date specified in the notice,
    the rental agreement will not terminate. If substantially
    the same act or omission which constituted a prior non-
    compliance of which notice was given recurs within six
    months, the tenant may terminate the rental agreement
    upon at least fourteen days’ written notice specifying the
    breach and the date of termination of the rental agree-
    ment. The tenant may not terminate for a condition
    caused by the deliberate or negligent act or omission of
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    the tenant, a member of his or her family, or other person
    on the premises with his or her consent.
    (2) Except as provided in the [URLTA], the tenant may
    recover damages and obtain injunctive relief for any non-
    compliance by the landlord with the rental agreement or
    section 76-1419. If the landlord’s noncompliance is will-
    ful the tenant may recover reasonable attorney’s fees. If
    the landlord’s noncompliance is caused by conditions or
    circumstances beyond his or her control, the tenant may
    not recover consequential damages, but retains remedies
    provided in section 76-1427.
    (3) The remedy provided in subsection (2) of this sec-
    tion is in addition to any right of the tenant arising under
    subsection (1) of this section.
    (4) If the rental agreement is terminated, the landlord
    shall return all prepaid rent and security recoverable by
    the tenant under section 76-1416.
    However, if the material noncompliance with § 76-1419
    involves the deliberate or negligent failure to supply running
    water, hot water, heat, or essential services, then, alternatively
    to the remedies set forth in § 76-1425, the tenant may proceed
    under § 76-1427. Section 76-1427 states in full:
    (1) If contrary to the rental agreement or section
    76-1419 the landlord deliberately or negligently fails to
    supply running water, hot water, or heat, or essential serv­
    ices, the tenant may give written notice to the landlord
    specifying the breach and may:
    (a) Procure reasonable amounts of hot water, running
    water, heat and essential services during the period of
    the landlord’s noncompliance and deduct their actual and
    reasonable cost from the rent;
    (b) Recover damages based upon the diminution in the
    fair rental value of the dwelling unit; or
    (c) Procure reasonable substitute housing during the
    period of the landlord’s noncompliance, in which case
    the tenant is excused from paying rent for the period of
    the landlord’s noncompliance.
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    In addition to the remedy provided in subdivisions (a)
    and (c), if the failure to supply is deliberate, the tenant
    may recover the actual and reasonable cost or fair and
    reasonable value of the substitute housing not in excess
    of an amount equal to the periodic rent, and in any case
    under this subsection reasonable attorney’s fees.
    (2) If the tenant proceeds under this section, he may
    not proceed under section 76-1425 as to that breach.
    (3) The rights under this section do not arise until the
    tenant has given written notice to the landlord or if the
    condition was caused by the deliberate or negligent act or
    omission of the tenant, a member of his family, or other
    person on the premises with his consent. This section is
    not intended to cover circumstances beyond the land-
    lord’s control.
    CHI is correct that the list of possible remedies in
    § 76-1427(1)(a), (b), and (c) are listed in the alternative and
    that § 76-1427(2) provides that a tenant who proceeds under
    § 76-1427 “may not proceed under section 76-1425 as to that
    breach.” But to the extent CHI’s motion to dismiss sufficiently
    asserted the affirmative defense of election of remedies,13 we
    conclude that the doctrine does not support the dismissal of
    tenants’ complaint.
    [7] Election of remedies is an ancient doctrine created by the
    courts.14 The doctrine of election of remedies is a somewhat
    vague notion lying somewhere between the areas occupied by
    the doctrines of equitable estoppel and claim preclusion.15 It
    is largely a rule of policy to prevent vexatious litigation.16 It
    requires a plaintiff to choose between inconsistent remedies for
    13
    See deNourie & Yost Homes v. Frost, 
    295 Neb. 912
    , 
    893 N.W.2d 669
         (2017).
    
    14 Port. v
    . Smith, 
    240 Neb. 928
    , 
    486 N.W.2d 846
    (1992).
    15
    See Bryant Heating v. United States Nat. Bank, 
    216 Neb. 107
    , 
    342 N.W.2d 191
    (1983).
    16
    
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    redress of a single injury.17 The basic purpose of the doctrine
    of election of remedies is to prevent a plaintiff from receiv-
    ing double recovery for a single injury or compensation that
    exceeds the damages sustained.18 It is considered a harsh rule
    which should not be applied in an oppressive manner.19
    The doctrine of election of remedies normally does not pro-
    vide grounds for dismissing a complaint under § 6-1112(b)(6)
    for failure to state a claim. A claim to relief consists of (1)
    a primary right possessed by the plaintiff, (2) a correspond-
    ing primary duty devolving upon the defendant, (3) a delict
    or wrong done by the defendant which consisted in a breach
    of such primary right and duty, (4) a remedial right in favor
    of the plaintiff, (5) a remedial duty resting on the defendant
    springing from this delict, and (6) the remedy or relief itself.20
    To prevail against a motion to dismiss for failure to state a
    claim, a plaintiff must allege sufficient facts, accepted as true,
    to state a claim for relief that is plausible on its face.21 In cases
    in which a plaintiff does not or cannot allege specific facts
    showing a necessary element, the factual allegations, taken as
    true, are nonetheless plausible if they suggest the existence of
    the element and raise a reasonable expectation that discovery
    will reveal evidence of the element or claim.22 While one of
    multiple alleged causes of action may be dismissed for failure
    to state a claim,23 one of multiple remedies pled for a single
    
    17 Port. v
    . Smith, supra note 14.
    18
    See, Genetti v. Caterpillar, Inc., 
    261 Neb. 98
    , 
    621 N.W.2d 529
    (2001);
    In re 2007 Appropriations of Niobrara River Waters, 
    278 Neb. 137
    , 
    768 N.W.2d 420
    (2009).
    19
    Vowers & Sons, Inc. v. Strasheim, 
    254 Neb. 506
    , 
    576 N.W.2d 817
    (1998).
    20
    City of Alliance v. Cover-Jones Motor Co., 
    154 Neb. 900
    , 
    50 N.W.2d 349
         (1951).
    21
    Peterson v. Kings Gate Partners, 
    290 Neb. 658
    , 
    861 N.W.2d 444
    (2015).
    22
    
    Id. 23 See,
    e.g., Zawaideh v. Nebraska Dept. of Health & Human Servs., 
    285 Neb. 48
    , 
    825 N.W.2d 204
    (2013).
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    breach within the context of a single cause of action is not the
    proper subject of dismissal under § 6-1112(b)(6) for failure to
    “state a claim.”
    [8,9] It is true that at the pleading stage in a lawsuit, a party
    may be required to elect between two inconsistent theories of
    recovery, such as when rescission of a contract would preclude
    damages for breach of the contract.24 But there was no order
    in this case requiring tenants to elect a theory of recovery.25
    Moreover, when the election is between remedies with differ-
    ent elements of proof under the same complaint, we have held
    that a plaintiff can attempt to prove both theories and need
    only elect one for the purpose of recovery in the event that the
    trier of fact finds both theories were proved.26 This is because
    a futile attempt to assert a nonexistent remedy does not, under
    the doctrine of election of remedies, preclude a resort to a legal
    remedy or operate as an estoppel to assert it.27 So long as the
    plaintiff does not ultimately obtain two recoveries for the same
    harm,28 the doctrine of election of remedies does not generally
    prevent the plaintiff from pleading remedies that are mutu-
    ally exclusive.
    CHI nevertheless proposes that tenants’ act of living rent
    free with relatives while not paying rent to CHI was an elec-
    tion of the remedy of abatement under § 76-1427, which ten-
    ants have already fully realized, and thus they can no longer
    state any claim for relief. There are several problems with
    this argument.
    24
    See Platte Valley Fed. Sav. & Loan Assn. v. Gray, 
    226 Neb. 135
    , 
    409 N.W.2d 617
    (1987).
    25
    See Southwest Trinity Constr. v. St. Paul Fire & Marine, 
    243 Neb. 55
    , 
    497 N.W.2d 366
    (1993).
    26
    See Genetti v. Caterpillar, Inc., supra note 18. See, also, 28A C.J.S.
    Election of Remedies § 6 (2008).
    27
    Russo v. Williams, 
    160 Neb. 564
    , 
    71 N.W.2d 131
    (1955).
    28
    See Stephen S. Ashley, Bad Faith Actions Liability & Damages § 7:17 (2d
    ed. 2018), Westlaw (database updated Sept. 2018).
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    First, pursuing a remedy is an irrevocable election only if
    pursued to a determinative and advantageous conclusion to
    the irreparable injury of the other party.29 Even commencing
    suit for one remedy has been held not to be a manifesta-
    tion of the plaintiff’s choice of that remedy, “‘so long as the
    defend­ant has not so altered his position as to make it unjust
    to permit the change.’”30 Tenants’ act of finding suitable hous-
    ing from November 18, 2016, until March 12, 2017, when
    the Housing Division would not allow anyone to occupy the
    rental property, and not paying rent during that time, was not
    an irrevocable election of the remedy of abatement under
    § 76-1427(1)(c).
    Nor is it true that under the alleged facts, the remedies
    provided under § 76-1427 were fully realized. Section
    76-1427(1)(c) expressly states that tenants are “excused
    from paying rent for the period of the landlord’s noncompli-
    ance.” Yet, CHI allegedly demanded that tenants pay rent
    for November 2016 and February 2017, and tenants alleged
    that they did so, even though during approximately one-half
    of November and nearly all of February, they were living in
    substitute housing. CHI fails to explain how tenants have no
    right to enforce the provision in § 76-1427(1)(c) that they be
    excused from paying rent while living in substitute housing
    and while CHI deliberately or negligently failed to supply run-
    ning water, hot water, heat, or essential services. CHI also fails
    to explain why tenants did not sufficiently allege facts showing
    that they could recover reasonable attorney fees pursuant to
    § 76-1427(1).
    [10] Furthermore, tenants’ complaint alleges more than one
    breach and more than one injury with respect to the duties set
    forth by § 76-1419. Election of remedies applies only when
    there are inconsistent remedies for redress of the same single
    29
    See Porter v. Smith, supra note 14. See, also, Bratt v. Wishart, 
    136 Neb. 899
    , 
    287 N.W. 769
    (1939).
    30
    Bratt v. Wishart, supra note 
    29, 136 Neb. at 904
    , 287 N.W. at 771.
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    injury.31 Likewise, § 76-1427(2) states that resort to the rem-
    edies of § 76-1427 precludes proceeding under § 76-1425 “as
    to that breach.” (Emphasis supplied.) Before tenants were
    allegedly forced to vacate the premises because of a major
    electrical hazard and other code violations, they allegedly lived
    for approximately 6 months with water leaks and mold. The
    mold exposure allegedly caused medical complications for ten-
    ants’ child. The allegations indicate that tenants notified CHI
    of the problem, as did the Douglas County Health Department.
    Tenants did not seek alternative suitable housing during that
    time. Instead, they paid full rent and otherwise did not exercise
    any of the remedies set forth in § 76-1427.
    In fact, as to the water leak and mold, such noncompliance
    with § 76-1419 was not a failure to supply “running water, hot
    water, or heat, or essential services,” such that § 76-1427(1)
    could even apply. Therefore, as to CHI’s failure to correct the
    water leak and mold, tenants do not have a choice between
    §§ 76-1427 and 76-1425, which could lead to an election of
    remedies. Instead, they are limited to § 76-1425.
    And we disagree with the district court’s conclusion that
    the complaint presented an insuperable bar to any relief under
    § 76-1425. First, tenants’ failure to provide CHI with a “14/30
    day Notice” of termination does not preclude all relief under
    § 76-1425.
    The underlying conclusion regarding the lack of a 14/30-
    day notice appears to have been that tenants cannot recover
    their security deposit pursuant to § 76-1416 if the lease was
    not terminated under the URLTA. We pause to note that while
    tenants did not allege facts constituting a 14/30-day notice,
    “termination of the tenancy” referred to in § 76-1416(2)
    can occur in many ways other than the process described
    by § 76-1425. For instance, a tenant who claims a breach of
    § 76-1419, but cannot show termination through a 14/30-day
    31
    See, Porter v. Smith, supra note 14. See, also, deNourie & Yost Homes v.
    Frost, supra note 13.
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    notice, can nevertheless recover the security deposit once the
    term of the lease has expired, so long as the security deposit
    has not been forfeited.
    In any event, there are other remedies provided by
    § 76-1425 which do not require a 14/30-day notice. Section
    76-1425(2) provides that “the tenant may recover damages
    . . . for any noncompliance by the landlord with the rental
    agreement or section 76-1419.” Further, “If the landlord’s
    noncompliance is willful the tenant may recover reasonable
    attorney’s fees.”32 Under the plain language of the statute,
    these remedies are “in addition to any right of the tenant aris-
    ing under subsection (1).”33 To the extent the district court
    reasoned that a 14/30-day notice is a prerequisite to dam-
    ages or attorney fees under § 76-1427(2), it erred. Nothing
    in subsection (2) indicates that the particular notice described
    in subsection (1) is a prerequisite for the relief described in
    subsection (2).
    [11] Interpreting § 76-1425(2) as requiring a 14/30-day
    notice as a prerequisite to damages and attorney fees is not
    only inconsistent with the plain language of § 76-1425(2),
    which does not require a 14/30-day notice, but also with
    § 76-1419, which requires written or actual notice before a
    landlord has a duty to comply with applicable minimum hous-
    ing codes materially affecting health and safety or to make
    all repairs and do whatever is necessary to put and keep the
    premises in a fit and habitable condition. It would be a strained
    reading of the statutory scheme to imply that, in addition to the
    written or actual notice under § 76-1419, a tenant must give a
    14/30-day notice—not just to terminate the lease, but also to
    have a right to damages and attorney fees under § 76-1425(2).
    We hold that so long as a tenant has given notice when required
    by § 76-1419, a tenant can seek damages or injunctive relief
    under § 76-1425(2) without sending notice under § 76-1425(1)
    32
    § 76-1425(2).
    33
    § 76-1425(3).
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    specifying that the rental agreement will terminate upon a date
    not less than 30 days after receipt of the notice of the breach,
    if not remedied within 14 days.
    [12] We also conclude that the district court erred in read-
    ing § 76-1425(2) as providing the remedy of damages only
    if the tenant also seeks injunctive relief. Section 76-1425(2)
    states in relevant part that “the tenant may recover damages
    and obtain injunctive relief for any noncompliance.” While
    the district court was correct that “and” is a conjunction and
    its function is to indicate a connection or addition34 between
    “damages” and “injunctive relief,” it does not follow that the
    tenant must choose to pursue both in order to pursue one.
    Rather, we agree with tenants that the conjunctive “and” in
    § 76-1425(2) “serves to vest a tenant with two distinct options
    for relief” and does not require that both be pursued in order
    to pursue either.35
    At most, the meaning of § 76-1425(2) in this regard is
    ambiguous. In construing a statute, an appellate court will,
    if possible, try to avoid a construction which would lead to
    absurd, unconscionable, or unjust results.36 Neither CHI nor
    the lower court has explained how it would be just to require
    tenants to obtain injunctive relief in order to recover damages
    when a landlord breaches the duties set forth in § 76-1419
    relating to fitness and habitability. We can envision situations
    where damages have been incurred but where, for exam-
    ple, injunctive relief is moot by the time a tenant brings an
    action under the URLTA. To interpret a tenant’s right to dam-
    ages under § 76-1425(2) as contingent upon injunctive relief
    and injunctive relief as contingent upon an award of dam-
    ages would allow landlords to fortuitously escape liability for
    breaches of § 76-1419. Such a reading would thus be contrary
    34
    See “And,” Merriam-Webster.com, https://www.merriam-webster.com/
    dictionary/and (last visited Mar. 27, 2019).
    35
    Brief for appellants at 17.
    36
    In re Estate of Eickmeyer, 
    262 Neb. 17
    , 
    628 N.W.2d 246
    (2001).
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    to the purpose of the URLTA to encourage the landlord to
    maintain and improve the quality of housing.
    We find that the complaint presents no insuperable bar to
    relief for any of the claimed breaches of the duties set forth by
    § 76-1419.
    R etaliation
    We turn to tenants’ cause of action for retaliation under
    § 76-1439. The complaint alleged that the rental property is
    still under a vacate order and that CHI, in retaliation for ten-
    ants’ complaints to the Douglas County Health Department
    and the Housing Division, demanded tenants vacate or pay
    rent during periods they were unable to live on the premises.
    We hold that tenants thereby alleged sufficient facts to state a
    cause of action for retaliation under § 76-1439.
    Section 76-1439 provides:
    (1) Except as provided in this section, a landlord may
    not retaliate by increasing rent or decreasing services or
    by bringing or threatening to bring an action for posses-
    sion after:
    (a) The tenant has complained to a government agency
    charged with responsibility for enforcement of a mini-
    mum building or housing code of a violation applicable
    to the premises materially affecting health and safety[.]
    ....
    (2) If the landlord acts in violation of subsection (1),
    the tenant is entitled to the remedies provided in section
    76-1430 and has a defense in action against him for pos-
    session . . . .
    (3) Notwithstanding subsections (1) and (2), a landlord
    may bring an action for possession if:
    (a) The violation of the applicable minimum building
    or housing code was caused primarily by lack of reason-
    able care by the tenant or other person in his household or
    upon the premises with his consent;
    (b) The tenant is in default in rent; or
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    (c) Compliance with the applicable minimum building
    or housing code requires alteration, remodeling, or demo-
    lition which would effectively deprive the tenant of use
    of the dwelling unit.
    The maintenance of the action does not release the
    landlord from liability under subsection (2) of section
    76-1425.
    Section 76-1430, referred to by § 76-1439, describes that
    the tenant may recover possession or terminate the rental
    agreement and, in either case, recover an amount equal
    to three months’ periodic rent as liquidated damages, and
    a reasonable attorney’s fee. If the rental agreement is
    terminated the landlord shall return all prepaid rent and
    security recoverable under section 76-1416.
    [13] Nothing in these sections requires a specific notice of
    termination of a rental agreement. CHI argues, and the district
    court seemed to believe, that termination under § 76-1439 can-
    not be recognized without a separate action for termination. It
    was undisputed that tenants did not recover possession. Neither
    §§ 76-1430 and 76-1439 nor any other provision of the URLTA
    indicates that a separate action for termination of a rental
    agreement is a prerequisite to termination under the URLTA.
    The only reference to maintenance of an action in the URLTA
    is the reference to an action for possession by the landlord
    against a tenant wrongfully in possession or by a tenant against
    another party wrongfully in possession.37
    Other than setting forth the right to terminate a rental
    agreement under various sections already discussed and pro-
    viding in § 76-1405(2) that “[a]ny right or obligation declared
    by the [URLTA] is enforceable by action unless the provi-
    sion declaring it specifies a different and limited effect,” the
    URLTA nowhere refers to an “action” for termination. Indeed,
    we have never recognized a separate cause of action for ter-
    mination of a rental agreement, as such. To the contrary, in
    37
    See § 76-1439.
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    the context of determining when the statute of limitations
    begins to run for actions for possession, we have referred to
    termination of a lease as arising as a factual matter pursuant
    to the provisions of the URLTA before any action has been
    brought.38 Similarly, under common law, leases terminated
    automatically upon various defaults under self-executing con-
    tractual provisions without any action being required by lessor
    or lessee.39 Statutes that effect a change in common law or
    take away a common-law right should be strictly construed,
    and a construction that restricts or removes a common-law
    right should not be adopted unless the plain words of the stat-
    ute compel it.40
    Tenants’ complaint does not present an insuperable bar to
    relief under § 76-1439. Therefore, the district court erred in
    dismissing tenants’ alleged fourth cause of action.
    Ouster
    Finally, we find that the district court erred in concluding
    that tenants failed to state a claim for ouster in violation of
    § 76-1430. Section 76-1430 provides in relevant part that a
    tenant may take action “[i]f the landlord unlawfully removes
    or excludes the tenant from the premises or willfully and
    wrongfully diminishes services to the tenant by interrupting
    or causing the interruption of electric, gas, water or other
    essential service to the tenant . . . .” The allegations indicate
    that water services were interrupted as a result of plumbing
    repairs which were in progress. Tenants also alleged that CHI
    had unlawfully told them to vacate in October 2016 in retali-
    ation for their reports to the Housing Division. These allega-
    tions do not demonstrate an insuperable bar to relief under
    § 76-1430.
    38
    See Blankenau v. Landess, 
    261 Neb. 906
    , 
    626 N.W.2d 588
    (2001). See,
    also, Pollock v. Whipple, 
    33 Neb. 752
    , 
    51 N.W. 130
    (1892).
    39
    See Valentine Oil Co. v. Powers, 
    157 Neb. 71
    , 
    59 N.W.2d 150
    (1953).
    40
    See Tadros v. City of Omaha, 
    273 Neb. 935
    , 
    735 N.W.2d 377
    (2007).
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    CONCLUSION
    Accepting as true all facts that are well pled and the proper
    and reasonable inferences of law and fact that may be drawn
    therefrom, the complaint states plausible claims for relief under
    §§ 76-1419, 76-1430, and 76-1439 of the URLTA for retalia-
    tory conduct, ouster, and failure to maintain fit and habitable
    premises, but not under §§ 76-1418 and 76-1426 for failure to
    deliver possession. We affirm the district court’s order of dis-
    missal as to tenants’ first cause of action, but reverse as to their
    alleged second, third, and fourth causes of action.
    A ffirmed in part, and in part reversed.