Wood v. Bass , 30 Neb. Ct. App. 391 ( 2021 )

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WOOD v. BASS
Cite as 30 Neb. App. 391Amber J. Wood, appellant, v.
Kenneth A. Bass, appellee.
___ N.W.2d ___
Filed November 16, 2021. No. A-21-145.
1. Courts: Appeal and Error. The district court and higher appellate
courts generally review appeals from the county court for error appear-
ing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.
3. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
4. Issue Preclusion: Appeal and Error. The applicability of issue preclu-
sion is a question of law on which an appellate court reaches a conclu-
sion independent of the court below.
5. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
6. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
7. Trial: Parties: Pleadings. Ordinarily, a party may at any time invoke
the language of his or her opponent’s pleadings on an issue being tried
as rendering certain facts indisputable.
8. Pleadings: Waiver. The pleadings in a cause are, for the purposes of use
in that suit, not mere ordinary admissions but judicial admissions and, as
such, are a waiver of all controversy insofar as the opponent may desire
to take advantage of them.
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Cite as 30 Neb. App. 3919. Pleadings. Matters contained in pleadings in other cases are simple
admissions.
10. Evidence. A simple admission is one that is admissible as evidence of
the facts alleged therein and may be introduced and considered the same
as any other evidence.
11. Issue Preclusion. Issue preclusion bars the relitigation of a finally
determined issue that a party had a prior opportunity to fully and
fairly litigate.
12. Judgments: Issue Preclusion. Issue preclusion applies where (1) an
identical issue was decided in a prior action, (2) the prior action resulted
in a final judgment on the merits, (3) the party against whom the doc-
trine is to be applied was a party or was in privity with a party to the
prior action, and (4) there was an opportunity to fully and fairly litigate
the issue in the prior action.
13. Issue Preclusion. Issue preclusion applies only to issues actually
litigated.
Appeal from the District Court for Sarpy County, George
A. Thompson, Judge, on appeal thereto from the County
Court for Sarpy County, Todd J. Hutton, Judge. Judgment of
District Court affirmed.
Michael F. Polk, of Watke, Polk & Sena, L.L.P., for appellant.
Jonathan M. Brown, of Walentine O’Toole, L.L.P., for
appellee.
Riedmann, Bishop, and Arterburn, Judges.
Arterburn, Judge.
INTRODUCTION
Amber J. Wood appeals from a decision of the district
court for Sarpy County which affirmed the county court’s
determination that Wood was not entitled to relief pursuant to
her action brought under the Disposition of Personal Property
Landlord and Tenant Act (Act), Neb. Rev. Stat. §§ 69‑2301
to 69‑2314 (Reissue 2018 & Cum. Supp. 2020). The county
court dismissed the case, finding that Wood did not establish
that she and Kenneth A. Bass had formed a landlord‑tenant
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Cite as 30 Neb. App. 391relationship. As a result, she was not entitled to relief under
the Act. The district court affirmed. Upon appeal to this court,
Wood argues that the lower courts erred in determining that a
landlord‑tenant relationship did not exist between the parties.
For the reasons set forth below, we affirm.
BACKGROUND
Wood and Bass met in 2013 and became involved in an
“arranged” and, at times, romantic relationship. In 2016, Bass
invited Wood and her daughter to move into his residence with
him. The parties’ relationship soured thereafter and ended early
in 2017. Bass left the residence temporarily and sought to
remove Wood from the residence. On March 29, Bass provided
Wood with a “30 Day Notice to Terminate Lease,” requesting
Wood to vacate the residence by May 1. On June 14, Bass initi-
ated eviction proceedings by filing a complaint for restitution.
In October, Wood vacated the residence involuntarily, but left
a significant amount of her personal property inside. Bass did
not initially grant Wood access to the residence in order for
her to retrieve her property. Property belonging to Wood was
placed in the garage by Bass and representatives of Wood were
then allowed to remove it. However, once she was able to see
her property, Wood noticed that some items were damaged and
other items she believed to be hers were missing.
On October 12, 2017, Wood filed a complaint pursuant to
the Act requesting damages equal to the value of the unre-
turned personal property, which she asserted was approxi-
mately $110,202. Attached to her complaint was a list of the
property that she alleged was still in Bass’ possession, includ-
ing multiple beds, televisions, area rugs, furniture, and other
items which remained in Bass’ residence. Bass filed an answer
denying the allegations and filed a counterclaim alleging that
Wood was wrongfully withholding Bass’ personal property
and requesting that Wood return any of his personal property
in her possession. Trial was ultimately held on June 29, 2020,
wherein both Wood and Bass testified.
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Cite as 30 Neb. App. 391Wood described her relationship with Bass. She explained
that she and Bass had an “arranged” relationship, wherein
she would be a companion to Bass for trips and other events.
In exchange, Bass would purchase gifts for her. She also
explained that she and Bass engaged in physical intimacy and
professed that they loved each other. In 2016, Bass approached
Wood about moving into his residence.
Wood testified as to her understanding of the agreement
that persuaded her to move into Bass’ residence. Wood
explained that when Bass approached her about moving into
his residence in 2016, they had not been speaking to each
other. According to Wood, she and Bass reached an agreement
wherein she and her daughter would live in Bass’ house until
Wood’s daughter graduated from high school, even if their
relationship ended. She further explained that to live there,
she agreed to be involved with Bass exclusively, to continue
to be his companion for events and trips, and to fulfill various
household duties. She conceded that she did not sign a lease
prior to moving in.
Bass also testified regarding the arrangement he reached
with Wood to live in his residence. Bass explained that he
asked Wood to live with him in an effort to reconcile their
relationship because he considered himself to be in love with
Wood. He did not have an expectation that Wood would pay
money for rent nor did he have her sign a lease. He testified
that Wood never paid any money for rent. He noted that while
Wood lived at the residence, he continued to live there and did
not feel like he was excluded from the residence. When their
romantic relationship ended in 2017, he attempted to remove
her from his residence. He consulted a lawyer about the quick-
est way to remove Wood. He was advised that the quickest way
was to give her a 30‑day notice to terminate the lease and to
file a complaint for restitution of the premises. However, Bass
explained that when he signed the 30‑day notice to terminate
the lease, he did not believe that he was Wood’s landlord.
Wood testified that prior to Bass’ efforts to remove her,
Bass had left the residence. She received the 30‑day notice to
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Cite as 30 Neb. App. 391terminate the lease in March 2017. The 30‑day notice to termi-
nate the lease stated the following:
Pursuant to Neb. Rev. Stat. § 76‑1437(2), you are
hereby notified that effective May 1, 2017, your land-
lord, . . . Bass is terminating the month to month tenancy
regarding the residence . . . . As a result, you are required
to vacate and surrender possession of the premises. If you
fail to do so, legal proceedings will be instituted against
you to recover possession of the premises, to recover
damages, and to recover attorney fees.
YOU MUST VACATE THE RENTAL PREMISES
BY NO LATER THAN MAY 1, 2017[.]
However, Wood did not leave the residence by May 1, 2017,
because, as she testified at trial, she believed that she had an
agreement to live in the house even if the relationship failed.
Bass then filed a complaint for restitution in June 2017, in
which he attached the 30‑day notice to terminate the lease.
His complaint for restitution stated that “[p]ursuant to a prior
agreement, [Wood] is residing at [Bass’] residence” and prayed
for relief including possession of the premises. Although our
record contains multiple motions to continue and orders with
respect to the motions to continue, our record does not reflect
if there was ever a restitution hearing or a judgment entered
which granted possession of the residence to Bass. Wood
testified that she could not remember if there was a hearing
regarding restitution in the eviction proceedings because there
had been so many delays. Nevertheless, Wood testified that
the police removed her daughter from the residence in October
2017 and that Wood was also barred from the residence. After
leaving the residence, she continued to have discussions with
Bass regarding possible arrangements if she wanted to stay in
the house. When she was barred from the residence, she left
a significant amount of property behind. Wood testified that
Bass would not, initially, let her back into the residence to
retrieve her personal property. She emailed Bass a list of prop-
erty items that she wanted to retrieve. Although at trial Wood
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Cite as 30 Neb. App. 391could not remember the date, she testified she was eventually
allowed to retrieve the property Bass had placed in the garage.
Wood’s uncle testified that he was allowed to go into the house
and retrieve some items belonging to Wood’s daughter.
When Wood arrived at the residence, she observed that
much of her property had been relocated to the garage. Upon
opening the garage door, she observed that her property was
in boxes and storage tubs that were stacked on top of each
other. In addition, she observed damage to some of the items of
property, including to some of her furniture. She created a list
of property that was missing from the garage or that was dam-
aged, which list was received into evidence. According to this
list, she was missing numerous items of furniture, electronics,
jewelry, and other items.
Bass testified that all of Wood’s property was removed
from the house and placed in the garage on October 20, 2017.
At that point, the property was made available to Wood. He
testified that there was never an expectation Wood would pay
rent and that no lease existed. He was never precluded from
entering the residence, but did seek to remove Wood once the
relationship ended. While he agreed that he signed documents
identifying himself as “landlord,” he never believed that the
nature of their relationship was that of a landlord and tenant.
He testified that he signed the documents on the advice of for-
mer counsel.
The county court determined that, in order for Wood to
recover under §§ 69‑2311 and 69‑2312 of the Act, there must
be a landlord‑tenant relationship, which Wood failed to prove.
The county court relied on Reeder v. Reeder, 217 Neb. 120,
348 N.W.2d 832 (1984), in determining that the parties did
not impliedly create a landlord‑tenant relationship, but instead
lived together pursuant to a mutual agreement to live infor-
mally with each other as long as their interests remained simi-
lar. The county court dismissed Wood’s complaint to recover
damages and dismissed Bass’ counterclaim requesting his per-
sonal property.
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Cite as 30 Neb. App. 391Wood appealed to the district court alleging that the county
court erred in dismissing Wood’s complaint. Specifically,
Wood alleged that the county court erred in failing to find
Wood and Bass were in a landlord‑tenant relationship. Wood
argued that Bass was precluded from asserting that there was
no landlord‑tenant relationship because he judicially admit-
ted that he was the landlord in the course of the eviction
proceedings. Wood also argued that the eviction proceedings
conclusively established that Bass was a landlord and Wood
was a tenant; thus, Bass was estopped, as a matter of law, from
relitigating the tenancy issues between the parties.
The district court affirmed the decision of the county court
finding that Wood and Bass did not have a landlord‑tenant rela-
tionship. First, the district court found that Wood failed to dem-
onstrate the existence of a rental agreement, that the premises
were occupied for rent, and that the premises were occupied by
Wood to the exclusion of others. The district court also found
that while an express agreement to create a landlord‑tenant
relationship is not necessary to form a landlord‑tenant relation-
ship, the evidence must indicate that the parties intended to
impliedly create such an arrangement, which Wood failed to do.
The district court further found that the prior eviction proceed-
ings were not dispositive in determining that a ­landlord‑tenant
relationship was formed. In addition, the district court noted
that Wood’s collateral estoppel argument failed because there
was not a final judgment of the eviction proceedings in the
record. The district court concluded that the county court’s
decision was supported by competent evidence and was neither
arbitrary, capricious, nor unreasonable.
Wood now appeals to this court.
ASSIGNMENTS OF ERROR
Wood assigns and argues that the lower courts erred in deter-
mining that no landlord‑tenant relationship formed between
Wood and Bass and in failing to find that Bass was precluded
from relitigating and denying that a landlord‑tenant relation-
ship existed.
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Cite as 30 Neb. App. 391STANDARD OF REVIEW
[1,2] The district court and higher appellate courts generally
review appeals from the county court for error appearing on
the record. Schaefer Shapiro v. Ball, 305 Neb. 669, 941 N.W.2d
755 (2020). When reviewing a judgment for errors appearing
on the record, the inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable. Id.[3] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. Egan
v. County of Lancaster, 308 Neb. 48, 952 N.W.2d 664 (2020).
[4] The applicability of issue preclusion is a question of law
on which an appellate court reaches a conclusion independent
of the court below. Jordan v. LSF8 Master Participation Trust,
300 Neb. 523, 915 N.W.2d 399 (2018).
ANALYSIS
Wood’s complaint requested damages for the lost and dam-
aged property pursuant to the Act. Section 69‑2311 of the Act
requires a residential landlord to surrender to a residential
tenant any personal property not owned by the landlord that
has been left on the premises after the tenant has vacated the
residential premises and the tenant has requested the return of
the property. Accordingly, Wood must show that Bass was a
landlord and Wood was a tenant for her to receive the statutory
relief she requested under the Act.
Language of Act.
[5,6] 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. In re Adoption of Yasmin S., 308
Neb. 771, 956 N.W.2d 704 (2021). In construing a statute, a
court must determine and give effect to the purpose and intent
of the Legislature as ascertained from the entire language
of the statute considered in its plain, ordinary, and popular
sense. Id.- 399 -
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Cite as 30 Neb. App. 391Under the Act, the definition of “[l]andlord” includes an
owner of furnished premises for rent. See § 69‑2302(1). The
definition of “[t]enant” includes a person entitled under a
rental agreement to occupy any premises for rent to the exclu-
sion of others when such premises are used as a dwelling. See
§ 69‑2302(6). The term “rent” is not defined under the Act;
however, Nebraska appellate courts often turn to dictionaries
to ascertain a word’s plain and ordinary meaning. See McEwen
v. Nebraska State College Sys., 27 Neb. App. 896, 936 N.W.2d
786 (2019). Merriam‑Webster’s Collegiate Dictionary 1054
(11th ed. 2020) defines “rent” as usually a “fixed periodical
return made by a tenant or occupant of property to the owner
for the possession and use thereof”; especially, “an agreed sum
paid at fixed intervals by a tenant to the landlord.”
Thus, we are tasked with determining whether Wood is a
tenant and Bass is a landlord based on the foregoing defini-
tions. To show that Wood is a tenant, she would need to show
she is entitled under a rental agreement to occupy Bass’ house
for rent to the exclusion of others. We note that Wood failed to
produce any written rental agreement or lease. Bass testified
that Wood did not sign a lease. Wood testified that she and Bass
had an oral agreement that she could live in the residence with
her daughter. In exchange, Wood would do various household
duties, be a companion to Bass, and be with Bass exclusively.
Wood admitted that she never paid any money to Bass to live
there. Moreover, we note, as we did above, that Wood did not
have exclusive use of the residence. Only after the romantic
relationship ended between the parties did Bass attempt to
remove Wood from the residence. Accordingly, we find that
Wood failed to establish that she was a tenant and Bass was a
landlord under the statutory definitions found in the Act.
Implied Landlord‑Tenant Relationship.
We also find, as did the county court and district court, that
a landlord‑tenant relationship between Wood and Bass cannot
be implied from the facts of this case. In Reeder v. Reeder,
217 Neb. 120, 348 N.W.2d 832 (1984), the Nebraska Supreme
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Cite as 30 Neb. App. 391Court was tasked with determining whether a landlord‑tenant
relationship was formed when one of the appellants allowed his
brother to live in the appellants’ house without an express con-
tractual agreement. The Supreme Court explained that while
the status of landlord and tenant generally arises from contract,
an express agreement to create a landlord‑tenant relationship is
not necessary. See id. Rather, the evidence must indicate that
the parties intended to impliedly create such an arrangement,
including that the tenant acquired certain rights and the land-
lord assumed certain obligations. See id. The Supreme Court,
citing Friend v. Gem International, Inc., 476 S.W.2d 134 (Mo.
App. 1971), noted that the essentials of the landlord‑tenant
relationship are (1) a reversion in the landlord; (2) the creation
of an estate in the tenant, either at will or for a term less than
that for which the landlord holds; (3) the transfer of exclusive
possession and control of the premises to the tenant; and (4) a
contract, either express or implied between the parties. Reeder
v. Reeder, supra. The Supreme Court ultimately concluded that
no implied landlord‑tenant relationship could be implied based
on the facts of that case. See id.Here, both the county court and the district court determined
that the parties did not impliedly create a landlord‑tenant
relationship. We agree with their conclusion. Although Bass
invited Wood to live with him, he did so in an effort to rec-
oncile their relationship. He did not ask Wood to sign a lease
nor did he ask her to pay rent. Bass only sought to have Wood
removed from the residence after their romantic relationship
ended. While according to Wood, Bass may have left the resi-
dence on a temporary and voluntary basis when their relation-
ship faltered, there is no evidence that he was excluded there-
from. Thus, there was not a transfer of exclusive possession
and control of the premises. Rather, the evidence supports that
Wood and Bass lived with each other and when the relationship
ended, Bass sought to reassert his exclusive ownership interest
in the premises. Accordingly, the county court’s determination
conforms to the law and was supported by competent evidence
adduced at trial.
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Cite as 30 Neb. App. 391Admissions Made by Bass.
Notwithstanding her other arguments as to the establish-
ment of a landlord‑tenant relationship, Wood argues that in
the prior eviction proceedings, Bass judicially admitted that he
was Wood’s landlord and that the parties had a prior agreement
which allowed Wood to live in the residence owned by Bass.
Based on these purported admissions by Bass in the eviction
proceedings, Wood argues that the issues of whether a prior
agreement existed between the parties and that Bass was Wood’s
landlord have been established and are now indisputable.
[7‑10] It is true that ordinarily, a party may at any time
invoke the language of his or her opponent’s pleadings on an
issue being tried as rendering certain facts indisputable. Miller
v. Radtke, 230 Neb. 561, 432 N.W.2d 542 (1988). The plead-
ings in a cause are, for the purposes of use in that suit, not mere
ordinary admissions but judicial admissions and, as such, are a
waiver of all controversy insofar as the opponent may desire
to take advantage of them. Knoell Constr. Co., Inc. v. Hanson,
205 Neb. 305, 287 N.W.2d 435 (1980). However, judicial
admissions must occur within judicial proceedings and within
the case being tried. State v. Burke, 23 Neb. App. 750, 876
N.W.2d 922 (2016). Matters contained in pleadings in other
cases are simple admissions. Cook v. Beermann, 202 Neb.
447, 276 N.W.2d 84 (1979). A simple admission is one that
is admissible as evidence of the facts alleged therein and may
be introduced and considered the same as any other evidence.
See TNT Cattle Co. v. Fife, 304 Neb. 890, 937 N.W.2d 811(2020). Accordingly, a simple admission should be given such
weight as the trier of fact deems it entitled in the light of the
pleader’s explanation, if any, of the circumstances under which
the admissions were made. Id.In the present case, the admissions from Bass that he was a
landlord and that there was a prior agreement were made in a
separate eviction proceeding. Consequently, these admissions
are simple admissions. The county court had the opportunity
to consider these simple admissions and weigh the admis-
sions appropriately in light of the explanations given in court.
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Cite as 30 Neb. App. 391Bass testified that at the time that he filed his complaint for
restitution, he did not believe himself to be in a landlord‑tenant
relationship with Wood. Instead, he testified that he relied on
the advice of legal counsel as to how to most quickly remove
Wood from his residence. He also testified that there was not
a signed lease and that Wood did not pay any money to him
while she lived there. He further explained that the purpose of
Wood’s moving into the residence was to reconcile the rela-
tionship because he was in love with Wood. In contrast to Bass’
explanation for Wood’s moving in with him, Wood testified
that the parties had an arrangement where in exchange for her
living in Bass’ residence, Wood would maintain an exclusive
relationship with Bass, would continue to attend events with
him, and would complete various household duties. She further
testified that Bass promised her that even if the relationship
became irreparable, she would not have to leave until after her
daughter graduated from high school.
The county court heard the testimony of both Bass and
Wood and made a determination as to how much weight to
give the admissions made by Bass in the eviction pleadings.
Given the county court’s determination, it apparently believed
that the greater weight of the testimony presented at trial,
including Bass’ explanation of how the eviction proceedings
came about, overcame any of Bass’ admissions made therein.
The county court clearly considered the testimony of both
parties that demonstrated that Bass did not require Wood to
sign a lease or pay money for rent. The court also considered
Bass’ testimony that he merely sought to remove Wood from
the residence in the quickest manner available when their
relationship ended. Appellate courts do not reweigh the testi-
mony or reevaluate the credibility of witnesses on appeal. See
Benjamin v. Bierman, 305 Neb. 879, 943 N.W.2d 283 (2020).
Accordingly, we agree with the district court that the county
court did not err in finding that the prior admissions made in
the eviction action were not judicial admissions that were dis-
positive of determining whether a landlord‑tenant relationship
was formed between the parties.
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Cite as 30 Neb. App. 391Issue Preclusion.
Wood further argues that Bass is precluded as a matter of
law, through issue preclusion, from relitigating the landlord‑­
tenant relationship between the parties because Bass’ eviction
proceedings against Wood definitively determined any tenancy
issues with respect to the parties.
[11‑13] Issue preclusion bars the relitigation of a finally
determined issue that a party had a prior opportunity to fully
and fairly litigate. Hara v. Reichert, 287 Neb. 577, 843 N.W.2d
812 (2014). Issue preclusion applies where (1) an identical
issue was decided in a prior action, (2) the prior action resulted
in a final judgment on the merits, (3) the party against whom
the doctrine is to be applied was a party or was in privity with
a party to the prior action, and (4) there was an opportunity to
fully and fairly litigate the issue in the prior action. Id. Issue
preclusion applies only to issues actually litigated. Id.In State ex rel. Douglas v. Morrow, 216 Neb. 317, 343
N.W.2d 903 (1984), the Supreme Court addressed whether
issue preclusion would apply in a case where the final judg-
ment was not offered by the party seeking to invoke issue
preclusion. The appellant alleged that the civil action enjoin-
ing him from operating or participating in the operation of a
private school for children without complying with the school
laws of Nebraska was barred because of his acquittal in a pre-
vious criminal prosecution. See id. The appellant placed into
evidence a record of the testimony offered in the prosecution
but did not offer any evidence of either the charge filed or the
exact judgment rendered. Id. The Supreme Court stated that
the analysis which needs to be made in resolving whether col-
lateral estoppel, or issue preclusion, applies requires a study of
the operative pleadings and judgment, as well as the evidence
adduced in a prior proceeding. Id. The court noted that since
it did not have the operative pleadings and judgment, there
was a defect in the proof of the prior litigation that prevented
it from performing the required analysis. The court went on
to conclude, however, that it was well established that an
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Cite as 30 Neb. App. 391acquittal or dismissal in a prior criminal prosecution is no bar
to the prosecution of a later civil action. Id. Therefore, even if
the appellant had provided an adequate record, the State would
not have been precluded from bringing the civil action.
Here, Wood has failed to provide an adequate record from
which a determination of issue preclusion could be made. The
record supplied from the eviction proceeding contains only the
complaint for restitution, a general denial, and several motions
and orders for continuance. The record does not contain either
the final judgment in the eviction proceeding, the evidence
adduced in the hearing, or any indication of whether a hear-
ing was conducted. Wood did testify that her daughter was
removed from the residence and that Wood, herself, was sub-
sequently barred from the residence as well. However, she also
testified that she does not recall whether a hearing with respect
to the eviction proceeding occurred. Ultimately, because the
final judgment and any evidence adduced during a hearing in
that proceeding was not produced, neither the county court nor
any reviewing court is able to perform the analysis necessary
to determine whether issue preclusion can apply. Based on the
record before us, we cannot say that Wood met her burden of
proof that issue preclusion would apply in the present case. See
State v. Gerdes, 233 Neb. 528, 446 N.W.2d 224 (1989) (estab-
lishing that burden of proof for application of issue preclusion
is upon litigant who seeks to rely upon doctrine of issue pre-
clusion). Therefore, we find no error by the county court or the
district court.
CONCLUSION
We find, as did the district court, that the county court did
not err in determining that the parties were not in a landlord‑­
tenant relationship. Because Wood’s complaint was brought
pursuant to the Act, which only applies to litigants in a
landlord‑tenant relationship, we likewise affirm the decision
of the district court finding that the county court did not err in
dismissing Wood’s petition.
Affirmed.