Mason v. Schumacher

• Decision Date: 27 April 1989
• Docket Number: No. 87-194,87-194
• Citation: 439 N.W.2d 61,231 Neb. 929
• Parties: , 84 A.L.R.4th 163 Henry MASON, Appellee and Cross-Appellant, v. Robert E. SCHUMACHER and Alberta A. Schumacher, Husband and Wife, Appellants and Cross-Appellees.
• Court: Nebraska Supreme Court

Page 61

439 N.W.2d 61

231 Neb. 929, 84 A.L.R.4th 163

Henry MASON, Appellee and Cross-Appellant, v. Robert E. SCHUMACHER and Alberta A. Schumacher, Husband and Wife, Appellants and Cross-Appellees.

No. 87-194.

Supreme Court of Nebraska.

April 27, 1989.

Syllabus by the Court

1. Courts: Judgments: Appeal and Error. On appeal of a county court's judgment rendered in a bench trial of a law action, the district court reviews the "case for error appearing on the record made in the county court." Neb.Rev.Stat. § 24-541.06 (Reissue 1985). A county court's factual findings in a bench trial of a law action have the effect of a verdict and will not be set aside unless such findings are clearly erroneous.

2. Courts: Judgments: Appeal and Error. As appellate courts, reviewing a judgment in a bench trial of a law action in the county court, the Supreme Court and a district court do not reweigh evidence, but consider the judgment in the light most favorable to the successful party and resolve evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

3. Landlord and Tenant. The Uniform Residential Landlord and Tenant Act, Neb.Rev.Stat. §§ 76-1401 et seq. (Reissue 1986), does not exclude or otherwise alter common law, unless the common law is expressly displaced by the provisions of the act.

4. Statutes. Statutes which effect a change in the common law or take away a common-law right should be strictly construed.

5. Landlord and Tenant: Abandonment. Neb.Rev.Stat. § 76-1432(3) (Reissue 1986) does not abrogate or displace common law concerning abandonment of real estate leased for residential purposes.

6. Landlord and Tenant: Abandonment: Circumstantial Evidence. In the absence of a tenant's explicit abandonment of residential premises, legitimation of a landlord's self-help recovery of the leased premises during the first 30 days of the tenant's absence may depend on unequivocal but circumstantial proof of the tenant's abandonment.

7. Landlord and Tenant: Abandonment: Intent. Abandonment of leased premises occurs when a tenant, with the intention to terminate contractual rights to exclusive possession and control over leased premises, voluntarily relinquishes or vacates the leased premises.

8. Landlord and Tenant: Abandonment: Intent: Circumstantial Evidence. A tenant's intention to terminate the leasehold and abandon the premises may be circumstantially evidenced by conduct inconsistent with continued control over the leased premises.

9. Property: Conversion: Words and Phrases. Conversion is the unauthorized and wrongful dominion over personal property owned by another, which is exerted as a denial of or inconsistent with the owner's rights in the property or is asserted in derogation, exclusion, or defiance of another's ownership or title in personal property.

10. Landlord and Tenant: Property; Conversion: Actions. When a landlord completely dispossesses a tenant of leased premises and either denies the tenant access to the tenant's personal property or asserts an interest in the tenant's property, an action for conversion will lie.

Jeffrey A. Silver, of Silver and Wieland, Omaha, for appellants and cross-appellees.

Edward F. Pohren, of Dwyer, Pohren, Wood, Heavey & Grimm, Omaha, for appellee and cross-appellant.

BOSLAUGH, WHITE, SHANAHAN, and FAHRNBRUCH, JJ., and WITTHOFF, District Judge.

SHANAHAN, Justice.

In the county court for Douglas County, Henry Mason filed two petitions against Robert E. and Alberta A. Schumacher, Mason's former landlords, and sought (1) damages for conversion of his personal property and (2) liquidated and actual damages for unlawful ouster and wrongful withholding of his security deposit, pursuant to Nebraska's Uniform Residential Landlord and Tenant Act (URLTA), Neb.Rev.Stat. §§ 76-1401 et seq. (Reissue 1986). Schumachers cross-claimed for past-due rent and repairs to their duplex which had been rented to Mason. The county court consolidated the actions for trial, held that Mason had abandoned the leased premises with all his personal property on the premises when the abandonment occurred, and dismissed Mason's petitions. Also, the county court awarded judgment to Schumachers for $395, or 1 month's rent.

Pursuant to Neb.Rev.Stat. § 24-541.06 (Reissue 1985), Mason appealed to the district court, which, after finding that Mason had not abandoned the leased premises, held that (1) the county court's dismissal of Mason's conversion action was erroneous; (2) Mason was entitled to his security deposit less Schumachers' cost of repairs to the premises and delinquent rent due Schumachers; (3) Schumachers were not entitled to costs incurred in removing Mason's belongings from the premises; and (4) Mason was not entitled to damages for unlawful ouster. The district court, therefore, reversed the decision of the county court and remanded the case for further proceedings in Mason's conversion action. Schumachers appeal and Mason cross-appeals.

STANDARD OF REVIEW

All actions involved in this appeal are law actions in a bench trial before the county court.

On appeal of a county court's judgment rendered in a bench trial of a law action, the district court reviews the "case for error appearing on the record made in the county court." Neb.Rev.Stat. § 24-541.06 (Reissue 1985). A county court's factual findings in a bench Holden v. Urban, 224 Neb. 472, 474, 398 N.W.2d 699, 701 (1987).

trial of a law action have the effect of a verdict and will not be set aside unless such findings are clearly erroneous.

As appellate courts, reviewing a judgment in a bench trial of a law action in the county court, the Supreme Court and a district court do not reweigh evidence, but consider the judgment in the light most favorable to the successful party and resolve evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. See Alliance Nat. Bank v. State Surety Co., 223 Neb. 403, 390 N.W.2d 487 (1986).

THE MOTLEY AND MULTIFORM UNIFORM RESIDENTIAL LANDLORD AND TENANT ACT

Before a detailed factual background for the questions of first impression in this appeal, we observe that the Nebraska Legislature, in 1974, enacted the URLTA to "simplify, clarify, modernize, and revise" landlord-tenant law, as well as "[t]o make uniform the law among those states which enact" URLTA. § 76-1402. However, notwithstanding the statutory objective mentioned in § 76-1402, we note that the Uniform Residential Landlord and Tenant Act, approved by the National Conference of Commissioners on Uniform State Laws, has 43 sections which contain substantive provisions relevant to the landlord-tenant relationship for residential real estate and that 30 of those 43 sections have been amended by or deleted from the Nebraska act. See Unif. Residential Landlord and Tenant Act §§ 1.101 et seq., 7B U.L.A. 427 et seq. (1972). Nevertheless, § 76-1403 provides that "[u]nless displaced by the provisions of [URLTA], the principles of law and equity ... supplement its [URLTA's] provisions."

Section 76-1405(2) governs remedies under URLTA: "Any right or obligation declared by [URLTA] is enforceable by action unless the provision declaring it specifies a different and limited effect."

URLTA also relates to security deposits and their return by the landlord:

(2) Upon termination of the tenancy property or money held by the landlord as prepaid rent and security may be applied to the payment of rent and the amount of damages which the landlord has suffered by reason of the tenant's noncompliance with the rental agreement or section 76-1421 [tenant to maintain dwelling]. The balance, if any, and a written itemization shall be delivered or mailed to the tenant within fourteen days after demand and designation of the location where payment may be made or mailed.

(3) If the landlord fails to comply with subsection (2) the tenant may recover the property and money due him and reasonable attorney's fees.

§ 76-1416.

Section 76-1421(2) provides that a tenant shall "upon termination of the tenancy place the dwelling unit in as clean condition, excepting ordinary wear and tear, as when the tenancy commenced."

According to § 76-1424, "the tenant shall occupy his dwelling unit only as a dwelling unit."

Regarding a tenant's remedies for unlawful ouster by the landlord and return of a security deposit, § 76-1430 states:

If the landlord unlawfully excludes or removes the tenant from the premises ... 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.

A landlord's remedy for a tenant's nonpayment of rent is found in § 76-1431(2):

If rent is unpaid when due and the tenant fails to pay rent within three days after written notice by the landlord of nonpayment and his intention to terminate the rental agreement if the rent is not paid within that period of time, the A tenant's abandonment of leased premises is mentioned in § 76-1432(3), which provides:

landlord may terminate the rental agreement.

If the tenant abandons the dwelling unit, the landlord shall take immediate possession and shall make reasonable efforts to rent it at a fair rental. If the landlord rents the dwelling unit for a term beginning prior to the expiration of the rental agreement, it is deemed to be terminated as of the date the new tenancy begins. Total absence from the premises without notice to landlord for one full rental period or thirty days, whichever is less, shall constitute abandonment.

(Emphasis supplied.) The last sentence of § 76-1432(3) is not part of the uniform act drafted at the national level, but was added, and is apparently uniquely indigenous, to...