132 Ventures v. Active Spine Physical Therapy, 982 N.W.2d 778

Background:

132 Ventures bought the commercial property at a foreclosure sale after DEMU/ the Muchowiczes/Active Spine failed to pay rent; 132 Ventures sued for forcible entry and detainer, breach of contract, breach of guaranty, and unjust enrichment.
Original lease (Dec. 29, 2017) was between DEMU and Active Spine; Nicholas and Sara Muchowicz signed personal guarantees. Nicholas later purported to sign an amended lease (Feb. 20, 2020).
132 Ventures served a three-day notice and filed for forcible entry and detainer; the district court ordered restitution and removed Active Spine from the premises.
The district court later set a separate bench trial on damages for 132 Ventures’ remaining claims; Active Spine and the Muchowiczes objected and requested a jury trial but the court proceeded with a bench trial.
At the bench trial the court used the amended lease to calculate damages and awarded money to 132 Ventures; defendants appealed, arguing they were entitled to a jury and had not waived it; 132 Ventures cross-appealed lease-related rulings.
The Nebraska Supreme Court affirmed restitution (forcible entry and detainer), held the defendants were entitled to a jury on the legal claims, found no valid waiver on the record, reversed the bench-trial damages disposition, and remanded for a jury trial on damages.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendants were entitled to a jury trial on breach of contract, breach of guaranty, and unjust enrichment after forcible entry and detainer was decided	132 Ventures: forcible entry and detainer statute (§ 25-21-226) requires bench trial if no jury was demanded earlier; separate objection after possession phase is too late	Active Spine/Muchowiczes: those causes are legal claims entitling defendants to a jury; failing to demand a jury during the possession phase does not waive jury rights for later, bifurcated legal claims	Defendants were entitled to a jury on the legal claims; forcible entry and detainer statutes do not automatically waive jury rights for separate damages claims
Whether defendants waived the right to a jury by not objecting at the pretrial setting or by proceeding at the bench trial	132 Ventures: parties agreed at the July 20 hearing to a bench trial; order reflected that agreement	Defendants: no on-the-record oral waiver was made; they preserved objections and did not present a case-in-chief or move for directed verdict because they continued to object	No waiver under § 25-1126 was shown: waiver in district court requires one of the statute’s three methods and no oral on-the-record consent appears in the record
Whether the amended lease could be used to calculate damages	132 Ventures: amended lease was void as to it because DEMU’s operating agreement required unanimous member consent for affiliated-party contracts	Defendants: amended lease was the operative agreement and governs damages; 132 Ventures cannot avoid it	Trial court erred in precluding 132 Ventures from contesting the amended lease; which lease applies is a factual issue for the jury on remand
Who determines damages and whether damages proof was sufficient	132 Ventures: damages were provable and properly calculated at bench trial	Defendants: 132 Ventures failed to prove damages	Determination of damages (including which lease governs and amount) is for the factfinder; because jury trial is required the bench findings on damages are vacated and remanded for jury determination

Key Cases Cited

Cummins Mgmt. Co. v. Gilroy, 266 Neb. 635 (discusses scope and summary nature of forcible entry and detainer proceedings)
Federal Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301 (forcible entry and detainer tries possession, not title)
State v. Moores, 56 Neb. 1 (historical common-law treatment: summary statutory proceedings generally did not carry jury rights)
Jacobson v. Shresta, 288 Neb. 615 (waiver of jury trial in district court must fall within statute’s three methods)
Schmid v. Simmons, 311 Neb. 48 (Nebraska Constitution preserves common-law jury rights; distinguishes legal vs equitable claims)
McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202 (bench-trial factual findings have the effect of a jury verdict)