N.P. Dodge Mgmt. Co v. Eltouny
A-16-727
| Neb. Ct. App. | Jan 2, 2018Background
- N.P. Dodge filed an unlawful detainer in county court alleging Samia Eltouny failed to pay rent and served a 3-day notice to quit; sheriff posted and mailed summons after unsuccessful personal service.
- Eltouny did not appear at the county hearing; county court admitted landlord affidavit and entered judgment for restitution and costs, issuing a writ of restitution.
- Eltouny appealed to district court and posted a supersedeas bond (cash + monthly rent requirement); county court quashed the writ pending appeal.
- At the district hearing Eltouny did not file a statement of errors and presented arguments about service, notice, and payment, but offered no county-court evidence or bill of exceptions.
- District court affirmed the county court, finding no plain error; during the appeal Eltouny moved out of the premises and landlord moved to execute for failure to pay bond.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether county court lacked personal jurisdiction/service was defective | Eltouny contended service/process was improper | N.P. Dodge relied on sheriff’s affidavit of posting and mailing and the service return | Court refused to consider new factual assertions not in record; found no reversible error on record |
| Whether appeal remains justiciable after tenant vacated | Eltouny challenged eviction merits and district-court affirmance | N.P. Dodge argued issues are moot because Eltouny voluntarily vacated | Appeal dismissed as moot because tenant had already moved out, eliminating controversy |
Key Cases Cited
- Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins. Co., 295 Neb. 419, 889 N.W.2d 596 (standard of review for errors appearing on the record)
- In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (bill of exceptions required to present evidence on appeal)
- Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 (oral argument/brief cannot expand evidentiary record)
- Applied Underwriters v. S.E.B. Servs. of New York, 297 Neb. 246, 898 N.W.2d 366 (mootness doctrine and summary dismissal)
- Banks v. Housing Auth. of City of Omaha, 281 Neb. 67, 795 N.W.2d 632 (restitution actions moot when tenant vacates)