MIMG LXXIV Colonial v. Ellis

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
MIMG LXXIV COLONIAL v. ELLIS
Cite as 316 Neb. 746
MIMG LXXIV Colonial, LLC, appellant,
v. TajReAna Ellis, appellee.
___ N.W.3d ___
Filed May 31, 2024. 	No. S-23-438.
1. Moot Question: Jurisdiction: Appeal and Error. Because mootness is
a justiciability doctrine that operates to prevent courts from exercising
jurisdiction, an appellate court reviews mootness determinations under
the same standard of review as other jurisdictional questions.
2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional
question does not involve a factual dispute, its determination is a matter
of law, which requires an appellate court to reach a conclusion indepen-
dent of the decisions made by lower courts.
3. Moot Question: Words and Phrases. A case is moot if the facts under-
lying the dispute have changed, such that the issues presented are no
longer alive.
4. Moot Question. The central question in a mootness analysis is whether
changes in circumstances that prevailed at the beginning of litigation
have forestalled any occasion for meaningful relief.
5. Moot Question: Costs. Generally, claims for costs are not sufficient to
avoid mootness.
6. Moot Question: Appeal and Error. The public interest exception to the
mootness doctrine requires an appellate court to consider (1) the public
or private nature of the question presented, (2) the desirability of an
authoritative adjudication for guidance of public officials, and (3) the
likelihood of recurrence of the same or a similar problem.
Appeal from the District Court for Douglas County, Timothy
P. Burns, Judge, on appeal thereto from the County Court
for Douglas County, Jeffrey L. Marcuzzo, Judge. Appeal
dismissed.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:41 AM CDT

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
MIMG LXXIV COLONIAL v. ELLIS
Cite as 316 Neb. 746
Joshua C. Dickinson, Shilee T. Mullin, Tara E. Holterhaus,
and Gene M. Eckel, of Spencer Fane, L.L.P., for appellant.
Caitlin Cedfeldt, of Legal Aid of Nebraska, for appellee.
Kasey D. Ogle, for amicus curiae Nebraska Appleseed
Center for Law in the Public Interest.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
In this residential eviction case, the parties disagree over
whether the landlord provided adequate notice before com-
mencing eviction proceedings. Although the parties agree
that Nebraska’s Uniform Residential Landlord and Tenant
Act (URLTA) required the landlord to provide only 7 days’
notice, the tenant takes the position that a provision within
the federal Coronavirus Aid, Relief, and Economic Security
Act (CARES Act), see 15 U.S.C. § 9058(c) (Supp. IV 2022),
imposed a permanent, nationwide 30-day notice requirement
that preempts any shorter notice requirement under state
law. The county court rejected the tenant’s argument, but, on
appeal, the district court accepted it and vacated the eviction.
The landlord now appeals to us. At this point, however, the
tenant’s lease has expired, and she no longer resides in the
property at issue. We accordingly find that the case is moot
and dismiss the appeal.
BACKGROUND
TajReAna Ellis leased an apartment from MIMG LXXIV
Colonial, LLC (Colonial). The 1-year lease term began in
August 2022.
After Ellis failed to pay all she owed Colonial as it became
due, Colonial, on November 8, 2022, delivered to Ellis a
“Seven Day Notice to Pay Rent.” The notice advised that
Ellis was in default for failing to pay charges owed under her

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
MIMG LXXIV COLONIAL v. ELLIS
Cite as 316 Neb. 746
lease and informed her that if she did not pay the amounts
owed or surrender the property within 7 days, Colonial would
institute eviction proceedings. Seven days elapsed, and Ellis
failed to pay the amounts Colonial claimed she owed. On
November 17, Colonial initiated eviction proceedings under
the URLTA.
Ellis moved to dismiss the eviction action in the county
court. In support of the motion, she argued that the CARES Act
required Colonial to provide Ellis 30 days’ notice before com-
mencing eviction proceedings. The county court denied Ellis’
motion and eventually entered a judgment of restitution of the
premises in favor of Colonial.
Ellis appealed to the district court. She renewed her argu-
ments that, under the CARES Act, the URLTA’s notice require-
ment is preempted and Colonial was obligated to provide 30
days’ written notice. The district court agreed with Ellis. In
its order, the district court observed that “every court that has
looked at this issue has held that the 30-day notice require-
ment is still controlling and has not expired” and cited a
Colorado Supreme Court case, which cited decisions from
other jurisdictions. See Arvada Village Gardens LP v. Garate,
529 P.3d 105 (Colo. 2023). Because Colonial did not give Ellis
30 days’ notice, the district court reversed the judgment of the
county court and remanded the cause with directions to enter
judgment for Ellis.
Colonial filed a timely appeal and a petition to bypass the
Nebraska Court of Appeals. We granted the petition to bypass.
At oral argument, counsel for Ellis acknowledged that after
Ellis’ lease expired, Ellis moved out of the apartment at issue.
Given this acknowledgment, we directed the parties to submit
supplemental briefs addressing whether the case is moot and,
if so, whether we should address the merits under any excep-
tion to the general rule that moot cases are subject to dis-
missal. See NP Dodge Mgmt. Co. v. Holcomb, 314 Neb. 748,
993 N.W.2d 105 (2023).

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
MIMG LXXIV COLONIAL v. ELLIS
Cite as 316 Neb. 746
ASSIGNMENTS OF ERROR
Colonial assigns three errors, each of which challenges the
district court’s conclusion that the CARES Act required it to
provide 30 days’ notice. Colonial argues that the district court
erred because (1) the CARES Act’s notice requirement did not
apply, (2) the CARES Act did not preempt the 7-day notice
requirement imposed by the URLTA, and (3) to the extent the
CARES Act’s notice requirement did apply, it was unconstitu-
tional, as Congress lacked the power to enact it.
STANDARD OF REVIEW
[1,2] Because mootness is a justiciability doctrine that oper-
ates to prevent courts from exercising jurisdiction, an appel-
late court reviews mootness determinations under the same
standard of review as other jurisdictional questions. NP Dodge
Mgmt. Co., supra. When a jurisdictional question does not
involve a factual dispute, its determination is a matter of law,
which requires an appellate court to reach a conclusion inde-
pendent of the decisions made by lower courts. Id.
ANALYSIS
Mootness.
Colonial challenges the district court’s order reversing its
judgment for restitution of the premises. At this point in time,
however, Ellis’ lease has expired, and the parties agree that she
no longer lives in the apartment at issue. Given these facts, we
must consider whether Colonial’s appeal is moot.
[3,4] A case is moot if the facts underlying the dispute have
changed, such that the issues presented are no longer alive.
Id. The central question in a mootness analysis is whether
changes in circumstances that prevailed at the beginning
of litigation have forestalled any occasion for meaningful
relief. Id. Or, put another way, “‘[a] moot case exists where
a judgment rendered by the court will have no practical legal
effect upon an existing controversy because an intervening
event renders any grant of effectual relief impossible for the
reviewing court.’” Id. at 752, 993 N.W.2d at 109-10, quoting

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
MIMG LXXIV COLONIAL v. ELLIS
Cite as 316 Neb. 746
Sloan v. Friends of Hunley, Inc., 369 S.C. 20, 630 S.E.2d
474 (2006).
That is the case here. The legal relief Colonial sought and
obtained in the county court and seeks to have restored on
appeal was a judgment for restitution of the premises. Such a
judgment would allow it to remove Ellis from the apartment
she leased. See NP Dodge Mgmt. Co., supra. But now that
Ellis’ lease has expired and she has moved out of the apart-
ment, such a judgment would have no practical effect. See id.
[5] Despite the foregoing, Colonial offers arguments in
its supplemental brief that the case is not moot. Colonial
argues first that it has an interest in knowing whether or not
it violated the law. Alternatively, it argues that it has a live
financial interest in the case, because as part of its order, the
district court taxed costs against Colonial, and, through this
appeal, Colonial seeks to avoid those costs. Colonial’s argu-
ments require little discussion. Any party could contend that
it has an interest in knowing whether a lower court’s decision
was correct; a case is nonetheless moot if that determination
will have no practical effect. As for Colonial’s contention
that the case is not moot based on the district court’s taxing
of costs, there is legal authority to the contrary. “Claims for
costs traditionally have not been thought sufficient to avoid
mootness, presumably on the theory that such incidental mat-
ters should not compel continuation of an otherwise moribund
action.” 13C Charles Alan Wright et al., Federal Practice and
Procedure § 3533.3 at 50 (2023). We agree with the foregoing
and thus hold that, generally, claims for costs are not suffi-
cient to avoid mootness.
Because we find that we cannot grant effective relief at this
time, we conclude that the appeal is moot.
Public Interest Exception.
Even though the case is moot, that does not necessarily
end our analysis. Although a moot case is ordinarily subject
to summary dismissal, we have recognized circumstances in
which we may reach the merits of an otherwise moot case. The

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
MIMG LXXIV COLONIAL v. ELLIS
Cite as 316 Neb. 746
parties offer multiple reasons why we should reach the merits
of this case, even if it is moot.
[6] First, both parties ask that we reach the merits under
the public interest exception to the mootness doctrine. The
public interest exception to the mootness doctrine requires
an appellate court to consider (1) the public or private nature
of the question presented, (2) the desirability of an authorita-
tive adjudication for guidance of public officials, and (3) the
likelihood of recurrence of the same or a similar problem. NP
Dodge Mgmt. Co. v. Holcomb, 314 Neb. 748, 993 N.W.2d 105
(2023). In addition, even if an issue is likely to recur, we have
said that it is generally inappropriate for an appellate court to
review a moot case that does not evade review as a result of
a transitory setting. See id.
Last year, in NP Dodge Mgmt. Co., supra, we dismissed
an appeal in an eviction case as moot. As in this case, by the
time the appeal reached us, the tenant’s lease had expired and
she no longer lived in the apartment at issue. And while the
parties in that case asked us to decide whether the tenant was
constitutionally entitled to a jury trial in the eviction proceed-
ings under the public interest exception, we declined to do so.
Among other things, we found it unclear whether the issue
inherently evaded review. We find the same is true here.
In addition to uncertainty about whether the issue inher-
ently evades review, there is another consideration unique to
this case. As the factors relevant to application of the public
interest exception demonstrate, the exception exists so that
authoritative judicial guidance can be provided on issues
that are likely to recur but would otherwise inherently evade
review. This court can provide final authoritative guidance
over such questions when analyzing a question of Nebraska
law. But the primary question in this case—did the CARES
Act require Colonial to provide 30 days’ notice?—is a matter
of federal statutory interpretation. State courts obviously can
and do interpret federal statutes, see, e.g., J.S. v. Nebraska
Dept. of Health & Human Servs., 306 Neb. 20, 944 N.W.2d

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
MIMG LXXIV COLONIAL v. ELLIS
Cite as 316 Neb. 746
266 (2020), but on issues of federal statutory interpretation,
the U.S. Supreme Court gets the last word. See, e.g., James
v. Boise, 577 U.S. 306, 307, 136 S. Ct. 685, 193 L. Ed. 2d
694 (2016) (explaining that state courts are “bound by [the
U.S. Supreme Court’s] interpretation of federal law”). We are
reluctant to decide an issue in a moot case when our guidance
would not be finally authoritative. Accordingly, we decline to
reach the merits of Colonial’s appeal under the public inter-
est exception.
As well as asking us to decide the merits under the public
interest exception, Colonial also argues that we should reach
the merits under a separate exception: the collateral conse-
quences exception. Generally, that exception “permits adju-
dication of the merits of a criminal case where the petitioner
may suffer future state or federal penalties or disabilities as
a result of the [criminal] judgment,” even though the crimi-
nal sentence has already been served. State v. Patterson, 237
Neb. 198, 202, 465 N.W.2d 743, 747 (1991), citing St. Pierre
v. United States, 319 U.S. 41, 63 S. Ct. 910, 87 L. Ed. 1199
(1943). Colonial argues that the district court’s decision will
negatively impact its reputation as a property manager. In
NP Dodge Mgmt. Co., supra, we declined to reach the merits
under the collateral consequences exception, observing that
we have previously refused to apply the exception outside the
criminal context. Likewise, here, because Colonial has not
identified that it will be subject to the type of collateral con-
sequences that warrant review, we decline to reach the merits
under that exception.
CONCLUSION
Because this case is moot, we dismiss the appeal.
Appeal dismissed.
Papik, J., concurring.
I agree that the case is moot and subject to dismissal. I also
agree that this court cannot provide final authoritative guid-
ance on the issue of federal statutory interpretation on which

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
MIMG LXXIV COLONIAL v. ELLIS
Cite as 316 Neb. 746
this case turns. That said, unless the U.S. Supreme Court grants
certiorari or Congress amends the relevant statutory provision,
litigation over the issue may persist. If it does, state courts will
be forced to continue grappling with whether the 2020 federal
Coronavirus Aid, Relief, and Economic Security Act (CARES
Act) imposes a permanent federal 30-day notice requirement
on evictions from covered properties and preempts shorter
notice requirements imposed by state law. I write separately
to suggest the possible relevance to that analysis of a canon of
statutory construction.
In a number of cases, the U.S. Supreme Court has relied
on a clear-statement rule sometimes called “the federalism
canon.” See West Virginia v. EPA, 597 U.S. 697, 744, 142 S.
Ct. 2587, ___ L. Ed. 2d ___ (2022) (Gorsuch, J., concurring).
See Hohenberg v. Shelby County, Tennessee, 68 F.4th 336 (6th
Cir. 2023). Under this canon of interpretation, courts are not
to interpret a federal statute to regulate an area traditionally
regulated by the states absent a clear statement in the statute
of congressional intent to do so. See Gregory v. Ashcroft, 501
U.S. 452, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991). See,
also, Bond v. United States, 572 U.S. 844, 134 S. Ct. 2077,
189 L. Ed. 2d 1 (2014); BFP v. Resolution Trust Corporation,
511 U.S. 531, 114 S. Ct. 1757, 128 L. Ed. 2d 556 (1994).
Or, as the Court somewhat recently articulated the principle,
Congress must “‘enact exceedingly clear language if it wishes
to significantly alter the balance between federal and state
power.’” Alabama Assn. of Realtors v. Department of Health
and Human Servs., 594 U.S. 758, 764, 141 S. Ct. 2485, 210 L.
Ed. 2d 856 (2021).
In this case, Ellis takes the position taken by several other
tenants across the country facing eviction: that a provision
enacted as part of the CARES Act, see 15 U.S.C. § 9058(c)
(Supp. IV 2022), imposes a permanent federal requirement
that lessors of certain covered properties provide 30 days’
notice to a tenant before initiating eviction proceedings. A per-
manent federal notice requirement for evictions would seem

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
MIMG LXXIV COLONIAL v. ELLIS
Cite as 316 Neb. 746
to qualify as a significant alteration of the balance between
federal and state power. Just a few years ago, in a case con-
cerning a different eviction moratorium issued by the Centers
for Disease Control and Prevention (CDC), the U.S. Supreme
Court reiterated that the landlord-tenant relationship “is the
particular domain of state law.” Alabama Assn. of Realtors v.
Department of Health and Human Servs., 594 U.S. at 764. On
that basis, the Court indicated that, in the absence of clear lan-
guage saying so, the statute at issue should not be interpreted
to give the CDC the authority to issue an eviction moratorium.
Alabama Assn. of Realtors, supra. Given the U.S. Supreme
Court’s recognition that landlord-tenant law is traditionally
an issue of state concern, it seems safe to conclude that the
adoption of a permanent federal 30-day notice requirement
for residential evictions also significantly alters the balance of
state and federal power.
To the extent it might be suggested that a permanent federal
30-day notice requirement for evictions would not significantly
alter the balance of state and federal power because the statute
at issue applies to only certain covered dwellings with some
connection to federal housing programs, it is worth noting
just how many properties are covered. The statute at issue, 15
U.S.C. § 9058, applies not just to properties that participate
in many federal housing assistance programs, see 15 U.S.C.
§ 9058(a)(2)(A), but also to any property that has a federally
backed mortgage loan, see 15 U.S.C. § 9058(a)(2)(B), assur-
edly not an insignificant number of rental properties around
the country. More to the point, even if the lessors or lessees
of the properties to which 15 U.S.C. § 9058 applies receive
some form of federal financial assistance, there appears to be
no dispute that the notice requirements for evictions for such
properties, like the rest of landlord-tenant law generally, have
traditionally been determined by state law.
If the federalism canon were applied, the relevant question
would not be whether the text of 15 U.S.C. § 9058 is best
read to create a permanent federal 30-day notice requirement

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
MIMG LXXIV COLONIAL v. ELLIS
Cite as 316 Neb. 746
for evictions from covered properties. Rather, the question
would be whether an interpretation that avoids or minimizes
federal regulation of a subject traditionally left to the states
is at least tenable, such that the more expansive interpretation
cannot be described as clear. As Justice Barrett observed in a
recent concurring opinion, the federalism canon is a “strong-
form canon,” and such canons ask courts to “strain statutory
text to advance a particular value.” Biden v. Nebraska, 600
U.S. 477, 508, 143 S. Ct. 2355, 216 L. Ed. 2d 1063 (2023)
(Barrett, J., concurring) (emphasis in original). As a result,
Justice Barrett explained that when a clear-statement interpre-
tive rule applies, “the better interpretation of a statute will
not necessarily prevail,” id., and if the “better reading leads
to a disfavored result . . . the court will adopt an inferior-but-
tenable reading to avoid it,” id., 600 U.S. at 509. See, also,
Rudisill v. McDonough, 601 U.S. 294, 315, 144 S. Ct. 945, ___
L. Ed. 2d ___ (2024) (Kavanaugh, J., concurring) (“[a]pplying
a substantive canon, a court may depart from what the court,
absent the canon, would have concluded is the best reading of
the statutory text. Otherwise, of course, the substantive canon
would not be necessary or relevant”).
Some have questioned whether the use of substantive can-
ons in this fashion is consistent with the U.S. Supreme Court’s
ascendant textualist approach to statutory interpretation. See,
e.g., Biden, supra (Barrett, J., concurring). See, also, Benjamin
Eidelson & Matthew C. Stephenson, The Incompatibility of
Substantive Canons and Textualism, 137 Harv. L. Rev. 515
(2023); Amy Coney Barett, Substantive Canons and Faithful
Agency, 90 B.U. L. Rev. 109 (2010); Antonin Scalia, A Matter
of Interpretation 28 (1997) (suggesting that substantive can-
ons “are a lot of trouble” for “the honest textualist”). Even
so, the U.S. Supreme Court has given no indications that it
is retreating from the federalism canon, and thus, it appears
that other judges, when called to interpret federal statutes, are
bound to apply it.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
MIMG LXXIV COLONIAL v. ELLIS
Cite as 316 Neb. 746
Up to this point, Ellis’ reading of the statute has pre-
vailed in a number of courts. The Colorado Supreme Court,
for example, held that a lessor must provide 30 days’ notice
before commencing any proceeding to evict a tenant from a
property covered by 15 U.S.C. § 9058. See Arvada Village
Gardens LP v. Garate, 529 P.3d 105 (Colo. 2023). At least two
state intermediate appellate courts have followed the Colorado
Supreme Court’s reasoning. See, Hazelwood v. Common Wealth
Apartments, 231 N.E.3d 284 (Ind. App. 2024); Olentangy
Commons Owner LLC v. Fawley, 2023 Ohio App. 4039, 228
N.E.3d 621 (2023). The district court in this case also cited the
Colorado Supreme Court’s opinion in concluding that Colonial
was obligated to provide 30 days’ notice.
None of the above-mentioned courts, however, appear to
have taken account of the federalism canon in reaching their
conclusions. For the reasons I have discussed, it is my view
that future courts resolving this issue should. A court apply-
ing the federalism canon might well conclude that the reading
adopted by the Colorado Supreme Court is the only tenable
reading of 15 U.S.C. § 9058 and thus must be adopted. On
the other hand, if a court could identify a tenable reading of
the statutory text that did not significantly alter the traditional
balance between state and federal power in the same way, the
federalism canon would seem to require that interpretation
be adopted.