This section contains the nature of the case and procedural background.

Newman, owner, entered into a lease of his property to ACS, a Texas corporation. The rate was a fixed rent along with additional rent based on receipts. ACS operated the Hinky Dinky supermarkets in Nebraska. The lease provided that the tenant may not assign or transfer the lease without the written consent of the landlord. In February 16, 1985, ACS ceased all operation of his Hinky Dinky markets but before that date asked Newman to consent to a proposed lease to Nash Finch Company. Newman refused consent to lease. Despite this, ACE subleased to Finch. On March 1, 1985, Newman notified ACS and Finch that ACS was in default under the lease and a Notice to vacate was issued. During subsequent negotiations, Newman accepted rent from Finch but an impasse was reached, and Newman filed a Notice to Quit and filed a petition for restitution of the premises. The issue of the acceptance of the lease payments and waiver was at bar. The trial court ruled that summary judgment was proper as a landlord may withhold consent for any reason. The trial court also ruled that the acceptance of lease payments from Finch was not a waiver and then granted judgment to Newman.

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