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Grimminger v. Mudloff

Court of Appeals of Nebraska

September 17, 2013

Sam Grimminger and Kay Grimminger, appellants,
v.
James Mudloff, appellee.

1. Actions: Restrictive Covenants: Equity. An action to enjoin a breach of restrictive use covenants is equitable in nature.

2. Equity: Appeal and Error. In an appeal of an equitable action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

3. Restrictive Covenants: Intent Restrictive covenants are to be construed so as to give effect to the intentions of the parties at the time they agreed to the covenants.

4. Restrictive Covenants. If the language of a restrictive covenant is unambiguous, the covenant shall be enforced according to its plain language, and the covenant shall not be subject to rules of interpretation or construction.

5. __. Restrictive covenants are not favored in the law and, if ambiguous, should be construed in a manner which allows the maximum unrestricted use of the property.

6. Contracts. An ambiguity exists when the instrument at issue is susceptible of two or more reasonable but conflicting interpretations or meanings. Moreover, the fact that the parties have suggested opposing meanings of the disputed instrument does not necessarily compel the conclusion that the instrument is ambiguous.

7. Restrictive Covenants: Words and Phrases. A dwelling is a structure in which a person lives or that has been designed for living.

8. __: __. The term "residential" prohibits the affected real property from being utilized for commercial purposes.

Appeal from the District Court for Howard County: Karin L. Noakes, Judge.

[21 Neb.App. 307] Sam Grimminger, pro se, and for appellant Kay Grimminger.

David T. Schroeder for appellee.

Inbody, Chief Judge, and Irwin and Moore, Judges.

Moore, Judge.

Sam Grimminger and Kay Grimminger, lot owners in the Lake of the Woods subdivision, filed suit for an injunction in the district court for Howard County against James Mudloff, another lot owner in the subdivision. The Grimmingers contended that Mudloff s use of his lot and construction of a detached garage structure violated the subdivision's restrictive covenants. Following trial, the district court entered judgment in favor of Mudloff. The Grimmingers challenge the district court's conclusions that Mudloff s detached garage structure was not ...


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