THE ESTATES AT PRAIRIE RIDGE HOMEOWNERS ASSOCIATION.
DUANE R. KORTH AND KATHRYN A. KORTH, HUSBAND AND WIFE, APPELLANTS. A NEBRASKA NONPROFIT CORPORATION, APPELLEE,
Restrictive Covenants: Equity. An action to
enforce restrictive covenants is equitable in nature.
Equity: Appeal and Error. On appeal from an equity
action, an appellate court decides factual questions de novo
on the record and, as to questions of both fact and law, is
obligated to reach a conclusion independent of the trial
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
Restrictive Covenants. The language of
restrictive covenants must be interpreted in its entirety.
__ .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.
Contracts: Restrictive Covenants. As in the
interpretation of a contract, a court must first determine,
as a matter of law, whether the language of restrictive
covenants is ambiguous.
Contracts: Words and Phrases. Ambiguity exists in a
document when a word, phrase, or provision in the document
has, or is susceptible of, at least two reasonable but
conflicting interpretations or meanings.
Restrictive Covenants. 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
Restrictive Covenants: Intent. Extrinsic
evidence is not permitted to explain the terms of restrictive
covenants where they are not ambiguous. Instead, the
intentions of the parties must be determined from the
Neb. 267] 10. Summary Judgment: Appeal and
Error. The denial of a motion for summary judgment
is neither appealable nor reviewable.
from the District Court for Sarpy County: George A. Thompson,
Judge. Reversed and remanded with directions.
M. Walker, of Lamson, Dugan & Murray, L.L.P., for
R. Forman, of Hillman, Forman, Childers & McCormack, for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.
homeowners repainted their residence in a blue color, a
homeowners association sued to enforce restrictive covenants
and the district court decreed that the house be repainted in
an "earth tone." The homeowners' appeal turns
on the covenants' plain language, which does not control
the color of repainting. Because the covenants were not
ambiguous and did not prohibit the homeowners' action, we
reverse, and remand with directions.
Restrictive Covenants The Estates at Prairie Ridge, LLC
(Developer), filed the restrictive covenants at issue in
2003. The covenants included prohibitions of certain
"external improvement[s]" (except those
specifically approved by Developer), as well as storage of
anything that would be "obnoxious to the eye." They
also specified that "[n]o objectionable, unlawful or
offensive trade or activity shall be carried on upon any Lot
nor shall anything be done thereon which may be or become a
nuisance or annoyance to the neighborhood or surrounding
Neb. 268] In 2004, Duane R. Korth and Kathryn A. Korth
(Homeowners) purchased a residential lot from Developer which
was subject to the restrictive covenants. Homeowners
submitted plans for construction of a residence on their
purchased lot to Developer as required by the covenants.
After the residence was built, Homeowners spoke to Developer
and proposed to paint their residence blue. Developer denied
this proposal and recommended that they choose an earth-tone
color instead. Homeowners ultimately painted their residence
in an earth-tone color.
years later, Homeowners informed a member of The Estates at
Prairie Pudge Homeowners Association (the HOA) of their
decision to repaint their residence a shade of blue. The
parties disagreed as to whether the restrictive covenants
required approval of the new paint color, and conflict
ensued. Homeowners ultimately repainted their residence blue,
without seeking or acquiring approval of their chosen paint
the house was repainted, Developer assigned its interests
under the restrictive covenants to the HOA pursuant to
article II, section 1, of the covenants. As Developer's
successor in interest, the HOA filed a lawsuit requesting the
court to, among other things, (1) declare Homeowners to be in
willful violation of certain provisions of the restrictive
covenants, (2) order Homeowners to submit a substitute
earth-tone color to be approved by the HOA, and (3) order
Homeowners to repaint their residence in the approved color.
Motions for Summary Judgment
filing an answer, Homeowners filed a motion to dismiss, which
was converted to a motion for summary judgment. The HOA then
filed its own motion for summary judgment. At a hearing, both
parties presented evidence and argued that there was no
genuine issue of material fact.
Neb. 269] However, the court disagreed and overruled both
motions. It identified issues of fact regarding the HOA's
level of control over color under the restrictive covenants
and whether the particular color violated the restrictive
parties moved for reconsideration of their motions for
summary judgment. At the hearing, Homeowners principally
argued that the HOA had no control over the color of their
residence, because the restrictive covenants did not
specifically refer to exterior paint as an improvement. The
court took the matter under advisement and reviewed
Kalkowski v. Nebraska Nat. Trails Museum
Found. and Tyler v. Tyler to determine that
painting the exterior of a residence can be an improvement or
an ordinary repair, depending on the factual circumstances of
the case. After concluding that this was a disputed factual
issue, the court overruled the parties' motions. The
court later overruled Homeowners' renewed motion for
summary judgment on these same grounds.
trial, an agent of Developer testified over Homeowners'
objection that the intent and purpose of the restrictive
covenants was to give Developer "fairly broad authority
to deal with matters in [the] subdivision" and that
Developer "was to be able to control color." He
further testified that it was the intent of Developer to keep
the development "a very natural, earth tone
environment" in line with its name, The Estates at
Prairie Pudge (Prairie Ridge), and have residences
"blend in with the environment." However, he
admitted that there ...