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Summer Haven Lake Association, Inc. v. Vlach

Court of Appeals of Nebraska

December 26, 2017

Summer Haven Lake Association, Inc., a Nebraska corporation, appellee and cross-appellant,
v.
Ronald G. Vlach, appellant and cross-appellee, and Victory Lake Marine, Inc., a Nebraska corporation, appellee.

         1. Injunction: Equity: Appeal and Error. An action for injunction sounds in equity. On appeal from an equity action, an appellate court tries 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 conclusion reached by the trial court.

         2. Principal and Agent. If an agent intends to bind his principal, the agent must not only name the principal, but must express by some form of words that the writing is the act of the principal.

         3. Contracts. Extrinsic evidence is not permitted to explain the terms of a contract that is not ambiguous.

         4. Contracts: Intent. When a contract is unambiguous, the intentions of the parties must be determined from the contract itself.

         5. Contracts: Parties: Intent. The interpretation given to a contract by the parties themselves while engaged in the performance of it is one of the best indications of true intent and should be given great, if not controlling, influence.

         6. Corporations. A corporation will be looked upon as a legal entity as a general rule, and until sufficient reason to the contrary appears.

         7. Corporations: Equity: Fraud. In equity, the corporate entity may be disregarded and held to be the mere alter ego of a shareholder or shareholders in various circumstances where necessary to prevent fraud or other injustice.

         8. Waters. The State Boat Act, Neb. Rev. Stat. §§ 37-1201 through 37-12, 110 (Reissue 2016), was enacted to promote safety for persons [25 Neb.App. 385] and property in and connected with the use, operation, and equipment of vessels and to promote uniformity of laws relating thereto.

         9. ___. The State Boat Act applies to any waters within the territorial limits of Nebraska.

         10. ___. The provisions of the State Boat Act and of other applicable laws govern the operation, equipment, numbering, and all other matters relating thereto whenever any vessel shall be operated on the waters of Nebraska or when any activity regulated by the State Boat Act shall take place.

         11. Waters: Administrative Law: Ordinances. The State Boat Act permits the adoption of any ordinance or local law relating to operation and equipment of vessels so long as the provisions of which are and continue to be identical to the provisions of the State Boat Act or rules or regulations issued thereunder.

         12. Waters: Administrative Law. The State Boat Act specifically authorizes the Game and Parks Commission to make special rules and regulations with reference to the operation of vessels on any specific water or waters within the territorial limits of Nebraska.

         13. ___: ___. Pursuant to authority granted by the State Boat Act, the Game and Parks Commission prescribed certain boating regulations contained in the Nebraska Administrative Code, including special rules and regulations for nonpublic lake associations governing operation of vessels on waters administratively controlled by nonpublic lake associations.

         14. Waters: Administrative Law: Words and Phrases. The Nebraska Administrative Code defines a nonpublic lake association as an organization of lakeside residents with administrative control over nonpublic waters of this state.

         15. Contracts: Public Policy. Any contract which is clearly contrary to public policy is void.

         16. Contracts: Parties. A party cannot, by contractual agreement with another party, obtain the power to do something that state law forbids.

         17. Waters: Administrative Law. Any subdivision of this state may at any time make formal application to the Game and Parks Commission for special rules and regulations with reference to the operation of vessels on any waters within its territorial limits and shall set forth therein the reasons which make such special rules or regulations necessary or appropriate.

         18. Injunction. An injunction is an extraordinary remedy, and it ordinarily should not be granted unless the right is clear, the damage is irreparable, and the remedy at law is inadequate to prevent a failure of justice.

         [25 Neb.App. 386] 19. Injunction: Proof. The party seeking an injunction must establish by a preponderance of the evidence every controverted fact necessary to entitle him or her to relief.

         20. Restrictive Covenants: Injunction. A mandatory injunction is an appropriate remedy for a breach of a restrictive covenant.

         21. Appeal and Error. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.

         22. Attorney Fees. Attorney fees and expenses may be recovered only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.

         23. Attorney Fees: Costs. Customarily, attorney fees and costs are awarded only to prevailing parties, or assessed against those who file frivolous suits.

         24. ___: ___. Neb. Rev. Stat. § 25-824(2) (Reissue 2016) permits a court in any civil action to award as part of its judgment and in addition to any other costs otherwise assessed reasonable attorney fees and court costs against any attorney or party who has brought or defended a civil action that alleges a claim or defense which a court determines is frivolous or made in bad faith.

         25. Actions: Attorney Fees: Words and Phrases. The term "frivolous" connotes an improper motive or legal position so wholly without merit as to be ridiculous.

         26. Attorney Fees: Appeal and Error. On appeal, a trial court's decision allowing or disallowing attorney fees for frivolous or bad faith litigation will be ...


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