Summer Haven Lake Association, Inc., a Nebraska corporation, appellee and cross-appellant,
Ronald G. Vlach, appellant and cross-appellee, and Victory Lake Marine, Inc., a Nebraska corporation, appellee.
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.
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.
Contracts. Extrinsic evidence is not
permitted to explain the terms of a contract that is not
Contracts: Intent. When a contract is
unambiguous, the intentions of the parties must be determined
from the contract itself.
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
Corporations. A corporation will be looked
upon as a legal entity as a general rule, and until
sufficient reason to the contrary appears.
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
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
The State Boat Act applies to any waters within the
territorial limits of Nebraska.
___. 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.
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
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.
___: ___. 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.
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.
Contracts: Public Policy. Any contract which
is clearly contrary to public policy is void.
Contracts: Parties. A party cannot, by
contractual agreement with another party, obtain the power to
do something that state law forbids.
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.
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.
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.
Restrictive Covenants: Injunction. A
mandatory injunction is an appropriate remedy for a breach of
a restrictive covenant.
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.
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.
Attorney Fees: Costs. Customarily, attorney
fees and costs are awarded only to prevailing parties, or
assessed against those who file frivolous suits.
___: ___. 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.
Actions: Attorney Fees: Words and Phrases.
The term "frivolous" connotes an improper motive or
legal position so wholly without merit as to be ridiculous.
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 ...