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Sheri for premiums paid during the pendency of the dissolution
proceeding or after trial.
We find no abuse of discretion in the duration of the district
court’s alimony award or in its award of $10,000 in attorney
fees to Sheri.
Affirmed as modified.
Sam Grimminger and K ay Grimminger, appellants,
v. James Mudloff, appellee.
___ N.W.2d ___
Filed September 17, 2013. No. A-12-1000.
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. Affirmed.
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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 a dwelling structure and did not violate the “residential
lot” designation contained in the covenants. Finding no error,
we affirm.
FACTUAL BACKGROUND
Restrictive Covenants.
On December 11, 1980, a document entitled “Restrictive
Covenants for Lake of the Woods Subdivision” was recorded
in the office of the register of deeds for Howard County,
Nebraska. These covenants apply to all real property in the
Lake of the Woods subdivision. Since their adoption and
recording in 1980, these covenants have been amended various times. For purposes of this appeal, the latest amendment to
these covenants was recorded on August 31, 2007.
Included in these restrictive covenants are three particular
provisions that are at issue in this case: (1) a “residential lot”
covenant, (2) a “building specifications” covenant, and (3) a
“law suit” covenant. The “residential lot” covenant states that
“[a]ll lots in [the] Subdivision shall be known and described as
Residential lots.” The “building specifications” covenant contains various building specifications to which lot owners are
required to comply, the pertinent part of which states:
No dwelling structure, garage or other incidental building shall be built with scrap lumber, but all
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308 21 NEBRASKA APPELLATE REPORTS
dwellings shall be completed within one (1) year of the
date commenced. No dwelling structure shall be considered complete until it has at least one floor of living
space. No dwelling unit shall have less than 1100 square
feet of living space above ground, shall have at least a
5/12 roof pitch, shall conform to the Howard County
Building Regulations, and shall be set on a permanent
foundation with permanent utility connection. Living
space shall not include garage, breezeway or open or
enclosed porches. Mobile Homes will not be permitted.
All new construction will be approved by an architectural committee comprised of from five to seven lot
owners selected by a majority of the lot owners of all
lots in the subdivisions.
Finally, each lot owner in the subdivision is permitted by
the “law suit” covenant to personally file suit to enforce
these covenants.
Mudloff ’s Lot.
On October 24, 2008, Mudloff acquired a lot in the Lake
of the Woods subdivision. At the time he purchased this lot,
Mudloff was aware that it was subject to the recorded restrictive covenants. Sometime in May 2009, Mudloff submitted
plans to build two buildings on the lot. One building was a
proposed 44- by 77-foot house with an attached garage. The
other proposed building was a 24- by 30-foot detached garage.
The architectural committee approved these plans.
Having received the architectural committee’s approval for
his plans, Mudloff began construction on the detached garage
in May 2009. This building is attached to a permanent foundation and is connected to a septic tank and leachfield that are
large enough to support additional facilities. The building is
720 total square feet and is separated into distinct parts. One
part is 408 square feet, is unfinished, and is used to store
Mudloff’s all-terrain vehicle, riding lawnmower, and golf cart,
along with other outdoor items. The other part of the building is 312 square feet and is partially carpeted and partially
covered in linoleum. This part contains a sink, cabinetry, and
an enclosed half bath. The completed structure has running
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water, indoor plumbing, a permanent utility connection, electrical outlets, heating and cooling, and an attached wood deck.
According to Mudloff, construction of this building was completed in October 2009.
Although Mudloff’s approved plans contained two proposed
buildings, he has built only the detached garage. Sometime
later, the Grimmingers became aware that Mudloff had completed only the detached garage structure and had not taken
steps to construct the accompanying house. While he was
a member of the board of the Lake of the Woods Property
Owners Association, Sam sent Mudloff letters requesting his
attendance at a board meeting for the purpose of discussing
Mudloff’s construction plans and timelines. When Mudloff
had not begun construction on his proposed home a year after
these letters, the Grimmingers determined that he had violated
the covenants and retained legal representation to enforce the
covenants. The Grimmingers believed that Mudloff’s structure did not conform to the restrictive covenants because
it did not contain the minimum square footage and did not
have the compliant “5/12 roof pitch.” On July 14, 2011,
the Grimmingers, exercising their rights to personally sue
to enforce the subdivision’s covenants, filed a complaint in
the district court for Howard County seeking an injunction
against Mudloff.
Trial.
On September 26, 2012, trial was held on the Grimmingers’
complaint. At trial, Sam testified that he believed the covenants
did not allow a lot owner to build a garage on a lot unless there
was an accompanying residence. Sam stated that if Mudloff’s
building was permitted to remain, the covenants would effectively be rendered nonexistent.
Mudloff testified that he believed his structure, as constructed, did not violate the covenants. Mudloff stated that
his structure was not a dwelling and that he did not utilize it
as a dwelling. Photographs of the finished part of the structure show that it contains a lawnmower, a grill, stacked lawn
chairs, a table, and various tools. Mudloff continues to reside
in St. Paul, Nebraska. According to Mudloff, the covenants
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do not require a house to be constructed on a lot in order
for the lot to conform to the covenants. Despite this position, Mudloff testified that he intends to build his proposed
house and would do so as soon as other circumstances in his
life permitted.
A member of the subdivision’s architectural committee testified that Mudloff’s current use of his lot did not violate
the covenants.
District Court Order.
The district court issued its order on September 28, 2012, ruling that Mudloff’s structure did not violate the covenants. In its
findings, the district court concluded that the facts are largely
undisputed and turned to an analysis of whether Mudloff’s
structure was a “dwelling” in violation of the covenants and
whether the covenants’ designation of the phrase “residential
lots” prohibits the construction of such a building without a
residence having first been built. Because the covenants did not
define the term “dwelling,” the court referred to Black’s Law
Dictionary, which generally defined the word “dwelling” as a
house or other structure in which a person lives. Applying that
definition to Mudloff’s garage structure, the court determined
that because Mudloff did not live in the structure, it could not
be considered a dwelling and, therefore, did not violate the
covenants as they relate to dwelling structures.
The district court also considered whether Mudloff violated
the covenants because he had not built a residence on his lot.
The court found that although the covenants designated all lots
in the subdivision as “residential lots,” there was no definition of the phrase “residential lot” in the covenants. The court
determined that a residential lot is commonly intended for use
as a private residence or dwelling and is not utilized for commercial purposes, which would certainly prohibit building and
operating a business on the lots and prohibit construction of
buildings that would interfere with the residential use of the
lots. Concluding that Mudloff was intending to use the lot for
a residence and that the detached garage did not prevent later
construction of a residence or contradict the residential nature
of the lot or subdivision, the court found that the covenants
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had not been violated and dismissed the Grimmingers’ complaint. The Grimmingers appeal from this order.
ASSIGNMENTS OF ERROR
Although the Grimmingers assign six errors, the argument
section of their brief reveals that these six errors can be condensed into two. The Grimmingers contend the district court
erred in (1) determining that Mudloff’s detached garage was
not a dwelling structure and (2) determining that Mudloff
did not violate the “residential lot” designation contained in
the covenants.
STANDARD OF REVIEW
[1,2] An action to enjoin a breach of restrictive use covenants is equitable in nature. Elkhorn Ridge Golf Partnership
v. Mic-Car, Inc., 17 Neb. App. 578,
767 N.W.2d 518 (2009). 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.
Id.
ANALYSIS
[3-5] We begin our analysis of this case by reviewing
some well-established law relating to restrictive covenants.
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. Southwind Homeowners Assn. v. Burden, 283 Neb.
522,
810 N.W.2d 714 (2012). If the language 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.
Id. However, 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.
Id.
[6] 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
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suggested opposing meanings of the disputed instrument does
not necessarily compel the conclusion that the instrument is
ambiguous. Boyles v. Hausmann, 246 Neb. 181,
517 N.W.2d
610 (1994).
Should Mudloff ’s Detached Garage Be
Considered Dwelling Structure?
The Grimmingers contend that Mudloff’s detached garage
is a dwelling structure that violates the covenants. They
argue that because this building contains many amenities that
are typically found in a standard residence, such as running
water, heating and cooling, a half bath, and carpeted floors,
the district court should have considered it a dwelling. The
Grimmingers also contend that the district court should not
have given weight to Mudloff’s testimony that he does not use
the building as a dwelling. Finally, because this building does
not comply with the requirements in the covenants in terms of
its square footage and roof pitch, the Grimmingers argue that
the district court should have granted their requested injunctive relief.
The parties have not cited, nor have we discovered in our
research, any Nebraska case providing a definition of “dwelling structure.” However, the term “dwelling” is defined in
various Nebraska statutes. For the sake of brevity, we list
only three such occurrences. In the criminal law statutes,
“[d]welling” is defined as “a building or other thing which
is used, intended to be used, or usually used by a person for
habitation.” Neb. Rev. Stat. § 28-109(9) (Reissue 2008). See,
also,
Neb. Rev. Stat. § 28-1406(5) (Reissue 2008) (“[d]welling shall mean any building or structure, though movable or
temporary, or a portion thereof, which is for the time being
the actor’s home or place of lodging”). The Nebraska Fair
Housing Act defines “[d]welling” as “any building, structure, or portion thereof which is occupied as or designed or
intended for occupancy as a residence for one or more families
. . . .”
Neb. Rev. Stat. § 20-310 (Reissue 2012). In Nebraska’s
Uniform Residential Landlord and Tenant Act, “[d]welling
unit” is defined as “a structure or the part of a structure that
is used as a home, residence, or sleeping place by one person
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who maintains a household or by two or more persons who
maintain a common household.”
Neb. Rev. Stat. § 76-1410(3)
(Reissue 2009).
More general resources contain similar definitions for dwelling. According to Black’s Law Dictionary 582 (9th ed. 2009),
a “dwelling-house” is defined as “[t]he house or other structure in which a person lives; a residence or abode.” Black’s
Law Dictionary also notes that the term “dwelling-house” is
commonly shortened to “dwelling.” This legal definition of
“dwelling-house” closely relates to the common definition of
dwelling. See Merriam-Webster’s Collegiate Dictionary 360
(10th ed. 2001) (defining “dwelling” as “a shelter (as a house)
in which people live”).
[7] Although the definitions of “dwelling” cited above vary
in their language, it is clear that a dwelling is a structure in
which a person lives or that has been designed for living. Both
parties essentially agree with this definition, but they dispute
whether Mudloff’s structure should be considered a dwelling.
Upon our de novo review of the record, we conclude that the
detached garage structure at issue in this case, although containing various amenities that are commonly found in a dwelling, cannot be considered a dwelling. The part of the structure
that is finished is 312 square feet, which includes a separate
half bath with a sink and toilet, and some cabinetry, a sink, and
a refrigerator in the main area. The main area, which is partially carpeted, serves as additional storage for a lawnmower, a
grill, stacked lawn chairs, and a table. Mudloff does not live in
this structure, but, rather, maintains a house in St. Paul as his
permanent residence. Mudloff testified that his detached garage
structure was not designed for living and could not be utilized
for living because it did not contain a shower or bathtub, a
stove, or a bed.
Having found that the detached garage structure in this case
is not a dwelling, we conclude that it does not violate restrictive covenants. The covenants specify that “dwelling units”
must have a “5/12 roof pitch” and at least “1100 square feet of
living space above ground.” However, because this detached
garage is not a dwelling, it is not subject to these restrictions.
This assigned error is without merit.
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Does Mudloff ’s Current Use of His Lot
Violate Covenants’ Residential
Lot Designation?
As stated above, the covenants state that all lots in the Lake
of the Woods subdivision are to be classified as “residential
lots.” The Grimmingers argue that allowing Mudloff’s current
use of his lot would subvert the intent and purpose of the covenants. They fear that if Mudloff is permitted to use his lot in
its current state, many other substandard structures would also
be allowed in the subdivision.
[8] The restrictive covenants do not contain any definition of
the phrase “residential lot” in the recorded instrument or subsequent amendments. However, the Nebraska Supreme Court
has had occasion to consider restrictive covenants containing
similar language. In Reed v. Williamson, 164 Neb. 99, 104,
82 N.W.2d 18, 22 (1957), the Supreme Court construed the
meaning of a restrictive covenant which provided that “‘[n]o
lot shall be used except for residential purposes.’” Determining
that the term “residential” prohibited the affected real property
from being utilized for commercial purposes, the Supreme
Court held that the proposed use of the affected property for
the production of oil and gas would violate the covenants.
See
id.
In Lake Arrowhead, Inc. v. Jolliffe,
263 Neb. 354, 356,
639 N.W.2d 905, 908 (2002), the Nebraska Supreme Court
construed a restrictive covenant which provided that “‘[a]ll
lots shall be used as residential lots except Lot 1, Block 14,
which may be used for commercial use.’” Adopting the
meaning of “residential” from Reed v.
Williamson, supra, the
Supreme Court concluded that the defendant’s use of his lot
inside the subdivision for the purpose of accessing property
outside the subdivision did not disturb the residential designation in the restrictive covenants. Lake Arrowhead, Inc. v.
Jolliffe, supra.
We adopt and apply the Supreme Court’s conclusion as to
the meaning of “residential” in our analysis of these covenants.
Having done so, we determine that Mudloff’s current use of
his lot does not violate the covenants. There is no evidence in
the record that Mudloff has used his lot for any commercial
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purpose. Additionally, and contrary to the Grimmingers’ assertions, there is nothing in the covenants that affirmatively
requires a lot owner to construct a residence on his or her
lot before building any incidental structure in order to be in
compliance with the residential designation. If the subdivision
wished to preclude a lot owner from constructing this type of
structure before constructing a residence, more specific covenants could have been drafted.
Accordingly, we find no violation of the restrictive covenants and determine this error to be without merit.
CONCLUSION
Having determined that Mudloff’s detached garage structure
and current use of his lot do not violate the restrictive covenants, we affirm the district court’s decision.
Affirmed.
