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06/06/2023 09:07 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WATSON V. PICK
Cite as 31 Neb. App. 952
Doug Watson et al., appellees, v.
Michael R. Pick, appellant.
___ N.W.2d ___
Filed May 30, 2023. No. A-22-203.
1. Restrictive Covenants: Equity. An action to enforce restrictive covenants is equitable in nature.
2. 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 court’s determination. However, where the credible
evidence is in conflict on a material issue of fact, the appellate court
considers and may give weight to the circumstances that the trial judge
heard and observed the witnesses and accepted one version of the facts
rather than another.
3. Actions: Parties: Standing: Jurisdiction. Before a party is entitled to
invoke a court’s jurisdiction, that party must have standing to sue, which
involves having some real interest in the cause of action.
4. Actions: Parties: Standing. Whether a party who commences an action
has standing and is therefore a real party in interest is jurisdictional.
Because the requirement of standing is fundamental to a court’s exercise
of jurisdiction, either a litigant or a court can raise the question of standing at any time.
5. Jurisdiction. While parties cannot confer subject matter jurisdiction
upon a judicial tribunal by either acquiescence or consent, nor may
subject matter jurisdiction be created by waiver, estoppel, consent, or
conduct of the parties, such does not prevent a party from conclusively
admitting the truth of an underlying fact required to establish subject
matter jurisdiction by judicial admission.
6. Pleadings: Evidence: Words and Phrases. A judicial admission is a
formal act done in the course of judicial proceedings which is a substitute for evidence, thereby waiving or dispensing with the production
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WATSON V. PICK
Cite as 31 Neb. App. 952
of evidence by conceding for the purpose of litigation that the proposition of fact alleged by the opponent is true.
7. Trial: Attorney and Client. Statements made by a party or the party’s
attorney during the course of a trial may be judicial admissions.
8. Actions: Stipulations. Parties are bound by stipulations that are voluntarily made, and relief from such stipulations is warranted only under
exceptional circumstances.
9. Actions: Pleadings: Notice. Nebraska is a notice pleading jurisdiction.
Civil actions are controlled by a liberal pleading regime; a party is only
required to set forth a short and plain statement of the claim showing
that the pleader is entitled to relief and is not required to plead legal
theories or cite appropriate statutes so long as the pleading gives fair
notice of the claims asserted.
10. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts,
accepted as true, to state a claim to relief that is plausible on its face.
11. Restrictive Covenants: Waiver. The right to enforce restrictive covenants may be lost by waiver or acquiescence or violation of the same.
Whether there has been such a waiver or acquiescence depends upon the
circumstances of each case.
12. ____: ____. Generally, mere acquiescence in the violation of a restrictive covenant does not constitute an abandonment thereof, so long as
the restriction remains of any value, and a waiver does not result unless
there have been general and multiple violations without protest.
13. Restrictive Covenants: Intent. The enforcement of valid restrictive
covenants may be denied only when noncompliance is so general as to
indicate an intention or purpose to abandon the condition.
14. Restrictive Covenants: Waiver. The criteria for determining whether
a waiver of a restrictive covenant has occurred include, but are not
limited to, whether those seeking to enforce the covenants had notice
of the violation and the period of time in which no action was taken,
the extent and kind of violation, the proximity of the violations to those
who complain of them, any affirmative approval of the same, whether
such violations are temporary or permanent in nature, and the amount of
investment involved.
15. 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.
16. 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.
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WATSON V. PICK
Cite as 31 Neb. App. 952
17. ____. 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.
18. 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.
19. Restrictive Covenants: Intent. Restrictive covenants are to be construed in connection with the surrounding circumstances, which the
parties are supposed to have had in mind at the time they made it;
the location and character of the entire tract of land; the purpose of
the restriction; whether it was for the sole benefit of the grantor or
for the benefit of the grantee and subsequent purchasers; and whether
it was in pursuance of a general building plan for the development of
the property.
20. Injunction. Injunctions should never be broader than necessary to
afford complete relief to the plaintiffs.
Appeal from the District Court for Washington County:
John E. Samson, Judge. Affirmed.
Rex J. Moats, of Moats Law Firm, P.C., L.L.O., for appellant.
Brad Entwistle and David P. Wilson, of Walentine O’Toole,
L.L.P., for appellees.
Pirtle, Chief Judge, and Riedmann and Arterburn,
Judges.
Pirtle, Chief Judge.
INTRODUCTION
Michael R. Pick, a property owner and resident of the Spring
Valley subdivision in Fort Calhoun, Nebraska, appeals from
an order of the district court for Washington County granting
a petition for permanent injunction filed on behalf of 11 other
residents of the Spring Valley subdivision (collectively appellees). For the reasons that follow, we affirm.
BACKGROUND
On March 11, 2020, appellees filed a petition for permanent injunction in the district court, alleging that Pick was
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WATSON V. PICK
Cite as 31 Neb. App. 952
violating a number of restrictive covenants applicable to residents of the Spring Valley subdivision and requesting a permanent injunction restraining Pick from continued violations
of the “Spring Valley Protective Covenants” (protective covenants). Appellees’ position was that Pick was violating paragraphs III and VI of the protective covenants. Paragraph III
of the protective covenants contains two clauses, the first
of which provides that “[n]o business, trade, or commercial
activity shall be carried on upon any residential lot.” The
second clause of paragraph III provides that “[n]o noxious or
offensive activity shall be carried on upon any lot, nor shall
anything be done thereon which may be or may become an
annoyance or nuisance to the neighborhood.” Paragraph VI
also contains two clauses, the first of which provides that “[n]o
trash, junk cars or other refuse may be thrown or dumped on
any lot.” The second clause of paragraph VI provides that
“[e]ach owner of a vacant lot is required to keep said lot in
presentable condition and any non-burnable refuse must be
hauled away for disposal.”
With regard to the enforceability of the protective covenants, paragraph IX provides that the covenants “are to run
with the land and shall be binding on all parties and all persons claiming under them . . . unless an instrument signed by
a majority of the then owners of said lots has been recorded,
agreeing to change said covenants in whole or in part.”
Paragraph X further provides:
If the parties hereto, or any of them, or their heirs or
assigns shall violate any of the covenants herein, it shall
be lawful for any person or persons owning any of the
above described property to prosecute any proceedings
at law or in equity against the person or persons violating or attempting to violate any such covenant to either
prevent him or them from so doing or recover damages
for such violation.
Acting pro se, Pick filed an answer to appellees’ petition, denying the pertinent allegations and counterclaiming
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WATSON V. PICK
Cite as 31 Neb. App. 952
for damages resulting from harassment and “[v]iolation of
[Pick’s] civil rights, liberties and freedoms.” On May 4, 2020,
appellees filed a motion to dismiss Pick’s counterclaim for
failure to state a claim upon which relief can be granted.
Appellees argued that Pick failed to allege “when these
alleged violations and harassment occurred or which of the
eleven [appellees] committed them.”
The court granted appellees’ motion to dismiss Pick’s counterclaim on June 17, 2020, but allowed Pick until July 2 to
file an amended counterclaim. Pick filed an amended counterclaim on July 2, alleging that “a small group of surrounding residents of the Spring Valley subdivision have stalked,
harassed, and in general have been nuisances, towards . . .
Pick [in] violation of . . . Picks’ [sic] basic covenants and
rights” to quiet enjoyment of his property. Pick further alleged
various incidents in which “surrounding residents” trespassed
upon his property and took pictures of Pick and the property, as well as one specific incident in June 2020 in which a
named individual was caught on Pick’s property and cited for
criminal trespass. However, that named individual was not a
party to appellees’ petition. Pick ultimately sought an order
requiring each appellee to pay “punitive damages” in the
amount of $10,000.
On August 13, 2020, appellees filed a motion to dismiss
Pick’s amended counterclaim for failure to state a claim upon
which relief can be granted and filed a motion for summary
judgment against Pick on the original petition. With regard to
the motion to dismiss, appellees alleged that Pick failed to cure
the defects in his original counterclaim, because Pick still had
not identified when the alleged conduct occurred or which of
the 11 appellees were alleged to have engaged in such conduct.
On February 24, 2021, the court entered orders granting appellees’ motion to dismiss Pick’s amended counterclaim and denying appellees’ motion for summary judgment.
With regard to the motion to dismiss, the court characterized Pick’s amended counterclaim as containing claims
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WATSON V. PICK
Cite as 31 Neb. App. 952
of trespass, stalking, and harassment against “surrounding
residents.” The court noted that the only individual named
in Pick’s amended counterclaim was an individual that was
not a party to the present action. The court ultimately concluded that Pick failed to “specifically allege any harassment, stalking, or trespass violation by any [appellees] to this
lawsuit,” and thus granted appellees’ motion to dismiss the
amended counterclaim.
With regard to the motion for summary judgment, the court
found genuine issues of material fact as to whether (1) Pick
was carrying on a business, trade, or commercial activity on
the property; (2) Pick’s activities created an annoyance or nuisance to the neighborhood; and (3) Pick had thrown or dumped
trash, junk cars, or other refuse on the lot. Notably, whether
the protective covenants were applicable to the parties and
whether appellees had standing to bring the suit were not disputed facts for trial.
On August 13, 2020, appellees filed a statement of undisputed facts in support of summary judgment, which asserted,
inter alia, that the protective covenants were in full force
and effect and that appellees “have the right and standing to
enforce” them. Thereafter, on October 22, Pick filed a case
brief opposing summary judgment in which he specifically
asserted that “all transferees, grantees, and successors in title”
in the Spring Valley subdivision are subject to the protective
covenants, “including, among others, [appellees] and [Pick].”
After reciting the enforcement provisions quoted above, Pick
added that the protective covenants “continue to run with the
land, including but not limited to the land in Spring Valley
Subdivision owned by [appellees] and [Pick], and are at the
date hereof and [at] all relevant times to these proceedings in
full force and effect.”
A telephonic hearing was held on October 22, 2020, but
there is no record of that hearing on appeal. The day after
that hearing, the district court entered a journal entry memorializing that appellees and Pick had stipulated on the record
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WATSON V. PICK
Cite as 31 Neb. App. 952
that the protective covenants at issue were “in full force and
effect.” In its order denying appellees’ motion for summary
judgment, the court noted that the parties had stipulated that
the protective covenants “are at the date hereof and at all
relevant times to these proceedings in full force and effect”
and that “among others, [appellees] and [Pick]” are subject to
the protective covenants. Finally, at the start of trial, the court
once again confirmed with all the parties that there was “no
issue that the [protective covenants] are in full force and effect
at this time.”
Trial was held on December 8 and 9, 2021. The first witness to testify at trial was appellee Christine M. Ostronic, who
testified that she had lived in the Spring Valley subdivision for
34 years. Ostronic recalled that Pick moved into an adjacent
lot in 2010, and she noticed a continuous stream of what she
described as “junk cars” being hauled onto Pick’s property
beginning in 2011. Ostronic estimated that Pick started with
20 to 50 vehicles in 2011, but that the number had increased
to approximately 150 vehicles covering “[e]very inch” of
Pick’s property at the time of trial. Ostronic testified that the
vehicles consisted of “[v]arious sizes of trucks” and other
heavy machinery.
Ostronic testified that she took pictures of Pick’s property
at various times between 2012 and 2021, for the purpose of
documenting the accumulation of vehicles on Pick’s property and the activities in which Pick was engaged. Ostronic
explained that a number of the pictures depict vehicles or
vehicle parts located on the road outside of Pick’s property
at times when there was apparently “no room” to put the
items on Pick’s property. A number of Ostronic’s pictures
were admitted as evidence and frequently referenced throughout trial. Additional photographic evidence admitted at trial
included aerial images of Pick’s property from 2020 and 2021,
both of which depict numerous vehicles scattered throughout
the property.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WATSON V. PICK
Cite as 31 Neb. App. 952
Ostronic testified that she can hear people working on the
vehicles at the property up to 5 days a week for roughly 8
hours a day. Ostronic described people helping Pick “remove
vehicles, cut them apart, load them on trailers, load them
off trailers, [and] move scrap around.” Ostronic indicated
that these activities produced a substantial amount of noise,
which she could hear from both inside and outside of her
house. Ostronic also recalled at least two reports of catalytic converter thefts on Pick’s property. Ostronic ultimately
opined that Pick kept “[j]unk, scrap” on his property and
that Pick’s activities were noxious and an annoyance to the
neighborhood.
The next witness was appellee Nancy Watson, who testified that she had lived in the Spring Valley subdivision for
almost 44 years. Watson recalled “[j]unk cars coming in and
out” beginning within a couple years of Pick’s moving into
the subdivision around 2010 or 2011. Watson testified that
she can see Pick’s property while driving on the surrounding
roads, and she estimated there were approximately 150 trucks
of various sizes and conditions on his property at the time of
trial. Watson testified that Pick’s activities on the property had
only increased in recent years, and she described the property
as an “eyesore” and a “junkyard.” Watson concurred with
Ostronic that Pick’s property had become “a nuisance” to the
neighborhood. Like Ostronic, Watson took pictures to document Pick’s activities and the state of his property over time.
Watson recalled that she likewise took pictures at various times
between 2012 and 2021, but only six of those pictures, taken
between April and October 2021, were admitted as evidence at
trial. Those six pictures depicted similar scenes to the pictures
taken by Ostronic, with “trucks carrying scrap bumpers, tires,
fenders, . . . junked vehicles, . . . [w]recked vehicles, . . . a
Bobcat [and] a bunch of junk.”
The next witness was appellee Linda M. Dugan, who testified that she and her husband, appellee John P. Dugan, had
lived in the Spring Valley subdivision for approximately 6
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WATSON V. PICK
Cite as 31 Neb. App. 952
years, making her the first witness to have moved into the
subdivision after Pick. Linda testified that they purchased the
property in the summertime and that it was difficult to see
Pick’s property through the trees’ leaves at the time. However,
when they moved into the subdivision that winter, she then
noticed the “junkyard and the junk vehicles” on Pick’s property. Linda and John both testified that they would not have
purchased the property if they had known about the condition
of Pick’s property at the time.
When asked to describe the activity she had observed on
Pick’s property, Linda testified that the property “appears to
be fully engulfed in a massive amount of vehicles in different stages [of disrepair],” adding that Pick’s activity had only
increased over time. As with the previous witnesses, Linda
opined that the property was “a nuisance” to the neighborhood
and “an eyesore.” Linda further expressed concern “for the
long-term value of all of our properties [and] the continuation
of potential theft being generated by [Pick’s] business.” Linda
explained that she was personally aware of at least one report
of a catalytic converter theft on Pick’s property.
Pick was the next witness, and he testified that he owned
several businesses, including “Main Street Auto Sales” (Main
Street Auto) located in Wayne, Nebraska. Pick explained that
he purchased Main Street Auto around 2 years prior to trial,
and he maintained a used car dealer’s license through that
business. According to Pick’s own testimony, his business
activities through Main Street Auto involved the substantial
use of his Spring Valley subdivision property. Pick testified
that he buys vehicles from “all over the world” and stores
them on his property while he works on them and that he
then sells those vehicles under the dealer’s license maintained
through Main Street Auto. Pick testified that prior to purchasing Main Street Auto, he conducted a similar operation for
around 6 years through a pawnshop that he owned. When
asked if he had been involved in the “used car business”
prior to the pawnshop and Main Street Auto, Pick responded,
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WATSON V. PICK
Cite as 31 Neb. App. 952
“Yes . . . I have been repairing, fixing wrecked vehicles since
I was fifteen years old.”
With regard to the state of his property, Pick estimated that
he had 80 to 100 vehicles located on his property at the time
of trial, along with “probably 20 pieces of machinery” like
tractors, “Bobcats,” and “approximately 15 tow trucks.” Pick
also confirmed that at the time he responded to appellees’ discovery request, he had an inventory of roughly 134 vehicles
stored at the property. However, Pick also testified that he
buys, sells, and trades vehicles “every day,” such that many
of the vehicles on that inventory list had likely been relocated
and replaced with new vehicles by the time of trial.
Pick confirmed that in 2013, he was convicted by a jury
on charges that he violated zoning regulations by operating a
“wrecking yard” and a “junk yard” on his property without a
permit. Pick further confirmed that those convictions did not
cause any change in his activities on the property, “Because
in my mind I was doing nothing wrong.” Pick was cited again
for zoning violations in 2016, but the charges were eventually dropped. A number of the other witnesses also noted
that despite two misdemeanor convictions and a subsequent
criminal citation, the degree of Pick’s activities seemed to only
increase over time.
After examining Pick, appellees rested their case in chief.
Pick moved for a directed verdict, which motion the court
denied, and then Pick called various witnesses in his own
behalf. Pick first called appellee Richard A. Schmitt. Schmitt
joined the previous witnesses in describing Pick’s property
as “a nuisance to the neighborhood” and “an eyesore.” Upon
examining the pictures taken by Ostronic and Watson, Schmitt
further described the property as “cluttered,” “obnoxious,”
“messy,” and “very unorganized.” Schmitt noted that the pictures depicted vehicle parts, partial vehicles, damaged vehicles, heavy machinery, trucks carrying vehicles, and vehicles
parked in every direction.
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WATSON V. PICK
Cite as 31 Neb. App. 952
Pick next called appellee John Dugan, who identified Pick’s
property as a “junkyard” and described it as “an eyesore,”
“unsightly,” and “upsetting.” As with Schmitt, Pick had John
examine the pictures taken by Ostronic and Watson. John indicated that none of the individual pictures captured the totality
of Pick’s property, which John described as “a big open area
with a lot of ugly mess.” Pick then called additional appellees—Stacy DeVries, Russell J. DeVries, Kevin Swisher, and
Pamela Swisher—all of whom generally reiterated the testimony of the previous witnesses.
Pick also called A.J. Watson, the son of two appellees, who
confirmed that he started a landscaping business about 22
years prior, when he was in high school and living at his parents’ Spring Valley subdivision address. A.J. explained that at
that time he would mow lawns for the surrounding neighbors,
who would pay $40 for his services. A.J. further testified that
at that time he “was just a kid that would mow the neighbors’
lawn because I needed money,” whereas his current landscaping business was a much larger enterprise that operated out of
an address in Omaha, Nebraska.
Thereafter, Pick testified once again, focusing his attention
on the argument that appellees had waived enforcement of
paragraph III of the protective covenants on account of general noncompliance with the prohibition on “business, trade,
or commercial activity” within the subdivision. Pick offered
exhibit 73, which purported to contain a list of active and
inactive businesses with a connection to Spring Valley subdivision addresses. Pick testified that exhibit 73 was prepared by
his sister and that exhibits 74 through 88 represented Pick’s
attempts to verify the businesses on that list using primarily
internet searches. Exhibits 75, 76, 78, 79, and 86 through 88
were not admitted into evidence for various evidentiary reasons. The remaining exhibits generally consisted of ostensible
connections between a number of the businesses on Pick’s
list and Spring Valley subdivision addresses, but there was
no evidence of actual business activities being carried on
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WATSON V. PICK
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at those addresses. Pick ultimately stated the following regarding the aforementioned exhibits:
I understand that most of these exhibits came from the
Internet and we all know the Internet tells you what it
wants to tell you . . . . I haven’t met any of these people,
I’ve never done business with them, I don’t know what
business they’re in and, you know, I’m taking it at face
value. The Internet is not always right, but it’s pretty
accurate to a certain extent.
Excluding the allegations regarding Pick’s property, none of
the witnesses could identify any other businesses operating
within the subdivision.
In lieu of closing arguments, the court ordered the parties
to submit written briefs. Pick reiterated in his closing brief
that “[appellees] and [Pick]” are subject to the protective
covenants. The court entered its final order on February 28,
2022, which granted appellees’ petition for permanent injunction. The court first examined the language of the protective
covenants in light of Pick’s argument that a number of the
terms were ambiguous. Pick took particular issue with the
allegation that there were “junk cars” thrown or dumped on
his property when the evidence indicated that Pick owned
exclusively trucks. Pick argued the term “junk cars” was
ambiguous as applied to him, suggesting that the term “junk
vehicles” was less ambiguous and should have been used. The
court ultimately determined that the protective covenants at
issue were unambiguous, as the terms used were “all words an
ordinary person understands and should be given their plain
meaning.” Thus, the court went on to apply the protective covenants to the evidence of Pick’s activities, relying primarily
on dictionary definitions of operative terms to ascertain their
plain meaning.
With respect to the first clause of paragraph III, the court
found that Pick was clearly engaged in a business, trade, or
commercial activity at his Spring Valley property, to wit: storing, repairing, and “‘parting out’” used vehicles to be sold
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at another location. The court further found that Pick failed to
show other business activity in the subdivision of “a degree
which would waive enforceability of the Protective Covenant
against [Pick’s] residential lot.” The court acknowledged the
various exhibits offered by Pick in that regard, but the court
also noted that much of that evidence lacked credibility. The
court emphasized that aside from the operation on Pick’s
property, none of the numerous witnesses could identify any
business activity occurring within the Spring Valley subdivision. With respect to the second clause of paragraph III, the
court wrote: “Many neighbors testified and the Court finds
from credible testimony that the business activity carried on
by [Pick] was reasonably offensive to the neighborhood” and
“certainly could reasonably be described to be an annoyance or
nuisance to the neighborhood.”
With respect to paragraph VI of the protective covenants,
the court found that the plain meaning of the term “junk cars”
was “not limited to passenger cars but was intended to mean
‘junk vehicles.’” Accordingly, the court rejected Pick’s proposed distinction between “junk cars” and “junk trucks” and
found that “[t]he testimony of [appellees] and the photographic
evidence presented at trial showed all types of junk vehicles
on the property.” Altogether, the court concluded that appellees had met their burden to prove that Pick was violating
paragraphs III and VI of the protective covenants, and it thus
granted appellees’ request for a permanent injunction.
The court ordered that Pick be immediately and permanently enjoined from continuing to violate the protective covenants in the manner described above and included a detailed
outline of the court’s expectations in that regard. The court
crafted a mitigation timetable, according to which Pick was to
gradually remove the “junk vehicles” from his property over
the course of 4 months. The court further ordered that up to
six appellees, along with counsel, be allowed to enter Pick’s
property under specified circumstances to verify compliance
with the injunction. Finally, the court ordered that Pick may
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store any number of “personal non-commercial motor vehicles” inside the storage buildings located on the property but
shall be limited to “no more than 3 personal motor vehicles”
parked outside of those buildings. Pick appealed.
ASSIGNMENTS OF ERROR
Pick assigns, restated, that the district court erred in (1)
determining that the protective covenants applied and that
appellees had standing to sue, (2) dismissing Pick’s amended
counterclaim, (3) failing to find that enforcement of paragraph
III of the protective covenants had been waived, (4) finding that the terms “noxious or offensive” and “annoyance or
nuisance” were not ambiguous, (5) finding that Pick violated
paragraph VI of the protective covenants, and (6) crafting a
permanent injunction that was overbroad.
STANDARD OF REVIEW
[1,2] An action to enforce restrictive covenants is equitable
in nature. Estates at Prairie Ridge Homeowners Assn. v. Korth,
298 Neb. 266,
904 N.W.2d 15 (2017). 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 court’s
determination.
Id. However, where the credible evidence is in
conflict on a material issue of fact, the appellate court considers and may give weight to the circumstances that the trial
judge heard and observed the witnesses and accepted one version of the facts rather than another. State v. Melcher,
240 Neb.
592,
483 N.W.2d 540 (1992).
ANALYSIS
Subject Matter Jurisdiction.
Pick first assigns that the district court erred in determining that the protective covenants applied to the parties and
that appellees had standing to sue Pick for violation thereof.
Pick does not dispute the parties’ stipulation that the protective covenants were in full force and effect at all pertinent
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times. Rather, Pick suggests that the stipulation improperly
conferred subject matter jurisdiction upon the district court by
consent or acquiescence of the parties. Having characterized
the issue as jurisdictional, Pick asserts he “is permitted to
raise the issue of [appellees’] lack of standing and consequent
lack of subject matter jurisdiction at this stage in the proceedings.” Brief for appellant at 22.
[3] In support of his position, Pick cites Marcuzzo v. Bank
of the West,
290 Neb. 809,
862 N.W.2d 281 (2015), for
the proposition that “subject matter jurisdiction requires that
the party have standing to sue, which involves a real interest in the cause of action.” Brief for appellant at 20. It is true
that the court in Marcuzzo stated, “Before a party is entitled
to invoke a court’s jurisdiction, that party must have standing
to sue, which involves having some real interest in the cause
of action.” Marcuzzo v. Bank of the West,
290 Neb. at 819, 862
N.W.2d at 289. However, we disagree with Pick’s suggestion
that stipulating to the facts underlying appellees’ standing to
sue was tantamount to conferring subject matter jurisdiction
by consent.
[4-8] We have said that the question of whether a party
who commences an action has standing and is therefore a real
party in interest is jurisdictional and that because the requirement of standing is fundamental to a court’s exercise of jurisdiction, either a litigant or a court can raise the question of
standing at any time. Jacobs Engr. Group v. ConAgra Foods,
301 Neb. 38,
917 N.W.2d 435 (2018). While parties cannot
confer subject matter jurisdiction upon a judicial tribunal by
either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of
the parties, such does not prevent a party from conclusively
admitting the truth of an underlying fact required to establish subject matter jurisdiction by judicial admission.
Id. A
judicial admission is a formal act done in the course of judicial proceedings which is a substitute for evidence, thereby
waiving or dispensing with the production of evidence by
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conceding for the purpose of litigation that the proposition
of fact alleged by the opponent is true.
Id. Statements made
by a party or the party’s attorney during the course of a trial
may be judicial admissions. Schroeder v. Barnes,
5 Neb. App.
811,
565 N.W.2d 749 (1997). Parties are bound by stipulations
that are voluntarily made, and relief from such stipulations is
warranted only under exceptional circumstances. Shearer v.
Shearer,
270 Neb. 178,
700 N.W.2d 580 (2005).
In this case, Pick stipulated by judicial admission that the
protective covenants were in full force and effect at all pertinent times and that appellees and Pick were subject thereto.
Prior to trial, appellees and Pick affirmatively alleged in court
filings that the protective covenants were in full force and
effect and binding upon all the parties. It was thus not surprising that shortly after those documents were filed, the parties
stipulated on the record to that fact. Pick then emphasized
throughout trial that the protective covenants were applicable
and binding upon all the parties including himself, because
a central component of his defense revolved around the protective covenants being enforceable against appellees. While
Pick now wishes to litigate these issues, the time to do so has
passed. The fact that the parties stipulated to an underlying
fact that was required to establish subject matter jurisdiction
does not deprive the district court of the same. Thus, we reject
Pick’s first assignment of error.
Motion to Dismiss Amended Counterclaim.
Pick next assigns that the district court erred in granting
appellees’ motion to dismiss Pick’s amended counterclaim.
Pick does not dispute his “failure to specifically name any
of the individual [appellees] in his amended counterclaim.”
Brief for appellant at 24. Rather, Pick argues he referred
to “surrounding residents” and that “should have reasonably
been interpreted to refer to [appellees] as the individuals
who violated his private use and enjoyment of his land.” Id.
We disagree.
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[9,10] Nebraska is a notice pleading jurisdiction. Vasquez v.
CHI Properties,
302 Neb. 742,
925 N.W.2d 304 (2019). Civil
actions are controlled by a liberal pleading regime; a party is
only required to set forth a short and plain statement of the
claim showing that the pleader is entitled to relief and is not
required to plead legal theories or cite appropriate statutes so
long as the pleading gives fair notice of the claims asserted.
Id. To prevail against a motion to dismiss for failure to state a
claim, a plaintiff must allege sufficient facts, accepted as true,
to state a claim to relief that is plausible on its face.
Id.
In the present case, we agree with the district court that
Pick’s amended counterclaim failed to allege facts sufficient
to give fair notice of the claims asserted. While Pick may
have adequately alleged the conduct he complained of, he
failed to allege when such conduct occurred or which of the
individual appellees had engaged in such conduct. We decline
Pick’s invitation to simply interpret the claims against “surrounding residents” as having been leveled against appellees
collectively. Moreover, even if we did accept that argument,
Pick’s allegations would still lack fair notice of claims asserted
against individual appellees. Accordingly, we reject Pick’s second assignment of error.
Waiver and Acquiescence.
Pick next assigns that the district court erred in concluding
that paragraph III of the protective covenants was enforceable
despite Pick’s argument that appellees waived enforcement of
that provision. Specifically, Pick argues that appellees were
aware of the activity on his property for many years before
filing suit and that appellees have acquiesced to the business activity of other Spring Valley subdivision residents in
the meantime.
[11-14] It is well settled in most jurisdictions that the right
to enforce restrictive covenants may be lost by waiver or
acquiescence or violation of the same. Pool v. Denbeck, 196
Neb. 27,
241 N.W.2d 503 (1976). Whether there has been
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such a waiver or acquiescence depends upon the circumstances
of each case.
Id. Generally, mere acquiescence in the violation of a restrictive covenant does not constitute an abandonment thereof, so long as the restriction remains of any value,
and a waiver does not result unless there have been general
and multiple violations without protest. Farmington Woods
Homeowners Assn. v. Wolf,
284 Neb. 280,
817 N.W.2d 758
(2012). Thus, in order to prove a waiver, a defendant must
prove that a plaintiff has waived the covenant through substantial and general noncompliance.
Id. The enforcement of valid
restrictive covenants may be denied only when noncompliance
is so general as to indicate an intention or purpose to abandon the condition.
Id. The criteria for determining whether a
waiver of a restrictive covenant has occurred include, but are
not limited to,
“whether those seeking to enforce the covenants had
notice of the violation and the period of time in which
no action was taken; the extent and kind of violation;
the proximity of the violations to those who complain of
them; any affirmative approval of the same; whether such
violations are temporary or permanent in nature; and the
amount of investment involved.”
Id. at 286-87, 817 N.W.2d at 765.
In the present case, Pick purported to introduce evidence of
a number of businesses conducting business activities in the
Spring Valley subdivision. However, the bulk of that evidence
consisted of website printouts and internet searches revealing
more or less tenuous links between Spring Valley subdivision
addresses and either active or inactive businesses. Each of the
witnesses who were posed with a question regarding business
activity in the subdivision identified Pick’s activities as the
only apparent business operation. None of the evidence offered
by Pick came even remotely close to demonstrating business
activity within the subdivision that was similar in nature and
degree to the activities on Pick’s property.
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Pick is correct to point out that multiple witnesses testified they became aware of his objectionable activities shortly
after he moved to the subdivision in 2010 or 2011 and failed
to sue until roughly 10 years later. However, those witnesses
also testified that they repeatedly complained to the county
authorities about the activities on Pick’s property and that
they hoped that two misdemeanor convictions and a subsequent criminal citation would cause Pick to curb the activities
on his property. However, Pick’s activities only increased,
ultimately prompting appellees to join together and file their
petition. Altogether, we agree with the district court that Pick
failed to prove the sort of substantial and general noncompliance or acquiescence required to establish a waiver of the
protective covenants. As such, we reject Pick’s third assignment of error.
Ambiguity.
Pick’s fourth and fifth assignments of error allege that
the district court erred in its interpretation and application
of paragraphs III and VI of the protective covenants. In his
fourth assignment of error, Pick argues that the terms “noxious
or offensive” and “annoyance or nuisance” were ambiguous
and thus unenforceable. In his fifth assignment of error, Pick
argues that the terms “trash, junk cars or other refuse” were
ambiguous and thus unenforceable and that even if paragraph
VI were enforceable, appellees failed to prove that Pick was
violating the terms thereof.
[15-17] 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.
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[18,19] 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. Estates at Prairie Ridge Homeowners Assn. v.
Korth,
298 Neb. 266,
904 N.W.2d 15 (2017). Restrictive covenants are to be construed in connection with the surrounding
circumstances, which the parties are supposed to have had in
mind at the time they made it; the location and character of
the entire tract of land; the purpose of the restriction; whether
it was for the sole benefit of the grantor or for the benefit of
the grantee and subsequent purchasers; and whether it was in
pursuance of a general building plan for the development of
the property. See Ross v. Newman,
206 Neb. 42,
291 N.W.2d
228 (1980).
The protective covenants expressly declare that the Spring
Valley subdivision lots “shall be known and designated as
residential building plots” and that they were enacted “[f]or
the purpose of providing adequate restrictive covenants for the
mutual benefit of ourselves and successors in title.” Turning
to Pick’s fourth assignment of error, the second clause of
paragraph III of the protective covenants prohibits “noxious
or offensive activity” and any activity that “may be or may
become an annoyance or nuisance to the neighborhood.”
Notably, Pick’s ambiguity argument pertains only to terms
contained in the second clause of paragraph III, and Pick does
not otherwise challenge the district court’s finding that Pick
also violated the first clause of paragraph III prohibiting business activity within the subdivision. Accordingly, even if we
accepted Pick’s argument as to the second clause, Pick’s violation of the first clause would stand. In any case, we decline to
accept Pick’s argument that the second clause of paragraph III
was ambiguous and thus unenforceable.
Pick argues that the terms at issue “do not refer to any particular kinds of activity” and “do not even describe the characteristics of activities which would come within the ambit
of the terms.” Brief for appellant at 32. Contrary to Pick’s
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assertions, we agree with the district court that the provision
clearly and unambiguously encompasses activities which are
characteristically “noxious or offensive” and particular kinds
of activity that “may be or may become an annoyance or
nuisance to the neighborhood.” In the context of the protective covenants, these terms are unambiguous and should be
accorded their plain and ordinary meaning as an ordinary or
reasonable person would understand them. In light of that
and the evidence adduced at trial, we agree with the district
court that the activities on Pick’s property could reasonably
be described as noxious or offensive and an annoyance or nuisance to the neighborhood. Accordingly we reject Pick’s fourth
assignment of error.
With regard to Pick’s fifth assignment of error, the first
clause of paragraph VI of the protective covenants prohibits
the throwing or dumping of any “trash, junk cars or other
refuse” on subdivision lots. The district court narrowed in
on the term “junk cars” and determined that term was unambiguous and “was intended to mean ‘junk vehicles,’” thereby
rejecting Pick’s proposed distinction between the terms “junk
cars” and “junk trucks.” Having so interpreted that language,
the court found an abundance of evidence showing “all types
of junk vehicles on [Pick’s] property.”
Pick seeks to revive the proposed distinction between the
terms “junk cars” and “junk trucks” on appeal. As appellees point out, “[i]f [Pick’s] distinction is accepted, having a
hundred 18-wheelers in your yard would be allowed while a
hundred Toyota Priuses would be a violation.” Brief for appellees at 34. Thus, we agree with appellees that Pick’s “proposed
distinction goes against common understanding of the words
and against the intent of Paragraph VI.” Brief for appellees at
33-34. Pick also suggests that the term “junk cars” should be
interpreted narrowly to include only vehicles that were “useless” and being “discarded.” Brief for appellant at 35. Pick
acknowledges the numerous vehicles located on his property, including various “truck parts . . . tires and bumpers,”
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but he argues those were not “junk cars” because they “were on
the property to be repaired . . . and moved to another location”
as opposed to simply being discarded.
Id. We disagree.
The district court observed that “‘junk’” is generally
defined as “old iron, glass, paper, or other waste that may
be used again in some form; secondhand, or worn and discarded articles; something of poor quality.” The court further observed that “‘car’” is generally defined as “a vehicle
moving on wheels such as an automobile.” In the context of
the protective covenants, we conclude the term “junk cars”
generally encompasses secondhand or used vehicles in a state
of disrepair regardless of whether they are intended to be
repaired and sold or simply discarded. Altogether, we agree
with the district court that the term “junk cars” in paragraph
VI of the protective covenants is unambiguous and clearly
applies to the numerous vehicles that Pick routinely stored on
his property. Accordingly, we reject Pick’s fifth assignment
of error.
Permanent Injunction.
[20] Finally, Pick assigns that the district court erred in
crafting a permanent injunction which was broader than necessary to provide relief to appellees. See Nolan v. Campbell,
13
Neb. App. 212,
690 N.W.2d 638 (2004) (injunctions should
never be broader than necessary to afford complete relief to
plaintiffs). Pick takes issue with two particular provisions
of the injunction: the limitation on the number of personal
vehicles Pick is allowed to store outdoors on his property and
the circumstances under which appellees were authorized to
enter Pick’s property to verify compliance with the injunction.
In contrast, appellees argue that both of these provisions were
necessary for enforcement of the injunction.
With respect to the limitation on personal vehicles, the
court ordered that Pick may store any number of personal
vehicles and other equipment inside the buildings and garage
located on the property. Pick testified, and the photographic
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evidence confirms, that his property contained two outbuildings along with a garage attached to the house. Pick testified
that the smaller of the two outbuildings can store approximately 6 vehicles, and Pick estimated there were at least 13
vehicles in the larger outbuilding at the time of trial. Assuming
the attached garage can store 1 or 2 vehicles, Pick could reasonably store up to 20 or more personal vehicles inside those
buildings; however, the injunction limits Pick to no more than
3 personal vehicles parked outside of those buildings.
Pick argues that limitation sweeps too broadly, as it encompasses activity that does not necessarily violate the terms of
the protective covenants (i.e., parking noncommercial personal
vehicles outside on one’s own property). Appellees counter
that a limit on personal vehicles is necessary because Pick
does not distinguish between vehicles owned in his personal
capacity and those owned pursuant to his used car business. As
such, appellees argue that absent a limitation on personal vehicles, Pick could continue to store any number of vehicles on
the property and “simply say they are his personal vehicles.”
Brief for appellees at 36. In explanation for the limitation, the
district court observed as follows:
The Court acknowledges that under the [protective covenants], there is no restriction on the number of personal
motor vehicles . . . that a person can possess on their
Spring Valley property; provided however, the Court is
also cognizant that [Pick], over approximately 12 years
or so, stored well in excess of an average of 100 pieces
of motor vehicles, equipment, junk, refuse, etc. on his
property at any one time. . . . [P]rovided further that,
the Court is also aware that [Pick] was prosecuted and
found guilty of Washington County Zoning Regulations in
regard to junk vehicles and other junk on his property, and
thereafter, his storage of trash, junk, junk vehicles, salvage materials, refuse, unlicensed motor vehicles, an [sic]
inoperable motor vehicles/trailers/trucks/buses, motor
vehicle parts or tires, equipment increased after the
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successful prosecution against him. With this in mind,
the Court finds that in order to prevent further violations
of the Protective Covenants by [Pick] that it is necessary
to set forth limitations on personal motor vehicles [Pick]
will be allowed to have on [his] property.
(Emphasis in original.) We agree with the district court’s
well-reasoned analysis, and we conclude that, under the circumstances of this case, the limitation on personal vehicles allowed to be stored outdoors on Pick’s property was
not overbroad and was necessary to afford complete relief
to appellees.
With respect to the verification procedure, the court ordered
that “counsel for [appellees] and up to six (6) of [appellees] shall be allowed to enter upon [Pick’s] property, on or
before August 15, 2022,” for the purpose of verifying Pick’s
compliance with the injunction. The court further ordered
that appellees must file a written notice, at least 7 days in
advance, “setting forth the specific date, time . . . and names
of persons” conducting the inspection. The court also specified
that the inspection shall not include entry into Pick’s residence
or attached garage. Under the circumstances of this case, we
conclude that the verification procedure crafted by the district
court was not overbroad and was necessary to afford complete
relief to appellees. Accordingly, we reject Pick’s sixth assignment of error.
CONCLUSION
For the foregoing reasons, we affirm the order of the district
court in its entirety.
Affirmed.
