Elkhorn Ridge Golf Partnership v. Mic-Car, Inc.

we conclude that Diers was entitled to interest pursuant to
§ 76-711. We therefore affirm the judgment of the district court
and remand with directions to modify the judgment to expressly
award Diers interest pursuant to § 76-711.
A ffirmed And remAnded with directions.
elkhorn ridge golf PArtnershiP, A nebrAskA generAl
PArtnershiP, et Al ., APPellAnts And cross -APPellees ,
v. mic -cAr , inc., A nebrAskA corPorAtion,
And cArville buttner , APPellees
And cross -APPellAnts.
767 N.W.2d 518
Filed May 5, 2009. 	No. A-08-1076.
1. Actions: Restrictive Covenants: Equity. An action to enjoin a breach of restric-
tive 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. Rules of Evidence: Appeal and Error. In proceedings where the Nebraska
Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make such
discretion a factor in determining admissibility. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the trial court,
the admissibility of evidence is reviewed for an abuse of discretion.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
5. Restrictive Covenants: Injunction: Proof. Where there has been a breach of a
restrictive covenant, it is not necessary to prove that the injury will be irreparable
in order to obtain injunctive relief.
6. Restrictive Covenants: Injunction: Damages. It is a well-defined exception to
the general rule requiring a showing of actual and substantial injury as a basis for
entitlement to injunctive relief, that, where one who has entered into a restrictive
covenant as to the use of the land commits a distinct breach thereof, he may be
enjoined irrespective of the amount of damage caused by his breach, and even if
there appears to be no substantial monetary damage.
7. Restrictive Covenants. A restrictive covenant is to be construed in connection
with the surrounding circumstances, which the parties are supposed to have had
578 	17 NEbRAskA AppEllAtE REpoRts
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

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.
8. Restrictive Covenants: Appeal and Error. When two articles of a restrictive
covenant are clear and unambiguous when read separately, an appellate court
must read the instrument containing the covenants as a whole.
9. Restrictive Covenants. Under Nebraska law, covenants are not ambiguous if
there are not at least two reasonable but conflicting interpretations thereof.
10. ____. When considering a restrictive covenant, a court should keep in mind
that covenants which restrict the use of land are not favored by the law, and, if
ambiguous, they should be construed in a manner which allows the maximum
unrestricted use of the property.
11. ____. Under no circumstances shall restrictions on the use of land be extended by
mere implication.
12. ____. When provisions within an instrument imposing restrictive covenants
irreconcilably conflict, the provision that allows the broadest use of the land
will apply.
13. Appeal and Error. An appellate court is not obligated to engage in an analysis
which is not needed to adjudicate the case and controversy before it.
Appeal from the District Court for Douglas County: mArlon
A. Polk, Judge. Affirmed.
Danny stoller, pro se.
barb stoller, pro se.
Jeff C. Miller and Duncan A. Young, of Young & White,
for appellees.
inbody, Chief Judge, and sievers and cAssel, Judges.
sievers, Judge.
Elkhorn Ridge Golf partnership (Elkhorn Ridge), Danny
stoller, and barb stoller filed suit against Mic-Car, Inc., and
Carville buttner, seeking a temporary and/or permanent injunc-
tion to prevent Mic-Car and buttner from constructing an
apartment building on lots 93 through 95 in the High point
subdivision in Elkhorn, Nebraska. the district court found in
favor of Mic-Car and buttner but denied their counterclaim
against Elkhorn Ridge and the stollers. We address the issue of
the enforcement of two restrictive covenants in the same instru-
ment that are in irreconcilable conflict.
ElkHoRN RIDGE GolF pARtNERsHIp v. MIC-CAR, INC. 	579
Cite as 17 Neb. App. 578

FACtUAl AND pRoCEDURAl bACkGRoUND
Restrictive covenants against lots 92 through 103 of the
High point subdivision in Elkhorn had been filed in November
1987. All such lots were replatted and renamed in 1999, but
for the sake of clarity, we will use the original lot numbers.
Elkhorn Ridge owns lots 96, 97, and 103 and part of lot
98. the stollers own part of lots 98 and 100 and all of lot
99. Elkhorn Ridge constructed a golf course on lot 103. the
stollers constructed their home on lot 99. In 2005, Mic-Car,
whose president, board of directors chairman, and majority
stockholder is buttner, purchased lots 93 through 95. In
2007, buttner obtained a building permit issued by the city
of Elkhorn for construction of the Elkhorn Apartments, which
would cover all three lots owned by Mic-Car. the plans for
the Elkhorn Apartments specified that there would be 10 one-
bedroom apartments with 752.6 square feet apiece and 8 two-
bedroom apartments with 912.9 square feet apiece.
on February 16, 2007, Elkhorn Ridge and the stollers filed
suit against Mic-Car and buttner, seeking an injunction and
alleging that the plans and specifications for the new apart-
ment building they were planning to build did not meet the
requirements set forth in the applicable two restrictive cov-
enants. there are two restrictive covenants pertinent to this
case. the first paragraph of article III, § 8, of the covenants
provides: “Except lots designated in Article IV herein, all lots
within the properties shall be used only for detached single
family residences, and not more than one single family dwell-
ing with garage attached shall be erected, altered, placed
or permitted to remain on any one of said lots.” Article III,
§ 8, goes on to specify various building restrictions pertain-
ing to telephone and electrical power lines, completion time
for construction, height, garages, and setback requirements.
this section also includes the following language: “the
above ground total finished living area of every multifamily
single dwelling shall be not less than 1,250 square feet.”
(Emphasis supplied.)
Article IV, § 1, of the restrictive covenants provides that
“lots 92 thru 103, inclusive, as shown on the plat, are zoned R3;
but no building or structure may be erected thereon exceeding
580 	17 NEbRAskA AppEllAtE REpoRts

two and one-half stories in addition to basement or garden type
apartments.” In the R3 zoning designation, the city of Elkhorn
allowed apartments.
Mic-Car and buttner filed an answer and counterclaim,
alleging Elkhorn Ridge and the stollers violated the restric-
tive covenants by the construction of a clubhouse facility in
2006 on lots 96 and 97 and part of lot 98. Elkhorn Ridge
and the stollers’ answer to the counterclaim alleged that the
counterclaim was barred by waiver, acquiescence, laches,
and equitable estoppel. on February 21, 2007, the district
court for Douglas County issued an ex parte order, tempo-
rarily restraining buttner from starting construction, but on
April 18, the district court issued an order terminating the ex
parte order.
both parties filed motions for summary judgment, which
the court heard on August 9, 2007. the case was submitted
to the court on affidavits and exhibits offered by the parties at
the injunction hearing and at the August 9 hearing. the par-
ties stipulated that the motions for summary judgment were
to be ruled upon, which ruling would be the final order in the
case. the court issued its order on August 31, finding that the
covenant in article III, § 8, of the building restrictions was
unambiguous and, therefore, not subject to interpretation or
construction by the court and that the lots owned by Mic-Car
and buttner were not subject to the restrictions found therein.
the court also found that the restrictive covenants found in
article IV did apply to the lots owned by Mic-Car and buttner,
but that the building plans offered by Mic-Car and buttner
complied with such. the court denied the motion for sum-
mary judgment by Elkhorn Ridge and the stollers and denied
Mic-Car and buttner’s motion for summary judgment on their
counterclaim. the court further granted Mic-Car and buttner’s
motion for summary judgment as to the allegations in Elkhorn
Ridge and the stollers’ complaint.
Elkhorn Ridge and the stollers appealed to this court, case
No. A-07-990, but on July 1, 2008, we dismissed the case for
lack of jurisdiction because the order was not a final order
due to unresolved issues on the counterclaim. on september
18, the parties submitted another stipulation to the trial court
ElkHoRN RIDGE GolF pARtNERsHIp v. MIC-CAR, INC. 	581
Cite as 17 Neb. App. 578

withdrawing their respective motions for summary judgment,
submitting the case on the exhibits previously received by the
court, and asking the court to decide all issues raised via the
complaint, answers, and counterclaim. the district court then
issued a final order on september 22, finding that Elkhorn
Ridge and the stollers failed to meet their burden of proof
on their original claim and that Mic-Car and buttner failed to
meet their burden of proof on the counterclaim. Judgment was
entered in favor of Mic-Car and buttner, and Elkhorn Ridge and
the stollers’ complaint was dismissed with prejudice. Judgment
was also entered in favor of Elkhorn Ridge and the stollers on
Mic-Car and buttner’s counterclaim, and such counterclaim
was likewise dismissed with prejudice. In short, the trial court
approved the construction of the proposed apartment building.
Elkhorn Ridge and the stollers timely appealed that order, and
Mic-Car and buttner cross-appeal.
AssIGNMENts oF ERRoR
Elkhorn Ridge and the stollers assign as error that the dis-
trict court (1) failed to sustain their objection to exhibit 13; (2)
failed to sustain their objection to exhibit 15; (3) found that the
general building restrictions in article III, § 8, did not apply
to Mic-Car and buttner’s lots; and (4) found that the plans
for Mic-Car and buttner’s apartment building did not violate
the covenant limiting a building to 21⁄2 stories in addition to
basement or garden-type apartments. In their cross-appeal,
Mic-Car and buttner assign as error that the district court (1)
admitted exhibit 10 into evidence and (2) ruled that Elkhorn
Ridge’s use of lots 96 through 98 did not violate the restric-
tive covenants.
stANDARD oF REVIEW
[1,2] An action to enjoin a breach of restrictive use cov-
enants is equitable in nature. 1733 Estates Assn. v. Randolph,
1 Neb. App. 1, 485 N.W.2d 339 (1992). 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
582 	17 NEbRAskA AppEllAtE REpoRts

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. Harders v. Odvody, 261 Neb. 887,
626 N.W.2d 568 (2001).
[3,4] In proceedings where the Nebraska Evidence Rules
apply, 	the 	admissibility 	of 	evidence 	is 	controlled 	by 	the
Nebraska Evidence Rules. State v. Iromuanya, 272 Neb. 178,
719 N.W.2d 263 (2006). Judicial discretion is involved only
when the rules make such discretion a factor in determining
admissibility. Id. Where the Nebraska Evidence Rules commit
the evidentiary question at issue to the discretion of the trial
court, the admissibility of evidence is reviewed for an abuse
of discretion. Id. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. Coral Prod. Corp. v. Central
Resources, 273 Neb. 379, 730 N.W.2d 357 (2007).
ANAlYsIs
Admission of Exhibits 13 and 15.
Exhibit 13 is the affidavit of a licensed real estate agent.
the affidavit contained the agent’s opinion that the area sur-
rounding the lots in question was of mixed use and that
construction of the Elkhorn Apartments would not diminish
the value, integrity, character, or use of the lots owned by
Elkhorn Ridge and the stollers. such exhibit was offered at
the summary judgment hearing on August 9, 2008, after this
court remanded the cause to the trial court. Elkhorn Ridge and
the stollers objected to this exhibit on the ground that it was
irrelevant. the objection was overruled, and exhibit 13 was
received by the court.
[5,6] Elkhorn Ridge and the stollers argue that exhibit 13
is not relevant, because a party seeking an injunction is not
required to show actual damage or irreparable harm. Where
there has been a breach of a restrictive covenant, it is not nec-
essary to prove that the injury will be irreparable in order to
obtain injunctive relief. Breeling v. Churchill, 228 Neb. 596,
423 N.W.2d 469 (1988). It is a well-defined exception to the
general rule requiring a showing of actual and substantial
ElkHoRN RIDGE GolF pARtNERsHIp v. MIC-CAR, INC. 	583
Cite as 17 Neb. App. 578

injury as a basis for entitlement to injunctive relief, that, where
one who has entered into a restrictive covenant as to the use of
the land commits a distinct breach thereof, he may be enjoined
irrespective of the amount of damage caused by his breach, and
even if there appears to be no substantial monetary damage.
Wessel v. Hillsdale Estates, Inc., 200 Neb. 792, 266 N.W.2d
62 (1978).
[7] However, exhibit 13 also describes the nature of the
neighborhood, listing various surrounding uses, and includes
an opinion not only about the impact on the value of the sur-
rounding lots, but also about the impact of the construction of
Elkhorn Apartments on the character, integrity, or use of sur-
rounding lots.
A restrictive covenant is 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 pursu-
ance of a general building plan for the development of
the property.
Lund v. Orr, 181 Neb. 361, 363, 148 N.W.2d 309, 310-11
(1967). because exhibit 13 contains reference to the character
of the neighborhood and surrounding circumstances, we find
that the district court did not abuse its discretion in admitting
exhibit 13 even though evidence of actual damages or irrepa-
rable harm is not required to show a breach of a restrictive cov-
enant. We assume the trial court ignored the irrelevant portions
of the exhibit, as do we in our de novo review.
Exhibit 15 is the affidavit of the attorney for Mic-Car and
buttner, which affidavit included a portion of the court report-
er’s transcription of the proceedings held on April 2, 2007,
when the court heard arguments on the issuance of a temporary
injunction to halt construction of Elkhorn Apartments. Elkhorn
Ridge and the stollers objected to this exhibit on the ground
that it was irrelevant. the court overruled this objection and
received exhibit 15. because the stollers were appearing pro
se, portions of the exhibit may well be relevant as admissions.
584 	17 NEbRAskA AppEllAtE REpoRts

Again, we assume that the trial court ignored the irrelevant
portions. However, the exhibit is not relevant to our analysis
in our de novo review, and thus we simply assume it was error
to admit it, but such is of no consequence in this appeal. thus,
any claimed error is harmless.
Article III, § 8, and Article IV, § 1.
Elkhorn Ridge and the stollers argue that the court erred
in determining that the provisions in article III, § 8, of the
restrictive covenants did not apply to the Elkhorn Apartments.
Article III, § 8, of the restrictive covenants provides: “Except
lots designated in Article IV herein, all lots within the properties
shall be used only for detached single family residences, and
not more than one single family dwelling with garage attached
shall be erected, altered, placed or permitted to remain on any
one of said lots.” Elkhorn Ridge and the stollers also argue that
the court erred in determining that the plans for the Elkhorn
Apartments satisfied the provisions set out in article IV, § 1,
of the restrictive covenants. Article IV, § 1, of the restrictive
covenants states that “lots 92 thru 103, inclusive, as shown
on the plat, are zoned R3; but no building or structure may be
erected thereon exceeding two and one-half stories in addition
to basement or garden type apartments.”
[8] the two provisions—article III, § 8, and article IV, § 1—
are inconsistent and in irreconcilable conflict with each other.
Article III, § 8, addresses all lots within the subdivision, lots
92 through 103, and it provides that “single family residences”
must be built thereupon. However, article III, § 8, begins by
stating, “Except lots designated in Article IV.” And article IV
allows 21⁄2-story apartment buildings. thus, article III, § 8,
excludes from its restrictions those lots designated in article
IV, upon which lots 21⁄2-story apartment buildings may be built.
In other words, when read together, article III, § 8, and article
IV effectively cancel each other. thus, while the language of
the two articles under consideration is clear and unambiguous
when read separately, we must read the instrument containing
the covenants as a whole, and when doing so, the two provi-
sions hopelessly conflict. see, Breeling v. Churchill, 228 Neb.
596, 423 N.W.2d 469 (1988); Ross v. Newman, 206 Neb. 42,
ElkHoRN RIDGE GolF pARtNERsHIp v. MIC-CAR, INC. 	585
Cite as 17 Neb. App. 578

291 N.W.2d 228 (1980); Pool v. Denbeck, 196 Neb. 27, 241
N.W.2d 503 (1976) (covenants to be read and construed as
whole). In saying that the two articles are clear and unambig-
uous when read separately, we ignore the fact that article III,
§ 8, generally requires “single family residences” on the lots
but has a minimum square footage requirement on “multi-
family single dwelling[s].” Frankly, we must concede that we
do not know what a “multi-family single dwelling” might be or
what was intended by this term. Counsel, upon questioning at
oral argument, were not able to convincingly enlighten us. And,
a thorough search did not turn up a single published case, state
or federal, in which this term was used. However, given the
result we reach, thankfully, we do not have to assign a meaning
to the phrase “multi-family single dwelling.”
[9-12] We conclude that the conflicting provisions—article
III, § 8, and article IV—do not make the covenants ambiguous
under Nebraska law, because under the well-known definition
of ambiguity, we cannot find two reasonable but conflicting
interpretations of the interplay between the two covenants. see
Baker’s Supermarkets v. Feldman, 243 Neb. 684, 502 N.W.2d
428 (1993) (instrument is ambiguous when it is susceptible
of at least two reasonable but conflicting interpretations or
meanings). thus, we do not construe, in the typical sense of
the word as used by courts, the covenants at issue, but, rather,
we turn to the general law concerning the reach of covenants
restricting the use of land. see Knudtson v. Trainor, 216 Neb.
653, 655, 345 N.W.2d 4, 6 (1984) (when considering restric-
tive covenant, court should keep in mind that “covenants which
restrict the use of land are not favored by the law, and, if
ambiguous, they should be construed in a manner which allows
the maximum unrestricted use of the property”). Moreover,
under no circumstances shall restrictions on the use of land
be extended by mere implication. Boyles v. Hausmann, 246
Neb. 181, 517 N.W.2d 610 (1994). From this authority, we
conclude that to the extent that article III, § 8, prohibits con-
struction of an apartment building on lots 93 through 95, the
restriction is simply unenforceable, and of no force and effect.
While a reasonably exhaustive search has failed to turn up an
appellate decision, state or federal, with like facts involving
586 	17 NEbRAskA AppEllAtE REpoRts

two conflicting covenants, we believe our holding necessarily
follows from the law disfavoring restrictive covenants, includ-
ing the cited Nebraska precedent. thus, we hold that when
provisions within an instrument imposing restrictive covenants
irreconcilably conflict, the provision that allows the broadest
use of the land will apply. Accordingly, the proposed apartment
building is not prohibited by article III. However, the limitation
that such building cannot be more than 21⁄2 stories in height
found in article IV is valid and enforceable. Accordingly, we
turn to the argument that the proposed apartment building vio-
lates this restriction.
Article IV, § 1.
Article IV, § 1, clearly applies to the apartments proposed
by Mic-Car and buttner and restricts what can be built to 21⁄2
stories plus basement or garden apartments. Elkhorn Ridge
and the stollers argue that the Elkhorn Apartments are three
full stories above grade and that as such, the building exceeds
the foregoing height limitation. there is considerable evi-
dence, however, that Elkhorn Apartments is a 21⁄2-story build-
ing because the lowest floor is considered a basement and not
a story “above grade plane.” Four individuals testified to this
fact. the Elkhorn building inspector testified that for the pur-
poses of the Elkhorn building code, the building qualifies as a
21⁄2-story building because the plans called for dirt to be placed
up against the side of the first floor for more than 50 percent
of the building. An architect testified that pursuant to the 1985
and 1988 Uniform building Codes and the 2003 International
building Code, the lowest level of the Elkhorn Apartments
qualifies as a garden floor or basement because the finished
floor level directly above the garden floor is less than 5 feet 10
inches above grade plane, and that to qualify as a first story, the
finished floor level would have to be more than 6 feet above
grade plane. A civil engineer with a consulting firm in omaha
agreed that under the 2003 International building Code, the
garden level of the Elkhorn Apartments does not qualify as a
story above grade plane, but, rather, qualifies as a basement. A
community planner testified that the proposed building quali-
fies as a 21⁄2-story building because its maximum height is less
ElkHoRN RIDGE GolF pARtNERsHIp v. MIC-CAR, INC. 	587
Cite as 17 Neb. App. 578

than 35 feet, which is the height prescribed as the maximum
height for a 21⁄2-story building in Elkhorn’s zoning regulations.
there is no evidence in the record that the proposed apartment
building is in fact a three-story building according to the vari-
ous applicable building codes. thus, we find that the Elkhorn
Apartments clearly meet the requirements set out in the restric-
tive covenant found in article IV, § 1.
Cross Appeal: Admission of Exhibit 10.
[13] Exhibit 10 is the affidavit of a high school English
teacher for Elkhorn public schools. In her affidavit, she sets
forth her opinion as to how the language in the covenant in
article III, § 8, should be interpreted. Exhibit 10 was received
by the court over an objection on the grounds that the affiant
was not a qualified expert and that the subject of the affi-
davit was not a proper subject for her testimony. the cross-
appeal challenges the admission of this affidavit, but given the
result we have reached above, we need not decide this issue.
An appellate court is not obligated to engage in an analysis
which is not needed to adjudicate the case and controversy
before it. Spanish Oaks v. Hy Vee, 265 Neb. 133, 655 N.W.2d
390 (2003).
Cross Appeal: Elkhorn Ridge’s Compliance
With Other Covenants.
Mic-Car and buttner argue that the district court erred in
finding that Elkhorn Ridge had not violated the restrictive
covenants as to lots 96 through 98. the only evidence in the
record to establish a potential violation of the restrictive cov-
enants by Elkhorn Ridge and the stollers in their use of their
lots is exhibit 14, an affidavit from buttner. In it, he states
that lots 96 and 97 and part of lot 98 are used for facili-
ties, structures, and uses associated with a commercial golf
course, including a parking lot, a storage building, outside
storage of materials, a dumpster, fuel tanks, and other outdoor
equipment storage. We are not persuaded that such use, either
originally or as a result of the new construction in 2006, con-
stitutes a breach of the restrictive covenants upon such lots.
Article III, § 1, specifically states that lots shall be used only
588 	17 NEbRAskA AppEllAtE REpoRts

for residential purposes and not business, professional, trade,
or commercial purposes, except that this prohibition does not
apply to a clubhouse or other necessary structure used in con-
nection with the golf course on lot 103. based upon the clear
and unambiguous language of this provision in the restrictive
covenants, applicable to lots 96 through 98, we find that the
current uses of those three lots as described by buttner in
exhibit 14 do not violate the restrictive covenants. the uses
described are all related and necessary for the operation of
the golf course on lot 103, and therefore, the prohibitions in
article III, § 1, do not apply to such use. We find Mic-Car and
buttner have failed to show that Elkhorn Ridge has violated
any applicable covenant, and therefore, we find this assign-
ment of error lacks merit.
CoNClUsIoN
Although upon different reasoning, we affirm the ruling of
the district court. the restrictive covenant found in article III
does not apply to the Elkhorn Apartments described herein,
and the covenant in article IV, § 1, does apply, but is not vio-
lated by the proposed apartment building. Finding no breach
of either restrictive covenant, we find in favor of Mic-Car
and buttner on these claims. As to the cross-appeal alleging
improper use of lots 96 through 98 by Elkhorn Ridge, we find
such claim lacks merit, because the current use does not violate
any applicable restrictive covenant.
A ffirmed.
ElkHoRN RIDGE GolF pARtNERsHIp v. MIC-CAR, INC. 	589
Cite as 17 Neb. App. 578