Skyline Woods Homeowners Assn. v. Broekemeier

agreements, Aragon abandoned the issue by failing to partici-
pate in the litigation, which ultimately resulted in a judgment
against it. In sum, although not named and served with the
third amended complaint, Aragon was in fact on notice as a
party in this lawsuit that appellees believed the agreements
to be invalid. Under the unique facts of this case, Aragon had
an opportunity to, and did in fact, oppose appellees’ efforts
at rescission and we, therefore, find no fault in the Court of
Appeals’ claimed failure to discuss the issue of whether Aragon
was a necessary party to the district court’s consideration of
appellees’ rescission claim.
CONCLUSION
Because we conclude that Aragon had an opportunity to be
heard on its own behalf with respect to its rights under the
assignment and hold harmless agreements in this lawsuit, we
conclude that the Court of Appeals did not err in upholding
the district court’s decision rescinding the agreements. We
conclude that the Court of Appeals did not err in any respect
challenged on further review and, therefore, affirm.
AFFirMed.
wrigHt, J., not participating.
skyline woods HoMeowners A ssociAtion, inc., et Al .,
Appellees And cross -AppellAnts , v. dAvid A.
BroekeMeier , An individuAl , et Al .,
AppellAnts And cross -Appellees.
pAisley, llc, A neBrAskA liMited liABility coMpAny,
Appellee And cross -AppellAnt, v. liBerty Building
corporAtion, A neBrAskA corporAtion,
AppellAnt And cross -Appellee .
758 N.W.2d 376
Filed December 5, 2008. 	Nos. S-07-952, S-07-953.
1. Equity: Appeal and Error. A case in equity is reviewed de novo on the
record, subject to the rule that where credible evidence is in conflict on mate-
rial issues of fact, the appellate court considers and may give weight to the fact
792 	276 NEBrASkA rEPOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

that the trial court observed the witnesses and accepted one version of the facts
over another.
2. Restrictive Covenants: Deeds. It is possible for a restrictive covenant to arise by
implication from the conduct of parties or from the language used in deeds, plats,
maps, or general building development plans.
3. Restrictive Covenants: Property. In order for implied restrictive covenants to
exist, there must be a common grantor of land who has a common plan of devel-
opment for the land.
4. Restrictive Covenants: Property: Equity. If there is a common plan of devel-
opment that places restrictions on property use, then such restrictions may be
enforced in equity.
5. Restrictive Covenants: Property: Notice. To enforce an implied restrictive
covenant against a subsequent owner of land, the subsequent purchaser must have
actual or constructive knowledge of the implied restrictive covenant.
6. Restrictive Covenants. Because implied restrictive covenants mandate relaxation
of the writing requirement, courts are generally reluctant and cautious to con-
clude implied restrictive covenants exist.
7. Property: Easements: Sales: Records. When a map or plat showing a park or
other like open area is used to sell property, the purchaser acquires a private right,
generally referred to as an easement, that such area shall be used in the manner
designated. This is a private right, and it is not dependent on a proper making and
recording of a plat for purposes of dedication.
8. Records: Notice: Equity. Nebraska’s recording acts have not abolished the
equity rule as to actual and constructive notice; thus, every purchaser will be
charged with notice of every fact which an inquiry, if made, would have given
him or her.
9. Records: Notice. Pursuant to Neb. rev. Stat. § 76-238 (reissue 2003), any
instrument that must be recorded, but is not, shall not be enforced against subse-
quent purchasers without notice.
10. Bankruptcy: Restrictive Covenants. restrictive covenants are not extinguish-
able in a bankruptcy proceeding, unless otherwise required by statute.
11. Nuisances: Real Estate: Words and Phrases. A private nuisance is a nontres-
passory invasion of another’s interest in the private use and enjoyment of his or
her land.
12. Appeal and Error. To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the brief of the party
assigning the error.
13. ____. An appellate court will not consider an issue on appeal that was not pre-
sented to or passed upon by the trial court.
Appeals from the District Court for Douglas County: peter
c. BAtAillon, Judge. Judgment in No. S-07-952 affirmed as
modified. Appeal in No. S-07-953 dismissed.
David A. Domina and Brian E. Jorde, of Domina Law
Group, P.C., L.L.O., for appellants.
SkYLINE WOODS HOmEOWNErS ASSN. v. BrOEkEmEIEr 	793
Cite as 276 Neb. 792

James D. Sherrets and Diana J. Vogt, of Sherrets & Boecker,
L.L.C., for appellees Skyline Homeowners Association, Inc., et
al., in No. S-07-952.
James E. Lang and kathleen m. Foster, of Laughlin, Peterson
& Lang, for appellee Paisley, LLC, in No. S-07-953.
H eAvicAn, 	c.J., 	wrigHt, 	connolly, 	gerrArd, 	stepHAn,
MccorMAck , and M iller-lerMAn, JJ.
MccorMAck , J.
I. NATUrE OF CASE
Liberty 	Building 	Corporation 	(Liberty) 	and 	its 	owners
appeal from the district court’s order finding that the property
purchased by Liberty in a chapter 11 bankruptcy sale is bur-
dened by restrictive covenants limiting its use to a golf course.
Liberty wished to develop the property for other purposes, but
homeowners adjacent to the property filed suit to compel its
continued maintenance as a golf course. The parties dispute
whether implied enforceable restrictive covenants requiring
the property to be maintained and operated as a golf course
run with the land and whether the bankruptcy order autho-
rizing the sale of the property to Liberty extinguished any
such covenants.
II. BACkGrOUND
As early as 1967, the property in dispute was operated as a
golf course, then known as Chapel Hills Farm and Golf Course.
Since that time, its ownership has changed hands many times.
The parties agree, however, that sometime in 1969, a group
of partners, including Seb A. Circo, purchased the golf course
property, although the record does not contain the deed to this
transaction. Between 1969 and 1977, the chain of title for the
golf course property is unclear. Sometime around 1977, Dennis
Circo (Circo), owner of Paisley, LLC, and the chairman of
the board and chief executive officer of Precision Industries,
acquired the golf course. Circo and his father, Seb, eventually
formed a limited partnership called Skyline Golf Club, Ltd.
(Skyline Golf), and changed the name of the golf course to
Skyline Woods.
794 	276 NEBrASkA rEPOrTS

Circo also owned a significant amount of land abutting the
golf course. He eventually developed the “Skyline Woods”
residential area, selling the lots where the plaintiff homeowners
and Circo now live. When selling the lots, Circo advertised the
proximity and existence of the Skyline Woods golf course. In
fact, Circo testified that the golf course was the “center and the
heart” of the residential development project.
In 1990, Circo sold the Skyline Woods golf course to
American Golf Corporation (American Golf). Circo kept the
residential lots that had not yet been sold. Eventually, American
Golf merged with National Golf Operating Partnership, L.P.
Then, the partnership conveyed the property by special war-
ranty deed to Skyline Woods Country Club, L.L.C. (Skyline
Country Club).
1. BAnkruptcy sAle
In late 2004, Skyline Country Club filed for bankruptcy
in the U.S. Bankruptcy Court for the District of Nebraska.
The homeowners in the Skyline Woods development were not
included in the Skyline Country Club creditor’s matrix, and
their claimed restrictive covenants were not specifically raised.
On February 9, 2005, the bankruptcy court entered an order
approving the sale of the golf course property to Liberty, which
is owned and operated by David A. Broekemeier and robin
Broekemeier.
The bankruptcy court’s order approved the sale of the prop-
erty “free and clear of all mortgages, liens, pledges, charges,
. . . easements, options, rights of first refusal, restrictions, judg-
ments, claims, demands, successor liability, defects or other
adverse claims, interests or liabilities of any kind or nature
(whether known or unknown, accrued, absolute, contingent, or
otherwise).” Pursuant to the bankruptcy order, on February 11,
2005, Skyline Country Club issued a warranty deed to Liberty,
conveying the property “free from encumbrance except cov-
enants, easements and restrictions of record.”
2. lAwsuit
Shortly after purchasing the property, David Broekemeier
called a meeting with the members of Skyline Country Club
SkYLINE WOODS HOmEOWNErS ASSN. v. BrOEkEmEIEr 	795
Cite as 276 Neb. 792

to inform them that because of the bankruptcy sale, he was not
bound by their existing membership contracts and would not be
honoring them. Liberty operated the property as a golf course
for only 1 year, did not rehire the staff, and did not honor the
original membership contracts, which brought in $70,000 a
month from the club members. Further, David Broekemeier
testified that he had no intention of reopening the golf course
in its then-present condition.
The condition of the golf course property has deteriorated
since Liberty purchased the property. David Broekemeier him-
self admitted that the property is in a worse condition now than
it was when Liberty purchased it. Circo testified that trees have
been uprooted and left on the property and that water has been
taken out of the pond located on the 12th hole, causing algae
growth and other problems such as an increase in mosquitoes.
A licensed real estate broker testified that the property is in
horrible condition, as the lagoons are unhealthy and the prop-
erty is covered in weeds. In fact, he described the property as
“a real eyesore.”
Skyline Woods Homeowners Association, Inc.; The Villas at
Skyline Woods Homeowners Association; and numerous indi-
vidual homeowners (collectively Homeowners) filed suit against
Liberty and the Broekemeiers in the district court for Douglas
County, Nebraska, to compel Liberty and the Broekemeiers to
maintain the property as a golf course. Homeowners asked the
court to enter a temporary restraining order and temporary and
permanent injunctions ordering Liberty and the Broekemeiers
to cease and refrain from destroying or interfering with the
continued maintenance and operation of the golf course and to
comply with all state and local laws and ordinances regarding
maintenance of private property. Finally, Homeowners asked
the court to award monetary damages.
In a separate action, Paisley filed suit against Liberty, alleg-
ing trespass and breach of restrictive covenants.
3. docuMentAry evidence
At trial, various documents were entered into evidence that
purported to demonstrate an implied restrictive covenant to
maintain the property as a golf course.
796 	276 NEBrASkA rEPOrTS

(a) Land Contract
A land contract was recorded in 1976, wherein Skyline Golf
agreed to sell the property to the “Office of Willis mouttet,
Inc.” The land contract specifically identified the property as a
golf course and clubhouse and required the buyer to maintain
the course in its then “present condition” “during the term of
this agreement to prevent the course from deteriorating.” The
land contract also referenced Willis mouttet’s plan for devel-
oping residential lots in combination with the golf course and
country club. The record is not clear whether ownership of the
property actually passed under the land contract. If it did, the
property was apparently later reconveyed to Skyline Golf.
(b) Declaration of Protective Covenants
A “Declaration of Protective Covenants” was recorded on
April 10, 1981, which placed requirements on homes built
on the residential lots adjacent to the golf course, including
the following:
No unused building material, junk, or rubbish shall be
exposed on any property except during actual building
operations.
. . . No property owner may golf on the fairways just
behind his or her house, nor on any part of the golf course
except starting and paying at the clubhouse.
. . . No perimeter fencing shall be allowed. . . .
. . . .
. . . No trees with trunks over one inch in diameter shall
be moved, removed, damaged or destroyed without prior
written approval of the Architectural Control Committee.
(c) Second Amendment to Declaration
of Protective Covenants
In 1983, Skyline Golf recorded a “Second Amendment to
Declaration of Protective Covenants” burdening the abutting
residential lots. The second amended covenants added the
requirement that “[t]he windows of all dwellings shall have a
protective covering consisting of (i) plexiglass, (ii) laminated
glass, (iii) tempered glass, (iv) a wire screen or (v) such other
protective covering as may be approved by the Architectural
Control Committee.”
SkYLINE WOODS HOmEOWNErS ASSN. v. BrOEkEmEIEr 	797
Cite as 276 Neb. 792

(d) Third Amendment to Declaration
of Protective Covenants
Skyline Golf recorded a “Third Amendment to Declaration
of Protective Covenants” in 1985. This amendment created an
architectural control committee “‘[i]n order to maintain and
establish continuity, integrity, beauty and uniqueness of the
development.’”
(e) ratification and reaffirmation of Declaration
of Protective Covenants
In 	1986, 	Skyline 	Golf 	recorded 	a 	“ratification 	and
reaffirmation of Declaration of Protective Covenants.” This
document includes the following statement of intent:
NOW, THErEFOrE, with the intent of establishing
a general plan for the development and use of the afore-
described property meant to secure the enforcement of
the existing restrictions and covenants upon the usage and
development of all said lots, Declarant hereby announces,
ratifies and reaffirms the Original Covenants . . . and
announces and declares that said covenants are and shall
be binding upon, [and] adhere to the benefit of, and apply
to [Skyline Golf], as well as its respective successors and
assigns . . . .
(f) Golf Easement
On may 18, 1990, Circo recorded an easement against the
properties of homeowners in the Skyline Woods subdivision
to ensure the use of the property as a golf course was not dis-
turbed by the adjacent homeowners. It required that golf balls
be allowed to go through the air and across the homeowners’
grass. Specifically, the golf easement states:
Grantor reserves an easement as hereafter described, in
the entire airspace above, and upon the entire real prop-
erty and improvements described in [the legal description]
attached hereto, to permit the doing of every act neces-
sary and proper to the playing of golf on the golf course
(which is the dominant tenement . . . ) adjacent to the land
which is the subject of these restrictions (which is the
subservient tenement . . . ).
798 	276 NEBrASkA rEPOrTS

(g) Purchase Agreement
A 1990 purchase agreement evidenced the sale of the golf
course by Circo to American Golf, although the agreement
was never recorded and does not appear in the chain of title.
Paragraph 9.2 of the purchase agreement states, “Buyer cov-
enants that, subsequent to Closing, it shall maintain the golf
course in a manner and condition equal to or better than the
standard of course maintenance which Seller has applied in its
operation of the course.”
(h) memorandum of Understanding
A 1990 memorandum of understanding (mOU) between
Circo and American Golf provided instructions on necessary
improvements and maintenance of the golf course. The mOU
was not recorded at the time of the purchase, but it was
recorded later, in 1997, as an attachment to an “Assignment of
memorandum rights.” The mOU referenced the unrecorded
purchase agreement and attempted to incorporate the terms of
the purchase agreement by reference.
Paragraph 8 states in pertinent part:
It is understood and agreed to by Seller and Buyer that
any successor Subdivision developer or any successor
Skyline [Woods golf course] titleholder shall be subject
to all of the rights, obligations, terms and conditions of
this [mOU] to the same extent as are Seller and Buyer.
These terms and conditions are intended to and shall be
a covenant running with and burdening all of the land
upon which Seller (or a subsequent titleholder involved
in development and construction of residential housing
for re-sale) may construct residential housing adjacent
to Skyline [Woods golf course] in the future, and shall
also be a covenant running with and burdening Skyline
[Woods golf course], and this covenant may be recorded
at either party’s option.
(i) memorandum of memorandum
of Understanding
On 	December 	28, 	1990, 	the 	parties 	entered 	into 	a
“memorandum 	of 	memorandum 	of 	Understanding,” 	again
SkYLINE WOODS HOmEOWNErS ASSN. v. BrOEkEmEIEr 	799
Cite as 276 Neb. 792

referencing the unrecorded purchase agreement. It again stated
that the terms of the unrecorded purchase agreement “shall
be a covenant running with and burdening the Golf Course,”
but it did not specify the terms of the unrecorded purchase
agreement. This document was recorded on December 31 and
appears in the chain of title.
4. otHer evidence
David Broekemeier admitted he was aware of all the restric-
tions and covenants referencing or affecting the golf course
listed 	above—except 	for 	the 	unrecorded 	purchase 	agree-
ment. Liberty’s title insurance policy specifically excluded
“[e]asements, claims of easement or encumbrances which are
not shown by the public records.” The policy listed as excep-
tions to the golf course property title all the restrictions on the
property appearing of record as well as “[a]ny facts, rights,
interests, or claims which are not shown by the public records
but which could be ascertained by an inspection of said land
or by making inquiry of persons in possession thereof” on
the property.
Additionally, Liberty owns property which abuts Skyline
Woods golf course called ranch View Estates. Liberty adver-
tised the sale of lots in ranch View Estates by referencing
the proximity of the golf course. David Broekemeier also told
prospective purchasers about the proximity to and benefits of
living near the golf course.
5. district court’s orders
On April 26, 2006, the district court issued a temporary
restraining 	order 	against 	Liberty 	and 	the 	Broekemeiers.
The temporary restraining order prohibited Liberty and the
Broekemeiers from taking any actions that would interfere with
or damage the golf course or prevent the property from being
used as a golf course.
On June 13, 2006, the district court consolidated Homeowners’
and Paisley’s causes of action for the convenience of argu-
ments. Also, at that time, the parties entered into a joint stipu-
lation. Under the stipulation, Liberty and the Broekemeiers
agreed to maintain the property in accordance with specified
800 	276 NEBrASkA rEPOrTS

standards during the pendency of the litigation. The joint stip-
ulation mandates, as follows:
1. All fairways and greens on the Golf Course prop-
erty will be mowed within fourteen (14) days of the
execution of this Stipulation. The property will be mowed
from the abutting property owners’ residential lots, out a
distance of 12 to 15 feet into the golf course. All grass
that is to be mowed shall be mowed to a length of five
(5) inches and will be mowed again whenever it achieves
the length of six and one half (6.5) inches. (But not the
rough which shall not be mowed except as otherwise pro-
vided herein.)
2. Any grass clippings or materials will be removed
from the Golf Course property within seven (7) days
after the initial mowing or the same shall be thoroughly
mulched. Thereafter, when cut the grass clippings will
either be removed from the Golf Course property or the
grass will be mulched consistent with proper turf grass
maintenance. Any fallen trees cut down by Defendants on
the property will be removed within thirty (30) days of
the execution of this Stipulation.
3. Steps will be taken to repair the pumps on the Golf
Course property by all necessary and appropriate means,
including obtaining permits or other steps necessary to
provide access to the same.
4. The fairways on the Golf Course property (other
than the greens) will be watered in a prudent manner
so that it will remain green to the point that it not be
allowed to become dormant. To the extent the greens are
already dormant, they need not be watered to counter
their dormancy.
5. The use of “round-up” and other herbicides or weed
killing materials will be applied only to weeds on the
Golf Course property. (Herbicides and other materials
customarily applied to golf courses may be utilized.)
6. Cut trees and/or brush has been placed on the parcel
owned by Paisley LLC by Defendants. Said cut trees and/
or brush will be removed within thirty (30) days from the
execution of this Stipulation.
SkYLINE WOODS HOmEOWNErS ASSN. v. BrOEkEmEIEr 	801
Cite as 276 Neb. 792

7. Defendants may use the well on the Paisley parcel
for irrigation purposes and may access the same as neces-
sary to operate or repair the well but Defendants will not
otherwise go onto the Paisley property. Notwithstanding
the foregoing, access for ingress and egress across the
Paisley property is granted as necessary to effect the pro-
visions of this Order.
On march 28, 2007, the district court granted partial sum-
mary judgment in favor of Homeowners and Paisley on the
issue of whether restrictive covenants “limiting the use of the
property to that of a golf course” ran with the land. In conclud-
ing that restrictive covenants exist burdening the golf course
property, the court relied on these six documents: (1) the 1976
land contract, (2) the 1981 declaration of protective covenants,
(3) the 1983 second amendment to declaration of protective
covenants, (4) the 1990 unrecorded purchase agreement, (5)
the 1990 mOU (not recorded until 1997), and (6) the 1997
assignment of memorandum rights with the attached mOU.
From these documents, the court concluded that the parties
intended that the covenants run with the land. The order did
not conclude that the restrictive covenants required Liberty
and the Broekemeiers to actually operate the property as a
golf course.
The court also concluded that the bankruptcy order did not
sell the property free and clear of the restrictive covenants,
as the restrictive covenants are property rights belonging to
third-party Homeowners. Subsequently, a trial was had on
all the remaining issues except for Paisley’s cause of action
for trespass.
The court’s judgment was against the individual defendants,
David Broekemeier and robin Broekemeier, as well as Liberty.
The record does not reveal that the Broekemeiers challenged
Homeowners’ petition against them as individuals or the dis-
trict court’s order as such. The court overruled Liberty and the
Broekemeiers’ cross-motion for summary judgment. Liberty
and the Broekemeiers moved for a “New Trial” on the sum-
mary judgment proceedings, and Homeowners and Paisley
moved to clarify the order.
802 	276 NEBrASkA rEPOrTS

After the trial, on August 10, 2007, the court issued an order
finding that Homeowners failed to prove their causes of action
for promissory estoppel, intentional misrepresentation, nui-
sance, and breach of contract for third-party beneficiaries. This
order made additional findings as well as restated and consoli-
dated its findings of march 28, 2007.
The August 10, 2007, order concluded and stated that
restrictive covenants burden the golf course property, requir-
ing that Liberty and the Broekemeiers use the property only
as a golf course or maintain the property “in the appropri-
ate fashion as a golf course or an attractive lawn.” The court
specifically ordered that Liberty and the Broekemeiers “prop-
erly and timely” trim, mow, water, and fertilize the grounds;
maintain the trees, shrubs, and other growth on the property;
maintain the ponds so that they are attractive; and maintain the
property in a manner preventing the value of the surrounding
homes from declining.
The court explicitly stated, however, that it was not yet
making any determination as to Paisley’s cause of action for
trespass. While the record reflects that the parties discussed
certifying the August 10, 2007, order pursuant to Neb. rev.
Stat. § 25-1315(1) (Cum. Supp. 2006), the court, in fact, did
not issue any order of certification before the parties’ notices of
appeal were filed with this court.
Following the August 10, 2007, order, Liberty and the
Broekemeiers appealed and Homeowners and Paisley cross-
appealed. On appeal, Liberty and the Broekemeiers filed two
separate notices of appeal. There are separate transcripts on
appeal (because they filed two separate docketing fees), and
separate briefs addressing their respective issues were filed
by Homeowners, case No. S-07-952, and Paisley, case No.
S-07-953. We consolidated the cross-appeals of Homeowners
and Paisley for the purpose of oral argument.
III. ASSIGNmENTS OF ErrOr
Liberty 	and 	the 	Broekemeiers 	allege, 	consolidated 	and
restated, that the district court erred in (1) concluding that the
bankruptcy court’s judgment directing sale and delivery of title
to Liberty left the real estate encumbered by implied restrictive
SkYLINE WOODS HOmEOWNErS ASSN. v. BrOEkEmEIEr 	803
Cite as 276 Neb. 792

covenants requiring the property be maintained as a golf course,
(2) entering judgment against the Broekemeiers as individuals,
and (3) failing to find that Liberty and the Broekemeiers were
protected by Nebraska’s statutes governing the impact of unre-
corded instruments on subsequent purchasers.
On cross-appeal, Homeowners and Paisley assert that the
district court erred in finding it could not order Liberty and the
Broekemeiers to operate the property as a golf course or, alter-
natively, order that the property be sold or leased to an entity
that would operate it only as a golf course. Homeowners also
assigned as error the court’s dismissal of Homeowners’ cause
of action for nuisance.
IV. STANDArD OF rEVIEW
[1] A case in equity is reviewed de novo on the record, sub-
ject to the rule that where credible evidence is in conflict on
material issues of fact, the appellate court considers and may
give weight to the fact that the trial court observed the wit-
nesses and accepted one version of the facts over another.1
V. ANALYSIS
1. Jurisdiction
Before reaching the legal issues presented for review, it is
the power and duty of an appellate court to determine whether
it has jurisdiction over the matter before it irrespective of
whether the issue is raised by the parties.2 When multiple
causes of action are presented or multiple parties are involved
and final judgment is entered as to one of the parties or causes
of action, but not the remaining causes of action or parties,
§ 25-1315(1) mandates the court certify the final judgment in
order for the judgment to be appealable.3 In the present case,
the August 10, 2007, order disposed of all Homeowners’ causes
of action. However, it only disposed of Paisley’s cause of action
for breach of contract and specifically made no determination
as to Paisley’s other cause of action for trespass. We determine
1 Smith v. City of Papillion, 270 Neb. 607, 705 N.W.2d 584 (2005).
2 In re Estate of Potthoff, 273 Neb. 828, 733 N.W.2d 860 (2007).
3 Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007).
804 	276 NEBrASkA rEPOrTS

that the order was final as to Homeowners but not as to Paisley.
We thus lack jurisdiction in case No. S-07-953.
2. covenAnts
[2] We first consider whether the district court was correct in
concluding that an implied covenant restricts Liberty’s land to
usage as a golf course and that Liberty and the Broekemeiers
had constructive notice of such covenant. It is possible for a
restrictive covenant to arise by implication from the conduct
of parties or from the language used in deeds, plats, maps, or
general building development plans.4 Such an implied restric-
tive covenant has been defined as “a covenant which equity
raises and fastens upon the title of a lot or lots carved out of
a tract that will prevent their use in a manner detrimental to
the enjoyment and value of neighboring lots sold with express
restrictions in their conveyance.”5
[3,4] In order for implied restrictive covenants to exist,
there must be a common grantor of land who has a common
plan of development for the land.6 If there is a common plan
of development that places restrictions on property use, then
such restrictions may be enforced in equity.7 “A court’s primary
interest in equity is to give effect to the actual intent of the
grantor . . . by looking not only to language in deeds, but vari-
ously to matters extrinsic to related written documents, includ-
ing conduct, conversation, and correspondence.”8
[5,6] To enforce an implied restrictive covenant against a
subsequent owner of land, the subsequent purchaser must have
actual or constructive knowledge of the implied restrictive
covenant.9 However, it should be noted that because implied
4 9 richard r. Powell & michael Allan Wolf, Powell on real Property
§ 60.03[1] (2000); 20 Am. Jur. 2d Covenants, Etc. § 155 (2005).
5 McCurdy v. Standard Realty Corporation, 295 ky. 587, 588, 175 S.W.2d
28, 29 (1943). See 20 Am. Jur. 2d, supra note 4.
6 Roper v. Camuso, 376 md. 240, 829 A.2d 589 (2003); Annot., 119
A.L.r.5th 519 (2004).
7 Roper v. Camuso, supra note 6.
8 Id. at 261, 829 A.2d at 602.
9 9 Powell & Wolf, supra note 4.
SkYLINE WOODS HOmEOWNErS ASSN. v. BrOEkEmEIEr 	805
Cite as 276 Neb. 792

restrictive covenants mandate relaxation of the writing require-
ment, courts are generally reluctant and cautious to conclude
implied restrictive covenants exist.10
In Wessel v. Hillsdale Estates, Inc.,11 we were faced with
express protective covenants by the developer to preserve land
for a park for the surrounding homeowners’ enjoyment, but the
covenants failed to specify how much land would be set aside
for that purpose. However, the original plat and brochures used
by the developer to sell the lots designated a particular 4.35-acre
lot as “‘Community Unit Area,’” and several covenants made
reference to the variety of uses of the park.12 We concluded
that the protective covenants, read in their entirety, implied an
amount of land “sufficient” for a park and recreational area
with the variety of uses referred to in the covenants.13 While
we did not compel the developer to use the entirety of the 4.35
acres for recreation purposes, we stated that it would be absurd
to conclude that the 50- by 80-foot parcel the developer had
proposed to set aside would be sufficient.14
Instead, we concluded that the amount of land used to build
the park and recreation area had to be in accordance with the
buyer’s expectations, stating:
“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.”15
10 Id.
11 Wessel v. Hillsdale Estates, Inc., 200 Neb. 792, 266 N.W.2d 62 (1978).
12 Id. at 797, 266 N.W.2d at 66.
13 Id. at 801, 266 N.W.2d at 68.
14 Wessel v. Hillsdale Estates, Inc., supra note 11.
15 Id. at 801, 266 N.W.2d at 68 (quoting Lund v. Orr, 181 Neb. 361, 148
N.W.2d 309 (1967)).
806 	276 NEBrASkA rEPOrTS

We ultimately held that 2.35 acres of the lot had to be used for
the conceived park and recreation area.
We have never directly addressed whether a restrictive cov-
enant will be implied simply from a common scheme or plan
where there are no express covenants found in the chain
of title. But other courts faced with a common scheme or
plan have invariably found an enforceable restrictive covenant
where it is sufficiently implied by the conduct and expectations
of the parties and any documents of record or it is known to
the buyer.16
In Shalimar Ass’n v. D.O.C. Enterprises, Ltd.,17 for instance,
the court held that there was an implied restrictive covenant to
maintain property as a golf course despite the fact that there
were no express covenants burdening the golf course property
on behalf of the adjoining homeowners. Nevertheless, all of
the adjacent homeowners’ properties had various easements
and restrictions limiting specific improvements and prohibiting
homeowners from taking certain actions that would interfere
with the use of the adjoining golf course property. moreover,
sales materials the developer distributed to the purchasers of
the adjacent properties represented that there would be a golf
course maintained for their benefit.18
The court concluded that the common plan of development,
which included a golf course, combined with the representa-
tions made to the purchasers about the maintenance of the golf
course and the adjoining homeowners’ express covenants, cre-
ated an implied restrictive covenant that the land be used only
as a golf course.19 The court explained that the homeowners
who purchased property because of the proximity of the golf
16 See, e.g., Shalimar Ass’n v. D.O.C. Enterprises, Ltd., 142 Ariz. 36, 688
P.2d 682 (Ariz. App. 1984). Compare, Warren v. Detlefsen, 281 Ark. 196,
663 S.W.2d 710 (1984); Mackinder v. OSCA Development Co., 151 Cal.
App. 3d 728, 198 Cal. rptr. 864 (1984); Grange v. Korff, 248 Iowa 118,
79 N.W.2d 743 (1956); Arthur v. Lake Tansi Village, Inc., 590 S.W.2d 923
(Tenn. 1979).
17 Shalimar Ass’n v. D.O.C. Enterprises, Ltd., supra note 16.
18 Id.
19 Id.
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course were entitled to ensure their expectations that the golf
course would remain.20
The defendants in Shalimar Ass’n argued that because they
checked the recorded documents against the golf course prop-
erty and no restrictions were found, they should not be bound
by the implied restrictive covenant.21 But the court concluded
that the new owners had constructive notice because they
were aware that the seller of the golf course told the new
owners that the property was restricted to use as a golf course,
they knew the property was being operated as a golf course
at the time of purchase, they knew of a recorded golf course
plat, and they knew that the golf course was surrounded by
residential lots designed to take advantage of the views of the
golf course property.22 The court concluded that the defend-
ants failed to satisfy their duty of inquiry and that, had they
inquired properly, they would have discovered the implied
covenants.23
[7] Similarly, in Ute Park Summer Homes Ass’n v. Maxwell
Land Gr. Co.,24 the court found an implied restriction for the
land’s continuing use as a golf course. Although this case is
not directly on point because it involved a suit by lot owners
directly against the developer and not his successor, the court,
in its decision, focused on the representations made to prospec-
tive purchasers and the materials used in the sales of the lots.25
When the developer in Ute Park Summer Homes Ass’n sold
subdivided lots, he had distributed maps which pictured an area
marked “golf course.”26 After selling these lots, the developer
tried to sell the golf course without any restrictions on its use.27
20 Id.
21 Id.
22 Id.
23 Id.
24 Ute Park Summer Homes Ass’n v. Maxwell Land Gr. Co., 77 N.m. 730,
427 P.2d 249 (1967).
25 Id.
26 Id.
27 Id.
808 	276 NEBrASkA rEPOrTS

Even though the maps had not been recorded and none of the
deeds contained any reference to the map or to any interest in
the golf course, the court concluded that the lot owners had a
legal right to use the area as a golf course.28 The court con-
cluded that when a map or plat showing a park or other like
open area is used to sell property, “the purchaser acquires a
private right, generally referred to as an easement, that such
area shall be used in the manner designated. As stated, this is
a private right, and it is not dependent on a proper making and
recording of a plat for purposes of dedication.”29 Further, the
court noted:
The rationale of the rule is that a grantor, who induces
purchasers, by use of a plat, to believe that streets,
squares, courts, parks, or other open areas shown on the
plat will be kept open for their use and benefit, and the
purchasers have acted upon such inducement, is required
by common honesty to do that which he represented he
would do. It is the use made of the plat in inducing the
purchasers, which gives rise to the legally enforceable
right in the individual purchasers, and such is not depen-
dent upon a dedication to public use, or upon the filing or
recording of the plat.30
In the present case, the record does not contain the plats
or maps to which any of the deeds refer. However, the record
is replete with testimony supporting the existence of a com-
mon scheme of development establishing implied restrictive
covenants. Circo owned both the golf course property and the
developmental property adjacent to the golf course, and he tes-
tified that he developed the residential lots in the subdivision
28 Id.
29 Id. at 735, 427 P.2d at 253 (citing People v. Reed, 81 Cal. 70, 22 P. 474
(1889); East Atlanta Land Co. v. Mower, 138 Ga. 380, 75 S.E. 418 (1912);
Mann v. Bergmann, 203 Ill. 406, 67 N.E. 814 (1903); Will v. City of Zion,
225 Ill. App. 179 (1922); Fisher v. Beard, 32 Iowa 346 (1871); Lord v.
Atkins et al., 138 N.Y. 184, 33 N.E. 1035 (1893); Matter of City of New
York (Edgewater Road), 138 A.D. 203, 122 N.Y.S. 931 (1910); Green v.
Miller, 161 N.C. 24, 76 S.E. 505 (1912)).
30 Ute Park Summer Homes Ass’n v. Maxwell Land Gr. Co., supra note 24,
77 N.m. at 735, 427 P.2d at 253.
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“specifically with the belief and it panned out that the lots
would be more valuable if there was a successful golf course
— actually a country club.” Circo also testified that the golf
course was the “center and the heart” of the residential devel-
opment project. Further, Circo testified that when he sold the
golf course property, he sold it to a buyer, American Golf, that
he was sure would maintain the golf course. Such testimony
from Circo leaves no doubt that the residential lots and golf
course are part of a common scheme and plan.
moreover, Circo sold the residential lots using advertise-
ments that centered around the existence of the golf course and
country club. Circo testified that the marketing plan for the
sale of the residential lots “was an elegant or country club or
leisure lifestyle.” Several homeowners whose homes abut the
golf course testified that they bought their property and paid a
premium price for the property because of the proximity of the
golf course and the lifestyle offered.
Not only did homeowners rely on the existence of the golf
course when purchasing their property, they also have been
required to take certain precautions for their property because
of the golf course. Like Shalimar Ass’n, the homeowners have
recorded restrictions placed on their properties referencing
and affecting the golf course, which supports the existence of
a common scheme or plan giving rise to an implied restric-
tive covenant.
We conclude that homeowners who bought their property
relying on the proximity and existence of the golf course
should be protected by implied restrictive covenants that the
property be maintained as a golf course. We therefore agree
with the district court that an implied restrictive covenant
requiring that it be used only as a golf course burdens and runs
with the golf course property. As to maintenance, we conclude
that the June 13, 2006, joint stipulation entered into between
the parties should continue as the standard of maintenance of
the golf course.
[8] Liberty and the Broekemeiers argue, however, that
even if there is a restrictive covenant running with the land
which would be enforceable against them in common law,
such covenant is unenforceable under Nebraska’s recording
810 	276 NEBrASkA rEPOrTS

statute31 because it was unrecorded. This argument is without
merit. As discussed above, implied restrictive covenants are
only enforceable against a subsequent purchaser who buys the
property and has knowledge of the covenants.32 As we said in
Shonsey v. Clayton,33 “[t]he recording acts have not abolished
the equity rule as to actual and constructive notice.” Under this
rule, we consider whether there are circumstances which, in
the exercise of common reason and prudence, ought to put a
man upon particular inquiry. If so, then the purchaser will be
charged with notice of every fact which an inquiry, if made,
would have given him or her.34
The Broekemeiers had notice of the implied restrictive cov-
enants burdening the golf course property and failed to satisfy
their duty of inquiry. David Broekemeier admitted that he knew
that the property was used as a golf course since the early
1980’s and that he also knew from the title policy of the restric-
tions and requirements placed on the homeowners’ properties
designed to protect the use of the adjacent golf course. To
their detriment, neither the Broekemeiers nor their or Liberty’s
attorneys made any effort to inquire about how the surrounding
homeowners would be protected.
Additionally, Liberty obtained a title insurance policy which
included the restrictions and requirements filed against the
surrounding homeowners’ properties. This policy specifically
excluded “[e]asements, claims of easement or encumbrances
which are not shown by the public records” and listed as
exceptions to the golf course property title all the restrictions
on the property appearing of record as well as “[a]ny facts,
rights, interests, or claims which are not shown by the public
31 Neb. rev. Stat. § 76-238 (reissue 2003).
32 Roper v. Camuso, supra note 6; Shalimar Ass’n v. D.O.C. Enterprises,
Ltd., supra note 16.
33 Shonsey v. Clayton, 107 Neb. 695, 701, 187 N.W. 113, 115 (1922) (citing
Bourland v. The County of Peoria et al., 16 Ill. 538 (1855)).
34 See Shonsey v. Clayton, supra note 33. See, also, McParland v. Peters,
87 Neb. 829, 128 N.W. 523 (1910); Barney v. Chamberlain, 85 Neb. 785,
124 N.W. 482 (1910); Galland v. Jackman, 26 Cal. 79 (1864); Cooper v.
Flesner et al., 24 Okla. 47, 103 P. 1016 (1909).
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records but which could be ascertained by an inspection of said
land or by making inquiry of persons in possession thereof” on
the property. These facts would most certainly alert a potential,
prudent buyer of the possibility of restrictions on its use.
Even more convincing, however, is the fact that before
owning the golf course property, Liberty promoted the sale
of ranch View Estates, property that it owns which abuts the
same golf course. Liberty did this by referencing the proximity
and existence of the golf course. In its advertisements distrib-
uted to potential purchasers, Liberty specifically mapped out
the lots available and made reference to where the golf course
was located. The advertisements for ranch View Estates spe-
cifically state: “Skyline Woods Golf Course is just across the
section,” and the advertisements for ranch View Estates II
state: “All the lots are walkouts. Backing up to Skyline Woods
Golf Course.”
Liberty not only used the proximity of the golf course in
the written advertisements, but David Broekemeier also told
prospective purchasers about the benefits of the golf course
location. A prospective buyer testified that she contacted David
Broekemeier in 2002 about purchasing a lot to build a home in
ranch View Estates. She stated that “[David] Broekemeier said
that what was really nice about the lots was that the golf course
for Skyline Woods was just on the other side, so it was just like
being on the golf course.”
The Broekemeiers undoubtedly knew that abutting property
owners relied on the existence of the golf course and that the
residential lots were designed to benefit from the proxim-
ity of the golf course. Further, David Broekemeier knew of
the recorded restrictions on the homeowners’ properties that
were designed to protect the use of the golf course. If David
Broekemeier had been prudent, he would have inquired further
and found that the surrounding homeowners were protected by
restrictive covenants connected with the golf course. In fact,
Liberty and the Broekemeiers do not actually dispute their
knowledge of the possibility of implied covenants under com-
mon law.
[9] Our recording statute does not change the analysis.
Section 76-238 provides that any instrument that must be
812 	276 NEBrASkA rEPOrTS

recorded, but is not, shall not be enforced against “subsequent
purchasers without notice.”35 As we concluded above, Liberty
and the Broekemeiers were not purchasers without notice of
the restrictions.
We conclude that an implied restrictive covenant existed
which would have required that the property be maintained
as a golf course, pursuant to items (1) through (7) of the joint
stipulation. Furthermore, Liberty and the Broekemeiers had
sufficient knowledge of the existence of the implied covenant
for it to be enforceable against them. We next consider Liberty
and the Broekemeiers’ primary contention that any enforceable
implied covenants that may have existed were extinguished in
the bankruptcy sale.
3. BAnkruptcy sAle
Liberty and the Broekemeiers allege that even if they would
have otherwise been bound by implied restrictive covenants
to maintain the property as a golf course, the bankruptcy
court’s order selling the property to Liberty free and clear of
any interest under 11 U.S.C. § 363(f) (2000) extinguished any
covenants running with the land. Homeowners argue that the
bankruptcy court’s order never purported to extinguish the
restrictive covenants in question in this case. In any event,
Homeowners argue that the bankruptcy court lacked jurisdic-
tion to do so. We conclude that the bankruptcy sale has no
effect on implied restrictive covenants and that as such, Liberty
and the Broekemeiers are still bound by them.
A trustee can only sell property of an estate free and clear
of “any interest” under one of the five circumstances listed in
11 U.S.C. § 363(f):
(1) applicable nonbankruptcy law permits sale of such
property free and clear of such interest;
(2) such entity consents;
(3) such interest is a lien and the price at which such
property is to be sold is greater than the aggregate value
of all liens on such property;
(4) such interest is in bona fide dispute; or
35 See Caruso v. Parkos, 262 Neb. 961, 637 N.W.2d 351 (2002).
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(5) such entity could be compelled, in a legal or
equitable proceeding, to accept a money satisfaction of
such interest.
“Any interest” is not defined by the bankruptcy code.
However, case law demonstrates that the bankruptcy order
authorizing the sale to Liberty did not extinguish the implied
restrictive covenants limiting the property to the use as a golf
course, because such interests are not within the meaning of
“any interest” under § 363(f). The courts addressing whether a
bankruptcy trustee may sell property of an estate free and clear
of restrictive covenants under § 363(f) have all concluded that
such a sale is not permitted.36
For example, the court in In re Oyster Bay Cove, Ltd.37
concluded that the language of § 363(f) does not include
“non-monetary restrictions of record which run with the land.”38
And, in Gouveia v. Tazbir,39 the court reasoned under Indiana
law that because covenants running with land are interests in
property, rather than executory contracts which can be rejected,
11 U.S.C. § 365 (2000) of the bankruptcy code does not apply
to them. Further, restrictive covenants create equitable interests
that do not compel a person to accept a monetary interest;
thus, when restrictive covenants are involved, there is nothing
that can force those who benefit from restrictive covenants to
“forego [sic] equitable relief in favor of a cash award.”40 In In
re Rivera,41 the court concluded that covenants running with
the land are property interests that cannot be removed in a
36 See, Gouveia v. Tazbir, 37 F.3d 295 (7th Cir. 1994); In re WBQ Partnership,
189 B.r. 97 (E.D. Va. 1995); In re Oyster Bay Cove, Ltd., 161 B.r. 338
(E.D.N.Y. 1993); In re 523 E. Fifth St. Housing Pres. Dev. Fund, 79 B.r.
568 (S.D.N.Y. 1987). See, also, Basil H. mattingly, Sale of Property of the
Estate Free and Clear of Restrictions and Covenants in Bankruptcy, 4 Am.
Bankr. Inst. L. rev. 431 (1996).
37 In re Oyster Bay Cove, Ltd., supra note 36.
38 Id. at 343. See, also, Gouveia v. Tazbir, supra note 36; In re 523 E. Fifth
St. Housing Pres. Dev. Fund, supra note 36.
39 Gouveia v. Tazbir, supra note 36.
40 Id. at 299.
41 In re Rivera, 256 B.r. 828 (m.D. Fla. 2000).
814 	276 NEBrASkA rEPOrTS

discharge because to do so would be taking a property interest
away from a third party and giving the debtor a property inter-
est which the debtor never had.
[10] The restatement (Third) of Property42 states: “No servi-
tude, other than a covenant to pay money that is not imposed as
part of a general plan of development, conservation servitude,
or easement arrangement, is extinguishable in a bankruptcy
proceeding, unless otherwise required by statute.” We agree
with the district court that the bankruptcy court’s order did not
extinguish the implied restrictive covenants.
As such, Homeowners’ suit regarding the existence of implied
restrictive covenants is not a collateral attack on the bankruptcy
order. A collateral attack is where a judgment is attacked in
a way other than a proceeding in the original action to have
it vacated, reversed, or modified or a proceeding in equity to
prevent its enforcement.43 Homeowners do not seek to vacate,
reverse, modify, or prevent the enforcement of the bankruptcy
order. Therefore, Homeowners are not collaterally attacking the
bankruptcy order.
4. cross -A ppeAl : scope oF order
The district court ordered that the property be maintained as
a golf course and then set forth certain maintenance require-
ments. Other than contesting the enforceability of the underly-
ing covenants, Liberty and the Broekemeiers do not assert that
particulars of this order were outside the scope of the covenants.
In their cross-appeal, Homeowners assert that the court should
have ordered not just that the property be maintained as a golf
course, but that the court should have also compelled Liberty
to reopen and operate it as such, or sell it to an entity capable
of doing so. Considering the restrictive covenants at the time
the homeowners purchased their lots, we believe they relied
on the atmosphere and beauty that living near a golf course
provides, and they have a right, enforceable against Liberty,
to abut grounds maintained at least to the same standard as set
out in the joint stipulation. However, we are unconvinced that
42 restatement (Third) of Property: Servitudes § 7.9 at 388 (2000).
43 Mayfield v. Hartmann, 221 Neb. 122, 375 N.W.2d 146 (1985).
SkYLINE WOODS HOmEOWNErS ASSN. v. BrOEkEmEIEr 	815
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the implied covenant is so broad that it entails an obligation
to operate the golf course. We find no merit to Homeowners’
allegation that the district court’s order inadequately protected
their rights under the implied covenant.
5. cross -A ppeAl : nuisAnce
[11] As to Homeowners’ contention that Liberty’s actions
constitute a nuisance, we confine ourselves to their argument
in their brief: “The Defendants’ failure to operate the course
or properly maintain the property interferes with the ability
of the homeowners in Skyline Woods and other subdivisions
near the golf course to enjoy their property.”44 “‘“A private
nuisance is a nontrespassory invasion of another’s interest in
the private use and enjoyment of land.”’”45 In an equity action,
“the invasion of or interference with another’s private use and
enjoyment of land need only be substantial.”46 Our court recog-
nizes the principles set forth in restatement (Second) of Torts47
regarding nuisance.48 Specifically, our court recognizes that
§ 822 provides a description of conduct that provides a basis
for nuisance liability.49 Such section states:
One is subject to liability for a private nuisance if,
but only if, his conduct is a legal cause of an invasion
of another’s interest in the private use and enjoyment of
land, and the invasion is either
(a) intentional and unreasonable, or
(b) 	unintentional 	and 	otherwise 	actionable 	under
the rules controlling liability for negligent or reckless
conduct, 	or 	for 	abnormally 	dangerous 	conditions 	or
activities.50
44 Brief for appellees on cross-appeal in case No. S-07-952 at 47.
45 Johnson v. Knox Cty. Partnership, 273 Neb. 123, 131, 728 N.W.2d 101,
108 (2007) (quoting Hall v. Phillips, 231 Neb. 269, 436 N.W.2d 139
(1989), quoting restatement (Second) of Torts § 821D (1979)).
46 Hall v. Phillips, supra note 45, 231 Neb. at 278, 436 N.W.2d at 145.
47 restatement (Second), supra note 45, § 822.
48 Hall v. Phillips, supra note 45.
49 Id.
50 restatement (Second), supra note 45, § 822 at 108.
816 	276 NEBrASkA rEPOrTS

[12] Homeowners’ brief fails to set forth the sufficient facts
that would warrant a finding of nuisance. Instead, Homeowners’
argument that the district court erred in failing to find Liberty
and the Broekemeiers liable for nuisance is merely a restate-
ment of their claim that implied restrictive covenants exist on
the property requiring that the golf course be properly main-
tained. To be considered by an appellate court, an alleged error
must be both specifically assigned and specifically argued in
the brief of the party assigning the error.51 As such, we find no
merit to Homeowners’ cross-appeal that the district court erred
in denying a separate claim for nuisance.
6. BroekeMeiers’ personAl liABility
[13] Finally, we address the Broekemeiers’ argument that
judgment should not have been entered against them, as they
are not proper parties to the claim asserted against them for
violation of protective covenants. The record does not reveal
any evidence that this issue was ever presented to the trial
court. An appellate court will not consider an issue on appeal
that was not presented to or passed upon by the trial court.52 As
such, we find no merit to this assignment of error.
VI. CONCLUSION
As to Homeowners, case No. S-07-952, for the foregoing
reasons, we affirm the order of the district court that the
implied covenants require that the property is to be used only
as a golf course. As to maintenance, the golf course shall be
maintained according to standards (1) through (7) of the June
13, 2006, joint stipulation of the parties. Accordingly, we mod-
ify the district court’s order regarding the required standards
of maintenance.
As to Paisley, case No. S-07-953, we dismiss the appeal for
lack of jurisdiction.
JudgMent in no. s-07-952 AFFirMed As ModiFied.
A ppeAl in no. s-07-953 disMissed.
51 Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007);
Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d
570 (2007).
52 Kubicek v. City of Lincoln, 265 Neb. 521, 658 N.W.2d 291 (2003).
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