City of Newman Grove v. Primrose

• Decision Date: 28 February 1992
• Docket Number: No. S-89-734,S-89-734
• Citation: 240 Neb. 70,480 N.W.2d 408
• Court: Nebraska Supreme Court
• Parties: CITY OF NEWMAN GROVE, Nebraska, a Municipal Corporation, Appellant, v. Dale R. PRIMROSE and Alice H. Primrose, Appellees.

Page 408

480 N.W.2d 408

240 Neb. 70

CITY OF NEWMAN GROVE, Nebraska, a Municipal Corporation, Appellant, v.Dale R. PRIMROSE and Alice H. Primrose, Appellees.

No. S-89-734.

Supreme Court of Nebraska.

Feb. 28, 1992.

Syllabus by the Court

1.Directed Verdict.In order to sustain a motion for a directed verdict, the

court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion.

2.Actions: Injunction: Equity.An action for an injunction sounds in equity.

3.Equity: Courts: Evidence: Appeal and Error.In all appeals from the district court in suits in equity in which review of some or all of the findings of fact of the district court is asked by the appellant, it shall be the duty of the Court of Appeals or the Supreme Court to retry the issue or issues of fact involved in the finding or findings of fact complained of upon the evidence preserved in the bill of exceptions and, upon trial de novo of such question or questions of fact, reach an independent conclusion as to what finding or findings are required under the pleadings and all the evidence without reference to the conclusion reached in the district court or the fact that there may be some evidence in support thereof.

James F. Brogan, Madison, for appellant.

Milo Alexander, Omaha, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

At the close of the plaintiff's evidence, the trial court directed a verdict against the plaintiff, City of Newman Grove(City), and dismissed its petition to enjoin Dale R. and Alice H. Primrose from violating ordinances prohibiting storage of "junk" motor vehicles on their residentially zoned property.The City appeals.

In order to sustain a motion for a directed verdict ... the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion.Patterson v. Swarr, May, Smith & Anderson, 238 Neb. 911, 473 N.W.2d 94(1991).

Because we find that the City's evidence establishes a prima facie case that an ordinance was violated, we reverse the decision of the district court for Madison County and remand the cause for a new trial.

An action for an injunction sounds in equity.Kaiser v. Western R/C Flyers, 239 Neb. 624, 477 N.W.2d 557(1991).

In all appeals from the district court in suits in equity in which review of some or all of the findings of fact of the district court is asked by the appellant, it shall be the duty of the Court of Appeals or the Supreme Court to retry the issue or issues of fact involved in the finding or findings of fact complained of upon the evidence preserved in the bill of exceptions and, upon trial de novo of such question or questions of fact, reach an independent conclusion as to what finding or findings are required under the pleadings and all the evidence without reference to the conclusion reached in the district court or the fact that there may be some evidence in support thereof.

Neb.Rev.Stat. § 25-1925(Supp.1991).

Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.Baker v. St. Paul Fire & Marine Ins. Co., 240 Neb. 14, 480 N.W.2d 192(1992).

The record reflects that the Primroses owned residential property, zoned R-2 for single-family dwellings, in Newman Grove.Since at least January 1984, the Primroses have stored a number of vehicles in their yard.In March 1988, the City filed an amended petition in the district court, which alleged, in part, violations by the Primroses of its ordinances regarding property zoned R-2 in that "the defendants continuously and habitually keep and store upon said premises, other than in an enclosed building, unlicensed and inoperable motor vehicles."The City asked that the Primroses "be permanently enjoined from storing junk, unlicensed, and inoperable vehicles, and vehicle parts" upon their property, other than storage within an enclosed building.

Relevant portions of the zoning ordinances were received into evidence and made a part of the record.Section 5 of the Supplementary District Regulations in the R-2 zoning ordinance provides that:

1.It is the intent of this regulation to prevent the repair, remodel, assembly, disassembly or storage or standing of any inoperable vehicle other than in an enclosed garage other than in a district permitting and regulating such occurrence.

2.A motor vehicle shall be determined as inoperable when it does not have a current state license plate or when it has a current state license plate, but is disassembled or wrecked in part or whole and is unable to move under its own power.

3.Inoperable vehicles may be stored or may stand only in a...