Latenser v. Intercessors of the Lamb, Inc.

• Decision Date: 27 September 1996
• Docket Number: No. S-94-854,S-94-854
• Citation: 250 Neb. 789,553 N.W.2d 458
• Parties: Frank Nestor LATENSER and Ruth M. Latenser, Appellees, v. The INTERCESSORS OF THE LAMB, INC., Appellant.
• Court: Nebraska Supreme Court

Page 458

553 N.W.2d 458

250 Neb. 789

Frank Nestor LATENSER and Ruth M. Latenser, Appellees, v. The INTERCESSORS OF THE LAMB, INC., Appellant.

No. S-94-854.

Supreme Court of Nebraska.

Sept. 27, 1996.

Syllabus by the Court

1. Injunction: Equity. An action for injunction sounds in equity.

2. Equity: Appeal and Error. In equity actions, an appellate court reviews the factual findings de novo on the record and reaches a conclusion independent of the findings of the trial court.

3. Appeal and Error. Under the law-of-the-case doctrine, the holdings of the appellate court on questions presented to it in reviewing proceedings of the trial court become the law of the case; those holdings conclusively settle, for purposes of that litigation, all matters ruled upon, either expressly or by necessary implication.

4. Appeal and Error. Matters previously addressed in an appellate court are not reconsidered unless the petitioner presents materially and substantially different facts.

5. Injunction: Motions to Vacate. When the circumstances and situation of the parties have changed so that it would be just and equitable to vacate or modify a permanent injunction, the court which granted the injunction may vacate or modify it upon motion.

6. 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.

7. Restrictive Covenants. The law disfavors covenants that restrict the use of land.

8. Injunction: Proof. The burden is on the party seeking modification of a permanent injunction to show a change in circumstance or situation sufficient to warrant such modification.

9. Restrictive Covenants. If the language of a covenant is unambiguous, the covenant shall be enforced according to its plain language and shall not be subject to rules of interpretation or construction.

Monte Taylor of Taylor, Connolly & Kluver, Omaha, for appellant.

H. Daniel Smith of Sherrets Smith & Gardner, Omaha, for appellees.

Before WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

GERRARD, Justice.

The Intercessors of the Lamb, Inc. (Intercessors), appeals from a district court order denying its motion for modification of an injunction. The injunction was imposed due to the Intercessors' use of its property in violation of certain restrictive covenants. On the motion to modify the injunction, the district court found that no significant change had occurred since imposition of the injunction which would warrant modification. We reverse, and remand with directions to vacate the injunction previously entered, as we find a significant change in circumstances has occurred such that the Intercessors is now in compliance with the restrictive covenants.

FACTUAL BACKGROUND

The Intercessors is a Catholic religious order formed as a nonprofit corporation holding tax-exempt status. The organization was founded by Sister Nadine Brown, and its mission is intercessory prayer--i.e., to teach people how to listen and discern the will of God and to pray according to that will. In 1987, the order began the process of securing formal status as a canonical organization within the Roman Catholic Church.

Sister Nadine described the Intercessors as a mixed group of Christians, including priests, laity, and religious hermits, dedicated to prayer. At the time of the hearing on the motion to modify the injunction, the group consisted of four sisters, five brothers, and a priest, all devoted to the full-time work of the organization, and between 30 and 40 laity from several parishes in and around Omaha who participated in weekly meetings on the Intercessors' property.

Parcel A, the property at issue in the instant case, was purchased by the Intercessors in 1985. Parcel A consists of 7 1/2 acres of land in the Ponca Hills area of Omaha on which is located a large house, known as the big house. Prior to the purchase of parcel A, the Intercessors acquired another plot of land, parcel F, consisting of 11 1/2 acres on which is located a house known as the round house. Between the big house and the round house is parcel D, an undeveloped 5-acre tract also owned by the Intercessors. Parcels F and D are not at issue in this case.

Four of the brothers, the priest, and three sisters reside in the big house. Sister Nadine resides in the round house, and one brother lives in the garage associated with the round house. The big house contains a chapel which can accommodate as many as 50 worshippers. Prior to the issuance of the injunction, the big house was used to conduct seminars and workshops concerning prayer. These events usually involved between 20 and 30 participants. Prior to the injunction, the lay members of the Intercessors held their weekly meeting at the big house. At present, this group now meets in the round house.

Parcel A is subject to restrictive covenants which limit its use to, in pertinent part, a single-family dwelling, a church, or accessory building and uses customarily incident to an approved use. However, the covenants do not define what constitutes a single-family dwelling or a church, or the meaning of uses customarily incident to an approved use.

In 1991, the Intercessors announced plans to build a chapel on its undeveloped tract, parcel D. The appellees, Frank Nestor Latenser and Ruth M. Latenser, are adjoining landowners to parcel D. The Latensers sought to enjoin the Intercessors from constructing its chapel by filing suit in the district court. Among the causes of action brought was one alleging that the use of parcel A was in violation of the restrictive covenants. Both parties filed motions for partial summary judgment with respect to this cause of action.

In August 1992, the district court granted summary judgment in favor of the Latensers, finding that the property was not being used as a church or single-family dwelling within the meaning of the covenants. Accordingly, the district court issued an injunction prohibiting such use of the property by the Intercessors. An appeal was taken from this order On September 29, 1992, the Intercessors became an officially recognized organization within the Catholic Church. In May 1994, the Intercessors filed a motion to modify the original injunction. In this motion, the Intercessors assert that the dominant consideration of the district court for issuance of the injunction was that the Intercessors was not a church within the meaning of the restrictive covenants. Thus, reasons the Intercessors, official acceptance into the Catholic Church is a significant change in a controlling fact, and that the organization now qualifies as a "church" within the meaning of the restrictive covenants warrants dissolution of the injunction. The district court denied the motion to modify on August 12, 1994, finding no change in the use of the property in question. In the words of the district court, "[T]he paramount factor is not the organization of the user, but the use to which the property is put that determines whether the use is consonant with the covenants."

however, due to an incomplete bill of exceptions, we affirmed the judgment of the district court as the only issue before us was whether the pleadings were sufficient to support the judgment. Latenser v. Intercessors of the Lamb, Inc., 245 Neb. 337, 513 N.W.2d 281 (1994).

ASSIGNMENTS OF ERROR

The Intercessors assigns that the district court erred in (1) finding there was no change in a controlling fact upon which the earlier injunction was based, (2) ruling that the Intercessors is not a church within the meaning of the restrictive covenants, and (3) failing to strictly construe the restrictive covenants at issue against any limitations on use.

STANDARD OF REVIEW

An action for injunction sounds in equity. Ben Simon's, Inc. v. Lincoln Joint-Venture, 248 Neb. 465, 535 N.W.2d 712 (1995); University Place-Lincoln Assocs. v. Nelsen, 247 Neb. 761, 530 N.W.2d 241 (1995). In equity actions, an appellate court reviews the factual findings de novo on the record and reaches a conclusion independent of the findings of the trial court. Friehe v. Schaad, 249 Neb. 825, 545 N.W.2d 740 (1996); Ben Simon's, Inc. v. Lincoln Joint-Venture, supra.

ANALYSIS

Important to our analysis is the posture of the matter before us. Under the law-of-the-case doctrine, the holdings of the appellate court on questions presented to it in reviewing proceedings of the trial court become the law of the case; those holdings conclusively settle, for purposes of that litigation, all matters ruled upon, either expressly or by necessary implication. Pendleton v. Pendleton, 247 Neb. 66, 525 N.W.2d 22 (1994); Wicker v. Vogel, 246 Neb. 601, 521 N.W.2d 907 (1994). As a result, matters previously addressed in an appellate court are not reconsidered unless the petitioner presents materially and substantially different facts. Pendleton v. Pendleton, supra; McKinstry v. County of Cass, 241 Neb. 444, 488 N.W.2d 552 (1992). However, when the circumstances and situation of the parties have changed so that it would be just and equitable to vacate or modify a permanent injunction, the court which granted the injunction may vacate or modify it upon motion. Wasserburger v. Coffee, 201 Neb. 416, 267 N.W.2d 760 (1978).

Accordingly, we express no view concerning the propriety of the issuance of the injunction by the district court. Instead, the law-of-the-case doctrine requires that we presume the initial injunction to be proper; thus, we confine our analysis to whether there has been a change in circumstances of the parties such that modification of the injunction is now warranted. Therefore, the issue before us devolves into whether there has been a change of circumstances such that the use of parcel A by the Intercessors constitutes that of a church or that of an accessory building or a use customarily incident to a church within the meaning of the restrictive...