Walters v. Colford
| Citation | 900 N.W.2d 183,297 Neb. 302 |
| Decision Date | 28 July 2017 |
| Docket Number | No. S-16-641.,S-16-641. |
| Parties | Gary J. WALTERS et al., appellants, v. Steven W. COLFORD et al., appellees. |
| Court | Nebraska Supreme Court |
297 Neb. 302
900 N.W.2d 183
Gary J. WALTERS et al., appellants,
v.
Steven W. COLFORD et al., appellees.
No. S-16-641.
Supreme Court of Nebraska.
Filed July 28, 2017.
Jeffrey A. Silver, Omaha, for appellants.
Todd B. Vetter and Luke P. Henderson, of Fitzgerald, Vetter. Temple & Bartell, Norfolk, for appellees Steven W. Colford and Sara J. Colford.
Robert J. Bierbower, David City, for appellee Daniel F. Adamy.
Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and Funke, JJ.
Wright, J.
I. NATURE OF CASE
At issue in this case is whether the property owned by Steven W. Colford and Sara J. Colford is subject to the neighboring subdivision's restrictive covenants by virtue of the doctrine of implied reciprocal negative servitudes. The
district court concluded that it was not and granted summary judgment to the appellees, the Colfords and Daniel F. Adamy. We affirm.
II. BACKGROUND
1. PROCEDURAL BACKGROUND
The appellants, Gary J. Walters and Denise R. Walters, as cotrustees of the Gary J. Walters and Denise R. Walters Trust; Aaron Schmid; Jacquelyne J. Romshek; and Cory Micek (collectively the plaintiffs), brought suit against the Colfords and Adamy. The suit alleges three claims: mandatory injunction for violation of the neighboring subdivision's restrictive covenants, nuisance (derived from the alleged restrictive covenants violation), conspiracy to violate the restrictive covenants, and invasion of privacy (later voluntarily dismissed without prejudice by the plaintiffs).
The Colfords moved for summary judgment. The district court granted the motion with respect to the mandatory injunction claim and the nuisance claim, but not with respect to the invasion of privacy claim. The court's order did not address the conspiracy claim. The court set a pretrial hearing for the remaining issues in the case. The plaintiffs appealed from the court's order. The appeal was dismissed for lack of a final, appealable order. The plaintiffs then voluntarily dismissed their invasion of privacy claim without prejudice. The Colfords again moved for summary judgment, and Adamy joined this motion. The district court granted the motion with respect to the only remaining issue, the conspiracy claim, concluding that because the covenants did not apply to the Colfords' property, there could be no civil conspiracy to violate the covenants. The plaintiffs appealed, and we subsequently moved this case to our docket.
2. FACTUAL BACKGROUND
The plaintiffs are neighbors to the Colfords. The plaintiffs live in a platted subdivision known as the Adamy subdivision.
The Adamy subdivision was platted and
dedicated in 1976, and the founding documents were filed with the Butler County register of deeds. The plat and dedication included restrictive covenants, which, among other things, limited the structures on the lots to one single-family, two-story house and one two- or three-car garage. The subdivision contains 14 lots created from a piece of property consisting of around 16.5 acres. The Adamy family also owned much of the property adjacent to the subdivision, including the entire quarter-section (approximately 160 acres) of land in which the subdivision was located.
Adamy later sold some of the property adjacent to the Adamy subdivision without restrictive covenants, including to the Walters. Adamy hired two real estate agents to sell some of the lots in the Adamy subdivision that remained unsold as well as some adjoining property. Adamy did not remember when he hired the two agents.
The record contains promotional brochures produced by the two real estate agents advertising the sale of properties owned by Adamy. The brochures listed the property for sale under the names "Adamy Division" and "Valley View Subdivision." The brochures contained maps of the properties for sale, displaying lots within the Adamy subdivision alongside adjacent property owned by Adamy. That adjacent property included portions or all of the property later sold to the Colfords (the Colford Property), a 5-acre parcel immediately to the west of the Adamy subdivision. One of the brochures listed the restrictive covenants applicable to the Valley View subdivision and said, "These covenants may change. Contact listing agents for more information" (emphasis omitted). Adamy testified that he did not approve of any of the advertising materials produced by his real estate agents.
The Colfords purchased 5 acres of property from Adamy in 2013 for $25,000. When Adamy sold the property to the Colfords, the property was not subject to any restrictive covenants. Later, Adamy placed restrictions on the property that
he and the Colfords negotiated. These new restrictions on the Colford Property were different from those in place on the Adamy subdivision. He testified that he never intended to make the Colford Property subject to the same restrictive covenants that were in place on the Adamy subdivision. The Colfords were aware that there were restrictive covenants in place on the Adamy subdivision, but did not know their details.
After purchasing the property, the Colfords constructed a large metal building, approximately 30 by 50 feet, which the plaintiffs alleged was in violation of the Adamy subdivision covenants. The Colfords used the building to store building material to build a house on the property.
III. ASSIGNMENT OF ERROR
The Walters claim that the district court erred as a matter of law in granting each of the two motions for summary judgment.
IV. STANDARD OF REVIEW
An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.1 In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted and gives such party the benefit of
all reasonable inferences deducible from the evidence.2
Where the facts are undisputed or are such that reasonable minds can draw but one conclusion therefrom, it is
the duty of the trial court to decide the question as a matter of law rather than submit it to the jury for determination.3 A movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to a judgment if the evidence were uncontroverted at trial.4 At that point, the burden of producing evidence shifts to the party opposing the motion, who must present evidence showing the existence of a material fact that prevents summary judgment as a matter of law.5
V. ANALYSIS
1. THE PLAINTIFFS' CLAIM FOR INJUNCTIVE RELIEF: ADAMY SUBDIVISION RESTRICTIVE COVENANTS DO NOT EXPRESSLY APPLY TO THE COLFORD PROPERTY
There is no evidence that the Colford Property is expressly subject to the Adamy subdivision restrictive covenants. The Colford Property is not a part of the Adamy subdivision. The Adamy subdivision restrictive covenants expressly apply only to the lots within the subdivision. The plaintiffs may prevail only if they can establish that the Colford Property is restricted through the doctrine of implied reciprocal negative servitudes.
2. THE PLAINTIFFS' CLAIM FOR INJUNCTIVE RELIEF: APPLICATION OF DOCTRINE OF IMPLIED RECIPROCAL NEGATIVE SERVITUDES TO THE COLFORD PROPERTY
The plaintiffs argue that the Colford Property is subject to the Adamy subdivision restrictions through the doctrine of implied reciprocal negative servitudes. The district court concluded that there was no material issue of fact as
to the application of the doctrine because "[a]lthough all of the land at issue was conveyed by a common grantor, there is no showing that the grantor had a common plan of development for the Colford land or had any intent to restrict the use of it."
(a) Overview of Doctrine
Restrictive covenants on property use are often utilized in developments to maintain the character of the neighborhood in accord with the development plan and to protect property values.6 When restrictive covenants are created for the mutual benefit of all of the properties within a development, they may be enforced by each of the property owners against the other.7 While at common law, restrictive covenants on land use were categorized as either "real covenants" or "equitable servitudes" depending on whether they were enforced in law or equity, the distinction between these two has blurred over time.8
The modern trend, as represented...
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