A-15-0277, Jeffrey Lake Development, Incorporated, a Nebraska non-profit corporation; and Midway Wildlife & Recreation Club, a Nebraska non-profit corporation, et al., (Appellant) v. Central Nebraska Public Power and Irrigation District, a Nebraska public corporation (Appellee and Cross-Appellant)
Lincoln County, District Court Judge Richard L. Birch
Attorney for Appellant: Steen Windrum (Malcom, Nelsen & Windrum, LLC)
Attorney for Appellee and Cross-Appellant: David J. A. Bargen (Rembolt Ludtke LLP)
Civil Action: Contract interpretation
Action Taken by Trial Court: The trial court determined that paragraph 13 prohibited construction of residential cabins and related structures, including subterranean structures such as footings and sewage systems, below the stated elevations. The trial court further found that these elevations do not apply to boat docks and related structures. Additionally, the trial court interpreted the injunction we prescribed in Jeffrey VI to prohibit Central from enforcing elevation restrictions for repair and replacement of the structures at issue in Jeffrey VI, so long as the repair or replacement is of the same type of item in the same location. The trial court also held that the specific language of the elevation restriction in the lease concerning Jeffrey Lake required only that building “generally” complied with the elevation requirement – that is, slight deviations from the required elevation are permitted under that lease only. The remainder of Jeffrey and Midway’s request for relief was denied.
Assignments of Error on Appeal:
Jeffrey Lake Development, Inc., and Midway Wildlife & Recreation Club assign that the district court erred in (1) entering an order not sustained by sufficient evidence, (2) entering an order contrary to law, (3) failing to apply the terms and provisions of paragraphs 14, 15, and 16 of the leases between the parties the subject of this action, (4) finding that “Motivation in seeking to enforce legal rights under the leases is immaterial, and even if based on malice only applies to determining the credibility of the evidence,” (5) finding that the terms and conduct of the appellate opinion in Jeffrey VI, case number A-09-996 (2010) controls, either exclusively or primarily, going forward, the rights and liabilities of the parties in the application of the lease terms on the issues framed by the pleadings, that is, paragraphs 13, 14, 15, and 16, (6) finding “…the estoppel provisions of Jeffrey v. Central VI only applied to construction and Jeffrey Lake and Midway Lake upon which evidence was produced at the trial on April 14, 2009,” (7) finding that “…Central should be enjoined from denying, because of elevation or setback requirements, application for the repair or replacement of structures that are subject to the injunction in Jeffrey v. Central VI; provided that the repair or replacement must be of the same type of item in the same location,” (8) concluding that the Appellant argued that “…FERC is not interested in the enforcement of those lease provisions…,” (9) finding that “retaining walls” and “erosion control structures”, without other condition or without other qualification, categorically fit or are subsumed in the “…boat docks and related structures” category, (10) applying paragraph 20 of each lease in finding as an exception to the “related structures” to a residence, as having no prohibitory predicate for same in respect to any elevation requirement, (11) distinguishing between the Jeffrey lease and the Midway lease insofar as the application of the relevant terms simply by reason of the Midway lease failing to include the word “generally”, (12) finding the meaning and application of the word “generally” in the Jeffrey lease was and is circumscribed and restricted by the content of the opinion of the court of appeals in Jeffrey v. Central VI, (13) refusing to apply the course of dealing and course of conduct between the parties for the meaning and application of the word “generally,” (14) failing to quantify the term “generally” as same is found in and made part of paragraph 13 of the Jeffrey lease, (15) failing to find and conclude that residence cabins and related structures can be constructed on the lakes, with part or parts thereof below the elevations designated in each of the leases, on the basis of and subject to the content of paragraphs 14, 15, and 16 of such leases, irrespective of the application of paragraph 13 of such leases, (16) failing to find that the construction and installation of a “related structure” located below the designated elevation of each of the lakes, either in whole or in part, would be an allowed structure or improvement, at such location and such elevation, notwithstanding such part or portion of same being below the designated elevation in each lease, if, considering the totality of the structures and improvements constituting the “residence cabin and related structures”, all of such improvements and structures as a single unit are considered generally above the designated elevations, (17) failing to find that Central should be and is enjoined from denying improvement and structure applications which comply, explicitly and implicitly, with Permitting Procedures Attachment B, and (18) failing to award Appellants attorney fees.
On cross-appeal, Central assigns that the district court erred in (1) failing to find that Jeffrey and Midway failed to state a claim and that the district court lacked subject matter jurisdiction by operation of res judicata; (2) failing to find Jeffrey and Midway’s claims were barred by waiver; (3) applying Jeffrey VI’s injunction to extend to repair and replacement of the same type of items in the same locations; and (4) applying our definition of “generally” from Jeffrey VI in interpreting the elevation restriction at Jeffrey Lake.