S-15-1108 The Estates at Prairie Ridge Homeowners Association v. Duane Korth and Kathryn Korth, Appellants
Sarpy County, Judge Thompson
Attorneys: John Walker (Lamson, Dugan, & Murray) — Larry Forman (Hillman, Forman, Childers, & McCormack)
Civil: Breach of Contract
Proceedings Below: After a bench trial, the trial court issued an Order in favor of Estates at Prairie Ridge, Appellee and against Appellants, finding Appellants in violation of various restrictive covenants, ordering Appellants to submit a substitute paint color to Appellee, and ordering Appellants to repaint their home within thirty days after the receipt and approval of the substitute color by Appellee.
Issues: 1. Whether the district court erred in its determination that the Declaration of Covenants, Easements and Restrictions (Declaration) gave Appellee the ability to control the paint color of Prairie Ridge residences; 2. Whether the district court erred in its determination that while color is not mentioned anywhere in the restrictive covenants contained in the Declaration, Appellee nevertheless has control over the exterior paint color of Prairie Ridge homes. 3. Whether the district court erred in its determination that Appellants are in violation of four sections in the Declaration; 4. Whether the district court erred in its construction of Article I, Section 2(a) of the Declaration when it found the term “or other external improvement” included paint color; 5. Whether the district court erred in its construction of Article I, Section 15 of the Declaration when it found painting was a “trade or activity;” 6. Whether the district court erred in its construction of Article I, Section 16 of the Declaration by finding paint color was “storage of any property or thing” and “material or substance kept upon the land,” which could be a nuisance; 7. Whether the district court erred by failing to find that Article I, Section 2(a); Article I, Section 15; and Article I, Section 16 of the Declaration are ambiguous, specifically, the terms “or other external improvement,” “nuisance or annoyance,” and “obnoxious to the eye;” 8. Whether the district court erred in failing to construe the covenants a manner which maximizes Appellants’ unrestricted use of their land; 9. Whether the district court erred in its determination in its final Order that the Declaration of Covenants provided the original Declarant, Appellee’s predecessor in interest with respect to the power to enforce the covenants, “absolute and sole discretion concerning the use and makeup of the land;” 10. Whether the district court erred in ruling that genuine issues of material fact existed as to whether the painting of a residence was an “external improvement” or a “repair” and whether exterior paint color may be a “nuisance” or “annoyance” to the neighborhood or surrounding lots.