Latenser v. Intercessors of the Lamb, Inc.

553 N.W.2d 458, 250 Neb. 789, 1996 Neb. LEXIS 175
CourtNebraska Supreme Court
DecidedSeptember 27, 1996
DocketS-94-854
StatusPublished
Cited by44 cases

This text of 553 N.W.2d 458 (Latenser v. Intercessors of the Lamb, Inc.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Latenser v. Intercessors of the Lamb, Inc., 553 N.W.2d 458, 250 Neb. 789, 1996 Neb. LEXIS 175 (Neb. 1996).

Opinion

Gerrard, J.

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 *791 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 772 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 \llh 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 worshipers. 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.

*792 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; 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).

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.”

*793 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ostwald v. Beck
27 Neb. Ct. App. 763 (Nebraska Court of Appeals, 2019)
Walters v. Colford
297 Neb. 302 (Nebraska Supreme Court, 2017)
REGENCY HOMES ASS'N v. Schrier
759 N.W.2d 484 (Nebraska Supreme Court, 2009)
Pennfield Oil Co. v. Winstrom
752 N.W.2d 588 (Nebraska Supreme Court, 2008)
McClellan v. Board of Equalization
748 N.W.2d 66 (Nebraska Supreme Court, 2008)
Money v. Flowers
748 N.W.2d 49 (Nebraska Supreme Court, 2008)
Thomas v. State
685 N.W.2d 66 (Nebraska Supreme Court, 2004)
City of Omaha v. Kum & Go, L.L.C.
642 N.W.2d 154 (Nebraska Supreme Court, 2002)
Lake Arrowhead, Inc. v. Jolliffe
639 N.W.2d 905 (Nebraska Supreme Court, 2002)
Apland v. Northeast Community College
599 N.W.2d 233 (Nebraska Court of Appeals, 1999)
State v. Carter
586 N.W.2d 818 (Nebraska Supreme Court, 1998)
Carpenter v. Cullan
581 N.W.2d 72 (Nebraska Supreme Court, 1998)
Hoiengs v. County of Adams
574 N.W.2d 498 (Nebraska Supreme Court, 1998)
Talle v. Nebraska Department of Social Services
572 N.W.2d 790 (Nebraska Supreme Court, 1998)
Omega Chemical Co. v. United Seeds, Inc.
560 N.W.2d 820 (Nebraska Supreme Court, 1997)
Robertson v. SCHOOL DISTRICT NO. 17
560 N.W.2d 469 (Nebraska Supreme Court, 1997)
Sid Dillon Chevrolet-Oldsmobile-Pontiac, Inc. v. Sullivan
559 N.W.2d 740 (Nebraska Supreme Court, 1997)
Gutierrez v. Gutierrez
557 N.W.2d 44 (Nebraska Court of Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
553 N.W.2d 458, 250 Neb. 789, 1996 Neb. LEXIS 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/latenser-v-intercessors-of-the-lamb-inc-neb-1996.