*1 computed judgment would be a equitable relief efficient and contract, is, York should awarded April 21 under $109,397.67, percent per interest at 12 plus judgment for contract, annum, provided in the rate the interest 1,1990, and the costs of this action. September directions. and remanded with

Reversed Larry Boyles Olga Gary Boyles, appellants, R. and J. J. Hausmann, wife, al., Hausmann S. R e ee n husband et pellees. ap

509 N.W.2d 676 21, 1993. December No. A-92-204. Filed Mock, Johnson, appellants. & NileK. Johnson Gregory appellees. P. Drew Connolly, Wright, Irwin, Judges. Judge.

Irwin, in Pioneer Hills Olga Boyles, landowners Larry R. and J. declaratory judgment Subdivision, brought seeking a suit defendants, landowners in the regarding whether the subdivision, containing restrictive could amend an *2 to include a so as pertaining to the subdivision covenants court found The district provision for each lot. setback Boyleses’ dismissed the generally the defendants and appeal. For Boyleses subsequently perfected petition. The below, judgment and remand recited we reverse the the reasons with directions. the cause OF REVIEW

SCOPE declaratory judgment under An action for 1989, 25-21,149 seq. (Reissue et provisions of Neb. Rev. Stat. § generis; whether such Supp. Supp. 1993) Cum. & is sui equity at law or one in is to be action is to be treated as one Walkup, Drew v. dispute. determined the nature of the bar, 946, Neb. N.W.2d 187 In the case at only declaratory judgment rights of their under seek declaratory appeal from a agreement. In an law, appellate court has an judgment raising issues of obligation independent of the conclusion to reach a conclusion Ag. Racing court. State Bd. v. State reached the trial Comm., (1992); State ex rel. Neb. 478 N.W.2d Co., 262, 445 N.W.2d Spire Bell Tel. v. Northwestern 284 (1989).

FACTS The platted. was In the Pioneer Hills Subdivision Additionally, subject pipeline to a easement. subdivision was into, an the subdivision entered original landowners of which, covenants agreement adopting specific L, were to according to covenant continue until

run with the land and which time years, unless an instrument periods of five

successive owners of said land shall signed by majority of the then County have been in the office Clerk recorded Nebraska, Washington County, in whole or in Washington was recorded in the clerk’s

office. separate then current landowners entered into a repair share costs for maintenance and of a agreement provides for the subdivision. hereto, heirs, it “shall be their assigns and successors in title of interest.” This of the then current landowners and was Washington County recorded in the office. In clerk’s Boyleses purchased their lot and were aware of both of these agreements. recorded April after the time

the restrictive covenant the then current changes landowners amended the to reflect E, H, I, J, K, changes covenants and L. The E through H K topics all concerned which were discussed agreement. changes could be characterized as *3 covenants, existing clarifications resulting in less covenants. The provided: to covenant L “Change particular 1983 to 1988.” This amendment in covenant L to read:

These . covenants . . shall run with the land and January continue until they periods extended for successive of five unless an instrument a then owners of said land shall have been recorded in the County Washington office of the Clerk County, Nebraska, agreeing in part. same whole or in agreement signed by Boyleses. was January principal 5-year 2 agreement from the was rewritten. The new essentially identical to the agreement, except 1983 covenant for the addition of an entire regarding regulations. section water use This new section relates signed water which the landowners provided 1976. The 1990 covenants, regulations, restrictions [t]hese until run with the land and continue and conditions shall 1, 1995, time after which periods of five extended for successive signed by majority of the years, unless an instrument land shall have been recoded then owners said [sic] change same the office of the Clerk... in whole or in lots, 12 the 18 signed by owners of agreement was

This 1990 agreement was recorded including Larry Boyles. The February 1990. August attempted of the landowners following amend the to include the “

under covenant C: 1. NO RESIDENTIAL STRUCTURE OR BE PLACED WITHIN 120’ OF OUTBUILDING SHALL existing provided: PIONEER ROAD.” The C HILLS covenant any building “No residential structure shall be erected on lot original plotted which is smaller in area than the number [sic] lot on which it is erected.” alleged appeal assert on amendment, establishing of 120 feet from setback road, covenant, creates a new not an amendment to an covenant,

existing and is therefore invalid.

ANALYSIS appeal upon The determination of this rests the construction agreements parties, law. between the which is a matter of Co., See Baker v. St. Paul Fire & Marine Ins. Boyleses urge adopt

N.W.2d this court to case surrounding jurisdictions law from which have refused to allow subject of landowners in a subdivision to restrictive impose covenants to create a new covenant or harsher Prop. Owners the subdivision. Lakeland Larson, (1984) 121 Ill. Ass’n v. 459 N.E.2d (holding grantee title without clear notice in that where a takes *4 of the lot the current restrictive covenants that may property, impose owners an assessment his majority may impose amend the covenants to not Bussmann, burden); Deusen 343 Mo. such a Van v. 1 (1938) (holding language that the authorizing

covenant did modification of not imposition authorize the of a Cf. restriction). harsher Zito v. Gerken, 79, 587 225 Ill. N.E.2d 1048

Despite assign the fact that the do not as error a misinterpretation agreement relating to when the current may agreement, effectuate a in the we cannot review the recognizing documents in this case without plain may appeal error. Plain error be found on when an trial, uncomplained error unasserted or plainly of at but evident record, prejudicially from the litigant’s affects a substantial right and, uncorrected, if miscarriage justice would cause a damage or integrity, reputation, judicial and fairness of the process. Feldman, Supermarkets Baker’s v. 243 Neb. (1993); N.W.2d 428 Naylor, Wichman v. 241 Neb. Fischer, (1992); N.W.2d 291 In re Estate 227 Neb. N.W.2d 860 (1988). determining rights Since we are of these parties on the basis of a interpretation, contractual the issue of whether the 1990 amendment was a harsher restriction or longer justiciable a new restriction is no issue between the parties and need addressed. This is true even context of an declaratory judgment. action for State v. Nebraska Assn. Employees, Pub. 477 N.W.2d (1991); Custer Loup Public Power Dist. v. River Public Dist., Power 162Neb. 300, 75 N.W.2d 619 (1956). Supreme Nebraska Court language has held that the

in a plain ordinary contract is to be accorded meaning its as average understood an or person. reasonable Baker’s Feldman, Supermarkets supra. A close review of the language 1973.covenant reveals that January 1,1983, covenants were to run with the land “until extended ... unless an instrument of the then owners of said land shall have been recorded . . . part.” incorporated into the 1983 except date was

January 1, try change any 1988. did not part of agreement during period despite the fact that a water use had been installed on the *5 property separate agreement in 1976. A was created for this purpose. through arguably From 1983 the second principal period, parties change the did to not the agreement. January 1990, agreement’s after the 1983 principal period parties changed agreement dealing system. to include a section with the water They changed language that agreement so the 1990 provided: covenants,

These regulations, restrictions and conditions shall run with the land and continue until 1, 1995, which time after automatically periods extended for successive of five years, by unless an instrument signed then owners of said land shall have been recoded [sic] office of Clerk... (Emphasis supplied.)

We interpret to mean that the 1990 covenants binding years, are for 5 they may which time by a majority of property supported by owners. This is cases jurisdictions. from other Roling, (Mo. App. Kauffman

1993), provided that the restrictive would be years for 25 “except as otherwise provided herein, after which time said covenants shall be periods twenty-five (25) successive unless signed by an instrument two-thirds then owners of the lots has (Emphasis been recorded . . .” omitted.) . After reviewing agreement, appellate entire the Missouri court held that there provision was no for amendment less than a parties unanimous vote of the prior to the Rice, expiration 25-year period. In Hill v. So. (Ala. 1987), provided the restrictions “ binding upon parties ‘shall be all persons claiming 1, 1980,

under them until Jan. at which time said covenants and restrictions shall be extended periods successive of ten (10) unless vote of majority agreed the then owners of the it lots is ...” said covenants

discontinue or eliminate plaintiff attempted that an to assert of the landowners made the restrictive covenants original covenant invalid because the in 1985 was automatically be 10-year period must required that it Supreme Court stated that extended. The Alabama “[w]hile binding upon all the restrictions were is clear that until it is claiming under them persons that a clear that the intent of the covenants was agree after that to remove the restrictions owners could not *6 Consequently, the court (Emphasis omitted.) date.” Id. at 384. could eliminate the majority of the then owners found that Howells, 505 v. 682 P.2d covenants in 1985. Johnson 1984), agreement provided: the (Colo. App. be are to run with the land and shall

“These covenants claiming binding persons all under them on all and twenty (20) years the date hereof after period for a of extended which time said covenants be period of 20 unless an instrument a successive signed by sixty percent property the of of then owners the recorded, in change has to said been part.” appellate meaning of the plain court held that twenty was that “the covenants will be they unless are sixty percent agree change property of the owners them omitted.) Id. (Emphasis record an to that effect.” instrument if had The court further stated that the owners intended time, any they at would had no allow amendments then have 20-year place. in period need to include reference to a the first See, Island, also, v. 2d Dauphin Kuppersmith, etc. 371 So. (Ala. could 1979) (holding 31 that amendments to covenants of the owners until the end effectuated lot 25-year following adoption covenants); period Lewis, (1972) (holding v. 615 White Ark. prior could that restrictive covenants not be amended B W expiration period); of the initial Perkins v. & Contractors, Inc., (La. 1983) (holding 439 So. though were valid even amendments to restrictive covenants expiration original period, were filed before because the original amendments were not effective until had expired).

Although jurisdictions case law from other holds that vote unanimous can effectuate landowners amendment during the covenants period, such is not the situation Roling, supra; before us. v. Johnson Kauffman Howells, supra. Here, mere the current attempted January during period, the principal in contravention of the terms of the agreement. They did authority not have the August plain it was error for the trial court to find favor of the defendants. The judgment of reversed, the district court is and the cause is remanded for an finding order to issue attempted amendment is invalid. Reversed and remanded with directions. Judge, concurring.

Wright, I majority’s concur in the attempted conclusion that the August amendment to the 1990was invalid. As the out, points 1990,2 in January years after 5-year period for the 1983 agreement provide was rewritten to that the covenants would run with the land and continue until 1995. to amend during *7 principal term was invalid.

I attempt also believe the to amend the covenant was invalid for another reason. When the purchased property, existing there was no setback of 120 feet from Pioneer Hills may not, Road. Landowners a subdivision vote, create new covenants which restrict the use land by minority held my opinion, any landowners. attempt place greater restrictions on the land use existing amendment of require covenants would the vote of all landowners in the is subdivision. It for this additional reason I that believe the

amend covenant was void.