Summer Haven Lake Assn. v. Vlach , 25 Neb. Ct. App. 384 ( 2017 )


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    SUMMER HAVEN LAKE ASSN. v. VLACH
    Cite as 
    25 Neb. Ct. App. 384
    Summer H aven Lake Association, Inc., a Nebraska
    corporation, appellee and cross-appellant,
    v. Ronald G. Vlach, appellant and
    cross-appellee, and Victory Lake
    M arine, Inc., a Nebraska
    corporation, appellee.
    ___ N.W.2d ___
    Filed December 26, 2017.   No. A-16-638.
    1.	 Injunction: Equity: Appeal and Error. An action for injunction sounds
    in equity. On appeal from an equity action, an appellate court tries fac-
    tual questions de novo on the record and, as to questions of both fact
    and law, is obligated to reach a conclusion independent of the conclu-
    sion reached by the trial court.
    2.	 Principal and Agent. If an agent intends to bind his principal, the agent
    must not only name the principal, but must express by some form of
    words that the writing is the act of the principal.
    3.	 Contracts. Extrinsic evidence is not permitted to explain the terms of a
    contract that is not ambiguous.
    4.	 Contracts: Intent. When a contract is unambiguous, the intentions of
    the parties must be determined from the contract itself.
    5.	 Contracts: Parties: Intent. The interpretation given to a contract by the
    parties themselves while engaged in the performance of it is one of the
    best indications of true intent and should be given great, if not control-
    ling, influence.
    6.	 Corporations. A corporation will be looked upon as a legal entity as a
    general rule, and until sufficient reason to the contrary appears.
    7.	 Corporations: Equity: Fraud. In equity, the corporate entity may be
    disregarded and held to be the mere alter ego of a shareholder or share-
    holders in various circumstances where necessary to prevent fraud or
    other injustice.
    8.	 Waters. The State Boat Act, Neb. Rev. Stat. §§ 37-1201 through
    37-12,110 (Reissue 2016), was enacted to promote safety for persons
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    and property in and connected with the use, operation, and equipment of
    vessels and to promote uniformity of laws relating thereto.
    9.	 ____. The State Boat Act applies to any waters within the territorial
    limits of Nebraska.
    10.	 ____. The provisions of the State Boat Act and of other applicable
    laws govern the operation, equipment, numbering, and all other matters
    relating thereto whenever any vessel shall be operated on the waters
    of Nebraska or when any activity regulated by the State Boat Act shall
    take place.
    11.	 Waters: Administrative Law: Ordinances. The State Boat Act permits
    the adoption of any ordinance or local law relating to operation and
    equipment of vessels so long as the provisions of which are and con-
    tinue to be identical to the provisions of the State Boat Act or rules or
    regulations issued thereunder.
    12.	 Waters: Administrative Law. The State Boat Act specifically autho-
    rizes the Game and Parks Commission to make special rules and regula-
    tions with reference to the operation of vessels on any specific water or
    waters within the territorial limits of Nebraska.
    13.	 ____: ____. Pursuant to authority granted by the State Boat Act, the
    Game and Parks Commission prescribed certain boating regulations
    contained in the Nebraska Administrative Code, including special rules
    and regulations for nonpublic lake associations governing operation
    of vessels on waters administratively controlled by nonpublic lake
    associations.
    14.	 Waters: Administrative Law: Words and Phrases. The Nebraska
    Administrative Code defines a nonpublic lake association as an organi-
    zation of lakeside residents with administrative control over nonpublic
    waters of this state.
    15.	 Contracts: Public Policy. Any contract which is clearly contrary to
    public policy is void.
    16.	 Contracts: Parties. A party cannot, by contractual agreement with
    another party, obtain the power to do something that state law forbids.
    17.	 Waters: Administrative Law. Any subdivision of this state may at
    any time make formal application to the Game and Parks Commission
    for special rules and regulations with reference to the operation of ves-
    sels on any waters within its territorial limits and shall set forth therein
    the reasons which make such special rules or regulations necessary
    or appropriate.
    18.	 Injunction. An injunction is an extraordinary remedy, and it ordi-
    narily should not be granted unless the right is clear, the damage is
    irreparable, and the remedy at law is inadequate to prevent a failure
    of justice.
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    SUMMER HAVEN LAKE ASSN. v. VLACH
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    19.	 Injunction: Proof. The party seeking an injunction must establish by
    a preponderance of the evidence every controverted fact necessary to
    entitle him or her to relief.
    20.	 Restrictive Covenants: Injunction. A mandatory injunction is an
    appropriate remedy for a breach of a restrictive covenant.
    21.	 Appeal and Error. To be considered by an appellate court, an alleged
    error must be both specifically assigned and specifically argued in the
    brief of the party asserting the error.
    22.	 Attorney Fees. Attorney fees and expenses may be recovered only
    where provided for by statute or when a recognized and accepted uni-
    form course of procedure has been to allow recovery of attorney fees.
    23.	 Attorney Fees: Costs. Customarily, attorney fees and costs are awarded
    only to prevailing parties, or assessed against those who file frivo-
    lous suits.
    24.	 ____: ____. Neb. Rev. Stat. § 25-824(2) (Reissue 2016) permits a court
    in any civil action to award as part of its judgment and in addition to any
    other costs otherwise assessed reasonable attorney fees and court costs
    against any attorney or party who has brought or defended a civil action
    that alleges a claim or defense which a court determines is frivolous or
    made in bad faith.
    25.	 Actions: Attorney Fees: Words and Phrases. The term “frivolous”
    connotes an improper motive or legal position so wholly without merit
    as to be ridiculous.
    26.	 Attorney Fees: Appeal and Error. On appeal, a trial court’s decision
    allowing or disallowing attorney fees for frivolous or bad faith litiga-
    tion will be upheld in the absence of an abuse of discretion.
    Appeal from the District Court for Dodge County: Geoffrey
    C. H all, Judge. Affirmed.
    K.C. Engdahl for appellant.
    Thomas B. Thomsen, of Sidner Law, for appellee Summer
    Haven Lake Association, Inc.
    Inbody, Pirtle, and R iedmann, Judges.
    R iedmann, Judge.
    INTRODUCTION
    Ronald G. Vlach appeals and Summer Haven Lake
    Association, Inc. (Summer Haven), cross-appeals the order of
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    the Dodge County District Court which granted an injunction
    enjoining Vlach from further violations of Summer Haven’s
    rules and regulations and upheld a 120-day suspension of
    Vlach’s lake privileges. Finding no merit to the issues raised
    on appeal or cross-appeal, we affirm.
    BACKGROUND
    Vlach is the owner and sole shareholder of Victory Lake
    Marine, Inc. (Victory Lake). Summer Haven is a Nebraska
    corporation and is the owner of Summer Haven Lake and the
    real estate surrounding the lake. Persons interested in purchas-
    ing a cabin at Summer Haven Lake must commit to purchasing
    one share of Summer Haven common stock. Summer Haven’s
    bylaws require that each shareholder enter into a shareholder
    agreement with Summer Haven. Accordingly, in June 2006, a
    shareholder agreement was executed between Summer Haven
    and Victory Lake/Vlach. The body of the agreement stated
    that it was being entered into between Summer Haven as the
    “Association” and Victory Lake as the “Shareholder.” The
    signature page contained a line for Vlach to sign as share-
    holder and president of Victory Lake and a separate line for
    him to sign as shareholder only. The line reserved for the
    signature of the president of Victory Lake was left blank, and
    Vlach signed only the line marked “Shareholder.” The share-
    holder agreement also contains an acknowledgment wherein
    the shareholder acknowledges receiving a copy of Summer
    Haven’s rules and regulations and agrees to abide by them.
    Vlach again signed only the line marked for “Shareholder”
    and not the line designated for the signature of the president
    of Victory Lake.
    Summer Haven’s safety rules and regulations provide
    that all members and residents of Summer Haven Lake are
    responsible for ensuring that they and their guests follow the
    rules and the terms of the shareholder agreement. A violation
    of the rules is a ground for suspension of lake privileges for
    a period of up to 120 days. Relevant to this appeal, the rules
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    provide that the maximum length for inboard and outboard
    boats is 18 feet 6 inches and that pontoon boats are restricted
    to operation on the lake between the hours of 8 p.m. and
    10 a.m.
    In August 2012, safety violations were reported against
    Vlach for having a boat longer than the maximum length
    at his “shore station” and operating a pontoon boat before
    8 p.m. Vlach appealed the violations to Summer Haven’s
    board of directors, which voted to reject the appeal and
    impose a 120-day suspension of lake privileges. Vlach then
    appealed the decision to the shareholders, and the shareholders
    voted at a May 2013 meeting to uphold the board’s decision.
    Nevertheless, Vlach was observed operating a boat on the lake
    on at least three occasions in July 2013, and he ultimately
    admitted that he operated boats on the lake during the 120-day
    suspension period.
    Accordingly, Summer Haven commenced this action in
    August 2013, requesting a temporary and permanent injunction
    restraining Vlach’s use of the lake for a period of 120 days as
    a result of violating Summer Haven’s rules and regulations
    and enjoining him from further violations. Vlach and Victory
    Lake filed an answer, counterclaim, and third-party complaint
    joining the individual members of Summer Haven’s board of
    directors as third-party defendants. The relief requested in the
    counterclaim was limited to dismissal of the claims at Summer
    Haven’s cost and reimbursement of attorney fees and costs
    expended in defending the action. In their third-party com-
    plaint, Vlach and Victory Lake alleged that Summer Haven
    lacked the authority to institute legal proceedings against
    them, and because the directors knew or should have known
    they were exceeding their authority, their actions constitute
    a breach of trust and fiduciary obligations. Summer Haven
    filed a motion to dismiss the counterclaim and third-party
    complaint, and after concluding that the counterclaim and
    third-party complaint failed to state a claim, the district court
    granted the motion to dismiss.
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    Vlach and Victory Lake moved for summary judgment as to
    the allegations in the amended complaint, and thereafter, the
    parties agreed to bifurcate the legal issue of Summer Haven’s
    authority to enact and enforce its own rules and regulations
    from the factual issue of whether Vlach and/or Victory Lake
    violated the rules. The district court determined that the share-
    holder agreement was executed by Vlach personally and as
    authorized representative of Victory Lake, and as such, both
    entities were bound by its terms. In addition, the court con-
    cluded that the State Boat Act, see Neb. Rev. Stat. §§ 37-1201
    to 37-12,110 (Reissue 2016) (the Act), does not conflict with
    or govern the issues in the present case, and therefore, the
    shareholder agreement controls and is enforceable against the
    shareholders. The court deemed Summer Haven’s rules and
    regulations to be restrictive covenants, which Summer Haven
    is entitled to enforce along with their associated penalties.
    After holding a trial on the remaining factual issues, the
    district court incorporated its previous rulings on the legal
    issues into its order and concluded that the undisputed evi-
    dence established that Vlach violated Summer Haven’s rules
    and regulations by operating a pontoon boat outside of the
    allowed hours and operating a boat that exceeded the maxi-
    mum length restrictions. The court therefore granted the
    equitable relief sought by Summer Haven and enjoined Vlach
    from further violating Summer Haven’s rules and regula-
    tions and upheld the 120-day suspension of Vlach’s lake
    privileges. The district court ruled, however, that there was no
    evidence that Victory Lake violated the rules and regulations
    and dismissed all claims against it. The court subsequently
    granted Summer Haven’s motion for attorney fees in the
    amount of $5,000. Vlach timely appeals, and Summer Haven
    cross-appeals.
    ASSIGNMENTS OF ERROR
    Vlach assigns, restated and renumbered, that the trial court
    erred in (1) denying Vlach’s motion for summary judgment,
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    (2) determining that provisions of the Act did not control and
    govern, (3) finding that Vlach was bound by and had violated
    Summer Haven’s rules and regulations, (4) finding in favor
    of Summer Haven with regard to its claims and granting
    an injunction, (5) dismissing Vlach’s counterclaim and third-
    party complaint, and (6) awarding attorney fees in favor of
    Summer Haven.
    On cross-appeal, Summer Haven assigns that the district
    court erred in dismissing the action against Victory Lake and
    failing to award attorney fees in the amount of $16,600.
    STANDARD OF REVIEW
    [1] An action for injunction sounds in equity. On appeal
    from an equity action, an appellate court tries factual questions
    de novo on the record and, as to questions of both fact and law,
    is obligated to reach a conclusion independent of the conclu-
    sion reached by the trial court. ConAgra Foods v. Zimmerman,
    
    288 Neb. 81
    , 
    846 N.W.2d 223
    (2014).
    ANALYSIS
    Shareholder Agreement.
    We first address the claims with respect to the capacity in
    which the shareholder agreement was signed. The district court
    concluded that the shareholder agreement was executed by
    Vlach in his personal capacity and as representative of Victory
    Lake. Vlach argues that there was no evidence that he agreed
    to be personally bound by the agreement. No one contests
    the court’s determination that Vlach executed the agreement
    as representative of Victory Lake; thus, we do not address
    this issue.
    The issue before us with respect to the shareholder agree-
    ment in the present case is whether Vlach is personally bound
    to the obligations contained therein. We conclude that he is.
    The agreement is the same agreement signed by other
    shareholders, except for the name of the proposed shareholder
    and the lot number. There are two separate lines reserved
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    for the signature of the shareholder of Summer Haven. The
    top line is labeled “Shareholder” and is designated for the
    signature of Victory Lake by its president. The bottom line
    is labeled only as “Shareholder.” It is apparent that the name
    of Victory Lake and the word “President” were typed into the
    standard shareholder agreement separately, because they are
    typed using a different font. Vlach elected to sign only on the
    bottom line, which was designated for shareholder but left
    blank the space designated for the signature of the president
    of Victory Lake.
    [2] At the bottom of the shareholder agreement signature
    page appears an acknowledgment, wherein the shareholder
    of Summer Haven acknowledges having received a copy of
    Summer Haven’s rules and regulations and agrees to abide by
    them. Underneath the acknowledgment appears a signature
    block which is identical to the spaces for the shareholder’s
    signatures in the agreement. In other words, the acknowledg-
    ment also contains two lines designated for the signature(s)
    of the shareholder(s) of Summer Haven. Vlach again elected
    to sign only the bottom line reserved for the shareholder but
    not the top line reserved for the representative of Victory
    Lake. In so signing, Vlach agreed to bind himself person-
    ally to the terms of the agreement and the rules governing
    Summer Haven. See 780 L.L.C. v. DiPrima, 
    9 Neb. Ct. App. 333
    , 
    611 N.W.2d 637
    (2000) (explaining that if agent intends
    to bind his principal, agent must not only name principal,
    but must express by some form of words that writing is
    act of principal). Where, as here, two signature lines were
    available, one in which Vlach could have signed in a rep-
    resentative capacity, and another in which he could sign in
    his individual capacity, and he chose to sign the latter, he is
    bound individually.
    [3,4] Vlach argues that testimony contained in his depo-
    sition and affidavit offered into evidence at the summary
    judgment hearing establish that he did not intend to bind
    himself personally, but, rather, he only intended to enter into
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    the shareholder agreement as representative of Victory Lake.
    However, neither party contends that the shareholder agree-
    ment is ambiguous, and extrinsic evidence is not permitted
    to explain the terms of a contract that is not ambiguous. See
    Facilities Cost Mgmt. Group v. Otoe Cty. Sch. Dist., 
    291 Neb. 642
    , 
    868 N.W.2d 67
    (2015). When a contract is unambiguous,
    the intentions of the parties must be determined from the con-
    tract itself. 
    Id. Because no
    one contends that the shareholder
    agreement is ambiguous, nor do we find it to be ambiguous,
    we do not consider parol evidence such as Vlach’s deposition
    or affidavit to determine the meaning of the contract.
    [5] The Nebraska Supreme Court has stated that the inter-
    pretation given to a contract by the parties themselves while
    engaged in the performance of it is one of the best indications
    of true intent and should be given great, if not controlling,
    influence. See Linscott v. Shasteen, 
    288 Neb. 276
    , 
    847 N.W.2d 283
    (2014). Here, Vlach resided at Summer Haven Lake and
    served on Summer Haven’s board of directors. The bylaws
    specifically provide that the board is to be composed of share-
    holders. There is no indication that Vlach served on the board
    in his representative capacity as president of Victory Lake
    or that his residency there was in any way tied to his corpo-
    rate position.
    After reviewing the evidence, we find no error in the court’s
    conclusion that Vlach executed the shareholder agreement
    in his individual capacity. Accordingly, we find no merit to
    Vlach’s argument that evidence was lacking to support the
    district court’s decision that he personally bound himself to the
    terms and conditions of the shareholder agreement.
    Concluding that Vlach was personally bound under the
    shareholder agreement, the district court denied Vlach’s motion
    for summary judgment, finding that material issues of fact
    remained which could not be resolved by summary judgment.
    Vlach does not challenge this conclusion on appeal; rather,
    his argument is based on his claim that he was not personally
    bound under the shareholder agreement. Having rejected that
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    argument, we affirm the denial of Vlach’s motion for sum-
    mary judgment.
    On cross-appeal, Summer Haven contends that the district
    court erred in dismissing the claims against Victory Lake,
    because Victory Lake and Vlach were one and the same. In
    its amended complaint, Summer Haven alleged that Victory
    Lake was the alter ego of Vlach and that Vlach used Victory
    Lake “merely as an instrumentality in conducting his own per-
    sonal business.” Thus, Summer Haven asserts that the claims
    against the corporation should not have been dismissed. We
    do not agree.
    [6,7] Victory Lake is a Nebraska corporation, and a cor-
    poration will be looked upon as a legal entity as a general
    rule, and until sufficient reason to the contrary appears. See
    Medlock v. Medlock, 
    263 Neb. 666
    , 
    642 N.W.2d 113
    (2002).
    However, in equity, the corporate entity may be disregarded
    and held to be the mere alter ego of a shareholder or share-
    holders in various circumstances where necessary to prevent
    fraud or other injustice. 
    Id. Among the
    factors which are
    relevant in determining to disregard the corporate entity are
    diversion by the shareholder or shareholders of corporate
    funds or assets to their own or improper uses and the fact that
    the corporation is a mere facade for the personal dealings of
    the shareholder and that the operations of the corporation are
    carried on by the shareholder in disregard of the corporate
    entity. 
    Id. There was
    no evidence presented in the case at hand to
    establish that Victory Lake was a mere alter ego of Vlach.
    There was also no evidence presented that Vlach violated the
    rules and regulations violations while acting in his capac-
    ity as president of Victory Lake. Summer Haven’s assigned
    error as to the dismissal of the claims against Victory Lake
    is based solely upon its position that Victory Lake is the
    alter ego of Vlach. Having rejected this argument, we affirm
    the district court’s decision dismissing the claims against
    Victory Lake.
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    State Boat Act.
    Vlach next argues that Summer Haven lacked the authority
    to enact and enforce its own rules and regulations, because
    the Act controls and governs conduct on the lake. We agree
    that the Act controls and governs Summer Haven Lake; how-
    ever, we conclude that Summer Haven has the authority to
    enact and enforce its own administrative rules and regulations
    provided they do not conflict with the Act or provisions of
    the Nebraska Administrative Code enacted by the Game and
    Parks Commission.
    [8,9] The Act was enacted to promote safety for persons and
    property in and connected with the use, operation, and equip-
    ment of vessels and to promote uniformity of laws relating
    thereto. § 37-1201. The Act applies to any waters within the
    territorial limits of Nebraska. § 37-1206.
    [10,11] The provisions of the Act and of other applicable
    laws govern the operation, equipment, numbering, and all other
    matters relating thereto whenever any vessel shall be operated
    on the waters of Nebraska or when any activity regulated by
    the Act shall take place thereon. § 37-1264. The Act permits
    the adoption of any ordinance or local law relating to operation
    and equipment of vessels so long as the provisions of which
    are and continue to be identical to the provisions of the Act or
    rules or regulations issued thereunder. § 37-1264.
    [12-14] In addition to this restriction, the Act specifically
    authorizes the Game and Parks Commission to make special
    rules and regulations with reference to the operation of ves-
    sels on any specific water or waters within the territorial
    limits of Nebraska. See § 37-1266. Pursuant to this authority,
    the Game and Parks Commission prescribed certain boating
    regulations contained in title 163, chapter 3, of the Nebraska
    Administrative Code. Among these regulations are special
    rules and regulations for nonpublic lake associations. See 163
    Neb. Admin. Code, ch. 3, § 015 (2006). These special rules
    and regulations govern operation of vessels, including water-
    skiing and other related activities, on waters administratively
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    controlled by nonpublic lake associations. 163 Neb. Admin.
    Code, ch. 3, § 015.01 (2006). A nonpublic lake association is
    defined as an organization of lakeside residents with adminis-
    trative control over nonpublic waters of this state. § 015.01A1.
    Included in the rules for nonpublic lake associations are spe-
    cific rules prescribed for Summer Haven Lake. See 163 Neb.
    Admin. Code, ch. 3, § 015.020 (2006). There are separate rules
    which govern operation of vessels on waters administratively
    controlled by subdivisions of this state. See 163 Neb. Admin.
    Code, ch. 3, § 016 (2004).
    [15,16] Stated another way, the Act grants the Game and
    Parks Commission the authority to enact special rules and
    regulations governing boating. Pursuant to this authority, the
    Game and Parks Commission prescribed rules governing enti-
    ties such as Summer Haven Lake, which it recognized are
    administratively controlled by their lakeside residents. In other
    words, the Game and Parks Commission recognizes that the
    shareholders of Summer Haven have administrative control
    over their lake. Therefore, the shareholders have the author-
    ity to enact and enforce their own rules and regulations, pro-
    vided the rules do not conflict with the terms of the Act or
    the Nebraska Administrative Code. And because neither the
    Act nor the Game and Parks Commission’s rules and regula-
    tions addresses hours of operation for pontoon boats or boat
    size, Summer Haven’s rules and regulations do not conflict.
    Therefore, Summer Haven is not prohibited from requiring that
    its shareholders abide by additional rules and regulations so
    long as the rules and regulations do not violate public policy
    or conflict with state law. See, Devney v. Devney, 
    295 Neb. 15
    ,
    
    886 N.W.2d 61
    (2016) (any contract which is clearly contrary
    to public policy is void); Rath v. City of Sutton, 
    267 Neb. 265
    ,
    
    673 N.W.2d 869
    (2004) (party cannot, by contractual agree-
    ment with another party, obtain power to do something that
    state law forbids).
    Vlach argues that not only may Summer Haven’s rules and
    regulations not conflict with the Act, they must be identical
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    to the provisions of the Act. We agree that the Act requires
    that any ordinance or local law adopted under the Act be
    identical to the provisions of the Act or rules or regulations
    issued thereunder. See § 37-1264. However, Summer Haven’s
    rules are not ordinances or local laws, and they therefore do
    not fall under this requirement.
    [17] Vlach also argues that in order to enact its own rules,
    Summer Haven was first required to obtain permission from
    the Game and Parks Commission. But the Act requires only
    such permission from subdivisions of the state. Any subdivi-
    sion of this state may at any time make formal application to
    the Game and Parks Commission for special rules and regula-
    tions with reference to the operation of vessels on any waters
    within its territorial limits and shall set forth therein the rea-
    sons which make such special rules or regulations necessary or
    appropriate. § 37-1265. Under the boating regulations of the
    Nebraska Administrative Code, however, Summer Haven is
    not a subdivision of the state but is a nonpublic lake associa-
    tion. In addition, the Nebraska Administrative Code recognizes
    that lake associations, such as Summer Haven, have adminis-
    trative control over their own waters. As such, Summer Haven
    was not required to obtain permission before enacting its own
    rules. We therefore find that Summer Haven has the authority
    to enact and enforce its own administrative rules governing
    conduct on its lake.
    Rules Violations.
    Vlach contends that the district court erred in determining
    that he violated Summer Haven’s rules and regulations. And
    he claims that because evidence of any rules violations was
    lacking, the extraordinary remedy of issuing an injunction was
    erroneous. We find no merit to these arguments.
    In an equity action, an appellate court tries factual ques-
    tions de novo on the record and, as to questions of both fact
    and law, is obligated to reach a conclusion independent of
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    the conclusion reached by the trial court. ConAgra Foods v.
    Zimmerman, 
    288 Neb. 81
    , 
    846 N.W.2d 223
    (2014).
    In his deposition, Vlach admitted that on or around August
    6, 2012, he operated a pontoon boat on Summer Haven Lake
    before 8 p.m. In addition, the president of the Summer Haven
    board of directors at the time of the violations testified that
    at a board of directors’ meeting on August 6, Vlach acknowl-
    edged that he committed the violations he was charged with
    committing—operating a pontoon boat before 8 p.m. and
    having a boat that exceeded the maximum size limitation at
    his shore station. Moreover, meeting minutes from a board
    of directors’ meeting held September 23 indicate that Vlach
    self-reported the violation of hours of operating a pontoon
    boat. Accordingly, we hold that the evidence was sufficient
    to conclude that Vlach committed the violations with which
    he was charged. Although we note that the court’s order of
    April 22, 2016, states that “Vlach operated a motor boat on
    the lake which exceeded the length restrictions of the Rules
    and Regulations,” it is clear from the record that the charged
    violation was for having a boat that exceeded the size limita-
    tion in Vlach’s shore station. We find no prejudicial error in
    the court’s statement because either scenario is a violation of
    Summer Haven’s rules.
    [18-20] The question then becomes whether an injunction
    was the proper remedy. An injunction is an extraordinary rem-
    edy, and it ordinarily should not be granted unless the right
    is clear, the damage is irreparable, and the remedy at law is
    inadequate to prevent a failure of justice. ConAgra Foods
    v. 
    Zimmerman, supra
    . The party seeking an injunction must
    establish by a preponderance of the evidence every contro-
    verted fact necessary to entitle him or her to relief. 
    Id. A man-
    datory injunction is an appropriate remedy for a breach of a
    restrictive covenant. Beaver Lake Assn. v. Sorensen, 
    231 Neb. 75
    , 
    434 N.W.2d 703
    (1989).
    Vlach argues that the extraordinary remedy of an injunc-
    tion was not warranted by the facts of the case because the
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    record does not support a finding that he was personally
    bound by Summer Haven’s rules or that he violated the rules.
    Having rejected those arguments, we conclude that entering an
    injunction enjoining Vlach from further violations of Summer
    Haven’s rules was not in error. Not only did the evidence sup-
    port a finding that Vlach violated the rules in August 2012,
    but the undisputed evidence establishes that he continued to
    operate a boat during the 120-day suspension period imposed
    by Summer Haven’s board of directors. And when initially
    confronted with his violations, Vlach’s defense was his belief
    that Summer Haven lacked the authority to enact and enforce
    its rules. Thus, Summer Haven was left with little choice other
    than legal proceedings to force Vlach’s compliance with its
    rules. Accordingly, we conclude that the district court did not
    err in granting Summer Haven’s requested relief in the form of
    an injunction.
    Vlach’s Counterclaim and
    Third-Party Complaint.
    Vlach asserts that the district court erred in dismissing his
    counterclaim and third-party complaint. We disagree.
    We first observe that Vlach notes the “irregular proceed-
    ings” in which the motion to dismiss was granted. Brief for
    appellant at 45. The district court initially denied the motion
    to dismiss from the bench and in a subsequent written order
    dated February 18, 2015. Thereafter, the court held a hear-
    ing on a pending motion for summary judgment, and in its
    order denying summary judgment dated July 31, 2015, the
    court reversed its previous decision and granted Summer
    Haven’s motion to dismiss the counterclaim and third-party
    complaint, ruling that the complaint failed to state a claim
    for relief. Although Vlach does not specifically challenge the
    court’s authority to reverse its ruling on its own motion, we
    recognize that the court does have the power to do so. See,
    Fitzgerald v. Fitzgerald, 
    286 Neb. 96
    , 
    835 N.W.2d 44
    (2013)
    (in civil cases, court of general jurisdiction has inherent
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    power to vacate or modify its own judgment at any time
    during term in which court issued it); Frerichs v. Nebraska
    Harvestore Sys., 
    226 Neb. 220
    , 
    410 N.W.2d 487
    (1987) (no
    abuse of discretion in trial court acting sua sponte to correct
    earlier order which court determined was conclusively shown
    to be incorrect).
    [21] The question then becomes whether the district court
    erred in granting the motion to dismiss. Vlach argues that
    he should have been permitted to join the individual direc-
    tors as third-party defendants because they knew or should
    have known that the institution of legal proceedings against
    Vlach and Victory Lake exceeded their corporate author-
    ity and permitting commencement of the suit constituted a
    breach of trust and fiduciary obligations owed by the direc-
    tors to the shareholders. As we determined above, however,
    the decision to grant Summer Haven’s request for injunction
    and enjoin Vlach from further violations of Summer Haven’s
    rules as well as upholding the 120-day suspension is sup-
    ported by the evidence. We therefore reject Vlach’s claim
    that the directors breached the duty owed to the shareholders
    by commencing the present action. We note that Vlach does
    not specifically argue it was error to dismiss his counter-
    claim, and we therefore do not address that issue. See Mock
    v. Neumeister, 
    296 Neb. 376
    , 
    892 N.W.2d 569
    (2017) (to be
    considered by appellate court, error must be both specifically
    assigned and specifically argued in brief of party assert-
    ing error). Consequently, we conclude that the district court
    did not err in dismissing Vlach’s counterclaim and third-
    party complaint.
    Attorney Fees Award.
    Finally, Vlach asserts that the district court erred in award-
    ing attorney fees to Summer Haven, and on cross-appeal,
    Summer Haven contends that the fees award should have been
    $16,600 rather than $5,000. We find no abuse of discretion in
    the fees awarded.
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    [22,23] Attorney fees and expenses may be recovered only
    where provided for by statute or when a recognized and
    accepted uniform course of procedure has been to allow recov-
    ery of attorney fees. SBC v. Cutler, 
    23 Neb. Ct. App. 939
    , 
    879 N.W.2d 45
    (2016). Customarily, attorney fees and costs are
    awarded only to prevailing parties, or assessed against those
    who file frivolous suits. 
    Id. [24] Here,
    Summer Haven based its request for attorney
    fees on Neb. Rev. Stat. § 25-824(2) (Reissue 2016), which
    provides:
    Except as provided in subsections (5) and (6) of this sec-
    tion, in any civil action commenced or appealed in any
    court of record in this state, the court shall award as part
    of its judgment and in addition to any other costs other-
    wise assessed reasonable attorney’s fees and court costs
    against any attorney or party who has brought or defended
    a civil action that alleges a claim or defense which a
    court determines is frivolous or made in bad faith.
    Summer Haven’s motion for attorney fees specifically
    alleged that an attorney fees award was appropriate because
    Vlach’s defense was frivolous and because his refusal to
    admit certain matters in his deposition and discovery responses
    necessitated proof of such matters.
    [25,26] The term “frivolous” connotes an improper motive
    or legal position so wholly without merit as to be ridiculous.
    SBC v. 
    Cutler, supra
    . On appeal, a trial court’s decision allow-
    ing or disallowing attorney fees for frivolous or bad faith
    litigation will be upheld in the absence of an abuse of discre-
    tion. 
    Id. At the
    hearing on the request for attorney fees, Summer
    Haven’s counsel testified that although he did not believe
    Vlach’s defense regarding the Act was frivolous, the numer-
    ous motions filed by Vlach as well as his attempt to insti-
    tute a counterclaim and third-party complaint were frivolous.
    Counsel’s position was therefore that Vlach should be required
    to reimburse Summer Haven for time spent and fees incurred
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    for the matters that were frivolous in nature. Counsel then testi-
    fied that he spent 56.4 hours on frivolous matters and that the
    rate charged to Summer Haven was $200 per hour. Counsel
    acknowledged, however, that he entered into an agreement
    with Summer Haven to represent it in this matter for a total
    sum of $5,000.
    On appeal, Vlach argues that his defense to Summer Haven’s
    action was not frivolous. And despite Summer Haven’s coun-
    sel’s concession at the attorney fees hearing, on appeal, Summer
    Haven asserts that not only was the defense frivolous, but a
    fees award is appropriate because of the vexatious manner in
    which the case was defended.
    Based on the record before us, we cannot find that the attor-
    ney fees award constitutes an abuse of discretion. Summer
    Haven’s counsel admitted that Vlach’s defense based on the
    Act was not frivolous; thus, attorney fees on those grounds
    would be unwarranted. Summer Haven’s counsel testified that
    he expended time valued at approximately $11,280 on mat-
    ters he considered frivolous and unrelated to the allegations in
    the complaint requesting an injunction for Vlach’s violations
    of Summer Haven’s rules and regulations. These included
    responding to multiple motions to dismiss and the counter-
    claim and third-party complaint. Despite the total sum to
    which counsel testified, the court elected to order the payment
    of only $5,000. The court did not set forth the basis upon
    which it calculated this amount. Although the award is equal
    to the amount of fees agreed upon by Summer Haven and its
    counsel, it would be speculation on our part to conclude that
    the court found it was limited by that agreement. Based upon
    the evidence presented and the concession that Vlach’s defense
    was in part not frivolous, we find no abuse of discretion in the
    award of $5,000 for attorney fees.
    CONCLUSION
    We conclude that Summer Haven has the authority to enact
    its own rules and regulations governing conduct on Summer
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    Haven Lake provided that such rules do not conflict with the
    Act or regulations issued thereunder. We also conclude that
    Vlach personally bound himself under the shareholder agree-
    ment and that therefore, he was subject to enforcement of
    Summer Haven’s rules. The evidence was sufficient to estab-
    lish that he violated those rules and that an injunction was an
    appropriate remedy. Because the evidence does not support
    a finding that Vlach violated the rules and regulations in his
    capacity as president of Victory Lake, the claims against it
    were properly dismissed. Finally, we find no abuse of discre-
    tion in the amount of attorney fees awarded to Summer Haven.
    As a result, we affirm the order of the district court.
    A ffirmed.