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Nebraska Court of Appeals Advance Sheets

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SUMMER HAVEN LAKE ASSN. v. VLACH

Cite as 25 Neb. App. 384

Summer Haven Lake Association, Inc., a Nebraska

corporation, appellee and cross-appellant, 

v. Ronald G. Vlach, appellant and

cross-appellee, and Victory Lake

Marine, 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 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 conclusion 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 controlling, 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 shareholders 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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

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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 continue 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 authorizes the Game and Parks Commission to make special rules and regulations 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 organization 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 vessels 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 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.
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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 uniform 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 frivolous 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 litigation will be upheld in the absence of an abuse of discretion.

Appeal from the District Court for Dodge County: Geoffrey

C. Hall, Judge. Affirmed.

K.C. Engdahl for appellant.

Thomas B. Thomsen, of Sidner Law, for appellee Summer 

Haven Lake Association, Inc.

Inbody, Pirtle, and Riedmann, Judges.

Riedmann, Judge.

INTRODUCTION

Ronald G. Vlach appeals and Summer Haven Lake 

Association, Inc. (Summer Haven), cross-appeals the order of 
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Cite as 25 Neb. App. 384

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 purchasing 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 shareholder 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 shareholder 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 complaint, 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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Cite as 25 Neb. App. 384

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 shareholder 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 concluded 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 evidence 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 maximum length restrictions. The court therefore granted the 

equitable relief sought by Summer Haven and enjoined Vlach 

from further violating Summer Haven’s rules and regulations 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 thirdparty 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 conclusion 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 agreement 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 acknowledgment 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 personally to the terms of the agreement and the rules governing 

Summer Haven. See 780 L.L.C. v. DiPrima, 9 Neb. 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 representative 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 deposition 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 agreement 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 contract 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 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 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 shareholders. 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 corporate 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 summary 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 personal 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 corporation 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 shareholders 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 capacity 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; however, 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 equipment 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 vessels 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 waterskiing 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 administrative control over nonpublic waters of this state. § 015.01A1. 

Included in the rules for nonpublic lake associations are specific 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 entities 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 authority to enact and enforce their own rules and regulations, provided 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 regulations 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 agreement 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 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 vessels on any waters 

within its territorial limits and shall set forth therein the reasons 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 association. In addition, the Nebraska Administrative Code recognizes 

that lake associations, such as Summer Haven, have administrative 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 questions 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 acknowledged 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 limitation 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 remedy, 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 controverted fact necessary to entitle him or her to relief. Id. A mandatory 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 injunction 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 support 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 proceedings” 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 hearing 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 directors 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 authority and permitting commencement of the suit constituted a 

breach of trust and fiduciary obligations owed by the directors 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 supported 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 counterclaim, 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 asserting error). Consequently, we conclude that the district court 

did not err in dismissing Vlach’s counterclaim and thirdparty complaint.

Attorney Fees Award.

Finally, Vlach asserts that the district court erred in awarding 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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Cite as 25 Neb. App. 384

[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 recovery of attorney fees. SBC v. Cutler, 23 Neb. 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 section, 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 otherwise 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 allowing or disallowing attorney fees for frivolous or bad faith 

litigation will be upheld in the absence of an abuse of discretion. 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 numerous motions filed by Vlach as well as his attempt to institute 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 testified 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 counsel’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 attorney 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 matters 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 counterclaim 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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Cite as 25 Neb. App. 384

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 agreement and that therefore, he was subject to enforcement of 

Summer Haven’s rules. The evidence was sufficient to establish 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 discretion in the amount of attorney fees awarded to Summer Haven. 

As a result, we affirm the order of the district court.

Affirmed.