Hillsborough Homeowners Assn. v. Karnish

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
HILLSBOROUGH HOMEOWNERS ASSN. v. KARNISH
Cite as 33 Neb. App. 228
Hillsborough Homeowners Association, appellant,
v. Paul Karnish and Connie Karnish, appellees.
___ N.W.3d ___
Filed October 8, 2024. 	No. A-23-836.
1. Standing: Jurisdiction: Parties. Standing is a jurisdictional component
of a party’s case, because only a party who has standing may invoke the
jurisdiction of a court; determination of a jurisdictional issue which does
not involve a factual dispute presents a question of law.
2. Actions: Parties: Jurisdiction: Standing. The question of whether a
party who commences an action has standing and is therefore the real
party in interest is jurisdictional, and because the requirement of stand-
ing is fundamental to a court’s exercise of jurisdiction, either a litigant
or a court can raise the question of standing at any time.
3. Actions: Parties: Standing. The purpose of an inquiry as to standing is
to determine whether a party has a legally protectable interest or right in
the controversy that would benefit by the relief to be granted.
4. Standing: Jurisdiction. Standing relates to a court’s power, that is,
jurisdiction, to address the issues presented and serves to identify those
disputes which are appropriately resolved through the judicial process.
5. Standing: Jurisdiction: Parties. Standing is a jurisdictional component
of a party’s case because only a party who has standing may invoke the
jurisdiction of a court.
6. Standing: Claims: Parties. In order to have standing, a litigant must
assert the litigant’s own legal rights and interests and cannot rest his or
her claim on the legal rights or interests of third parties.
7. ____: ____: ____. To have standing, the litigant must have some legal
or equitable right, title, or interest in the subject of the controversy.
Appeal from the District Court for Douglas County: Leigh
Ann Retelsdorf, Judge. Appeal dismissed.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:29 AM CDT

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
HILLSBOROUGH HOMEOWNERS ASSN. v. KARNISH
Cite as 33 Neb. App. 228
Aaron F. Smeall and Timothy J. Buckley, of Smith, Pauley,
Slusky & Rogers, L.L.P., for appellant.
Thomas J. Anderson, P.C., L.L.O., for appellees.
Pirtle, Chief Judge, and Arterburn and Welch, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Hillsborough 	Homeowners Association 	(the Association)
filed a complaint for injunctive and declaratory relief against
Paul Karnish and Connie Karnish, seeking to enjoin them
from operating a daycare in their home. The district court for
Douglas County entered judgment in favor of the Karnishes,
concluding that the Association had waived enforcement of the
covenant on which it relied. We conclude that the Association
did not have standing to bring an action against the Karnishes
to enforce the covenants. Therefore, the Association’s appeal is
dismissed for lack of jurisdiction.
BACKGROUND
The Karnishes own a lot with a residence built on it located
in the Hillsborough subdivision in northwest Omaha, Nebraska.
The lot is subject to the “Declaration of Covenants, Conditions,
Restrictions and Easements of Hillsborough” (Declaration of
Covenants). The Association is responsible for ensuring that
all property owners in the subdivision comply with the cov-
enants. By virtue of the Karnishes’ ownership of real property
within the subdivision, they are members of the Association
and subject to the conditions and restrictions contained in the
Declaration of Covenants.
The covenant at issue in this case provides in part: “No
business activities of any kind whatsoever shall be conducted
on any lot.” The Karnishes acknowledge they were aware of
the covenant prohibiting business activity being conducted on
their lot at the time of their purchase in 2013. They have oper-
ated an in-home licensed daycare in their home continuously
since 2013.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
HILLSBOROUGH HOMEOWNERS ASSN. v. KARNISH
Cite as 33 Neb. App. 228
In September 2020, the Association filed a complaint against
the Karnishes, seeking to enforce the covenant at issue and ask-
ing the court to order a permanent injunction that would enjoin
them from operating the daycare business. The Karnishes filed
an answer and affirmative defenses, including waiver of the
Association’s right to enforce the covenant at issue.
Trial was held in May 2021. The evidence presented showed
that on June 15, 2013, Darcy Smith, a Hillsborough home-
owner who lived next door to the Karnishes, sent an email to
Darren Will, the president of the board of directors (Board) for
the Association, stating that her new neighbors, the Karnishes,
were planning on starting a daycare business in their home.
She inquired in the email if that would be a violation of the
covenants. That same day, Will responded to Smith’s email,
stating she could tell the Karnishes that their daycare had been
reported to the Board and that action would be taken against
them if they were to start a home daycare.
On June 18, 2013, Smith sent another email to Will, stat-
ing that she talked to the Karnishes again about the daycare
and that they were planning to start operating the daycare
that week.
On June 19, 2013, Will responded to Smith’s second email,
stating he would address the issue with the Karnishes. That
same day, Will sent a letter to the Karnishes, on behalf of the
Association, stating the covenant that was allegedly being vio-
lated and requesting that they relocate their daycare “no later
than 15 days from the date of this letter.” The letter further
indicated that “[f]ailure to comply with this request [would]
result in future interaction through legal representation.” The
Karnishes continued to operate their daycare.
Smith emailed Will again on October 22, 2013, stating that
she and other neighbors still had concerns about the daycare
the Karnishes were operating in their home. Smith also listed
vehicles and license plate numbers she had observed coming
and going from the Karnishes’ home, as well as the times chil-
dren were dropped off and picked up during the day.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
HILLSBOROUGH HOMEOWNERS ASSN. v. KARNISH
Cite as 33 Neb. App. 228
On July 22, 2019, nearly 6 years later, Smith sent an email
addressed to “Hillsborough Association Committee Members,”
asking the Association to shut down the Karnishes’ daycare
business. Diane Briggs, who became the Board president in
2016, received the email.
Briggs testified that after receiving Smith’s July 2019 email,
she followed up with Smith, who told her that the daycare had
been operating since 2013 and that she had previously reported
it to the Association.
Briggs also spoke with Will, who told her that he had spo-
ken to the Karnishes about their daycare when he was the
Board president and that he understood the issue had been
“resolved,” i.e., that the daycare had been closed. She also
reviewed the Association records she had and did not find
any complaints about the daycare between October 2013 and
July 2019. Briggs stated there was no indication from the
Association’s perspective that the daycare continued to operate
after October 2013.
Briggs testified that the Board sent a letter to the Karnishes,
who responded, indicating that they wanted to have a meeting
with someone on the Board. At the meeting, the Karnishes
admitted they were operating a daycare in their home. Briggs
testified that prior to the Karnishes’ acknowledging the opera-
tion of the daycare, she did not have any personal knowledge
that the daycare was operating. Following the conversation
between Briggs and the Karnishes, the Karnishes did not cease
operating the daycare.
Because the Karnishes continued to operate their daycare,
in May 2020, the attorney for the Association sent a letter
notifying the Karnishes that the daycare was in violation of
the Declaration of Covenants and that if the violation contin-
ued, the Association would file legal action against them. The
Association’s attorney sent the same letter to the Karnishes
in June. Ultimately, the Board decided to move forward with
litigation and the present case was filed.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
HILLSBOROUGH HOMEOWNERS ASSN. v. KARNISH
Cite as 33 Neb. App. 228
At trial, Paul testified that he moved into his home in
Hillsborough in 2013 and started the daycare at that time. He
stated that he and his wife, Connie, have been operating the
daycare continuously since 2013.
He testified that he knew the covenants prohibited the
operation of a daycare on his property before he closed on
the purchase of his home. He also testified that before moving
into his home in 2013, he learned that other individuals in the
neighborhood had been running daycare businesses for years.
Paul presented evidence of other daycare businesses operating
in the neighborhood at the time of trial, as well as other types
of businesses.
Paul 	acknowledged 	that 	he 	received 	a 	letter 	from 	the
Association on June 19, 2013, notifying him that operating
a business was a violation of the Declaration of Covenants.
He testified that when he received the letter, he did not close
the daycare business because he knew of three other daycares
operating in the neighborhood. He did not talk to anyone from
the Association about the letter. He decided to wait and see if
any further action was taken by the Association. He received
no further communication from the Association between 2013
and 2019. No complaints were made, as far as he was aware.
He stated he had no evidence to suggest that the Association
knew the daycare continued to operate beyond June 19, 2013,
the date of the letter. However, he testified that between 2013
and 2019, he and Smith had arguments about the continued
operation of the daycare.
Following trial, the trial court entered an order finding that
the Association had waived its right to enforce the covenant at
issue and entered judgment in favor of the Karnishes.
ASSIGNMENTS OF ERROR
The Association assigns that the trial court erred in (1)
denying its request for injunctive relief and (2) admitting evi-
dence of other businesses that were operating out of residences
located in the Hillsborough neighborhood.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
HILLSBOROUGH HOMEOWNERS ASSN. v. KARNISH
Cite as 33 Neb. App. 228
STANDARD OF REVIEW
[1] Standing is a jurisdictional component of a party’s case,
because only a party who has standing may invoke the juris-
diction of a court; determination of a jurisdictional issue which
does not involve a factual dispute presents a question of law.
Zeiler v. Reifschneider, 315 Neb. 880, 1 N.W.3d 880 (2024).
ANALYSIS
The Association assigns the trial court erred in denying its
request for injunctive relief and in admitting evidence of other
businesses operating out of homes located in the Hillsborough
neighborhood. However, we begin our analysis with the juris-
dictional question of whether the Association had standing to
bring an action for injunctive relief against the Karnishes.
[2,3] The question of whether a party who commences an
action has standing and is therefore the real party in interest
is jurisdictional, and because the requirement of standing is
fundamental to a court’s exercise of jurisdiction, either a liti-
gant or a court can raise the question of standing at any time.
See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917
N.W.2d 435 (2018). The purpose of an inquiry as to standing
is to determine whether a party has a legally protectable inter-
est or right in the controversy that would benefit by the relief
to be granted. Strom v. City of Oakland, 255 Neb. 210, 583
N.W.2d 311 (1998).
[4,5] Standing relates to a court’s power, that is, jurisdiction,
to address the issues presented and serves to identify those
disputes which are appropriately resolved through the judicial
process. County of Sarpy v. City of Gretna, 267 Neb. 943, 678
N.W.2d 740 (2004). Standing is a jurisdictional component of a
party’s case because only a party who has standing may invoke
the jurisdiction of a court. Id.
[6,7] The purpose of an inquiry as to standing is to deter-
mine whether one has a legally protectable interest or right
in the controversy that would benefit by the relief to be
granted. Id. In order to have standing, a litigant must assert

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
HILLSBOROUGH HOMEOWNERS ASSN. v. KARNISH
Cite as 33 Neb. App. 228
the litigant’s own legal rights and interests and cannot rest his
or her claim on the legal rights or interests of third parties. Id.
The litigant must have some legal or equitable right, title, or
interest in the subject of the controversy. Id.
The Declaration of Covenants at issue provides: “THIS
DECLARATION 	. 	. 	. 	is 	made 	by 	MAPLE 	NORTH
ENTERPRISES, INC., a Nebraska corporation, hereinafter
referred to as the ‘Declarant.’” Under “General Provisions,”
it states:
Except for the authority and powers specifically granted
to the Declarant, the Declarant or any owner of a Lot
named herein shall have the right to enforce by a pro-
ceeding at law or in equity, all reservations, restrictions,
conditions and covenants now or hereinafter imposed by
the provisions of this Declaration either to prevent or
restrain any violation or to recover damages or other dues
of such violation.
Based on the plain language of the covenants, only the declar-
ant and lot owners have the right to enforce a covenant by a
proceeding at law or in equity. The present case was brought
by the Association against the Karnishes. The Association is a
Nebraska not-for-profit corporation established “for the pur-
pose of promoting the health, safety, recreation, welfare and
enjoyment of the residents of the Lots.” There is nothing in
the Declaration of Covenants to indicate that the Association
is a lot owner.
We are mindful of the language under “General Provisions,”
which further states:
Maple North Enterprises, Inc., a Nebraska corporation,
or its successor or assign, may terminate its status as
Declarant under this Declaration, at any time, by filing a
Notice of Termination of Status as Declarant. Upon such
filing, Association may appoint itself or another entity,
association or individual to serve as Declarant, and such
appointee shall thereafter serve as Declarant with the
same authority and powers as the original Declarant.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
HILLSBOROUGH HOMEOWNERS ASSN. v. KARNISH
Cite as 33 Neb. App. 228
This provision allows the declarant to terminate and appoint
the Association or someone else to serve in its role as declar-
ant, but there is nothing in our record which shows that a
termination was ever filed or that the declarant was ever
replaced. As such, the authority to enforce the covenants
remains with the original declarant or lot owners, and the
Association has failed to provide evidence of its standing to
bring this claim against the Karnishes. Accordingly, we dismiss
the Association’s appeal for lack of jurisdiction.
CONCLUSION
For the foregoing reasons, we conclude that the Association
did not have standing to bring the present action against
the 	Karnishes 	to 	enforce 	the 	covenants. 	We 	dismiss 	the
Association’s appeal for lack of jurisdiction.
Appeal dismissed.