Conley v. Brazer

A mendment of P leAdings
Roger sought leave to file a second amended complaint in
order to reframe his claim as one in equity rather than at law
and to add all of the beneficiaries of Aner’s September 2003
will as parties. Although pled as a breach of contract claim,
the district court acknowledged that the claim was an equitable
action to impose a constructive trust and analyzed the mat-
ter as such. Because we conclude that Roger did not meet his
burden of proof to overcome summary judgment, the absence
of the beneficiaries of Aner’s most recent will as defendants is
immaterial as well. Allowing Roger to file a second amended
complaint to correct this defect would serve no purpose.
CONCLUSION
Viewing the evidence in the light most favorable to Roger,
we conclude that he did not present sufficient evidence to sat-
isfy one of the three ways to establish a contract to make a will
as provided by § 30-2351. Accordingly, we affirm the order of
summary judgment by the district court.
A ffirmed.
nAncy conley And todd conley, APPellAnts , v.
thomAs BrAzer And KAthy BrAzer , husBAnd
And wife , et Al ., APPellees.
772 N.W.2d 545
Filed September 4, 2009. 	No. S-08-974.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the
court views the evidence in the light most favorable to the party against whom
the judgment was granted, and gives that party the benefit of all reasonable infer-
ences deducible from the evidence.
3. Statutes: Appeal and Error. The interpretation of statutes presents questions of
law, in connection with which an appellate court has an obligation to reach an
independent conclusion irrespective of the decision made by the court below.
508 	278 NeBRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

4. Injunction: Equity: Appeal and Error. An action for injunction sounds in
equity. In an appeal of an equity action, an appellate court tries the factual ques-
tions de novo on the record and reaches a conclusion independent of the findings
of the trial court.
5. Rules of Evidence. In proceedings where the Nebraska evidence Rules apply,
the admissibility of evidence is controlled by such rules; judicial discretion
is involved only when the rules make such discretion a factor in determining
admissibility.
6. Trial: Evidence: Appeal and Error. A trial court has the discretion to determine
the relevancy and admissibility of evidence, and such determinations will not be
disturbed on appeal unless they constitute an abuse of that discretion.
7. Statutes: Words and Phrases. The word “may,” when used in a statute, will be
given its ordinary, permissive, and discretionary meaning unless it would mani-
festly defeat the statutory objective.
8. Constitutional Law: Jurisdiction: Injunction. The jurisdiction of the district
court to hear suits for injunction cannot be legislatively limited or controlled.
9. Summary Judgment. As a procedural equivalent to a trial, a summary judgment
is an extreme remedy because a summary judgment may dispose of a crucial
question in litigation, or the litigation itself, and may thereby deny a trial to the
party against whom the motion for summary judgment is directed.
10. ____. Summary judgment proceedings do not resolve factual issues, but instead
determine whether there is a material issue of fact in dispute.
11. Summary Judgment: Appeal and Error. Where ambiguity exists in a summary
judgment proceeding, an appellate court resolves such matters in favor of the
nonmoving party.
12. Appeal and Error. An appellate court will not consider an issue on appeal that
the trial court has not decided.
13. ____. An appellate court is not obligated to engage in an analysis which is not
needed to adjudicate the controversy before it. It may, at its discretion, discuss
issues unnecessary to the disposition of an appeal where those issues are likely to
recur during further proceedings.
14. Pretrial Procedure: Evidence: Proof. A party that seeks to claim another party’s
admission, as a result of that party’s failure to respond properly to a request for
admission, must prove service of the request for admission and the served party’s
failure to answer or object to the request and must also offer the request for
admission as evidence. If the necessary foundational requirements are met and no
motion is sustained to withdraw an admission, the trial court is obligated to give
effect to the provisions of Neb. Ct. R. Disc. § 6-336.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
w. russell Bowie iii, Judge. Reversed and remanded for fur-
ther proceedings.
Brian C. Doyle and, on brief, Aimee J. Haley, of Fullenkamp,
Doyle & Jobeun, for appellants.
CONLey v. BRAzeR 	509
Cite as 278 Neb. 508

Alan M. Thelen, Deputy Omaha City Attorney, for appellee
City of Omaha.
Donald p. Dworak, of Stinson, Morrison & Hecker, L.L.p.,
for appellees Thomas and kathy Brazer and paradise pet
Suites, LLC.
heAvicAn, c.J, connolly, gerrArd, stePhAn, and miller-
lermAn, JJ.
stePhAn, J.
I. NATURe OF THe CASe
Appellants, Nancy Conley and Todd Conley, and appellees
Thomas Brazer and kathy Brazer are adjacent landowners
in Douglas County, Nebraska. The Brazers applied for and
received a building permit from Douglas County to construct a
kennel on their property. The Conleys brought an action in the
Douglas County district court to enjoin the Brazers’ proposed
construction. The Conleys alleged that the building permit was
invalid due to deficiencies in the Brazers’ application and that
the county’s extensions of the expiration date of the permit
were not valid and effective. The district court found that the
Douglas County building permit was “presumptively” valid
and that therefore, the Conleys’ proper recourse was to appeal
to the Douglas County Board of Adjustment, not to the district
court. The court granted the Brazers’ motion to dismiss, and
the Conleys timely appealed.
II. BACkgROUND
1. PArties And P roPerties
The Brazers own and reside on property consisting of
approximately 9.21 acres located in Douglas County. The
Conleys’ residential property is located immediately south of
the Brazer property.
Since 1997, the Brazers have operated a dog grooming and
breeding business on their property. In 2002, the business was
expanded to include dog boarding; on average, one or two dogs
were boarded per day. In 2003, the Brazers began developing
plans to expand the boarding and grooming operation, and in
2006, they formed paradise pet Suites, LLC, for the purpose
510 	278 NeBRASkA RepORTS

of developing and operating their expanded business. By 2007,
the Brazers had decided to develop a business which would
include pet grooming services, a pet daycare, and private
boarding services.
In February 2007, the Brazers applied for and were issued
a Douglas County building permit in order to construct a
new kennel on their property. At that time, their property was
within the zoning jurisdiction of Douglas County. On March
1, 2007, the City of Omaha annexed elkhorn, Nebraska, and
as a result, Omaha’s extraterritorial zoning jurisdiction was
enlarged to include the Conley and Brazer properties. On April
18, a “Memorandum of Understanding” (MOU) was executed
by a City of Omaha building official and the Douglas County
director of environmental services. The MOU addresses build-
ing permits issued by Douglas County which, as of the date of
annexation, were “still active” in that the projects authorized
by them were in various stages of completion. The MOU
provided that Douglas County inspectors would complete the
inspection process on any and all permits that Douglas County
issued prior to March 1, 2007, and that the City of Omaha
would review requests for permits made after March 1 and
issue all new permits.
2. commencement of litigAtion And
temPorAry restrAining order
On March 13, 2008, soon after they first learned of the
Brazers’ construction plans, the Conleys filed an action in
the district court for Douglas County seeking declaratory and
injunctive relief to prevent any construction pursuant to the
Douglas County building permit. Named defendants included
the Brazers, paradise pet Suites, certain parties having financial
interests in the Brazer property, and the construction company
retained by the Brazers to build the kennel. In an amended
complaint, the City of Omaha and Douglas County were added
as defendants.
The Conleys alleged that the building permit issued by
Douglas County was invalid for various reasons and that to
proceed with their proposed construction, the Brazers were
required to obtain necessary permits from the City of Omaha,
CONLey v. BRAzeR 	511
Cite as 278 Neb. 508

because its extraterritorial zoning jurisdiction had expanded
to include the Brazer property as a result of the elkhorn
annexation. On March 14, 2008, the Conleys moved for an ex
parte temporary restraining order prohibiting the Brazers from
engaging in any construction activities pursuant to the permit.
The district court granted the Conleys’ motion and ordered that
the Brazers cease and desist any construction pursuant to the
February 2007 building permit issued by Douglas County.
3. temPorAry inJunction
The Conleys also moved for a temporary injunction, and the
district court conducted an evidentiary hearing on the motion.
The following facts were established by the evidence received
at that hearing:
(a) Douglas County Building permit
On February 8, 2007, the Brazers submitted an application
for a building permit to Douglas County for the construction
of a “Building & Fence For kennel.” On February 9, Douglas
County building inspector Mark ekberg issued building permit
No. 6664 in response to the Blazers’ application.
The Douglas County zoning regulations in effect at the time
of the Brazers’ application required applications for building
permits to be accompanied by two copies of the site plan, which
should depict existing and proposed water and sanitary sewer
facilities. The building permit application states that two sets of
building plans and well and septic permits are required.
As a building inspector for Douglas County, ekberg receives
all building applications and conducts all building inspections
and plan reviews. According to ekberg, when an application
for a building permit is received, the permit is issued even if
all of the required information has not been submitted. If an
incomplete application is submitted, ekberg conducts a “plan
review,” which results in a document that states all the items
that must be addressed prior to actual commencement of con-
struction. If the items on a plan review are not addressed prior
to construction, ekberg “issue[s] a stop order.”
ekberg’s plan review for the Brazer project, which bears
the same date as the building permit, notes that the permit
512 	278 NeBRASkA RepORTS

was conditional upon the completion of several items, includ-
ing a requirement that the Brazers obtain well and sanitary
sewer permits through the Douglas County Health Department.
ekberg testified that the Brazers did not prepare and submit
any site plans for their project, nor did they submit any proof
of a septic permit, even though the application states that site
plans and permits were required.
The supervisor of sanitary engineering for the Douglas
County Health Department testified that he supervises per-
mits for septic systems and wells and that no permit has been
applied for or issued for the Brazer property. According to the
supervisor, there is no septic system available on the Brazers’
site, and a septic permit would be required to construct one.
He testified that according to Douglas County zoning regula-
tions, “the septic and well permit has to be issued before any
building permit” so that his department “can review the public
health implications” of construction. The planning and zoning
coordinator for Douglas County environmental Services, who
is ekberg’s supervisor, also testified that Douglas County zon-
ing regulations require the septic permit to be issued prior to
the issuance of a building permit.
Douglas County regulations, the building permit application,
and the building permit issued to the Brazers state that issued
permits expire after 90 days if the work described in the permit
has not begun and expire after 1 year if the work has not been
completed. ekberg testified that the Brazers did not do any con-
struction on the kennel project referred to in the permit during
2007 and did not complete the project on or before February
9, 2008. Douglas County has adopted the 2000 International
Building Code, which provides that extensions of permits can
be made when a written extension request demonstrates “justi-
fiable cause.” entries in the Douglas County environmental
Services Department’s “permit Record Report” reflect that the
Brazers were granted permit extensions on May 1, July 2, and
December 21, 2007, and February 5, 2008. ekberg acknowl-
edged that the requests for extensions were made verbally by
the Brazers and their contractor and that ekberg made written
notations indicating the requests were granted.
CONLey v. BRAzeR 	513
Cite as 278 Neb. 508

(b) Rezoning
In 	February 	2007, 	the 	Conley 	property 	was 	zoned
“Agriculture - Farming 2” or AF-2. The Brazer property was
zoned “Agriculture - Farming 1” or AF-1. Douglas County zon-
ing regulations in effect as of June 14, 2005, permit private and
commercial kennels in an AF-1 zone, provided the facilities are
at least 100 feet from the property line and 300 feet from any
AF-2 zone.
On November 30, 2007, the Brazers applied to the City of
Omaha for rezoning of their property from Douglas County
AF-1 to City of Omaha “Development Reserve,” or DR dis-
trict. With a conditional use permit, a kennel is permitted in a
DR district. On December 3, the Brazers applied to the City
of Omaha zoning Board of Appeals for a waiver to split their
9.21 acres of real property into two lots. The first proposed lot
was 2.01 acres and included the existing Brazer residence and
outbuildings. The second proposed lot was 7.20 acres; it con-
tained no improvements and is the site of the Brazers’ proposed
construction. The waiver application stated that the Brazers
were “[r]equesting a lot split that doesn’t meet the code under
Douglas County Regs but does under City of Omaha DR zon-
ing.” Both applications were approved by the City of Omaha.
The property was rezoned to a DR district and split into two
lots. On December 31, the Brazers deeded the second lot to
paradise pet Suites.
Following the evidentiary hearing, the district court entered
an order finding that “the Conleys may be entitled to the relief
sought.” The court entered a temporary injunction in order to
maintain the status quo, which it described as “not having a
kennel built on . . . the Brazer’s [sic] property pending the
outcome of the litigation.” The court conditioned the tempo-
rary injunction on the Conleys’ posting a bond in the amount
of $1,000.
4. motions to dismiss
The City of Omaha and Douglas County were joined in
the case as defendants in an amended complaint filed after
entry of the temporary injunction. The City of Omaha filed
an answer in which it admitted that the Brazer property fell
514 	278 NeBRASkA RepORTS

within its 3-mile extraterritorial zoning jurisdiction by virtue of
its annexation of elkhorn on March 1, 2007. Douglas County
filed an answer asserting various defenses, including that the
Conleys’ claim was barred by their failure to file an appeal
to the Douglas County Board of Adjustment pursuant to Neb.
Rev. Stat. § 23-168.02 (Reissue 2007). The county also raised
this issue in a motion to dismiss.
The Brazers and paradise pet Suites, hereafter collectively
referred to as “the Brazers,” moved to dismiss on the grounds
that the Conleys failed to state a claim upon which relief can
be granted and that the district court was without subject mat-
ter jurisdiction because the Conleys had not “exhausted the
requisite administrative remedies and appeal process.” The
Brazers also filed a motion to vacate the temporary injunction
and determine damages resulting from its issuance and filed a
motion to increase the amount of the bond.
The district court conducted an evidentiary hearing on the
motions filed by the Brazers and the county. The Brazers
offered evidence relating to all three motions. This evidence
included affidavits of kathy Brazer, ekberg, and the presi-
dent of the construction company retained by the Brazers.
The Conleys objected to this evidence, and the court reserved
ruling. The Brazers also offered five exhibits which had
been received at the temporary injunction hearing, which the
court received.
The Conleys offered several exhibits, including exhibit 65, a
copy of a conditional use permit application submitted by the
Brazers to the City of Omaha on May 12, 2008. The Brazers
objected on grounds of relevance, hearsay, and lack of founda-
tion, and the district court reserved ruling. The Conleys also
offered a transcript of testimony from the temporary injunction
hearing and all exhibits received at that hearing. The Brazers’
counsel, who said he had not yet seen the transcript, objected
on grounds of hearsay, lack of foundation, and legal conclu-
sion, and the court reserved ruling. No parties objected to the
offer of exhibits previously received, and while the record is
somewhat ambiguous, it is our understanding that they were
received. The Conleys requested and were given leave to
conduct additional discovery and offer additional evidence in
CONLey v. BRAzeR 	515
Cite as 278 Neb. 508

response to the motions. The court granted the Conleys’ motion
and continued the hearing, noting that the Brazers’ motion to
dismiss should be treated as a motion for summary judgment,
because evidence had been offered in support of the motion
to dismiss and all parties should have an opportunity to offer
evidence pertinent to the motion.
At the close of this hearing, the court took the county’s
motion to dismiss under advisement. In an order entered July
14, 2008, the court overruled this motion, concluding that an
appeal pursuant to § 23-168.02 was not the Conleys’ exclusive
remedy for the reasons discussed in our opinion in Johnson v.
Knox Cty. Partnership1 and the authority provided by Neb. Rev.
Stat. § 23-114.05 (Reissue 2007).
At the continued hearing on the Brazers’ motions held on
August 12, 2008, the Conleys offered additional evidence,
including an affidavit of their attorney stating that the Brazers
had not responded to requests for admissions, copies of which
were attached to the affidavit. The Brazers objected on the
ground of relevance, and the court reserved ruling.
In an order entered on September 5, 2008, the district court
received certain exhibits on which it had reserved ruling,
including the transcript of testimony at the temporary injunc-
tion hearing. The order stated that the court would not receive
two exhibits offered by the Conleys: exhibit 65, the condi-
tional use permit application, and exhibit 68, the affidavit of
counsel regarding requests for admissions. The court granted
the Brazers’ motion to dismiss, reasoning that the Conleys
did not appeal the issuance of the building permit pursuant to
§ 23-168.02, that the building permit was “presumptively valid”
on the date that Omaha’s zoning jurisdiction was extended by
the elkhorn annexation, and that the Brazers had met their
burden of demonstrating no genuine issue of material fact and
entitlement to judgment as a matter of law. The district court
therefore vacated the temporary injunction and dismissed the
case as to all defendants.
1 Johnson v. Knox Cty. Partnership, 273 Neb. 123, 728 N.W.2d 101 (2007).
516 	278 NeBRASkA RepORTS

The Conleys perfected this timely appeal, which we moved
to our docket pursuant to our statutory authority to regulate the
caseloads of the appellate courts of this state.2
III. ASSIgNMeNTS OF eRROR
The Conleys assign, restated and consolidated, that the
district court erred in (1) granting summary judgment to the
Brazers and dismissing their complaint, (2) finding that after
March 1, 2007, the Douglas County Board of Adjustment had
authority over the Brazers’ building permit and authority to
hear the Conleys’ appeal, (3) finding that the Conleys were
required to appeal to the Douglas County Board of Adjustment,
(4) finding that the building permit issued by Douglas County
was valid and created grandfather rights for the Brazers, (5)
finding that the building permit allowed for retail sales and pet
grooming, (6) finding that the MOU between Douglas County
and the City of Omaha was valid, (7) dissolving the temporary
injunction granted to the Conleys, (8) finding there was no evi-
dence of zoning violations by the Brazers, and (9) refusing to
admit exhibits 65 and 68.
IV. STANDARD OF ReVIeW
[1,2] The district court correctly treated the Brazers’ motion
to dismiss as a motion for summary judgment, because evi-
dence was presented by the parties and received by the court.3
Summary judgment is proper if the pleadings and admissible
evidence offered at the hearing show that there is no genuine
issue as to any material facts or as to the ultimate inferences
that may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law.4 In reviewing a sum-
mary judgment, the court views the evidence in the light most
favorable to the party against whom the judgment was granted,
2 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
3 See, Crouse v. Pioneer Irr. Dist., 272 Neb. 276, 719 N.W.2d 722 (2006);
Wise v. Omaha Public Schools, 271 Neb. 635, 714 N.W.2d 19 (2006).
4 Jardine v. McVey, 276 Neb. 1023, 759 N.W.2d 690 (2009).
CONLey v. BRAzeR 	517
Cite as 278 Neb. 508

and gives that party the benefit of all reasonable inferences
deducible from the evidence.5
[3] The interpretation of statutes presents questions of law,
in connection with which an appellate court has an obligation
to reach an independent conclusion irrespective of the decision
made by the court below.6
[4] An action for injunction sounds in equity. In an appeal of
an equity action, an appellate court tries the factual questions
de novo on the record and reaches a conclusion independent of
the findings of the trial court.7
[5,6] In proceedings where the Nebraska evidence Rules
apply, the admissibility of evidence is controlled by such rules;
judicial discretion is involved only when the rules make such
discretion a factor in determining admissibility.8 A trial court
has the discretion to determine the relevancy and admissibility
of evidence, and such determinations will not be disturbed on
appeal unless they constitute an abuse of that discretion.9
V. ANALySIS
1. APPeAl to douglAs county BoArd of A dJustment
not required
The Brazers argue that Neb. Rev. Stat. §§ 23-168.01 to
23-168.04 (Reissue 2007), which generally address the author-
ity of county boards of adjustment, provide the exclusive
procedure for challenging decisions relating to building per-
mits. They argue that to challenge the validity of a building
permit, one must first file a complaint with a zoning enforce-
ment officer, whose decision may be appealed to a board of
5 Id.
6 Vokal v. Nebraska Acct. & Disclosure Comm., 276 Neb. 988, 759 N.W.2d
75 (2009).
7 Hogelin v. City of Columbus, 274 Neb. 453, 741 N.W.2d 617 (2007).
8 Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754 N.W.2d
406 (2008); Rankin v. Stetson, 275 Neb. 775, 749 N.W.2d 460 (2008).
9 Sturzenegger v. Father Flanagan’s Boys’ Home, supra note 8; Aon
Consulting v. Midlands Fin. Benefits, 275 Neb. 642, 748 N.W.2d 626
(2008); Law Offices of Ronald J. Palagi v. Howard, 275 Neb. 334, 747
N.W.2d 1 (2008).
518 	278 NeBRASkA RepORTS

adjustment, which decision in turn may be appealed to the
district court.
[7] Section 23-168.02(1) states that “[a]n appeal to the
board of adjustment may be taken by any person or persons
aggrieved . . . by any decision of an administrative officer or
planning commission.” (emphasis supplied.) The word “may,”
when used in a statute, will be given its ordinary, permissive,
and discretionary meaning unless it would manifestly defeat
the statutory objective.10 The plain language of § 23-114.05
establishes that an appeal to a board of adjustment is not the
exclusive remedy for challenging a land use alleged to be in
violation of zoning regulations. Section 23-114.05 states in
relevant part:
In addition to other remedies, the county board or the
proper local authorities of the county, as well as any
owner or owners of real estate within the district affected
by the regulations, may institute any appropriate action or
proceedings to prevent such unlawful construction . . . or
to prevent the illegal act, conduct, business, or use in or
about such premises.
(emphasis supplied.)
Our prior decisions support the view that an aggrieved party
may use § 23-114.05 to seek injunction of land use in viola-
tion of regulations. In Johnson v. Knox Cty. Partnership,11
landowners brought an action against the operator of a nearby
cattle confinement facility and the owner of the land on which
it operated, alleging that the facility violated county zoning
regulations and constituted a private nuisance. While the land-
owners did not specifically invoke § 23-114.05, we noted that
their complaint “includes factual allegations which, if proved,
would entitle them to relief under this statutory remedy.”12
However, we agreed with the determination of the district court
that the evidence did not support recovery under this theory.
10 Pepitone v. Winn, 272 Neb. 443, 722 N.W.2d 710 (2006); State v. County
of Lancaster, 272 Neb. 376, 721 N.W.2d 644 (2006).
11 Johnson v. Knox Cty. Partnership, supra note 1.
12 Id. at 130, 728 N.W.2d at 107.
CONLey v. BRAzeR 	519
Cite as 278 Neb. 508

Similarly, in Omaha Fish and Wildlife Club, Inc. v. Community
Refuse, Inc.,13 the Omaha Fish and Wildlife Club, Inc., filed a
petition in district court seeking to enjoin the establishment
by Community Refuse, Inc., of a solid waste disposal area
on land owned by the county but not zoned for such a pur-
pose. Community Refuse argued that the court was divested
of jurisdiction by Nebraska’s environmental protection Act,
which governs operations relating to solid waste disposal. We
disagreed, stating:
The statute pertaining to injunctions against a violation
of a county zoning ordinance is clear. There must be such
a procedure, because § 23-114.05 enacts it. In this way,
county zoning ordinances are self-policing. Not only can
the county officials begin a suit, but other “affected” own-
ers of real estate also can do so.14
[8] As “affected” owners of real estate, the Conleys were
authorized by § 23-114.05 to bring an action to enjoin what
they alleged to be a violation of Douglas County zoning regula-
tions by the Brazers, specifically, the construction of the kennel
pursuant to a building permit which the Conleys alleged was
improperly issued, had expired, or both. This remedy is inde-
pendent of the remedies offered by §§ 23-168.01 to 23-168.04.
Further, as we noted in Omaha Fish and Wildlife Club, Inc.,
the jurisdiction of the district court to hear suits for injunction
“cannot be legislatively limited or controlled.”15
We briefly note that two cases cited by the Brazers do not
support their position that the Conleys were required to appeal
the issuance of the building permit to the Douglas County
Board of Adjustment instead of or as a prerequisite to suing
for an injunction. In Hanchera v. Board of Adjustment,16 we
discussed the limited scope of judicial review of an appeal
from a decision of a board of adjustment. The opinion does not
13 Omaha Fish and Wildlife Club, Inc. v. Community Refuse, Inc., 208 Neb.
110, 302 N.W.2d 379 (1981).
14 Id. at 112, 302 N.W.2d at 380.
15 Id., citing Neb. Const. art. V, § 9.
16 Hanchera v. Board of Adjustment, 269 Neb. 623, 694 N.W.2d 641 (2005).
520 	278 NeBRASkA RepORTS

address the question of whether an action for injunction could
be maintained as an alternative remedy. The Brazers also argue
that the legislative history discussed in Niewohner v. Antelope
Cty. Bd. of Adjustment17 shows that the Legislature intended
that §§ 23-168.01 to 23-168.04 provide the exclusive procedure
for challenging decisions relating to building permits. But the
statements by the bill’s introducer quoted in Niewohner refer
to a board of adjustment as “‘an avenue of appeal’” or “‘an
appeal mechanism.’”18 The opinion itself and the legislative
history quoted therein do not suggest boards of adjustment
are the exclusive remedy for challenging zoning decisions
or permits.
Accordingly, we conclude that the Conleys were not required
to appeal issuance of the building permit to the Douglas County
Board of Adjustment because under § 23-114.05, they may
petition the district court for injunctive relief directly. Having
determined that the Conleys’ petition was properly before the
district court, we now turn to the merits of their claim.
2. genuine issues of mAteriAl fAct
P recluded summAry Judgment
[9-11] As a procedural equivalent to a trial, a summary
judgment is an extreme remedy because a summary judgment
may dispose of a crucial question in litigation, or the litigation
itself, and may thereby deny a trial to the party against whom
the motion for summary judgment is directed.19 Summary judg-
ment proceedings do not resolve factual issues, but instead
determine whether there is a material issue of fact in dispute.20
Where ambiguity exists in a summary judgment proceeding, an
appellate court resolves such matters in favor of the nonmoving
17 Niewohner v. Antelope Cty. Bd. of Adjustment, 12 Neb. App. 132, 668
N.W.2d 258 (2003) (superseded by statute).
18 Id. at 137, 668 N.W.2d at 262, 263 (emphasis supplied).
19 State ex rel. Wagner v. Gilbane Bldg. Co., 276 Neb. 686, 757 N.W.2d
194 (2008); Fossett v. Board of Regents, 258 Neb. 703, 605 N.W.2d 465
(2000).
20 Sweem v. American Fidelity Life Assurance Co., 274 Neb. 313, 739
N.W.2d 442 (2007).
CONLey v. BRAzeR 	521
Cite as 278 Neb. 508

party.21 Mindful of these principles and our standard of review
requiring that we consider the evidence in a light most favor-
able to the nonmoving parties, in this case the Conleys, we
conclude that there are genuine issues of material fact which
preclude summary judgment.
(a) Issuance of Building permit
Section 24 of the Douglas County zoning regulations in
effect at the time of the Brazers’ application states that writ-
ten application for building permits “shall be accompanied by
plans in duplicate, drawn to scale, showing . . . existing and
proposed water and sanitary sewer facilities, as may be nec-
essary to determine and provide for the enforcement of this
regulation.” The building permit application states: “Include
drawing of proposed building - dwelling requires two sets of
plans (well & septic permit also required).”
ekberg testified that the Brazers submitted a “set of plans”
for the building with their building permit application, but did
not prepare and submit any site plans. A May 1, 2007, com-
ment in the “permit Record Report” for the Brazers’ permit
notes that someone from the construction company came to the
permit office to request an extension of the building permit and
that while there, “present[ed] a site plan version of project.”
The record does not reflect whether this “site plan version”
would have been sufficient to meet the building permit applica-
tion requirements, and the site plan presented at that time is not
in the record.
A series of Douglas County authorities, including ekberg,
his supervisor, and the supervisor of sanitary engineering for
the Douglas County Health Department, testified that well and
sewer permits were required prior to the issuance of a build-
ing permit. ekberg testified that the Brazers did not submit
any proof of obtaining a septic permit with their building
permit application, and the supervisor of sanitary engineering
testified that no permit has been applied for or issued for the
Brazer property.
21 Controlled Environ. Constr. v. Key Indus. Refrig., 266 Neb. 927, 670
N.W.2d 771 (2003).
522 	278 NeBRASkA RepORTS

According to ekberg, building permits are granted as a mat-
ter of course when an application is made and any deficiencies
in the application result in a “plan review.” In the Brazers’ case,
ekberg’s plan review noted that the Brazers needed to obtain
well and sanitary sewer permits through the Douglas County
Health Department, among other things. Despite ekberg’s tes-
timony that it was customary for his office to issue a building
permit before all preliminary requirements were met with the
understanding that no construction would begin until that time,
Douglas County zoning regulations do not specifically provide
for such a system.
Viewing these facts in the light most favorable to the Conleys,
we conclude that a material issue of fact exists as to whether
the Douglas County building permit was valid when issued.
(b) extension of Building permit
Section 24 of the Douglas County zoning regulations states:
except where an extension has been obtained in writ-
ing from the Building Inspector, permits issued shall
expire within ninety (90) days if the work described in
the permit has not begun or the use applied for has not
been established and within one year if the work has
not been completed.
The building permit application includes a similar statement.
Section 105.3.2 of the 2000 International Building Code adopted
by Douglas County states that a “building official is authorized
to grant one or more extensions of time for additional periods
not exceeding 90 days each. The extension shall be requested
in writing and justifiable cause demonstrated.”
The Brazers’ builder testified that no construction took place
in 2007 and that construction was set to commence in March
2008, but was halted by the injunction. ekberg testified that the
Brazers did not do any construction under the permit in 2007
and did not complete the project on or before February 9, 2008,
1 year after the building permit had been issued. ekberg’s
testimony regarding requests for extension of the building per-
mit is at best ambiguous, but can be construed to mean that
he received only oral requests for extensions of the building
permit from the Brazers’ contractor. Viewing these facts in
the light most favorable to the Conleys, we conclude that a
CONLey v. BRAzeR 	523
Cite as 278 Neb. 508

material issue of fact exists as to whether the Douglas County
permit was validly extended by the Brazers.
(c) Alleged zoning Violations
According to the Douglas County zoning regulations in
effect at the time of the Brazers’ permit application, “private
and Commercial kennel and facilities for the raising, breeding
and boarding of dogs and other small animals” are permitted
in an AF-1 zone “provided that all buildings and facilities be
at least 100 feet from the property line and 300 feet from any
AF-2 . . . District.” ekberg testified that when reviewing an
application for a building permit, he will not “normally” issue
a building permit to someone who has an existing zoning vio-
lation on their property. He also testified that at the time he
issued the building permit to the Brazers, he was not aware
that they had an existing kennel and grooming operation in
their home within 300 yards of an AF-2 zone. He explained
that had he been aware of a violation at the time, he would
have issued the building permit only if the existing violation
was eliminated.
A plat prepared by a surveyor at the request of the Brazers
suggests their grooming and boarding operation, as it existed
at the time they applied for the building permit, was located
within 200 feet of the southern Brazer-Conley property line.
This evidence presents a genuine issue of material fact bear-
ing upon whether the building permit was lawfully issued and
extended. Viewed in a light most favorable to the Conleys,
there is evidence from which an inference could be drawn that
the Brazers were in violation of zoning regulations at the time
of the issuance of the building permit.
In summary, we conclude that the district court erred in
granting a summary judgment of dismissal because there are
genuine issues of material fact which preclude the extreme
remedy of summary judgment.
3. other A ssignments of error
[12] An appellate court will not consider an issue on appeal
that the trial court has not decided.22 We do not read the order
22 Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).
524 	278 NeBRASkA RepORTS

of the district court as ruling on the legality or applicability of
the Douglas County-City of Omaha MOU, and we therefore do
not reach that issue.
[13] An appellate court is not obligated to engage in an analy-
sis which is not needed to adjudicate the controversy before
it. It may, at its discretion, discuss issues unnecessary to the
disposition of an appeal where those issues are likely to recur
during further proceedings.23 Because we have determined that
entry of summary judgment was reversible error, we are not
obligated to address the Conleys’ remaining assignments of
error. However, we exercise our discretion to address the issues
involving the admissibility of counsel’s affidavit regarding the
failure of the Brazers to respond to requests for admission.
According to Neb. Ct. R. Disc. § 6-336(a),
[t]he matter is admitted unless, within thirty days after ser-
vice of the request [for admissions], or within such shorter
or longer time as the court may allow, the party to whom
the request is directed serves upon the party requesting
the admission a written answer or objection addressed to
the matter . . . .
Section 6-336(b) states in part, “Any matter admitted under
this rule is conclusively established unless the court on motion
permits withdrawal or amendment of the admission.”
[14] A party that seeks to claim another party’s admission, as
a result of that party’s failure to respond properly to a request
for admission, must prove service of the request for admission
and the served party’s failure to answer or object to the request
and must also offer the request for admission as evidence.24 If
the necessary foundational requirements are met and no motion
is sustained to withdraw an admission, the trial court is obli-
gated to give effect to the provisions of § 6-336.25
In City of Ashland v. Ashland Salvage,26 we determined that
a copy of the requests for admissions and an affidavit of one
23 Curry v. Lewis & Clark NRD, 267 Neb. 857, 678 N.W.2d 95 (2004).
24 City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861
(2006).
25 Id.
26 Id.
CONLey v. BRAzeR 	525
Cite as 278 Neb. 508

of the city’s attorneys setting forth (1) the date on which the
city served its requests and (2) the appellant’s failure to provide
timely responses to these requests were sufficient foundation.
The same foundation was offered here.
On July 10, 2008, the Conleys served their first set of inter-
rogatories, requests for production of documents, and requests
for admissions. On August 7, the Brazers filed a motion for a
30-day extension of discovery deadlines to respond to inter-
rogatories, requests for production of documents, and the
requests for admissions which are the subject of exhibit 68.
On August 12, at the summary judgment hearing, the Conleys’
attorney offered as exhibit 68 her affidavit stating the date on
which the requests were served and that as of August 12, no
response had been made. The Brazers’ motion for an extension
of discovery deadlines was pending when the district court
entered its final order, in which it denied the Brazers’ motion
as moot.
The Brazers objected to the affidavit on the ground of rele-
vance. The district court’s order states that exhibit 68 was not
received, without providing any explanation for its ruling.
We cannot determine from the record whether the relevance
objection pertained to the subject matter of the requests for
admission or to a contention that the matters were not deemed
admitted because of the pending motion for extension of time
to respond, or for any other reason. As to the former, we note
that some or all of the matters on which the Conleys requested
admissions are clearly relevant to the issues in this case. We
express no opinion as to whether those matters are deemed
admitted by the fact that the Brazers had not responded to
the requests for admission as of the date of the affidavit. That
determination should be made by the district court in the first
instance on remand.
The Conleys also assign as error the district court’s dissolu-
tion of its temporary injunction enjoining the Brazers from pro-
ceeding with their planned construction. The district court dis-
solved the temporary injunction based on the same reasoning
that supported its entry of summary judgment. As explained
above, we find that reasoning was erroneous. But whether the
injunction should be reinstated is a question that depends on
526 	278 NeBRASkA RepORTS

facts that may not be reflected in the record currently before
us. Therefore, while we agree with the premise of the Conleys’
argument, we decline to order that the injunction be reinstated.
Instead, whether the temporary injunction should be reinstated
is a matter left to the district court’s discretion following
remand, and we express no opinion on the matter.
VI. CONCLUSION
We conclude that the Conleys were entitled to seek injunctive
relief without first resorting to the appeal procedure set forth in
§§ 23-168.01 to 23-168.04. We further conclude that the dis-
trict court erred in granting summary judgment to the Brazers,
paradise pet Suites, Douglas County, the City of Omaha, and
the other named defendants because there are genuine issues of
material fact pertaining to the Conleys’ requests for injunctive
and declaratory relief. We therefore reverse the judgment of
the district court and remand the cause for further proceedings
consistent with this opinion.
reversed And remAnded for
further Proceedings.
mccormAcK, J., participating on briefs.
wright, J., not participating.
stAte of neBrAsKA ex rel . counsel for disciPline
of the neBrAsKA suPreme court, relAtor , v.
K ristine d. corcorAn frye , resPondent.
771 N.W.2d 571
Filed September 4, 2009. 	No. S-09-139.
Original action. Judgment of suspension.
heAvicAn, 	c.J., 	wright, 	connolly, 	gerrArd, 	stePhAn,
mccormAcK, and miller-lermAn, JJ.
P er curiAm.
INTRODUCTION
Respondent, kristine D. Corcoran Frye, was admitted to the
practice of law in the State of Nebraska on April 8, 1983, and
at all times relevant, was engaged in the private practice of law
STATe ex ReL. COUNSeL FOR DIS. v. FRye 	527
Cite as 278 Neb. 527