            Decisions  of the Nebraska Court of Appeals
	                OAK HILLS HIGHLANDS ASSN. v. LeVASSEUR	889
	                          Cite as 21 Neb. App. 889

we modify the sentencing order to state that Matthews is
entitled to credit for time served in the amount of 562 days
against the aggregate of the minimum and the aggregate of
the maximum sentences of imprisonment and not as to each
sentence individually.
	Affirmed in part as modified, vacated
	                       in part, and in part reversed and
	                       remanded for a new trial.




      Oak Hills Highlands Association, Inc., appellant, v.
        Scott LeVasseur, Personal R epresentative of
            the Estate of William LeVasseur, Sr.,
                      et al., appellees.
                                   ___ N.W.2d ___

                        Filed April 1, 2014.   No. A-12-1173.

 1.	 Summary Judgment: Appeal and Error. An appellate court will affirm a lower
     court’s granting of summary judgment 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.
 2.	 ____: ____. In reviewing a summary judgment, an appellate 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 inferences deducible
     from the evidence.

  Appeal from the District Court for Douglas County: P eter
C. Bataillon, Judge. Reversed and remanded for further
proceedings.

  Ben Thompson, of Thompson Law Office, P.C., L.L.O., for
appellant.

   Albert M. Engles and James C. Boesen, of Engles, Ketcham,
Olson & Keith, P.C., for appellee Scott LeVasseur, as personal
representative.

    Inbody, Chief Judge, and Moore and Riedmann, Judges.
   Decisions of the Nebraska Court of Appeals
890	21 NEBRASKA APPELLATE REPORTS



   Inbody, Chief Judge.
                      INTRODUCTION
   Oak Hills Highlands Association, Inc. (the Association),
appeals the order of the Douglas County District Court
which entered summary judgment in favor of the appel-
lees. In this case, the Association claims that its adoption
of the Nebraska Condominium Act (NCA) allowed for the
Association to assess certain special assessments against the
owner of a condominium for expenses incurred as a result
of a fire caused by the owner’s misconduct. See Neb. Rev.
Stat. §§ 76-825 to 76-894 (Reissue 2009 & Supp. 2013).
The district court determined that the Association’s “Revised
Declaration and Master Deed” (Revised Declaration) and
bylaws did not expressly adopt the NCA and rejected the
claims of the Association.

                    STATEMENT OF FACTS
   The circumstances of this case stem from a fire which
destroyed the condominium owned by William LeVasseur, Sr.
LeVasseur owned the real estate referred to as “apartment #10”
of the Oak Hills Highlands condominium property, regime 3,
in Omaha, Nebraska, and he was a member of the Association.
On October 11, 2009, a fire occurred at LeVasseur’s con-
dominium, allegedly beginning after LeVasseur fell asleep
smoking a cigarette near his oxygen tank. The fire caused an
estimated $243,683.43 in damages. The Association claims
that as a result of the fire, their insurance premiums increased
significantly. The Association claims that the fire was caused
by LeVasseur’s misconduct and that, as a result of the alleged
misconduct, the increase in the Association’s insurance pre­
miums was solely due to LeVasseur. The Association imposed
a special assessment against LeVasseur for the total amount of
its increased premiums.
   The Association’s annual insurance premium increased
from $39,120 to $65,325, which the Association alleges was
an increase of $15,648 for a claim record related to the fire
and a $10,557 increase as a result of a statewide increase for
all condominiums. The Association alleges that the 3-year
premium increase totals $46,944, in addition to interest in
        Decisions of the Nebraska Court of Appeals
	           OAK HILLS HIGHLANDS ASSN. v. LeVASSEUR	891
	                     Cite as 21 Neb. App. 889

the amount of $14,482.17 and attorney fees and other charges
of $16,691.37, all of which the Association indicates that
LeVasseur, who passed away in February 2010, and now his
estate, refused to pay. The Association filed a notice of assess-
ment with the Douglas County register of deeds, which placed
a lien on the property.
   On October 20, 2010, the Association filed a complaint
in equity for a foreclosure of the assessment lien seeking
a decree of foreclosure of liens imposed as a result of the
Association’s special assessments against LeVasseur totaling
$37,945. The complaint alleges that LeVasseur is the record
owner of real estate referred to as “apartment #10” of the Oak
Hills Highlands condominium property, regime 3, and that the
special assessments were imposed and not paid by LeVasseur,
nor were they paid by his estate upon his passing. The com-
plaint further indicates that 18 percent interest, prelitigation
lien filing charges, and attorney fees had also accrued.
   Scott LeVasseur, the personal representative of LeVasseur’s
estate and also LeVasseur’s son, filed an answer in his capacity
as personal representative generally denying the Association’s
complaint and requesting that it be dismissed. Scott and his
siblings filed an answer as individuals also generally denying
the Association’s complaint and seeking its dismissal.
   In August 2011, Scott, as personal representative, filed
a motion for summary judgment indicating the Association
alleged that LeVasseur violated the terms of the Association’s
covenants from which the special assessments were imposed,
but that the special assessment was invalid. The Association
also filed a motion for summary judgment, and the matter was
set for hearing.
   The district court entered an order overruling both parties’
motions for summary judgment. The district court found that
the language in the bylaws was not as expansive as the lan-
guage of the NCA, which the Association had not adopted,
and instead “limit[ed] the exposure for misconduct” to that
enumerated in the bylaws. The court concluded that it was
not satisfied the bylaws allowed for a special assessment such
as was levied against LeVasseur and that, furthermore, there
was a question as to the meaning of what the phrase “the
   Decisions of the Nebraska Court of Appeals
892	21 NEBRASKA APPELLATE REPORTS



reasonable expenses incurred” encompassed as set forth in the
Association’s bylaws.
   Thereafter, Scott, as personal representative, filed a motion
for reconsideration alleging that the only expenses the
Association actually incurred was the $2,000 insurance deduct-
ible which was paid by LeVasseur. The Association also filed
a motion for reconsideration indicating that any question as to
whether or not the NCA had been adopted by the Association
was answered in the bylaws which specifically state that “the
Association desires to adopt the provisions of the [NCA] in its
entirety.” The Association further alleged in the motion that
under the NCA, it had the authority to assess special assess-
ments for misconduct and that “‘reasonable expenses incurred
in the reconstruction or repair’” included the increase to insur-
ance premiums.
   On June 20, 2012, a hearing was held on the parties’
motions to reconsider. The district court issued an order on the
motions setting forth that the Association argued that the NCA
was adopted by the Association in the Revised Declaration,
which contains the statement, “WHEREAS, the Association
desires to adopt the provisions of the [NCA] in its entirety.”
The court found that although the Revised Declaration states
the Association desired to adopt the NCA, the court could
not find that it did in fact adopt the NCA. The court further
found that even if the Association did adopt the NCA in the
Revised Declaration, the bylaws did not reference the NCA
or the Revised Declaration nor did the bylaws state that the
Revised Declaration was to be used in the interpretation of
the bylaws. The court explained that the bylaws specifically
set forth, in “Article XII, Common Expenses,” under what
circumstances there can be assessments, but then reference the
“Act” in regard to other broad assessments. The court found
that the specific language of the bylaws limiting the assessment
applied. Specifically,
      the Court could not find where in the Revised Declaration
      . . . that it accepted the Act; and even if it did, there was no
      reference to this Revised Declaration . . . in the By-Laws;
      and this Court is of the opinion that these By-Laws
      limited the assessment authority of the Association and
        Decisions of the Nebraska Court of Appeals
	           OAK HILLS HIGHLANDS ASSN. v. LeVASSEUR	893
	                     Cite as 21 Neb. App. 889

     did not grant it the full powers as the [NCA] would
     have allowed.
   The court reaffirmed its prior order as to the interpretation
of the Association’s bylaws and assessment authority. The
court further found that there were no further issues in the
matter because all assessments that could have been assessed
had been paid and that there were no disputes that all pay-
ments and damages pursuant to the bylaws had been paid
by the Association or its insurance carrier. The district court
sustained the motion for summary judgment filed by Scott, as
personal representative, and dismissed the matter, with costs to
the Association. It is from this order that the Association has
timely appealed.

                 ASSIGNMENTS OF ERROR
   The Association assigns that the district court erred (1) by
finding that the Revised Declaration and bylaws were ambig­
uous, (2) by granting summary judgment if there were ambi-
guities concerning material facts, (3) by failing to conclude
that the Association adopted the NCA, (4) by finding that
§ 76-873 does not apply, (5) by finding that the Association’s
Revised Declaration and bylaws did not permit the Association
to assess increased common expenses caused by the miscon-
duct of the homeowner, and (6) by failing to order foreclosure
of the Association’s lien for special assessments unrelated to
the fire.

                  STANDARD OF REVIEW
   [1] An appellate court will affirm a lower court’s granting
of summary judgment 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. Westin Hills v. Federal
Nat. Mortgage Assn., 283 Neb. 960, 814 N.W.2d 378 (2012);
Howsden v. Roper’s Real Estate Co., 282 Neb. 666, 805
N.W.2d 640 (2011).
   [2] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
   Decisions of the Nebraska Court of Appeals
894	21 NEBRASKA APPELLATE REPORTS



against whom the judgment was granted, and gives that
party the benefit of all reasonable inferences deducible from
the evidence. Westin Hills v. Federal Nat. Mortgage Assn.,
supra; Doe v. Board of Regents, 283 Neb. 303, 809 N.W.2d
263 (2012).

                          ANALYSIS
   The Association argues that the “Act” referred to in the
bylaws was explicitly adopted. In granting the motion for
summary judgment filed by Scott, as personal representative,
the district court concluded that the Association’s Revised
Declaration did not contain specific language in which the
NCA was adopted and that the NCA was not specifically ref-
erenced in the bylaws. Thus, the district court concluded that
the Association did not have the power to assess any special
assessments that it might have been otherwise allowed to under
the NCA.
   In Nebraska, the Condominium Property Act governs those
condominium regimes created prior to 1984. See Neb. Rev.
Stat. §§ 76-801 to 76-824.01 (Reissue 2009). Condominium
regimes created after January 1, 1984, are subject to the NCA.
See § 76-826. The Association’s original master deed was
recorded on February 24, 1977, thus originally subjecting the
Association to the Condominium Property Act. In June 1998,
the Association filed its Revised Declaration. The Revised
Declaration, as indicated in the statement of facts, sets forth
that “WHEREAS, the Association desires to adopt the provi-
sions of the [NCA] in its entirety.”
   The district court’s determination essentially rested upon
the Association’s use of the word “desires” in the Revised
Declaration. However, in reviewing the Condominium Property
Act, specifically § 76-803, the language of the statute utilizes
the word “desire” in reference to establishing a condominium
property regime, such that,
         [w]henever a sole owner or the co-owners of property
      expressly declare, through the recordation of a master
      deed, which shall set forth the particulars enumerated
      in section 76-809, their desire to submit their property
        Decisions of the Nebraska Court of Appeals
	           OAK HILLS HIGHLANDS ASSN. v. LeVASSEUR	895
	                     Cite as 21 Neb. App. 889

      to the regime established by sections 76-801 to 76-823,
      there shall thereby be established a condominium prop-
      erty regime.
   Section 76-826(b) of the NCA specifically provides that
amendments to the master deed, bylaws, and plans of any
condominium regime created before January 1, 1984, are not
invalidated by the Condominium Property Act if the amend-
ment is permitted by the NCA. Further, § 76-826(b) provides
that any such “amendment must be adopted in conformity with
the procedures and requirements specified by those instruments
and by sections 76-801 to 76-824.” The plain language of
§ 76-803 establishes that a condominium regime is established
through a recordation of the master deed.
   In this case, the pleadings and admissible evidence offered
at the hearing show that the Association’s bylaws provided
that the bylaws may be changed with 662⁄3 percent of the votes
cast by members and shall be operative upon the recording
of the amendment with the register of deeds. The Revised
Declaration and the revised and restated bylaws were both
adopted by “more than seventy-five (75%) percent of the total
basic value of the Unit Owners in the Condominium.” The
Revised Declaration set forth the unit owners’ desire to adopt
the NCA, and the Revised Declaration was registered with the
register of deeds on June 3, 1998. Throughout the Revised
Declaration, the Association required that certain actions be
made in accordance with the “Act” and defined the “Act” as
the NCA.
   Therefore, in viewing the evidence in the light most favor-
able to the Association, and giving the Association the benefit
of all reasonable inferences deducible from the evidence, we
find that the Revised Declaration was adopted in conformity
with the procedures and requirements specified in §§ 76-801
to 76-824.01 and that, as such, the Association, by record-
ing the master deed, adopted the provisions of the NCA in
its entirety as indicated in the Revised Declaration and in the
Association’s bylaws. The district court erred by finding to the
contrary and by granting the motion for summary judgment
filed by Scott, as personal representative, because genuine
   Decisions of the Nebraska Court of Appeals
896	21 NEBRASKA APPELLATE REPORTS



issues of material fact remain. Having made this determina-
tion, we need not address the Association’s remaining assign-
ments of error.
                        CONCLUSION
   In conclusion, we find that the district court erred by
granting the motion for summary judgment filed by Scott,
as personal representative. Therefore, we reverse the dis-
trict court’s determination and remand the matter for further
proceedings.
	R eversed and remanded for
	                               further proceedings.
