Ginger Cove Common Area Co. v. Wiekhorst
893 N.W.2d 467
| Neb. | 2017Background
- Ginger Cove sued Wiekhorst and two others for unpaid annual assessments; service issues suggest the other two defendants were likely dismissed for lack of prosecution.
- Wiekhorst filed a counterclaim alleging Ginger Cove breached fiduciary duties.
- Timeline: case dismissed for lack of prosecution (9/29/2015); Ginger Cove moved to reinstate and for discovery sanctions (motions showing an Oct. 1 hearing); court entered a sanctions order striking Wiekhorst’s counterclaim and finding contempt (Oct. 6/Oct. 5 entries); case was later reinstated and again dismissed, then reinstated in December; Wiekhorst moved to vacate the sanctions (1/14/2016); court denied that motion (2/19/2016); bench trial resulted in judgment for Ginger Cove (4/20/2016); Wiekhorst appealed (5/20/2016).
- Wiekhorst’s principal claim on appeal: the court erred in denying his motion to vacate the sanctions order and violated his procedural due process because he lacked timely notice of the motions/hearings while the case was briefly dismissed.
- The district court’s sanctions order recited that proper notice was given and that no other counsel appeared; the appellate record lacked transcripts/bill of exceptions of the relevant hearings to contradict the journal entries.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appellate court has jurisdiction to review Wiekhorst’s challenge to the Feb. 2016 order denying his motion to vacate | Wiekhorst appealed from final judgment and may raise challenge to the Feb. 2016 order on that appeal | Ginger Cove contends the Feb. 2016 order was final and should have been appealed separately within 30 days | Court held both the Oct. 2015 sanctions order and the Feb. 2016 denial were interlocutory; appeal from final judgment sufficed, so jurisdiction exists |
| Whether the October 2015 sanctions order was a final, appealable order | Wiekhorst implicitly argues sanctions were void because issued during dismissal/no notice | Ginger Cove argues the sanctions order is valid and notice was given | Court held the sanctions order was a discovery/interlocutory ruling (not final) and could be reviewed on appeal from final judgment |
| Whether the district court abused discretion in denying the motion to vacate the sanctions order | Wiekhorst argues denial was erroneous and deprived him of due process due to lack of notice | Ginger Cove relies on the court’s journal entry reciting proper notice and absence of contradictory record evidence | Court affirmed: appellant failed to produce a record (transcript or bill of exceptions) rebutting the trial court’s journal entry; no abuse shown |
| Whether Wiekhorst was denied procedural due process by lack of notice of the hearings | Wiekhorst says transcript shows no notice and hearings may have occurred while case was dismissed | Ginger Cove points to the sanctions order’s recital of proper notice and to absence of proof to the contrary in record | Court held no proof to the contrary in record; journal entry imports verity and appellant bears burden to produce contrary evidence; due process claim fails |
Key Cases Cited
- Deines v. Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (Neb. 2016) (final-order framework and substantial-rights test)
- Furstenfeld v. Pepin, 287 Neb. 12, 840 N.W.2d 862 (Neb. 2013) (discovery orders generally not appealable interlocutory orders)
- Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906 (Neb. 2016) (final-order analysis)
- State v. Deckard, 272 Neb. 410, 722 N.W.2d 55 (Neb. 2006) (journal entries import verity absent contrary proof)
- Pierce v. Landmark Mgmt. Group, 293 Neb. 890, 880 N.W.2d 885 (Neb. 2016) (appellant’s duty to present record supporting assignments of error)