Ginger Cove Common Area Co. v. Wiekhorst
296 Neb. 416
| Neb. | 2017Background
- Ginger Cove sued Wiekhorst for unpaid annual assessments; two co-defendants apparently were not timely served and the claims against them were dismissed by operation of law.
- Wiekhorst filed a counterclaim alleging Ginger Cove breached fiduciary duties; the suit proceeded with discovery disputes.
- After the court dismissed the case for lack of prosecution on Sept 29, 2015, Ginger Cove moved to reinstate and to impose discovery sanctions; the case was reinstated and, in October 2015, the court found Wiekhorst in contempt and struck his counterclaim as a sanction.
- Wiekhorst later moved (Jan 14, 2016) to vacate the sanctions order; the court denied that motion after a February 2016 hearing.
- After a bench trial the court entered final judgment against Wiekhorst on April 20, 2016; Wiekhorst timely appealed from the final judgment and challenged the denial of his motion to vacate the sanctions order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Feb 2016 order denying motion to vacate sanctions was a final appealable order | Ginger Cove: Feb order not appealed separately; jurisdiction exists on appeal from final judgment | Wiekhorst: Feb order was final and appealable; failure to appeal within 30 days waived review | Court: Feb order was not final; sanctions order and denial were interlocutory and reviewable on appeal from final judgment |
| Whether the October 2015 sanctions order affected a substantial right | Ginger Cove: sanctions did not create a final order; interlocutory discovery ruling | Wiekhorst: striking counterclaim eliminated a defense/claim and thus affected substantial rights | Court: The October sanction was interlocutory; it did not fall within final-order categories of § 25-1902 |
| Whether Wiekhorst received adequate notice of the reinstatement and sanctions hearings (due process claim) | Wiekhorst: transcript shows no proof of timely notice; he lacked opportunity to be heard | Ginger Cove: court record and sanctions order state proper notice was given and no counsel appeared | Court: Trial court’s journal entry imports verity; appellant must produce contrary evidence in the record; transcript/bill of exceptions did not prove lack of notice |
| Whether the appellate record supports reversal of the denial to vacate sanctions | Wiekhorst: relies on transcript and bill of exceptions to show error | Ginger Cove: record shows court’s findings and no contradictory proof provided | Court: Appellant failed to present the hearings or evidence in the record; absent record, appellate court affirms |
Key Cases Cited
- Deines v. Essex Corp., 293 Neb. 577 (2016) (defines when an order affects a substantial right and is final for appeal)
- Furstenfeld v. Pepin, 287 Neb. 12 (2013) (discovery orders are generally not immediately appealable)
- Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943 (2016) (order must dispose of the whole merits to be final)
- State v. Deckard, 272 Neb. 410 (2006) (journal entries of the trial court import absolute verity)