Ginger Cove Common Area Co. v. Wiekhorst
296 Neb. 416
| Neb. | 2017Background
- Ginger Cove sued Wiekhorst for unpaid annual assessments; Wiekhorst filed counterclaims alleging breach of fiduciary duty. Two co-defendants appear to have been dismissed for lack of service.
- A discovery dispute led Ginger Cove to move for sanctions; the district court found Wiekhorst in contempt in an October 2015 order and struck his counterclaim as a sanction.
- The case was dismissed for lack of prosecution on Sept. 29, 2015, then motions to reinstate and for sanctions were filed with hearings noticed for Oct. 1, 2015; the record shows the court’s sanctions order dated Oct. 5, 2015, the day the case was reinstated.
- Wiekhorst moved in Jan. 2016 to vacate the sanctions order; the district court denied that motion in Feb. 2016. The court later entered final judgment against Wiekhorst after a bench trial on April 20, 2016.
- Wiekhorst appealed from the final judgment and assigned error to the denial of his motion to vacate the sanctions order, arguing he lacked timely notice and was denied procedural due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Oct. 2015 sanctions order and the Feb. 2016 denial of motion to vacate were final and appealable | Wiekhorst contends the sanctions decision was a final, appealable order that should have been appealed sooner | Ginger Cove argues the sanctions and the denial were interlocutory and reviewable on appeal from final judgment | Court: Both orders were interlocutory (not final); appeal from final judgment provides jurisdiction to review them |
| Whether the Feb. 2016 order affected a substantial right | Wiekhorst: denial of vacatur irreparably undermined his defenses/counterclaim | Ginger Cove: the sanction that struck the counterclaim occurred in Oct. 2015; Feb. order left parties’ posture unchanged | Court: Feb. order did not affect a substantial right because the counterclaim was already eliminated by the Oct. sanction |
| Whether Wiekhorst received constitutionally adequate notice of hearings | Wiekhorst: transcript shows no proof of timely notice after dismissal; due process violated | Ginger Cove: court record and sanction order state proper notice was given | Court: Appellant failed to provide evidence to rebut the trial court’s journal entry that notice was given; record does not show otherwise |
| Whether the appellate record sufficiently supports the assigned error | Wiekhorst: relies on transcript and bill of exceptions arguing lack of notice | Ginger Cove: trial court’s authenticated journal entry controls absent contrary proof | Court: Wiekhorst failed to provide hearings/transcripts or other evidence contradicting the journal entry; affirm denial of vacatur |
Key Cases Cited
- Deines v. Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (Neb. 2016) (defining when an order is final for appeal and what constitutes affecting a substantial right)
- Furstenfeld v. Pepin, 287 Neb. 12, 840 N.W.2d 862 (Neb. 2013) (discovery orders generally not subject to interlocutory appeal)
- Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906 (Neb. 2016) (order that does not dispose of the whole merits is not final)
- State v. Deckard, 272 Neb. 410, 722 N.W.2d 55 (Neb. 2006) (journal entries in authenticated trial records carry presumption of verity)
- Pierce v. Landmark Mgmt. Group, 293 Neb. 890, 880 N.W.2d 885 (Neb. 2016) (appellant must present a record supporting assigned errors; absent record, appellate court will affirm)