Ginger Cove Common Area Co. v. Wiekhorst, 296 Neb. 416

Background

Ginger Cove sued Scott Wiekhorst for unpaid assessments; two co-defendants appear dismissed for lack of service.
Wiekhorst filed a counterclaim alleging breach of fiduciary duty; the court later struck his counterclaim as a discovery sanction.
Timeline: case dismissed for lack of prosecution 9/29/2015; Ginger Cove moved to reinstate and for sanctions with hearings listed as 10/1/2015; court entered a sanctions order (striking counterclaim) dated 10/5/2015; Wiekhorst moved 1/14/2016 to vacate the sanctions; court denied that motion 2/19/2016; final judgment against Wiekhorst entered 4/20/2016.
Wiekhorst appealed the denial of his motion to vacate (and claimed denial of procedural due process for lack of notice of the reinstatement/sanctions hearings).
The Supreme Court considered whether it had jurisdiction to review the earlier orders and whether the record supported Wiekhorst’s notice/due process claim; it affirmed for lack of a supporting record from the appellant.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has jurisdiction to review the Feb. 2016 order denying vacatur of sanctions	Wiekhorst contends the Feb. 2016 order should be reviewed on appeal from final judgment	Ginger Cove contends the Feb. 2016 (and Oct. 2015 sanctions) orders were final and required timely separate appeals	The Oct. 2015 sanctions order and the Feb. 2016 denial were interlocutory and not final; review may proceed on appeal from the final judgment
Whether the Oct. 2015 sanctions order was a final, appealable order	Wiekhorst implies timing and lack of notice render the sanctions voidable and appealable	Ginger Cove argues the sanction order was final and eliminated Wiekhorst’s counterclaim, requiring prompt appeal	Court held the Oct. 2015 order was a discovery sanction and interlocutory (not within §25-1902 final-order categories) and thus reviewable after final judgment
Whether the Feb. 2016 order denying vacatur affected a substantial right	Wiekhorst argues denial of vacatur irreparably harmed his rights by leaving sanctions in place	Ginger Cove argues the Feb. 2016 order did not change the parties’ posture beyond the earlier sanction	Court held the Feb. 2016 order did not affect a substantial right because the counterclaim was already eliminated by the earlier interlocutory sanction
Whether Wiekhorst proved lack of notice/procedural due process to vacate the sanctions	Wiekhorst argues transcript shows no timely notice of reinstatement or sanctions hearing while case was dismissed	Ginger Cove points to the court’s sanctions order reciting that proper notice was given and that counsel for Ginger Cove appeared and no other counsel was present	Court held appellant failed to produce contrary evidence (bill of exceptions/transcript lacked the relevant hearings); the trial court’s journal entry imports verity, so denial of vacatur is affirmed

Key Cases Cited

Guardian Tax Partners v. Skrupa Invest. Co., 295 Neb. 639 (addresses jurisdictional questions and final-order analysis)
Obad v. State, 277 Neb. 866 (standard of review for motions to vacate)
Deines v. Essex Corp., 293 Neb. 577 (definition and examples of final orders affecting substantial rights)
In re Adoption of Madysen S. et al., 293 Neb. 646 (final-judgment jurisdiction principles)
Big John’s Billiards v. State, 283 Neb. 496 (policy against piecemeal appeals; final-order requirement)
Furstenfeld v. Pepin, 287 Neb. 12 (discovery orders generally not appealable interlocutory rulings)
Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943 (when an order does or does not dispose of merits for finality)
State v. Deckard, 272 Neb. 410 (journal entries and rendition concepts)
Alder v. First Nat. Bank & Trust Co., 241 Neb. 873 (journal entry verity; burden to present contrary record)
Pierce v. Landmark Mgmt. Group, 293 Neb. 890 (appellate requirement that appellant supply record supporting assigned errors)