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

Ginger Cove sued Scott Wiekhorst for unpaid annual assessments; two co-defendants apparently were not served and the claims against them lapsed.
Wiekhorst filed counterclaims alleging Ginger Cove breached fiduciary duties.
Procedural history: case dismissed for lack of prosecution (9/29/2015); Ginger Cove moved to reinstate and for discovery sanctions (motions showed an October 1 hearing); court reinstated and entered a sanctions order striking Wiekhorst’s counterclaim (signed 10/5/2015); case later dismissed and reinstated again; Wiekhorst moved (1/14/2016) to vacate the sanctions; court denied the motion (2/19/2016); bench trial resulted in judgment against Wiekhorst (4/20/2016); Wiekhorst appealed (5/20/2016).
Wiekhorst assigned error to the district court’s denial of his motion to vacate sanctions, arguing he lacked timely notice of the reinstatement and sanction hearing and thus was denied procedural due process.
The trial record lacked transcripts or a bill of exceptions for the pertinent hearings; the sanctions order stated on its face that proper notice was given.

Issue	Plaintiff's Argument (Ginger Cove)	Defendant's Argument (Wiekhorst)	Held
Whether the February 2016 order denying Wiekhorst’s motion to vacate the sanctions was a final appealable order	The sanctions and related orders were interlocutory; appeal from final judgment is proper	The February order was final and should have been appealed within 30 days	The February 2016 order was not final; appeal from the later final judgment was timely
Whether the October 2015 sanctions order was final	Discovery sanctions are interlocutory and reviewable on appeal from final judgment	The sanctions order eliminated Wiekhorst’s counterclaim and was final	The October 2015 sanctions order was interlocutory and not a final order
Whether Wiekhorst received constitutionally adequate notice of the reinstatement and sanction hearing	The sanctions order expressly states proper notice was given; record control presumes journal entries correct absent contrary proof	Wiekhorst contends the transcript shows no timely notice and the hearing occurred while case was dismissed	Court presumed the journal entry’s verity; Wiekhorst failed to produce contrary evidence in the record, so denial of vacatur was affirmed
Whether the appellate record sufficed to review denial of the motion to vacate	N/A	N/A — appellant must supply record/bill of exceptions	Wiekhorst failed to provide a bill of exceptions or other record proof; appellate court affirms on that basis

Deines v. Essex Corp., 293 Neb. 577 (final-order/interlocutory appeal standards)
Furstenfeld v. Pepin, 287 Neb. 12 (discovery orders generally not appealable interlocutorily)
Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943 (what constitutes a final order under § 25-1902)
State v. Deckard, 272 Neb. 410 (journal entries in authenticated records import absolute verity)
Pierce v. Landmark Mgmt. Group, 293 Neb. 890 (appellant’s duty to present record supporting assigned errors)