McGill Restoration v. Lion Place Condo. Assn.
986 N.W.2d 32
Neb.2023Background
- In 2009 McGill Restoration contracted with Lion Place Condominium Association; after litigation the district court entered a money judgment for McGill (affirmed on appeal).
- In August 2021 McGill sought a writ of execution under Neb. Rev. Stat. § 76-875(a) directing levy on Unit 201 of the condominium.
- Michael Henery, who asserted he owned Unit 201 (and was not the judgment debtor), moved to quash the writ; the district court overruled the motion and Henery appealed (No. S-21-934).
- While that appeal was pending, in December 2021 McGill sought a second writ to levy on Unit 201 and other units; the district court again overruled Henery’s motion to quash and he appealed (No. S-22-137).
- The core dispute: whether a judgment against a condominium association permits execution sale of individual units owned by non-debtor unit owners, and whether the trial court had jurisdiction to issue the second writ while the first appeal was pending.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a writ of execution may be levied on a condominium unit owned by a non-debtor under § 76-875(a) | McGill: § 76-875(a) creates a lien on each unit and thus authorizes execution against individual units. | Henery: Execution may be levied only on property in which the judgment debtor holds an interest; he owns Unit 201 and is not the debtor. | Reversed district court; writ quashing required. § 76-875 creates a lien but does not authorize execution against units owned by non-debtors absent a debtor interest or fraudulent transfer. |
| Whether the trial court had jurisdiction to issue a second writ after Henery perfected his first appeal | McGill: The court retained power to enforce the judgment and could issue writs to collect. | Henery: Filing the first appeal divested the trial court of jurisdiction over the same matter; the second writ issued during the appeal is void. | Second writ vacated and appeal dismissed. The first appeal divested the trial court of jurisdiction to issue the December 2021 writ; orders entered thereafter were void. |
Key Cases Cited
- Fox v. Whitbeck, 286 Neb. 134, 835 N.W.2d 638 (2013) (execution is generally limited to property in which the judgment debtor retains an interest)
- McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021) (prior appeal affirming the underlying judgment for McGill)
- In re Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607 (2011) (void orders are nullities; appellate courts may vacate void lower-court orders)
- McLaughlin v. Hellbusch, 251 Neb. 389, 557 N.W.2d 657 (1997) (filing an appeal generally divests the trial court of jurisdiction over the same matter)
- Kula v. Kula, 180 Neb. 893, 146 N.W.2d 384 (1966) (trial court may enforce a nonsuperseded judgment during the pendency of an appeal)