Ginger Cove Common Area Co. v. Wiekhorst , 296 Neb. 416 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    07/07/2017 12:11 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    296 Nebraska R eports
    GINGER COVE COMMON AREA CO. v. WIEKHORST
    Cite as 
    296 Neb. 416
    Ginger Cove Common A rea Company, appellee,
    v. Scott Wiekhorst, appellant.
    ___ N.W.2d ___
    Filed April 14, 2017.    No. S-16-515.
    1.	 Jurisdiction: Appeal and Error. A jurisdictional question which does
    not involve a factual dispute is determined by an appellate court as a
    matter of law.
    2.	 Motions to Vacate: Appeal and Error. An appellate court reviews a
    ruling on a motion to vacate for abuse of discretion.
    3.	 Jurisdiction: Appeal and Error. Before reaching the legal issues
    presented for review, it is the duty of an appellate court to determine
    whether it has jurisdiction over the matter before it.
    4.	 Jurisdiction: Final Orders: Appeal and Error. For an appellate court
    to acquire jurisdiction over an appeal, there must be a final order or final
    judgment entered by the court from which the appeal is taken.
    5.	 Final Orders: Appeal and Error. The primary reason for requiring a
    final order to dispose of all the issues presented in an action is to avoid
    piecemeal appeals arising out of the same operative facts.
    6.	 Final Orders. An order is final for purposes of appeal under Neb. Rev.
    Stat. § 25-1902 (Reissue 2016) if it affects a substantial right and (1)
    determines the action and prevents a judgment, (2) is made during a
    special proceeding, or (3) is made on summary application in an action
    after judgment is rendered.
    7.	 Final Orders: Appeal and Error. An order affects a substantial right if
    it affects the subject matter of the litigation, such as diminishing a claim
    or defense that was available to the appellant prior to the order from
    which he or she is appealing.
    8.	 ____: ____. An order affects a substantial right when the right would
    be significantly undermined or irrevocably lost by postponing appel-
    late review.
    9.	 Pretrial Procedure: Final Orders: Appeal and Error. Discovery orders
    are not generally subject to interlocutory appeal because the underlying
    litigation is ongoing and the discovery order is not considered final.
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    Nebraska Supreme Court A dvance Sheets
    296 Nebraska R eports
    GINGER COVE COMMON AREA CO. v. WIEKHORST
    Cite as 
    296 Neb. 416
    10.	 Records: Proof: Appeal and Error. In appellate proceedings, unless
    there is proof to the contrary, the journal entry in a duly authenticated
    record of the trial court imports absolute verity.
    11.	 Records: Appeal and Error. It is incumbent upon the appellant to
    present a record supporting the errors assigned; absent such a record,
    an appellate court will affirm the lower court’s decision regarding
    those errors.
    Appeal from the District Court for Douglas County: James T.
    Gleason, Judge. Affirmed.
    F. Matthew Aerni, of Berry Law Firm, for appellant.
    Andrew J. Wilson and Lawrence J. Roland, of Gross &
    Welch, P.C., L.L.O., for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Cassel, J.
    INTRODUCTION
    Following a judgment against Scott Wiekhorst for unpaid
    assessments, he appealed to challenge an order entered 2
    months earlier—which overruled his motion to vacate or set
    aside an order of sanctions. Because neither that order nor the
    sanctions order were final orders, Wiekhorst properly waited
    until final judgment to appeal. But because he failed to present
    a record to support his assigned error, we affirm.
    BACKGROUND
    Ginger Cove Common Area Company (Ginger Cove) sued
    Wiekhorst and two other individuals for unpaid annual assess-
    ments. The transcript does not show that the other two indi-
    viduals were served within 6 months from the filing of the
    complaint; thus, it appears that the action against them stood
    dismissed by operation of law.1
    1
    See Neb. Rev. Stat. § 25-217 (Reissue 2016).
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    GINGER COVE COMMON AREA CO. v. WIEKHORST
    Cite as 
    296 Neb. 416
    Wiekhorst filed a counterclaim with his answer. He alleged
    that Ginger Cove violated its fiduciary duty, and he sought
    relief for the alleged violations.
    The following timeline is pertinent:
    • 09/22/2015: Ginger Cove filed a motion for discovery sanc-
    tions and set a hearing for October 1 at 8:30 a.m.
    • 09/29/2015: The district court dismissed the case for lack
    of prosecution.
    • 10/01/2015: At 8:08 a.m., Ginger Cove moved to reinstate the
    case and set the hearing for 8:30 a.m. that same day. The cer-
    tificate of service showed electronic service on Wiekhorst’s
    counsel.
    • 10/05/2015: The court entered an order to reinstate the case.
    • 10/05/2015: Ginger Cove refiled its motion for sanctions. Its
    notice of hearing showed that the hearing was set for October
    1 at 8:30 a.m., and its certificate of service showed that a
    copy of the motion was served on September 17.
    • 10/06/2015: The court entered an order on the motion for
    sanctions. The court found Wiekhorst in contempt and ordered
    that Wiekhorst’s counterclaims be stricken.
    • 10/06/2015: The court entered another order to reinstate
    the case.
    • 10/07/2015: The court again dismissed the case for lack
    of prosecution.
    • 12/10/2015: Ginger Cove filed a motion for an order reinstat-
    ing the case. The motion did not contain a notice of hearing,
    and the attached certificate of service showed that it was
    mailed on October 13.
    • 12/10/2015: The court reinstated the case.
    • 01/14/2016: Wiekhorst moved for an order vacating and set-
    ting aside the sanctions.
    • 02/19/2016: The court denied Wiekhorst’s motion following
    a hearing.
    • 04/20/2016: The court entered judgment against Wiekhorst
    after a bench trial.
    • 05/20/2016: Wiekhorst filed a notice of appeal.
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    GINGER COVE COMMON AREA CO. v. WIEKHORST
    Cite as 
    296 Neb. 416
    ASSIGNMENT OF ERROR
    Wiekhorst alleges that the district court erred in denying his
    motion to vacate the order of sanctions.
    STANDARD OF REVIEW
    [1] A jurisdictional question which does not involve a fac-
    tual dispute is determined by an appellate court as a matter
    of law.2
    [2] An appellate court reviews a ruling on a motion to vacate
    for abuse of discretion.3
    ANALYSIS
    Jurisdiction
    [3-5] Before reaching the legal issues presented for review,
    it is the duty of an appellate court to determine whether it
    has jurisdiction over the matter before it.4 For an appellate
    court to acquire jurisdiction over an appeal, there must be a
    final order or final judgment entered by the court from which
    the appeal is taken.5 The primary reason for requiring a final
    order to dispose of all the issues presented in an action is
    to avoid piecemeal appeals arising out of the same opera-
    tive facts.6
    There is no dispute that Wiekhorst filed a timely appeal
    from the final judgment. But because Wiekhorst’s appeal chal-
    lenges an order entered 2 months earlier, Ginger Cove claims
    that we lack jurisdiction to review that order. The jurisdic-
    tional inquiry concerns whether the February 2016 order was
    a final order. If it was, Wiekhorst’s failure to appeal within
    30 days deprives us of jurisdiction to review that order. If it
    2
    Guardian Tax Partners v. Skrupa Invest. Co., 
    295 Neb. 639
    , 
    889 N.W.2d 825
    (2017).
    3
    Obad v. State, 
    277 Neb. 866
    , 
    766 N.W.2d 89
    (2009).
    4
    See Deines v. Essex Corp., 
    293 Neb. 577
    , 
    879 N.W.2d 30
    (2016).
    5
    In re Adoption of Madysen S. et al., 
    293 Neb. 646
    , 
    879 N.W.2d 34
    (2016).
    6
    Big John’s Billiards v. State, 
    283 Neb. 496
    , 
    811 N.W.2d 205
    (2012).
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    GINGER COVE COMMON AREA CO. v. WIEKHORST
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    296 Neb. 416
    was not final, Wiekhorst properly waited to appeal from the
    final judgment.
    [6-8] An order is final for purposes of appeal under Neb.
    Rev. Stat. § 25-1902 (Reissue 2016) if it affects a substantial
    right and (1) determines the action and prevents a judgment,
    (2) is made during a special proceeding, or (3) is made on sum-
    mary application in an action after judgment is rendered.7 An
    order affects a substantial right if it affects the subject matter of
    the litigation, such as diminishing a claim or defense that was
    available to the appellant prior to the order from which he or
    she is appealing.8 An order affects a substantial right when the
    right would be significantly undermined or irrevocably lost by
    postponing appellate review.9
    [9] The October 2015 order imposing the discovery sanc-
    tion was not a final order. In that order, the district court
    found Wiekhorst in contempt of the court’s prior order com-
    pelling Wiekhorst to respond to Ginger Cove’s discovery
    requests and ordered that Wiekhorst’s counterclaim be stricken
    as a sanction. Discovery orders are not generally subject to
    interlocutory appeal because the underlying litigation is ongo-
    ing and the discovery order is not considered final.10 Further,
    the order does not fit within any of the final order categories
    of § 25-1902. It did not dispose of the whole merits of the
    case and leave nothing for the court’s further consideration.11
    It was not made during a special proceeding. It was not made
    after a judgment was rendered. We conclude that the order
    imposing the sanction was interlocutory—it was a discovery
    ruling that can be adequately reviewed on appeal from the
    final judgment.
    7
    Deines v. Essex Corp., supra note 4.
    8
    See id.
    9
    See 
    id. 10 See
    Furstenfeld v. Pepin, 
    287 Neb. 12
    , 
    840 N.W.2d 862
    (2013).
    11
    See Cattle Nat. Bank & Trust Co. v. Watson, 
    293 Neb. 943
    , 
    880 N.W.2d 906
    (2016).
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    GINGER COVE COMMON AREA CO. v. WIEKHORST
    Cite as 
    296 Neb. 416
    The February 2016 order was not final, because it did
    not affect a substantial right. Ginger Cove claims that the
    order affected the subject matter of the litigation because it
    “completely eliminated a claim or defense that was avail-
    able to [Wiekhorst] prior to the order from which he is now
    appealing.”12 We disagree. It was the interlocutory October
    2015 order that eliminated Wiekhorst’s counterclaim as a sanc-
    tion; the February 2016 order refusing to vacate the sanction
    order therefore did not diminish a claim that was available to
    Wiekhorst before the court entered the order. The February
    2016 order left the parties in the same posture as they were in
    before its entry.
    Because neither the October 2015 order nor the February
    2016 order were final, we have jurisdiction to consider any
    challenges directed to them upon Wiekhorst’s timely appeal
    from the final judgment.
    Merits
    Wiekhorst argues that the district court erred in denying his
    motion to vacate the order of sanctions and that he was denied
    procedural due process. He contends that after the case was
    dismissed on September 29, 2015, he did not receive timely
    notice of the motion to reinstate the case or of the motion
    for sanctions.
    Wiekhorst relies on the transcript to support his claim. He
    asserts that “[t]here is simply nothing on the record demon-
    strating [he] had timely notice of any Motion to Reinstate, nor
    of the Motion for Sanctions filed on October 6[, 2015].”13 The
    transcript shows electronic service on Wiekhorst’s counsel of
    Ginger Cove’s October 1, 2015, motion to reinstate the case.
    According to the motion, the matter was set to be heard 22
    minutes after the motion was filed. It appears that on October
    5, Ginger Cove refiled its September 22 motion for sanctions.
    12
    Brief for appellee at 8.
    13
    Brief for appellant at 6.
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    GINGER COVE COMMON AREA CO. v. WIEKHORST
    Cite as 
    296 Neb. 416
    Thus, both motions showed a hearing date of October 1 at
    8:30 a.m. Wiekhorst’s argument is premised upon an assump-
    tion—that the hearing on Ginger Cove’s motion for sanctions
    actually took place on October 1—after the case had been
    dismissed on September 29 and before it was reinstated on
    October 5.
    But the transcript does not establish when the hearing on
    Ginger Cove’s motion for sanctions actually occurred, nor
    does it definitively establish that notice of hearing was not
    given to Wiekhorst’s counsel. The court’s sanctions order
    shows that the judge dated his signature (i.e., “rendition”14) on
    October 5, 2015—the same date the case was reinstated. The
    transcript does not show that the sanctions order was made
    during the period when the case stood dismissed. And while
    the transcript does not affirmatively establish that notice was
    given, it likewise does not definitely establish that notice was
    not given.
    [10] In appellate proceedings, unless there is proof to the
    contrary, the journal entry in a duly authenticated record of
    the trial court imports absolute verity.15 In the sanctions order,
    the court specifically stated, “The record shall reflect that
    there was proper notice of the hearing on this Motion served
    on all parties and their respective attorneys, and that counsel
    for [Ginger Cove] appeared and no other party or counsel was
    present.” Wiekhorst had the duty to produce evidence to the
    contrary. The transcript did not do so.
    [11] Although we have a bill of exceptions, it does not pro-
    vide the missing “proof to the contrary.”16 It does not contain
    the hearings on the motions to reinstate, the motion for sanc-
    tions, or the motion to vacate the order of sanctions. As a gen-
    eral proposition, it is incumbent upon the appellant to present a
    14
    See Neb. Rev. Stat. § 25-1301(2) (Reissue 2016).
    15
    State v. Deckard, 
    272 Neb. 410
    , 
    722 N.W.2d 55
    (2006); Alder v. First Nat.
    Bank & Trust Co., 
    241 Neb. 873
    , 
    491 N.W.2d 686
    (1992).
    16
    See 
    id. - 423
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    GINGER COVE COMMON AREA CO. v. WIEKHORST
    Cite as 
    296 Neb. 416
    record supporting the errors assigned; absent such a record, an
    appellate court will affirm the lower court’s decision regarding
    those errors.17 Without a bill of exceptions from the pertinent
    hearings, we do not know what arguments were made or if any
    evidence—for example, an affidavit detailing notice provided
    to Wiekhorst’s counsel—was offered. Because we have no
    bill of exceptions from those hearings, the “absolute verity”18
    conferred upon the district court’s order dictates the outcome
    of this appeal.
    CONCLUSION
    Because Wiekhorst failed to present a record to support his
    assigned error, we affirm the district court’s order overruling
    Wiekhorst’s motion to vacate or set aside its order impos-
    ing sanctions.
    A ffirmed.
    17
    Pierce v. Landmark Mgmt. Group, 
    293 Neb. 890
    , 
    880 N.W.2d 885
    (2016).
    18
    See cases cited supra note 15.