McGill Restoration v. Lion Place Condo. Assn. , 313 Neb. 658 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/03/2023 09:05 AM CST
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MCGILL RESTORATION V. LION PLACE CONDO. ASSN.
Cite as 313 Neb. 658McGill Restoration, Inc., a Nebraska corporation,
appellee, v. Lion Place Condominium Association,
an unincorporated association, appellee,
and Michael L. Henery, interested
party, appellant.
___ N.W.2d ___
Filed March 3, 2023. Nos. S-21-934, S-22-137.
1. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
2. Statutes. Statutory interpretation presents a question of law.
3. Jurisdiction: Appeal and Error. As a general matter, after an appeal
has been perfected, the trial court is without jurisdiction to hear a case
involving the same matter between the same parties.
4. Judgments: Jurisdiction. A court action taken without subject matter
jurisdiction is void.
5. Judgments: Final Orders: Jurisdiction: Appeal and Error. A void
order is a nullity which cannot constitute a judgment or final order that
confers jurisdiction on an appellate court.
6. Judgments: Jurisdiction: Appeal and Error. An appellate court has
the power to determine it lacks jurisdiction over an appeal because the
lower court lacked jurisdiction to enter the order; to vacate a void order;
and, if necessary, to remand the cause with appropriate directions.
Appeals from the District Court for Douglas County: Peter
C. Bataillon, Judge. Judgment in No. S-21-934 reversed and
remanded with directions. Judgment in No. S-22-137 vacated
and dismissed.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for
appellant.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MCGILL RESTORATION V. LION PLACE CONDO. ASSN.
Cite as 313 Neb. 658Cody B. Nickel and Brian J. Koenig, of Koley Jessen, P.C.,
L.L.O., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ., and Marroquin, District Judge.
Papik, J.
Several years ago, McGill Restoration, Inc. (McGill),
obtained a breach of contract judgment against Lion Place
Condominium Association (the Association). In an effort to
collect on that judgment, McGill and its successor-in-interest
sought and obtained two writs of execution, both of which
directed the county sheriff to levy execution against a con-
dominium unit owned by one of the Association’s members,
Michael L. Henery. The district court overruled motions to
quash those writs filed by Henery, and he filed two appeals,
both of which we address in this consolidated opinion. In
Henery’s first appeal, we conclude that the district court should
have sustained his motion to quash and therefore reverse the
order overruling his motion to quash and remand the cause
with directions to sustain the motion to quash. Additionally,
we find that Henery’s first appeal divested the district court
of jurisdiction over subsequent proceedings. Accordingly, we
vacate the second writ of execution and dismiss his sec-
ond appeal.
BACKGROUND
The Judgment.
In 2009, the Association hired McGill to perform repair
work on a condominium building, the individual units of
which were owned by members of the Association. After
McGill completed its work, a dispute arose between the par-
ties. The Association was not satisfied with McGill’s work,
while McGill claimed that the Association failed to pay McGill
all that it was owed. The parties resorted to litigation, with
McGill suing the Association and the Association asserting
counterclaims against McGill. Following a bench trial, the
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MCGILL RESTORATION V. LION PLACE CONDO. ASSN.
Cite as 313 Neb. 658district court ruled for McGill and dismissed the Association’s
counterclaims. The district court entered judgment in favor of
McGill in the amount of $25,000 plus prejudgment interest.
We affirmed that judgment on appeal. See McGill Restoration
v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d
251 (2021). The appeals we take up in this opinion concern
McGill’s efforts to collect on that judgment.
First Writ of Execution.
The judgment collection efforts at issue began with a prae-
cipe for a writ of execution McGill filed in August 2021. The
praecipe sought a writ directing the county sheriff to levy
execution upon “Unit 201” of the Association pursuant to Neb.
Rev. Stat. § 76-875(a) (Reissue 2018), which provides that “a
judgment for money against [a condominium] association . . .
is a lien in favor of the judgment lienholder against all of the
units in the condominium.” The writ of execution issued.
Henery filed a motion to quash the writ of execution. In his
motion, Henery contended that the writ of execution should
be quashed for several reasons. Among his arguments was
a contention that McGill could not levy execution against
Unit 201, because the judgment was entered against the
Association, but he owned the unit. He acknowledged that
under § 76-875(a), McGill had a lien against each of the units
of the Association, but he asserted that if McGill wished to
enforce that lien, it needed to initiate foreclosure proceedings
rather than pursue execution. At a hearing on the motion to
quash, Henery offered an affidavit in which he asserted that
he owned Unit 201.
The district court overruled McGill’s motion to quash. In
November 2021, Henery timely appealed the overruling of
his motion to quash, and that appeal was docketed as case
No. S-21-934.
Second Writ of Execution.
In December 2021, McGill filed another praecipe for a
writ of execution. In that praecipe, McGill sought a writ
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MCGILL RESTORATION V. LION PLACE CONDO. ASSN.
Cite as 313 Neb. 658of execution directing the county sheriff to levy execution
against not just Unit 201, but also several other condominium
units owned by members of the Association. The praecipe
again sought the writ of execution pursuant to § 76-875(a).
After the issuance of the writ of execution, McGill assigned
its right to the judgment against the Association to another
entity. For ease of discussion, however, we will refer to McGill
and its successor-in-interest collectively as McGill.
Henery again moved to quash the writ of execution, and the
district court again overruled his motion. Henery appealed the
overruling of his motion to quash, and that appeal was dock-
eted as case No. S-22-137.
ASSIGNMENTS OF ERROR
Henery assigns and argues that, for a number of reasons,
the district court erred by overruling his motions to quash.
To resolve these appeals, we need mention only one of those
assignments of error, which we rephrase slightly: that the dis-
trict court erred by failing to quash a writ of execution ordering
the sheriff to levy execution against property not owned by the
judgment debtor.
STANDARD OF REVIEW
[1] An appellate court independently reviews questions of
law decided by a lower court. Lassalle v. State, 307 Neb. 221,
948 N.W.2d 725 (2020).
[2] Statutory interpretation presents a question of law. State
v. Godek, 312 Neb. 1004, 981 N.W.2d 810 (2022).
ANALYSIS
Henery’s First Appeal.
We begin our analysis with Henery’s first appeal, which
challenges the district court’s overruling of his first motion to
quash. We have appellate jurisdiction of that order, because it
is an order that affects a substantial right made on summary
application in an action after a judgment is rendered. See
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MCGILL RESTORATION V. LION PLACE CONDO. ASSN.
Cite as 313 Neb. 658Western Ethanol Co. v. Midwest Renewable Energy, 305 Neb.
1, 938 N.W.2d 329 (2020). See, also, Neb. Rev. Stat. § 25-1902(Cum. Supp. 2022).
As for the merits of this appeal, Henery argues, as noted
above, that his motion to quash should have been granted
because the writ of execution at issue authorized the county
sheriff to levy execution on Unit 201. Henery contends that
execution can be levied only on property that the judgment
debtor owns, that he owns Unit 201, and that he is not the
judgment debtor.
We agree with Henery that, with the exception of a circum-
stance not present here, Nebraska law does not authorize a
court to order a sheriff to levy a writ of execution on property
in which the judgment debtor does not hold an interest. As we
will explain, this principle is established in both the statutes
governing execution and our precedent.
Beginning with the execution statutes, Neb. Rev. Stat.
§ 25-1502 (Reissue 2016) provides, “Executions are of two
kinds: (1) Against the property of the judgment debtor, and (2)
for delivery of the possession of real property with damages
for withholding the same and costs.” No mention is made of
execution against property owned by persons other than the
judgment debtor.
In addition, Neb. Rev. Stat. § 25-1516(1) (Reissue 2016)
discusses writs of execution and provides that a judgment cred-
itor can obtain a writ of execution to levy on only the judgment
debtor’s personal or real property interests:
The writ of execution against the property of the debtor
issuing from any court of record of this state shall com-
mand the officer to whom it is directed that of the goods
and chattels of the debtor he or she cause to be made the
money specified in the writ, and for want of goods and
chattels he or she cause the same to be made of the lands
and tenements of the debtor.
(Emphasis supplied.)
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MCGILL RESTORATION V. LION PLACE CONDO. ASSN.
Cite as 313 Neb. 658Consistent with § 25-1516(1), Neb. Rev. Stat. § 25-1518(Reissue 2016) directs an officer receiving a writ of execu-
tion to execute against either the judgment debtor’s per-
sonal property or, failing that, the judgment debtor’s available
real property:
The officer to whom a writ of execution is delivered
shall proceed immediately to levy the same upon the
goods and chattels of the debtor; but if no goods and chat-
tels can be found, the officer shall endorse on the writ of
execution no goods, and forthwith levy the writ of execu-
tion upon the lands and tenements of the debtor, which
may be liable to satisfy the judgment.
(Emphasis supplied.)
We relied on these statutes in Fox v. Whitbeck, 286 Neb.
134, 835 N.W.2d 638 (2013), to hold that generally, a court
lacks the authority to order the sheriff to levy execution on
property in which the judgment debtor does not hold an inter-
est. In that case, a father failed to pay court-ordered child sup-
port and therefore a statutory lien attached to the father’s real
property. The mother then sought an execution sale of property
the father had previously owned but that had since been trans-
ferred to a third party. The third party unsuccessfully objected
to confirmation of the execution sale. On appeal, however, we
explained that while the mother was correct that a statutory
lien attached to the father’s property and that the third-party
purchaser took the property subject to that lien, execution
was available only if the mother showed that the father “still
had an interest in the property or that he had fraudulently
transferred it.” Id. at 140, 835 N.W.2d at 643. Because the
father no longer had an interest in the property and there was
no allegation of a fraudulent transfer, we reversed the district
court’s order and remanded the cause with directions to vacate
its order confirming the execution sale.
McGill makes no argument in this case that judgment
was entered against Henery personally or that the Association
holds an interest in Unit 201. Neither is there any suggestion
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313 Nebraska Reports
MCGILL RESTORATION V. LION PLACE CONDO. ASSN.
Cite as 313 Neb. 658of a fraudulent transfer. Instead, McGill’s argument that the
district court could order an execution sale of Unit 201 not-
withstanding Henery’s ownership thereof is premised entirely
on § 76-875(a). Relevant here, that statute provides that a
judgment for money against a condominium association “is
not a lien on the common elements, but is a lien in favor of
the judgment lienholder against all of the units in the condo-
minium at the time the judgment was entered.” § 76-875(a).
This language, McGill contends, extends a judgment lien
against a condominium association so that it applies to each
of the individual units of the association, and thus the statute
allows a judgment creditor to properly execute on those indi-
vidual units.
McGill’s argument requires that we interpret § 76-875(a). In
doing so, our focus is, as always, identifying the plain and ordi-
nary meaning of the statutory language, understood in context,
and then giving effect to that meaning. See In re Guardianship
of Eliza W., 304 Neb. 995, 938 N.W.2d 307 (2020).
We do not read the text of § 76-875(a) to provide that a
party who obtains a judgment for money against a condo-
minium association is entitled to execute against any of the
units in the condominium. There is no language in that statute
providing that execution may be levied against individual units
nor is there language providing that the owners of individual
units are to be treated as the judgment debtor for execution
purposes. While § 76-875(a) certainly provides that a judgment
against a condominium association will result in a lien against
each of its units, our decision in Fox, supra, makes clear that
the fact that a statutory lien attaches to property does not
mean that the judgment creditor is entitled to execute against
that property.
Because we understand § 76-875(a) to result in nothing
beyond a lien against the individual units and the Association
held no interest in Unit 201, it follows that McGill was not
entitled to execute against Unit 201. As we have discussed, the
execution statutes permit a court to order a sheriff to levy a
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MCGILL RESTORATION V. LION PLACE CONDO. ASSN.
Cite as 313 Neb. 658writ of execution on property only if the judgment debtor has
an interest in the property or fraudulently transferred it. We
could find that McGill was entitled to execute against the unit
owned by Henery only by reading additional meaning into the
execution statutes or § 76-875(a). That is not, however, how
we interpret statutes. See, e.g., Parks v. Hy-Vee, 307 Neb. 927,
951 N.W.2d 504 (2020).
Because we find that the district court was not authorized to
order execution on Unit 201 as McGill requested, we reverse
the order overruling the motion to quash and remand the cause
with directions for the district court to sustain the motion
to quash.
Henery’s Second Appeal.
Henery’s second appeal challenges the district court’s over-
ruling of his motion to quash the writ of execution McGill
requested in December 2021. Because this writ of execution
was requested after Henery filed his first appeal in November
2021, it presents a jurisdictional issue that we must confront
before considering the merits of Henery’s appeal. See Keef
v. State, 262 Neb. 622, 626, 634 N.W.2d 751, 756 (2001)
(“[b]efore reaching the legal issues presented for review, it is
the duty of an appellate court to determine whether it has juris-
diction over the matter before it”).
[3] As a general matter, after an appeal has been perfected,
the trial court is without jurisdiction to hear a case involv-
ing the same matter between the same parties. McLaughlin
v. Hellbusch, 251 Neb. 389, 557 N.W.2d 657 (1997). Here,
Henery perfected his appeal of the district court’s order over-
ruling his first motion to quash in November 2021. We must
therefore determine if the district court was divested of subject
matter jurisdiction during the pendency of that appeal.
While the filing of an appeal generally divests a lower
court of subject matter jurisdiction during the pendency of an
appeal, an appeal will not always preclude a court from enforc-
ing a judgment. When a party has obtained a judgment and
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MCGILL RESTORATION V. LION PLACE CONDO. ASSN.
Cite as 313 Neb. 658a supersedeas bond has not been filed, the court retains juris-
diction to enforce the terms of the judgment even if an appeal
has been filed. See, e.g., Kula v. Kula, 180 Neb. 893, 146
N.W.2d 384 (1966); Kricsfeld v. Kricsfeld, 8 Neb. App. 1, 588
N.W.2d 210 (1999).
In this case, however, McGill did not ask the district court
to enforce the terms of a nonsuperseded judgment while the
merits of that judgment were being challenged on appeal.
Instead, McGill sought and obtained the issuance of a writ of
execution that ordered the sheriff to levy execution against
Unit 201 while an appeal was pending in which Henery sought
to challenge the district court’s earlier overruling of a motion
to quash a writ of execution that did the same. The proceedings
following Henery’s first appeal thus fall within the general rule
that during the pendency of an appeal, the trial court is without
jurisdiction to hear a case involving the same matter between
the same parties. The district court lacked subject matter juris-
diction of all proceedings concerning the writ of execution
McGill requested in December 2021.
[4,5] Because the district court lacked jurisdiction of
proceedings concerning the writ of execution requested in
December 2021, it follows that we too lack jurisdiction of
Henery’s second appeal. A court action taken without subject
matter jurisdiction is void. In re Interest of Trey H., 281 Neb.
760, 798 N.W.2d 607 (2011). And a void order is a nullity
which cannot constitute a judgment or final order that confers
jurisdiction on an appellate court. Id.[6] While we lack jurisdiction to address the merits of a
void order, that does not mean we must allow void orders to
stand. An appellate court has the power to determine it lacks
jurisdiction over an appeal because the lower court lacked
jurisdiction to enter the order; to vacate a void order; and, if
necessary, to remand the cause with appropriate directions.
Id. Because all proceedings concerning the writ of execution
McGill requested in December 2021 were void, we vacate
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313 Nebraska Reports
MCGILL RESTORATION V. LION PLACE CONDO. ASSN.
Cite as 313 Neb. 658that writ of execution and dismiss Henery’s second appeal for
lack of jurisdiction.
CONCLUSION
The district court lacked authority to order the sheriff to
levy execution on Unit 201. Accordingly, we reverse the dis-
trict court’s order overruling Henery’s motion to quash in case
No. S-21-934 and remand the cause with directions to sustain
Henery’s motion to quash. We find that the district court lacked
jurisdiction over proceedings concerning the writ of execution
requested in December 2021 and therefore vacate that writ of
execution and dismiss the appeal in case No. S-22-137.
Judgment in No. S-21-934 reversed
and remanded with directions.
Judgment in No. S-22-137 vacated
and dismissed.
Miller-Lerman, J., not participating.