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Ginger Cove Common Area Co. v. Wiekhorst

Supreme Court of Nebraska

April 14, 2017

Ginger Cove Common Area Company, appellee.
v.
Scott Wiekhorst, appellant.

         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 appellate 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.

         [296 Neb. 417] 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, PC, L.L.O., for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, 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 assessments. The transcript does not show that the other two individuals 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]

         [296 Neb. 418] 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 sanctions and set a hearing for ...

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