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Priesner v. Starry

Supreme Court of Nebraska

May 25, 2018

KENNETH D. PRIESNER AND LAURIE WRAGE PRIESNER. APPELLANTS,
v.
JIM L. STARRY AND BAYVIEW TOWNHOUSES, APPELLEES.

         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. Receivers: Judgments: Appeal and Error. An order giving directions to a receiver will not be disturbed on review in the absence of an abuse of discretion.

         3. Appeal and Error. An appellate court considers only arguments that are both specifically assigned and specifically argued in the appellate brief.

         4. Jurisdiction: Final Orders: Time: Appeal and Error. A notice of appeal must be filed with 30 days of the entry of a final order or judgment.

         5. Final Orders: Appeal and Error. Any issue decided in a prior final order that neither party timely appealed from is foreclosed from review in an appeal from a subsequent final order or final judgment in the case.

         6. Jurisdiction: Time: Appeal and Error. A party's failure to timely appeal from a final order prevents an appellate court from exercising jurisdiction over the issues that were raised and decided in that order.

         7. Receivers: Final Orders: Legislature: Jurisdiction: Appeal and Error. The Legislature has mandated by the plain language of Neb. Rev. Stat. § 25-1090 (Reissue 2016) that orders placing property into receivership, giving directions relating to the receiver's powers over the property, and disposing of receivership property are final for purposes of appellate jurisdiction under Neb. Rev. Stat. §§ 25-1911 and 25-1912 (Reissue 2016).

         8. Final Orders: Appeal and Error. There is no "second bite at the apple" when it comes to an appellant's opportunity to appeal a final order.

         [300 Neb. 82] 9. Receivers: Words and Phrases. A receiver is "the arm of the court."

         10. Receivers: Judgments: Appeal and Error. If the court has not abused its discretion in the giving of the directions to the receiver, an appellate court will not disturb actions by the receiver that were in conformity with those directions.

          Appeal from the District Court for Keith County: Donald E. Rowlwlands, Judge.

          Jeffrey S. Armour, of Armour Law, P.C., L.L.O., for appellants.

          Gary F. Burke, of Law Office of Gary F. Burke, L.L.C., for appellee

          Jim L. Starry. H eavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Harder and Noakes, District Judges.

          Harder, District Judge.

         NATURE OF CASE

         This case involves protracted litigation by the minority owners of a condominium against the majority owner, who repeatedly failed to comply with the declaration of covenants, conditions, and restrictions. The court eventually appointed a receiver to sell the condominium at a public sale after determining that the co-owners would "never be able to work together." The condominium was offered at a public sale. The plaintiffs appeal from the court's subsequent order confirming the sale.

         BACKGROUND

         Kenneth D. Priesner and Laurie Wrage Priesner own one of four condominium units in the Bayview Townhouses, a condominium. They purchased the unit in 1983, when the condominium was built, and they have lived there since.

         Jim L. Starry purchased the remaining three units and a detached garage in 1994 and 1995. He lives in Colorado and rents the units out.

         [300 Neb. 83] The Priesners and Starry are members of the Bayview Townhouse Association (Association). The condominium is governed by a "Declaration of Covenants, Conditions and Restrictions of Bayview Townhouses" (Declaration).

         Under the Declaration, Starry had control over the Association as the majority owner. Since Starry obtained his majority ownership in 1995, the Association ceased having meetings, collecting assessments, and maintaining the common elements of the condominium.

         In 2013, the Priesners filed a complaint against Starry and the Association for damages and specific performance. The action concerned conversion of Association and insurance funds, failure to maintain proper insurance, and Starry's negligent repair of the condominium roof in 1997, which eventually resulted in the need to replace the roof and siding.

         On February 24, 2014, the court awarded the Priesners compensation for interior damage to the Priesners' unit resulting from Starry's negligent repair of the roof, as well as the Priesners' share of insurance proceeds that Starry had received but never utilized for repairs. The court ordered a lien on Starry's units in the amount of damages awarded. The court ordered specific performance against Starry to purchase blanket property and liability insurance, hold an association meeting, elect a board of directors, and prepare an annual budget that would include the removal and replacement of the roof and siding.

         The court then set forth:

In the event the parties are unable to reach an agreement on any of the requirements set forth in this paragraph, or for the payment of the costs associated herewith, either party may apply to this Court for the appointment of a receiver to manage the condominium . . . and/or to sell the condominium . . . at public sale.

         The 2014 judgment was affirmed as modified by the Nebraska Court of Appeals in an unpublished memorandum opinion filed February 25, 2015, in case No. A-14-330. The [300 Neb. 84] Court of Appeals held that the district court had erred in not awarding to the Priesners the portion of the converted insurance proceeds attributable to damage to the Priesners' shed. It found no reversible error in the court's order of specific performance that determined the Priesners would share the costs for replacing the roof and siding in proportion to their unit interest. The Court of Appeals noted in this regard that the Priesners had, like Starry, failed to request meetings, notify the Association of necessary repairs or upkeep, or paid any Association dues.

         After the 2014 judgment, the Priesners eventually began acting as a quorum pursuant to their rights under the Declaration when Starry repeatedly failed to call for or attend Association meetings. By October 2015, the Association had apparently filed liens against Starry's units for Starry's share of special assessments to repair and replace the roof and siding of the condominium.

         But the Association did not foreclose on these liens pursuant to Neb. Rev. Stat. § 76-874 (Cum. Supp. 2016). Instead, in October 2015, the Priesners filed an application for injunc-tive relief, under the same docket number as the 2014 judgment. Starry had apparently satisfied the damages portion of the judgment. The Priesners alleged, however, that Starry had failed to comply with the order of specific performance. The Priesners asked that Starry be enjoined from acting on behalf of the Association or conducting construction work on the exterior of the condominium, alleging that Starry had unilaterally arranged for unqualified workers to replace the siding and the roof.

         The court granted the Priesners a temporary injunction and restraining order during the pendency of their application for injunctive relief.

         In response, Starry filed an application for the appointment of a receiver, noting that he was temporarily enjoined from holding Association meetings or acting for the benefit of the condominium. The court initially denied the motion until it [300 Neb. 85] was able to conduct a hearing on the Priesners' contempt allegation. At the hearing, Starry renewed his motion to appoint a receiver, explaining that he wished to resolve the dispute between the parties by selling the condominium.

         MARCH 14, 2016, ORDER TO SELL ALL UNITS AND COMMON AREAS

         In a journal entry file stamped March 14, 2016, the court found that Starry was not in contempt of the 2014 judgment and "sustain[ed] [Starry's] oral motion to appoint a [r]eceiver to sell all of the units and common areas" of the condominium. The court found that the parties would "never be able to work together" to operate the Association for their mutual benefit. The court set a hearing for April 4 to determine who should be appointed as receiver.

         The receiver was selected by the court, and a journal entry was filed on July 13, 2016, stating that the receiver was appointed. A detailed "Order Appointing Receiver" was issued on July 14, the same day the receiver executed his oath. An amended order appointing ...


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