KENNETH D. PRIESNER AND LAURIE WRAGE PRIESNER. APPELLANTS,
JIM L. STARRY AND BAYVIEW TOWNHOUSES, APPELLEES.
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.
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.
Appeal and Error. An appellate court considers only arguments
that are both specifically assigned and specifically argued
in the appellate brief.
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.
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.
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.
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).
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.
Neb. 82] 9. Receivers: Words and Phrases. A receiver is
"the arm of the court."
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.
from the District Court for Keith County: Donald E.
Jeffrey S. Armour, of Armour Law, P.C., L.L.O., for
F. Burke, of Law Office of Gary F. Burke, L.L.C., for
Starry. H eavican, C.J., Miller-Lerman, Cassel, Stacy, and
Funke, JJ., and Harder and Noakes, District Judges.
Harder, District Judge.
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.
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.
Starry purchased the remaining three units and a detached
garage in 1994 and 1995. He lives in Colorado and rents the
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).
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.
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
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.
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.
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.
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.
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.
court granted the Priesners a temporary injunction and
restraining order during the pendency of their application
for injunctive relief.
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
14, 2016, ORDER TO SELL ALL UNITS AND COMMON AREAS
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.
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 ...