- 416 -

Nebraska Supreme Court Advance S

296 Nebraska Report

GINGER COVE COMMON AREA CO. v. WIEKHORST

Cite as 296 Neb. 416

Ginger Cove Common Area Company, appel

v. Scott Wiekhorst, appella

___ 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 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/30/2017 01:12 AM CDT
- 417 -

Nebraska Supreme Court Advance S

296 Nebraska Report

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

Kelch, and Funke, 

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

1 See Neb. Rev. Stat. § 25-217 (Reissue 2016).
- 418 -

Nebraska Supreme Court Advance S

296 Nebraska Report

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 sanctions 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 certificate 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 reinstating 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 setting 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.
- 419 -

Nebraska Supreme Court Advance S

296 Nebraska Report

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 factual 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

Jurisdicti

[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 operative facts.6

There is no dispute that Wiekhorst filed a timely appeal 

from the final judgment. But because Wiekhorst’s appeal challenges an order entered 2 months earlier, Ginger Cove claims 

that we lack jurisdiction to review that order. The jurisdictional 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).
- 420 -

Nebraska Supreme Court Advance S

296 Nebraska Report

GINGER COVE COMMON AREA CO. v. WIEKHORST

Cite as 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 summary 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 sanction was not a final order. In that order, the district court 

found Wiekhorst in contempt of the court’s prior order compelling 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 ongoing 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).
- 421 -

Nebraska Supreme Court Advance S

296 Nebraska Report

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 available 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 sanction; 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.

Merit

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 demonstrating [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.
- 422 -

Nebraska Supreme Court Advance S

296 Nebraska Report

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 assumption—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 provide the missing “proof to the contrary.”16 It does not contain 

the hearings on the motions to reinstate, the motion for sanctions, or the motion to vacate the order of sanctions. As a general 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 -

Nebraska Supreme Court Advance S

296 Nebraska Report

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 imposing sanctions.

Affirm

17 Pierce v. Landmark Mgmt. Group, 293 Neb. 890, 880 N.W.2d 885 (2016).

18 See cases cited supra note 15.