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PRIESNER v. STARRY

Cite as 300 Neb. 81

Kenneth D. Priesner and Laurie Wrage Priesner, 

appellants, v. Jim L. Starry and Bayview

Townhouses, appellees.

___ N.W.2d ___

Filed May 25, 2018. No. S-17-713.

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.

Nebraska Supreme Court Online Library

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

06/01/2018 09:07 AM CDT
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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. 

Rowlands, Judge. Affirmed.

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.

Heavican, 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.
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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 
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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 injunctive 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 
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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 the receiver was filed on August 2 

to correct scrivener’s errors.

August 2, 2016, Order Appointing

Receiver With Directions

The operative order of appointment described that the court 

had ordered the sale of the property at a public sale. The property was described as “four (4) townhouse units and collective 

common elements.”

The order stated that the receiver should immediately take 

charge, manage, operate, or discontinue all or part of the operations in his sole discretion and appoint such managers or management companies, leasing agents, listing agents, accountants, 

attorneys, and other professionals as he deemed appropriate 

and necessary to assist in the management, operation, or discontinuance of its operations, and protection and operation of 

the property according to the Declaration.
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The order set forth that the receiver had all powers and 

authority reasonably necessary to accomplish his purposes.

The order set forth numerous powers, including, but not 

limited to (1) taking charge and possession of the property 

subject to the Declaration and all improvements thereto and 

all personal property used or associated therewith, regardless of where such property is located; (2) repairing, replacing, maintaining, and protecting the receivership property 

and paying for ordinary and necessary maintenance thereto, 

including deferred maintenance and taking such other steps 

as the receiver deems appropriate to prevent waste; (3) incurring indebtedness to the extent required to perform his duties 

as receiver in securing such indebtedness by granting a lien 

on the receivership property that is prior and superior to any 

lien other than the mortgage and tax liens; (4) using “income, 

rents, and receipts from the Receivership Property,” for the 

payment of, in order of priority, administrative expenses, the 

receiver’s fees and costs, the receiver’s attorney and consultant 

fees and costs, expenses of the receivership, any debts secured 

by a lien, principal and interest payments, and “only after 

paying all expenses of the Receivership and all arrearages in 

principal and interest shall the Receiver pay pre-Receivership 

debts and/or liens of any nature and only after a determination is made by the Receiver that such pre-Receivership debts 

and /or liens of any nature are properly payable”; (5) making 

determinations as to the nature and validity of any prereceivership property debt or lien of any nature assessed according to the Declaration and whether it is properly payable or 

dischargeable by the receiver; and (6) doing “any and all acts 

necessary and convenient or incidental” to “see to the sale of 

the Property at Public Sale.”

November 15, 2016, Order To Sell

Without Replacing Roof and Siding

The court issued a written order on November 15, 2016, 

following a hearing in which the receiver described that the 

parties appeared financially incapable of paying the deposits 
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required to replace the condominium roof and siding as ordered 

in the prior judgment. The order set forth that the “Receiver is 

authorized to sell all units of the [condominium] at public sale, 

as he cannot obtain funding to make repairs” and “[t]he property can be sold not subject to any prior orders regarding work 

required to be performed prior to the sale.”

February 8, 2017, Order

Acknowledging Repairs

A status hearing was subsequently held in February 2017, 

at which point the receiver expressed his intention to conduct substantial repairs on one of Starry’s units that was in a 

dilapidated state. The receiver noted that he had to evict the 

tenant living there. The court issued an order on February 8, 

2017, noting that the receiver had given “a verbal update of the 

Receiver’s anticipated repairs, and proposed sale date.”

Order Releasing All Liens by

Priesners and Association

In anticipation of the public sale, on May 2, 2017, the court 

issued an order declaring that any liens upon the condominium 

by the Priesners individually or on behalf of the Association 

were to be released and “will attach solely to any proceeds 

of . . . Starry . . . after the sale.” The court explained that 

the receiver’s fees and expenses would be determined at a 

later hearing.

June 28, 2017, Order

Confirming Sale

The public sale took place on May 22, 2017. Thereafter, 

the Priesners filed a motion to set an evidentiary hearing 

“to receive evidence on the matter of approving or denying 

the May 22, 2017 sale of the Townhouses and on the matter of repair and receiver related costs and the distribution 

of proceeds.” The receiver, for his part, requested a hearing 

“confirming the sale of the property, releasing liens between 

the parties, and any other order to facilitate the closing of the 

real property.” The Priesners then moved for a court-ordered 
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appraisal of each of the condominium units, payment by the 

receiver of property damage to the Priesners’ windows allegedly caused by the receiver’s contractor, and the appointment 

of an “uninterested closing agent” in the event the court 

approved the public sale.

A hearing was held on June 14, 2017. Exhibits were entered 

into evidence by the receiver showing $1,080 in mowing 

expenses for the condominium, $688.53 in sewage-related 

expenses for the condominium, $11,205 in receiver fees, $812 

in costs related to the public sale, and $10,628.38 in repairs 

and maintenance of one of Starry’s units. Invoices totaling over 

$10,000 in repairs and maintenance of Starry’s unit, as well as 

$1,080 in mowing, were from ASAP Construction, Inc.

The court accepted into evidence an itemized invoice of the 

receiver’s time spent in his duties as receiver for the condominium, up to the time of the hearing, which totaled $11,205 

in fees. The receiver testified that the work performed was 

generally attributable to both Starry’s and the Priesners’ units. 

He believed that it made sense to simply distribute the total 

invoice to the parties in proportion to their unit shares. But the 

receiver admitted upon examination by the Priesners’ counsel 

that approximately $800 of his charges were for time mostly 

attributable to Starry’s units.

The receiver testified at the hearing as to the bidding process leading up to the sale of the condominium. The receiver 

stated that initial bids were for the units individually. Then the 

Priesners’ unit was offered separately from Starry’s combined 

units. Finally, bidders were offered to bid on the condominium as a whole. A summary including each bid was entered 

into evidence.

When the bids were for the units individually, no one bid 

on Starry’s units. The Priesners were the only bidders for their 

unit, bidding $12,000. There were three bids by two bidders on 

the separate garage, with the Priesners placing the largest bid 

at $4,000.

When the bidders could bid on Starry’s combined units and 

the Priesners’ individual unit separately, there were three bids 
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by two bidders on the Priesners’ unit. The largest bid on the 

Priesners’ unit was $30,000, by the Priesners. There were five 

bids by three bidders on all of Starry’s combined units, plus the 

garage. The highest bid was $128,000.

After that, the bidding for the condominium as a whole 

took place. Bidders were informed that the opening bid had 

to exceed $158,000, the total of the previous bidding for the 

Priesners’ unit separately from Starry’s combined units. Two 

bidders placed nine bids. The winning bid was $177,000.

The receiver proposed distributing the proceeds of the public sale, after payment of liens and receivership fees and 

expenses, in proportion to the respective unit interests with 

the caveat that proportionate deduction from those proceeds be 

limited to his fees, costs relating to the public sale, and maintenance of the common areas of the condominium.

The receiver suggested that the expenses attributable to 

the repair and maintenance of Starry’s units be deducted 

solely from Starry’s share of the sale proceeds. In addition, 

the receiver suggested that Starry and the Priesners would be 

responsible, out of their respective shares, for their respective mortgage liens and property taxes. Starry had a mortgage 

lien against his properties in the amount of $101,243.97. 

The Priesners had a mortgage lien in the amount of approximately $11,000. Real estate taxes for Starry’s properties were 

a total of $2,873.10, while the Priesners’ real estate taxes 

were $882.94.

The receiver also asked that the court reiterate its prior ruling that any previous liens or claims by the Priesners or the 

Association were released and would be dealt with “personally.” In this regard, the receiver made reference to a lien filed 

by the Association against Starry. But no lien was offered into 

evidence by either party in any of the hearings.

The court filed a journal entry on June 28, 2017. The 

order ratified and confirmed the public sale and sustained the 

Priesners’ request to use an independent closing agent. The 

court directed the receiver to pay out of the sale proceeds of 

the public sale all real estate taxes, closing costs, mortgage 
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liens, and the receiver’s fees and expenses up to that date and 

as reflected in the exhibit entered into evidence at the hearing. 

Those expenses included a bill from ASAP Construction in the 

amount of $11,105.17. Any remaining funds would be paid into 

the registry of the court.

The court explained that after the receiver had filed the final 

report of income and expenses and his remaining fees, a final 

hearing would be held. If any funds remained after the receiver 

had been fully paid and discharged, “the Court will again 

consider [the Priesners’] request to present evidence from an 

appraiser as to the fair market value of each of the five units 

as of May 22, 2017 and [the Priesners’] request for payment to 

repair the window.”

The court’s order set forth that “[a]ll other claims by either 

party or the Association against any party to this action are 

released, and will be filed in a separate proceeding.”

Finally, the court stated that its order was interlocutory and 

not immediately appealable.

The Priesners appeal the June 28, 2017, order.

ASSIGNMENTS OF ERROR

The Priesners assign that the district court erred in (1) 

ratifying and confirming in all respects the sale of the condominium; (2) finding that there was active bidding at the 

sale; (3) finding that a subsequent sale would not generate a 

greater amount; (4) ordering payment by the receiver of his 

fees and expenses, including ASAP Construction’s bill for 

its work on Starry’s unit; (5) releasing all other claims by 

either party or the Association against any party, to be filed 

in a separate proceeding; and (6) ordering that its order shall 

be interlocutory.

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.1

1 In re Interest of Zachary B., 299 Neb. 187, 907 N.W.2d 311 (2018).
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[2] An order giving directions to a receiver will not be disturbed on review in the absence of an abuse of discretion.2

ANALYSIS

[3] On appeal, we consider only arguments that are both 

specifically assigned and specifically argued in the appellate 

brief.3 Considering what was specifically assigned and argued, 

the Priesners’ assignments of error can be distilled into four 

broad contentions. First, the Priesners argue that the court erred 

in ordering the sale of the condominium as a whole, including 

their unit. Second, and alternatively, they challenge the method 

of the sale, because the receiver did not offer up the condominium as a whole for bids before offering the units individually. Third, the Priesners challenge the distribution of the sale 

proceeds to pay receiver fees and expenses attributable solely 

to Starry’s units. Finally, the Priesners contest the release of 

any Association liens on the property.

However, before reaching the merits of these contentions, 

it is our duty to determine whether we have jurisdiction in 

this appeal over each of the issues presented.4 Neb. Rev. 

Stat. § 25-1911 (Reissue 2016) gives this court jurisdiction to 

review a “judgment rendered or final order made by the district court.” Neb. Rev. Stat. § 25-1912 (Reissue 2016) further 

provides that appeals from a judgment rendered or final order 

made by the district court is not perfected unless a notice of 

intention to prosecute an appeal is filed with the district court 

within 30 days of the judgment or final order, as provided 

under that statute.

[4-6] Under these statutes, to vest an appellate court with 

jurisdiction, a notice of appeal must be filed with 30 days of 

2 See State, ex rel. Sorensen, v. Nebraska State Bank, 124 Neb. 449, 247 

N.W. 31 (1933).

3 See Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).

4 See, e.g., In re Interest of Zachary B., supra note 1; Ginger Cove Common 

Area Co. v. Wiekhorst, 296 Neb. 416, 893 N.W.2d 467 (2017).
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the entry of a final order or judgment.5 Furthermore, 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 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

Neb. Rev. Stat. § 25-1902 (Reissue 2016) generally defines 

a final order as an order “affecting a substantial right in an 

action, when such order in effect determines the action and 

prevents a judgment, and an order affecting a substantial right 

made in a special proceeding, or upon a summary application in an action after judgment.” However, Neb. Rev. Stat. 

§ 25-1090 (Reissue 2016) more specifically addresses orders 

appointing receivers, giving them further directions, and disposing of property. Section 25-1090 states in relevant part 

that “[a]ll orders appointing receivers, giving them further 

directions, and disposing of the property may be appealed to 

the Court of Appeals in the same manner as final orders and 

decrees.” Under Neb. Rev. Stat. § 25-1087 (Reissue 2016), 

every order appointing a receiver must contain special directions with respect to the receiver’s powers and duties and the 

court may give further directions as may become proper in the 

further progress of the cause.

Since its passage in 1867, we have held that orders appointing receivers, giving them further directions, and disposing 

of property are final orders pursuant to § 25-1090, without 

additionally determining whether they would be final under 

5 See Tilson v. Tilson, 299 Neb. 64, 907 N.W.2d 31 (2018).

6 See, e.g., Ginger Cove Common Area Co. v. Wiekhorst, supra note 4; 

Pinnacle Enters. v. City of Papillion, 286 Neb. 322, 836 N.W.2d 588 

(2013); In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008); 

State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997). See, also, State v. 

Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005).

7 See, e.g., In re Interest of Zachary B., supra note 1; Pinnacle Enters. v. 

City of Papillion, supra note 6.
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§ 25-1902.8 Section § 25-1090 has been described as the more 

specific statute concerning the finality of such orders and thus 

controlling over the more general description of final orders 

found in § 25-1902.9

[7] Section 25-1090 was enacted the same year as § 25-1902. 

We have explained that finality under § 25-1902 depends most 

fundamentally on whether the right affected by the order 

could effectively be vindicated through an appeal from the 

final judgment, or instead would be significantly undermined 

or irrevocably lost by postponing appellate review.10 We have 

observed that receiverships are a harsh and drastic remedy, not 

to be implemented lightly.11 Though no legislative history is 

available, the Legislature presumably determined that orders 

placing property into receivership, giving directions relating 

to the receiver’s powers over the property, and disposing of 

receivership property, affect rights that would be significantly 

undermined by postponing appellate review. The Legislature 

has mandated by the plain language of § 25-1090 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 §§ 25-1911 and 25-1912.

The order presently appealed, confirming the public sale, 

is a final order under § 25-1090 because it is both an order 

8 See, Robertson v. Southwood, 233 Neb. 685, 447 N.W.2d 616 (1989); 

Federal Land Bank of Omaha v. Victor, 232 Neb. 351, 440 N.W.2d 667 

(1989); Lewis v. Gallemore, 173 Neb. 441, 113 N.W.2d 595 (1962); State 

v. Fawcett, 58 Neb. 371, 78 N.W. 636 (1899). See, also, Floral Lawns 

Memorial Gardens Assn. v. Becker, 284 Neb. 532, 822 N.W.2d 692 (2012); 

Nebraska Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001); 

Dickie v. Flamme Bros., 251 Neb. 910, 560 N.W.2d 762 (1997); Sutton v. 

Killham, 22 Neb. App. 257, 854 N.W.2d 320 (2014).

9 See Sutton v. Killham, supra note 8.

10 See, e.g., Ginger Cove Common Area Co. v. Wiekhorst, supra note 4; In re 

Adoption of Madysen S., 293 Neb. 646, 879 N.W.2d 34 (2016).

11 Floral Lawns Memorial Gardens Assn. v. Becker, supra note 8.
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disposing of receivership property and it gives the receiver 

directions. The district court’s statement that the order was not 

directly appealable is of no effect.

Nevertheless, we do not have jurisdiction in this appeal 

from the June 28, 2017, order over every argument raised in 

the Priesners’ appellate brief. The Priesners admit that they 

did not timely appeal prior orders placing their property into 

the receivership and giving directions relating to the receiver’s 

powers over such property.

Selling Priesners’ Unit and

Condominium as Whole

Upon our review of the record, we find that we lack jurisdiction to consider the Priesners’ challenge in this appeal to the 

court’s direction to sell their unit and to sell the condominium 

as a whole. That issue was determined by the July 14, 2016, 

order appointing the receiver with direction, which stated that 

the receiver had all powers and authority reasonably necessary 

to accomplish the receiver’s purpose of selling the property at 

a public sale. The property was described as “four (4) townhouse units and collective common elements.” This description 

clearly encompassed the Priesners’ unit and the possible sale 

of the condominium as a whole. The “property” directed to be 

sold was described in the singular, wholly encompassing both 

the personally owned units and the common areas.

The Priesners in fact admitted at oral argument that they 

did not appeal this order, because they did not feel at the time 

that the sale would necessarily be disadvantageous to them. 

We cannot address the order now simply because the sale did 

not turn out as the Priesners had hoped. Because the Priesners 

did not appeal from the order of appointment directing the 

receiver to sell the entire condominium, we express no opinion as to the propriety of such an order in this case. We lack 

jurisdiction over any issue raised in this appeal concerning the 

propriety of the order to sell the condominium, including the 

Priesners’ unit.
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Release of Liens

For similar reasons, we cannot address the Priesners’ argument regarding the court’s release of alleged liens they and the 

Association had against the condominium as a whole or any 

of its units. In an order dated May 2, 2017, the court rejected 

the Priesners’ offer to buy the condominium without a public 

sale and directed the receiver to proceed with a public sale. 

Relating to that future public sale, the court ruled that any 

liens claimed by the Priesners individually or on behalf of the 

Association “are released and will attach solely to any proceeds of . . . Starry . . . after the sale.” This order followed a 

hearing in which the receiver had expressed concern over the 

public sale in light of liens registered on the property.

[8] The May 2, 2017, release of the liens was part of the 

directions to the receiver to continue with the planned sale. It 

was therefore final under § 25-1090. Because the Priesners did 

not timely appeal this order of further direction to the receiver, 

we are foreclosed from addressing it now in the appeal from 

the order confirming the sale. The order was not revived by 

the fact that the court reiterated in its order confirming the sale 

that those liens were released. There is no “second bite at the 

apple” when it comes to an appellant’s opportunity to appeal 

a final order.12

We find no impediment to addressing the Priesners’ remaining two arguments challenging the order of the bidding process 

and the distribution of sale proceeds to pay ASAP Construction 

for work performed on Starry’s unit and for the receiver’s time 

spent managing Starry’s unit and preparing it for sale. We first 

address the bidding process.

Order of Bidding

The Priesners assert that the bidding process was unfair 

because the condominium units were offered individually 

before the bids were received for the condominium as a 

12 See, e.g., In re Interest of Zachary B., supra note 1; Pinnacle Enters. v. 

City of Papillion, supra note 6.
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PRIESNER v. STARRY

Cite as 300 Neb. 81

whole. The Priesners do not assert that there were insufficient bidders or that there was not active bidding. Rather, the 

Priesners complain that they did not know what amount for 

their individual bid on their property would be sufficient to 

outbid bidders when the condominium was offered as a whole 

subsequent to the offers by individual units. As a result of 

such lack of information, which they allege was inherent to 

the order of bidding, the Priesners allege they lost their property when they bid too low. Had the bidding process started 

with the condominium as a whole, the Priesners argue they 

could have tailored their bid on their individual unit to ensure 

it would have been the winning bid.

At the hearing on June 14, 2017, the Priesners presented 

little evidence as to the maximum amount they were able to bid 

or how they determined what amount to bid. Other than general 

principles of equity, the Priesners present no law indicating that 

a condominium should be offered at a public sale as a whole 

first and then by unit—as opposed to the other way around. 

The Priesners assert that they should not have been expected 

to “conspire” with another bidder in order to be the successful 

bidder under the method that the bidding was conducted.13 But 

even if the order of bidding had been conducted the other way 

around, the Priesners do not explain how they would know the 

bid amounts by the other bidders on the other individual units, 

in order to be able to tailor a bid that, in combination with the 

individual bids for the other units, would exceed the prior highest bid on the condominium as a whole.

The order of the sale was within the receiver’s broad powers 

as set forth in the district court’s orders. Though the Priesners 

rely on a statement during a hearing in which the judge apparently envisioned offering the condominium as a whole and then 

the units individually, that was not stated as a directive. More 

importantly, that statement was never memorialized in any 

order of direction to the receiver.

13 Brief for appellants at 18.
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PRIESNER v. STARRY

Cite as 300 Neb. 81

[9,10] A receiver is “‘the arm of the court.’”14 If the court 

has not abused its discretion in the giving of the directions to 

the receiver, we will not disturb actions by the receiver that 

were in conformity with those directions.15 We find no abuse 

of discretion in the broad powers conferred by the court upon 

the receiver concerning the manner in which he conducted the 

public sale.

Payment From Proceeds of Costs

and Fees Associated With

Starry’s Unit

The Priesners’ last argument is that the court erred in its June 

28, 2017, order by directing the payment of work performed on 

Starry’s units from the sale proceeds of the condominium.

The Priesners argue that this work should not be paid from 

the public sale proceeds because the work was unauthorized 

and outside the scope of the powers conferred through the order 

of appointment with direction. According to the Priesners, the 

court’s order of appointment limited the receiver’s authority to 

the exterior unit structures and common areas, and the receiver 

lacked any power to manage Starry’s tenants or repair Starry’s 

individual units.

We disagree. The order of appointment with direction 

described the property as the “four (4) townhouse units and 

collective common elements.” Nothing in the order limited 

the receiver’s authority to the “exterior” of the units.16 To the 

contrary, the order described the receiver’s power to hire leasing agents and take charge of personal property “regardless of 

where such property is located.”

The Priesners also assert that the work on Starry’s unit was 

contrary to the court’s order of further direction on November 

15, 2016, which the Priesners assert was an order to sell 

14 State v. Bank of Rushville, 57 Neb. 608, 610, 78 N.W. 281, 282 (1899).

15 Id.

16 See brief for appellants at 22.
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PRIESNER v. STARRY

Cite as 300 Neb. 81

the property “as-is.”17 But the November 15 order stated: 

“Receiver is authorized to sell all units of the [condominium] 

at public sale, as he cannot obtain funding to make repairs” 

and “[t]he property can be sold not subject to any prior orders 

regarding work required to be performed prior to the sale.” 

The only work required by any prior order at that time was the 

2014 judgment ordering the siding and roof replacement. The 

November 15 order did not refer to the repairs on Starry’s unit 

that were later discovered and deemed by the receiver necessary to make the condominium sellable at a public sale. Nor 

did the November 15 order generally mandate that the property 

was to be sold “as-is.”

The Priesners further assert that the receiver should not be 

paid for work performed on Starry’s units because the receiver 

failed to comply with the court’s original directive to serve 

“as custodian of the Declaration for the benefit of all parties 

subject to the Declaration.” The Priesners’ argument in this 

regard is somewhat unclear. They seem to reiterate the argument that the receiver was limited through this directive to the 

common areas and exterior of the units. But even if the unit 

owners had no authority under the Declaration over each other’s units, the receiver’s powers were not limited in the order 

of appointment with direction to the powers conferred under 

the Declaration. As already discussed, the order of appointment with direction gave the receiver broad powers over the 

property to be sold.

Additionally, the Priesners argue that the receiver did 

not comply with the court’s directive to act as custodian of 

the Declaration for the benefit of all parties, because the 

receiver spent time and money on Starry’s units, but not on 

the Priesners’ unit. The Priesners do not assert, however, that 

their unit required any attention in order to maintain it until the 

sale or in order to make it sellable. Thus, we find no merit to 

this argument.

17 Id. at 21.
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PRIESNER v. STARRY

Cite as 300 Neb. 81

Finally, the Priesners take issue with the necessity of the 

repairs to one of Starry’s units. The receiver had explained 

to the court that the unit contained water damage, extensively damaged drywall, and mold throughout. We find that 

the receiver’s determination that these repairs were necessary 

to make the unit sellable was within the broad scope of the 

receiver’s powers to act toward the ultimate goal of selling the 

condominium at a public sale.

In sum, the Priesners fail to set forth sufficient reasons for 

this court to reverse the district court’s judgment that, in a 

public sale of the condominium as a whole, it was appropriate 

to pay from the singular proceeds of the sale work performed 

on one of the units with the purpose of ensuring that the property as a whole was sellable. While we sympathize with the 

Priesners’ assertions that they should not have to subsidize 

Starry’s neglect, that predicament fundamentally stems from 

the court’s order to sell the property as a whole. As discussed, 

the issues we may reach in this appeal are limited by the 

Priesners’ failure to timely challenge prior final orders. We 

also observe that the inequity claimed by the Priesners may 

still be addressed in a future hearing determining the distribution of the remaining sale proceeds.

CONCLUSION

For the foregoing reasons, we affirm the lower court’s order 

confirming the public sale.

Affirmed.