Priesner v. Starry

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/22/2018 08:16 AM CDT
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
PRIESNER v. STARRY
Cite as 300 Neb. 81
K enneth 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 appel-
late 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.
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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 H arder and Noakes, District Judges.
H arder, 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 deter-
mining 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 con-
dominium. They purchased the unit in 1983, when the condo-
minium 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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PRIESNER v. STARRY
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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 negli-
gent 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 result-
ing 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 blan-
ket property and liability insurance, hold an association meet-
ing, 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 insur-
ance 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 act-
ing 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 spe-
cial assessments to repair and replace the roof and siding of
the condominium.
But the Association did not foreclose on these liens pursu-
ant 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 judg-
ment. 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 unilater-
ally 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 alle-
gation. 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.
M arch 14, 2016, Order to Sell
A ll Units and Common A reas
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 A ppointing
R eceiver With Directions
The operative order of appointment described that the court
had ordered the sale of the property at a public sale. The prop-
erty 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 opera-
tions in his sole discretion and appoint such managers or man-
agement companies, leasing agents, listing agents, accountants,
attorneys, and other professionals as he deemed appropriate
and necessary to assist in the management, operation, or dis-
continuance of its operations, and protection and operation of
the property according to the Declaration.
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PRIESNER v. STARRY
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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, regard-
less of where such property is located; (2) repairing, replac-
ing, 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) incur-
ring 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 determina-
tion 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 prereceiv-
ership property debt or lien of any nature assessed accord-
ing 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 R eplacing 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 prop-
erty can be sold not subject to any prior orders regarding work
required to be performed prior to the sale.”
February 8, 2017, Order
Acknowledging R epairs
A status hearing was subsequently held in February 2017,
at which point the receiver expressed his intention to con-
duct 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 R eleasing A ll 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 mat-
ter 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 alleg-
edly 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 condo-
minium, 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 proc­
ess 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 condomin-
ium 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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Cite as 300 Neb. 81
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 pub-
lic 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 main-
tenance 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 respec-
tive 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 approxi-
mately $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 rul-
ing that any previous liens or claims by the Priesners or the
Association were released and would be dealt with “person-
ally.” 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 con-
dominium; (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 dis-
turbed 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 condo-
minium as a whole for bids before offering the units individu-
ally. 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 dis-
trict 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 applica-
tion in an action after judgment.” However, Neb. Rev. Stat.
§ 25-1090 (Reissue 2016) more specifically addresses orders
appointing receivers, giving them further directions, and dis-
posing 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 direc-
tions 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 appoint-
ing 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 juris-
diction 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. Ct. 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 jurisdic-
tion 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) town-
house 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 opin-
ion 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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R elease of Liens
For similar reasons, we cannot address the Priesners’ argu-
ment 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 pro-
ceeds 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’ remain-
ing 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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whole. The Priesners do not assert that there were insuffi-
cient 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 prop-
erty 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 high-
est 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 appar-
ently 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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[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 leas-
ing 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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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 neces-
sary 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 argu-
ment 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 oth-
er’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 appoint-
ment 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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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, exten-
sively 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 prop-
erty 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 distribu-
tion of the remaining sale proceeds.
CONCLUSION
For the foregoing reasons, we affirm the lower court’s order
confirming the public sale.
A ffirmed.