Clarke v. First Nat. Bank of Omaha
296 Neb. 632
| Neb. | 2017Background
- Hilda Graham and Linda Clarke opened a joint survivorship account (CD) at First National Bank of Omaha (FNB); Hilda later allegedly instructed the bank to change it to a single-party account naming Gregg Graham as pay-on-death beneficiary.
- FNB’s employee changed the account in the bank’s records without obtaining a signed written change as required by bank policy and Neb. Rev. Stat. § 30-2724.
- Hilda died; FNB paid the CD funds to Gregg Graham based on its records; Clarke sued FNB claiming ownership of the CD.
- District court entered summary judgment sustaining Clarke’s motion (against FNB) and granting judgment in favor of FNB against Graham on February 1, 2016.
- Graham filed a postjudgment "Motion for New Trial to Amend Judgment" on February 5, 2016 and filed a notice of appeal on February 9, 2016, before the court entered an order denying his postjudgment motion on February 12, 2016.
- The Nebraska Supreme Court dismissed Graham’s appeal for lack of jurisdiction because his notice of appeal was filed prematurely and thus ineffective under Neb. Rev. Stat. § 25-1912(3).
Issues
| Issue | Plaintiff's Argument (Graham) | Defendant's Argument (FNB / Clarke) | Held |
|---|---|---|---|
| Whether Graham’s postjudgment "motion for new trial" tolled the 30-day appeal period | The motion was filed and effectively tolled the appeal period; bailiff informed counsel the court had announced denial before the notice of appeal | Motion for new trial is improper after summary judgment and/or, regardless, no record shows the court announced its decision before the notice of appeal | The motion was functionally a timely motion to alter or amend and did toll the appeal period; but the record lacks evidence the court announced its ruling before Graham’s notice, so the notice was ineffective |
| Whether a notice of appeal filed after an announced decision but before entry of the order is preserved by the savings clause of § 25-1912(3) | Notice should be treated as filed on the date of the later entry if the court had already announced denial (via bailiff) | Savings clause applies only when the record shows an official announcement by the court; mere attorney/bailiff conversations are insufficient | Savings clause applies generally, but here the record did not show an official announcement; therefore the notice was ineffective |
| What constitutes an "announcement" sufficient to invoke the savings clause | (Implied) any official communication informing counsel of the court's decision suffices | Announcement must be an official, public or formal notification (bench proclamation, docket note, file-stamped or signed journal entry, etc.) | Announcement requires an official/public statement by the court; informal communications to counsel do not suffice |
| Whether Reutzel and Dale Electronics control the result on premature notices | Graham argued subsequent statutory amendment revived Dale Electronics' rule allowing certain premature notices | FNB relied on Reutzel holding that premature notices after postjudgment motions are ineffective | The court held that statute now contains a savings clause restoring the Dale Electronics principle in limited circumstances, but the savings clause only applies when an announcement appears in the record; Reutzel was superseded insofar as statute added the savings clause |
Key Cases Cited
- Despain v. Despain, 290 Neb. 32 (interpreting what qualifies as an "announcement" for postjudgment timing)
- Reutzel v. Reutzel, 252 Neb. 354 (holding notice filed after a postjudgment motion but before ruling was ineffective; later superseded on this point by statutory amendment)
- Dale Electronics, Inc. v. Federal Ins. Co., 203 Neb. 133 (holding notice filed after announcement but before entry can be effective if record shows announcement and later entry)
- Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1 (holding a motion for reconsideration is functionally equivalent to a motion to alter or amend judgment and tolls appeal period)
- Haber v. V & R Joint Venture, 263 Neb. 529 (premature notice ineffective where postjudgment motions not finally disposed and no announcement shown)