Clarke v. First Nat. Bank of Omaha
296 Neb. 632
| Neb. | 2017Background
- Hilda Graham and Linda Clarke opened a joint survivorship CD account at First National Bank of Omaha (FNB); Hilda later telephoned the bank requesting the account be changed to single-party with a pay-on-death beneficiary (Gregg Graham).
- A bank employee (Craven) changed the account in the bank’s records without a signed written amendment; Hilda later died and the CD proceeds were paid to Gregg Graham per the altered records.
- Clarke sued FNB claiming ownership of the CD; FNB filed a third-party claim against Gregg Graham for recovery to the extent FNB was liable to Clarke.
- The district court granted summary judgment for Clarke against FNB and for FNB against Graham on February 1, 2016.
- Graham filed a postjudgment "Motion for New Trial to Amend Judgment" on February 5, 2016, then filed a notice of appeal on February 9, 2016; the court entered an order denying the postjudgment motion on February 12, 2016.
- The Nebraska Supreme Court considered whether Graham’s prematurely filed notice of appeal vested appellate jurisdiction under Neb. Rev. Stat. § 25-1912(3) (the savings clause) and dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Graham’s postjudgment "motion for new trial" tolled the 30-day appeal period | Graham argued his postjudgment motion effectively sought reconsideration/alteration of the judgment and was timely, thus tolling the appeal period | FNB argued a motion for new trial following summary judgment is improper and does not toll the appeal period unless it functions as a motion to alter or amend | Held: The court treated Graham’s motion as a motion to alter or amend (reconsideration), it was timely, and thus tolled the appeal period |
| Whether a notice of appeal filed before the court’s ruling on a timely terminating motion is effective under § 25-1912(3) | Graham argued the judge (via bailiff) had announced denial before his notice, invoking the savings clause that treats the notice as filed on entry of the ruling | FNB argued the notice was premature and without effect because no official announcement or record-supported ruling occurred before the notice was filed | Held: A notice filed before the court announced its decision is without effect unless the record shows an announcement; Graham’s record lacked evidence of an official announcement, so the notice was ineffective |
| What constitutes an "announcement" under the savings clause | Graham relied on alleged oral communication from the bailiff as an announcement | FNB insisted that an announcement requires a public/official court proclamation or equivalent (docket notes, file-stamped unsigned journal entry, etc.) shown in the record | Held: Announcement means a public/official notification (bench proclamation, trial docket notes, file-stamped unsigned journal entries, or signed but unfiled entries). Unverified counsel affidavits/letters were insufficient to prove an announcement |
| Whether appellate jurisdiction exists over Graham’s appeal | Graham asserted the savings clause cured any premature filing and treated his appeal as filed on the February 12 ruling date | FNB maintained the prematurely filed notice had no effect and thus there was no timely appeal | Held: No jurisdiction — Graham’s notice of appeal was filed before the court announced or entered its ruling and was therefore without effect; appeal dismissed |
Key Cases Cited
- Reutzel v. Reutzel, 252 Neb. 354 (applying statutory tolling rules to notices filed after postjudgment motions) (discussed and treated as superseded by later statutory amendment)
- Dale Electronics, Inc. v. Federal Ins. Co., 203 Neb. 133 (recognizing a notice filed after a court’s announced decision but before entry can be effective if the record later shows entry in accordance with that announcement)
- Despain v. Despain, 290 Neb. 32 (holding unsigned journal entries sent to parties can constitute an announcement for tolling purposes)
- Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1 (treating a motion for reconsideration as the functional equivalent of a motion to alter or amend a judgment)
- Haber v. V & R Joint Venture, 263 Neb. 529 (addressing lack of jurisdiction where postjudgment motions had not been finally disposed of before notice of appeal)