Clarke v. First Nat. Bank of Omaha
296 Neb. 632
| Neb. | 2017Background
- Hilda Graham and Linda Clarke opened a joint survivorship account at First National Bank of Omaha (FNB) holding a CD; Hilda later requested by phone that the account be changed to single-party with Gregg Graham as pay-on-death beneficiary.
- FNB’s employee changed the account in the bank’s records without a signed written change as required by bank policy and Neb. Rev. Stat. § 30-2724(a); Hilda later died and the CD funds were paid to Gregg.
- Clarke sued FNB asserting ownership of the CD; FNB filed a third-party claim against Gregg seeking recovery to the extent it was liable to Clarke.
- The district court entered summary judgment in favor of Clarke against FNB and in favor of FNB against Gregg on February 1, 2016. Gregg 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 motion on February 12, 2016.
- FNB moved to dismiss Gregg’s appeal for lack of appellate jurisdiction under Neb. Rev. Stat. § 25-1912(3), arguing Gregg’s notice of appeal was filed prematurely because it was filed before the court had ruled on his timely postjudgment motion.
Issues
| Issue | Plaintiff's Argument (Graham) | Defendant's Argument (FNB) | Held |
|---|---|---|---|
| Whether Gregg’s postjudgment "motion for new trial" suspended the 30‑day appeal clock under § 25‑1912(3) | The motion was a new‑trial motion that did not terminate the appeal period for summary judgment | The motion functionally sought reconsideration/alteration of judgment and thus suspended the appeal period | Held: The motion was effectively a motion to alter/amend (reconsideration) and timely filed, so it suspended the appeal period |
| Whether a notice of appeal filed before the court announced its ruling on a timely postjudgment motion can be saved by § 25‑1912(3)’s savings clause | The judge (via bailiff) announced denial before Gregg filed notice; savings clause should treat the notice as filed on entry date | Notice was filed before any official announcement or ruling and thus was of no effect under § 25‑1912(3) | Held: The record lacked adequate evidence of an official announcement before Gregg filed his notice; notice was without effect and appeal dismissed |
| What qualifies as an "announcement" under § 25‑1912(3) for purposes of the savings clause | (implicit) communications by court staff to counsel may qualify | Savings clause requires an official announcement (bench proclamation, docket note, file‑stamped unsigned entry, or similar) | Held: Announcement requires official/public notification; informal communications to counsel/bailiff do not suffice absent record evidence |
| Whether the appellate court has jurisdiction over the appeal | Gregg argued savings clause applied and treated his notice as filed on Feb 12 | FNB argued no effective notice was filed within statutory time; thus appellate courts lack jurisdiction | Held: No jurisdiction — notice ineffective because filed before court announced or entered ruling on the timely postjudgment motion |
Key Cases Cited
- Dale Electronics, Inc. v. Federal Ins. Co., 203 Neb. 133 (reinstates that a notice filed after court announcement but before entry can be effective)
- Reutzel v. Reutzel, 252 Neb. 354 (interpreted prior § 25‑1912 amendments to render pre‑entry notices ineffective; superseded by later statutory change)
- Despain v. Despain, 290 Neb. 32 (unsigned journal entry sent to parties constituted an "announcement" for savings‑clause purposes)
- Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1 (motion for new trial after summary judgment that sought reconsideration functions as a motion to alter/amend)
- Haber v. V & R Joint Venture, 263 Neb. 529 (notice filed while postjudgment motions remained unresolved was ineffective)