Clarke v. First Nat. Bank of Omaha
296 Neb. 632
| Neb. | 2017Background
- Hilda Graham and Linda Clarke opened a joint CD account at First National Bank of Omaha (FNB) as a multiparty account with rights of survivorship; Hilda later phoned the bank to change it to a single-party account with Gregg Graham as pay-on-death beneficiary.
- Bank employee made the change without a signed replacement agreement; Hilda later died and FNB paid the CD to Gregg based on its records.
- Clarke sued FNB claiming ownership of the CD; FNB filed a third-party claim against Gregg seeking recovery to the extent it was liable to Clarke.
- 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 and filed a notice of appeal on February 9, before the court’s written order denying his postjudgment motion was entered on February 12.
- The Nebraska Supreme Court dismissed the appeal for lack of jurisdiction because Gregg’s notice of appeal was filed prematurely and therefore ineffective under Neb. Rev. Stat. § 25-1912(3).
Issues
| Issue | Plaintiff's Argument (Graham) | Defendant's Argument (FNB/Clarke) | Held |
|---|---|---|---|
| Whether a postjudgment motion filed after summary judgment (titled "new trial") tolled appeal time | Motion for new trial functionally sought reconsideration/alteration of judgment, so it tolled appeal time | A new-trial motion after summary judgment is improper and does not toll the appeal period | Motion treated as motion to alter/amend because it sought substantive relief; it tolled the 30-day appeal period |
| Whether Gregg's notice of appeal filed before entry of ruling on postjudgment motion could be saved by § 25-1912(3) (the savings clause) | The judge (via bailiff) announced denial before Gregg filed notice, so savings clause applies and notice is treated as filed on entry date | Notice was filed prematurely and thus of no effect unless an official announcement is shown in the record | Savings clause requires an actual announced decision; Gregg failed to show an announcement in the record, so his premature notice had no effect |
| What qualifies as an "announcement" for purposes of the savings clause | Bailiff’s oral statement to counsel constituted announcement | Announcement must be an official/public notification (bench proclamation, docket note, file-stamped/unsigned journal entry, or similar) | Announcement requires a form of public/official notification; informal statements to counsel/bailiff are insufficient absent record evidence |
| Appellant's burden to establish appellate jurisdiction | Gregg relied on counsel affidavit/unsworn letter and statements outside the record | Appellant must create a record showing facts supporting jurisdiction; briefs cannot expand the record | Appellant failed to produce admissible record evidence of an announcement; jurisdiction lacking and appeal dismissed |
Key Cases Cited
- Cain v. Custer Cty. Bd. of Equal., 291 Neb. 730 (discusses statutory interpretation of appeal timing)
- RM Campbell Indus. v. Midwest Renewable Energy, 294 Neb. 326 (appellate review of statutory questions)
- Douglas County v. Archie, 295 Neb. 674 (jurisdictional principles)
- State v. Thieszen, 295 Neb. 293 (appeal-timing precedent)
- Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1 (postjudgment motions and functional treatment as motions to alter/amend)
- Despain v. Despain, 290 Neb. 32 (what constitutes an announcement; unsigned journal entry can qualify)
- Reutzel v. Reutzel, 252 Neb. 354 (prior holding on premature notices of appeal superseded by later statutory amendment)
- Dale Electronics, Inc. v. Federal Ins. Co., 203 Neb. 133 (notice of appeal filed after announcement but before entry can be effective)
- Haber v. V & R Joint Venture, 263 Neb. 529 (distinguished; dealt with unresolved postjudgment motions)