Clarke v. First Nat. Bank of Omaha
296 Neb. 632
| Neb. | 2017Background
- Hilda Graham and Linda Clarke opened a joint survivorship bank account (CD) at First National Bank of Omaha (FNB) in Feb 2013.
- Hilda telephoned FNB in Aug 2013 and an employee changed the account to a single-party account with a pay-on-death beneficiary (naming Gregg Graham) without a signed written change on file.
- Hilda died Sep 2013; FNB paid the CD to Gregg Graham per its records; Clarke sued FNB claiming ownership of the CD.
- The district court granted summary judgment for Clarke against FNB and for FNB against Gregg Graham on Feb 1, 2016.
- Gregg Graham filed a “motion for new trial to amend judgment” on Feb 5, 2016, then filed a notice of appeal on Feb 9, 2016; the district court entered an order denying the postjudgment motion on Feb 12, 2016.
- The Nebraska appellate courts were asked to decide whether Graham’s prematurely filed notice of appeal conferred appellate jurisdiction under Neb. Rev. Stat. § 25-1912(3).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a motion for new trial filed after summary judgment can toll the 30-day appeal period | Graham: his postjudgment motion (styled new trial) was effectively a motion to alter or amend and thus tolled the appeal period | FNB: a motion for new trial after summary judgment is improper and does not stop the appeal clock | Court: the motion sought reconsideration/alteration of judgment and thus was treated as a timely motion to alter or amend, which tolled the 30-day appeal period |
| Whether a notice of appeal filed before the court’s announced ruling on a timely postjudgment motion is effective under § 25-1912(3) | Graham: the judge’s bailiff orally informed counsel the motion would be denied prior to Graham’s notice, invoking the savings clause so the notice should relate back to the later entry | FNB: the notice was premature and therefore without effect absent a formal announcement reflected in the record | Court: the record lacks evidence of an official announcement; a notice filed before the court announced its decision is without effect, so appellate jurisdiction is lacking |
| What constitutes an “announcement” under § 25-1912(3) sufficient to trigger the savings clause | Graham: asserted an oral announcement via bailiff sufficed | FNB: required formal or record-supported announcement (bench proclamation, docket note, file-stamped journal entry, etc.) | Court: "announcement" means a public/official notification (bench proclamation, trial docket notes, file-stamped or signed journal entries); unsupported assertions in pleadings/paralegal statements are insufficient |
| Burden to establish appellate jurisdiction when relying on an announced decision | Graham: relied on counsel affidavit and unsigned correspondence to show announcement | FNB: argued record must show announcement; briefs cannot expand the record | Court: appellant must create a record showing the announcement; briefs and unsigned attachments cannot supply missing evidentiary support; Graham failed to meet burden |
Key Cases Cited
- Dale Electronics, Inc. v. Federal Ins. Co., 203 Neb. 133, 277 N.W.2d 572 (1979) (a notice of appeal filed after a trial court has announced its decision but before entry of judgment can be effective if the notice relates to that announcement and a judgment is later entered accordingly)
- Reutzel v. Reutzel, 252 Neb. 354, 562 N.W.2d 351 (1997) (interpreting amended § 25-1912 language to hold a notice filed after filing a motion for new trial but before the court’s ruling was of no effect)
- Despain v. Despain, 290 Neb. 32, 858 N.W.2d 566 (2015) (unsigned but distributed journal entries can constitute an announcement for purposes of tolling appeal time when the record shows the court’s decision was announced)
- Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1, 701 N.W.2d 320 (2005) (a motion for reconsideration functions as a motion to alter or amend and will toll the appeal period)
- Haber v. V & R Joint Venture, 263 Neb. 529, 641 N.W.2d 31 (2002) (notice of appeal ineffective where court had not finally disposed of all postjudgment motions)