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) in 2013. Hilda later called the bank to change the account to a single-party account with Gregg Graham as pay-on-death beneficiary. Bank employee Naomi Craven made the change in the bank’s system before a signed written agreement was returned.
- Hilda died; bank records showed Clarke neither co-owner nor beneficiary, and FNB paid the CD balance to Gregg Graham. Clarke sued FNB claiming she was the owner of the CD.
- FNB filed a third-party claim against Gregg Graham seeking indemnity to the extent FNB was liable to Clarke. Clarke moved for summary judgment against FNB; the court entered summary judgment for Clarke and for FNB against Graham on February 1, 2016.
- On February 5, 2016, Graham filed a postjudgment "Motion for New Trial to Amend Judgment of Summary Judgment Order". On February 9, 2016, Graham filed a notice of appeal. The district court’s written order denying the postjudgment motion was entered February 12, 2016.
- FNB moved to dismiss the appeal for lack of appellate jurisdiction under Neb. Rev. Stat. § 25-1912(3), arguing Graham’s notice of appeal was premature and therefore ineffective. The Court of Appeals initially denied summary dismissal; the Nebraska Supreme Court transferred the case and resolved jurisdictional issues.
Issues
| Issue | Plaintiff's Argument (Graham) | Defendant's Argument (FNB) | Held |
|---|---|---|---|
| Whether Graham's postjudgment "motion for new trial" suspended the 30-day appeal period | The motion was filed and the court (via bailiff) had effectively announced denial before the notice of appeal, so savings clause should apply | The motion for new trial was either improper after summary judgment or, even if effective, Graham filed his notice before the court ruled, so the notice was without effect under § 25-1912(3) | The court held the motion functioned as a motion to alter or amend (thus suspended the appeal period) and Graham filed his notice before the court announced a ruling; the notice was therefore ineffective and appeal dismissed |
| What constitutes an "announcement" under § 25-1912(3) sufficient to trigger the savings clause | Graham asserted the bailiff’s communication or other informal notifications amounted to an announcement | FNB argued there is no record evidence of any official announcement by the court before the notice of appeal | The court held an "announcement" requires an official, public or formal notification (bench proclamation, docket notes, file-stamped or signed journal entries); the record lacked sufficient evidence that any such announcement occurred before Graham filed his notice |
| Whether a motion for new trial is proper after summary judgment and can terminate appeal time | Graham treated his motion as a motion for reconsideration to vacate the summary judgment | FNB argued a motion for new trial is improper after summary judgment and does not toll appeal time | The court explained a motion titled "new trial" after summary judgment is improper but courts look to the motion's substance; if it seeks substantive alteration it is treated as a motion to alter or amend and does toll the appeal period |
| Whether appellate record/support can be expanded by briefs to show an announcement | Graham attempted to rely on affidavits, counsel letters, and assertions made in briefing | FNB argued and court emphasized that the appellant must make the record and briefs cannot add new evidence | The court held the record lacked admissible evidence of an announcement and refused to consider assertions from the brief; appellant bears the burden to create the jurisdictional record |
Key Cases Cited
- Dale Electronics, Inc. v. Federal Ins. Co., 203 Neb. 133 (1979) (notice filed after announcement but before entry can be effective if record shows judgment later entered in accord with announcement)
- Reutzel v. Reutzel, 252 Neb. 354 (1997) (interpreting amended § 25-1912 language to render notice filed after a motion but before ruling ineffective)
- Despain v. Despain, 290 Neb. 32 (2015) (unsigned journal entry sent to parties constituted an "announcement" for postjudgment timing purposes)
- Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1 (2005) (motion for reconsideration is functionally equivalent to a motion to alter or amend judgment)
- Haber v. V & R Joint Venture, 263 Neb. 529 (2002) (notice of appeal ineffective when court had not finally disposed of all postjudgment motions)