Clarke v. First Nat. Bank of Omaha, 296 Neb. 632

Background

Hilda Graham and Linda Clarke opened a joint survivorship account at First National Bank of Omaha (FNB) holding a CD; Hilda later called the bank to change it to a single-party account with pay-on-death beneficiary (naming Gregg Graham).
FNB’s employee changed the account in the bank’s system without the required signed written agreement; Hilda later died and FNB paid the CD to Gregg Graham per its records, excluding Clarke.
Clarke sued FNB claiming ownership of the CD; FNB filed third-party claims against Gregg Graham.
The district court granted summary judgment for Clarke against FNB and for FNB against Graham on February 1, 2016.
Graham filed a motion titled "Motion for New Trial to Amend Judgment" on February 5, 2016, then filed a notice of appeal on February 9, 2016; the district court entered an order denying the postjudgment motion on February 12, 2016.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Graham's postjudgment motion tolled the 30-day appeal period	Graham argued his motion for new trial (reconsideration) should toll the appeal period	FNB argued a motion for new trial after summary judgment is improper and does not toll the appeal period	The court treated Graham’s motion as a timely motion to alter or amend (reconsideration) and therefore effective to terminate the initial 30-day appeal period
Whether a notice of appeal filed before the court’s ruling on a timely postjudgment motion is effective under § 25-1912(3)	Graham contended the court’s decision had been "announced" via the bailiff before his notice, invoking the savings clause that treats the notice as filed on entry	FNB argued the notice was premature and therefore without effect because no official announcement or entry appeared in the record before the notice	Held that § 25-1912(3)’s savings clause requires an announcement shown on the record; a notice filed before an announced decision that lacks record support is ineffective
What constitutes an "announcement" for triggering the savings clause	Graham relied on his attorney’s affidavit that the bailiff informed counsel the motion would be overruled	FNB argued the alleged bailiff communication is not an official announcement in the record	Court held announcements can include oral bench proclamations, docket notes, file-stamped or unsigned journal entries, or similar official notifications; hearsay or counsel assertions not in the record are insufficient
Whether the appellate court had jurisdiction over Graham’s appeal	Graham argued the savings clause renders his Feb 9 notice effective as of Feb 12 entry	FNB argued jurisdiction is lacking because the notice was filed before the court’s ruling and thus was ineffective	Court dismissed the appeal for lack of jurisdiction because the notice of appeal was filed before the court ruled and the record did not show an official announcement invoking the savings clause

Key Cases Cited

Dale Electronics, Inc. v. Federal Ins. Co., 203 Neb. 133, 277 N.W.2d 572 (Neb. 1979) (notice filed after announced decision but before entry may be effective if record shows subsequent entry in accordance with announced decision)
Reutzel v. Reutzel, 252 Neb. 354, 562 N.W.2d 351 (Neb. 1997) (interpreting revised § 25-1912 language to render pre-entry notices ineffective)
Despain v. Despain, 290 Neb. 32, 858 N.W.2d 566 (Neb. 2015) (unsigned journal entry sent to parties can constitute an "announcement" for appeal-timing statutes)
Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1, 701 N.W.2d 320 (Neb. 2005) (a motion for reconsideration functions as a motion to alter or amend judgment and tolls appeal time)
Haber v. V & R Joint Venture, 263 Neb. 529, 641 N.W.2d 31 (Neb. 2002) (notice of appeal ineffective where postjudgment motions remained pending and no announced final disposition existed)
State v. Brown, 12 Neb. App. 940, 687 N.W.2d 203 (Neb. Ct. App. 2004) (nonexhaustive examples of what qualifies as an announcement under the appeal-timing statute)