Clarke v. First Nat. Bank of Omaha
296 Neb. 632
| Neb. | 2017Background
- Hilda Graham and Linda Clarke opened a joint-ownership bank account (CD) at First National Bank of Omaha (FNB) as a multiparty account with rights of survivorship.
- Hilda telephoned the bank and requested the account be converted to a single-party account with a pay-on-death beneficiary naming Gregg Graham; a bank employee changed the account in the system without a signed written change being returned as required by bank policy and Neb. Rev. Stat. § 30-2724(a).
- Hilda died; the bank paid the CD proceeds to Gregg Graham based on the changed records, and Clarke sued FNB claiming she was the rightful owner of the CD.
- The district court entered summary judgment sustaining Clarke’s motion against FNB and granting FNB summary judgment against Graham; Graham filed a postjudgment pleading titled “Motion for New Trial to Amend Judgment of Summary Judgment Order.”
- Graham filed a notice of appeal before the district court entered its written order denying his postjudgment motion; the question presented is whether that premature notice of appeal conferred appellate jurisdiction.
Issues
| Issue | Plaintiff's Argument (Graham) | Defendant's Argument (FNB/Clarke) | Held |
|---|---|---|---|
| Whether Graham’s postjudgment motion tolled the 30‑day appeal period under Neb. Rev. Stat. § 25‑1912 | The motion (labeled new trial) effectively sought reconsideration/alteration of judgment, so it tolled the appeal period | The motion was either improper (new trial after summary judgment) or did not create an effective tolling that saved the prematurely filed notice | Court: The motion was functionally a motion to alter/amend and was timely, so it terminated the initial 30‑day appeal period |
| Whether a notice of appeal filed before the court’s announced ruling on the postjudgment motion is effective under the § 25‑1912 savings clause | Graham asserted the judge’s bailiff orally announced denial before his notice was filed, invoking the savings clause treating the notice as filed on entry | FNB argued there is no record evidence of an official announcement; thus the notice was premature and without effect | Court: Record lacked evidence of an official announcement; savings clause did not apply; the notice filed before entry was without effect |
| What qualifies as an "announcement" under § 25‑1912 for the savings clause to apply | Graham pointed to alleged oral communications from the court’s bailiff as an announcement | FNB required an official, record-supported announcement (bench proclamation, docket note, or journal entry) | Court: Announcement requires public/official notification (e.g., bench statement, docket notes, file-stamped/unsigned or signed journal entries); hearsay/paralegal affidavit did not suffice |
| Whether appellate court has jurisdiction given the premature notice | Graham argued the notice should be treated as filed on the date of entry under the savings clause | FNB argued the premature filing deprived the appellate court of jurisdiction | Court: Without an effective notice, appellate jurisdiction not vested; appeal dismissed |
Key Cases Cited
- Dale Electronics, Inc. v. Federal Ins. Co., 203 Neb. 133, 277 N.W.2d 572 (trial-court announcement can make a subsequent pre-entry notice effective)
- Reutzel v. Reutzel, 252 Neb. 354, 562 N.W.2d 351 (holding that pre-entry notice filed after postjudgment motion was of no effect under amended statute)
- Despain v. Despain, 290 Neb. 32, 858 N.W.2d 566 (unsigned journal entry sent to parties qualified as an announcement under related statute)
- Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1, 701 N.W.2d 320 (motion for reconsideration is functionally 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 (no effect when notice filed while not all postjudgment motions were finally disposed of)
- Cain v. Custer County Board of Equalization, 291 Neb. 730, 868 N.W.2d 334 (statutory interpretation principles cited)