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

Background

Hilda Graham and Linda Clarke opened a joint account with rights of survivorship; Hilda later contacted FNB to change it to a single-party account naming Gregg Graham as POD beneficiary. FNB’s employee changed the account without a signed written agreement on file. Hilda died and the CD proceeds were paid to Gregg.
Clarke sued FNB claiming ownership of the CD; FNB filed a third-party claim against Gregg for recovery to the extent FNB was liable to Clarke.
The district court entered summary judgment on February 1, 2016: judgment for Clarke against FNB and for FNB against Gregg.
Gregg filed a “Motion for New Trial to Amend Judgment” on February 5, 2016, then filed a notice of appeal on February 9, 2016, before the court entered its written order denying the postjudgment motion on February 12, 2016.
FNB moved to dismiss the appellate proceeding for lack of jurisdiction under Neb. Rev. Stat. § 25-1912(3), arguing Gregg’s notice was premature and therefore ineffective; the Nebraska Supreme Court ultimately dismissed the appeal for lack of jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a motion for new trial filed after summary judgment terminates the 30-day appeal period	Gregg treated his motion for new trial as timely and contended it operated to toll the appeal period	FNB argued that a new-trial motion after summary judgment is improper and does not toll the appeal period	Court: The motion, though titled "new trial," sought reconsideration/alteration of the judgment and was functionally a timely motion to alter or amend, so it tolled the appeal period
Whether a notice of appeal filed before the court’s announced ruling on a postjudgment motion is effective under § 25-1912(3)’s savings clause	Gregg claimed the judge (via bailiff) had announced denial before his notice, invoking the savings clause so his Feb 9 notice should be treated as filed on Feb 12	FNB argued no official announcement appears in the record and § 25-1912(3) renders a notice filed before the court rules on a timely postjudgment motion ineffective	Court: The savings clause applies only when the notice on its face relates to an announced decision and the record shows a subsequent entry consistent with that announcement; Gregg’s record lacked an official announcement, so his Feb 9 notice was without effect
What constitutes an "announcement" for purposes of the savings clause	Gregg relied on paralegal/bailiff communications and an unsigned letter as constituting an announcement	FNB argued informal communications are insufficient; an announcement must be an official/public court proclamation or equivalent record entry	Court: An announcement can be oral from the bench or official docket/journal entries (including file-stamped but unsigned entries); informal communications (bailiff statements, unsigned correspondence not in record) were insufficient here
Whether the appellate court had jurisdiction over the appeal	Gregg argued the notice should be saved by § 25-1912(3) and treated as filed on the date of the entered ruling	FNB argued the notice was premature and thus ineffective, leaving no timely appeal	Court: Because Gregg’s notice was filed before the court ruled and the record does not show an official announcement, the notice had no effect; appeal dismissed for lack of jurisdiction

Key Cases Cited

Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1 (reconsideration motion equated with motion to alter or amend judgment)
Despain v. Despain, 290 Neb. 32 (unsigned journal entry sent to parties can constitute an announcement for timing rules)
Dale Electronics, Inc. v. Federal Ins. Co., 203 Neb. 133 (notice of appeal filed after announcement but before entry may be effective if record supports it)
Reutzel v. Reutzel, 252 Neb. 354 (prior holding that a notice filed after filing a postjudgment motion but before the court’s ruling was ineffective; later superseded by statutory amendment)
Haber v. V & R Joint Venture, 263 Neb. 529 (notice of appeal ineffective where court had not finally disposed of all postjudgment motions)