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 Feb 2013; Hilda later called FNB to change the account to single-party with Gregg Graham as pay-on-death beneficiary.
- FNB employee changed the account in the bank’s system without a signed written change form; bank records showed Graham as beneficiary and Clarke was excluded.
- Hilda died Sept 2013; FNB paid the CD proceeds to Graham; Clarke sued FNB claiming ownership.
- District court entered summary judgment in favor of Clarke against FNB and in favor of FNB against Graham on Feb 1, 2016.
- Graham filed a postjudgment “motion for new trial/to amend judgment” on Feb 5, 2016, then filed a notice of appeal on Feb 9, 2016, before the court’s written order denying his motion was entered on Feb 12, 2016.
Issues
| Issue | Plaintiff's Argument (Graham) | Defendant's Argument (FNB / Clarke) | Held |
|---|---|---|---|
| Whether Graham's postjudgment motion tolled the 30‑day appeal period | Motion for new trial was effectively a motion to alter or amend, so tolling applied; his notice should be treated as filed on entry of later order | Notice of appeal was premature because it was filed before the court ruled and thus had no effect under § 25‑1912(3) | Motion was functionally a motion to alter/amend and tolled the appeal period, but Graham’s notice was filed before any official announcement/ruling and was therefore without effect because the record lacks proof of an earlier announcement invoking the savings clause |
| Whether a judge’s oral/advisory statements (via bailiff) can qualify as an "announcement" under § 25‑1912(3) to save a premature notice | Bailiff’s statements (as relayed) announced the denial; savings clause should apply | Only official public/recorded announcements (bench oral ruling, docket notes, file‑stamped or unsigned journal entries) suffice; informal communications do not | Court requires an official announcement in the record; informal notice via bailiff/unsworn correspondence insufficient, so savings clause not invoked |
| Whether a motion for new trial is proper after summary judgment | Motion was a request to reconsider grant of summary judgment and thus should be treated as a timely motion to alter/amend | A new‑trial motion is not proper after summary judgment in form; relief sought controls characterization | Postjudgment motion was substantively a motion to alter/amend (so it tolled) but characterization does not save Graham’s premature notice absent record proof of announcement |
| Whether appellate court has jurisdiction over Graham’s appeal | Notice should be treated as filed on Feb 12 under the savings clause if an announcement occurred | Without an effective notice (filed after announcement or after entry on ruling), appellate court lacks jurisdiction | Appeal dismissed for lack of jurisdiction because notice was filed before a recorded announcement or entry disposing of the timely postjudgment motion |
Key Cases Cited
- Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1 (motion for reconsideration is functional equivalent of motion to alter/amend judgment)
- Reutzel v. Reutzel, 252 Neb. 354 (statutory amendment later superseded earlier Dale Electronics holding regarding notices filed after announcement)
- Dale Electronics, Inc. v. Federal Ins. Co., 203 Neb. 133 (notice of appeal filed after announcement but before entry may be effective if notice references announced decision and judgment is subsequently entered accordingly)
- Despain v. Despain, 290 Neb. 32 (unsigned journal entry distributed to parties can constitute an announcement for timing purposes)
- Haber v. V & R Joint Venture, 263 Neb. 529 (notice of appeal ineffective when court had not finally disposed of all postjudgment motions)