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Clarke v. First National Bank of Omaha

Supreme Court of Nebraska

May 12, 2017

Linda Clarke, appellee,
v.
First National Bank of Omaha, defendant and third-party plaintiff, appellee, and Gregg Graham, third-party defendant, appellant.

         1. Jurisdiction. A question of jurisdiction is a question of law.

         2. Statutes. Statutory interpretation presents a question of law.

         3. Judgments: Appeal and Error. Appellate courts independently review questions of law decided by a lower court.

         4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties.

         5. Jurisdiction: Time: Notice: Appeal and Error. Under Neb. Rev. Stat. § 25-1912 (Reissue 2016), to vest an appellate court with jurisdiction, a party must timely file a notice of appeal.

         6. Judgments: Time: Notice: Appeal and Error. Under Neb. Rev. Stat. § 25-1912(3) (Reissue 2016), filing a timely postjudgment motion terminates the time in which a notice of appeal must be filed; instead, the 30-day period to appeal starts anew upon the entry of the order ruling upon the postjudgment motion.

         7. ___: ___: ___: ___. Neb. Rev. Stat. § 25-1912(3) (Reissue 2016) provides a savings clause for a notice of appeal filed after the announcement of the court's decision on a timely postjudgment motion but before a ruling thereon has been entered; the notice of appeal is treated as filed on the date of and after the entry of the order.

         8. ___: ___: ___: ___. Under Neb. Rev. Stat. § 25-1912 (Reissue 2016), to determine if a notice of appeal filed before the court has entered an order or judgment on a postjudgment motion is effective, an appellate court must answer two questions: (1) Was the postjudgment motion timely and effective, and (2) Was the notice of appeal [296 Neb. 633] filed after the court announced its decision or order on the postjudgment motion?

         9. New Trial: Words and Phrases. Under Neb. Rev. Stat. § 25-1142 (Reissue 2016), a new trial is a reexamination in the same court of an issue of fact after a verdict by a jury, a report of a referee, or a trial and decision by the court.

         10. Summary Judgment: Motions for New Trial: Time: Notice: Appeal and Error. A motion for new trial following the entry of summary judgment is not a proper motion and does not terminate the 30-day period to file a notice of appeal under Neb. Rev. Stat. § 25-1912 (Reissue 2016).

         11. Pleadings: Judgments. Neb. Rev. Stat. § 25-1329 (Reissue 2016) does not clearly define the grounds for filing a motion to alter or amend a judgment.

         12. Pleadings: Judgments: Appeal and Error. An appellate court reviews a postjudgment motion based on the relief it seeks, rather than its title.

         13. Pleadings: Judgments. Under Neb. Rev. Stat. § 25-1329 (Reissue 2016), if a postjudgment motion seeks a substantive alteration of the judgment-as opposed to the correction of clerical errors or relief wholly collateral to the judgment-a court may treat the motion as one to alter or amend the judgment.

         14. ___: ___. Under Neb. Rev. Stat. § 25-1329 (Reissue 2016), a motion for reconsideration is the functional equivalent of a motion to alter or amend a judgment.

         15. Judges: Words and Phrases. A judge's proclamation from the bench is an announcement.

         16. Words and Phrases. An announcement may include trial docket notes, file-stamped but unsigned journal entries, or signed journal entries which are not file stamped.

         17. Judgments: Notice: Appeal and Error. For the savings clause in Neb. Rev. Stat. § 25-1912(3) (Reissue 2016) to be effective, the notice of appeal must show on its face that it relates to the decision which has been announced by the trial court and the record must show that a judgment was subsequently rendered or entered in accordance with the decision which was announced and to which the notice of appeal relates.

         18. Pleadings: Judgments: Appeal and Error. Under Neb. Rev. Stat. § 25-1912 (Reissue 2016), Reutzel v. Reutzel, 252 Neb. 354, 562 N.W.2d 351');">562 N.W.2d 351 (1997), has been superseded on its holding that a portion of Dale Electronics, Inc. v. Federal Ins. Co., 203 Neb. 133, 277 N.W.2d 572');">277 N.W.2d 572 (1979), is of no effect and on its holding that the savings clause adopted in Dale Electronics, Inc., does not apply to § 25-1912.

         [296 Neb. 634] 19. Records: Appeal and Error. It is the appellant's burden to create a record for the appellate court which supports the errors assigned.

         20. ___: ___. A party's brief may not expand the evidentiary record.

         Appeal from the District Court for Douglas County: Shelly R. Stratman, Judge. Appeal dismissed.

          Norman Denenberg for appellant.

          Susan J. Spahn, of Endacott, Peetz & Timmer, P.C., L.L.O., for appellee First National Bank of Omaha.

          Edward W. Hasenjager and Howard A. Kaiman for appellee Linda Clarke.

          Heavican, C.J., Wright, Cassel, Stacy, Kelch, and Funke, JJ.

          Funke, J.

         NATURE OF CASE

         Gregg Graham appealed from orders by the district court for Douglas County which granted summary judgment for appellee Linda Clarke against appellee First National Bank of Omaha (FNB) and in favor of FNB against Graham. Graham filed his notice of appeal after filing a motion for new trial but before the court had ruled on the motion.

         FNB filed a motion for summary dismissal arguing that the Nebraska Court of Appeals lacked jurisdiction, under Neb. Rev. Stat. § 25-1912(3) (Reissue 2016). The Court of Appeals overruled the motion for summary dismissal. We dismiss the appeal for lack of jurisdiction because Graham's notice of appeal was filed prematurely and is, therefore, without effect.

         FACTS

         BACKGROUND

         In February 2013, Hilda Graham (Hilda) and Clarke opened an account (the Account) with FNB to hold a certificate of deposit (CD). The account agreement classified the Account as [296 Neb. 635] a multiparty account with rights of survivorship in both Hilda and Clarke. In August 2013, Hilda called FNB and spoke with Naomi Craven, an assistant branch manager. During the call, Hilda requested that the account be changed to a single-party account with a pay-on-death beneficiary, removing Clarke as the co-owner with a right of survivorship. Hilda requested that Graham be named the pay-on-death beneficiary.

         Despite FNB's internal procedure and Neb. Rev. Stat. § 30-2724(a) (Reissue 2016), each requiring signed written notice before changing an account's type, Craven made the change to the Account before Hilda signed a new account agreement. Craven claimed that she printed an updated account agreement for Hilda to sign and mailed it to her. Craven testified that she believed she saw Hilda's account agreement, signed, days later, but that the account agreement was not scanned into FNB's electronic document system and could not be located.

         Hilda died in September 2013. When Clarke requested payment of the CD from FNB, she was denied access because she was listed as neither a co-owner nor a pay-on-death beneficiary on the Account in FNB's computer records. Instead, Graham was paid the balance of the CD based on Craven's changes to the Account.

         PROCEDURAL HISTORY

         Clarke filed suit against FNB, alleging that she was the owner of the CD. FNB denied the allegations of Clarke's complaint but also filed a third-party action seeking recovery against Graham to the extent FNB was liable to Clarke. Clarke subsequently filed a motion for summary judgment against FNB, and as a result, FNB filed a motion for summary judgment against Clarke and, in the alternative, against Graham.

         The following timeline includes the relevant dates to this appeal:

[296 Neb. 636] • February 1, 2016: Clarke's motion for summary judgment against FNB and FNB's motion for summary judgment against Graham were sustained by written order of the court.
• February 5, 2016: Graham's "Motion for New Trial to Amend Judgment of Summary Judgment Order" was filed.
• February 9, 2016: Graham's notice of appeal was filed.

• February 12, 2016: The order denying Graham's motion for new trial was entered.

         FNB filed a motion for summary dismissal before the Court of Appeals, arguing that it lacked jurisdiction because Graham's notice of appeal was filed prematurely and, therefore, was without effect, under § 25-1912. In response, Graham argued that he filed the notice of appeal after the district court judge's bailiff had informed his attorney that his motion ...


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