Clarke v. First Nat'l Bank of Omaha

296 Neb. 632

895 N.W.2d 284

Linda CLARKE, appellee,

v.FIRST NATIONAL BANK OF OMAHA, defendant and third-party plaintiff, appellee, and Gregg Graham, third-party defendant, appellant.

No. S-16-146

Supreme Court of Nebraska.

Filed May 12, 2017.

Norman Denenberg, Omaha, for appellant.

Susan J. Spahn, of Endacott, Peetz & Timmer, P.C., L.L.O., Omaha, 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 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:

• 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 would be vacated because a motion for a new trial is not allowed to challenge an order of summary judgment.

In response to the motion for summary dismissal, Graham's attorney filed an "Opposition" and an "Affidavit in Opposition" to the motion for summary dismissal. Attached to the "Opposition" was an unsigned correspondence dated February 11, 2016, from Graham's counsel to the bailiff. The letter indicated that Graham's counsel had filed a motion for new trial; that a hearing date had been set; that he had been advised by the bailiff that his motion for new trial was not allowed to challenge a summary judgment; and that as a result, he had filed a notice of appeal.

The Court of Appeals overruled the motion for summary dismissal. We moved this case to our docket under our statutory authority to regulate the caseloads of the appellate courts of this state.¹

ASSIGNMENTS OF ERROR

Graham assigns, restated, that the court erred in (1) finding that there was no evidence that the account agreement was actually signed and returned by Hilda, (2) finding that the funds from the CD in the Account were erroneously released to him, and (3) not applying Neb. U.C.C. § 3-309 (Cum. Supp. 2016) to enforce the lost or destroyed signature card.

STANDARD OF REVIEW

A question of jurisdiction is a question of law.²

Statutory interpretation presents a question of law.³

Appellate courts independently review questions of law decided by a lower court.⁴

ANALYSIS

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

Under § 25-1912, to vest an appellate court with jurisdiction, a party must timely file a notice of appeal.⁶ A party must file a notice of appeal within 30 days of the judgment, decree, or final order from which the party is appealing.⁷ However, filing a timely motion for a new trial or a timely motion to alter or amend a judgment terminates the time in which a notice of appeal must be filed.⁸ Instead, the 30-day period to appeal starts anew upon the entry of the order ruling upon the motion for a new trial or the motion to alter or amend a judgment.⁹

Section 25-1912(3) 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. In relevant part, it states:

When any motion terminating the time for filing a notice of appeal is timely filed by any party, a notice of appeal filed before the court announces its decision upon the terminating motion shall have no effect, whether filed before or after the timely filing of the terminating motion. A new notice of appeal shall be filed within the prescribed time after the entry of the order ruling on the motion.... A notice of appeal filed after the court announces its decision or order on the terminating motion but before the entry of the order is treated as filed on the date of and after the entry of the order .¹⁰

Accordingly, we must consider two questions to determine if Graham's notice of appeal was timely. First, we must decide whether Graham's motion for new trial in response to the order granting summary judgment terminated the 30-day appeal period. Second, if the motion did terminate the 30-day appeal period, we must decide whether Graham's notice of appeal was filed after the court announced its decision or order on the postjudgment motion.

GRAHAM'S MOTION FOR NEW TRIAL WAS EFFECTIVELY MOTION TO ALTER OR AMEND WHICH TERMINATED TIME TO FILE NOTICE OF APPEAL

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.¹¹ Summary judgment proceedings do not resolve factual issues, but instead determine whether there is a material issue of fact in dispute.¹² Therefore, 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 § 25-1912.¹³

However, our statutes do not clearly define the grounds for filing a motion to alter or amend a judgment, unlike a motion for new trial.¹⁴ Accordingly, we review a postjudgment motion based on the relief it seeks, rather than its title.¹⁵ If the 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.¹⁶ A motion to alter or amend a judgment must be filed no later than 10 days after the entry of judgment.¹⁷

In Strong v. Omaha Constr. Indus. Pension Plan,¹⁸ the appellant filed a motion for new trial after the entry of an order for summary judgment. The motion for new trial sought " 'an Order granting a new trial' and any other 'relief deemed equitable and just' " because "there were irregularities in the proceedings and ... the court erred on questions of law." We stated that "[i]n effect, [the appellant had] requested that the court reconsider its grant of summary judgment."¹⁹ We further held that a motion for reconsideration is the functional equivalent of a motion to alter or amend a judgment, which terminates the period in which a party must file a notice of appeal.²⁰

Graham's motion for new trial requested that the court vacate its decisions granting summary judgment and hold a trial to resolve the genuine issues of material fact. Graham based his request on numerous grounds, including a claim of irregularities in the proceedings and a claim that the order was contrary to law. Accordingly, Graham's motion for new trial was, in effect, a motion for reconsideration, which we treat as a motion to alter or amend the judgment.

Graham filed his motion 4 days after the court granted summary dismissal. Therefore, the motion was timely filed and terminated the 30-day...