Clarke v. First Nat. Bank of Omaha , 296 Neb. 632 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/30/2017 01:11 AM CDT
- 632 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
CLARKE v. FIRST NAT. BANK OF OMAHA
Cite as 296 Neb. 632
Linda Clarke, appellee, v. First National
Bank of Omaha, defendant and third -party
plaintiff, appellee, and Gregg Graham,
third -party defendant, appellant.
___ N.W.2d ___
Filed May 12, 2017. No. S-16-146.
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 pre-
sented for review, it is the power and duty of an appellate court to deter-
mine 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 ter-
minates 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 announce-
ment 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 postjudg-
ment motion timely and effective, and (2) Was the notice of appeal
- 633 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
CLARKE v. FIRST NAT. BANK OF OMAHA
Cite as 296 Neb. 632
filed after the court announced its decision or order on the postjudg-
ment 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 (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
(1979), is of no effect and on its holding that the savings clause adopted
in Dale Electronics, Inc., does not apply to § 25-1912.
- 634 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
CLARKE v. FIRST NAT. BANK OF OMAHA
Cite as 296 Neb. 632
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.
H eavican, C.J., Wright, Cassel, Stacy, K elch, 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
- 635 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
CLARKE v. FIRST NAT. BANK OF OMAHA
Cite as 296 Neb. 632
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 tes-
tified 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 pay-
ment 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 recov-
ery 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 sum-
mary judgment against Clarke and, in the alternative, against
Graham.
The following timeline includes the relevant dates to this
appeal:
- 636 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
CLARKE v. FIRST NAT. BANK OF OMAHA
Cite as 296 Neb. 632
• 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, there-
fore, 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 statu-
tory 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) find-
ing that there was no evidence that the account agreement
was actually signed and returned by Hilda, (2) finding that the
1
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
- 637 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
CLARKE v. FIRST NAT. BANK OF OMAHA
Cite as 296 Neb. 632
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
[1] A question of jurisdiction is a question of law.2
[2] Statutory interpretation presents a question of law.3
[3] Appellate courts independently review questions of law
decided by a lower court.4
ANALYSIS
[4] 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, irrespec-
tive of whether the issue is raised by the parties.5
[5,6] Under § 25-1912, to vest an appellate court with juris-
diction, 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
[7] Section 25-1912(3) provides a savings clause for a notice
of appeal filed after the announcement of the court’s decision
2
Cain v. Custer Cty. Bd. of Equal., 291 Neb. 730, 868 N.W.2d 334 (2015).
3
RM Campbell Indus. v. Midwest Renewable Energy, 294 Neb. 326, 886
N.W.2d 240 (2016).
4
Douglas County v. Archie, 295 Neb. 674, 891 N.W.2d 93 (2017).
5
State v. Thieszen, 295 Neb. 293, 887 N.W.2d 871 (2016).
6
See, also, Despain v. Despain, 290 Neb. 32, 858 N.W.2d 566 (2015).
7
§ 25-1912(1).
8
§ 25-1912(3).
9
Id.
- 638 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
CLARKE v. FIRST NAT. BANK OF OMAHA
Cite as 296 Neb. 632
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 ter-
minating 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
[8] Accordingly, we must consider two questions to deter-
mine 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 A lter or
A mend Which Terminated Time
to File Notice of A ppeal
[9,10] 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
10
Id. (emphasis supplied).
11
Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1, 701 N.W.2d
320 (2005), abrogated, Kennedy v. Plan Administrator for DuPont Sav.
and Investment Plan, 555 U.S. 285, 129 S. Ct. 865, 172 L. Ed. 2d 662
(2009).
- 639 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
CLARKE v. FIRST NAT. BANK OF OMAHA
Cite as 296 Neb. 632
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 judg-
ment is not a proper motion and does not terminate the 30-day
period to file a notice of appeal under § 25-1912.13
[11-13] 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 post-
judgment 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
[14] 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 fur-
ther held that a motion for reconsideration is the functional
equivalent of a motion to alter or amend a judgment, which
12
Id.
13
See, Despain, supra note 6; Strong, supra note 11.
14
See Neb. Rev. Stat. § 25-1329 (Reissue 2016).
15
See Diversified Telecom Servs. v. Clevinger, 268 Neb. 388, 683 N.W.2d
338 (2004).
16
Strong, supra note 11.
17
See § 25-1329.
18
Strong, supra note 11, 270 Neb. at 6, 701 N.W.2d at 326.
19
Id.
- 640 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
CLARKE v. FIRST NAT. BANK OF OMAHA
Cite as 296 Neb. 632
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 sum-
mary dismissal. Therefore, the motion was timely filed and
terminated the 30-day period to appeal.
Graham’s Notice of A ppeal Was Without
Effect Because It Was Filed Before
Court A nnounced Its Decision on
Graham’s Postjudgment Motion
FNB argues that under § 25-1912(3), a notice of appeal is
without effect when it is filed before the court enters an order
on a timely postjudgment motion, citing Haber v. V & R Joint
Venture21 and Reutzel v. Reutzel.22 Further, it contends that
there is no evidence on the record, other than Graham’s allega-
tions, that the court had actually ruled on Graham’s motion for
new trial.
Graham contends that § 25-1912(3) has been amended since
our decision in Reutzel to include the savings clause dis-
cussed above. He further contends that the district court judge
announced the denial of his motion for new trial through her
bailiff prior to the filing of his notice of appeal.
Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpretation
20
Id.
21
Haber v. V & R Joint Venture, 263 Neb. 529, 641 N.W.2d 31 (2002).
22
Reutzel v. Reutzel, 252 Neb. 354, 562 N.W.2d 351 (1997).
- 641 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
CLARKE v. FIRST NAT. BANK OF OMAHA
Cite as 296 Neb. 632
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.23
The Legislature has not defined “announces” in § 25-1912(3).
The word “announcement” is also used in § 25-1912(2) and
Neb. Rev. Stat. § 25-1144.01 (Reissue 2016), which latter
is the statute setting forth the time to file a motion for new
trial. However, neither statute nor any related statutes define
announcement.
Section 25-1912(2) states:
A notice of appeal or docket fee filed or deposited after
the announcement of a decision or final order but before
the entry of the judgment, decree, or final order shall be
treated as filed or deposited after the entry of the judg-
ment, decree, or final order and on the date of entry.
Section 25-1144.01, which is mentioned in § 25-1912, pro-
vides, in relevant part, that “[a] motion for a new trial filed
after the announcement of a verdict or decision but before the
entry of judgment shall be treated as filed after the entry of
judgment and on the day thereof.”
In Despain v. Despain,24 the appellant filed a motion for
new trial after the court distributed an unsigned journal entry
containing its substantive decision, but before the court filed
the signed dissolution decree. The unsigned journal entry
contained the following statements: “‘In order to avoid con-
fusion as to appeal time, [t]his order shall be forwarded to
counsel both unsigned and unfiled. A signed copy will be
filed contemporaneously with the entry of the decree.’”25 The
court subsequently overruled the motion for new trial, and the
appellant filed a notice of appeal.26
The appellee argued that the motion for new trial was
untimely and without effect because it was filed before the
23
In re Interest of Tyrone K., 295 Neb. 193, 887 N.W.2d 489 (2016).
24
See Despain, supra note 6.
25
Id. at 35, 858 N.W.2d at 569.
26
Despain, supra note 6.
- 642 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
CLARKE v. FIRST NAT. BANK OF OMAHA
Cite as 296 Neb. 632
court entered its decree.27 Accordingly, the appellee contended
that a notice of appeal filed more than 30 days after the decree
was entered was not timely and that we, therefore, lacked
jurisdiction over the appeal.28
We rejected the appellee’s argument and determined that
based on the plain language of § 25-1144.01, the copies of
the “unsigned journal entry . . . sent to the parties [were] the
court’s ‘announcement of a . . . decision’ as that expression is
used in § 25-1144.01.”29
Justice Cassel wrote separately to concur with our decision
in Despain, noting that even with the savings clause set forth
in § 25-1144.01, a premature motion for new trial is still pos-
sible “[i]f the motion is filed before the ‘announcement’ of the
verdict or decision” and that such a motion would be a nul­
lity.30 Justice Cassel’s reasoning leads to the same conclusion
in the context of § 25-1912(3).
The Court of Appeals has also considered what qualifies as
an announcement under § 25-1912(2). In State v. Brown,31 the
Court of Appeals provided a nonexhaustive list of statements
that constitute an announcement of a decision or order: those
“orally from the bench, from trial docket notes, file-stamped
but unsigned journal entries, or signed journal entries which
are not file stamped.”
We are also informed by the ordinary meanings of
“announce” and “announcement.” Black’s Law Dictionary
defines “announce” as “[t]o make publicly known; to proclaim
formally .”32
27
Id.
28
Id.
29
Id. at 40, 858 N.W.2d at 572.
30
Id. at 46, 858 N.W.2d at 576 (Cassel, J., concurring).
31
State v. Brown, 12 Neb. Ct. App. 940, 941, 687 N.W.2d 203, 206 (2004).
32
Black’s Law Dictionary 109 (10th ed. 2014). See, also, “Announce,”
Oxford English Dictionary Online, http://www.oed.com/view/Entry/7931
(last visited May 2, 2017) (“to make public or official intimation of, to
proclaim”).
- 643 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
CLARKE v. FIRST NAT. BANK OF OMAHA
Cite as 296 Neb. 632
The Oxford English Dictionary defines “announcement” as
“[t]he action or process of announcing; public or official noti-
fication, intimation, declaration.”33
[15,16] Based on our prior holdings and the preceding defi-
nitions, it is clear that a judge’s proclamation from the bench
is an announcement. However, an announcement is not limited
to statements from the bench. An announcement may also
include trial docket notes, file-stamped but unsigned journal
entries, or signed journal entries which are not file stamped.
It is clear that making an announcement requires some type
of public or official notification, as the ordinary meaning of
“announce” requires.
[17] In Dale Electronics, Inc. v. Federal Ins. Co.,34 we held
that a notice of appeal filed after the court announced its deci-
sion by letter, but before it had entered its decision, was timely.
Specifically, we stated:
[A] notice of appeal filed after the trial court has
announced its decision, but before a judgment has been
rendered or entered, is effective to confer jurisdiction on
this court if the notice of appeal shows on its face that
it relates to the decision which has been announced by
the trial court and the record shows that a judgment was
subsequently rendered or entered in accordance with the
decision which was announced and to which the notice of
appeal relates.35
After our decision in Dale Electronics, Inc., the Legislature
added § 25-1912(2) (Reissue 1995) (now codified as
§ 25-1912(3) (Reissue 2016)36), but without the savings
clause.37 The revised language was as follows:
33
“Announcement,” Oxford English Dictionary Online, http://www.oed.com/
view/Entry/7933 (last visited May 2, 2017).
34
Dale Electronics, Inc. v. Federal Ins. Co., 203 Neb. 133, 277 N.W.2d 572
(1979).
35
Id. at 137, 277 N.W.2d at 574.
36
See 2000 Neb. Laws, L.B. 921, § 15.
37
See 1997 Neb. Laws, L.B. 398, § 1.
- 644 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
CLARKE v. FIRST NAT. BANK OF OMAHA
Cite as 296 Neb. 632
The running of the time for filing a notice of appeal shall
be terminated as to all parties (a) by a motion for a new
trial . . . , and the full time for appeal fixed in subsec-
tion (1) of this section commences to run from the entry
of the order ruling upon the motion filed pursuant to
subdivision (a) . . . of this subsection. 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
entry of the order ruling upon the motion shall have no
effect, whether filed before or after the timely filing of the
motion. A new notice of appeal shall be filed within the
prescribed time from the ruling on the motion. No addi-
tional fees shall be required for such filing.38
We then interpreted the amended version of § 25-1912(2)
(Reissue 1995) in Reutzel v. Reutzel39 and determined that
our holding in Dale Electronics, Inc. was superseded by the
new statutory language. We held that the appellant’s notice
of appeal, filed after the filing of a motion for new trial but
before the court had entered its ruling on the motion, was of
no effect.
[18] However, in 1997, the Legislature added the savings
clause to § 25-1912(3) (Cum. Supp. 1998). The savings clause
is substantively similar to our statement in Dale Electronics,
Inc.40 As a result, we determine that our holding in Reutzel has
been superseded by statute and our holding in Dale Electronics,
Inc. again has merit.
FNB also references Haber in support of its jurisdictional
argument. However, Haber is not informative, insofar as it
is procedurally distinguished. In Haber, the appellant filed
a notice of appeal after the court had overruled one party’s
motion for new trial and partially overruled the other party’s
38
§ 25-1912(2) (Reissue 1995) (emphasis supplied).
39
Reutzel, supra note 22.
40
Dale Electronics, Inc., supra note 34.
- 645 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
CLARKE v. FIRST NAT. BANK OF OMAHA
Cite as 296 Neb. 632
motion for new trial.41 We held that the notice of appeal was
of no effect because the court had not finally disposed of all
postjudgment motions. There was no claim that the court had
announced its final disposition of the motion for new trial
before the notice of appeal was filed.
[19,20] Further, it is the appellant’s burden to create a record
for the appellate court which supports the errors assigned.42
This burden also requires that the record establish the appellate
court’s basis for jurisdiction over the appeal.43 Additionally, a
party’s brief may not expand the evidentiary record.44
Here, Graham argues that the savings clause treats his notice
of appeal as filed on the date of the court’s entry overruling his
postjudgment motion, February 12, 2016. The only evidence in
the record that an announcement was made was the “Affidavit
in Opposition” to Clarke’s motion for summary dismissal filed
by Graham’s counsel. This affidavit indicates that between
February 5 and 9, the paralegal for Graham’s counsel was
informed by the bailiff that the motion for new trial would be
overruled because a motion for new trial was not allowed to
challenge a summary judgment.
The unsigned letter that Graham purportedly sent the court
on February 11, 2016, contends that Graham’s attorney was
told by the bailiff that his motion for new trial was not allowed
to challenge a summary judgment. This correspondence is not
evidence, as it was merely attached to the pleading filed in
opposition to the motion for summary dismissal.
Graham also alleges, for the first time in his brief on appeal,
that the date of the announcement was February 7 or 8, 2016.
This statement from Graham’s brief may not expand the evi-
dentiary record.
41
Haber, supra note 21.
42
In re Interest of Tyrone K., supra note 23.
43
Despain, supra note 6 (Cassel, J., concurring).
44
In re Estate of Baer, 273 Neb. 969, 735 N.W.2d 394 (2007).
- 646 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
CLARKE v. FIRST NAT. BANK OF OMAHA
Cite as 296 Neb. 632
We find that the record presented by Graham is insuffi-
cient to determine whether any statement made to him was
made as an official announcement by the court. Therefore,
we cannot determine that an announcement was made which
was sufficient to invoke the savings clause of § 25-1912(3)
(Reissue 2016).
CONCLUSION
Because Graham filed his notice of appeal before the court
ruled on his timely motion to alter or amend the judgment,
his notice of appeal was without effect. Therefore, we dismiss
this appeal for lack of jurisdiction.
A ppeal dismissed.
Miller-Lerman, J., not participating.