§ 25-1329 — Motion; when filed; filing before entry of judgment; treatment

Nebraska § 25-1329

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

A motion to alter or amend a judgment shall be filed no later than ten days after the entry of the judgment. A motion to alter or amend a judgment 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.

Legislative History

Source: Laws 2000, LB 921, § 7; Laws 2004, LB 1207, § 5. Annotations: 1. What constitutes motion 2. Judgment 3. Miscellaneous 1. What constitutes motion A motion for reconsideration is the functional equivalent of a motion to alter or amend a judgment. Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017). In determining what qualifies as a motion to alter or amend a judgment, the key is not the motion's title. If the motion seeks 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. Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1, 701 N.W.2d 320 (2005). A motion which seeks a new hearing based on newly discovered evidence may be treated as a motion to alter or amend a judgment. Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672 (2004). A motion which seeks a substantive alteration of an order may be treated as a motion to alter or amend the judgment under this section. A timely motion under this section tolls the time for filing a notice of appeal. Central Neb. Pub. Power v. Jeffrey Lake Dev., 267 Neb. 997, 679 N.W.2d 235 (2004). A determination as to whether a motion, however titled, should be deemed a motion to alter or amend a judgment depends upon the contents of the motion, not its title. In order to qualify for treatment as a motion to alter or amend a judgment, a motion must be filed no later than 10 days after the entry of judgment and must seek substantive alteration of the judgment. A motion which merely seeks to correct clerical errors or one seeking relief that is wholly collateral to the judgment is not a motion to alter or amend a judgment, and the time for filing a notice of appeal runs from the date of the judgment. State v. Bellamy, 264 Neb. 784, 652 N.W.2d 86 (2002). In order to qualify for treatment as a motion to alter or amend a judgment, a motion must be filed no later than ten days after the entry of judgment and must seek substantive alteration of the judgment. Kotas v. Barnett, 31 Neb. App. 799, 990 N.W.2d 37 (2023). In order to qualify for treatment as a motion to alter or amend a judgment, the motion must be filed no later than 10 days after the entry of judgment, as required under this section, and must seek substantive alteration of the judgment. Bayliss v. Clason, 26 Neb. App. 195, 918 N.W.2d 612 (2018). Under this section, a motion for reconsideration is the functional equivalent of a motion to alter or amend a judgment. Bayliss v. Clason, 26 Neb. App. 195, 918 N.W.2d 612 (2018). Under this section, 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. Bayliss v. Clason, 26 Neb. App. 195, 918 N.W.2d 612 (2018). In order to qualify for treatment as a motion to alter or amend the judgment, the motion must be filed no later than 10 days after the entry of judgment, as required under this section, and must seek substantive alteration of the judgment. Beckman v. McAndrew, 16 Neb. App. 217, 742 N.W.2d 778 (2007). 2. Judgment A judgment entered by the district court at the conclusion of an error proceeding pursuant to sections 25-1901 to 25-1908 is a judgment within the meaning of this section. McEwen v. Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d 120 (2019). A "judgment," for purposes of a motion to alter or amend a judgment pursuant to this section, is the final determination of the rights of the parties in an action, or a court's final consideration and determination of the respective rights and obligations of the parties to an action as those rights and obligations presently exist. Timmerman v. Neth, 276 Neb. 585, 755 N.W.2d 798 (2008). A "judgment," for purposes of this section, does not include an appellate decision of a district court. Timmerman v. Neth, 276 Neb. 585, 755 N.W.2d 798 (2008). 3. Miscellaneous A second motion to reconsider a final order entered 11 days earlier did not terminate the time for filing a notice of appeal, and because appellant did not appeal within 30 days of the overruling of his first motion to reconsider—which was properly construed as a motion to alter or amend—the appellate court lacked jurisdiction over the appeal. Bryson L. v. Izabella L., 302 Neb. 145, 921 N.W.2d 829 (2019). A motion to alter or amend filed more than 10 days after the court's denial of a postconviction claim does not terminate or extend the time to appeal that denial. State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018). A letter that had been in the defendant's possession at all relevant times did not constitute newly discovered evidence for purposes of a motion to alter or amend the judgment. State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011). If, and only if, an amendment to a final judgment or decree affects the rights or obligations of the parties or creates a right of appeal that did not exist, a motion to alter or amend the amended judgment or decree terminates the running of the time for appeal from the original judgment or decree. Law Offices of Ronald J. Palagi v. Howard, 275 Neb. 334, 747 N.W.2d 1 (2008). A motion to alter or amend is not an appropriate motion to file after the decision of a district court where the district court is functioning as an intermediate court of appeals and the motion does not toll the time for filing a notice of appeal. Goodman v. City of Omaha, 274 Neb. 539, 742 N.W.2d 26 (2007). It was not an abuse of discretion for a trial court to grant a motion to alter or amend judgment where there was no new evidence adduced at a hearing on the motion and the effect of the action was to correctly reflect the original evidence. Russell v. Clarke, 15 Neb. App. 221, 724 N.W.2d 840 (2006).