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the name of the offense, as designated by the Legislature.10 The 

name of the crime does not change or affect its elements. And 

those elements control our review. When reviewing the sufficiency of the evidence to support a conviction, the relevant 

question for an appellate court is whether, after viewing the 

evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.11 Here, both elements of 

the crime were clearly established. And that should be the end 

of our inquiry. 

I would affirm Covey’s conviction. Therefore, I respectfully dissent.

Heavican, C.J., and Stephan, J., join in this diss

10 See § 28-638(1)(c).

11 State v. Nave, 284 Neb. 477, 821 N.W.2d 723 (2012).

First Tennessee Bank National Assoc

successor by merger to First Horiz

Home Loan Corporation, appel

v. Jason Newham, appellee

___ N.W.2d ___

Filed February 27, 2015. No. S-14-326.

1. Summary Judgment. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material 

fact or the ultimate inferences that may be drawn from those facts and that the 

moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an 

appellate court views the evidence in the light most favorable to the party against 

whom the judgment is granted and gives such party the benefit of all reasonable 

inferences deducible from the evidence.

3. Jurisdiction: Appeal and Error. It is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it.

4. Summary Judgment: Evidence: Proof. After the movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate 

that the movant is entitled to judgment if the evidence was uncontroverted at 

trial, the burden to produce evidence showing the existence of a material issue 

of fact that prevents judgment as a matter of law shifts to the party opposing 

the motion.
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Appeal from the District Court for Cass County: Jeffrey J

Funke, Judge. Affirmed

Brian J. Muench for appellant.

Edward F. Noethe and Michael G. Monday, of McGinn, 

McGinn, Springer & Noethe, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, 

Miller-Lerman, and Cassel,

Cassel, J

INTRODUCTION

A lender sued upon a promissory note. The district court 

determined that the action was barred by a California statute 

of limitations and entered summary judgment in the borrower’s favor. On appeal, the lender contends that the limitations 

period was tolled by either a California statute or a provision 

of the Servicemembers Civil Relief Act (SCRA).1 We affirm. 

The California tolling statute could not be applied against 

the borrower, a nonresident of California, without violating the Commerce Clause.2

 And the borrower’s membership 

in the National Guard provided no basis to toll the limitations period.

BACKGROUND

Jason Newham executed a promissory note dated 

September 8, 2005, in favor of First Horizon Home Loan 

Corporation in the amount of $182,000. Newham used the 

funds to refinance a prior mortgage on real property located 

in Dixon, California. At that time, Newham was a resident of 

California and “in active duty, Air Force,” stationed at Travis 

Air Force Base. Payments on the note were due on the first 

of every month, and the note was secured by a deed of trust 

for the property.

Sometime after execution of the note, First Horizon Home 

Loan Corporation merged with First Tennessee Bank National 

1 50 U.S.C. app. § 501 et seq. (2012).

2 U.S. Const. art. I, § 8, cl. 3.
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Association (First Tennessee). As a result, First Tennessee 

became the holder of the note.

Newham left California and vacated the property in May 

2007. He made his last payment on the note on August 6. 

He resided in Papillion, Nebraska, until September, when he 

moved to Kansas to work for an aircraft company as a demonstration pilot. Although Newham had joined the North Dakota 

National Guard in July 2007, he did not move to North Dakota 

until June 2009. With the North Dakota National Guard, he 

was “part-time for the first [2] years, and then . . . full-time, 

at the state level, for the last . . . almost [3] years.” Newham 

later moved to Minnesota, but he returned to Nebraska in 

June 2013.

On August 5, 2013, First Tennessee filed a complaint against 

Newham, alleging that he was in default on the note and seeking damages in the amount of $274,467.13, plus interest. In 

response, Newham moved for summary judgment and alleged 

that First Tennessee’s suit was barred by the statute of limitations. First Tennessee filed an amended complaint and alleged 

that Newham was an “absconding debtor.”

At the summary judgment hearing, Newham’s counsel argued that First Tennessee’s action was governed by 

California law and that First Tennessee had failed to bring 

the action within 4 years as required by Cal. Civ. Proc. Code 

§ 337 (West 2006). First Tennessee, however, asserted that the 

statute of limitations had been tolled by either Cal. Civ. Proc. 

Code § 351 (West 2006) or 50 U.S.C. app. § 526(a). As discussed in greater detail below, § 351 tolls the statute of limitations during the period of time that a defendant is outside of 

California and § 526(a) tolls the statute of limitations during 

the “period of a servicemember’s military service,” as defined 

by relevant federal law.

The district court also received various discovery into evidence, including Newham’s answers to interrogatories and 

his deposition testimony. As to his current employment status, Newham stated that he is a “part-time member” of the 

Nebraska Air National Guard. His position does not entail 

active duty status. When asked to provide the dates and duty 

stations of his periods of active duty, Newham indicated that 
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276 290 NEBRASKA REPORTS

his most recent period of active duty was from March 2005 to 

July 2007 at Travis Air Force Base.

As to his repayment of the note, Newham confirmed that 

he made his last payment on August 6, 2007, and that he “was 

in breach of the contract” as of September 2. Additionally, he 

testified that he never returned to California after he vacated 

the property.

On February 3, 2014, the district court entered summary 

judgment in Newham’s favor. In its order, the court determined 

that First Tennessee’s claim was governed by the California 

statute of limitations and that First Tennessee had failed to 

file suit within the 4-year limitations period. As to the tolling provision of Cal. Civ. Proc. Code § 351, the court concluded that, if applied against Newham, § 351 would violate 

the Commerce Clause of the U.S. Constitution. However, the 

court did not address the tolling provision of 50 U.S.C. app. 

§ 526(a).

First Tennessee moved for new trial and alleged that the district court erred in failing to apply § 526(a). Additionally, First 

Tennessee asserted that Newham had the burden to show that 

the application of § 351 would violate the Commerce Clause. 

And it alleged that applying § 351 would not result in any constitutional violation.

At the hearing on First Tennessee’s motion, the district court 

acknowledged that it had failed to consider § 526(a) in its summary judgment order. However, it clarified that in considering 

the statute of limitations, it had reviewed § 526(a) and concluded that it did not apply because Newham was not on active 

duty. The court explained that it did not set forth its analysis in 

the order, because it “did not believe it was relevant and necessary, based on the information.”

The district court overruled the motion for new trial, and 

First Tennessee filed a notice of appeal. We moved the case to 

our docket pursuant to statutory authority.3

3 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
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ASSIGNMENTS OF ERROR

First Tennessee assigns, consolidated and restated, that the 

district court erred in finding that the statute of limitations was 

not tolled by either (1) Cal. Civ. Proc. Code § 351 or (2) 50 

U.S.C. app. § 526(a).

STANDARD OF REVIEW

[1] Summary judgment is proper when the pleadings and 

evidence admitted at the hearing disclose no genuine issue 

regarding any material fact or the ultimate inferences that may 

be drawn from those facts and that the moving party is entitled 

to judgment as a matter of law.4

[2] In reviewing a summary judgment, an appellate court 

views the evidence in the light most favorable to the party 

against whom the judgment is granted and gives such party 

the benefit of all reasonable inferences deducible from 

the evidence.5

ANALYSIS

Jurisdictio

[3] We first dispose of a preliminary matter. Although neither party has alleged a jurisdictional defect, it is the duty of 

an appellate court to determine whether it has jurisdiction over 

the matter before it.6

After the district court entered summary judgment, First 

Tennessee timely filed a motion for new trial, which, despite 

its title, we treat as a motion to alter or amend the judgment.7

 The motion terminated the time for taking an appeal.8

4 Ballard v. Union Pacific RR. Co., 279 Neb. 638, 781 N.W.2d 47 (2010).

5 Id.

6 See In re Interest of Thomas M., 282 Neb. 316, 803 N.W.2d 46 (2011).

7 See Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1, 701 

N.W.2d 320 (2005), abrogated in part, Kennedy v. Plan Administrator for 

DuPont Sav. and Investment Plan, 555 U.S. 285, 129 S. Ct. 865, 172 L. 

Ed. 2d 662 (2009).

8 See id.
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First Tennessee’s notice of appeal was timely filed after the 

terminating motion was overruled. Thus, we have jurisdiction 

of the appeal.

California Law Ap

Having established our jurisdiction over the appeal, we turn 

to First Tennessee’s assignments of error. The parties agree 

that California law applies.

Neither party contests the conclusion that First Tennessee’s 

claim was governed by the 4-year limitations period of Cal. 

Civ. Proc. Code § 337. And it is clear that First Tennessee did 

not file suit within the limitations period. Newham acknowledged that he was in default on the note on September 2, 

2007. While First Tennessee contended at oral argument that 

Newham was in default as of September 3, the specific date 

of default makes no difference to our analysis. First Tennessee 

did not file the present action until August 5, 2013, nearly 6 

years later.

First Tennessee asserts only two statutory bases for tolling 

the statute of limitations. We therefore limit our analysis to 

whether the limitations period was tolled by either Cal. Civ. 

Proc. Code § 351 or 50 U.S.C. app. § 526(a).

Cal. Civ. Proc. Code §

Because Cal. Civ. Proc. Code § 351 is a California statute, 

we set forth its full text.

Exception, where defendant is out of the Stat

when the cause of action accrues against a person, he is 

out of the State, the action may be commenced within 

the term herein limited, after his return to the State, and 

if, after the cause of action accrues, he departs from the 

State, the time of his absence is not part of the time limited for the commencement of the action.

As discussed above, the district court determined that § 351 

could not be applied to toll the limitations period, because 

its application against Newham, a nonresident of California, 

would violate the Commerce Clause of the U.S. Constitution. 

We agree.
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State tolling statutes, such as § 351, raise constitutional 

concerns due to their potential effect on interstate commerce. 

As the U.S. Supreme Court expressed in Bendix Autolite Corp. 

v. Midwesco Enterprises,

9

 “Where a State denies ordinary 

legal defenses or like privileges to out-of-state persons or corporations engaged in commerce, the state law will be reviewed 

under the Commerce Clause to determine whether the denial 

is discriminatory on its face or an impermissible burden on 

commerce.”10 In that case, the Court determined that an Ohio 

tolling statute violated the Commerce Clause when applied to 

a foreign corporation, because it imposed a greater burden on 

foreign corporations than it imposed on Ohio corporations. 

The statute “force[d] a foreign corporation to choose between 

exposure to the general jurisdiction of Ohio courts or forfeiture of the limitations defense, remaining subject to suit in 

Ohio in perpetuity.”11

In considering § 351, California courts have similarly 

found that it violates the Commerce Clause by forcing nonresident defendants to be present in California for the duration 

of the limitations period or to forfeit the limitations defense.12

In Heritage Marketing Services v. Chrustawka,

13 the defendants were former California residents who had moved out of 

the state to reside in Texas. The California Court of Appeal 

concluded that § 351 could not be applied against them 

without violating the Commerce Clause. Applying § 351 

would impose an impermissible burden on interstate commerce, because it would “creat[e] disincentives to travel 

across state lines and impos[e] costs on those who wish to do 

9 Bendix Autolite Corp. v. Midwesco Enterprises, 486 U.S. 888, 108 S. Ct. 

2218, 100 L. Ed. 2d 896 (1988).

10 Id., 486 U.S. at 893.

11 Id.

12 See, Dan Clark Family Ltd. v. Miramontes, 193 Cal. App. 4th 219, 122 

Cal. Rptr. 3d 517 (2011); Heritage Marketing Services v. Chrustawka, 160 

Cal. App. 4th 754, 73 Cal. Rptr. 3d 126 (2008).

13 Heritage Marketing Services, supra note 12.
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280 290 NEBRASKA REPORTS

so.”14 Further, in Dan Clark Family Ltd. v. Miramontes,

15 the 

California Court of Appeal concluded that § 351 could not be 

applied against defendants who were residents of Mexico. In 

that case, § 351 would force the defendants to “either become

residents of California or to be subject to suit in California 

in perpetuity.”16

We find the above cases to be instructive and conclude that 

the application of § 351 against Newham would violate the 

Commerce Clause. Like the defendants in the above cases, 

Newham was a nonresident of California during the limitations 

period. Further, his status was identical to that of the defendants in Heritage Marketing Services, as a former resident 

of California who had permanently left the state. Applying 

§ 351 against Newham would impose an impermissible burden 

on interstate commerce. Denying him the limitations defense 

would force similar defendants either to remain in California 

for the duration of the limitations period or to forfeit the limitations defense, remaining subject to suit in California in perpetuity. “Section 351 penalizes people who move out of state 

by imposing a longer statute of limitations on them than on 

those who remain in the state. The [C]ommerce [C]lause protects persons from such restraints on their movements across 

state lines.”17

First Tennessee attempts to compare this case to Filet Menu, 

Inc. v. Cheng,

18 in which the California Court of Appeal concluded that the Commerce Clause was not violated by the 

application of § 351 against residents of California who traveled outside of the state for reasons unrelated to interstate commerce. And it claims that Newham had the burden of proving 

that his absence from California affected interstate commerce 

by being for the purpose of employment.

14 Id. at 764, 73 Cal. Rptr. 3d at 132.

15 Dan Clark Family Ltd., supra note 12.

16 Id. at 233, 122 Cal. Rptr. 3d at 528.

17 Heritage Marketing Services, supra note 12, 160 Cal. App. 4th at 763, 73 

Cal. Rptr. 3d at 132.

18 Filet Menu, Inc. v. Cheng, 71 Cal. App. 4th 1276, 84 Cal. Rptr. 2d 384 

(1999).
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But both of these arguments were rejected in the above 

cases. In Dan Clark Family Ltd., the California Court of 

Appeal dismissed the plaintiff’s reliance upon Filet Menu, 

Inc., because Filet Menu, Inc. involved a resident defendant. 

“A resident defendant does not face the same unpalatable 

choice that a nonresident faces with respect to the tolling 

of the statute of limitations under [§] 351—i.e., to remain 

in California, or be subject to suit in perpetuity.”19 And in 

Heritage Marketing Services, the California Court of Appeal 

rejected the plaintiffs’ argument that the defendants could 

have relocated to Texas for purposes other than employment, 

observing: “[P]laintiffs have not cited, nor have we found, any 

cases holding that interstate commerce is not affected when 

persons simply move out of state, as opposed to doing so for 

the purpose of taking or seeking new employment.”20 And 

in this case, the district court received ample evidence that 

Newham held numerous positions of employment in multiple 

states after his relocation from California. Thus, we are not 

persuaded that Newham’s relocation from California did not 

affect interstate commerce.

We find no error in the district court’s conclusion that 

§ 351 could not be applied against Newham to toll the 4-year 

limitations period. Under the Commerce Clause, § 351 could 

not deprive Newham of an ordinary legal defense available to 

persons remaining within California. This assignment of error 

is without merit.

50 U.S.C. app. § 

First Tennessee further asserts that the district court erred 

in failing to apply 50 U.S.C. app. § 526(a) to toll the limitations period. Section 526 is part of the SCRA and provides, in 

relevant part:

(a) Tolling of statutes of limitation during military service

19 Dan Clark Family Ltd., supra note 12, 193 Cal. App. 4th at 234, 122 Cal. 

Rptr. 3d at 528.

20 Heritage Marketing Services, supra note 12, 160 Cal. App. 4th at 762, 73 

Cal. Rptr. 3d at 131.
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The period of a servicemember’s military service may 

not be included in computing any period limited by law, 

regulation, or order for the bringing of any action or proceeding in a court, or in any board, bureau, commission, 

department, or other agency of a State (or political subdivision of a State) or the United States by or against the 

servicemember or the servicemember’s heirs, executors, 

administrators, or assigns.

First Tennessee asserts that the district court incorrectly 

identified Newham as a “‘reservist,’” rather than a “‘fulltime National Guard’” member.21 And because Newham was a 

full-time National Guard member, First Tennessee claims that 

§ 526(a) acted to toll the limitations period.

We acknowledge that the district court incorrectly identified Newham as a reservist at the hearing on First Tennessee’s 

motion for new trial. All of the evidence received by the court 

identified Newham as a National Guard member. And Newham 

testified that he was a full-time member of the North Dakota 

National Guard for approximately 3 years. Further, Newham’s 

membership in the North Dakota National Guard coincided 

with the limitations period. However, there was no basis to 

conclude that his National Guard membership activated the 

tolling effect of § 526(a).

The SCRA provides specific definitions for the terms used 

within § 526(a).22 As stated above, § 526(a) tolls the limitations period during the “period of a servicemember’s military 

service.” And the “[p]eriod of military service” is defined as 

the “period beginning on the date on which a servicemember 

enters military service and ending on the date on which the 

servicemember is released from military service or dies while 

in military service.”23 Thus, it is apparent that the critical term 

in applying § 526(a) is “military service.”

The question becomes whether Newham’s National Guard 

membership qualified as “military service” under the SCRA. 

21 See brief for appellant at 8.

22 See 50 U.S.C. app. § 511.

23 50 U.S.C. app. § 511(3).
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Under the SCRA, “military service” has multiple definitions. 

But only the definitions under § 511(2)(A) were potentially 

applicable to Newham. That subsection defines “military service” as:

[I]n the case of a servicemember who is a member of the 

Army, Navy, Air Force, Marine Corps, or Coast Guard—

(i) active duty, as defined in section 101(d)(1) of title 

10, United States Code, and

(ii) in the case of a member of the National Guard, 

includes service under a call to active service authorized 

by the President or the Secretary of Defense for a period 

of more than 30 consecutive days under section 502(f) of 

title 32, United States Code, for purposes of responding to 

a national emergency declared by the President and supported by Federal funds.

This definition provides only two means by which the SCRA 

could have tolled the California statute of limitations. If 

Newham was on “active duty” or if he was called to active 

service under the conditions specified in § 511(2)(A)(ii), tolling would result. But the evidence does not establish that either 

circumstance occurred.

It is clear that Newham was not on “active duty” as defined 

in 10 U.S.C. § 101(d)(1) (2012) during the limitations period. 

That provision defines “active duty” as

full-time duty in the active military service of the United 

States. Such term includes full-time training duty, annual 

training duty, and attendance, while in the active military service, at a school designated as a service school 

by law or by the Secretary of the military department 

concerned. Such term does not include full-time National 

Guard duty.

(Emphasis supplied.)

“[F]ull-time National Guard duty” is expressly excluded 

from the definition of “active duty.”24 And multiple federal 

courts have recognized that full-time National Guard duty at 

24 See, 10 U.S.C. § 101(d)(1); In re Ladd, 516 B.R. 66 (D.S.C. 2014); 

Freeman v. U.S., 98 Fed. Cl. 360 (2011).
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the state level does not constitute federal active military service.25 Newham indicated that his most recent period of active 

duty was from March 2005 to July 2007, when he was stationed at Travis Air Force Base. And he testified that his membership in the North Dakota National Guard was “full-time, at 

the state level.” Thus, the evidence received at the summary 

judgment hearing established that Newham was not on “active 

duty” at any point during the limitations period.

First Tennessee points to the definition of “active service” 

under § 101(d)(3) and argues that there are two methods 

of being on “active duty.” “[A]ctive Service” is defined as 

“service on active duty or full-time National Guard duty.”26

However, this argument ignores the definitions of the terms 

used within the SCRA.27 As previously discussed, “military 

service” is limited to “active duty” as defined by § 101(d)(1). 

And that provision expressly excludes full-time National 

Guard duty.

As to the second possible definition of “military service,” 

the district court received no evidence on that issue. There was 

no evidence that during his membership with the North Dakota 

National Guard, Newham was called to active service—authorized by the President or the Secretary of Defense—for a 

period of more than 30 consecutive days under 32 U.S.C. 

§ 502(f) (2012), for purposes of responding to a national 

emergency.28

[4] And on that issue, First Tennessee bore the burden of 

proof. Newham established a prima face case for the application of the statute of limitations. After the movant for summary judgment makes a prima facie case by producing enough 

evidence to demonstrate that the movant is entitled to judgment if the evidence was uncontroverted at trial, the burden 

to produce evidence showing the existence of a material issue 

25 See, Freeman, supra note 24; Bowen v. U.S., 49 Fed. Cl. 673 (2001), 

affirmed 292 F.3d 1383 (Fed. Cir. 2002) (construing predecessor act, 

Soldiers’ and Sailors’ Civil Relief Act of 1940).

26 10 U.S.C. § 101(d)(3).

27 See 50 U.S.C. app. § 511.

28 See 50 U.S.C. app. § 511(2)(A)(ii).
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of fact that prevents judgment as a matter of law shifts to 

the party opposing the motion.29 Thus, the burden shifted to 

First Tennessee to establish a genuine issue of material fact 

as to the tolling of the limitations period. But First Tennessee 

neither alleged nor presented any evidence that Newham had 

ever been called to active service to respond to a national 

emergency. No genuine issue was established as to whether 

Newham’s National Guard membership met the second definition of “military service.”30

In short, First Tennessee failed to establish any basis for 

concluding that the limitations period was tolled by § 526(a). 

Newham was not on “active duty” during his membership in 

the North Dakota National Guard, and no evidence was presented that he had ever been called to active service within 

the meaning of § 511(2)(A)(ii). This assignment of error is 

without merit.

CONCLUSION

Both parties agree that First Tennessee was required to file 

suit within 4 years of Newham’s breach of the promissory note. 

But no evidence was presented to the district court creating a 

genuine issue of fact as to the tolling of the limitations period. 

Because the present action was not filed until nearly 6 years 

after the breach, we affirm the entry of summary judgment in 

Newham’s favor.

Affirm

29 Durre v. Wilkinson Development, 285 Neb. 880, 830 N.W.2d 72 (2013). 

See Andres v. McNeil Co., 270 Neb. 733, 707 N.W.2d 777 (2005).

30 See 50 U.S.C. app. § 511(2)(A)(ii).