                       Nebraska Advance Sheets
	              FIRST TENNESSEE BANK NAT. ASSN. v. NEWHAM	273
	                           Cite as 290 Neb. 273

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 suf-
ficiency 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 respect-
fully dissent.
   Heavican, C.J., and Stephan, J., join in this dissent.

10	
      See § 28-638(1)(c).
11	
      State v. Nave, 284 Neb. 477, 821 N.W.2d 723 (2012).



             First Tennessee Bank National Association,
                successor by merger to First Horizon
                 Home Loan Corporation, appellant,
                     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 evi-
     dence 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 judg-
     ment 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, McCormack,
Miller-Lerman, and Cassel, JJ.
      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 borrow-
er’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 violat-
ing the Commerce Clause.2 And the borrower’s membership
in the National Guard provided no basis to toll the limita-
tions 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.
                   Nebraska Advance Sheets
	          FIRST TENNESSEE BANK NAT. ASSN. v. NEWHAM	275
	                       Cite as 290 Neb. 273

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 demon-
stration 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 seek-
ing 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 limita-
tions. First Tennessee filed an amended complaint and alleged
that Newham was an “absconding debtor.”
   At the summary judgment hearing, Newham’s coun-
sel 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 dis-
cussed in greater detail below, § 351 tolls the statute of limita-
tions 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 evi-
dence, including Newham’s answers to interrogatories and
his deposition testimony. As to his current employment sta-
tus, 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 toll-
ing provision of Cal. Civ. Proc. Code § 351, the court con-
cluded 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 dis-
trict 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 con-
stitutional violation.
   At the hearing on First Tennessee’s motion, the district court
acknowledged that it had failed to consider § 526(a) in its sum-
mary judgment order. However, it clarified that in considering
the statute of limitations, it had reviewed § 526(a) and con-
cluded 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 neces-
sary, 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).
                        Nebraska Advance Sheets
	               FIRST TENNESSEE BANK NAT. ASSN. v. NEWHAM	277
	                            Cite as 290 Neb. 273

                  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
                          Jurisdiction
   [3] We first dispose of a preliminary matter. Although nei-
ther 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 judg-
ment.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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278	290 NEBRASKA REPORTS



First Tennessee’s notice of appeal was timely filed after the
terminating motion was overruled. Thus, we have jurisdiction
of the appeal.
                    California Law Applies
   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 acknowl-
edged 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 § 351
   Because Cal. Civ. Proc. Code § 351 is a California statute,
we set forth its full text.
          Exception, where defendant is out of the State. If,
      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 lim-
      ited 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.
                        Nebraska Advance Sheets
	               FIRST TENNESSEE BANK NAT. ASSN. v. NEWHAM	279
	                            Cite as 290 Neb. 273

   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 cor-
porations 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 forfeit­
ure 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 non-
resident 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 defend­
ants 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 com-
merce, 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.
    Nebraska Advance Sheets
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 defend­
ants 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 limi-
tations defense, remaining subject to suit in California in per-
petuity. “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 pro-
tects 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 con-
cluded that the Commerce Clause was not violated by the
application of § 351 against residents of California who trav-
eled outside of the state for reasons unrelated to interstate com-
merce. 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).
                        Nebraska Advance Sheets
	               FIRST TENNESSEE BANK NAT. ASSN. v. NEWHAM	281
	                            Cite as 290 Neb. 273

   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. § 526
   First Tennessee further asserts that the district court erred
in failing to apply 50 U.S.C. app. § 526(a) to toll the limita-
tions period. Section 526 is part of the SCRA and provides, in
relevant part:
         (a) Tolling of statutes of limitation during mili-
      tary 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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282	290 NEBRASKA REPORTS



         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 pro-
      ceeding in a court, or in any board, bureau, commission,
      department, or other agency of a State (or political sub-
      division 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 “‘full-
time 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 identi-
fied 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 limita-
tions 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).
                       Nebraska Advance Sheets
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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 serv­
ice” 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 sup-
      ported 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), toll-
ing 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 mili-
      tary 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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284	290 NEBRASKA REPORTS



the state level does not constitute federal active military serv­
ice.25 Newham indicated that his most recent period of active
duty was from March 2005 to July 2007, when he was sta-
tioned at Travis Air Force Base. And he testified that his mem-
bership 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—autho-
rized 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 applica-
tion of the statute of limitations. After the movant for sum-
mary judgment makes a prima facie case by producing enough
evidence to demonstrate that the movant is entitled to judg-
ment 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).
                       Nebraska Advance Sheets
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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 defini-
tion 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 pre-
sented 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.
                                                       Affirmed.

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).
