Ray Anderson, Inc., a Nebraska corporation, Appellee and Cross-Appellant,
Buck's, INC., a Nebraska corporation, appellant and cross-appellee.
Summary Judgment: Appeal and Error. An
appellate court will affirm a lower court's grant of
summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as
to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter
___. In reviewing a summary judgment, the court views the
evidence in the light most favorable to the party against
whom the judgment was granted and gives such party the
benefit of all reasonable inferences deducible from the
Declaratory Judgments: Appeal and Error. In
an appeal from a declaratory judgment, an appellate court,
regarding questions of law, has an obligation to reach its
conclusion independently of the conclusion reached by the
Contracts. The meaning of a contract and
whether a contract is ambiguous are questions of law.
In interpreting a contract, a court must first determine, as
a matter of law, whether the contract is ambiguous.
Contracts: Words and Phrases. A contract is
ambiguous when a word, phrase, or provision in the contract
has, or is susceptible of, at least two reasonable but
conflicting interpretations or meanings.
Contracts. The meaning of an ambiguous
contract is generally a question of fact.
A contract written in clear and unambiguous language is not
subject to interpretation or construction and must be
enforced according to its terms.
Neb. 435] 9. ___. The court must accord clear terms their
plain and ordinary meaning as an ordinary or reasonable
person would understand them.
___. The fact that the parties have suggested opposite
meanings of a disputed instrument does not necessarily compel
the conclusion that the instrument is ambiguous.
___. A court is not free to rewrite a contract or to
speculate as to terms of the contract which the parties have
not seen fit to include.
___. Extrinsic evidence is not permitted to explain the terms
of a contract that is unambiguous.
___. Instruments made in reference to and as part of the same
transaction are to be considered and construed together.
Appeal and Error. An appellate court is not
obligated to engage in an analysis that is not necessary to
adjudicate the case and controversy before it.
from the District Court for Douglas County: Gary B. Randall,
Stephen M. Kalhorn, Benjamin W. Hulse, of Blackwell Burke,
P.A., and John P. Passarelli, of Kutak Rock, L.L.P, for
F. Smeall and Jacob A. Acers, of Smith, Slusky, Pohren &
Rogers, L.L.P, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Daugherty, District Judge.
Daugherty, District Judge.
declaratory judgment action, the district court for Douglas
County determined that a contract between Ray Anderson, Inc.
(Anderson), and Buck's, Inc., to supply
"BP-branded" motor fuel did not prevent Anderson
from contracting with a competitor, Western Oil, Inc., to
rebrand fuel sold at some of Anderson's facilities. The
court further found that Buck's held a unilateral right
to terminate the fuel supply agreement. Upon our de novo
review, we reach the same conclusion. Therefore, we affirm.
Neb. 436] BACKGROUND
and Governing Contracts
is a Nebraska corporation operating retail gasoline stations
and convenience stores in Omaha, Nebraska. Buck's is a
Nebraska corporation which also operates retail gasoline
stations in Omaha. In addition, Buck's acts as a
"jobber" by purchasing fuel from BP Products North
America Inc. (BP) and selling BP-branded fuel to individual
gasoline stations, including to some of Anderson's
Anderson entered into the BP-branded fuel supply contract
with Buck's, Anderson was also a "jobber" and
had purchased BP-branded gasoline directly from BP. In 2007,
Anderson was unable to meet its gasoline sales commitments to
BP and incurred $840, 000 in volume fees. Buck's agreed
to "bail out" Anderson and assumed Anderson's
contractual rights and obligations under its
"jobber" agreement with BP.
30, 2007, the parties entered into a series of agreements.
The parties executed a "Jobber Purchase and Sale
Agreement," in which Buck's agreed to (1) pay
Anderson $300, 000, (2) assume Anderson's $840, 000
liability to BP, and (3) assume Anderson's volume sales
commitments to BP. The parties also entered into a fuel
supply contract entitled the "Subjobber Supply
Agreement" (the Agreement), which incorporated a rider
entitled the "Electronic Dealer ...