Baker's Supermarkets, Inc. v. Feldman

• Decision Date: 09 July 1993
• Docket Number: No. S-90-1000,S-90-1000
• Citation: 502 N.W.2d 428,243 Neb. 684
• Parties: BAKER'S SUPERMARKETS, INC., a Nebraska Corporation, Appellee, v. Albert L. FELDMAN and Meyer H. Feldman, Cotrustees, Appellants.
• Court: Nebraska Supreme Court

Page 428

502 N.W.2d 428

243 Neb. 684

BAKER'S SUPERMARKETS, INC., a Nebraska Corporation, Appellee, v. Albert L. FELDMAN and Meyer H. Feldman, Cotrustees, Appellants.

No. S-90-1000.

Supreme Court of Nebraska.

July 9, 1993.

Syllabus by the Court

1. Contracts: Appeal and Error. The construction of a contract is a matter of law in connection with which an appellate court has an obligation to reach an independent correct conclusion irrespective of the determination made by the courts below.

2. Summary Judgment. Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact 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 of law.

3. Summary Judgment: Final Orders: Appeal and Error. Although the denial of a motion for summary judgment is not a final order and thus may not be appealed, when adverse parties have each moved for summary judgment and the trial court sustained one of the motions, the reviewing court obtains jurisdiction over both of the motions, may determine the controversy which is the subject of those motions, and may make an order specifying the facts which appear without substantial controversy and directing such further proceedings as it deems just.

4. Judgments: Appeal and Error. The rule that a party who accepts the benefits of a judgment in its favor may not appeal therefrom applies only where the judgment benefits the party seeking to appeal and not where compliance is involuntary or compelled.

5. Appeal and Error. An error in an opinion of the Court of Appeals concerning which no complaint is made in a petition for further review, but which is encompassed within the errors raised before the Court of Appeals and which, if uncorrected, would result in an erroneous direction for retrial of a cause, constitutes plain error for consideration on further review.

6. Contracts: Time. Instruments made in reference to and as part of the same transaction are to be considered and construed together; that the instruments were made or dated at different times is not significant if they are related to and were part of the transaction.

7. Contracts. A contract must be construed as a whole, and, if possible, effect must be given to every part thereof.

8. Contracts. In interpreting contracts, the court as a matter of law must first determine whether the contract is ambiguous.

9. Contracts: Words and Phrases. An instrument is ambiguous if a word, phrase, or provision in the instrument has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.

10. Contracts. The fact that parties to a document have or suggest opposing interpretations of the document does not necessarily, or by itself, compel the conclusion that the document is ambiguous.

11. Contracts: Intent. If a contract is unambiguous, the intent of the parties must be determined from the contents of the contract.

12. Contracts. The terms of a contract are to be accorded their plain and ordinary meaning as ordinary, average, or reasonable persons would understand them.

James D. Sherrets and Karl D. Vogt, of Sherrets Smith & Gardner, P.C., Omaha, for appellants.

Ray R. Simon and John C. Brownrigg, of Erickson & Sederstrom, P.C., Omaha, for appellee.

HASTINGS, C.J., and BOSLAUGH, CAPORALE, SHANAHAN, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

The plaintiff-appellee lessee, Baker's Supermarkets, Inc., sought a declaration that it had not breached its lease and an injunction preventing the defendant-appellant lessors, the cotrustees of an unnamed trust, Albert L. and Meyer H. Feldman, from interfering with the rights of Baker's in the demised premises. The Feldmans in turn counterclaimed for damages and restitution of the demised premises. Each of the parties moved for summary judgment; the district court sustained the motion of Baker's and denied the Feldmans' motion, thereby dismissing their counterclaim. The Feldmans then appealed, asserting that the district court had erred in, among other things, holding that Baker's was not required to continuously occupy and use the demised premises and was not obligated to pay a penalty for its failure to do so, and in dismissing their counterclaim. Baker's, on the other hand, contended that by accepting rental payments as ordered by the district court, the Feldmans had forfeited their right to appeal. The Nebraska Court of Appeals rejected the contention made by Baker's, but found the lease to be ambiguous, determined that summary judgment was for that reason inappropriate, and thus reversed the judgment of the district court and remanded the cause for further proceedings. Baker's then petitioned this court for further review on the sole basis that the Feldmans had waived their right to appeal. We now affirm the judgment of the Court of Appeals as modified in this opinion.

We begin our review by recalling once again that the construction of a contract is a matter of law in connection with which we, as an appellate court, have an obligation to reach an independent correct conclusion irrespective of the determination made by the courts below. See, Northern Bank v. Federal Dep. Ins. Corp., 242 Neb. 591, 496 N.W.2d 459 (1993); Baker v. St. Paul Fire & Marine Ins. Co., 240 Neb. 14, 480 N.W.2d 192 (1992); Spittler v. Nicola, 239 Neb. 972, 479 N.W.2d 803 (1992).

We also recall that summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact 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 of law. VanDeWalle v. Albion Nat. Bank, 243 Neb. 496, 500 N.W.2d 566 (1993); Amco Ins. Co. v. Norton, 243 Neb. 444, 500 N.W.2d 542 (1993); Viking Broadcasting Corp. v. Snell Publishing Co., 243 Neb. 92, 497 N.W.2d 383 (1993).

Although the denial of a motion for summary judgment is not a final order and thus may not be appealed, when adverse parties have each moved for summary judgment and the trial court sustained one of the motions, the reviewing court obtains jurisdiction over both of the motions, may determine the controversy which is the subject of those motions, and may make an order specifying the facts which appear without substantial controversy and directing such further proceedings as it deems just. Nu-Dwarf Farms v. Stratbucker Farms, 238 Neb. 395, 470 N.W.2d 772 (1991). See, also, State v. Union Pacific RR. Co., 241 Neb. 675, 490 N.W.2d 461 (1992), modified on other grounds 242 Neb. 97, 490 N.W.2d 461; Kimco Addition v. Lower Platte South N.R.D., 232 Neb. 289, 440 N.W.2d 456 (1989).

Sometime prior to 1965, Baker's began negotiating with the Feldmans' predecessor in interest to lease space as a tenant at an Omaha shopping center. They reached an agreement for a term of 15 years, which was reduced to writing and executed by the parties on June 10, 1964. This document was replaced by an instrument dated June 25, 1965, for a like term, to commence on the completion of 20,934 square feet of building space to be constructed in the same shopping center by the predecessor. The motivation for the execution of the June 25, 1965, replacement instrument is not clear, but the parties treat the June 25 instrument as controlling. Thus, we refer to this instrument as the "original lease."

On June 23, 1977, Baker's and the Feldmans as the successors in interest to the original lessor executed a supplemental agreement to the original lease. The supplemental agreement provided for the addition of 7,800 square feet to the demised premises. It also increased the monthly rent, extended the term for 15 years following completion of the addition, and granted Baker's the option of two successive 5-year extensions.

The original lease provides, in relevant parts:

(2) Nature of Business and Restrictions.

[Baker's] shall conduct in and upon the premises a retail grocery supermarket and there shall be no restriction or limitation upon the articles sold therein, except that no prescription drugs shall be sold. [The Feldmans' predecessor] covenants that it will not lease any portion of the shopping center to any other person, firm or corporation to be used in the sale of groceries, meats and produce, or any of such lines, except for a delicatessen, which delicatessen shall occupy an area not to exceed twenty-five hundred (2500) square feet.

....

(15) Continued Occupancy.

[Baker's] covenants to, and it is of the essence of this lease, that [Baker's] shall, continuously and uninterruptedly during the term of this lease, occupy and use the premises for the purpose hereinabove specified, except while premises are untenantable by reason of fire or other unavoidable casualty, and in this connection, it is agreed that in case of breach of this covenant, [Baker's] shall, in addition to the rental hereinabove provided for, pay to the [Feldmans' predecessor] monthly a sum equal to twenty-five (25%) per cent of the monthly rental stipulated herein, for each and every month during which the premises are not so continuously and uninterruptedly used and occupied, as liquidated damages for [Baker's] breach of covenant, it being recognized by the parties that the exact amount of damages to the [Feldmans' predecessor] on account of such breach cannot be accurately ascertained. This provision shall, however, in no wise abridge or affect any other right or remedy which the [Feldmans' predecessor] may have on account of or in connection with [Baker's] breach of this covenant.

The preamble of the supplemental agreement declares:

WHEREAS, [the Feldmans are] ... bound by a certain lease agreement dated the 25th day of June, 1965, by virtue of which certain premises ... were leased to Baker's ... and...