Luschen Bldg. Ass'n v. Fleming Companies, Inc., 85-946

Decision Date20 November 1987
Docket NumberNo. 85-946,85-946
PartiesLUSCHEN BUILDING ASSOCIATION, a Copartnership, Appellee, v. FLEMING COMPANIES, INC., a Corporation, Defendant and Third-Party Plaintiff, Appellant, Alfred W. Dolezal et al., Third-Party Defendants, Appellants.
CourtNebraska Supreme Court

Syllabus by the Court

1. Summary Judgment. Summary judgment is an extreme remedy and should be awarded only when the issue is clear beyond all doubt.

2. Summary Judgment. Summary judgment is proper 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 material facts, and when the moving party is entitled to judgment as a matter of law.

3. Contracts. The construction of a contract, if needed, is a question of law for the court as well as a duty that rests upon the court, and there can be no ambiguity unless and until an application of pertinent rules of interpretation leaves it really uncertain which of two or more possible meanings represents the true intention of the parties.

4. Contracts. That two parties urge opposing interpretations of a contract does not necessarily indicate the document is ambiguous.

5. Contracts. A provision of a contract is ambiguous when, considered with other pertinent provisions as a whole, it is capable of being understood in more senses than one.

6. Contracts: Juries: Courts. When the terms of the contract are in dispute and the real intentions of the parties cannot be determined from the words used, the jury and not the court, should determine the issue from all the facts and circumstances.

7. Contracts: Summary Judgment. When it is established that a contract is ambiguous, the meaning of its terms is a matter of fact to be determined in the same manner as other questions of fact which preclude summary judgment.

8. Evidence. Evidence of an offer or desire to compromise, consisting of a direct offer to buy peace or settle a controversy without respect to legal liability, is not admissible against the person making it.

9. Summary Judgment. In considering a motion for summary judgment, the evidence is to be viewed in the light most favorable to the party against whom the motion is directed, giving to that party the benefit of all reasonable inferences which may be drawn from the evidence.

10. Judgments: Appeal and Error. Generally an order, judgment, or proceeding dependent on, or ancillary and accessory to, a judgment, order, or decree which is reversed shares its fate and falls with it.

Stephen H. Nelsen and Shawn D. Renner of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellant Fleming Companies.

Stephen C. Hansen and Eugene G. Schumacher of Luckey, Sipple, Hansen, Emerson & Schumacher, Columbus, for appellants Dolezal et al.

Vance E. Leininger of Leininger, Grant, Rogers & Maul, Columbus, for appellee.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

WHITE, Justice.

This is an appeal from the district court for Platte County. Fleming Companies, Inc. (defendant and third-party plaintiff below), Alfred W. Dolezal, Christine Dolezal, Joseph L. Gdowski, and Marcelline L. Gdowski (third-party defendants below) appeal from a summary judgment order and a judgment entered pursuant to that order. The appeals have been consolidated.

This appeal involves the interpretation of a lease, specifically a repair clause within a lease and a sublease. Luschen Building Association, appellee lessor, brought this action in the district court against Fleming, lessee, to compel it to repair or replace a parking lot on leased premises. Fleming then filed a third-party complaint against Dolezals and Gdowskis, sublessees, which alleged that if Fleming was held liable for said repairs, then the sublessees would be liable to Fleming for that work.

Luschen and Fleming entered into the original lease agreement on July 15, 1966. This lease was amended twice to extend the term and provide for increased rental rates. The repair clause remained as it had been set forth in the original lease. This clause, section 9, is at the heart of the dispute in this case and is set out in its entirety.

9. The Lessor shall maintain in good condition the structural parts of the building on the premises, including the exterior walls, roof, footings, and foundation, and shall perform any repairs made necessary by reason of such maintenance.

The Lessee shall maintain in good condition the interior of the building on the premises including all doors both manually-operated and automatic, all glass including glass exposed to the exterior, and all heating, air conditioning, electrical, and plumbing fixtures, equipment, and services in said building or on the premises appurtenant thereto, and in addition shall provide all painting and decorating to the exterior of said building, and shall provide all maintenance and repair to the parking lot, parking lot lights, lighting, and striping.

Should either the Lessor or the Lessee fail, for a reasonable period of time after notice by the other, to maintain the portions of the premises herein undertaken by each to be maintained, in good, and substantially their present condition, reasonable use, wear, and tear excepted, the other party hereto having so given reasonable notice of the necessity for such maintenance, may proceed to provide such maintenance as reasonably required on behalf of the party so failing to provide the same; and if provided by the Lessee on behalf of the Lessor, the former may deduct the cost thereof from future installments of base rent as the same become due until reimbursed; and if provided by the Lessor on behalf of the Lessee, the cost thereof shall be paid by the Lessee to the Lessor simultaneously with the next monthly installment of base rent when the same falls due.

The sublease at issue in this case has a more complicated history. Fleming originally sublet the premises to parties not associated with this appeal on July 16, 1966. Those sublesses assigned the sublease to Dolezals and Gdowskis on March 26, 1968, to become effective April 7, 1968. The term was to expire July 15, 1976.

In June of 1972 Fleming and the sublessees, Dolezals and Gdowskis, executed a revised sublease which superseded and replaced the 1966 assigned sublease. The 1972 sublease agreement extended the initial term by allowing the agreement to automatically renew for 6 more years after July 15, 1976. There was also a rental rate increase for the additional 6-year term. The additional term was to expire July 15, 1982.

Finally, on October 22, 1981, Fleming and the sublessees executed the last sublease agreement for a term commencing July 16, 1982, and ending July 15, 1987. This sublease was in effect and controlling on October 7, 1982, the time when the correspondence began which led to the present appeal.

The relevant sublease provisions which are crucial to this appeal are set forth as follows:

1. The terms of the ORIGINAL LEASE hereinabove referred to are herein incorporated by reference with like force and effect as if the same had been fully set out, and SUBLESSEE acknowledges receipt of a true and correct copy of said ORIGINAL LEASE.

....

9. SUBLESSEE shall perform the covenants and obligations of SUBLESSOR under the ORIGINAL LEASE regarding maintenance and repair to the premises in strict accordance with the terms of Paragraph 9 of the ORIGINAL LEASE.

The ORIGINAL LESSOR shall maintain in good condition the structural parts of the building on the premises, including the exterior walls, roof, footings, and foundation, and shall perform any repairs made necessary by reason of such maintenance.

The SUBLESSEE shall maintain in good condition the interior of the building on the premises including all doors both manually-operated and automatic, all glass including glass exposed to the exterior, and all heating, air conditioning, electrical, and plumbing fixtures, equipment, and services in said building or on the premises appurtenant thereto, and in addition shall provide all painting and decorating to the exterior of said building, and shall provide all maintenance and repair to the parking lot, parking lot lights, lighting, and striping.

Should the SUBLESSEE fail, for a reasonable period of time after notice by the SUBLESSOR, to maintain the portions of the premises herein undertaken by SUBLESSEE to be maintained, in good, and substantially their present condition, reasonable use, wear, and tear excepted, the SUBLESSOR hereto having so given reasonable notice of the necessity for such maintenance, may proceed to provide such maintenance as reasonably required on behalf of the SUBLESSEE so failing to provide the same; and if provided by the SUBLESSOR on behalf of the ORIGINAL LESSOR, the former may add the cost thereof to future installments of base rent as the same become due until reimbursed.

Section 10 is set out only in pertinent part as follows:

10. SUBLESSEE covenants that it will pay the rent stipulated at the time and place specified; that it will use the premises solely for the purpose above specified; that it will, at its expense, keep the premises and improvements thereon, in the same good order and repair in which they now are or may hereafter be placed, except (1) usual wear and tear, (2) acts of God and unavoidable casualties, (3) repairs of defects for which ORIGINAL LESSOR is responsible under the ORIGINAL LEASE, and (4) damages and loss for which SUBLESSOR and ORIGINAL LESSOR have waived recovery under said ORIGINAL LEASE.

The record reveals that on October 7, 1982, Luschen began corresponding with Fleming about the deteriorating condition of the parking lot on the leased premises. Fleming then passed these concerns along to the sublessees, Dolezals and Gdowskis, and directed them to make the repairs demanded by Luschen....

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