Braunger Foods v. Sears , 286 Neb. 29 ( 2013 )

Nebraska Advance Sheets
BRAUNGER FOODS v. SEARS 29
Cite as 286 Neb. 29respondent is directed to pay costs and expenses in accord­
ance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue
2012) and Neb. Ct. R. §§ 3-310(P) and 3-323 of the discipli­
nary rules within 60 days after an order imposing costs and
expenses, if any, is entered by the court.
Judgment of disbarment.
Braunger Foods, LLC, formerly known as Toba
of Iowa, LLC, doing business as Braunger
Foods, appellant, v. Michael K. Sears
and Hungry’s North, I nc., appellees.
___ N.W.2d ___
Filed June 14, 2013. No. S-11-1109.
1. Contracts. Whether a contract exists is a question of fact.
2. Judgments: Appeal and Error. The trial court’s factual findings in a bench
trial of an action at law have the effect of a jury verdict and will not be set aside
unless clearly erroneous.
3. Contracts: Judgments: Appeal and Error. The meaning of a contract is a
question of law, in connection with which an appellate court has an obliga­
tion to reach its conclusions independently of the determinations made by the
court below.
4. Contracts: Guaranty. A guaranty is interpreted using the same general rules as
are used for other contracts.
5. Contracts: Guaranty: Debtors and Creditors: Words and Phrases. A guaranty
is a contract by which the guarantor promises to make payment if the principal
debtor defaults.
6. Contracts: Guaranty: Appeal and Error. To determine the obligations of the
guarantor, an appellate court relies on general principles of contract and guar­
anty law.
7. Contracts: Guaranty: Intent. Because a guaranty is a contract, it must be under­
stood in light of the parties’ intentions and the circumstances under which the
guaranty was given.
8. Guaranty: Liability. When the meaning of a guaranty is ascertained, or its terms
are clearly defined, the liability of the guarantor is controlled absolutely by such
meaning and limited to the precise terms.
9. Contracts: Guaranty: Words and Phrases. A guaranty is a collateral undertak­
ing to answer for the payment of debt or the performance of a contract or duty,
and when a guaranty is unambiguous, a court does not vary its terms by constru­
ing it with another instrument.
Nebraska Advance Sheets
30 286 NEBRASKA REPORTS
10. Guaranty. The undertaking of a guaranty is independent of the promise of the
principal obligation.
Petition for further review from the Court of Appeals, Irwin,
Pirtle, and Riedmann, Judges, on appeal thereto from the
District Court for Dakota County, Paul J. Vaughan, Judge.
Judgment of Court of Appeals reversed, and cause remanded
with directions.
Jeana L. Goosmann and Anthony L. Osborn, of Goosmann
Law Firm, P.L.C., for appellant.
Jeffrey T. Myers for appellees.
Michael K. Sears, pro se.
Heavican, C.J., Connolly, Wright, Stephan, McCormack,
and Cassel, JJ.
P er Curiam.
NATURE OF CASE
Braunger Foods, LLC, filed this action against Michael K.
Sears and Hungry’s North, Inc. (Hungry’s), seeking to recover
amounts that Braunger Foods alleged were due for sales it
had made on credit to Hungry’s. The district court for Dakota
County entered judgment against Hungry’s for amounts it con­
cluded were owing to Braunger Foods due to sales of products
to Hungry’s. However, the court concluded that a guaranty, by
which Braunger Foods sought to hold Sears personally liable
for the debt, was ineffective, and the court therefore entered
no judgment against Sears. Braunger Foods appealed to the
Nebraska Court of Appeals and assigned error to the dis­
trict court’s conclusion that the guaranty was not enforceable
against Sears. Neither Hungry’s nor Sears appealed the find­
ing and money judgment against Hungry’s based on Hungry’s
receipt of products from Braunger Foods. The Court of Appeals
affirmed the district court’s order. Braunger Foods v. Sears, 20
Neb. App. 428, 823 N.W.2d 723 (2012).
We granted Braunger Foods’ petition for further review.
We conclude that the guaranty was enforceable against Sears.
We therefore reverse the decision of the Court of Appeals and
Nebraska Advance Sheets
BRAUNGER FOODS v. SEARS 31
Cite as 286 Neb. 29remand the cause to the Court of Appeals with directions to
reverse the decision of the district court with respect to Sears
and to remand the cause to the district court with directions to
enter judgment against Sears in accordance with this opinion.
STATEMENT OF FACTS
Braunger Foods sold food product supplies to Hungry’s,
a business owned by Sears. Braunger Foods began selling to
Hungry’s in 2004 on an open account. Hungry’s began to fall
behind on payments in 2006 but resumed timely payments later
that year.
When Hungry’s again began falling behind on payments
in 2009, Braunger Foods put Hungry’s on cash-on-delivery
status. Before it would allow Hungry’s to resume buying
on credit, Braunger Foods asked Sears to sign certain docu­
ments that included a separate guaranty designed to obligate
Sears personally for all debts to Braunger Foods incurred
by Hungry’s.
The documents Braunger Foods asked Sears to sign
were included in a package titled “Confidential Customer
Application & Account Form.” The package included a page
titled “Credit Application” and another page that contained
two sections; one section was titled “Terms & Conditions,” and
another section was titled “Guaranty.” Significant portions of
the page titled “Credit Application” were left uncompleted, but
Hungry’s name, address, and business telephone number were
listed on designated lines at the top of that page.
In the “Terms & Conditions” section of the other page,
which section generally states that the customer is applying
to Braunger for credit and that the customer agrees to certain
terms and conditions of payment, Sears signed his name as
“Officer/Owner/Partner” and identified Hungry’s as the cus­
tomer. The line designated for “Braunger Foods representative”
was left blank. A line designated for the date was completed
as “11-16-09.”
The separate “Guaranty” section provided as follows:
I/We, the undersigned, for in and [sic] consideration
of Braunger Foods extending credit at my/our request to
the business entity identified above, (hereinafter referred
Nebraska Advance Sheets
32 286 NEBRASKA REPORTS
to as the Customer) hereby personally guaranty payment
of all obligations of the customer (including all inter­
est, attorney fees and charges) to Braunger Foods (“the
Indebtedness”) and do hereby agree to bind myself to
pay Braunger Foods on demand any sums which may
become due it by the customer, whether or not demand
has been made on the customer. It is understood that
this guaranty is unconditional, and shall be continuing
and irrevocable for such Indebtedness of the customer
to Braunger Foods as presently or hereafter exists. The
undersigned hereby waives all notices and demands of
any kind, including notice of default or nonpayment or
deferral for payment, and consent to any extensions of
time to pay, modification or renewal of the above credit
agreement or any release of modification of security for
the indebtedness. The undersigned hereby waives and
releases all rights of contribution or Indemnity by cus­
tomer. Additionally, the undersigned guarantor(s) agree to
pay, in the event the “Indebtedness” becomes delinquent,
Braunger Foods’ attorneys fees associated with collection
of the “indebtedness” plus all attendant collection costs
whether or not litigation is initiated. The undersigned also
agrees that venue for any action brought will be in the
state and county in which Braunger Foods branch sup­
plying product is located. This guaranty is personal to the
undersigned. Any notation of corporate capacity shall be
taken as informational only and shall not effect [sic] the
personal nature of the guaranty.
At the bottom of the “Guaranty” section, “Hungry’s North
Inc.” was printed on a line designated as “Print Name” and
Sears signed his name on the line below that line. We note
that, contrary to a statement in the Court of Appeals’ opinion
that “[t]here [is a space] on the second page for the signature
of a Braunger Foods representative . . . under the section
containing the guaranty, but [that space was] left blank,” see
Braunger Foods v. Sears, 20 Neb. App. 428, 430, 823 N.W.2d
723, 725 (2012), there does not appear to be a space under
the guaranty that is intended for the signature of a Braunger
Foods representative.
Nebraska Advance Sheets
BRAUNGER FOODS v. SEARS 33
Cite as 286 Neb. 29After Hungry’s again fell behind on payments, Braunger
Foods filed this suit against Sears and Hungry’s in April 2010
to recover the amount of unpaid invoices. After a bench trial,
the district court entered judgment against Hungry’s for the
amount of unpaid invoices plus interest. The court speci­
fied that the unpaid amounts included $31,882.73 for sales
of food products to Hungry’s from September 5 through
November 14, 2006, and $25,599.09 for sales of food products
to Hungry’s from October 7, 2009, through March 30, 2010.
The court calculated interest on these amounts through the
date of its order and entered a total judgment against Hungry’s
of $82,307.26 plus postjudgment interest. Although the dis­
trict court’s judgment reflects an implicit finding that there
was a contracted arrangement between Braunger Foods and
Hungry’s, the court nevertheless concluded that the guaranty
was not enforceable against Sears. As its reason for refusing to
enforce the guaranty, the district court stated that at the bottom
of the page on which the “Guaranty” appeared, there was a
statement “‘I/WE PERSONALLY GUARANTEE PAYMENT
ON TERMS THAT ARE APPROVED,’” and that the credit
application was “incomplete and never officially signed by
anyone from” Braunger Foods. The court therefore entered no
judgment against Sears personally.
Braunger Foods appealed to the Court of Appeals and
claimed that the district court erred when it found that the
personal guaranty was not enforceable against Sears. Neither
Hungry’s nor Sears appealed the finding and money judgment
against Hungry’s. The Court of Appeals affirmed the district
court’s judgment.
We granted Braunger Foods’ petition for further review.
ASSIGNMENT OF ERROR
Braunger Foods claims that the Court of Appeals erred when
it concluded that the personal guaranty was not enforceable
against Sears.
STANDARDS OF REVIEW
[1,2] Whether a contract exists is a question of fact.
Gerhold Concrete Co. v. St. Paul Fire & Marine Ins., 269
Nebraska Advance Sheets
34 286 NEBRASKA REPORTS
Neb. 692, 695 N.W.2d 665 (2005). The trial court’s factual
findings in a bench trial of an action at law have the effect
of a jury verdict and will not be set aside unless clearly erro­
neous. McCully, Inc. v. Baccaro Ranch, 284 Neb. 160, 816
N.W.2d 728 (2012).
[3] The meaning of a contract is a question of law, in
connection with which an appellate court has an obligation
to reach its conclusions independently of the determinations
made by the court below. Bedore v. Ranch Oil Co., 282 Neb.
553, 805 N.W.2d 68 (2011).
[4] A guaranty is interpreted using the same general rules as
are used for other contracts. Builders Supply Co. v. Czerwinski,
275 Neb. 622, 748 N.W.2d 645 (2008).
ANALYSIS
Braunger Foods claims that the Court of Appeals and the
district court erred when they concluded that the personal guar­
anty was not enforceable against Sears. As explained below,
we conclude that although the credit application as a whole
was not complete, the guaranty was complete in itself with­
out reference to the rest of the credit application, and that the
guaranty applied to all credit extended by Braunger Foods to
Hungry’s, whether or not such credit was extended under the
terms provided in the credit application or under the terms of
other oral or implied agreements. Accordingly, we find merit
to Braunger Foods’ assignment of error and conclude that the
guaranty is enforceable against Sears.
[5-8] A guaranty is a contract by which the guarantor prom­
ises to make payment if the principal debtor defaults. First
Nat. Bank of Unadilla v. Betts, 275 Neb. 665, 748 N.W.2d
76 (2008). To determine the obligations of the guarantor, this
court relies on general principles of contract and guaranty law.
Id. Because a guaranty is a contract, it must be understood
in light of the parties’ intentions and the circumstances under
which the guaranty was given. Id. When the meaning of a guar­
anty is ascertained, or its terms are clearly defined, the liability
of the guarantor is controlled absolutely by such meaning and
limited to the precise terms. Id.In the view of both the district court and the Court of
Appeals, the scope and enforceability of the guaranty in this
Nebraska Advance Sheets
BRAUNGER FOODS v. SEARS 35
Cite as 286 Neb. 29case depended on whether the credit application as a whole
was a complete and enforceable contract. Both courts con­
cluded that the credit application was not complete and that
therefore, neither the guaranty nor any section of the credit
application was enforceable. This reasoning was flawed.
[9,10] We have described a guaranty as a collateral under­
taking to answer for the payment of debt or the performance
of a contract or duty, and we have stated that when a guaranty
is unambiguous, we do not vary its terms by construing it with
another instrument. See Builders Supply Co. v. Czerwinski,
supra. We have further stated that the undertaking of a guar­
anty is independent of the promise of the principal obliga­
tion. See National Bank of Commerce Trust & Sav. Assn. v.
Katleman, 201 Neb. 165, 266 N.W.2d 736 (1978). Because
a guaranty is a separate and independent agreement, we con­
sider whether the guaranty in this case is itself enforceable,
without reference to whether the entire credit application
was complete and whether other sections of the application
were enforceable.
Viewing the guaranty section as a separate agreement,
we conclude that it was complete and enforceable against
Sears with respect to any indebtedness Hungry’s incurred for
goods purchased on credit from Braunger Foods. The lan­
guage of the guaranty states generally that, in exchange for
Braunger Foods’ extending credit to the identified business
entity, Hungry’s, the signer will “personally guaranty payment
of all obligations of the customer . . . to Braunger Foods.”
The guaranty was signed by Sears, and contrary to a state­
ment in the Court of Appeals’ opinion, there was not a space
at the bottom of the guaranty for the signature of a Braunger
Foods representative.
The language of the guaranty does not limit its scope to
obligations incurred as a result of sales made pursuant to the
specific terms set forth in the credit application. The state­
ment at the bottom of the guaranty that the signer guarantees
payment “on terms that are approved” does not thereby limit
the obligation to the terms stated in the application but, giv­
ing the language its plain and ordinary meaning, reasonably
applies to all terms that are agreed to which logically includes
Nebraska Advance Sheets
36 286 NEBRASKA REPORTS
other terms agreed to and approved by the parties. See
McCully, Inc. v. Baccaro Ranch, 284 Neb. 160, 816 N.W.2d
728 (2012) (terms of contract are to be accorded their plain
and ordinary meaning). We conclude that the enforceability of
the guaranty was not dependent on completion of the entire
credit application and that instead, the guaranty was enforce­
able in itself.
The guaranty provides that Sears agrees “to pay . . . any
sums which may become due.” By its terms, the guaranty
applied to any indebtedness Hungry’s incurred for purchases
on credit from Braunger Foods. Although the district court
concluded that the sales terms of the incomplete credit appli­
cation were not enforceable, the court nevertheless found that
an agreement or agreements existed, whether oral or implied,
between Braunger Foods and Hungry’s for the sale of goods,
because the court concluded that Hungry’s owed Braunger
Foods for sales made in 2006 and in 2009 through 2010 in
the amount of $82,307.26, including prejudgment interest. No
party disputed this conclusion either on appeal to the Court of
Appeals or on further review to this court. Thus, the context in
which we consider this appeal is that it is an established fact
that Hungry’s owes Braunger Foods $82,307.26 for the receipt
of goods based on an enforceable agreement.
The district court found that the guaranty was not enforce­
able because the terms of sale provided for in the credit appli­
cation were not approved. However, this finding was inconsist­
ent with its undisputed finding that Hungry’s owed Braunger
Foods for unpaid invoices; such finding necessarily included
a finding that the parties had agreed to and approved some
terms for the sale of goods. Because the finding that Hungry’s
owed Braunger Foods certain amounts for unpaid invoices
was not disputed, and Sears had guaranteed any indebtedness
of Hungry’s to Braunger Foods, it was clear error for the dis­
trict court to find that the guaranty was not enforceable with
respect to such amounts, and the Court of Appeals erred when
it affirmed this determination.
The lack of the signature of a Braunger Foods represent­
ative does not alter our conclusion in this case in which
Braunger Foods seeks to enforce the guaranty against Sears,
Nebraska Advance Sheets
BRAUNGER FOODS v. SEARS 37
Cite as 286 Neb. 29who personally signed the guaranty. Nebraska’s statute of
frauds, Neb. Rev. Stat. § 36-202 (Reissue 2008), provides in
part that “every special promise to answer for the debt, default,
or misdoings of another person” shall be void unless it is “in
writing, and subscribed by the party to be charged therewith.”
In order for Braunger Foods to enforce the written guaranty
against Sears, only Sears’ signature was required, and the sig­
nature of a Braunger Foods representative was not required to
make the guaranty enforceable against Sears.
The language of the guaranty undermines two other argu­
ments made by Sears. First, Sears argues that because he
wrote the name “Hungry’s North Inc.” above his signature and
indicated his capacity as president, he was signing on behalf
of Hungry’s rather than himself, and that the effect of the guar­
anty was simply for Hungry’s to guaranty its own indebted­
ness. However, the guaranty states, “This guaranty is personal
to the undersigned. Any notation of corporate capacity shall
be taken as informational only and shall not effect [sic] the
personal nature of the guaranty.” Therefore, under the guar­
anty’s own terms, the inclusion of the name “Hungry’s North
Inc.” and Sears’ title as president vis-a-vis Hungry’s are to be
taken as informational only and the guaranty remains Sears’
personal guaranty.
Sears also argues that if a guaranty exists, it applies only
to credit extended after the guaranty was signed and not to
debt that had already been incurred. Sears notes that the dis­
trict court order indicated that the judgment against Hungry’s
includes amounts incurred both before and after the guaranty
was signed by Sears. Contrary to Sears’ argument, the guar­
anty states that the guaranty is “for such Indebtedness of the
customer to Braunger Foods as presently or hereafter exists.”
Therefore, in consideration of Braunger Foods’ extending fur­
ther credit to Hungry’s, Sears gave his personal guaranty both
for debt existing at the time the guaranty was signed as well as
for debt incurred thereafter. The guaranty therefore applies to
all amounts that the district court found owing from Hungry’s
to Braunger Foods.
In sum, we conclude that the guaranty should be considered
as an agreement separate from the rest of the credit application.
Nebraska Advance Sheets
38 286 NEBRASKA REPORTS
As such, the guaranty was complete, and by its terms, it was
enforceable against Sears as to all amounts that the court found
owing from Hungry’s to Braunger Foods.
CONCLUSION
We conclude that the Court of Appeals erred when it deter­
mined that the guaranty was not enforceable against Sears and
when it therefore affirmed the district court’s order. We reverse
the decision of the Court of Appeals and remand the cause to
the Court of Appeals with directions to reverse the decision of
the district court as it pertains to Sears’ guaranty and to remand
the cause to the district court with directions to enter judgment
against Sears in accordance with this opinion.
R eversed and remanded with directions.
Miller-Lerman, J., participating on briefs.
State of Nebraska, appellee, v.
Gary L. Sikes, appellant.
___ N.W.2d ___
Filed June 14, 2013. No. S-12-399.
1. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre­
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
2. Sentences: Appeal and Error. An appellate court will not disturb a sen­
tence imposed within the statutory limits absent an abuse of discretion by the
trial court.
3. Statutes: Appeal and Error. Statutory language is to be given its plain and ordi­
nary meaning, and an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and unambiguous.
4. Sentences. In imposing a sentence, the sentencing court is not limited to any
mathematically applied set of factors.
5. ____. The appropriateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all the facts surrounding the defendant’s life.
6. ____. A sentence at the maximum limit is still within that limit—it is only if
the sentence exceeds the statutory limit that it becomes “excessive” as a matter
of law.
Appeal from the District Court for Hall County: William T.
Wright, Judge. Affirmed.