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### STATE OF MICHIGAN

COURT OF APPEALS

FIRST NATIONAL BANK OF OMAHA,

Plaintiff-Appellee, UNPUBLISHED August 4, 2015

v No. 322093

Kent Circuit Court DOUGLAS NAGEL, LC No. 13-006483-CK

Defendant-Appellant,

and

HI-TECH/FPA, INC.,

Defendant.

Before: M ARKEY , P.J., and M URPHY and S TEPHENS , JJ.

P ER C URIAM

.

Defendant, Douglas Nagel, appeal s as of right the trial court’ s judgment entered in favor of plaintiff First National Bank of Omaha following a grant of summary disposition to plaintiff pursuant to MCR 2.116(C)(10). We affirm.

Hi-Tech/FPA, Inc. (hereafter Hi -Tech) CEO Guy Roberts entered into a commercial credit card agreement with pla intiff. Defendant signed a guara nty agreement making him a personal guarantor of Hi-Tech’s credit card account with plaint iff. Relevant terms of the guaranty provided that “[n]o waiver, modification, release, or revocation of this Guaranty or any liability created hereunder shall be effective unless in writin g and signed by FNBO,” and that “[n]o termination or revocation by any Guarantor shall operate to relieve such Guarantor from its responsibility for indebtedness ar ising prior to the fifteenth (15th) day following receipt of written notice by FNBO at [addre ss], Attention: FNCCC Legal, wh ich notice must be sent by certified mail, return receipt re quested. This Guaranty may no t be amended except in writing signed by FNBO and the Guarantor(s) bound by the amendment.” R oberts subsequently faxed a letter to plaintiff which read, in relevant part, “Please remov e Doug Nagel as guarantor on the account . . . . Please contact me should you have any question s regarding this.” Plaintiff mailed Hi-Tech a new guaranty contract so Hi-Tech could appoint a new guarantor, but Hi-Tech did not return it. Defendant never per sonally contacted plaintiff to r evoke his status as guarantor. HiTech began to accrue past due amounts owed to plaintiff, defaul ted on its payment obligations,-2- and ultimately ceased to do business. Plaintiff filed a compla int against defendant for breach of contract and accounts stated for the past due amount of $48,849 .28 plus costs, interest, and attorney’s fees. The trial cour t granted plaintiff’s motion fo r summary disposition under MCR 2.116(C)(10), and entered judgment for plaintiff.

On appeal, defendant argues that he established a genuine issu e of material fact whether

the revocation was valid. We review de novo the trial court’s decision on a motion for summary disposition under MCR 2.116(C)(10). Dressel v Ameribank , 468 Mich 557, 561; 664 NW2d 151 (2003). Summary disposition is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Smith v Globe Life Ins Co , 460 Mich 446, 454-455; 597 NW2d 28 (1999). In deciding if an issue of m aterial fact exists, we view all affidavits, pleadings, depositions, admissions, and documents i n a light most favorable to the opposing party. Id . at 454.

The guaranty provided that it “shall be construed according to the laws of the State of Nebraska.” Accordingly, we look to Nebraska law in construing the guaranty. Under Nebraska law, the intention of the partie s to a contract is determined s olely from the contents of the

contract. Gibbons Ranches, LLC v Bailey , 289 Neb 949, 959; 857 NW2d 808 (2015). A contract’s clear and unambiguous language is not subject to int erpretation or construction and must be enforced according to its terms. Daehnke v Nebraska Dep’t of Social Servs , 251 Neb 298, 304; 557 NW2d 17 (1996). A court may not rewrite a contra ct where its terms are expressly

stated. Kozlik v Emelco, Inc , 240 Neb 525, 536; 483 NW2d 114 (1992). Where a guaranty contract’s meaning is ascertained or its terms clearly defined, “the liability of the guarantor is controlled absolutely by such meaning and limited to the precis e terms.” Prod Credit Ass’n of

Midlands v Schmer , 233 Neb 749, 755; 448 NW2d 123 (1989), quoting Fed Deposit Ins Corp v Heyne , 227 Neb 291, 293, 417 NW2d 162 (1987).

The parties’ guaranty unambiguous ly required the revoking guar antor to send a written and signed notice of revocation to plaintiff at a specific addr ess, by certified mail with return receipt request, to the attenti on of FNCCC Legal. The guaranty also required plaintiff to sign the revocation. It is undisputed tha t Roberts, not defendant (the guarantor), sen t the purported revocation letter. Moreover, Robe rts faxed the letter, rather than sending it by certified mail to the specified address with return receipt requested. Roberts a lso did not address the letter to the attention of FNCCC Legal. Final ly, defendant did not sign the letter, nor did Roberts obtain plaintiff’s signature agreeing to the revocation. The purporte d letter of revocation thus did not meet the guaranty’s unambiguous requirements for a valid revoca tion. Therefore, by the plain meaning of the guaranty, see Prod Credit Ass’n of Midlands , 233 Neb at 755 (quotation and citation omitted), the purported revocation did not “operate to relieve” defendant of his “responsibility for indebtedness,” and he remained liable for H i-Tech’s subsequent balances on its credit card account with plaintiff. Defendant has not esta blished a genuine issue of material fact as to the validity of the revocation. Smith , 460 Mich at 455. Plaintiff was thus entitled to summary disposition under MCR 2.116(C)(10) and the trial court properly entered judgment in-3- favor of plaintiff. Id

.

Affirmed.

/s/ Jane E. Markey /s/ William B. Murphy /s/ Cynthia Diane Stephens