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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

BIERMAN v. BENJAMIN

Cite as 305 Neb. 860

Douglas S. Bierman and James A. Hoppenstedt, 

appellees and cross-appellants, v. 

Brenda L. Benjamin, personally and 

individually, et al., appellants 

and cross-appellees.

___ N.W.2d ___

Filed May 22, 2020. No. S-18-915.

1. 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 of law.

2. ____: ____. 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 evidence.

3. Contracts. The interpretation of a contract and whether the contract is 

ambiguous are questions of law subject to independent review.

4. Appeal and Error: Words and Phrases. Plain error exists where there 

is an error, plainly evident from the record but not complained of at 

trial, which prejudicially affects a substantial right of a litigant and is of 

such a nature that to leave it uncorrected would cause a miscarriage of 

justice or result in damage to the integrity, reputation, and fairness of the 

judicial process.

5. Appeal and Error. An appellate court may, at its option, notice plain 

error.

6. Contracts. In interpreting a contract, a court must first determine, as a 

matter of law, whether the contract is ambiguous.

7. 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/17/2020 08:08 AM CDT
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BIERMAN v. BENJAMIN

Cite as 305 Neb. 860

8. Contracts. When the terms of a contract are clear, a court may not 

resort to rules of construction, and the terms are to be accorded their 

plain and ordinary meaning as an ordinary or reasonable person would 

understand them.

9. ____. The fact that the parties have suggested opposing meanings of a 

disputed instrument does not necessarily compel the conclusion that the 

instrument is ambiguous.

10. Contracts: Evidence. A contract found to be ambiguous presents a 

question of fact and permits the consideration of extrinsic evidence to 

determine the meaning of the contract.

Appeal from the District Court for Buffalo County: John H. 

Marsh, Judge. Reversed and remanded for further proceedings.

Bradley D. Holbrook and Nicholas R. Norton, of Jacobsen, 

Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellants.

William J. Lindsay, Jr., and John A. Svoboda, of Gross & 

Welch, P.C., L.L.O., Kenneth F. George, of Ken George Law 

Office, and Luke M. Simpson, of Bruner, Frank & Schumacher, 

L.L.C., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Per Curiam.

INTRODUCTION

Plaintiffs Douglas S. Bierman (Doug) and James A. 

Hoppenstedt (Jim) filed a complaint against Brenda L. 

Benjamin and BD Construction, Inc./Kearney (BD), alleging 

various causes of action: to require Brenda to sell shares of 

BD, to remove Brenda as an officer and director of BD, for 

an accounting, and for damages based upon breach of fiduciary duty. Following a grant of partial summary judgment in 

favor of Doug and Jim and a trial, the court set a value for 

BD, found that Brenda had breached her fiduciary duty to 

BD, removed Brenda as an officer and director of BD, and 

awarded Brenda $1,703,197.79. We reverse, and remand for 

further proceedings.
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305 Nebraska Reports

BIERMAN v. BENJAMIN

Cite as 305 Neb. 860

BACKGROUND

BD is a construction company operated out of Kearney, 

Nebraska. At all times relevant to this litigation, BD had three 

shareholders: Mark W. Benjamin, who was a director and 

president and owned 59 percent of the shares; Doug, a director 

who owned 25 percent of the shares; and Jim, also a director, who owned 16 percent of the shares. The three entered 

into a buy-sell agreement on September 29, 2009, which 

provided for the sale and purchase of BD shares in a variety 

of scenarios.

Mark died on April 14, 2015. On May 26, Brenda was 

appointed to serve as president of BD, but Doug ran the company on a day-to-day basis. On April 20, 2016, Brenda terminated the employment of Doug and Jim. On May 6, Doug and 

Jim filed this lawsuit against Brenda and BD, initially seeking 

specific performance of the buy-sell agreement, an accounting, 

and the appointment of new officers and directors. Doug and 

Jim also sought damages for wrongful termination and breach 

of fiduciary duty.

Prior to trial, Doug and Jim filed a motion for summary 

judgment seeking a finding that the buy-sell agreement was 

enforceable. The district court granted summary judgment to 

Doug and Jim on that issue. The court reserved for trial the 

issue of the value of BD. Following trial, the district court valued BD, as of the date of Mark’s death, at $3.8 million, with 

Mark’s 59-percent interest valued at $2.242 million. In addition, the district court found that Brenda breached her fiduciary 

duty to BD and its shareholders in various ways. In accordance 

with the preceding findings, the district court awarded Brenda 

$1,703,197.79 for Mark’s interest in BD. Brenda appeals, and 

Doug and Jim cross-appeal.

ASSIGNMENTS OF ERROR

On appeal, Brenda alleges that the district court erred in 

(1) granting partial summary judgment finding the buy-sell 

agreement enforceable; (2) finding that she acted in bad faith, 
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BIERMAN v. BENJAMIN

Cite as 305 Neb. 860

finding that she breached her fiduciary duties, and in removing 

her as a director and officer of BD; (3) not admitting testimony 

from Brenda’s advisors regarding the good faith and reasonableness of the process utilized to set bonuses and of Brenda’s 

review of applicable industry standards; (4) setting the value of 

Mark’s shares, both because April 14, 2015, the date of Mark’s 

death, bore no relationship to the value of BD and because 

life insurance proceeds received by BD on Mark’s life were 

excluded; and (5) allowing a certified public accountant to testify regarding bonuses and compensation, because he was not 

qualified as an expert.

On cross-appeal, Doug and Jim assign that the district court 

erred in (1) reducing their damage award by 59 percent as to 

the distribution of bonuses, (2) failing to reinstate the debt or 

receivables owed to BD by Brenda and the estate, and (3) not 

awarding them attorney fees.

STANDARD OF REVIEW

[1,2] 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 of law. 1 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 evidence. 2

[3] The interpretation of a contract and whether the contract is ambiguous are questions of law subject to independent review. 3

1 Merrick v. Fischer, Rounds & Assocs., ante p. 230, 939 N.W.2d 795 

(2020).

2 Id.

3 DH-1, LLC v. City of Falls City, ante p. 23, 938 N.W.2d 319 (2020).
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BIERMAN v. BENJAMIN

Cite as 305 Neb. 860

[4,5] Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such 

a nature that to leave it uncorrected would cause a miscarriage 

of justice or result in damage to the integrity, reputation, and 

fairness of the judicial process. 4 An appellate court may, at its 

option, notice plain error. 5

ANALYSIS

Brenda assigns that the district court erred when it granted 

partial summary judgment in favor of Doug and Jim on the 

issue of the enforceability of the buy-sell agreement.

As relevant to this issue, article III of the buy-sell agreement 

states that “in the event of the death of a Shareholder, and only 

in such event, the Corporation will be required and shall, to the 

fullest extent permitted by applicable law, purchase the shares 

of stock of the Deceased Shareholder from the legal representative of the Deceased Shareholder’s estate.”

Article V purports to deal with the determination of purchase price in the event of the sale of shares. Section 5.1 

applies where the shares are for sale pursuant to an offer of the 

disposing shareholder. Section 5.2 purports to apply to “Other 

Operative Events” and provides:

In the case of all other Operative Events other than the 

Death of Shareholder, the price per share of the shares of 

stock shall be paid by the Corporation and/or the Nondisposing Shareholders. The price per share shall be the 

price which is agreed to annually by the Shareholders and 

attached hereto as an Exhibit. In the event of the failure 

to agree for two (2) consecutive years, the parties agree 

that the Corporation will employ an independent third 

party to appraise the business and determine the price per 

4 Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).

5 Id.
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Cite as 305 Neb. 860

share, with appraisal costs split between the Corporation 

and the Shareholders as a group.

(Emphasis supplied.)

The district court found that the agreement was unambiguous, reasoning that the exclusion for “the death of a shareholder” noted in the first sentence did not modify the pricing 

method set forth in the second sentence. For that reason, the 

court concluded that the pricing method set forth in the second 

sentence should be used to calculate the share price for all 

operative events.

[6-10] In interpreting a contract, a court must first determine, as a matter of law, whether the contract is ambiguous. 6

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. 7 When the 

terms of a contract are clear, a court may not resort to rules of 

construction, and the terms are to be accorded their plain and 

ordinary meaning as an ordinary or reasonable person would 

understand them. 8 The fact that the parties have suggested 

opposing meanings of a disputed instrument does not necessarily compel the conclusion that the instrument is ambiguous. 9 A contract found to be ambiguous presents a question 

of fact and permits the consideration of extrinsic evidence to 

determine the meaning of the contract. 10

None of the parties have challenged the district court’s underlying determination that the buy-sell agreement was unambiguous, though they disagree as to the meaning of the agreement. 

But an appellate court may, at its option, notice plain error. 11

6 Wintroub v. Nationstar Mortgage, 303 Neb. 15, 927 N.W.2d 19 (2019).

7 Id.

8 Gibbons Ranches v. Bailey, 289 Neb. 949, 857 N.W.2d 808 (2015).

9 Id.

10 David Fiala, Ltd. v. Harrison, 290 Neb. 418, 860 N.W.2d 391 (2015).

11 Mays v. Midnite Dreams, supra note 4.
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BIERMAN v. BENJAMIN

Cite as 305 Neb. 860

We do so here because we find the buy-sell agreement to be 

clearly ambiguous on the question of what pricing mechanism, 

if any, is set forth by the document.

In this case, we find the buy-sell agreement to be susceptible to multiple meanings. Most notably, section 3.1 provides 

that in the event of the death of a shareholder, BD is required, 

“[s]ubject to the terms and conditions as set forth herein,” to 

purchase those shares from the estate of the deceased shareholder. While the agreement provides for the procedure to 

be followed for such a purchase via section 6.3, it does not 

include any explicit provision with language setting forth the 

price to be paid in that event. Article V purports to deal with 

the “Determination of Purchase Price,” but has language that 

could be read as excluding “the death of a shareholder” from 

that particular pricing mechanism.

While section 3.1 states that the agreement sets forth certain 

“terms and conditions” to follow to effectuate such a purchase, there is an interpretation of the agreement that would 

not provide all necessary “terms and conditions.” In addition, 

we observe that language in the agreement allowing for the 

purchase of life insurance policies to facilitate the purchase of 

the shares as required by the agreement could arguably be read 

as providing a pricing mechanism for the purchase of shares in 

the event of the death of a shareholder.

In short, it is not possible to determine the meaning of the 

buy-sell agreement as applied to the death of a shareholder. 

We find plain error in the district court’s determination that the 

buy-sell agreement was unambiguous. The interpretation of an 

ambiguous contract presents an issue of fact not appropriate 

for determination on summary judgment. The consideration of 

extrinsic evidence is necessary to determine the meaning of 

the buy-sell agreement.

Accordingly, we find merit to Brenda’s assignment of error 

asserting that the grant of partial summary judgment was 

in error. We reverse the district court’s grant of summary 
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BIERMAN v. BENJAMIN

Cite as 305 Neb. 860

judgment and remand the cause to the district court for further proceedings. Because we find that the grant of summary 

judgment was error, we decline to reach the remainder of 

Brenda’s assignments of error or to reach Doug and Jim’s 

cross-appeal.

CONCLUSION

The district court’s grant of summary judgment is reversed 

and the cause remanded for further proceedings.

Reversed and remanded for 

further proceedings.