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Nebraska Supreme Court Advance S

300 Nebraska Report

RAY ANDERSON, INC. v. BUCK’S, INC.

Cite as 300 Neb. 434

Ray Anderson, Inc., a Nebraska corp

appellee and cross-appellant, v. Buck’s,

a Nebraska corporation, appel

and cross-appelle

___ N.W.2d ___

Filed July 6, 2018. No. S-17-816.

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. Declaratory Judgments: Appeal and Error. In an appeal from a 

declaratory judgment, an appellate court, regarding questions of law, has 

an obligation to reach its conclusion independently of the conclusion 

reached by the trial court.

4. Contracts. The meaning of a contract and whether a contract is ambiguous are questions of law.

5. ____. In interpreting a contract, a court must first determine, as a matter 

of law, whether the contract is ambiguous.

6. 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.

7. Contracts. The meaning of an ambiguous contract is generally a question of fact.

8. ____. A contract written in clear and unambiguous language is not subject to interpretation or construction and must be enforced according to 

its terms.

Nebraska Supreme Court Online Library

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

07/26/2018 01:08 AM CDT
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RAY ANDERSON, INC. v. BUCK’S, INC.

Cite as 300 Neb. 434

9. ____. The court must accord clear terms their plain and ordinary meaning as an ordinary or reasonable person would understand them.

10. ____. The fact that the parties have suggested opposite meanings of a 

disputed instrument does not necessarily compel the conclusion that the 

instrument is ambiguous.

11. ____. A court is not free to rewrite a contract or to speculate as to terms 

of the contract which the parties have not seen fit to include.

12. ____. Extrinsic evidence is not permitted to explain the terms of a contract that is unambiguous.

13. ____. Instruments made in reference to and as part of the same transaction are to be considered and construed together.

14. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Douglas County: Gary B.

Randall, Judge. Affirme

Stephen M. Kalhorn, Benjamin W. Hulse, of Blackwell 

Burke, P.A., and John P. Passarelli, of Kutak Rock, L.L.P., for 

appellant.

Aaron F. Smeall and Jacob A. Acers, of Smith, Slusky, 

Pohren & Rogers, L.L.P., for appellee.

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

Papik, JJ., and Daugherty, District Ju

Daugherty, District Judg

In this declaratory judgment action, the district court for 

Douglas County determined that a contract between Ray 

Anderson, Inc. (Anderson), and Buck’s, Inc., to supply 

“BP-branded” motor fuel did not prevent Anderson from contracting with a competitor, Western Oil, Inc., to rebrand fuel 

sold at some of Anderson’s facilities. The court further found 

that Buck’s held a unilateral right to terminate the fuel supply 

agreement. Upon our de novo review, we reach the same conclusion. Therefore, we affirm.
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Nebraska Supreme Court Advance S

300 Nebraska Report

RAY ANDERSON, INC. v. BUCK’S, INC.

Cite as 300 Neb. 434

BACKGROUND

Parties and Governing 

Anderson is a Nebraska corporation operating retail gasoline 

stations and convenience stores in Omaha, Nebraska. Buck’s 

is a Nebraska corporation which also operates retail gasoline 

stations in Omaha. In addition, Buck’s acts as a “jobber” by 

purchasing fuel from BP Products North America Inc. (BP) and 

selling BP-branded fuel to individual gasoline stations, including to some of Anderson’s stations.

Before Anderson entered into the BP-branded fuel supply 

contract with Buck’s, Anderson was also a “jobber” and had 

purchased BP-branded gasoline directly from BP. In 2007, 

Anderson was unable to meet its gasoline sales commitments 

to BP and incurred $840,000 in volume fees. Buck’s agreed to 

“bail out” Anderson and assumed Anderson’s contractual rights 

and obligations under its “jobber” agreement with BP.

On July 30, 2007, the parties entered into a series of agreements. The parties executed a “Jobber Purchase and Sale 

Agreement,” in which Buck’s agreed to (1) pay Anderson 

$300,000, (2) assume Anderson’s $840,000 liability to BP, 

and (3) assume Anderson’s volume sales commitments to BP. 

The parties also entered into a fuel supply contract entitled the 

“Subjobber Supply Agreement” (the Agreement), which incorporated a rider entitled the “Electronic Dealer Delivery Plan” 

(the EDDP). The parties’ rights under the Agreement are at 

issue in this appeal.

In December 2015, Anderson negotiated terms with Western 

Oil, a competitor of BP, to sell Shell Oil Company-branded 

gasoline at four of Anderson’s stations. Anderson claims that 

on January 11, 2016, it informed Buck’s of its agreement with 

Western Oil. Buck’s issued cease-and-desist letters to Anderson 

and Western Oil the following day. The letter Buck’s sent to 

Anderson stated:

Buck’s . . . and . . . Anderson executed [the] Agreement 

. . . .
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Nebraska Supreme Court Advance S

300 Nebraska Report

RAY ANDERSON, INC. v. BUCK’S, INC.

Cite as 300 Neb. 434

It has been brought to our attention that you may be 

contemplating the breach of [the] Agreement by entering 

into a like contract with other suppliers.

. . . .

. . . Paragraph 20(b) of the Agreement imposes upon 

you an affirmative duty to avoid entering into an agreement with other suppliers, which would breach [the] 

Agreement.

Anderson filed suit seeking a declaration that it was not 

prohibited from rebranding under the Agreement, and Buck’s 

counterclaimed, seeking a declaration that the Agreement 

required Anderson to buy BP-branded fuel and damages for 

anticipatory repudiation.

District Court Pr

Anderson’s complaint requested the court to declare, pursuant to Nebraska’s Uniform Declaratory Judgments Act, Neb. 

Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2016), the rights 

of the parties under the Agreement; to find that the Agreement 

does not prohibit Anderson from withdrawing and rebranding some of its facilities; and to determine that if Anderson 

sought to terminate the Agreement, it could do so upon reasonable notice.

The answer and counterclaim filed by Buck’s alleged that 

the Agreement requires Anderson to buy BP-branded fuel 

from Buck’s for sale at Omaha-area facilities identified in 

the Agreement. The counterclaim stated, “Read together, 

Paragraphs 20(b) and 36 [of the Agreement] impose an affirmative duty on [Anderson] to . . . avoid discontinuing . . . 

the sale of [Buck’s]-supplied BP-branded gasoline.” It further 

stated, “[Anderson’s] affirmative duty is extremely important 

to [Buck’s],” and “[t]his re-branding will send the message to 

potential customers that [Anderson] endorses another brand, 

and no longer stands by BP.” Buck’s claimed Anderson’s 

agreement with Western Oil constituted a material breach 
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Nebraska Supreme Court Advance S

300 Nebraska Report

RAY ANDERSON, INC. v. BUCK’S, INC.

Cite as 300 Neb. 434

of the Agreement and requested declaratory relief, injunctive 

relief, and monetary damages.

Both parties moved for summary judgment on their declaratory judgment claims, and following a hearing, the district 

court granted Anderson’s motion and denied the motion filed 

by Buck’s. In considering the motion filed by Buck’s, the 

court analyzed provisions within the Agreement, including 

section 19, titled “Grounds for Termination and Nonrenewal”; 

section 20(b), found under the section titled “Procedures for 

Termination or Nonrenewal”; and section 36, titled “Franchise 

Relationship.” The court found it was unclear whether these 

provisions of the Agreement could be construed together to 

support the position of Buck’s, and stated that “the Agreement 

itself is, at the very least, ambiguous as to whether Anderson 

rebranding its stations would violate Section 20(b) of the 

Agreement.” Based upon its review of the Agreement alone, 

the court denied the motion filed by Buck’s.

 The court continued its analysis and discussed provisions of the EDDP in reviewing Anderson’s motion. The 

court pointed to section 12 of the EDDP, titled “Independent 

Business,” which provides that “[n]othing herein shall obligate [Buck’s] to sell or [Anderson] to purchase products, nor 

preclude [Anderson] from selling competitive-brand products 

. . . provided there occurs no infringement of [the] Branded 

Trade Identities” of Buck’s. The court determined that section 12 of the EDDP was clear and unambiguous and that the 

Agreement and the EDDP must be read together as a whole. 

The court concluded that “nothing within either the Agreement 

or the EDDP prohibits Anderson from selling competitivebrand products.”

The court then found that even if Buck’s interpretation of 

its rights under the Agreement were correct, the EDDP provides that “in the event of a conflict between [the Agreement 

and the EDDP], the terms of the [EDDP] shall supersede any 

conflicting provisions elsewhere.” The court found Anderson’s 
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Nebraska Supreme Court Advance S

300 Nebraska Report

RAY ANDERSON, INC. v. BUCK’S, INC.

Cite as 300 Neb. 434

right to rebrand under section 12 of the EDDP controlled 

over any affirmative duty to avoid rebranding imposed by 

the Agreement.

In a separate order, the court rejected Anderson’s argument 

that it may terminate the Agreement upon reasonable notice. 

The court determined that the Agreement grants Buck’s “an 

unambiguous and valid unilateral right of termination.” The 

court stated, “Anderson cannot, by invoking [its] contracted for 

right to rebrand, also circuitously assume the uncontracted for 

power to terminate the Agreement.”

Buck’s appealed, Anderson filed a cross-appeal, and we 

moved the appeals to our docket.

ASSIGNMENTS OF ERROR

Buck’s assigns, restated, that the district court erred by (1) 

interpreting the Agreement in a way to permit Anderson to 

discontinue buying BP-branded fuel from Buck’s and commence buying Shell Oil Company-branded fuel from a thirdparty suppler, notwithstanding affirmative duties imposed 

upon Anderson by the Agreement; (2) finding that the EDDP 

released Anderson of its obligation to buy fuel from Buck’s and 

concluding that the EDDP superseded conflicting provisions in 

the Agreement; and (3) failing to resolve contractual ambiguities through a trial.

On cross-appeal, Anderson assigns that the district court 

erred by (1) finding that Anderson has no right to terminate the 

Agreement and the EDDP and (2) failing to find that Anderson 

can terminate upon reasonable notice.

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 
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Nebraska Supreme Court Advance S

300 Nebraska Report

RAY ANDERSON, INC. v. BUCK’S, INC.

Cite as 300 Neb. 434

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

[3,4] In an appeal from a declaratory judgment, an appellate court, regarding questions of law, has an obligation to 

reach its conclusion independently of the conclusion reached 

by the trial court.3 The meaning of a contract and whether a 

contract is ambiguous are questions of law.4

ANALYSIS

We first address the appeal filed by Buck’s regarding 

the issue of whether the Agreement and the EDDP prevent 

Anderson from rebranding fuel sold at some of its stations. 

We then address Anderson’s cross-appeal regarding the issue 

of whether Anderson has a contractual right to terminate the 

Agreement. In both appeals, we find the plain language of the 

Agreement and the EDDP compels affirmance of the district 

court’s decision.

[5-7] In interpreting a contract, a court must first determine, 

as a matter of law, whether the contract is ambiguous.5 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.6 The meaning of an 

ambiguous contract is generally a question of fact.7

1 Walters v. Colford, 297 Neb. 302, 900 N.W.2d 183 (2017).

2 Id.

3 State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 

N.W.2d 14 (2004).

4 Facilities Cost Mgmt. Group v. Otoe Cty. Sch. Dist., 291 Neb. 642, 868 

N.W.2d 67 (2015).

5 Id.

6 Id.

7 Id.
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RAY ANDERSON, INC. v. BUCK’S, INC.

Cite as 300 Neb. 434

[8-12] A contract written in clear and unambiguous language is not subject to interpretation or construction and must 

be enforced according to its terms.8 The court must accord 

clear terms their plain and ordinary meaning as an ordinary 

or reasonable person would understand them.9 The fact that 

the parties have suggested opposite meanings of a disputed 

instrument does not necessarily compel the conclusion that 

the instrument is ambiguous.10 A court is not free to rewrite 

a contract or to speculate as to terms of the contract which 

the parties have not seen fit to include.11 Extrinsic evidence 

is not permitted to explain the terms of a contract that is 

unambiguous.12

Buck’s App

The issue in the appeal filed by Buck’s is whether the 

Agreement imposes an affirmative duty upon Anderson not 

to rebrand. We conclude, as a matter of law, that the terms 

of the Agreement and the EDDP are unambiguous and do not 

prevent Anderson from rebranding. As a result, the court did 

not err when it denied the motion for summary judgment filed 

by Buck’s.

Buck’s asserts that numerous provisions in the Agreement 

preclude Anderson from rebranding. Buck’s points to sections 

6, 19, 20, and 36 of the Agreement and contends that these 

provisions require Anderson to sell BP-branded fuel purchased 

from Buck’s and thus prohibit rebranding. Anderson, for its 

8 Frohberg Elec. Co. v. Grossenburg Implement, 297 Neb. 356, 900 N.W.2d 

32 (2017).

9 Kasel v. Union Pacific RR. Co., 291 Neb. 226, 865 N.W.2d 734 (2015).

10 Id.; Sack Bros. v. Tri-Valley Co-op., 260 Neb. 312, 616 N.W.2d 786 

(2000).

11 Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011); Gary’s 

Implement v. Bridgeport Tractor Parts, 270 Neb. 286, 702 N.W.2d 355 

(2005).

12 In re Claims Against Pierce Elevator, 291 Neb. 798, 868 N.W.2d 781 

(2015).
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RAY ANDERSON, INC. v. BUCK’S, INC.

Cite as 300 Neb. 434

part, makes counterarguments that those same terms of the 

Agreement do not prohibit it from selling fuel purchased from 

another source.

[13] Our inquiry as to the parties’ agreement concerning 

rebranding, however, is not limited to the Agreement. The 

parties also entered into the EDDP on the same day as the 

Agreement. We consider and construe together instruments 

made in reference to and as part of the same transaction.13 It 

is particularly clear that the Agreement and the EDDP must 

be construed together, because the agreements are related 

and are part of one transaction. The parties agreed that they 

are actually part of the same agreement: The first line of the 

EDDP states that it is “attached to and made a part of [the 

Agreement] dated [July 30, 2007,] between [Buck’s] and 

[Anderson].”

The EDDP directly speaks to rebranding. Section 12 of the 

EDDP, titled “Independent Business,” provides that “[n]othing herein shall obligate [Buck’s] to sell or [Anderson] to 

purchase products, nor preclude [Anderson] from selling 

competitive-brand products . . . .” Buck’s is forced to concede that section 12 pertains to rebranding, but it contends 

that the word “herein” limits the scope of that language. 

According to Buck’s, “‘herein’” must be understood as meaning “‘in this’”14 and thus section 12 of the EDDP should be 

understood as governing the EDDP alone. Buck’s argues the 

EDDP merely concerns fuel delivery and does not alter terms 

within the Agreement which preclude Anderson from selling 

competitive-brand products. We are not persuaded.

The attempt by Buck’s to limit the scope of section 12 via 

the word “herein” fails because the parties explicitly made 

the EDDP part of the Agreement. Accordingly, the word 

“herein” must refer to both the Agreement and the EDDP. 

13 McCord & Burns Law Firm v. Piuze, 276 Neb. 163, 752 N.W.2d 580 

(2008).

14 Brief for appellant at 14.
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RAY ANDERSON, INC. v. BUCK’S, INC.

Cite as 300 Neb. 434

Because the Agreement and the EDDP together constitute 

one agreement, it is difficult to see what purpose section 12 

of the EDDP would serve under the interpretation provided 

by Buck’s.

Having concluded that section 12 of the EDDP applies to 

both the Agreement and the EDDP, this case becomes considerably easier to resolve. Section 12 makes clear that there is 

nothing in the Agreement (or EDDP) that precludes Anderson 

from rebranding. And while we have not forgotten the various 

arguments Buck’s premised on sections 6, 19, 20, and 36 of 

the Agreement, those arguments lose all of their force in light 

of the clear language permitting Anderson to rebrand in section 12 of the EDDP.

The most Buck’s could accomplish with its arguments 

based on the terms of the Agreement would be to show a conflict between the Agreement and the EDDP. But that would 

not be enough, because section 10 of the EDDP directly 

speaks to that possibility. It provides that to the extent there 

is any conflict between the terms of the Agreement and 

the terms of the EDDP, the EDDP’s terms shall control. 

Accordingly, there is no way Buck’s can show that there is 

contractual ambiguity as to whether Anderson may rebrand, let 

alone show that the parties’ agreements unambiguously prohibit rebranding.

[14] Because the unambiguous terms of the parties’ agreements permit rebranding, we find that the district court correctly denied the motion for summary judgment filed by 

Buck’s. Because we find that the terms of the Agreement and 

the EDDP are unambiguous, we need not address the final 

assignment of error of Buck’s that the court erred by not 

resolving contractual ambiguities through a trial. An appellate 

court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.15

15 Woodmen of the World v. Nebraska Dept. of Rev., 299 Neb. 43, 907 

N.W.2d 1 (2018).
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300 Nebraska Report

RAY ANDERSON, INC. v. BUCK’S, INC.

Cite as 300 Neb. 434

Anderson’s Cross-Ap

The issue in Anderson’s cross-appeal is whether the 

Agreement affords Anderson a right of termination. We conclude, as a matter of law, that the terms of the Agreement are 

unambiguous and afford Anderson no right of termination. As 

a result, the court did not err when it denied that aspect of 

Anderson’s motion for summary judgment.

Anderson acknowledges the Agreement grants Buck’s the 

sole authority to terminate and is silent regarding any right of 

termination held by Anderson, and Anderson does not challenge the enforceability of a unilateral right to terminate a 

contract under Nebraska law. Anderson is concerned, however, 

that the Agreement is for an indefinite period and may no 

longer be “commercially reasonable,”16 especially where the 

Agreement does not obligate Anderson to buy BP-branded fuel 

exclusively from Buck’s. Anderson argues this court should fill 

the gap under Nebraska’s Uniform Commercial Code, specifically Neb. U.C.C. § 2-309(2) and (3) (Reissue 2001), in order 

to grant Anderson both an uncontracted-for right of termination 

and to provide that such right of termination is effective upon 

reasonable notice. This we will not do.

Sections 19 and 20 of the Agreement contemplate that the 

power to terminate is held by only Buck’s, and there are no 

similar provisions in the Agreement or the EDDP providing 

such a right to Anderson. Section 36 provides that even in 

a situation such as this case, where Anderson has elected to 

rebrand, Anderson would not have the power to terminate and 

the Agreement “shall remain in effect.”

Section 2-309(2) of the Uniform Commercial Code states, 

“Where the contract provides for successive performances 

but is indefinite in duration it is valid for a reasonable time 

but unless otherwise agreed may be terminated at any time 

by either party.” Buck’s argues that § 2-309(2) does not 

apply, because the parties “otherwise agreed” that Buck’s 

16 Brief for appellee on cross-appeal at 22.
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RAY ANDERSON, INC. v. BUCK’S, INC.

Cite as 300 Neb. 434

has the sole power to terminate. The district court found that 

“[§] 2-309(2) . . . cannot be used to contradict the express 

provisions of the Agreement.” We agree with Buck’s and the 

district court, and we find Buck’s has the sole right to terminate the Agreement. We therefore affirm the judgment of the 

district court.

CONCLUSION

We determine the district court did not err when it determined that the Agreement and the EDDP do not prohibit 

Anderson from rebranding fuel sold at some of its stations and 

that Buck’s holds the sole right to terminate the Agreement. 

For the reasons explained above, we affirm.

Affir