Nebraska Advance She

BRAUNGER FOODS v. SEARS 29

Cite as 286 Neb. 29

respondent is directed to pay costs and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissu

2012) and Neb. Ct. R. §§ 3-310(P) and 3-323 of the disciplinary rules within 60 days after an order imposing costs an

expenses, if any, is entered by the court.

Judgment of disbarmen

Braunger Foods, LLC, formerly known

of Iowa, LLC, doing business as Br

Foods, appellant, v. Michael 

and Hungry’s North, Inc., app

___ N.W.2d ___

Filed June 14, 2013. No. S-11-110

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 obligation 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 guaranty law.

7. Contracts: Guaranty: Intent. 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.

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 undertaking 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 construing it with another instrument.
Nebraska Advance She

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

District Court for Dakota County, Paul J. Vaughan, Jud

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

and Cassel, J

Per Curia

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 concluded 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 district court’s conclusion that the guaranty was not enforceable 

against Sears. Neither Hungry’s nor Sears appealed the finding 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 She

BRAUNGER FOODS v. SEARS 31

Cite as 286 Neb. 29

remand 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-deliver

status. Before it would allow Hungry’s to resume buying 

on credit, Braunger Foods asked Sears to sign certain documents 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 customer. 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 She

32 286 NEBRASKA REPORTS

to as the Customer) hereby personally guaranty payment 

of all obligations of the customer (including all interest, 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 customer. 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 supplying 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 She

BRAUNGER FOODS v. SEARS 33

Cite as 286 Neb. 29

After 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 specified 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 district 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 She

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 erroneous. 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 guaranty 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 without 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 promises 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 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. 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 She

BRAUNGER FOODS v. SEARS 35

Cite as 286 Neb. 29

case depended on whether the credit application as a whole 

was a complete and enforceable contract. Both courts concluded 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 undertaking 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 guaranty is independent of the promise of the principal obligation. 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 consider 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 language 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 statement 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 statement 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, giving the language its plain and ordinary meaning, reasonably 

applies to all terms that are agreed to which logically includes 
Nebraska Advance She

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 enforceable 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 application 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 enforceable because the terms of sale provided for in the credit application were not approved. However, this finding was inconsistent 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 district 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 representative does not alter our conclusion in this case in which 

Braunger Foods seeks to enforce the guaranty against Sears, 
Nebraska Advance She

BRAUNGER FOODS v. SEARS 37

Cite as 286 Neb. 29

who 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 signature of a Braunger Foods representative was not required to 

make the guaranty enforceable against Sears.

The language of the guaranty undermines two other arguments 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 guaranty was simply for Hungry’s to guaranty its own indebtedness. 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 guaranty’s own terms, the inclusion of the name “Hungry’s North 

Inc.” and Sears’ title as president vis-a-vis Hungry’s are to b

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 district 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 guaranty 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 further 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 She

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 determined 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.

Reversed and remanded with directi

Miller-Lerman, J., participating on bri

State of Nebraska, appellee, 

Gary L. Sikes, appel

___ N.W.2d ___

Filed June 14, 2013. No. S-12-39

1. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation 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 sentence 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 ordinary 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

Wright, Judge. Affirmed