## United States Court of Appeals **For the Eighth Circuit**

___________________________
No. 22

- 2741

___________________________ Nebraska Furniture Mart, Inc.

Plaintiff - Appellant

v.

Guardsman US LLC

Defendant - Appellee

____________ Appeal from United States District Court for the District of Nebraska - Omaha

____________
Submitted: May 9, 2023 Filed: September 7, 2023 [Unpublished]

____________ Before SHEPHERD, STRAS, and KOBES, Circuit Jud ges.

____________

PER CURIAM.

This is a straightforward breach

- of

- contract action brought by Nebraska
Furniture Mart to recover $330,000 from Guardsman US, LLC

. The case ended at-2- summary judgment , however, when the dis trict court 1 concluded that Guardsman had no obligation to pay. We affirm.

I.

The two co mpanies had a steady business relationship for over two decades.
Guard sman offered protection plans for Nebraska Furniture Mart products

. C ustomers purchased the insurance from the furniture retailer, which then forwarded
the premiums to Guardsman

. If there was a problem with an item , like damage or a stain, customers would file a claim. Simple enough.

More complicated was the contractual provision requiring Guardsman to send some of the money back to Nebraska Furniture Mart. Called the “Trade Program,”
it required a single lum p- sum payment of 5% of the previous year’s protection

- plan
sales. In return, Nebr aska Furniture Mart had to “re

- invest []” the money “ to help increase the overall close ratio performance of the program.” In plain English

, it had

to spend the money in ways that increased the sales of Guar dsman protection plans

.

The relationship ended in 2020 when Nebraska Furniture Mart allowed the

contract to expire . Several weeks later, it demanded the annual Trade Program payment, which amounted to just over $330,000. After Guardsman refused to pay , Nebraska Furniture Mart sued for breach of contract. The district court granted summary judgment to Guardsman.

II.

“Summary judgment was appropriate if the evidence, viewed in the light most
favorable to” Nebraska Furniture Mart , “shows no genuine issue of material fact exists” and Guardsman was “entitled to judgment as a matter of law.” Pr owse v.

1 The Honorable Brian C. Buescher, United States District Judge for the District of Nebraska.-3- Washington , 9 F.4th 836, 838 (8th Cir. 2021) (citation and brackets omitted) ; see also Midwest Med. Sols., LLC v. Exactech U.S., Inc. , 21 F.4th 1002, 1005 (8th Cir. 2021) (reviewing de novo)

. Delawa re law applies because the contract says so in a n enforceable choice

- of

- law clause

. See DCS Sanitation Mgmt., Inc. v. Castillo , 435 F.3d 892, 895 (8th Cir. 2005)

.

A.

The Trade Program ended with the rest of the contract

. Cox Commc’ns

, Inc.

v. T- Mobile US, Inc

. , 273 A. 3 d 752, 760 (Del. 2022) ( relying on a contract’s “unambiguous terms” (citation omitted) ). It required Guardsman to return 5% “annually ” to Nebraska Furniture Mart, but only while the contract was in effect.

The contract’s “survival clause ,” which allows “term[s]” to survive the “expiration” of the contract “where the context reasonably requires,” confirms this reading

. The “context” comes from Nebraska Furniture Mart’s commitment to “re

invest [] ” all “trade [-] program dollars” in ways that “ increase [d] the overall close ratio performance of the program .” See GMG Cap. Invs., LLC v. Athenian Venture Partners I, L.P.
, 36 A.3d 776, 779 (Del. 2012) (“ giving effect to all provisions” of
the contract (citatio n omitted) ). It could not “re- invest [] ” in a program that no longer
exist ed

. See Council of the Dorset Condo. Ap artmen ts v. Gordon , 801 A.2d 1, 7 (Del. 2002) (explaining that a contract should be “read as a whole”)

.

B.

Nebraska Furniture Mart’s response relies on a different document altogether. In March 2020, a Guardsman executive sign ed a form entitled “Funding Program ”
that refer red to a 5% “Rebate Amount” and “Anniversary Support” in the amount of $125,000

. It wa s otherwise mostly blank.

This document is a bit of a mystery. The district court thought it was “ a form used to collect information.” But as Nebraska Furniture Mart argues, it specifically-4- reference d a “ Rebate Amount” of 5% based on “ net receipts ” that would be “upheld
via the V endor Master Agreement.”

Even assuming that “Vendor Master Agreement” is a reference to the parties’

contract , the Funding Program document does not help Nebraska Furniture Mart.
Based on “ context ,” as we explain above, the “re

- invest[ment]” payments ended
once the contract did . In these circumstances, we cannot look to “extrinsic evidence ” beyond “ the four corners of the agreement .” Bathla v. 913 Mkt., LLC , 200 A.3d 754,
759

– 60 (Del. 2018) (citation omitted)

. The contract’s plain language controls

. See Exelon Generation Acquisitions, LLC v. Deere & Co. , 176 A.3d 1262, 1267 (Del. 2017) (“ If a contract is unambiguous, extrinsic evidence may not be used to interpret the intent of the parties, to vary the terms of the contract, or to create an ambiguity. ” (citation omitted)).

Nebraska Furniture Mart’s alternative argument, which is that the Funding Program document is an amendment to the parties’ contract, fares no better. The contract says the parties can amend it , but “only in a written agreement signed by both parties.” And here, only a Guardsman executive signed the Funding Program
document

, so it cannot be an amendment. See Cont ’ l Ins. Co. v. Rutledge & Co.,
Inc. , 750 A.2d 1219, 123 2 (Del. Ch. 2000) (requiring “mutual assent” for an amendment)

.

It is true, as Nebraska Furniture Mart points out , that parties can agree to amend a contract however they wish, even if the process they ultimately choose
violates the requirements of the contract they wi sh to amend

. See Pepsi

- Cola Bottling Co. of Asbury Park v. Pepsico, Inc. , 297 A.2d 28, 33 (Del. 1972). But what is missing here is any evidence that they intended to do so . Indeed, the Funding Program document never uses the word “amendment,” much less purports to alter
the mechanism for getting it done

. See id. (“ The prohibition against amendment except by written change may be waived or modified in the same way in which any other provision of a written agreement may be waived or modified

. . . .” ).-5- It makes sense that the Funding Program document did not try to do more. By its own terms, it was subject to the “Vendor Master Agreement ,” not the other way
around. In the end, the survival clause tells us what we need to know: neither the
Trade Program no r the “re

- invest[ment]” obligation outlive s the contract.

III.

We accordingly affirm the judgment of the district court.

______________________________