Brush & Co. v. W. O. Zangger & Son, 991 N.W.2d 294

Brush & Co. (landowner) and W. O. Zangger & Son (tenant) executed a 2008 Agreement and 24-year Farm Lease (2009–2034) for the “South Place” as part of a broader stock/shareholder restructuring.
The Farm Lease provided $35,000 minimum rent for the first 3 years and a profit‑share additional rent (25% of pre‑tax, pre‑bonus net profits); Section 5 required renegotiation of minimum rent every 3 years and stated that if parties failed to agree the lease would continue one year at the previously agreed minimum, “however, the minimum rental rate shall not be lower than $35,000.”
The 2008 Agreement expressly incorporated paragraph 15 of a 2005 Shareholders Agreement, which described rent as the greater of $35,000 or 25% of pre‑tax, pre‑bonus profits; an Operating and Management Agreement echoed that formula.
In 2019 the parties failed to agree on minimum rent; Brush treated $35,000 as the binding floor and offered to continue at that amount; WOZ argued no absolute floor existed and tendered a different payment.
Brush sued for breach, declaratory relief, and breach of the implied covenant of good faith. The district court denied Brush summary judgment, later entered partial summary judgment for WOZ (concluding no $35,000 floor and that rent terms were unenforceable past 2016), and after trial ruled for WOZ on the good‑faith claim. Brush appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the lease requires a perpetual $35,000 minimum rent floor	Brush: $35,000 is an absolute floor; Brush could accept $35,000 unilaterally to continue the lease	WOZ: No absolute floor; renegotiation could produce a lower number; the clause applies only to the one‑year continuation	Court: The documents are susceptible to two reasonable constructions (a floor or no floor); the term is ambiguous and thus a factual issue—partial summary judgment reversed and remanded
Whether contemporaneous and referenced documents (2008 Agreement, 2005 Shareholders Agreement, Operating Agreement) should be read together	Brush: The 2005 provisions support a $35,000 floor and are incorporated by reference	WOZ: The Farm Lease language governs and does not establish an absolute floor	Court: Documents executed together and documents incorporated by reference must be construed together; consideration of the 2005 agreement is proper, but ambiguity remains
Whether summary judgment on the lease interpretation was proper	Brush: Contract language is clear; summary judgment appropriate	WOZ: Ambiguity and factual issues preclude summary judgment	Court: Interpretation of an ambiguous contract is a factual question; summary judgment on that issue was improper; reversal and remand required

Brauer v. Hartmann, 313 Neb. 957, 987 N.W.2d 604 (review of contract interpretation and ambiguity as questions of law)
Community First Bank v. First Central Bank McCook, 310 Neb. 839, 969 N.W.2d 661 (summary judgment standards and contract construction principles)
Acklie v. Greater Omaha Packing Co., 306 Neb. 108, 944 N.W.2d 297 (contemporaneous instruments construed together)
Nebraska Depository Inst. Guar. Corp. v. Stastny, 243 Neb. 36, 497 N.W.2d 657 (consideration of surrounding circumstances when instrument ambiguous)
Nowak v. Burke Energy Corp., 227 Neb. 463, 418 N.W.2d 236 (contemporaneous documents treated as one instrument)
TransCanada Keystone Pipeline v. Tanderup, 305 Neb. 493, 941 N.W.2d 145 (principles governing remand and restoring parties to pre‑judgment posture)