Builders Supply Co. v. Czerwinski

622 	275 Nebraska reports
conclude that this decision is not the law of the case because it
is contrary to our subsequent decision in Giboo.
We therefore disapprove the review panel’s first decision.
this disapproval, however, does not affect Money’s award of
benefits. after the trial judge again determined in the subsequent
proceeding that Money was entitled to benefits for total disabil-
ity, the review panel affirmed the award on different grounds.
because we conclude that the trial judge was not clearly wrong
in finding that Money was totally and permanently disabled in
the table rock labor market under the odd-lot doctrine of dis-
ability, we affirm.
A ffirmed .
B uilders supply C o ., inC., AppellAnt , v .
BArBArA J. C zerwinski , Appellee .
748 N.W.2d 645
Filed May 9, 2008. 	No. s-06-1138.
1. Summary Judgment. summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
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. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. ____: ____. When cross-motions for summary judgment have been ruled upon
by the district court, the appellate court may determine the controversy that is
the subject of those motions or may make an order specifying the facts that
appear without substantial controversy and direct such further proceedings as it
deems just.
4. Summary Judgment. the primary purpose of a summary judgment procedure
is to pierce the allegations made in the pleadings and show conclusively that the
controlling facts are other than as pled and thus resolve, without the expense and
delay of trial, those cases where there exists no genuine issue as to any material
fact or as to the ultimate inferences to be drawn therefrom, and where the moving
party is entitled to judgment as a matter of law.
5. Summary Judgment: Proof. a party moving for summary judgment must make
a prima facie case by producing enough evidence to demonstrate that the movant
is entitled to judgment if the evidence were uncontroverted at trial.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

6. ____: ____. once the moving party makes a prima facie case, the burden to
produce evidence showing the existence of a material issue of fact that prevents
judgment as a matter of law shifts to the party opposing the motion.
7. Contracts: Guaranty: Words and Phrases. a guaranty is a contract and is a col-
lateral undertaking by one or more persons to answer for the payment of a debt or
the performance of some contract or duty in case of the default of another person
who is liable for such payment or performance in the first instance.
8. Contracts: Guaranty. a guaranty is interpreted using the same general rules as
are used for other contracts.
9. Contracts: Judgments: Appeal and Error. the meaning of a contract is a ques-
tion 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.
10. Contracts: Words and Phrases. ambiguity exists in an instrument when a word,
phrase, or provision in the instrument has, or is susceptible of, at least two reason-
able but conflicting interpretations or meanings.
11. Contracts: Guaranty. any ambiguity in a guaranty should arise in the first
instance from the guaranty itself, and neither a court nor the parties will be permit-
ted to create an ambiguity when none exists.
12. ____: ____. a guaranty is an independent contract that imposes responsibilities
different from those imposed in an agreement to which it is collateral.
13. Contracts: Guaranty: Debtors and Creditors: Notice: Words and Phrases. an
absolute guaranty is a contract by which the guarantor has promised that if the
debtor does not perform his or her obligation or obligations, the guarantor will
perform some act for the benefit of the creditor. an absolute guaranty of payment
is enforceable at any time without demand and notice of default.
14. Contracts: Guaranty: Subrogation: Waiver: Estoppel. the general rule is that
a surety or guarantor is entitled to be subrogated to the benefit of all the security
and means of payment under the creditor’s control and, therefore, in the absence
of assent, waiver, or estoppel, the guarantor is generally released by an act of the
creditor which deprives the guarantor of such right.
15. Contracts: Guaranty: Waiver. the defense that a guarantor is discharged by a
creditor’s impairment of collateral can be waived by an express provision in the
guaranty agreement or by the guarantor’s conduct.
appeal from the District Court for Douglas County: G erAld
e. morAn, Judge. reversed and remanded with directions.
steven J. riekes, of Marks, Clare & richards, L.L.C., for
appellant.
stephen H. Nelsen, James M. bausch, and tessa p. Hermanson,
of Cline, Williams, Wright, Johnson & oldfather, L.L.p., for
appellee.
H eAviCAn , 	C.J., 	C onnolly , 	G errArd , 	stepHAn , 	and
miller -lermAn , JJ.
buILDers suppLy Co. v. CzerWINskI 	623
Cite as 275 Neb. 622

624 	275 Nebraska reports
miller -lermAn , J.
Nature oF Case
appellant builders supply Co., Inc. (builders), filed a com-
plaint in the district court for Douglas County in which it alleged
that appellee barbara J. Czerwinski owed it $1,448,607.04 plus
prejudgment and postjudgment interest and costs under a guar-
anty agreement (Guarantee) executed by Czerwinski and her
late husband, John C. Czerwinski, Jr. (Jack). the Guarantee
secured sums owed to builders by benchmark Homes, Inc.
(benchmark), under a separate credit agreement (agreement).
Czerwinski denied certain of builders’ allegations. Czerwinski’s
answer effectively gave notice of two defenses. First, Czerwinski
claimed that as a result of builders’ release of certain collat-
eral securing the Guarantee, her liability under the Guarantee
had been completely discharged. second, Czerwinski claimed
that, if liable, her liability under the Guarantee was limited
to $525,000.
builders and Czerwinski filed cross-motions for summary
judgment. Following an evidentiary hearing, the district court
entered a judgment order in which it sustained Czerwinski’s
motion, overruled builders’ motion, and dismissed the case.
builders appeals.
We conclude that builders established its entitlement to judg-
ment and that Czerwinski did not establish her defenses and
was not entitled to summary judgment. We therefore reverse
the district court’s order that sustained Czerwinski’s motion
for summary judgment and overruled builders’ motion for
summary judgment and remand the cause with directions that
judgment be entered in favor of builders in the amount of
$1,427,714.97 plus prejudgment and postjudgment interest and
costs, and we further direct that proceedings be conducted on
remand to determine interest and costs.
stateMeNt oF FaCts
Jack and Czerwinski were officers in benchmark, a company
that was in the business of constructing homes. on December
13, 1989, builders, a building supply company, entered into an
agreement with benchmark by which builders agreed to con-
tinue to sell building supplies to benchmark on an open account.

Czerwinski is not a signatory to the agreement. the agreement
acknowledged an outstanding indebtedness of benchmark to
builders and set forth the manner in which that indebtedness
would be paid. the agreement also provided for future indebt-
edness and stated, inter alia, that the amount of credit to be
extended to benchmark would be $525,000.
also on December 13, 1989, Jack and Czerwinski executed
a separate Guarantee in favor of builders. the purpose of the
Guarantee was to provide for the repayment to builders of
amounts advanced by builders to benchmark in the event of
benchmark’s default. the Guarantee provided, in pertinent part,
as follows:
Czerwinski 	[and 	Jack] 	absolutely 	and 	uncondition-
ally guarantee . . . prompt repayment when due of all
amounts advanced in the past . . . and of all amounts
advanced in the future by builders to benchmark for use
in benchmark’s conduct of its business. If benchmark
defaults in the payment of such indebtedness, Czerwinski
[and Jack] will pay to builders . . . the amount then due.
the Guarantee did not include or refer to the $525,000 credit
figure contained in the agreement. the Guarantee did not
restrict builders’ ability to release the collateral and did not
require that notice be given to the guarantors of the release of
collateral. the Guarantee permitted builders to release any one
of the guarantors and provided that the liability of Czerwinski
and Jack under the Guarantee was joint and several.
the Guarantee was secured in part by deeds of trust on
certain properties, including an office building owned by Jack.
although she was not listed as an owner of the office build-
ing, Czerwinski signed the office building deed of trust. the
deeds of trust stated generally that they were given to secure
benchmark’s account indebtedness to builders.
sometime prior to March 26, 1991, benchmark satisfied the
original indebtedness set forth in the agreement. on March
26, at Jack’s request, builders released its deed of trust on the
office building. subsequent thereto, Jack and Czerwinski exe-
cuted deeds of trust on the office building in favor of creditors
other than builders. In this regard, the record contains evidence
of deeds of trust dated between 1999 and 2005, which by their
buILDers suppLy Co. v. CzerWINskI 	625
Cite as 275 Neb. 622

626 	275 Nebraska reports
terms were secured by the office building. Czerwinski admit-
ted that she signed certain of these deeds of trust. specifically,
the evidence shows that in January 1999, Czerwinski signed a
deed of trust in the amount of $100,000 in favor of Nebraska
state bank granting such entity a lien on the office building.
the evidence further shows that in May 2000, Czerwinski
signed a deed of trust in the amount of $600,000 in favor of
transnation title Insurance Company granting such entity a
lien on the office building. the evidence indicates that this
$600,000 encumbrance was present on the office building when
it was sold in 2006.
beginning in 2002, builders began extending large amounts
of credit to benchmark. specifically, the evidence shows that
from November 1, 2005, through March 9, 2006, builders
extended credit on an open account basis to benchmark such
that after credits for returned materials and supplies, benchmark
owed a total of $1,427,714.97 as of June 16, 2006.
Jack died on February 21, 2006. In approximately april
2006, benchmark filed bankruptcy. on July 20, the office build-
ing was sold, resulting in net sale proceeds of approximately
$849,000. the record generally indicates that the sale proceeds,
net of the expenses of sale and real estate taxes, were paid to
satisfy various lienholders on the office building whose encum-
brances had been filed subsequent to builders’ release of its
deed of trust in 1991.
on March 13, 2006, builders filed a complaint against
Czerwinski in which it alleged that it had advanced certain sums
to benchmark and that benchmark was in default in the repay-
ment of its account. builders further alleged that Czerwinski
had entered into the Guarantee to secure the repayment of
those funds and that as a result, Czerwinski, as guarantor, owed
builders the principal sum of $1,448,607.04 plus prejudgment
and postjudgment interest and costs.
on June 2, 2006, Czerwinski filed an answer, which she
amended on august 11. In her amended answer, Czerwinski
denied allegations in the complaint that she was indebted to
builders 	under 	the 	Guarantee. 	Czerwinski’s 	answer 	effec-
tively raised certain defenses. Initially, Czerwinski alleged that
she should be discharged from any liability on the Guarantee

because builders had released its lien on the office building,
thereby impairing the collateral used to secure the Guarantee.
she also alleged that the Guarantee was subject to a credit
limit of $525,000 found in the separate agreement and that as
a result, the maximum sum for which she could be liable as a
guarantor was $525,000.
on July 6, 2006, builders filed a motion for summary judg-
ment. on september 18, Czerwinski filed a motion for sum-
mary judgment based on the defenses raised in her answer. the
cross-motions for summary judgment came on for hearing on
september 29. In support of its motion, builders introduced
the Guarantee, as well as several affidavits and documen-
tary evidence, to establish that benchmark owed it a total
of $1,427,714.97, for which Czerwinski was liable under the
Guarantee. builders also introduced evidence that showed that
subsequent to its release of its lien on the office building, sev-
eral deeds of trust on the office building in favor of creditors
other than builders had been executed and that Czerwinski had
signed certain of these deeds of trust. In support of her motion,
Czerwinski introduced into evidence several affidavits, two
of which were her own. In both of her affidavits, Czerwinski
stated, inter alia, that “[a]t no time did builders . . . advise me
that [it] had agreed with [Jack] to release the liens on the [office
building] given as collateral for the Guarantee that is the subject
of this proceeding.”
In a judgment order filed october 10, 2006, the district court
sustained Czerwinski’s motion, overruled builders’ motion, and
dismissed builders’ complaint with prejudice. In its order, the
district court concluded that the agreement, the Guarantee,
and the deeds of trust should be construed together and further
concluded that the documents so construed demonstrated that
Czerwinski “was never obligated [to builders] for more than
$525,000.00 under the Guarantee.” the district court found
that the deed of trust on the office building had been released
at Jack’s request and that Czerwinski “was never advised of
this action by [builders].” However, the district court did not
make a finding that Czerwinski was unaware of the release and
made no finding with respect to Czerwinski’s participation in
the subsequent encumbering of the office building. the district
buILDers suppLy Co. v. CzerWINskI 	627
Cite as 275 Neb. 622

628 	275 Nebraska reports
court concluded that Czerwinski, as guarantor, was entitled to
be subrogated to the collateral given to secure benchmark’s
indebtedness to builders and that “[b]y releasing the collat-
eral, [builders] deprived [Czerwinski] of her right of subro-
gation, and [Czerwinski] is released from any liability under
the Guarantee as a matter of law.” as noted, the district court
sustained Czerwinski’s motion for summary judgment, over-
ruled builders’ motion for summary judgment, and dismissed
builders’ complaint with prejudice.
builders appeals.
assIGNMeNts oF error
on appeal, builders assigns three errors that can be restated as
claiming that the district court erred in sustaining Czerwinski’s
motion for summary judgment, overruling builders’ motion
for summary judgment, and dismissing builders’ complaint
with prejudice.
staNDarDs oF reVIeW
[1,2] summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as
to any material fact 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. Lynch v. State Farm Mut. Auto.
Ins. Co., ante p. 136, 745 N.W.2d 291 (2008). In reviewing a
summary judgment, an appellate court views the evidence in a
light most favorable to the party against whom the judgment is
granted and gives such party the benefit of all reasonable infer-
ences deducible from the evidence. Id.
aNaLysIs
B uilders estABlisHed its entitlement to J udGment
Initially, we note that the instant case was before the district
court on cross-motions for summary judgment. builders offered
the Guarantee and other evidence, and Czerwinski offered
evidence designed to establish defenses that would relieve or
reduce her obligations under the Guarantee. the district court
granted Czerwinski’s motion for summary judgment, denied
builders’ motion for summary judgment, and dismissed the

complaint. as explained below, we conclude that builders
established its entitlement to judgment and that Czerwinski did
not establish her defenses. We reverse the district court’s order
and direct that judgment be entered in favor of builders in the
amount of $1,427,714.97 plus prejudgment and postjudgment
interest and costs, and we further direct that proceedings be
conducted on remand to determine interest and costs.
[3,4] When cross-motions for summary judgment have been
ruled upon by the district court, the appellate court may deter-
mine the controversy that is the subject of those motions or may
make an order specifying the facts that appear without substan-
tial controversy and direct such further proceedings as it deems
just. see State Farm Mut. Ins. Co. v. Cheeper’s Rent-a-Car,
259 Neb. 1003, 614 N.W.2d 302 (2000). this court has stated
that the primary purpose of a summary judgment procedure is
to pierce the allegations made in the pleadings and show con-
clusively that the controlling facts are other than as pled and
thus resolve, without the expense and delay of trial, those cases
where there exists no genuine issue as to any material fact or
as to the ultimate inferences to be drawn therefrom, and where
the moving party is entitled to judgment as a matter of law. see
Andres v. McNeil Co., 270 Neb. 733, 707 N.W.2d 777 (2005).
[5,6] a party moving for summary judgment must make
a prima facie case by producing enough evidence to demon-
strate that the movant is entitled to judgment if the evidence
were uncontroverted at trial. Pogge v. American Fam. Mut. Ins.
Co., 272 Neb. 554, 723 N.W.2d 334 (2006). once the moving
party makes a prima facie case, the burden to produce evidence
showing the existence of a material issue of fact that prevents
judgment as a matter of law shifts to the party opposing the
motion. Id.
the record in the instant case reflects that builders offered into
evidence copies of the Guarantee and other documents, includ-
ing evidence of the amount of the debt owed by benchmark to
builders. by its terms, the Guarantee was absolute and uncondi-
tional. It did not limit the amount guaranteed and did not expire
after a period of time. It did not contain restrictions relating
to the release of the collateral and did not require notice of
release. as alleged in its complaint, builders demonstrated its
buILDers suppLy Co. v. CzerWINskI 	629
Cite as 275 Neb. 622

630 	275 Nebraska reports
entitlement to judgment based on the Guarantee and the amount
owed by Czerwinski to which it was entitled. the burden then
shifted to Czerwinski to show that builders was not entitled to
judgment as a matter of law. Czerwinski offered evidence by
which she sought to establish defenses such that her obligation
under the Guarantee was not enforceable or, if enforceable, was
for an amount less than the debt of $1,427,714.97 that had been
established by the evidence. although the district court found
merit in the defenses, as elaborated below, we conclude as a
matter of law that Czerwinski failed to establish her defenses
and that therefore, the district court erred in entering judgment
in favor of Czerwinski and against builders and in dismissing
builders’ complaint. Given the ultimate inferences from the
evidence, builders was entitled to judgment.
tHe distriCt C ourt erred in determininG
C zerwinski wAs never liABle for more
tHAn $525,000 under tHe G uArAntee
Integral to our resolution of this appeal is a determination
of the amount of debt to which Czerwinski was exposed under
the Guarantee. For completeness, we note that given the pos-
ture and evidence in this case, we need not and do not com-
ment on the potential contribution, if any, to which Czerwinski
may be entitled relative to her indebtedness to builders. on
appeal, builders claims that the district court erred when it
determined that Czerwinski “was never obligated for more than
$525,000.00 under the Guarantee.” We agree with builders that
the district court erred in this determination.
builders notes that the Guarantee provides as follows:
Czerwinski [and Jack] absolutely and unconditionally
guarantee . . . prompt repayment when due of all amounts
advanced in the past . . . and of all amounts advanced in the
future by builders to benchmark for use in benchmark’s
conduct of its business. If benchmark defaults in the pay-
ment of such indebtedness, Czerwinski [and Jack] will pay
to builders . . . the amount then due.
builders claims that neither this nor any other language in the
Guarantee, nor, to the extent applicable, any other document,
limits Czerwinski’s liability under the Guarantee and that as a

result, Czerwinski is liable to builders for all sums advanced by
builders to benchmark under the agreement.
Czerwinski claims that notwithstanding the “absolute[] and
unconditional[]” language contained in the Guarantee, she does
not owe money to builders in general and that in particu-
lar, she does not owe the full amount that builders advanced
to benchmark. Czerwinski asserts that the agreement, the
Guarantee, and the deeds of trust were made as part of one trans-
action and should be construed together for purposes of interpre-
tation. Czerwinski relies on cases similar to Gary’s Implement
v. Bridgeport Tractor Parts, 270 Neb. 286, 702 N.W.2d 355
(2005), in which we stated that when documents are related and
part of one transaction, their substance will be read together.
Construing the documents together, Czerwinski asserts and the
district court agreed that the Guarantee is subject to the language
in the agreement that stated that “[t]he maximum amount of
credit to be extended to benchmark shall be . . . $525,000.00.”
Czerwinski claims that the district court was correct when it
determined that $525,000 was the maximum sum for which she
was ever exposed as guarantor under the Guarantee.
We conclude as a matter of law that the Guarantee is unam-
biguous and that its meaning is to be determined by the lan-
guage of the Guarantee itself. the Guarantee contains no limits
on Czerwinski’s liability to builders, and the district court erred
as a matter of law in limiting Czerwinski’s potential liability
under the Guarantee at $525,000.
[7-9] We begin our analysis by noting the rules regarding
the interpretation of guaranty agreements. a guaranty is a con-
tract and is a collateral undertaking by one or more persons to
answer for the payment of a debt or the performance of some
contract or duty in case of the default of another person who is
liable for such payment or performance in the first instance. see
Rodehorst v. Gartner, 266 Neb. 842, 669 N.W.2d 679 (2003). a
guaranty is interpreted using the same general rules as are used
for other contracts. State ex rel. Wagner v. Amwest Surety Ins.
Co., 274 Neb. 110, 738 N.W.2d 805 (2007). We have stated that
“Nebraska adheres to the rule of strict construction of guaranty
contracts. . . . ‘When the meaning of the contract [guaranty] is
ascertained, or its terms are clearly defined, the liability of the
buILDers suppLy Co. v. CzerWINskI 	631
Cite as 275 Neb. 622

632 	275 Nebraska reports
guarantor is controlled absolutely by such meaning and limited
to the precise terms.’” Federal Deposit Ins. Corp. v. Heyne, 227
Neb. 291, 293, 417 N.W.2d 162, 163 (1987) (quoting Hunter
v. Huffman, 108 Neb. 729, 189 N.W. 166 (1922) (syllabus of
court)). the meaning of a contract is a question of law, in con-
nection with which an appellate court has an obligation to reach
its conclusions independently of the determinations made by
the court below. Hogelin v. City of Columbus, 274 Neb. 453,
741 N.W.2d 617 (2007).
Czerwinski urges us to construe the Guarantee with the
agreement and thereby limit the terms of the Guarantee. When,
as here, the Guarantee is unambiguous, we do not vary its terms
by construing it with another instrument. In this regard, we
have stated:
the statement that contemporaneous instruments may be
treated and interpreted as one means only that this will
be done when it will effectuate the intention and if the
provisions of the two instruments if put together will
not be incompatible. the court may not do violence to a
complete, unambiguous contract by consolidating it with
another writing if the effect of doing so would be to avoid
an essential part of the contract. If contracts or writings
are in effect independent they should not be construed
together even though the same parties and the same sub-
ject matter may be concerned.
Gerdes v. Omaha Home for Boys, 166 Neb. 574, 585-86, 89
N.W.2d 849, 856 (1958).
[10,11] ambiguity exists in an instrument when a word,
phrase, or provision in the instrument has, or is susceptible
of, at least two reasonable but conflicting interpretations or
meanings. Plambeck v. Union Pacific RR. Co., 244 Neb. 780,
509 N.W.2d 17 (1993). see, also, Kluver v. Deaver, 271 Neb.
595, 714 N.W.2d 1 (2006). any ambiguity in a guaranty should
arise in the first instance from the guaranty itself, and neither
a court nor the parties will be permitted to create an ambiguity
when none exists. see Knox v. Cook, 233 Neb. 387, 446 N.W.2d
1 (1989) (stating that fact that parties to guaranty suggest
opposing interpretations to document does not by itself compel
conclusion that guaranty is ambiguous).

the language of the Guarantee is unambiguous. Czerwinski,
as a coguarantor, “absolutely and unconditionally guarantee[d]
prompt repayment when due of all amounts advanced.” No
other language in the Guarantee amounts to a meaningful limi-
tation on this provision of the Guarantee. No language in the
Guarantee limits Czerwinski’s liability, and Czerwinski did not
contract with builders in the Guarantee to a limit on builders’
credit to benchmark.
[12] We recognize that the agreement contains language rela-
tive to the $525,000 upon which Czerwinski relies. However, a
guaranty is an independent contract that imposes responsibili-
ties different from those imposed in an agreement to which it is
collateral. see National Bank of Commerce Trust & Sav. Assn.
v. Katleman, 201 Neb. 165, 266 N.W.2d 736 (1978). It is the
guaranty agreement that contains the express condition on the
guarantor’s liability and that defines the obligations and rights
of both guarantor and guarantee. Id. the language relied upon
by Czerwinski in the agreement relative to the $525,000 merely
described builders’ obligation to extend credit to benchmark to
a specific amount.
other courts have observed, and we agree, that in the absence
of a limit in a guaranty, the presence of a credit limit in a sepa-
rate credit agreement does not create a limit in the correspond-
ing guaranty. see, e.g., Fertig v. Bartles, 78 F. 866 (D.N.J. 1897)
(stating that clause in separate contract limiting credit amount
to be extended to borrower did not restrict guarantor’s liability
because clause was not inserted for guarantor’s benefit, and
there was no similar clause in contract with guarantor limiting
liability); Clark v. Walker-Kurth Lumber Co., 689 s.W.2d 275,
279 (tex. app. 1985) (stating that when “the contract between
the creditor and principal debtor limits the obligation of the
former to extend credit to the latter up to a specified amount,
such limitation does not condition the contract by which the
guarantor agrees to guaranty the payment of all credit extended
to the debtor”); Bay Oil Co. v. Vilas, 237 Wis. 603, 605, 296
N.W. 595, 597 (1941) (stating that credit limit in contract
between creditor and principal “was not for the benefit of the
. . . guarantor but for that of the creditor, and it does not modify
or condition the separate contract of guaranty which contains no
buILDers suppLy Co. v. CzerWINskI 	633
Cite as 275 Neb. 622

634 	275 Nebraska reports
specific limitation or condition”). the fact that the agreement
in this case refers to $525,000 does not restrict the liability of
the guarantors to that amount in view of the breadth of the lan-
guage of the Guarantee itself. see Missouri Farmers Ass’n, Inc.
v. Coleman, 676 s.W.2d 855 (Mo. app. 1984). Furthermore,
the liability of the guarantor is not discharged by the extension
of more credit than the amount specified in the separate credit
agreement. Clark v. Walker-Kurth Lumber Co., supra.
the meaning of a contract is a question of law, in connec-
tion with which an appellate court has an obligation to reach
its conclusions independently of the determination made by the
court below. Hogelin v. City of Columbus, 274 Neb. 453, 741
N.W.2d 617 (2007). Czerwinski executed a Guarantee in which,
as a matter of law, we conclude that she unambiguously guar-
anteed the payment of “all amounts advanced” by builders to
benchmark. We conclude that the district court erred as a matter
of law when it determined by reference to the agreement that
Czerwinski was never liable for more than $525,000 under the
Guarantee. We reverse that portion of the district court’s order.
tHe distriCt C ourt erred As A mAtter of lAw wHen it
C onCluded tHAt C zerwinski wAs releAsed from
liABility under tHe G uArAntee And sustAined
C zerwinski ’ s motion for summAry J udGment
Having concluded that builders established its entitlement to
judgment and that the district court erred when it determined
that any liability Czerwinski faced under the Guarantee was
limited to $525,000, we next consider the correctness of the dis-
trict court’s ruling accepting Czerwinski’s defense and granting
summary judgment in favor of Czerwinski based on the court’s
determination that Czerwinski was released from liability under
the Guarantee as a result of builders’ release of its deed of trust
on the office building.
on appeal, builders claims that the district court erred when it
concluded that “[b]y releasing the collateral, [builders] deprived
[Czerwinski] of her right of subrogation, and [Czerwinski was]
released from any liability under the Guarantee as a matter of
law.” We agree with builders that this conclusion was error. the
ultimate inference from the facts established builders’ allegations

and failed to establish Czerwinski’s impairment of collateral
defense. as explained below, although builders released the
deed of trust on the office building as collateral in 1991, the
release did not violate an obligation under the Guarantee, and
based on the evidence, Czerwinski is estopped from succeeding
on a claim of impairment of collateral because, by Czerwinski’s
use of the office building as collateral to secure other indebted-
ness starting in 1999, Czerwinski was not deprived by builders
of preventing the loss protected by the Guarantee. see National
Bank of Commerce Trust & Sav. Assn. v. Katleman, 201 Neb.
165, 266 N.W.2d 736 (1978). accordingly, giving builders as
the party against whom Czerwinski’s summary judgment was
entered the benefit of all reasonable inferences deducible from
the evidence, see Lynch v. State Farm Mut. Auto. Ins. Co., ante
p. 136, 745 N.W.2d 291 (2008), we conclude the district court
erred as a matter of law when it granted Czerwinski’s motion
for summary judgment, and we reverse that portion of the dis-
trict court’s order.
[13] as noted, under the terms of the Guarantee, Czerwinski
“absolutely and unconditionally guarantee[d]” all sums advanced
by builders to benchmark under the agreement. pursuant to
this language, Czerwinski’s obligation under the Guarantee
was absolute.
an absolute guaranty is a contract by which the guarantor
has promised that if the debtor does not perform his obli-
gation or obligations, the guarantor will perform some act
for the benefit of the creditor. . . . an absolute guaranty of
payment is enforceable at any time without demand and
notice of default.
Production Credit Assn. of the Midlands v. Schmer, 233 Neb.
749, 755, 448 N.W.2d 123, 128 (1989). see Home Savings
Bank v. Shallenberger, 95 Neb. 593, 600, 146 N.W. 993, 996
(1914) (stating that under absolute guaranty, “‘guarantor makes
an absolute promise that a particular thing shall be done, and
thereby assumes an active, absolute duty to see that it is done,
and must, at his peril, perform the promise’”). We further note
that the Guarantee does not prohibit builders from releasing the
collateral, and because the language of the Guarantee does not
require that the guarantors be notified by builders of any such
buILDers suppLy Co. v. CzerWINskI 	635
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636 	275 Nebraska reports
release, we do not read a notice requirement into the Guarantee.
see Production Credit Assn. of the Midlands v. Schmer, 233
Neb. at 755, 448 N.W.2d at 128 (stating that if “[t]here is no
provision in the guaranty requiring [the creditor] to give notice
to [the guarantor] of its transactions [involving the guaranteed
debt] [s]uch a notice requirement cannot be read into the con-
tract”). Finally, we note that the Guarantee does permit the
release of any one of the guarantors.
Czerwinski acknowledges both the terms of the Guarantee
and the absolute nature of those terms. However, Czerwinski
claims as a defense that as a guarantor, she had a right to be
subrogated to the collateral given to secure the Guarantee and
that by virtue of builders’ release of its deed of trust on the
office building, her right to be subrogated to that collateral for
the satisfaction of the guaranteed debt was impaired. In argu-
ment, she claims that she was unaware of the release of the
deed of trust on the office building, although her affidavit in
evidence states merely that builders did not notify her of the
release. Czerwinski claims that the release of the debt on the
office building impaired her resort to the office building to
satisfy benchmark’s debt to builders and that as a result of
such release, she should be discharged from all liability under
the Guarantee.
For the sake of completeness, we note that Czerwinski’s
arguments assume that if she were successful in establishing
her discharge defense, she would be discharged from all, not
merely some, liability under the Guarantee. because the record
does not support the defense, we need not resolve the extent to
which a successful defense could release Czerwinski from her
obligations under the Guarantee. National Bank of Commerce
Trust & Sav. Assn. v. Katleman, 201 Neb. 165, 174, 266 N.W.2d
736, 742 (1978) (stating generally that “a guarantor is not
liable on his own contract where the creditor has violated his
own obligations and deprived the guarantor of the means of
preventing the loss protected by the guaranty”). but cf. First
State Bank v. Peterson, 205 Neb. 814, 816-17, 290 N.W.2d 634,
635 (1980) (stating that “[i]t is a general rule of suretyship that
a surety is discharged only pro tanto by any wrongful loss or
release of security”).

[14] Nebraska jurisprudence supports the general legal propo-
sition to which Czerwinski alludes that despite the absolute
nature of a guaranty, a creditor can act or fail to act in such
a manner as to impair collateral securing a guaranty and that
such impairment of collateral, in the absence of certain other
factors, can be a defense to the guaranty’s enforceability. this
court has noted that regardless of whether a guaranty is absolute
or conditional,
[t]he general rule is that a surety or guarantor is entitled to
be subrogated to the benefit of all the security and means
of payment under the creditor’s control and, therefore, in
the absence of assent, waiver, or estoppel, he is generally
released by an act of the creditor which deprives him of
such right.
Custom Leasing, Inc. v. Carlson Stapler & Shippers Supply,
Inc., 195 Neb. 292, 298, 237 N.W.2d 645, 649 (1976) (empha-
sis supplied). see Myers v. Bank of Niobrara, 215 Neb. 29, 336
N.W.2d 608 (1983) (citing Custom Leasing, Inc. v. Carlson
Stapler & Shippers Supply, Inc., supra, and concluding under
the facts that guarantors waived right to object to creditor’s
release of collateral and that therefore, creditor’s release of col-
lateral did not discharge guarantors).
[15] as noted above, this court has recognized that the
defense that a guarantor is discharged by a creditor’s impair-
ment of collateral is not available if the guarantor waived the
defense, assented to the creditor’s acts, or is otherwise estopped
from succeeding on the defense. see Custom Leasing, Inc. v.
Carlson Stapler & Shippers Supply, Inc., supra. the defense can
be waived by an express provision in the guaranty agreement
or by the guarantor’s conduct. see Myers v. Bank of Niobrara,
supra (enforcing express waiver provision in guaranty agree-
ment). see Minnesota Fed. S. & L. v. Central Enterprises, 311
Minn. 46, 247 N.W.2d 46 (1976) (discussing express waiver in
guaranty and waiver by guarantor’s conduct).
In considering Czerwinski’s defense, we understand that
builders does not claim that Czerwinski assented to the initial
release of the deed of trust on the office building that ulti-
mately led to the loss of security. Further, we do not believe
that builders is claiming that Czerwinski waived her defense
buILDers suppLy Co. v. CzerWINskI 	637
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638 	275 Nebraska reports
by conduct. However, builders does claim that the discharge
defense is unavailable because Czerwinski expressly waived
it in the Guarantee or that in the alternative, by virtue of her
subsequent acts, Czerwinski is estopped from succeeding on the
defense. builders thus argues that notwithstanding the release
of the deed of trust on the office building, Czerwinski is never-
theless liable under the Guarantee and that the district court
erred in determining Czerwinski’s liability under the Guarantee
had been discharged.
With respect to waiver, builders relies on §§ 3 and 8 of the
Guarantee in support of its argument that Czerwinski expressly
waived the impairment collateral defense. section 3 of the
Guarantee on which builders relies provides in part that “builders
may alter, compromise, accelerate, extend or change the time or
manner of payment of any indebtedness, increase or reduce
the rate of interest thereon, or add or release any one or more
other guarantors.” although it is of interest that this language
expressly permits builders the latitude to release a coguarantor,
nothing in this language either expressly permits or precludes
builders from the release of collateral securing the Guaranty,
and we do not find § 3 dispositive of our analysis.
section 8 of the Guarantee on which builders further relies
provides, inter alia, as follows:
Czerwinski waives any and all defenses, claims, and
discharges of builders, or any other obligor, pertaining to
the indebtedness guaranteed herein, except the defense of
discharge by payment in full. Without limiting the gen-
erality of the foregoing, the undersigned will not assert,
plead, or enforce against builders any defense of waiver,
release, discharge in bankruptcy, statute of limitations, res
judicata, statute of frauds, anti-deficiency statute, fraud,
incapacity, minority, usury, illegality, or unenforceability
which may be available to benchmark or any other person
liable in respect of any indebtedness or any setoff avail-
able against builders to benchmark or any such other per-
son, whether or not on account of a related transaction.
examining the language of § 8, we again disagree with
builders’ assertion that by virtue of the provisions in the
Guarantee, Czerwinski expressly waived her discharge defense.

according to the language of § 8, Czerwinski waived any
defenses that Builders might possess, not defenses that she
or even benchmark might possess. While the reference to
“builders” may be inadvertent, we do not rely on § 8 for the
proposition urged by builders.
With respect to estoppel, builders claims that by certain of
her acts, Czerwinski is estopped from succeeding on her dis-
charge defense and is therefore liable under the Guarantee. In
this regard, builders notes that subsequent to its release of its
lien on the office building in 1991, Czerwinski signed deeds
of trust starting in 1999 encumbering the office building, and
that it is these subsequent encumbrances that directly led to
the loss of the office building as security. builders claims that
the liens Czerwinski placed on the office building demonstrate
that Czerwinski was aware the office building was no longer
encumbered in favor of builders and was available to serve as
collateral elsewhere and that Czerwinski’s own acts deprived her
of “the means of preventing the loss protected by the guaranty.”
see National Bank of Commerce Trust & Sav. Assn. v. Katleman,
201 Neb. 165, 174, 266 N.W.2d 736, 742 (1978).
In support of its estoppel argument, builders relies upon evi-
dence in the summary judgment record, including Czerwinski’s
responses to builders’ requests for admissions. In her responses,
Czerwinski admitted that in 1999, she signed a deed of trust on
the office building in favor of Nebraska state bank in the amount
of $100,000. Czerwinski also admitted that in 2000, she signed
a deed of trust in favor of transnation title Insurance Co. in the
amount of $600,000. In the title insurance on the office building
effective June 22, 2006, a defect is noted as to this $600,000
indicating that this deed of trust is in default. builders argues
that Czerwinski’s participation in placing subsequent liens on
the office building as early as 1999 demonstrates Czerwinski’s
early knowledge of the release and that Czerwinski’s acts,
rather than those of builders, impaired the collateral. builders
contends that the $600,000 encumbrance placed on the office
building in 2000 to which Czerwinski consented suggests not
only that Czerwinski knew of the availability of the office
building to secure debt, but also that this $600,000 was in fact a
significant encumbrance when the office building sold in 2006.
buILDers suppLy Co. v. CzerWINskI 	639
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640 	275 Nebraska reports
builders therefore claims that Czerwinski should be estopped
from succeeding on her claim that she should be discharged
from her obligation under the Guarantee by virtue of builders’
release of its deed of trust in 1991.
In response, Czerwinski claims in her brief that she was
unaware of builders’ release of the deed of trust on the office
building. In support of her argument, Czerwinski appears to rely
on statements in her affidavits in which she stated that “[a]t no
time did builders . . . advise me that [it] had agreed with [Jack]
to release the liens on the [office building] given as collateral
for the Guarantee that is the subject of this proceeding.”
Czerwinski’s response to builders’ estoppel argument is
incomplete and unpersuasive, and the inferences from the evi-
dence do not support her defense. as we have noted, the
Guarantee did not restrict builders’ ability to release its col-
lateral and did not require that builders give notice to the guar-
antors if it did release the collateral. In the absence of such a
provision, builders was not required to give Czerwinski notice
of its release of the deed of trust on the office building. see
Production Credit Assn. of the Midlands v. Schmer, 233 Neb.
749, 448 N.W.2d 123 (1989). Furthermore, the evidence in her
affidavits that builders failed to “advise” her of the release of
its collateral does not necessarily support her claim that she was
unaware of the fact that the deed of trust on the office building
had been released. to the contrary, the record indicates that she
signed deeds of trust on the office building in 1999 and 2000
for $100,000 and $600,000 respectively, suggesting that she
was aware of the availability of the office building to serve as
collateral in a substantial amount. the $600,000 encumbrance
remained into 2006, the inference from which is that through
her actions, Czerwinski impaired the office building collateral
rather than builders.
this case was before the district court on cross-motions
for summary judgment. once builders established that it was
entitled to judgment as a matter of law, the burden shifted to
Czerwinski to establish her entitlement to summary judgment
which was based on her defense of impairment of collateral.
Pogge v. American Fam. Mut. Ins. Co., 272 Neb. 554, 723
N.W.2d 334 (2006). upon appeal, when reviewing a summary

judgment, this court views the evidence in a light most favor-
able to the party against whom the judgment is granted and
gives such party the benefit of all reasonable inferences deduc-
ible from the evidence. Lynch v. State Farm Mut. Auto. Ins. Co.,
ante p. 136, 745 N.W.2d 291 (2008).
as we have discussed, Czerwinski failed to carry her burden
of establishing her defense and, to the contrary, the inferences
from the evidence favor builders. thus, Czerwinski is estopped
from succeeding on her defense of discharge based on impair-
ment of collateral and she failed to establish her entitlement
to judgment. accordingly, we conclude that the district court
erred as a matter of law in granting Czerwinski’s motion for
summary judgment and we reverse that portion of the district
court’s order.
CoNCLusIoN
In this appeal following proceedings on cross-motions for
summary judgment, we conclude that builders established its
entitlement to judgment and that Czerwinski did not estab-
lish her defenses and was not entitled to summary judgment.
We therefore reverse the district court’s order that sustained
Czerwinski’s motion for summary judgment and overruled
builders’ motion for summary judgment and remand the cause
with directions that judgment be entered in favor of builders
in the amount of $1,427,714.97 plus prejudgment and post-
judgment interest and costs.
reversed And remAnded witH direCtions .
wriGHt and mCC ormACk, JJ., not participating.
buILDers suppLy Co. v. CzerWINskI 	641
Cite as 275 Neb. 622