State v. Young

the meaning of the constitution, which is a question of law.19
And parties have no right to stipulate as to matters of law; such
a stipulation, if made, will be disregarded.20 We find no merit
to Jackson’s argument.
ConClusion
For the foregoing reasons, we reverse the judgment of the
district court and remand the cause with directions to dismiss
Jackson’s complaint.
R eveRsed and Remanded with
diRections to dismiss.
19 see Builders Supply Co., supra note 3.
20 City of Omaha Human Relations Dept. v. City Wide Rock & Exc. Co., 201
neb. 405, 268 n.W.2d 98 (1978).
state of nebRaska , appellee , v.
antoine d. Young , appellant.
780 n.W.2d 28
Filed March 26, 2010. 	no. s-09-246.
1. Effectiveness of Counsel: Records: Trial: Evidence: Appeal and Error. A
claim of ineffective assistance of counsel need not be dismissed merely because
it is made on direct appeal. The determining factor is whether the record is suf-
ficient to adequately review the question.
2. Postconviction: Effectiveness of Counsel: Records: Appeal and Error. under
nebraska law, in order to raise the issue of ineffective assistance of trial counsel
where appellate counsel is different from trial counsel, a defendant must raise on
direct appeal any issue of ineffective assistance of trial counsel which is known
to the defendant or is apparent from the record, or the issue will be procedurally
barred on postconviction review.
3. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington, 466 u.s. 668, 104 s. Ct. 2052, 80 l.
Ed. 2d 674 (1984), the defendant must show that counsel’s performance was defi-
cient and that this deficient performance actually prejudiced his or her defense.
4. Criminal Law: Venue: Proof. Venue may be proved like any other fact in a
criminal case. it need not be established by direct testimony, nor in the words
of the information, but if from the facts in evidence the only rational conclusion
which can be drawn is that the crime was committed in the county alleged, the
proof is sufficient.
602 	279 nEbrAskA rEporTs
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

5. Appeal and Error: Words and Phrases. plain error will be noted only where
an error is evident from the record, prejudicially affects a substantial right of a
litigant, and is of such a nature that to leave it uncorrected would cause a mis-
carriage of justice or result in damage to the integrity, reputation, and fairness of
the judicial process.
6. Appeal and Error. Consideration of plain error occurs at the discretion of an
appellate court.
7. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence to the
contrary, it is presumed that a jury followed the instructions given in arriving at
its verdict.
8. Jury Instructions: Appeal and Error. Although the nebraska pattern jury
instructions are to be used whenever applicable, a failure to follow the pattern
jury instructions does not automatically require reversal.
9. ____: ____. All the jury instructions must be read together, and if, taken as a
whole, they correctly state the law, are not misleading, and adequately cover the
issues supported by the pleadings and the evidence, there is no prejudicial error
necessitating reversal.
10. Effectiveness of Counsel: Jury Instructions. Defense counsel is not ineffective
for failing to raise an argument that has no merit or for failing to object to jury
instructions that, when read together and taken as a whole, correctly state the law
and are not misleading.
Appeal from the District Court for Douglas County: peteR
c. bataillon, Judge. Affirmed.
peder bartling, of bartling law offices, p.C., l.l.o., for
appellant.
Antoine D. Young, pro se.
Jon bruning, Attorney General, and stacy M. Foust for
appellee.
heavican, 	c.J., 	wRight, 	connollY, 	geRRaRd, 	stephan,
mccoRmack, and milleR-leRman, JJ.
stephan, J.
Antoine D. Young was convicted of first degree murder and
use of a deadly weapon in the commission of a felony in the
death of ray s. Webb. Young was sentenced to life imprison-
ment on the murder conviction and to 40 to 40 years’ impris-
onment on the weapons conviction, to be served consecutively.
in this direct appeal, separate briefs were filed by Young’s
appellate counsel and by Young pro se.
sTATE v. YounG 	603
Cite as 279 neb. 602

i. bACkGrounD
on the afternoon of August 25, 2007, Webb was fatally shot
while seated behind the steering wheel of a vehicle which was
stopped in the drive-through lane of a fast-food restaurant in
omaha, nebraska. Two witnesses testified that immediately
prior to the shooting, they were standing with Young outside
a barbershop located across the street from the restaurant.
both witnesses stated that they observed Young cross the
street, approach Webb’s vehicle, and fire the fatal shots from
a handgun. one of these witnesses stated that Young was
bald with a full beard and was wearing a white T-shirt, black
shorts, a black baseball hat, and tennis shoes at the time of
the shooting.
Another witness was a passenger in a vehicle which was
stopped in front of Webb’s vehicle at the time of the shooting.
This witness testified that after hearing what he first thought
were fireworks, he turned and saw a bearded man dressed in
black standing at the driver’s side of Webb’s vehicle. This wit-
ness again heard noises which he thought were fireworks, and
he observed a shiny metallic object in the air in front of the
man standing outside Webb’s vehicle.
A defense witness testified that as he drove past the restau-
rant, he heard shots and observed a bearded man dressed in a
black hat, a black T-shirt, white shorts, and white tennis shoes
approach Webb’s vehicle from the rear, fire a black pistol,
and then flee from the back of the restaurant. He testified that
Young was not the person he observed.
reginald Clark, a defense witness who had been acquainted
with Young since childhood, testified that as he drove past
the restaurant, he observed two unidentified men dressed in
black walking quickly from the drive-through lane. From a
photograph, Clark identified Webb’s vehicle as that which he
observed in the drive-through lane as he drove past. Clark did
not recognize the men he observed walking away from the
restaurant, and he did not hear gunfire or see a weapon. Clark
testified that when he stopped at a nearby intersection, another
motorist came alongside his vehicle and made a comment
which led him to believe that “[s]omething bad” had occurred
604 	279 nEbrAskA rEporTs

at the restaurant. Clark testified that he did not observe Young
in the vicinity of the restaurant as he drove past.
Another witness, “ramona,” testified that on the afternoon
of the shooting, she was leaving the restaurant and observed
Webb, with whom she was acquainted, standing outside his
vehicle, arguing with an unidentified man and woman. When
the argument had concluded, ramona saw Webb enter his vehi-
cle and saw the man with whom he had been arguing approach
another vehicle, retrieve an unidentified object, and place it
beneath his shirt. ramona testified that she then observed the
unidentified man approach Webb’s vehicle and heard two gun-
shots, but that she did not see the shooting.
Testifying in his own defense, Young stated that he was not
present at the barbershop or the restaurant on the afternoon of
August 25, 2007, but instead spent the afternoon at a family
gathering at a city park located approximately 4 miles from
the restaurant. Two persons testified that they saw Young at
the gathering, and a third person who attended the gathering
testified that he observed Young’s vehicle parked nearby. in
response to a question during his cross-examination, Young
testified that he was successful and did well in college. The
prosecutor impeached this testimony using a transcript showing
that Young had failed most of his college courses.
During the jury instruction conference, there was no discus-
sion of an alibi instruction. Approximately 5 minutes after the
instructions were given and the case was submitted to the jury,
the trial judge reconvened the jury in the presence of Young
and counsel and stated that he had forgotten to give an alibi
instruction. The judge then instructed the jury as follows: “At
issue in this case is whether [Young] was present at the time
and place of the crime. The state must prove that [Young] was
present during the time and place of the crime.” outside the
presence of the jury, Young’s counsel objected on the ground
that the instruction should have stated that the state’s burden
of proof was “beyond a reasonable doubt.” The prosecutor
objected on grounds that the alibi instruction was given after
closing arguments and was unnecessary. The court overruled
both objections.
sTATE v. YounG 	605
Cite as 279 neb. 602

The jury returned guilty verdicts, and the court accepted
the verdicts and adjudged Young guilty on both counts. After
he was sentenced and his motion for new trial was overruled,
Young perfected this timely appeal. His appellate counsel is not
the same attorney who represented him at trial.
ii. AssiGnMEnTs oF Error
The sole assignment of error in the brief filed by Young’s
appellate counsel is that Young received ineffective assistance
of counsel at trial. Young argues specifically in that brief that
his trial counsel
(1) failed to offer any evidence whatsoever from three
critical 	exculpatory 	witnesses, 	the 	identity 	of 	which
counsel was aware prior to trial, that Young was not the
person who committed the homicide, (2) failed to elicit
evidence regarding Young’s lack of motive to kill Webb,
(3) failed to develop fully Young’s alibi defense, (4)
failed to tender an alibi instruction during the instruction
conference, (5) failed to elicit testimony from [Young’s
brother], (6) failed to elicit corroborative hearsay testi-
mony from . . . Clark, and (7) failed to prepare Young
properly to testify.1
Young also submitted a pro se brief, in which he argued
that (1) the prosecution failed to establish venue, (2) the pros-
ecutor made improper remarks during closing argument, (3)
the trial judge erred in instructing the jury, (4) the trial judge
failed to properly accept the jury’s guilty plea and adjudge
Young guilty of the crimes charged, and (5) his trial counsel
was ineffective.
iii. sTAnDArD oF rEViEW
[1] A claim of ineffective assistance of counsel need not
be dismissed merely because it is made on direct appeal. The
determining factor is whether the record is sufficient to ade-
quately review the question.2
1 brief for appellant at 15.
2 State v. Robinson, 278 neb. 212, 769 n.W.2d 366 (2009); State v. Davis,
276 neb. 755, 757 n.W.2d 367 (2008).
606 	279 nEbrAskA rEporTs

iV. AnAlYsis
1. eRRoR assigned bY appellate counsel
[2] under nebraska law, in order to raise the issue of inef-
fective assistance of trial counsel where appellate counsel is
different from trial counsel, a defendant must raise on direct
appeal any issue of ineffective assistance of trial counsel which
is known to the defendant or is apparent from the record, or
the issue will be procedurally barred on postconviction review.3
our rule differs from that announced by the u.s. supreme
Court in Massaro v. United States,4 which permits an ineffec-
tive assistance of counsel claim to be brought in a collateral
postconviction proceeding regardless of whether it was raised
on direct appeal. This court has not adopted the federal rule,
noting that, pursuant to Massaro v. United States, it is not a
constitutional requirement.5
but the fact that an ineffective assistance of counsel claim is
raised on direct appeal does not necessarily mean that it can be
resolved. in most instances, it cannot, because the trial record
reviewed on appeal is “devoted to issues of guilt or innocence”
and usually “will not disclose the facts necessary to decide
either prong of the Strickland [v. Washington6] analysis.”7 We
have generally reached ineffective assistance of counsel claims
on direct appeal only in those instances where it was clear from
the record that such claims were without merit8 or in the rare
case where trial counsel’s error was “so egregious and resulted
in such a high level of prejudice [that] no tactic or strategy can
3 State v. Molina, 271 neb. 488, 713 n.W.2d 412 (2006).
4 Massaro v. United States, 538 u.s. 500, 123 s. Ct. 1690, 155 l. Ed. 2d
714 (2003).
5 State v. Marshall, 269 neb. 56, 690 n.W.2d 593 (2005).
6 Strickland v. Washington, 466 u.s. 668, 104 s. Ct. 2052, 80 l. Ed. 2d 674
(1984).
7 Massaro v. United States, supra note 4, 538 u.s. at 505.
8 see, e.g., State v. Thomas, 262 neb. 985, 637 n.W.2d 632 (2002); State v.
Cody, 248 neb. 683, 539 n.W.2d 18 (1995).
sTATE v. YounG 	607
Cite as 279 neb. 602

overcome the effect of the error, which effect was a fundamen-
tally unfair trial.”9
[3] With these principles in mind, we turn to the ineffective
assistance claims which Young, through his appellate counsel,
has asserted on direct appeal. To prevail on a claim of ineffec-
tive assistance of counsel under Strickland v. Washington, the
defendant must show that counsel’s performance was deficient
and that this deficient performance actually prejudiced his or
her defense.10
(a) Evidence of Third-party Guilt
The record reflects that during pretrial discovery, Young’s
trial counsel learned that omaha police had received informa-
tion from an incarcerated person. This person reported that
he was told by his cellmate that a third person had admitted
to killing Webb. Trial counsel also discovered that police had
been told by ramona that she “believed” the same third person
killed Webb, because she observed someone who “might have
matched [the third person’s] description leaving the scene.” The
record also indicates that Webb’s widow initially made a state-
ment to police implicating the same third person in the murder,
but later told police she believed Young was responsible. When
police questioned the third person, he denied involvement,
explained his whereabouts on the day of the shooting, and
passed a polygraph examination.
The record reflects that Young’s counsel attempted to intro-
duce the hearsay testimony regarding the third person’s alleged
admission of involvement in Webb’s murder, arguing that the
evidence should be received under Holmes v. South Carolina.11
The district court rejected this theory. Young now argues that
trial counsel’s theory that the hearsay was admissible under
9 State v. Faust, 265 neb. 845, 875, 660 n.W.2d 844, 872 (2003), disap-
proved on other grounds, State v. McCulloch, 274 neb. 636, 742 n.W.2d
727 (2007).
10 State v. Sellers, 279 neb. 220, 777 n.W.2d 779 (2010); State v. Sepulveda,
278 neb. 972, 775 n.W.2d 40 (2009).
11 see Holmes v. South Carolina, 547 u.s. 319, 126 s. Ct. 1727, 164 l. Ed.
2d 503 (2006).
608 	279 nEbrAskA rEporTs

Holmes v. South Carolina was clearly without merit and con-
tends that trial counsel should have explored other means of
adducing the evidence, including securing the third person’s
presence at trial. We determine that an evaluation of trial coun-
sel’s actions would require an evaluation of trial strategy and of
matters not contained in the record. The record is insufficient
to review this claim of ineffective assistance of counsel in this
direct appeal.12
Young also argues that his trial counsel was ineffective in
failing to elicit testimony from ramona and Webb’s widow
regarding the third person’s alleged involvement in Webb’s
murder. We conclude that the record on direct appeal is not
sufficient to adequately review this claim.
(b) Motive of Third party
Young contends that his trial counsel was ineffective in fail-
ing to present evidence that someone other than Young had a
motive to kill Webb. From our review of the record, we cannot
make any meaningful determination of whether such evidence
existed or, if it did, whether trial counsel made a reasonable
strategic decision not to present it. We thus conclude that the
record on direct appeal is not sufficient to adequately review
this claim.
(c) Alibi Defense
Although Young and three other defense witnesses testified
that Young was at a family gathering 4 miles away from the
shooting at the time it occurred, Young argues that his trial
counsel was ineffective in failing to call additional witnesses
who could have supported his alibi defense. We cannot deter-
mine from this record whether there were additional witnesses
who could have testified regarding the alibi defense or, if so,
whether such testimony would have strengthened or weakened
the evidence which was actually presented. We thus conclude
that the record on direct appeal is not sufficient to adequately
review this claim.
12 see State v. Davis, supra note 2.
sTATE v. YounG 	609
Cite as 279 neb. 602

(d) Alibi instruction
Young claims that his trial counsel was ineffective in failing
to request an alibi instruction. An evaluation of trial counsel’s
actions would require an evaluation of trial strategy and of
matters not contained in the record. We conclude that the
record on direct appeal is not sufficient to adequately review
this claim.
(e) Young’s brother
Young argues that his trial counsel was ineffective in fail-
ing to call as a defense witness Young’s brother, who is the
owner of the barbershop located across the street from the
restaurant where the shooting occurred. We conclude that the
record on direct appeal is not sufficient to adequately review
this claim.
(f) Clark
Young contends that his trial counsel was ineffective in fail-
ing to elicit Clark’s testimony about a statement made to Clark
by an unidentified motorist. The statement related to the details
of what the motorist had seen as he drove past the restaurant.
We note that counsel attempted to establish the admissibility of
this testimony on the theory that the statement made to Clark
was an excited utterance, but the court ruled prior to trial that
the statement was inadmissible on this basis. Clark did testify
that he interpreted the statement as indicating that “[s]omething
bad” had just occurred at the restaurant. We conclude that the
record on direct appeal is not sufficient to adequately review
this claim.
(g) preparation for Testimony
Finally, Young argues that his trial counsel was ineffective
in failing to adequately prepare him to testify. He generally
contends that through better preparation, the impeachment
resulting from his inconsistent testimony on cross-examination
regarding his college grades could have been averted. but on
this record, we cannot determine whether or not counsel
adequately prepared Young to address this issue, and we
note that the impeachment could have been avoided if Young
had simply been truthful about his academic performance in
610 	279 nEbrAskA rEporTs

response to the prosecutor’s initial inquiry. We conclude that
the record on direct appeal is not sufficient to adequately
review this claim.
2. eRRoR assigned in pRo se bRief
(a) Venue
[4] in his supplemental pro se brief, Young argues that
the state failed to prove venue pursuant to neb. rev. stat.
§ 29-1301 (reissue 2008), which provides that except in cir-
cumstances not applicable here, “[a]ll criminal cases shall be
tried in the county where the offense was committed . . . .”
Venue may be proved like any other fact in a criminal case.13
it need not be established by direct testimony, nor in the words
of the information, but if from the facts in evidence the only
rational conclusion which can be drawn is that the crime was
committed in the county alleged, the proof is sufficient.14 The
information against Young alleged that the crimes were com-
mitted in Douglas County, nebraska, and Young was tried in
the district court for that county. several witnesses testified that
Webb was shot outside an omaha restaurant. The paramedic
who responded and pronounced Webb dead at the scene of the
shooting testified that the restaurant was located in Douglas
County. Venue was proved.
(b) Acceptance of Verdict
Young also argues as plain error that his sentence is void
because the district court did not properly accept the jury’s
verdict and adjudge him guilty. The record refutes this claim.
The jury returned its verdict on the afternoon of January 29,
2009. in a journal entry bearing that date, the court wrote,
“Jury resumed deliberations and verdict was reached. Verdict
announced with [Young] being present with his [attorney]
. . . . Jury found [Young] guilty of Count i – murder in the
first degree, and Count ii – use of a deadly weapon to com-
mit a felony. Verdict accepted.” Additionally, in its order
13 State v. Freeman, 267 neb. 737, 677 n.W.2d 164 (2004).
14 Id.
sTATE v. YounG 	611
Cite as 279 neb. 602

of judgment and conviction, filed February 3, 2009, the
court wrote:
[T]he 	jury 	found 	[Young] 	guilty 	on 	both 	counts 	as
charged[.]
. . . .
The verdict of the jury as to these counts is accepted
by the Court and judgment is rendered against [Young] in
conformity with the verdict of the jury.
iT 	is 	THErEForE 	orDErED 	that 	[Young] 	is
adjudged guilty[.]
Young’s contention that the district court erred in failing
to accept the jury’s verdict and adjudge him guilty is with-
out merit.
(c) prosecutor’s remarks
Young argues plain error with respect to statements made by
the prosecutor during closing argument to which no objection
was made. specifically, Young contends that the prosecutor
“vouched for the credibility”15 of various witnesses by noting
they had no reason to lie and that the prosecutor improperly
noted Young had lied during his testimony.
[5-7] plain error will be noted only where an error is evi-
dent from the record, prejudicially affects a substantial right of
a litigant, and is of such a nature that to leave it uncorrected
would cause a miscarriage of justice or result in damage to
the integrity, reputation, and fairness of the judicial process.16
Consideration of plain error occurs at the discretion of an
appellate court.17 During trial testimony, each of the witnesses
referenced in the prosecutor’s closing argument testified either
directly or indirectly that he or she did not have a relationship
with Young or a connection to the murder. Young’s testimony
regarding his academic success can fairly be characterized as
untruthful, given the impeachment evidence adduced. The jury
15 pro se supplemental brief for appellant at 9.
16 State v. Vela, 279 neb. 94, 777 n.W.2d 266 (2010); State v. Molina, supra
note 3.
17 State v. Vela, supra note 16; State v. Sepulveda, supra note 10.
612 	279 nEbrAskA rEporTs

was instructed that statements made by the lawyers were not
evidence and that it should not consider statements made by
the lawyers that were not supported by the evidence. Absent
evidence to the contrary, it is presumed that a jury followed
the instructions given in arriving at its verdict.18 Here, there
is nothing in the record to suggest that the jury did not follow
the court’s instruction, that the state made improper comments
not supported by the evidence, or that Young was prejudiced
in any way. We find no plain error in these portions of the
prosecutor’s argument.
(d) Jury instructions
[8,9] Young also assigns plain error with respect to portions
of jury instructions nos. 1, 7, 8, and 16 to which no objection
was made at trial. Young’s argument focuses on the fact that
the language of the instructions differs slightly from that of
the corresponding sections of our pattern jury instructions for
criminal cases. Although we have stated that the nebraska pat-
tern jury instructions are to be used whenever applicable, we
have recognized that a failure to follow the pattern jury instruc-
tions does not automatically require reversal.19 All the jury
instructions must be read together, and if, taken as a whole,
they correctly state the law, are not misleading, and adequately
cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.20 Applying
this standard, we find no plain error resulting from the differ-
ences between instructions nos. 1, 7, 8, and 16, and the cor-
responding pattern instructions.
(e) ineffective Assistance of Counsel
Young’s pro se brief includes claims of ineffective assistance
of trial counsel in addition to those asserted in the brief filed
18 State v. Daly, 278 neb. 903, 775 n.W.2d 47 (2009); State v. Archie, 273
neb. 612, 733 n.W.2d 513 (2007).
19 State v. Fischer, 272 neb. 963, 726 n.W.2d 176 (2007); McClure v.
Forsman, 266 neb. 90, 662 n.W.2d 566 (2003).
20 State v. Schmidt, 276 neb. 723, 757 n.W.2d 291 (2008); State v. Welch,
275 neb. 517, 747 n.W.2d 613 (2008).
sTATE v. YounG 	613
Cite as 279 neb. 602

by his appellate counsel. First, he contends that his trial coun-
sel was ineffective in failing to investigate or interview any of
the witnesses endorsed by the state. but the record reflects
that counsel took pretrial depositions of several of the state’s
endorsed witnesses. This claim is thus refuted by the record
and without merit.
[10] Young also contends that his trial counsel was ineffec-
tive in failing to object to or otherwise preserve issues regard-
ing venue, acceptance of the verdict, jury instructions, and
remarks made by the prosecutor during closing argument. but
we have considered these issues under Young’s pro se assign-
ments of plain error and concluded that they are without merit.
Defense counsel is not ineffective for failing to raise an argu-
ment that has no merit21 or for failing to object to jury instruc-
tions that, when read together and taken as a whole, correctly
state the law and are not misleading.22 Thus, we can and do
conclude on this record that there is no merit in the pro se inef-
fective assistance claims which correspond to the pro se plain
error assignments.
Finally, Young contends that his trial counsel was ineffec-
tive in stipulating to the licensure, education, background,
and other foundational requirements for the testimony of the
pathologist who performed the autopsy of Webb and testified
regarding his findings. but the record reflects that despite the
stipulation, the pathologist testified that he was a duly licensed
physician specializing in pathology, that he was trained to
perform autopsies, and that he had performed approximately
800 forensic autopsies in the preceding 15 years. Young does
not assign error with respect to any portion of the pathologist’s
substantive testimony. Accordingly, the record is sufficient for
us to conclude that the offer to stipulate to the pathologist’s
professional qualifications did not constitute ineffective assist-
ance of counsel.
21 State v. McHenry, 268 neb. 219, 682 n.W.2d 212 (2004); State v. Nesbitt,
264 neb. 612, 650 n.W.2d 766 (2002).
22 State v. McHenry, supra note 21. see, also, State v. Tucker, 257 neb. 496,
598 n.W.2d 742 (1999).
614 	279 nEbrAskA rEporTs

V. ConClusion
For the reasons discussed, we conclude that the record
does not permit us to reach any of the ineffective assistance
of counsel claims asserted in the brief filed by Young’s appel-
late counsel. However, we do reach all of the claims raised
by Young in his pro se brief, including the additional claims
of ineffective assistance of trial counsel, and conclude that
they are without merit. Accordingly, we affirm the convictions
and sentences.
affiRmed.
DAVEnporT lTD. pArTnErsHip v. 75TH & DoDGE i, l.p. 	615
Cite as 279 neb. 615
davenpoRt limited paRtneRship, appellee , v.
75th & dodge i, l.p., et al ., appellants.
780 n.W.2d 416
Filed March 26, 2010. 	no. s-09-387.
1. Declaratory Judgments. Whether a declaratory judgment action is treated as an
action at law or one in equity is to be determined by the nature of the dispute.
2. Contracts. The determination of rights under a contract is a law action.
3. Judgments: Appeal and Error. in a bench trial of a law action, the trial court’s
factual findings have the effect of a jury verdict and will not be disturbed on
appeal unless clearly wrong. The appellate court does not reweigh the evidence
but considers the judgment in a light most favorable to the successful party and
resolves evidentiary conflicts in favor of the successful party, who is entitled to
every reasonable inference deducible from the evidence.
4. Declaratory Judgments: Appeal and Error. When a declaratory judgment
action presents a question of law, an appellate court has an obligation to reach its
conclusion independently of the conclusion reached by the trial court with regard
to that question.
5. 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.
6. Contracts. Whether a contract is ambiguous is a question of law.
7. ____. The meaning of an ambiguous contract is generally a question of fact.
8. ____. A court interpreting a contract must first determine as a matter of law
whether the contract is ambiguous.
9. ____. A contract written in clear and unambiguous language is not subject to
interpretation or construction and must be enforced according to its terms.
10. 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.