Davenport Ltd. Partnership v. 75th & Dodge I, L.P.

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.
A ffirmed.
dAVenport ltd. pArtnersHip v. 75tH & dodge i, l.p. 	615
Cite as 279 neb. 615
dAvenport L imited 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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

11. Contracts. A court is not free to rewrite a contract or to speculate as to terms of
the contract which the parties have not seen fit to include.
12. ____. When a court has determined that ambiguity exists in a document, an inter-
pretative meaning for the ambiguous word, phrase, or provision in the document
is a question of fact for the fact finder.
13. Contracts: Evidence. if a contract is ambiguous, the meaning of the contract is
a question of fact, and a court may consider extrinsic evidence to determine the
meaning of the contract.
14. Contracts: Parol Evidence. A written instrument is open to explanation by
parol evidence when its terms are susceptible to two constructions or where the
language employed is vague or ambiguous.
15. Waiver: Words and Phrases. Waiver is a voluntary and intentional relinquish-
ment or abandonment of a known existing legal right or such conduct as warrants
an inference of the relinquishment of such right.
16. Waiver: Estoppel. in order to establish a waiver of a legal right, there must be
clear, unequivocal, and decisive action of a party showing such purpose, or acts
amounting to estoppel on his or her part.
17. Contracts: Waiver: Proof. A written contract may be waived in whole or in part,
either directly or inferentially, and the waiver may be proved by express declara-
tions manifesting the intent not to claim the advantage, or by so neglecting and
failing to act as to induce the belief that it was the intention to waive.
18. Leases. Acceptance of an option to extend a lease must be strictly construed in
accordance with the terms of the option.
19. Landlord and Tenant: Leases: Time. A lessee has no right to a renewal term
unless the option is exercised in a timely manner in strict accordance with the
specifications of the lease agreement.
20. Contracts. A contract is viewed as a whole in order to construe it.
21. ____. Whatever the construction of a particular clause of a contract, standing
alone, may be, it must be read in connection with other clauses, and all writings
forming part of the same transaction are interpreted together.
22. Mortgages: Leases. A mortgagee of a leasehold interest takes his or her mort-
gage subject to all of the covenants and conditions of the lease, and the mortgage
is only coextensive with the term of the lease. the mortgage interest falls with the
termination of the leasehold interest.
Appeal from the district Court for douglas County: thomAs
A. otepkA, Judge. Affirmed.
Heather Voegele-Andersen and elisa davies, of Koley Jessen,
p.C., l.l.o., for appellants.
Joseph e. Jones and rebecca A. Zawisky, of Fraser stryker,
p.C., l.l.o., for appellee.
heAvicAn, c.J., Wright, connoLLy, gerrArd, stephAn, and
mccormAck , JJ.
616 	279 nebrAsKA reports

gerrArd, J.
nAture oF CAse
davenport limited partnership (davenport) filed a declara-
tory judgment action against 75th & dodge i, l.p.; 75th &
dodge ii, l.p.; and dodge Mortgage, l.l.C. (collectively the
dodge entities), seeking a declaration that the dodge enti-
ties had no rights in a lease relating to a parcel of land near
75th and dodge streets in omaha, nebraska. When the suit
was filed, davenport was the landlord of the property under
a commercial lease to dodge i. dodge i sublet the property
to dodge ii. the primary question presented in this case is
whether dodge i properly gave notice to davenport to renew
the lease for an additional 10 years or more.
bACKground
in 1960, ernst lied leased a 9-acre tract of land located
at 7520 dodge street in omaha to the brandeis investment
Company. the brandeis investment Company then leased its
interest in the property to lenrich Associates through a lease
(the ground lease) originally executed in March 1966. the
next month, lenrich Associates entered into a lease (the space
lease) with diana stores Corporation. the ground lease was
originally for a 32-year term, expiring in 1998. it allowed for
renewal in a minimum of 10-year increments, not to extend
beyond the year 2059. to exercise its option to extend the
ground lease, the tenant was required to give written notice
to the landlord at least 12 months before the end of the term.
Article XXXi(a) of the ground lease states:
on or before one (1) year . . . prior to the expiration date
of any then existing term (including the original term
hereof or any extended or renewed term occurring after
the termination date of the original term hereof), tenant
shall execute and deliver in writing to landlord, notice of
its desire to so extend or renew, and said notice shall set
forth the beginning and ending date of any such extended
or renewal term.
through a variety of assignments and transfers, davenport
and the dodge entities eventually became parties to two sepa-
rate leases for the property. davenport became the landlord
dAVenport ltd. pArtnersHip v. 75tH & dodge i, l.p. 	617
Cite as 279 neb. 615

of the ground lease, with dodge i as lessee, so dodge i
became landlord of the space lease, with dodge ii and dodge
Mortgage as lessees. dodge ii and dodge Mortgage also
became leasehold mortgagees of the ground lease.
Henry singer, the president and sole owner of dodge i’s gen-
eral partner, testified that in 1995, he had a telephone conversa-
tion with Alan baer, a predecessor in interest to davenport’s
rights, about renewing the ground lease. According to singer,
baer asked singer what he “intended to do about [the] lease.”
singer said that he “would be renewing the lease to be co-
terminus with . . . dodge ii,” apparently referring to the space
lease, which runs at least until 2017. singer testified that baer
responded, “fine, that’s okay.” there is no written evidence
memorializing that telephone conversation. there is also no
evidence that dodge i ever disclosed to davenport that such a
conversation had occurred, at any time between baer’s death in
2002 and May 31, 2007.
it is unclear from the record whether the ground lease was
formally renewed at the end of the original lease term in 1998.
However, davenport continued to accept rent from dodge i
after the end of the original lease term.
on April 15, 2003, James Maenner, an employee with a
commercial real estate investment company, sent a letter to
robert Murray, davenport’s counsel, regarding the possible
purchase of davenport’s leasehold position by dodge i and
dodge ii. A report enclosed with the letter indicated that the
ground lease had expired on May 31, 1998, and could be
renewed in 10-year “increments” not past May 31, 2059. Also
included under “important dates for each leasehold position”
was the statement “notice to renew no later than one (1) year
before expiration of a renewal period.” singer also received
a copy of the letter and report, and there is no evidence that
dodge i or singer questioned Maenner’s statement regarding
the lease expiration at that time.
in october 2007, dodge i advised davenport that it had
found a potential tenant for the space lease and sent a consent
agreement to Murray asking that a representative of davenport
sign it. in response, Murray, after consultation with davenport’s
chairman, sent an e-mail advising dodge i that davenport had
618 	279 nebrAsKA reports

not received timely written notice from dodge i in 2007 of
its intent to exercise its right to renew the ground lease for
another 10 years. the e-mail stated that “it is davenport’s
understanding that the possessory interest of [dodge i] will
expire as of May 31, 2008,” and that “davenport does not
believe it is either fair or, in this case, in compliance with the
documents, for [dodge i] to fail to give notice of renewal until
a new tenant has been found for the property.”
upon receipt of the e-mail, singer was “shocked and sur-
prised.” singer testified that after receiving the e-mail, he
reviewed the lease, noting the written notice requirement for
a 10-year term renewal. singer then sent a letter to Murray
explaining that he felt dodge i had “made our intentions clear
as to renewing the lease between davenport and [dodge i]
on several occasions.” singer concluded his letter by stating,
“However, as a matter of precaution, this should serve as our
formal notice of renewal for an additional ten (10) year term
(i.e., ending in 2018).”
one month later, davenport filed this declaratory judg-
ment action, seeking a declaration that dodge i had not
properly renewed the lease. After a bench trial, the district
court entered judgment for davenport, finding that the dodge
entities had no continuing rights to the lease property. the
district court found that dodge i failed to give written notice,
that davenport did not waive the written notice requirement,
and that the acceptance of rent from dodge i after 1998 oper-
ated as an extension of the lease for the 10-year minimum
lease period required by the ground lease. the dodge enti-
ties appeal.
AssignMents oF error
the dodge entities assign that the district court erred in
(1) finding a 10-year renewal period in the ground lease;
(2) finding that davenport’s acceptance of rent following the
original term of the ground lease constituted only a 10-year
extension of the ground lease by operation of law;
(3) applying an improper legal standard in determining
whether the written notice requirement of the ground lease
had been waived;
dAVenport ltd. pArtnersHip v. 75tH & dodge i, l.p. 	619
Cite as 279 neb. 615

(4) finding that the written notice requirement of the ground
lease had not been waived;
(5) finding that the telephone conversation between singer
and baer did not constitute a waiver of the written notice
requirement of the ground lease;
(6) finding that dodge i did not properly provide notice of its
intent to renew the ground lease beyond May 31, 2008; and
(7) finding that dodge ii and dodge Mortgage’s lease-
hold mortgagee interests end upon termination of the ground
lease.
stAndArd oF reVieW
[1-3] 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.1 the determination of rights under a
contract is a law action.2 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.3 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
[4-7] When a declaratory judgment action presents a ques-
tion 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 the meaning of a
contract is a question of law, in connection with which an
appellate court has an obligation to reach its conclusions
1 Boren v. State Farm Mut. Auto. Ins. Co., 225 neb. 503, 406 n.W.2d 640
(1987).
2 see Perry v. Esch, 240 neb. 289, 481 n.W.2d 431 (1992).
3 Anderson Excavating v. SID No. 177, 265 neb. 61, 654 n.W.2d 376
(2002).
4 Pavers, Inc. v. Board of Regents, 276 neb. 559, 755 n.W.2d 400 (2008).
5 Mortgage Express v. Tudor Ins. Co., 278 neb. 449, 771 n.W.2d 137
(2009).
620 	279 nebrAsKA reports

independently of the determinations made by the court below.6
And whether a contract is ambiguous is a question of law.7
the meaning of an ambiguous contract, however, is generally
a question of fact.8
AnAlYsis
ground L eAse WAs extended in 1998
for 10 yeArs
dodge i’s first two assignments of error deal with the dura-
tion of the ground lease renewal. the district court found
that the parties agreed to a 10-year renewal period and that
therefore, the ground lease extended until May 31, 2008.
For reasons that will be explained below, we agree with the
district court’s conclusion that singer’s 1995 telephone conver-
sation with baer was not an effective extension of the ground
lease. but the parties agree that the continued payment and
acceptance of rent after 1998 effected an extension of the
ground lease. the question, under those circumstances, is
what term is implied by such an extension. dodge i argues
that the district court erred in finding a 10-year renewal period
in the ground lease, and specifically contends that it was
error to find davenport’s acceptance of rent after expiration of
the original term of the ground lease constituted only a 10-
year extension.
[8-10] 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 However, a contract is ambiguous
when a word, phrase, or provision in the contract has, or is
6 Builders Supply Co. v. Czerwinski, 275 neb. 622, 748 n.W.2d 645
(2008).
7 see Gary’s Implement v. Bridgeport Tractor Parts, 270 neb. 286, 702
n.W.2d 355 (2005).
8 Id.
9 Kluver v. Deaver, 271 neb. 595, 714 n.W.2d 1 (2006).
10 Id.
dAVenport ltd. pArtnersHip v. 75tH & dodge i, l.p. 	621
Cite as 279 neb. 615

susceptible of, at least two reasonable but conflicting interpre-
tations or meanings.11
in the instant case, the district court effectively concluded
that the ground lease was ambiguous and determined that the
duration of the ground lease renewal period was 10 years. the
ground lease provides, in pertinent part:
tenant shall have the right and option . . . to renew the
term of this lease for additional periods of time, each of
which shall not be less than ten (10) years in duration,
upon the same terms and conditions as in this lease con-
tained . . . save and except that in no event shall the date
of termination of any such extension or renewal period
extend beyond May 31, 2059, such option in each such
instances to be exercised in the following manner[.]
this provision is susceptible to different interpretations. by
the terms of the ground lease, a tenant would be able to renew
the term of the lease for an additional period of time ranging
from 10 to 60 years. thus, when the parties agree to renew the
ground lease, it is not at all clear for what duration, except
that the “additional periods of time” will not be less than 10
years or extend beyond 2059. in other words, the ground lease
is ambiguous regarding the effect of an unspecified “holdover”
extension of the lease.
[11-14] Having concluded that the ground lease is ambig-
uous, we turn next to its meaning. A court is not free to rewrite
a contract or to speculate as to terms of the contract which the
parties have not seen fit to include.12 rather, when a court has
determined that ambiguity exists in a document, an interpreta-
tive meaning for the ambiguous word, phrase, or provision in
the document is a question of fact for the fact finder.13 in this
regard, therefore, if a contract is ambiguous, the meaning of
the contract is a question of fact, and a court may consider
extrinsic evidence to determine the meaning of the contract.14
11 Id.
12 Gary’s Implement, supra note 7.
13 Id.
14 Ruble v. Reich, 259 neb. 658, 611 n.W.2d 844 (2000).
622 	279 nebrAsKA reports

A written instrument is open to explanation by parol evidence
when its terms are susceptible to two constructions or where
the language employed is vague or ambiguous.15
the district court’s finding that the parties agreed to a 10-
year renewal period, and that the ground lease was extended
only until May 31, 2008, is not clearly erroneous; it is fully
supported by the record. to begin with, Maenner’s report,
which was provided to all the parties and with which none
of them disagreed, indicates that the parties understood the
ground lease to renew in 10-year increments. in particular, the
term “increments,” and reference to ongoing terms of renewal,
suggests the parties foresaw multiple renewal periods and,
therefore, did not consider the first renewal, in 1998, to extend
the lease until 2059.
Consistent with Maenner’s report, davenport’s e-mail to
dodge i in november 2007, regarding dodge i’s failure to
renew the ground lease for an additional 10 years, is con-
sistent only with an understanding of a 10-year renewal term.
dodge i’s response, stating that dodge i thought its intent to
renew was clear, but also serving “formal notice of renewal
for an additional ten (10) year term (i.e., ending in 2018),” is
also consistent only with such an understanding of the ground
lease. singer’s response was not that the ground lease did not
require renewal after 10 years—it was that singer thought the
ground lease already had been renewed for another 10 years.
but the 10-year renewal period was assumed. singer was, in
effect, confirming the parties’ understanding that the original
renewal was for 10 years.
When we consider the judgment in a light most favorable
to davenport, as we must, we conclude that the district court’s
factual finding that the renewal term was 10 years was not
clearly erroneous. Although the parties could have extended
the ground lease for a period longer than 10 years, so long
as it did not extend beyond 2059, the language of the ground
lease, illuminated by the dealings of the parties, suggests
that a holdover extension of the lease would be for a 10-year
15 In re Trust Created by Cease, 267 neb. 753, 677 n.W.2d 495 (2004).
dAVenport ltd. pArtnersHip v. 75tH & dodge i, l.p. 	623
Cite as 279 neb. 615

period. the dodge entities’ first assignment of error is with-
out merit.
pAyment And AcceptAnce of rent did not
extend ground L eAse to 2059
in a related assignment of error, dodge argues that the
district court erred in finding davenport’s acceptance of rent
after expiration of the original term of the ground lease
constituted only a 10-year extension. dodge i asserts that
the payment and acceptance of rent from June 1998 through
october 2007 extended the ground lease by operation of
law to 2059, the total length of time for the option to renew.
in support of its position, dodge i cites Enterprise Co. v.
Americom Corp.16
in Enterprise Co., the parties entered into a written lease
agreement for commercial office space. the lease term ran for
3 years. the lease provided that the tenant would be entitled to
a 3-year extension at a higher rent if the tenant exercised the
option in writing no later than 6 months before the end of the
original term. the tenant did not provide written notice, but
instead held over and paid the higher rent provided for in the
option. At the end of the first year, the tenant vacated the prem-
ises. the landlord contended that the tenant had exercised the
option by holding over and was liable for the 2 remaining years
of the extended term. the nebraska Court of Appeals agreed
and held that the tenant exercised the option to renew the lease
for the extended 3-year term when it held over and paid the
increased rent as provided in the option provision of the written
lease, even though it did not provide written notification of its
exercise of the option.
Enterprise 	Co., 	however, 	is 	of 	limited 	value 	here. 	in
Enterprise Co., the tenant’s only extension option was for a 3-
year period at a higher rent. in this case, however, the ground
lease permitted a tenant to renew potentially six times, as
long as the renewal term was at least 10 years and did not
last beyond 2059. in fact, Enterprise Co. supports the district
16 Enterprise Co. v. Americom Corp., 1 neb. App. 1125, 510 n.W.2d 537
(1993).
624 	279 nebrAsKA reports

court’s judgment, because Enterprise Co. makes clear that
an extension by default—a holdover—occurs pursuant to the
extension provision of the lease. As we discussed above, the
record makes it clear that the parties to this case renewed the
ground lease in 1998 for 10 years. the payment of rent was
consistent with that understanding.
We cannot agree with dodge i’s contention that Enterprise
Co. supports a finding that the ground lease was extended
until 2059. neither the language of the contract nor the behav-
ior of the parties was consistent with such an understanding.
therefore, we conclude that dodge i’s second assignment of
error is without merit.
dAvenport did not WAive
notice requirement
to comply with the contractual language of the ground
lease, dodge i was required to provide written notice of its
intent to renew the ground lease. the district court reasoned
that singer’s purported extension of the ground lease, in his
1995 telephone conversation with baer, was ineffective because
baer did not waive the written notice requirement. dodge i
argues that the district court erred and that the ground lease
was extended in 1995 to last until 2017.
[15-17] Waiver is a voluntary and intentional relinquish-
ment or abandonment of a known existing legal right or such
conduct as warrants an inference of the relinquishment of such
right.17 in order to establish a waiver of a legal right, there must
be clear, unequivocal, and decisive action of a party show-
ing such purpose, or acts amounting to estoppel on his or her
part.18 A written contract may be waived in whole or in part,
either directly or inferentially, and the waiver may be proved
by express declarations manifesting the intent not to claim the
advantage, or by so neglecting and failing to act as to induce
the belief that it was the intention to waive.19
17 Jelsma v. Scottsdale Ins. Co., 231 neb. 657, 437 n.W.2d 778 (1989).
18 Id.
19 Id.
dAVenport ltd. pArtnersHip v. 75tH & dodge i, l.p. 	625
Cite as 279 neb. 615

[18,19] our precedent has long adhered to the general rule
that acceptance of an option to extend a lease must be strictly
construed in accordance with the terms of the option.20 For
example, in Wolf v. Tastee Freez Corp.,21 we held that a lessee
who provided only an 89-day written notice in the face of a
provision which required a 90-day written notice had failed to
properly exercise the renewal option. We held that a notice of
renewal was served too late, but we reversed the trial court’s
grant of a summary judgment in favor of the lessors, because
there was a question of fact as to whether oral notice was
timely given. in so ruling, we wrote:
the lessors’ agreement to renew is an executory contract,
and until the lessee has exercised it in some affirmative
way, the lessor cannot be held for the additional term.
that the acceptance of an offer must be made within the
time specified in the offer is a general rule of law.22
under a provision specifically designating the time within
which notice to extend a lease must be given, that time is of
the essence, and such provision is to be strictly construed.23
A lessee has no right to the renewal term unless the option
is exercised in a timely manner in strict accordance with the
specifications of the lease agreement.24
As a preliminary matter, dodge i argues that the district
court erred in applying an “improper legal standard” in deter-
mining whether the written notice requirement of the ground
lease had been waived. if the proper legal standard had been
applied, dodge i argues, the district court would have found a
waiver of the written notice requirement. And dodge i argues
that the district court erred in finding that the written notice
requirement of the ground lease was not waived by the
telephone conversation between singer and baer. essentially,
20 Guy Dean’s Lake Shore Marina v. Ramey, 246 neb. 258, 518 n.W.2d 129
(1994).
21 Wolf v. Tastee Freez Corp., 172 neb. 430, 109 n.W.2d 733 (1961).
22 Id. at 432, 109 n.W.2d at 735.
23 Guy Dean’s Lake Shore Marina, supra note 20.
24 Id.
626 	279 nebrAsKA reports

dodge i argues that if Wolf had been applied to the facts here,
the district court would have found a waiver of the written
notice requirement.
the district court discussed Wolf at length and concluded
that it was of limited value in deciding this case. We agree.
As explained above, in Wolf, we held that a notice of renewal
was served too late, but we reversed the trial court’s grant of a
summary judgment in favor of the lessors, because there was a
question of fact as to whether oral notice was timely given. in
Wolf, there were multiple conversations regarding the renewal
term, near the time for renewal of the lease, and there was spe-
cific reference to the notice requirement. the lessors offered
that the lessee could provide notice to the lessors at a later
time in the following spring, after the written notice of renewal
was required.
the facts here are substantially different. to begin with,
the district court questioned whether the alleged conversation
between singer and baer occurred, noting that dodge i failed
to disclose the purported conversation anytime prior to singer’s
deposition. the court also noted that the alleged conversa-
tion was not mentioned in singer’s november 2007 letter to
davenport, despite the letter’s reference to three other circum-
stances which dodge i believed satisfied its intent to renew.
in fact, there is no evidence that at any time between 2002,
when baer died, and May 31, 2007, dodge i ever disclosed to
davenport that such a conversation occurred.
Furthermore, even if the purported conversation took place,
there is no evidence that baer voluntarily and intentionally
relinquished a known existing legal right, namely a right to
waive notice of renewal. based on our review of the record, we
find no evidence that baer intentionally relinquished a known
right or that either party was considering the notice require-
ment when the telephone conversation occurred.
given the lack of evidence surrounding the alleged con-
versation, we cannot construe the acceptance of rent after
the expiration of the original term as supporting a conclusion
that the ground lease was extended to 2017 with no written
notice. And we cannot find that the district court’s findings
to that effect were clearly wrong. dodge i can point to only
dAVenport ltd. pArtnersHip v. 75tH & dodge i, l.p. 	627
Cite as 279 neb. 615

one purported conversation that occurred in 1995—roughly 12
years before expiration of the first 10-year renewal term and
2 years before the original term expired—that made no refer-
ence to the notice requirement. therefore, we conclude that
dodge i’s assignment of error is without merit.
L eAsehoLd mortgAgees cAnnot cure
expirAtion of ground L eAse
in the final assignment of error, dodge ii and dodge
Mortgage argue that even if the court finds that dodge i does
not have continuing rights under the ground lease, they have
(or at least could have) continuing legal rights as leasehold
mortgagees pursuant to a “tri-party Agreement.”
the parties to the tri-party Agreement, which was entered
into shortly after the ground lease, were the fee owner of
the property (lied), davenport’s predecessor (the brandeis
investment Company), and dodge i’s predecessor (lenrich
Associates), and the tri-party Agreement is binding upon the
successors in interest to its parties. At issue here is exhibit d
to the tri-party Agreement. the tri-party Agreement provided
that the parties would execute exhibit d within 10 days of a
request made by the sublessee, now dodge i. exhibit d pro-
vides, in pertinent part:
3. that notwithstanding any provisions in the lease
the Fee owner [lied] and Fee lessee [davenport] will
permit leasehold Mortgagee [dodge Mortgage] to cure
any default on the part of sublessee [dodge i] from time
to time in accordance with the provisions contained in
[the ground lease] . . . and that further they will permit
any leasehold Mortgagee, its successors and assigns, to
obtain a new sublease under the terms and provisions
as set forth in the [ground lease] and as referred to
in paragraph 1 above, notwithstanding any forfeiture,
termination or other cancellation or surrender of said
[ground lease].
dodge ii and dodge Mortgage argue that exhibit d provides
them a right to cure in the event the ground lease expires.
specifically, they argue that the term “termination” includes
expiration of the lease. davenport contends, on the other
628 	279 nebrAsKA reports

hand, that the terms “forfeiture,” “termination,” “cancella-
tion,” and “surrender” do not include expiration. And because
the ground lease expired, davenport argues, dodge ii and
dodge Mortgage are not permitted to cure any default by
dodge i.
[20,21] A court is not free to rewrite a contract or to specu-
late as to terms of the contract which the parties have not seen
fit to include.25 And a contract is viewed as a whole in order to
construe it.26 Whatever the construction of a particular clause
of a contract, standing alone, may be, it must be read in con-
nection with other clauses,27 and all writings forming part of
the same transaction are interpreted together.28
Here, the term “expiration” was not included in paragraph 3
of exhibit d, but “expiration” was included in other sections of
the tri-party Agreement. For example, paragraph C of the tri-
party Agreement states that the fee owner agrees to the ground
lease and would be bound by the ground lease “in the event
of the cancellation, termination, expiration or surrender of the
lease [to davenport] for any reason.” (emphasis supplied.)
And the term “expiration” is used in relation to a lease or
sublease several other times in the tri-party Agreement and
its exhibits.
Most pertinently, exhibit C to the tri-party Agreement was
drafted to secure the interests of lessees under the space
lease, much in the same way that exhibit d was drafted
to secure the interests of leasehold mortgagees. but unlike
exhibit d, exhibit C expressly provided that the space lease
would remain in effect “[i]n the event of the termination of
the [ground lease] or in the event said [ground lease] shall
terminate or expire for any reason whatsoever before any of
25 Gary’s Implement, supra note 7.
26 Hearst-Argyle Prop. v. Entrex Comm. Servs., ante p. 468, 778 n.W.2d 465
(2010).
27 Poulton v. State Farm Fire & Cas. Cos., 267 neb. 569, 675 n.W.2d 665
(2004).
28 see, Union Ins. Co. v. Land and Sky, Inc., 247 neb. 696, 529 n.W.2d 773
(1995); Smith v. United States Fidelity & Guaranty Co., 142 neb. 321,
6 n.W.2d 81 (1942).
dAVenport ltd. pArtnersHip v. 75tH & dodge i, l.p. 	629
Cite as 279 neb. 615

the dates provided for in said space lease . . . .” (emphasis
supplied.) And, in fact, the record establishes that dodge ii
has availed itself of exhibit C to extend its tenancy through
the end of the space lease, despite the expiration of the
ground lease.
the tri-party Agreement and exhibits, when read together,
support the district court’s conclusion that the natural expira-
tion of the ground lease is not a “termination” of the ground
lease within the meaning of exhibit d. exhibit d permits a
leasehold mortgagee to cure a “default” by dodge i on the
ground lease and obtain a new lease under the terms of the
ground lease notwithstanding “termination.” but a “default,”
in this context, is the omission or failure to perform a legal or
contractual duty.29 because dodge i was not required to extend
the ground lease, no “default” occurred here. And contrary
to the dodge entities’ argument, a “termination” can refer not
only to an ending or conclusion, but to “[t]he act of ending
something.”30 it is apparent that when used in the tri-party
Agreement, the word “termination” refers not to a natural expi-
ration brought about by the passage of time, but to a premature
termination effected by some other cause.31
in other words, exhibit d would have been available to a
leasehold mortgagee had dodge i breached the ground lease,
permitting davenport to terminate the ground lease before it
expired. but that is not the case here. the expression of one
thing implies the exclusion of another,32 and in this case, the
use of the words “expiration” and “termination” together in
several places, but not in exhibit d, provides ample support
for the district court’s conclusion that the expiration of the
ground lease was not a “termination” within the meaning of
exhibit d.
[22] the mortgagee of the leasehold interest takes his mort-
gage subject to all of the covenants and conditions of the
29 black’s law dictionary 480 (9th ed. 2009).
30 Id. at 1609.
31 Cf. Reimers-Hild v. State, 274 neb. 438, 741 n.W.2d 155 (2007).
32 see, e.g., Hafeman v. Gem Oil Co., 163 neb. 438, 80 n.W.2d 139 (1956).
630 	279 nebrAsKA reports

lease, and the mortgage is only coextensive with the term of
the lease.33 the mortgage interest falls with the termination of
the leasehold interest.34 because dodge i did not provide writ-
ten notice of its intent to renew the ground lease for another
term by May 31, 2007, the lease expired on May 31, 2008, and
dodge ii and dodge Mortgage cannot rely on exhibit d of the
tri-party Agreement to revive it.
ConClusion
based on the foregoing reasons, we affirm the judgment of
the district court.
A ffirmed.
miLLer-L ermAn, J., not participating.
33 Bowen v. Selby, 106 neb. 166, 183 n.W. 93 (1921).
34 Id.
dAVenport ltd. pArtnersHip v. 75tH & dodge i, l.p. 	631
Cite as 279 neb. 615