                                                                  2015 WI 65

                  SUPREME COURT                OF     WISCONSIN
CASE NO.:                2013AP1532
COMPLETE TITLE:          Ash Park, LLC,
                                    Plaintiff-Respondent-Petitioner,
                              v.
                         Alexander & Bishop, Ltd.,
                                    Defendant,
                         Re/Max Select, LLC,
                                    Intervening-Defendant-Appellant,
                         Ash Investors, LLC,
                                    Intervenor.

                            REVIEW OF A DECISION OF THE COURT OF APPEALS
                           (Reported at 356 Wis. 2d 249, 853 N.W.2d 618)
                                     (Ct. App. 2014 – Published)
                                        PDC No. 2014 WI App 87

OPINION FILED:           July 7, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           March 4, 2015

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Brown
   JUDGE:                William M. Atkinson

JUSTICES:
   CONCURRED:            ROGGENSACK, C. J. concurs (Opinion filed).
   DISSENTED:
   NOT PARTICIPATING:    PROSSER, J. did not participate.

ATTORNEYS:
       For the plaintiff-respondent-petitioner, briefs were filed
by    George      Burnett    and   the   Law   Firm   of    Conway,   Olejniczak   &
Jerry, S.C., Green Bay, and oral argument by George Burnett.


       For the intervening-defendant-appellant, briefs were filed
by Michael O. Marquette and Marquette Law-Attorneys, S.C., Green
Bay, and oral argument by Michael O. Marquette.


       For the intervenor, there was a brief by Bridget M. Hubing
and    Reinhart         Boerner    Van   Deuren,    S.C.,    Waukesha,   and   oral
argument by J. Bushnell Nielsen.
     An amicus curiae brief was filed by Debra P. Conrad for the
Wisconsin Realtors Association, Madison.




                                2
                                                                             2015 WI 65
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.       2013AP1532
(L.C. No.    2007CV2832)

STATE OF WISCONSIN                                 :            IN SUPREME COURT

Ash Park, LLC,

              Plaintiff-Respondent-Petitioner,

      v.

Alexander & Bishop, Ltd.,
                                                                          FILED
              Defendant,                                              JUL 7, 2015

Re/Max Select, LLC,                                                     Diane M. Fremgen
                                                                     Clerk of Supreme Court

              Intervening-Defendant-Appellant,

Ash Investors, LLC,

              Intervenor.




      REVIEW of a decision of the Court of Appeals.                      Affirmed.


      ¶1      SHIRLEY      S.   ABRAHAMSON,   J.       This     is   a   review      of   a
published decision of the court of appeals.1                      The sole question
presented is whether Ash Park, LLC (the seller of a parcel of
vacant land) is liable to pay a broker's commission to Re/Max
Select, LLC (the broker for the land).
      1
       Ash Park, LLC v. Alexander & Bishop, Ltd., 2014 WI App 87,
356 Wis. 2d 249, 853 N.W.2d 618.
                                                                                No.      2013AP1532



       ¶2      The one-party listing contract between Ash Park and
Re/Max      provides    in    relevant       part       that      Ash    Park       shall      pay    a
broker's       commission      to     Re/Max       if     Ash     Park     enters        into        an
"enforceable         contract"       for    the    sale      of    the    land.          Ash    Park
entered into a contract for the sale of the land with Alexander
&   Bishop,     Ltd.         Whether       Re/Max       is   entitled          to    a   broker's
commission turns on whether the purchase contract between Ash
Park     and    Alexander        &     Bishop       constitutes           an        "enforceable
contract" within the meaning of the listing contract between Ash
Park and Re/Max, even though Alexander & Bishop breached and the
sale of the land was never consummated.
       ¶3      The    Circuit        Court    for       Brown       County,          William         M.

Atkinson, Judge, granted summary judgment to Ash Park, declaring
that   Ash     Park    owed    no     broker's       commission           to    Re/Max.          The
circuit court ordered Re/Max's broker lien discharged from the
property.
       ¶4      The    court    of     appeals      reversed         the    circuit          court's
summary judgment and remanded the cause to the circuit court
with instructions to determine and award Re/Max its broker's
commission,          prejudgment           interest,         costs,        and        reasonable
attorney's fees.          The court of appeals further instructed the
circuit court to determine whether Re/Max's broker lien should
be reinstated.
       ¶5      This court granted review of the sole issue presented

by Ash Park in its petition for review:

       Is a vacant land offer to purchase an "enforceable
       contract" so as to require a seller to pay three

                                               2
                                                                                       No.    2013AP1532


       hundred seventy-eight thousand dollars ($378,000) in
       commission under a real estate listing contract when
       the seller obtained a judicial order for specific
       performance, but the buyer (who the realtor found)
       lacked the funds to purchase and could not be
       compelled to honor that order?
       ¶6         We    did     not   grant     review          of    the       issue    of    whether
Re/Max's broker lien should be reinstated.2
       ¶7         We now affirm the decision of the court of appeals.
We   conclude           that    the   purchase             contract    between         Ash    Park    and

Alexander & Bishop constitutes an "enforceable contract" within
the meaning of the listing contract between Ash Park and Re/Max.
Re/Max is therefore entitled to a broker's commission from Ash
Park       even        though    Alexander         &       Bishop     breached         the    purchase
contract and the sale was never consummated.
                                                       I
       ¶8         The facts are undisputed for purposes of this review.
       ¶9         Ash    Park     wished      to       sell     a    parcel       of    vacant       land

located       in        the     Village    of          Ashwaubenon          in     Brown       County,
Wisconsin.
       ¶10        On March 12, 2007, Ash Park and Re/Max entered into a
one-party listing contract.                   Ash Park and Re/Max used a standard
form       contract        (titled     "WB-3           VACANT       LAND    LISTING          CONTRACT")
approved          by      the    Wisconsin             Department          of     Regulation          and
Licensing.


       2
       Because this court did not grant review of the broker lien
issue, the court of appeals' decision on that issue still
stands.   Whether the broker lien should be reinstated must be
determined by the circuit court on remand.



                                                       3
                                                                              No.     2013AP1532



        ¶11    The    listing       contract         provided    that     the       list    price
would     be    $6.2     million         and    that    the     listing      would     be     for
Alexander & Bishop only.                  It further provided that Re/Max would
be entitled to a broker's commission equal to six percent of the
purchase price if, during the term of the listing, Ash Park
"sells or accepts an offer which creates an enforceable contract
for the sale of all or any part of the Property."
        ¶12    During the term of the listing, Alexander & Bishop
offered to purchase Ash Park's land for $6.3 million ($100,000
more than the list price).                 Ash Park accepted the offer.
        ¶13    Alexander & Bishop's offer to purchase Ash Park's land
did   not      include    a    financing        contingency.            It    did,    however,

include a lease contingency.                         The lease contingency provided
that the "Offer is contingent upon the Buyer negotiating a lease
[o]r leases for the subject property with terms and conditions
acceptable       to      the       Buyer . . . within           [120]        days     of     [the
seller's]       acceptance"         of    the    offer.         The    lease    contingency
further       provided    that      if    Alexander      &    Bishop     were       "unable    to
negotiate a lease or leases," Alexander & Bishop could terminate
the offer.
        ¶14    Because Alexander & Bishop was unable to negotiate an
acceptable lease within the specified timeframe, it exercised
its right to terminate the offer.
        ¶15    Later on, however, Ash Park and Alexander & Bishop

signed an agreement to reinstate the offer.
        ¶16    Alexander       &    Bishop      did     not   exercise        its    right    to
terminate the reinstated offer.                       Alexander & Bishop's offer to
                                                 4
                                                                     No.     2013AP1532



purchase    Ash     Park's    land       ripened       into   a   binding    purchase
contract on September 20, 2007.
      ¶17   On October 9, 2007, Alexander & Bishop informed Ash
Park that the party with whom it had been negotiating a lease
was   not    interested       in      immediately        leasing    the     property.
Accordingly, Ash Park and Alexander & Bishop discussed potential
modifications to the purchase contract.                   Their negotiations were
unsuccessful.
      ¶18   The closing of the sale, which had been scheduled for
December    14,    2007,    did    not    take    place.      Alexander      &    Bishop
failed to purchase the property.
      ¶19   Shortly after the date that had been set for closing,

Ash Park sued Alexander & Bishop, seeking specific performance
of the purchase contract.                Ash Park prevailed in the circuit
court, in the court of appeals,3 and in this court.4
      ¶20   Despite the specific performance judgment against it,
Alexander & Bishop failed to pay for or acquire the property.
      ¶21   In     December    2010,      after    protracted       litigation      and
after Alexander & Bishop had threatened bankruptcy, Ash Park and
Alexander & Bishop agreed to settle their dispute.                        Alexander &
Bishop paid Ash Park $1.5 million.                 This sum was equivalent to
Ash   Park's      holding    costs,      that    is,    the   interest      and    other


      3
       Ash Park, LLC v. Alexander & Bishop, Ltd., 2009 WI App 71,
317 Wis. 2d 772, 767 N.W.2d 614.
      4
       Ash Park, LLC v. Alexander & Bishop, Ltd., 2010 WI 44, 324
Wis. 2d 703, 783 N.W.2d 294.



                                           5
                                                                                   No.    2013AP1532



charges      Ash       Park    had    paid     while      it    unsuccessfully           sought    to
compel Alexander & Bishop to purchase the property.5
       ¶22       On January 12, 2011, prior to final adjudication of
the    lawsuit         between       Ash    Park    and    Alexander         &    Bishop,    Re/Max
filed a motion to intervene.
       ¶23       Re/Max       argued       that    Ash     Park        had   entered       into    an
"enforceable contract for the sale of all or any part of the
Property" and thus that under the listing contract, Re/Max had
earned      a    six-percent          broker's      commission.              Re/Max      sought    to
claim its commission, along with prejudgment interests, costs,
and attorney fees.               Re/Max also sought to enforce a broker lien
it had recorded on the property.

       ¶24       Ash    Park     asserted         various       affirmative        defenses       and
moved for summary judgment.                        Re/Max opposed Ash Park's motion
for    summary         judgment       and    filed        its    own     motion     for     summary
judgment.
       ¶25       The    circuit        court       granted       Ash     Park's         motion    for
summary      judgment         and     ordered      Re/Max's       broker         lien    discharged
from       the   property.             The    circuit          court     concluded        that    the
purchase contract between Ash Park and Alexander & Bishop does
not constitute an "enforceable contract" within the meaning of

       5
       Ash Park did not share any portion of this settlement with
Re/Max, and Re/Max does not assert that it is entitled to any
portion of this settlement.       Re/Max acknowledges that the
listing contract grants Re/Max the right to six percent of the
purchase price. Explicitly excluded from the purchase price are
"holding costs."    As explained above, the settlement paid by
Alexander & Bishop amounts to holding costs.



                                                   6
                                                                       No.   2013AP1532



the listing contract between Ash Park and Re/Max.                       Accordingly,
the    circuit         court    determined   that    Re/Max    had     not   earned   a
broker's commission.
       ¶26       The circuit court explained its reasoning as follows:

       This contract is not enforceable.     Now, perhaps we
       don't do a good enough job of defining "enforceable."
       Maybe we should have a phrase called "enforceable in
       law," and maybe that would make sense because I found
       it was enforceable in law, that the case could proceed
       through the court system, but it clearly wasn't
       enforceable in fact.   If it was enforceable in fact,
       Alexander & Bishop would [have bought the land] and
       the realtor would have his commission.       Everybody
       would end up happy. . . .

                 . . . .

       The reality of it is the realtor brought to these
       sellers a buyer who couldn't afford to buy the
       property. . . . [H]e couldn't get financing for it, he
       didn't have enough money in a bank account, he didn't
       have a deep enough pocket to go to, he couldn't do it.
       In the end this contract was not enforceable in fact
       and that's why the contract between these parties
       required it actually be enforceable in fact.
       ¶27       After the circuit court issued its decision, Ash Park
sold the land to Ash Investors, LLC.6
       ¶28       The    court    of   appeals    reversed   the   circuit     court's
summary judgment, holding that the purchase contract between Ash
Park       and    Alexander       &    Bishop    constitutes      an    "enforceable

       6
       Ash Investors, the company that purchased Ash Park's land
after Ash Park settled its dispute with Alexander & Bishop,
filed a motion to intervene (or, in the alternative, to file a
non-party brief) in this court.         The court granted Ash
Investors' motion to intervene, permitting Ash Investors to file
a brief in this court but only on the issue the court had
accepted for review.



                                             7
                                                                   No.    2013AP1532



contract" within the meaning of the listing contract between Ash
Park and Re/Max.        The court of appeals reasoned as follows:

        We conclude the term "enforceable contract" is plain
        and unambiguous.   Given the dictionary definition of
        "enforce" and the principle that an "enforceable
        contract" is one that provides a remedy for a breach,
        it is clear that an "enforceable contract" is one
        where an individual can compel observance of the
        contract by seeking a remedy for a breach.    In this
        case, the contract between Ash Park and Alexander &
        Bishop was enforceable——the contract recognized Ash
        Park's rights under the contract and provided various
        remedies for Ash Park based on Alexander & Bishop's
        breach.7
        ¶29    The   court    of   appeals    cited   the   "law   of    the   case"
doctrine as an additional rationale for its conclusion that the
purchase contract between Ash Park and Alexander & Bishop is
enforceable.         According to the court of appeals, this court's
prior       decision   that    specific      performance    was    a    permissible
remedy for Alexander & Bishop's breach of the purchase contract
settled the issue of the contract's enforceability.                      The court

of appeals explained its reasoning as follows:

        [W]e conclude the law of the case doctrine applies to
        prevent Ash Park from arguing the contract it had with
        Alexander & Bishop was unenforceable. "The law of the
        case doctrine is a 'longstanding rule that a decision
        on a legal issue by an appellate court establishes the
        law of the case, which must be followed in all
        subsequent proceedings in the trial court or on later
        appeal.'" . . . .

               . . .



        7
            Ash Park, 356 Wis. 2d 249, ¶15.



                                          8
                                                                  No.    2013AP1532


     [T]he specific performance remedy Ash Park sought and
     received for Alexander & Bishop's breach in this case
     was available only if the parties had an enforceable
     contract.   Based on the specific performance judgment
     Ash Park sought and received in this case, Ash Park
     cannot now argue its contract with Alexander & Bishop
     was unenforceable.8
     ¶30     We granted Ash Park's petition for review of the court
of appeals' decision, limiting our review to the question of
whether the purchase contract between Ash Park and Alexander &
Bishop constitutes an "enforceable contract" under the listing
contract     between    Ash    Park   and     Re/Max,   such   that     Re/Max   is
entitled to a broker's commission.
                                       II
     ¶31     This      court    reviews       summary    judgment       decisions

independently, applying the same standards and methods as the
circuit court.9     Summary judgment is appropriate when there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law.10
     ¶32     In the instant case, the parties do not dispute the
facts.     Rather, the parties dispute whether as a matter of law
Re/Max is entitled to a broker's commission.                   This issue turns
on whether the purchase contract between Ash Park and Alexander


     8
          Id., ¶¶19-20 (citations omitted).
     9
       Roehl Transport, Inc. v. Liberty Mut. Ins. Co., 2010 WI
49, ¶25, 325 Wis. 2d 56, 784 N.W.2d 542.
     10
       Wis. Stat. § 802.08(2) (2011-12).        All subsequent
references to the Wisconsin Statutes are to the 2011-12 version
unless otherwise indicated.



                                          9
                                                                          No.   2013AP1532



&     Bishop    constitutes     an    "enforceable         contract"        within     the
meaning of the listing contract between Ash Park and Re/Max.
The interpretation of a contract presents a question of law that
this court decides independently of the circuit court and court
of appeals but benefiting from their analyses.11
                                          III
        ¶33    To decide whether Re/Max is entitled to a broker's
commission      under     the   listing    contract        between    Ash       Park   and
Re/Max, we must interpret the phrase "enforceable contract" in
the     listing    contract.         Thus,      we    begin    by     reviewing        the
principles of contract interpretation that govern our analysis.
We     then    apply    those   interpretive         principles      to     the   phrase

"enforceable contract" in the listing contract.                             We conclude
that    the    purchase    contract    between       Ash   Park     and    Alexander     &
Bishop constitutes an "enforceable contract" within the meaning
of the listing contract.             Ash Park's arguments to the contrary
are not convincing.
                                           A
        ¶34    The court's goal in interpreting a contract is to give
effect to the parties' intentions.12                 However, "subjective intent




        11
       Tufail v. Midwest Hospitality, LLC, 2013 WI 62, ¶22, 348
Wis. 2d 631, 833 N.W.2d 586; Ehlinger v. Hauser, 2010 WI 54,
¶47, 325 Wis. 2d 287, 785 N.W.2d 328.
        12
       Seitzinger v. Cmty. Health Network, 2004 WI 28, ¶22, 270
Wis. 2d 1, 676 N.W.2d 426.



                                          10
                                                                            No.       2013AP1532



is not the be-all and end-all."13                       The language of the contract
controls the court's interpretation.14
       ¶35    When        the    terms        of    a     contract        are     clear       and
unambiguous, we construe the contract's language according to
its    literal      meaning.15          "We    presume      the   parties'           intent   is
evidenced      by    the        words    they       choose,     if   those        words       are
unambiguous."16
       ¶36    When the terms of a contract are ambiguous, however,
evidence      extrinsic         to    the     contract     itself     may       be    used     to
determine      the   parties'         intent,       and   any   remaining        ambiguities
will be construed against the drafter.17                        "A contract provision
is    ambiguous      if    it    is     fairly      susceptible      of    more       than    one

construction."18
       ¶37    Contract language is construed according to its plain
or ordinary meaning,19 consistent with "what a reasonable person


       13
       Kernz v. J.L. French Corp., 2003 WI App 140, ¶9, 266
Wis. 2d 124, 667 N.W.2d 751.
       14
            Seitzinger, 270 Wis. 2d 1, ¶22.
       15
       Maryland Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶23,
326 Wis. 2d 300, 786 N.W.2d 15 (quoting Gorton v. Hostak, Henzl
& Bichler, S.C., 217 Wis. 2d 493, 506, 577 N.W.2d 617 (1998)).
       16
            Kernz, 266 Wis. 2d 124, ¶9.
       17
            Maryland Arms, 326 Wis. 2d 300, ¶23.
       18
       Mgm't Computer Servs., Inc. v. Hawkins, Ash, Baptie &
Co., 206 Wis. 2d 158, 177, 557 N.W.2d 67 (1996).
       19
       Huml v. Vlazny, 2006 WI 87, ¶52, 293 Wis. 2d 169, 716
N.W.2d 807.



                                               11
                                                                          No.     2013AP1532



would understand the words to mean under the circumstances."20
Language in a business contract is construed in the manner in
which it would be understood "by persons in the business to
which        the    contract    relates."21             Interpretations         that    give
reasonable          meaning    to    each       provision    in    the    contract      are
preferred          over   interpretations        that    render    a    portion    of    the
contract superfluous.22
        ¶38    Ultimately,          the    court's       role     "is    not     to     make
contracts or          reform   them       but    to   determine    what    the     parties
contracted to do."23            "It is not the function of the court to
relieve a party to a freely negotiated contract of the burdens




        20
             Seitzinger, 270 Wis. 2d 1, ¶22.
        21
       Columbia Propane, L.P. v. Wis. Gas Co., 2003 WI 38, ¶12,
261 Wis. 2d 70, 661 N.W.2d 776.
        22
       Sonday v. Dave Kohel Agency, Inc., 2006 WI 92, ¶21, 293
Wis. 2d 458, 718 N.W.2d 631.
        23
       Marion v. Orson's Camera Centers, Inc., 29 Wis. 2d 339,
345, 138 N.W.2d 733 (1966) (quoting Wis. Marine & Fire Ins. Co.
Bank v. Wilkin, 95 Wis. 111, 115, 69 N.W. 354 (1896)).

     See also 11 Richard A. Lord, Williston on Contracts § 32:2
(4th ed. 2002) ("Courts often recite that they cannot make a new
contract for the parties, but can only enforce the contract to
which the parties themselves have agreed, and if the contract
contains unambiguous language, the parties are bound by its
plain meaning.").



                                                12
                                                                   No.    2013AP1532



of a provision which becomes more onerous than had originally
been anticipated."24
      ¶39   We    now   apply   these     interpretive     principles         to   the
contract language at issue.
                                        B
      ¶40   The section of the listing contract between Ash Park
and   Re/Max     that   discusses   the      seller's    obligation      to    pay   a
broker's    commission     contains     five   clauses     that    delineate       the
circumstances      under    which     Ash      Park     shall     pay    Re/Max      a
commission.       It provides the following alternative conditions
under which a commission shall be earned:

      COMMSSION: Seller shall pay Broker's commission, which
      shall be earned if, during the term of this Listing:

      1) Seller sells or accepts an offer which creates an
      enforceable contract for the sale of all or any part
      of the Property;

      2) Seller grants an option to purchase all or any part
      of the Property which is subsequently exercised;

      3) Seller exchanges or enters into a binding exchange
      agreement on all or any part of the Property;

      4) A transaction occurs which causes an effective
      change in ownership or control of all or any part of
      the Property; or

      24
       25 Lord, supra note 23, § 1:1.        See also E. Allan
Farnsworth, 2 Farnsworth on Contracts § 5.1, at 1 (3rd ed. 2004)
("[F]reedom of contract rests on the premise that it is in the
public interest to accord individuals broad powers to order
their affairs through legally enforceable agreements.         In
general, therefore, parties are free to make such agreements as
they wish, and courts will enforce them without passing on their
substance.").



                                        13
                                                                       No.        2013AP1532


        5) A purchaser is procured for the Property by Broker,
        by Seller, or by any other person, at the price and on
        substantially the same terms set forth in this Listing
        and in the standard provisions of the current WB-13
        VACANT LAND OFFER TO PURCHASE, even if Seller does not
        accept this purchaser's offer. . . .
(Emphasis added.)
        ¶41   The listing contract goes on to define "procured" for
purposes of the fifth clause set forth above:

        A purchaser is procured when a valid and binding
        contract of sale is entered into between the Seller
        and the purchaser or when a ready, willing and able
        purchaser submits a written offer at the price and on
        substantially the terms specified in this listing.
(Emphasis added).
        ¶42   The   listing       contact     does     not    define        the     phrase
"enforceable contract," which appears in the first clause, and
the parties dispute its meaning.
        ¶43   Our    interpretation          of      the     phrase        "enforceable
contract" begins, as it must, with the ordinary meaning of the
phrase.
        ¶44   In everyday language, "enforceable" means capable of
being    enforced.        A   contract      is    "enforceable"       if     it    can   be

enforced.
        ¶45   A   party   seeks    to   "enforce"      a   contract        by   going    to
court to obtain a remedy for the contract's breach.                                A court
"enforces" a contract by issuing a judgment that grants a remedy




                                         14
                                                                          No.    2013AP1532



for the contract's breach.25                Consequently, a reasonable person
would consider a contract "enforceable" so long as a party to
the   contract         can   go    to    court    and     obtain   a    remedy    for    the
contract's breach.
      ¶46       This     ordinary          interpretation          of      the      phrase
"enforceable contract" comports with the phrase's legal meaning.
"Enforceable contracts are those for which the law recognizes
the parties' rights and protects those rights by providing a
remedy for breach, usually either some measure of damages or
specific        performance."26           Calamari      and   Perillo     on     Contracts
explains that a contract is said to be enforceable "[w]hen a
promisee is entitled to either a money judgment, an injunction

or specific performance because of a breach [by the promisor]."27
      ¶47       The    converse     is   also     true:    "Unenforceable        contracts
are those that, because of some valid defense . . . , lack the
remedy     of    specific         performance     or    damages    in    the     event    of

      25
       "In most contract cases, what is sought is enforcement of
a contract. Enforcement usually takes the form of an award of a
sum of money due under the contract or as damages. . . .       A
court may also enforce a promise by ordering that it be
specifically performed or, in the alternative, by enjoining its
non-performance." Restatement (Second) of Contracts § 345, cmt.
b (1981).     See also 1 E. Allan Farnsworth, Farnsworth on
Contracts § 1.1, at 4 (3d ed. 2004) (explaining that a contract
is "a promise, or a set of promises, that the law will
enforce").
      26
       1 Michael B. Apfeld et al., Contract Law in Wisconsin
§ 1.22 (4th ed. 2013).
      27
       Joseph M. Perillo,                 Calamari      and   Perillo     on     Contracts
§ 1:8(b) (7th ed. 2014).



                                             15
                                                                          No.     2013AP1532



breach . . . ."28 Put more simply, "[a]n unenforceable contract
is one for the breach of which neither the remedy of damages nor
the remedy of specific performance is available . . . ."29
      ¶48    Nothing       in    the     record        reveals     that     the        phrase
"enforceable contract" has a meaning in the real estate business
that is different from its ordinary and legal meaning.
      ¶49    As we explained previously, Alexander & Bishop failed
to purchase Ash Park's land as it had contracted to do, and Ash
Park sought the remedy of specific performance for Alexander &
Bishop's      breach.           The     circuit        court     issued     a        specific
performance judgment against Alexander & Bishop that was upheld
by the court of appeals30 and by this court.31
      ¶50    Because      Ash    Park     was     indisputably       able       to     compel
observance     of    the      purchase     contract        it     entered       into    with
Alexander     &     Bishop      by     seeking     a     remedy     (namely          specific
performance) for a breach, the purchase contract falls within
the   ordinary      and    legal       meaning    of     the     phrase     "enforceable
contract."          Indeed,     in     upholding        the     specific    performance

      28
           1 Apfeld et al., supra note 26, § 1.22.
      29
       25 Lord, supra note 23, § 1:21. See also Perillo, supra
note 27, § 1:8(b) ("Unenforceable contracts are those which have
some legal consequences but which may not be enforced in an
action for damages or specific performance in the face of
certain defenses . . . ." (Emphasis added.)).
      30
        Ash Park, LLC v. Alexander & Bishop, Ltd., 2009 WI App
71, 317 Wis. 2d 772, 767 N.W.2d 614.
      31
       Ash Park, LLC v. Alexander & Bishop, Ltd., 2010 WI 44,
324 Wis. 2d 703, 783 N.W.2d 294.



                                           16
                                                                            No.       2013AP1532



judgment against Alexander & Bishop, this court made clear that
the purchase contract between Ash Park and Alexander & Bishop is
enforceable.32
       ¶51        In   the   instant      case,   Ash   Park    asks     the      court      to
interpret          the    phrase       "enforceable     contract"        in       a     manner
inconsistent with the phrase's ordinary and legal meaning and
inconsistent with this court's previous decision to enforce the
purchase contract between Ash Park and Alexander & Bishop.                                   We
decline to accept this invitation.
       ¶52        We   conclude    that    the    purchase     contract       between       Ash
Park        and    Alexander       &    Bishop     constitutes      an       "enforceable
contract" within the meaning of the listing contract between Ash

Park and Re/Max.             It has already been enforced.
                                              C
       ¶53        Ash Park sets forth two primary counterarguments: (1)
because       Alexander       &   Bishop   was    not   compelled      to     satisfy       the
specific performance judgment against it, the purchase contract
is, as a matter of fact, not enforceable; and (2) requiring Ash
Park to pay a broker's commission when the sale to Alexander &
Bishop was never consummated would be contrary to public policy.

       32
       In upholding the specific performance judgment against
Alexander & Bishop, this court distinguished Henrikson v.
Henrikson, 143 Wis. 314, 127 N.W. 962 (1910), in which "there
was no valid and enforceable contract to transfer land."     Ash
Park, 324 Wis. 2d 703, ¶44. The court explained that Henrikson
was not controlling in the Ash Park case because Henrikson "does
not address the remedies available to a seller when the buyer
breaches an enforceable contract for the sale of land."     Id.,
¶44.



                                             17
                                                                                     No.        2013AP1532



        ¶54    We address these counterarguments in turn.
                                                    (1)
        ¶55    First,         Ash      Park    contends          that    the    court           system's
inability         to        successfully            compel         Alexander          &         Bishop's
performance means the purchase contract between Ash Park and
Alexander & Bishop is not enforceable.                              Ash Park grounds this
argument        on     an     unconvincing            interpretation            of     the        phrase
"enforceable          contract"         and    on    a    comparison       of    the        first       and
fifth clauses of the listing contract's commission section.
        ¶56    Relying on the reasoning of the circuit court, Ash
Park     argues        that     the      phrase      "enforceable          contract"             in     the
listing contract is ambiguous.

        ¶57    According          to    Ash     Park,      one    meaning       of    "enforceable
contract"       is     a    contract          enforceable        "in    fact."             Under       this
interpretation of the phrase, a contract is enforceable only if
a breaching party can be forced to perform.
        ¶58    Another        meaning         of    "enforceable        contract,"           says       Ash
Park,     is     a      contract         enforceable         "in        law."          Under           this
interpretation of the phrase, a contract is enforceable if a
remedy is available for a breach.
        ¶59    Ash      Park        contends        that    the     former       interpretation
(under        which     a     contract         is     "enforceable"            only        if     it    is
enforceable "in fact") is the better one.                               Ash Park reminds the
court that ambiguities in a contract are construed against the

drafter (here, Re/Max).
        ¶60    Ash         Park        also         contends        that        its         preferred
interpretation comports with the expectations of a reasonable
                                                    18
                                                                               No.    2013AP1532



seller.     In Ash Park's view, a reasonable seller who signs a
listing contract never intends to incur an obligation to pay a
broker's commission when the listed property is not actually
sold, that is, when the seller does not receive the purchase
price from a buyer.             A seller who enters into a listing contract
does not intend to be in debt for a commission when no transfer
of the property has taken place.
     ¶61     Next,    Ash       Park     asserts        that    construing       the    phrase
"enforceable contract" to mean a contract that is enforceable
"in law" would render the fifth clause of the commission section
of the listing contract superfluous.
     ¶62     The    fifth       clause      of    the     commission        section     of    the

listing contract entitles Re/Max to a commission if Ash Park
enters a "valid and binding contract" for the sale of the land.
According    to     Ash    Park,       if   the       court    interprets       "enforceable
contract"    to     mean    a    contract         enforceable         "in    law,"     then    no
difference        exists    between         the       phrases       "valid      and    binding
contract" and "enforceable contract."                          To give meaning to both
the first and fifth clauses of the commission section of the
listing     contract,       Ash     Park         asserts       that    the     court    should
interpret the phrase "enforceable contract" to mean a contract
enforceable "in fact."
     ¶63     We      decline           to        adopt        Ash      Park's         proffered
interpretation of the phrase "enforceable contract."

     ¶64     Ash     Park's       argument         that       the     phrase    "enforceable
contract" is ambiguous confuses the issue of enforceability of a
contract with the concept of satisfaction of a judgment.                                      The
                                                 19
                                                                                 No.    2013AP1532



enforceability of a contract turns on whether there is a remedy
available for a breach, not on whether a judgment issued in
response to a breach is satisfied.
      ¶65    There     is    no   distinction            in   the    law    or    in    ordinary
language between the enforceability of a contract "in law" and
"in   fact."         Nor     does       the    listing         contract      draw        such     a
distinction:         The listing contract states that Ash Park shall
pay Re/Max a broker's commission if Ash Park enters into an
enforceable       contract        for      the      sale       of the       land,        not     an
enforceable in fact contract for the sale of the land.
      ¶66    We     will    not   read     words     into      the       contract       that    the
parties     opted    not    to    include.          Rather,         we   apply     contractual

language as it is written.                    This court's role, after all, is
"not to make [the] contract[] . . . but to determine what the
parties contracted to do."33
      ¶67    Further,            despite           Ash        Park's         protestations,
interpreting        the     phrase      "enforceable           contract"           to    mean     a
contract enforceable "in law" does not render the fifth clause
of    the    commission          section      of     the      listing       contract           mere
surplusage.
      ¶68    The phrases "valid and binding" and "enforceable" have
been interpreted in varied and sometimes overlapping ways in




      33
           Tufail, 348 Wis. 2d 631, ¶29.



                                              20
                                                                               No.    2013AP1532



contract law.34 Nevertheless, the phrases are not synonymous in
the legal literature.
        ¶69     As one commentator has explained, a contract is "valid
and binding" if "all of the elements of contract formation have
been    satisfied          and     there    are    no     fundamental     defenses      to    the
enforcement of the contract, such as the statute of frauds."35
Because       the    phrase        "'valid       and     binding'    relates     to    contract
formation,          []     'enforceable'          must     mean     something    else.       Most
lawyers        believe           that    the      term     'enforceable'        implies       the
existence of a remedy for breach, such as an action at law for
damages."36
        ¶70     In sum, our interpretation of the phrase "enforceable

contract" within the listing contract——the issue raised in the
petition       for       review——comports          with     the    phrase's     ordinary      and
legal        meaning       and    does     not    render     the     "valid     and    binding"
portion       of     the    listing        contract       superfluous.          We    therefore
reject Ash Park's alternative interpretation of the contractual
language       and       conclude       that     the    failure     of   Ash   Park    and    the
courts to successfully compel Alexander & Bishop's performance

        34
        "Some authorities distinguish among the concepts of
legal, valid, binding, and enforceable." Gregory G. Gosfield, A
Primer in Real Estate Options, 35 Real Prop. Prob. & Tr. J. 129,
137 n.10 (2000) (discussing the differences between these
words).
        35
       Laurence G. Preble, The Remedies Opinion Revisited: A
Primer for Real Estate Lawyers, 33 Real Prop. Prob. & Tr. J. 63,
68 (1998).
        36
             Id., 70-71.



                                                  21
                                                                     No.    2013AP1532



does    not   mean     the    purchase      contract     between     Ash    Park     and
Alexander & Bishop was not enforceable.
                                            (2)
       ¶71    Ash    Park's    second       primary     counterargument      to     the
determination of the court of appeals and this court that Re/Max
is entitled to a commission is that requiring Ash Park to pay a
commission      when    the    sale    to    Alexander     &    Bishop     was     never
consummated would be contrary to public policy.                      There are two
components to this argument.
       ¶72    First,   Ash    Park     urges      the   court   to   recognize      the
practical      consequences       of     requiring       it     to   pay     Re/Max's
commission in the instant case.                   Ash Park did not profit from

the purchase contract it entered into with Alexander & Bishop
despite its attempts to enforce that contract,37 and Ash Park
will now pay $378,000 out of pocket to Re/Max as a commission.
Had Ash Park declined to enforce the purchase contract, it would
have retained a portion of the earnest money and would not be
paying $378,000 out of pocket.38


       37
       Ash Park did not earn a profit by settling with Alexander
& Bishop. As previously explained, the $1.5 million settlement
Alexander & Bishop paid to Ash Park reflected Ash Park's costs
for maintaining the property during the time the purchase
contract was being litigated.
       38
       The earnest money provision of the listing contract
provides that if the sale "fails to close and the earnest money
is disbursed to Seller, then . . . the earnest money shall be
paid first to reimburse Broker for cash advances . . . and one
half of the balance, but not in excess of the agreed commission,
shall be paid to Broker as Broker's full commission . . . ."



                                            22
                                                                                    No.    2013AP1532



      ¶73     Thus,        Ash        Park     contends            that        "[t]he       natural
consequence of this decision is that innocent sellers face a
Hobson's choice: try to enforce the contract as the law allows
or abdicate these legal rights lest the realtor claim hundreds
of thousands of dollars in commission."
      ¶74     Second,        Ash        Park       contends             that        this    court's
interpretation of the phrase "enforceable contract" defies the
purpose of the listing contract, which is to effectuate a sale
of the property by employing a broker to locate a buyer.39                                        Ash
Park states: "Suddenly the realtor is no longer the servant of
the   seller;       the    seller       becomes            the   servant       of    the   realtor.
Nothing      in   this     contract          discloses           such     a    counterintuitive

understanding."
      ¶75     Ash Park's frustration is understandable.                                    Ash Park
has   done    its     best       to    effectuate            the   sale        of    its   land    to
Alexander & Bishop.              Ash Park agrees that had Alexander & Bishop
paid for the property (as it was required by law to do), then
Re/Max      would     be    entitled         to        a    broker's       commission.            But
Alexander & Bishop did not pay, and Ash Park did not receive the
benefit of its purchase contract.                            If Ash Park is required to
pay a commission to Re/Max under these circumstances, what will
it be paying for?            In Ash Park's view, Re/Max procured "a buyer




      39
       Harvey   L.  Temkin   et  al.,   Commercial  Real   Estate
Transactions in Wisconsin, § 2.3 (2010) (explaining that under a
listing contract, "a seller hires a broker to find a buyer").



                                                  23
                                                                         No.    2013AP1532



unable        to    perform"       and       thus     "supplie[d]         nothing      of
value . . . ."
        ¶76    The result in the instant case does seem harsh to Ash
Park.        But the result would be harsh to Re/Max were we to hold
in Ash Park's favor.
        ¶77    Re/Max     did   what   it    agreed   to   do    under    the    listing
contract.          Upon   Re/Max's       listing     the   property,      Alexander     &
Bishop made an offer for more than the listing price and Ash
Park accepted that offer, creating an enforceable contract for
the sale of the property.                Because an enforceable contract for
the sale of the property was created, Re/Max earned a commission
under the listing contract.               Declining to order Ash Park to pay

Re/Max       its   commission     is   not    only    contrary    to     the    contract
language; it is also unfair to Re/Max, which expended efforts to
locate a buyer.
        ¶78    By asking the court to disregard the contract language
to achieve what it views as a fairer result, Ash Park in effect
asks us to relieve "a party to a freely negotiated contract of
the burdens of a provision which becomes more onerous than had
originally been anticipated."40               As we explained previously, this
is not the court's role.41

        40
             25 Lord, supra note 23, § 1:1.
        41
       The court's role "is not to make contracts or reform them
but [rather] to determine what the parties contracted to do."
Marion v. Orson's Camera Ctrs., Inc., 29 Wis. 2d 339, 345, 138
N.W.2d 733 (1966) (quoting Wis. Marine & Fire Ins. Co. Bank v.
Wilkin, 95 Wis. 111, 115, 69 N.W. 354 (1897)).



                                             24
                                                                       No.    2013AP1532



      ¶79     Ash Park also overlooks the fact that it had the power
to    condition    Re/Max's        right   to     receive       a   commission     upon
consummation of the sale.
      ¶80     Ash Park and Re/Max used the listing contract prepared
and approved by Wisconsin's Real Estate Examining Board (REEB).42
REEB-approved listing contracts can be modified; their terms are
not set in stone.          Existing provisions can be changed or deleted
and additional provisions can be appended.43
      ¶81     Ash Park could have negotiated with Re/Max to modify
the terms of the commission section of the listing contract by
conditioning Re/Max's right to a commission on consummation of
the   sale.       Indeed,     one    commentator        has    advised:      "To   avoid

incurring a commission without a closing, the seller's lawyer
should consider modifying the language in [the listing contract]
so that the commission is not earned until the conveyance of the
property actually closes and title passes."44
      ¶82     This court cannot disregard contract terms that Ash
Park belatedly decides are unacceptable.
      ¶83     Finally,     Wisconsin       case    law        demonstrates     that   a
broker's commission is not ordinarily contingent upon the sale's
consummation.


      42
       Wis.       Admin.    Code    § REEB      16.03    (May       2014)    ("Approved
forms").
      43
       Wis. Admin. Code § REEB 16.06 (May 2014) ("How to use
prepared forms").
      44
           See Temkin et al., supra note 39, § 2.20.



                                           25
                                                                      No.    2013AP1532



       ¶84    This court has previously declared that a broker is
entitled to a commission if the broker identifies a buyer and
the buyer and seller enter into an enforceable contract for the
sale of the property, even if the sale fails to close.45
       ¶85    In   Wauwatosa     Realty      Co.    v.   Paar,     274    Wis. 7,   79
N.W.2d 125 (1956), a buyer procured by the broker entered into a
purchase      contract    with   the      seller.        The     buyer    refused    to
purchase the property.           The listing contract did not condition
payment of the broker's commission on final consummation of the
transaction.        Accordingly,       the     Wauwatosa    Realty       court   stated
that    the   broker     was   entitled      to    its   commission      despite    the
buyer's default:         "[T]he broker's right to his commission is not

defeated by a subsequent default on the [buyer's] part unless


       45
       Scott C. Minter & Debra Peterson Conrad, Wisconsin Real
Estate Law 5-19 (2014); John L. Horwich et al., Real Estate
Transactions System § 1.8c (5th ed. 2011). See also Winston v.
Minkin, 63 Wis. 2d 46, 51, 216 N.W.2d 38 (1974); Wauwatosa
Realty Co. v. Paar, 274 Wis. 7, 14-15, 79 N.W.2d 125 (1956);
McDermott v. Mahoney, 115 N.W. 32, 36-37 (1908).

       See Minter & Conrad, supra, at 5-17.

     The listing contract can provide that the broker will not
earn a commission unless the sale closes. See, e.g., Mansfield
v. Smith, 88 Wis. 2d 575, 586-89, 277 N.W.2d 740 (1979) (general
rule that seller owes broker commission if seller enters
contract with buyer, even if buyer later defaults, was not
applicable per a liquidated damages clause); Walter Kassuba,
Inc. v. Bauch, 38 Wis. 2d 648, 158 N.W.2d 387 (1968) (listing
contract provided for payment of a broker's commission if the
property "is sold," which in the circuit court's view meant the
sale had to be completed; this court remanded the cause to the
circuit court to determine what the parties intended the words
"is sold" to mean in the case at hand).



                                          26
                                                                  No.    2013AP1532



[the    seller's]     promise   to     the    broker   is   expressed      to    be
conditioned upon such actual performance by the [buyer]. . . ."46
       ¶86   The court reached a similar conclusion in Kruger v.
Wesner, 274 Wis. 40, 44, 79 N.W.2d 354 (1956).                   In Kruger, the
contract between the seller and the broker provided that the
broker would procure a buyer.           The broker procured a buyer, and
the buyer and seller entered into a purchase contract.                          The
buyer breached the purchase contract.               Because the sale was not
consummated, the seller refused to pay the broker's commission.
       ¶87   The   Kruger    court,    like   the   Wauwatosa    Realty     court,
determined     that    the    broker    was    entitled     to    a     commission
notwithstanding the buyer's breach.            The Kruger court explained:

       The courts are practically unanimous in holding that a
       broker employed to sell [] lands earns his commission,
       unless the contract [between the broker and seller]
       contains a stipulation to the contrary, when a [buyer]
       and the [seller] enter into a valid and binding
       contract for the sale . . . of [the] lands.47

       46
       Wauwatosa Realty Co. v. Paar, 274 Wis. 7, 13-15, 15-16,
79 N.W.2d 125 (1956) (quoting Restatement (First) of Agency
§ 445 (1933)).
       47
       Kruger v. Wesner, 274 Wis. 40, 44, 79 N.W.2d 354 (1956).
Kruger followed the reasoning of the Oregon Supreme Court in
Oregon Home Builders v. Montgomery Investment Co., 184 P. 487,
492 (1919), which held as follows:

       [T]he literally overwhelming weight of authority is
       that, unless the [seller] and broker have stipulated
       to the contrary, the broker has fully earned his
       commission when the [buyer] and [seller] enter into a
       valid and binding contract for the sale or exchange of
       lands, and the broker's right to recover a commission
       is not, in the absence of bad faith upon his part,
       defeated or even affected by the fact that it
                                                       (continued)
                                        27
                                                                    No.   2013AP1532



      ¶88    Subsequent cases have repeated the rule set forth in
Wauwatosa Realty and Kruger.48
      ¶89    With this precedent in mind, a commentator has written
that it is settled law in Wisconsin "that if the buyer's valid
written offer is accepted so as to constitute an enforceable
contract, then the owner must pay [the] commission even if the
buyer later defaults."49
      ¶90    The    result    in        the    instant   case   comports        with
precedent.
      ¶91    In sum, Ash Park's counterarguments do not persuade us
to depart from the ordinary and legal meaning of the phrase
"enforceable contract" in the listing contract between Ash Park

and   Re/Max.        Under    the       listing    contract,    a    contract     is
"enforceable" if a remedy is available for a breach.                      Thus, to
determine whether the purchase contract between Ash Park and
Alexander     &    Bishop    is    an    "enforceable    contract,"       we    need
determine only whether a remedy is available for a breach.




      subsequently develops that the [buyer] is unable to
      complete his contract to buy on account of financial
      inability or is unable to complete the contract to
      exchange on account of inability to transfer a
      merchantable title.
      48
         See, e.g., Mansfield v. Smith, 88 Wis. 2d 575, 585-87,
277 N.W.2d 740 (1979); Winston v. Minkin, 63 Wis. 2d 46, 52, 216
N.W.2d 38 (1974).     See also Hercules v. Robedeaux, Inc., 110
Wis. 2d 369, 374-76, 329 N.W.2d 240 (Ct. App. 1982).
      49
           Minter & Conrad, supra note 45, at 5-19.



                                          28
                                                                                No.       2013AP1532



       ¶92     A remedy is indisputably available for a breach of the
purchase       contract    between         Ash        Park   and     Alexander        &    Bishop.
Indeed, Ash Park has already obtained the remedy of specific
performance for Alexander & Bishop's breach.
       ¶93     In    response     to       the    sole       issue    presented           for   our
review, we therefore conclude that the purchase contract between
Ash    Park    and    Alexander        &   Bishop       constitutes        an      "enforceable
contract" within the meaning of the listing contract between Ash
Park and Re/Max.           Re/Max is entitled to a broker's commission
from    Ash    Park     even    though       Alexander         &     Bishop     breached        the
purchase contract and the sale was never consummated.
       ¶94     Accordingly, we affirm the decision of the court of

appeals.       The cause is remanded to the circuit court for entry
of summary judgment in favor of Re/Max; for a determination and
award of Re/Max's prejudgment interest, costs, and attorney's
fees; and for a determination of whether Re/Max's broker lien
should be reinstated.
       By     the    Court.—The    decision            of    the   court      of      appeals    is
affirmed.
       ¶95     DAVID T. PROSSER, J., did not participate.




                                                 29
                                                                                No.    2013AP1532.pdr


        ¶96    PATIENCE        DRAKE       ROGGENSACK,            C.J.    (concurring).             The
majority opinion sets the question upon which Re/Max Select,
LLC's entitlement to a broker's commission turns as:                                         "whether
the purchase contract between Ash Park and Alexander & Bishop
constitutes an 'enforceable contract' within the meaning of the
listing contract."1            I would phrase the question to be decided as
follows:           whether the listing contract between Re/Max and Ash
Park,       LLC,    two    sophisticated           business         entities,         demonstrates
that they agreed that closing on a sale of the listed property

was   not     required        before       the    right      to    a     realtor's        commission
arose.        I answer that question, "yes."                       However, because I have
grave       concerns      about      the     majority        opinion          being       erroneously
employed       to     shift     the    burden          to    investigate            the    financial
ability       of     a     proposed        purchaser         from        the     broker        to    an
unsophisticated seller, I write in concurrence to the majority
opinion.
                                       I.     BACKGROUND

        ¶97    The majority opinion fully sets out the facts that
underlie the dispute before us.                          Therefore, I will not repeat
them.
                                       II.       DISCUSSION
                                A.     Standard of Review
        ¶98    This       review   centers         on    interpreting           and       applying    a
single       party    listing      contract            for   the       sale    of     vacant    land.
Interpretation of a written contract is a question of law that


        1
            Majority op., ¶32.


                                                   1
                                                                     No.    2013AP1532.pdr


we review independently of the court of appeals and the circuit
court     while     benefitting         from       their     discussions.        Anthony
Gagliano & Co. v. Openfirst, LLC, 2014 WI 65, ¶32, 355 Wis. 2d
258, 850 N.W.2d 845.
                       B.   Listing Contract Principles
        ¶99   There   are   two    lines       of    cases    that   run    on   somewhat
parallel, but different, tracks when the right to a commission
is alleged to arise out of a real estate listing contract.                              One
line of cases conditions the right to a commission on the broker

procuring      a    purchaser     who    is        "ready,   willing,      and   able    to
purchase upon the terms specified by the owner in the brokerage
contract."         Grinde v. Chipman, 175 Wis. 376, 377, 185 N.W. 288

(1921).       "Able" includes the purchaser's "financial ability to
proceed."      Peter M. Chalik & Assocs. v. Hermes, 56 Wis. 2d 151,
160, 201 N.W.2d 514 (1972).              We have reasoned that:

             Generally speaking, a purchaser is financially
        ready and able to buy: (1) If he has the needed cash
        in hand, or (2) if he is personally possessed of
        assets——which in part may consist of the property to
        be purchased——and a credit rating which enable him
        with reasonable certainty to command the requisite
        funds at the required time, or (3) if he has
        definitely arranged to raise the necessary money——or
        as much thereof as he is unable to supply personally——
        by obtaining a binding commitment for a loan to him
        for that purpose by a financially able third party,
        irrespective of whether such loan be secured in part
        by the property to be purchased.
Id. at 162 (internal quotation marks and citation omitted).
        ¶100 Therefore, not just any purchaser who signs an offer
to purchase on terms acceptable to the seller will fulfill the
criteria necessary for a broker to earn a commission.                              Stated


                                               2
                                                                    No.    2013AP1532.pdr


otherwise, when a purchaser is unable to perform financially,
the seller has a defense to payment of a commission.                              Id. at
162-63.
      ¶101 The     other   line   of     cases   is     cited   in        the    majority
opinion.      Those cases generally conclude that the right to a
commission turns on whether the realtor provided a party who
entered into a binding contract to purchase the real estate.
For example, in       Wauwatosa Realty Co. v. Paar, 274 Wis. 7, 79
N.W.2d 125 (1956), we upheld the right to a commission for the

broker even though the sale of the real estate never closed.                           We
reasoned that:

            The right of a broker to compensation accrues on
      completion of negotiations and on a meeting of the
      minds of the principal and the customer procured by
      the broker; but, unless provided otherwise in the
      contract of employment, it is not dependent on the
      final    consummation  of   the  transaction  or   the
      performance of the agreement entered into between the
      principal and the customer.
Id. at 14-15.
      ¶102 The above quote from Wauwatosa Realty is interesting

because we began our discussion in Wauwatosa Realty by saying
that, "[t]he question involved on this appeal is whether the
plaintiff     real-estate       broker       procured     a     purchaser         ready,
willing,     and   able    to   purchase      the     defendants'         real     estate
pursuant to the terms of its listing contract so as to entitle
the plaintiff to a broker's commission."                  Id. at 10.            However,
we   never    assessed     whether     the    purchaser       had     the       financial
ability to complete the purchase contract.



                                         3
                                                                          No.    2013AP1532.pdr


        ¶103 In     Kruger       v.    Wesner,      274    Wis.    40,     79     N.W.2d     354
(1956), where no sale occurred, we concluded that the realtor
was due a commission, and we opined that:

              It may be generally stated that when a real-
        estate broker procures a purchaser who is accepted by
        the owner, and a valid contract is drawn up between
        them, the commission for finding such purchaser is
        earned, although the purchaser later defaults for no
        known   reason   . . .;   or  because  the   purchaser
        deliberately refuses to consummate the contract . . .;
        or because of financial inability of purchaser to
        comply with the contract.
Id. at 44 (emphasis added).
        ¶104 The         emphasized      part       of     the     above        quote   is    a
significant departure from the line of cases that requires a
purchaser to be financially "able" to complete the sale before a
commission is due the broker.                   See, e.g., Chalik, 56 Wis. 2d at

163.        Yet, in Kruger, we gave no indication that we were intent
on     changing     prior       law.         Rather,      Kruger    appears        to   be    an
extension of Wauwatosa Realty upon which Kruger says that it
relies.2       Kruger, 274 Wis. at 44.
        ¶105 In Winston v. Minkin, 63 Wis. 2d 46, 216 N.W.2d 38
(1974),       we   set    out    the   dispositive        issue     as,    "[w]hether        the
plaintiff procured a buyer ready, willing and able to purchase
upon the terms specified by the owner in the listing contract or
acceptable         to    him."         Id.     at   49.          However,       once    again,
notwithstanding our statement of the issue, we reasoned that

        2
       I note that Justice Steinle wrote both the opinion in
Wauwatosa Realty Co. v. Paar, 274 Wis. 7, 79 N.W.2d 125 (1956)
and the opinion in Kruger v. Wesner, 274 Wis. 40, 79 N.W.2d 354
(1956).


                                                4
                                                                           No.   2013AP1532.pdr


"when a real estate broker procures a purchaser and a valid and
enforceable contract is entered into between them the commission
for procuring a purchaser is earned, even though the purchaser
may later default."               Id. at 51.         Accordingly, we followed the
change noted above in Kruger, even though we continued to give
lip service to the "ready, willing and able" language of the
earlier cases.        Stated otherwise, Winston continued to shift the
responsibility        to    investigate          the    financial          ability    of     the
proposed purchaser from the broker to the seller.

     ¶106 Why        did    we    make    this      change?      It    appears        that    in
Kruger,    we    concluded             that   the      seller    had        a    "reasonable

opportunity to investigate" the purchaser's financial ability to
proceed, and if the seller needed additional assurances of the
purchaser being "able" to close on the sale, it was the seller's
obligation      to    obtain       whatever         assurances       he      needed    before
entering into a binding contract with him.                       See Kruger, 274 Wis.
at 45.

     ¶107 Imposing           the        responsibility          to     investigate           the
financial ability of a proposed purchaser onto a sophisticated
seller    may   have       been    a    sufficient      reason       for    this     shift    of
responsibility from the broker to the seller.                              However, I have
grave doubts that this shift in responsibility is fair to the
unsophisticated seller of real estate, who signs a standard form
listing contract believing he or she will pay any commission due
under the listing contract from the proceeds of a sale that the
broker facilitates.



                                              5
                                                             No.   2013AP1532.pdr


                  C.   Re/Max–Ash Park Listing Contract
      ¶108 Re/Max's claim comes from the listing contract that
Ash Park signed.        In regard to Re/Max's right to a commission,
the listing contract provides in relevant part:

      COMMISSION:       Seller shall       pay Broker's commission,
      which shall      be earned if,       during the term of this
      Listing:

      1) Seller sells or accepts an offer which creates an
      enforceable contract for the sale of all or any part
      of the Property;

      . . . .

      5) A purchaser is procured for the Property by Broker,
      by Seller, or by any other person, at the price and on
      substantially the same terms set forth in this Listing
      and in the standard provisions of the current WB-13
      VACANT LAND OFFER TO PURCHASE, even if Seller does not
      accept this purchaser's offer.

      . . . .

      PROCURE:   A purchaser is procured when a valid and
      binding contract of sale is entered into between the
      Seller and the purchaser or when a ready, willing and
      able purchaser submits a written offer at the price
      and on substantially the terms specified in this
      Listing. A purchaser is ready, willing and able when
      the purchaser submitting the written offer has the
      ability to complete the purchaser's obligations under
      the written offer.
(emphasis added).
      ¶109 Re/Max asserts that pursuant to the listing contract,
the   Ash   Park—Alexander      &   Bishop   contract   is    an   enforceable
contract entitling it to a commission under conditions 1 and 5
above, and that it has "procured" a purchaser because Ash Park
and Alexander & Bishop entered into a binding contract for the
purchase    of   the   listed   real   estate.    The   listing     contract's

                                       6
                                                                   No.    2013AP1532.pdr


definition of "procuring," which includes providing a purchaser
who is "ready, willing and able" to complete the sale is an
alternative to, not an addition to, entering into an enforceable
contract.    Therefore, under the listing contract, the right to a
commission ripens when an enforceable contract is entered into,
even   if   the   purchaser    is    financially       unable     to     complete   the
purchase.        In sum, the listing contract sets a condition for
earning a commission as follows:                whether Ash Park and Alexander
& Bishop entered into an enforceable contract.

       ¶110 By     our    decision     affirming        an    order      of    specific
performance of the Ash Park-Alexander & Bishop sales contract,
we previously concluded that their contract is an enforceable
contract.     Ash Park, LLC v. Alexander & Bishop, Ltd., 2010 WI

44, ¶96, 324 Wis. 2d 703, 783 N.W.2d 294.                     Accordingly, I have
no     trouble     concluding        that       the    same      contract       remains
"enforceable"      when   we   are    interpreting       the     listing       contract.
However, I have concerns about having the enforceability of the

purchase contract be the end of our discussion.
       ¶111 Those    concerns       arise       here   because    of     the    circuit
court's finding that Alexander & Bishop was financially unable




                                            7
                                                                      No.       2013AP1532.pdr


to perform,3 and because of representations that Ash Park settled
its lawsuit against Alexander & Bishop because of Alexander &
Bishop's insolvency.4             However, of greater concern to me is the
unsophisticated seller of real estate who may not understand the
import of the provisions of the WB-13 listing contract as it
affects his or her obligation to pay a real estate commission.
     ¶112 Here,       Ash    Park    is     a       sophisticated     business       entity,
represented     by    able       counsel,       with    the   ability      and     knowledge
needed to investigate the financial wherewithal of Alexander &

Bishop    or   to    request      modification          of    a   listing   contract       to
require   closing      on    a    sale    before       the    right   to    a    commission
arises.    That weighs in favor of affirming the court of appeals.

     3
       "The reality of it is the realtor brought to these
     sellers a buyer who couldn't afford to buy the
     property. And in the end it was the buyer's inability
     to be able to buy the property, he couldn't get
     financing for it, he didn't have enough money in a
     bank account, he didn't have a deep enough pocket to
     go to, he couldn't do it."

Transcript of Motion Hearing at 14, Ash Park, LLC v. Alexander &
Bishop, Ltd., No. 07CV2832 (Brown Cnty. Cir. Ct., June 13,
2011).
     4
       Alexander & Bishop represented:      "Ash Park and its
principal is aware that Alexander & Bishop has no liquid assets
in which to specifically perform——that is why it accepted the
settlement agreement which called for a $1.2 million dollar
payment to be made by the way of a loan. [] It also received
numerous letters from Banks demonstrating that they would not be
willing to loan money to Alexander & Bishop to buy the
property."

Brief in Opposition of Motions for Contempt and Appointment of a
Receiver and in Support of Motion to Enforce Settlement
Agreement at 6-7, Ash Park, LLC v. Alexander & Bishop, Ltd., No.
07CV2832 (Brown Cnty. Cir. Ct., Feb. 14, 2011).


                                                8
                                                                             No.   2013AP1532.pdr


       ¶113 However, because I have concerns for the residential
homeowner who lists his or her property using a standard form
listing contract, without the aid of an attorney, and is unaware
that    he   or    she    may    be     incurring           an       obligation     to     pay      a
commission when no sale occurs, I write in concurrence to draw
attention to the potential hardship our decision is capable of
producing if it is erroneously applied in a different context to
an unsophisticated seller of real estate.
                                  III.       CONCLUSION

       ¶114 Because       the    question         to    be       decided      occurs      in    the
context of a listing contract between two sophisticated business
entities,       Re/Max   and     Ash    Park,      I    conclude          that     the    listing
contract demonstrates that they agreed that closing on a sale of
the    listed     property      was    not   required            before      the   right       to   a
realtor's       commission      arose.        However,           I    have    grave      concerns
about the majority opinion being erroneously employed to shift
the burden to investigate the financial ability of a proposed

purchaser       from     the     broker       to       an    unsophisticated             seller.
Therefore, I write in concurrence to the majority opinion.




                                              9
    No.   2013AP1532.pdr




1
