                                                                2018 WI 112

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2016AP601
COMPLETE TITLE:         Midwest Neurosciences Associates, LLC and
                        Neurosurgery and Endovascular Associates, SC,
                                  Plaintiffs-Appellants,
                             v.
                        Great Lakes Neurosurgical Associates, LLC and
                        Yashdip Pannu, M.D.,
                                  Defendants-Respondents-Petitioners.

                            REVIEW OF DECISION OF THE COURT OF APPEALS
                           Reported at 379 Wis. 2d 766, 909 N.W.2d 209
                                       (2018 – unpublished)

OPINION FILED:          December 19, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 10, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Ozaukee
   JUDGE:               Paul V. Malloy

JUSTICES:
   CONCURRED:           ABRAHAMSON, J. concurs.
   DISSENTED:           R.G. BRADLEY, J. dissents.
   NOT PARTICIPATING:   DALLET, J. did not participate.

ATTORNEYS:


       For        the   defendants-respondents-petitioners,    there   were
briefs filed by Joan M. Huffman, Paul R. Erickson, and Gutglass,
Erickson, Bonville & Larson, S.C., Milwaukee.             There was an oral
argument by Joan M. Huffman.


       For the plaintiffs-appellants, there was a brief filed by
Frank M. Gumina, Patrick M. Harvey, and Husch Blackwell LLP,
Milwaukee.          There was an oral argument by Patrick M. Harvey.
                                                                         2018 WI 112
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.       2016AP601
(L.C. No.    2015CV324)

STATE OF WISCONSIN                             :             IN SUPREME COURT

Midwest Neurosciences Associates, LLC and
Neurosurgery and Endovascular Associates, SC,

              Plaintiffs-Appellants,                                   FILED
      v.                                                          DEC 19, 2018
Great Lakes Neurosurgical Associates, LLC and                        Sheila T. Reiff
Yashdip Pannu, M.D.,                                              Clerk of Supreme Court


              Defendants-Respondents-Petitioners.




      REVIEW of a decision of the Court of Appeals.                    Reversed and

cause remanded.


      ¶1      ANNETTE KINGSLAND ZIEGLER, J.            This is a review of an

unpublished         decision   of     the   court      of     appeals,        Midwest

Neurosciences Assocs., LLC v. Great Lakes Neurosurgical Assocs.,

LLC, No. 2016AP601, unpublished slip op. (Wis. Ct. App. Dec. 20,

2017), reversing the Ozaukee County circuit court's1 non-final

order.        The     non-final     order   denied     Midwest       Neurosciences

Associates, LLC ("Midwest") and Neurosurgery and Endovascular

      1
          The Honorable Paul V. Malloy presided.
                                                                             No.        2016AP601



Associates S.C.'s ("NEA") motion to stay this action and compel

arbitration      pursuant     to    the     Amended        and    Restated          Operating

Agreement       ("Operating    Agreement"),           as    well       as     the       circuit

court's granting of Yashdip Pannu, M.D. ("Dr. Pannu") and Great

Lakes Neurosurgical Associates, LLC's ("Great Lakes") motion for

declaratory judgment seeking a declaration that the Membership

Interest    Redemption      Agreement       ("Redemption          Agreement")             was   a

valid contract.          The court of appeals remanded to the circuit

court   with     instructions      to   grant        Midwest's     motion          to    compel

arbitration pursuant to the Operating Agreement.                            We reverse the

court of appeals and remand to the circuit court to determine

whether the Redemption Agreement is enforceable.

    ¶2      The crux of the issue before us concerns the circuit

court's     role    in    determining        the      proper      forum       of        dispute

resolution when a subsequent contract, if enforceable, does not

contain    an    arbitration       clause       as   is    present      in     an       initial

contract.       As a part of that analysis we consider whether a

contract    which    contains      a    merger       clause      and   which        does     not
contain an arbitration clause can change the forum of dispute

resolution when a prior agreement between the parties contains

an arbitration clause.2             The parties make competing arguments

    2
       The parties disagree as to whether the Redemption
Agreement was validly formed. The JAMS Arbitration Rules in the
Operating Agreement, however, require that even the issue of
arbitrability be arbitrated. See infra note 7. "JAMS provides
arbitration and mediation services worldwide," including the
creation of rules that can be used to govern the arbitration of
disputes at the parties' agreement.         JAMS Comprehensive
Arbitration Rules & Procedures Rule 1, at 1, 6 (July 1, 2014),
                                                    (continued)
                                            2
                                                                    No.    2016AP601



regarding a court's role in determining the applicability of

this    arbitration       provision.         They   take     contrary     positions

regarding whether all disputes, even arbitrability itself, must

be submitted to arbitration.             The parties present conflicting

views of precedent regarding the judiciary's role in deciding

motions to compel arbitration when a subsequent contract does

not select arbitration as the forum for dispute resolution and

does contain a merger clause which states that the subsequent

agreement     supersedes      all    prior      contracts.       Relatedly,     the

parties dispute whether all parties here can be compelled to

arbitrate when arguably only one co-defendant is contractually

required to arbitrate pursuant to the initial contract.

       ¶3   The claims in the underlying lawsuit that called upon

the court to decide whether the dispute belonged in arbitration,

involve whether Great Lakes and Dr. Pannu violated restrictive

covenants     in    the     Operating        Agreement     and    the     Ancillary

Restrictive        Covenant         Agreement       ("Ancillary         Restrictive

Covenant").     The Redemption Agreement, however, does not contain
an arbitration provision and in fact, purports to release those

restrictive covenants.          Therefore, which contract controls is

seminal in the first instance as to whether arbitration should

be ordered.        Ultimately, regardless of forum, the controlling

documents will also impact the underlying dispute itself.



https://www.jamsadr.com/files/Uploads/Documents/JAMS-Rules/
JAMS_comprehensive_arbitration_rules-2014.pdf.


                                         3
                                                                              No.     2016AP601



      ¶4     The circuit court concluded on summary judgment that

even though the initial agreement, here the Operating Agreement,

required arbitration it was superseded by a later, valid and

enforceable Redemption Agreement which did not so require the

parties to submit to arbitration.                     The court of appeals reversed

and   remanded     with     instructions          to    grant     Midwest's         motion   to

compel arbitration.3

      ¶5     We reverse the court of appeals and conclude that the

fundamental principles of freedom to contract allow parties to a

previous contract to subsequently contract for a different forum

of dispute resolution.             Here, it is necessary that the circuit

court     initially      determine     whether          the   parties        contracted      to

arbitrate.         The     court's    authority          to     order     arbitration        is

dependent     on    the    terms     of   a       contract.          If   the    Redemption

Agreement     is     the    parties'      contract,           then    the     court     lacks

authority to order arbitration.                        Thus, the court must first

ascertain     which        contract       controls        the        forum      of    dispute

resolution.        In sum, we conclude that it is a court's duty to
determine whether a contract calls for arbitration and when a

dispute     exists    as    to   whether          a    second    contract       without      an

arbitration      clause     supersedes        a       first     contract      with    such   a


      3
       Presiding Judge Reilly concurred, expressing concern that
Cirilli v. Country Insurance & Financial Servs., 2009 WI App
167, 322 Wis. 2d 238, 776 N.W.2d 272, and Mortimore v. Merge
Technologies Inc., 2012 WI App 109, 344 Wis. 2d 459, 824 N.W.2d
155, erode freedom of contract and prevent parties from
subsequently contracting out of arbitration.


                                              4
                                                                                No.    2016AP601



clause, the determination of arbitrability must be decided in

the    first        instance    by    the     circuit        court       rather       than    the

arbitrator.

       ¶6      We    also    conclude,      however,         that      the   cause     must    be

remanded to the circuit court, not to compel arbitration as was

ordered       by    the     court    of   appeals,          but    rather,      because       the

parties'       competing       affidavits        submitted        in    support       of     their

positions on summary judgment raised genuine issues of material

fact       concerning      whether    the   Redemption            Agreement      is    a     valid

contract.4         Therefore, we reverse and remand to the circuit court

for further proceedings.


                               I.    FACTUAL BACKGROUND

       ¶7      Dr. Pannu       was    Great      Lakes'       president,        100     percent

owner,       and    sole     practicing     physician.              Arvind      Ahuja,        M.D.

("Dr. Ahuja") was the sole Member of Midwest and later the sole

Member of NEA.            William McCullough, M.D. ("Dr. McCullough") was

the sole Member             of Metro Neurosurgical, S.C. ("Metro").                             In
2015, the three Members of Midwest were NEA, Great Lakes, and

Metro.             The     presidents       of       each     were       also     practicing

neurosurgeons and had offices adjacent to St. Luke's Medical

Center in Milwaukee, Wisconsin.                      The current dispute involves

       4
       We need not weigh in on the host of issues that might
relate to a non-signatory being bound by an arbitration
agreement, such as (1) assumption, (2) agency, (3) estoppel, (4)
veil piercing, and (5) incorporation by reference.    Zurich Am.
Ins. Co. v. Watts Indus., Inc., 417 F.3d 682, 687 (7th Cir.
2005).


                                                 5
                                                                            No.       2016AP601



only       Drs.     Pannu    and      Ahuja     and       the    applicability         of    an

arbitration         provision      from   a     contract        entered   into    a    decade

previous.

       ¶8     Specifically, on August 1, 2005, the parties at issue

executed       an      Operating      Agreement       which      modified    a     previous

operating agreement of August, 2002 so to admit, among others,

Dr.    Pannu      to    Midwest.5         Dr.       Pannu   executed      the     Operating

Agreement as President of Great Lakes and also signed a personal

guaranty for the obligations of Great Lakes.                              The Operating

Agreement contains the arbitration clause at issue.

       ¶9     The Operating Agreement created rights, obligations,

and restrictions for the Members of Midwest and the physicians

that worked for the Members.                        The document includes various

other provisions.            For example, the Operating Agreement controls

how    Midwest      was     to   be   managed       and   operated.       For     instance,

subsection 1.2(a) dictates that Midwest shall have a registered

office      and     subsection        5.5(b)    grants      Midwest's     president         the

power to unilaterally terminate Members.
       ¶10    Section 8.5 of the Operating Agreement grants Members

the right to voluntarily withdraw from Midwest.                            Under Section

8.5, a Member could withdraw from Midwest by "giving written




       5
       Midwest's primary purpose was to assist its Members, who
employed physicians, in "the operation of their medical
practices."


                                                6
                                                     No.   2016AP601



notice to [Midwest] at least ninety (90) days before the stated

effective date of the withdrawal."6

     ¶11   Section 13.3 dictates that the "Operating Agreement

shall be governed by and construed in accordance with the laws

of the State of Wisconsin without regard to its choice of law

provisions."

     ¶12   Section 13.1 of the Operating Agreement provides:

          Amendments to Operating Agreement.  No Amendment
     or modification of this Operating Agreement shall be
     valid unless in writing and signed by all of the
     Members.     Unless otherwise provided in such an
     amendment or modification, this Operating Agreement
     shall be considered to be amended only to the minimal
     extent necessary to give effect to this Operating
     Agreement, and the other terms and conditions of this
     Operating Agreement shall continue to apply with full
     force and effect.
     ¶13   Section 13.7 of the Operating Agreement is entitled

"Arbitration," and states, in pertinent part:

     Arbitration. . . . [T]he   parties  hereto   agree   to
     resolve any and all disputes arising with respect to
     the terms and conditions of this Operating Agreement
     hereby by arbitration . . . .    The arbitration shall
     be governed by the laws of the State of Wisconsin,
     this Operating Agreement and JAMS' Arbitration Rules[7]
     to the extent not inconsistent with the foregoing.

     6
       The provision of notice under Section 8.5 was subject to
the provisions of Section 13.8, which provided that the notice
was "valid only if in writing and upon actual receipt by the
intended recipient of the notice." This provision factors into
the arguments about the Redemption Agreement's enforceability.
     7
       JAMS Arbitration Rule 11, "Interpretation of Rules and
Jurisdictional Challenges," in relevant part, provides:

          (b) Jurisdictional and arbitrability disputes,
     including disputes over the formation, existence,
                                                  (continued)
                                 7
                                                                   No.    2016AP601



     ¶14      Section   8.13   contains     a   "Covenant   Not    to    Compete,"

which    details,      among   other   things,     a   restriction       that   the

doctors practice in their specialty for a designated period of

time, in a specified area, and at particular facilities.8                        On

March    6,    2006,    Dr. Pannu      personally      signed     the    Ancillary

Restrictive Covenant containing similar terms to Section 8.13 of

the Operating Agreement.            The Ancillary Restrictive Covenant,

however, did not specifically incorporate by reference Section

13.7, the arbitration section, of the Operating Agreement.

     ¶15      Nearly ten years later, in 2015, Great Lakes and NEA

were two of three remaining Members of Midwest.                 On February 13,

2015, the Members unanimously voted to dissolve Midwest as of

March 31, 2015.         One doctor relocated out of state and is not

part of this lawsuit.9         Dr. Ahuja, who had no hospital privileges

in the Milwaukee area, had previously announced his intention to

vacate his practice from the offices.




     validity, interpretation or scope of the agreement
     under which Arbitration is sought, and who are proper
     Parties to the Arbitration, shall be submitted to and
     ruled on by the Arbitrator.     The Arbitrator has the
     authority to determine jurisdiction and arbitrability
     issues as a preliminary matter.

JAMS Comprehensive Arbitration Rules & Procedures Rule 11(b),
supra note 2, at 14.
     8
       The underlying litigation in this case claims that Great
Lakes and Dr. Pannu violated non-compete restrictive covenants.
     9
         Dr. McCullough moved to Texas and vacated the offices.


                                        8
                                                                           No.    2016AP601



      ¶16    On    March    16,       2015,        the    Members    restructured       the

dissolution process such that NEA would buy out the Members'

interests in Midwest.            Great Lakes would vacate the premises no

later than May 15, 2015.               Great Lakes, however, was subject to

the non-compete provisions of the Operating Agreement.                                After

discussing the logistics of how the purchases would work, the

Members     unanimously       voted      to    rescind       the    vote   to    dissolve

Midwest.10

      ¶17    On March 30, 2015, Midwest's attorney sent an e-mail

to    Dr. Pannu,      Dr. Ahuja,         and        Great     Lakes'    and      Midwest's

accountants       attaching      a    "proposed          [Redemption    Agreement]     and

[an] Assignment Agreement" which concerned, in part, the release

of the non-compete provision with Midwest.                           The recipients of

the   e-mail      were   instructed           to    ask     any    questions     at   their

"earliest opportunity" because "we intend to exchange funds and

sign documents tomorrow."               On March 31, 2015, in response to a

suggestion     from      Great       Lakes'    accountant,          Midwest's    attorney

added one paragraph to the Redemption Agreement and confirmed


      10
       NEA's offer to buy the other Members' interests came in
response to the Members being advised that there were unforeseen
difficulties with winding down Midwest related to expenses and
lease obligations.   Prior to voting, the Members had a lengthy
discussion regarding retirement plans and lease obligations.
With respect to the retirement plans, it was determined that
actuarial calculations would be done to determine how much
Dr. Pannu and Dr. McCullough would pay.     In addition, it was
agreed that Midwest's accountant would calculate the projected
wind-down expense budget for Midwest and that Dr. Pannu and
Dr. McCullough would pay their projected wind-down expenses
based on that budget.


                                               9
                                                                               No.     2016AP601



that his assistant had sent the "the final agreement."                                  The e-

mail also contained the following instructions: "Please sign and

deliver per my earlier email."11

     ¶18    On    the    same    day,    Dr. Pannu         executed       the        Redemption

Agreement    and        the   accompanying          Assignment           Agreement12        and

delivered them to Midwest's attorney.                      The Redemption Agreement

distinguishes      Great        Lakes    from       Dr.     Pannu     as       "Pannu"      and

"Y. Pannu," respectively, and also notes that it is Great Lakes,

"Pannu", that holds a one-third membership interest in Midwest.

     ¶19    The    Redemption        Agreement           outlines    Great       Lakes      and

Midwest's   desire       to   "set      forth      the    terms     upon    which       [Great

Lakes] will sell and [Midwest] will redeem [Great Lakes'] entire

Membership Interest" in Midwest.                    For instance, the Redemption

Agreement   indicates         that   Great        Lakes    "desires       to     voluntarily

surrender    [Great       Lakes']       membership         in     [Midwest]          effective

March 31,    2015,       pursuant       to   Section        8.5     of     the       Operating


     11
       Great Lakes and Dr. Pannu assert that Midwest's attorney
was acting as both Midwest's and NEA's attorney when he
circulated the Redemption Agreement. They allege that this does
not create a conflict of interest because Dr. Ahuja cannot
approve the transaction with respect to Midwest, while rejecting
the same transaction with respect to NEA.      Midwest and NEA,
however, allege that if Midwest's attorney "was representing
Midwest, he could not also represent NEA" because Great Lakes
was still a Member of Midwest.    It is not necessary for us to
answer this disagreement.
     12
       The Assignment Agreement states that, as of March 31,
2015,   Great    Lakes   "transfer[red]   and   assign[ed]   to
[Midwest] . . . all of [Great Lakes'] right, title and interest
in and to the Membership Interests."


                                             10
                                                                          No.    2016AP601



Agreement," and Section 2 of the Redemption Agreement dictates

that Great Lakes "shall sell, assign and transfer to [Midwest],

free    and     clear        of     all    liens,     claims,        agreements         and

encumbrances,      and     [Midwest]       shall    purchase      and    acquire     from

[Great Lakes], the entire Membership Interest."                         The Redemption

Agreement       outlines       the     purchase      price     for      Great     Lakes'

membership interest and specifically identified and allocated to

Great Lakes the amount that it was required to pay to Midwest

for its share of the costs associated with winding down Midwest,

as well as requiring Great Lakes to pay a set amount relating to

retirement      plans.        The    Redemption     Agreement      also    establishes

that    Great    Lakes       must    "fully      vacate"    its   office        suite   by

April 30, 2015.

       ¶20    Section    6    of     the   Redemption      Agreement      is    entitled,

"Mutual Release," and provides:

       [Midwest] Releasees [, defined as "[Midwest] and each
       of [Midwest's] Members and the Members' shareholders,
       members,    owners,    successors,    assigns,    agents,
       directors,    officers,    employees,    representatives,
       attorneys, heirs, executors and administrators of such
       of the foregoing as are natural persons, and all
       persons acting by, through, under or in concert with
       any of the foregoing,] hereby jointly and severally,
       irrevocably and unconditionally release, acquit and
       forever discharge [Great Lakes and Dr. Pannu] and each
       of [Great Lakes'] shareholders, members, owners,
       successors, assigns, agents, directors, officers,
       employees,     representatives,     attorneys,     heirs,
       executors and administrators of such of the foregoing
       as are natural persons, and all persons acting by,
       through, under or in concert with any of the foregoing
       (collectively, "Pannu Releasees"), or any of them,
       from any and all Claims[, defined as charges,
       complaints,     claims,     liabilities,     obligations,
       promises, agreements, controversies, damages, actions,

                                            11
                                                                       No.    2016AP601


      causes of action, suits, rights, demands, costs,
      losses, debts and expenses (including attorneys' fees
      and costs actually incurred), known and unknown, of
      any nature whatsoever, including without limitation,
      any   and  all  claims   under  the  Expense  Sharing
      Agreement, the Operating Agreement, and any and all
      other claims, whether at common law, in contract or
      tort,] which [Midwest] Releasees now have or claim to
      have or which [Midwest] Releasees at any time
      heretofore had or claimed to have or which [Midwest]
      Releasees at any time hereafter may have or claim to
      have for any claims arising or accruing to the date
      hereof against each or any of the Pannu Releasees,
      other than for a breach of this Agreement. (Emphases
      added.)
      ¶21   Section      7    of    the    Redemption    Agreement,       "Release   of

Non-Compete Restrictions," states: "[Great Lakes and Dr. Pannu]

are currently subject to non-compete restrictions contained in

the   Operating    Agreement          and    in    the    [Ancillary      Restrictive

Covenant].    In consideration for the terms of this Agreement,

[Great Lakes and Dr. Pannu's] restrictions against competition

are hereby released and made void."

      ¶22   Section 10.3 of the Redemption Agreement, "Applicable

Law," does not reference arbitration, nor does an arbitration

clause exist elsewhere in the Redemption Agreement.                           Section

10.3 reads: "All questions concerning the construction, validity

and interpretation of this Agreement and the performance of the

obligations imposed by this Agreement shall be governed by the

internal    law,   not       the    law     of    conflicts,   of   the      State   of

Wisconsin."

      ¶23   According to Dr. Pannu's affidavit, he and Great Lakes

had   performed    all       of    their    obligations    under    the    Redemption
Agreement other than moving out of their office by April 8,


                                            12
                                                                 No.    2016AP601



2015.       For instance, Dr. Pannu said he delivered a check for

Great       Lakes'   share     of   the   wind-down   expenses   to    Midwest's

attorney and hand-delivered a check for Great Lakes' retirement

plan    contributions         to    Midwest's    accounting   firm.      It   is

undisputed that one of Great Lakes' checks was cashed.13

       ¶24     On April 8, 2015, Dr. Pannu attempted to get a copy of

the Redemption Agreement as signed by Dr. Ahuja.                      Initially,

Dr. Pannu exchanged text messages with Dr. Ahuja:

       Dr. Pannu:            Hi
                             Can u get me a copy of the
                             [Redemption Agreement] signed by you
                             Thx

       Dr. Ahuja:            Will work on it when I am back
                             ? Anything up

       Dr. Pannu:            No
                             Attorney wants it
                             So it is clean

       Dr. Ahuja:            Yea and it appears not going to
                             let us out of lease
                             But I will take care of it

       Dr. Pannu:            Ok

       Dr. Ahuja:            ? Who is your lawyer thx

       Dr. Pannu:            [Lawyer's name]14

       13
       According to Dr. Ahuja's affidavit, the check was cashed
in error by a clerical employee and a cashier's check in the
same amount was sent to Dr. Pannu once the error was discovered.
       14
       The attorney that            Dr. Pannu named clarified on the record
at a motion hearing on               December 17, 2015, that he "was not
involved in this" prior              to April 8, 2015, and had not been
"copied on anything . . .           prior to that."


                                          13
                                                                           No.      2016AP601




       Dr. Ahuja:          K great
       ¶25    Further,     within    ten    minutes     of   sending          the    initial

text message, Dr. Pannu sent an e-mail to Midwest's attorney,

and    carbon     copied   Dr.    Ahuja     and    Midwest's       and    Great       Lakes'

accountants, asking Midwest's attorney to "let [him] know when

you    get    a   signed   copy     of    the   agreement     from       [Dr.       Ahuja]."

Midwest's attorney responded that he would meet with Dr. Ahuja

to get his signature "[a]s soon as all of the documentation is

accounted for."15

       ¶26    According     to    Dr.     Ahuja's    affidavit,          he    (and     thus

Midwest and NEA) never agreed to the terms of the Redemption

Agreement.           Initially,     Dr.    Ahuja    said     he    never       instructed

Midwest's attorney to include a complete release of Great Lakes'

or    Dr. Pannu's        non-compete       obligations        in     the       Redemption

Agreement and that Dr. Ahuja in fact disagreed with releasing

the restrictions.           Further, Dr. Ahuja stated that during an

April 20, 2015 phone call with Dr. Pannu, he told Dr. Pannu that

he    was    still    reviewing     the    Redemption      Agreement.            Moreover,
Dr. Ahuja stated that once he had more thoroughly reviewed the

Redemption Agreement, he determined he was not willing to sign

it.



       15
        In the e-mail, Midwest's attorney stated that they were
waiting   on  retirement  plan   documents  from  Great  Lakes.
According to Dr. Pannu's affidavit, Great Lakes and Dr. Pannu
had already provided the requested documents to Midwest's
accountant.


                                           14
                                                                      No.    2016AP601



       ¶27       On April 30, 2015, Great Lakes vacated the office and

moved into different office space in the same facility that was

shared with a physician unaffiliated with Midwest.16

       ¶28       In May of 2015, Great Lakes and Dr. Pannu were advised

that Midwest and NEA considered the Redemption Agreement to be a

mere proposal that was subsequently rejected by Midwest and NEA.

Thus, Midwest and NEA alleged that Great Lakes and Dr. Pannu

were     violating       the    non-compete       covenants   in    the     Operating

Agreement and the Ancillary Restrictive Covenant.

       ¶29       On July 1, 2015, Dr. Ahuja, on behalf of Midwest, sent

a letter to Dr. Pannu informing him that Great Lakes' membership

status      in    Midwest   was      being   terminated   effective       immediately

pursuant to Section 5.5(b) of the Operating Agreement.                              The

letter also demanded that Great Lakes and Dr. Pannu comply with

the non-compete restrictions in the Operating Agreement and the

Ancillary Restrictive Covenant.


                               II.    PROCEDURAL POSTURE
       ¶30       On   September      2,   2015,    Midwest    and   NEA     filed     a

complaint against Great Lakes and Dr. Pannu alleging that Great

Lakes and Dr. Pannu breached the non-compete covenants of the




       16
       Great Lakes and Dr. Pannu subsequently moved back into
their old office that was shared with Midwest from June of 2015
to January of 2016, but moved out once more in January of 2016.


                                             15
                                                                         No.   2016AP601



2005    Operating         Agreement   and    the      2006   Ancillary    Restrictive

Covenant.17

       ¶31    Before a responsive pleading was filed, Midwest and

NEA moved to stay the proceedings and compel arbitration in

accordance         with    Section    13.7       of    the    Operating    Agreement.

Midwest and NEA argued that the Operating Agreement was the

governing contract between the parties and that Section 13.7

within      that    agreement    unambiguously          required   the    parties    to

arbitrate violations of Section 8.13 of the Operating Agreement

and the Ancillary Restrictive Covenant.                      Midwest and NEA argued

that the Operating Agreement governed because there was never a

meeting of the minds on the Redemption Agreement, as well as the

fact that the Redemption Agreement was never signed by all of

the parties which was required to amend the Operating Agreement

per Section 13.1.             Further, Midwest and NEA argued that any

challenge to the validity of the Operating Agreement must be

decided by an arbitrator, not the circuit court.

       ¶32    On October 6, 2015, Great Lakes and Dr. Pannu filed an
answer containing affirmative defenses and counterclaims,18 as
       17
       On February 29, 2016, Midwest and NEA filed an amended
complaint, reiterating the causes of action in the initial
complaint and pleading additional causes of action against Great
Lakes and Dr. Pannu related to Great Lakes and Dr. Pannu's
payment of rent to Midwest, as well as Great Lakes and
Dr. Pannu's alleged tortious interference with Midwest and NEA's
prospective and current contractual relationships.
       18
       On February 29, 2016, Great Lakes and Dr. Pannu filed an
amended counterclaim.     On April 15, 2016, Great Lakes and
Dr. Pannu filed an amended answer containing affirmative
defenses and counterclaims.


                                            16
                                                                               No.    2016AP601



well as a motion for declaratory judgment seeking, among other

things, an order declaring that the Redemption Agreement was a

valid contract.          They contended that as of March 31, 2015, the

Operating       Agreement       and    the        non-compete      provisions          of      the

Ancillary       Restrictive       Covenant            were    invalid,     unenforceable,

and/or inapplicable to Great Lakes and Dr. Pannu.                               Great Lakes

and Dr. Pannu argued that the Redemption Agreement is binding

and   released     them     from      the    non-compete          restrictions            in   the

Operating       Agreement       and    the       Ancillary       Restrictive         Covenant.

They argued that the Redemption Agreement was binding because

Midwest     and    NEA      manifested           their       intention     to        sign      the

Redemption Agreement and reaffirmed their intention by allowing

Great    Lakes    and    Dr. Pannu          to    fully       perform    the     obligations

therein.         Accordingly,         the    motion          further    sought       an     order

declaring that Midwest and NEA are not entitled to arbitration.

In subsequent responses, Great Lakes and Dr. Pannu argued that

the circuit court must decide whether the Redemption Agreement

is enforceable and that, at best, it is premature to compel
arbitration because the merits of the case hinge entirely on the

enforceability of the Redemption Agreement, which contains no

arbitration clause and in fact, fully releases them from the

claims asserted.          The parties filed briefs and affidavits in

support of their respective positions.

      ¶33   On December 17, 2015, the circuit court held a hearing

on both motions.          Initially, the circuit court stated that the

motion    for     declaratory         judgment         was    "similar     to     a       summary
judgment    motion"       and    that       "maybe      there[     are]    some"          factual
                                                 17
                                                                          No.    2016AP601



disputes.          Nonetheless, the court found that Dr. Ahuja, through

Midwest's attorney, made an offer that he intended to be bound

by when the e-mail containing the "final agreement" was sent.

Further, the circuit court noted that Dr. Pannu accepted the

offer when he signed the Redemption Agreement and returned it

with the check that was subsequently cashed.                            Moreover, the

circuit court held that the "minor problems" after March 31,

2015, or Dr. Ahuja's "ambiguous" text message to Dr. Pannu on

April 8, 2015, that a reasonable person could view as saying

"I'm   questioning       the    agreement,"       do    not    change     the    analysis

because the Redemption Agreement was already a "done deal" and

the "horse was kind of out of the barn and you can't put it

back."       The circuit court granted Great Lakes and Dr. Pannu's

motion       and    concluded      that   the    Redemption      Agreement        was   an

enforceable contract and thus, that Great Lakes and Dr. Pannu

were not restricted by the covenants not to compete in either

the Operating Agreement or the Ancillary Restrictive Covenant.

       ¶34     On March 16, 2016, the circuit court issued a written
order granting Great Lakes and Dr. Pannu's motion and declaring

that the Redemption Agreement was a valid contract.                             The court

determined that as of March 31, 2015, the Operating Agreement

and    the    non-compete       provisions       of    the    Ancillary    Restrictive

Covenant       were    invalid,     unenforceable        and/or       inapplicable      to

Great Lakes and Dr. Pannu.                The order also denied Midwest and

NEA's motion to stay the action and compel arbitration.

       ¶35     On    March   23,    2016,   Midwest      and    NEA    petitioned       for
leave to appeal the circuit court's March 16 order, which the
                                            18
                                                                        No.    2016AP601



court of appeals granted.                On December 20, 2017, the court of

appeals issued its decision concluding that the "determinative

question is whether the circuit court erred by not ordering the

parties    to    submit     their       dispute     to    arbitration."         Midwest

Neurosciences, No. 2016AP601, ¶8.                       The court of appeals held

"that     the    question     of    whether        the    arbitration      clause   was

superseded should have been submitted to arbitration."                        Id., ¶2.

As such, the court of appeals declined to address the multiple

other issues that Midwest and NEA raised on appeal and reversed

and remanded, instructing the circuit court to grant Midwest and

NEA's motion to compel arbitration.                 Id., ¶¶2, 8, 23.

    ¶36     On     February        5,    2018,     Great     Lakes   and      Dr. Pannu

petitioned this court for review.                   On May 18, 2018, we granted

the petition.       We now reverse and remand the cause for further

proceedings consistent with this opinion.


                            III.    STANDARD OF REVIEW

    ¶37     This    case    comes        to   us   on    summary   judgment.19      "We
review    summary    judgment           rulings    independently,       applying    the


    19
       The circuit court understood Great Lakes and Dr. Pannu's
motion for declaratory judgment to be "similar to a summary
judgment motion" and applied the summary judgment methodology.
Thus, while the motion was entitled a motion for declaratory
judgment, it was actually a motion for summary judgment.    See
WEA Prop. & Cas. Ins. Co. v. Krisik, 2013 WI App 139, ¶¶1, 4
n.2, 8, 352 Wis. 2d 73, 841 N.W.2d 290 (reviewing a motion for
declaratory judgment as a summary judgment motion because the
circuit court understood the motion to "in essence [] be a
motion for summary judgment and applied the summary judgment
methodology").


                                              19
                                                                                 No.    2016AP601



well-established            standards         set    forth    in     Wis.      Stat.    § 802.08
                     20
[(2015-16)]."               Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20,

¶20, 338 Wis. 2d 761, 809 N.W.2d 2d 529.                           Thus, we independently

review      whether        the     circuit      court       correctly         granted    summary

judgment to Great Lakes and Dr. Pannu.                              Tatera v. FMC Corp.,

2010 WI 90, ¶15, 328 Wis. 2d 320, 786 N.W.2d 810 (citing Racine

Cty.     v.    Oracular           Milwaukee,        Inc.,     2010       WI    25,     ¶24,     323

Wis. 2d 682,         781         N.W.2d 88).          Summary        judgment        "shall     be

rendered        if         the         pleadings,       depositions,             answers        to

interrogatories,            and       admissions      on     file,       together      with    the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law."                   Id.; § 802.08(2).

       ¶38    "[A] petition to compel arbitration involves contract

interpretation, which is a question of law that we review de

novo."       First Weber Grp., Inc. v. Synergy Real Estate Grp., LLC,

2015    WI    34,     ¶20,        361    Wis. 2d 496,         860    N.W.2d 498.              Thus,

"determination[s]                of      substantive          arbitrability . . . [are]
questions of law we review de novo."                         Cirilli v. Country Ins. &

Fin.     Servs.,          2009    WI    App    167,     ¶10,       322    Wis. 2d 238,          776

N.W.2d 272.          Similarly, issues of contract interpretation are

reviewed de novo.                Mortimore v. Merge Technologies Inc., 2012 WI

App 109, ¶13, 344 Wis. 2d 459, 824 N.W.2d 155.



       20
       All subsequent references to the Wisconsin Statutes are
to the 2015-16 version unless otherwise indicated.


                                                20
                                                                                No.     2016AP601



                                      IV.     ANALYSIS

                           A.       Fundamental Principles

        1.     Freedom to contract and laws governing arbitration

       ¶39     "Freedom    of       contract        is    based       on     the     idea     that

individuals should have the power to govern their own affairs

without interference."               Solowicz v. Forward Geneva Nat'l, LLC,

2010 WI 20, ¶34, 323 Wis. 2d 556, 780 N.W.2d 111.                               As such, "if

there    is     one    thing       which    more      than         another     public       policy

requires it is that [individuals] of full age and competent

understanding shall have the utmost liberty of contracting, and

that their contracts, when entered into freely and voluntarily,

shall    be     held   sacred,        and     shall      be    enforced        by     courts    of

justice."         Merten      v.    Nathan,     108       Wis. 2d 205,         212     n.5,    321

N.W.2d 173 (1982) (quoting Balt. & Ohio Sw. Ry. Co. v. Voigt,

176     U.S.    498,    505        (1900)).         Thus,          Wisconsin       courts     have

generally sought "to enforce contracts deliberately made by the

parties rather than set them aside."                          Baierl v. McTaggart, 2001

WI 107, ¶12, 245 Wis. 2d 632, 629 N.W.2d 277.
       ¶40     Arbitration         agreements       are       "a    matter     of    contract."

Joint Sch. Dist. No. 10 v. Jefferson Educ. Ass'n, 78 Wis. 2d 94,

101,    253     N.W.2d 536         (1977)     (quoting         United        Steelworkers       v.

Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)); First

Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995).                                      As

such,     "[a]rbitrators           derive     their       authority          only     from     the

parties' advance agreement that they will submit such grievances

to arbitration" and thus, parties cannot be "required to submit
any dispute to arbitration unless [they have] agreed to do so."
                                               21
                                                                              No.      2016AP601



Kimberly Area Sch. Dist. v. Zdanovec, 222 Wis. 2d 27, 39, 586

N.W.2d 41 (Ct. App. 1998) (citing AT&T Technologies, Inc. v.

Commc'ns      Workers    of     America,         475    U.S.    643,    648-49         (1986)).

Parties may contract broadly and agree to arbitrate, even the

issue of arbitrability.              Mortimore, 344 Wis. 2d 459, ¶¶15, 20.

       ¶41    Wisconsin       law     recognizes        the    need    to    defer        to   the

parties' agreement to arbitrate and the "policy of encouraging

arbitration as an alternative to litigation."                          First Weber Grp.,

361 Wis. 2d 496,         ¶24.         When parties agree to arbitration, a

court's role is limited because a different forum of dispute

resolution      has      been        selected.           In     fact,       the     Wisconsin

legislature has codified the limited role of the court.                                         See

Wis.    Stat.    ch.     788.         In    Mortimore,         the    court       of   appeals

explained that when the parties have contracted to arbitrate,

the court's "function is limited to a determination of whether:

(1) there is a construction of the arbitration clause that would

cover   the     grievance       on    its    face       and    (2)    whether       any    other

provision of the contract specifically excludes it."                              Mortimore,
344 Wis. 2d 459, ¶16.

       ¶42    Wisconsin's "policy of encouraging arbitration as an

alternative       to     litigation,"            see      First       Weber       Grp.,         361

Wis. 2d 496,      ¶24,    however,          is    not    limitless.           Even     Midwest

acknowledges that courts typically decide the initial issue of

arbitrability.          "[A]rbitrators           cannot       determine       whether          they

have the authority to decide arbitrability unless the parties

give arbitrators such authority."                      Kimberly Area Sch. Dist., 222
Wis. 2d at 39-40; see generally Joint Sch. Dist. No. 10, 78
                                             22
                                                                          No.    2016AP601



Wis. 2d at 110 (stating that "parties may submit arbitrability

to    an    arbitrator").      "[T]he        evidence     of        this    grant     [of

authority] must be 'clear and unmistakable,'" otherwise, "the

question of whether the parties agreed to arbitrate is to be

decided by the court, not the arbitrator."                     Kimberly Area Sch.

Dist., 222 Wis. 2d at 39-40; see also Kaplan, 514 U.S. at 944-45

("silence       or      ambiguity"      affects         the         presumption        of

arbitrability).

      ¶43    Consequently,    only    those     disputes           that    the    parties

have agreed to so submit to arbitration are relegated to proceed

in that forum.       Granite Rock Co. v. Int'l Bhd. of Teamsters, 561

U.S. 287, 299 (2010).          A court should order arbitration "only

where the court is satisfied that neither the formation of the

parties'     arbitration    agreement    nor    (absent        a    valid       provision

specifically     committing    such     disputes    to        an    arbitrator)       its

enforceability or applicability to the dispute is in issue."

Id. at 299; id. at 300 (stating all of the United States Supreme

Court's opinions compelling arbitration did so only "after the
Court was persuaded that the parties' arbitration agreement was

validly formed and that it covered the dispute in question and

was legally enforceable").

      ¶44    In Granite Rock Co., the Court clarified that "[t]he

test for arbitrability remains whether the parties consented to

arbitrate the dispute in question."             Id. at 304 n.11.                 Thus, in

Granite Rock Co., the Court concluded that judicial resolution

was   required    "to    determine    whether     the    parties          consented    to
arbitrate the matters covered by the [arbitration] demand."                           Id.
                                        23
                                                                            No.       2016AP601



at 303 n.9 & 304 (referencing Buckeye Check Cashing, Inc. v.

Cardegna, 546 U.S. 440, 444 n.1 (2006)).                        This rule stems from

the    "principle           that    underscores         all     of    our    arbitration

decisions: Arbitration is strictly 'a matter of consent,' and

thus   'is      a    way    to     resolve      those    disputes——but       only           those

disputes——that             the     parties       have     agreed      to     submit            to

arbitration.'"           Id. at 299 (citation omitted).

       ¶45   In      answering      both     who     determines      arbitrability            and

what is subject to arbitration, Wisconsin courts apply state-law

contract principles and chapter 788.                      Kaplan, 514 U.S. at 944.

Utilization         of     the     Wisconsin         contract   principles            requires

"courts to place arbitration agreements 'on equal footing with

all other contracts.'"                Kindred Nursing Ctrs. Ltd. P'ship v.

Clark,    581       U.S.    ___,    137    S.    Ct.    1421,    1424,      1426          (2017).

Accordingly, "[a] court may invalidate an arbitration agreement

based on 'generally applicable contract defenses' like fraud or

unconscionability, but not on legal rules that 'apply only to

arbitration or that derive their meaning from the fact that an
agreement to arbitrate is at issue.'"                    Id. at 1426.

       ¶46   Chapter 788 of the Wisconsin Statutes is also referred

to as the "Wisconsin Arbitration Act" and limits a court's role

with     respect      to     issues    concerning         arbitration.            A        court,

however, must still, when called upon to do so, determine in the

first instance whether the parties agreed to arbitrate.                                   Then it

becomes a court's duty to determine whether a contract calls for

arbitration and when a dispute exists as to whether a second
contract     without         an    arbitration         clause   supersedes            a     first
                                                24
                                                                             No.     2016AP601



contract with such a clause, the determination of arbitrability

must    be   decided    in    the    first    instance         by   the     circuit      court

rather than the arbitrator.

       ¶47     Wisconsin      Stat.     § 788.01,           entitled            "Arbitration

clauses      in   contracts     enforceable,"           provides       that      a     written

arbitration        agreement        "shall        be     valid,       irrevocable            and

enforceable       except     upon    such    grounds      as     exist     at    law    or   in

equity for the revocation of any contract" (emphasis added).                                  As

a result, it is a court's duty to determine whether a contract

calls    for      arbitration.        Another          contract      that       clearly      and

expressly supersedes a first contract is "grounds as exist at

law or in equity for the revocation of a contract."

       ¶48     Wisconsin     Stat.    § 788.02         informs      when    a    court    must

stay proceedings to permit arbitration, as follows:

       If any suit or proceeding be brought upon any issue
       referable to arbitration under an agreement in writing
       for such arbitration, the court in which such suit is
       pending, upon being satisfied that the issue involved
       in such suit or proceeding is referable to arbitration
       under such an agreement, shall on application of one
       of the parties stay the trial of the action until such
       arbitration has been had in accordance with the terms
       of the agreement, providing the applicant for the stay
       is not in default in proceeding with such arbitration.
Section 788.03 directs how a court ordering arbitration is to

proceed and states in part as follows:

       The party aggrieved by the alleged failure, neglect or
       refusal of another to perform under a written
       agreement for arbitration may petition any court of
       record having jurisdiction of the parties or of the
       property for an order directing that such arbitration
       proceed as provided for in such agreement. . . . The
       court shall hear the parties, and upon being satisfied

                                             25
                                                                         No.   2016AP601


    that the making of the agreement for arbitration or
    the failure to comply therewith is not in issue, the
    court shall make an order directing the parties to
    proceed to arbitration in accordance with the terms of
    the agreement.
Wis. Stat. § 788.03.

    ¶49     The      court       may,      after     arbitration,         vacate     an

arbitrator's      award     or    order    a     rehearing   by    the    arbitrator,

pursuant to Wis. Stat. § 788.10.                   In addition, the court may,

after arbitration, modify an arbitrator's award pursuant to Wis.

Stat. § 788.11.         Finally, pursuant to Wis. Stat. § 788.12, a
circuit court may enter judgment "[u]pon the granting of an

order     confirming,       modifying       or     correcting      an     award,"    in

conformity therewith.

    ¶50     Thus, when parties have contracted for arbitration as

the forum for dispute resolution, a court's role is limited.                         In

this case, however, the court must first ascertain whether the

controlling       contract       calls    for      arbitration.     Thus,      we   are

presented with the question of the court's role when the parties

once contracted to arbitrate, but the court is presented with a

later   written     contract      that    does     not   contain    an    arbitration

clause.    Fundamental principles clearly militate in favor of the

ability to freely contract, even if that changes the forum of

dispute resolution.            Which contract controls is seminal to a

determination of whether arbitration must be ordered.


                          2.     The contracts at issue

    ¶51     The    contracts       at     issue    require   closer       examination
because    whether    the      parties    entered     into   the    later      contract


                                           26
                                                                             No.        2016AP601



controls    initially        the    court's         determination        regarding           the

proper forum of dispute resolution, but also later may impact

the     underlying       dispute.         If     the    Redemption        Agreement           is

enforceable, its terms do not choose arbitration as the forum

for dispute resolution.             If it is not, the matter must proceed

according     to     the        Operating      Agreement       and       the       Ancillary

Restrictive Covenant.              Thus, it is the court that must first

determine whether a valid contract requires arbitration.                                     The

dispute     regarding       the     Redemption         Agreement        presents          "such

grounds as exist at law or in equity for the revocation of" the

Operating Agreement and Ancillary Restrictive Covenant.                                     Wis.

Stat.    § 788.01.         Before    an     action     can    be      stayed       to    permit

arbitration,       the     court    must       be    "satisfied        that     the       issue

involved in such suit or proceeding is referable to arbitration

under such an agreement."                 Wis. Stat. § 788.02.                 Before the

court can order arbitration, the court must be "satisfied that

the making of the agreement for arbitration or the failure to

comply therewith is not in issue."                   Wis. Stat. § 788.03.
      ¶52   Initially        in     2005,      the     parties        entered       into      an

Operating Agreement which "memorialize[d] certain amendments and

modifications       to    the     Operating      Agreement       of    [Midwest]          dated

August 1, 2002."            This Operating Agreement changed the 2002

contract    to     admit    new     Members      but    it    clearly        provided        for

arbitration in Section 13.7.                The Operating Agreement contained

a   restrictive      covenant       between         Great    Lakes     and     Midwest        in

Section 8.13.        Dr. Pannu and Midwest separately entered into an
Ancillary Restrictive Covenant a year later.                            Then about ten
                                            27
                                                                                      No.     2016AP601



years later, in 2015, the dynamic and composition of the group

changed and the parties purportedly entered into a Redemption

Agreement, which contains a mutual release and indemnification

as   a    part        of    winding      down    the    business,             provides       for    the

surrender of Great Lakes and Dr. Pannu's membership in Midwest,

and releases Great Lakes and Dr. Pannu from the 2005 and 2006

restrictive covenants.                   The Redemption Agreement specifically

supersedes            "all       prior        agreements,             promises,            covenants,

arrangements,              communications,           representations            or     warranties,

whether oral or written" in its merger clause.

         ¶53    A      determination            as     to        whether        the         issue    of

arbitrability is to be submitted to the arbitrator is examined

in   light      of     the      pertinent      contract.              In    order     to    determine

whether the parties have always and forever agreed to arbitrate

arbitrability by virtue of the JAMS Arbitration Rules in the

Operating           Agreement         from     2005,     as       the        court     of     appeals

concluded,          we      must      further        examine          the     language        of    the

contracts.            "[N]o party can be compelled to arbitrate a matter
which     he     or      she    has    not    agreed        to   submit        to    arbitration."

Mortimore,            344       Wis. 2d 459,           ¶15        (citing           Cirilli,        322

Wis. 2d 238, ¶12); see also Wis. Stat. ch. 788.

         ¶54    While a court's role is limited, courts are indeed

called         upon        to   determine        whether          a        contract        calls    for

arbitration.             Wis. Stat. §§ 788.01, 788.02, 788.03.                             Only then,

if the forum chosen by the contract is arbitration, will the

presumption of arbitrability control the dispute.                                     Granite Rock
Co., 561 U.S. at 301.                        Here, serious questions exist as to
                                                 28
                                                                                 No.       2016AP601



whether   the       Operating        Agreement       still       controls       the    issue     of

arbitrability, whether the Redemption Agreement supersedes that

agreement,         and    to    what       extent,     if       any,    one     co-defendant,

Dr. Pannu individually, ever agreed to arbitrate.

    ¶55       We    now     turn      to    the     relevant          contracts       at    issue.

Dr. Pannu signed the 2005 Operating Agreement as President of

Great Lakes, not individually.                       While the Operating Agreement

contains a guaranty signed by Dr. Pannu, it is separate from the

signature page of the Operating Agreement where he signed as

President.         The guaranty and acknowledgement serve to guaranty

the obligations of the signator to the contract, Great Lakes.

If the parties were only contesting the requirement to arbitrate

under   the    Operating         Agreement        alone,        the    court's     role      would

perhaps be different.                See Wis. Stats. ch. 788.                  That, however,

is not the question with which we are presented.

    ¶56       The        parties     demonstrated           a    willingness           to     later

contract in 2006 concerning the individual restrictive covenant,

outlined in the Ancillary Restrictive Covenant, which Dr. Pannu
signed individually as a physician.                         The Ancillary Restrictive

Covenant does not specifically contain an arbitration clause.

Why a subsequent restrictive agreement was necessary in 2006

might be an additional consideration for the court if these were

the only two agreements at issue.                      This is not critical to our

analysis,      however,         because       the      circuit          court     must       first

determine     whether          the    Redemption       Agreement          is    the        parties'

contract.      The Redemption Agreement from a decade later is the
only of the three documents at issue that sets forth by its
                                               29
                                                                              No.     2016AP601



terms the distinct contractual obligations of Great Lakes the

entity, and Dr. Pannu individually.                        The Redemption Agreement

does   not    contain       an   arbitration        provision     and     by        its    terms

supersedes      prior       contracts      and      releases          Great     Lakes        and

Dr. Pannu from the non-compete restrictions.                          These conflicting

written contractual provisions militate against the presumption

of arbitrating arbitrability.              The court is required by chapter

788 of the Wisconsin Statutes to determine whether the contract

calls for arbitration.             In order to do so, it must determine

which is the controlling contract.

       ¶57    A closer examination of the terms of the contracts

further explains why it cannot be assumed that the Operating

Agreement      alone    ends     the   analysis       as    to   arbitration.               Most

typically, a challenge might be made to a contractual clause,

but the court nonetheless orders even that issue to arbitration

because the pertinent contract calls for arbitration.                               Here, the

language of the relevant documents call into question which of

the contracts controls.
       ¶58    The combination of the merger clause in Section 10.2

of   the     Redemption      Agreement,       the    explicit         reference       to     the

Operating Agreement in the "Mutual Release" in Section 6, the

"Applicable      Law"       provision    in      Section      10.3,      and        the     non-

existence      of      an    arbitration        provision        in     the     Redemption

Agreement, make evident that, if enforceable, the parties did

not consent to arbitration in the Redemption Agreement.                                   If the

Redemption Agreement revokes the Operating Agreement, the court
would not order arbitration pursuant to the Operating Agreement.
                                           30
                                                                                   No.     2016AP601



       ¶59     Section        10.2    utilizes        different         capitalization           to

denote "this Agreement" (referring to the Redemption Agreement)

and     "the    entire        agreement,"         calling        into     question         whether

Midwest,       Great    Lakes,       and    Dr.     Pannu    intended         the    Redemption

Agreement to revoke the Operating Agreement.                                  The Redemption

Agreement,       unlike        the    Operating       Agreement         or    the        Ancillary

Restrictive       Covenant,          addresses      the     relationship           between      all

three.

       ¶60     For example, the merger clause in Section 10.2 states

that     "[t]his       Agreement"          (meaning       the     Redemption         Agreement)

constitutes        the        "entire       agreement"          between       the        "parties"

(meaning Great Lakes, Dr. Pannu, and Midwest)21 "pertaining to

its     subject        matter"       and     that     it        "supersedes          all     prior

agreements,       promises,          covenants,      arrangements,           communications,

representations,          or    warranties,         whether        oral      or    written,      by

[Great       Lakes]      or     [Midwest]."                 It     "expressly            negatives

collateral or antecedent understandings."                          See Town Bank v. City

Real Estate Dev., LLC, 2010 WI 134, ¶39, 330 Wis. 2d 340, 793
N.W.2d 476 (defining a merger clause as a "written provision

which        expressly           negatives           collateral              or       antecedent

understandings").              No     reference      is     made    to       the    Arbitration

section of the Operating Agreement.




       21
       Dr. Ahuja was only designated as a party "for purposes of
the Mutual Releases and Indemnification set forth in Sections 6
and 8," not Section 10.2.


                                               31
                                                                               No.     2016AP601



       ¶61     Furthermore, Section 6 of the Redemption Agreement by

its terms is to "release, acquit and forever discharge" Great

Lakes and Dr. Pannu from "any and all" "charges, complaints,

claims,        liabilities,            obligations,          promises,          agreements,

controversies,          damages,         actions,     causes       of     action,       suits,

rights,      demands,      costs,      losses,      debts    and    expenses"          of   "any

nature       whatsoever"         under     "the     Operating       Agreement."             The

obligation or promise to "resolve any and all disputes arising

with    respect     to     the    terms      and    conditions      of    this       Operating

Agreement . . . by             arbitration"         seemingly      fits        within       this

release.        See     Town     Bank,     330     Wis. 2d 340,         ¶46   (refusing       to

require contract drafters to "expressly identify and exclude in

their contracts any prior oral or written communication between

the parties that may rise to the level of an agreement").

       ¶62     In addition, the "Applicable Law" provisions in each

of   the     agreements     are       different.       The     Operating        Agreement's

"Applicable        Law"      provision           provides     that       the         "Operating

Agreement shall be governed by and construed in accordance with
the laws of the State of Wisconsin without regard to its choice

of law provisions."               The arbitration clause in the Operating

Agreement specifically incorporates the JAMS Arbitration Rules

which      state    that       "disputes      over     the    formation,             existence,

validity, interpretation or scope of the agreement under which

Arbitration        is    sought,       and    who    are     proper      Parties       to   the

Arbitration,        shall        be   submitted       to     and   ruled        on     by   the

Arbitrator" (emphases added).                      JAMS Comprehensive Arbitration
Rules      &    Procedures,           Rule       11(b),      14    (July        1,      2014),
                                              32
                                                                    No.    2016AP601



https://www.jamsadr.com/files/Uploads/Documents/JAMS-Rules/JAMS_

comprehensive_arbitration_rules-2014.pdf.

     ¶63   The     Applicable    Law       section    in      the     Redemption

Agreement, on the other hand, is quite different.                    It contains

no   arbitration      clause    and    states    that      "[a]ll         questions

concerning the construction, validity and interpretation of this

Agreement and the performance of the obligations imposed by this

Agreement shall be governed by the internal law, not the law of

conflicts, of the State of Wisconsin" (emphases added).                     Simply

stated, the applicable law and forum selection in one contract

is very different from the other.

     ¶64   Therefore, the Redemption Agreement, if enforceable,

supersedes by its very language the Operating Agreement's mode

of adjudication, including its incorporation of JAMS Arbitration

Rules that granted the authority to the arbitrator to determine

arbitrability.     See Thomas W. Ward & Assoc., Inc. v. Spinks, 574

So. 2d 169, 170 (Fla. Dist. Ct. App. 1990) (per curiam) (holding

"the trial court cannot leave it to the arbitrators themselves
to determine which claims are subject to arbitration when it has

not established which agreement applies").

     ¶65   Due   to   the   foregoing,      Midwest     and   NEA     failed     to

demonstrate "clear and unmistakable" intent to arbitrate.                    Riley

Mfg. Co. v. Anchor Glass Container Corp., 157 F.3d 775, 780-81

(10th Cir. 1998).       Thus, the question of whether the parties

agreed to arbitrate must, in this instance, be decided by the

circuit court.     See Wis. Stat. ch. 788; see also Riley Mfg. Co.,
157 F.3d at 780-81 (holding "the existence of the merger clause
                                      33
                                                                  No.     2016AP601



in the Settlement Agreement [in combination with the lack of

arbitration clause] raises at least an ambiguity on the question

of the intent of the parties to allow an arbitrator to decide

the validity of the 1991 arbitration clause" because it "raises

legitimate questions as to the continuing existence and scope of

the arbitration clause in the Manufacturing Agreement" and thus,

"the question of whether an agreement to arbitrate continues to

exist . . . is a question for the courts").

    ¶66    Consequently,        this     matter      requires     a      judicial

determination of "whether the parties consented to arbitrate the

matters covered by the [arbitration] demand."                Granite Rock Co.,

561 U.S. at 303 n.9 & 304 (referencing Buckeye Check Cashing,

546 U.S. at 444 n.1).         As will later be discussed, it is for the

circuit court to further explore the validity and enforceability

of the Redemption Agreement.


                         3.   Clarifying precedents

    ¶67    No    Wisconsin     or   federal   case   establishes        that   once
arbitration is contracted as the forum for dispute resolution,

parties can never later contract for an alternative forum for

dispute resolution.       To the extent Cirilli, 322 Wis. 2d 238, and

Mortimore,      344   Wis. 2d 459,     are    read   as     concluding    that    a

contract   to    arbitrate    is    irrevocable,     that    interpretation      is

inconsistent     with   the   law.      Clearly,     section    788.01    of     the

Wisconsin Arbitration Act contemplates that a court will enforce

"[a] provision in any written contract to settle by arbitration
a controversy thereafter arising out of the contract" and that

                                       34
                                                                           No.    2016AP601



such    contractual         provision     to    arbitrate      "shall        be    valid,

irrevocable and enforceable except upon such grounds as exist at

law or in equity for the revocation of a contract."                          Wis. Stat.

§ 788.01 (emphasis added).               Another contract that clearly and

expressly supersedes a first contract is "grounds as exist at

law or in equity for the revocation of a contract."                                  Thus,

Cirilli and Mortimore must not stand for the proposition that

once parties contract for arbitration, that decision is always

irrevocable.

       ¶68    Midwest and NEA rely on Cirilli for the proposition

that    whether      a    subsequent    agreement       revokes      the    consent     to

arbitrate found in an earlier agreement is for an arbitrator to

decide because it goes to the merits of the dispute.                                This,

however, construes Cirilli too broadly.

       ¶69    Cirilli, unlike this case, did not involve the same

parties entering into a subsequent contract.                       322 Wis. 2d 238,

¶¶5, 8 n.2, 8-9, 15 n.6.                Instead, in Cirilli, the plaintiffs

claimed that a subsequent settlement the defendants reached with
different parties released them from their duty to arbitrate

under    their    original         contract.     Id.,     ¶¶1-2.          Cirilli     says

nothing      about       whether   parties     can    enter   into    a     subsequent,

superseding contract and agree to remove their disputes from

arbitration.         Moreover, Cirilli neither addresses nor concludes

that there can never be "grounds as exist at law or in equity

for the revocation of a contract."                   In the case at issue, unlike

Cirilli, there is a dispute as to whether a second contract
without an arbitration clause supersedes the first contract with
                                          35
                                                                                  No.        2016AP601



such a clause.         As a result, unlike Cirilli, the determination

of    arbitrability,         whether       the        Operating         Agreement             is     an

unrevoked contract, must be decided, in the first instance, by

the circuit court rather than the arbitrator.

      ¶70    Midwest and NEA also assert that Mortimore, a case

where the court of appeals remanded the matter for arbitration,

lends further support for their cause.                         See 344 Wis. 2d 459, ¶1.

Midwest and NEA claim that there is no fundamental difference

between     the    oral    agreement       in    Mortimore            and    the    Redemption

Agreement      here,      because    neither      was          fully    executed.               At   a

minimum, Midwest and NEA seemingly acknowledge, however, that

there is a material factual dispute in both cases upon whether

there was a binding subsequent agreement.

      ¶71    In Mortimore, Mortimore's written employment contract

(entered in 2004) contained an arbitration clause and prohibited

oral modifications of the contract.                       Id., ¶3.       Specifically, the

contract stated that "[n]o amendment or modification of this

Agreement shall be: valid or binding upon [Merge Technologies]
unless    made    in   writing       and   signed          by    an     officer         of    [Merge

Technologies] . . . or upon the Executive unless made in writing

and   signed      by   him."        Id.     In    2006          Merge    Technologies               and

Mortimore began working towards drafting a new written contract

for   Mortimore.            Id.,     ¶7.         As       of     June       19,    2016,           "two

substantively different contract drafts were being edited by two

different      people——one         draft   was        a    new    contract,         the        other

amended Mortimore's 2004 contract."                        Id.         A cover letter was
prepared by the head of the compensation committee for one of
                                            36
                                                                          No.   2016AP601



the contracts——which       contained no arbitration clause——but the

cover letter and the contract were never sent nor signed.                             Id.

The   following   day     Merge       Technologies      decided      to     not   offer

Mortimore a new contract for a period and eventually decided to

seek his resignation instead.              Id., ¶8.

      ¶72   Based on these facts, the court of appeals held that

Merge   Technologies      and    Mortimore      had,    through      "a     process   of

negotiation,"     agreed        to    an    amendment        or    modification       to

Mortimore's 2004 employment contract.                  Id., ¶19.       The court of

appeals relied on the adoption of the Commercial Arbitration

Rules of the American Arbitration Association as a "clear and

unmistakable expression of the parties' intent to reserve the

question of arbitrability for the arbitrator and not the court."

Id., ¶20.    This conclusion of the court of appeals however was

based upon the fact that the "2004 contract contemplated that

amendments or modifications, such as those negotiated between

Mortimore   and   Merge    [Technologies],           would    be    enforceable       and

binding only if made in writing."               Id., ¶19.          Notably, despite
this provision, "the record show[ed] that no such modifications

or changes eliminating an arbitration requirement were ever made

in    writing."    Id.          The    court    of     appeals      concluded       that

Mortimore's "conten[tions] that this alleged oral agreement is

enforceable . . . [and] his breach of contract claims are not

subject to arbitration . . . is mistaken."                        Id., ¶18.       Thus,

Mortimore neither addresses nor concludes that once contracted

for, there can never be "grounds as exist at law or in equity
for the revocation of a contract."              In the case at issue, unlike
                                           37
                                                                                     No.    2016AP601



Mortimore, there is a material factual dispute as to whether a

second    written        contract,        which        does   not      have     an    arbitration

clause, supersedes the first written contract which does, such

that   the     determination            of    arbitrability            here     must       first   be

decided by the circuit court rather than the arbitrator.

       ¶73    In sum, Cirilli and Mortimore do not stand for the

proposition        that   once      parties        contract        for    arbitration,            that

decision is always irrevocable.                        Even in Mortimore, the circuit

court was called upon to determine whether the initial contract

had    been     revoked.            See       Mortimore,          344     Wis. 2d 459,            ¶19.

Clearly,      section        788.01          of   the       Wisconsin         Arbitration          Act

contemplates that a court will enforce "[a] provision in any

written       contract       to     settle         by       arbitration         a     controversy

thereafter         arising        out     of      the       contract"          and     that       such

contractual provision to arbitrate "shall be valid, irrevocable

and enforceable except upon such grounds as exist at law or in

equity for the revocation of a contract."                               Wis. Stat. § 788.01.

Another contract that clearly and expressly supersedes a first
contract      is   "grounds        as    exist         at   law   or     in    equity       for    the

revocation      of   a    contract."              To    the   extent      that        language      in

Mortimore or Cirilli suggests that contracts to arbitrate are

forever irrevocable, that language is limited by the facts of

those cases.

       ¶74    Midwest      and     NEA        also      argue     that        Great    Lakes       and

Dr. Pannu's challenge to the Operating Agreement is governed by

Buckeye Check Cashing, 546 U.S. 440, and Prima Paint Corp. v.
Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), and that those
                                                  38
                                                                            No.        2016AP601



cases      require       the    enforcement        of   the   Operating         Agreement.22

Midwest and NEA argue that this is so because the challenge is

not itself to the arbitration provision, but instead hinges on

whether         the    Redemption       Agreement       superseded        the     Operating

Agreement.             See    Buckeye   Check      Cashing,        546   U.S.     at    445-46

("[U]nless the challenge is to the arbitration clause itself,

the   issue       of    the    contract's      validity       is    considered         by    the

arbitrator in the first instance."); Prima Paint, 388 U.S. at

404 ("But the statutory language does not permit the federal

court      to    consider      claims    of   fraud     in    the    inducement         of   the

contract generally.").

      ¶75       The     challenges      in    Buckeye    Check      Cashing       and     Prima

Paint, however, are also distinguishable from the challenge in

      22
       Midwest and NEA also allege that Buckeye Check Cashing,
Inc. v. Cardegna, 546 U.S. 440 (2006), explained that "before
formation" and "after formation" challenges (words that Midwest
and NEA used, not the Supreme Court) should be treated
differently because not to do so would "permit[] a court to deny
effect to an arbitration provision in a contract that the court
later finds to be perfectly enforceable."       See Buckeye Check
Cashing, 546 U.S. at 448–49.         Midwest and NEA's argument
completely lacks merit. Buckeye Check Cashing's explanation was
in reference to why "a challenge to the validity of the contract
as a whole, and not specifically to the arbitration clause, must
go to the arbitrator."     Id. at 449.    It is unsurprising that
Buckeye Check Cashing did not make a distinction between labels
"before formation" and "after formation" as "it is not the mere
labeling of a dispute . . . that determines whether an issue is
arbitrable"; it is "whether the parties consented to arbitrate
the dispute in question."     Granite Rock Co. v. Int'l Bhd. of
Teamsters, 561 U.S. 287, 304 n.11 (2010). Tellingly, if a court
found a superseding agreement revoked the parties' consent to
arbitrate, the court could not later find that the arbitration
provision was enforceable.


                                              39
                                                                          No.    2016AP601



this case.         In both Buckeye Check Cashing and Prima Paint there

was only one contract.             Neither of the parties' challenges went

to the subsequent contracting out of arbitration.                           In Buckeye

Check Cashing, the parties resisting arbitration alleged that

"the contract as a whole (including its arbitration provision)

[was] rendered invalid by [a] usurious finance charge" that was

in violation of various laws.               546 U.S. at 443-44.            The parties,

however,     acknowledged       that     they     "concluded"       an    agreement    to

arbitrate and never alleged that the finance charge impacted or

revoked their consent to arbitrate.                    See id. at 444 n.1; Granite

Rock Co., 561 U.S. at 300-01.

       ¶76    Similarly,      in    Prima    Paint,        the    parties       resisting

arbitration alleged that the entire contract should be rescinded

because      they     were    fraudulently        induced        into     entering    the

contract      as     whole,   but    "no     claim       [was]    advanced      by   [the

resisting party] that [the other party] fraudulently induced it

to enter into the agreement to arbitrate."                       388 U.S. at 398-99,

406.    Here, however, Great Lakes and Dr. Pannu argue that the
Redemption     Agreement      superseded         the    Operating       Agreement.     In

fact, it is because of this genuine issue of material fact that

we send this matter back for further determination.                          See, e.g.,

Joint Sch. Dist. No. 10, 78 Wis. 2d at 101 ("For arbitration is

a matter of contract and a party cannot be required to submit to

arbitration any dispute which he has not agreed so to submit."

(quoting United Steelworkers, 363 U.S. at 582)).                          Thus, neither

Buckeye      Check    Cashing      nor   Prima     Paint    address       nor   prohibit


                                            40
                                                                           No.   2016AP601



parties from subsequently contracting out of arbitration as the

forum of dispute resolution.

       ¶77    Finally, fundamental principles of freedom to contract

support the proposition that parties can subsequently contract

to modify the terms of a previous contract.                          In fact, here,

various parties in various capacities did contract in 2005 and

2006.     Contracts can involve mutual agreement to change certain

obligations,      including       a   duty    to    arbitrate.         Wisconsin     law,

including Wis. Stat. ch. 788, does not limit such freedom to

contract,      but    rather      chapter    788     reinforces      the    freedom    of

contract by enforcing parties' contractual agreements.                           In fact,

this view comports with the Federal Arbitration Act if "grounds

exist at law or in equity for the revocation of any contract"

and places "arbitration agreements 'on equal footing with all

other contracts.'"          Kindred Nursing Ctrs., 137 S. Ct. at 1424;

Wis.     Stat.    § 788.01;        see,     e.g.,     Sipple    v.     Zimmerman,       39

Wis. 2d 481,         492,   159    N.W.2d 706        (1968)    ("The    contract       was

legally      binding    unless     mutually        rescinded   by    the     parties   to
it."); Town Bank, 330 Wis. 2d 340, ¶39 (describing the fact that

"when [a] contract contains an unambiguous merger or integration

clause, the court is barred from considering evidence of any

prior or contemporaneous understandings or agreements between

the parties" as a "principle [that] stems from basic contract

law").       Courts should remain mindful of the limited role endowed

to them under chapter 788 and not endeavor into the province of

the parties' contractual choice to arbitrate.


                                             41
                                                                         No.     2016AP601



      ¶78   The notion that no parties can ever contract out of

arbitration is antithetical to these values and principles than

the idea of a prohibition on contracting out of arbitration

through         mutual              agreement          and               thus,           a

"limitless . . . contractual obligation to arbitrate."                             Litton

Fin. Printing Div. v. NLRB, 501 U.S. 190, 209 (1991); see id.

("[The United States Supreme Court] refuse[d] to apply [the]

presumption [of arbitrability] wholesale in the context of an

expired bargaining agreement, for to do so would make limitless

the     contractual     obligation        to    arbitrate"        and    "determine[d]

whether the parties agreed to arbitrate this dispute" because a

court     "cannot     avoid    that      duty   because   it       requires        us   to

interpret a provision of a bargaining agreement.").                              Neither

Cirilli,    Mortimore,        Buckeye     Check    Cashing,        nor     Prima    Paint

require a competing result under these facts.                       Therefore, this

court's conclusion that a party can subsequently contract out of

the obligation to arbitrate is not only consistent with federal

and Wisconsin law, it is also necessitated by the fundamental
principles underlying freedom to contract.


                               B.   Summary Judgment

      ¶79   Finally, we briefly address why we remand this case to

the circuit court.        The principles of summary judgment are well-

defined.       Summary        judgment     is   granted      if     "the    pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party

                                           42
                                                                             No.    2016AP601



is entitled to a judgment as a matter of law."                                 Wis. Stat.

§ 802.08(2);         Hirschhorn,         338        Wis. 2d 761,        ¶20.          Stated

differently, summary judgment should not be granted "unless the

facts presented conclusively show that the plaintiff's action

has no merit and cannot be maintained."                         Mrozek v. Intra Fin.

Corp., 2005 WI 73, ¶14, 281 Wis. 2d 448, 699 N.W.2d 54.

       ¶80     In determining whether to grant summary judgment, "the

court decides whether there is a genuine issue of material fact;

the    court      does     not    decide      the     fact."       Racine       Cty.,       323

Wis. 2d 682,        ¶25.         The    moving       party     bears    the     burden       of

establishing the absence of a genuine, that is, disputed, issue

of material fact.           AccuWeb, Inc. v. Foley & Lardner, 2008 WI 24,

¶21,     308      Wis. 2d 258,         746    N.W.2d 447;       Grams     v.       Boss,     97

Wis. 2d 332,        338,    294   N.W.2d 473         (1980).       Moreover,        we     view

summary judgment materials in the light most favorable to the

non-moving party.             AccuWeb, 308 Wis. 2d 258, ¶21.                       A factual

issue is "genuine" if the evidence is such that a reasonable

jury could return a verdict in favor of the non-moving party.
Baxter v. DNR, 165 Wis. 2d 298, 312, 477 N.W.2d 648 (Ct. App.

1991).       A "material fact" is one that is "of consequence to the

merits       of   the    litigation."              Michael     R.B.     v.     State,       175

Wis. 2d 713, 724, 499 N.W.2d 641 (1993).                       "Any reasonable doubt

as to the existence of a genuine issue of material fact must be

resolved against the moving party" for summary judgment.                              Heck &

Paetow    Claim      Serv.,      Inc.    v.    Heck,    93   Wis. 2d 349,          356,     286

N.W.2d 831 (1980).


                                              43
                                                                                    No.     2016AP601



    ¶81        The    question       that      was      before      the     circuit        court    on

summary    judgment          was    whether       the    Redemption          Agreement        was    a

valid     and       enforceable          contract.           Competing       affidavits           were

submitted which presented genuine issues of material fact.

    ¶82        Nonetheless,           the      circuit            court     granted         summary

judgment in favor of Great Lakes and Dr. Pannu concluding that

the Redemption Agreement was validly formed.                                The circuit court

found that Dr. Ahuja, through Midwest's attorney, made an offer

that he intended to be bound by when the e-mail containing the

"final    agreement"          was    sent,        and   that       Dr. Pannu      accepted         the

offer when he signed the Redemption Agreement and returned it

with the check that was subsequently cashed.                                Prior to granting

summary judgment, however, the circuit court acknowledged that

"maybe there[ are] some" factual disputes.

    ¶83        In     this    case,      we    conclude           that    the    circuit         court

improperly          granted        summary        judgment         to     Great       Lakes        and

Dr. Pannu.          In support of their competing motions, the parties

presented       affidavits          attempting          to    demonstrate         their      mutual
assent, or lack thereof, to forming the Redemption Agreement.

See Wis. Stat. § 802.08(2) (precluding summary judgment if there

is a "genuine issue as to any material fact" (emphasis added)).

    ¶84        In     support       of      the     position         that       the   Redemption

Agreement       was     validly       formed       and       is    enforceable,           Dr. Pannu

submitted       an     affidavit         representing             that      Great     Lakes        and

Dr. Pannu       had    performed         all      of    their      obligations            under    the

Redemption Agreement other than moving out of their office by
April     8,        2015,     including           delivering         a      check         that     was
                                                  44
                                                                            No.     2016AP601



subsequently cashed.             That evidence, however, was refuted by

Dr. Ahuja's affidavit.                Dr. Ahuja asserted that the check was

cashed in error by a clerical employee, and that a cashier's

check in the same amount was sent to Dr. Pannu once the error

was discovered.             Further, Dr. Ahuja asserted that he had never

agreed    to    the     terms    of    the     Redemption       Agreement;        had    never

instructed Midwest's attorney to include a complete release of

Great    Lakes'        or    Dr. Pannu's       non-compete       obligations        in    the

Redemption Agreement, and in fact disagreed with releasing the

restrictions; and that in April he told Dr. Pannu in a phone

conversation about signing the Redemption Agreement that he was

still reviewing it and shortly after the phone call determined

that he was not willing to sign it.                    He noted that the agreement

does not contain his signature.

    ¶85        At a minimum, these competing affidavits raise genuine

issues    of    material       fact    rendering       summary    judgment        improper.

Hence, we reverse and remand the cause to the circuit court.


                                      V.   CONCLUSION

    ¶86        The crux of the issue before us concerns the circuit

court's     role       in    determining        the     proper     forum     of     dispute

resolution when a subsequent contract, if enforceable, does not

contain    an    arbitration          clause      as   is   present    in    an     initial

contract.        As a part of that analysis we consider whether a

contract       which    contains      a    merger      clause    and   which      does    not

contain an arbitration clause can change the forum of dispute
resolution when a prior agreement between the parties contains

                                             45
                                                                         No.     2016AP601



an arbitration clause.              The parties make competing arguments

regarding a court's role in determining the applicability of

this    arbitration       provision.           They    take    contrary         positions

regarding whether all disputes, even arbitrability itself, must

be submitted to arbitration.              The parties present conflicting

views of precedent regarding the judiciary's role in deciding

motions to compel arbitration when a subsequent contract does

not select arbitration as the forum for dispute resolution and

does contain a merger clause which states that the subsequent

agreement     supersedes      all    prior      contracts.          Relatedly,        the

parties dispute whether all parties here can be compelled to

arbitrate when arguably only one co-defendant is contractually

required to arbitrate pursuant to the initial contract.

       ¶87   The claims in the underlying lawsuit that called upon

the court to decide whether the dispute belonged in arbitration,

involve whether Great Lakes and Dr. Pannu violated restrictive

covenants     in    the      Operating     Agreement          and   the         Ancillary

Restrictive Covenant.          The Redemption Agreement, however, does
not contain an arbitration provision and in fact, purports to

release those restrictive covenants.                  Therefore, which contract

controls     is    seminal    in    the    first       instance     as    to      whether

arbitration should be ordered.             Ultimately, regardless of forum,

the    controlling     documents       will     also     impact     the        underlying

dispute itself.

       ¶88   The circuit court concluded on summary judgment that

even though the initial agreement, here the Operating Agreement,
required arbitration it was superseded by a later, valid and
                                          46
                                                                                      No.      2016AP601



enforceable Redemption Agreement which did not so require the

parties to submit to arbitration.                         The court of appeals reversed

and    remanded        with      instructions            to    grant     Midwest's          motion      to

compel arbitration.

       ¶89    We reverse the court of appeals and conclude that the

fundamental principles of freedom to contract allow parties to a

previous contract to subsequently contract for a different forum

of dispute resolution.                  Here, it is necessary that the circuit

court    initially           determine       whether           the    parties        contracted         to

arbitrate.             The      court's      authority          to     order       arbitration          is

dependent       on      the     terms     of    a    contract.               If    the    Redemption

Agreement         is    the      parties'       contract,            then     the     court          lacks

authority to order arbitration.                               Thus, the court must first

ascertain         which         contract        controls         the         forum       of     dispute

resolution.            In sum, we conclude that it is a court's duty to

determine whether a contract calls for arbitration and when a

dispute      exists        as    to     whether      a        second    contract         without        an

arbitration        clause        supersedes          a    first        contract       with      such    a
clause, the determination of arbitrability must be decided in

the     first      instance        by     the       circuit          court     rather         than     the

arbitrator.

       ¶90    We       also     conclude,       however,         that        the   cause       must     be

remanded to the circuit court, not to compel arbitration as was

ordered      by      the      court     of     appeals,         but     rather,       because          the

parties'     competing           affidavits          submitted          in    support         of     their

positions on summary judgment raised genuine issues of material
fact    concerning           whether      the    Redemption            Agreement         is    a     valid
                                                    47
                                                                No.   2016AP601



contract.    Therefore, we reverse and remand to the circuit court

for further proceedings.



    By    the   Court.—The   decision   of   the   court   of     appeals   is

reversed, and the cause is remanded to the circuit court for

further proceedings consistent with this opinion.

    ¶91     REBECCA FRANK DALLET, J., withdrew from participation.




                                   48
                                                                                  No.    2016AP601.ssa


       ¶92    SHIRLEY S. ABRAHAMSON, J.                         (concurring).                There are

two    primary         agreements         in    the      instant     case.         The       Operating

Agreement         says        that       all       disputes      will      be      submitted          to

arbitration and issues of substantive arbitrability will also be

decided by the arbitrator.                     The Redemption Agreement purports to

release      Great          Lakes      and    Pannu      from   any    and      all     obligations

imposed      upon       them      by    the    Operating        Agreement,         including         any

agreement to arbitrate disputes.

       ¶93    The legal issues about which the parties disagree are

the    effect          of     the      Redemption         Agreement        on     the        Operating

Agreement      and          whether      the       Redemption        Agreement          is    a   valid

contract.

       ¶94    I     agree         with       the    majority         that,      if      valid,       the

Redemption Agreement releases Great Lakes and Pannu from the

agreement to arbitrate contained in the Operating Agreement, and

that    the   cause          should      be    remanded         to   the     circuit         court   to

determine whether the Redemption Agreement is a valid contract.

       ¶95    However, I write separately because the majority fails
to set forth a clear analytical framework through which the

legal issues presented in the instant case should be resolved

and mishandles federal case law in the process.                                      Additionally,

the majority stumbles in its application of the law to the facts

in such a way that warrants both clarification and correction.

                                                     I

       ¶96    Although they are not binding on this court, several

decisions         by        the     federal        circuit      courts       of      appeals       have



                                                     1
                                                                   No.   2016AP601.ssa


addressed the issue presented by the instant case.1                           Of these

cases, Dasher v. RBC Bank (USA), 745 F.3d 1111 (11th Cir. 2014),

is the most helpful and worthy of special consideration.

       ¶97    In Dasher, Dasher sued the bank for allegedly charging

excessive       overdraft     fees   in       breach   of    his       2008    account

agreement.       The 2008 Agreement contained an arbitration clause.

In 2012, a new account agreement was issued and Dasher accepted

that       agreement.       The   2012    Agreement     did      not     contain     an

arbitration clause.          When the bank moved to compel arbitration

per the 2008 Agreement's arbitration clause, an issue arose as

to   whether     that   clause    was     effective,    given      that       the   2012

Agreement had superseded the 2008 Agreement.

       ¶98    The Dasher court rejected the bank's argument that an

arbitration clause in an entirely superseded agreement remains

effective      unless   specifically       eliminated       in   the     superseding

agreement.        The   Dasher    court    explained    that       "[d]espite       [the

language in the cases cited by RBC], which certainly appears to

support RBC's contention, closer examination reveals a critical
distinction:       in each case cited by RBC, the prior agreement

remained effective to some extent for various reasons, whereas


       1
       See, e.g., Dasher v. RBC Bank (USA), 745 F.3d 1111 (11th
Cir. 2014); Dottore v. Huntington Nat'l Bank, No. 1:09-cv-2636,
2010 WL 3861010 (N.D. Ohio Sept. 28, 2010), aff'd, 480 Fed.
Appx. 351 (6th Cir. 2012); Applied Energetics, Inc. v. NewOak
Capital Mkts., LLC, 645 F.3d 522 (2d Cir. 2011); Bank Julius
Baer & Co., Ltd. v. Waxfield Ltd., 424 F.3d 278 (2d Cir. 2005);
Riley Mfg. Co., Inc. v. Anchor Glass Container Corp, 157
F.3d 775 (10th Cir. 1998); Patten Sec. Corp., Inc. v. Diamond
Greyhound & Genetics, Inc., 819 F.2d 400 (3d Cir. 1987);
Matterhorn, Inc. v. NCR Corp., 763 F.2d 866 (7th Cir. 1985).


                                          2
                                                                             No.   2016AP601.ssa


here, the prior agreement is entirely superseded."2                                 The cases

cited    by    the    bank    could    not    stand      for    the      proposition        that

arbitration         clauses    in    entirely         superseded        agreements       remain

effective unless specifically eliminated because none of those

cases dealt with an entirely superseded agreement.3

     ¶99       In my view, the Dasher case persuasively articulates

the correct analytical framework.

     ¶100 Whether,            and    to    what       extent,       a    second       contract

supersedes      a     prior   contract       containing        an     arbitration        clause

such that the prior contract's arbitration clause is rendered

ineffective is an issue that must be decided by the court rather

than an arbitrator.             The assertion that the prior contract's

arbitration         clause     was    superseded         calls        into     question      the

enforceability of the arbitration clause specifically, including

the agreement to arbitrate issues of substantive arbitrability.4

     ¶101 In          determining         whether,      and      to     what       extent,     a

subsequent       contract      supersedes         a    prior     contract,         the    court

"should       apply    ordinary      state-law         principles        that      govern    the




     2
         Dasher, 745 F.3d at 1120.
     3
         Id.
     4
       Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444
& n.1 (2006) (stating that a party resisting arbitration may
dispute that an agreement to arbitrate "ever concluded" or
"challenge[] specifically the validity of the agreement to
arbitrate"); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388
U.S. 395, 402-04 (1967); see also Granite Rock Co. v. Int'l Bhd.
of Teamsters, 561 U.S. 287, 297-300 (2010).


                                              3
                                                                                No.   2016AP601.ssa


formation of contracts."5                    "If the subsequent agreement only

partially supersedes the prior agreement, amends it, or waives

some       but    not    all    of   its    provisions,           the    second       question      is

whether          the    arbitration        provision        was     among   the       superseded,

amended, or waived provisions."6                            If, however, the subsequent

agreement         entirely      supersedes        the       prior      agreement,       the       court

should       determine          "whether         the    subsequent          agreement             alone

supports a motion to compel arbitration."7

                                                  II

       ¶102 I          now   apply   the     relevant         state-law         principles         that

govern the formation of contracts.

       ¶103 The Wisconsin Arbitration Act provides, in pertinent

part, that arbitration clauses "shall be valid, irrevocable and

enforceable            except   upon      such    grounds         as    exist    at    law    or    in

equity       for       the   revocation      of       any    contract."8          A    subsequent

contract that supersedes a prior contract constitutes "grounds

as   exist         at    law    or   in     equity      for       the    revocation          of    any

contract."9            The question, then, is whether, and to what extent,
the Redemption Agreement, the second contract, supersedes the

Operating Agreement, the first contract.


       5
       First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938,
944 (1995)
       6
           Dasher, 745 F.3d at 1122.
       7
           Id. at 1123.
       8
           Wis. Stat. § 788.01.
       9
           Majority op., ¶47.


                                                  4
                                                              No.    2016AP601.ssa


    ¶104 A     subsequent     agreement's      supersession         of   a    prior

agreement is typically accomplished by including a merger clause

in the subsequent agreement.          In Wisconsin, this court stated

the following with respect to merger clauses:

    [The appellant] argues . . . that an exception exists
    to the general rule that parol evidence is admissible
    with respect to the issue of integration; that
    evidence of contemporaneous or prior agreements,
    written or oral, which relate to the same subject
    matter as the agreement in question is not admissible
    when the written agreement embodies written terms
    excluding additional understandings or agreements not
    contained in the writing, i.e., 'merger' clauses.
    With this much we can agree. Absent claims of duress,
    fraud, or mutual mistake, a written provision which
    expressly     negatives  collateral    or   antecedent
    understandings    makes  the   document   a   complete
                 10
    integration.
    ¶105 A     recent    decision     concerning      merger        clauses     and

supersession    of    contracts,     Town   Bank   v.    City       Real     Estate

Development, LLC, 2010 WI 134, 330 Wis. 2d 340, 793 N.W.2d 476,

is instructive in resolving the dispute in the instant case.

    ¶106 Town    Bank     involved    a   two-phase     financing        agreement

between   a    bank     and   a    developer    for     the     purchase        and

redevelopment of a building in downtown Milwaukee.                  A Commitment
Letter pledged financing for both phases of the project, but a

subsequent Term Credit Agreement (TCA) executed by the parties

provided financing for only the first phase.              The TCA contained

the following clause:



    10
       Dairyland Equip. Leasing, Inc. v. Bohen, 94 Wis. 2d 600,
855-56, 288 N.W.2d 852 (1980); see also Matthew v. Am. Family
Mut. Ins. Co., 54 Wis. 2d 336, 341-42, 195 N.W.2d 611 (1972).


                                      5
                                                                    No.    2016AP601.ssa

       This Agreement, including the Exhibits attached or
       referring to it, the Note and the Security Documents,
       are intended by Customer and Lender as a final
       expression of their agreement and as a complete and
       exclusive statement of its terms, there being no
       conditions   to  the   full   effectiveness of  their
       agreement except as set forth in this Agreement, the
       Note and the Security Documents.11
       ¶107 The      bank   provided      the    first    phase    of    financing    as

provided by the TCA, but refused to finance the second phase as

referenced      in    the     Commitment        Letter.      The    bank     sued    the

developer seeking a declaratory judgment that the bank was not
obligated to provide additional funding to the developer.

       ¶108 The Town Bank court concluded that because the TCA

contained      an    unambiguous        merger     clause,    quoted       above,    the

developer was precluded from introducing any evidence of prior

understandings or agreements that may have existed between the

parties, including the Commitment Letter.12

       ¶109 Implicit        in   the    court's    holding   was    the     conclusion

that the TCA and Commitment Letter related to the same subject

matter.       That is, the Town Bank court (incorrectly, in my view)

must have concluded that the TCA was the final expression of the

parties' financing agreement altogether, as opposed to being the

final expression of only the first phase of financing.                              Were

this    not    the    case,      Town   Bank     would    stand    for     the   absurd

proposition that a fully integrated contract with respect to one

subject can extinguish contracts between the same parties with

       11
       Town Bank v. City Real Estate Dev., LLC, 2010 WI 134,
¶14, 330 Wis. 2d 340, 793 N.W.2d 476.
       12
            Id., ¶¶40-41.


                                           6
                                                                     No.   2016AP601.ssa


respect to entirely unrelated subjects.13                    This is not, and has

never     been,    how   merger     clauses         operate     in    Wisconsin      or

elsewhere.14

     ¶110 Thus, with these state-law principles in mind, I turn

to whether, and to what extent, the Redemption Agreement, if

valid, supersedes the Operating Agreement.

                                      III

     ¶111 The majority suggests that, if valid, the Redemption

Agreement supersedes the Operating Agreement in its entirety.15

The Redemption Agreement does no such thing.

     ¶112 The merger clause in the Redemption Agreement states

that the Redemption Agreement "constitutes the entire agreement

between    the    parties    pertaining        to      its   subject       matter   and

supersedes        all    prior      agreements,          promises,          covenants,

arrangements,      communications,        representations            or    warranties,

whether    oral    or    written,    by       [Great     Lakes]      or    [Midwest]."

(Emphasis added.)

     ¶113 Is the "subject matter" of the Redemption Agreement
identical to the "subject matter" of the Operating Agreement

such that the former entirely supersedes the latter?                        The answer

is clearly, "No."



     13
          Id., ¶¶68-72 & nn.10-13 (A.W. Bradley, J., dissenting).
     14
       Dairyland, 94 Wis. 2d at 608-09; Matthew, 54 Wis. 2d at
341-42; 11 Richard A. Lord, Williston on Contracts § 33:14 (4th
ed. 2002); Restatement (Second) of Contracts § 213.
     15
          See majority op., ¶¶47, 56, 64, 67, 75.


                                          7
                                                                    No.    2016AP601.ssa


      ¶114 The Operating Agreement's purpose is to provide "the

rights,    obligations,          and    restrictions"       that    will     apply     to

Midwest and its Members.               Within its scope are the subjects of

capital contributions, tax distributions, allocations of profits

and losses, the authority and powers of Midwest's officers and

Members,      etc.    It    is    a    document     that    governs   the     internal

operations      of   Midwest.          On   the    other    hand,   the    Redemption

Agreement's purpose is to "set forth the terms upon which [Great

Lakes] will sell and [Midwest] will redeem [Great Lakes'] entire

Membership Interest[.]"            It does not purport in any way to alter

or address the internal operations of Midwest and how those

operations are to be governed.

      ¶115 Although        there       is   some   overlap    in    subject     matter

between the Operating Agreement and Redemption Agreement (e.g.,

how   Great    Lakes'   Membership          Interest   is    calculated      and     paid

out), the subject matter of the agreements is not identical.

      ¶116 The Redemption Agreement, if valid, would not entirely

revoke the Operating Agreement as the majority suggests.16                           Even
if the Redemption Agreement is valid, the Operating Agreement

will still have binding effect on Midwest and all of its Members

even if it will no longer have any binding effect on Great Lakes

or Pannu.       Would Midwest lack a written agreement as to its

      16
       At ¶¶59-60, the majority appears to read the merger
clause in a way that is untethered to the subject matter of the
Redemption Agreement. This suggestion gives further support to
the absurd proposition that merger clauses have the effect of
extinguishing prior agreements between the parties unrelated to
the subject matter of the contract in which the merger clause is
contained. See supra ¶108 and notes 13-14.


                                             8
                                                                             No.    2016AP601.ssa


internal      operations        simply     because         it    agreed       to     allow     the

voluntary dissociation of a Member and release that Member from

obligations imposed by the Operating Agreement?                             I think not.

       ¶117 Indeed, we have an example of an entirely superseded

contract      in    the      instant      case,      namely,          the     2002     Original

Operating      Agreement.            Section        1.4     of    the       2005      Operating

Agreement      states:          "This    Operating         Agreement         and     the     terms

hereof      supersede     and    replace       the       Original      Agreement       and     its

terms."       There is no ambiguity——the 2005 Operating Agreement

completely      and    entirely         extinguished        the       terms    of     the    2002

Original      Operating       Agreement.            If    Midwest      had     intended       the

Redemption         Agreement      to     entirely          supersede          the     Operating

Agreement, one would expect to see language similar to what

Midwest used to entirely supersede the 2002 Original Operating

Agreement.

       ¶118 Thus,       if    valid,     the       Redemption         Agreement       does     not

entirely supersede the Operating Agreement.                            However, that does

not end the inquiry.                 The court must also determine if the
Redemption Agreement supersedes the Operating Agreement at all,

and if so, whether the Operating Agreement's arbitration clause

is one of the superseded provisions.

       ¶119 The majority asserts that the Applicable Law provision

of the Redemption Agreement expressly supersedes "the Operating

Agreement's mode of adjudication, including its incorporation of

JAMS     Arbitration         Rules     that    granted          the    authority        to    the

arbitrator to determine arbitrability."17
       17
            Majority op., ¶64.

                                               9
                                                                 No.    2016AP601.ssa


     ¶120 The majority's assertion incorrectly conflates choice-

of-law    provisions   and   arbitration        clauses.       Providing        that

questions concerning the construction of a contract shall be

governed by Wisconsin law says nothing about the forum in which

those questions will be decided.

     ¶121 The majority finally finds its footing when it reaches

the Mutual Release provision of the Redemption Agreement.                          I

agree with the majority that "[t]he obligation or promise to

'resolve any and all disputes arising with respect to the terms

and conditions of this Operating Agreement . . . by arbitration'

seemingly fits within this release."18

     ¶122 Asserting      that      a    subsequent    contract     released       the

resisting    party    from   its       obligation    to   submit       disputes   to

arbitration is exactly the type of specific challenge to the

enforceability of a validly formed arbitration clause that the

United States Supreme Court requires.19              Great Lakes and Pannu do

not argue that the arbitration clause in the Operating Agreement

was invalidly formed.        Rather, they argue that the arbitration
clause in the Operating Agreement cannot be enforced because the




     18
          Id., ¶61.
     19
       Buckeye, 546 U.S. at 444 & n.1; Prima Paint, 388 U.S. at
402-04; see also Granite Rock, 561 U.S. at 297-300.


                                         10
                                                                        No.   2016AP601.ssa


Mutual Release provision specifically revokes any obligation on

their part to submit to arbitration.20

                                           IV

     ¶123 The majority's focus on the principles undergirding

freedom   of   contract      is    not    misplaced      or      inappropriate——those

principles support the majority's conclusion that parties that

agreed to arbitrate disputes may undo that agreement if they so

choose.   However, these principles alone do not provide a clear

analytical framework through which the legal issue presented in

the instant case should be resolved

     ¶124 I would articulate that framework as follows.

     ¶125 Whether,          and    to    what       extent,      a   second      contract

supersedes     a    prior   contract      containing        an     arbitration      clause

such that the prior contract's arbitration clause is rendered

ineffective is an issue that must be decided by the court rather

than an arbitrator.           The assertion that the prior contract's

arbitration        clause    was   superseded         calls      into     question      the

enforceability of the arbitration clause specifically, including
the agreement to arbitrate issues of substantive arbitrability.

     ¶126 In        determining         whether,      and     to     what     extent,     a

subsequent     contract      supersedes         a   prior     contract,       the    court

     20
       Puzzlingly, the majority calls into question this
framework.   See majority op., ¶74 n.22.   To be clear, Supreme
Court precedent establishes two ways in which arbitration
clauses may be challenged in and resolved by a court.        The
resisting party may dispute that an agreement to arbitrate "ever
concluded," Buckeye, 546 U.S. at 444 n.1, or "challenge[]
specifically the validity of the agreement to arbitrate" as
Great Lakes and Pannu do in the instant case, Buckeye, 546 U.S.
at 444-45.


                                           11
                                                                                No.   2016AP601.ssa


should    apply       ordinary      state-law             principles          that    govern     the

formation       of    contracts.              If        the    subsequent        contract      only

partially supersedes the prior contract, amends it, or waives

some    but    not    all     of   its    provisions,               the    second     question   is

whether       the    arbitration         provision            was     among    the    superseded,

amended,      or     waived    provisions.                If,       however,    the    subsequent

contract       entirely       supersedes           the        prior       contract,    the     court

should determine whether the subsequent contract alone supports

a motion to compel arbitration.

       ¶127 In the instant case, it appears that the purpose of

the Redemption Agreement was not to nullify or extinguish the

Operating Agreement in its entirety.                                 Rather, the Redemption

Agreement sets forth the terms upon which Great Lakes will cease

to be a Member of Midwest and release Great Lakes and Pannu from

any and all obligations that the Operating Agreement might have

imposed upon them, including the obligation to submit disputes

arising out of the Operating Agreement to arbitration and to

allow     the        arbitrators         to        decide           issues     of     substantive
arbitrability.

       ¶128 However, there is a genuine issue of material fact

with    regard       to   whether    the       Redemption             Agreement       is   a   valid

contract.           Thus, the cause should be remanded to the circuit

court for the determination of this issue.




                                                   12
                                                                                No.   2016AP601.rgb


       ¶129 REBECCA           GRASSL     BRADLEY,          J.     (dissenting).                  The

majority          nullifies     the     parties'        arbitration              agreement        by

creating a new rule bestowing on the judiciary the power to

decide       arbitrability        even     though          the        parties         agreed      an

arbitrator would resolve this issue.                        Ironically, the majority

invokes      "fundamental        principles        of   freedom            to   contract"1       but

nonetheless          infringes    on     the    contracting            rights         of    private

parties and expands the statutorily limited role of the courts

when       parties    contract     for    arbitration.                 I    would       honor    the

parties'      contractual        agreement         to   let      the       arbitrator         decide

what, if any, impact the partially-executed Redemption Agreement

had on the existence and validity of the Operating Agreement.

       ¶130 Because       the     parties       dispute         the        formation        of   the

Redemption Agreement as well as its effect on the continued

existence of the Operating Agreement, this court must apply the

rules       the    parties      agreed    to       follow        under          their      existing

contract, for "any and all disputes arising with respect to the

terms       and    conditions      of    this       Operating              Agreement."           See
Operating Agreement, § 13.7.                   The dispute here is whether the

Redemption Agreement supersedes the Operating Agreement as to

Great Lakes and Dr. Pannu, thereby eliminating the arbitration

provision.         This presents an issue of substantive arbitrability,

which the parties contractually agreed to have the arbitrator

decide.       The majority acknowledges (albeit in a footnote) that

"[t]he         JAMS       Arbitration              Rules         in          the           Operating


       1
           Majority op., ¶5.


                                               1
                                                                   No.   2016AP601.rgb


Agreement . . . require that even the issue of arbitrability be

arbitrated"2 but overrides the parties' chosen method of dispute

resolution      anyway.3      I   would       instead    respect     the    parties'

contract, affirm the court of appeals, and remand the matter to

the   circuit    court     with   directions      to    send   the   case    to   the

arbitrator      for   resolution    of    this    preliminary        dispute.4      I

respectfully dissent.




      2
       Majority op., ¶2 n.2. "JAMS" is an acronym for Judicial
Arbitration and Mediation Services, Inc.
      3
       While the foundation of the majority's preference for
court resolution of arbitrability disputes is unclear, its
disdain for arbitration as a method of dispute resolution is
transparent in its declaration that "only those disputes that
the parties have agreed to so submit to arbitration are
relegated to proceed in that forum."         Majority op., ¶43
(emphasis added).   The majority misunderstands that the choice
of method for dispute resolution belongs to the parties, not the
court.
      4
       The arbitrator would first decide arbitrability, which
involves two inquiries: (1) "whether there is a construction of
the arbitration clause that would cover the grievance on its
face" and (2) "whether any other provision of the contract
specifically excludes it." Joint Sch. Dist. No. 10 v. Jefferson
Educ. Ass'n, 78 Wis. 2d 94, 111, 253 N.W.2d 536 (1977). In this
case, no party challenges the applicability of the arbitration
clause in and of itself; rather, Great Lakes and Dr. Pannu
dispute its enforceability, alleging that a second contract
eliminated the arbitration provision.        If the arbitrator
determines that the arbitration clause in the Operating
Agreement no longer exists or is invalidated by the Redemption
Agreement, this case returns to court for ultimate disposition
of the underlying issue.      If the arbitrator determines the
Redemption Agreement was never formed, the non-compete issue
would be resolved in an arbitration of the merits.


                                          2
                                                                     No.    2016AP601.rgb


                                            I

       ¶131 Principles governing arbitration disputes are rather

straightforward and should have controlled the disposition of

this    case.     First,    Wis.       Stat.     § 788.01    (2015-16)      recognizes

that:

       A provision in any written contract to settle by
       arbitration a controversy thereafter arising out of
       the contract, or out of the refusal to perform the
       whole or any part of the contract . . . shall be
       valid, irrevocable and enforceable except upon such
       grounds as exist at law or in equity for the
       revocation of any contract.
Wisconsin has a longstanding "policy of encouraging arbitration

as an alternative to litigation,"                  First Weber Grp., Inc. v.

Synergy Real Estate Grp., LLC, 2015 WI 34, ¶24, 361 Wis. 2d 496,

860 N.W.2d 498 (quoted source omitted), and "[t]here is a strong

presumption      of    arbitrability       where     the    contract       in   question

contains an arbitration clause," Cirilli v. Country Ins. & Fin.

Servs., 2009 WI App 167, ¶14, 322 Wis. 2d 238, 776 N.W.2d 272.

       ¶132 Second,        the         circuit     court      generally          decides

arbitrability unless the parties contract to have the arbitrator
decide it, as they have done here.                 See First Weber Grp., Inc.,

361 Wis. 2d 496, ¶36.            The arbitrability issue addresses whether

the parties agreed to submit a dispute to arbitration.                                See

Kimberly Area Sch. Dist. v. Zdanovec, 222 Wis. 2d 27, 37, 586

N.W.2d 41       (Ct.    App.     1998).           When     parties     "clearly       and

unmistakably"      contract       to    have     arbitrability       decided     by   the

arbitrator, the circuit court must honor the parties' choice.

See AT&T Techs., Inc. v. Commc'ns. Workers of Am., 475 U.S. 643,
649 (1986).      When the parties specifically incorporate the JAMS'
                                            3
                                                                              No.    2016AP601.rgb


Arbitration         Rules     in    their     contract,          the    court       views     their

inclusion as a clear and unmistakable agreement to remove the

arbitrability determination from the circuit court and place it

with the arbitrator.                 Mortimore v. Merge Techs., 2012 WI App

109, ¶20, 344 Wis. 2d 459, 824 N.W.2d 155; Oracle Am., Inc. v.

Myriad       Grp.     A.G.,        724     F.3d        1069,    1074     (9th       Cir.        2013)

("Virtually         every     circuit       to    have        considered      the     issue      has

determined        that      incorporation          of     [formal]       arbitration            rules

constitutes         clear    and     unmistakable          evidence      that       the    parties

agreed to arbitrate arbitrability.").

       ¶133 Finally,          as     the    majority           recognizes,5         Chapter      788

prescribes        a   limited       role     for        the    courts    over        arbitration

proceedings,          enumerating        specific         judicial       powers.           Notably

absent from this narrow conferral of judicial authority is the

power to remove decisions over arbitrability from the arbitrator

when       the   parties      contractually             assigned       that    issue       to    the

arbitrator alone.

                                                  II
       ¶134 Applying these rules, the answer is obvious:                                   whether

these parties will arbitrate their underlying dispute must be

decided by the arbitrator.                   The Operating Agreement upon which

Midwest bases its non-compete claim against Great Lakes and Dr.

Pannu contains an arbitration clause, which plainly incorporates

JAMS Arbitration Rules:




       5
           Majority op., ¶46.


                                                  4
                                                          No.    2016AP601.rgb

           Section 13.7. Arbitration. With the exception of
      any decision made by Midwest pursuant to the terms of
      Section 5.5 hereof ["Appointment of and Powers of the
      Company President."] (which shall be deemed final),
      the parties hereto agree to resolve any and all
      disputes arising with respect to the terms and
      conditions of this Operating Agreement hereby by
      arbitration conducted by a single arbitrator selected
      from a slate of potential arbitrators residing in the
      Milwaukee, Madison or Chicago metropolitan areas, from
      a slate of five, proposed by JAMS.           The party
      requesting arbitration shall strike the first name
      from the slate and the other party shall strike the
      next, alternating until a final individual remains,
      who   shall  serve   as  arbitrator   and  conduct  an
      arbitration   proceeding   in   accordance   with  the
      Arbitration Rules of JAMS. The arbitrator shall have
      the power to order temporary and permanent injunctive
      relief, on an expedited basis if deemed necessary.
      Any decision made by such an arbitrator within the
      scope of his or her authority shall be binding upon
      the parties.   Unless agreed otherwise by the parties
      and arbitrator, the arbitration shall take place in
      Milwaukee County.   The arbitration shall be governed
      by the laws of the State of Wisconsin, this Operating
      Agreement and the JAMS' Arbitration Rules[.]
(Emphasis added.)       JAMS Rule 11(b) provides:

      Jurisdictional and arbitrability disputes, including
      disputes over the formation, existence, validity,
      interpretation or scope of the agreement under which
      Arbitration is sought, and who are proper Parties to
      the Arbitration, shall be submitted to and ruled on by
      the Arbitrator. The Arbitrator has the authority to
      determine jurisdiction and arbitrability issues as a
      preliminary matter.
(Emphasis added.)       Accordingly, the arbitration provision of the

Operating Agreement evinces the parties' contractual agreement

to have the arbitrator, rather than the circuit court, decide

issues   of   arbitrability.        The     arbitration   provision      also

requires "any and all disputes arising with respect to the terms
and   conditions   of    this   Operating   Agreement"    be    resolved   in

arbitration under JAMS rules.
                                     5
                                                                    No.   2016AP601.rgb


      ¶135 Application of these rules under Wisconsin law easily

resolves this preliminary issue.                    The parties entered into a

contract        with   an   arbitration     clause,    which     incorporates        JAMS

Arbitration Rules.             Those Rules confer exclusive authority on

the arbitrator to decide issues of arbitrability.                         Controlling

law holds that by doing so, the arbitrability question must be

decided by the arbitrator——not the circuit court.                         The dispute

about whether the Redemption Agreement was formed challenges the

existence and validity of the Operating Agreement.                           JAMS Rule

11(b) controls and assigns authority to resolve this preliminary

dispute to the arbitrator alone.                   Allegations that a partially-

executed Redemption Agreement superseded the Operating Agreement

do not alter the analysis.

      ¶136 The majority expresses concern that "serious questions

exist as to whether the Operating Agreement still controls the

issue      of     arbitrability,         whether     the   Redemption        Agreement

supersedes that agreement, and to what extent, if any, one co-

defendant, Dr. Pannu individually, ever agreed to arbitrate."6                          I
agree.     But the parties' contract specifies that the arbitrator,

not a court, must answer these questions.                      The contract could

not   be   clearer:          "arbitrability        disputes,     including     disputes

over the . . . existence, [and] validity . . . of the agreement

under which Arbitration is sought, and who are proper Parties to

the   Arbitration,          shall   be   submitted    to   and    ruled   on    by   the

Arbitrator."           Great Lakes and Dr. Pannu challenge the existence


      6
          Majority op., ¶54.


                                            6
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and     validity      of       the   Operating     Agreement       in     light     of     the

Redemption Agreement.                The parties agreed the arbitrator would

decide this issue.              Dr. Pannu disputes being a proper party to

the arbitration.            The parties agreed the arbitrator would decide

this issue too.            Contrary to the majority's minimization of the

arbitrator's        authority         to     decide     arbitrability         as    a     mere

"presumption,"7           it    is    the     parties'    contract        that      requires

arbitrability to be decided by the arbitrator.                          The court errs

in interpreting Chapter 788 to require stripping the arbitrator

of his contractual authority; nothing in Chapter 788 empowers

the judiciary to override the parties' contracted method for

resolving this precursory issue.

      ¶137 Contrary            to    the    majority's        misconstruction        of    the

issue presented, this case is not about precluding parties from

entering     into     subsequent           agreements    or    altering    the      parties'

preexisting choice of forum for dispute resolution.                                Certainly

parties are free to change their minds and revoke, cancel, or

otherwise invalidate the original agreement to arbitrate.                                  But
any decision to undo a contractual agreement to arbitrate must

be mutual.      If the parties did not dispute the formation of the

Redemption Agreement or its applicability to each of them, the

court     may   not    be      considering      arbitration       at    all,     given     the

unchallenged        and     fully     executed     Redemption       Agreement        with    a

merger clause.             See Town Bank v. City Real Estate Dev., LLC,

2010 WI 134, 330 Wis. 2d 340, 793 N.W.2d 476.                           A merger clause


      7
          Majority op., ¶54.


                                               7
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in a contract executed only by the party seeking to enforce that

merger clause in order to evade a prior agreement to arbitrate

does not have the same superseding effect when another party

disputes its formation and application to all parties.8

      ¶138 This court has repeatedly protected parties' freedom

to   contract.      Id.,   ¶33    (collecting    cases).      Our    goal    when

interpreting contracts freely entered into by the parties "is to

ascertain the true intentions of the parties as expressed by the

contractual language."           Id. (quoted source omitted).            "[T]he

best indication of the parties' intent is the language of the

contract itself" and unless the contract is ambiguous, we stick

to "the four corners of the contract, without consideration of

extrinsic     evidence."     Id.    (quoted    source   omitted).     The    only

undisputed,      freely-made     contract     before    the   court     is   the

Operating Agreement and its plain language says the parties want

"any and all" disputes about its existence or validity to be

resolved by the arbitrator.         I would honor the parties' contract

by   enforcing     the     arbitration      provision    in   the     Operating
Agreement.

      ¶139 The majority opinion quotes "fundamental principles of

freedom to contract" and acknowledges the "utmost liberty of

contracting" and holds these rights "sacred,"9 but then proceeds


      8
       Not only do Midwest and NEA challenge the formation of the
Redemption Agreement, they also dispute the applicability of its
merger clause to NEA based on language restricting its scope to
Dr. Pannu and Midwest.
      9
          Majority op., ¶5, ¶39.


                                       8
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to disregard the plain text of the parties' Operating Agreement

and to ignore well-established arbitration principles supporting

freedom     of    contract      rights.         The       majority    invents       a     new

procedure    for    circuit      courts    to    follow       when    a   party      to    an

existing     contract      requiring      arbitration         contends       the    fully-

executed first contract is void due to the parties' negotiations

over a second contract, which one party signed but the other

party refused to sign.             This unprecedented judicial intrusion

directs courts to ignore the contractual conferral of authority

on the arbitrator to decide arbitrability, and instead conduct a

full-blown court trial over the existence and validity of the

fully-executed contract containing the arbitration clause.                               As a

result, the parties who previously decided to resolve disputes

out-of-court       will    be    subjected      to    a    circuit     court    calendar

delaying any hope of resolving the merits of the non-compete

allegations until a factfinder resolves this preliminary dispute

in a forum the parties previously rejected in favor of private

arbitration.
      ¶140 In      reaching      this   result,       the     majority       erroneously

distinguishes and "clarifies," but does not overrule, the only

two   Wisconsin        cases     addressing      similar        factual        scenarios:

Cirilli, 322 Wis. 2d 238, and Mortimore, 344 Wis. 2d 459.

      ¶141 Cirilli        involved a dispute between insurance agents

and their former employer, Country Insurance.                        322 Wis. 2d 238,

¶2.    The       Agents'     written    agreements          with     Country    required

binding arbitration for "any claim or controversy relating to or
arising    out    of   the      relationship     between       the     Agent       and    the

                                           9
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Companies."      Id., ¶3.        The Agents sued Country in circuit court

claiming    Country    owed      them     termination           commissions      under       the

written agreements.        Id., ¶2.           Country filed a motion to compel

arbitration of the Agents' claims.                   Id., ¶3.        The Agents argued

that a settlement agreement and release Country executed with

different    former    agents       making        similar       claims   superseded          the

arbitration provision.           Id., ¶5, ¶9.            The Agents supported their

argument with the decision of an arbitrator, in a prior case

brought by different former agents, who determined the release

voided the arbitration requirement.                      Id., ¶¶6-7.           The circuit

court agreed with the              Agents' position and refused to order

arbitration.       Id.,    ¶8.         The    court       of    appeals    reversed          and

ordered the matter sent to the arbitrator for determination.

Id., ¶19.      The court of appeals held the Agents' claims for

termination      commissions        fell      squarely          within    the     agreement

requiring    arbitration         and    the       fact    that     another       arbitrator

decided the release voided similarly situated agents' agreements

with   Country    cannot      be    the      basis       for    avoiding       the    Cirilli
Agents'    contractual      language.             Id.,    ¶¶15-18.         The       court    of

appeals ruled that by concluding the release controlled, the

circuit court erroneously determined the merits of the Cirilli

Agents'    claims——a      task     assigned        to     the    arbitrator,         not     the

circuit court.     Id.

       ¶142 Cirilli    prohibits          circuit        courts    from    deciding          the

merits when the parties have agreed to arbitrate disputes, even

when the answer is obvious and even when another arbitrator has
already ruled on the merits of an identical claim involving

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different claimants.               Transferring a decision on the merits to

the circuit court usurps the freedom of contract and the mutual

decision          two   parties       made    to     have     disputes         resolved    by

arbitration.

       ¶143 What constitutes the "merits" of a case can be unclear

when        one    party     argues     a     subsequent       contract         voided    the

obligations under the original contract.                       Typically, the merits

will be the substantive allegation——here, Midwest's claim that

Dr.    Pannu       violated    his     non-compete          obligation     goes     to     the

"merits" of the dispute.                    However, the "merits" in this case

also include a determination that a subsequent contract voids

the existing contract because such a determination altogether

eliminates the non-compete claim.                     By having the circuit court

hold a trial whenever parties dispute the formation of a second

contract          (despite    the     existing       contract's    requirement            that

arbitrability           be   decided     by    the     arbitrator),        the     majority

disregards          both     the      parties'       contract      and         longstanding

arbitration rules applied by both this court and the United
States Supreme Court.10

       10
        "[A] court is not to rule on the potential merits of the
underlying claims" even if the claims appear frivolous.      AT&T
Tech., Inc. v. Commc'ns. Workers of Am., 475 U.S. 643, 649-50
(1986).    Courts "have no business weighing the merits of the
grievance, considering whether there is equity in a particular
claim, or determining whether there is particular language in
the written instrument which will support the claim." Id. Any
doubts as to whether a claim should be arbitrated should be
resolved in favor of arbitration.    Id. at 650.   "[A] challenge
to the validity of the contract as a whole, and not specifically
to the arbitration clause, must go to the arbitrator." Buckeye
Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449 (2006).


                                              11
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       ¶144 In       attempting    to    distinguish             Cirilli,   the     majority

ignores the fact that the Cirilli Agents argued the release——

which    did    not    contain     an    arbitration         clause——superseded             the

underlying       agreement        between          the     parties,       including         its

arbitration clause.          This is the very issue presented in this

case    and    the    majority     is    simply          wrong    to    state     otherwise.

Whether a subsequent agreement supersedes an earlier agreement

containing an arbitration clause is a "question[] not properly

before the court[.]"         Cirilli, 322 Wis. 2d at 253, ¶18.                         In this

case, whether the Redemption Agreement supersedes the Operating

Agreement      inquires     into    the       existence          and    validity       of   the

Operating Agreement, an issue the parties agreed the arbitrator

must decide.          The majority's interference with the arbitrator's

exclusive province threatens the freedom to contract; it does

not advance it.

       ¶145 In Mortimore, the court of appeals ordered arbitration

in a factual scenario almost identical to Midwest's.                               Mortimore

and    his    employer,    Merge,       had    a    written       employment       contract,
which contained an arbitration clause for claims "'arising out

of or relating to this Agreement.'"                      Mortimore, 344 Wis. 2d 459,

¶3.     The arbitration clause incorporated American Arbitration

Association ("AAA") rules, and required any amendments to the

contract be "in writing and signed" by Merge.                               Id.        Merge's

Compensation         Committee    and    Mortimore          were       working    on    a   new

contract for Mortimore and ostensibly reached an oral agreement

on a contract that did not contain an arbitration clause.                                   Id.,
¶7.     The new contract was never signed, however, because Merge

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learned     Mortimore       had      interfered            with    Merge's        audit,        and

Mortimore subsequently resigned at Merge's request.                                    Id., ¶8.

Mortimore sued Merge in court for breach of contract and Merge

requested    the    circuit       court      send      the       matter   to     arbitration.

Id., ¶¶9-10.       The circuit court held an evidentiary hearing and

concluded the oral contract superseded the contract requiring

arbitration.       Id., ¶10.

    ¶146 The        court      of        appeals      reversed,          ruling        that     the

question of whether the unsigned second contract superseded the

arbitration-requiring             contract           was     a      question           for      the

arbitrator.     Id., ¶21.         The court of appeals held:                     (1) deciding

the oral agreement trumped the existing employment contract is a

determination on the merits that courts "do not make," id., ¶19

(citing AT&T Tech., 475 U.S. at 648-50); and (2) the parties

unmistakably       indicated        they    wanted         the    arbitrator         to    decide

arbitrability as evidenced by the existing employment contract's

adoption of AAA arbitration rules, including Rule 7(a):                                    "[t]he

arbitrator    shall     have      the      power      to    rule    on    his     or      her   own
jurisdiction,       including        any     objection            with    respect         to    the

existence,    scope     or     validity         of    the    arbitration          agreement."

Id., ¶20 (brackets in Mortimore).

    ¶147 Mortimore           is     on    all       fours    with    the     facts        in    the

current case.        When parties have an existing contract with an

arbitration clause indicating the parties want the arbitrator to

decide    arbitrability,          whether       a    subsequent       oral      or     partially

executed agreement supersedes the existing contract is an issue
the arbitrator must decide.

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     ¶148 By     favoring       judicial     resolution          of    the     preliminary

issue of arbitrability due to the mere possibility that a second

contract might be valid, the majority ignores both the language

of the Operating Agreement as well as longstanding arbitration

principles.      Because     the        parties       dispute        whether     a    second

contract    superseded       the   first,       the    plain     text     of    the       first

contract,     requiring       that       arbitrability          be     decided       by    the

arbitrator, governs.          The parties, who agreed to resolve "any

and all disputes" by arbitration, should get the benefit of

their bargain.         Instead of honoring the parties' contract to

arbitrate, the majority sets it aside.

     ¶149 The majority hollowly recites the pivotal precept that

"[f]reedom of contract is based on the idea that individuals

should    have   the    power      to    govern       their     own    affairs       without

interference,"11       but    nevertheless        unseats        the     contractually-

chosen arbitrator in favor of a judicially-imposed circuit court

to resolve a dispute between parties who expressly rejected the

court system as a forum for dispute resolution.                         Because I would
enforce the parties' contractual expectations, I respectfully

dissent.




     11
       Majority op., ¶39 (quoting Solowicz v. Forward Geneva
Nat'l, LLC, 2010 WI 20, ¶34, 323 Wis. 2d 556, 780 N.W.2d 111).


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