                                                                  2013 WI 62

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2011AP1451
COMPLETE TITLE:         Amjad T. Tufail,
                                  Plaintiff-Respondent-Petitioner,
                             v.
                        Midwest Hospitality, LLC, d/b/a Midwest
                        Hospitality (WI),
                        LLC,
                                  Defendant-Appellant,
                        Aslam Khan, d/b/a Midwest Hospitality,
                                  Defendant.


                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 344 Wis. 2d 297, 821 N.W.2d 412
                                 (Ct. App. 2012 – Unpublished)

OPINION FILED:          July 10, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          April 11, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               William S. Pocan

JUSTICES:
   CONCURRED:
   DISSENTED:           PROSSER, J., dissents. (Opinion filed.)
   NOT PARTICIPATING:


ATTORNEYS:
       For the plaintiff-respondent-petitioner, there were briefs
by Douglas W. Rose, Lora L. LoCoco, and Rose & deJong, S.C.,
Milwaukee, and oral argument by Douglas W. Rose.


       For        the   defendant-appellant,    there   was   a   brief   by
Christopher T. Hale, Andrew G. Frank, and Hale and Wagner, S.C.,
Milwaukee, and oral argument by Christopher T. Hale.
                                                                           2013 WI 62
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.    2011AP1451

(L.C. No.   2009CV13848)

STATE OF WISCONSIN                               :            IN SUPREME COURT

Amjad T. Tufail,

             Plaintiff-Respondent-Petitioner,

      v.

Midwest Hospitality, LLC, d/b/a Midwest
                                                                        FILED
Hospitality (WI), LLC,
                                                                   JUL 10, 2013
             Defendant-Appellant,
                                                                      Diane M. Fremgen
                                                                   Clerk of Supreme Court
Aslam Khan, d/b/a Midwest Hospitality,

             Defendant.




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

remanded.          The   judgment    of   the   circuit        court     is    thereby

affirmed.



      ¶1     ANN     WALSH    BRADLEY,    J.    This     is    a    review         of   an

unpublished opinion of the court of appeals, which reversed the

circuit     court's      judgment   awarding    damages       in   favor      of    Amjad

Tufail (Tufail).         The case before us involves a contract dispute
                                                                                         No.    2011AP1451



between        the     landlord,                Tufail,         and        the     tenant,        Midwest

Hospitality,          LLC       (Midwest         Hospitality)              over    the    terms      of   a

commercial lease of property.1

        ¶2     Tufail,          the       petitioner,           asserts      that       the     court     of

appeals       erred    when          it    determined           that       Midwest       Hospitality's

early        termination         of       the     lease         was    justified          by    Tufail's

misrepresentation.                   Although       he         acknowledges         that       the   lease

unambiguously provides a representation that Midwest Hospitality
may    not     be     prevented            from    using         the       property       for     certain

specified purposes, Tufail argues that operation of a fast-food

restaurant with a drive-through is not among the purposes listed

in    the     lease.            He    further          asserts        that        all    of    the    uses

identified in the lease are permitted uses of the premises under

the City of Milwaukee zoning code.

      ¶3       Additionally, Tufail contends that the representation

was not false given that the City of Milwaukee granted a special

use     permit       allowing             the    operation            of    a     Church's        Chicken

restaurant, including the operation of a Church's Chicken fast-
food restaurant with a drive-through.

      ¶4       We conclude that the representation does not include

any     use     of    the       property          as       a    Church's          Chicken      fast-food

restaurant       with       a    drive-through.                  Additionally,            there      is   no

indication that any of the uses identified in the lease were

prevented under the City of Milwaukee zoning code.

        1
       Tufail v. Midwest Hospitality, LLC, No. 2011AP1451,
unpublished slip op. (Ct. App. Aug. 1, 2012), reversing the
circuit court, William S. Pocan, J., presiding.

                                                       2
                                                                    No.     2011AP1451



         ¶5     We further conclude that the representation was not

false because the circuit court found that Midwest Hospitality

was not prevented from using the property for the uses specified

in   the       lease,     and   its   finding     is   not   clearly      erroneous.

Therefore, Tufail did not breach the lease.                       Accordingly, we

reverse the court of appeals and remand, and the judgment of the

circuit court is thereby affirmed.

                                            I
         ¶6     The contract dispute in this case concerns the terms

of   a       commercial   lease   for   a   property    located    on     West    North

Avenue in Milwaukee, Wisconsin.                 Tufail had previously operated

a restaurant called "New York Chicken" on the property before

leasing the property to Midwest Hospitality.2

         ¶7     After     purchasing    the      property    in    2000,         Tufail

submitted a request to the City of Milwaukee Development Center

for a permit to operate a fast-food restaurant.                   His application

was denied, but Tufail appealed to the City of Milwaukee Board

of Zoning Appeals.              On November 9, 2000, the Board of Zoning
Appeals granted Tufail's request for a permit to operate a fast-

food restaurant for a ten-year period.                  Under the terms of the

permit, the New York Chicken restaurant was allowed to remain

open until 4:00 a.m.

         ¶8     Sometime before the New York Chicken restaurant ceased

operations in 2007 and again after operations ceased, Midwest

         2
       Tufail described the New York Chicken restaurant as "a
chicken place" that was similar in nature to a Church's Chicken
restaurant but with a different name.

                                            3
                                                                 No.    2011AP1451



Hospitality    approached     Tufail    and     inquired   about       opening    a

Church's    Chicken     restaurant      on    the    property.         Prior     to

negotiating the lease, Midwest Hospitality visited the former

New York Chicken restaurant and conducted a walk-through of the

property.      It then prepared a written lease and the parties

negotiated its terms.

     ¶9     Tufail and Midwest Hospitality formally executed the

lease in March 2008.         It was to be in effect for a five-year
period beginning on April 1, 2008 and ending on March 31, 2013.

Midwest Hospitality agreed to pay rent in the amount of $35,000

for the first year, which was to be paid in equal installments

on a monthly basis.

     ¶10    Paragraph    5   of   the       lease   specified    the     intended

purposes for which the property may be used:

    5. Use of Premises.     Tenant may use and occupy the
    Premises for any lawful purposes, including, but not
    limited   to, the    retail   sales, consumption, and
    delivery of food and beverages which shall include,
    but not be limited to, Chicken products, Fish
    products, bread products, salads, sandwiches, dessert
    items, promotional items, and any other items sold by
    any Church's Chicken store.
Tufail also made representations in Paragraph 33 of the lease,

which provide as follows, in relevant part:

     Landlord represents and warrants to Tenant that:

     . . . .

    (g) no existing restrictions, building and zoning
    ordinances, or other laws or requirements of any
    governmental authority prevent the use of the Premises
    for the purposes set forth in Paragraph 5 . . . .


                                        4
                                                                No.     2011AP1451


       Landlord hereby acknowledges that Tenant is relying
       upon   all  of   the   foregoing  representations  and
       warranties in executing this Lease and that matters so
       represented and warranted are material ones, and
       Landlord accordingly agrees that any misrepresentation
       or breach of such warranty will be reason for Tenant
       to terminate this Lease.
Furthermore, the lease contained an integration clause providing

that   the   written   lease   set    forth      all   understandings    between

Tufail and Midwest Hospitality:

       This Lease, the exhibits, rider and addendum, if any,
       attached hereto and forming a part hereof set forth
       all the covenants, promises, agreements, conditions,
       terms, provisions and understandings by and between
       the Landlord and Tenant concerning the Premises.
       There are no other such matters, whether oral or
       written, between Landlord and Tenant other than are
       set   forth   herein.      No   change,  modification,
       alteration, amendment, addition or deletion to this
       Lease shall be binding upon Landlord or Tenant unless
       it is in writing and executed by the person to be so
       charged with the same.      Landlord and Tenant have
       negotiated the terms of this Lease; therefore, this
       Lease shall not be interpreted or construed against or
       in favor of any party.
       ¶11   After   the   lease    was       executed,   Midwest   Hospitality

entered the property and began renovation.                  It completed some
initial preparation work, but did not ultimately complete the

renovations.
       ¶12   The renovation work ended in May 2008 when Midwest

Hospitality was informed that it needed to obtain a special use
permit in order to operate a fast-food restaurant with a drive-

through at the property.           A special use permit is a particular
type of permit required by the City of Milwaukee in order to use

a property for certain purposes under the zoning code.                  Although



                                          5
                                                                            No.    2011AP1451



a sit-down restaurant3 is classified as a "Permitted Use," a

fast-food restaurant4 is classified as a "Limited Use" requiring

a special use permit.

      ¶13    Upon being advised of the permit requirement, Midwest

Hospitality     applied       for   a   special      use     permit        to     operate    a

Church's Chicken fast-food restaurant with a drive-through on

the   property.        The    application      was     met          with   opposition       by

community     groups        that    opposed    adding           a       Church's    Chicken
restaurant to the neighborhood.5

      ¶14    Despite the opposition, the City of Milwaukee Board of

Zoning      Appeals        ultimately     approved         Midwest          Hospitality's

application    for     a    special     use   permit       in       a   written    decision

issued on September 22, 2008.             The special use permit was issued



      3
       A "sit-down restaurant" is defined in the zoning code as
"a restaurant where the food or beverages sold are consumed at
tables located on the premises, where taking food or beverages
from the premises is purely incidental, where food or beverages
are normally served utilizing nondisposable containers and
utensils and where the consumption of food or beverages in
vehicles on the premises in which the building is located does
not regularly occur . . . ."
      4
       A "restaurant, fast-food/carryout" is defined in the
zoning code as "a restaurant other than a sit-down restaurant
where the manner of preparation, packaging and serving of food
or beverages encourages their consumption outside the building."
      5
       Midwest   Hospitality    in  its    brief  describes  those
individuals or groups opposing its application as "neighbors,
physicians, Walnut     Way   Conservation   Corporation   (a local
neighborhood   association)     and   even    a   Wisconsin  State
Representative."



                                          6
                                                              No.     2011AP1451



subject to certain conditions, which are set forth in relevant

part as follows:

     10. That this use, both fast-food/carry-out and drive-
     through, closes by 9:00 p.m.

     11. That this Special Use is granted for a period of
     one (1) year, commencing with the date hereof.
At trial, a Midwest Hospitality representative testified that

the conditions in the special use permit changed the business's

profitability forecast and rendered the operation of a Church's

Chicken restaurant on the property not worth the investment:

     Q. And now could you have run the Church's Chicken at
     1635 West North with restrictions on the evening hours
     to 9:00 p.m. and a new review by [the Board of Zoning
     Appeals] every year?

     A. No way. It would just be impossible. It wouldn't
     even be worth the investment. . . . [The 9:00 closing
     restriction] changed our forecast that we had in mind
     for the profitability of this business . . . .
     ¶15   After    the    special   use   permit   was   approved,    Midwest

Hospitality notified Tufail that it would stop paying rent.                  It

sent a letter to Tufail arguing that it was not responsible for
the lease payments because a special use permit was required to

operate a Church's Chicken fast-food restaurant with a drive-

through.    It     therefore    contended    that   Tufail   made     a   false

representation and that it was entitled to terminate the lease

before the five-year term expired.

    ¶16    Tufail, in turn, commenced the present action.                    He

alleged a breach of contract claim, an anticipatory breach of

contract claim, and a claim for breach of the duty of good faith

and fair dealing.         Midwest Hospitality later pled counterclaims

                                      7
                                                                         No.    2011AP1451



alleging a breach of contract, deceptive advertising contrary to

Wis. Stat. § 100.18 (2009-10), and unjust enrichment.

      ¶17    The    circuit    court    presided      over     a    three-day        bench

trial, which took place in March 2011.                At the conclusion of the

trial, the circuit court made findings of fact relating to the

claims     advanced    in    the   pleadings.      It       found   that       the   "vast

majority     of    Church's    Chicken       restaurants       have      drive-through

operations, but not all."             Additionally, "Midwest Hospitality's
application for a special use permit to use the subject property

for a fast-food restaurant with a drive-through was approved by

the City of Milwaukee," and it was not "prevent[ed], in any way,

[] from opening a Church's Chicken restaurant at the subject

property with a drive-through and as a fast food restaurant."6

      ¶18    Turning to examine the text of the lease, the circuit

court determined that it unambiguously failed to set forth any

use   as    a     fast-food    restaurant      with     a    drive-through.             It

concluded that "Midwest Hospitality was able to use the subject

property     for    its    intended    use   as   set   forth       in    the    lease."
Furthermore, it determined that "even if the subject lease was

interpreted to include as an intended use a fast food restaurant

with a drive-through, that intended use was allowed by the City

of Milwaukee."            Ultimately, there was "no evidence presented

that [Tufail's] representations and warranties were not true."




      6
       Additional discussion of the circuit court's findings of
fact may be found at ¶¶39-41, infra.

                                         8
                                                                      No.    2011AP1451



      ¶19   Because Tufail did not breach the lease, the circuit

court concluded that Midwest Hospitality's early termination of

the lease was itself a breach of contract.                          It proceeded to

enter a judgment awarding Tufail $90,033.21 in damages.

      ¶20   Midwest Hospitality appealed and the court of appeals

reversed the circuit court.               Tufail v. Midwest Hospitality, LLC,

No. 2011AP1451, unpublished slip op. (Ct. App. Aug. 1, 2012).

It   concluded     that    the    "early        termination    of    the    lease    was
justified by Tufail's misrepresentation," stating that Tufail's

representation      that      "no        zoning     laws     restricting      [Midwest

Hospitality's]      operation          of   a     Church's     Chicken       fast-food

restaurant on the leased premises" was "false from the moment

the parties signed the lease."              Id., ¶¶1, 9.
      ¶21   The court of appeals rejected Tufail's argument that

he did not make a false representation because the lease does

not set forth a use as a fast-food restaurant with a drive-

through.    Id., ¶8.        It concluded that by reference to "Church's

Chicken," Paragraph 5 of the lease "allowed the operation as a

Church's Chicken" and that it was "not necessary for the use

provision   in     the    lease     to    include      additional    words    allowing

operation of a fast-food restaurant.                    A Church's Chicken is a

fast-food restaurant."           Id.

                                            II

      ¶22   This    case    requires        us    to   determine     whether      Tufail

breached    the    lease,    a    written        contract,    by    making    a    false

representation.          The interpretation of a contract presents a


                                            9
                                                                                     No.      2011AP1451



question        of     law,     which       we    determine            independently           of     the

conclusions          rendered       by     the    circuit         court       and    the      court    of

appeals.        Ehlinger v. Hauser, 2010 WI 54, ¶47, 325 Wis. 2d 287,

¶47, 785 N.W.2d 328.

        ¶23     Here,    the       circuit       court       presided         over    a     three-day

bench trial and made findings of fact.                                 We accept the circuit

court's       findings        of    fact    unless       they      are    clearly          erroneous.

Phelps v. Physicians Ins. Co. of Wisconsin, Inc., 2009 WI 74,
¶34, 319 Wis. 2d 1, 768 N.W.2d 615.

                                                 III

        ¶24     The    sole        question      presented          on    review         is     whether

Tufail breached the lease by making a false representation.                                           The

lease      is   a     written       contract      and       our    analysis         is     controlled

entirely by well-established canons of contract interpretation.

Accordingly, as a preface to addressing the question presented,

it   is    helpful       to    review       those      basic       principles         of      contract

interpretation relevant to the issue before us.

      ¶25       Contract interpretation generally seeks to give effect

to   the      parties'       intentions.              Seitzinger         v.    Community        Health

Network,        2004    WI    28,     ¶22,       270    Wis.      2d     1,    676    N.W.2d        426.

However,        "subjective         intent       is    not    the      be-all       and       end-all."

Kernz v. J.L. French Corp., 2003 WI App 140, ¶9, 266 Wis. 2d

124, 667 N.W.2d 751.                     Rather, "unambiguous contract language

controls contract interpretation."                       Id.

        ¶26     Where     the        terms       of     a     contract          are        clear      and

unambiguous, we construe the contract according to its literal


                                                  10
                                                                      No.     2011AP1451



terms.       Maryland Arms Ltd. Partnership v. Connell, 2010 WI 64,

¶23, 326 Wis. 2d 300, 786 N.W.2d 15 (quoting Gorton v. Hostak,

Henzl & Bichler, S.C., 217 Wis. 2d 493, 506, 577 N.W.2d 617

(1998)).       "We presume the parties' intent is evidenced by the

words they chose, if those words are unambiguous."                          Kernz, 266

Wis. 2d 124, ¶9.

       ¶27    If the terms of the contract are ambiguous, evidence

extrinsic to the contract itself may be used to determine the
parties' intent.         Seitzinger, 270 Wis. 2d 1, ¶22.                  "A contract
provision is ambiguous if it is fairly susceptible of more than

one construction."            Mgm't Computer Servs., Inc. v. Hawkins, Ash,

Baptie & Co., 206 Wis. 2d 158, 177, 557 N.W.2d 67 (1996).

       ¶28    Contract language is construed according to its plain

or ordinary meaning, Huml v. Vlazny, 2006 WI 87, ¶52, 293 Wis.

2d   169,    716     N.W.2d    807,   consistent     with    "what    a     reasonable

person       would     understand      the     words    to     mean         under   the

circumstances."        Seitzinger, 270 Wis. 2d 1, ¶22.               For a business

contract, that is "the manner that it would be understood by

persons in the business to which the contract relates." Columbia

Propane, L.P. v. Wisconsin Gas Co., 2003 WI 38, ¶12, 261 Wis. 2d

70, 661 N.W.2d 776.

       ¶29    The court construes contracts "as they are written."

Id., ¶12.       Ultimately, "the office of judicial construction is

not to make contracts . . . but to determine what the parties

contracted to do."            Marion v. Orson's Camera Centers, Inc., 29

Wis.   2d    339,     345,    138   N.W.2d    733   (1966)   (quoting        Wisconsin


                                         11
                                                                        No.     2011AP1451



Marine & Fire Ins. Co. Bank v. Wilkin, 95 Wis. 111, 115, 69 N.W.

354 (1897).

        ¶30    Additionally,        as    this    court   recently    stated,        courts

may not consider evidence of prior or contemporaneous oral or

written agreements between the parties if a contract is fully

integrated:

      A contract that represents the final and complete
      expression of the parties' agreement is considered
      fully "integrated." If the contract is integrated,
      absent the existence of fraud, duress, or mutual
      mistake, the court construing the contract may not
      consider evidence of any prior or contemporaneous oral
      or written agreement between the parties.
Town Bank v. City Real Estate Development, LLC, 2010 WI 134,
¶37, 330 Wis. 2d 340, 793 N.W.2d 476.                       If 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, even as to the

issue     of    integration."             Id.,    ¶39;    Peterson    v.    Cornerstone

Property Development, LLC, 2006 WI App 132, ¶31, 294 Wis. 2d

800, 720 N.W.2d 716 (quoting Ziegler Co. v. Rexnord, Inc., 139

Wis. 2d 593, 608-09 n.11, 407 N.W.2d 873 (1987)) (courts may not

consider extrinsic evidence to "vary or contradict the terms of

a writing" when the contract is fully integrated).

        ¶31    In   this    case,    as    quoted    above,    the    lease     at issue

contains       an   integration      clause.        It    states     that     the    entire

agreement between the parties has been reduced to writing.                                It

plainly        states      without        qualification      that     "all"         of   the

understandings between the parties are set forth in the lease


                                             12
                                                                          No.   2011AP1451



and any attached exhibits, riders, or addendums.                          Therefore, we

are guided by the text of the lease, not by any extrinsic,

unwritten      understandings         that    may    have    existed       between    the

parties.7       Id.; Peterson, 294 Wis. 2d 800, ¶31 (quoting Ziegler

Co., 139 Wis. 2d at 608-09 n.11).

      ¶32      Having     reviewed     the        relevant   canons        of   contract

interpretation, we turn now to address the question of whether

Tufail breached the lease by making a false representation.                           Our
inquiry hinges first on the meaning of Tufail's representation

as   it   is    written    in   the    lease,       and   second,    on    whether    the

representation      is     false   under      the    facts   of     this    case.     The

representation states as follows:

      Landlord represents and warrants to Tenant that:

      . . . .



      7
       Contrary to the unambiguous integration clause, Midwest
Hospitality urges us to consider the parties' unwritten
"understanding of Church's Chicken" as a fast-food restaurant.
It contends that "Church's Chicken was understood to be a fast-
food restaurant by all parties," and that understanding is
"inherent in interpreting [the lease's references to] 'Church's
Chicken' . . . regardless of the absence of 'fast-food' in the
Use of Premises provision." In effect, it contends that "there
is no such thing" as a sit-down Church's Chicken restaurant.

     Here, however, the parties have expressly stated that
"[t]his Lease . . . set[s] forth all the . . . understandings by
and between the Landlord and Tenant concerning the Premises."
In light of the parties' unambiguous statement that no
additional understandings existed between them concerning the
lease,   we    decline    to  consider   Midwest   Hospitality's
"understanding of Church's Chicken" as a particular type of
fast-food restaurant when such an understanding is not presented
in the text of the lease.

                                             13
                                                                                    No.   2011AP1451


       (g) no existing restrictions, building and zoning
       ordinances, or other laws or requirements of any
       governmental authority prevent the use of the Premises
       for the purposes set forth in Paragraph 5 . . . .
Paragraph 5 of the lease, in turn, provides that:

       5.   Use of Premises.    Tenant may use and occupy the
       Premises for any lawful purpose, including, but not
       limited   to, the    retail   sales,  consumption, and
       delivery of food and beverages which shall include,
       but not be limited to, Chicken products, Fish
       products, bread products, salads, sandwiches, dessert
       items, promotional items, and any other items sold by
       any Church's Chicken store.
       ¶33    Tufail       acknowledges          that     the           lease       unambiguously

provides      that    Midwest      Hospitality          may    not          be    prevented       from

using the property for certain specified purposes.                                   He advances,

however, that a fast-food restaurant with a drive-through is not

among the "purposes set forth in Paragraph 5."                                    Furthermore, he

asserts      that    all    of    the    uses     identified            in       Paragraph    5   are

permitted      uses    of    the       premises      under     the          City    of    Milwaukee

zoning code.         Given that the City of Milwaukee granted a special

use    permit       allowing       the    operation           of        a    Church's        Chicken

restaurant, including the operation of a Church's Chicken fast-

food   restaurant          with    a    drive-through,             he       contends      that    the

representation was not false.

       ¶34    Midwest        Hospitality             likewise               acknowledges          the

unambiguous text of the lease, but further argues that the lease




                                                14
                                                                     No.   2011AP1451



incorporates the fact that "Church's Chicken was understood to

be a fast-food restaurant by all parties."8

       ¶35       We construe the contract as it is clearly written.

Midwest Hospitality may not be prevented from using the property

for    the       purposes      specifically     identified     in    Paragraph    5.

Paragraph 5 then identifies the various products which may be

consumed, sold, distributed, or otherwise used on the property.

       ¶36       Among   the    products   identified    in     Paragraph     5   is
counted "any other items sold by any Church's Chicken store."

Midwest Hospitality argues, and the court of appeals concluded,

that       the   reference     to   a   "Church's   Chicken"    in    Paragraph    5

requires that a Church's Chicken fast-food restaurant with a

drive-through may be operated on the property.                      We reject that

argument.



       8
       Tufail states in his brief that "[t]he lease is
unambiguous," while Midwest Hospitality argues that Tufail
"unambiguously warrantied that there were no zoning restrictions
preventing . . . the contemplated use of the Property."    Their
respective "unambiguous" constructions of the lease diverge
greatly in scope.

     That   the  parties   have  construed   the   representation
differently does not alone render it ambiguous.      Ambiguity is
found where a contract "is fairly susceptible of more than one
construction," not necessarily where different constructions are
argued.   Mgm't Computer Servs., Inc. v. Hawkins, Ash, Baptie &
Co., 206 Wis. 2d 158, 177, 557 N.W.2d 67 (1996).          We must
interpret the lease "as it stands, even though the parties may
have placed a different construction on it."      Cernohorsky v.
Northern Liquid Gas Co., 268 Wis. 586, 593, 68 N.W.2d 429
(1955); see also Brew City Redevelopment Group, LLC v. The
Ferchill Group, 2006 WI App 39, ¶3, 289 Wis. 2d 795, 714 N.W.2d
582.

                                           15
                                                                       No.    2011AP1451



      ¶37   A    mere   reference    to   products         used   by    a    "Church's

Chicken store" does not represent that Midwest Hospitality may

operate a Church's Chicken fast-food restaurant with a drive-

through.      The lease plainly provides that Midwest Hospitality

may   not   be   prevented    from   using         the    property     for    certain,

specified    purposes.        Notably     absent         from   that   list    is   any

requirement      that   the   property       may    be     used   as    a    fast-food

restaurant with a drive-through.9
      ¶38   Accordingly, we conclude that Tufail's representation

requires simply that Midwest Hospitality may not be prevented

from using the property for the purposes specifically identified

in Paragraph 5.         Having ascertained the plain meaning of the

representation, all that remains is to determine whether the

representation is false under these facts.


      9
       Likewise, the lease does not set forth any requirements
regarding the conditions specified in the special use permit
relating to the hours of operation or the time period in which
any permit must be renewed. Despite the lack of reference to a
fast-food restaurant or to the conditions set forth in the
special use permit, the dissent interprets the lease to mean
that Tufail "warrant[ied] that there were no zoning requirements
with which Midwest had to comply in order to sell Church's
Chicken products in a fast-food restaurant." Dissent, ¶78; see
also dissent, ¶¶94, 101.

     In relying on words that cannot be found in the lease, the
dissent appears to rewrite it. The representation in the lease
simply states that no existing restrictions, building and zoning
ordinances, or other laws or requirements prevent Midwest
Hospitality from using the property for the purposes identified
in Paragraph 5.    It focuses on whether Midwest Hospitality is
prevented from using the property for certain purposes, not on
whether   Midwest   Hospitality had   to  comply   with  various
governmental regulations.

                                        16
                                                                         No.    2011AP1451



       ¶39     In    this     case,    the     circuit     court       made     extensive

findings of fact at the conclusion of a three-day bench trial.

It     found      that   "[t]he       vast    majority       of    Church's      Chicken

restaurants have drive-through operations, but not all."                            There

was "no evidence" showing that Tufail knew about the many other

Church's Chicken restaurants, whether or not they had drive-

through        operations,       or    about       Church's       Chicken       franchise

requirements such as closing times.
       ¶40     The circuit court also found that the parties "entered

into a written lease in March of 2008," which was, by its own

terms, to last for a five-year period.                         After the lease was

signed      and     Midwest    Hospitality        took   occupancy,      it    discovered

that    a    special     use    permit       was    required      from   the     City   of

Milwaukee "so that it could have a drive-through as part of the

restaurant."

       ¶41     Furthermore,      the    circuit      court     found     that    "Midwest

Hospitality's application for a special use permit to use the

subject property for a fast food restaurant with a drive-through
was approved by the City of Milwaukee."                        Although it observed

that the approval "was not exactly as Midwest Hospitality may

have wanted" due to the conditions in the special use permit, it

found that Midwest Hospitality was not prevented, "in any way,

[] from opening a Church's Chicken restaurant at the subject

property."          The special use permit allowed operation "with a

drive-through and as a fast food restaurant":

       But the special use permit as approved by the City of
       Milwaukee did not prevent, in any way, Midwest

                                             17
                                                                           No.    2011AP1451


      Hospitality from opening a Church's Chicken restaurant
      at the subject property with a drive-through and as a
      fast food restaurant. Therefore, the Court finds that
      even if the subject lease was interpreted to include
      as an intended use a fast food restaurant with a
      drive-through, that intended use was allowed by the
      City of Milwaukee. The representations and warranties
      of Mr. Tufail contained in the lease itself are for
      the intended use as specifically set forth in the
      lease in paragraph five, and there was no evidence
      presented that those representations and warranties
      were not true.
Accordingly, the circuit court determined that "the claim that

Mr. Tufail made misrepresentations was not established."
      ¶42    No one argues that the findings of the circuit court,

to the extent that they set forth the dispositive facts of this

case, are clearly erroneous.                 Phelps, 319 Wis. 2d 1, ¶34.                   We
likewise         see    no    indication    that     its    findings        are    clearly

erroneous.         Therefore, we are bound to accept those findings,

including the circuit court's finding that Midwest Hospitality

was   not    in        fact   prevented    from    opening     a   Church's         Chicken

restaurant at the subject property.

      ¶43        Given the lack of any reference in the lease to a
fast-food         restaurant      with      a    drive-through,        there        is     no

indication in the facts that the uses of the property, as they

are stated in Paragraph 5 of the lease, were prevented.                              There

is no indication that any of the uses specified in Paragraph 5

cannot      be    performed      at   a    sit-down    restaurant,          which     is    a

permitted use under the City of Milwaukee zoning code.                             Rather,

the fact         that    Midwest Hospitality         was    granted    a     special use

permit specifically allowing use of the property as a Church's

Chicken     restaurant         soundly     refutes    the    premise       that    Midwest

                                            18
                                                                           No.    2011AP1451



Hospitality was prevented from using the property for any of the

purposes stated in Paragraph 5.

        ¶44    We further observe that even if we accepted Midwest

Hospitality's          argument         that      there         is    an     "undisputed

understanding         of   Church's     Chicken"      as    a   fast-food        restaurant

with a drive-through and that the representation incorporates

that "undisputed understanding," the representation is still not

false under these facts.               The circuit court expressly found that
when     the    special     use    permit      was    granted        by    the    City   of

Milwaukee, Midwest Hospitality was allowed to operate a Church's

Chicken fast-food restaurant with a drive-through.

        ¶45    The facts of this case indicate that although Midwest

Hospitality was not prevented from using the property for the

purposes identified in Paragraph 5 of the lease, those purposes

alone    did    not    necessarily       ensure      that   the      proposed     Church's

Chicken restaurant was worth Midwest Hospitality's investment.

However, as the circuit court observed, "[t]here was nothing to

prevent Midwest Hospitality from putting contingencies in the
lease about hours of operation, a drive-through or anything else

deemed necessary.           It did not."         We interpret only the contract

to which the parties agreed.              Marion, 29 Wis. 2d at 345.

        ¶46 Ultimately, the result of this case is compelled by

basic principles of contract interpretation and by the circuit

court's       findings     of   fact    following      a    three-day      bench    trial.

Tufail explicitly represented in paragraph 33 of the lease that




                                            19
                                                                                No.        2011AP1451



Midwest       Hospitality        would    not        be   prevented        from        using      the

property for the listed purposes.

     ¶47       The circuit court found that there was no evidence to

support       the     argument    that        the     representations               were    untrue.

Additionally,          it     found      that        Midwest       Hospitality             was    not

prevented       "in     any      way"     from        opening        a    Church's          Chicken

restaurant at the leased property.

          •    "The    representations           and      warranties           of    Mr.     Tufail
               contained in the lease itself are for the intended use

               as specifically set forth in the lease in paragraph

               five, and there was no evidence presented that those

               representations and warranties were not true."

          •    "[T]he special use permit as approved by the City of

               Milwaukee       did      not     prevent,        in       any    way,        Midwest

               Hospitality from opening a Church's Chicken restaurant

               at the subject property with a drive-through and as a

               fast food restaurant."

     ¶48       Importantly, the circuit court specifically found that
even if the lease was interpreted to include uses not explicitly

listed    in    its     terms——uses       as     a    fast-food          restaurant         with    a

drive-through——that the evidence showed that such uses were not

prevented.

          •    "Therefore, the Court finds that even if the subject

               lease was interpreted to include as an intended use a

               fast     food     restaurant           with     a     drive-through,              that

               intended use was allowed by the City of Milwaukee."


                                                20
                                                                  No.     2011AP1451



     ¶49     There has been no showing that the circuit court's

dispositive findings of fact are clearly erroneous.                       No party

has even attempted to advance such an argument.                 Accordingly, we

conclude that Tufail did not breach the lease by making a false

representation.

                                      IV

     ¶50     In sum, we conclude that the representation does not

include any use of the property as a Church's Chicken fast-food
restaurant    with   a   drive-through.          Additionally,       there   is   no

indication that any of the uses identified in the lease were

prevented under the City of Milwaukee zoning code.

     ¶51    We further conclude that the representation was not

false because the circuit court found that Midwest Hospitality

was not prevented from using the property for the uses specified

in   the   lease,    and   its    finding    is     not   clearly       erroneous.

Therefore, Tufail did not breach the lease.                     Accordingly, we

reverse the court of appeals and remand, and the judgment of the

circuit court is thereby affirmed.
     By    the   Court.—The   decision      of    the   court   of      appeals   is

reversed and remanded.           The judgment of the circuit court is

thereby affirmed.




                                      21
                                                                          No.       2011AP1451.dtp


      ¶52      DAVID    T.    PROSSER,       J.      (dissenting).              Amjad       Tufail

(Tufail) and Midwest Hospitality, LLC (Midwest) entered into a

lease in which Tufail unambiguously warranted that there were no

local ordinances that would prevent Midwest from operating a

fast-food Church's Chicken restaurant on Tufail's property.                                   The

majority       opinion    concludes         that     Tufail     did      not       breach     this

warranty because the lease did not define "Church's Chicken" as

a fast-food restaurant.              However, the only reasonable meaning of

"Church's Chicken" is a fast-food restaurant.

      ¶53      Even if the lease were deemed ambiguous, the extrinsic

evidence       demonstrates       that      Church's     Chicken          is       a     fast-food

restaurant, and both parties were aware of that fact when they

signed      the      lease.       Tufail's         warranty        that       no       ordinances

prevented the operation of a Church's Chicken was false because

the Milwaukee zoning code requires any freestanding fast-food

restaurant to          have a     special      use    permit.           Therefore,          Tufail

breached the lease.

      ¶54      The     majority      opinion       employs     a    sterile,             technical

interpretation of the lease that abandons the basic principles

of contract interpretation.                  When interpreting a contract, the

court's goal has always been to effect the intent of the parties

as   it   is      expressed     in    the    language     of       the    contract.           The

importance        of   upholding      this     principle       cannot          be      overstated

because people in business                  use     contracts      to     try       to   minimize

uncertainty in relation to their reasonable expectations.

      ¶55      Parties generally            enter    agreements          to    advance their

economic interests.            Risks, of course, are inevitable.                           But if

                                               1
                                                                         No.       2011AP1451.dtp


one party is able to frustrate the basic purpose of a contract

through        an    unreasonable          interpretation           of   its        terms     and

commitments, instability will follow, and we will be left with a

system of law that rewards the more cunning party and disregards

mutual        intent.           Because    the       majority       opinion    supports       an

implausible interpretation of the lease contract in this case, I

must respectfully dissent.

                                                 I

        ¶56    In        2000     Tufail     purchased          a     property         with    a

freestanding building located at 1635 West North Avenue (the

Property) in Milwaukee.                 The Property was operated as a New York

Chicken        fast-food         restaurant,          and     Tufail     continued          that

operation until the fall of 2007.                           The Property had formerly

been a Church's Chicken.                  In fact, Tufail later testified that

"it was an old design Church's Chicken which [he] was running."

Tufail    was       not    inexperienced         in    the   restaurant        business;      he

owned four other restaurants.

        ¶57    When he acquired the Property in 2000, Tufail wanted

to continue operating the fast-food restaurant.                           His request was

denied by a city plan examiner.                       Tufail was told that a fast-

food restaurant was a special use under the zoning code and he

would    need       to    obtain    a     special      use   permit.          He     eventually

acquired a ten-year special use permit from the Milwaukee Board

of Zoning Appeals (BOZA).                   When Tufail temporarily closed the

restaurant in or about October of 2007, he had approximately

three years left on his ten-year special use permit before it

would have to be renewed.

                                                 2
                                                             No.    2011AP1451.dtp


     ¶58   Midwest    approached       Tufail   about   opening      a   Church's

Chicken restaurant at the Property both before and after Tufail

shut down operation of his New York Chicken.                       Midwest is a

corporate entity that operates Church's Chicken restaurants and

is owned by Aslam Khan (Khan).              Munshi Ali, a Church's Chicken

manager at a different location, approached Tufail four or five

times and stated that Khan wanted to lease Tufail's property to

operate a Church's Chicken.           Khan himself eventually visited the

Property   with   several     other    people    affiliated    with      Church's

Chicken.    Khan     stated   that     he    owned   many   Church's     Chicken

restaurants in the Midwest and said that Tufail's property value

would go up if Church's Chicken moved in.

     ¶59   Two or three days after Khan visited the Property,

Khan sent an agent, Tariq Malik (Malik), to Tufail with a lease

drafted by Midwest.     Malik and Tufail went to Tufail's attorney,

who made some changes to the lease.              However, the attorney did

not alter Paragraph 5, which contained the provisions regarding

the use of the premises.         At some point before he signed the

lease, Tufail visited a Church's Chicken at another location to

see how Midwest would alter the Property.

     ¶60   Tufail and Midwest entered into a five-year lease (the

Lease) for the Property in March 2008.               The "Use of Premises"

section in Paragraph 5 of the Lease stated:

         Tenant may use and occupy the Premises for any
    lawful purpose, including, but not limited to, the
    retail sales, consumption, and delivery of food and
    beverages which shall include, but not be limited to,
    Chicken products, Fish products, bread products,
    salads, sandwiches, dessert items, promotional items,

                                        3
                                                                   No.    2011AP1451.dtp

     and any      other    items       sold   by    any   Church's        Chicken
     store.
     ¶61   The    "Representations        and      Warranties"      section      of   the

Lease, in Paragraph 33(g), stated that the landlord represents

and warrants that "no existing restrictions, building and zoning

ordinances, or other laws or requirements of any governmental

authority prevent the use of the Premises for the purposes set

forth in Paragraph 5."

     ¶62   The     Lease        also     stated      at     the      end      of      the

"Representations          and      Warranties"            section         that        the

representations and warranties "are material ones, and Landlord

accordingly agrees that any misrepresentation or breach of such

warranty will be reason for Tenant to terminate this Lease."

    ¶63    Regarding        interpretation           of     these         provisions,

Paragraph 38 of the Lease said, "This Lease shall be interpreted

to the broadest extent possible to give full and fair meaning to

the intentions of the parties hereto." (Emphasis added.)

     ¶64   Midwest entered the Property and began remodeling it

in May 2008.        According to Midwest, the Property required a

substantial      amount    of    cleaning     and    repair       work.       However,

Midwest suspended the renovation when it was denied a building

permit.

     ¶65   When Midwest applied for that permit, it was told that

it would have to apply for a special use permit to operate a

fast-food restaurant in a freestanding building.                         The examiner

for the City, Barbara Jones, stated in her denial letter that

the Milwaukee zoning code did not allow the Property to be used

as a fast-food restaurant.              Thus, Midwest unexpectedly learned

                                          4
                                                         No.   2011AP1451.dtp


that it was faced with the same obstacles with zoning ordinances

that Tufail had faced roughly eight years earlier.             What Midwest

did not know was that Tufail's business had been cited for 21

health code violations by the city in 2007 and had antagonized a

lot of nearby residents.

      ¶66   On May 29, 2008, Midwest applied for a special use

permit to operate a fast-food restaurant with a drive-through

within 150 feet of residential property.         Four sections of the

City of Milwaukee zoning code were in play.              Section 295-203-

9.f. defines a sit-down restaurant as:

      a restaurant where the food or beverages sold are
      consumed at tables located on the premises, where
      taking food or beverages from the premises is purely
      incidental, where food or beverages are normally
      served utilizing nondisposable containers and utensils
      and where the consumption of food or beverages in
      vehicles on the premises in which the building is
      located does not regularly occur, or where the
      restaurant is located within a building containing
      more than one principal use other than another
      restaurant. This term does not include a tavern.
      ¶67   Section 295-203-9.g. defines a fast-food or carry-out

restaurant as "a restaurant other than a sit-down restaurant

where the manner of preparation, packaging and serving of food
or beverages encourages their consumption outside the building.

This term does    not include   a     tavern."   Section       295-603-2.o.

requires that a fast-food restaurant be in a building containing

at least one permitted use, or the restaurant must get a special

use   permit.    Finally,   Section     295-603-2.j.3.    states    that   a

drive-through may not be located within 150 feet of residential

property.


                                    5
                                                                             No.    2011AP1451.dtp


       ¶68    Midwest's          intended         use       of         the     Property          was

inconsistent with the definition of a sit-down restaurant.                                      The

city   immediately          recognized      that        Church's        Chicken,       like      the

prior New York Chicken, is a fast-food restaurant and it would

likely expect to use the existing drive-through.                                   Thus, without

a   special     use    permit,         operating        a   Church's         Chicken       on    the

Property would violate two separate zoning code provisions: the

prohibition         against        operating            a       freestanding           fast-food

restaurant and the prohibition against having a drive-through

within 150 feet of residential property.

       ¶69    In September 2008, approximately six months after it

signed    the      Lease,    Midwest      obtained          a    special       use    permit      to

operate      the    restaurant.             However,            the     city       imposed      very

different       conditions        on    Midwest     from         the    conditions         it   had

imposed on Tufail.               Tufail obtained a ten-year permit; Midwest

received a one-year permit with no assurance of renewal.                                     Tufail

was permitted to operate until 4:00 a.m.                              Midwest could operate

its Church's Chicken until only 9:00 p.m.                                The city's permit

also required Church's Chicken to pick up all garbage within a

one-block     radius        of   the    Property.           The        president      of     Falcon

Holdings, which operates Midwest, testified that it would be too

expensive to take care of all the garbage within a block of the

Property and that a Church's Chicken would be less profitable if

it had to close at 9:00 p.m.

       ¶70    The     BOZA       chairman     stated            that     Midwest       faced       a

difficult decision whether to invest "hundreds of thousands of

dollars for a one year approval by this board.                                      There is no

                                              6
                                                                 No.     2011AP1451.dtp


guarantee of an approval after one year."                   The local community

appeared     to    share    the    chairman's       concern,       and    many     city

residents opposed the special use permit.

      ¶71    Due to the long delay in obtaining any special use

permit and then the severe restrictions added to the permit,

Midwest stopped paying rent.

                                        II

      ¶72    The    plain    language        of    the     Lease       unambiguously

demonstrates that the parties intended for Midwest to operate a

Church's    Chicken     fast-food    restaurant       on   the     Property.       The

court's     goal   in   contract    interpretation         is    to      discern   the

intentions of the parties as expressed in the language of the

contract.     Town Bank v. City Real Estate Dev., LLC, 2010 WI 134,

¶33, 330 Wis. 2d 340, 793 N.W.2d 476.                 The court will look at

the ordinary meaning of the contractual language, and if it is

unambiguous, the contractual interpretation remains within the

four corners of the contract.           Id.       A contract is ambiguous when

"it is susceptible to more than one reasonable interpretation."
Id.

      ¶73    The broad language in the Lease unambiguously suggests

that Midwest could have operated almost any lawful business on

the Property.       Paragraph 5 of the Lease states that "Tenant may

use and occupy the Premises for any lawful purpose . . . ."                          It

was not unreasonable for Midwest to assume that it could operate

a freestanding fast-food restaurant because that is a seemingly

lawful purpose and because New York Chicken had operated on the

property in that manner.            Moreover, the Lease quickly narrows

                                        7
                                                                      No.    2011AP1451.dtp


its    intent    by    adding     the    words          "including . . . the        retail

sales, consumption, and delivery of food and beverages."                                 Then

the Lease pinpoints its objective by naming "Chicken products,

Fish       products,    bread    products,          salads,       sandwiches,      dessert

items,      promotional    items,       and       any    other    items     sold    by   any

Church's Chicken store." (Emphasis added.)

       ¶74    The Lease in this case is unambiguous because it uses

"Church's Chicken" according to its ordinary meaning: a fast-

food restaurant.1          The Lease states that Midwest may use the

Property for "retail sales, consumption, and delivery of food

and          beverages          which             shall          include . . . Chicken

products . . . and any other items sold by any Church's Chicken

store."

       ¶75    Courts must interpret a contract "in the manner that

it would be understood by persons in the business to which the

contract relates."         Columbia Propane, L.P. v. Wis. Gas Co., 2003

WI 38, ¶12, 261 Wis. 2d 70, 661 N.W.2d 776.2                        In the restaurant

business, "Church’s Chicken is a highly recognized brand name in
the Quick Service Restaurant sector and is one of the largest

quick-service         chicken    concepts         in      the    [w]orld."         Church's

Chicken Celebrates Its Southern Hospitality with Kick Off of New

       1
       Interestingly, the first Church's Chicken restaurant was
called "Church's Fried Chicken-To-Go."     One Man, One Chicken
Legacy,   Churchs.com,  http://www.churchs.com/about.html (last
visited June 25, 2013).     Church's Chicken has always been a
fast-food restaurant.
       2
       See also N. Gate Corp. v. Nat'l Food Stores, 30
Wis. 2d 317, 321, 140 N.W.2d 744 (1966); All-Star Ins. Corp. v.
APS Ins. Agency, Inc., 112 Wis. 2d 329, 333, 332 N.W.2d 828 (Ct.
App. 1983); 17A Am. Jur. 2d Contracts § 337 (2004).

                                              8
                                                                No.    2011AP1451.dtp


Advertising              Campaign,             (Nov.            3,              2011),

http://www.businesswire.com/news/home/20111103005028/en/Church%E

2%80%99s-Chicken-Celebrates-Southern-Hospitality-Kick-

Advertising.         Because of Church's Chicken's "highly recognized

brand name," the court of appeals had no trouble asserting that,

"[i]t is undisputed here that a Church's Chicken is a fast-food

restaurant.         It was not necessary for the use provision in the

lease to include additional words allowing operation of a fast-

food restaurant.         A Church's Chicken is a fast-food restaurant."

Tufail v. Midwest Hospitality, LLC, No. 2011AP1451, unpublished

slip op., ¶8 (Wis. Ct. App. Aug. 1, 2012).

       ¶76     Even though Tufail is correct that not everyone would

understand what a Church's Chicken is, its reputation in the

restaurant       industry      demonstrates    that    those   in     the    business

would know that it is a fast-food restaurant.3                      Since the only

reasonable meaning of "Church's Chicken" is a fast-food chicken

restaurant, a paragraph that allows for the sale of "items sold

by any Church's Chicken store" unambiguously contemplates the
operation of the Property as a fast-food restaurant.

       ¶77     Furthermore,      the   Lease   explicitly      calls      for   broad

interpretation to avoid an unfair reading of the contract and to

"give full and fair meaning to the intentions of the parties."

It would not be reasonable to define "Church's Chicken" in a way

that       contradicts   its    true   definition.       Midwest      persuasively

argues       that   "Church's     Chicken"     must    refer   to     a     fast-food

       3
       At trial, Tufail's own expert understood that a Church's
Chicken is a fast-food restaurant and that Midwest intended to
operate a freestanding Church's Chicken on the Property.

                                          9
                                                                      No.    2011AP1451.dtp


restaurant because all Church's Chicken restaurants are fast-

food restaurants.            Since the zoning code did not permit a fast-

food restaurant on the Property and Church's Chicken is a fast-

food restaurant, Tufail's warranty that no ordinances prevented

the operation of a Church's Chicken on the Property was false.4

        ¶78    The problem with Tufail's warranty is apparent when

compared to another Lease provision.                    Paragraph 24(b) says, "If

allowed by local governmental authorities, Tenant shall have the

right to erect and maintain exterior free standing sign(s) in

the   location       set   forth     on   Exhibit      'A'.     Landlord       agrees    to

cooperate          fully     with     Tenant      in    obtaining       all      required

governmental         permits,       licenses,     approvals     and     variances       for

Tenant's      sign(s)."        This    paragraph       is   clear    that     the   tenant

might need to get government permits or variances in order to

erect       the    desired    signage.           In    contrast,     Paragraph      33(g)

provides a broad warranty that there are no "requirements of any

governmental authority" that would prevent the tenant from using

the Property as specified in Paragraph 5.                     Tufail was not forced

to embrace the broad warranty in Paragraph 33(g).                           He could have

made a qualified commitment as appears in Paragraph 24(b), or he

could       have   forthrightly       disclosed       the   zoning    regulations       and

made the Lease contingent upon receipt of a satisfactory special

        4
       The majority opinion observes that the circuit court made
a finding of fact that not all Church's Chicken restaurants have
a drive-through. Majority op., ¶39. However, the drive-through
issue is a red herring. Church's Chicken is undeniably a fast-
food restaurant chain. The zoning code prohibited the operation
of a freestanding fast-food restaurant regardless of whether
that restaurant had a drive-through.    Tufail warranted against
that obstacle.

                                            10
                                                               No.    2011AP1451.dtp


use permit.      However, because Tufail warranted that there were

no zoning requirements with which Midwest had to comply in order

to sell Church's Chicken products in a fast-food restaurant,

Tufail must be held to his promise.

                                        III

      ¶79   Tufail's     warranty      that   no   restrictions       prevent       the

operation     of a   Church's     Chicken     is   unambiguous,      but     even    if

"Church's     Chicken"    is   deemed     ambiguous,     the     parol       evidence

demonstrates that the parties understood Church's Chicken to be

a fast-food restaurant.          If a contract is ambiguous, the court

may use parol evidence to explain the ambiguous term.                              Town

Bank,   330    Wis. 2d 340,      ¶38.         Tufail   admitted       that    "[t]he

intended purpose of the Lease, as represented by Midwest, was

for it to open a new Church's Chicken restaurant at the Leased

Premises."     Tufail had to know that Church's Chicken is a fast-

food restaurant because his New York Chicken restaurant was an

old Church's Chicken.            Furthermore, Tufail saw that Church's

Chicken is a fast-food restaurant when he visited one before
signing the Lease.

      ¶80   Tufail's     visit    is    important      because       the     parties'

course of dealings can clarify contractual ambiguities.                             See

Martinson v. Brooks Equip. Leasing, Inc., 36 Wis. 2d 209, 219,

152   N.W.2d 849     (1967).      In    Martinson,     the   contract        for    the

construction of a pool was ambiguous because it incorporated

plans for a pool but did not explicitly incorporate plans for a

filter system.       Id. at 218-19.           However, the evidence showed

that the appellant knew that the filter system was part of the

                                        11
                                                                        No.   2011AP1451.dtp


plans for the pool.             Id.    Furthermore, because the plans for the

pool included the plans for the filter system and the contractor

used a single set of plans to construct both, the plans for the

filter system were part of the contract.                            Id. at 219-20.        The

course of dealings in the present case demonstrates that Tufail

knew what the term "Church's Chicken" meant.                             He had visited

another Church's Chicken fast-food restaurant to see how Midwest

would alter the Property.                 This visit shows that the parties

knew     and      intended      that    Midwest       would      operate      a    fast-food

restaurant on the Property.

       ¶81     Tufail's interpretation of the Lease is also suspect

because      it    would     render    the     inclusion      of     "Church's      Chicken"

meaningless,          and   courts     avoid    interpreting         contracts      to    make

portions superfluous.            See DeWitt Ross & Stevens, S.C. v. Galaxy

Gaming & Racing Ltd. P'ship, 2004 WI 92, ¶44, 273 Wis. 2d 577,

682 N.W.2d 839.             In DeWitt, a law firm provided services to

Galaxy       under      a   contract    that        charged      interest     on    untimely

payments,         but   Galaxy    had    no     assets      or      income.        Id.,   ¶7.
Galaxy's owner guaranteed full payment, but the guaranty was

silent as to whether the owner would pay interest.                                 Id., ¶43.

It would have been meaningless to include the interest clause in

the contract with Galaxy, a company with no assets, unless the

owner's guaranty for full payment included a guaranty to pay the

interest.         Id., ¶¶46-47.        Similarly, it would make little sense

for the Lease to mention "Church's Chicken" four times if that

term could refer to any type of restaurant.                             Tufail seems to

suggest        that     since    the    Lease        does     not    explicitly       define

                                               12
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"Church's Chicken," no warranty would be violated if a Church's

Chicken could open and operate under any circumstance.                         However,

the "Church's Chicken" term is useful only if it refers to the

Church's Chicken fast-food restaurants that actually exist.

                                         IV

     ¶82   After a trial, the circuit court ruled in favor of

Tufail.    In so doing, the court appears to have overlooked or

discounted critical       testimony,      minimized       the     fast-food      zoning

problem to focus on the           drive-through,         shifted        the   blame   to

Midwest for failing to engage in due diligence, and disregarded

an explicit provision in the Lease.

     ¶83   From    the   outset,     Midwest       sought    to    lease      Tufail's

property   to   open     and    operate       a   Church's      Chicken       fast-food

restaurant.       Paragraph      33(g)    of      the   Lease    was     designed     to

minimize the hazard of an existing zoning barrier against the

operation of a traditional Church's Chicken restaurant and to

provide an escape clause from a five-year lease if an existing

barrier unexpectedly materialized.                 Midwest no doubt wanted a
drive-through which is often, if not always, a component of a

fast-food restaurant.          If a drive-through were the sole or major

sticking point, the specific representations in the Lease might

present a different case.

     ¶84   The circuit court recast the facts and narrowed the

issue.     The circuit court found that "there was no evidence

presented that Tufail knew about the many other Church's Chicken

restaurants, whether or not they had drive-through operations or

other Church's Chicken franchise requirements."

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     ¶85    In my view, the statement about Tufail's knowledge is

clearly erroneous, and the court's emphasis on the drive-through

problem fails to deal with Midwest's legal argument that there

were two zoning problems they had to face, contrary to Tufail's

warranty.

     ¶86    As        to   his    knowledge,       Tufail   testified       that        the

restaurant he bought in 2000 was a drive-through and carry-out

fast-food restaurant:

         Q    All right.      And when you                        bought     [the
    Property], was it an ongoing restaurant?

         A    It was              a    running     restaurant.      It     was     a
    chicken place.

            Q         What was the name of it then?

         A    At that time it was a New York Chicken. But
    basically it was a Church's Chicken place closed down.
    And the [previous owner], he bought it from Church's
    Chicken and put the name——    They didn't let him use
    their Church's Chicken. They—— So he put a New York
    Chicken [there].
(Emphasis added.)

     ¶87    Tufail         acknowledged        that   "it   was     an    old      design

Church's Chicken which [he] was running."                   (Emphasis added.)            He

said that he used Church's Chicken equipment in his New York

Chicken     and       suggested       that    Church's   Chicken     use     the       same

equipment       for     its   new      operation.        Tufail    visited       another

Church's Chicken in Milwaukee, and he discussed the new interior

and exterior          alterations      that    Midwest   intended    to    make.         He

expected that Midwest would make his property look like other

Church's Chicken restaurants.                 He testified that the purpose of



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the Lease "as it was presented by Midwest [was] to open a new

Church's Chicken restaurant at the leased premises."

        ¶88    In March 2007, before the Lease was fully negotiated

and signed, Tufail was visited by Khan who oversees more than

100 Church's Chicken franchises in the Midwest.                             The circuit

court and the majority appear to believe that Khan and Tufail

never discussed what a Church's Chicken restaurant is all about,

so that Tufail really did not know.                     This view of the facts is

unrealistic       if       not   incredible      and    is   directly      contrary    to

Tufail's       acknowledgment       at    trial    that      he   understood     Midwest

could not operate the Property without a special use permit.

     ¶89       In short, the court's finding that Tufail knew nothing

about other Church's Chicken restaurants cannot be squared with

the record.

    ¶90        The court made another questionable finding of fact.

The court found that, "[i]n early 2008, after the [New York

Chicken] restaurant had closed, Tufail was then approached by

representatives of Midwest Hospitality who sought to lease the
subject property." (Emphasis added.)                     Tufail's attorney, citing

the record, writes in his brief:                  "Midwest had approached Tufail

about    opening       a    Church's     Chicken    restaurant      at     the   location

prior     to    and        immediately     after       Tufail     temporarily     ceased

operations of his chicken restaurant." (Emphasis added.)                               In

short, Tufail's attorney corrected the circuit court's findings

of fact.




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       ¶91   The     court     of    appeals——in    its    recitation     of     facts——

simply disregarded the circuit court's mistaken "findings" on

both matters discussed above.

       ¶92   As noted, the circuit court found that "there was no

evidence that Tufail knew . . . whether other Church's Chicken

restaurants had drive-through operations."                     It also found that

"the vast majority of Church's Chicken restaurants have drive-

through operations, but not all." (Emphasis added.)                        The latter

finding is correct, but it is seriously incomplete.                            The court

made no finding that there was any Church's Chicken restaurant

that was not a fast-food restaurant.                      The court also made no

finding that there was any freestanding Church's Chicken that

did not      have    a   drive-through        operation.       More   important      for

purposes of this case is that the Property had been operated as

a freestanding fast-food restaurant and was intended by Midwest

to   be    operated      as    a    freestanding    Church's    Chicken        fast-food

restaurant.         The point is that the Property's operation as a

fast-food restaurant was not allowed by the Milwaukee zoning
code without a special use permit.                 Tufail warranted otherwise.

       ¶93   Although         the   circuit    court   made    sparse    findings     of

fact      about     Church's        Chicken    restaurants,     it      made     lengthy

findings about Midwest's lack of due diligence.                   The court said:

            Brian Parrish is a commercial real estate broker
       who testified about industry custom and practice
       relating to commercial leases. Parrish testified that
       prior to entering into commercial leases parties
       routinely perform due diligence and described that as
       the period of time prior to the occupant taking
       occupancy to uncover any issues that they may
       encounter that would inhibit them from doing what they
       intend to do at that property, and that includes
                                              16
                                                              No.   2011AP1451.dtp

       government approvals, construction costs, financing,
       inspections. He further testified that any issues of
       import to the tenant[,] those items could have been a
       contingency, a due diligence item, in the lease.
       Midwest   Hospitality did not perform proper       due
       diligence. In fact, Mr. Habash specifically testified
       that Midwest Hospitality didn't do any due diligence.
       He stated it was because of trust and assurances by
       Mr. Tufail. But the Court does not find the testimony
       of Mr. Habash about reliance on Mr. Tufail credible.
       Mr.   Habash   is   a   senior  executive  at  Midwest
       Hospitality who has been involved with the lease and
       renovation of many prior Church's Chicken restaurants.
       Mr. Habash is the president of the independent
       franchise council of over 750 such restaurants.    Mr.
       Habash was at the subject property before entering
       into the lease and saw its poor condition. It is not
       credible to believe that Mr. Habash relied upon
       statements of Mr. Tufail when making the decision of
       whether or not to have Midwest Hospitality enter into
       the subject lease.    Rather, it is more credible that
       Mr. Habash relied upon his own knowledge, experience,
       and personal inspection.
(Emphasis added.)

       ¶94   The circuit court's oral decision suggests that the

court believed that Midwest should have thoroughly investigated

all applicable zoning requirements before signing the Lease——

that   Paragraph     33(g)   does   not    mean   anything    because    Midwest

should have previously discovered the requirements for a special

use permit.        These sentiments appear to substitute the court's

expectations for the parties' intentions.

       ¶95   The majority opinion does not acknowledge the circuit

court's reliance on "due diligence" as a justification for not

enforcing    the    warranties   in   the   Lease.     This    raises    a   very

important issue of contract law.

       ¶96   This court has observed that, "in general, the laws in

existence at the time of the contract are incorporated into that

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                                                                    No.    2011AP1451.dtp


contract."       Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI

107, ¶60, 295 Wis. 2d 1, 719 N.W.2d 408 (citing Von Hoffman v.

City of Quincy, 71 U.S. 535, 550 n.30 (1866)).                            The court of

appeals has said: "It must be assumed that parties to a contract

had    knowledge      of   the     law    in    effect      at    the     time   of    the

agreement."      Krause v. Mass. Bay Ins. Co., 161 Wis. 2d 711, 718,

468    N.W.2d 755     (Ct.   App.    1991)      (citing      Menard     v.   Sass,      127

Wis. 2d 397, 399, 379 N.W.2d 344 (Ct. App. 1985)).

       ¶97    Although     these    principles       may    be    sound    in    general,

parties      seldom   have   equal       knowledge     of   the    law.      One      party

cannot sign a contract assuring the other party that it will

have    no   problems      under   existing      law     and     then   assert     a   due

diligence defense when that assurance proves false.                          This axiom

was eloquently stated in the English case of Redgrave v. Hurd:

            There is another proposition of law of very great
       importance which I think it is necessary for me to
       state, because, with great deference to the very
       learned Judge from whom this appeal comes, I think it
       is not quite accurately stated in his judgment. If a
       man is induced to enter into a contract by a false
       representation it is not a sufficient answer to him to
       say, "If you had used due diligence you would have
       found out that the statement was untrue. You had the
       means afforded you of discovering its falsity, and did
       not choose to avail yourself of them."   I take it to
       be a settled doctrine of equity, not only as regards
       specific performance but also as regards rescission,
       that this is not an answer unless there is such delay
       as constitutes a defence under the Statute of
       Limitations.
Redgrave v. Hurd, [1881] 20 Ch.D. 1 at 13 (Eng.) (first emphasis

added).       One hundred years           later,     this    ancient      doctrine      was

embodied in our Restatement (Second) of Contracts, § 172 (1981):

"A recipient's fault in not knowing or discovering the facts
                                           18
                                                             No.   2011AP1451.dtp


before     making   the   contract       does   not   make     his     reliance

unjustified unless it amounts to a failure to act in good faith

and in accordance with reasonable standards of fair dealing."

     ¶98    If the Supreme Court of Wisconsin intends to reject

these principles, it ought to explain why.             Rejection of these

principles will certainly have implications for the enforcement

of Wis. Stat. § 100.18, which was one of Midwest's counterclaims

in this case.

     ¶99    One other item undermines the ruling of the circuit

court.     The court looked to Paragraph 5 of the Lease and said:

"If Paragraph Five were vague or ambiguous in any way, the Court

finds that the language contained therein was drafted by Midwest

Hospitality and it should be construed against the drafter."

This is directly contrary to Paragraph 36 of the Lease, which

provides in part: "Landlord and Tenant have negotiated the terms

of this Lease; therefore, this Lease shall not be interpreted or

construed against or in favor of any party." (Emphasis added.)

     ¶100 In sum, the majority opinion heavily relies on the
findings of fact and conclusions of law of the circuit court and

completely rejects the well-considered decision of the court of

appeals.    This is a mistake of the first order.

                                     V

     ¶101 The majority opinion also relies on the "integration

clause" in the contract as precluding any consideration of parol

evidence.     This too is an error because the integration clause

applies only to prior agreements.           An integration clause "does

not bar the use of extrinsic evidence to clarify the meaning of

                                     19
                                                                             No.    2011AP1451.dtp


an ambiguous text."             Roth v. City of Glendale, 2000 WI 100, ¶49,

237 Wis. 2d 173, 614 N.W.2d 467 (Sykes, J., concurring) (quoting

Bidlack      v.     Wheelabrator          Corp.,      993    F.2d     603,    608     (7th       Cir.

1993));       see      also     Restatement          (Second)        of    Contracts        §    214

(extrinsic evidence is admissible to establish the meaning of a

writing even if integrated).

        ¶102 If there is an integration clause, courts "may not

consider       evidence       of    any     prior       or    contemporaneous           oral       or

written       agreement         between      the       parties."            Town     Bank,        330

Wis. 2d 340, ¶37 (footnote omitted).                         In Town Bank, there was a

commitment letter before the parties signed the contract, and

the integration clause in the contract precluded consideration

of the prior commitment letter.                      Id., ¶41.        In the present case,

there    was      no    prior      oral    or     written         agreement    regarding          the

Property or the definition of "Church's Chicken."                                  If there were

any ambiguity in the term "Church's Chicken," the integration

clause       would     not    prevent       the      use     of    extrinsic        evidence       to

interpret that term in the Lease.
        ¶103 Even if the Lease were viewed as not specifying the

operation of a Church's Chicken fast-food restaurant, the intent

of the parties compels that interpretation.                               Paragraph 5 of the

Lease     allows       for    the     use       of    the     Property        to     sell       items

traditionally sold by any Church's Chicken.                               Items traditionally

sold    by    Church's        Chicken      are       fast-food       items,    and     the       only

reasonable interpretation is that an establishment selling fast-

food items is a fast-food establishment.                              Because the court's

goal in construing a contract is to give effect to the parties'

                                                 20
                                                                   No.       2011AP1451.dtp


intent, Town Bank, 330 Wis. 2d 340, ¶33, it is reasonable to

interpret     the   inclusion        of   "Church's    Chicken"         to     mean     that

Midwest could operate a Church's Chicken fast-food restaurant.

                                           VI

        ¶104 The majority opinion leans upon the fact that Midwest

ultimately attained a special use permit to operate a fast-food

restaurant with a drive-through.                This does not remedy Tufail's

false     warranty.      The     Lease      warranted      that     there        were     no

ordinances     or   restrictions          preventing   the   uses        specified        in

Paragraph 5.        While Midwest          obtained    a   one-year          special     use

permit, that permit did not change the fact that operating a

freestanding restaurant at the Property was not a permitted use.

The city plan examiner denied Midwest's application to operate a

Church's      Chicken   on     the    Property     because        the    zoning         code

prevented such a use.           Midwest could have terminated the Lease

at that point, but it acted in good faith and worked hard to

obtain    a   special   use     permit.         Unfortunately,          the     excessive

restrictions in the permit prevented Midwest from operating a

Church's Chicken because the restrictions made it economically

impracticable to do so.

    ¶105 Tufail had a permit to operate his New York Chicken

from 10:00 a.m. to 4:00 a.m.——18 hours a day, seven days a week.

Midwest received a permit that allowed it to operate until only

9:00 p.m., which likely was seven hours per day and 49 hours per

week less than Tufail had operated.                    If the Church's Chicken

restaurant were designed to open at 11:00 a.m., the restaurant

would operate only ten hours per day.                  This completely scuttled

                                           21
                                                                       No.   2011AP1451.dtp


Midwest's       business       model     for     a    restaurant       located     at    the

intersection of North Avenue and 17th Street in Milwaukee.

        ¶106 Moreover,         the     special       use    permit     imposed      another

economic    burden       that    prevented          the    operation    of    a    Church's

Chicken.     The requirement that Midwest pick up garbage within a

one-block       radius    of    the     Property      was     prohibitive.          As   the

majority points out, a Midwest representative testified that the

special use permit imposed restrictions that would have made the

operation of a Church's Chicken "impossible."                            Majority op.,

¶14.     An economic impossibility is just as preventative as a

physical or legal impossibility.                     The circuit court apparently

failed to consider these insurmountable economic burdens when it

stated that the special use permit "did not prevent, in any way,

Midwest Hospitality from opening a Church's Chicken restaurant

at the subject property with a drive-through and as a fast food

restaurant."          The       special        use    permit's        restrictions       and

uncertainty effectively prevented the operation of the Church's

Chicken that the parties intended.

                                           VII

        ¶107 When Tufail signed the Lease, he misrepresented that

there    were    no   ordinances        that     would      prevent    any   use    of   the

Property contemplated in Paragraph 5 of the Lease.                           Although the

Lease did not define "Church's Chicken," the only meaning of

that term is a fast-food restaurant.                       Even if "Church's Chicken"

is ambiguous, the parol evidence demonstrates that both parties

understood that a Church's Chicken is a fast-food restaurant.

Since the Milwaukee zoning code states that a freestanding fast-

                                               22
                                                      No.    2011AP1451.dtp


food restaurant   is   not a   permitted   use,   Tufail    breached   his

warranty.



    ¶108 For the foregoing reasons, I respectfully dissent.




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