                                                              2018 WI 46

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2015AP2627
COMPLETE TITLE:         Mark McNally,
                                   Plaintiff-Respondent,
                             v.
                        Capital Cartage, Inc. d/b/a Capital Cartage
                        Moving & Storage,
                                   Defendant-Appellant-Petitioner,
                        Mary R. Hermanson,
                                   Defendant.

                            REVIEW OF DECISION OF THE COURT OF APPEALS
                           Reported at 375 Wis. 2d 798, 899 N.W.2d 738
                                       (2017 – unpublished)

OPINION FILED:          May 10, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 17, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Dane
   JUDGE:               Juan B. Colas

JUSTICES:
   CONCURRED:
   DISSENTED:           ZIEGLER, J., dissents (opinion filed).
   NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed    by       Nicole   S.   Schram,   Cathleen   A.   Dettmann,   Kevin   J.
Palmersheim, and Haley Palmersheim, S.C., Middleton.                  There was
an oral argument by Cathleen A. Dettmann.


       For the plaintiff-respondent, there was a brief filed by
Robert C. Procter, III, with whom on the brief were Justin H.
Lessner, and Axley Brynelson, LLP, Madison.                There was an oral
argument by Robert C. Procter, III.
    An amicus curiae brief was filed on behalf of Wisconsin
Realtors Association by Debra P. Conrad and Wisconsin Realtors
Association, Madison.




                              2
                                                                              2018 WI 46
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.       2015AP2627
(L.C. No.    2014CV1624)

STATE OF WISCONSIN                               :              IN SUPREME COURT

Mark McNally,

              Plaintiff-Respondent,

      v.                                                                 FILED
Capital Cartage, Inc. d/b/a Capital Cartage                         May 10, 2018
Moving & Storage,
                                                                       Sheila T. Reiff
              Defendant-Appellant-Petitioner,                       Clerk of Supreme Court


Mary R. Hermanson,

              Defendant.




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


      ¶1      ANN       WALSH   BRADLEY,   J.    The         petitioner,        Capital

Cartage, Inc. (Capital Cartage), seeks review of an unpublished

decision of the court of appeals affirming the circuit court's

determination that real estate broker Mark McNally (McNally) is

entitled     to     a    commission   pursuant       to   the    listing       contract

between      the    parties.1      Contrary     to     the    court      of    appeals'
      1
       McNally  v.   Capital  Cartage,   Inc.,  No.   2015AP2627,
unpublished slip op., (Wis. Ct. App. Apr. 27, 2017) (affirming
order of circuit court for Dane County, Juan B. Colas, Judge).
                                                            No.     2015AP2627



determination,   Capital   Cartage       asserts   that   McNally    is     not

entitled to a commission because the offer to purchase McNally

procured contains substantial variances from the seller's terms

as set forth in the listing contract.

    ¶2   Specifically, Capital Cartage argues that three terms

in the offer to purchase constitute substantial variances from

the listing contract.      Among these is a dispositive condition

that Mary Hermanson, one of Capital Cartage's owners, continue

to work for the business without pay for an undetermined period

of time following the sale.

    ¶3   Capital   Cartage    further      asserts   that   the     court   of

appeals erroneously interpreted Libowitz v. Lake Nursing Home,

Inc., 35 Wis. 2d 74, 150 N.W.2d 439 (1967).               It alleges that

Libowitz did not, as the court of appeals concluded, alter the

standard for determining whether a substantial variance exists

as set forth by Kleven v. Cities Serv. Oil Co., 22 Wis. 2d 437,

126 N.W.2d 64 (1964).2     Therefore, it contends that McNally is




    2
       In Kleven, we concluded that "where the variance is a
substantial one, such as one that is directly in conflict with a
material provision of the listing contract, there has been no
substantial performance by the broker which would entitle him to
his commission, absent acceptance of the offer by the owner."
Kleven v. Cities Serv. Oil Co., 22 Wis. 2d 437, 444, 126
N.W.2d 64 (1964) (emphasis added).

                                                               (continued)
                                     2
                                                             No.    2015AP2627



not entitled to a commission because he did not procure an offer

to purchase "at the price and on substantially the terms set

forth" in the listing contract.

      ¶4    We conclude first that Kleven remains the law of this

state with regard to determining whether a substantial variance

exists between     a listing contract and an          offer to purchase.

Although a term of the offer to purchase that is directly in

conflict with the listing contract is a substantial variance, it

is not the sole manner in which substantial variance may be

shown.     Kleven offered direct contradiction as an example, not

as a limitation.

      ¶5    Applying    this   standard,   we    conclude    that    in    the

context of the sale of a business with real estate where the

sale did not go through, the condition in the offer to purchase

that Mary Hermanson continue to work for Capital Cartage without

pay constitutes a substantial variance from the listing contract

as a matter of law.      Consequently, we determine that McNally did

not   procure   an     offer   to   purchase    "at   the   price    and   on
substantially the terms set forth" in the listing contract and

therefore is not entitled to a commission.



     In Libowitz, we stated that "the complaint would be
demurrable on the ground of failing to state a cause of action
if, in spite of liberal construction principles, it alleged
variations between the terms of the listing contract and the
offer that were: [] Substantial variations, i.e., 'directly in
conflict   with    a   material   provision   of    the listing
contract' . . . "    Libowitz v. Lake Nursing Home, Inc., 35
Wis. 2d 74, 82, 150 N.W.2d 439 (1967) (emphasis added).


                                      3
                                                                            No.     2015AP2627



       ¶6      Accordingly, we reverse the court of appeals.

                                                 I

       ¶7      Mary and Rolyn Hermanson own Capital Cartage, a moving

and storage business.               Seeking to retire and sell the business

with real estate, Mary Hermanson (Hermanson) met with McNally, a

real       estate    broker.        As     a   result     of   this      meeting,    McNally

drafted a listing contract.                     He used the standard state form

listing contract, labeled as a WB-6 Business Listing Contract.

       ¶8      The       listing    contract         contained    a     provision    setting

forth the requirements that must be met for the broker to earn a

commission.          In relevant part, the contract provides:

       Seller shall pay Broker's commission, which shall be
       earned if, during the term of this Listing . . .[a]n
       offer to purchase is procured for the Business or
       included property by the Broker, by Seller, or by any
       other person, at the price and on substantially the
       terms set forth in this Listing and the standard
       provisions of the current [state form offer to
       purchase.]
       ¶9      The asking price for the business with real estate as

reflected           in    the      listing       contract        was      $1.2      million.3

Approximately            three     weeks       after    the    listing      contract      was

executed, McNally procured an offer to purchase Capital Cartage

from Steven Erickson (Erickson).

       ¶10     Prior      to     submitting      an    offer     to    purchase,    Erickson

presented a letter of intent to Hermanson.                            The letter of intent

       3
       Before the circuit court, Capital Cartage argued that the
parties modified price in the listing contract from $1.2 million
to $1.395 million. The jury rejected this argument, and Capital
Cartage does not raise it before this court.


                                                 4
                                                            No.       2015AP2627



included, among others, the following three conditions for the

sale:

     Lender required good faith deposit (approximately
     $7,500 for appraisal and other costs) is split between
     seller and buyer once financing is fully approved,
     commitment  letter   issued  and   appraisal  ordered.
     Seller to be reimbursed in full for good faith deposit
     at closing.

     Covenant agreements not to compete signed by Mary and
     Rolyn Hermanson (prior to close)[.]

     Mary and Rolyn Hermanson agree to operate business as
     normal until acquisition takes place and for Mary to
     stay on full time and without pay for period outlined
     in proposed structure.4
     ¶11   Hermanson,   dissatisfied     with   the   letter     of    intent,

sent an email to McNally objecting to the $1.2 million sale

price.   Instead, Hermanson sought a $1.4 million sale price.

     ¶12   As the letter of intent foreshadowed, Erickson's offer

to purchase was for a price of $1.2 million.                The offer to

purchase was presented on the standard state form "WB-16 Offer

to Purchase – Business with Real Estate."              Erickson, however,

included   an   additional   page,   labeled    as   "Addendum    A,"    which
consisted of the last page of the letter of intent.               Addendum A

listed conditions for the sale, which included the three above

conditions at issue here.



     4
       The "proposed structure" appears to be a reference to the
first page of the letter of intent, which stated: "Seller stays
on fulltime for period of 3 months to ensure proper transition.
Operates on part time basis at seller discretion for rest of
2014. Part time hourly rate after year 2014 to be negotiated."


                                     5
                                                                  No.    2015AP2627



     ¶13   After receiving the offer, Mary and Rolyn Hermanson

rejected the offer in a letter from their counsel to McNally.

The letter stated in part:

     Capital Cartage, Inc., has just concluded its Special
     Meeting of Shareholders at my office this afternoon.
     The Wisconsin statutes require that a majority vote of
     the shareholders is necessary to sell the business.
     The vote was called and the motion to approve the
     offer to purchase failed to achieve a majority of the
     shareholders' votes.   Capital Cartage has decided not
     to sell its business at this time.
Hermanson did not provide any other reason for rejecting the

offer.

     ¶14   Subsequently,    McNally       filed   this       lawsuit,    alleging

that Capital Cartage owed him a commission of $72,000 pursuant

to the listing contract.          He asserted that he had procured an

offer "at the price and on substantially the terms set forth in

this Listing[.]"

     ¶15   Capital      Cartage      answered          the     complaint       and

subsequently moved for judgment on the pleadings.                       It argued

that no commission was due as a matter of law because there were

substantial variances between the listing contract and the offer

Erickson   submitted.        Capital       Cartage       cited    six     alleged

variances, including the three conditions at issue.5
     5
       Capital Cartage also          raised       as    alleged     substantial
variances the following:

     Line 45 of Offer states: '. . . expenses incurred by
     Buyer in normal course of action.'

     Tenants from Mustang Way property to be transferred to
     Cottonwood Drive property.
                                                                    (continued)
                                      6
                                                              No.    2015AP2627



    ¶16     The circuit court denied the motion for judgment on

the pleadings, explaining:

    Whether the offer varies substantially from the terms
    of a listing contract is a question of fact that is in
    dispute in the pleadings. Though the listing contract
    and the offer are undisputed and are part of the
    pleadings, whether the variances are substantial may
    depend upon other relevant facts concerning the
    transaction or the nature of the business being sold.
    The inclusion of some conditions in an offer may be a
    substantial variance in some circumstances and not in
    others[.]
    ¶17     The case proceeded to trial.          As    indicated in the

circuit court's decision denying the motion for judgment on the

pleadings, one of the issues at trial was whether the offer to

purchase    contained     substantial    variances     from    the      listing

contract.

    ¶18     At   the      jury   instruction     conference,         following

extensive discussion, the circuit court determined as a matter

of law that the three conditions at issue were not substantial

variances    from   the    listing   contract.       The      circuit    court

reasoned:

    And I think 'substantial variance' has to mean
    inconsistent with or in direct conflict with. I don't
    think it can just be any variance, even any difference
    at all——any difference at all between the listing
    contract and the offer.     Not every variance is a


    Assumption of leases associated with Mustang Way.

     Capital Cartage does not raise these provisions as
substantial variances before this court.  Its argument before
this court is limited to the three conditions at issue.   See
supra, ¶10.


                                     7
                                                                    No.    2015AP2627


    substantial one.   And where there's nothing in the
    contract on a topic and the offer proposes something,
    that's not a substantial variance as I read the case
    law.
    ¶19   Accordingly,       the    circuit    court   instructed          the   jury

that "[t]he court has determined that as a matter of law that

the provisions in the offer to purchase that the sellers share

in the costs of appraisal, that the Hermansons sign non-compete

agreements and that Ms. Hermanson continue to work for Capital

Cartage after the sale are not substantial variances."                     The jury

found in McNally's favor, requiring Capital Cartage to pay his

commission.

    ¶20   Capital   Cartage        appealed,    arguing      that    the    circuit

court erred by denying its motion for judgment on the pleadings.

It further contended that the circuit court erred at the jury

instruction conference by concluding, as a matter of law, that

the three conditions at issue were not substantial variances

from the listing contract.

    ¶21   The   court   of    appeals      affirmed    the    circuit       court's

entry of judgment on the jury's verdict.                  McNally v. Capital

Cartage, Inc., No. 2015AP2627, unpublished slip op. (Wis. Ct.

App. Apr. 27, 2017).     In an unpublished decision, the court of

appeals concluded "that a substantial variance in this context

is limited to variances in offers that directly conflict with

express terms in the corresponding listing contract."                     Id., ¶3.

                                      II

    ¶22   Capital Cartage argues that the circuit court erred by
denying its motion for judgment on the pleadings and in the


                                       8
                                                                        No.     2015AP2627



alternative, by instructing the jury that the three conditions

at issue are not substantial variances as a matter of law.

    ¶23      A judgment on the pleadings is essentially a summary

judgment     decision    without        affidavits     and     other          supporting

documents.      Jares        v.    Ullrich,     2003   WI    App    156,        ¶8,        266

Wis. 2d 322, 667 N.W.2d 843.              We determine first whether the

complaint has stated a claim.             Id.      If so, we next examine the

responsive pleading to ascertain whether an issue of material

fact exists.     Id.     Judgment on the pleadings is proper only if

there are no genuine issues of material fact.                      Town of Windsor

v. Vill. of DeForest, 2003 WI App 114, ¶5, 265 Wis. 2d 591, 666

N.W.2d 31.

    ¶24      A factual issue is genuine if the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.     Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co.,

2002 WI 80, ¶18, 254 Wis. 2d 77, 646 N.W.2d 777 (citing Baxter

v. DNR, 165 Wis. 2d 298, 312, 477 N.W.2d 648 (Ct. App. 1991)).

Whether    judgment     on    the     pleadings     should    be    granted           is    a
question of law we review independently of the determination

made by the circuit court and court of appeals.                               Jares, 266

Wis. 2d 322, ¶8.

    ¶25      Likewise, whether jury instructions accurately state

the applicable law presents a question of law which we review

independently    of     the       determinations    rendered       by    the     circuit

court and court of appeals.             State v. Beamon, 2013 WI 47, ¶18,

347 Wis. 2d 559, 830 N.W.2d 681.


                                          9
                                                                           No.    2015AP2627



      ¶26   The       court    of    appeals       correctly     observed         that    the

resolution       of    these       two    issues     hinges     on    the    same       legal

question:    whether the three conditions in the offer to purchase

are   substantial           variances      from     the    terms      of    the     listing

contract.    McNally, No. 2015AP2627, ¶17.                    Thus, as did the court

of appeals, we address this single question.                               We answer the

question only in the context of a sale of a business with real

estate where the sale did not go through.6

                                             III

      ¶27   We begin our analysis by setting forth the evolution

of the law regarding "substantial variance" between a listing

contract    and       an    offer    to    purchase.        Next,     we     clarify     the

standard    under          which    courts   are     to    determine        questions     of

substantial variance.              Finally, we examine the conditions in the

offer to purchase, applying the law as set forth.

                                              A

      ¶28   Our examination of the law begins in 1944, with this

court's decision in Moss v. Warns, 245 Wis. 587, 15 N.W.2d 786
(1944).     In Moss, a seller of residential property entered into

a listing contract with a broker.                    Id. at 588-89.              The broker

procured    an    offer       to    purchase       the    property.         Id.    at    589.


      6
       The facts of this case present the sale of a business with
real estate where the sale did not go through.     Our conclusion
here is circumscribed because the ramifications for other types
of property sales with other factual scenarios are not before
us. Accordingly, we limit our holding to the sale of a business
with real estate where the sale did not go through.


                                             10
                                                                       No.    2015AP2627



Stating only, "[w]e decided not to sell.                  [A co-owner] would not

consent to it," the seller rejected the offer.                   Id.

       ¶29     After    the   broker   brought     suit   seeking      a     commission

pursuant to the terms of the listing contract, the seller raised

as a defense alleged "discrepancies between some of the terms of

sale specified in the listing agreement and the terms stated in

[the] offer to purchase[.]"            Id. at 590-91.        The court concluded

that     the    seller    had    waived     any    objection     to     the    alleged

discrepancies because the seller did not bring the discrepancies

to the broker's attention when initially rejecting the offer.

Id. at 591-92.

       ¶30     Moss    thus   established      a   rule   that   "[r]egardless       of

whether the principal, at the time of his refusal to consummate

the transaction, states some grounds or no grounds for such

refusal, a particular ground not specified by him at the time is

waived and cannot be urged by him when sued [by a broker] for a

commission."           Id. at 591 (citing 12 C.J.S., Brokers, p. 224,

§ 95).       In other words, the Moss court concluded that, in order
for sellers to rely on discrepancies between the terms of an

offer to purchase and the terms of a listing contract to relieve

them from paying a broker's commission, sellers must bring their

objections to the broker's attention.

       ¶31     The holding in Moss was subsequently limited by this

court's decision in Kleven, 22 Wis. 2d 437.                      In Kleven, as in

Moss, a seller rejected an offer to purchase without giving a

reason for doing so.          Id. at 441.


                                          11
                                                                   No.    2015AP2627



       ¶32    The Kleven court concluded that sellers could reject

an    offer   to    purchase    without    giving   a     reason    and    without

triggering a broker's entitlement to a commission if there were

"substantial"       variances    between    the     terms    of     the    listing

contract and the terms of the offer.                Id. at 444.          The court

reasoned that an insubstantial variance should be brought to a

broker's attention to give the broker an opportunity to correct

it.    Id.

       ¶33    However, where the variance is substantial, "such as

one that is directly in conflict with a material provision of

the listing contract, there has been no substantial performance

by the broker which would entitle him to his commission, absent

acceptance of the offer by the owner."              Id.     In that situation,

the broker is chargeable with knowledge that the substantial

variance exists when the offer is submitted.                  Id.        Therefore,

"the owner should be under no duty to point this variance out to

the broker in rejecting the offer."           Id.

       ¶34    This court purported to apply Kleven in Libowitz, 35
Wis. 2d 74.        The Libowitz court summarized the circumstances in

which a seller will be relieved of paying a broker's commission

following Kleven as follows:

       Summarizing these rules as they apply to the case at
       hand, the complaint would be demurrable on the ground
       of failing to state a cause of action if, in spite of
       liberal construction principles, it alleged variations
       between the terms of the listing contract and the
       offer that were:     1. Substantial variations, i.e.,
       'directly in conflict with a material provision of the
       listing contract;' 2. Insubstantial, but called to the
       attention of the broker; or, 3. Insubstantial, but of

                                      12
                                                                         No.     2015AP2627


       such a nature that they could not have been remedied
       by the broker anyway.
Id. at 82-83.

       ¶35    The    court     of    appeals       in     this    case     observed      a

difference in language between Kleven and Libowitz, to which it

ascribed great import.             Namely, Kleven used the phrase "such as"

when explaining the meaning of "substantial variation," while

Libowitz employed "i.e."             McNally, No. 2015AP2627, ¶28; Kleven,

22 Wis. 2d at 444; Libowitz, 35 Wis. 2d at 82.

       ¶36    In the court of appeals' estimation, the case turns on

this    linguistic         idiosyncrasy.           It    observed,    "[t]he        Kleven

court's       use    of    'such     as' . . . indicated            that       there    are

variances that are substantial that do not involve a direct

conflict between an offer and the listing contract.                                 If the

Kleven court had intended substantial variances to be limited to

offer terms in direct conflict with listing terms, the sentence

would read:         'where the variance is a substantial one, that is,

one    that     is    directly       in    conflict . . . "              McNally,       No.

2015AP2627, ¶25.
       ¶37    Accordingly,       the      court    of     appeals    concluded         "the

supreme      court    in     Libowitz      modified       the    Kleven    substantial

variance language by replacing 'such as' with 'i.e.,' thus, in

our view, doing what Kleven did not do.                           That is, Libowitz

limited      'substantial      variances'         to    those    involving      a   direct

conflict between the terms of the offer and the terms of the

listing contract."          Id., ¶26.




                                            13
                                                                             No.    2015AP2627



       ¶38    We disagree.          There is no indication that the Libowitz

court intended to modify Kleven.                    In contrast, when the Kleven

court modified Moss, it explicitly stated that it was doing so.

See    Kleven,        22        Wis. 2d at    445    ("Upon          the     most    careful

consideration of the problem we are satisfied that, both with

respect to the law which prevails in other jurisdictions, and

our own analysis of what the law should be, that the rule of

Moss v. Warns [] should be confined to variances which are not

substantial, and we so determine.").

       ¶39    "A court's decision to depart from precedent is not to

be made casually.               It must be explained carefully and fully to

insure       that    the    court     is     not    acting      in    an     arbitrary     or

capricious manner.                A court should not depart from precedent

without sufficient justification."                    Johnson Controls, Inc. v.

Employers Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665

N.W.2d 257; see Leitinger v. DBart, Inc., 2007 WI 84, ¶59, 302

Wis. 2d 110, 736 N.W.2d 1.

       ¶40    Libowitz provides no justification for departing from
Kleven.       It contains no explicit pronouncement that Kleven is no

longer the standard.               The Libowitz court thus evinces no clear

intent to depart from Kleven.                 Instead, the use of "i.e." rather

than   "such        as"    or    "e.g."    appears    to   be    an        unfortunate    and

mistaken editorial choice.

       ¶41    Consequently, we conclude that Kleven remains the law

of this state with regard to determining whether a substantial

variance exists between the listing contract and the offer to
purchase.           Although a term of the offer to purchase that is
                                              14
                                                                          No.    2015AP2627



directly in conflict with the listing contract is a substantial

variance,     it    is   not     the   sole     manner   in     which          substantial

variance may be shown.             Kleven offered direct contradiction as

an example, not as a limitation.

      ¶42    Our decision in Peter M. Chalik & Assocs. v. Hermes,

56 Wis. 2d 151, 201 N.W.2d 514 (1972), is consistent with this

result.       Chalik     was     decided    post-Libowitz,          yet    applies      the

standard from Kleven.            Id. at 157-58 (directly quoting Kleven,

22   Wis. 2d at     444,    by    stating     the    "such    as"    standard).          By

neglecting to observe any conflict or tension between Kleven and

Libowitz,     the    Chalik      court     implicitly        concluded          that    they

present the same standard.

      ¶43    Further,      the   pattern      jury   instruction          on    the    topic

also incorporates the Kleven standard.                 See JI-Civil 3086.7               The

      7
          JI-Civil 3086 provides in relevant part:

      Before a real estate broker is entitled to any
      commission under a real estate listing contract, the
      broker must procure a purchaser who is ready, willing,
      and able to meet the express terms of the listing
      contract. (A seller has the right to reject an offer
      that does not conform to the terms specified in the
      listing contract. When a seller refuses to accept an
      offer which is substantially in accordance with the
      listing contract, but which contains variances from
      the terms of the listing contract, the seller to
      relieve himself or herself from liability for the
      broker's commission must, when rejecting the offer,
      point out the variances to the broker so that the
      broker may be afforded an opportunity to obtain an
      offer that does comply.   However, where the variance
      is a substantial one, such as one that is directly in
      conflict with a material provision in the listing
      contract,   then  there   has   been  no   substantial
      performance by the broker which would entitle the
                                                      (continued)
                                           15
                                                            No.      2015AP2627



jury   instructions   committee's     comments    cite   both   Chalik     and

Libowitz, again declining to observe any tension between the

standards they present.

                                     B

       ¶44   Having determined that the Kleven standard applies, we

examine next the conditions in the offer to purchase at issue,

applying the law as set forth above.             Our analysis begins and

ends with the condition that Hermanson work without pay for an

undetermined    period   of   time   following    the    sale   of    Capital

Cartage.     Because we conclude that this condition constitutes a

substantial variance, it is dispositive, and we need not address

the other two alleged variances.

       ¶45   A review of the pleadings and attachments indicates

that the offer to purchase contains the following condition:

"Mary and Rolyn Hermanson agree to operate business as normal

until acquisition takes place and for Mary to stay on full time

and without pay for period outlined in proposed structure."                The

"proposed structure" appears to be a reference to the letter of
intent, which states:      "Seller stays on fulltime for period of 3

months to ensure proper transition.        Operates on part time basis

at seller discretion for rest of 2014.            Part time hourly rate

after year 2014 to be negotiated."

       ¶46   However, the "proposed structure" is not part of the

offer to purchase.       Addendum A (the last page of the letter of

       broker to the commission and the owner is under no
       obligation to specify the reasons for rejection.)


                                     16
                                                                          No.    2015AP2627



intent) is the sole page of the letter of intent attached to the

offer to purchase.           The "proposed structure" to which it refers

appears     on     the   first   page     of   the    letter      of   intent     and   was

neither attached to nor incorporated into the offer to purchase.8

By   itself      the     condition   in    the     offer     to   purchase       does   not

provide     any        "structure"      or        temporal       limitation       on    the

requirement        that     Hermanson      provide        free    labor     to    Capital

Cartage.

      ¶47     We       recognize     that         often      a     determination         of

"substantiality" is a factual question for the jury.                              See JI-

Civil 3086.            However, here we can decide the question as a




      8
       The offer to purchase contains an integration clause:
"This Offer . . . contains the entire agreement of the Buyer and
Seller regarding the transaction."    In the presence of such a
clause, the court is barred from considering extrinsic evidence
of any prior or contemporaneous understandings or agreements
between the parties.   Tufail v. Midwest Hospitality, LLC, 2013
WI 62, ¶30, 348 Wis. 2d 631, 833 N.W.2d 586.      Such a clause
indicates that the entire agreement between the parties has been
reduced to writing in the offer to purchase.     Id., ¶31.   The
offer to purchase had attached a single page of the letter of
intent, but not its entirety.       Because of the integration
clause, any parts of the letter of intent not attached to the
offer are extrinsic and not to be considered.


                                             17
                                                                    No.   2015AP2627



matter of law by examining the listing contract and offer to

purchase only.9

     ¶48       In this case there is no factual determination for a

jury to make for two reasons.             First, Chalik establishes that a

discrepancy in price between the listing contract and the offer

to purchase may be a substantial variance as a matter of law.

56 Wis. 2d at 155.           Second, the condition at issue here is so

extraordinary that no reasonable jury could determine that it is

not a substantial variance.

     ¶49       On the first point, our analysis begins with the long-

recognized premise that Hermanson's labor has monetary value.

See Garstka v. Russo, 37 Wis. 2d 146, 151, 154 N.W.2d 286 (1967)

(referring to the "value" of labor); Hoernig v. Hoernig, 109

Wis. 229, 231, 85 N.W.2d 346 (1901) (explaining that labor was

"conceded to [be] valuable").                  By imposing a condition that

Hermanson       continue     to   work   for   Capital    Cartage      without   pay

following the sale of the business with real estate, Erickson

saves    an    amount   of    money   equal    to   the   value   of   Hermanson's
labor.        In other words, by saving Erickson an amount of money

equal to Hermanson's salary for the duration of her unpaid work,

     9
       Unlike the dissent, we do not consider the negotiations
between Erickson and Capital Cartage or those parts of the
letter of intent not incorporated into the offer to purchase.
Erickson was not a party to the listing contract between Capital
Cartage and McNally and negotiations between he and Capital
Cartage cannot alter its terms. Likewise, the letter of intent
is not binding.     It is not signed and specifically states,
"[t]his draft is nonbinding[.]"     See Pinczkowski v. Milwaukee
Cty., 2005 WI 161, ¶44, 286 Wis. 2d 339, 706 N.W.2d 642.


                                          18
                                                                    No.    2015AP2627



the    purchase     price   of    the    business    with    real         estate   is

essentially lowered by that same amount.

       ¶50   As noted above, a variation in price between a listing

contract and an offer to purchase may constitute a substantial

variance as a matter of law.            See Chalik, 56 Wis. 2d at 155.             In

Chalik, the court observed that the listing contract required a

$28,000 down payment, yet the offer to purchase incorporated a

down payment of only $22,000.             Id.     The court determined that

this discrepancy was a substantial variance.             Id.

       ¶51   Likewise here, the condition in the offer to purchase

that    Hermanson    work    without      pay    constitutes    a     substantial

variance from the terms of the listing contract as a matter of

law.    By including Hermanson's free labor and thus in totality

proposing    a    price   lower   than    that   reflected     in    the     listing

contract, there exists a variance between the desired price as

reflected in the listing contract and the price offered.                           We

acknowledge that a specific monetary value for Hermanson's labor

is not in the record.         Whatever the total amount sufficient to
compensate the holdover owner for her work, it likely would




                                         19
                                                                                No.     2015AP2627



eclipse the $6,000 difference the Chalik court determined to be

a substantial variance.10

       ¶52    Given the case law, this monetary difference by itself

can    represent      a     substantial        variance,            but   we   need    not     rely

solely on it.         We observe also that the situation here presented

Hermanson with a Hobson's choice.                     If she wanted to complete the

transaction, she was left with either working without pay for an

undefined         period    of    time   or     paying          a    $72,000    commission       to

McNally.          This     puts   Hermanson          in    an       extreme    and    unwinnable

position.

       ¶53    A    condition        of   sale    requiring            a   business     owner     to

provide      her    full     time    labor      and       expertise       for    an   undefined

period       of    time     without      any     compensation             whatsoever      is    an

extraordinary departure from a listing contract that does not

include any labor at all, paid or otherwise, as part of the

sale.       Even construing the pleadings liberally, this condition

that Hermanson provide an unspecified amount of free labor is a

significant outlier.              There is thus no genuine issue of material
fact because no reasonable jury could find that this condition

in    the    offer    to    purchase      constitutes               anything    other    than     a

       10
       Kleven states that an offer term that is directly in
conflict with a material provision of the listing contract
constitutes a substantial variance. Kleven v. Cities Serv. Oil
Co., 22 Wis. 2d 437, 444, 126 N.W.2d 64 (1964).      We conclude
that under the facts of this case, the variance is substantial
as a matter of law. We do not address other factual situations
where the difference in price between the offer to purchase and
the listing contract may be deemed so de minimus as to not
constitute a direct conflict with a material provision.


                                                20
                                                                              No.    2015AP2627



substantial variance from the terms of the listing contract.

See    Town      of    Windsor,    265       Wis. 2d 591,        ¶5    (explaining          that

judgment      on      the   pleadings    is     appropriate       where       there     is    no

genuine issue of material fact).

       ¶54       Accordingly,     the        circuit     court        erred     in    denying

Capital Cartage's motion for judgment on the pleadings.11                                     By

procuring an offer in substantial variance from the terms of the

listing contract, there has been no substantial performance by

McNally which would entitle him to a commission, absent Capital

Cartage's acceptance of the offer.                       See Kleven, 22 Wis. 2d at

444.

       ¶55       In sum,     Kleven   remains the law of this state with

regard      to    determining     whether       a    substantial        variance       exists

between       the     listing     contract         and   the     offer        to     purchase.

Applying the Kleven standard, we conclude, as a matter of law,

that in the context of the sale of a business with real estate

where the sale did not go through,12 the condition in the offer

to purchase that Hermanson continue to work for Capital Cartage
without pay constitutes a substantial variance from the listing

contract.           Consequently,       we    determine        that    McNally        did    not

procure an offer to purchase "at the price and on substantially



       11
       Our determination that judgment on the pleadings should
have been granted is dispositive and we need not further discuss
the alternative argument addressing the jury instruction.
       12
       We emphasize that our determination in this case                                       is
narrowly circumscribed by the particular facts at issue.


                                              21
                                                            No.     2015AP2627



the terms set forth" in the listing contract and is not entitled

to a commission.

    ¶56     Accordingly, we reverse the court of appeals.

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

reversed.




                                   22
                                                                 No.   2015AP2627.akz


       ¶57    ANNETTE   KINGSLAND     ZIEGLER,        J.   (dissenting).       While

the court would reverse and conclude that no commission is owed

as a matter of law, I would reverse and remand for trial.                           I

conclude that it is error for this court, under these facts, to

determine as a matter of law that no commission could be due

because, in so doing, the court is acting as fact finder and is

usurping the role of the jury.

       ¶58    Competing inferences and conflicting evidence exist in

the record as to whether the transition services condition in

the offer to purchase would constitute a "substantial variance"

from the listing contract.            The jury never had the opportunity

to weigh and consider this evidence and reach a conclusion based

on the law because the trial court took the issue away from the

jury when it concluded as a matter of law that this provision

could not constitute a "substantial variance."                   The court here,

reaching the opposite conclusion, also takes the issue away from

the jury because it concludes, as a matter of law, that this

provision must constitute a "substantial variance."
       ¶59    I   disagree   with   the       court   because    the     reality   of

business      transactions,     the    application         of    precedent,        the

specific contractual language at issue here, and the conflicting

testimony in the record, all militate in favor of this being a

jury   question.        And,   as   the       court    aptly    notes,    "often    a

determination of 'substantiality' is a factual question for the

jury."       Majority op., ¶47 (emphasis added); see also Wis JI——

Civil 3086 (1993).           Why not here?            Just as the trial court



                                          1
                                                                No.   2015AP2627.akz


invaded     the    province   of   the    jury,   so   too    does    this   court.

Accordingly, I respectfully dissent.1

                  I.   THE REALITY OF BUSINESS TRANSACTIONS
      ¶60    The court here concludes as a matter of law that the

transition services condition must have value and therefore it

must constitute a "substantial variance."                    Majority op., ¶51.

But   the     fact     that   such       agreements    are     valuable      cannot

automatically void the need to pay a commission on the basis

that they constitute a substantial variance as a matter of law,

because      such      an   interpretation        would      cause    significant

uncertainty in business transactions.

      ¶61    The reality is that business transactions have many

moving parts, and the contracts and agreements that are part of

the sale of a business are no exception.               For example, documents

such as transition services agreements are quite common, and can

be of such importance that "[a] buyer may decide that, but for

transitional support from the seller . . . the deal is not worth

doing."2     Given this significance, it is no surprise that such


      1
       I do, however, agree        with the court's clarification of our
precedent that, "[a]lthough        a term of the offer to purchase that
is directly in conflict             with the listing contract is a
substantial variance, it           is not the sole manner in which
substantial variance may be        shown." Majority op., ¶41.
      2
       Cathy   Hwang,    Unbundled    Bargains:   Multi-Agreement
Dealmaking in Complex Mergers and Acquisitions, 164 U. Pa. L.
Rev. 1403, 1415 (2016); see also Barbara Melby, Considerations
in Transition Services Agreements in M&A Transactions, The Legal
Intelligencer,      Morgan     Lewis,      Mar.     1,      2016,
https://www.morganlewis.com/pubs/considerations-in-transition-
services-agreements-in-ma-transactions.


                                          2
                                                                       No.   2015AP2627.akz


documents might be referenced in an offer to purchase as terms

and conditions that must be addressed prior to closing the deal.

But   they    are,   and    should       be,    separate        and    distinct     legal

documents, and lawyers rather than brokers are the ones to draft

them, as they have specific legal requirements.                               See, e.g.,

Betten Co. v. Brauman, 218 Wis. 203, 208, 260 N.W. 456 (1935)

(holding that restrictive covenants not to compete in connection

with the sale of a business are enforceable only so long as they

are   "reasonably       limited,    in    respect         to   time,    territory,      and

trade, to the type of business theretofore conducted").

      ¶62    Additionally,       the     terms       of    such    agreements       often

contain     enforcement     mechanisms         and   remedies         that   define     the

rights of the parties for a reasonable time beyond closing.                             The

fact that the purchaser expects these types of agreements to be

a part of a business deal, and signifies as much in the offer,

should not, as a matter of law, automatically unwind the deal,

or relieve the seller of the requirement to pay the real estate

broker's commission.         To the contrary, placing the expectations
of the parties in the offer to purchase is a reasonable practice

because it ensures that there can be a meeting of the minds.                             If

the expectations are acceptable, appropriate documentation can

be drafted; if the expectations are unacceptable, they can be

further discussed.

      ¶63    In   the     case     at    issue,       the      purchaser       placed     a

transition services condition in the offer to purchase to ensure

a meeting of the minds.            Then, without any indication that this
expectation was unacceptable, the seller decided to not proceed

                                           3
                                                                 No.    2015AP2627.akz


with the sale.           But, instead of acknowledging the reality of

business transactions and addressing the thorny factual issue of

the   parties'       expectations,     the    court    concludes,      without      any

undisputed evidence in the record, that the transition services

to be provided are of such value that the price offered is not

really what it says it is.

      ¶64     In this regard, I note that there is no evidence in

the record as to the value of such services, and that the price

offered was to the very dollar that the seller had indicated to

the broker was acceptable: $1.2 million.                   How can the court

reach   the    conclusion      that    the    transition   services         condition

alone constitutes a variance, let alone a substantial one, when

the record is devoid of any evidence or testimony as to the

value of such services?          Majority op., ¶51 ("We acknowledge that

a specific monetary value for Hermanson's labor is not in the

record.").         In my view, the court makes an insupportable leap in

concluding that, simply because "labor has monetary value," the

transition services condition constitutes a substantial variance
in that it serves to offset part of the stated purchase price.

Majority op., ¶49.

      ¶65     As    a   consequence,   the    court    creates    uncertainty        in

business transactions moving forward because, in reality, its

opinion provides little more than an unworkable "smell test": it

is virtually impossible to discern when such a condition would

not   be    substantial      because    the    court    provides       no   test,   no

factors to consider, and no guidance for future cases.                      This, in
turn, makes it more difficult for parties to communicate and

                                         4
                                                                          No.    2015AP2627.akz


negotiate their expectations so as to achieve a meeting of the

minds.       I cannot accept this conclusion because it breaks with

the reality of how business is conducted and usurps the role of

the jury.

                      II.     THE APPLICATION OF PRECEDENT
       ¶66    It also departs from our precedent, and the proper

application of precedent makes it even more difficult to support

the manner in which the court reaches its conclusion.

               A.    Chalik Is Objectively Distinguishable.
       ¶67    In    Chalik,      the     listing        contract    required       a    $28,000

down     payment      in     a     sale-of-business             transaction,           but        the

offeror's total down payment was only $22,000.                            Peter M. Chalik

& Assocs. v. Hermes, 56 Wis. 2d 151, 155, 201 N.W.2d 514 (1972).

These facts demonstrate an offer that is quantifiably less than

the terms of the listing contract.                        Id.      That is not what we

have   here.         Here,       the   price       in    the     offer    to     purchase          is

identical to the price required under the terms of the listing

contract: $1.2 million.
       ¶68    Nonetheless,         the     court        surmises     that       there        is     a

substantial variance in the price term, because Hermanson's work

"likely would eclipse the $6,000 difference the Chalik court

determined to be a substantial variance."                           Majority op., ¶51.

There are two flaws in this analysis.                         First, the court provides

no support, evidentiary or otherwise, for its conclusion that

Hermanson's transition services "likely would eclipse [] $6,000"

in   value.         Second,      even     if   we       assume     that    her    transition
services      "likely        would       eclipse         []     $6,000,"        the     court's

                                               5
                                                                  No.      2015AP2627.akz


conclusion establishes that a $6,000 difference, regardless of

the value of the property at issue, automatically constitutes a

substantial variance.        Does the court intend the test to be that

when the value of a condition "likely would eclipse" $6,000

there must always be a substantial variance?                      This cannot be.

To be clear, I do not disagree that a difference of $6,000, in a

$28,000 term of listing, in 1965, was objectively significant.

See Chalik, 56 Wis. 2d at 155.               It not clear, however, that a

difference of $6,000, in a $1.2 million term of listing, in

2014, is equally, or objectively, significant.

      ¶69    In other words, unlike Chalik, the dollar figure in

the term of this listing and the dollar figure in this offer to

purchase were identical; and, unlike Chalik——where there can be

no real dispute that the dollar figure offered was significantly

different    than    the    dollar     figure        required——the      court      here,

without evidence or testimony, subjectively determines that it

knows how to value transitional services and that the value of

those    services   is     significant.         In    so    doing,    it    improperly
invades the province of the fact finder.

            B.   There Is No "Hobson's Choice" Under Kleven.
      ¶70    The court goes on to conclude that, although Chalik

dictates that "this monetary difference by itself can represent

a   substantial     variance,"    it     need    not       rely   solely      on   that.

Majority op., ¶52.         The court then presents a novel theory that

the     variance    is     substantial       because       "the      situation      here




                                         6
                                                                            No.       2015AP2627.akz


presented Hermanson with a Hobson's choice."3                                   Id.     The court

reasons that the transition services condition "puts Hermanson

in an extreme and unwinnable position" because she could either

work without pay, or pay a $72,000 commission.                             Id.

       ¶71      In   Kleven,       however,        we    instructed         that       the   seller

always       has      the        option——and          sometimes       the        obligation——to

communicate          with    the        broker    to     explain         that     an     offer    is

objectionable.              See     Kleven       v.      Cities      Serv.       Oil      Co.,    22

Wis. 2d 437, 443-44, 126 N.W.2d 64 (1964).                                Such communication

provides        clarity          with     regard        to     whether      a      variance       is

substantial          and     "afford[s          the     broker]       an        opportunity       of

correcting it."             Id. at 444.               But that is not what happened

here.      Here, without any communication or explanation, Hermanson

decided not to sell.

       ¶72      Nonetheless, the court surmises that Hermanson had no

choice but to work for free or pay $72,000.                              There are again two

flaws      in   this    analysis.              First,    there      is     no    uncontroverted

evidence in the record that Hermanson had to take-it-or-leave-
it.     Instead, the court interjects its own assumptions that her

decision to "not sell at this time" was on this basis, and, in

so    doing,     the    court      again       usurps        the   role    of    the     jury    and

assumes facts that are not in the record.                                   Second, even if

Hermanson       felt       she    had     to    take-it-or-leave-it,              she     had    the

       3
       A "Hobson's choice" is "an apparent freedom of choice when
there is no real alternative," such as being put in the position
of having to accept "one of two or more equally objectionable
things."    Hobson's choice Webster's Third New International
Dictionary 1076 (1986).


                                                  7
                                                             No.   2015AP2627.akz


option to communicate that she was "leaving it" because she

found this condition unacceptable.

       ¶73    In     other    words,   contrary     to   Kleven,    the    court

concludes that Hermanson had no real choices; and, contrary to

what Kleven instructs, Hermanson decided not to sell without any

explanation or objection, or offering any opportunity to cure.

Not selling is the seller's prerogative, but under the terms of

a listing contract, it might have consequences.

              III.    THE SPECIFIC CONTRACT LANGUAGE AT ISSUE
       ¶74    Specifically, I now turn to the contractual language

in the case at issue.            In general, listing contracts——as with

other contracts——can be, and often are, negotiated.                   A seller

might require that, for a broker's commission to be due, the

sale must be consummated; others, as here, might use a standard

form       that    requires    only    that   "an   offer   to     purchase   is

procured . . . at the price and on substantially the terms set

forth in [the listing contract] . . . even if Seller does not

accept [the] offer."          I conclude that the objective terms of the

listing contract should control and it is those objective terms,

and the conditions of the offer to purchase, that create the

issues of fact here.

       ¶75    The listing contract here,4 which dictates what McNally

had to do to earn a commission, states, in relevant part, as

follows:


       4
       See Form WB-6, available at http://www.wi.ctic.com/Assets/
Wisconsin-RRE-CTIC/pdfs/RealEstateForms/WB-6[1].pdf.


                                         8
                                                         No.    2015AP2627.akz

    TERMS OF LISTING: PRICE: One Million                Two     Hundred
    Thousand Dollars (1,200,000.00). . . .

    COMMISSION: Seller shall pay Broker's commission,
    which shall be earned if, during the term of this
    Listing: . . . 5) An offer to purchase is procured for
    the Business or included property by the Broker, by
    Seller, or by any other person, at the price and on
    substantially the terms set forth in this Listing and
    the standard provisions of the current WB-16 OFFER TO
    PURCHASE – BUSINESS WITH REAL ESTATE . . . even if
    Seller does not accept this offer to purchase.     See
    lines [261-264] regarding procurement. . . . Broker's
    commission shall be 6% . . . .
Lines 261-264 provide as follows:

    PROCURE:   A purchaser is procured when a valid and
    binding contract of sale is entered into between the
    Seller and the purchaser or when a ready, willing and
    able purchaser submits a written offer at the price
    and on substantially the terms specified in this
    Listing. A purchaser is ready, willing and able when
    the purchaser submitting the written offer has the
    ability to complete the purchaser's obligations under
    the written offer.
The listing contract is dated January 24, 2014, and is signed by

Mark McNally (as Agent for Broker) and by Mary Hermanson (as

Seller).

    ¶76    The   offer   to   purchase5   states   in   relevant    part   as
follows:

    GENERAL PROVISIONS The Buyer, Steven Erickson and/or
    assigns, offers to purchase the Business known as
    [Capital] Cartage, Inc. & Capital Moving & Storage.

    PURCHASE PRICE: One Million            Two     Hundred     Thousand
    Dollars ($1,200,000). . . .




    5
       See form WB-16, available at http://www.wi.ctic.com/Assets
/Wisconsin-RRE-CTIC/pdfs/RealEstateForms/WB-16[1].pdf.


                                    9
                                                                      No.   2015AP2627.akz

      DOCUMENT REVIEW/RECEIPT CONTINGENCY . . . This Offer
      is contingent upon Seller delivering the following
      documents to Buyer . . . see Addendum A attached.
Addendum A states in relevant part as follows:

      • Lender required good faith deposit (approximately
        $7,500 for appraisal and other costs) is split
        between seller and buyer once financing is fully
        approved, commitment letter issued and appraisal
        ordered.   Seller to be reimbursed in full for good
        faith deposit at closing.

      • Covenant agreements not to compete signed by Mary
        and Rolyn Hermanson (prior to close[6])

      • Mary and Rolyn Hermanson agree to operate business
        as normal until acquisition takes place and for Mary
        to stay on full time and without pay for period
        outlined in proposed structure.[7, 8]
The   offer    to    purchase      was   dated    February      15,    2014,    and    was

signed by Steven Erickson (as Buyer).                      Hermanson never signed

the offer, however, and the deal did not close; she also refused

to pay McNally's commission.             McNally sued.

      ¶77     At    trial,   and    on   appeal,     Hermanson         challenged      the

three     conditions     contained       in     Addendum    A    to     the    offer    to

purchase as "substantial variances" from the listing contract

      6
          Closing was set for April 15, 2014.
      7
       The "proposed structure" is outlined in the Letter of
Intent submitted to Hermanson on February 10, 2014, at a meeting
at The Madison Club.     See infra ¶¶28-30, 33.     The proposed
structure was as follows: "Seller stays on full time for period
of 3 months to ensure proper transition. Operates on part time
basis at seller discretion for rest of 2014.    Part time hourly
rate after year 2014 to be negotiated."
      8
       Presumably, these contingencies were to be dealt with
before closing, although the offer to purchase does not identify
the number of days within which the transition services
agreement must be delivered.


                                           10
                                                                          No.      2015AP2627.akz


that       would    relieve        her    of    the    obligation       to     pay    McNally's

commission.             The effect of these three conditions, however, has

been       interpreted        in    three      different    ways    by       three    different

courts.

       ¶78     Recall that the circuit court concluded as a matter of

law that these additional conditions of the offer to purchase

were not substantial variances.                       It reasoned that, where a term

is omitted from a contract (i.e., where the contract is silent

on a topic), that term is not material to the contract.                                     Thus,

because      the        listing    contract      was    silent     as    to    a     deposit,   a

noncompete,             and   any        transition      services,        there        were     no

substantial variances because the offer here, which "propose[d]

something          on    [those]        same    topic[s],    [is]        not       affecting    a

material provision of the listing contract because the listing

contract didn't care enough to include it."                             The circuit court

disallowed         argument        to    the    contrary    and    instructed         the     jury

accordingly.9

       9
       The circuit court instructed the jury, in relevant part,
as follows:

            A contract to constitute a valid business listing
       contract must in writing[,] describe the business,
       express the price for which the same may be sold, the
       commission to be paid and the period during which the
       agent or broker shall procure a buyer.    The contract
       must be complete at the time it is signed by the
       person agreeing to pay the commission.       Before a
       broker is entitled to any commission under a business
       listing contract the broker must procure a purchaser
       who is ready, willing and able to meet the express
       terms of the listing contract. A seller has the right
       to reject an offer that does not conform to the terms
       specified in the listing contract.

                                                                                    (continued)
                                                 11
                                                        No.   2015AP2627.akz


    ¶79    The court of appeals affirmed.         McNally v. Capital

Cartage, Inc., No. 2015AP2627, unpublished slip op., ¶3 (Wis.

Ct. App. Apr. 27, 2017).     But the appellate court's reasoning

was that Libowitz v. Lake Nursing Home, Inc., 35 Wis. 2d 74, 150

N.W.2d 439 (1967), was dispositive, because Libowitz held that

"a substantial variance in this context is limited to variances

that directly conflict with express terms in the corresponding

listing   contract."   McNally,     No.   2015AP2627,    ¶3.      Thus,   a

"substantial   variance"   cannot      "arise   from    conflicts      with




         When a seller refuses to accept an offer which is
    substantially in accordance with the listing contract
    but which contains variances from the terms of the
    listing contract, the seller to relieve himself or
    herself from liability for the broker's commission
    must when rejecting the offer point out the variances
    to the broker so that the broker may be afforded an
    opportunity to obtain an offer that does comply.
    However, where the variance is a substantial one, for
    example, one that is directly in conflict with the
    material provision in the listing contract, then there
    has been no substantial performance by the broker
    which would entitle the broker to the commission and
    the owner is under no obligation to specify the
    reasons for rejection.

         The court has determined that as a matter of law
    that the provisions in the offer to purchase that the
    seller share in the costs of appraisal, that the
    Hermansons sign noncompete agreements and that Ms.
    Hermanson continue to work for Capital Cartage after
    the sale are not substantial variances.

     These   jury  instructions   conform  to   the   form  jury
instructions, except that "real estate" is replaced with
"business" before "listing contract" throughout; and "such as"
is replaced with "for example" to introduce direct conflict as a
type of a substantial variance. See Wis JI——Civil 3086 (1993).


                                  12
                                                        No.    2015AP2627.akz


unexpressed but implied terms in a listing contract."                    Id.,

¶40.10

       ¶80   This court now determines the exact opposite of the

circuit court and court of appeals, and reverses.             And it relies

solely on the transition services condition to conclude as a

matter of law that, "[b]y imposing a condition that Hermanson

continue to work for Capital Cartage without pay following the

sale of the business with real estate . . . the purchase price

of the business with real estate is essentially lowered by that

same     amount."    Majority   op.,     ¶¶49-50   (citing     Chalik,    56

Wis. 2d at 155).     In other words, the value of this provision

alone results in a substantial variance.        Majority op., ¶5.

       ¶81   Where the trial court concluded as a matter of law

that the additional conditions of the offer to purchase were not

substantial variances and this court concludes as a matter of

law that at least one of them is, and for a different reason, it

becomes clear that it is not clear whether the additional terms

constitute    substantial   variances.     As   such,   determination     of
this issue as a matter of law invades the province of the jury,

particularly in light of the fact that often "a determination of

'substantiality' is a factual question for the jury."              Majority

op., ¶47.




       10
       I agree with the court's fine-tuning of Libowitz v. Lake
Nursing Home, Inc., 35 Wis. 2d 74, 150 N.W.2d 439 (1967), but
that does not eliminate the need for further legal analysis.


                                   13
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                        IV.    THE CONFLICTING TESTIMONY
      ¶82   Finally,      I    delve      into   the   competing     inferences         and

conflicting testimony in this record which establish that there

are   genuine    issues       of    material     fact,    demonstrating          that   the

court's determination that this is a "substantial variance" as a

matter of law invades the province of the jury.

                               A.     Trial Testimony
                   1.    The buyer: Erickson's testimony

      ¶83   Erickson testified that he met with Hermanson on three

occasions, only two of which are relevant to the analysis here.11

The first meeting took place in late January or early February

2014 at Capital Cartage, Inc.'s Cottonwood location; Erickson,

Hermanson, and McNally were all present.                       Erickson testified

that he arrived a little before McNally, and that, while they

were waiting, he introduced himself to Hermanson and talked with

her about her personal story and the business.                      He "thought that

the   two   of   [them]       hit    it    off   pretty    well."         When    McNally

arrived,    they   discussed         the    business      financials      and    how    the

business was run.         They also discussed how long it would take

Erickson to learn the business from Hermanson and Hermanson's

intention to retire:

      I asked her a series of questions such as if I was to
      buy this from you, Mary, would this take three months
      for me to figure out with you on board, you kind of

      11
       The second meeting——not relevant to the analysis——took
place in early February 2014 where Erickson, Hermanson, and
McNally discussed the draft copies of the 2013 tax returns
prepared by Hermanson's certified public accountant, Dennis
Kleinheinz.


                                            14
                                                           No.    2015AP2627.akz

       teaching me the ropes if I came on? Would it take a
       year?    We talked . . . about Mary's end intentions
       after it sold such as are you going to stay in the
       industry or are you planning on getting out.      We
       talked about that, that she would be selling it and
       moving on, she would not be involved in the moving
       industry at all anymore.
Erickson testified that "the way we left that meeting was we

were in a very great spot."

       ¶84   The third meeting took place on February 10, 2014, at

The    Madison   Club;    Erickson,    Hermanson,   and   McNally    were    all

present, as was another potential partner of Erickson's, Kevin

Wichman.     At this meeting, Erickson presented Hermanson with a

letter of intent and "walked through [it] kind of line by line

with    everybody."      The   price   offered   was   $1.05     million    plus

$40,000 at the end of 2014 if gross sales were at about 90

percent of what they were at the end of 2013, a package Erickson

testified was primarily "an incentive for Mary to . . . come on

board" to help with the transition.          There were also a number of

terms and conditions of sale, all of which, Erickson testified,

"were things that had already been discussed between Mary and I

and between Mark and I."
       ¶85   Regarding the transition services condition, Erickson

testified that:

       Mary agreed to stay on and to help with the transition
       process.   We needed to flush out the terms of that,
       whether it be my initial idea of if gross sale
       proceeds are over 950,000 I'll give you $45,000 at the
       end of the year. Mary had said something like I might
       only want to work 20 hours a week or I might want to
       get paid hourly.     And I had said things like I
       understand. We can figure that piece of it out.

                                       ***

                                       15
                                                           No.   2015AP2627.akz

      I just wanted Mary there long enough to teach me how
      to run the business. So this issue over the time that
      she was going to be there, it was something that we
      would just have to flush out, work out.   It wasn't a
      deal breaker.   It wasn't something either of us were
      fixated on.
To the contrary, Erickson testified that, "everything that was

communicated on from Mary's end at [the Madison Club] meeting

was   solely    regarding      the    [$1.05   million]   purchase    price."

Ultimately, Erickson raised his price to $1.2 million in his

firm offer to purchase dated February 15, 2014.12                But he heard

nothing from Hermanson on this offer, despite repeated attempts

to reach out, and on February 18, 2014, he received by email a

letter from Hermanson's attorney stating that "[t]he vote was

called and the motion to approve the offer to purchase failed to

achieve    a   majority   of    the    shareholders'   votes.[13]     Capital

Cartage has decided not to sell its business at this time."


      12
       The court notes that the offer to purchase contained an
integration clause, which the court concludes bars a circuit
court or jury from "considering extrinsic evidence of any prior
or contemporaneous understandings or agreements between the
parties." Majority op., ¶46 n.8. To support this conclusion it
cites Tufail v. Midwest Hospitality, LLC, 2013 WI 62, ¶30, 348
Wis. 2d 631, 833 N.W.2d 586, which dealt with a dispute between
a landlord and a commercial lessee regarding the terms of the
lease contract.   The dispute here is different.    First, there
are two contracts: (1) the listing contract between McNally and
Hermanson; and (2) the offer to purchase between Erickson and
Hermanson.   Second, the offer to purchase is not the contract
directly in issue in this case; rather, the offer to purchase
was a contract between Erickson and Hermanson, that Hermanson——
the only person party to both contracts——is attempting to
leverage to get out of the listing contract with McNally that is
at issue. Thus, Tufail is inapposite.
      13
       Mary and Rolyn Hermanson are the only shareholders of
Capital Cartage, Inc.


                                       16
                                                          No.   2015AP2627.akz



                 2.   The seller: Hermanson's testimony
       ¶86   Hermanson's     testimony      regarding    their      meetings

corroborated Erickson's to the extent that she testified that

she gave Erickson and Wichman a tour of the Cottonwood location

in early February 2014, and that she, Erickson, McNally, and

Wichman met on February 10, 2014, at The Madison Club.                   With

regard to the latter, Hermanson testified that she believed the

purpose of the meeting was to discuss the value of the building,

answer any questions on financials that they might have, and

generally find out what they thought the company was worth and

if they were really serious about buying it and taking over.

When she was presented with a letter of intent, she read it

through and testified that:

       [W]hen I got down to the bottom I looked up across at
       Steve [Erickson] and said, Steve, this will not work
       for Rolyn and I, and he said, What do you want Mary?
       I said, Well, this will not work for Rolyn and I.
       ¶87   She testified that she reviewed the letter of intent

again over the next 24 hours making more detailed, handwritten

comments and crossing out most of the terms and conditions.

With   regard   to    the   transition    services   condition,    Hermanson

testified:

       I wasn't willing to stay on full-time and most of all,
       not knowing for how long. I was willing to help. I
       was willing to help transition a new buyer but I
       wasn't willing to have a buyer tell me what I was
       going to be doing with my time.
Next to this term, she said she "made a note that [she] couldn't

possibly accept" it, but she did not specifically object to any
term at the Madison Club meeting, she never gave this marked up

                                     17
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copy to anyone, and she never discussed or asked for changes

based on her reservations.                     The only objection Hermanson made

was, as Erickson testified, to the purchase price.

                        3.     The broker: McNally's testimony
      ¶88    McNally           began      his    testimony          by     providing       some

background.             He    testified     that       he   has     been    a    mergers    and

acquisitions advisor and a business broker for 28 years, and

that he has four licenses related to his work: he is a certified

public accountant, a certified merger and acquisition advisor, a

certified valuation analyst, and a licensed real estate broker.

His work involves assisting companies with the sale of their

businesses, and, in doing so, he has prepared listing contracts

in   280    successful          transactions.           McNally      testified      that    the

listing contract is a form "available from the Department of

Regulation     &        Licensing."        He    also       testified      that    "the    real

estate     professional          doesn't       speak    with       the   offer,"    which    is

worked out collaboratively between the potential buyer and the

seller.

      ¶89    McNally also confirmed that he had been present for

the tour of the Cottonwood location and for the Madison Club

meeting where Erickson and Wichman "presented a letter of intent

that they had written themselves."                      He clarified that a "letter

of intent is——it's an understanding, it's an agreement that a

buyer      would    use        for   a    business.           It     doesn't      follow    the

Department         of        Regulation    &     Licensing          requirements. . . . I

cannot do a letter of intent."                   He did, however, receive a copy



                                                18
                                                         No.    2015AP2627.akz


of the letter of intent prepared by Erickson and Wichman and

thus was privy to the terms and conditions contained therein.

    ¶90   With   regard    to    the    transition   services    condition,

McNally testified that Hermanson never told him that she would

not help the buyer of the business in transitioning:

    Actually, it was      just the opposite. She struck me as
    one, wanting to        see the business continue and she
    would be willing      to help out for a reasonable period
    of time given the     seasonality of the business.

                                       ***

    [S]he was very proud of her company, in getting this
    established and recognized as one of the premier
    household storage and moving companies. She wanted to
    see it successful and she knew that Mr. Erickson
    didn't have a lot of experience in this industry and
    she was willing to assist for a period of time to
    ensure that the business would be properly run.
He testified that it was his impression that Hermanson's primary

concern was the price.          Here again, he clarified that "[t]he

list price is the price that the seller tells the real estate

professional this is what I'm going to sell my business for.

The asking price can be considerably more because you have to
allow for negotiations, so you've rarely come out of the gate

with the same price."     McNally then testified that:

    [T]he only thing [he and Hermanson] talked about was
    the price and the price was met, was $1,200,000.
    There were no objections with these other provisions.
    Those had been given to Mary.     She did not indicate
    anything on there to me that was a problem other than
    the purchase price and then we successfully were able
    to get the purchase price to $1,200,000.




                                       19
                                                                          No.   2015AP2627.akz

                     B.    Genuine Issues Of Material Fact
      ¶91     This    trial    testimony        demonstrates         that       there     is    a

genuine issue as to whether assisting Erickson in the transition

for a period of time was material to Hermanson, that is, whether

the transition services condition had value to her.                                    Erickson

testified that Hermanson had been amenable to staying on, under

conditions to be determined, to aid in the transition.                                  McNally

testified     that    Hermanson       "never     told    him        she    would       not"    be

amenable to those conditions.              But Hermanson testified that she

never agreed to staying on for a to-be-determined period of time

to   assist     in   the    transition     of     ownership.               This    competing

testimony     creates      a   genuine     issue        of    material          fact     as    to

substantiality        because,      absent       some        sort     of        notice        from

Hermanson, there is a genuine issue as to whether McNally should

have known that she would object to those terms.                            See Kleven, 22

Wis. 2d at 444.           Yet the court concludes that there can be no

question    that      a   transition      services       condition          amounts       to    a

substantial      variance,       because        "labor        has    monetary           value."

Majority op., ¶49.         In doing so, it usurps the role of the jury.
      ¶92     Additionally, even assuming that the court correctly

concluded that Hermanson's transition services had significant

value, concluding that their value was accounted for in the

final   offer    also      usurps   the    role    of        the    jury.         The    record

reflects that that Erickson increased his upfront payment offer

by   $150,000        between    the    time       the    letter           of     intent       was

distributed at the Madison Club meeting on February 10, 2014,
and submitting the firm offer on February 15, 2014.                               The letter

of intent had proposed an offer of $1.05 million upfront, plus
                                           20
                                                                      No.    2015AP2627.akz


$40,000 at the end of 2014 if gross sales were 90 percent of

what they were at the end of 2013; the firm offer to purchase

was for $1.2 million upfront.                      The record also reflects that

Erickson testified that the lower upfront amount in the letter

of intent was primarily "an incentive for Mary to . . . come on

board" to help with the transition.                       And Hermanson testified

that her only comment on the letter of intent was that "this

will    not    work   for    Rolyn      and    I."      There    are    at     least   two

inferences that could be drawn from this record: (1) that the

$150,000      increase      was   for    the       business;14   or    (2)     that    this

$150,000 increase was an upfront payment for Mary's transition

services.       The court, in determining this as a matter of law,

selects one of these options over the other.                     But we are not the

fact finder, and the one the court selects is only an inference

that may be drawn from the facts, not a conclusion compelled as

a matter of law.          Thus, even assuming that the court correctly

concluded that Hermanson's labor had material value, and that

that value is accounted for in the final price offered, it acted
as jury, not judge, in doing so.

       ¶93    In sum, the question of substantiality may not here be

determined as a matter of law because "the evidence is such that

a   reasonable     jury     could    return        a   verdict   for    the     nonmoving

party."       Majority op., ¶24 (citing Physicians Plus Ins. Corp. v.

Midwest Mut. Ins. Co., 2002 WI 80, ¶18, 254 Wis. 2d 77, 646

       14
       In this regard, McNally also testified that he never told
Erickson that the price term of the listing contract was $1.2
million.


                                              21
                                                                            No.    2015AP2627.akz


N.W.2d 777).        As such, the jury should consider this testimony,

be given the proper jury instructions, and then reach a verdict.

Thus,   I    would    remand       to    the    circuit            court    for     a    jury    to

determine whom to believe about whether the transition services

condition had value, what that value was, and whether it was so

valuable     that     that    McNally          is   rightfully             deprived       of    his

commission because he was "chargeable with [the] knowledge" that

an offer submitted with that condition would be unacceptable to

Hermanson.     Kleven, 22 Wis. 2d at 444.

                                   V.     CONCLUSION
      ¶94    I dissent because, in my view, it was error for this

court   to    conclude       as    a    matter      of       law    that     the    transition

services     condition       in    the    offer         to    purchase        constitutes         a

substantial    variance       from       the    listing        contract       such       that    no

commission could be due.

      ¶95    First,     concluding         as       a    matter       of     law        that    the

transition services condition is a substantial variance because

a   valuable   condition          effectively           lowers      an     offered       purchase

price   ignores       the    reality       that,         in    business           transactions,

valuable terms and conditions are regularly included in offers

to purchase as a means of communicating the expectations of the

parties moving forward.                Second, reliance on Chalik and Kleven

to support this conclusion is misplaced because unlike Chalik,

the majority has no quantifiable evidence of a difference in

value   and    no     objective          evidence         that       any     difference         is

substantial.         Additionally, contrary to Kleven, Hermanson had
options other than working for free or paying $72,000, namely,

                                               22
                                                                            No.   2015AP2627.akz


she had the option of communicating the unacceptableness of the

transition services condition to McNally.

       ¶96    Third, the disagreement among the courts as to whether

and    why    the    transition       services       condition         is     a   substantial

variance      under    the       specific     terms       of    this       listing      contract

counsels that a conclusion as a matter of law improperly invades

the province of the fact finder, particularly considering that

determinations        of       substantiality       are    often       a    matter      for   the

jury.     Fourth, that this is more properly a matter for the jury

is     confirmed      by       the   competing       inferences            and    conflicting

testimony apparent in the record.

       ¶97    In sum, I fear that the conclusion of the court could

cause    increased        difficulty     in    determining         when       a    dispute     is

properly an issue for the jury, when a commission might ever be

due,    and    how    a    court     should        analyze      conditions         common     to

business transactions when they have been referenced in an offer

to purchase.         Thus, although, like the court, I would reverse, I

would     reverse         on     other   grounds          and     remand          for    trial.
Accordingly, I respectfully dissent.




                                              23
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