                                                             2013 WI 56

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:              2011AP788
COMPLETE TITLE:        Christopher T. Beidel,
                                 Plaintiff-Appellant,
                            v.
                       Sideline Software, Inc.,
                                 Defendant-Respondent-Petitioner,
                       Michael C. Hall and Kevin C. Austin,
                                 Defendants.


                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                         Reported at 340 Wis. 2d 433, 811 N.W.2d 856
                                 (Ct. App. 2012 – Published)
                                    PDC NO: 2012 WI App 36

OPINION FILED:         July 2, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         January 9, 2013

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              William W. Brash III

JUSTICES:
   CONCURRED:          ZIEGLER, ROGGENSACK, J.J., concur. (Opinion
                       filed.)
  DISSENTED:           GABLEMAN, J., dissent.(Opinion filed.)
  NOT PARTICIPATING:   PROSSER, J., did not participate.

ATTORNEYS:
       For the defendant-respondent-petitioner, there were briefs
by Kim Grimmer and Travis J. West and Solheim Billing & Grimmer,
S.C., Madison, with oral argument by Travis J. West.


       For the plaintfiff-appellant, there was a brief filed by
Michael J. Aprahamian, Michael A. Bowen, Brian P. Keenan, and
Foley & Lardner LLP, Milwaukee, with oral argument by Brian P.
Keenan.
                                                                        2013 WI 56
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.       2011AP788
(L.C. No.    2009CV5862)

STATE OF WISCONSIN                             :            IN SUPREME COURT

Christopher T. Beidel,

              Plaintiff-Appellant

      v.
                                                                      FILED
Sideline Software, Inc.,                                         July 2, 2013

              Defendant-Respondent-Petitioner,                      Diane M. Fremgen
                                                                 Clerk of Supreme Court

Michael C. Hall and Kevin C. Austin,

              Defendants.




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



      ¶1      N. PATRICK CROOKS, J.       We review a published court of
appeals decision1 involving a dispute over the amount of money

due to a shareholder for his shares in Sideline Software, Inc.
(Sideline), a company that serves the fantasy football league

market      with   an   online   league-management      program.        Because      we
agree that the balancing of the equities required in a specific

performance        claim   did   not   occur   and     summary      judgment       was


      1
       Beidel v. Sideline Software, Inc., 2012 WI App 36, 340
Wis. 2d 433, 811 N.W.2d 856.
                                                                     No.   2011AP788



improperly granted, we affirm the court of appeals' decision to

reverse and remand for the circuit court to evaluate the claim

under the principles governing specific performance, determining

1) whether specific performance is available as a remedy, 2)

whether     there    was    a   substantial      enough     breach    to    warrant

specific    performance,        3)    whether    the    equities     lie   on     the

plaintiff's or defendant's side, and 4) whether anything would

make an order of specific performance unfair, unreasonable or

impossible.

      ¶2    The minority shareholder, Christopher Beidel, sought

specific performance of the Stock Repurchase Agreement2                    that he

and   Michael       Hall,   the      majority    shareholder,      had     signed.

Beidel's claim rests on two provisions of the Agreement.                          One

provision sets a stipulated price per share that is in effect

for two years; if that price expires without a new stipulation,

the share value is to be determined by an appraiser selected by

Sideline.      The    other     provision       gives   a   shareholder         whose

employment is terminated without cause while a stipulated price
is in effect the right to exercise a put option3 to sell his
      2
       In the Agreement, the parties stipulated that "[i]f a
controversy arises concerning the right or obligation to
purchase or sell any of the shares of Stock, such right or
obligation shall be enforceable in a court of equity by a decree
of specific performance."   "When a contract specifies remedies
available for breach of contract, the intention of the parties
generally governs." Ash Park, LLC v. Alexander & Bishop, Ltd.,
2010 WI 44, ¶37, 324 Wis. 2d 703, 783 N.W.2d 294.
      3
       A put option is "[a]n option to sell something (esp.
securities) at a fixed price even if the market declines; the
right to require another to buy." Black's Law Dictionary 1121
(7th ed. 1999).

                                         2
                                                                            No.     2011AP788



shares at the stipulated price.                     The dispute: Sideline thinks it

must       pay   only    the     appraised     value      for    Beidel's    shares,        and

Beidel      thinks       Sideline    must      pay    the    stipulated     share      price,

which is some six times more.4

       ¶3        After it became clear that Sideline was planning to

terminate him and was transitioning his duties to others while

delaying         the    termination      until      the   stipulated      price     expired,

Beidel gave written notice that he was exercising his put option

and    demanding         that    2,490    of   his    shares      be    purchased      at   the

stipulated price of $1,600 per share, which had not yet expired.

When       Sideline      refused     to      purchase       Beidel's      shares,      Beidel

brought a claim for specific performance, seeking to have the

court order Sideline to purchase the shares at the stipulated

price, for a total of nearly four million dollars.

       ¶4        At the heart of the equitable claim this case presents

is the question of whether it was fair for Sideline to time a

planned termination without cause to avoid paying Beidel $1,600

per share and instead choose to let the stipulated price expire
before terminating him so that Sideline could instead pay only

the fair market value of the shares.                        Beidel contends that Hall
had explicitly told him in 2008 Sideline would terminate Beidel

as     soon      as     the     stipulated     purchase         price    expired;      Beidel
contends         that    Sideline     essentially           terminated     him    in    2008,

       4
       The record does not disclose the precise difference
between the two prices, but there is evidence that the
difference is substantial; a purchase offer made to Sideline in
early 2009 was for an amount that would have bought out the
shareholders at $260 per share.

                                                3
                                                                               No.    2011AP788



transitioning his duties to others and unfairly delaying the

formal       termination       solely     to       avoid        paying       the   stipulated

purchase price then in effect.

        ¶5     Sideline does not dispute that the delay was due to a

desire to avoid the stipulated share price; rather, it asserts

that it was free to time the termination as it saw fit.                                     Under

Sideline's         interpretation       of     the    contract,          refusing      to    pay

Beidel       the   stipulated     share       price       was    not     a   breach    of    the

Agreement because Beidel's option to sell the shares for that

price    was       never   triggered:        no    termination         actually       occurred

until September 17, 2009.                 Sideline says Beidel is therefore

entitled, under the applicable provision of the Agreement, only

to "the fair market value of the [s]tock as determined by an

appraiser selected by Sideline."

        ¶6     The court of appeals decision we review reversed a

grant    of    summary     judgment      for       Sideline       on     the   grounds      that

"[t]he       circuit   court     did    not . . . consider               the   balancing       of

equities       required     in   a     case       where    a     party       seeks    specific
performance of a contract."                  Beidel v. Sideline Software, Inc.,

2012 WI App 36, ¶16, 340 Wis. 2d 433, 811 N.W.2d 856.                                The court

of appeals considered the fact that Beidel had sought specific

performance and focused on "the special implications of that

request for relief."             Id., ¶14. The court of appeals concluded

that although the circuit court's analysis correctly disposed of

one aspect of Beidel's argument, "there is more" to evaluating a

claim seeking specific performance.                   Id., ¶13.


                                               4
                                                                   No.    2011AP788



     ¶7        The circuit court had granted Sideline's motion for

summary judgment on the claim of specific performance, basing

its holding on the conclusion that the claim could not rest on

an allegation that Sideline had constructively terminated Beidel

because    a    required    element    of   constructive     termination         was

undisputedly absent.5         That is a correct statement of Wisconsin

law concerning the test for constructive termination.                     This was

not, however, a       claim    for    wrongful     termination,    and,     as   the

court of appeals rightly recognized, the claim that was made was

never properly addressed.

     ¶8     The    record   indicates,      too,    that   the    circuit    court

voiced    observations      that   would    be   relevant    to    the    task   of

balancing the equities.            As the court of appeals noted, the

circuit court appeared somewhat reluctant to dismiss Beidel's

claim on these facts; the circuit court stated that "[a] strong

argument can be made that this scenario is so strong [that it

resembles constructive termination]."

     ¶9     Besides that, it is potentially relevant to consider
the circuit court's disposition of two other counts that were a

part of this multi-count lawsuit,6 claims that were against Hall

     5
       At several points in the transcript, the circuit court
appears to make reference to equitable considerations, but the
basis for its ruling is clearly stated in terms of a
constructive termination analysis.
     6
       The amended complaint in this case, 09CV5862, lists three
claims, characterized as follows: Count I: Specific Performance
(as to Sideline Software, Inc.), Count II: Breach of Fiduciary
Duty (as to Michael C. Hall) and Count III: Breach of Fiduciary
Duty (as to Kevin C. Austin).

                                        5
                                                                           No.        2011AP788



and another individual and arose from the same underlying facts.

When those counts were             before       the   circuit     court        for    summary

judgment disposition along with this one, the court declined to

grant the defendants summary judgment for a notable reason: it

found       that   "there    are    questions         of   fact     with       respect      to

[whether]      they     act[ed] in    good      faith"     and    whether        they     were

acting in the best interest of the company or were "out to get

Mr.     Beidel."        Those    counts     remained       after        this     count     was

dismissed, and they proceeded to a jury trial after this count

was dismissed.7         While this appeal does not concern those claims,

the     motion     hearing      transcript       in    which      the    circuit        court

addressed all three counts clearly reflects the circuit court's

conclusion that summary judgment was precluded as to Counts 2

and 3 by genuine issues of material fact that related to good

faith among        the parties and        their       dealings     with        each    other.

There is no evidence in the record that those concerns were

addressed in the context of the specific performance claim, a

claim       that   by   definition    turns      on    equitable        considerations.


        7
       Beidel moved the court of appeals to take judicial notice
of the special verdict form from the jury trial.    The court of
appeals denied the motion, stating that "the verdict does not
affect either the result of this appeal or the analysis of this
opinion." Beidel, 340 Wis. 2d 433, ¶16 n.5. While reference was
made in the briefs to this verdict, we are limited to the
information in the record, which includes the summary judgment
motion hearing transcript referenced above but not the jury
verdict.   See Jenkins v. Sabourin, 104 Wis. 2d 309, 313, 311
N.W.2d 600 (1981) (materials that are not a part of the record
cannot be considered).



                                            6
                                                                                No.   2011AP788



Such        a    claim    should     not   be   disposed      of    on    summary     judgment

without addressing them.

        ¶10        Further, as the court of appeals observed, "[t]he rule

that parties to a contract act in good faith is universal."8

We have held that "[e]very contract implies good faith and fair

dealing between the parties to it," and that mere "compliance in

form, not in substance" is a breach of "the covenant of good

faith that accompanies every contract."9

        ¶11        We    therefore    agree     with    the    court      of    appeals   that

summary judgment was improperly granted in this case without the

required balancing of the equities that are due to a specific

performance claim and without a consideration of the potential

application of the covenant of good faith and fair dealing.                                 In

order to make a prima facie case that Sideline was entitled to

summary judgment, its motion would need to show a defense that

would           defeat   Beidel's     claim.     That    is,       it    must   successfully

attack the requirements for obtaining specific performance:

       - that specific performance is available as a remedy10;



        8
       Beidel, 340 Wis. 2d 433, ¶15 (citing Restatement (Second)
of Contracts § 205 (1981)).
        9
       Chayka v. Santini, 47 Wis. 2d 102, 107 & n.7, 176 N.W.2d
561 (1970).
        10
       Ash Park, 324 Wis. 2d 703, ¶37 (when a contract specifies
remedies available for breach of contract, the intention of the
parties generally governs). Otherwise "the primary criterion for
the availability of specific performance has been the inadequacy
of the legal remedy." 12 Joseph M. Perillo, Corbin on Contracts
§ 63.1 (rev. ed. 2012).

                                                7
                                                                           No.     2011AP788



        - that        there   has    been    a     substantial        enough     breach   to

             warrant specific performance11; and

        - that the equities lie on [the plaintiff's] side,12 and

             that nothing would make an order of specific performance

             unfair, unreasonable or impossible.13

In determining whether the requirements for specific performance

have been met in this case, it will be necessary for the court

to interpret and apply the provisions of the Stock Repurchase

Agreement, with special reference to Section 6, Termination of

Employment       without      Cause,    as   well        as   Sections   8(b)     and   (c),

which        relate     to    valuation.            In    this    case    the     analysis

necessarily involves interpreting the contract and determining

whether the undefined term "termination" is ambiguous, and if

so,   what      the    parties      intended       the   term    to   mean.      Extrinsic

evidence may be needed in order to make the determination of the

parties' intent.

      ¶12      Sideline's motion for summary judgment does not set

forth such a defense, and therefore fails to make a prima facie

        11
             Huntoon v. Capozza, 57 Wis. 2d 447, 452, 204 N.W.2d 649
(1973).
        12
       Venisek v. Draski, 35 Wis. 2d 38, 51, 150 N.W.2d 347
(1967); Gaugert v. Duve, 2001 WI 83, ¶46, 244 Wis. 2d 691, 628
N.W.2d 861 (describing the circuit court's balancing process in
that case thus: "The circuit court also concluded that as
between the [plaintiffs] and the defendants the equities were
perhaps equal due to the uniqueness of the property and the
competing interests at stake" and explaining that the circuit
court had concluded that one party's failure to take steps to
preserve a remedy tipped the scales).
        13
             Gaugert, 244 Wis. 2d 691, ¶47.

                                               8
                                                                            No.        2011AP788



case.14     Accordingly, we affirm the court of appeals and remand

for "the circuit court's determination where the bulk of the

equities     lie,       including       an    evaluation    of     what      the       parties

intended when they agreed to the stock re-purchase agreement,

and   whether      it    should     grant      specific     performance           as    Beidel

requested."        Beidel, 340 Wis. 2d 433, ¶16.                 A circuit court may

grant summary judgment to a party on remand as warranted after

the equities have been balanced, recognizing the implications of

the nature of a claim for specific performance and the well-

established obligation of good faith and fair dealing.15

                                   I.        BACKGROUND

      ¶13    The    case    arises       in    the   context     of   a     deteriorating

relationship       between    a     majority         shareholder      and    a     minority

shareholder.        We briefly set forth a description of the parties,

their relationship and the terms of the contract at the center

of this dispute.

      ¶14    Sideline      began     by       selling   a   computer        program         for

fantasy football league management; it later moved to online


      14
       See Swatek v. County of Dane, 192 Wis. 2d 47, 61-62, 531
N.W.2d 45 (1995) (describing the summary judgment methodology of
examining first whether a claim has been stated, then turning to
whether a prima facie case was made by the movant, and if so,
examining the opposing party's materials). The validity of the
claim in this case, the first step of the summary judgment
analysis, is not at issue.
      15
       Super Valu Stores, Inc. v. D-Mart Food Stores, Inc., 146
Wis. 2d 568, 577, 431 N.W.2d 721 (Ct. App. 1988) (Wisconsin law
does recognize that "[e]very contract implies good faith and
fair dealing between the parties to it, and a duty of
cooperation on the part of both parties.") (citation omitted).

                                               9
                                                                            No.    2011AP788



products for that same purpose.                 It was incorporated in 1998 by

Hall    and    Beidel,     who    had   been    college      friends.         Though     the

distribution of the shares changed over the years, Hall was from

the    beginning     the    majority      shareholder,        and     at    the    relevant

time, Hall owned 2,505 shares (slightly over half) and Beidel

owned 2,495 shares.              In the course of expanding the business,

the company purchased in 2001 a small company that had developed

an online product.           Its owner, Kevin Austin, possessed the kind

of programming skills that such online products required; he was

initially engaged as a consultant and ultimately was hired and

granted options to purchase outstanding shares of the company.

Austin       and   Beidel    did    not    have       a    good     relationship;        the

deterioration       of    that    relationship        appears     to   have       played   a

significant        role     in    Beidel's      eventual      departure           from   the

company.

       ¶15    In 2004, Beidel and Hall signed a Stock Repurchase

Agreement that was intended to "provide a means of assuring a

market for the sale of their Stock in certain specified events."
As     relevant     to     this    appeal,      the       Agreement        contained     the

following provisions.             It contained a stipulation that specific
performance is the appropriate remedy for breach.16                          It contained

a provision that if a shareholder (that is, Hall or Beidel) were
fired without cause, Sideline would buy that shareholder’s stock

       16
       In the Agreement, the parties stipulated that "[i]f a
controversy arises concerning the right or obligation to
purchase or sell any of the shares of Stock, such right or
obligation shall be enforceable in a court of equity by a decree
of specific performance."

                                           10
                                                    No.   2011AP788



at an agreed price.     The clause, section 6 of the Agreement,

reads:

     Termination of Employment Without Cause; Shareholder's
     Put Option.   Upon the termination of a Shareholder's
     employment with Sideline without cause (as defined in
     section 7(b) below), the terminated Shareholder shall
     have a continuing option to sell all or any part of
     the Stock owned by him, and upon exercise of such
     option, Sideline shall have the obligation to purchase
     all of Shareholder's Stock so elected for sale by such
     Shareholder, at the price and on the terms provided in
     sections 8 and 9 below. Provided, however, that such
     purchase and sale shall be subject to the restrictions
     and limitations set forth in section 11 hereof.    The
     terminated Shareholder shall exercise such option by
     providing 30 day[s'] prior written notice to Sideline
     of his decision to sell his Stock.

(Emphasis added.)   The referenced sections relevant here,

sections 8(b) and 8(c), provided for a two-year expiration

date and an alternative valuation:

     If no review of the Purchase Price is undertaken, the
     Purchase Price set forth in the prior year(s) shall
     continue in effect unless a period of 24 months
     expires from the last time in which the Shareholders
     and Sideline stipulated a Purchase Price.

     If the Purchase Price has not been stipulated     within
     the 24 months prior to a Purchase Event,          and a
     Purchase Event occurs, the Purchase Price shall   be the
     fair market value of the Stock as determined       by an
     appraiser selected by Sideline.
     ¶16   Pursuant to the Agreement, Beidel and Hall set the

stock price over the years between 2004 and 2007.   As the court

of appeals explained:

    The last stipulated price was agreed to in a document
    signed by both Hall and Beidel, dated March 6, 2007.
    It provided for a per-share valuation of $1,600, and


                               11
                                                                                 No.        2011AP788


       thus expired twenty-four months later because Hall and
       Beidel never agreed on a new valuation.

Beidel, 340 Wis. 2d 433, ¶4.
       ¶17        Because there was no new agreed-upon valuation, the

price stipulated to on March 6, 2007, was set to expire on March

6, 2009.          In October 2008, Hall told Beidel of his intention to

terminate Beidel.             In December of 2008, the two met to discuss

the    transitioning          of    Beidel's       duties     prior       to    April       of    the

following          year.       Following       that         meeting,       the    process          of

transitioning duties seemed to be underway in January of 2009.

That    month       another    company       interested        in    purchasing            Sideline

made an offer to purchase.                    The offer contained an employment

agreement and stock options for Hall, but none for Beidel.                                        On

January 20, Beidel submitted written notice to Hall that he was

thereby          exercising    his    put     option        under    the       Agreement         with

regard to 2,490 shares of Sideline stock.                            The notice asserted

that        he     had     already     been        "stripped        . . . of          [his]       job

responsibilities"             and     his      employment           had        "already          been

terminated by Sideline."               He demanded that Sideline purchase the

stock at the stipulated price in accordance with the Agreement.

       ¶18        When Sideline refused, Beidel filed a claim against

Sideline for specific performance.17                        Sideline moved for summary

judgment.           Sideline       claimed    that     it    was    entitled          to    summary

judgment          because     "Beidel        was     motivated       to        claim        he   was

constructively           discharged     in     order    to     increase         his    buy-out,"


       17
       He also             filed    related        claims    against       Hall       and    Austin
individually.

                                               12
                                                                            No.     2011AP788



because "there was no termination of Beidel prior to March 6,

2009," and because "Beidel cannot establish a single element of

constructive discharge" to establish that events prior to March

6, 2009, constituted termination.                     The summary judgment motion

described "Hall's right to postpone the termination, in order to

avoid the stipulated price," as "a significant contract right

that    Hall     and    Sideline         had     under       the    Agreement."             It

acknowledges that Hall "was not motivated to coerce Beidel into

resigning      in    advance       of    March     2009"      and    that     Hall        "was

motivated"      to   keep    him    employed       "until      at    least        after   the

stipulated      price       expired."            It     states      that      "Hall       had

specifically represented            to    Beidel      that    he    would    have     a   job

until at least then . . . ."              It also acknowledges that Beidel's

duties were documented for the purpose of "transitioning them to

others."       The motion for summary judgment does not contain any

argument concerning the equitable considerations relevant to a

claim of specific performance.

       ¶19   The circuit court for Milwaukee County, the Honorable
John   J.    DiMotto    presiding,        initially      granted      partial       summary

judgment to Sideline as follows:

       The plaintiff may not proceed on the specific
       performance claim against Sideline . . . by claiming
       that he was constructively discharged.     There is no
       genuine issue of material fact that one of the
       essential   elements  of   a   claim  of   constructive
       discharge, actual resignation by the employee, did not
       occur in this case.     . . .   The plaintiff will be
       permitted to proceed to trial on Count No. I, but he
       will be required to prove that he was actually
       discharged by Sideline Software Inc., without cause,
       prior to the expiration of the stipulated price.

                                           13
                                                                        No.    2011AP788



     ¶20     Following a subsequent hearing, the Honorable William

W. Brash, III, denied Beidel's motion for reconsideration and

dismissed the amended complaint with prejudice as to Sideline,

noting     that    Beidel    did     not    contend       that   he    was     actually

terminated by Sideline prior to March 7, 2009.                          A subsequent

motion for reconsideration was denied.

     ¶21     As    noted    above,    the       circuit    court      denied   summary

judgment as to related claims because the court found genuine

issues of material fact concerning the good faith dealings of

the parties.

     ¶22     The court of appeals reversed the grant of summary

judgment; Sideline petitioned for review, and this court granted

review.

                           II.   SPECIFIC PERFORMANCE

     ¶23     The question presented by the claim is whether Beidel

is entitled to specific performance of the repurchase of his

shares at the stipulated price of $1,600 each after Sideline

refused to honor Beidel's exercise of his put option under the
agreement.        We look to our case law on specific performance for

the principles that govern a specific performance claim.                         There
we see a series of determinations that a court is obligated to

make and the showing a party must make to prevail in such a
claim.

    ¶24     The threshold question is whether specific performance
is available.        In this case, as noted above, the parties agreed

in advance that it would be.                    In the agreement, the parties

stipulated that "[i]f a controversy arises concerning the right
                                           14
                                                                                  No.    2011AP788



or obligation to purchase or sell any of the shares of Stock,

such right or obligation shall be enforceable in a court of

equity by a decree of specific performance."                                 We have stated

that when a contract specifies remedies available for breach of

contract, the intention of the parties generally governs. Ash

Park, LLC v. Alexander & Bishop, Ltd., 2010 WI 44, ¶37, 324 Wis.

2d     703,     783        N.W.2d     294        (affirming          grant        of     specific

performance).         Where there is not such an agreement in advance,

"the     primary       criterion          for     the     availability            of     specific

performance has been the inadequacy of the legal remedy." 219

Corbin on Contracts § 63.1.                     "[T]he general rule defining the
instances      where       specific       performance         will    be   granted        may    be

stated as follows: where damages are an inadequate remedy and

the nature of the contract is such that specific enforcement of

it   will     not     be    impossible          or    involve      too     great        practical

difficulties        . . .      equity      will       grant    a     decree       of     specific

performance."         25    Samuel    Williston,         A    Treatise       on    the    Law of

Contracts             § 67:1          (4th              ed.          2002).             "Specific

performance . . . will              not     be       ordered    if     damages          would    be

adequate to protect the expectation                           interest of the injured

party."       Restatement (Second) of Contracts § 359(1) (1981).                                See

also Negus v. Madison Gas & Elec. Co., 112 Wis. 2d 52, 64, 331

N.W.2d      658,      665    (Ct.     App.        1983)       (holding        that       specific

performance was unavailable because statute limits plaintiff to

particular remedies:                "Because Negus must pursue a statutory

remedy available to him, the trial court erred in concluding


                                                 15
                                                                              No.     2011AP788



that specific performance was an available remedy. The order

granting specific performance therefore must be reversed.").

       ¶25     After     the     threshold          determination        is       made      that

specific performance is available, the analysis proceeds with a

series of questions.

       ¶26     First, is there a substantial enough breach to warrant

specific       performance?      In       a   case    involving     a    contract,          this

necessarily requires the court to interpret the terms of the

contract.         The Restatement (Second) of Contracts describes the

relationship of a breach and a claim of specific performance:

"[Specific performance] is seldom granted unless there has been

a   breach        of    contract,         either      by    non-performance            or     by

repudiation."          Restatement (Second) of Contracts § 357 cmt. a

(1981).18      In the context of a land contract, Huntoon v. Capozza

refined the question further to weigh the significance of the

alleged breach.         The court focused its analysis on whether there

were        breaches      "substantial          enough"      to     warrant          specific

performance.           Huntoon       v.   Capozza,     57   Wis.    2d   447,        452,   204

N.W.2d      649   (1973).        Huntoon       concerned     a     contract         between    a

seller      and   buyer    of    a    bar.      The    seller      filed      a     claim    for

specific performance seeking the full balance of the purchase

price and other costs after the buyer defaulted on the payments

following a fire at the property.                     In addressing the claim, the


       18
       It also acknowledges the possibility of seeking specific
performance prior to a breach: "In unusual circumstances,
however, it may be granted where there is merely a threatened
breach." Restatement (Second) of Contracts § 357 cmt. a (1981).

                                               16
                                                                                  No.       2011AP788



court        differentiated          between      various      claimed        breaches       on    the

basis        of    whether      they       were    "substantial          enough      to     justify

equitable          relief      to    the   vendors."        Id.        With    respect       to    one

claim, the failure of the buyer to pay an agreed-upon portion of

the real estate taxes, the court said, "[W]e are not prepared to

state on this record that such breach was material."                                         Id. at

453.         The       other   two     claimed     breaches,           failure    to       make    the

monthly           payment       on     time       and       failure      to      maintain          the

establishment's tavern license in good standing, were, the court

found, "substantial enough to justify equitable relief to the

vendors." Id. at 452.                 It is apparent from this distinction that
absent the "substantial enough" breach, equitable relief is not

justified.

       ¶27        In    determining        whether      a    substantial         enough      breach

occurred, it will be appropriate to consider, as the court of

appeals discussed, the covenant of good faith and fair dealing.

As this court has observed, "Every contract implies good faith

and    fair       dealing      between      the    parties        to    it,    and     a    duty    of

cooperation on the part of both parties." Chayka v. Santini, 47

Wis. 2d 102, 107 n.7, 176 N.W.2d 561 (1970).                                  The Chayka case

illustrates the common disfavor for following the letter but not

the spirit of an agreement,19 and in that case, it was deemed a
        19
       See, e.g., Mendelson v. Del. River & Bay Auth., 56 F.
Supp. 2d 436, 438 (D. Del. 1999) (rejecting a Maryland
jurisdictional challenge that "look[ed] only to the letter of
its contract, ignoring the spirit of the agreement" where the
contract stated that the product would be shipped to Virginia
but the manufacturer knew that the specially manufactured item
was intended for installation in Maryland).

                                                  17
                                                    No.   2011AP788



violation of the covenant of good faith and fair dealing to do

so.   What had happened in Chayka has been concisely summarized

this way:

      In Chayka, a husband and wife contracted to execute
      joint and reciprocal wills, which, upon one party's
      death, would leave all property to the other and, upon
      the survivor's death, would leave all property owned
      by the survivor to another relative. After the
      husband's death, the wife remarried and, shortly
      thereafter, conveyed virtually all of her property to
      her new husband (or, in some instances, to herself and
      her husband in joint tenancy). On the wife's death,
      her   estate  sought  to overturn    the  conveyances.
      Resisting the challenge, the second husband argued
      that the will contract had been fully performed
      because a will with all of the agreed-upon terms had
      been executed (and fully performed, in that the wife
      did   leave  the   property  that   remained  to   the
      relative).20
The Chayka court did not accept the second husband's argument

that the contract had been complied with, as the "property that

remained" had indeed been left to the other relative:

      This, as another court has well stated it to be, is "a
      mere play upon words." What she in fact has done has
      stripped nearly all of the flesh from the bones,
      leaving only a skeleton for testamentary disposition
      to [the relative who was to receive the property].
      This is a compliance in form, not in substance, that
      breaches the covenant of good faith that accompanies
      every contract, by accomplishing exactly what the
      agreement of the parties sought to prevent.
Chayka, 47 Wis. 2d at 107.




      20
       Foseid v. State Bank of Cross Plains, 197 Wis. 2d 772,
795, 541 N.W.2d 203 (Ct. App. 1995) (citations omitted).

                                18
                                                                                No.     2011AP788



        ¶28      The court of appeals in Foseid acknowledged what was

implicit in Chayka's holding——that "accomplishing exactly what

the agreement of the parties sought to prevent" constituted an

independent breach even if there was no other technical breach

alleged.         "[W]e do not consider that reference as a holding that

violation of the implied promise of good-faith dealing may not

be considered independent of any breach (or lack of breach) of

the    underlying            contract.       Indeed,    such     a    holding         would    run

contrary to the supreme court's decision in [Chayka]."                                      Foseid
v. State Bank of Cross Plains, 197 Wis. 2d 772, 795, 541 N.W.2d

203 (Ct. App. 1995)(citations omitted).

        ¶29      A party may not, however, employ the good faith and

fair dealing covenant to undo express terms of an agreement.

Reliance on the covenant of good faith and fair dealing did not

avail       a        franchisee        who     complained       that     "even         if     [the

franchisor's]             conduct        comported      with     the      terms         of     the

agreement,"            the   covenant        required    that     the    franchisor           "not

franchise a second store in [the franchisee's] market area."

Super Valu Stores, Inc. v. D-Mart Food Stores, Inc., 146 Wis. 2d

568, 577, 431 N.W.2d 721 (Ct. App. 1988).                        In Super Valu Stores,

the franchise agreement "specifically authorized" the franchisor

to    act       in    a   manner       which   could    harm    the     franchisee.            The

franchise            agreement     explicitly     stated       that    the   franchise         was

non-exclusive             and    the    franchisor      had     the     "sole    choice        and

discretion" as to whether to enter another franchise agreement

in the same community or any other.                       Id. at 572.           As the court

of appeals said in that case,
                                                 19
                                                                             No.     2011AP788


       [W]here, as here, a contracting party complains of
       acts of the other party which are specifically
       authorized in their agreement, we do not see how there
       can be any breach of the covenant of good faith.
       Indeed, it would be a contradiction in terms to
       characterize an act contemplated by the plain language
       of the parties' contract as a "bad faith" breach of
       that contract.
Id. at 577.             Unlike in Chayka, in Super Valu Stores there was

compliance with both the form and substance of the contract.

       ¶30     Having       determined            that     specific    performance         is

available and           warranted       by   a substantial        enough     breach by      a

party,       the    court       arrives      at    the    heart   of   the    matter——the

"balancing of the equities" in which it takes into consideration

all    the    facts       and    circumstances           and   determines    whether      the

plaintiff is entitled               to the equitable relief he seeks.                    "The

fairness of ordering specific performance depends on the facts

and equities of the individual case before the circuit court and

will vary from case to case."                      Ash Park, 324 Wis. 2d 703, ¶38.

This balancing has been described as "a judicial discretion":

       But this discretion is not one to be exercised at the
       mere will and pleasure of the judge. It must be a
       judicial discretion, controlled and governed by the
       principles and rules of equity. Its exercise therefore
       depends upon the existence of a multitude of facts,
       events, and incidents surrounding the transaction
       . . . .
Mulligan v. Albertz, 103 Wis. 140, 144, 78 N.W. 1093 (1899).
"Accordingly, specific performance will be granted when it is

apparent from a view of all the circumstances of the particular
case   that        it   will    serve     the     ends    of   justice."       81A    C.J.S.

Specific Performance § 4 (2004).                         Indeed, as one treatise has

stated, "[I]n determining the question [of whether to grant or
                                                  20
                                                                     No.     2011AP788



refuse a decree of specific performance], a greater variety of

facts is to be taken into consideration than is the case in an

action    for   damages   for    breach       of   contract."       12     Joseph    M.

Perillo, Corbin on Contracts § 63.1 (rev. ed. 2012).

     ¶31    As a part of its equitable balancing, the court must

consider    countervailing           concerns:      Are    there     any     factual

considerations     that   would       make     specific    performance       unfair,

unreasonable,     impossible,        oppressive,     harsh    or    unjust?         See

Gaugert v. Duve, 2001 WI 83, ¶47, 244 Wis. 2d 691, 628 N.W.2d

861 (stating, "The circuit court's analysis did not reveal any

factual    considerations       that    would      make   specific       performance

unfair,    unreasonable,        or    impossible."        (citing    Anderson        v.

Onsager, 155 Wis. 2d 504 at 512-13, 455 N.W.2d 885 (1990))).

This determination has been phrased in various ways:                     "The court

will not grant the relief unless satisfied that the claim is

fair and the contract equal and founded on consideration, that

it is not opposed to public policy, that the plaintiff is guilty

of no inequitable conduct or of delay constituting laches, and

that the result will not be oppressive, harsh or unjust."                      9 Jay

Grenig, Wisconsin Pleading and Practice § 81:2 (5th ed. 2012)

(citing cases).

     ¶32    Consistent with the latitude the circuit court has to

consider many factors is the latitude the circuit court has to

fashion a remedy. Wisconsin cases have recognized that once a

court has determined that equitable relief is appropriate, it

has wide latitude to fashion the remedy based on the equities of

the case. "This being an action for specific performance the
                                         21
                                                                         No.    2011AP788



circuit court sits as a court of equity and should be able to

fashion relief which will be equitable to both plaintiffs and

defendants."        Venisek v. Draski, 35 Wis. 2d 38, 51, 150 N.W.2d

347 (1967).         See also Town of Fond du Lac v. City of Fond du

Lac, 22 Wis. 2d 525, 531–32, 126 N.W.2d 206 (1964) ("A court of

equity has inherent power to fashion a remedy to the particular

facts.      Continued      failure    to   do   so    would     render    equity . . .

sterile and . . . arbitrary in its relief . . . ."); Am. Med.

Servs., Inc. v. Mut. Fed. Sav. & Loan Ass'n, 52 Wis. 2d 198,

205, 188 N.W.2d 529 (1971) ("The court of equity has always had

a traditional power to adapt its remedies to the exigencies and

the needs of the case; that was one of the great virtues and

reasons for the existence of courts of equity.");                        Ash Park, 324

Wis.   2d    703,    ¶73    ("[T]he    court    of     equity    has     the   power     of

devising its remedy and shaping it so as to fit the changing

circumstances of every case and the complex relations of all the

parties." (quoting 1 John Norton Pomeroy, A Treatise on Equity

Jurisprudence § 109 (5th ed. 1941)).

       ¶33    Finally, we note that this case arises in the posture

of a summary judgment motion. We review a summary decision de

novo, applying the same methodology as the circuit court.                             Green

Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816

(1987).      "Under [Wis. Stat. § 802.08], summary judgment must be

entered       'if       the     pleadings,           depositions,        answers         to

interrogatories,        and    admissions       on    file,     together       with    the

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

any material fact and that the moving party is entitled to a
                                           22
                                                                                  No.       2011AP788



judgment as a matter of law.'"                      Swatek v. County of Dane, 192

Wis.    2d    47,     61,    531   N.W.2d     45        (1995).       The    methodology          is

straightforward——evaluate              the        claim    first,      then       see       if   the

moving       party    has     presented       a    prima     facie     case       for       summary

judgment, and if so, examine the opposing party's proof:

       Our first step is to discern whether the pleadings set
       forth a claim for relief as well as a material issue
       of fact. If the pleadings meet this initial test, our
       inquiry shifts to the moving party's affidavits or
       other proof to determine whether a prima facie case
       for summary judgment has been presented. If the moving
       party has made a prima facie case for summary
       judgment, we then examine the affidavits and other
       proof of the opposing party to discern whether there
       exist disputed material facts, or undisputed material
       facts from which reasonable alternative inferences may
       be drawn, sufficient to entitle the opposing party to
       a trial.

Id. at 61-62.
                                      III. DISCUSSION

       ¶34     Having set out the analytical framework that applies

to a specific performance case, we now turn to the task of

applying it to the case at hand.                          We apply the methodology as
described by Swatek.               There is no dispute, as to the initial

question,      that     the    pleadings          set    forth    a   claim       for       relief,

specifically         for     equitable    relief,         pursuant      to    a    contractual

provision, as well as a material issue of fact.                                    The amended

complaint alleges that Sideline failed to pay the stipulated

price after Beidel exercised his put option.

       ¶35     The next question is whether the moving party, in this

case Sideline, has made a prima facie case for summary judgment.

"To    make    a     prima    facie    case       for    summary      judgment,         a    moving

                                              23
                                                                    No.   2011AP788



defendant must show a defense which would defeat the plaintiff."

 Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473                       (1980),

overruled on other grounds by Meyers v. Bayer AG, Bayer Corp.,

2007 WI 99, 303 Wis. 2d 295, 735 N.W.2d 448.

        ¶36       In order to prevail on his equitable claim, as we have

set forth above, Beidel would have to show that that specific

performance is available to him as a remedy,21 that there was a

substantial enough breach to warrant specific performance, that

the equities lie on his side, and that nothing would make an

order        of     specific      performance   unfair,       unreasonable       or

impossible. In order to make a prima facie case for summary

judgment, Sideline must therefore show "a defense which would

defeat       the    plaintiff."     Grams, 97   Wis.     2d   at   338.    In   the
context of a specific performance claim, the motion for summary

judgment must address the specific requirements the case law

sets forth for such a claim.

                        A.     The Summary Judgment Motion

        ¶37       An examination of Sideline's summary judgment motion

shows that while it has shown a defense which would defeat a

constructive         termination     argument   in   a   wrongful     termination

claim, it has not shown a defense which would defeat the claim


        21
       In the Agreement, the parties stipulated that "[i]f a
controversy arises concerning the right or obligation to
purchase or sell any of the shares of Stock, such right or
obligation shall be enforceable in a court of equity by a decree
of specific performance." When a contract specifies remedies
available for breach of contract, the intention of the parties
generally governs. Ash Park, 324 Wis. 2d 703, ¶37.

                                         24
                                                                    No.   2011AP788



Beidel actually brought.            Not only does the summary judgment

motion fail to address the equitable claim directly, it attempts

to support its position with facts and arguments that could be

construed to support Beidel's position on the equitable claim

(e.g., Sideline claims that it had a "right to postpone the

termination, in order to avoid the stipulated price," that Hall

"was not motivated to coerce Beidel into resigning in advance of

March 2009," and that Hall "was motivated" to keep him employed

"until at least after the stipulated price expired").                     None of

these    assertions     are   inconsistent       with   Beidel's    theory     that

Sideline     unfairly    refused     to     purchase    his    shares     at   the

stipulated price after delaying his termination for that express

purpose.     Because the summary judgment motion does not show a

defense that would defeat the equitable claim, it does not make

a prima facie case.           The analysis ends there, and the motion

fails.

      ¶38    We turn next to the two legal concepts that are likely

to   arise   again    when    the   case    is   remanded:    the   doctrine    of
constructive termination and the covenant of good faith and fair

dealing.     We examine each of the issues in order to acknowledge
and respond to the parties' arguments.

                          B. Constructive Termination
      ¶39    As noted above, Beidel was formally terminated by the

board of Sideline in September 2009.                He has asserted that he
was, in reality, terminated long before that.                 The significance

of the timing is that if the termination took place while the

stipulated price was still in effect, Beidel's shares are worth
                                       25
                                                                       No.     2011AP788



$1,600 each.      If the termination took place after the expiration

of the stipulated price, his shares are worth many times less.

       ¶40    The constructive discharge doctrine "recognizes that

some   resignations       are    coerced,     tantamount   to     a    termination."

Strozinsky v. Sch. Dist. of Brown Deer, 2000 WI 97, ¶68, 237

Wis. 2d 19, 614 N.W.2d 443.                 We addressed this scenario in

Strozinsky and described the purpose of the doctrine this way:

       Actual    discharge     carries    significant     legal
       consequences   for    employers,   including    possible
       liability for wrongful discharge. In an attempt to
       avoid liability, an employer may refrain from actually
       firing an employee, preferring instead to engage in
       conduct causing him or her to quit. The doctrine of
       constructive   discharge   addresses   such    employer-
       attempted 'end runs' around wrongful discharge and
       other claims requiring employer-initiated terminations
       of employment.

Strozinsky, 237 Wis. 2d 19, ¶68.

       ¶41    The court stated that the significance of the holding

was    that   "employers        cannot   escape    liability      by     coercing     a

resignation     instead     of    formally      uttering    the       words    'you're

fired.'" Id., ¶83.         It then stated what a plaintiff seeking to

establish      that   a   resignation       was   coerced       must    show:      "The

plaintiff must prevail under an objective standard, establishing

that conditions were so intolerable that a reasonable person

confronted with same circumstances would have been compelled to

resign." Id.

       ¶42    Beidel asserts that the situation here is governed by

the principle underlying            the constructive       discharge          doctrine—

                                         26
                                                                          No.     2011AP788


that substance is more important than form.                          Essentially, he

seeks,   at     least   in     the   context       of    an    equitable        claim,    an

interpretation of the constructive discharge test under which

the meaning of being "substantially terminated" would encompass

situations     where    an    employer      does    not       formally    terminate       an

employee,     and    the     employee      does    not    resign.         He    has     not,

however, brought to our attention any cases in which a court

found constructive termination had occurred where the employee

had not resigned.          Sideline agrees that the doctrine is key in

this case; indeed, it asserts that the dispositive question in

this case is whether Beidel can show that he was constructively

discharged prior to the expiration of the stipulated price of

the   shares.       Sideline     argues      that       Beidel    concedes       that    his

formal termination happened later, and he cannot show that he

resigned,     as    required    by   the     Strozinsky        elements.         Sideline

asserts that those facts are fatal to his claim that the put

option was triggered before the stipulated price expired.

      ¶43     We   disagree     in   key    respects       with    both    approaches.

Beidel is wrong because he thinks in an equitable case, the test

for constructive discharge can be applied in a less formalistic

way such that constructive discharge can be found to occur even

where there is not a resignation by an employee. Even though the

rationale underlying the constructive discharge doctrine is, as

Beidel points out, one of making sure that "substance prevails

                                           27
                                                                         No.     2011AP788


over form," courts have established the test for a constructive

termination, and every Wisconsin case we have found that meets

that test involves a resignation.              See Strozinsky, 237 Wis. 2d

19, ¶68.     The fact that the test was developed in order to help

courts do justice does not mean that it is to be applied without

regard to the required elements.               We see no need to alter the

Strozinsky    approach to testing           constructive          discharge      claims.

We recognize that this case is unusual in that it involves an

employee who is also a shareholder and director, who is arguably

compelled by     his own      self-interest        to     help    keep    the    company

functioning     and      profitable     and        therefore       prevented         from

resigning as might an employee without those additional roles.

We do not think it wise to alter an established and workable

test to fit the unusual situation presented here.

     ¶44   However,      we   cannot   agree       that    this    conclusion——that

the constructive termination test is not satisfied——disposes of

Beidel's     equitable     claim.       Sideline          argues     that       specific

performance     of    the      contract       is     precluded           because      the

constructive termination elements cannot be shown.                              But that

argument is based on a fundamental misapprehension of the claim

for specific performance: Beidel was not pursuing a claim for

wrongful termination and does not allege that the termination of

his employment, whenever it happened, violated any contract.                           As

the court of appeals held, the analysis does not end with the

                                       28
                                                                         No.   2011AP788


disposal of the constructive termination claim.                     Further, it is

unhelpful and unnecessary to graft the constructive termination

requirements onto the equitable analysis.                     On that point, we

agree with Beidel that "[t]he court's discretion in deciding

whether to grant specific performance should not be limited by a

test    imported      from       an    entirely      different       legal      theory

implicating entirely different concerns."

       ¶45   There    is   one    further,      related   consideration,          given

that Beidel's claim turns on the timing of the ending of his

employment with Sideline.             The foundation for Beidel's specific

performance claim is that his treatment by Sideline triggered

his right to exercise his put option prior to the expiration of

the    stipulated     share      price.        The   contract,      in    section    6,

"Termination     of    Employment       Without      Cause;   Shareholder's         Put

Option,"     cross-references         section    7(b)   for   the    definition      of

"Cause":

       "Cause" means (i) the commission of a felony or a
       crime involving moral turpitude or the commission of
       any other act or omission involving dishonesty,
       disloyalty or fraud with respect to Sideline, (ii)
       failure to devote his entire business time to the
       business of Sideline (subject to normal vacation leave
       or time off, illness or sick leave, or other periods
       of permitted absence), (iii) conduct tending to bring
       Sideline   into    substantial  public   disgrace   or
       disrepute, (iv) gross negligence or willful misconduct
       with respect to Sideline, or (v) any material breach
       of this Agreement.




                                          29
                                                                 No.    2011AP788


However,      we    observe   that   the     contract     does    not    define

"termination."22       In the course of weighing the equities in a

specific performance claim based on a contract, a court needs to

of   course    consider   the   terms   of   the   contract,     and    whether

"termination" is ambiguous, and if so, what the parties intended

the term to mean.23       All of this is appropriate to consider when

the circuit court weighs the equities involved.

              C.    Covenant of Good Faith and Fair Dealing

      ¶46     The   parties   also   dispute    the     application     of   the

covenant of good faith and fair dealing in the context of a


      22
       We briefly note again the language in Section 6
concerning what triggers the obligation of Sideline to purchase
the shareholder's stock at the price in effect at the relevant
time:

      Termination of Employment Without Cause; Shareholder's
      Put Option.   Upon the termination of a Shareholder’s
      employment with Sideline without cause (as defined in
      section 7(b) below), the terminated Shareholder shall
      have a continuing option to sell all or any part of
      the Stock owned by him, and upon exercise of such
      option, Sideline shall have the obligation to purchase
      all of Shareholder's Stock so elected for sale by such
      Shareholder, at the price and on the terms provided in
      sections 8 and 9 below.
      23
       Capital Investments, Inc. v. Whitehall Packing Co., 91
Wis. 2d 178, 190, 280 N.W.2d 254 (1979) ("After a contract has
been found to be ambiguous, it is the duty of the courts to
determine the intent of the parties at the time the agreement
was entered into. In resolving the ambiguity and determining the
parties' intent, the court may look beyond the face of the
contract and consider extrinsic evidence. Additionally, the
court may rely on the canons of construction which are designed
to ascertain the intentions of the parties entering into a
contract." (Citations omitted.)).

                                      30
                                                                             No.    2011AP788


specific       performance        claim,       especially      one    that    involves      an

employee's termination.                 We set out above the basic principles

that Wisconsin cases have discussed: that every contract implies

good faith and fair dealing between the parties to it, and a

duty     of    cooperation        on     the    part     of    both      parties;    that    a

violation of the implied promise of good-faith dealing may be

considered independent of any breach of the underlying contract;

and    that        the     covenant      cannot     be    used      to     turn    what    was

specifically authorized in the agreement into a breach.24

       ¶47     Sideline         makes    several       arguments         related    to    this

topic.        It argues that Beidel waived the opportunity to have

this doctrine discussed in connection with his claim, and it

appears       to    take    the   position      that     it    is    not   appropriate      or

permitted          for    the   court    to    consider       the    application     of   the

covenant of good faith and fair dealing unless Beidel "pled a

second cause of action that is independent and severable from

the    claim        for    breach       of    contract    based       upon    constructive




       24
       See discussion at ¶¶27-29, supra.       Contrary to the
dissent's claim (Dissent, ¶5), we do not conclude that the
covenant of good faith and fair dealing can "be used to vitiate
clear contractual language."

                                               31
                                                                                      No.     2011AP788


discharge."25           Sideline also argues that there is no application

of    the     covenant         of   good   faith        and    fair    dealing        because      the

covenant          is    employed      as     a    "gap-filler,"          to      be    applied      to

circumstances that are not contemplated by the language of the

parties' contract. In this case, Sideline asserts, the contract

has    no     gaps      to     fill   because       the       Stock   Repurchase            Agreement

contemplated            that        Sideline       "might       [choose]         to         make   the

termination effective after the stipulated price expired because

of changes in market conditions or other uncertainties impacting

the accuracy of the stipulated price."                           Finally, it asserts that

to the extent that the covenant of good faith and fair dealing

comes into play here, it was Beidel who breached the duty of

good faith by seeking to obtain a premium for his shares to

which        he   was    not    entitled         under    the    terms      of    the       contract.

Beidel argues that the covenant of good faith and fair dealing

is applicable in the analysis of an equitable claim and asserts

that because it is a part of all contracts, there has been no

waiver of its application here.

       ¶48        Sideline's        waiver       argument       is    not     persuasive.           It

would be absurd to remand for the balancing of the equities

        25
       We would note that Beidel's claim is pled as an equitable
claim.    The complaint lists three claims, characterized as
follows: Count I: Specific performance (as to Sideline Software,
Inc.), Count II: Breach of fiduciary duty (as to Michael C.
Hall) and Count III: Breach of fiduciary duty (as to Kevin C.
Austin).

                                                   32
                                                                           No.     2011AP788


where a party seeks specific performance and to do so on the

condition that the circuit court ignore breaches of good faith

and fair dealing by the parties.                       While the covenant of good

faith and fair dealing is implicit in all contracts and thus

relevant to all types of contract claims, it is most relevant in

an equitable case, which by its nature deals with the ideal of

fairness.       There is no requirement that a claim be pled as a

breach of the covenant of good faith and fair dealing in order

for the doctrine to play a part in the analysis of the case.                             As

discussed above at paragraph 29, the situation in Super Valu

Stores    was    one        in     which      the     franchisee       countersued       the

franchisor      on    the    grounds       that     the     franchisor's   decision       to

grant another franchise in the same city violated the duty of

good faith and fair dealing "even if [the franchisor's] conduct

comported with the terms of the agreement." Super Valu Stores,

146   Wis. 2d    at    577.         In   that       case,    the    contract     explicitly

permitted      the    franchisor         to     act    to     the    detriment     of    the

franchisee: The franchise agreement explicitly stated that the

franchise      was     non-exclusive          and      gave    the     franchisor       "the

right . . . to enter into . . . Retailer Agreements with other

parties   at    [its]       sole    choice      and    discretion."        Id.     at   572.

Entering into retailer agreements with other parties, therefore,

did not constitute a lack of good faith and fair dealing because

the franchisee had consented to it in the contract.                                Whether

                                              33
                                                                  No.   2011AP788


Sideline's    alleged      action    was    "contemplated    by     the    plain

language of the parties' contract," as the franchisor's right in

Super Valu Stores was, will be a matter for the circuit court to

decide.       Sideline's and Beidel's remaining arguments about the

application    of   good     faith    and   fair   dealing    may       also   be

appropriately directed to the circuit court on remand.26

                              IV.    CONCLUSION

     ¶49   We reiterate that the case law on specific performance

is abundantly clear that the equities must be weighed.                    It is

clear from a review of the record that such a balancing has

never happened in this case.           The motion for summary judgment



     26
       The standard jury instruction on the implied duty of good
faith, Wis JI-Civil 3044, may be of assistance.    It states in
part:

     Under Wisconsin law, the contract between (defendant)
     and (plaintiff) requires that each party act in good
     faith towards the other party and deal fairly with
     that party when (performing) (enforcing) (carrying
     out) the expressed terms of the contract.          This
     requirement to act in good faith is a part of the
     contract just as though the contract stated it.
      . . . Whether the duty to act in good faith has been
     met in this case should be determined by deciding what
     the contractual expectations of the parties were.
     Therefore, in deciding whether the defendant breached
     the duty of good faith by (e.g., terminating the
     contract . . . ), you should determine the purpose of
     the agreement; that is, the benefits the parties
     expected at the time the agreement was made.       This
     duty of good faith means that each party to a contract
     will not do something which will have the effect of
     injuring or destroying the (rights) (ability) of the
     other party to receive the benefits of the contract.

                                      34
                                                                                No.     2011AP788


failed to make a prima facie case that Sideline was entitled to

specific      performance because         it    did       not   show        a   defense      that

would defeat the equitable claim it opposed.

        ¶50   We   therefore     agree    with       the    court       of      appeals      that

summary judgment was improperly granted in this case without the

required balancing of the equities that are due to a specific

performance claim and without a consideration of the possibility

of a breach of the covenant of good faith and fair dealing.                                    In

order to make a prima facie case that Sideline was entitled to

summary judgment, its motion would need to show a defense that

would    defeat     Beidel's     claim.       That    is,       it    must       successfully

attack the requirements for obtaining specific performance:

        - that specific performance is available as a remedy;

        - that     there   has     been   a    substantial            enough          breach   to

          warrant specific performance; and

        - that the equities lie on his side, and that nothing would

          make      an     order     of       specific          performance             unfair,

          unreasonable or impossible.

In determining whether the requirements for specific performance

have been met in this case, it will be necessary for the court

to interpret and apply the provisions of the Stock Repurchase

Agreement, with special reference to Section 6, Termination of

Employment without Cause,            as   well       as    Sections          8(b)      and   (c),

which     relate     to    valuation.           In    this           case       the    analysis

                                          35
                                                                             No.        2011AP788


necessarily involves interpreting the contract and determining

whether the undefined term "termination" is ambiguous, and if

so,   what     the    parties       intended     the    term    to    mean.         Extrinsic

evidence may be needed in order to make the determination of the

parties' intent.

        ¶51    Sideline's motion for summary judgment does not set

forth such a defense, and therefore fails to make a prima facie

case.        Accordingly, we affirm the court of appeals and remand

for "the circuit court's determination where the bulk of the

equities       lie,       including    an     evaluation       of    what     the       parties

intended when they agreed to the stock re-purchase agreement,

and   whether        it    should     grant    specific        performance         as    Beidel

requested."         Beidel, 340 Wis. 2d 433, ¶16.                   A circuit court may

grant summary judgment to a party on remand as warranted after

the equities have been balanced, recognizing the implications of

the nature of a claim for specific performance and the well-

established obligation of good faith and fair dealing.

        By    the    Court.—The       decision     of   the     Court   of     Appeals        is

affirmed.

        DAVID T. PROSSER, J., did not participate.




                                              36
                                                                No.    2011AP788.akz


     ¶52     ANNETTE    KINGSLAND    ZIEGLER,       J.      (concurring).          I

concur   and   join    the   majority   opinion's        discussion     concerning

termination which is consistent with this concurrence and the

majority's     conclusion    that   the     question      of   when    Beidel    was

terminated should proceed before the trial court.                     I agree that

this case should be remanded because the facts need development

as to when a "termination" occurred under the terms of the Stock

Repurchase     Agreement     such   that      the   proper      remedy     can   be

determined.      Here, the remedy hinges upon when the termination

occurred.      Based on the record before the court, it is unclear

whether Beidel is entitled to the stipulated price of $1,600 per

share or the lower fair market value price.

     ¶53     As this case is a matter of contract interpretation, I

repeat the relevant contract language.                  Section 6 of the Stock

Repurchase     Agreement      governs       when    a    shareholder      who    is

terminated without cause is entitled to the stipulated stock

price:

    Shareholder's Put Option.    Upon the termination of a
    Shareholder's employment with Sideline without Cause
    (as defined in section 7(b) below), the terminated
    Shareholder shall have a continuing option to sell all
    or any part of the Stock owned by him, and upon
    exercise of such option, Sideline shall have the
    obligation to purchase all of Shareholder’s Stock so
    elected for sale by such Shareholder, at the price and
    on   the   terms  provided    in  sections   8   and   9
    below. . . .      The   terminated   Shareholder   shall
    exercise such option by providing 30 day[s'] prior
    written notice to Sideline of his decision to sell his
    Stock.




                                        1
                                                                         No.    2011AP788.akz


Sideline does not allege that Beidel was terminated for cause.

Its brief states that "Beidel was terminated as an officer and

employee."

     ¶54     Section      8    of   the   contract          governs    the     initial       per

share price and how the price would be determined thereafter,

including an annual review of the price.                      "Upon such review, the

Shareholders       and        Sideline    shall         either        stipulate      by      an

instrument in writing that there is no change in the price last

stipulated or agree upon a new Purchase Price by an instrument

in writing signed by them and Sideline . . . ."                          If the parties

did not negotiate a new price, the prior year's price continued

for one more year, such that a stipulated price could stay in

effect for a maximum of two years.                    If the parties still did not

negotiate a price two years after the last stipulated price, the

price of shares that were sold "shall be the fair market value

of   the   Stock     as       determined        by     an    appraiser         selected      by

Sideline."      The most recent stipulated price of $1,600 per share

was entered into on March 6, 2007, and it was set to expire on

March 6, 2009.

     ¶55   The     threshold        question         that    the   circuit      court     must

consider   is    whether        Beidel    was    "terminated"          before     March      6,

2009, as that term is used in the contract.                        If he was, then he

is entitled to the stipulated price of $1,600 per share.                                If he

was not, then he is entitled to a per share price determined by

the fair market value.1


     1
       The majority opinion agrees this is a question                                   to    be
resolved on remand. See majority op., ¶¶44, 45, 46 n.24.

                                            2
                                                         No.   2011AP788.akz


     ¶56    The goal of contract interpretation is to ascertain

the intent of the parties.          Kernz v. J.L. French Corp., 2003 WI

App 140, ¶9, 266 Wis. 2d 124, 667 N.W.2d 751.         When the contract

is plain and unambiguous, "we will construe the contract as it

stands."    Id. (citation omitted).        Under the contract language

and its call for specific performance as the remedy, when Beidel

was terminated is the central issue.

     ¶57    The   Stock    Repurchase     Agreement   does     not   define

"termination."     Black's Law Dictionary defines "termination" as

"[t]he act of ending something."           Black's Law Dictionary 1482

(7th ed. 1999).         Another dictionary defines "termination" as

"[t]he act of terminating or the condition of being terminated."

The American Heritage Dictionary of the English Language 1852

(3d ed. 1992).

     ¶58    Sideline argues that Beidel was formally terminated by

the board of directors on September 17, 2009.                Beidel argues

that he was terminated before the March 6, 2009, expiration of

the stipulated price.        He points to the fact that in October
2008, Sideline informed him that it intended to fire him and in

January 2009, transitioned his duties to other employees.                 See

majority op., ¶17.        On January 20, 2009, pursuant to Section 6

of the contract, Beidel submitted written notice purportedly to

exercise his put option.      Id.

     ¶59    One    reasonable        interpretation    of      the        word

"termination" in the Stock Repurchase Agreement is a complete

separation or a complete end to the shareholder's employment.

Another    reasonable   interpretation    of   "termination"    is   an    act

                                      3
                                                                          No.    2011AP788.akz


evidencing        an     employer's        intent    to     end     the     shareholder's

employment.         In this case, Sideline reduced Beidel's employment

duties significantly and admitted to running out the clock on

the    stipulated         price.          Whether    that     reduction          in    duties

constitutes a termination under the terms of the agreement is a

question of fact that is not resolved by the language of the

contract or by the record before the court.                         Cf. Loos v. George

Walter Brewing Co., 145 Wis. 1, 4, 129 N.W. 645 (1911) (stating

that when         employer    does    not permit          employee    to    perform       "the

substantial        or    principal        service   he     agreed     to    perform"      and

directs the employee to perform other tasks, an employee who

refuses      to    complete     new       tasks   "may     treat     such       refusal   and

direction as a discharge"); 1A Steven Plitt, Daniel Maldonada &

Joshua D. Rogers, Couch on Insurance § 8:68 (3d ed. 2010) ("The

employee's performance of administrative functions in relation

to the insured does not conclusively extend the employment.").

The   word    "termination"          in    the    Stock    Repurchase       Agreement      is

subject to more than one reasonable interpretation and the facts
in    the    record      do   not    conclusively         answer     what       the   parties

intended by "termination."                  Justice Gableman asserts that the

parties stipulated to the time period of the termination.                                 See

dissent, ¶67 n.2.             The record in that regard is not crystal

clear because the record does not contain a copy of the actual

stipulation.2           Therefore, I would remand this case for a hearing

       2
       Not only does the record not contain a firsthand copy of
the actual stipulation, but the secondhand information we do
have in the record is unclear as to the nature of the
stipulation.   The attorneys give two different portrayals of
what was stipulated. Sideline's attorney stated that "we've had
                               4
                                                                          No.    2011AP788.akz


before    the       circuit   court     to     determine        when   the       termination

occurred.

        ¶60    The     majority    opinion         remands      this   case          for     "the

circuit court's determination where the bulk of the equities

lie, including an evaluation of what the parties intended when

they agreed to the stock re-purchase agreement, and whether it

should        grant     specific       performance         as     Beidel        requested."

Majority op., ¶51.              The majority's approach of balancing the

equities should not be read to preclude summary judgment when

applying the terms of the contract.

       ¶61     I agree that unnecessarily injecting good faith and

fair dealing into a contract, especially when the terms of the

contract are clear, is improper.                   See dissent, ¶69.            Indeed, the

Seventh Circuit is rightly wary of using the doctrine of good

faith         and     fair    dealing        to      overcome       the         rights       and

responsibilities set forth in a contract.                       See id., ¶72 (quoting

Mkt. St. Assocs. Ltd. P'ship v. Frey, 941 F.2d 588, 593, 595

(7th Cir. 1991) ("[I]t is unlikely that Wisconsin wishes, in the
name     of    good    faith,     to    make       every    contract       signatory         his

brother's       keeper. . . .           It   would     be       quixotic        as    well    as

presumptuous for judges to undertake through contract law to

raise the ethical standards of the nation's business people.")).




a concession by the plaintiff that there was no actual
termination."   Beidel's attorney stated that "we did agree and
stipulate that we would not pursue that," meaning the actual
termination claim.   As I do not believe the record before this
court conclusively resolves whether Beidel was terminated under
the terms of the contract, I would remand.

                                               5
                                                                        No.   2011AP788.akz


       ¶62     Here, the critical        contract         term,      "termination," is

not fully developed within the facts of this case, the meaning

of    which    must    be   determined      on    remand.           Therefore,    I     would

remand       for   a   circuit   court      hearing       to    determine        when    the

termination occurred.            If the fact finder concludes Beidel was

not "terminated" prior to March 6, 2009, he will receive only

the   fair     market    value   of   his       shares.        If    the   fact-finder's

decision is to the contrary, the contract sets the per share

price he is to be paid.

       ¶63    For the foregoing reasons, I respectfully concur.

       ¶64    I am authorized to state that Justice PATIENCE DRAKE

ROGGENSACK joins this concurrence.




                                            6
                                                                              No.   2011AP788.mjg




        ¶65        MICHAEL     J.    GABLEMAN,        J.    (dissenting).             Today    the

court undermines contract rights in the name of good faith and

fair dealing, overturns thirty years of precedent, and inverts

the employer-employee relationship.                        I respectfully dissent.

            I.     BEIDEL FORFEITED HIS ARGUMENT CONCERNING THE COVENANT

                             OF GOOD FAITH AND FAIR DEALING

        ¶66        Before discussing the majority's legal conclusions, it

is important to first note that Beidel forfeited1 his argument

that        Sideline      violated     the    covenant        of      good    faith    and    fair

dealing.           Beidel never pled a claim related to the covenant of

good faith and fair dealing, nor did he raise the issue before

the court of appeals.                 The court of appeals, however, assisted

Beidel by plucking the remedy out of thin air and making it the

basis        for    its     decision    to    remand        to       the   circuit    court    to

determine          "where      the   bulk    of   the      equities        lie."      Beidel   v.

Sideline Software, Inc., 2012 WI App 36, ¶16, 340 Wis. 2d 433,

811 N.W.2d 856.
        ¶67        So how does the majority get around the forfeiture

obstacle?           By stating that "[i]t would be absurd to remand for

the    balancing          of   the    equities        where      a    party   seeks    specific

performance and to do so on the condition that the circuit court

ignore breaches of good faith and fair dealing by the parties."

        1
       The majority refers to Beidel "waiving" his argument but
"forfeiture" is the more accurate term.    See State v. Ndina,
2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 ("Whereas
forfeiture is the failure to make the timely assertion of a
right, waiver is the intentional relinquishment or abandonment
of a known right.") (citation omitted).

                                                  1
                                                                           No.    2011AP788.mjg


Majority op., ¶48.             But this puts the cart before the horse.

Given       that    the   majority         is    holding        that    the      constructive

discharge          doctrine    does        not       apply,     and    that      constructive

discharge      was     the    entire       justification         for   Beidel's      specific

performance         claim,     it     is     unclear       why    this     court      is   not

dismissing         Beidel's     complaint            and   is    instead      ordering     the

circuit court to consider a claim that was never pled.2




        2
       The concurrence considers a remand appropriate for further
fact-finding on whether Beidel was actually terminated during
the relevant time period.    Concurrence, ¶59 n.2.    I read the
record differently. In my view, Beidel conceded that he was not
actually terminated within the relevant period and a hearing on
the issue is therefore unnecessary.

     At a telephonic conference regarding Beidel's motion for
reconsideration, Sideline's attorney stated: "I think we've had
a concession by [Beidel] that there was no actual termination of
him by Sideline . . . . [B]ecause of that prior concession by
[Beidel], I would like to prepare the order [dismissing Beidel's
motion for reconsideration]."     Beidel's attorney then asked
Sideline's attorney to "send it to me before you send it in.
We'll make sure it's in the right form before we even get it to
the judge."    The following month the circuit court signed the
order denying Beidel's motion for reconsideration.     The order
contained the following language:       "Further, based on an
agreement of the parties placed on the record on January 27,
2011, that Plaintiff [Beidel] does not contend he was actually
terminated by Sideline prior to March 7, 2009, this Order
resolves all claims as to Sideline's alleged liability to
Plaintiff."   No party ever objected to this language, and no
party objects to it now.

                                                 2
                                                                             No.    2011AP788.mjg


        ¶68    While       I    acknowledge        that      appellate   courts          have    the

inherent authority to consider issues raised for the first time

on appeal, State v. Huebner, 2000 WI 59, ¶¶27-28, 235 Wis. 2d

486, 611 N.W.2d 727, this discretionary power should be used

sparingly.          Green v. Hahn, 2004 WI App 214, ¶21, 277 Wis. 2d

473, 689 N.W.2d 657.                  Moreover, our forfeiture doctrine permits

us   to    consider        issues      or    arguments        not   raised;        it    does    not

extend to causes of action that were never pled.                                         Sohns v.

Jensen, 11 Wis. 2d 449, 458, 105 N.W.2d 818 (1960) ("Where an

issue is neither pleaded nor litigated in the trial court, this

court      ordinarily          will    not    consider         it   on   appeal . . . .");

Murphy v. Martin, 58 Wis. 276, 280, 16 N.W. 603 (1883) (noting

that      it   is    not       the    "province        of    this   court"    to        "form   new

issues").           As we recently stated, "The mutual consolation of

forfeiture is that each party can be confident that a right

forfeited       by     the       other      will       not    be    relitigated          in     some

subsequent appeal or proceeding."                           State v. Soto, 2012 WI 93,


     I regard the exchange between the attorneys quoted above as
an oral stipulation, subsequently memorialized in the court's
order, and binding on the litigants.       See, e.g., Wyandotte
Chemicals Corp. v. Royal Elec. Mfg. Co., Inc., 66 Wis. 2d 577,
589, 225 N.W.2d 648 (1975) ("Generally then, oral stipulations
made in open court, taken down by the reporter, and acted upon
by the parties and the court are valid and binding.") (citation
omitted). In my opinion, the doctrine of claim preclusion would
thus bar Beidel from making an argument that he was actually
terminated under the hearing envisioned by the concurrence. See
N. States Power Co. v. Bugher, 189 Wis. 2d 541, 551, 525 N.W.2d
723 (1995) (describing the elements of claim preclusion as: "(1)
an identity between the parties or their privies in the prior
and present suits; (2) an identity between the causes of action
in the two suits; and (3) a final judgment on the merits in a
court of competent jurisdiction.").

                                                   3
                                                                                      No.   2011AP788.mjg


¶36, 343 Wis. 2d 43, 817 N.W.2d 848.                               Or as Justice Scalia has

put it, the purpose of applying the forfeiture rule is to ensure

that    the    trial    remains           "the    main          event,"         and    not    simply      a

"tryout on the road to appellate review."                                  Freytag v. Comm'r of

Internal       Revenue,       501        U.S.         868,       895       (1991)       (Scalia,        J.,

concurring).           The    court           today       provides         no    justification          for

ignoring the forfeiture rule and giving Beidel——a sophisticated

party who has been ably represented throughout this litigation——

a shot at a second trial.                        In this respect the majority——much

like the court of appeals before it——serves as advocate rather

than adjudicator.

              II.    THE COVENANT CANNOT OVERRIDE EXPRESS TERMS OF A

                                               CONTRACT

        ¶69   The most important fact in this case is that Sideline

acted    completely          in       accordance          with     its      contractual           rights.

While    it    is    true     that       the     covenant          of      good      faith    and       fair

dealing       inheres    in           every    contract,           this         equitable        doctrine

cannot,       contra     the           majority,           be     used          to    vitiate       clear
contractual         language.           Instead,          the     notion        of    good       faith is

meant    to    serve    as        a    gap-filler          where       a    contract        is    silent.

United States v. Basin Elec. Power Coop., 248 F.3d 781, 796 (8th

Cir. 2001).         It may not "block use of terms that actually appear

in the contract," and it has "nothing to do with the enforcement

of   terms      actually          negotiated."                  Continental           Bank,      N.A.    v.

Everett, 964 F.2d 701, 705 (7th Cir. 1992) (Easterbrook, J.)

(citation omitted).                   Indeed, in a recent decision the United

States Supreme Court unanimously held that equitable remedies

                                                      4
                                                              No.   2011AP788.mjg


cannot trump the plain terms of a contract and may be used only

to fill contractual gaps.            US Airways, Inc. v. McCutchen, 569

U.S. __, 133 S. Ct. 1537, 1546-47, 1549-50 (2013).                  Here, there

are simply no gaps to be filled.

        ¶70    The majority seems to recognize these principles when

it states that "[a] party may not, however, employ the good

faith and fair dealing covenant to undo express terms of an

agreement."       Majority op., ¶29.        In fact, the majority quotes

(but    then    ignores)   the   following    language      from    a    court   of

appeals opinion:

       [When] a contracting party complains of acts of the
       other party which are specifically authorized in their
       agreement, we do not see how there can be any breach
       of the covenant of good faith. Indeed, it would be a
       contradiction   in  terms   to   characterize  an  act
       contemplated by the plain language of the parties'
       contract as a "bad faith" breach of that contract.
Super Valu Stores, Inc. v. D-Mart Food Stores, Inc., 146 Wis. 2d

568,    577,    431   N.W.2d   721   (Ct.   App.   1988).     The       majority's

knowing disregard of such a fundamental principle of contract

law is inexplicable.       It appears that the majority either thinks

that the concept of good faith and fair dealing is much broader

than it is, or perhaps it wants to expand the doctrine with this

case.     In any event, the doctrine of good faith and fair dealing

is plainly inapplicable when a scenario is covered by the terms

of a contract.

       ¶71     Two of the leading lights of the law and economics

movement, Judges Frank Easterbrook and Richard Posner of the

United States Court of Appeals for the Seventh Circuit, have

sharply criticized the idea——advanced by the majority——that a
                                        5
                                                                                 No.   2011AP788.mjg


party's bargained for contractual rights can be superseded by

the ethereal good faith requirement.                               As Judge Easterbrook has

said, "Parties to a contract are not each others' fiduciaries;

they     are        not     bound       to    treat          customers        with         the     same

consideration reserved for their families."                                Kham & Nate's Shoes

No. 2, Inc. v. First Bank of Whiting, 908 F.2d 1351, 1357 (7th

Cir. 1990).          An individual is "entitled to enforce [a contract]

to the letter," even if this causes "great discomfort" to the

other party.          Id.    The essence of an at-will contract is that an

"employer      may        sack    its     employee           for    any    reason      except       one

forbidden by law, and it need not show 'good cause.'"                                            Id. at

1358.

        ¶72    In     a     similar       vein,         Judge       Posner——in         a    decision

interpreting         Wisconsin          law——wrote           that    "it    is    unlikely         that

Wisconsin      wishes,       in     the      name       of   good    faith,      to     make      every

contract signatory his brother's keeper. . . .                                In fact the law

contemplates that people frequently will take advantage of the

ignorance      of     those      with     whom      they       contract,      without        thereby
incurring liability."               Market Street Assocs. v. Frey, 941 F.2d

588, 593-94 (7th Cir. 1991).                   What is more, "even after you have

signed a contract, you are not obliged to become an altruist

toward the other party and relax the terms if he gets into

trouble in performing his side of the bargain."                                        Id. at 594.

Judge Posner warned that "[i]t would be quixotic as well as

presumptuous for judges to undertake through contract law to

raise the ethical standards of the nation's business people."

Id. at 595.          Living in a free enterprise society means that we

                                                    6
                                                                   No.   2011AP788.mjg


must accept that some contracts may "place one party at the

other's mercy."     Id.

      ¶73   When Beidel and Hall entered into the stock repurchase

agreement, both knew (or should have known) that the put option

would be subject to the whims of the marketplace.                            For some

reason, the majority has decided to immunize Beidel and punish

Hall for the bargain that each struck.                 In doing so, this court

has just loosed a great deal of uncertainty upon contract law in

the   State   of   Wisconsin,    and       in    the     process      inverted     the

employer-employee     relationship     by       ceding    some   of      a   company's

termination authority its workers.               At the very least, an at-

will employee can now raise a colorable claim on the meager

basis that he was terminated at a time inconvenient for him and

his stock options.        This court would do well to heed the words

of Judge Learned Hand: "[I]n commercial transactions it does not

in the end promote justice to seek strained interpretations in

aid of those who do not protect themselves."                James Baird Co. v.

Gimbel Bros., Inc., 64 F.2d 344, 346 (2d Cir. 1933).
       III. THE MAJORITY OVERTURNS A THIRTY-YEAR-OLD DECISION OF

                                THIS COURT

      ¶74   In deciding that Beidel can present a factual argument

that the timing of his firing was in bad faith, this decision

overturns, sub silentio, Brockmeyer v. Dun & Bradstreet, 113

Wis. 2d 561, 335 N.W.2d 834 (1983), a case not even mentioned by

the majority.      There, Brockmeyer was fired for smoking marijuana

in front of his employees, poor job performance, and having an

affair with his secretary.           Id. at 565.            Despite having no

                                       7
                                                                      No.   2011AP788.mjg


employment      contract,      Brockmeyer         filed    a     wrongful     discharge

action.      Id. at 564-65.          The issue in the case was whether an

at-will employee could bring a wrongful discharge action.                              See

id. at 563.

       ¶75    We began by recognizing the American common law rule,

which was that an employer may discharge an at-will employee

"for good cause, for no cause, or even for cause morally wrong,

without      being   thereby    guilty       of   legal     wrong."         Id.   at   567

(citations     omitted).        We    then    noted       that   federal     and     state

statutes have since modified the concept of an at-will employee

such    that    certain     protected        classes       cannot     be     fired     for

discriminatory reasons.          Id. at 567-68.             Consistent with these

statutory trends, state courts across the country developed two

common law causes of action for terminated at-will employees.

Id. at 568.      One is the "public policy exception," which allows

a discharged employee to recover if "the termination violates a

well-established and important public policy."                      Id. at 569.        The

other cause of action is broader, and provides that an employer
has an implied duty to terminate an employee only in good faith.

Id.    A discharge in bad faith would thus constitute a breach of

contract.      Id.

       ¶76    This court adopted the public policy exception while

expressly rejecting the bad faith termination cause of action.

As we stated, "We refuse to impose a duty to terminate in good

faith into employment contracts.                  To do so would 'subject each

discharge to judicial incursions into the amorphous concept of

bad faith.' . . . Imposing a good faith duty to terminate would

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unduly       restrict     an    employer's      discretion      in     managing       the

workforce."       Id. (citation omitted).            That has been the law for

thirty    years.         With    today's   decision      that   Sideline         is    not

entitled to summary judgment for exercising a clear contractual

right because the timing of Beidel's termination may have been

in bad faith, the majority overrules Brockmeyer and erodes at-

will employment contracts.

          IV.     THE RECORD DOES NOT SUPPORT A FINDING OF BAD FAITH

       ¶77    Finally, if this court is going to adopt the bad faith

termination cause of action, it is worth pausing to consider

whether Sideline actually acted in bad faith towards Beidel.

Our decision remands this case to the circuit court to determine

which party has a stronger equitable claim.                         As I have made

clear throughout this dissent, I am unsure when it would ever be

inequitable for a party to exercise a valid contractual right,

so I do not know how the circuit court is supposed to proceed

under the standard crafted by today's opinion.                       But be that as

it may, I can see nothing that could plausibly be characterized

as bad faith conduct on the part of Sideline.

       ¶78    In October 2008, Hall informed Beidel that he planned

to fire him the following March, after Sideline's stock could be

revalued from its overinflated price of $1,600 a share.                                 In

doing so, Hall acted not only in his best interests, but in the

best   interests         of    the   company    as   well.      Additionally,           by

providing       notice    to    Beidel   when   he   did,    Hall    gave       him   five

months to prepare for the inevitable.                    And during the period

leading      up   to    his    termination,     Beidel      continued      to    receive

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compensation from Sideline——to the tune of $269,000 in salary

and shareholder distributions in 2008.

     ¶79   The   only    options    Sideline   had,   besides     the   one   it

took, were: (1) act contrary to its own interests and terminate

Beidel when the stock was overvalued; or (2) keep mum about

Beidel's impending termination and instead spring the news on

him the day after Sideline's stock was revalued.                   The first

choice is irrational and the second would seemingly fail the

equitable test laid down by the majority, but if Sideline is not

able to rely on the language of the contract, those were its

only alternatives.        The court is remanding this case for the

circuit court to        determine   "whether   the    equities    lie   on the

plaintiff's or defendant's side," majority op., ¶1, but I think

today’s decision has already stacked the deck against Sideline.

    ¶80    For the foregoing reasons, I respectfully dissent.




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