                                                                       2015 WI 49

                  SUPREME COURT                OF   WISCONSIN
CASE NO.:                 2013AP679
COMPLETE TITLE:           MS Real Estate Holdings, LLC,
                                     Plaintiff-Appellant,
                               v.
                          Donald P. Fox Family Trust, Jean A. Fox
                          Revocable Living
                          Trust, Jean A. Fox, Michael J. Fox, Thomas P.
                          Fox, Karen
                          L. Brazee, Carol L. Brewer, Ellen J. Fox and Amy
                          J. Alaniz,
                                     Defendants-Respondents-Petitioners.

                            REVIEW OF A DECISION OF THE COURT OF APPEALS
                           (Reported at 356 Wis. 2d 307, 853 N.W.2d 627)
                                     (Ct. App. 2014 – Published)
                                        PDC No: 2014 WI App 84

OPINION FILED:            May 15, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:            March 3, 2015

SOURCE OF APPEAL:
   COURT:                 Circuit
   COUNTY:                Outagamie
   JUDGE:                 Michael W. Gage

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
        For       the   defendants-respondents-petitioners,           there   were
briefs by Charles D. Koehler, Michael C. Menghini, and Herrling
Clark    Law      Firm,    Ltd.,   Appleton.   Oral   argument   by   Charles   D.
Koehler.




        For the plaintiff-appellant, there was a brief by Jordan J.
Hemaidan, Michael P. Screnock, and Michael Best & Friedrich LLP,
Madison. Oral argument by Jordan Hemaidan.
     There was an amicus curiae brief by Cori Moore Lamont and
Wisconsin   Realtors   Association,   Madison,   on   behalf   of   the
Wisconsin Realtors Association.




                                  2
                                                                         2015 WI 49
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.   2013AP679
(L.C. No.   2012CV214)

STATE OF WISCONSIN                             :            IN SUPREME COURT

MS Real Estate Holdings, LLC,

            Plaintiff-Appellant,

      v.

Donald P. Fox Family Trust, Jean A. Fox                               FILED
Revocable Living

Trust, Jean A. Fox, Michael J. Fox, Thomas P.                    MAY 15, 2015
Fox, Karen
                                                                    Diane M. Fremgen
                                                                 Clerk of Supreme Court
L. Brazee, Carol L. Brewer, Ellen J. Fox and
Amy J. Alaniz,

            Defendants-Respondents-Petitioners.




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


      ¶1    MICHAEL      J.   GABLEMAN,   J.       We    review      a    published
decision of the court of appeals1 reversing the Outagamie County




      1
       MS Real Estate Holdings, LLC v. Donald P. Fox                           Family
Trust, 2014 WI App 84, 356 Wis. 2d 307, 853 N.W.2d 627.
                                                                         No. 2013AP679



circuit       court's    order2 granting          summary     judgment       in   favor   of
Donald P. Fox Family Trust, Jean A. Fox Revocable Living Trust,
Jean A. Fox, Michael J. Fox, Thomas P. Fox, Karen L. Brazee,
Carol L. Brewer, Ellen J. Fox, and Amy J. Alniz ("the Foxes").
The Foxes moved for summary judgment, arguing that the right of
first       refusal    contract     between       the   Foxes   and     MS   Real    Estate
Holdings, LLC ("MS Real Estate")3 was (1) indefinite and (2)
terminable at will.             The circuit court concluded that the right
of    first     refusal        contract     was     indefinite        and     subject      to
termination at will, by either party, after a reasonable period
of time.        This was so, the circuit court reasoned, because the
right of first refusal contract identified neither a specific

duration for the contract, nor an event terminating the contract
that was certain to occur.
        ¶2     The    court    of   appeals       reversed,     concluding        that    the
right of first refusal contract is not indefinite.                                  MS Real
Estate Holdings, LLC v. Donald P. Fox Family Trust, 2014 WI App
84, ¶23, 356 Wis. 2d 307, 853 N.W.2d 627.                       The court of appeals
concluded       that    the    right   of     first      refusal      contract      is    not
indefinite because in the event MS Real Estate fails to exercise
the   right     of     first    refusal     to     purchase,     such    failure      would
necessarily constitute a waiver of the right to lease.                                    Id.
Therefore, the court of appeals concluded the entire right of


        2
            The Honorable Michael W. Gage, presiding.
        3
            Formerly known as Tidy View Dairy, Inc.



                                              2
                                                                                    No. 2013AP679



first refusal contract (that is, both the purchase and lease
provisions) expires only when MS Real Estate either exercises,
or declines to exercise, its right to purchase.                                Id., ¶¶29-31.
        ¶3    The     sole    issue       presented           for      our    consideration         is
whether a triggering event uncertain to occur renders a right of
first refusal contract indefinite, thereby allowing a party to
terminate      the    contract       at    will      after         a   reasonable       period      of
time.
        ¶4    We     hold    that    a    right      of       first     refusal       contract      is
definite as to duration when it specifies an event that triggers
the right and requires the right holder to either exercise or
waive the right within a specified period of time thereafter,

even     if    the     triggering          event         is     not      certain       to     occur.
Therefore, the right of first refusal contract at issue here is
not    terminable       at    will       after       a    reasonable          period     of     time.
Rather, by the terms of the contract, the right of first refusal
continues until there is a sale of the property, either to MS
Real Estate or to a third party in the event that MS Real Estate
declines to exercise its right of first refusal to purchase,
thereby waiving its right.                   Accordingly, the decision of the
court of appeals is affirmed.
              I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY
        ¶5    MS     Real    Estate       operates        a    dairy         farm   that    adjoins
approximately 450 acres of farmland in the Town of Freedom in

Outagamie      County,       Wisconsin,          owned        by       the    Foxes     ("the     Fox
Land").       On January 16, 1998, MS Real Estate, as Tidy View
Dairy, Inc., contracted with Donald P. Fox and Jean A. Fox for a
                                                 3
                                                                    No. 2013AP679



right of first refusal to purchase or lease the Fox Land.                           MS
Real Estate paid Donald and Jean Fox $4,0004 for the right of
first refusal to purchase the Fox Land and the right of first
refusal to lease the Fox Land.
     ¶6      The purchase provision of the right of first refusal
contract states:

     Section 1: Right of First Refusal to Purchase

     Fox grants and conveys to Tidy-View a first right to
     purchase the Property, or any part thereof, for the
     same price and on the same terms which Fox is willing
     to transfer such Property to another party. Prior to
     such transfer, Fox shall deliver to Tidy-View a
     written copy of the Offer, which Fox is willing to
     accept.   Tidy-View shall then have 15 (fifteen) days
     in which to accept or reject the Offer according to
     its price, terms and conditions.      If the Offer is
     accepted, the transfer shall be closed in accordance
     with the Offer with Tidy-View as purchaser.      If the
     Offer is rejected, Fox may complete the sale in strict
     compliance with the Offer. If the sale is not closed,
     this first right of refusal shall again take effect.
     ¶7      Under    the     Right    of    First        Refusal    to     Purchase
provision,    should    the    Foxes    receive      an    acceptable      offer    to
purchase,    they    must   submit     the   offer    to    MS   Real     Estate—the
successor to Tidy-View, see supra n.3.                    MS Real Estate would
then have 15 days to accept or reject the offer.                        If MS Real
Estate rejects the offer, the Foxes may complete the sale with
the third-party that made the initial offer, but only on the


     4
       There is some dispute in the record as to whether MS Real
Estate paid $4,000 or $4,500 for the right of first refusal. In
either event, the consideration paid by MS Real Estate is not a
factor in our analysis.



                                        4
                                                                              No. 2013AP679



terms of the initial offer accepted by the Foxes.                               The contract
also    provides           that    the    right       of   first    refusal     to    purchase
reattaches if the third-party sale does not close.
        ¶8     The Right to Lease provision states:

        Section 2: Right to Lease

        2.1 Leasing Rights.   Fox grants and conveys to Tidy-
        View a first right to lease the Property, or any part
        thereof, for the same price and on the same terms
        which Fox is wiling to Lease such Property to another
        party.   Prior to execution of any Lease, Fox shall
        deliver to Tidy-View a written copy of the Lease,
        which Fox is willing to accept. Tidy-View shall then
        have 15 (fifteen) days in which to accept or reject
        the   Lease  according   to   its   price,   terms  and
        conditions. If the Lease is accepted, Tidy-View shall
        be obligated to make all payments in accordance with
        the Lease with Tidy-View as Lessee.     If the Lease is
        rejected, Fox may execute the Lease as Lessor with the
        other party as Lessee. If the Lease is not executed,
        the first right to lease shall again take effect.
        ¶9     The Right to Lease provision provides that MS Real
Estate has a first right to lease the Fox Land which operates in
a   manner     similar        to    the    Right      of   First     Refusal    to    Purchase
provision.           If     the    Foxes     receive       a   lease    offer       they   would

accept, they must forward the offer to MS Real Estate.                                 MS Real
Estate must either accept or reject the lease offer within 15
days.         If    MS     Real    Estate    rejects       the     lease,     the    Foxes    may
execute the lease with the third-party.                             If the Foxes do not
execute the lease, then MS Real Estate's first right to lease
reattaches.
        ¶10    The lease provision also includes a Continuing Rights
provision          under    Section       2.2,    which     states     that    the    right   to


                                                  5
                                                                         No. 2013AP679



lease "shall continue for any subsequent renewal of a Lease with
another party or upon entering into a new Lease with any other
party.         It   is   specifically   intended        that    this    leasing      right
shall not extinguish unless waived by [MS Real Estate]."
        ¶11    The right of first refusal contract also contains a
Binding       Effect     provision   under     Section     4,    which     states      that
"[t]his Agreement shall be binding upon the respective parties,
their    heirs,      personal     representatives,        successors       in   interest
and assigns."
        ¶12    The Foxes leased the Fox Land to MS Real Estate in
2001.         On October 4, 2006, Donald Fox sent MS Real Estate a
commercial offer to purchase 37.4 acres of the Fox Land, putting

MS Real Estate on notice that it had 15 days to accept or reject
the offer.          MS Real Estate declined to exercise its right to
purchase the 37.4 acres.             MS Real Estate notified the Foxes by
letter and attached an agreement entitled "Release of Parcel
From    Right       of   First   Refusal."        The   letter        stated    that    the
attached       agreement     constituted       waiver    of     the    right    of   first
refusal as to the 37.4 acres in question and reasserted MS Real
Estate's right to the remainder of the Fox Land.                          However, the
sale did not close, and, under the terms of the right of first
refusal        contract,    the    right     of   first       refusal     to    purchase
reattached.
        ¶13    On January 11, 2007, the parties executed a five-year

land use agreement, which expired on January 11, 2012.                                  The
agreement contained a handwritten provision that stated MS Real
Estate had the right of first refusal to purchase the land and
                                           6
                                                                         No. 2013AP679



that if the Foxes sold any portion of the Fox Land, the rent
would be adjusted accordingly.
        ¶14   On July 29, 2011, the Foxes sent a notice to MS Real
Estate which noted that their lease agreement would expire in
January.        In that notice, the Foxes invited MS Real Estate to
submit a bid to lease the property beginning in 2012.                          The Foxes
sent a second notice on October 26, 2011, which again requested
that MS Real Estate present a bid on a 2012 lease of the Fox
land.     The notice also acknowledged MS Real Estate's right to
first lease and that the Foxes would follow the procedure for
allowing      MS       Real    Estate   to   exercise      its   right     should     they
receive other bids to lease the property.

        ¶15   MS       Real    Estate   responded    on     November      8,   2011,     by
proposing two leases for the Foxes to choose between: a one-year
lease     and      a    three-year      lease.       The    lease       proposals     also
referenced      MS      Real    Estate's     right   of    first    refusal     and    its
intent to abide by the contract's provisions.
        ¶16   On December 1, 2011, the Foxes notified MS Real Estate
that it was soliciting alternate lease proposals.                          On December
5, 2011, the Foxes sent MS Real Estate a proposal from Tinedale
Cropping to lease the property from January 1, 2012, to December
31, 2016, at an initial price of $200 per acre ("the Tinedale
Proposal").             MS    Real   Estate,     believing       that    the    Tinedale
Proposal was acceptable to the Foxes, attempted to exercise its

right of first lease on December 16, 2011, by notifying the
Foxes that it accepted the terms of the Tinedale Proposal.                               MS
Real Estate included a signed lease agreement for the Fox Land
                                             7
                                                                         No. 2013AP679



under the terms of the Tinedale Proposal.                        The Foxes refused to
execute the lease.
        ¶17   On    February    8,   2012,       the    Foxes     delivered     a    second
lease to MS Real Estate pursuant to the right of first refusal
contract which Kavanaugh Farms and the Foxes had executed on
February 6, 2012 ("the Kavanaugh Lease").                        The Kavanaugh Lease
ran from 2012 through 2016 and provided for a rent of $225 per
acre in the first year, with a two percent annual increase in
the cost per acre.             The Foxes did not provide MS Real Estate
with a copy of the Kavanaugh Lease prior to its execution, but
communicated to MS Real Estate that it retained the right of
first lease and could accept the terms of the Kavanaugh Lease.

        ¶18   On February 12, 2012, MS Real Estate filed suit in
Outagamie County circuit court seeking declaratory judgment that
the Tinedale Proposal constituted an offer to lease which had
been accepted by MS Real Estate under the right of first refusal
contract,     and     seeking    damages         for    breach    of    contract.        In
response, the Foxes sent a letter to MS Real Estate on March 6,
2012,     purportedly     terminating            the    right     of    first       refusal
contract.      The Foxes' letter indicated that the right of first
refusal contract failed to specify the duration of the contract
and     did   not    expressly       state       that    it   was      intended     to   be
perpetual.         Thus, according to the Foxes, either party could
terminate the contract after a reasonable time.

        ¶19   On April 5, 2012, the parties resolved their dispute
regarding whether it was the Tinedale Proposal or the Kavanaugh
Lease which constituted an acceptable offer subject to MS Real
                                             8
                                                                       No. 2013AP679



Estate's right to first lease.                  They did so by entering into a
lease under the terms of the Kavanaugh Lease.                         The Foxes moved
for summary judgment on their remaining counterclaim, arguing
that   the   March     6     revocation    of     the    right   of    first   refusal
contract     was     valid    because     the    contract     was     indefinite      and
lacked   the    express      language     needed    to    indicate      an   intent    it
should endure in perpetuity.              The circuit court granted summary
judgment in favor of the Foxes, concluding that the right of
first refusal contract was indefinite as to duration and that
the revocation by the Foxes was reasonable.
       ¶20     The   court     of   appeals      reversed,    concluding       that    "a
right of first refusal to purchase . . . is not amenable to the

general rule of indefiniteness applied by the circuit court."
MS Real Estate Holdings, 356 Wis. 2d 307, ¶13.                          The court of
appeals also determined MS Real Estate's failure to exercise the
right of first refusal to purchase would constitute a waiver of
the right of first lease under the contract.                           Id., ¶¶30-31.
Thus, the court concluded that the duration of the right of
first refusal contract is not indefinite because the contract
terminates, in its entirety, upon the sale of the Fox Land.
Id., ¶32.
       ¶21   The Foxes petitioned this court for review, which we
granted on November 13, 2014.
                             II.    STANDARD OF REVIEW
       ¶22   This case requires us to review a grant of summary
judgment.       "'We       review   the    grant    of    a   motion     for   summary
judgment de novo, and apply the methodology specified in Wis.
                                           9
                                                                                  No. 2013AP679



Stat. § 802.08.               That is, we determine whether there is any
genuine issue as to any material fact, and if not, which party
is entitled to judgment as a matter of law.'"                               E-Z Roll Off, LLC
v.    Cnty.     of        Oneida,    2011     WI     71,    ¶15,      335    Wis. 2d 720,         800
N.W.2d 421 (citation omitted).
       ¶23      In    doing       so,   we    must      interpret      the    right     of    first
refusal       contract        between        the    Foxes       and    MS    Real    Estate       and
determine whether it is ambiguous as to its duration.                                   "Whether
a    contract        is    ambiguous       is . . . a       question         of   law   which      we
review de novo."             Mitchell Bank v. Schanke, 2004 WI 13, ¶46, 268
Wis. 2d 571, 676 N.W.2d 849 (quoting Schmitz v. Grudzinski, 141
Wis. 2d 867, 871, 416 N.W.2d 639 (Ct. App. 1987)).

                                        III. DISCUSSION
                           A. Rights of First Refusal Defined
       ¶24      A right of first refusal is a contractual right to be
first in line should the opportunity to purchase or lease a
property arise.               "The right of first refusal 'remains in an
unripened       or        suspended     state,          awaiting      the    energizing       spark
provided when the condition precedent of intent and offer is
met.'"        Wilber Lime Prods., Inc. v. Ahrndt, 2003 WI App 259,
¶10, 268 Wis. 2d 650, 673 N.W.2d 339 (quoting Chapman v. Mut.
Life     Ins.        Co,    800     P.2d     1147,       1152    (Wyo.       1990)).         It    is
"essentially a conditional option dependent upon the decision or
the    desire        of     the   landlord         to    sell    [or    lease]."        Last      v.
Puehler, 19 Wis. 2d 291, 297, 120 N.W.2d 120 (1963).                                     Like an
option contract, a right of first refusal must be supported by


                                                   10
                                                                         No. 2013AP679



consideration.           3 E.M. Holmes, Corbin on Contracts § 11.3 (rev.
ed. 1996) (hereinafter Corbin).
      ¶25     However, a right of first refusal is not an option
contract.        A right of first refusal is

      a right to buy before or ahead of others, thus, a pre-
      emptive right contract is an agreement containing all
      the essential elements of a contract, the provisions
      of which give to the prospective purchaser the right
      to buy upon specified terms, but, and this is the
      important point, only if the seller decides to sell.
      It does not give the pre-emptioner the power to compel
      an   unwilling  owner   to  sell,   and  therefore  is
      distinguishable from an ordinary option.
Edlin v. Soderstrom, 83 Wis. 2d 58, 68, 264 N.W.2d 275 (1978)
(citing      J.A.    Bryant,      Jr,    Annotation,           Pre-emptive     Rights     to
Realty      as    Violation       of    Rule        Against    Perpetuities      or     Rule
Concerning       Restraints       on    Alienation,       40    A.L.R.   3d,     920,    924
(1971)).         "The holder of an option can compel a sale by an
unwilling owner.           The holder of a right of first refusal on a
piece of land only has the right to receive an offer to buy the
land."      Corbin, supra, § 11.3.
      ¶26     Further, a right of first refusal to purchase or lease
land may be a servitude.5                A servitude is "a legal device that
creates a right or obligation that runs either with land or with
an   interest       in   land."        Nature       Conservancy    of    Wis.,    Inc.    v.
Altnau, 2008 WI App 115, ¶7, 313 Wis. 2d 382, 756 N.W.2d 641

      5
       While it is unnecessary for the outcome of this case to
determine whether the right of first refusal contract between
the Foxes and MS Real Estate is a servitude, we nonetheless find
the rules governing servitudes useful to our analysis.



                                               11
                                                                  No. 2013AP679



(citing       Restatement    (Third)     of    Prop.:    Servitudes       § 1.1(1)
(2000)).       Servitudes are subject to the rules against restraints
on alienation.         Restatement (Third) of Prop.: Servitudes § 3.3.
        ¶27    A restraint on alienation occurs when a property owner
contracts not to sell the property for a specified amount of
time.         Corbin, supra, § 11.3.          Generally,     a   right   of     first
refusal is not a restraint on alienation if the procedure for
exercising the right is reasonable.             Id.     To determine whether a
right of first refusal imposes a restraint on alienation, one
must look to the provisions governing the exercise of the right.
Restatement (Third) of Prop.: Servitudes § 3.4 cmt. f.

        Lack of clarity may cause substantial harm by making
        it   difficult  to   obtain   financing  and   exposing
        potential buyers to threats of litigation.      Lengthy
        periods for exercise of rights of first refusal will
        also   substantially   affect   alienability   of   the
        property.   Potential buyers will be deterred by the
        possibility that they may not know for a lengthy
        period of time whether they will obtain the property
        or be obligated to pay the price. The risks of change
        in their needs and in financial markets will be
        greater than most buyers will be willing to accept.
Id.      However, where the right of first refusal provides for
purchase on the same terms and conditions as the owner receives
from a third party, the procedure for exercising the right is
clear, and the time for exercising the right when it arises is
reasonably       short,   its     practical   effect    on   alienation       is   de
minimis.         Id.      Thus,    to   determine      whether    the    time      for
exercising the right of first refusal is reasonable, one must
look to when the right is triggered.                A right of first refusal
is triggered when "the energizing spark" of "intent and offer is

                                        12
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met,"    not       when    the    contract   is   first       created.     Wilber     Lime
Prods., 268 Wis. 2d 650, ¶10 (citation and quotation omitted).
        ¶28    When a right of first refusal provides for purchase on
the same terms and conditions as an acceptable offer, provides a
clear     procedure         for    exercising     the     right,    and    provides       a
reasonable time for exercising the right, it does not operate to
prohibit or restrain the sale of property.                      Rather, the right of
first    refusal          contract    bestows     on    the    holder    the    right    to
preempt a third party’s purchase when that third party has made
an offer the owner will accept.                   Corbin, supra, § 11.3.              Where
the procedure is clear and the time to exercise the right is
reasonable, a right of first refusal "provides a possible buyer

who is constantly available."                   Bruns v. Rennebohm Drug Stores,
Inc., 151 Wis. 2d 88, 99, 442 N.W.2d 591 (Ct. App. 1989).
        ¶29    If the property owner receives an acceptable offer,
the owner "has the power to create a privilege to sell by merely
offering to sell to [the holder of the right of first refusal]."
Corbin, supra, § 11.3.               If the holder accepts, he purchases the
property.          If the holder declines, the owner may accept the
buyer’s        offer.            Accordingly,      "a     transaction       exclusively
contractual in character, such as a right of first refusal,"
cannot realistically be said to encumber specific property.                              10
Powell        on   Real     Property    § 72.07        (Michael    Allan       Wolf   ed.,
LexisNexis Matthew Bender).                  This discussion makes clear that,
under a right of first refusal contract, landowners such as the
Foxes remain free to do with their property as they wish.                               The
holder of a right of first refusal cannot force landowners to
                                             13
                                                                               No. 2013AP679



sell or lease their property unless they freely choose to do so.
Even then, landowners may condition such sale or lease on terms
that are acceptable to them.                In other words, landowners such as
the Foxes remain in total control of their property and cannot
be forced to act against their will under a right of first
refusal contract.
 B. Right of First Refusal Contracts That Use a Triggering Event
  That is Uncertain to Occur Are Not Indefinite as to Duration.
       ¶30    By    their       nature,    right       of       first      refusal   contracts
often contemplate a level of uncertainty because such contracts
rely   on    triggering         events——usually             a    landowner’s       decision    to
sell——which may or may not occur.                       See Wilber Lime Prods., 268
Wis. 2d 650, ¶10.           The use of an event to determine the duration
of a right of first refusal contract renders the duration of the
contract sufficiently definite under Wisconsin law.                                  Schneider
v. Schneider, 132 Wis. 2d 171, 176, 389 N.W.2d 835 (Ct. App.
1986).       The Foxes do not argue that the procedures for MS Real
Estate to exercise its rights are unreasonable, but rather that
the duration of the entire contract is indefinite.                                   Thus, the
question here is whether the uncertainty of when—or even if—the
triggering         event        will     occur        offends          Wisconsin’s      policy
disfavoring perpetual contracts.                     It does not.
       ¶31    We   begin     our       analysis,       as       we   must,   by    noting   that
Wisconsin      courts      do    not     favor       perpetual        contracts.       We     are
"reluctant to interpret a contract as providing for a perpetual
contractual        right     unless       the        intention        of     the   contracting
parties to provide for the same is clearly stated."                                    Capital
                                                14
                                                                           No. 2013AP679



Invs., Inc. v. Whitehall Packing Co., 91 Wis. 2d 178, 193, 280
N.W.2d 254 (1979).          When the time that a contract is to endure
is indefinite, this court will imply a reasonable time for the
duration of the contract.                  Farley v. Salow, 67 Wis. 2d 393, 402,
227 N.W.2d 76 (1975).              However, we do not require parties to
express     duration       in     temporal             terms    in     order       to   avoid
indefiniteness.         Rather, parties are free to identify triggering
events that give rise to termination of the contract in one form
or another.         Schneider, 132 Wis. 2d at 176.
      ¶32      The Foxes argue that the uncertainty of a triggering
event,    in    this    case     the       sale   of    the    Fox   Land,     renders     the
duration for which the right of first refusal contract is to

endure    indefinite,      and     therefore           violates      Wisconsin’s        policy
disfavoring         perpetual    contracts.             The    Foxes   assert      that    (a)
because the duration of the contract is indefinite, and (b) it
contains no express language stating that it is intended to be
perpetual, we should imply a reasonable time for performance,
after which, the contract is terminable at will by either party.
Accordingly, in the Foxes view, the court of appeals exceeded
its authority by concluding the contract terminated upon sale.
      ¶33      We   disagree.          A    specified      triggering      event,       though
uncertain to occur, may render a right of first refusal contract
sufficiently definite and establish the duration of the right.
Id.   In Schneider, the court of appeals considered whether an
agreement      between     two    brothers         that       restricted     the    sale   of
property held by them as tenants in common was indefinite as to
duration because it contained no express amount of time it was
                                              15
                                                                                   No. 2013AP679



to     endure,      thereby         violating          the    restriction           on    partition
agreements         that        exceed        thirty          years        under      Wis.        Stat.
§ 842.02(1).           Id.      at     175.           The     court     concluded         that     the
agreement was not indefinite because either of two events——the
death of one of the brothers or operation of a right of first
refusal provision in the agreement——would allow the land to be
partitioned.         Id. at 176.
       ¶34    The Foxes argue that, in Schneider, it is the first
event the court listed, death, that made the duration of the
contract definite because death is an event certain to occur.
The Foxes' reading of Schneider does not persuade us.                                     The court
in    Schneider      provided         two    independent            reasons       for    concluding

that the duration of the contract was sufficiently definite.
Schneider, 132 Wis. 2d at 176.                        The first, death, was certain to
occur,    though      impossible           to     predict.          Id.       The       second,    the
exercise      of    the     right     of     first      refusal,       though       uncertain       to
occur,    depended        on    one     of      the    brothers       seeking       to    sell     his
interest in the land.                Id.     The brothers had signed an agreement
that required the sibling who wished to sell his interest in the
land    to    offer    it      to    his     brother         first.        Id.       Through       the
operation      of     the      right       of     first       refusal      agreement,        either
brother could sell his interest in the property at any time.
Id.      Thus,       either     death        or    the       sale     of   the      property       was
sufficient to establish the definiteness of the contract.
       ¶35    The court’s conclusion in Schneider is consistent with
the    form    and    function         of       rights       of   first     refusal.         As    we
explained above, a right of first refusal contract operates in a
                                                  16
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manner similar to a conditional option contract, though it is
not an option contract.                    See Last, 19 Wis. 2d at 297; Nature
Conservancy of Wis., 313 Wis. 2d 382, ¶7; Corbin, supra, § 11.3.
Under a right of first refusal contract, the right to purchase
property lies dormant until it is awakened by the occurrence of
a    specified       triggering            event.            Wilber    Lime         Prods.,    268
Wis. 2d 650, ¶10.              Unless otherwise specified by the parties, a
right of first refusal expires when the triggering event occurs
and the holder chooses to either exercise or waive the right.
See Cipriano v. Glen Cove Lodge #1458, B.P.O.E., 801 N.E.2d 388,
392 (N.Y. 2003) ("The holder of a right of first refusal must be
given the opportunity to exercise the preemptive right, but the

right is extinguished when the contract with the third party
expires or is abandoned."); Corbin, supra, § 11.3.                                  Accordingly,
so    long   as     the   right      of     first      refusal       clearly    identifies        a
triggering event, whether certain or uncertain to occur, it is
definite as to duration.
       ¶36    Because we hold that a right of first refusal contract
is    definite      as    to    duration      when       it    specifies       an    event     that
triggers      the    right,         even    when       the    triggering       event     is     not
certain      to    occur,      we    must    now       interpret      the    right     of     first
refusal      contract       between         the    Foxes       and    MS     Real     Estate     to
determine the triggering event.
    C. The Right of First Refusal Contract Terminates Upon Sale of
                                       the Fox Land.
       ¶37    To     determine        whether          the    right     of     first     refusal
contract between the Foxes and MS Real Estate is indefinite, we
                                                  17
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must interpret the document.                 Our goal in interpreting contracts
is to determine and carry out the parties' intentions.                                   See
Wilson Mut. Ins. Co. v. Falk, 2014 WI 136, ¶23, 360 Wis. 2d 67,
857 N.W.2d 156.           "Contract language is construed according to
its    plain    or     ordinary       meaning, . . . consistent          with      'what    a
reasonable person would understand the words to mean under the
circumstances.'"             Tufail v. Midwest Hospitality, LLC, 2013 WI
62,    ¶28,    348     Wis. 2d 631,        833    N.W.2d 586       (internal    citations
omitted).       If the terms of a contract are plain and unambiguous,
we construe it as it stands.                 Gottsacker v. Monnier, 2005 WI 69,
¶22,    281         Wis. 2d 361,       697       N.W.2d 436.          "However,      where
contractual language is reasonably susceptible to more than one

meaning, that language is ambiguous."                         Nature Conservancy of
Wis., 313 Wis. 2d 382, ¶6.
       ¶38     "The general rule as to construction of contracts is
that the meaning of particular provisions in the contract is to
be    ascertained       with    reference        to    the   contract    as    a   whole."
Tempelis       v.    Aetna     Cas.    &   Sur.       Co.,   169   Wis. 2d 1,       9,   485
N.W.2d 217      (1992).         "When      interpreting       an    ambiguous      contract
provision, we must reject a construction that renders an unfair
or unreasonable result."                Gottsacker, 281 Wis. 2d 361, ¶24.                  We
"interpret contracts to give them 'common sense' and 'realistic'
meaning."       Betz v. Diamond Jim's Auto Sales, 2014 WI 66, ¶68,
355 Wis. 2d 301, 849 N.W.2d 292 (Abrahamson, C.J., dissenting).
"[A]mbiguities are resolved against the drafter."                              Marlowe v.
IDS Prop. Cas. Ins. Co., 2013 WI 29, ¶48, 346 Wis. 2d 450, 828
N.W.2d 812.
                                             18
                                                                   No. 2013AP679



     ¶39    Read   in   isolation,   the       two    right   of   first   refusal
provisions in the contract between the Foxes and MS Real Estate
are not ambiguous.       Section one of the contract, which contains
the Right of First Refusal to Purchase provision, states:

     Fox grants and conveys to Tidy-View a first right to
     purchase the Property, or any part thereof, for the
     same price and on the same terms which Fox is willing
     to transfer such Property to another party. Prior to
     transfer, Fox shall deliver to Tidy-View a written
     copy of the Offer, which Fox is willing to accept.
     Tidy-View shall then have 15 (fifteen) days in which
     to accept or reject the Offer according to its price,
     terms and conditions.   If the Offer is accepted, the
     transfer shall be closed in accordance with the Offer
     with Tidy-View as purchaser.        If the Offer is
     rejected, Fox may complete the sale in strict
     compliance with the Offer. If the sale is not closed,
     this first right of refusal shall again take effect.

(Emphasis added).
     ¶40    By its terms, this provision terminates upon the sale
of the Fox Land.        There is no other reasonable interpretation.
If the Fox Land is sold to MS Real Estate, then there is no
longer a need for the provision.           If the Fox Land is sold to a
third-party, the right of first refusal to purchase does not
reattach.    MS Real Estate would waive its right of first refusal
to purchase if and when the Fox Land is sold to a third-party,
thus extinguishing the right.
     ¶41    Similarly,    the   Right     of     First    Lease    provision       is
unambiguous when read in isolation.                  The section contains two
provisions, which read:

     2.1 Leasing Rights.  Fox grants and conveys to Tidy-
     View a first right to lease the Property or any part
     thereof, for the same price and on the same terms

                                     19
                                                          No. 2013AP679


      which Fox is willing to Lease such Property to another
      party.   Prior to execution of any Lease, Fox shall
      deliver to Tidy-View a written copy of the Lease,
      which Fox is willing to accept. Tidy-View shall then
      have 15 (fifteen) days in which to accept or reject
      the   Lease  according   to   its   price,   terms  and
      conditions. If the Lease is accepted, Tidy-View shall
      be obligated to make all payments in accordance with
      the Lease with Tidy-View as Lessee.     If the Lease is
      rejected, Fox may execute the Lease as Lessor with the
      other party as Lessee. If the Lease is not executed,
      the first right to lease shall again take effect.

      2.2 Continuing Rights.    This section 2 right shall
      continue for any subsequent renewal of a Lease with
      another party or upon the entering into of a new Lease
      with any other party.     It is specifically intended
      that this leasing right shall not extinguish unless
      waived by Tidy-View.
      ¶42    Standing alone, the plain language of the right of
first lease is amenable to only one reasonable interpretation:
if the Foxes desire to lease their land, MS Real Estate must be
given the first opportunity.           Further, this right is expressly
intended to continue beyond the provisions of any single lease
term and terminates only upon waiver by MS Real Estate.
      ¶43    The fact that the right of first refusal provisions of
the contract are unambiguous when read in isolation does not end
the inquiry.     Contractual provisions must be interpreted within
the   context    of   the   contract    as   a   whole.   Tempelis,   169
Wis. 2d at 9.     As we have noted within the context of insurance
policies, provisions that are unambiguous standing alone may be
ambiguous in the context of the whole contract.            See Md. Arms
Ltd. P'ship v. Connell, 2010 WI 64, ¶39, 326 Wis. 2d 300, 786
N.W.2d 15.      Here, the fourth section of the contract, titled



                                       20
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Binding       Effect,      creates      ambiguity          as   to     the   duration    of    the
contract.
        ¶44      The Binding Effect provision states that the agreement
"shall      be      binding   upon      the    respective            parties,    their    heirs,
personal representatives, successors in interest and assigns."
This    section       creates      at   least        two    reasonable        interpretations
regarding the duration of the contract.                              The first is that the
contract is intended to be perpetual.                           The second is that a sale
under       the      Right    of     First      Refusal          to     Purchase       provision
constitutes waiver under the Right of First Lease provision,
thus terminating the contract.
        ¶45      We are reluctant to find a perpetual contractual right

unless the contract language evidences that the parties clearly
intended the contract to be perpetual.                           Capital Investments, 91
Wis. 2d at          193.      However,        the    intent       to    create     a   perpetual
contract does not require the parties to use magic words.                                        If
the contract language indicates that they intend the contract to
be continual, a court may find a perpetual contract.                                   Here, the
Binding       Effect       provision     can    be       read     to    create     a   perpetual
contract.         The use of the term "successors in interest" suggests
that the parties intended the contract to be perpetual.                                  This is
so because if the right of first refusal contract is binding on
all    of     the    Foxes'    successors           in   interest,       then     it   would     be
binding on any third-party who purchased the Fox Land.                                   Such an
interpretation would give MS Real Estate a permanent right of




                                                21
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first refusal to lease regardless of who owns the Fox Land.6
Thus, MS Real Estate would have a right of first lease to the
Fox    Land    that   is    enforceable       against   future    owners        of   the
property,       assuming     it   did   not     exercise   its   right     of    first
refusal to purchase under section one and did not separately
waive its right of first lease under section two.
       ¶46     This is not the only reasonable interpretation of the
contract, however.           The contract can also be read to terminate
upon the sale of the Fox Land to a third-party.                          Under this
reading, the extent of the Binding Effect provision is limited
by the terms of the right of first refusal provisions.                           As we
have explained, under the Right of First Refusal to Purchase

provision, MS Real Estate's right to purchase terminates upon
sale of the Fox Land, whether the sale is to MS Real Estate or a
third-party.       In addition, according to Section 2.2 of the Right
of First Lease provision, MS Real Estate's lease rights "shall
not extinguish unless waived."                  The contract does not define
what       constitutes     waiver,   and   because      waiver   is     not   defined
within the contract, we give the term is its plain or ordinary
meaning.       Tufail, 348 Wis. 2d 631, ¶28.
       ¶47     Waiver is defined as "the voluntary relinquishment or
abandonment——express or implied——of a legal right or advantage."


       6
       This interpretation would not create a perpetual right of
first refusal to purchase, however.       This is because that
provision in the contract clearly states that the "first right
of refusal shall again take effect" only in the event a sale to
a third-party does not close.



                                           22
                                                                   No. 2013AP679



Black’s Law Dictionary 1717 (9th ed. 2009).                 Thus, the terms of
the contract provide that the right of first lease is waived
when MS Real Estate abandons a legal right or advantage under
the contract.         In this case, that can mean only abandonment of
the right to purchase.          As the court of appeals correctly noted,
if waiver applied solely to the right to lease, then the Right
of First Lease provision would be internally inconsistent.                         MS
Real Estate Holdings, 356 Wis. 2d 307, ¶30.                 This is so because
Section      2.2   explicitly    states    that   the   right   of    first   lease
continues for any subsequent lease, whether entered into by MS
Real Estate or a third-party.             For such a situation to occur, MS
Real Estate would have declined, or "voluntarily relinquished,"

its first right to lease under Section 2.1.                  Thus, waiver must
mean the relinquishment of a different right under the contract,
and the only other right granted to MS Real Estate is the first
right       to   purchase.      Accordingly,      Section   2.2,     read   in   the
context of the contract as a whole, indicates that waiver occurs
when MS Real Estate refuses to exercise its right to purchase
the Fox Land and allows a third-party to purchase the property.7

        7
       Another reason that "waiver" in Section 2.2 cannot refer
to the first right to lease is that it would be redundant. It
is well-settled that "[a] construction which gives reasonable
meaning to every provision of a contract is preferable to one
leaving part of the language useless or meaningless."    Maas by
Grant v. Ziegler, 172 Wis. 2d 70, 79, 492 N.W.2d 621 (1992).
The first sentence of Section 2.2 states that the first right to
lease "shall continue for any subsequent renewal of a Lease with
another party or upon the entering into of a new Lease with any
other party."   The plain meaning of this provision is that the
first right to lease is recurring, unlike the first right to
purchase. In essence, MS Real Estate can waive its first right
                                                     (continued)
                                          23
                                                                    No. 2013AP679



     ¶48     We conclude that the second "waiver interpretation" is
the more reasonable and commonsense reading of the document as a
whole.      See Betz, 355 Wis. 2d 301, ¶68.                By concluding that
waiver under the Right of First Lease provision occurs when MS
Real Estate declines to exercise the right of first refusal to
purchase, the waiver interpretation gives full effect to each
provision of the contract.            Under this waiver interpretation,
the right of first refusal to purchase remains in effect until
the consummation of a sale of the Fox Land.                Further, the right
of first lease continues, arising each time a lease expires,
until it is waived by MS Real Estate's choice not to exercise
its right of first refusal to purchase.                    Finally, under the

waiver     interpretation,    the     Binding     Effect     provision       remains
enforceable, binding subsequent generations of the Fox family
that will inherit the Fox Land until the property is sold.
     ¶49     The   parties'   actions      also   indicate    that     the    waiver
interpretation is consistent with their intent.                When a contract
is ambiguous, the court may look beyond the four corners of the
document and consider extrinsic evidence that demonstrates the
parties'     intent.     Betz,      355    Wis. 2d 301,      ¶39.       Here,    the
parties' behavior under the contract provides additional support



to lease for every lease as long as the contract is in force.
There is no need for MS Real Estate to affirmatively waive this
right because it will not suffer any ill-effects for failure to
do so. Thus, if we were to read the waiver provision in Section
2.2 as applying only to the right of first lease, the waiver
provision would be superfluous.



                                          24
                                                                         No. 2013AP679



for this waiver interpretation.                   When the Foxes sent MS Real
Estate notice that it had received an offer to purchase 37.4
acres    of    the     Fox   Land    on   October     4,   2006,    MS      Real      Estate
notified the Foxes by letter that it did not wish to purchase
the land.        Enclosed with the letter was an agreement entitled
"Release of Parcel From Right of First Refusal."                       MS Real Estate
indicated that the enclosed agreement was a waiver of all its
rights    to     the    37.4   acres      under   the   right     of   first       refusal
contract.       The following January, when executing a new five year
lease, the parties indicated, by hand written addendum, that if
any part of the Fox Land was sold during the lease term, the
rent     would     be    adjusted      accordingly.         This       addendum         also

demonstrates that the parties intended a sale executed under the
Right    of    First     Refusal     to    Purchase     provision      to    constitute
waiver under the Right of First Lease provision.
        ¶50    The waiver interpretation also satisfies the rule that
we construe any ambiguities in the document against the drafting
party.           Marlowe,      346     Wis. 2d 450,        ¶48.          A       perpetual
interpretation of the contract would give MS Real Estate a right
of first lease that ran with the land.                       Under the perpetual
interpretation, MS Real Estate, the drafter of the document,
would benefit from a perpetual right of first lease.                                  If we
adopted such a reading, it would place MS Real Estate first in
line    anytime        the   land    would   be   leased,    giving         it    a    clear
advantage over any other interested third-party.                       Construing the
contract against MS Real Estate requires us to adopt the waiver
interpretation.
                                             25
                                                                     No. 2013AP679



      ¶51    Finally, the right of first refusal contract at issue
here is not a restraint on the Foxes' ability to alienate the
property.      A    restraint   on       alienation   occurs       when   a   property
owner contracts not to sell the property for a specified amount
of time.     Corbin, supra, § 11.3; see also Wis. Stat. § 700.16(2)
(2014-15) ("The power of alienation is suspended when there are
no persons in being who, alone or in combination with others,
can   convey   an    absolute      fee    in    possession    of    land,     or   full
ownership of personalty.").              As discussed above, where the right
of first refusal provides for purchase on the same terms and
conditions     as    the   owner     receives      from   a    third      party,    the
procedure for exercising the right is clear, and the time for

exercising the option when it arises is reasonably short, its
practical effect on alienation is de minimis.                       Corbin, supra,
§ 11.3.     If MS Real Estate desires to purchase the Fox Land, it
must be willing to meet the terms and conditions of an offer the
Foxes deem acceptable.          The procedure for exercising the first
right to purchase is clear under the contract.                         If the Foxes
receive an offer they will accept, they must deliver a written
copy of the offer to MS Real Estate.               MS Real Estate then has 15
days to determine whether to purchase the property on those same
terms.      We conclude that 15 days is reasonably short such that
potential buyers will not be deterred by the possibility that
they may not know for a lengthy period whether they will obtain
the property.
      ¶52    MS Real Estate's opportunity to exercise its right of
first refusal is completely dependent upon the actions of the
                                           26
                                                                                No. 2013AP679



Foxes.        The       Foxes    hold       all   the     cards       because   they       are    not
required to sell or lease their land, and they may use their
land however they wish.                     They could entertain a thousand offers
to sell or lease the Fox Land, and cast each one aside without
consequence under the contract.                        In the event an offer for sale
or lease is made that they are willing to accept, all that is
required is that they give MS Real Estate the opportunity to
accept       or    reject       the     terms       of      the    offer    that      they       find
acceptable.         MS Real Estate may not negotiate for more favorable
terms.        The       Foxes    alone       determine         what     offer   is    or    is    not
acceptable.         Thus, the right of first refusal contract is not a
restriction on alienation and continues to be enforceable.

                                        IV. CONCLUSION
       ¶53    We        hold    that    a    right     of      first    refusal      contract      is
definite as to duration when it specifies an event that triggers
the right and requires the right holder to either exercise or
waive the right within a specified period of time thereafter,
even     if       the     triggering          event       is      not    certain      to     occur.
Therefore, the right of first refusal contract at issue here is
not    terminable          at    will       after     a     reasonable      period     of     time.
Rather, by the terms of the contract, the right of first refusal
continues until there is a sale of the property, either to MS
Real Estate or to a third party in the event that MS Real Estate
declines to exercise its right of first refusal, thereby waiving

the right.         Accordingly, the decision of the court of appeals is
affirmed.


                                                  27
                                                            No. 2013AP679



     By   the   Court.-The   decision   of   the   court   of   appeals     is
affirmed.




                                   28
    No. 2013AP679




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