2021 WI 35

SUPREME COURT OF WISCONSIN

CASE NO.: 2018AP960

COMPLETE TITLE: Country Visions Cooperative,

 Plaintiff-Appellant-Cross-RespondentPetitioner,

 v.

Archer-Daniels-Midland Company and United 

Cooperative,

 Defendants-Respondents-CrossAppellants.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 392 Wis. 2d 672,946 N.W.2d 169

PDC No:2020 WI App 32 - Published

OPINION FILED: April 21, 2021 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: February 25, 2021 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Fond du Lac 

JUDGE: Gary R. Sharpe 

JUSTICES:

ZIEGLER, J., delivered the majority opinion for a unanimous 

Court. ROGGENSACK, C.J., filed a concurring opinion.

NOT PARTICIPATING:

 

ATTORNEYS:

For the plaintiff-appellant-cross-respondent-petitioner, 

there were briefs filed by David G. Peterson, J. Bushnell 

Nielsen, Bridget M. Hubing, Malinda J. Eskra, and Reinhart 

Boerner Van Deuren S.C., Waukesha. There was an oral argument by 

J. Bushnell Nielsen.

For the defendants-respondents-cross-appellants, there was 

a brief filed by Ryan J. Walsh, Amy C. Miller, and Eimer Stahl 

LLP, Madison; with whom on the brief was John C. O’Quinn, Megan 

M. Wold and Kirkland & Ellis LLP, Washington, D.C.; with whom on 
2

the brief was Michael B. Slade, Yates M. French, and Kirkland & 

Ellis LLP, Chicago, Illinois. There was an oral argument by Ryan 

J. Walsh.
2021 WI 35

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2018AP960

(L.C. No. 2015CV546)

STATE OF WISCONSIN : IN SUPREME COURT

Country Visions Cooperative,

 Plaintiff-Appellant-Cross-Respondent-

 Petitioner,

 v.

Archer-Daniels-Midland Company and United 

Cooperative,

 Defendants-Respondents-Cross-

 Appellants.

FILED

APR 21,2021

Sheila T. Reiff

Clerk of Supreme Court

ZIEGLER, J., delivered the majority opinion for a unanimous 

Court. ROGGENSACK, C.J., filed a concurring opinion.

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

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

published decision of the court of appeals, Country Visions 

Cooperative v. Archer-Daniels-Midland Co., 2020 WI App 32, 392 

Wis. 2d 672, 946 N.W.2d 169, affirming in part, reversing in 

part, and remanding with directions the Fond du Lac County 

circuit court's order1 granting Country Visions Cooperative 

("Country Visions") specific performance of its right of first 

 

1 The Honorable Gary R. Sharpe presided.
No. 2018AP960 

2

refusal to a property that Archer-Daniels-Midland Co. ("ADM") 

was attempting to sell to United Cooperative ("United"). This 

case requires us to determine whether the circuit court properly 

set the price at which Country Visions may exercise its right of 

first refusal. 

¶2 "A right of first refusal is a contractual right to be 

first in line should the opportunity to purchase or lease a 

property arise." MS Real Est. Holdings, LLC v. Donald P. Fox 

Fam. Tr., 2015 WI 49, ¶24, 362 Wis. 2d 258, 864 N.W.2d 83. 

Country Visions held a right of first refusal to a parcel of 

property with a grain facility in Ripon, Wisconsin ("Ripon 

Property"), which ADM owned. Unbeknownst to Country Visions, 

ADM entered into negotiations with United to sell the Ripon 

Property, along with three other parcels throughout Wisconsin. 

When Country Visions learned of these negotiations, Country 

Visions informed ADM of its right of first refusal. In

response, ADM and United attempted to sever the transaction into 

two separate transactions. As part of this severance, one of 

the new transactions became an offer from United to ADM to 

purchase the Ripon Property alone for $20 million. Country 

Visions did not match this purchase price, and ADM and United 

closed on their deal. 

¶3 Country Visions brought this lawsuit against ADM and 

United (collectively, "Defendants") claiming that the $20 

million sale was a sham and sought specific performance of its 

right of first refusal at a lower price. Specifically, Country 

Visions claims that Defendants artificially inflated the price 
No. 2018AP960 

3

to overcome Country Visions' right of first refusal. The 

circuit court held a bench trial and concluded that the $20 

million sale of the Ripon Property was a sham. As such, the 

circuit court determined that the price for the Ripon Property 

was actually $16.6 million and granted Country Visions 15 days 

to exercise its right of first refusal at that price. 

¶4 Country Visions and Defendants cross-appealed the 

circuit court's decision to the court of appeals on a variety of 

issues. The court of appeals affirmed in part, reversed in 

part, and remanded the case to the circuit court. Country 

Visions, 392 Wis. 2d 672, ¶64. As relevant to the issue before 

us——whether the circuit court properly set the price at which 

Country Visions may exercise its right of first refusal——the 

court of appeals concluded that the circuit court did not err in 

how it determined the appropriate right of first refusal 

exercise price. Id., ¶37. Despite this conclusion, the court 

of appeals remanded the case to the circuit court to determine 

whether the $16.6 million exercise price included personal 

property, which the right of first refusal contract excluded 

from Country Visions' purchase rights. Id., ¶43. 

¶5 Country Visions petitioned this court seeking to set 

the exercise price at $7.7 million——the price that Country 

Visions' expert determined as the "fair market value" of the 

Ripon Property.2 Country Visions argued that we should do so 

 

2 Neither Country Visions nor Defendants asked us to review 

any of the other determinations of the court of appeals.
No. 2018AP960 

4

because the circuit court violated basic right of first refusal 

principles when it set the exercise price based on United's 

willingness to pay more than the appraised value of the Ripon 

Property. We disagree. 

¶6 We conclude that the circuit court did not err in 

considering the unique synergies that the Ripon Property 

provides to United when it set the exercise price higher than 

the appraised value. For rights of first refusal, a prospective 

buyer may choose to offer significantly more than the appraised 

value of a property, especially in the context of a package 

deal. Thus, depending on the terms of the right of first 

refusal contract and the facts of the case, a circuit court may 

set an exercise price that exceeds the appraised value of the 

burdened property. However, we conclude that remand is 

necessary to determine whether the $16.6 million exercise price 

includes more than is called for in the right of first refusal 

contract. Accordingly, we affirm the court of appeals' decision 

and remand to the circuit court for proceedings consistent with 

this opinion.
No. 2018AP960 

5

I. FACTUAL BACKGROUND

¶7 This case centers on a right of first refusal contract 

between Country Visions and ADM.3 The right of first refusal 

contract provides as follows:

1. For a period of ten (10) years from the date 

hereof (the "ROF Period"), [ADM] hereby grants to 

[Country Visions] a right of first refusal to purchase 

the [Ripon Property] or applicable portion thereof, 

but only on the terms and conditions as provided in 

this Agreement. During [the] ROF Period, [ADM] shall 

not sell, convey or in any way convey or transfer any 

part [of] the [Ripon Property] without first complying 

with the provisions of this Agreement.

2. If at any time during the ROF Period, [ADM] 

desires to sell any part of the [Ripon Property] to a 

party . . . , pursuant to a bona fide written offer 

from a third party (the "Third Party Offer"), [ADM] 

shall first notify [Country Visions] of [ADM's] desire 

to sell the [Ripon Property] or applicable portion 

thereof (the "Offered Property") and such notice (the 

 

3 Country Visions and ADM were not the original parties to 

this contract. Originally, Golden Grain, LLC and Agri-Land 

Co-op sold the Ripon Property to Olsen Brothers Enterprises, 

LLP. As part of this deal, Olsen Brothers Enterprises granted 

to Golden Grain and Agri-Land Co-op a right of first refusal to 

the Ripon Property, which is the right of first refusal contract 

at issue in this case. 

After the right of first refusal contract was executed, 

Olsen Brothers Enterprises sold the Ripon Property to Paul and 

David Olsen individually, which did not trigger the right of 

first refusal. Paul and David Olsen later filed for bankruptcy. 

As part of this bankruptcy, ADM purchased the Ripon Property. 

Golden Grain and Agri-Land Co-op, through a series of 

mergers and assignments, transferred their right in the right of

first refusal agreement to Country Visions. 

Consequently, ADM became the owner of the Ripon Property, 

and Country Visions became the holder of the right of first 

refusal to the Ripon Property. 
No. 2018AP960 

6

"Notice") shall be deemed an offer to sell the Offered 

Property upon the terms set forth in the Third Party 

Offer. The Notice shall identify the bona fide 

prospective purchaser of the Offered Property in 

addition to specifying the purchase price and other 

terms and conditions of such proposed sale (such price 

and other terms being referred to as "the Third Party 

Terms") and shall be accompanied by a copy of the 

Third Party Offer. [Country Visions] shall have the 

right and option to purchase the Offered Property on 

the Third Party Terms but only if [Country Visions] 

shall provide written notice of such election to [ADM] 

within fifteen (15) days after [Country Visions'] 

receipt of the Notice. . . .

The parties do not dispute that the right of first refusal 

contract outlines the following obligations for the exercise of 

the right of first refusal: ADM cannot sell the Ripon Property 

without first offering it to Country Visions; Country Visions 

has a right to purchase the Ripon Property at the third party's 

purchase price; and Country Visions has 15 days to exercise the 

right of first refusal and provide notice of its intent to match 

the third-party offer for the Ripon Property after receiving 

notice of the third party's offer. 

¶8 In May 2015, and unbeknownst to Country Visions, ADM 

started negotiations to sell its Wisconsin grain business assets 

to United. Defendants reached a tentative agreement for United 

to purchase the Ripon Property and three other grain storage 

facilities around Wisconsin4 from ADM for a total price of $25 

million. The tentative agreement included the land, 

improvements, and personal property of each facility; it did not 

 

4 The other facilities are located in Westfield, 

Auroraville, and Oshkosh. 
No. 2018AP960 

7

include the inventory of grain that ADM had in storage at each 

facility. 

¶9 Sometime in early October 2015, Country Visions 

learned of the proposed sale of the Ripon Property. On 

October 8, 2015, Country Visions informed ADM that it held a 

right of first refusal to the Ripon Property. Country Visions, 

pursuant to the right of first refusal contract, requested a 

copy of the third-party offer to purchase so that it could 

determine whether it wanted to exercise its right of first 

refusal. 

¶10 At this point, Defendants had not executed their 

tentative agreement. Upon learning of Country Visions' right of 

first refusal, Defendants restructured their tentative 

agreement. Defendants severed the tentative agreement into two 

separate transactions. One transaction called for United to 

purchase the Ripon Property from ADM, excluding all inventory 

and personal property, for $20 million. The other transaction 

called for United to purchase from ADM the other three 

properties and all personal property for $5 million and all 

inventory at its market value. Defendants assigned such a high 

value to the Ripon Property in part due to the unique synergies 

the Ripon Property would provide to United's business.5 

 

5 The circuit court explained the unique synergies that the 

Ripon Property provided to United as follows:

[The Ripon Property] was particularly beneficial to 

[United] because its 50 railroad car loading capacity 

in conjunction with United's second location in Ripon 

and location in Oshkosh all serviced by the same rail 
No. 2018AP960 

8

¶11 On October 13, 2015, United provided ADM with a formal 

offer to purchase the Ripon Property for $20 million, triggering 

ADM's obligations under the right of first refusal contract. 

The next day, consistent with its contractual obligations, ADM 

notified Country Visions of United's formal offer and provided 

Country Visions with a copy of the offer. Country Visions 

claimed this $20 million purchase price was a sham and elected 

not to meet the terms of the third-party offer. 

¶12 On October 16, 2015, Defendants closed on the other 

transaction, purchasing the other three properties and personal 

property for $5 million. In early November, after the right of 

first refusal exercise period lapsed, Defendants closed on the 

 

line, allowed it to load 100 car trains to ship grain 

to more lucrative markets. 

In addition, the proximity of Auroraville and 

Westfield allowed trucking of grain to the [Ripon 

Property] for shipping, all within an operations 

system geographically proximate to the subject 

location. 

. . . .

[United] intended to use and does use [the Ripon 

Property] to store and ship grain and does and can 

implement 100 car trains that increase profitability 

and can reach markets not ordinarily available without 

the ability to load 100 car trains. In addition, 

unlike an agronomy use primarily for storage and 

manufacture of livestock feed, the United operation 

loads, ships, stores for future shipping and transfers 

grain using a margin that requires larger amounts to 

be handled in order to obtain profitability. The 

Court does find synergies with United's other 

facilities and with the ability to load 100 car 

trains.
No. 2018AP960 

9

Ripon Property transaction, with United purchasing it for $20 

million. Country Visions brought a lawsuit against Defendants. 

II. PROCEDURAL POSTURE

¶13 On November 11, 2015, Country Visions filed this 

lawsuit seeking, as relevant to this appeal, a declaratory 

judgment that it had the right to purchase the Ripon Property 

for its fair market value and specific performance of the right 

of first refusal contract at that fair market value.6 

¶14 After several years of pre-trial motions and 

decisions not relevant to this appeal, the circuit court held a 

bench trial. During the bench trial, Country Visions and 

Defendants supplied expert testimony as to the value of the 

 

6 In response, ADM moved to reopen the bankruptcy proceeding 

at which it purchased the Ripon Property. In re Olsen, 563 

B.R. 899, 902 (Bankr. E.D. Wis. 2017), aff'd sub nom. ArcherDaniels-Midland Co. v. Country Visions Coop., No. 17-cv-0313-

bhl, 2021 WL 651553 (E.D. Wis. 2021). The bankruptcy court 

agreed to reopen the proceeding and addressed the issue of 

"whether a final, non-appealable order approving a real estate 

sale could extinguish a right of first refusal without affording 

the holder of the right formal notice and the opportunity to 

object." Id. The bankruptcy court held that Country Visions 

"was not given notice during the bankruptcy proceedings 

sufficient to satisfy due process before its rights were 

extinguished," so ADM did not take the Ripon Property "free and 

clear of [Country Visions]' interest." Id. at 909. Therefore, 

ADM is still subject to the right of first refusal despite its 

purchase of the Ripon Property out of bankruptcy. 
No. 2018AP960 

10

Ripon Property.7 Country Visions' expert, Mark Akers, opined 

that the Ripon Property was worth $7.7 million.8 Defendants' 

 

7 There were several experts in this case, but the circuit 

court focused on two in reaching its decision: Mark Akers for 

Country Visions and Jack Friedman for Defendants. Similarly, 

the parties focused on Akers' and Friedman's testimony. Just as 

the circuit court and parties did, we will focus on these two 

experts. 

8 Akers reached this valuation using the cost approach and 

sales comparison approaches of appraisal. The cost approach 

"seeks to measure the cost to replace the property." Adams 

Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, ¶35, 294 

Wis. 2d 441, 717 N.W.2d 803. "In the cost approach, the 

appraiser analyzes the cost of the subject improvements by 

comparison to the cost to develop similar improvements as 

evidenced by the cost of construction of substitute properties 

with the same utility as the subject property." Appraisal 

Institute, The Appraisal of Real Estate, 377 (13th ed. 2008). 

Using the cost approach, Akers estimated that the value of the 

Ripon Property at $7,548,000. 

"In the sales comparison approach, an opinion of market 

value is developed by comparing properties similar to the 

subject property that have recently sold, are listed for sale, 

or are under contract (i.e., for which purchase offers and a 

deposit have been recently submitted)." Id. at 297. Using the 

sales comparison approach, Akers estimated the value of the 

Ripon Property at $7,458,000. 

Akers then averaged the cost approach and the sales 

comparison approach to reach his opinion of value at 

$7.5 million. The circuit court believed that his opinion of 

value was in error based on "errors in the bin size and some 

inaccuracy about access and some criticism regarding 

comparables" and determined that $7.7 million was a more 

accurate reflection of Akers' opinion of value as it was Akers' 

"higher number on his margin of error." We accept this as 

Akers' opinion of value for purposes of this appeal, as both 

parties do. 
No. 2018AP960 

11

expert, Jack Friedman, opined that the Ripon Property was worth 

$16.6 million to United.9 

¶15 On May 3, 2018, the circuit court issued a written 

decision. The court concluded "that the $20 million dollar 

offer [for the Ripon Property] was a sham at an arbitrarily 

inflated price" "for the purpose of preventing [Country Visions] 

from exercising the right of first refusal." The court also 

found that

the fair value for [United] to use in purchasing the 

[Ripon Property] was the $16.6 million dollars 

testified to by the witness the court believes was 

 

9 Friedman reached this valuation amount by analyzing the 

value of the Ripon Property "in the context of the $25 million 

United spent when purchasing four facilities from ADM in 2015." 

Specifically, Friedman said that "a reasonable approach to 

valuing the Ripon Property in context of this transaction is to 

consider what percentage of the total $25 million value was 

attributable to the Ripon Property." 

Friedman used the income capitalization method to 

approximate the prices of the other three facilities——Westfield, 

Auroraville, and Oshkosh——that were part of this deal. "In the 

income capitalization approach, an appraiser analyzes a 

property's capacity to generate future benefits and capitalizes 

the income into an indication of present value." Appraisal 

Institute, supra note 8, at 445. To reach his valuation for the 

facilities, Friedman looked at the grain storage capacity, railloading capability, and quality of cropland near the facility to 

inform his estimate of value. Using these factors, among 

others, Friedman assigned $500,000 for the Westfield facility as 

salvage value only, $2 million for the Auroraville property, and 

$5.9 million for the Oshkosh facility. Friedman then estimated 

that the value of the Ripon Property was the remainder of the 

$25 million total purchase price——$16.7 million. As the circuit 

court noted in its decision, this number should have been 

$16.6 million, but this error is of no consequence to our 

conclusion, and we use $16.6 million as Friedman's opinion of 

value.
No. 2018AP960 

12

most credible in assessing valuation, Jack Friedman, 

whose credentials as an operator in the grain industry 

in Iowa and one with experience in valuing and 

acquiring grain elevator properties together with his 

own assessment of the values of the other three 

properties acquired by [United] from [ADM] made his 

opinion the most persuasive testimony. Although 

Mr. Friedman valued the Ripon property at $16.7 

million when that figure is coupled with the other 

valuations for the remaining properties the value was 

overstated by $100,000 so the Court has reduced his 

estimate as to the Ripon property from $16.7 to $16.6 

million. 

. . . The plaintiff would have this court 

construe fair market value to an appraiser's opinion 

based upon comparables, assessed values and a 

depreciated cost assessment. This Court believes that 

appraised value can also include both the income 

approach together with some inherent qualities that 

would be attributable to a specific buyer. Those type 

of inherent qualities can include things like 

proximity in the case of an adjoining owner, access in 

the case of a land locked parcel and synergies in a 

case like [United] and its geographical and rail line 

related enhancements to value. 

Ultimately, the circuit court granted Country Visions specific 

performance to exercise the right of first refusal——giving 

Country Visions 15 days to exercise the right of first refusal 

at the $16.6 million exercise price. 

¶16 Both Country Visions and Defendants appealed the 

circuit court's decision on numerous grounds. As relevant to 

our review, the court of appeals was asked to address "the 

appropriate price at which the [right of first refusal] was to 

be exercised." Country Visions, 392 Wis. 2d 672, ¶31. The 

court of appeals concluded that the circuit court "did not err 

in considering the unique synergies specific to United in 

determining an appropriate exercise price under the equitable 
No. 2018AP960 

13

remedy it adopted." Id., ¶37. However, the court of appeals 

did not specifically affirm the Ripon Property's $16.6 million 

valuation because it was unclear from the circuit court's 

decision whether the $16.6 million valuation included personal 

property, which the court of appeals determined was excluded 

from the terms of the right of first refusal contract. Id., 

¶38. To remedy this lack of clarity, the court of appeals 

remanded for the circuit court to "determine what portion of the 

$25 million previously agreed-upon price is fairly allocable to 

the real estate alone, had United made a bona fide offer for 

just that property." Id., ¶43. 

¶17 Country Visions petitioned this court seeking to set 

the exercise price at $7.7 million——the price that Country 

Visions' expert determined as the "fair market value" of the 

Ripon Property. Country Visions argued that we should do so 

because the circuit court violated basic right of first refusal 

principles when it set the exercise price based on United's 

willingness to pay more than the appraised value of the Ripon 

Property. We granted review. 

III. STANDARD OF REVIEW

¶18 This case requires us to determine whether the circuit 

court properly set the price at which Country Visions could 

exercise its right of first refusal. This requires us to apply 

the law to the circuit court's findings of fact. 

¶19 "We uphold a circuit court's findings of fact unless 

they are clearly erroneous." Phelps v. Physicians Ins. Co. of 
No. 2018AP960 

14

Wis., Inc., 2009 WI 74, ¶34, 319 Wis. 2d 1, 768 N.W.2d 615. 

"[A] finding of fact is clearly erroneous when 'it is against 

the great weight and clear preponderance of the evidence.'" 

Id., ¶39 (quoting State v. Arias, 2008 WI 84, ¶12, 311 

Wis. 2d 358, 752 N.W.2d 748). "Therefore, although evidence may 

have presented competing factual inferences, the circuit court's 

findings are to be sustained if they do not go 'against the 

great weight and clear preponderance of the evidence.'" Id.

(quoting Arias, 311 Wis. 2d 358, ¶12). 

¶20 The application of the circuit court's findings of 

fact to the law is a question of law. Id., ¶35. "We decide 

questions of law independently." Id.

IV. ANALYSIS

¶21 We begin our analysis with a general discussion of 

rights of first refusal, paying particular attention to the 

interaction between rights of first refusal and inflated values 

in package deals. We then apply that law to the facts of this 

case. 

A. Rights of First Refusal Generally

¶22 "A right of first refusal is a contractual right to be 

first in line should the opportunity to purchase or lease a 

property arise." MS Real Est. Holdings, 362 Wis. 2d 258, ¶24. 

As we have explained, a right of first refusal is

a right to buy before or ahead of others, thus, a preemptive 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 
No. 2018AP960 

15

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.

Id., ¶25 (quoting Edlin v. Soderstrom, 83 Wis. 2d 58, 68, 264 

N.W.2d 275 (1978)). "Where the procedure [for exercising the 

right] is clear and the time to exercise the right is 

reasonable, a right of first refusal 'provides a possible buyer 

who is constantly available.'" Id., ¶28 (quoting Bruns v. 

Rennebohm Drug Stores, Inc., 151 Wis. 2d 88, 99, 442 N.W.2d 591 

(Ct. App. 1989)). 

¶23 Thus, if a property owner receives an offer, the owner 

must offer the property to the right holder first in compliance 

with the right of first refusal contract terms.10 If the right 

holder accepts the property owner's offer, the right holder 

purchases the property. If the right holder declines the 

property owner's offer, the property owner may then accept the 

prospective buyer's offer. Accordingly, "[t]he holder of a 

right of first refusal cannot force landowners to sell or lease 

their property unless they freely choose to do so. Even then, 

 

10 We note that generally, right of first refusal contracts 

provide that the right holder must purchase the property at the 

same purchase price with the same terms and conditions as the 

prospective buyer. See, e.g., MS Real Est. Holdings, LLC v. 

Donald P. Fox Fam. Tr., 2015 WI 49, ¶6, 362 Wis. 2d 258, 864 

N.W.2d 83. As is the case with every contract, the parties to a 

right of first refusal contract can set the terms of the 

contract, including setting a fixed exercise price or setting 

the methodology——such as "objective pricing by way of appraisal 

or market index"——for calculating the exercise price. See

David I. Walker, Rethinking Rights of First Refusal, 5 Stan. 

J.L. Bus. & Fin. 1, 37-38 (1999). 
No. 2018AP960 

16

landowners may condition such sale or lease on terms that are 

acceptable to them." Id., ¶29.

¶24 These basic principles of rights of first refusal 

become more complicated when the burdened property is sold as 

part of a package deal with other real or personal property that 

is not subject to the right of first refusal. In addressing 

package deals and rights of first refusal, jurisdictions across 

the nation have adopted varying approaches.11 

¶25 In Wisconsin, the court of appeals addressed this 

problem of package deals and rights of first refusal for the 

first time in Wilber Lime Products, Inc. v. Ahrndt, 2003 WI 

App 259, 268 Wis. 2d 650, 673 N.W.2d 339. In Wilber Lime, the 

court of appeals addressed facts similar to those now before us. 

There, the property owner sold 180 acres, of which Wilber Lime 

held a right of first refusal to 25 of the acres. Id., ¶¶2-3. 

To resolve the case, the court of appeals had to determine how a 

court should address a right of first refusal when a property 

 

11 Some jurisdictions hold that the selling of a burdened 

property as part of a larger package deal does not trigger the 

right of first refusal but enjoins the sale of the burdened 

property as part of a package deal. See Bernard Daskal, Rights 

of First Refusal and the Package Deal, 22 Fordham Urb. L.J. 461, 

475-79 (1995). Other jurisdictions hold that the selling of a 

burdened property as part of a package deal does trigger the 

right of first refusal. See id. at 480. These jurisdictions 

that hold that the right of first refusal is triggered disagree 

as to the remedy: one jurisdiction opting for contract damages; 

another jurisdiction opting for specific performance on the 

entire package deal; and the majority of jurisdictions opting 

for specific performance on the burdened property alone. See

id. at 480-84. 
No. 2018AP960 

17

that is subject to that right of first refusal is sold as part 

of a package deal. Id., ¶8. After surveying how different 

jurisdictions addressed such a case, the court of appeals 

settled on the "middle road" approach the Fourth Circuit Court 

of Appeals set forth in Pantry Pride Enterprises v. Stop & Shop 

Cos., 806 F.2d 1227, 1230 (4th Cir. 1986). Explaining the 

Fourth Circuit's conclusions, our court of appeals stated the 

following:

[T]he [Fourth Circuit] concluded that the right of 

first refusal was triggered and that awarding specific 

performance was consistent with the parties' intent 

when they agreed to the right of first refusal. 

[Pantry Pride, 806 F.2d at 1230]. However, the court 

did not think that a simple pro rata valuation was 

fair. Instead, the court remanded the case for an 

allocation of the fair market value of the property 

burdened by the right of first refusal. Id. at 1231. 

"Permitting the exercise of the first refusal right 

[based on the purchase price of the whole] provides 

[the holder of the right] a windfall for which it 

never bargained in the lease." Id. It would bear "no 

relation to its worth" and the holder of the right of 

first refusal would "have acquired [the property] at 

an absurdly low price and on terms never really agreed 

to between [the parties]." Id.

Wilber Lime, 268 Wis. 2d 650, ¶11. Relying on Pantry Pride's 

logic, our court of appeals held that the sale of a property 

subject to a right of first refusal as part of a package deal 

triggers the right of first refusal to the burdened property and 

that the right holder is entitled to specific performance for 

the sale of the burdened property. Id., ¶12. 

¶26 The court of appeals went on to recognize "like the 

court in Pantry Pride, [there is] the possibility that the acres 
No. 2018AP960 

18

being sold are not all of equal value." Id., ¶13. The court of 

appeals then concluded:

[T]he most equitable resolution is to determine the 

fair market value of the twenty-five acres. This 

protects the landowner from being forced to sell the 

twenty-five acres at a price lower than its fair 

market value and therefore lower than the owner would 

accept if the twenty-five acres were sold alone. It 

also prevents [right holder] from receiving a windfall 

of being able to purchase the land at a price lower 

than its value. This approach best fulfills the 

intentions of the parties when they entered into the 

agreement granting [right holder] the right of first 

refusal.

Id. 

¶27 This very passage is the basis of Country Visions' 

argument that the circuit court did not apply a proper 

methodology in determining the exercise price for the Ripon 

Property. Country Visions argues that the exercise price for 

the Ripon Property must be set at the "fair market value," as 

determined using the three-tiered methodology of appraisals set 

forth in Wis. Stat. § 70.32(1) (2019-20).12 This hierarchical 

 

12 All subsequent references to the Wisconsin Statutes are 

to the 2019-20 version unless otherwise indicated.

"Tier 1" of this three-tiered methodology requires the 

appraiser to examine a "recent arm's-length sale" of the subject 

property. Metro. Assocs. v. City of Milwaukee, 2018 WI 4, ¶32, 

379 Wis. 2d 141, 905 N.W.2d 784. "If there is no recent sale of 

the subject property, the appraiser moves to tier 2, examining 

recent, arm's-length sales of reasonably comparable properties 

(the 'sales comparison approach')." Id., ¶33. "When both tier 

1 and tier 2 are unavailable, an assessor moves to tier 3." 

Id., ¶34. For tier 3, an assessor:

may consider all the factors collectively which have a 

bearing on value of the property in order to determine 

its fair market value. These factors include cost, 
No. 2018AP960 

19

methodology is applicable in cases involving taxation and 

eminent domain, where the need for uniform application is 

essential. See Wis. Stat. § 70.32(1); Metro. Assocs. v. City of 

Milwaukee, 2018 WI 4, ¶31, 379 Wis. 2d 141, 905 N.W.2d 784

(applying the methodology to taxation cases); Adams Outdoor 

Advert., Ltd. v. City of Madison, 2006 WI 104, ¶47, 294 

Wis. 2d 441, 717 N.W.2d 803 (same to eminent domain cases); 

State ex rel. Levine v. Bd. of Rev. of Vill. of Fox Point, 191 

Wis. 2d 363, 372, 528 N.W.2d 424 (1995) (explaining that 

§ 70.32(1) "seeks to ensure a uniform method of taxation by 

requiring assessors to assess real estate at its fair market 

value, using the 'best information' that the assessor can 

practicably obtain"). However, the goal of the circuit court 

when setting the exercise price for a right of first refusal is 

not to determine the fair market value of the burdened property. 

Rather, the circuit court must determine the actual price that 

the prospective third-party buyer would have offered for the 

burdened property, based on the terms of the contract and facts 

of the case (we will refer to this actual price as the 

 

depreciation, replacement value, income, industrial 

conditions, location and occupancy, sales of like 

property, book value, amount of insurance carried, 

value asserted in a prospectus and appraisals produced 

by the owner. Both the income approach, which seeks 

to capture the amount of income the property will 

generate over its useful life, and the cost approach, 

which seeks to measure the cost to replace the 

property, fit under the umbrella of tier 3 analysis. 

Id. (cleaned up).
No. 2018AP960 

20

"prospective offer price"). See Wilber Lime, 268 Wis. 2d 650, 

¶13 ("This approach best fulfills the intentions of the parties 

when they entered into the agreement . . . ."). This 

prospective offer price, contrary to Country Visions' argument, 

need not equal the appraised value nor the fair market value. 

See Pantry Pride, 806 F.2d at 1231-32; In re Adelphia Commc'ns 

Corp., 368 B.R. 348, 357-58 (Bankr. S.D.N.Y. 2007). As the 

court in Adelphia explained, 

The price paid by [the prospective third-party buyer]

apparently exceeded fair market value, but it was 

their right to pay greater than market value. The 

valuation expert for the [right holder] conceded as 

much. It makes no difference that the [property]

might be worth more to [the prospective third-party 

buyer] than to other potential buyers because of 

synergies and economies of scale that [the prospective 

third-party buyer] could bring to bear. It appears 

that [the prospective third-party buyer] was willing 

to pay more for the [property] than other potential 

offerors would have paid. But that is exactly why one 

could not simply rely on what the "fair market value" 

of the [property] might be to those other potential 

buyers. It is the offer made by [the prospective 

third-party buyer] that must be matched by the [right 

holder].

Adelphia, 368 B.R. at 357-58. Indeed, the prospective offer 

price may be significantly higher than either the appraised 

value or the fair market value of the burdened property. A 

prospective buyer may be willing to pay significantly more than 

the appraised value because the property gives the prospective 
No. 2018AP960 

21

buyer greater utility than a different buyer.13 This is perhaps 

even more true when a potential buyer is purchasing the burdened 

property in a package deal where the value of the burdened 

property increases for the potential buyer because of synergies 

or relationships between the properties that are a part of the 

package deal. See, e.g., Adelphia, 368 B.R. at 357 ("It makes 

no difference that the Consortium Systems might be worth more to 

Time Warner than to other potential buyers because of the 

synergies and economies of scale that Time Warner could bring to 

bear."); In re Albion Disposal, Inc., 152 B.R. 794, 802 (Bankr. 

W.D.N.Y. 1993) ("The value of the OSL land if sold alone is far 

less than the value of the OSL lands if combined with the Smith 

lands in a 'package deal.'" (footnote omitted)); see also It's 

My Party, Inc. v. Live Nation, Inc., 811 F.3d 676, 688 (4th Cir. 

2016) ("The real loss would be the productive synergies created 

when sellers package complementary products."). Consequently, 

we reject Country Visions' contention that the prospective offer 

price must equal the appraised or fair market value.14 

 

13 See, e.g., Ben Krumholz, Packers' Development Potential 

Moves Across Lombardi Ave with Funeral Home Site Purchase, 

Fox 11 News (July 1, 2020), https://fox11online.com/

news/local/green-bay/packers-development-potential-moves-acrosslombardi-ave-with-funeral-home-site-purchase (explaining that 

the Green Bay Packers paid three times the assessed value for 

two parcels to support its Titletown District development). 

14 To the extent that Wilber Lime says that the circuit 

court in that case was to determine the fair market value on 

remand, we interpret that as requiring the circuit court to 

determine the prospective offer price.
No. 2018AP960 

22

¶28 This general discussion of rights of first refusal and 

package deals elucidates certain key principles that are

applicable to the case before us. First, the sale of a property 

that is subject to a right of first refusal as part of a package 

deal triggers the right of first refusal. Wilber Lime, 268 

Wis. 2d 650, ¶12. Second, a circuit court must break up the 

package deal and allow a right of first refusal holder to 

exercise that right on only the burdened property. Id. Third, 

the circuit court must look to the contract to determine how to 

calculate the exercise price for the right of first refusal. MS 

Real Estate, 362 Wis. 2d 258, ¶¶24-29. Fourth, if the right of 

first refusal contract provides that the right holder must match 

the purchase price and terms and conditions of the prospective 

buyer's offer, as is generally the case, the court must 

determine the prospective offer price——the actual price that the 

prospective third-party buyer would have offered for the 

burdened property based on the terms of the contract and facts 

of the case. See Wilber Lime, 268 Wis. 2d 650, ¶13; Pantry 

Pride, 806 F.2d at 1231-32; Adelphia, 368 B.R. at 357-58. 

Finally, the circuit court may grant specific performance to the 

right holder to exercise the right of first refusal to purchase 

the burdened property at the exercise price. See Wilber Lime, 

268 Wis. 2d 650, ¶13. 

B. Application

¶29 With these principles in mind, we turn to the facts of 

the dispute between Country Visions and Defendants. The right 

of first refusal contract between Country Visions and ADM was a 
No. 2018AP960 

23

typical right of first refusal contract, providing that Country 

Visions has the right to purchase the Ripon Property at the 

"purchase price and other terms and conditions" that a third 

party offered. 

¶30 When ADM and United entered an agreement to sell the 

Ripon Property, the offer triggered Country Visions' right of 

first refusal. The circuit court found that "the $20 million 

offer was a sham at an arbitrarily inflated price" and, instead, 

used the $25 million package deal price to determine an accurate 

exercise price. 

¶31 The circuit court then set the exercise price at $16.6 

million and granted to Country Visions specific performance. 

Country Visions argues that this number is far greater than the 

appraised value of the property——$7.7 million——meaning we should 

replace the circuit court's exercise price of $16.6 million with 

the appraised value. As we described above, a prospective buyer 

may choose to offer significantly more than the appraised value 

of a property, especially in the context of a package deal. 

This case typifies such a transaction. The circuit court found 

that the "synergies in a case like [United] and its geographical 

and rail line [serve as] enhancements to value." Because of 

these unique synergies that the Ripon Property provided to 

United, the circuit court determined that the prospective offer 

price that United offered for the Ripon Property was $16.6 

million. Accordingly, we reject Country Visions' request to set 

the exercise price in this case at the $7.7 million amount that 

its expert determined was the appraised value of the Ripon 
No. 2018AP960 

24

Property.15 Furthermore, we conclude that the circuit court did 

not err in considering the unique synergies that the Ripon 

Property provides to United when it set the exercise price 

higher than the appraised value. 

¶32 However, while the circuit court did not err in how it 

reached its conclusion, it is unclear in the circuit court's 

decision whether the court correctly valued only the portion of 

the package deal that was subject to the right of first refusal. 

This lack of clarity arises because the circuit court used the 

package deal to set the exercise price, and that package deal 

included the land, improvements, and personal property of each 

of the four facilities. Country Visions' right of first refusal 

was for the real property at the Ripon Property only. 

Consequently, the package deal should be broken up, removing the 

other three facilities and all personal property, and Country 

Visions should be permitted to exercise its right of first 

refusal on only the real property at the Ripon Property. See

Wilber Lime, 268 Wis. 2d 650, ¶12. While it is clear that the 

circuit court removed the other three facilities, it is unclear 

from the record whether the circuit court removed the personal 

 

15 This case involved sophisticated commercial actors. If 

Country Visions had wished for the right of first refusal 

contract to require that the exercise price be set at the 

appraised value of the Ripon Property, it could have contracted 

to do so. See Walker, supra note 10, at 37-38 (explaining the 

different methods a right of first refusal can set the exercise 

price). 
No. 2018AP960 

25

property when it determined that the actual value of the Ripon 

Property was $16.6 million. 

¶33 Accordingly, we conclude that remand is necessary to 

determine whether the $16.6 million exercise price included more 

property than what the right of first refusal contract covers. 

On remand, the circuit court should create a record such that 

the exercise price is comprised of the real property at the 

Ripon Property only. Finally, the circuit court may then grant 

specific performance to Country Visions at that exercise price. 

We leave to the circuit court's discretion how best to 

accomplish these directions on remand.

V. CONCLUSION

¶34 We conclude that the circuit court did not err in 

considering the unique synergies that the Ripon Property 

provides to United when it set the exercise price higher than 

the appraised value. For rights of first refusal, a prospective 

buyer may choose to offer significantly more than the appraised 

value of a property, especially in the context of a package 

deal. Thus, depending on the terms of the right of first 

refusal contract and the facts of the case, a circuit court may 

set an exercise price that exceeds the appraised value of the 

burdened property. However, we conclude that remand is 

necessary to determine whether the $16.6 million exercise price 

includes more than is called for in the right of first refusal 

contract. Accordingly, we affirm the court of appeals' decision 
No. 2018AP960 

26

and remand to the circuit court for proceedings consistent with 

this opinion.

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

affirmed.
No. 2018AP960.pdr

1

¶35 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). We 

review a right of first refusal (ROFR) that is held by Country 

Visions Cooperative. The ROFR burdens the Ripon Property, which 

was owned by Archer-Daniels-Midland (ADM). The Ripon Property 

was part of a package sale to United Cooperative that also 

included three other properties, Oshkosh, Auroraville and 

Westfield, all of which were owned by ADM. 

¶36 We are asked to determine whether the price for the 

Ripon Property under the ROFR is controlled by an appraisal 

purporting to define the Ripon Property's fair market value or 

whether the price is affected by the price that United assigned 

to the Ripon Property in its package offer. I conclude that the 

ROFR's terms, which do not mention fair market value, control. 

The ROFR grants a right to purchase by matching "the purchase 

price and other terms and conditions of such proposed sale" made 

by a bona fide purchaser in a written offer.1 Therefore, the 

terms Country Visions must match, i.e., the exercise price, in 

order to purchase the Ripon Property are United's terms if they 

comprise a bona fide offer. However, an opinion on the fair 

market value of the Ripon Property may provide some guidance 

about whether the price United alleges that it paid for the 

Ripon Property in its package purchase was bona fide or an 

artificial price created to defeat Country Visions' purchase 

under the ROFR. In re Adelphia Commc'ns Corp., 368 B.R. 348, 

356-57 (Bnkr. S.D.N.Y. 2007) (explaining that when the offeror 

 

1 R. 826:2. 
No. 2018AP960.pdr

2

and the seller have set a good faith price for an asset sold as 

part of a group, that price should control). 

¶37 The majority opinion concludes that the $16.6 million 

exercise price for the Ripon Property that was set by the 

circuit court should be reviewed to determine whether it

included personal property that was sold with the real estate 

under the Asset Purchase Agreement (APA).2 For the reasons set 

forth below, I agree and therefore, I respectfully concur and 

join the majority opinion. 

I. BACKGROUND

¶38 The majority opinion capably sets out the background 

underlying this controversy. Therefore, I describe here only 

that which is necessary to understand my writing below. 

¶39 Country Visions brought this lawsuit to enforce its 

ROFR to purchase the Ripon Property that ADM sold to United as 

part of a $25 million package sale of four properties, which 

included both real estate and personal property.3 The circuit 

court held a lengthy bench trial.4 

 

2 Majority op., ¶6. 

3 Although the Ripon Property was subject to an allegedly 

separate offer to purchase for $20 million, with the remaining 

three properties selling for $5 million, the sales were interdependent. As counsel for United said, "We need to be sure they 

are tied. I know there must be a bit of a trust factor but we 

need to do the 2 together." On review, there is no real 

challenge to the Ripon Property being part of a package sale. 

4 Circuit Court Judge Gary R. Sharpe of Fond du Lac County 

did outstanding judicial work in addressing the many, many 

factual and legal issues presented by this very complicated 

case.
No. 2018AP960.pdr

3

¶40 The circuit court found that United had valued the 

property it purchased from ADM in various ways. For example, 

United and ADM allocated the $25 million purchase price as $14 

million for personal property, leaving $11 million for all four 

parcels of real estate.5 United's executive, David Cramer, 

assigned $20 million of the purchase price to the Ripon 

Property.6 And, United booked the cost of the Ripon Property at 

$8.725 million.7 

¶41 Country Visions and United provided experts to opine 

on the actual price for the Ripon Property's part of the $25 

million package sale. Country Visions presented Mark Akers who 

appraised the property as having a fair market value of $7.5 

million.8 The circuit court found that his approach to valuation 

was "insufficient in determining value in a sale to United."9 

¶42 The circuit court found that United "intended to use 

and does use [the Racine Property] to store and ship grain and 

does and can implement 100 car trains that increase 

profitability."10 The court also found that the Ripon Property 

 

5 Findings of Fact, ¶8. Some of the "Findings of Fact" 

actually are conclusions of law, and some of the listings after 

the heading "Conclusions of Law" are findings of fact. However, 

to assist a reader who is referring to the record, I use the 

labels of the circuit court. 

6 Id., ¶14. 

7 Id., ¶22. 

8 Id., ¶23. 

9 Id., ¶25. 

10 Id.
No. 2018AP960.pdr

4

had "synergies with United's other facilities and with the 

ability to load 100 car trains."11

¶43 United presented testimony from Jack Friedman, who 

opined that the Ripon Property had a value of $16.7 million to 

United. Due to what the circuit court characterized as a math 

error, the court concluded that the Ripon Property accounted for 

$16.6 million of the $25 million United paid to ADM based on 

Mr. Friedman's testimony.12

¶44 The circuit court also made a number of "Conclusions 

of Law," most of which we were not asked to review. One 

conclusion for which we accepted review is whether "the fair 

value for United Cooperative to use in purchasing the subject 

parcel was the $16.6 million dollars testified to by [] Jack 

Friedman."13 The circuit court concluded that Country Visions 

was entitled to specific performance against United at the 

exercise price of $16.6 million.14 

¶45 The court of appeals concluded that the ROFR required 

a bona fide offer, but not necessarily an offer based on the 

fair market value derived through the three tiered methodology 

employed in taxation and eminent domain valuations. Country 

Visions Coop. v. Archer-Daniels-Midland Co. and United Coop., 

2020 WI App 32, ¶33, 392 Wis. 2d 672, 946 N.W.2d 169. The court 

 

11 Id.

12 Id., ¶26. 

13 Conclusions of Law, ¶5. 

14 Id., ¶10. 
No. 2018AP960.pdr

5

reasoned that because County Visions' right to purchase arose 

under a ROFR, courts are "more interested in discerning the most 

likely arms-length purchase price pertaining to this buyer." 

Id., ¶34 (emphasis in original). The court of appeals was 

concerned with whether the circuit court's $16.6 million 

exercise price included the "business assets [] set forth in the 

APA" because "nowhere does it appear that Friedman——and by 

extension the trial court——took into account the value of the 

personal property at all." Id., ¶¶39, 40 (emphasis in 

original). 

II. DISCUSSION

A. Standard of Review

¶46 On review, we affirm the circuit court's findings of 

fact unless they are clearly erroneous. Phelps v. Physicians 

Ins. Co. of Wis., Inc., 2009 WI 74, ¶34, 319 Wis. 2d 1, 768 

N.W.2d 615. In the case before us, once the historic facts are 

determined we compare them to the requirements of the ROFR. 

This presents a question of law that we independently decide, 

while benefitting from discussions in previous court decisions. 

Id., ¶35. 
No. 2018AP960.pdr

6

B. ROFR General Principles

¶47 It has been said that a ROFR is "simply a fancy name 

for a small bundle of contract terms." Walker, David I., 

Rethinking Rights of First Refusal, 5 Stan. J.L. Bus. & Fin. 1, 

5 (1999). As we have explained, a ROFR creates contractual 

rights, the terms for which are stated in the document granting 

the rights. Edlin v. Soderstrom, 83 Wis. 2d 58, 68, 264 N.W.2d 

275 (1978) (noting that such a contract may give a prospective 

purchaser the right to buy if the seller decides to sell). A 

ROFR also imposes a duty on the owner of such property to offer 

to the holder of the ROFR the opportunity to purchase at terms 

another has offered, which terms the owner is willing to accept. 

Wilber Lime Prods., Inc. v. Ahrndt, 2003 WI App 259, ¶8, 268 

Wis. 2d 650, 673 N.W.2d 339. 

¶48 When a ROFR burdens property that the owner has chosen 

to sell together with other properties, sorting out the exercise 

price for the property to which the ROFR applies can be 

complicated. This is especially so when the ROFR contains no 

yardstick, such as appraised value or fair market value, by 

which to measure the terms of an offer that the owner says it is 

willing to accept for an entire package. Daskal, Bernard, 

Rights of First Refusal and the Package Deal, 22 Fordham Urb. 

L.J., 461, 465 (1995) (explaining that where no criteria are 

stated for the exercise of the ROFR, the third party's terms 

provide relevant criteria). However, "allocations of price to 

elements of a package may readily be manipulated to defeat

contractual rights of first refusal." Pantry Pride Enters., 
No. 2018AP960.pdr

7

Inc. v. Stop & Shop Cos., Inc., 806 F.2d 1227, 1231-32 (4th Cir. 

1986) (emphasis in original). 

¶49 Courts have examined various methods by which to value 

the exercise price for ROFRs that burden one property in a 

package sale. As with general contract interpretation 

principles, some courts attempt to determine the intent of the 

parties to the ROFR. See Gleason v. Norwest Mortg., Inc., 243 

F.3d 130, 142 (3d Cir. 2001) (reviewing prior dealings between 

the parties). Some courts have held that in the absence of bad 

faith or another basis for a change in the allocated price, 

proportionate pricing controls. See Adelphia Commc'ns, 368 B.R. 

at 356-58. Other courts have said that when the ROFR contains 

price terms, the owner must honor those terms if it wished to 

sell. See Foster v. Bullard, 554 S.W.2d 66, 67 (Tex. Civ. App. 

1977). 

C. Country Visions' ROFR

¶50 Country Visions' ROFR is set out in a document 

recorded at the Fond du Lac Register of Deeds. It states in 

relevant part: 

[T]he Grantor has agreed to grant to the Grantee a 

right of first refusal to purchase the Property but 

only upon the terms and conditions set forth 

herein. . . . For a period of ten (10) years from the 

date hereof (the "ROF Period"), the Grantor hereby 

grants to the Grantee a right of first refusal to 

purchase the Property or applicable portion 

thereof . . . .

If at any time during the ROF Period, the Grantor 

desires to sell any part of the 

Property . . . pursuant to a bona fide written offer 

from a third party (the "Third Party Offer"), the 

Grantor shall first notify the Grantee of the 
No. 2018AP960.pdr

8

Grantor's desire to sell . . . . The Grantee shall 

have the right and option to purchase the Offered 

Property on the Third Party Terms but only if the 

Grantee shall provide written notice of such election 

to the Grantor within fifteen (15) days after the 

Grantee's receipt of the Notice.[15] 

As with any written document under which a party is asserting 

rights, we begin with the terms of the document. Solowicz v. 

Forward Geneva Nat.l, LLC, 2010 WI 20, ¶13, 323 Wis. 2d 556, 780 

N.W.2d 111. Having reviewed the entire ROFR, the dispositive 

provisions of which are set forth above, I conclude that there 

is nothing in the ROFR that provides any type of measurement by 

which to gage whether the price at which United asserts it 

purchased the Ripon Property is the actual price or whether it 

is a price manipulated to defeat Country Visions' contractual 

rights.

¶51 In addition, Wisconsin has had limited appellate cases 

that address property subject to a ROFR that is being sold with 

other properties for a package price. Wilber Lime did so. It 

arose in the context of the sale of a 180-acre farm in which 25 

acres were subject to a ROFR. Wilber Lime, 268 Wis. 2d 650, ¶1. 

The court of appeals was concerned that determining the exercise 

price for the 25 acres by dividing the purchase price by 180 and 

then multiplying the quotient by 25 assumed that each acre had 

the same value when that may not be true. Id., ¶11. Therefore, 

the court rejected proportionate pricing that other courts have 

used. See Adelphia Commc'ns, 368 B.R. at 356-58. 

 

15 R. 826:2.
No. 2018AP960.pdr

9

¶52 As it structured how the actual price for the 25 acres 

should be determined, the court concluded that it was equitable 

"to determine the fair market value" of the twenty-five acres 

that were subject to the ROFR. Wilber Lime, 268 Wis. 2d 650, 

¶13. Wilber Lime explained that the fair market value "protects 

the landowner from being forced to sell the twenty-five acres at 

a price lower than its fair market value and . . . [i]t also 

prevents Wilber Lime from receiving a windfall of being able to 

purchase the land at a price lower than its value." Id.

¶53 Although Wilber Lime's directive to determine the fair 

market value of the 25 acres subject to the ROFR is an equitable 

solution given the context in which the court's decision was 

made, it has very limited, if any, relevance to the commercial 

package sale of which the Ripon Property was a part. This is so 

because of the very different contexts in which Wilber Lime and 

Country Visions arise. 

¶54 For example, in Wilber Lime, the court sought to 

determine an equitable exercise price for 25 acres of farmland 

that was part of a 180-acre farmland purchase. In the case 

before us, four commercial properties were purchased as part of 

a package. All have revenue generating potentials, but those 

potentials vary considerably. Some are on a rail line and some 

are not; some were in good repair and some were not. In 

addition, United's purchase of the four properties gives it 

control of grain storage and shipping in an area west of Lake 

Winnebago in which United had been only a participant prior to 
No. 2018AP960.pdr

10

the purchase. This control factor likely affected the price 

United was willing to pay. 

¶55 Furthermore, it is without question that United 

purchased the Ripon Property to generate revenue.16 There is 

nothing in Wilber Lime that indicates that revenue generation 

was part of the motivation for the purchase of 25 acres. 

Because the ROFR grants Country Visions the right to match the 

purchase price and other terms and conditions that United 

actually paid, but grants no right to a cap or ceiling price set 

by the fair market value, I conclude that it is United's actual 

price paid for the Ripon Property that controls Country Visions 

exercise price. 

¶56 On remand, the central question is whether United's 

expert included personal property acquired under the APA when he 

asserted that the actual price for the Ripon Property was $16.6 

million. This question can be addressed on remand in at least 

two ways. 

¶57 First, personal property belonging to all four parcels 

of real estate should be identified and valued. The exercise 

 

16 Friedman discussed EBITDA (Earnings Before Interest Taxes 

Depreciation and Amortization), which is gross revenue achieved 

before paying the costs of doing business, in the context of 

evaluating the potential purchase of property. R.630:155-57. 

EBITDA is a metric used in measuring strength of performance for 

an on-going business. Hon. Christopher S. Sontchi, Valuation 

Methodologies: A Judge's View, 20 Am. Bankr. Inst. L. Rev. 1, 

11 (2012). EBITDA differs significantly from the NOI (Net 

Operating Income), another metric used to measure the strength 

of a business. The NOI focuses on the income generated by a 

business after the costs of doing business have been addressed. 

Regency W. Apartments LLC v. City of Racine, 2016 WI 99, ¶9, 372 

Wis. 2d 282, 888 N.W.2d 611. 
No. 2018AP960.pdr

11

price for the Ripon Property cannot include personal property 

because the ROFR affords Country Visions no right or obligation 

to purchase personal property. Pantry Pride, 806 F.2d at 1229. 

¶58 Second, Friedman testified to both the value of the 

Ripon Property as a standalone parcel (the value without "taking 

into consideration any synergies from anything around it")17 and 

its value to United. Both values must be carefully reviewed. 

¶59 It was Friedman's opinion that "the Ripon Property has 

high strategic value to United because it is centrally located 

within United's grain facility network and located on the same 

rail line as three of United's other large rail-loading 

facilities."18 He used two valuation methods for the Ripon 

Property. 

¶60 In part of his trial testimony, he started his 

valuation with the $25 million package purchase price. He then 

deducted $500,000 for the value of Westfield and $2,000,000 for 

Auroraville.19 This left $22,500,000 to be divided between 

Oshkosh and Ripon. He said that he divided that number based on 

the percentage of the total volume handled by these two 

properties, with 26% ($5,850,000) attributed to Oshkosh and 74% 

($16,650,000) attributed to Ripon.20 However, in his written 

report he attributed "52% of the total volume handled in the 

 

17 R. 630:155.

18 R. 773:12, Expert Report of Jack Friedman.

19 R. 630:163-65.

20 R. 630:166.
No. 2018AP960.pdr

12

last full year that ADM owned those facilities" to Ripon.21 He 

did not mention personal property that also was purchased under 

the APA.22

¶61 Friedman also calculated a stand alone value for the 

Ripon Property by using 16 cents EBITDA-per bushel times the 5.2 

million bushel capacity of Ripon, which results in an annual 

EBITDA of $832,000. He then multiplied the annual EBITDA by 10, 

yielding a standalone value for the Ripon Property of $8.3 

million.23 This valuation is based solely on the revenue 

generating potential of the Ripon Property and Friedman's 

opinion that a multiple of 10 is reasonable for a grain business 

such as the Ripon Property. 

¶62 Friedman also opined that United achieved a 6 to 10 

cent per bushel "margin gain" by using rail shipping with 100-

car trains. This is in addition to the usual per bushel revenue 

generation.24 Therefore, if Friedman had stayed with the 

$832,000 annual EBITDA he calculated for the Ripon Property and 

added a 6 to 10 cent per bushel margin gain onto Ripon's volume 

 

21 R. 773:19.

22 If 52% of the $25,000,000 package price were assigned to 

the Ripon Property, Ripon would have a value of $13,000,000, and 

if 52% were applied to what remained of the package price after 

Friedman's deductions for Westfield and Auroraville, Ripon would 

have a value of $11,700,000. Simply stated, Friedman is a 

skillful witness and his opinion that $16.6 million is the 

actual price United paid for the Ripon Property is based on his 

choice of percentages that he applied to the package purchase 

price. 

23 R. 630:155-57.

24 R. 630:141.
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of 5,200,000, the adjusted annual EBITDA that includes the 

margin gain would be $1,144,00025 to 1,352,000.26 If those 

adjusted annual EBITDAs for the Ripon Property are then 

multiplied by 10, the multiple Friedman testified was used in 

assessing potential grain business purchases, the actual price 

for the Ripon property would be between $11,440,000 and 

$13,520,000. 

¶63 Friedman was asked similar questions on crossexamination that related to United doing only twelve 100-car 

trains in 2016.27 He was asked, based on United's actual 2016 

production, if margin gains of 2.83 to 4.8 and were added to 

Ripon's standalone value of $8.3 million, the range of prices 

for Ripon would be between $11.13 million and $13.1 million.28 

¶64 Friedman agreed with opposing counsel's valuation if 

actual 2016 performance were used.29 However, Friedman objected 

to the valuation because United had plans to move 22 million 

bushels of grain each year, which he believed it could 

accomplish.30 

 

25 5,200,000 x .06 = 312,000 + $832,000 = $1,144,000. 

26 5,200,000 x .10 = 520,000 + 832,000 = $1,352,000.

27 R. 630:211-215.

28 The above two examples are based on revenue production. 

Therefore, they may have value to the circuit court when this 

matter is remanded to determine whether personal property was 

included in the $16.6 million price that the circuit court found 

as the price United paid for the Ripon Property. 

29 R. 630:215.

30 There are approximately 400,000 bushels of grain in a 

100-car train. R. 773:12. Therefore, to ship 22 million 
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¶65 I agree with the majority opinion that on remand 

additional briefing or testimony may be necessary.31 

III. CONCLUSION

¶66 The majority opinion and the court of appeals both 

concluded that the $16.6 million exercise price for the Ripon 

Property that was set by the circuit court should be reviewed to 

determine whether it included personal property that was sold 

with the real estate under the APA. For the reasons set forth

above, I agree and therefore, I respectfully concur and join the 

majority opinion.

 

bushels of grain each year, United would have to ship 55, 100-

car trains per year, rather than the 12 it shipped in 2016. 

31 Majority op., ¶33. 
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