2015 WI 65



# S UPREME 

# C OURT OF 

# W ISCONSIN

C ASE N O .: 2013AP1532 C OMPLETE T ITLE : Ash Park, LLC,

Plaintiff-Respondent-Petitioner, v. Alexander & Bishop, Ltd., Defendant, Re/Max Select, LLC, Intervening-Defendant-Appellant, Ash Investors, LLC, Intervenor.

REVIEW OF A DECISION OF THE COURT OF APPEALS (Reported at 356 Wis. 2d 249, 853 N.W.2d 618)

(Ct. App. 2014 – Published) PDC No. 2014 WI App 87

O PINION F ILED : July 7, 2015 S UBMITTED ON B RIEFS : O RAL A RGUMENT : March 4, 2015

S OURCE OF A PPEAL : C OURT : Circuit C OUNTY : Brown J UDGE : William M. Atkinson

J USTICES : C ONCURRED : ROGGENSACK, C. J. concurs (Opinion filed). D ISSENTED : N OT P ARTICIPATING : PROSSER, J. did not participate.

A TTORNEYS : For the plaintiff-respondent-petitioner, briefs wer e filed by George Burnett and the Law Firm of Conway, Olejniczak & Jerry, S.C., Green Bay, and oral argument by George Burnett.

For the intervening-defendant-appellant, briefs wer e filed by Michael O. Marquette and Marquette Law-Attorneys, S.C., Green Bay, and oral argument by Michael O. Marquette

.
For the intervenor, there was a brief by Bridget M. Hubing and Reinhart Boerner Van Deuren, S.C., Waukesha, and oral argument by J. Bushnell Nielsen

.2

An amicus curiae brief was filed by Debra P. Conrad for the Wisconsin Realtors Association, Madison.2015 WI 65

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2013AP1532 (L.C. No. 2007CV2832)

STATE OF WISCONSIN : IN SUPREME COURT
Ash Park, LLC, Plaintiff-Respondent-Petitioner,

v. Alexander & Bishop, Ltd., Defendant, Re/Max Select, LLC,

Intervening-Defendant-Appellant, Ash Investors, LLC,

Intervenor. 

## FILED JUL 7, 2015

Diane M. Fremgen Clerk of Supreme Court

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

¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of a published decision of the court of appeals. 1 The sole question presented is whether Ash Park, LLC (the seller of a parcel of vacant land) is liable to pay a broker's commission to Re/Max Select, LLC (the broker for the land).

1 Ash Park, LLC v. Alexander & Bishop, Ltd., 2014 WI App 87, 356 Wis. 2d 249, 853 N.W.2d 618.No. 2013AP1532

2 ¶2 The one-party listing contract between Ash Park and Re/Max provides in relevant part that Ash Park shal l pay a broker's commission to Re/Max if Ash Park enters in to an "enforceable contract" for the sale of the land. A sh Park entered into a contract for the sale of the land wi th Alexander & Bishop, Ltd. Whether Re/Max is entitled to a bro ker's commission turns on whether the purchase contract b etween Ash Park and Alexander & Bishop constitutes an "enforce able contract" within the meaning of the listing contrac t between Ash Park and Re/Max, even though Alexander & Bishop bre ached and the
sale of the land was never consummated. ¶3 The Circuit Court for Brown County, William M. Atkinson, Judge, granted summary judgment to Ash Pa rk, declaring that Ash Park owed no broker's commission to Re/Max . The circuit court ordered Re/Max's broker lien discharg ed from the property. ¶4 The court of appeals reversed the circuit court' s summary judgment and remanded the cause to the circ uit court with instructions to determine and award Re/Max its broker's commission, prejudgment interest, costs, and reason able attorney's fees. The court of appeals further inst ructed the circuit court to determine whether Re/Max's broker lien should be reinstated. ¶5 This court granted review of the sole issue pres ented by Ash Park in its petition for review: Is a vacant land offer to purchase an "enforceable contract" so as to require a seller to pay threeNo. 2013AP1532

3 hundred seventy-eight thousand dollars ($378,000) i n commission under a real estate listing contract whe n the seller obtained a judicial order for specific performance, but the buyer (who the realtor found) lacked the funds to purchase and could not be compelled to honor that order? ¶6 We did not grant review of the issue of whether Re/Max's broker lien should be reinstated. 2 ¶7 We now affirm the decision of the court of appea ls. We conclude that the purchase contract between Ash Park and Alexander & Bishop constitutes an "enforceable cont ract" within the meaning of the listing contract between Ash Par k and Re/Max. Re/Max is therefore entitled to a broker's commissi on from Ash Park even though Alexander & Bishop breached the pu rchase
contract and the sale was never consummated.

I ¶8 The facts are undisputed for purposes of this re view. ¶9 Ash Park wished to sell a parcel of vacant land located in the Village of Ashwaubenon in Brown Coun ty, Wisconsin. ¶10 On March 12, 2007, Ash Park and Re/Max entered into a one-party listing contract. Ash Park and Re/Max us ed a standard form contract (titled "WB-3 VACANT LAND LISTING CON TRACT") approved by the Wisconsin Department of Regulation and Licensing.

2 Because this court did not grant review of the bro ker lien issue, the court of appeals' decision on that issue still stands. Whether the broker lien should be reinstat ed must be determined by the circuit court on remand.No. 2013AP1532

4 ¶11 The listing contract provided that the list pri ce would be $6.2 million and that the listing would be for Alexander & Bishop only. It further provided that Re/Max would be entitled to a broker's commission equal to six p ercent of the purchase price if, during the term of the listing, Ash Park "sells or accepts an offer which creates an enforce able contract for the sale of all or any part of the Property." ¶12 During the term of the listing, Alexander & Bis hop offered to purchase Ash Park's land for $6.3 millio n ($100,000 more than the list price). Ash Park accepted the o ffer. ¶13 Alexander & Bishop's offer to purchase Ash Park 's land did not include a financing contingency. It did, h owever, include a lease contingency. The lease contingency provided that the "Offer is contingent upon the Buyer negoti ating a lease [o]r leases for the subject property with terms and conditions acceptable to the Buyer . . . within [120] days of [the seller's] acceptance" of the offer. The lease cont ingency further provided that if Alexander & Bishop were "u nable to negotiate a lease or leases," Alexander & Bishop co uld terminate
the offer. ¶14 Because Alexander & Bishop was unable to negoti ate an acceptable lease within the specified timeframe, it exercised its right to terminate the offer. ¶15 Later on, however, Ash Park and Alexander & Bis hop signed an agreement to reinstate the offer. ¶16 Alexander & Bishop did not exercise its right t o terminate the reinstated offer. Alexander & Bishop 's offer toNo. 2013AP1532

5 purchase Ash Park's land ripened into a binding pur chase contract on September 20, 2007. ¶17 On October 9, 2007, Alexander & Bishop informed Ash Park that the party with whom it had been negotiati ng a lease was not interested in immediately leasing the prope rty. Accordingly, Ash Park and Alexander & Bishop discus sed potential modifications to the purchase contract. Their nego tiations were
unsuccessful. ¶18 The closing of the sale, which had been schedul ed for December 14, 2007, did not take place. Alexander & Bishop failed to purchase the property. ¶19 Shortly after the date that had been set for cl osing, Ash Park sued Alexander & Bishop, seeking specific performance of the purchase contract. Ash Park prevailed in th e circuit court, in the court of appeals, 3 and in this court. 4 ¶20 Despite the specific performance judgment again st it, Alexander & Bishop failed to pay for or acquire the property. ¶21 In December 2010, after protracted litigation a nd after Alexander & Bishop had threatened bankruptcy, Ash Park and Alexander & Bishop agreed to settle their dispute. Alexander & Bishop paid Ash Park $1.5 million. This sum was eq uivalent to Ash Park's holding costs, that is, the interest and other

3 Ash Park, LLC v. Alexander & Bishop, Ltd., 2009 WI App 71, 317 Wis. 2d 772, 767 N.W.2d 614.

4 Ash Park, LLC v. Alexander & Bishop, Ltd., 2010 WI 44, 324 Wis. 2d 703, 783 N.W.2d 294.No. 2013AP1532

6 charges Ash Park had paid while it unsuccessfully s ought to compel Alexander & Bishop to purchase the property. 5 ¶22 On January 12, 2011, prior to final adjudicatio n of the lawsuit between Ash Park and Alexander & Bishop , Re/Max filed a motion to intervene. ¶23 Re/Max argued that Ash Park had entered into an "enforceable contract for the sale of all or any pa rt of the Property" and thus that under the listing contract, Re/Max had earned a six-percent broker's commission. Re/Max s ought to claim its commission, along with prejudgment intere sts, costs, and attorney fees. Re/Max also sought to enforce a broker lien it had recorded on the property. ¶24 Ash Park asserted various affirmative defenses and moved for summary judgment. Re/Max opposed Ash Par k's motion for summary judgment and filed its own motion for s ummary judgment. ¶25 The circuit court granted Ash Park's motion for summary judgment and ordered Re/Max's broker lien d ischarged from the property. The circuit court concluded tha t the purchase contract between Ash Park and Alexander & Bishop does not constitute an "enforceable contract" within the meaning of

5 Ash Park did not share any portion of this settlem ent with Re/Max, and Re/Max does not assert that it is entit led to any portion of this settlement. Re/Max acknowledges th at the listing contract grants Re/Max the right to six per cent of the purchase price. Explicitly excluded from the purch ase price are "holding costs." As explained above, the settlemen t paid by Alexander & Bishop amounts to holding costs.No. 2013AP1532

7 the listing contract between Ash Park and Re/Max. Accordingly, the circuit court determined that Re/Max had not ea rned a broker's commission. ¶26 The circuit court explained its reasoning as fo llows: This contract is not enforceable. Now, perhaps we don't do a good enough job of defining "enforceable ." Maybe we should have a phrase called "enforceable i n law," and maybe that would make sense because I fou nd it was enforceable in law, that the case could proc eed through the court system, but it clearly wasn't enforceable in fact. If it was enforceable in fact , Alexander & Bishop would [have bought the land] and the realtor would have his commission. Everybody would end up happy. . . .

. . . . The reality of it is the realtor brought to these sellers a buyer who couldn't afford to buy the property. . . . [H]e couldn't get financing for it, he didn't have enough money in a bank account, he didn 't have a deep enough pocket to go to, he couldn't do it. In the end this contract was not enforceable in fac t and that's why the contract between these parties required it actually be enforceable in fact. ¶27 After the circuit court issued its decision, As h Park sold the land to Ash Investors, LLC. 6 ¶28 The court of appeals reversed the circuit court 's summary judgment, holding that the purchase contrac t between Ash Park and Alexander & Bishop constitutes an "enforce able

6 Ash Investors, the company that purchased Ash Park 's land after Ash Park settled its dispute with Alexander & Bishop, filed a motion to intervene (or, in the alternative , to file a non-party brief) in this court. The court granted Ash Investors' motion to intervene, permitting Ash Inve stors to file a brief in this court but only on the issue the cou rt had accepted for review.No. 2013AP1532

8 contract" within the meaning of the listing contrac t between Ash Park and Re/Max. The court of appeals reasoned as follows: We conclude the term "enforceable contract" is plai n and unambiguous. Given the dictionary definition o f "enforce" and the principle that an "enforceable contract" is one that provides a remedy for a breac h, it is clear that an "enforceable contract" is one where an individual can compel observance of the contract by seeking a remedy for a breach. In this case, the contract between Ash Park and Alexander & Bishop was enforceable——the contract recognized Ash Park's rights under the contract and provided vario us remedies for Ash Park based on Alexander & Bishop's breach. 7 ¶29 The court of appeals cited the "law of the case " doctrine as an additional rationale for its conclus ion that the purchase contract between Ash Park and Alexander & Bishop is enforceable. According to the court of appeals, th is court's prior decision that specific performance was a perm issible remedy for Alexander & Bishop's breach of the purch ase contract settled the issue of the contract's enforceability. The court of appeals explained its reasoning as follows: [W]e conclude the law of the case doctrine applies to prevent Ash Park from arguing the contract it had w ith Alexander & Bishop was unenforceable. "The law of the case doctrine is a 'longstanding rule that a decisi on on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on lat er appeal.'" . . . .

. . .

7 Ash Park, 356 Wis. 2d 249, ¶15.No. 2013AP1532

9 [T]he specific performance remedy Ash Park sought a nd received for Alexander & Bishop's breach in this ca se was available only if the parties had an enforceabl e contract. Based on the specific performance judgme nt Ash Park sought and received in this case, Ash Park cannot now argue its contract with Alexander & Bish op was unenforceable. 8 ¶30 We granted Ash Park's petition for review of th e court of appeals' decision, limiting our review to the qu estion of whether the purchase contract between Ash Park and Alexander & Bishop constitutes an "enforceable contract" under the listing contract between Ash Park and Re/Max, such that Re/ Max is entitled to a broker's commission.

II ¶31 This court reviews summary judgment decisions independently, applying the same standards and meth ods as the circuit court. 9 Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 10 ¶32 In the instant case, the parties do not dispute the facts. Rather, the parties dispute whether as a ma tter of law Re/Max is entitled to a broker's commission. This issue turns on whether the purchase contract between Ash Park a nd Alexander

8 Id., ¶¶19-20 (citations omitted).

9 Roehl Transport, Inc. v. Liberty Mut. Ins. Co., 20 10 WI 49, ¶25, 325 Wis. 2d 56, 784 N.W.2d 542.

10 Wis. Stat. § 802.08(2) (2011-12). All subsequent references to the Wisconsin Statutes are to the 201 1-12 version unless otherwise indicated.No. 2013AP1532

10 & Bishop constitutes an "enforceable contract" with in the meaning of the listing contract between Ash Park an d Re/Max. The interpretation of a contract presents a questio n of law that this court decides independently of the circuit cou rt and court of appeals but benefiting from their analyses. 11

III ¶33 To decide whether Re/Max is entitled to a broke r's commission under the listing contract between Ash P ark and Re/Max, we must interpret the phrase "enforceable c ontract" in the listing contract. Thus, we begin by reviewing the principles of contract interpretation that govern o ur analysis. We then apply those interpretive principles to the phrase "enforceable contract" in the listing contract. We conclude that the purchase contract between Ash Park and Ale xander & Bishop constitutes an "enforceable contract" within the meaning of the listing contract. Ash Park's arguments to t he contrary are not convincing.

A ¶34 The court's goal in interpreting a contract is to give effect to the parties' intentions. 12 However, "subjective intent

11 Tufail v. Midwest Hospitality, LLC, 2013 WI 62, ¶2 2, 348 Wis. 2d 631, 833 N.W.2d 586; Ehlinger v. Hauser, 20 10 WI 54, ¶47, 325 Wis. 2d 287, 785 N.W.2d 328.

12 Seitzinger v. Cmty. Health Network, 2004 WI 28, ¶2 2, 270 Wis. 2d 1, 676 N.W.2d 426.No. 2013AP1532

11 is not the be-all and end-all." 13 The language of the contract controls the court's interpretation. 14
¶35 When the terms of a contract are clear and unambiguous, we construe the contract's language ac cording to its literal meaning. 15 "We presume the parties' intent is evidenced by the words they choose, if those words are unambiguous." 16 ¶36 When the terms of a contract are ambiguous, how ever, evidence extrinsic to the contract itself may be us ed to determine the parties' intent, and any remaining am biguities will be construed against the drafter. 17 "A contract provision is ambiguous if it is fairly susceptible of more th an one construction." 18 ¶37 Contract language is construed according to its plain or ordinary meaning, 19 consistent with "what a reasonable person

13 Kernz v. J.L. French Corp., 2003 WI App 140, ¶9, 2 66 Wis. 2d 124, 667 N.W.2d 751.

14 Seitzinger, 270 Wis. 2d 1, ¶22.

15 Maryland Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶23, 326 Wis. 2d 300, 786 N.W.2d 15 (quoting Gorton v. H ostak, Henzl & Bichler, S.C., 217 Wis. 2d 493, 506, 577 N.W.2d 6 17 (1998)).

16 Kernz, 266 Wis. 2d 124, ¶9.

17 Maryland Arms, 326 Wis. 2d 300, ¶23.

18 Mgm't Computer Servs., Inc. v. Hawkins, Ash, Bapti e & Co., 206 Wis. 2d 158, 177, 557 N.W.2d 67 (1996).

19 Huml v. Vlazny, 2006 WI 87, ¶52, 293 Wis. 2d 169, 716 N.W.2d 807.No. 2013AP1532

12 would understand the words to mean under the circum stances." 20 Language in a business contract is construed in the manner in which it would be understood "by persons in the bus iness to which the contract relates." 21 Interpretations that give reasonable meaning to each provision in the contrac t are preferred over interpretations that render a portio n of the contract superfluous. 22 ¶38 Ultimately, the court's role "is not to make contracts or reform them but to determine what the parties
contracted to do." 23 "It is not the function of the court to relieve a party to a freely negotiated contract of the burdens

20 Seitzinger, 270 Wis. 2d 1, ¶22.

21 Columbia Propane, L.P. v. Wis. Gas Co., 2003 WI 38 , ¶12, 261 Wis. 2d 70, 661 N.W.2d 776.

22 Sonday v. Dave Kohel Agency, Inc., 2006 WI 92, ¶21 , 293 Wis. 2d 458, 718 N.W.2d 631.

23 Marion v. Orson's Camera Centers, Inc., 29 Wis. 2d 339, 345, 138 N.W.2d 733 (1966) (quoting Wis. Marine & F ire Ins. Co. Bank v. Wilkin, 95 Wis. 111, 115, 69 N.W. 354 (1896 )). See also 11 Richard A. Lord, Williston on Contracts § 32:2 (4th ed. 2002) ("Courts often recite that they cann ot make a new contract for the parties, but can only enforce the contract to which the parties themselves have agreed, and if th e contract contains unambiguous language, the parties are boun d by its plain meaning.").No. 2013AP1532

13 of a provision which becomes more onerous than had originally been anticipated." 24 ¶39 We now apply these interpretive principles to t he contract language at issue.

B ¶40 The section of the listing contract between Ash Park and Re/Max that discusses the seller's obligation t o pay a broker's commission contains five clauses that deli neate the circumstances under which Ash Park shall pay Re/Max a commission. It provides the following alternative conditions under which a commission shall be earned:

COMMSSION: Seller shall pay Broker's commission, which shall be earned if, during the term of this Listing : 1) Seller sells or accepts an offer which creates a n enforceable contract for the sale of all or any par t of the Property; 2) Seller grants an option to purchase all or any p art of the Property which is subsequently exercised; 3) Seller exchanges or enters into a binding exchan ge agreement on all or any part of the Property; 4) A transaction occurs which causes an effective change in ownership or control of all or any part o f the Property; or

24 25 Lord, supra note 23, § 1:1. See also E. Allan Farnsworth, 2 Farnsworth on Contracts § 5.1, at 1 ( 3rd ed. 2004) ("[F]reedom of contract rests on the premise that i t is in the public interest to accord individuals broad powers to order their affairs through legally enforceable agreement s. In general, therefore, parties are free to make such a greements as they wish, and courts will enforce them without pas sing on their substance.").No. 2013AP1532

14 5) A purchaser is procured for the Property by Brok er, by Seller, or by any other person, at the price and on substantially the same terms set forth in this List ing and in the standard provisions of the current WB-13 VACANT LAND OFFER TO PURCHASE, even if Seller does not accept this purchaser's offer. . . . (Emphasis added.) ¶41 The listing contract goes on to define "procure d" for purposes of the fifth clause set forth above: A purchaser is procured when a valid and binding contract of sale is entered into between the Seller and the purchaser or when a ready, willing and able purchaser submits a written offer at the price and on substantially the terms specified in this listing. (Emphasis added). ¶42 The listing contact does not define the phrase "enforceable contract," which appears in the first clause, and the parties dispute its meaning. ¶43 Our interpretation of the phrase "enforceable contract" begins, as it must, with the ordinary mea ning of the phrase. ¶44 In everyday language, "enforceable" means capab le of being enforced. A contract is "enforceable" if it can be
enforced. ¶45 A party seeks to "enforce" a contract by going to court to obtain a remedy for the contract's breach. A court "enforces" a contract by issuing a judgment that gr ants a remedyNo. 2013AP1532

15 for the contract's breach. 25 Consequently, a reasonable person would consider a contract "enforceable" so long as a party to the contract can go to court and obtain a remedy fo r the
contract's breach. ¶46 This ordinary interpretation of the phrase "enforceable contract" comports with the phrase's l egal meaning. "Enforceable contracts are those for which the law recognizes the parties' rights and protects those rights by pr oviding a remedy for breach, usually either some measure of d amages or specific performance." 26 Calamari and Perillo on Contracts explains that a contract is said to be enforceable "[w]hen a promisee is entitled to either a money judgment, an injunction or specific performance because of a breach [by the promisor]." 27
¶47 The converse is also true: "Unenforceable contr acts are those that, because of some valid defense . . . , lack the remedy of specific performance or damages in the ev ent of

25 "In most contract cases, what is sought is enforce ment of a contract. Enforcement usually takes the form of an award of a sum of money due under the contract or as damages. . . . A court may also enforce a promise by ordering that i t be specifically performed or, in the alternative, by e njoining its non-performance." Restatement (Second) of Contract s § 345, cmt. b (1981). See also 1 E. Allan Farnsworth, Farnswor th on Contracts § 1.1, at 4 (3d ed. 2004) (explaining tha t a contract is "a promise, or a set of promises, that the law w ill enforce").

26 1 Michael B. Apfeld et al., Contract Law in Wiscon sin § 1.22 (4th ed. 2013).

27 Joseph M. Perillo, Calamari and Perillo on Contrac ts § 1:8(b) (7th ed. 2014).No. 2013AP1532

16 breach . . . ." 28 Put more simply, "[a]n unenforceable contract is one for the breach of which neither the remedy o f damages nor the remedy of specific performance is available . . . ." 29 ¶48 Nothing in the record reveals that the phrase "enforceable contract" has a meaning in the real es tate business that is different from its ordinary and legal meani ng. ¶49 As we explained previously, Alexander & Bishop failed to purchase Ash Park's land as it had contracted to do, and Ash Park sought the remedy of specific performance for Alexander & Bishop's breach. The circuit court issued a specif ic performance judgment against Alexander & Bishop tha t was upheld by the court of appeals 30 and by this court. 31 ¶50 Because Ash Park was indisputably able to compe l observance of the purchase contract it entered into with Alexander & Bishop by seeking a remedy (namely spec ific performance) for a breach, the purchase contract fa lls within the ordinary and legal meaning of the phrase "enfor ceable contract." Indeed, in upholding the specific perfo rmance

28 1 Apfeld et al., supra note 26, § 1.22.

29 25 Lord, supra note 23, § 1:21. See also Perillo, supra note 27, § 1:8(b) ("Unenforceable contracts are tho se which have some legal consequences but which may not be enforc ed in an action for damages or specific performance in the f ace of certain defenses . . . ." (Emphasis added.)).

30 Ash Park, LLC v. Alexander & Bishop, Ltd., 2009 WI App 71, 317 Wis. 2d 772, 767 N.W.2d 614.

31 Ash Park, LLC v. Alexander & Bishop, Ltd., 2010 WI 44, 324 Wis. 2d 703, 783 N.W.2d 294.No. 2013AP1532

17 judgment against Alexander & Bishop, this court mad e clear that the purchase contract between Ash Park and Alexande r & Bishop is
enforceable. 32 ¶51 In the instant case, Ash Park asks the court to interpret the phrase "enforceable contract" in a ma nner inconsistent with the phrase's ordinary and legal m eaning and inconsistent with this court's previous decision to enforce the purchase contract between Ash Park and Alexander & Bishop. We decline to accept this invitation. ¶52 We conclude that the purchase contract between Ash Park and Alexander & Bishop constitutes an "enforce able contract" within the meaning of the listing contrac t between Ash Park and Re/Max. It has already been enforced.
C ¶53 Ash Park sets forth two primary counterargument s: (1) because Alexander & Bishop was not compelled to sat isfy the specific performance judgment against it, the purch ase contract is, as a matter of fact, not enforceable; and (2) r equiring Ash Park to pay a broker's commission when the sale to Alexander & Bishop was never consummated would be contrary to p ublic policy.

32 In upholding the specific performance judgment aga inst Alexander & Bishop, this court distinguished Henrik son v. Henrikson, 143 Wis. 314, 127 N.W. 962 (1910), in wh ich "there was no valid and enforceable contract to transfer l and." Ash Park, 324 Wis. 2d 703, ¶44. The court explained th at Henrikson was not controlling in the Ash Park case because He nrikson "does not address the remedies available to a seller when the buyer breaches an enforceable contract for the sale of la nd." Id., ¶44.No. 2013AP1532

18 ¶54 We address these counterarguments in turn. (1) ¶55 First, Ash Park contends that the court system' s inability to successfully compel Alexander & Bishop 's performance means the purchase contract between Ash Park and Alexander & Bishop is not enforceable. Ash Park gr ounds this argument on an unconvincing interpretation of the p hrase "enforceable contract" and on a comparison of the f irst and fifth clauses of the listing contract's commission section. ¶56 Relying on the reasoning of the circuit court, Ash Park argues that the phrase "enforceable contract" in the listing contract is ambiguous. ¶57 According to Ash Park, one meaning of "enforcea ble contract" is a contract enforceable "in fact." Und er this interpretation of the phrase, a contract is enforce able only if a breaching party can be forced to perform. ¶58 Another meaning of "enforceable contract," says Ash Park, is a contract enforceable "in law." Under th is interpretation of the phrase, a contract is enforce able if a remedy is available for a breach. ¶59 Ash Park contends that the former interpretatio n (under which a contract is "enforceable" only if it is enforceable "in fact") is the better one. Ash Park reminds the court that ambiguities in a contract are construed against the drafter (here, Re/Max). ¶60 Ash Park also contends that its preferred interpretation comports with the expectations of a reasonableNo. 2013AP1532

19 seller. In Ash Park's view, a reasonable seller wh o signs a listing contract never intends to incur an obligati on to pay a broker's commission when the listed property is not actually sold, that is, when the seller does not receive the purchase price from a buyer. A seller who enters into a lis ting contract does not intend to be in debt for a commission when no transfer of the property has taken place. ¶61 Next, Ash Park asserts that construing the phra se "enforceable contract" to mean a contract that is e nforceable "in law" would render the fifth clause of the commi ssion section of the listing contract superfluous. ¶62 The fifth clause of the commission section of t he listing contract entitles Re/Max to a commission if Ash Park enters a "valid and binding contract" for the sale of the land. According to Ash Park, if the court interprets "enf orceable contract" to mean a contract enforceable "in law," then no difference exists between the phrases "valid and bi nding contract" and "enforceable contract." To give mean ing to both the first and fifth clauses of the commission secti on of the listing contract, Ash Park asserts that the court s hould interpret the phrase "enforceable contract" to mean a contract enforceable "in fact." ¶63 We decline to adopt Ash Park's proffered interpretation of the phrase "enforceable contract. " ¶64 Ash Park's argument that the phrase "enforceabl e contract" is ambiguous confuses the issue of enforc eability of a contract with the concept of satisfaction of a judg ment. TheNo. 2013AP1532

20 enforceability of a contract turns on whether there is a remedy available for a breach, not on whether a judgment i ssued in response to a breach is satisfied. ¶65 There is no distinction in the law or in ordina ry language between the enforceability of a contract " in law" and "in fact." Nor does the listing contract draw such a distinction: The listing contract states that Ash Park shall pay Re/Max a broker's commission if Ash Park enters into an enforceable contract for the sale of the land, not an enforceable in fact contract for the sale of the la nd. ¶66 We will not read words into the contract that t he parties opted not to include. Rather, we apply con tractual language as it is written. This court's role, afte r all, is "not to make [the] contract[] . . . but to determin e what the parties contracted to do." 33 ¶67 Further, despite Ash Park's protestations, interpreting the phrase "enforceable contract" to m ean a contract enforceable "in law" does not render the f ifth clause of the commission section of the listing contract m ere surplusage. ¶68 The phrases "valid and binding" and "enforceabl e" have been interpreted in varied and sometimes overlappin g ways in

33 Tufail, 348 Wis. 2d 631, ¶29.No. 2013AP1532

21 contract law. 34 Nevertheless, the phrases are not synonymous in the legal literature. ¶69 As one commentator has explained, a contract is "valid and binding" if "all of the elements of contract fo rmation have been satisfied and there are no fundamental defense s to the enforcement of the contract, such as the statute of frauds." 35 Because the phrase "'valid and binding' relates to contract formation, [] 'enforceable' must mean something els e. Most lawyers believe that the term 'enforceable' implies the existence of a remedy for breach, such as an action at law for damages." 36 ¶70 In sum, our interpretation of the phrase "enfor ceable contract" within the listing contract——the issue ra ised in the petition for review——comports with the phrase's ord inary and legal meaning and does not render the "valid and bi nding" portion of the listing contract superfluous. We th erefore reject Ash Park's alternative interpretation of the contractual language and conclude that the failure of Ash Park and the courts to successfully compel Alexander & Bishop's performance

34 "Some authorities distinguish among the concepts o f legal, valid, binding, and enforceable." Gregory G . Gosfield, A Primer in Real Estate Options, 35 Real Prop. Prob. & Tr. J. 129, 137 n.10 (2000) (discussing the differences between these words).

35 Laurence G. Preble, The Remedies Opinion Revisited : A Primer for Real Estate Lawyers, 33 Real Prop. Prob. & Tr. J. 63, 68 (1998).

36 Id., 70-71.No. 2013AP1532

22 does not mean the purchase contract between Ash Par k and Alexander & Bishop was not enforceable. (2) ¶71 Ash Park's second primary counterargument to th e determination of the court of appeals and this cour t that Re/Max is entitled to a commission is that requiring Ash P ark to pay a commission when the sale to Alexander & Bishop was never consummated would be contrary to public policy. Th ere are two components to this argument. ¶72 First, Ash Park urges the court to recognize th e practical consequences of requiring it to pay Re/Ma x's commission in the instant case. Ash Park did not p rofit from the purchase contract it entered into with Alexande r & Bishop despite its attempts to enforce that contract, 37 and Ash Park will now pay $378,000 out of pocket to Re/Max as a commission. Had Ash Park declined to enforce the purchase contr act, it would have retained a portion of the earnest money and wo uld not be paying $378,000 out of pocket. 38

37 Ash Park did not earn a profit by settling with Al exander & Bishop. As previously explained, the $1.5 millio n settlement Alexander & Bishop paid to Ash Park reflected Ash P ark's costs for maintaining the property during the time the pu rchase contract was being litigated.

38 The earnest money provision of the listing contrac t provides that if the sale "fails to close and the e arnest money is disbursed to Seller, then . . . the earnest mone y shall be paid first to reimburse Broker for cash advances . . . and one half of the balance, but not in excess of the agree d commission, shall be paid to Broker as Broker's full commission . . . ."No. 2013AP1532

23 ¶73 Thus, Ash Park contends that "[t]he natural consequence of this decision is that innocent selle rs face a Hobson's choice: try to enforce the contract as the law allows or abdicate these legal rights lest the realtor cla im hundreds of thousands of dollars in commission." ¶74 Second, Ash Park contends that this court's interpretation of the phrase "enforceable contract" defies the purpose of the listing contract, which is to effect uate a sale of the property by employing a broker to locate a b uyer. 39 Ash Park states: "Suddenly the realtor is no longer the servant of the seller; the seller becomes the servant of the r ealtor. Nothing in this contract discloses such a counterin tuitive understanding." ¶75 Ash Park's frustration is understandable. Ash Park has done its best to effectuate the sale of its lan d to Alexander & Bishop. Ash Park agrees that had Alexa nder & Bishop paid for the property (as it was required by law to do), then Re/Max would be entitled to a broker's commission. But Alexander & Bishop did not pay, and Ash Park did no t receive the benefit of its purchase contract. If Ash Park is r equired to pay a commission to Re/Max under these circumstance s, what will it be paying for? In Ash Park's view, Re/Max procu red "a buyer

39 Harvey L. Temkin et al., Commercial Real Estate Transactions in Wisconsin, § 2.3 (2010) (explaining that under a listing contract, "a seller hires a broker to find a buyer").No. 2013AP1532

24 unable to perform" and thus "supplie[d] nothing of
value . . . ." ¶76 The result in the instant case does seem harsh to Ash Park. But the result would be harsh to Re/Max were we to hold in Ash Park's favor. ¶77 Re/Max did what it agreed to do under the listi ng contract. Upon Re/Max's listing the property, Alex ander & Bishop made an offer for more than the listing pric e and Ash Park accepted that offer, creating an enforceable c ontract for the sale of the property. Because an enforceable c ontract for the sale of the property was created, Re/Max earned a commission under the listing contract. Declining to order Ash Park to pay Re/Max its commission is not only contrary to the c ontract language; it is also unfair to Re/Max, which expend ed efforts to locate a buyer. ¶78 By asking the court to disregard the contract l anguage to achieve what it views as a fairer result, Ash Pa rk in effect asks us to relieve "a party to a freely negotiated contract of the burdens of a provision which becomes more onero us than had originally been anticipated." 40 As we explained previously, this is not the court's role. 41

40 25 Lord, supra note 23, § 1:1.

41 The court's role "is not to make contracts or refo rm them but [rather] to determine what the parties contract ed to do." Marion v. Orson's Camera Ctrs., Inc., 29 Wis. 2d 33 9, 345, 138 N.W.2d 733 (1966) (quoting Wis. Marine & Fire Ins. Co. Bank v. Wilkin, 95 Wis. 111, 115, 69 N.W. 354 (1897)).No. 2013AP1532

25 ¶79 Ash Park also overlooks the fact that it had th e power to condition Re/Max's right to receive a commission upon consummation of the sale. ¶80 Ash Park and Re/Max used the listing contract p repared and approved by Wisconsin's Real Estate Examining B oard (REEB). 42 REEB-approved listing contracts can be modified; th eir terms are not set in stone. Existing provisions can be chang ed or deleted and additional provisions can be appended. 43 ¶81 Ash Park could have negotiated with Re/Max to m odify the terms of the commission section of the listing contract by conditioning Re/Max's right to a commission on cons ummation of the sale. Indeed, one commentator has advised: "To avoid incurring a commission without a closing, the selle r's lawyer should consider modifying the language in [the list ing contract] so that the commission is not earned until the conv eyance of the property actually closes and title passes." 44 ¶82 This court cannot disregard contract terms that Ash Park belatedly decides are unacceptable. ¶83 Finally, Wisconsin case law demonstrates that a broker's commission is not ordinarily contingent up on the sale's consummation.

42 Wis. Admin. Code § REEB 16.03 (May 2014) ("Approve d forms").

43 Wis. Admin. Code § REEB 16.06 (May 2014) ("How to use prepared forms").

44 See Temkin et al., supra note 39, § 2.20.No. 2013AP1532

26 ¶84 This court has previously declared that a broke r is entitled to a commission if the broker identifies a buyer and the buyer and seller enter into an enforceable cont ract for the sale of the property, even if the sale fails to clo se. 45 ¶85 In Wauwatosa Realty Co. v. Paar, 274 Wis. 7, 79 N.W.2d 125 (1956), a buyer procured by the broker e ntered into a purchase contract with the seller. The buyer refus ed to purchase the property. The listing contract did no t condition payment of the broker's commission on final consumm ation of the transaction. Accordingly, the Wauwatosa Realty cou rt stated that the broker was entitled to its commission desp ite the buyer's default: "[T]he broker's right to his comm ission is not defeated by a subsequent default on the [buyer's] p art unless

45 Scott C. Minter & Debra Peterson Conrad, Wisconsin Real Estate Law 5-19 (2014); John L. Horwich et al., Rea l Estate Transactions System § 1.8c (5th ed. 2011). See als o Winston v. Minkin, 63 Wis. 2d 46, 51, 216 N.W.2d 38 (1974); Wa uwatosa Realty Co. v. Paar, 274 Wis. 7, 14-15, 79 N.W.2d 12 5 (1956); McDermott v. Mahoney, 115 N.W. 32, 36-37 (1908). See Minter & Conrad, supra, at 5-17. The listing contract can provide that the broker wi ll not earn a commission unless the sale closes. See, e.g ., Mansfield v. Smith, 88 Wis. 2d 575, 586-89, 277 N.W.2d 740 (1 979) (general rule that seller owes broker commission if seller e nters contract with buyer, even if buyer later defaults, was not applicable per a liquidated damages clause); Walter Kassuba, Inc. v. Bauch, 38 Wis. 2d 648, 158 N.W.2d 387 (1968 ) (listing contract provided for payment of a broker's commiss ion if the property "is sold," which in the circuit court's vi ew meant the sale had to be completed; this court remanded the c ause to the circuit court to determine what the parties intende d the words "is sold" to mean in the case at hand).No. 2013AP1532

27 [the seller's] promise to the broker is expressed t o be conditioned upon such actual performance by the [bu yer]. . . ." 46 ¶86 The court reached a similar conclusion in Krug er v. Wesner, 274 Wis. 40, 44, 79 N.W.2d 354 (1956). In Kruger, the contract between the seller and the broker provided that the broker would procure a buyer. The broker procured a buyer, and the buyer and seller entered into a purchase contra ct. The buyer breached the purchase contract. Because the sale was not consummated, the seller refused to pay the broker's commission. ¶87 The Kruger court, like the Wauwatosa Realty cou rt, determined that the broker was entitled to a commis sion notwithstanding the buyer's breach. The Kruger cou rt explained: The courts are practically unanimous in holding tha t a broker employed to sell [] lands earns his commissi on, unless the contract [between the broker and seller] contains a stipulation to the contrary, when a [buy er] and the [seller] enter into a valid and binding contract for the sale . . . of [the] lands. 47

46 Wauwatosa Realty Co. v. Paar, 274 Wis. 7, 13-15, 1 5-16, 79 N.W.2d 125 (1956) (quoting Restatement (First) o f Agency § 445 (1933)).

47 Kruger v. Wesner, 274 Wis. 40, 44, 79 N.W.2d 354 ( 1956). Kruger followed the reasoning of the Oregon Supreme Court in Oregon Home Builders v. Montgomery Investment Co., 184 P. 487, 492 (1919), which held as follows: [T]he literally overwhelming weight of authority is that, unless the [seller] and broker have stipulate d to the contrary, the broker has fully earned his commission when the [buyer] and [seller] enter into a valid and binding contract for the sale or exchange of lands, and the broker's right to recover a commissi on is not, in the absence of bad faith upon his part, defeated or even affected by the fact that it (continued)No. 2013AP1532

28 ¶88 Subsequent cases have repeated the rule set for th in Wauwatosa Realty and Kruger. 48 ¶89 With this precedent in mind, a commentator has written that it is settled law in Wisconsin "that if the bu yer's valid written offer is accepted so as to constitute an en forceable contract, then the owner must pay [the] commission even if the buyer later defaults." 49 ¶90 The result in the instant case comports with precedent. ¶91 In sum, Ash Park's counterarguments do not pers uade us to depart from the ordinary and legal meaning of th e phrase "enforceable contract" in the listing contract betw een Ash Park and Re/Max. Under the listing contract, a contract is "enforceable" if a remedy is available for a breach . Thus, to determine whether the purchase contract between Ash Park and Alexander & Bishop is an "enforceable contract," we need determine only whether a remedy is available for a breach.

subsequently develops that the [buyer] is unable to complete his contract to buy on account of financia l inability or is unable to complete the contract to exchange on account of inability to transfer a merchantable title.

48 See, e.g., Mansfield v. Smith, 88 Wis. 2d 575, 585 -87, 277 N.W.2d 740 (1979); Winston v. Minkin, 63 Wis. 2 d 46, 52, 216 N.W.2d 38 (1974). See also Hercules v. Robedeaux, Inc., 110 Wis. 2d 369, 374-76, 329 N.W.2d 240 (Ct. App. 1982).

49 Minter & Conrad, supra note 45, at 5-19.No. 2013AP1532

29 ¶92 A remedy is indisputably available for a breach of the purchase contract between Ash Park and Alexander & Bishop. Indeed, Ash Park has already obtained the remedy of specific performance for Alexander & Bishop's breach. ¶93 In response to the sole issue presented for our review, we therefore conclude that the purchase con tract between Ash Park and Alexander & Bishop constitutes an "enf orceable contract" within the meaning of the listing contrac t between Ash Park and Re/Max. Re/Max is entitled to a broker's commission from Ash Park even though Alexander & Bishop breach ed the purchase contract and the sale was never consummate d. ¶94 Accordingly, we affirm the decision of the cour t of appeals. The cause is remanded to the circuit cour t for entry of summary judgment in favor of Re/Max; for a deter mination and award of Re/Max's prejudgment interest, costs, and attorney's fees; and for a determination of whether Re/Max's b roker lien should be reinstated. By the Court. —The decision of the court of appeals is affirmed. ¶95 DAVID T. PROSSER, J., did not participate.No. 2013AP1532.pdr

1 ¶96 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). The majority opinion sets the question upon which Re/Ma x Select, LLC's entitlement to a broker's commission turns as : "whether the purchase contract between Ash Park and Alexande r & Bishop constitutes an 'enforceable contract' within the me aning of the listing contract." 1 I would phrase the question to be decided as follows: whether the listing contract between Re/M ax and Ash Park, LLC, two sophisticated business entities, dem onstrates that they agreed that closing on a sale of the list ed property was not required before the right to a realtor's co mmission arose. I answer that question, "yes." However, be cause I have grave concerns about the majority opinion being err oneously employed to shift the burden to investigate the fin ancial ability of a proposed purchaser from the broker to an unsophisticated seller, I write in concurrence to t he majority opinion.
I. BACKGROUND ¶97 The majority opinion fully sets out the facts t hat underlie the dispute before us. Therefore, I will not repeat them.
II. DISCUSSION A. Standard of Review ¶98 This review centers on interpreting and applyin g a single party listing contract for the sale of vacan t land. Interpretation of a written contract is a question of law that

1 Majority op., ¶32.No. 2013AP1532.pdr

2 we review independently of the court of appeals and the circuit court while benefitting from their discussions. An thony Gagliano & Co. v. Openfirst, LLC, 2014 WI 65, ¶32, 355 Wis. 2d 258, 850 N.W.2d 845. B. Listing Contract Principles ¶99 There are two lines of cases that run on somewh at parallel, but different, tracks when the right to a commission is alleged to arise out of a real estate listing co ntract. One line of cases conditions the right to a commission on the broker procuring a purchaser who is "ready, willing, and a ble to purchase upon the terms specified by the owner in t he brokerage contract." Grinde v. Chipman, 175 Wis. 376, 377, 1 85 N.W. 288 (1921). "Able" includes the purchaser's "financial ability to proceed." Peter M. Chalik & Assocs. v. Hermes, 56 Wis. 2d 151, 160, 201 N.W.2d 514 (1972). We have reasoned that:

Generally speaking, a purchaser is financially ready and able to buy: (1) If he has the needed ca sh in hand, or (2) if he is personally possessed of assets——which in part may consist of the property t o be purchased——and a credit rating which enable him with reasonable certainty to command the requisite funds at the required time, or (3) if he has definitely arranged to raise the necessary money——o r as much thereof as he is unable to supply personall y—— by obtaining a binding commitment for a loan to him for that purpose by a financially able third party, irrespective of whether such loan be secured in par t by the property to be purchased. Id. at 162 (internal quotation marks and citation o mitted). ¶100 Therefore, not just any purchaser who signs an offer to purchase on terms acceptable to the seller will fulfill the criteria necessary for a broker to earn a commissio n. StatedNo. 2013AP1532.pdr

3 otherwise, when a purchaser is unable to perform fi nancially, the seller has a defense to payment of a commission . Id. at 162-63. ¶101 The other line of cases is cited in the majori ty opinion. Those cases generally conclude that the r ight to a commission turns on whether the realtor provided a party who entered into a binding contract to purchase the rea l estate. For example, in Wauwatosa Realty Co. v. Paar, 274 Wis. 7, 79 N.W.2d 125 (1956), we upheld the right to a commiss ion for the broker even though the sale of the real estate neve r closed. We
reasoned that:

The right of a broker to compensation accrues on completion of negotiations and on a meeting of the minds of the principal and the customer procured by the broker; but, unless provided otherwise in the contract of employment, it is not dependent on the final consummation of the transaction or the performance of the agreement entered into between t he principal and the customer. Id. at 14-15. ¶102 The above quote from Wauwatosa Realty is inter esting because we began our discussion in Wauwatosa Realty by saying that, "[t]he question involved on this appeal is wh ether the plaintiff real-estate broker procured a purchaser r eady, willing, and able to purchase the defendants' real estate pursuant to the terms of its listing contract so as to entitle the plaintiff to a broker's commission." Id. at 10 . However, we never assessed whether the purchaser had the fin ancial ability to complete the purchase contract.No. 2013AP1532.pdr

4 ¶103 In Kruger v. Wesner, 274 Wis. 40, 79 N.W.2d 35 4 (1956), where no sale occurred, we concluded that t he realtor was due a commission, and we opined that:

It may be generally stated that when a realestate broker procures a purchaser who is accepted by the owner, and a valid contract is drawn up between them, the commission for finding such purchaser is earned, although the purchaser later defaults for n o known reason . . .; or because the purchaser deliberately refuses to consummate the contract . . .; or because of financial inability of purchaser to comply with the contract. Id. at 44 (emphasis added). ¶104 The emphasized part of the above quote is a significant departure from the line of cases that r equires a purchaser to be financially "able" to complete the sale before a commission is due the broker. See, e.g., Chalik, 5 6 Wis. 2d at 163. Yet, in Kruger, we gave no indication that we were intent on changing prior law. Rather, Kruger appears to b e an extension of Wauwatosa Realty upon which Kruger say s that it relies. 2 Kruger, 274 Wis. at 44. ¶105 In Winston v. Minkin, 63 Wis. 2d 46, 216 N.W.2 d 38 (1974), we set out the dispositive issue as, "[w]he ther the plaintiff procured a buyer ready, willing and able to purchase upon the terms specified by the owner in the listin g contract or acceptable to him." Id. at 49. However, once agai n, notwithstanding our statement of the issue, we reas oned that

2 I note that Justice Steinle wrote both the opinion in Wauwatosa Realty Co. v. Paar, 274 Wis. 7, 79 N.W.2d 125 (1956) and the opinion in Kruger v. Wesner, 274 Wis. 40, 7 9 N.W.2d 354 (1956).No. 2013AP1532.pdr

5 "when a real estate broker procures a purchaser and a valid and enforceable contract is entered into between them t he commission for procuring a purchaser is earned, even though th e purchaser may later default." Id. at 51. Accordingly, we fo llowed the change noted above in Kruger, even though we contin ued to give lip service to the "ready, willing and able" langua ge of the earlier cases. Stated otherwise, Winston continued to shift the responsibility to investigate the financial ability of the proposed purchaser from the broker to the seller. ¶106 Why did we make this change? It appears that in Kruger, we concluded that the seller had a "reasona ble opportunity to investigate" the purchaser's financi al ability to proceed, and if the seller needed additional assura nces of the purchaser being "able" to close on the sale, it was the seller's obligation to obtain whatever assurances he needed before entering into a binding contract with him. See Kru ger, 274 Wis.
at 45. ¶107 Imposing the responsibility to investigate the financial ability of a proposed purchaser onto a so phisticated seller may have been a sufficient reason for this s hift of responsibility from the broker to the seller. Howe ver, I have grave doubts that this shift in responsibility is f air to the unsophisticated seller of real estate, who signs a standard form listing contract believing he or she will pay any c ommission due under the listing contract from the proceeds of a s ale that the broker facilitates.No. 2013AP1532.pdr

6 C. Re/Max–Ash Park Listing Contract ¶108 Re/Max's claim comes from the listing contract that Ash Park signed. In regard to Re/Max's right to a commission, the listing contract provides in relevant part: COMMISSION: Seller shall pay Broker's commission, which shall be earned if, during the term of this Listing: 1) Seller sells or accepts an offer which creates a n enforceable contract for the sale of all or any par t of the Property;

. . . . 5) A purchaser is procured for the Property by Brok er, by Seller, or by any other person, at the price and on substantially the same terms set forth in this List ing and in the standard provisions of the current WB-13 VACANT LAND OFFER TO PURCHASE, even if Seller does not accept this purchaser's offer.

. . . . PROCURE: A purchaser is procured when a valid and binding contract of sale is entered into between th e Seller and the purchaser or when a ready, willing a nd able purchaser submits a written offer at the price and on substantially the terms specified in this Listing. A purchaser is ready, willing and able wh en the purchaser submitting the written offer has the ability to complete the purchaser's obligations und er the written offer. (emphasis added). ¶109 Re/Max asserts that pursuant to the listing co ntract, the Ash Park—Alexander & Bishop contract is an enfo rceable contract entitling it to a commission under conditi ons 1 and 5 above, and that it has "procured" a purchaser becau se Ash Park and Alexander & Bishop entered into a binding contr act for the purchase of the listed real estate. The listing co ntract'sNo. 2013AP1532.pdr

7 definition of "procuring," which includes providing a purchaser who is "ready, willing and able" to complete the sa le is an alternative to, not an addition to, entering into a n enforceable contract. Therefore, under the listing contract, t he right to a commission ripens when an enforceable contract is e ntered into, even if the purchaser is financially unable to comp lete the purchase. In sum, the listing contract sets a cond ition for earning a commission as follows: whether Ash Park and Alexander & Bishop entered into an enforceable contract. ¶110 By our decision affirming an order of specific performance of the Ash Park-Alexander & Bishop sale s contract, we previously concluded that their contract is an e nforceable contract. Ash Park, LLC v. Alexander & Bishop, Ltd ., 2010 WI 44, ¶96, 324 Wis. 2d 703, 783 N.W.2d 294. Accordin gly, I have no trouble concluding that the same contract remain s "enforceable" when we are interpreting the listing contract. However, I have concerns about having the enforceab ility of the purchase contract be the end of our discussion. ¶111 Those concerns arise here because of the circu it court's finding that Alexander & Bishop was financi ally unableNo. 2013AP1532.pdr

8 to perform, 3 and because of representations that Ash Park settl ed its lawsuit against Alexander & Bishop because of A lexander & Bishop's insolvency. 4 However, of greater concern to me is the unsophisticated seller of real estate who may not u nderstand the import of the provisions of the WB-13 listing contr act as it affects his or her obligation to pay a real estate commission. ¶112 Here, Ash Park is a sophisticated business ent ity, represented by able counsel, with the ability and k nowledge needed to investigate the financial wherewithal of Alexander & Bishop or to request modification of a listing cont ract to require closing on a sale before the right to a com mission arises. That weighs in favor of affirming the cour t of appeals.

3 "The reality of it is the realtor brought to these sellers a buyer who couldn't afford to buy the property. And in the end it was the buyer's inabil ity to be able to buy the property, he couldn't get financing for it, he didn't have enough money in a bank account, he didn't have a deep enough pocket t o go to, he couldn't do it." Transcript of Motion Hearing at 14, Ash Park, LLC v . Alexander & Bishop, Ltd., No. 07CV2832 (Brown Cnty. Cir. Ct., J une 13, 2011).

4 Alexander & Bishop represented: "Ash Park and its principal is aware that Alexander & Bishop has no l iquid assets in which to specifically perform——that is why it ac cepted the settlement agreement which called for a $1.2 millio n dollar payment to be made by the way of a loan. [] It al so received numerous letters from Banks demonstrating that they would not be willing to loan money to Alexander & Bishop to buy the property." Brief in Opposition of Motions for Contempt and App ointment of a Receiver and in Support of Motion to Enforce Settle ment Agreement at 6-7, Ash Park, LLC v. Alexander & Bish op, Ltd., No. 07CV2832 (Brown Cnty. Cir. Ct., Feb. 14, 2011).No. 2013AP1532.pdr

9 ¶113 However, because I have concerns for the resid ential homeowner who lists his or her property using a sta ndard form listing contract, without the aid of an attorney, a nd is unaware that he or she may be incurring an obligation to pa y a commission when no sale occurs, I write in concurre nce to draw attention to the potential hardship our decision is capable of producing if it is erroneously applied in a differe nt context to an unsophisticated seller of real estate.
III. CONCLUSION ¶114 Because the question to be decided occurs in t he context of a listing contract between two sophistic ated business entities, Re/Max and Ash Park, I conclude that the listing contract demonstrates that they agreed that closing on a sale of the listed property was not required before the rig ht to a realtor's commission arose. However, I have grave concerns about the majority opinion being erroneously employ ed to shift the burden to investigate the financial ability of a proposed purchaser from the broker to an unsophisticated sel ler. Therefore, I write in concurrence to the majority o pinion.No. 2013AP1532.pdr

1