2015 WI 65 

SUPREME COURT OF WISCONSIN

CASE NO.: 2013AP1532 

COMPLETE TITLE: 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 

OPINION FILED: July 7, 2015 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: March 4, 2015 

SOURCE OF APPEAL: 

 COURT: Circuit 

 COUNTY: Brown 

 JUDGE: William M. Atkinson 

 

JUSTICES: 

 CONCURRED: ROGGENSACK, C. J. concurs (Opinion filed). 

 DISSENTED: 

 NOT PARTICIPATING: PROSSER, J. did not participate. 

 

ATTORNEYS: 

For the plaintiff-respondent-petitioner, briefs were 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 were 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 shall pay a 

broker's commission to Re/Max if Ash Park enters into an 

"enforceable contract" for the sale of the land. Ash Park 

entered into a contract for the sale of the land with Alexander 

& Bishop, Ltd. Whether Re/Max is entitled to a broker's 

commission turns on whether the purchase contract between Ash 

Park and Alexander & Bishop constitutes an "enforceable 

contract" within the meaning of the listing contract between Ash 

Park and Re/Max, even though Alexander & Bishop breached 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 Park, declaring 

that Ash Park owed no broker's commission to Re/Max. The 

circuit court ordered Re/Max's broker lien discharged from the 

property. 

¶4 The court of appeals reversed the circuit court's 

summary judgment and remanded the cause to the circuit court 

with instructions to determine and award Re/Max its broker's 

commission, prejudgment interest, costs, and reasonable 

attorney's fees. The court of appeals further instructed the 

circuit court to determine whether Re/Max's broker lien should 

be reinstated. 

¶5 This court granted review of the sole issue presented 

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 three 
No. 2013AP1532 

3 

hundred seventy-eight thousand dollars ($378,000) in 

commission under a real estate listing contract when 

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 appeals. 

We conclude that the purchase contract between Ash Park and 

Alexander & Bishop constitutes an "enforceable contract" within 

the meaning of the listing contract between Ash Park and Re/Max. 

Re/Max is therefore entitled to a broker's commission from Ash 

Park even though Alexander & Bishop breached the purchase 

contract and the sale was never consummated. 

I 

¶8 The facts are undisputed for purposes of this review. 

¶9 Ash Park wished to sell a parcel of vacant land 

located in the Village of Ashwaubenon in Brown County, 

Wisconsin. 

¶10 On March 12, 2007, Ash Park and Re/Max entered into a 

one-party listing contract. Ash Park and Re/Max used a standard 

form contract (titled "WB-3 VACANT LAND LISTING CONTRACT") 

approved by the Wisconsin Department of Regulation and 

Licensing. 

 

2 Because this court did not grant review of the broker lien 

issue, the court of appeals' decision on that issue still 

stands. Whether the broker lien should be reinstated must be 

determined by the circuit court on remand. 
No. 2013AP1532 

4 

¶11 The listing contract provided that the list price 

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 percent of the 

purchase price if, during the term of the listing, Ash Park 

"sells or accepts an offer which creates an enforceable contract 

for the sale of all or any part of the Property." 

¶12 During the term of the listing, Alexander & Bishop 

offered to purchase Ash Park's land for $6.3 million ($100,000 

more than the list price). Ash Park accepted the offer. 

¶13 Alexander & Bishop's offer to purchase Ash Park's land 

did not include a financing contingency. It did, however, 

include a lease contingency. The lease contingency provided 

that the "Offer is contingent upon the Buyer negotiating 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 contingency 

further provided that if Alexander & Bishop were "unable to 

negotiate a lease or leases," Alexander & Bishop could terminate 

the offer. 

¶14 Because Alexander & Bishop was unable to negotiate an 

acceptable lease within the specified timeframe, it exercised 

its right to terminate the offer. 

¶15 Later on, however, Ash Park and Alexander & Bishop 

signed an agreement to reinstate the offer. 

¶16 Alexander & Bishop did not exercise its right to 

terminate the reinstated offer. Alexander & Bishop's offer to 
No. 2013AP1532 

5 

purchase Ash Park's land ripened into a binding purchase 

contract on September 20, 2007. 

¶17 On October 9, 2007, Alexander & Bishop informed Ash 

Park that the party with whom it had been negotiating a lease 

was not interested in immediately leasing the property. 

Accordingly, Ash Park and Alexander & Bishop discussed potential 

modifications to the purchase contract. Their negotiations were 

unsuccessful. 

¶18 The closing of the sale, which had been scheduled 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 closing, 

Ash Park sued Alexander & Bishop, seeking specific performance 

of the purchase contract. Ash Park prevailed in the circuit 

court, in the court of appeals,3 and in this court.4

¶20 Despite the specific performance judgment against it, 

Alexander & Bishop failed to pay for or acquire the property. 

¶21 In December 2010, after protracted litigation and 

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 equivalent 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 sought to 

compel Alexander & Bishop to purchase the property.5

¶22 On January 12, 2011, prior to final adjudication 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 part of the 

Property" and thus that under the listing contract, Re/Max had 

earned a six-percent broker's commission. Re/Max sought to 

claim its commission, along with prejudgment interests, 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 Park's motion 

for summary judgment and filed its own motion for summary 

judgment. 

¶25 The circuit court granted Ash Park's motion for

summary judgment and ordered Re/Max's broker lien discharged 

from the property. The circuit court concluded that 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 settlement with 

Re/Max, and Re/Max does not assert that it is entitled to any 

portion of this settlement. Re/Max acknowledges that the 

listing contract grants Re/Max the right to six percent of the 

purchase price. Explicitly excluded from the purchase price are 

"holding costs." As explained above, the settlement 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 earned a 

broker's commission. 

¶26 The circuit court explained its reasoning as follows: 

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 in 

law," and maybe that would make sense because I found 

it was enforceable in law, that the case could proceed 

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 fact 

and that's why the contract between these parties 

required it actually be enforceable in fact. 

¶27 After the circuit court issued its decision, Ash 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 contract between Ash 

Park and Alexander & Bishop constitutes an "enforceable 

 

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 Investors to file 

a brief in this court but only on the issue the court had 

accepted for review. 
No. 2013AP1532 

8 

contract" within the meaning of the listing contract between Ash 

Park and Re/Max. The court of appeals reasoned as follows: 

We conclude the term "enforceable contract" is plain 

and unambiguous. Given the dictionary definition of 

"enforce" and the principle that an "enforceable 

contract" is one that provides a remedy for a breach, 

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 various 

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 conclusion that the 

purchase contract between Ash Park and Alexander & Bishop is 

enforceable. According to the court of appeals, this court's 

prior decision that specific performance was a permissible 

remedy for Alexander & Bishop's breach of the purchase 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 with 

Alexander & Bishop was unenforceable. "The law of the 

case doctrine is a 'longstanding rule that a decision 

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 later 

appeal.'" . . . . 

. . . 

 

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

9 

[T]he specific performance remedy Ash Park sought and 

received for Alexander & Bishop's breach in this case 

was available only if the parties had an enforceable 

contract. Based on the specific performance judgment 

Ash Park sought and received in this case, Ash Park

cannot now argue its contract with Alexander & Bishop 

was unenforceable.8

¶30 We granted Ash Park's petition for review of the court 

of appeals' decision, limiting our review to the question 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 methods 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 matter of law 

Re/Max is entitled to a broker's commission. This issue turns 

on whether the purchase contract between Ash Park and Alexander 

 

8 Id., ¶¶19-20 (citations omitted). 

9 Roehl Transport, Inc. v. Liberty Mut. Ins. Co., 2010 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 2011-12 version 

unless otherwise indicated. 
No. 2013AP1532 

10 

& Bishop constitutes an "enforceable contract" within the 

meaning of the listing contract between Ash Park and Re/Max. 

The interpretation of a contract presents a question of law that 

this court decides independently of the circuit court and court 

of appeals but benefiting from their analyses.11

III 

¶33 To decide whether Re/Max is entitled to a broker's 

commission under the listing contract between Ash Park and 

Re/Max, we must interpret the phrase "enforceable contract" in 

the listing contract. Thus, we begin by reviewing the 

principles of contract interpretation that govern our 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 Alexander & 

Bishop constitutes an "enforceable contract" within the meaning 

of the listing contract. Ash Park's arguments to the 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, ¶22, 348 

Wis. 2d 631, 833 N.W.2d 586; Ehlinger v. Hauser, 2010 WI 54, 

¶47, 325 Wis. 2d 287, 785 N.W.2d 328. 

12 Seitzinger v. Cmty. Health Network, 2004 WI 28, ¶22, 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 according 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, however, 

evidence extrinsic to the contract itself may be used to 

determine the parties' intent, and any remaining ambiguities 

will be construed against the drafter.17 "A contract provision 

is ambiguous if it is fairly susceptible of more than 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, 266 

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. Hostak, Henzl 

& Bichler, S.C., 217 Wis. 2d 493, 506, 577 N.W.2d 617 (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, Baptie & 

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 circumstances."20

Language in a business contract is construed in the manner in 

which it would be understood "by persons in the business to 

which the contract relates."21 Interpretations that give 

reasonable meaning to each provision in the contract are 

preferred over interpretations that render a portion 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 & Fire 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 cannot make a new 

contract for the parties, but can only enforce the contract to 

which the parties themselves have agreed, and if the contract 

contains unambiguous language, the parties are bound 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 the 

contract language at issue. 

B 

¶40 The section of the listing contract between Ash Park 

and Re/Max that discusses the seller's obligation to pay a 

broker's commission contains five clauses that delineate 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 an 

enforceable contract for the sale of all or any part 

of the Property; 

2) Seller grants an option to purchase all or any part 

of the Property which is subsequently exercised; 

3) Seller exchanges or enters into a binding exchange 

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 of 

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 it is in the 

public interest to accord individuals broad powers to order 

their affairs through legally enforceable agreements. In 

general, therefore, parties are free to make such agreements as 

they wish, and courts will enforce them without passing on their 

substance."). 
No. 2013AP1532 

14 

5) A purchaser is procured for the Property by Broker, 

by Seller, or by any other person, at the price and on 

substantially the same terms set forth in this Listing 

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 "procured" 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 meaning of the 

phrase. 

¶44 In everyday language, "enforceable" means capable 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 grants a remedy 
No. 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 for the 

contract's breach. 

¶46 This ordinary interpretation of the phrase 

"enforceable contract" comports with the phrase's legal meaning. 

"Enforceable contracts are those for which the law recognizes 

the parties' rights and protects those rights by providing a 

remedy for breach, usually either some measure of damages 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 contracts 

are those that, because of some valid defense . . . , lack the 

remedy of specific performance or damages in the event of 

 

25 "In most contract cases, what is sought is enforcement 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 it be 

specifically performed or, in the alternative, by enjoining its 

non-performance." Restatement (Second) of Contracts § 345, cmt. 

b (1981). See also 1 E. Allan Farnsworth, Farnsworth on 

Contracts § 1.1, at 4 (3d ed. 2004) (explaining that a contract 

is "a promise, or a set of promises, that the law will 

enforce"). 

26 1 Michael B. Apfeld et al., Contract Law in Wisconsin 

§ 1.22 (4th ed. 2013). 

27 Joseph M. Perillo, Calamari and Perillo on Contracts 

§ 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 of 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 estate business 

that is different from its ordinary and legal meaning. 

¶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 specific 

performance judgment against Alexander & Bishop that was upheld 

by the court of appeals30 and by this court.31

¶50 Because Ash Park was indisputably able to compel 

observance of the purchase contract it entered into with 

Alexander & Bishop by seeking a remedy (namely specific 

performance) for a breach, the purchase contract falls within 

the ordinary and legal meaning of the phrase "enforceable 

contract." Indeed, in upholding the specific performance 

 

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 those which have 

some legal consequences but which may not be enforced in an 

action for damages or specific performance in the face 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 made clear that 

the purchase contract between Ash Park and Alexander & Bishop is 

enforceable.32

¶51 In the instant case, Ash Park asks the court to

interpret the phrase "enforceable contract" in a manner 

inconsistent with the phrase's ordinary and legal meaning 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 "enforceable 

contract" within the meaning of the listing contract between Ash 

Park and Re/Max. It has already been enforced. 

C 

¶53 Ash Park sets forth two primary counterarguments: (1) 

because Alexander & Bishop was not compelled to satisfy the 

specific performance judgment against it, the purchase contract 

is, as a matter of fact, not enforceable; and (2) requiring Ash 

Park to pay a broker's commission when the sale to Alexander & 

Bishop was never consummated would be contrary to public policy. 

 

32 In upholding the specific performance judgment against 

Alexander & Bishop, this court distinguished Henrikson v. 

Henrikson, 143 Wis. 314, 127 N.W. 962 (1910), in which "there 

was no valid and enforceable contract to transfer land." Ash 

Park, 324 Wis. 2d 703, ¶44. The court explained that Henrikson 

was not controlling in the Ash Park case because Henrikson "does 

not address the remedies available to a seller when the buyer 

breaches an enforceable contract for the sale of land." 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 grounds this 

argument on an unconvincing interpretation of the phrase 

"enforceable contract" and on a comparison of the first 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 "enforceable 

contract" is a contract enforceable "in fact." Under this 

interpretation of the phrase, a contract is enforceable 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 this 

interpretation of the phrase, a contract is enforceable if a 

remedy is available for a breach. 

¶59 Ash Park contends that the former interpretation 

(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 reasonable 
No. 2013AP1532 

19 

seller. In Ash Park's view, a reasonable seller who signs a 

listing contract never intends to incur an obligation 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 listing 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 phrase 

"enforceable contract" to mean a contract that is enforceable 

"in law" would render the fifth clause of the commission section 

of the listing contract superfluous. 

¶62 The fifth clause of the commission section of the 

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 "enforceable 

contract" to mean a contract enforceable "in law," then no 

difference exists between the phrases "valid and binding 

contract" and "enforceable contract." To give meaning to both 

the first and fifth clauses of the commission section of the 

listing contract, Ash Park asserts that the court should 

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 "enforceable 

contract" is ambiguous confuses the issue of enforceability of a 

contract with the concept of satisfaction of a judgment. The 
No. 2013AP1532 

20 

enforceability of a contract turns on whether there is a remedy 

available for a breach, not on whether a judgment issued in 

response to a breach is satisfied. 

¶65 There is no distinction in the law or in ordinary 

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 land. 

¶66 We will not read words into the contract that the 

parties opted not to include. Rather, we apply contractual 

language as it is written. This court's role, after all, is 

"not to make [the] contract[] . . . but to determine what the 

parties contracted to do."33

¶67 Further, despite Ash Park's protestations, 

interpreting the phrase "enforceable contract" to mean a 

contract enforceable "in law" does not render the fifth clause 

of the commission section of the listing contract mere 

surplusage. 

¶68 The phrases "valid and binding" and "enforceable" have 

been interpreted in varied and sometimes overlapping 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 formation have 

been satisfied and there are no fundamental defenses 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 else. 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 "enforceable 

contract" within the listing contract——the issue raised in the 

petition for review——comports with the phrase's ordinary and 

legal meaning and does not render the "valid and binding" 

portion of the listing contract superfluous. We therefore 

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 of 

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 Park and 

Alexander & Bishop was not enforceable. 

(2) 

¶71 Ash Park's second primary counterargument to the 

determination of the court of appeals and this court that Re/Max 

is entitled to a commission is that requiring Ash Park to pay a 

commission when the sale to Alexander & Bishop was never 

consummated would be contrary to public policy. There are two 

components to this argument. 

¶72 First, Ash Park urges the court to recognize the 

practical consequences of requiring it to pay Re/Max's 

commission in the instant case. Ash Park did not profit from 

the purchase contract it entered into with Alexander & 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 contract, it would 

have retained a portion of the earnest money and would not be 

paying $378,000 out of pocket.38

 

37 Ash Park did not earn a profit by settling with Alexander 

& Bishop. As previously explained, the $1.5 million settlement 

Alexander & Bishop paid to Ash Park reflected Ash Park's costs 

for maintaining the property during the time the purchase 

contract was being litigated. 

38 The earnest money provision of the listing contract 

provides that if the sale "fails to close and the earnest money 

is disbursed to Seller, then . . . the earnest money shall be 

paid first to reimburse Broker for cash advances . . . and one 

half of the balance, but not in excess of the agreed 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 sellers face a 

Hobson's choice: try to enforce the contract as the law allows 

or abdicate these legal rights lest the realtor claim 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 effectuate a sale 

of the property by employing a broker to locate a buyer.39 Ash 

Park states: "Suddenly the realtor is no longer the servant of 

the seller; the seller becomes the servant of the realtor. 

Nothing in this contract discloses such a counterintuitive 

understanding." 

¶75 Ash Park's frustration is understandable. Ash Park 

has done its best to effectuate the sale of its land to 

Alexander & Bishop. Ash Park agrees that had Alexander & 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 not receive the 

benefit of its purchase contract. If Ash Park is required to 

pay a commission to Re/Max under these circumstances, what will 

it be paying for? In Ash Park's view, Re/Max procured "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 listing 

contract. Upon Re/Max's listing the property, Alexander & 

Bishop made an offer for more than the listing price and Ash 

Park accepted that offer, creating an enforceable contract for 

the sale of the property. Because an enforceable contract 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 contract 

language; it is also unfair to Re/Max, which expended efforts to 

locate a buyer. 

¶78 By asking the court to disregard the contract language 

to achieve what it views as a fairer result, Ash Park in effect 

asks us to relieve "a party to a freely negotiated contract of 

the burdens of a provision which becomes more onerous 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 reform them 

but [rather] to determine what the parties contracted to do." 

Marion v. Orson's Camera Ctrs., Inc., 29 Wis. 2d 339, 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 the 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 prepared 

and approved by Wisconsin's Real Estate Examining Board (REEB).42 

REEB-approved listing contracts can be modified; their terms are 

not set in stone. Existing provisions can be changed or deleted 

and additional provisions can be appended.43

¶81 Ash Park could have negotiated with Re/Max to modify 

the terms of the commission section of the listing contract by 

conditioning Re/Max's right to a commission on consummation of 

the sale. Indeed, one commentator has advised: "To avoid 

incurring a commission without a closing, the seller's lawyer 

should consider modifying the language in [the listing contract] 

so that the commission is not earned until the conveyance 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 upon the sale's 

consummation. 

 

42 Wis. Admin. Code § REEB 16.03 (May 2014) ("Approved 

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 broker is 

entitled to a commission if the broker identifies a buyer and 

the buyer and seller enter into an enforceable contract for the 

sale of the property, even if the sale fails to close.45

¶85 In Wauwatosa Realty Co. v. Paar, 274 Wis. 7, 79

N.W.2d 125 (1956), a buyer procured by the broker entered into a 

purchase contract with the seller. The buyer refused to 

purchase the property. The listing contract did not condition 

payment of the broker's commission on final consummation of the 

transaction. Accordingly, the Wauwatosa Realty court stated 

that the broker was entitled to its commission despite the 

buyer's default: "[T]he broker's right to his commission is not 

defeated by a subsequent default on the [buyer's] part unless 

 

45 Scott C. Minter & Debra Peterson Conrad, Wisconsin Real 

Estate Law 5-19 (2014); John L. Horwich et al., Real Estate 

Transactions System § 1.8c (5th ed. 2011). See also Winston v. 

Minkin, 63 Wis. 2d 46, 51, 216 N.W.2d 38 (1974); Wauwatosa 

Realty Co. v. Paar, 274 Wis. 7, 14-15, 79 N.W.2d 125 (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 will 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 (1979) (general 

rule that seller owes broker commission if seller enters 

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 commission if the 

property "is sold," which in the circuit court's view meant the 

sale had to be completed; this court remanded the cause to the 

circuit court to determine what the parties intended the words 

"is sold" to mean in the case at hand). 
No. 2013AP1532 

27 

[the seller's] promise to the broker is expressed to be 

conditioned upon such actual performance by the [buyer]. . . ."46

¶86 The court reached a similar conclusion in Kruger 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 contract. 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 court, 

determined that the broker was entitled to a commission 

notwithstanding the buyer's breach. The Kruger court explained: 

The courts are practically unanimous in holding that a 

broker employed to sell [] lands earns his commission, 

unless the contract [between the broker and seller]

contains a stipulation to the contrary, when a [buyer] 

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, 15-16, 

79 N.W.2d 125 (1956) (quoting Restatement (First) of 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 stipulated 

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 commission 

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 forth 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 buyer's valid 

written offer is accepted so as to constitute an enforceable 

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 persuade us 

to depart from the ordinary and legal meaning of the phrase 

"enforceable contract" in the listing contract between 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 financial 

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. 2d 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 contract between 

Ash Park and Alexander & Bishop constitutes an "enforceable 

contract" within the meaning of the listing contract between Ash 

Park and Re/Max. Re/Max is entitled to a broker's commission 

from Ash Park even though Alexander & Bishop breached the 

purchase contract and the sale was never consummated. 

¶94 Accordingly, we affirm the decision of the court of 

appeals. The cause is remanded to the circuit court for entry 

of summary judgment in favor of Re/Max; for a determination and 

award of Re/Max's prejudgment interest, costs, and attorney's 

fees; and for a determination of whether Re/Max's broker 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/Max Select, 

LLC's entitlement to a broker's commission turns as: "whether 

the purchase contract between Ash Park and Alexander & Bishop 

constitutes an 'enforceable contract' within the meaning of the 

listing contract."1 I would phrase the question to be decided as 

follows: whether the listing contract between Re/Max and Ash 

Park, LLC, two sophisticated business entities, demonstrates 

that they agreed that closing on a sale of the listed property 

was not required before the right to a realtor's commission 

arose. I answer that question, "yes." However, because I have 

grave concerns about the majority opinion being erroneously 

employed to shift the burden to investigate the financial 

ability of a proposed purchaser from the broker to an 

unsophisticated seller, I write in concurrence to the majority 

opinion. 

I. BACKGROUND 

¶97 The majority opinion fully sets out the facts that 

underlie the dispute before us. Therefore, I will not repeat 

them. 

II. DISCUSSION 

A. Standard of Review 

¶98 This review centers on interpreting and applying a 

single party listing contract for the sale of vacant 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. Anthony 

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 somewhat 

parallel, but different, tracks when the right to a commission 

is alleged to arise out of a real estate listing contract. One 

line of cases conditions the right to a commission on the broker 

procuring a purchaser who is "ready, willing, and able to 

purchase upon the terms specified by the owner in the brokerage 

contract." Grinde v. Chipman, 175 Wis. 376, 377, 185 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 cash 

in hand, or (2) if he is personally possessed of 

assets——which in part may consist of the property to 

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——or 

as much thereof as he is unable to supply personally——

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 part 

by the property to be purchased. 

Id. at 162 (internal quotation marks and citation omitted). 

¶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 commission. Stated 
No. 2013AP1532.pdr 

3 

otherwise, when a purchaser is unable to perform financially, 

the seller has a defense to payment of a commission. Id. at 

162-63. 

¶101 The other line of cases is cited in the majority 

opinion. Those cases generally conclude that the right to a 

commission turns on whether the realtor provided a party who 

entered into a binding contract to purchase the real estate. 

For example, in Wauwatosa Realty Co. v. Paar, 274 Wis. 7, 79 

N.W.2d 125 (1956), we upheld the right to a commission for the 

broker even though the sale of the real estate never 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 the 

principal and the customer. 

Id. at 14-15. 

¶102 The above quote from Wauwatosa Realty is interesting 

because we began our discussion in Wauwatosa Realty by saying 

that, "[t]he question involved on this appeal is whether the 

plaintiff real-estate broker procured a purchaser ready, 

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 financial 

ability to complete the purchase contract. 
No. 2013AP1532.pdr 

4 

¶103 In Kruger v. Wesner, 274 Wis. 40, 79 N.W.2d 354 

(1956), where no sale occurred, we concluded that the 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 no 

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 requires a 

purchaser to be financially "able" to complete the sale before a 

commission is due the broker. See, e.g., Chalik, 56 Wis. 2d at 

163. Yet, in Kruger, we gave no indication that we were intent 

on changing prior law. Rather, Kruger appears to be an 

extension of Wauwatosa Realty upon which Kruger says that it 

relies.2 Kruger, 274 Wis. at 44. 

¶105 In Winston v. Minkin, 63 Wis. 2d 46, 216 N.W.2d 38 

(1974), we set out the dispositive issue as, "[w]hether the 

plaintiff procured a buyer ready, willing and able to purchase 

upon the terms specified by the owner in the listing contract or 

acceptable to him." Id. at 49. However, once again, 

notwithstanding our statement of the issue, we reasoned 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, 79 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 the commission 

for procuring a purchaser is earned, even though the purchaser 

may later default." Id. at 51. Accordingly, we followed the 

change noted above in Kruger, even though we continued to give 

lip service to the "ready, willing and able" language 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 "reasonable 

opportunity to investigate" the purchaser's financial ability to 

proceed, and if the seller needed additional assurances 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 Kruger, 274 Wis. 

at 45. 

¶107 Imposing the responsibility to investigate the

financial ability of a proposed purchaser onto a sophisticated 

seller may have been a sufficient reason for this shift of 

responsibility from the broker to the seller. However, I have 

grave doubts that this shift in responsibility is fair to the 

unsophisticated seller of real estate, who signs a standard form 

listing contract believing he or she will pay any commission due 

under the listing contract from the proceeds of a sale 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 an 

enforceable contract for the sale of all or any part 

of the Property; 

. . . . 

5) A purchaser is procured for the Property by Broker, 

by Seller, or by any other person, at the price and on 

substantially the same terms set forth in this Listing 

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 the 

Seller and the purchaser or when a ready, willing and 

able purchaser submits a written offer at the price

and on substantially the terms specified in this 

Listing. A purchaser is ready, willing and able when 

the purchaser submitting the written offer has the 

ability to complete the purchaser's obligations under 

the written offer. 

(emphasis added). 

¶109 Re/Max asserts that pursuant to the listing contract, 

the Ash Park—Alexander & Bishop contract is an enforceable 

contract entitling it to a commission under conditions 1 and 5 

above, and that it has "procured" a purchaser because Ash Park 

and Alexander & Bishop entered into a binding contract for the 

purchase of the listed real estate. The listing contract's 
No. 2013AP1532.pdr 

7 

definition of "procuring," which includes providing a purchaser 

who is "ready, willing and able" to complete the sale is an 

alternative to, not an addition to, entering into an enforceable 

contract. Therefore, under the listing contract, the right to a 

commission ripens when an enforceable contract is entered into, 

even if the purchaser is financially unable to complete the 

purchase. In sum, the listing contract sets a condition 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 sales contract, 

we previously concluded that their contract is an enforceable 

contract. Ash Park, LLC v. Alexander & Bishop, Ltd., 2010 WI 

44, ¶96, 324 Wis. 2d 703, 783 N.W.2d 294. Accordingly, I have 

no trouble concluding that the same contract remains 

"enforceable" when we are interpreting the listing contract. 

However, I have concerns about having the enforceability of the 

purchase contract be the end of our discussion. 

¶111 Those concerns arise here because of the circuit 

court's finding that Alexander & Bishop was financially unable 
No. 2013AP1532.pdr 

8 

to perform,3 and because of representations that Ash Park settled 

its lawsuit against Alexander & Bishop because of Alexander & 

Bishop's insolvency.4 However, of greater concern to me is the 

unsophisticated seller of real estate who may not understand the 

import of the provisions of the WB-13 listing contract as it 

affects his or her obligation to pay a real estate commission. 

¶112 Here, Ash Park is a sophisticated business entity, 

represented by able counsel, with the ability and knowledge 

needed to investigate the financial wherewithal of Alexander & 

Bishop or to request modification of a listing contract to 

require closing on a sale before the right to a commission 

arises. That weighs in favor of affirming the court 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 inability 

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 to 

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., June 13, 

2011). 

4 Alexander & Bishop represented: "Ash Park and its

principal is aware that Alexander & Bishop has no liquid assets 

in which to specifically perform——that is why it accepted the 

settlement agreement which called for a $1.2 million dollar 

payment to be made by the way of a loan. [] It also 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 Appointment of a 

Receiver and in Support of Motion to Enforce Settlement 

Agreement at 6-7, Ash Park, LLC v. Alexander & Bishop, Ltd., No. 

07CV2832 (Brown Cnty. Cir. Ct., Feb. 14, 2011). 
No. 2013AP1532.pdr 

9 

¶113 However, because I have concerns for the residential 

homeowner who lists his or her property using a standard form 

listing contract, without the aid of an attorney, and is unaware 

that he or she may be incurring an obligation to pay a 

commission when no sale occurs, I write in concurrence to draw 

attention to the potential hardship our decision is capable of 

producing if it is erroneously applied in a different context to 

an unsophisticated seller of real estate. 

III. CONCLUSION 

¶114 Because the question to be decided occurs in the 

context of a listing contract between two sophisticated 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 right to a 

realtor's commission arose. However, I have grave concerns 

about the majority opinion being erroneously employed to shift 

the burden to investigate the financial ability of a proposed 

purchaser from the broker to an unsophisticated seller. 

Therefore, I write in concurrence to the majority opinion. 
No. 2013AP1532.pdr 

1