2021 WI App 26

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2020AP1179

Complete Title of Case: 

FRIENDS OF MAPLE GROVE, INC., A WISCONSIN CORPORATION, DR.

ANGELA SERVI, INDIVIDUALLY AS A MEMBER OF THE MAPLE GROVE 

GOVERNANCE BOARD, AN UNINCORPORATED ASSOCIATION, TRINA 

LUTZKE, INDIVIDUALLY AS A MEMBER OF THE MAPLE GROVE 

GOVERNANCE BOARD, AN UNINCORPORATED ASSOCIATION, ANNETTE 

NESKE, INDIVIDUALLY AS A MEMBER OF THE MAPLE GROVE 

GOVERNANCE BOARD, AN UNINCORPORATED ASSOCIATION, STEVIE 

KLOCKZIEM, INDIVIDUALLY AS A MEMBER OF THE MAPLE GROVE 

GOVERNANCE BOARD, AN UNINCORPORATED ASSOCIATION AND 

KATHRYN HENRICHS, INDIVIDUALLY AS A MEMBER OF THE MAPLE 

GROVE GOVERNANCE BOARD, AN UNINCORPORATED ASSOCIATION,

 PLAINTIFFS-RESPONDENTS,

 V.

MERRILL AREA COMMON PUBLIC SCHOOL DISTRICT,

 DEFENDANT-APPELLANT.

Opinion Filed: March 9, 2021

Submitted on Briefs: January 27, 2021

Oral Argument: 

JUDGES: Stark, P.J., Hruz and Seidl, JJ.

Concurred:

Dissented:
2

Appellant

ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the 

briefs of Sarah A. Zylstra, Tess O’Brien-Heinzen and Tanner 

Jean-Louis of Boardman & Clark LLP, Madison. 

Respondent

ATTORNEYS: On behalf of the plaintiffs-respondents, the cause was submitted on the 

brief of David C. Moore of Nowlan & Mouat LLP, Janesville. 
2021 WI App 26

COURT OF APPEALS

DECISION

DATED AND FILED

March 9, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2020AP1179 Cir. Ct. No. 2020CV150

STATE OF WISCONSIN IN COURT OF APPEALS

FRIENDS OF MAPLE GROVE, INC., A WISCONSIN CORPORATION,

DR. ANGELA SERVI, INDIVIDUALLY AS A MEMBER OF THE MAPLE GROVE 

GOVERNANCE BOARD, AN UNINCORPORATED ASSOCIATION, TRINA

LUTZKE, INDIVIDUALLY AS A MEMBER OF THE MAPLE GROVE 

GOVERNANCE BOARD, AN UNINCORPORATED ASSOCIATION, ANNETTE 

NESKE, INDIVIDUALLY AS A MEMBER OF THE MAPLE GROVE 

GOVERNANCE BOARD, AN UNINCORPORATED ASSOCIATION, STEVIE 

KLOCKZIEM, INDIVIDUALLY AS A MEMBER OF THE MAPLE GROVE 

GOVERNANCE BOARD, AN UNINCORPORATED ASSOCIATION AND 

KATHRYN HENRICHS, INDIVIDUALLY AS A MEMBER OF THE MAPLE 

GROVE GOVERNANCE BOARD, AN UNINCORPORATED ASSOCIATION,

 PLAINTIFFS-RESPONDENTS,

 V.

MERRILL AREA COMMON PUBLIC SCHOOL DISTRICT,

 DEFENDANT-APPELLANT.
No. 2020AP1179

2

APPEAL from an order of the circuit court for Marathon County: 

MICHAEL K. MORAN, Judge. Affirmed in part; reversed in part and cause 

remanded for further proceedings. 

Before Stark, P.J., Hruz and Seidl, JJ. 

¶1 STARK, P.J. This appeal involves a dispute regarding Maple Grove 

Charter School (“Maple Grove”), a public charter school in the Merrill Area 

Common Public School District (“the District”). In January 2020, the District sent 

a notice of default to the Maple Grove Governance Board (“the Governance 

Board”), asserting that the Governance Board had defaulted on various obligations 

set forth in its contract with the District. Friends of Maple Grove, Inc., a Wisconsin 

nonstock corporation whose board of directors is comprised of the same individuals 

who are the members of the Governance Board, then sued the District, seeking a 

declaration that the events of default alleged in the District’s notice were not 

sufficient to permit the District to terminate the contract. Friends of Maple Grove 

also sought an injunction preventing the District from doing so. The individual 

members of the Governance Board were later joined as plaintiffs, and the circuit 

court ultimately granted the plaintiffs’ requested relief.

¶2 The District now appeals, arguing: (1) the Governance Board lacked 

the authority to sue the District; and (2) the circuit court erred by determining that 

the Governance Board had not defaulted on its contractual obligations. We reject 

the District’s argument that the Governance Board could not sue the District. We 

also conclude the court properly determined that the Governance Board did not 

default on its contractual obligations regarding academic performance and the use 

of an innovative educational program. We therefore affirm the court’s order in part.
No. 2020AP1179

3

¶3 We conclude, however, that the circuit court applied the wrong legal 

standard when determining whether the Governance Board defaulted under the 

contract provisions regarding enrollment. The contract provided that an event of 

default occurred if Maple Grove had “insufficient enrollment to successfully operate 

the Charter School as determined by the District.” (Emphasis added.) This 

provision granted the District sole discretion to determine what level of enrollment 

was insufficient for Maple Grove to operate successfully. The only limitation on 

the District’s exercise of discretion was that it was required to act reasonably and 

with a proper motive. See Interim Health Care of N. Ill., Inc. v. Interim Health 

Care, Inc., 225 F.3d 876, 884 (7th Cir. 2000).

¶4 The circuit court therefore erred by substituting its discretion for that 

of the District when it determined that Maple Grove’s enrollment was sufficient for 

successful operation. Accordingly, we reverse the court’s order in part, to the extent 

the court concluded the Governance Board did not default with respect to 

enrollment. We remand for the court to reassess that issue using the proper legal 

standard—i.e., whether the District acted reasonably and with a proper motive when 

it determined that Maple Grove’s enrollment was insufficient.

BACKGROUND

¶5 In January 2017, the Governance Board entered into a charter school 

contract (“the contract”) with the District pertaining to Maple Grove. The contract 

had a five-year term, which began on July 1, 2017, and ended on June 30, 2022.

¶6 Under the contract, the District authorized the Governance Board to 

operate Maple Grove as an instrumentality charter school within the District. As 

such, the District employs all personnel who work at Maple Grove, including the 
No. 2020AP1179

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principal and teachers. See WIS. STAT. § 118.40(7)(a) (2017-18).1 Under the 

parties’ contract, the District funds Maple Grove through its allocated state aid. The 

District also provides Maple Grove with transportation, food services, and 

administrative services, which include purchasing, accounts payable, accounting, 

bookkeeping, risk management, auditing, cash management, payroll, benefits 

administration, pupil services, recordkeeping, reporting, building and grounds 

maintenance, and student testing.

¶7 Several other provisions of the parties’ contract are relevant to the 

issues raised in this appeal. First, § 4 of the contract provides that Maple Grove will 

“enroll students, with a targeted enrollment of a maximum of 100 students in grades 

Kindergarten through 5th grade.” Section 4 also states that Maple Grove’s 

“Educational Program” will meet students’ needs “through standards-based 

integrated instruction and classes with multi-aged project based classes with 

exploratory learning and personal learning plans serving as the learning tools 

through which all subject standards are taught.” Section 4 continues:

The innovative and research based Project Based Learning 

model used by [Maple Grove] will be based on both clearly 

defined learning targets and broad, encompassing questions, 

or essential questions to guide learning. These essential 

questions, based upon major science, design, systems, 

literacy, and social studies themes related to the individual 

projects, will direct the focus of all core subjects using 

student passions and interests as an anchor for learning. The 

Project Based Learning focused, non-sectarian model, uses 

the school’s surroundings and community as a framework 

and context for student learning. Wisconsin’s common core 

curriculum standards in academics will be addressed in the 

integrated projects. Students will actively participate 

regularly in community experiences that will involve 

observing current events, collecting data, testing and 

evaluating hypothesis [sic], and drawing conclusions. The 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.
No. 2020AP1179

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content area instruction the students receive at [Maple 

Grove] will be fluid and connected to the essential questions 

of math, literacy, systems, design, community, science, and 

social studies.

Section 4 also provides that the “Educational Program” described therein “shall be 

the primary method used to attain the educational goals established by Wis. Stats. 

§ 118.01.”

¶8 Next, § 5 of the contract—entitled “Goals and Methods of Measuring 

and Reporting Student Progress”—states that “[t]he following goals and objectives 

shall be bench marks which [Maple Grove] shall aspire to obtain ....” One of the 

listed goals—entitled “Increase Students[’] Ability to Direct Their Own 

Learning”—provides: “Objective: By the end of the first academic year (2017-

2018) one hundred percent (100%) of students will have a Personalized Learning 

Plan.” Another of the listed goals—entitled “Increase Student Achievement”—

states:

i. Objective: the 2017-2018 school year will be the 

benchmark year. In following years eighty percent (80%) of 

[Maple Grove] students will score at or above the national 

average in reading on the Measures of Academic Progress 

test, beginning Spring of 2019. The same percentage will 

increase their proficiency on the same assessment when 

compared to their individual scores from the previous Fall, 

beginning in Spring 2018. 

ii. The 2017-2018 school year will be the benchmark year. 

In the following years eighty percent (80%) of 

[Maple Grove] students will score at or above the national 

average in mathematics on the MAP test, beginning spring 

of 2019. The same percentage will increase their proficiency 

on the same assessment when compared to their individual 

scores from the previous fall, beginning in Spring 2019.
No. 2020AP1179

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¶9 Finally, § 27 of the contract—entitled “Termination by District”—

provides that the District may terminate the contract if it “finds that any of the 

following Events of Default have occurred”:

(1) The pupils enrolled in [Maple Grove] have failed to 

make sufficient progress toward attaining the educational 

goals under s. 118.01, Wisconsin Statutes, have failed to 

achieve standards under Wisconsin’s Accountability Index, 

as determined by the State of Wisconsin for 3 consecutive 

years, or have failed to make progress as set forth in 

Section 5 of this Contract for 3 consecutive years;

 ....

(6) The Governance Board defaults in any of the terms, 

conditions, promises or representations contained in or 

incorporated into this Contract;

 ....

(8) At the close of the enrollment period, [Maple Grove] has 

insufficient enrollment to successfully operate the Charter 

School as determined by the District.

¶10 Section 27 then sets forth procedures that the District must follow in 

order to terminate the contract. As relevant here, if the District determines that a 

nonemergency event of default has occurred, it “shall advise [Maple Grove] in 

writing of the pertinent occurrence and shall specify a reasonable period of time 

(though in no instance less than 30 days) within which [Maple Grove] shall cure or 

otherwise remedy the specified Event(s) of Default to the reasonable satisfaction of 

the Superintendent.” If the default is not timely cured, the District may terminate 

the contract “by written notice delivered within 10 days after expiration of the 

specified period.”

¶11 On January 20, 2020, the District sent the Governance Board a 

“Notice of Events of Default.” The notice alleged that three events of default had 

occurred under the parties’ contract. First, the notice asserted that Maple Grove’s 
No. 2020AP1179

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students had “failed to make [academic] progress pursuant to Section 5 of the 

Contract for 3 consecutive years.” More specifically, the notice alleged that the 

“percentage of students at or above the national norm from fall 2017 to spring 2019 

failed to increase consistently over those three years, and decreased in many 

instances.”

¶12 Second, the notice of default alleged that the Governance Board “is 

not implementing the Educational Program of [Maple Grove] as promised and 

represented to the District in the Contract.” The notice further alleged that Maple 

Grove’s educational program “does not reflect the innovative program ... most 

recently authorized in 2017 (Exploratory Learning)” and that the educational 

program “has not been clearly defined by the Governance Board and the innovative 

program described in the Contract has not been implemented.” In addition, the 

notice asserted that the Governance Board had “unilaterally” acted to “try and 

‘rebrand’ [Maple Grove] and adopt a Thematic and Project Based Learning 

program.”

¶13 Third, the notice of default alleged that Maple Grove had “insufficient 

enrollment to successfully operate as determined by the District.” The notice 

asserted:

Section 4 of the Contract states that [Maple Grove] will have 

a targeted enrollment of 100 students in K-5. The School 

has had an average enrollment of 80 students over the last 

three years and a review of the enrollment figures since 2013 

show[s] a steady decline in enrollment with 97 students in 

2013 and 82 in 2019. 

Based upon these enrollment numbers as well as other 

factors, including [Maple Grove] and District revenue and 

expenses, costs to provide administrative services and 

transportation to [Maple Grove], anticipated capital costs of 

the [Maple Grove] school building, considerations of 

efficiency in District services and facility use, District-wide 
No. 2020AP1179

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staffing, and anticipated resources needed to address 

achievement gaps, the District Board of Education has 

determined that [Maple Grove] has insufficient enrollment 

to successfully operate.

¶14 The notice of default gave the Governance Board seventy-two days to 

cure the specified events of default “to the reasonable satisfaction of the 

Superintendent.” The notice further stated the Governance Board’s failure to cure 

the events of default within that time period “may be cause for the District Board of 

Education’s termination of the Contract.”

¶15 In response to the notice of default, on February 28, 2020, Friends of 

Maple Grove filed the instant lawsuit against the District. In its complaint, Friends 

of Maple Grove alleged that the Governance Board was “not in default under the 

terms of the Contract.” The complaint further alleged that the District’s “attempt to 

assert default on the part of Maple Grove under the terms of the Contract is 

pretextual and represents an attempt to terminate the Contract for reasons other than 

any purported act of default.” The complaint therefore sought a declaration that the 

events of default alleged in the District’s notice were not sufficient to allow the 

District to terminate the contract, and it also requested an injunction preventing the 

District from doing so.

¶16 The District subsequently asserted that Friends of Maple Grove was 

not a proper party because the contract was between the District and the Governance 

Board. Friends of Maple Grove disagreed; however, the parties ultimately 

stipulated to the joinder of the Governance Board’s five members as plaintiffs in 

order to resolve the issue. We refer to the plaintiffs-respondents, collectively, as 

“the Governance Board” throughout the remainder of this opinion.
No. 2020AP1179

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¶17 The circuit court held an evidentiary hearing on the Governance 

Board’s claims over five days during May 2020, and the parties then submitted 

written closing arguments. The court subsequently issued an oral ruling granting 

the Governance Board’s requested declaratory and injunctive relief.

¶18 As relevant to this appeal, the circuit court first addressed and rejected 

the District’s argument that the Governance Board had no authority to sue the 

District. The court relied on WIS. STAT. § 118.40(4)(d)8., which grants a charter 

school governing board the power “[t]o sue and be sued in its own name.” The court 

also reasoned that parties to a contract have an “expectation ... that the courts are 

there to enforce the terms of a contract if it cannot be resolved between the parties.”

¶19 The circuit court next addressed whether the Governance Board had 

defaulted on its contract with the District. First, the court concluded the evidence 

did not show that Maple Grove had failed to meet the academic goals set forth in 

§ 5 of the contract for three consecutive years, as alleged in the District’s notice of 

default. The court noted that the contract went into effect on July 1, 2017, and the 

notice of default was issued on January 20, 2020. The court therefore found that, 

regardless of whether the term “years” in § 5 referred to school years or calendar 

years, three consecutive years had not yet elapsed at the time the District issued its 

notice of default.

¶20 The circuit court also concluded that the academic objectives set forth 

in § 5 of the contract were merely goals that the Governance Board “must aspire to 

reach,” rather than strict standards the Governance Board was required to attain. 

The court further found there was evidence that the Governance Board “tried to raise 

the test scores[,] and in some areas there was improvement again.” Thus, although 

the court reasoned that there “could be a default proven by consecutive scores over 
No. 2020AP1179

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a three year period, and a lack of attempt at progress, the lack of aspiration, 

essentially a charter school giving up,” that was a “worst case scenario” and was 

“not the case here.”

¶21 The circuit court next concluded that the Governance Board had not 

defaulted on its contractual obligations pertaining to enrollment. The court 

emphasized that although the contract provided for a maximum enrollment of 

100 students, it did not specify a minimum enrollment. The court noted that during 

the contract term, Maple Grove had maintained an enrollment of approximately 

eighty students. The court also noted that during the same time period, declining 

enrollment was occurring “throughout the District.” In addition, the court cited 

evidence that Maple Grove continued to be “financially viable” at its current level 

of enrollment.

¶22 The circuit court acknowledged that the contract granted the District 

discretion to determine what level of enrollment was insufficient for Maple Grove 

to operate successfully. While the court found it “difficult” to accept that the 

contract allowed the District to make that determination unilaterally, the court 

conceded that the District has “the final say on [the] enrollment question.” The 

court stated, however, that “[t]here must be a basis for the District’s determination.” 

The court then concluded the evidence did not support a finding that Maple Grove’s 

enrollment was insufficient for it to operate successfully, “given [that] the 

enrollment has remained steady in the past two and a half years of the contract.”

¶23 The circuit court also concluded there was no default under the 

parties’ contract with respect to Maple Grove’s educational program. The court 

found that Maple Grove was “in the process of implementing the required 

curriculums during the ... short two and a half years the contract was in place and 
No. 2020AP1179

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until the notice of default was issued.” The court noted there was testimony that 

Maple Grove’s students “were involved in projects such as collecting maple syrup, 

raising chickens, composting, science fairs and other activities.” The court also 

found that Maple Grove had taken steps to “rebrand” its curriculum in the spring of 

2019 to implement “thematic project-based learning,” with the apparent approval of 

the District’s superintendent. The court further found that in the fall of 2019, Maple 

Grove “was teaching core curriculum mandated by the District in the morning and 

introducing project-based learning in the afternoon.” The court therefore stated it 

could not find that Maple Grove “failed to provide the programming” described in 

the parties’ contract.

¶24 Finally, the circuit court concluded the Governance Board was 

entitled to an injunction because allowing the District to terminate the contract 

would result in irreparable harm—specifically, the closure of Maple Grove. The 

court also concluded there was no adequate alternative remedy. In addition, the 

court concluded that the equities favored granting an injunction, and that an 

injunction would not disserve the public interest.

¶25 The circuit court subsequently entered a final order declaring that “the 

purported events of default” set forth in the District’s January 2020 notice of default 

were “not events of default sufficient to permit the [District] to terminate the 

contract between the parties.” The order also permanently enjoined the District 

from “taking action to terminate said contract based upon the purported events of 

default” alleged in the January 2020 notice. The District now appeals.

DISCUSSION

I. Authority to sue the District
No. 2020AP1179

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¶26 On appeal, the District renews its argument that the Governance 

Board lacked authority to sue the District. Our resolution of this issue requires us 

to interpret and apply both WIS. STAT. § 118.40 and the parties’ contract. Statutory 

interpretation presents a question of law that we review independently. McNeil v. 

Hansen, 2007 WI 56, ¶7, 300 Wis. 2d 358, 731 N.W.2d 273. The interpretation of 

an unambiguous contract also presents a question of law for our independent review. 

Town Bank v. City Real Estate Dev., LLC, 2010 WI 134, ¶32, 330 Wis. 2d 340, 

793 N.W.2d 476.

¶27 The circuit court concluded the Governance Board had authority to 

sue the District under WIS. STAT. § 118.40(4)(d)8., and we agree with that 

conclusion. Section 118.40 grants school boards the authority to enter into contracts

for the operation of charter schools.2 See § 118.40(1m)-(2m), (3). 

Section 118.40(4)(ag) then specifies that each charter school “shall be governed by 

a governing board that is a party to the contract with the authorizing entity.” Section 

118.40(4)(d), in turn, sets forth the powers of a governing board, stating in relevant 

part: “Subject to the terms of its contract, a charter school governing board has all 

the powers necessary to carry out the terms of its contract, including all of the 

following: ... To sue and be sued in its own name.” See § 118.40(4)(d)8.

¶28 Thus, WIS. STAT. § 118.40(4)(d)8. expressly grants a charter school 

governing board the power to sue in its own name. Moreover, the statute grants the 

governing board the power to do so as necessary “to carry out the terms of its 

 

2

 The statute grants “school boards” the authority to enter into charter school contracts. 

See WIS. STAT. § 118.40(1m)-(2m), (3). The charter school contract at issue in this case named the 

District as a party, rather than the District’s school board. Nevertheless, the school board president 

signed the contract on the District’s behalf. In any event, the parties do not assert that the distinction 

between the District and the school board makes any substantive difference for purposes of our 

analysis. We therefore do not address the issue further.
No. 2020AP1179

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contract.” Id. The statute does not contain any provision limiting the governing 

board’s power to sue or otherwise providing that the governing board may not sue 

its authorizing school district. We therefore agree with the circuit court that under 

the plain language of § 118.40(4)(d)8., the Governance Board had authority to sue 

the District in order to enforce the terms of the parties’ contract.

¶29 The District contends this interpretation of WIS. STAT.

§ 118.40(4)(d)8. is incorrect for two reasons. First, the District argues that because 

Maple Grove is an instrumentality charter school, it has a “superior-subordinate 

relationship” with the District and is a mere “extension” of the District. The District 

also emphasizes that Maple Grove is a “creature of statute,” as the legislature 

authorized the creation of charter schools in § 118.40. The District then asserts that 

“[a]s a creature of statute, and instrumentality of the District, the Governance Board 

simply does not have the right to seek judicial enforcement” of its contract with the 

District. Stated differently, the District asserts that the general consent to sue 

granted by § 118.40(4)(d)8. does not permit the Governance Board to sue “its 

superior governmental entity.”

¶30 There are at least two problems with the District’s argument. First, 

the District conflates the Governance Board—the plaintiff in this lawsuit—with 

Maple Grove—the instrumentality charter school created by the Governance 

Board’s contract with the District. Unlike Maple Grove, the Governance Board is 

not an instrumentality of the District, nor does it have a superior-subordinate 

relationship with the District. Rather, the Governance Board is a separate and 

independent party that entered into a contract with the District to create and operate 

Maple Grove. Thus, even if the District is correct that Maple Grove cannot sue the 

District, that proposition is not relevant here because the Governance Board, not 

Maple Grove, is the plaintiff in this lawsuit.
No. 2020AP1179

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¶31 Second, even if the Governance Board could be construed as having 

a superior-subordinate relationship with the District, the District does not cite any 

legal authority supporting its contention that a subordinate government entity may 

never sue its superior government entity. The only legal authority the District cites 

is City of Waukesha v. Salbashian, 128 Wis. 2d 334, 382 N.W.2d 52 (1986). In 

that case, our supreme court took note of the “general rule” that “a municipality, as 

a creature of the legislature, lacks the legal capacity to challenge the actions of its 

creator.” Id. at 349. In support of that general rule, the court cited City of Madison 

v. Town of Fitchburg, 112 Wis. 2d 224, 240, 332 N.W.2d 782 (1983), which 

stated: “It is well settled that a municipality, being a creature of the legislature, does 

not have legal capacity to challenge the constitutionality of a statute.”

¶32 Thus, both Salbashian and City of Madison addressed whether 

municipalities, as creatures of the legislature, could challenge the legislature’s 

actions. The District does not explain why it believes those cases should be read to 

mean that either a charter school or its governing board cannot sue an authorizing 

school district for alleged violations of a charter school contract. The District does 

not cite any other legal authority in support of its claim that the Governing Board, 

as a subordinate entity, may not sue the District, its superior entity. To the extent 

the District claims that either Maple Grove or the Governance Board is a “creature 

of the legislature,” under Salbashian and City of Madison, that status would merely 

prevent them from suing the legislature, not the District.

¶33 The District also argues that our interpretation of WIS. STAT.

§ 118.40(4)(d) is flawed because the statute expressly states the powers listed 

therein are “[s]ubject to the terms of [a governing board’s] contract.” The District 

also notes that a charter school contract must specify “[t]he effect of the 

establishment of the charter school on the liability of the school district.” See 
No. 2020AP1179

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§ 118.40(1m)(b)15., (2m)(a). Based on these provisions, the District argues we 

must consider whether the contract at issue in this case allows the Governance Board 

to file suit against the District. 

¶34 The District then cites § 25 of the parties’ contract, which states that 

“the establishment of [Maple Grove] shall have no effect on the liability of the 

District other than those obligations specifically undertaken by the District under 

this Contract.” The District also cites §§ 27 and 28 of the contract, which set forth 

the procedures by which the District and the Governance Board, respectively, may 

terminate the contract in the event of a default by the other party. The District also 

notes there is no provision in the contract expressly stating that the Governance 

Board may sue the District to enforce the contract’s terms. The District therefore 

argues that “the Governance Board’s exclusive remedies are the default procedures 

identified in the Contract.”

¶35 We disagree. Section 25 of the contract merely states that the 

District’s liability is limited to the “obligations specifically undertaken by the 

District under this Contract.” Here, the District issued a notice of default, which 

asserted that the Governance Board had defaulted on its contractual obligations in 

three ways. The Governance Board contends, however, that it has not defaulted. 

The Governance Board therefore sued the District to prevent it from terminating the 

parties’ contract based on the alleged defaults. Stated differently, the Governance 

Board sued to prevent a prospective breach by the District—i.e., an unlawful 

termination of the contract. As such, the Governance Board sued to enforce an 

obligation specifically undertaken by the District under the contract—namely, its 

obligation not to terminate the contract absent the Governance Board’s default. 

Section 25 does not prevent the Governance Board from suing the District on these 

grounds.
No. 2020AP1179

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¶36 We also reject the District’s argument that §§ 27 and 28 of the contract 

set forth the parties’ exclusive remedies and therefore preclude the Governance 

Board from suing to enforce the contract’s terms. As noted above, those sections 

describe the procedures the District and the Governance Board may use to terminate 

the contract in the event of a default by the other party. Nothing in the contract, 

however, states that those procedures are the parties’ exclusive remedies. 

Moreover, there is nothing in the contract that prevents either party from seeking 

judicial enforcement of the contract’s terms. “Parties who enter into contracts 

expect courts to enforce the terms, which the law requires unless the contract is for 

an illegal purpose or a party lacked capacity.” Mackenzie v. Miller Brewing Co., 

2001 WI 23, ¶28, 241 Wis. 2d 700, 623 N.W.2d 739.

¶37 In summary, we conclude WIS. STAT. § 118.40(4)(d)8. grants a 

charter school governing board authority to sue its authorizing school district. We 

further conclude that nothing in the contract at issue in this case limited the 

Governance Board’s ability to sue the District. We therefore reject the District’s 

argument that the Governance Board lacked authority to file the instant lawsuit.3

II. Default under the parties’ contract

¶38 The District next argues that the circuit court erred by concluding the 

Governance Board did not default on its obligations under the parties’ contract.4 

 

3

 In addressing whether the Governance Board had authority to sue the District, both 

parties rely heavily on a Colorado case—Academy of Charter Schools v. Adams County School 

District No. 12, 32 P.3d 456 (Colo. 2001). We do not find that case helpful, as it applied a charter 

school statute that differs from WIS. STAT. § 118.40 in significant ways. We therefore confine our 

analysis to the plain language of § 118.40 and the parties’ contract.

4

 Aside from arguing that the circuit court erroneously determined the Governance Board 

did not default, the District does not develop any argument that the court erred by granting the 

Governance Board either declaratory or injunctive relief. We therefore limit our discussion to the 

court’s findings and conclusions regarding default.
No. 2020AP1179

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Again, the interpretation of a contract presents a question of law that we review 

independently. Town Bank, 330 Wis. 2d 340, ¶32. However, the circuit court’s 

findings of fact regarding the parties’ conduct will not be set aside unless they are 

clearly erroneous. See WIS. STAT. § 805.17(2). A finding of fact is clearly 

erroneous when it is against the great weight and clear preponderance of the 

evidence. Phelps v. Physicians Ins. Co. of Wis., 2009 WI 74, ¶39, 319 Wis. 2d 1, 

768 N.W.2d 615.

¶39 On appeal, the parties dispute whether the District had the burden to 

prove that the Governance Board defaulted on its contractual obligations, or whether 

the Governance Board instead had the burden to prove that it did not default. The 

circuit court concluded the Governance Board had the burden of proof with respect 

to default, and we agree with that conclusion.

¶40 As a general rule, “the party seeking judicial process to advance a 

position carries the burden of proof.” Long v. Ardestani, 2001 WI App 46, ¶37, 

241 Wis. 2d 498, 624 N.W.2d 405. Here, the Governance Board sued the District, 

seeking declaratory and injunctive relief to prevent the District from terminating the 

parties’ contract. The Governance Board’s claims were premised on the assertion 

that, contrary to the District’s contention, the Governance Board had not defaulted 

on its contractual obligations. On these facts, the Governance Board was the party 

“seeking judicial process to advance a position”—i.e., that the District could not 

lawfully terminate the parties’ contract because the Governance Board had not, in 
No. 2020AP1179

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fact, defaulted. See id. The Governance Board therefore bore the burden to prove 

that it did not default on its contractual obligations.5

A. Academic performance

¶41 The District argues the circuit court erred by concluding the 

Governance Board did not default on its contractual obligations related to academic 

performance. As noted above, § 5 of the contract lists various “goals and 

objectives” that “shall be benchmarks which [Maple Grove] shall aspire to obtain.” 

Under the heading “Student Goal 1—Increase Student Achievement,” the contract 

contains an “[o]bjective” stating that the 2017-18 school year will be the benchmark 

year, and in following years, beginning in Spring 2019: (1) 80% of Maple Grove’s 

students will score at or above the national average in reading on the Measures of 

Academic Progress (MAP) test; (2) 80% of Maple Grove’s students will score at or 

above the national average in math on the MAP test; (3) 80% of Maple Grove’s 

students will increase their proficiency in reading on the MAP test when compared 

with their scores from the previous fall; and (4) 80% of Maple Grove’s students will 

 

5

 The rule that the party seeking judicial process to advance a position bears the burden of 

proof is merely a “general rule” and, as such, is not necessarily applicable in all circumstances. See

Long v. Ardestani, 2001 WI App 46, ¶37, 241 Wis. 2d 498, 624 N.W.2d 405. The Governance 

Board, however, has failed to present a developed argument that this “general rule” is not applicable 

in the instant case. 

Our supreme court has established a five-factor test for allocating the burden of proof. See

Acuity Mut. Ins. Co. v. Olivas, 2007 WI 12, ¶40, 298 Wis. 2d 640, 726 N.W.2d 258. Despite citing 

Olivas, the Governance Board does not acknowledge the existence of this five-factor test or attempt 

to apply it to the facts of this case. Under these circumstances, we decline to develop an argument 

on the Governance Board’s behalf that the burden of proof should be allocated to the District under 

Olivas’s five-factor test. See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI 

App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (we will not abandon our neutrality to develop 

arguments for a party). Instead, we apply the general rule that the Governance Board, as the party 

seeking judicial process to advance a position, bore the burden to prove it did not default on its 

contractual obligations.
No. 2020AP1179

19

increase their proficiency in math on the MAP test when compared with their scores 

from the previous fall.

¶42 The District argues the undisputed facts show that 80% of 

Maple Grove’s students have never met or exceeded the national average in either 

reading or math on the MAP test. The District asserts it is also undisputed that there 

has never been a year in which 80% of Maple Grove’s students increased their 

proficiency in reading or math from fall to spring. The District contends these 

undisputed facts conclusively establish that the Governance Board defaulted with 

respect to academic progress under both § 27a.(1) of the contract—which states an 

event of default occurs if Maple Grove’s pupils “have failed to make progress as set 

forth in Section 5 of this Contract for 3 consecutive years”—and § 27a.(6)—which 

states an event of default occurs if the Governance Board “defaults in any of the 

terms, conditions, promises or representations contained in or incorporated into this 

Contract.”

¶43 The District’s argument fails because, as the circuit court correctly 

noted, the contract expressly states that the various academic standards set forth in 

§ 5 are merely “goals and objectives” that Maple Grove “shall aspire to obtain.” 

Contrary to the District’s assertion, under the plain language of the contract, the 

academic standards in § 5 were not strict thresholds that Maple Grove was required 

to reach in order to avoid default. As such, the fact that 80% of Maple Grove’s 

students never reached the various benchmarks set forth in § 5 of the contract does 

not establish that the Governance Board defaulted under either § 27a.(1) or 

§ 27a.(6).

¶44 The District argues the academic standards in § 5 cannot be 

interpreted as merely aspirational because they are preceded by the word 
No. 2020AP1179

20

“Objective.” The District contends that “[w]hile a goal may be aspirational, 

objectives are not.” However, the District cites no authority in support of this 

proposition. Nothing in the plain language of the contract indicates that the parties 

intended “objectives” to be mandatory but “goals” to be merely aspirational. To the 

contrary, § 5 expressly states that the “goals and objectives” listed therein “shall be 

bench marks which [Maple Grove] shall aspire to obtain.” (Emphasis added.)

¶45 The District also asserts that if the academic standards in § 5 are 

merely aspirational, then there is no way for the parties to determine whether the 

Governance Board has violated § 5, such that an event of default has occurred under 

§ 27a.(1). We agree with the circuit court, however, that the aspirational nature of 

the academic standards in § 5 does not mean the Governance Board can never be 

found in default for failing to comply with that section. Instead, as the court aptly 

explained, the Governance Board may be found in default on its obligations under 

§ 5 if the evidence shows “a lack of attempt at progress, the lack of aspiration, 

essentially a charter school giving up.” The court expressly found, however, that 

“[t]hat’s not the case here,” as the Governance Board proved “that [it had] tried to 

raise the scores[,] and in some areas there was improvement.” The District has not 

shown that the court’s finding in that regard was clearly erroneous.6

 

6

 The District asserts that when the default notice was served on the Governance Board, 

its president “had to ask for the MAP test scores for the last three years because she did not have 

them and the Governance Board never kept track.” However, the fact that the Governance Board’s 

president did not have the test scores on hand when she received the District’s notice of default 

does not establish that the Governance Board made no effort to improve the test scores during the 

contract term. 

Moreover, the District’s assertion that the Governance Board never kept track of the test 

scores is misleading. Although the District cites the Governance Board president’s testimony in 

support of that assertion, the president actually testified that the test scores “were not something 

that the Governance Board kept track of except by getting updates from [Maple Grove’s principal] 

at board meetings.” (Emphasis added.) Contrary to the District’s assertion, this testimony indicates 

that the Governance Board was, in fact, kept apprised of Maple Grove’s test scores.
No. 2020AP1179

21

¶46 Finally, citing evidence extrinsic to the contract, the District asserts 

that before it issued the default notice, the Governance Board had interpreted the 

academic standards in § 5 of the contract as “not simply aspirational, but firm 

requirements.” The District contends it was “only after the Governance Board hired 

counsel that it claimed the 80% student achievement numbers were merely 

aspirational.”

¶47 Be that as it may, we do not consider extrinsic evidence when 

interpreting an unambiguous contract. See Town Bank, 330 Wis. 2d 340, ¶33. 

Here, § 5 of the contract unambiguously states that the academic standards set forth 

therein are goals or objectives that Maple Grove shall aspire to achieve. That 

language cannot reasonably be interpreted to mean that Maple Grove was required 

to meet the stated academic standards in order to avoid default. We therefore refuse 

to consider extrinsic evidence regarding how the Governance Board may have 

previously interpreted § 5. Instead, based on the unambiguous contract language, 

we conclude the academic standards were merely aspirational, and, as such, the 

failure to meet those standards did not constitute an event of default under the 

parties’ contract.7

B. Educational program

¶48 The District’s notice of default also alleged that the Governance 

Board was in default under the parties’ contract for failing to implement an 

 

7

 As noted above, the circuit court also concluded the evidence did not show that 

Maple Grove had failed to meet the academic goals set forth in § 5 of the contract for three 

consecutive years, as alleged in the District’s notice of default. Specifically, the court concluded 

that regardless of whether the term “years” in § 5 referred to school years or calendar years, the 

District had not presented three years of data. Because we conclude the academic standards in § 5 

of the contract were merely aspirational, we need not address this alternative basis for the court’s 

ruling.
No. 2020AP1179

22

innovative educational program. On appeal, however, the District begins its 

discussion of this issue by advancing a different argument. Namely, the District 

argues the circuit court should have concluded that the Governance Board defaulted 

by failing to implement personalized learning plans for 100% of Maple Grove’s 

students, as required by § 5 of the contract. This argument fails for two reasons.

¶49 First, the plain language of the contract indicates that the 

implementation of personalized learning plans for all of Maple Grove’s students 

was merely an aspirational goal, rather than a mandatory requirement. Again, § 5 

of the contract sets forth “goals and objectives” that Maple Grove “shall aspire to 

obtain.” Section 5b.i. then contains an “Objective” that states: “By the end of the 

first academic year (2017-2018) one hundred percent (100%) of students will have 

a Personalized Learning Plan.” The failure to meet this aspirational goal did not 

constitute a default under the parties’ contract.

¶50 Second, the District’s notice of default did not assert that the 

Governance Board had defaulted on its contractual obligations by failing to 

implement personalized learning plans for 100% of Maple Grove’s students. 

Instead, the notice asserted that the Governance Board was in default for failing to 

implement an innovative educational program. Because the notice did not allege 

any default regarding the implementation of personalized learning plans, there was 

no need for the circuit court to address that issue. As such, the court did not err by 

failing to do so.

¶51 We therefore turn to the alleged default that actually was raised in the 

District’s notice—i.e., the Governance Board’s failure to implement an innovative 

educational program. It is undisputed that § 4 of the parties’ contract required 

Maple Grove to use an educational program that included a “Project Based Learning 
No. 2020AP1179

23

model.” The District interprets § 4 as requiring “all core curriculum [to] be 

embedded and taught through student projects.” The District asserts that Maple 

Grove “never implemented” a project-based learning model “in the first nearly three 

years of the Contract.” Although the District appears to concede that some 

project-based learning began in the fall of 2019, it asserts that the Governance Board 

remained in default because Maple Grove was not exclusively using project-based 

learning to teach its core curriculum.

¶52 This argument fails because the District does not point to any 

language in § 4 of the contract that unambiguously required all core curriculum to 

be taught through project-based learning. Instead, the contract merely required 

Maple Grove to use an educational program that included project-based learning as 

one of its “main features.” The circuit court found that Maple Grove had, in fact, 

implemented a project-based learning program for a portion of its curriculum by the 

time the District issued its notice of default in January 2020. That finding is 

supported by evidence in the record and is not clearly erroneous.

¶53 Specifically, Maple Grove’s teaching principal, Dr. Dawn Nonn, 

testified that as of March 2019, Maple Grove was using the District’s curriculum 

for “English language arts and mathematics,” but “for science and social studies we 

did more of the project-based learning.” Nonn explained that Maple Grove “did 

core academics in the morning[,] and then we did the project-based [learning] in the 

afternoon.”

¶54 Nonn further testified that in March 2019, she and the Governance 

Board were interested in “rebranding” Maple Grove’s curriculum to “shore up what 

we wanted to call the type of learning taking place at the school.” As part of the 

rebranding, they envisioned that beginning in the fall of 2019, some of the 
No. 2020AP1179

24

English/Language Arts curriculum that was being taught in the morning would be 

moved into the afternoon and “blend[ed] ... more into the project-based learning 

that was taking place in the afternoon.” Nonn testified Maple Grove implemented 

that change in the fall of 2019 by “adjust[ing] the time that we had available for 

teachers to be able to put into the project-based learning so that it was a little bit 

more active and engaging for the children throughout the day.”

¶55 Nonn’s testimony supports the circuit court’s finding that 

Maple Grove had implemented a project-based learning program before the District 

issued its notice of default in January 2020. Again, while the parties’ contract 

required Maple Grove to have an educational program that included project-based 

learning, the District does not point to anything in the contract requiring the entirety 

of Maple Grove’s curriculum to be taught using a project-based learning model. 

Consequently, the court properly determined that Maple Grove did not default by 

failing to implement the educational program required by the parties’ contract.

C. Enrollment

¶56 The District also argues that the Governance Board defaulted on its 

contractual obligations with respect to enrollment. Again, the contract states that 

Maple Grove “will enroll students, with a targeted enrollment of a maximum of 100 

students.” The contract further states that an event of default occurs if Maple Grove 

“has insufficient enrollment to successfully operate ... as determined by the 

District.”

¶57 We agree with the District that the contract, by its plain language, 

grants the District sole discretion to determine whether Maple Grove’s enrollment 

is sufficient for successful operation. The circuit court expressed discomfort with 

this principle in its oral ruling, stating it was “difficult to find” that the contract 
No. 2020AP1179

25

allowed the District to “unilaterally decide” whether Maple Grove’s enrollment was 

sufficient. The court acknowledged, however, that “that’s what the contract says.” 

The court later reiterated that the contract gave the District “the final say on [the] 

enrollment question.”

¶58 Nevertheless, the circuit court then proceeded to substitute its own 

discretion for that of the District regarding the sufficiency of Maple Grove’s 

enrollment. The court cited the superintendent’s testimony that Maple Grove was 

financially viable at its current level of enrollment. The court also noted that 

enrollment had been declining across the District during the contract term. The 

court then concluded that Maple Grove’s enrollment was sufficient because it had

“remained steady in the past two and a half years of the contract.”

¶59 The circuit court apparently gave little or no weight to the District’s 

evidence showing that Maple Grove’s low enrollment directly impacted the 

District’s finances. Brian Dasher, the District’s director of finances, testified that 

the District received $9,700 in revenue from the State for each District resident 

enrolled at its schools. Dasher explained that Maple Grove’s enrollment of 

approximately eighty students, rather than 100 students, meant a difference of 

approximately $200,000 in funding. Dasher also testified that because of 

Maple Grove’s low test scores, the District was forced to spend funds that had 

originally been allocated for other schools on reading specialists and instructional 

coaches for Maple Grove students. Dasher testified that if Maple Grove had 100 

students enrolled instead of eighty, the additional revenue from the State would have 

covered the cost of hiring those specialists.

¶60 In essence, the circuit court weighed the evidence and made an 

independent determination that Maple Grove’s enrollment was sufficient for it to 
No. 2020AP1179

26

operate successfully. The contract, however, granted the District sole discretion to 

determine whether Maple Grove’s enrollment was sufficient. “When one party to a 

contract is vested with contractual discretion, it must exercise that discretion 

reasonably and with proper motive, and may not do so arbitrarily, capriciously or in 

a manner inconsistent with the reasonable expectations of the parties.” Interim 

Health Care, 225 F.3d at 884. Thus, the proper inquiry was not whether the court 

reasonably believed that Maple Grove’s enrollment was sufficient, but whether the 

District acted reasonably and with a proper motive when it determined that Maple 

Grove’s enrollment was insufficient.

¶61 Consequently, the circuit court failed to apply the proper legal 

standard when considering whether an event of default had occurred under the 

parties’ contract with respect to Maple Grove’s enrollment. Moreover, the record 

is insufficient for us to apply the proper standard in the first instance on appeal—

particularly regarding the issue of whether the District acted with a proper motive. 

We therefore reverse the court’s decision, to the extent the court determined the 

Governance Board did not default on its contractual obligations with respect to 

enrollment. We remand for the court to consider whether the District’s 

determination regarding the insufficiency of Maple Grove’s enrollment was made 

reasonably and with a proper motive. See id.

¶62 No party shall receive appellate costs. See WIS. STAT.

RULE 809.25(1).

By the Court.—Order affirmed in part; reversed in part and cause 

remanded for further proceedings.