COURT OF APPEALS

DECISION

DATED AND FILED

August 1, 2024

Samuel A. Christensen

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. 2023AP2183 Cir. Ct. No. 2022CV199

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

RURAL MUTUAL INSURANCE COMPANY,

 PLAINTIFF-APPELLANT,

 V.

BALLWEG IMPLEMENT CO., INC.,

 DEFENDANT-RESPONDENT.

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

MICHAEL D. ZELL, Judge. Affirmed. 

Before Kloppenburg, P.J., Blanchard, and Nashold, JJ.

¶1 BLANCHARD, J. Ballweg Implement sold a used tractor to an 

entity insured by Rural Mutual Insurance. Rural Mutual alleges that the tractor

spontaneously combusted after the sale and after it came into the possession of the 

insured. Pursuing a subrogated claim in the place of the tractor purchaser, Rural 
No. 2023AP2183

2

Mutual filed the action here against Ballweg (and other parties), alleging that 

Ballweg had breached an implied warranty of merchantability arising from the 

tractor sale. On Ballweg’s motion, the circuit court dismissed it as a defendant 

based on a provision in the purchase order for the tractor sale in which Ballweg

purported to disclaim an implied warranty of merchantability otherwise arising 

from the sale. Rural Mutual challenges this ruling on three alternative grounds.

¶2 Rural Mutual argues that the tractor sale was subject to WIS. ADMIN.

CODE § Trans 139.06(3) (March 2020), which limits the ability of “dealers” of 

“motor vehicle[s]” to disclaim implied warranties of merchantability, and that 

under § Trans 139.06(3) the disclaimer here is unenforceable.

1

 This argument is 

based on the premise that sales of all tractors in Wisconsin are subject to 

§ Trans 139.06(3) because all tractors are self-propelled motor vehicles. We 

disagree. We conclude that § Trans 139.06(3) does not apply to the facts alleged 

here because Ballweg, as the tractor’s seller, was not a “dealer” of the type 

regulated by WIS. ADMIN. CODE ch. Trans 139, when closely related statutes and 

regulations are taken into account. Notably, under those closely related provisions 

sellers of “farm tractors” are not “dealers” of “motor vehicles” for purposes of 

ch. Trans 139. 

¶3 Rural Mutual separately argues that the terms of the disclaimer are 

ambiguous about whether an implied warranty of merchantability is excluded. We 

conclude that the disclaimer unambiguously excludes such warranties.

 

1

 All references to WIS. ADMIN. CODE ch. Trans 139 are to the version published in 

March 2020.
No. 2023AP2183

3

¶4 Rural Mutual also contends that the disclaimer is subject to a 

provision in the Uniform Commercial Code (UCC), WIS. STAT. § 402.719(2)

(2021-22), which states that when a contract provides an “exclusive or limited 

remedy,” but circumstances prevent application of that remedy, then other 

provisions of the UCC may be relied on to determine the appropriate remedy.

2

 

While Rural Mutual’s argument is difficult to track, the contention appears to be

that, under the remedy gap-filler rule in § 402.719(2), Rural Mutual must be 

allowed to pursue statutory remedies against Ballweg. We reject this argument for 

at least the following reason: Rural Mutual fails to provide a legally supported 

argument that its specific claim here of breach of an implied warranty of 

merchantability states a claim for which relief can be granted, even if we assume 

that § 402.719(2) applies.

¶5 Accordingly, we affirm.

BACKGROUND

¶6 The following summarizes allegations in Rural Mutual’s operative 

complaint, which we assume to be true for purposes of our analysis. In August 

2020, Rural Mutual’s insured, Eron Beef LLC, purchased a used, Case brand 

tractor from Ballweg. Eron never received a signed copy of a contract for the sale. 

Ballweg provided only an unsigned copy of a purchase order, and this occurred 

only after Eron had paid for the tractor. The purchase order included a provision 

purporting to disclaim the implied warranty of merchantability that is recognized 

 

2

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise

noted.
No. 2023AP2183

4

in WIS. STAT. § 402.314.3 The complaint contained allegations based on WIS.

ADMIN. CODE § Trans 139.06(3), under which a warranty disclaimer is not 

enforceable if the sale at issue was not “explicitly negotiated” by the parties at the 

time of the sale on an “as is” or “no warranty” basis. This included the allegation 

that Eron and Ballweg did not “explicitly negotiate[]” the sale through the

purchase order. The result, according to the complaint, was that Ballweg did not 

disclaim the implied warranty through the provision in the purchase order or 

otherwise. In October 2021, while Eron representatives were using the tractor, it 

“spontaneously combusted, causing a fire.” The fire destroyed the tractor and 

other Eron property. Rural Mutual paid for the resulting damages under its policy 

insuring Eron. 

¶7 Pursuant to Rural Mutual’s subrogation rights under the policy, it

commenced this action in July 2022, standing in the shoes of Eron for purposes of 

Ballweg’s liability to Eron. Pertinent here, Rural Mutual named Ballweg as a 

defendant. Rural Mutual sought as relief a declaration by the circuit court that an 

implied warranty of merchantability arose at the time of the tractor sale and also 

sought a judgment reflecting that Ballweg breached that warranty.4

 

3

 Under WIS. STAT. § 402.314(1), a contract for the sale of goods contains an “implied” 

“warranty that the goods shall be merchantable” “if the seller is a merchant with respect to goods 

of that kind.” Merchantability is defined in part as “[p]ass[ing] without objection in the trade 

under the contract description” and being “fit for the ordinary purposes for which such goods are 

used.” See § 402.314(2)(a), (c).

4

 Rural Mutual brought claims against other defendants, but these are generally not

pertinent to this appeal. The exception is a reference we make in the text below to factual 

allegations in the operative complaint in the other claims, because these allegations shed light on 

whether Rural Mutual’s complaint states a claim for breach of the implied warranty against 

Ballweg. The circuit court dismissed Ballweg’s insurer as a defendant, and Rural Mutual does 

not challenge this ruling. 
No. 2023AP2183

5

¶8 Ballweg moved to dismiss the claims against it for failure to state a 

claim on which relief can be granted. See WIS. STAT. § 802.06(2)(a)6. In support 

of the motion, Ballweg submitted an affidavit of its owner and shareholder, who 

averred that the tractor sale was conducted pursuant to a two-page document

entitled “Purchase Order for John Deere Equipment (U.S. Only).” The purchase 

order was attached to the affidavit. Ballweg argued that, under the incorporationby-reference doctrine, Rural Mutual’s complaint incorporated the contents of the 

purchase order. See Soderlund v. Zibolski, 2016 WI App 6, ¶¶37-38, 366 Wis. 2d 

579, 874 N.W.2d 561 (under the “incorporation-by-reference doctrine,” the 

contents of a document that is referenced in a complaint and central to a claim of 

the plaintiff is “not outside the pleadings” and may be considered in a motion to 

dismiss). Ballweg based its motion to dismiss on a provision in the purchase order 

that Ballweg argued disclaimed an implied warranty of merchantability arising 

from the tractor sale. 

¶9 In opposing the motion to dismiss, Rural Mutual did not contest that 

the terms of the purchase order, including the disclaimer, are incorporated by 

reference into the operative complaint. Instead, Rural Mutual made the following 

arguments in the alternative: that the tractor sale is subject to WIS. ADMIN. CODE 

§ Trans 139.06(3), under which the purchase order disclaimer is unenforceable

because the tractor sale was not “explicitly negotiated” by the parties at the time of 

the sale on an “as is” or “no warranty” basis; that the disclaimer is ambiguous, and 

therefore it should be construed against Ballweg as the drafter—with the result 

that the implied warranty applies to the sale; and that the disclaimer is barred 

under WIS. STAT. § 402.719(2), which is a remedy gap-filler that applies to some 

sales contracts. 
No. 2023AP2183

6

¶10 The circuit court rejected each of Rural Mutual’s arguments and 

concluded that the disclaimer applies to bar Rural Mutual’s claims against 

Ballweg. The court ruled that WIS. ADMIN. CODE § Trans 139.06(3) does not 

apply to the tractor sale. The court also appeared to reject the argument that the 

disclaimer is ambiguous, concluding instead that it is “a valid and enforceable 

waiver of any implied warranties” under the UCC. The court agreed with Ballweg 

that WIS. STAT. § 402.719(2) does not apply to the disclaimer because the 

disclaimer is not a limitation on remedies or damages. Based on these rulings, the 

court ultimately dismissed Ballweg from the action.

5

¶11 Rural Mutual appeals.

DISCUSSION

¶12 On appeal, Rural Mutual renews the same three arguments that it 

made in the circuit court, summarized above.

¶13 The issue is whether the allegations in Rural Mutual’s operative 

complaint state a claim against Ballweg on which relief can be granted. See WIS.

STAT. §§ 802.02(1), 802.06(2)(a)6., (b). This presents an issue of law that we 

review de novo. See Johnson v. Rogers Mem’l Hosp., Inc., 2001 WI 68, ¶15, 244 

Wis. 2d 364, 627 N.W.2d 890.

 

5

 Stated more precisely, the circuit court converted Ballweg’s motion to dismiss into a 

motion for summary judgment to consider what ultimately turned out to be an uncontested factual 

point. But the parties agree that, for purposes of this appeal, the issue here is whether the 

complaint “state[s] a claim upon which relief can be granted.” See WIS. STAT. §§ 802.06(2)(a)6., 

(b), 802.08(2); Broome v. DOC, 2010 WI App 176, ¶9, 330 Wis. 2d 792, 794 N.W.2d 505 (first 

step in summary judgment methodology is to determine if the complaint states a claim for relief). 
No. 2023AP2183

7

¶14 As part of our review, we assume that all factual allegations in the 

complaint, along with reasonable inferences arising from the allegations, are true. 

See CreditBox.com, LLC v. Weathers, 2023 WI App 37, ¶14, 408 Wis. 2d 715, 

993 N.W.2d 802. Consistent with its arguments in the circuit court, Rural Mutual

does not contest that the terms of the purchase order are incorporated by reference

into the allegations of the complaint and therefore are part of the analysis, nor 

more generally does Rural Mutual dispute that the purchase order generally 

governed the terms of the tractor sale at issue. See Fleming v. Amateur Athletic 

Union of the United States, Inc., 2023 WI 40, ¶4 & n.3, ¶12, 407 Wis. 2d 273, 

990 N.W.2d 244 (reviewing motion to dismiss complaint for failure to state a 

claim based on allegations of complaint and documents attached to motion to 

dismiss incorporated by reference into the complaint). In contrast, we ignore legal 

conclusions stated in the complaint. CreditBox.com, 408 Wis. 2d 715, ¶14. 

¶15 We review de novo all of the issues here: the interpretation and 

application of statutes, see Meyers v. Bayer AG, 2007 WI 99, ¶22, 303 Wis. 2d 

295, 735 N.W.2d 448; the interpretation of administrative regulations, see State v. 

Brown, 2006 WI 131, ¶18, 298 Wis. 2d 37, 725 N.W.2d 262; and the 

interpretation of contract language, including the determination of whether a 

contract provision is ambiguous, see Chapman v. B.C. Ziegler & Co., 2013 WI 

App 127, ¶2, 351 Wis. 2d 123, 839 N.W.2d 425. 

I. Applicability of WIS. ADMIN. CODE § Trans 139.06(3)

¶16 Rural Mutual argues that the disclaimer of the implied warranty in 

the purchase order is unenforceable under WIS. ADMIN. CODE § Trans 139.06(3), 

because the operative complaint sufficiently alleges that the tractor sale was not 

“explicitly negotiated” on an “as is” basis as required by § Trans 139.06(3). 
No. 2023AP2183

8

Ballweg argues in pertinent part that § Trans 139.06(3) does not apply here, 

because when one traces through pertinent rules and statutes, § Trans 139.06(3) 

does not apply to farm tractors used for farming like the one at issue here. See 

WIS. ADMIN. CODE § Trans 139.01.

¶17 We conclude that WIS. ADMIN. CODE § Trans 139.06(3) does not 

apply to the farm tractor sale here because other regulatory provisions, based on 

several statutory definitions, exclude the farm tractor as a subject of 

§ Trans 139.06(3). More specifically, the other regulations and statutes: (1) limit 

the application of § Trans 139.06(3) to sales of “motor vehicles” by “dealers”; and 

(2) define “dealers” based on whether they sell vehicles that, under state statutes, 

must be registered in order to operate on state highways. See WIS. STAT.

§§ 340.01(22), 341.01(1) (defining “highway” in this context to mean “all public 

ways and thoroughfares and bridges on the same”). After we explain this 

conclusion further, we explain why we reject Rural Mutual’s argument that what 

governs here are regulations that rely on alternative statutory definitions of 

“dealers” and of “motor vehicles” based on the concept of vehicle self-propulsion. 

Rural Mutual argues that this alternative set of regulatory and statutory provisions 

establishes that “motor vehicles” includes all tractors, used for farming or 

otherwise, including the one sold here. Previewing our rejection of that argument, 

we conclude that this argument based on the vehicle self-propulsion definition 

fails in the face of regulatory provisions that rely on other definitions of dealers of 

motor vehicles, which exclude all those vehicles that are not required to be 

registered to operate on state highways. 

¶18 “‘When interpreting administrative regulations, we use the same 

rules of interpretation as we apply to statutes.’” DOR v. Menasha Corp., 2008 WI 

88, ¶45, 311 Wis. 2d 579, 754 N.W.2d 95 (quoted source omitted). These rules of 
No. 2023AP2183

9

interpretation include that the pertinent rule language “is given its common, 

ordinary, and accepted meaning, except that technical or specially-defined words 

or phrases are given their technical or special definitional meaning.” See State ex 

rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 

N.W.2d 110. Further, the context and structure of the administrative rule inform 

the meaning of the rule’s “operative language.” See id., ¶46. Therefore, “[t]he 

language in [an] administrative rule must be interpreted in the context in which it 

is used, and not in isolation but as part of a whole, and in relation to the language 

of surrounding or closely related administrative rules.” See Security Health Plan 

of Wis. Inc. v. American Standard Ins. Co. of Wis., 2018 WI App 68, ¶57, 384 

Wis. 2d 545, 920 N.W.2d 340 (citing Kalal, 271 Wis. 2d 633, ¶46).

¶19 WISCONSIN ADMIN. CODE § Trans 139.06(3) provides in pertinent 

part:

No implied warranty of merchantability or fitness 

shall be excluded in the sale of a motor vehicle unless the 

sale is explicitly negotiated between the purchaser and 

dealer licensee on an “AS IS—NO WARRANTY” basis 

and is in conformity with [WIS. ADMIN. CODE 

§] Trans 139.04(6)(a)5.

The parties agree that § Trans 139.06(3) applies to the facts alleged in the 

operative complaint here if two things are true: the tractor sale counts as “the sale 

of a motor vehicle,” and Ballweg counts as a “dealer.” 

¶20 With this framing in mind, and applying the standards governing 

administrative rule interpretation stated above, we conclude that WIS. ADMIN.

CODE § Trans 139.01, which limits the “[p]urpose and scope” of the chapter,

directs that a definition of “motor vehicle” that excludes farm tractors applies to 
No. 2023AP2183

10

the implied warranty rule in WIS. ADMIN. CODE § Trans 139.06(3). As a result, 

we conclude that § Trans 139.06(3) does not apply to the tractor sale here.

6

 

¶21 Explaining further, WIS. ADMIN. CODE § Trans 139.01 accomplishes 

this result by defining limited circumstances in which ch. Trans 139 and its 

implied warranty rule apply to the buying and selling of motor vehicles, based on 

the role of the Wisconsin Department of Transportation in licensing certain kinds 

of “dealers” and related types of businesses under subchapter I of WIS. STAT.

ch. 218. See WIS. STAT. § 218.0101(19) (defining “licensor” to include the 

department); WIS. STAT. § 218.0111(1). Specifically, § Trans 139.01 defines these 

limited circumstances as follows:

(2) APPLICABILITY. This chapter applies to any 

person applying for or holding a Wisconsin motor vehicle 

salvage dealer, manufacturer, distributor wholesale auction, 

dealer or salesperson license.

(3) This chapter applies to any sale or lease of a 

vehicle by a dealer to a person within the state of 

Wisconsin if the vehicle is delivered within the boundaries 

of this state notwithstanding any contractual agreement 

between the dealer and person to the contrary.

 

6

 Because we conclude that WIS. ADMIN. CODE § Trans 139.01, and the additional 

regulatory and statutory provisions that it implicates, are dispositive on the issue of whether WIS.

ADMIN. CODE § Trans 139.06(3) applies, there are several arguments by the parties that we need 

not reach. See Maryland Arms Ltd. P’ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 

N.W.2d 15 (appellate courts should typically decide cases on the narrowest available grounds; 

“[i]ssues that are not dispositive need not be addressed”). For this reason, we do not address 

arguments of the parties regarding the reference in § Trans 139.06(3) to “conformity with” WIS.

ADMIN. CODE § Trans 139.04(6)(a)5. Further, we do not reach the issue of whether, assuming 

that § Trans 139.06(3) could apply here, the allegations of the complaint support a reasonable 

inference that the tractor sale was not “explicitly negotiated” on an “as is” or “no warranty” basis,

as required by § Trans 139.06(3). Nor do we address the issue of whether the department would 

have exceeded its statutorily conferred rulemaking authority to the extent that it purported to 

apply § Trans 139.06(3) to a definition of “motor vehicles” that includes farm tractors. See WIS.

STAT. § 227.11(2)(a) (“a rule is not valid if the rule exceeds the bounds of correct interpretation” 

of “provisions of a statute enforced or administered by an agency”); Koschkee v. Taylor, 2019 

WI 76, ¶15, 387 Wis. 2d 552, 929 N.W.2d 600.
No. 2023AP2183

11

On their face, these provisions limit the application of ch. Trans 139, including the 

provision addressing implied warranties in WIS. ADMIN. CODE § Trans 139.06(3), 

to one of two sets of circumstances: when the seller is an applicant for, or holder 

of, a license to conduct the named types of businesses under § Trans 139.01(2); or 

when a vehicle sale or lease is made by “a dealer” under the circumstances 

described in § Trans 139.01(3).

¶22 Rural Mutual does not argue that any of the allegations in the

operative complaint state or give rise to a reasonable inference that Ballweg is a 

“salvage dealer, manufacturer, distributor wholesale auction,” or “salesperson.”

This leaves the issue of whether WIS. ADMIN. CODE ch. Trans 139 applies to the 

allegations here because Ballweg is a “dealer” for purposes of either WIS. ADMIN.

CODE § Trans 139.01(2) or (3). 

¶23 As we now explain, “dealer” is defined for purposes of WIS. ADMIN.

CODE ch. Trans 139 through a series of cross-references that are tied to WIS. STAT.

§ 218.0101. The result is that “dealer,” when used in ch. Trans 139, is limited to 

those who sell “motor vehicles” that do not include tractors that are used for 

farming. 

¶24 To begin, WIS. ADMIN. CODE § Trans 139.02(10g) states that 

“‘[m]otor vehicle dealer’ or ‘dealer’ has the same meaning as provided in” WIS.

ADMIN. CODE § Trans 138.02(5g) (April 2024). Section Trans 138.02(5g), in turn, 

states that the definition is the same as in WIS. STAT. § 218.0101(23)(a). These 

connections and cross-references lead to § 218.0101(23)(a), which defines “motor 

vehicle dealer” as “any person, firm[,] or corporation” who:

1. For commission, money or other thing of value, 

sells, leases, exchanges, buys, offers or attempts to 
No. 2023AP2183

12

negotiate a sale, consumer lease or exchange of an interest 

in motor vehicles; or

2. Is engaged wholly or in part in the business of 

selling or leasing motor vehicles, including motorcycles, 

whether or not the motor vehicles are owned by that

person, firm or corporation.

These definitions rely in turn on the phrase “motor vehicle,” which is also defined 

under § 218.0101. Specifically, § 218.0101(22) defines “motor vehicle” as “any 

motor-driven vehicle required to be registered under” WIS. STAT. ch. 341 

(“registration of vehicles”).7 

¶25 Summarizing the analysis to this point, persons, firms and

corporations are defined as “dealers” for purposes of WIS. STAT. ch. 218—and by 

extension are “dealers” under WIS. ADMIN. CODE § Trans 139.01—only if they 

sell “motor-driven vehicles” that are required to be registered under chapter 341 of 

the Wisconsin Statutes.

¶26 This brings us to relevant aspects of WIS. STAT. ch. 341. This 

chapter addresses the types of vehicles that must be registered for use on any 

“highway of this state.” See, e.g., WIS. STAT. § 341.04(1) (prohibiting the 

operation of a “motor vehicle” on state highways unless the vehicle is registered or 

exempt from registration, or fits within temporary exceptions not pertinent here). 

 

7

 We observe that, in contrast to WIS. ADMIN. CODE §§ 138.02(5g) 

and Trans 139.02(10g), which both combine the definition for “‘motor vehicle dealer’ and 

‘dealer,’” the statute that provides general definitions for the motor vehicle code provides 

separate definitions for these terms. See WIS. STAT. § 340.01(11), (35e). For reasons we explain 

in the text, however, we do not rely on § 340.01 for its definitions of “motor vehicle,” “motor 

vehicle dealer,” or “dealer,” because WIS. ADMIN. CODE §§ Trans 139.01(2)-(3) and 139.02(5g) 

unambiguously point to WIS. STAT. § 218.0101 and then to WIS. STAT. ch. 341 for pertinent 

definitions. And, in any case, the definition of “motor vehicle dealer” in § 340.01(35e) could not 

support Rural Mutual’s approach, because it refers to § 218.0101(23)(a), which in turn requires 

reliance on the rules requiring that certain vehicles be registered to operate on state highways. 
No. 2023AP2183

13

WISCONSIN STAT. § 341.05 lists the types of vehicles that are exempt from a 

registration requirement, which includes “farm tractor[s]” when used for certain 

purposes. See § 341.05(7). Starting with the “[f]arm tractor” aspect, this is

defined to be a “motor vehicle designed and used primarily as an implement of 

husbandry for drawing, or having attached to it, other implements of husbandry.” 

See WIS. STAT. §§ 340.01(16), 341.01(1) (incorporating definitions from § 340.01 

into ch. 341).8 Turning to the required purposes, farm tractors are exempt from 

registration on the highways when they are:

used exclusively in agricultural operations, including 

threshing, or used exclusively to provide power to drive 

other machinery, or to transport from job to job machinery 

driven by a farm tractor; used for special occasions such as 

display and parade purposes or for participation in tractor 

or antique vehicle clubs, including traveling to and from 

such events; or used for testing, maintenance, and storage 

purposes.

Sec. 341.05(7).

¶27 Taking into account all of these statutes and regulations, then, as 

pertinent here under WIS. ADMIN. CODE § Trans 139.01, the application of WIS.

ADMIN. CODE ch. Trans 139 is limited to circumstances involving “dealers,” 

which is based on a definition of the sales of “motor vehicles” that excludes farm 

tractors because they need not be registered for operation on state highways.

¶28 We now turn to the relevant allegations in the operative complaint to 

determine if there is any reasonable inference that the tractor that Ballweg sold

 

8

 As pertinent to the meaning of “farm tractor,” the phrase “implement of husbandry” is 

defined by statute to include a “towed vehicle that is manufactured, designed, or reconstructed to 

be used and that is exclusively used in the conduct of agricultural operations.” See WIS. STAT.

§ 340.01(24)(a)1. 
No. 2023AP2183

14

was not a “farm tractor.” If it was not a “farm tractor,” it would have to be

registered for state highway use, and WIS. ADMIN. CODE § Trans 139.01 would 

apply to potentially preserve the implied warranty here.

¶29 The complaint does not allege many details about this tractor, about 

Eron Beef, or about Eron’s use or intended use of the tractor after purchasing it, 

but it does include the following. It refers to Eron as a farm. It provides

allegations about the manufacturer’s design of the type of tractor at issue here, in 

addition to the manufacturer’s alleged efforts to correct the design flaw that Rural 

Mutual alleges (in claims that are not at issue in this appeal) caused the tractor to

combust. These additional allegations refer to “reports from around the world” 

involving “farmers ... observing the [tractor] fires” ignited by an alleged defect. 

The alleged defect involved the buildup of “field debris” in one part of the 

tractor’s exhaust pipe. Taken altogether, these allegations suggest that the tractor 

here was a “farm tractor” that was “used exclusively in agricultural operations” or 

“exclusively to ... transport ... machinery driven by a farm tractor.” See WIS.

STAT. § 341.05(7).

¶30 We have just explained why we conclude that the tractor sale here 

was not the sale of a “motor vehicle” by a “dealer.” But, as noted above, WIS.

ADMIN. CODE ch. Trans 139 applies not only to sales of “motor vehicles” by 

“dealers,” it also “applies to any person applying for or holding a Wisconsin motor 

vehicle ... dealer ... license” of the kind regulated under WIS. STAT. ch. 218. See 

WIS. ADMIN. CODE § Trans 139.01(2)-(3). For this reason, there remains the 

possibility that Ballweg was subject to ch. Trans 139 as a dealer license holder or 

applicant. Yet Rural Mutual fares no better when we consider this alternative

theory. This is because the operative complaint contains no allegations that 

Ballweg held or applied for a license at any pertinent time. More generally, the 
No. 2023AP2183

15

complaint is sparse in providing relevant allegations regarding Ballweg’s business 

activities from which such license holding could reasonably be inferred. Stepping 

back, as part of Rural Mutual’s larger series of concessions by failing to address 

registration-based definitions of “dealer” and “motor vehicle,” it effectively 

concedes that there is no theory under § Trans 139.01(2) or (3), supportable by the 

allegations of the complaint, that could save Rural Mutual’s argument that WIS.

ADMIN. CODE § Trans 139.06(3) applies here to render the purchase order’s

disclaimer unenforceable.

¶31 Thus, accounting for the fact that WIS. ADMIN. CODE ch. Trans 139 

is based in part on the concept of “dealers,” as defined in pertinent statutes, the 

allegations of the amended complaint do not support application of ch. Trans 139 

here to exclude the disclaimer. Accordingly, the implied warranty rule in WIS.

ADMIN. CODE § Trans 139.06(3) does not apply to Rural Mutual’s claims against 

Ballweg to prevent dismissal of those claims based on the disclaimer.

¶32 Turning to Rural Mutual’s position regarding WIS. ADMIN. CODE 

§ Trans 139.01, it fails in its reply brief to meaningfully address Ballweg’s 

arguments on the topic. In fact, Rural Mutual incorrectly asserts that Ballweg 

does not cite to the administrative code in support of its argument. Instead of 

attempting to address Ballweg’s arguments head-on, Rural Mutual merely

emphasizes that its proposed interpretation—that “motor vehicles” always 

includes tractors—has the benefit of being less complex than Ballweg’s, because it

involves fewer legal principles and cross-references. But Rural Mutual does not

explain why, regardless of the number of steps that may be required to track

Ballweg’s positions, following those steps is not the legally correct path. We treat

this gap in Rural Mutual’s reply brief as a concession of the issue and, standing by 

itself, this concession supports accepting Ballweg’s position on this issue. See 
No. 2023AP2183

16

United Co-op. v. Frontier FS Co-op., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 

738 N.W.2d 578. But in the interest of completeness, we now explain why we 

reject the limited argument that Rural Mutual offers.

¶33 Rural Mutual’s limited argument, offered as a counter to Ballweg’s

registration-based WIS. STAT. § 218.0101(22) definition summarized above, rests 

on the following proposition: WIS. ADMIN. CODE ch. Trans 139 imports into the

implied warranty rule in WIS. ADMIN. CODE § Trans 139.06(3) a definition of 

“motor vehicle” that includes tractors. As we discuss in the next paragraph, it is 

true that, when one puts entirely to the side the “applicability” provisions in WIS.

ADMIN. CODE § Trans 139.01(2)-(3), Rural Mutual’s alternative interpretation of 

“motor vehicle” logically traces the directions that are provided in another part of 

ch. Trans 139 to import a definition based on a vehicle being self-propelled. But 

Rural Mutual specifically fails to provide a basis to set § Trans 139.01 to the side 

and generally fails to account for the applicability of ch. Trans 139 as a whole. 

¶34 We now detail Rural Mutual’s limited argument. It starts with the 

observation that WIS. ADMIN. CODE § Trans 139.02 states that “[w]ords and 

phrases defined in” WIS. STAT. § 340.01 “apply” to the provisions of 

ch. Trans 139, “unless a different definition is specified.” Rural Mutual further 

notes that none of the definitions provided in § Trans 139.02 correspond to “motor 

vehicles.” As a result, according to Rural Mutual, § Trans 139.02 directs that any 

reference to “motor vehicle” in ch. Trans 139 must match the definition in 

§ 340.01. Section 340.01 defines “motor vehicle” as “a vehicle ... which is selfpropelled, except a vehicle operated exclusively on a rail.” Sec. 340.01(35); see 

also § 340.01(74) (“‘Vehicle’ means every device in, upon, or by which any 

person or property is or may be transported or drawn upon a highway, except 

railroad trains.”). As the final step in its argument, Rural Mutual observes that our 
No. 2023AP2183

17

supreme court has concluded generally that, because tractors are self-propelled, all 

tractors are “motor vehicles” under the definitions in § 340.01(35) and (74). See 

Lemon v. Federal Ins. Co., 111 Wis. 2d 563, 565, 567, 331 N.W.2d 379 (1983)

(applying § 340.01 definitions to a “John Deere tractor with a backhoe on one end 

and a loader at the other end”).9 

¶35 To repeat, Rural Mutual’s interpretations are logical as far as they

go. But they are fatally incomplete. We conclude that the department’s 

definitions contained in WIS. ADMIN. CODE § Trans 139.02 operate within the

scope of regulatory WIS. ADMIN. CODE ch. 139, which does not apply to farm 

tractors. That is, § Trans 139.02 and its definitions are subject to the applicability 

provisions in WIS. ADMIN. CODE § Trans 139.01. Taking into account all the 

pertinent provisions, we conclude that it is not reasonable to interpret WIS. ADMIN.

CODE § Trans 139.06(3) to mean that “dealer” and “motor vehicle” encompass the 

sale of a type of vehicle (a farm tractor) that—according to § Trans 139.01 and by 

extension pertinent provisions of WIS. STAT. ch. 218—is not the subject of the 

regulations in ch. Trans 139. In arguing to the contrary, Rural Mutual emphasizes 

the conclusion of our supreme court in Lemon that the definition of “motor 

vehicle” in WIS. STAT. § 340.01 based on vehicle self-propulsion applies to all 

tractors of any kind. Thus, it appears that tractors of all types and uses are 

 

9

 The definitions of “motor vehicle” and “vehicle” in WIS. STAT. § 340.01, as it existed 

at the time Lemon was decided, are substantially similar to the current versions. See Lemon v. 

Federal Ins. Co., 111 Wis. 2d 563, 567, 331 N.W.2d 379 (1983) (“‘“Motor vehicle” means a 

vehicle which is self-propelled ....’” (quoting then § 340.01(35)); “‘“Vehicle” means every 

device in, upon or by which any person or property is or may be transported or drawn upon a 

highway....’” (quoting then § 340.01(74)). 
No. 2023AP2183

18

included wherever this § 340.01 definition squarely applies, as in Lemon itself.

10

 

But that has no solving power in this appeal. Rural Mutual fails to explain why 

the unambiguous registration-based definition in ch. 218 should not apply instead. 

¶36 Rural Mutual mistakenly asserts that WIS. ADMIN. CODE 

§ Trans 139.02 does not define “dealer,” and based on that misstep contends that

the definition of “dealer” used in WIS. STAT. § 340.01(11) applies here. If this 

were true, it would tend to support the position that the implied warranty rule in 

WIS. ADMIN. CODE § Trans 139.06(3) relies on the definition of “motor vehicles” 

in § 340.01(35): any vehicle that is self-propelled. But, as Ballweg observes and 

as noted above, § Trans 139.02(10g) does supply a definition for “‘[m]otor vehicle 

dealer’ or ‘dealer’” that traces through various cross-references to WIS. STAT.

§ 218.0101(23), not to § 340.01. Although the “dealer” definition in § 340.01(11) 

in some respects resembles part of the definition of “motor vehicle dealer” in 

§ 218.0101(23), each relies on the different definitions of “motor vehicles” 

provided in WIS. STAT. chs. 340 and 218, respectively.

¶37 Stepping back, our interpretation of “dealer” in this context has the 

effect of excluding tractors and other self-propelled vehicles that do not require

highway-use registration from the trade practice protections of WIS. ADMIN. CODE 

ch. Trans 139, including the implied warranty rule in WIS. ADMIN. CODE 

§ Trans 139.06(3). This is a result that the legislature (or the department, in its use 

of authority delegated by the legislature) can be reasonably understood to intend—

 

10

 In Lemon, a statute limiting the availability of damages due to the negligent operation 

of a state or municipal “motor vehicle” required reference to the self-propelled definition in WIS.

STAT. § 340.01(35). See Lemon, 111 Wis. 2d at 566-67 (applying WIS. STAT. § 345.05 (1975-76) 

based on definitions imported into WIS. STAT. ch. 345, from § 340.01, under WIS. STAT.

§ 345.01).
No. 2023AP2183

19

this is not an “absurd or unreasonable result[].” See Kalal, 271 Wis. 2d 633, ¶46; 

Menasha Corp., 311 Wis. 2d 579, ¶45. Whatever the potential policy 

considerations may be in favor or against the decision, the legislature can 

rationally decide that purchasers of those vehicles that must be registered for use 

on Wisconsin’s highways merit additional levels of trade practice protections, as 

opposed to purchasers of those vehicles that are exempt from registration. One 

rationale would be that vehicles that must be registered make more frequent use of 

the highways and the trade practice protections increase the level of safety of those 

vehicles joining the general public on the highways. Rural Mutual not only fails 

to engage with Ballweg’s argument regarding the applicability of ch. Trans 139, 

but it also does not present an argument undermining this bigger picture point. 

II. Ambiguity of Disclaimer

¶38 Rural Mutual argues that the warranty disclaimer in the purchase 

order is ambiguous and that this provides an alternative basis to conclude that the 

disclaimer does not exclude an implied warranty of merchantability, which would 

require the denial of Ballweg’s motion to dismiss. We provide additional 

pertinent standards and background before explaining our conclusion that the only 

reasonable interpretation of the purchase order is that it unambiguously excludes

any implied warranty of merchantability.

¶39 In interpreting the pertinent contract language, we “generally seek[] 

to give effect to the parties’ intentions” as expressed in the contract. See Tufail v. 

Midwest Hosp., LLC, 2013 WI 62, ¶25, 348 Wis. 2d 631, 833 N.W.2d 586. When

the terms of the contract are unambiguous, the terms control its interpretation. See 

id., ¶¶25-26. “‘A contract provision is ambiguous if it is fairly susceptible of more 

than one construction.’” See id., ¶27 (quoted source omitted). “Contract language 
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20

is construed according to its plain or ordinary meaning, consistent with ‘what a 

reasonable person would understand the words to mean under the circumstances.’” 

Id., ¶28 (cited and quoted authority omitted). 

¶40 Turning to additional background about the purchase order, it has the 

overall appearance of a form document. It bears the title “Purchase Order for John 

Deere Equipment (U.S. Only).” There is no dispute that the purchase order 

identifies the sale of only the following item: a 2014 model tractor manufactured

by Case (not by John Deere). The purchase order also contains a checked box 

indicating that the Case tractor is used and, under the label “Hours of Use,” states 

“583.”

¶41 The purchase order also contains the warranty disclaimer, which 

states the following, omitting bolding:

IMPORTANT WARRANTY NOTICE: The John Deere 

warranty applicable to new John Deere Equipment is 

printed and included with this document. There is no 

warranty on used equipment. The new equipment warranty

is part of this contract. Please read it carefully. YOUR 

RIGHTS AND REMEDIES PERTAINING TO THIS 

PURCHASE ARE LIMITED AS SET FORTH IN THE 

WARRANTY AND THIS CONTRACT. IMPLIED 

WARRANTIES OF MERCHANTABILITY AND 

FITNESS ARE NOT MADE AND ARE EXCLUDED 

UNLESS SPECIFICALLY PROVIDED IN THE JOHN 

DEERE WARRANTY.[11]

 

11

 All further quotation of the warranty disclaimer in the purchase order will continue to 

omit bolding and will further omit the disclaimer’s use of all-capitalized letters. There is no 

argument in this appeal that the purchase order was void or unenforceable for any reason, 

including based on its type face or formatting. See WIS. STAT. § 402.316(2) (requiring, in part, 

that written exclusions of the implied warranty of merchantability “must be conspicuous”).
No. 2023AP2183

21

Despite this reference to “the John Deere warranty,” there is no dispute that, as 

alleged in the operative complaint, no document that could be construed as a John 

Deere warranty was included with the purchase order or given to Eron at the time 

of the sale.

12

¶42 Rural Mutual does not argue that any feature of the purchase order,

apart from the disclaimer paragraph, is ambiguous or contributes to ambiguity. 

Rather, Rural Mutual argues that the following features of the disclaimer render it

ambiguous as to whether it excludes the implied warranty of merchantability:

 The disclaimer states that a warranty on “new John Deere equipment is

... included” and “part of this contract,” even though no such additional 

document was provided at the time of the sale, and even though the 

disclaimer also states that “[t]here is no warranty on used equipment.” 

 The disclaimer also states that the purchaser’s “rights and remedies ... 

are limited” by “the warranty and this contract” and that there is no 

implied warranty of merchantability “unless specifically provided in the 

John Deere warranty,” again even though no printed warranty was 

provided at the time of the sale. 

Rural Mutual asserts that, because the purchaser was not provided with a basis to 

understand what was contained in the “the John Deere warranty” referenced in the 

purchase order, there are reasonable interpretations of the purchase order under 

which the disclaimer does not exclude an implied warranty of merchantability. 

¶43 We conclude that Rural Mutual fails to establish ambiguity in the 

purchase order when it is properly interpreted as a whole and each provision is 

 

12

 Rural Mutual assails the “sales tactic” of limiting a purchaser’s rights and remedies in 

a purchase order that references, but is not accompanied by, a warranty document, asserting that 

this “should not be tolerated.” This assertion implies arguments that are not discernably 

connected to any of the three arguments that Rural Mutual raises in this appeal, and we reject it 

on that basis.
No. 2023AP2183

22

considered in context. Instead, Rural Mutual merely directs our attention to 

isolated references involving the “the John Deere warranty” that was not provided 

to Eron. See Pheasant W., LLC v. University of Wis. Med. Found., Inc., 2023 

WI App 55, ¶27, 409 Wis. 2d 539, 998 N.W.2d 600 (contracts are interpreted “‘as 

a whole, to avoid the potential for ambiguity that can result if a small part of the 

agreement is read out of context’” (quoted source omitted)).

¶44 Explaining further, the reasonable reader of the purchase order as a 

whole, including the disclaimer, would understand that, because it identified the 

only item being sold as a used tractor, and one that was not manufactured by John 

Deere, there would be “no warranty,” and the contents of a “John Deere warranty” 

would not apply to the purchase. Therefore, the absence of an additional 

document was meaningless because these references were merely relics of the fact 

that this was a form contract that was otherwise used for different types of sales.

¶45 Put differently, there was no reasonable confusion about what the 

purchase order refers to as “[t]he John Deere warranty applicable to new John 

Deere Equipment,” “printed and included with this document,” and “part of this 

contract.” This is because the only reasonable interpretation of these phrases, in 

context, is that the purchase order is a form document that was designed to 

memorialize both used and new purchases, but that in this particular case 

memorialized the sale of a used tractor. The reasonable reader would understand 

that the statement later in the disclaimer that “implied warranties of 

merchantability and fitness are not made and are excluded unless specifically 

provided in the John Deere warranty,” meant that there was no warranty of 

merchantability at all—the purchase order (“this contract”) did not contain such a 

warranty, and the purchase order provided no reason to think that a “John Deere 

warranty” document would supply one.
No. 2023AP2183

23

¶46 In sum, we conclude that the disclaimer is not ambiguous as to 

whether any implied warranty of merchantability was excluded—the purchase 

order unambiguously excluded this implied warranty.

III. Applicability of WIS. STAT. § 402.719

¶47 Although the argument is unclear, Rural Mutual contends that the 

disclaimer is invalid because what it states about the purchaser’s “rights and 

remedies” under “the warranty and this contract” rendered the purchase order 

subject to WIS. STAT. § 402.719(2). As noted, § 402.719(2) is a part of the UCC. 

It states that, when a contract provides an “exclusive or limited remedy,” and 

“circumstances cause” the remedy “to fail of its essential purpose,” then other 

provisions of the UCC may be relied on to determine the appropriate remedy. We 

now summarize the argument as we understand it. It begins by highlighting the 

language in the disclaimer that refers to the inclusion of a warranty document for 

new John Deere equipment which, as we have explained above, was obviously not 

at issue in this sale. Based on this reference, Rural Mutual argues that the 

purchase order provided the purchaser with some kind of remedies in the event of 

dissatisfaction with the transaction. Given the prospect of purchaser remedies of 

some kind, the argument proceeds, because the purchase order does not specify 

particular remedies, and because no warranty document was provided to the 

purchaser at the time of sale to fill this gap, the unspecified remedies fail of their 

essential purpose. Thus, Rural Mutual argues, under § 402.719(2) it is entitled to 

pursue UCC remedies against Ballweg (although Rural Mutual does not specify 

which UCC remedies).

¶48 We conclude that Rural Mutual’s argument fails for at least the 

reason that it ignores the fact that Rural Mutual has pursued only one claim here: 
No. 2023AP2183

24

breach of an implied warranty of merchantability. Rural Mutual does not explain 

how an issue involving potential remedies that Rural Mutual might be able to 

obtain, presumably if it had pursued different causes of action than the implied 

warranty breach that it actually did pursue, prevents dismissal of the specific cause 

of action that it has pursued.

¶49 This fundamental problem comes into sharp focus when one 

compares the difference between an agreement to limit purchaser remedies, which 

is related to the topic of WIS. STAT. § 402.719(2), and an agreement to exclude 

warranties, such as the disclaimer here. As Ballweg notes, our supreme court has 

explained the following regarding the difference between exclusions of warranties 

and limitations on purchaser remedies. “Under the [UCC], a seller of goods may 

limit [the seller’s] contractual liability in two ways.” Murray v. Holiday Rambler, 

Inc., 83 Wis. 2d 406, 414, 265 N.W.2d 513 (1978). The seller “may limit the 

buyer’s remedies for a breach of warranty, pursuant to [§] 402.719” or it “may 

disclaim or limit [the seller’s] warranties, pursuant to [WIS. STAT. §] 402.316.” 

See id. “These methods are closely related, and in many cases their effect may be 

substantially identical. Conceptually, however, they are distinct.” Id. (citations 

omitted). “A limitation of remedies ... restricts the remedies available to the 

buyer once a breach is established.” Id. “A disclaimer of warranties,” in contrast,

“limits the seller’s liability by reducing the number of circumstances in which the 

seller will be in breach of the contract; it precludes the existence of a cause of 

action.” Id. 

¶50 Bearing this distinction in mind, Rural Mutual fails to explain how

the topic of remedies being inadequately alluded to in the purchase order could 

shed light on the meaning or applicability of the disclaimer here. We have 

explained above why we reject Rural Mutual’s argument that the disclaimer is 
No. 2023AP2183

25

ambiguous. In the words of Murray, here the effect of the disclaimer of the 

implied warranty of merchantability is that the purchase order “precludes the 

existence of a cause of action” based on the implied warranty of merchantability. 

See Murray, 83 Wis. 2d at 414. This is precisely the cause of action that Rural 

Mutual brought against Ballweg in the operative complaint.

¶51 Put differently, Rural Mutual fails to show how WIS. STAT.

§ 402.719(2) could apply here to allow Rural Mutual to pursue remedies against 

Ballweg for a breach of a warranty that is excluded for reasons we have explained 

above. Whatever effect the reference to “right and remedies” that is made in the 

disclaimer might have in other circumstances, involving other kinds of claims, 

Rural Mutual does not provide a legally supported argument that establishes a 

basis to reverse the dismissal of Ballweg from this action on a claim of a breach of 

an implied warranty of merchantability. 

CONCLUSION

¶52 For all of these reasons, we affirm the circuit court’s order granting 

Ballweg’s motion to dismiss.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.