Amjad T. Tufail v. Midwest Hospitality, LLC ( 2013 )


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    2013 WI 62
    SUPREME COURT            OF   WISCONSIN
    CASE NO.:               2011AP1451
    COMPLETE TITLE:         Amjad T. Tufail,
    Plaintiff-Respondent-Petitioner,
    v.
    Midwest Hospitality, LLC, d/b/a Midwest
    Hospitality (WI),
    LLC,
    Defendant-Appellant,
    Aslam Khan, d/b/a Midwest Hospitality,
    Defendant.
    REVIEW OF A DECISION OF THE COURT OF APPEALS
    Reported at 
    344 Wis. 2d 297
    , 
    821 N.W.2d 412
    (Ct. App. 2012 – Unpublished)
    OPINION FILED:          July 10, 2013
    SUBMITTED ON BRIEFS:
    ORAL ARGUMENT:          April 11, 2013
    SOURCE OF APPEAL:
    COURT:               Circuit
    COUNTY:              Milwaukee
    JUDGE:               William S. Pocan
    JUSTICES:
    CONCURRED:
    DISSENTED:           PROSSER, J., dissents. (Opinion filed.)
    NOT PARTICIPATING:
    ATTORNEYS:
    For the plaintiff-respondent-petitioner, there were briefs
    by Douglas W. Rose, Lora L. LoCoco, and Rose & deJong, S.C.,
    Milwaukee, and oral argument by Douglas W. Rose.
    For        the   defendant-appellant,    there   was   a   brief   by
    Christopher T. Hale, Andrew G. Frank, and Hale and Wagner, S.C.,
    Milwaukee, and oral argument by Christopher T. Hale.
    
    2013 WI 62
    NOTICE
    This opinion is subject to further
    editing and modification.   The final
    version will appear in the bound
    volume of the official reports.
    No.    2011AP1451
    (L.C. No.   2009CV13848)
    STATE OF WISCONSIN                               :            IN SUPREME COURT
    Amjad T. Tufail,
    Plaintiff-Respondent-Petitioner,
    v.
    Midwest Hospitality, LLC, d/b/a Midwest
    FILED
    Hospitality (WI), LLC,
    JUL 10, 2013
    Defendant-Appellant,
    Diane M. Fremgen
    Clerk of Supreme Court
    Aslam Khan, d/b/a Midwest Hospitality,
    Defendant.
    REVIEW of a decision of the Court of Appeals.                     Reversed and
    remanded.          The   judgment    of   the   circuit        court     is    thereby
    affirmed.
    ¶1     ANN     WALSH    BRADLEY,    J.    This     is    a    review         of   an
    unpublished opinion of the court of appeals, which reversed the
    circuit     court's      judgment   awarding    damages       in   favor      of    Amjad
    Tufail (Tufail).         The case before us involves a contract dispute
    No.    2011AP1451
    between        the     landlord,                Tufail,         and        the     tenant,        Midwest
    Hospitality,          LLC       (Midwest         Hospitality)              over    the    terms      of   a
    commercial lease of property.1
    ¶2     Tufail,          the       petitioner,           asserts      that       the     court     of
    appeals       erred    when          it    determined           that       Midwest       Hospitality's
    early        termination         of       the     lease         was    justified          by    Tufail's
    misrepresentation.                   Although       he         acknowledges         that       the   lease
    unambiguously provides a representation that Midwest Hospitality
    may    not     be     prevented            from    using         the       property       for     certain
    specified purposes, Tufail argues that operation of a fast-food
    restaurant with a drive-through is not among the purposes listed
    in    the     lease.            He    further          asserts        that        all    of    the    uses
    identified in the lease are permitted uses of the premises under
    the City of Milwaukee zoning code.
    ¶3       Additionally, Tufail contends that the representation
    was not false given that the City of Milwaukee granted a special
    use     permit       allowing             the    operation            of    a     Church's        Chicken
    restaurant, including the operation of a Church's Chicken fast-
    food restaurant with a drive-through.
    ¶4       We conclude that the representation does not include
    any     use     of    the       property          as       a    Church's          Chicken      fast-food
    restaurant       with       a    drive-through.                  Additionally,            there      is   no
    indication that any of the uses identified in the lease were
    prevented under the City of Milwaukee zoning code.
    1
    Tufail v. Midwest Hospitality, LLC, No. 2011AP1451,
    unpublished slip op. (Ct. App. Aug. 1, 2012), reversing the
    circuit court, William S. Pocan, J., presiding.
    2
    No.     2011AP1451
    ¶5     We further conclude that the representation was not
    false because the circuit court found that Midwest Hospitality
    was not prevented from using the property for the uses specified
    in   the       lease,     and   its   finding     is   not   clearly      erroneous.
    Therefore, Tufail did not breach the lease.                       Accordingly, we
    reverse the court of appeals and remand, and the judgment of the
    circuit court is thereby affirmed.
    I
    ¶6     The contract dispute in this case concerns the terms
    of   a       commercial   lease   for   a   property    located    on     West    North
    Avenue in Milwaukee, Wisconsin.                 Tufail had previously operated
    a restaurant called "New York Chicken" on the property before
    leasing the property to Midwest Hospitality.2
    ¶7     After     purchasing    the      property    in    2000,         Tufail
    submitted a request to the City of Milwaukee Development Center
    for a permit to operate a fast-food restaurant.                   His application
    was denied, but Tufail appealed to the City of Milwaukee Board
    of Zoning Appeals.              On November 9, 2000, the Board of Zoning
    Appeals granted Tufail's request for a permit to operate a fast-
    food restaurant for a ten-year period.                  Under the terms of the
    permit, the New York Chicken restaurant was allowed to remain
    open until 4:00 a.m.
    ¶8     Sometime before the New York Chicken restaurant ceased
    operations in 2007 and again after operations ceased, Midwest
    2
    Tufail described the New York Chicken restaurant as "a
    chicken place" that was similar in nature to a Church's Chicken
    restaurant but with a different name.
    3
    No.    2011AP1451
    Hospitality    approached     Tufail    and     inquired   about       opening    a
    Church's    Chicken     restaurant      on    the    property.         Prior     to
    negotiating the lease, Midwest Hospitality visited the former
    New York Chicken restaurant and conducted a walk-through of the
    property.      It then prepared a written lease and the parties
    negotiated its terms.
    ¶9     Tufail and Midwest Hospitality formally executed the
    lease in March 2008.         It was to be in effect for a five-year
    period beginning on April 1, 2008 and ending on March 31, 2013.
    Midwest Hospitality agreed to pay rent in the amount of $35,000
    for the first year, which was to be paid in equal installments
    on a monthly basis.
    ¶10    Paragraph    5   of   the       lease   specified    the     intended
    purposes for which the property may be used:
    5. Use of Premises.     Tenant may use and occupy the
    Premises for any lawful purposes, including, but not
    limited   to, the    retail   sales, consumption, and
    delivery of food and beverages which shall include,
    but not be limited to, Chicken products, Fish
    products, bread products, salads, sandwiches, dessert
    items, promotional items, and any other items sold by
    any Church's Chicken store.
    Tufail also made representations in Paragraph 33 of the lease,
    which provide as follows, in relevant part:
    Landlord represents and warrants to Tenant that:
    . . . .
    (g) no existing restrictions, building and zoning
    ordinances, or other laws or requirements of any
    governmental authority prevent the use of the Premises
    for the purposes set forth in Paragraph 5 . . . .
    4
    No.     2011AP1451
    Landlord hereby acknowledges that Tenant is relying
    upon   all  of   the   foregoing  representations  and
    warranties in executing this Lease and that matters so
    represented and warranted are material ones, and
    Landlord accordingly agrees that any misrepresentation
    or breach of such warranty will be reason for Tenant
    to terminate this Lease.
    Furthermore, the lease contained an integration clause providing
    that   the   written   lease   set    forth      all   understandings    between
    Tufail and Midwest Hospitality:
    This Lease, the exhibits, rider and addendum, if any,
    attached hereto and forming a part hereof set forth
    all the covenants, promises, agreements, conditions,
    terms, provisions and understandings by and between
    the Landlord and Tenant concerning the Premises.
    There are no other such matters, whether oral or
    written, between Landlord and Tenant other than are
    set   forth   herein.      No   change,  modification,
    alteration, amendment, addition or deletion to this
    Lease shall be binding upon Landlord or Tenant unless
    it is in writing and executed by the person to be so
    charged with the same.      Landlord and Tenant have
    negotiated the terms of this Lease; therefore, this
    Lease shall not be interpreted or construed against or
    in favor of any party.
    ¶11   After   the   lease    was       executed,   Midwest   Hospitality
    entered the property and began renovation.                  It completed some
    initial preparation work, but did not ultimately complete the
    renovations.
    ¶12   The renovation work ended in May 2008 when Midwest
    Hospitality was informed that it needed to obtain a special use
    permit in order to operate a fast-food restaurant with a drive-
    through at the property.           A special use permit is a particular
    type of permit required by the City of Milwaukee in order to use
    a property for certain purposes under the zoning code.                  Although
    5
    No.    2011AP1451
    a sit-down restaurant3 is classified as a "Permitted Use," a
    fast-food restaurant4 is classified as a "Limited Use" requiring
    a special use permit.
    ¶13    Upon being advised of the permit requirement, Midwest
    Hospitality     applied       for   a   special      use     permit        to     operate    a
    Church's Chicken fast-food restaurant with a drive-through on
    the   property.        The    application      was     met          with   opposition       by
    community     groups        that    opposed    adding           a       Church's    Chicken
    restaurant to the neighborhood.5
    ¶14    Despite the opposition, the City of Milwaukee Board of
    Zoning      Appeals        ultimately     approved         Midwest          Hospitality's
    application    for     a    special     use   permit       in       a   written    decision
    issued on September 22, 2008.             The special use permit was issued
    3
    A "sit-down restaurant" is defined in the zoning code as
    "a restaurant where the food or beverages sold are consumed at
    tables located on the premises, where taking food or beverages
    from the premises is purely incidental, where food or beverages
    are normally served utilizing nondisposable containers and
    utensils and where the consumption of food or beverages in
    vehicles on the premises in which the building is located does
    not regularly occur . . . ."
    4
    A "restaurant, fast-food/carryout" is defined in the
    zoning code as "a restaurant other than a sit-down restaurant
    where the manner of preparation, packaging and serving of food
    or beverages encourages their consumption outside the building."
    5
    Midwest   Hospitality    in  its    brief  describes  those
    individuals or groups opposing its application as "neighbors,
    physicians, Walnut     Way   Conservation   Corporation   (a local
    neighborhood   association)     and   even    a   Wisconsin  State
    Representative."
    6
    No.     2011AP1451
    subject to certain conditions, which are set forth in relevant
    part as follows:
    10. That this use, both fast-food/carry-out and drive-
    through, closes by 9:00 p.m.
    11. That this Special Use is granted for a period of
    one (1) year, commencing with the date hereof.
    At trial, a Midwest Hospitality representative testified that
    the conditions in the special use permit changed the business's
    profitability forecast and rendered the operation of a Church's
    Chicken restaurant on the property not worth the investment:
    Q. And now could you have run the Church's Chicken at
    1635 West North with restrictions on the evening hours
    to 9:00 p.m. and a new review by [the Board of Zoning
    Appeals] every year?
    A. No way. It would just be impossible. It wouldn't
    even be worth the investment. . . . [The 9:00 closing
    restriction] changed our forecast that we had in mind
    for the profitability of this business . . . .
    ¶15   After    the    special   use   permit   was   approved,    Midwest
    Hospitality notified Tufail that it would stop paying rent.                  It
    sent a letter to Tufail arguing that it was not responsible for
    the lease payments because a special use permit was required to
    operate a Church's Chicken fast-food restaurant with a drive-
    through.    It     therefore    contended    that   Tufail   made     a   false
    representation and that it was entitled to terminate the lease
    before the five-year term expired.
    ¶16    Tufail, in turn, commenced the present action.                    He
    alleged a breach of contract claim, an anticipatory breach of
    contract claim, and a claim for breach of the duty of good faith
    and fair dealing.         Midwest Hospitality later pled counterclaims
    7
    No.    2011AP1451
    alleging a breach of contract, deceptive advertising contrary to
    Wis. Stat. § 100.18 (2009-10), and unjust enrichment.
    ¶17    The    circuit    court    presided      over     a    three-day        bench
    trial, which took place in March 2011.                At the conclusion of the
    trial, the circuit court made findings of fact relating to the
    claims     advanced    in    the   pleadings.      It       found   that       the   "vast
    majority     of    Church's    Chicken       restaurants       have      drive-through
    operations, but not all."             Additionally, "Midwest Hospitality's
    application for a special use permit to use the subject property
    for a fast-food restaurant with a drive-through was approved by
    the City of Milwaukee," and it was not "prevent[ed], in any way,
    [] from opening a Church's Chicken restaurant at the subject
    property with a drive-through and as a fast food restaurant."6
    ¶18    Turning to examine the text of the lease, the circuit
    court determined that it unambiguously failed to set forth any
    use   as    a     fast-food    restaurant      with     a    drive-through.             It
    concluded that "Midwest Hospitality was able to use the subject
    property     for    its    intended    use   as   set   forth       in    the    lease."
    Furthermore, it determined that "even if the subject lease was
    interpreted to include as an intended use a fast food restaurant
    with a drive-through, that intended use was allowed by the City
    of Milwaukee."            Ultimately, there was "no evidence presented
    that [Tufail's] representations and warranties were not true."
    6
    Additional discussion of the circuit court's findings of
    fact may be found at ¶¶39-41, infra.
    8
    No.    2011AP1451
    ¶19   Because Tufail did not breach the lease, the circuit
    court concluded that Midwest Hospitality's early termination of
    the lease was itself a breach of contract.                          It proceeded to
    enter a judgment awarding Tufail $90,033.21 in damages.
    ¶20   Midwest Hospitality appealed and the court of appeals
    reversed the circuit court.               Tufail v. Midwest Hospitality, LLC,
    No. 2011AP1451, unpublished slip op. (Ct. App. Aug. 1, 2012).
    It   concluded     that    the    "early        termination    of    the    lease    was
    justified by Tufail's misrepresentation," stating that Tufail's
    representation      that      "no        zoning     laws     restricting      [Midwest
    Hospitality's]      operation          of   a     Church's     Chicken       fast-food
    restaurant on the leased premises" was "false from the moment
    the parties signed the lease."              Id., ¶¶1, 9.
    ¶21   The court of appeals rejected Tufail's argument that
    he did not make a false representation because the lease does
    not set forth a use as a fast-food restaurant with a drive-
    through.    Id., ¶8.        It concluded that by reference to "Church's
    Chicken," Paragraph 5 of the lease "allowed the operation as a
    Church's Chicken" and that it was "not necessary for the use
    provision   in     the    lease     to    include      additional    words    allowing
    operation of a fast-food restaurant.                    A Church's Chicken is a
    fast-food restaurant."           Id.
    II
    ¶22   This    case    requires        us    to   determine     whether      Tufail
    breached    the    lease,    a    written        contract,    by    making    a    false
    representation.          The interpretation of a contract presents a
    9
    No.      2011AP1451
    question        of     law,     which       we    determine            independently           of     the
    conclusions          rendered       by     the    circuit         court       and    the      court    of
    appeals.        Ehlinger v. Hauser, 
    2010 WI 54
    , ¶47, 
    325 Wis. 2d 287
    ,
    ¶47, 
    785 N.W.2d 328
    .
    ¶23     Here,    the       circuit       court       presided         over    a     three-day
    bench trial and made findings of fact.                                 We accept the circuit
    court's       findings        of    fact    unless       they      are    clearly          erroneous.
    Phelps v. Physicians Ins. Co. of Wisconsin, Inc., 
    2009 WI 74
    ,
    ¶34, 
    319 Wis. 2d 1
    , 
    768 N.W.2d 615
    .
    III
    ¶24     The    sole        question      presented          on    review         is     whether
    Tufail breached the lease by making a false representation.                                           The
    lease      is   a     written       contract      and       our    analysis         is     controlled
    entirely by well-established canons of contract interpretation.
    Accordingly, as a preface to addressing the question presented,
    it   is    helpful       to    review       those      basic       principles         of      contract
    interpretation relevant to the issue before us.
    ¶25       Contract interpretation generally seeks to give effect
    to   the      parties'       intentions.              Seitzinger         v.    Community        Health
    Network,        
    2004 WI 28
    ,     ¶22,       
    270 Wis. 2d
         1,    
    676 N.W.2d 426
    .
    However,        "subjective         intent       is    not    the      be-all       and       end-all."
    Kernz v. J.L. French Corp., 
    2003 WI App 140
    , ¶9, 
    266 Wis. 2d 124
    , 
    667 N.W.2d 751
    .                     Rather, "unambiguous contract language
    controls contract interpretation."                       Id.
    ¶26     Where     the        terms       of     a     contract          are        clear      and
    unambiguous, we construe the contract according to its literal
    10
    No.     2011AP1451
    terms.       Maryland Arms Ltd. Partnership v. Connell, 
    2010 WI 64
    ,
    ¶23, 
    326 Wis. 2d 300
    , 
    786 N.W.2d 15
     (quoting Gorton v. Hostak,
    Henzl & Bichler, S.C., 
    217 Wis. 2d 493
    , 506, 
    577 N.W.2d 617
    (1998)).       "We presume the parties' intent is evidenced by the
    words they chose, if those words are unambiguous."                          Kernz, 
    266 Wis. 2d 124
    , ¶9.
    ¶27    If the terms of the contract are ambiguous, evidence
    extrinsic to the contract itself may be used to determine the
    parties' intent.         Seitzinger, 
    270 Wis. 2d
     1, ¶22.                  "A contract
    provision is ambiguous if it is fairly susceptible of more than
    one construction."            Mgm't Computer Servs., Inc. v. Hawkins, Ash,
    Baptie & Co., 
    206 Wis. 2d 158
    , 177, 
    557 N.W.2d 67
     (1996).
    ¶28    Contract language is construed according to its plain
    or ordinary meaning, Huml v. Vlazny, 
    2006 WI 87
    , ¶52, 
    293 Wis. 2d
       169,    
    716 N.W.2d 807
    ,   consistent     with    "what    a     reasonable
    person       would     understand      the     words    to     mean         under   the
    circumstances."        Seitzinger, 
    270 Wis. 2d
     1, ¶22.               For a business
    contract, that is "the manner that it would be understood by
    persons in the business to which the contract relates." Columbia
    Propane, L.P. v. Wisconsin Gas Co., 
    2003 WI 38
    , ¶12, 
    261 Wis. 2d 70
    , 
    661 N.W.2d 776
    .
    ¶29    The court construes contracts "as they are written."
    Id., ¶12.       Ultimately, "the office of judicial construction is
    not to make contracts . . . but to determine what the parties
    contracted to do."            Marion v. Orson's Camera Centers, Inc., 
    29 Wis. 2d
        339,     345,    
    138 N.W.2d 733
       (1966)   (quoting        Wisconsin
    11
    No.     2011AP1451
    Marine & Fire Ins. Co. Bank v. Wilkin, 
    95 Wis. 111
    , 115, 
    69 N.W. 354
     (1897).
    ¶30    Additionally,        as    this    court   recently    stated,        courts
    may not consider evidence of prior or contemporaneous oral or
    written agreements between the parties if a contract is fully
    integrated:
    A contract that represents the final and complete
    expression of the parties' agreement is considered
    fully "integrated." If the contract is integrated,
    absent the existence of fraud, duress, or mutual
    mistake, the court construing the contract may not
    consider evidence of any prior or contemporaneous oral
    or written agreement between the parties.
    Town Bank v. City Real Estate Development, LLC, 
    2010 WI 134
    ,
    ¶37, 
    330 Wis. 2d 340
    , 
    793 N.W.2d 476
    .                       If a contract contains
    "an   unambiguous          merger    or    integration      clause,    the     court      is
    barred from considering evidence of any prior or contemporaneous
    understandings or agreements between the parties, even as to the
    issue     of    integration."             Id.,    ¶39;    Peterson    v.    Cornerstone
    Property Development, LLC, 
    2006 WI App 132
    , ¶31, 
    294 Wis. 2d 800
    , 
    720 N.W.2d 716
     (quoting Ziegler Co. v. Rexnord, Inc., 
    139 Wis. 2d 593
    , 608-09 n.11, 
    407 N.W.2d 873
     (1987)) (courts may not
    consider extrinsic evidence to "vary or contradict the terms of
    a writing" when the contract is fully integrated).
    ¶31    In   this    case,    as    quoted    above,    the    lease     at issue
    contains       an   integration      clause.        It    states     that     the    entire
    agreement between the parties has been reduced to writing.                                It
    plainly        states      without        qualification      that     "all"         of   the
    understandings between the parties are set forth in the lease
    12
    No.   2011AP1451
    and any attached exhibits, riders, or addendums.                          Therefore, we
    are guided by the text of the lease, not by any extrinsic,
    unwritten      understandings         that    may    have    existed       between    the
    parties.7       Id.; Peterson, 
    294 Wis. 2d 800
    , ¶31 (quoting Ziegler
    Co., 139 Wis. 2d at 608-09 n.11).
    ¶32      Having     reviewed     the        relevant   canons        of   contract
    interpretation, we turn now to address the question of whether
    Tufail breached the lease by making a false representation.                           Our
    inquiry hinges first on the meaning of Tufail's representation
    as   it   is    written    in   the    lease,       and   second,    on    whether    the
    representation      is     false   under      the    facts   of     this    case.     The
    representation states as follows:
    Landlord represents and warrants to Tenant that:
    . . . .
    7
    Contrary to the unambiguous integration clause, Midwest
    Hospitality urges us to consider the parties' unwritten
    "understanding of Church's Chicken" as a fast-food restaurant.
    It contends that "Church's Chicken was understood to be a fast-
    food restaurant by all parties," and that understanding is
    "inherent in interpreting [the lease's references to] 'Church's
    Chicken' . . . regardless of the absence of 'fast-food' in the
    Use of Premises provision." In effect, it contends that "there
    is no such thing" as a sit-down Church's Chicken restaurant.
    Here, however, the parties have expressly stated that
    "[t]his Lease . . . set[s] forth all the . . . understandings by
    and between the Landlord and Tenant concerning the Premises."
    In light of the parties' unambiguous statement that no
    additional understandings existed between them concerning the
    lease,   we    decline    to  consider   Midwest   Hospitality's
    "understanding of Church's Chicken" as a particular type of
    fast-food restaurant when such an understanding is not presented
    in the text of the lease.
    13
    No.   2011AP1451
    (g) no existing restrictions, building and zoning
    ordinances, or other laws or requirements of any
    governmental authority prevent the use of the Premises
    for the purposes set forth in Paragraph 5 . . . .
    Paragraph 5 of the lease, in turn, provides that:
    5.   Use of Premises.    Tenant may use and occupy the
    Premises for any lawful purpose, including, but not
    limited   to, the    retail   sales,  consumption, and
    delivery of food and beverages which shall include,
    but not be limited to, Chicken products, Fish
    products, bread products, salads, sandwiches, dessert
    items, promotional items, and any other items sold by
    any Church's Chicken store.
    ¶33    Tufail       acknowledges          that     the           lease       unambiguously
    provides      that    Midwest      Hospitality          may    not          be    prevented       from
    using the property for certain specified purposes.                                   He advances,
    however, that a fast-food restaurant with a drive-through is not
    among the "purposes set forth in Paragraph 5."                                    Furthermore, he
    asserts      that    all    of    the    uses     identified            in       Paragraph    5   are
    permitted      uses    of    the       premises      under     the          City    of    Milwaukee
    zoning code.         Given that the City of Milwaukee granted a special
    use    permit       allowing       the    operation           of        a    Church's        Chicken
    restaurant, including the operation of a Church's Chicken fast-
    food   restaurant          with    a    drive-through,             he       contends      that    the
    representation was not false.
    ¶34    Midwest        Hospitality             likewise               acknowledges          the
    unambiguous text of the lease, but further argues that the lease
    14
    No.   2011AP1451
    incorporates the fact that "Church's Chicken was understood to
    be a fast-food restaurant by all parties."8
    ¶35       We construe the contract as it is clearly written.
    Midwest Hospitality may not be prevented from using the property
    for    the       purposes      specifically     identified     in    Paragraph    5.
    Paragraph 5 then identifies the various products which may be
    consumed, sold, distributed, or otherwise used on the property.
    ¶36       Among   the    products   identified    in     Paragraph     5   is
    counted "any other items sold by any Church's Chicken store."
    Midwest Hospitality argues, and the court of appeals concluded,
    that       the   reference     to   a   "Church's   Chicken"    in    Paragraph    5
    requires that a Church's Chicken fast-food restaurant with a
    drive-through may be operated on the property.                      We reject that
    argument.
    8
    Tufail states in his brief that "[t]he lease is
    unambiguous," while Midwest Hospitality argues that Tufail
    "unambiguously warrantied that there were no zoning restrictions
    preventing . . . the contemplated use of the Property."    Their
    respective "unambiguous" constructions of the lease diverge
    greatly in scope.
    That   the  parties   have  construed   the   representation
    differently does not alone render it ambiguous.      Ambiguity is
    found where a contract "is fairly susceptible of more than one
    construction," not necessarily where different constructions are
    argued.   Mgm't Computer Servs., Inc. v. Hawkins, Ash, Baptie &
    Co., 
    206 Wis. 2d 158
    , 177, 
    557 N.W.2d 67
     (1996).          We must
    interpret the lease "as it stands, even though the parties may
    have placed a different construction on it."      Cernohorsky v.
    Northern Liquid Gas Co., 
    268 Wis. 586
    , 593, 
    68 N.W.2d 429
    (1955); see also Brew City Redevelopment Group, LLC v. The
    Ferchill Group, 
    2006 WI App 39
    , ¶3, 
    289 Wis. 2d 795
    , 
    714 N.W.2d 582
    .
    15
    No.    2011AP1451
    ¶37   A    mere   reference    to   products         used   by    a    "Church's
    Chicken store" does not represent that Midwest Hospitality may
    operate a Church's Chicken fast-food restaurant with a drive-
    through.      The lease plainly provides that Midwest Hospitality
    may   not   be   prevented    from   using         the    property     for    certain,
    specified    purposes.        Notably     absent         from   that   list    is   any
    requirement      that   the   property       may    be     used   as    a    fast-food
    restaurant with a drive-through.9
    ¶38   Accordingly, we conclude that Tufail's representation
    requires simply that Midwest Hospitality may not be prevented
    from using the property for the purposes specifically identified
    in Paragraph 5.         Having ascertained the plain meaning of the
    representation, all that remains is to determine whether the
    representation is false under these facts.
    9
    Likewise, the lease does not set forth any requirements
    regarding the conditions specified in the special use permit
    relating to the hours of operation or the time period in which
    any permit must be renewed. Despite the lack of reference to a
    fast-food restaurant or to the conditions set forth in the
    special use permit, the dissent interprets the lease to mean
    that Tufail "warrant[ied] that there were no zoning requirements
    with which Midwest had to comply in order to sell Church's
    Chicken products in a fast-food restaurant." Dissent, ¶78; see
    also dissent, ¶¶94, 101.
    In relying on words that cannot be found in the lease, the
    dissent appears to rewrite it. The representation in the lease
    simply states that no existing restrictions, building and zoning
    ordinances, or other laws or requirements prevent Midwest
    Hospitality from using the property for the purposes identified
    in Paragraph 5.    It focuses on whether Midwest Hospitality is
    prevented from using the property for certain purposes, not on
    whether   Midwest   Hospitality had   to  comply   with  various
    governmental regulations.
    16
    No.    2011AP1451
    ¶39     In    this     case,    the     circuit     court       made     extensive
    findings of fact at the conclusion of a three-day bench trial.
    It     found      that   "[t]he       vast    majority       of    Church's      Chicken
    restaurants have drive-through operations, but not all."                            There
    was "no evidence" showing that Tufail knew about the many other
    Church's Chicken restaurants, whether or not they had drive-
    through        operations,       or    about       Church's       Chicken       franchise
    requirements such as closing times.
    ¶40     The circuit court also found that the parties "entered
    into a written lease in March of 2008," which was, by its own
    terms, to last for a five-year period.                         After the lease was
    signed      and     Midwest    Hospitality        took   occupancy,      it    discovered
    that    a    special     use    permit       was    required      from   the     City   of
    Milwaukee "so that it could have a drive-through as part of the
    restaurant."
    ¶41     Furthermore,      the    circuit      court     found     that    "Midwest
    Hospitality's application for a special use permit to use the
    subject property for a fast food restaurant with a drive-through
    was approved by the City of Milwaukee."                        Although it observed
    that the approval "was not exactly as Midwest Hospitality may
    have wanted" due to the conditions in the special use permit, it
    found that Midwest Hospitality was not prevented, "in any way,
    [] from opening a Church's Chicken restaurant at the subject
    property."          The special use permit allowed operation "with a
    drive-through and as a fast food restaurant":
    But the special use permit as approved by the City of
    Milwaukee did not prevent, in any way, Midwest
    17
    No.    2011AP1451
    Hospitality from opening a Church's Chicken restaurant
    at the subject property with a drive-through and as a
    fast food restaurant. Therefore, the Court finds that
    even if the subject lease was interpreted to include
    as an intended use a fast food restaurant with a
    drive-through, that intended use was allowed by the
    City of Milwaukee. The representations and warranties
    of Mr. Tufail contained in the lease itself are for
    the intended use as specifically set forth in the
    lease in paragraph five, and there was no evidence
    presented that those representations and warranties
    were not true.
    Accordingly, the circuit court determined that "the claim that
    Mr. Tufail made misrepresentations was not established."
    ¶42    No one argues that the findings of the circuit court,
    to the extent that they set forth the dispositive facts of this
    case, are clearly erroneous.                 Phelps, 
    319 Wis. 2d 1
    , ¶34.                   We
    likewise         see    no    indication    that     its    findings        are    clearly
    erroneous.         Therefore, we are bound to accept those findings,
    including the circuit court's finding that Midwest Hospitality
    was   not    in        fact   prevented    from    opening     a   Church's         Chicken
    restaurant at the subject property.
    ¶43        Given the lack of any reference in the lease to a
    fast-food         restaurant      with      a    drive-through,        there        is     no
    indication in the facts that the uses of the property, as they
    are stated in Paragraph 5 of the lease, were prevented.                              There
    is no indication that any of the uses specified in Paragraph 5
    cannot      be    performed      at   a    sit-down    restaurant,          which     is    a
    permitted use under the City of Milwaukee zoning code.                             Rather,
    the fact         that    Midwest Hospitality         was    granted    a     special use
    permit specifically allowing use of the property as a Church's
    Chicken     restaurant         soundly     refutes    the    premise       that    Midwest
    18
    No.    2011AP1451
    Hospitality was prevented from using the property for any of the
    purposes stated in Paragraph 5.
    ¶44    We further observe that even if we accepted Midwest
    Hospitality's          argument         that      there         is    an     "undisputed
    understanding         of   Church's     Chicken"      as    a   fast-food        restaurant
    with a drive-through and that the representation incorporates
    that "undisputed understanding," the representation is still not
    false under these facts.               The circuit court expressly found that
    when     the    special     use    permit      was    granted        by    the    City   of
    Milwaukee, Midwest Hospitality was allowed to operate a Church's
    Chicken fast-food restaurant with a drive-through.
    ¶45    The facts of this case indicate that although Midwest
    Hospitality was not prevented from using the property for the
    purposes identified in Paragraph 5 of the lease, those purposes
    alone    did    not    necessarily       ensure      that   the      proposed     Church's
    Chicken restaurant was worth Midwest Hospitality's investment.
    However, as the circuit court observed, "[t]here was nothing to
    prevent Midwest Hospitality from putting contingencies in the
    lease about hours of operation, a drive-through or anything else
    deemed necessary.           It did not."         We interpret only the contract
    to which the parties agreed.              Marion, 
    29 Wis. 2d
     at 345.
    ¶46 Ultimately, the result of this case is compelled by
    basic principles of contract interpretation and by the circuit
    court's       findings     of   fact    following      a    three-day      bench    trial.
    Tufail explicitly represented in paragraph 33 of the lease that
    19
    No.        2011AP1451
    Midwest       Hospitality        would    not        be   prevented        from        using      the
    property for the listed purposes.
    ¶47       The circuit court found that there was no evidence to
    support       the     argument    that        the     representations               were    untrue.
    Additionally,          it     found      that        Midwest       Hospitality             was    not
    prevented       "in     any      way"     from        opening        a    Church's          Chicken
    restaurant at the leased property.
    •    "The    representations           and      warranties           of    Mr.     Tufail
    contained in the lease itself are for the intended use
    as specifically set forth in the lease in paragraph
    five, and there was no evidence presented that those
    representations and warranties were not true."
    •    "[T]he special use permit as approved by the City of
    Milwaukee       did      not     prevent,        in       any    way,        Midwest
    Hospitality from opening a Church's Chicken restaurant
    at the subject property with a drive-through and as a
    fast food restaurant."
    ¶48       Importantly, the circuit court specifically found that
    even if the lease was interpreted to include uses not explicitly
    listed    in    its     terms——uses       as     a    fast-food          restaurant         with    a
    drive-through——that the evidence showed that such uses were not
    prevented.
    •    "Therefore, the Court finds that even if the subject
    lease was interpreted to include as an intended use a
    fast     food     restaurant           with     a     drive-through,              that
    intended use was allowed by the City of Milwaukee."
    20
    No.     2011AP1451
    ¶49     There has been no showing that the circuit court's
    dispositive findings of fact are clearly erroneous.                       No party
    has even attempted to advance such an argument.                 Accordingly, we
    conclude that Tufail did not breach the lease by making a false
    representation.
    IV
    ¶50     In sum, we conclude that the representation does not
    include any use of the property as a Church's Chicken fast-food
    restaurant    with   a   drive-through.          Additionally,       there   is   no
    indication that any of the uses identified in the lease were
    prevented under the City of Milwaukee zoning code.
    ¶51    We further conclude that the representation was not
    false because the circuit court found that Midwest Hospitality
    was not prevented from using the property for the uses specified
    in   the   lease,    and   its    finding    is     not   clearly       erroneous.
    Therefore, Tufail did not breach the lease.                     Accordingly, we
    reverse the court of appeals and remand, and the judgment of the
    circuit court is thereby affirmed.
    By    the   Court.—The   decision      of    the   court   of      appeals   is
    reversed and remanded.           The judgment of the circuit court is
    thereby affirmed.
    21
    No.       2011AP1451.dtp
    ¶52      DAVID    T.    PROSSER,       J.      (dissenting).              Amjad       Tufail
    (Tufail) and Midwest Hospitality, LLC (Midwest) entered into a
    lease in which Tufail unambiguously warranted that there were no
    local ordinances that would prevent Midwest from operating a
    fast-food Church's Chicken restaurant on Tufail's property.                                   The
    majority       opinion    concludes         that     Tufail     did      not       breach     this
    warranty because the lease did not define "Church's Chicken" as
    a fast-food restaurant.              However, the only reasonable meaning of
    "Church's Chicken" is a fast-food restaurant.
    ¶53      Even if the lease were deemed ambiguous, the extrinsic
    evidence       demonstrates       that      Church's     Chicken          is       a     fast-food
    restaurant, and both parties were aware of that fact when they
    signed      the      lease.       Tufail's         warranty        that       no       ordinances
    prevented the operation of a Church's Chicken was false because
    the Milwaukee zoning code requires any freestanding fast-food
    restaurant to          have a     special      use    permit.           Therefore,          Tufail
    breached the lease.
    ¶54      The     majority      opinion       employs     a    sterile,             technical
    interpretation of the lease that abandons the basic principles
    of contract interpretation.                  When interpreting a contract, the
    court's goal has always been to effect the intent of the parties
    as   it   is      expressed     in    the    language     of       the    contract.           The
    importance        of   upholding      this     principle       cannot          be      overstated
    because people in business                  use     contracts      to     try       to   minimize
    uncertainty in relation to their reasonable expectations.
    ¶55      Parties generally            enter    agreements          to    advance their
    economic interests.            Risks, of course, are inevitable.                           But if
    1
    No.       2011AP1451.dtp
    one party is able to frustrate the basic purpose of a contract
    through        an    unreasonable          interpretation           of   its        terms     and
    commitments, instability will follow, and we will be left with a
    system of law that rewards the more cunning party and disregards
    mutual        intent.           Because    the       majority       opinion    supports       an
    implausible interpretation of the lease contract in this case, I
    must respectfully dissent.
    I
    ¶56    In        2000     Tufail     purchased          a     property         with    a
    freestanding building located at 1635 West North Avenue (the
    Property) in Milwaukee.                 The Property was operated as a New York
    Chicken        fast-food         restaurant,          and     Tufail     continued          that
    operation until the fall of 2007.                           The Property had formerly
    been a Church's Chicken.                  In fact, Tufail later testified that
    "it was an old design Church's Chicken which [he] was running."
    Tufail    was       not    inexperienced         in    the   restaurant        business;      he
    owned four other restaurants.
    ¶57    When he acquired the Property in 2000, Tufail wanted
    to continue operating the fast-food restaurant.                           His request was
    denied by a city plan examiner.                       Tufail was told that a fast-
    food restaurant was a special use under the zoning code and he
    would    need       to    obtain    a     special      use   permit.          He     eventually
    acquired a ten-year special use permit from the Milwaukee Board
    of Zoning Appeals (BOZA).                   When Tufail temporarily closed the
    restaurant in or about October of 2007, he had approximately
    three years left on his ten-year special use permit before it
    would have to be renewed.
    2
    No.    2011AP1451.dtp
    ¶58   Midwest    approached       Tufail   about   opening      a   Church's
    Chicken restaurant at the Property both before and after Tufail
    shut down operation of his New York Chicken.                       Midwest is a
    corporate entity that operates Church's Chicken restaurants and
    is owned by Aslam Khan (Khan).              Munshi Ali, a Church's Chicken
    manager at a different location, approached Tufail four or five
    times and stated that Khan wanted to lease Tufail's property to
    operate a Church's Chicken.           Khan himself eventually visited the
    Property   with   several     other    people    affiliated    with      Church's
    Chicken.    Khan     stated   that     he    owned   many   Church's     Chicken
    restaurants in the Midwest and said that Tufail's property value
    would go up if Church's Chicken moved in.
    ¶59   Two or three days after Khan visited the Property,
    Khan sent an agent, Tariq Malik (Malik), to Tufail with a lease
    drafted by Midwest.     Malik and Tufail went to Tufail's attorney,
    who made some changes to the lease.              However, the attorney did
    not alter Paragraph 5, which contained the provisions regarding
    the use of the premises.         At some point before he signed the
    lease, Tufail visited a Church's Chicken at another location to
    see how Midwest would alter the Property.
    ¶60   Tufail and Midwest entered into a five-year lease (the
    Lease) for the Property in March 2008.               The "Use of Premises"
    section in Paragraph 5 of the Lease stated:
    Tenant may use and occupy the Premises for any
    lawful purpose, including, but not limited to, the
    retail sales, consumption, and delivery of food and
    beverages which shall include, but not be limited to,
    Chicken products, Fish products, bread products,
    salads, sandwiches, dessert items, promotional items,
    3
    No.    2011AP1451.dtp
    and any      other    items       sold   by    any   Church's        Chicken
    store.
    ¶61   The    "Representations        and      Warranties"      section      of   the
    Lease, in Paragraph 33(g), stated that the landlord represents
    and warrants that "no existing restrictions, building and zoning
    ordinances, or other laws or requirements of any governmental
    authority prevent the use of the Premises for the purposes set
    forth in Paragraph 5."
    ¶62   The     Lease        also     stated      at     the      end      of      the
    "Representations          and      Warranties"            section         that        the
    representations and warranties "are material ones, and Landlord
    accordingly agrees that any misrepresentation or breach of such
    warranty will be reason for Tenant to terminate this Lease."
    ¶63    Regarding        interpretation           of     these         provisions,
    Paragraph 38 of the Lease said, "This Lease shall be interpreted
    to the broadest extent possible to give full and fair meaning to
    the intentions of the parties hereto." (Emphasis added.)
    ¶64   Midwest entered the Property and began remodeling it
    in May 2008.        According to Midwest, the Property required a
    substantial      amount    of    cleaning     and    repair       work.       However,
    Midwest suspended the renovation when it was denied a building
    permit.
    ¶65   When Midwest applied for that permit, it was told that
    it would have to apply for a special use permit to operate a
    fast-food restaurant in a freestanding building.                         The examiner
    for the City, Barbara Jones, stated in her denial letter that
    the Milwaukee zoning code did not allow the Property to be used
    as a fast-food restaurant.              Thus, Midwest unexpectedly learned
    4
    No.   2011AP1451.dtp
    that it was faced with the same obstacles with zoning ordinances
    that Tufail had faced roughly eight years earlier.             What Midwest
    did not know was that Tufail's business had been cited for 21
    health code violations by the city in 2007 and had antagonized a
    lot of nearby residents.
    ¶66   On May 29, 2008, Midwest applied for a special use
    permit to operate a fast-food restaurant with a drive-through
    within 150 feet of residential property.         Four sections of the
    City of Milwaukee zoning code were in play.              Section 295-203-
    9.f. defines a sit-down restaurant as:
    a restaurant where the food or beverages sold are
    consumed at tables located on the premises, where
    taking food or beverages from the premises is purely
    incidental, where food or beverages are normally
    served utilizing nondisposable containers and utensils
    and where the consumption of food or beverages in
    vehicles on the premises in which the building is
    located does not regularly occur, or where the
    restaurant is located within a building containing
    more than one principal use other than another
    restaurant. This term does not include a tavern.
    ¶67   Section 295-203-9.g. defines a fast-food or carry-out
    restaurant as "a restaurant other than a sit-down restaurant
    where the manner of preparation, packaging and serving of food
    or beverages encourages their consumption outside the building.
    This term does    not include   a     tavern."   Section       295-603-2.o.
    requires that a fast-food restaurant be in a building containing
    at least one permitted use, or the restaurant must get a special
    use   permit.    Finally,   Section     295-603-2.j.3.    states    that   a
    drive-through may not be located within 150 feet of residential
    property.
    5
    No.    2011AP1451.dtp
    ¶68    Midwest's          intended         use       of         the     Property          was
    inconsistent with the definition of a sit-down restaurant.                                      The
    city   immediately          recognized      that        Church's        Chicken,       like      the
    prior New York Chicken, is a fast-food restaurant and it would
    likely expect to use the existing drive-through.                                   Thus, without
    a   special     use    permit,         operating        a   Church's         Chicken       on    the
    Property would violate two separate zoning code provisions: the
    prohibition         against        operating            a       freestanding           fast-food
    restaurant and the prohibition against having a drive-through
    within 150 feet of residential property.
    ¶69    In September 2008, approximately six months after it
    signed    the      Lease,    Midwest      obtained          a    special       use    permit      to
    operate      the    restaurant.             However,            the     city       imposed      very
    different       conditions        on    Midwest     from         the    conditions         it   had
    imposed on Tufail.               Tufail obtained a ten-year permit; Midwest
    received a one-year permit with no assurance of renewal.                                     Tufail
    was permitted to operate until 4:00 a.m.                              Midwest could operate
    its Church's Chicken until only 9:00 p.m.                                The city's permit
    also required Church's Chicken to pick up all garbage within a
    one-block     radius        of   the    Property.           The        president      of     Falcon
    Holdings, which operates Midwest, testified that it would be too
    expensive to take care of all the garbage within a block of the
    Property and that a Church's Chicken would be less profitable if
    it had to close at 9:00 p.m.
    ¶70    The     BOZA       chairman     stated            that     Midwest       faced       a
    difficult decision whether to invest "hundreds of thousands of
    dollars for a one year approval by this board.                                      There is no
    6
    No.     2011AP1451.dtp
    guarantee of an approval after one year."                   The local community
    appeared     to    share    the    chairman's       concern,       and    many     city
    residents opposed the special use permit.
    ¶71    Due to the long delay in obtaining any special use
    permit and then the severe restrictions added to the permit,
    Midwest stopped paying rent.
    II
    ¶72    The    plain    language        of    the     Lease       unambiguously
    demonstrates that the parties intended for Midwest to operate a
    Church's    Chicken     fast-food    restaurant       on   the     Property.       The
    court's     goal   in   contract    interpretation         is    to      discern   the
    intentions of the parties as expressed in the language of the
    contract.     Town Bank v. City Real Estate Dev., LLC, 
    2010 WI 134
    ,
    ¶33, 
    330 Wis. 2d 340
    , 
    793 N.W.2d 476
    .                 The court will look at
    the ordinary meaning of the contractual language, and if it is
    unambiguous, the contractual interpretation remains within the
    four corners of the contract.           Id.       A contract is ambiguous when
    "it is susceptible to more than one reasonable interpretation."
    Id.
    ¶73    The broad language in the Lease unambiguously suggests
    that Midwest could have operated almost any lawful business on
    the Property.       Paragraph 5 of the Lease states that "Tenant may
    use and occupy the Premises for any lawful purpose . . . ."                          It
    was not unreasonable for Midwest to assume that it could operate
    a freestanding fast-food restaurant because that is a seemingly
    lawful purpose and because New York Chicken had operated on the
    property in that manner.            Moreover, the Lease quickly narrows
    7
    No.    2011AP1451.dtp
    its    intent    by    adding     the    words          "including . . . the        retail
    sales, consumption, and delivery of food and beverages."                                 Then
    the Lease pinpoints its objective by naming "Chicken products,
    Fish       products,    bread    products,          salads,       sandwiches,      dessert
    items,      promotional    items,       and       any    other    items     sold    by   any
    Church's Chicken store." (Emphasis added.)
    ¶74    The Lease in this case is unambiguous because it uses
    "Church's Chicken" according to its ordinary meaning: a fast-
    food restaurant.1          The Lease states that Midwest may use the
    Property for "retail sales, consumption, and delivery of food
    and          beverages          which             shall          include . . . Chicken
    products . . . and any other items sold by any Church's Chicken
    store."
    ¶75    Courts must interpret a contract "in the manner that
    it would be understood by persons in the business to which the
    contract relates."         Columbia Propane, L.P. v. Wis. Gas Co., 
    2003 WI 38
    , ¶12, 
    261 Wis. 2d 70
    , 
    661 N.W.2d 776
    .2                        In the restaurant
    business, "Church’s Chicken is a highly recognized brand name in
    the Quick Service Restaurant sector and is one of the largest
    quick-service         chicken    concepts         in      the    [w]orld."         Church's
    Chicken Celebrates Its Southern Hospitality with Kick Off of New
    1
    Interestingly, the first Church's Chicken restaurant was
    called "Church's Fried Chicken-To-Go."     One Man, One Chicken
    Legacy,   Churchs.com,  http://www.churchs.com/about.html (last
    visited June 25, 2013).     Church's Chicken has always been a
    fast-food restaurant.
    2
    See also N. Gate Corp. v. Nat'l Food Stores, 
    30 Wis. 2d 317
    , 321, 
    140 N.W.2d 744
     (1966); All-Star Ins. Corp. v.
    APS Ins. Agency, Inc., 
    112 Wis. 2d 329
    , 333, 
    332 N.W.2d 828
     (Ct.
    App. 1983); 17A Am. Jur. 2d Contracts § 337 (2004).
    8
    No.    2011AP1451.dtp
    Advertising              Campaign,             (Nov.            3,              2011),
    http://www.businesswire.com/news/home/20111103005028/en/Church%E
    2%80%99s-Chicken-Celebrates-Southern-Hospitality-Kick-
    Advertising.         Because of Church's Chicken's "highly recognized
    brand name," the court of appeals had no trouble asserting that,
    "[i]t is undisputed here that a Church's Chicken is a fast-food
    restaurant.         It was not necessary for the use provision in the
    lease to include additional words allowing operation of a fast-
    food restaurant.         A Church's Chicken is a fast-food restaurant."
    Tufail v. Midwest Hospitality, LLC, No. 2011AP1451, unpublished
    slip op., ¶8 (Wis. Ct. App. Aug. 1, 2012).
    ¶76     Even though Tufail is correct that not everyone would
    understand what a Church's Chicken is, its reputation in the
    restaurant       industry      demonstrates    that    those   in     the    business
    would know that it is a fast-food restaurant.3                      Since the only
    reasonable meaning of "Church's Chicken" is a fast-food chicken
    restaurant, a paragraph that allows for the sale of "items sold
    by any Church's Chicken store" unambiguously contemplates the
    operation of the Property as a fast-food restaurant.
    ¶77     Furthermore,      the   Lease   explicitly      calls      for   broad
    interpretation to avoid an unfair reading of the contract and to
    "give full and fair meaning to the intentions of the parties."
    It would not be reasonable to define "Church's Chicken" in a way
    that       contradicts   its    true   definition.       Midwest      persuasively
    argues       that   "Church's     Chicken"     must    refer   to     a     fast-food
    3
    At trial, Tufail's own expert understood that a Church's
    Chicken is a fast-food restaurant and that Midwest intended to
    operate a freestanding Church's Chicken on the Property.
    9
    No.    2011AP1451.dtp
    restaurant because all Church's Chicken restaurants are fast-
    food restaurants.            Since the zoning code did not permit a fast-
    food restaurant on the Property and Church's Chicken is a fast-
    food restaurant, Tufail's warranty that no ordinances prevented
    the operation of a Church's Chicken on the Property was false.4
    ¶78    The problem with Tufail's warranty is apparent when
    compared to another Lease provision.                    Paragraph 24(b) says, "If
    allowed by local governmental authorities, Tenant shall have the
    right to erect and maintain exterior free standing sign(s) in
    the   location       set   forth     on   Exhibit      'A'.     Landlord       agrees    to
    cooperate          fully     with     Tenant      in    obtaining       all      required
    governmental         permits,       licenses,     approvals     and     variances       for
    Tenant's      sign(s)."        This    paragraph       is   clear    that     the   tenant
    might need to get government permits or variances in order to
    erect       the    desired    signage.           In    contrast,     Paragraph      33(g)
    provides a broad warranty that there are no "requirements of any
    governmental authority" that would prevent the tenant from using
    the Property as specified in Paragraph 5.                     Tufail was not forced
    to embrace the broad warranty in Paragraph 33(g).                           He could have
    made a qualified commitment as appears in Paragraph 24(b), or he
    could       have   forthrightly       disclosed       the   zoning    regulations       and
    made the Lease contingent upon receipt of a satisfactory special
    4
    The majority opinion observes that the circuit court made
    a finding of fact that not all Church's Chicken restaurants have
    a drive-through. Majority op., ¶39. However, the drive-through
    issue is a red herring. Church's Chicken is undeniably a fast-
    food restaurant chain. The zoning code prohibited the operation
    of a freestanding fast-food restaurant regardless of whether
    that restaurant had a drive-through.    Tufail warranted against
    that obstacle.
    10
    No.    2011AP1451.dtp
    use permit.      However, because Tufail warranted that there were
    no zoning requirements with which Midwest had to comply in order
    to sell Church's Chicken products in a fast-food restaurant,
    Tufail must be held to his promise.
    III
    ¶79   Tufail's     warranty      that   no   restrictions       prevent       the
    operation     of a   Church's     Chicken     is   unambiguous,      but     even    if
    "Church's     Chicken"    is   deemed     ambiguous,     the     parol       evidence
    demonstrates that the parties understood Church's Chicken to be
    a fast-food restaurant.          If a contract is ambiguous, the court
    may use parol evidence to explain the ambiguous term.                              Town
    Bank,   
    330 Wis. 2d 340
    ,      ¶38.         Tufail   admitted       that    "[t]he
    intended purpose of the Lease, as represented by Midwest, was
    for it to open a new Church's Chicken restaurant at the Leased
    Premises."     Tufail had to know that Church's Chicken is a fast-
    food restaurant because his New York Chicken restaurant was an
    old Church's Chicken.            Furthermore, Tufail saw that Church's
    Chicken is a fast-food restaurant when he visited one before
    signing the Lease.
    ¶80   Tufail's     visit    is    important      because       the     parties'
    course of dealings can clarify contractual ambiguities.                             See
    Martinson v. Brooks Equip. Leasing, Inc., 
    36 Wis. 2d 209
    , 219,
    
    152 N.W.2d 849
         (1967).      In    Martinson,     the   contract        for    the
    construction of a pool was ambiguous because it incorporated
    plans for a pool but did not explicitly incorporate plans for a
    filter system.       Id. at 218-19.           However, the evidence showed
    that the appellant knew that the filter system was part of the
    11
    No.   2011AP1451.dtp
    plans for the pool.             Id.    Furthermore, because the plans for the
    pool included the plans for the filter system and the contractor
    used a single set of plans to construct both, the plans for the
    filter system were part of the contract.                            Id. at 219-20.        The
    course of dealings in the present case demonstrates that Tufail
    knew what the term "Church's Chicken" meant.                             He had visited
    another Church's Chicken fast-food restaurant to see how Midwest
    would alter the Property.                 This visit shows that the parties
    knew     and      intended      that    Midwest       would      operate      a    fast-food
    restaurant on the Property.
    ¶81     Tufail's interpretation of the Lease is also suspect
    because      it    would     render    the     inclusion      of     "Church's      Chicken"
    meaningless,          and   courts     avoid    interpreting         contracts      to    make
    portions superfluous.            See DeWitt Ross & Stevens, S.C. v. Galaxy
    Gaming & Racing Ltd. P'ship, 
    2004 WI 92
    , ¶44, 
    273 Wis. 2d 577
    ,
    
    682 N.W.2d 839
    .             In DeWitt, a law firm provided services to
    Galaxy       under      a   contract    that        charged      interest     on    untimely
    payments,         but   Galaxy    had    no     assets      or      income.        Id.,   ¶7.
    Galaxy's owner guaranteed full payment, but the guaranty was
    silent as to whether the owner would pay interest.                                 Id., ¶43.
    It would have been meaningless to include the interest clause in
    the contract with Galaxy, a company with no assets, unless the
    owner's guaranty for full payment included a guaranty to pay the
    interest.         Id., ¶¶46-47.        Similarly, it would make little sense
    for the Lease to mention "Church's Chicken" four times if that
    term could refer to any type of restaurant.                             Tufail seems to
    suggest        that     since    the    Lease        does     not    explicitly       define
    12
    No.    2011AP1451.dtp
    "Church's Chicken," no warranty would be violated if a Church's
    Chicken could open and operate under any circumstance.                         However,
    the "Church's Chicken" term is useful only if it refers to the
    Church's Chicken fast-food restaurants that actually exist.
    IV
    ¶82   After a trial, the circuit court ruled in favor of
    Tufail.    In so doing, the court appears to have overlooked or
    discounted critical       testimony,      minimized       the     fast-food      zoning
    problem to focus on the           drive-through,         shifted        the   blame   to
    Midwest for failing to engage in due diligence, and disregarded
    an explicit provision in the Lease.
    ¶83   From    the   outset,     Midwest       sought    to    lease      Tufail's
    property   to   open     and    operate       a   Church's      Chicken       fast-food
    restaurant.       Paragraph      33(g)    of      the   Lease    was     designed     to
    minimize the hazard of an existing zoning barrier against the
    operation of a traditional Church's Chicken restaurant and to
    provide an escape clause from a five-year lease if an existing
    barrier unexpectedly materialized.                 Midwest no doubt wanted a
    drive-through which is often, if not always, a component of a
    fast-food restaurant.          If a drive-through were the sole or major
    sticking point, the specific representations in the Lease might
    present a different case.
    ¶84   The circuit court recast the facts and narrowed the
    issue.     The circuit court found that "there was no evidence
    presented that Tufail knew about the many other Church's Chicken
    restaurants, whether or not they had drive-through operations or
    other Church's Chicken franchise requirements."
    13
    No.    2011AP1451.dtp
    ¶85    In my view, the statement about Tufail's knowledge is
    clearly erroneous, and the court's emphasis on the drive-through
    problem fails to deal with Midwest's legal argument that there
    were two zoning problems they had to face, contrary to Tufail's
    warranty.
    ¶86    As        to   his    knowledge,       Tufail   testified       that        the
    restaurant he bought in 2000 was a drive-through and carry-out
    fast-food restaurant:
    Q    All right.      And when you                        bought     [the
    Property], was it an ongoing restaurant?
    A    It was              a    running     restaurant.      It     was     a
    chicken place.
    Q         What was the name of it then?
    A    At that time it was a New York Chicken. But
    basically it was a Church's Chicken place closed down.
    And the [previous owner], he bought it from Church's
    Chicken and put the name——    They didn't let him use
    their Church's Chicken. They—— So he put a New York
    Chicken [there].
    (Emphasis added.)
    ¶87    Tufail         acknowledged        that   "it   was     an    old      design
    Church's Chicken which [he] was running."                   (Emphasis added.)            He
    said that he used Church's Chicken equipment in his New York
    Chicken     and       suggested       that    Church's   Chicken     use     the       same
    equipment       for     its   new      operation.        Tufail    visited       another
    Church's Chicken in Milwaukee, and he discussed the new interior
    and exterior          alterations      that    Midwest   intended    to    make.         He
    expected that Midwest would make his property look like other
    Church's Chicken restaurants.                 He testified that the purpose of
    14
    No.    2011AP1451.dtp
    the Lease "as it was presented by Midwest [was] to open a new
    Church's Chicken restaurant at the leased premises."
    ¶88    In March 2007, before the Lease was fully negotiated
    and signed, Tufail was visited by Khan who oversees more than
    100 Church's Chicken franchises in the Midwest.                             The circuit
    court and the majority appear to believe that Khan and Tufail
    never discussed what a Church's Chicken restaurant is all about,
    so that Tufail really did not know.                     This view of the facts is
    unrealistic       if       not   incredible      and    is   directly      contrary    to
    Tufail's       acknowledgment       at    trial    that      he   understood     Midwest
    could not operate the Property without a special use permit.
    ¶89       In short, the court's finding that Tufail knew nothing
    about other Church's Chicken restaurants cannot be squared with
    the record.
    ¶90        The court made another questionable finding of fact.
    The court found that, "[i]n early 2008, after the [New York
    Chicken] restaurant had closed, Tufail was then approached by
    representatives of Midwest Hospitality who sought to lease the
    subject property." (Emphasis added.)                     Tufail's attorney, citing
    the record, writes in his brief:                  "Midwest had approached Tufail
    about    opening       a    Church's     Chicken    restaurant      at     the   location
    prior     to    and        immediately     after       Tufail     temporarily     ceased
    operations of his chicken restaurant." (Emphasis added.)                               In
    short, Tufail's attorney corrected the circuit court's findings
    of fact.
    15
    No.    2011AP1451.dtp
    ¶91   The     court     of    appeals——in    its    recitation     of     facts——
    simply disregarded the circuit court's mistaken "findings" on
    both matters discussed above.
    ¶92   As noted, the circuit court found that "there was no
    evidence that Tufail knew . . . whether other Church's Chicken
    restaurants had drive-through operations."                     It also found that
    "the vast majority of Church's Chicken restaurants have drive-
    through operations, but not all." (Emphasis added.)                        The latter
    finding is correct, but it is seriously incomplete.                            The court
    made no finding that there was any Church's Chicken restaurant
    that was not a fast-food restaurant.                      The court also made no
    finding that there was any freestanding Church's Chicken that
    did not      have    a   drive-through        operation.       More   important      for
    purposes of this case is that the Property had been operated as
    a freestanding fast-food restaurant and was intended by Midwest
    to   be    operated      as    a    freestanding    Church's    Chicken        fast-food
    restaurant.         The point is that the Property's operation as a
    fast-food restaurant was not allowed by the Milwaukee zoning
    code without a special use permit.                 Tufail warranted otherwise.
    ¶93   Although         the   circuit    court   made    sparse    findings     of
    fact      about     Church's        Chicken    restaurants,     it      made     lengthy
    findings about Midwest's lack of due diligence.                   The court said:
    Brian Parrish is a commercial real estate broker
    who testified about industry custom and practice
    relating to commercial leases. Parrish testified that
    prior to entering into commercial leases parties
    routinely perform due diligence and described that as
    the period of time prior to the occupant taking
    occupancy to uncover any issues that they may
    encounter that would inhibit them from doing what they
    intend to do at that property, and that includes
    16
    No.   2011AP1451.dtp
    government approvals, construction costs, financing,
    inspections. He further testified that any issues of
    import to the tenant[,] those items could have been a
    contingency, a due diligence item, in the lease.
    Midwest   Hospitality did not perform proper       due
    diligence. In fact, Mr. Habash specifically testified
    that Midwest Hospitality didn't do any due diligence.
    He stated it was because of trust and assurances by
    Mr. Tufail. But the Court does not find the testimony
    of Mr. Habash about reliance on Mr. Tufail credible.
    Mr.   Habash   is   a   senior  executive  at  Midwest
    Hospitality who has been involved with the lease and
    renovation of many prior Church's Chicken restaurants.
    Mr. Habash is the president of the independent
    franchise council of over 750 such restaurants.    Mr.
    Habash was at the subject property before entering
    into the lease and saw its poor condition. It is not
    credible to believe that Mr. Habash relied upon
    statements of Mr. Tufail when making the decision of
    whether or not to have Midwest Hospitality enter into
    the subject lease.    Rather, it is more credible that
    Mr. Habash relied upon his own knowledge, experience,
    and personal inspection.
    (Emphasis added.)
    ¶94   The circuit court's oral decision suggests that the
    court believed that Midwest should have thoroughly investigated
    all applicable zoning requirements before signing the Lease——
    that   Paragraph     33(g)   does   not    mean   anything    because    Midwest
    should have previously discovered the requirements for a special
    use permit.        These sentiments appear to substitute the court's
    expectations for the parties' intentions.
    ¶95   The majority opinion does not acknowledge the circuit
    court's reliance on "due diligence" as a justification for not
    enforcing    the    warranties   in   the   Lease.     This    raises    a   very
    important issue of contract law.
    ¶96   This court has observed that, "in general, the laws in
    existence at the time of the contract are incorporated into that
    17
    No.    2011AP1451.dtp
    contract."       Dairyland Greyhound Park, Inc. v. Doyle, 
    2006 WI 107
    , ¶60, 
    295 Wis. 2d 1
    , 
    719 N.W.2d 408
     (citing Von Hoffman v.
    City of Quincy, 
    71 U.S. 535
    , 550 n.30 (1866)).                            The court of
    appeals has said: "It must be assumed that parties to a contract
    had    knowledge      of   the     law    in    effect      at    the     time   of    the
    agreement."      Krause v. Mass. Bay Ins. Co., 
    161 Wis. 2d 711
    , 718,
    
    468 N.W.2d 755
         (Ct.   App.    1991)      (citing      Menard     v.   Sass,      
    127 Wis. 2d 397
    , 399, 
    379 N.W.2d 344
     (Ct. App. 1985)).
    ¶97    Although     these    principles       may    be    sound    in    general,
    parties      seldom   have   equal       knowledge     of   the    law.      One      party
    cannot sign a contract assuring the other party that it will
    have    no   problems      under   existing      law     and     then   assert     a   due
    diligence defense when that assurance proves false.                          This axiom
    was eloquently stated in the English case of Redgrave v. Hurd:
    There is another proposition of law of very great
    importance which I think it is necessary for me to
    state, because, with great deference to the very
    learned Judge from whom this appeal comes, I think it
    is not quite accurately stated in his judgment. If a
    man is induced to enter into a contract by a false
    representation it is not a sufficient answer to him to
    say, "If you had used due diligence you would have
    found out that the statement was untrue. You had the
    means afforded you of discovering its falsity, and did
    not choose to avail yourself of them."   I take it to
    be a settled doctrine of equity, not only as regards
    specific performance but also as regards rescission,
    that this is not an answer unless there is such delay
    as constitutes a defence under the Statute of
    Limitations.
    Redgrave v. Hurd, [1881] 20 Ch.D. 1 at 13 (Eng.) (first emphasis
    added).       One hundred years           later,     this    ancient      doctrine      was
    embodied in our Restatement (Second) of Contracts, § 172 (1981):
    "A recipient's fault in not knowing or discovering the facts
    18
    No.   2011AP1451.dtp
    before     making   the   contract       does   not   make     his     reliance
    unjustified unless it amounts to a failure to act in good faith
    and in accordance with reasonable standards of fair dealing."
    ¶98    If the Supreme Court of Wisconsin intends to reject
    these principles, it ought to explain why.             Rejection of these
    principles will certainly have implications for the enforcement
    of Wis. Stat. § 100.18, which was one of Midwest's counterclaims
    in this case.
    ¶99    One other item undermines the ruling of the circuit
    court.     The court looked to Paragraph 5 of the Lease and said:
    "If Paragraph Five were vague or ambiguous in any way, the Court
    finds that the language contained therein was drafted by Midwest
    Hospitality and it should be construed against the drafter."
    This is directly contrary to Paragraph 36 of the Lease, which
    provides in part: "Landlord and Tenant have negotiated the terms
    of this Lease; therefore, this Lease shall not be interpreted or
    construed against or in favor of any party." (Emphasis added.)
    ¶100 In sum, the majority opinion heavily relies on the
    findings of fact and conclusions of law of the circuit court and
    completely rejects the well-considered decision of the court of
    appeals.    This is a mistake of the first order.
    V
    ¶101 The majority opinion also relies on the "integration
    clause" in the contract as precluding any consideration of parol
    evidence.     This too is an error because the integration clause
    applies only to prior agreements.           An integration clause "does
    not bar the use of extrinsic evidence to clarify the meaning of
    19
    No.    2011AP1451.dtp
    an ambiguous text."             Roth v. City of Glendale, 
    2000 WI 100
    , ¶49,
    
    237 Wis. 2d 173
    , 
    614 N.W.2d 467
     (Sykes, J., concurring) (quoting
    Bidlack      v.     Wheelabrator          Corp.,      
    993 F.2d 603
    ,    608     (7th       Cir.
    1993));       see      also     Restatement          (Second)        of    Contracts        §    214
    (extrinsic evidence is admissible to establish the meaning of a
    writing even if integrated).
    ¶102 If there is an integration clause, courts "may not
    consider       evidence       of    any     prior       or    contemporaneous           oral       or
    written       agreement         between      the       parties."            Town     Bank,        
    330 Wis. 2d 340
    , ¶37 (footnote omitted).                         In Town Bank, there was a
    commitment letter before the parties signed the contract, and
    the integration clause in the contract precluded consideration
    of the prior commitment letter.                      Id., ¶41.        In the present case,
    there    was      no    prior      oral    or     written         agreement    regarding          the
    Property or the definition of "Church's Chicken."                                  If there were
    any ambiguity in the term "Church's Chicken," the integration
    clause       would     not    prevent       the      use     of    extrinsic        evidence       to
    interpret that term in the Lease.
    ¶103 Even if the Lease were viewed as not specifying the
    operation of a Church's Chicken fast-food restaurant, the intent
    of the parties compels that interpretation.                               Paragraph 5 of the
    Lease     allows       for    the     use       of    the     Property        to     sell       items
    traditionally sold by any Church's Chicken.                               Items traditionally
    sold    by    Church's        Chicken      are       fast-food       items,    and     the       only
    reasonable interpretation is that an establishment selling fast-
    food items is a fast-food establishment.                              Because the court's
    goal in construing a contract is to give effect to the parties'
    20
    No.       2011AP1451.dtp
    intent, Town Bank, 
    330 Wis. 2d 340
    , ¶33, it is reasonable to
    interpret     the   inclusion        of   "Church's    Chicken"         to     mean     that
    Midwest could operate a Church's Chicken fast-food restaurant.
    VI
    ¶104 The majority opinion leans upon the fact that Midwest
    ultimately attained a special use permit to operate a fast-food
    restaurant with a drive-through.                This does not remedy Tufail's
    false     warranty.      The     Lease      warranted      that     there        were     no
    ordinances     or   restrictions          preventing   the   uses        specified        in
    Paragraph 5.        While Midwest          obtained    a   one-year          special     use
    permit, that permit did not change the fact that operating a
    freestanding restaurant at the Property was not a permitted use.
    The city plan examiner denied Midwest's application to operate a
    Church's      Chicken   on     the    Property     because        the    zoning         code
    prevented such a use.           Midwest could have terminated the Lease
    at that point, but it acted in good faith and worked hard to
    obtain    a   special   use     permit.         Unfortunately,          the     excessive
    restrictions in the permit prevented Midwest from operating a
    Church's Chicken because the restrictions made it economically
    impracticable to do so.
    ¶105 Tufail had a permit to operate his New York Chicken
    from 10:00 a.m. to 4:00 a.m.——18 hours a day, seven days a week.
    Midwest received a permit that allowed it to operate until only
    9:00 p.m., which likely was seven hours per day and 49 hours per
    week less than Tufail had operated.                    If the Church's Chicken
    restaurant were designed to open at 11:00 a.m., the restaurant
    would operate only ten hours per day.                  This completely scuttled
    21
    No.   2011AP1451.dtp
    Midwest's       business       model     for     a    restaurant       located     at    the
    intersection of North Avenue and 17th Street in Milwaukee.
    ¶106 Moreover,         the     special       use    permit     imposed      another
    economic    burden       that    prevented          the    operation    of    a    Church's
    Chicken.     The requirement that Midwest pick up garbage within a
    one-block       radius    of    the     Property      was     prohibitive.          As   the
    majority points out, a Midwest representative testified that the
    special use permit imposed restrictions that would have made the
    operation of a Church's Chicken "impossible."                            Majority op.,
    ¶14.     An economic impossibility is just as preventative as a
    physical or legal impossibility.                     The circuit court apparently
    failed to consider these insurmountable economic burdens when it
    stated that the special use permit "did not prevent, in any way,
    Midwest Hospitality from opening a Church's Chicken restaurant
    at the subject property with a drive-through and as a fast food
    restaurant."          The       special        use    permit's        restrictions       and
    uncertainty effectively prevented the operation of the Church's
    Chicken that the parties intended.
    VII
    ¶107 When Tufail signed the Lease, he misrepresented that
    there    were    no   ordinances        that     would      prevent    any   use    of   the
    Property contemplated in Paragraph 5 of the Lease.                           Although the
    Lease did not define "Church's Chicken," the only meaning of
    that term is a fast-food restaurant.                       Even if "Church's Chicken"
    is ambiguous, the parol evidence demonstrates that both parties
    understood that a Church's Chicken is a fast-food restaurant.
    Since the Milwaukee zoning code states that a freestanding fast-
    22
    No.    2011AP1451.dtp
    food restaurant   is   not a   permitted   use,   Tufail    breached   his
    warranty.
    ¶108 For the foregoing reasons, I respectfully dissent.
    23
    No.   2011AP1451.dtp
    1