S & L Properties New Pinery, LLC v. Todd W. Bennett

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 10, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP567 Cir. Ct. No. 2021CV253

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

S & L PROPERTIES NEW PINERY, LLC,

PLAINTIFF-APPELLANT,

V.

TODD W. BENNETT, MARK H. BENNETT, AND JOHN D. BENNETT,

DEFENDANTS-RESPONDENTS,

KWIK TRIP, INC.,

INTERVENOR-DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Columbia County:
MICHAEL P. SCRENOCK, Judge. Reversed.

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

¶1 TAYLOR, J. S&L Properties New Pinery, LLC, purchased part of
a parcel of land owned by brothers Todd W. Bennett, Mark H. Bennett, and
No. 2023AP567

John D. Bennett (collectively, “the Bennetts”). The Bennetts retained the
remainder of the parcel, which is the property at issue here (“the Property”). As
part of the land purchase, S&L obtained a right of first refusal on any future sale
of the Property. S&L and the Bennetts executed a right of first refusal agreement
(“the ROFR Agreement”), which provides that, if the Bennetts receive an offer to
purchase all or any part of the Property that they are willing to accept, the Bennetts
must provide written notice of that offer, as well as a copy of the offer itself, to
specified S&L representatives. Once the Bennetts provide the written notice, S&L
has 30 days to exercise its right to purchase the Property on the same terms as the
offer.

¶2 The Bennetts accepted an offer to purchase the Property from Kwik
Trip, Inc., and S&L asserted its right of first refusal to purchase the Property. The
Bennetts declined to sell the Property to S&L, contending that S&L failed to
exercise its right of first refusal within 30 days after receiving notice of the offer.
S&L sued the Bennetts for breach of contract, alleging that the Bennetts violated
the ROFR Agreement, and Kwik Trip intervened seeking declaratory judgment
entitling it to purchase the Property. The circuit court granted summary judgment
for the Bennetts and Kwik Trip (collectively, “Respondents”), concluding that
S&L did not timely exercise its right of first refusal. S&L appeals.1

1
Pursuant to a stipulation by the parties, the circuit court granted an injunction
prohibiting the Bennetts from selling the Property to Kwik Trip until the final adjudication on the
merits or a settlement by the parties. The court dissolved this injunction at the same time that it
granted summary judgment for the Respondents, and it denied S&L’s motion to stay the order
during the pendency of the appeal. S&L filed a motion to stay with this court, and we restored
the stipulated temporary injunction pending disposition of this appeal.

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¶3 We conclude that the undisputed facts establish that S&L timely
exercised its right of first refusal under the ROFR Agreement and that S&L is
entitled to summary judgment on its breach of contract claim. Accordingly, we
reverse.

BACKGROUND

¶4 There is no dispute as to the following material facts.

¶5 The Property is a commercial lot owned by the Bennetts that is
located at 2725 and 2727 New Pinery Road in Portage, Wisconsin. S&L
purchased an adjacent lot from the Bennetts in 2015, and it currently leases this lot
to an entity that operates a Culver’s restaurant (“the Culver’s lot”).

¶6 As part of its purchase of the Culver’s lot, S&L obtained a right of
first refusal on the sale of “all or any part” of the Property, which is memorialized
in the ROFR Agreement. Section 1 of the ROFR Agreement provides in pertinent
part as follows. S&L’s right of first refusal is triggered if the Bennetts receive a
“bona fide written offer” from a third party for the purchase of “all or any part of
the Property” and the Bennetts are “willing to accept” the offer. If these
conditions are met, then the Bennetts must give S&L “written notice thereof,”
which notice “shall include a copy of the Offer.” This notice is referred to as the
“Grantor Notice.” S&L has the right for thirty days after the receipt of the Grantor
Notice to exercise its right of first refusal by giving the Bennetts written notice
that it desires to enter into an agreement on the same terms as those contained in
the offer. If S&L exercises its right of first refusal within thirty days of receiving
the Grantor Notice, then S&L and the Bennetts must enter into an agreement on
the same terms as those contained in the offer. If S&L fails to exercise its right of
first refusal within thirty days of receiving the Grantor Notice, then the Bennetts

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No. 2023AP567

may enter into an agreement with the third party on the same terms as contained in
the offer.2

¶7 Section 12 of the ROFR Agreement provides, in pertinent part, that
each party required to give notice pursuant to the ROFR Agreement must do so by
personal delivery or by certified or registered mail. Notice to S&L must be
addressed to the attention of Jeffrey J. Liegel, one of the managers of S&L, and to
the attention of Richard Latta, S&L’s attorney on matters related to the ROFR
Agreement, at the separate addresses provided for Liegel and Latta.3

2
Section 1 of the ROFR Agreement provides in full:

Right of First Refusal. Grantor hereby grants to Grantee a right
of first refusal (the “ROFR”) for the purchase of the real
property located in Columbia County, Wisconsin, more
particularly described in Exhibit A attached hereto (the
“Property”). Grantor and Grantee agree that if Grantor receives
a bona fide written offer from a third party for either (a) the
purchase of all or any part of the Property or (b) the lease of all
or a portion of the Property pursuant to a ground lease in which
the term (which shall include all possible renewal terms) is thirty
(30) years or greater (in either case, an “Offer”), which Offer
Grantor is willing to accept, Grantor will give Grantee written
notice thereof (such notice shall include a copy of the Offer) (the
“Grantor Notice”). Grantee shall have the right for thirty (30)
days after the receipt of the Grantor Notice to give Grantor
written notice that Grantee desires to enter into an agreement
with Grantor on the same terms as are set forth in the Offer (the
“Grantee Notice”), which right of Grantee shall be paramount to
the rights of the third party. Thereafter, if Grantee elects to
exercise the ROFR by providing the Grantee Notice to Grantor,
then Grantor and Grantee shall enter into an agreement on the
same terms as contained in the Offer within thirty (30) days of
delivery of the Grantee Notice. If Grantee fails to exercise the
ROFR within the time herein specified, Grantor shall be at
liberty to enter into an agreement with the third party at the same
price and on the same terms as contained in the Offer.
3
Section 12 of the ROFR Agreement provides in full:

(continued)

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No. 2023AP567

¶8 At the same time that the ROFR Agreement was executed, S&L and
the Bennetts also executed an “Easement Agreement” that grants S&L certain
nonexclusive parking and ingress and egress easements on the Property. This
agreement allows S&L to use approximately 57 parking spaces on the Property.
Although the Easement Agreement is not at issue in this appeal, it is relevant to
whether S&L timely executed its right of first refusal as discussed in more detail
below.

Notices and Correspondence. Whenever in this Agreement it
shall be required or permitted that notice be given by any party
hereto to the other, such notice shall be given by personal
delivery or by certified or registered mail, and any notice so sent
shall be deemed to have been given when delivered or on the
date that the same is deposited in the United States mail, postage
prepaid. Mailed notices shall be addressed to the parties at the
following addresses, or at such other address as a party may
hereafter designate by written notice to the other party:

To Grantee: S&L Properties New Pinery, LLC
2651 Kirking Court
Portage, WI 53901
Attn: Jeffrey J. Liegel

Copy to: Godfrey & Kahn, S.C.
1 East Main Street, Suite 500
Madison, WI 53703
Attn: Richard Latta

To Grantors: Todd W. Bennett
135 West Cook Street
P.O. Box 30
Portage, WI 53901

The addresses for the purpose of this paragraph may be changed
by giving notice of such change in the manner provided herein
for the giving of notice. Unless and until such written notice is
received, the last address stated herein shall be deemed to
continue in effect for all purposes.

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No. 2023AP567

¶9 In January 2021, the Bennetts accepted an offer from Kwik Trip to
purchase the Property. The Bennetts attempted to notify S&L of this offer on
three occasions. In their first attempt on June 25, 2021 (“the June 25 delivery”),
the Bennetts provided S&L with what was purported to be a copy of Kwik Trip’s
offer to purchase, which was personally delivered to Liegel with a copy sent by
U.S. mail to Latta.4 The offer stated, in relevant part, that Kwik Trip offered to
purchase “certain property” located at 2725 and 2727 New Pinery Road, Portage,
Wisconsin, “plus that part of vacated Bennett Drive, as generally described and
depicted on attached Exhibit A (the legal description of which shall be verified by
an ALTA survey to be commissioned by Buyer).” The copy of the offer to
purchase provided to Liegel and Latta did not contain Exhibit A or the pages
containing the signatures of Kwik Trip and the Bennetts indicating that Kwik
Trip’s offer had been accepted by the Bennetts.

¶10 On July 23, 2021, Chad Stevenson—one of the managers of S&L—
sent a letter to the Bennetts by email and Federal Express stating that the June 25
delivery did not satisfy the notice requirements of the ROFR Agreement because it

4
We observe that the ROFR Agreement provides that the Bennetts are “at liberty” to
enter into an offer to purchase agreement regarding all or part of the Property with a third party if
S&L fails to exercise its right of first refusal within thirty days after receiving proper notice of the
offer. Here, the Bennetts accepted Kwik Trip’s offer to purchase the Property before providing
the required notice of the offer to S&L, raising the issue of whether the Bennetts’ acceptance of
Kwik Trip’s offer before providing the required notice to S&L breached the ROFR Agreement.
We also observe that the ROFR Agreement requires that, if the Bennetts provide notice of an
offer to purchase by mail, it shall be by certified or registered mail. Here, although the notice
provided to Latta on June 25 indicates that it was sent by U.S. mail, it does not indicate whether
the notice was sent by certified or registered mail, raising a potential issue of whether this method
of notice complied with the ROFR Agreement. However, neither of these issues were raised by
the parties in the circuit court or in this appeal, and we resolve this appeal on other grounds.
Therefore, we will not address these issues further. See Barrows v. American Family Ins. Co.,
2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 ( “An appellate court need not address
every issue raised by the parties when one issue is dispositive.”).

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No. 2023AP567

did not include Exhibit A and the signature pages of the offer. Stevenson’s letter
instructed the Bennetts to “correct these items and provide a new ‘Grantor Notice’
as described in … the ROFR Agreement.”

¶11 On their second attempt to deliver the offer on July 27, 2021 (“the
July 27 delivery”), the Bennetts personally delivered copies of the missing
Exhibit A and the signature pages to Stevenson, but they did not deliver copies of
these documents to Liegel or Latta. The Bennetts did not include with this
delivery a copy of the offer that they had previously delivered to Liegel and Latta
on June 25.

¶12 On August 26, 2021, a Kwik Trip representative emailed the
Bennetts that S&L “still need[s] proper paperwork regarding [it] ‘waiving’ … [its]
right [of] first refusal.” On their third attempt, on August 31, 2021 (“the August
31 delivery”), to provide notice of the offer to purchase, the Bennetts personally
delivered the complete offer to Stevenson, including Exhibit A and the signature
pages, but they again did not personally deliver or mail the complete offer with
Exhibit A and the signature pages to Liegel and Latta.

¶13 On September 1, 2021, S&L notified the Bennetts that it was
exercising its right of first refusal to purchase the Property on the same terms as
Kwik Trip’s offer. The Bennetts responded in a letter that they intended to honor
Kwik Trip’s offer to purchase because S&L did not exercise its right of first
refusal within 30 days after the Bennetts provided notice of the offer pursuant to
the ROFR Agreement.

¶14 S&L filed this action against the Bennetts in the Columbia County
Circuit Court alleging breach of contract for not accepting S&L’s exercise of its
right of first refusal. As relief, S&L sought an order for specific performance

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No. 2023AP567

requiring the Bennetts to abide by the terms of the ROFR Agreement and to enter
into an agreement to sell the Property to S&L. Kwik Trip intervened in the action
and asserted a counterclaim that sought a declaration of its right to purchase the
Property.5

¶15 S&L and the Bennetts each moved for partial summary judgment on
S&L’s breach of contract claim, and Kwik Trip moved for summary judgment on
its counterclaim for a declaratory judgment. The circuit court granted the
Bennetts’ and Kwik Trip’s summary judgment motions and denied S&L’s
summary judgment motion. The court concluded that the June 25 and July 27
deliveries collectively provided S&L with a complete copy of the offer to purchase
and therefore constituted proper notice under the ROFR Agreement. Because
S&L exercised its right of first refusal on September 1, more than thirty days after
the July 27 delivery, the court determined that S&L’s exercise of its right of first
refusal was untimely. S&L appeals.

DISCUSSION

¶16 On appeal, S&L argues that it is entitled to summary judgment
because the undisputed facts establish that proper Grantor Notice was not given
until the August 31 delivery and, therefore, its September 1 exercise of its right of
first refusal was timely. Respondents argue that S&L’s exercise of its right of first

5
In response to S&L’s complaint, the Bennetts filed a counterclaim alleging that S&L
had breached the parties’ Easement Agreement. After Kwik Trip intervened, S&L filed an
amended complaint that added Kwik Trip to the caption and asserted another breach of contract
claim against the Bennetts regarding the Easement Agreement. The amended complaint did not
change S&L’s breach of contract claim regarding the ROFR Agreement. Claims regarding the
Easement Agreement are not at issue in this appeal and will not be addressed further.

8
No. 2023AP567

refusal was untimely because the undisputed facts establish that proper notice was
given on June 25 or, alternatively, on July 27.

I. Standard of Review and Governing Principles

¶17 We review a circuit court’s decision granting or denying summary
judgment independently, applying the same methodology as the circuit court.
Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶14, 281 Wis. 2d 448, 699 N.W.2d 54.
On summary judgment, the moving party is entitled to judgment as a matter of law
“if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” WIS. STAT. § 802.08(2) (2021-22).6 “The purpose of the summary
judgment procedure is not to try issues of fact but to avoid trials where there is
nothing to try.” Rollins Burdick Hunter of Wis., Inc. v. Hamilton, 101 Wis. 2d
460, 470, 304 N.W.2d 752 (1981). “When confronted with cross-motions for
summary judgment, the reviewing court must rule on each party’s motion on an
individual basis.” American Trucking Ass’ns, Inc. v. State, 205 Wis. 2d 494, 499
n.4, 556 N.W.2d 761 (Ct. App. 1996).

¶18 In this case, the parties agree that S&L’s breach of contract claim
and Kwik Trip’s declaratory judgment counterclaim turn on the same legal issue:
whether S&L’s exercise of its right of first refusal on September 1 was timely.
The resolution of this issue hinges on whether the Bennetts’ June 25 delivery or
July 27 delivery satisfied the notice requirements of the ROFR Agreement, which

6
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP567

requires us to interpret the terms of the ROFR Agreement. The interpretation of
the ROFR Agreement presents a question of law that we determine independently
of the circuit court. Tufail v. Midwest Hosp., LLC, 2013 WI 62, ¶22, 348 Wis. 2d
631, 833 N.W.2d 586.

¶19 “A right of first refusal is a contractual right to be first in line should
the opportunity to purchase or lease a property arise.” Country Visions Coop. v.
Archer-Daniels-Midland Co., 2021 WI 35, ¶2, 396 Wis. 2d 470, 958 N.W.2d 511
(citation omitted). Like any other contract, the parties to a right of first refusal
contract set the terms of the contract. Id., ¶23 n.10. We interpret the language of
a right of first refusal contract as we do any other contract language. MS Real Est.
Holdings, LLC v. Donald P. Fox Fam. Tr., 2015 WI 49, ¶23, 362 Wis. 2d 258,
864 N.W.2d 83.

¶20 When interpreting a right of first refusal contract, our task is to “best
fulfill[] the intentions of the parties when they entered into the agreement granting
… the right of first refusal.” Wilber Lime Prods., Inc. v. Ahrndt, 2003 WI App
259, ¶13, 268 Wis. 2d 650, 673 N.W.2d 339. “We ascertain the parties’ intentions
by looking to the language of the contract itself.” Seitzinger v. Community
Health Network, 2004 WI 28, ¶22, 270 Wis. 2d 1, 676 N.W.2d 426; see also
Town Bank v. City Real Est. Dev., LLC, 2010 WI 134, ¶33, 330 Wis. 2d 340, 793
N.W.2d 476 (“[T]he best indication of the parties’ intent is the language of the
contract itself, for that is the language the parties ‘saw fit to use.’” (citations
omitted)). We give contract language its “ordinary meaning,” consistent with
what a reasonable person would understand the words to mean under the
circumstances. State ex rel. Massman v. City of Prescott, 2020 WI App 3, ¶14,
390 Wis. 2d 378, 938 N.W.2d 602 (2019). Where the terms of a contract are
“clear and unambiguous,” we construe the contract “according to its literal terms”

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No. 2023AP567

without resort to extrinsic evidence. Maryland Arms Ltd. P’ship v. Connell, 2010
WI 64, ¶23, 326 Wis. 2d 300, 786 N.W.2d 15 (citation omitted); see also
Milwaukee Police Supervisors’ Org. v. City of Milwaukee, 2012 WI App 59,
¶12, 341 Wis. 2d 361, 815 N.W.2d 391 (“Unless the contractual language is
ambiguous, the contract must be enforced as written.”).

¶21 Here, none of the parties argue that the pertinent terms of the ROFR
Agreement are ambiguous. We agree. We therefore interpret the ROFR
Agreement according to its literal terms without resorting to extrinsic evidence of
the contracting parties’ intent. See Maryland Arms, 326 Wis. 2d 300, ¶23.

II. June 25 Delivery

¶22 S&L argues that the June 25 delivery did not constitute proper notice
of Kwik Trip’s offer to purchase under the ROFR Agreement because it was
missing Exhibit A. As we now explain, we agree.7

¶23 As noted, the ROFR Agreement provides that the 30-day period for
S&L to exercise its right of first refusal is triggered when the Bennetts give S&L
“written notice” of an offer to purchase that the Bennetts are willing to accept,
which “shall include a copy of the Offer.” The plain and ordinary meaning of this
language is that, when the Bennetts give S&L written notice of an offer to
purchase, they must also give S&L a complete copy of the offer. Allowing the
Bennetts to provide anything less than a complete copy of an offer could hinder

7
S&L also argues that the June 25 delivery was not proper notice because it was missing
the executed signature pages of Kwik Trip’s offer to purchase. We do not address this argument
because our conclusion regarding the absence of Exhibit A in the June 25 delivery is dispositive.
See Barrows, 352 Wis. 2d 436, ¶9.

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No. 2023AP567

S&L’s ability to meaningfully assess whether to exercise its right of first refusal
and purchase the Property “on the same terms” as the offer. As the Idaho Supreme
Court has explained in a persuasive opinion, “the holder of … a right of first
refusal cannot be called upon to exercise or lose that right unless the entire offer is
communicated to [the holder] in such a form as to enable [the holder] to evaluate it
and make a decision.” Gyurkey v. Babler, 651 P.2d 928, 931 (Idaho 1982).

¶24 Here, the Bennetts’ June 25 delivery did not include the complete
offer to purchase because it was missing Exhibit A. The copy of the offer
delivered to S&L on June 25 described the property that Kwik Trip sought to
purchase as “certain property located at [address and parcel number], plus that part
of vacated Bennett Drive, as generally described and depicted on attached
Exhibit A.” Exhibit A was a necessary component of Kwik Trip’s offer to
purchase because it was explicitly referenced in the terms of the offer as a
description of the property that Kwik Trip sought to purchase. By omitting this
attachment, the Bennetts deprived S&L of material information that S&L needed
to meaningfully assess whether to purchase the Property on the same terms as
Kwik Trip’s offer to purchase. See id. at 932 (“Since the … offer did not contain
all the terms and conditions that were contained in the final agreement between the
respondents, it is clear that the appellant’s right to receive notice of all the terms
and conditions of the offer … was not satisfied.”). Because the ROFR Agreement
required that the Grantor Notice include a copy of the offer, but the copy of the
offer included in the June 25 delivery did not include the complete offer, we
conclude that the June 25 delivery was not sufficient notice to S&L of Kwik Trip’s
offer to purchase.

¶25 Respondents do not dispute that Exhibit A was a part of Kwik Trip’s
offer to purchase. Rather, Respondents argue that the June 25 delivery was proper

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No. 2023AP567

notice without Exhibit A. We reject Respondents’ arguments for the following
reasons.

¶26 First, Respondents argue that the June 25 delivery constituted proper
notice without Exhibit A because the document given to S&L contained a
“lengthy, detailed description of the Property.” We are not persuaded. As
explained above, Exhibit A was part of the offer and, by not including Exhibit A,
the June 25 delivery did not include a complete “copy of the offer” as required in
the ROFR Agreement. In addition, as noted above, the document delivered to
S&L on June 25 stated that Kwik Trip offered to purchase “certain property”
located at a particular address and parcel number and that this property was
“generally described and depicted” in Exhibit A. Based on this description in the
copy of the offer delivered by the Bennetts, it was not clear whether Kwik Trip
offered to purchase the entire Property or merely a portion of the Property, as S&L
was entitled to notice under both scenarios. Because the copy of the offer
provided did not identify the portion of the Property that Kwik Trip offered to
purchase, it was also not clear whether Kwik Trip’s offer would affect S&L’s
easement rights on the Property or otherwise affect the Culver’s lot. Moreover,
this description of the Property did not clarify whether Exhibit A contained
additional terms that were not mentioned in the document delivered by the
Bennetts. Without knowing what information was contained in Exhibit A, S&L
could not reasonably and fully discern the terms of Kwik Trip’s offer. Because
the document delivered on June 25 without Exhibit A did not constitute a
complete copy of the offer, it was not proper notice under the ROFR Agreement.

¶27 Second, Respondents argue that Exhibit A was not necessary for
proper notice because S&L was already aware that Kwik Trip offered to purchase
the entire Property. In support, Respondents assert that Kwik Trip had previously

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No. 2023AP567

sent S&L “detailed site plans” as recently as May 21, 2021, that showed Kwik
Trip’s intent to purchase the entire Property. This argument fails because the
parties agreed that S&L’s right of first refusal would only be triggered if the
Bennetts gave S&L written notice of an offer to purchase that included a copy of
the offer. S&L’s purported knowledge of the terms of the offer prior to receiving
the actual offer had no bearing on whether this contractual condition was satisfied.
Moreover, the terms of the offer could have changed in the month between Kwik
Trip giving S&L the “detailed site plans” and the June 25 delivery.

¶28 In sum, the undisputed facts establish that the Bennetts did not
provide S&L with a complete written copy of Kwik Trip’s offer to purchase the
Property as part of the June 25 delivery. Therefore, the June 25 delivery was not
proper notice and did not trigger the 30-day period for S&L to exercise its right of
first refusal.

III. July 27 Delivery

¶29 S&L argues that the July 27 delivery of Exhibit A did not cure the
deficient June 25 delivery because the Bennetts did not give Exhibit A to Liegel
and Latta as required under the ROFR Agreement. As we now explain, we agree.8

¶30 The ROFR Agreement provides that, when notice is required to be
given to S&L, such notice must be given to both S&L’s manager, Jeffrey Liegel,
and S&L’s attorney, Richard Latta. Here, the Bennetts complied with this

8
S&L also argues that the July 27 delivery was insufficient because the Bennetts only
gave S&L the portions of Kwik Trip’s offer to purchase that were missing from the June 25
delivery, not a complete copy of the entire offer. We do not address this argument because our
conclusion regarding the Bennetts’ failure to deliver Exhibit A to Liegel and Latta is dispositive.
See Barrows, 352 Wis. 2d 436, ¶9.

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No. 2023AP567

requirement for the June 25 delivery when they delivered the copy of the offer
without Exhibit A to Liegel and Latta. However, when S&L asked the Bennetts to
provide a copy of the offer that included Exhibit A, the Bennetts did not deliver
Exhibit A to Liegel and Latta. Instead, the Bennetts responded to S&L’s request
by giving a copy of Exhibit A to Stevenson. Regardless of whether the Bennetts’
piecemeal delivery of Kwik Trip’s offer satisfied the ROFR Agreement’s notice
requirements, the Bennetts’ delivery of Exhibit A to Stevenson did not satisfy the
unambiguous requirement that the Bennetts give Exhibit A—a necessary
component of Kwik Trip’s complete copy of the offer to purchase—to Liegel and
Latta. Thus, the July 27 delivery was not sufficient notice under the Agreement,
even when considered with the incomplete copy of the offer provided in the
June 25 delivery, because neither delivery provided Exhibit A to Liegel and Latta.

¶31 Respondents do not dispute that the ROFR Agreement requires that
written notice of Kwik Trip’s offer to purchase and a copy of that offer be given to
Liegel and Latta.9 Nonetheless, Respondents argue that the July 27 delivery to
Stevenson was proper for multiple reasons. We reject each of Respondents’
arguments as follows.

¶32 Respondents argue that the July 27 delivery to Stevenson was proper
because Stevenson was the representative of S&L who asked the Bennetts to
provide the missing Exhibit A. This argument fails because, as explained above,
there is no dispute that the ROFR Agreement requires the Bennetts to provide to
Liegel and Latta a copy of the offer to purchase in order to trigger S&L’s right of

9
In fact, Respondents affirmatively stated in their summary judgment materials in the
circuit court that the ROFR Agreement requires that notice of an offer to purchase be given to
both Liegel and Latta. Respondents do not deviate from that position on appeal.

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No. 2023AP567

first refusal. The Bennetts were not entitled to ignore this unambiguous
contractual obligation simply because a representative of S&L who is not a
designated notice party under the ROFR Agreement asked the Bennetts to cure
their deficient June 25 delivery.

¶33 Respondents also argue that the Bennetts’ delivery of Exhibit A to
Stevenson on July 27 was proper notice because S&L accepted the August 31
delivery to Stevenson as satisfying the ROFR Agreement’s notice requirements.
However, Respondents do not cite to any legal authority to support their argument
that S&L’s acceptance of the August 31 delivery excused the Bennetts’
noncompliance with the notice requirements in the ROFR Agreement for the
July 27 delivery. We may decline to address this argument for this reason. See
State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we
may decline to address arguments that are undeveloped, including the lack of
references to supporting legal authority). But this argument also fails on the
merits because Respondents have not shown that S&L waived the notice
requirements for the July 27 delivery.

¶34 “[T]he general rule is that a party to a contract can waive a condition
that is for [its] benefit.” Godfrey Co. v. Crawford, 23 Wis. 2d 44, 49, 126 N.W.2d
495 (1964). “The party asserting the existence of facts that give rise to a waiver
has the burden of proving them.” Christensen v. Equity Coop. Livestock Sale
Ass’n, 134 Wis. 2d 300, 303, 396 N.W.2d 762 (Ct. App. 1986). Here,
Respondents do not point to any evidence that S&L intended to waive the required
notice to Liegel and Latta for the July 27 delivery. Nor do Respondents point to
any legal authority or otherwise explain why S&L’s waiver of the notice
requirements for the August 31 delivery operates as a waiver of the Bennetts’
noncompliance with those requirements on previous occasions. Accordingly, we

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No. 2023AP567

conclude that Respondents have not shown that S&L’s acceptance of the
August 31 delivery to Stevenson excused the Bennetts’ noncompliance with the
notice requirements for the July 27 delivery.

¶35 Respondents further argue that the July 27 delivery to Stevenson,
coupled with the June 25 delivery, was proper notice because it gave S&L
“reasonable notice” of all of the terms of Kwik Trip’s offer to purchase. In
support, Respondents point to Wisconsin case law that “notice” is generally
sufficient if it reasonably apprises the recipient of a fact. See Illinois Cent. R.R.
Co. v. Blaha, 3 Wis. 2d 638, 646, 89 N.W.2d 197 (1958) (“[W]hatever fairly puts
a person on inquiry with respect to an existing fact is sufficient notice of that fact
if the means of knowledge are at hand.”); Black v. Chicago & N.W. Ry. Co., 18
Wis. 208, 209 (1864) (“The general rule in respect to notices is[] that mere
informalities do not vitiate them so long as they do not mislead[] and the notice
gives the necessary information to the proper party.”). Respondents also point to
cases from other jurisdictions that hold that a right of first refusal requires only
“reasonable” notice or disclosure of the terms of the sale. See, e.g., Dyrdal v.
Golden Nuggets, Inc., 689 N.W.2d 779, 784-85 (Minn. 2004); John D. Stump &
Assocs., Inc. v. Cunningham Mem’l Park, Inc., 419 S.E.2d 699, 705-06 (W. Va.
1992).

¶36 This argument fails because none of the cases Respondents cite
involve contracts containing specific notice requirements. See Illinois Cent. R.R.,
3 Wis. 2d at 640-41; Black, 18 Wis. at 208; Dyrdal, 689 N.W.2d at 784
(“reasonable notice” is required only if there is no “express agreement between the
parties regarding the nature of notice activating a right of first refusal and its
sufficiency”); John D. Stump, 419 S.E.2d at 706 (limiting the rule of “reasonable
notice” to “cases where there is no specific language in the agreement granting the

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right of first refusal spelling out what must be contained in the notice.”). Here, by
contrast, the ROFR Agreement requires more than “reasonable notice” to S&L of
an offer to purchase. The parties agree that the ROFR Agreement specifically and
unambiguously requires the Bennetts to provide written notice of the offer, as well
as a copy of the offer, to both Liegel and Latta at their separate addresses. See
Hotel Hay Corp. v. Milner Hotels, 255 Wis. 482, 486, 39 N.W.2d 363 (1949)
(“The nature of notice required by contract depends, of course, upon the
provisions of the contract.”). Like any other contract, we must interpret this
unambiguous language according to its literal terms. See Maryland Arms, 326
Wis. 2d 300, ¶23. There is no dispute that the Bennetts did not deliver Exhibit A
to Latta or Liegel in either the June 25 delivery or in the July 27 delivery. As a
result, the Bennetts’ failure to deliver Exhibit A to Liegel and Latta means that the
July 27 delivery, even when considered together with the portion of the offer
provided in the June 25 delivery, was not sufficient notice under the terms of the
ROFR Agreement.

¶37 Finally, Respondents argue that the July 27 delivery was proper
notice because the Bennetts substantially performed their contractual obligations.
In other words, Respondents allege that the June 25 delivery and the July 27
delivery collectively provided S&L with all of the terms of Kwik Trip’s offer to
purchase. Under Wisconsin law, “substantial performance” of a contractual
obligation “means not doing the exact thing promised, but doing something else
that is just as good, or good enough for both obligor and obligee.” Bridgkort
Racquet Club, Inc. v. University Bank, 85 Wis. 2d 706, 709, 271 N.W.2d 165 (Ct.
App. 1978). “The test for substantial performance is whether the performance
meets the essential purpose of the contract.” Micro-Managers, Inc. v. Gregory,
147 Wis. 2d 500, 516, 434 N.W.2d 97 (Ct. App. 1988). Factors that courts

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consider in determining whether a party substantially performed the party’s
contractual obligations include “the character of the promised performance, the
purposes it was expected to serve and the extent to which nonperformance has
defeated those purposes.” M & I Marshall & Ilsley Bank v. Pump, 88 Wis. 2d
323, 333, 276 N.W.2d 295 (1979). What constitutes “substantial performance” in
a given case “is always a question of fact, a matter of degree, a question that must
be determined relatively to all the other complex factors that exist in every
instance.” Wm. G. Tannhaeuser Co. v. Holiday House, Inc., 1 Wis. 2d 370, 374,
83 N.W.2d 880 (1957) (emphasis omitted).

¶38 Here, Respondents argue that the July 27 delivery to Stevenson was
“substantial performance” of the ROFR Agreement’s notice requirement because
it provided S&L with “actual notice” of Kwik Trip’s offer to purchase. We are not
persuaded. As explained above, the only reasonable interpretation of the notice
provision of the ROFR Agreement is that the Bennetts must provide written notice
to two specific individuals, Liegel and Latta, each with different responsibilities
and at different addresses. Failure to substantially perform this obligation with
respect to either of these individuals constitutes improper notice under the ROFR
Agreement. Here, the July 27 delivery did not substantially perform the required
notice to Latta. As explained above, Latta is S&L’s attorney who represents S&L
in matters concerning the ROFR Agreement. S&L bargained for the right to have
Latta be provided with a copy of any offer to purchase the Property, yet there is no
dispute that Latta did not receive Exhibit A—a necessary component of Kwik
Trip’s offer to purchase—in either the June 25 or July 27 deliveries. Respondents
do not point to any facts in the record to support their argument that providing
notice to S&L’s manager (Stevenson) was “just as good” as providing notice to
S&L’s attorney (Latta), see Bridgkort, 85 Wis. 2d at 709, or that notice to

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Stevenson comported with the “essential purpose” of the unambiguous contractual
requirement that notice be provided to Latta, see Micro-Managers, 147 Wis. 2d at
516.10 Therefore, we conclude that the July 27 delivery did not substantially
perform the required notice to Latta.11

¶39 In sum, we conclude that the undisputed facts establish that neither
the June 25 delivery nor the July 27 delivery, considered separately and
cumulatively, provided proper notice to S&L of Kwik Trip’s offer to purchase the
Property. Because the parties do not dispute that the August 31 delivery
constituted proper notice under the ROFR Agreement, and because S&L exercised
its right of first refusal within 30 days of that notice, S&L is entitled to purchase
the Property on the same terms as Kwik Trip’s offer.

CONCLUSION

¶40 For the reasons stated, we conclude that, as a matter of law, S&L’s
exercise of its right of first refusal for the Property on September 1 was timely and
that S&L is therefore entitled to summary judgment on its breach of contract
claim.

By the Court.—Order reversed.

10
Respondents point to an email sent by Stevenson to Kwik Trip and Liegel on August 6
that says: “Mark Bennett did drop off what we needed.” However, Respondents do not explain
how this email to Liegel substantially performed the required notice to Latta. Respondents also
contend that “actual notice” to S&L is all that is required because the “purpose of the ROFR
Agreement was to provide notice to S&L of a prospective sale to a third-party.” We will not
consider this factual assertion because Respondents do not support this assertion with any citation
to the record. See Tam v. Luk, 154 Wis. 2d 282, 291 n.5, 453 N.W.2d 158 (Ct. App. 1990) (this
court may decline to consider factual assertions that are unsupported by citations to the record).
11
Because the lack of notice to Latta is dispositive, we express no opinion as to whether
the July 27 delivery substantially complied with the required notice to Liegel.

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No. 2023AP567

Not recommended for publication in the official reports.

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