1050 Lillian St, LLC v. GreenLock, LLC

1

1050 Lillian St, LLC, Plaintiff-Respondent, v. Greenlock, LLC and Andrea Greenwood, Defendants-Appellants.

No. 2023AP1349

Court of Appeals of Wisconsin, District IV

February 22, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.

APPEAL from a judgment of the circuit court for Dane County: Cir Ct. No. 2022SC4768 RYAN D. NILSESTUEN, Judge. Affirmed.

KLOPPENBURG, P.J. ^[1]

¶1 Commercial tenant Greenlock, LLC ("Greenlock") appeals a judgment for eviction in favor of Greenlock's landlord 1050 Lillian St, LLC ("Lillian").^[2] Pursuant to Lillian's motion for summary judgment, the circuit court determined that Lillian was entitled to eviction because Greenlock breached lease provisions prohibiting Greenlock from using the leased property for any purpose other than as a pet "boarding facility." Greenlock argues that there is a genuine issue of material fact as to the intended meaning of "boarding" and, therefore, Lillian is not entitled to summary judgment in its favor. For the reasons below, I reject Greenlock's arguments and affirm.

BACKGROUND

¶2 In January 2019, Lillian entered into a lease (the lease) with Luna Pet Resort, LLC for a commercial space (the property) in a building in Waunakee for a term of approximately six and one-half years. Luna Pet Resort, LLC was owned by Heidi Lezotte and operated a business under the name Luna Pet Resort. According to Lezotte, she operated Luna Pet Resort as a "pet boarding facility," providing boarding "for one overnight or more."

¶3 Section 1.0l(j) of the lease provides that the property "may be used by Tenant for the purpose of operating a Pet and cat boarding facility." Section 6.01 provides that the tenant shall use the property "solely for the purpose of continually conducting" the specified business, and may not use the property for any other purpose "without the prior written consent of Landlord."^[3] I refer to these sections collectively as the "permitted use provisions."

¶4 Lillian also leased space in that same building to two other pet-related businesses. These two businesses had similar permitted use provisions in their respective leases, one permitting use as a "pet grooming facility" and the other permitting use as a "dog day care and training facility." According to Lillian, its intent was for the three businesses in the building to offer "complementary, but not competing, pet-related" services.

¶5 Lezotte averred to the following. She understood that the permitted use provisions in the lease prohibited her from providing services other than pet boarding. While Lezotte operated the business, Luna Pet Resort occasionally performed bathing and nail-trimming services for boarded dogs, but did not provide grooming to non-boarded dogs and did not advertise grooming services. Luna Pet Resort offered dog day care services in 2020 because, due to COVID-19 pandemic travel restrictions, "customers were no longer boarding their dogs and Luna Pet Resort had virtually no customers," but did so only for a limited time and with Lillian's permission.

¶6 In January 2021, Luna Pet Resort hired Andrea Greenwood as an employee. In June 2021, Greenwood's business entity Greenlock, purchased the assets of Luna Pet Resort, LLC, and the lease was assigned to Greenlock. Greenlock took over operations of Luna Pet Resort.

¶7 Greenwood averred to the following. While she was employed at Luna Pet Resort, she provided pet grooming services for the business and was aware that the business provided pet day care services. At the time Greenlock took over the business, Greenwood was not informed by Lillian or Lezotte that the business could not continue providing these services, and she would not have purchased the business if she believed she would not be able to offer them.

¶8 It is undisputed that, after Greenlock purchased Luna Pet Resort, the business advertised and provided pet grooming and day care services for non-boarded pets. In August 2022, Lillian sent Greenlock a notice demanding that Greenlock cease advertising and providing services not permitted by the lease or it would pursue eviction. In September, Greenlock responded that it did not intend to cease providing these services.

¶9 In October 2022, Lillian brought this eviction action. Trial was delayed to permit the parties to engage in discovery. In May 2023, Lillian moved for summary judgment, arguing, among other things, that there is no genuine dispute of material fact that Greenlock breached the permitted use provisions.

¶10 At a hearing in June 2023, the circuit court granted summary judgment to Lillian. The court said that the lease is "very clear" that the property can only be used as a "pet and cat boarding facility." The court determined that "boarding" is not ambiguous and, therefore, the court did not need to consider other evidence of the intended meaning of that word. The court observed that dictionaries, including Merriam-Webster, define "boarding" in this context as providing regular meals and lodging in return for payment. See Board, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com (last visited Feb. 19, 2024) (defining "to board" as "to provide with regular meals and often also lodging usually for compensation").

¶11 The circuit court said that the "day care" services Greenlock had provided could arguably "fall under boarding." However, the court said that there is a plain distinction between an "animal boarding facility and an animal grooming facility." The court determined, based on the parties' affidavits and the rest of the summary judgment record, that there is no dispute that Greenlock breached the lease by providing services other than pet "boarding," that Greenlock did not timely cure the breach, and that Lillian is entitled to eviction. The court issued an order and judgment for eviction.^[4] Greenlock appeals.

DISCUSSION

¶12 Greenlock argues that the circuit court erroneously granted summary judgment to Lillian because there is a genuine dispute of material fact as to the intended meaning of "boarding" in the permitted use provisions of the lease.

¶13 Summary judgment is appropriate "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). This court's "standard of review on summary judgment is de novo." Kurylo v. Wisconsin Elec. Power Co., 2000 WI.App. 102,14, 235 Wis.2d 166, 612 N.W.2d 380.

¶14 Here, summary judgment turns on the interpretation of the lease. "[T]he cornerstone of contract construction is to ascertain the true intentions of the parties as expressed by the contractual language." State ex rel J./Sentinel, Inc. v. Pleva, 155 Wis.2d 704, 711, 456 N.W.2d 359 (1990). Courts "discern the intent of contracting parties from the plain and ordinary meaning of the text." Milwaukee Police Supervisors Org. v. City of Milwaukee, 2023 WI 20, ¶16, 406 Wis.2d 279, 986 N.W.2d 801. If the language used by the parties is unambiguous, a court's "attempt to determine the parties' intent ends with the four corners of the contract, without consideration of extrinsic evidence." Huml v. Vlazny, 2006 WI 87, ¶52, 293 Wis.2d 169, 716 N.W.2d 807. "If the contract language is fairly susceptible to more than one reasonable construction, the contract is ambiguous and extrinsic evidence may be used to determine the parties' intent." State ex rel. Massman v. City of Prescott, 2020 WI.App. 3, ¶14, 390 Wis.2d 378, 938 N.W.2d 602.

¶15 "Whether ambiguity exists in a contract" is a question of law reviewed de novo. Mattheis v. Heritage Mut. Ins. Co., 169 Wis.2d 716, 720, 487 N.W.2d 52 (Ct. App. 1992). Likewise, "interpretation of an unambiguous contract presents a question of law" reviewed de novo. Town Bank v. City Real Est. Dev., LLC, 2010 WI 134, ¶32, 330 Wis.2d 340, 793 N.W.2d 476.

¶16 Interpretation of the lease here turns on the meaning of the word "boarding." I agree with the circuit court that the dictionary definition on which the court relied-providing regular meals and lodging in return for payment-is a representative definition of the word "boarding,"^[5] that the word "boarding" as defined is unambiguous, and that the definition does not encompass the grooming services that Greenlock undisputedly provided to nonboarding animals.

¶17 Greenlock does not offer any other possible definition of "boarding" or argue that that word is ambiguous based on the lease language itself^[6] Instead, Greenlock's primary argument is that "boarding" is ambiguous because, while Lezotte operated Luna Pet Resort, Lezotte allegedly provided day care and grooming services. Greenlock's implication appears to be that the intended meaning of "boarding" may encompass these services because Lillian permitted Lezotte to provide them.

¶18 This argument fails because it relies on extrinsic evidence, of conduct of the landlord and the original tenant after their execution of the lease, rather than the language of the lease itself. As explained above, a court considers extrinsic evidence only if it determines, based on review of the "four corners" of the contract, that the contract language is ambiguous. See Huml, 293 Wis.2d 169, ¶52. Greenlock seeks to turn this rule on its head and use evidence of events that occurred after execution of the lease to cast doubt on the plain meaning of "boarding." Greenlock may rely on extrinsic evidence only if the language of the lease is ambiguous on its face, and, as explained above, Greenlock develops no argument to that effect.

¶19 In a similar vein, Greenlock argues that Lezotte's alleged use of the property for...