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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
August 14, 1996
A party may file with the Supreme Court      This opinion is subject to further editing.
a petition to review an adverse decision     If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and   appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                          Official Reports.
Nos.                                         96-0592
96-0593
96-0594
96-0595
STATE OF WISCONSIN                           IN COURT OF APPEALS
DISTRICT II
No. 96-0592
BROOKHILL CAPITAL
RESOURCES, INC., as general
partner and on behalf of
Westgate Mall Properties,
a New Jersey limited partnership,
Plaintiff-Appellant,
v.
SPIEGELHOFF FABRICS, INC.,
Defendant-Respondent.
No. 96-0593
BROOKHILL CAPITAL
RESOURCES, INC., as general
partner and on behalf of
Westgate Mall Properties,
a New Jersey limited partnership,
Plaintiff-Appellant,
v.




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JALENSKY SPORTS
CENTER, INC.,
Defendant-Respondent.
No. 96-0594
BROOKHILL CAPITAL
RESOURCES, INC., as general
partner and on behalf of
Westgate Mall Properties,
a New Jersey limited partnership,
Plaintiff-Appellant,
v.
RANDALL STORES, INC.,
a foreign corporation,
Defendant-Respondent.
No. 96-0595
BROOKHILL CAPITAL
RESOURCES, INC., as general
partner and on behalf of
Westgate Mall Properties,
a New Jersey limited partnership,
Plaintiff-Appellant,
v.
DAVID A. CARLSON, d/b/a
SUE'S HALLMARK SHOP,
Defendant-Respondent.
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APPEALS from judgments of the circuit court for Racine County:
DENNIS J. FLYNN, Judge.  Reversed and cause remanded.
SNYDER, J.                                                                           Brookhill Capital Resources, Inc. appeals from
a summary judgment disposing of its claim to past common area maintenance
(CAM)  charges  from  four  Westgate  Mall  tenants.    On  appeal,  Brookhill
contends that summary judgment should not have been granted because there
are  factual  issues  regarding  whether  the  stated  time  for  performance  was
essential to the contract.   Brookhill seeks reversal of the summary judgment.
We conclude that there are issues of material fact in dispute and summary
judgment was improper.
In January 1995, Brookhill filed a complaint against four tenants:
Spiegelhoff Fabrics, Inc.; Jalensky Sports Center, Inc.; Randall Stores, Inc.; and
David A. Carlson, d/b/a Sue’s Hallmark Shop, for unpaid CAM expenses for
1991, 1992, 1993 and 1994.   Brookhill has separate, yet similar, leases with all
four  tenants,  and  because  the  four  claims  were  similar,  the  cases  were
consolidated.1
Under the leases, the tenants must make prorated monthly CAM
payments based upon the preceding year’s actual CAM expenditures.    It is
undisputed   that   the   tenants   have   paid   these   monthly   installments.
1  The cases were consolidated by order of this court dated June 25, 1996.
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Additionally,  all  four  leases  include  a  provision  that  requires  Brookhill  to
submit to the tenants a reasonably detailed account reconciling these payments
with the actual expenses incurred.    The leases for Spiegelhoff and Jalensky
expressly state that the preceding year's actual CAM costs should be submitted
within ninety days from the end of the lease year.   Randall's lease states that
within fifteen days from the end of each month Brookhill should provide that
month's actual CAM costs.  Carlson's lease does not enunciate any specific time.
None of the leases contain a “time is of the essence” clause.
Brookhill's  accounting  department  underwent  reorganization
during 1991 and 1992, and consequently, Brookhill did not provide the tenants
with the respective CAM charges until November and December 1993.   Also,
the actual CAM charges for 1993 were submitted in June 1994 and for 1994 in
March 1995.  It is undisputed that the tenants have not made these payments.
In response to Brookhill's claim, the tenants contend that they are
not obligated to pay these CAM charges because they were not supplied with
an accounting within the time stated by the lease provisions.   Further, they
contend  that  the  CAM  charges  were  inflated  because  Brookhill  wrongly
included  the  cost  of  repairing  and  resurfacing  the  mall  parking  lot  which
occurred in  1992 and  1994.    Accordingly, the tenants moved for summary
judgment dismissal.
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The trial court granted partial summary judgment to Jalensky,
Spiegelhoff and Carlson dismissing the CAM cost claims for 1991, 1992 and
1993.   Randall was granted judgment for 1991 through 1994.   The basis of the
dismissal was that the charges were not timely submitted.   This was a result of
the trial court’s finding that time was of the essence.  For the three leases stating
a specific time for submission, the trial court employed the tenet of contract law
that unambiguous language in a contract must be enforced as written.   For
Carlson’s lease, with no specified time for performance, the trial court used a
reasonableness standard and determined that the submissions were not made
within a reasonable time.   Finally, the trial court interpreted the definition of
CAM costs provided in the leases and determined that resurfacing the parking
lot did not constitute a CAM expense.  With regard to the remaining CAM costs
for  1994, the trial court concluded that these charges were in dispute and
refused summary judgment on the matter.  Brookhill’s appeal followed.2
We apply the summary judgment statute, § 802.08(2), STATS., in
the same manner as the trial court.   Green Spring Farms v. Kersten, 136 Wis.2d
304, 315, 401 N.W.2d 816, 820 (1987).   Because that methodology is well known,
it need not be repeated here.   Paape v. Northern Assurance Co., 142 Wis.2d 45,
50,  416 N.W.2d  665,  667  (Ct. App.  1987).    Summary judgment is a drastic
remedy and should not be granted unless the law that resolves the issue is clear.
2                                                                                               Following  the  court's  order  granting partial  summary  judgment,  the  parties  reached  a
settlement agreement on all remaining issues.   The court then issued a final judgment, which
Brookhill appeals.
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Lecus v. American Mut. Ins. Co.,  81 Wis.2d  183,  189,  260 N.W.2d  241,  243
(1977).
Where  complex  issues  are  presented  to  a  court  on  summary
judgment,  they  often  cannot  be  decided  on  the  basis  of  affidavits  and
depositions.   See Peters v. Holiday Inns, Inc., 89 Wis.2d 115, 129, 278 N.W.2d
208,                                                                                   215   (1979).   If  the  presented  materials  are  subject  to  conflicting
interpretations  or  reasonable  people  might  differ  as  to  their  significance,
summary judgment is inappropriate.   Grams v. Boss, 97 Wis.2d 332, 339, 294
N.W.2d 473, 477 (1980).
We first address the tenants' contention that the leases clearly state
the time within which Brookhill is to submit the annual CAM charges.   They
argue that the timely submission of these costs is a condition precedent to
fulfilling their promise to make the requested payments.   They also maintain
that the time stated in the lease was purposefully included to afford the tenants
the opportunity to incorporate into the price of their merchandise any excess
costs associated with maintaining common areas.   Thus, the tenants contend
that the time provision was essential to the lease and Brookhill’s failure to
timely perform constitutes a breach of contract.
In opposition to the summary judgment motion, Brookhill argues
that because there is no language to the contrary in the leases, time is not of the
essence.   Also, Brookhill offered undisputed affidavits showing that the tenants
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had accepted late CAM cost submissions in the past.   Brookhill contends that
this willingness to accept late submissions constitutes an implied waiver or
contract modification.
The trial court found as a matter of law that the leases for Jalensky,
Spiegelhoff and Carlson unambiguously state the time in which Brookhill was
to submit the CAM costs.   For example, Spiegelhoff’s lease states:                  “Within
ninety  (90) days after the end of each Lease Year  ... Landlord shall furnish
Tenant a statement in reasonable detail of Landlord’s actual Common Area
Costs                                                                                .”                                                                             The  court  then  looked  to  accepted  law  that   “unambiguous
contractual language must be enforced as it is written” in granting summary
judgment for the tenants.   State v. Windom, 169 Wis.2d 341, 348, 485 N.W.2d
832, 835 (Ct. App. 1992).
We agree with the trial court that the Spiegelhoff, Jalensky and
Carlson  leases  contain  a  clause  which  unambiguously  states  a  time  for
performance.   However, Wisconsin case law recognizes a distinction between a
breach of a substantive promise and a breach of promise as to the time of
performance.   Courts “have treated stipulations as to time as subsidiary and of
less importance than the thing promised ....”  Zuelke v. Gergo, 258 Wis. 267, 270-
71,                                                                                  45  N.W.2d  690,  692  (1951)  (quoted  source  omitted).    Furthermore,  a
nonmaterial  breach  of  contract  does  not  excuse  performance  by  the
nonbreaching party.   See Entzminger v. Ford Motor Co., 47 Wis.2d 751, 755, 177
N.W.2d 899, 901-02 (1970).   Unless the time for performance is of the essence,
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contractual time provisions are not generally material.   Huntoon v. Capozza, 57
Wis.2d 447, 452-53, 204 N.W.2d 649, 652 (1973).   Whether time is of the essence
in a contract is a factual question.   Employers Ins. v. Jackson, 190 Wis.2d 597,
616, 527 N.W.2d 681, 688 (1995).
Commonly, time is not of the essence unless the contract expressly
makes it so or the parties’ conduct clearly indicates that intent.   Stork v. Felper,
85 Wis.2d 406, 411, 270 N.W.2d 586, 589 (Ct. App. 1978).   Moreover, simply
including the time for performance in a contract does not make time of the
essence.   Buntrock v. Hoffman, 178 Wis. 5, 13, 189 N.W. 572, 575 (1922).   There
must also be a provision specifying the effect of nonperformance within the
designated time.  Id.3
3  WISCONSIN J I—CIVIL 3048 provides further support:
The importance of time in connection with the performance of a contract depends
upon  the  nature  of  the  contract,  the  terms  thereof,  and  the
circumstances appearing from the conduct of the parties.   Time is
not to be regarded as of vital importance or as of the essence of the
contract unless it is clear that the parties intended to make it so by
their conduct or by the terms on which they have agreed.
Time is not to be regarded as of the essence of the contract merely because a
definite time for performance is stated therein, in the absence of
any further provision regarding the effect of nonperformance at
the time stated.   Where there is no provision as to the time for
performance, the law will imply a reasonable time which means a
somewhat more protracted time than directly, forthwith, or as soon
as possible.
If you determine that performance at the exact time agreed upon was intended to
be of vital importance to the parties, you may find that time was of
the essence so that failure of the party to perform on time may
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The leases do not state that time is of the essence, nor do they
provide  a  consequence  for failure  to  timely  perform.    Whether  Brookhill's
failure to submit the CAM costs in accordance with the leases constitutes a
breach of contract is a material issue of fact.   Thus, concluding that the tenants
are no longer obligated to pay the CAM costs because they were untimely
submitted requires a finding of fact that the stated time is essential to the leases.
It is this determination that precludes summary judgment disposition.
Finally, with regard to Carlson’s lease, the trial court correctly
noted that when no time for performance is expressly stated, a reasonable time
is implied.   Delap v. Institute of Am., Inc., 31 Wis.2d 507, 512, 143 N.W.2d 476,
478 (1966).   However, “what constitutes a reasonable time [for performance]
within the facts of a given case presents a question of fact.”   Id. (quoted source
omitted).   Since reasonableness is a question of fact, it was improperly decided
on summary judgment.   Consequently, this issue also should be decided by the
finder of fact.
We now turn to the parking lot resurfacing costs.    In granting
summary judgment dismissal, the trial court determined as a matter of law that
repairing and resurfacing the mall parking lot is not a CAM expense under the
leases.   In making this determination, the court interpreted the lease provisions
detailing the items deemed to be CAM costs and principally characterized these
(..continued)
constitute a breach of contract.
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costs  as  day-to-day  or  yearly  upkeep  expenses.    The  court  reasoned  that
resurfacing the parking lot was better classified as a capital expenditure than as
a  maintenance  expense.    Consequently,  the  court  interpreted  the  leases  as
excluding any costs associated with resurfacing the parking lot.
In order to arrive at this conclusion on summary judgment, the
trial court must first find the lease language unambiguous.  This is a question of
law which may be answered on summary judgment.  See Lamb v. Manning, 145
Wis.2d  619,  627,  427  N.W.2d  437,  441  (Ct.  App.  1988).    Also,  courts  may
interpret  an  unambiguous  contract  as  a  matter  of  law  by  looking  to  the
language in the written instrument.  See Gunka v. Consolidated Papers, Inc., 179
Wis.2d 525, 531, 508 N.W.2d 426, 428 (Ct. App. 1993).
Since the construction of a written contract raises a question of
law, this court owes no deference to the trial court's interpretation.   Kreinz v.
NDII Sec. Corp.,  138 Wis.2d  204,  216,  406 N.W.2d  164,  169  (Ct. App.  1987).
When contractual language is clear and unambiguous, we construe it as it
stands.   Id.   However, a contract that is reasonably and fairly susceptible to
more than one construction is ambiguous.   Jones v. Jenkins, 88 Wis.2d 712, 722,
277 N.W.2d 815, 819 (1979).
All four leases contain similar sections setting out the types of
expenditures in common areas for which the tenants are financially obligated.
All of the leases include a broad-sweeping definition of CAM costs, combined
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with a laundry list of specific expenses.   For example, the relevant section of
Spiegelhoff’s lease states, “The Common Area Costs shall cover all costs and
expenses of every kind and nature paid or incurred by Landlord ... in operating,
managing, equipping, policing ... protecting, insuring, heating, cooling, lighting,
ventilating,  repairing,  replacing  and  maintaining  the  Common  Areas  and
Facilities ....”
From this section, one may read the language to comprise all
possible costs of operating and maintaining the common areas.   As the record
indicates, there is no dispute that the parking lot is part of the common area.
Alternatively, when combined with the leases’ lists of specific expenses, this
provision may be read as merely including short-term maintenance costs, as the
trial court suggested.   Furthermore, we note that none of the leases contain any
reference to costs associated with “resurfacing” the parking lot.4
From our analysis, it is apparent that with regard to resurfacing
the parking lot the lease language is reasonably susceptible to more than one
interpretation.   Therefore, we conclude that all four leases are ambiguous as to
whether resurfacing the parking lot is a CAM expense.
Moreover, once a court considers that a contract is ambiguous, the
court must consider the intent of the parties.   Capital Invs., Inc. v. Whitehall
4                                                                                                    Even the provision in Carlson's lease which included in the CAM costs the “repair and
replacement  of  paving  and  stripping  including  parking  areas”  is  susceptible  of  multiple
interpretations as to whether this includes a complete resurfacing of the entire parking area.
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Packing Co., 91 Wis.2d 178, 190, 280 N.W.2d 254, 259 (1979).   “The cornerstone
of contract interpretation is to ascertain the parties’ true intentions as expressed
by contractual language.”   Bank of Barron v. Gieseke, 169 Wis.2d 437, 455, 485
N.W.2d 426, 432 (Ct. App. 1992).   However, the true intent of the parties is a
question of fact.   See Brown v. Hammermill Paper Co., 88 Wis.2d 224, 234, 276
N.W.2d  709,  713  (1979).    We  therefore  conclude  that  summary  judgment
disposition is not appropriate.
In sum, we agree that three of the leases unambiguously state a
specific time for Brookhill to submit an account of the actual CAM expenses.
However, the tenants may not be relieved of their obligation to pay their share
of the costs unless the fact finder determines that time is of the essence or, in the
alternative,  that  the charges were not  submitted  within  a reasonable  time.
Regarding the resurfacing issue, we conclude that the language in the relevant
lease provisions is ambiguous since it is reasonably susceptible to more than
one construction.   Because Brookhill's claims present complex, disputed issues
of material fact, they cannot be rightly decided on summary judgment.
By the Court.—Judgments reversed and cause remanded.
This opinion will not be published.  See RULE 809.23(1)(b)4, STATS.
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