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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.
December 17, 1998
A party may file with the Supreme Court a
                                                                                     Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                     Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                     of Wisconsin              STATS.
No.                                                                                  98-1978
STATE OF WISCONSIN                                                                   IN COURT OF APPEALS
                                                                                     DISTRICT IV
DUANE LESKY,
PLAINTIFF-APPELLANT,
V.
COUNTY OF LA CROSSE,
DEFENDANT-RESPONDENT.
APPEAL from a judgment of the circuit court for La Crosse County:
DENNIS G. MONTABON, Judge.  Affirmed.
Before Eich, Vergeront and Roggensack, JJ.
VERGERONT, J.      Duane Lesky appeals the trial court’s grant of
summary judgment in favor of the County of La Crosse on his claims of breach of
contract and promissory estoppel arising out of Lesky’s lease of the concession at
Goose Island Park.   Lesky contends that there are disputed issues of fact on both
claims, precluding summary judgment.   We conclude there are no genuine issues




No. 98-1978
of fact and the County is entitled to judgment as a matter of law on both claims.
We therefore affirm.
BACKGROUND
Lesky entered into a lease agreement with the County in May 1987
for the concession stand at Goose Island Park and for the permission to sell food
and refreshments, bait, fishing supplies and to rent boats and other recreational
equipment.   Under the agreement, Lesky was to pay a rental fee for the stand the
County had constructed and a percentage of the gross income from all sales except
the camper fees; as to those fees, Lesky received twenty percent.   Lesky was free
to erect additional structures at his expense, with the County’s approval.   He had
to remove those upon relinquishment or termination of the lease, unless he secured
the County’s approval for transfer of title to the County.   He could move a mobile
home into the park and reside there for payment of one dollar per year.
The  lease  agreement  provided  that  its  term  was  for  one  year,
beginning January 1, 1987, and it would automatically renew for additional one-
year periods unless either party served a written notice of intention to terminate on
the other party at least sixty days prior to the expiration of the term.   Another
paragraph  provided  that  Lesky  could  transfer  or  assign  his  interest  in  the
agreement  with  the  County’s  approval,  which  was  not  to  be  unreasonably
withheld.     The  agreement  also  detailed  Lesky’s  obligations  with  regard  to
operating the concession.   The County could terminate the agreement if Lesky
violated its terms and the violation persisted for five days after receipt of written
notice.    Paragraph  15  provided that  “[t]he Concessionaire shall have the first
option  to  renew  this  lease  after  the  expiration  thereof  upon  terms  mutually
agreeable between the … parties.”
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No. 98-1978
                                                                                                                                                         An  addendum  executed  on  December                                                                                                                                11,   1987,  added  some
                                                                                           standards of operation for Lesky as well as this provision:                                                                                                                                                                             “Failure to carry out
                                                                                                                                                                                                                                      the provisions of this agreement may result in termination without a first option to
                                                                                                                                                         renew  this  agreement,  in  spite  of  the  last  sentence  in  paragraph                                                                                                                        #15.”    An
                                                                                                                                                                                                                                      addendum executed on December 28, 1988, made additional changes not relevant
to this decision.
On October 28, 1991, the County sent Lesky a letter notifying him
that the lease agreement would terminate on December 31, 1991, and would not
automatically renew.   Lesky and the County entered into another written lease
agreement for the Goose Island concession on December 30, 1991, for a three-year
term beginning January 1, 1992.   This agreement differed from the first regarding
the stand rental fee, the concessionaire fee, the camper fees, and certain other
aspects  of  the  relationship.    This  agreement  did  not  contain  the  language  in
paragraph  15 of the first agreement giving Lesky the first option to renew on
mutually agreeable terms.   The provisions allowing Lesky to assign or transfer his
interests under the agreement and for removing his structures upon termination of
the agreement remained the same.
Lesky and the County extended the second agreement for one year.
When that agreement expired, the County entered into an agreement leasing the
concession to a party other than Lesky, effective January 1, 1996.
Lesky’s complaint alleged that the County breached its contract by
“terminating Lesky’s first option to renew the agreement of lease in October of
1991 and by eliminating Lesky’s ability to transfer his interest as the Goose Island
Park  concessionaire  to  a  third  party,  for  consideration,  contrary  to  the  long
established practice and custom of La Crosse County and prior Goose Island Park
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No. 98-1978
concessionaires.”   The complaint also alleged that he had been induced to take
actions in reliance on the first option to renew provision in the first lease, that the
County knew or should have known that, and an injustice can only be avoided by
enforcing the terms of the first lease, including the provisions on the option to
renew and on transferring or assigning his rights under the agreement to a third
party.
After  answering  the  complaint,  the  County  moved  for  summary
judgment.    The County submitted with its motion the written agreements and
addendums between the parties.   The County argued that it did not breach any
contract with Lesky because it terminated the first lease agreement in accordance
with its terms and Lesky entered into the second lease agreement, the terms of
which the County complied with.   The County also argued that the existence of
written contracts between the parties barred Lesky’s promissory estoppel claim
and, in any case, it was not reasonable for Lesky to rely on anything other than the
terms of the written contracts he entered into with the County.1
Lesky  submitted  materials  in  opposition  to  the  motion  which
included evidence of the following.   A prior concessionaire, Coy Sitze, had sold
his right to do business under the contract with the County to Theron Fisher, who
sold his interest to Frank Bakalars, who, in turn, sold his interest to Lesky for
$58,000.    In Lesky’s view,  $20,000 represented the cost of the mobile home,
inventory and equipment, and $38,000 represented consideration for good will and
the  right  to  do  business.    Lesky deposed  that,  before  entering  into  the  1987
contract with the County and the separate contract with Bakalars, he spoke to
1    There were other arguments in the County’s brief not relevant to this appeal.
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No. 98-1978
Fisher, who had become the Director of Parks and Property for the County.   Lesky
expressed concerns about the one-year term of the lease and Fisher stated that had
been in his concession contract with the County, and in the contracts of the other
concessionaires.   According to Lesky, Fisher told him the first option to renew
was there to protect his investment and also that he (Fisher) expected the lease
renewal  to  continue  that  way  because  it  had  not  changed  over  the  years.
According to Fisher, the County knew of the financial terms between Bakalars and
Lesky.
Lesky’s submissions also showed that he objected to the omission of
the  first  option  to  renew  term  in  the  second  lease  agreement,  but  signed  it
nevertheless.   In addition Lesky presented evidence that the parties who entered
into the lease agreement with the County effective January 1, 1996, were required
to purchase his inventory but not his mobile home and equipment, in spite of
Lesky’s request that such a provision be included.
Lesky argued that the County breached the 1987 lease agreement by
terminating it without cause and breached the second lease agreement by failing to
reimburse him for his investment capital after terminating that agreement without
cause.   As to both agreements, Lesky argued that the County breached the implied
covenant of good faith.   Promissory estoppel applied, he argued, because it was
reasonable for him to rely on the County’s conduct with prior concessionaires and
on the “option to renew” in the first lease agreement, and the written contract did
not bar application of that doctrine because the contract did not cover the total
business relationship between the parties.
The trial court granted the County’s motion for summary judgment,
agreeing with the County that there were no disputed issues of material fact and
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No. 98-1978
that the County had not breached either lease agreement or the obligation of good
faith  implied  in  every  contract.2     On  appeal,  Lesky  renews  his  arguments
concerning the first lease agreement.
DISCUSSION
Breach of Contract
We  review  summary  judgments  de  novo,  employing  the  same
methodology as the trial court.   Green Spring Farms v. Kersten, 136 Wis.2d 304,
315, 401 N.W.2d 816, 820 (1987).   Generally summary judgment is proper where
there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law.  Id.
The interpretation of a contract is a question of law, which we review
de novo.  Edwards v. Petrone, 160 Wis.2d 255, 258, 465 N.W.2d 847, 848 (Ct. App.
1990).   The objective in construing a contract is to ascertain the intent of the parties
from the contractual language.   Waukesha Concrete Prods. Co. v. Capitol Indem.
Corp., 127 Wis.2d 332, 339, 379 N.W.2d 333, 336 (Ct. App. 1985).   If the terms of
the contract are plain and unambiguous, it is the court’s duty to construe the contract
according to its plain meaning even though one of the parties may have construed it
differently.   Waukesha Concrete Prods. Co. v. Capitol Indem. Corp., 127 Wis.2d
332, 339, 379 N.W.2d 333, 336 (Ct. App. 1985).   Whether a contract is ambiguous
in the first instance is a question of law, which we decide independently of the trial
court.   Wausau Underwriters Ins. Co. v. Dane County, 142 Wis.2d 315, 322, 417
N.W.2d 914, 916 (Ct. App. 1987).   Ambiguity exists in a contract if it is reasonably
2    It appears the trial court did not separately address the claim of promissory estoppel.
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No. 98-1978
susceptible to more than one meaning.   Id.   If a contract is ambiguous, the court then
may consider evidence beyond the document itself to determine the intent of the
parties.   Spencer v. Spencer, 140 Wis.2d 447, 450, 410 N.W.2d 629, 630 (Ct. App.
1987).
The trial court entered a written opinion carefully evaluating Lesky’s
claim for breach of contract, and we agree with its analysis.   Like the trial court, we
conclude that the 1987 lease agreement plainly permitted the County to prevent the
automatic renewal of that lease by sending a timely notice, which it did.    The
provision permitting a termination by the County for violations of the agreement
does not conflict with the “non-renew” provision and plainly does not mean that the
agreement  continues  indefinitely  unless  Lesky  violates  its  terms.    Rather  the
“termination for breach” provision permits the County to terminate the agreement
within its one-year term if the conditions of that provision are met.   Nor does the
December 11, 1987 addendum create any uncertainty concerning the “non-renew”
provision  in  the  agreement.    The  addendum  does  not  affect  the                    “non-renew”
provision in any way, but rather states that the “first option to renew” provision does
not apply if the agreement is terminated because of Lesky’s violation of its terms.
Since we conclude that these provisions are not ambiguous, we, like
the trial court, also conclude that the extrinsic evidence Lesky submits to show his
understanding of these terms is not relevant.
Lesky also contends that, even if the County did not breach the express
terms of the 1987 agreement by not renewing it, there are factual issues regarding
whether it breached its duty of good faith.   On this issue, again, we agree with the
trial court.
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No. 98-1978
Wisconsin law recognizes that every contract implies good faith and
fair dealing between the parties to it.   Foseid v. State Bank of Cross Plains, 197
Wis.2d 772, 796, 541 N.W.2d 203, 212 (Ct. App. 1995).   This concept of good
faith:
“[e]xcludes a variety of types of conduct characterized as
involving                                                                             ‘bad  faith’  because  they  violate  community
standards of decency, fairness or reasonableness.”   …
Subterfuges and evasions violate the obligation of good
faith  in  performance  even  though  the  actor  believes  his
conduct to be justified.    But the obligation goes further:
bad faith may be overt or may consist of inaction, and fair
dealing  may  require  more  than  honesty.     A  complete
catalogue  of  types  of  bad  faith  is  impossible,  but  the
following  types  are  among  those  which  have  been
recognized in judicial decisions:   evasion of the spirit of the
bargain,  lack  of  diligence  and  slacking  off,  willful
rendering of imperfect performance, abuse of a power to
specify terms, and interference with or failure to cooperate
in the other party’s performance.
Id. (citing RESTATEMENT (SECOND) OF CONTRACTS § 205 cmt. a & d).
Our supreme court has found a breach of the covenant of good faith
where the actions of one party, while not breaching any specific term of the
written contract,  “stripped nearly all the flesh from the bones” of the contract,
“accomplishing exactly what the agreement of  the parties sought to prevent.”
Chayka v. Santini, 47 Wis.2d 102, 107, 176 N.W.2d 561, 564 (1970).   However,
we have also held that where a contracting party complains of acts of the other
party that are specifically authorized by the agreement, there is no breach of the
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No. 98-1978
covenant of good faith.   Super Valu Stores, Inc. v. D-Mart Food Stores, Inc., 146
Wis.2d 568, 577, 431 N.W.2d 721, 726 (Ct. App. 1988).3
The  1987  lease  agreement  specifically  permitted  either  party  to
decide not to renew the agreement, upon proper notice, at the end of each one-year
term.   By its plain terms, Lesky was guaranteed the concession for one year and
the first option to enter into another lease agreement on mutually agreeable terms
(assuming he did not violate any term of the agreement).   There is no suggestion in
the agreement that Lesky was guaranteed any profits or any recoupment on the
investments he might choose to make in his mobile home, or in facilities and
structures he decided to erect.   The County’s decision not to renew at the end of
the fifth one-year term did not strip “nearly all the flesh from the bones” of the
agreement and did not subvert or evade the intent of the parties as expressed in the
plain language of the agreement.
We reach the same conclusion concerning the County’s decision not
to agree to a  “first option to renew” provision in the second lease agreement.
There is evidence that Lesky objected to the elimination of this provision in the
second agreement.   But the first agreement, by its plain terms, did not obligate the
County to include that provision in a second lease agreement, as the language “on
terms mutually agreeable between the … parties” plainly states.4   The implied duty
of good faith is not a vehicle for considering extrinsic evidence to alter the plain
3    Lesky argues that Sons of Thunder, Inc. v. Borden, Inc., 690 A.2d 575 (N.J. 1997),
supports its position that the County breached its implied duty of good faith.    We find it
unnecessary to  consider  cases  from other jurisdictions,  since  Wisconsin  case  law  provides
adequate guidance.
4    We do not understand Lesky to be arguing that the County breached the 1987 lease
agreement by not providing him the first option to enter into another lease agreement with the
County.
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No. 98-1978
terms of a contract.   We conclude the County’s actions—not renewing the first
agreement after five years and entering into a second agreement for a three-year
term that did not have the “first option to renew” provision—do not, as a matter of
law,  “violate  community  standards  of  decency,  fairness,  and  reasonableness.”
Foseid, 197 Wis.2d at 796, 541 N.W.2d at 213.
Promissory Estoppel
Lesky also claims that he is entitled to relief under the doctrine of
promissory  estoppel.    The  three  elements  of  promissory  estoppel  are:          (1) a
promise  that  the  promisor  should  reasonably  expect  to  induce  action  or
forbearance of a definite and substantial character on the part of the promisee;
(2) actual inducement of such action or forbearance, and (3) the need to enforce
the promise to avoid injustice.   Hoffman v. Red Owl Stores, 26 Wis.2d 683, 698,
133 N.W.2d 267, 275 (1965).   Lesky argues there is evidence of the first element
because the County’s conduct, including its conduct with prior concessionaires
and  representations  made  to  Lesky  by  Fisher                                      (whom  Lesky  asserts  was  the
County’s agent in  1987), constitute an implied promise not to refuse to renew
Lesky’s lease without just cause, regardless of the terms of the 1987 agreement.
Lesky contends there is also evidence that he reasonably relied on that promise to
his detriment.
The general rule is that the existence of a contractual relationship
bars a claim based on promissory estoppel.   Kramer v. Alpine Valley Resort, Inc.,
108 Wis.2d 417, 425, 321 N.W.2d 293, 297 (1982).   However, this rule is subject
to an exception when the contract fails to address the essential elements of the
parties’ total relationship.    Id.    In Kramer, the court concluded that the lease
agreement did  not embody the  total business relationship between the  parties
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No. 98-1978
because “the narrowly drawn lease agreement dealt with one minor aspect, rent
and space, of a much larger business relationship, a workshop-gallery open daily
to the public.”   Id.   The court therefore concluded that the lease agreement did not
bar recovery for damages based on promises made to the plaintiff that the complex
would be open on a daily basis throughout the year and was to be a permanent
place for craftsmen to sell their products; those promises were essential features of
the business relationship, the court concluded, because the written lease agreement
was meaningless without the underlying promise that the complex would continue
operating.   Id.
In contrast to the facts in Kramer, the 1987 lease agreement was a
comprehensive agreement dealing with the total business relationship between Lesky
and the County.   The agreement did address the term of the agreement, the renewal
of  the  agreement,  the  conditions  upon  which  Lesky could  erect structures  and
facilities, and Lesky’s rights regarding another lease agreement if this one were not
renewed (through no fault of Lesky).   Lesky’s argument is with the interpretation of
these provisions; but he cannot persuasively argue that the 1987 agreement did not
address  his  rights  and  the  County’s  obligations  regarding  termination  of  the
agreement.   We conclude there are no disputed facts concerning Lesky’s claim for
promissory estoppel and the County is entitled to judgment on that claim as a matter
of law.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
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