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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 23, 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.                                                                                   98-2596-FT
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
DISTRICT IV
GREEN VALLEY DISPOSAL CO., INC.,
PLAINTIFF-APPELLANT,
V.
SOILS AND ENGINEERING SERVICES, INC.,
DEFENDANT-RESPONDENT.
APPEAL from a judgment of the circuit court for Dane County:
DANIEL R. MOESER, Judge.  Affirmed.
ROGGENSACK,  J.1    Green  Valley  Disposal  Co.,  Inc.                               (Green
Valley) appeals from a judgment of the circuit court awarding it money damages
for the unpaid portion of an October 1994 service contract between Green Valley
and Soils Engineering Services, Inc. (SES), after concluding that the provision for
1  This appeal is decided by one judge pursuant to § 752.31(2)(a), STATS.




No. 98-2596-FT
the length of the service agreement in a document the parties signed in May of
1997 was unconscionable; and therefore, unenforceable.   We conclude that the
October 1994 contract, as written, does not reflect the actual intent of the parties
due to their mutual mistake about the contract’s duration.   We give force to the
parties’ actual intent and conclude that the May 1997 document was not a new
service contract, rather it was a rate and frequency of collection change to the
October 1994 contract which was still in force.   SES terminated the 1994 contract
when it gave notice of termination on September 4, 1997, and the circuit court
correctly calculated the damages due Green Valley based on that termination.
Therefore, we affirm.
BACKGROUND
On October  18,  1994, SES entered into a written service contract
with Green Valley whereby Green Valley agreed to remove waste from SES’s
premises once per week for a $70.00 per month payment.   Green Valley drafted
the contract, a one page document with printing on both sides of the page.   Two
paragraphs of the 1994 contract provide:
TERM.     This  Agreement  is  a  legally  binding
contract.   Customer grants to Contractor the exclusive right
to   collect   and   dispose   waste   materials                                       (including
recyclables) pursuant to this Agreement for an initial term
of  three                                                                              (3)  years.   This  Agreement  shall  then  be
automatically renewed for an additional three (3) year term.
Thereafter,  unless  either  party  gives  written  notice  of
termination to the other by Certified Mail at least sixty (60)
days prior to the end of the renewal term, this Agreement
shall  be  automatically  renewed  for  like  periods  until
terminated as provided above.   The Schedule of Charges
during  any  renewal  period  shall  be  adjusted  to  reflect
increases or decreases in the Consumer Price Index since
the prior renewal.
The contract also provides:
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No. 98-2596-FT
CHANGES.   Changes in the Schedule of Charges,
frequency of collection service, number, capacity and type
of equipment may be agreed to orally or in writing, by the
parties.   Consent to oral changes shall be evidenced by the
actions and practices of the parties.
Despite the language contained in the term clause, both of Green
Valley’s agents, Edith Klimoski and William Bacher, testified that the service
agreement was only three years in duration and that the automatic renewal was
inapplicable, if a sixty-day notice was received prior to expiration of the initial
three-year term.   Octavio Tejeda, president of SEC, also understood that the 1994
contract was for three years.
From October  1994 to May  1997, Green Valley collected SES’s
waste, as agreed upon in the contract.   During that time, Green Valley increased its
rates.                                                                                   When  Tejeda  became  concerned  that  Green  Valley’s  charges  were
excessive, he contacted Green Valley and asked it to reduce the monthly charges.
The parties agreed to adjust the frequency of service from every week to every
other week and to reduce the monthly charge to $54.80.   These changes were set
forth on a form that had the same preprinted conditions as did the 1994 contract,
which form was signed by Klimoski and Tejeda on May  1,  1997.    Although
Tejeda signed for the changes in the  1994 contract, it is uncontested that the
parties never discussed increasing the length of time that the service agreement
would run, nor did they discuss terminating the 1994 contract.
After SES agreed to the rate and frequency adjustment of the 1994
contract, Tejeda learned that another waste removal company was offering a lower
rate  for  the  same  service  that  Green  Valley  was  providing  to  SES.    Tejeda
contacted Klimoski and complained about Green Valley’s rates.   Tejeda continued
to be dissatisfied with the service rate offered by Green Valley; and therefore, on
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No. 98-2596-FT
September  4,  1997,  Tejeda  sent Klimoski a  letter  advising  her  that SES was
terminating its waste removal contract with Green Valley, effective August 31,
1997.   SES paid for services through that date.
Green Valley sued SES to enforce what it contended was a right to
provide services for an additional three years.   On July 13, 1998, a trial was held
during which Green Valley argued that the May 1997 document constituted a new
contract which did not expire until May 1, 2000, at the earliest, and that SES had
breached  that  agreement.     The  circuit  court  concluded  that  the  paragraph
governing the term of what Green Valley alleged was a new contract, commencing
May 1, 1997, was unconscionable.   It found that the paragraph governing the term
of the agreement had been drafted by Green Valley in a “sneaky” manner because
that   paragraph   described   a   six-year   term,   contrary   to   Green   Valley’s
representations  to  its  customers.    Therefore,  the  circuit  court  concluded  the
extended term for the service agreement was unenforceable.
The  circuit  court  then  held  that  the  October                                       1994  contract  was
enforceable, at the rates agreed to in 1997, as a three-year contract that could be
terminated with a sixty-day notice.   The court found that SES’s September 4, 1997
letter notifying Green Valley that it would no longer need its services was a sixty-
day termination notice.   Based on that notice, the circuit court entered judgment in
favor of Green Valley for $608.12, which represented the monthly charge, on a
per diem basis, through November  4,  1997, statutory costs and partial attorney
fees.   Green Valley appeals.
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No. 98-2596-FT
DISCUSSION
Standard of Review.
Whether a contract term is unconscionable is a question of law,
which we review de novo.   Leasefirst v. Hartford Rexall Drugs, Inc., 168 Wis.2d
83, 89, 483 N.W.2d 585, 587   (Ct. App. 1992).
Unconscionability.
Unconscionability  has  been  referred  to  as                                         “the  absence  of  a
meaningful choice on the part of one party, together with contract terms that are
unreasonably favorable to the other party.”    Id.                                     The relevant inquiry when
determining questions of alleged unconscionability involves the examination of
two  categories  of  unconscionability:  procedural  and  substantive.     Id.     A
contractual  term  is  deemed  unconscionable  when  there  is  both  a  quantum of
procedural and a quantum of substantive unconscionability.   Kohler Co. v. Wixen,
204 Wis.2d 327, 339-40, 555 N.W.2d 640, 645 (Ct. App. 1996).
Procedural  unconscionability  relates  to  inequalities  between  the
parties that affect the  meeting  of  minds, such as age,  education,  intelligence,
business  acumen  and  experience,  relative  bargaining  power,  who  drafted  the
contract, whether alterations in the printed terms were possible, and whether there
were alternative sources of supply for the goods or services in question.   Discount
Fabric House v. Wisconsin Tel. Co., 117 Wis.2d 587, 602, 345 N.W.2d 417, 425
(1984).                                                                                Substantive  unconscionability  pertains  to  the  reasonableness  of  the
contract terms themselves.   That is, do they unreasonably favor one of the parties.
Id.
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No. 98-2596-FT
There was no procedural unconscionability here. Tejeda is a civil
engineer and has been associated with SES since 1976.   As the president of SES,
he is responsible for reviewing documents and reports, and he has entered into
contracts on behalf of the company in the past.   SES had alternative sources for
obtaining waste disposal service, as evidenced by Tejeda’s ability to obtain service
from one of Green Valley’s competitors in August  1997.    Based on his age,
education, intelligence, business experience, and choice in waste disposal services,
Tejeda was in an equal bargaining position with Green Valley.   That Green Valley
drafted the 1997 document and did not explain its terms to Tejeda is insufficient to
conclude  that  it  was  unconscionable  because  Tejeda,  as  a  party  with  equal
bargaining power, was not at a disadvantage in accepting or rejecting its terms.
Therefore, we conclude that there was not a sufficient quantum of procedural
unconscionability to  tip  the  scales in favor  of  concluding that the  May  1997
document was unconscionable.2
Mutual Mistake.
Although  we  conclude  that  the  May                                                             1997  document  was  not
unconscionable, we nevertheless agree with the circuit court3 that that document
was unenforceable as a new service agreement because the October 1994 service
contract was still in effect when the parties signed the May 1997 document and
there was no meeting of the minds to extend that contract for an additional three
2  We  do  not  address  whether  there  was  substantive  unconscionability  because  we
conclude that there was no procedural unconscionability and a determination of unconscionability
requires a quantum of both factors.  Kohler Co. v. Wixen, 204 Wis.2d 327, 340, 555 N.W.2d 640,
645 (Ct. App. 1996).
3  We affirm on reasons other than those relied on by the circuit court because the record
reveals support for the circuit court’s conclusion.   See State v. Horn, 139 Wis.2d 473, 490-91,
407 N.W.2d 854, 861-62 (1987).
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No. 98-2596-FT
years.   We reach this conclusion based on the undisputed intent of the parties with
regard to the October 1994 contract and the findings of the circuit court.
When interpreting a contract, the goal is to ascertain the parties’
intent, i.e., on what terms did they agree.   Goosen v. Estate of Standaert, 189
Wis.2d 237, 246, 525 N.W.2d 314, 318 (Ct. App. 1994).   Meeting of the minds
does not require that parties must subjectively agree to the same interpretation at
the time of contracting.   Nauga v. Westel Milwaukee Co., Inc., 216 Wis.2d 305,
312, 576 N.W.2d 573, 576 (Ct. App. 1998)  (citation omitted).   Instead, mutual
assent is judged by an objective standard, looking to the express words the parties
used in the contract.   Id.
Mutual mistake, however, will excuse a party from the terms of an
executed unambiguous written agreement.   Id. at 313, 576 N.W.2d at 576.   Mutual
mistake occurs when both parties agreed on terms which were different from those
set forth in the contract document.   Id. at 313, 576 N.W.2d at 577.   A mistake is
not mutual if only one party failed to inform himself of the contents of the written
contract; rather, mutual mistake requires that both parties labored under a common
misconception with respect to the terms of the written instrument.   Id. at 313-14,
576 N.W.2d at  577; Miller v. Stanich,  202 Wis.  539,  543,  230 N.W.  47,  48
(1930).   In such a situation, we will not enforce a contractual term to which neither
of the parties assented.   Instead, we will enforce the term intended by the parties as
evidenced by their words and actions.
The 1994 service contract contained a paragraph which provided that
the contract was for three years, with an automatic renewal for another three years.
Thereafter, the contract automatically renewed unless either party gave a sixty-day
notice of termination.   Despite the language contained in the term clause, both of
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No. 98-2596-FT
Green Valley’s agents, Klimoski and Bacher, stated that the service agreements
they presented to their customers were for terms of only three years and that the
automatic  renewal  was  inapplicable,  if  a  sixty-day  notice  of  termination  was
received prior to expiration of the initial three-year term.   Tejeda had the same
understanding of the  1994 contract.   Because both parties contracted under the
mistaken belief that either party could terminate that agreement after three years
provided  the  party  gave  sixty  days  notice,  the  written  document  does  not
accurately reflect the intent of the parties, and we will not enforce it as written.4
Instead, we give force to the term to which the parties mutually assented and
conclude that the parties agreed the October 1994 service contract would continue
through October 17, 1997 and automatically renew for an additional three years,
unless one of the parties gave a sixty-day notice of termination.
Prior  to  signing  the  May                                                                   1997  document,  the  parties  discussed
changing the rate and frequency of service, as is provided for in the 1994 contract,
but  neither  party  gave  notice  of  termination.    Tejeda  testified  there  was  no
discussion of extending the parties’ contractual relationship for an additional three
years.   That testimony is uncontradicted; and additionally, the record is void of
any testimony that Green Valley and Tejeda ever discussed the termination of the
1994 contract.   Because the initial three-year term had not expired and neither
party had given notice of termination, the October 1994 contract was still in force
when  the  parties  signed  the  May  1997  document.    Therefore,  the  May  1997
document is not enforceable as a new service contract; rather, it only amended the
monthly cost and frequency of service under the October 1994 service contract.
4  That the parties lived under the contract for nearly three years does not preclude our
conclusion that there was a mutual mistake with regard to the term provision because neither
party had cause to discover the mistake until the initial three-year term expired.
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No. 98-2596-FT
On September 4, 1997, Tejeda sent a notice of service termination to
Green Valley and terminated the October 1994 service contract, as amended by
the May 1997 document, effective November 4, 1997.   The circuit court found his
letter  was  a  sixty-day  notice  under  the                                              1994  contract  and  assessed  damages5
through November  4,  1997.    The circuit court also found that the May  1997
document contained  only credible  evidence  that SES consented  to a  rate  and
frequency of collection change as required by the changes clause of the October
1994 contract.   We do not disturb the circuit court’s findings of fact that are not
clearly erroneous.  Section 805.17(2), STATS.
CONCLUSION
The October  1994 contract, as written, does not reflect the actual
intent of the parties due to their mutual mistake about the length of time that
contract was to be operative.   Additionally, there is no evidence that the parties
terminated the 1994 contract when they signed the 1997 document.   Therefore, we
give force to the parties’ actual intent and conclude that the May 1997 document,
although  not  unconscionable,  was  not  enforceable  as  a  new  service  contract
because the October 1994 contract, as amended by the May 1997 agreement, was
in force until SES validly terminated the contract in September 1997.
By the Court.—Judgment affirmed.
This  opinion  will  not  be  published  in  the  official  reports.    See
RULE 809.23(1)(b)4., STATS.
5  The circuit court also awarded Green Valley costs and partial attorney fees; however,
neither party appeals that part of the judgment.
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No. 98-2596-FT
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