SCHUDSON, J.
Nauga, Inc., d/b/a Communication Connection (Nauga), appeals from the trial court judgment in its favor, entered by Judge Michael J. Barron following a jury trial, against Westel Milwaukee Company, Inc., d/b/a Cellular One (Westel), awarding more than $57,000 for breach of contract but denying pre-judgment interest. Nauga also appeals from Judge Barron's orders concluding that Westel's change of its commission schedule was not a violation of the Wiscon[309]*309sin Fair Dealership Law (WFDL), and that it (Nauga) was not a dealer under the WFDL, and dismissing its WFDL claim. Additionally, Nauga appeals from an order, entered by Judge John J. DiMotto in a second Nauga/Westel case, and adopted by Judge Victor Manian (who succeeded to Judge Barron's calendar) in the first Nauga/Westel case,- denying enforcement of the settlement contained in Nauga and Westel's July 1, 1996 "Authorized Agency Agreement," and rescinding that new agreement.
Nauga claims that Judge Barron erred as a matter of law in: (1) concluding that Westel's change of the commission schedule was not "a substantial change in the competitive circumstances of the dealership agreement" under the WFDL; (2) concluding that it was not a "dealer" within the meaning of the WFDL; and (3) denying its request for pre-judgment interest. Nauga also argues that Judge DiMotto erred as a matter of law in denying its motion to enforce the settlement contained in its new agency agreement with Westel and in rescinding that contract. We need not address Nauga’s first three arguments because we conclude that the trial court, in the second case, erred in rescinding the new agency agreement containing the settlement, enforcement of which resolves both cases.
I. BACKGROUND
In 1991, Nauga entered into an agency contract with Westel to market cellular telephone services. In 1993, Nauga filed an action against Westel complaining of lost sales resulting from Westel's alleged altering of the terms of the original contract, and claiming: (1) breach of contract; (2) violation of WFDL; (3) injury to business; and (4) tortious interference with existing and prospective contractual relations. The [310]*310parties ultimately proceeded to a jury trial, before Judge Barron, only on the breach of contract claim and part of the WFDL claim.
Deciding pretrial motions, Judge Barron concluded that the agency agreement allowed Westel to change a commission schedule without giving the notice referenced in the WFDL and, therefore, that Westel's change of Nauga's rate of commission was not a substantial change in competitive circumstances under the WFDL. Accordingly, the court ruled that Nauga could not present evidence of alleged damages or receive an award relating to the commission schedule change. At trial, shortly before the parties rested, the trial court further ruled that Nauga was not a dealer within the meaning of the WFDL, thereby eliminating the remaining WFDL issues from jury consideration. Thus, the jury only answered questions relating to the alleged breach of contract; the jury found in favor of Nauga.1 On motions after verdict, the [311]*311trial court denied Nauga's motion for pre-judgment interest.
In 1995, in a case before Judge DiMotto, Nauga sued Westel again, claiming that Westel breached their contract by hiring a Nauga employee, and that Westel violated the WFDL by engaging in an unfair trade practice.
In 1996, while Nauga's first suit was on appeal and Nauga's second suit was pending before Judge DiMotto, Westel offered a new agency agreement to its Wisconsin agents, including Nauga. The agreement included paragraph 30.10, a waiver of pending claims provision, providing, in part:
AGENT's execution of this Agreement shall constitute acknowledgment that all of Cellular One's obligations under any predecessor agreements between Cellular One and AGENT have been fully performed, and that AGENT hereby releases any claim of any kind whatsoever which it now has or may have in the future arising from any predecessor agreement or relationship between Cellular One and the AGENT.
.Counsel for Nauga, believing that paragraph 30.10 would release Westel from the claims in the two pending law suits, added paragraph 7.7, providing, in part:
Payment. In exchange for AGENT accepting the duties and responsibilities outlined in this agreement, including the waiver of its claims under Article 30.10, Cellular One agrees to pay to AGENT the sum of $250,000. The payment is due upon the [312]*312inception of this agreement, but not later than September 15,1996.
Nauga and Westel executed the new contract that included both paragraphs 30.10 and 7.7. Nauga and Westel, through their attorneys, signed a stipulation for the dismissal of both cases. Nauga then demanded payment of $250,000. Counsel for Westel responded by withdrawing from the stipulation and writing a letter to counsel for Nauga stating, in part, "This was the first time that I became aware that Nauga expected any compensation for abandoning its claims in both actions and that Nauga had made any changes to the Agency Agreement." When Westel refused to pay, Nauga filed a motion to enforce the settlement.
Advised of Nauga's motion, this court issued an order holding the appellate proceedings in abeyance and remanding the first suit to the trial court, before Judge Manian, for a ruling on Nauga's motion. Meanwhile, the second suit was still pending before Judge DiMotto and, because the issue on Nauga's motion in both suits was identical, the parties agreed, with Judge Manian's approval, that Judge DiMotto's decision would apply to both.
Judge DiMotto denied Nauga's motion to enforce the $250,000 settlement agreement. He concluded that although Nauga had not committed fraud in the formation of the settlement agreement, Nauga and Westel had not come to a meeting of the minds in reaching the settlement and, therefore, that the new contract was "void and unenforceable in its entirety ab initio." Thus, Nauga now appeals Judge DiMotto's order denying its motion and rescinding the contract containing the settlement agreement.
[313]*313II. DISCUSSION
Construction of an unambiguous contract presents a question of law, which we review de novo. See Koenings v. Joseph Schlitz Brewing Co., 126 Wis. 2d 349, 366, 377 N.W.2d 593, 602 (1985). When reviewing a trial court's conclusion on whether a contract is enforceable, we examine the contract to determine what the parties contracted to do, not to make or reform it. See Wisconsin Marine & Fire Ins. Co. Bank v. Wilkin, 95 Wis. 111, 115, 69 N.W. 354, 354 (1897) (quoted with approval in Marion v. Orson's Camera Ctrs. Inc., 29 Wis. 2d 339, 345, 138 N.W.2d 733, 736-37 (1966)). As the supreme court recently explained:
[MJutual assent, or "meeting of the minds []"... does not mean that parties must subjectively agree to the same interpretation at the time of contracting. Instead, mutual assent is judged by an objective standard, looking to the express words the parties used in the contract ....
Free access — add to your briefcase to read the full text and ask questions with AI
SCHUDSON, J.
Nauga, Inc., d/b/a Communication Connection (Nauga), appeals from the trial court judgment in its favor, entered by Judge Michael J. Barron following a jury trial, against Westel Milwaukee Company, Inc., d/b/a Cellular One (Westel), awarding more than $57,000 for breach of contract but denying pre-judgment interest. Nauga also appeals from Judge Barron's orders concluding that Westel's change of its commission schedule was not a violation of the Wiscon[309]*309sin Fair Dealership Law (WFDL), and that it (Nauga) was not a dealer under the WFDL, and dismissing its WFDL claim. Additionally, Nauga appeals from an order, entered by Judge John J. DiMotto in a second Nauga/Westel case, and adopted by Judge Victor Manian (who succeeded to Judge Barron's calendar) in the first Nauga/Westel case,- denying enforcement of the settlement contained in Nauga and Westel's July 1, 1996 "Authorized Agency Agreement," and rescinding that new agreement.
Nauga claims that Judge Barron erred as a matter of law in: (1) concluding that Westel's change of the commission schedule was not "a substantial change in the competitive circumstances of the dealership agreement" under the WFDL; (2) concluding that it was not a "dealer" within the meaning of the WFDL; and (3) denying its request for pre-judgment interest. Nauga also argues that Judge DiMotto erred as a matter of law in denying its motion to enforce the settlement contained in its new agency agreement with Westel and in rescinding that contract. We need not address Nauga’s first three arguments because we conclude that the trial court, in the second case, erred in rescinding the new agency agreement containing the settlement, enforcement of which resolves both cases.
I. BACKGROUND
In 1991, Nauga entered into an agency contract with Westel to market cellular telephone services. In 1993, Nauga filed an action against Westel complaining of lost sales resulting from Westel's alleged altering of the terms of the original contract, and claiming: (1) breach of contract; (2) violation of WFDL; (3) injury to business; and (4) tortious interference with existing and prospective contractual relations. The [310]*310parties ultimately proceeded to a jury trial, before Judge Barron, only on the breach of contract claim and part of the WFDL claim.
Deciding pretrial motions, Judge Barron concluded that the agency agreement allowed Westel to change a commission schedule without giving the notice referenced in the WFDL and, therefore, that Westel's change of Nauga's rate of commission was not a substantial change in competitive circumstances under the WFDL. Accordingly, the court ruled that Nauga could not present evidence of alleged damages or receive an award relating to the commission schedule change. At trial, shortly before the parties rested, the trial court further ruled that Nauga was not a dealer within the meaning of the WFDL, thereby eliminating the remaining WFDL issues from jury consideration. Thus, the jury only answered questions relating to the alleged breach of contract; the jury found in favor of Nauga.1 On motions after verdict, the [311]*311trial court denied Nauga's motion for pre-judgment interest.
In 1995, in a case before Judge DiMotto, Nauga sued Westel again, claiming that Westel breached their contract by hiring a Nauga employee, and that Westel violated the WFDL by engaging in an unfair trade practice.
In 1996, while Nauga's first suit was on appeal and Nauga's second suit was pending before Judge DiMotto, Westel offered a new agency agreement to its Wisconsin agents, including Nauga. The agreement included paragraph 30.10, a waiver of pending claims provision, providing, in part:
AGENT's execution of this Agreement shall constitute acknowledgment that all of Cellular One's obligations under any predecessor agreements between Cellular One and AGENT have been fully performed, and that AGENT hereby releases any claim of any kind whatsoever which it now has or may have in the future arising from any predecessor agreement or relationship between Cellular One and the AGENT.
.Counsel for Nauga, believing that paragraph 30.10 would release Westel from the claims in the two pending law suits, added paragraph 7.7, providing, in part:
Payment. In exchange for AGENT accepting the duties and responsibilities outlined in this agreement, including the waiver of its claims under Article 30.10, Cellular One agrees to pay to AGENT the sum of $250,000. The payment is due upon the [312]*312inception of this agreement, but not later than September 15,1996.
Nauga and Westel executed the new contract that included both paragraphs 30.10 and 7.7. Nauga and Westel, through their attorneys, signed a stipulation for the dismissal of both cases. Nauga then demanded payment of $250,000. Counsel for Westel responded by withdrawing from the stipulation and writing a letter to counsel for Nauga stating, in part, "This was the first time that I became aware that Nauga expected any compensation for abandoning its claims in both actions and that Nauga had made any changes to the Agency Agreement." When Westel refused to pay, Nauga filed a motion to enforce the settlement.
Advised of Nauga's motion, this court issued an order holding the appellate proceedings in abeyance and remanding the first suit to the trial court, before Judge Manian, for a ruling on Nauga's motion. Meanwhile, the second suit was still pending before Judge DiMotto and, because the issue on Nauga's motion in both suits was identical, the parties agreed, with Judge Manian's approval, that Judge DiMotto's decision would apply to both.
Judge DiMotto denied Nauga's motion to enforce the $250,000 settlement agreement. He concluded that although Nauga had not committed fraud in the formation of the settlement agreement, Nauga and Westel had not come to a meeting of the minds in reaching the settlement and, therefore, that the new contract was "void and unenforceable in its entirety ab initio." Thus, Nauga now appeals Judge DiMotto's order denying its motion and rescinding the contract containing the settlement agreement.
[313]*313II. DISCUSSION
Construction of an unambiguous contract presents a question of law, which we review de novo. See Koenings v. Joseph Schlitz Brewing Co., 126 Wis. 2d 349, 366, 377 N.W.2d 593, 602 (1985). When reviewing a trial court's conclusion on whether a contract is enforceable, we examine the contract to determine what the parties contracted to do, not to make or reform it. See Wisconsin Marine & Fire Ins. Co. Bank v. Wilkin, 95 Wis. 111, 115, 69 N.W. 354, 354 (1897) (quoted with approval in Marion v. Orson's Camera Ctrs. Inc., 29 Wis. 2d 339, 345, 138 N.W.2d 733, 736-37 (1966)). As the supreme court recently explained:
[MJutual assent, or "meeting of the minds []"... does not mean that parties must subjectively agree to the same interpretation at the time of contracting. Instead, mutual assent is judged by an objective standard, looking to the express words the parties used in the contract .... [TJhe key is "not necessarily what [the parties] intended to agree to, but what, in a legal sense, they did agree to, as evidenced by the language they saw fit to use."
Management Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 157, 177-78, 557 N.W.2d 67, 75-76 (1996) (internal quotation marks and quoted source omitted) (first three bracket sets added; "[the parties]" in Management Computer Servs.).
Nauga does not dispute the trial court's finding that Westel never truly intended to assent to all the terms of the new agency agreement. Indeed, Nauga concedes exactly what Westel admits — that Westel failed to properly and thoroughly review the contract before executing it. Nauga correctly argues, however, [314]*314that Westel's negligence does not relieve it of contractual obligations, and that Westel's true intentions do not render the new agency agreement unenforceable.
The law is clear: absent fraud or mutual mistake, an executed unambiguous written contract is enforceable. As the supreme court explained many years ago in a breach of lease action:
The facts already related clearly establish that there was no mutual mistake as to such termination clause, since Carney and Rutter, as officers representing the respondent in the execution of the lease, had no intention whatever with respect to the termination clause. They had not even read it and did not know that it was in the lease....
"To justify reformation the evidence must be clear and convincing that both parties intended to make a different instrument, and must also clearly show that both had agreed upon facts which were different than those set forth in the instrument."
Furthermore, the negligence of respondent's officers in not reading the lease, which reading would have disclosed the existence of the termination clause, bars them from having reformation....
"It is well settled that, where a party accepts a written instrument in consummation of an agreement entered into, it is his duty to know its contents, unless there be fraud or mistake of such a nature that he could not reasonably have informed himself when put upon inquiry. Men, in their dealings with each other, cannot close [315]*315their eyes to the means of knowledge equally accessible to themselves and those with whom they deal, and then ask courts to relieve them from the consequences of their lack of vigilance."
Carney-Rutter Agency v. Central Office Bldgs., 263 Wis. 244, 252-53, 57 N.W.2d 348, 352 (1953) (citations omitted). Thus, regardless of the parties' actual intentions, their execution of an unambiguous written contract establishes an enforceable "meeting of the minds" as a matter of law.
Generally, only mutual mistake or fraud will excuse a party from the terms of an executed unambiguous written agreement. See id. In the instant case, the settlement agreement is unambiguous, and neither fraud nor mutual mistake occurred. The trial court's written order specifically states, "The Court does not find that fraud was committed by [Nauga] with regard to the alleged settlement." On appeal, Westel does not directly challenge that finding.2 Further, Westel does not claim mutual mistake. Westel's argument rests on [316]*316the contention, as expressed in its brief to this court, that its "unilateral mistake may he sufficient grounds for rescission and cancellation." (Emphasis added.)3
Thus, emerging from this rather complicated litigation are uncomplicated facts governed by clear legal principles. In short, while Nauga and Westel were litigating two suits before the trial and appellate courts, Westel submitted a new agency agreement to Nauga that included paragraph 30.10 stating, in part:
AGENT'S execution of this Agreement shall constitute acknowledgment . . . that AGENT hereby releases any claim of any kind whatsoever which it now has or may have in the future arising from any predecessor agreement or relationship between Cellular One and the AGENT.
The provision, "hereby releasing] any claim of any kind whatsoever," if enforceable, encompasses Nauga's [317]*317claims against Westel in the two pending law suits.4 Realizing the potential consequences of paragraph 30.10, counsel for Nauga added paragraph 7.7 stating, in part:
Payment. In exchange,for AGENT accepting the duties and responsibilities outlined in this agreement, including the waiver of its claims under Article 30.10, Cellular One agrees to pay to AGENT the sum of $250,000.
Nauga and Westel executed the new agreement, containing both paragraphs 30.10 and 7.7. Paragraphs 30.10 and 7.7 are not ambiguous; the agreement was not reached by fraud or mutual mistake. The agreement is valid and enforceable.
Although enforcement of the $250,000 settlement may seem harsh where one party, in fact, did not intend to assent, such an outcome is based on sound principles embodied in contract law. Indeed, very recently, the Seventh Circuit allowed for "fairly harsh implications" under circumstances comparable to those of this case. See Pace Communications, Inc. v. Moonlight Design, Inc., 31 F.3d 587, 590 (7th Cir. 1994). The court explained:
[318]*318There is no requirement that parties discuss a contract's every term in order to be bound by it — indeed, such a rule would reward parties for their failure to read what they sign, hardly an incentive that contract law would seek to create. The district court relied on a line from an Illinois appellate court opinion: "the failure of the parties to agree upon or even discuss an essential term of a contract may indicate that the mutual assent required to make or modify a contract is lacking." But [the Illinois court] was discussing an oral contract, where the parties' discussions are the beginning and end of the analysis. We do not read [the Illinois case] to stand for the proposition that an exchange of documents does not give rise to a contractual relationship unless the parties discuss the contract's terms.
Id. at 592 (citation omitted).
Accordingly, we conclude that the parties' execution of their new agency agreement established an enforceable contract requiring settlement of their suits pursuant to paragraphs 30.10 and 7.7. Therefore, we reverse the trial court order of Judge DiMotto and remand to the trial courts of Judge DiMotto and Judge Manian for the entry of appropriate orders dismissing Nauga's underlying actions and enforcing the $250,000 settlement agreement.5
[319]*319By the Court. — Judgment and orders reversed.