Horizon Bank, National Association v. Marshalls Point Retreat LLC

2018 WI 19

SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP832
COMPLETE TITLE: Horizon Bank, National Association,
Plaintiff-Appellant,
v.
Marshalls Point Retreat LLC and Marshall's Point
Association, Inc.,
Defendants,
Allen S. Musikantow,
Defendant-Respondent-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 373 Wis. 2d 767, 895 N.W.2d 855
(2017 – Unpublished)

OPINION FILED: March 6, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 7, 2017

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Door
JUDGE: D. T. Ehlers

JUSTICES:
CONCURRED:
DISSENTED: R.G. BRADLEY, J. dissents (opinion filed).
NOT PARTICIPATING:

ATTORNEYS:

For the defendant-respondent-petitioner, there were briefs
filed by James E. Goldschmidt, Donald K. Schott, and Quarles &
Brady LLP, Madison and Milwaukee. There was an oral argument by
Donald K. Schott.

For the plaintiff-appellant, there was a brief filed by
Melinda A. Bialzik, Samuel C. Wisotzkey, and Kohner, Mann &
Kailas, S.C., Milwaukee. There was an oral argument by Melinda
A. Bialzik.
 An amicus curiae brief was filed on behalf of Wisconsin
Bankers Association by Kirsten E. Spira, John E. Knight, and
Boardman & Clark LLP, Madison.

2
 2018 WI 19
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP832
(L.C. No. 2015CV125)

STATE OF WISCONSIN : IN SUPREME COURT

Horizon Bank, National Association,

Plaintiff-Appellant,

v. FILED
Marshalls Point Retreat LLC and Marshall's
Point Association, Inc., MAR 6, 2018

Defendants, Sheila T. Reiff
Clerk of Supreme Court

Allen S. Musikantow,

Defendant-Respondent-Petitioner.

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.

¶1 ANN WALSH BRADLEY, J. The petitioner, Allen S.

Musikantow (Musikantow), seeks review of an unpublished per

curiam decision of the court of appeals directing that the

circuit court apply a credit of $2,250,000 to a money judgment
 No. 2016AP832

entered against Musikantow as guarantor of a loan.1 Musikantow

contends that the court of appeals erred by limiting the credit

to the amount of the winning bid at the sheriff's sale thereby

precluding the circuit court from hearing evidence of the fair

value of the property after the confirmation of sale.

¶2 Specifically, Musikantow contends that Wis. Stat.

§ 846.165 (2015-16)2 does not require a circuit court to make a

determination of a guaranty credit at the time the foreclosure

sale is confirmed. He further argues that circuit courts have

1
Horizon Bank, Nat'l Ass'n v. Marshalls Point Retreat LLC,
No. 2016AP832, unpublished slip op., (Wis. Ct. App. Jan. 24,
2017) (per curiam) (reversing order of circuit court for Door
County, D.T. Ehlers, Judge).
2
Wis. Stat. § 846.165 provides in relevant part:

(1) No sale on a judgment of mortgage foreclosure
shall be confirmed unless 5 days' notice has been
given to all parties that have appeared in the
action. . . . and the notice shall state, in addition
to other matter required by law, the amount of the
judgment, the amount realized upon the sale, the
amount for which personal judgment will be sought
against the several parties naming them, and the time
and place of hearing.

(2) In case the mortgaged premises sell for less than
the amount due and to become due on the mortgage debt
and costs of sale, there shall be no presumption that
such premises sold for their fair value and no sale
shall be confirmed and judgment for deficiency
rendered, until the court is satisfied that the fair
value of the premises sold has been credited on the
mortgage debt, interest and costs (emphasis added).

All subsequent references to the Wisconsin statutes
are to the 2015-16 version unless otherwise indicated.

2
 No. 2016AP832

the discretion to decouple guaranty-related rulings from

underlying foreclosure sales.

¶3 We conclude that Wis. Stat. § 846.165 does not apply

to credits toward a judgment on a guaranty. Rather, it applies

to the relationship between only the mortgagee and mortgagor who

signed the promissory note underlying the mortgage. It

therefore cannot serve as authority for the proposition that,

when confirming a foreclosure sale, a circuit court must

determine the amount of a credit to be applied to a judgment on

a guaranty.

¶4 Further, we conclude that when an action for

foreclosure against a mortgagor and an action for a money

judgment on a guaranty are brought in the same proceeding as in

the instant case, the circuit court may, in its discretion,

decide the amount of a credit to be applied to a judgment on a

guaranty either at the time the sale is confirmed or at another

time. The questions of fair value for purposes of Wis. Stat.

§ 846.165 and the amount of any credit toward the judgment on
the guaranty are separate questions. Thus, the circuit court

did not erroneously exercise its discretion when it decoupled

the confirmation of sale from the determination of the guaranty

credit.

¶5 Finally, we determine that the stipulation in this

case does not establish that the amount of the winning bid at

the sheriff's sale shall be the sole credit toward the money

judgment against Musikantow.

3
 No. 2016AP832

¶6 Accordingly, we reverse the decision of the court of

appeals and remand to the circuit court for further proceedings

to determine the amount of the credit to be applied toward the

judgment against Musikantow as guarantor.

I

¶7 Horizon Bank, National Association (Horizon Bank)

loaned $5 million to Marshalls Point Retreat LLC (Marshalls

Point), secured by a mortgage on property located in Sister Bay.3

Musikantow, a member of Marshalls Point, signed a continuing

guaranty of payment for the loan.

¶8 Alleging that Marshalls Point had defaulted on the

loan, Horizon Bank brought a foreclosure action. In the same

action, Horizon Bank also brought a claim for a money judgment

against Musikantow pursuant to the terms of the guaranty.

¶9 The parties stipulated to the entry of judgment on

both of Horizon Bank's claims. The stipulation contained an

order for judgment, which the circuit court signed. A judgment

for foreclosure was entered against Marshalls Point and a money
judgment was entered against Musikantow as guarantor for

$4,045,555.55, the amount of principal and interest remaining on

the loan.

3
The property at issue is an 8,738 square foot house
situated on 21.20 acres with 797 feet of frontage along Lake
Michigan.

4
 No. 2016AP832

¶10 In addition, the stipulation provided that the Sister

Bay property may be sold at a sheriff's sale. It further stated

that:

[t]he amount paid to [Horizon Bank] from the proceeds
of said sale of the Premises, remaining after
deduction by [Horizon Bank] of the amount of interest,
fees, costs, expenses, disbursements and other charges
paid or incurred by [Horizon Bank] not included in the
monetary judgment against [Musikantow] (set forth
below) shall be credited by [Horizon Bank] as payment
on said monetary judgment.
¶11 At the sheriff's sale, Horizon Bank bought the Sister

Bay property for a credit bid of $2,250,000. The sole bid was

from Horizon Bank.

¶12 Horizon Bank moved the circuit court to confirm the

sale pursuant to Wis. Stat. § 846.165, arguing that the amount

of its bid at the sheriff's sale constituted "fair value" of the

Sister Bay property.4 In support of its determination of fair

value, Horizon Bank submitted two expert witness affidavits.

¶13 Additionally, Horizon Bank indicated in its motion to

confirm the sale that it would not seek a deficiency judgment

4
See Wis. Stat. § 846.165(2) ("In case the mortgaged
premises sell for less than the amount due and to become due on
the mortgage debt and costs of sale, there shall be no
presumption that such premises sold for their fair value and no
sale shall be confirmed and judgment for deficiency rendered,
until the court is satisfied that the fair value of the premises
sold has been credited on the mortgage debt, interest and
costs").

5
 No. 2016AP832

against Marshalls Point.5 Finally, it requested that the circuit

court apply the amount of the winning bid at the sheriff's sale

as a credit toward the judgment against Musikantow, thereby

reducing the amount of the money judgment by that amount.

¶14 In response to the motion to confirm the sale,

Marshalls Point and Musikantow "recognize[d] that the court must

find that the amount bid at sale represents fair value, even

though the mortgagee did not seek a deficiency judgment against

the mortgagor." They also conceded that "[f]air value is not

the same as fair market value."

¶15 Thus, Marshalls Point and Musikantow did not object to

the confirmation of sale at the price of Horizon Bank's winning

bid at the sheriff's sale on the condition that certain language

be added to the order confirming the sale. They sought language

to protect Musikantow from being bound to the amount of the

winning bid as the amount of the credit:

Notwithstanding anything in this order, the
confirmation of the sale of the collateral to Horizon
Bank, following a deficiency against the borrower,
shall have no collateral estoppel or res judicata
effect should Horizon Bank seek to recover against the
guarantor, Allen S. Musikantow, on all or any part of
the judgment against Allen S. Musikantow as guarantor
of this obligation.

5
A waiver of a deficiency judgment against Marshalls Point
does not preclude Horizon Bank from seeking payment from
Musikantow. Indeed, a deficiency judgment cannot be granted
against a guarantor because the guarantor's debt is pursuant to
a contract apart from the promissory note. Stellmacher v. Union
Mortg. Loan Co., 195 Wis. 635, 637, 219 N.W. 343 (1928).

6
 No. 2016AP832

¶16 Marshalls Point and Musikantow further indicated that,

if the requested language was not inserted into the order, they

would object "not to the confirmation of the sale itself, but to

the amount to be credited upon the judgment against

[Musikantow]." They asserted that the Sister Bay property had a

fair market value far in excess of the $2,250,000 winning bid,

arguing that the actual value of the property exceeded $10

million.

¶17 The circuit court held a hearing on the motion to

confirm the sale. Marshalls Point and Musikantow reiterated

their desire for additional language in the order as reflected

above. See supra, ¶15. Their counsel stated, "We don't oppose

confirmation of sale in and of itself at that price. What we

oppose is a finding of the value which would be binding on the

guarantor."

¶18 Additionally, counsel for Marshalls Point and

Musikantow indicated that a witness was present in the courtroom

who would testify that the Sister Bay property had a market
value exceeding $10 million. The circuit court adjourned and

rescheduled the hearing and the witness never testified.

¶19 At the next scheduled hearing, counsel for Marshalls

Point and Musikantow asserted that there was "a great deal of

testimony" that could be presented about the property's market

value. However, counsel did not offer this testimony based on

the belief "that it's really not necessary that we make an

evidentiary finding with respect to the value to be placed upon
the residence[.]"
7
 No. 2016AP832

¶20 Rather, counsel observed that the guaranty Musikantow

signed contained a governing law provision. This provision

stated that the guaranty "will be governed by federal law

applicable to lender and to the extent not preempted by federal

law, the laws of the State of Indiana without regard to its

conflicts of law provisions." Counsel expressed his view that

"it's clearly not a Wisconsin case in terms of the substantive

law. It is, however, in Wisconsin for procedural issues dealing

with the foreclosure."

¶21 Additionally, counsel indicated that Horizon Bank had

already filed a federal lawsuit in Florida, where Musikantow

resided, for the purpose of "authenticating" the judgment

against him. He argued that "what we're doing is we're going

above and beyond what's required in Wisconsin procedural law to

decide an issue that's . . . more likely to be litigated in the

State of Florida as to the value to be credited for that

property."

¶22 In response, Horizon Bank explained that "[t]he
federal action is a domestication of the money judgment that

this [c]ourt has already entered on the guarant[y] in these

proceedings." Horizon Bank further asserted, "The judgment has

been entered. He was personally served. He was under the

jurisdiction of the [c]ourt. The [c]ourt entered a money

judgment. Those issues are done." Thus, it requested that the

circuit court confirm the sheriff's sale and apply the

$2,250,000 proceeds from the sheriff's sale as "the only number
that can be credited to the judgment."
8
 No. 2016AP832

¶23 The circuit court granted Horizon Bank's motion to

confirm the sale. It further found "that a bid price of 2.25

million dollars represents fair and reasonable value for the

property." However, the circuit court declined to rule on the

credit to be applied toward the judgment against Musikantow as

guarantor.

¶24 In declining to rule on the amount of the credit, the

circuit court expressed its belief that because of the governing

law provision, the Florida district court would determine the

amount of the credit.6 The circuit court stated:

I guess if the federal courts kick this back to me to
make a decision [about] what is to be the appropriate
credit under the commercial guarant[y], well, then
we'll have a hearing and I'll make that decision. But
I'm not going to preempt federal law at this point.

Maybe the federal courts are going to kick it back
here. Maybe they're going to kick it back to Indiana.
I don't know whether they're going to kick it back.
If it's kicked back here, then I'll deal with
it. . . .

[T]his is a federal issue and I'm not going to deal
with it today.
¶25 Accordingly, the circuit court entered an order

confirming the sale. Consistent with its determination to leave

the calculation of Musikantow's credit for another day, it

6
The circuit court's belief in this regard was incorrect.
Horizon Bank later filed a motion to dismiss the Florida action,
which was granted. The amount of the credit was never
determined by the Florida court.

9
 No. 2016AP832

crossed out the final paragraph of the proposed order, which set

forth:

After application to the Judgment indebtedness of the
amount bid at sheriff's sale of $2,250,000, there
remains due under the Judgment entered against Allen
S. Musikantow the sum of $1,869,460.70, as of November
4, 2015, together with subsequently accruing interest,
fees and costs.
¶26 A month later, the circuit court entered another

order. "[I]n light of the language in the Guaranty document

indicating that it is to be governed by Federal Law[,]" the

circuit court stated that it would "decline to make a finding of

the amount to be credited against the judgment of Horizon Bank

[] against [] Musikantow as guarantor." The court advised it

would, "if requested by a Federal Court, make a determination as

to such amount to be credited against the judgment of Horizon

Bank [] against [] Musikantow."

¶27 Horizon Bank appealed the second order. On appeal,

Horizon Bank argued that the stipulation between the parties

controlled the amount of the credit to be applied toward the

judgment. The court of appeals agreed, reversing the circuit

court and remanding with the direction to amend the money

judgment against Musikantow by applying a sole credit of

$2,250,000. Horizon Bank, Nat'l Ass'n v. Marshalls Point

Retreat LLC, No. 2016AP832, unpublished slip op., ¶25 (Wis. Ct.

App. Jan. 24, 2017) (per curiam).

II

¶28 This case requires us to interpret Wis. Stat.
§ 846.165. Statutory interpretation is a question of law we

10
 No. 2016AP832

review independently of the determinations of the circuit court

and court of appeals. GMAC Mortg. Corp. v. Gisvold, 215

Wis. 2d 459, ¶29, 572 N.W.2d 466 (1998).

¶29 We are also asked to address whether the circuit court

erroneously exercised its discretion when it decoupled the

guaranty-related credit determination from the underlying

foreclosure action. This court will uphold the discretionary

decision of a circuit court as long as the circuit court's

exercise of discretion was not erroneous. Hull v. State Farm

Mut. Auto. Ins. Co., 222 Wis. 2d 627, ¶11, 586 N.W.2d 863

(1998). An exercise of discretion is erroneous if it is based

on an error of fact or law. Zarder v. Humana Ins. Co., 2010 WI

35, ¶21, 324 Wis. 2d 325, 782 N.W.2d 682.

¶30 Finally, we construe the stipulation between the

parties. The interpretation of a stipulation is also a question

of law we review independently of the determinations of the

circuit court and court of appeals. Stone v. Acuity, 2008 WI

30, ¶21, 308 Wis. 2d 558, 747 N.W.2d 149.
III

¶31 The court of appeals based its determination on the

language of the stipulation and its understanding that

Musikantow had conceded fair value. Nevertheless, to provide

context we begin our analysis by examining the statutory

procedure for confirmation of sale set forth in Wis. Stat.

§ 846.165. Subsequently, we address the circuit court's

discretion to set forth the procedure when foreclosure and a
money judgment on a guaranty are brought in the same proceeding.
11
 No. 2016AP832

Finally, we consider the stipulation of the parties and its

effect on the amount to be credited.

A

¶32 Wisconsin Stat. § 846.165 governs the procedure for

confirming a sheriff's sale of a foreclosed property. At issue

here is sub. (2), which provides:

In case the mortgaged premises sell for less than the
amount due and to become due on the mortgage debt and
costs of sale, there shall be no presumption that such
premises sold for their fair value and no sale shall
be confirmed and judgment for deficiency rendered,
until the court is satisfied that the fair value of
the premises sold has been credited on the mortgage
debt, interest and costs.
¶33 Statutory interpretation begins with the language of

the statute. State ex rel. Kalal v. Cir. Ct. for Dane Cty.,

2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. If the

meaning of the statute is plain, we need not further the

inquiry. Id.

¶34 The plain language of Wis. Stat. § 846.165(2)

indicates that it does not apply to a judgment obtained against

a third-party guarantor. It states that confirmation of sale

cannot occur until the circuit court "is satisfied that the fair

value of the premises sold has been credited on the mortgage

debt, interest and costs." § 846.165(2) (emphasis added).

Thus, the statute relates to the relationship between only the

mortgagee and mortgagor who signed the promissory note

underlying the mortgage. The "mortgage debt" referenced in the

12
 No. 2016AP832

statute is not the same as the debt stemming from a third-party

guaranty.

¶35 A guarantor's liability arises not from the debt

itself, but from a separate guaranty contract. Bank Mut. v.

S.J. Boyer Const., Inc., 2010 WI 74, ¶53, 326 Wis. 2d 521, 785

N.W.2d 462. "Therefore, although guarantors of payment are

personally liable for some amount according to the terms of

their guaranty contract, they are not personally liable for the

debt secured by the mortgage." Id.

¶36 Because the plain language of Wis. Stat. § 846.165(2)

is unambiguous, we need not pursue further inquiry. Kalal, 271

Wis. 2d 633, ¶45. We therefore conclude that § 846.165(2) does

not apply to credits toward a judgment on a guaranty. Rather,

it applies to the relationship between only the mortgagee and

mortgagor who signed the promissory note underlying the

mortgage. Accordingly, it cannot serve as authority for the

proposition that, when confirming a foreclosure sale, a circuit

13
 No. 2016AP832

court must also determine the amount of a credit to be applied

to a judgment on a guaranty.7

B

¶37 Our conclusion that Wis. Stat. § 846.165 applies to

the relationship between only the mortgagee and the debt

underlying the mortgage highlights the divergent tracks mortgage

related determinations and guaranty related determinations may

take. For example, the question of fair value for purposes of

confirming the sheriff's sale pursuant to § 846.165 presents a

different question than that of the credit a guarantor receives

when the subject property transfers by means of a foreclosure

and sale.

¶38 Those two questions are decided under separate

standards. A determination that the amount of proceeds at a

sheriff's sale constitutes "fair value" is subject to a "shock

the conscience" standard. See Bank of New York v. Mills, 2004

WI App 60, ¶18, 270 Wis. 2d 790, 678 N.W.2d 332. "The

7
Horizon Bank's position that a circuit court must
determine the amount of a credit to be applied to a judgment on
a guaranty during a hearing to confirm a foreclosure sale raises
significant due process concerns. There is no statutory
requirement that a guarantor receive notice of the confirmation
hearing. Wisconsin Stat. § 846.165(1) requires notice "to all
parties that have appeared in the action." Because a mortgagee
can pursue foreclosure without ever joining the guarantor, the
guarantor may never appear in the action and consequently may
not receive notice of the hearing. Without statutorily-required
notice, guarantors can be deprived of the ability to challenge
the fair value of the property and thus be saddled with a credit
amount they did not have the opportunity to contest.

14
 No. 2016AP832

determination of 'fair value' identifies whether the price

shocks the conscience of the court." Id.

¶39 In contrast, the amount of a credit to be due on a

guaranty is strictly a matter of contract. "A guarantor's

liability depends upon the particular terms of his or her

engagement." Crown Life Ins. Co. v. LaBonte, 111 Wis. 2d 26,

32, 330 N.W.2d 201 (1983) (citing Continental Bank & Trust Co.

v. Akwa, 58 Wis. 2d 376, 388, 206 N.W.2d 174 (1973)).

¶40 Further reflecting that fair value in the context of

Wis. Stat. § 846.165 and the credit due on a guaranty are

separate issues, the amount of a credit to be applied to a

guaranty may be litigated in an action wholly apart from the

fair value contemplated by § 846.165.

¶41 The procedure followed in Crown Life, 111 Wis. 2d 26,

is instructive here. Crown Life involved an action to collect

on a contractual guaranty of a note after the mortgage that

secured the debt had proceeded through foreclosure and sale and

the lender had not received full payment. Id. at 30-31.
¶42 Although Musikantow, unlike the guarantor in Crown

Life, was a party to the foreclosure action here, Crown Life

demonstrates that the debt due under the mortgage and under the

guaranty may properly follow separate tracks. See id. The two

determinations need not even be part of the same action, and

thus need not be made at the same time.

¶43 Our conclusion is consistent with Crown Life and with

the equitable nature of foreclosure proceedings. As Crown Life
illustrates, a foreclosure action against a mortgagor and a
15
 No. 2016AP832

related action for money judgment on a guaranty can proceed

together or separately. If a lender chooses to bring the two

actions together, as was the case here, the circuit court has

discretion in deciding how to most fairly determine the separate

issues of (1) fair value for purposes of confirming the sale and

(2) the credit to be applied to the judgment against the

guarantor. The circuit court has the discretion to decide these

issues at the same time or separately.

¶44 "Foreclosure proceedings are equitable in nature, and

the circuit court has the equitable authority to exercise

discretion throughout the proceedings." Walworth State Bank v.

Abbey Springs Condominium Ass'n, Inc., 2016 WI 30, ¶24, 368

Wis. 2d 72, 878 N.W.2d 170 (quoting GMAC Mortg. Corp., 215

Wis. 2d 459, ¶37). In the circuit court's discretion, it could

be fair to speedily confirm the sale when there will be no

deficiency judgment against the mortgagor, while leaving the

determination of the credit toward the guaranty for another day.8

¶45 As Musikantow suggested at oral argument, specific
characteristics of the subject property, in addition to other

concerns, may play a role in a circuit court's determination of

what is equitable under the circumstances. Because the circuit

court could properly decouple the guaranty and foreclosure sale

8
Admittedly, an action based on a guaranty is a matter of
contract and not equity. Nevertheless, because the actions were
brought together, the exercise of the circuit court's equitable
powers in the foreclosure proceeding can affect the action on
the guaranty.

16
 No. 2016AP832

proceedings, its decision to do so was not an error of fact or

law and thus its exercise of discretion was not erroneous.9

¶46 We therefore conclude that when an action for

foreclosure against a mortgagor and an action for a money

judgment on a guaranty are brought in the same proceeding as in

this case, the circuit court may, in its discretion, decide the

separate questions of fair value for purposes of Wis. Stat.

§ 846.165 and the amount of any credit toward the judgment on

the guaranty either at the same time or separately.

C

¶47 Having determined that Wis. Stat. § 846.165 does not

apply and that the circuit court was within its discretion to

allow the case to proceed on two separate tracks, we examine

next the interpretation of the stipulation between the parties.

The central question is whether the stipulation requires the

$2,250,000 credit to be applied as the sole credit toward the

guaranty.

¶48 All parties to this case entered into a stipulation,
which the circuit court formalized through the issuance of an

order. At issue here is paragraph 11 of the stipulation, which

states:

9
Although the circuit court's belief that the Florida court
would decide the amount of the credit was ultimately incorrect,
the circuit court was within its discretion to leave open the
possibility of later deciding the amount of the credit itself.
As explained above, such a decoupling of the confirmation of
sale and the credit determination is within the circuit court's
discretion.

17
 No. 2016AP832

The amount paid to [Horizon Bank] from the proceeds of
said sale of the Premises, remaining after deduction
by [Horizon Bank] of the amount of interest, fees,
costs, expenses, disbursements and other charges paid
or incurred by [Horizon Bank] not included in the
monetary judgment against [Musikantow] (set forth
below) shall be credited by [Horizon Bank] as payment
on said monetary judgment.
¶49 The court of appeals found paragraph 11 of the

stipulation to be clear and dispositive. In concluding that the

stipulation controls the amount of the credit to be applied

toward the judgment against Musikantow, the court of appeals

stated:

Musikantow conceded in the circuit court that the bid
price of $2,250,000 represented the fair value of the
subject property, and he does not argue otherwise on
appeal. The circuit court expressly found that the
bid represented the property's fair value, and it
therefore confirmed the sheriff's sale. Upon
confirmation of sale, title to the property was
transferred to Horizon Bank, and the bank therefore
received 'proceeds of said sale' worth $2,250,000.
Accordingly, based on the parties' stipulation and the
judgment entered according to its terms, the court
should have applied a $2,250,000 credit toward the
judgment against Musikantow.
Horizon Bank, Nat'l Ass'n, No. 2016AP832, unpublished slip op.,

¶23.

¶50 The court of appeals misinterpreted the exclusive and

determinative nature of the stipulation. Although the

stipulation mandates that the amount of the winning bid at the

sheriff's sale be credited on the judgment against Musikantow,

it does not state that it must be the exclusive credit to be

granted toward the judgment.

18
 No. 2016AP832

¶51 Contract interpretation generally seeks to give effect

to the intentions of the parties. Tufail v. Midwest Hosp., LLC,

2013 WI 62, ¶25, 348 Wis. 2d 631, 833 N.W.2d 586 (citing

Seitzinger v. Cmty. Health Network, 2004 WI 28, ¶22, 270

Wis. 2d 1, 676 N.W.2d 426). However, subjective intent is not

the be-all and end-all of contract interpretation. Id., ¶25

(citing Kernz v. J.L. French Corp., 2003 WI App 140, ¶9, 266

Wis. 2d 124, 667 N.W.2d 751). Rather, unambiguous contract

language controls the interpretation of contracts. Id. This

court construes contracts as they are written. Id., ¶29.

¶52 The court of appeals implicitly concluded that the

language in paragraph 11 of the stipulation was unambiguous. It

determined that the stipulation provides for the "proceeds of

the sale," and only the "proceeds of the sale," to be applied as

a credit toward the judgment against the guarantor. See Horizon

Bank, Nat'l Ass'n, No. 2016AP832, unpublished slip op., ¶24

("the parties' stipulation requires a $2,250,000 credit toward

the money judgment") (emphasis added).
¶53 Upon our independent review of the stipulation, we

find it ambiguous as to the amount of the total credit. The

operative portion of the stipulation provides that the proceeds

of the sheriff's sale "shall be credited by [Horizon Bank] as

payment on said monetary judgment" against Musikantow. It does

19
 No. 2016AP832

not say that the proceeds of the sheriff's sale shall be the

sole credit toward the judgment against Musikantow.10

¶54 The stipulation prescribes what must be done, but it

does not describe that the amount is the totality of the credit.

Hence, the stipulation provides a "floor" for the amount of the

credit, but not a "ceiling."11

¶55 Additionally, we observe that Musikantow declined to

present evidence as to the value of the property with the

expectation that he would be able to later contest the amount of

the credit. The record undermines the court of appeals'

10
The dissent's concern about dire consequences occasioned
by the majority opinion misses an essential point. See dissent,
¶¶91 n.9, 92. It ignores that our conclusion is based on the
interpretation of the particular stipulation at issue here.
Contrary to the dissent's assertion, our determination does not
upset the parties' reasonable expectations. Conversely, our
decision should serve to drive banks and guarantors to write
clearer stipulations that unambiguously reflect their intentions
if they truly intend to resolve the full credit amount by
stipulation.
11
Contrary to the suggestion of the dissent, McFarland
State Bank v. Sherry, 2012 WI App 4, 338 Wis. 2d 462, 809
N.W.2d 58, does not control the interpretation of the
stipulation. First, the McFarland State Bank court did not
interpret contract language like that at issue here. Second,
the lender in McFarland State Bank argued that the guarantor
should receive a credit less than the fair value amount
determined at the confirmation of sale. Id., ¶¶29-30.

The court of appeals rejected this argument, but did not
conclude that a guarantor's credit must always be equal to the
circuit court's fair value determination at the confirmation of
sale. This is entirely consistent with our determination that
the stipulation language in this case constitutes a "floor" but
not a "ceiling" for the credit amount.

20
 No. 2016AP832

conclusion that Musikantow conceded the amount of the credit.

As set forth above, Musikantow requested several times that his

credit not be bound by the amount of the winning bid at the

sheriff's sale. Although he may have conceded the fair value

for purposes of confirmation of sale, he did not concede the

amount of the credit. As analyzed above, these are two separate

questions.

¶56 Accordingly, we determine that the stipulation in this

case does not establish that the amount of the winning bid at

the sheriff's sale shall be the sole credit toward the money

judgment against Musikantow.

IV

¶57 In sum, we conclude that Wis. Stat. § 846.165 does not

apply to credits toward a judgment on a guaranty. Rather, it

applies to the relationship between only the mortgagee and

mortgagor who signed the promissory note underlying the

mortgage. Therefore, it cannot be read as requiring the circuit

court to determine the amount of a credit to be applied to a
judgment on a guaranty when confirming the foreclosure sale.

¶58 We further conclude that when an action for

foreclosure against a mortgagor and an action for a money

judgment on a guaranty are brought in the same proceeding as in

the instant case, the circuit court may, in its discretion,

decide the separate questions of fair value for purposes of Wis.

Stat. § 846.165 and the amount of any credit toward the judgment

on the guaranty either at the same time or separately.

21
 No. 2016AP832

Accordingly, the circuit court did not erroneously exercise its

discretion in decoupling these questions.

¶59 Finally, we determine that the stipulation in this

case does not establish that the amount of the winning bid at

the sheriff's sale shall be the sole credit toward the money

judgment against Musikantow.

¶60 Accordingly, we reverse the decision of the court of

appeals and remand to the circuit court for a determination of

the amount of the credit to be applied toward the judgment

against Musikantow as guarantor.

By the Court.—The decision of the court of appeals is

reversed, and the cause remanded to the circuit court.

22
 No. 2016AP832.rgb

¶61 REBECCA GRASSL BRADLEY, J. (dissenting). The court

of appeals correctly held that the unambiguous Stipulation for

Judgment and Order for Judgment and Judgment of Foreclosure and

Sale and Monetary Judgment signed by Alan S. Musikantow,

Marshalls Point Retreat LLC, and Horizon Bank and entered by the

circuit court on September 10, 2015 ("Stipulation and Order")

should be enforced. Under the Stipulation and Order, the

parties agreed that Musikantow would be credited toward the

judgment entered against him in the amount for which the

property sold at the sheriff's sale. The majority declines to

enforce the parties' agreement and instead decides the

Stipulation and Order does not mean what it says.

¶62 Rather, the majority holds: (1) the Stipulation and

Order contemplated only part of the credit to be applied, and

(2) a circuit court presiding over a combined action for

foreclosure against the mortgagor and for monetary judgment

against the guarantor has the discretion to confirm the

sheriff's sale without determining the guarantor's credit
arising from the sale. The majority's holding ignores the fact

that the Stipulation and Order——by its plain terms——resolves the

entire proceeding against both Musikantow and Marshalls Point

and requires the issues of "fair value" and the guarantor's

credit to be resolved concurrently. The majority rewrites the

parties' stipulated agreement, disregards its plain terms, and

deprives one party of the benefit of the terms for which it

bargained. Accordingly, I cannot join the majority's opinion.

1
 No. 2016AP832.rgb

I. BACKGROUND

A. The Facts

¶63 Marshalls Point borrowed $5 million from Horizon Bank

under a Promissory Note secured by mortgaging lakefront property

in Sister Bay. Musikantow individually signed a Commercial

Guaranty for payment and performance on the note executed by

Marshalls Point, of which he was the sole member. After

Marshalls Point defaulted, Horizon Bank initiated foreclosure

proceedings in Door County Circuit Court, seeking foreclosure

and sale of the property and demanding a monetary judgment

against Musikantow pursuant to the terms of his guaranty for

$4,043,555.55. The parties stipulated to entry of judgment on

September 10, 2015. The Stipulation and Order provided that

Horizon Bank was owed $4,043,555.55, which was entered as the

amount of the judgment against Musikantow; the premises were to

be sold "at a fair and adequate price"; and the amount paid to

Horizon Bank from the proceeds of the sale "shall be credited"

toward the monetary judgment against Musikantow.
B. The Stipulation and Order

¶64 The Stipulation and Order is a single 10-page

document with the parties' stipulation set forth on pages 1 to

the top of 4 and the circuit court's Order for Judgment and

Judgment set forth on pages 4 through 10.1 Paragraph (b) of the

Stipulation and Order provides that Marshalls Point and

1
The Stipulation signed by the parties is arranged in
lettered paragraphs, while the Order for Judgment signed by the
circuit court is arranged in numbered paragraphs.

2
 No. 2016AP832.rgb

Musikantow "each consent and agree to the Order for Judgment and

Judgment of Foreclosure and Sale and Monetary Judgment . . . and

stipulate and agree that said Order for Judgment and Judgment of

Foreclosure and Sale and Monetary Judgment . . . be immediately

entered . . . ." The first paragraph of the Order for Judgment

provides that "there are no issues of law or fact which have

been joined which would preclude judgment for the Plaintiff in

the form set forth below . . . ."

¶65 The Stipulation and Order provides the details of how

the parties would resolve Horizon Bank's claims against both

Marshalls Point and Musikantow. Pursuant to paragraph (c) of

the Stipulation and Order, the property would be sold under Wis.

Stats. ch. 846 at a sheriff's sale. Paragraph 8 of the

Stipulation and Order requires "the Premises [] to be sold at a

fair and adequate price . . . ." Paragraph 10 of the

Stipulation and Order provides that Horizon Bank, having chosen

to proceed under Wis. Stat. § 846.103, waived rights to a

deficiency judgment against Marshalls Point.2 Paragraph (d) of

2
Wisconsin Stat. § 846.103(1) provides for a redemption
period prior to a foreclosure sale. Section 846.103(2) provides
for a reduced redemption period when a plaintiff in a
foreclosure action "elect[s] by express allegation in the
complaint to waive judgment for any deficiency which may remain
due to the plaintiff after sale of the mortgaged premises
against every party who is personally liable for the debt
secured by the mortgage . . . ." A plaintiff that waives a
deficiency judgment does not "forfeit the right to obtain a
judgment against a guarantor of payment" because "guarantors are
not parties 'personally liable for the debt secured by the
mortgage.'" Bank Mut. v. S.J. Boyer Const., Inc., 2010 WI 74,
¶77, 326 Wis. 2d 521, 785 N.W.2d 462.

3
 No. 2016AP832.rgb

the Stipulation and Order reserved to Horizon Bank "the right to

a monetary judgment against the guarantor-defendant ALLEN S.

MUSIKANTOW (as provided for in the Judgment), which right shall

not be limited or impaired in any way by this Stipulation."

¶66 Paramount to the issue before this court, the

Stipulation and Order describes in paragraph 11 the only credit

Musikantow could receive from the sale of the premises:

The amount paid to [Horizon Bank] from the proceeds of
said sale of the Premises, remaining after deduction
by [Horizon Bank] of the amount of interest, fees,
costs, expenses, disbursements and other charges paid
or incurred by [Horizon Bank] not included in the
monetary judgment against [Musikantow] . . . shall be
credited by [Horizon Bank] as payment on said monetary
judgment.
(Emphasis added.)

¶67 In paragraph (f) of the Stipulation and Order,

Musikantow and Marshalls Point "reserve all rights, objections

and defenses available to them under Section 846.165 of the

Wisconsin Statutes or other applicable law in the event [Horizon

Bank] applies to the Court for confirmation of a foreclosure

sale of the Premises pursuant to the Judgment."3 Under that

3
Wisconsin Stat. § 846.165 provides the means by which the
parties to a foreclosure action can apply for confirmation of
sale and a deficiency judgment. Subsection (1) entitles parties
appearing in the action to prior notice of confirmation of sale
proceedings. Subsection (2) provides:

In case the mortgaged premises sell for less than the
amount due and to become due on the mortgage debt and
costs of sale, there shall be no presumption that such
premises sold for their fair value and no sale shall
be confirmed and judgment for deficiency rendered,
until the court is satisfied that the fair value of
(continued)
4
 No. 2016AP832.rgb

statute, if the sale price is less than the amount due on the

mortgage debt, the circuit court may not presume the premises

sold for fair value; rather, the circuit court instead must be

satisfied that the fair value of the premises is credited on the

mortgage debt before confirming the sale. This procedure

provides interested parties the opportunity to offer evidence in

support of whatever amounts they contend reflect the fair value

of the property——before the court confirms the sale. This is

the right Musikantow preserved under paragraph (f) of the

Stipulation and Order.

the premises sold has been credited on the mortgage
debt, interest and costs.

Fair value is not the same as fair market value, but rather
is "a value determined by the property's sale value." Bank of
New York v. Mills, 2004 WI App 60, ¶10, 270 Wis. 2d 790, 678
N.W.2d 332 (citing First Fin. Sav. Ass'n v. Spranger, 156
Wis. 2d 440, 444, 456 N.W.2d 897 (1990)). In the context of a
sheriff's sale, the circuit court will confirm the sale and
accept the winning bid as the fair value so long as that price
is of "such reasonable value as does not shock the conscience of
the court." First Wis. Nat'l Bank of Oshkosh v. KSW Invs.,
Inc., 71 Wis. 2d 359, 367, 238 N.W.2d 123 (1976) (citation
omitted). "[M]ere inadequacy of price is not usually sufficient
grounds of itself for vacating a judicial sale . . . unless the
inadequacy is so gross as to shock the conscience and raise a
presumption of fraud, unfairness, or mistake." Gumz v.
Chickering, 19 Wis. 2d 625, 635, 121 N.W.2d 279, 284 (1963)
(citing Anthony Grignano Co. v. Gooch, 259 Wis. 138, 47 N.W.2d
895 (1951). Where the mortgagee waives any deficiency judgment
against the mortgagor, such waiver creates a presumption that
the court's fair value determination is correct. Bank of New
York, 270 Wis. 2d 790, ¶15. Regardless of whether the
presumption of correctness arises or not, "[t]he statute does
not eliminate the requirement that the court find 'fair value.'"
Id.

5
 No. 2016AP832.rgb

C. The Circuit Court's Errors

¶68 After successfully submitting a credit bid4 on the

property for $2,250,000, Horizon Bank subsequently moved to

confirm the sale, according to Wis. Stat. § 846.165(2) and

paragraph (f) of the Stipulation and Order, asserting that the

bid represented the fair value of the property. Horizon Bank

also stated, in conformance with paragraphs 8 and 10 of the

Stipulation and Order, that it would not seek a deficiency

judgment against Marshalls Point and asked the circuit court to

apply the amount of Horizon Bank's credit bid as the credit on

the $4,043,555.55 monetary judgment owed by Musikantow.

¶69 Musikantow and Marshalls Point did not object that

Horizon Bank's credit bid of $2,250,000 could constitute fair

value, but they requested the order confirming sale include

language that the sale price have no collateral estoppel or res

judicata effect on Musikantow. If the order did not contain

this language, Marshalls Point and Musikantow objected to that

amount being credited upon the judgment against Musikantow.
¶70 The circuit court held a hearing to confirm the

sheriff's sale on December 2, 2015. At that time, Marshalls

Point and Musikantow disclosed a witness who was prepared to

testify that the property had a market value exceeding

4
When a lender bids on property at a sheriff's sale, the
amount it successfully bids is the price "paid" for the property
because it is required to offset the amount bid against the
amount owed by the mortgagor or, as in this case where the
deficiency is waived, against the guarantor. McFarland State
Bank v. Sherry, 2012 WI App 4, ¶5 n.1, 338 Wis. 2d 462, 809
N.W.2d 58.

6
 No. 2016AP832.rgb

$10,000,000. The court adjourned the hearing until December 22,

2015, in order to hear this evidence.

¶71 At the December 22nd hearing, Marshalls Point and

Musikantow changed the position they took at the December 2nd

hearing and asserted for the first time that the circuit court

need not make an evidentiary finding regarding the property's

value as to the guarantor because the guaranty contained a

governing law provision providing that the guaranty is governed

by "federal law applicable to the Lender and, to the extent not

preempted by federal law, the laws of the State of Indiana

without regard to its conflicts of law provisions." Marshalls

Point and Musikantow informed the circuit court that Horizon

Bank had already commenced an action in the Middle District of

Florida, where Musikantow resided, to enforce the monetary

judgment. Marshalls Point and Musikantow asked the circuit

court to decline to set the amount to be credited against the

monetary judgment and let the federal court in Florida do so.

¶72 Horizon Bank objected many times over, explaining that
the federal action was solely a "domestication of the monetary

judgment that this Court has already entered on the guarantee in

these proceedings." Therefore, it was necessary for the circuit

court to decide the amount to be credited on Musikantow's

monetary judgment. In addition, Horizon Bank asserted that if

Musikantow wanted to raise an issue of law that would absolve

him of his liability as guarantor, he should have raised it

before the monetary judgment was entered. Horizon Bank also
observed that there was no issue of personal or subject matter

7
 No. 2016AP832.rgb

jurisdiction that would bar the circuit court in Wisconsin from

determining the credit amount to be applied toward the monetary

judgment against Musikantow.

¶73 The circuit court granted Musikantow's oral motion and

declined to determine the credit to be applied to the judgment

against him, believing that it was "dealing with a pretty set

principle that federal law always trumps state law," but

ultimately and erroneously deciding that "the guarantee is to be

governed by federal law," completely disregarding the

Stipulation and Order. The circuit court granted Horizon Bank's

motion for confirmation of the sheriff's sale, finding the

credit bid of $2,250,000 "represents the fair and reasonable

value for the property and based upon the stipulation of

judgment of foreclosure" was to be applied to the total

indebtedness due on the mortgage debt.

¶74 Subsequently, the circuit court entered two orders

memorializing the oral rulings from the December 22nd hearing.

In the "Order Confirming Sheriff's Sale," the circuit court
confirmed the sale of the property to Horizon Bank, finding

"that the amount bid by Horizon Bank, National Association for

the purchase of the mortgaged premises represents the fair value

of said premises . . . ." The circuit court crossed out the

final paragraph of the order, which stated:

After application to the Judgment indebtedness of the
amount bid at sheriff's sale of $2,250,000, there
remains due under the Judgment entered against Allen
S. Musikantow the sum of $1,869,460.70, as of November
4, 2015 together with subsequently accruing interest,
fees and costs.

8
 No. 2016AP832.rgb

¶75 In its second order, entered on January 22, 2016, the

circuit court "grant[ed] the motion of Allen S. Musikantow to

decline to make a finding of the amount to be credited against

the judgment of Horizon Bank, National Association against

[Musikantow] as guarantor" "in light of the language in the

Guaranty document indicating that it is to be governed by

Federal Law." The court ordered that it "will, if required by a

Federal Court, make a determination as to such amount to be

credited against the judgment of Horizon Bank, National

Association against [Musikantow]." Horizon Bank appealed.

¶76 The court of appeals reversed the circuit court's

decision and remanded with instructions to credit Musikantow

$2,250,000, the amount of the winning bid at the sheriff's sale.

Horizon Bank, Nat'l Ass'n v. Marshalls Point Retreat LLC, No.

2016AP832, unpublished slip op., ¶2 (Wis. Ct. App. Jan. 24,

2017) (per curiam). The court of appeals concluded the circuit

court misinterpreted the governing law provision, which simply

indicates which jurisdiction's substantive law governs the
guaranty, but does not restrict the court's subject matter or

personal jurisdiction over the case. Id., ¶20. It held the

circuit court erred by refusing to determine the amount of

credit because there was no reason why the circuit court could

not apply whatever law was appropriate and determine the correct

credit to apply toward the judgment against Musikantow. Id.

¶77 The court of appeals then determined, as agreed by all

of the parties under the Stipulation and Order, that $2,250,000
should be applied as the credit toward the monetary judgment

9
 No. 2016AP832.rgb

against Musikantow. Id., ¶21. It concluded "[t]he only

reasonable interpretation of the phrase 'the amount paid to

Horizon Bank from the proceeds of said sale of the Premises' is

that it refers to the amount of the winning bid at the sheriff's

sale." Id., ¶22. Musikantow conceded in the circuit court that

this amount represented fair value and accordingly should be

credited to the monetary judgment against Musikantow. Id., ¶23.

While the court of appeals recognized that the governing law

clause in Musikantow's guaranty provided for "federal law and,

to the extent not preempted by federal law, . . . Indiana law,"

it noted that Musikantow failed to cite any law contrary to the

Stipulation and Order's requirement to credit him $2,250,000 and

no other amount. Id., ¶24.

¶78 Musikantow moved for reconsideration, arguing that he

was prepared to challenge the fair value of the property, but

did not present the evidence because the circuit court agreed

that the amount of his credit would not be tied to the fair

value finding. The court of appeals denied the motion for
reconsideration. This court granted Musikantow's petition for

review.

II. STANDARD OF REVIEW

¶79 The majority's primary error arises from its

misapplication of the erroneous exercise of discretion standard.

The court was tasked with addressing whether the circuit court

erroneously exercised its discretion when it decoupled the

determination of the credit to be applied to the guarantor's
obligation from the underlying mortgage foreclosure action

10
 No. 2016AP832.rgb

against the debtor, in spite of the Stipulation and Order

resolving the claims against both. This court will uphold a

circuit court's exercise of discretion if the circuit court

"exercised its discretion in accordance with accepted legal

standards and in accordance with the facts of record." State v.

Wollman, 86 Wis. 2d 459, 464, 273 N.W.2d 225 (1979) (citation

omitted). "If there was a reasonable basis for the court's

determination, then we will not find an erroneous exercise of

discretion." State v. Hammer, 2000 WI 92, ¶21, 236 Wis. 2d 686,

613 N.W.2d 629 (citation omitted). I conclude the circuit court

erroneously exercised its discretion by not following the

parties' stipulation or its own order.

¶80 The majority's secondary error arises from its failure

to properly set forth and apply the law regarding the

interpretation of stipulations. See majority op., ¶¶52-54.

This court comprehensively explained the standards for

construing stipulations in Stone v. Acuity, 2008 WI 30, ¶67, 308

Wis. 2d 558, 747 N.W.2d 149. We review the interpretation of a
stipulation de novo. Id., ¶21. The "interpretation of a

stipulation must, above all, give effect to the intention of the

parties." Id., ¶67 (quoting Pierce v. Physicians Ins. Co. of

Wis., Inc., 2005 WI 14, ¶31, 278 Wis. 2d 82, 692 N.W.2d 558). To

determine the parties' intent, the stipulation's terms "should

be given their plain or ordinary meaning." Id. (quoting Huml v.

Vlazny, 2006 WI 87, ¶52, 293 Wis. 2d 169, 716 N.W.2d 807).

"While relief from stipulations is governed by Wis. Stat.
§ 806.07, principles of contract law apply in interpreting

11
 No. 2016AP832.rgb

stipulations." Id. (citing Kocinski v. Home Ins. Co., 154

Wis. 2d 56, 67-68, 452 N.W.2d 360 (1990)). "If the agreement is

not ambiguous, ascertaining the parties' intent 'ends with the

four corners of the contract, without consideration of extrinsic

evidence.'" Id. (quoting Huml, 293 Wis. 2d 169, ¶52). Terms of

a stipulation are ambiguous if "reasonably or fairly susceptible

to more than one construction." Id., ¶86 (Roggensack, J.,

concurring in part, dissenting in part) (quoting Flejter v.

Estate of Flejter, 2001 WI App 26, ¶28, 240 Wis. 2d 401, 623

N.W.2d 552).

¶81 The fact that a stipulation "appears by hindsight to

have been a bad bargain is not sufficient by itself to warrant

relief." Pasternak v. Pasternak, 14 Wis. 2d 38, 46, 109

N.W.2d 511 (1961). Rather, a court will decline to enforce an

unambiguous stipulation only in two instances: (1) where it was

not "formalized in the way required by sec. 807.05," Kocinski,

154 Wis. 2d at 67 (citation omitted); or (2) "in a plain case of

fraud, mistake, or oppression," Illinois Steel Co. v. Warras,
141 Wis. 119, 125, 123 N.W. 656 (1909); see also Burmeister v.

Vondrachek, 86 Wis. 2d 650, 664, 273 N.W.2d 242 (1979) (first

citing Wis. Stat. § 806.07(1) (1978-79); then citing Pasternak,

14 Wis. 2d at 38; then citing State ex rel. S. Colonization Co.

v. Cir. Ct. of St. Croix County, 187 Wis. 1, 203 N.W. 923

(1925)). Neither party asserts the Stipulation and Order

suffers from either infirmity, and because the Stipulation and

Order is not ambiguous, the circuit court was required to
enforce it. Its failure to do so was erroneous.

12
 No. 2016AP832.rgb

III. ANALYSIS

A. The Circuit Court Erroneously Exercised its Discretion by
Failing to Apply the Stipulation and Order.
¶82 The Stipulation and Order effectuated a global

resolution of Horizon Bank's foreclosure and monetary judgment

claims against Marshalls Point and Musikantow, respectively. A

plain-meaning interpretation of the Stipulation and Order

required the circuit court to apply the credit toward the

monetary judgment against Musikantow in an amount equal to the

proceeds of the sale of the property, unless Musikantow

successfully argued the sale price did not accurately reflect

fair value. Here, the proceeds were in the form of Horizon

Bank's credit bid. The circuit court should have flatly

rejected Musikantow's last hour5 choice of law argument because

the Stipulation and Order, executed in Wisconsin, nullified the

guaranty's choice of law provision. The majority errs in

concluding that the circuit court's decision to "decouple" the

guaranty and foreclosure sale proceedings "was not an error of

fact or law and thus its exercise of discretion was not

erroneous." Majority op., ¶45.

¶83 By sanctioning the circuit court's actions, the

majority overlooks the two false premises underlying the circuit

court's decision: First, the circuit court inexplicably

imported the governing law provision from the guaranty into the

5
At no point, until the December 22nd confirmation of sale
hearing, did any party dispute either the application of
Wisconsin law or venue.

13
 No. 2016AP832.rgb

Stipulation and Order.6 The circuit court failed to recognize

that the terms and conditions of the guaranty no longer applied

once the parties entered into the Stipulation and Order to

resolve their dispute. Second, the federal court in which

Horizon Bank filed the domestication action lacked any power

whatsoever to determine fair value, and could only enforce the

judgment against Musikantow.

¶84 As noted by the court of appeals, there was both a

forum selection clause in the guaranty providing that litigation

was to be venued in LaPorte County, Indiana, and a governing law

provision providing that federal law or, unless preempted,

Indiana law applied to the interpretation of the guaranty.

Despite these provisions, Horizon Bank filed its complaint in

Wisconsin and Musikantow raised no objection until after the

Stipulation and Order was executed by the parties and entered by

the court. Thus, the circuit court had jurisdiction over the

entire proceeding by virtue of the parties stipulating to

6
A governing law provision permits parties to "expressly
agree that the law of a particular jurisdiction shall control
their contractual relations." Bush v. Nat'l Sch. Studios, Inc.,
139 Wis. 2d 635, 642, 407 N.W.2d 883 (1987); see also Choice-of-
law clause, Black's Law Dictionary (10th ed. 2014) ("A
contractual provision by which the parties designate the
jurisdiction whose law will govern any disputes that may arise
between the parties."). By contrast, a forum selection or
choice of venue clause permits parties to choose the forum in
which to litigate their claims. See Beilfuss v. Huffy Corp.,
2004 WI App 118, ¶¶7-8, 274 Wis. 2d 500, 685 N.W.2d 373; see
also Forum-selection clause, Black's Law Dictionary (10th ed.
2014) ("A contractual provision in which the parties establish
the place (such as the country, state, or type of court) for
specified litigation between them.").

14
 No. 2016AP832.rgb

settlement of the matter in Wisconsin Circuit Court. When the

parties reached a stipulated settlement, there was no reason to

interpret the guaranty any longer, so the choice of law

provision became irrelevant. Unless Musikantow established that

the Stipulation and Order was entered into under fraud, mistake,

or oppression, he was not entitled to relief from it. See supra

¶21 (first citing Illinois Steel Co., 141 Wis. at 125; then

citing Burmeister, 86 Wis. 2d at 664). The Stipulation and

Order superseded the guaranty not only on the issues of choice

of law and venue but in its entirety, and the Stipulation and

Order constituted the parties' exclusive agreement on the terms

governing application of any credit toward the monetary judgment

against Musikantow.

¶85 As to the circuit court's second false premise, it

failed to comprehend the purpose of the domestication action in

the United States Court for the Middle District of Florida.

That proceeding was commenced solely to enforce the judgment

entered by the Wisconsin Circuit Court against Musikantow. The
action was filed in Florida federal district court on the basis

of diversity of citizenship. The Florida district court lacked

jurisdiction to resolve the credit issue; its singular power in

the domestication action was to make enforceable in Florida the

monetary judgment entered in Wisconsin. See Trauger v. A.J.

Spagnol Lumber Co., 442 So. 2d 182, 183 (Fla. 1983) ("An action

to recover on a foreign judgment is completely independent from

the original cause of action. It is the judgment from the other
state which forms the basis for the cause of action, and the

15
 No. 2016AP832.rgb

validity of the claim on which the foreign judgment was entered

is not open to inquiry.").7

¶86 These are basic principles of contract and civil

procedure law. The circuit court's failure to recognize and

apply them was clearly erroneous. It is unclear whether

Musikantow's arguments on these matters arose from trial

counsel's strategy or mistake. Regardless, his arguments

inducing the circuit court to decline to determine Musikantow's

credit cannot now give his client the opportunity to recontest

fair value. Musikantow contends that denying him another chance

to litigate the fair value of the property would offend

procedural due process. However, procedural due process simply

requires notice and an opportunity to be heard. Sweet v. Berge,

113 Wis. 2d 61, 64, 334 N.W.2d 559 (Ct. App. 1983) (citation

omitted). Here, Musikantow had both.

¶87 Musikantow explicitly reserved rights to litigate fair

value prior to confirmation of the sheriff's sale under Wis.

Stat. § 846.165, per paragraph (f) of the Stipulation and Order.
Paragraph 8 of the Stipulation and Order required the premises

"to be sold at a fair and adequate price." In the Order

Confirming Sheriff's Sale, the circuit court found "that the

7
See also Stefan A. Riesenfeld, Creditors' Remedies and the
Conflict of Laws——Part One: Individual Collection of Claims, 60
Colum. L. Rev. 659, 681 n.12 (1960) ("The term 'domesticated
foreign judgment' is employed to designate out-of-state
judgments that by some step short of an action on the foreign
judgment resulting in a domestic judgment have become
assimilated to domestic judgments for purposes of
enforcement.").

16
 No. 2016AP832.rgb

amount bid by Horizon Bank, National Association for the

purchase of the mortgaged premises represents the fair value of

said premises." If Musikantow disagreed, he should have

contested this before the circuit court instead of just talking

about doing so. His failure to present testimony or any

evidence on fair value in any respect constitutes a waiver of

the rights he reserved under the Stipulation and Order. See

Brunton v. Nuvell Credit Corp., 2010 WI 50, ¶35, 325

Wis. 2d 135, 785 N.W.2d 302 ("waiver is the intentional

relinquishment or abandonment of a known right" (quoting State

v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612)).

By declining to apply any credit to the monetary judgment

against Musikantow based on Musikantow's argument that this

determination needed to be made in federal court, the circuit

court failed to correctly apply the law, the parties' agreement,

and its own order.

¶88 Ignoring the fact that the Stipulation and Order

resolved all of the parties' claims and defenses, the majority
extends the circuit court's error by permitting the proceedings

against the guarantor and mortgagor to be decoupled: "Further

reflecting that fair value in the context of Wis. Stat.

§ 846.165 and the credit due on a guaranty are separate issues,

the amount of a credit to be applied to a guaranty may be

litigated in an action wholly apart from the fair value

contemplated by §846.165." Majority op., ¶40. All of this is

true, as a general proposition. In so holding in this case,
however, the majority rewrites the terms of the Stipulation and

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Order by excising the stipulated terms and conditions governing

the calculation of the monetary judgment against Musikantow.

The majority also misconstrues McFarland State Bank v. Sherry,

2012 WI App 4, 338 Wis. 2d 462, 809 N.W.2d 58, a case wholly

consistent with the terms of the Stipulation and Order and also

instructive on the issue of decoupling mortgage foreclosure and

guaranty proceedings generally.

¶89 In McFarland, a bank successfully submitted a credit

bid and acquired the mortgaged property at a sheriff's sale.

Id., ¶1. A monetary judgment was entered against the guarantor

for the remaining balance on the loan. Id. In the order

confirming the sale, the circuit court found the property had a

fair value of $147,000. Id., ¶5. The guarantor argued he was

entitled to an offset against the monetary judgment in that

amount. Id., ¶12. Among the bank's arguments, it cited Crown

Life Ins. Co. v. LaBonte,8 for the proposition that the fair

value finding should not fix the amount of the offset; instead,

"the circuit court could find a different value of the property,
perhaps relying on additional evidence, for purposes of

determining what [the guarantor's] offset should be." Id., ¶29.

The court of appeals rejected this argument, instead requiring

that the confirmed sale price be applied as the credit to the

guarantor. Id., ¶31. It held that Crown Life did not "stand[]

for the proposition" that a guarantor could be credited in an

amount different from the fair value finding because "the trial

8
111 Wis. 2d 26, 32, 330 N.W.2d 201 (1983).

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court's use of that approach was not at issue before the supreme

court." Id., ¶29-30. Moreover, the holding in Crown Life was

inapplicable in McFarland because "the guarantor in Crown Life,

unlike [the guarantor in McFarland], was not a party to the

foreclosure proceedings." Id., ¶30. As a result, the guarantor

in Crown Life, unlike the guarantor in McFarland——or Musikantow

in this case——did not have the same opportunity to contest a

fair value finding tied to the amount of the credit bid.

¶90 Under McFarland, where the guarantor is a party to the

mortgage foreclosure proceedings, "it does not make sense" to

"calculate[] a guarantor's liability based on a property value

different than the price for which the property originally sold

at a sheriff's sale." Id., ¶30. In this context, the fair

value determination applies against both the guarantor and the

mortgagor. No issues with due process arise because the

guarantor is a party to the proceeding and can also litigate

fair value alongside the mortgagor. While McFarland does not

control the disposition of this case——the Stipulation and Order
does——it is not a leap of logic to infer that parties

negotiating settlement agreements under comparable facts rely on

pertinent case law in crafting them. Here, the procedure for

determining fair value tracks the rationale explained in

McFarland for tying the sheriff's sale proceeds to the offset

applied in the guarantor's favor——subject to the guarantor's

ability to offer evidence supporting a different fair value

before confirmation of the sale.

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¶91 In distinguishing McFarland, the majority instead

relies on Crown Life to support its conclusion that "the debt

due under the mortgage and under the guaranty may properly

follow separate tracks." Majority op., ¶42. However, as noted

in McFarland, the guarantor in Crown Life——unlike the guarantor

in McFarland——was not a party to the foreclosure proceedings.

Unlike this case, in Crown Life there was no global settlement

of the foreclosure action and the action on the guaranty, which

proceeded independently and were resolved separately, the latter

via a court trial. Accordingly, Crown Life lends support only

to the conclusion that these two actions may proceed separately.

But that unremarkable notion does not afford the circuit court

the discretion to disregard the terms negotiated by the parties,

set forth in a written stipulation and order, and entered by the

court as a final judgment resolving all claims and defenses

between the mortgagor, the bank, and the guarantor. Even the

broad powers of a court acting in equity do not give a court

such authority. A stipulation "is entitled to all the sanctity
of any other [contract], and, when on the faith of it the

parties have so acted in execution thereof that the status quo

cannot be re-established as to one of them, it is only in a

plain case of fraud, mistake, or oppression that the court

should set it aside." Illinois Steel Co., 141 Wis. at 125. The

majority nevertheless invokes a circuit court's equitable powers

to set aside a stipulated settlement of equitable and contract

claims, to ignore the Stipulation and Order's terms, and to
decide the already-settled issues as the court wished rather

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than as the parties agreed. Why would any similarly-situated

parties ever settle such claims if the court may act on whim?9

¶92 By ignoring McFarland and casting aside the

Stipulation and Order, the majority, under the guise of equity,

jettisons fundamental rules governing the interpretation of

stipulations and civil procedure that previously informed

settlements of the sort reached by the parties in this case.

See majority op., ¶44. This ruling is without precedent but now

puts lenders, debtors and guarantors on notice that even a

stipulated settlement, signed court order, and entered judgment

will not bind a court to its terms but may be disregarded and

rewritten by the circuit court.

B. The Stipulation and Order is Not Ambiguous Regarding the
Amount Musikantow Will Be Credited on the Monetary Judgment.
¶93 The majority's interpretation of the Stipulation and

Order regarding the amount to be credited to Musikantow against

the monetary judgment is incorrect. Paragraph 11 dictates how

Musikantow is to be credited for the value from the sale of the

premises acquired by Horizon Bank:

The amount paid to [Horizon Bank] from the proceeds of
said sale of the Premises, remaining after deduction
by [Horizon Bank] of the amount of interest, fees,
costs, expenses, disbursements and other charges paid

9
The majority's disposition of this case impacts not only
these parties but potentially all lenders and borrowers. As
correctly noted by the amicus curiae, Wisconsin Bankers
Association, the uncertainty generated by the majority's
decision to disturb the reasonable expectation that the parties'
contract would be enforced may increase the cost of lending,
which basic economic principles suggest will be passed on to
borrowers rather than borne by lenders.

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or incurred by [Horizon Bank] not included in the
monetary judgment against [Musikantow] (set forth
below) shall be credited by [Horizon Bank] as payment
on said monetary judgment.
The majority says this paragraph is ambiguous because it could

reasonably be interpreted to mean the proceeds from the sale

established the minimum amount of Musikantow's credit. Majority

op., ¶¶48-51. I disagree.

¶94 When read in the context of the Stipulation and Order,

there is no reasonable alternative reading of paragraph 11's

language——"proceeds of said sale . . . shall be

credited . . . as payment on said monetary judgment"——except

that Musikantow receives the $2,250,000 credit on the monetary

judgment. The majority does not offer any reasonable

alternative, nor does it employ any discernable principles of

contract interpretation. See majority op., ¶¶54-56. Rather,

the majority simply regards this phrase as open–ended——"the

floor"——thereby entitling Musikantow to a credit on the monetary

judgment in some amount greater than the $2,250,000 credit bid

by Horizon Bank. This conclusory assumption loses sight of the
fact that paragraph 11 is part of a Stipulation and Order that

resolves all claims and defenses between the parties. The

Stipulation and Order directs a sheriff's sale of the premises

for a "fair and adequate price" (paragraph 8); preserves

Musikantow's rights to contest court confirmation of the sale

(paragraph (f)); and mandates Musikantow be credited the amount

paid to Horizon Bank from the proceeds of the sale as payment on

the monetary judgment against him (paragraph 11). There is no
provision whatsoever permitting the court to "leav[e] the

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determination of the credit toward the guaranty for another

day." Majority, ¶44.

¶95 The negative implication canon——expressio unius est

exclusio alterius——is especially instructive here. "Under this

principle, a specific mention in a contract of one or more

matters is considered to exclude other matters of the same

nature or class not expressly mentioned, even when all such

matters would have been inferred had none been expressed."

Goebel v. First Fed. Sav. & Loan Ass'n of Racine, 83

Wis. 2d 668, 673, 266 N.W.2d 352 (1978) (citations omitted).

Essentially, the canon provides that the thing specified "can

reasonably be thought to be an expression of all that shares in

the grant or prohibition allowed." Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts 107

(2012).

¶96 Here, paragraph 11 is the sole and specific mention in

the Stipulation and Order of how much Musikantow will be

credited on the monetary judgment. Paragraph 11 excludes
alternative means by which Musikantow can be credited on the

monetary judgment. It does not contain inclusive language (for

example, "not limited to," "including," "such as," "at least,"

et cetera), an integrated list of items to be credited, or any

language that would indicate Musikantow is entitled to be

credited more than the "proceeds of said sale" of the mortgaged

property.

¶97 The majority asserts that "[t]he stipulation
prescribes what must be done, but it does not describe that the

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amount is the totality of the credit." Majority op., ¶54. The

negative implication canon rhetorically responds: "Does not the

act of prescribing the mode, necessarily imply a prohibition to

all other modes?" Scalia & Garner, supra ¶35, at 109-10

(quoting South Carolina ex rel M'Cready v. Hunt, 20 S.C.L. (2

Hill 1), 230 (S.C. Ct. App. 1834)). Here, solely prescribing

the mode and extent of crediting Musikantow from the "proceeds

of said sale" works to exclude all other modes and amounts of

credit.

¶98 Regardless of the pervasive invocations of equity by

the majority, the Stipulation and Order governs all issues

presented. Enforcing this agreement is entirely dispositive of

Musikantow's appeal. The Stipulation and Order is unambiguous

and its terms provide the singular means by which Musikantow

will be credited for "payment on said monetary judgment": the

"proceeds of said sale," specifically $2,250,000.

IV

¶99 The majority incorrectly invokes equity to trump the
terms and conditions of a valid and enforceable Stipulation and

Order. The majority unwinds the Stipulation and Order, and

"decouples" the contract claim against Musikantow from the

foreclosure claim against Marshalls Point. The Stipulation and

Order mandates that Musikantow receive no more credit than the

"proceeds of said sale," which was the amount of the $2,250,000

credit bid, yet the majority allows Musikantow to return to the

circuit court to relitigate an issue he waived by declining to
exercise the rights he reserved under the Stipulation and Order.

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The court of appeals decision was correct and I would affirm.

Because equity may not override the terms of a stipulation and

order for judgment, I respectfully dissent.

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