dissenting.
The issue in the case is whether the plaintiff, Rakowski Distributing (“Rakow-ski”), is a dealer for purposes of the Wisconsin Fair Dealership Law. In examining this issue on a motion for summary judgment, the district court focused only on the “hauling” contract between the plaintiff and defendant, and held that the “distribution” contract should not be considered in determining whether Rakowski is a “dealer” within the meaning of the Wisconsin Fair Dealership Law. Because I believe that the district court erred in considering only the hauling contract, I conclude that *509summary judgment is inappropriate. Accordingly, I must part company from my colleagues and respectfully dissent from their affirmance of the judgment of the district court.
The majority avoids this issue by concluding that Rakowski’s argument on appeal is so sparse that we are justified in taking “the district court’s conclusion on this point as unchallenged” and limiting our inquiry to “the hauling contract.” Op. at 505. I do not think we can ignore Ra-kowski’s submission. In a section of its brief titled “One firm, or two, or who cares?” — Rakowski initially cites the deposition of Rakowski’s CPA, who stated that Rakowski “was all one corporation.” Its brief also states:
Much was made of the fact that there were two distinct dimensions to Rakow-ski’s relationship to Marigold, “hauling” and “distributing,” and that Marigold only terminated the “hauling” dimension.
On the record evidence, Rakowski, in its 10-year relationship with Marigold, functioned as an integrated, single, ongoing firm, with one profitable division, “hauling,” and a division that operated at a loss, “distributing.” The overall business of the firm was to truck Marigold products to market.... When the hauling function was pulled, Rakowski ceased to function as a going concern. So the total physical capital investment of $750,000 was an investment supported by the terminated hauling relationship.
Appellant’s Brief at 15-16. Notably, the majority acknowledges the interdependence of the hauling and distribution contracts when it states that Rakowski “maintained [the distribution] contract because it believed that if it canceled that aspect of its relationship with Marigold it would also lose the hauling business.” Op. at 506.
The majority’s failure to consider the totality of the economic relationship between Rakowski and Marigold substantially undercuts the protection afforded by the Wisconsin Fair Dealership Law. The statute states that a dealership means “a contract or agreement.” Wis. Stat. § 135.02(3). The use of both terms in the disjunctive is a strong indication that the Wisconsin legislature sought to protect economic relationships broader than a single contract. However, even if w;e assume that the two terms have, within the context of this statute, the same meaning, it is clear that the entirety of the parties’ economic relationship must be considered. Wisconsin precedent and scholarly commentary make clear that, rather than consider only the hauling contract, the entire relationship ought to have been evaluated. That treatise states:
Since the statutory definition of dealership begins with the words “ ‘Dealership’ means a contract or agreement,” it does not seem overly literal-minded to conclude that a dealership is indeed a type of contract or agreement. It is also helpful, however, to think of a dealership as a type of relationship. It is a relationship consisting of a contract or agreement, and of shared financial interest and interdependence sufficient to create‘a community of interest between the parties.
Thinking of the dealership as a relationship rather than simply as a contract or agreement brings into clearer focus the fundamental issue of who should be protected by the statute. The answer to that question turns on factors inherent in the parties’ relationship.... One will see these factors if one looks at the parties’ entire relationship; one may miss them if one looks only at the parties’ contract.
Michael A. Bowen & Brian E. Butler, The Wisconsin Fair Dealership Law § 4.6, at 4-9 (1998) (emphasis added).
Bowen and Butler rely upon Ziegler Co., Inc. v. Rexnord, Inp., 139 Wis.2d 593, 407 N.W.2d 873 (1987), reconsidered on other grounds, 147 Wis.2d 308, 433 N.W.2d 8 (1988), in support of this entirety-of-the-relationship approach. In Ziegler, the *510Wisconsin Supreme Court, in determining whether the plaintiff was a dealer, considered investments made by the plaintiff which were not' required by the terms of the contract. See id. at 880-81 & n. 11. Instead of looking only to the contract, the court looked to the relationship as a whole. See id. The argument for looking at the entirety of the relationship is, of course, especially strong in this case because, as the majority notes, each party understood that the continuation of their relationship was premised on the existence of both contracts.
When the distributing side of the business is considered as part of the relationship, it is clear that summary judgment should not be granted. With respect to the distributing aspect of their relationship, Rakowski sought business for Marigold and was paid, based on Marigold’s profits and shared the risk of loss. There is therefore a triable issue of fact regarding whether Rakowski was Marigold’s dealer. By focusing solely on the hauling aspect of the parties’ relationship, while admitting at the same time that the actual relationship between the parties was a dual one of hauling and distributing, the majority bases its decision on an economic relationship that is purely hypothetical. The plaintiff, however, brought us a real case with very real economic consequences. It has a right to a decision on its real case, not on the court’s hypothetical one. Accordingly, I respectfully dissent.