Contracts — stock re-purchase agreements — good faith

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Wisconsin Court of Appeals

Civil

Contracts — stock re-purchase agreements — good faith

When construing a stock re-purchase agreement, a circuit court is not barred from considering equitable factors.

The circuit court, Judge DiMotto presiding, indicated it felt constrained by Strozinsky despite what it apparently saw as the equity behind Beidel’s position: ‘A strong argument can be made that this scenario is so strong that [constructive termination] should apply and there shouldn’t be a requirement for an actual resignation, but I can’t do that.’ The circuit court did not, however, consider the balancing of equities required in a case where a party seeks specific performance of a contract. Although the essential facts (who did and said what and when) may not be in real dispute, the parties dispute the inferences that can be drawn from those facts. As seen from their respective positions, outlined above, they each assert that the balance of the equities tips their way. We thus remand for the circuit court’s determination where the bulk of the equities lie, including an evaluation of what the parties intended when they agreed to the stock re-purchase agreement, and whether it should grant specific performance as Beidel requested. On remand, the circuit court, in the reasoned exercise of its discretion, may decide that this requires an evidentiary hearing or it may decide that the summary judgment materials submitted by the parties suffice. The parties agreed at oral argument that because a claim seeking specific performance is an equitable action, there is no right to a trial by jury. See Green Spring Farms, 172 Wis. 2d at 33, 492 N.W.2d at 394 (‘It is well settled that the right to a trial by jury does not extend to equitable actions.’); Gates v. Parmly, 93 Wis. 294, 305–306, 66 N.W. 253, 257 (1896) (no right to a jury in an action for specific performance).”

Reversed and Remanded.

Publication in the official reports is recommended.

2011AP788 Beidel v. Sideline Software, Inc.

Dist. I, Milwaukee County, DiMotto, Brash, JJ., Fine, J.

Attorneys: For Appellant: Aprahamian, Michael J., Milwaukee; Keenan, Brian, Milwaukee; For Respondent: Grimmer, Kim, Madison; West, Travis James, Madison