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2008AP1735 Ash Park LLC v. Alexander & Bishop Ltd., Dist. III, Brown County, Atkinson, J., Hoover, P.J.

By: dmc-admin//April 13, 2009//

2008AP1735 Ash Park LLC v. Alexander & Bishop Ltd., Dist. III, Brown County, Atkinson, J., Hoover, P.J.

By: dmc-admin//April 13, 2009//

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Property
Real estate sale; remedies; interest

Although a property vendor had an adequate remedy at law for money damages, the trial court did not err when it entered a summary judgment and ordered the equitable remedy of specific performance of a real estate purchase contract.

In Heins v. Thompson & Flieth Lumber Company, 165 Wis. 563, 571, 163 N.W. 173 (1917), the court observed that the purchaser in a real property transaction could compel specific performance, and held "[t]he right of the vendor, in such case, may be likewise enforced. Their rights are mutual as to remedies." Even then, the rule was well established in Wisconsin. Additionally, the Wisconsin Supreme Court has consistently rejected the contention that a property vendor may not seek specific performance if it has an adequate remedy at law available. Although the courts have not recently addressed this argument, we have recognized a vendor's right to sue for specific performance, without suggesting there must be no adequate remedy at law. Further, WIS. STAT. § 840.03 lists "specific performance of contract" as one of the numerous remedies that may be pursued in a real property action, singly or in combination, "unless the use of a remedy is denied in a specified situation."

"Moreover, a circuit court has very little discretion to deny a vendor's request for specific performance. 'The parties being competent to contract, and having made an agreement reasonably certain in all its parts, and not objectionable for unfairness or inequity, there is no room for … judicial discretion as to whether it should be specifically performed. Such performance is a matter of right.' Heins, 165 Wis. at 573. This rule was reaffirmed and quoted in Anderson v. Onsager, 155 Wis. 2d 504, 513, 455 N.W.2d 885 (1990), albeit in an action by a purchaser against the vendor. There, the court ruled 'specific performance of a contract to sell land should be ordered as a matter of course,' unless doing so would be 'unfair, unreasonable, or impossible.' Id. at 512-13."

Alexander & Bishop's arguments that there were disputed facts precluding summary judgment, that the court should have granted its motion for reconsideration or relief under WIS. STAT. § 806.07, and that pre- and postjudgment interest was erroneously calculated, are similarly unavailing.

Affirmed.

Recommended for publication in the official reports.

2008AP1735 Ash Park LLC v. Alexander & Bishop Ltd., Dist. III, Brown County, Atkinson, J., Hoover, P.J.

Attorneys: For Appellant: Marone, Douglas K., Oshkosh; McDermott, J. T., Oshkosh; Bailey-Rihn, Valerie, Madison; For Respondent: Burnett, R. George, Green Bay; Blaney, Patrick M., Green Bay

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