ASH PARK, LLC. V. ALEXANDER & BISHOP, LTD 783 N.W.2d 294 (Wis. 2010) CASE BRIEF

ASH PARK, LLC. V. ALEXANDER & BISHOP, LTD

783 N.W.2d 294 (Wis. 2010)

NATURE OF THE CASE: Alexander (D), buyer, appealed a decision that affirmed a summary judgment in favor of Ash (P), seller, and ordered specific performance of a real estate contract.

FACTS: D made an offer to purchase a parcel of real estate from P with the plan of developing it into a multi-tenant retail shopping center. P submitted a counter-offer, which set the purchase price at $6.3 million, with the closing date to take place on or before December 14, 2007. This was accepted by D. If D could not secure an anchor tenant, it could terminate the contract. D also had the right to extend this lease contingency period. The contract explicitly provided for specific performance as a remedy for 'material failure to perform any obligations under this Offer. D had not secured an anchor tenant by July 20, 2007, and it exercised its option to terminate the contract. D had not secured an anchor tenant by July 20, 2007, and it exercised its option to terminate the contract. On August 1, the parties signed an 'Agreement to Reinstate Vacant Land Offer to Purchase.' The reinstatement agreement did not alter the extension dates, the closing date, or the terms of the lease contingency. D still retained two options: (1) extend the lease contingency for an additional period of two months, or (2) terminate the contract. The contract became binding on September 20. On October 9, D informed P that its prospective anchor tenant was not interested in immediately leasing the property. The closing did not occur and P filed a complaint for specific performance or damages at law. D argued that the damages at law were adequate and thus specific performance was unavailable. The court determined that the contract had been reinstated and that D had breached the contract. The court ordered the parties to specifically perform the contract. It reasoned that the property was unique, that specific performance was the preferred remedy under and that under the terms of the contract the parties had bargained for this remedy. D appealed and the court of appeals affirmed. D appealed again.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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