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Wisconsin

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Ash Park LLC v Alexander & Bishop Ltd, 324 Wis 2d 703, 783 NW2d 294, 2008 AP 1735 (Wis, 2010).

Facts:Alexander and Bishop, Ltd. (Alexander & Bishop) entered into an agreement with Ash Park, LLC (Ash Park) to purchase a vacant lot owned by Ash Park for development into a retail shopping center. The agreement was entered into on April 6, 2007, and closing was scheduled for December 14, 2007. The contract between the parties included a leasing contingency that allowed Alexander & Bishop to terminate the contract if it was unable to find an anchor tenant for the shopping center. This leasing contingency would only last until July 20, 2007, but could be extended, for an extension fee of $25,000. The contract specifically provided specific performance as a valid remedy.

On July 20, 2007, Alexander & Bishop, having failed to find an anchor tenant, exercised its option to terminate the contract. However, on August 1, 2007, the parties agreed to reinstate their agreement, with an extension to the leasing contingency. At the end of the contingency period, Alexander & Bishop could either extend the contingency period another two months or terminate the contract. It did neither and the purchase contract became binding as of September 20.

When closing did not take place as scheduled on December 14, 2007, Ash Park filed suit, requesting specific performance and interest. The trial court ordered specific performance, as well as interest assessed against Alexander & Bishop to give them an incentive to close the transaction. Alexander & Bishop appealed both the order for specific performance and the interest award. The court of appeals affirmed the trial court and Alexander & Bishop appealed again.

Holding:Affirmed.Alexander & Bishop first argued before the Wisconsin Supreme Court that the order of specific performance was inadequate because the trial court did not hold hearings to determine the necessity of specific performance as a remedy and the relative impossibility of specific performance by Alexander & Bishop. The court found that there was no need for the trial court to hold a hearing regarding necessity, finding that Wisconsin law does not require sellers to show the inadequacy of other remedies to be awarded specific performance. It also found that Alexander & Bishop had the opportunity to request a hearing to determine whether specific performance would be impossible and failed to do so. The court found that the litigant has a responsibility to raise arguments on his or her own behalf and cannot expect or require the trial court to do so of his or her own initiative.

Alexander & Bishop further requested that the Wisconsin Supreme Court deliberately alter the doctrine of specific performance. The Wisconsin Supreme Court rejected all three proposals, finding that specific performance exists for a reason.

In all, the Wisconsin Supreme Court rejected Alexander & Bishop's call to alter the state's specific performance rules as they apply to real estate purchase contracts. Instead, the court fully affirmed the decisions of both the trial court and court of appeals, ordering specific performance and interest in favor of Ash Park.

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