Ash Park, LLC v. Alexander & Bishop, Ltd.

¶ 1. The petitioner, Alexander & Bishop, Ltd., seeks review of a published decision of the court of appeals affirming the orders of the circuit court. 1 After Alexander & Bishop breached a contract to purchase a parcel of real estate from Ash Park, LLC, the circuit court granted summary judgment in favor of Ash Park and ordered specific performance of the contract. It also imposed interest on the purchase price.

¶ 2. Alexander & Bishop asserts that the circuit court erroneously exercised its discretion under existing law by ordering specific performance without requiring Ash Park to demonstrate that a legal remedy would be inadequate and by failing to inquire whether performance of the contract would be possible. In the alternative, Alexander & Bishop asks us to change Wisconsin law in one of three ways. First, it contends *710 that a seller of real estate should be required to demonstrate that a legal remedy would be inadequate as a prerequisite to an award of specific performance. Second, it argues that ordering a judicial sale of the property and a money judgment for the deficiency should be a mandatory procedure to effectuate an award of specific performance. Third, it asks us to require mitigation of damages when a seller asks for legal interest in addition to the equitable remedy of specific performance.

¶ 3. Finally, Alexander & Bishop asserts that the circuit court erroneously exercised its discretion by imposing interest on the purchase price.

¶ 4. We conclude that the circuit court did not erroneously exercise its discretion when it ordered specific performance of this contract. The contract provides that specific performance is an available remedy, and neither the contract nor Wisconsin law requires Ash Park to demonstrate that a legal remedy would be inadequate as a precondition to relief. Further, although impossibility is a defense to specific performance, Alexander & Bishop failed to present evidence that performance would be impossible in the proceedings before the circuit court.

¶ 5. Additionally, we decline to alter longstanding Wisconsin law by imposing a requirement that a seller of real estate demonstrate the inadequacy of legal damages as a prerequisite to an order for specific performance. Although a judicial sale and deficiency judgment may be a means of effectuating an award of specific performance, we conclude that this procedure is not mandatory. Rather, it depends on the facts and equities of the case. Because a duty to mitigate is contrary to an award of specific performance and would pose practical difficulties for the non-breaching seller, *711 we decline to require mitigation when a seller asks for interest in addition to specific performance. 2

¶ 6. Finally, we conclude that the circuit court did not erroneously exercise its discretion by ordering interest on the purchase price. Accordingly, we affirm the court of appeals and remand to the circuit court for further proceedings.

I

¶ 7. In 2007, Ash Park was the owner of a vacant parcel of real estate that was subject to a mortgage. On April 6, Alexander & Bishop made an offer to purchase the parcel of real estate with the plan of developing it into a multi-tenant retail shopping center.

¶ 8. Ash Park submitted a counter-offer, which incorporated by reference most of the terms of Alexander & Bishop's offer to purchase. It set the purchase price at $6.3 million, with the closing date to take place on or before December 14, 2007. The counter-offer was accepted by Alexander & Bishop and is the contract that forms the basis of this lawsuit.

¶ 9. The parties' contract included a leasing contingency that gave Alexander & Bishop the option to terminate the contract if it was unable to secure an anchor tenant:

This Offer is contingent upon Buyer negotiating a lease with Buyer's principal tenant... with terms and conditions acceptable to Buyer... on or before July 20, *712 2007. If Buyer is unable to negotiate such lease by said date, this Offer may be terminated at the option of Buyer and all earnest money shall be returned to Buyer.. ..

Upon timely notice, Alexander & Bishop also had the right to extend the lease contingency period:

[T]he Buyer shall have the right to extend the lease contingency period for two (2) additional periods of two (2) calendar months, i.e. to September 20, 2007 and November 20, 2007, provided Buyer (1) provides written notice to Seller of its intent to exercise such extension prior to the expiration of the lease contingency period and (2) pays to Seller, with its notice of exercise, a non-refundable extension fee . .. of $25,000 for each extension period. The non-refundable extension fee shall be non-refundable but applicable to the purchase price at closing.

The contract specified that all contingencies would be waived if not invoked by July 20, 2007.

¶ 10. The contract also included a default clause, which enumerated remedies in the event of a breach. Among other remedies, the contract explicitly provided for specific performance as a remedy for "material failure to perform any obligations under this Offer":

Seller and Buyer each have the legal duty to use good faith and due diligence in completing the terms and conditions of this Offer. A material failure to perform any obligation under this Offer is a default which may subject the defaulting party to liability for damages or other legal remedies.

If Buyer defaults, Seller may:

(1) sue for specific performance and request the earnest money as partial payment of the purchase price; or

(2) terminate the Offer and have the option to [pursue liquidated or actual damages.]

*713 If Seller defaults, Buyer may:

(1) sue for specific performance; or

(2) terminate the Offer and request the return of the earnest money, sue for actual damages, or both.

In addition, the Parties may seek any other remedies available in law or equity.

The Parties understand that the availability of any judicial remedy will depend upon the circumstances of the situation and the discretion of the courts....

¶ 11. Alexander & Bishop had not secured an anchor tenant by July 20, 2007, and it exercised its option to terminate the contract. However, on August 1, the parties signed an "Agreement to Reinstate Vacant Land Offer to Purchase," which stated that "the parties desire to reinstate the Offer on its original terms, except as specifically set forth herein[.]" It provided that upon the execution of the agreement by both parties "and the deposit by the Buyer [of] the Extension Fee with the Escrow Agent, the Offer shall be fully reinstated in accordance with its terms[.]"

¶ 12. The reinstatement agreement did not alter the extension dates, the closing date, or the terms of the lease contingency. Thus, until the next extension deadline, Alexander & Bishop retained two options: (1) extend the lease contingency for an additional period of two months, or (2) terminate the contract. Alexander & Bishop did not exercise either one of these options. As a result, the contract became binding on September 20.

¶ 13. On October 9, however, Alexander & Bishop informed Ash Park that its prospective anchor tenant was not interested in immediately leasing the property. The parties discussed amending their agreement, but their negotiations were unsuccessful.

*714 ¶ 14. Ash Park prepared for the December 14 closing, but the closing did not take place. Shortly thereafter, Ash Park filed a complaint for breach of contract, demanding "judgment from and against the Defendant for specific performance or damages at law, at the election of [Ash Park], in accordance with the terms of the parties' Purchase and Sale Contract." 3

¶ 15. In response to Ash Park's motion for summary judgment, Alexander & Bishop asserted that there was no breach of contract because the contract had not been reinstated. 4 It acknowledged that specific performance was an available remedy that "rests in the discretion of the court," but it contended that specific performance "only comes into play when damages that could be had at law are an inadequate remedy." Alexander & Bishop argued that Ash Park's damages "are solely economic and are measurable upon sale of the property after [Ash Park] mitigates its damages."

¶ 16. Further, Alexander & Bishop contended that Ash Park had elected the remedy of liquidated damages consisting of $50,000 in earnest money and that such a remedy was adequate. It contended that "[i]t would be inconsistent [for Ash Park] to retain the earnest money and sue for specific performance." Alex *715 ander & Bishop did not argue that specific performance was impossible because it could not pay the purchase price.

¶ 17. After arguments, the circuit court determined that the contract had been reinstated and that Alexander & Bishop had breached the contract. 5 The court granted summary judgment in favor of Ash Park and ordered the parties to specifically perform the contract. It reasoned that the property was unique, that specific performance was the preferred remedy under Wisconsin law, and that under the terms of the contract the parties had bargained for this remedy:

This is a unique piece of property. I think specific performance is actually preferred given the citations [to Wisconsin cases involving land transactions]. I agree in most cases or many cases it's not asked for because often the party against who it's attempted to be enforced doesn't have the financial ability or at least known ability to go through with it. . .. [B]ut that doesn't mean specific performance shouldn't be used by the courts just because it's not [used] in certain situations. The parties are entitled to what they contracted for, and they contracted for the purchase of this property.

¶ 18. After this oral decision, Ash Park asked the circuit court to include an award of interest in its order as well as a deadline for performance. Alexander & Bishop objected. On April 9, 2008, the court entered an *716 order providing "that plaintiff shall have judgment from and against the defendant for specific performance of the parties' Purchase and Sale Contract dated April 20, 2007, and the parties shall take such actions as are necessary to complete the transaction." The order contained neither an award of interest nor a deadline for performance.

¶ 19. Shortly thereafter, Ash Park filed various motions for the appointment of a receiver and for contempt. It asserted that" [i]t is clear from the correspondence, facts, and arguments made by counsel that Alexander & Bishop has no intention of complying with this Court's Order until they are forced to do so."

¶ 20. Alexander & Bishop countered that Ash Park was not entitled to the appointment of a receiver and that it would be "pointless" because a receiver "would not be able to close any faster than [Alexander & Bishop]. A receiver would not be able to procure financing without an anchor tenant and, therefore, would not be able to carry the judgment into effect."

¶ 21. Further, it argued that contempt proceedings were inappropriate because the order contained no deadline for performance and because Ash Park had not demonstrated that Alexander & Bishop's failure to perform was "intentional." Alexander & Bishop asserted that "no developer can obtain financing for a shopping mall development as planned here, without a signed long-term anchor tenant," and "without a tenant, [Alexander & Bishop] cannot close." 6

*717 ¶ 22. On May 22, Alexander & Bishop moved for reconsideration of the judgment for specific performance. In the alternative, it moved for relief from the judgment. 7

¶ 23. The court heard several motions on May 30, June 27, and July 21. Counsel for Ash Park argued: "The practical problem is that there is no incentive for the defendant to abide by or adhere to this Court's order as current circumstances presently exist" unless the court imposed interest, appointed a receiver, or ordered contempt sanctions. Counsel for Alexander & Bishop agreed that interest might be appropriate, but disagreed about the amount: "I would have to concede that under Estreen v. Bluhm[ 8 ] there is some authority to impose some incentives [for performing], but I would disagree that the 12 percent money judgment rate applies because this is not a money judgment."

¶ 24. The court determined that it would impose interest, but it was initially undecided about the rate. It explained its reasoning to Alexander & Bishop: "I've got to give some incentive.... There has got to be some incentive to get this resolved, and if [Ash Park is] sitting with all the holding costs," there is no incentive for *718 Alexander & Bishop to specifically perform. "[Ash Park has] to believe that, you know, defendant wakes up in the morning with a desire to get this transaction completed and the Court order complied with."

¶ 25. On July 21, the circuit court orally denied Alexander & Bishop's motions for reconsideration and for relief from judgment. The court held the motion for receivership in abeyance as Alexander & Bishop negotiated with a potential tenant: "I'm hesitant to grant [the motion to appoint a receiver], as I indicated in the past, because I think we'll more likely get this matter resolved faster through the efforts of the defendants rather than having a receiver come in." 9

¶ 26. On July 21, the court ordered interest starting at a rate of 5 percent, which would jump to a rate of 7.5 percent and increase one-half percent each month until the date of closing. The court explained: "Now, I realize that that can't go on forever. And if at some point counsel wants to then get relief from that order, they can file a motion and explain to me that it's been one month or two months or three months and it's become an unreasonable rate."

¶ 27. On August 18, however, the court entered an order stating that it had "reconsidered the issue of appropriate interest rates." It "vacate[d] the oral decision placed upon the record on July 21, 2008," and instead imposed 5 percent prejudgment interest and 12 percent postjudgment interest on the purchase price. Although the circuit court order indicated that Ash *719 Park had referenced Wis. Stat. § 815.05(8) (2007-08) 10 when arguing for the imposition of interest, the circuit court did not cite to any statute as authority when it ordered the interest. The order specified that interest would stop accruing on the date of closing.

¶ 28. The court further explained that "[Alexander & Bishop's] most compelling argument against the imposition of interest was that the plaintiff is still owner of the property and receives the benefits of ownership post-closing date and post-judgment date." Yet, it concluded that there was no beneficial use of the property:

It appears from all statements made by counsel that.. . the only benefit of holding the property would be appreciation. Since the property is being held without further activity pending defendant's compliance with its contractual obligation, any appreciation of the market value would accrue to the defendant. The plaintiff could rent the land and receive rent proceeds but the type of development in the area does not appear feasible without improvements. It makes no sense for the plaintiff to improve the property pending closing. 11

*720 ¶ 29. On appeal, the court of appeals concluded that the circuit court did not erroneously exercise its discretion by ordering specific performance and interest. Ash Park, LLC v. Alexander & Bishop, Ltd., 2009 WI App 71, ¶¶ 6-11, 317 Wis. 2d 772, 767 N.W.2d 614. Further, it rejected Alexander & Bishop's argument that when specific performance is ordered in favor of a seller, "the actual remedy is an order for judicial sale" and deficiency judgment. Id., ¶ 12.

¶ 30. In its petition for review, Alexander & Bishop presented a single issue: "May a seller of real estate seek both specific performance, as well as interest on the purchase price without a requirement that it mitigate damages?" Alexander & Bishop acknowledged that under Wisconsin law, specific performance is an available remedy for a seller of land after the buyer's breach. Yet, Alexander & Bishop asserted: "This case presents the Court with an opportunity to examine and reshape the analytical framework governing the remedies available to a seller of real estate where the purchaser will not or, as in this case, cannot perform." 12

II

¶ 31. Alexander & Bishop's petition for review appeared to recognize that the circuit court had discretion to award specific performance to a seller of real estate under current law, but it asserted that the *721 analytical framework of Wisconsin law should be "reshaped." Nevertheless, in this court, Alexander & Bishop now contends that the circuit court erroneously exercised its discretion by ordering specific performance here. Additionally, it asserts that the court erroneously exercised its discretion by ordering interest at the statutory rate.

¶ 32. The decision to grant or deny the equitable remedy of specific performance is within the discretion of the circuit court. Anderson v. Onsager, 155 Wis. 2d 504, 513, 455 N.W.2d 885 (1990). Likewise, in a case of equity, the allowance of interest is a matter within the circuit court's discretion. Estreen v. Bluhm, 79 Wis. 2d 142, 156, 255 N.W.2d 473 (1977). A reviewing court will affirm the circuit court's exercise of discretion unless it was erroneous. The circuit court erroneously exercises its discretion if it makes an error of law or neglects to base its decision upon the facts of the record. State v. Fischer, 2010 WI 61, ¶ 15, 322 Wis. 2d 265, 778 N.W.2d 629.

¶ 33. Whether we should alter Wisconsin jurisprudence presents a question of law. We decide questions of law independently of the determinations rendered by the circuit court and the court of appeals.

¶ 34. We begin by setting forth the several remedies available to a seller of real estate upon the buyer's breach. Then we determine whether the circuit court erroneously exercised its discretion by awarding specific performance. Next, we discuss Alexander & Bishop's proposals for altering the analytical framework governing the remedies available to a seller of real *722 estate. Finally, we determine whether the circuit court erroneously exercised its discretion by ordering interest on the purchase price.

III. Remedies

¶ 35. When a buyer breaches a contract, several different remedies may be available to the seller. 2 Contract Law in Wisconsin §§ 13.1, 13.4 (3d ed. 2007). The seller may seek actual damages, often measured as the difference between the contract price and the value of the property. 13 Id., § 13.6; see also 25 Samuel Williston, A Treatise on the Law of Contracts, § 66:80 at 8-9 (4th ed. 2002). The seller may select liquidated damages — typically, retention of earnest money. 2 Contract Law in Wisconsin, supra, §§ 13.36, 13.62. Finally, the seller may seek specific performance of the contract. Id. § 13.53.

¶ 36. Actual damages and liquidated damages Eire considered damages at law — a legal remedy. By contrast, specific performance is an equitable remedy that seeks to award performance of the contract as specifically agreed. Id. § 13.53. The purpose of specific performance is to order the breaching party to do that which it agreed to do in the contract. Id.

¶ 37. Here, the parties' contract provided specific performance as one of several remedies Ash Park could *723 seek in the event of Alexander & Bishop's breach. 14 When a contract specifies remedies available for breach of contract, the intention of the parties generally governs. Moritz v. Broadfoot, 35 Wis. 2d 343, 347-48, 151 N.W.2d 142 (1967). Additionally, under Wisconsin common law, specific performance is a remedy available to a seller of real estate. See, e.g., Heins v. Thompson & Flieth Lumber Co., 165 Wis. 563, 571, 163 N.W 173 (1917); see also Anderson, 155 Wis. 2d at 511-12 (reaffirming the rule of Heins).

¶ 38. The availability of specific performance as a remedy does not mean that the court will automatically grant specific performance upon a seller's request. Rather, as an equitable remedy, an award of specific performance is discretionary. Anderson, 155 Wis. 2d at 513. The fairness of ordering specific performance depends on the facts and equities of the individual case before the circuit court and will vary from case to case. 15

¶ 39. Before ordering specific performance, the court must be satisfied that the claim is fair, just, reasonable, and not the product of an unconscionable or *724 oppressive bargain. Contract Law in Wisconsin, supra, § 13.61 (citing McKinnon v. Benedict, 38 Wis. 2d 607, 619, 157 N.W.2d 665 (1968)); see also Anderson, 155 Wis. 2d at 512. Further, impossibility of performance is a defense to specific performance: "[Wlhere it would be impossible for a party to perform the contract, specific performance will not be granted." 16 Anderson, 155 Wis. 2d at 512.

IV Circuit Court's Exercise of Discretion

¶ 40. Alexander & Bishop contends that the circuit court erroneously exercised its discretion by failing to "hold an evidentiary hearing to determine whether specific performance was appropriate," either because the seller might be able to sell the property to someone else, or because the buyer could demonstrate that it was unable to close. In essence, this argument charges the circuit court with two discrete errors. First, Alexander & Bishop asserts that the circuit court erred by not requiring Ash Park to demonstrate that it had no adequate remedy at law. Second, it asserts that the circuit court erred by failing to determine whether performance of the contract was "impossible." We address each argument in turn.

A

¶ 41. In some contexts, specific performance is unavailable where legal damages are adequate to remedy the breach. See, e.g., Restatement (Second) of *725 Contracts § 359 (1981); 25 Williston, supra, § 67:1 at 184 ("[T]he general rule defining the instances where specific performance will be granted may be stated as follows: where damages are an inadequate remedy and the nature of the contract is such that specific enforcement of it will not be impossible or involve too great practical difficulties... equity will grant a decree of specific performance."); Contract Law in Wisconsin, supra, § 13.53.; Welch v. Chippewa Sales Co., 252 Wis. 166, 168, 31 N.W.2d 170 (1948).

¶ 42. In the context of contracts for land, however, Wisconsin law does not require a seller to demonstrate the inadequacy of a remedy at law as a prerequisite to an award of specific performance. Wisconsin statutes provide that "specific performance of contract or covenant" is an available remedy for "any person having an interest in real property . .. unless the use of a remedy is denied in a specific situation." Wis. Stat. § 840.03(1)(f).

¶ 43. Further, Wisconsin courts have not restricted a seller's remedy of specific performance to cases in which a remedy at law is inadequate. In Heins, the seller of a parcel of land sought specific performance, and this court determined that specific performance was an available remedy. 165 Wis. at 571. Similarly, in Taft v. Reddy, 191 Wis. 144, 150, 210 N.W. 364 (1926), this court concluded that "the [land contract] vendor's right to specific performance is established beyond question[.]" See also Yee v. Giuffre, 176 Wis. 2d 189, 194 n.3, 499 N.W.2d 926 (Ct. App. 1993). None of these cases requires the seller to demonstrate that a legal remedy would be inadequate.

¶ 44. Alexander & Bishop cites Henrikson v. Henrikson, 143 Wis. 314, 127 N.W. 962 (1910), for the *726 proposition that specific performance is unavailable as a remedy when the buyer breaches a contract to purchase land and there is an adequate remedy at law. Henrikson does not support Alexander & Bishop's argument. In that case, there was no valid and enforceable contract to transfer land. Rather, the agreement at issue was an oral contract that did not satisfy the statute of frauds. Id. at 317. Henrikson does not address the remedies available to a seller when the buyer breaches an enforceable contract for the sale of land.

¶ 45. Wisconsin law is consistent with the general rule across jurisdictions. Courts have traditionally awarded specific performance of a contract for the sale of land without a prerequisite that the non-breaching party demonstrate that legal damages would be inadequate. Restatement (Second) of Contracts § 360 cmt. e (1981) ("Contracts for the sale of land have traditionally been accorded a special place in the law of specific performance.... [T]he seller who has not yet conveyed is generally granted specific performance on breach by the buyer."); Edward Yorio, Contract Enforcement: Specific Performance and Injunctions 281 (1989) ("Traditionally, when a buyer reneged on a promise to purchase realty, specific performance was almost universally available to remedy the breach.").

¶ 46. Although Ash Park does contend that damages at law would be an inadequate remedy, 17 we need not decide this factual question here. We conclude that the circuit court did not erroneously exercise its discretion by ordering specific performance without requiring Ash Park to demonstrate that a remedy at law would be inadequate.

*727 B

¶ 47. We turn to Alexander & Bishop's second argument that performance of the contract would be impossible. Wisconsin law recognizes impossibility as a defense to specific performance. Anderson, 155 Wis. 2d at 512-13. "The defense of impossibility rests on the common-sense principle that a court of equity will not order an impossible act." Yorio, supra, § 5.5 at 112.

¶ 48. In its arguments to this court, Alexander & Bishop asserts that it is "impossible" for it to perform the contract: "[T]he anchor tenant never committed which made it impossible for Alexander & Bishop to get financing and close on the deal."

¶ 49. However, Alexander & Bishop never asserted impossibility in the circuit court as a defense to specific performance — either in opposition to Ash Park's motion for summary judgment or in its motion for reconsideration or relief from judgment. 18 Further, in its oral ruling granting specific performance, the circuit court appeared to recognize that the financial inability of a buyer could preclude such an award. 19 Yet, Alexander & Bishop never asked the circuit court to *728 determine whether it would be "impossible" for Alexander & Bishop to perform.

¶ 50. As a result, the circuit court has not made any factual findings about whether performance would be impossible, and there is no finding of fact for this court to review. "[W]e will not consider factual matters raised for the first time on appeal; our review is confined to the facts in the record before the trial court at the time it decided the motion for summary judgment." Coopman v. State Farm, 179 Wis. 2d 548, 556, 508 N.W.2d 610 (Ct. App. 1993); see also Lind v. Lund, 266 Wis. 232, 237, 63 N.W.2d 313 (1954).

¶ 51. Alexander & Bishop's assertion that the circuit court should have held a hearing at its own initiative ignores a litigant's responsibility to develop its case in the circuit court and to raise arguments on its own behalf. Here, Alexander & Bishop had the opportunity to raise defenses and to request an evidentiary hearing, but it failed to do so.

¶ 52. It was not until months after the award of specific performance when faced with the possibility of contempt sanctions that Alexander & Bishop first contended that it did not have the financial ability to perform the contract. Alexander & Bishop asserted that "no developer can obtain financing for a shopping mall development as planned here, without a signed long-term anchor tenant." Thus, it argued, contempt sanctions should not be imposed because "without a tenant, [Alexander & Bishop] cannot close."

¶ 53. Even if Alexander & Bishop's assertion that it cannot obtain financing for a shopping mall development without an anchor tenant is true — a question of fact we do not decide on appeal — it does not necessarily *729 follow that it is impossible for Alexander & Bishop to specifically perform this contract. The order for specific performance does not require Alexander & Bishop to finance and develop a shopping mall, which could indeed require a large investment of capital. Rather, the order requires that it purchase only this parcel of vacant land.

¶ 54. Without making a viable argument identifying how the circuit court erroneously exercised its discretion, Alexander & Bishop essentially asks us to reevaluate the facts and equities in this case. We decline to usurp the equitable function of the circuit court.

¶ 55. We conclude that the circuit court did not erroneously exercise its discretion when it awarded specific performance to Ash Park. The court recognized that specific performance was a remedy that was expressly included in the parties' contract. Further, it recognized that specific performance is also an available remedy under the common law. If later proven, Alexander & Bishop's alleged financial inability to perform may be cause for the circuit court to modify its judgment. 20 However, Alexander & Bishop's bare allegations do not provide a basis for this court to conclude that the circuit court erroneously exercised its discretion.

V Proposed Changes to Wisconsin Law

¶ 56. Having determined that the circuit court did not erroneously exercise its discretion under current Wisconsin law, we examine next Alexander & Bishop's *730 various proposals for changing the law. Alexander & Bishop has urged us to "tweak" current law in one of three ways.

¶ 57. Alexander & Bishop's first proposal asks us to harmonize the law of remedies available to a seller of real estate with the remedies available to a seller of goods by declaring that specific performance may not be ordered when there is an adequate remedy at law. This proposal would preclude a circuit court from ordering specific performance in the first instance unless the court determined that money damages were inadequate.

¶ 58. Alexander & Bishop's second and third proposals would permit the court to order specific performance even without concluding that money damages were inadequate. However, these proposals would alter the administration or enforcement of the remedy of specific performance once ordered. Alexander & Bishop encourages us to adopt a rule requiring a mandatory judicial sale and money judgment for any deficiency once specific performance has been ordered and the buyer cannot or will not pay. In the alternative, it asks us to hold that a seller who is awarded interest in addition to specific performance has a duty to mitigate its damages by attempting to resell the property.

¶ 59. All three proposals would affect the viability and meaningfulness of specific performance as a remedy for sellers of real estate under Wisconsin law. We address each proposal in turn.

A

¶ 60. Alexander & Bishop asserts that we should harmonize the remedies for a buyer's breach of a real estate contract with the remedies available for a buyer's *731 breach of a contract for goods. 21 Typically, specific performance will not be decreed as a seller's remedy for breach of a contract to sell personal property unless a remedy at law is inadequate. Welch v. Chippewa Sales Co., 252 Wis. 166, 168, 31 N.W.2d 170 (1948).

¶ 61. In support, it offers the Uniform Land Transactions Act, which was drafted in 1975. The uniform act does not recognize the remedy of specific performance for a seller of real estate and does not permit a seller to bring an action for the price under most circumstances 22

¶ 62. In the 35 years since it was drafted, no state has adopted the Uniform Land Transactions Act. 23 Ronald Benton Brown, Whatever Happened to the Uniform Land Transactions Act?, 20 Nova L. Rev. 1017, 1018 (1996). Furthermore, the uniform act was withdrawn by the National Conference on Uniform State Laws in 1990. Id. We are not persuaded that we should alter our longstanding practices by adopting an act that has since been withdrawn by the National Conference on Uniform State Laws.

*732 ¶ 63. We conclude that granting or denying specific performance as a remedy is best left to the sound discretion of the circuit court on a case-by-case basis. In exercising its discretion, a circuit court may consider whether a remedy at law would be adequate to remedy a buyer's breach. If the court determines that legal damages are perfectly adequate, the court may in its discretion choose to award damages at law rather than specific performance. Yet, because this decision is best made on the facts and equities of each individual case, we decline to adopt the rule proposed by Alexander & Bishop.

B

¶ 64. We turn next to Alexander & Bishop's second proposal. It asks us to graft onto the doctrine of specific performance a mandatory procedure for turning an equitable order into a judgment for money by requiring a judicial sale and money judgment for any deficiency. 24 Alexander & Bishop asserts that an order for specific performance should be nothing more than a *733 judgment for the purchase price, and that the procedure outlined above would be more equitable for both parties.

¶ 65. We decline to adopt Alexander & Bishop's proposal to require this procedure for three reasons. First, the proposal would collapse two distinct remedies —specific performance and actual legal damages — into one, removing for all practical purposes specific performance from the list of available remedies to a seller.

¶ 66. Alexander & Bishop explains that "a monetary judgment would be entered . .., but the judgment would not be for the full purchase price[.]" Rather, the buyer "would be responsible for the seller's damages, but not more." Yet, if specific performance meant nothing other than a judicial sale and deficiency judgment, it would not differ from a judgment for actual damages.

¶ 67. There may be reasons, however, that a seller might prefer specific performance to actual damages. In this case, for example, Ash Park explained that there is a mortgage on the property and that Ash Park would be required to satisfy the mortgage before it could transfer the title to a third-party purchaser at a judicial sale.

¶ 68. At oral argument, counsel for Ash Park asserted: "If my client sells the property at a judicial sale, he courts financial ruin[.]" He argued that if the property was sold for a sum of money that was less than the existing mortgage, his client would have to make up the difference.

¶ 69. Additionally, a mandatory judicial sale would require the seller to relinquish its interest in the property to a third party before it could pursue a deficiency judgment against the buyer. If the property sold for less than its actual value, the seller would be *734 deprived of both the property and its fair market value until it could execute its judgment for the deficiency against the breaching buyer. Alexander & Bishop's proposal to collapse actual damages and specific performance into one remedy would make the particular benefits of specific performance unavailable to an innocent seller after the buyer's breach. 25

¶ 70. The second reason we decline to adopt Alexander & Bishop's proposal is that it would require us to rewrite the parties' contract. Here, the parties' bargain included the remedy of specific performance under the appropriate circumstances. When a contract specifies