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  • WisBar News
    December 12, 2014

    Supreme Court Accepts Real Estate Commission Case and Nine Others

    Dec. 12, 2014 – The Wisconsin Supreme Court has added 10 cases to its docket, including one to determine whether a commercial real estate brokerage firm will get a $378,000 commission on a $6.3 million deal, even though the deal fell through.

    Seller Ash Park LLC entered a listing contract with Re/Max Select LLC, a real estate brokerage firm, to sell a vacant lot to Alexander & Bishop LTD.

    The parties used a standard vacant land listing contract form approved by the Wisconsin Department of Regulation and Licensing. Under the contract, Re/Max would list the property for sale at $6.2 million and take a 6 percent commission.

    Alexander & Bishop contracted to purchase the site for $6.3 million but the deal never closed. Ash Park sued for specific performance, which was ordered. But Ash Park could not enforce the judgment because Alexander & Bishop did not have sufficient funds.

    The case settled for $1.5 million. Re/Max intervened to collect its commission against Ash Park, as well as prejudgment interest, costs, and attorney’s fees. The circuit court concluded that Re/Max was not entitled to a commission. The appeals court reversed.

    The appeals court noted that under the contract, a commission was due when a seller “accept[ed] an offer which creates an enforceable contract” for sale of the property. It noted that Ash Park accepted an offer and obtained a specific performance judgment.

    The supreme court is expected to decide whether the offer to purchase vacant land was an enforceable contract that requires Ash Park to pay the 6 percent commission on the accepted offer, even though the buyer lacked the funds to purchase the land.

    The case is Ash Park v. Alexander & Bishop. Below find short summaries of the other nine cases that the court has accepted for review. The court denied review of 76 cases.

    State v. Weissinger

    The case examines whether it is a due process violation for the state to discard a blood sample that shows the unlawful presence of intoxicants before the defendant receives notice of the results of the blood testing. The blood test detected THC.

    A state appeals court upheld the defendant’s conviction for causing great bodily harm by intoxicated use of a motor vehicle, concluding there was no due process violation. 

    State v. Luedtke

    Although the factual background is different, this case raises the same destruction of evidence issue as State v. Weissinger. The defendant-driver rear-ended another car, and later tested positive for cocaine, valium and other illegal substances.

    The state crime lab destroyed the results of the test before he received notice of the results and before he could have it independently tested. The defendant wanted a new trial on due process grounds, but the circuit and appeals courts rejected his claims.

    The Journal Times v. Racine Bd. Of Police and Fire Commissioners

    A Racine newspaper requested the record of motions and votes from a meeting of the Racine Board of Police and Fire Commissioners (PFC). The request was denied.

    After the newspaper filed a mandamus action to compel disclosure under Wisconsin’s open records law, the PFC provided information about the votes and motions to the newspaper via email, but said the meeting did not capture a written record.

    The PFC argued that it did not violate the open records law because no records existed. The circuit court agreed, but the appeals court reversed. The newspaper says the open records and open meetings laws required the PFC to create a record and disclose it.

    State v. Chamblis

    The case examines issues related to the state’s appeal of a sentence imposed on a repeat drunk driver. Based on information that the defendant was convicted of two OWIs in Illinois, he was charged with OWI as a seventh, eighth, or ninth offense.

    The defendant argued that the OWIs from Illinois should not be counted because the supplemental documentation submitted by the state was untimely and insufficient to prove that was actually convicted of OWI-related offenses in Illinois.

    The circuit court agreed. He was convicted and sentenced on a sixth offense OWI. The appeals court reversed, ordering a conviction and sentencing on seventh offense.

    The supreme court may decide whether the state could appeal the sentence under these circumstances, and whether the appeals court could remand for resentencing based on an additional prior conviction after a plea was entered.

    MS Real Estate Holdings LLC v. Donald P. Fox Family Trust

    This real estate case examines issues related to the proper legal rules that apply to a right of first refusal. A family trust extended a right of first refusal to lease or purchase farmland to a dairy company, but terminated the contract 15 years later.

    The circuit court ruled that, based on the consideration paid, 15 years was a reasonable time before the contract was terminable at will. The dairy company argues that the “unilateral termination rule” doesn’t apply to future contingent interests in real estate.

    State v. Guarnero

    The central issue in this appeal is whether circuit court improperly used a prior federal guilty plea and conviction under the Racketeer Influenced and Corrupt Organizations Act (RICO) to count as a prior offense to possession of a controlled substance.

    A state appeals court ruled the RICO conviction counted for purposes of determining whether the defendant was a repeat drug offender.

    State v. Hogan

    This case examines whether evidence that led to the conviction of Patrick Hogan on charges of possession of methamphetamine and child neglect should have been suppressed because of the way police obtained the evidence during a traffic stop.

    Mayhugh v. State

    This civil suit examines the relationship between the doctrine of sovereign immunity and a state statute that says the corrections department “may sue and be sued.”

    An inmate was watching a softball game in the prison recreation yard when a foul ball him in the head, causing serious injury. He sued the department for damages.

    State v. Obriecht

    This case examines how sentence credit is to be applied when a defendant has been re-incarcerated following the revocation of his or her parole.

    Summaries derived from full summaries generated by Wisconsin Court System staff



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