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COURT OF APPEALS DECISION DATED AND RELEASED August 31, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1225-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
H. JAMES OBERG
and PATRICIA E. OBERG,
Plaintiffs-Appellants,
v.
DONALD W. HELGESEN
and JOAN H. HELGESEN,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Rock County:
JOHN H. LUSSOW, Judge. Reversed
and cause remanded with directions.
Before Gartzke, P.J.,
Dykman and Vergeront, JJ.
PER
CURIAM. H. James Oberg and Patricia E. Oberg appeal from a
judgment which dismissed their complaint seeking rescission of a land contract,
reformed the contract to include additional land, and granted strict
foreclosure on the contract. We
conclude that the contract may not be reformed. We therefore reverse.
The Obergs filed their
complaint in July 1994, alleging as follows.
In October 1990 they executed a land contract with Donald W. Helgesen
and Joan H. Helgesen to purchase approximately 295 acres of land in Rock
County. A parcel of 1.55 acres was
excluded from the terms of the contract.
Under Rock County ordinances, no lot of less than fifteen acres may be
divided or created without county approval.
Because the 1.55-acre parcel cannot lawfully be created, the Helgesens
executed an unlawful contract and cannot comply with its terms. The Obergs sought rescission of the contract
and return of monies paid.
The Helgesens' amended
answer admitted most of the allegations in the complaint. It further stated that the 1.55-acre parcel
"has been unconditionally tendered to [the Obergs] and, therefore, the
legal description contained in the Contract is proper and lawful." The Helgesens also counterclaimed for strict
foreclosure on the contract because the Obergs were in default on their
payments.
The Helgesens moved for
summary judgment. The trial court
concluded the facts were undisputed, and held that the Helgesens' unconditional
tender of the 1.55-acre parcel "cured any illegality if any existed." The court characterized the parcel as
"a cloud on vendors' title or an encumbrance on the property." The court relied on Wiegman v.
Alexander, 4 Wis.2d 118, 127, 90 N.W.2d 273, 279 (1958), for the
proposition that the vendor need not clear its title until it is required to
deliver a warranty deed. The court held
that by tendering the 1.55-acre parcel, the Helgesens had timely cured the
defect in their title. On this
reasoning, the court concluded that "reformation of the contract to
include the 1.55-acre ... tract is appropriate and equitable."
The Obergs argue on
appeal that while the court may reform a contract to conform it to the parties'
intent, it may not create a new contract to which the parties did not
agree. See Meyer v.
Norgaard, 160 Wis.2d 794, 802, 467 N.W.2d 141, 144 (Ct. App. 1991)
(written agreement may be reformed if based on mutual mistake or the mistake of
one party and the fraud of the other).
Here, they argue, the court has added to the contract the 1.55-acre
parcel which the parties specifically agreed not to include in the
contract.
The Helgesens argue that
the court properly reformed the contract because this is a case of mutual
mistake. They argue that "it is
clear" that the parties intended to include the 1.55-acre parcel in the
sale eventually, and that the Obergs admitted as much in their affidavits. The Helgesens do not provide a record
citation for this assertion.[1] Our review of the affidavits does not
disclose such an admission.
Furthermore, even if the parties did intend to agree to a sale of the
1.55-acre parcel at some future date, no agreement to sell existed at the time
the contract before us was executed.
Therefore, we reject the argument.
The contract cannot be reformed.[2]
The trial court's order
rejected the Obergs' claim for rescission, but did not discuss any reason for
doing so, apparently because the court concluded reformation was more
equitable. On remand, the trial court
should address the merits of the Obergs' claim.[3] We express no opinion as to whether
rescission should be granted or, if it is, as to the appropriate terms. We express no opinion as to the equities in
this case. We hold only that the contract
may not be reformed in the manner done here.
By the Court.—Judgment
reversed and cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] In fact, the Helgesens provide no record citations whatsoever, contrary to Rule 809.19(1)(d) and (e), Stats.
[2] The Helgesens also argue that the land contract is legal. However, the trial court did not decide this issue, and it appears the issue was not thoroughly argued before that court. We decline to address it for the first time here. Similarly, we do not address the Helgesens' argument that even if illegal, a contract is merely voidable, not void, and this contract should not be voided.