Civil Procedure — claim preclusion

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Wisconsin Court of Appeals

Civil

Civil Procedure — claim preclusion — forfeiture

This is the third appeal to this court arising from a dispute between homeowners Kathleen Cox and Kimberly Whalen (the “homeowners”) and the Hawk’s Landing Homeowners Association (the “Association”). The dispute involves the homeowners’ efforts to illuminate their backyard sports court with a pole-mounted floodlight, over the Association’s objection. The homeowners appeal a circuit court order (1) declaring that the Association’s denial of the homeowners’ request to install a single-source floodlight in 2006 was valid, and (2) requiring the homeowners to cease using and to remove the single-source floodlight they installed in 2009.

The homeowners argue that the circuit court erred because the Association’s Architectural Control Committee (the committee) approved the single-source floodlight by default and because claim preclusion bars the Association’s defenses in this action.

The Association responds with several arguments in support of the circuit court’s decision, including that: there was no approval by default; the homeowners waived and forfeited their asserted right to install the single-source floodlight based on their theory of approval by default; and claim preclusion does not bar the Association’s defenses.

We conclude that, although the Association fails to show waiver, it has shown that the homeowners forfeited their asserted right to install the single-source floodlight. We also conclude that the homeowners’ claim preclusion argument is not convincing. These conclusions make it unnecessary to address the merits of the homeowners’ approval-by-default theory. We affirm the circuit court’s order. Not recommended for publication in the official reports.

2012AP2822 Cox, et al. v. Hawk’s Landing Homeowners Association Inc.

Dist IV, Dane County, Smith, J., Blanchard, P.J.

Attorneys: For Appellant: Hesslink, Robert M., Jr., Verona; For Respondent: Callan, Laura E., Madison; Amundsen, Jennifer L., Madison; Kelley, Eileen M., Madison