Claim of Preclusion

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WI Court of Appeals – District IV

Case Name: DSG Evergreen Family Limited Partnership v. Town of Perry

Case No.: 2017AP2352

Officials: Sherman, Blanchard and Fitzpatrick, JJ.

Focus: Claim of Preclusion

DSG Evergreen Family Limited Partnership appeals from an order of the Dane County Circuit Court dismissing DSG’s claims against the Town of Perry. This case arises out of a partial taking of, and monetary compensation for, DSG’s real estate by the Town, which was affirmed by this court. DSG Evergreen Family Ltd. Partnership v. Town of Perry, No. 2011AP492, unpublished slip op. (WI App Dec. 6, 2012) [hereinafter DSG I].

In this lawsuit, DSG makes two claims against the Town. First, DSG seeks a declaratory judgment that the Town was required to build the new field road so that it met statutory standards set forth in WIS. STAT. § 82.50 (2015- 16) or, alternatively, to the standards in a Town ordinance. Second, DSG claims that the Town violated its obligation to construct the new field road for DSG set forth in the condemnation petition because the new field road did not meet the construction standards of DSG’s previous field road.

The circuit court granted summary judgment in favor of the Town and dismissed DSG’s claims. The court concluded that neither WIS. STAT. § 82.50 nor the Town’s ordinances create a private right of action. The circuit court also determined that DSG’s claim that the Town failed to meet its obligation under the condemnation petition was barred pursuant to the doctrine of claim preclusion. We conclude that neither § 82.50 nor the Town’s ordinances provide a private right of action in favor of DSG in these circumstances, and the doctrine of claim preclusion bars DSG’s second cause of action. We therefore affirm.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.