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Claim Preclusion

WI Supreme Court

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

Case No.: 2020 WI 23

Focus: Claim Preclusion

The Town of Perry (the “Town”) acquired a portion of property belonging to DSG Evergreen Family Limited Partnership (“DSG”) through its power of eminent domain. In exercising that power, the Town committed itself to building a replacement road over part of the acquired property. DSG says the Town failed to build the road to the standards required by either the condemnation petition or Wis. Stat. § 82.50(1) (2017-18), which applies to the construction of town roads. It seeks a declaratory judgment establishing the Town’s road-building obligations or, in the alternative, damages sufficient to allow it to build the promised road. The Town says the claim preclusion doctrine bars DSG from raising its claims in this case. It also says that, in any event, DSG lacks a cognizable claim because the statutes on which it relies do not create a private cause of action.

We conclude that claim preclusion does not bar DSG’s claim that the Town did not build the replacement road to the standards required by the condemnation petition. However, we also conclude that Wis. Stat. § 82.50(1) does not impose obligations on the Town that are susceptible to a declaration of rights, nor does it create a private cause of action by which DSG can recover damages for the alleged failure to construct a proper road. Therefore, we reverse the decision of the court of appeals and remand to the circuit court for further proceedings on this claim.

Reversed and remanded



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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.

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