*1 Plaintiff-Appellant,† A. Lawrence Kruckenberg, v. Defendant-Respondent. Paul S. Harvey, of Appeals Court No. Submitted 03-1813. March 2004. Decided briefs 5,May App 2004 WI (Also 844.) reported in 685 N.W.2d granted † Petition to review 9-16-04.

Nettesheim, J., part concurrs and dissents in part. On behalf of the plaintiff-appellant, the cause was submitted on the briefs oí William H. Gergen Gergen, Pretto, Gergen & S.C. of Beaver Dam.

On behalf of the defendant-respondent, cause was submitted on the brief Jim D. Scott of Wood Law Offices, LLC of Oxford. Nettesheim Brown,

Before JJ. Snyder, BROWN, J. This case is a dispute over a line and property of lateral duty support soil as between adjoining owners. Lawrence A. Kruckenberg argues that the trial court erred in apply- *5 ing his claim for a to the doctrines respect property declaratory judgment to the with lack of lateral to his claim of and issue support. Paul S. 1982 action between hold that a We Czyzewski, Harvey the individual from Donald A. and bought property, precludes Kruckenberg whom Kruckenberg's present affirm the action. We therefore summary judgment grant in favor trial court's denying Harvey motion for order and its reconsideration. drainage Harvey

¶ a ditch 1982, In excavated 2. along border of his to be the northern he assumed what Czyze- adjoined Czyzewski's property. property, which alleging excavation "caused suit, filed that the wski collapse" plaintiff and defendant to line fence between Harvey's duty a breach of excavation was and that the complaint al- further line fence." The to "maintain a leged Harvey's duty for the excavation breached that Czyzewski's support, the water level lowered lateral property erosion. and caused by stipula- dispute parties a The resolved 3. damages agreed pay Harvey to and $1500

tion. along drainage rye grass plant ditch. The agreed "on be dismissed that the action would further stipula- acknowledged The circuit court merits." its grass Harvey plant rye "when the tion, ordered permits" matter "on its and dismissed weather April 1983. merits" knowledge Kruckenberg, of the law- without Czyzewski, purchased the

suit between shortly In the lawsuit settled. after Harvey, stating against complaint filed (2) (1) trespass conversion, of action three causes judgment respect declaratory of the to the location with (3) support. provide lateral line, and failure lot Kruckenberg alleged according survey to a he had Harvey's property. commissioned, ditch was on his In *6 Harvey including answer, his defenses, raised several preclusion, the doctrines of claim and issue filed possession, seeking counterclaim for adverse to relocate comported the lot line so that it with fence line and asking enjoin Kruckenberg trespass- the court to from ing property. Kruckenberg summary on his moved for judgment.

¶ 5. The circuit court did not reach the substance Kruckenberg's summary judgment Instead, motion. Czyzewski the court found that case barred Kruckenberg's declaratory judgment regard- claims for ing provide support. the lot line and failure to lateral The court found that the to the case acknowledged that the fence line was the line of demar- cation between the lots and thus that the doctrine of preclusion Kruckenberg's declaratory barred judgment trespass action and mooted the and conver- preclusion sion claims. The court extended its claim ruling Harvey's possession. counterclaim for adverse sup- The court further found that the issue of lateral port litigated inwas fact resolved the 1982 occurring lawsuit, if the even erosion was for a different today reason than it had in 1982, been and therefore preclusion the doctrine issue barred support. Accordingly, action for lateral granted summary court, the circuit motion, on its own judgment preclusion in favor of based on claim preclusion. and issue The circuit court held an addi- hearing again tional on reconsideration and found in Harvey. Kruckenberg appeals. favor of summary judgment ¶ 6. A motion for will be granted pleadings, depositions, "if the answers to inter- together rogatories, file, with the and admissions genuine any, affidavits, if show that there is no issue as moving party any is material fact and that judgment a matter of law." Wis. Stat. entitled to a as 802.08(2) (2001-02).1 § court's Our review of circuit summary judgment grant based on claim or issue preclusion v. de novo. See Northern States Power Co. (1995). Bugher, 541, 2d 189 Wis. 525 N.W.2d 7. We will first address what we understand Kruckenberg's arguments concerning the circuit request for of claim to his court's judgment declaratory respect Then, to the lot line. with Kruckenberg's challenge turn to to the circuit we will application of to his claim for court's issue *7 support. lack of lateral preclusion, judgment

¶ in a final 8. Under upon parties in that matter is conclusive an earlier privity parties, and in those earlier matter those with governs judgment all that were and the final issues might litigated. litigated Jensen v. either or have been 231, 235, 2d 554 Co., Mut. Ins. 204 Wis. Milwaukee 1996). (Ct. following App. The factors must N.W.2d232 present preclusion an action before for claim to bar "(1) identity parties or their an between the the court: privies (2) identity present suits; an in the (3) suits; and, in a the causes of action the two between competent judgment in on the merits a court of final jurisdiction." Co., 2d at States Power 189 Wis. Northern requirements are sat- However, 551. even where these preclu- or isfied, the ultimate of claim issue 1 Statutes are to the All references to the Wisconsin noted. 2001-02 version unless otherwise 431 satisfy must also the additional factor of fairness. sion App ¶ Luecht, 56, 28, v. 2000 WI 233 Wis. 2d See Steffen 713. 608 N.W.2d Kruckenberg appear dispute does not that 9. he a in interest to to the because is successor property subject prior litiga of the same identity tion, the factor—the first claim factor—is satisfied. See Restatement (second) (1982) ("A § judgment Judgments 43 in an action that personal property. in real or . determines interests . respect [w]ith to the involved in the action . . . preclusive upon person [h]as effects who succeeds to party upon the interest of a to the same extent as himself."); Kresge party see also S.S. Co. v. Garrick (1932) Realty Co., 305, 310-11, Wis. N.W. (adjudication party using party that one was not wall judicata binding party's held res title). successor in Rather, essence, distilled to its regarding brief consists of the several claims the second and third claim factors. We address and reject each of these claims seriatim. First, that the cir- maintains concluding stipulation

cuit court erred that the 1982 proper and order concerned the location of the lot line identity and therefore that had preclusion an established claims, the second claim factor. He seems really to assert that the issue was never before the court parties simply "acquiesced" in 1982 and that the to the *8 property idea that the fence on the was without actually arguing appears it. He about to claim that for really issue, the location of the lot line to been at have Czyzewski posses- would have had to assert an adverse Harvey's sion claim on behalf and then concede that question. Kruckenberg in owned the apparently posses- then maintains that since adverse

432 ripe in 1982, sion was not could not have according Kruckenberg, Thus, raised the issue. premature whole of lot line location in issue 1982 proper subject joined and not a that could have been at that time. argue sum, In seems to that argued

the issue of the lot line location was never nor argued preclu- it could have been and therefore claim apply. Kruckenberg sion does not misunderstands doctrine claim the nature of the previous action. Kruckenberg's argument premised

¶ 12. on the satisfy preclu- in notion that order to the second claim identity sion factor—the of claims—the in the previous only recognized action have not must actually disputed issue, lot line anwas but also proper location of the lot line. That is not the law. The sought litigated present in the action need actually litigated not have been long in the action as litigated in as it could have been that action. Co., 306, DePratt v. West Bend Mut. Ins. 113 Wis. 2d (1983). Further, 334 883 a transac- N.W.2d we use analysis a matter tional to determine whether could litigated proceeding. have been the former Parks v. City Madison, 730, 735, 2d Wis. N.W.2d365 (Ct. 1992). arising App. analysis, Under this all claims are out of the same transaction or factual situation litigated single treated as a cause of action and must be together. arising Id. A claim out of the same transaction though party is barred even the second action is prepared different evidence or theories of the case with or intends to seek another form of relief. Id. Accord- ingly, apply, preclusion to

for the doctrine of claim proponent parties explicitly need not establish that the *9 actually

acknowledged or the existence of the issue litigation; prior disputed rather, the in the the issue only proponent the claim arises demonstrate that need it could have situation and that the same factual from litigated. been

¶ characteriza- 13. We now turn Although Czyzewski's action. tion of the nature specifi- did not correct that is properties, challenge boundary cally the between the an location of the lot line was not assertion that the his wrong. simply in action is issue the 1982 Czyzewski alleged, alia, that inter duty The to maintain a "line fence." had breached his correctly noted that the term court in this case circuit legal to describe a fence "line fence" is a term of art used e.g., running along property See, Olson, line. v. Hoff (1898) ("The 122, fence 101 Wis. 76 N.W. alleged parties, question to be on the line between is regular partition fence. In the absence of and is a allegation legal fence, of a line

as to a division ownership presumption that it is the common as to is owners."). adjoining Thus, as the circuit of the recognized, Czyzewski's support action for lateral court prove required him to would have establish of his claim. of the lot line as an element demarcation though parties ultimately settled the case Even (which implicitly concedes that the demarcation at least between those the lot line had been resolved as parties), remains that the location of the lot the fact and, result, in the case as a was an element joined. issue could have been Kruckenberg's theory relief, Czyzewski's a de- 15. While claratory judgment action, different than support, underlying action for lack of lateral issue *10 this case—the location of the lot line—was an element to proven in the 1982 case. Because the location of the proven lot line anwas element to be in the case, parties position litigate they in were a to the issue had chosen to do so. As we earlier, discussed this all is that is satisfy identity requirement. needed to of We, claims reject Kruckenberg's challenge therefore, first to the preclusion. of the doctrine of claim Kruckenberg 16. Second, that, claims even as- suming wrong that he is about his contention that the lot line issue not was before the court in 1982, he claims by parties, it was based on a mistake of fact both Czyzewski, particular. acquiescence in Therefore, the to the location of the lot line cannot inure to his detri- argument implies ment. This recognized exception that mistake of fact is a preclusion. Kruckenberg

to claim provide any authority support does not argument in of this any.

and we cannot find Indeed, the Restate- suggests Judgments otherwise. See (Second) ment of (1982) ("A § judg- Judgments (Second) Restatement ment in an action that determines interests in real or personal property. [conclusively . . determines the regarding claims of the to the action their interests."). Kruckenberg's argument fails. Kruckenberg expands Third, on his use of "acquiescence" by contending the word that the circuit grant summary judgment court's to was, reality, preclusion legal not a claim decision, a but Kruckenberg "acquiesced" decision that himself had to by this line his inaction. In vein, this Kruckenberg attempting put words the circuit court's mouth. The circuit court never entertained such ground. theory, on that the case much less decided Harvey's really happened answer is that

What pre- Kruckenberg's complaint claim was bottomed exactly grounds preclusion that is and issue clusion previously on. As we court ruled the circuit what correctly that found court discussed, the circuit been and had line was at issue the lot location of applied claim and therefore in the 1982 case decided again, preclusion action. Once Kruckenberg's argument fail. must Finally, the third invokes

¶ 18. briefly argues claim factor apply the 1982 lawsuit because cannot doing by stipulation. he relies on a so, In resolved *11 chiefly Bishop 120, 51 N.W. McGillis, 82 Wis. v. cases, (1892), proposition a dismissal based for the 1075 preclu satisfy stipulation the third claim not does on a judgment requiring the merits." "final on a factor sion applies the dismissal where However, this line of cases Mayer, e.g., Mayer See, 29 Wis. v. merits. not on the (dismissal (1966) of 111 505-06, 139 N.W.2d 497, 2d not bar proceedings of executors would for removal seeking petition by removal, their new issues raised pass purport to on did not of the order dismissal since original petition). it Furthermore, is well of merits ap parties stipulation between that a established by for a final proved the basis can form the court Trucking Co., judgment. e.g., Inc. v. See, Lakes Great (Ct. App. 65 162, 168-69, 2d 477 N.W.2d Black, 165 Wis. 1991); 401-03, 39 Riemer, 255 Wis. v. Werner (1949). N.W.2d parties suit, the resolved Here, the 19. including agree- disputed them, between issues

all the ing damages appropriate remedy. to and an The specifically agreed to a dismissal of the action on its parties’ stipulation merits. The was then to an reduced dismissing order the action "on its merits." Such an subsequent conclusive, order is in a action the between parties, litigated same as to all matters which were or might litigated proceed- which have been in the former ings. Werner, See 255 Wis. result, at 401-03. As a Kruckenberg, Czyzewski, a successor interest precluded by upon the dismissal the merits of the 1982 relitigating action from the lot line issue. previously, As we indicated even the when requirements

threshold for claim are satis- fied we still must determine whether the of Kruckenberg. the doctrine is fair to We conclude that it Clearly, Czyzewski required is. would have been gone establish the lot had the matter to trial. Presumably, required supply he would have been survey establishing Harvey the lot line unless conceded proven fact. the But whether the fact towas or findings conceded, fact, of conclusions of law and judgment finding would have reflected a fact con- cerning By settling lot line. matter Czyzewski functionally litigated merits, question purpose of the location the lot line. The prevent repetitive of claim doctrine is to *12 litigation. DePratt, Wis. 113 2d at 311. to the Fairness judicial require defendant and sound administration point litigation particular that at some over the contro- versy Harvey must come to an end. Id. that Given has already subjected litigation been to that for all intents purposes issue, resolved are the we satisfied that purposes of claim and the considerations

437 of claim pre- by application are served of fairness Kruckenberg's to claims.2 clusion arguments turn to 21. We now preclu- of issue the trial court's regarding lateral Krucken- support. claim for lack of sion to his support that the lateral directly dispute not berg does of the 1982 purview within the issue squarely was argues Harvey both that Instead, Kruckenberg lawsuit. in grass rye to maintain continuing duty is under a and that recent erosion he has not done so area and him relitigate a to injury constitutes new permitting issue. support the lateral there though even applies Issue preclusion in later the earlier and parties"

is not an "identity or fact" for which long so as "issue law matters sought actually litigated "has been effect is preclusive to judgment." in a action and reduced and decided impose argues that it is not fair The dissent not Kruckenberg the lot was preclusion on because it. dispute in 1982. We have different view of very dividing the two Harvey dispute had a over that same soil twenty years Obviously, Czyzewski did properties ago. not over tending adjoining Now, his. Harvey property like how was Harvey later, does like is twenty Kruckenberg not how years adjoining property. attacking But is tending to the theory theory being law—the Harvey based a different theory dispute. That same was property that he owns Czyzewski did Czyzewski in the suit. That not available to complacent to order a property know he owned the or was too is survey inconsequential. The fact of the matter to a his use of the once subject lawsuit about subject he not to a lawsuit already. The law demands that Harvey. For these again. To rule otherwise would be unfair reasons, disagree agree and instead with the we with the dissent trial court. *13 complaint,

Jensen, 204 Wis. 2d at 235. In the 1982 Czyzewski Harvey's claimed that excavation breached "duty support." duty provide his of lateral The to lateral support ongoing. Mann, See Christensen v. 187 Wis. (1925). recognition 575-76, N.W. In of that Czyzewski Harvey dispute by law, resolved their requiring Harvey rye plant grass one time "when the permits." complied stipula weather with that Obviously, Czyzewski gambling tion. that the planting rye grass completely of the would resolve the problem. That it did not would not have entitled Czyzewski bring regarding a new action the erosion. already support The issue of lack of had decided been dismissing to a reduced written order the case on already merits, noted, which as we have stands as a adjudication final of the issue. Issue simi larly Kruckenberg. Further, binds we fail see how of the doctrine issue under principles these circumstances would violate Accordingly, fundamental fairness. we hold that properly applied preclu trial court the doctrine of issue Kruckenberg's support sion to lack of lateral claim. By Judgment and order affirmed. Court.— (concurring part; NETTESHEIM, J. dis- senting part). Although neither nor Har- vey any knowledge suspicion had or that the fence line properties represent between their two did not true majority opinion line, lot holds the settlement Czyzewski’sprior against Harvey for failure to provide precludes support lateral present declaratory trespass judg- for action and for respectfully ment as to the location of the lot line. I holding. dissent from that although supreme court has said that 24. Our *14 preclusion underlying purposes are claim and issue

the blindly apply important, doctrine. do not the the courts Corp., Owens-Corning Fiberglass Sopha 230 Wis. 2d v. (1999).1 law "Wisconsin does 212, 235, 601 N.W.2d627 preclusion] [claim/issue as an ironclad rule not treat implacably applied whenever its literal which must requirements countervailing regardless any of met, are omitted). (citation judgment, my In Id. considerations." rigid appli unduly majority opinion represents an the preclusion. I would hold that the cation of claim or issue application against Kruckenberg does of the doctrine inquiry. pass Precision of the See not the fairness test Isley Erecting, 224 Bank, & Wis. Inc. v. M&I Marshall (Ct. 1998). App. 288, 5 304, 2d 592 N.W.2d against Harvey Czyzewski's complaint ¶ 25. support, challenge lateral not a the action was for Similarly, Harvey's of lot line. de- of the location the dispute the of the action did not location lot fense the agreement parties as to line. the came an how When provide support, parties the com- lateral could mendably action short of trial. settled the upon

¶ factors that bears fairness 26. One setting in a or issue determination claim quality significant are differences in the whether there proceedings. Teriaca v. or of the two extensiveness Employees' Sys., App 145, Ret. 2003 WI Milwaukee Here, 2d 13, 829, 667 N.W.2d two 265 Wis. markedly proceedings former was were different. The support in of the action lateral which location an for quality dispute. nature, Thus, never in lot was Owens-Corning Fiberglass Corp., 1 In 230 Wis. 2d Sopha v. (1999), addressing court supreme N.W.2d However, apply in preclusion. principles the same would setting. an issue prior proceeding

and extensiveness of the did not ad- any meaningful way. dress the location of the lot line in However, in the action, instant the location of the lot dispute. line is the core unspoken, message 27. The actual, but of the

majority opinion is that should have taken litigate the case to trial to the location of the lot line though even dispute that matter was not in and even though only had settled the matter dispute. majority opinion produces Thus, the a mock party trial over a nonissue that neither desired, to- gether expenditure with the related time, effort and money. *15 bearing upon 28. Another of the factors a fair preclusion

ness determination in a claim or issue set ting public policy is whether there are matters of individual circumstances involved such that it would fundamentally render the of the doctrine including party against pre unfair, whether the whom sought adequate opportunity clusion is had an or incen adjudication tive to obtain a full and fair in the initial majority opinion action. Id. Reduced essence, to its penalizes Czyzewski's for decision to settle the However, case. law favors settlement over litigation. great full-blown "Wisconsin courts look with upon litigation." favor settlements of Radlein v. Indus. Co., Fire & Cas. Ins. 605, 622, 117 Wis. 2d 345 N.W.2d (1984). majority's unforgiving application The preclusion against claim or issue strikes a blow this policy. Harvey agreed provide sound Once lateral support Czyzewski's property producing a settlement any of the lawsuit, neither nor had litigation incentive to continue the over a matter not dispute. policy favoring public

¶ settle- Wisconsin's under which and the individual circumstances ments it unfair action settled tell me that the apply against Kruckenberg or

claim issue majority opinion, litigants Under the must this case. wary settlement, lest an uncontested issue now litigated might have come back to could been respectfully I dissent.2 haunt.

2 However, fully agree majority's application I with support. lateral as to claim for