COURT OF APPEALS DECISION DATED AND FILED January 12, 2011 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT II |
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Brook Brown and Elizabeth Brown,
Plaintiffs-Respondents, v. Cassie Wisth,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 REILLY, J.[1] Cassie Wisth appeals from a judgment of the circuit court awarding $2411.21 to Brook and Elizabeth Brown for breach of a lease and property damage. Wisth argues that a previous judgment against her former co-tenant barred the court from awarding a judgment against her. The issue in this appeal is whether the doctrine of claim preclusion applies. As we find that claim preclusion does not apply, we affirm the circuit court’s judgment.
FACTUAL BACKGROUND
¶2 Wisth and Justin Neumeier leased a residence from the Browns
in August of 2008. Ten months later, Wisth
and Neumeier were evicted. Following the
judgment for eviction, the Browns filed separate complaints against Neumeier
and Wisth for the breach of their lease agreement and property damage. Neumeier defaulted and a judgment was entered
against him on August 28, 2009, for $1953.62.
Wisth defended against the claim, but the circuit court entered judgment
against her for $2411.21. The circuit
court entered the judgment “joint and severally with Justin Neumeier.” The court also amended Neumeier’s judgment to
$2411.21 and made it “joint and severally with Cassie Wisth.”
¶3 Wisth argued before the circuit court that the doctrine of claim preclusion prevented the damages action against her as the Browns already received a judgment against Neumeier for damages. The circuit court concluded that claim preclusion did not apply because it would be unfair to deny the Browns their day in court against Wisth.
¶4 Wisth renews her claim preclusion argument before this court. Whether claim preclusion applies to an
undisputed set of facts is a question of law that this court reviews de novo. Amber J.F. v. Richard B., 205
¶5 The doctrine of claim preclusion states that “a final
judgment is conclusive in all subsequent actions between the same parties [or
their privies] as to all matters which were litigated or which might have been
litigated in the former proceedings.” Pasko
v. City of Milwaukee, 2002 WI 33, ¶14, 252
¶6 For a litigant to succeed on a claim preclusion argument,
three factors must be present: “(1) an
identity between the parties or their privies in the prior and present suits;
(2) an identity between the causes of action in the two suits; and, (3) a final
judgment on the merits in a court of competent jurisdiction.” Northern States Power Co. v. Bugher,
189
¶7 Wisth argues that because she and Neumeier both signed the
lease, they are in privity such that the judgment against Neumeier precludes
the Browns from suing Wisth for the same claim.
“Privity exists when a person is so identified in interest with a party
to former litigation that he or she represents precisely the same legal right
in respect to the subject matter involved.”
Pasko, 252
¶8 While Wisth and Neumeier both signed the lease, they are not
in privity. Neumeier defaulted in the
Browns’ lawsuit against him; he clearly did not represent the interests of
Wisth. Furthermore, the original judgment
entered against Wisth was greater than the judgment entered against
Neumeier. As Wisth and Neumeier do not
share an identity of interests, claim preclusion does not apply.
¶9 The Browns had the right to seek recovery for the damages they suffered. The Browns also had the right to seek recovery from Wisth individually, Neumeier individually, or to seek damages from both, so long as they only recover once for their damages. The circuit court properly entered judgment “joint and severally” against Wisth and Neumeier. The Browns may now collect their damages from Wisth or Neumeier, but not for more than their total damages of $2411.21.
CONCLUSION
¶10 The circuit court properly entered judgment “joint and severally” against Wisth and Neumeier. Considerations of judicial efficiency were not offended by the separate actions filed by the Browns. The judgment of the circuit court is affirmed.
By the Court.—Judgment affirmed.
This opinion will not be published. See
Wis. Stat. Rule
809. 23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(a) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.