James J. Doubleday v. C. Goeman Properties V LLC

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 24, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP498 Cir. Ct. No. 2021CV173

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

JAMES J. DOUBLEDAY AND
CHRISTINE M. DOUBLEDAY,

PLAINTIFFS-APPELLANTS,

V.

C. GOEMAN PROPERTIES V LLC,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Washington County:
JAMES K. MUEHLBAUER, Judge. Reversed and cause remanded for further
proceedings.

Before Gundrum, P.J., Grogan and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP498

¶1 PER CURIAM. James and Christine Doubleday (the Doubledays),
pro se, appeal an order granting summary judgment in favor of C. Goeman
Properties V LLC (Goeman) in this private zoning enforcement action. We
conclude issue preclusion does not apply because the Doubledays’ claim that
Goeman’s right to a legal nonconforming use has lapsed was not “actually
litigated” previously, resulting in a determination on the merits. Based on
Goeman’s failure to respond to the Doubledays’ appellate arguments, we also
conclude summary judgment was improperly granted on the Doubledays’ other
ordinance claims. Finally, we reject the Doubledays’ assertion that they are
entitled to summary judgment on their claims. We reverse and remand for further
proceedings.

BACKGROUND

¶2 Goeman operates a bar and restaurant on property in close proximity
to the Doubledays’ property. The bar and restaurant held a legal nonconforming
status as the land it sat upon was rezoned residential during the time it operated.
However, the operation closed on September 10, 2017, and did not reopen
officially until more than twelve months had elapsed. During previous
administrative proceedings, Goeman has argued that the property’s status as a
legal nonconforming use did not lapse by operation of law because the twelve-
consecutive-month period of non-use was interrupted by an event held on
May 5, 2018.

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¶3 The Doubledays filed this action in 2021, seeking an injunction for
various town ordinance violations and WIS. STAT. § 60.61(6) (2021-22).1 The
Doubledays eventually moved for summary judgment, at which time their brief
identified three remaining issues: (1) whether Goeman’s legal nonconforming use
had lapsed under the zoning ordinances because the nonconforming use had been
discontinued for twelve consecutive months; (2) whether Goeman had violated
ordinances by parking cars illegally on residential properties; and (3) whether a
roof vent on Goeman’s property was too noisy.

¶4 The circuit court denied the Doubledays’ motion for summary
judgment and granted Goeman summary judgment on all claims. The court
concluded the claim regarding the lapse of Goeman’s nonconforming use had been
previously adjudicated and was therefore barred by claim and issue preclusion. It
concluded all other claims were not ripe.2 The Doubledays now appeal.

DISCUSSION

¶5 We review a grant of summary judgment de novo. Estate of
Paswaters v. American Fam. Mut. Ins. Co., 2004 WI App 233, ¶13, 277 Wis. 2d
549, 692 N.W.2d 299. Summary judgment is appropriate when the moving party

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
The Doubledays’ brief-in-chief argues the circuit court erred in concluding that all
claims except the nonconforming use claim were not ripe. Goeman’s Response brief does not
address the court’s ripeness determination. Accordingly, we deem the argument conceded and
reverse the dismissal of those claims. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp.,
90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (holding that unrefuted arguments are
deemed conceded). For the same reasons, we also conclude Goeman has conceded the
Doubledays’ argument that claim preclusion is inapplicable. The Response brief addresses only
issue preclusion, so we confine our analysis to that issue.

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is entitled to judgment as a matter of law and no genuine issue of material fact
exists. WIS. STAT. § 802.08(2). At the summary judgment stage, all facts and
reasonable inferences from those facts are viewed in the light most favorable to
the nonmoving party. Bohm v. Leiber, 2020 WI App 52, ¶8, 393 Wis. 2d 757,
948 N.W.2d 370.

¶6 On appeal, the parties primarily dispute whether issue preclusion
applies to bar the Doubledays’ action. Issue preclusion addresses the effect of a
prior judgment on the ability to re-litigate an identical issue of law or fact in a
subsequent action. Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶17, 281 Wis. 2d
448, 699 N.W.2d 54. Determining whether issue preclusion applies involves a
two-step analysis: (1) whether issue preclusion can, as a matter of law, be applied;
and if so, (2) whether the application of issue preclusion would be fundamentally
fair. Harborview Off. Ctr., LLC v. Nash, 2011 WI App 109. ¶7, 336 Wis. 2d 161,
804 N.W.2d 829. The determination under the first step presents a question of
law, whereas a determination under the second step is reviewed for an erroneous
exercise of discretion. Mrozek, 281 Wis. 2d 448, ¶15.

¶7 Under the first step, we must determine whether the question of fact
or law at issue was “actually litigated and determined in the prior proceeding by a
valid judgment in a previous action and whether the determination was essential to
the judgment.” Dostal v. Strand, 2023 WI 6, ¶24, 405 Wis. 2d 572, 984 N.W.2d
382. An issue is “actually litigated” when it is properly raised and submitted for
determination, producing a determination on the merits. Id. This inquiry ends our
analysis here; because we conclude the legality of the alleged nonconforming use
was not “actually litigated,” we need not proceed to the second step.

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No. 2022AP498

¶8 To demonstrate that the “actually litigated” factor has been satisfied,
Goeman argues that the issue of the lapse of its nonconforming use was the subject
of two prior circuit court actions.3 Goeman’s summary judgment brief noted that
James Doubleday’s first attempt at advancing the Doubledays’ claims was via a
certiorari action in Washington County Circuit Court case No. 2019CV162, which
was dismissed based upon the court’s determination that the matter was not ripe.
Ripeness is a doctrine of avoidance, designed to keep courts focused on resolving
concrete cases and not abstract or hypothetical disagreements. Papa v. DHS, 2020
WI 66, ¶30, 393 Wis. 2d 1, 946 N.W.2d 17. A dismissal on ripeness grounds does
not satisfy the “actually litigated” requirement as there was, by definition, nothing
to litigate; accordingly, case No. 2019CV162 does not bar the current proceedings.

¶9 Goeman also argues the matter was actually litigated in Washington
County Circuit Court case No. 2019CV485. In that certiorari action,
James Doubleday contested the town board’s determination that the property
owner had successfully avoided a lapse in the property’s status as a legal
nonconforming use by holding a single event during the twelve-month period at
issue.

¶10 Goeman’s summary judgment materials were coy, though, about the
basis upon which Doubleday’s claim was resolved. A review of our decision in
the ensuing appeal illustrates that the merits of the matter were not actually
litigated. Doubleday appealed the town board’s decision to the Town of Hartford
Zoning Board of Appeals. The board of appeals dismissed Doubleday’s appeal as
untimely. The circuit court upheld that determination, as did we. See Doubleday

3
We confine our analysis to court actions, not to arguments presented to town boards.

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No. 2022AP498

v. Town of Hartford, No. 2019AP2375, unpublished op. and order (WI App
Nov. 4, 2020). In doing so, we were careful to note that “[w]hether the Town
Board was correct in making its determination that the March 5, 2018 ‘event’
restarted the twelve-month clock is not before us.” Id., n.3. Because none of the
judicial determinations in No. 2019CV485 addressed the merits of the
Doubledays’ present claim, issue preclusion does not apply.4

¶11 Last, the Doubledays argue they are entitled to summary judgment
on their claim that Goeman’s right to a legal nonconforming use has lapsed.
Based upon our review of the appellate Record, it appears there is a genuine
dispute of material fact as to whether any town ordinances have been violated.
Accordingly, further proceedings are appropriate.

By the Court.—Order reversed and cause remanded for further
proceedings.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

4
Separately, Goeman argues the Doubledays’ present claims have been
“administratively resolved,” and this case is therefore moot. For the foregoing reasons, we
disagree that the twelve-month-lapse issue has been actually litigated and previously resolved.
Moreover, we note that Goeman cites no law in support of this argument. See State v. Pettit, 171
Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

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