Wendell L. Klein v. Town of Trempealeau

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.
March 30, 2021
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. 2019AP1878 Cir. Ct. No. 2019CV37

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

WENDELL L. KLEIN AND CARLTON KLEIN,

PLAINTIFFS-APPELLANTS,

V.

TOWN OF TREMPEALEAU, RICK NEMITZ, DENNIS BORTLE AND
TED KONKEL,

DEFENDANTS-RESPONDENTS.

APPEAL from a judgment of the circuit court for Trempealeau
County: THOMAS W. CLARK, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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. 2019AP1878

¶1 PER CURIAM. Wendell and Carlton Klein appeal a summary
judgment granted in favor of the Town of Trempealeau, the Town chairman, and
two Town supervisors (collectively “the Town”). The Kleins challenge an
ordinance prohibiting “scare guns” used to protect crops on their farming
operation from blackbirds and other predatory creatures. We conclude the Kleins’
claims are barred by the rule against collateral attack, as well as the doctrine of
claim preclusion. We therefore affirm.

BACKGROUND

¶2 Scare guns are automatic propane cannons that fire a loud bang
sound at regular intervals to scare away birds and predators that cause damage to
corn and other cash crops. The Kleins began using scare guns in 1962, when the
area surrounding their farm was almost exclusively used for agriculture. During
the ensuing years, however, individual property owners built houses in the vicinity
and raised complaints that led the Town to promulgate an ordinance in 2013
requiring any person wishing to use a scare gun to obtain a permit regulating its
use. The Kleins then applied for—and apparently obtained—a permit to operate
scare guns on their property. The Kleins were subsequently cited for violating the
ordinance by operating a scare gun at an angle less than forty-five degrees from a
neighboring property line.

¶3 The circuit court denied the Kleins’ motion to dismiss the citations,
and we affirmed on appeal. See Town of Trempealeau v. Klein,
No. 2014AP2719, unpublished slip op. (WI App Aug. 18, 2015). We
concluded: (1) the Kleins had an undisputed right to farm their property, but they
did not have a vested right to employ a particular farming practice such as a scare
gun; (2) the ordinance did not amount to a regulatory taking; (3) the scare gun

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ordinance did not conflict with the “Right To Farm” law; and (4) the scare gun
ordinance was not arbitrary or capricious. Id., ¶¶16, 19, 32, 37.

¶4 A new scare gun ordinance was enacted in 2017, prohibiting all
scare guns within the Town, without exception. The Kleins continued to use their
scare guns, and numerous citations were issued to the Kleins for the continued
violations.

¶5 The Kleins commenced a declaratory judgment action against the
Town while the prosecution of the ordinance violations was pending. The Kleins
again claimed that the scare gun ordinance was an unconstitutional taking; the
ordinance was arbitrary and capricious; the ordinance was preempted by the Right
to Farm law; and they had a vested right to use scare guns. The circuit court found
the ordinance valid and enforceable, and it dismissed the complaint in its entirety.
The Kleins appealed the decision, but they later voluntarily dismissed the appeal
and pleaded guilty to the ordinance violations.

¶6 The Kleins then commenced the present action. They once again
alleged four claims: (1) the ordinance was an unconstitutional taking of property;
(2) the ordinance was arbitrary and capricious; (3) they had a vested right to use
scare guns; and (4) the ordinance violated the Right To Farm law. The Town
sought summary judgment, arguing that the rule against collateral attacks on
judgments required dismissal of the suit and that the matter was barred by the
doctrine of claim preclusion. The circuit court agreed and it granted summary
judgment dismissing the claims. The Kleins now appeal.

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DISCUSSION

¶7 In general, a judgment is binding on the parties and may not be
attacked in a collateral action unless it was procured by fraud. Oneida Cnty. DSS
v. Nichole W., 2007 WI 30, ¶28, 299 Wis. 2d 637, 728 N.W.2d 652. Wisconsin
courts have generally disfavored allowing collateral challenges to judgments
because they disrupt the finality of prior judgments—and thereby tend to
undermine confidence in the integrity of our procedures, and also because they
inevitably delay and impair the orderly administration of justice. Id.

¶8 Here, the Kleins do not attempt to address the rule against collateral
attacks on judgments, despite the fact that the same 2017 ordinance is at issue here
as in the prior declaratory action they filed, and the Kleins previously put forth the
same theories as to why the ordinance is invalid. The Kleins may not use this case
to effectively revive the appeal they voluntarily dismissed in the prior case or to
otherwise collaterally attack the prior judgment. The circuit court correctly
concluded the Kleins’ claims were barred by the rule against collateral attacks.

¶9 We also conclude the Kleins’ claims are barred by the doctrine of
claim preclusion. Whether an action is barred by claim preclusion is a question of
law this court reviews de novo. Teske v. Wilson Mut. Ins. Co., 2019 WI 62, ¶20,
387 Wis. 2d 213, 928 N.W.2d 555. We also review a summary judgment
determination independently. Id., ¶21. Summary judgment is appropriate where
there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Id.

¶10 Three elements are required to bar an action as claim
precluded: (1) identity of the parties or their privies in the prior and present
lawsuits; (2) an identity of the causes of action in the two lawsuits; and (3) a final

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judgment on the merits in a court of competent jurisdiction. Id., ¶25. Claim
preclusion is broader than the rule against collateral attacks because claim
preclusion is not limited to claims that were actually litigated in the prior action—
it also applies to claims that could have been litigated. Menard, Inc. v. Liteway
Lighting Prods., 2005 WI 98, ¶¶26-27, 282 Wis. 2d 582, 698 N.W.2d 738.

¶11 It is undisputed that the first two elements of claim preclusion are
satisfied in this case. The Kleins argue, however, that the dismissal of their claims
in the prior lawsuit was not a judgment on the merits. They claim the prior case
was dismissed because their former attorney failed to develop a record in
opposition to summary judgment. Thus, despite this case being the third civil
lawsuit between the parties regarding an ordinance banning the use of scare guns,
the Kleins argue they never received their proverbial day in court.

¶12 Regarding the merits, the Kleins fail to appreciate the circuit court’s
lengthy decision in the prior matter. The court determined that the scare gun
ordinance did not constitute a regulatory taking because the Kleins were still able
to use their property for numerous purposes. It also concluded the ordinance was
not arbitrary and capricious because the Town had validly set forth its purpose,
authority and findings that scare guns are harmful to the public’s health, safety,
and welfare. The court further concluded the Kleins did not have a vested right to
use scare guns because the 2017 ordinance was not a zoning ordinance. The court
also held that the Right to Farm law did not prohibit the ordinance because that
law was only applicable in an action where there is a legal claim of nuisance
against the farm operation, which was not alleged in the present matter.

¶13 The dismissal of the Kleins’ prior lawsuit was, therefore, based on
substantive grounds. Moreover, the circuit court explicitly stated that the Kleins’

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claims were dismissed “on the merits.” There is no basis for the argument that the
prior lawsuit was dismissed on procedural grounds.1

¶14 Nevertheless, the Kleins argue, for the first time in their reply brief,
that an “extraordinary reason” warrants a limited exception to the claim preclusion
doctrine because the Kleins “are the only citizens targeted and affected by the
Ordinance,” as they are the only farmers who use scare guns in the town. Thus,
“they are the only parties with standing to challenge the constitutionality of the
Ordinance.” The Kleins contend, “Unless the rare exception is found in this case,
a potentially unconstitutional Ordinance may stay in place and chill the activities
of future farmers to use scare guns to protect their crops in order to make his or
her family farm viable.”

¶15 We conclude, however, that the proposed exception would swallow
the rule of claim preclusion. While the Kleins express dissatisfaction with their
former attorney as part of their argument—which may provide a basis for a legal
malpractice claim—that dissatisfaction does not provide a basis for them to
relitigate their claims against the Town. Contrary to the Kleins’ arguments, the
elements of claim preclusion are met here: the Kleins filed this action despite the
same claims having previously been dismissed against the same parties, on the

1
The Town argues that the dismissal of the prior lawsuit “would have been ‘on the
merits’ for purposes of claim preclusion even if it had been based on ‘procedural grounds.’” The
Town contends, “Even a default judgment is a judgment ‘on the merits’ for purposes of claim
preclusion, despite being purely procedural in nature.” In support of this argument, the Town
cites Menard, Inc. v. Liteway Lighting Products, 2005 WI 98, ¶¶28-29, 282 Wis. 2d 582, 698
N.W.2d 738. Because we conclude the dismissal of the Kleins’ prior lawsuit was based on
substantive grounds, we need not address this argument. See State v. Castillo, 213 Wis. 2d 488,
492, 570 N.W.2d 44 (1997).

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merits, and by the same court. As such, the circuit court properly granted
summary judgment dismissing the present case.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2019-20).

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