Background
This case marks the third time Buddy and Janel Savich have appeared before the Wisconsin Court of Appeals regarding a cell tower constructed by Tillman Infrastructure, LLC on their neighbors’ (the McNicols’) property. The Saviches previously challenged the county permit for the tower in a certiorari action. After two prior appeals (Savich I and Savich II), the court system ultimately affirmed the permit’s validity.
While the second appeal was still pending, the Saviches filed a new, separate lawsuit seeking monetary damages. This suit targeted Tillman, the McNicols, and a Tillman agent, Michael Bieniek. The complaint alleged four causes of action: fraud in the permit application, anticipated private nuisance from the future operation of the tower, civil conspiracy to deny their right to appeal the permit, and harassment through litigation tactics.
The circuit court dismissed the Saviches’ lawsuit, agreeing with the defendants that the claims were barred by the doctrine of claim preclusion because the matter had already been litigated in the certiorari action. The Saviches appealed this dismissal.
The Court’s Holding
The Court of Appeals affirmed the dismissal of the Saviches’ complaint, but on different grounds than the circuit court. The appellate court first held that the circuit court erred by applying claim preclusion. It reasoned that the Saviches’ prior certiorari action did not preclude their current suit for damages because monetary damages are not a remedy available in a certiorari proceeding. A certiorari review is strictly limited to affirming, reversing, or remanding an agency’s decision. Since the Saviches could not have obtained damages in the first action, they were not barred from seeking them in a second, separate action. The court likewise found issue preclusion did not apply.
However, the court affirmed the dismissal on the alternative ground that the complaint failed to state a claim upon which relief could be granted. The court analyzed each of the Saviches’ four counts and found them all legally deficient. The fraud claim failed because the Saviches did not allege they believed or relied on the defendants’ false statements; to the contrary, they alleged they knew the statements were false. The anticipated private nuisance claim failed because that cause of action allows only for an injunction to stop a future nuisance, not for monetary damages, which was the only relief the Saviches sought.
Finally, the court dismissed the civil conspiracy and harassment claims. The conspiracy claim failed because it did not allege a wrongful act—filing motions in court is standard litigation practice—and because the alleged conspiracy to block the Saviches’ appeal was ultimately unsuccessful. The harassment claim, based on the defendants filing motions for sanctions, similarly failed because seeking statutorily authorized sanctions is not harassment, and the proper venue to contest such actions was in the original case, not a new lawsuit.
Key Takeaways
- A prior certiorari action reviewing a zoning decision does not bar a subsequent lawsuit for monetary damages under the doctrine of claim preclusion, as damages are not an available remedy in a certiorari proceeding.
- A claim for “anticipated private nuisance” in Wisconsin can only be remedied by an injunction to prevent the nuisance; it cannot be the basis for a lawsuit seeking only monetary damages for a nuisance that has not yet occurred.
- To state a valid claim for fraud, a plaintiff must allege they actually believed and detrimentally relied on the defendant’s false statement; alleging knowledge of the falsity defeats an essential element of the claim.
Why It Matters
This decision clarifies the important procedural distinction between a certiorari review of a government action and a subsequent civil suit for tort damages. It confirms that claim preclusion does not bar a lawsuit for damages if that remedy was unavailable in the prior action, providing a clear path for litigants who may have separate tort claims arising from a zoning dispute, even after an unsuccessful permit challenge.
The opinion also serves as a strong reminder of strict pleading standards. It illustrates that a complaint can be dismissed if it fails to allege facts supporting every required element of a cause of action. For attorneys, it highlights the critical importance of selecting the correct legal theory and seeking the appropriate remedy—for example, recognizing that a claim for an anticipated nuisance sounds in equity (injunctive relief) rather than law (damages).