In Polk Properties, LLC v. Grota Appraisals, LLC (2018AP2296-FT), the Court of Appeals District II held that claim preclusion barred the plaintiff’s negligence and misrepresentation claims against an assessor, after the Supreme Court had previously upheld the assessment challenge in a separate action.

In 2018, the Wisconsin Supreme Court upheld the Village of Slinger’s reclassification of a Polk property from agricultural to residential (Thoma v. Village of Slinger). Prior to the Supreme Court decision, Polk filed this lawsuit against the assessor, claiming negligence and misrepresentation. After the Supreme Court decision, the assessor argued this lawsuit was barred by claim preclusion.

The appeals court agreed that claim preclusion barred Polk’s negligence and representation claims against the assessor. The case met each of the three elements of claim preclusion:

1. Identity of parties. While the assessor was not named in the first lawsuit, the assessor and the village shared a common legal interest in the validity of the residential assessment of Polk’s property.
2. Identity of actions. Both cases arose from the same facts. In both cases, Polk sought recovery for the same increased tax amount between the current residential and previous agricultural assessments.
3. Final judgment. The Supreme Court decision in Thoma was a final judgment on the validity of the village’s assessment. Since the Supreme Court did not base its Thoma decision on misrepresentations by the assessor, the final judgment in Thoma is valid and unaffected by the instant case.

The Court of Appeals District II also held recently in a separate case that Polk’s agricultural use of a residentially zoned property was not a legal nonconforming use, so the village was entitled to recover daily forfeitures and the value of residential taxes on the land.