In DSG Evergreen Family Limited Partnership v. Town of Perry (2020 WI 23), a unanimous Wisconsin Supreme Court held that claim preclusion did not apply, but the plaintiff had no private right of action against the town, barring this eminent domain case.

The Town of Perry took property from DSG in an eminent domain action. The land taken included a road, and the condemnation petition required the town to replace the road with the same standards as the former road – the statutory standards for construction of town roads in Wis. Stat. § 82.50(1). DSG argued that the new road did not meet the statutory standards, so the town violated the petition.

At issue before the Supreme Court was whether claim preclusion barred DSG’s lawsuit and whether DSG had a private right of action to hold the town accountable for failing to meet the statutory standards.

The court found that claim preclusion did not bar DSG’s claims against the town. The previous two cases litigated between DSG and the town were limited by statute to only certain issues regarding eminent domain procedure. DSG in the previous cases would not have been able to bring its instant claims about the town’s failure to construct the road to appropriate standards. Because there was no identity of the causes of action between the previous cases and the instant case, claim preclusion did not apply.

However, the court did bar DSG’s claims on the grounds that DSG had no private right of action either to 1) request a declaration that the town must improve the road to the statutory standards or 2) seek damages from the town via a private cause of action so DSG could improve the road itself. The court could not award DSG a declaration of rights because § 82.50 gives the town discretion as to if and how it meets the construction standards. The town can petition to the Department of Administration for exceptions to some of the statutory standards. Thus, the request for declaration of rights was not ripe for judicial review. The court further found that § 82.50 does not create a private cause of action against a municipality, so DSG could not seek damages.