V.A. House N3595, LLC v. KT Hay, 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.
October 16, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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 Nos. 2023AP986 Cir. Ct. Nos. 2022CV117
2019CV178
2023AP2273
2024AP2255

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

DEAN GALLOWAY,

PLAINTIFF-APPELLANT,

V.

TIMOTHY D. SCHIEWE,

DEFENDANT-RESPONDENT.

V.A. HOUSE N3595, LLC AND DEAN K. GALLOWAY,

RESPONDENTS-CROSS-APPELLANTS,

V.

KT HAY, LLC AND TIMOTHY D. SCHIEWE,

APPELLANTS-CROSS-RESPONDENTS.
Nos. 2023AP986
2023AP2273
2024AP2255

V.A. HOUSE N3595, LLC AND DEAN GALLOWAY,

APPELLANTS,

V.

KT HAY, LLC AND TIMOTHY D. SCHIEWE,

RESPONDENTS.

APPEALS and CROSS-APPEAL from orders of the circuit court for
Waushara County: GUY D. DUTCHER, Judge. Orders affirmed.

Before Kloppenburg, Nashold, and Taylor, JJ.

¶1 KLOPPENBURG, J. In these consolidated appeals and cross-appeal,
the parties challenge the circuit court’s resolution of various claims by V.A. House
N3595, LLC, and Dean K. Galloway against KT Hay, LLC, and Timothy D.
Schiewe concerning Schiewe’s construction activity on a portion of property that is
owned by Schiewe and that abuts property owned by Galloway.1

Following the parties’ lead, and for ease of reading, we generally refer to V.A. House
1

N3595, LLC, and its owner Dean K. Galloway collectively and individually as Galloway, and to
KT Hay, LLC, and its owner Timothy D. Schiewe collectively and individually as Schiewe.

Pursuant to WIS. STAT. RULE 809.10(3), these cases have been consolidated for disposition
by an order of this court dated September 29, 2025, and the caption in Appeal No. 2023AP2273 is
changed to correspond to the caption in the circuit court and to the position of the parties in the
circuit court.

All references to the Wisconsin Statutes are to the 2023-24 version.

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¶2 Schiewe’s appeal in Appeal No. 2023AP2273. Schiewe challenges
the circuit court’s denial of Schiewe’s pretrial motions to dismiss Galloway’s
common law private nuisance claim directed at Schiewe’s construction of two pole
buildings on Schiewe’s property near the boundary with Galloway’s property.2 We
conclude that the court properly denied these motions. Like the circuit court, we
conclude that Galloway’s allegations that Schiewe’s construction of the two pole
buildings interfered with Galloway’s use and enjoyment of his property—
specifically his right to a view that is unobstructed by buildings—sufficed to state a
claim.

¶3 Schiewe also challenges the circuit court’s denial of his postverdict
motion for judgment notwithstanding the verdict on the common law private
nuisance claim. We conclude that the court properly denied this motion.
Specifically, we conclude that Galloway presented legally sufficient evidence that
Schiewe’s construction of the two pole buildings caused significant harm to the
ordinary person.

¶4 Schiewe further challenges the circuit court’s postverdict order that
the common law private nuisance found by the jury be abated by removal of the two

2
In the circuit court, the terms “pole buildings” or “pole barns” were used to describe the
structures that Schiewe erected on the portion of his property that abutted Galloway’s property. A
pole building is typically a storage structure with steel siding on the exterior, used to store farm
equipment and vehicles.

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pole buildings. We conclude that the court’s order of abatement is consistent with
applicable law.3

¶5 Galloway’s cross-appeal in Appeal No. 2023AP2273. Galloway
challenges the circuit court’s denial of his request for leave to amend the second
amended complaint by including in a consolidated second amended complaint his
newly pleaded breach of contract, promissory estoppel, fraud, and misrepresentation
claims. Those claims were directed at Schiewe’s allegedly false promise not to
build on the portion of Schiewe’s property within the sight line of Galloway’s
property, and Schiewe’s alleged misrepresentations supporting that promise, in
return for Galloway’s promise not to build on the portion of his property within the
sight line of Schiewe’s property. Galloway fails to show that the court erroneously
exercised its discretion in dismissing those claims without prejudice on the ground
that the inclusion of those claims was contrary to the court’s order that the second
amended complaint not raise new claims.

¶6 Galloway also challenges the circuit court order disallowing the
punitive damages that the jury awarded to Galloway on the common law private
nuisance claim when the court ordered abatement of the nuisance. We conclude

3
Schiewe also challenges the circuit court’s denial of his postverdict motion to change the
jury’s award of compensatory damages on Galloway’s common law private nuisance claim as
unsupported by the evidence at trial. As we explain below, in addressing Galloway’s cross-appeal
we conclude that the court properly disallowed the compensatory damages award to Galloway on
the common law private nuisance claim when the court ordered abatement of the nuisance by the
removal of the two pole buildings. Accordingly, we do not further address Schiewe’s argument
that the court should have changed the amount of compensatory damages awarded by the jury based
on the trial evidence. See Barrows v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d
436, 842 N.W.2d 508 (2013) (“An appellate court need not address every issue raised by the parties
when one issue is dispositive.”).

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that, under the applicable law, the court properly disallowed the punitive damages
award in the absence of a legally recoverable compensatory damages award.

¶7 Galloway further challenges the circuit court’s denial of Galloway’s
postverdict request for attorney fees and costs. We conclude that Galloway fails to
show that the court erroneously exercised its discretion in denying Galloway’s
request for fees and costs.

¶8 Galloway’s appeal in Appeal No. 2024AP2255. Galloway challenges
the circuit court’s denial of his motion for relief from the judgment entered on his
common law private nuisance claim. In that motion, Galloway argued that new
facts—relating to Schiewe’s construction of a fuel depot between the two pole
buildings after the jury returned its verdict finding the two pole buildings to be a
private nuisance—required reconsideration of several of the court’s pretrial and
postverdict decisions. We conclude that Galloway fails to show that the court
erroneously exercised its discretion in denying the motion on the grounds that it was
barred by issue preclusion and that it was based on new facts that occurred after the
jury returned its verdict and the court entered its judgment.

¶9 Galloway’s appeal in Appeal No. 2023AP986. Galloway challenges
the circuit court’s dismissal of the complaint that he filed in a separate action (the
new complaint) after the trial on his claims relating to Schiewe’s construction of the
two pole buildings. In the new complaint, Galloway alleges fraud and
misrepresentation claims relating to Schiewe’s allegedly false promise not to build
on the portion of Schiewe’s property within the sight line of Galloway’s property,
and Schiewe’s allegedly false representations supporting that promise, in return for
Galloway’s promise not to build on the portion of his property within the sight line
of Schiewe’s property.

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¶10 We conclude that the circuit court properly dismissed the new
complaint on the ground that the claims in the new complaint are barred by claim
preclusion. More specifically, we conclude that the claims in the new complaint—
which seek relief for the harm allegedly caused to Galloway by Schiewe’s
construction of the two pole buildings and a fuel depot on Schiewe’s property
abutting Galloway’s property contrary to Schiewe’s allegedly false promise and
representations—arise out of the same transaction as the claims in the complaint in
the case that went to trial—which sought relief for the harm allegedly caused to
Galloway by Schiewe’s construction of the two pole buildings on Schiewe’s
property abutting Galloway’s property. While Galloway presented different legal
theories and sought different remedies in the two complaints, the claims in the two
complaints share the same nucleus of operative facts—Galloway’s and Schiewe’s
communications concerning their respective plans for construction on their
properties and Schiewe’s subsequent construction activity on Schiewe’s property
abutting Galloway’s property. Moreover, the facts alleged in the new complaint
supporting Galloway’s fraud and misrepresentation claims—regarding Schiewe’s
promise and his subsequent construction of the two pole buildings in violation of
that promise—were known to Galloway at the time he filed his initial and first
amended complaints in the case that went to trial. The new allegations of another
mode of breaking that promise—the construction of the fuel depot—do not render
claim preclusion inapplicable.

¶11 Separately and finally, we deny as unsupported Schiewe’s motion in
this court for sanctions against Galloway for assertedly unprofessional conduct, and
we deny as untimely and unwarranted Galloway’s motion in this court to remove
one of Schiewe’s attorneys.

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¶12 Accordingly, we affirm the orders challenged in these consolidated
appeals and cross-appeal.

BACKGROUND

¶13 We set out here sufficient facts to establish the context for the various
disputes at issue, and we present more detailed facts as pertinent to each of those
disputes in the discussion that follows.

¶14 In 2017, Galloway bought two parcels of land in Redgranite in
Waushara County. One parcel is approximately 30 acres and abuts 29th Road to the
east and a hay field owned by Schiewe to the north. The second parcel, located
further north on 29th Road, is approximately 1.2 acres and abuts 29th Road to the
east and Schiewe’s hay field to the south and west. Galloway constructed several
buildings on the 30-acre property and, in June 2019, a house on the 1.2-acre
property. In November or December 2019, Schiewe began constructing two pole
buildings close to the edges of Schiewe’s hay field abutting Galloway’s 1.2-acre
parcel: one building to the south and one building to the west of Galloway’s house.
Once constructed, the two pole buildings were about 25 feet in height. An aerial
photograph of Galloway’s house and Schiewe’s pole buildings is reproduced below
(the pole buildings are the long buildings perpendicular to each other):

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¶15 Galloway testified that Schiewe constructed the two pole buildings
only after learning that the zoning regulations prohibited Schiewe from constructing
a 20-foot-high fence in the same locations as the two pole buildings. Galloway
testified that in September 2019, Schiewe told him that Schiewe planned to
construct the fence to destroy Galloway’s view, if Galloway did not either raze his
house or sell the 1.2-acre parcel to Schiewe. Schiewe testified that his threats to
build a fence were not serious and were based on his frustration that Galloway had
not sold him the 1.2-acre parcel after years of discussing it. In October 2019,
Schiewe made a final offer for the property, which Galloway declined. Schiewe
testified that his inability to build a large fence had no correlation with his decision
to build the two pole buildings and that the location of the pole buildings was the
most practical to serve his farming needs.

¶16 In December 2019, Galloway filed a complaint against Schiewe
alleging that Schiewe’s construction of the two pole buildings: (1) violated zoning
ordinances contrary to WIS. STAT. § 59.69(11); (2) constituted a private nuisance
under WIS. STAT. § 844.10, which prohibits the construction of “[a]ny fence, hedge

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or other structure in the nature of a fence unnecessarily exceeding 6 feet in height,
maliciously erected or maintained for the purpose of annoying the owners or
occupants of adjoining property” (referred to as the “statutory private nuisance fence
claim”); (3) interfered with real property contrary to WIS. STAT. § 844.01; and
(4) constituted a common law private nuisance. We will generally refer to this case
as the “LLC case” because the named parties were the LLCs.

¶17 After Galloway filed an amended complaint alleging the same four
claims, Schiewe filed a motion to dismiss the amended complaint for failure to state
a claim on which relief can be granted. The motion was in part subsequently
converted to a motion for summary judgment. The circuit court held a hearing on
the motion in September 2020.

¶18 The circuit court entered an order in October 2020 that: (1) granted
Schiewe’s motion for summary judgment dismissing the zoning claim and
Schiewe’s motion to dismiss the statutory private nuisance fence claim; and
(2) denied Schiewe’s motion to dismiss the interference with real property claim
and the common law private nuisance claim. In the order, the court also granted
Galloway’s request to file a second amended complaint “for purposes of clarifying
the remedies [Galloway] seeks” but stated that “[Galloway] shall not add additional
legal claims.” We, like the circuit court and the parties, generally refer to this order
as the “no new claims order.”

¶19 Galloway filed the second amended complaint in December 2020. In
the second amended complaint, Galloway expanded on his allegations relating to
Schiewe allegedly constructing the two pole buildings to coerce Galloway into
selling the 1.2-acre parcel, and also added the allegation that, in April 2018,
Galloway promised that the buildings he would construct on his two parcels would

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not block Schiewe’s views, and Schiewe promised that he would not block
Galloway’s views. Pertinent here, the second amended complaint alleged the same
interference with real property claim under WIS. STAT. § 844.01 and common law
private nuisance claim, and sought the same remedies, as in the first amended
complaint.

¶20 In April 2021, while the LLC case was pending, Galloway initiated a
separate case (generally, the “personal case”) by filing a complaint against Schiewe.
The complaint in the personal case contained detailed allegations about Galloway’s
personal circumstances and motivation for purchasing the property in Waushara
County; his interactions with Schiewe regarding each of their plans for developing
their adjoining properties; their interactions after Galloway began construction
activity on his property; Schiewe’s subsequent construction activity on his property
abutting Galloway’s property; and the effect of Schiewe’s conduct on Galloway’s
health and the value of his property. The complaint alleged seven claims:
(1) property damage caused by crime under WIS. STAT. §§ 895.446 and 943.01
(regarding Schiewe’s construction of the two pole buildings); (2) intentional
infliction of emotional distress (regarding Schiewe’s construction of the two pole
buildings and alleged conduct before and during construction); (3) breach of
contract (regarding the parties’ alleged agreement not to obstruct each other’s
views); (4) promissory estoppel (if the agreement is not a contract); (5) fraud
(regarding Schiewe’s alleged false promise and misrepresentations as to his
construction plans); (6) negligent misrepresentation (if the alleged false promise and
misrepresentations are not fraud); and (7) strict liability misrepresentation (if the
alleged promise and misrepresentations are not negligent).

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¶21 Galloway moved to consolidate the LLC case and the personal case,
and requested leave to amend the second amended complaint by including the
claims newly pleaded in the personal case in a consolidated second amended
complaint. Schiewe moved to dismiss the claims in the personal case as violating
the no new claims order in the LLC case. The circuit court granted the motion to
consolidate and scheduled a hearing to address the motion to dismiss and “any other
issues that need the [c]ourt’s involvement.”

¶22 At the hearing, the circuit court issued an oral ruling denying
Galloway’s request for leave to amend the second amended complaint by including
the breach of contract, promissory estoppel, fraud, negligent misrepresentation, and
strict liability misrepresentation claims in a consolidated second amended
complaint. The court explained that these claims were “brought in clear
contradiction of the [c]ourt’s very express[], direct order that no additional claims
would be filed.” The court granted Galloway’s request to include the claims for
property damage caused by crime and intentional infliction of emotional distress in
a consolidated second amended complaint. The court explained that these claims
directly related to the interference with property and common law private nuisance
claims in the LLC case. After the hearing, the court entered an order that granted
Schiewe’s motion to dismiss without prejudice the breach of contract, promissory
estoppel, fraud, negligent misrepresentation, and strict liability misrepresentation
claims, and denied Schiewe’s motion to dismiss the claims for property damage
caused by crime and intentional infliction of emotional distress.

¶23 At the final pretrial conference in May 2022, Schiewe renewed his
motion to dismiss Galloway’s common law private nuisance claim, and the circuit

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court denied the motion for the same reasons that it had denied Schiewe’s earlier
pretrial motion.

¶24 The case based on the consolidated second amended complaint
proceeded to a six-day jury trial on the intentional infliction of emotional distress
and common law private nuisance claims.4 The first day of trial included a site visit
to the property at issue by the circuit court judge, the parties, and the jury. In the
remaining days of trial, the jury heard testimony from Galloway, Galloway’s wife,
Schiewe, the Director of Zoning and Land Conservation for Waushara County, two
real estate appraisers, two psychologists who evaluated Galloway, and builders who
worked for both Galloway and Schiewe.

¶25 The jury ruled in favor of Galloway on the common law private
nuisance claim and awarded him $300,000 in compensatory damages for the loss of
fair market value of his property. The jury awarded no compensatory damages for
the loss of use or enjoyment of his property. The jury also awarded Galloway
$1,000,000 in punitive damages. The jury ruled against Galloway on the intentional
infliction of emotional distress claim.

¶26 Schiewe moved for judgment notwithstanding the verdict on the
common law private nuisance claim, for the circuit court to change two answers on
the verdict regarding the existence of a nuisance and the award of compensatory
damages, and for the circuit court to reduce the punitive damages award. The court

4
The circuit court dismissed the property damage caused by crime claim on grounds that
are not challenged on appeal. The court also implicitly, and without objection in the circuit court
or challenge on appeal, dismissed the interference with property claim under WIS. STAT. § 844.01
as a separate claim from the common law private nuisance claim, by not allowing the § 844.01
claim to go to trial. As discussed below, the court did use § 844.01 to fashion an equitable remedy
after the jury found that Schiewe’s two pole buildings constituted a private nuisance.

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entered an order that denied Schiewe’s motions for judgment notwithstanding the
verdict and to change the verdict, and granted Schiewe’s motion to reduce the
punitive damages award to $600,000.

¶27 In January 2023, Galloway moved for multiple forms of relief related
to the jury verdict and the circuit court’s postverdict order. Pertinent here, Galloway
asked that the court order the removal of Schiewe’s two pole buildings and award
Galloway attorney fees.

¶28 In April 2023, the court held a remedies hearing at which it issued its
ruling on remedies as follows. The court granted Galloway’s request for abatement
and ordered the removal of the two pole buildings. The court disallowed the jury’s
compensatory damages award, reasoning that since the two pole buildings would be
removed, there would no longer be the reduction in the fair market value of
Galloway’s property on which the compensatory damages award was based. The
court also disallowed the punitive damages award, reasoning that punitive damages
were not available in the absence of compensatory damages. The court also denied
Galloway’s request for attorney fees. The court further ordered a 15-year “no build”
restriction on Schiewe’s property, with some limited exceptions. Following its oral
ruling, the court sua sponte stayed the order, anticipating appeals from the parties.

¶29 Both parties filed motions for reconsideration concerning the circuit
court’s ruling at the remedies hearing. Schiewe argued that the court should reverse
its decision to place a “no build” restriction on Schiewe’s property. Galloway
argued that certain details of the “no build” restriction should be reconsidered, the
court should grant attorney fees, the court should grant punitive damages, and the
court should grant an injunction prohibiting certain other items and structures from
being placed on Schiewe’s property. The court held a hearing on the motions to

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reconsider. At the hearing, at Galloway’s request, the court withdrew the previously
ordered “no build” restriction.

¶30 In October 2023, the circuit court entered its final order for entry of
judgment. In the order, the court: (1) granted Galloway’s motion for abatement and
ordered the removal of the two pole buildings, while simultaneously staying the
order pending appeal; (2) reduced Galloway’s compensatory damages to $0.00;
(3) reduced Galloway’s punitive damages to $0.00; (4) denied Galloway’s motion
for attorney fees; and (5) denied both parties’ motions for reconsideration.

¶31 In July 2024, Galloway filed a motion for relief from judgment under
WIS. STAT. § 806.07(1)(c), (g), and (h). The motion was based on Schiewe’s “newly
constructed fuel depot” between his two pole buildings, and asked that the circuit
court amend its abatement order to include the fuel depot, reconsider its denial of
attorney fees in light of the new construction, and allow the statutory private
nuisance fence claim based on the fuel depot. The court held a hearing and, in
August 2024, entered an order denying the motion.

¶32 Meanwhile, in September 2022, after the jury returned its verdict but
before the circuit court held the remedies hearings summarized above, Galloway
commenced a new action against Schiewe. The complaint in the new case alleged
fraud, negligent misrepresentation, and strict liability misrepresentation. The new
complaint alleged that in 2018, Schiewe made a false promise, supported by false
representations, that Schiewe would not build on Schiewe’s property so as to block
Galloway’s views if Galloway promised he would not block Schiewe’s views; and
that Galloway relied on Schiewe’s false promise and misrepresentations when
Galloway constructed buildings on Galloway’s property. The complaint also
alleged that Galloway learned in September 2022 that Schiewe intended to build a

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fuel depot between the two pole buildings Schiewe had constructed in late 2019.
Galloway alleged that Schiewe’s construction of the two pole buildings and
intention to construct a fuel depot violated the verbal agreement they had made
previously about where each of them would and would not build, and that Galloway
would have constructed his buildings in different locations had he known of
Schiewe’s false promise and misrepresentations.

¶33 In December 2022, Schiewe moved to dismiss the new case as barred
by claim preclusion, and the circuit court granted the motion in March 2023.

¶34 These appeals and cross-appeal follow.

DISCUSSION

¶35 We address sequentially Schiewe’s appeal in Appeal
No. 2023AP2273, Galloway’s cross-appeal in that same appeal, Galloway’s appeal
in Appeal No. 2024AP2255, and Galloway’s appeal in Appeal No. 2023AP986.

I. Schiewe’s Appeal in Appeal No. 2023AP2273

¶36 Schiewe challenges the circuit court’s denial of his pretrial motions to
dismiss Galloway’s common law private nuisance claim and of his postverdict
motion for judgment notwithstanding the verdict on that claim. Schiewe also
challenges the court’s postverdict abatement order requiring the removal of the two
pole buildings. We address these challenges in turn.

A. Private Nuisance Claim

¶37 Schiewe moved twice before trial to dismiss Galloway’s common law
private nuisance claim seeking damages for the obstruction of the views from

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Galloway’s property resulting from the construction of the two pole buildings. After
the jury found in Galloway’s favor on that claim and awarded compensatory
damages for loss of fair market value resulting from the obstruction of those views,
Schiewe moved for judgment notwithstanding the verdict on the common law
private nuisance claim. Schiewe argued in each motion that the claim fails as a
matter of law, and the circuit court denied each motion.

¶38 On appeal, Schiewe argues that the common law private nuisance
claim fails as a matter of law because the interest that Galloway alleged in his
complaint and asserted at trial—unobstructed views from Galloway’s property
across Schiewe’s farm fields—is not legally protected. Schiewe also argues that the
common law private nuisance claim fails as a matter of law because Galloway
presented at trial evidence of harm only to himself, and a common law private
nuisance claim requires proof of harm to the ordinary person. We reject the first
argument as contrary to relevant legal authority and the second argument as
unsupported by the record.

1. Applicable Standard of Review and Legal Principles

¶39 “‘A motion to dismiss for failure to state a claim tests the legal
sufficiency of the complaint.’” Data Key Partners v. Permira Advisers LLC, 2014
WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693 (quoted source omitted). “Upon a
motion to dismiss, we accept as true all facts well-pleaded in the complaint and the
reasonable inferences therefrom.” Id. The complaint’s sufficiency depends on the
substantive law that underlies the claim. Id., ¶31. “‘If the facts reveal an apparent
right to recover under any legal theory, they are sufficient as a cause of action.’”
Strid v. Converse, 111 Wis. 2d 418, 423, 331 N.W.2d 350 (1983) (quoted source
omitted). Whether a complaint adequately pleads a cause of action is a question of

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law that we review de novo. Hermann v. Town of Delavan, 215 Wis. 2d 370, 378,
572 N.W.2d 855 (1998).

¶40 We also review de novo the circuit court’s denial of a motion for
judgment notwithstanding the verdict. Fricano v. Bank of Am. NA, 2016 WI App
11, ¶19, 366 Wis. 2d 748, 875 N.W.2d 143. “A motion for judgment
notwithstanding the verdict ‘does not challenge the sufficiency of the evidence to
support the verdict.’” Id. (quoted source omitted). “Rather, such a motion ‘admits
for purposes of the motion that the findings of the verdict are true, but asserts that
judgment should be granted [to] the moving party on grounds other than those
decided by the jury.’” Id. (quoted source omitted). A party is entitled to judgment
notwithstanding the verdict when “‘the facts found by the jury are not sufficient as
a matter of law to constitute a cause of action.’” Id. (quoted source omitted).

¶41 “A nuisance is an unreasonable activity or use of property that
interferes substantially with the comfortable enjoyment of life, health, [or] safety of
another or others.” State v. Quality Egg Farm, Inc., 104 Wis. 2d 506, 517, 311
N.W.2d 650 (1981). “‘The essence of a private nuisance is an interference with the
use and enjoyment of land.’” Milwaukee Metro. Sewerage Dist. v. City of
Milwaukee, 2005 WI 8, ¶27, 277 Wis. 2d 635, 691 N.W.2d 658 (quoting W. Page
Keeton et al., Prosser and Keeton on Torts § 87, at 619 (5th ed. Lawyers ed. 1984),
and citing Krueger v. Mitchell, 112 Wis. 2d 88, 103, 332 N.W.2d 733 (1983);
RESTATEMENT (SECOND) OF TORTS § 821D (1977); RESTATEMENT (SECOND) OF
TORTS § 822 cmt. c).5 “The tort of nuisance gives legal protection to a person’s

5
Wisconsin has explicitly adopted the definition of private nuisance set forth in the
RESTATEMENT (SECOND) OF TORTS, § 821 (1977). Milwaukee Metro. Sewerage Dist. v. City of
Milwaukee, 2005 WI 8, ¶25 n.4, 277 Wis. 2d 635, 691 N.W.2d 658.

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interest in the unimpaired use and enjoyment of land. This protection extends not
only to the preservation of the property itself but also to its enjoyable use.” Krueger,
112 Wis. 2d at 106.

¶42 A person’s interest in the unimpaired use and enjoyment of property
encompasses “‘the pleasure, comfort and enjoyment that a person normally derives
from the occupancy of land.’” Gumz v. Northern States Power Co., 2006 WI App
165, ¶23, 295 Wis. 2d 600, 721 N.W.2d 515, aff’d, 2007 WI 135, 305 Wis. 2d 263,
742 N.W.2d 271 (citing RESTATEMENT (SECOND) OF TORTS § 821D cmt. b). A
private nuisance is “broadly defined to include any disturbance of the enjoyment of
property.” Prah v. Maretti, 108 Wis. 2d 223, 232, 321 N.W.2d 182 (1982).
“[T]here are no per se exceptions to nuisance claims in Wisconsin; nuisance claims
may arise from any disturbance of the enjoyment of property.” Apple Hill Farms
Dev., LLP v. Price, 2012 WI App 69, ¶14, 342 Wis. 2d 162, 816 N.W.2d 914
(rejecting argument that a nuisance claim can never be based on an obstruction to a
party’s view from the party’s property).

¶43 “The activity complained of … must be offensive to a person of
ordinary and normal sensibilities.” Bubolz v. Dane County, 159 Wis. 2d 284, 298,
464 N.W.2d 67 (Ct. App. 1990) (citing Bie v. Ingersoll, 27 Wis. 2d 490, 493, 135
N.W.2d 250 (1965)). Whether an activity is a nuisance depends on the particular
facts in light of “‘the general standards of normal persons in the community.’”
Krueger, 112 Wis. 2d at 107 (quoted source omitted). These particular facts include
whether the land is in “a rural, rather than urban, area.” Bubolz, 159 Wis. 2d at 299
(citing Abdella v. Smith, 34 Wis. 2d 393, 400, 149 N.W.2d 537 (1967)).

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2. Additional Background

¶44 In the second amended complaint, Galloway referenced his enjoyment
of “the beautiful open views of the fields” surrounding his property. Galloway
alleged that Schiewe constructed the two pole buildings “to block Galloway’s
views,” “to be eye-sores,” to “reduc[e] the value of [Galloway’s] property,” and to
“reduc[e] Galloway’s enjoyment of his property.” Galloway alleged that the
construction of the two pole buildings “invade[s] [Galloway’s] interest in the private
use and enjoyment of [his] property by … [i]nterfering with the natural beauty of
the area [and] … [b]locking site [sic] lines of [Galloway’s] property.” Galloway
further alleged that the two pole buildings “are intended to disrupt [Galloway’s]
pleasure, comfort, and enjoyment of the [p]roperty” by “stopping access to … views
which are indispensable to the enjoyment of the property.”

¶45 Galloway and two appraisers addressed the views from Galloway’s
property in their testimony at trial. Galloway testified as follows. The views from
Galloway’s property of the “beautiful fields” were what was “so wonderful” about
the property. Schiewe told Galloway that Schiewe wanted to block Galloway’s
views from Galloway’s house, and to “completely destroy [Galloway’s] view[s].”
In constructing the two pole buildings, Schiewe “fulfilled [Schiewe’s] threat” of
destroying Galloway’s views. Galloway asked Schiewe to rotate the two pole
buildings “90 degrees” so that the buildings did not “destroy [Galloway’s] view[s],”
but Schiewe did not do so.

¶46 Appraiser Kent Steele testified for Galloway as follows. The “view
premium,” or the monetary benefit of the views, for Galloway’s property was one-
third. “The one-third is a downward adjustment from the [value of the]
unobstructed” property because the property “lost its only desirable views” due to

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the existence of the two pole buildings and was worth less as a result. Without the
two pole buildings, the property’s value was $650,000; with the two pole buildings,
its value was $434,000.

¶47 Appraiser Timothy Freudenthal testified at trial for Schiewe that there
was no loss of value to Galloway’s property based on the obstruction of views from
the property. In his deposition testimony, which was read to the jury during trial,
Freudenthal testified that the impairment of the views from Galloway’s property
“could be 80 percent.” He acknowledged that Galloway’s property “lost almost all
of its desirable view amenities” because of the construction of the two pole
buildings, but testified that, “[f]rom a market standpoint based on highest and best
use, the loss of view is minimal.”

¶48 As stated, the jury found in favor of Galloway on his common law
private nuisance claim based on the obstruction of the views from his property,
determined that Galloway suffered a loss of his property’s fair market value as a
result of the nuisance, and determined that Galloway himself suffered no loss of use
or enjoyment of his property.

3. Analysis—Interest in Unobstructed Views

¶49 We agree with the circuit court that the allegations in the second
amended complaint summarized above sufficed to state a common law private
nuisance claim based on the two pole buildings’ obstruction of the views of the
fields from Galloway’s property.

¶50 Schiewe argues that the claim fails because an unobstructed view is
not a legally protected property interest. We reject this argument as unsupported by
the legal authority cited by Schiewe and contrary to the legal authority cited above.

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¶51 As an initial matter, we reject Schiewe’s characterization of an
unobstructed view as “a preferred view.” The second amended complaint alleged
that the views that were blocked were of open fields in a rural area. While a party
may have less interest in views in an urban area where houses are built close to each
other on small lots, the views across open fields in a rural area are not “preferred,”
but can inherently be part of the enjoyment derived from property located in the
midst of those fields. Our supreme court has noted that “what would be a nuisance
on the Capitol Square in Madison would not be a nuisance in the country.” Abdella,
34 Wis. 2d at 400. The converse is equally valid: what would be a nuisance in the
country would not be a nuisance in the city. Schiewe fails to persuade us that
unobstructed views of open fields cannot be part of the use and enjoyment of
property in a rural area.

¶52 Schiewe cites two cases that hold that there is no right to
compensation in a condemnation action for the loss, in one case, of a property
owner’s view of a public street, and, in the other case, of the visibility of a billboard
from a public road: Randall v. City of Milwaukee, 212 Wis. 374, 249 N.W. 73
(1933) (owner’s view); and Adams Outdoor Advertising Limited Partnership v.
City of Madison, 2018 WI 70, 382 Wis. 2d 377, 914 N.W.2d 660 (visibility of
billboard). Neither case supports Schiewe’s proposition that a nuisance claim
cannot be based on an interest in an unobstructed view.

¶53 In Randall, our supreme court considered a landowner’s claim that a
shelter covering the entrance to a pedestrian tunnel under a public street constituted
an unconstitutional taking because it obstructed the view of the street from the
landowner’s abutting property. Randall, 212 Wis. at 376-77. The court stated that
the owner of land abutting a street has the right of view as an incident to ownership.

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Id. at 378. However, the court clarified that that right is subject to the “public street
use and purpose as the location of the street requires.” Id. The court ruled that,
because the city had acquired the land for street purposes, the public rights in the
street were paramount to those of private landowners and the landowner in that case
was, therefore, not entitled to condemnation compensation for the loss of such rights
as the right of view. Id. at 380-85. That is, there was no taking of the right of view
when the city constructed structures on a street that the city had acquired. Id. at
384-85. Rather, the landowner could seek consequential damages under a statute
that provided “‘a remedy for the incidental damages to abutting land, no part of
which is taken.’” Id. at 383-85 (quoted source omitted).

¶54 In Adams, our supreme court considered the claim that the city took
Adams’ property without compensation when the city constructed a pedestrian
bridge over a public road that blocked the visibility from the road of one side of
Adams’ billboard. Adams, 382 Wis. 2d 377, ¶2. The court ruled against Adams,
concluding that the holding in Randall summarized above was dispositive. Adams,
382 Wis. 2d 377, ¶31. Based on Randall, the court ruled that the reduced visibility
of the billboard from the road resulting from the pedestrian bridge was not a taking
of private property for public use. Adams, 382 Wis. 2d 377, ¶¶31-39. The court
concluded that “a right to visibility of private property from a public road” is not “a
right recognized under [Wisconsin] takings jurisprudence.” Id., ¶¶23, 46.

¶55 The inapplicability of these two cases to the issue here is obvious.
This case concerns a private party’s interest in the party’s property vis-à-vis another
private party’s use of that other party’s property, and whether that use is a nuisance
entitling the first party to remedies including abatement and damages. Whether the
first party’s asserted interest is protected is determined by nuisance law, not takings

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law. Schiewe fails to explain, with citation to relevant legal authority, why these
two cases involving the interplay of public and private rights under takings
jurisprudence apply to this nuisance action between two private parties.

¶56 Schiewe’s citation to Hay v. Weber, 79 Wis. 587, 48 N.W. 859 (1891),
fares no better. In Hay, our supreme court considered a claim by an owner of
property used as a store seeking to enjoin an adjoining property owner’s
construction of two bay windows extending into the street as a nuisance because the
windows would damage the store’s business by obstructing the view to and from
the store. Id. at 587-89. The court rejected the claim, concluding that the bay
windows would not prevent access to the store, and that the allegation that the
limited obstruction of visibility of the store by the public would damage the store’s
business was “too remote and speculative to constitute the basis of a private action
at law or in equity.” Id. at 591. Schiewe’s citation of this case for the proposition
that an unobstructed view “to or from one’s property is not a legally protected
interest” misrepresents the case’s holding. Schiewe does not develop an argument
based on relevant legal authority to support his repeated assertions that Hay requires
rejection as a matter of law of the claim here that Schiewe’s obstruction of the views
of open fields from Galloway’s property is a private nuisance.

¶57 Schiewe also cites non-Wisconsin case law, but foreign case law does
not bind us. State v. Muckerheide, 2007 WI 5, ¶7, 298 Wis. 2d 553, 725 N.W.2d
930. Moreover, Wisconsin case law refutes Schiewe’s argument. As summarized
above, a private nuisance is “broadly defined to include any disturbance of the
enjoyment of property,” Prah, 108 Wis. 2d at 232, in light of “‘the general standards
of normal persons in the community,’” Krueger, 112 Wis. 2d at 107 (quoted source
omitted). “[T]here are no per se exceptions to nuisance claims in Wisconsin;

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nuisance claims may arise from any disturbance of the enjoyment of property.”
Apple Hill Farms, 342 Wis. 2d 162, ¶14. The allegations in the second amended
complaint and the trial testimony presented above sufficiently establish that the
obstruction of views across fields from property in a rural area may disturb the
property owner’s enjoyment of that property, in light of the general standards of
normal persons in the community, so as to constitute a private nuisance.

¶58 Schiewe argues that Prah is limited only to access to sunlight and that
access to sunlight is objective and can be easily decided by a jury, while an
unobstructed view is subjective and diverts the jury from the reasonable person
standard that applies to a nuisance claim. This argument fails in at least the
following respects. While the claim in Prah concerned access to sunlight, the
language rejecting per se exclusions to nuisance law is not limited only to access to
sunlight. See Prah, 108 Wis. 2d at 237-38 (rejecting per se exclusions to nuisance
law generally, citing State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974)). In
addition, the court in Prah clarified that recognizing an interest in property that may
be protected under nuisance law “does not mean that [interference with that interest]
will be or must be found to constitute a nuisance under all circumstances.” Prah,
108 Wis. 2d at 240. That finding is for the jury to make, and Schiewe does not
explain why a jury cannot determine whether the obstructed views resulting from
the pole buildings here unreasonably interfere with the ordinary person’s use and
enjoyment of the property at issue. Indeed, the jury here found a loss of Galloway’s
property’s fair market value based on the obstructed views, even as it found no loss
in Galloway’s use and enjoyment of his property.

¶59 Schiewe broadly argues that “legal chaos” will result from a ruling
that the interference with unobstructed views of open fields in a rural area can

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support a private nuisance claim. Schiewe portrays a parade of horribles emanating
from such a ruling that has no grounding in the facts of this case or in the
requirement, addressed in the next section, that a nuisance be “offensive to [a]
person of ordinary and normal sensibilities.” Bie, 27 Wis. 2d at 493. We reject this
argument as speculative.

¶60 In sum, to exclude unobstructed views of fields in a rural area as a
property interest under nuisance law would “restrict[] the essential flexibility of the
nuisance doctrine.” See Vogel v. Grant-Lafayette Elec. Coop., 201 Wis. 2d 416,
427, 548 N.W.2d 829 (1996) (rejecting limiting nuisance to a physical interruption
with the use of the land); see also Apple Hill Farms, 342 Wis. 2d 162, ¶¶13-15
(concluding that defendant’s retaining wall that blocked plaintiff’s view from
plaintiff’s property, among other things, was a nuisance). We decline to do so here.

4. Analysis—Harm to Ordinary Person

¶61 Schiewe argues that the jury’s verdict finding that the two pole
buildings constituted a nuisance should be changed as a matter of law because
Galloway offered no evidence of significant harm to an ordinary person, but only of
harm to himself based on his vulnerabilities and susceptibilities. We agree with
Schiewe that for an activity to be a private nuisance, the plaintiff must present
evidence that the activity is “offensive to [a] person of ordinary and normal
sensibilities.” Bie, 27 Wis. 2d at 493; see also Krueger, 112 Wis. 2d at 106 (liability
for a nuisance exists “‘only to those to whom it causes significant harm, of a kind
that would be suffered by a normal person in the community’” (quoted source
omitted)). However, the record refutes Schiewe’s argument that the evidence
presented at trial did not suffice to make that showing here.

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¶62 While Galloway presented evidence of his own personal sensitivities,
he also presented evidence from which a jury could reasonably find that the two
pole buildings’ obstruction of the views of open fields from Galloway’s property
interferes with Galloway’s enjoyment and use of his property from the perspective
of a person of ordinary sensibilities. Galloway himself testified that the views of
the open fields from his property were essential to his enjoyment of his property,
and that the two pole buildings destroyed those views. The appraisers both testified,
either at trial or in the deposition testimony read to the jury, that Galloway’s
property lost almost all of the most desirable views from the property, and one of
the appraisers testified that that loss reduced the fair market value of the property
by one-third. The jury visited the site and saw for itself the views from Galloway’s
property, including the views in the direction of the two pole buildings. The jury’s
site visit and the testimony just summarized were unqualified by and independent
of sensitivities personal to Galloway and provided a basis from which the jury could
find that the obstruction of the views from Galloway’s property caused significant
harm based on the standards of a “normal person in the community.” Krueger, 112
Wis. 2d at 106 (liability for a nuisance exists “‘only to those to whom it causes
significant harm, of a kind that would be suffered by a normal person in the
community’” (quoted source omitted)).

B. Abatement Order

¶63 Schiewe argues that the circuit court’s postverdict abatement order
fails as a matter of law because it lacks the findings of inadequate remedy at law
and irreparable harm that are required for injunctive relief. We reject this argument
as contrary to relevant legal authority.

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¶64 Once a nuisance has been found, “‘the [circuit] court ha[s] the power
to adapt its remedy to the exigencies and needs of the case.’” Schultz v. Trascher,
2002 WI App 4, ¶31, 249 Wis. 2d 722, 640 N.W.2d 130 (quoted source omitted).
“[A]ny remedies fashioned under the provisions of [WIS. STAT.] § 844.01 may be
applied to a private nuisance dispute if the circumstances warrant such an
application.” Schultz, 249 Wis. 2d 722, ¶31. Pertinent here, § 844.01(1) provides
that a court may, as a remedy for interference with a person’s property interest, issue
an order “to redress past injury, to restrain further injury, to abate the source of
injury, or for other appropriate relief.” § 844.01(1). The statute further provides:
“Interference with an interest is any activity other than physical injury which lessens
the possibility of use or enjoyment of the interest.” § 844.01(3). Whether to award
equitable relief under § 844.01 is within the court’s discretion. Schultz, 249 Wis. 2d
722, ¶25. A court properly exercises its discretion when it examines the relevant
facts, applies a proper standard of law and, using a rational process, reaches a
conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d
400, 414-15, 320 N.W.2d 175 (1982).

¶65 After the jury rendered its verdict finding that the two pole buildings
constituted a private nuisance and awarded compensatory damages for loss of fair
market value and punitive damages, Galloway filed a motion for abatement and
other equitable relief, including that the circuit court order removal of the two
buildings. The court held three hearings related to postverdict remedies.

¶66 At the first remedies hearing, the circuit court noted that this was a
“property damage lawsuit,” that WIS. STAT. § 844.01 authorized it to abate the
nuisance causing the damage, and that the damage was caused by the two pole
buildings that were the focus of the suit and which the jury found were erected for

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a malicious purpose. The court reasoned that to award only monetary damages
“would be to endorse … the concept that one may put up … structures for the sole
and exclusive purpose … of harassing, intimidating, and maliciously causing
difficulty to their neighbor, and the [c]ourt can do nothing about it as long as [the
neighbor] get[s] paid for [the difficulty].” The court rejected that idea and ordered
abatement. The court subsequently issued an order for entry of judgment granting
Galloway’s motion for abatement and ordering that the two pole buildings be razed.
The court also stayed the abatement order pending appeal.

¶67 Schiewe argues that the circuit court erroneously exercised its
discretion because it did not address the requirements for an injunction, namely, the
lack of an adequate remedy at law and irreparable harm. In support of this
proposition, Schiewe cites Sunnyside Feed Co. v. City of Portage, 222 Wis. 2d 461,
472, 588 N.W.2d 278 (Ct. App. 1998) (“There are two considerations when deciding
whether to grant an injunction: (1) the movant has no adequate remedy at law; and
(2) the movant will suffer irreparable harm if the injunction is not granted.”).
However, that case does not address the selection of remedies allowed under WIS.
STAT. § 844.01 and, therefore, does not apply here, when Galloway opted under
§ 844.01 to select the remedy of abatement.

¶68 As quoted above, this court in Schultz concluded “that any remedies
fashioned under the provisions of [WIS. STAT.] § 844.01 may be applied to a private
nuisance dispute if the circumstances warrant such an application.” Schultz, 249
Wis. 2d 722, ¶31. Here, as reflected in the circuit court’s remarks summarized
above, the court explained its conclusion that the circumstances were appropriate
for the application of abatement under § 844.01. The record establishes that the

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court examined the facts, applied a proper standard of law, and reached a conclusion
that a reasonable judge could reach.

¶69 For the reasons stated, we conclude that Schiewe fails to show that the
circuit court erroneously exercised its discretion in ordering the WIS. STAT. § 844.01
remedy of abatement.

II. Galloway’s Cross-Appeal in Appeal No. 2023AP2273

¶70 Galloway argues that the circuit court erred in making the following
three decisions: (1) dismissing without prejudice the breach of contract, promissory
estoppel, fraud, and two misrepresentation claims that Galloway asked to include in
a consolidated second amended complaint (referred to in this opinion as the fraud
and misrepresentation claims, following Galloway’s lead in his briefing);
(2) disallowing the punitive damages that the jury awarded to Galloway on the
common law private nuisance claim; and (3) denying Galloway’s postverdict
request for attorney fees and costs. We address these decisions in turn.

A. Dismissal of Fraud and Misrepresentation Claims

¶71 As an initial matter, we clarify the nature of the decision on review.
On its face, the circuit court granted Schiewe’s motion to dismiss the fraud and
misrepresentation claims that Galloway asked to include in a consolidated second
amended complaint. However, in substance, the court denied Galloway’s implicit
motion for leave to amend the second amended complaint by including the fraud
and misrepresentation claims in a consolidated second amended complaint. Both
parties address the court’s decision under the rubric of a circuit court’s exercise of
discretion to permit the amendment of a complaint. We follow their lead.

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¶72 After an action has been pending for more than six months, “a party
may amend [its] pleading only by leave of court or by written consent of the adverse
party; and leave shall be freely given at any stage of the action when justice so
requires.” WIS. STAT. § 802.09(1). Pertinent here, “the interests of justice favor the
compliance with court orders designed to prevent the unnecessary protraction of
litigation.” Trispel v. Haefer, 89 Wis. 2d 725, 738, 279 N.W.2d 242 (1979). While
“Wisconsin embraces a policy in favor of liberal amendment of pleadings,” circuit
courts have “‘wide discretion in determining whether to permit the amendment of
pleadings at any stage of the proceedings.’” Tietsworth v. Harley-Davidson, Inc.,
2007 WI 97, ¶25, 303 Wis. 2d 94, 735 N.W.2d 418 (quoted source omitted). “We
affirm a [circuit] court’s exercise of discretion if the court applied the correct legal
standard to the facts of record in a reasonable manner.” Mach v. Allison, 2003 WI
App 11, ¶20, 259 Wis. 2d 686, 656 N.W.2d 766 (2002).

¶73 The relevant procedural facts are set forth above in ¶¶14-20, and we
elaborate on some of those facts here. We also present in greater detail the circuit
court’s rulings initially granting Galloway’s request to file a second amended
complaint and then “prohibit[ing]” the inclusion of the fraud and misrepresentation
claims in a consolidated second amended complaint.

¶74 More than six months after Galloway filed both his initial complaint
and his first amended complaint, at the hearing at which the circuit court ruled on
Schiewe’s motion to dismiss Galloway’s claims in the first amended complaint,
Galloway asked to file a second amended complaint.

¶75 At that hearing, the circuit court granted Schiewe’s motion to dismiss
Galloway’s zoning violation claim and statutory private nuisance fence claim. The
court denied Schiewe’s motion to dismiss the interference with property claim under

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WIS. STAT. § 844.01 and the common law private nuisance claim. The court
concluded that the first amended complaint met the pleading requirements in WIS.
STAT. § 844.16 (alleging the plaintiff’s interest, the nature of the alleged injury, and
the amount of damages sought) in support of the interference with property claim.
The court concluded that the complaint also sufficiently alleged the elements of a
common law private nuisance claim (obstruction of view that interfered with use
and enjoyment of property, caused significant harm to the ordinary person, was
intentionally caused, and was unreasonable).

¶76 The circuit court then noted that, while the claims sufficiently pled
included both claims founded in law to be tried to a jury and claims founded in
equity to be tried by the court, the remedies sought appeared to be founded only in
equity. Accordingly, the court granted Galloway’s request to file a second amended
complaint to clarify the remedies sought and the proposed manner of trial
proceedings, but said, “I’m not allowing any[ ]more claims to be introduced.” In
the written order that followed, the court stated that it granted Galloway’s request
to file a second amended complaint “for purposes of clarifying the remedies
[Galloway] seeks but [Galloway] shall not add additional legal claims.”

¶77 In Galloway’s counsel’s letter to the circuit court filed along with the
second amended complaint in December 2020, counsel advised:

As the Court instructed, we have not added any additional
parties or claims. My client does, however, expressly
reserve the right to seek permission to amend the complaint
to add additional claims and parties as may be necessary to
fully litigate this matter and as may be discovered during the
course of discovery. Of course, any such requests would
comply with WIS. STAT. § 802.09(1).

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¶78 In the second amended complaint, Galloway added the following
allegation that was not in his first amended complaint: that in April 2018 Galloway
promised that his new buildings would not block Schiewe’s views, and Schiewe
promised that he would not block Galloway’s views. Galloway also expanded on
the allegations he had made in his first amended complaint to show that Schiewe
constructed the two pole buildings to coerce Galloway into selling the property to
Schiewe, in further support of the claims in the first amended complaint. Galloway
alleged the same claims as in the first amended complaint (including the two claims
that the circuit court had dismissed, to preserve those claims for appeal), and sought
the same remedies as in the first amended complaint.

¶79 The litigation described immediately above took place in the LLC
case. In April 2021, Galloway commenced the personal case, filing a new complaint
alleging property damage caused by crime and intentional infliction of emotional
distress, along with the fraud and misrepresentation claims. The new complaint
sought personal damages and attorney fees. The new complaint stated: “Out of
respect for the Court’s ‘no new claims’ order, Galloway commences this new action
to pursue relief personal to him. Galloway will seek permission to consolidate this
action with the LLC Litigation, should the Court deem that appropriate in light of
its ‘no new claims’ order.”

¶80 Along with the new complaint, Galloway filed a motion to consolidate
the LLC case and the personal case. In his motion, Galloway stated:

Out of respect for the Court’s “no new claims” order,
Galloway commenced the Personal Litigation as a new
action, instead of seeking leave to amend its pleadings in the
LLC Litigation.

… In the Personal Litigation, … Galloway seeks
damages personal to him caused by … Schiewe’s false

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statements and his outrageous and intentional decision to
build spite structures to damage not only Galloway’s
property, but also Galloway himself.

….

For the foregoing reasons, V.A. House and Galloway
respectfully request that—should the Court deem it
appropriate to revisit its “no new claims order”—the
Personal Litigation and LLC Litigation be consolidated and
that the consolidated action proceed as one matter.

¶81 The circuit court granted the motion to consolidate. The court held a
hearing on Galloway’s motion to include the newly alleged claims in a consolidated
second amended complaint, and Schiewe’s motion to dismiss the newly alleged
claims on the ground that those claims violated the court’s no new claims order.

¶82 At that hearing, the circuit court denied Galloway’s motion to include
the fraud and misrepresentation claims in a consolidated second amended
complaint, and dismissed those claims without prejudice. The court granted
Galloway’s motion to include the property damage caused by crime and intentional
infliction of emotional distress claims in a consolidated second amended complaint.
The court explained that those two claims were supported by previously pleaded
allegations and directly related to the factual allegations regarding the interference
with property and common law private nuisance claims that the court had allowed
to proceed to trial.

¶83 The circuit court then stated that, in contrast, the fraud and
misrepresentation claims were based on newly pleaded factual allegations relating
to events in early 2018. The court stated that the fraud and misrepresentation claims
were based on different circumstances and different legal theories that were
factually distinguishable from and not supported by previously pleaded facts and

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claims. The court concluded that the fraud and misrepresentation claims were
“brought in clear contradiction” of the no new claims order, and prohibited
Galloway from including those claims in a consolidated second amended complaint
“for that reason.” The court noted that it had issued the no new claims order to
control the litigation and to keep the litigation on track heading to trial, partly in
response to Galloway’s insistence in the LLC case on getting to trial quickly because
of the continuing trauma he claimed to be suffering. The court indicated that the
fraud and misrepresentation claims, by “articulat[ing] a totally different theory []on
which th[e] case would be proceeding,” contradicted the terms and purpose of the
no new claims order.

¶84 Galloway argues that the circuit court erroneously exercised its
discretion in three respects when it prohibited him from including the fraud and
misrepresentation claims in a consolidated second amended complaint. We reject
Galloway’s arguments as follows.

¶85 Galloway argues that the circuit court erred in interpreting the no new
claims order “to apply broadly to any future amendments of the complaint … rather
than solely to the specific amendment that was before the court at the time of the …
order.” Galloway asserts that the no new claims order, “[v]iewed in context,”
applied only to the second amended complaint in which Galloway was to clarify the
remedies sought and the proposed manner of trial proceedings regarding the claims
previously alleged and allowed to go to trial. But no such limitation existed on the
face of the order, which allowed Galloway to amend the complaint to clarify the
remedies he seeks and stated that he “shall not add additional legal claims.”
Galloway himself implicitly relied on the absence of any such limitation when he
moved to dismiss Schiewe’s counterclaim alleging trespass, raised in Schiewe’s

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answer to the second amended complaint, on the ground that the counterclaim
violated that order.

¶86 In support of his argument, Galloway also relies on his counsel’s letter
accompanying the filing of the second amended complaint, quoted above.
However, in that letter, counsel acknowledged that any future amendments were
subject to the circuit court’s “permission.” In denying permission for the inclusion
of the fraud and misrepresentation claims, the court explained why the no new
claims order applied to the fraud and misrepresentation claims and why Galloway’s
request to include those claims “circumvent[ed]” that order. Galloway does not
show that the court misused its discretion, only that he seeks, for purposes of his
cross-appeal, to interpret the order differently.

¶87 Galloway also argues that the circuit court erred in not recognizing
that at least some facts supporting the fraud and misrepresentation claims were
alleged in the second amended complaint.6 However, this argument does not
address the focus of the court’s decision on the fact that, in seeking to amend the
second amended complaint to include the fraud and misrepresentation claims,
Galloway violated the no new claims order prohibiting Galloway from raising new
claims.

¶88 Galloway also argues that the circuit court “unreasonably weighed the
factors as to whether to permit amendment of the complaint” in its interests-of-
justice analysis. Galloway specifically refers to undue delay, changed
circumstances, and lack of prejudice, but he cites no Wisconsin law requiring the

6
We observe that Galloway’s counsel acknowledged in the circuit court that many if not
all of the allegations supporting the fraud and misrepresentation claims had not been pleaded in the
second amended complaint.

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court to consider these factors. Moreover, he does not address the actual reason that
the court gave for its decision, which was that the raising of the fraud and
misrepresentation claims violated the court’s no new claims order. See Trispel, 89
Wis. 2d at 738 (“the interests of justice favor the compliance with court orders
designed to prevent the unnecessary protraction of litigation”). In any event,
Galloway does not point to, and we do not readily discern, any part of the record
showing that he made an argument based on these factors in the circuit court and,
therefore, he has forfeited them on appeal. See Northbrook Wis., LLC v. City of
Niagara, 2014 WI App 22, ¶20, 352 Wis. 2d 657, 843 N.W.2d 851 (“Arguments
raised for the first time on appeal are generally deemed forfeited.”).

¶89 In sum, Galloway fails to show that the circuit court erroneously
exercised its discretion when it prohibited him from including the fraud and
misrepresentation claims in a consolidated second amended complaint.

B. Disallowance of Punitive Damages

¶90 Punitive damages “‘are designed to hurt in order to punish and to
deter.’” Tucker v. Marcus, 142 Wis. 2d 425, 437, 418 N.W.2d 818 (1988) (quoted
source omitted); see also WIS. STAT. § 895.043(3) (to receive punitive damages, a
plaintiff must show “that the defendant acted maliciously toward the plaintiff or in
an intentional disregard of the rights of the plaintiff”). But, “punitive damages
cannot be awarded in the absence of actual damage.” Tucker, 142 Wis. 2d at 438-
39. Accordingly, “punitive damages are not available whe[n] there has been no
‘award’ of actual damages,” meaning when there has been no award of

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compensatory damages “recoverable in accordance with an order for judgment.”7
Id. at 439. In other words, punitive damages are not available in the absence of the
“actual recovery of compensatory damages for injury suffered.” Id. at 440-41; see
also Groshek v. Trewin, 2010 WI 51, ¶¶4, 29, 33, 325 Wis. 2d 250, 784 N.W.2d
163 (adopting rule in Tucker that punitive damages are not available when “there is
no award of compensatory damages”). “Whether punitive damages are available is
a question of law and is thus reviewed de novo.” Groshek, 325 Wis. 2d 250, ¶11.

¶91 Here, the jury awarded compensatory damages on Galloway’s private
nuisance claim for the loss of fair market value; the jury awarded no compensatory
damages for loss of use or enjoyment. Galloway subsequently requested that the
circuit court order abatement of the nuisance by ordering removal of the two pole
buildings that caused the nuisance. In its order for entry of judgment, consistent
with its oral rulings at the remedies hearings, the circuit court: granted Galloway’s
motion for abatement, ordering the removal of Schiewe’s two pole buildings;
disallowed the jury’s compensatory damages award based on loss of fair market
value because the reduction in fair market value due to the construction of the two
pole buildings would be remedied by their removal; and disallowed the jury’s
punitive damages award as precluded by the disallowance of the compensatory
damages award.

7
The Restatement (Second) of Torts defines “compensatory damages” as “the damages
awarded to a person as compensation, indemnity or restitution for harm sustained by [the person],”
RESTATEMENT (SECOND) OF TORTS § 903 (1979), and this has long been the law in Wisconsin, see
White v. Benkowski, 37 Wis. 2d 285, 290, 155 N.W.2d 74 (1967) (“compensatory damages are
given to make whole the damage or injury suffered by the injured party”). Cf. Vogel v. Grant-
Lafayette Elec. Coop., 201 Wis. 2d 416, 423, 548 N.W.2d 829 (1996) (“This court has previously
adopted the definition of private nuisance set forth in the Restatement (Second) of Torts (1979).”).

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¶92 Galloway makes three arguments in support of his challenge to the
circuit court’s disallowance of the jury’s punitive damages award: (1) Galloway
suffered a compensable loss of use or enjoyment of his property as a matter of law;
(2) there is no common law bar to punitive damages in the circumstances here in
which Galloway did not receive the jury’s compensatory damages award because
of his election of the remedy of abatement; and (3) if there is a common law bar, we
should clarify the law in light of the “modern realities of practice and procedure.”
We address and reject these arguments in turn.

1. No Compensable Loss of Use or Enjoyment

¶93 Galloway argues that he suffered a compensable loss of use or
enjoyment of his property as a matter of law and that the circuit court erroneously
concluded the contrary. We reject this argument as unsupported by the record.

¶94 As stated, the jury awarded compensatory damages in the amount of
$300,000 for loss of fair market value of the property, and no compensatory
damages for loss of use or enjoyment of the property. The circuit court determined
that Galloway’s requested remedy of abatement requiring the removal of the two
pole buildings eliminated the basis for the reduction in fair market value and,
accordingly, amended the compensatory damages award to zero.

¶95 Galloway argues that he suffered loss of use and enjoyment of his
property as a matter of law, because it was that loss that accounted for the loss of
fair market value. This argument mischaracterizes the record. As summarized
above, Galloway testified about the loss of views due to the construction of the two
pole buildings as interfering with the use and enjoyment of his property, one of the
appraisers testified that it was the loss of views that caused the loss of fair market

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value, and the jury found that Galloway suffered a loss of fair market value, but no
compensable loss of use and enjoyment, of his property. In other words, the jury
found that the only damage that Galloway suffered was that his property was worth
less, and that he himself suffered no loss of use and enjoyment of his property.
Galloway’s argument that he necessarily also suffered the loss of use or enjoyment
has no support in the record.

¶96 Galloway argues that the jury likely “lumped … together” damages
for loss of use or enjoyment with the damages it awarded for loss of fair market
value. In support of this argument, Galloway cites the circuit court’s response to
the jury’s question about the verdict during its deliberations. The verdict form asked
the jury, if it found a nuisance, to answer the following question:

What sum of money will fairly and reasonably compensate
[Galloway] for the nuisance:

Loss of use and enjoyment through date of trial:
_________________ ($)

Loss of fair market value:
_________________ ($)

During its deliberations, the jury asked: “Do we need to assign value to loss of
enjoyment & use AND fair market value OR one or the other if appropriate[?]” The
court responded: “You may provide answers to the damages question … by
assigning either: Loss of Fair Market Value or Loss of past use and enjoyment or
Loss of both fair market value and loss of past use and enjoyment.” There is no part
of this response that instructed the jury that it could group values for both losses
under one heading or the other.

¶97 Galloway also supports this “grouping together” argument as a
possible explanation for why the $300,000 awarded for loss of fair market value

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exceeded his appraiser’s testimony that the loss of fair market value was $216,000.
We reject this aspect of his argument as speculative.

¶98 Galloway further argues that he is entitled to compensatory damages
because he will continue to suffer loss of use or enjoyment of his property from the
time of trial through the time of abatement. We have already rejected this
argument’s premise—that Galloway suffered loss of use or enjoyment of his
property through the date of trial. There is no basis for damages for his continued
suffering of a loss that he had not suffered in the first instance.

2. Common Law Bar to Punitive Damages

¶99 Galloway argues that the rule articulated in Karns v. Allen, 135 Wis.
48, 58, 115 N.W. 357 (1908), that a court acting in equity may award only
compensatory damages and may not award punitive damages, does not bar punitive
damages here. The circuit court here did reference the substance of the Karns rule
and expressed its concerns with the rule’s continued application. However, the
court ultimately disallowed punitive damages based on the rule articulated in
Tucker, 142 Wis. 2d at 439, and reaffirmed in Groshek, 325 Wis. 2d 250, ¶¶4, 28-
30, that punitive damages cannot be awarded in the absence of an award of
compensatory damages. Accordingly, we do not address Galloway’s arguments that
the Karns rule does not apply or that we should “clarify” or “eschew” that rule. See
Groshek, 325 Wis. 2d 250, ¶¶29-30 (ruling that no punitive damages could be
awarded in that case because no compensatory damages were awarded, and leaving
the continued vitality of the Karns rule “for another day”).

¶100 Galloway also argues that the rule articulated in Tucker and
reaffirmed in Groshek, barring punitive damages when no compensatory damages

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have been awarded, does not bar punitive damages here, for four reasons. First,
Galloway asserts that here, compensatory damages “were sought, awarded, and
legally recoverable.” It is undisputed that Galloway sought compensatory damages
and that the jury awarded compensatory damages. But, as we now explain, the
record shows that compensatory damages were not recoverable.

¶101 The compensatory damages award was for the injury caused by the
construction of the two pole buildings, and the jury found that such injury was only
a loss of the fair market value of Galloway’s property. The circuit court determined
that such injury, loss of fair market value, would be eliminated by the removal of
the two pole buildings required by the court’s abatement order; that is, the fair
market value of Galloway’s property would no longer be impaired.8 In other words,
with the abatement order, the injury found by the jury no longer existed. Indeed,
Galloway agreed in the circuit court that any loss of fair market value awarded by
the jury would be eliminated by abatement.

¶102 Consistent with its determination, the circuit court disallowed the
compensatory damages award in its order for judgment. Accordingly, Galloway
lost the legal right to recover the compensatory damages. See Tucker, 142 Wis. 2d
at 438-39 (concluding that, although the jury found “there had been injury suffered,”
“punitive damages were inappropriately allowed” because the plaintiff could not
recover “actual damages” “in accordance with an order for judgment”). Contrary
to Galloway’s assertion, there was no “actual recovery of compensatory damages

8
The circuit court explained its reduction of the jury’s compensatory damages award to
zero as follows. The jury’s award of compensatory damages was based exclusively on loss of fair
market value, and that loss of value was attributed to the existence of the two pole buildings. When
the court ordered that the two pole buildings be razed, the basis for the compensatory damages
award was removed, and, therefore, the court had no basis “to act upon the Jury’s award of
damages.”

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for injury suffered.” See id. at 440; cf. id. at 455 (Heffernan, C.J., dissenting)
(“Today’s majority holds that … no punitive damages may be awarded in the
absence of a recovery for compensatory damages.”).

¶103 Second, Galloway asserts that the abatement ordered by the circuit
court “was a form of compensatory damages” because abatement compensated him
for the loss of his property’s fair market value by increasing its fair market value.
In support of this assertion, Galloway cites the definition of compensatory damages
adopted by Wisconsin courts, see footnote 7 above, as including “compensation,
indemnity, and restitution.” Galloway seems to suggest that this asserted
consequence of abatement constitutes compensation under this definition. We
question the logic of such a suggestion. More significantly, the underlying assertion
misrepresents the record. As explained above, the court’s abatement order
eliminated the jury’s compensatory damages award. Abatement restored
Galloway’s property’s fair market value, rather than compensating him for that loss.

¶104 Third, Galloway asserts that he was entitled to punitive damages,
regardless of the common law bar, under the real estate statutes, WIS. STAT.
§§ 840.01, 840.03, 844.01, 844.19, and 844.20, which, according to Galloway,
provide for equitable remedies and damages in real estate actions.9 Galloway seems
to suggest that these statutes abrogate the common law. See, e.g., Fuchsgruber v.

9
For example, both damages and equitable remedies are available under WIS. STAT.
§ 844.01(1) (permitting any person owning or claiming interest in real property to bring an action
claiming interference with the property or the person’s interest, “to redress past injury, to restrain
further injury, to abate the source of injury, or for other appropriate relief”), and WIS. STAT.
§ 840.03, see Country Visions Coop. v. Archer-Daniels-Midland Co., 2020 WI App 32, ¶44 n.13,
392 Wis. 2d 672, 946 N.W.2d 169 (noting that compensatory damages and equitable remedies are
available under § 840.03(1), which permits “[a]ny person having an interest in real property [to]
bring an action relating to that interest, in which the person may demand … singly, or in any
combination” 15 remedies including equitable remedies and damages).

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Custom Accessories, Inc., 2001 WI 81, ¶25, 244 Wis. 2d 758, 628 N.W.2d 833
(“[A] statute does not abrogate a rule of common law unless the abrogation is clearly
expressed and leaves no doubt of the legislature’s intent…. To accomplish a change
in the common law, the language of the statute must be clear, unambiguous, and
peremptory.”). But Galloway does not develop an argument to that effect, and we
reject this assertion on that basis.

¶105 Fourth, Galloway asserts that “attorney fees or nominal damages, if
awarded, would constitute compensatory damages” entitling him to punitive
damages. We address and reject his argument that the circuit court erroneously
denied his request for attorney fees separately below. We reject as unsupported
Galloway’s assertion here that the court erroneously “failed to properly consider”
his request for nominal damages for the harm that he will continue to suffer “from
trial until abatement.” As explained above, the only harm found by the jury was
loss of fair market value, and that harm was eliminated by the court’s abatement
order.

¶106 In sum, Galloway fails to show that the circuit court erroneously
disallowed punitive damages.

C. Denial of Attorney Fees

¶107 Galloway argues that the circuit court erroneously exercised its
discretion in denying his request for attorney fees pursuant to Nationstar Mortgage
LLC v. Stafsholt, 2018 WI 21, 380 Wis. 2d 284, 908 N.W.2d 784. In Nationstar,
our supreme court ruled that circuit courts may award attorney fees to prevailing
parties in equitable actions “as part of an equitable remedy ‘in exceptional cases and
for dominating reasons of justice.’” Id., ¶44 (quoted source omitted). “The circuit

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court’s decision to grant equitable remedies is reviewed for an erroneous exercise
of discretion.” Id., ¶23. “A circuit court properly exercises discretion when it
applies a correct legal standard to the facts of record” and “articulate[s] its
reasoning” to reach a result that a reasonable judge could reach. Id., ¶¶35, 37.

¶108 Nationstar involved a foreclosure action against a homeowner for
defaulting on a mortgage. Id., ¶10. After a bench trial, the circuit court found that
the servicer of the loan improperly caused the property owner to default through the
servicer’s poor record-keeping and business practices, and that the property owner
acted throughout in good faith and reliance on the servicer’s misrepresentations.
Id., ¶35. The court concluded that the egregious nature of the servicer’s conduct in
handling the mortgage and foreclosure action entitled the property owner to attorney
fees. Id. The supreme court concluded that the circuit court properly exercised is
discretion in awarding attorney fees “‘for dominating reasons of justice,’” because
the servicer’s misrepresentations caused the dispute, the servicer filed the
foreclosure action when the property owner followed the servicer’s directions, and
the servicer “doubled down on its bad faith … before trial.” Id., ¶37 (quoted source
omitted).

1. Additional Background

¶109 The circuit court addressed Galloway’s request for attorney fees at
two hearings on remedies and one telephone status conference. At the first remedies
hearing, the court considered the following in support of an award of attorney fees:
the jury found that Schiewe acted with malicious disregard of Galloway’s rights and
that Schiewe intended to but did not cause Galloway emotional harm; the evidence
supported the jury’s findings, specifically that Schiewe acted through threats and
construction of the two pole buildings to compel Galloway to sell his property to

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Schiewe; Galloway could not recover the $1,000,000 in punitive damages awarded
by the jury; and, after trial, Schiewe erected the fuel depot between the two pole
buildings.

¶110 The circuit court then considered the factors against awarding attorney
fees: Nationstar involved parties in uneven litigation positions with uneven
resources and a company acting with, at best, institutional malfeasance; here, the
parties were on a substantially equal financial and practical footing, given how much
they each spent on their buildings and attorneys; Galloway unsuccessfully tried to
add new claims in violation of the court’s no new claims order and lost at trial on
two of his three claims for compensation; Schiewe incurred significant litigation
expenses defending claims that were disallowed and must pay to take down the two
pole buildings, though he put himself in that position; Galloway constructed in his
own sight line his own pole buildings on his other property, which were as large as
or larger than Schiewe’s two pole buildings; and Galloway’s independent medical
examination conduct was obstructive. The court concluded that, overall, Galloway
was not like the property owner in Nationstar, and that difference and the other
distinguishing circumstances established that attorney fees were not appropriate.

¶111 At the telephone status conference, the circuit court elaborated on its
finding that the parties were in substantially equal financial positions. The court
explained that what was important was not which of the parties had more resources
than the other, but that both parties “have resources that are significantly in excess
of what most individuals would have at their disposal.” The court noted that
Galloway had spent eight to ten million dollars on his property, which required
significant resources, and that the record showed that Schiewe also had significant
resources. Accordingly, the court considered them to be on equal footing and in

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comparatively equal positions. The court contrasted the parties’ relative financial
positions with Nationstar, in which a national corporation placed a mortgagor “in a
position of great fiscal inequity.” The court noted that the great gap in the
corporation’s and the mortgagor’s relative financial positions was important to the
circuit court and our supreme court, and that no such gap was present here.

¶112 At the second remedies hearing, the circuit court reiterated that
Nationstar involved parties in substantially different financial and organizational
positions—a “corporate giant” versus “a simple … mortgagor”—while here the
parties were on a financially equal footing and relatively equally positioned. The
court noted that Nationstar involved a national corporation that abused its relatively
stronger position, and a mortgagor who was “given a four-year runaround” and was
“flat-out misled.” The court stated that, in contrast, while Schiewe’s conduct here
was worse than Galloway’s, Galloway’s conduct was also troubling in terms of
equity: (1) the focus of the case was the loss of Galloway’s views of open fields, yet
he built within his views a group of pole buildings of the same type that he was
critical of Schiewe for having built; (2) Galloway engaged in problematic
obstructionist conduct at his independent medical examination regarding the
intentional infliction of emotional distress claim that the jury rejected; and
(3) Galloway filed a new lawsuit that violated the court’s no new claims order in the
LLC case involving the two pole buildings, and then filed another new lawsuit after
verdict with new legal theories. The court concluded that this case boiled down to
what the jury found—that Schiewe was wrong and caused a loss of Galloway’s
property’s fair market value—but that, given Galloway’s conduct and litigation
positions, the overall equities did not support awarding attorney fees under
Nationstar.

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2. Analysis

¶113 The above summary of the circuit court’s decision to deny Galloway’s
request for attorney fees under Nationstar establishes that the court applied the
proper standard of law to the facts of record, explained its reasoning, and reached a
conclusion that a reasonable judge could reach. In other words, the record
establishes that the court did not erroneously exercise its discretion in declining to
award attorney fees in equity under Nationstar. We now explain why Galloway’s
arguments to the contrary fail.

¶114 Galloway argues that the circuit court erred as a matter of law by
balancing the equities contrary to Nationstar, which, according to Galloway,
focused solely on the bad faith conduct of the wrongdoer and the need to make the
victim whole. This argument interprets Nationstar too narrowly, as imposing a two-
factor test that mandates attorney fees based on only those two factors. To the
contrary, our supreme court in Nationstar stressed the need for a circuit court to
consider all of the circumstances in order to determine whether, in the exercise of
its discretion, attorney fees are warranted. See Nationstar, 380 Wis. 2d 284, ¶¶28,
30 (a circuit court acting in equity has “broad flexibility” in awarding attorney fees
in order to “‘meet the requirements’” of the case before it (quoted source omitted)).

¶115 This argument also disregards both the detailed findings by the circuit
court in Nationstar regarding both of the parties’ actions and the court’s implicit
balancing of the equities between them based on those findings. See id., ¶¶35-38.
It was only after engaging in that fact-finding and balancing that the circuit court
and our supreme court determined that it was appropriate to award attorney fees to
make the mortgagor whole. Id. Here, the circuit court also made findings,
consistent with the jury’s verdict and the evidence presented at trial, that Schiewe’s

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conduct was in bad faith and malicious, such that abatement was an appropriate
remedy. But, as to attorney fees, the court explained that the circumstances here
differed in significant ways from the circumstances in Nationstar, and that, in
balancing the equities, those differences warranted a different outcome.

¶116 Galloway also relies on inapposite case law to support his argument
that there should not be any balancing of the equities because Schiewe acted
intentionally in creating the private nuisance. See Bruck Law Offices, S.C. v.
KSMS Our House, LLC, No. 2018AP1118, unpublished slip op., ¶28 (WI App
Dec. 26, 2018) (in the course of finding facts showing that a party in a garnishment
action acted in bad faith, the court considered the equities including the facts relating
to that party’s flagrant abuse of the judicial process and the other party’s good faith
conduct in response); First Credit Corp. v. Behrend, 45 Wis. 2d 243, 250, 172
N.W.2d 668 (1969) (when the borrower lied in applying for the loan and the lender
knew about the lie, the court declined to balance equities in determining that a debt
was properly discharged in bankruptcy because both the borrower and the lender
acted in bad faith); Laatsch v. Derzon, 2018 WI App 10, ¶26, 380 Wis. 2d 108, 908
N.W.2d 471 (applying case law “permitting a circuit court to exercise its equitable
authority to surcharge a trustee, guardian, or personal representative for attorney
fees incurred by another party as a result of the trustee’s, guardian’s, or personal
representative’s fraud, bad faith, or deliberate dishonesty”).

¶117 Galloway argues that, because “Schiewe ha[d] no equity,” the scale
necessarily tipped in Galloway’s favor. However, Nationstar does not compel such
a result, and we see no language in Nationstar that takes away a circuit court’s
discretion solely because one party has acted in bad faith. Galloway also argues
that the equities were all in Galloway’s favor because he was in a significantly worse

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financial position from litigating to protect his property rights against Schiewe’s bad
faith and, therefore, the circuit court should have awarded attorney fees in order to
restore him to the financial position he was in before Schiewe constructed the two
pole buildings. Again, we see no language in Nationstar that requires a circuit court
to award attorney fees solely because one party’s bad faith conduct resulted in the
other party’s being in a significantly worse financial position. Rather, the analysis
in Nationstar makes it clear that a proper exercise of discretion requires that the
circuit court consider all of the relevant facts and equities regarding the conduct and
relative positions of the parties in order to determine whether, looking at the
circumstances as a whole, the circumstances amount to an “‘exceptional case[]’”
such that “‘dominating reasons of justice’” warrant an award of attorney fees. See
Nationstar, 380 Wis. 2d 284, ¶44 (quoted source omitted).

¶118 Galloway’s “matter of law” argument is essentially an argument that
the circuit court here incorrectly balanced the equities and should have exercised its
discretion differently. We could simply note that each error that Galloway asserts
the court made is merely an argument that the court should have considered and
balanced a fact differently. However, for the sake of completeness, we briefly
address and reject each asserted error.

¶119 Galloway argues that the circuit court erred in saying that both parties
were responsible and faulting both parties. However, the court clearly stated that,
as found by the jury, Schiewe was responsible. The court did not “fault” Galloway,
but instead addressed facts other than “fault” that tipped the equities against
Galloway.

¶120 Galloway argues that the circuit court erred in considering that
Galloway did not succeed on all of his claims. However, Galloway does not cite

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relevant legal authority supporting the proposition that the court erred in considering
that Galloway did not prevail on all of his claims as part of the court’s consideration
of the equities. The case law that Galloway cites interprets federal and state statutes
providing for attorney fee awards to a prevailing party. See Friends of Frame Park,
U.A. v. City of Waukesha, 2022 WI 57, 403 Wis. 2d 1, 976 N.W.2d 263
(interpreting “prevailing party” in the Wisconsin Public Records Law);
Buckhannon Bd. & Care Home, Inc. v. West Va. Dep’t of Health and Hum. Res.,
532 U.S. 598 (2001) (interpreting fee-shifting provisions in the Fair Housing Act
and the Americans with Disabilities Act). Galloway cites no case law applying
those interpretations to the common law rule allowing attorney fee awards in
equitable actions “‘in exceptional cases and for dominating reasons of justice.’” See
Nationstar, 380 Wis. 2d 284, ¶44 (quoted source omitted).

¶121 Galloway argues that the circuit court erred in considering that
Schiewe would not receive attorney fees for defending against Galloway’s
unsuccessful claims. However, the court expressly stated that Schiewe’s “attorney’s
fees are not in any way, shape, or form able to be considered.” The record read as
a whole confirms that the court did not accord this any weight in considering the
factors for and against awarding attorney fees.

¶122 Galloway argues that the circuit court erred in considering that
Schiewe has to raze his two pole buildings, which cost Schiewe “close to three
quarters of a million dollars” to construct. The record does show that the court
referenced this fact. However, the record also shows that the court acknowledged
that “Schiewe put himself in that position.” And the record read as a whole shows
that the court considered this fact in support of its determination that Schiewe and
Galloway were in relatively equal financial positions in terms of the money they

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spent to develop their properties. Galloway does not explain why the court erred in
considering this evidence regarding the parties’ financial positions for that purpose.

¶123 Galloway argues that the circuit court erred in considering Galloway’s
litigation conduct, specifically, that there was no factual basis for the court’s
comments regarding the independent medical examination and Galloway filing new
claims after the no new claims order. However, the court addressed Galloway’s
independent medical examination after viewing the video recording of that
examination, and noted that “it was incredibly problematic and reflective of the way
that Mr. Galloway was attempting to impede the rightful process that Mr. Schiewe
and his counsel had to discover what was taking place in the case and to get an
understanding of the emotional distress claim.” The court had imposed sanctions
as a result of Galloway’s misconduct. Galloway’s attempts to explain his conduct
during that examination do not render the court’s assessment of his conduct clearly
erroneous. And, we have explained above why the court did not erroneously
exercise its discretion in determining that the new claims violated the no new claims
order.

¶124 Galloway argues that the circuit court erred in considering that
Galloway constructed several pole buildings on his 30-acre property in the sight line
of his 1.2-acre property (on which he had constructed his house), and in comparing
them to the pole buildings constructed by Schiewe as equally “scarring” the
agricultural landscape. However, while Galloway would characterize his own
buildings differently, he does not dispute that all of the buildings were pole
buildings and were in the sight line of his 1.2-acre property.

¶125 Galloway argues that the circuit court erred in considering Schiewe
and Galloway as financial equals. The record summarized above establishes that

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the court extensively explained why it found that Schiewe and Galloway were
generally financial equals in terms of their investments in their properties and their
expenditures on this litigation, and more importantly, that they were not positioned
at all similarly to the parties in Nationstar in terms of their relative financial and
economic resources. Galloway argues that the parties’ relative financial positions
are not a legal factor under Nationstar, but that consideration clearly underlies
several of the circuit court’s factual findings in that case and the circuit court’s and
the supreme court’s consideration of the need, in balancing the equities, to make the
mortgagor whole. See Nationstar, 380 Wis. 2d 284, ¶¶35-36.

¶126 Finally, Galloway argues that the circuit court erred in not awarding
attorney fees based solely on what he calls Schiewe’s “litigation misconduct,”
specifically, Schiewe’s placing a fuel depot between the two pole buildings after the
jury returned its verdict. However, the record shows that the court did consider
Schiewe’s placement of the fuel depot as a factor that weighed against Schiewe.
That the court did not determine that this factor outweighed the other factors it
considered in balancing the equities was within its discretion.

¶127 In sum, Galloway fails to show that the circuit court erroneously
exercised its discretion in denying his request for attorney fees.

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III. Galloway’s Appeal in Appeal No. 2024AP2255

¶128 Galloway argues that the circuit court erroneously exercised its
discretion in denying his motion for relief from judgment under WIS. STAT.
§ 806.07(1)(c), (g), and (h).10

¶129 Under WIS. STAT. § 806.07(1), a circuit court may “relieve a party or
legal representative from a judgment, order or stipulation” if the circumstances
satisfy one of the statute’s various subsections. Under the subsections at issue here,
the moving party must show that relief is warranted for one of the following reasons:
“(c) Fraud, misrepresentation, or other misconduct of an adverse party;” “(g) It is
no longer equitable that the judgment should have prospective application;” or
“(h) Any other reasons justifying relief from the operation of the judgment.”
§ 806.07(1).

10
Galloway also argues that this court should consider four documents as supplements to
the record. Galloway had moved in the circuit court to supplement the record to include the four
documents, and the court denied the motion because there was no need for the information in the
documents to be in the record. Galloway then filed the same motion in this court, and we granted
his motion to supplement the record to include the four documents and directed the parties to
address in their briefs whether we should consider the documents.

The four documents include two notices of hearing and two notices of electronic service.
Galloway asserts that the four documents show that the circuit court proceedings on his WIS. STAT.
§ 806.07 motion “were conducted in a very time-compressed manner,” and offers them to support
his due process argument regarding the court’s denial of his § 806.07 motion, which we address
later in this opinion. Schiewe responds that it is apparent from information already in the record
that the circuit court proceedings were conducted “in a very time-compressed manner” and,
therefore, there is no need for the information in the four documents to be in the record. Schiewe
argues that the circuit court properly exercised its discretion in denying Galloway’s motion to
supplement the record on that basis.

We do not review the circuit court’s denial of Galloway’s motion. Rather, having granted
Galloway’s motion to supplement, we accept Galloway’s references in his appellate briefing to the
information in the documents. However, as apparent in our discussion later in this opinion, that
information does not affect our analysis of Galloway’s due process argument regarding the circuit
court proceedings based on the information already in the record.

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¶130 We review a circuit court’s decision on a motion for relief from
judgment or order for an erroneous exercise of discretion. Werner v. Hendree, 2011
WI 10, ¶59, 331 Wis. 2d 511, 795 N.W.2d 423. “The term ‘discretion’ contemplates
a process of reasoning which depends on facts that are in the record or are
reasonably derived by inference from the record, and yields a conclusion based on
logic and founded on proper legal standards.” Shuput v. Lauer, 109 Wis. 2d 164,
177-78, 325 N.W.2d 321 (1982). As we explain, Galloway fails to show that the
circuit court in this case did not exercise its discretion on the basis of the facts, logic,
and proper legal standards.

A. Additional Background

¶131 Galloway filed a motion for relief from judgment under WIS. STAT.
§ 806.07 on July 19, 2024. Galloway alleged that since the entry of the October 27,
2023 judgment, Schiewe had built a fuel depot between his two pole buildings.
Galloway asked that the circuit court amend its abatement order to include the fuel
depot, reconsider its denial of attorney fees in light of the new construction, and
allow the statutory private nuisance fence claim based on the fuel depot.

¶132 On July 24, 2024, the circuit court conducted an off-the-record
telephone conference with the parties. At that conference, the court identified its
concerns regarding the motion for relief and scheduled a hearing for July 29 to
address its concerns and to determine whether it would deny the motion on its face
or whether further hearings were necessary to decide the motion. On July 26,
Galloway filed a brief addressing the court’s concerns, including whether issue
preclusion or judicial estoppel applied to bar Galloway’s motion for relief from
judgment. In his brief, Galloway clarified that he was asking the court to declare

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the fuel depot to be a continuation of the common law private nuisance that the jury
already found existed. Schiewe filed a brief in opposition to the motion for relief.

¶133 The circuit court denied Galloway’s motion for relief at the hearing
on July 29. We relate in detail the court’s remarks explaining its discretionary
decision. The court began by summarizing how it viewed Galloway’s motion in the
context of the “no build” restriction that the court had previously proposed to order.
The court stated that it had restored Galloway’s pristine views by ordering
abatement of the two pole buildings and proposed to protect those views by also
entering a “no build” restriction, but that Galloway asked the court not to enter the
“no build” restriction order. The court noted that, when Galloway made that
request, the court warned Galloway that, without the “no build” restriction order,
Schiewe “[was] not under any legal restriction [not] to put up any[ ]more buildings,”
and Schiewe heard the court give Galloway that warning. The court continued:

Mr. Galloway now comes back, and he has taken a
position that, legally speaking, is 180 degrees removed from
where he was…. [A]fter I removed that [“no build”]
restriction at Mr. Galloway’s request, we have another
structure on the property…. Now he wants me to look at the
fact that there is an additional structure, and, apparently,
what he is now saying is to “go back and yet again look at
Nation[star], because now you see you can further find that
Mr. Schiewe is acting in a degree of nefarious intention,
because there is an additional building, and this is all the
more reason for you to totally reverse the exhaustive analysis
that you went through, finding that I not get my attorney’s
fees, and now this is an additional fact that you have to
consider[.]”

The court concluded, “That’s judicial estoppel in a nutshell.”

¶134 Turning to issue preclusion, the circuit court stated that it had heard
arguments about the fuel depot in the postverdict proceedings when construction of

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the depot had begun, and it had made detailed findings and provided detailed
reasons supporting its denial of Galloway’s request to reconsider the court’s
attorney fees and other decisions in light of that construction. The court concluded
that the fact that the construction was now completed was not a distinction that
rendered issue preclusion inapplicable.

¶135 The circuit court further stated that Galloway could not inject his
claims concerning the fuel depot in this action because the jury had not made any
findings regarding the fuel depot. The court explained that, if it were to grant the
relief that Galloway requested, it would essentially be applying the jury’s prior
verdict to new facts about which the jury had made no findings.

¶136 The circuit court further explained that WIS. STAT. § 806.07 did not
apply because:

[W]hat Mr. Galloway wants me to do is to not provide relief
from the judgment, but to totally change it, to change my
mind that he is not entitled to attorney’s fees under
Nation[star]…. Mr. Galloway is wringing his hands to get
to his attorney’s fees so that he, no doubt, can argue that he
gets his punitive damages.

¶137 Addressing the specific subsections under which Galloway brought
his motion, the circuit court explained that there was no fraud as required by WIS.
STAT. § 806.07(1)(c), because Schiewe merely proceeded to build a structure that
he had a legal right to build. Whether Schiewe engaged in misconduct in doing so
raised new factual issues as to whether the fuel depot was a nuisance, “to be
determined another day.” As to misconduct, the court also reiterated that Schiewe
heard the court tell Galloway that, without the “no build” restriction order, there was
nothing that prohibited Schiewe from putting up any more buildings.

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¶138 The circuit court explained that WIS. STAT. § 806.07(1)(g) would
apply only if Schiewe wanted relief from the judgment’s abatement order, and did
not apply to what was essentially Galloway’s request to reconsider the court’s denial
of attorney fees.

¶139 The circuit court also explained that the motion on its face, which at
most argued that Schiewe built a structure that “maybe” he should have not built,
did not establish the extraordinary circumstances necessary to warrant relief under
WIS. STAT. § 806.07(1)(h).

¶140 The circuit court entered a written decision and order denying the
motion for relief from judgment on August 6, 2024.

B. Analysis

¶141 We discern three parts to the circuit court’s ruling. One part is the
court’s conclusion that the motion is on its face barred by issue preclusion and
judicial estoppel. The second part is that the motion fails because it is based on new
facts that occurred after the jury returned its verdict and the court entered its
judgment. The third part is the court’s conclusion that, as a matter of law, the motion
on its face does not establish grounds for relief under WIS. STAT. § 806.07(1)(c),
(g), or (h), and that no further hearings or argument were necessary in that respect.

¶142 On appeal, Galloway does not challenge the circuit court’s
conclusions based on issue preclusion and on the raising of new facts not considered
by the jury. Accordingly, we deem Galloway to concede that these conclusions by
the court are correct, and we affirm the court’s denial of his motion on that basis.
See West Capitol, Inc. v. Village of Sister Bay, 2014 WI App 52, ¶49, 354 Wis. 2d
130, 848 N.W.2d 875 (explaining that “[f]ailure to address the grounds on which

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the circuit court ruled constitutes a concession of the ruling’s validity”). For the
sake of completeness, we briefly address the challenges Galloway does make as
follows.

¶143 Galloway challenges the circuit court’s conclusion that was based on
judicial estoppel. As presented above, the court’s remarks related to judicial
estoppel focused on the following: Galloway was now taking a position in favor of
a “no build” restriction order prohibiting Schiewe’s new construction; this new
position was inconsistent with his earlier position opposing such an order; and the
court adopted his earlier position by acceding to his request not to enter the “no
build” restriction order originally proposed by the court. See State v. Ryan, 2012
WI 16, ¶33, 338 Wis. 2d 695, 809 N.W.2d 37 (the three elements of judicial estoppel
are: (1) the later position is clearly inconsistent with the earlier position; (2) the facts
are the same in both cases; and (3) the party to be estopped convinced the court to
adopt its earlier position). Galloway’s arguments are difficult to parse, but we
address them as best we understand them and explain why they fail.

¶144 Galloway appears to argue that the circuit court overlooked specific
aspects of the complicated and many-tentacled proceedings in this case in making
its findings as to Galloway’s positions during those proceedings. However,
Galloway does not identify any part of the record showing that the court’s
findings—as to Galloway’s position regarding the “no build” restriction when the
court proposed it, his request that the court not order that restriction, and his position
now seeking in effect such a restriction—are clearly erroneous. Galloway also
appears to argue that Galloway had legitimate reasons for opposing the court’s
proposed “no build” restriction and, therefore, his position then could not be a basis
for concluding that he was judicially estopped from seeking a remedy inconsistent

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with that position now. However, Galloway does not cite legal authority supporting
the proposition that judicial estoppel cannot apply because the party to be estopped
had reason to take the earlier position. Galloway further argues that the court did
not explain the legal basis for its judicial estoppel conclusion, but Galloway does
not specify which element of judicial estoppel the court did not address. 11 The
court’s remarks as presented above included a complete explanation of that basis.

¶145 Galloway also argues that the circuit court erred in addressing why,
taking the motion on its face, it did not establish a basis for relief under WIS. STAT.
§ 806.07(1)(c), (g), or (h). Galloway does not address the substance of this part of
the court’s ruling. Instead, he argues that the court proceeding with this facial
analysis deprived him of due process because he did not have adequate notice of or
opportunity to respond to this part of the court’s ruling, particularly in the
compressed time period from when Galloway filed his motion to when the court
made its ruling. We do not reach this argument because we affirm based solely on
the issues that the court squarely put before the parties at the telephonic conference
before the hearing on the motion, and which Galloway fully briefed before the
hearing.

¶146 In sum, Galloway fails to show that the circuit court erroneously
exercised its discretion in denying his motion for relief from judgment.

11
For the first time in his reply brief, Galloway argues why the three elements of judicial
estoppel were not satisfied. We do not consider those arguments because they come too late. See
Bilda v. County of Milwaukee, 2006 WI App 57, ¶20 n.7, 292 Wis. 2d 212, 713 N.W.2d 661
(stating the “well-established rule” that this court generally does not consider arguments raised for
the first time in the reply brief).

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IV. Galloway’s Appeal in Appeal No. 2023AP986

¶147 Galloway challenges the circuit court’s dismissal of the complaint in
the 2022 case that he commenced after the trial in the 2019 case on his claims
relating to Schiewe’s construction of the two pole buildings.12 To repeat, the new
complaint alleges fraud and misrepresentation claims relating to Schiewe’s
allegedly false promise not to build on the portion of Schiewe’s property within the
sight line of Galloway’s property, and Schiewe’s allegedly false representations
supporting that promise, in return for Galloway’s promise not to build on the portion
of his property within the sight line of Schiewe’s property. Galloway argues that
the court erroneously dismissed the new complaint as barred by claim preclusion.
We now summarize the applicable standard of review and legal principles, next
present in detail the allegations in the new complaint and the circuit court’s ruling,
and then explain our conclusion that claim preclusion bars the claims in the new
complaint and reject Galloway’s arguments to the contrary.

¶148 Whether claim preclusion applies is a question of law that we review
independently. Kruckenberg v. Harvey, 2005 WI 43, ¶17, 279 Wis. 2d 520, 694
N.W.2d 879. “The doctrine of claim preclusion provides that a final judgment on
the merits in one action bars parties from relitigating any claim that arises out of the
same relevant facts, transactions, or occurrences.” Id., ¶19. “When the doctrine of
claim preclusion is applied, a final judgment on the merits will ordinarily bar all
matters ‘which were litigated or which might have been litigated in the former
proceedings.’” Id. (quoted source omitted). “In effect, the doctrine of claim

12
For ease of reading, in this section we generally refer to the 2022 case as the new case
and to the complaint filed in that case as the new complaint; and we generally refer to the 2019
case as the first case and to the operative complaint in that case as the second amended complaint.

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preclusion determines whether matters undecided in a prior lawsuit fall within the
bounds of that prior judgment.” Id., ¶22.

¶149 The doctrine of claim preclusion has three elements: “‘(1) identity
between the parties or their privies in the prior and present suits; (2) prior litigation
resulted in a final judgment on the merits by a court with jurisdiction; and
(3) identity of the causes of action in the two suits.’” Id., ¶21 (quoted source
omitted). The party asserting claim preclusion bears the burden of proof on each of
these elements. Pasko v. City of Milwaukee, 2002 WI 33, ¶16, 252 Wis. 2d 1, 643
N.W.2d 72.

A. Additional Background

¶150 The new complaint alleges claims of fraud, negligent
misrepresentation, and strict liability misrepresentation. The new complaint alleges
the following facts in support of these claims.

¶151 When Galloway and Schiewe first met in April 2018, Schiewe asked
Galloway not to build on Galloway’s property so as to “maintain an uninterrupted
view” from Schiewe’s property towards Galloway’s property. In response,
Galloway told Schiewe that Galloway would have to relocate the buildings
Galloway planned to build on some of his property, which would result in increased
construction costs. Schiewe told Galloway that Schiewe’s future construction on
Schiewe’s property would not block the views from Galloway’s property and that
his only plan for his property in the sight line of Galloway’s property was to remove
an existing wooden shed left by the prior owner. Galloway promised not to block
Schiewe’s views towards Galloway’s property if Schiewe would also promise not
to block any of the views from Galloway’s property. Schiewe expressed his

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gratitude to Galloway and promised in return that Schiewe “would not block any of
Galloway’s views with any of Schiewe’s construction.”

¶152 Galloway asked Schiewe if they should reduce their promises to
writing, and Schiewe responded that a written agreement was not needed because
an existing document on file at the Waushara County courthouse restricts any future
construction on Schiewe’s property within the sight line of Galloway’s property,
aside from replacement of the existing wooden shed. Galloway believed Schiewe
and agreed that there was no need to enter into a written contract. The two men then
shook hands.

¶153 Galloway proceeded to construct six buildings on his property in
“revised locations” out of the sight line of Schiewe’s property. Galloway spent
more than $3,000,000 to construct the buildings on his property, including the house
on the 1.2-acre parcel.

¶154 In 2019, Schiewe commenced construction of two pole buildings on
his property adjacent to Galloway’s property, and Galloway filed the initial
complaint regarding the construction of the two pole buildings in December 2019.
Galloway learned at Schiewe’s deposition in August 2021 that, contrary to the
promise Schiewe made at the April 2018 meeting, Schiewe had planned to construct
the two pole buildings at issue in the 2019 case “in close proximity to Galloway’s”
property since Schiewe first bought his property in 2012. Also, contrary to
Schiewe’s representation at the April 2018 meeting, the document on file with the
Waushara County register of deeds does not appear to restrict construction on
Schiewe’s property in the sight line of Galloway’s property. If Galloway had known
that Schiewe’s promise and representations were false, Galloway would have
constructed the buildings on his property at the locations he had originally planned.

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Galloway constructed his buildings at locations different from what he had
originally planned to his financial detriment.

¶155 Schiewe intentionally made the false promise and representations in
April 2018 to cause Galloway to relocate Galloway’s buildings and “to thereby
make Galloway vulnerable to Schiewe’s later threats and coercion.” Since
September 2019, Schiewe has made efforts, including threats, to coerce Galloway
to sell to Schiewe the 1.2-acre property on which Galloway had built his house.

¶156 In September 2022, Galloway learned that, contrary to Schiewe’s
April 2018 promise and representations, Schiewe planned to construct a fuel depot
adjacent to Galloway’s property. If Galloway had known in April 2018 of
Schiewe’s plan to construct the fuel depot, “Galloway would not have entered into
any agreement with Schiewe.”

¶157 In December 2022, Schiewe moved to dismiss the new case as barred
by claim preclusion. The circuit court granted the motion in March 2023. At the
hearing on the motion, the court reviewed the procedural history of the first case
between Galloway and Schiewe that went to trial. The court noted that in the first
case it had not allowed the fraud and misrepresentation claims to be included in a
consolidated second amended complaint as contrary to the court’s no new claims
order. The court observed that the claims in the new complaint were identical to the
claims that the court had disallowed as contrary to the no new claims order in the
first case, and that the claims in both cases related to facts that, with the exception
of the fuel depot, were alleged in the second amended complaint in the first case.
The court also noted that the allegations about the fuel depot were relevant to the
remedies to be ordered in the first case, but the court did not allow Galloway to
bring new claims otherwise identical to the claims that the court had disallowed as

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contrary to the no new claims order in the first case. The court then concluded that
the elements for the application of claim preclusion were met and dismissed the
claims with prejudice.

B. Analysis

¶158 Galloway does not dispute that the first element for the application of
claim preclusion, an identity between the parties in the two cases, is met here. As
Schiewe notes, Galloway and Schiewe are “named parties” in both cases. See Teske
v. Wilson Mut. Ins. Co., 2019 WI 62, ¶28, 387 Wis. 2d 213, 928 N.W.2d 555
(concluding that “identity of parties [was] distinctly present” as to three of the
plaintiffs and the defendant who were “named parties” in both cases).

¶159 As to the third element, a final judgment on the merits, Galloway
asserts that there was not yet a final judgment in the first case because the
postverdict remedies hearings had yet to be held when Galloway filed the new
complaint and when the circuit court granted the motion to dismiss the new
complaint. However, Galloway does not support this assertion with a developed
argument based on citations to relevant legal authority, and we do not consider it
further.13 See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI
App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (we need not consider arguments
unsupported by legal authority, “and we will not abandon our neutrality to develop
arguments”); State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992)

13
More specifically, Galloway does not address the circumstances here, in which the jury
had returned a verdict as to liability and damages and postverdict motions had been addressed, so
that all that remained in the first case was a decision on remedies. In his appellant’s brief, Galloway
does not develop an argument at all. In his reply brief, Galloway only argues—in response to
Schiewe’s argument based on WIS. STAT. § 802.06(2)(a)10., which prohibits two pending cases for
the same cause of action—that the statute and the case law cited by Schiewe applying the statute
do not apply.

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(we need not consider arguments unsupported by legal authority or inadequately
briefed).

¶160 For purposes of determining whether the second element, an identity
of claims, is met, Wisconsin has adopted the “‘transactional approach.’”
Kruckenberg, 279 Wis. 2d 520, ¶25 (quoted source omitted). The transactional
approach “reflects the expectation that parties who are given the capacity to present
their entire controversies shall in fact do so.” Id., ¶27 (internal quotation marks and
quoted sources omitted). Pursuant to the transactional approach, “‘all claims arising
out of one transaction or factual situation are treated as being part of a single cause
of action and they are required to be litigated together.’” Teske, 387 Wis. 2d 213,
¶31 (quoted source omitted). “The concept of a transaction connotes a common
nucleus of operative facts.” Kruckenberg, 279 Wis. 2d 520, ¶26.

¶161 Applying these principles, we conclude that the claims in the new
complaint—which seek relief for the harm allegedly caused to Galloway by
Schiewe’s allegedly false promise and representations regarding Schiewe’s
subsequent construction activity on Schiewe’s property abutting Galloway’s
property—arise out of the same transaction as the claims in the second amended
complaint in the first case—which sought relief for the harm allegedly caused to
Galloway by Schiewe’s construction activity on Schiewe’s property abutting
Galloway’s property. Both complaints contain allegations about the April 2018
promises that Schiewe and Galloway made not to build within the sight line of each
other’s property and not to block each other’s views. Both complaints contain
allegations that Schiewe began in 2019 to construct the two pole buildings adjacent
to Galloway’s property. Both complaints contain allegations about Schiewe’s
construction activity—concerning the two pole buildings in the second amended

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complaint in the first case, and concerning the two pole buildings and the fuel depot
in the new complaint—that occurred after Galloway’s and Schiewe’s
communications about their construction plans.

¶162 While Galloway presented different legal theories and sought
different remedies in the two complaints, the claims in the two complaints share the
same nucleus of operative facts—Schiewe’s construction activities on Schiewe’s
property abutting Galloway’s property after Galloway’s and Schiewe’s
communications concerning their respective plans for construction on their
properties. See Kruckenberg, 279 Wis. 2d 520, ¶26 (“Under the transactional
approach, the legal theories, remedies sought, and evidence used may be different
between the first and second actions. The concept of a transaction connotes a
common nucleus of operative facts.” (footnote omitted)).

¶163 Galloway argues that there is not an identity of claims because the
new complaint contains new allegations of fact, specifically about the construction
of the fuel depot, that post-dated the complaints in the first case. However, while
the complaints in the first case concerned only the construction of the two pole
buildings, and the new complaint contains allegations about the construction of both
the two pole buildings and the fuel depot, the construction of the fuel depot was not
necessary to support the fraud and misrepresentation claims based on Schiewe’s
alleged promise and subsequent construction conduct within the sight line of
Galloway’s property in alleged violation of that promise. Rather, Schiewe’s
construction conduct in alleged violation of his 2018 promise and representations
began in 2019 with the construction of the pole buildings and, therefore, was known
to Galloway at the time he filed his initial and first amended complaints in the first
case. In other words, the “common nucleus of operative facts” in both cases

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comprises Schiewe’s alleged 2018 promise and Schiewe’s 2019 construction of the
pole buildings in alleged violation of the promise. The additional allegations in the
new complaint of another mode of breaking that promise—the construction of the
fuel depot—do not comprise a separate nucleus of operative facts so as to render
claim preclusion inapplicable.

¶164 Galloway argues that he “never had the opportunity to litigate and
present his fraud [and misrepresentation] claims to the jury,” because the circuit
court disallowed their inclusion in a consolidated second amended complaint in the
first case. However, the facts alleged in the new complaint concerning those
claims—namely, Schiewe’s 2018 promise not to build in the sight line of
Galloway’s property and Schiewe’s 2019 construction in that sight line—were
known to Galloway at the time he filed his initial and first amended complaints in
the first case in December 2019 and March 2020. But, as noted above, the fraud
and misrepresentation claims were first raised only when Galloway sought to
include them in a consolidated second amended complaint in the first case, more
than six months after Galloway filed his initial complaint in the first case. That the
court, in the exercise of its discretion, did not allow the fraud and misrepresentation
claims to be included in a consolidated second amended complaint under the
circumstances at the time that Galloway sought to include those claims, does not
preclude the application of claim preclusion to bar Galloway from bringing those
claims in a new case after the jury returned its verdict in the first case.

¶165 For this same reason, we reject Galloway’s argument that the circuit
court erred because its decision on claim preclusion in the new case contradicts, and
cannot be reconciled with, the court’s decision disallowing the inclusion of the fraud
and misrepresentation claims in a consolidated second amended complaint in the

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first case. The two decisions are subject to different standards of review and
different legal principles. To repeat, that the circuit court properly exercised its
discretion in making the decision in the first case under the erroneous exercise of
discretion standard of review, does not render its decision of a question of law in
the second case erroneous under the de novo standard of review.

¶166 Galloway also argues that his fraud and misrepresentation claims were
not actually litigated. However, the doctrine of claim preclusion applies to claims
“‘which were litigated or which might have been litigated in the former
proceedings.’” Kruckenberg, 279 Wis. 2d 520, ¶19 (emphasis added) (quoted
source omitted).

¶167 Galloway further argues that the circuit court erroneously dismissed
without prejudice Galloway’s fraud and misrepresentation claims in the first case
by disallowing their inclusion in a consolidated second amended complaint.
However, Galloway properly raised this argument in his cross appeal in Appeal
No. 2023AP2273, and we have addressed and rejected it above, see ¶¶71-89.
Galloway also argues that the court erred in applying the no new claims order in the
first case to the new complaint. We do not rely on the no new claims order in our
de novo review of whether the new complaint is barred by claim preclusion, and,
therefore, we do not consider this argument further.

¶168 In sum, we conclude that the circuit court properly dismissed the new
complaint as barred by claim preclusion.14

14
In reaching our conclusion that claim preclusion bars Galloway’s fraud and
misrepresentation claims based on Schiewe’s pre-construction promise, we state no opinion on
whether Galloway could in a new action make other claims concerning the fuel depot.

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Nos. 2023AP986
2023AP2273
2024AP2255

V. Outstanding Motions

¶169 The parties have filed two motions in the course of the appellate
proceedings which remain outstanding. We now address these motions in turn.

¶170 In December 2024, Schiewe filed a motion seeking attorney fees and
other penalties as sanctions against Galloway’s counsel under WIS. STAT.
RULE 809.83(2). Schiewe asserts that counsel has engaged in unprofessional
conduct by using uncivil and disparaging language in the briefs that counsel filed in
these consolidated appeals, and by seeking “serial” extensions of the time to file
those briefs. Schiewe provides numerous examples of what he asserts is
unprofessional language in counsel’s briefs, and details the seven motions that
counsel filed seeking either an extension of the time to file a brief or to exceed the
length of a brief allowed by the Rules of Appellate Procedure.

¶171 WISCONSIN STAT. RULE 809.83(2) allows appellate courts to sanction
parties who violate court orders or the Rules of Appellate Procedure. We conclude
that Schiewe fails to show that the language highlighted in his motion exceeds the
bounds of zealous advocacy by counsel for his client to the extent that it is
unprofessional. As to the motions that counsel filed throughout the briefing in these
appeals, this court issued orders granting all but one of the motions, and Schiewe
fails to show that we issued any of those orders in error. Accordingly, we deny
Schiewe’s motion for sanctions as unsupported.

¶172 In July 2025, after these consolidated appeals and cross-appeal were
fully briefed and submitted to the court of appeals on briefs for disposition,
Galloway filed a motion to remove one of the attorneys who has been included in
Schiewe’s appellate filings as counsel for Schiewe. Galloway asserted that the

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Nos. 2023AP986
2023AP2273
2024AP2255

attorney should be removed from appearing as counsel for Schiewe because the
attorney failed to file an appearance in two of the appeals and engaged in
professional misconduct while representing Schiewe before Galloway filed his
initial complaint in the first case in December 2019. In the motion, Galloway also
responds in opposition to Schiewe’s December 2024 motion for sanctions,
addressed above. We deny Galloway’s motion as untimely and unwarranted.15

CONCLUSION

¶173 For the reasons stated, we affirm the circuit court orders challenged in
these consolidated appeals and cross-appeal. No costs to either party.

By the Court.—Orders affirmed.

This opinion is not recommended for publication in the official
reports.

15
While we have rejected Schiewe’s assertion in his motion for sanctions that Galloway’s
counsel engaged in unprofessional conduct in his appellate briefing, we do admonish Galloway’s
counsel for the disparaging and abusive tenor of his accusations against Schiewe’s attorney in his
motion to remove that attorney. As we have previously cautioned Galloway’s counsel, appellate
representation that disparages opposing counsel does not constitute effective advocacy. See Koble
Invs. v. Marquardt, 2024 WI App 26, ¶51 n.10, 412 Wis. 2d 1, 7 N.W.3d 915, review granted (WI
Feb. 12, 2025) (No. 2022AP182).

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