Carla J. Carns v. Rodney A. Carns

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.
May 26, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP448 Cir. Ct. No. 2020CV35

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

CARLA J. CARNS,

PLAINTIFF-APPELLANT,

V.

RODNEY A. CARNS,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Lafayette County:
DUANE M. JORGENSON, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP448

¶1 PER CURIAM. Carla Carns appeals a circuit court order
dismissing all of her claims against Rodney Carns on summary judgment. Carla’s
operative complaint challenges the validity of a lease under which Rodney is
allowed to rent tillable portions of land that Carla was awarded as part of the
property division when Carla and Rodney were divorced in 2010.1 More
specifically, Carla claims that the lease is invalid to the extent that it requires her
to lease the land to Rodney after an initial ten-year lease period provided for in the
lease, a period that ended on February 28, 2020.

¶2 The circuit court ruled in part that two related claims made by Carla
are barred under the doctrine of claim preclusion: that the lease is void because it
extends beyond 15 years, in violation of the feudal tenures provision of the
Wisconsin Constitution; and because it is an impermissible “perpetual lease.” The
court deemed these claims barred because in 2011 Carla raised them in a separate,
unsuccessful lawsuit, claiming that the lease is invalid because it violates the
feudal tenures provision and is “perpetual.” We conclude that, in this action,
Rodney successfully carries his burden of proving his defense of claim preclusion
as to these two specific claims and on this basis we affirm dismissal of Carla’s
claims that the lease violates the feudal tenures provision and is invalid because it
is a “perpetual” lease.

¶3 Separately, the circuit court relied in part on statutes addressing
rental agreements between landlords and tenants in chapter 704 of the Wisconsin
Statutes to rule that, even if Carla’s remaining claims challenging the validity of

1
Because the parties share a surname, we use their first names, as the parties also do in
their briefing on appeal.

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the lease are not barred by claim preclusion, the parties effectively created a “year-
to-year” periodic tenancy that began at the end of the initial ten-year lease period,
which Rodney may trigger each year by requesting to lease the land for an
additional year. We conclude that Carla fails to show that the circuit court did not
correctly apply relevant legal standards to reach this periodic tenancy result.
Accordingly, we also affirm dismissal of the remaining claims challenging the
court’s periodic tenancy decision.

BACKGROUND

¶4 Carla and Rodney were divorced in January 2010. The judgment of
divorce incorporates a marital settlement agreement. As part of the property
division, the settlement agreement awards Carla farmland that includes tillable
acres. In the settlement agreement, Carla “hereby grants” to Rodney “the right to
cash rent the tillable acres” “for a term of ten years” after entry of the judgment of
divorce, “terminating on February 28, 2020.” The settlement agreement provides
a schedule for Rodney to pay specific amounts to Carla over this initial ten-year
lease term (February 2010-February 2020), although the details regarding the
timing and amounts of required payments over the initial ten years do not matter to
any issue on appeal.

¶5 Turning to the obligations of the parties after February 2020, the
settlement agreement provides:

After the initial ten-year term, [Carla] agrees to rent
said real estate to [Rodney] at the current market rate. In
the event that [Rodney] no longer desires to rent the
acreage, [Rodney] shall give [Carla] notice thereof no later
than September 15th of 2019.

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¶6 The parties also entered into an agreement entitled Farm Land Lease.
The Farm Land Lease contains language that parallels that used in the settlement
agreement regarding the land lease. Neither party shows that there is a difference
in the language of these two documents that matters to any issue in this appeal.
We use the term “lease” to refer to the common lease-related provisions in the
settlement agreement and the Farm Land Lease.

First Action

¶7 In 2011, Carla brought an action against Rodney regarding the lease,
which we call “the first action” to distinguish it from the instant action.2 One of
Carla’s claims in the first action is irrelevant to this appeal, namely, that the circuit
court should void the lease because Rodney allegedly breached it by modifying a
waterway on the leased land. However, Carla’s other claim is relevant here. Carla
asked the court to declare the lease “void pursuant to Article I, Section 14 of the
Wisconsin Constitution,” because under the lease Rodney “can continue to rent the
land governed by this lease for as long as [Rodney] chooses,” and “[n]o definitive
end for this lease can be provided.”

¶8 As background, Article I, § 14 of our state constitution is entitled
“Feudal tenures; lease; alienation.” It provides in pertinent part:

[F]eudal tenures are prohibited. Leases and grants of
agricultural land for a longer term than fifteen years in
which rent or service of any kind shall be reserved, and all
fines and like restraints upon alienation reserved in any
grant of land, hereafter made, are declared to be void.

2
The Hon. William D. Johnston presided over the first action and the Hon. Duane M.
Jorgenson presided over the instant action. We use the same phrase, “the circuit court,” in
referring to the actions of both judges.

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We refer to this as “the feudal tenures provision.”

¶9 Explaining this claim further, Carla’s position in the first action was
that the lease is invalid under the terms of the feudal tenures provision because it
is a lease “of agricultural land for a longer term than fifteen years in which rent or
service of any kind shall be reserved.” Carla contended that the lease is
“perpetual,” because “the only way for the lease to ever end is for [Rodney] to
choose to stop renting the land.” (Capitalization altered.) She argued that there
could be no mistake about the meaning of the lease:

The words of the contract and of Rodney are very clear:
Rodney can continue to rent the land governed by this lease
for as long as Rodney chooses. No definitive end for this
lease can be provided [because] Carla is mandated to rent
the land covered in the lease to Rodney at “market value”
following the initial period of 10 years, [during which
period] the rental rate is locked in.

(Substituting names for party designations.) Emphasizing the perpetual-lease
concept, Carla argued,

the lease is completely transferable[,] so even if [Rodney]
chooses not to rent [the land] for his own use as a cash
grain farmer[,] he can sell the lease to another individual
who could pay the “market value” or sub-lease it to another
individual who could pay the “market value” (and keep any
arbitrage that may exist from such a transaction).

¶10 During a hearing in the circuit court, Carla contended that the lease
should be invalidated for any term beyond the initial ten years. Her argument was
that any other court ruling

would allow [Rodney] to rent the property to another
individual in perpetuity, and if there happened to be any
arbitrage that was available because of said transaction, he
could keep that.

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If this lease was actually for 10 years and only 10
years, Ms. Carns would be able to make some decisions
with her land at the end of the lease.

Carla criticized Rodney for allegedly failing to provide the court with “insight as
to how long the lease actually extends beyond” the initial ten-year period. Carla
contended that she “is entitled to summary judgment because the lease is void
under” the feudal tenures provision, because the “clear language of the lease and
the testimony of [Rodney] indicates that [Rodney] has a perpetual right to lease
the land, governed by the lease, at market value for as long as he chooses, which is
a clear violation of” the feudal tenures provision.

¶11 In response, Rodney argued in part that nothing in the lease language
“suggest[s] that a perpetual lease, or even a lease for over 15 years, is required.”
He further argued that the feudal tenures provision prohibits only “feudal
tenanc[y],” and does not prohibit “free land owners” such as Carla from “the
ability to lease their land as they please,” without interference by “‘any superior
landlord or sovereign.’” The purpose of the feudal tenures provision, he argued, is

merely to promote land ownership in fee simple and to
prohibit feudal land tenures, which were [historically]
characterized by large tracts of land owned by a single
party, often a sovereign, which were parceled out to
individuals who were forced to work the land or perform
military service for the (land) lord for long periods of time
without any means to withdraw from the obligation to the
land and lord.

Rodney argued that the fact that Carla did not, as part of the divorce settlement,
negotiate a right to limit Rodney’s freedom to sub-let the property did not render
Rodney a “‘superior landlord or sovereign’” relative to Carla. Rodney argued that
Carla, as a landlord, sought to turn the feudal tenures provision on its head: “This
obscure and arcane provision of the Wisconsin Constitution was intended to
protect tenants from oppressive landlords, not the other way around.”

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¶12 The circuit court rejected Carla’s argument on the (irrelevant to this
appeal) waterway-modification issue. It also rejected her “perpetual lease”
argument involving the feudal tenures provision. The court stated that the feudal
tenures provision does not apply, because it is limited to preventing a historical
“practice that basically tied the folks to the land and to the landowner,” as in the
“the feudal systems of Europe,” and that it is only such practices that “would not
be allowed in the state of Wisconsin.” The court added, “I think the date here of
10 years makes [the feudal tenures provision] inapplicable.”3 Accordingly, the
court denied Carla’s request for summary judgment against Rodney and granted
Rodney’s motion for summary judgment against Carla, dismissing “in its entirety
with prejudice” the action containing “all claims brought by” Carla against
Rodney.

The Instant Action

¶13 Carla commenced this action in April 2020. The operative
complaint provides the basic history summarized above regarding the divorce and
pertinent terms of the lease, and then proceeds to make additional allegations that
include the following. Over the course of the initial ten-year period contemplated
in the lease, Rodney paid Carla at the rates stated in the lease and farmed the land
each year. In July 2019, in advance of the February 2020 close of the initial ten-

3
We pause to explain our interpretation of the circuit court’s sparse comments in
resolving this set of issues in the first action. We interpret the court to have rejected the merits of
Carla’s claim based on the feudal tenures provision and a purported “perpetual” lease for multiple
reasons, including but not limited to the court’s determination that the existence of an initial ten-
year period undermined Carla’s arguments. We note that Carla did not move for clarification or
reconsideration of the circuit court decision or to appeal it.

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year period, Rodney informed Carla that he wanted to “continue to rent the
property at a fair market value.”4

¶14 The operative complaint states that Carla “challenges the validity of
a perpetual lease right” based on four claims for relief: (1) that the lease “is
invalid as a matter of law because the settlement agreement fails to sufficiently
indicate that the parties intended to create a perpetual lease right”; (2) that the
lease “is invalid as a matter of law because the settlement agreement fails to
sufficiently define a lease right being granted to [Rodney] in perpetuity”; (3) that
“any perpetual lease rights for the benefit of [Rodney] for [Carla’s] property [are]
void” under Article I, Section 14 of the Wisconsin Constitution; and (4) that the
lease “is invalid as a matter of law [because it lacks] a definitive statement as to
the applicable terms of the lease right being granted.”

¶15 As substantive relief the complaint requests: “a declaratory
judgment that [Rodney’s] perpetual lease is invalid as a matter of law”; “a
declaratory judgment that [the] perpetual lease violates the Wisconsin
Constitution”; “an order enjoining [Rodney] from enforcing any further right to
lease against [Carla]”; and in the alternative, “an order defining the required terms
of the lease.”

¶16 After both sides moved for summary judgment, the circuit court
made the following rulings.

4
For context, we note that the complaint also alleged that in November 2019 Carla and
Rodney entered into a new agreement, entitled Cash Farm Lease, in order to preserve the status
quo and permit Carla to continue receiving income from the land. However, nothing about this
separate agreement is pertinent to the issues we resolve on appeal.

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¶17 The circuit court concluded that “claim preclusion in this case is
appropriate regarding the notion … that somehow this is a lease in perpetuity.”
The court noted that, in the first action, the circuit court had addressed Carla’s
arguments that the lease was “in excess of 15 years” and therefore
unconstitutional.

¶18 We pause to note that there is some ambiguity in statements and
actions of the circuit court as to whether it intended to rely entirely on claim
preclusion as a ground to grant summary judgment (making additional rulings for
the benefit of the parties in the event that the claim preclusion ruling was not
reversed on appeal), or instead based summary judgment only in part on its claim
preclusion ruling. However, it does not matter which the court intended, because
as we explain below we apply the pertinent legal standards on de novo review,
affirming the court’s dismissal of some claims based on claim preclusion as well
as its dismissal of other claims on the merits.

¶19 Returning to our background summary, the circuit court in the
instant action stated that there is “a lack of clarity” in the lease regarding the
nature of lessor-lessee relationship after the initial ten-year period, which “makes
[Carla’s] action for declaratory judgment appropriate[,] so as to delineate the
rights and obligations under the marital settlement agreement and judgment of
divorce.”

¶20 Interpreting the lease and consulting pertinent statutory sources, the
circuit court made the following additional rulings. It rejected Rodney’s argument
that he is “entitled to an extension of 10 years [beyond] the original 10-year
lease,” in part on the ground that the lease is “very specific as to its terms and
conditions” addressing the initial ten-year period, but it is “anything but specific”

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in addressing periods to follow. The court also rejected Carla’s argument that the
lease must be invalidated because it is “invalid” and “undefined.”

¶21 The circuit court determined that the parties created a “year-to-year
lease” after the end of the initial ten-year period, with Rodney making the
determination each year whether to continue the lease “at the current market
rate.”5 The court stated that it took into account the intent of the parties, as
expressed in the lease, when considered in light of applicable statutory provisions,
such as WIS. STAT. § 704.03(2) (2019-20).6 This statutory provision establishes in
pertinent part that, when a lease for more than one year is insufficiently definite as
defined in § 704.03(1), and

the use is agricultural or nonresidential, the tenant becomes
a year-to-year tenant without regard to the rent-payment
periods. Except for duration of the tenancy and matters
within the scope of [WIS. STAT. §§] 704.05 and 704.07, the
tenancy is governed by the terms and conditions agreed
upon. Notice as provided in [WIS. STAT. §] 704.19 is
necessary to terminate such a periodic tenancy.

Section 704.03(2). The court also cited Schneider v. Schneider, 132 Wis. 2d 171,
175, 389 N.W.2d 835 (Ct. App. 1986) (“As a general rule, when a contract is of
indefinite duration, we will imply a reasonable time for performance.”). It further
stated that it was taking into account extrinsic evidence to assist the court in
construing ambiguity in the lease.

5
As to the proper calculation of a market rate, the circuit court stated that it had not been
provided with any evidence on this topic and therefore it could not address it. Neither party on
appeal raises an issue regarding the specific market rate topic.
6
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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¶22 We interpret the circuit court to have determined, consistently with
the terms of the lease, that Rodney is obligated to notify Carla no later than
September 15th each year if he intends to lease the land at the market rate for one
additional year, beginning the following February, and that the lease terminates on
the first year that Rodney fails to do this.

¶23 Carla appeals the circuit court’s grant of a motion for summary
judgment in favor of Rodney. Rodney does not cross appeal any ruling of the
circuit court adverse to him.

DISCUSSION

¶24 We conclude that Rodney has shown that claim preclusion bars all of
Carla’s claims in the instant action involving the feudal tenures provision of the
state constitution and perpetual leases (“the perpetuity claims”), because the
perpetuity claims involve “‘matters which were litigated or which might have been
litigated in’” the first action. See Teske v. Wilson Mut. Ins. Co., 2019 WI 62, ¶23,
387 Wis. 2d 213, 928 N.W.2d 555 (quoting Lindas v. Cady, 183 Wis. 2d 547, 558,
515 N.W.2d 458 (1994), in turn quoting DePratt v. West Bend Mut. Ins. Co., 113
Wis. 2d 306, 310, 334 N.W.2d 883 (1983)).

¶25 Separately, regarding the remaining claims not barred by claim
preclusion, we reject on the merits Carla’s narrow argument that the circuit court
erred in determining that, beginning after an initial ten-year lease period, the
parties created a year-to-year periodic tenancy under WIS. STAT. § 704.03(2).7

7
We need not reach whatever argument or arguments Carla may intend to make in
asserting that the circuit court erred by dismissing some of Carla’s claims on the basis of a
decision not “to use its discretion under WIS. STAT. § 806.07,” because we affirm the court’s
(continued)

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¶26 Both the claim preclusion and periodic tenancy issues require us to
review a summary judgment determination, which we do independently, without
deference to the circuit court. See Teske, 387 Wis. 2d 213, ¶20. “Summary
judgment is appropriate where there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law.” Id., ¶21.

I. CLAIM PRECLUSION

¶27 “Whether claim preclusion applies under a given factual scenario is
a question of law we review independently,” using the de novo standard without
deference to the circuit court. Id., ¶20.

¶28 Our supreme court has explained the following:

“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.” Pursuant to claim
preclusion, “a final judgment is conclusive in all
subsequent actions between the same parties as to all
matters which were litigated or which might have been
litigated in the former proceedings.”

Id., ¶23 (citations omitted). A party offering this defense must prove each of three
elements: “(1) an identity between the parties or their privies in the prior and
present lawsuits; (2) an identity of the causes of action in the two lawsuits; and
(3) a final judgment on the merits in a court of competent jurisdiction.” Id., ¶25;
see also Pasko v. City of Milwaukee, 2002 WI 33, ¶16, 252 Wis. 2d 1, 643
N.W.2d 72 (party asserting claim preclusion bears the burden of proof on each
element).

dismissal decisions for the separate reasons explained in the text of this opinion, without
reference of § 806.07.

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¶29 Carla does not dispute that when the first action and the instant
action are compared there is an identity between the parties, and therefore the first
element is met, regarding all of her claims. But she disputes the second and third
elements. We address these elements in turn, and then address Carla’s alternative
argument that even if claim preclusion does apply, justice requires an exception in
this case.

A. Identity Of Causes Of Action

¶30 The substantive legal standard for the second element of claim
preclusion is the following:

For purposes of determining whether there is an
identity of causes of action in two lawsuits, Wisconsin has
adopted the “transactional approach” set forth in the
Restatement (Second) of Judgments § 24 (1982). The
transactional approach “reflects the expectation that parties
who are given the capacity to present their entire
controversies shall in fact do so.” Pursuant to this analysis,
“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.”

The concept of a “transaction” connotes a natural
grouping or common nucleus of operative facts. “In
determining if the claims of an action arise from a single
transaction, we may consider whether the facts are related
in time, space, origin, or motivation.”

Teske, 387 Wis. 2d 213, ¶¶31-32 (citations and footnote omitted). In addition, as
noted above, “a ‘final judgment is conclusive in all subsequent actions between
the same parties as to all matters which were litigated or which might have been
litigated in the former proceedings.’” Id., ¶23 (quoted source omitted).

¶31 Under the transactional approach,

“[I]t is irrelevant that ‘the legal theories, remedies sought,
and evidence used may be different between the first and

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second actions.’” Rather, “[t]he goal in the transactional
approach is to see a claim in factual terms and to make a
claim coterminous with the transaction, regardless of the
claimant’s substantive theories or forms of relief, regardless
of the primary rights invaded, and regardless of the
evidence needed to support the theories or rights.”

Id., ¶36 (citations omitted).

¶32 With that additional legal context, we begin by explaining why we
agree with Carla that claim preclusion does not apply to bar her claim in this
action that the lease “is invalid as a matter of law [because it lacks] a definitive
statement as to the applicable terms of the lease right being granted.” This is an
issue that the circuit court in the instant action addressed on the merits in
determining that, beginning after an initial ten-year lease period, the parties
created a year-to-year periodic tenancy under WIS. STAT. § 704.03. We reject
Rodney’s broad assertions that claim preclusion applies to all of Carla’s claims in
the instant action, which leaves the periodic tenancy issue that we address
separately below.

¶33 It is true that, as we discuss further below, one “transaction” that was
litigated in 2011 is at issue in the instant action: the validity of Rodney’s ability to
extend the lease. However, Carla did not bring an indefiniteness claim in the first
action that involved determining the parties’ obligations under the lease after the
initial ten years, based on facts involving actual extension of the lease at that point.
Instead, as pertinent here, she brought only the perpetuity claims, facially
challenging the validity of the lease’s potential extendibility, during its initial
period. Further, the perpetuity claims in the first action were entirely premised on
the concept that the lease is definite, but that it is unconstitutional and fatally
flawed because it would (definitely) last forever if Rodney and his assigns want it
to. In other words, Carla’s first action rested in part on the proposition that the

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theoretical renewal of the lease after the initial ten years would be eternally at
Rodney’s discretion unless the lease were, as she urged, construed to avoid that
result by being invalidated after the initial ten years.

¶34 In addressing claim preclusion issues now, Rodney fails to explain
how Carla could reasonably be expected in the first action to have brought the
invalid-because-indefinite claim because the entire premise of the first action was
that the lease was invalid because it was definite and potentially perpetual. We
acknowledge that this issue is not free from doubt, to the extent that Carla might
have been permitted in the first action to bring alternative claims that were based
on diametrically opposed premises. However, we conclude that Rodney does not
carry his burden on this issue because his broad brush approach does not explain,
based on relevant authority, why we should conclude that claim preclusion must
apply to the periodic tenancy issue under these seemingly unusual circumstances.

¶35 We now explain why we agree with Rodney that claim preclusion
applies to bar the perpetuity claims. Carla argues that “[d]ue to the factual
differences in time, origin, and motivation between the lawsuits at issue, claim
preclusion cannot be sustained” on any of her claims in this action, including the
perpetuity claims. In making this argument, Carla references relevant legal
concepts on the second element of the test, as summarized above. But we disagree
with her analysis. We conclude that, given the nature of the perpetuity claims, a
comparison of the facts placed at issue in the two actions reveals that the causes of
actions are the same, which is dispositive on the second element.

¶36 As already noted, the following “transaction” was at issue in both
the first action and this one: the lease created as part of the divorce settlement.
More specifically, in each action, based on the same documents, Carla focused her

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perpetuity claims on the obligations of the parties after the initial ten-year period.
At least as to her perpetuity claims, we reject Carla’s suggestion that there are two
transactions: the initial ten-year term of the lease, and the extension after the
initial ten years. Further, there is no dispute that there was no change in facts
related to the perpetuity claims between the litigation in each action, with the
exception that, as Carla predicted and asked the circuit court to assume in the first
action, Rodney confirmed that he wanted to continue to lease the land after the
initial ten-year period.

¶37 Carla does not argue that the circuit court in the first action
prevented her from having a full and fair opportunity to be heard on the perpetuity
claims. Cf. Kruckenberg v. Harvey, 2005 WI 43, ¶52 & n.44, 279 Wis. 2d 520,
694 N.W.2d 879 (“[f]airness” has not been “adopted” generally “as a factor in the
doctrine of claim preclusion,” but in the specific privity context, “courts ask
whether the nonparty has had a full and fair opportunity to determine the issue.”).

¶38 Carla asserts that the issue of the obligations of the parties after the
initial ten years was merely “dormant and conditional” in the first action, given
that it was not known in 2011 if Rodney would want to extend the lease. But that
is not how the perpetuity claims were presented by Carla in the first action, as the
summaries above make clear. In particular, Carla argued in the first action that
she was entitled to a ruling from the court that the lease “was actually for 10 years
and only 10 years,” because that would allow her to plan, to “be able to make
some decisions” about what would happen “with her land at the end of the lease.”

¶39 Carla now argues that her “‘motivation’” changed between the two
lawsuits. See Teske, 387 Wis. 2d 213, ¶32 (quoted source omitted). This is true in
a limited sense. Given the passage of time, it is fair to assume that, by the time of

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this action, the issue of whether Rodney would continue to lease the land after the
initial ten years had become more immediately consequential to her than it had
been at the time of the first action, because the effect on her would be immediate
and not some years distant. But, again, her first action was premised on her
prediction that Rodney would continue to want to lease the land at the end of the
initial ten years, and from that premise she sought a ruling based on the perpetuity
claims in order to help her plan for that eventuality. Thus, in both actions, Carla
expressed her motivation through an explicit argument that she wanted to avoid
having to lease the land to Rodney after the initial ten-year period.

¶40 In a related argument, Carla suggests that it is a material factual
difference between the two actions that the first action also involved an alleged
breach of contract involving Rodney’s actions on the property, while the instant
action does not. But the alleged breach was only an additional claim to the
perpetuity claims and does not affect the analysis; when the alleged breach is
removed, what remains is an identical factual nexus and Carla making what
amount to the same perpetuity claims against Rodney in the two actions.

¶41 For these reasons, there is a sufficient identity of causes of action
between the perpetuity claims in each action to satisfy the second element of claim
preclusion.

B. Final Judgment

¶42 Given our decision that claim preclusion applies to bar only the
perpetuity claims, little appears to remain of Carla’s argument that the third
element of claim preclusion does not apply. This is because our decision in
Carla’s favor on this aspect of the claim preclusion issue renders one of her
specific arguments irrelevant: that the final judgment in the first action did not

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satisfy the third element because it did not “defin[e] the meaning of the” lease
relative to the obligations of the parties after the initial ten-year period, and that
the circuit court could not have done so in the first action because the issue was
not “ripe.” [blue:37-38, reply:2-3]

¶43 The issue is whether there was “a final judgment on the merits in a
court of competent jurisdiction” that has not been overturned on appeal. See
Teske, 387 Wis. 2d 213, ¶¶41-42; see also State v. Miller, 2004 WI App 117, ¶28,
274 Wis. 2d 471, 683 N.W.2d 485 (“the common element” for judgments meeting
the third claim preclusion element is that they “end[] the litigation on the merits of
the claim or claims”). We conclude that Rodney has carried his burden of
showing that there has been a final judgment addressing the perpetuity claims that
satisfies the third element of claim preclusion. In the first action, the circuit court
granted Rodney summary judgment on these claims and dismissed them on the
merits and with prejudice. Further, there is no dispute that Carla did not seek
reconsideration by the circuit court or another form of post-judgment relief and
that she did not appeal the judgment.

¶44 Carla argues that the third element does not apply to any of her
claims because the final judgment in the first action was not “relat[ed] to whether
the Extension [C]lause created a perpetual lease.” Whatever Carla precisely
intends to argue in making this assertion, at a minimum it rests on the unsupported
premise that, in resolving the third element, we are to parse the substance of the
reasoning that the circuit court used in the first action in addressing claims that
align with similar claims raised in the subsequent action. Carla fails to support
this premise in general. See Miller, 274 Wis. 2d 471, ¶28 (“a final judgment on
the merits need not be the result of a full litigation of the claims in order for claim

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No. 2021AP448

preclusion to apply”; for example, stipulations and default judgments “may meet”
that requirement).

¶45 Further, Carla fails to show that this case presents a circumstance in
which such parsing could advance her argument. That is, even if we assume
without deciding that the scope of the reasoning used by the circuit court in the
first action in addressing the perpetuity claims could be deemed overly narrow—to
the point that Rodney could not carry his burden on the third element—Carla fails
to show how that reasoning was so narrow that the court did not in fact reach the
merits of her contention that the lease was unconstitutional and improperly
perpetual due to its potential for extension. See supra note 3.

¶46 In sum, the third element of claim preclusion is met as to the
perpetuity claims because in the first action the circuit court resolved the rights of
the parties on the merits of those claims, and the judgment became final upon
expiration of the time for filing an appeal, given that Carla did not appeal.

C. Exception

¶47 Carla argues that “[e]ven if claim preclusion does apply, justice
requires an exception be made in the instant case.” She attempts to draw parallels
to Kruckenberg, 279 Wis. 2d 520. In that case, our supreme court explained in
detail the need for, and then adopted, the following as a “narrowly drawn
exception” for assertions of claim preclusion in boundary line disputes: “When an
action between parties or their privies does not explicitly determine the location of
a boundary line, the doctrine of claim preclusion will not bar a future declaratory
judgment action to determine the proper location of the boundary line.” See id.,
¶¶41-46.

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No. 2021AP448

¶48 Carla’s argument on this issue is limited and does not persuade us
that she should have been allowed to relitigate the perpetuity claims. She asserts
that lease disputes generally, like boundary line disputes, can be subject to over
litigation, see id., ¶43, she repeats her “ripeness” concept that is resolved by
consideration of her indefiniteness claim by the circuit court and now on appeal,
and she briefly recites a series of property-related issues that have public policy
implications. Our supreme court provided specific grounds for creating the
narrow exception in Kruckenberg. See id., ¶¶41-46 (articulating a narrow rule and
explaining why “[t]he legal system should, in the present case, be more concerned
with deciding the location of the boundary line than with strictly applying the
doctrine of claim preclusion”). Carla does not develop a clear argument based on
legal authority, much less the weighty argument that would be required to show
that an exception must be applied here, contrary to the unambiguous rules
addressing the general rule of claim preclusion summarized above. To note only
one set of problems, Carla fails to make clear what specific exception the law calls
for that might apply in cases other than this one, when stated as a general rule and
based on particular important public policy considerations. We are left with more
questions than answers about the scope of an appropriate potential special
exception.8

8
Neither Carla nor Rodney provides a developed argument on the specific issue of
whether Rodney or his eventual estate could in some manner potentially transfer or assign his
rights under the lease to a third party—either on the merits of that issue or as an issue subject to
claim preclusion. Accordingly, we do not address any of these topics in this appeal.

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No. 2021AP448

II. PERIODIC TENANCY

¶49 Carla does not challenge the circuit court’s ruling that the parties, in
agreeing to the lease, effectively created a year-to-year periodic tenancy that
commenced after the end of the initial ten-year period, when the lease is now
interpreted consistently with WIS. STAT. § 704.03(2) (quoted supra at ¶21).
Instead, her only argument is narrow. She argues that the court erred in failing to
limit the number of years of the periodic tenancy to one year, and contends that
this court “should imply a renewal period of one year” because that is “a
reasonable duration to imply.” This argument is based on WIS. STAT. § 704.19,
which establishes the “notice necessary to terminate periodic tenancies.” We
disagree that Carla has identified a flaw in the circuit court’s application of
§ 704.03(2) based on § 704.19.9

¶50 “[T]he purpose of statutory interpretation is to determine what the
statute means so that it may be given its full, proper, and intended effect.” State
ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633,
681 N.W.2d 110. Statutory interpretation presents issues of law that we review de
novo. DOR v. River City Refuse Removal, Inc., 2007 WI 27, ¶26, 299 Wis. 2d
561, 729 N.W.2d 396.

9
Rodney briefly asserts that the lease as written, without modification, satisfies the
requirements of WIS. STAT. §§ 704.03(1) and 706.02, and in making that assertion suggests
potential raw material for a cross appeal of the circuit court’s decision to grant a year-to-year
periodic tenancy. Given the lack of development and the failure to file a cross appeal, we discuss
no further the possibility of relief different from that ordered by the circuit court. See WIS. STAT.
RULE 809.10(2)(b); Auric v. Continental Cas. Co., 111 Wis. 2d 507, 515, 331 N.W.2d 325
(1983).

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No. 2021AP448

¶51 We reject Carla’s argument based on WIS. STAT. § 704.19. In her
opening brief on appeal, Carla quotes § 704.19 but omits a critical provision from
that statute. Then, after Rodney makes an argument based on the omitted statutory
language, Carla has no reply of substance, effectively conceding the point. We
now explain further.

¶52 In her opening brief, Carla notes that WIS. STAT. § 704.03(2)
provides that the notice that is required under WIS. STAT. § 704.19 “is necessary to
terminate” a periodic tenancy, which as Carla also notes parallels the statement in
§ 704.19(1) itself that refers to “periodic tenancies,” “however created.” Having
established that the notice requirements described in § 704.19 must be employed
to terminate a periodic tenancy, Carla directs us to an incomplete quotation of
§ 704.19(2).

¶53 We now quote pertinent portions of WIS. STAT. § 704.19(2). We
underline the text that Carla relies on and place in italics what she omits:

(2) REQUIREMENT OF NOTICE.

(a) A periodic tenancy or a tenancy at will can be
terminated by either the landlord or the tenant only by
giving to the other party written notice complying with this
section, unless any of the following conditions is met:

1. The parties have agreed expressly upon another
method of termination and the parties’ agreement is
established by clear and convincing proof.

¶54 Based on the text that we now underline, Carla argues that, under
WIS. STAT. § 704.19(2)(a), all periodic tenancies are terminable by either the
landlord and the tenant, upon proper notice, because they “can be terminated by
either the landlord or the tenant only by giving to the other party written notice

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No. 2021AP448

complying with this section.” We assume without deciding that this portion of
§ 704.19(2)(a) has this meaning, at least before one reaches subdivision 1.

¶55 Relying on the exception set forth in WIS. STAT. § 704.19(2)(a)1.,
Rodney argues that the lease expressly provides for the following methods of
termination: Rodney’s “right of first refusal [to purchase the property] upon
Carla’s [planned] sale of the property, Rodney’s notice on September 15th of each
year, and in the event of default [of the lease] by Rodney.”

¶56 In reply, Carla does not develop an argument that the lease fails to
provide for expiration or termination in these ways. She asserts in a conclusory
manner that it is “silent” on the topic. She further asserts that application of the
WIS. STAT. § 704.19(2)(a)1. exception here could “not constitute an ‘expressly
agreed’ ‘method’ of termination under [§ 704.19(2)(a)], since by that reasoning,
every lease that has ever been entered into would meet that burden automatically,
which would lead to absurd results and forego any purpose that subsection of
[]§ 704.19(2)(a) has.” None of these assertions constitute a developed argument.
Carla does not explain an absurdity and fails to show that the § 704.19(2)(a)1.
exception must apply in all hypothetical cases if it applies here. Having failed to
provide a developed reply to Rodney’s argument, Carla effectively concedes the
point.10

10
Rodney improperly cites an unpublished per curiam opinion of this court in his brief
on appeal. See WIS. STAT. § 809.23(3)(a). We ignore the citation and associated argument.
Counsel should avoid future violations of this rule.

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No. 2021AP448

CONCLUSION

¶57 For all these reasons, we affirm the circuit court order dismissing all
of Carla’s claims against Rodney in the instant action.

By the Court.—Order affirmed.

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

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