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COURT OF APPEALS
NOTICE
DECISION
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.
February 28, 2002
A party may file with the Supreme Court a
                                                                                                      Cornelia G. Clark                                                      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.
                                                                                                                                                                             Cir. Ct. No.   00-SC-818
Appeal No.                                                                                            01-1952
STATE OF WISCONSIN                                                                                                                                                           IN COURT OF APPEALS
DISTRICT IV
JOHN P. GASIENICA,
PLAINTIFF-APPELLANT,
V.
NEIL RICHMAN,
DEFENDANT-RESPONDENT.
APPEAL  from  an  order  of  the  circuit  court  for  Grant  County:
MICHAEL KIRCHMAN, Judge.  Affirmed.
¶1                                                                                                    ROGGENSACK,  J.1    John  Gasienica  filed  a  small  claims  action
alleging that a neighboring property owner, Neil Richman, failed to adequately
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (1999-
2000).   In addition, all further references to the Wisconsin Statutes are to the 1999-2000 version
unless otherwise noted.




No.   01-1952
maintain a ditch that carries surface water run-off in an area near the boundary of
the  two  properties.    Water  run-off  allegedly  caused  flooding  on  Gasienica’s
property  because  the  ditch  has  filled  with  debris.    The  circuit  court  granted
Richman’s motion to dismiss on the bases of issue and claim preclusion.    We
affirm the circuit court’s order of dismissal.
BACKGROUND
¶2                                                                                          John Gasienica and Neil Richman own adjacent properties located in
Grant County, Wisconsin.   Prior to Gasienica’s purchase of his property, the Town
of Paris constructed a drainage ditch on Richman’s property for the purpose of
channeling surface waters.   The ditch runs near the boundary between the parties’
respective properties.
¶3                                                                                          In  1997, Gasienica filed a lawsuit against Richman, alleging that
Richman had failed to maintain the drainage ditch and thereby caused flooding on
his property between July 1994 and August 1996.   After a trial to the court, the
circuit court issued a written decision in favor of Richman.   The circuit court’s
decision included the following findings of fact and conclusions of law:
(1)                                                                                         [T]he flooding was a natural event enhanced by
the township’s diversion of water off its roadway into the
watershed.
(2)                                                                                         [T]he creation of the ditch by the township did
not  cause  any  harm  or  substantially  interfere  with  the
natural watershed of the surface waters.
(3)                                                                                         [T]he existence of the ditch did not increase the
natural flooding problem, but decreased it.
(4)   Over  the  years,  this  ditch  had  become  filled
with dirt and debris.
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No.   01-1952
(5)                                                                                                   [N]o  damage  was  caused  to  Mr.  Gasienica’s
property that would not have been caused by the natural
flow of water in the area.
(6)   Mr. Richman had no duty to maintain this ditch.
(7)   No liability to either party attaches, since the
damages  if  any  were  caused  by  the  natural  flooding
enhanced by this increased flow caused by the township’s
diversion of water into the ditch it had built.
¶4                                                                                                    On October  27,  2000,  Gasienica  filed the first complaint in this
action, alleging that between November  1996 and October  26,  2000, Richman
“knowingly and intentionally” caused damage to Gasienica’s real and personal
property by allowing surface water run-off to repeatedly breach the ditch and flood
Gasienica’s property.   He sought damages for cleaning debris out of the ditch and
for water damage to vegetation on his property.   Gasienica characterized his claim
as one of private nuisance, and he also alleged that Richman failed to exercise
reasonable and ordinary care in maintaining the drainage ditch, such that it was in
“disrepair and silted in.”2
¶5                                                                                                    Gasienica amended his complaint three times, all without leave of
the court.   Richman’s amended answer raised issue preclusion as one affirmative
defense, and then he filed a motion to dismiss based, in part, on that defense.
Richman argued that issues decided in the  1997 lawsuit initiated by Gasienica
served to bar consideration of Gasienica’s current claims for relief.
¶6                                                                                                    During the hearing on Richman’s motion to dismiss, the court asked
Gasienica whether he was claiming that “something [had] been done with regard
2  Gasienica also named the Town of Paris as a defendant in his original complaint.   The
court dismissed the Town of Paris from the case, and the claims against it are not before the court
on this appeal.
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No.   01-1952
to this ditch since the decision [in the 1997 action].”   Gasienica responded that the
ditch  “has continued to deteriorate,” become  “completely blocked in” and  “no
longer flows.”    Based on this characterization of Gasienica’s claim, the circuit
court took the motion to dismiss under advisement:
Mr. Gasienica also is stating that this lawsuit is based upon
… a fact situation not part of the original lawsuit in that,
saying  the  water  course  has  now  been  completely                                   …
blocked  in  which  wasn’t  the  situation  in  the  original
lawsuit.   That might be a new fact which would permit a
new lawsuit.
So, I’m going to deny the Defendant’s Motion to
Dismiss.    But, I think before any trial is set we should
determine  whether  it’s  possible  for  Mr.  Gasienica  to
succeed.   In other words is there case law … on [a] fact
situation  similar  to  this,  where  the  possessor  of  land  is
liable for water damages, even if it’s created by somebody
else.
¶7                                                                                       Gasienica’s  post-hearing  brief  responded  to  the  circuit  court’s
request for further authority on the issue of Richman’s potential liability for a
nuisance that Richman did not create, but that is located on his land.   However,
Gasienica’s brief also included additional “Factual Background” to the case that
does not appear in the pleadings:
Plaintiff  has  alleged,  generally  in  his  Amended
Complaint, and will prove, by specific evidence at trial, the
following:                                                                               … (4) the discharge and overflow has been and
is caused by one or more artificial conditions (e.g., a ditch
and an embankment) that have existed at all times relevant
to this suit and continue to exist upon the Defendant’s land;
(5) the Plaintiff’s property is at a higher elevation than the
Defendant’s  property  and,  absent  the  aforesaid  artificial
conditions, water in the area would runoff and flow onto
the Defendant’s land beyond the bed of the ditch and, in
fact, at least one of the artificial structures was created for
the specific purpose of preventing water from flowing onto
the Defendant’s property beyond the bed of the ditch; and
(6)  the  Defendant  has,  on  at  least  three  occasions,
prevented the Plaintiff from abating the aforesaid discharge
and overflow, including abatement in such a manner that
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No.   01-1952
water would not overflow upon the property of either the
Defendant or the Plaintiff.
¶8                                                                                                   After  the  post-hearing  briefing,  the  court  issued  a  memorandum
decision  and  order  dismissing  the  case.    The  court  determined  that  it  was
precluded from revisiting the issue of Richman’s duty to take action regarding an
alleged  nuisance  created  by  another  because                                                     “the  opportunity  to  make  that
argument either did exist in the previous case or could have and should have been
argued in the previous case between Mr. Gasienica and Mr.  [Richman].    The
plaintiff’s case here is brought upon slightly different facts and theories than in the
original action, but is substantially the same as the case previously decided.”
Gasienica appeals.
DISCUSSION
Standard of Review.
¶9                                                                                                   The circuit court resolved this case by granting Richman’s motion to
dismiss  based  on  the  preclusive  effect  of  the  prior  lawsuit.    Whether  issue
preclusion or claim preclusion may be applied to a particular set of facts or legal
claims are questions of law which we review de novo.   Juneau County v. Sauk
County, 217 Wis. 2d 705, 709, 580 N.W.2d 694, 695 (Ct. App. 1998); May v. Tri-
County Trails Comm’n, 220 Wis. 2d 729, 733, 583 N.W.2d 878, 880 (Ct. App.
1998).3
3  If issue preclusion may be applied in a given case, it is generally within the circuit
court’s discretion to determine whether actually applying the doctrine comports with principles of
fundamental fairness.   Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 225, 594 N.W.2d 370, 377
(1999).  Here, Gasienica’s appeal is based solely on issues that are subject to de novo review.
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No.   01-1952
Preliminary Matters.
1.                                                                                                    Multiple pleadings.
¶10    Gasienica filed four complaints, all with similar factual allegations.
Richman  moved  to  strike  the  second  and  third  amended  complaints  due  to
Gasienica’s failure to obtain leave of court before amending his pleadings.   See
WIS. STAT.  § 802.09(1).    The circuit court never ruled on Richman’s motion.
However,  we  conclude  that  our  decision  on  the  merits  would  be  the  same
regardless which complaint is the operative pleading.
2.                                                                                                    Facts outside the pleadings.
¶11    A  second  preliminary  issue  is  whether  the  facts  alleged  in
Gasienica’s post-hearing brief are before this court.   Gasienica’s brief assumes that
they are, but we conclude that they are not.   On appeal of a motion to dismiss, we
confine our review to the pleadings, Jenkins v. Sabourin, 104 Wis. 2d 309, 313-
14, 311 N.W.2d 600, 603 (1981), and Gasienica’s post-hearing brief is not part of
the pleadings nor is it an evidentiary submission in proper form.4
4  The circuit court must treat a motion to dismiss as a motion for summary judgment if
the parties present evidentiary submissions outside of the pleadings and the court does not
exclude those submissions.   WIS. STAT. § 802.06(2)(b).   Here, the circuit court took judicial
notice of the decision in the 1997 action that Gasienica initiated against Richman.   This decision
was referred to in the pleadings.
Additionally, even if we were to review the circuit court’s decision under the standards
applicable to summary judgment, we would not be permitted to consider Gasienica’s unsworn
statements in his brief.   See WIS. STAT. § 802.08(3).   That is, the unsworn statements are not
“evidentiary facts” and would not be sufficient to raise a genuine issue of material fact.   See
Hinrichs v. American Family Mut. Ins. Co., 2001 WI App 114, ¶13, 244 Wis. 2d 191, 629
N.W.2d 44; Helland v. Kurtis A. Froedtert Mem’l Lutheran Hosp., 229 Wis. 2d 751, 764, 601
N.W.2d 318, 325 (Ct. App. 1999).
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No.   01-1952
Issue and Claim Preclusion.
¶12    Issue preclusion is a doctrine of judicial administration that has the
dual purpose of protecting litigants from repetitive litigation and of promoting
judicial economy.   Amber J.F. v. Richard B., 205 Wis. 2d 510, 517, 557 N.W.2d
84, 87 (Ct. App. 1996).   A court may apply issue preclusion to prevent relitigation,
by the same parties or their privies, of an issue of fact or law that has been actually
litigated in a prior action and that is necessary to the resulting judgment or order.
Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 219, 594 N.W.2d 370, 374 (1999);
Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723,
727 (1995).   In addition, issue preclusion may apply even if the cause of action in
the second suit is different from the first.   Crowall v. Heritage Mut. Ins. Co., 118
Wis. 2d  120,  122 n.1,  346 N.W.2d  327,  329 n.1  (Ct. App.  1984).    A court’s
determination  of  whether  to  actually  apply  issue  preclusion  in  a  given  case
involves a flexible analysis based on fundamental fairness.   Michelle T. v. Crozier,
173 Wis. 2d 681, 688-89, 495 N.W.2d 327, 330-31 (1993).   The test requires “that
a  person  must  have  had  a  fair  opportunity  procedurally,  substantively  and
evidentially to pursue the claim before a second litigation will be precluded.”
Amber J.F., 205 Wis. 2d at 520, 557 N.W.2d at 88.   The party asserting issue
preclusion and seeking its benefits has the burden to establish that it should be
applied.   Paige K.B., 226 Wis. 2d at 219, 594 N.W.2d at 374.
¶13    Claim preclusion establishes that a final judgment between parties is
conclusive for all subsequent actions between those same parties, as to all matters
which were, or which could have been, litigated in the proceedings from which the
judgment arose.   Juneau County, 217 Wis. 2d at 712, 580 N.W.2d at 696.
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No.   01-1952
¶14    It is not clear to us whether the circuit court applied issue or claim
preclusion to dismiss Gasienica’s current lawsuit.   In the 1997 action, however,
the court found that Gasienica’s property had “natural flooding problems,” that the
existence of  the  ditch  decreased these  natural flooding problems and that the
condition of the ditch  (which the court determined to be  “filled with dirt and
debris”) caused no damage to Gasienica’s property that would not have been
caused by the natural flow of water in the area.   Under these factual circumstances,
the circuit court further concluded that Richman had no duty to maintain the ditch.
¶15    Richman  contends  on  appeal  that  the  issues  of  fact  and  of  law
decided  in  the                                                                        1997  case  have  preclusive  effect  in  this  case.    As  appellant,
Gasienica’s primary arguments are:                                                      (1)  that Richman’s failure to remedy an
abatable nuisance between November 1996 and October 2000 gives rise to a new
cause of action different from any cause of action he litigated or could have
litigated in the 1997 case; (2) that he has asserted a new claim for relief in his
allegation that Richman intentionally failed to abate a private nuisance, which is a
theory of recovery that does not require a finding that Richman had an affirmative
duty to maintain the ditch; and (3) that a change in the amount of the dirt and
debris in the ditch allows him to relitigate findings of fact from the previous
action.   We conclude that none of Gasienica’s theories are sufficient to overcome
the preclusive effects of the prior lawsuit.
¶16    Our first task is to determine whether the court in the 1997 action
concluded that the drainage ditch was not a private nuisance.   A private nuisance
is “an unreasonable interference with the interests of an individual in the use and
enjoyment of land.”    Crest Chevrolet-Oldsmobile-Cadillac, Inc. v. Willemsen,
129  Wis. 2d  129,  138  n.2,  384  N.W.2d  692,  695  n.2  (1986).    Whether  the
interference is “unreasonable” is determined by balancing the gravity of the harm
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No.   01-1952
with the utility of the actor’s conduct.                                                 “Unreasonableness” also may be found
when the harm caused by the conduct is serious, but the burden of compensating
the person whose interests are interfered with is not significant enough to cause
cessation of the conduct.   Id. at 139, 384 N.W.2d at 695.   A person is liable for
conduct causing a private nuisance if the resulting invasion of another’s property
interests  is  either                                                                    (1)  intentional  and  unreasonable,  or   (2)  unintentional  and
“otherwise actionable under the rules controlling liability for negligent or reckless
conduct ….”   Id. at 138, 384 N.W.2d at 695 (citing RESTATEMENT (SECOND) OF
TORTS § 822 (1979)).
¶17    In the  1997 action, the circuit court found that over the years the
ditch had become filled with dirt and debris, that the ditch did not substantially
interfere with the natural watershed for surface water run-off and that no damage
was caused to Gasienica’s property that would not have occurred through the
natural flow of water.   As a matter of law, the ditch could not be a private nuisance
under these facts.
¶18    Here, Gasienica seeks total damages of $1,138.80 over a four-year
period not covered by his 1997 action.   The complaints collectively allege only
that the ditch has “not been maintained,” that Richman has “not acted upon the
ditch,” and that Richman has allowed the ditch “to remain in disrepair.”
¶19    Undoubtedly, issue preclusion would defeat Gasienica’s claims for
private nuisance if the only differences between this case and the prior action were
that new floods had created new damages.   This is so because there would be no
grounds for relitigating the previously determined fact that the condition of the
ditch did not exacerbate the natural flooding problems on Gasienica’s land, i.e.,
that any claimed interference with Gasienica’s property was not an unreasonable
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No.   01-1952
interference, as required before an actionable nuisance can arise.   Additionally, an
action in negligence would not lie because in  1997 the circuit court held that
Richman had no duty to maintain the ditch.
¶20    Gasienica, however, argues that he should have another chance to
litigate the issues decided in the previous case because the condition of the ditch
has changed.   In particular, he argues that silt and debris have continued to build
up in the ditch to the point that the ditch is now completely filled in and the water
no longer flows in the ditch.   We are unpersuaded that this lawsuit is based on new
facts material to its disposition.
¶21    Gasienica’s  argument  assumes  that  any  increased  blockage  that
causes less water to flow in the ditch and more water to flow onto the surrounding
property creates an unlawful interference.   However, the relevant starting point is
not the amount of water that would flow onto his land if the ditch were free of all
silt and debris.   Instead, because the 1997 decision established that the existence of
the man-made ditch is beneficial to Gasienica’s property, the relevant comparison
is to the amount of water that would flow onto Gasienica’s property if there were
no man-made ditch at all.   Gasienica’s allegation that the ditch progressed from
being partially filled with silt to being completely filled, even if proved, is not
sufficient  to  raise  the  necessary  inference  that  the  flooding  has  unreasonably
interfered  with  his  property  rights.    Therefore,  Gasienica  is  not  entitled  to  a
complete retrial of the action merely because the water has carried more silt into
the ditch.   Accordingly, we conclude that the issues of fact and law previously
decided in the  1997  case preclude the claims for relief raised by Gasienica’s
current pleadings and we affirm the circuit court’s order of dismissal.
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No.   01-1952
CONCLUSION
¶22    We affirm the circuit court’s order of dismissal because we conclude
that the issues of fact and law actually and necessarily decided in a previous action
between the two parties preclude Gasienica’s ability to recover on the claims for
relief asserted in the pleadings.
By the Court.—Order affirmed.
                                                                                        This  opinion  will  not  be  published.     See  WIS.  STAT  RULE
809.23(1)                                                                               (b)4.
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