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Appellate Procedure: Raising Claim Preclusion, § 802.06(8)(b)

State ex rel Kim J. Barksdale v. Litscher, 2004 WI App 130

Issue/Holding:

 ¶12. Accordingly, we agree with the trial court that the only reasonable reading of Wis. Stat. § 802.06, as applied to certiorari proceedings, is that a party who has unsuccessfully moved to dismiss on other grounds may still seek dismissal grounded on claim preclusion at any time before the court has considered the merits of the petitioner’s claims. Here, the warden did so by raising claim preclusion in his brief responding to the substance of Barksdale’s petition, thereby avoiding a waiver of the issue, notwithstanding his earlier motion to dismiss

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