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Defenses – Claim Preclusion – Discovery Violation in Prior, Dismissed Case Involving Same Charge

State v. Jason C. Miller, 2004 WI App 117, PFR filed 6/7/04
For Miller: Robert T. Ruth

Issue/Holding: Claim preclusion doesn’t bind subsequent action involving exclusion of evidence due to discovery violation, where sanctioned case was dismissed and then reissued and discovery begun anew::

¶26. We conclude that claim preclusion is not applicable for two independent reasons. First, as is evident from the name of this doctrine, its application bars a claim, or cause of action, but Miller does not seek that result. The claims in this case are the charges that Miller violated Wis. Stat. § 346.63(1)(a) and (b) in the incident occurring on June 3, 2000. However, Miller is not arguing that the State is barred from refiling those charges. Rather, Miller is arguing that in the second action on the same charges, which he implicitly concedes the State was not precluded from filing, the State may not present certain evidence because the admissibility of that evidence was determined in the first action. This is not the remedy that the application of claim preclusion affords.


¶27. The second reason claim preclusion is inapplicable is that there was no “final judgment on the merits.” Judge Krueger’s order excluding the BAC testimony did not in any sense decide the merits of the charges against Miller. The order dismissing the charges also was not a “final judgment on the merits” because it was without prejudice, meaning that no decision on the merits had been made and the State was therefore free to refile the same charges to obtain a judgment on their merits. See Russell v. Johnson, 14 Wis. 2d 406, 411-12, 111 N.W.2d 193 (1961) (holding, in a civil action for damages, that a dismissal without prejudice does not constitute a judgment because it is not the final determination of the rights of the parties in the actions)


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