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Mrozek v. Intra Financial Corp.6/9/2005
, in exercising its discretion as to whether to apply issue preclusion, the circuit court considers: (1) whether there are apt to be significant differences in the quality or extensiveness of the two proceedings such that re-litigation of the issue is warranted and (2) whether matters of public policy or individual circumstances would render the application of issue prelusion fundamentally unfair, including whether the party against whom preclusion is sought had an inadequate opportunity or incentive to obtain a full and fair adjudication of the issue in the initial litigation. Michelle T. v. Crozier, 173 Wis. 2d 681, 689, 495 N.W.2d 327 (1993).
There is no one, right answer to these inquiries, but rather, the decision about whether to apply issue preclusion involves the exercise of discretion based on facts developed in the circuit court. Ambrose v. Continental Ins. Co., 208 Wis. 2d 346, 355-56, 560 N.W.2d 309 (Ct. App. 1997). Discretionary decision making of this type is not the task of an appellate court where no circuit court record relative to the issue has been developed. An appellate court is to review a circuit court's exercise of discretion, not exercise discretion without the benefit of either a circuit court decision or circuit court record developed in response to a party's assertion that issue preclusion should be applied. Therefore, although it is possible for an appellate court to conclude that issue preclusion is not available as a matter of law, as we have here, because the same issue was not actually litigated in the prior proceeding, see id. at 356, it is not appropriate for the court of appeals to apply issue preclusion as the initial decision maker. That is beyond the scope of an appellate court's authority.
Accordingly, I conclude that the court of appeals erred in applying issue preclusion to Mrozek's claims and because this question requires examination, I respectfully concur in the majority opinion.
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