COURT OF APPEALS

DECISION

DATED AND FILED

December 22, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP1753 Cir. Ct. No. 2020CV61

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

JOHN SCHULER,

 PLAINTIFF-APPELLANT,

 V.

SCHUBBE FAMILY CHIROPRACTIC, LTD.,

 DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Winnebago

County: SCOTT C. WOLDT, Judge. Affirmed. 

Before Gundrum, P.J., Neubauer and Reilly, JJ.

¶1 REILLY, J. John Schuler’s attorneys were charged $29.79 for 

“certification” and “retrieval fee[s]” on March 21, 2017, by Schubbe Family 
No. 2020AP1753

2

Chiropractic, Ltd. (Schubbe) for requested healthcare records under WIS. STAT.

§ 146.83 (2019-20).

1

 Schuler argues the charges violated WIS. STAT. § 146.84. 

The circuit court granted Schubbe’s motion to dismiss Schuler’s complaint. We 

affirm, as the charges were made after our release of Moya v. Aurora Healthcare, 

Inc., 2016 WI App 5, 366 Wis. 2d 541, 874 N.W.2d 336 (Moya I), and prior to 

our supreme court’s reversal of Moya I in Moya v. Aurora Healthcare, Inc., 2017 

WI 45, 375 Wis. 2d 38, 894 N.W.2d 405 (Moya II).

Background

¶2 Schuler retained an attorney after an accident and signed a HIPPA 

release “authorizing the release of medical information to his attorneys.” Schubbe 

treated Schuler for injuries he sustained in the accident. On March 16, 2017, 

Schuler’s attorneys requested certified copies of his medical records from 

Schubbe. Schubbe responded on March 21, 2017, with an invoice for $87.19 that 

included a $21.28 retrieval fee and $8.51 certification fee in addition to a charge 

per page. Schuler’s attorneys paid the invoice without objection.

¶3 WISCONSIN STAT. § 146.83(3f)(b)4.-5. respectively authorize health 

care providers to charge a $20 retrieval fee and an $8 certification fee where “the 

requester is not the patient or a person authorized by the patient.” Moya I held 

that personal injury attorneys were not exempt from certification charges and 

retrieval fees. Moya I, 366 Wis. 2d 541, ¶¶1, 11-12. Moya I was released on 

December 1, 2015, and ordered published on January 27, 2016. Our supreme 

court reversed Moya I on May 4, 2017, holding that an attorney authorized by his 

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2020AP1753

3

or her client in writing via a HIPAA release form is a “person authorized by the 

patient” under § 146.83(3f)(b)4.-5. and is exempt from certification charges and 

retrieval fees. Moya II, 375 Wis. 2d 38, ¶2.

¶4 Schuler filed this lawsuit in January 2020, alleging a violation of 

WIS. STAT. § 146.83, common law unjust enrichment, conversion, and a violation 

of WIS. STAT. § 100.18. Schubbe responded with a motion to dismiss, arguing that 

at the time it charged the retrieval and certification fees, “Wisconsin law expressly 

and unambiguously permitted it to do so.” Schuler replied that Moya I was “a 

non-final and non-binding Court of Appeals decision.” The circuit court granted 

Schubbe’s motion to dismiss on the ground that Moya I was binding law at the 

time of Schubbe’s charge. Schuler appeals.

Discussion

¶5 The issue is whether Schuler has alleged facts that, if true, show a 

violation of WIS. STAT. § 146.83(3f)(b)4.-5., thereby entitling Schuler to damages 

under the provisions of WIS. STAT. § 146.84.

2

 To do so, he must show that 

 

2

 WISCONSIN STAT. § 146.84(1) provides, in pertinent part:

 ACTIONS FOR VIOLATIONS; DAMAGES; INJUNCTION. (a) A 

custodian of records incurs no liability under par. (bm) for the 

release of records in accordance with [WIS. STAT. §§] 146.82 or 

146.83 while acting in good faith.

 (b) Any person, including the state or any political 

subdivision of the state, who violates [§§] 146.82 or 146.83 in a 

manner that is knowing and willful shall be liable to any person 

injured as a result of the violation for actual damages to that 

person, exemplary damages of not more than $25,000 and costs 

and reasonable actual attorney fees.

(continued)
No. 2020AP1753

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Schubbe “negligently” or “knowing[ly] and willful[ly]” violated the law. See

§ 146.84(1)(b)-(bm). “A motion to dismiss for failure to state a claim tests the 

legal sufficiency of the complaint.” Data Key Partners v. Permira Advisers LLC, 

2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693 (citation omitted). To

survive a motion to dismiss, a complaint “must allege facts that, if true, plausibly 

suggest a violation of applicable law.” Id., ¶21. When we review a motion to 

dismiss we accept as true the factual allegations in the complaint but we do not 

accept “legal conclusions” contained therein, as stated legal conclusions are 

insufficient to withstand a motion to dismiss. Id., ¶18. The sufficiency of the 

complaint depends on the substantive law that underlies the claim, and the alleged 

facts related to that substantive law must “plausibly suggest [that the plaintiff is] 

entitled to relief.” Id., ¶31. We review a circuit court’s decision on a motion to 

dismiss for failure to state a claim de novo. Id., ¶17.

¶6 When Schubbe charged Schuler the certification charges and 

retrieval fees, the law in effect (Moya I) was that Schuler’s attorney was not 

exempt from the charges set forth in WIS. STAT. § 146.83(3f)(b)4.-5. Pursuant to 

WIS. STAT. § 752.41(2), “[o]fficially published opinions of the court of appeals 

shall have statewide precedential effect.” Our common law is in accord with our 

 

 (bm) Any person, including the state or any political 

subdivision of the state, who negligently violates [§§] 146.82 or 

146.83 shall be liable to any person injured as a result of the 

violation for actual damages to that person, exemplary damages 

of not more than $1,000 and costs and reasonable actual attorney 

fees.

 (c) An individual may bring an action to enjoin any violation 

of [§§] 146.82 or 146.83 or to compel compliance with 

[§§]146.82 or 146.83 and may, in the same action, seek damages 

as provided in this subsection.
No. 2020AP1753

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statutory law: “When the court of appeals construes a statute in a published 

opinion, that opinion binds every agency and every court until it is reversed or 

modified.” State ex rel. Dicks v. Employe Tr. Funds Bd., 202 Wis. 2d 703, 709, 

551 N.W.2d 845 (Ct. App. 1996). As Moya I was binding law at the time 

Schubbe charged the certification charges and retrieval fees, the circuit court 

dismissed the complaint because, as a matter of law, Schuler could not establish 

that Schubbe negligently, much less willfully or knowingly, violated the statute at 

the time of the records charge. 

¶7 Schuler argues that Moya I, once overruled by Moya II, “never was 

the law” under the “Blackstonian doctrine” that decisions are applied retroactively 

unless a court says otherwise. See Heritage Farms, Inc. v. Markel Ins. Co., 2012 

WI 26, ¶44, 339 Wis. 2d 125, 810 N.W.2d 465; State v. Picotte, 2003 WI 42, ¶42, 

261 Wis. 2d 249, 661 N.W.2d 381 (Wisconsin “generally adheres to the 

‘Blackstonian doctrine,’ which provides that ‘a decision to overrule or repudiate 

an earlier decision is retrospective in operation.’” (citation omitted)). 

¶8 The issue is not simply whether there was a violation or not, or 

whether Schubbe was negligent or not. Rather, the issue is whether Schuler can 

establish entitlement to damages because Schubbe negligently, willfully, or

knowingly violated the statute. Schubbe argues that retroactivity (no precedential 

value of overruled decision) is irrelevant: retroactivity cannot change the fact that 

there could not have been a negligent or a knowing violation because there was no 

violation under binding law at that time. Schuler has not provided any authority 

for the retroactive imputation of a state of mind or objective reasonableness as it 

pertains to entitlement to damages for an alleged violation of the law, when there 

was no violation at the time. In fact, neither party identifies on-point caselaw.
No. 2020AP1753

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¶9 Our research, however, supports our conclusion. In State ex rel. 

Buswell v. Tomah Area School District, 2007 WI 71, ¶46, 301 Wis. 2d 178, 732 

N.W.2d 804, our supreme court announced a new reasonableness standard for 

open meetings notices. The court engaged in a “sunbursting” analysis whereby it 

determined not to apply the new rule retroactively as to others.3 Id., ¶¶47-48. 

However, the court did apply the new standard and found a violation in that case. 

Id., ¶49. Significantly, the court nevertheless stated that, because a knowing 

violation of the prior binding law was required, individuals “who complied with 

the law as it then existed cannot be sanctioned for a violation based on an 

interpretation first announced today.” Id., ¶52. Here, whether Moya II applies 

retroactively or not is irrelevant as Schubbe could not have committed a negligent, 

 

3

 Both parties also address the concept of “sunbursting,” “an approved method of 

dealing with both changes within the common law as well as changes in the way that courts 

interpret statutes.” See State v. Thiel, 2001 WI App 52, ¶7, 241 Wis. 2d 439, 625 N.W.2d 321. 

Under this analysis, the announcement of a new judicial holding is ordinarily retroactive unless it 

“establishes a new principle of law, either by overruling clear past precedent on which litigants 

may have relied, or by deciding an issue of first impression whose resolution was not clearly 

foreshadowed,” and retroactive application will either “further or retard” the policy announced 

and will “produce substantial inequitable results.” State ex rel. Buswell v. Tomah Area Sch. 

Dist., 2007 WI 71, ¶47, 301 Wis. 2d 178, 732 N.W.2d 804. As explained herein, we do not rely 

on the concept of sunbursting, nor do we address Schuler’s other arguments based on the concept, 

as our decision is not based on the precedential value of Moya I in light of Moya II. Rather, our 

decision is based on the grounds that Schuler has failed to provide any authority for a retroactive 

imputation of hypothetical facts regarding Schubbe’s mens rea or the objective reasonableness of 

its charges based on the fact that there was no violation at the time the charges were made. 

That said, while not directly applicable, State v. Beaver Dam Area Development Corp., 

2008 WI 90, 312 Wis. 2d 84, 752 N.W.2d 295, also provides guidance. In that case, our supreme 

court applied a “sunbursting” analysis to its decision involving open meetings and public records 

laws, which announced a new rule of law that was one of first impression and was not clearly 

foreshadowed. Id., ¶¶92-98, 100-01. Thus, significantly, unlike here and in Buswell, the court’s 

decision did not overrule prior binding case law applicable to and requiring a contemporaneous 

negligent or knowing violation. Nevertheless, the court held that in considering reliance interests 

as to others who would now be in violation, as in Buswell, imposing forfeitures for violations of 

the open meetings and public records laws occurring before the issuance of the new rule would be 

inequitable. Id., ¶98. 
No. 2020AP1753

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willful, or knowing violation as its conduct was in accordance with the law at the 

time of its act.4 We affirm the circuit court’s judgment for dismissal.5

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

 

4

 Shuler acknowledges that Schubbe is charged with knowledge of the law, but argues 

that Schubbe should have anticipated or known that Moya II would be overruled, such as when 

the supreme court accepted the petition for review or based on information that others had, which 

suggested that the healthcare industry knew that the Moya I decision was flawed. This ignores 

that Moya I was binding law until reversed or modified. 

5

 As noted, Schuler claimed both statutory and common law causes of action in his 

complaint. We agree with Schubbe, however, that “they are all derivative of, and completely 

reliant upon, a violation of WIS. STAT. § 146.84.” See Smith v. RecordQuest, LLC, 989 F.3d 

513, 520 (7th Cir. 2021).