### 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2020AP1753 Cir. Ct. No. 2020CV 61 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

J OHN S CHULER , P LAINTIFF - A PPELLANT ,

V . S CHUBBE F AMILY C HIROPRACTIC , L TD ., D EFENDANT - R ESPONDENT .

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 a ttorneys were charged $29.79 for “certification” and “retrieval fee[s]” on March 21, 2017, by Schubbe FamilyNo. 2020AP1753

2 Chiropractic, Ltd. (Schubbe) for requested healthcare records under W IS

. S TAT

. § 146.83 (2019

- 20)

. 1 Schuler argues the charg es violated W IS

. S TAT

. § 146.84

. The circuit court granted Schubbe’s motion to dismiss Schuler’s complaint. We affirm , a s 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 revers al 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 o f medical information to his attorneys. ” Schubbe treated Schuler for injuries he sustained in the accident

. O n 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 th e invoice without objection.
¶ 3 W ISCONSIN S TAT

. § 146.83(3f)(b)4.

- 5

. respectively authorize hea l th 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 certifica tion 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 re lease form is a “ person au thorized 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 law suit in January 2020, alleging a violation of
W IS

. S TAT

. § 146.83, common law unjust enrichment, conversion, and a violation
of W IS

. S TAT

. § 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 .” T he circuit court granted Schubbe’s motion to dismiss on the ground that Moya I was binding law at the time of Sc h ubbe’s charge. Schuler appeals.

Discussion
¶ 5 The issue is whether Schuler has alleged facts that, if true, show a violation of W IS

. S TAT

. § 146.83 (3f)(b)4.

- 5. , thereby entitling Schuler to damages under the provisions of W IS

. S TAT

. § 146.84

. 2 To do so, he must show that

2 W ISCONSIN S TAT

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

A CTIONS FOR VIOLATION S ; DAMAGES ; INJUNCTION

. (a) A custodian of records incurs no liability under par. (bm) for the release of records in accordance with [ W IS

. S TAT

. §§] 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

4 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 suf ficiency 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 app licable 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 dismis s. Id. , ¶18. The sufficiency of the complaint depends on the substantive law that underlies the claim, and the alleged
facts relate d to that substantive law must “ plausibly suggest [that the pl aintiff 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 n ovo. 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

e xempt from the charges set forth in W IS

. S TAT

. § 146.83(3f)(b)4.

- 5. Pursuant to
W IS

. S TAT

. § 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 inju red 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 c ompel compliance with [§§]146.82 or 146.83 and may, in the same action, seek damages as provided in this subsection.No. 2020AP1753

5 statutory law : “ W hen 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 Schub be charged the certification charges and retrieval fees , the circuit court dismissed the complaint because, as a matter of law, Schuler could not establish
that Schu bbe negligently, much less willfully or knowi ngly , 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 r etroactivity (no precedential value o f overruled decision ) is irrelevant: retroactivity cannot change the fact that
there c ould not have been a negligen t 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, n either party identifies on

- point caselaw.No. 2020AP1753

6 ¶ 9 Our research, however, supports our conclusion. In State ex rel. Buswell v. Tomah Area School Dist rict , 2007 WI 71, ¶4 6 , 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
determine d not to apply the new rule retroactively as to others. 3 Id. , ¶¶47

- 48. However, the court did appl y 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 bindin g 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 co uld not have committed a negligent,

3 Both p arties 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, t he 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 impre ssion 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

. R ather, 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 9 0, 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 law s , which announced a new rule of law that was one of first impression and was not clearly foreshadowed. Id. , ¶¶9 2

- 98, 100

- 01. Thus , significantly, u nlike here and in Buswell , t he 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 no w be in violation, as in Buswell , imposing forfeitures for violations of the open meetings and public records law s occurring before the issuance of the new rule would be inequitable

. Id. , ¶98

.No. 2020AP1753

7 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 Sc hubbe, however, that “ they are all derivative of, and completely reliant up on, a violation of W IS

. S TAT

. § 146.84.” See Smith v. RecordQuest, LLC , 989 F.3d 513 , 520 (7th Cir. 2021)

.