Conner, David v. Reilly, Brent et al
Filing
28
OPINION AND ORDER granting 11 Motion for Summary Judgment. Signed by Magistrate Judge Stephen L. Crocker on 1/17/17. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DAVID CONNER,
Plaintiff,
v.
BRENT REILLY, ROCK COUNTY, WISCONSIN and
ROBERT D. SPODEN, Rock County Sheriff,
OPINION AND
ORDER
16-cv-336-slc
Defendants.
This case presents an unfortunate situation of caveat emptor (“buyer beware”). In March
2015, plaintiff David Conner paid $15,000 cash to his son, Christopher Conner, for a 2009
Dodge Challenger. Just days earlier, Christopher had purchased the Challenger for that amount
from a Craigslist seller, relying in part on the seller’s representation that the car was not subject
to any liens. As it turns out, the notice of lien release presented by the seller was phony: the
seller actually had obtained this Challenger by fraud and it remained subject to a lien owned by
Bank of the West. David Conner learned this approximately two and a half months after he
bought the car from his son, when the Rock County Sheriff’s Department seized the Challenger
pursuant to a search warrant. After the sheriff’s department authorized release of the car to its
original owner, Conner filed this lawsuit. Conner claims that by releasing the car without first
allowing Conner the right to a hearing, defendants Rock County, Sheriff Richard Spoden, and
Detective Brent Reilly deprived Conner of his federal right to procedural due process. Conner
also brings a state law conversion claim against Reilly and a claim of civil conspiracy between the
Rock County and Cedar County, Missouri Sheriff’s Departments. Defendants removed the case
to this court on May 23, 2016 (dkt. 1), and have moved for summary judgment on all of
Conner’s claims (dkt. 11). For the reasons stated below, I am granting defendants’ motion.
In support of their summary judgment motion, defendants assert that:
(1) Conner did not have a legitimate claim of entitlement to the
vehicle because his rights were inferior to the Bank of the West’s
and in any event, he was not a good faith purchaser of the vehicle;
(2) Conner had adequate post-deprivation remedies;
(3) Detective Reilly did not participate in the alleged
constitutional violation and in any event, he is entitled to qualified
immunity;
(4) Conner failed to adduce facts showing the existence of an
official policy or custom necessary for Rock County to be liable
under § 1983;
(5) Conner alleged no facts suggesting that Sheriff Spoden
participated in any way in the alleged violation of Conner’s rights;
(6) Conner’s conversion claim fails because he did not have a right
to possession of the vehicle that was superior to the Bank of the
West’s; and
(7) Conner’s civil conspiracy claim fails because he suffered no
damages.
See Dkts. 11, 13.
In response to defendants’ motion, Conner has offered no evidence or argument in
support of any theory of liability under 42 U.S.C. § 1983 against either Rock County or Sheriff
Spoden. Accordingly, I am granting summary judgment to defendants on these claims at the
outset. Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond to an
argument . . . results in waiver.”); Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010) (“it is not
the obligation of this court to research and construct legal arguments open to parties, especially
when they are represented by counsel, and we have warned that perfunctory and undeveloped
2
arguments, and arguments that are unsupported by pertinent authority, are waived”) (brackets
and internal quotation marks omitted).
As for Conner’s § 1983 and conversion claims against defendant Reilly, I find that these
claims fail because Conner has not established that he ever had a legitimate claim of entitlement
to the Challenger, or that Reilly was personally involved in the deprivation of his alleged
property interest or that Conner lacked adequate post-deprivation remedies for the alleged
deprivation.
Finally, Conner’s conspiracy claim cannot survive summary judgment because he has
failed to come forth with any evidence establishing any agreement between the Rock County and
Cedar County sheriff’s departments to commit unlawful acts or that he suffered damages as a
result of their actions.
The material facts are largely undisputed:
FACTS
In June 2013, Michael and Linda Larsen, who lived in El Dorado Springs, Missouri,
purchased a used 2009 Dodge Challenger R/T,1 VIN # 2B3LJ54T39H503270 (the
“Challenger”). The Larsens financed their purchase of the Challenger through a secured loan
from the Bank of the West. The Bank of the West had a perfected security interest in the
Challenger, which was noted on the Challenger’s Certificate of Title.
1
“R/T is the performance marker used on Dodge automobiles since the 1960s . . .. R/T stands
for Road/Track (no ‘and’). R/T models come with R./T badging, upgraded suspension, tires, brakes and
more powerful engines.” From 2008 forward, the Dodge Challenger R/T has come equipped with a 5.7 liter
Chrysler Hemi engine rated above 370 HP. See https://en.wikipedia.org/wiki/R/T, lasted visited on January
16, 2017. In other words, the Larsens’ Challenger was a high performance vehicle that had features
popular with muscle car enthusiasts.
3
A little less than two years later, in March 2015, the Larsens advertised the Challenger
for sale on Craigslist, a well-known, on-line classified advertising site. At the time, the balance
due on the Larsen loan from Bank of the West was approximately $15,000. On or about March
9, 2015, a person who identified himself as “L.C. Turner” replied to the Larsens’ ad and agreed
to purchase the Challenger for $22,500. Turner provided the Larsens with a cashier’s check
purportedly issued by Bank of America, payable to Bank of the West, in the amount of $22,500.
The Larsens sent this cashier’s check to Bank of the West, with instructions that it pay
the balance due on the Larsen’s car loan and return the remainder, approximately $7,000, to the
Larsens. The check was presented to the bank on March 9, 2015. The Bank of the West gave
provisional credit for the check drawn on the Bank of America and put the Larsen loan in “paid
off” status, but it did not release its lien on the Challenger. After Bank of the West informed
Linda Larsen that the Larsen loan balance was zero, the Larsens signed and dated the Missouri
certificate of title for the Challenger and released it to L.C. Turner.
As it turns out, Turner’s cashier’s check was a phony. On March 13, 2015, it was
returned to Bank of the West unpaid and marked “REFER TO MAKER.” Upon receipt, the
Bank of the West promptly reversed the provisional credit it had given to the Larsens towards
their loan balance. On March 20, 2015, Linda Larsen was informed that the check was
fraudulent and had not been paid by Bank of America, and as a result, Bank of the West still
had a lien on the Challenger and the Larsens still owed $15,000. Linda Larsen reported the
fraud to the Cedar County, Missouri sheriff’s department, which in turn listed the Challenger
as stolen in the National Crime Information Center (NCIC) database.
4
Meanwhile, on or before March 12, 2015, a person–who may or may not have been the
same person who dealt with the Larsens–posted an ad on Craigslist offering the Challenger for
sale. Christopher Conner responded to the ad. Christopher Conner is the son of plaintiff David
Conner, who lives in Rock County, Wisconsin. Christopher Conner buys and sells cars as a
hobby and has worked as an auto salesperson for several Rock County area dealerships.
Christopher Conner sent a text message to the telephone number on the Craigslist ad to ask
whether the car was still for sale; he received a response that it was. Christopher Conner then
called the number and talked to the seller, eventually agreeing to buy the car for $15,000 cash.
On the afternoon of March 12, 2015 Conner sent two of his employees, Adam Murwin and
Dalton Johns, to Calumet City, Illinois to complete the purchase of the vehicle.
In a parking lot near the Calumet City police department, Murwin and Johns met a man
who was driving the Challenger. After Johns test drove and inspected the Challenger, he gave
the seller $15,000 in cash. The seller gave Johns the keys to the Challenger, the Challenger’s
Missouri certificate of title bearing the signatures of Michael and Linda Larsen, a bill of sale
(bearing Michael Larsen’s name but not Linda’s) and a Notice of Lien Release letter purporting
to be from Bank of the West to Linda and Michael Larsen dated February 6, 2015. The
Missouri certificate of title contained the following statement:
LIEN RELEASE To release any lien shown on the face of this title,
the lienholder must complete a notarized lien release (DOR 4809)
to be attached to this title before the purchaser applies for a
Certificate of Title.
The purported Notice of Lien Release letter that the seller gave to Johns was not notarized, nor
was Missouri Form 4809 attached to the certificate of title.
5
During this transaction Murwin and Johns did not ask the seller what his name was and
they did not ask him to provide any identification, nor did the seller volunteer such information.
Murwin and Johns did not attempt to call the phone number on the Notice of Lien Release or
otherwise attempt to verify its authenticity. Had they done these things, then they might have
discovered that the Notice of Lien Release was fake. Contrary to what was represented on the
phony letter, the Bank of the West had not released its lien on the Challenger on February 6,
2015 or at any other time. As of March 12, 2015, the Larsens still owed more than $15,000
on their loan for the Challenger and the Bank of the West still had a security interest in the
vehicle.
Unaware of these facts, Johns and Murwin returned to Rock County with the Challenger
and the paperwork provided by the seller and they delivered everything to Christopher Conner.
Several days later, Conner transferred the Challenger to his dad, plaintiff David Conner, for an
agreed-upon price of $15,000. On April 9, 2015, David Conner registered the Challenger with
the Wisconsin Department of Transportation, Department of Motor Vehicles (“DMV”). The
DMV issued a certificate of title registering the Challenger in the name of David Conner.
About two and a half months later, the Cedar County Sheriff’s Department contacted
the Rock County Sheriff’s Department, requesting its assistance in recovering a stolen Dodge
Challenger believed to be located in Rock County, Wisconsin. The matter was assigned to
defendant Brent Reilly, a detective for the Rock County Sheriff’s Department. Det. Reilly ran
a check of the Challenger’s VIN with DMV. DMV records indicated that the Challenger had
been registered to David Conner in April 2015 and that the Challenger had been reported as
stolen.
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On June 25, 2015, Det. Reilly and Detective Coreen Bilhorn of the Rock County
Sheriff’s Office went to David Conner’s residence where they made contact with him. Conner
told them he was in possession of the Challenger but he would not surrender it without a
warrant. Accordingly, Det. Reilly applied to the Rock County Circuit Court for a warrant to
seize the 2009 Dodge Challenger as evidence of the crime of receiving stolen property. The
court issued the search warrant, which stated:
NOW, THEREFORE, in the name of the State of
Wisconsin, you are commanded forthwith to search the said
property, including outbuildings and if the same or any portion
thereof are found, to bring the same and the person in whose
possession the same are found, and return this warrant within 48
hours before the said Court to be dealt with according to law.
Det. Reilly returned to the Conner residence, produced the search warrant and arranged
for a tow truck to transport the Challenger to Rock County’s impound lot. The impound lot is
under the control of the Bureau of Identification, a department of the Rock County Sheriff’s
Department. Det. Reilly, however, never brought Conner or the 2009 Dodge Challenger “before
the said Court to be dealt with according to law.”
Det. Reilly informed the Cedar County Sheriff’s Department that the Dodge Challenger
had been located and impounded; the Cedar County Sheriff’s Department informed Reilly that
it intended to take possession of the vehicle. On June 26, 2015, the Cedar County Sheriff’s
Department informed Rock County that it could release the stolen Challenger to Mike and
Linda Larsen.
Rock County Sheriff’s Department Detective Kamholz asked Det. Reilly whether he had
further need for the Challenger in his criminal investigation. Det. Reilly responded that he did
not, since he had photographs of the vehicle and had decided not to charge Conner for being in
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possession of stolen property. Kamholz sent an email to the Bureau of Identification to report
that the Cedar County Sheriff’s Department had said that the Challenger could be released to
Michael and Linda Larsen. Pursuant to these instructions, someone working at the Bureau of
Identification released the Challenger to Linda Larsen on June 29, 2015. Det. Reilly did not
work at the impound lot and was not involved in the decision to release the Challenger to Linda
Larson. Bank of the West paid for Linda Larsen’s travel expenses.
OPINION
I. Summary Judgment Standard
Summary judgment is proper “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986); McNeal v. Macht, 763 F. Supp. 1458, 1460–61 (E.D. Wis. 1991).
“Material facts” are those under the applicable substantive law that “might affect the outcome
of the suit.” See Anderson, 477 U.S. at 248. A dispute over “material fact” is “genuine” if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In
deciding a motion for summary judgment, the court will view the facts in the light most
favorable to the non-moving parties. Crull v. Sunderman, 384 F.3d 453, 460 (7th Cir. 2004). As
the Seventh Circuit has explained, summary judgment is the “put up or shut up” moment in a
lawsuit. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). “Once a party has
made a properly-supported motion for summary judgment, the opposing party may not simply
rest upon the pleadings but must instead submit evidentiary materials that ‘set forth specific
8
facts showing that there is a genuine issue for trial.’” Harney v. Speedway SuperAmerica, LLC, 526
F.3d 1099, 1104 (7th Cir. 2008) (citing Fed. R. Civ. P. 56(e)).
II. Procedural Due Process
Conner brings a claim under 42 U.S.C. § 1983, alleging that he was deprived of his
property–the Challenger–without due process of law. To prevail on a § 1983 procedural due
process claim, Conner must demonstrate that: (1) he has a cognizable liberty or property
interest; (2) he suffered a deprivation of that interest by someone acting under color of state law;
and (3) he did not receive the process that he was due. Khan v. Bland, 630 F.3d 519, 527 (7th
Cir. 2010). In any due process case that alleges a deprivation of property, “the threshold
question is whether a protected property interest actually exists.” Cole v. Milwaukee Area Technical
Coll. Dist., 634 F.3d 901, 904 (7th Cir. 2011). To claim a property interest protected by the
Fourteenth Amendment, “a person . . . . must have more than a unilateral expectation of [the
claimed interest]. He must, instead, have a legitimate claim of entitlement to it.” Khan, 630
F.3d at 527 (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)). A
legitimate claim of entitlement is “defined by existing rules or understandings that stem from an
independent source such as state law.” Roth, 408 U.S. at 577.
Defendants argue that Conner never acquired a legitimate property interest in the
Challenger because at all times the Bank of the West had a lien on it. Citing Wis. Stat. §§
342.19(6) and 409.316, defendants maintain that the Bank of the West’s security interest in
the Challenger remained perfected even though Wisconsin issued plaintiff a “clean” certificate
of title covering the Challenger without noting the Bank of the West’s security interest, and that
9
Bank of the West’s security interest was effective for at least four months after Wisconsin issued
the certificate of title to Conner. Br. in Supp., dkt. 13 at 9-10. Finally, defendants assert that
even though the Wisconsin DMV may have accepted the fraudulent lien release given to Dalton
Johns by the fraudster, this acceptance did not destroy the lien.
In response to these arguments, Conner admits that the Bank of the West never released
its lien on the Challenger. Nonetheless, he insists that he was a “good faith purchaser” of the
vehicle and, as a consequence, has a legitimate claim of entitlement to it. Plt.’s Br. in Response,
dkt. 23, at 9-12.
Conner’s good-faith-purchaser argument merits little discussion. Even if he was a good
faith purchaser who might have property rights superior to that of the Larsens, that fact is
immaterial in the face of the undisputed evidence that Bank of the West never released its
secured interest in the Challenger. As defendants point out, even a good faith purchaser for
value acquires the property subject to a perfected security interest. See Wis. Stat. §§ 409.201(1)
(“Except as otherwise provided in chs. 401 to 411, a security agreement is effective according
to its terms between the parties, against purchasers of the collateral, and against creditors.”)
(mirroring UCC § 9-201(a)); 409.315(1)(a) (“A security interest or agricultural lien continues
in collateral notwithstanding sale, lease, license, exchange, or other disposition thereof unless the
secured party authorized the disposition free of the security interest or agricultural lien”)
(mirroring UCC § 9-315(a)(1)).
It is undisputed that the con man calling himself “L.C. Turner” never acquired a proper
release of lien on the Challenger, and therefore, that the Bank of the West retained a security
10
interest on the vehicle at all times.2 Thus, the Larsens could only convey title to “Turner”
subject to Bank of the West’s lien, and “Turner”–or his accomplice– could only convey the same
title to Conner. Accord Green v. Arcadia Fin., 174 Misc. 2d 411, 413, 663 N.Y.S.2d 944 (Sup.
Ct. 1997), aff'd, 261 A.D.2d 896, 689 N.Y.S.2d 596 (1999) (seller who obtained clean title to
vehicle by submitting phony release of lien to Department of Motor Vehicles did not acquire
voidable unencumbered title to vehicle but instead title remained subject to finance company’s
lien); Sheridan Suzuki, Inc. v. Caruso Auto Sales, Inc., 110 Misc. 2d 823, 826, 442 N.Y.S.2d 957
(Sup. Ct. 1981) (where thief did not perfect voidable title to vehicle he obtained by passing
fraudulent check, he could not pass good title to subsequent purchaser).
Conner does not advance any argument in opposition to defendants’ contention that the
Bank of the West’s secured property interest in the Challenger was superior to whatever property
interest he might have had and would have prevailed in any action between Conner and the
Bank of the West. Neither does Conner deny that a secured party may take possession of its
collateral when it has been transferred to another party and the loan is not paid. Production
Credit Ass’n of Madison v. Nowatski, 90 Wis. 2d 344, 353-354 (Wis. 1979), citing Official UCC
comment 3 to Wis. Stat. § 409.306 (“[S]ince the transferee takes subject to the security interest,
the secured party may repossess the collateral from him or in an appropriate case maintain an
action for conversion.”). These things being so, Conner has failed to establish that he had a
2
Conner asserts that the Bank of the W est authorized the sale from the Larsens to Tucker and
thereby released its security interest in the vehicle. However, the evidence that Conner cites in support
of this assertion does not support it. Conner cites to certain allegations in the amended complaint, but
defendants denied those allegations. He also cites the declaration of Linda Larsen, but Larsen stated only
that she and her husband “released the Challenger to L.C. Turner after Bank of the W est informed me that
our loan balance was zero.” Decl. of Linda Larsen, dkt. 14, at ¶10. She does not state that Bank of the
W est had released its lien or had authorized the transfer of the vehicle to Turner.
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legitimate claim of entitlement to the Challenger. Accord Ochner v. Stedman, 2013 WL 990441,
at *4 (E.D. Pa. Mar. 14, 2013), aff'd, 572 F. App'x 143 (3d Cir. 2014) (state court’s finding that
plaintiff could not acquire good title to truck that had been illegally obtained by seller precluded
court from finding that plaintiff had legitimate claim of entitlement to tow truck so as to
establish procedural due process violation).
There is another reason why Conner’s claim against Det. Reilly fails: a valid § 1983 claim
for damages against an official in his individual capacity requires a showing of direct
responsibility for the improper action. Moore v. State of Indiana, 999 F.2d 1125, 1129 (7th Cir.
1993). In other words, “an individual cannot be held liable in a § 1983 action unless he caused
or participated in an alleged constitutional deprivation.” Id. (quoting Wolf–Lillie v. Sonquist, 699
F.2d 864, 869 (7th Cir. 1983)). Conner does not challenge the propriety of the court-issued
search warrant under which the Challenger was seized, and for good reason: the Challenger was
listed as stolen in the NCIC database, and thus probable cause existed to seize it. Accord Tucker
v. Williams, 682 F.3d 654, 661 (7th Cir. 2012) (no predeprivation hearing required where initial
seizure justified under Fourth Amendment). What Conner contests is the release of the
Challenger to Linda Larsen. However, Conner has no evidence that Det. Reilly is the person
who released the Challenger or authorized its release. Those acts were done by Detective
Kamholz or a person working at the impound lot, neither of whom Conner has sued.
Conner’s evidentiary shortcomings make sense only when one understands the theory
underlying his due process claim. As best this court can discern, Conner’s entire due process
claim rests on the fact that the search warrant authorizing the seizure of the Challenger specified
that both the car and “the person in whose possession the same is found,” were to be brought
12
before the issuing judge within 48 hours to “be dealt with according to law.” According to
Conner, this was a “due process condition” placed upon the seizure of the vehicle by the circuit
court judge that was “put in place to allow [Conner] to assert his due process rights.” Br. in
Supp., dkt. 23, at 16. In other words, Conner argues, because the warrant explicitly spelled out
the process that he was due and Reilly denied him that process, his claim is viable regardless
whether he had a legitimate claim of entitlement to the Challenger or Reilly was personally
involved in the decision to give the Challenger to Linda Larsen.
Conner’s theory is faulty.
The language on the warrant was boilerplate language
providing that the warrant was to be returned to the court within 48 hours of the detectives’
seizure of the Challenger. To the extent that the warrant also appears to require that the
“person in whose possession” the searched-for property was found should be brought to court
within that time period, it is reasonable to assume that this condition only would be necessary
if Conner were to have been arrested for a crime in connection with the stolen Challenger, that
is, if Conner were to have been deprived of his liberty. The warrant, after all, authorized Det.
Reilly to search for evidence “concerned in the commission of Receiving Stolen Property,” and
it authorized seizure of the vehicle and the arrest of the “person in whose possession the same
was found.” To Det. Reilly’s credit, he did not arrest Conner for receiving stolen property,
presumably because Det. Reilly credited Conner’s explanation that he had no idea that the car
had been stolen when he purchased it. This obviated any need to bring Conner personally
before the court for an initial appearance on a criminal charge. In short, Conner obtained the
best possible outcome available to him personally on the court’s warrant.
13
The search warrant, which issued pursuant to the Fourth Amendment, does not say
anything about providing Conner with a Fifth Amendment “due process hearing” or the right
to contest the seizure of the vehicle within 48 hours of execution of the warrant. Wisconsin
provides such rights in Wis. Stat. § 968.20, which states:
Any person claiming the right to possession of property seized
pursuant to a search warrant . . . may apply for its return to the
circuit court for the county in which the property was seized or
where the search warrant was returned.
However, Conner did not request a hearing pursuant to this statute. Further, Conner does not
argue—and the evidence, the law and common sense do not suggest—that the warrant’s
command that the person in possession of the stolen Challenger “be brought before the Court
to be dealt with according to law” was for the purpose of conducting a § 968.20 hearing.
Contrary to Conner’s unfounded assertions, had he been brought to court as the warrant
commanded, it would have been to face criminal charges, not to sort out his claim of ownership
to the Challenger.
Apart from relying on his exegesis of the language in the court’s criminal search warrant,
Conner cites no authority to support his claim that a predeprivation hearing was required in this
case before the Bureau of Identification could release the Challenger to Linda Larsen. As
defendants point out, the State need not provide a predeprivation remedy so long as adequate
postdeprivation remedies are available. Hudson v. Palmer, 468 U.S. 517, 533-535 (1984). As
just noted, Conner could have promptly requested a hearing to request the return of the
Challenger under § 968.20. This remedy was available to him at the time, although it is too late
for him to request a hearing now. See City of Milwaukee v. Glass, 2001 WI 61, 243 Wis. 2d 636,
14
628 N.W. 2d 343 (holding that § 968.20 creates an in rem proceeding and cannot be used to sue
for damages once property was out of city’s hands).\
In addition, Conner still could bring an action against the Bank of the West and the
Larsens for replevin and conversion. Tucker, 682 F.3d at 661 (no due process violation where
postdeprivation state law remedies such as conversion or replevin were available).
The
availability of these other potential remedies ends Conner’s due process claim.
III. Conversion
The elements of a conversion claim are: (1) intentional control or taking of property
belonging to another, (2) without the owner’s consent, (3) resulting in serious interference with
the rights of the owner to possess the property. Bruner v. Heritage Cos., 225 Wis. 2d 728, 736,
536 N.W. 2d 814 (Ct. App. 1999). Conner’s conversion claim fails for the same reason his due
process claim fails: he did not have a right to possess the Challenger that was superior to Bank
of the West’s right to possess it. Accordingly, none of the defendants interfered with Conner’s
rights as an owner of the vehicle when they seized it and then released it to Linda Larsen.
IV. Civil Conspiracy Between Rock County and Cedar County Sheriff’s Departments
Civil conspiracy requires: “(1) The formation and operation of the conspiracy; (2) the
wrongful act or acts done pursuant thereto; and (3) the damage resulting from such act or acts.”
Modern Materials, Inc. v. Advanced Tooling Specialists, Inc., 206 Wis.2d 435, 448, 557 N.W.2d 835,
840 (Ct. App. 1996). Additionally, to form a conspiracy there must be an “agreement to violate
or disregard the law,” and the persons involved must “knowingly [be] members of the
15
conspiracy.” Wis JI—Civil 2800; see Augustine v. Anti–Defamation League of B'nai B'rith, 75 Wis.2d
207, 216, 249 N.W.2d 547, 552 (1977) (an agreement toward the attainment of an illegal
objective is a necessary element of a civil conspiracy). “In short, a civil conspiracy entails two
or more persons knowingly committing wrongful acts.” Bruner v. Heritage Companies, 225 Wis.
2d 728, 736, 593 N.W.2d 814, 818 (Ct. App. 1999).
Conner has failed to allege any facts from which a jury could find the elements of a
conspiracy. There is no evidence that any wrongful acts were committed by the defendants,
much less that the Rock County and Cedar County sheriff’s departments agreed to knowingly
commit wrongful acts. Further, Conner cannot show that he was damaged as a result of the
actions taken by the respective sheriff’s departments. Contrary to Conner’s assertion, Conner
did not “lose” the Challenger. He had no legitimate claim to it in the first place. To the extent
that Conner was damaged, those damages were caused by the fraudster who sold him the car,
not by any actions taken by the Rock County and Cedar County Sheriff’s Departments.
The tone of this order granting judgment against Conner in favor of the defendants might
sound unsympathetic to Conner. Actually, this court is very sympathetic to Conner’s situation:
he is out $15,000 cash plus any accrued attorney’s fees, and he has suffered immeasurable stress,
anger, and perhaps a sense of powerlessness to obtain what he thinks is the fair result here. It
is not fair that Conner has been victimized in this transaction, but he was victimized by “L.C.
Turner” (as were the Larsens, although they eventually were let off the hook by the bank when
the Challenger was recovered). Yes, Conner’s son and his employees took rudimentary steps to
avoid a Craigslist scam–-they dealt relatively locally, they met the seller in person, and they
looked at the paperwork that the seller offered—but this wasn’t enough in this case because this
16
was a sophisticated fast-moving, fraudulent flip of a desirable muscle car involving forged
documents and a quick turn-around. Rock County, Sheriff Spoden and Det. Reilly did not
violate Conner’s constitutional rights and they did not commit any torts against him. The law
enforcement agents in Rock County and Cedar County were just doing their jobs. They are not
liable to Conner in this case.
ORDER
IT IS ORDERED that the motion by defendants for summary judgment is GRANTED
in its entirety. The clerk of court shall enter judgment for defendants and close this case.
Entered this 17th day of January, 2017.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge
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