Wilmot et al v. Merkel

UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF WISCONSIN

In re:

ADAM IVAN MERKEL, Case Number: 25-12619-7

Debtor.

THOMAS O. WILMOT and
SANDRA RADZINSKI,

Plaintiffs,

v. Adversary Number: 26-00013

ADAM IVAN MERKEL,

Defendant.

DECISION ON DEFENDANT’S MOTION TO DISMISS

Before the Court for ruling is the motion of Defendant Adam Merkel
(“Merkel”) to dismiss the complaint of the Plaintiffs, Thomas Wilmot (“Wilmot”)
and Sandra Radzinski (“Radzinski”). The complaint alleges that each Plaintiff
sustained injury and damages because of a willful and malicious act of
Defendant.
For the reasons below, Defendant’s motion to dismiss the complaint is
granted.
FACTS
The following facts are not contested and stipulated.
1

1
Dkt. No. 8 at 7-8, ¶¶ 1-2.
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 1 of 26

2

Defendant and Samuel Hurlburt are co-owners of H & M Retailers d/b/a
Yeti Motors (“Yeti”). In October 2022, Wilmot bought a 2003 Chevrolet
Silverado from Yeti. Radzinski was not a party to the purchase agreement but
agreed to pay the down payment. Radzinski delivered a check payable to Yeti in
the amount of $3,000.00 for Wilmot’s purchase.
Two days later, Radzinski stopped payment on her check. She offered at
some point to return the truck. The offer was refused by Yeti. She did not own
the truck. Wilmot was the owner.
In November, Yeti sued Plaintiffs in Oneida County Small Claims Court.
Merkel contacted Radzinski saying he hoped the matter could be resolved and
he did not want to contact the authorities but that the down payment needed
to be paid.
Cambrya Hurlburt, Samuel Hurlburt’s wife, contacted the Oneida County
Sheriff’s Department with a copy of the purchase contract, Radzinski’s check,
and evidence Radzinski stopped payment on that check.
Wilmot and Radzinski were interviewed by members of the Sheriff’s
Department. The Sheriff’s Department seized and impounded the Silverado.
Radzinski was arrested on a felony charge.
The District Attorney declined to pursue prosecution. The parties
continue to be involved in civil disputes in state court.
Wilmot says he was injured by the loss of the use of the vehicle.
Radzinski says she suffered humiliation, emotional distress, and physical
hardship because of the arrest.
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 2 of 26

3

There are other facts in the complaint that have not been stipulated or
agreed. Copies of a state court amended counterclaim against Yeti and an
amended third-party complaint are also attached to the complaint here.
2

The attachments are incorporated by reference in the complaint. To the
extent that those attachments include facts alleged against Defendant, for the
purpose of the motion to dismiss any such additional facts are taken as true.
The complaint and its attachments, however, also contain allegations that are
speculative, ultimate conclusions of fact, or conclusions of law.
Many of the allegations describe actions of members of the Oneida
County Sheriff’s Department. Plaintiffs do not repeat the allegations in those
pleadings in the complaint. Instead, they simply incorporate them by reference.
Taken as true for the motion, there are facts in those attachments to the
complaint that bear on a decision.
Wilmot purchased the vehicle for use by his son in a snowplowing
business. He says no substantial issues were disclosed with the vehicle. But,
he says, the vehicle had defects when he picked it up.

2
The Plaintiffs had been sued by Yeti in Circuit Court. Plaintiffs counterclaimed
alleging unfair debt collection practices, failure to disclose facts regarding the vehicle,
and criminal malicious prosecution by Yeti. The counterclaim does not assert any
claims against Defendant.
The Plaintiffs filed the third-party action against the Defendant and Cambrya
Hurlburt, Samuel Hurlburt, the Oneida County Sheriff, three deputies, and Oneida
County. The third-party complaint asserted claims of malicious prosecution against
Defendant and the Hurlburts. The remaining counts are claims under 42 U.S.C.
§ 1983 against the Sheriff, deputies, and County, and a count against one deputy for
an additional claim of violation of Wis. Stat. § 968.255.
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 3 of 26

4

After leaving the lot in the vehicle, Wilmot noted a cracked windshield,
nonoperating blinkers, and engine issues. Wilmot then pulled to the side of the
road. He told Radzinski the defects were not disclosed and were significant. At
the same time, he looked at the paperwork for the truck. He noticed the defects
were listed. Wilmot told Radzinski the paperwork had been changed to list the
problems and defects.
A Yeti employee and the Defendant began communicating with Radzinski
regarding the check and payment. When Yeti asked when payment would be
made, Radzinski said her purse had been stolen. She also said she would be in
with a replacement.
Defendant emailed Radzinski stating, “. . . I hope we can keep this
between us and I don’t want to contact the authorities or anything, but we
need the down payment.” Radzinski then went to Yeti.
Although not the owner of the truck, Radzinski says she offered to bring
the truck back. Defendant, apparently on behalf of Yeti, declined the offer
noting the truck was in the name of Wilmot. Radzinski also took $500 to Yeti
offering it to settle the down payment issue.
Radzinski refused to pay the balance of the down payment. Yeti filed a
small claims action against Plaintiffs. Plaintiffs contested the complaint.
Mediation was ordered.
Cambrya Hurlburt told her husband and Defendant that the stop
payment on the check and failure to pay for the truck may be criminal actions.
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 4 of 26

5

On the other hand, the Clerk of Small Claims had told Defendant it was a civil
matter.
Copies of the paperwork for the vehicle purchase together with copies of
Radzinski’s check and the stop payment were taken by Cambrya Hurlburt to
the Sheriff’s Office. This report to the Sheriff was made after she spoke to her
husband and Defendant.
Deputies spoke with Wilmot. They then impounded the vehicle, aware
there was a dispute between Plaintiffs and Yeti. No further action was taken by
the Sheriff’s Office with respect to Wilmot.
On learning of the impounding of the vehicle, Radzinski went to the
Sheriff’s Office. During her interview with Sheriff deputies, Radzinski confirmed
stopping payment on the check after she learned about the problems with the
vehicle. She admitted her statements about delay in payment because of a lost
purse and coming in later with a replacement were lies. She also told the
deputies she believed this was a civil dispute that should be addressed in civil
court.
The arresting officer prepared a probable cause statement and arrested
Radzinski. She was processed and placed in a holding cell for several hours.
She was eventually permitted by a judge to sign a cash bond and was released.
The district attorney then declined to prosecute.
JURISDICTION
This Court has jurisdiction over this proceeding and the issues before it
pursuant to 28 U.S.C. § 1334(b). This is a core proceeding under 28 U.S.C.
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 5 of 26

6

§§ 157(b)(2)(B) and 157(b)(2)(I). Venue is proper under 11 U.S.C. §§ 1408 and
1409. The Court may enter final judgment. 28 U.S.C. §§ 157(b)(1). All
bankruptcy cases and proceedings filed in the Western District of Wisconsin
have been referred to the bankruptcy judges. See Western District of Wisconsin
Administrative Order 161 (July 12, 1984); 28 U.S.C. § 157(b)(1).
DISCUSSION
I. Rule 12(b)(6) Standards
Rule 12(b)(6) of the Federal Rules of Civil Procedure, made applicable by
Bankruptcy Rule 7012(b), provides that a defendant may move to dismiss the
complaint for failure to state a claim upon which relief can be granted. There
are two hurdles to clear to survive the motion. EEOC v. Concentra Health
Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007).
First, the complaint must describe the claim in enough detail to give the
defendant fair notice of its nature. Cornielsen v. Infinium Capital Mgmt., LLC,
916 F.3d 589, 598 (7th Cir. 2019). “[A] formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007).
The Court considers well-pleaded facts and the reasonable inferences
drawn from them in the light most favorable to the plaintiff. See Reger Dev.,
LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010). Every allegation that
is well-pleaded by a plaintiff is taken as true in ruling on the motion. See
Berger v. NCAA, 843 F.3d 285, 289-90 (7th Cir. 2016).
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 6 of 26

7

Second, the claim must be “plausible on its face,” Twombly, 550 U.S. at
570, meaning the plaintiff’s right to relief must rise above a “speculative level.”
Twombly, 550 U.S. at 555; see also Cornielsen, 916 F.3d at 598. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Lewis v. City of
Chi., 914 F.3d 472, 475 (7th Cir. 2019).
Plaintiff must articulate facts that, when accepted as true, state a claim
upon which relief can be granted, and a plaintiff cannot rely upon “labels and
conclusions . . . [or] a formulaic recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555.
II. Motion to Dismiss and Section 523(a)(6)
Section 523(a)(6) bars debtors from discharging debts for “willful and
malicious injury” by a debtor. To show willful and malicious injury by a debtor
to another person or property of another under 11 U.S.C. § 523(a)(6), plaintiffs
must show: (i) defendant caused an injury, and that (ii) defendant acted
willfully, and (iii) maliciously. In re Calvert, 913 F.3d 697, 700 (7th Cir. 2019)
(quoting First Weber Grp., Inc. v. Horsfall, 738 F.3d 767, 774 (7th Cir. 2013));
see also In re Thirtyacre, 36 F.3d 697, 700 (7th Cir. 1994); and Silver-Hacker v.
Allen (In re Allen), 653 B.R. 895, 902 (Bankr. N.D. Ill. 2023).
None of these terms are defined by the Bankruptcy Code, but precedent
guides their application. “The term ‘injury’” the Seventh Circuit has instructed,
“mean[s] a ‘violation of another's legal right, for which the law provides a
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 7 of 26

8

remedy.’” First Weber, 738 F.3d at 774 (quoting Weinstein & Assocs., Ltd. v.
Lymberopoulos (In re Lymberopoulos), 453 B.R. 340, 343 (Bankr. N.D. Ill.
2011)). The section essentially “excepts debts resulting from intentional torts.”
Groom v. Krook (In re Krook), 615 B.R. 479, 487 (Bankr. N.D. Ill. 2020).
For Plaintiffs’ claims for relief under section 523(a)(6) to survive a motion
to dismiss, they must plausibly allege that the Defendant acted with the actual
intent to cause injury, not just an intent to act which then led to an injury. See
Kawaauhau v. Geiger, 523 U.S. 57, 61-64 (1998). As our Circuit later
explained, “a willful and malicious injury, precluding discharge in bankruptcy
of the debt created by the injury, is one that the injurer inflicted knowing he
had no legal justification and either desiring to inflict the injury or knowing it
was highly likely to result from his act.” Jendusa-Nicolai v. Larsen, 677 F.3d
320, 324 (7th Cir. 2012).
A. Injuries to Plaintiffs
The injuries that are identified in the complaint are different for each
Plaintiff. While the complaint itself does not separate the injuries, there are
clear distinctions.
1. Injuries to Wilmot
Wilmot says his truck was seized. He then went to the Sheriff’s Office
and was interviewed. He was released after the interview without any charges,
but his truck was not returned. So, he lost possession and use of the vehicle.
Loss of the use of the vehicle and incidental and consequential damages
together with other unspecified pecuniary loss are the injuries identified.
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 8 of 26

9

He also argues that making a report to the Sheriff’s Department violated
the Wisconsin Consumer Act (WCA). While Wilmot purchased a vehicle from
Yeti, there is no assertion that he fulfilled the terms of the purchase agreement.
There is, of course, the dispute about the condition of the vehicle, but that has
yet to be resolved.
The focus on the WCA is, however, misplaced. It is undisputed the
vehicle was purchased for a business purpose. Wilmot was not a consumer or
customer under the WCA. It was not purchased for personal, family, or
household purposes. Wis. Stat. § 421.301(17).
Additionally, as discussed below, even if the WCA were to apply, it simply
prohibits conduct done with knowledge or reason to believe that no right to
such conduct exists.
Two non-attorneys provided opinions to Merkel about the nature of the
dispute. The Clerk of Court said there was a civil dispute. That is true and
evidenced by the collection action that was filed. Cambrya Hurlburt said it may
be a crime. Merkel is not an attorney. He and Yeti provided copies of the
documents to her and she took them to the Sheriff’s Department. If there is the
possibility that actions could constitute a crime, contacting law enforcement is
a reasonable action, particularly when faced with competing views.
Even so, the complaint does state an injury to Wilmot. So the
requirement that an injury be identified is satisfied for him.
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 9 of 26

10

2. Injuries to Radzinski
Radzinski went to the Sheriff’s Department after learning that Wilmot’s
truck had been impounded by deputies. The injuries she describes followed an
interview she had with members of the Sheriff’s Department. The injuries are
emotional distress, humiliation, physical hardship related to missed
medication and custodial conditions, out-of-pocket costs (bond and attorney’s
fees), and other special and general damages.
She was arrested and placed in jail. Ultimately, she posted a bond to
obtain release. The injuries described in the complaint for Radzinski are the
type of injuries that would be typical of injuries sustained in claims for tort
liability.
Radzinski does not have any claims under the WCA. She was not a party
to the purchase agreement, so any argument about the WCA is inapplicable to
her. She did not enter into any consumer credit transaction. Wis. Stat.
§ 421.301(10). Radzinski was not a party to the vehicle purchase and didn’t
seek to obtain it on credit.
But for the purpose of the motion, the facts are sufficient to satisfy the
requirement of an injury to Radzinski.
III. The Complaint Fails to Plead the Injuries Were Willful or Malicious.

Injury alone is not sufficient. To meet the standard for willfulness, the
Plaintiffs must show “a deliberate or intentional injury, not merely a deliberate
or intentional act that leads to injury.” Kawaauhau, 523 U.S. at 61 (emphasis
omitted); First Weber, 738 F.3d at 774 (quoting Kawaauhau, 523 U.S. at 61).
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 10 of 26

11

In this Circuit, willfulness is judged objectively and requires that a
debtor intend injury or that the act was substantially certain to result in
injury. This is separate and distinct from “malicious.” The court of appeals has
more recently affirmed the First Weber standard, again using the disjunctive,
stating that malicious means that the debtor “acted ‘in conscious disregard of
[his] duties or without just cause or excuse.’” In re Calvert, 913 F.3d at 701;
First Weber, 738 F.3d at 774 (quoting Thirtyacre, 36 F.3d at 700).
“Actual malice” means “[t]he deliberate intent to commit an injury, as
evidenced by external circumstances.” B
LACK’S LAW DICTIONARY 1146 (11th ed.
2019). Maliciousness in the context of section 523 generally encompasses
“implied or constructive malice as well as actual malice.” Littlefield v. McGuffey
(In re McGuffey), 145 B.R. 582, 586 (Bankr. N.D. Ill. 1992). Implied malice may
be shown “by the acts and conduct of the debtor in the context of [the]
surrounding circumstances.” Navistar Fin. Corp. v. Stelluti (In re Stelluti), 94
F.3d 84, 88 (2d Cir. 1996) (internal quotations omitted); see also Lee v. Ikner (In
re Ikner), 883 F.2d 986, 991 (11th Cir. 1989) (“Constructive or implied malice
can be found if the nature of the act itself implies a sufficient degree of
malice.”).
So, the Defendant’s actions must be both willful and malicious. This
requires proof of two distinct elements—that the injury was both “willful” and
“malicious.” The act must be intentional, and an intended harm must be
shown. An act leading to harm alone is not sufficient without intent. In other
words, there must be facts showing that the Defendant wanted to cause the
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 11 of 26

12

consequences of the act or believe that those consequences were substantially
certain to result from it. See R
ESTATEMENT (SECOND) OF TORTS § 8A (1965).
The consequences of the police report were different with regard to each
Plaintiff. For Wilmot, his truck was impounded and he lost use of it. Radzinski,
on the other hand, was arrested, booked, held in jail, and missed medication.
Judged objectively, the Court must consider whether the complaint
contains facts that demonstrate Defendant intended injury or that the act was
substantially certain to result in injury to each Plaintiff.
A. Maliciousness
Plaintiffs primarily argue that Defendant’s conduct was malicious
because of an action taken without just cause or excuse or based on a
knowingly wrongful act. The act was providing documents to Cambrya
Hurlburt that were then taken to the Sheriff’s Office.
1. The State Law Cases Do Not Support a Claim of Malicious Injury.
Plaintiffs first draw parallels to bankruptcy and state court decisions
involving nondischargeability under section 523(a)(6) and tortious conduct.
Then, they point to the arrest of Radzinski and the seizure of Wilmot’s truck.
The Plaintiffs assume there was no basis for possible criminal conduct.
They postulate Merkel understood there was no possible basis for a police
report. Further, because Cambrya had worked for the Sheriff’s Department,
they assume law enforcement exercised no independent judgment in the
actions taken with respect to Plaintiffs.
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 12 of 26

13

While legal duties may depend on nonbankruptcy law, First Weber
instructs that whether Merkel consciously disregarded those duties or acted
without just cause or excuse—that is, with malice—are matters governed by
federal law.
Plaintiffs rest the claim that each suffered a malicious injury on the state
law elements of malicious prosecution. But the issue of nondischargeability is
“a matter of federal law governed by the terms of the Bankruptcy Code.”
While citing two federal cases, the Plaintiffs merely pay lip service to the
application of the Code to the requirements for stating a claim under section
523(a)(6). They do so with a passing reference to First Weber and Horton.
3

First Weber is cited for the proposition that a violation of rights may be
an injury for which there is a remedy. In the same manner, Horton is identified
for the proposition that violation of the WCA may show both a legal right and
injury.
But Horton is not a case under the WCA. It simply was a claim under 11
U.S.C. § 523(a)(6) for a willful and malicious injury. There was no discussion of
the facts or application to this case. There was no injury in the Horton case
because self-defense under Wisconsin law meant the plaintiff could not show
an injury.

3
First Weber Grp., Inc. v. Horsfall, 738 F.3d 767, 774 (7th Cir. 2013); Horton v. O'Keefe
(In re O'Keefe), No. 23-02072-gmh, 2025 Bankr. LEXIS 509, at *12 (Bankr. E.D. Wis.
Mar. 4, 2025).

Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 13 of 26

14

In support of the argument there are claims for malicious injury,
Plaintiffs rely almost exclusively on state law cases that were brought for
malicious prosecution. All those cases are distinguishable on their facts.
There is a common thread in each case that is not present here. In each
case an individual provided information to law enforcement that was either
false, deceptive, contained material omissions, or was not based on any
personal knowledge.
None of the state law cases cited by Plaintiffs contain similar or
analogous fact patterns. The cases involved:
 A criminal prosecution based on statements from a railroad
detective who did not know the facts. Even so, the facts given him
were found to create probable cause in the mind of the
prosecutor.
4

 A bank manager, seeking to collect money owed, reported larceny
knowing the report and facts were untrue.
5

 Complaint about a post-dated NSF check led to a criminal
complaint and arrest. The charge was later dismissed after the
authorities discovered the check was post-dated. The decision
focused on jury instructions to be given for a claim of malicious
prosecution.
6

 An order to show cause as to whether the plaintiff should be found
in contempt in a visitation dispute. The attorney prepared and
submitted a bench warrant. The judge signed it. The complaint
failed to state a claim because there was no allegation the bench
warrant was improperly issued or that the legality of the bench
warrant was ever legally challenged.
7

4
Elmer v. Chi. & N. W. Ry. Co., 257 Wis. 228, 247, 43 N.W.2d 244 (1950).
5
Lechner v. Ebenreiter, 235 Wis. 244, 292 N.W. 913, 916-19 (Wis. 1940).
6
Peters v. Hall, 263 Wis. 450, 57 N.W.2d 723 (Wis. 1953).
7
Strid v. Converse, 111 Wis. 2d 418, 421, 331 N.W.2d 350 (Wis. 1983).
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 14 of 26

15

Those cases do not support a claim of malicious injury here. The
information given to the Sheriff’s Office in this case was not false.
Having been told that the stop payment might be a crime of theft,
documents relevant to the transaction were taken to law enforcement. The
purchase contract, check, and stop payment proof are true and correct copies
and undisputed. Nothing about those items was false.
Here, there was an arrest, a bench warrant and termination of the
warrant. The facts presented to the Sheriff’s Office were considered by a judge.
The judge signed the warrant and Radzinski was released. The district attorney
declined prosecution of Radzinski.
Unlike the cases cited by Plaintiffs, there was never a criminal
prosecution of Wilmot. Thus, the claim that criminal proceedings were
malicious prosecutions of him cannot be sustained. No such proceedings
existed or were terminated in his favor.
Merkel received information that the transactions with Plaintiffs were
civil matters. He was also told they may be criminal. The sources of those
comments were not attorneys.
Plaintiffs do not plead any facts that explain why Merkel knew or should
have known that there was no possible crime. Instead, they simply say the
district attorney declined prosecution. And so, they assume that means there
was termination of criminal proceedings in favor of Radzinski.
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 15 of 26

16

District attorneys have prosecutorial discretion. Declining to prosecute
does not mean a crime did not occur. It only means the office decided not to
move forward with a criminal case at that time.
It is possible that an act can lead to both criminal charges and civil
claims. Simply because Yeti held a claim against the Plaintiffs that could be
brought in civil court does not exclude the possibility that the same facts could
give rise to a criminal complaint.
The Sheriff’s Office received information that was true in this case. It
interviewed both Wilmot and Radzinski and then proceeded with an arrest of
Radzinski. It was the Sheriff’s Department and not Merkel that initiated any
criminal proceeding. Pollock v. Vilter Mfg. Corp., 23 Wis. 2d 29, 38, 126 N.W.2d
602 (1964).
Plaintiffs conclude, incorrectly, that the mere assertion of a claim of
malicious prosecution under Wisconsin law must be sufficient to state a claim
that is malicious for the purposes of section 523(a)(6). It is federal law that
controls.
2. Wilmot’s Injuries Were Not Malicious.
Loss of use of the vehicle is a plausible claim that an injury exists. But
the injury must have been “a deliberate or intentional injury, not merely a
deliberate or intentional act that leads to injury.” Kawaauhau, 523 U.S. at 61.
Filing a police report or authorizing such a report to be filed by Cambrya
Hurlburt was an intentional or knowing act. But there are no facts presented
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 16 of 26

17

by Plaintiffs that filing such a report demonstrates that Defendant intended
injury or that the report was substantially certain to result in injury to Wilmot.
Wilmot purchased a vehicle. According to Wilmot, there were damages or
defects to the vehicle according to him that had not been disclosed. The
damages were, however, identified on the purchase documents he took with
him from Yeti at the time of delivery of the vehicle. At least one defect should
have been obvious—a crack in the windshield.
He agreed to pay a down payment of $3,000 for the vehicle. That was
paid in the form of a check from Radzinski. Shortly after leaving Yeti, Wilmot
pulled over and told Radzinski there were undisclosed problems and that the
vehicle was not sold as represented.
Radzinski stopped payment on her check. She refused to make the down
payment. Wilmot was aware the down payment had been stopped. There is no
allegation that Wilmot—the truck purchaser—tried to make any payment.
Thus arose the dispute about payment for the purchase of the vehicle.
One method of resolving that dispute would be a state court action. It could, for
example, be a suit for payment or a replevin or both. A state court action was
filed.
Taking possession of and title to a vehicle without making the agreed
down payment and not immediately addressing the issues promptly after the
issues were discovered is a civil matter. While it might raise the possibility of a
crime under Wis. Stat. §§ 895.446 or 943.20, the report to the Sheriff’s Office
did not state or specify what specific laws might be at issue.
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 17 of 26

18

Instead, Merkel shared the documents about the purchase contract and
down payment made and then stopped by Radzinski. Cambrya Hurlburt gave
those to the Sheriff’s Office.
No facts have been alleged that Merkel knew or should have known that
reporting what became a stop payment on a check would result in the vehicle
being seized.
The complaint just contains conclusory statements that the results of
reporting the purchase contract, down payment check and the stop payment
led to malicious injuries to Wilmot. Other than innuendo, it is based on the
suggestion that because Cambrya had worked at the department in the past
and was acquainted with the Sheriff’s Department, she induced the Sheriff to
seize the truck. And there is the supposition that she, her husband, and
Merkel colluded and conspired to that result.
Plaintiffs allege no facts to show that Defendant knew a police report
would result in an impound of the vehicle. Plaintiffs simply present the
conclusion that the parties worked in concert to conclude that some undue
influence was imposed on decisions by the Sheriff’s Department. They posit
without any presentation of fact that there was no independent judgment
exercised by law enforcement and that it was a predetermined outcome that
was or could be expected by Merkel.
It is law enforcement who takes and evaluates a report. The law
enforcement agency decides whether to make an arrest and to seek a probable
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 18 of 26

19

cause determination. It is then the prosecutor who makes a decision on
whether to proceed with charges.
While filing a report with the Sheriff may have affected the positions of
Plaintiffs and Defendant in their dispute about payment, there are no facts
alleged that support an objective finding that impounding the vehicle was
intended or could reasonably have been the substantially likely result from
filing the police report.
The complaint fails to satisfy the requirement of facts sufficient to state
that Defendant’s actions were the cause of malicious injury to Wilmot.
3. Radzinski’s Injuries Were Not Malicious.
The report to the Sheriff’s Office included facts directly related to the
actions of Radzinski. On Friday, October 21, 2022, she wrote a check for
Wilmot’s benefit to Yeti. It was the down payment for the truck he was picking
up. Two days later she stopped payment on that check.
Radzinski and Wilmot were sued to collect payment on that check. While
that was a civil collection matter, it also may have been in Defendant’s mind a
criminal matter. Defendant did text Radzinski seeking to get the down payment
and stating his hope that could occur without contact with the authorities.
Payment did not result.
Having been told both that this was a civil matter and that it may be a
crime, Defendant gave the transaction documents to Cambrya Hurlburt. She
took them to the authorities.
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 19 of 26

20

No facts are pled to support the claim that Defendant knew making a
report of something that might be a crime would result in an arrest or
prosecution. Defendant is not a lawyer. Possible crimes are often reported. That
does not mean law enforcement concludes there is a crime or that there is an
arrest. Further, a district attorney may decline prosecution for a variety of
reasons.
Radzinski assumes that because a civil matter was pending it was
improper to provide information to the Sheriff’s Office for consideration. She
ignores the fact that both she and Wilmot were interviewed by deputies. She
complains that Defendant did not tell the Sheriff’s Deputy this was a civil
matter already in small claims court. But she did tell the deputy those facts
before any decision was made by him to arrest her. It was the deputies who,
after interviewing her, decided to make an arrest and bring the matter before a
judge for a probable cause decision and bail.
No facts are contained in the complaint that Defendant knew or should
have known that an arrest would follow a report. And even if there were an
arrest, there are no facts or evidence there was a deliberate intent to cause
injury. The facts do support a claim that Merkel intended to make a report to
authorities who might reach a conclusion there could be a crime. If so, the
matter might go before a judge and to a prosecutor.
Radzinski says that initially when she was arrested, she was told by the
deputy she would be booked and then released. Later she says another deputy
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 20 of 26

21

called the Sheriff and she was put in jail. Neither of these facts supports a
conclusion that Merkel intended the injuries she says she sustained.
A judge reviewed the basic facts. He determined there was probable
cause but granted release on a signature bond. The district attorney declined
prosecution. That does not mean there were charges decided in Radzinski’s
favor.
Being arrested, searched, placed in jail, and not having access to
medication for a period are plausible claims that injury exists. But the injury
must have been “a deliberate or intentional injury, not merely a deliberate or
intentional act that leads to injury.” Kawaauhau, 523 U.S. at 61.
The act at issue is providing documents that were given to the Sheriff’s
Office as a report of a possible crime. Goods were received by Wilmot in
exchange for a down payment provided by Radzinski and a written purchase
agreement. That down payment allowed him to take possession of the vehicle
and to receive the title to the vehicle. And there are no facts alleged to support
an objective finding that simply making a report to law enforcement of
undisputed facts about a stop payment on a check would result in an arrest
and detention unless and until law enforcement concluded there was probable
cause that a crime may have been committed. And even if facts indicate the
existence of a potential criminal act, a district attorney may decline prosecution
for a variety of reasons.
Assuming there were sufficient funds at the time the check was written,
Radzinski took steps within two days of writing the check to stop payment.
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 21 of 26

22

That stop payment order was issued on a Sunday. By doing so, she
demonstrated an intent that the check not be paid. She also continued the
deception she intended to replace the payment by lying about losing her purse,
needing to protect her account, and promising to bring in a replacement check.
The delivery of the down payment permitted Wilmot to take possession of
the vehicle and obtain the title. Whether these acts could have been viewed as
a possible violation of Wisconsin law is a question that typically would be made
by law enforcement and then a prosecutor. Making a report of the facts does
not lead to the conclusion there is no just cause or excuse for making a police
report. Neither is making a report under those circumstances knowingly
wrongful.
The complaint fails to satisfy the requirement of facts sufficient to state
that Defendant’s actions were the cause of malicious injury to Radzinski.
B. Plaintiffs’ Injuries Were Not Willful.
Radzinski wrote a check for $3,000 that enabled Wilmot to take the
vehicle and title. Two days later, Radzinski stopped payment on the check.
Radzinski gave a series of excuses for stopping payment, including that her
purse had been stolen. Those statements were not true.
Wilmot kept the vehicle. Neither he nor Radzinski replaced the missing
down payment.
Yeti commenced an action against Plaintiffs. It was contested and
ordered to mediation. Merkel was told by someone at the Clerk of Court’s Office
it was civil matter. He was also told it may be a crime.
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 22 of 26

23

Wilmot and Radzinski were each interviewed by a deputy. The truck was
impounded after Wilmot’s interview. No further action was taken against him.
Radzinski voluntarily went to the station to be interviewed. A member of
the Sheriff’s Department made a decision to arrest and charge her with a
crime.
Defendant was aware Cambrya Hurlburt was going to speak to the
Sheriff’s Office and file a report. But the requirement for nondischargeability
includes the essential element that there must be a willful injury.
“The word ‘willful’ in [§ 523](a)(6) modifies the word ‘injury,’ indicating
that nondischargeability takes a deliberate or intentional injury, not merely a
deliberate or intentional act that leads to injury.” Kawaauhau, 523 U.S. at 61.
Put another way, section 523(a)(6) covers “only acts done with the actual intent
to cause injury,” not “acts, done intentionally, that cause injury.” Id., 523 U.S.
at 61 (footnote omitted).
There is no allegation Defendant intended either that the vehicle be
impounded or that Radzinski be arrested and jailed. Plaintiffs say the reason
for making the police report was to gain leverage in the civil court case. Gaining
advantage or leverage is, according to Plaintiffs, evidence of intended harm.
This assumption is conclusory and not a statement of fact.
It is claimed that the relationship among the Sheriff, a deputy, and
Cambrya Hurlburt somehow unduly influenced the seizure of the truck and the
arrest and detention of Radzinski. That is harm according to Plaintiffs.
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 23 of 26

24

But there is no factual assertion in the complaint that Defendant
intended Radzinski would be arrested and placed in jail. No facts were stated
that the other actions that occurred during her arrest and confinement were
intended or deliberate. And there are no facts presented that Merkel intended
that the vehicle be impounded.
While there are conclusory assertions that the conduct was that of
Defendant and was intentional, those are not objective facts. In conclusory
fashion, Plaintiffs say Defendant and others:
• “caused law enforcement to seize Wilmot’s vehicle”
• “orchestrat[ed] ... a criminal complaint”
• “...Merkel [was] actively involved in improperly and maliciously
instituting the criminal proceedings against Ms. Radzinski”

• “criminal proceedings were terminated in favor of Ms. Radzinski
when the District Attorney’s Office declined prosecution.”

To the contrary, setting aside the speculation and innuendo in the
complaint regarding “orchestrating” a criminal complaint and threatening use
of the authorities, it was members of the Sheriff’s Department that seized the
vehicle, arrested Radzinski, and referred the matter to the district attorney.
Wilmot complains that impounding his truck violated various consumer
protection laws. This would require that the purchase qualifies as a consumer
transaction.
To be covered by consumer protection laws, the transaction has to be
with a “Customer.” Neither Plaintiff was a customer. That requires a “person
. . . who seeks . . . personal property . . . for personal, family, or household
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 24 of 26

25

purposes.” Wis. Stat. § 421.301(17). The purpose of the purchase here was a
vehicle for use in a snowplowing business. There was not a consumer
transaction. It was the purchase of a vehicle for use in a business. Thus, the
WCA doesn’t apply.
A judge made a probable cause determination for theft in a business
setting under Wis. Stat. § 943.20(1)(b). The judge set bail and ordered
Radzinski’s release. Subsequently, the district attorney declined prosecution.
This is not termination of a criminal proceeding in favor of the Plaintiff.
The complaint says the district attorney declined to prosecute the case. On that
basis there was no regular judicial proceeding that would have resulted in a
determination in favor of the Plaintiff.
While a report to law enforcement is an intentional act, no facts are pled
to support the conclusion that the injuries complained of by Plaintiffs were
intended to occur. The complaint fails to allege facts to support the conclusion
that the report to the Sheriff’s Office was intended to cause injury.
The complaint fails to satisfy the requirement that there were willful
injuries to Plaintiffs based on the acts of Merkel.
CONCLUSION
Based on the above and the record and file, the Defendant’s Motion to
Dismiss Complaint for failure to state a claim under Fed. R. Bankr. P. 7012(b)
and Fed. R. Civ. P. 12(b)(6) is hereby granted.
This decision constitutes findings of fact and conclusions of law under
Bankruptcy Rule 7052 and Rule 52 of the Federal Rules of Civil Procedure.
Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 25 of 26

26

A separate order and judgment consistent with this decision will be
entered.
Dated: July 29, 2026
BY THE COURT:

______________________________
Hon. Catherine J. Furay
U.S. Bankruptcy Judge

Case 1-26-00013-cjf Doc 17 Filed 07/29/26 Entered 07/29/26 14:00:58 Desc Main
Document Page 26 of 26