Lincoln Park MHC WI, LLC v. Patrick Glynn

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 17, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1718 Cir. Ct. No. 2019SC31772

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

LINCOLN PARK MHC WI, LLC,

PLAINTIFF-APPELLANT,

V.

PATRICK GLYNN,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
PEDRO COLON, Judge. Reversed and cause remanded with directions.

¶1 DONALD, J.1 Lincoln Park MHC WI, LLC, appeals an order of the
circuit court in which the circuit court dismissed Lincoln Park’s eviction action
against Patrick Glynn. Lincoln Park contends that the record does not support the

1
This appeal is decided by one judge pursuant to WIS. STAT. §752.31(2)(a) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP1718

circuit court’s application of the castle doctrine in rendering its decision. We
agree. Accordingly, we reverse the order and remand the matter for an evidentiary
hearing.

BACKGROUND

¶2 Lincoln Park owns and operates Lincoln Park Manufactured Home
Community (MHC) in West Allis.2 Patrick Glynn is a tenant of the MHC. On
June 13, 2019, Lincoln Park issued Glynn a “5-Day Notice to Terminate Tenancy
for Criminal Activity[.]” The notice claimed that on June 12, 2019, Glynn held an
employee at gunpoint while the employee was trying to perform maintenance on
the property. Glynn did not vacate the premises, prompting Lincoln Park to file an
eviction pursuant to WIS. STAT. § 704.17(3m)(b), which permits a landlord to file
an eviction notice if the tenant “engages in any criminal activity that threatens the
health or safety of the landlord or an agent or employee of the landlord[.]” See id.
Glynn contested the eviction and the matter proceeded to trial.

¶3 At trial, West Allis Police Officer Jonathan Cerqua testified that on
June 12, 2019, he responded to a phone call from Lincoln Park management,
informing police that “someone in one of the trailers pointed a shotgun at a
maintenance employee.” Cerqua stated that when he arrived at the MHC, he made
contact with Jason Stucco, a maintenance employee for the property. Cerqua
testified that Stucco explained that he was installing backflow preventers on the

2
The complaint names Lincoln Park MHC WI, LLC as the plaintiff and is signed by the
company’s manager. The appellant’s brief names Lincoln Park MHC WI, LLC as the owner of
the MHC. However, at trial, Daniel Joas, the regional manager of RHP Properties, testified that
RHP’s “portfolio” includes Lincoln Park. Therefore, it is unclear from the record which entity
actually owns the MHC. Because Lincoln Park MHC WI, LLC is the company named on the
complaint, we refer to that company as the owner of the MHC.

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outside exterior hoses of all of the MHC lots. Stucco told Cerqua that he was
required “by law” to install backflow preventers to prevent foreign substances
from contaminating the water supply. Cerqua testified that Stucco informed him
that when he reached lot number 625, Stucco noticed that the interior door and a
window were open. Stucco called out into the residence to identify himself and
began installing the backflow preventer on the property’s hose when he did not
receive a response. Stucco told Cerqua that while he was working, Glynn
emerged from the door next to the hose and pointed a double barreled shotgun at
Stucco while demanding to know what Stucco was doing. Stucco told Cerqua that
he explained himself and that Glynn was pointing a gun “directly at [Stucco’s]
head and then covering him with his body by going from his head to his body up
and down for approximately 45 [seconds].” Stucco told Cerqua that Glynn stated:
“next time let me know before I blow your fucking head off.”

¶4 Cerqua further testified that Stucco was wearing a maintenance
uniform. Stucco told Cerqua that he feared for his safety, but acknowledged that
Glynn did not have prior notice that maintenance work was being performed on
the property that day. Cerqua testified that Glynn was subsequently arrested and
the District Attorney’s Office indicated that it would charge Glynn with disorderly
conduct while armed, but that as of trial Cerqua did not see an electronic record of
the charges.

¶5 Daniel Joas, the regional manager for RHP Properties, the MCH’s
management company, testified that per City of West Allis orders, Stucco was on
the MHC lots on June 12, 2019, to install backflow preventers on the hoses outside
of the homes on the lot. Joas stated that shortly after the incident between Stucco
and Glynn, he was notified that police were on the premises. When Joas arrived at
the property, Stucco told him a story identical to that described by Cerqua’s

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testimony. Joas stated that RHP did not provide notice to MHC tenants about the
maintenance work. Joas also stated that following the incident, Glynn was given a
five-day notice of eviction, but that as of the day of the trial, Glynn still remained
a tenant. Neither Stucco nor Glynn testified.

¶6 The circuit court denied Lincoln Park’s eviction motion, stating:

The problem I have with this case, you know—you
know, really [on] both sides is that, one, there isn’t notice;
he’s going on the property, that is, it’s a minor intrusion;
it’s not even an intrusion; it’s required by the [C]ity of
West Allis. It is a requirement to be met. There isn’t
notice for it. And then there’s this disproportionate
response to it, which is a gun; and he is then threatened
with life for purposes of changing a hose stopper. Is that
reasonable? … I don’t think it’s reasonable to pull out the
gun and aim it at someone; but it is legal.

It’s legal to aim a gun at anyone you want. That’s
what the legislature has passed as law. That’s what the law
we live under. And I think in this case—[g]iven the facts, I
don’t think this rises to the level of criminal activity.

So I’m going to dismiss the action. I’m not going to
evict him. And this is based on the castle doctrine, which
allows a person to protect their home. There wasn’t a
notice regarding the entry.

This appeal follows.

DISCUSSION

¶7 Lincoln Park raises multiple arguments on appeal, but the crux of its
argument is that the circuit court incorrectly interpreted and applied Wisconsin’s
“castle doctrine.” Specifically, Lincoln Park contends that the record was

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insufficient for the court to make the findings necessary for the application of the
doctrine.3 We agree.

¶8 “Our review requires us to construe a statute and apply it to the facts
of the case.” Warehouse II, LLC v. DOT, 2006 WI 62, ¶4, 291 Wis. 2d 80, 715
N.W.2d 213. Ordinarily, a circuit court’s “[f]indings of fact shall not be set aside
unless clearly erroneous, and due regard shall be given to the opportunity of the
[circuit] court to judge the credibility of the witnesses.” WIS. STAT. § 805.17(2).
However, the application of a statute to the facts of a case is a question of law this
court reviews de novo, although the court benefits from the analysis of the circuit
court. See Warehouse II, 291 Wis. 2d 80, ¶4.

¶9 The castle doctrine, codified by WIS. STAT. § 939.48(1m), “generally
provides that use of force is presumably justified when a person is defending
himself ... against an unlawful and forcible intruder in that person’s home.” State
v. Chew, 2014 WI App 116, ¶1, 358 Wis. 2d 368, 856 N.W.2d 541. The statute
states:

(ar) If an actor intentionally used force that was
intended or likely to cause death or great bodily harm, the
court may not consider whether the actor had an
opportunity to flee or retreat before he or she used force
and shall presume that the actor reasonably believed that
the force was necessary to prevent imminent death or great
bodily harm to himself or herself if the actor makes such a
claim under sub. (1) and either of the following applies:

3
Glynn contends that the record is insufficient because Lincoln Park failed to include a
police report discussed at trial and that we should affirm the circuit court because Lincoln Park
bore the responsibility of providing a complete record. Lincoln Park contends that the police
report—Glynn’s exhibit at trial—was not an officially marked exhibit at trial and was not relied
upon by the circuit court. In reviewing the transcript, it is clear that the circuit court did not rely
on the police report in rendering its decision. Rather, the court considered the testimony of the
two witnesses.

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No. 2019AP1718

1. The person against whom the force was used
was in the process of unlawfully and forcibly entering the
actor’s dwelling, motor vehicle, or place of business, the
actor was present in the dwelling, motor vehicle, or place of
business, and the actor knew or reasonably believed that an
unlawful and forcible entry was occurring.

2. The person against whom the force was used
was in the actor’s dwelling, motor vehicle, or place of
business after unlawfully and forcibly entering it, the actor
was present in the dwelling, motor vehicle, or place of
business, and the actor knew or reasonably believed that the
person had unlawfully and forcibly entered the dwelling,
motor vehicle, or place of business.

See WIS. STAT. § 939.48(1m)(ar)1.-2.

¶10 Lincoln Park argues that the circuit court erroneously applied the
castle doctrine to the facts of this case because the record does not support such a
finding. We note first, that neither party even raised the castle doctrine at trial.
The circuit court sua sponte raised the doctrine, which, as relevant here, applies
when an actor intentionally uses force that is intended or likely to cause death or
great bodily harm if the actor knew or reasonable believed that a person has
unlawfully or forcibly entered the actor’s dwelling. Accordingly, the castle
doctrine requires a finding of intent. Because Glynn did not testify and no other
evidence on the record addressed Glynn’s state of mind at the time of the incident,
there was no evidence suggesting that Glynn intended to cause death or great
bodily harm to Stucco. There was also no evidence suggesting that Glynn knew or
reasonably believed that Stucco unlawfully or forcibly entered the dwelling, and
no evidence suggesting that Stucco actually did so. Both of the witnesses who
testified about the incident discussed what they learned from Stucco. Neither
witness personally observed the incident, nor did either witness discuss any
interactions with Glynn relevant to the applicability of the castle doctrine.

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Accordingly, we agree with Lincoln Park that the record was insufficient for the
circuit court to make its findings based on the castle doctrine.

¶11 Glynn argues that WIS. STAT. § 939.48(1)—the self-defense
statute—is the appropriate statute for this court to consider. Glynn contends that
the circuit court’s mere use of the term “castle doctrine” does not undermine his
self-defense argument. Because the issue of self-defense was raised neither by the
parties, nor by the circuit court at trial, we decline to address this argument.

¶12 For the foregoing reasons, we reverse the order and remand for an
evidentiary hearing consistent with this opinion.

By the Court.—Order reversed and cause remanded with directions.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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