William H. Heaney v. Oshkosh Business Center III, LLC

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.
August 12, 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. 2019AP2430-FT Cir. Ct. No. 2019SC1190

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

WILLIAM H. HEANEY,

PLAINTIFF-APPELLANT,

V.

OSHKOSH BUSINESS CENTER III, LLC,

DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Winnebago
County: SCOTT C. WOLDT, Judge. Affirmed.

¶1 GUNDRUM, J.1 William Heaney appeals from a judgment
dismissing his small claims replevin action seeking the recovery of three oil

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. 2019AP2430-FT

portraits hanging in the lobby of the “Oshkosh Northwestern Building,” a building
owned by Oshkosh Business Center III, LLC. He asserts the circuit court erred in
refusing to admit as evidence at the trial authorizations signed by his cousin and
his cousin’s widow and erred in ultimately concluding he had not met his burden
of proof to establish ownership of the portraits. For the following reasons, we
affirm.

Background

¶2 The relevant evidence presented at trial is as follows.

¶3 Heaney testified that on April 23, 1998, the Oshkosh Northwestern
Company (Oshkosh Northwestern) sold most of its assets to Ogden Newspapers.
As part of the asset purchase agreement, three oil portraits hanging in the lobby of
the Oshkosh Northwestern Building were “[t]o be loaned to [Ogden Newspapers]
under separate agreement.” No such “separate agreement” was entered into.

¶4 Heaney further testified that at the time of the sale he owned fifty
percent of the shares of Oshkosh Northwestern, and two of his cousins, Susan
Honaker and Thomas Schwalm, each owned twenty-five percent. Neither
Heaney’s, Honaker’s, nor Schwalm’s names, however, are found in the asset
purchase agreement. On May 29, 1998, Oshkosh Northwestern filed articles of
dissolution with the Wisconsin Department of Financial Institutions.

¶5 After the sale to Ogden Newspapers, the Oshkosh Northwestern
Building was sold twice, first to the owners of the Appleton Post Crescent and
later to Gannett Satellite Information Network, LLC, prior to being sold to

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Oshkosh Business Center.2 Although Heaney was aware of these prior sales, he
did not contact anyone regarding the portraits until May 2017, after the sale to
Oshkosh Business Center.

¶6 After Heaney’s presentation of his case, the circuit court dismissed
the action upon Oshkosh Business Center’s motion, concluding that Heaney had
not met his burden of proof to show that he had been an owner of Oshkosh
Northwestern and thus is an owner of the portraits. Heaney appeals.

Discussion

¶7 Heaney contends the circuit court erred at trial when it (1) “refused
to admit” into evidence authorizations from Honaker and Schwalm’s widow,
Joanne Schwalm, indicating that they, along with Heaney, were the owners of
Oshkosh Northwestern and thus the portraits; and (2) granted Oshkosh’s motion to
dismiss after Heaney’s case-in-chief. We begin with the second point.

¶8 We will not upset a circuit court’s findings of fact unless they are
clearly erroneous. WIS. STAT. § 805.17(2); Farrell v. John Deere Co., 151
Wis. 2d 45, 62, 443 N.W.2d 50 (Ct. App. 1989). Additionally, when, as in the
case now before us, the court serves as the factfinder, “it is the ultimate arbiter of
the credibility of the witnesses and of the weight to be given to each witness’s
testimony.” Lessor v. Wangelin, 221 Wis. 2d 659, 665, 586 N.W.2d 1 (Ct. App.
1998).

2
Murray Wikol, who runs ProVisions, LLC, also testified at trial. His only relevant
testimony was that while ProVisions, LLC, originally entered into the purchase and sale
agreement for the Oshkosh Northwestern Building, the buyer of the property, as titled, was
Oshkosh Business Center III, LLC.

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¶9 The circuit court here ultimately found that Heaney had not met his
burden to show ownership of the portraits, specifically finding that “this plaintiff
has not proved that they are Oshkosh Northwestern Company or their assigned
after their dissolutionment.” Heaney faults the court for expressing that “there
should be dissolution paperwork that showed assets were disbursed.” The court
acknowledged that Heaney testified to the existence of such paperwork, but
Heaney faults the court for its concern that there was no “paperwork” showing
Heaney was an owner. Heaney claims that his testimony as to ownership, which
he further claims was “bolster[ed]” by the authorizations that the court did not
admit into evidence, was not refuted at trial by any other evidence. He therefore
insists the court erred by not accepting his testimony, and the authorizations, as
sufficient proof of his ownership.

¶10 We disagree with Heaney. To begin, as the circuit court noted,
Heaney bore the burden of proof. If Heaney presented insufficient proof on the
question of ownership, he did not meet his burden, and his claim of error by the
court fails.

¶11 Here, the trial was to the circuit court; therefore, the court sat as
factfinder. It observed Heaney’s testimony and found it unpersuasive as to
ownership. While the court did not specify whether it was not convinced by
Heaney’s testimony because it believed Heaney was being intentionally untruthful,
was perhaps remembering facts incorrectly, or for some other reason, in order to
prevail, Heaney needed to convince the court he was the lawful owner, and he
failed in this regard.

¶12 During his direct examination, Heaney referred to various
documents admitted into evidence, however, none of them provided direct support

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of his claim that he had been an owner of Oshkosh Northwestern and thus is an
owner of the portraits. When asked on cross-examination if he had “stock
certificates or anything to show” that he was “a shareholder of Oshkosh
Northwestern,” Heaney claimed such documentation existed “[i]n the files,” but
that he did not have such with him. While Heaney claimed he “loaned” the
paintings to Ogden “for an indefinite amount of time,” he admitted he had no
documentation showing such a “loan” either. Heaney first testified that he did not
“personally execute the Asset Purchase Agreement with Ogden” in 1998; he then
testified that he did “sign[] it”; and then when shown that document on the witness
stand, he acknowledged that the signature on the document was not his but that of
“the acting publisher, Michael Phelps.”3

¶13 Heaney indicated on direct examination that he had “a curator
examine [the paintings] with an eye towards actually removing them for [him]”;
yet, when asked on cross-examination for the curator’s name, he responded that he
“misplaced that information.” When asked if he had a report from the curator, he
responded that he “had a verbal report at the time.”

¶14 When asked on redirect as to whether there were any stock
certificates showing his ownership of Oshkosh Northwestern, Heaney testified that
“[t]hey’re buried somewhere in family papers,” but subsequently expressed that it
was “possible that those certificates were actually surrendered” as part of the
process of dissolving Oshkosh Northwestern.

3
On redirect, Heaney testified, without documentary support, that he and the other
shareholders had authorized Phelps to sign the asset purchase agreement.

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No. 2019AP2430-FT

¶15 Upon objection by Oshkosh Business Center, the circuit court
declined to “accept,” on hearsay grounds, Heaney’s offered exhibits nine and ten,
which were respectively labeled “Authorization & Assignment” and
“Authorization.” Heaney had testified that these documents were respectively
signed by Honaker and Honaker and Joanne, whom Heaney testified were each
twenty-five percent owners of Oshkosh Northwestern. These authorizations,
signed in February 2019, indicate that at the time of the April 23, 1998 sale of
Oshkosh Northwestern, Heaney owned fifty percent of the company and Honaker
and Schwalm each owned twenty-five percent, but that Schwalm had since died
and was survived by his widow, Joanne. The documents state that Honaker and
Joanne authorize Heaney to recover the portraits.

¶16 Following Heaney’s presentation of evidence, Oshkosh Business
Center moved for judgment as a matter of law, primarily on the basis that Heaney
failed to meet his burden of proof to show that he was an owner of the portraits.
The court expressed that there was “nothing” but Heaney’s testimony “that tells
me he has any title whatsoever or interest in Oshkosh Northwestern[]. There’s
nothing.” The court continued: “I agree that, according to Exhibit 2 [the April 23,
1998 Asset Purchase Agreement] the Oshkosh Northwestern Company … retained
ownership of these three paintings from The Ogden Company in the sale.” The
court further stated:

Then the issue comes down to whether or not there is
retention of that ownership right…. One is you need to
show that [Heaney] is Oshkosh Northwestern Company,
and I do understand that it’s been dissolved, but there
should be dissolution paperwork that showed assets were
disbursed between three individuals, … 50 percent to this
individual and 25 and 25 to the other two, none of which
we have. I agree it’s testified to, but we don’t have that
showing that ownership.… I don’t find that … the plaintiff
has met their burden of proof to show ownership of these
documents. I agree, once again, the Oshkosh Northwestern

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Company would have ownership according to that
agreement, but this person—this plaintiff has not proved
that they are Oshkosh Northwestern Company or their
assigned after their dissolutionment.

¶17 Heaney asserts the circuit court erred in declining to “accept” the
authorizations by his relatives. He claims this is so because WIS. STAT.
§ 799.209(2), related to small claims court actions, provides that in a small claims
court action, “[t]he court … shall admit all other evidence having reasonable
probative value, but may exclude irrelevant or repetitious evidence or arguments.”
As noted, the court did preclude admission of the authorizations, exhibits 9 and 10,
on the basis that they were hearsay.

¶18 We need not decide whether the circuit court erred in declining to
“accept” the authorizations themselves, because even if the court did err, the error
was harmless. This is so because Heaney testified, without objection, to the
substance of those documents. He agreed on direct examination that Exhibit 9 was
a notarized “authorization and assignment that was signed by Susan Schwalm
Honaker with respect to these paintings” and in it “she authorizes [Heaney] and
assigns to [Heaney] her current percentage so that [he] can recover these.”
Heaney further agreed that Exhibit 10 was an unnotarized “authorization from
both Susan and from Joanne Schwalm” that “authorized [Heaney] to recover these
on behalf of Joanne and Susan.” He further testified that he recognized both
Susan’s and Joanne’s signatures, he “didn’t create Exhibit 9 and 10 ... and falsify
their signatures,” and “as far as [he was] concerned, [he felt he was] the authorized
representative of [his] family to recover these paintings.” Accepting the actual
paper documents into evidence, saying largely the same thing that Heaney testified
to while looking at the papers, would have added little, if anything.

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¶19 Even though the court did not admit the exhibits, it seems clear it
considered their substance, as testified to by Heaney, that Heaney, Honaker, and
Joanne claimed to be the three partial owners of the portraits. In its ruling, the
court noted “there should be dissolution paperwork that showed assets were
disbursed between three individuals, … 50 percent to this individual and 25 and 25
to the other two, none of which we have.” The court added that: “I don’t find that
… the plaintiff has met their burden of proof to show ownership of these
documents…. [T]his plaintiff has not proved that they are Oshkosh Northwestern
Company or their assigned after their dissolutionment.” (Emphasis added.) Thus,
the court appeared to accept that the rejected exhibits were signed by Honaker and
Joanne who claimed, along with Heaney, to be partial owners of the portraits.
Even considering their support for Heaney’s position, the court was nonetheless
unconvinced that Heaney had established ownership.

¶20 While Heaney appears to believe he should have prevailed because
Oshkosh Business Center did not present testimony or other evidence to counter
his self-serving testimony that he was the owner of the portraits, he identifies no
law holding that the factfinder, here the circuit court, must accept a witness’s
testimony as true and correct simply because no other witness contradicts it, even
if the factfinder finds the testimony to be unconvincing. Heaney bore the burden
to establish ownership, and the court found his testimony unconvincing and
concluded he had not met his burden. As Heaney seemed confused, uncertain, and
inconsistent during various portions of his testimony and presented ample excuses
but no documentation from the April 1998 sale showing he was an owner of
Oshkosh Northwestern and thus the portraits, it was not unreasonable for the court
to find that Heaney had not met his burden to establish ownership. In short, the

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court did not clearly err in declining to embrace Heaney’s self-serving testimony
that he was an owner.4

By the Court.—Judgment affirmed.

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

4
Heaney raises additional issues in his appeal; however, because our holding that the
circuit court did not clearly err in finding that Heaney failed to establish ownership is dispositive,
we do not address those other issues. See State v. Davis, 2011 WI App 147, ¶15, 337 Wis. 2d
688, 808 N.W.2d 130 (We “need not address other issues when one is dispositive.”).

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