COURT OF APPEALS

DECISION

DATED AND FILED

August 12, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See 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

2

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 
No. 2019AP2430-FT

3

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.
No. 2019AP2430-FT

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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 
No. 2019AP2430-FT

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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.
No. 2019AP2430-FT

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¶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 
No. 2019AP2430-FT

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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. 
No. 2019AP2430-FT

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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 
No. 2019AP2430-FT

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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.”).