COURT OF APPEALS DECISION DATED AND FILED December 10, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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Suzanne Lee,
Plaintiff-Appellant, v. James M. Emerson,
Defendant-Respondent. |
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APPEAL
from an order of the circuit court for
¶1 HIGGINBOTHAM, J.[1] Suzanne Lee appeals an order denying her
motions for a new trial and judgment notwithstanding the verdict after the
circuit court dismissed her small claims action. Lee argues that the court erroneously exercised
its discretion in denying her request to allow two witnesses to testify by
telephone. Assuming for the sake of
argument that the court’s denial of Lee’s request was a misuse of its
discretion, we affirm because Lee’s substantial rights were not affected by the
court’s erroneous exercise of its discretion.
Background
¶2 The
following facts are taken from the pleadings and trial testimony. Suzanne Lee, a resident of
¶3 Following
the relationship’s demise, Lee sued Emerson in small claims court in
¶4 The
case was heard and subsequently dismissed by a court commissioner, and Lee
requested a trial de novo before the circuit court. Nine days prior to trial, Lee notified the court
that she intended to call two witnesses living in
¶5 After
hearing testimony from Lee, Emerson and a witness for Emerson, the circuit
court dismissed the misrepresentation and breach of contract claims, concluding
that the purported agreements were not legally enforceable. The court also dismissed Lee’s assault and
battery claim upon a determination that Emerson was a more credible witness than
Lee. The court denied Lee’s motions for
a new trial and judgment not withstanding the verdict. Additional facts are provided as necessary.
discussion
¶6 Lee’s
sole argument on appeal is that the trial court erroneously exercised its
discretion in denying her request to allow the
¶7 “An
erroneous exercise of discretion in admitting or excluding evidence does not
necessarily lead to a new trial.” Martindale
v. Ripp, 2001 WI 113, ¶30, 246
¶8 As noted,
Lee’s notice regarding her intent to present testimony by telephone stated that
the Connecticut witnesses would testify about her “damages directly resulting
from the assault and battery.” Thus, the
witnesses’ testimony would have had no bearing on the misrepresentation and
breach of contract claims, and, with regard to the assault and battery claim,
would have related to damages only.
¶9 Lee’s
problem is that the trial court believed Emerson’s testimony about what
transpired in the North Carolina hotel room, and there is no reasonable
probability that the Connecticut witnesses’ testimony about damages would have
altered this important determination.
Lee testified that Emerson assaulted her; Emerson denied doing so. The trial court explicitly stated that it
believed Emerson’s testimony, and that it disbelieved Lee’s. Lee does not contend that this finding was
clearly erroneous. See State v. Ndina, 2009
WI 21, ¶45, 315
¶10 Because the
court rejected Lee’s claim that Emerson assaulted her, the
By the Court.—Order
affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(d) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Lee’s difficulty proving the alleged assault was compounded by the court’s refusal to hear testimony about her alleged injuries. This ruling followed Lee’s refusal to provide medical records to substantiate her alleged injuries. Lee does not challenge the court’s decision not to allow testimony about her injuries.