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Defendant can’t make hay with claims the trial court erred by excluding certain evidence and rejecting his proposed jury instructions

State v. Richard P. Selenske, 2013AP1403-CR, District 3, 11/5/13; court of appeals decision (1-judge; ineligible for publication); case activity

A dispute about a contract for the purchase of standing hay grew into a misdemeanor theft charge when Selenske, the farmer who owned the hay fields, would not let Kern, the farmer who purchased the hay, pick up the last of the bales. The bare-bones contract Selenske wrote didn’t include a completion date, but Kern complied with an oral request to cut and bale the hay in July. (¶¶2-3). Kern didn’t finish hauling all the bales away before August 12, though, at which point Selenske blocked him from taking any more. He claimed they had orally agreed the hay would be removed by July 15, and Kern’s failure to comply with that deadline meant the bales became his. (¶¶4-7).

To bolster his completion date claim, Selenske sought to introduce Kern’s hay cutting contract with the DNR as evidence of the “industry standard” for completion dates. (¶¶8, 15). He also asked for a jury instruction on certain civil law principles regarding the interpretation of contracts. (¶¶9-11). The circuit court held the DNR contract was irrelevant and that Selenske’s proposed instruction improperly incorporated civil law into the case. (¶19). The court of appeals affirms:

¶20      On appeal, Selenske ignores the circuit court’s reasoning and simply advances arguments concerning the importance of  the DNR contract and why his proposed instructions should have been given to the jury. He does not explain why the reasons given by the circuit court for excluding the evidence and refusing to give the proposed instructions are erroneous. See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (ignoring ground upon which circuit court ruled constitutes concession of the holding’s validity).

¶21      In any event, Selenske’s argument about the need for the jury to determine the contract’s completion date overlooks the written contract itself. “The interpretation of a written contract, including the determination of whether its terms are ambiguous, is a legal matter that we decide independently.” Town of Neenah Sanitary Dist. No. 2 v. City of Neenah, 2002 WI App 155, ¶9, 256 Wis. 2d 296, 647 N.W.2d 913. “[U]nambiguous contractual language must be enforced as it is written.” Id. Here, the written contract explicitly stated it was for the “2011 cutting.” Under this language, Kern was still within the terms of the contract on August 12, 2011. He had not breached the contract by failing to timely complete the contract. Because Kern did not breach the contract, Selenske’s arguments about his purported right to cancel and assume ownership of Kern’s bales fail.

The court also properly determined restitution. Selenske argued he was only responsible for restitution for thirty-seven bales, while Kern testified he lost all seventy bales. The circuit court accepted Kern’s testimony and it’s determination is supported by the record. (¶¶25-27).

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