COURT OF APPEALS DECISION DATED AND FILED June 22, 2010 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 III |
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The Phone Line, Inc.,
Plaintiff-Appellant, v. Ronald G. Van Handel,
Defendant-Respondent. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM. The Phone Line, Inc., appeals an
order denying its motion for remedial contempt, sanctions and monetary damages
against
Ronald Van Handel, arising from his alleged violation of an injunction imposed
to enforce a noncompete agreement. The
Phone Line also challenges the denial of its request for an extension of the
injunction term. We reject Phone Line’s
arguments and affirm the order.
Background
¶2 In April 1996, Van Handel, then a Phone Line employee, entered into a fifteen-month noncompete agreement. Van Handel left his employment with Phone Line on July 24, 2006, and in October 2006, Phone Line filed suit seeking to enjoin Van Handel from competing either directly or indirectly for Phone Line business. Phone Line also sought “a full accounting … for monies received and materials utilized where [Van Handel] did work on the side and billed directly while employed as a service technician for [Phone Line] and for the dollar amount plus interest that was charged.”
¶3 On January 11, 2007, the circuit court entered a default
order enjoining Van Handel “from competing with [Phone Line]’s business within
a 45 mile radius of the City of
Discussion
¶4 Phone Line contends the circuit court erroneously exercised
its discretion by concluding remedial sanctions were not available after the
injunction expired. As the court
recognized, “[a] continuing contempt is required for the imposition of a
remedial sanction because remedial sanctions are not designed to punish the
contemnor, vindicate the court’s authority, or benefit the public.” Christensen v. Sullivan, 2009 WI 87,
¶55, 320
¶5 Citing Frisch, Phone Line intimates Van
Handel’s contempt should be considered “continuing” despite the injunction’s
expiration because timing was an essential element of the injunction order. Frisch, however, is distinguishable
on its facts. There, in context of
postjudgment divorce proceedings, the court found a continuing contempt for
Ronald Henrichs’ failure to timely provide copies of his tax returns and income
information, as required under a 1995 order.
The order provided that Henrichs “by May 12th of every year commencing
in 1996 ... as long as [Henrich] has child support obligations ... produce his
completed and filed personal and corporate tax returns.” Frisch, 304
¶6 The Frisch court disagreed, holding that
Henrichs’ contempt was continuing because his production of documents came too
late to undo the problems he had created by failing to timely produce them, and
otherwise deprived his ex-wife of her ability to utilize traditional remedies
in the law.
¶7 Citing
While the [circuit] court may not modify or terminate the support order after the child reaches majority, the force of the order does not expire until the parent complies. A parent’s failure to pay child support after the child reaches majority is a continuing disobedience of a court order. The contempt is not past; it is ongoing.
¶8 Phone Line also argues the circuit court’s denial of its
motion for compensatory damages is contrary to language in the default order
indicating “damages shall be determined at a later date upon proof to the
court.” We are not persuaded. The default order noted that the request for
a money judgment was based on allegations contained in the complaint. As noted above, the complaint sought a full
accounting for monies received and materials utilized where Van Handel did
work on the side and billed directly while
employed as a service technician for Phone Line and for the dollar amount
plus interest that was charged. Phone
Line did not timely offer proof of those damages. Rather, it waited until the resultant
injunction expired to move for damages as a remedial sanction.[2] Because Phone Line failed to establish a
continuing contempt, the circuit court properly concluded that damages as a remedial
sanction were not available after the injunction expired. See
Christensen,
320
¶9 Finally, Phone Line argues the circuit court erred by failing
to grant an additional fifteen-month extension of the injunction. Whether to grant an injunction is left to the
circuit court’s discretion. Bubolz
v.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.