Petition for Writ of Certiorari — David Allen Olsen, Petitioner v. Kaylee Ann Francois

Office of the Clerk

Jimprsme CJmirt rrf pfeamsm

110 East Main Street, Suite 215

P.O. Box 1688

Madison, WI 53701-1688

Telephone (608) 266-1880

Facsimile (608) 267-0640

WebSite: www.wicourts.gov

December 10, 2019

To:

Hon. James M. Peterson

Circuit Court Judge

615 Stokke Pkwy.

Menomonie, WI 54751

Kaylee Ann Francois

David Allen Olsen

Katie Schalley

Clerk of Circuit Court

Dunn County Judicial Center

615 Stokke Parkway, Suite 1500

Menomonie, WI 54751

You are hereby notified that the Court has entered the following order:

No. 2018AP271

Francois v. Olsen L.C.# 2017CV316

A petition for review pursuant to Wis. Stat. § 808.10, and a "Motion for Supervisory

Assistance" having been filed on behalf of respondent-appellant-petitioner, David Allen Olsen,

pro se, and considered by this court;

IT IS ORDERED that the "Motion for Supervisory Assistance" is denied;

IT IS FURTHER ORDERED that the petition for review is denied, without costs.

Sheila T.Reiff

Clerk of Supreme Court

Append

<$3

COURT OF APPEALS

DECISION

DATED AND FILED

NOTICE

This opinion is subject to further editing. If

published, the official version will appear in

the bound volume of the Official Reports.

July 16, 2019

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.

Sheila T. Reiff

Clerk of Court of Appeals

2018AP271

Cir. Ct. No. 2017CV316

STATE OF WISCONSIN

IN COURT OF APPEALS

DISTRICT III

Appeal No.

Kaylee Ann Francois,

Petitioner-Respondent,

v.

David Allen Olsen,

Respondent-Appellant.

APPEAL from orders of the circuit court for Dunn County:

JAMES M. PETERSON, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in Wis. Stat. Rule 809.23(3).

Hi

PER CURIAM. David Olsen appeals a harassment injunction order

entered by default, in favor of Kaylee Francois. Olsen also appeals the order

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No. 2018AP271

denying his motion to reopen the default judgment. Olsen argues the circuit court

erroneously exercised its discretion in denying his motion to reopen and in

granting the injunction in the first instance. Additionally, Olsen asserts that the

statute governing harassment injunctions, WlS. STAT. § 813.125(4) (2017-18),1 is

unconstitutional. We reject Olsen’s arguments and affirm the orders.2

Background

112

On Tuesday, December 19, 2017, Francois petitioned the circuit

court for a temporary restraining order (TRO) and also moved for an injunction

hearing, alleging that Olsen, her former college professor, had engaged in

[

harassing conduct. On the same day the petition was filed, the circuit court issued

a TRO and notice that an injunction hearing had been scheduled for 9:00 a.m. on

the following Tuesday, December 26.

The notice included language warning

Olsen that his failure to appear could result in an injunction being issued. Notice

of both the TRO and the scheduled hearing were personally served on Olsen at

8:50 a.m. on Wednesday, December 20.

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise

noted.

2 Olsen moved this court for summary reversal of the circuit court’s orders based on

Francois’s failure to file a brief. By order dated September 12, 2018, this court acknowledged

that we have discretion to summarily reverse a circuit court order on appeal when a respondent

fails to brief an appeal under circumstances showing abandonment or bad faith. See State ex reL

Blackdeer v. Levis Twp., 176 Wis. 2d 252, 259-60, 500 N.W.2d 339 (Ct. App. 1993) (summary

reversal is an appropriate sanction for a respondent’s violation of briefing requirements).

Although the motion for summary reversal was denied at that time, our order directed the

clerk to submit the case to this court to determine whether the appeal could be decided based

solely upon Olsen’s brief and record. After review, we have concluded it is appropriate to decide

this matter without Francois’s brief. We will not summarily reverse on procedural grounds orders

that are otherwise correct on their merits. Moreover, although Francois did not file a dedicated

brief, she submitted correspondence in support of the injunction, thereby showing she has not

abandoned either her petition or her opposition to vacating the injunction order.

2

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No. 2018AP271

13

On Friday, December 22, 2017, Olsen called the clerk of circuit

courts’ office and left several voice messages stating he could not rent a car until

8:00 a.m. on the morning of the hearing, making it impossible for him to travel

from his Minnesota home and arrive at the Dunn County Courthouse by the

scheduled hearing time. The courthouse, however, was closed on December 22.

14

On December 26, after waiting almost twenty minutes, and in the

absence of a request for a continuance, the circuit court proceeded with the

injunction hearing.

Following Francois’s testimony, the court granted the

injunction for a period of four years. Olsen arrived after the hearing concluded

and, later that day, filed a motion to reopen. The motion to reopen was denied

following a hearing, and this appeal follows.

Discussion

15

First, Olsen suggests he did not receive adequate notice of the

injunction hearing because the courthouse was open for only thirty-one hours from

the time that he was served with notice until the scheduled proceeding, thus

depriving him of his right to a “meaningful hearing.”

Although not fully

developed, we will address whether Olsen received adequate notice of the hearing

pursuant to the statutes governing the computation of time. The meaning of a

statute and its application to undisputed facts are questions of law we review

de novo. Progressive Cas. Ins. Co. v. Bauer, 2007 WI App 122, ^[5, 301 Wis. 2d

491, 731 N.W.2d 378.

16

WISCONSIN Stat. § 801.15(4) provides, in relevant part: “A written

motion, other than one which may be heard ex parte, and notice of the hearing

thereof shall be served not later than 5 days before the time specified for the

3

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No. 2018AP271

hearing, unless a different period is fixed by statute or by order of the court.”

(Emphasis added.) The statute also provides:

Notwithstanding ss. 985.09 and 990.001 (4), in computing

any period of time prescribed or allowed by chs. 801 to

847, by any other statute governing actions and special

proceedings, or by order of court, the day of the act, event

or default from which the designated period of time begins

to run shall not be included. The last day of the period so

computed shall be included, unless it is a day the clerk of

courts office is closed. When the period of time prescribed

or allowed is less than 11 days, Saturdays, Sundays and

holidays shall be excluded in the computation.

WIS.STAT. § 801.15(l)(b).

17

In the present case, the circuit court ordered that service of the TRO

and notice of the injunction hearing “be made at least 48 hours prior to the

hearing.” Because Olsen was served on December 20, that day is excluded under

Wis. Stat. § 801.15(l)(b). However, we count December 21 and December 22,

notwithstanding the fact that the clerk of circuit courts’ office was closed on

December 22. Under the plain reading of the statute, December 22 is not excluded

from the computation because it is not the “last day of the period so computed”—

here, the last day of the period was the December 26 hearing date.

If the

legislature had intended to exclude all days on which the clerk’s office is closed, it

would have done so. Instead, it only excluded days the clerk’s office is closed if

those days fall on the last day of the period so computed. Olsen, therefore,

received notice of the hearing as required by statute.

18

Next, Olsen argues the circuit court erred by denying his motion to

reopen the default judgment, claiming he is entitled to relief under specified

subsections of WIS. STAT. § 806.07.

A circuit court has wide discretion in

determining whether to grant relief from a judgment under § 806.07. See Miller v.

4

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No. 2018AP271

Hanover Ins. Co., 2010 WI 75, 1|29, 326 Wis. 2d 640, 785 N.W.2d 493. We

review such a determination under the erroneous exercise of discretion standard.

Id. A court properly exercises its discretion if it examines the relevant facts,

applies a proper standard of law, and, using a demonstrated rational process,

reaches a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107

Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982). We will not reverse a discretionary

decision if the record shows that discretion was in fact exercised and we can

perceive a reasonable basis for the court’s decision. Miller, 326 Wis. 2d 640, ^30.

We generally look for reasons to sustain a circuit court’s discretionary

determination. Id. We also uphold a circuit court’s findings of fact unless they

are clearly erroneous. Wis. Stat. § 805.17(2).

H9

Olsen argues he is entitled to relief under Wis. Stat.

§ 806.07(l)(a) [involving mistake, inadvertence, surprise or excusable neglect];

(c) [involving fraud, misrepresentation or other misconduct of an adverse party];

and (h) [for any other reasons justifying relief from the operation of the judgment].

However, Olsen’s argument as to the application of § 806.07 is not fully

developed. At best, Olsen contends that his failure to appear at the hearing was

^ due to “excusable neglect.” See § 806.07(1 )(a).

^[10

Excusable neglect is “that neglect which might have been the act of

a reasonably prudent person under the same circumstances.” Mohns, Inc. v. TCF

Nat’l Bank, 2006 WI App 65, f9, 292 Wis. 2d 243, 714 N.W.2d 245 (citation

omitted). It is not synonymous with simple carelessness or inattentiveness. Id.

The burden of showing excusable neglect is on the party seeking relief from the

default judgment. See Hansher v. Kaishian, 79 Wis. 2d 374, 389, 255 N.W.2d

564 (1977). When determining whether a party seeking relief from a default

judgment has proven excusable neglect, “the circuit court should consider whether

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No. 2018AP271

the moving party has acted promptly to remedy the default judgment, whether the

default judgment imposes excessive damages, and whether vacatur of the

judgment is necessary to prevent a miscarriage of justice.” Mohns, 292 Wis. 2d

243, f 10. The circuit court, however, “must also consider that the law favors the

finality of judgments, and the reluctance to excuse neglect when too easy a

standard for the vacatur of default judgments would reduce deterrence to

litigation-delay.” Id.

Tfll

Even assuming the existence of excusable neglect, Olsen must also

provide a meritorious defense in order for the default judgment to be reopened.

See Hollingsworth v. American Fin. Corp., 86 Wis. 2d 172, 184, 271 N.W.2d 872

(1978). However, if there is no showing that the judgment was the product of

excusable neglect, the court need not reach whether there was a meritorious

defense. Id. at 184-85.

Tfl2

Although the circuit court did not specifically reference Wis. Stat.

§ 806.07(l)(a), it considered factors relevant under that statute in deciding the

motion. The court found that Olsen had two business days to properly contact the

court and request either to appear by telephone or to reschedule the hearing. Olsen

was served notice on the morning of December 20, yet he did not attempt to

contact the courthouse until December 22, by which time the clerk’s office was

closed. Further, Olsen’s voicemails to the court did not advise that Olsen sought

an adjournment, leaving the court to guess whether Olsen would appear for the

hearing. In fact, he was significantly delayed, arriving more than an hour after the

scheduled hearing. The court added that, in any event, Olsen needed permission to

delay the hearing—voicemails simply stating he could not make it on time were

insufficient and are “not how we operate the court.” Moreover, Olsen did not call

on the morning of the hearing to inform the court that he was on his way or to

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No. 2018AP271

otherwise participate by telephone. Although Olsen testified that he did not have a

working telephone, it appears the court did not find his explanations credible.

Rather, as the court noted, Olsen “decided that was the best [he] could do and ...

[he] was going to show up when [he] showed up.”

|13

The circuit court reiterated that a hearing was held, testimony was

given, a record was made and, ultimately, “the request [for an injunction] had

merit.” It thus implicitly found that finality of the order entered on some evidence

was more important than reopening the matter for additional evidence. State v.

Echols, 175 Wis. 2d 653, 672, 499 N.W.2d 631 (1993) (“An implicit finding of

fact is sufficient when the facts of record support the decision of the trial court.”).

Because Olsen failed to establish excusable neglect, the court properly denied his

motion to reopen the default judgment and it did not need to consider whether he

had a meritorious defense to the petition for an injunction. See Hollingsworth, 86

Wis. 2d at 184-85.

^[14

We next consider whether the circuit court properly issued an

injunction in the first instance.

To grant an injunction under Wis. Stat.

§ 813.125, the circuit court must find “reasonable grounds to believe that the

respondent has engaged in harassment with intent to harass or intimidate the

petitioner.” WlS. STAT. § 813.125(4)(a)3. This presents a mixed question of fact

and law. M.Q. v. Z.Q., 152 Wis. 2d 701, 708, 449 N.W.2d 75 (Ct. App. 1989).

We will not set aside the circuit court’s factual findings unless they are clearly

erroneous, see WlS. Stat. § 805.17(2), though we independently review the circuit

court’s conclusion, based on the established facts, whether such reasonable

grounds exist.

M.Q., 152 Wis. 2d at 708.

Whether to grant an injunction,

however, is within the sound discretion of the circuit court, and our review

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No. 2018AP271

ultimately is limited to whether that discretion was properly exercised. Welytok v.

Ziolkowski, 2008 WI App 67,123, 312 Wis. 2d 435, 752 N.W.2d 359.

115

Relevant to this appeal, “harassment” means “[e]ngaging in a course

of conduct or repeatedly committing acts which harass or intimidate another

person and which serve no legitimate purpose.” Wis. Stat. § 813.125(l)(am)2.

At the petition hearing, Francois testified that Olsen was her professor when she

was a freshman at the University of Wisconsin-Stout (UW-Stout) in the fall of

2015. After the class ended, Francois received emails from Olsen that Francois

deemed “weird” and “too personal.” As examples, Francois recounted emails in

which Olsen said he heard her singing in the hallways, and he thought she had a

nice voice. Olsen also talked about the meaning of friendship and stated that he

believed Francois had a temper.

116

In the summer of 2016, Olsen sent Francois a “long letter” stating he

was coming to Green Bay, where she lived, to visit the botanical gardens, and he

wanted to meet with her to talk. In the same letter, Olsen suggested that Francois

used her “male peers” and her “body” to earn her grades. Olsen also noted his

belief that Francois purposefully “led another student in [his] class astray” and

questioned Francois’s motivation for doing so.

117

Francois testified that in February 2017, she sent Olsen an email,

with a copy to the UW-Stout Dean of Students, asking Olsen to cease contact with

her. According to Francois, she continued receiving emails from Olsen, who

never mentioned the email in which Francois asked him to cease contact. In the

subsequent emails, Olsen stated that he had watched college softball games online

in which Francois was a player. Olsen also expressed his interest in attending a

game that was scheduled near his home in Minnesota. Francois acknowledged

8

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No. 2018AP271

S

that some of the emails to her were also addressed to other students and involved

“opportunities he saw and just different random things.”

|18

Francois testified that sometime around March 2017, she reported

the emails to the UW-Stout Police Department, and she was informed that the

police told Olsen to cease contact with Francois. On December 15, 2017, Francois

received a package addressed to her in a lecture hall where she has a number of

classes. Because the package had a Minnesota return address, she brought the

package to the police station to open.

Enclosed was a “bird feeder wreath”

Francois had sold to Olsen as a fundraiser when she was his student. Olsen also

enclosed a letter saying he found the wreath while cleaning his house; he thought

he should return it to her; and she could choose what to do with it. Francois

confirmed that although Olsen never threatened harm or mentioned firearms, his

actions gave her “the creeps,” as he continued to attempt contact with her despite

her requests to stop.

fl9

Before deciding the petition, the circuit court reiterated that it had

waited almost twenty minutes for Olsen to appear before proceeding with the

hearing. The court also recounted that Olsen had left voicemail messages but had

not requested to have the hearing continued or rescheduled, adding “a message

simply saying I might be late ... just doesn’t cut it,” as the court has “a busy

schedule, calendar.” The court determined that although Olsen had not made any

threats of harm, there was a “pattern of these messages repeatedly from a

63-year-old man to a 20-year-old ... former student of his,” with content

appearing to be “somewhat creepy.” The court further noted this contact “would

be disturbing and could have the effect of intimidating somebody,” adding that it

did not appear there was any legitimate purpose “for making these

communications.”

9

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No. 2018AP271

f20

The circuit court concluded there were reasonable grounds to believe

that Olsen had engaged in harassment with intent to harass or intimidate,

“[p]articularly, in connection with some of these messages where he appears to be

trying to develop some kind of a relationship but at the same time, indicates that

there may be some things that [Francois] did that may have been inappropriate on

her part.” To the extent Olsen contends the court “did not apply Wis. Stat.

§§ 813.125(1) and [813.125(4)(a)3.] to the facts,” his argument is undeveloped

and, therefore, unpersuasive. Ultimately, the court made the minimum findings

necessary to issue the injunction pursuant to § 813.125(4), and those findings were

supported by the record before it.

|21

Olsen argues on appeal that there are innocent explanations for the

various communications. The fact that there may be countervailing testimony

Olsen might have provided had he appeared does not establish that the circuit

court erroneously exercised its discretion in granting the injunction when the

record supports the court’s findings. Olsen also asserts the court failed to follow

“the rules of evidence” when it did not ask Francois for copies of the emails.

Olsen, however, provides no authority requiring the court to take additional

evidence if it was convinced by Francois’s testimony. “When the circuit court sits

as factfinder, it is the ultimate arbiter of the weight and credibility afforded to the

evidence.” Joseph Hirschberg Revocable Living Tr. v. City of Milwaukee, 2014

WI App 91, f10, 356 Wis. 2d 730, 855 N.W.2d 699.

f22

Finally, and for the first time on appeal, Olsen challenges the

constitutionality of a section of the statute governing harassment injunctions,

Wis. Stat. § 813.125(4)(a)3. Specifically, he asserts the “reasonable grounds”

standard therein violates due process. This argument, however, is not properly

before this court. Generally, issues not raised in or considered by the circuit court

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No. 2018AP271

will not be considered for the first time on appeal. Brown County v. DHSS, 103

Wis. 2d 37, 42, 307 N.W.2d 247 (1981). Moreover, a party is foreclosed from

challenging the constitutionality of a statute unless the party gives the Attorney

General of the State of Wisconsin a timely opportunity to appear and defend the

constitutionality of the law. Kurtz v. City of Waukesha, 91 Wis. 2d 103, 117, 280

N.W.2d 757 (1979). Nothing in the record indicates service upon the Attorney

General in connection with either the circuit court action or this appeal.

By the Court.—Orders affirmed.

This opinion will not be published.

809.23(l)(b)5.

11

See Wis. Stat. Rule