Timothy Pflieger v. Lara Bush-Pensy

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 17, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1794 Cir. Ct. No. 2018CV4

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

TIMOTHY PFLIEGER,

PETITIONER-RESPONDENT,

V.

LARA BUSH-PENSY,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Door County:
KEITH A. MEHN, 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).

¶1 PER CURIAM. Lara Bush-Pensy appeals from an order denying
her motion for relief from a harassment injunction entered in favor of Timothy
No. 2018AP1794

Pflieger. Bush-Pensy contends: (1) evidence that Bush-Pensy had violated a
stipulation upon which the injunction action had previously been dismissed was
insufficient to support the issuance of the injunction because there was no showing
the violation was intentional and the stipulation was itself illegal and against
public policy; (2) the judge issuing the injunction failed to disclose contacts he had
with Pflieger’s family in violation of WIS. STAT. § 757.19(3) (2017-18);1 and
(3) the injunction is overbroad because it prohibits conduct broader than the
claimed harassment. We affirm on the grounds that Bush-Pensy has failed to
develop any argument showing the circuit court erroneously exercised its
discretion when it refused to grant relief from the injunction.

BACKGROUND

¶2 On January 10, 2018, Pflieger filed a petition seeking a harassment
injunction against Bush-Pensy. The petition alleged that after Pflieger and
Bush-Pensy ended their relationship, Bush-Pensy sent Pflieger and one of
Pflieger’s employees a series of over eighty unwelcome text messages, as well as
emails, Facebook messages, and phone calls with voicemails.

¶3 On February 1, 2018, the parties signed a stipulation to dismiss the
case, agreeing that they would each avoid contact with one another, their
immediate family, clients, associates, employees and co-workers. The stipulation
further provided that the case could be reopened based upon future contact
occurring after the dismissal. In that event, any future contact by Bush-Pensy

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

2
No. 2018AP1794

could be deemed harassment serving no legitimate purpose, and the circuit court
could rely upon the stipulation to enter an injunction against Bush-Pensy.

¶4 On March 12, 2018, Pflieger moved to reopen the case. The motion
was accompanied by an affidavit averring that Bush-Pensy had sent Pflieger three
emails after the stipulation between the parties was filed and the case was
dismissed, along with printouts of those emails. The first email stated “whoever
you are, leave us all alone[,]” and it was sent in reply to a message sent to
Bush-Pensy by an anonymous third party. Bush-Pensy copied Pflieger on her
reply to the third party. The second and third emails were electronic notifications
stating “Delete record” and “Delete record file, code 473_495-5272.”

¶5 On March 14, 2018, Pflieger sent Bush-Pensy two emails with the
subject line “Judgement Day” stating: “Judgement day is coming for you[,]” and
“The final countdown and she won’t be able to shit without my say-so.” On
March 16, 2018, Pflieger sent Bush-Pensy another email with the subject line
“Judgement Day” stating: “You’re going to be knocked off your pedestal. They
won’t think you’re so great then. Who do you think you are with your newspaper
articles. Enjoy your last days of freedom. Monday is judgement day for you.”

¶6 On March 19, 2018, the circuit court held a hearing on the motion to
reopen. Bush-Pensy’s attorney made an offer of proof that: (1) Bush-Pensy had
inadvertently hit “reply all” in response to the message from the anonymous party;
and (2) Bush-Pensy had sent the second and third messages based on internet
research she conducted about how to delete her phone number from the record of
the person who had sent it, without realizing that those messages would go directly
to Pflieger. The court accepted the offer of proof in lieu of testimony, but it
concluded that Bush-Pensy’s reasons for sending the emails were immaterial

3
No. 2018AP1794

because the stipulation was unequivocal that all contact was prohibited and would
constitute further harassment. The court then entered a four-year harassment
injunction.

¶7 On March 22, 2018, Pflieger sent Bush-Pensy an email stating: “I
told you what would happen to you if you crossed me.” On March 24, 2018,
someone sent Bush-Pensy an email from Pflieger’s work address with the subject
line “Judgement Day” stating: “Having trouble sleeping?”

¶8 Bush-Pensy did not move the circuit court to reconsider the
injunction nor did she appeal the injunction. Instead, on May 22, 2018,
Bush-Pensy filed a motion for relief from judgment pursuant to WIS. STAT.
§ 806.07.2 Bush-Pensy claimed she was entitled to have the injunction set aside
either under subsection (1)(g) of the statute because it was no longer equitable to
enforce it given Pflieger’s continuing emails to her, or under subsection (1)(h)
because extraordinary circumstances warranted abandoning the finality of the
judgment in favor of an overall sense of justice, according to the five-factor test
set forth in Miller v. Hanover Insurance Co., 2010 WI 75, ¶36, 326 Wis. 2d 640,
785 N.W.2d 493. In support of the latter claim, Bush-Pensy alleged that the merits
of the injunction had never been fully presented because the stipulation was akin
to a default judgment and because her counsel did not present Bush-Pensy’s
testimony at the hearing to reopen, and that Bush-Pensy had a meritorious defense.

¶9 The circuit court first observed that, while Pflieger’s alleged emails
from March 2018 were troubling, Bush-Pensy’s remedy would be to obtain her

2
Judge Mehn heard the motion after Judge D. Todd Ehlers recused himself.

4
No. 2018AP1794

own injunction against him, not to set aside the prior injunction against her.
Regarding Bush-Pensy’s second claim, the court rejected the assertions that the
merits of the injunction had not been tried or that counsel had provided ineffective
assistance by not having Bush-Pensy testify at the hearing to reopen because the
court had accepted Bush-Pensy’s offer of proof. The court further rejected
Bush-Pensy’s assertion that she had a meritorious defense because it concluded
the three emails Bush-Pensy sent did violate the stipulation. The court found that
Bush-Pensy had not met her burden under WIS. STAT. § 806.07 and denied her
motion for relief from judgment. Bush-Pensy now appeals.

STANDARD OF REVIEW

¶10 As a threshold matter, we note that neither the circuit court’s
decision to reopen the case based upon the violation of the stipulation nor the
validity of the injunction are properly before us on this appeal because Bush-Pensy
did not appeal the injunction. Therefore, we will not address Bush-Pensy’s
arguments that there was insufficient evidence to support the injunction or that the
terms of the injunction were overbroad.3

¶11 In sum, the scope of our review is limited to determining whether the
circuit court properly denied Bush-Pensy’s motion for relief from judgment under
WIS. STAT. § 806.07. We review a circuit court’s discretionary decision whether
to grant relief from judgment with great deference, and we will uphold it as long

3
In addition, we will not address Bush-Pensy’s claim that Judge Ehlers should have
recused himself from hearing her motion because she concedes in her reply brief that the alleged
contacts between Judge Ehlers and Pflieger that underlie that claim have no evidentiary basis in
the record.

5
No. 2018AP1794

as it was supported by a reasonable basis. Sukala v. Heritage Mut. Ins. Co., 2005
WI 83, ¶8, 282 Wis. 2d 46, 698 N.W.2d 610.

DISCUSSION

¶12 WISCONSIN STAT. § 806.07(1) allows a circuit court to reopen an
order or judgment when: “(g) It is no longer equitable that the judgment should
have prospective application; or (h) Any other reasons justify relief from the
operation of the judgment.” The catchall provision under sub. (h) should be
employed only when extraordinary circumstances are present, taking into
account: (1) whether the judgment was the result of the conscientious, deliberate
and well-informed choice of the claimant; (2) whether the claimant received the
effective assistance of counsel; (3) whether there had been any judicial
consideration of the merits and the interest of deciding the case on the merits
outweighs the interest in finality of judgments; (4) whether there was a meritorious
defense to the claim; and (5) whether there are intervening circumstances making
it inequitable to grant relief. Miller, 326 Wis. 2d 640, ¶36.

¶13 Although Bush-Pensy sought relief under both WIS. STAT.
§ 806.07(1)(g) and (h) in the circuit court, she has not developed any argument on
appeal relating to either the equity of prospective application of the injunction or
the Miller factors. This court need not address undeveloped arguments. State v.
Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). We therefore
reject any claim by Bush-Pensy that the circuit court erroneously exercised its
discretion in denying her motion for relief from judgment.

6
No. 2018AP1794

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

7