Kaylee Ann Francois v. David Allen Olsen

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.
July 16, 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. 2018AP271 Cir. Ct. No. 2017CV316

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

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).

¶1 PER CURIAM. David Olsen appeals a harassment injunction order
entered by default, in favor of Kaylee Francois. Olsen also appeals the order
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, WIS. STAT. § 813.125(4) (2017-18),1 is
unconstitutional. We reject Olsen’s arguments and affirm the orders.2

BACKGROUND

¶2 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.
1
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.

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¶3 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.

¶4 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

¶5 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.

¶6 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

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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(1)(b).

¶7 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(1)(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.

¶8 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.

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Hanover Ins. Co., 2010 WI 75, ¶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).

¶9 Olsen argues he is entitled to relief under WIS. STAT.
§ 806.07(1)(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, ¶9, 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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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, ¶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.

¶11 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.

¶12 Although the circuit court did not specifically reference WIS. STAT.
§ 806.07(1)(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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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.” WIS. 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 WIS. 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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ultimately is limited to whether that discretion was properly exercised. Welytok v.
Ziolkowski, 2008 WI App 67, ¶23, 312 Wis. 2d 435, 752 N.W.2d 359.

¶15 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(1)(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.

¶16 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.

¶17 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

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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.

¶19 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.”

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¶20 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, ¶10, 356 Wis. 2d 730, 855 N.W.2d 699.

¶22 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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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. See WIS. STAT. RULE
809.23(1)(b)5.

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