v. David Franke

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 7, 2022
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. 2019AP2285 Cir. Ct. No. 2018CV606

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

PETITIONER,

PETITIONER-RESPONDENT,

V.

DAVID FRANKE,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Kenosha County:
DAVID M. BASTIANELLI, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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).
No. 2019AP2285

¶1 PER CURIAM. David Franke appeals an order granting a
harassment injunction against him. Franke claims: (1) the evidence was
insufficient to support the order; (2) the injunction is overly broad in scope; and
(3) the circuit court erroneously denied his request for additional discovery. We
affirm.

BACKGROUND

¶2 The Petitioner and Franke were neighbors in the Maple Ridge
Subdivision in Kenosha, Wisconsin. On May 22, 2018, the Petitioner sought a
temporary restraining order and harassment injunction against Franke under WIS.
STAT. § 813.125 (2019-20).1 A court commissioner granted the temporary
restraining order on May 22, 2018. The injunction hearing began on June 4, 2018,
but had to be continued in order to complete the testimony. The hearing was
ultimately continued several times over the next eight months.

¶3 During the pendency of the proceedings, Franke deposed six
individuals, including the Petitioner, three of the Petitioner’s neighbors, the
Petitioner’s pastor, and a parishioner at the Petitioner’s church. The Petitioner and
two witnesses filed motions to prohibit further depositions and discovery. On

1
On March 26, 2018, Franke petitioned for a temporary restraining order and harassment
injunction against the Petitioner. Franke’s case was consolidated with the Petitioner’s. The court
commissioner denied Franke’s motion for a temporary restraining order and injunction. The
circuit court on its de novo review affirmed. Franke does not contest this ruling on appeal.
Accordingly, we do not address it. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475,
491, 588 N.W.2d 285 (Ct. App. 1998) (issue raised in the circuit court but not on appeal deemed
abandoned).

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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July 27, 2018, the court commissioner ordered that no further discovery be had
and quashed the notice of depositions.

¶4 The last hearing was on February 12, 2019. On that date, the court
commissioner granted the Petitioner a four-year injunction, which barred Franke
from, among other things, contacting the Petitioner or entering the Maple Ridge
Subdivision until February 12, 2023.

¶5 Franke moved for a de novo hearing before the circuit court and
renewed his request for additional discovery. At a hearing on the motion, Franke
asked the circuit court for “a scheduling order … similar to other cases, naming of
witnesses, taking some depositions.” The circuit court orally denied Franke’s
motion for additional discovery and set the injunction hearing for August 26,
2019.

¶6 Several witnesses testified at the August 26 hearing. Franke told the
circuit court that he met the Petitioner in 2007 and that the families would
socialize with each other. According to Franke, the Petitioner first told him in
2008 not to come to her house anymore, but would then change her mind. Franke
stated that, in November of 2010, the Petitioner told Franke to “go away again[,]”
but they would still do things together as families. During this time, Franke also
went to the cemetery where the Petitioner’s deceased husband was buried and
placed quarters on the burial plot. Franke testified that he did this from 2008 to
2011 to make visiting the burial plot a positive experience for the Petitioner’s
children.

¶7 Franke stated that in mid-to-late 2013, the Petitioner made it clear
that she did not want to have contact with him. Franke claimed that he did not
have contact with the Petitioner between 2013 and 2017, with the exception of one

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occasion in 2014 when he saw the Petitioner slip and fall while mowing her lawn.
Franke told the circuit court that he tried to talk to the Petitioner about it, but she
“just blew me off[,]” so he put a note in the Petitioner’s mailbox offering to mow
her lawn. When Franke did not hear from the Petitioner, he mowed the
Petitioner’s lawn.

¶8 On cross-examination, Franke testified that he left a pie in the
Petitioner’s doorway in late January or early February of 2013 or 2014. The
Petitioner threw the pie in a snowbank uneaten. Franke also attended the
Petitioner’s children’s swim meet, even though Franke knew the Petitioner did not
want to have anything to do with him. According to Franke, he found the location
online and went to the swim meet because he had a relationship with the
Petitioner’s children. When the Petitioner saw Franke at the swim meet, she
turned the other way and did not talk to him.

¶9 Franke moved to Neenah, Wisconsin, in September of 2017. Franke
said that, after he moved to Neenah, he attended Saturday evening church services
at the Lord of Life Lutheran Church in Kenosha two or three times. During those
services, the Petitioner sang in the band. Franke admitted that he emailed the
pastor at the Lord of Life Lutheran Church about the Petitioner and that he was
“asked to stop going to that church[.]”

¶10 After Franke moved, he also visited the Maple Ridge Subdivision
approximately eight times to visit friends or walk around the block “because it
brought back just wonderful, positive memories[.]” Franke said that during a visit
in February of 2018, he parked his truck on a dead-end street near the Petitioner’s
house because his truck would be parked for a long time, and he wanted to avoid
the snow.

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¶11 The Petitioner also testified. She told the circuit court that she was
friends with Franke, but decided to end the friendship because she had a new job
and did not “have time for his constant showing up at my house to talk.” When
the Petitioner told Franke that she did not have time, Franke would become angry
and yell. Franke would then “flip a switch” and try to talk to her.

¶12 The Petitioner also testified about the contacts with Franke
underlying the petition for the harassment injunction. According to the Petitioner,
Franke told her that he put quarters on her deceased husband’s burial plot. The
Petitioner did not tell Franke where her husband’s burial plot was or ask him to go
to the burial plot for any reason. When the Petitioner went to the grave with her
children, she would pick up the quarters so that her children would not be
distracted by them. Franke also went to her children’s swim meet in 2012, after
the Petitioner told Franke that she did not want him there. According to the
Petitioner, when Franke showed up and tried to talk to her, the Petitioner turned
and walked the other way.

¶13 The Petitioner stated that she made it clear to Franke in a series of
emails from January to August of 2013 that she wanted Franke to leave her alone.
In addition to telling Franke to “leave me and my family alone[,]” the Petitioner
told Franke in the emails to “[g]o away” and that she did not “want to ‘interact’
with” Franke. When Franke kept emailing her, the Petitioner blocked Franke’s
emails because Franke “wouldn’t listen[.]” The Petitioner also blocked Franke’s
cell phone number because Franke would call her several times in a row, and if the
Petitioner did not answer, he would leave long voicemail messages.

¶14 The Petitioner testified that Franke put birthday cards for her
children in the Petitioner’s mailbox after 2013. Additionally, Franke sent a letter

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to the Petitioner on May 19, 2014, stating that he did not know how to
communicate with the Petitioner and that he was doing her a favor by picking up
dog feces on her lot. In the letter, Franke wrote that he was no longer going to
pick up the dog feces on her lot.

¶15 The Petitioner told the circuit court that Franke walked up to her
when she was mowing her lawn, but that she “waived him away, ignored him[.]”
According to the Petitioner, Franke then put a letter in her mailbox, which she
returned unopened. When she was away, Franke mowed her lawn. The Petitioner
went to Franke’s house and told him not to mow her lawn. According to the
Petitioner, Franke followed her into her driveway and would not stop ringing her
doorbell, so she called the police.

¶16 The Petitioner testified that while she and her daughter were waiting
for the school bus in their minivan at the bottom of the driveway, Franke walked
up and started shaking his finger and yelling. According to the Petitioner, she
turned up her radio, locked the doors, and tried to ignore Franke. Franke did not
leave until the school bus showed up.

¶17 The Petitioner stated that in February of 2018, she looked out her
bedroom window one morning and saw Franke’s truck parked on the dead-end
street near her house. She told the court that it is not common for neighbors to
park on the dead-end street when snow is anticipated because the snowplow
pushes snow there. The Petitioner said that she felt bothered by Franke’s truck
because Franke would not leave her alone, and Franke likes his presence to be
known, especially if someone does not want him around.

¶18 The Petitioner’s daughter testified that in 2013 or 2014, Franke came
up to the Petitioner’s car while they were waiting for the school bus and “started

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No. 2019AP2285

pounding and screaming.” According to the Petitioner’s daughter, her mother
backed up the driveway and turned the radio up, but Franke “just kept pounding
and screaming at the window.” The Petitioner’s daughter also testified that in
2017 or 2018, Franke attended several church services at the Lord of Life
Lutheran Church. During the services, Franke would follow the Petitioner with
his eyes and watch the Petitioner for ten seconds to several minutes. According to
the Petitioner’s daughter, Franke would also slowly walk past where they were
seated.

¶19 Jeffrey Wamboldt, a parishioner at the Lord of Life Lutheran Church
and crime prevention officer, testified that in early 2018 he observed Franke watch
the Petitioner throughout a church service for twenty to thirty seconds at a time.
After the service, Wamboldt told Franke that he was scaring the Petitioner and
asked Franke to “not be where” she is.

¶20 Carrie Newman, the Petitioner’s neighbor, testified that prior to the
summer of 2017, she observed Franke standing at the end of the Petitioner’s
driveway with his hands on his hips and staring at the Petitioner’s house or
lingering on a dead-end street by the Petitioner’s house for a few minutes at least
once a day. Newman also saw Franke in the summer of 2017 in Newman’s yard
with a video camera. Franke used the video camera to take a still shot of the
Petitioner and her children at the end of the Petitioner’s driveway.

¶21 After considering all of the evidence, the circuit court found that the
Petitioner had shown reasonable grounds to believe that Franke intentionally
engaged in a course of conduct which harassed or intimidated the Petitioner and
which served no legitimate purpose. Accordingly, in a written order, it continued
the injunction against Franke that the commissioner had issued.

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DISCUSSION

A. Evidence of Harassment

¶22 Franke claims that there is insufficient evidence that he harassed the
Petitioner for two reasons: (1) the circuit court made erroneous findings of fact;
and (2) his actions had a legitimate purpose. We address each claim in turn.

¶23 “[T]o 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.’” Board of
Regents-U.W. Sys. v. Decker, 2014 WI 68, ¶20, 355 Wis. 2d 800, 850 N.W.2d
112 (quoting § 813.125(4)(a)3). “This presents a mixed question of fact and law.”
Welytok v. Ziolkowski, 2008 WI App 67, ¶23, 312 Wis. 2d 435, 752 N.W.2d 359.
We “will uphold the factual findings of the circuit court unless they are clearly
erroneous.” Decker, 355 Wis. 2d 800, ¶20. “We independently review the circuit
court’s conclusion, based on the established facts, whether such reasonable
grounds exist.” Welytok, 312 Wis. 2d 435, ¶23. As relevant to this case,
§ 813.125(1)(am)2 defines harassment as “[e]ngaging in a course of conduct or
repeatedly committing acts which harass or intimidate another person and which
serve no legitimate purpose.”

¶24 In this case, the circuit court made extensive findings to support its
conclusion that Franke harassed the Petitioner. The court first considered the
Petitioner’s requests to Franke to leave her alone. It reviewed Franke’s testimony
that, as early as 2008, the Petitioner told Franke that she did not want to maintain a
friendship. It noted that Franke testified the Petitioner would change her mind and
that they would still do things together as families. The court found that the

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Petitioner told Franke in 2013 that she did not want to have contact with Franke
and “appeared serious about it.”

¶25 The circuit court also considered the Petitioner’s testimony that she
had been friends with Franke, but that when she started a new job she did not have
time to talk to Franke, who would show up at her house unannounced. The court
found that “[i]t was [the Petitioner’s] perception that Franke could not accept this,
and would get angry[,] yelling at her about all the things he did for her and she did
nothing for him, but would then ‘flip a switch’ and become nice and request that
they should talk about it.” The court found the Petitioner’s testimony “more
credible than that of Franke as to the parties[’] interactions.”

¶26 The circuit court also reviewed the 2013 emails between the
Petitioner and Franke. It noted that, in the emails, the Petitioner asked Franke to
leave the Petitioner and her family alone and determined that the emails “show[ed]
a pattern of not accepting no for an answer.” The court found that, after the
emails, the Petitioner blocked Franke’s email and cell phone.

¶27 The circuit court then turned to the evidence showing that Franke
harassed the Petitioner. It found several incidents that showed Franke “could not
accept or understand that contact with him was not wanted[,]” including:
(1) Franke showed up at the Petitioner’s children’s swim meet, even though the
Petitioner told Franke she did not want Franke there; (2) Franke would leave
quarters on the Petitioner’s deceased husband’s burial plot; (3) Franke would bring
pies to the Petitioner and leave birthday cards for her children in the Petitioner’s
mailbox; and (4) while the Petitioner and her daughter were waiting for the school
bus, Franke came up to the Petitioner’s car screaming and yelling at the Petitioner.

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The circuit court found that these events happened after the Petitioner “had
informed Franke to leave her and her family alone.”

¶28 The circuit court then made several additional findings of
harassment: (1) in 2014, when the Petitioner told Franke not to mow her lawn,
Franke followed the Petitioner home and began ringing her doorbell constantly,
which caused the Petitioner to call the police; (2) Franke left a letter dated May 19,
2014 in the Petitioner’s mailbox, telling the Petitioner that he did not know how to
communicate with her and that he was no longer going to pick up the dog feces on
her lot; (3) Franke would walk around the Maple Ridge Subdivision, stop in front
of the Petitioner’s house, and look up the driveway for a few minutes; (4) Franke
would linger on the dead-end street by the Petitioner’s house; (5) Franke was in
the neighborhood with a video camera two or three times and took a picture of the
Petitioner and her children; (6) after Franke moved away in 2017, he would return
to the Maple Ridge Subdivision and walk around to relive good memories;
(7) Franke attended the Lord of Life Lutheran Church on a couple of occasions
and was asked not to return; and (8) Franke parked his truck on the dead-end street
where the Petitioner could see it. Based on all of this evidence, the court found
that Franke intentionally engaged in a course of conduct which harassed or
intimidated the Petitioner and which served no legitimate purpose.

¶29 Franke claims the circuit court erroneously exercised its discretion
when it found that several of the harassing offenses happened after the Petitioner
told Franke to leave her and her family alone. Specifically, Franke asserts that the
following contacts either occurred before the 2013 emails or that it is unclear
when they happened: the swim meet, leaving pies and birthday cards at the
Petitioner’s house, putting quarters at the Petitioner’s deceased husband’s burial
plot, and the school bus incident. Franke thus appears to claim that these incidents

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cannot be considered harassment because they occurred before the Petitioner made
it clear in 2013 that Franke’s contact was unwanted. We are not persuaded.

¶30 There is evidence in the record that the Petitioner made it clear to
Franke before 2013 that she did not want to have contact with him. Franke’s own
testimony shows that, as early as 2008, the Petitioner told Franke not to come to
her house anymore. The Petitioner also told Franke in 2012 that she did not want
Franke to come to her children’s swim meet. Additionally, witness testimony puts
many of the incidents in or around 2013. The Petitioner testified that Franke left
birthday cards for her children in her mailbox after 2013, Franke testified that he
left a pie in the Petitioner’s doorway in late January or early February of 2013 or
2014, and the Petitioner’s daughter testified that Franke started pounding on the
window of their car and screaming while she was waiting for the school bus in
2013 or 2014. Accordingly, we are satisfied that there is evidence in the record to
support the circuit court’s finding that sufficient events happened after the
Petitioner told Franke to leave her and her family alone.

¶31 We are also satisfied that the facts, as found by the circuit court,
provide reasonable grounds for the court’s finding that Franke intended to and did
harass the Petitioner. See Welytok, 312 Wis. 2d 435, ¶26 (intent to harass is
question of fact inferred from acts and statements of the person in view of the
surrounding circumstances). Over the course of nearly ten years, the Petitioner
repeatedly told Franke to leave her and her family alone. Despite these requests,
Franke continuously tried to force the Petitioner to interact with him, often in
threatening and intimidating ways. Franke showed up at the Petitioner’s
children’s swim meet after the Petitioner told Franke not to come, left birthday
cards in the Petitioner’s mailbox and a pie in the Petitioner’s doorway, sent
unwanted emails and letters, mowed the Petitioner’s lawn uninvited, yelled and

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screamed at the Petitioner’s car while she waited for the school bus with her
daughter, attended the Petitioner’s church after he moved, stood at the bottom of
the Petitioner’s driveway and stared at her house for a few minutes, and took at
least one photograph of the Petitioner and her children. As a result of these
contacts, the Petitioner blocked Franke’s email and cell phone number and called
the police. These facts provide reasonable grounds to support the court’s finding
of intent and harassment.

¶32 Franke also claims that the circuit court erroneously exercised its
discretion when it found that his actions lacked a legitimate purpose. Franke
provides what he claims are legitimate explanations for several of his contacts
with the Petitioner: he sent the May 19, 2014 letter to inform the Petitioner that he
would no longer pick up dog feces on her lot, returned to the Maple Ridge
Subdivision eight times in 2018 to relive good memories of prior walks in the
neighborhood, and carried a video camera with him to gather evidence in
preparation for litigation. Again, we are not persuaded.

¶33 Conduct with a harassing or illegitimate purpose remains
harassment, even if it is accompanied by an additional, legitimate purpose. See
Decker, 355 Wis. 2d 800, ¶38. In this case, the totality of the circumstances reveal
that Franke did not have a legitimate purpose for his actions. As we have seen,
Franke was aware that the Petitioner did not want to have contact with him. Yet,
for approximately ten years he persisted in attempting to contact her. Under these
circumstances, any additional, legitimate purpose underlying his conduct cannot
rectify his harassing conduct. See id. (A respondent “cannot shield his harassing
conduct from regulation by labeling it” innocent conduct.).

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¶34 In sum, we conclude that the facts, as found by the circuit court,
provide reasonable grounds to believe that Franke engaged in a course of conduct
that harassed or intimidated the Petitioner and served no legitimate purpose.
Accordingly, we are satisfied the circuit court properly granted the harassment
injunction.

B. Scope of Injunction

¶35 Franke next claims that the provision prohibiting him from entering
the Maple Ridge Subdivision is overbroad and infringes on his constitutionally
protected right to travel. He asserts that all of the acts supporting the injunction
involve either direct contact or unsolicited help or gifts, which do not require
Franke to be barred from the subdivision. Franke also argues that the prohibition
violates his constitutionally protected right to travel because he wishes to visit a
friend and business associate who lives in the neighborhood. We disagree.

¶36 The scope of an injunction is within the sound discretion of the
circuit court. Welytok, 312 Wis. 2d 435, ¶24. Injunctions must be specific as to
the prohibited acts and conduct in order for the person being enjoined to know
what conduct must be avoided. Bachowski v. Salamone, 139 Wis. 2d 397, 414,
407 N.W.2d 533 (1987). Only the acts or conduct which are proven at trial and
form the basis of the circuit court’s finding of harassment or substantially similar
conduct should be enjoined. Id.

¶37 The provision prohibiting Franke from entering the Maple Ridge
Subdivision is reasonably related to Franke’s harassing conduct. The circuit court
found that Franke’s harassing offenses toward the Petitioner occurred in multiple
places throughout the subdivision: Franke parked his truck on a dead-end street
visible from the Petitioner’s bedroom window, approached the Petitioner’s car

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while waiting at a bus stop, stopped in front of the Petitioner’s house and stared at
it, lingered in the dead-end street next to the Petitioner’s house, walked through
the neighborhood with a video camera, and took a photograph of the Petitioner and
her children from the neighbor’s yard. Based on these facts, we conclude that the
circuit court had reasonable grounds to prohibit Franke from entering the
Maple Ridge Subdivision.

¶38 We also conclude that the scope of the injunction does not infringe
on Franke’s constitutional rights. Geographic limitations are not a per se violation
of constitutional rights. See Predick v. O’Connor, 2003 WI App 46, ¶18, 260
Wis. 2d 323, 660 N.W.2d 1. Each case must be analyzed on its own facts,
circumstances, and total context to determine whether the geographic restriction is
narrowly drawn. Id. In this case, the reasonableness of the circuit court’s
geographic restriction is based on the fact that Franke’s harassing conduct
occurred throughout the subdivision. The Petitioner is entitled to a “zone of
protection” in which she can attempt to live her life in peace. See id., ¶1. The
provision prohibiting Franke from entering the Maple Ridge Subdivision is
narrowly tailored to achieve this objective.

C. Discovery

¶39 Finally, Franke claims that the circuit court erroneously exercised its
discretion when it denied his request for additional discovery. We begin by
examining the circuit court’s oral decision denying Franke’s motion. The circuit
court explained that it was denying Franke’s motion for two reasons. First, it
denied the motion because “the case has been pending over a year…. I know
there’s been hearings, et cetera.” Second, it stated that it did not believe that the
legislature intended for the normal discovery procedures to apply to harassment

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injunctions: “[U]nder [WIS. STAT. §] 813.125[(3)](c) it provides essentially that
the injunction will be heard essentially 14 days after the temporary [hearing].
Obviously there’s no time for discovery in that time frame so I don’t think the
legislature contemplated that.”2

¶40 As an initial matter, Franke argues that his request for additional
discovery should be reviewed under WIS. STAT. ch. 804 discovery procedures.
While he admits that the use of civil discovery procedure is generally inconsistent
with the fourteen-day requirement in WIS. STAT. § 813.125(3)(c), he notes that
§ 813.125(3)(c) allows the circuit court to extend the fourteen-day time limit with
the consent of the parties. Franke argues that, in these limited situations, the
general rules of civil discovery should apply. It is not necessary for us to reach the
merits of Franke’s discovery argument because he failed to show that the circuit
court erroneously exercised its discretion.

¶41 Under WIS. STAT. § 804.01(3), circuit courts have broad discretion
in determining whether to limit discovery through a protective order.
Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 232, 594 N.W.2d 370 (1999). Where
a movant “show[s] good cause, § 804.01(3) permits the circuit court to make any
order ‘to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense.’” See Paige K.B., 226 Wis. 2d at 232 (quoting WIS.

2
WISCONSIN STAT. § 813.125(3)(c) provides, as relevant:

A judge or circuit court commissioner shall hold a hearing on
issuance of an injunction within 14 days after the temporary
restraining order is issued, unless the time is extended upon the
written consent of the parties, extended under s. 801.58 (2m), or
extended once for 14 days upon a finding that the respondent has
not been served with a copy of the temporary restraining order
although the petitioner has exercised due diligence.

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No. 2019AP2285

STAT. § 804.01(3)). We review the circuit court’s decision for an erroneous
exercise of discretion and will affirm as long as the circuit court examined the
relevant facts, applied the proper legal standard, and reached a reasonable
conclusion. Id. at 232-33.

¶42 As we have seen, in this case, the circuit court orally denied
Franke’s motion for additional discovery because the case had been pending for
over one year. Franke claims that this is an erroneous exercise of discretion
because the court did not engage in any significant analysis. We are not
persuaded.

¶43 Our examination of the record shows a reasonable basis for the
circuit court’s ruling. See Welytok, 312 Wis. 2d 435, ¶24 (we generally look for
reasons to sustain discretionary rulings). At the time of Franke’s request for
additional discovery, Franke had already conducted six depositions. Aside from a
general statement to the court that discovery was necessary to name witnesses and
take depositions, Franke did not tell the court which witness he sought to depose
or provide the court with the specific information he sought. Under these
circumstances, the circuit court properly exercised its discretion when it denied
Franke’s motion for additional discovery. See, e.g., Kinnick v. Schierl, Inc., 197
Wis. 2d 855, 865, 541 N.W.2d 803 (Ct. App. 1995) (party claiming additional
discovery is necessary has burden to show by more than mere speculation that the
discovery is relevant).

By the Court.—Order affirmed.

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

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