COURT OF APPEALS
DATED AND FILED
July 24, 2008
David R. Schanker
Clerk of Court of Appeals
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.
STATE OF WISCONSIN
IN COURT OF APPEALS
James B. Rogers,
Paul G. Penkalski,
Michael S. Larsen,
Paul G. Penkalski,
from orders of the circuit court for
¶1 HIGGINBOTHAM, P.J. Paul Penkalski, appearing
pro se, appeals orders granted in favor of James Rogers and Michael Larsen,
enjoining Penkalski from contacting Rogers and Larsen for two years, and
denying his motions for reconsideration. Penkalski contends that Rogers and Larsen
filed falsified petitions for temporary restraining orders (TROs), and that
¶2 We conclude that the petitions state reasonable grounds on
which to issue TROs, and that, in Larsen’s case, the circuit court’s factual
findings supporting the issuance of the injunction were not clearly erroneous. However, we conclude that its findings in
¶3 Paul Penkalski was a member of the
¶4 Larsen and
¶5 A court commissioner granted temporary injunctions on both petitions. On April 18, 2006, the circuit court held hearings on the petitions, taking testimony from Penkalski and the respective petitioner in each case. At the conclusion of the hearings, the court issued harassment injunctions effective until April 18, 2008, in both cases. Penkalski requested a rehearing on the petitions. The circuit court denied the request without a hearing. Additional facts are provided in the discussion section as necessary.
¶6 On appeal, Penkalski challenges the injunctive orders on
several grounds. He argues that Larsen and
Rogers falsified their petitions, and that
1. Alleged Falsification of Petitions and Testimony
¶7 We construe Penkalski’s argument that Larsen and Rogers caused the court commissioner to err in issuing the TROs by falsifying the TRO petitions as a challenge to the sufficiency of the allegations stated in the TRO petitions. We construe his argument that the allegedly falsified TRO petitions and falsified hearing testimony of Rogers caused the circuit court to err in issuing the injunctions as a challenge to the court’s factual findings and credibility determinations supporting the injunctions. We consider first Penkalski’s challenges to the allegations in the TRO petitions.
a. Sufficiency of the TRO Petition Allegations
¶8 A person seeking an injunction against another person must
first petition a judge or court commissioner for a TRO. See Wis. Stat. § 813.125(4). A petition for a TRO must provide the name of
the victim, the name of the respondent, and allege that the respondent “has
engaged in harassment with intent to harass or intimidate the petitioner.” Wis. Stat. § 813.125(5). Before the judge or court commissioner may
issue a TRO, he or she must find that there are “reasonable grounds to believe
that the respondent has violated s. 947.013,”
the harassment statute. State
v. Sveum, 2002 WI App 105, ¶27, 254
¶9 Whether the facts alleged in a TRO petition constitute
reasonable grounds upon which to issue a TRO is a question of law that we
review de novo. See Kristi L.M. v. Dennis E.M.,
2007 WI 85, ¶22, 302
¶10 We discuss the specific falsehoods Penkalski alleges later when addressing the factual findings supporting the injunction. Presently, we confine our consideration of Penkalski’s challenge of the TROs to whether the petitions allege reasonable grounds to support the issuance of the orders, regardless whether the allegations contained in the petition are true, because the decision to grant a TRO is based on the facial allegations contained in the petition. See Wis. Stat. § 813.125(5).
¶11 We conclude that both petitions allege reasonable grounds to believe that Penkalski violated Wis. Stat. § 947.013 by intentionally engaging in a course of conduct that harassed Larsen and Rogers and which served no legitimate purpose. Larsen’s petition alleges that Penkalski “was instructed to have no contact” with him four times in August and September 2005 after Penkalski was removed from Hoofers, and that Penkalski sent at least 30 emails to him after the first no contact instruction was made. The petition further alleges that, on April 9, 2006, Penkalski visited Larsen’s apartment “claiming to be verifying [his] address for a law suit.” Larsen averred that Penkalski’s continued email contact and the recent visit to his home were unwelcome, and that he felt threatened by these contacts. These allegations state reasonable grounds on which to believe that Penkalski harassed Larsen within the meaning of § 947.013, and we therefore conclude that the court commissioner did not err in issuing the TRO.
b. Factual findings and credibility determinations supporting the injunctions
¶13 We turn now to Penkalski’s argument that alleged falsehoods
contained in Rogers’ and Larsen’s petitions, and alleged false hearing testimony
¶14 We conclude that the circuit court’s factual findings relevant
to Larsen’s case were not clearly erroneous.
¶15 With regard to Larsen’s petition, Penkalski maintains that the following statements contained therein are false: (1) “I [Larsen] have not been a club leader since 9-1-2005”; (2) “[Penkalski] sent out a threatening and harassing email to hundreds of club members containing a photo he took of me [Larsen] and several statement[s] suggesting ways to undermine or directly threaten the safety of myself and all club members”; and (3) There was a “clear increase in the seriousness” of Penkalski’s harassing behavior over time.
¶16 The circuit court made no explicit findings concerning these statements. However, by issuing the injunction, the circuit court implicitly rejected any claim that Larsen falsified his petitions in a manner material to the factual basis for the injunctive orders. Moreover, Penkalski admitted that he had sent approximately thirty emails to Larsen following his termination from the sailing club in August 2005. The record indicates that these emails were unwelcome, and violated an instruction of the Hoofers’ Board of Captains issued on August 1, 2005, that Penkalski cease contacting Larsen. We therefore conclude that the court’s findings in Larsen’s case were not clearly erroneous.
¶17 With regard to
¶18 The circuit court concluded that the injunction in
¶21 For the foregoing reasons, we therefore conclude that the
court’s finding that Penkalski was instructed not to contact
¶22 Penkalski’s remaining arguments pertain to the injunctions in
both the Larsen and Rogers cases. However,
because we have concluded that the
2. Sufficiency of the Evidence Supporting the Larsen Injunction
¶23 Penkalski appears to contend that the evidence was insufficient
to support the circuit court’s injunctive order in Larsen’s case. Penkalski argues that many of his contacts
with Larsen served a legitimate purpose, and therefore were not harassment
within the meaning of Wis. Stat. § 947.013(1m). When reviewing a challenge to the sufficiency
of the evidence supporting an injunctive order, we review the evidence in the
light most favorable to the order. See State
v. Lalor, 2003 WI App 68, ¶13, 261
¶24 As noted, Wis. Stat. § 947.013(1m)
penalizes “[w]hoever, with intent to harass or intimidate another person …
[e]ngages in a course of conduct or repeatedly commits acts which harass or
intimidate the person and which serve no legitimate purpose.” “‘Harass’ means to worry and impede by
repeated attacks, to vex, trouble or annoy continually or chronically, to
plague, bedevil or badger. ‘Intimidate’
means ‘to make timid or fearful.’” Bachowski
v. Salamone, 139
¶25 Penkalski contends that his visit to Larsen’s apartment door was made to verify Larsen’s home address for the purpose of filing a law suit against him, a legitimate purpose that is by definition not harassment under Wis. Stat. § 947.013(1m). The circuit court made no finding concerning the purpose of Penkalski’s visit to Larsen’s apartment door. However, Larsen confirms Penkalski’s account that the reason for the visit was to verify Larsen’s address for litigation purposes. Moreover, there is no evidence that Penkalski was confrontational or belligerent toward him during the visit. We therefore conclude that the visit to Larsen’s apartment door was not harassment as defined by § 947.013(1m).
¶26 Nonetheless, we conclude that the unwelcome emails to Larsen are a sufficient basis on which to support the injunction against Penkalski. In an August 1, 2005 email, Larsen, acting in his capacity as a Hoofers’ leader, informed Penkalski of the Hoofers’ Board of Captains’ decision to terminate his membership, and instructed him to cease contact with Larsen and other persons associated with Hoofers. The next day, Penkalski contacted Larsen twice by email to protest the Board’s action, telling Larsen: “You must deal with this at once. I want to sail on Thursday (8/4).” Larsen emailed Penkalski to reiterate that further attempts to contact him would be unwelcome. Penkalski emailed back: “You are getting yourself into serious trouble.” In the following days, Penkalski continued to send emails to Larsen regarding the termination of his membership, to which Larsen responded by renewing his no-contact request. In an email to Larsen dated September 15, 2005, Penkalski stated: “I have the right to contact anyone i choose, so long as i have a legitimate reason for doing so…. Clear?” A September 29, 2005 email from Penkalski to Larsen states: “Have my sailing privileges been reinstated yet?? I’d like to sail this weekend. I assume that by now you’ve realized the extent of your wrongdoing.” On December 16, 2005, Penkalski emailed Larsen regarding whether Larsen planned to testify against Penkalski in a legal proceeding: “Have you been called to testify against me …? .... (If so, do you like the thought of having to go to court to do that..? Do you think it will do anyone any good? Is looking forward to that in any way a distraction from your studies?)”
¶27 Penkalski admits that the tone of some of these emails “may have seemed inflammatory.” It is undisputed that the emails were unwelcome and that they were sent after Penkalski had exhausted his available remedies under the Hoofers’ rules to challenge the termination of his membership. Given these facts, we conclude that a reasonable trier of fact could find that these emails were not sent for any legitimate purpose, and that they represented a course of conduct that was intended to harass Larsen.
¶28 Penkalski asserts that he had stopped emailing Larsen regularly well before Larsen sought the injunction. Penkalski notes that Larsen sent Penkalski an email dated April 4, 2006, thanking Penkalski for not contacting him recently. While this evidence may argue against the issuance of an injunction, it does not demonstrate that, on the record before the circuit court, no reasonable trier of fact could have found the elements necessary to support the issuance of an injunction.
3. Scope of the Larsen Injunction
¶29 Penkalski contends that, even if the evidence was sufficient to
support the issuance of the Larsen injunction, the scope of conduct enjoined by
the injunction was overly broad. The
scope of a harassment injunction lies within the sound discretion of the
circuit court. W.W.W. v. M.C.S., 185
¶30 Injunctions issued under Wis. Stat. § 813.125
“must be specific as to the acts and conduct which are enjoined.” Bachowski, 139
¶31 We note that the circuit court’s hand-written order directed Penkalski to “avoid [Larsen’s] residence and any premise temporarily occupied by [Larsen]” and specified that Penkalski have “No e-mail or cc of email[,] no contact at all” with Larsen “except thru counsel! or mail for legal action—filed—is OK.”
¶32 Because it is undisputed that Penkalski’s harassment of Larsen was confined to email contact, we conclude that the circuit court’s order enjoining Penkalski to “avoid the residence and any premises temporarily occupied by the petitioner/victim” was overly broad. As explained earlier, the intent of Penkalski’s contact with Larsen at his residence was to verify Larsen’s address for litigation purposes, and was not harassment under Wis. Stat. § 947.013(1m). Larsen alleged no other incidents of face-to-face contact by Penkalski. We therefore conclude that the circuit court’s injunctive order in Larsen’s case was overly broad.
¶33 In sum, we conclude that the petitions state reasonable grounds
on which to issue TROs, and that, in Larsen’s case, the circuit court’s factual
findings supporting the issuance of the injunction were not clearly
erroneous. However, we conclude that its
By the Court.—Orders affirmed in part and reversed in part.
Not recommended for publication in the official reports.
 This matter involves two separate appeals, Nos. 2006AP1723 and 2006AP1724, arising from separate actions brought by Rogers and Larsen, respectively. We ordered these appeals consolidated for disposition.
 The injunctions in these cases were effective until April 18, 2008. Because the injunctions are no longer in effect, further proceedings before the circuit court are unnecessary.
 All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
makes a number of additional arguments that we decline to address for various
reasons. He contends that the
injunctions amount to cruel and unusual punishment under the Eighth and
Fourteenth Amendments to the United States Constitution. We do not address this argument because it is
insufficiently developed. Kristi
L.M. v. Dennis E.M., 2007 WI 85, ¶20 n.7, 302
suggests that he was denied due process by the circuit court’s request that he
“just summarize” the contents of documents that he sought to introduce into
evidence. However, the record shows that
Larsen did not protest when the court requested that he summarize the
documents. Penkalski has therefore
waived his right to raise this issue on appeal.
Penkalski also makes a series of arguments for the first time on appeal. These include that he was denied due process by being denied the opportunity to examine and respond to evidence presented at the hearings; the circuit court erroneously concluded that Wis. Stat. § 813.125 applies to e-mail communications; and Larsen’s petition was incomplete and service of the petition failed to meet the requirements of § 813.125. As a general rule, we do not address issues raised for the first time on appeal, Greene v. Hahn, 2004 WI App 214, ¶21, 277 Wis. 2d 473, 689 N.W.2d 657, and we decline to do so here.
Temporary restraining order. (a) A judge or circuit court commissioner may issue a temporary restraining order ordering the respondent to cease or avoid the harassment of another person, to avoid the petitioner’s residence, except as provided in par. (am), or any premises temporarily occupied by the petitioner or both, or any combination of these remedies requested in the petition, if all of the following occur:
1. The petitioner files a petition alleging the elements set forth under sub. (5)(a).
2. The judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in harassment with intent to harass or intimidate the petitioner.
do not mean to suggest that emails copied to another person will never
constitute harassment as long as the sender puts the recipient’s email address
in the “cc” line instead of the “to” line.
The relevant inquiry is whether the email evinces an intent to harass
the recipient. In this case, the emails
 This is in contrast to the emails Larsen submitted with his petition, which show that Larsen repeatedly asked Penkalski to stop contacting him. Moreover, as a member of Hoofers, Larsen was included in the group of persons Guthier directed Penkalski to refrain from contacting in the August 5 and August 29 letters.
noted earlier, Penkalski’s contacts with
 We note, however, that Larsen was clearly upset by the visit. He reported the incident to the Madison Police Department, and states in the petition that given “the clear increase in the seriousness from him coming to my apartment, I most definitely feel both harassed and threatened by Paul (he very literally scares me).”