e-Journal Summary

e-Journal Number : 44901
Opinion Date : 01/26/2010
e-Journal Date : 02/02/2010
Court : Michigan Court of Appeals
Case Name : Baker v. Holloway
Practice Area(s) : Personal Protection Orders
Judge(s) : Per Curiam - Murphy, Jansen, and Zahra
Full Text Opinion
Issues:

Whether the trial court properly denied respondent-Holloway's motion to terminate the petitioner's ex parte PPO and in lieu of a hearing on the merits of termination of the PPO the trial court ordered her to mediate her dispute with petitioner; MCL 600.2950a(11); Pickering v. Pickering; The procedure applicable to PPO hearings (MCR 2.707(A)(2))

Summary

The court held mediation may not be imposed as a condition to having a hearing on the merits of a PPO, vacated the trial court's order denying the respondent's motion to terminate the PPO, and remanded for an evidentiary hearing to determine whether the PPO should be terminated. The parties have been neighbors for decades. In July 2008, the petitioner was granted an ex parte PPO, based in part on her allegation respondent had threatened to harm her with a gun. Respondent argued petitioner lied, timely objected to the issuance of the PPO, and invoked her statutory right to a hearing on the merits. A hearing referee conducted a hearing and invited petitioner to state why she thought the PPO should remain in place. Petitioner said respondent was "going around her neighborhood talking about me, you know, trying to get other peopled mad at me, it is childish. It needs to stop today." The referee stated the parties should be able to figure out how to get along, and without hearing from respondent, told the parties he wanted them to mediate their dispute. Respondent told the referee she was "fine with it," and asked the referee to let her talk and she wanted to resolve the matter that day. The referee said he was "not going to do that." The parties did not mediate. Respondent immediately filed a motion seeking de novo review by the trial court of the referee's decision. The trial court refused to rule on the merits of the PPO, observed the parties were ordered to mediate their issues, had not done so, and continued the PPO. The court concluded the allegations sworn to by the petitioner were sufficient for the ex parte PPO to issue. However, within 14 days of being served with the PPO, respondent timely filed a motion to terminate the PPO. When such a motion is filed, the trial court must schedule and conduct a hearing on the merits of the PPO. The court held the hearing referee did not obtain a valid waiver from respondent of her right to a hearing. Further, the trial court, on review, did not conclude she waived her right to a hearing on the merits. It appeared the trial court concluded the court-ordered mediation was reason enough not to rule on the merits of the PPO. The court held based on the record, there existed nothing justifying the continuance of the PPO. By requiring mediation and keeping the PPO in place, the trial court effectively denied respondent her statutory right to a prompt and timely review of the PPO, and this amounted to an abuse of discretion.

Full Text Opinion