e-Journal Summary

e-Journal Number : 45357
Opinion Date : 03/18/2010
e-Journal Date : 03/24/2010
Court : Michigan Court of Appeals
Case Name : Niva v. Najer
Practice Area(s) : Personal Protection Orders
Judge(s) : Per Curiam - Davis, Fort Hood, and Servitto
Full Text Opinion

Due process; Kampf v. Kampf; Thomas v. Pogats; Dobrzenski v. Dobrzenski; Whether the respondents were given the opportunity to present a meaningful defense; Cummings v. Wayne County; Failure to allow the respondents to make an offer of proof to preserve the evidence for appellate review; MRE 103(a)(2); Detroit v. Detroit Plaza Ltd. P'ship


Agreeing with the respondents the trial court deprived them of due process when it refused to permit them the opportunity to present a meaningful defense, the court vacated the PPOs at issue. The petitioners alleged the respondents, their neighbors, were unnecessarily driving by their home and making inappropriate gestures and remarks. Respondents' counsel objected during the petitioners' testimony, and the trial court instructed counsel to allow petitioners to tell their "side of the story." Respondents' counsel asserted there was a long running dispute between the petitioners and the neighborhood residents, and 13 residents had appeared to give testimony. The respondents had placed video cameras on their homes to record alleged abuse and harassment by the petitioners. The trial court stated it would not hear testimony from 13 witnesses on a PPO case, and would examine very little of the videotape. Before the respondents were permitted to testify, the trial court stated "there's so much animosity in this situation, that somebody does need personal protection orders." Respondents' counsel asked for the opportunity to present their case, but the trial court signed the orders before permitting the respondents to testify. The trial court also advised them they should seek to file requests for PPOs against the petitioners. When respondents' counsel asked about the basis for entry of the PPOs, the trial court stated "animosity" was the reason. One of the respondents denied any harassment of the petitioners and cited videotape to prove no harassment took place on the dates alleged. The trial court stated, "They took an oath to tell the truth, you took an oath to tell the truth and who am I supposed to believe?" Respondents' counsel offered the videotape as proof of who should be believed, but the trial court refused to watch it. The court concluded "the trial court deprived respondents of a meaningful opportunity to defend the case." The trial court signed the orders granting the PPOs while the hearing was proceeding and before the respondents had the opportunity to place all their proofs on the record. The trial court also denied their request to hear additional witnesses or to view portions of the videotape. "Finally, the trial court refused to assess the credibility of the witnesses despite the fact that the PPOs would be entered in the law enforcement's LEIN system."

Full Text Opinion