e-Journal Summary

e-Journal Number : 51133
Opinion Date : 03/15/2012
e-Journal Date : 03/19/2012
Court : Michigan Court of Appeals
Case Name : Lamkin v. Engram
Practice Area(s) : Personal Protection Orders
Judge(s) : K.F. Kelly, Whitbeck, and Jansen
Full Text Opinion
Issues:

Dismissal of PPO petitions without first interviewing the plaintiff or conducting a hearing as required by MCR 3.705; MCL 600.2950a(1); Kampf v. Kampf; Alleged violation of MCL 750.411h; "Stalking" (MCL 750.411h(d)); "Harassment" (MCL 750.411h(c)); "Unconsented contact" (MCL 750.411h(e)); Whether the plaintiff was denied the opportunity to explain how the respondent's conduct constituted harassment in violation of MCR 3.705; Court rule interpretation; Kloian v. Domino's Pizza LLC; Effect of "shall"; In re Credit Acceptance Corp.; MCR 3.705(A)(5); MCR 3.705(B)(1)

Summary

Holding that the trial court committed reversible error by dismissing the plaintiff's PPO petitions without first interviewing her or conducting a hearing as required by MCR 3.705, the court vacated the trial court's order denying her petitions and remanded the case for further proceedings. The parties are neighbors. Respondent's family and visitors "make frequent use of an easement" through plaintiff's property. Plaintiff sought a PPO under MCL 600.2950a against respondent for what she deemed harassing behavior. She argued on appeal that because she was not interviewed by the trial court or given a hearing, she was denied the opportunity to explain how respondent's conduct constituted harassment in violation of MCR 3.705. The court agreed, concluding that while the trial court may not have abused its discretion in denying her petitions on the facts stated in them, the trial court erred by dismissing them without interviewing plaintiff or holding a hearing. The court noted that "shall" indicates a mandatory provision. Pursuant to MCR 3.705(A)(5), the "trial court is not required to conduct a hearing only if, after conducting an interview, the court determines the petitioner's claims are without merit." Plaintiff asserted that she did not request an ex parte PPO - rather, she wanted and expected to receive a hearing, or, at a minimum, an "interview" with the trial court. "This was her right." However, for whatever reason, the trial court treated her petitions as ex parte requests. "Before the trial court could simply deny the petitions, it was required to interview" plaintiff "or hold a hearing." The trial court record offered no indication that plaintiff was interviewed about the merits of her claim. She also had the right to request a hearing within 21 days of the denial, and she repeatedly invoked her right to a hearing. The court took issue with "the repeated denials" of her requests. Further, the court noted that "the trial court's actions in this case were in contravention of its own internal rules governing PPOs." A "petitioner seeking a PPO bears the burden of proving reasonable cause for the issuance of a PPO. When making that determination, the trial court is not limited to the four corners of the petition itself; rather, it must consider the testimony, documents, and other evidence proffered to determine whether a respondent engaged in harassing conduct." The MCRs "specifically require a trial court to go beyond the PPO petition and either interview the petitioner, or provide an evidentiary hearing." Since neither of these procedures was followed, the case had to be remanded. Vacated and remanded for further proceedings.

Full Text Opinion