e-Journal Summary

e-Journal Number : 52911
Opinion Date : 10/11/2012
e-Journal Date : 10/17/2012
Court : Michigan Court of Appeals
Case Name : Austin v. Brumley
Practice Area(s) : Personal Protection Orders
Judge(s) : Per Curiam – Murray, Cavanagh, and Stephens
Full Text Opinion

Whether the trial court abused its discretion in issuing a PPO against defendant; Pickering v. Pickering; Smith v. Khouri; Kampf v. Kampf; Nastal v. Henderson & Assocs. Investigations, Inc.; Due process; Whether the trial judge harbored bias against the defendant; Waiver; In re Schmeltzer; In re Forfeiture of $53; People v. Dixson; People v. Gibson (On Remand); Bayati v. Bayati; Cain v. Department of Corrs.; Ireland v. Smith; Armstrong v. Ypsilanti Twp.; Claim that the trial court erred in not sua sponte terminating the PPO against defendant at plaintiff's show cause hearing as to whether defendant violated the order; Great Lakes Div. of Nat'l Steel Corp. v. Ecorse; Mootness; Leemreis v. Sherman Twp.; Michigan Nat'l Bank v. St Paul Fire & Marine Ins. Co.; In re Dodge Estate; In re Martin; Illinois State Bd. of Elections v. Socialist Workers Party


The court held that the trial court did not abuse its discretion in finding defendant's conduct would cause a reasonable person emotional distress and the conduct actually caused plaintiff emotional distress. Because there was other ample evidence to find that he committed a course of prohibited behavior causing plaintiff emotional distress, the court upheld the trial court's grant of a PPO against him. The evidence established several instances of conduct by defendant that would cause a reasonable person emotional distress. Defendant admitted he struck a rock when plaintiff was present, causing rock chips to fly around her. He called plaintiff lewd names, told her she is a loser, and made weird faces and noises at her. Defendant called plaintiff's daughter a whore and a bitch, and has tape recorded plaintiff's four-year old granddaughter while she played in plaintiff's backyard. Defendant threatened to kick plaintiff's dog in the head, and threw rocks through her storm door. He often gave plaintiff and her company the middle finger. Plaintiff stated defendant makes her feel very uncomfortable, she does not trust him, and she "wouldn't put it past him to maybe burn my house or something." This evidence established a course of behavior by defendant that would cause a reasonable person emotional stress, and established plaintiff actually felt emotionally distressed. Defendant argued the trial court erred in relying on his conduct of videotaping plaintiff's property and defendant posting pictures in his yard facing plaintiff in issuing the PPO. Defendant claimed this behavior is constitutionally protected and served a legitimate purpose. Defendant, however, did not explain how his behavior was constitutionally protected. Although defendant's tape recording of his property may have served a legitimate purpose in detecting and deterring property crimes against him, the court questioned whether the tape recording served a legitimate purpose in this case, when defendant appeared to have been tape recording plaintiff's behavior even when plaintiff was home, and went so far as to tape record plaintiff's four-year old granddaughter while she played in the back yard. Even disregarding the evidence of defendant tape recording, the court held that the trial court's decision did not amount to an abuse of discretion.

Full Text Opinion