e-Journal Summary

e-Journal Number : 55992
Opinion Date : 12/12/2013
e-Journal Date : 01/02/2014
Court : Michigan Court of Appeals
Case Name : Weber v. Draper
Practice Area(s) : Personal Protection Orders
Judge(s) : Per Curiam – Sawyer, Markey, and Stephens
Full Text Opinion

Effect of the fact the respondent was not served with the petition for the PPO; Service of process rules; Hill v. Frawley; MCR 2.105(J)(1) & (3); Lamkin v. Engram; Effect of errors in the content or manner of service; Bunner v. Blow-Rite Insulation Co.; PPO hearings; MCR 3.705(B)(2), (4) & (5); Hayford v. Hayford; Effect of respondent's announcement to the trial court that he tried but had been unable to retain counsel; Sword v. Sword; Rocky Produce, Inc. v. Frontera; Wykoff v. Winisky; "Good cause" for an adjournment; Zerillo v. Dyksterhouse; In re Krueger Estate


Holding that the trial court did not abuse its discretion in issuing the PPO, the court affirmed the trial court's order granting the petitioner the PPO. The court rejected the respondent's argument that the PPO should be dismissed because he was not served with the petition, given that he actually appeared at the PPO hearing. Further, he was not entitled to an adjournment, much less dismissal, on the basis that he informed the trial court that he had tried but been unable to retain counsel. The parties previously dated. Petitioner sought a PPO, alleging that respondent engaged in "harassing and intimidating" behavior. The court noted that the MCRs do not state that dismissal is required in the scenario presented in this case. Respondent "received the notice of the hearing and was clearly aware of the nature of the proceeding as evidenced by a prepared affidavit he read to the trial court. MCR 2.105(J)(3) states that '[a]n action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within the time provided in these rules for service.'" Thus, because respondent was informed of the action, and there was no indication this did not occur within the time period provided, "the 'action shall not be dismissed . . . .'" While failure to receive a copy of the petition "may have inhibited respondent's ability to prepare for the hearing, the trial court recognized this and announced that although it would issue the PPO based on petitioner's testimony, it would also grant respondent a hearing should he move to modify or terminate the newly issued PPO. Because '[t]he petitioner bears the burden of establishing reasonable cause for issuance of a PPO, and of establishing a justification for the continuance of a PPO at a hearing on the respondent's motion to terminate the PPO,'" the court concluded that "granting such a hearing would adequately account for any prejudice respondent suffered by petitioner's failure to properly serve the petition." The court noted that "a party's failure to retain counsel does not necessarily require an adjournment," and concluded the record showed that "respondent had a reasonable opportunity to obtain counsel and had not found counsel." Further, the trial court's ruling that it would provide him a hearing to argue for terminating the PPO gave him "additional opportunity to retain counsel and present a fully informed challenge to the petition without meaningfully altering the parties' respective burdens."

Full Text Opinion