Lw v. Scm ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
LW, UNPUBLISHED
January 19, 2023
Petitioner-Appellee,
V No. 359150
St. Clair Circuit Court
SCM, LC No. 19-002511-PH
Respondent-Appellant.
LW,
Petitioner-Appellee,
V No. 359153
St. Clair Circuit Court
KJL, LC No. 19-002521-PH
Respondent-Appellant.
Before: M. J. KELLY, P.J., and BOONSTRA and SWARTZLE, JJ.
PER CURIAM.
Petitioner sought a personal protection order (PPO) against three individuals whom he
alleged were acting in concert to harass and intimidate him. Specifically, he alleged that
respondent, SCM, and another individual, JF, posed as process servers in order to obtain video
footage of his residence, which they then gave to respondent KJL, who posted it on Facebook in
order to incite others to commit violence against him. Following an evidentiary hearing, the trial
court granted petitioner a PPO against SCM and KJL.1 In these consolidated appeals, they jointly
1
The trial court did not grant petitioner’s request for a PPO against JF.
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appeal that decision as of right. Because the trial court did not abuse its discretion in granting
petitioner a PPO against SCM and KJL, we affirm the court’s decision in both cases.
I. BASIC FACTS
On October 28, 2019, petitioner filed a petition seeking entry of a PPO against SCM, KJL,
and JF. Initially, the court granted the petition and entered PPOs against the respondents; however,
the court subsequently rescinded its order because petitioner had failed to serve notice to
respondents. Thereafter, the court held an evidentiary hearing to determine whether or not to grant
the petition for a PPO. The hearing was held over two days. KJL, who was representing himself,
appeared via Zoom technology at the first hearing. However, between the first hearing and the
second, several warrants for KJL’s arrest were issued. The court explained that it had a policy that
prohibited virtual appearances by individuals with outstanding warrants. As a result, the court
prohibited him from appearing via Zoom. The court offered KJL the opportunity to appear in
person or to surrender to law enforcement and appear virtually. KJL did not avail himself of that
opportunity. Consequently, in addition to prohibiting the appearance via Zoom, the trial court
entered a default against KJL.
At the evidentiary hearing, petitioner, who was representing himself pro se, testified that
SCM and JF had visited his property four times as process servers for KJL. He explained that they
had filmed him and his residence each time, and that KJL posted the videos on Facebook to
encourage others to harass him. He gave them permission to record the first time because they
were “court” process servers. On a later occasion, he asked them the purpose of recording his
residence; FJ told him that the purpose was to show that the subpoena was actually served upon
petitioner. On the final occasion, he prohibited them from recording, but they did so anyway.
Petitioner testified that shortly after each visit, the video footage that they recorded was
posted online by KJL. In support, he submitted screenshots that he testified had been taken from
video footage posted on Facebook by KJL. One screenshot appears to depict a person on the roof
of a shack. Petitioner testified that he was the person in the screenshot and that the only time that
he was on the roof of the shack was on the last day that FJ and SCM had come to serve him with
a subpoena. In a written post accompanying the video, KJL appears to have written “[Petitioner]’s
new shack has been located and documented on [RM]’s property.” He included a screenshot of
the sex offender registry depicting petitioner, and in response to comments, he clarified that
petitioner had built a “new” shack “in the woods.” He added that the new shack was “newer and
nicer . . . complete with a bay window, storm door, and wood stove” and that petitioner “also has
a motion detector on a pole and an elevated gun blind.” In a comment, someone asked if a picture
of the new shack could be obtained; KJL responded “[t]here is video.”
Petitioner testified that after the video was posted, he heard gunshots in the area around
him. He described the gunshots as being from multiple individuals who seemed to have circled
his location. He described the gunshots as sequential, with one person firing after another and
with each person firing approximately eight times. He stressed that he was familiar with gunshots
during deer hunting season and that this gunfire was different. He testified that he was afraid
because of the actions of KJL, SCM, and FJ. He added that he believed that the three men were
working together to harass him. He also stated that the first time that SCM served process, SCM
asked him who KJL was despite the fact that SCM was KJL’s stepfather.
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Following evidentiary hearings, the trial court granted petitioner’s requests for PPOs
against KJL and SCM. The trial court concluded that the process-serving activity was pretext to
gain information about petitioner, which SCM provided to KJL so that KJL could post the
information online in an effort to encourage others to harass petitioner. The trial court determined
that KJL and SCM had engaged in stalking, in violation of MCL 750.411h, and electronic stalking,
in violation of MCL 750.411s, each of which may serve as the basis upon which to issue a PPO
under MCL 600.2950a(1). This appeal follows.
II. ENTRY OF DEFAULT AGAINST KJL
A. STANDARD OF REVIEW
KJL argues that the trial court abused its discretion by entering a default PPO against him.2
This Court reviews for an abuse of discretion a trial court’s decision to default a party. Barclay v
Crown Bldg & Dev, Inc, 241 Mich App 639, 651; 617 NW2d 373 (2000). A trial court abuses its
discretion when it chooses an outcome outside the range of reasonable and principled outcomes.
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
B. ANALYSIS
KJL first argues that the trial court was required to allow him to appear via Zoom because
at the time of the second evidentiary hearing virtual appearances were both permitted and required
by the Michigan Supreme Court. In support, he directs this Court to Administrative Order
No. 2020-6, 505 Mich xc (2020). While in effect, the order required “all judges in Michigan . . .
to make a good faith effort to conduct proceedings remotely whenever possible.” Id. at xcii.
Contrary to KJL’s argument on appeal, the plain language of the Administrative Order did not
mandate that the trial court permit a virtual appearance. Rather, the court was only required to
make a good-faith effort to conduct proceedings remotely “whenever possible.” The order,
therefore, left the court with discretion to conduct proceedings remotely. Here, the trial court had
a policy that it would not allow virtual appearances for people with outstanding warrants. Thus,
under the court’s policy, because KJL had multiple outstanding warrants, it was not possible for
2
In his brief on appeal, KJL assumes that a default is an available remedy in the PPO context. He
also suggests, however, that it is “not clear” that it is an available remedy, but he offers no analysis
in support of that assertion. “It is not enough for an appellant in his brief simply to announce a
position or assert an error and then leave it up to this Court to discover and rationalize the basis
for his claims, or unravel and elaborate for him his arguments, and then search for authority either
to sustain or reject his position.” Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
Accordingly, to the extent that KJL is arguing that a default is not an available remedy in the PPO
context, that argument is abandoned by his failure to adequately brief the issue. Thus, for purposes
of this opinion, we assume arguendo that a trial court may enter a default against a respondent in
a PPO proceeding.
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him to appear remotely. We conclude that under the present circumstances, the trial court’s
decision to deny the remote appearance was not in violation of AO 2020-6.
The trial court stated that its default entered against KJL was “due to his failure to defend.”
MCR 2.603(A) authorizes the court to enter the default of a defendant who fails to “plead or
otherwise defend” in an action. Kowalski v Fiutowski, 247 Mich App 156, 163; 635 NW2d 502(2001). A default prevents a party from defending against well-pleaded allegations. Kalamazoo
Oil Co v Boerman, 242 Mich App 75, 79; 618 NW2d 66 (2000). Michigan courts generally favor
the determinations of issues on their merits. Id. at 86. “Default is a drastic measure and should be
used with caution.” Traxler v Ford Motor Co, 227 Mich App 276, 286; 576 NW2d 398 (1998).
On appeal, KJL next argues that the entry of a default was improper because the trial court
did not evaluate other available options. In support, he directs this Court to Vicencio v Ramirez,
211 Mich App 501, 506; 536 NW2d 280 (1995), which provides that before entering a default as
a sanction, “the trial court is required to carefully evaluate all available options on the record and
conclude that the sanction is just and proper.” The failure to do so can constitute an abuse of
discretion. Id. at 506-507. The trial court did not enter the default in this case as a sanction,
however. Instead, as noted above, it entered it based upon KJL’s failure to defend. Moreover,
even if it were entered as a sanction, the record reflects that the court considered less drastic
options. Specifically, the court advised KJL that he had the option of appearing in person or
surrendering to the police on his warrants and appearing virtually from jail. Therefore, the trial
court did discuss alternatives to default.
In sum, the trial court did not abuse its discretion by prohibiting KJL from appearing
virtually while he had outstanding warrants. Further, because the default was not entered as a
sanction and was instead entered based upon KJL’s failure to defend, the court was not required
to discuss alternative, less drastic sanctions on the record before entering the default.
III. NON-DOMESTIC PPO
A. STANDARD OF REVIEW
SCM argues that the trial court abused its discretion by granting petitioner’s request for a
PPO against him. This Court reviews for an abuse of discretion a trial court’s decision regarding
whether to issue a PPO. TT v KL, 334 Mich App 413, 438; 965 NW2d 101 (2020). The court’s
findings of fact are reviewed for clear error. Id.B. ANALYSIS
The purpose of PPOs is to protect individuals “who are maliciously followed, harassed, or
intimidated by stalkers.” Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 721;
691 NW2d 1 (2005). A petition for a PPO is governed by the court rules except as otherwise
provided in MCL 600.2950 and MCL 600.2950a. TT, 334 Mich App at 439. MCL 600.2950a is
the nondomestic PPO statute, which “addresses stalking behavior or conduct that is not limited to
certain existing relationships.” Id. MCL 600.2950a(1) provides as follows:
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Except as provided in subsections (27), (28), and (30), by commencing an
independent action to obtain relief under this section, by joining a claim to an
action, or by filing a motion in an action in which the petitioner and the individual
to be restrained or enjoined are parties, an individual may petition the family
division of circuit court to enter a personal protection order to restrain or enjoin an
individual from engaging in conduct that is prohibited under section 411h, 411i, or
411s of the Michigan penal code. A court shall not grant relief under this subsection
unless the petition alleges facts that constitute stalking as defined in section 411h
or 411i, or conduct that is prohibited under section 411s, of the Michigan penal
code. Relief may be sought and granted under this subsection whether or not the
individual to be restrained or enjoined has been charged or convicted under section
411h, 411i, or 411s of the Michigan penal code for the alleged violation. [Citations
omitted.]
MCL 750.411h concerns stalking, MCL 750.411i pertains to aggravated stalking, and MCL
750.411s covers online stalking.
In this case, the trial court determined that SCM’s behavior of filming petitioner’s
residence and curtilage while serving a subpoena, and providing the video to KJL, violated both
the stalking and online-stalking statutes. According to MCL 750.411h(1)(d), “stalking” is “a
willful course of conduct involving repeated or continuing harassment of another individual that
would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed,
or molested.” MCL 750.411h(1)(c) defines “harassment,” in relevant part, as “conduct directed
toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that
would cause a reasonable individual to suffer emotional distress and that actually causes the victim
to suffer emotional distress.” MCL 750.411h(1)(e) defines “unconsented contact” as “any contact
with another individual that is initiated or continued without that individual’s consent or in
disregard of that individual’s expressed desire that the contact be avoided or discontinued.”
On appeal, SCM argues that the petition failed to allege that he engaged in two or more
separate noncontinuous acts. The intentional “course of conduct” required for stalking by MCL
750.411h(1)(d) “means a pattern of conduct composed of a series of 2 or more separate
noncontinuous acts evidencing a continuity of purpose.” MCL 750.411h(1)(a). SCM’s argument
is without merit. The petition against SCM alleges that (1) SCM, while acting on behalf of his
stepson KJL, delivered multiple subpoenas to petitioner, (2) that each time he was posing as a
process server SCM video recorded details of petitioner’s current and prior residence, and (3) he
provided the video footage to KJL to post online so that petitioner would be harassed and
intimidated. During the hearing that followed, petitioner testified that there were four instances of
such conduct on SCM’s part. Petitioner thus alleged an intentional course of conduct consisting
of four separate noncontinuous events.
SCM next contends that the trial court improperly shifted the burden to SCM to disprove
petitioner’s allegations that SCM was acting in concert with KJL to publish details of petitioner’s
residence online in order to incite harassment against petitioner. The individual petitioning the
trial court for a PPO bears the burden of proof. TT, 334 Mich App at 439. In support of this claim,
SCM cites the following part of the trial court’s opinion:
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Petitioner testified that he believed the service of process was pretextual,
that [SCM] and [JF] were on [the subject] property simply to get information about
his new residence to provide it to [KJL]. In support of his assertion, petitioner
points to a number of different facts. Petitioner was never actually called to testify
by [KJL] at any of the hearings to which he was subpoenaed. No copies of the
subpoenas served on petitioner or a proof of service showing the circumstances of
service were admitted into evidence. [SCM] and [JF] both testified they did not
know what they had served on petitioner. They did not keep copies of the
documents they served, their proofs of service, or of the videos [SCM] took. Absent
any evidence to the contrary, the record supports petitioner’s assertion.
SCM argues that the trial court’s statement, “Absent any evidence to the contrary,” implied that
SCM had the burden to disprove the allegations in the petition. Viewed in context, however, it is
clear that the court’s statement was only an indication that the evidence presented by petitioner in
support of his claim was unrebutted. The court did not improperly shift the burden.
Next, SCM argues that the trial court erred by concluding that he violated the stalking
statute, MCL 750.411h(1)(d) because harassment does not include “conduct that serves a
legitimate purpose.” MCL 750.411h(1)(c). Conduct that serves a legitimate purpose is “conduct
that contributes to a valid purpose that would otherwise be within the law irrespective of the
criminal stalking statute.” Nastal, 471 Mich at 723. In support, SCM directs this Court to his
testimony that he had served legal documents 15 to 30 times, half of which were for KJL; that he
had served petitioner with four subpoenas; and that it was his custom to video-record the service
of documents to prevent allegations of failed service. FJ’s testimony corroborated his statements.
Thus, there was clearly evidence that would support a finding that he was engaged in conduct that
serves a legitimate purpose.
Yet, the court found that “the conduct which serves as the basis for issuance of the PPO is
not the service of whatever documents were served, it is the other actions taken by [SCM] while
doing so.” At respondents’ request, the trial court took judicial notice of earlier proceedings
involving KJL and petitioner. In earlier proceedings, SCM testified as a witness on behalf of KJL.
Thus, he was aware that the court had issued a PPO against KJL in August 2018 because KJL was
harassing petitioner and the owners of the property where petitioner resided. In that case, the court
found that KJL had engaged in stalking by trespassing on the property, posting disparaging
messages about petitioner on social media, and permitting comments threatening to petitioner on
the posts, with the “obvious intent” that the messages would “cause conduct that would make
petitioner feel threatened or intimidated.” When petitioner alleged that KJL violated the earlier
PPO, SCM appeared as a witness on behalf of KJL. The court did not find credible SCM’s
testimony that petitioner, rather than KJL, was the aggressor who initiated the contact that resulted
in a finding that KJL violated the earlier PPO. The trial court also relied upon testimony in a prior
proceeding showing that SCM had aided KJL in posting material online that was related to the
earlier PPO proceedings. Moreover, as noted above, SCM was KJL’s stepfather.
In weighing whether to issue a PPO, a trial court should “take into consideration the totality
of the circumstances.” Patterson v Beverwyk, 320 Mich App 670; 922 NW2d 904, 913 (2017).
The “pattern of conduct between and involving the parties . . . had to be examined in its entirety,”
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because past events, including those from a previous petition, “could give explanation or context
to the [current] incident by providing insight on intent, continuity of purpose, the reasonableness
of beliefs, and states of mind or feelings.” PF v JF, 336 Mich App 118, 128-129; 969 NW2d 805(2021). In determining whether a PPO is necessary, a trial court may consider the petition along
with “testimony, documents, and other evidence proffered.” Lamkin v Engram, 295 Mich App
701, 711; 815 NW2d 793 (2012). Evidence that KJL had a history of harassing, and inciting threats
against, petitioner by posting information about him on the Internet supported the conclusion that
the SCM took the videos, and provided them to KJL, for the purpose of harassing petitioner, rather
than documenting service of a subpoena.3
Moreover, petitioner testified that SCM’s service of subpoenas was not a genuine effort to
secure his appearance at hearings, given that there was no evidence of proof of service filed with
a trial court, and that KJL had him excused from hearings for which he was subpoenaed. Petitioner
explained that, when he was served subpoenas in other matters, deputies would serve him at the
main house on the property. Petitioner additionally testified that he noticed that KJL posted videos
of his property near in time to each of SCM’s visits to the property, including details that existed
only on the day of service, such as that he was on the roof. One video included details of an area
where petitioner relocated his residence, including a hunting tree stand, and an alarm system.
Petitioner further testified that SCM had asked him who KJL was, despite SCM’s relationship to
KJL as his stepfather, and that SCM denied knowing KJL. Petitioner unsuccessfully asked SCM
to stop filming after he discovered that SCM was related to KJL.
In sum, SCM’s videos captured more than service of process upon petitioner for
appearances not actually required of him, and the videos were quickly relayed to KJL who
published them online to further a campaign of harassment that had previously resulted in a PPO
against KJL. This evidence supported the trial court’s conclusion that SCM’s service or subpoenas
upon petitioner for KJL was pretextual and actually used to gain information about petitioner’s
residence. Accordingly, the trial court did not abuse its discretion by determining that SCM’s
visits to petitioner’s residence did not constitute “conduct that serves a legitimate purpose.”4
Finally, SCM argues that the trial court erred by wrongfully denying him the presence of a
key witness. In the proceedings below, SCM’s lawyer objected to KJL’s exclusion from the
hearing. He indicated that he had intended to call KJL as a witness. The court offered to issue a
subpoena compelling KJL’s appearance at the hearing, but the lawyer did not avail himself of that
3
We note that, by itself, there is nothing improper with a process server recording his or her service
of documents on an individual. Rather, it is the additional facts and circumstances of this case that
allows for an inference that otherwise legitimate conduct can allow for an inference sufficient to
warrant the issuance of a PPO.
4
The trial court also concluded that SCM violated MCL 750.411s by aiding and abetting KJL in
the matter, citing MCL 767.39. SCM argues that, for purposes of this civil action, criminal
violation of MCL 750.411s by way of aiding and abetting another does not justify a PPO. Because
the trial court’s finding that SCM violated MCL 750.411h itself justified the PPO against him, see
MCL 600.2950a(1), we need not decide whether the court erred by concluding that violation of
MCL 750.411s as an aider and abettor also justified the PPO.
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opportunity. Instead, he made an offer of proof as to what KJL testimony would have been if he
had been permitted to appear via Zoom. Given that the trial court presented him with an
opportunity to secure KJL’s testimony, we discern no error related to the court’s refusal to allow
KJL to testify via Zoom.
Affirmed.
/s/ Michael J. Kelly
/s/ Mark T. Boonstra
/s/ Brock A. Swartzle
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