Ck v. Am ( 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
CK, UNPUBLISHED
June 22, 2023
Petitioner-Appellee,
v No. 362000
Oakland Circuit Court
AM, LC No. 2022-512051-PP
Respondent-Appellant.
Before: MARKEY, P.J., and JANSEN and K. F. KELLY, JJ.
PER CURIAM.
Respondent appeals by right the trial court’s order denying respondent’s motion to
terminate an ex parte domestic relationship personal protection order (“PPO”) obtained by
petitioner. Finding no errors warranting reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Petitioner and respondent were neighbors in Royal Oak, Michigan. Petitioner and
respondent first went on a date in August 2018, and the nature of the relationship between the
parties following the date is disputed. Petitioner advanced that he maintained a sexual relationship
with respondent following their first date, and “hooked up a few times,” but things came to a halt
after respondent filed a complaint with the Royal Oak police department, which accused petitioner
of sexual assault. Respondent purported that following her date with petitioner, he and respondent
engaged in sexual intercourse, which respondent was pressured into because of her fear concerning
petitioner’s violent nature. Respondent maintained that she did not go on another date with
petitioner, and only maintained a “friendly” relationship with petitioner before petitioner began
stalking her.
Between November 2021 and January 2022, respondent filed two ex parte domestic
relationship PPO petitions against petitioner in the Oakland Circuit Court, which were
subsequently denied, and one ex parte domestic relationship PPO petition against petitioner in the
Macomb Circuit Court, which was initially granted without a hearing, but subsequently terminated.
The fundamental allegations in each of the petitions was that (1) petitioner and respondent were
previously in a dating relationship, (2) petitioner sexually assaulted respondent following their
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date in August 2018, and (3) after respondent allegedly informed petitioner that she did not want
to have sex with him, petitioner subsequently became angry with respondent, and proceeded to
stalk respondent approximately four years later as an act of revenge. In the verified statement
accompanying the petition filed in the Macomb Circuit Court, respondent specifically asserted that
petitioner was her ex-boyfriend, the parties dated for a few months in the summer of 2018, and
their relationship ended in September 2018. Moreover, between October 2021 and February 2022,
respondent filed several police reports detailing suspicions of stalking and surveillance, which
primarily listed petitioner as the suspect in the following Michigan cities: Royal Oak, Saginaw,
Centerline, and Bloomfield Hills.
In March 2022, petitioner filed a petition for an ex parte domestic relationship PPO in the
Oakland Circuit Court contending that (1) petitioner and respondent had a dating relationship, (2)
respondent repeatedly filed numerous false police reports against petitioner, (3) respondent
previously filed a domestic relationship PPO petition in the Oakland Circuit Court which was
denied, (4) respondent subsequently filed a domestic relationship PPO in Macomb Circuit Court,
which was terminated on March 7, 2022, and (5) respondent contacted petitioner several times via
text messages. The trial court granted the ex parte domestic relationship PPO against respondent,
which prohibited respondent from “[p]osting a message through the use of any medium of
communication, including the internet or a computer or any electronic medium, pursuant to MCL
750.411s.” The issued PPO further barred respondent from (1) entering onto property where
petitioner lives, (2) following or approaching petitioner in a public place or on private property,
(3) delivering an object to petitioner’s property, (4) threatening to kill or physically injure
petitioner, and (5) intentionally causing petitioner mental distress or exerting control over
petitioner by harming, removing, or obtaining an animal in which petitioner has an ownership
interest.
Respondent subsequently moved to terminate the PPO, in which she broadly denied
petitioner’s allegations and argued that petitioner began stalking respondent in the summer of
2021. In the motion, respondent detailed several instances of surveillance and stalking,
purportedly by petitioner, which she attempted to support with the numerous police complaints
filed by her in various Michigan cities. Following a hearing on respondent’s motion to terminate
the PPO, the trial court concluded that petitioner demonstrated his continued need for the PPO
against respondent and reiterated that respondent could not contact petitioner through any medium
or form of communication.
Respondent moved for reconsideration, arguing that she failed to articulate that (1) the
parties were not involved in a dating relationship as defined under MCL 600.2950, and (2) a PPO
could not be issued based upon a claim that false police reports had been made because filing a
police report based on suspicions of being stalked served a legitimate purpose under MCL
750.411h(l)(c). Respondent advanced that petitioner falsely alleged that “[r]espondent was
making false police reports about him to various police agencies and used the fact that [r]espondent
was having him investigated for stalking to ‘flip the script’ so that she became the stalker when
she was really asking the police for help.”
The trial court denied respondent’s motion for reconsideration. The trial court stated that,
despite respondent’s alleged oral argument deficiencies at the prior motion hearing, it did not find
either party unable to appropriately convey their arguments or unable to “develop the record
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precisely to the degree they intended.” The trial court also recognized that it had the discretion on
a motion for reconsideration to decline to consider new legal theories which could have been
presented when the motion was initially decided. The trial court expressed that respondent’s
instant motion did not provide any reason why respondent was otherwise prohibited from
advancing her arguments at the original hearing, and the trial court declined to consider the new
assertions upon reconsideration. The trial court concluded that it did not palpably err in denying
respondent’s motion to terminate the PPO and denied respondent’s motion for reconsideration,
and noted the PPO remained in effect until March 10, 2023.1
II. STANDARDS OF REVIEW
As both issues on appeal were raised for the first time in respondent’s motion for
reconsideration, neither issue is properly preserved for appellate review. Dep’t of Environmental
Quality v Morley, 314 Mich App 306, 316; 885 NW2d 892 (2015). “This Court reviews
unpreserved claims of error in civil cases for plain error affecting substantial rights.” Ayotte v
Dept of Health & Human Servs, 337 Mich App 29, 40; 972 NW2d 282 (2021). “To avoid forfeiture
under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the
error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” Demski v
Petlick, 309 Mich App 404, 427; 873 NW2d 596 (2015) (quotation marks and citation omitted).
“Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of
the proceedings.” In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008).
III. ANALYSIS
A. EXISTENCE OF A DATING RELATIONSHIP
Respondent argues that the trial court erred when it denied respondent’s motion to
terminate the PPO under MCL 600.2950 because the great weight of the evidence did not establish
the existence of a “dating relationship” between the parties. Because respondent is judicially
estopped from advancing this argument, we disagree.
MCL 600.2950 governs PPOs involving current or former spouses, individuals in dating
relationships, and housemates, while MCL 600.2950a, the nondomestic PPO statute, addresses
stalking behavior or conduct that is not limited to certain existing relationships. TT v KL, 334
Mich App 413, 439; 965 NW2d 101 (2020). MCL 600.2950(1) states, in part:
1
While the PPO at issue has expired during the pendency of this appeal, the appeal is not
necessarily moot because “identifying an improperly issued PPO as rescinded is a live controversy
and thus not moot.” TM v MZ, 501 Mich 312, 319; 916 NW2d 473 (2018). This is because “[a]
judgment here can have a ‘practical legal effect’ under [Anway v Grand Rapids R Co, 211 Mich
592; 179 NW 350 (1920),] because if the Court concludes that the trial court should never have
issued the PPO, respondent would be entitled to have LEIN reflect that fact.” Id. “Thus, an appeal
challenging a PPO, with an eye toward determining whether a PPO should be updated in LEIN as
rescinded, need not fall within an exception to the mootness doctrine to warrant appellate review;
instead, such a dispute is simply not moot.” Id. at 319-320.
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[B]y commencing an independent action to obtain relief under this section, . . . an
individual may petition the family division of circuit court to enter a personal
protection order to restrain or enjoin a spouse, a former spouse, an individual with
whom he or she has had a child in common, an individual with whom he or she has
or has had a dating relationship, or an individual residing or having resided in the
same household as the petitioner . . . . [Emphasis added.]
MCL 600.2950(30)(a) defines “dating relationship” as “frequent, intimate associations primarily
characterized by the expectation of affectional involvement.” The statute further states that a
dating relationship does not include “a casual relationship or an ordinary fraternization between 2
individuals in a business or social context.” MCL 600.2950(30)(a).
While respondent maintains that a dating relationship did not exist between petitioner and
respondent because the frequency of contact and the intent of the parties did not demonstrate a
mutual expectation of ongoing, affectional involvement, respondent is judicially estopped from
advancing this argument when considering her previous filings in the Macomb Circuit Court.
Judicial estoppel is an equitable doctrine that generally bars a party from prevailing in one phase
of a case on an argument and subsequently relying on a contradictory argument to prevail in
another phase. Spohn v Van Dyke Pub Sch, 296 Mich App 470, 479; 822 NW2d 239 (2012).
Michigan follows the “prior success model” of judicial estoppel, which states that “a party who
has successfully and unequivocally asserted a position in a prior proceeding is estopped from
asserting an inconsistent position in a subsequent proceeding.” Id. (quotation marks and citation
omitted). “[T]he mere assertion of inconsistent positions is not sufficient to invoke estoppel;
rather, there must be some indication that the court in the earlier proceeding accepted that party’s
position as true.” Id. (quotation marks and citation omitted). The prior success model, however,
does not require that the estopped party must have prevailed on the merits. Id.In Spohn, this Court explained:
The doctrine of judicial estoppel is driven by the important motive of promoting
truthfulness and fair dealing in court proceedings. Judicial estoppel differs from
such other forms of estoppel as promissory estoppel and equitable estoppel in that
judicial estoppel focuses on the relationship between the litigant and the judicial
system as a whole, rather than solely on the relationship between the parties. Of
utmost importance in determining whether to apply the doctrine of judicial estoppel
is whether the party seeking to assert an inconsistent position would derive an unfair
advantage if not estopped. [Spohn, 296 Mich App at 489 (quotation marks and
citation omitted).]
Consequently, the ultimate purpose of judicial estoppel “is to protect the judicial process,
not the parties.” Id. The doctrine was further developed to prevent parties from playing “fast and
loose” with the legal system. Wells Fargo Bank, NA v Null, 304 Mich App 508, 537; 847 NW2d
657 (2014). Courts apply judicial estoppel to prevent a party “from abusing the judicial process
through cynical gamesmanship, achieving success on one position, then arguing the opposing
[position] to suit an exigency of the moment.” Opland v Kiesgan, 234 Mich App 352, 364; 594
NW2d 505 (1999) (quotation marks and citations omitted). Moreover, the doctrine “is intended
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to protect the courts from being manipulated by chameleonic litigants who seek to prevail, twice,
on opposite theories.” Id. (quotation marks and citation omitted).
Respondent successfully and unequivocally asserted the existence of a previous dating
relationship between respondent and petitioner in the ex parte domestic relationship PPO petition
filed in the Macomb Circuit Court. In the verified statement accompanying that petition,
respondent asserted that petitioner was her ex-boyfriend, the parties dated for a few months in the
summer of 2018, and their relationship ended in September 2018. The verified statement
contained the following statement directly above the signature line:
VERIFCIATION [SIC] UNDER MCR 2.114(2)(8): I DECLARE THE
STATEMENTS ABOVE ARE TRUE TO THE BEST OF MY INFORMATION,
KNOWLEDGE AND BELIEF. An individual who knowingly and intentionally
makes a false statement to the court in support of her or his petition for a personal
protection order is subject to the contempt powers of the court. MCLA
600.2950(24); 600.2950a(21).
The Macomb Circuit Court subsequently granted the petition without a hearing and issued
the PPO against petitioner. Moreover, respondent asserted that a dating relationship existed
between the parties in previously filed police reports, in addition to the prior domestic relationship
PPO petitions filed in the Oakland Circuit Court. These circumstances are similar to Spohn, where
the defendant sought to apply judicial estoppel on the basis of statements the plaintiff had made in
the plaintiff’s previous bankruptcy proceeding. Spohn, 296 Mich App at 482-483. The plaintiff
failed to disclose the existence of a workplace sexual harassment claim against the defendant to
the bankruptcy court, and after the dismissal of the bankruptcy case, the plaintiff pursued the sexual
harassment lawsuit against the defendant. Id. This Court concluded that judicial estoppel barred
the plaintiff’s claim because of her prior, inconsistent assertion to the bankruptcy court—while
under oath—that she had no potential causes of action. Id. In this case, respondent asserted in the
verified statement attached to the domestic relationship petition in the Macomb Circuit Court that
she and petitioner were previously in a dating relationship and the Macomb Circuit Court issued a
PPO in response. While the PPO was later terminated, the Macomb Circuit Court necessarily
relied on the existence of a dating relationship to issue the PPO because a domestic relationship
PPO is only applicable in cases involving “a spouse, a former spouse, an individual with whom he
or she has had a child in common, an individual with whom he or she has or has had a dating
relationship, or an individual residing or having resided in the same household as the
petitioner . . . .” MCL 600.2950(1). None of the other enumerated relationships, other than a
“dating relationship,” are applicable.
Allowing respondent to proceed with the wholly inconsistent assertion that a dating
relationship did not exist between herself and petitioner presents a danger of inconsistent rulings,
because a requisite of filing a domestic relationship PPO petition, as mentioned earlier, is the
existence of a marriage, cohabitation, coparenting, or a previous dating relationship between the
parties. See Wolverine Power Coop v Dep’t of Environmental Quality, 285 Mich App 548, 566;
777 NW2d 1 (2009) (stating “[j]udicial estoppel is an equitable doctrine that the Court may raise
to preclude inconsistent judicial rulings”). Moreover, respondent would potentially prevail twice,
on opposite theories, because the Macomb Circuit Court first issued the domestic relationship PPO
under the premise a dating relationship existed between the two parties, and respondent would
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have then succeeded in the instant case if the trial court terminated the PPO finding that there was
no dating relationship. While the two petitions in the Oakland Circuit Court would not be
considered “successful” under the judicial estoppel doctrine, those petitions, in addition to the filed
police reports, indicate that respondent was attempting to create a narrative concerning the
relationship between herself and petitioner. Therefore, under the doctrine of judicial estoppel,
respondent is barred from presenting the inconsistent argument that no dating relationship existed
between the parties on appeal.
B. POLICE REPORTS
Respondent also contends that the trial court erred when it ordered respondent to refrain
from filing police reports against petitioner because the court’s power to enjoin a person from
engaging in conduct that constitutes stalking under MCL 750.411h and MCL 750.411i did not
extend to constitutionally protected activities that served a legitimate purpose other than
harassment of a protected person. We disagree.
“[A] court speaks through its written orders and judgments, not through its oral
pronouncements.” In re Contempt of Henry, 282 Mich App 656, 678; 765 NW2d 44 (2009). There
is no language in the PPO issued against respondent that prohibits her from filing police reports
concerning petitioner, nor is it noted in the trial court’s order denying respondent’s motion for
reconsideration. The PPO generally prohibited respondent from engaging in conduct which
constituted stalking as defined under MCL 750.411h and MCL 750.411i, such as (1) entering onto
property where petitioner lives, (2) following or approaching petitioner in a public place or on
private property, (3) delivering an object to petitioner’s property, (4) threatening to kill or
physically injure petitioner, and (5) intentionally causing petitioner mental distress or exerting
control over petitioner by harming, removing, or obtaining an animal in which petitioner has an
ownership interest. None of the items in the PPO preclude respondent from filing police reports,
rather, the PPO is geared toward ceasing communication and contact with petitioner.2
Affirmed.
/s/ Jane E. Markey
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
2
Respondent also contends that the trial court abused its discretion when it refused to consider her
new arguments raised in her motion for reconsideration. However, as we have repeatedly stated,
a trial court does not abuse its discretion by “denying a motion resting on a legal theory and facts
which could have been pled or argued prior to the trial court’s original order.” Woods v SLB Prop
Mgt, LLC, 277 Mich App 622, 630; 750 NW2d 228 (2008).
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