PPO Properly Terminated After Plaintiff Did Not Show At Zoom Court Hearing

The trial court properly granted the defendant’s motion to terminate a personal protection order issued against him, the Michigan Court of Appeals has ruled, even though the plaintiff claimed she was not given the opportunity to be heard via the trial court’s schedule Zoom hearing.

The plaintiff in DEW v JM III (Docket No. 36742) had obtained an ex parte personal protection order (PPO) against the defendant for stalking, pursuant to MCL 750.411h and MCL 750.411i. Shortly after, the defendant filed a motion to terminate the PPO claiming that he “did not commit the alleged actions.” The plaintiff was then served an “Electronic Hearing Notice” (the Notice) and the defendant’s motion was attached to the Notice. The Notice informed the plaintiff that a hearing would be held via Zoom on August 3, 2023, at 10:45 a.m. before “Docket Judge PPO.” Detailed instructions for entering the online Zoom hearing were provided. On the day of the hearing, the defendant and his attorney appeared via Zoom. However, the plaintiff did not appear, nor did any attorney representing her. Accordingly, the Wayne County Circuit Court, without taking any testimony or evidence, granted the defendant’s motion and terminated the PPO.

The plaintiff appealed, arguing the trial court wrongly terminated the PPO because the procedures in the Notice she was given were “ambiguous, unclear and confusing to the point that they violated [her] due-process right to be heard.”

The Court of Appeals affirmed the trial court’s decision, finding it had “no remedy” to offer the plaintiff because there was no evidence “on the record” that the trial court and its staff committed reversible error or negligence.

“Therefore, this Court has no basis to reverse the trial court’s order or order the trial court to hold another hearing or change or vacate its prior order, and we conclude the trial court did not abuse its discretion when it granted [the defendant’s] motion,” the Court of Appeals said, pointing out the plaintiff may file a new PPO petition “assuming there is still a basis to do so.”

Judge Mark J. Cavanagh, Judge Kirsten Frank Kelly and Judge Michelle M. Rick were on the appellate panel that issued the unpublished opinion.

Plaintiff’s Verified Statement 

In the plaintiff’s verified statement included with her appeal, she asserted that she followed the instructions on the Notice the trial court had provided her.

The plaintiff stated that she “logged into [her] corresponding Judge’s” waiting room at 10:30 a.m. on August 3, 2023, logged into the PPO Zoom hearing and waited until approximately 11:20 a.m. when, “consistent with the ‘Procedure’ provided in the PPO hearing notice,” she sent an e-mail (dated August 3, 2023, at 11:21 a.m.) to PPO@3rdcc.org. That email said: “I have a hearing that is scheduled in case number 23-105990-PH. The hearing is scheduled for 10:45 a.m. I have been in queue since approximately 10:30 this morning. The Judge’s courtroom says that we are waiting for the host to start the meeting. It is now 11:20ish, should I be alarmed?”

The plaintiff stated that when she did not receive a response to her e-mail, she called the telephone number provided in the Notice, spoke with “Ms. Z” at the PPO office and “explained her concern” about her inability to join the Zoom hearing. The plaintiff stated that Ms. Z told her “the PPO court was running behind schedule, the PPO office was preparing to respond to her e-mail request for assistance and that she was not the only person to call about the wait time.” According to the plaintiff, Ms. Z said the court “was like a doctor’s office; if the doctor runs overtime with one patient, all patients are pushed back.” The plaintiff claimed that, after her conversation with Ms. Z, she continued to wait and eventually left the Zoom waiting room at 4:45 p.m.

The plaintiff further stated that on August 4, 2023, she telephoned the court, again spoke with Ms. Z and told Ms. Z that she had never been brought into the Zoom hearing. According to the plaintiff, “Ms. Z acknowledged that she had spoken with [the plaintiff] the day before and understood the situation that had occurred the previous day.” Thereafter, the plaintiff stated that she called “Ms. Jones,” the court clerk. The plaintiff stated that Ms. Jones told her “this does happen occasionally. It’s like houses on the same block but you are knocking on the door down the street and we’re at the other corner.” The plaintiff stated that Ms. Jones recommended that she “refile” her PPO and “see what the court wants to do at that time.” The plaintiff stated that Ms. Jones acknowledged that court staff should have “directed [the plaintiff] to where [she] needed to be.”

No Remedy Despite Court’s Alleged ‘Failure’

On appeal, the plaintiff argued the trial court abused its discretion when it terminated the PPO because the procedures in the Notice “were ambiguous, unclear, and confusing to the point that they violated [her] due-process right to be heard.” She contended that, despite following the requirements set forth in the Notice, she was not given the opportunity to be heard.

“The Notice informed [the plaintiff] of the time and location of the hearing that would be conducted on Zoom,” the Court of Appeals observed. “The Notice included detailed instructions that specified how and where to navigate on the Zoom website. The Notice also stated that failure to appear for the hearing could result in the trial court granting [the defendant’s] motion to terminate the PPO. [The plaintiff] did not appear in the court room for the hearing. [The plaintiff] presents no evidence, as part of the record or otherwise, that the trial court had information that [she] was waiting in the wrong Zoom waiting room.”

The Court of Appeals said that, in the end, it could not offer the plaintiff any remedy because it had no legal basis to reverse or vacate the trial court’s decision, or to order another hearing. “The issues that [the plaintiff] raises regarding violations of her right to due process, her failure to receive timely notice, the lack of personal jurisdiction, and the Notice being confusing and ambiguous, are all issues that cannot be raised for the first time on appeal. … There is no record evidence to support error or negligence by the trial court or its staff.”

Therefore, the Court of Appeals held the trial court did not abuse its discretion when it granted the defendant’s motion to terminate the PPO and advised the plaintiff that she could file a petition seeking a new PPO.

“Although we can offer no relief to [the plaintiff],” the Court of Appeals continued, “we pause to note … that if the allegations in [her] verified statement [are] true, it is clear that the court and its staff failed to ensure petitioner’s due-process rights were protected. Our courts have long recognized the ‘constitutional right of access to the courts, whereby a plaintiff with a nonfrivolous legal claim has the right to bring that claim to a court of law.’”

In conclusion, the Court of Appeals noted it had “little trouble presuming” that if the plaintiff had appeared “in person in court and had gone to the wrong courtroom, someone within the court building would have directed her to the correct courtroom without issue.”

The PPO docket in particular “was designed with pro se litigants in mind, so it should come as no surprise that litigants such as [the plaintiff] need additional help when appearing in court, especially by Zoom,” the Court of Appeals emphasized. “No one apparently asked [the plaintiff] which virtual courtroom she was waiting in or whether she needed assistance finding the correct one. The responses she did allegedly receive were misleading and not helpful. If what [the plaintiff] claims happened is true, such failure by the court and its staff is unacceptable. It is not, however, within this Court’s purview to make such determinations in the first instance, which squarely rests with the trial court.”