The trial court in this action involving a neighbor dispute properly issued a personal protection order (PPO) because sufficient evidence of stalking under MCL 750.411h was presented, the Michigan Court of Appeals has ruled.
In CMT v TOF (Docket No. 375082), the plaintiff and the defendant were neighbors. They had a long history of disputes, including some that involved police intervention. After numerous alleged incidents involving alleged unconsented contact, the plaintiff petitioned the Muskegon County Circuit Court for a non-domestic stalking PPO under MCL 600.2950a(1). In that petition, the plaintiff alleged the defendant, over the course of several years: 1) blew dirt and rocks onto the plaintiff’s vehicle; 2) fired a gun while yelling a racial slur at the plaintiff; 3) placed cement blocks in such a way that damaged the plaintiff’s trailer; 4) intentionally relocated garbage cans, moved ladders and repeatedly directed racial slurs at the plaintiff.
The Muskegon County trial court issued the PPO after hearing testimony and viewing a video of an incident that occurred on February 21, 2025. That decision was appealed and, on remand, the trial court denied the defendant’s motion for reconsideration. The trial court ruled the defendant had engaged in a willful course of repeated harassment that would cause – and actually caused – intimidation, harassment or terror.
The defendant appealed, challenging the trial court’s findings and the sufficiency of the evidence. He also asserted his speech was constitutionally protected.
The Court of Appeals disagreed and upheld the PPO.
In many of the incidents, the defendant “initiated the contact with” the plaintiff and the plaintiff responded by cursing and “not extending an invitation to chat further,” the Court of Appeals observed. In addition, “the trial court had the benefit of watching and hearing the video recording of th[e] [February 21, 2025] incident. On the record before us, we cannot conclude that the trial court clearly erred in determining that this contact was not consensual, was harassing, and caused emotional distress.”
Therefore, the trial court “did not abuse its discretion by issuing the PPO after a hearing because [the] PPO petition contained sufficient facts to establish [the defendant] engaged in stalking as defined in MCL 750.411h,” the Court of Appeals held.
Judge Michael F. Gadola, Judge Michael J. Riordan and Judge Anica Letica were on the panel that issued the 17-page unpublished opinion.
Applicable Statutes
In its analysis, the Court of Appeals first noted the applicable stalking statute was MCL 600.2950a(1) because it governs the issuance of PPOs in non-domestic situations.
The Court of Appeals then cited MCL 750.411h(1)(e), which defines “stalking” as “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 and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested. … (emphasis added).”
The Court of Appeals further noted that under MCL 750.411h(1):
“(a) ‘Course of conduct’ means a pattern of conduct composed of a series of 2 or more separate noncontinuous acts evidencing a continuity of purpose. …
(d) ‘Harassment’ means 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. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose.
…
(f) ‘Unconsented contact’ means 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. Unconsented contact includes, but is not limited to, any of the following: …
(i) Following or appearing within the sight of that individual.
(ii) Approaching or confronting that individual in a public place or on private property.
(iii) Appearing at that individual’s workplace or residence.
(iv) Entering onto or remaining on property owned, leased, or occupied by that individual.
…
(vii) Placing an object on, or delivering an object to, property owned, leased, or occupied by that individual. [Emphasis added.]”
Next, the Court of Appeals reviewed the adequacy of the trial court’s findings. The defendant argued the appeals court could not “adequately review the trial court’s decision to issue the PPO” because it “provided an insufficient factual basis for its ruling, resulting in a deficient” trial court record.
“We disagree,” the Court of Appeals stated, explaining that MCL 600.2950a(7) says, “If a court issues or refuses to issue a [PPO], the court shall immediately state in writing the specific reasons for issuing or refusing to issue the [PPO]. If a hearing is held, the court shall also immediately state on the record the specific reasons for issuing or refusing to issue a [PPO].”
Similarly, the Court of Appeals pointed out that MCR 3.705(B)(6) says, “At the conclusion of the hearing the court must state the reasons for granting or denying a [PPO] on the record and enter an appropriate order. In addition, the [trial] court must state the reasons for denying a [PPO] order in writing, and, in a proceeding under MCL 600.2950a, the court must state in writing the specific reasons for issuance of the order.”
Here, “the trial court held two hearings, resulting in a sufficient lower court record for appellate review,” the Court of Appeals observed. “At the first hearing, the trial court took testimony from both parties before it issued the PPO and explained its reasoning for doing so on the record, memorializing its oral ruling in a written order. The trial court also held a hearing on [the defendant’s] motion for reconsideration and subsequently entered a written order. Thus, [the defendant’s] requested relief – to remand this case to the trial court to allow it an opportunity to articulate the factual basis for its ruling to issue the PPO – has already occurred, and appellate review would not be furthered by remanding this case for a second time. Therefore, we turn to the merits of this appeal.”
‘Unconsented Contact’
The Court of Appeals continued by noting the defendant asserted the trial court wrongly granted the PPO because “insufficient facts were set forth in the petition to establish that he engaged in stalking.”
The defendant “contends that the incidents included in the petition did not involve unconsented contact, that [the plaintiff] failed to establish that the incidents would cause a reasonable person to suffer emotional distress and actually caused [him] to suffer emotional distress, or that the incidents were not harassing because they involved constitutionally protected activity or conduct that served a legitimate purpose,” the Court of Appeals wrote. “We conclude that the trial court did not abuse its discretion in issuing the PPO order because the petition and testimony presented contained sufficient facts to constitute stalking under MCL 750.411h.”
Next, the Court of Appeals examined all the incidents that occurred between May 2021 and February 2025. In those incidents, the defendant claimed that he “did not engage in unconsented contact” because “he remained on his own property” and the plaintiff “had threatened [him] and engaged with him.” According to the defendant, “this was ‘a game’ that took ‘two to play.’”
“We disagree,” the Court of Appeals said, pointing to what constitutes “unconsented contact” in MCL 750.411h(1).
The Court of Appeals continued by addressing each incident under the lens of the applicable statutes.
Regarding the February 21, 2025 incident in particular – which was captured on video – the defendant again argued that it was not an unconsented contact. “In fact, [the plaintiff], who had not heard what [the defendant] had said to him, yelled back: ‘F*** Boy.’ In turn, [the defendant] agreed that he called [the plaintiff] a ‘dumb n*****.’ In [the defendant’s] view, [the plaintiff] consented to this contact by responding …, by never asking [the defendant] to leave him alone, by not asking [the defendant] not to talk to him, and by not even trying to avoid interactions with [the defendant]. Thus, ‘[t]his was a game that the two men were willingly playing together.’”
The Court of Appeals disagreed with the defendant’s argument. “As already discussed, by definition, unconsented contact is not only any contact in disregard of a person’s expressed desire that contact be avoided, but also any ‘contact that is initiated or continued without the individual’s consent[.]’ … [The defendant] initiated the contact … and [the plaintiff] responded by cursing [the defendant], not extending an invitation to chat further. Moreover, unlike this Court, the trial court had the benefit of watching and hearing the video recording of this incident.”
Further, the Court of Appeals rejected the defendant’s argument that, even if he used racially charged language in the incidents, such speech is constitutionally protected. “We recognize that ‘[t]he First Amendment, applicable to the States through the Fourteenth Amendment, provides that Congress shall make no law … abridging the freedom of speech.’ … ‘The First Amendment protects the speech … rights of an individual … no matter how different, unpopular or morally repugnant society may find his activities.’”
However, the First Amendment “does not protect ‘fighting words,’” the Court of Appeals emphasized. “Numerous courts have concluded that use of the particular racial invective [the defendant] repeatedly uttered in this case falls within the fighting words exception when considered in context. … [D]uring the PPO hearing, the trial court specifically recognized that the First Amendment could protect the simple utterance of this racial invective. Regardless, [the defendant’s] repeated use of racial invectives alone did not support the trial court’s decision to issue the PPO. Rather, [his] use of racial invectives provided necessary context for his contacts with [the plaintiff], which may otherwise have an innocent purpose. For example, [the defendant] discharging a firearm might be an innocent act that did not amount to harassment. But, when viewed in context, [the defendant] engaging in this conduct while also repeatedly yelling the same racial invective that he had earlier used to refer to [the plaintiff], could properly be considered to demonstrate his intent.”
Based on the foregoing, “we cannot conclude that the trial court clearly erred in determining that this contact was not consensual, was harassing, and caused emotional distress,” the Court of Appeals held. “Accordingly, the trial court did not abuse its discretion by issuing the PPO … because [the] petition contained sufficient facts to establish [the defendant] engaged in stalking as defined in MCL 750.411h.”
