JODY LYNN COOLMAN V BRAD LAISURE

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STATE OF MICHIGAN COURT OF APPEALS JODY LYNN COOLMAN, UNPUBLISHED November 30, 2001 Petitioner-Appellee, v No. 224050 Mason Circuit Court LC No. 99-000476-PH BRAD LAISURE, Respondent-Appellant. Before: Cavanagh, P.J., and Doctoroff and Jansen, JJ. PER CURIAM. Respondent Brad Laisure appeals as of right from the circuit court order that denied his motion to terminate a personal protection order (PPO) that the court granted ex parte to petitioner Jody Lynn Coolman under MCL 600.2950a. We affirm in part and reverse in part. As a preliminary matter, we must determine whether this appeal is moot given that the expiration date on the PPO, as modified, was February 1, 2000. An issue is moot if an event occurs that renders it impossible for the court, if it should decide in favor of the party, to grant relief. City of Jackson v Thompson-McCully Co, LLC, 239 Mich App 482, 493; 608 NW2d 531 (2000). Here, although the PPO has expired, the PPO remains entered in the law enforcement information network (LEIN). See MCL 600.2950a(7) & (14). There is no provision in the statute for removal of a PPO from the LEIN upon the order’s expiration date. However, if this Court determined that the PPO was improper in some manner, respondent could seek entry on the LEIN of an order rescinding, terminating, or modifying the PPO. See MCL 600.2950a(16) & (17). Accordingly, because it is not impossible for this Court to grant some measure of relief in this case, the appeal is not moot. Turning to the merits of respondent’s appeal, he argues that the circuit court erred in granting the ex parte PPO and in denying his motion to terminate the order. A PPO is statutorily defined as an “injunctive order.” MCL 600.2950a(29)(b). The granting of injunctive relief is within the sound discretion of the trial court, although the decision must not be arbitrary and must be based on the facts of the particular case. Int’l Union v State, 231 Mich App 549, 551; 587 NW2d 821 (1998). The trial court’s findings of fact are reviewed for clear error. Id.; MCR 2.613(C). -1- MCL 600.2950a1, which provides for a PPO in a non-domestic stalking context, states, in pertinent part: (1) Except as provided in subsections (25) and (26), . . . 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 or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and 750.411i. Relief may be sought and granted under this section whether or not the individual to be restrained or enjoined has been charged or convicted under section 411h or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and 750.411i for the alleged violation. *** (9) An ex parte personal protection order shall not be issued and effective without written or oral notice to the individual enjoined or his or her attorney unless it clearly appears from specific facts shown by verified complaint, written motion, or affidavit that immediate and irreparable injury, loss, or damage will result from the delay required to effectuate notice or that the notice will itself precipitate adverse action before a personal protection order can be issued. In this case, petitioner alleged in her petition that she repeatedly told respondent that their relationship was over, and that, at a bar on October 2, he grabbed her arm, swung her around, and attempted to drag her out the door. Based on these allegations, we conclude that the circuit court did not clearly err in finding that petitioner was subject to “immediate and irreparable injury, loss, or damage” on the date the PPO was issued, or that notice of the petition would “precipitate adverse action.” MCL 600.2950a(9); Kampf v Kampf, 237 Mich App 377, 384; 603 NW2d 295 (1999). Therefore, the court did not abuse its discretion in granting the ex parte PPO. However, following the November 1 hearing on respondent’s motion to terminate the PPO, the circuit court clearly erred in finding that respondent “stalked” petitioner. “Stalking” is defined 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. [MCL 750.411h(1)(d) (emphasis added).] 1 Since the lower court action in this case, MCL 600.2950a was amended by 1999 PA 268, effective July 1, 2000. Relevant to this case, the following was inserted after the first sentence in section 1: “Relief shall not be granted unless the petition alleges facts that constitute stalking as defined in section 411h or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and 750.411i.” -2- The statute defines “course of conduct” as “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), and “harassment” 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. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose. [MCL 750.411h(1)(c).] Based on the testimony of the parties at the hearing, there was no clear evidence of a “willful course of conduct” composed of 2 or more “separate noncontinuous acts evidencing a continuity of purpose.” The repeated phone calls and other non-physical contacts prior to September 30 appear to have been attempts by respondent to find out why petitioner had broken off the relationship and to possibly repair the relationship. The evidence demonstrated that petitioner did not feel terrorized or harassed as a result of this series of contacts. The October 2 incident at the bar was the basis for petitioner’s fear of respondent and for seeking the PPO. However, the bar incident did not involve the same “continuity of purpose” as the prior contacts. Moreover, there is no dispute that, other than the October 2 bar incident, respondent made no attempt to contact petitioner between the parties’ telephone call on September 30, when petitioner clearly informed respondent that the relationship was over, and November 1, when the hearing on respondent’s motion was heard. We conclude that the court clearly erred in finding that respondent’s conduct rose to the level of stalking as statutorily defined. Thus, the circuit court abused its discretion in denying respondent’s motion to terminate the PPO. The circuit court’s decision to grant the ex parte PPO on October 4, 1999 is affirmed, but the court’s decision to continue the order after November 1, 1999, is reversed. Affirmed in part, reversed in part. Respondent may tax costs pursuant to MCR 7.219. /s/ Mark J. Cavanagh /s/ Martin M. Doctoroff /s/ Kathleen Jansen -3-

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