PPO Request Wrongly Denied Based On Res Judicata | Speaker Law
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PPO Request Wrongly Denied Based On Res Judicata

Posted on Wednesday, April 7, 2021

A trial court erred by denying the petitioner’s request for a personal protection order (PPO) based on the prior denial of a similar PPO request by the petitioner, the Michigan Court of Appeals has ruled.

The petitioner in PF v JF (Docket No. 351461) asked the Macomb County Circuit Court to issue a PPO against the respondent, her ex-husband. The petition cited six incidents to support issuing a PPO. The trial court granted summary disposition for the respondent regarding five of the incidents, finding they were barred under the doctrine of res judicata – a legal doctrine used to prevent multiple suits litigating the same cause of action – because a PPO petition filed by the petitioner citing those same five incidents had previously been denied by a trial court in another county. As to the sixth incident, which happened after the initial PPO request had been rejected, the Macomb County Circuit Court held that it did not warrant a PPO under MCL 600.2950.

The petitioner appealed, arguing the trial court misapplied the doctrine of res judicata.

The Court of Appeals agreed.

“In this case, had petitioner sought a PPO on the basis of the same five incidents that were presented to the Macomb circuit court and nothing more, then the doctrine of res judicata would plainly have applied and precluded petitioner from obtaining a PPO,” the Court of Appeals wrote. “Petitioner, however, alleged a sixth incident that had not been, and could not have been, alleged in the Macomb circuit court. And those new allegations regarding the sixth incident, in our view, opened the door for consideration of the prior five incidents in conjunction with the sixth incident.”

Accordingly, “[w]e reverse and remand for further proceedings consistent with this opinion.”

Judge Jane E. Markey wrote the published opinion. She was joined by Judge Brock A. Swartzle and Judge Jonathan Tukel.


The parties were married in 1988 and divorced in 2012. In 2017, the respondent was convicted of attempted eavesdropping on the petitioner and was sentenced to two years’ probation that prohibited contact with the petitioner. The respondent was released from probation and the no-contact order in 2018.

In September 2019, the petitioner filed a PPO petition against the respondent in St. Clair County Circuit Court. The petitioner asserted there were five incidents involving the respondent that occurred and warranted the issuance of a PPO. The St. Clair County Circuit Court denied the petition, noting that the petitioner “has been interviewed, the petitioner’s claims are sufficiently without merit, and the action should be dismissed without a hearing.” The St. Clair Circuit Court also reasoned there was “no contact between the parties” and “no … evidence of [the respondent] being a credible threat[.]”

The petitioner filed the instant PPO petition against respondent three days later in the Macomb County Circuit Court. The petitioner set forth the five incidents that were presented to the St. Clair County Circuit Court, along with an additional incident, all of which allegedly warranted a PPO. The sixth incident took place the day after the petitioner’s first PPO request was denied and involved the respondent’s attendance at their minor child’s soccer game.

The Macomb County Circuit Court denied the petitioner’s request for an ex parte order. At an evidentiary hearing, the petitioner asserted the respondent’s stalking conduct and his history of abusive behavior caused her to suffer reasonable apprehension of violence, warranting a PPO under MCL 600.2950. At the conclusion of the petitioner’s testimony, the respondent moved to dismiss the case. The respondent argued the petitioner was relying on facts asserted in her first PPO petition that had been rejected, that she was engaging in forum shopping for a PPO and that the petitioner had not established a reasonable apprehension of violence. The respondent claimed that res judicata barred the PPO action. In response, the petitioner asserted the filing of the first PPO petition did not preclude her from filing the second petition in an effort to stay safe.

The Macomb County Circuit Court denied the respondent’s motion. In doing so, the court said: “I feel like you’re making a motion for summary disposition and I’m going to deny it at this point because it’s an issue of fact and credibility as to whether or not she felt threatened reasonably or not.”

The respondent continued to maintain the PPO was not warranted because the action was barred by res judicata and that, to the extent it was not barred, the respondent’s actions would not have caused a reasonable person to be fearful. Ultimately, the Macomb County Circuit Court issued a written opinion and order denying the petitioner’s request for a PPO. 

The petitioner appealed.

Totality Of The Circumstances

On appeal, the petitioner argued the trial court improperly granted summary disposition based on res judicata with respect to the initial five incidents referenced in the PPO petition. The petitioner also claimed the trial court abused its discretion by denying her petition in light of the evidence presented.

Addressing the petitioner’s arguments, the Court of Appeals explained the Michigan Supreme Court in Adair v Michigan, 470 Mich 105 (2004), set forth the factors to determine whether a claim is barred by res judicata. Quoting Adair, the Court of Appeals said: “The doctrine of res judicata is employed to prevent multiple suits litigating the same cause of action. The doctrine bars a second, subsequent action when (1) the prior action was decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the second case was, or could have been, resolved in the first. This Court has taken a broad approach to the doctrine of res judicata, holding that it bars not only claims already litigated, but also every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not.”

The Court of Appeals then turned to the facts in the present case, explaining that the sixth alleged incident “drove” the petitioner to again seek the help of a court to obtain a PPO. “And the sixth incident could not be viewed in isolation or a vacuum; rather, the pattern of conduct between and involving the parties, including the first five incidents, had to be examined in its entirety,” the appeals court observed.

“The earlier incidents could give explanation or context to the sixth incident by providing insight on intent, continuity of purpose, the reasonableness of beliefs, and states of mind or feelings relative to terror, fright, intimidation, threats, harassment, and molestation,” the Court of Appeals wrote. “As indicated, stalking entails a course or pattern of conduct that involves continuing or repeated harassment arising out of separate noncontinuous acts, MCL 750.411h, thereby justifying the issuance of a PPO to halt the ongoing conduct. Stated otherwise, multiple or a series of acts are necessarily required to issue a PPO based on stalking conduct, any one of which acts can shed light on the other acts. One incident can change the dynamics and meaning of surrounding incidents.”

The Court of Appeals said it recognized that the incidents raised in the first PPO action overlapped “with all but one” of the incidents raised in the present PPO action. “But were we to rule that res judicata precluded consideration of the first five incidents in relation to whether a PPO should be issued predicated on stalking activity, we would effectively be subverting the intent of the Legislature in enacting MCL 600.2950. A circuit court needs to have the ability to examine and consider the totality of the circumstances when ruling on a PPO petition. The past history of the parties is a necessary consideration when evaluating whether a PPO should be issued. We reverse and remand the case to the circuit court to again adjudicate the PPO petition, taking into consideration the five earlier incidents and any other pertinent history between the parties.”

In conclusion, the Court of Appeals declined to address whether the trial court abused its discretion by denying the PPO request based solely on the sixth incident. The appeals court also said it would not address whether the petitioner was entitled to a PPO based on all six incidents and prior history.

“As reflected in our discussion, the sixth incident cannot be viewed in isolation – the five earlier incidents and other relevant history must also be taken into consideration,” the Court of Appeals held. “This is not how the circuit court analyzed the case, and it would not be appropriate for us to engage in the analysis or examination in the first instance.”

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