The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Harassment Restraining Orders and Res Judicata


From Klement v. Kofsman, decided March 30 by the Florida Court of Appeal (Chief Judge Mark Klingensmith, joined by Judges Martha Warner and Spencer Levine); note that Kofsman was the plaintiff here, and Klement was the defendant:

The parties were next door neighbors whose daughters attended the same daycare center and became friends. [Kofsman] alleged that acrimony developed between the two families due to some religiously bigoted [anti-Semitic] statements, leading Klement to refuse permission for her daughter to play with A.K. Klement purportedly told A.K. on at least five occasions that "my daughter doesn't want to play with you," causing the child to cry. This led to a text message exchange between Klement and [Kofsman]'s wife with the latter asking Klement to "please stop harassing my child, husband and me," and Klement in return calling her a "horrible person."

In another alleged incident, A.K. was having an outside playdate with another child in the neighborhood when Klement approached and instructed her daughter to give a gift to the other child. When A.K. attempted to say hello to Klement's daughter, Klement allegedly began screaming, "Stop approaching my children," and "I'll call the police if you say hi to my child."

During other episodes in this simmering conflict, [Kofsman]'s wife called the police a few times to report Klement. On one occasion, she called the police non-emergency line because Klement had placed a "please honk your horn for a birthday" sign in front of their homes. After eight hours of hearing horns honking about every fifteen minutes, [Kofsman]'s wife contacted the police, who sent an officer to the Klement home for a report about a disturbance to the neighborhood.

Another event involved [Kofsman]'s decision to hang a swing on a tree behind their house for A.K. Three days after hanging the swing, [Kofsman] found it had been removed. The neighborhood's homeowner's association informed [Kofsman] that it removed the swing because Klement had notified it that the swing was on her property. Eventually, [Kofsman] and his family rented out their townhouse and moved to a different location.

[Kofsman] then filed his first petition for an injunction, including these events and others as part of the petition and supporting testimony. After hearing evidence from both parties, the trial judge found that the incidents described did not meet the statutory requirements for an injunction:

[The Court]: [L]egally I don't find that there is an ongoing course of harassment according to the law…. I don't find that the incident … was, you know, meant to cause harm in any way, or was an act of—was a threat or was an act of intimidation. I don't doubt that it made your daughter feel bad, and I don't doubt that she was—you know, that to a four and five-year-old that this kind of thing is not traumatic. I don't doubt that…. I just don't think it qualifies under this statute.

Three months later, [Kofsman] filed a second petition for an injunction against Klement, explaining that his family was moving back to the house next door to the Klements, that A.K. would be going to the same school as Klement's daughter, and they felt they needed "a protective order in place to avoid further trauma and possible physical harm." This second petition contained the same allegations made in the first petition but added two new incidents in which [Kofsman] claimed he had been told by a neighbor that Klement had approached the neighbor and "was slandering [Kofsman and his wife] and saying [they] go around suing people everywhere."

The trial court held an evidentiary hearing presided over by a different judge than the one who ruled on the first petition. [Kofsman] represented himself at this hearing and focused his testimony on the events he personally witnessed and that had already been detailed at the previous hearing. However, he did not present evidence related to the two new incidents involving the neighbor….[T]he successor judge stated,

I don't think it ever makes a difference whether a person has applied for an injunction three, four or five times and didn't get it. What's important is, do you have the incidents, do you meet the statute, and I believe that at this point they have met the statute.

In making her oral pronouncement, the successor judge referenced many of the incidents between the two parties, including [Kofsman]'s allegations of anti-Semitic comments, Klement's interactions with A.K., and the removal of the tree swing. The successor judge granted an injunction for a six-month period, and Klement appealed.

No, said the appellate court:

"Res judicata is a judicial doctrine used to bar parties from relitigating claims previously decided by a final adjudication on the merits." … [But b]ecause the first judge had previously considered the incidents described again in the second hearing and found each of them insufficient to constitute qualifying acts of harassment or stalking under the applicable statute, the successor judge was barred by res judicata from reconsidering those same claims and deeming them qualifying incidents.

Mere disagreement with conclusions reached by a prior court does not avoid the preclusive effect of res judicata. Even if the successor judge personally felt the incidents described in the first petition did constitute stalking or harassment such that an injunction should have been entered, because those incidents had already been considered, the doctrine of res judicata prevented the successor judge from imposing any injunction based on any incident previously rejected as non-qualifying under the statute.

While res judicata barred the re-litigation of the same incidents presented at the first hearing, the two new incidents alleged in the second petition—that Klement complained to a mutual neighbor that [Kofsman] was litigious—would not have been barred by res judicata because they happened after the determination of [Kofsman]'s first petition.

However, [Kofsman] did not present evidence related to those new claims. Instead, [Kofsman] presented evidence at the second hearing regarding only the same incidents described and adjudicated in the first petition and did not suggest any change or difference in circumstances or facts. Although the two newly added claims presented in the second petition may not have been barred by res judicata, the successor judge's oral pronouncement made clear that she did not base her ruling on the two new incidents or on any previous finding regarding the existence of a qualifying incident.