SUSANNE KLEMENT v. BORIS KOFSMAN o/b/o A.K. ( 2022 )


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  •         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    SUSANNE KLEMENT,
    Appellant,
    v.
    BORIS KOFSMAN o/b/o A.K., a child,
    Appellee.
    No. 4D21-1867
    [March 30, 2022]
    Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
    Beach County; Debra Moses Stephens, Judge; L.T. Case Nos.
    502020DR010064 and 502021DR003234.
    Alexander Fischer, Chad S. Purdie, and Antonia Iragorri of Sanchez
    Fischer Levine, LLP, Fort Lauderdale, and Raquel A. Rodriguez and
    Chance Lyman of Buchanan Ingersoll & Rooney PC, Miami, for appellant.
    No brief filed for appellee.
    KLINGENSMITH, J.
    Appellant Susanne Klement appeals the trial court’s entry of a stalking
    injunction sought by appellee Boris Kofsman on behalf of his minor child,
    A.K. After the trial court denied his first petition for a stalking injunction,
    appellee filed a second petition, making claims nearly identical to the first
    petition. When the matter came before a different judge, the second
    petition was granted. Klement claims that the entry of the injunction was
    barred by res judicata. We agree and reverse.
    The parties were next door neighbors whose daughters attended the
    same daycare center and became friends. Appellee alleged that acrimony
    developed between the two families due to some religiously bigoted
    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 appellee’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,
    appellee’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, appellee’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 appellee’s decision to hang a swing on a tree
    behind their house for A.K. Three days after hanging the swing, appellee
    found it had been removed. The neighborhood’s homeowner’s association
    informed appellee that it removed the swing because Klement had notified
    it that the swing was on her property. Eventually, appellee and his family
    rented out their townhouse and moved to a different location.
    Appellee 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 doubt that
    these incidents occurred. There were several in 2019 and we
    get all the way to December of 2020. 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.
    Okay? So, you know, I can’t—I don’t find that under this law
    and this case law that just the statute I do these stalking cases
    every week and I’m familiar with a lot of the case law. I just
    don’t think it qualifies under this statute.
    Three months later, appellee 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
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    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 appellee claimed he had been told by a neighbor
    that Klement had approached the neighbor and “was slandering [appellee
    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. Appellee 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.
    Klement moved to dismiss the petition and for sanctions, arguing
    appellee’s second petition was barred by res judicata and that the new
    incidents noted by appellee did not meet the statutory requirements for an
    injunction. The successor judge denied the motion and stated her belief
    that Klement’s behavior could be considered harassment. On the subject
    of res judicata, the 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 appellee’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.
    We consider a denial of a motion to dismiss under a de novo standard
    of review. See Travel Ins. Facilities, PLC v. Naples Cmty. Hosp., Inc., 
    330 So. 3d 108
    , 110 (Fla. 2d DCA 2021). Klement argues the successor judge
    should have granted her motion to dismiss appellee’s second petition as
    barred under the doctrine of res judicata. She asserts res judicata applies
    because appellee alleged essentially the same incidents as in his first
    petition and because the successor judge made her decision based on the
    same set of incidents that the previous judge had already considered and
    rejected.
    “Res judicata is a judicial doctrine used to bar parties from relitigating
    claims previously decided by a final adjudication on the merits.” Anderson
    3
    v. Vanguard Car Rental USA Inc., 
    60 So. 3d 570
    , 572 (Fla. 4th DCA 2011)
    (quoting W & W Lumber of Palm Beach, Inc. v. Town & Country Builders,
    Inc., 
    35 So. 3d 79
    , 82–83 (Fla. 4th DCA 2010)). “For res judicata to apply,
    there must be four identities: (1) identity of thing sued for, (2) identity of
    cause of action, (3) identity of persons and parties to the action, and (4)
    identity of quality or capacity of persons for or against whom the claim is
    made.” Burns v. Daimler Chrysler Corp., 
    914 So. 2d 451
    , 453 (Fla. 4th
    DCA 2005). “If these requirements are not met, the doctrine of res judicata
    does not apply.” Biscayne Constr., Inc. v. Wesley Constr. Co., 
    276 So. 2d 524
    , 526 (Fla. 3d DCA 1973).
    Res judicata bars not only claims that were raised but also claims that
    could have been raised in the prior action. In re Senate Joint Resolution of
    Legis. Apportionment 2-B, 
    89 So. 3d 872
    , 883-84 (Fla. 2012) (“Res judicata
    . . . [is] premised on the assumption that the parties have had the ability
    to raise all necessary claims and discover all necessary evidence to develop
    their cases.”). However, “[c]laims arising subsequent to a prior action . . .
    [that] perhaps could not, have been brought in that prior action . . . are
    not barred by res judicata regardless of whether they are premised on facts
    representing a continuance of the same course of conduct.” Greiner v. De
    Capri, 
    403 F. Supp. 3d 1207
    , 1225 (N.D. Fla. 2019) (quoting Storey v. Cello
    Holdings, L.L.C., 
    347 F.3d 370
    , 383 (2d Cir. 2003)); M.C.G. v. Hillsborough
    Cnty. Sch. Bd., 
    927 So. 2d 224
    , 227 (Fla. 2d DCA 2006) (“The doctrine of
    res judicata—which requires that the second suit present the identical
    cause of action as was previously litigated—is not applicable where the
    claims in the two cases concern different periods of time.”).
    In an analogous case, the Southern District of Florida found that when
    subsequent incidents of stalking arise, res judicata does not preclude
    litigation of those incidents that occurred after the initial claims of stalking
    were made and presented to the court. Nassar v. Nassar, No. 18-14455-
    CIV, 
    2020 WL 9460329
     at *3–4 (S.D. Fla. Apr. 17, 2020) (allowing the
    plaintiff to litigate incidents that occurred seven months after she filed her
    initial complaint). Our court has also found that res judicata will not bar
    litigation of different circumstances that would support the imposition of
    an injunction. Heck v. Heck, 
    714 So. 2d 1200
    , 1200–01 (Fla. 4th DCA
    1998).
    Because 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
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    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 appellee was
    litigious—would not have been barred by res judicata because they
    happened after the determination of appellee’s first petition. See 
    id.
    However, appellee did not present evidence related to those new claims.
    Instead, appellee 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. See 
    id.
    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.
    For those reasons, the successor judge erred in denying Klement’s
    motion to dismiss the second petition to the extent that she relied on
    allegations previously adjudicated by the first judge as non-qualifying.
    Although the injunction expired after six months, this appeal is not moot
    because the entry of an injunction has collateral legal consequences
    lasting beyond its term of existence. See Vaught v. Vaught, 
    189 So. 3d 332
    , 333 n.1 (Fla. 4th DCA 2016) (finding that an appeal from a domestic
    violence injunction that had expired was not moot “due to the collateral
    consequences such an injunction might cause”) (quoting Selph v. Selph,
    
    144 So. 3d 676
    , 679 (Fla. 4th DCA 2014)); Paulson v. Rankart, 
    251 So. 3d 986
    , 988 n.1 (Fla. 1st DCA 2018). Therefore, we reverse the trial court’s
    ruling and vacate the injunction entered against Klement.
    Reversed.
    WARNER and LEVINE, JJ., concur.
    *         *         *
    Not final until disposition of timely filed motion for rehearing.
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