                                                                                       FILED
                                                                                  Apr 27 2017, 10:51 am

                                                                                       CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
      ATTORNEY FOR APPELLANT                                                            and Tax Court


      Shaun T. Olsen
      Olsen Campbell, Ltd.
      Merrillville, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      M.G.,                                                      April 27, 2017
      Appellant-Respondent,                                      Court of Appeals Case No.
                                                                 45A05-1608-PO-1855
              v.                                                 Appeal from the Lake Superior
                                                                 Court
      V.P.,                                                      The Honorable Calvin D.
      Appellee-Petitioner.                                       Hawkins, Judge
                                                                 Trial Court Cause No.
                                                                 45D02-1605-PO-124



      Pyle, Judge.


                                        Statement of the Case
[1]   This case is a prime example of forum shopping for a protective order and the

      importance of respecting the doctrine of res judicata. M.G., who had a

      protective order against V.P., appeals the trial court’s order granting V.P.’s third

      petition for a protective order against M.G. M.G. argues that the trial court

      should have denied V.P.’s third protective order petition based on the doctrine
      Court of Appeals of Indiana | Opinion 45A05-1608-PO-1855 | April 27, 2017                       Page 1 of 10
      of res judicata because the third petition contained no new allegations from

      V.P.’s first and second protective order petitions that had been denied by judges

      sitting in two other Lake County trial courts. Concluding that V.P.’s third

      protective order petition was barred by res judicata, we reverse the trial court’s

      order and remand with instructions to vacate the protective order against M.G.


[2]   We reverse.


                                                       Issue
              Whether the trial court abused its discretion by granting V.P.’s
              third petition for a protective order.

                                                       Facts
[3]   On February 21, 2016, V.P. and M.G. were involved in a physical altercation at

      a restaurant. Thereafter, V.P. was charged with battery of M.G.


[4]   On April 6, 2016, M.G. filed—in Lake Superior Court #2—a petition for a

      protective order against V.P. (“M.G.’s PO Petition”). That same day, the trial

      court issued an ex parte order for protection against V.P. and then set a hearing

      for May 6, 2016.


[5]   In the meantime, on April 11, 2016, V.P. filed—in Lake Superior Court #6—a

      petition for a protective order against M.G. (“V.P.’s First PO Petition”). In her

      petition, V.P. alleged that M.G. had stalked her based on various events that

      occurred on the following dates: December 21, 2015; February 10, 2016;

      February 21, 2016; and March 20, 2016. The crux of V.P.’s allegations were

      that M.G. had met with and had been texting V.P.’s husband. V.P. also alleged

      Court of Appeals of Indiana | Opinion 45A05-1608-PO-1855 | April 27, 2017   Page 2 of 10
      that she had received hang up calls, which V.P. alleged were from M.G., and

      she alleged that M.G. had driven past her house. Furthermore, V.P. alleged

      that on February 21, 2016, she saw her husband’s truck parked in front of a

      restaurant, stopped and went into the restaurant where she found M.G. talking

      to her husband, and then she and M.G. got into a physical altercation. 1

      Additionally, V.P. alleged that, on March 20, 2016, M.G. had tipped off police

      to V.P.’s location so that the police could arrest V.P. on an outstanding warrant

      for failing to appear at a truancy hearing for her daughter. That same day, Lake

      Superior Court #6 denied V.P.’s petition, finding that V.P. “ha[d] not shown,

      by a preponderance of the evidence, that stalking ha[d] occurred sufficient to

      justify the issuance of an Order for Protection.” (App. 19).


[6]   A few days later, on April 14, 2016, V.P. filed—in Lake Superior Court #3—a

      second petition for a protective order against M.G. (“V.P.’s Second PO

      Petition”). In her petition, V.P. alleged that she was a victim of stalking based

      on various events that had occurred on the following dates: December 21,

      2015; February 10, 2016; February 21, 2016; March 27, 2016; and March 29,

      2016. Again, most of V.P.’s allegations were that M.G. had met with and had

      texted V.P.’s husband. V.P.’s March 27th allegation was the same as her

      March 20, 2016 allegation in V.P.’s First PO Petition, except for the change of

      date. Her March 29th allegation was that M.G. had texted V.P.’s husband.

      Lake Superior Court #3 held a hearing on V.P.’s Second PO Petition on April



      1
          V.P. also alleged that M.G. had hit V.P.’s daughter.


      Court of Appeals of Indiana | Opinion 45A05-1608-PO-1855 | April 27, 2017   Page 3 of 10
      29, 2016, and it denied the petition, again finding that V.P. “ha[d] not shown,

      by a preponderance of the evidence, that stalking ha[d] occurred sufficient to

      justify the issuance of an Order for Protection.” (App. 28).


[7]   On May 6, 2016, the trial court in Lake Superior Court #2 held a hearing on

      M.G.’s PO Petition. Thereafter, it entered a protective order against V.P. for

      the protection of M.G. for two years.


[8]   That same day, V.P. then filed—in Lake Superior Court #2—a third petition

      for a protective order against M.G. (“V.P.’s Third PO Petition”). It is this

      petition that is at issue in this appeal. In her petition, V.P. alleged that she was

      a victim of stalking. Specifically, V.P. recounted the February 21, 2016 incident

      at the restaurant that she had included in her first and second protective order

      petitions. Additionally—as she had alleged in her other two protective order

      petitions—V.P. again alleged that M.G. had contacted police so that they could

      arrest V.P. on an outstanding truancy warrant; however, in this third petition,

      V.P. alleged that this event had occurred on February 21, 2016. V.P. also

      generally alleged that M.G. had been “stalking [her] home” by driving by it,

      calling her cell phone, and sending threatening messages to her. (App. 31). She

      did not include any dates for these allegations. That same day, on May 6, 2016,

      the trial court issued an ex parte order for protection against M.G. Thereafter,

      M.G. filed an objection to V.P.’s Third PO Petition and requested a hearing.




      Court of Appeals of Indiana | Opinion 45A05-1608-PO-1855 | April 27, 2017   Page 4 of 10
[9]    Following a continuance by V.P., the trial court held a hearing on M.G.’s

       objection on July 15, 2016.2 During the hearing, V.P. acknowledged that the

       February 2016 restaurant fight allegation3 contained in her Third PO Petition

       was also in her prior petitions and that it had been covered in the April 29, 2016

       hearing on her Second PO Petition that had been denied by Lake Superior

       Court #3. She asserted that the trial judge had denied her Second PO Petition

       because there had not been any other incidents outside of the February 2016

       fight at the restaurant. V.P. also admitted that the other allegations contained

       in her Third PO Petition—including the phone calls, which were from an

       anonymous caller whom V.P. alleged was M.G., and the house drive-bys—

       were discussed in the hearing on her Second PO Petition. V.P. also

       acknowledged that these alleged activities had not occurred since April 29,

       2016, when she had last seen M.G. in court for the hearing on V.P.’s Second

       PO Petition. Nevertheless, V.P. argued that the ex parte protective order

       should be extended based on her assertion that M.G. had been “stalking” her

       with phone calls and had been driving past her house. (Tr. 25). V.P. stated that

       she was “afraid” of M.G. and that she wanted the protective order continued

       because there was “no telling what [M.G.] might do[.]” (Tr. 25).


[10]   M.G. argued that V.P.’s Third PO Petition should be dismissed based on res

       judicata; specifically, she argued that the petition would be “collaterally


       2
           During the hearing, V.P. represented herself pro se, and M.G. was represented by counsel.
       3
         V.P. testified that she had been charged with battery against M.G. as a result of the February 2016
       restaurant incident and that the charge was still pending. She also testified that she had been charged with
       invasion of privacy of M.G. based on an event that had occurred on June 14, 2016.

       Court of Appeals of Indiana | Opinion 45A05-1608-PO-1855 | April 27, 2017                          Page 5 of 10
       estopped under the claim preclusion doctrine because all of [V.P.’s allegations

       had been] raised, aired, and decided upon at a prior court.” (Tr. 30). M.G.

       asserted that V.P. had already had “two bites at the apple” that were denied and

       that she “shouldn’t get a third one.” (Tr. 30). Additionally, M.G. asserted that

       V.P. had shown a “pattern . . . moving from court to court to see who might be

       amenable or what court might be agreeable to provide a protective order,” and

       M.G. argued that the trial court should stop this “forum shopping.” (Tr. 31).


[11]   In response to M.G.’s arguments, the trial court acknowledged the issues of res

       judicata and forum shopping and the fact that V.P. had already had a hearing

       on the allegations contained in her Third PO Petition. The trial court, however,

       questioned the prior courts’ judgments denying V.P.’s other protective order

       petitions. The trial court stated that it d[id]n’t know if [it] would agree” with

       “the previous jurists and their rationale[.]” (Tr. 34). The trial court asserted

       that it had researched the origin of protective orders and found that “the

       rationale for why these laws came into being first and foremost was to try to

       prevent domestic violence.” (Tr. 33). The trial court further stated that it

       “tend[ed] to err on the side of caution given all the stuff that’s out here” and

       that it ha[d] been “extremely sensitive” to domestic violence. (Tr. 34). The

       trial court stated that V.P. and M.G. “need[ed] to stay away from one another”

       and that an extension of V.P.’s ex parte protection order would give them

       “mutual protective orders.” (Tr. 33, 34). Thereafter, the trial court issued an

       order, overruling M.G.’s objection and determining that the protective order it




       Court of Appeals of Indiana | Opinion 45A05-1608-PO-1855 | April 27, 2017   Page 6 of 10
       had previously issued on V.P.’s Third PO Petition would remain in effect until

       May 6, 2017. M.G. now appeals.


                                                     Decision
[12]   Before we address M.G.’s argument, we note that V.P. did not file an

       Appellee’s brief. When an appellee fails to submit an appellate brief, “‘we need

       not undertake the burden of developing an argument on the [A]ppellee’s

       behalf.’” Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014) (quoting

       Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)). Rather, “‘we

       will reverse the trial court’s judgment if the appellant’s brief presents a case of

       prima facie error.’” Id. (quoting Trinity Homes, 848 N.E.2d at 1068). “Prima

       facie error in this context is defined as, at first sight, on first appearance, or on

       the face of it.” Id. (internal quotation marks and citation omitted).


[13]   M.G. argues that the trial court abused its discretion by granting a protective

       order based on V.P.’s Third PO Petition. Specifically, M.G. contends that

       V.P.’s Third PO Petition was barred by res judicata because she raised no new

       allegations of misconduct beyond those raised in her prior petitions that had

       been denied in the month prior to this third petition. M.G. asserts that

       “[d]eclining to require the Trial Court to apply res judicata in this case would

       encourage forum shopping and redundant litigation by permitting parties who

       have been denied a protective order to re-petition in different courts[.]” (M.G.’s

       Brief at 12). We agree.




       Court of Appeals of Indiana | Opinion 45A05-1608-PO-1855 | April 27, 2017    Page 7 of 10
[14]   “Civil protective orders are governed by the Indiana Civil Protection Order Act

       (“CPOA”)[.]” Costello v. Zollman, 51 N.E.3d 361, 364 (Ind. Ct. App. 2016),

       trans. denied. See IND. CODE §§ 34-26-5-1 et seq. “‘Generally, a trial court has

       discretion to grant protective relief according to the terms of the CPOA.’”

       Costello, 51 N.E.3d at 367 (quoting A.N. v. K.G., 10 N.E.3d 1270, 1271 (Ind. Ct.

       App. 2014)).


[15]   The trial court, however, does not have discretion to ignore the doctrine of res

       judicata. Indeed, res judicata “‘supersedes [discretion] and compels

       judgment[.]’” State v. Lewis, 543 N.E.2d 1116, 1118 (Ind. 1989) (quoting

       Southern Ry. Co. v. Clift, 260 U.S. 316, 319 (1922)). “Nor are the res judicata

       consequences of a final, unappealed judgment on the merits altered by the fact

       that the judgment may have been wrong or rested on a legal principle

       subsequently overruled in another case.” Perry v. Gulf Stream Coach, Inc., 871

       N.E.2d 1038, 1048 (Ind. Ct. App. 2007) (internal quotation marks and citation

       omitted). “To hold otherwise would constitute an unprecedented departure

       from accepted principles of res judicata.” Id. (internal quotation marks and

       citation omitted).


[16]   “Res judicata, whether in the form of claim preclusion or issue preclusion (also

       called collateral estoppel), aims to prevent repetitious litigation of disputes that

       are essentially the same, by holding a prior final judgment binding against both

       the original parties and their privies.” Becker v. State, 992 N.E.2d 697, 700 (Ind.

       2013) (italicization removed). Res judicata “applies where there has been a

       final adjudication on the merits of the same issue between the same parties.”

       Court of Appeals of Indiana | Opinion 45A05-1608-PO-1855 | April 27, 2017   Page 8 of 10
       Indiana State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 993 (Ind. 2014) (internal

       quotation marks and citation omitted).


[17]   At the protective order hearing below, M.G. argued that claim preclusion

       applied and would bar V.P.’s Third PO Petition because all the allegations in

       her petition had already been previously “raised, aired, and decided upon at a

       prior court.” (Tr. 30).


               Claim preclusion is applicable when a final judgment on the
               merits has been rendered and acts to bar a subsequent action on
               the same claim between the same parties. When claim
               preclusion applies, all matters that were or might have been
               litigated are deemed conclusively decided by the judgment in the
               prior action. Claim preclusion applies when the following four
               factors are present: (1) the former judgment was rendered by a
               court of competent jurisdiction; (2) the former judgment was
               rendered on the merits; (3) the matter now at issue was, or could
               have been, determined in the prior action; and (4) the
               controversy adjudicated in the former action was between parties
               to the present suit or their privies.

       Dawson v. Estate of Ott, 796 N.E.2d 1190, 1195 (Ind. Ct. App. 2003) (citations

       omitted).


[18]   Neither V.P. nor the trial court disputed the applicability of claim preclusion or

       the fact that V.P. had already had a hearing and judgment on the allegations

       contained in her Third PO Petition. Instead, the trial court cited to domestic

       violence as the reason for protective orders, questioned the “previous jurists and

       their rationale,” stated that it preferred to “err on the side of caution[,]” and



       Court of Appeals of Indiana | Opinion 45A05-1608-PO-1855 | April 27, 2017   Page 9 of 10
       then ruled on the merits of V.P.’s Third PO Petition and extended the ex parte

       protection order. (Tr. 34).


[19]   We appreciate the trial court’s concern about domestic violence; indeed, it is

       this concern that underlies interpretation of the CPOA. See I.C. § 34-26-5-1

       (providing that the CPOA “shall be construed to promote the . . . (1) protection

       and safety of all victims of domestic or family violence in a fair, prompt, and

       effective manner; and (2) prevention of future domestic and family violence”).

       We cannot, however, condone the trial court’s disregard of the doctrine of res

       judicata. Here, the trial court ruled on the same allegations that had been

       previously addressed by a prior court. Because such ruling was barred by res

       judicata, we reverse the trial court’s judgment and reverse with instructions to

       vacate the protective order against M.G.


[20]   Reversed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 45A05-1608-PO-1855 | April 27, 2017   Page 10 of 10
