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Mandt v. Lovell

Res judicata did not bar the trial court's consideration of a petition to terminate a family violence permanent protective order.

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Lynda Y. Mandt appeals from the trial court’s termination of a family violence permanent protective order PPO against William Roderick Lovell, the father of the parties’ minor child. Mandt asserts error, contending that: 1 the trial court was barred by res judicata from considering Lovell’s motion to terminate the PPO; 2 the trial court lacked jurisdiction to terminate an unappealed final order entered in a previous term of court; and 3 the trial court should have dismissed Lovell’s case for failure to state a claim upon which relief could be granted. For the reasons that follow, we affirm. We review legal error de novo. “When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the plain legal error standard of review.”1 “Factual findings made after a hearing shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them.”2

The initial, temporary family violence protective order against Lovell was issued April 23, 2007. Mandt moved for a PPO. Both parties were represented by counsel. After a hearing,3 the trial court on November 18, 2008, granted Mandt’s motion and converted the temporary protective order to a permanent order and also issued a separate PPO. Lovell did not move for reconsideration, nor did he file an appeal. Two years later, on November 18, 2010, Lovell moved to terminate the PPO. This motion did not contain a case number, nor did it indicate whether it was a new case or part of the original action. At some point thereafter, the trial court opened a new case with a new number, and after a hearing on May 2, 2011, at which both parties were represented, the trial court on May 12, 2011, granted the motion to terminate the PPO under the second case number as if this were new litigation.

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