Domestic Violence

questions & answers

Question: If an Injunction of Harassment is dropped in Superior Court, can I re-apply due to not having enough evidence? Or appeal it? What are my options? Thanks for your help/info.

Answer:

The answer depends on what you mean by "dropped in Superior Court."

If you voluntarily dismissed the injunction (i.e. on your own motion) before it went to a contested trial, then you *may* be able to apply again using the same evidence. There is no case law on this point, and the harassment injunction statute is a little different than the domestic violence protective order laws, which explicitly permit multiple applications. So it's an open question as to whether you would get away with a renewed application based on old facts.

If the injunction was "dropped" by the court following a contested hearing, then, no, you cannot walk back into court and simply reapply for another injunction based on the same evidence. You would need to show that something new has happened to aggravate the situation. This is because of a legal principle referred to as "res judicata" - or "issue preclusion." The rule protects the courts against constant, repetitive lawsuits involving the same facts and legal issues. You *are* allowed to combine old data with the new evidence, but you would still need to have that new evidence. (No, that doesn't mean you can dig up something that you already knew about before the last trial, but forgot to mention. That's not "new" evidence!)

If the court has thrown out your injunction for lack of evidence after a contested hearing, then you do have the right to appeal the decision (as a final judgment) to the Arizona court of appeals. *In general*, the civil appellate rules require the filing of a notice of appeal within 30 days of the trial court's original order, but do NOT rely on this forum exchange to plan your appeal strategy. You should consult with an Arizona attorney immediately, and it should be someone familiar with harassment injunctions who also handles appellate work.