District Court, Farmington Department The Honorable David R.
Hamilton No. 150700084
G. Petty and James C. Swindler, Attorneys for Appellant.
Michael Strand, Appellee Pro Se
J. Frederic Voros Jr. authored this Opinion, in which Judges
David N. Mortensen and Jill M. Pohlman concurred.
This appeal represents the first opportunity for an appellate
court to consider Utah's vexatious litigant rule, rule 83
of the Utah Rules of Civil Procedure. Appellant Nupetco
Associates LLC contends that the district court read the rule
too narrowly. We agree and accordingly reverse.
For many years Nupetco and Michael Strand, individually and
through his partnership, have been embroiled in multiple
legal fights over the ownership of a Utah residence.
Exasperated with Strand's dogged litigation tactics,
Nupetco moved under rule 83 of the Utah Rules of Civil
Procedure for an order declaring Strand a vexatious litigant.
The district court denied Nupetco's motion under several
provisions of rule 83, but essentially for one reason: none
of the vexatious conduct that Nupetco alleged occurred in
this case. The district court reasoned that it was in no
position to assess the propriety of Strand's litigation
tactics in other lawsuits.
Nupetco contends that the district court read rule 83 too
narrowly. According to Nupetco, rule 83 authorizes a court to
find a litigant to be vexatious-and thus to enter a vexatious
litigant order against that litigant-based entirely on that
litigant's conduct in other cases. Without discounting
the district court's concerns, we read rule 83 as Nupetco
"A district court's interpretation of a rule of
civil procedure presents a question of law that is reviewed
for correctness." Aequitas Enters., LLC v.
Interstate Inv. Group, LLC, 2011 UT 82, ¶ 7, 267
P.3d 923. "We interpret court rules, like statutes and
administrative rules, according to their plain
language." Burns v. Boyden, 2006 UT 14, ¶
19, 133 P.3d 370. Courts are, in short, bound by the text of
the rule. State v. Lucero, 2014 UT 15, ¶ 32,
328 P.3d 841, abrogated on other grounds by State v.
Thornton, 2017 UT 9.
Rule 83 authorizes a court to impose restrictive orders on
vexatious pro se litigants. The purpose of such orders is to
curb the litigant's vexatious conduct. To that end, the
order may, for example, require the litigant to obtain legal
counsel before proceeding in the pending action or to obtain
leave of court before filing pleadings, motions, or other
papers. See Utah R. Civ. P. 83(b), (d). But before
imposing such an order, the court must make two findings.
First, it must find by clear and convincing evidence that
"the party subject to the order is a vexatious
litigant." See id. R. 83(c)(1)(A). Second, the
court must find, again by clear and convincing evidence, that
"there is no reasonable probability that the vexatious
litigant will prevail on the claim"-that is, the
litigant's claim pending before the court. See
id. R. 83(c)(1)(B). In other words, the court cannot
impose a vexatious litigant order on a pro se litigant whose
claim before that court enjoys a reasonable probability of
Subsection 83(a)(1) of the rule defines "vexatious
litigant." A court may find a person to be a vexatious
litigant if the person, without legal representation,
undertakes any of four types of vexatious conduct described
in the rule, such as repeatedly filing nonmeritorious claims.
See id. R. 83(a)(1). The correctness of the district
court's order here-and consequently all questions on
appeal-depends on the proper reading of rule 83(a)(1).
Nupetco contends that the district court misinterpreted
subsections 83(a)(1)(B) and 83(a)(1)(C).
Rule 83(a)(1)(B) permits a court to declare a litigant
vexatious if the litigant, acting without legal
representation, persists in litigating a claim or issue that
has been finally determined:
After a claim for relief or an issue of fact or law in the
claim has been finally determined, the person two or more
additional times re-litigates or attempts to re-litigate the
claim, the issue of fact or law, or the validity of the
determination against ...