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Strand v. Nupetco Associates LLC

Court of Appeals of Utah

March 30, 2017

Michael Strand, Appellee,
v.
Nupetco Associates LLC, Appellant.

         Second District Court, Farmington Department The Honorable David R. Hamilton No. 150700084

          Wayne G. Petty and James C. Swindler, Attorneys for Appellant.

          Michael Strand, Appellee Pro Se

          Judge J. Frederic Voros Jr. authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.

          OPINION

          VOROS, Judge

         ¶1 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.[1]

         ¶2 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.

         ¶3 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 does.

         ¶4 "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.

         ¶5 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 success.

         ¶6 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).

         I. Rule 83(a)(1)(B)

         ¶7 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 ...

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