NPEC LLC, Fluent Home LLC, Jack Elbaum, Graham Wood, and Kristi Bettridge, Appellees,
Gregory Ryan Miller, Appellant.
District Court, Salt Lake Department The Honorable Andrew H.
Stone No. 130905131
Gregory Ryan Miller, Appellant Pro Se
S. Strassberg and Melinda A. Morgan, Attorneys for Appellees.
Judges Gregory K. Orme, Michele M. Christiansen, and Kate A.
Gregory Ryan Miller appeals the Final Order Granting Motion
to Dismiss with Prejudice, entered on July 21, 2017. This
order dismissed his complaint in Miller v. Fluent
Home, district court case number 170902164 (the 2017
lawsuit). That 2017 lawsuit was consolidated with NPEC v.
Miller, district court case number 130905131, which was
the subject of an appeal in case number 20160494-CA (the
first appeal). Despite this court's dismissal with
prejudice of Miller's first appeal, his second appeal,
case number 20170635-CA, repeats challenges to the same
district court orders that were the subject of his first
appeal and were dismissed with prejudice. We affirm.
When Miller filed his first appeal, he was in contempt of the
district court's orders. In a July 20, 2016 order, this
court stayed the first appeal for ninety days to allow Miller
to comply with the requirements of the district court's
orders or to obtain a stay of those orders. Based upon
Miller's failure to take the required steps to resolve
his contempt despite being given an opportunity to do so, we
dismissed the first appeal with prejudice on November 18,
2016. Roughly six months after our dismissal of his first
appeal, Miller filed the 2017 lawsuit, repeating claims that
the Settlement Agreement (the Agreement) that resolved
NPEC v. Miller was void and adding claims for
malicious prosecution and defamation. The district court
consolidated the 2017 lawsuit with NPEC v.
Miller. On July 21, 2017, the district court
dismissed the 2017 lawsuit for failure to state a claim. This
second appeal followed.
In the July 21, 2017 dismissal order, the district court
ruled that all claims in the 2017 lawsuit, other than
malicious prosecution, were barred by claim preclusion
because these claims were raised in NPEC v. Miller
and dismissed with prejudice by the district court in 2015.
The district court also concluded that Miller's
defamation claim included no claim "that would not be,
on its face, barred by the one year statute of
limitations." The district court also ruled that the
malicious prosecution claim, which related to criminal
proceedings for breach of a civil stalking injunction
obtained by an NPEC employee, was barred by issue preclusion.
In addition, the district court ruled that Miller had the
opportunity to raise any claims that factual
misrepresentations were the basis for the civil stalking
injunction within the same civil proceeding that resulted in
its issuance. Miller did not prevail in the civil stalking
injunction proceeding and did not file an appeal. Thus, the
district court concluded that findings made in connection
with the civil stalking proceeding were binding on Miller and
that he was not permitted to challenge them in the 2017
Miller's second appeal does not address the substance of
the order dismissing the 2017 lawsuit or NPEC's
successful arguments in support of that dismissal. Miller
instead challenges the same 2015 and 2016 orders that he
appealed in his first appeal and raises substantially the
same arguments that he raised in his first appeal. None of
Miller's arguments specifically challenge actions
occurring after the dismissal of his first appeal. Instead,
Miller simply filed a new lawsuit to renew his arguments
regarding the validity of the Agreement and the district
court's orders enforcing it. Miller raises the following
issues in his second appeal: (1) "Whether the district
court correctly interpreted the relevant statutes in finding
dissolved NPEC eligible to sue Miller and enter a Settlement
Agreement with him"; (2) "Whether dissolved NPEC
had standing to sue Miller or enter an enforceable Settlement
Agreement with him"; and (3) "Whether the district
court correctly interpreted the relevant common law in
finding expired NPEC eligible to sue Miller and enter into a
Settlement Agreement with him." Of course, the 2017
lawsuit was initiated by Miller, not NPEC. He argues in the
second appeal that this court "should reverse the
district court's Final Order Granting Motion to Dismiss
with Prejudice and vacate all district court orders
entered under case no. 130905131, NPEC, LLC v. Gregory R.
Miller." (Emphasis added.).
Miller may assume that the consolidation of NPEC v.
Miller with the 2017 lawsuit revived his right to appeal
the district court's 2015 and 2016 orders,
notwithstanding this court's dismissal of his first
appeal with prejudice. However, accepting that contention
would allow Miller to avoid the dismissal of his first appeal
with prejudice, as well as any consequences of the contempt
that resulted in that dismissal. Instead, as NPEC correctly
states, "the issue in this appeal is whether the law of
the case-and more specifically the 'mandate
rule'-precludes Miller from reasserting arguments and
challenges to district court rulings that were directly at
issue in Miller's prior appeal."
"The law of the case is a legal doctrine under which a
decision made on an issue during one stage of a case is
binding in successive stages of the same litigation."
Thurston v. Box Elder County, 892 P.2d 1034, 1037
(Utah 1995) (quotation simplified). "One branch of the
doctrine, often called the mandate rule, dictates that
pronouncements of an appellate court on legal issues in a
case become the law of the case and must be followed in
subsequent proceedings of that case." Id. at
1037-38. The mandate rule "binds both the district court
and the parties to honor the mandate of the appellate
court." IHC Health Servs., Inc. v. D & K Mgmt.,
Inc., 2008 UT 73, ¶ 28, 196 P.3d 588. As a result,
where a judgment is affirmed, or reversed and remanded,
"the [district] court may not permit amended or
supplemental pleadings to be framed to try rights already
settled." Utah Dep't of Transp. v. Ivers,
2009 UT 56, ¶ 12, 218 P.3d 583 (quotation simplified).
Thus, our supreme court held in Ivers that the
district court erred by allowing a party to amend its
pleadings on remand after its first appeal in an effort to
avoid the directions of the appellate court.
The mandate rule, unlike the law of the case before a remand,
binds both the district court and the parties to honor the
mandate of the appellate court. The mandate is also binding
on the appellate court should the case return on appeal after
IHC Health Servs., 2008 UT 73, ¶ 28.
Miller argues that the mandate rule is inapplicable here
because this court dismissed his first appeal without
addressing the merits of any of his appellate arguments.
Thus, he would have this court construe the mandate rule as a
variety of claim or issue preclusion applicable only to a
ruling on the merits. This would nullify any effect of the
dismissal of his first appeal with prejudice by ...