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NPEC LLC v. Miller

Court of Appeals of Utah

May 10, 2018

NPEC LLC, Fluent Home LLC, Jack Elbaum, Graham Wood, and Kristi Bettridge, Appellees,
v.
Gregory Ryan Miller, Appellant.

          Third District Court, Salt Lake Department The Honorable Andrew H. Stone No. 130905131

          Gregory Ryan Miller, Appellant Pro Se

          Evan S. Strassberg and Melinda A. Morgan, Attorneys for Appellees.

          Before Judges Gregory K. Orme, Michele M. Christiansen, and Kate A. Toomey.

          OPINION

          PER CURIAM.

         ¶1 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).[1] 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.

         ¶2 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.[2] The district court consolidated the 2017 lawsuit with NPEC v. Miller.[3] On July 21, 2017, the district court dismissed the 2017 lawsuit for failure to state a claim. This second appeal followed.

         ¶3 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 lawsuit.

         ¶4 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.).

         ¶5 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."

         ¶6 "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 remand.

IHC Health Servs., 2008 UT 73, ¶ 28.

         ¶7 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 ...


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