NPEC v. Miller

2018 UT App 85
THE UTAH COURT OF APPEALS
NPEC LLC, F LUENT H OME LLC, JACK ELBAUM , GRAHAM WOOD,
AND K RISTI BETTRIDGE,
Appellees,
v.
GREGORY R YAN M ILLER ,
Appellant.
Per Curiam Opinion
No. 20170635-CA
Filed May 10, 2018
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. O RME, M ICHELE M. C HRISTIANSEN , and
K ATE A. TOOMEY .
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
1. This court implemented procedures adopted in D’Aston v.
D’Aston, 790 P.2d 590 (Utah Ct. App. 1990), which the Utah
Supreme Court later adopted in Hentsch Henchoz & Cie v. Gubbay,
(continued…)

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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.
(…continued)
2004 UT 64, 97 P.3d 1283, stating that an appellate court, “in its
discretion, may dismiss the appeals of appellants who have
willfully disobeyed an order of a lower court in the same
action.” Id. ¶ 16. “Such authority is indispensable since it would
violate the principles of justice to allow a party who flaunts the
orders of the courts to seek judicial assistance on appeal.” Id.
(quotation simplified).
2. The complaint is not included in the record, and Miller did not
move to supplement the record with it.
3. Although that case had been resolved and unsuccessfully
appealed, there were ongoing proceedings in the district court
related to enforcement of the Agreement and Miller’s ongoing
contempt of the district court’s orders.

NPEC v. Miller
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¶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

NPEC v. Miller
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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.

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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 allowing him to reassert, in the 2017 lawsuit and his
second appeal, the dismissed claims from his first appeal.
¶8 	The decision in Lewis v. Nelson, 2017 UT App 230, 409 P.3d
149, applied the mandate rule to a second appeal after this
court’s rejection of a claim in the first appeal in the same case
based upon inadequate briefing and without reaching its merits.
Id. ¶ 10. This court did not address the merits of the claim in the
first 	appeal 	that 	the 	district 	court 	erred 	in 	denying 	the
appellant’s 	first 	motion 	to 	amend 	his 	answer 	to 	add 	a
counterclaim. Id. But this court ultimately reversed the summary
judgment in the first appeal on other grounds and remanded for
further proceedings. Lewis v. Nelson, 2015 UT App 262, ¶ 17, 366
P.3d 848. Nelson asked the newly assigned judge to review the
originally assigned judge’s denial of the first motion to amend.
Lewis, 2017 UT App 230, ¶ 7. The opposing party argued that this
court’s decision in the first appeal declining to consider the same
challenge 	as 	inadequately 	briefed 	should 	preclude 	its
consideration in proceedings on remand. Id. ¶ 8. The district
court agreed. Id.
¶9 	In the second appeal in Lewis, this court concluded that
the mandate rule precluded consideration of a claim of error
regarding the denial of the first motion to amend. Id. ¶ 10.

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Noting that this court had “disposed of this argument because it
was inadequately briefed,” this court concluded that “the law of
the case doctrine precludes us from addressing this argument
anew.” Id. Thus, we applied the mandate rule in the second
appeal based upon this court’s ruling in the first appeal that it
would not consider an inadequately briefed claim. Accordingly,
application of the mandate rule is not limited to claims that were
resolved on the merits in an earlier appeal.
¶10 	This court’s November 18, 2016 order disposed of Miller’s
first appeal of the 2015 and 2016 orders in NPEC v. Miller by
dismissing it with prejudice. Miller could not revive those claims
by reasserting them in the 2017 lawsuit or by reason of a
consolidation of the 2017 lawsuit with the ongoing enforcement
proceedings in NPEC v. Miller. The district court and this court
are bound by the law of the case and are precluded from
reviewing claims previously dismissed with prejudice.
¶11 	Miller also attempts to claim that his second appeal falls
within an exception to the mandate rule.
There are three exceptional circumstances in which
the law of the case doctrine does not apply: (1)
when there has been an intervening change of
controlling authority; (2) when new evidence has
become 	available; 	or 	(3) when 	the 	court 	is
convinced 	that 	its 	prior 	decision 	was 	clearly
erroneous and would work a manifest injustice.
IHC Health Servs. Inc., 2008 UT 73, ¶ 34 (quotation simplified).
¶12 	Miller has not demonstrated any change in the law or any
new evidence that would satisfy these exceptions. Although
Miller 	believes 	that 	it 	is 	manifestly 	unjust 	to 	enforce 	the
Agreement to prevent or sanction his actions to malign his
former employer and its principal, his arguments are essentially
based upon his claim that the Agreement he entered into with
NPEC is void. Those claims were dismissed with prejudice in the

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first appeal, and this court is precluded from considering those
arguments in his second appeal by reason of the law of the case
doctrine. And this court is not “convinced” that our “prior
decision was clearly erroneous and would work a manifest
injustice.” Id. (quotation simplified).
¶13 	Accordingly, we affirm.