Strand v. Nupetco Associates

2017 UT App 55
THE UTAH COURT OF APPEALS
M ICHAEL S TRAND,
Appellee,
v.
NUPETCO A SSOCIATES LLC,
Appellant.
Opinion
No. 20151016-CA
Filed March 30, 2017
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. F REDERIC VOROS JR . authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and JILL M. POHLMAN concurred.
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.
1. Appellee Michael Strand did not file a brief in response to
Nupetco’s appeal.

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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

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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 the same
party 	in 	whose 	favor 	the 	claim 	or 	issue 	was
determined.
Utah R. Civ. P. 83(a)(1)(B). Nupetco alleged that Strand, in other
lawsuits, attempted three or more times to re-litigate claims that
had previously been finally determined. Based on this conduct,
Nupetco maintains, the district court should have found that
Strand had violated rule 83(a)(1)(B).

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20151016-CA 	4 	2017 UT App 55
¶8 	The district court read rule 83(a)(1)(B) more restrictively.
It concluded that “the plain language of Rule 83 does not permit
the Court to find that a person has re-litigated the same issue of
law or fact as an issue of law or fact not raised in the case before
it.” Rather, “the claim, or issue of fact or law in the claim” that a
party attempts to re-litigate “must also be at issue in the present
action.” A contrary reading of the rule, the court reasoned, could
lead to “forum-shopping or similarly undesirable behavior.”
¶9 	On appeal, Nupetco argues that nothing in the text of rule
83(a)(1)(B) requires that any of the repeated attempts to re-litigate
a decided issue must occur in the pending case. We agree.
¶10 	The text of rule 83(a)(1)(B) requires only that the person
two 	or 	more 	times 	re-litigates 	or 	attempts 	to 	re-litigate 	a
previously decided matter against the same party. Utah R. Civ.
P. 83(a)(1)(B). The text of the rule does not limit the court’s
inquiry to the pending action. This phrasing contrasts with other
subsections of rule 83 that expressly refer to “the pending
action.” Compare id., with id. R. 83(d)(3), and id. R. 83(e)(1). We
accordingly read the rule to permit a court to find a pro se
litigant 	vexatious 	based 	on 	that 	litigant’s 	history 	in 	other
lawsuits, even if the litigant has done nothing amiss in the case
pending before the court.
¶11 	We understand the district court’s concern that it may not
be well positioned to evaluate a litigant’s conduct in other cases.
But as noted above, rule 83(c) permits a court to make vexatious
litigant findings only by clear and convincing evidence. See id.
R. 83(c)(1). Those findings may well be easier to make where the
court has observed the litigant’s vexatious conduct firsthand. But
the rule quite rationally draws the line not between vexatious
conduct committed in the pending action and vexatious conduct
committed elsewhere, but between vexatious conduct established
by clear and convincing evidence and vexatious conduct that is
not proven to that standard.

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20151016-CA 	5 	2017 UT App 55
II. Rule 83(a)(1)(C)
¶12 	Nupetco also contends that the district court misread the
phrase in any action as used in rule 83(a)(1)(C). Rule 83(a)(1)(C)
permits a court to declare a pro se litigant vexatious if the
litigant, 	acting 	without 	legal 	representation, 	files 	improper
pleadings or papers three or more times “[i]n any action”:
In any action, the person three or more times does
any one or any combination of the following:
(i) files unmeritorious pleadings or other papers,
(ii) files pleadings or other papers that contain
redundant, immaterial, impertinent or scandalous
matter,
(iii) conducts unnecessary discovery or discovery
that is not proportional to what is at stake in the
litigation, or
(iv) engages in tactics that are frivolous or solely
for the purpose of harassment or delay.
Utah R. Civ. P. 83(a)(1)(C). In the district court, Nupetco argued
that Strand qualified as vexatious under this subsection because
he filed unmeritorious pleadings or other papers three or more
times in lawsuits other than the present one. Based on this
conduct, 	Nupetco 	maintains, 	the 	district 	court 	should 	have
found that Strand had violated rule 83(a)(1)(C).
¶13 	The district court concluded that “the language ‘in any
action’ allows the Court to review only [Strand’s] filings in the
action in which the Rule 83 motion was brought.” The court
declined to review Strand’s conduct in the other lawsuits and
determined that on the basis of his actions in the present case, he
did not qualify as a vexatious litigant under rule 83.

Strand v. Nupetco Associates
20151016-CA 	6 	2017 UT App 55
¶14 	On appeal, Nupetco challenges the district court’s reading
of rule 83(a)(1)(C). Nupetco contends that the phrase in any
action indicates that the three or more offending filings need not
be filed in the action in which the vexatious litigant motion is
filed. Again, we agree.
¶15 	Nupetco’s argument with respect to the phrase in any
action is straightforward: any means any. If a pro se litigant may
be found vexatious based on filings made in any action, the
filings need not have been made in the same action in which the
vexatious litigant motion is filed. We agree with this reading of
the rule. The text of rule 83(a)(1)(C) requires only that, “[i]n any
action, the person three or more times does any one or any
combination of” certain specified acts. Utah R. Civ. P. 83(a)(1)(C).
Again, the text of the rule does not limit the court’s inquiry to
the pending action. And again, this phrasing contrasts with
other subsections of rule 83 that expressly refer to “the pending
action.” Compare id., with id. R. 83(d)(3), and id. R. 83(e)(1). We
accordingly read the rule to permit a court to find a pro se
litigant 	vexatious 	based 	on 	that 	litigant’s 	history 	in 	other
lawsuits, even if the litigant has done nothing amiss in the case
pending before the court.
¶16 	Again, we recognize the district court’s concerns. The
court reasoned that, “[a]s a practical matter, it would be difficult
and unwise for the court to review and determine whether a
party’s tactics were intended to harass, or his discovery requests
were disproportionate in a case not before it.” That is so, the
court continued, because “[t]he judge presiding over a particular
action is in the best position to determine the necessity of a
party’s discovery and his tactics, as well as the merit and
appropriateness of the content of his pleadings.” We agree with
the district court that the required findings may well be easier to
make where the court has observed the litigant’s vexatious
conduct firsthand. But again, the rule focuses not on where the

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20151016-CA 	7 	2017 UT App 55
vexatious conduct occurred, but whether it can be established by
clear and convincing evidence.2
¶17 	We will ordinarily construe a procedural rule “to mean
exactly what it says,” see First Equity Federal, Inc. v. Phillips Dev.,
LC, 2002 UT 56, ¶ 16, 52 P.3d 1137, applying the text of the rule,
not necessarily its policy, see Rothstein v. Snowbird Corp., 2007 UT
96, ¶ 10, 175 P.3d 560 (discussing the interpretation of statutes).
And we have difficulty reading the phrase in any action to mean
in this action. The sweep of the rule is broad.
¶18 	But it is not without limit. As we read the rule, the three
or more required acts must all occur in the same lawsuit. The
text of rule 83(a)(1)(C) requires that, “[i]n any action, the person
three or more times does any one or any combination of” certain
specified acts. Utah R. Civ. P. 83(a)(1)(C). Although the acts are
plural—“three or more times”—the action is singular. See id.
Thus, just as we concluded that any means any, we likewise
conclude that action means action—not actions.
¶19 	To be found vexatious, then, the court must find by clear
and convincing evidence that the pro se litigant committed three
or more proscribed acts in any one action, though not necessarily
the action in which the vexatious litigant motion is filed.
III. Remand
¶20 	On appeal, Nupetco asks us to interpret rule 83(a)(1),
which we have done. Nupetco also asks us to examine Strand’s
litigation history and declare that he is a vexatious litigant or,
2. Moreover, rules 83(e) and 83(f) make clear that, once entered,
the reach of a vexatious litigant order is statewide, lending
support to the notion that the judge considering the order
should be able to consider statewide conduct in determining
whether to enter it. See Utah R. Civ. P. 83(e), (f).

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alternatively, to remand the matter to the district court to decide
whether he is a vexatious litigant under a proper reading of rule
83. We take the latter course. We leave it to the district court to
make—or not—the required findings under rule 83 as clarified
on appeal. We accordingly vacate the district court’s denial of
the vexatious litigant motion and remand the matter to that
court to determine the rule 83 question and to conduct further
proceedings in the case as appropriate.