NPEC LLC v. Miller ( 2018 )


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    2018 UT App 85
    THE UTAH COURT OF APPEALS
    NPEC LLC, FLUENT HOME LLC, JACK ELBAUM, GRAHAM WOOD,
    AND KRISTI BETTRIDGE,
    Appellees,
    v.
    GREGORY RYAN MILLER,
    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. ORME, MICHELE M. CHRISTIANSEN, and
    KATE 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…)
    NPEC v. Miller
    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.
    20170635-CA                     2                 
    2018 UT App 85
    NPEC v. Miller
    ¶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
    20170635-CA                     3                 
    2018 UT App 85
    NPEC v. Miller
    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.
    20170635-CA                      4                 
    2018 UT App 85
    NPEC v. Miller
    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.
    20170635-CA                     5                
    2018 UT App 85
    NPEC v. Miller
    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
    20170635-CA                     6                 
    2018 UT App 85
    NPEC v. Miller
    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.
    20170635-CA                     7              
    2018 UT App 85
                                

Document Info

Docket Number: 20170635-CA

Judges: Orme, Christiansen, Toomey

Filed Date: 5/10/2018

Precedential Status: Precedential

Modified Date: 3/2/2024