2017 UT App 55

THE UTAH COURT OF APPEALS

MICHAEL STRAND,

Appellee,

v.

NUPETCO ASSOCIATES 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. FREDERIC VOROS JR. authored this Opinion, in which 

JUDGES DAVID N. MORTENSEN 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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20151016-CA 3 2017 UT App 55

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.
Strand v. Nupetco Associates

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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.
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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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20151016-CA 8 2017 UT App 55

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.