2014 UT App 247

_________________________________________________________

THE UTAH COURT OF APPEALS

CANDACE PETERSON,

Petitioner and Appellee,

v.

JOHN ANDREW ARMSTRONG,

Respondent and Appellant.

Memorandum Decision

No. 20130039-CA

Filed October 17, 2014

Fourth District Court, Provo Department

The Honorable Fred D. Howard

No. 120401455

Brent D. Young and Dallas B. Young, Attorneys

for Appellant

Gregory N. Skabelund, Attorney for Appellee

SENIOR JUDGE PAMELA T. GREENWOOD authored this

Memorandum Decision, in which SENIOR JUDGE RUSSELL W.

BENCH concurred. JUDGE JOHN A. PEARCE dissented, 1

with opinion.

GREENWOOD, Senior Judge:

¶1 John Andrew Armstrong (Husband) appeals from the

Fourth District Court’s order entering a civil stalking injunction

against him and in favor of Candace Peterson (Grandmother).

1. The Honorable Pamela T. Greenwood and Russell W. Bench,

Senior Judges, sat by special assignment as authorized by law. See

generally Utah R. Jud. Admin. 11-201(6).
Peterson v. Armstrong

Husband argues that principles of res judicata bar the court from

issuing the injunction. We agree and reverse.

¶2 Grandmother is Husband’s former mother-in-law. Now 2

divorced fromone another,Husbandand Grandmother’s daughter

(Mother) have two children, and Grandmother often cares for the

children when they are in Mother’s custody. Grandmother and

Mother reside in Cache County, and Husband resides in Utah

County.

¶3 In April 2009, Grandmother and Husband were involved in

a situation that resulted in Grandmother calling the police (the 2009

Incident). It began when Husband came to Grandmother’s home

to pick up the children and parked his car on the private land in

front of the home. Husband called Grandmother and she informed

him that Mother and the children were not there. Grandmother

then requested that Husbandleaveher property. Husband refused.

After Grandmother called for help, the police responded and

escorted Husband from the premises.

¶4 In April 2012, the parties were engaged in another dispute

involving the police (the 2012 Incident). As with the 2009 Incident,

this episode began when Husband came to pick up the children

from Grandmother. After some confusion about where Husband

and Grandmother would meet to exchange the children, Husband 3

followed Grandmother and the children in his vehicle as they

drove from one location to another. While driving, Husband

2. We recite the facts as found by the Fourth District Court. See Bott

v. Osburn, 2011 UT App 139, ¶ 2 n.1, 257 P.3d 1022.

3. In November 2011, the Fourth District Court issued a civil

stalking injunctionagainst Grandmother that restrained her contact

with Husband but allowed curbside exchanges. Some of the

confusion during the 2012 Incident resulted from Grandmother’s

inability to contact Husband herself and the fact that Husband did

not want to lure Grandmother into violating the injunction.

20130039-CA 2 2014 UT App 247
Peterson v. Armstrong

contacted the police, who instructed him to stop following

Grandmother. Nevertheless, Husband continued to follow

Grandmotherfor approximately twentyminutes.Eventually, when

Grandmother reached her destination, the children walked to

Husband’s car and into Husband’s custody without further

incident.

¶5 Approximately four months later, on August 24, 2012,

Grandmother filed a request for a civil stalking injunction against

Husband in the First District Court (the First District Court Case).

In her petition, Grandmother described the 2009 Incident and the

2012 Incident, as well as two other alleged contacts, as stalking

events. Without holding a hearing, the First District Court issued 4

an order denying Grandmother’s request for an ex parte civil

stalking injunction. The First District Court’s order indicated that

the events described by Grandmother were not stalking because

“the last episode was April 27, 2012 [and Grandmother] is seeking

a stalking injunction 4 months later so no immediate fear or alleged

threats.” The court’s order continued, “[Grandmother] may

consider other legal proceedings to restrain [Husband’s] alleged

conduct.”

¶6 Seventeen days later, Grandmother filed a second request

for a civil stalking injunction, this time in the Fourth District Court

(the Fourth District Court Case). Grandmother’s petition again 5

described the 2009 Incident and the 2012 Incident as stalking

4. An ex parte civil stalking injunction may be issued by the court

without a hearing or notice. Utah Code Ann. § 77-3a-101(5)(a)

(LexisNexis 2012).

5. “[I]f there is a prior court order concerning the same conduct,”

the Utah Code requires the petition to include the name of the

court in which the prior order was rendered. Id. § 77-3a-101(4)(d).

Grandmother’s Fourth District petition disclosed the November

2011 stalking injunction against her but did not disclose the First

District Court Case.

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Peterson v. Armstrong

events. Grandmother also alleged six other stalking incidents in

support of her petition. The Fourth District Court issued an ex

parte temporary civil stalking injunction that was served on

Husband. Within ten days, Husbandrequested a hearing. Husband

also filed a motion to dismiss the stalking injunction, arguing that

Grandmother’s petition was not made in good faith because the

First District Court had denied a similar petition, which relied upon

the same incidents as the petition filed in the Fourth District Court.

Grandmother opposed the motion, acknowledging that the 2009

Incident and the 2012 Incident had been raised in the petition filed

in the First District Court but arguing that the First District Court

made no decision on the merits of the request.6

¶7 The Fourth District Court held an evidentiary hearing on

November 9, 2012. At the end of the hearing, the court denied

Husband’s motion to dismiss, declaring that the denial of

Grandmother’s application for anex parte stalking injunction in the

First District Court did not constitute an adjudicatory proceeding

that rose to the level of res judicata or collateral estoppel. After

hearing the evidence, the Fourth District Court found “reason to

believe” that the stalking had occurred. The court made findings

regarding the 2009 Incident and the 2012 Incident, and determined

that both episodes constituted stalking. The court did not address

the six other incidents that Grandmother alleged in her petition.7

The Fourth District Court granted the stalking injunction against

Husband. Husband appeals.

6. Husband’s motion argued that Grandmother’s petition relied on

the same incidents, but he did not use the terms res judicata, claim

preclusion, or issue preclusion. Grandmother’s memorandum

argued that claim preclusion was the relevant issue.

7. The district court referred to an August 2009 incident (one of the

six other alleged incidents) during which Husband threatened

Grandmother and her husband in front of Husband’s home. Unlike

the 2009 Incident and the 2012 Incident, however, the court’s order

did not state that the August 2009 incident was stalking.

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Peterson v. Armstrong

¶8 Husband challenges the Fourth District Court’s grant of the

stalking injunction, arguing that the First District Court’s dismissal

of Grandmother’s earlier petition barred the Fourth District Court

from issuing an injunction predicated upon the same alleged

stalking events. Whether res judicata bars an action presents a

question of law. Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93,

¶ 17, 16 P.3d 1214. We review the district court’s decision on a

question of law for correctness. Id. Husband also argues that the

Fourth District Court should have granted his request for attorney

fees and that he should be awarded fees incurred on appeal.

¶9 We begin by outlining the statutory procedures for

obtaining a civil stalking injunction. Under Utah law, a person who

believes he or she is the victim of stalking “may file a verified

written petition for a civil stalking injunction against the alleged

stalker with the district court in the district in which the petitioner

or respondent resides or in which any of the events occurred.”

Utah Code Ann. § 77-3a-101(2) (LexisNexis 2012). The court may 8

issue an ex parte civil stalking injunction if it “determines that there

is reason to believe that an offense of stalking has occurred.” Id. § 77-

3a-101(5)(a) (emphasis added). The ex parte injunction must be

served on the respondent, and if the respondent requests an

evidentiary hearing within ten days of service, the court shall hold

a hearing, after which the court may modify, revoke, or continue

the injunction. Id. § 77-3a-101(6)–(7). For the court to enter a

permanent injunction, “[t]he burden is on the petitioner to show by

8. The Administrative Office of the Courts is required to provide

forms andassistance forpersons filing ex parte stalking injunctions,

see Utah Code Ann. § 77-3a-101(3) (LexisNexis 2012), and the

relatively low proof standard threshold allows some flexibility in

granting the same, cf. Wilker v. Wilker, 630 N.W.2d 590, 595 (Iowa

2001) (“Out of necessity domestic abuse procedures are routinely

instigated upon a pro se petition and consequently, . . . some

leeway must be accorded from precision draftsmanship.” (omission

in original) (citation and internal quotation marks omitted)).

20130039-CA 5 2014 UT App 247
Peterson v. Armstrong

a preponderance of the evidence that stalking of the petitioner by the

respondent has occurred.” Id. § 77-3a-101(7) (emphasis added). For

purposes of the statute governing civil stalking injunctions,

[a] person is guilty of stalking who intentionally or

knowingly engages in a course of conduct directed at

a specific person and knows or should know that the

course of conduct would cause a reasonable person:

(a) to fear for the person’s own safety or the safety of

a third person; or (b) to suffer other emotional

distress.

Id. § 76-5-106.5(2).

¶10 Husband argues that res judicata barred the Fourth District

Court from issuing a civil stalking injunction based upon the same

two events as were alleged in Grandmother’s unsuccessful petition

filed in the First District Court. Res judicata refers to “the overall

doctrine of the preclusive effects to be given to judgments.” Moss

v. Parr Waddoups Brown Gee & Loveless, 2012 UT 42, ¶ 20, 285 P.3d

1157 (citation and internal quotation marks omitted). There are two

branches of res judicata: claim preclusion and issue preclusion. Id.

“Claim preclusion corresponds to causes of action; issue preclusion

corresponds to the facts and issues underlying causes of action.” Id.

(citation and internal quotation marks omitted).

¶11 Claim preclusion “bars a party from prosecuting in a

subsequent action a claim that has been fully litigated previously.”

State v. Sommerville, 2013 UT App 40, ¶ 30, 297 P.3d 665 (citation

and internal quotation marks omitted). A prior judgment has a

preclusive effect when a laterlawsuit “is entirely predicated on the

same set of operative facts and the same alleged injury.” Nipper v.

Douglas, 2004 UT App 118, ¶ 10, 90 P.3d 649. In other words, claim

preclusion applies when “the issues are the same, the facts are the

same, and the evidence is the same as in the previous litigation.” Id.

¶ 11 (citation and internal quotation marks omitted). Claim

preclusion applies when three elements are satisfied:

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(1) both suits must involve the same parties or their

privies, (2) the claim that is alleged to be barred must

have been presented in the first suit or be one that

could and should have been raised in the first action,

and (3) the first suit must have resulted in a final

judgment on the merits.

Moss, 2012 UT 42, ¶ 21 (citation and internal quotation marks

omitted). The third element is relevant to both claimpreclusion and

issue preclusion because “both . . . require that the first suit must

have resulted in a final judgment on the merits.” Sommerville, 2013 9

UT App 40, ¶ 31 (citation and internal quotation marks omitted).

In this case, Husband and Grandmother agree that the first two

elements of claim preclusion are satisfied. Thus, we focus our

analysis on the third element of claim preclusion—whether the

action in the First District Court resulted in a final judgment on the

merits.

9. The four elements of issue preclusion are

(i) the party against whom issue preclusion is

asserted was a party to or in privity with a party to

the prior adjudication; (ii) the issue decided in the

prior adjudication was identical to the one presented

in the instant action; (iii) the issue in the first action

was completely, fully, and fairly litigated; and (iv)

the first suit resulted in a final judgment on the

merits.

Moss v. Parr Waddoups Brown Gee & Loveless, 2012 UT 42, ¶ 23, 285

P.3d 1157 (citation and internal quotation marks omitted). Our

supreme court has stated, “The minimum reach of issue preclusion

beyond precise repetition of the first action is to prevent relitigation

by mere introduction of cumulative evidence bearing on a simple

historical fact that has once been decided.” Harline v. Barker, 912

P.2d 433, 443 (Utah 1996) (citation and internal quotation marks

omitted).

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Peterson v. Armstrong

¶12 Husband argues that the denial of the First District Court ex

parte petition for a civil stalking injunction barred the matter from

going forward in a different district court and ended the

controversy between the parties as to the allegations in the first

petition. Husband contends that the First District Court’s denial of

Grandmother’s ex parte petition was a final judgment on the merits

because the court determined that Grandmother had not met her

burden to show that the offense of stalking had occurred. Husband

further argues that “[i]f the evidence presented cannot satisfy the

[reason to believe] standard in the absence of any adversarial

proceedings [in the First District Court], such a finding is

necessarily a finding that the evidence cannot satisfy the

preponderance ofthe evidence standardat an adversarial hearing.”

Thus, according to Husband, the First District Court’s

determination that Grandmother did not meet the “reason to

believe” standard should be binding and preclude the Fourth

District Courtfrom later determining that Grandmother had shown

by a preponderance of the evidence that stalking had occurred.10

¶13 In contrast, Grandmother argues that the First District

Court’s denial of her first petition did not constitute a final

judgment on the merits because Husband did not make an

appearance. Grandmother further contends that the First District

Court’s denial of her first petition was not a judgment on the merits

because the court stated in its order that she “may consider other

10. Husband also argues that the Fourth District Court applied the

wrong standard of proof—the reason to believe standard—in

issuing the civil stalking injunction after the evidentiary hearing.

That argument appears to have merit because the lesser reason to

believe standard applies to the issuance of an ex parte injunction

only. See Utah Code Ann. § 77-3a-101(5)(a), (6)(a), (7) (LexisNexis

2012). However, that distinction, while important, is not relevant

to our analysis, because our focus is on the applicability of claim

preclusion as to the ex parte order, not the permanent injunction

after notice and a hearing.

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Peterson v. Armstrong

legal proceedings to restrain [Husband’s] alleged conduct.”

According to Grandmother, this language meant that the First

District Court’s “decision declin[ed] to reach the merits based on

[the] availability of an alternative remedy.”

¶14 “A judgment is upon the merits when it amounts to a

declaration of the law as to the respective rights and duties of the

parties based on . . . facts and evidence upon which the rights of

recovery depend, irrespective of formal, technical, or dilatory

objections or contentions.” Sommerville, 2013 UT App 40, ¶ 32

(omission in original) (citation and internal quotation marks

omitted).

To be on the merits, a judgment does not have to

proceed to trial. Rather, a judgment on the merits

may be made at any stage of the litigation, so long as

. . . [the judgment rendered is] based upon a proper

application of the relevant law to the facts of the case.

Id. (alteration and omission in original) (citation and internal

quotation marks omitted). Furthermore, “[a] judgment is on the

merits if it completely disposes of an underlying cause of action, or

determines that plaintiff has no cause of action.” Dennis v. Vasquez,

2003 UT App 168, ¶ 8, 72 P.3d 135 (emphasis omitted) (citation and

internal quotation marks omitted).11

11. “‘[O]n the merits’ is a term of art that means that a judgment is

rendered only after a court has evaluated the relevant evidence and

the parties’ substantive arguments.” State v. Sommerville, 2013 UT

App 40, ¶ 32, 297 P.3d 665 (citation and internal quotation marks

omitted) (concluding that a voluntary dismissal of charges did not

involve the justice court’s application of the relevant law to the

facts of the case); see also In re D.A., 2009 UT 83, ¶ 37, 222 P.3d 1172

(indicating that a matter is not adjudicated on the merits when the

court’s decision involves “matters of form rather than

(continued...)

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Peterson v. Armstrong

¶15 The parties have pointed us to little case law in this area, and

we have not located any Utah appellate court decisions involving

the application of res judicata in the context of a civil stalking

injunction. However, case law from other jurisdictions indicates

that claim preclusion may be applied when a second civil stalking

petition is filed following the denial of a similar petition. See, e.g.,

Tortorello v. Tortorello, 153 P.3d 1117, 1122–24 (Haw. 2007)

(affirming the application of res judicata because “the claim

decided in Petition I is identical with the one presented in

Petition II,” and concluding that the intermediate court of appeals

did not err in holding that res judicata applies to “protective order

cases filed by the same petitioner against the same respondent

where the second case is based on events that occurred, and that

the petitioner knew about, prior to the filing of the first petition”

(citation and internal quotation marks omitted)). The Ohio Court

of Appeals applied claim preclusion in Bumgardner v. Bumgardner,

No. CA2004-07-172, 2005 WL 1545790 (Ohio Ct. App. July 5, 2005).

There, the domestic relations commissioner denied the petitioner’s

first petition for a civil protection order due to the lack of evidence.

Id. at *1. The petitioner nevertheless filed a second petition, which

alleged some facts concerning events that occurred subsequent to

the dismissal of her first petition and reiterated the allegations

made in support of her first petition. Id. After the commissioner

denied the second petition basedonclaimpreclusion, the petitioner

appealed. Id. The Bumgardner court ultimately affirmed the

dismissal of the petitioner’s second petition. Id. at *3. The court

reasoned that the petitioner failed to present evidence that the

respondent placed her in fear of harm and that claim preclusion

applied because the petitioner’s fear of the respondent was “solely

based on the events alleged in [the petitioner’s] first petition.” Id.

at *2.

11. (...continued)

considerations of substance and legal rights” (citation and internal

quotation marks omitted)).

20130039-CA 10 2014 UT App 247
Peterson v. Armstrong

¶16 Decisions from other courts indicate that claim preclusion is

not appropriately applied when the second petition involves

allegations of stalking events that occurred after the first petition

was dismissed. See White v. Bain, 2008 SD 52, ¶ 21, 752 N.W.2d 203

(per curiam) (“Because of [the respondent’s] subsequent acts [of

harassment] . . . we hold that res judicata did not bar the second

action or the trial court from considering [the evidence presented

in the first action] as part of the basis for determining that stalking

took place.”); see also Goldfuss v. Traxler, No. 16-08-12, 2008 WL

5053451, at *5–6 (Ohio Ct. App. Dec. 1, 2008) (concluding that res

judicata did not preclude a later civil protection order because the

petitioner’s second petition alleged facts concerning events that

occurred subsequent to the dismissal of her first petition); Moore v.

Moore, No. 02CA0071, 2003 WL 21658466, at *1 (Ohio Ct. App. July

16, 2003) (affirming the issuance of a civil protection order and

ruling that res judicata did not apply “[b]ecause the trial court

based its decision upon evidence that was not previously

adjudicated”). This approach addresses the “unique considerations

in applying normal principles of res judicata to claims arising out

of continuing orrenewed conduct,” such as claims of civil stalking.

White, 2008 SD 52, ¶ 18.

¶17 Furthermore, we are not persuaded by Grandmother’s

argument that there was no final judgment in the First District

Court because Husband did not appear. First, contrary to

Grandmother’s claim, the appearance of all parties is not a

prerequisite for a judgment to be a final judgment on the merits for

the purposes of claim preclusion. Cf. State v. Sommerville, 2013 UT 12

12. Grandmother also argues that the First District Court’s denial

of her first petition was not a final judgment on the merits because

the court did not hold an evidentiary hearing before ruling.

However, the fact that the First District Court did not hold an

evidentiary hearing does not defeat the application of claim

preclusion. Our supreme court’s case law indicates that an

(continued...)

20130039-CA 11 2014 UT App 247
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App 40, ¶ 32, 297 P.3d 665 (“To be on the merits, a judgment does

not have to proceed to trial. Rather, a judgment on the merits may

be made at any stage of the litigation . . . .” (citation and internal

quotation marks omitted)). All that is required is that the party

seeking to invoke claim preclusion must establish that the earlier

suit involved “the same parties or their privies and the same cause

of action.” Buckner v. Kennard, 2004 UT 78, ¶ 12, 99 P.3d 842. As a

consequence, the finality of the Fourth District Court’s denial of

Grandmother’s first petition is not negated by the fact that

Husband did not appear.

13

12. (...continued)

evidentiary hearing is not required forres judicata to apply because

an earlier action may bar a later action even if the first action was

resolved on the allegations in the pleadings alone, i.e., without an

evidentiary hearing. For example, our supreme court adopted the

reasoning of the federal district court for the district of Utah, which

reasoned that “‘[a] motion to dismiss for failure to state a claim

upon which relief can be granted . . . [is a] dismissal . . . on the

merits and is accorded res judicata effect.’” See Mack v. Utah State

Dep’t of Commerce, 2009 UT 47, ¶ 29, 221 P.3d 194 (second alteration

and omissions in original) (quoting FDIC v. Paul, 735 F. Supp. 375,

380 (D. Utah 1990)); see also Utah R. Civ. P. 12(b) (indicating that a

rule 12(b)(6) motion to dismiss for failure to state a claim is

evaluated on matters within the pleadings).

13. Moreover, Grandmother had an opportunity to appear and

present allegations and evidence. See Utah Code Ann. § 77-3a101(4) (LexisNexis 2012) (requiring a petition for a civil stalking

injunction to include “specific events and dates of the actions

constituting the alleged stalking” and “corroborating evidence of

stalking, which may be in the form of a police report, affidavit,

record, statement, item, letter, or any other evidence which tends

to prove the allegation of stalking”); cf. 3D Constr. & Dev., LLC v.

Old Standard Life Ins. Co., 2005 UT App 307, ¶ 19, 117 P.3d 1082

(continued...)

20130039-CA 12 2014 UT App 247
Peterson v. Armstrong

¶18 We also are not convinced that the First District Court’s

statement that Grandmother may consider otherlegal proceedings

meant that the First District Court did not reach the merits of

Grandmother’s first petition. Rather, we believe that

Grandmother’s proposed interpretation is far from obvious and

highly speculative. After the First District Court’s denial of

Grandmother’s first petition, Grandmother could have filed a later

petition upon the subsequent occurrence of additional alleged

stalking events. See White, 2008 SD 52, ¶¶ 20–21. Grandmother

would be precluded from alleging other acts of stalking that

occurred prior to the First District petition because she could and

should have raised them in that petition. Had she done so,

Grandmother could have presented the other events as part of the

course of conduct. See id. ¶ 20 (“[E]vidence of underlying activity

from a prior claim may be admissible to prove a new claim.”). In

any event, the First District Court’s reference to “other legal

proceedings” is, at most, an advisory opinion. See Summit Water

Distrib. Co. v. Summit County, 2005 UT 73, ¶ 50, 123 P.3d 437 (“Our

settled policy is to avoid giving advisory opinions in regard to

issues unnecessary to the resolution of the claims before us.”);

Reynolds v. Reynolds, 788 P.2d 1044, 1045 (Utah Ct. App. 1990)

(noting that the function of courts is not to give opinions on merely

abstract or theoretical matters).14

13. (...continued)

(rejecting plaintiff’s argument that the fully and fairly litigated

prong of issue preclusion requires an actual trial or its equivalent

and instead concluding that Utah’s case law supports the view that

“this element is met if the party against whom issue preclusion is

sought had adequate notice and an opportunity to litigate the

issue”).

14. We find Grandmother’s reliance on Fundamentalist Church of

Jesus Christ of Latter-Day Saints v. Horne, 2012 UT 66, 289 P.3d 502,

to be unavailing. Grandmother argues that this case stands for the

(continued...)

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Peterson v. Armstrong

¶19 Under the circumstances of this case, we conclude that the

First District Court’s denial of Grandmother’s first petition for a

civil stalking injunction was a final judgment on the merits. Based

on the allegations and evidence attached to Grandmother’s first

request, the First District Court determined that the events

described were not stalking events because Husband “did not

make any threats, and no threats were implied by [Husband’s]

conduct.” The First District Court also determined that

Grandmother did not have any immediate fear because the most

recent alleged stalking event occurred four months earlier. In

ruling that an ex parte stalking injunction would not be issued, the

First District Court necessarily concluded that Grandmother had

not shown reason to believe that Husband had engaged in a course

of conduct against her that “would cause a reasonable person: (a)

to fear for the person’s own safety or the safety of a third person;

or (b) to suffer other emotional distress.” See Utah Code Ann. § 76-

5-106.5(2) (LexisNexis 2012); see also id. § 77-3a-101(5)(a). As a

14. (...continued)

proposition that “[a] decision declining to reach the merits based

on [the] availability of an alternative remedy . . . is not preclusive.”

In that case, the Utah Supreme Court addressed the preclusive

effect of its prior decision dismissing a petition for extraordinary

writ on laches grounds. Id. ¶ 53. Petitions for extraordinary writ are

typically available only when “no other plain, speedy and adequate

remedy is available,” i.e., when a petitioner has no other alternative

remedy. Utah R. Civ. P. 65B(a). In ruling that its prior decision

would preclude a subsequent claim, the supreme court explained

that it “did not dismiss the petition in [the earlier case] based on the

availability of an alternative remedy.” Horne, 2012 UT 66, ¶ 19.

Rather, the court deemed its dismissal of the earlier case as a

preclusive judgment on the merits because it had dismissed the

earlier case “in light of [its] resolution of the merits of the

respondents’ affirmative defense of laches.” Id. Given the unique

context of Horne, we are not persuaded by Grandmother’s

interpretation and application of Horne to the case before us.

20130039-CA 14 2014 UT App 247
Peterson v. Armstrong

result, the First District Court determined that the 2009 Incident

and the 2012 Incident were not stalking events justifying the

issuance of an ex parte stalking injunction and possible further

proceedings. Thus, the First District Court’s denial of

Grandmother’s first petition involved the “application of the

relevant law to the facts of the case,” see Sommerville, 2013 UT App

40, ¶ 32 (citation and internal quotation marks omitted), and

therefore rendered a final judgment on the merits.

¶20 After a court determines that a petitioner failed to show

reason to believe that an offense of stalking has occurred, the

court’s denial of a ex parte stalking petition is final because no

further proceedings are contemplated by the civil stalking statute.

15

See Utah Code Ann. § 77-3a-101. In contrast, when a district court

issues an ex parte civil stalking injunction, further proceedings are

allowed under the statute because the respondent has the option of

requesting an evidentiary hearing before the ex parte injunction

automatically becomes a three-year civil stalking injunction. See id.

§ 77-3a-101(6). But where, as here, the court reviewed the evidence

and determined that a petitioner did not satisfy the initial burden

of showing reason to believe there has been stalking, the petitioner

has no basis upon which the requested relief—the issuance of a

stalking injunction—can be granted.

¶21 Due to the First District Court’s implicit determination that

the 2009 Incident and the 2012 Incident were not stalking events,

15. The Cohabitant Abuse Act, which governs the issuance of

protective orders, stands in contrast to the civil stalking statute

because it does provide for additional proceedings when an ex

parte petition for a protective order is denied. Specifically, the

Cohabitant Abuse Act instructs, “When a court denies a petitionfor

an ex parte protective order . . . , upon the request of the petitioner,

the court shall set the matter for hearing and notify the petitioner

and serve the respondent.” Utah Code Ann. § 78B-7-107(3)

(LexisNexis 2012).

20130039-CA 15 2014 UT App 247
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the Fourth District Court was precluded from granting a civil

stalking injunction solely based on the same two events. Although

Grandmother alleged more details regarding those two particular

incidents and she alleged six other stalking events in the second

petition, the Fourth District Court only made findings regarding

the 2009 Incident and the 2012 Incident—the same two incidents

that the First District Court ruled were not stalking events. And

unlike the cases where the petitioner alleged additional stalking

events that occurred subsequent to the denial of a first request for

an injunction, see, e.g., White v. Bain, 2008 SD 52, ¶¶ 20–21, 752

N.W.2d 203 (per curiam), Grandmother did not allege any stalking

events that occurred between the time of her first petition and her

second petition. Rather, Grandmother’s additional allegations in

the second petition were based on events that predated the First

District Court’s denial of her first petition. Grandmother could

have raised the additional details and six other alleged events in

her first petition and her failure to do so in the First District Court

does not justify her refiling in the Fourth District Court. Cf. Nipper

v. Douglas, 2004 UT App 118, ¶ 10, 90 P.3d 649 (“Not only does

claim preclusion prevent relitigation of a claim, it also prevents the

litigation of claims that could and should have been litigated in the

prior action, but were not.” (citation and internal quotation marks

omitted)). Because we conclude that claim preclusion bars

Grandmother’s action in the Fourth District Court, we do not reach

Husband’s issue preclusion argument. See Mack v. Utah State Dep’t

of Commerce, 2009 UT 47, ¶ 26, 221 P.3d 194; Hansen v. Bank of N.Y.

Mellon, 2013 UT App 132, ¶ 5 n.1, 303 P.3d 1025.

¶22 Finally, Husband requests an award of attorney fees and

asks us to remand this case with instructions for the district court

to consider awarding him attorney fees incurred both at the district

court and on appeal. The civil stalking statute provides district

courts with discretion to award reasonable attorney fees to either

party. Butters v. Herbert, 2012 UT App 329, ¶ 20, 291 P.3d 826; see

also Utah Code Ann. § 77-3a-101(16) (LexisNexis 2012) (“After a

hearing with notice to the affected party, the court may enter an

order requiring any party to pay the costs of the action, including

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reasonable attorney fees.”). We have previously explained that this

section is “permissive in nature, providing the trial court with the

discretion to determine whether to award attorney fees.” Ellison v.

Stam, 2006 UT App 150, ¶ 46, 136 P.3d 1242. In his motion to

dismiss, Husband requested an award of attorney fees incurred in

defending the action. Husband cited section 77-3a-101(16), but his

argument focused on his assertion that Grandmother’s claims were

not brought in good faith. In granting Grandmother’s petition, the

district court did not address Husband’s request. Because we

reverse the district court’s decision to issue the stalking injunction,

we remand with instructions for the district courtto consider under

the statute whether to award Husband the attorney fees he

incurred at the district court and on appeal.

¶23 In summary, the Fourth District Court erred in issuing the

stalking injunction against Husband because the First District

Court’s denial of Grandmother’s petition had preclusive effect. We

therefore reverse and remand.

PEARCE, Judge (dissenting):

¶24 Because Husband failed to meet his burden of

demonstrating that the denial of Grandmother’s initial ex parte

petition for a civil stalking injunction constituted a final judgment

on the merits, I respectfully dissent.

¶25 Grandmother argues that the denial of an ex parte civil

stalking injunction petition can never be considered a final

judgment. The district court appeared to accept that argument,

stating, “I don’t view the denial of the ex parte, the application for

the stalking injunction to constitute an adjudicatory proceeding

that would rise to the level of collateral estoppel or res judicata.”

The majority persuasively holds that, contrary to Grandmother’s

assertion, in some instances the denial of an ex parte civil stalking

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Peterson v. Armstrong

petition can act as a final judgment for claim preclusion purposes.16

That, however, does not resolve the question of whether Husband

met his burden of establishing that the denial the First District

Court issued was a final judgment on the merits.

¶26 A party seeking to invoke collateral estoppel must prove

each of its elements. Busch v. Busch, 2003 UT App 131, ¶ 6, 71 P.3d

177. As a result, Husband bore the burden of establishing that the

denial of Grandmother’s initial petition constituted a “final

judgment on the merits.” See, e.g., Moss v. Parr Waddoups Brown Gee

& Loveless, 2012 UT 42, ¶ 21, 285 P.3d 1157 (citation and internal

quotation marks omitted). Husband did not even attempt to meet

this burden in the district court. His motion to dismiss

Grandmother’s second petition did not use the terms “res

judicata,” “collateral estoppel,” “issuepreclusion,” or “final order.”

Instead he argued that the petition filed in the Fourth District Court

was “judge shopping.” Husband made the same argument at the

motion hearing, repeating his assertionthat Grandmother’s second

petition should be dismissed because “[i]t’s clearly judge

shopping.”

¶27 Had he tried, Husband would have been unable to shoulder

his burden of demonstrating that the denial was a final judgment

on the merits. “‘On the merits’ is a term of art that means that a

judgment is rendered only after a court has evaluated the relevant

evidence and the parties’ substantive arguments.” State v.

Sommerville, 2013 UT App 40, ¶ 32, 297 P.3d 665 (citation and

16. The majority opinion does not reach the question of whether the

denial of a petition for an ex parte civil stalking injunction could

ever be considered to have “completely, fully, and fairly litigated”

the issues raised in a civil stalking injunction petition for issue

preclusion purposes. See Moss v. Parr Waddoups Brown Gee &

Loveless, 2012 UT 42, ¶ 23, 285 P.3d 1157 (citation and internal

quotation marks omitted).

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internal quotation marks omitted). A final judgment on the merits

“ends the controversy between the parties.” Salt Lake City Corp. v.

Layton, 600 P.2d 538, 539 (Utah 1979). A judgment is “on the

merits” if it “completely disposes of an underlying cause of action,

or determines that plaintiff has no cause of action.” Dennis v.

Vasquez, 2003 UT App 168, ¶ 8, 72 P.3d 135 (emphasis omitted)

(citation and internal quotation marks omitted). In Dennis, we held

that a judgment was final and on the merits because it was “clear

that the judgment was final and precluded [the plaintiff] from

pursuing any remedy orinitiating any further proceedings in small

claims court.” Id. ¶ 7. Husband therefore needed to establish that

the denial was intended to end the controversy—that is, the legal

controversy—between himself and Grandmother. By its express

language, the denial did not.

¶28 The First District Court denied Grandmother’s first petition

using the form the Utah Code requires the Administrative Office of

the Courts to prepare. See Utah Code Ann. § 77-3a-101(3)

(LexisNexis 2012). The form, titled “Denial of Civil Stalking

Injunction,” contains various preprinted reasons for the denial of

a petition, each with a corresponding box for the district court to

check if applicable. By checking these boxes, a court can indicate

that it “will not grant your Request for Civil Stalking Injunction”

for a variety of reasons, including “Corroborating documents are

missing”; “You did not describe the specific events and dates of the

alleged stalking”; and “[t]he Court does not have jurisdiction

because neither party resides nor did the events happen in this

county.”

¶29 Here,the First District Court denied Grandmother’s petition

by checking the box next to the language “The events you

described are not stalking because . . . .” Within that section, the

court checked two subsections: (1) “the Respondent did not make

any threats, and no threats were implied by Respondent’s

conduct”; and (2) “other (explain).” In the “other” subsection, the

court handwrote, “the last episode was April 27, 2012 & Petitioner

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is seeking a stalking injunction 4 months later so no immediate fear

or alleged threats.”

¶30 In its denial order, the First District Court also checked the

separate box entitled “Other (explain).” Next to that, the court

penned, “Petitioner may consider other legal proceedings to

restrain respondent’s alleged conduct.” The majority dismisses 17

this comment as “at most, an advisory opinion.” See supra ¶ 18.

Grandmother argues that the language is a window into the First

District Court’s intent that reveals that the court did not intend the

order to fully resolve the legal issues between the parties arising

out of the alleged conduct. Grandmother appears to suggest that

this language is akin to a dismissal without prejudice to refile

“otherlegalproceedings.”Themajority opines that Grandmother’s

proposed interpretation of that language is “far from obvious and

highly speculative.” See id. The majority then suggests that the

language could have meant that Grandmother was free to present

additional information concerning subsequent stalking events.

Rather than speculate about what the First District Court had in

mind, I prefer to confess that it is not clear what that court

intended. And because it is not clear that the order embodies a final

judgment, I would conclude that Husband failed to establish claim

preclusion.

¶31 Our supreme court has recognized that “collateral estoppel

can yield an unjust outcome if applied without reasonable

17. The form also has a box that reads, “The Court will reconsider

if a response is filed.” The First District Court did not check that

box, which suggests that it may have considered the matter to be

concluded. However, the court’s comment regarding other legal

proceedings creates an ambiguity concerning the finality of the

order.For the reasons discussed herein, such ambiguity only serves

to frustrate Husband’s ability to meet his burden of demonstrating

that the dismissal is a final order.

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consideration and due care.” Buckner v. Kennard, 2004 UT 78, ¶ 15,

99 P.3d 842. In 2005, eighty-four percent of people seeking civil

stalking injunctions in Utah courts did not have the benefit of

counsel to assist them. See Utah Judicial Council, Final

Report—2006 Survey of Self Represented Parties in the Utah State

Courts at 2 (2006), available at http://www.utcourts.gov/survey. It

is not difficult to conjure scenarios in which zealous application of

res judicata principles to the denial of pro se stalking injunction

petitions would lead to unjust results.

¶32 For example, a pro se petitioner who mistakenly believes she

need only allege a single stalking incident and receives a form

denial with the check next to the boxes that read “The events you

described are not stalking because . . . .” and “they were not

repeated” will, under the majority’s holding, be prohibited from

refiling unless and until a new stalking event occurs. That pro se

petitioner will have to await a new stalking event even if she could

have initially alleged multiple stalking incidents, because res

judicata principles prevent the litigation of claims that could or

should have been asserted in the first instance. See, e.g., Gillmor v.

Family Link, LLC, 2012 UT 38, ¶ 10, 284 P.3d 622. In my opinion,

that would constitute an unjust outcome—an unjust outcome that

can be avoided by simply refusing to apply preclusive effect to the

denial of an ex parte civil stalking injunction petition unless it is

clear that the denial was intended to operate as a final judgment on

the merits.

¶33 Our supreme court has stated that the policies underlying

res judicata include: “(1) preserving the integrity of the judicial

systemby preventing inconsistent outcomes; (2) promoting judicial

economy by preventing previously litigated issues from being

relitigated; and (3) protecting litigants from harassment by

vexatious litigation.” Buckner, 2004 UT 78, ¶ 14. In the context of ex

parte civil stalking injunctions, none of these purposes areundercut

by requiring those seeking to benefit from the application of res

judicata principles to actually establish that the district court

intended its denial to be a final judgment and by resolving

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ambiguities in favor of the nonmoving party. All of the stated

purposes can just as easily be promoted by requiring a district

court to make explicit that its denial of a petition for a civil stalking

injunction is intended to be a final judgment on the merits.

¶34 For these reasons, I dissent.

20130039-CA 22 2014 UT App 247