2014 UT App 247

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### T H E 

### U TA H 

### C O U RT O F 

### A P P E A L S

C AND A C E P E T E RS O N

, Peti tioner and Appellee,

v. J O H N A ND RE W A R

M S TR O N G , Respondent and Appellant.

Memor andumDeci si on No. 20130039-CA Filed October 17, 2014

Four th Di stric t Co urt, Pro vo Department The Honorable Fr ed D. Howard No. 120401455

Brent D. Yo ung and Dal las B. Young, Att or neys

for Appellant Grego ry N. Skabelund, Att or ney for Appellee

S E N I OR J UD G E P AM E L A T. G RE E NWO ODauthore d thi s Memor andumDeci si on, i n whi ch S E N I OR J U D G E R US S E L L W. B E N C H concu rr ed. J U

D G E J O HN A. P E ARC E di ssen ted, 1 wi th opini on.

GREENWOOD, Senior Judge:

¶1 John Andrew Armstr ong (Husband) appeals from the Four t h Distr i ct Court ’s or der enter ing a ci vil stalkin g injuncti on again st hi m and in favor of Candace Peterson (Grandmother).

1. The Honor able Pamela T. Greenwood and Russ ell W. Bench, Senior Judges, sat by speci al assi gnment as authorized by law. See generallyUtah R. Jud. Admin. 11-201(6)

.Peterson v. Armstrong

Husband ar gues t hat p r incip les o f r es j udi cata bar the court from i ssu ing the injunc tion. We agree and r ever se.
¶2 Grandmother i s Husband’s former mother -in- l aw. Now 2 di vo rced fro m one a n oth e r, Hu sb a n d a n d Grandmother’ s daughter (Mot her) have two chi ldren, an d Grandmother often c ares for the chi ldren when they are in Mot her’s cus tody

. Grandmother and Mot her resi de in C a ch e County, and Husband resi des in Utah County.

¶3 In April 2009, Grandmother and Husband were involv ed in
a si tuation that resulted in Grandmother calling the poli ce ( the 2009 Inci dent). It began when Husband came to Grandmother’ s home to pi ck up the chi ldren and parke d hi s car on the private land in front of the home. Husband called Grandmother and she informed hi m that Mot her and the chil d r e n were not there

. Grandmother then requested that H u sb a n d l e a ve h e r p roperty

. Husband refused. After Gr a ndmother called for help, the poli ce responded and escorted Husband from the pr emi ses.
¶4 In April 2012, the parties were engaged in another di spute involv ing the poli ce (the 2012 Inci dent). As wi th the 2009 Inci dent, thi s e pi sode began when Husband came to pi ck up the chi ldren from Grandmoth e r

. A fter some confus i on about where Husband and Grandmother would meet to exchange the chi ldren, Husband 3 followed Grandmother and the chi ldren in hi s v e hic l e as they drov e from one location to another

. Whi le driving, Husband

2. We reci te the facts as found by the Four th Di stric t Court

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

3. In Nove mber 2011, the Fo urth Di stric t Court i ssu ed a civil stalkin g injun c ti on a ga in s t G ran d m oth e r th a t re s tr ained her contact wi th Husband but allowed cu r bsi de exchanges. So me of the confus i on during t he 2012 Inci dent resulted from Grandmother’ s inabi li ty to contact Husband herself and the fact that Husband di d not want to lure Grandmother into v i olating the i njuncti on.

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contact ed the poli ce, who instructed hi m to stop following Grandmothe r. Never theless, Husband continued to follow Grandmother for a p p ro xim a te l y tw e n ty m inu te s

. E ve n tu a l ly, when Grandmother reached he r destinati on, the chi ldren walked to Husband’s car and into Husband’s cus tody wi thout fur t he r inci dent.

¶5 Appro xim ately four months later , on August 24, 2012, Grandmother filed a request for a civil stalkin g injuncti on against Husband in the Fi rst D i stric t Court (the First Di stric t Court Case)

. In her petiti on, Grandmother described the 2009 Inci dent and the 2 0 1 2 Inci dent, as well as two other alleged contacts, as stalkin g event s. Wi thout holding a hearin g, the Fi rst D i stric t Court i ssu ed 4

an or der denying Grandmother’ s request for an ex parte civ i l stalkin g injuncti on. The F i rst Di stric t Court ’s o rder indi cated that the event s described by Gr andmother were not stalkin g becau se “the last epi sode was April 27, 2012 [and Grandmother] i s seeki ng
a stalkin g injuncti on 4 months later so no i mmedi ate fear or alleged th r e a t s.” The court’s or der conti nued, “[Grandmother] may consi der other legal proceedings to re strain [Husband’s] alleged conduc t.”

¶6 Sev enteen days later , Grandmother fi led a second request for a ci vil stalkin g injuncti on, thi s tim e in the Four th Di stric t Court (the Four th Di stric t Co ur t Case). Grandmother’ s petiti on again 5 described the 2009 Inci dent and the 2012 Inci dent as stalkin g

4. An ex parte c i vil s talking injuncti on may be i ssu ed by the c ourt wi thout a hearin g or no t ice

. Utah Code Ann. § 77-3a-101( 5)(a) (Lexi sNexi s 2012).

5. “[I]f t he re i s a prior court or der concerning the same conduct,” t he Utah Code requires the petiti on to inclu de the name o f t he court in whi ch the pri or or der w as render ed. Id

. § 77-3a-101( 4)(d)

. Gr a nd mo ther’ s Four th Di stric t petiti on di scl osed the Nove mber 2011 stalking inj unction again st her but di d not di scl ose the First Di stric t Co urt Case.

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event s. Grandmother also alleged si x other stalkin g inc ide nts in supp or t of her petiti on. The F o ur th Di stric t Court i ssu ed an ex parte tempor ary ci vil st a l k ing injuncti on that was served on Husband. Wi thi n ten d a ys, H u sb a n d re q u e s ted a hearin g. Husband also fi led a motion to di smi ss the s talking injuncti on, arguing that Grandmother’ s petiti on was not made in goo d fai th becau se the First Di stri c t C ou rt had deni ed a si mi lar petiti on, whi ch relied upon the same inci dents as the petiti on fi led in the Four th Di stric t Court

. Grandmother opposed the motion, acknowled g ing that the 2009 Inci dent and the 2012 Inci dent had been rais ed in the petiti on fi led in t he First Dis tr i ct Courtbut arguin g thatthe First Di stric t Court made no deci si on on the mer i ts of the r equest. 6

¶7 The Four th Di stric t Court held an evidenti ary hearin g on Nove mber 9 , 2 012. At the end of the hearin g, the court deni ed Hu sb a nd’ s motion to di smi ss, declaring that the deni al o f Grandmother’ s appli cati on for an e x p a rt e s ta l ki n g injuncti on in the First Di stric t Court did n ot constitute an adjudi cator y pro ceeding that ro se to the level of re s j ud icata or collateral estoppel. After hearin g the evidenc e, the Four th Di str ict Court found “reason to beli eve” that the stalkin g had occurred. The co urt made findings reg ardin g the 2009 Inci dent and the 2012 Inci dent, and deter mined that both epi sodes consti tuted s talking. The court di d not address the si x other inci dents that Grandmo ther alleged in her petiti on. 7 The Four th Di stric t Court gr anted the stalkin g injun ct i on again st Husband. Hu sban d appeals.

6. Husband’s motion arg ued that Grandmother’ s petiti on relied on the same inci dents, but he di d not use the ter ms res judi cata, clai m preclusi on, or i ssu e preclusi on. Gr a ndmother’s memorandum arg ued that clai m preclus i on was the relevanti ssu e.

7. The di stric t court refer red to an August 2009 inci dent (one of the si x other alleged inci dents) duri ng which Husband threat ened Grandmother and h e r hu sban d in front of Husband’s home. Unli ke the 2009 Inci dent and the 2012 Inci dent, however , the court’s or der di d not stat e that t he August 2009 inci dent was s talking.

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¶8 Husband challen ges the Four th Di stric t Court ’s gr ant of the stalkin g injuncti on, arg uing that the First Di stric t Court ’s di smi ssal of Grandmother’ s earlier petiti on barred the Four th Di stric t Court from i ssu ing an inj unction predic ated upon the same alleged stalkin g event s. Whether res judi cata bars an acti on p r e se nt s a questi on of law. Macris & Assocs., Inc. v. Neways, In c ., 2 0 0 0 UT 93, ¶ 17, 16 P.3d 1214. We rev ie w t he d i stric t court’s deci si on on a questi on of law for corr ectness. Id

. Husband also arg ues that the Four th Di stric t Court should have gr anted hi s request for atto rney fees and that he sh ould be awarded fees incu rr ed on appeal.

¶9 We begi n by outlin ing the statuto ry procedures for obtaining a ci vil stalkin g injuncti on. Under Utah law, a person who beli eves he o r sh e i s the vic tim of stalkin g “may fi le a ver i fi ed wri tte n petiti on for a ci vil stalkin g inj un ct i on again st the alleged stalker wi th the di stric t court in the di stric t in whi ch the petiti oner
or respondent resi des or in whic h a ny of the event s occurred.” Utah Co de Ann. § 77-3a-101( 2) (Lexi sNexi s 2012). The court may 8 i ssu e an ex parte ci vil stalkin g injuncti on i f i t “deter mines that there i s reason to believe that an offense of stalkin g has occurred.” Id. § 77- 3a-101(5) (a ) (emphas i s added). The ex parte injuncti on mus t be served on the resp o nd e nt, and i f the respondent requests an evidenti ary hearin g wi thi n ten days of service, the court shall hold

a he a r ing, after whi ch the court may modi fy, rev oke , or continue the injunctio n. Id

. § 77-3a-101( 6)–(7)

. For the court to enter a permanent injuncti on, “[t]he burden i s on the petiti oner to show by

8. The Admini strat i ve Offi ce of t he Court s i s required to prov i de fo rm s a n d a s s i s tan c e for p ersons fi ling ex parte stalkin g injuncti ons,
see Utah Code Ann. § 77-3a-101(3) (Lexi sNexi s 2012), and the relat i vely low proo f standar d threshold allows some flexibi li ty in gr anti ng the same, cf. Wi l ke r v

. Wilker , 630 N.W.2d 590, 595 (Iowa 2001) (“Out of necess i ty domesti c abuse pr ocedures are ro utinely insti gate d upon a pro se petiti on and consequently,

. . . so me l e e w a y mu s t b e accorded from preci si on d ra fts m a n s hi p

. ” ( om i s s i on in original) ( ci tation and internal quot ation marks omi tte d)).

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a preponderance of the evidence that stalk ing of the pet i tioner by the respondent has occurred.” Id

. § 77-3a-101( 7) (emphas i s added). For purposes of the statute g ov ernin g ci vil s talking injuncti ons,
[a] person i s gui lty of stalkin g who intentionally or knowi ngly engages in a course of conduc t di rected at

a speci fi c person and knows or should know that the

course of conduc t would caus e a reasonable person: (a) to fear for the person’s own safety or the safety of

a thi rd person; or (b) to suffer other emo t io nal di stress.

Id. § 76-5-106.5( 2).

¶10 Husband arg ues that res judi cata barred the Four th Di stric t Court from i ssu ing a ci vil stalkin g injuncti on based upon the same two event s as were alleged in Grandmother’ s uns ucc essf ul petiti on fi led in the First Di stric t Court

. Res judi cata refe r s t o “ the ov erall doctrine o f t he preclusive effects t o be g i ven to judgments.” Moss

v. Parr Waddoups Brown Gee & Loveless , 2012 UT 42, ¶ 20, 285 P.3d 1157 (ci tation and internal quotat i on m a rk s omi tte d). There are two branches of res judi cata: clai m preclusi on and i ssu e preclusi on. Id. “Clai m preclusi on corr esponds to caus es of a c tion; i ssu e preclusi on
corr esponds to the facts and i ssu es underlyin g caus es of acti on.” Id. (ci tation and internal quot ation marks omi tte d).

¶11 Clai m preclusi on “bars a party from prosecuti ng in a sub sequent acti on a clai m that has been fully li tigated prev i ously.” State v. Sommervil le, 2013 UT App 40, ¶ 30, 297 P.3d 665 (ci tation and internal quotat i on ma r k s omi tte d). A prior judgment has a preclusi ve effect when a later laws ui t “i s entirely predic ated on the

same set of oper ative facts and the s ame alleged injury .” Nipper v. Douglas , 2004 UT App 118, ¶ 10, 90 P.3d 649. In other words, clai m preclusi on appli es when “the i ssu es are the same, the facts are the
same, and the evidenc e i s the same as in the prev i ous li tigati on.” Id. ¶ 11 (ci tation and inter na l quotat i on marks omi tte d). Clai m preclusi on appli es wh en three e lements are sati sfi ed:

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(1) b oth sui ts mus t involv e the same part i es o r their privi es, (2) the clai m that i s alleged to be barred mus t have bee n presented in the fi rst sui t or be one that could and should have been rais ed in the fi rst acti on, and (3) the fir st sui t mus t have resulted in a final judgment o n the merits.

Moss , 2012 UT 42, ¶ 21 (ci tation and internal quo t ation marks omi tte d). The thi rd element i s relev ant to both cl a i m p re clus i on and iss ue preclusi on becau se “both

. . . require that the fi rst sui t mus t have resulted in a final judgment on the merits.” Sommervil le, 2013 9 UT App 40, ¶ 31 (ci tation and internal quotat i on marks omit ted). In thi s case, Husband and Grandmother agr ee that the fi rst two

e l e ment s of clai m preclusi on are sati sfi ed. Thus, we focus our analysi s on t he t hird element of clai m preclusi on—whether the acti on in the First Di stric t Court resulted in a final judgment on the merits.

9. The four elements of i ssu e preclusi on are (i) t he party again st whom i ssu e preclusi on i s asserted was a party to or in privi ty wi th a party to the prior adjudi cati on; (i i ) the i ssu e d e cided in the prior adjudi cati on was i denti cal to the one presented in the instant acti on; (i i i ) t he i ssu e in the fi rst acti on
was completely, ful l y, and fai rly li tigated; and (i v) the fi rst sui t resulted in a fina l judgment on the merits. Moss v. Parr Waddo ups Bro wn G ee & Loveles s , 2012 UT 42, ¶ 23, 285 P.3d 1157 (ci tation and internal quotat i on marks omi tte d). Our supreme court has stated, “The mini mum reach of i ssu e preclusi on beyond preci se repeti ti on of the fi rst acti on i s to prev ent reliti gation by mere intro ducti on of cum ulati ve ev i dence bearing on a si mple hi stor i cal fact that has once been deci ded.” Harline v. Barker , 912 P.2d 433, 443 (Utah 1996) (ci tation and int e r nal quotat i on marks omi tte d).

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¶12 Husband arg ues that the deni al of the First Di stric t Court ex parte petiti on for a ci vil stalkin g injuncti on barred the matter from going forward in a di ffer ent di stric t court and ended the contro ver sy between the parties as to the allegations in the first petiti on. Husband contends that the First Di stric t Court ’s deni al of G randm other ’s ex parte petiti on was a final judgment on the merits becau se t he court deter mined t hat Gr a ndmother had no t met her burden to show that the offense of stalkin g had occurred. Husband further ar gues that “[i ]f the evidenc e presented cannot sati sfy the [reason to beli eve ] standard in the absenc e of any adver sari al proceedings [in the First Di stric t Court ], such a finding i s
necess arily a finding that the e v idence cannot sati sfy the preponder ance of the e vi d e n c e s tan d a rd a t an adver sari al hearin g.” Th us, according to Husband, the First Di stric t Court ’ s deter minati on that Grandmo t he r di d not meet the “reason to beli eve” standard should be binding and preclude the Four th Di stric t Court from l a te r d e te rm inin g th a t G ran d m othe r h ad shown by a prepo nderance of the evidenc e that stalk ing had occurred. 1 0

¶13 In contrast, Gran d mo ther arg ues that the First Di stric t Court ’s deni al of her fi rst petiti on di d not consti tut e a final judgment on the merits becau se Husband di d no t ma ke an appearance. Grandmother further contends that the First Distr i ct Court ’s deni al of her fi rst petiti on was not a judgment on the merits becau se t he court stated in its o rder that she “may consi der other

10. Husband also arg ues that the Four th Di stric t Court appli ed the wrong st a ndard of proo f—the reason to beli eve standard—i n i ssu ing the ci vil stalkin g injuncti on a ft e r the evidenti ary hearin g. That arg ument appears to have m erit becau se the les ser reason to beli eve standard a p pli es to the i ssu ance of an ex parte injuncti on only. See Utah Code Ann. § 77-3a-101( 5)(a) , (6)( a), (7) (Lex isNexi s 2012). However , that di st inction, whi le i mport ant, i s not relev ant to our analysi s, becau se our focus i s on the appli cabi li ty o f clai m p reclusi on as to the ex parte or der, not the permanent injuncti on after no tic e and a hearing.

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legal proceedings to restr ain [H usb and’s] alleged conduc t.” Accordi ng t o Grandmother, thi s language meant that the First Di stric t Court ’s “deci si on declin[ed] to reach the merits bas ed on [the] avai labi li ty o f an alternative remedy.”

¶14 “A judgment i s upon the merits when i t amounts to a declaration of the law as to t he respecti ve rights and duti es of the part ie s ba sed on

. . . facts and evidenc e upon whi ch the rights of

recov ery depend, i rr especti ve of formal, techni cal, or di lator y objections o r contentions.” Sommervil le, 2013 UT App 40, ¶ 32 (omi ssi on in or i gin al) (c i tation and internal quotat i on marks omi tte d).

To be on the merits, a judgment does no t have to proceed to tr ia l

. Rather , a judgment on the merits may be made at any stage of the li tigati on, so long as

. . . [the judgment render ed i s] based upon a proper appli cati on of the relev ant law to the facts of the case.

Id

. (alterat i on and omi ssi on in or i gin al) (c itation and internal quotat i o n marks omi tte d). Furthermor e, “[a] judgment i s on the merits i f i t completely di sposes of an underlyin g caus e of acti on, or deter mines that plainti ff has no caus e of acti on.” Denn is v. Vasquez , 2003 UT App 168, ¶ 8, 72 P.3d 135 (emphas i s omi tte d) (ci tation and internal quot ation marks omi tte d). 1 1

11. “‘[O]n the merits’ i s a ter m of art that means that a judgment i s render ed only after a court has evaluated the relev ant e vi d e n c e and the part i es’ sub stanti ve arg uments.” State v. S ommerville , 2013 UT App 40, ¶ 32, 297 P.3d 665 (ci tation and int e r na l quotat i on marks omi tte d) (conc luding that a vo luntary di smi ssal of charges di d not involv e the justic e co urt’s appli cati on of the relev ant law to the facts of the case) ; see also In re D.A. , 2009 UT 83, ¶ 37, 222 P.3d 1172 (indi cating that a matter i s not adjudi cated on the merits when the court’s de cis i on involv es “matter s of form rat her than (continued...)

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¶15 The parties have poin ted us to li ttle case law in thi s area, and

we have not located any Utah appellate c ourt deci si ons involv ing the appli cati on of res judi cata in the context of a ci vil st a l kin g injunct i on. However , case law from other jurisdi cti ons indi cates that clai m preclusi on may be appli ed when a second ci vil stalkin g petiti on i s fil ed following the deni al of a sim ila r petiti on. See, e.g. , Torto rello v. Torto rello , 153 P.3d 1117, 1122–24 (Haw

. 2007) (affi rmi ng the appli cati on of res judi cata becau se “the clai m deci ded in Peti tion I i s i denti cal wi th the one pres ented in Peti tion II,” and conclu ding that the intermediate court of appeals di d not err in holding that res judi cata appli es to “prot ecti ve or der

cases fi led by the same petiti oner again st t he sa me respondent wh e r e the second case i s based on event s that occurred, and that the petiti oner knew about, prior to the fi ling of the first petiti on” (ci tation and internal quotat i on marks omi tte d)). The Ohi o Court of Appeals appli ed clai m preclusi on in Bumgardner v. Bumgardner, No. CA2004-07-172, 2005 WL 1545790 (Ohi o Ct. App. July 5, 2005). There, the domesti c relat i ons commi ssi oner deni ed the petiti oner’ s fi rst petiti on for a ci vil prot ecti on or der due to the lack of evidenc e. Id. at *1. The petiti oner never theless fi led a second petiti on, whi ch alleged s ome f acts conc ernin g events that occu rr ed sub sequent to the di smi ssal of her fi rst petiti on and r e i ter ated the allegations made in supp or t of her fi rst petiti on. Id. After the co mm i ssi oner deni ed the second petiti on b a s e d on c l a i m p re c lusi on, the petiti oner appealed. Id

. The Bumgardner court ulti matel y affi rmed the di smi ssal of the petiti oner’ s second pet ition. Id

. at *3. The court reasoned that the petiti oner fa iled to present evidenc e that the respondent placed her in fear of harm and that clai m preclusion appli ed becau se the petiti oner’ s fear of the respondent was “solely based on the event s alleged in [the petiti oner’ s] fi rst pe titi on.” Id

. at *2.

11. (...continued) consi derat i ons of sub stance and legal rights” (ci tation and internal quotat i on marks omitted)).

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¶16 Deci si ons from other courts indi cate that clai m preclusi on i s not appropr i ately appli ed when the second petiti on involv es allegations of stalkin g eve nt s that occurred after the fi rst petiti on
was di smi ssed. See White v. Bain , 2008 SD 52, ¶ 21, 752 N.W.2d 203 (per curi am) (“ B e ca use of [the respondent’s] sub sequent acts [of har a ss me nt ]

. . . we hold that res judi cata di d not bar the second acti on or the tr i al court fro m cons i dering [the evidenc e presented in the fi rst acti on] as part of the basi s for deter mining that stalkin g too k place.”) ; see also Goldfuss v. Traxler, No. 16-08-12, 2008 WL 5053451, at *5

– 6 (O hio Ct. App. Dec. 1, 2008) (concluding that res judi cata di d not preclude a later ci vil prot ecti on or der becau se the petitio ne r’s second petiti on alleged facts concerning event s that occurred sub sequent to the di smi ssal of her fi rst petiti on); Moo re v. Moo re, No. 02CA0071, 2003 WL 21658466, at *1 (Ohi o Ct. App. July 16, 2003) (affi rming t he i ssu ance of a ci vil prot ecti on or der and ruli ng that res judi cata di d not apply “[b] ecaus e the tr i al court based i ts deci si on upon evidenc e that was not p rev i ously adjudi cated”). Thi s approach addres s e s the “ u ni qu e c on s i derat i ons in applying nor mal princi ples of res judi cata to clai ms arising out of conti nuing or renewed conduc t,” such as clai ms of ci vil stalkin g. White, 2008 SD 52, ¶ 18.

¶17 Furt hermor e, we are not persuaded by Grandmoth e r ’ s arg ument that there was no final judgment in the First Di stric t C o ur t becau se Husband di d not appear. First, contrar y to Grandmother’ s clai m, the appe a r a nc e of all parties i s not a prer equi si te for a judgment to be a final judgment on the merits for the purposes of clai m preclusi on. Cf

. State v. Sommervil le, 2013 UT 1 2

12. Grandmother al so arg ues that the First Dis tr i ct Court ’s denial of her fi rst petiti on was not a final judgment on the merits becau se t he court di d not hold an evidenti ary hearin g before ruling

. Howe v e r , t he fact that the First Di stric t Court di d not hold an evidenti ary hearin g does not defeat the appli cati on of clai m preclusi on. Our supreme court’s ca se l aw indi cates that an (continued...)

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App 40, ¶ 32, 297 P.3d 665 (“To be on the m erits, a judgment does not have to proceed to tr i al. Rather , a judgment on the merits may be ma d e at any stage of the li tigati on

. . . .” (ci tation and int e r na l quotat i on marks omi tte d)). All th a t is required i s that the party

se eking to invok e clai m preclusi on mus t establi sh that the earlie r sui t involv ed “the same parties or their privi es and the same caus e of acti on.” Buckner v. Kenn ar d, 2004 UT 78, ¶ 12, 99 P.3d 842. As a consequ e nc e , the finali ty of the Four th Di stric t Court ’s deni al of Grandmother’ s fi rst petiti on i s not negated by the fa ct t hat Husband di d not appear

. 1 3

12. (...continued) evidenti ary hearin g i s not required for re s ju d i c ata to apply becau se
an e arlier acti on may bar a later acti on even if the fi rst action was resolv ed on the allegations in the pl eadings alone, i .e., wi thout an evidenti ary hearin g. For example, our supreme court adopted the reasonin g of the federal di stric t court for the di stric t of Utah, whi ch reasoned that “‘[a] motion to di smi ss for fai lure to state a clai m upon whi ch r e l ie f can be gr anted

. . . [i s a] di smi ssal

. . . on the merits and is a cc o r ded res judi cata effect.’” See Mack v. Utah S tat e Dep’t of Commerce , 2009 UT 47, ¶ 29, 221 P.3d 194 (sec ond alter ation and omi ssi ons in or i gin al) (quoti ng FDIC v. Paul , 735 F. Supp. 375, 380 (D. Utah 1990) ); see also Utah R. Ci v. P

. 12(b) (indi cating that a rule 12(b) (6) motion t o d ism iss for fai lure to state a clai m i s evaluated o n matter s wi thi n the pleadings).

13. Mor eov er, Grandmother had an oppor tuni ty to appear and present allegations and e videnc e. See Utah Code Ann. § 77-3a101(4) (Lexi sNexi s 2012) (requi ring a petiti on for a ci v i l stalkin g injuncti on to inclu de “speci fi c event s and dates of the acti ons consti tuting t he alleged stalking” and “corr obor atin g evidenc e of stalkin g, whi ch may be in the form of a poli ce re p o r t, affi davit,

recor d, statement, i tem, lette r, or any ot her ev i dence whi ch te nds to prov e the allegation of st a l k ing ” ); cf. 3D Constr. & Dev., LLC v. Old Standard Life Ins. Co. , 2005 UT App 3 0 7, ¶ 1 9 , 117 P.3d 1082 (continued...)

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¶18 We also are not convin ced that the First Dis tr i ct Court ’s statement that Grandmother may consi der other legal proceedings meant that the First Di stric t Court d id not reach the merits of G r a n d m o t h e r ’ s f i r s t p e t i t i o n

. R a t h e r , w e b e l i e v e t h a t Grandmothe r ’s propo sed interpr etat i on i s far from obvious and hi ghly specu lative. After the First Di st r ict Court ’s deni al of Grandmother’ s fi rst petiti on, Grandmother could have fi led a later petiti on upon the sub sequent occurrence of addit io nal alleged stalkin g event s. See White, 2008 SD 52, ¶¶ 20–21. Grandmother would be precluded from allegin g other acts of stalkin g that occurred prior to the First Dis tr i ct petiti on becaus e she could and should have rais ed them in that p etiti on. Had she done so, Grandmother could have presented the other event s as part of the course of conduc t. See id. ¶ 20 (“[E] videnc e of underlyin g activi ty from a prior cl a im may be admi ssi ble to prov e a new clai m.”). In any event, the Firs t Dis tr i ct Court ’s refer ence to “other legal proceedings” i s, at most, an a d v i sory opin i on. See Sum mit Wat er Distrib. Co. v. Sum mit County, 2005 UT 73, ¶ 50, 123 P.3d 437 (“Our settled poli cy i s to avo i d giving advis or y opin i ons in reg ard to i ssu es unnec essary to the resolution of the cla ims before us.”) ; Reynolds v. Re y n ol d s , 788 P.2d 1044, 1045 (Utah Ct. App. 1990) (notin g that the func tion of courts i s not to give opin i ons on merely abstract or theor etic al matter s). 1 4

13. (...continued) (rej ecti ng plainti ff’s arg ument that the fully and fai rly li tigated prong of i ssu e preclusi on requires an ac tual tr i al or i ts equi valent and instead conclu ding that Utah’s case law supp or ts the view that “thi s element is met i f t he party again st whom is sue preclu si on i s sought had adequate notic e and an oppor tuni ty to li tigate the i ssu e”).

14. We find Grandmother’ s relianc e on Fun d am e ntalist Churc h of Jesus Chri st of Latter- Day Saints v. Horne, 2012 UT 66, 289 P.3d 502, to be unavai ling. Grandmother arg ues that thi s case stands for the (continued...)

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¶19 Under the ci rcums tances o f t hi s case, we conclude t hat the First Di stric t Court ’s denia l of Grandmother’ s fi rst petiti on for a ci vil stalkin g injuncti on was a final judgment on the merits. Based

on the allegations and evidenc e attached to Gr a nd mo ther’ s fi rst request, the First Di stric t Court deter mined that th e e v e nts described were not stalkin g event s becau se Husband “ d id not make any threat s, and no threat s were i mpli ed by [Husband’s] conduc t.” The First Di stric t Court also deter mined that Grandmother di d not have any i mmedi ate fear because the most recent alleged sta l kin g event occurred four months earlier. In ruli ng that an ex parte stalkin g injuncti on would not be i ssu ed, the First Di stric t Court necess arily conclu ded th a t Gr andmother had not shown reason to beli eve that Husband had engaged in a course of conduc t agains t her t hat “would cau se a reasonable person: (a) to fear for the person’s own safety o r the safety of a thi rd person;
or (b) to suffer other emotional di stress.” See Utah Code Ann. § 76- 5-106.5(2) (Lexi sNexi s 201 2 ); s e e also id. § 77-3a-101( 5)(a)

. As a

14. (...continued) propo si tion that “[a] deci si on declining to reach the me r it s based

on [the] availab i li ty of an alter nati ve remedy

. . . i s not preclusi ve.” In that case, the Utah Supreme Court addressed the preclusi ve effect of i ts prior deci si on di smi ssing a p e t ition for ext rao rdin ary wri t on laches gr ounds. Id

. ¶ 53. Peti tions for ext rao rdin ary wri t are ty p i c a l l y a va i l ab l e only when “no other plain, speedy and adequate remedy i s availa

b l e,” i .e., when a petiti oner has no other alter nati ve remedy. Utah R. Ci v. P. 65B(a). In ruling that i ts prior deci si on would preclude a sub sequent clai m, the supreme court explained that i t “di d not di smi ss the petiti on in [the earlier case] based on the avail a bil ity of an alter nati ve remedy.” Horne, 2012 UT 66, ¶ 19. Rather , the court deemed i ts di smi ssal of the earlier case as a preclusi ve judgment on the me rits becau se i t had di smi ssed the

e a r l i er case “in li ght of [i ts] resolution of the merits of t he respondents’ affi rmative defense of laches .” Id

. Gi ven th e un ique context of Horne, we are not persuaded by Grandmo ther’ s interpr etat i on and appli cati on of Horne to t he cas e before us.

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result, the First Di stric t Court deter mined that the 200 9 Inci dent and the 2012 Inci dent were not stal k ing e vents justif yin g the i ssu ance of an ex parte stalkin g injuncti on and possi ble further proceedings. Thus, t he F ir st Dis tr i ct Court ’s deni al of Grandmothe r ’s fi rst petiti on involv ed the “appli cati on of the relev ant law to the facts of the case,” see Sommervil le, 2013 UT App 40, ¶ 32 (ci tation and internal quot a t io n mar ks omi tte d), and there fore r endered a final judgment on t he meri ts.

¶20 After a court deter mines that a petiti oner fai led to show

reason to beli eve that an offense of st alkin g has occurred, the court’s deni al o f a ex parte stalkin g petiti on i s final becau se no further proceedings are contemplated by the ci vil stalkin g s ta tu te

. 1 5 See Utah Co de Ann. § 77-3a-101. In c ontr ast, when a di stric t c ourt i ssu es an ex parte ci vil stalkin g injuncti on, further proceedings are allowed under the statute becau se the respondent has the option of requestin g an evidenti ar y he a r ing before the ex parte injuncti on automatic ally becomes a three -year ci vil stalkin g injuncti on. See id

. § 77-3a-101( 6). But where, as here, the court rev i ewed the evidenc e and determin ed that a pet i tioner di d not satis fy the ini tial b urden of showing reason to beli eve there has been stalkin g, the petiti oner has no basi s upon whic h t he requested relief—the i ssu ance of a stalkin g in

juncti on—can be granted.

¶21 Due to the First Di stric t Court ’s i mpli ci t deter minati on that t he 2009 Inci dent and the 2012 Inci dent were not stalkin g even t s,

15. The Cohabi tant Abuse Act, whi ch gov e r ns the i ssu ance of prot ecti ve or ders, stands in contrast to the ci vil stalkin g st a t ut e becau se i t does prov i de for addi tional proceedings wh e n a n ex parte petiti on for a p ro tective or der i s deni ed. Speci fi cally, the C ohabi tant Abuse Act instructs, “When a court deni es a petiti on for
an ex parte prot ecti ve or der

. . . , upon the request of the petiti oner, the courtshall s et the matter for hear ing and notif y the pet i tioner and serve the respondent.” Utah Code Ann. § 78B-7-107( 3) (Lexi sNexi s 2012).

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the Four th Di stric t Cou r t was precluded from gr anti ng a ci vil stalkin g injuncti on solely based on the same two event s. Although Grandmother alleged more details reg ardin g those two particu lar inci dents and she alleged si x oth e r st alkin g event s in the second petiti on, th e Four th Di stric t Court only made findings reg ardin g the 2009 Inci dent and the 2012 Inci dent— t he same two inci dents that the First Di stric t Court ruled were not stalkin g event s. And unli ke the cases where the petiti oner alleged addit io na l stalkin g event s that occurred s ubs equent to the deni al of a fi rst request for

an injuncti on, see, e.g. , White v. Bain , 2008 SD 52, ¶¶ 20–21, 752 N.W.2d 203 (per curi am), Grandmother di d not allege any stalkin g event s that occurred between the tim e of her fi rst petiti on and her second petiti on. Rather , Grandmother’ s addi tional allegations in the se cond petiti on were based on event s that predate d the First Di stric t C o ur t ’ s deni al of her fi rst petiti on. Grandmother could have rais ed the addi tio na l d etails and si x other alleged event s in her fi rst petiti on and her f ai lure to do s o in the First Di stric t Court does not justif

y her refil ing in the Four th Di stric t Court

. Cf. Nipper

v. Douglas , 2004 UT App 118, ¶ 10, 90 P.3d 649 (“Not o nl y d oes clai m preclusi on prev ent reliti gation of a clai m, i t also prev ents the li tigati on of clai ms that could and should have been li tigated in the prior acti on, but were not.” (ci tation and internal quotat i on marks omi tte d)). Becaus e we conclu de t ha t clai m preclusi on bars Grandmother’ s acti on in the Four th Di stric t Court, we do not reach Husband’s i ssu e preclusi on arg ument. 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 Fin ally, Husband requests a n a ward of atto rney fees and asks us to r emand thi s case wi th instructi ons fo r t he di stric t court to consi der awarding hi m atto rney fees incu rr ed both at the di stric t court and on appeal. The civ il st alkin g statute prov i des di stric t courts wi th di screti on to award reasonable atto rney fees to ei ther party

. Butters v. Herbert, 2012 UT App 3 29, ¶ 20, 291 P.3d 826; see als o Utah Code Ann. § 77-3a-101( 16) (Lexi sNexi s 2012) (“A ft e r a hearin g wi th notic e to the affec ted party , the co urt may enter an
or der requi ring any p art y to p ay the costs of the acti on, inclu ding

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reasonable atto rney fees.”). We have prev i ously explain ed that thi s secti on i s “permi ssi ve in nature, providing the tr i al court wi th the di screti on to deter mine whether to award atto rney fees.” Ellison v. Stam , 2006 UT App 150, ¶ 46, 136 P.3d 1242

. In hi s motion to di smi ss, Husband requested an award of atto rney fees incu rr ed in defending the acti on. Husband ci ted secti on 77-3a-101( 16), but hi s arg ument focus ed on hi s asse rti on that Grandmother’ s clai ms were not brought in goo d fai th. In gr anti ng Grandmother’ s petiti on, the di stric t court di d not address Husband’s request. Becaus e we
rev erse the di stric t court’s deci si on to i ssu e the stalkin g injuncti on,
we remand wi th instructi ons for the di stric t cou rt to c on si der under the statute whether to award Husband the atto rney fees he incu rr ed at the dis tr i ct court and on appeal.

¶23 In sum mary, the Four th Di strict C ourt err ed in iss uing the stalkin g injuncti on a g ainst Husband becau se the First Di stric t Court ’s deni al of Grandmother’ s petiti on had preclusi ve effect. We there fore r ever se and remand.

PEARCE, Judge (di ssen tin g):

¶24 Becaus e Husband fai led t o mee t hi s burden of demonstrating that the denia l of Grandmother’ s ini tial ex parte petiti on for a ci vil stalkin g injuncti on consti tuted a final judgment on the merits, I respectfully di ssen t.

¶25 Gr a nd mo ther arg ues that the deni al of an ex parte civil stalkin g injuncti on petiti on can never be consi dered a final judgment. The di stric t court appeared to acc e p t t hat arg ument, statin g, “I don’t view the deni al of the ex parte , the appli cati on for the stalkin g injuncti on to consti tute an adjudi cator y pro ceeding that would ris e to the level of collateral estoppel or r e s j udi cata.” The major i ty persuasi vely holds that, contr a r y to Grandmother’ s asserti on, in some instances the deni al of an ex parte c i vil stalkin g

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petiti on can act as a final judgment for clai m preclusi on purposes. 1 6 That, however , does not resolv e the questi on of whether Husband met hi s burden of establi shing t ha t the deni al the First Di stric t Courti ssu ed was a final judgment on t he meri ts.

¶26 A party seeki ng to invok e collateral estoppel mus t prov e each of i ts elements. Busch v. Busch , 2003 UT App 131, ¶ 6, 71 P.3d 177. As a result, H usb and bore the burden of establi shing that the d e ni al of Grandmother’ s ini tial petiti on consti tuted a “final judgment on the merits.” See, e.g. , Moss v. Parr Waddo ups Brown Gee & Loveless , 2012 U T 4 2 , ¶ 21, 285 P.3d 1157 (ci tation and internal quotat i on marks omi tte d). Husband di d not even atte mpt to meet thi s burde n in the di stric t court. Hi s motion to di smi ss Grandmother’ s second petiti on di d not use the ter ms “res judi cata,” “c ol l a te ra l e s to p p e l, ” “ i s s u e p reclusi on,” or “final or der.” Instead he arg ued that the petiti on fi led in the Four th Di stric t Court was “judge shopping.” Husband made the same ar gument at t he motion hearin g, repeat ing hi s a s s e rti on that Grandmother’ s second petiti on should be di smi ssed becau se “[i ]t’s cl e a rly judge shopping.”

¶27 Had he tr i ed, Husband would have been unabl e to shoulder hi s burden of demonstrating that the deni al was a final j udgment

on the merits. “‘On the merits’ i s a ter m o f a rt that means that a judgment i s render ed only after a court has evaluated the relev ant

e v idence and the parties’ sub stanti ve arg uments.” State v. Sommervil le, 2013 UT App 40, ¶ 32, 297 P. 3 d 6 6 5 (ci tation and

16. The major i ty opin i on does not reach the questi on of whether the deni al of a petiti on for an ex par t e civi l stalkin g injuncti on could

ever be consi dered to have “completely, fully, and fai rly li tigated” the i ssu es rais ed in a ci vil stalkin g injuncti on petiti o n fo r iss ue p reclusi on purposes. See Moss v. Parr Waddo ups Brown Ge e & Loveless , 2012 UT 42, ¶ 23, 285 P.3 d 1 1 5 7 (ci tation and internal quotat i on marks omitted).

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internal quotat i on marks omi tte d). A final judgment on the merits “ends the contro ver sy between the parti es.” Salt Lake City Corp. v. Layton , 600 P.2d 538, 539 (U t a h 1 9 79). A judgment i s “on the merits” i f i t “completely di sposes of an underlyin g caus e of acti on,
o r deter mines that plainti ff has no caus e of acti on.” Denn i s v

. Vasquez , 2003 UT App 168, ¶ 8, 72 P.3d 135 (emphas i s omi tte d) (ci tation and internal quotat i on marks omi tte d). In Denn is , we held that a judgment was final and on the merits becaus e i t was “clear that the judgment wa s final and precluded [the plainti ff] from pursuing any remedy or ini tiating any further proceedings in small clai ms court .” Id. ¶ 7

. Husband ther efore needed to establi sh that the deni al was i ntended to end t he contro ver sy—that is, the legal contro ver sy—between hi mself and Grandmother. By i ts expr e ss language, the denial d i d not.

¶28 The First Di stric t Court deni ed Grandmother’ s fi rst petiti on using the form the Utah Code requires the Admini strat i ve Offi ce of the Court s to pr e p a r e

. See Utah Code Ann. § 77-3a-101( 3) (Lexi sNex is 2 012). The form, titled “Deni al of Ci vil St alkin g Injuncti on,” contai ns v arious prepr inted r e a so ns for the deni al of

a petiti on, each wi th a corr esponding bo x fo r t he di stric t court to chec k i f appli cable. By chec kin g these boxes, a court can indi cate that i t “wi ll not gr ant your Request for Ci vil St alkin g Injuncti on” for a var i ety of reasons, inclu ding “Cor ro borat ing documents are mi ssing”; “You di d not describe the speci fi c event s and dates of the allege d st a l kin g”; and “[t]he Court does not have jurisdi cti on becau se nei ther party resi des nor di d the event s happe n in thi s county.”

¶29 H e re, the Firs t Di stric t Court deni ed Grandmother’ s peti ti on by chec kin g the box ne x t t o the language “The event s you described are no t st a l k ing becau se

. . . .” Wi thin that secti on, the court ch ecked two sub secti ons: (1) “the Resp ondent di d not make any threat s, and no threat s were i mpli ed by Respondent’s conduc t”; and (2) “other (explain).” In the “other ” sub secti on, the court handw ro te, “the last epi sode was April 27, 2012 & Peti tioner

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i s seeki ng a stalkin g injuncti on 4 months later so no i mmedi ate fear

or alleged thr eats.”

¶30 In i ts deni al order , the First Di stric t Co urt als o checked the separate box entitled “Other (explain).” Next to that, the court penned, “Peti tioner may consi der other legal procee d ing s to restr ain respondent’s al l e ged conduc t.” The major i ty di smi sses 1 7 thi s comment as “ a t mo st , an advis or y opin i on.” See supra ¶ 18. Grandmother arg ues that the language i s a wi ndow into the First Di stric t Court ’s intent that rev eals that the court di d not intend the

or der to fully resolv e the l e g a l i ssu es between the parties aris ing out of the alleged conduc t. Grandmother appears t o suggest that t his language i s akin to a di smi ssal wi thout prej udi ce to refil e “other lega l p ro c e e d in gs

. ” Th e major i ty opin es that Grandmother’ s propo sed interpr etat i on of that language i s “far from obvious and hi ghly specu lative. ” See id

. The major i ty then suggests that the language could have meant that Grandmother was free to present addi tional information concerning sub sequent sta l kin g event s. Rather than specu late about what the F ir st Di stric t Court had in mind, I prefer to confess that i t i s not clear what that cour t intended. And becau se i t i s not clear that the or der embodi es a final judgment, I would conclu de that Husband fai led to establi sh clai m preclusi on.
¶31 Our supreme court has recog ni zed that “collateral estoppel

can yield an unjust outcome i f a p p l i ed wi thout reasonable

17. The form also has a box that reads, “The Court wi ll reconsi der i f a response i s fi led.” The First Di str i ct Court di d not chec k that box, whi ch su g g e sts t hat i t may have consi dered the matter to be conclu ded. However , the court’s comment reg ardin g other legal p ro ceedings creates an ambi gui ty concerning the finali ty o f t he

or d e r. Fo r the reasons di scu ssed herein, such ambi gui ty only s e rv e s to frustrate Husband’s abi li ty to meet hi s burden of demonstrating that t he di smi ssali s a final order

.

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consi derat i on and due care.” Buckner v. Kenn ard, 2004 UT 78, ¶ 15, 99 P.3d 842. In 2005, ei ght y-four percent of people seeki ng ci vil stalkin g injuncti ons in Utah courts did not have the benefi t of

couns el to assi st them. See Utah Ju di ci al Counci l, Fin al Repor t—2006 Surv ey of Self Represented Parties in the Utah St ate Court s at 2 (2006), availab le at ht tp://www .utcourts.go v/surve y. It i s not di ffi cult to conjure scen arios in whi ch zealous appli cati on of

res judi cata prin ci ples to the d eni al of pro se stalkin g injuncti on petiti ons would lead to unjust results.

¶32 For example, a pro se p e ti ti one r wh o m i s ta kenly beli eves she need only allege a single stalkin g inci dent and rec e iv e s a form deni al wi th the chec k nextto t he boxes that r ead “The events yo u de scribed are not stalkin g becau se

. . . .” and “they were not repeat ed” wi ll, under the major i ty’ s holding, be prohibi ted from refil ing unles s and unti l a ne w stalkin g event occurs. That pro se petiti oner wi ll have to awai t a new stalkin g event even i f she could have ini tiall y alleged multi ple stalkin g inci dents, becau se res judi cata prin ci ples prev ent the li tigati on of clai ms that could or should have been assert ed in t he fi rst instanc e. See, e.g. , Gillmor v. Family Lin k, LLC, 2012 UT 38, ¶ 10, 284 P.3d 622. In my o pini on, that would consti tute an unjust outcome—an unjust outcome that

can be avo i ded by si mply refusing to apply preclusi ve effect to the deni al of an ex parte ci vil stalkin g injuncti on petiti on unles s i t i s clear that the deni al was intended to oper ate as a final judgment on the merits.

¶33 Our supreme court has stated that the poli ci es underlyin g
res judi cata inclu de: “(1) preserv ing the integr i ty of the judi ci al

s ys te m b y p re ve n tin g inconsi stent outcomes; (2) promo tin g ju d i c i a l economy by prev entin g prev i ously li tigated i ssu es from being reliti gate d; and (3) p r o t ecti ng li tigants from harassmen t by

vex atious li tigati on.” Buckner, 2004 UT 78, ¶ 14. In the context of ex p a rt e c ivi l stalkin g injuncti ons, none of these purpos e s a re u n d e rcu t by requiring those seeki ng to benefi t fr o m the appli cati on of res judi cata prin ci ples to actually establi sh t ha t t he di stric t court intended i ts deni al to be a fin a l j udgment and by resolv ing

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ambi gui ties in favor of the nonmoving party

. All of t he st a t ed purposes can just as easi ly be promo ted by requiring a di stric t court to make explic i t that i ts deni al of a petiti on for a ci vil stalkin g injuncti on i s intended to be a fin al judgment o n the merits.

¶34 For these reasons, I di ssen t.

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