NPEC v. Miller

               THE UTAH COURT OF APPEALS

                         NPEC, LLC,
                          Appellee,
                              v.
                     GREGORY RYAN MILLER,
                          Appellant.

                       Per Curiam Opinion
                         No. 20190726-CA
                      Filed October 31, 2019

           Third District Court, Salt Lake Department
               The Honorable Andrew H. Stone
                          No. 130905131

                Gregory R. Miller, Appellant Pro Se
            Evan S. Strassberg and Michael C. Barnhill,
                      Attorneys for Appellee

Before JUDGES GREGORY K. ORME, and MICHELE M. CHRISTIANSEN
                FORSTER, and RYAN M. HARRIS.

PER CURIAM:

¶1     Gregory Ryan Miller seeks to appeal the district court’s
order denying him permission to file a document captioned
“Miller’s Notice of Withdrawal From the Settlement Agreement
and Motion for Relief From Further Enforcement of the
Permanent Injunction.” Miller moved for summary reversal of
the district court’s order. Instead of addressing his motion on the
merits, however, we dismiss the appeal for lack of jurisdiction
because the order denying permission to file is not an appealable
order.

¶2     In his motion, Miller casts the appealed order as a denial
of his motion for relief under rule 60(b) of the Utah Rules of Civil
Procedure, which is typically a final and appealable order. See
                          NPEC v. Miller


Migliore v. Livingston Financial, LLC, 

, 

; see also Utah R. Civ. P. 58A(b)(4) (noting that a “separate
document is not required for an order disposing of” a
postjudgment motion brought pursuant to rule 60). However,
that is not an accurate representation of the posture of the case
and the nature of the appealed order.

¶3      Pursuant to rule 83 of the Utah Rules of Civil Procedure,
the district court found Miller to be a vexatious litigant in the
underlying case in July 2015. The July order did not impose
specific restrictions on Miller. But, in September 2015, the district
court entered an order imposing restrictions as permitted under
rule 83. See Utah R. Civ. P. 83(b), (d). Among the available
restrictions in rule 83 is a pre-filing review by a court to assure
that a document proposed by a vexatious litigant does not
consume judicial resources without demonstrating adequate
legal justification. See 

 R.83(b)(4); see also Strand v. Nupetco
Assocs., LLC, 

, 

 (“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.”). Specifically, the district court imposed a
requirement that Miller obtain court permission, in advance, to
file any paper seeking affirmative relief from the court.

¶4     In July 2019, Miller submitted the above-noted proposed
motion for relief to the court for review. The court denied
permission to file the document, noting that the paper did not
raise any non-frivolous issue. Because the document was not
filed with the court or ruled upon on the merits, the challenged
order is not a denial of a motion for relief under rule 60(b).
Rather, Miller filed a notice of appeal from the order denying
permission to file the document.

¶5    We hold that an order denying a vexatious litigant
permission to file a paper is not appealable as a matter of right
under rule 3 of the Utah Rules of Appellate Procedure. Appeals



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                           NPEC v. Miller


of right can generally be taken only from a final judgment that
fully and completely resolves all claims by all parties. See Utah
R. App. P. 3(a) (stating that appeals “may be taken . . . from all
final orders and judgments”); Utah R. Civ. P. 54(a) (stating that a
“judgment” is “a decree or order that adjudicates all claims and
the rights and liabilities of all parties”); see also Loffredo v. Holt,

, 

 (holding that appellate courts
ordinarily do “not have jurisdiction over an appeal unless it is
taken from a final judgment”). An order that does nothing more
than deny a vexatious litigant permission to file a document falls
far short of resolving all claims by all parties in the case.

¶6     Neither is the order the type of postjudgment order that
may be separately appealable. Many postjudgment orders are
appealable as a matter of right. See Utah R. App. P. 4(b) (listing
postjudgment orders from which the appeal time runs “from the
entry of the dispositive order”); Cheves v. Williams, 

, 

 (holding that orders enforcing a judgment are
“separate and distinct” from the underlying judgment and
require a separate notice of appeal). However, there is nothing in
rule 83 that suggests that a vexatious litigant may appeal an
order denying leave to file a document in a postjudgment
setting. Utah R. Civ. P. 83. And orders pursuant to rule 83 are
not identified in other rules that address postjudgment orders
and affect appeals from such orders. See Utah R. App. P. 4(b);
Utah R. Civ. P. 58A(b) (listing postjudgment orders for which no
“separate document” need be filed to permit an appeal to be
taken from the dispositive order).

¶7      Moreover, to permit a vexatious litigant to appeal as a
matter of right from the denial of permission to file what has
been deemed to be essentially a frivolous document would
negate the overall purpose of the rule, which is to avoid waste of
litigant and judicial resources. “We interpret court rules, like
statutes and administrative rules, according to their plain
language.” Burns v. Boyden, 

, 

.



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                           NPEC v. Miller


Furthermore, we will read the plain language of the rule as a
whole, see Board of Educ. v. Sandy City Corp., 

, 

, and “seek to give effect to the intent of the body that
promulgated the rule.” Burns, 

. Allowing such
appeals as a matter of right would merely shift the vexatious
litigant’s inappropriate use of judicial resources from the district
court to the appellate court and would increase the wasteful use
of resources by involving multiple judges to review each appeal.
Construing rule 83 to permit direct appeals from the denial of
permission to file would be inconsistent with the intended effect
of the rule.

¶8      Appellate courts may not act on an appeal unless
appellate jurisdiction has been properly invoked. Copper Hills
Custom Homes, LLC, v. Countrywide Bank, FSB, 

, ¶ 1,

. “An appeal is improper if it is taken from an order
or judgment that is not final . . . unless it fits within an exception
to the final judgment rule.” Bradbury v. Valencia, 

,

. “[O]rders and judgments that are not final can be
appealed if such appeals are statutorily permissible, if the
appellate court grants permission under rule 5 of the Utah Rules
of Appellate Procedure, or if the trial court expressly certifies
them as final for purposes of appeal under rule 54(b) of the Utah
Rules of Civil Procedure.” Id. ¶ 12. An order denying permission
to file a document proposed by a vexatious litigant subject to
pre-filing restrictions is not an appealable order as a matter of
right, and Miller suggests no other ground upon which we
might be able to consider this appeal. Accordingly, this court
lacks appellate jurisdiction and must dismiss the appeal. Id. ¶ 8.




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