Peterson v. Armstrong

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.1 JUDGE JOHN A. PEARCE dissented,
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.2 Now
divorced from one another, Husband and 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 Husband leave her 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,3 Husband
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 injunction against 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
Grandmother for approximately twenty minutes. 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,4 the First District Court issued
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).5 Grandmother’s petition again
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.

20130039-CA 3 2014 UT App 247
 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, Husband requested 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 an ex 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.

20130039-CA 4 2014 UT App 247
 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).8 The court may
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 and assistance for persons 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 later lawsuit “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:

20130039-CA 6 2014 UT App 247
 Peterson v. Armstrong

(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 claim preclusion and
issue preclusion because “both . . . require that the first suit must
have resulted in a final judgment on the merits.”9 Sommerville, 2013
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).

20130039-CA 7 2014 UT App 247
 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 of the evidence standard at 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 Court from 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.

20130039-CA 8 2014 UT App 247
 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...)

20130039-CA 9 2014 UT App 247
 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 based on claim preclusion, 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 or renewed 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.12 Cf. State v. Sommerville, 2013 UT

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
 Peterson v. Armstrong

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 for res 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. § 77-3a-
101(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 other legal 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...)

20130039-CA 13 2014 UT App 247
 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 petition for
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
 Peterson v. Armstrong

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 court to 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,” “issue preclusion,” 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 assertion that 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 or initiating 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.”17 The majority dismisses
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
“other legal proceedings.” The majority 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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 Peterson v. Armstrong

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
system by 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 are undercut
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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 Peterson v. Armstrong

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