Haskell v. Wakefield and Associates

2024 UT App 123

THE UTAH COURT OF APPEALS

KOURTNI HASKELL,
Appellant,
v.
WAKEFIELD & ASSOCIATES, INC., AND MATTHEW FRAWLEY,
Appellees.

Opinion
No. 20230243-CA
Filed September 6, 2024

Third District Court, Salt Lake Department
The Honorable Andrew Stone
No. 190905612

Daniel Baczynski, Attorney for Appellant
Mark A. Nickel, Attorney for Appellees

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1 Several years ago, Kourtni Haskell sued a debt collection
agency, alleging that it had violated various Utah statutes when it
tried collecting a debt from her. The district court dismissed the
case without prejudice. Haskell later sued that same agency again
in a separate case (which is the case at issue in this appeal),
asserting that the agency had violated the same Utah statutes that
were at issue in her first case. But the district court held that the
issue preclusion doctrine prevented Haskell from relitigating
certain issues that had been resolved by the district court in the
first case. Because the precluded issues were dispositive to
Haskell’s claims, the court dismissed her case.

¶2 Haskell now appeals, arguing that issue preclusion does
not apply because the first case was dismissed without prejudice.
Haskell v. Wakefield & Assocs.

For the reasons set forth below, we disagree. We therefore affirm
the district court’s ruling and its dismissal of Haskell’s case.

BACKGROUND 1

Haskell’s First Case Is Dismissed Without Prejudice

¶3 In 2016, Wakefield & Associates, Inc. (Wakefield), a debt
collection agency, obtained a default judgment against Kourtni
Haskell. Two years later, Haskell sued Wakefield in Tooele
County, alleging that Wakefield was not a properly licensed debt
collector under the Utah Collection Agency Act (UCAA)
(hereinafter the Tooele Case). In Haskell’s view, this UCAA
violation amounted to a “deceptive [or] unconscionable act” that
rendered the default judgment void under the Utah Consumer
Sales Practices Act (UCSPA). Wakefield later filed a motion for
judgment on the pleadings. See Utah R. Civ. P. 12(c).

¶4 While the Tooele Case was still pending, Haskell reached
out to Wakefield’s president, Matthew Frawley, to negotiate a
settlement. According to Haskell’s subsequent account, Frawley
initially accepted her proposal. But a few days later, he added a
confidentiality term, which she rejected. Haskell believed the
parties had “agreed to settle the case” and accordingly moved for
leave to amend her complaint to add claims against Frawley for
violation of the purported settlement agreement. In response,
Wakefield argued that the email correspondence Haskell sought

1. “When reviewing a decision granting a motion to dismiss, we
view the facts pled in the complaint and all reasonable inferences
from them in the light most favorable to the plaintiff.” Legal Tender
Servs. PLLC v. Bank of Am. Fork, 2022 UT App 26, n.1, 506 P.3d 1211
(quotation simplified).

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to introduce to support her new claims was inadmissible and, in
any event, did not establish “a meeting of the minds.”

¶5 At the hearing on the motion for judgment on the
pleadings, Haskell raised something of a new claim—that
Wakefield’s misrepresentation about its business registration
status had “deceived or misled” her. The court, however, ruled
that this new allegation failed to comply with rule 9(c), which
requires that fraud claims be pleaded “with particularity.” See id.
R. 9(c).

¶6 The district court then granted Wakefield’s motion for
judgment on the pleadings on Haskell’s other claims. It ruled that
the registration claims failed as a matter of law for several
independent reasons: first, the UCAA does not authorize a private
right of action; second, a failure to obtain a license under the
UCAA does not deprive a business of legal standing to file or
maintain a debt collection action in court; and third, the act of
collecting a debt without being properly licensed under the
UCAA is not a violation of the UCSPA. 2 The court additionally

2. We’ve since rejected claims similar to Haskell’s in several cases.
See Fell v. Alco Cap. Group LLC, 2023 UT App 127, ¶¶ 23, 37, 538
P.3d 1249 (noting that “the UCAA does not authorize a private
right of action” and holding that “without some showing of an
affirmative misrepresentation, [a] violation of the UCAA [does]
not constitute a violation of the UCSPA”), cert. denied, 544 P.3d 457
(Utah 2024); Meneses v. Salander Enters. LLC, 2023 UT App 117,
¶¶ 14, 21, 537 P.3d 643 (same), cert. denied, 544 P.3d 456 (Utah
2024); see also LeBaron v. Doctors & Merchs. Credit, Inc., 2024 UT
App 42, ¶ 2, 547 P.3d 855 (stating that Fell and Meneses
“conclusively resolve[d]” these issues). We also note that “[w]ith
the exception of its final section—authorizing creditors to recover
collection fees in addition to other amounts owed by a debtor—
the UCAA was recently repealed by the Utah Legislature.”
Meneses, 2023 UT App 117, ¶ 3 n.1.

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denied Haskell’s motion for leave to amend, ruling that the parties
had not reached an enforceable agreement and that the proposed
amendment would therefore be futile.

¶7 Of some note for this appeal, the district court said in its
oral ruling that the dismissal “should be a dismissal without
prejudice with respect to the [rule] 9(c) issue.” It told Haskell’s
counsel,

[I]f you can put together a complaint that alleges
that Ms. Haskell, in fact, . . . relied on some
statement from [Wakefield] that they were a
licensed collection agency and that that somehow
created some deception or fraud, then I think it
would be appropriate to reassert that. I’m not going
to bar you from reasserting that.

However, the court emphasized that there was “no claim” for the
UCAA and UCSPA arguments standing alone, and the court
opined that its ruling on that would be “law of the case or res
judicata at this point.” In the court’s subsequent written ruling,
the court stated that “each of the claims” was “dismissed without
prejudice.”

Haskell’s Second Case and the Initial Appeal

¶8 After the dismissal of the Tooele Case, Haskell filed a new
case against Wakefield and Frawley (from here on, collectively,
Wakefield), this time in Salt Lake County. As indicated, this is the
case at issue in this appeal.

¶9 Haskell filed an initial complaint and then a slightly
amended version later. In substance, both were virtually identical
to the proposed amended complaint that the district court in the
Tooele Case had ruled would be “futile.” Notably, the complaint

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added no new facts to substantiate Haskell’s allegation that
Wakefield deceived her.

¶10 Wakefield filed a motion to dismiss. Wakefield’s motion
argued that issue preclusion applied, and though a touch unclear,
its briefing arguably asserted that claim preclusion applied as
well.

¶11 The district court granted the motion to dismiss on claim
preclusion grounds. Under controlling precedent, the
applicability of claim preclusion turns on a three-part test:

First, both cases must involve the same parties or
their privies. Second, 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. Third, the first suit must have resulted
in a final judgment on the merits.

Mack v. Utah State Dep’t of Com., 2009 UT 47, ¶ 29, 221 P.3d 194
(quotation simplified). Applying that test, the district court ruled
that claim preclusion barred the suit, and it accordingly dismissed
the complaint with prejudice.

¶12 Haskell appealed, and in doing so, she only challenged the
district court’s conclusion that the third element of claim
preclusion had been satisfied. Haskell v. Wakefield & Assocs. Inc.
(Haskell I), 2021 UT App 123, ¶ 14, 500 P.3d 950. In Haskell’s view,
there could not be a “final judgment on the merits” for purposes
of claim preclusion since the earlier claim was dismissed without
prejudice. Id. (quotation simplified). We agreed, holding that, “in
the claim preclusion context,” “a judgment which by its terms
purports to be without prejudice does not operate as a final
judgment on the merits.” Id. ¶ 16 (quotation simplified). Indeed,

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we noted that the “without prejudice” designation is in part
designed “to deprive a dismissal of preclusive effect.” Id. 3

¶13 In its briefing, Wakefield asked us to alternatively affirm
on issue preclusion grounds. Id. ¶ 21. Addressing that potential
argument, we noted that

for issue preclusion to apply, (i) the party against
whom issue preclusion is asserted must have been a
party to or in privity with a party to the prior
adjudication; (ii) the issue decided in the prior
adjudication must be identical to the one presented
in the instant action; (iii) the issue in the first action
must have been completely, fully, and fairly
litigated; and (iv) the first suit must have resulted in
a final judgment on the merits.

Id. ¶ 22 (quotation simplified). We also noted that while issue
preclusion “was not a basis” for the district court’s dismissal, we
could in theory affirm on this as an alternative basis if the grounds
for doing so were apparent from the record. Id. ¶ 21. But we
declined to do so. We observed that there was “possible merit” to
Wakefield’s “contention that the dismissal without prejudice
clearly was not intended to permit Haskell to disregard and
ignore the adverse rulings” from the Tooele Case “and start over
before a new judge.” Id. (quotation simplified). We then observed,
however, that even if “the on the merits prong of the issue

3. We also acknowledged “some inconsistency” between the
district court’s oral ruling from the prior case (which indicated
that just some of Haskell’s claims were barred) and its written
ruling (which dismissed each of the claims without prejudice).
Haskell I, 2021 UT App 123, ¶ 18, 500 P.3d 950. But we determined
that this ultimately did not matter because, “where a court’s oral
ruling differs from a final written order, the latter controls.” Id.
¶ 19 (quotation simplified).

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preclusion analysis” was satisfied, “the remaining prongs” of
issue preclusion “require[d] further consideration” by the district
court. Id. (quotation simplified). We accordingly declined to rule
on this basis and instead remanded for further proceedings. See
id. ¶ 23. 4

Haskell’s Second Case Is Remanded

¶14 On remand, Wakefield filed another motion to dismiss,
again asserting issue preclusion. Haskell opposed the motion, and
in doing so, she only challenged the application of the fourth
element of issue preclusion (which, again, is whether there was a
“final judgment on the merits” in the earlier case). In Haskell’s
view, Haskell I’s conclusion that the dismissal without prejudice
from the Tooele Case did not qualify as a “final judgment on the
merits” for purposes of claim preclusion applied with equal force
to the identically worded element of issue preclusion.

¶15 The district court disagreed. The court issued a written
ruling in which it concluded that the “final judgment on the
merits” element of issue preclusion means something different
than the similarly phrased element from claim preclusion. The
court then ruled that although the dismissal in the Tooele Case

4. To avoid any potential confusion moving forward, we note that
in the opinion we’ve just discussed, we referred to the earlier
litigation from Tooele as Haskell I. But as noted, that litigation
didn’t result in an appeal. To remain consistent with appellate
norms (under which the roman numeral appellation typically
attaches to a decision from an appeals court), and to avoid
inconsistencies with how we refer to other district court
proceedings between these parties that are also discussed in this
opinion, we’ve chosen to refer to the Tooele litigation as the
Tooele Case, see supra ¶ 3, thus reserving the Haskell I label for the
appellate decision that resolved the claim preclusion issues.

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was without prejudice, that dismissal still qualified as a final
judgment on the merits for purposes of issue preclusion.

¶16 The district court then identified seven issues that, in its
view, were fully and fairly litigated in Haskell I. These included:

• whether Wakefield had standing to maintain a debt
collection action;

• whether Haskell had standing to maintain a private cause
of action for alleged UCAA violations;

• whether Wakefield’s alleged violation of the UCAA’s
registration requirement could support a claim for
violation of the UCSPA;

• whether Wakefield’s alleged misrepresentation to Haskell
about its registration status under the UCAA was a per se
deceptive practice;

• whether a Utah court had authority to declare Wakefield’s
judgments against Haskell void;

• whether Wakefield should be ordered to disgorge money
it had collected while an unregistered debt collector; and

• whether the parties had entered into an enforceable
settlement agreement.

¶17 Having concluded that these issues were now settled
under the issue preclusion doctrine, the district court then
concluded that Haskell was not entitled to relief on any of her
claims. It accordingly dismissed the case with prejudice.

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ISSUE AND STANDARD OF REVIEW

¶18 Haskell appeals the district court’s decision to dismiss her
case—and, more particularly, the court’s conclusion that issue
preclusion prevented her from relitigating certain issues that were
decided in the Tooele Case. The question of whether “issue
preclusion bars litigation in a subsequent action is a question of
law that is reviewed for correctness on appeal.” Kuhar v. Thompson
Mfg., Inc., 2024 UT 12, ¶ 14, 552 P.3d 174.

ANALYSIS

¶19 Haskell challenges the district court’s conclusion that issue
preclusion applies to this case and, thus, that the doctrine
prevented her from relitigating certain issues that had previously
been litigated in the Tooele Case.

¶20 As we recognized in the prior appeal, the elements of issue
preclusion are:

(i) the party against whom issue preclusion is
asserted must have been a party to or in privity with
a party to the prior adjudication; (ii) the issue
decided in the prior adjudication must be identical
to the one presented in the instant action; (iii) the
issue in the first action must have been completely,
fully, and fairly litigated; and (iv) the first suit must
have resulted in a final judgment on the merits.

Haskell I, 2021 UT App 123, ¶ 22, 500 P.3d 950 (quotation
simplified).

¶21 Haskell does not challenge the district court’s conclusions
on the first three elements. Of particular note, even though the
district court identified a series of issues that it believed had been

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fully and fairly litigated in the Tooele Case, Haskell does not
challenge those conclusions in this appeal.

¶22 Instead, Haskell only challenges the district court’s
conclusion that the fourth element had been satisfied. In Haskell’s
view, the phrase “final judgment on the merits” means the same
thing for purposes of issue preclusion that it means for claim
preclusion. 5 Because the dismissal in the Tooele Case was without
prejudice, and because we held in Haskell I that a dismissal
without prejudice does not satisfy the “final judgment on the
merits” element of claim preclusion, Haskell asks us to now hold
that the identically worded fourth element of issue preclusion was
not satisfied either. But we disagree with Haskell’s view of how
this element of issue preclusion operates.

¶23 The starting place for our analysis is our supreme court’s
treatment of this very question in Oman v. Davis School District,
2008 UT 70, 194 P.3d 956. Because of the centrality of that decision
to our analysis, we recount its background at some length.

¶24 In Oman, an employee of a school district was fired, after
which he sued the school district and several district employees
in federal court. See id. ¶¶ 10–11. In his suit, the employee raised
a claim under 42 U.S.C. section 1983, and pursuant to the federal
court’s supplemental jurisdiction, he also raised state law claims
for breach of contract, breach of the implied covenant of good
faith and fair dealing, intentional infliction of emotional distress,
defamation, and violation of a Utah statute governing the
termination of school district employees. See id. ¶¶ 11, 15. The
federal district court subsequently granted the defendants’
request for summary judgment on the section 1983 claim. See

5. As noted, the third element of claim preclusion is that “the first
suit must have resulted in a final judgment on the merits.” Mack
v. Utah State Dep’t of Com., 2009 UT 47, ¶ 29, 221 P.3d 194
(quotation simplified).

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id. ¶ 11. As part of that decision, the federal court “made several
findings and conclusions” about an employment agreement
between the employee and the school district, and the court also
concluded that there had been “a sufficient basis for termination
for cause.” Id. ¶ 15 (quotation simplified). After the federal district
court “disposed of the § 1983 claim over which it had subject
matter jurisdiction,” it then “declined to exercise supplemental
jurisdiction over [the employee’s] remaining state law claims and
dismissed them without prejudice.” Id. ¶ 16.

¶25 The next year, the employee filed a complaint in state court
in which he pleaded the same state causes of action that had been
dismissed without prejudice by the federal district court. See id.
¶ 12. The state district court later granted summary judgment to
the defendants on multiple grounds. See id. ¶ 17. One of them was
the court’s conclusion that “under the doctrine of issue
preclusion, it was bound by” the federal district court’s
determinations—including its determination that the employee
“was properly terminated for cause.” Id.

¶26 The employee appealed. On appeal, the Utah Supreme
Court affirmed the district court’s conclusion that issue preclusion
applied. The supreme court recited the same four elements for
issue preclusion that we recited above—including the fourth
element, which requires a showing that “the first suit . . . resulted
in a final judgment on the merits.” Id. ¶ 29 (quotation simplified).
The supreme court then noted that the employee was arguing that
“there was no final adjudication because the federal court
dismissed his state law breach of contract claim ‘without
prejudice.’” Id. ¶ 30. The very next sentence reads: “In making this
argument, [the employee] confuses issue preclusion with claim
preclusion.” Id. ¶ 31 (emphasis added). The court then drew a
distinction between claim preclusion and issue preclusion. It
noted that while “claim preclusion corresponds to causes of
action, issue preclusion corresponds to the facts and issues
underlying causes of action.” Id. The court reemphasized that

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issue preclusion “prevents the relitigation of issues that have been
once litigated and determined in another action.” Id. (quotation
simplified). The court then held that the “issue of whether” the
school district had violated the employee’s contractual rights by
terminating him “was squarely before the federal court, was
litigated by the parties, and was necessary to the court’s final
judgment on the § 1983 claim.” Id. ¶ 32. As a result, the supreme
court held that the federal court’s “findings and conclusions
[were] binding in subsequent actions under the doctrine of issue
preclusion.” Id.

¶27 In this appeal, Haskell is claiming that a dismissal without
prejudice cannot satisfy the “final judgment on the merits”
element of issue preclusion. But in Oman, our supreme court held
that by arguing that there “was no final adjudication because the
federal court dismissed his state law breach of contract claim
‘without prejudice,’” the employee was “confus[ing] issue
preclusion with claim preclusion.” Id. ¶¶ 30–31. This analysis and
this outcome seem directly at odds with Haskell’s argument.

¶28 In her reply brief, Haskell nevertheless suggests that “some
of [the employee’s] claims” in Oman had actually been “dismissed
with prejudice in the first suit,” which, in her view, is how issue
preclusion’s fourth element was satisfied in that case. (Emphasis
in original.) But Haskell didn’t identify which issues she was
referring to, nor did she provide any citation to support this
assertion. Regardless, it does seem that Haskell is correct up to a
point. The federal district court’s ruling from Oman is publicly
available, and the federal court said in that ruling that it was
dismissing the section 1983 claim with prejudice. See Oman v.
Davis School Dist., 2005 WL 8176568, at *6 (D. Utah May 12, 2005).

¶29 But contrary to Haskell’s view, it does not appear to us that
the Utah Supreme Court thought that the with prejudice aspect of
the dismissal of the section 1983 claim is what satisfied issue
preclusion’s fourth element. Indeed, although the supreme court

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expressly flagged the fourth element as being at issue on appeal,
the phrase “with prejudice” doesn’t appear even a single time in
the supreme court’s opinion. Instead, we had to track down the
federal district court’s ruling ourselves to discover this possible
predicate for this alleged analytical connection. If the supreme
court meant for the with prejudice dismissal to be part of the legal
answer to this question, it would be curious that the court didn’t
think to say so.

¶30 Regardless, to the extent that Oman left this in some doubt,
several things persuade us that, even though claim preclusion
requires a dismissal with prejudice to satisfy its “final judgment
on the merits” element, issue preclusion does not.

¶31 First, the supreme court in Oman drew a distinction
between claim preclusion (which, it explained, determines
whether an individual cause of action can be relitigated) and issue
preclusion (which, it explained, determines whether individual
issues can be relitigated). See Oman, 2008 UT 70, ¶ 31. Addressing
issue preclusion in particular, the court emphasized that its three
“purposes” are “(1) preserving the integrity of the judicial system
by preventing inconsistent judicial outcomes; (2) promoting
judicial economy by preventing previously litigated issues from
being relitigated; and (3) protecting litigants from harassment by
vexatious litigation.” Id. ¶ 28 (quotation simplified).

¶32 In our view, these purposes would be undermined if courts
were to allow relitigation of issues that had been “completely,
fully, and fairly litigated” before (which is issue preclusion’s third
element) simply because the prior dismissal had been entered
without prejudice. Such a rule would facilitate inconsistent
outcomes, weaken judicial economy, and enable harassment and
vexatious litigation, which are the very concerns that issue
preclusion seems designed to forestall.

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¶33 Second, the Restatement has expressly recognized that as a
general matter, there is a “distinction . . . between finality for
purposes of merger and bar and finality for purposes of issue
preclusion.” Restatement (Second) of Judgments § 27 cmt. k (Am.
L. Inst. 1982). 6 The Restatement further posits that “for purposes
of issue preclusion (as distinguished from merger and bar), ‘final
judgment’ includes any prior adjudication of an issue in another
action that is determined to be sufficiently firm to be accorded
conclusive effect.” Id. § 13.

¶34 Of note, our supreme court seems to have recognized that
there is some distinction between the two concepts as well. In
Amundsen v. University of Utah, the court initially held that the
finality elements of claim preclusion and issue preclusion are both
“the same” in that they’re both grounded in rule 41 of the Utah
Rules of Civil Procedure. 2019 UT 49, ¶ 25 n.7, 448 P.3d 1224. But
the court then recognized that there’s also a subtle distinction—
namely, that “issue preclusion requires a final judgment on the
merits with respect to an identical issue,” while “claim preclusion
requires a final judgment on the merits with respect to a claim that
was presented or could and should have been raised in the prior
proceeding.” Id. Thus, although these elements are indeed
worded identically, Amundsen and the Restatement have both
recognized that they can (and indeed do) function differently.

¶35 Third, it “is widely recognized” by other courts that have
examined the question of how these elements function differently
“that the finality requirement is less stringent for issue preclusion
than for claim preclusion.” Christo v. Padgett, 223 F.3d 1324, 1339
(11th Cir. 2000); see also Garcia v. Prudential Ins. Co. of Am., 293 P.3d
869, 874 n.7 (Nev. 2013) (same). For example, the Idaho Supreme
Court has held that “while a judgment may not be final for

6. The Restatement’s reference to “merger and bar” is understood
to mean claim preclusion. See Restatement (Second) of Judgments
§ 27 cmt. k (Am. L. Inst. 1982).

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purposes of merger and bar (i.e., claim preclusion), it may be final
for purposes of issue preclusion.” Eastern Idaho Agric. Credit Ass’n
v. Neibaur, 987 P.2d 314, 320 (Idaho 1999) (quotation simplified).
And the Restatement likewise posits that “litigation may have
reached a stage at which issue preclusion is appropriate even
though claim preclusion . . . is not.” Restatement (Second) of
Judgments § 27 cmt. k.

¶36 Fourth, under rule 41(b) of the Utah Rules of Civil
Procedure, a dismissal for lack of jurisdiction does not “operate[]
as an adjudication on the merits.” As a result, it functions as a
dismissal without prejudice. See Holmes v. Cannon, 2016 UT 42,
¶¶ 8–10, 387 P.3d 971. But even so, our supreme court has
recognized that issue preclusion still applies if a prior case was
dismissed for lack of jurisdiction, even though such a dismissal
was entered without prejudice. Amundsen, 2019 UT 49, ¶ 26. Other
courts under similar jurisdictional schemes have held the same.
See, e.g., National Ass’n of Home Builders v. EPA, 786 F.3d 34, 41
(D.C. Cir. 2015); Jarvis v. Nobel/Sysco Food Services Co., 985 F.2d
1419, 1424–25 (10th Cir. 1993) (holding that an earlier dismissal
“without prejudice on jurisdiction grounds” satisfied the
“requirements of issue preclusion”); Wood v. Sellers, No. 21-13359,
2022 WL 2388428, at *2 (11th Cir. July 1, 2022) (noting that “it is
hornbook law that, when a suit is dismissed on jurisdictional
grounds,” the “judgment remains effective to preclude
relitigation of the precise issue of jurisdiction . . . that led to the
initial dismissal” (quotation simplified)).

¶37 Fifth, drawing on these principles, many cases have thus
expressly held that a dismissal with prejudice is not required to
satisfy the finality element of issue preclusion. In Mendenhall v.
City of Indianapolis, for example, the Indiana Court of Appeals
considered a case very much like Oman—namely, a federal
district court had made certain rulings as part of its dismissal of a
section 1983 suit, after which it dismissed related state law claims
without prejudice. 717 N.E.2d 1218, 1225–26 (Ind. Ct. App. 1999).

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When the plaintiff later refiled similar claims in state court, the
state district court held that the federal district court’s rulings on
certain issues had preclusive effect. See id. at 1225. On appeal, the
plaintiff later argued that issue preclusion did not apply because
the state law claims had been “dismissed without prejudice” by
the federal district court. Id. But the court of appeals disagreed,
holding that the plaintiff’s argument “apparently confus[ed] issue
preclusion with claim preclusion.” Id. (emphases in original).

¶38 In Germain Real Estate Co. v. HCH Toyota, LLC, the Eighth
Circuit likewise held that under Arkansas Law, a prior dismissal
without prejudice was “sufficiently firm” so as “to be considered
final for purposes of issue preclusion.” 778 F.3d 692, 696 (8th Cir.
2015). And other courts have agreed with this general principle as
well. See, e.g., Garcia, 293 P.3d at 874 n.7 (noting that the cases the
party cited for the purpose of arguing “that a dismissal without
prejudice [was] not an adjudication on the merits [were] cases
dealing with claim preclusion and not issue preclusion”); Bank of
N.Y. v. Romero, 382 P.3d 991, 995 (N.M. Ct. App. 2016) (“Although
both doctrines may be implicated in a single case, we note that a
designation of a dismissal as being ‘with prejudice’ is relevant in
a claim preclusion analysis but not in an issue preclusion analysis.”
(emphases in original)).

¶39 Returning to this appeal, the weight of authority from both
prior Utah cases and elsewhere has persuaded us that although
the tests for issue preclusion and claim preclusion both include a
“final judgment on the merits” element, those elements function
differently. And more particularly, we’re persuaded that while
claim preclusion requires an earlier dismissal with prejudice, issue
preclusion requires a less stringent version of finality that can be
satisfied by an earlier dismissal without prejudice. Because this
was the sole basis for Haskell’s challenge to the district court’s
ruling on issue preclusion, we affirm the district court’s
conclusion that issue preclusion applied in this case. And because

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Haskell has not challenged the dismissal of her suit on any other
ground, we affirm that dismissal as well. 7

CONCLUSION

¶40 The district court concluded that issue preclusion
prevented Haskell from relitigating certain issues that had been
decided in a prior case. We affirm that conclusion as well as its
resultant dismissal of the case.

7. In its brief, Wakefield argues that Haskell’s appeal was
frivolous, and it accordingly asks us to award attorney fees
pursuant to rule 33 of the Utah Rules of Appellate Procedure.
While Wakefield has prevailed in this appeal, we don’t believe
that the outcome was so obvious that Haskell’s appeal should be
regarded as frivolous. We accordingly deny Wakefield’s request
for appellate attorney fees.

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