Liender v. Harris

2025 UT App 2

THE UTAH COURT OF APPEALS

JOEY LIENDER,
Appellant,
v.
JAMES HARRIS,
Appellee.

Per Curiam Opinion
No. 20230884-CA
Filed January 9, 2025

Third District Court, Salt Lake Department
The Honorable Patrick Corum
No. 230900089

Joey Liender, Appellant Pro Se
James Harris, Appellee Pro Se

Before JUDGES GREGORY K. ORME, RYAN M. HARRIS,
and RYAN D. TENNEY.

PER CURIAM:

¶1 After having a previous case against James Harris
dismissed, Joey Liender filed a new complaint against him. The
district court dismissed the complaint on the ground that it was
barred by res judicata. Additionally, the district court found
Liender to be a vexatious litigant and required him to obtain
counsel before submitting any future claim for relief. On appeal,
we are asked to determine whether the court erred in determining
that Liender’s claim was barred by res judicata, in finding Liender
to be a vexatious litigant, and in imposing vexatious litigant
restrictions. Because we conclude that the breach of contract claim
in this case should have been brought in the previous action, we
affirm the district court’s dismissal of Liender’s claim.
Furthermore, because clear and convincing evidence supported
the court’s determination that Liender had twice attempted to
Liender v. Harris

relitigate his claims, we affirm the court’s determination that
Liender is a vexatious litigant. Finally, we conclude that the court
acted within its discretion in requiring Liender to obtain counsel
before filing any future claims for relief.

¶2 Liender hired Harris—an attorney—to represent him in
two civil cases: a divorce case and a civil case against an auto body
shop. Liender signed retainer agreements for each case. In 2021,
Liender filed a complaint against Harris raising claims of legal
malpractice and breach of contract with respect to Harris’s
representation in his divorce case. Liender’s breach of contract
claim in that case was based on Harris’s alleged breach of “his
own code of professional conduct.” The district court dismissed
that complaint with prejudice in a December 2022 order,
determining that the statute of limitations on the malpractice
claim had passed and that there was no private right of action for
breach of the code of professional conduct. Liender moved to
amend his complaint after his claims were dismissed. The district
court denied the motion, explaining that a dismissal with
prejudice “means the action and any future refilings are
prohibited.” Liender did not file a direct appeal but instead filed
a new complaint, this time alleging that Harris breached the
retainer agreement.

¶3 Harris filed a motion to dismiss the complaint on the
ground that Liender’s claim was barred by res judicata. Harris
also asked the court to declare Liender a vexatious litigant.
Liender responded that the allegations in the first complaint
focused on malpractice and the code of professional conduct,
whereas the claim in his second complaint was based on the
retainer agreements.

¶4 The district court granted the motion to dismiss. It also
entered an order declaring Liender to be a vexatious litigant and
requiring him to obtain counsel before filing any future claim for
relief. The court identified fifteen separate cases filed by Liender

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in the past seven years, including several malpractice cases
against other attorneys. The court found that seven of those cases
had been resolved and none were resolved in Liender’s favor. The
court also determined that Liender had twice tried to relitigate his
dismissed claims against Harris—once by seeking to amend his
complaint after dismissal and once by filing the complaint in the
current case. The court determined that both the number of
unsuccessful cases filed and the attempts to relitigate supported a
determination that Liender was a vexatious litigant. See Utah R.
Civ. P. 83(a)(1)(A)–(B). Based on this determination, the court
ordered Liender to obtain legal counsel before filing any future
claim for relief.

¶5 Liender argues that the district court erred in determining
that his complaint was barred by res judicata. “Whether res
judicata, and more specifically claim preclusion, bars an action
presents a question of law that we review for correctness.” Lewis
v. U.S. Bank Trust, NA, 2024 UT App 3, ¶ 14, 542 P.3d 988 (cleaned
up). “For claim preclusion to apply, (1) both cases 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.” Id.
¶ 17 (cleaned up). Liender argues that claim preclusion does not
apply because his breach of contract claim was not adjudicated in
the previous action and could not have been adjudicated because
the court did not allow him to amend his complaint. He also
argues that the final judgment in the previous action was not “on
the merits” because it was based on his mistakes in following
procedures, i.e., the errors in his complaint.

¶6 First, the fact that the specific contract claim Liender raises
in the current action was not previously adjudicated and that the
district court did not allow Liender to amend the complaint to add
it after dismissal does not indicate that his current contract claim
could not have been adjudicated in the prior case. This is a claim

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that could and should have been raised in the prior action because
it “arise[s] from the same operative facts” as the claims he
brought. Id. ¶ 18 (cleaned up). Had Liender raised the claim in his
original complaint or timely moved to amend his complaint, there
would have been nothing to bar the district court from
considering his claim at that time.

¶7 Second, Liender misunderstands the phrase “on the
merits.” “‘On the merits’ for res judicata purposes does not mean
that a court must have reached a substantive determination as to
the validity of the underlying claims.” Cheek v. Iron County Att’y,
2019 UT 50, ¶ 18, 448 P.3d 1236. When a dismissal is based on “an
initial bar to the court’s authority to adjudicate the claims or issues
presented,” such as lack of jurisdiction or improper venue, then a
dismissal is not on the merits. Id. (cleaned up). On the other hand,
if an “order of dismissal was driven by the claims and defenses
asserted,” then it is on the merits. Id. ¶ 19. In this case, the
dismissal was based on Harris’s statute of limitations defense and
Liender’s failure to state a claim as to Harris’s breach of the code
of professional conduct. This is an adjudication on the merits.

¶8 Accordingly, the district court did not err in determining
that Liender’s complaint was barred by res judicata.

¶9 Liender next argues that the district court’s vexatious
litigant order was not based on clear and convincing evidence. 1
Rule 83 of the Utah Rules of Civil Procedure identifies

1. Liender also asserts that the court’s order was improper because
there was no rule 83 motion pending before the court and that the
court did not move to declare him a vexatious litigant on its own
motion. However, Harris requested that Liender be sanctioned as
a vexatious litigant in his motion to dismiss, and Liender
responded to Harris’s request in his response to the motion to
dismiss. Thus, the district court did not exceed its authority in
reaching the vexatious litigant issue.

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circumstances when a “court may find a person to be a ‘vexatious
litigant.’” See Utah R. Civ. P. 83(a)(1). One such circumstance
occurs where, “[a]fter a claim for relief or an issue of fact or law in
the claim has been finally determined, the person two or more
additional times re-litigates or attempts to re-litigate the claim, the
issue of fact or law, or the validity of the determination against
the same party in whose favor the claim or issue was determined.”
Id. R. 83(a)(1)(B). Another such circumstance occurs where a
litigant “has filed at least five claims for relief, other than small
claims actions, that have been finally determined against” them
and “does not have within that time at least two claims, other than
small claims actions, that have been finally determined in that
person’s favor.” Id. R. 83(a)(1)(A). The vexatious litigant finding
must be based on “clear and convincing evidence.” Id. R. 83(c)(1).
The district court found that Liender was a vexatious litigant
under both rule 83(a)(1)(B) and rule 83(a)(1)(A).

¶10 As to rule 83(a)(1)(B), Liender argues that his motion for
leave to amend his complaint after his claims were dismissed does
not constitute an attempt to relitigate his claims, so, at most, he
has attempted to relitigate his claims once, not twice. Liender
provides no legal support for this argument. Liender’s attempt to
file a new complaint in the original case after it was dismissed
with prejudice is similar to his filing a new complaint in the case
at hand—both are attempts to relitigate claims the court already
dismissed with prejudice. See Strand v. Nupetco Assocs. LLC, 2017
UT App 55, ¶ 10, 397 P.3d 724 (explaining that the text of rule
83(a)(1)(B) requires only that the person two or more times re-
litigates or attempts to re-litigate a previously decided matter
against the same party without regard to the particular action in
which the attempt was made). Accordingly, clear and convincing
evidence supported the district court’s determination that
Liender was a vexatious litigant under rule 83(a)(1)(B).

¶11 Because we conclude that the district court did not err in
finding Liender to be a vexatious litigant under rule 83(a)(1)(B),

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we need not consider his arguments concerning the number of
claims that have been finally determined against him. 2

¶12 Finally, Liender asserts that the requirement that he obtain
counsel for all future filings violates the Americans with
Disabilities Act (ADA) and is overly harsh. Liender does not
analyze the ADA or explain how it applies in the context of
vexatious litigant sanctions. Accordingly, Liender’s argument is
inadequately briefed, and he has therefore not carried his burden
of appellate persuasion on that issue. See State v. Draper, 2024 UT
App 152, ¶ 74 (“Under the Utah Rules of Appellate Procedure, a
party must provide this court with an argument that explains,
with reasoned analysis supported by citations to legal authority
and the record, why the party should prevail on appeal. These
requirements are a natural extension of an appellant's burden of
persuasion.” (cleaned up)). As to the harshness of the sanction,
Liender argues that he is “legitimately seeking justice” despite
facing various challenges, that he has demonstrated his ability to
effectively manage cases pro se, and that requiring him to retain
counsel “imposes an unreasonable financial burden.” But nothing
in rule 83 directs the court to consider the sincerity of a pro se

2. Liender argues that the district court erred in finding that seven
cases in addition to the current one have been “finally
determined” against him in the past seven years. Liender
addresses each of these cases individually and asserts that only
two have been “de facto finally determined” against him and that
at most there are “4 cases that may be considered finally
determined.” Liender raises some interesting questions regarding
when a case is “finally determined” under the vexatious litigant
statute, particularly in the situation where a case has been
dismissed without prejudice or where post-judgment litigation is
ongoing. While we are not necessarily convinced by Liender’s
arguments that such cases cannot be considered finally
determined, we leave the resolution of that question for another
day.

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litigant’s efforts, their skill in managing their cases, or the
financial impact of potential filing restrictions before imposing
restrictions permitted by the rule. And rule 83 expressly permits
a court to require a vexatious litigant to “obtain legal counsel
before filing any future claim for relief.” Utah R. Civ. P. 83(b)(3).
Thus, Liender has not demonstrated that the district court
exceeded its discretion in requiring him to obtain counsel before
submitting future filings.

¶13 Accordingly, we affirm the district court’s order
dismissing Liender’s claim and imposing vexatious litigant
restrictions.

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