Wilson v. Wilson

2024 UT App 87

THE UTAH COURT OF APPEALS

TKS CO-PACK MANUFACTURING, LLC AND TROY WILSON,
Appellants and Cross-appellees,
v.
DOUG WILSON,
Appellee and Cross-appellant.

Opinion
No. 20210855-CA
Filed June 6, 2024

Fourth District Court, Provo Department
The Honorable Robert A. Lund
The Honorable James R. Taylor
No. 200401547

Michael D. Stanger, Scarlet R. Smith, and R. Jesse
Davis, Attorneys for Appellants and Cross-appellees
Brady Brammer and Brenton Ranck, Attorneys for
Appellee and Cross-appellant,
assisted by law student Annie Carmack 1 0F

JUDGE JOHN D. LUTHY authored this Opinion, in which JUDGES
GREGORY K. ORME and RYAN M. HARRIS concurred, with the
exception of Part II.B.2.b. JUDGE HARRIS authored a separate
opinion regarding Part II.B.2.b, which JUDGE ORME joined.

LUTHY, Judge:

¶1 This opinion addresses a number of issues related to civil
stalking injunctions. It also addresses the requirements for
judgments as set forth in rule 58A of the Utah Rules of Civil
Procedure and the range of discretion given to district courts
when deciding whether voluntary dismissal under rule 41(a) of

1. See Utah R. Jud. Admin. 14-807 (governing law student practice
in the courts of Utah).
TKS Co-Pack Manufacturing, LLC v. Wilson

the Utah Rules of Civil Procedure should be granted with or
without prejudice.

¶2 Troy Wilson is the president and co-owner of TKS Co-Pack
Manufacturing, LLC (TKS). He hired his brother Doug Wilson to
work at TKS. After a time, Doug 2 left TKS. Subsequently, Troy
1F

and TKS (collectively, the TKS parties) filed a complaint against
Doug, which contained several tort claims as well as a request for
a civil stalking injunction. With their complaint, the TKS parties
also filed a motion for an ex parte civil stalking injunction, an ex
parte temporary restraining order, and a preliminary injunction.
The district court granted a temporary stalking injunction, and
Doug then filed an answer and counterclaims. Doug later asked
that his counterclaims be dismissed, and they were dismissed
without prejudice.

¶3 After an evidentiary hearing, the district court issued a
permanent civil stalking injunction (the Stalking Injunction)
against Doug and in favor of Troy. The Stalking Injunction also
protected “[a]ny customer of TKS” and “[a]ny employees of TKS.”
Subsequently, Doug posted on Facebook about the Stalking
Injunction and communicated with a prior TKS customer (Prior
Customer). The TKS parties then filed a motion requesting that
Doug be held in contempt for violating the Stalking Injunction.
The district court held another evidentiary hearing, applied the
standard for criminal contempt, found that Troy had not
established the alleged violations beyond a reasonable doubt, and
denied Troy’s motion.

¶4 In the meantime, the TKS parties had also moved to
dismiss their tort claims without prejudice. Doug opposed the
motion and moved for dismissal of the claims with prejudice. The
court dismissed the tort claims without prejudice.

2. Because the parties share a surname, we use their given names,
with no disrespect intended by the apparent informality.

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¶5 The TKS parties appeal the district court’s decision not to
hold Doug in contempt. Doug also appeals, asserting that the
Stalking Injunction was not properly granted in the first place and
that the district court erred by dismissing the TKS parties’ tort
claims without prejudice. 3
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¶6 As to Doug’s appeal, we conclude that the district court did
not err in issuing the Stalking Injunction and that the court did
not abuse its discretion in dismissing the TKS parties’ tort claims
without prejudice. As to the TKS parties’ appeal, we unanimously
affirm the district court’s determinations to apply the criminal
standard in the contempt proceedings and to not hold Doug in
contempt for communicating with Prior Customer. Additionally,
based on Judge Harris’s separate opinion, which is joined by
Judge Orme, we also affirm the district court’s determination to
not hold Doug in contempt based on the allegation that his
Facebook post and related comments violated the Stalking
Injunction.

BACKGROUND

Pre-litigation History

¶7 Troy offered Doug, who was then living in California, a job
at TKS, a business in which Troy held a 50% interest. Doug moved
to Utah and began working at TKS as a production manager. After
about a year and a half, Doug left TKS in mid-2020. Following
Doug’s departure, Troy received reports from TKS employees
that Doug had allegedly behaved inappropriately toward
multiple employees while he worked there.

3. As explained in more detail below, although Doug’s appeal has
been designated as a cross-appeal for ease of reference, the two
appeals in this matter are separate and distinct appeals. See infra
note 5.

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¶8 Doug then began working for TKS’s landlord (Landlord),
a company that had its office in the same building as TKS. In his
new role, Doug continued to have interactions with TKS
employees that the TKS parties believed were harassment. Thus,
Troy emailed Landlord to request that it appoint another of its
employees as a point of contact for TKS. TKS also terminated the
employment of several of its employees who it believed were
attempting to sabotage TKS at Doug’s request.

The TKS Parties’ Complaint

¶9 In October 2020, the TKS parties filed a complaint against
Doug, requesting a civil stalking injunction and asserting seven
tort claims: tortious interference with employment relationships,
tortious interference with customer relationships, tortious
interference with government relationships, tortious interference
with the landlord-tenant relationship, defamation, tortious
infliction of emotional distress, and trespass. The TKS parties
alleged, among other things, that after Doug left TKS, he had

• driven a forklift “into TKS’s roll up door”;

• convinced several TKS employees to help him fabricate
safety violations by TKS by doing such things as staging
pictures to make it look like TKS was violating workplace
safety regulations;

• convinced several TKS employees to sabotage TKS by
doing such things as putting “grease on a brand new filter
that was being used in production”;

• attempted to falsely “blow the whistle” on TKS by
reporting that TKS was transporting CBD without a permit
when TKS had such a permit;

• persuaded Landlord that TKS “was dumping paint and
other toxic items into the sewer,” resulting in Landlord

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terminating TKS’s lease and then reinstating it after
another company was identified as the source of the
dumping; and

• continued to harass TKS employees by confronting them
for speeding and using a roundabout improperly,
“overzealously monitor[ing]” them, “sexually harass[ing]
female employees, both on site . . . and via text and phone,”
and telling “an employee of TKS that he now knows ‘why
Cain killed Abel.’”

The TKS parties asserted that “[t]hese actions by Doug [had]
caused Troy and other employees of TKS to fear for their safety
and alter their commuting patterns in an attempt to avoid a
confrontation with Doug.”

Temporary Civil Stalking Injunction

¶10 With their complaint, the TKS parties also filed a motion
for an ex parte civil stalking injunction, an ex parte temporary
restraining order, and a preliminary injunction. In that motion,
the TKS parties alleged many of the details recounted above and
requested that the district court “issue a stalking injunction
against Doug and issue an injunction in the form of a Temporary
Restraining Order and preliminary injunction enjoining Doug
from having any contact with any TKS employee (including Troy)
or customer, and to stay away from Troy’s home, and to stay out
of TKS’s facilities.” The district court issued an ex parte civil
stalking injunction on October 27, 2020.

Doug’s Suicide Attempt

¶11 Three days later, Doug attempted suicide, prompting the
TKS parties to move to modify the temporary stalking injunction
in light of Doug’s alleged actions during that episode. Specifically,
the TKS parties alleged that Doug had come with a shotgun in his
car to the building that housed TKS and Landlord, that he had

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gone into the building and left a suicide note, and that he had
“then [gone] to the mountains with the intent of taking his own
life.” The TKS parties further alleged that Doug had “eventually
[been] talked out of killing himself, . . . placed in police custody,
and then transferred to a hospital.” They continued, “After being
released from the hospital, Doug has returned to work. This is
problematic as Doug and Troy both work in the same building
and the [temporary stalking injunction] specifically orders Doug
to ‘stay away’ from Troy’s work.” The TKS parties explained that
law enforcement had “declined” to remove Doug from his
workplace because the temporary injunction identified as
protected premises “the suite . . . of the building instead of the
building itself.” Accordingly, the TKS parties sought an
amendment that would clarify that the term “‘stay away’ includes
but is not limited to staying away from the building and the
parking lot.” They also requested “language specifically stating
that Doug is prohibited from possessing a firearm.”

Doug’s Answer and Counterclaims

¶12 In November 2020, Doug filed both an answer to the TKS
parties’ complaint and several counterclaims. He asserted that the
allegations against him were based on “speculation and rumors”
and that he “was distraught over being accused of sexual
misconduct.” He also recited the severe impact the allegations
were having on his health, job, and marriage. Doug’s complaint
then recounted Doug’s attempt to end his life:

On October 30, 2020[,] Doug Wilson left a suicide
note at his . . . desk [in Landlord’s office]. The note
read:

“To my family I love you all with everything
I have. I feel like there is no other way out of
where Troy has put me. I do not have the will
or strength to fight. I have come to the end of
the line. Forgive me. I want no funeral and no

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burial. Cremate me and take my ashes
anywhere. Kids I love you so much.
Everything I own I give to my wife, the
house, the belongings, everything.”
—Douglas Wilson.

He did not have any shotgun at the time he left the
note. He left [Landlord’s office], obtained a shotgun
and went to the mountains with intent to take his
own life.

Doug’s complaint relayed how he encountered hunters in the
mountains, he voluntarily surrendered the gun to them, and they
called the police to help him. It further stated that the police had
noted, “Douglas believes [his family] would be better off without
him because his brother Troy is going to make him lose his job so
he can’t support them.” (Alteration in original.) Doug’s complaint
then asserted counterclaims of intentional infliction of emotional
distress, defamation/libel/slander, interference with economic
and employment relations, and wrongful use of civil proceedings.
Doug later voluntarily dismissed his counterclaims, purportedly
at the behest of his mother. His counterclaims were dismissed
without prejudice.

Permanent Civil Stalking Injunction

¶13 In December 2020, the district court held an evidentiary
hearing on the motion for a civil stalking injunction. After hearing
evidence and arguments, the court first identified incidents that it
felt did not provide grounds for making the stalking injunction
permanent. Specifically, it said that the allegation that Doug left
the suicide note with the intent to harm Troy was “extreme” and
“unlikely” and that “[t]he placement of the note at [Doug’s] work”
did not evidence “an intent to direct that note or the activity that
was . . . intended toward either . . . [TKS] or [Troy].” The court also
said that it did not interpret Doug’s reference to Cain and Abel
“as a threat to commit bodily harm.” And it reasoned that Doug’s

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efforts to “enforce parking restrictions” were not “necessarily
retaliatory toward . . . the company . . . or Troy . . . or directly
committed in a way that intended . . . either physical harm or
emotional distress to Troy.”

¶14 The district court then identified evidence that it felt did
support a permanent stalking injunction. It first pointed to
conversations that Doug had engaged in with his and Troy’s sister
(Sister). The court characterized those conversations as Doug
communicating, “I will ruin Troy. I will contact customers. I will
bring the company down. . . . [T]hey will lose the business. They’ll
lose everything.” The court said, “That’s personal, that’s harmful;
and that evinces an intent to . . . cause emotional distress to a
specific person, which is what’s required by the statute.” The
court then pointed to a text message Doug sent to a person
(Vendor) who works for another company owned by Troy and is
frequently on site for TKS. After Vendor had a conversation with
a TKS employee while at the TKS plant, Doug texted Vendor
asking what the pair had been talking about. The court observed,
“[Doug] create[d] the impression that he’s all-knowing, that . . . he
sees. He create[d] a sense of unease and discomfort. And that is
fearful, and that is emotionally frightening. And that can upset
the workings of a company and . . . create a cloud of suspicion and
distrust for the company.” Finally, the court pointed to a
conversation between Doug and Vendor during which Doug
“suggested that he was going to go to . . . [a] customer [of TKS]
and tell them how their . . . product [was] being handled,” which
the court said “undermine[d] the wellbeing of the company.” The
court concluded by saying that these incidents showed that
“Doug engaged in this conduct in order to bring . . . [Troy] down”
and “in order to cause distress and ruin the company.” Based on
these incidents, the court said, “[I’m] satisfied to a preponderance
that there is a course of action, that it was directed in such a way
that although it was aimed at the company, [it] was aimed at the
company in a particularly harmful way and that it satisfies the
requirements of the stalking [statute].”

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¶15 The district court further explained that because it did not
consider the suicide-related incident to be part of the “course of
conduct” required by the stalking statute, see generally Utah Code
§ 76-5-106.5(2)(a), 4 it was denying the TKS parties’ request that the
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injunction include “the firearms prescription.” The court also
denied the TKS parties’ request that Doug be restricted from the
building housing TKS and Landlord’s offices. Instead, it clarified
that the permanent stalking injunction would restrict Doug from
being involved in any direct interactions between Landlord and
TKS, from entering TKS’s premises within the building, and from
acting inappropriately on the surrounding premises, such as
repeatedly driving around in circles, hovering, or acting with the
intent to intimidate.

¶16 The district court thereafter issued the Stalking Injunction,
which did not detail the facts giving rise to its issuance but stated,
“For the reasons stated on the record, the Court finds that there is
reason to believe that Doug Wilson has stalked Troy Wilson.” The
Stalking Injunction contained both a “Personal Conduct Order”
and a “No Contact Order.” The Personal Conduct Order read:

Doug is not to stalk Troy. This means that Doug
must not do things such as follow, threaten, annoy,
or harass Troy in a way that could cause a
reasonable person to suffer emotional distress or to
be afraid for the person’s safety or the safety of
another person. For a legal definition of stalking, see
Utah Code Ann. § 76-5-106.5.

The No Contact Order read:

4. The stalking statute was amended after the events relevant to
this appeal. Compare Utah Code § 76-5-106.5 (2020), with id. (2024).
Because the changes to the relevant text are mostly minor and do
not affect our analysis, we cite the current version of the statute
except where the text has materially changed. See infra note 9.

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Doug must not contact, phone, text, mail, email, or
communicate with, either directly or indirectly in
any way with Troy and any other person listed
below.

The Stalking Injunction was issued in favor of Troy (not TKS) and
listed as additional protected persons Troy’s spouse and children,
Vendor, three named TKS employees, “[a]ny customer of TKS,”
and “[a]ny employee of TKS.”

Motion for Contempt Sanctions

¶17 In March 2021, the TKS parties filed a motion to hold Doug
in contempt for violating the Stalking Injunction. The judge who
received and adjudicated the contempt motion was not the one
who had presided over the proceedings related to the issuance of
the temporary stalking injunction and the Stalking Injunction. In
their contempt motion, the TKS parties alleged that Doug had
violated the Stalking Injunction by making a Facebook post along
with subsequent comments related to the post and by
communicating with Prior Customer.

¶18 As to the Facebook post, the TKS parties identified a post
by “John Dough” that read verbatim:

I have kept my mouth shut for far to long. I have
listened to some of my family member bear false
witness against me all in a attempt to cover up
wrong doing. Had family members try to hurt me to
the point to drive me to take my life. They hoped for
it. Being sued because I stood up and talked out. For
the first time I am appalled to be part of this family.
To have family members turn their backs on me. So
Christ like to take one side of a story and make it
true. All that evil needs to prevale in this world is
that good people do nothing. I am so glad you act
like Christians.

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In response to comments on this post, “John Dough” also posted
two comments:

There was a law suite filed against me. I have the
document. The stalking injunction was filed against
me as well in court. [Sister] mislead and lied in court
about what was going on and about what was said.
This is why I sent out the post in the first place. You
have only one side of a truth which is based in lies.

and

I am just so glad my family has both sides of the
story. Oh wait they don’t. Thanks for getting my
side of the story so you you have all the information.

Doug admitted that he “uses the name John Dough on Facebook.”

¶19 As to Doug’s communication with Prior Customer, the
TKS parties alleged that Doug had informed Prior Customer,
“[B]ecause you are a customer of Troy, I am not allowed to talk to
you.” The motion ended with the TKS parties’ request that the
court “impose a fine and/or incarceration.”

Dismissal of the TKS Parties’ Tort Claims

¶20 By June 2021 and before a hearing on the contempt motion,
the parties had engaged in little to no discovery on the TKS
parties’ tort claims, and the TKS parties moved to voluntarily
dismiss those claims, stating, “Having prevailed on their 8th
Cause of Action (Civil Stalking), and having been granted [the]
Stalking Injunction against Doug . . . , the TKS [p]arties have
obtained the primary relief sought and needed to protect Troy, his
family and TKS’[s] employees and customers from Doug.”

¶21 Doug opposed granting a dismissal of the TKS parties’ tort
claims without prejudice, and he moved for dismissal of the

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claims with prejudice. He contended that the TKS parties never
“offered any initial disclosures or proof of the . . . devastating
smears on Doug’s moral character,” that they did not participate
in discovery though the fact discovery period would end in “less
than twenty days,” and that they “should not be allowed to raise
these serious allegations, idle away their time before the court,
and then withdraw their claims with the intent of bringing them
again some other time.”

¶22 The court held a hearing on this matter in July 2021. At the
conclusion of the hearing, the court stated,

I would have found excusable delay on such a short
time frame. I find that the [TKS parties] were
involved with other stuff in the case even if they
weren’t doing that disclosure. Had they sought
additional time from me, I would have granted it. I
am loath to dismiss cases. I routinely grant more
time . . . for the public policy reasons [the TKS
parties’ counsel] outlined about cases being
resolved on the merits. So if Doug intends to re-
pursue his claims, then I think that it is going to
open up the necessity to hear a lot of the evidence
that Troy alleges in his claims.

On September 14, 2021, the court issued a written “Order
Granting Petitioners’ Motion to Dismiss and Denying
Respondent’s Motion to Dismiss,” in which it dismissed the TKS
parties’ tort claims without prejudice.

Hearing and Decision on the Motion for Contempt Sanctions

¶23 The following week, the court held a hearing on the
contempt matter, with the judge who had not conducted the
original stalking injunction proceedings presiding. The court
informed the parties that “any of the facts that gave rise to” the
Stalking Injunction were “beyond the scope” of the contempt

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proceeding. Thus, the court limited the witnesses to giving
“testimony in regards to the allegations in the contempt
proceeding.” The TKS parties contended that “the question of . . .
whether [Troy] suffered emotional distress [from the alleged
violations of the Stalking Injunction] is context specific” and that
evidence of events that occurred before the contempt action was
necessary to establish “what a reasonable person in Troy’s shoes
looks like.” The court indicated that it would “take judicial notice
of the fact that there were prior proceedings” and “of the order
that was issued by [the previous judge] and the findings that [the
previous judge] made in relation to” the initial proceedings. The
TKS parties noted their concern that “there was testimony
underlying those orders” and “some of the facts that . . . came out
[were not] necessarily memorialized in [the Stalking Injunction]
itself, or in [the prior] ruling.” Doug also stated his contrary
concern that Troy not be allowed to testify about matters the
previous judge “found irrelevant or unpersuasive for purposes of
[the Stalking Injunction].” The court then reiterated its view that
“the scope of [the contempt] proceeding” was the “limited
allegations of the order [to show cause].”

¶24 During the hearing, Doug did not dispute that he authored
the Facebook post and related comments that the TKS parties
contended violated the Stalking Injunction, nor did he dispute
their contents. Also during the hearing, the court received
evidence of an email Doug sent to Prior Customer in March 2021
asking Prior Customer to tell him the last date he did any business
with TKS. Prior Customer responded by saying he was not a
current TKS customer but that he had purchased some products
from TKS a few months earlier. Prior Customer also testified that
when he had initiated contact with Doug in the past, Doug had
said, “[I]f you’re a TKS customer, I can’t talk to you . . . .”

¶25 The court issued an order on the contempt motion on
October 13, 2021. Therein the court first explained that it was
applying the standard for criminal contempt:

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Because Doug Wilson has substantially complied
with the [Stalking Injunction], were the court to
sanction Doug Wilson, the [principal] reason would
be to vindicate the court’s authority, rather than to
compel future compliance. Because the court’s
primary purpose would be punitive in nature, the
criminal standard of proof beyond a reason[able]
doubt applies to the proceeding.

¶26 The court then addressed Doug’s Facebook post and
comments by turning to the language of the Stalking Injunction’s
Personal Conduct Order and noting that it “contain[ed] a citation”
to Utah Code section 76-5-106.5 “for the legal definition of
stalking” and that “the statute contains a provision precluding
an enjoined party from communicating ‘about’ the protected
party.” But the court also noted that the Stalking Injunction did
“not contain that language, and no evidence exist[ed] in the
record that Doug Wilson ever consulted the statute.” The court
then determined that “because no evidence exist[ed] [that]
Doug knew speaking indirectly about Troy would violate the
order, a reasonable doubt exist[ed] as to whether Doug
intended the message to violate[] the order.” The court
highlighted that “[n]either Troy Wilson nor any other protected
party were friends on the Facebook platform with Doug Wilson
at the time of his . . . posting, and Doug deleted the post and his
account shortly thereafter.” “Moreover,” the court continued,
“the post does not reference Troy Wilson by name, such that
acquaintances unfamiliar with the details of the lawsuit would
not associate Troy with the content of the post.” And the court
observed that “[i]n the subsequent comments to the original post,
Doug Wilson asserted that his reference to ‘my family member’
who bore ‘false witness against me’ related to [Sister]” and Sister
was not “among the protected parties” of the Stalking Injunction.
The court concluded that “because Troy was not a Facebook
friend of Doug and because the message [did] not reference Troy
by name, a reasonable doubt exist[ed] as to whether Doug

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intended the message to reach Troy and cause Troy emotional
distress.”

¶27 The court also considered “the circumstances surrounding
the case at bar,” which involved “great turmoil in the extended
Wilson family” as “Doug and Troy are the youngest of 11 siblings,
and the controversy was causing division and divided loyalties in
the family.” Given this, the court concluded that “a reasonable
doubt exist[ed] as to whether the [Facebook] post was designed to
harass or annoy Troy, rather than Doug’s stated intention of
determining who in the family supported him.” Also of note, the
court found “that all of the witnesses from [the] Wilson family
possess[ed] such significant biases that the court [could not] credit
any of their testimony beyond a reasonable doubt.”

¶28 The court further determined that “a reasonable doubt
exist[ed] as to whether a reasonable person in Troy Wilson’s
position, rather than any inordinately sensitive person, would
suffer emotional distress because of that singular Facebook post,
even if the post would cause some lesser degree of annoyance.”
On this front, the court stated that “[t]he only persons who
commented on Doug’s Facebook post were immediate Wilson
family members, and the only persons who spoke to Troy about
the post were family members and a small number of employees
and old family friends.” The court indicated that the evidence
suggested that “all of the family members and acquaintances who
viewed or learned about the post [held] Troy in high esteem and
the post did not influence their perception of him.”

¶29 As to Doug’s communication with Prior Customer, the
court stated that “the content” of Doug’s messages to Prior
Customer raised “a reasonable doubt as to whether Doug
intentionally violated the order by sending those messages or
whether he merely attempted to comply with the order, by
obtaining written confirmation that [Prior Customer] was not a
current customer, after [Prior Customer] initiated contact with
Doug.”

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¶30 Ultimately, as to both the Facebook post and Doug’s
communication with Prior Customer, the court ruled that the TKS
parties “failed to meet the heavy burden of establishing the
alleged violations beyond a reasonable doubt” and thus denied
the motion to find Doug in contempt.

The Appeals

¶31 In November 2021, the TKS parties appealed the district
court’s decision declining to hold Doug in contempt. Later that
same month, Doug appealed the Stalking Injunction and the
district court’s decision to dismiss the TKS parties’ other claims
without prejudice.

ISSUES AND STANDARDS OF REVIEW

Doug’s Appeal

¶32 As an initial matter, the TKS parties assert that this court
lacks jurisdiction over Doug’s appeal. “Whether this court has
jurisdiction over [an] appeal is a question of law that we review
for correctness.” Ashton v. Learnframe, Inc., 2008 UT App 172, ¶ 7,
185 P.3d 1135, cert. denied, 199 P.3d 970 (Utah 2008).

¶33 Besides jurisdiction, Doug’s appeal raises three issues.
First, Doug asserts that the district court erred by employing a
legally incorrect interpretation and application of the stalking
statute when it ruled that Doug’s actions “aimed at [TKS]” could
form the basis of the Stalking Injunction in favor of Troy. “The
proper interpretation and application of a statute is a question of
law which we review for correctness . . . .” Baird v. Baird, 2014 UT
08, ¶ 16, 322 P.3d 728 (cleaned up); see also Ragsdale v. Fishler, 2021
UT 29, ¶¶ 15, 20, 491 P.3d 835 (reviewing “for correctness” the
district court’s determination of whether particular actions by the
respondent legally qualified as a course of conduct “directed at”
the petitioner (cleaned up)).

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¶34 Second, Doug challenges the district court’s finding that he
knew or should have known that his actions constituting a
“course of conduct” under the stalking statute would cause a
reasonable person in Troy’s position to experience emotional
distress. “On review of both criminal and civil proceedings, we
accept the trial court’s findings of fact unless they are clearly
erroneous.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988)
(cleaned up), superseded on other grounds as recognized in State v.
Hurst, 821 P.2d 467 (Utah Ct. App. 1991); see also Baird, 2014 UT
08, ¶ 16 (“When reviewing factual determinations, [appellate]
court[s] will only rule as a matter of law if the evidence is so clear
and persuasive that all reasonable minds would find one way.”
(cleaned up)).

¶35 Finally, Doug argues that the district court erred by
dismissing the TKS parties’ tort claims without prejudice. “A trial
court has discretion to determine whether to grant a motion for
voluntary dismissal,” and it is “entitle[d] . . . to grant or dismiss
the motion upon such terms and conditions as the court deems
proper.” H&H Network Services, Inc. v. Unicity Int’l, Inc., 2014 UT
App 73, ¶ 4, 323 P.3d 1025 (cleaned up). Accordingly, “we review
a trial court’s decision” as to granting a voluntary dismissal with
or without prejudice “for an abuse of discretion.” Id. (cleaned up).

The TKS Parties’ Appeal

¶36 In their appeal, the TKS parties assert that the district court
erred when it applied “the criminal standard” for contempt. They
further contest the court’s determination not to hold Doug in
contempt. When, as here, the alleged “contempt is not committed
in the immediate view and presence of the court or judge, we
review a district court’s findings of fact for clear error and apply
a correction of error standard to our review of the district court’s
legal determinations.” Valerios Corp. v. Macias, 2015 UT App 4,
¶ 10, 342 P.3d 1127 (cleaned up). Once a court finds the existence
of facts necessary to support a contempt sanction, “the decision to
hold a party in contempt of court rests within the sound discretion

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of the trial court and will not be disturbed on appeal unless the
trial court’s action is so unreasonable as to be classified as
capricious and arbitrary, or a clear abuse of discretion.” Anderson
v. Thompson, 2008 UT App 3, ¶ 11, 176 P.3d 464 (cleaned up). “That
discretion includes not just the power to decide whether a party
should be held in contempt, but the power to determine whether
the purpose of a particular contempt order is civil or criminal.”
Dickman Family Props., Inc. v. White, 2013 UT App 116, ¶ 3, 302 P.3d
833 (cleaned up), cert. denied, 312 P.3d 619 (Utah 2013).

¶37 The TKS parties also challenge the district court’s decision
to exclude from the contempt proceedings evidence of the full
circumstances surrounding the incidents that gave rise to the
Stalking Injunction. We review the district court’s
“determinations regarding the admissibility of evidence under an
abuse of discretion standard.” Anderson, 2008 UT App 3, ¶ 25.

ANALYSIS

I. Doug’s Appeal

¶38 We first address Doug’s appeal. Doug challenges the
district court’s decision to issue the Stalking Injunction in the first
instance. He also challenges the district court’s decision to dismiss
the TKS parties’ tort claims without prejudice. For their part, the
TKS parties contend that “this court lacks jurisdiction to consider
[Doug’s] appeal because it was not made timely.” We begin by
addressing the threshold issue of jurisdiction. We then address, in
turn, Doug’s challenges to the district court’s orders.

A. Whether This Court Has Jurisdiction

¶39 The TKS parties contend that Doug did not file a timely
notice of appeal and, therefore, that this court lacks jurisdiction
over his appeal. According to the TKS parties, the court’s order
dismissing the TKS parties’ claims without prejudice on

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September 14, 2021, was a final judgment that triggered the thirty-
day deadline for Doug to file a notice of appeal. Thus, the TKS
parties assert, “Doug’s appeal of the principal action was due
October 14, 2021—more than a month before Doug filed a notice
of appeal.” We hold that the September 14 order was not a final
judgment and, therefore, that it did not trigger the thirty-day
deadline for Doug to file a notice of appeal. Instead, the thirty-day
deadline for Doug to file a notice of appeal was triggered 150 days
after the court entered the September 14 order. 5 4F

5. We are not unaware of rule 4(d) of the Utah Rules of Appellate
Procedure, which states that “[i]f a timely notice of appeal is filed
by a party, any other party may file a notice of appeal within 14
days after the date on which the first notice of appeal was filed.”
If rule 4(d) applied here, Doug would have had fourteen days
from the date the TKS parties filed their notice of appeal to file his
notice of appeal, and Doug in fact did file his notice of appeal
within fourteen days of when the TKS parties filed theirs. But rule
4(d) does not apply here. This matter involves both the TKS
parties’ original lawsuit and a subsequent criminal contempt
proceeding, see infra ¶¶ 69‒73 (concluding that the district court
did not abuse its discretion in classifying the contempt proceeding
as criminal), and a criminal contempt proceeding is an action
“separate and apart from the [principal] action,” Robinson v. City
Court, 185 P.2d 256, 258 (Utah 1947). Because the original lawsuit
and the contempt proceeding are separate actions, the appeal
deadlines for those separate actions operate independently. See
Burgers v. Maiben, 652 P.2d 1320, 1322 (Utah 1982) (per curiam)
(holding that a notice of appeal that was untimely to perfect an
appeal from the original action was timely and conferred
appellate jurisdiction to review a related criminal contempt
proceeding). Thus, notwithstanding that they have been
designated cross-appeals for ease of reference and share a
common appellate case number, the two appeals in this matter are
(continued…)

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¶40 Rule 4 of the Utah Rules of Appellate Procedure provides
that, with a few exceptions not applicable here, “in a case in which
an appeal is permitted as a matter of right from the trial court to
the appellate court, the notice of appeal . . . must be filed with the
clerk of the trial court within 30 days after the date of entry of the
judgment or order appealed from.” Utah R. App. P. 4(a). Rule 58A
of the Utah Rules of Civil Procedure requires that, again with
some exceptions that are not applicable here, “[e]very judgment
and amended judgment must be set out in a separate document
ordinarily titled ‘Judgment’—or, as appropriate, ‘Decree.’” Utah
R. Civ. P. 58A(a)—(b). Rule 58A also provides that when “a
separate document is required, a judgment is complete and is
entered at the earlier of” (A) when “the judgment is set out in a
separate document signed by the judge and recorded in the
docket” or (B) when “150 days have run from the clerk recording
the decision, however designated, that provides the basis for the
entry of judgment.” Id. R. 58A(e)(2).

¶41 In Griffin v. Snow Christensen & Martineau, 2020 UT 33, 467
P.3d 833, our supreme court analyzed an “Order of Dismissal with
Prejudice” entered by the trial court in that case to determine
whether it met the requirements of rule 58A(a) and was thus a
“judgment” under that rule. Id. ¶¶ 23–28. The order had been
prepared in response to a directive from the trial court to the
defendant’s counsel to “draft[] a proposed order confirming the
court’s oral ruling” on the defendant’s motion to dismiss. Id. ¶ 23.
The supreme court held that the order did not qualify as a
“judgment” under rule 58A(a). Id. ¶ 28.

¶42 The supreme court first explained that “the goal of Utah
rule 58A(a) is to impose a clear line of demarcation between a
judgment and an opinion or memorandum” and that “to
distinguish a judgment from an order or ruling, it should be

separate, and the deadline for Doug to perfect his appeal from the
TKS parties’ original lawsuit was thirty days after entry of the
final judgment in that lawsuit, see Utah R. App. P. 4(a).

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identified accordingly.” Id. ¶ 22 (cleaned up). The court then
observed that the order at issue “was not titled ‘Judgment,’ but
was instead named ‘Order of Dismissal with Prejudice’” and that
this was “not a mere technical deviation” from the rule. Id. ¶ 23.
Rather, the title “accurately described” the document’s purpose,
which was to confirm the trial court’s oral ruling, not to be “a
separate judgment documenting the resolution of all claims in the
district court.” Id.

¶43 The supreme court next emphasized the rule’s requirement
that a “judgment be set out in a ‘separate document.’” Id. ¶ 24
(cleaned up). It noted that “separate means individual; distinct;
particular; disconnected” and declared that “a separate judgment,
by definition, must be self-contained and independent from any
other document in the case, including the decision that gave rise
to it.” Id. (cleaned up). Even if a particular decision “disposes of
all claims in the action” and the trial court “directs a party to
prepare an order confirming [that] decision,” the court explained,
“a separate judgment is required” in order to comply with rule
58A(a). Id. ¶ 26 (cleaned up). Although the order at issue in Griffin
was “separate from the [trial] court’s oral ruling and
accompanying minute entry, that [was] beside the point.” Id. To
be a “judgment,” it needed to be wholly separate from the
decision giving rise to the judgment. See id.

¶44 Finally, and “[m]ost importantly,” the Griffin court
observed that the order in that case “serve[d] a different function
than a 58A(a) judgment.” Id. ¶ 27. The purpose of “a separate
58A(a) judgment” is not to “operate at the decision level” but,
rather, to “operate[] at the case level to signal that all claims
involving all parties have been resolved.” Id. The fact that the
order at issue in Griffin “contain[ed] procedural history, legal
reasoning, and factual content” indicated that it operated at the
decision level, not the case level. Id. ¶ 28.

¶45 In sum, because the document in Griffin was not “clearly
identified as a judgment,” was not “separate from the court’s

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decision on the relevant motion,” and was not “limited to only
that information relevant to a judgment,” it was “not a separate
58A(a) judgment.” Id.

¶46 The reasoning of Griffin applies here, compelling the
conclusion that the September 14 order is not a separate rule
58A(a) judgment either. Like the order in Griffin, the September
14 order is not titled “Judgment” but, instead, is titled “Order
Granting Petitioners’ Motion to Dismiss and Denying
Respondent’s Motion to Dismiss.” Also like the order in Griffin,
the September 14 order does not amount to a self-contained
judgment that is independent from the decision that gave rise to
it. Finally, the September 14 order operates primarily at the
decision level, not at the case level. It states, in full:

This case came on for hearing on July 13, 2021[,] on:
(1) the Motion to Dismiss filed by [the TKS parties],
which sought voluntary dismissal of Causes of
Action 1–7 contained in the Verified Complaint
& Petition for Civil Stalking Injunction (“the
Complaint”), without prejudice; and (2) [Doug’s]
Motion to Dismiss, which sought dismissal of the
same claims with prejudice. . . . The [c]ourt, having
considered the motions and corresponding
memoranda, and the oral argument of counsel, for
the reasons stated on the record, HEREBY ORDERS
THAT:

1. [The TKS parties’] Motion to Dismiss is
GRANTED;

2. [Doug’s] Motion to Dismiss is DENIED;

3. Claims 1–7 in the Complaint are dismissed
without prejudice; [and]

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4. With Claim 8 having resulted in the
issuance of a civil stalking injunction, and
[Doug] having previously dismissed his
counterclaim, all claims in this case have now
been resolved.

While the order does not wax long on “procedural history, legal
reasoning, and factual content,” id., it does address the procedural
posture of the motions, recount details of the hearing, and
incorporate the reasoning the court stated at the hearing—all
decision-level information. Admittedly, the last sentence of the
order says that “all claims in this case have now been resolved,”
which is a case-level statement. But because the order
predominantly operates at the decision level, it does not qualify
as a judgment under rule 58A(a). Cf. In re Cendant Corp., 454 F.3d
235, 241 (3d Cir. 2006) (explaining that to qualify as a judgment
under federal rule 58(a), an order “must omit (or at least
substantially omit) the [d]istrict [c]ourt’s reasons for disposing of
the parties’ claims”). 6
5F

¶47 The TKS parties ask us to conclude that the September 14
order qualifies as a judgment because “the parties exchanged
emails about and edited the document to clarify that the case was
over with nothing left to be litigated.” After the TKS parties’
counsel emailed the proposed order to Doug’s counsel for
approval, Doug’s counsel responded with an email saying, “What
is your position as to [cause of action] #8 (injunction)[?] We
probably need to make it clear as to whether the case is over or
not through this. It seems that this ends the case, but I am not sure
if you are of the same opinion.” Counsel for the TKS parties wrote
back, “We are of that opinion. Each of the claims in the Verified

6. Our supreme court has said that In re Cendant Corp., 454 F.3d
235 (3d Cir. 2006), “provides a helpful description of what a
proper separate judgment should look like.” Griffin v. Snow
Christensen & Martineau, 2020 UT 33, ¶ 21, 467 P.3d 833.

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Complaint has been resolved, and with this dismissal and Doug’s
earlier dismissal of his counterclaim, there is nothing left to be
litigated in this case. For clarity, I’ve added a sentence in the
attached.” From this exchange, it does appear that the parties
intended for the September 14 order to serve as a judgment under
rule 58A(a). But because this court’s jurisdiction is tied to a timing
determination that depends on when a final judgment is entered,
the question of whether a document complies with rule 58A(a)
cannot turn on the parties’ subjective intent. Cf. Duke Cap. LLC v.
Proctor, 2023 UT App 59, ¶ 25, 531 P.3d 745 (recognizing that
“parties cannot create, by contract, jurisdiction that would not
otherwise exist” (cleaned up)). Instead, rule 58A(a) compliance is
determined by whether the document at issue objectively satisfies
the requirements of the rule.

¶48 The September 14 order objectively does not satisfy the
requirements of rule 58A(a), and it therefore did not trigger a
thirty-day deadline to appeal. Instead, that deadline was
triggered 150 days after the clerk recorded the September 14
order. See Utah R. Civ. P. 58A(e)(2)(B). Thus, Doug’s appeal,
which was filed before those 150 days had run, was timely. See
Utah R. App. P. 4(c) (“A notice of appeal filed after the
announcement of a decision, judgment, or order but before entry
of the judgment or order will be treated as filed after such entry
and on the day thereof.”). We therefore have jurisdiction to
consider it.

B. Whether the Stalking Injunction Was Proper

¶49 Having determined that we have jurisdiction to consider
Doug’s appeal, we now address his first contention, which is that
the district court should not have granted the Stalking Injunction
in the first instance. “Under Utah’s civil stalking [injunction]
statute, a person who believes that he or she is the victim of
stalking may obtain an injunction against an alleged stalker” by
“prov[ing] by a preponderance of the evidence that an offense of
stalking has occurred.” Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491

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P.3d 835 (cleaned up); see also Utah Code § 78B-7-701. At the time
of Doug’s alleged stalking, to prove that an offense of stalking had
occurred, a person was required to show that (1) the alleged
stalker “intentionally or knowingly engage[d] in a course of
conduct directed at [the] person” and (2) the alleged stalker knew
or should have known “that the course of conduct would cause a
reasonable person to fear for the person’s own safety or suffer
other emotional distress.” Ragsdale, 2021 UT 29, ¶ 25 (cleaned up);
see also Utah Code § 76-5-106.5(2) (2020). Doug asserts that (1) the
district court committed legal error when it ruled that Doug had
engaged in a course of conduct and (2) even if Doug had engaged
in a course of conduct, the evidence does not support a finding
that Doug knew or should have known that the course of conduct
would cause a reasonable person to suffer emotional distress. We
disagree with each of Doug’s assertions.

1. Course of Conduct

¶50 Doug asserts that the court committed legal error when it
ruled that he had engaged in a course of conduct. The stalking
statute’s definition of a “[c]ourse of conduct” is broad. See Utah
Code § 76-5-106.5(1)(a)(i). It defines a course of conduct as “two
or more acts directed at or toward a specific individual,” id., and
it says that those acts may include “acts in which the actor . . .
communicates to or about an individual, or interferes with an
individual’s property . . . directly, indirectly, or through any third
party,” id. § 76-5-106.5(1)(a)(i)(A). It also says that the acts may
include instances when the actor “appears at the individual’s
workplace or contacts the individual’s . . . coworker”; “enters
property owned, leased, or occupied by an individual”; or “sends
material . . . for the purpose of . . . disseminating information
about . . . the individual to a . . . coworker, friend, or associate of
the individual.” Id. § 76-5-106.5(1)(a)(i)(B)(II)–(IV). Any of the
foregoing types of conduct qualifies to be part of a course of
conduct even if the actor “uses a computer, the Internet, text
messaging, or any other electronic means to commit [the] act.” Id.
§ 76-5-106.5(1)(a)(i)(B)(VI).

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¶51 In this case, Doug agrees that the district court identified
three instances of stalking behavior that the court said amounted
to a course of conduct. First, the court identified the conversations
during which Doug essentially told Sister, “I will ruin Troy. I will
contact customers. I will bring the company down. . . . [T]hey will
lose the business. They’ll lose everything.” Second, the court
identified the text message Doug sent to Vendor asking what he
had been talking about with a TKS employee, even though Doug
had not been visibly present during the conversation and the
participants would not, therefore, have had reason to know that
Doug was aware the conversation had occurred. Third, the court
identified a conversation between Doug and Vendor wherein
Doug “suggested that he was going to go to . . . [a] customer [of
TKS] and tell them how their . . . product [was] being handled.”

¶52 After identifying these instances of stalking behavior, the
district court said, “[I’m] satisfied to a preponderance that there is
a course of action, that it was directed in such a way that although
it was aimed at the company, [it] was aimed at the company in a
particularly harmful way and that it satisfies the requirements of
the stalking [statute].” Based on this statement, Doug contends
that the court’s finding of a course of conduct was “mistaken as a
matter of law” because “[n]owhere in the stalking statute does it
suggest that a harm can be directed at a company” and qualify as
part of a course of conduct but, rather, “harms to companies, as
opposed to specific individuals, are simply not contemplated by
the statute.” Restated, we understand Doug’s argument to be that
conduct that the court acknowledges was “aimed at [TKS]”
cannot at the same time legally qualify as conduct “directed at”
Troy for purposes of finding a course of conduct under the
stalking statute. 7
6F

7. We understand this to be Doug’s argument because the Stalking
Injunction was entered in favor of Troy and not in favor of TKS.
Because the Stalking Injunction was not entered in favor of TKS,
(continued…)

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¶53 Our supreme court considered a related question in
Ragsdale v. Fishler, 2021 UT 29, 491 P.3d 835. There, the director of
“an inpatient treatment facility for young women recovering from
severe depression and anxiety” sought a civil stalking injunction
protecting her from a neighbor living on the same street as the
facility. Id. ¶¶ 1, 6–7. The neighbor “feared [the facility] would
increase noise and traffic in the neighborhood,” and he “began
protesting the facility directly” by placing “signs in his yard” that
disparaged the facility. Id. ¶¶ 6–7. “He also began flipping off and
swearing at employees, clients, and anyone else involved with
[the facility].” Id. ¶ 7. Eventually, after the neighbor routinely
flipped off the director and began “coming out of his garage to
say things” to her directly, the director sought a stalking
injunction against the neighbor. Id. ¶¶ 7–9. The district court
issued an ex parte temporary injunction, but following an
evidentiary hearing, it declined to issue a permanent stalking
injunction, reasoning that the neighbor had “not direct[ed] his
conduct at [the director] but toward [the facility] as a business.”
Id. ¶¶ 9, 12.

¶54 On appeal, the supreme court ruled that the district court
had “erred in concluding that because [the neighbor] claimed to
subjectively target only [the facility], he did not direct his conduct
at [the director].” Id. ¶ 24. The supreme court observed that
“nothing in the statute defines the term ‘directed at’” or
“expressly indicate[s] that [a stalking] petitioner must be the

this case cannot implicate or resolve the issue of whether a
stalking injunction may be issued in favor of a company. With our
supreme court, “we note that at least one court has found its
state’s civil stalking statute to ‘protect[] institutions as well as
people.’” Ragsdale v. Fishler, 2021 UT 29, ¶ 39 n.29, 491 P.3d 835
(quoting Board of Regents-UW System v. Decker, 2014 WI 68, ¶ 26,
850 N.W.2d 112 (alteration in original)). But again, this case does
not raise that issue, and we, like the supreme court before us, do
not address it. See id.

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‘ultimate target’ of a respondent’s course of conduct.” Id. ¶ 31.
Instead, the court explained, “regardless of whether a petitioner
is a respondent’s ultimate target, the fact that the respondent
engaged in any act proscribed by the statute two or more times
makes his or her conduct ‘directed at’ the petitioner.” Id. ¶ 32.
Thus, the Ragsdale court concluded, “the person toward whom a
respondent’s behavior is ‘directed at’ . . . is determined by an
objective assessment of whether the respondent engaged in
conduct prohibited by the stalking statute.” Id. ¶ 37. “And this is
true even where a respondent directs his or her conduct at a
petitioner indirectly or through a third party.” Id. (cleaned up).
Accordingly, “[t]he fact that [the facility] was allegedly [the
neighbor’s] ultimate target [did] not shield him” from a finding
that his actions constituted a course of conduct toward the
director. Id. ¶¶ 39, 42. “It simply mean[t] [that the facility] could
potentially obtain an injunction against [the neighbor] as well.” Id.
¶ 39; see also supra note 7. Based on this holding, the supreme court
remanded the Ragsdale case to the district court for a course-of-
conduct determination under a proper understanding of the
statute. 2021 UT 29, ¶ 43.

¶55 Another case merits mention in this context as well. In
Carson v. Barnes, 2016 UT App 214, 385 P.3d 744, a petitioner
sought a stalking injunction based on an alleged course of
conduct that included an incident where the respondent
had taken “a handgun from his vehicle and confronted”
two business associates of the petitioner when the petitioner
was not present. Id. ¶¶ 3, 9, 16. The respondent contended that
reliance on this incident was “problematic because [the petitioner]
was not present, and therefore [the respondent’s] actions on
that day were not ‘directed at’ [the petitioner] as the statute
requires.” Id. ¶ 16. We disagreed and held that “the statute does
not require the victim to be physically present for an act to be
considered in the course of conduct” because “the plain language
of the statute . . . includes situations in which the actor comes to
the person’s workplace or contacts the person’s . . . coworkers,

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without requiring the presence of the victim.” Id. ¶¶ 16–17
(cleaned up).

¶56 The Ragsdale and Carson holdings apply to this case.
Specifically, under the Ragsdale holding, the district court’s
acknowledgment that Doug’s conduct “was aimed at [TKS]” is
not legally at odds with a determination that Doug had engaged
in a course of action directed at Troy. That is because an objective
assessment reveals that each of the three instances of stalking
behavior the court identified qualify as conduct prohibited by the
statute. Doug’s conversations with Sister wherein he said, among
other things, that he would ruin Troy amounted to acts in which
Doug “communicate[d] . . . about [Troy] . . . directly, indirectly, or
through any third party.” Utah Code § 76-5-106.5(1)(a)(i)(A)(I).
And Doug’s text message to Vendor about a conversation Doug
had not been visibly present for as well as Doug’s conversation
with Vendor wherein he suggested that he was going to tell a TKS
customer how their product was being handled each amounted to
Doug “contact[ing] [Troy’s] . . . coworker,” id. § 76-5-
106.5(1)(a)(i)(B)(II), and perhaps also to Doug “send[ing] material
. . . to a . . . coworker” of Troy “for the purpose of . . .
communicating with [Troy],” id. § 76-5-106.5(1)(a)(i)(B)(IV).
Additionally, under the Carson holding, none of these actions by
Doug are disqualified from contributing to a course of conduct
directed at Troy by virtue of the fact that Troy was not present for
or the direct recipient of the conduct. Because an objective
assessment reveals that each of the three instances of stalking
behavior the court identified qualify as conduct prohibited by the
stalking statute as against Troy, the court committed no legal error
by ruling that these three instances constituted a course of
conduct directed at Troy, even if the same instances might also
have been aimed at TKS.

2. Emotional Distress

¶57 Doug also asserts that, even if he engaged in a course of
conduct directed at Troy, the evidence does not support the

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district court’s implicit finding that Doug knew or should have
known that the course of conduct would cause a reasonable
person to suffer emotional distress. 8 At the time of Doug’s alleged
7F

conduct, a determination that stalking had occurred required a
finding that the actor “[knew] or should [have known] that the
course of conduct would cause a reasonable person . . . to fear for
the person’s own safety or the safety of a third person” or “to
suffer other emotional distress.” Utah Code § 76-5-106.5(2)
(2020). 9 The statute defines “[e]motional distress” to mean
8F

“significant mental or psychological suffering.” Id. § 76-5-
106.5(1)(a)(ii)(A) (2024). And it defines “[r]easonable person” to
mean “a reasonable person in the victim’s circumstances.” Id. §
76-5-106.5(1)(a)(v). “By including ‘in the victim’s circumstances’
as part of the reasonable person definition, the statute provides
for an individualized objective standard, meaning that a court

8. We see in the record no explicit finding that Doug knew or
should have known that his course of conduct would cause a
reasonable person to suffer emotional distress. Generally,
however, “unstated findings can be implied if it is reasonable to
assume that the trial court actually considered the controverted
evidence and necessarily made a finding to resolve the
controversy, but simply failed to record the factual determination
it made.” Uhrhahn Constr. & Design, Inc. v. Hopkins, 2008 UT App
41, ¶ 23, 179 P.3d 808 (cleaned up). And here, the necessary
finding regarding emotional distress is implicit in the court’s
statement that “although [the course of conduct] was aimed at the
company, [it] was aimed at the company in a particularly harmful
way and . . . satisfies the requirements of the stalking [statute].”
At a minimum, Doug makes no argument to the contrary.
9. In contrast, the current version of the code requires a finding
that the actor “[knew] or [was] reckless as to whether the course of
conduct would cause a reasonable person . . . to fear for the
individual’s own safety or the safety of a third individual” or “to
suffer other emotional distress.” Utah Code § 76-5-106.5(2)(a)
(emphasis added).

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must consider the entire context surrounding the defendant’s
conduct.” Richins v. Weldon, 2023 UT App 147, ¶ 67, 541 P.3d 274
(cleaned up). “Courts applying this individualized objective
standard have considered such factors as the victim’s
background, the victim’s knowledge of and relationship with the
defendant, any history of abuse between the parties, the location
of the alleged stalking, and the cumulative effect of the
defendant’s repetitive conduct.” Id. (cleaned up). “Another
consideration could be whether the behavior might cause damage
to one’s reputation, relationships, or livelihood.” Id. (cleaned up).

¶58 With regard to the consideration of whether a course of
conduct might cause damage to one’s reputation, relationship, or
livelihood, the stalking case of Richins v. Weldon, 2023 UT App 147,
541 P.3d 274, is instructive. There, this court emphasized that the
respondent “was saying very negative things” about the
petitioner, a vice president of a company, to the petitioner’s
“fellow employees and boss, including telling [the boss] that he
should fire” the petitioner. Id. ¶¶ 2, 69. Because the respondent’s
“behavior could have damaged [the petitioner’s] work
relationships and reputation as well as his livelihood,” we
determined that “ample evidence existed for the district court to
conclude that a reasonable person in [the petitioner’s]
circumstances would feel emotional distress.” Id. ¶ 69.

¶59 Here, Doug was a former production manager of TKS who
was familiar with TKS’s operations and employees. After leaving
TKS, he was employed by Landlord and continued to work in the
same building that housed TKS. Thus, Doug was well positioned
to harm Troy by harming TKS. And that’s exactly what he told
Sister he intended to do. Doug asserts that “[e]xpressing an intent
to sue is not emotionally distressing” and that “[w]anting to ‘ruin’
someone is more so an expression of frustration or anger rather
than a phrase intended to cause significant stress or suffering.”
We agree that a threat of civil litigation by itself would not satisfy
the emotional distress component of stalking. But Doug did not
simply threaten to file a lawsuit, and we do not agree that, under

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the circumstances, the court was required to interpret Doug’s
express desire to “ruin” Troy and cause both TKS and Troy to
“lose everything” to be a mere expression of frustration. Actions
undermining TKS could certainly undermine Troy’s livelihood
where Troy held a 50% interest in TKS. And if TKS employees felt
targeted by Doug in his effort to get at Troy, that could certainly
interfere with Troy’s work relationships. Indeed, the district court
specifically found that the sum of Doug’s communications to
Sister “evince[d] an intent to . . . cause emotional distress to a
specific person,” namely Troy; that the text from Doug to Vendor
“create[d] the impression” that Doug was “all-knowing” and
“create[d] a sense of unease and discomfort” that could “upset the
workings of a company and . . . create a cloud of suspicion and
distrust for the company”; and that the conversation wherein
Doug “suggested that he was going to go to . . . [a] customer and
tell them how their . . . product [was] being handled”
“undermine[d] the wellbeing of the company.” All of these
findings were reasonable under the circumstances, and they
amply support the overarching finding that Doug knew or should
have known that his course of conduct would cause emotional
distress to a reasonable person in Troy’s position.

¶60 Accordingly, Doug has failed to demonstrate that the
district court erred in issuing the Stalking Injunction. 10
9F

C. Whether the TKS Parties’ Tort Claims Were Properly
Dismissed Without Prejudice

¶61 Apart from challenging the Stalking Injunction, Doug also
argues that the district court abused its discretion when it
dismissed the TKS parties’ tort claims without prejudice, as

10. While we have concluded that the district court correctly
interpreted the stalking statute and that its findings here are
supported by the evidence, courts should remain cautious about
allowing civil stalking injunctions to be used as tools in
commercial litigation.

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opposed to with prejudice. Rule 41 of the Utah Rules of Civil
Procedure indicates that “[u]nless the order states otherwise, a
[voluntary] dismissal [by court order] is without prejudice.” Utah
R. Civ. P. 41(a)(2). This provision confirms that the default for
voluntary dismissals is dismissal without prejudice. The rule also
directs a court to grant a motion for voluntary dismissal “only on
terms the court considers proper.” Id. In Rohan v. Boseman, 2002
UT App 109, 46 P.3d 753, cert. denied, 59 P.3d 603 (Utah 2002), we
adopted the Tenth Circuit’s analysis in Ohlander v. Larson, 114 F.3d
1531, 1537 (10th Cir. 1997), which includes a list of “relevant
factors the trial court should consider” when determining
“proper” terms of dismissal under rule 41(a)(2). Rohan, 2002 UT
App 109, ¶¶ 20–22 (cleaned up). The Ohlander factors include “the
opposing party’s effort and expense in preparing for trial;
excessive delay and lack of diligence on the part of the movant;
insufficient explanation of the need for a dismissal; and the
present stage of the litigation.” Id. ¶ 21 (cleaned up). These factors
have since been employed in analyzing a district court’s
decision to grant or deny a motion for voluntary dismissal, see,
e.g., Keystone Ins. Agency v. Inside Ins., 2019 UT 20, ¶¶ 25‒26, 445
P.3d 434, and in analyzing a district court’s decision to grant a
motion for voluntary dismissal with or without prejudice, see
H&H Network Services, Inc. v. Unicity Int’l, Inc., 2014 UT App 73,
¶ 5, 323 P.3d 1025. These factors “are by no means exclusive[,] and
any other relevant factors should also be considered.” Id. (cleaned
up).

¶62 Doug frames his argument in terms of the factors set forth
in Westinghouse Electric Supply Co. v. Paul W. Larsen Contractor, Inc.,
544 P.2d 876 (Utah 1975), which are used when determining
whether a dismissal with prejudice for failure to prosecute should
be granted: “the length of time since the suit was filed,” “the
conduct of both parties,” “the opportunity [the parties have] had
to move the case forward and what they have done about it,”
“what difficulty or prejudice may have been caused to the other
side,” and “whether injustice may result from the dismissal.” Id.

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at 879. These factors are similar to the Ohlander factors, and we
agree that some of them are also relevant here.

¶63 Under the Ohlander and Westinghouse factors that we deem
to be relevant here, we conclude that the district court did not
abuse its discretion in dismissing the TKS parties’ tort claims
without prejudice. First, as to whether injustice resulted from a
dismissal without prejudice, we note that Doug’s claims—which
he raised as counterclaims to the TKS parties’ complaint—were
also voluntarily dismissed without prejudice, leaving Doug able
to bring his claims again in the future if he so desires. On this
score, the court’s dismissal of the TKS parties’ claims without
prejudice preserved parity between the parties regarding possible
future litigation, an outcome that appears just on its face. Cf. Clear
Creek Dev., LLC v. Peterson Pipeline Ass’n, 2024 UT App 22, ¶ 24,
545 P.3d 306 (stating, in the context of determining when a
counterclaim is compulsory under rule 13(a) of the Utah Rules of
Civil Procedure, that an outcome “allowing both parties the option
to bring their claims anew in a subsequent action . . . is certainly
the more just outcome”).

¶64 Doug argues that the district court abused its discretion by
dismissing the TKS parties’ claims without (as opposed to with)
prejudice because “[t]he case had been on the court’s docket for
almost eight months,” “fact discovery was set to end [in] less than
three weeks,” and “the TKS parties had done nothing to litigate
any of their [tort] claims.” These facts implicate the Ohlander factor
regarding excessive delay and lack of diligence on the part of the
movant. But we believe that these factors ultimately weigh
neutrally or in the TKS parties’ favor here. During the eight
months that their tort claims were pending, the TKS parties did
not exhibit a lack of diligence generally; they were actively
litigating their request for a stalking injunction as well as their
motion for contempt sanctions. Additionally, we credit the district
court’s indication that, in its view, the eight-month delay in
discovery was a relatively “short time frame” under the
circumstances and that an allowance of “additional time” for

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discovery would have been merited if the TKS parties had sought
it.

¶65 As to the factor regarding the opposing party’s expense in
preparing for trial, we do not have reason to doubt Doug’s claim
that his litigation expenses “amounted to over a third of his yearly
salary.” Yet those expenses were nevertheless limited by the TKS
parties’ decision not to initiate depositions and other costly
discovery related to their tort claims while they litigated the
Stalking Injunction. Thus, we believe that this factor weighs out
neutrally when it comes to evaluating the propriety of dismissing
the TKS parties’ claims without prejudice.

¶66 Finally, Doug argues that dismissal with prejudice was
required because the TKS parties’ “unsubstantiated claims have
cost [him] his personal relationships and led him to try and
commit suicide.” While we are not unsympathetic to the
emotional and relationship costs that are often incurred through
litigation, Doug provides no support for the proposition that this
type of prejudice is properly within the scope of our inquiry.
Without such authority, we are unconvinced that emotional and
relationship costs constitute the type of “legal prejudice” that the
Ohlander factors are designed to prevent. See 114 F.3d at 1537
(explaining that “[t]he parameters of what constitutes ‘legal
prejudice’ are not entirely clear” but providing factors to guide
this inquiry, which speak in terms of “effort,” “delay,” “expense,”
and “diligence”). Indeed, although to this point the TKS parties’
tort claims have not been substantiated, there has been no
contention that they are frivolous, and our system does not
condition the ability to maintain potentially meritorious litigation
on a showing that the process will not cause stress to the opposing
party.

¶67 In sum, in light of the factors that are relevant here, we
determine that the district court did not abuse its discretion by
dismissing the TKS parties’ tort claims without prejudice.

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II. The TKS Parties’ Appeal

¶68 We now turn to the TKS parties’ appeal. The TKS parties
first challenge the district court’s decision to treat their motion for
contempt sanctions as a motion to hold Doug in criminal contempt
rather than civil contempt. The TKS parties also challenge, for
several reasons, the court’s decision not to hold Doug in criminal
contempt. We address the TKS parties’ various arguments in turn.

A. Whether the District Court Applied the Correct Standard
for Contempt

¶69 The TKS parties assert that the district court erred by
“applying the criminal standard” for contempt. We disagree.

¶70 Whether a contemplated contempt order is civil or criminal
determines the standard of proof a court must apply to find that
the elements of contempt have been met: for civil contempt, the
standard is clear and convincing evidence; for criminal contempt,
it is proof beyond a reasonable doubt. Koehler v. Allen, 2020 UT
App 73, ¶ 14 & n.3, 466 P.3d 738. “The primary determinant of
whether a particular contempt order is to be labeled civil or
criminal is the trial court’s purpose in entering the order.” Von
Hake v. Thomas, 759 P.2d 1162, 1168 (Utah 1988), superseded on other
grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App.
1991). “A criminal contempt order is punitive in nature, whereas
a civil contempt order has a remedial purpose.” Koehler, 2020 UT
App 73, ¶ 14 n.3. “A remedial purpose is indicated when the
contemner is allowed to purge him- or herself of the contempt by
complying with the court’s orders.” Von Hake, 759 P.2d at 1168.
Accordingly, “a contempt order is criminal if the fine or sentence
imposed is fixed and unconditional, but [it] is civil if the fine or
imprisonment is conditional such that the contemner can obtain
relief from the contempt order merely by doing some act as
ordered by the court.” Id. at 1168 n.5. For example, in the stalking
injunction context, this court has found a contempt order civil
when its sanctions included “a jail term of 10 days and a fine of

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$300” because “these sanctions were stayed to allow [the
contemner] an opportunity to purge his contempt . . . by having
no further contact . . . with [the protected party] for a period of
two years.” Koehler, 2020 UT App 73, ¶ 14 n.3 (cleaned up).

¶71 The district court determined that the contemplated
contempt order in this case was criminal, explaining:

Because Doug Wilson has substantially complied
with the [Stalking Injunction], were the court to
sanction Doug Wilson, the [principal] reason would
be to vindicate the court’s authority, rather than to
compel future compliance. Because the court’s
primary purpose would be punitive in nature, the
criminal standard of proof beyond a reason[able]
doubt applies to the proceeding.

This determination was not an abuse of discretion.

¶72 First, the TKS parties did not indicate in their motion for
contempt that they were seeking a civil contempt adjudication.
Their motion asked the court to “impose a fine and/or
incarceration,” without any mention of giving Doug an
opportunity to purge his contempt. That the relief the TKS parties
requested was not conditional suggests that the contempt they
sought was not civil. See id. (“Because this order was conditional
such that [the contemner] could obtain relief by staying away
from [the protected party], the contempt order is not criminal but
civil.”).

¶73 Moreover, regardless of what the TKS parties requested,
the court gave sound reasons for its application of the criminal
standard. Its finding that Doug had “substantially complied” with
the terms of the Stalking Injunction—a finding that the TKS
parties do not challenge on appeal—supports the court’s
determination that the chief reason for it to hold Doug in
contempt “would be to vindicate the court’s authority, rather than

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to compel future compliance.” This finding supports the court’s
determination that a contempt sanction in this case would be
“punitive in nature.” The court employed the correct standard in
approaching this issue, and it provided sound reasoning for its
determination that the proceeding was criminal in nature. Thus,
the court did not abuse its discretion related to this issue.

B. Whether the District Court Erred in Not Holding Doug in
Contempt

¶74 The TKS parties next challenge the district court’s decision,
even under the criminal standard, not to hold Doug in contempt.
Relatedly, the TKS parties also assert that the court abused its
discretion by excluding certain evidence during the contempt
hearing. The TKS parties’ motion for contempt sanctions was
based on two sets of alleged violations of the Stalking Injunction:
Doug’s communications with Prior Customer and Doug’s
Facebook post and related comments. We first review the court’s
determination that Doug’s communications with Prior Customer
did not satisfy the elements of contempt. We then review the
court’s determination that Doug’s Facebook post did not satisfy
the elements of contempt. We address the evidentiary issue as
part of our review of the court’s determination that Doug’s
Facebook post did not satisfy the elements of contempt.

1. Doug’s Communications with Prior Customer

¶75 The TKS parties identified Doug’s communications with
Prior Customer as violative of the Stalking Injunction’s No
Contact Order. “As a general rule, in order to prove contempt for
failure to comply with a court order it must be shown that the
person cited for contempt knew what was required, had the
ability to comply, and intentionally failed or refused to do so.”
Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on
other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct.
App. 1991). The district court found that the TKS parties failed to
prove beyond a reasonable doubt that by communicating with

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Prior Customer Doug intentionally failed to comply with the
Stalking Injunction. The TKS parties challenge that finding. We
determine that this finding is not clearly erroneous and, therefore,
that Doug’s communications with Prior Customer cannot be a
basis for holding Doug in contempt.

¶76 The Stalking Injunction’s No Contact Order stated that
“Doug must not contact, phone, text, mail, email, or communicate
. . . either directly or indirectly in any way with . . . [a]ny customer
of TKS.” While there was evidence that Doug spoke with and
emailed Prior Customer, who had at some point been a customer
of TKS, the district court was also presented with evidence that
Prior Customer had been the one to initiate contact with Doug and
that when he had initiated contact, Doug told him, “[I]f you’re a
TKS customer, I can’t talk to you . . . .” The court also received
evidence that Doug subsequently sent Prior Customer an email
asking for the last date on which he had done business with TKS.
Prior Customer responded by saying he was not a current TKS
customer but that he had purchased some products from TKS a
few months earlier. The court found that “the content” of Doug’s
communications with Prior Customer raised “a reasonable doubt
as to whether Doug intentionally violated the order by sending
those messages or whether he merely attempted to comply with
the order, by obtaining written confirmation that [Prior
Customer] was not a current customer, after [Prior Customer]
initiated contact with Doug.”

¶77 The TKS parties acknowledge that if Prior Customer was
the one who initiated contact with Doug, “it is unclear how Doug
could have handled [the situation] differently” and that when
Doug subsequently emailed Prior Customer, Doug “was
apparently trying to determine whether [he] was a ‘current’
customer or a prospective customer.” Yet the TKS parties appear
to argue that because Doug’s email asking Prior Customer “how
long he had been working with TKS” was sent three days after
Doug was served with the motion for contempt sanctions, the
email must have amounted to an intentional failure by Doug to

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comply with the Stalking Injunction. Specifically, they apparently
contend that because “Doug knew Troy considered his
communications with [Prior Customer] to be a violation of the
Stalking Injunction” yet “reached out to him anyway,” it was clear
error for the court not to find that Doug intentionally violated the
No Contact Order when he emailed Prior Customer. We are not
convinced.

¶78 Nothing in the record suggests that Doug trusted Troy or
the assertions of Troy’s counsel. Accordingly, the fact that Doug
learned that Troy and Troy’s counsel considered communications
with Prior Customer to be a violation of the Stalking Injunction
does not definitively establish that Doug intentionally violated
the Stalking Injunction by inquiring of Prior Customer himself
whether he was a current customer of TKS, especially where he
told Doug that he was not a current customer. Given the evidence
that Doug repeatedly told Prior Customer that Doug could not
speak with him if he was a TKS customer and the evidence that
Doug’s email to Prior Customer was merely to confirm whether
he was a current customer, we see no clear error in the district
court’s finding that the TKS parties failed to prove beyond a
reasonable doubt that by communicating with Prior Customer
Doug intentionally violated the Stalking Injunction. That alleged
violation of the Stalking Injunction cannot serve as a basis for
holding Doug in contempt.

2. Doug’s Facebook Post and Related Comments

¶79 We now consider the TKS parties’ challenge to the court’s
determination that Doug’s Facebook post and related comments
did not satisfy the elements of contempt. While the Stalking
Injunction was in place, Doug made a series of communications
on Facebook. The full text of those communications is quoted
above. See infra ¶ 18. We address, in turn, the district court’s
determination that these communications did not violate the No
Contact Order and its determination that they did not violate the
Personal Conduct Order.

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a. Whether Doug’s Facebook Post and Comments Violated
the No Contact Order

¶80 The Stalking Injunction’s No Contact Order forbade Doug
from communicating with Troy, even indirectly. For the district
court to impose contempt sanctions based on the allegation that
the Facebook communications violated the No Contact Order, the
TKS parties had to prove beyond a reasonable doubt that, among
other things, Doug intended the Facebook post and comments to
be a direct or indirect communication with Troy or that he knew
they were a direct or indirect communication with Troy. See Von
Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other
grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App.
1991). The district court determined that it could not find beyond
a reasonable doubt that the Facebook post was an intentional or
knowing violation of the No Contact Order, and we see no clear
error in that finding.

¶81 On this point, the court reasoned that “because Troy was
not a Facebook friend of Doug and because the message [did] not
reference Troy by name, a reasonable doubt exists as to whether
Doug intended the message to reach Troy.” Indeed, there was
evidence that Troy was not a Facebook friend with Doug, which
does support a finding that the post was not a knowing or
intentional attempt by Doug to communicate with Troy directly.
And there is no evidence that any of Doug’s Facebook friends
routinely shared Doug’s posts with Troy, which supports a
finding that the post and related comments did not amount to a
knowing or intentional attempt to communicate with Troy
indirectly.

¶82 Admittedly, we have held in the context of a no-contact
order that “a factfinder could readily infer that calls [an ex-
husband] placed to [his ex-wife’s new husband] . . . would
routinely and predictably be conveyed to [the ex-wife]” and,
therefore, that by making those calls, the ex-husband
“intentionally or knowingly” contacted his ex-wife at least

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indirectly. State v. Fowers, 2023 UT App 128, ¶ 13, 538 P.3d 1274
(cleaned up). Similarly, we have held that a factfinder could infer
that an estranged husband intended to communicate with or
contact his wife, who had obtained a protective order against him,
by sending letters with language directed to his wife to the
address of the wife’s “sister who lived next door.” State v. Fouse,
2014 UT App 29, ¶¶ 3, 41, 43, 319 P.3d 778, cert. denied, 329 P.3d 36
(Utah 2014). But in neither of those cases did we say that the
evidence required a finding that the defendant knowingly or
intentionally communicated indirectly with the protected person.
See Fowers, 2023 UT App 128, ¶ 13; Fouse, 2014 UT App 29, ¶ 43.
And we are unwilling here to hold that a person who is subject to
an order not to contact his or her sibling indirectly necessarily
violates that order any time he or she communicates about the
sibling with any other family member or friend of the sibling.

¶83 In short, we affirm the district court’s determination that
Doug’s Facebook post and related comments did not violate the
No Contact Order.

b. Whether Doug’s Facebook Post and Comments Violated
the Personal Conduct Order

¶84 The TKS parties allege that Doug’s Facebook
communications violated the Stalking Injunction’s Personal
Conduct Order because he was thereby communicating “about”
Troy. On this issue, Judge Harris’s opinion, joined in by Judge
Orme, is the majority opinion; my views in this Part II.B.2.b
constitute a dissenting opinion on this issue.

¶85 As to the allegation that Doug’s Facebook post and
comments violated the Stalking Injunction’s Personal Conduct
Order, I address each of the elements of contempt in turn. Again,
those elements include that Doug “knew what was required [of
him by the Personal Conduct Order], had the ability to comply,
and intentionally failed or refused to do so.” Von Hake v. Thomas,

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759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as
recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991).

(i) Whether Doug Knew What Was Required

¶86 The Personal Conduct Order said:

Doug is not to stalk Troy. This means that Doug
must not do things such as follow, threaten, annoy,
or harass Troy in a way that could cause a
reasonable person to suffer emotional distress or to
be afraid for the person’s safety or the safety of
another person. For a legal definition of stalking, see
Utah Code Ann. § 76-5-106.5.

The district court found that “no evidence exists [that] Doug knew
speaking indirectly about Troy would violate the order.” In
making this finding, the court reasoned that while the Personal
Conduct Order “contains a citation” to Utah Code section 76-5-
106.5 “for the legal definition of stalking” and while “the statute
contains a provision precluding an enjoined party from
communicating ‘about’ the protected party,” the Stalking
Injunction “does not contain that language, and no evidence exists
in the record that Doug Wilson ever consulted the statute.” I
believe this approach was erroneous.

¶87 The Personal Conduct Order prohibited Doug from
stalking Troy. The supplied list of actions that constitute stalking
was not exhaustive, as evidenced by the order’s use of “such as.”
See State v. Green, 2023 UT 10, ¶ 70, 532 P.3d 930 (explaining that
a rule’s “use of ‘such as’ indicates that the list” following that
phrase is “illustrative and not exclusive” (cleaned up)); State v.
Verde, 2012 UT 60, ¶¶ 14–15, 296 P.3d 673 (discussing a list
following “such as” as “illustrative and not exclusive”), abrogated
on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016.
Thus, the fact that communicating about Troy was not among the
listed examples of stalking is not dispositive.

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¶88 Furthermore, the Personal Conduct Order unambiguously
stated that the legal definition of stalking could be found in Utah
Code section 76-5-106.5. I have some doubt as to whether Doug
could successfully claim ignorance on the meaning of stalking
even if the stalking statute had not been explicitly cited in the
Personal Conduct Order, because “citizens are generally
presumed to know what the law is.” Laker v. Caras, 2023 UT App
125, ¶ 21, 538 P.3d 926. At any rate, however, Doug’s argument
that he only knew of the listed examples of stalking and not the
full definition of stalking is unavailing given that he was plainly
forbidden from stalking and told where to find the definition of
that term. Cf. State v. Barlow, 153 P.2d 647, 653 (Utah 1944)
(“Ignorance of a fact may sometimes be taken as evidence of a
want of criminal intent, but not ignorance of the law.”). I reject the
district court’s position that a person subject to a court order not
to engage in certain conduct does not know what is required if the
person elects not to read a statute that defines the forbidden
conduct that is expressly identified in the order. Accordingly, I
would vacate the district court’s finding that “no evidence exists
[that] Doug knew speaking indirectly about Troy would violate
the [Personal Conduct Order],” remand the case, and instruct that
the court make a new finding on this issue.

(ii) Whether Doug Was Able to Comply

¶89 As the TKS parties point out, the district court did not make
a finding regarding Doug’s ability to comply with the Personal
Conduct Order’s restriction against communicating about Troy.
However, while it is true that a “district court must make explicit
findings, whether written or transcribed, on the three elements of
contempt,” Koehler v. Allen, 2020 UT App 73, ¶ 14, 466 P.3d 738
(cleaned up), I would find the lack of an explicit finding on this
element to be harmless, see generally Green, 2023 UT 10, ¶ 101
(“[W]hen an error is harmless, we do not disturb the district
court’s decision.”). Because there is simply no evidence to suggest
that Doug would have been unable to refrain from posting about

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Troy on Facebook, the only supportable finding on this point is
that Doug could have complied with the Personal Conduct Order.

(iii) Whether Doug Intended Noncompliance

¶90 On the element of whether Doug knowingly or
intentionally violated the Personal Conduct Order, the district
court found that “because no evidence exists [that] Doug knew
speaking indirectly about Troy would violate the order, a
reasonable doubt exists as to whether Doug intended the
[Facebook post and related comments] to violate[] the order.” I
have already expressed my view that the court’s finding of no
evidence that Doug knew communicating about Troy would
violate the Personal Conduct Order was the product of legal error.
See supra ¶¶ 86‒88. Because I would have thus vacated this basis
for the court’s finding that Doug did not knowingly or
intentionally violate the Personal Conduct Order through his
Facebook post and related comments, I would vacate the court’s
finding on this point as well.

¶91 Doug contends that there is evidence apart from his
professed ignorance of the restrictions imposed by the Personal
Conduct Order that supports a finding that he did not knowingly
or intentionally violate that order with his Facebook
communications. Specifically, he asserts that the post and
comments were not knowingly or intentionally “about” Troy but,
instead, “only about” Sister. I am skeptical on this point. While
the Facebook post and comments may have been, in part, about
Sister, that does not necessarily mean they were not also about
Troy. They refer to the lawsuit and the request for the Stalking
Injunction, neither of which was filed by Sister. Additionally, the
Facebook post declares, “I have . . . [h]ad family members try to
hurt me to the point to drive me to take my life.” And Doug’s
suicide note stated: “I feel like there is no other way out of where
Troy has put me. I do not have the will or strength to fight.” Doug
explicitly blamed Troy for his suicidal thoughts, so I am doubtful
that his Facebook reference to the “family members” who

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prompted such thoughts was not intended to be about Troy. For
these reasons, I do not believe that we can say that the evidence
supported only the district court’s finding that Doug did not
knowingly or intentionally violate the Personal Conduct Order
through his Facebook post and related comments. I would
instruct the court to make a new finding on this issue on remand
as well.

¶92 In the context of stalking, this third element of contempt—
that the stalker intentionally failed or refused to comply with the
court’s order, see Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah
1988), superseded on other grounds as recognized in State v. Hurst, 821
P.2d 467 (Utah Ct. App. 1991)—required the TKS parties to also
prove that, to the extent the Facebook post and comments were
about Troy, the communications would have caused “emotional
distress to a reasonable person in [Troy’s] circumstances,” 11 Baird
10F

v. Baird, 2014 UT 08, ¶ 25, 322 P.3d 728; see also Utah Code § 76-5-
106.5(2). The district court found that “a reasonable doubt exists
as to whether a reasonable person in Troy Wilson’s position,
rather than an inordinately sensitive person, would suffer
emotional distress because of that singular Facebook post.” I
would conclude that the court’s approach that led to this finding
suffered from a legal error and that the court exceeded its
discretion when it excluded certain evidence related to this
finding.

¶93 A determination of whether Doug’s Facebook post and
comments would have caused emotional distress involves an
“objective inquiry into whether [Doug’s] conduct would have
caused a reasonable person in [Troy’s] circumstances emotional
distress.” Baird, 2014 UT 08, ¶ 21. This objective inquiry is “an
individualized objective” inquiry, “meaning that a court must
consider the entire context surrounding the [alleged stalker’s]

11. The TKS parties do not argue that the Facebook post and
comments would have caused a reasonable person in Troy’s
position to fear for his or her safety or the safety of a third person.

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conduct,” Anderson v. Deem, 2023 UT App 48, ¶ 29, 530 P.3d 945
(cleaned up), including, as we have already noted, “such factors
as the victim’s background, the victim’s knowledge of and
relationship with the defendant, any history of abuse between the
parties, the location of the alleged stalking, . . . the cumulative
effect of the defendant’s repetitive conduct[, and] whether the
behavior might cause damage to one’s reputation, relationships,
or livelihood,” Richins v. Weldon, 2023 UT App 147, ¶ 67, 541 P.3d
274 (cleaned up); see also State v. Miller, 2023 UT 3, ¶¶ 84, 86, 527
P.3d 1087; Ragsdale v. Fishler, 2021 UT 29, ¶ 45, 491 P.3d 835; Baird,
2014 UT 08, ¶ 27. “In this context, acts that seem perfectly innocent
or even well intentioned may constitute stalking. For example,
conduct such as sending the victim a dozen roses may seem
benign and loving to the casual observer, but could mean a very
different thing when understood in the context of the victim’s
experience.” Ragsdale, 2021 UT 29, ¶ 45 (cleaned up). Moreover,
courts “must consider the conduct cumulatively.” Id. (cleaned
up).

¶94 At the outset of the contempt hearing, the district court
expressly stated its view that “the facts that gave rise to” the
Stalking Injunction were “beyond the scope” of the contempt
proceeding. As the majority opinion on this issue points out, the
court thereafter did say that it would “take judicial notice of the
[Stalking Injunction] and the findings that [the previous judge]
made in relation to . . . issuing” it, and the court admittedly had
before it evidence of many of the circumstances surrounding the
controversy in general. However, after the court expressed its
willingness to take judicial notice of the Stalking Injunction and
the findings that the previous judge had made in relation to it, the
court again affirmed its view that “the scope of [the contempt]
proceeding” allowed it to consider only the “limited allegations
of the order [to show cause],” not the circumstances surrounding
the issuance of the Stalking Injunction in the first place. If we take
the district court at its word—and I do—even if it took judicial
notice of the findings that the previous judge made in relation to

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the Stalking Injunction, it did not consider those facts when ruling
on the contempt motion.

¶95 A conclusion that the district court did not properly
consider the entire context surrounding Doug’s conduct is further
supported by an evidentiary ruling the court made at the
contempt hearing. Specifically, the court limited testimony at the
hearing to “testimony in regards to the allegations in the contempt
proceeding.” While a judge who presides over both a stalking
injunction hearing and a subsequent contempt hearing may not
need to rehear evidence of the events leading to the stalking
injunction to be able to fulfill its charge to consider the entire
context surrounding the stalker’s conduct when deciding the
contempt issue, in this case the same judge did not preside over
both hearings. And because the first judge’s findings fell far short
of telling the whole story of the parties’ history, the second judge’s
willingness to take judicial notice of those findings was
insufficient to demonstrate that it met its charge. For example, the
TKS parties alleged various misdeeds by Doug that the first judge
did not discuss when determining whether there was a course of
conduct justifying issuance of the Stalking Injunction. See supra
¶¶ 9, 13–16. Accordingly, I believe the court abused its discretion
by excluding from the contempt hearing evidence of the events
surrounding the issuance of the Stalking Injunction on the basis
that it was irrelevant to the contempt proceeding. And that abuse
of discretion further confirms that the district court did not
properly consider the entire context surrounding Doug’s conduct
when it ruled on the contempt issue.

¶96 The majority opinion on this issue begins by correctly
reciting “a few background concepts,” including the standard of
review related to a district court’s factual findings and the burden
of proof related to criminal contempt. Infra ¶¶ 103‒05. But as the
majority opinion on this issue recognizes, those concepts come
into play only if “a district court applies the correct legal
standard.” Infra ¶ 103. And the correct legal standard was
whether, considering the entire context, Doug’s Facebook post and

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comments would have caused a reasonable person in Troy’s
position emotional distress. And, as explained, it is the district
court’s repeatedly expressed intention not to consider the entire
context that undergirds my opinion on this issue.

¶97 The majority opinion on this issue also states, alternatively,
that, even assuming the district court did not consider the entire
context surrounding Doug’s Facebook post and comments, no
reasonable factfinder who had considered the entire factual
context could conclude beyond a reasonable doubt that Doug’s
Facebook post and comments were more than a “blip on the radar
screen” and were capable of causing a person in Troy’s position
emotional distress. Infra ¶¶ 107, 113. I disagree. As already noted,
even the “seem[ingly] . . . innocent” or “well intentioned”
“sending [of] . . . a dozen roses” might, in some circumstances,
constitute a violation of a stalking injunction “when understood
in the context of the victim’s experience.” Ragsdale, 2021 UT 29,
¶ 45 (cleaned up). In light of that, and given the established
context of “division,” “escalated” tensions, and “great turmoil”
into which the Facebook post and comments were placed, I am
not prepared to hold as a matter of law that no reasonable
factfinder considering the entire context could determine that the
post and comments would cause an ordinary person in Troy’s
position emotional distress.

¶98 For the foregoing reasons, I would vacate the court’s
finding as to whether Doug’s Facebook post and comments
would cause a reasonable person in Troy’s position emotional
distress and direct that the court make a new finding on this issue
as well. 12
11F

12. The TKS parties also contend that “[t]he district court erred in
categorically finding that ‘all of the witnesses from [the] Wilson
family possess such significant biases that the court cannot credit
any of their testimony beyond a reasonable doubt.’” However,
(continued…)

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CONCLUSION

¶99 We have jurisdiction over Doug’s appeal. As to his appeal,
the district court did not interpret or apply the stalking statute
erroneously when it found a course of conduct directed at Troy.
The court’s finding that Doug knew or should have known that
his course of conduct would cause a reasonable person in Troy’s
position emotional distress was not clearly erroneous. And the
court did not abuse its discretion by dismissing the TKS parties’
tort claims without prejudice.

¶100 As to the TKS parties’ appeal, we unanimously affirm the
district court’s determinations to apply the criminal standard in
the contempt proceedings and to not hold Doug in contempt for
communicating with Prior Customer. Additionally, based on
Judge Harris’s opinion, joined by Judge Orme, we also affirm the
district court’s determination to not hold Doug in contempt based
on the allegation that his Facebook post and comments violated
the No Contact Order.

HARRIS, Judge (concurring in part and authoring the Opinion of
the Court as to Part II.B.2.b, in which ORME, J., joined):

¶101 Judge Orme and I join the first 83 paragraphs of the lead
opinion without reservation. That is, we agree that this court has
jurisdiction over Doug’s appeal—as a direct appeal and not as a

“the factfinder serves as the exclusive judge of both the credibility
of witnesses and the weight to be given particular evidence.” State
v. Jok, 2021 UT 35, ¶ 28, 493 P.3d 665 (cleaned up). This includes
when the trial court is the factfinder. See In re J.R.H., 2020 UT App
155, ¶ 17, 478 P.3d 56 (“Trial courts . . . have wide latitude to make
credibility determinations, and we defer to such determinations
. . . .”). Hence, I believe the TKS parties have not demonstrated
error on this point.

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cross-appeal—and that, on the merits of that appeal, the district
court did not err in issuing the Stalking Injunction, nor did it
abuse its discretion in dismissing the TKS parties’ tort claims
without prejudice. We also agree that, with regard to the TKS
parties’ appeal, the district court correctly treated the motion for
contempt sanctions as a motion to hold Doug in criminal contempt
rather than civil contempt, and we further agree that the court did
not commit reversible error either (a) in finding that Doug’s
communication with Prior Customer was not contemptuous or (b)
in determining that Doug’s Facebook communications did not
violate the No Contact Order. To that extent, we concur fully in
the lead opinion. 13
12F

¶102 We disagree, however, with the lead opinion’s conclusion
that the district court committed reversible error in determining
that the TKS parties had not proved, beyond a reasonable doubt,
that Doug’s Facebook communications violated the Personal
Conduct Order. In particular, we take issue with the lead
opinion’s assessment regarding the emotional distress component
of the analysis. On that score, we agree wholeheartedly with the
district court’s determination that “reasonable doubt exists as to
whether a reasonable person in Troy Wilson’s position, rather
than any inordinately sensitive person, would suffer emotional
distress because of that singular Facebook post.” On that basis, we
affirm the judgments of the district court in their entirety, a result

13. Moreover, we take no issue with the lead opinion’s analysis in
paragraphs 86 through 88, in which the lead opinion expresses a
desire to “vacate the district court’s finding that ‘no evidence
exists [that] Doug knew speaking indirectly about Troy would
violate the [Personal Conduct Order].’” But our affirmance of the
court’s emotional distress determination is, by itself, sufficient to
conclude our analysis on the overarching question of whether
Doug’s Facebook communications violated the Personal Conduct
Order; thus, Judge Orme and I do not need to specifically assess
the other elements contained in Part II.B.2.b of the lead opinion.

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that will bring this case to a well-deserved conclusion and present
no need for further proceedings on remand.

¶103 Let us begin with a few background concepts, starting with
the applicable standard of review. Assuming that a district court
applies the correct legal standard—an “individualized objective
standard,” see Baird v. Baird, 2014 UT 08, ¶ 26, 322 P.3d 728—its
determination regarding whether a claimant suffered the sort of
emotional distress the stalking statute contemplates is a factual
finding that we review only for clear error. See Richins v. Weldon,
2023 UT App 147, ¶ 42, 541 P.3d 274 (reviewing an emotional
distress finding, in this context, “for clear error” (cleaned up)). In
this case, the district court applied the correct standard, expressly
asking whether “a reasonable person in Troy Wilson’s position,
rather than any inordinately sensitive person,” suffered
emotional distress. Accordingly, the court’s ultimate finding
regarding emotional distress is, in this case, a determination we
review only for clear error.

¶104 Moreover, the overarching standard of review generally
applicable in contempt cases is quite deferential. Indeed, the lead
opinion, supra ¶ 36, acknowledges that—regardless of whether
the case involves civil or criminal contempt—a district court’s
“decision to hold a party in contempt of court rests within the
sound discretion of the trial court and will not be disturbed on
appeal unless the trial court’s action is so unreasonable as to be
classified as capricious and arbitrary, or a clear abuse of
discretion.” Anderson v. Thompson, 2008 UT App 3, ¶ 11, 176 P.3d
464 (cleaned up).

¶105 We also note that the TKS parties were seeking criminal
contempt, not civil contempt, and therefore they were required to
prove Doug’s contempt beyond any reasonable doubt. See supra
¶¶ 69–73. This is the most stringent burden of proof found in the
law, and the district court recognized this concept in its ruling.

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¶106 Furthermore, the type of emotional distress at issue here is
something far greater than mere annoyance. Utah’s stalking
statute—incorporated into the Personal Conduct Order—defines
“[e]motional distress” to mean “significant mental or
psychological suffering.” Utah Code § 76-5-106.5(1)(a)(ii)(A)
(2021). This court has previously noted that this definition
requires claimants to demonstrate that they have suffered more
than just “some emotional distress.” See Noel v. James, 2022 UT
App 33, ¶ 20, 507 P.3d 832; see also Meyer v. Aposhian, 2016 UT App
47, ¶ 16, 369 P.3d 1284 (affirming a district court’s determination
that the incidents in question, while “upsetting, intimidating, and
annoying,” were not sufficient to cause the sort of emotional
distress contemplated by the stalking statute).

¶107 With these foundational principles in mind, we see no
error at all—let alone a clear one—in the district court’s
determination that “reasonable doubt exists as to whether a
reasonable person in Troy Wilson’s position, rather than any
inordinately sensitive person, would suffer emotional distress
because of that singular Facebook post.” In the grand scheme of
this family’s lengthy dispute, this Facebook post was merely a blip
on the radar screen, and the district court was well within its
contempt-case discretion to determine that the TKS parties hadn’t
proved, beyond a reasonable doubt, that—of all things in this
case’s history—it was these rather innocuous Facebook
communications that tipped Troy over the emotional edge into
“significant mental or psychological suffering.”

¶108 The lead opinion’s inclination to reverse and remand on
this point appears largely driven by the district court’s (perhaps
somewhat ill-considered) remarks that “any of the facts that gave
rise to” the Stalking Injunction were “beyond the scope” of the
contempt proceeding. In our view, one reasonable reading of the
court’s remarks is simply that it did not want to unduly elongate
the evidentiary hearing by having witnesses come in and rehash
the same testimony they’d given under oath some nine months
earlier. Indeed, at one point the court referred to its request—

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made previous to the contempt hearing—that “the parties . . .
provide declarations of any witnesses,” and it stated that it had
made that request in an attempt “to avoid going back to other
proceedings and trying to listen to the” audio recording of the
previous hearing. Nevertheless, the lead opinion has decided to
“take the district court at its word” and assume that, because of
these remarks, the court “did not properly consider the entire
context surrounding” Doug’s Facebook communications. See
supra ¶¶ 94–95.

¶109 Our reading of the record is different from the lead
opinion’s. As we see it, the district court actually did consider the
entire context of the case in making its contempt ruling, even if it
refused to allow additional testimony and evidence to be re-
presented at the hearing. At the contempt hearing, during the
debate over the scope of the witnesses’ testimony, the court noted
that “there is a record with regard to” what had happened at the
previous hearing that could be reviewed and consulted. The court
then expressly took “judicial notice of the fact that there were
prior proceedings” and “judicial notice of the [Stalking
Injunction] and the findings” the prior judge made in entering it.
Our reading of this exchange is that the court was not just taking
judicial notice of the Stalking Injunction and related findings
made by the previous judge, but of the “record with regard to”
the previous hearing. Indeed, in its contempt order, the district
court expressly stated that it had considered “the circumstances
surrounding the case at bar” that had “created great turmoil in the
extended Wilson family.”

¶110 Moreover, during that same debate, Troy’s counsel noted
that Troy had submitted a lengthy declaration in advance of the
contempt hearing, with the intent of informing the court about
“what [Troy] had experienced prior to” the entry of the Stalking
Injunction. That declaration was just one of many exhibits
submitted by the parties with their briefing in advance of the
contempt hearing; that briefing, including the exhibits, contained
a whole lot of context and descriptions of past underlying events.

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Unless this court is aware of some indication to the contrary, it
should presume that lower courts read the relevant briefing,
including the submitted exhibits, before rendering a decision. See,
e.g., Merrick Young Inc. v. Wal-Mart Real Estate Bus. Trust, 2011 UT
App 164, ¶ 29, 257 P.3d 1031 (noting the lower court’s statement
that it had “fully reviewed this matter” before making its ruling,
and “presum[ing]” therefrom that the court “closely examined all
of the documents filed in support of the parties’” positions). Here,
the district court stated, at the hearing, that it had “received and
reviewed all the declarations” submitted by the TKS parties, and
it indicated in its final written ruling that it “took evidence and
received briefing from the parties” and that it was “fully advised
in the premises” before making its ruling. We therefore presume
that the district court read all the material Troy submitted in
support of his motion.

¶111 In addition, at the contempt hearing, the court heard live
testimony not only from Troy but also from several other
witnesses, including at least four other members of the family.
Two of those witnesses—Troy and his sister—offered testimony
about Troy’s reaction to Doug’s Facebook communications.

¶112 In our view, it is nigh on impossible to read the file in this
case well enough to be able to rule on a contempt motion and not
be fully aware of the circumstances surrounding the controversy
in general and the Facebook communications in particular. Here,
the district court not only read the file but then presided over an
evidentiary hearing at which live testimony was presented and
these matters were further discussed. We therefore reach a
different conclusion than the lead opinion; as we see it, the district
court considered all the relevant contextual circumstances before
concluding that the TKS parties had not met their burden of
proving that Troy had suffered emotional distress.

¶113 But be all of that as it may, even if we were to assume for
purposes of the discussion that the district court truly did not
consider the entire context surrounding Doug’s Facebook

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communications, the parties have—in this appeal—provided this
court with all of that context, through briefing and citations to the
record, and we have certainly considered that contextual
evidence. After undertaking that consideration, we are of the view
that—to the extent the district court actually failed to consider the
underlying circumstances—any error on the part of the court here
was harmless. In our view, no reasonable factfinder, after
considering the contextual evidence to which the TKS parties now
point, could conclude beyond a reasonable doubt that Doug’s
“John Dough” Facebook posts caused a reasonable person in
Troy’s position to suffer the sort of significant emotional distress
contemplated by the stalking statute.

¶114 Accordingly, for all these reasons, we part ways with the
lead opinion’s analysis in paragraphs 90 through 98. On this
record, reasonable doubt exists as to whether a reasonable person
in Troy’s shoes would have sustained significant mental or
psychological suffering from Doug’s Facebook posts. The district
court’s contempt ruling was sound, and we therefore affirm it.
Because we agree with the lead opinion’s analysis affirming the
court in all other respects, the court’s rulings are affirmed across
the board.

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