Once Is Enough

The Utah Court of Appeals affirmed the dismissal of an action that the plaintiff had brought against his former attorney as well as vexatious litigator restrictions imposed on him

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

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

The district court granted the motion to dismiss. It also entered an order declaring Liender to be a vexatious litigant and requiring him to obtain counsel before filing any future claim for relief. The court identified fifteen separate cases filed by Liender in the past seven years, including several malpractice cases against other attorneys. The court found that seven of those cases had been resolved and none were resolved in Liender’s favor. The court also determined that Liender had twice tried to relitigate his dismissed claims against Harris—once by seeking to amend his complaint after dismissal and once by filing the complaint in the current case.

Conclusion

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

(Mike Frisch)