2014 UT App 234

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### T H E 

### U TA H 

### C O U RT O F 

### A P P E A L S

S TAT E OF U TAH

, I N TH E I NT E RE S T

OF C.M., A

P E RS ON

UND E R E I G HT E E N

YE ARSOF AG E

. C.M., Appellant,

v. S TAT E OF U TAH

, Appellee.

Memor andumDeci si on No. 20121023-CA Filed October 2, 2014

Fifth Di stric t Juveni le Court, Cedar City Depart ment The Honorable Thomas M. Hi gbee

No. 1014871
Thomas M. Burton, At tor ney for Appellant Sean D. Reyes, Andre w F. Peterson, and John J. Ni elsen, Atto rneys for Appellee

J U D G E J. F RE D E RI C V OR O S J R . authore d thi s Memorandum Deci si on, i n whi ch J UD G E G RE G OR Y K. O R M Eand S E N I OR J UD G E P AM E L A T. G RE E NWO ODconcu rr ed. 1

VOROS , Judge:
¶1 In thi s delinquency case, C.M., a minor at t he tim e of the delinquency, requests an or der of thi s court “striking o r vacating

1. The Honor able Pamela T. Greenwood, Se nio r Judge, sat by speci al assi gnment as autho rized by law. Se e g e n e rally Utah Code Jud. Adm i n. R. 11-201(6)

.In re C.M.

the April 14, 2009 convic tion.” C.M. contends that t he juve ni le 2 court proceeded to adjudi cate her wi thout fi rst obtaining personal jurisdi cti on ov er her and that her later sti pul a t io n t o the juve ni le court’s jurisdi cti on was unauthor i zed and thus fai led to confer jurisdi cti on on the cour t.

1
¶2 At the outset, the St ate asks us to ce ns ur e C.M.’s current
couns el on the g ro und that hi s appellate bri ef, “li ke hi s pleadin gs below, is li tte red wi th comments that di sparage the inte g r it y and motives of the juve ni le court, t he prosecutor , and pri or couns el.”
¶3 The St ate relies on Peters v. Pine Meado w Ranch Hom e Association, 2007 UT 2, 151 P.3d 962. There, the petiti oner’ s couns el fi led bri efs “replet e wi th attacks on the integr i ty of the co ur t of appeals panel that deci ded the cases belo w. Those attacks [were] unfoun ded, scan dalous, i rr elevant

. . . a nd di srespectful of the judi ci ary .” Id. ¶ 23. Those bri efs i dent ified clai med err or s in the court of appeals deci si on under rev i ew. Id. ¶ 1 0

. B ut t hey went further, allegin g that those err or s “were intentional and the result of i mproper motives.” Id. Y et in support of those accu sati ons, t he petiti oner’ s c oun s e l offe re d “nothin g beyond the fact that the err or s were made.” Id. ¶ 10.
¶4 The supreme court conclu ded t hat such accu sati ons “personally attack[ed] the integr i ty of the court of appe a l s panel, suggesti ng seri ous intentional mi sconduct.” Id. ¶ 15. It further d e t e r mined that they violated rule 8.2 of the Utah Rules of Professi onal C ond uct and St andards 1 and 3 of the Utah St andards 3

2. The April 14, 2009 or der of the j uv e nil e co urt was in fact not a “convic tion” but an adjudi cati on that C.M.’s acts had brought her wi thi n the jur i sdi cti on of the j uveni le court.

3. Rule 8.2(a) of the Utah Rules of Professi onal Conduct states, “A lawyer shall not make a publi c statement that the lawyer knows to (continued...)

20121023-CA 2 2014 UT App 234In re C.M.

of Professi onali sm and Ci vili ty. Id. ¶ 11. Accordi ngly, pursuant to 4 rule 24(k) of the Utah R ul es of Appellate Procedure, the court 5 struck the offending brie fs , asses sed atto rney fees again st the petiti oner’ s couns el, and declined to consi der the i ssu es on rev i ew. Id. ¶ 23.
¶5 Here, C.M.’s bri ef suffers fr o m simi lar flaws

. For example, i t refer s to a minute entry in the juve ni le court a s “ a complete fabri cati on.” It also repeat s on appeal t he charge that the St ate’s arg uments “rev ealed a collaboration between prosecuti on a nd defense couns el to establi sh personal jurisdi cti on ov er C.M. , ” an
accu sati on for which present couns el was admoni shed by the juve ni le court. That court foun d that couns el had “produced no evidenc e of any ‘collabor ation’ bec ause none exi sts.”
¶6 Based on the foreg oin g, the St ate asks thi s c ou rt to admoni sh

couns el and warn hi m again st employin g such tactic s in the future.

3. (...continued) be false or wi th reckless di sregar d as to i ts t ruth or falsi ty concerning the quali fi cati ons o r integr i ty of a judge, adjudi cator y offi cer or a candi date for electi on or appoi ntment to judi ci al offi ce.”

4. St andard 1 of the Utah St andards of Professi onali sm and Ci vili ty states i n par t t ha t “ lawyers shall tr eat all other couns el, parties, judges, wi tnesses, and other partici pants in all proceedings in a
cour teo us and di gni fi ed manner.” St andard 3 of the Utah St andards of Professi onali sm and Ci vili ty states in part, “Lawyers sh a ll not, wi thout an adequate factual basi s, attr ibute to ot he r
couns el or the courti mproper motives, purpose, or conduct.”

5. Rule 24(k) of the Utah Rules of Appellate Procedure states, “All bri efs under thi s rule mus t be conci se , p r e sent ed wi th accu racy, logical ly ar r a nged wi th proper headings and free from burdensome, i rr elevant, i mmaterial o r scan dalous matter s. Brief s whi ch are not i n compli ance may be di sregar ded or stric ken, on motion or sua sponte by the co ur t, and the court may asses s atto rney fees agains t the o ffending lawyer.”

20121023-CA 3 2014 UT App 234In re C.M.

Whi le noting that we recently struck a bri ef fi led by C.M.’s couns el i n an unrelated case fo r “i rr elevant and scan dalous” content, see State v. Wolf

, 2014 UT App 18, ¶ 12 n.4, 319 P.3d 757, the St ate does not ask that we str i ke C.M.’s bri ef her e. Cou ns e l fo r C.M. di d not fi le a reply br i ef.
¶7 We agr ee wi th the St ate that, li ke the petiti oner’ s bri efs in Peters , C.M’s bri ef here suggests that the lower co ur t ’ s alleged

err or s were i ntentional and the result of i mproper motives. Peters, 2007 UT 2 , ¶ 10. As in Peters , i t accu ses the lower court of fabr icat i ng a factual finding. Id. ¶ 12. And as in Peters , C.M.’s
couns el supp or ts these accu sati ons wi th “nothin g beyond the fact that t he err or s were made.” Id. ¶ 10.
¶8 Never theless, these offenses are nei ther as excessive nor as perv asi ve as the mi scondu ct sanc tioned in Peters

. F ur t hermor e,
couns el offered a partial apolog y in or al arg ument befo r e thi s court. Accordingly, we do not strike the bri ef, asses s atto rney fees again st couns el, or decline to enter tain the appea l

. Ho wever, we cauti on couns el again st employin g such language in the future. See Supe rior Recei vable Servs. v. Pett, 2008 UT App 225, ¶ 12, 191 P.3d 31. Assi gni ng Machi avellian motives t o err or s o f j udges and lawye r s i s i mproper and usu ally inaccurat e. And asi de from i mpli cati ng the R u l e s o f Pr o fe ss io na l C o nd u c t a n d t h e S t a n d a r d s o f Professi onali sm and Ci vili ty, inflam mator y language and personal

accu sati ons undermine the posi tion they o st ensi bly supp or t. Knowledgeable reader s understand that those wi th persuasi ve arg uments based on law and logic rar ely resor t to ad hominem attacks.

2
¶9 C.M.’s prin ci pal contention on appeal i s that the juve ni le court lacked personal and subject matter jurisdi cti on ov er her. The parties agr ee that the juve ni le court l a ck ed personal jurisdi cti on
ov er C.M. at the tim e i t or i gin ally a dj udic ated her in absenti a. However , defense couns el later fi led a sti pulated motion on her behalf seeking to reduce the levels of the offenses

. The juve ni le

20121023-CA 4 2014 UT App 234In re C.M.

court gr anted the motion and reduced the levels of the offenses for whi ch s he was adjudi cated.
¶10 Later , thro ugh present couns el, C.M. fi l e d a m oti on to vacate the amended adjudi cati on on the gr ound that the court at all tim es lacked personal and subject matter jurisdi cti on ov er C.M. The St ate responded that C.M. wai ved any defect in personal jurisdi cti on by appearin g and reneg otiati ng the adj udi cati on. At the motion he aring, C.M.’s current couns el sought leave to further bri ef t he i ssu e of wai ver

. The juve ni le court allowed further bri efing

. Two months later , the juve ni le court’s ruli ng conclu ded that i t had both subject matter and personal jurisdi cti on ov er C.M. It further noted t ha t whi le the St ate’s bri ef addressed wai ver , “couns el for [C. M

. ]
never addressed the i ssu e of wai v er.” The court ruled that C.M. had wai ved her clai m that the court lacked personal jurisdi cti on. In addi tion, the court responded to C.M.’s clai m that the a tt orn e y who negot i ated the reducti on in charges “ never repr esented her, but rat her repr esented her mother .” The co ur t found that “[t]he only evidenc e on that point”—speci fi call y , the mother ’s affi davit—“i s contrar y to thi s asserti on.” Thi s order was d ated August 24, 2012. C.M. did n ot appeal fro m i t.
¶11 But on Sept ember 25, 2012, again repr esented by present
couns el, C.M. fi led a second motion seeki ng to vacate the juve ni le court’s adjudi cati on on the g r o un d that the court lacked subject matter and personal jurisdi ct ion. No memorandum of law accompan i ed the motion. The motion was “based up o n the declaration of [C.M.] and upon the pleadings and evidenc e already bef o r e t he court.” The declaration of C.M. alleged that, although

aware that her mother was atte mpting to get her charges reduced, she had not ret ai ned couns el or authorized her mot he r to ret ain
couns el on her behalf. The declaration alleged no facts unknown to C.M. atthe time of the fi rst mot i on.
¶12 The St ate’s response noted that the j uv eni le court had “already rej ected” C.M.’s clai m that she knew nothin g about the atto rney wh o obtained reduced charges on her behalf and made other arg uments. The St ate also attache d a document apparently si gned by C.M. i n 2010 authoriz ing her mother to receive

20121023-CA 5 2014 UT App 234In re C.M.

i nformation reg ardin g her case. The juve ni le court deni ed the second motion wi thout comment on October 29, 2012. C.M. fi led a notic e of appeal on Nov ember 28, 2012.
¶13 The St ate contends that we lack jurisdi cti on ov er thi s appeal becau se C.M. di d not fi le a tim ely notic e of appeal. “An appeal may be take n from a di stric t or juve ni le court to the appellate court wi th jurisdi cti on ov er the appeal from all final o r d e r s a nd judgments

. . . .” Utah R. App. P. 3(a). An appeal of right from a juve ni le court
or der not relat ed to abus e, neglect, depende ncy, ter minati on, or adoptio n must be take n “wi thi n 30 days from the entry of the

or der, decree, or judgment appealed from.” Ut a h C ode Ann. § 78A6-1109(2) , (7) (Lexi sNexi s 2012). “Failu r e to fi le a tim ely notic e of appeal deprives thi s court of jurisdi cti on ov er the appeal.” Reisbeck v. HCA Health Servs. of Utah, Inc. , 2000 UT 48, ¶ 5, 2 P.3d 447.
¶14 The juve ni le court adjudi cated C.M. delinquent in absenti a
on April 14, 2009. C.M. under standably di d not appeal that judgment. When she later lear ned of i t, s he fi led, thro ugh present

couns el, a “Mot i on to St rike” t he a dj udi cati on. The St ate asserts, and we agr ee, that thi s motion was in sub sta nc e a r ule 60(b) (4) motion for relief from a vo i d judgment. See Utah R. Ci v. P. 60(b) (4);
see also Utah R. Juv. P. 48(a) (prov i ding that rule 60 appli es to postjudgment motions i n juve ni le court). The juve ni le court deni ed thi s motion on Au gust 24, 2012. “[A]n or der denying reli ef under rule 60(b) i s a final appealable or der.” Amica Mut. In s
. Co. v. Schettler, 768 P.2d 950, 970 (Utah Ct. App. 1989) (ci tin g Mascaro v. Davis , 741 P.2d 938, 946 (Utah 1987)). Yet C.M. di d not fi le a notic e of appeal wi thi n thi rt y days after entry of thi s or der. Accordi ngly, we l ack jurisdi cti on to rev i ew the August 24, 2012 or der.
¶15 However , the juve ni le court enter ed a second o r d e r
. On S e p t ember 25, 2012, C.M. fi led a second mot i on seeki ng the same relief as her fi rst motion: a ruli ng t ha t t he court lacked subject matter and personal ju r isd icti on ov er her. The juve ni le court deni ed thi s o r der on October 29, 2012. C.M.’s bri ef does not separately challen ge thi s or der. But in any event, we agr ee wi th the St ate that her “second motion i s clearly barred by ‘law of the case.’” Id. at 969.

20121023-CA 6 2014 UT App 234In re C.M.

¶16 Under the law-of- the-case doctrine, a co urt may in i ts di screti on rev i si t a ruli ng but may also “decline to reo pen a matter i t has already deci ded.” IHC Health Servs., Inc. v. D&K Mgmt., Inc. , 2008 UT 73, ¶ 27, 196 P.3d 588. A court i s required to reo pen a prior deci si on only “(1) when th e r e ha s been an interv ening change of contro lling authority; (2) when n e w e vi d e n c e h a s b e come availab le;

or (3) when the court i s convin ced that i ts prior deci si on was clearly

err oneous and would work a mani fest injusti ce.” Id. ¶ 34 (ci tation and i nternal quot ation marks omi tte d). C.M.’s second m otion di d not assert any of these gr ounds or, for that matter , any gr ounds not asserted in t he motion already rej ected by the juve ni le court. She di d attach a declaration, but i t alleged only facts that were availab le at the tim e of the or i gin al motion “and wi th d ue di li gence could have been i nclu ded i n the or i gin al motio n. ” S e e Amica Mut. , 768 P.2d at 969. Furt hermor e, C.M. fai ls to address the relev ant law on appeal. Thus, C.M. made no atte mpt below and makes no atte mpt
on appeal to explain why the juve ni le court was legally required to
rev i si t i ts August 24, 2012 or der. According l y , t o the ext ent C.M. seeks to separately appeal the juve ni le court’s or der of October 29, 2012, we affi rm the j udgment of the j uveni le court.

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