2014 UT App 234

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF C.M., A PERSON UNDER

EIGHTEEN YEARS OF AGE.

C.M.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Memorandum Decision

No. 20121023-CA

Filed October 2, 2014

Fifth District Juvenile Court, Cedar City Department

The Honorable Thomas M. Higbee

No. 1014871

Thomas M. Burton, Attorney for Appellant

Sean D. Reyes, Andrew F. Peterson, and John J.

Nielsen, Attorneys for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Memorandum

Decision, in which JUDGE GREGORY K. ORME and SENIOR JUDGE

PAMELA T. GREENWOOD concurred.1

VOROS, Judge:

¶1 In this delinquency case, C.M., a minor at the time of the

delinquency, requests an order of this court “striking or vacating

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by

special assignment as authorized by law. See generally Utah Code

Jud. Admin. R. 11-201(6).
In re C.M.

the April 14, 2009 conviction.” C.M. contends that the juvenile 2

court proceeded to adjudicate her without first obtaining personal

jurisdiction over her and that her later stipulation to the juvenile

court’s jurisdiction was unauthorized and thus failed to confer

jurisdiction on the court.

1

¶2 At the outset, the State asks us to censure C.M.’s current

counsel on the ground that his appellate brief, “like his pleadings

below, is littered with comments that disparage the integrity and

motives of the juvenile court, the prosecutor, and prior counsel.”

¶3 The State relies on Peters v. Pine Meadow Ranch Home

Association, 2007 UT 2, 151 P.3d 962. There, the petitioner’s counsel

filed briefs “replete with attacks on the integrity of the court of

appeals panel that decided the cases below. Those attacks [were]

unfounded, scandalous, irrelevant . . . and disrespectful of the

judiciary.” Id. ¶ 23. Those briefs identified claimed errors in the

court of appeals decision under review. Id. ¶ 10. But they went

further, alleging that those errors “were intentional and the result

of improper motives.” Id. Yet in support of those accusations, the

petitioner’s counsel offered “nothing beyond the fact that the errors

were made.” Id. ¶ 10.

¶4 The supreme court concluded that such accusations

“personally attack[ed] the integrity of the court of appeals panel,

suggesting serious intentional misconduct.” Id. ¶ 15. It further

determined that they violated rule 8.2 of the Utah Rules of

Professional Conduct and Standards 1 and 3 of the Utah Standards 3

2. The April 14, 2009 order of the juvenile court was in fact not a

“conviction” but an adjudication that C.M.’s acts had brought her

within the jurisdiction of the juvenile court.

3. Rule 8.2(a) of the Utah Rules of Professional Conduct states, “A

lawyer shall not make a public statement that the lawyer knows to

(continued...)

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

of Professionalism and Civility. Id. ¶ 11. Accordingly, pursuant to 4

rule 24(k) of the Utah Rules of Appellate Procedure, the court 5

struck the offending briefs, assessed attorney fees against the

petitioner’s counsel, and declined to consider the issues on review.

Id. ¶ 23.

¶5 Here, C.M.’s brief suffers from similar flaws. For example,

it refers to a minute entry in the juvenile court as “a complete

fabrication.” It also repeats on appeal the charge that the State’s

arguments “revealed a collaboration between prosecution and

defense counsel to establish personal jurisdiction over C.M.,” an

accusation for which present counsel was admonished by the

juvenile court. That court found that counsel had “produced no

evidence of any ‘collaboration’ because none exists.”

¶6 Based on the foregoing, the State asks this courtto admonish

counsel and warn him against employing such tactics in the future.

3. (...continued)

be false or with reckless disregard as to its truth or falsity

concerning the qualifications or integrity of a judge, adjudicatory

officer or a candidate for election or appointment to judicial office.”

4. Standard 1 of the Utah Standards of Professionalism and Civility

states in part that “lawyers shall treat all other counsel, parties,

judges, witnesses, and other participants in all proceedings in a

courteous and dignified manner.” Standard 3 of the Utah

Standards of Professionalism and Civility states in part, “Lawyers

shall not, without an adequate factual basis, attribute to other

counsel or the court improper motives, purpose, or conduct.”

5. Rule 24(k) of the Utah Rules of Appellate Procedure states, “All

briefs under this rule must be concise, presented with accuracy,

logically arranged with proper headings and free from

burdensome, irrelevant, immaterial or scandalous matters. Briefs

which are not in compliance may be disregarded or stricken, on

motion or sua sponte by the court, and the court may assess

attorney fees against the offending lawyer.”

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

While noting that we recently struck a brief filed by C.M.’s counsel

in an unrelated case for “irrelevant and scandalous” content, see

State v. Wolf, 2014 UT App 18, ¶ 12 n.4, 319 P.3d 757, the State does

not ask that we strike C.M.’s brief here. Counsel for C.M. did not

file a reply brief.

¶7 We agree with the State that, like the petitioner’s briefs in

Peters, C.M’s brief here suggests that the lower court’s alleged

errors were intentional and the result of improper motives. Peters,

2007 UT 2, ¶ 10. As in Peters, it accuses the lower court of

fabricating a factual finding. Id. ¶ 12. And as in Peters, C.M.’s

counsel supports these accusations with “nothing beyond the fact

that the errors were made.” Id. ¶ 10.

¶8 Nevertheless, these offenses are neither as excessive nor as

pervasive as the misconduct sanctioned in Peters. Furthermore,

counsel offered a partial apology in oral argument before this

court. Accordingly, we do not strike the brief, assess attorney fees

against counsel, or decline to entertain the appeal. However, we

caution counsel against employing such language in the future. See

Superior Receivable Servs. v. Pett, 2008 UT App 225, ¶ 12, 191 P.3d 31.

Assigning Machiavellian motives to errors of judges and lawyers

is improper and usually inaccurate. And aside from implicating the

Rules of Professional Conduct and the Standards of

Professionalism and Civility, inflammatory language and personal

accusations undermine the position they ostensibly support.

Knowledgeable readers understand that those with persuasive

arguments based on law and logic rarely resort to ad hominem

attacks.

2

¶9 C.M.’s principal contention on appeal is that the juvenile

court lacked personal and subject matter jurisdiction over her. The

parties agree that the juvenile court lacked personal jurisdiction

over C.M. at the time it originally adjudicated her in absentia.

However, defense counsel later filed a stipulated motion on her

behalf seeking to reduce the levels of the offenses. The juvenile

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

court granted the motion and reduced the levels of the offenses for

which she was adjudicated.

¶10 Later, through present counsel, C.M. filedamotiontovacate

the amended adjudication on the ground that the court at all times

lacked personal and subject matterjurisdiction over C.M. The State

responded that C.M. waived any defect in personal jurisdiction by

appearing and renegotiating the adjudication. At the motion

hearing, C.M.’s current counsel sought leave to further brief the

issue of waiver. The juvenile court allowed further briefing. Two

months later, the juvenile court’s ruling concluded that it had both

subject matter and personal jurisdiction over C.M. It further noted

that while the State’s brief addressed waiver, “counsel for [C.M.]

never addressed the issue of waiver.” The court ruled that C.M.

had waived her claim that the court lacked personal jurisdiction. In

addition, the court responded to C.M.’s claim that the attorney who

negotiated the reduction in charges “never represented her, but

rather represented her mother.” The court found that “[t]he only

evidence on that point”—specifically, the mother’s affidavit—“is

contrary to this assertion.” This order was dated August 24, 2012.

C.M. did not appeal from it.

¶11 But on September 25, 2012, again represented by present

counsel, C.M. filed a second motion seeking to vacate the juvenile

court’s adjudication on the ground that the court lacked subject

matter and personal jurisdiction. No memorandum of law

accompanied the motion. The motion was “based upon the

declaration of [C.M.] and upon the pleadings and evidence already

before the court.” The declaration of C.M. alleged that, although

aware that her mother was attempting to get her charges reduced,

she had not retained counsel or authorized her mother to retain

counsel on her behalf. The declaration alleged no facts unknown to

C.M. at the time of the first motion.

¶12 The State’s response noted that the juvenile court had

“already rejected” C.M.’s claim that she knew nothing about the

attorney who obtained reduced charges on her behalf and made

other arguments. The State also attached a document apparently

signed by C.M. in 2010 authorizing her mother to receive

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

information regarding her case. The juvenile court denied the

second motion without comment on October 29, 2012. C.M. filed a

notice of appeal on November 28, 2012.

¶13 The State contends that we lack jurisdiction over this appeal

because C.M. did not file a timely notice of appeal. “An appeal may

be taken from a district orjuvenile court to the appellate court with

jurisdiction over the appeal from all final orders and judgments

. . . .” Utah R. App. P. 3(a). An appeal of right from a juvenile court

order not related to abuse, neglect, dependency, termination, or

adoption must be taken “within 30 days from the entry of the

order, decree, orjudgment appealed from.”UtahCode Ann. § 78A6-1109(2), (7) (LexisNexis 2012). “Failure to file a timely notice of

appeal deprives this court of jurisdiction over the appeal.” Reisbeck

v. HCA Health Servs. of Utah, Inc., 2000 UT 48, ¶ 5, 2 P.3d 447.

¶14 The juvenile court adjudicated C.M. delinquent in absentia

on April 14, 2009. C.M. understandably did not appeal that

judgment. When she later learned of it, she filed, through present

counsel, a “Motion to Strike” the adjudication. The State asserts,

and we agree, that this motion was in substance a rule 60(b)(4)

motion for relief from a void judgment. See Utah R. Civ. P. 60(b)(4);

see also Utah R. Juv. P. 48(a) (providing that rule 60 applies to postjudgment motions in juvenile court). The juvenile court denied this

motion on August 24, 2012. “[A]n order denying relief under rule

60(b) is a final appealable order.” Amica Mut. Ins. Co. v. Schettler,

768 P.2d 950, 970 (Utah Ct. App. 1989) (citing Mascaro v. Davis, 741

P.2d 938, 946 (Utah 1987)). Yet C.M. did not file a notice of appeal

within thirty days after entry of this order. Accordingly, we lack

jurisdiction to review the August 24, 2012 order.

¶15 However, the juvenile court entered a second order. On

September 25, 2012, C.M. filed a second motion seeking the same

relief as her first motion: a ruling that the court lacked subject

matter and personal jurisdiction over her. The juvenile court

denied this order on October 29, 2012. C.M.’s brief does not

separately challenge this order. But in any event, we agree with the

State that her “second motion is clearly barred by ‘law of the case.’”

Id. at 969.

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

¶16 Under the law-of-the-case doctrine, a court may in its

discretion revisit a ruling but may also “decline to reopen a matter

it has already decided.” IHC Health Servs., Inc. v. D&K Mgmt., Inc.,

2008 UT 73, ¶ 27, 196 P.3d 588. A court is required to reopen a prior

decision only “(1) when there has been an intervening change of

controlling authority; (2) when newevidencehasbecome available;

or(3) when the court is convinced that its prior decision was clearly

erroneous and would work a manifest injustice.” Id. ¶ 34 (citation

and internal quotation marks omitted). C.M.’s second motion did

not assert any of these grounds or, for that matter, any grounds not

asserted in the motion already rejected by the juvenile court. She

did attach a declaration, but it alleged only facts that were available

at the time of the original motion “and with due diligence could

have been included in the original motion.” See Amica Mut., 768

P.2d at 969. Furthermore, C.M. fails to address the relevant law on

appeal. Thus, C.M. made no attempt below and makes no attempt

on appeal to explain why the juvenile court was legally required to

revisit its August 24, 2012 order. Accordingly, to the extent C.M.

seeks to separately appeal the juvenile court’s order of October 29,

2012, we affirm the judgment of the juvenile court.

20121023-CA 7 2014 UT App 234