In re C.M. (C.M. v. State) ( 2014 )

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.”2 C.M. contends that the juvenile
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 Conduct3 and Standards 1 and 3 of the Utah Standards
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 234In re C.M.
of Professionalism and Civility.4 Id. ¶ 11. Accordingly, pursuant to
rule 24(k) of the Utah Rules of Appellate Procedure,5 the court
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 court to 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 234In 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 234In 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. filed a motion to vacate
the amended adjudication on the ground that the court at all times
lacked personal and subject matter jurisdiction 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 234In 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 or juvenile 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, or judgment appealed from.” Utah Code Ann. § 78A-
6-1109(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 post-
judgment 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 234In 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 new evidence has become 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