Peters v. Pine Meadow Ranch Home Association

2007 UT 2
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Paul Howard Peters, No. 20050806
Plaintiff and Petitioner,
v.
Pine Meadow Ranch Home Association
aka Pine Meadow Ranch Home Owners
Association and as Pine Meadow
Ranch Association,
Defendant and Respondent.
___________________________________
Forest Meadow Ranch Property No. 20050805
Owners Association, L.L.C.,
Plaintiff and Petitioner,
v.
Pine Meadow Ranch Home Association
aka Pine Meadow Ranch Home Owners
Association and as Pine Meadow F I L E D
Ranch Association,
Defendant and Respondent. January 12, 2007
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Third District, Silver Summit
The Honorable Bruce Lubeck
Nos. 990600413, 000600092
Attorneys: Boyd Kimball Dyer, Salt Lake City, for plaintiffs
Edwin C. Barnes, Walter A. Romney, Jr., Salt Lake
City, for defendant
---
On Certiorari to the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1 We granted certiorari in these two related cases to
review the issue of whether the beneficiary of a trust has

1 Forest Meadow Ranch Prop. Owners Ass’n, L.L.C. v. Pine
Meadows Ranch Home Ass’n, 2005 UT App 294, ¶¶ 2-15, 118 P.3d 871;
Peters v. Pine Meadows Ranch Home Ass’n, 2005 UT App 295U, paras.
4-9.
No. 20050806 2
authority to impose binding covenants, conditions, and
restrictions on real property held in trust. We decline to reach
this issue, however, because petitioners’ briefs in each case are
replete with unfounded accusations impugning the integrity of the
court of appeals panel that heard the cases below. These
accusations include allegations, both direct and indirect, that
the panel intentionally fabricated evidence, intentionally
misstated the holding of a case, and acted with improper motives.
Further, petitioners’ briefs are otherwise disrespectful of the
judiciary. Accordingly, we strike petitioners’ briefs as
containing irrelevant and scandalous matters in violation of rule
24(k) of the Utah Rules of Appellate Procedure, affirm the result
reached by the court of appeals in each case, and assess attorney
fees against petitioners’ counsel. Because we have not
considered the certiorari question in either case and have not
taken the opportunity to review the merits of the court of
appeals’ decisions, we limit those decisions to their facts and
deem them without precedential effect.
BACKGROUND
¶2 These cases share in large measure a complex and
interesting set of facts that, because of the conduct of counsel
(the same lawyer represented the petitioners in both cases), is
made irrelevant to our resolution of either case. Accordingly,
we give only a brief overview here. A more detailed recitation
of the facts can be found in the court of appeals’ opinions.1
¶3 In 1965, F.E. and Mae P. Bates deeded a large tract of
land in Summit County to “Security Title Company” as “Trustee.”
Respondent Pine Meadow Ranch Home Owner’s Association (the
“Association”) seeks to levy fees against each petitioner to
maintain roadways and other improvements in subdivisions that
were established on this tract of land and in which the
petitioners now own property. The Association seeks to levy such
fees against Petitioner Forest Meadow Ranch Property Owners
Association, L.L.C. (“Forest Meadow”) based on covenants,
conditions, and restrictions (“CC&Rs”) purportedly imposed by
Deseret Diversified Development (“Deseret”) in 1971. The
Association seeks to levy such fees against Petitioner Paul
Howard Peters based on CC&Rs purportedly imposed by Pine Meadow
Ranch, Inc. (“PMRI”) in 1973.

2 Forest Meadow, 2005 UT App 294, ¶ 36; Peters, 2005 UT App
295U, para. 10.
3 Forest Meadow, 2005 UT App 294, ¶ 36; Peters, 2005 UT App
295U, para.6.
4 Forest Meadow, 2005 UT App 294, ¶¶ 3 & n.2, 30.
5 2000 UT 9, 994 P.2d 201.
3 No. 20050806
¶4 The petitioners brought these actions to have the CC&Rs
declared invalid. In both cases, the district court granted
summary judgment to the Association, concluding that the CC&Rs
were effective based on various legal and equitable principles.
The petitioners appealed, and the court of appeals affirmed the
district court’s determinations that Deseret and PMRI had the
authority as beneficial owners to impose the CC&Rs.2 The court
of appeals also concluded that even if Deseret or PMRI had lacked
such authority as beneficial owners, Security had ratified the
CC&Rs as trustee.3 We granted certiorari to consider whether
Deseret and PMRI had the authority as beneficial owners to impose
binding CC&Rs. We have jurisdiction pursuant to Utah Code
section 78-2-2(3)(a), (5).
¶5 In his briefs in support of Peters’s and Forest
Meadow’s petitions for certiorari, and in his briefs to us
following our grants of certiorari, counsel accuses the court of
appeals panel that heard the cases below of judicial misconduct.
This accusation stems largely from the court of appeals’
statement that W. Brent Jensen signed a plat on behalf of both
Deseret and Security.4 The court of appeals erred in making this
statement. In fact, W. Brent Jensen signed on behalf of Deseret,
and Leo D. Jensen signed on behalf of Security. Based on this
error, petitioners’ counsel accuses the court of appeals panel of
intentionally fabricating evidence. He further contends that the
error was motivated by some improper motive. He offers no
support for these accusations of impropriety beyond the mere fact
that the error occurred.
¶6 Additionally, counsel accuses the court of appeals of
misstating the holding in Capital Assets Financial Services v.
Maxwell.5 Indeed, the court of appeals did err in its
interpretation of this case. But counsel goes beyond
demonstrating the error. He contends that this error, too, was
intentional and the product of an improper motive by the court of
appeals. Again, he offers no support for this accusation beyond
the purported error itself.

6 Utah R. App. P. 24(k). When the briefs in these cases
were filed in January 2006, this language was found in rule 24(j)
of the Utah Rules of Civil Procedure. The rules have since been
amended; however, this language remained the same and thus we
cite to the current numbering of the rule.
7 Merriam-Webster’s Collegiate Dictionary 1042 (10th ed.
1998) (defining “scandalous” as “libelous, defamatory” and
“offensive to propriety or morality”).
No. 20050806 4
ANALYSIS
¶7 Petitioners’ counsel was fully entitled to note the
factual error made by the court of appeals with respect to the
signatories to the plat. Indeed, it was his obligation as an
advocate to do so. So, too, was it fully appropriate for counsel
to assert that the court of appeals had incorrectly interpreted
the Capital Assets case. Indeed, to address errors of fact and
law is the very purpose of the appellate process. But to argue
that a court has committed an error is one thing; to argue that a
court has intentionally committed that error due to an improper
motive is quite another. There is a light year’s difference
between an innocent mistake of fact or law and the intentional
fabrication of evidence or the intentional misstatement of a
holding.
¶8 Should a lawyer be faced with genuine judicial
misconduct, there are appropriate avenues available for him or
her to address it, both within the context of a particular case
and in a separate proceeding before the Judicial Conduct
Commission. To make bald and unfounded accusations of judicial
impropriety in briefs filed with this court is not such an
avenue. In so doing, counsel has overstepped the bounds of
appropriate appellate advocacy.
¶9 Rule 24(k) of the Utah Rules of Appellate Procedure
provides that “[a]ll briefs under this rule must be . . . free
from burdensome, irrelevant, immaterial or scandalous matters.
Briefs which are not in compliance may be disregarded or
stricken, . . . and the court may assess attorney fees against
the offending lawyer.”6 Counsel’s unfounded accusations
regarding the supposed improper motives of the court of appeals
panel are irrelevant to the questions upon which we granted
certiorari. Further, those accusations are scandalous in that
they are defamatory and offensive to propriety.7
¶10 In his briefs, counsel argues that the court of appeals
panel that decided these cases committed both legal and factual

8 Utah R. Prof’l Conduct 8.2(a).
9 Utah Standards of Professionalism & Civility 3.
10 Id. 1.
5 No. 20050806
errors. As noted, it was fully appropriate for counsel to do so.
But he has taken the additional step of claiming that these
errors were intentional and the result of improper motives. In
support of these accusations, counsel offers nothing beyond the
fact that the errors were made.
¶11 That unsupported accusations of this kind are
inappropriate should have been apparent to counsel. Rule 8.2 of
the Utah Rules of Professional Conduct provides that “[a] lawyer
shall not make a public statement that the lawyer knows to be
false or with reckless disregard as to its truth or falsity
concerning the qualifications or integrity of a judge . . . .”8
Further, standard 3 of the Standards of Professionalism and
Civility provides that “[l]awyers shall not, without an adequate
factual basis, attribute to . . . the court improper motives,
purpose, or conduct.”9 Finally, standard 1 provides that
“lawyers shall treat all other counsel, parties, judges,
witnesses, and other participants in all proceedings in a
courteous and dignified manner.”10
¶12 Counsel’s briefs before this court in both Forest
Meadow and Peters include a substantial amount of material that
is offensive, inappropriate, and disrespectful, and his conduct
in either case, standing alone, violates rule 24(k) and warrants
the sanctions we impose. In Forest Meadow, these accusations
include the following:
• Good judges never fabricate
evidence because the actual evidence is
the foundation for their decisions.
• [I]f judges start with decision [sic]
they want to reach for reasons of
prejudice, bias, corruption or whatever,
and then work backwards to the evidence,
they may fabricate the evidence they
need to make their decisions plausible.
Petitioner respectfully asks the Court
to judge for itself what happened in
this case.

No. 20050806 6
• [The authoring judge] needed
evidence to justify her decision that
W. Brent Jensen was the trust
beneficiary in 1965. There was no such
evidence, so she simply fabricated it
sua sponte.
• This was no innocent mistake.
• The Court might want to think about the
question Petitioner’s President asked
when he read [the authoring judge’s]
opinion. “Everyone knows Brent Jensen
was never president of Security Title,
so why did she do this to me, is it
because I’m German, is it because I’m
not Mormon?” The only right way to deal
with his “why” question is for this
Court to grant certiorari and make it
moot.
• [F]or the Court of Appeals to dispose of
a case on the basis of prejudice, bias,
corruption or any basis other than the
actual evidence in the record was to
deny Petitioner due process of law.
• The Court of Appeals then goes on to say
that Security transferred title to the
lots in Plat D to Deseret to develop,
but that is another fabrication.
• No reasonable person could have drawn
the Court of Appeal’s holding from the
actual holding of this Court. It is
beyond the range of “innocent mistake”
or even “negligent mistake.” The truth
is sometimes a matter of degree--as when
the defendant claimed he didn’t know the
revolver was loaded when he accidentally
shot his wife--six times.
Petitioner respectfully asks this
Court to think about the question of why
the Court of Appeals so mischaracterized
this Court’s holding. The degree of
falsity is on a par with its holding
that W. Brent Jensen signed the plat for
Security Title when the document was

7 No. 20050806
actually signed by Leo D. Jensen. Could
any Utah judge write the words
“[W. Brent] Jensen signed on behalf of
both Security and Deseret” without
reading the plat? Could any Utah judge
write the words “holding beneficial
interest in real property could encumber
that interest” without reading this
Court’s opinion? If the Court of
Appeals did read the plat and the
opinion, why did it make these false
statements? (Alteration in original).
• [T]he false claim that W. Brent Jensen
signed the plat on behalf of Security
Title originated with [the authoring
judge].
Courts of law sit in judgment on
other professions. Suppose a doctor
operated on “Leo D. Jensen” when the
true patient was “W. Brent Jensen.” The
doctor might become the defendant in a
court of law. Doctors are expert in
medicine. What are judges expert in?
Does what [the authoring judge] did in
this case meet this Court’s professional
standards?
¶13 In Peters, counsel made similar accusations in his
briefs, often using the same language as he did in Forest Meadow:
• Turning from the actual evidence to
the evidence fabricated by the Court of
Appeals, . . . .
• This was no innocent mistake.
• The major point is that for the Court of
Appeals to base its decision on evidence
of its own fabrication denied Petitioner
due process of law. The Court of
Appeals so far departed from the
accepted and usual course of judicial
proceedings as to call for this Court to
exercise its power of supervision.
• Petitioner respectfully asks the Court
to step back from the Court of Appeals’

No. 20050806 8
false evidence and the confusion of its
opinion . . . .
• The first thing wrong with that
statement is that it is the facts
fabricated by the Court of Appeals that
support that conclusion, not the actual
facts.
• [Our prior briefs] discuss three
instances of the Court of Appeals
fabricating evidence. There are more.
• It appears that the Court of
Appeals solved the problem by
fabricating a new status for Respondent.
. . .
A cynic would say that once a Court
decides to fabricate evidence, there is
no limit to the problems it can solve.
• So, if a court fabricates evidence,
whether intentionally, negligently, or
through innocent mistake, it destroys
the moral premise of the legal system.
A judge who fabricates evidence, even
from a sincere motive to do justice in a
particular case, has no moral standing
whatsoever.
• No reasonable person could have drawn
the Court of Appeal’s holding from the
actual holding of this Court. It is
beyond the range of “innocent mistake”
or even “negligent mistake.” The truth
is sometimes a matter of degree–-as when
the defendant claimed he didn’t know the
revolver was loaded when he accidentally
shot his wife–-six times.
• Petitioner respectfully asks this
Court to think about the question of why
the Court of Appeals so mischaracterized
this Court’s holding . . . why did it
make these false statements?
• The Court of Appeals falsified the
identity of the declarant of the 1973

11 See In re Westfall, 808 S.W.2d 829, 832 (Mo. 1991)
(holding that counsel’s statements directed specifically at
deciding judge’s motivation and integrity were personal attacks).
12 Utah Standards of Professionalism & Civility 1.
9 No. 20050806
CC&R’s to create false evidence that
there actually was a trust.
¶14 One need only read these excerpts to be convinced of
the scandalous nature of counsel’s briefs. Counsel seeks to
justify his accusations, however, by arguing that just as
Biblical prophets “hate[d] the sin but love[d] the sinner,” “a
lawyer [may] challenge what a lower court did in the strongest
terms without fear that it will be taken as a personal attack.”
Accordingly, he makes the following claim: “Counsel for
Petitioner criticize[] the Court of Appeals and [the authoring
judge] for what they did. He did not make a personal attack.”
¶15 Yet counsel’s briefs are decidedly personal.11 Counsel
repeatedly alleges that the court of appeals, and specifically
the authoring judge, “fabricated evidence.” Counsel also asserts
that the court of appeals’ characterization of our Capital Assets
case went beyond the range of “innocent mistake” or even
“negligent mistake.” These statements personally attack the
integrity of the court of appeals panel, suggesting serious
intentional misconduct. Indeed, at oral argument for Peters,
counsel specifically admitted that he intended his briefs to
raise the question of judicial misconduct.
¶16 In addition to the unsubstantiated accusations of
misconduct, counsel also makes statements generally disrespectful
to this court as well as the court of appeals. Moreover, the
statements quoted above and the statements detailed below
illustrate counsel’s failure in each case to “treat . . . judges
. . . in a courteous and dignified manner” as required by the
Utah Standards of Professionalism & Civility.12
¶17 In Forest Meadow, counsel’s disrespectful statements
include the following:
• Frankly, Petitioner is worried that
the conduct of the Utah Court of Appeals
was so outrageous that this Court will
deny certiorari to avoid embarrassment.
• To use the Court of Appeal’s metaphor,
most of the trees are not in the forest!

No. 20050806 10
Extending the metaphor, the Court of
Appeals does not even recognize the
forest.
• But, on a practical level, how many
Californian hunters would come to Utah
if Utah declared open season on hunting
deer? And as a practical matter, what
will happen if this Court declares open
season on hunting elderly trust
beneficiaries?
• It is ludicrous for the Court of Appeals
to hold that being covered by CC&R’s is
no different from not being covered at
all, and that Petitioner is not a
“similarly situated” with itself.
¶18 In Peters, counsel also made the following
disrespectful statements:
• Granting certiorari in these cases is
necessary to restore the integrity of
the Utah Judicial Department.
• Petitioner respectfully points out
that unless this Court takes up the
agency issue, it will give its approval
to what it knows is a gross injustice.
• The holding of the Utah Court of
Appeals cannot be defended on any moral
or legal grounds. It is contrary to
every principle of decency and law.
But, and perhaps this is the decisive
point, it could be avoided. This Court
has the power to say “well, we did not
grant certiorari with respect to that
issue so we will not take it up no
matter how immoral and illegal it may
have been.” But, it would amount to
ratifying a falsehood.
• This Court has the power to avoid
the issue, but it cannot avoid the moral
responsibility. A play ground bully
cannot justify beating up a weaker child
by saying “I promised myself I would

11 No. 20050806
beat you, and it would be wrong for me
to break my promise.”
• I want to respond to [the alleged
judicial misconduct] in terms of a
recent news development with respect to
a little town in Iraq called Haditha.
And what’s happened here is that news
stories have come out that suggest that
there is grave misconduct there--that
some Marines went out of control and
shot some innocent civilians. The
response of the Marine Corps is
immediately to start investigating, to
immediately start an investigation. It
doesn’t make any assumptions because the
Marine Corps is responsible for the
conduct of the Marines.
You, you five are like the
Commandant of the Marine Corps. You are
in charge of the judicial conduct of the
State of Utah. If something happens
that, and I think this is true here,
that could possibly, even could possibly
go beyond the normal course of error--
¶19 It is regrettable that petitioners’ counsel has elected
to present his argument in an accusatory, offensive, and
disrespectful manner. Our opinion should not be viewed, however,
as questioning counsel’s competency to practice law. Indeed, in
both cases counsel has exhibited a firm grasp of the legal
principles that should have been at issue. Unfortunately, the
substantial amount of objectionable content in his briefs made
irrelevant the potentially sound legal arguments he was making.
¶20 In both cases, the egregiousness of counsel’s conduct
has led to sanctions that have directly caused a detrimental
result for his clients. We take this occasion to note, however,
that the detriment to clients’ interests caused by such conduct
is not limited to cases in which sanctions are imposed. Even
where a lawyer’s unprofessionalism or incivility does not warrant
sanctions, it often will nevertheless diminish his or her
effectiveness.
¶21 There is a misconception among some lawyers and clients
that advocacy can be enhanced by personal attacks, overly
aggressive conduct, or confrontational tactics. Although it is
true that this type of advocacy may occasionally lead to some

No. 20050806 12
short-term tactical advantages, our collective experience as a
court at various levels of the judicial process has convinced us
that it is usually highly counterproductive. It distracts the
decision-maker from the merits of the case and erodes the
credibility of the advocate. Credibility is often directly tied
to civility and professionalism. Judges, jurors, and other
lawyers are more likely to believe a lawyer who is courteous and
treats others with dignity and respect. Counsel in the case at
bar would have been far more effective had he focused exclusively
on the facts and the law without making his additional commentary
disparaging and insulting the judiciary.
¶22 We have sought to encourage the bar to aspire to
professionalism and civility in the practice of law through our
adoption of the Standards of Professionalism and Civility. While
these standards are not binding, we encourage members of the bar
to study and follow them. Had counsel in the cases at bar
observed these standards, he and his clients would not have
incurred the severe sanctions we impose today.
CONCLUSION
¶23 Counsel’s briefs in both the Forest Meadow and Peters
cases are replete with attacks on the integrity of the court of
appeals panel that decided the cases below. Those attacks are
unfounded, scandalous, irrelevant to the questions upon which we
have granted certiorari, and disrespectful of the judiciary.
Accordingly, pursuant to rule 24(k) of the Utah Rules of
Appellate Procedure, we strike those briefs and assess attorney
fees against petitioners’ counsel. We remand to the district
court for a determination of the amount of attorney fees incurred
by respondent in responding to petitioners’ briefs to us
following our grant of certiorari. We decline to consider the
issues as to which we granted certiorari. Instead, we affirm the
result reached by the court of appeals in both Forest Meadow and
Peters, limit the court of appeals’ decisions to the facts of
each case, and deem the decisions to be without precedential
effect.
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¶24 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.