Dipoma v. McPhie

• Citation: 1 P.3d 564,2000 Utah Ct. App. 130
• Decision Date: 04 May 2000
• Docket Number: No. 990526-CA.,990526-CA.
• Parties: Mary Ann Lucero DIPOMA, Plaintiff and Appellant, v. Brian McPHIE; and Does 1 through 20, whose true names are unknown, Defendants and Appellees.
• Court: Court of Appeals of Utah

1 P.3d 564

2000 Utah Ct. App. 130

Mary Ann Lucero DIPOMA, Plaintiff and Appellant, v. Brian McPHIE; and Does , whose true names are unknown, Defendants and Appellees.

No. 990526-CA.

Court of Appeals of Utah.

May 4, 2000.

Craig S. Cook, Salt Lake City, for Appellant.

Paul M. Belnap and Darren K. Nelson, Strong & Hanni, Salt Lake City, for Appellees.

Before GREENWOOD, P.J., BENCH, and ORME, JJ.

OPINION

GREENWOOD, Presiding Judge:

¶ 1 Appellant, Mary Ann Lucero Dipoma, appeals from the trial court's dismissal of her action for failure to properly file her complaint with the required filing fee within the applicable statute of limitation period. We conclude Dipoma's action was timely filed and, therefore, reverse.

BACKGROUND¹

¶ 2 On November 24, 1997, Dipoma filed a pro se complaint against Brian McPhie seeking damages for injuries she sustained in a traffic accident on November 29, 1993. At the time she filed the complaint, Dipoma submitted a personal check for payment of the filing fee. The check was returned to the clerk of the court for insufficient funds on December 29, 1997—after the applicable four-year statute of limitation had run. See Utah Code Ann. § 78-12-25 (1996). The record does not disclose when the court clerk notified Dipoma that her check had been returned. The record does reflect, however, that Dipoma attempted to pay with another personal check on March 10, 1998. The court clerk would not accept the check and informed Dipoma that she must pay "with another form." According to the record, Dipoma paid the filing fee on August 11, 1998. A summons was issued on August 13, 1998 and McPhie was served on August 26, 1998, almost nine months after the statute of limitation had run. Dipoma has not submitted anything to suggest she was unable to pay the filing fee.

¶ 3 McPhie moved for summary judgment, arguing that Dipoma had not commenced her action within the applicable four-year statute of limitation because her complaint was not "filed" until August 11, 1998, when she paid the required fee. The trial court granted McPhie's motion on May 12, 1999, holding that a complaint accompanied by a check later returned for insufficient funds is not filed for purposes of satisfying a statute of limitation. Dipoma filed a timely notice of appeal on June 10, 1999.

ISSUES AND STANDARD OF REVIEW

¶ 4 Dipoma claims the trial court erred in determining she had not filed her action within the applicable statute of limitation. McPhie argues that even if the trial court erred in dismissing Dipoma's action based on her failure to pay the fee prior to the lapse of the limitation period, we should affirm the trial court on the alternative ground that Dipoma did not tender the filing fee within a reasonable time. These issues present questions of law which we review for correctness. See Gerbich v. Numed Inc., 1999 UT 37, ¶ 10, 977 P.2d 1205

; State v. Pena, 869 P.2d 932, 936 (Utah 1994). This court may affirm a lower court's ruling on any alternative ground "`even though that ground or theory was not identified by the lower court as the basis of its ruling.'" State v. Jarman, 1999 UT App 269, ¶ 5 n. 2, 987 P.2d 1284 (citation omitted).

ANALYSIS

Whether Filing Fees Are Jurisdictional

¶ 5 McPhie argued and the trial court agreed that the Utah Code requires the payment of filing fees prior to the commencement of an action. On this basis, the trial court determined that the Legislature intended filing fees to be a jurisdictional prerequisite for commencing an action. For this case, the applicable portion of Rule 3 of the Utah Rules of Civil Procedure states: "A civil action is commenced . . . by filing a complaint with the court. . . ." Utah R. Civ. P. 3(a)(1). McPhie argues that "filing" in Rule 3 incorporates sections 21-1-1, 21-1-5 and 21-7-2 of the Utah Code which set forth the court clerk's duties and required filing fees. Because these sections require that the court clerk collect filing fees in advance of performance of services, McPhie claims that payment of filing fees is a jurisdictional requirement. On the other hand, Dipoma argues that Rule 3 neither expressly incorporates these sections nor contains any language requiring filing fees, and thus paying filing fees is not a jurisdictional requirement to commence an action.

¶ 6 Section 21-1-1 states: "For services performed in their respective offices, the officers named in this chapter shall collect in advance for the use and benefit of the state the fees hereinafter enumerated and such other fees as may be provided by law." Utah Code Ann. § 21-1-1 (1998). Like section 21-1-1, section 21-7-2 mandates that state and county officers collect fees in advance of rendering any service: "The state and county officers mentioned in this title may not perform any official service unless the fees prescribed for that service are paid in advance." Id. § 21-7-2(1)(a). Section 21-1-5(1)(a) sets forth the required fee for commencing an action: "The fee for filing any civil complaint or petition invoking the jurisdiction of a court of record not governed by another subsection is $120." Id. § 21-1-5(1)(a). Finally, section 21-1-5(1)(cc) states: "all fees shall be paid at the time the clerk accepts the pleading for filing or performs the requested service." Id. § 21-1-5(1)(cc) (Supp.1999).

¶ 7 Utah courts have not addressed whether filing fees are jurisdictional at the trial court level. Other state and federal courts, however, have addressed the interplay between Rule 3 and filing provisions with differing results. For example, the Colorado Court of Appeals addressed this issue under the same factual context—improper payment of fees due to a check drawn on insufficient funds. See Broker House Int'l, Ltd. v. Bendelow, 952 P.2d 860, 862-63 (Colo.Ct.App. 1998)

. Similar to Utah, Colorado's rules of civil procedure are modeled after the federal rules, and Colorado has a statute which requires payment of fees at the time a complaint is filed. See id. The Colorado Court of Appeals concluded that under this statutory scheme, a complaint accompanied by an insufficient funds check is not filed for purposes of satisfying the applicable statute of limitation. See id. at 863.

¶ 8 Like Colorado, other courts have determined that filing fees are jurisdictional and have noted the distinction between filing fees at the trial court level as opposed to the appellate level. See, e.g., Wanamaker v. Columbian Rope Co., 713 F.Supp. 533, 538 (N.D.N.Y.1989),

aff'd,

108 F.3d 462, 465 (2nd Cir.1997) (discussing the distinction and finding that under federal rules failure to pay fee is jurisdictional); Keith v. Heckler, 603 F.Supp. 150, 156-57 (E.D.Va.1985) (same); De-Gas, Inc. v. Midland Resources, 470 So.2d 1218, 1222 (Ala.1985) (same under Alabama rules of procedure); Boostrom v. Bach, 622 N.E.2d 175, 176-77 (Ind.1993) (same under Indiana rules of procedure). While courts have held that docketing fees are not jurisdictional at the appellate level,²

Wanamaker, Keith, De-Gas, and Boostrom have distinguished filing fees at the trial court level from fees on appeal based on the procedural differences in commencing an action as opposed to appealing a judgment or order. Significantly, one court stated:

Authorizing the commencement of the district court action without the required fee would breed countless administrative and procedural woes, and give to the Clerk's Office an element of discretion where none was intended. The Clerk's Office could be converted into a part-time credit institution, spending significant energy collecting fees as well as extending credit.

Keith, 603 F.Supp. at 157. Furthermore, one court commented that requiring filing fees at the trial court level discourages parties from filing frivolous complaints. See De-Gas, 470 So.2d at 1220

.

¶ 9 Nevertheless, the majority of courts considering this issue have concluded that prepayment of filing fees is not jurisdictional at the trial court level. For example, a Kansas federal district court examined the issue under the federal rules of civil procedure in conjunction with local rules for the District of Kansas, and determined that while 28 U.S.C. § 1914(a) uses the word "shall," it does not state when the fee is required. See Burnett v. Perry Mfg., Inc., 151 F.R.D. 398, 402 (D.Kan.1993). The court stated, "[w]hen read with 28 U.S.C. § 1914(c), in which Congress allows each district court to require by rule advance payment of fees, it seems clear that Congress did not intend by 28 U.S.C. § 1914(a) to require parties to pre-pay the fee." Id. Because the Kansas district had no local rule requiring the prepayment of fees, the court concluded that prepayment was not a jurisdictional requirement. See id. In arriving at this conclusion, the court noted that "[a]lthough there is a split among federal courts, the greater weight of authority indicates that the filing fee requirement is not jurisdictional." Id. at 401 (citations omitted); cf. Jarrett v. U.S. Sprint Communications Co., 22 F.3d 256, 258-59 (10th Cir.1994)

(discussing split between circuits and finding "district court authority supporting either argument").

¶ 10 Utah appellate courts have not addressed whether filing fees are jurisdictional in order to commence an action, but our courts have examined whether fees are jurisdictional on appeal. See, e.g., State v. Johnson, 700 P.2d 1125, 1129 n. 1 (Utah 1985)

; Prowswood, Inc. v. Mountain Fuel Supply Co., 676 P.2d 952, 955, 958 (Utah 1984); In re Estate of Ratliff, 19 Utah 2d 346, 431 P.2d 571, 573 (Utah 1967); Jacobsen v. Jeffries, 86 Utah 587, 47 P.2d 892, 893 (Utah 1935) (per curiam); Bunch v. Englehorn, 906 P.2d 918, 919 (Utah Ct.App.1995); Hausknect v. Industrial Comm'n, 882 P.2d 683, 685 (Utah Ct.App.1994),

cert. granted, 892 P.2d 13 (Utah 1995), dismissed by, 938 P.2d 248 (Utah 1996). While not controlling on this precise issue, these cases are instructive in their reasoning. Importantly, Utah courts have consistently...