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Gorostieta v. Parkinson12/15/2000
er position. The Gorostietas counter that rule 3(a) is dispositive and, further, that because the rules are silent as to how the payment of fees is to be made, the clerk was permitted to use discretion in allowing the fees to be paid by mail.
The final judgment was signed on August 26, 1998. Because August has thirty-one days, the notice of appeal was due on September 25. See Utah R. App. P. 4(a) (requiring notice of appeal to be filed within thirty days). The record reflects that on September 25, a secretary from the office of the Gorostietas' attorney called the clerk at the First District Court in Logan regarding the filing of the notice of appeal. The clerk told the secretary that she would accept the notice of appeal by fax so that the secretary did not have to travel from Salt Lake City to Logan, as long as the original notice and filing fees were mailed forthwith. The record reflects that faxed copies of the notice of appeal and filing fees were sent and received on September 25, 1998. The original notice of appeal was then received and filed on September 28, and the fees were received on October 2.
Rule 3(f) of the Utah Rules of Appellate Procedure provides:
At the time of filing any notice of separate, joint, or cross appeal in a civil case, the party taking the appeal shall pay to the clerk of the trial court the filing fee established by law. The clerk of the trial court shall not accept a notice of appeal unless the filing fee is paid. (Emphasis added.)
However, rule 3(a) provides:
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, except as otherwise provided by law, by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal or other sanctions short of dismissal, as well as the award of attorney fees. (Emphasis added.)
It is clear from the plain language of rule 3(a) that the timely filing of the notice of appeal is the only jurisdictional step. The plain language of rule 3(a) makes it clear that "the timely payment of fees on an appeal from the district court to this Court is no longer jurisdictional." State v. Johnson, 700 P.2d 1125, 1129 n.1 (Utah 1985).
The clerk accepted the faxed copy of the notice of appeal as a timely filed notice of appeal. Parkinson argues that rule 3(f) indicates that a notice of appeal is not filed until the filing fees are paid. The plain language of rule 3(f) does not, however, state that the notice of appeal is not considered filed until the fees are paid. Rather, the language directs the clerk not to accept a notice of appeal unless the fees are paid. We do not address whether the filing fees were timely paid upon their being mailed with the permission of the clerk, as the Gorostietas argue, because this court has already addressed the effect that payment of fees has on our appellate jurisdiction. The clerk accepted the faxed copy of the notice of appeal as being timely filed, and therefore, we have jurisdiction to hear this matter.
II. DOCKETING STATEMENT
Parkinson also argues that the appeal should be dismissed because the docketing statement was not timely filed. Rule 9 of the Utah Rules of Appellate Procedure deals with the docketing statement, and the subsections of rule 9 that are pertinent to this issue are 9(a), 9(b), and 9(g).
Rule 9
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