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Gorostieta v. Parkinson12/15/2000
(a) provides that a docketing statement shall be filed " ithin 21 days after a notice of appeal . . . is filed." Utah R. App. P. 9(a). Rule 9(b) states the purpose of the docketing statement:
It is used by the appellate court in assigning cases to the Supreme Court or to the Court of Appeals when both have jurisdiction, in making certifications to the Supreme Court, in classifying cases for determining the priority to be accorded them, in making summary dispositions when appropriate, and in making calendar assignments. Utah R. App. P. 9(b); see also Stuckman ex rel. Nelson v. Salt Lake City, 919 P.2d 568, 572 (Utah 1996).
Rule 9(g) provides the consequences for failure to comply:
Docketing statements which fail to comply with this rule will not be accepted. Failure to comply may result in dismissal of the appeal or the petition. Utah R. App. P. 9(g) (emphasis added).
As stated above, the trial court clerk accepted a faxed copy of the notice of appeal on September 25, 1998. Therefore, pursuant to rule 9(b), the Gorostietas had twenty-one days, until October 16, to file their docketing statement. However, the Gorostietas did not file until October 29, making the docketing statement thirteen days late.
While timely filing is necessary, the record does not reflect, nor does Parkinson allege, any problems that arose within the appellate court as a result of the untimely filing of the docketing statement. Therefore, it appears that the purpose of the docketing statement, as set forth in rule 9(b), was still served. In addition, Parkinson does not allege any prejudice suffered as a result of the Gorostietas' untimely filing of the docketing statement. Finally, the plain language of rule 9(g) indicates that dismissal for failure to timely file the docketing statement is discretionary.
Even though compliance with the Utah Rules of Appellate Procedure is critical, in view of the foregoing, we do not dismiss this appeal.
III. TESTIMONY AS TO MEDICAL EXPENSES
The Gorostietas allege that the trial court erred in not allowing Marie Gorostieta, Dalinda's mother, to testify regarding the amounts contained in the medical bills incurred as a result of Dalinda's injury . Parkinson counters that Marie Gorostieta's testimony as to the amounts charged for medical services would have been hearsay and thus inadmissible when offered for the truth of the amounts contained therein.
A. Background
In order to thoroughly understand this issue, the background of the case must be explored. The Gorostietas filed their complaint in August 1995 and within one month served Parkinson with two sets of discovery. Parkinson timely responded to all of the Gorostietas' discovery requests. However, the Gorostietas had not responded to Parkinson's discovery requests after more than two years.
In addition, the trial judge issued a pretrial order on May 30, 1997, for both parties to produce and exchange witness lists and exhibit lists no later than October 1, 1997. The Gorostietas failed to comply with this order.
Therefore, Parkinson moved for summary judgment, seeking dismissal. It was only after Parkinson's motion for summary judgment that the Gorostietas finally responded to her discovery requests. In addition, only after Parkinson moved for summary judgment did the Gorostietas serve her with notice that they would adopt her witness list. The Gorostietas failed, however, to ever produce an exhibit list.
The judge refused to grant Parkinson's motion for summary judgment but ordered that sanctions be imposed prohibiting the Gorostietas from introducing any exhibits at
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