Case No. 20070905-CA.Utah Court of Appeals.
Filed February 5, 2009. Not For Official Publication
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Appeal from the Second District, Ogden Department, 070902281 The Honorable Parley R. Baldwin.
Shari D. Harper, Huntsville, Appellant Pro Se.
Kenneth W. Burton, Ogden, and Amy W. Dutson, Clearfield, for Appellees.
Before Judges Thorne, Bench, and McHugh.
MEMORANDUM DECISION
BENCH, Judge:
Plaintiff Shari D. Harper appeals the dismissal of her lawsuit against Defendants Kenneth Burton; Amy Dutson; Ryan Bushell; and Cragun, Burton Bushell, PC, arguing that the court clerk’s filing of her complaint constituted an acceptance of her affidavit of impecuniosity that the trial court was not permitted to revoke. Harper further argues that once her complaint was filed, the trial court was statutorily required to adjudicate the merits of her case before it could make any determination of her ability to pay. We affirm because Harper’s arguments are without merit.
Harper first claims that the trial court revoked the clerk’s acceptance of her affidavit and that such a revocation is not permitted by statute. Contrary to Harper’s assertions, the statutes governing affidavits of impecuniosity actually mandate that trial courts independently review such affidavits. See Utah Code Ann. § 78A-2-304(1) (2008) (stating that when affidavits of impecuniosity are filed, “the court shall review the affidavit and make an independent determination based on the information
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provided whether court costs and fees should be waived entirely or in part”).[1] Harper provides no legal authority or analysis to support her theory that the trial court was not permitted to assess the filing fee after fully reviewing her affidavit and finding it deficient. We do not agree with her suggestion that a clerk’s acceptance of the affidavit at the time of filing the complaint binds the court because the statute leaves the ultimate determination in the hands of the trial judge.See id. § 78A-2-304(3) (stating that it is for the judge to decide whether a litigant has the ability to pay).
Harper also argues that the trial court violated Utah Code section 78A-2-304 by failing to conduct “a hearing of the merits of the case before further assessment of the affidavit.” Insofar as Harper argues that the trial court is barred from reviewing an affidavit of impecuniosity received by the clerk until after the merits of the case are heard, we disagree. The statute allows a trial court to make an independent determination on a litigant’s ability to pay, seeid. § 78A-2-304(1), and grants the court flexibility in scheduling opportunities to further address issues regarding a litigant’s ability to pay court costs, see id. § 78A-2-304(3) (stating that judges are to question affiants “at the time of hearing the cause as to [their] ability to pay”).[2]
Harper attempts to make two additional arguments: (1) that the trial court violated the “Doctrine of Separation of Powers”, and (2) that the trial court allowed Defendants to file “forged papers.” Harper’s argument regarding the separation of powers is merely a recitation of her other arguments challenging the trial court’s ruling. Because we hold that the trial court did not violate the statutory provisions cited to by Harper, we necessarily disagree with this argument and her conclusion that the trial court’s ruling was an attempt to usurp power from Utah’s legislature.
Regarding the second argument, Harper claims that she is the rightful owner of the name under which Defendants have been operating their law firm, specifically alleging that she registered the name in question with the proper state authorities before Defendants were able to do so. Harper asked the trial court to strike as fraudulent all documents Defendants filed under the contested name. The trial court correctly ruled that
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this issue had no bearing on the case below. Irrespective of the veracity of Harper’s ownership claim, that issue is immaterial to the instant appeal.
For the foregoing reasons, we affirm the trial court’s decision.
We Concur: William A. Thorne Jr., Associate Presiding Judge, Carolyn B. McHugh, Judge