Chantel J. KELSEY, Petitioner, v. The Honorable Timothy R. HANSON, Third District Court, Salt Lake County, Respondent.
No. 91091-CA.
Court of Appeals of Utah.
Sept. 23, 1991.
It is undisputed that when Guardian recorded American‘s trust deed, it failed to re-examine the status of the title, even though four months had elapsed since its previous title examination. Guardian then disbursed the loan proceeds when it should have known that American would not be in the position of first lien holder. Therefore, Guardian was negligent as a matter of law.
Thus, American is entitled to judgment against Guardian on the issue of liability. However, our review of the record demonstrates the existence of disputes of material fact on such issues as the proper measure of damages, contributory negligence, and mitigation. We remand for reconsideration of the amount of the judgment to which American is entitled.
PUNITIVE DAMAGES
American argues that Guardian‘s actions as escrow agent amounted to fraud and that punitive damages should be awarded. American also argues that Guardian assumed other duties beyond that of escrow agent and that Guardian negligently misrepresented the status of the American trust deed. On the record before us, we cannot hold that American is entitled to judgment as a matter of law on these theories.
ATTORNEY FEES
American cross appeals arguing that attorney fees were justified as a matter of law by Guardian‘s breach of its duty to perform the insurance contract with good faith and fair dealing as set forth in Beck v. Farmers Ins. Exch., 701 P.2d 795, 801-02 (Utah 1985). This argument fails because of our determination that Guardian had no duty as insurer. American also claims that attorney fees were justified as a matter of law pursuant to
We therefore reverse the summary judgment and remand for further proceedings consistent with this opinion.
BILLINGS and ORME, JJ., concur.
Colin Winchester (argued), Associate Gen. Counsel, Office of the Court Administrator, Salt Lake City, for respondent.
Before GARFF, BENCH and RUSSON, JJ. (Law & Motion).
PER CURIAM:
OPINION
This matter is before us on the petition of Chantel Kelsey for a writ to compel the entry of her divorce decree without payment of the divorce filing fee. In her attempt to obtain a divorce from her husband, petitioner alleged that her sole income of $225 per month AFDC assistance supported herself and her three children and that she did not have funds or assets to pay the divorce filing fee.
Petitioner contends that the trial court abused its discretion in refusing to accept petitioner‘s allegations of impecuniosity solely on the ground that she paid an attorney $100 to prepare the divorce decree papers. The issue presented is whether, as a matter of law, petitioner is able under
We hold that the trial court abused its discretion by relying solely upon this fact in rejecting petitioner‘s alleged impecunious status. Before reaching the conclusion under
As for petitioner‘s claim for attorney fees under the Civil Rights Act, we decline to make such award. Petitioner claims that the trial court‘s assessment of her financial status denied her access to the courts and due process of law. Thus, she contends, she is entitled to an award of attorney fees under
The trial court merely erred in its factual determination of petitioner‘s financial condition, a determination the court was required to make in applying
Accordingly, we vacate the trial court‘s order and remand for a redetermination of petitioner‘s ability to pay under
GARFF and BENCH, JJ., concur.
RUSSON, Judge (dissenting):
I dissent. I would stand by the judgment of the trial court and deny Ms. Kelsey‘s petition for a writ of mandamus.
When an attorney learns that a new client, who is seeking a divorce, is indigent, that attorney has three responsible courses of action: (1) to represent the client, advance court costs (filing fees), bill the client for such advanced costs as well as attorney fees, and then seek an award, on the client‘s behalf, of such costs and attorney fees from the adverse party; (2) to represent the client pro bono and seek waiver of court costs; or (3) to refer the client to the Legal Aid Society,1 where, upon acceptance, legal services will be rendered free of charge and waiver of the filing fee routinely obtained.
Mr. Barnard did none of these things. Instead, he charged Ms. Kelsey, his indigent client, a fee of $100, prepared a divorce complaint in her name pro se, and prepared an affidavit of impecuniosity for her to sign, attesting to her poverty and seeking waiver of the filing fee. He then left Ms. Kelsey to fend for herself at the hearing in district court on the divorce and on the petition to waive the filing fee.
In Gresham v. Page, 411 P.2d 251 (Okla. Crim. App. 1966), a criminal defendant sought a writ of mandamus to compel the trial court to furnish him with a copy of his case at public expense. He filed an affida-
With reference to the third matter of fact, and conclusion of law, provided by the trial court: that petitioner failed to meet the burden of proof that he was an indigent at the time of trial, is consistent with the evidence before the court. This court takes notice of the fact that Tulsa County provides competent legal counsel in the Public Defender‘s office. At the time of trial, petitioner could have asked for the assistance of that office; but instead, he chose to employ counsel of his own choosing. This action is within his own power of discretion.... but it likewise seems to indicate that at that time petitioner was not a pauper.
Id. at 254-55.
Judge Hanson found that since Ms. Kelsey had retained the services of a private attorney and paid him an attorney fee, she was not impecunious for purposes of waiving payment of the filing fee. He stated:
Well, I guess the thing that concerns me, Ms. Kelsey, is that Mr. Barnard apparently doesn‘t have any difficulty getting paid for his fees, but then he prepares, after he takes his fees, a document for you to tell me that you don‘t have any money to pay the filing fees for the court.
Furthermore, he stated:
Well, I‘m going to go ahead and hear this matter, Ms. Kelsey, but in all good conscience to the taxpayers of this community, I cannot approve this Affidavit of Impecuniosity, and the reason I cannot—
I have no problem approving the waiving of filing fees for persons who legitimately do not have the funds to pay. But the thing that concerns me is that you do apparently have the funds to pay an attorney, or at least pay his paralegal, whatever Mr. Barnard is doing over there. But if you‘re truly impecunious, he ought to be handling this matter without costs.
And:
While you may be impecunious, if you‘re not impecunious for paying attorney‘s fees, you‘re not going to be impecunious for paying filing fees. It seems to me if the taxpayers are going to bear the burden for all of this, Mr. Barnard ought to be able to do this for nothing, or at the very least, reduce his fees by the filing fees.
Even Ms. Kelsey thought it strange that she had to pay a fee to the attorney, but the filing fee could be waived:
JUDGE: [B]ut if you‘re truly impecunious, Mr. [Barnard] ought to be handling this matter without [attorney fees].
KELSEY: That‘s what I thought. Sometimes you don‘t get that consideration.2
When means have been provided for indigent parties to obtain competent legal assistance without incurring legal fees,3 and thereby to obtain waiver of filing fees, I find it unconscionable that an attorney, instead of referring the indigent to “free” legal services, would “partially” take the case, charge a legal fee, and then send the client on her way with the complaint4 and an affidavit of impecuniosity to seek waiver of the filing fee.5
Judge Hanson complied with the above. He questioned Ms. Kelsey and, upon learning that she had retained Mr. Barnard and paid him attorney fees of “approximately” $100, reached “the opinion” that if Ms. Kelsey could afford to pay Mr. Barnard, she could afford to pay the filing fee.
The actions of Judge Hanson were justified. I don‘t believe the legislature ever intended that filing fees should be waived where a party has retained a private attorney and has paid legal fees to that attorney.
The overwhelming majority of people seeking divorce are struggling financially as they attempt to support two households on the same amount of money with which they previously supported one. Most could file similar affidavits. If only a portion of the 7,000 divorces filed each year in Salt Lake County successfully sought a waiver of filing fees, the cost to the taxpayers could be hundreds of thousands of dollars annually.
Unfortunately, Ms. Kelsey is caught in the middle.6 Although I am sympathetic to her plight, I cannot condone the practice of court costs “taking a back seat” to attorney fees. Here, the principle involved is crucial. Therefore, this court should stand by the decision of Judge Hanson and deny the petition for a writ of mandamus.
Notes
On such oath or affirmation being filed with any justice court judge or clerk of any court, the justice court judge or clerk, as the case may be, shall at once file any complaint or papers on appeal and do any and all things necessary or proper to be done as promptly as if the litigant had fully paid all the regular fees. The constable or sheriff shall at once promptly serve any and all summonses, writs, process and subpoenas, and all papers necessary or proper in the prosecution or defense of such cause, for such poor person as if all the necessary fees and costs had been fully paid; provided, that in cases where an impecunious affidavit is filed the judge at the time of hearing the cause shall question the person who filed the affidavit as to his ability to pay and in the event that the judge is of the opinion that the person is reasonably able to pay the costs he shall direct that judgment or decree be not entered in favor of that person until the costs are paid. The order may be later cancelled upon petition if the facts warrant such cancellation.
Legal Aid Society of Salt Lake provides indigent representation to the Salt Lake County community. Other similar organizations provide legal services to indigents in other cities and counties in the State.