Crease v. Pleasant Grove City, 13245

• Decision Date: 07 February 1974
• Docket Number: No. 13245,13245
• Parties: d 451 Lawrence CREASE, Plaintiff and Respondent, v. PLEASANT GROVE CITY, a municipal corporation, et al., Defendants and Appellants.
• Court: Utah Supreme Court

Page 888

519 P.2d 888

30 Utah 2d 451

Lawrence CREASE, Plaintiff and Respondent, v. PLEASANT GROVE CITY, a municipal corporation, et al.,

Defendants and Appellants.

No. 13245.

Supreme Court of Utah.

Feb. 7, 1974.

Noall T. Wootton of Wootton & Wootton, American Fork, for appellants.

A. Dean Jeffs of Jeffs & Jeffs, Provo, for respondent.

CROCKETT, Justice:

Lawrence Crease sued Pleasant Grove City, its Justice of the Peace, C. O. Newman and its City Councilman, W. G. Klemm, alleging false arrest, false imprisonment, malicious prosecution, and, later added, abuse of process. This all arose out of his prosecution, conviction and imprisonment for violation of the city's sewer connection ordinance. On appropriate motions, not material here, the parties and the issues have all been eliminated except against Councilman Klemm on the issue of abuse of criminal process. Upon it a jury rendered a verdict against him in the amounts of: $295 for loss of earnings, $3,000 damages to his business, and $1,705 punitive damages.

Defendant Klemm appeals, contending that there is no legal basis nor evidence to support a finding that he was guilty of abuse of process, or the damages awarded.

The city of Pleasant Grove had installed a sewer system which was to be financed by a bond issue, which in turn was to be paid off by the sewer charges to residents. For this purpose a duly adopted ordinance imposed a connection fee of $50 for each residence; and $2.50 per month service charge. It further appears that although Mr. Crease and some other residents did not actually connect to the sewer system, so long as they paid the charges, the city did not insist on their actual connection to the system. Plaintiff Crease paid the $50 connecting fee, and the $2.50 monthly service charge until December 1960, when the city council raised the monthly rate to $3. He then informed the city treasurer that inasmuch as he was not connected nor receiving the sewer service, he would not pay.

Defendant Klemm was the city councilman in charge of the sewer and water department, among whose duties was the collection of the charges. He consulted with the city attorney, H. Grant Ivins, as to means of enforcing the ordinance and collecting Mr. Crease's delinquency. After this consultation, Mr. Ivins wrote a letter to Crease in October of 1961 instructing him that if he did not pay the back charges and connect to the sewer, legal action would be commenced to recover them. There was no response and nothing was done until the following April, 1962. Councilman Klemm again talked to Mr. Ivins, who indicated some doubts about the propriety of a criminal complaint, and expressed the preferability of a civil action. Nevertheless, Mr. Ivins testified that he prepared the criminal complaint charging Mr. Crease with violating the ordinance. Mr. Kiemm again discussed the matter with Mr. Crease. The latter reaffirmed his refusal to pay the bill; and both of them expressed the thought that perhaps there should be a test case. The next day Klemm signed the complaint before the justice of the peace.

Trial was held on October 30, 1962, at which Judge Newman found Mr. Crease guilty and rendered this judgment:

That the defendant, Lawrence Crease, pay the sum of $100.00 and serve twenty (20) days in the Pleasant Grove City Jail; $50.00 of such fine to be suspended together with the jail sentence if, within 90 days from this date, the defendant pays the sum of $48.00 and within said 90 day period makes the proper connection with the Pleasant Grove sewer.

It is significant that no appeal was taken from that ruling, and it therefore stands unassailed as a valid judgment.

After the expiration of the 90 days, Mr. Crease having failed to comply with the judgment, Judge Newman issued a commitment. But in the judgment there was inserted in his handwriting an added 30 days. Upon that commitment Mr. Crease was incarcerated on August 9, 1962. Pursuant to the filing of a petition in habeas corpus, he was released four days later, on August 13, pending a hearing thereon. Nothing further was done until the following June, 1963. At that time Mayor Fordam of Pleasant Grove told Mr. Crease that the entire matter would be dismissed if he would hook on to the sewer and pay the back charges. Mr. Crease stated he was willing to hook on, but still refused to pay the back charges. A few days after this conversation, Mr. Crease was, on June 28, 1963, again incarcerated to finish serving his sentence. He remained in jail for 18 days, until July 16, 1963, when, in habeas corpus proceedings, the district court properly found that the addition of 30 days to his original sentence was invalid, ¹ and he was released.

On the basis of the facts recited above Mr. Crease brought this suit against the city, the justice of the peace, the mayor, and City Councilman Klemm, attempting to assert the various causes of action as stated at the beginning hereof: false arrest, false imprisonment and malicious prosecution. Except for the...