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Brigham Young University Law SchoolBYU Law Digital Commons
Utah Court of Appeals Briefs
1987
Provo City v. Joan Patton : Brief of AppellantUtah Court of Appeals
Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca1
Part of the Law Commons
Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.Robert D. West; Provo City Attorney; attorneys for respondent.Robert Macri; attorney for appellant.
This Brief of Appellant is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court ofAppeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available athttp://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] withquestions or feedback.
Recommended CitationBrief of Appellant, Provo City Corporation v. Patton, No. 870519 (Utah Court of Appeals, 1987).https://digitalcommons.law.byu.edu/byu_ca1/719
[AH ICUMENT F If
BRIEF
ICKET NO. n-os-iq -ct "UTAH COURT OF APPEALS
PROVO CITY,
Plaintiff and Respondent
vs.
JOAN PATTON, Defendant and Appellant
BRIEF OF APPEB1PT
87-0519 CA Priority classification i4B
Appeal from a Conviction for Nuisance, in the Eighth Circuit Court of Utah, i|n Provo Department, E. Patrick Mc Guire,
Judge•
Robert West, Esq. Provo city Attorney 559 West Center Street Provo, Utah 84601 Tel. 375-1822
Robert Mac South I : Lake| 364-3fl
Attbrney
230 Sal Tel
it Esq. J00 East j.ty, Utah 84102
Aonellant
IN THE UTAH COURT OF APPEALS
PROVO CITYr
Plaintiff and Respondent
vs.
JOAN PATTON, Defendant and Appellant
BRIEF OF APPELLANT
87-0519 CA Priority Classification 14B
Appeal from a Conviction for Nuisance, in ths Eighth Circuit Court of Utah, ih Provo Department, E. Patrick Mc Guire,
Judge.
Robert West, Esq. Provo City Attorney 559 West Center Street Provo, Utah 84601 Tel. 375-1822
Robert Macri, Esq. 230 South 1000 East Salt} Lake City, Utah 84102 Tel 364-3018 Attorney for Appellant
Table of Contents
Table of Authorities 1 Court of Appeals Authority 1 Nature of proceedings 1 Summary of the Argument 2 Detail of the Argument 2 Statement of the Issues 3 Determinative Constitutional Provisions 3 Statement of the Instant Case 3 Conclusion of Argument 4 Certificate of Mailing 4 Attachments 5 et seq.
Table of Authorities
Amendment XIV, U.S. Constitution
Holguin vs. Elephant Butte Irrigation District 2 575 P2d 88, 91 NM 398
Wheat vs. Safeway Stores, Inc. 2 404 P2d 317 146 Mont. 105
Gresham State Bank vs. 0 and K Constr. Co. 4 372 P2d 187, 231 Or. 106
Court of Appeals Authority, triis case
This Court has authority to hear this case pursuant to 78-2a-3 (Utah
Code Annotated, 1953.
Nature of Proceedings
Early in 1985 Provo City authorities began to take exception at
storaqe procedures of goods and materials at a home located at 1067 North
750 West in Provo, Utah. A stoning report was made v̂ hich spoke of the Bill
Patton residence at that address. Defendant/Appellant Joan Patton had auit-
claimed said property to Bill Patton on January 5, 1983. In November, 1984
Provo City filed a suit alleging nuisance at the subject property naminq
Joan Patton and Defendant Does. In March, 1985 an order requiring Defendant
to abate the nuisance issued, and a hearing on costs for the City's work
was set. For this part of the proceedings, Defendant represented herself.
At the hearing on damages in September, 1986, Defendant was required to nay
Provo City $1040.00 to compensate them for the clean up (this, despite the
claims that the goods taken were valuable and that the clean-up crew only
worked one half of the time it bid.)
At this time Defendant's attorney discovered Defendant had Quit
claimed away the subject pronerty and filed a Motion to Set Aside Judaement.
The Court denied the motion but, on the economic issues, and recognizing the
financial situation of Joan Patton, commented "The Court would wish that the
parties could meet together and work out this matter on a compromise basis."
Statement of the Issues
If an untutored defendant is told by zoning authorities that she
is responsible for a property, despite the fact she had been told by this
authority her quit claim was ineffective to relieve her of responsibility
for nuisance on the property, and does not initially dispute her responsib
ility, can she be relieved of the judaement when the true state of property
ownership is established, and the actual title owner, who is known by the
Plaintiff in its private state action suit,is not even connected as an
indispensible narty? Did the judgement against her provide due process?
Determinative Constitutional Provisions
AMENDMENT XIV
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridae the privileges or immunities of citizens of the United States; nor shall any State deprice any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction equal protection of the laws.
Statement of the Instant Case
This case was brought to clean up a residence owned by Mr. Bill Datton,
husband of Joan Patton who has only rights of a tenant-at-will since Mr. Bill
Patton owns the residence in auestion strictlv in his own name. He was known
to be owner ,„ The nuisance is clear! y the use of the property i n that
any nuisances on the subject property in the future." (Order, October 1, 1 985)
He wris not amended into the lawsuit, Although a lafp pfforf after original
1 u I I M e n 11 > n l I 11 11 in in i»111II 11 in in ii ii i in in 111 i s f ii 11 s i i c • i * e s h I u I , I ,l-1 * c t t \ 11 JI i 1 UTI e in t « . II i.- : )
When the investigating agency, City of Provo, realized who was the owner of
property in question on wh i ch the lall 1 eged nui sance was being committed,
they had a due process obligation to i: lotify all interested persons, li I
Attachment 3,, this Court wi 1 1 see that the City knew that Bill Patton
was the owner. Attachment 4 is a reduced version of the certi fied a\ lit-
J-*. t-ru execu+^H +-wo vears prio*- +* *v>*» investigation, ii I the Court's file.
av:-*-: * - - »* '-it-vil subject property,, may not be
neia s I ; -' - - sei ice • of c ::::] ear ai i i
convinc it\c s4.̂ v. ;n, :.;,oL ».m . - SOOIISA. IC r-ei oOn, and the so 1 e i: e -
sponsible person.
b e to A J 111 LI ifa A r»\ uine 111. •
Courts have held that the failure to inin an indispensible party
i s a jurisdictional defect. See, e.g., Holcruin vs« Elephant Butte Irrig
ation D istr :i c t 5 3 5 P2 1 88 98 and Wheat ^ rs. Safeway Stores, Inc. ' •'
404 P2d 317 3 46 I" "!< >nt , 1 05 • . - • • • •
Here we do not have* fort feasors with "joint and several liabil ity.
\ 7e I: la 3 a :i n ii sai ice 2omp] a:i nil J 's I : • • •
f l le against the owner, wh - : =: identified in the investigation report,.
but a g a i n s t a t e n a n t - a t - w : - ~"~ -"-** r ^-:d^r + i d d r ^ " , zr>A ^.Aes
i 101 si icc e s s f"i i JI ] y a 11: emp t f , • •
never-named John Does.
The Plaintiff has failed to prove that this Defendant committed the
nuisance, but holds her responsible for the costs of abatement despite the
fact she proves she quit-claimed any interest in the property away two years
prior to the nuisance being investigated. The Wheat case cited above stands
for the proposition that the matter should not even have proceeded- in the
absence of the indispensible party. As pointed out, the Court in its Order
included as Attachment 1 restrains Joan Patton from doing something she by
law, as a tenant-at-will, has no control over. This denies due process and
equal protection to her.
Additionally, this Court has equitable power to adjust liability
of all parties before it. See, for example, Gresham State Bank vs, 0, and
K, Const, Co., 372 P2d 187 231 Or. 106. At very least, this case must be
remanded to the Circuit Court for determination of liability which may exist
in other parties, and the relative Liability of this Appellant,
Conclusion of Argument
The judaement against Appellant holding her solely liable for a nuisance
where the actual property owner or any other responsible party is not joined
must fail jurisdictionally, on grounds of denial of due process and equal pro-
tecion of the law, and for equitable reasons relating to Joan Patton1s status
with the land, and economically.
Dated this 8th April, 1988, / / / /)
Robert Macri, Attorney
Certificate of Mailing
Four copies of foregoinq to PvObert West, Esq. Provo City Attorney 559 West Center Street Provo, Utah 84601 sent postpaid this 8th April,1988.
Attachments
1, Order of October lr 1985 2» Respondent's Motion to Amend in Indispensible party 3. Memorandum regarding investigation I "f >i ii t claim of Januarys, 1 983
5.
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2M
IJAMES BRADY Attorneys For PROVO PITY P O. Box 1849
Provo. Unli (j4bOJ
Telephone 375 1822 E x t . 331 T 1 ?
IN THE EIGHTH CIRCUIT COURT, STATE OF UTAH
III II IIM'I I I I 1 Ml M I Ml MI
— o o o O o o o —
PROVO CITY CORPORATION, /
I ILILI t i l t ()H)IR
JOAN PATTON and : C i v i l N o . 8 4 Ci/ Ibi JOHN DOES 1 t h r o u g h 5 ,
l)et andanl —-oooOooo—-
ThU) mallet taut bcLun Hit i.uil MI lilt ^lid Jay ul uepteiiibti U b
on Plaintiff's request for hearinq. Both parties wece present and presented
testimony and/or evidence. After having reviewed the Complaint and thp evide
presented/ the Court finds the defendant faii«*d to file the appropriate
pleadings and 13 without a merit snous defense; accordingly the Court awards
judgment t J the Plaintiff as follows.
IT n HEREBY ADJUDGED, ORDERED AN I UU HLLU, thil Ihe Lttendanti
1 Shall remove all rubish/ cetike, including hit rut limited to:
'lothiny 1 n^t cloth material/ palets, boxes, containers 1 Jnims, crates/
cans, fiod, food products/ appliances, household goods, fixtui J 1 fencing,
wire baskets, tires/ inoperable automobiles and motorcycles, moperibie bicycles
and other instruments of transportation/ inoperable swing sets* etc-* and h
abate all nuisances, tr in the real property located at ir abnit 10( 7 N r t-h
750 West, Prcvo, Utah, and to do so before the 24th day ot October, 198b.
2. Is hereby restrained and enjoined from causing or permitting an
nuisances on the subject property in the future.
ShouJd the defendant fail to -omply with the ̂ bove Order- thp Plaintitt
is hereby ordered fi forthwith remove and abate the nuisances existing on the
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kaid property on the 24th day of October/ 1985. The Plaintiff is hereby
authorized and ordered to remove all objects referred to above which the
defendant fails to remove in the time permitted. Plaintiff shall deposit
all items removed in the nearest sanitation landfill and shall not be required
|to determine the market value of the items removed.
If it becomes necessary for Plaintiff to remove cubish and useless
boods to abate a nuisance at defendant's residence* at the Plaintiff's expense/
Plaintiff shall be awarded judgment of the reasonable cost of such actions/
including costs and attorney's fees/ the amount to be determined at a later
pearing/ both parties to be notified by mail of the date of the hearing.
DATED this 1st day of October, 1985.
BY THE COUftT:
Honorable B^Patr ick T?Idkrir£, Judge
Attachment 2
Rober t D. West Assistant Provo City Attorney 359 West Center Provo, Utah 84064 Telephone: (801) 375-1822 ex. 331
EIGHTH CIRCUIT COURT, STATE OF UTAH
UTAH COUNTY, PROVO DEPARTMENT
PROVO CITY, a municipal corporation,
Plaintiff,
vs
JOAN PATTON AND JOHN DOES 1 THROUGH 5,
Defendant(s)
PLAINTIFF'S MOTION TO AMEND COMPLAINT AND ORDER
Case No. 84 CV 2353
COMES NOW the plaintiff, Provo City Corporation, by and
through its attorney, Robert West, and moves to amend the
Complaint and the Court's Order of October 1, 1985, to include
William David Patton as a defendant in the above-captioned
matter. This motion is based on Rule 15 (a) and required by Rule
9 (a) (2) of the Utah Rules of Civil Procedure and is supported
by the accompanying Points and Authorities in support of this
Motion.
DATED this ~ZC "AX.. day ^jt^f^y^ri.
Robert D. West Assistant City Attorney
1
Attachment 3
Memorandum
TO: OM:
RE:
DATE: March l2f i985 James Brady
Jim Bryan and Julie Beck
Bill Patton residence at 1067 Nbrth 750 West
On March lf 1985 an inspection was made of the Patton residence at 1067 North 750 West. Representatives of the Provo Fire Dept., and the Provo City Zoning Division visited this site at 10:23 a-m. The following Zoning Violations were noted:
Section 24.102.080 Abandoned, wrecked or junk vehicles
a. 7 inoperative motorcycles
b. 4 inoperative vehicles .
Section 24.102.080 (c) Trash storage (See photographs)
Section 24.108.030 Off Street Parking a. Required off street parking being used for storage
Section 24.20-150 (d) Fence Height a. Fence in front yard is four (4) feet in height and
constructed of opaque materials. Ordinance limits height to three (3) feet.
UNITY DEVELOPMENT DEPARTMENT
J/OL^E BECK, Zoning Enforcement
R«»cnfwd at ^OO^aem Ot
Mail rax
QUIT-CLAIM DEED *
JOAN J. PATTOH 0! Prooo QUITCLAIM tr,
Utah
WILLIAM DAVID PATTO*
Utaa,
rf 1067 North 750 Vaat, Proro, Ota* 16606 $1.00 and othor valuable coe*14aratlea - - - - - - -
tract of lead i Otah afUtafc
e a - e i DOLLARS*
r§
Lot 9, llork 2, Plat "A\ Daolaa tl vara14a fllla* Praaa. 0tah. the official plat thereof mttHm la tha office mi te» eecottear, Utah.
ALSO:
Tha South 65 feat of Lot 10. Block 2, Plat "A", Davlee U**rel4a filla. Pr Utah, according to tha official alat thereof oa Ilia la tha off lea of tha lecorder, Utah County, Otah.
ta
tr.
Subject to reetrlctloae, eaeaaaate, cc •lefble by laepectloa or otheralee.
ta aeal r t fhta of af race***
STATE OF U T A H 1
Comcpal *** J
On the *th waaanlfarfaad e i fh ty thrae
Jomn J. Pattoa
dafal A.IXaa»
y±\^**tai£]** torrfoiiMi
U ciiatl^iMifc expires * ! « « | < W # i
oSdy ackaowboVtomtflMt • !» ea*jcu«eo!*i
Nowy Public.
vbdjr t o r n tint 'ha earcutedtfc*
Addrear. Provo, ctah