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Show PAGE TWENTY-TW- O '. MONDAY, FEBRUARY 11, 1974 THE DAILY RECORD In the Supreme Court of the State of Utah Abuse of Process Liability Remanded X On the basis of Lawrence Crease, Plaintiff and Respondent, v. Jte and mahexou. ginning hereof : false arrest, false imprisonment of process against Except for the later added cause of abuseand the cause, have fallen by the waythe other parties have been eliminated, No. 13245 Potion. FILED side.2. Pleasant Grove City, a municipal corporation, C. O. Newman and W. G. Klemm. is whether The question that remains and is confronted on this appeal defendant there is any reasonable basis to sustain a cause of action against law to be kept of Klemm for abuse of process. There arc certain propositions of in mind as bearing on that problem. A cause of action for abuse process is " Defendants and Appellant. CROCKETT. JuBtice: L. M. Cummings, Clerk concerned with the initiation quite different in character from those which are of a proceeding against the victim, and which have been eliminated from this action. 3 Therefore, whether there was an abuse of process is to be determined as an issue independent from the rightness or wrongness of the prior steps in the proceeding. 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 $b0 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 I960, 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 rue mm was tii: 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 o 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 rocivor them. There was no response and nothing was done until the following April, 1963.' Councilman Klemm again talked to Mr. Ivins, who itiduat&d boino doubts about the propriety of a criminal complaint, and exprrsseci the prefrrability of a civil action. Never theless, Mr. Ivins testified thu Ik. (iniparnd the criminal complaint charging Mr. Crease with violating the oniiivancc. Mr. Klemm again dn cussed the matter with Mr. Crease. The latter reaffirmed his refusal to pay the bill; and both of them expresBC-- the thought that perhaps there should be a tost case. The next day Klemm signed the complaint before the justice of the It is to be conceded that even though an action may have been properly initiated, and even though the process (the commitment) was lawfully issued, if it was used for an ulterior and purpose for. which it was not intended, that This is so because could be found to be actionable as an abuse of process. the essence of that cause of action is a perversion of the process to accomplish some improper purpose, such as coxnpeling its victim to do something which 5 he would not otherwise be legally obliged to do. On the other hand if it is used That court was without authority to change the sentence, see Combs v. Turner, 25 Utah 2d 397, 483 P. 2d 437. 2. Reminiscent of this expression: A case arrayed in feathers ample enoughs for a turkey, but stripped to its essentials, found to be no more than a sparrow, Cf. Statement of Bleckley C.J. in Leekens v. Ford, 87 Ga. 541. 3. See I Am'. Jur. 2d 251; and annotation at 14 A. L. R. 2d 322, Sec. 17; as distinguished from false imprisonment, which is the unlawful detention of a person, see Mullins v. Sanders, 189 Va. 624, 54 S.E.2dll6. 4. American Credit Bureau Inc. v. Bel-AiInteriors, 11 Ariz. app. 168, 462 P. 2d 861; Barquis v. Merchants Collection Ass'n. of Okland Inc. 101 Cal. Rptr. 745, 496 P. 2d 817. 5. I Am. Jur 2d 252; 14 A. L.R. 2d 268. 1. re No. 13245 - Trial and intended purpose, the mere fact that it has some other collateral effect does not constitute abuse of process. 6 As specifically applicable here, this is so even though it may incidentally and indirectly exert pressure for the collection of a debt. a consideration of this case in the light of what has been said above. Proceeding upon the premise that inasmuch as no appeal was taken, the judgment against Mr. Crease must be regarded as valid, it follows that there was nothing unlawful or improper about the issuance of a commitsentence. It is ment thereon to carry out the original judgment and 20-dto be recognized that the defendant Klemm had manifest an ardent interest in the enforcement of the ordinance, and in the collection of the delinquency We revert to ay was held on October 30, 1962, at which Judge Newman found Mr. Crease guilty and rendered thifc 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. and it therelore It is significant that no appeal was taken from that ruling, stands unas sailed 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 re- - ' mained 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, and he was released. from Mr. Crease. However, the important facts bearing on the issue here are that there is no showing whatsoever that Councilman Klemm personally had anything to do with the improper later addition of another 30 days to the sentence, or with the issuance of the commitment. We therefore fail to perceive any basis in the evidence to justify imposing liability on him for the claimed abuse of process. Our conclusion that the judgment cannot be sustained for the reasons hereinabove set forth makes it unnecessary and undesirable to discuss the frailties which exist in the proof of damages, and other errors assigned. Remanded with directions to enter judgment for the defendant, to defendant (appellant).. WE CONCUR: E. R. Callister, v. Kenneth Glen Roberts, Defendant and Appellant. Jr., Chief Justice F. Henri Henriod, Justice A. H. Ellett, Justice R. L. Tuckett, Justice 6. Baird v. Aluminum Seal Co. , 250 F.2d 595. 7. I Am. Jur. 2d p. 262 Sec. 15 Abuse of Process. Robbery Conviction Affirmed The State of Utah, Plaintiff and Respondent, 2- for its proper d peace. -- - continued to a point outside the building where the r2 No. 13481 FILED February 5, 1974 L. M. Cummings, Clerk TUCKETT. Justice: The defendant was found guilty of the crime of robbery on August 30, 1973, and thereafter sentenced to serve an indeterminate term in the Utah State Prison. From the conviction and sentence the defendant has appealed to this court. It is the defendant's contention in this court that the court below erred in refusing to submit to the jury the proposition of whether or not the defendant might have been guilty of an attempt to commit robbery. On May 29, 1973, the defendant walked into the Holiday Motel in Lake Salt City where he pointed a gun at Arthur Miyacaki and demanded the money. Miyacaki placed the money from the cash register on a table The defendant picked up the money and turned away. Miyacaki grappled with the defendant and a struggle ensued during which the defendant freed himself and proceeded toward the doorway. Miyacaki again caught up with the defendant at or near the doorway and a further struggle took place which droppedi:rnbedyUed- rob. the i. without merit. Evidence in this case show.'a sufficient the money to show that the crime of robbery had been completed at he time the defendant was apprehended. tTd The conviction of the defendant is affirmed. WE CONCUR: E. R. Callister, Jr., Chief Justice F. Henri Henriod, Justice A. H. Ellett, Justice J. Allan Crockett, Justice - Costs |