Weber Co. v. Odgen Trece
321 P.3d 1067
Utah2013Background
- Weber County sought a permanent injunction against Ogden Trece, a criminal street gang, under Utah public nuisance law.
- The injunction prohibits Trece members from associating, threatening witnesses, possessing firearms, and violating a citywide curfew within a 25-square-mile Safety Zone in Ogden.
- Trece was sued as an unincorporated association and service by publication was authorized after personal service on some members.
- Appellants and Petitioners challenged service, due process, and, if successful, requested attorney fees; the district court granted a permanent injunction after hearings.
- The court held that the purported appellants were not parties to the action, but addressed the petition for extraordinary writ by several served individuals; the injunction was later vacated for insufficient service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Trece is an amenable unincorporated association and subject to suit | Weber County contends Trece transacts business under a common name and is amenable to suit. | Petitioners argue Trece is not lawfully formed to be sued as an unincorporated association. | Trece is amenable to suit as an unincorporated association. |
| Whether service on Trece by publication satisfied due process | County asserts publication was proper because Trece’s officers could not be identified. | Trece argues service by publication was improper due to failure to show reasonable diligence to identify an officer or managing agent. | Service by publication was not warranted; not reasonably diligent to identify a managing agent. |
| Whether improper service voids the injunction and district court jurisdiction | County contends injunction stands if service were valid on Trece as an entity. | Trece contends lack of valid service deprives the court of jurisdiction over the named defendant. | Injunction void for lack of proper service; district court lacked jurisdiction. |
| Whether the appeal is proper given appellants were not parties | Weber County frames the issue as improper appellate vehicle because appellants were not proper parties. | Appellants argue merits notwithstanding their nonparty status. | We lack appellate jurisdiction over the appeal because the purported appellants were not parties. |
| Whether attorney fees can be awarded for a permanently vacated injunction | Petitioners seek attorney fees under Rule 65A/Thayn-like rationale for wrongful injunction. | Rule 65A governs costs for temporary relief, not a permanent injunction; none warranted here. | Attorney fees denied. |
Key Cases Cited
- Utah Down Syndrome Found., Inc. v. Utah Down Syndrome Ass’n, 2012 UT 86 (Utah Supreme Court, 2012) (nonparty cannot appeal; extraordinary writ appropriate)
- Brigham Young Univ. v. Tremco Consultants, Inc., 2005 UT 19 (Utah Supreme Court, 2005) (nonparties cannot appeal the court order)
- Jackson Constr. Co. v. Marrs, 2004 UT 89 (Utah Supreme Court, 2004) (reasonableness/diligence requirement for service by publication)
- Downey State Bank v. Major-Blakeney Corp., 545 P.2d 507 (Utah, 1976) (diligence and factual basis required for service by publication)
- Beard v. White, Green & Addison Assocs., Inc., 336 P.2d 125 (Utah, 1959) (service on mere members insufficient; must be officer/agent)