Weber Co. v. Odgen Trece , 2013 UT 62 ( 2013 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2013 UT 62
IN THE
SUPREME COURT OF THE STATE OF UTAH
WEBER COUNTY,
Plaintiff and Appellee,
v.
OGDEN TRECE aka CENTRO CITY LOCOS; ROMAN HERNANDEZ;
CHASE AESCHLIMANN; JESSE AESCHILMANN; SAMUEL PARSONS;
JAIME GOMEZ; and WILLIE RODRIGUEZ; et al.,
Defendants and Appellants.
No. 20120852
Filed October 18, 2013
Second District, Ogden Dep’t
The Honorable Ernest W. Jones
No. 100906446
Attorneys:
Christopher F. Allred, Dee W. Smith, Branden B. Miles,
Jeffrey G. Thomson, Ogden, for appellee
Randall W. Richards, Ogden, David C. Reymann, Lashel Shaw,
Michael S. Anderson, John Mejia, Salt Lake City, for appellants
Roman Hernandez, Chase Aeschlimann, and Jesse Aeschlimann
Michael P. Studebaker, Ogden, for appellants Samuel Parsons,
Jaime Gomez, and Willie Rodriguez
JUSTICE PARRISH authored the opinion of the Court,
in which CHIEF JUSTICE DURRANT,
ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE LEE,
and JUDGE ROTH joined.
Having recused herself, JUSTICE DURHAM does not participate
herein; Court of Appeals JUDGE STEPHEN L. ROTH sat.
JUSTICE PARRISH, opinion of the Court:
INTRODUCTION
¶1 We are presented with two consolidated cases. The first is
a direct appeal (Appeal) from an injunction entered against Ogden
Trece (Trece), a criminal street gang. The second is a petition for
WEBER CO. v. OGDEN TRECE
Opinion of the Court
extraordinary writ (Petition) brought by three alleged Trece
members who were served with the injunction.
¶2 Weber County (County) obtained a permanent injunction
against Trece and its members under a public nuisance theory
pursuant to section 76-10-806 of the Utah Code, which empowers a
county attorney “to institute an action in the name of the county . . .
to abate a public nuisance.” The statutory definition of a public
nuisance includes a criminal street gang. See id. §§ 78B-6-1101(2)(d),
78B-6-1107(1)(d); see also id. § 76-9-902(1) (defining a “[c]riminal
street gang”).
¶3 The injunction prohibits Trece members who have been
served with a copy of it from associating with one another;
confronting, intimidating, annoying, harassing, threatening,
challenging, provoking, or assaulting any person known to be a
witness or victim of any activity of Trece; possessing a firearm in
public or any place accessible to the public; or violating an 11 p.m.
to 5 a.m. curfew. It applies to a twenty-five square-mile “Safety
Zone” encompassing nearly the entire city of Ogden. The injunction
contains both a hardship provision and an opt-out provision.
¶4 Appellants and Petitioners argue that (1) service on Trece
as an unincorporated association was improper and thus the district
court lacked jurisdiction to enter the injunction, (2) the injunction
violates procedural due process, and (3) the injunction violates
substantive due process. In the event the injunction is vacated, they
also argue that they are entitled to an award of attorney fees.
¶5 We lack appellate jurisdiction over the Appeal because the
purported appellants are not parties to the proceeding. We do,
however, have jurisdiction to consider the Petition. Although Trece
is an unincorporated association and amenable to suit, we conclude
that service on Trece was improper. The district court therefore
lacked jurisdiction to enter the injunction. We deny the request for
attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Ogden Trece is a criminal street gang that has operated for
over thirty years. It has identifying signs, symbols, tattoos, graffiti,
clothing, and hand signs. In its findings of fact and conclusions of
law granting the permanent injunction, the district court found that
members of Ogden Trece “commit crime for the purpose of
intimidating rival gang members, asserting their dominance over an
area, intimidating citizens and witnesses, and obtaining money
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through many different types of illegal activities, from selling drugs
to trafficking in stolen property.” Revenue is brought into the gang
by “criminal activity such as burglaries, thefts, robberies, drug
dealing, etc.” The day-to-day operations of the gang are directed by
senior members called “shot callers.” Less senior gang members are
“put to work” by the “shot callers,” meaning they are to “commit
criminal activity to bring recognition and money into the gang.” The
proceeds from the criminal activities are given to the “shot callers”
who “are [then] responsible for distributing money to members of
the gang when they deem necessary.”
¶7 On August 20, 2010, Weber County filed a complaint for
permanent injunction to abate a public nuisance. It brought this
action against Ogden Trece as an unincorporated association. The
County also filed an application for a restraining order, preliminary
injunction, and a request for hearing. The district court entered a
temporary restraining order that same day.
¶8 On August 24, 2010, the County personally served five
alleged Trece members: Evan Barrow, Emmanuel Montoya, Samuel
Parsons, Roman Hernandez, and Daniel Callihan. The County also
mailed process to twelve other alleged Trece members, namely:
Jamie Gomez, Michael Gutierrez, Dario Muniz, David Maes,
Nicholas Davis, Juan Saucedo, Darren Begay, Tyler Greenfield,
Daniel Salinas, Troy Rivera Jr., Alex Mercado, and Elmer Maes.
¶9 Even though it had personally served gang members, the
County sought an order allowing it to serve Trece by publication. At
a hearing on August 31, 2010, the County attorney stated, without
elaborating, “that we have adequately put the gang on notice,
however, just to make sure that that’s accomplished, we’re going to
request an order from the court to allow us to further put the gang
on notice by publication.” The attorneys and the court then turned
to other issues. Near the conclusion of the hearing, the County
attorney reminded the court of its motion, asking “would the court
authorize us to publish?” The court responded, “[y]es, I will
authorize service.”
¶10 The County followed up two days later with a written
motion requesting service by publication and a supporting affidavit.
The County argued that it was “difficult if not impossible to give the
gang ‘notice’ . . . and serve [it] under traditional methods
contemplated by [r]ule 4 of the Utah Rules of Civil Procedure.”
Specifically, the County argued that Trece “do[es] not have a
registered agent in the State of Utah or any other State,” nor any
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“known management structure, officers, directors, or like
managerial personnel [on] which to personally serve with process.”
The district court entered a written order authorizing service by
publication the following day. The County then published service
of process in the Ogden Standard Examiner and on
www.utahlegals.com.
¶11 On September 14 and 27, 2010, the district court held an
evidentiary hearing on the County’s request to convert the
temporary restraining order to a preliminary injunction. The court
heard testimony from two Ogden police officers who testified about
the criminal and nuisance activity of Trece. The district court also
heard testimony from a deputy district attorney from California who
testified as an expert on the effectiveness of gang injunctions.
Following the hearing, the district court converted the temporary
restraining order to a preliminary injunction that included all the
same prohibitions as the temporary restraining order, but also
included a “Hardship Exemption Process” and an “‘Opt Out’
Provision.”
¶12 The County then began serving the preliminary injunction
on more than three hundred alleged members of Ogden Trece.
Violation of the injunction is a class B misdemeanor punishable by
up to six months imprisonment and up to a $1,000 fine. UTAH
CODE § 76-10-807. Among those served were brothers Chase and
Jesse Aeschlimann. Upon being served, the brothers filed a motion
for a hearing to contest the constitutionality of the preliminary
injunction, noting that neither of them had been served or given
notice of the proceedings prior to the entry of the preliminary
injunction or its service upon them. But neither brother moved to
intervene in the action or request formal party status.
¶13 The district court ruled that because the gang as an entity
had been sued and the constitutional arguments had “already been
dealt with,” individuals subsequently served with the injunction did
not have a right to intervene or otherwise appear in the case or to
challenge the terms of the injunction. It reasoned that due process
had been satisfied because “[l]aw enforcement is required to serve
the injunction on gang members, thus placing them on notice of the
injunction.”
¶14 On June 11, 12, and 14, 2012, the district court held an
evidentiary hearing to consider whether to make the preliminary
injunction permanent. No one representing Trece appeared at the
hearing. However, despite the fact that none of their clients had
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moved to intervene, three attorneys representing a total of eight
individuals who had been served with the preliminary injunction
attended the hearing. All of these attorneys noted that they
represented only the individuals who had been served with the
injunction and that they did not represent Trece itself. And none of
the eight alleged members of Trece were present.
¶15 At the hearing, the district court heard evidence regarding
Trece, why the County believed it to be a criminal street gang and a
public nuisance, and how some of its members had previously been
convicted of crimes. The district court found that Ogden Trece met
the legal definition of a criminal street gang and a nuisance and that
“the provisions of the injunction are narrowly drawn and are
necessary to give . . . complete relief from [Trece’s] nuisance
activities.”
¶16 At the conclusion of the hearing, the district court entered
the permanent injunction (Injunction). The Injunction applies to the
“Safety Zone,” a twenty-five square-mile area encompassing most
of the city of Ogden. It prohibits those alleged gang members served
with it from engaging in specified conduct in the Safety Zone.
Specifically, it prohibits the alleged gang members from any
knowing association with gang members in public places or public
view. This extends to “[d]riving, standing, sitting, walking,
gathering, or appearing together with any known member of Ogden
Trece anywhere in public view or anyplace accessible to the public.”
The Injunction also prohibits gang members from intimidating
victims and witnesses. It states that Trece members are prohibited
from “[c]onfronting, intimidating, annoying, harassing, threatening,
challenging, provoking, [or] assaulting any person known to be a
witness to any activity of Ogden Trece, known to be a victim of any
activity of Ogden Trece, or known to have complained about any
activity of Ogden Trece.”
¶17 Another provision of the Injunction criminalizes possession
of firearms, “imitation” firearms, ammunition, and “illegal
weapon[s],” and prohibits alleged gang members from being in the
presence of such weapons or another person possessing them. The
Injunction imposes a curfew on alleged gang members between the
hours of 11 p.m. and 5 a.m., “with exceptions for traveling to and
from work, from any non-gang related entertainment event, school
activities, and religious services,” and “for emergencies, accidents or
other situations that require[] immediate action to prevent serious
bodily injury or loss of life.” The Injunction also prohibits alleged
gang members from damaging and defacing property through
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graffiti, using and distributing drugs and drug paraphernalia, and
consuming alcohol except in their homes or in properly licensed
establishments. It also requires that alleged gang members “obey all
laws.”
¶18 The Injunction contains an “opt-out” provision under
which an alleged gang member who has been served with it may
“either renounce gang membership or declare that he or she never
was a gang member.” This requires a “declar[ation] that he or she
has not been arrested for a ‘gang-related’ crime in the past three
years, not associated with gang members for the past three years,
and that the served person declare that he or she has not received
any new gang tattoos.”
¶19 The Injunction also contains a “hardship exemption
process” under which an individual may seek exemption from the
association and curfew provisions of the Injunction by written
application
request[ing] permission to associate only with a
named individual or named individuals at specific
times and in specific places when such association is
reasonably necessary, or permission to be in a specific
public place between 11[] p.m. and 5[] a.m. when it is
reasonably necessary to be in a particular place at a
particular time during those hours.
¶20 The County is now criminally enforcing the Injunction
against those alleged gang members who have been served with it.
Roman Hernandez, Samuel Parsons, Jamie Gomez, Willie
Rodriguez, and brothers Chase and Jesse Aeschlimann, who have all
been served with the Injunction, filed notices of appeal in the
underlying action. Roman Hernandez, Chase Aeschlimann, and
Jesse Aeschlimann also filed a petition for extraordinary writ directly
with this court challenging the Injunction. We have jurisdiction
pursuant to section 78A-3-102(2) of the Utah Code.
STANDARD OF REVIEW
¶21 “Whether this court has jurisdiction over an appeal is a
question of law that can be raised for the first time on appeal” by
either party or by the court. Navajo Nation v. State (In re Adoption of
A.B.), 2010 UT 55, ¶ 21, 245 P.3d 711; see also Kennecott Corporation v.
Utah State Tax Commission, 814 P.2d 1099, 1100 (Utah 1991). “When
this court lacks jurisdiction over an appeal, it retains only the
authority to dismiss the appeal.” In re A.B., 2010 UT 55, ¶ 21.
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¶22 The issue of whether service of process on Trece was
proper is “a question of law that we review for correctness.”
Stichting Mayflower Mountain Fonds v. Jordanelle Special Service
District, 2001 UT App 257, ¶ 7, 47 P.3d 86. Likewise, whether the
Injunction violates procedural or substantive due process are
questions of law that we review for correctness. Chen v. Stewart,
2004 UT 82, ¶ 25, 100 P.3d 1177 (“Constitutional issues, including
questions regarding due process, are questions of law that we
review for correctness.”).
ANALYSIS
I. WE LACK APPELLATE JURISDICTION OVER
THE APPEAL BECAUSE THE SO-CALLED
APPELLANTS ARE NOT PARTIES TO THE CASE
¶23 Weber County and the purported appellants spend the
entirety of their appellate briefs addressing four issues: adequacy of
service of process, procedural due process, substantive due process,
and attorney fees. But we see a more fundamental problem with this
appeal. Specifically, the so-called appellants (Roman Hernandez,
Chase Aeschlimann, Jesse Aeschlimann, Samuel Parsons, Jamie
Gomez, and Willie Rodriguez) are not parties to the action and thus
are not entitled to appeal the Injunction.
¶24 In Utah Down Syndrome Foundation, Inc. v. Utah Down
Syndrome Association, we held that we lacked appellate jurisdiction
over the case because the individual attempting to appeal was not a
party and thus did not have the right to appeal. 2012 UT 86, ¶ 1, 293
P.3d 241. We explained that the appropriate vehicle through which
he could challenge the district court’s order was a petition for
extraordinary writ. Id. ¶ 12.
¶25 In that case, the district court “issued an order and
judgment purporting to affect the interests of a nonparty,” Mr.
Gilbert. Id. ¶ 13. Mr. Gilbert never filed a motion to intervene, but
sought to appeal the judgment. Id. We held that “[b]ecause he was
never a party . . . Mr. Gilbert does not have an appeal as of right, and
his attempt to appeal was improper.” Id. We therefore concluded
that we lacked jurisdiction and were required to dismiss the case. Id.
¶ 26 In this case, the only named defendant is Ogden Trece.
The only person or entity that attempted to intervene was the
American Civil Liberties Union (ACLU). But its motion to intervene
was denied and it has not appealed that ruling. None of the so-
called appellants in this appeal were named as parties to the action
and none sought to intervene. Rather, their attorneys simply
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showed up to court hearings and were somehow allowed to be
heard, despite the fact that they were technically mere spectators.
Indeed, when entering their appearances in the hearings, the
attorneys were careful to note that they were representing individual
alleged gang members and not the gang. For example, in one
instance, Michael Studebaker introduced himself as counsel “for
Samuel Parsons, Jaime Gomez, and Willie Rodriguez and nobody
else, and no[t] the gang in itself.” Another attorney, Randall
Richards, stated, “I represent Roman Hernandez, Chase
Aeschlimann, and Jesse Aeschlimann. . . . Oh, and by the way, I do
not represent the gang, whatever that happens to be.” Michael Boyle
stated he was representing “Emmanuel Montoya, Andrew Callahan.
And again, I don’t represent Ogden Trece or Centro City Locos.”
¶27 Although Jesse Aeschlimann never actually moved to
intervene, the district court raised and then rejected the possibility
of intervention in a memorandum decision. It stated:
Jesse Aeschlimann has failed to file a motion to
intervene as required under [r]ule 24, URCP. The
[c]ourt finds Jesse Aeschlimann should not be
permitted to intervene as a matter of right or as a
permissive intervenor. The interests of Ogden Trece
are already being adequately represented by two
attorneys. Many of the issues raised by Jesse
Aeschlimann in his memorandum were addressed by
the [c]ourt in two memorandum decisions on April 4,
2011. Allowing permissive intervention for Jesse
Aeschlimann would cause undue delay and require
the [c]ourt to revisit issues already ruled on.
Permissive intervention would require the [c]ourt to
restart the litigation. . . . The [c]ourt will deny Jesse
Aeschlimann’s motion to intervene.
¶28 Since none of the so-called appellants are parties to the
case, they are not entitled to an appeal as of right. See, e.g., Utah
Down Syndrome, 2012 UT 86, ¶ 9 (stating that the appellant “as a
nonparty, is not entitled to appeal”); Brigham Young Univ. v. Tremco
Consultants, Inc., 2005 UT 19, ¶ 46, 110 P.3d 678 (noting that
“nonparties . . . cannot appeal the [court] order”). “Under our rules,
it is the service of process, the affirmative act of filing suit, or the act
of seeking to intervene as a party that subjects one to the jurisdiction
of the court and puts him on notice that he is subject to ongoing
court proceedings.” Utah Down Syndrome, 2012 UT 86, ¶ 18. Mere
notice of or appearance in proceedings is not enough. Even though
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the district court allowed the so-called appellants to be heard, they
were not named parties and never filed motions to intervene. They
were therefore not entitled to appeal and we lack appellate
jurisdiction over the appeal. Id. ¶ 12.
II. WE HAVE JURISDICTION TO CONSIDER THE
PETITION FOR EXTRAORDINARY WRIT FILED BY
ROMAN HERNANDEZ, CHASE AESCHLIMANN,
AND JESSE AESCHLIMANN
¶29 Roman Hernandez, Chase Aeschlimann, and Jesse
Aeschlimann (Petitioners) filed a petition for extraordinary writ
directly with this court. Pursuant to the Utah Constitution, we have
“original jurisdiction to issue all extraordinary writs.” UTAH CONST.
art. VIII, § 3. This is the proper vehicle by which nonparties to a
lawsuit may challenge a district court’s order. Brigham Young Univ.
v. Tremco Consultants, Inc., 2005 UT 19, ¶ 46 n.7, 110 P.3d 678. “[A]
petition for extraordinary writ filed with the appellate court
provides an adequate remedy in light of the appellate court’s
obligation to give due regard to principles of due process.” Utah
Down Syndrome Found., Inc. v. Utah Down Syndrome Ass’n, 2012 UT
86, ¶ 22, 293 P.3d 241. Thus, we have jurisdiction to consider their
petition and turn to the merits of their claims.
III. TRECE IS AN UNINCORPORATED ASSOCIATION
THAT IS AMENABLE TO SUIT
¶30 Petitioners first challenge the district court’s jurisdiction
over Trece, arguing that a criminal street gang is simply not
amenable to suit. Weber County brought suit against Trece as an
unincorporated association. Petitioners argue that in order for an
unincorporated association to be sued, it must exist for a lawful
purpose and must transact business under a common name. They
reason that Trece meets neither requirement because it exists for
illegal purposes and does not transact business under a common
name. The County responds that a street gang is specifically listed
as a public nuisance under Utah Code section 78B-6-1101(2)(e) and
that section 76-10-806 allows a county attorney “to institute an action
in the name of the county . . . to abate a public nuisance.” It
therefore reasons that “Utah law . . . recognizes that a criminal street
gang is a jural entity and contemplates its being amenable to a public
nuisance abatement action.” We agree with the County that Trece
is amenable to suit, but we reach that conclusion based on
alternative grounds.
¶31 We first turn to Petitioners’ argument that Trece is not
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subject to suit as an unincorporated association because “a
fundamental requirement of an unincorporated association is that it
be formed for a lawful purpose.” Petitioners rely on two cases from
other jurisdictions for this proposition. The first is People ex rel.
Reisig v. Broderick Boys, in which a California court relied on a
California statute that defined an unincorporated association as “an
unincorporated group of two or more persons joined by mutual
consent for a common lawful purpose.” 59 Cal. Rptr. 3d 64, 74 (Cal. Ct.
App. 2007) (quoting CAL. CORP. CODE § 18035, subd. (a) (internal
quotation marks omitted)). But that case is unpersuasive inasmuch
as no such statutory requirement of lawful purpose exists in Utah.
¶32 The second case on which Petitioners rely is similarly
inapposite. In Peoples Gas System, Inc. v. Acme Gas Corporation, a
Florida court stated in a footnote that an unincorporated association
is “[g]enerally ‘created and formed . . . for the accomplishment of
some lawful purpose.’” 689 So. 2d 292, 298 n.8 (Fla. Dist. Ct. App.
1997) (emphasis added) (quoting 4 FLA. JUR. 2D Associations & Clubs
§§ 1, 2 (1994)). We do not disagree with this proposition. However,
the fact that unincorporated associations are generally formed for
lawful purposes does not suggest that they may only be so.
¶33 Rule 17(d) of the Utah Rules of Civil Procedure provides
that “[w]hen two or more persons associated in any business . . . not
a corporation, transact such business under a common name, . . .
they may sue or be sued by such common name.” See also Hebertson
v. Willowcreek Plaza, 923 P.2d 1389, 1391–92 (Utah 1996). Neither the
rule nor any other provision of Utah law contains any requirement
that unincorporated associations be engaged in lawful activity before
they are amenable to suit. Thus, Trece is amenable to suit as an
unincorporated association so long as it transacts business under a
common name. Id. at 1392.
A. Trece Conducts Business
¶34 Petitioners argue that “there is no evidence in the record of
Trece transacting business” and that the County conceded that
“Ogden Trece exists only as a criminal organization.” They contend
that criminal organizations do not “transact business” but rather
commit crimes. We disagree. There is no logical reason why
business transactions and criminal activity are mutually exclusive.
¶35 In interpreting the language of a clear and unambiguous
statute or rule, “our duty is to give effect to [its] plain meaning.”
State ex rel. Z.C., 2007 UT 54, ¶ 11, 165 P.3d 1206. The caveat is that
“a court should not follow the literal language of a statute if its plain
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meaning works an absurd result.” Savage v. Utah Youth Village, 2004
UT 102, ¶ 18, 104 P.3d 1242.
¶36 “Business” is defined as “a particular occupation or
employment habitually engaged in for livelihood or gain.” BLACK’S
LAW DICTIONARY 226 (9th ed. 2009); see also id. (“By extension,
transactions or matters of a noncommercial nature .”);
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 302 (a “particular
field of endeavor,” or “an immediate task or objective”). There is
nothing in the definition requiring that the occupation or
employment be legal,1 and there are ample findings by the district
court to support the conclusion that Trece satisfies the definition. It
“obtain[s] money through many different type[s] of illegal activities,
from selling drugs to trafficking in stolen property.” The gang’s
revenue is generated through “criminal activity such as burglaries,
thefts, robberies, drug dealing, etc.” Additionally, once the money
is “earned,” it is then distributed to other gang members.
¶37 These findings by the district court were supported by
ample evidence. Testimony during the evidentiary hearing
demonstrated that Trece has a remarkably organized structure and
governance. Gang members know who the “shot callers” are in any
given area. There is a hierarchy within the gang that administers
discipline and puts out orders for “work.” It is the “shot caller’s”
responsibility to make “sure that everybody’s paid, everybody’s got
money, [and] everybody is doing good.” Most of the stolen goods
and money earned from drugs is given to the senior members, but
the individuals who steal the goods or sell the drugs keep a certain
portion. The “shot caller” keeps a portion of the profits for himself
and the remaining profit is retained for the use of the gang in order
1
See also J.M. & M.S. Browning Co. v. State Tax Comm’n, 154 P.2d
993, 996 (Utah 1945) (stating that what constitutes transacting
business must be determined within the context in which the phrase
is used); Graham v. Davis Cnty. Solid Waste Mgmt. & Energy Recovery
Special Serv. Dist., 1999 UT App 136, ¶ 11, 979 P.2d 363 (noting that
“as unincorporated associations such as social clubs, religious
organizations, environmental societies, athletic organizations,
condominium owners, lodges, stock exchanges and veterans began
to proliferate, courts recognize[d] that . . . [s]uch groups must . . .
[face] liability to suit.” (first alteration in original)(emphasis omitted)
(internal quotation marks omitted)).
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to pay for lawyers, to support families, and to pay for other general
expenses.
¶38 This evidence satisfies the requirement of rule 17(d) and
there is no need for us to depart from the plain meaning of the rule.
See Savage, 2004 UT 102, ¶ 18. There is no reason why an
unincorporated association should be immune from suit simply
because the business in which it engages is unlawful. Under
Petitioners’ proposed interpretation of the rule, a criminal
organization would be immune from suit simply because the
business it transacts is illegal. But it would be illogical to interpret
rule 17(d) in a manner that allows organizations that operate
illegally to escape suit when such organizations are exactly the kind
of enterprise on which the justice system should be brought to bear.
B. Trece Conducts Business Under a Common Name
¶39 We also conclude that Trece meets the second requirement
of rule 17(d) in that it operates under a common name. The district
court found that “Ogden Trece has, as a group, an identifying name
or identifying symbol or both.” Additionally, “Trece has identifiable
hand signs, gestures, and clothing . . . that distinguishes [it] from
other criminal street gangs.” Trece members are required to “put in
work,” meaning committing the type of criminal transactions listed
above “to bring recognition and money into the gang.” And these
findings were amply supported by evidence that was admitted
during the evidentiary hearing.
¶40 Duane Dreamer, a self-identified “shot caller” in Trece,
testified that the two main rules of the gang are to not “rank out”
and to “represent to the fullest,” which means to “always let
everybody known where you are from.” The gang very jealously
protects its own name. It goes to great lengths in order to protect its
brand. It has internal processes for induction of new members and
advancement into leadership positions. It also punishes individuals
who falsely attempt to identify themselves as gang members.
Members who are “jumped out” of the gang must cover up their
tattoos and no longer claim membership in the gang.
¶41 Trece derives its power and influence in the community
from exactly this type of “representing.” It is one of the two cardinal
rules of the gang that members represent the gang wherever they go.
This representation by the members’ clothing, the gang signs, the
tattoos, and the graffiti has the effect of making the gang almost
omnipresent in the community. Trece’s presence is felt even when
its members are not engaged in gang-related activity because they
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constantly use the name of the gang and “represent.” Indeed, the
very identity of gang members is tightly interwoven with the name
of the gang.
¶42 Based on the foregoing, we have no difficulty concluding
that Trece transacted its business under a “common name” under
rule 17(d). Because Trece (1) transacts business (2) under a common
name, it is an unincorporated association amenable to suit.
IV. TRECE WAS NOT PROPERLY SERVED WITH PROCESS
¶43 Having concluded that Trece qualifies as an
unincorporated association subject to suit, we now examine whether
Trece was properly served with process. Petitioners argue that Trece
was not properly served because rule 4(d)(1)(E) requires that service
on unincorporated associations be made upon “an officer, a
managing or general agent, or other agent authorized by
appointment or by law to receive service of process” and that no
such managing agent of Trece was served. UTAH R. CIV. P.
4(d)(1)(E). The County responds that Trece was properly served by
publication under rule 4(d)(4)(A) because the identities of Trece’s
managing agents were unknown.
¶44 “For a court to acquire jurisdiction, there must be a proper
issuance and service of summons.” Jackson Constr. Co. v. Marrs, 2004
UT 89, ¶ 10, 100 P.3d 1211. Under Utah law, a “statute or rule of
court” provides for the manner of service to be employed. Lloyd v.
Third Judicial District Court, 495 P.2d 1262, 1263 (Utah 1972).
¶45 Rule 4 of the Utah Rules of Civil Procedure contemplates
two possible ways to serve unincorporated associations such as
Trece. First, rule 4(d)(1)(E) provides that personal service may be
made on “an unincorporated association which is subject to suit
under a common name, by delivering a copy of the summons and
the complaint to an officer, a managing or general agent, or other
agent authorized by appointment or by law to receive service of
process.”
¶46 Service on a street gang like Trece is possible under rule
4(d)(1)(E) by delivering a copy of the summons and complaint to the
functional equivalent of an officer or managing or general agent of
the gang. Testimony presented to the district court indicated that
Trece has a management structure in which certain gang members
known as “shot callers” have achieved a level of status and
recognition that few gang members will ever achieve within the
gang. These shot-callers are tasked with giving orders to other
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Opinion of the Court
members. However, the County never argued that Trece’s “shot
callers” were the functional equivalent of an officer or managing or
general agent of the gang.
¶47 Five alleged gang members were personally served with
the summons and complaint. But the County never alleged that any
of the served members were the functional equivalent of an agent or
officer. And service on mere members of an unincorporated
association is inadequate under rule 4 to effectuate service on the
organization. See Beard v. White, Green & Addison Assocs., Inc. 336
P.2d 125, 126 (Utah 1959) (“Under [rule 4] the person served must be
more than a mere employee.”). As such, there was no valid service
on Trece under rule 4(d)(1)(E).
¶48 The second possible method of serving an unincorporated
association such as Trece is provided by rule 4(d)(4). It states that
“[w]here the identity or whereabouts of the person to be served are
unknown and cannot be ascertained through reasonable
diligence . . . the party seeking service of process may file a motion
supported by affidavit requesting an order allowing service by
publication.” UTAH R. CIV. P. 4(d)(4)(A). Therefore, if the County
were unable to identify an officer or a managing or general agent of
the gang after exercising reasonable diligence in attempting to do so,
the court could order service on the gang through publication.
¶49 The County argues that service on Trece by publication
was valid because the identity of the functional equivalent of an
agent or officer was unknown. But the rule requires more. The
party seeking to effectuate service through publication must exercise
reasonable diligence in attempting to identify and then personally
serve an officer or managing or general agent or his equivalent. See
Jackson Constr., 2004 UT 89, ¶ 11 (stating that “litigants may not
resort to service by publication until they have first undertaken
reasonably diligent efforts to locate the party to be served”).
¶50 We have stated that “[a] determination of reasonable
diligence . . . properly focuses on the plaintiff’s efforts to locate the
defendant.” Id. ¶ 15 (emphasis omitted). “Relevant factors may
include the number of potential defendants involved, the projected
expense of searching for them, and the number and type of sources
of available information regarding their possible whereabouts.” Id.
¶51 This reasonable diligence requirement arises from the non-
adversarial nature of motions seeking authorization to serve by
publication. By definition, a motion seeking service by publication
will be unopposed because the party to be served is necessarily
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Opinion of the Court
unavailable. Thus, the reasonable diligence requirement serves as
a check to ensure that service by publication is only authorized in
extraordinary circumstances. Such motions should be granted only
where the district court is satisfied that the requesting party has
indeed exercised reasonable diligence by undertaking specific steps
to ascertain the identity and whereabouts of the person to be served.
¶52 The County failed to meet this burden. At the August 31,
2010 hearing, the County moved for alternative service by
publication stating only that the “County’s position is that we have
adequately put the gang on notice, however, just to make sure that’s
accomplished, we’re going to request an order from the court to
allow us to further put the gang on notice by publication.” At no
time during the hearing did the County make any assertions that it
had exercised reasonable diligence in attempting to identify or serve
an officer or a managing or general agent of Trece. Yet, at the end of
the hearing, the court indicated its willingness to authorize service
by publication.
¶53 The County subsequently filed a written motion for service
by publication under rule 4(d)(4). But the written motion contained
nothing to indicate that the County had exercised reasonable
diligence in attempting to identify and serve a Trece officer or
managing or general agent or equivalent. The affidavit submitted by
the County in support of its motion asserted only that “[t]here are
approximately 485 known members of Ogden Trece that live in our
community so locating and serving each individual would be
impracticable and difficult.” It then described the steps it had
undertaken to personally serve five members of the gang and stated
that “Ogden Trece, as an unincorporated association, does not have
a known management structure, officers, directors, or like
managerial personnel for which to personally serve with process.”
¶54 The County’s affidavit did not address whether it had
diligently attempted to identify and serve Trece’s officers or
managing or general agents. Its conclusory allegation that Trece had
“no known management structure, officers, directors or like
managerial presence” was a statement reflecting only the state of the
County’s knowledge. It shed absolutely no light on what, if any,
steps the County had taken to gather more information regarding
Trece’s management structure. Moreover, that conclusory statement
was later refuted by the County’s own witness, Duane Dreamer,
who offered extensive testimony as to Trece’s structure and
organization.
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WEBER CO. v. OGDEN TRECE
Opinion of the Court
¶55 Dreamer testified that “Ogden Trece’s shot callers were
aware of the Injunction and met to discuss what to do about it.” But
the fact that Trece “shot callers” may have been aware of the
Injunction neither displaces the requirements of personal service nor
excuses the County’s failure to demonstrate that it exercised
reasonable diligence before seeking service by publication. Murdock
v. Blake, 484 P.2d 164, 167 (Utah 1971) (“Service of summons in
conformance with the mode prescribed by statute is deemed
jurisdictional, for it is service of process, not actual knowledge of the
commencement of the action, which confers jurisdiction.”).
¶ 56 The County simply relies on its bald assertion that Trece
has no known management structure. But this is uninformative
because it does not describe any steps that the County took to try
and ascertain Trece’s management structure or to identify and
personally serve the functional equivalent of an officer or a
managing or general agent. Such conclusory statements lacking any
underlying factual support are simply insufficient to justify an order
of service by publication. We have held that “such an affidavit is not
sufficient if it states mere conclusions as to diligent search and
inquiry. It must set forth facts upon which the court can base a
judgment as to whether such diligence has been exercised to meet
that requirement.” Downey State Bank v. Major-Blakeney Corp., 545
P.2d 507, 509 (Utah 1976); see also Jackson Constr., 2004 UT 89, ¶ 21 n.3
(stating that “Jackson Construction’s conclusory allegation of
diligence is insufficient to meet rule 4’s diligence requirement”).
¶57 The County did not explain why it was unable to identify
or locate the functional equivalent of an officer or a managing or
general agent, even though it has an extensive gang database with
information on 485 active gang members. This court has previously
stated that “[t]o meet the reasonable diligence requirement, a
plaintiff must take advantage of readily available sources of relevant
information” and cannot “turn[] a blind eye to the existence of other
available sources.” Jackson Const. Co., 2004 UT 89, ¶ 20. Yet the
County provided no indication as to whether its database includes
information on gang members serving as the functional equivalent
of an officer or a managing or general agent.
¶58 In its order for alternative service, the district court stated:
“Having reviewed the Motion for Alternative Service by Publication,
and heard the arguments [made by the County at the hearing], and
for Good Cause shown in its attached affidavit, IT IS HEREBY
ORDERED, that” the County shall publish service. But nothing
offered by the County in either the hearing or the affidavit
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Opinion of the Court
demonstrates that the County was reasonably diligent in attempting
to identify the functional equivalent of an officer or a managing or
general agent of Trece.
¶59 The County argues that service by publication was
necessary because there are 485 known gang members and personal
service on all members would be impracticable. This argument
misapprehends the controlling law, however, since rule 4(d) requires
a showing that it would be impracticable to personally serve an
officer or a managing or general agent. Nothing in the rule requires
personal service on all 485 individual members of the gang. And the
County’s explanation of its personal service on five members is
similarly uninformative since its service on five individual gang
members sheds no light on the County’s diligence in attempting to
identify and serve an officer or managing or general agent.
¶60 Because the County did not serve any of Trece’s officers or
managing or general agents or their functional equivalent and did
not establish a sufficient factual basis for service by publication
under rule 4, Trece was not properly served. And Trece was the
only defendant named in the lawsuit. Because the district court
lacked jurisdiction over the only named defendant, the Injunction is
void.
V. WE DECLINE TO AWARD ATTORNEY FEES
¶61 The final issue we must address is whether Petitioners are
entitled to an award of their attorney fees incurred in connection
with their petition for extraordinary writ. Petitioners submit they
are entitled to recover their attorney fees because they have been
wrongfully enjoined.
¶62 In support of their request for fees, Petitioners cite to rule
65A(c)(2) of the Utah Rules of Civil Procedure. But the language of
rule 65A does not support their request. Rule 65A speaks of costs
and fees “incurred in connection with [a] restraining order or
preliminary injunction,” not a permanent injunction like the one at
issue here. UTAH R. CIV. P. 65A(c)(2) (emphasis added).2 And even
2
See Hay v. Baumgartner, 903 N.E.2d 1044, 1048 (Ind. Ct. App.
2009) (interpreting a parallel rule and explaining that the require-
ment of security and prescription for award of costs and damages
for wrongful entry of injunction “arise[] from the expeditious
manner in which the preliminary injunctive relief is issued and to
the lack of a full hearing upon the facts”—considerations that “do
(continued...)
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WEBER CO. v. OGDEN TRECE
Opinion of the Court
in the case of a preliminary injunction, the language does not appear
to give rise to an independent right to recover fees. Rather, it simply
indicates that the amount of the security given by the party seeking
an injunction does not limit the amount of attorney fees that may be
recovered in the event that an injunction is wrongfully entered.
UTAH R. CIV. P. 65A(c)(2).3
¶63 Petitioners also cite to Green River Canal Company v. Thayn,
2003 UT 50, 84 P.3d 1134. However, like rule 65A, Thayn involved
a temporary restraining order that was later dissolved after an
evidentiary hearing on the preliminary injunction motion—not a
permanent injunction. Id. ¶ 13. Thus, the authority invoked by
Petitioners is focused on the wrongful entry of a temporary
restraining order or preliminary injunction, rather than the wrongful
entry of a permanent injunction. Petitioners have failed to articulate
any argument or cite to any authority supporting their entitlement
to an award of attorney fees when a permanent injunction is vacated.
We accordingly deny their request for fees.
CONCLUSION
¶64 Because the individuals who filed the Appeal are not
parties to the underlying lawsuit, they do not have the right to
appeal and we lack jurisdiction over the Appeal. But we do have
jurisdiction over Petitioners’ alternative petition for extraordinary
writ and vacate the Injunction due to insufficient service of process
on the only named defendant, Ogden Trece. Ogden Trece transacts
business under a common name and it is amenable to suit as an
unincorporated association. It may be served through personal
service on the functional equivalent of an officer or a managing or
general agent or by publication if the identity or whereabouts of
such an individual is unknown and cannot be ascertained through
reasonable diligence. In this case, however, service by publication
was not warranted because the County failed to demonstrate that it
had exercised reasonable diligence in attempting to identify an
officer or a managing or general agent of Trece before requesting
alternative service. The district court therefore lacked jurisdiction
over Trece and the Injunction is void.
2
(...continued)
not [exist] in the case of a permanent injunction entered following a
trial on the merits”).
3
Indeed, it appears that the right of a wrongfully enjoined party
to recover attorney fees in certain situations actually arises under the
common law. See 43A C.J.S. Injunctions § 464.
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Opinion of the Court
19