By Myrna Trauntvein
Times-News Correspondent
Mona City is being sued by O'Sullivan Investments.
Jason Ivins said that the Bank of American Fork was
also named in the suit.
"Our attorney, Jim Dunn, filed a lawsuit against the
city and the bank in Fourth District Court in Juab County,"
Ivins told Mona City Council members on Tuesday.
"You forced our hand," said Ivins.
He said the city's decision to find the O'Sullivan
Investments bond in default two weeks ago made the lawsuit
inevitable.
The decision was made by members of the Mona City
Council on Sept. 21 at the conclusion of special meeting
which began at 8 p.m. at city hall and was called for the
purpose of discussing the possibility of finding the
developer's bond in default.
The bond on the Pheasant Ridge Subdivision was found
to be in default by unanimous vote of the council.
"Upon a declaration by the city council that the
developer is in default, the city shall provide written
notice of such default to the obligor, whereupon the obligor
shall, within ten days of receipt of said written
notification from the city, release all funds held by
obligor to city and the city shall apply said funds to the
cost of construction or repair of the required
improvements."
Ivins said that his company decided to file the suit
to keep the bank from sending the bond money to the city. He
said they were charging, in part, that the bond was called
in so that Ryan Lynn, the mayor's son, could be paid $25,000
owed him by Lyn Bonner, developer.
Harry Newell, council member, said the money collected
in the default could be used to pay for the necessary
improvements which had still not been built by the
developer.
"Ryan Lynn has now been paid so the notice of lis
pendens can be removed," said Ivins.
He also said that another lawsuit had been cleared and
an amount for payment had been arrived at.
"It has been settled," said Ivins.
Ivins objected to the fact that the city council will
not allow building to occur in the subdivision.
Liens should be lifted now that payments have been
made and the law suits have been cleared. He said that R.
Lynn did not, in fact, have a lawsuit but a lis pendens.
Basically, under the laws of most states an individual
is only supposed to be able to file a lien if they have a
judgment against the owner, or have done work for the owner
that qualifies that person to file a "mechanic's lien."
After someone is sued, until judgment, the person may
file a "notice of lis pendens" stating the claim amount and
the style and number of the case filed to pursue remedy for
that claim.
But the notice of lis pendens has the same effect as a
lien, in that if someone gets a judgment, they may execute
on property owned by the defendant as of the date the
lawsuit is filed, not just what he owns on the date the
judgment is awarded.
For something like a bank, a filed notice of lis
pendens can be a powerful tool to induce them to settle,
because it can adversely affect their credit and other
ratings.
Mayor Bryce Lynn said the council was well within
their rights to declare the bond in default because the
subdivision had not been completed in a timely manner.
In fact, he said, the city would be within their
rights to call the entire subdivision null and void because
the work bonded for was not completed within the year agreed
to and allowed by ordinance.
"In our own bond document, it says that you have one
year to complete the work," said Lynn.
"The thing I have a problem with is that the council
will not issue a building permit for the subdivision," said
Ivins.
The building permits, according to ordinance, are not
ever issued until the basic subdivision work is completed.
The infrastructure must be in and the inspections must be
passed before building permits are allowed, said Lynn.
"I need a written list," said Ivins, "of things that
still need to be completed. Give me a break, I'm trying to
help me help the city."
Council member, Gordon Anderson asked Ivins how many
lists were needed by his development company before the work
would be done.
"Ever since April, when I took a seat on this council,
I have seen nothing but dis-cooperation and weaseling from
your company."
Harry Newell, council member, said the council had
been lenient with the O'Sullivan Investment development. For
example, they could have demanded that the roads in the
subdivision be re-done. They had, instead, just asked that
part of the bond be placed in reserve.
Part of the problem in having the subdivision
completed on time and to standard, said Lynn, was that
O'Sullivan didn't have the proper engineering done to begin
with. Had they done so, the problems encountered in passing
inspections may not have occurred.
Lyla Spencer, city recorder, had been served with the
lawsuit on Sept. 24, as the city's representative.
The basic steps in a formal lawsuit filed with a court
include: filing of a complaint by the plaintiff; service of
the complaint on all defendants; answer or demurrer by the
defendant (a demurrer is a special pleading that basically
says even if all of the allegations raised in the complaint
are true, the plaintiff is not entitled to a remedy through
a court proceeding); cross-complaint or counterclaim filed
and served by a defendant.
"Discovery" of the facts (informal and formal
interrogatories, depositions, disclosure of experts,
requests for admissions, etc.); motions to the court by any
party to the lawsuit (either to restrict the extent of
discovery, compel compliance with discovery requests or to
resolve issues based upon evidence revealed during
discovery).
Pretrial proceedings such as case management
conferences, settlement conferences, referral to mediation
or arbitration, preliminary motions to allow or exclude
evidence at trial, pretrial briefs (statements of the facts
and applicable law covering the issues to be presented at
trial) and jury instructions (if required).
Trial by judge or jury, including jury selection (if
required), opening statements, presentation of witnesses and
evidence through examination and cross-examination, closing
statements, and jury instructions by the judge (if
required).
Rendering of a judgment by the judge or jury; post
trial motions such as motion for mistrial or motion for
reconsideration; appeal of the judgment.
The steps can take many twists and turns as the court
proceeding evolves.
While a lawsuit can start as out as a very simple
matter, it can get complex very quickly. In addition to
these basic steps, there are many other steps which may be
possible depending upon the particular circumstances.
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