El Rancho Enterprises, Inc. v. Murray City Corp.

HALL, Justice:

This appeal arises out of a dismissal of a suit for overcharges on water and sewer services and for discrimination in failing to provide usual city services.

The basis for the dismissal by the trial court was the notice requirement of Section 10-7-77, U.C.A.1953 (1975 Supp.) which requires claims of the nature we are concerned with here to be presented by a formal notice of claim to the municipality within one year after the last item of such account or claim accrued.

Plaintiffs maintain: (1) that Section 63-30-5, U.C.A.1953, as amended in 1975 (Utah Governmental Immunity Act) waives immunity for contractual claims and expressly exempts such claims from the notice provisions and bond requirements of the Act, and that defendant had informal notice and actually made a settlement offer with one plaintiff prior to commencement of the lawsuit and; (2) that their claims were equitable in nature and governmental immunity and lack of notice are not available as defenses.

Initially, plaintiffs assigned as error the trial court’s refusal to consider defendant as estopped to assert failure to give notice of claim by reason of its settlement offer, however, such was specifically abandoned at the time of argument.

The second assignment of error appears to be well taken and dispositive of the appeal.

The common law exception to governmental immunity pertaining to equitable claims has long been recognized in this jurisdiction. In Auerbach v. Salt Lake County1 this court quoted Mr. Justice Field in Argenti v. City of San Francisco, 16 Cal. 256, in affirming the trial court’s judgment on a contractual claim where the notice requirements of statute were not met:

“If the city obtain the money of another by mistake, or without authority of law, it is her duty to refund it — not from any contract entered into by her on the subject, but from the general obligation to do justice which binds all persons, whether natural or artificial. If the city obtain other property which does not belong to her, it is her duty to restore it; or if used by her, to render an equivalent to *780the true owner, from the like general obligation. In these cases she does not, in fact, make any promise on the subject, but the law, which always intends justice, implies one; and her liability thus arising is said to be a liability on an implied contract . . . .”

In Wall v. Salt Lake City2 this court again held that an equitable claim may be brought without the necessity of first presenting a claim for damages. The basic premise of Wall was reaffirmed in Aagard v. Juab County3 wherein this court held that a cause of action to quiet title and for injunctive relief might be maintained without having presented a claim.

The foregoing cases have in no way been eroded by the passage of time or the enactment of the Utah Governmental Immunity Act, in fact, Greenhalgh v. Payson City4 reasons that since no common law exceptions were treated by the Act, nor abolished from it, they remain as viable exceptions thereto.

In this case the plaintiffs’ claims are based on equitable principles and are exempt froth notice requirements since they are composed of alleged overcharges, made by mistake or fraud and without authority of law. They further claim the misapplication of utility ordinances and consequent unjust enrichment, arbitrary, capricious and discriminatory treatment,. praying for in-junctive relief, all of which sounds in equity. The fact that a claim is made for trespass is not fatal, and only incidental, since by far the majority of the claims are based on equitable considerations.

The judgment of dismissal is vacated for further proceedings consistent herewith. No costs awarded.

CROCKETT, MAUGHAN and WILKINS, JJ., concur.

. 23 Utah 103, 63 P. 907 (1901).

. 50 Utah 593, 168 P. 766 (1917).

. 75 Utah 6, 281 P. 728 (1929).

. Utah, 530 P.2d 799 (1975).