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Last updated on Wednesday, April 4, 2012
(CROTHERSVILLE) - A federal court ruling Friday means the town of Crothersville and its water and sewer utilities violated a couple’s constitutional right to due process when their utilities were cut off for nonpayment in April 2010.
That ruling from U.S. District Judge Sarah Evans Barker also means other town residents may have had their rights violated, attorney Steve Shane of Newport, Ky., said Monday.
Shane and attorney Stephen R. Felson of Cincinnati are representing Melanie J. Wayt and Walter G. Wayt against the town and a Crothersville man selling them a Howard Street residence on contract.
The ruling on a number of summary judgment requests also means the Wayts' lawsuit can proceed to trial.
"We are attacking the town's policy of terminating service without any due process," Shane said after filing the lawsuit in U.S. District Court on July 26, 2010.
The town has been represented by its insurer's attorney, R. Jeffrey Lowe of New Albany. Lowe could not be reached for comment.
The lawsuit stems from a decision by the town to terminate water service to the Wayts' home at 412 W. Howard St. In the lawsuit, Melanie Wayt contends she was out of town at the time, and her father was taking care of her affairs locally.
Shane said Monday he and his clients are awaiting word from the court on whether the case will be certified as a class-action lawsuit.
"According to the testimony of (town employee Alisa) Sweazy, there were 243 shutoffs during the two-year period that we defined our class," Shane said. "That is more than a sufficient number to satisfy a class of persons."
That means others could join the lawsuit concerning the violation of utility customers' rights to due process.
"We are very hopeful that the court will agree to certify because the town conceded that there was nothing done differently in terminating service with anyone else than what was done with the named plaintiffs," Shane said.
The Wayts were buying a piece of property on Howard Street on a land contract from Amos Plaster when their utilities were cut off for nonpayment in April 2010, according to the lawsuit. Plaster later attempted to evict the family by filing a foreclosure action in state court.
The Wayts' suit alleges that Plaster's refusal to allow reconnection of water was in aid of his foreclosure action, which violates Indiana law, Shane said.
The family maintained the property while living temporarily in South Bend in northern Indiana and were unaware the utilities had been disconnected.
Although the Wayts have since moved from Crothersville, the family continues to maintain ownership of the Howard Street property under a land contract, Shane said.
Plaster has filed a foreclosure lawsuit on the property. That case is pending in local court, Shane said. He is not involved in that civil action.
According to the lawsuit, Melanie Wayt said she went to town hall on July 6, 2010, to pay the required $75 security deposit and was told by Sweazy that water service could not be restored without the consent of Plaster.
At the time, Sweazy told Melanie Wayt that Plaster had instructed her that he did not wish any water to be supplied to the Wayts' residence, according to the lawsuit. Plaster, Sweazy, Crothersville Utilities and Crothersville Water Department were named as defendants in the lawsuit, although Sweazy has been removed because of immunity attached to a public employee carrying out their job.
Melanie Wayt said on July 8 she returned to town hall with a real estate contract for the property, but Sweazy still declined to restore water service to the home.
The town did finally restore water once Shane and Felson requested a temporary restraining order to have it restored. That motion was withdrawn once Lowe agreed to advise the town to restore water service to the Wayts.
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