Linebaugh v. Gibson

2020 UT App 108THE UTAH COURT OF APPEALS
SARAH LINEBAUGH,
Appellant and Cross-appellee,
v.
RUSSELL L. GIBSON, ROBERT P. GIBSON, ANDY NEGRETTE, AND
HUNTER ELDRACHER,
Appellees and Cross-appellants.
Opinion
No. 20180237-CA
Filed July 16, 2020
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 150903119
Michael N. Zundel and James A. Boevers,
Attorneys for Appellant and Cross-appellee
Bradley L. Tilt and Sara E. Bouley,
Attorneys for Appellees and Cross-appellants
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES KATE APPLEBY and DAVID N. MORTENSEN concurred.
ORME, Judge:
¶1 This case demonstrates that the old proverb to “Love your
neighbor, but don’t pull down the fence” 1 is a sound principle.
Neither part of that advice was followed in this case. Russell and
1. This German proverb reflects something of a universal
precept. See Wolfgang Mieder, The Prentice Hall Encyclopedia of
World Proverbs 346 (1986). The English version of the proverb is,
“Love your neighbor yet pull not down your hedge,” and the
Hindi version admonishes, “Love your neighbor, but do not
throw down the dividing wall.” Id.Linebaugh v. Gibson
Robert Gibson (collectively, the Gibsons), through their
contractor, Andy Negrette, removed a fence that had been in
more or less the same location for nearly sixty-four years 2 and
erected a new cement retaining wall approximately two feet
farther north. This wall was still within the Gibsons’ deeded
property line (the Gibson Property), but by the time they
removed the old fence these two feet had become part of the
backyard that appellant Sarah Linebaugh and her predecessors
in interest had used and occupied for decades.
¶2 Linebaugh appeals the trial court’s ruling, following a
bench trial, that she failed to establish all the elements of
boundary by acquiescence to the previous fence line and that the
Gibsons and Negrette 3 did not trespass on her land. Linebaugh
also challenges the court’s grant of summary judgment in favor
of the Gibsons, Negrette, and Hunter Eldracher (collectively,
Appellees) on her claim for intentional infliction of emotional
distress (IIED). 4 Appellees cross-appeal, asserting that the court
erred in declining their request for attorney fees and costs under
Utah Code section 78B-5-825(1). We reverse the court’s boundary
by acquiescence and trespass rulings and remand for a
2. This fence followed a seemingly straight boundary line along
the property owned by appellant Sarah Linebaugh and that of
the neighbor to the west, and it was in line with the fence of the
neighbor to the east before that fence jogged slightly to the north.
See Appendix.
3. When describing the actions of Negrette, we refer to the
actions he personally took along with the actions taken by his
construction crew.
4. Linebaugh also brought claims for assault and boundary by
estoppel. The trial court likewise dismissed these claims, and
Linebaugh does not appeal that ruling.
20180237-CA 2 2020 UT App 108Linebaugh v. Gibson
determination of damages. We affirm the court’s grant of
summary judgment in favor of Appellees on Linebaugh’s IIED
claim and its denial of attorney fees to Appellees.
BACKGROUND 5
The Fence
¶3 In 1951, the then-owner of the Gibson Property erected a
v-mesh fence along the northern side of the property for the
purpose of confining animals, primarily sheep and horses. This
fence was approximately two feet short of the Gibson Property’s
deeded boundary line, and it ran east to west roughly parallel to
that line. The southern boundary of Linebaugh’s property (the
Linebaugh Property) borders a large portion of the northern
deeded boundary of the Gibson Property. See Appendix.
¶4 In 1985, Russell Gibson purchased the Gibson Property,
and in 1996, he and his brothers, including Robert, 6 replaced the
old v-mesh fence with a different v-mesh fence that they
removed from the front of the Gibson Property. The trial court
5. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite
the facts consistent with that standard” and only “present
conflicting evidence to the extent necessary to clarify the issues
raised on appeal.” Kidd v. Kidd, 2014 UT App 26, n.1, 321 P.3d
200 (quotation simplified). “[W]hen reviewing a grant of
summary judgment, we recite the disputed facts in a light most
favorable to the nonmoving party.” Begaye v. Big D Constr. Corp.,
2008 UT 4, ¶ 5, 178 P.3d 343.
6. Because Robert and Russell share the same surname, we refer
to them by their first names with no disrespect intended by the
apparent informality.
20180237-CA 3 2020 UT App 108Linebaugh v. Gibson
found that “the fence was rebuilt and in some but not all spots
the middle fence posts were moved further north towards [the
Gibson Property’s] northern deeded property line.” It also found
that “[t]he fence was moved northward and pushed up against
trees and bushes, however, the end posts of the fence on both
ends of the fence remained unchanged.”
¶5 The reason for this repair/rebuild was the deteriorating
condition of the fence and the need to prevent dogs from
escaping the property. Russell testified that they moved
“[p]robably ninety percent of [the fence].” When asked whether
rebuilding the fence would “disturb the earth so that your
neighbor would see that [it] had [been] moved,” Russell
conceded that it would not have been obvious, after earlier
stating that they “weren’t making a major project.” The court
also found that “[Linebaugh’s] predecessor in interest that
owned the [Linebaugh Property] when the fence was rebuilt and
moved, testified there was a V-mesh fence when they purchased
the property, but they did not think it had been moved.” The
court ultimately found that the “fence line, as constructed [in
1951], running east and west, was on ‘approximately’ the same
east/west fence line occupied by the [1996] V-Mesh Fence.”
¶6 The court found that from 1951 until 2015, “none of the
predecessors in interest to [the Linebaugh Property] ever had
any discussions with anyone about the boundaries of their
property” and that “[i]t [was] undisputed, a fence was built in
1951 . . . to contain sheep and horses.” The court also found that
“[t]he occupants of the Gibson Property never used any of the
property north of the V-Mesh Fence [from 1976 to 2015],” while
Linebaugh and her predecessors “used the entirety of the
property between their home and the V-Mesh Fence as their
backyard.”
¶7 Following a bench trial, the court ruled against
Linebaugh, determining that she “fail[ed] to establish the
required elements of boundary by . . . acquiescence by clear and
20180237-CA 4 2020 UT App 108Linebaugh v. Gibson
convincing evidence on the fourth element required, as the
period for at least twenty years has not been shown.” The court
also ruled that because the fence was built for the purpose of
animal containment rather than to demarcate a boundary,
Linebaugh could not prove the third element, mutual
acquiescence.
IIED 7
¶8 On April 23, 2015, the Gibsons and Negrette were near the
v-mesh fence and having a discussion about removing it and
building a new cement retaining wall approximately
two-and-a-half feet north of the fence. During this discussion,
Linebaugh approached them, and they told her of their plans.
She informed them that she was opposed to the fence being torn
down and a wall being built into her backyard. Linebaugh
attempted to discuss the wall in more detail with Russell, who
was the only one of the three she knew, but Robert would not let
her, telling her, “Don’t talk to Russ, he is too sick, he can’t deal
with this” and that he, Robert, was in charge of the project.
Linebaugh asked for Russell’s phone number, but Robert refused
to provide it and instead gave her his own number.
¶9 Later that same day, Linebaugh called Robert and told
him that she had consulted an attorney and did not believe that
they had the right to build a new wall north of the v-mesh fence
line as this area was legally her backyard. According to
7. Because we ultimately agree with the trial court that
Linebaugh’s IIED claim fails as a matter of law, we will assume
for purposes of the opinion that the facts recited by Linebaugh in
support of her claim are true, just as the trial court did below.
We note that Appellees dispute many of the facts as stated by
Linebaugh, but because we affirm the court’s grant of summary
judgment in Appellees’ favor on this claim, we need not
highlight or attempt to resolve the disputed facts.
20180237-CA 5 2020 UT App 108Linebaugh v. Gibson
Linebaugh, Robert “was yelling incoherently” during the call
and told her that “it would cost her all of her money if she sued”
because Russell was a millionaire. Linebaugh later placed a
letter, dictated by her attorney father, in Russell’s mailbox,
which informed the Gibsons that they had “no . . . right to any
portion of [her] property north of the fence that currently
separates [their properties].”
¶10 A few days later, Linebaugh and her father delivered a
copy of the letter to Negrette in front of the Gibson Property and
discussed the boundary dispute with him. That evening, Robert
went to Linebaugh’s front door seeking the name and phone
number of her attorney and demanding that she stop interfering
with his contractor. Linebaugh claimed that, during this
interaction, Robert said, “[I’m] going to take you to court if you
do not stop threatening my contractor.” He also said he would
stop work only if a court ordered him to do so and told her, “I
am going to wipe that smile off your face, bitch.” A few minutes
after Robert left, he asked via text message for the spelling of
Linebaugh’s father’s surname and, after receiving it, texted back,
“Thanks. See you in the morning. :).” About an hour after this
exchange, Linebaugh received three text messages from an
unknown number that stated, “When you fuck with a crazy
person you must realize that they could fuck you back 5 times
harder”; “War has a way of removing the smile from peoples
faces for 20 years or more”; and “War is really bad when you
bring it to your own home.”
¶11 Two days later, Linebaugh received additional text
messages from the same unidentified number stating, “Strike
one cunt you missed yours today but I didnt lol lol lol I love a
good game” and “Ps porch lights wont help.” Finally, the next
day Linebaugh received the last text message from the number.
It said, “Good night sweet cheeks hope you have the company
all night sweet dreams lol.”
20180237-CA 6 2020 UT App 108Linebaugh v. Gibson
¶12 During construction of the wall, which proceeded despite
Linebaugh’s protests, she took video and photographs of the
construction. During the course of her documentation efforts,
Eldracher, the Gibsons’ nephew, told Linebaugh that her
attempts to stop the project were “truly pathetic.” During this
interaction, Eldracher did not cross over to Linebaugh’s side of
the old v-mesh fence line.
¶13 Linebaugh claimed: “[Appellees’] statements to me and
the body language of Robert and [Eldracher] toward me was
intimidating and demeaning and made me feel extremely
helpless and fearful for my safety,” which “made me cry,”
“shak[e],” “afraid,” “worried,” and unable to “sleep for six
days.” 8 Linebaugh also stated that she did not seek a temporary
restraining order from the court “out of fear that I would incite
even more violent and abusive behaviors from [Appellees]
against me, or people I love, or my pets.”
¶14 Appellees moved for summary judgment on Linebaugh’s
IIED claim. The court granted the motion, relying on a stipulated
order reciting, among other things, that prior to Appellees’
alleged conduct, Linebaugh had been treated by medical
professionals “for various physical, mental, and/or psychological
8. While it is clear from the record that Negrette’s conduct
toward Linebaugh was at all times appropriate and civil,
Linebaugh still initially brought the IIED claim against the
Gibsons, Eldracher, and Negrette. Linebaugh eventually moved
to dismiss this claim against Negrette, but the trial court denied
her motion as moot because it had granted summary judgment
in favor of all Appellees. Thus, while there was no uncivil
conduct by Negrette, for convenience we refer collectively to the
complained-of behavior supporting Linebaugh’s IIED claim as
attributable to Appellees as a whole, while noting that Negrette’s
conduct was appropriate.
20180237-CA 7 2020 UT App 108Linebaugh v. Gibson
claims and issues.” 9 The order also included the stipulation that
after Appellees’ alleged conduct, “[Linebaugh] continued to be
seen, evaluated, and otherwise treated from time to time by
various Medical Experts [for the same issues].” The order further
outlined that “[Linebaugh] did not see, report to, or receive
evaluations or treatments from, any Medical Experts any more
frequently after the events [at issue].” Finally, the parties
9. Linebaugh takes issue with the trial court’s use of the
stipulated order in its summary judgment ruling, specifically its
statement that “[Linebaugh] admitted, and this Court has
already ordered, . . . that any distress [Linebaugh] claims to have
experienced, no matter how severe, was not ‘in any way due to
the events and/or occurrences that allegedly are the subject of
this case.’” Linebaugh claims that “[i]t is not fair for the district
court to recast and misquote [her] stipulation, as it did, as a basis
for its ruling and judgment” because “[t]he only fair reading of
[her] stipulation is that her medical history was not going to be
part of the trial of her claims.” We disagree. The stipulated order
stated, “Each and all of the following [facts] are hereby entered
as findings of fact in this case, which may and shall be adopted
and otherwise incorporated into each, any, and every ruling(s) of
any type, nature, or description whatsoever which the Court
may hereinafter render upon the merits of this case.”
Linebaugh’s protest of the court’s use of this order is also
unavailing because, during her deposition, she stated that she
did not “start[] any new medications” or have the dosages of her
existing prescriptions altered as a result of Appellees’ conduct
and had not been “treated by any health care providers for
anything relating to this case.” Thus, Linebaugh clearly
stipulated, and also stated in her deposition, that she did not
seek further treatment and experienced no exacerbating
problems with her previous medical conditions as a result of the
claimed emotional distress. The court therefore properly used
these admissions in its ruling.
20180237-CA 8 2020 UT App 108Linebaugh v. Gibson
stipulated that Linebaugh’s treatments did not change after
Appellees’ alleged conduct, that she did not mention any of the
alleged conduct to her physicians, and that she did not seek
additional treatment as a result of the alleged conduct. The court
also noted that “[Linebaugh] admitted that she did not leave her
several journalist jobs, nor even work any less, due to or relating
to anything alleged in this case.” Ultimately, based on these
facts, the court granted summary judgment in favor of Appellees
on the IIED claim, stating, “Even assuming the truth of the
alleged conduct, and further, that such rose to the level of
‘extreme and outrageous,’ [Linebaugh’s] claim still fails because
her admissions show as a matter of law she has not suffered the
requisite severe emotional distress.”
Trespass
¶15 In preparation for construction of the wall, the Gibsons
removed the v-mesh fence and cut down a part of Linebaugh’s
lilac bush that had been touching the fence. Linebaugh called the
police, who responded but did not issue a citation.
¶16 Prior to the removal of the v-mesh fence, a planting bed
had been established on the Linebaugh Property up to the fence,
with shrubbery and garden borders along with decorative stones
at the base of the fence. Once construction began, Negrette
moved the stones farther north, removed a bush with a backhoe,
and removed and transplanted other shrubs to locations of his
own choosing within the planting bed. The court also found that
one of the transplanted bushes had been moved a “few feet to
the northeast.” Linebaugh also video-recorded the construction
crew walking in the planting bed, pulling on her lilac bush, and
walking on her grass in the process.
¶17 Approximately two weeks before the Gibsons informed
Linebaugh of their intent to remove the v-mesh fence, Linebaugh
hired a landscaper to work on her yard. She paid $1,060 for these
services and estimated that twenty percent, or $212, of the
20180237-CA 9 2020 UT App 108Linebaugh v. Gibson
landscaper’s work was performed in the area of the planting bed
that went up to the v-mesh fence line and was ruined in the
course of the wall’s construction. She also claimed
approximately $100 for damage done to her lilac bush and other
shrubbery. 10
¶18 Following a bench trial, the court again ruled against
Linebaugh, finding that “there has not been a trespass by [the
Gibsons and Negrette] on the portion of the property
[Linebaugh] asserted as her own due to boundary by
acquiescence.” It also found that “the cutting and trimming of
trees and plants which came through the fence . . . before the
fence was taken down for the construction of the cement wall
does not constitute a trespass under the law as this vegetation
intruded upon [the Gibson P]roperty.” Finally, it ruled that
Negrette “may have entered onto [Linebaugh’s] deeded land by
an inch or two, however, such action was de minimis and caused
no damage to [Linebaugh].” The court also denied Appellees’
motion for attorney fees, finding that Linebaugh did not bring
her claims in bad faith.
¶19 Linebaugh appeals and Appellees cross-appeal.
ISSUES AND STANDARDS OF REVIEW
¶20 Linebaugh raises three issues that merit our
consideration. 11 First, she asserts that the trial court erred in
10. At trial, Linebaugh testified that although she initially sought
removal of the wall, she now wanted the wall to remain. She also
testified that she intended to build a privacy fence on top of it.
11. Linebaugh raises two additional issues. First, she asserts the
trial court erred “when it found that [her] conduct was morally
and economically equivalent to the Gibsons’ trespasses . . . even
(continued…)
20180237-CA 10 2020 UT App 108Linebaugh v. Gibson
rejecting her boundary by acquiescence claim. “We review the
trial court’s conclusions of law on this issue for correctness,
according the trial court no particular deference.” RHN Corp. v.
Veibell, 2004 UT 60, ¶ 22, 96 P.3d 935 (quotation simplified). But
“we will not reverse the findings of fact of a trial court sitting
without a jury unless they are clearly erroneous.” Id. (quotation
simplified).
¶21 Second, Linebaugh contends that the trial court “erred in
finding only a de minimis trespass of ‘an inch or two’ during
Gibsons’ construction.” “This issue raises questions of law
pertaining to the tort of trespass,” which we review “for
correctness.” Carter v. Done, 2012 UT App 72, ¶ 7, 276 P.3d 1127.
See Purkey v. Roberts, 2012 UT App 241, ¶ 11, 285 P.3d 1242.
(“Whether the trial court applied the proper legal standard for
trespass is an issue of law, which we review for correctness.”).
¶22 Third, Linebaugh argues that the trial court erred in
dismissing her claim for IIED. “We review a district court’s
decision to grant summary judgment for correctness, granting no
deference to the district court’s conclusions.” Gillmor v. Summit
County, 2010 UT 69, ¶ 16, 246 P.3d 102 (quotation simplified).
(…continued)
though no counter-claim was made in the pleadings for
trespass.” Second, she argues that “the district court erred in
failing to recognize that Utah law does not condone the Gibsons’
attempts to resolve th[e] boundary dispute through physical
aggression, threats and intimidation.” We have considered these
issues and, in the context of this case, conclude that they are
without merit and decline to discuss them further. See State v.
Carter, 776 P.2d 886, 888 (Utah 1989) (“[I]t is a maxim of
appellate review that the nature and extent of an opinion
rendered by an appellate court is largely discretionary with that
court.”).
20180237-CA 11 2020 UT App 108Linebaugh v. Gibson
¶23 Appellees cross-appeal, arguing that the trial court erred
in declining to award them attorney fees and costs, because
“[Linebaugh’s] claims all were ‘without merit and not brought or
asserted in good faith’ under Utah Code [section]
78B-5-825(1).” 12 “An award of fees under this provision requires
12. Additionally, Appellees ask us to sanction Linebaugh
pursuant to rule 33 of the Utah Rules of Appellate Procedure.
They assert that Linebaugh’s claim in her reply brief that
Appellees made misrepresentations in their opening brief are
“meritless and sanctionable.” Linebaugh likewise seeks rule 33
sanctions against Appellees, arguing that their “principal brief
repeatedly misrepresents both the facts of this case, and the
district court’s findings regarding those facts” and that their
“cross appeal from the district court’s denial of their motion for
award of attorney fees . . . is frivolous . . . [as they] set forth no
evidence, as opposed to argument, contesting the district court’s
finding that [Linebaugh] did not bring any of her claims in ‘bad
faith.’” “Under rule 33, we have the authority to award attorney
fees and costs as a sanction for a frivolous appeal. But the
imposition of such a sanction is a serious matter and only to be
used in egregious cases.” Redd v. Hill, 2013 UT 35, ¶ 28, 304 P.3d
861 (quotation simplified). After a review of the record and all
the asserted misrepresentations made by both sides, it is clear
that no party is in a position to cast the first stone. Both sides
attempted to twist and manipulate the trial court’s findings and
rulings to suit their arguments while attacking the other side for
doing the same. We decline to impose sanctions, on essentially
the same rationale as the football rule on offsetting personal
fouls.
We cannot help but wonder, however, if much of the back
and forth between counsel on appeal, which has consumed not
only our energies but also the resources of Linebaugh and
Appellees, could have been avoided had counsel for both sides
more assiduously adhered to the first rule of the Utah Standards
(continued…)
20180237-CA 12 2020 UT App 108Linebaugh v. Gibson
a determination that the losing party’s claim was (1) without
merit, and (2) not brought or asserted in good faith.” Rocky Ford
Irrigation Co. v. Kents Lake Reservoir Co., 2019 UT 31, ¶ 67
(quotation simplified). In reviewing a trial court’s decision to
deny or grant attorney fees under this provision, we apply a
two-part standard of review. Id. ¶ 68. First, “a determination . . .
as to the merits of a claim typically will turn on a conclusion of
law—as to whether the losing party’s claim lacks a basis in law
or fact”—which “is reviewed for correctness.” Id. (quotation
simplified). Second, “whether a claim has not been brought or
asserted in good faith is a question of fact and we review it
under a clearly erroneous standard.” In re Discipline of
Sonnenreich, 2004 UT 3, ¶ 45, 86 P.3d 712 (quotation simplified).
And because the good faith element “implicates fact-intensive
questions about the losing party’s subjective intent[,] . . . a lower
court’s finding on this element typically will be afforded a
(…continued)
of Professionalism and Civility, which directs attorneys to avoid
“reflecting any ill-will that clients may have for their
adversaries” and to “treat all other counsel . . . in a courteous
and dignified manner.” Utah Standards of Professionalism
& Civility 1. Additionally, it seems to us that both the Gibsons
and Linebaugh could have handled the initial dispute more
appropriately and that they all acted in an overly zealous
manner, drastically escalating an issue that could have been
easily and more civilly resolved. It seems all but certain that
counsel did not “advise their clients that civility, courtesy, and
fair dealing are expected” as “[t]hey are tools for effective
advocacy and not signs of weakness.” Id. R 2. In sum, we take
umbrage at the behavior of all involved—with the exception of
Negrette—and implore the parties and their counsel, going
forward, to avoid the uncivil and contentious tone that has
prevailed from the moment this dispute arose.
20180237-CA 13 2020 UT App 108Linebaugh v. Gibson
substantial measure of discretion.” Rocky Ford Irrigation, 2019 UT
31, ¶ 68 (quotation simplified).
ANALYSIS
I. Boundary by Acquiescence
¶24 Linebaugh asserts that her property boundary extended
all the way to the v-mesh fence by virtue of boundary by
acquiescence and that the trial court erred in concluding that her
claim failed because the fence was first built to contain
animals and also did not meet the twenty-year requirement. We
agree.
¶25 The “boundary by acquiescence doctrine requires a
claimant to show: (1) a visible line marked by monuments,
fences, buildings, or natural features treated as a boundary;
(2) the claimant’s occupation of his or her property up to the
visible line such that it would give a reasonable landowner
notice that the claimant is using the line as a boundary; (3)
mutual acquiescence in the line as a boundary by adjoining
landowners; (4) for a period of at least 20 years.” Anderson v.
Fautin, 2016 UT 22, ¶ 31, 379 P.3d 1186. To prevail on a
claim of boundary by acquiescence, a claimant must prove
each element “by clear and convincing evidence.” Essential
Botanical Farms, LC v. Kay, 2011 UT 71, ¶ 34, 270 P.3d 430.
Because the first two elements of this test are not in dispute, we
limit our analysis to mutual acquiescence and the twenty-year
period.
A. Mutual Acquiescence
¶26 Parties acquiesce in a boundary when they “recognize
and treat an observable line, such as a fence, as the boundary
dividing the owner’s property from the adjacent landowner’s
property.” RHN Corp. v. Veibell, 2004 UT 60, ¶ 24, 96 P.3d 93520180237-CA 14 2020 UT App 108Linebaugh v. Gibson
(quotation simplified). Acquiescence “is a highly fact-dependent
question,” and acquiescence “may be tacit and inferred from
evidence [that] the landowner’s actions with respect to a
particular line may evidence the landowner impliedly consents,
or acquiesces, in that line as the demarcation between the
properties.” Id. (quotation simplified). Acquiescence “is an
objective determination based solely on the parties’ actions in
relation to each other and to the line serving as the boundary.”
Essential Botanical Farms, 2011 UT 71, ¶ 27.
¶27 Mutual acquiescence may “be shown by silence, or
through failure by the record title owner to suggest or imply
that the dividing line between the properties is not in the
proper location.” Id. (quotation simplified). See Fautin, 2016
UT 22, ¶ 21 (“[T]he mutual acquiescence element merely
requires silence or indolence by a nonclaimant who may or
may not occupy his or her property.”). “Nonacquiesence in
a boundary would be signaled where a landowner notifies
the adjoining landowner of her disagreement over the
boundary, or otherwise takes action inconsistent with recognition
of a given line as the boundary.” Essential Botanical Farms, 2011
UT 71, ¶ 27 (emphasis in original) (quotation simplified).
Ultimately, “a party’s subjective intent has no bearing on the
existence of mutual acquiescence” because such acquiescence
“is based on the objective behavior of the adjacent landowners
regardless of their subjective intent to act in such a manner.” Id.A party’s subjective belief will be considered evidence of
mutual acquiescence only “to the extent that such
understanding is based on the objective actions of the
landowners.” Id. ¶ 28.
¶28 The trial court erred in concluding that because the
fence was built for animal containment, the Gibsons and their
predecessors could not have acquiesced in the fence serving
as the boundary line between the properties. Simply put,
the court and Appellees misread Utah case law on the issue.
Citing Hales v. Frakes, 600 P.2d 556, 559 (Utah 1979), and other
20180237-CA 15 2020 UT App 108Linebaugh v. Gibson
Utah Supreme Court and Utah Court of Appeals opinions,
Appellees assert that if a fence is built to confine animals,
the landowner cannot acquiesce in the fence serving as a
boundary because the landowner who built the fence “did
not intend the fence to be the boundary.” In essence, they
contend that the initial intent that the fence be used to
contain animals renders any subsequent interaction between
the nonclaimant property owner and the claimant immaterial.
But this reasoning and the cited authority does not comport
with logic or with recent opinions from our Supreme Court.13
In Essential Botanical Farms, 2011 UT 71, our Supreme Court
made it absolutely clear that a claim for boundary by
acquiescence “is determined by the parties’ objective actions in
relation to the boundary and not their mental state.” Id. ¶ 14
13. In addition, Hales v. Frakes, 600 P.2d 556 (Utah 1979), is not as
compelling as Appellees suggest. Although our Supreme Court
declined to overturn the trial court’s ruling in that case that there
had been no boundary by acquiescence because the purpose of
the fence was to contain animals, additional facts convinced the
Court this was appropriate, such as the fence being “purposely
offset so as to be south of [an] expected road” and that there was
no “substantial evidence” the nonclaimant “recognize[d] the
fence as a boundary.” Id. at 559. Therefore, even prior to our
Supreme Court’s recent clarification of the boundary by
acquiescence doctrine, it still looked to the parties’ objective
actions and other factors before making a determination, clearly
indicating that the purpose of the fence alone was not the
dispositive factor but one of many courts should consider in
determining mutual acquiescence. Cf. Van Dyke v. Chappell, 818
P.2d 1023, 1027 (Utah 1991) (holding that the trial court correctly
found mutual acquiescence where the evidence showed that the
fence was built “as a livestock barrier, a boundary line, or both”)
(emphasis added).
20180237-CA 16 2020 UT App 108Linebaugh v. Gibson
(emphasis added). Additionally, in Fautin, 2016 UT 22, 14 the
Supreme Court stated,
Our failure to separate boundary by acquiescence
from boundary by agreement led to an additional
unfortunate consequence. Specifically, we began to
require evidence from which we could infer that a
nonclaimant expressly consented to treat a visible
line as a boundary. This distorted the notion of
acquiescence, which merely requires passive assent
. . . .
14. Appellees, and the trial court in its order, assume that
Anderson v. Fautin, 2016 UT 22, 379 P.3d 1186, deals only with a
single element of boundary by acquiescence and therefore is not
controlling in this case. The fact that our Supreme Court stated
that the “case raises a single legal question: does the occupation
element in our boundary by acquiescence doctrine require a
claimant to prove that both owners of adjoining land occupied
their respective parcels up to a visible line,” id. ¶ 1, this does not
render everything else the Court stated about boundary by
acquiescence nonbinding. In fact, the Court stated later in the
opinion, “As the parties’ arguments demonstrate, we have made
inconsistent articulations and applications of both the
occupation element and the mutual acquiescence element in our
precedent . . . [and] we must [now] consider the ways in which
these two related doctrines have shaped our boundary by
acquiescence jurisprudence.” Id. ¶ 10 (emphasis added). It
therefore seems to us that Fautin is an appropriate case to rely on
in determining any boundary by acquiescence case because the
Court used it to correct its past oversight in blurring the mutual
acquiescence and occupation elements, and Fautin is controlling
on the issue.
20180237-CA 17 2020 UT App 108Linebaugh v. Gibson
Id. ¶ 18 (emphasis in original). Thus, the fact that a fence is built
with the initial objective of containing animals—as opposed to
where such a fence is built and how the parties thereafter regard
it—is not dispositive. The Supreme Court has explicitly held that
“a party’s subjective intent has no bearing on the existence of
mutual acquiescence.” Essential Botanical Farms, 2011 UT 71, ¶ 27.
¶29 In the present case, the fact that the Gibsons’ predecessors
in interest built the fence to confine their animals might tend to
suggest that they did not acquiesce in the fence as a boundary, as
would be the case if they constructed a pen well within their
own boundary and thereafter treated the property between the
one side of the pen and the legal boundary as their own,
thereafter weeding and watering that ground, for instance. But
their objective actions afterward did not in any way convey such
an intent to Linebaugh’s predecessors. 15 In fact, the contrary is
true. In its findings, the trial court stated that “none of the
predecessors in interest to [Linebaugh’s] property ever had any
discussions with anyone about the boundaries of their
property,” that “[i]t [was] undisputed [that] a fence was built in
15. The trial court did find that “[Linebaugh] and her
predecessors in interest knew of and were aware of animals
being contained by the fence.” The fact that a fence confines
animals does not conclusively establish a lack of mutual
acquiescence. There still must be objective actions on the
part of the non-claiming landowner to convey to the
boundary-by-acquiescence claimant that the non-claiming
landowner objects to the fence serving as the boundary. See
Staker v. Ainsworth, 785 P.2d 417, 420–21 (Utah 1990) (“There is
no indication in the record that any predecessor in interest
behaved in a fashion inconsistent with the belief that the fence
line was the boundary. Owners occupied houses, constructed
buildings, farmed, irrigated, and raised livestock only within their
respective fenced areas.”) (emphasis added).
20180237-CA 18 2020 UT App 108Linebaugh v. Gibson
1951,” and that “[t]he occupants of the Gibson Property never
used any of the property north of the V-Mesh Fence [from 1976
to 2015],” while Linebaugh and her predecessors “used the
entirety of the property between their home and the V-Mesh
Fence as their backyard.”
¶30 The trial court’s findings establish that there was
acquiescence on the part of the Gibsons and their predecessors
that the v-mesh fence served as the boundary line between the
two properties. The fact that the various landowners never
discussed the boundaries, combined with the fact that
Linebaugh and her predecessors—for decades—used the
property up to the fence that acted as the boundary between the
properties, overcomes any notion that the Gibsons or their
predecessors in interest could not have acquiesced to the fence
serving as the boundary line solely because it was initially built
to contain animals. 16 In this regard, it is noteworthy that the
fence here followed a seemingly straight boundary line across
two properties—the Linebaugh Property and the neighbor to the
west—and was in line with the fence of the neighbor to the east
for several feet before that fence jogged slightly to the north. See
Van Dyke v. Chappell, 818 P.2d 1023, 1027 (Utah 1991)
(“[E]vidence that provides further support for the finding that
the fence was intended as a boundary consisted of the fact that
the fence was in line with the rest of the fences that ran across
16. The trial court’s and Appellees’ reliance on the fence being
built for the confinement of animals is overblown. It is not
inimical to a fence marking a boundary that its immediate
purpose is to keep animals on the property. See Van Dyke v.
Chappell, 818 P.2d 1023, 1027 (Utah 1991) (holding that a fence
that is acting “as a livestock barrier” can also act as “a boundary
line”); Staker v. Ainsworth, 785 P.2d 417, 420–21 (Utah 1990)
(holding that a fence acted as a boundary even though the
parties raised livestock within the fenced areas).
20180237-CA 19 2020 UT App 108Linebaugh v. Gibson
the valley.”). And the Gibsons, Linebaugh, and their
predecessors in interest did not behave “in a fashion inconsistent
with the belief that the fence line was the boundary.” See Staker
v. Ainsworth, 785 P.2d 417, 420–21 (Utah 1990).
¶31 Thus, the Gibsons and their predecessors’ failure through
their objective actions “to suggest or imply that the dividing line
between the properties” was not the correct boundary
conclusively establishes, as a matter of law, that the Gibsons and
their predecessors acquiesced in the v-mesh fence serving as the
boundary line. 17 See Essential Botanical Farms, 2011 UT 71, ¶ 27
(quotation simplified). See also Ault v. Holden, 2002 UT 33, ¶ 20,
44 P.3d 781 (holding that property owners must “take some
action manifesting that they do not acquiesce or recognize the
particular line, e.g., a fence, as a boundary between the
properties”).
¶32 The objective behavior of the Gibsons and their
predecessors, in doing nothing for decades to disavow the
fence’s demarcation of the boundary, overcomes any subjective
reason—animal containment or otherwise—they had for
building the fence at that location in the first place. Ultimately,
“the undisputed facts are clear and convincing evidence that the
[Gibsons, Linebaugh, and their predecessors in interest]
mutually acquiesced by recognizing and treating the fence as the
boundary between their properties.” See Essential Botanical Farms,
2011 UT 71, ¶ 29.
B. Twenty-Year Requirement
¶33 The trial court’s second error in considering boundary by
acquiescence was in finding that the twenty-year requirement
17. Nor did the Gibsons’ repair of the v-mesh fence in 1996
convey to their then-neighbors any objection to the fence serving
as the boundary line. See infra ¶ 34.
20180237-CA 20 2020 UT App 108Linebaugh v. Gibson
had not been met. Although the court found the fence was built
in 1951, at trial Linebaugh was able to present direct evidence of
the fence’s location only from 1976 to 2015. We therefore limit
our analysis to the period from 1976 to 2015.
¶34 The trial court concluded that Linebaugh did not meet the
twenty-year requirement because in 1996, the Gibsons moved
the fence, thus breaking the timeline. 18 We conclude this
determination was in error. The Gibsons’ efforts in repairing the
fence in 1996 did not properly convey to Linebaugh’s
predecessors any objection to the fence serving as the boundary.
When asked at trial whether rebuilding the fence would “disturb
the earth so that [his] neighbor would see that [it] had [been]
moved,” Russell responded that it would not have, and he
earlier stated that they “weren’t making a major project.” The
court found that “the fence was rebuilt and in some but not all
spots the middle fence posts were moved further north towards
[the Gibson Property’s] northern deeded property line” but “the
end posts of the fence on both ends of the fence remained
unchanged.” The court also found that “[Linebaugh’s]
predecessor in interest that owned the property when the fence
was rebuilt and moved testified there was a V-mesh fence when
they purchased the property, but they did not think it had been
moved.” The court ultimately concluded that the “fence line, as
constructed [in 1951], running east and west, was on
‘approximately’ the same east/west fence line occupied by the
[1996] V-Mesh Fence.” Thus, the court erred in determining that
the 1996 repair either signaled the Gibsons’ objection to the fence
serving as the boundary line or restarted a new twenty-year
period. Cf. Clair W. & Gladys Judd Family Ltd. P'ship v. Hutchings,
797 P.2d 1088, 1090 (Utah 1990) (holding that the landowner
acquiesced in the boundary even though during the twenty-year
18. Linebaugh initiated suit in 2015—39 years into the period in
question but only 19 years after the repair.
20180237-CA 21 2020 UT App 108Linebaugh v. Gibson
period “the fence was repaired and posts replaced, except for the
two corner posts, which remained undisturbed up to the time of
trial”), modified on other grounds by Van Dyke v. Chappell, 818 P.2d
1023 (Utah 1991).
¶35 Because the court found that the v-mesh fence remained
in essentially the same place between 1976 and 2015, and the
Gibsons did not take any actions during that time that would
have objectively conveyed their opposition to the fence serving
as the boundary line, either before or after the repairs, the
twenty-year-period requirement was easily met and the court
erred in determining otherwise.
II. Trespass
¶36 “A person is liable for trespass when, without permission,
he intentionally enters land in the possession of another, or
causes a thing or a third person to do so.” Purkey v. Roberts, 2012
UT App 241, ¶ 17, 285 P.3d 1242 (quotation simplified). See
O'Neill v. San Pedro, L.A. & S.L.R. Co., 114 P. 127, 128 (Utah 1911)
(“In law every entry upon the soil of another, in the absence of
lawful authority, without the owner’s license, is a trespass.”)
(quotation simplified).
¶37 As a result of a trespass, a plaintiff generally will receive
compensatory and/or nominal damages “whether or not the
defendant intentionally entered the plaintiff’s property.” Gallegos
v. Lloyd, 2008 UT App 40, ¶ 11, 178 P.3d 922. “[T]he amount of
damages recoverable for trespass, because of the nature of the
tort, is integrally related to the extent of the defendant’s
interference with both the land and the plaintiff’s possessory
interests.” Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1244
(Utah 1998). Usually, “[t]he measure of [compensatory] damages
for trespass on real property and destruction thereon is . . . the
difference between the value of the property before and after the
trespass.” Pitts v. Pine Meadow Ranch, Inc., 589 P.2d 767, 769
(Utah 1978). However, in addition to “compensation for
20180237-CA 22 2020 UT App 108Linebaugh v. Gibson
diminution in the land’s value” a plaintiff may recover
“compensation for any personal or property injury that resulted
from the encroachment on the land.” Walker Drug, 972 P.2d at
1244. “To prove these types of damages, a plaintiff must prove
the extent of the defendant’s invasion and the gravity of the
interference with the plaintiff’s possessory rights, facts which
also establish liability.” Id. at 1244–45. But “[i]n circumstances
where no substantial damages result [from the trespass] and
none are proved, the law will infer nominal damages,”
Henderson v. For-Shor Co., 757 P.2d 465, 471 (Utah Ct. App. 1988),
for which “one dollar is the amount generally awarded,” Fashion
Place Assocs. v. Glad Rags, Inc., 754 P.2d 940, 942 (Utah 1988).
¶38 Plaintiffs may also recover punitive damages “for even a
harmless trespass” if they can prove that the defendant
committed the trespass with a “complete disregard of [their]
legally protected interest in the exclusive possession of [their]
land.” Restatement (Second) of Torts § 613 cmt. e (Am. Law Inst.
1965). Accord Purkey, 2012 UT App 241, ¶ 20. Thus, “[w]hether
the trespasser had a wrongful intent becomes relevant
only when a property owner seeks punitive damages.” Purkey,
2012 UT App 241, ¶ 20. “Before punitive damages may be
awarded,” however, “the plaintiff must prove conduct that is
willful and malicious or that manifests a knowing and reckless
indifference and disregard toward the rights of others.” Atkin
Wright & Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330,
337 (Utah 1985) (citations omitted). “Although punitive
damages may be awarded in an appropriate case, the general
rule is that only compensatory damages are appropriate and that
punitive damages may be awarded only in exceptional cases.”
Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d 1179, 1186 (Utah
1983). Ultimately, “punitive damages are not intended as
additional compensation to a plaintiff” but are meant to “serve a
societal interest of punishing and deterring outrageous and
malicious conduct which is not likely to be deterred by other
means.” Id.20180237-CA 23 2020 UT App 108Linebaugh v. Gibson
¶39 As explained in section I, the trial court erred in
concluding that Linebaugh’s property did not extend to the line
of the v-mesh fence. Thus, the new cement wall itself constituted
a trespass, and the Gibsons’ and Negrette’s related actions that
occurred beyond the old v-mesh line were also a trespass
because they “enter[ed] land in the possession of [Linebaugh], or
cause[d] a thing or a third person to do so.” See Purkey, 2012 UT
App 241, ¶ 17 (quotation simplified).
¶40 Because the Gibsons and Negrette trespassed on
Linebaugh’s property, Linebaugh is entitled to damages. We
must remand for the calculation of compensatory or nominal
damages as well as possible punitive damages because these are
factual determinations more appropriately left to the trial court. 19
For compensatory damages, the court must determine “the value
of the property before and after the trespass,” Pitts, 589 P.2d at
769, in addition to “any personal or property injury that resulted
from [that trespass],” Walker Drug, 972 P.2d at 1244. In the event
the court finds that there are “no substantial damages” as a
result of the trespass, then it shall grant nominal damages to
Linebaugh. See Henderson, 757 P.2d at 471.
¶41 In regard to punitive damages, if Linebaugh can establish
that the Gibsons or Negrette committed the trespass with a
“complete disregard of [her] legally protected interest in the
exclusive possession of [her] land,” Restatement (Second) of
Torts § 613 cmt. e, and exhibited a “knowing and reckless
19. In light of the fact that Linebaugh has changed her mind
about the cement wall and indicated at trial that she now wishes
the wall to remain, given the time and resources it will take to
resolve the damages issues evidentiarily, and given that our
opinion has significantly reduced the scope of the parties’
dispute, it would surely seem appropriate for counsel to steer
the parties to a reasonable settlement of the trespass damages to
which Linebaugh is entitled.
20180237-CA 24 2020 UT App 108Linebaugh v. Gibson
indifference and disregard toward [her] rights,” Atkin Wright
& Miles, 709 P.2d at 337, then the court shall also grant her
punitive damages.
III. IIED
¶42 Linebaugh argues that the trial court erred in
dismissing her claim for IIED because it determined that her
emotional distress was not sufficiently severe to support the
claim. “In Utah, a claim for IIED is actionable if: (i) the
defendant’s conduct is outrageous and intolerable; (ii) the
defendant intends to cause emotional distress; (iii) the plaintiff
suffers severe emotional distress; and (iv) the defendant’s
conduct proximately causes the plaintiff’s emotional distress.”
Wilson v. Sanders, 2019 UT App 126, ¶ 18, 447 P.3d 1240(quotation simplified).
¶43 “[G]eneral pain and suffering . . . , standing alone, are not
sufficient to support a claim for [IIED].” Schuurman v. Shingleton,
2001 UT 52, ¶ 25, 26 P.3d 227. The emotional distress a plaintiff
experiences must be “so severe that no reasonable [person] could
be expected to endure it,” which “includes all highly unpleasant
mental reactions, such as fright, horror, grief, shame,
humiliation, embarrassment, anger, chagrin, disappointment,
worry, and nausea.” In re Estate of Grimm, 784 P.2d 1238, 1246
(Utah Ct. App. 1989) (quotation simplified).
¶44 Assuming, without deciding, that Appellees’ conduct was
outrageous and intolerable, we nevertheless affirm the trial
court’s grant of summary judgment in favor of Appellees
because Linebaugh presented insufficient evidence, as a matter
of law, to establish that she suffered severe emotional distress.
Insofar as the court premised its summary judgment decision
solely on the fact that Linebaugh did not obtain additional
medical care and that the emotional distress did not interfere
with her work, the court erred because those are not the
benchmarks for the IIED tort in Utah. Even so, the totality of the
20180237-CA 25 2020 UT App 108Linebaugh v. Gibson
evidence Linebaugh presented, coupled with her admissions, is
insufficient to establish the severe emotional distress element of
IIED, and thus it is insufficient to establish a prima facie case.
¶45 Although Linebaugh correctly asserts that evidence of
“medical treatment and/or interference with work [is not]
required to prove ‘severe’ emotional distress,” she was still
required to present some evidence to show she suffered severe
emotional distress in light of her admissions suggesting she did
not. Cf. Wilson, 2019 UT App 126, ¶ 21 (holding that evidence
presented by the plaintiff that he “was unable to perform his job
safely, and was sent home from work; he was hospitalized and
needed multiple therapy sessions; and his coworkers and close
friends observed that he had become increasingly depressed and
suicidal” was enough to support the plaintiff’s claim that he
suffered severe emotional distress).
¶46 Here, Linebaugh did not provide evidence of her severe
emotional distress beyond her own testimony, which normally
would be sufficient to defeat a summary judgment motion. But
because the facts to which she stipulated substantially undercut
her testimony, her claim could not withstand summary
judgment. Specifically, although she continued to visit her
mental health providers for pre-existing and ongoing depression
and anxiety issues, she never mentioned her claimed severe
emotional distress to them; her medical treatments and
medications did not change after the alleged conduct by
Appellees; and she suffered no adverse effects in her
employment. These admissions collectively color the other
aspects of her testimony and confirm, as a matter of law, that
Linebaugh would not be able to make out a prima facie case and
thus was not entitled to a trial on her IIED claim.
IV. Attorney Fees
¶47 In their cross-appeal, Appellees assert that the trial court
erred in declining to grant their request under Utah Code section
20180237-CA 26 2020 UT App 108Linebaugh v. Gibson
78B-5-825(1) for attorney fees and costs. 20 Specifically, Appellees
argue that Linebaugh’s causes of action for boundary by
acquiescence, trespass, boundary by estoppel, IIED, and assault
were all “frivolous, of very little weight, and simply had no basis
in law and/or fact” and were “without merit” and asserted in
bad faith.
¶48 The Utah Code provides that “the court shall award
reasonable attorney fees to a prevailing party if the court
determines that the action or defense to the action was without
merit and not brought or asserted in good faith.” Utah Code
Ann. § 78B-5-825(1) (LexisNexis 2018). “A claim is without merit
if it is frivolous, is of little weight or importance having no basis
in law or fact, or clearly lacks a legal basis for recovery.” Wardley
Better Homes & Gardens v. Cannon, 2002 UT 99, ¶ 30, 61 P.3d 1009(quotation simplified). “A party’s good faith may be established
by proof of an honest belief in the propriety of the activities in
20. Additionally, both sides seek an award of attorney fees
incurred on appeal. Quoting Utah Telecommunication Open
Infrastructure Agency v. Hogan, 2013 UT App 8, 294 P.3d 645,
Appellees assert that “[e]ven where a party was not awarded
attorney fees below, they may still be entitled to recover fees on
appeal, ‘[i]f, on remand, the trial court determines that [party] is
entitled to attorney fees [in which event] the trial court should
also determine’ and award the fees reasonably incurred on
appeal as well.” See id. ¶ 24. Because we decline to remand to the
trial court with instructions to award Appellees their attorney
fees incurred in the action below, we also decline to award them
attorney fees on appeal. They have not “received attorney fees
below” and have not “prevail[ed] on appeal.” Fadel v. Deseret
First Credit Union, 2017 UT App 165, ¶ 38, 405 P.3d 807(quotation simplified). We also decline to award Linebaugh any
fees on appeal and leave both parties to cover their own costs
and expenses.
20180237-CA 27 2020 UT App 108Linebaugh v. Gibson
question; a lack of intent to take unconscionable advantage of
others; and a lack of intent to, or knowledge of the fact that the
activities in question will hinder, delay, or defraud others.”
Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 2019 UT 31,
¶ 68 (quotation simplified).
A. Boundary by Acquiescence and Trespass
¶49 As we have held above, supra ¶¶ 24–35, the trial court
erred in determining that Linebaugh’s claim for boundary by
acquiescence was without merit. Her claim was in fact a classic
boundary by acquiescence case and was properly brought before
the court for resolution. Additionally, because Linebaugh’s
boundary by acquiescence claim was legally correct, the
boundary of her property actually extended all the way to the
v-mesh fence. Thus, the cement wall that the Gibsons built, along
with all of the Gibsons’ and Negrette’s related actions that took
place north of the old fence line, such as moving Linebaugh’s
shrubbery and cutting her lilac bush, constituted a trespass. Both
claims were therefore meritorious because they had a clear
foundation in law and fact that provided Linebaugh a “legal
basis for recovery.” Cannon, 2002 UT 99, ¶ 30, (quotation
simplified). Obviously, then, Appellees are not entitled to
attorney fees on these issues. See Utah Telecomm. Open
Infrastructure Agency v. Hogan, 2013 UT App 8, ¶ 18, 294 P.3d 645(“Because . . . [the plaintiff’s] action had merit, we need not
consider whether the action was brought in bad faith.”).
B. Boundary by Estoppel, IIED, and Assault
¶50 Appellees further assert that Linebaugh “had actual
knowledge all along, including even before filing her complaint,
that there was no factual basis for any of her claims.” They also
assert that Linebaugh’s “intent was to take unconscionable
advantage of [them].” Assuming, without deciding, that
Linebaugh’s remaining claims were without merit, we
nonetheless decline to award Appellees attorney fees because
20180237-CA 28 2020 UT App 108Linebaugh v. Gibson
they have failed to show that the trial court’s finding that
Linebaugh did not bring them in bad faith was clearly
erroneous. The court found that although “there clearly appears
to be a questionable course of action by [Linebaugh] . . . in
bringing the claims based upon the apparent lack of facts to
support some of the claims, in particular the claim for [IIED] and
civil assault, the Court does not find bad faith, but rather lack of
judgment.”
¶51 The only facts that Appellees cite in support of their
claims for attorney fees below is that Linebaugh “argued for two
and a half years for removal of the cement wall . . . only to admit
at trial that she [did] not want it removed,” that she recorded a
lis pendens against the Gibson Property, that she failed to
prosecute the case for “nine months after the summary judgment
ruling,” that “[s]he provided video evidence of what she claimed
evidenced ‘bullying’ behavior . . . which patently [it] does not,”
and that “[s]he admits the only effect of the de minimus
trespasses claims is a guesstimate of $312.” Appellees then ask
us to infer from these facts that Linebaugh “could not have had
any honest belief in the propriety of her claims” and that she
intended “to take unconscionable advantage of [them].” But this
evidence does not establish that the court’s “finding is without
adequate evidentiary support” and therefore clearly erroneous.
Hale v. Big H Constr., Inc., 2012 UT App 283, ¶ 9, 288 P.3d 1046(quotation simplified). See Widdison v. Kirkham, 2018 UT App 205,
¶ 9, 437 P.3d 555 (“Although failing to marshal the evidence is
no longer considered a technical deficiency, an appellant failing
to marshal all relevant evidence presented at trial which tends to
support the findings and demonstrate why the findings are
clearly erroneous will almost certainly fail to carry their burden
of persuasion on appeal.”) (quotation simplified).
¶52 As to Linebaugh’s delay in prosecuting her claims, there
could be many reasons why a party fails to move her claims
forward, apart from a belief in their impropriety. Although we
encourage parties to expeditiously move their claims forward, a
20180237-CA 29 2020 UT App 108Linebaugh v. Gibson
failure to do so is not definitive proof of bad faith. As to
Linebaugh’s other actions, they do not seem so egregious as to
indicate bad faith but rather legal strategy or difference in
interpretation of facts that, while Appellees take exception,
might nonetheless be within the bounds of propriety.
¶53 Because Appellees cannot show that the trial court clearly
erred in finding that Linebaugh did not proceed in bad faith, and
because the trial court is afforded “a substantial measure of
discretion” regarding the “fact-intensive questions about the
losing party’s subjective intent,” we decline to disturb its ruling
on these issues. See Rocky Ford Irrigation, 2019 UT 31, ¶ 68
(quotation simplified).
CONCLUSION
¶54 We reverse the trial court’s ruling that Linebaugh failed to
establish all the elements of boundary by acquiescence as to the
Gibsons and their predecessors in interest. Accordingly, we also
reverse the court’s ruling that the Gibsons and Negrette did not
trespass on Linebaugh’s property. We remand to the trial court
for a determination of damages as a result of the trespass. We
do, however, affirm the trial court’s grant of summary judgment
in favor of Appellees on Linebaugh’s IIED claim because
Linebaugh could not, as a matter of law, establish a prima facie
case entitling her to a trial on the claim. We also affirm the trial
court’s denial of attorney fees to Appellees and further decline to
sanction either party or award attorney fees on appeal.
20180237-CA 30 2020 UT App 108Linebaugh v. Gibson
APPENDIX
20180237-CA 31 2020 UT App 108