Carter v. Done

• Decision Date: 15 March 2012
• Docket Number: No. 20100478–CA.,20100478–CA.
• Citation: 2012 UT App 72,276 P.3d 1127,704 Utah Adv. Rep. 15
• Parties: Brian W. CARTER and Megan B. Carter, Plaintiffs and Appellees, v. Steve DONE; Clara Done; Rock Hard Construction, Inc.; Anderson Excavating, Inc.; and John Does 1–10, Defendants and Appellants.
• Court: Utah Court of Appeals

276 P.3d 1127

704 Utah Adv. Rep. 15

2012 UT App 72

Brian W. CARTER and Megan B. Carter, Plaintiffs and Appellees,

v.Steve DONE; Clara Done; Rock Hard Construction, Inc.; Anderson Excavating, Inc.; and John Does 1–10, Defendants and Appellants.

No. 20100478–CA.

Court of Appeals of Utah.

March 15, 2012.

Brad C. Smith and David B. Stevenson, Ogden, for Appellants.

Edwin S. Wall, Salt Lake City, for Appellees.

Before Judges McHUGH, THORNE, and CHRISTIANSEN.

OPINION

THORNE, Judge:

¶ 1 Steve and Clara Done appeal from the district court's judgment against them and in favor of Brian W. and Megan B. Carter. The Carters had sought the removal of fill dirt that had been placed on their property during construction on the Dones' adjacent lot. The district court balanced the equities between the parties and awarded the Carters $25,000 in damages in lieu of an injunction requiring the Dones to remove the dirt. We affirm.

BACKGROUND

¶ 2 The Carters and the Dones own adjacent residential lots in the foothills of North Salt Lake, and both parties began constructing homes on their respective lots in late 2003. Both lots were sharply sloped. The Carters raised the level of their lot with fill dirt, and to retain the dirt they constructed a concrete retaining wall running parallel to the property line between their lot and the Dones'. The wall was constructed on the Carters' property, four feet inside the property line.

¶ 3 Shortly thereafter, Rock Hard Construction, Inc. (Rock Hard) began construction of the Dones' home on their lot. The Dones also desired to raise the level of their lot, and to this end, Rock Hard subcontracted with Anderson Excavating, Inc. (Anderson) to perform excavation and grading and to prepare the property for construction. The Dones had not arranged for any type of retaining wall to keep their additional fill dirt off of the Carters' property. Nevertheless, in January 2004, Rock Hard arranged for fill dirt to be delivered to and spread out across the Dones' property. During this process, the fill dirt, consisting of soil, rock, and boulders, was pushed up flush against the Carters' retaining wall, burying the wall and the four-foot strip of the Carters' land that lay between the wall and the property line. Dirt and rocks from the Dones' lot were also moved onto the back of the Carters' lot, where the material pushed up against a wall of the Carters' partially-constructed home. Who exactly directed that the dirt be moved onto the Carters' property, and the degree of knowledge or involvement that the Dones personally had in regard to those actions, were issues of dispute between the parties.

¶ 4 When the Carters discovered the dirt on their property, they sued the Dones, Rock Hard, and Anderson, alleging multiple causes of action and seeking damages and injunctive relief. In September 2004, the district court conducted a hearing on the Carters' request for a temporary injunction, at which the parties reached an agreement that the defendants would remove the dirt from the rear of the Carters' lot so that the Carters could get their home inspected and approved.¹ The dirt at the rear of the Carters' lot was removed in December 2004. The four-foot wide column of dirt against the Carters' retaining wall was not removed, and the Dones finished the construction of their home using the trespassing dirt as lateral support for the fill dirt on their property.

¶ 5 In 2006, the Carters settled their claims against both Rock Hard and Anderson. They continued their litigation against the Dones, and the district court conducted a bench trial in October 2009. The only issue that the Carters presented at trial was a request for a mandatory injunction against the Dones, requiring them to remove the four-foot column of dirt that remained on the Carters' property. At trial, the Carters sought to establish that the Dones were actively involved in placing the dirt on the Carters' property and should be required to remove it. The Dones disputed their involvement in placing the dirt and presented evidence that, were a mandatory injunction to issue, they would have to tear out a substantial amount of construction on their property in order to comply.

¶ 6 The district court found that the Dones had not directed the placement of the dirt onto the Carters' property but had nevertheless allowed the dirt to remain there without otherwise retaining their own property. However, in lieu of an injunction, the district court balanced the equities between the parties and determined that the Carters could be adequately compensated with money damages of $25,000. The court stated that it had reached this figure “in the nature of something of unjust enrichment,” based on testimony that the Carters' retaining wall had cost $25,000 to construct, that a retaining wall constructed by the Dones would cost at least that much, and that if the Dones “had to dig up the driveway and the RV pad or the side of the garage it ... could be hundreds of thousands of dollars.” The Dones appeal from the district court's $25,000 judgment in the Carters' favor.²

ISSUES AND STANDARDS OF REVIEW

¶ 7 The Dones first argue that they cannot be held liable for trespass against the Carters in light of the district court's factual findings that the Dones themselves did not place dirt on the Carters' property, nor did they direct Rock Hard or Anderson to do so. This issue raises questions of law pertaining to the tort of trespass and the liability of individuals for the tortious acts of their independent contractors. We review such questions for correctness. See, e.g., Nielsen v. Spencer, 2008 UT App 375, ¶¶ 10, 12, 196 P.3d 616 (applying a correctness standard to issues that “ask us to interpret and apply the elements of [a] tort”).

¶ 8 The Dones next raise three related arguments arising from the district court's balancing of the equities and award of money damages in lieu of a mandatory injunction. Specifically, the Dones argue that the money damages award constituted a change to the Carters' election of an equitable remedy, that the court awarded damages based on a cause of action—unjust enrichment—that was neither pleaded nor tried, and that the Carters failed to allege or prove the elements of an unjust enrichment claim. These arguments challenge the district court's interpretation and application of the balancing-of-the-equities doctrine, and we review the district court's actions in this regard for an abuse of discretion. See, e.g., Carrier v. Lindquist, 2001 UT 105, ¶ 29, 37 P.3d 1112 (“We review the district court's decision not to apply a balancing of equities test for abuse of discretion.”); Papanikolas Bros. Enters. v. Sugarhouse Shopping Ctr. Assocs., 535 P.2d 1256, 1259 (Utah 1975) (stating that where the “balance of injury” test is met, “equity may in its discretion elect not to compel removal”).

ANALYSIS

¶ 9 The Dones' arguments challenge both their liability for trespass against the Carters and the district court's remedy for that trespass. We determine that the Dones have not identified reversible error by the district court on either issue, and we affirm the judgment below.

I. The Dones' Liability for Trespass

¶ 10 The Dones' first argument is that they cannot be held liable for trespass because of the district court's factual finding that they did not personally place dirt on the Carters' property or direct Rock Hard or Anderson to place it there. In light of this finding, the Dones argue that trespass liability can exist only against their contractors, Rock Hard and Anderson.

¶ 11 We first examine and attempt to interpret the district court's findings. This task is complicated by the form of the stipulated order adopted by the district court. Despite the factually intensive nature of both the Carters' action and the district court's ultimate balancing of the equities, the record does not contain formal findings of fact. Rather, when the Dones objected to the Carters' proposed findings and conclusions, the parties stipulated that the findings of fact would consist of a transcript of the district court's oral ruling. Thus, we are called upon to extract the district court's factual findings from over eight pages of district court transcript that includes argument from the parties and sometimes ambiguous responses and commentary from the district court.³

¶ 12 Despite the unorthodox nature of the district court's order, we can extract the following factual findings that relate to the district court's decision on liability. The Carters constructed a concrete retaining wall on their property, four feet inside their property line with the Dones. Steve Done had no plan to build a corresponding wall on his property, and while he assumed one would be built, that never happened. Fill dirt was placed on the Dones' property, and a substantial amount of that dirt was moved or spread onto the Carters' property, against the Carters' retaining wall and against the back side of the Carters' house. The dirt against the back of the house was later removed after an agreement was reached by the parties following a temporary injunction hearing.

¶ 13 The dirt that was up against the Carters' retaining wall, burying the wall and the four-foot strip of the Carters' lot that lay outside of it, was not removed. On the critical question of the Dones' involvement in placing the dirt against the wall and onto the Carters' property, the district court found,

Done has never retained his property in front. And I don't think there's any question, there's no issue of fact before me that a—a—you know the evidence before me was that you know Anderson Excavating or the contractors, without direction of Mr. Done, put the dirt where they put the dirt. And although it wasn't Mr. Done who said where the dirt would go, he has left it against that, against their wall into that four foot of property into the other side or between his property and the wall. Those four feet that are...