Linebaugh v. Gibson

Decision Date16 July 2020
Docket NumberNo. 20180237-CA,20180237-CA
Citation471 P.3d 835
Parties Sarah LINEBAUGH, Appellant and Cross-appellee, v. Russell L. GIBSON, Robert P. Gibson, Andy Negrette, and Hunter Eldracher, Appellees and Cross-Appellants.
CourtUtah Court of Appeals

Michael N. Zundel and James A. Boevers, Salt Lake City, Attorneys for Appellant and Cross-appellee

Bradley L. Tilt, Salt Lake, 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 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 years2 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 Negrette3 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 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.

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 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 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.


¶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 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."

¶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 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 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...

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