Linebaugh v. Gibson

OCR transcription for search; preserved printed pages are authoritative

2020 UT App 108
THE 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:
I1 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
20180237-CA 	2 	2020 UT App 108
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
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.

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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.
BACKGROUND5
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.

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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

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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.
IIED7
¶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.

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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.”

Linebaugh v. Gibson
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¶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.

Linebaugh v. Gibson
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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.

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20180237-CA 	9 	2020 UT App 108
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

Linebaugh v. Gibson
20180237-CA 	10 	2020 UT App 108
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…)

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20180237-CA 	11 	2020 UT App 108
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.”).

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20180237-CA 	12 	2020 UT App 108
¶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…)

Linebaugh v. Gibson
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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.

Linebaugh v. Gibson
20180237-CA 	14 	2020 UT App 108
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 935

Linebaugh v. Gibson
20180237-CA 	15 	2020 UT App 108
(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

Linebaugh v. Gibson
20180237-CA 	16 	2020 UT App 108
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).

Linebaugh v. Gibson
20180237-CA 	17 	2020 UT App 108
(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.

Linebaugh v. Gibson
20180237-CA 	18 	2020 UT App 108
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).

Linebaugh v. Gibson
20180237-CA 	19 	2020 UT App 108
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).

Linebaugh v. Gibson
20180237-CA 	20 	2020 UT App 108
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.

Linebaugh v. Gibson
20180237-CA 	21 	2020 UT App 108
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.

Linebaugh v. Gibson
20180237-CA 	22 	2020 UT App 108
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

Linebaugh v. Gibson
20180237-CA 	23 	2020 UT App 108
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.

Linebaugh v. Gibson
20180237-CA 	24 	2020 UT App 108
¶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.

Linebaugh v. Gibson
20180237-CA 	25 	2020 UT App 108
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

Linebaugh v. Gibson
20180237-CA 	26 	2020 UT App 108
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

Linebaugh v. Gibson
20180237-CA 	27 	2020 UT App 108
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.

Linebaugh v. Gibson
20180237-CA 	28 	2020 UT App 108
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

Linebaugh v. Gibson
20180237-CA 	29 	2020 UT App 108
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

Linebaugh v. Gibson
20180237-CA 	30 	2020 UT App 108
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.

Linebaugh v. Gibson
APPENDIX
NORTH
2030 White Circle
Linebaugh Property (Plaintiff)
Busenbark Property (Neighbor)
WEST
EAST
Neighbor
Deed Boundary
Fence
West End of V-Mesh Fence
Other Gibson Property
2025 East
2029 East
Neighbor
Gibson Property (Defendant)
SOUTH
20180237-CA
31
2020 UT App 108