Carter v. Done

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

Brian W. Carter and Megan B. Carter, ) OPINION
)
Plaintiffs and Appellees, ) Case No. 20100478‐CA
)
v. )
) FILED
Steve Done; Clara Done; Rock Hard ) (March 15, 2012)
Construction, Inc.; Anderson )
Excavating, Inc.; and John Does 1–10, ) 2012 UT App 72
)
Defendants and Appellants. )
)

‐‐‐‐‐

Second District, Layton Department, 040602416
The Honorable Thomas L. Kay

Attorneys: Brad C. Smith and David B. Stevenson, Ogden, for Appellants
Edwin S. Wall, Salt Lake City, for Appellees

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Before Judges McHugh, Thorne, and Christiansen.

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

1
It is unclear whether the parties’ agreement addressed only the dirt in the rear of
the Carters’ lot or whether it also encompassed the dirt against the retaining wall.
(continued...)

20100478‐CA 2
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

1
(...continued)
Neither the temporary restraining order hearing transcript nor any written account of
the agreement is part of the record on appeal.
2
The Carters also initiated a cross‐appeal on the ground that the district court had
erred by awarding money damages instead of the requested injunction. However, they
never filed a cross‐appellants’ brief pursuing that issue. Instead, their appellees’ brief
raises the issue conditionally, seeking a remand for the issuance of an injunction only in
(continued...)

20100478‐CA 3
 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

2
(...continued)
the event that the $25,000 judgment is reversed. Because we affirm the district court’s
damages award, we do not consider the Carters’ conditional request for injunctive
relief.

20100478‐CA 4
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

3
We strongly discourage the practice of relying on a ruling transcript as a
substitute for properly drafted findings of fact, at least as that practice was employed in
this case. Although the Utah Rules of Civil Procedure allow for oral findings of fact, see
Utah R. Civ. P. 52(a) (“It will be sufficient if the findings of fact and conclusions of law
are stated orally . . . .”), we do not believe that the rules contemplate what occurred
here. The district court’s oral ruling was clearly not initially intended to serve as the
final reference for the court’s findings of fact, and it seems equally clear that the Carters
and the Dones had substantially different interpretations of the court’s oral ruling. The
proper venue for resolving the parties’ disputes over the meaning of the ruling was in
the district court, where the court could clarify exactly what it intended to find and rule.
By stipulating to the transcript instead of resolving their interpretation disputes in the
district court, the parties have presented us with unclear and ambiguous factual
findings with which to sift their appellate arguments. We determine that we can
adequately address the parties’ arguments despite the flawed method of preserving the
(continued...)

20100478‐CA 5
¶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 still on the
Carters’ property, he’s left it there without retaining his
property. And he’s left it there now without ever retaining
his portion.

The district court also found that, in light of the Dones’ subsequent construction, the
removal of the dirt would now require “[t]hat we basically move buildings, [and] tear
up other things,” including the Dones’ driveway, RV pad, and garage.

3
(...continued)
findings, but that might not be the case in other circumstances, and we strongly
encourage the district court to enter clear findings of fact in the future.

20100478‐CA 6
¶14 The Dones argue that the district court’s finding that their contractors placed the
trespassing dirt without their direction precludes a finding of trespass liability against
them. We agree with the Dones that generally, “the employer of an independent
contractor is not liable for physical harm caused to another by an act or omission of the
contractor or his servants.” See Thompson v. Jess, 1999 UT 22, ¶ 13, 979 P.2d 322 (internal
quotation marks omitted); see also Restatement (Second) of Torts § 409 (1965). We also
agree with the Dones that the district court’s factual findings are insufficient to support
an application of the “retained control” doctrine, an exception to the general rule that
applies where the employer exercises sufficient control over his contractors that he can
be held liable for their tortious actions. See Thompson, 1999 UT 22, ¶ 15. The retained
control doctrine requires the employer’s “active participation” in the contractor’s
actions, see Magana v. Dave Roth Constr., 2009 UT 45, ¶ 24, 215 P.3d 143, “such that [the
contractor cannot] carry out the injury‐causing aspect of the work in its own way,” id.
¶ 27 (alteration in original) (emphasis and internal quotation marks omitted). Although
the Carters assert on appeal that the Dones did retain such control over their
contractors, we see nothing in the district court’s factual findings to support such a
conclusion.

¶15 Thus, under the general rule that employers are not liable for the torts of their
contractors, it may be the case that the Dones are not liable for the initial placement of
the dirt on the Carters’ property.4 However, the Dones ignore other aspects of the

4
We note that the circumstances of this case might well support liability against
the Dones under section 427B of the Restatement (Second) of Torts. That section states,
One who employs an independent contractor to do work
which the employer knows or has reason to know to be
likely to involve a trespass upon the land of another or the
creation of a public or a private nuisance, is subject to
liability for harm resulting to others from such trespass or
nuisance.
Restatement (Second) of Torts § 427B (1965). The district court’s findings recognize that
the Dones had no plans for a retaining wall on their property, but that they knew that
their contractors would be using fill dirt to raise the level of their property. It seems to
us that the use of fill dirt without providing for an appropriate retaining wall, at least
under the circumstances of this case, constitutes an action “likely to involve a trespass
(continued...)

20100478‐CA 7
district court’s findings whereby the court determined that the Dones left the
trespassing dirt on the Carters’ property and failed to ever properly retain their own
property. While the Dones may not have had any obligation to remove the dirt from
the Carters’ property if they were not personally responsible for placing it there, they
had no right to pin the trespassing column of dirt in place by using it as lateral support
for their own property and construction. Yet, this appears to be exactly what happened.

¶16 The district court made no express finding that the Dones were using the
trespassing dirt column as lateral support for their property, but that fact is readily
inferred from the district court’s finding that the trespassing dirt remains sandwiched
between the Carters’ wall and the unrestrained fill dirt on the Dones’ property.
Without a proper retaining wall on the Dones’ property, the only thing holding the
Dones’ fill dirt in place is the column of trespassing dirt. However, not only did the
Dones leave their fill dirt in place, they constructed permanent improvements on their
filled‐in property, relying on the trespassing dirt on the Carters’ property to hold their
own fill dirt and improvements in place.

¶17 This pinning of the trespassing column of dirt against the Carters’ retaining wall
constitutes a separate and distinct act of trespass by the Dones that is independent of
the trespass committed by their contractors. Utah cases have applied the definition of
trespass onto land found in section 158 of the Restatement (Second) of Torts. See, e.g.,
Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1243 (Utah 1998); Mueller v. Allen, 2005
UT App 477, ¶ 35, 128 P.3d 18; U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 41
n.5, 990 P.2d 945. Section 158 provides for trespass liability when a person intentionally
“enters land in the possession of [another], or causes a thing or a third person to do so.”
Restatement (Second) of Torts § 158(a) (1965). “Enters land” is then defined as follows:

Unless the context otherwise indicates, the phrase “enters
land” is for convenience used throughout the Restatement of

4
(...continued)
upon the land of another.” However, Utah case law has not expressly adopted section
427B, see Poteet v. White, 2006 UT 63, ¶ 8, 147 P.3d 439, and it was neither argued to nor
relied upon by the district court. Accordingly, while we recognize its potential
application to the question of the Dones’ liability for placing the dirt on the Carters’
land, we do not rely on section 427B to establish the Dones’ liability in this case.

20100478‐CA 8
 this Subject to include, not only coming upon land, but also
remaining on it, and, in addition, to include the presence
upon the land of a third person or thing which the actor has
caused to be or to remain there.

Id. cmt. b (emphasis added).

¶18 We see no way of interpreting the result of the Dones’ actions in this case as
anything other than their causing the trespassing column of dirt to remain in place on
the Carters’ property. Thus, regardless of whether the Dones could have been held
liable for the initial placement of the dirt, their continuing use of the dirt as lateral
support pins it in place and causes it “to remain there,” and therefore constitutes a
trespass. See id. We recognize that the district court did not expressly rely on this part
of the definition of trespass in finding the Dones liable. Nevertheless, the district
court’s findings regarding the Dones’ failure to remove the dirt or retain their own
property suggest that the court was essentially relying upon this theory to impose
liability, particularly in light of its findings that the Dones had not placed the dirt
themselves. In any event, the district court’s factual findings support the legal
conclusion that the Dones continue to trespass against the Carters by causing the
trespassing column of dirt to remain in place, and we therefore do not disturb the
district court’s ultimate conclusion that the Dones were liable for trespass.5

II. The District Court’s Balancing of the Equities

¶19 The Dones next raise three interrelated arguments challenging the district court’s
decision to balance the equities and award $25,000 in damages to the Carters in lieu of

5
The Dones also raise an argument that they could not be held liable to the
Carters because the Carters had already been made whole through their undisclosed
settlements with both Rock Hard and Anderson. See generally Dawson v. Board of Educ.,
118 Utah 452, 222 P.2d 590, 592–94 (1950) (discussing the general rule that full recovery
for a tort against one tortfeasor bars further recovery for the same tort against others).
However, because the Dones’ act of trespass in causing the dirt to remain on the
Carters’ property is separate and distinct from the contractors’ trespass in placing it
there in the first place, we see little merit to this argument. We further discuss the effect
of the settlements in part II.A of this opinion. See infra ¶¶ 23–25.

20100478‐CA 9
an injunction. Each of these arguments is premised on the underlying assumption that
the district court actually awarded damages under an unjust enrichment cause of action
rather than pursuant to the doctrine of balancing the equities, an assumption that is
apparently prompted by the district court’s comment that it had calculated the damage
award “in the nature of something of unjust enrichment.” We disagree with this
assumption and affirm the district court’s remedy under the balancing‐of‐the‐equities
doctrine.

¶20 The balancing of the equities refers to the “balancing of the opposing parties’
interests” that is usually required prior to the granting of a mandatory injunction to
remove an encroachment upon property. See Johnson v. Hermes Assocs., Ltd., 2005 UT 82,
¶¶ 31–32, 128 P.3d 1151. Under the balancing‐of‐the‐equities test, once an
encroachment has been established and injunctive relief requiring removal of the
encroachment sought,

the district court may in its discretion elect not to grant an
injunction only “where an encroachment does not
irreparably injure the plaintiff; was innocently made; the cost
of removal would be disproportionate and oppressive
compared to the benefits derived from it[;] and [the] plaintiff
can be compensated by damages.”

Carrier v. Lindquist, 2001 UT 105, ¶ 31, 37 P.3d 1112 (emphasis omitted) (quoting
Papanikolas Bros. Enters. v. Sugarhouse Shopping Ctr. Assocs., 535 P.2d 1256, 1259 (Utah
1975)).

¶21 The district court, in crafting the Carters’ remedy against the Dones, expressly
referred to Johnson v. Hermes Associates, Ltd., 2005 UT 82, 128 P.3d 1151, and expressly
applied the balancing‐of‐the‐equities test. We are unconvinced by the Dones’ attempt
to characterize the district court’s balancing of the equities as a conversion of the
Carters’ action for injunctive relief into one for monetary damages under an unjust
enrichment cause of action. The very nature of the balancing‐of‐the‐equities test
presupposes that a party seeking injunctive relief might, in the district court’s discretion
and in limited circumstances, be denied the injunctive relief sought and instead be
compensated with money damages. See generally Carrier, 2001 UT 105, ¶ 31.

20100478‐CA 10
¶22 The Dones do not raise any arguments on appeal that directly challenge the
district court’s application of the balancing‐of‐the‐equities test. Nevertheless, the Dones
raise two issues in their appellate briefing that apply, at least tangentially, to the district
court’s balancing of the equities, even though the arguments are cast in terms of
challenging an award based on an unjust enrichment claim. These arguments are that
the district court’s award of damages is barred by Carters’ prior settlements with Rock
Hard and Anderson, and that the amount of damages awarded by the district court is
unsupported by the evidence. Because these arguments have some application to the
district court’s award based on the balancing of the equities, we address them on their
merits.

A. The Carters’ Settlements with Rock Hard and Anderson

¶23 The Dones argue that the district court’s award of $25,000 in damages in lieu of
injunctive relief constitutes a double recovery for the Carters because the Carters
previously entered into settlement agreements with Rock Hard and Anderson. As
previously noted, see supra ¶ 18 note 5, the Dones’ trespass liability for pinning the
trespassing dirt in place is separate and distinct from Rock Hard and Anderson’s
liability for placing the dirt on the Carters’ property to begin with. We see no reason
that the Carters should not be able to settle for damages against the contractors for
placing dirt on their property and also recover damages against the Dones for causing it
to remain there. See generally Dawson v. Board of Educ., 118 Utah 452, 222 P.2d 590, 592
(1950) (“Having a single cause of action against more than one tort feasor, an injured
party may . . . recover judgment or judgments against one or all, but he can have but
one satisfaction of the cause of action.” (emphasis added)).

¶24 However, even assuming that there could be some overlap between the Dones’
liability and that of their contractors, the settlements between the Carters and Rock
Hard and Anderson are not in the record, and it would be pure speculation on the part
of this court to assume the contents of those settlements. The settlements could have
been complete or partial, and the Carters’ claims could conceivably have been settled
for nuisance value. We simply do not know. And, although the Dones elicited
testimony at trial that the prior settlements had occurred, they do not identify on appeal

20100478‐CA 11
where in the record they either elicited the amounts of the prior settlements or
attempted to do so and were prevented by the district court.6

¶25 In sum, the Dones have not convinced us that the Carters’ prior settlements with
Rock Hard and Anderson preclude or limit the district court’s award in this case. The
settlements and the damages award appear to be for two separate acts of trespass, and
in any event the Dones have failed to establish the amounts of the settlements or
present an argument that they were improperly prevented from doing so. Under these
circumstances, we decline to disturb the district court’s damage award due to the prior
settlements.

B. Amount of Damages

¶26 The Dones also challenge the amount of damages awarded by the district court,
arguing that the Carters put on no evidence as to the amount of their damages and that
the evidence that was presented at trial does not support the $25,000 that the district
court awarded. Under the circumstances of this case, we are unconvinced by these
arguments.

¶27 As to the Dones’ argument that the Carters failed to present evidence of their
damages, we observe that the only relief sought by the Carters at trial was injunctive
relief requiring the Dones to remove the trespassing dirt. It was the Dones who
successfully persuaded the district court that the Carters could obtain adequate legal

6
The only record citation the Dones have provided us reveals that the Carters did
make a relevance objection when Brian Carter was asked whether he had settled his
claims against Rock Hard and Anderson. That objection was overruled, and Carter
answered, “To some extent.” However, the Dones did not then attempt to elicit the
amounts of the settlements. Later, during closing arguments, the Dones argued that the
Carters’ settlements with Rock Hard and Anderson should act as a release for the
Dones. The district court responded, “I don’t know any of the—the details about that
settlement, because there was no discovery done about that, which there clearly could
have been done . . . . [S]o, how do I take that into consideration if I know nothing about
the terms of the settlement?”

20100478‐CA 12
relief through money damages,7 which led the district court to deny the requested
injunction and instead award the Carters damages under the balancing‐of‐the‐equities
doctrine.8

¶28 Further, in light of our determination that the Dones committed a separate act of
trespass by pinning the column of dirt in place on the Carters’ property and against
their retaining wall, it appears that the Carters were likely entitled to the injunctive
relief that they sought. The balancing‐of‐the‐equities doctrine has no application unless
a trespass is innocently made. See Carrier v. Lindquist, 2001 UT 105, ¶ 31, 37 P.3d 1112
(“[T]he benefit of the doctrine of balancing the equities . . . is reserved for the innocent
defendant, who proceeds without knowledge or warning that he is encroaching upon
another’s property rights.” (omission in original) (internal quotation marks omitted)).
Although the district court made no fact findings on this subject, it is hard to imagine a
set of factual circumstances whereby the Dones’ actions in pinning the trespassing dirt
in place with their construction activities could be deemed innocent even if they had no
role in placing the dirt to begin with. The Dones were well aware of the Carters’
objections to the trespassing dirt, and yet they effectively precluded the Carters or
anyone else from removing the dirt by using it as lateral support for their own property
and the construction of their improvements.

7
When the district court announced its ruling, the Dones’ counsel inquired,
“you’re saying that [the Dones are] going to have to pay despite that [the Carters] were
requesting for injunctive relief, you’re giving damages in the amount of $25,000 to the
Carters[?]” The district court responded,
You convinced me that there was—one of the rulings that I
have to make [to award injunctive relief] is that their legal
remedies are inadequate. And you told me that legal
remedies were adequate. So yes, they came here with that. I
did not award that because I said that legal remedies are
adequate and this is what the legal remedy is.
8
The Dones provide no authority or legal analysis as to who bears the burden of
proving damages in such a case, and we decline to undertake that analysis on the
Dones’ behalf. See generally Spencer v. Pleasant View City, 2003 UT App 379, ¶ 20, 80 P.3d
546 (“It is well established that a reviewing court will not address arguments that are
not adequately briefed.” (internal quotation marks omitted)).

20100478‐CA 13
¶29 Under these circumstances, the district court likely erred when it denied the
Carters their requested injunction because it appears that the Carters presented
sufficient evidence to obtain the injunctive relief that they sought. However, we do not
disturb the district court’s decision to award damages instead of an injunction because
the Carters have not asked for that relief on cross‐appeal.9

¶30 The Dones ask us to vacate the damages award because the Carters did not
present sufficient evidence of damages. However, the Carters were not seeking an
award of damages at all and were likely entitled to the injunctive relief that they did
seek. Further, it was the Dones who persuaded the district court to award damages in
lieu of an injunction. Under these circumstances, we are not persuaded that the damage
award must be vacated merely because the Carters did not present evidence to support
this unwanted remedy.

¶31 Looking at the record as a whole, we also disagree with the Dones’ argument
that the record does not contain evidence to support the district court’s $25,000
damages award. Generally, when a court balances the equities and awards damages in
lieu of enjoining a permanent trespass, the measure of damages is the diminution in
property value caused by the trespass. See Richard R. Powell, Powell on Real Property §
68.09[2][b], at 68‐39 to 68‐40 (1998) (“If the court permits a wrongful encroachment to
continue, it generally awards permanent damages. Permanent damages are measured
by the diminution in value of the victim’s land caused by the trespass.”). The Dones
argue that the only evidence of diminution of the Carters’ property value came from the
Dones’ own expert, who testified that the loss in value was $319. Accordingly, the
Dones argue, the Carters’ damages should be limited to that amount.

¶32 We disagree that the $319 testimony is the only appropriate evidence of damages
in this case. The district court also found that the Carters had spent $25,000 in
constructing their retaining wall,10 and it seems clear from both the district court’s

9
As noted above, the Carters have sought injunctive relief on appeal only as an
alternative in the event that the district court’s award of monetary damages is not
upheld.
10
On appeal, the Dones assert that Brian Carter’s actual testimony was that the
wall cost $15,000 to construct, rather than $25,000. This assertion appears to be correct
(continued...)

20100478‐CA 14
ruling and the record on appeal that the Carters’ wall remains permanently buried by
the trespassing dirt that the Dones have trapped against it. Under these circumstances,
where the Dones’ actions made it unnecessary for them to construct their own wall, it
does not seem unreasonable for the district court to have assessed damages in the
amount that it believed the Carters’ wall to have cost, $25,000.11

¶33 Even if the cost of the Carters’ wall was not appropriate evidence of damages in
this case, we would not disturb the district court’s damages award based on the Dones’
arguments. As explained above, it is likely that the Carters were entitled to the
injunctive relief that they sought. The district court made a finding on the cost of such
an injunction to the Dones, stating 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.”
Thus, it appears that any error in the district court’s assessment of damages against the
Dones would be harmless in that the damages awarded were still many thousands of
dollars less than the amount the Dones would have to spend to comply with an
injunction. And, as a practical matter, if we were to reduce the Carters’ damages award
then we would be obligated to consider their conditional cross‐appellate argument that
this matter should remanded for the entry of the requested injunction.

10
(...continued)
based on the trial transcript. However, during closing arguments, the Dones’ counsel
represented to the district court that the Carters’ testimony was that the wall cost
$25,000 to construct. The district court then relied on the $25,000 figure in its oral ruling
without objection by the Dones, and both parties then stipulated to the district court’s
ultimate finding that the wall cost $25,000 to construct. Under these circumstances, the
Dones have failed to preserve an argument that the district court erred by using the
$25,000 figure, and they also likely invited any such error.
11
The district court indicated that it was awarding the $25,000 “in the nature of
something of unjust enrichment.” This comment does suggest that the district court
was basing the $25,000 award on the amount of money that the Dones avoided
spending, rather than the amount of damage caused to the Carters. We express no
opinion on whether that type of analysis is ordinarily appropriate in a balancing‐of‐the‐
equities case. Nevertheless, under the facts of this case, damages for the value of the
buried wall seem appropriate.

20100478‐CA 15
¶34 In sum, both the circumstances of this case and the manner in which it has been
presented to us on appeal are somewhat unique. We nevertheless uphold the district
court’s damage award. The Dones have not persuaded us that there is any error in the
determination of damages, and if they had, then we would need to consider whether
the matter should be remanded for further proceedings that would likely result in the
entry of a much more costly injunction. However, in light of our analysis above and the
Carters’ conditional argument on cross‐appeal, we elect to simply affirm the district
court’s award.

CONCLUSION

¶35 We determine that the facts of this case, as found by the district court, adequately
support the Dones’ personal liability for trespass against the Carters. Although the
Dones may or may not be liable for the actual placement of the dirt on the Carters’
property, their subsequent and continuing use of the dirt for lateral support of their
own property and improvements prevents its removal by the Carters and constitutes a
separate trespass for which the Dones are liable. We also determine that the Dones
have failed to identify any reversible error in the district court’s application of the
balancing‐of‐the‐equities doctrine and the resulting $25,000 damages award. For these
reasons, we affirm the judgment of the district court.

____________________________________
William A. Thorne Jr., Judge

‐‐‐‐‐

¶36 I CONCUR:

____________________________________
Michele M. Christiansen, Judge

‐‐‐‐‐

20100478‐CA 16
McHUGH, Presiding Judge (dissenting):

¶37 I respectfully dissent from the decision of the majority because I am convinced
that the Carters did not establish all of the elements necessary to prevail on a claim of
trespass.1 Furthermore, even if the Carters had proved that the Dones were liable in
trespass, I would reverse the award of damages.

I. Liability

¶38 “The essential element of trespass is physical invasion of the land; [t]respass is a
possessory action.” Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1243 (Utah 1998)
(alteration in original) (internal quotation marks omitted). As the Restatement of Torts
explains, the invasion can be by entering in person or by placing a thing on the land of
another:

One is subject to liability to another for trespass, irrespective
of whether he thereby causes harm to any legally protected
interest of the other, if he intentionally
(a) enters land in the possession of the other, or causes
a thing or a third person to do so, or
(b) remains on the land, or

1
I also would not affirm on an unjust enrichment theory, both because it was not
pleaded or tried and because the trespassing contractors, not the Carters, conferred a
benefit on the Dones by dumping the dirt. See Rawlings v. Rawlings, 2010 UT 52, ¶ 29,
240 P.3d 754 (“A claim for unjust enrichment in Utah requires proof of three elements:
(1) a benefit conferred on one person by another; (2) an appreciation or knowledge by
the conferee of the benefit; and (3) the acceptance or retention by the conferee of the
benefit under such circumstances as to make it inequitable for the conferee to retain the
benefit without payment of its value.” (internal quotation marks omitted)). While the
Carters did confer a benefit on the Dones by leaving the dirt, they did not do so under
circumstances making it inequitable for the Dones to retain the benefit without paying.
Instead, after settling with the actual trespassers, the Carters elected to leave the dirt in
place.

20100478‐CA 17
 (c) fails to remove from the land a thing which he is
under a duty to remove.

Restatement (Second) of Torts § 158 (1965).

¶39 The initial trespass here was the placement of the dirt on the Carters’ property
without their permission. According to the district court’s findings of fact, independent
contractors put the dirt on the Carters’ property. Under established Utah precedent, the
Dones are not liable for physical harm caused by their independent contractor unless
the Dones retained control over the activity that resulted in the harm. See Magana v.
Dave Roth Constr., 2009 UT 45, ¶¶ 22‐23, 215 P.3d 143. Because the district court found
that the Dones did not direct the contractors to place the dirt on the Carters’ property, I
agree with the majority that the Dones cannot be held liable for the initial placement of
the dirt under subsection (a).

¶40 Next, the Dones did not personally enter the Carters’ property. Therefore, they
are not liable for trespass under subsection (b), which applies to the failure of an
individual or individuals to leave property entered without the consent of the possessor
or when the possessor’s consent expires or is revoked. See Restatement (Second) of
Torts § 158 cmts. l‐m.

¶41 However, “‘[t]respass on [l]and’ . . . includes not only entries on land resulting
directly or indirectly from the actor’s act, but also the presence on the land of a thing
which it is the actor’s duty to remove.” Id. ch. 7, topic 1, scope note; see also id. § 158(c)
(explaining that a person may be liable in trespass for failing to remove “a thing which
he is under a duty to remove”). But in the absence of such a duty, there is no obligation
to remove a thing from another person’s property. See U.P.C., Inc. v. R.O.A. Gen., Inc.,
1999 UT App 303, ¶ 42, 990 P.2d 945 (“Because we hold that [the defendant] did not
have a duty to remove the sign’s foundation, it could not be in trespass for refusing to
do so.”). Where the Dones did not place the dirt themselves, or direct the contractors to
dump it on the Carters’ property, they were under no duty to remove it. To hold
otherwise would impose on them the very liability that the Utah Supreme Court has
held does not attach in the absence of retained control. See Magana, 2009 UT 45, ¶¶ 22‐
23. Thus, I would conclude that the Dones are not liable under subsection (c) of the
Restatement. See Restatement (Second) of Torts § 158 cmt. f (“Tort liability is never
imposed upon one who has neither done an act nor failed to perform a duty. Therefore,

20100478‐CA 18
one whose presence on the land is not caused by any act of his own or by a failure on
his part to perform a duty is not a trespasser.”).

¶42 Nevertheless, the majority holds that the Dones are liable because they “enter[ed]
land,” by causing the dirt to remain on the Carters’ property. See id. cmt. b (defining
“enters land” to include the presence of a thing the actor causes to remain on the land).
I respectfully disagree. The district court made no findings that the Dones caused the
dirt to remain on the Carters’ property. There is likewise nothing in the record to
support the majority’s conclusion that the Dones’ improvements somehow trapped the
dirt and caused it to remain. See supra ¶¶ 16, 32. Rather, the district court found that
after the dirt was pushed onto the Carters’ property by the trespassers, the Dones relied
on the resulting change in topography in making improvements on their own property.2
Thus, the Dones neither dumped the dirt nor caused it to remain; they simply took
advantage of the fact that it was there.3 And they did so at their own risk because the
Carters could remove it.

¶43 Indeed, the Carters previously obtained an injunction that required the
contractors to remove a significant quantity of the dirt from the back of the Carters’
house. In addition, Dean Anderson, one of the Dones’ contractors, had to install a
retaining wall at the back of the property to prevent dirt on their property from
sloughing onto the Carters’ property. While extracting the rest of the trespassing dirt
may have resulted in damage to the Dones’ improvements or required them to install
another retaining wall, I do not agree that the Dones’ opportunistic use of the change in

2
There is no evidence that the Dones’ improvements at the front of their property
intrude onto the Carters’ property. See generally Walker Drug Co. v. La Sal Oil Co., 972
P.2d 1238, 1243 (Utah 1998) (“The essential element of trespass is physical invasion of
the land.”).
3
As Rocky John Kay, one of the Dones’ contractors testified, however, the typical
practice in the neighborhood was to follow the “contour of the sidewalk,” by “blending
the[] front yards in together.” Thus, the Carters’ front yard retaining wall was unusual
because the common practice was to level the front yards with fill dirt. Indeed, Kay
stated, “I would have never dreamed there would have been a retaining wall there. . . .
In fact, I don’t . . . recall even seeing one in that neighborhood in the fronts of the
yards.”

20100478‐CA 19
contour resulting from the dirt “caused it to remain” on the Carters’ property. Indeed,
the Carters’ decision to seek relief in the form of an injunction ordering the Dones to
remove the rest of the trespassing dirt suggests that they do not believe it is trapped on
their property by the Dones’ improvements. Thus, I would conclude that the Dones did
not trespass against the Carters by somehow causing the dirt placed by the contractors
to remain on the Carters’ property.

¶44 Furthermore, the Carters have already recovered from the actual trespassers for
the invasion of their possessory interest in the land. The Utah Supreme Court has long
recognized that

[h]aving a single cause of action against more than one tort
feasor, an injured party may proceed against the wrongdoers
either jointly or severally and he may recover judgment or
judgments against one or all, but he can have but one
satisfaction of the cause of action. If the cause has been
satisfied in full, the injured party can proceed no further. He
has recovered all the law permits.

See Dawson v. Board of Educ., 118 Utah 452, 222 P.2d 590, 592 (1950); see also Nelson v.
Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter‐day Saints, 935 P.2d
512, 514‐15 (Utah 1997) (plurality opinion) (citing a prior version of Utah Code section
15‐4‐3 (current version at Utah Code Ann. § 15‐4‐3 (2009))) (noting that where the
plaintiff had already settled with a church’s volunteer, the “plaintiff [could] not recover
a windfall by receiving more than his actual damages” in an action against the church);
Western Steel Co. v. Travel Batcher Corp., 663 P.2d 82, 84 (Utah 1983) (citing Dawson v.
Board of Educ., 118 Utah 452, 222 P.2d 590 (1950), for the proposition that “[t]he law is
well settled that an obligee is entitled to be paid in full but cannot exact double
recovery”).

¶45 The Dones argue that the settling contractors compensated the Carters in full for
the trespass; the Carters deny that they have been fully compensated. “Until both sides
present evidence on th[e] issue” of whether the plaintiff has been fully satisfied by the
prior settlement and the “[factfinder] determines the amount of damages, that question
remains open.” See Nelson, 935 P.2d at 514. If the amount awarded is greater than what
has been paid in settlement, the remaining defendant can be liable “for only the

20100478‐CA 20
difference between the total damage figure and the amount [the settling defendant]
paid pursuant to the agreement with plaintiff.” Id. In contrast, if the total damage
awarded is less than or equal to the amount already collected, the remaining defendant
“will owe nothing [to the plaintiff] regardless of its liability.” Id. at 514‐15. Where “the
cause has been satisfied in full, the injured party can proceed no further. He has
recovered all the law permits.” Dawson, 222 P.2d at 592 (reversing summary judgment
in favor of the plaintiff and remanding for further proceedings).

¶46 Here, the district court never resolved this factual dispute because it did not
“know any of the . . . details about that settlement, because there was no discovery done
about that, which . . . clearly could have been done and [the Dones] brought that up on
the first day of trial.” The majority agrees with that assessment. See supra ¶ 24. While I
am also convinced that the Dones should have tried harder to obtain this information, I
also note that the Dones made some efforts to obtain it. The contractors and the Carters
reached their settlement after the expiration of the discovery period. Although
significant time passed between that settlement and the trial against the Dones, the
Carters did not pursue their claims for most of that time, acting only after the court sent
a Motion to Dismiss for Failure to Prosecute. Not surprisingly, the Dones did nothing
to encourage the Carters to pursue their claims against the Dones.

¶47 The Dones did attempt to present evidence of those settlement details at trial but
were frustrated in their attempts. When counsel for the Dones asked Mr. Carter
whether he had “settled [his] claims against Anderson Excavating and Rock Hard
Construction,” the Carters’ attorney objected on the ground that the information was
irrelevant. Although the district court allowed a yes or no answer, it later sustained the
Carters’ objection to further inquiry on this subject. In answer to whether he had
reached a compromise with the contractors, Mr. Carter eventually testified that he had
settled with them “[t]o some extent,” but purported to be uninformed about the details
of the settlements. When counsel for the Carters objected to “this entire line of
question[ing],” the district court commented that “it doesn’t sound like [Mr. Carter] has
a whole lot of personal knowledge of this,” and sustained the objection. The Dones
then attempted to obtain information about the settlement from Mrs. Carter. Counsel
for the Carters immediately interrupted, seeking a bench conference to discuss the

20100478‐CA 21
objection.4 The parties held the ensuing discussion with the district court off the record,
and neither attorney asked to have it summarized as part of the recorded proceedings.
After that conference, counsel for the Dones narrowly tailored his questions, asking
Mrs. Carter, “Other than the amount . . . that you settled for, is there anything else that
you can recall that was a term or condition of that settlement.” While counsel’s delicacy
in posing the post‐bench‐conference question to Mrs. Carter suggests an attempt to
comply with the district court’s instruction, it was the responsibility of the appellants to
assure that the record forwarded to this court was complete. See State v. Nielsen, 2011
UT App 211, ¶ 4, 257 P.3d 1103 (“An appellant has the burden to provide an adequate
record for review.” (citing Utah R. App. P. 11(e)(2)). Therefore, I agree with the
majority that we cannot determine whether the Carters have received a double recovery
without the amount of the settlement. The Dones have not presented a sufficient record
to prove that the Carters have been made whole.

¶48 Even without those specifics, however, there is no dispute that the Carters
received payment of an undisclosed damage amount from Anderson Excavating and
Rock Hard, dismissed all claims against them, and then elected not to remove the dirt.
Instead, Anderson graded that area of the Carters’ property, and the Carters installed
sprinklers, top soil, and flagstones on it. In my view, the Carters incorporated the
trespassing dirt into their land.

¶49 Section 158 of the Restatement of Torts cross‐references sections 160 and 161 to
explain further trespass liability under subsection (c) of section 158, dealing with the
failure to remove a thing that the person has a duty to remove. See Restatement
(Second) of Torts § 158 cmt. n (1965). In turn, section 161 addresses the “Failure to
Remove Thing Tortiously Placed on Land,” explaining that there is no liability for
allowing the thing to remain if “the possessor has been fully compensated” or “the
possessor has elected to retain the thing on the land as a part of it” or “if he refuses to
permit the actor to enter the land and remove the thing.” See id. § 161 & cmt. d; id. § 160
cmts. l‐m; see also U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 41 n.5, 990 P.2d
945 (discussing section 160, but concluding that it was inapplicable under the facts).

4
This was a trial to the court, so there was no concern that a jury would be
affected by the discussion. Nevertheless, counsel for the Carters indicated concern
about affecting the witness’s testimony.

20100478‐CA 22
The Restatement’s use of the disjunctive “or” indicates that the occurrence of any one of
these circumstances relieves a party of liability for the failure to remove the thing. See
generally State v. Jeffs, 2011 UT 56, ¶ 62.

¶50 As discussed, the Dones cannot prevail on a claim that the matter has been fully
settled due to insufficient evidence on that point. Nevertheless, the evidence plainly
reflects that the Carters elected to retain the dirt on their property “as a part of it” after
the settlement with the trespassers. See Restatement (Second) of Torts § 161 cmt. d.
Consequently, I would hold that they have extinguished any alleged duty of the Dones
to remove the dirt.

II. Damages

¶51 Even if I were convinced that the Dones were liable in trespass, I would reverse
the district court’s damage award.

The plaintiff’s recovery [for trespass] can include
compensation for diminution in the land’s value and
compensation for any personal or property injury that
resulted from the encroachment on the land. 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.

Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1244‐45 (Utah 1998) (citations omitted).
Here, the only evidence of the diminution in the value of the Carters’ property was the
testimony from a certified general appraiser called by the Dones who indicated that the
total reduction in value due to the trespass was $319. Neither party has pointed us to
any other evidence that quantifies the personal or property injury that resulted from the
encroachment on the land. Instead, the district court relied on its recollection that the
Carters’ retaining wall cost $25,000 to build and assumed that the Dones saved a like
amount by relying on the trespassing dirt to build their improvements. However, the
amount that it would cost the Dones to build a retaining wall is not a proper measure of
damages for the invasion of the Carters’ possessory interest. See id. at 1244.

20100478‐CA 23
¶52 Like the majority, I conclude that the district court could properly consider the
cost of the Carters’ retaining wall in applying the balancing of equities test to determine
whether injunctive relief was appropriate. Under that test, “where an encroachment
does not irreparably injure the plaintiff; was innocently made; the cost of removal
would be disproportionate and oppressive compared to the benefits derived from it,
and [the] plaintiff can be compensated by damages; equity may in its discretion elect
not to compel removal.” See Papanikolas Bros. Enters. v. Sugarhouse Shopping Ctr. Assocs.,
535 P.2d 1256, 1259 (Utah 1975); see also Carrier v. Lindquist, 2001 UT 105, ¶ 31, 37 P.3d
1112. After conducting this analysis, the district court determined that the equities
supported an award of damages rather than an order that the Dones remove the dirt
from the Carters’ property. Once it reached that conclusion, the district court was
required to award damages appropriate for an action in trespass not unjust enrichment,
a claim never pleaded or tried. Thus, I agree with the majority that the proper measure
of damages was the diminution in the value of the property caused by the presence of
the dirt. See supra ¶ 31. The only evidence on that point is the appraiser’s testimony
that the property declined in value by $319 as a result of the change in slope caused by
the dirt. Therefore, the award of $25,000 is not supported by the record.

¶53 For all of these reasons, I would reverse the decision of the district court.

____________________________________
Carolyn B. McHugh,
Presiding Judge

20100478‐CA 24