Charles Stinson v. David E. Mensel

07/12/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 21, 2017 Session

CHARLES STINSON, ET AL. v. DAVID E. MENSEL, ET AL.

Direct Appeal from the Chancery Court for Hickman County
No. 12-CV-4872 Deanna B. Johnson, Judge

No. M2016-00624-COA-R3-CV

This appeal involves a dispute between landowners over an easement on Plaintiffs’
property that allows the Defendants to use the easement for ingress and egress to their
homes. Plaintiffs filed suit alleging that the Defendants unlawfully bulldozed the
easement, encroached onto Plaintiffs’ property, and used threats and intimidation to
prevent the Plaintiffs from coming on or using the non-exclusive easement. Defendants
counter-sued, alleging that the Plaintiffs were actually the ones engaging in a campaign
of harassment, and that the Plaintiffs were preventing the Defendants from the peace and
enjoyment of the easement, which they used as their driveway. Following a bench trial,
the trial court concluded that Plaintiffs were liable to Defendants for nuisance, intentional
infliction of emotional distress, and invasion of privacy. The trial court also enjoined the
Plaintiffs from having any use of the easement. Plaintiffs appealed. We affirm in part,
reverse in part, and partially vacate the injunction. Specifically, we affirm the judgment
of the trial court with respect to the nuisance claim, reverse the judgment of the trial court
with respect to the intentional infliction of emotional distress and invasion of privacy
claims, and vacate the permanent injunction against Plaintiffs to the extent that it
prohibits them from the lawful use of their property.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
in part, Reversed in part, Vacated in part, and Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

Edmund Covington Johnston, Franklin, Tennessee, for the appellants, Charles Stinson,
and Glenda Stinson.

Allston Vander Horst, Centerville, Tennessee, for the appellees, David E. Mensel, Mary
F. Mensel, Michael Sabol, and Christine Sabol.
 OPINION

I. FACTS & PROCEDURAL HISTORY

Appellants, Charles Stinson and his wife, Glenda Stinson (collectively “the
Stinsons”) initiated this litigation against their neighbors, Appellees, David E. Mensel
and his wife Mary F. Mensel (collectively “the Mensels”) and Michael Sabol and his
wife, Christine Sabol (collectively “the Sabols”) on October 25, 2012. The Stinsons own
land in Hickman County, Tennessee and have a home on that land. The Stinsons’ land is
subject to an easement, which is a 50-foot non-exclusive easement for utilities and for
ingress and egress to certain neighboring properties (the “Easement”). The deed attached
to the Stinsons’ complaint indicates that the Stinsons’ property line is the center line of
the Easement. The Mensels and the Sabols live on land accessed by the Easement and
use a road built on the Easement as the driveway to their homes. This road/driveway
within the Easement is known as Captain Spence Ridge Road. The Stinsons do not
actually use Captain Spence Ridge Road as the driveway to their home. Captain Spence
Ridge Road was built so that it is in the center of the Easement. The original width of
Captain Spence Ridge Road was approximately eight feet wide, but it has been widened
over the years. The widened road is still within the boundaries of the Easement. Many
of the landowners who use the Easement are parties to a certain contract that governs
their respective responsibilities regarding the maintenance and improvements to the road
within the Easement (the “Driveway Maintenance Agreement”). The Stinsons and their
predecessors in interest chose not to enter into the Driveway Maintenance Agreement.

The controversy in this case appears to have begun in December 2008, when Mr.
Stinson came to believe that the Sabols had stolen some of his chickens that wandered
over to the Sabol property. Mrs. Sabol received a handwritten letter from Mr. Stinson in
her mailbox stating the following:

Your [sic] a theft [sic]. My checken [sic] have made it over to your house.
You never came and told me so you caught them and keep [sic] them now
I’m pisst [sic]. Your [sic] not a good neighbor and your [sic] on my [s—t]
list.

Apparently angry over the chicken incident, the Stinsons thereafter began to harass
the Sabols and the Mensels. The Stinsons’ behavior that followed ranged from petty to
outright dangerous. Mr. Stinson began to constantly put things in or around Captain
Spence Ridge Road and otherwise within the Easement. He placed debris in the
Easement on several occasions, as well as fence posts that were apparently designed to
keep people from driving on the Easement. When the Mensels attempted to put survey
tape on the posts to warn their houseguests of the presence of the posts, Mr. Stinson
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promptly removed the tape. Mr. Stinson also dug a ditch in the roadway that required
drivers to drive more on the Sabols’ side of the road. Then, when a flood came in May
2010, the ditch forced unusually high water and mud down the driveway, resulting in a
considerable amount of erosion.

There were also numerous altercations and screaming matches between the
Stinsons and the Defendants. The police were called on several occasions. When the
Mensels went to speak with Mr. Stinson about removing the fence posts, Mr. Stinson said
that he had been to the courthouse and had taken steps to reduce the size of the Easement.
This was not true. During the discussion, Mr. Stinson became loud, threatening and
intimidating. Mr. Stinson was often described during the trial as aggressive and hostile.
In 2009, Mr. Sabol was clearing weeds on Captain Spence Ridge Road when Mr. Stinson
became angry and told him he could not remove the weeds. Mr. Stinson then cut brush
and left the brush on Captain Spence Ridge Road. He subsequently erected a sign telling
the Sabols to stay on their side of the Easement. Those passing through the Easement
would routinely have to drive around the brush put in place by Mr. Stinson in order to
prevent it from scraping their vehicles. Mr. Sabol frequently removed the brush, and Mr.
Stinson would replace it. On one occasion, Mr. Mensel was working on the Easement
when Mr. Stinson attempted to call out to him and talk to him. Mr. Mensel was wearing
protective earmuffs and could not hear Mr. Stinson. Mr. Stinson apparently thought Mr.
Mensel was intentionally ignoring him, so Mr. Stinson picked up a large rock and began
following Mr. Mensel down the road. The situation was eventually diffused when Mr.
Sabol stepped out into the road so that Mr. Stinson could note his presence. Shortly
thereafter, Mrs. Stinson arrived at the Sabols’ home and began to verbally accost Mrs.
Sabol.

More chaos followed. Mr. Stinson continued his antics of throwing brush onto the
Easement, and at one point Mrs. Stinson went so far as to throw her body in front of a
bulldozer that the Mensels had hired to grade the Easement. The police were called again
and again. These theatrics culminated in a lawsuit filed by the Stinsons against the
Mensels and Sabols. On October 25, 2012, the Stinsons filed a complaint against the
Mensels and Sabols claiming that they had caused the easement to be graded and
bulldozed, encroached onto the Stinsons’ property, and made verbal threats and used
intimidation in order to prevent the Stinsons from coming onto or using the easement.
The Mensels and Sabols filed an answer and counter-complaint on December 19, 2012.
They denied making any threats or intimidating the Stinsons and alleged that the opposite
was actually true.

The case was tried before a judge sitting without a jury on August 10 and 11,
2015. On January 6, 2016, the trial court entered an extensive memorandum and order
dismissing all of the Stinsons’ claims against the Sabols and Mensels and holding the
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Stinsons liable to the Sabols and Mensels for nuisance, invasion of privacy, and
intentional infliction of emotional distress. The court further enjoined the Stinsons from
forever “using, driving on, damaging, or interfering with Captain Spence Ridge Road, or
the maintenance of the same,” and from harassing the Mensels and Sabols. On February
5, 2016, the Stinsons filed a motion to alter or amend the trial court’s judgment, alleging
error in some of the court’s factual and legal conclusions, as well as asserting that the
trial court was “without authority to virtually divest the Plaintiffs from the ability to use
or be upon their property that is part of the subject easement.” The Mensels and Sabols
also filed a post-judgment motion to clarify and amend the trial court’s January 6, 2016
order, but only to generally correct a misspelling and some other inadvertent errors. On
February 25, 2016, the trial court approved the corrections suggested by the Mensels and
Sabols and entered an amended memorandum and order, which republished the original
order with the changes incorporated. On March 6, 2016 the trial court denied the
Stinsons’ motion to alter or amend. The Stinsons timely appealed the trial court’s
judgment to this Court.

II. ISSUES PRESENTED

The Stinsons present the following issues, as slightly reworded, for review on
appeal:

1. Whether the trial court erred in finding the Stinsons liable to the
Mensels and Sabols for nuisance?

2. Whether the trial court erred in finding the Stinsons committed the
tort of invasion of privacy?

3. Whether the trial court erred in finding the Stinsons committed the
tort of intentional infliction of emotional distress?

4. Whether the trial court erred in permanently enjoining the Stinsons
from coming onto, using, driving on, damaging, or interfering with Captain
Spence Ridge Road for the entire 50-foot width of the Easement, or the
maintenance of the same?

III. STANDARD OF REVIEW

This case was tried by the trial court without a jury. We therefore review the trial
court’s findings of fact de novo with a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. 13(d); Armbrister v. Armbrister, 414 S.W.3d
685, 692 (Tenn. 2013). Also, because the trial court has the opportunity to observe the
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demeanor of the witnesses and hear the in-court testimony, we afford considerable
deference to the trial court’s credibility determinations and the weight given to oral
testimony. Andrews v. Andrews, 344 S.W.3d 321, 339 (Tenn. Ct. App. 2010). We
review the trial court’s conclusions of law de novo with no presumption of correctness.
Hyneman v. Hyneman, 152 S.W.3d 549, 553 (Tenn. Ct. App. 2003).

IV. DISCUSSION

We begin our discussion by noting that there appears to have been a fair amount of
confusion and disagreement between the parties as to the nature of the ownership and
rights each has in the Easement. In their answer and counter-complaint, the Mensels and
Sabols asserted that the Driveway Maintenance Agreement “controls the maintenance of
Captain Spence Ridge Road,” and that the Stinsons have no Authority to do any
maintenance to the road. At trial, there was testimony that pointed to Mr. Stinson’s belief
that the land subject to the Easement was in actuality his and his alone, and therefore he
could control what transpired within the Easement.

“An easement is a right an owner has to some lawful use of the real property of
another.” Cellco Partnership v. Shelby County, 172 S.W.3d 574, 588 (Tenn. Ct. App.
2005) (quoting Pevear v. Hunt, 924 S.W.2d 114, 115 (Tenn. Ct. App. 1996)). There are
two broad classes of easements: easements in gross and easements appurtenant. Id. An
easement in gross is simply a personal interest or right to use the land of another that does
not benefit another property. Id. Easements appurtenant, which is the type of easement
involved in this case, involves two tracts of land, including “a dominant tenement, and a
servient tenement. The dominant tenement benefits in some way from the use of the
servient tenement.” Id. In the case at hand, the Mensels and the Sabols, among others,
own the dominant tenements, and the Stinsons own the servient tenement. The Easement
gives the dominant tenements, the Mensels and the Sabols, the right to pass over the
servient tenement, owned by the Stinsons, for purposes of ingress and egress to their own
properties without being considered trespassers by virtue of their presence on the
Stinsons’ land.

Where the two interests intersect, the dominant and servient tenements each have
restrictions on their use of an easement. As holders of the dominant tenement, the
Mensels’ and the Sabols’ “use of the easement must be confined to the purpose stated in
the grant of the easement,” which is ingress and egress. Shell v. Williams, No. M2013-
00711-COA-R3-CV, 2014 WL 118376, at *6 (Tenn. Ct. App. Jan. 14, 2014) (internal
citations omitted). Furthermore, “[a] principle which underlines the use of all easements
is that the owner of an easement cannot materially increase the burden of it upon the
servient estate or impose thereon a new and additional burden.” Id. With respect to the
rights of the Stinsons as owners of the servient estate, this Court has held the following:
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 Just as the owners of the dominant estate have restrictions on their use of an
easement . . . so too do the owners of the servient estate. . . .

The owner of the servient estate, while he may use his property in any
manner consistent with the existence of the easement, . . . cannot make any
alterations to his property by which the enjoyment of the easement will be
materially interfered with. . . .

The owner of the servient estate has no legal right to interfere with an
easement holder’s enjoyment and use of the easement.

Id. at *8-9 (internal citations omitted).

To be clear, the Stinsons’ decision to not enter into the Driveway Maintenance
Agreement does not curb their interest in the property or their ability to lawfully use and
maintain the Easement. By the same token, the Stinsons cannot prohibit the dominant
tenements from coming upon or making repairs to the Easement that are reasonably
necessary for its express use.

A. Nuisance

We now turn to the specific issues raised as error on appeal. The Stinsons first
allege that the trial court erred in holding that they were liable to the Mensels and Sabols
for nuisance. “A nuisance has been defined as anything which annoys or disturbs the free
use of one’s property, or which renders its ordinary use or physical occupation
uncomfortable.” Sadler v. State, 56 S.W.3d 508, 511 (Tenn. Ct. App. 2001) (quoting
Pate v. City of Martin, 614 S.W.2d 46, 47 (Tenn. 1981)). “[U]nder Tennessee law, a
nuisance may arise from lawful activities where it disturbs the free use of another’s
property or renders its occupation unreasonably uncomfortable.” Pearson v. Ross, No.
W2011-00321-COA-R3-CV, 2011 WL 6916194 at *6 (Tenn. Ct. App. Dec. 28, 2011).

The trial court found, and the record supports, several instances where the Stinsons
created a nuisance by interfering with the Mensels’ and the Sabols’ free and lawful use of
the Easement. A non-exclusive list of the offensive behavior was chronicled by the trial
court as follows:

 “There were no drainage problems on Captain Spence Ridge Road;
so, there was no need for Mr. Stinson to put in the ditch. The ditch
was a nuisance. In fact, the ditch actually drained the opposite way

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 of the slope. Furthermore, there was no need for the brush or the
posts erected by Mr. Stinson.”

 “On May 18, 2011, Mr. Stinson placed debris in the road. He also set
fence posts to keep people from driving on his land. He removed the
fence posts to allow the Mensels to get a trailer off their land. Once
the trailer was removed, Mr. Stinson put the fence posts back in the
ground. The police told Mr. Stinson he needed to remove the fence
posts or he would be charged with a crime. Accordingly, Mr. Stinson
has removed the fence posts.”

 “Also in 2009, Mr. Sabol had tried to clear weeds from the North side
of Captain Spence Ridge Road. Mr. Stinson became angry and told
him he could not remove the weeds. Mr. Stinson cut brush on the
driveway side of his fence and left a mess in Captain Spence Ridge
Road. Later he put a large, wooden hand-lettered sign telling the
Sabols to stay on their side of the Easement.”

 “Also, Mr. Stinson dug a trench in the roadway which forced drivers
to drive more on to the Sabols’ side of the road. When the May 2010
flood hit the area, the ditch forced an unusually high amount of water
and mud down the driveway hill, resulting in considerable erosion
damage from the top of the hill where the ditch stopped at Ben Fly
Road. This erosion left an expanse of mud instead of gravel.”

 “Once in 2009, Mr. Sabol had a confrontation with Mr. Stinson. Mr.
Sabol was weed eating on his side of Captain Spence Ridge Road
approximately two feet over from tire marks. Mr. Stinson told Mr.
Sabol ‘leave my side alone.’ Mr. Stinson was extremely upset.
Then, Mr. Stinson began piling brush all the way down the road and
never said why he was doing so. The branches stuck out and scraped
vehicles as they passed by the branches. Mr. Sabol and others would
have to drive around the brush to avoid their vehicles being scraped.
Mr. Sabol would have to remove brush from the road at least once a
week.”

 “The ditch that Mr. Stinson dug made the water go down the road
onto Mr. Sabol’s driveway. It created two to three inches of mud and
washed away the gravel that the Sabols and Mensels had put on
Captain Spence Ridge Road.”

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  “On August 28, 2011, Mrs. Sabol found Mr. Stinson cutting a tree
into pieces that had fallen from his property onto his fence and the
Easement road. Mrs. Sabol asked Mr. Stinson if he was going to
remove the tree. Mr. Stinson responded ‘none of your f––ng
business.’ Mrs. Sabol left to get a camera. When she came out of her
house with the camera to take photographs of what Mr. Stinson was
doing, Mr. Stinson drove away quickly. He then reversed quickly
toward Mrs. Sabol as if to hit her, but stopped right before doing so
and drove away. Later that day, Mrs. Stinson walked down Captain
Spence Ridge Road to a spot in front of the Sabols’ home and
screamed and cursed for Mrs. Sabol to come out of the house.”
In light of the foregoing, the court concluded the following:

The Mensels and Sabols claim that the Stinsons’ conduct amounts to
intentional nuisance. The proof at trial was the Mensels and Sabols lived in
their residences for years without even meeting the Stinsons. They had
absolutely no problems. But, everything changed in 2008, when Mr. Stinson
came to mistakenly believe the Sabols had stolen Mr. Stinson’s chickens.
Thereafter, both Mr. and Mrs. Stinson launched a campaign of harassment
and intimidation on both the Sabols and the Mensels which lasted several
years. The Stinsons interfered with the Sabols’ and the Mensels’ enjoyment
and use of the Easement (Captain Spence Ridge Road). The Stinsons
annoyed and disturbed the Mensels’ and Sabols’ free use of their property.

On appeal, the Stinsons argue that “there is absolutely no proof that Mr. and Mrs.
Stinson interfered with the use and enjoyment of Defendants[’] property” and that the
Mensels and Sabols were “hypersensitive” to the Stinsons’ behavior. After carefully
reviewing the record, we hold that the evidence does not preponderate against the trial
court’s findings regarding the aforementioned incidents, and we agree that this conduct
rises to the level of a nuisance. We therefore affirm the trial court’s judgment that the
Stinsons are liable to the Mensels and Sabols for nuisance.

B. Invasion of Privacy

The trial court further held that the Stinsons committed the tort of invasion of
privacy, holding:

The Mensels and Sabols also claim the Stinsons committed the tort of
invasion of privacy. To prevail on a claim of invasion of privacy, the
Mensels and Sabols must show that the Stinsons engaged in conduct which:

8
 intentionally intrude[ed] physically or otherwise, upon the
solitude or seclusion of another or his private affairs or
concerns, . . . if the intrusion would be highly offensive to a
reasonable person.

Restatement (Second) of Torts 652B (1977); Givens v. Mullikin, 75 S.W.3d
383, 411-12 (Tenn. 2002).

In the instant case, Mr. Stinson placed an offensive and threatening
note in the Sabols’ mailbox. Mrs. Stinson went into the Sabols’ yard and
screamed and cussed at Mrs. Sabol and threatened her. Moreover, Mr.
Stinson placed debris on Captain Spence Ridge Road, dug a ditch in the
road, and removed gravel from the potholes.

In addition, Mr. Stinson followed Mr. Mensel in an offensive manner
with a soft-ball sized rock held above his head. Also[,] Mr. and Mrs.
Stinson obstructed the bulldozer work Contractor Lanny Clifton was doing
for the Mensels. This behavior amounted to an invasion of the privacy
rights of the Mensels and Sabols.

“‘One who intentionally intrudes, physically or otherwise, upon the solitude or
seclusion of another or his private affairs or concerns, is subject to liability for invasion
of privacy, if the intrusion would be highly offensive to a reasonable person.’” Roberts v.
Essex Microtel Assocs., 46 S.W.3d 205, 211 (Tenn. Ct. App. 2001) (quoting Restatement
(Second) of Torts § 652B). However, this Court in Roberts also noted the comments to
Section 652B of the Restatement (Second) of Torts, which provide:

B. The invasion may be by physical intrusion into a place in which the
plaintiff has secluded himself, as when the defendant forces his way into
the plaintiff’s room in a hotel or insists over the plaintiff’s objection in
entering his home. It may also be by the use of the defendant’s senses, with
or without mechanical aids, to oversee or overhear the plaintiff’s private
affairs, as by looking into his upstairs windows with binoculars or tapping
his telephone wires. It may be by some other form of investigation or
examination into his private concerns, as by opening his private and
personal mail, searching his safe or his wallet, examining his private bank
account, or compelling him by a forged court order to permit an inspection
of his personal documents. The intrusion itself makes the defendant subject
to liability, even though there is no publication or other use of any kind of
the photograph or information outlined.
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 C. The defendant is subject to liability under the rule stated in this
Section only when he has intruded into a private place, or has otherwise
invaded a private seclusion that the plaintiff has thrown about his
person or affairs. Thus there is no liability for the examination of a public
record concerning the plaintiff, or of documents that the plaintiff is required
to keep and make available for public inspection. Nor is there liability for
observing him or even taking his photograph while he is walking on the
public highway, since he is not then in seclusion, and his appearance is
public and open to the public eye. Even in a public place, however, there
may be some matters about the plaintiff, such as his underwear or lack of it,
that are not exhibited to the public gaze; and there may still be invasion of
privacy when there is intrusion upon these matters.

Restatement (Second) of Torts § 652B, cmt. B, C (emphasis added).

The activity described by the trial court cannot be deemed to be the basis for a
claim of invasion of privacy. An essential element of an invasion of privacy claim is that
the offender must have intruded upon the solitude or seclusion of another. The Mensels
and Sabols cannot have reasonably expected solitude or seclusion on the land
encompassing the Easement that they shared with the Stinsons and others, nor could they
expect solitude or seclusion with respect to a neighbor leaving a note, as offensive as it
may have been to them, in their mailbox. Even with respect to the incidents where Mrs.
Stinson allegedly screamed and used profanity on the Sabols’ and Mensels’ property, the
testimony in the record does not indicate that the Sabols or Mensels had secluded
themselves in a private place, as contemplated by the Restatement.

Accordingly, we must reverse the trial court’s judgment that the Stinsons
committed the tort of invasion of privacy.

C. Intentional Infliction of Emotional Distress

The trial court also found that the Stinsons were liable to the Mensels and Sabols
for intentional infliction of emotional distress. In order to prevail on a claim of
intentional infliction of emotional distress, “a plaintiff must prove that the defendant’s
conduct was either intentional or reckless, was so outrageous that it is not tolerated by a
civilized society, and caused a serious mental injury to plaintiff.” Rogers v. Louisville
Land Co., 367 S.W.3d 196, 201 (Tenn. 2012). According to the trial court, all three of
these elements were satisfied. As to the first two elements, the trial court stated that the
“Stinsons’ conduct clearly was intentional. Also, the Stinsons’ conduct was so
outrageous that it is not tolerated in a civil society.” Even assuming that these first two
10
requirements were satisfied, after careful review of the record we cannot conclude that
Mr. Sabol, Mrs. Sabol, Mr. Mensel, or Mrs. Mensel presented proof that they suffered
serious emotional injury required to sustain a claim for intentional infliction of emotional
distress. With respect to this third element, the trial court found:

[T]he Stinsons’ conduct caused serious mental injury. Mrs. Sabol will no
longer go to her mailbox or go outside unless her husband is home. Mr.
Sabol and Mr. Mensel will not work on the Easement unless the other is
present. Mr. Sabol was verbally attacked in his own yard. M[r]s. Mensel is
afraid of both Mr. and Mrs. Stinson. The Mensels and the Sabols have
suffered emotional distress.

To aid courts in determining whether a plaintiff has suffered “severe mental
injury” for purposes of the tort of intentional infliction of emotional distress, the
following nonexclusive list of factors is relevant to determining whether said injury
exists:

(1) Evidence of physiological manifestations of emotional distress, including
but not limited to nausea, vomiting, headaches, severe weight loss or gain,
and the like;

(2) Evidence of psychological manifestations of emotional distress,
including but not limited to sleeplessness, depression, anxiety, crying spells
or emotional outbursts, nightmares, drug and/or alcohol abuse, and
unpleasant mental reactions such as fright, horror, grief, shame, humiliation,
embarrassment, anger, chagrin, disappointment, and worry;

(3) Evidence that the plaintiff sought medical treatment, was diagnosed with
a medical or psychiatric disorder such as post-traumatic stress
disorder, clinical depression, traumatically induced neurosis or psychosis, or
phobia, and/or was prescribed medication;

(4) Evidence regarding the duration and intensity of the claimant’s
physiological symptoms, psychological symptoms, and medical treatment;

(5) Other evidence that the defendant’s conduct caused the plaintiff to suffer
significant impairment in his or her daily functioning; and

(6) In certain instances, the extreme and outrageous character of the
defendant’s conduct is itself important evidence of serious mental injury.

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Rogers, 367 S.W.3d at 209-10. Furthermore, in the context of intentional infliction of
emotional distress, a “plaintiff may present this evidence by his or her own testimony, the
testimony of lay witnesses acquainted with the plaintiff such as family, friends, and
colleagues, or by the testimony of medical experts.” Id.

There was very little consideration given to any actual mental injury in this case
by either the parties or the trial court. The trial court’s order is virtually devoid of any
discussion or analysis of the aforementioned factors. Only a handful of questions during
the two day trial of this matter related to the mental impact that this ordeal has had on the
Mensels and Sabols. The testimony that was elicited at trial amounted to the Mensels’
and the Sabols’ general fear of engaging with the Stinsons and the precautions they have
taken to ensure that they are not left alone with them. The record actually speaks more to
the mental angst of the Stinsons than anyone else, as it includes the medical records of
Mr. and Mrs. Stinson, not those of the Sabols or the Mensels. Although we sympathize
with the hardship that the Stinsons’ harassment has caused the Mensels and Sabols, the
evidence preponderates against the trial court’s finding of serious mental injury in this
case. Accordingly, we reverse the trial court’s judgment that the Stinsons are liable to the
Sabols and the Mensels for intentional infliction of emotional distress.

D. Permanent Injunction

After finding that the Stinsons are liable to the Mensels and Sabols for nuisance,
invasion of privacy, and intentional infliction of emotional distress, the trial court
imposed the following injunction:

[T]he Stinsons are forever prohibited from coming onto, using, driving on,
damaging, or interfering with Captain Spence Ridge Road for the entire 50-
foot width of the easement, or the maintenance of same. The Stinsons are
also enjoined from harassing the Mensels and Sabols, or interfering with
their personal enjoyment of Captain Spence Ridge Road. Any reference in
this Order to Captain Spence Ridge Road is a reference to the entire 50-foot
wide easement known as Captain Spence Ridge Road.

Portions of this injunction essentially divest the Stinsons of any use or interest in their
property that is subject to the Easement, prohibiting even lawful activity thereon.
“Injunctions, however, are drastic remedies that should be used only if no other adequate
relief is available.” West v. Luna, No. 01A01-9707-CH-00281, 1998 WL 467106, at *5-6
(Tenn. Ct. App. Aug. 12, 1998) (citing Butts v. City of South Fulton, 565 S.W.2d 879,
882 (Tenn. Ct. App. 1977). In general, “[i]njunctions will not issue merely to relieve the
fears or apprehensions of an applicant.” Wallace v. Andersonville Docks, Inc., 489
S.W.2d 532, 535 (Tenn. Ct. App. 1972) (internal citations omitted). “They should be
12
used sparingly if the nuisance is being created by an otherwise lawful activity, and they
should be limited to the acts causing the nuisance.” West, 1998 WL 467106, at *5-6.

Easement rights are not so great that they completely deprive the owner of the
servient estate of any use or enjoyment of his or her property.

The rights of neither party are “absolute, irrelative, and uncontrolled,
but are so limited, each by the other, that there may be a due and reasonable
enjoyment of both the easement and the servient estate.” Carroll v. Belcher,
1999 WL 58597, at *1 (Tenn. Ct. App. Feb.9, 1999) (quoting 10
TENNESSEE JURISPRUDENCE, Easements § 6 (1994)). The rights of
each party must be examined in the context of the entire situation and should
be balanced so as to protect the rightful use by each party of his or her
interest. Rogers v. Roach, No. M2011-00794-COA-R3-CV, 2012 WL
2337616, at *8-9 (Tenn. Ct. App. June 19, 2012).

It is well settled that, because an easement is limited to the purposes
for which it was created, an owner of an easement “cannot materially
increase the burden of it upon the servient estate or impose thereon a new
and additional burden.” Adams v. Winnett, 156 S.W.2d at 357 (quoting 17
AM. JUR. 996, sec.98); Shew v. Baugus, 227 S.W.3d [569, 576-77 (Tenn.
Ct. App. Feb. 20, 2007)].

....

The owners of the land under and surrounding an easement, the servient
estate, while he may use his property in any manner consistent with the
existence of the easement, . . . cannot make any alterations in his property
by which the enjoyment of the easement will be materially interfered with
and has no legal right to interfere with an easement holder’s enjoyment and
use of the easement. Charles v. Latham, No. E2003-00852-COA-R3-CV,
2004 WL 1898261 (Tenn. Ct. App. Aug. 25, 2004)(citing Cooper v. Polos,
898 S.W.2d 237, 242 (Tenn. Ct. App. 1995)). See also 28A
C.J.S. Easements § 175 (1996).

Keenan v. Fodor, No. M2012-00330-COA-R3-CV, 2014 WL 793713, at *7 (Tenn. Ct.
App. 2014).

To the extent the trial court issued an injunction that prohibits the Stinsons from
accessing property they own, albeit servient to the Easement, such an injunction was
improper. The Stinsons cannot be “forever prohibited from coming onto, using, [or]
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driving on” property they own. Since a portion of their property is, in fact, a servient
estate, they can be enjoined from damaging or interfering with the Easement, including
the use or maintenance of the Easement. Accordingly, we vacate the trial court’s
injunction with respect to the Stinsons’ access and use of the servient estate.

E. Evidence of Assault

After discussing the alleged errors we have analyzed above, the Stinsons’
appellate brief presents a fifth issue for this Court’s consideration, which states that “the
trial court erred in admitting into evidence the fact that Mr. Stinson has been previously
convicted of the offense of simple assault, and admitted into evidence a copy of the
conviction.” This “issue,” however, to which the Stinsons devote less than one page of
their brief, was not properly designated as an issue for our review in accordance with the
Tennessee Rules of Appellate Procedure. Rule 27(a) of the Tennessee Rules of Appellate
Procedure specifies that the “brief of the appellant shall contain under the appropriate
headings and in the order here indicated . . . (4) A statement of the issues presented for
review.” Tenn. R. App. P. 27 (emphasis added). The statement of issues in the Stinsons’
appellate brief does not at all refer to any issue regarding the trial court’s admission of
Mr. Stinson’s conviction for assault into evidence. Our Tennessee Supreme Court has
consistently held that “an issue may be deemed waived when it is argued in the brief but
is not designated as an issue in accordance with Tenn. R. App. P. 27(a)(4).” Hodge v.
Craig, 382 S.W.3d 325, 335 (Tenn. 2012). The Stinsons have waived any issue related to
the evidence of Mr. Stinson’s conviction for assault by failing to appropriately designate
it as an issue for review on appeal in accordance with Rule 27(a)(4).

IV. CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court with respect to
the nuisance claim, reverse the judgment of the trial court with respect to the intentional
infliction of emotional distress claim and invasion of privacy claims, and vacate the
permanent injunction against the Stinsons to the extent that it prohibits them from the
lawful access and use of their property. Costs of this appeal are taxed one half against the
Appellees, David E. Mensel and Mary F. Mensel, Michael Sabol and Christine Sabol, and
one-half against the Appellants, Charles Stinson and Glenda Stinson, and their surety, for
which execution may issue if necessary.

_________________________________
BRANDON O. GIBSON, JUDGE

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