                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               November 24, 2014 Session

                BETSY STIBLER v. THE COUNTRY CLUB, INC.

                Appeal from the Chancery Court for Hamblen County
                 No. 2013-CV-435    Douglas T. Jenkins, Chancellor


               No. E2014-00743-COA-R3-CV-FILED-MARCH 9, 2015


Betsy Stibler (APlaintiff@) sued The Country Club, Inc. (ADefendant@) alleging, among other
things, that Defendant had created a nuisance by planting trees on Defendant=s real property
adjacent to Plaintiff=s real property. Defendant filed a motion for summary judgment. After
a hearing the Chancery Court for Hamblen County (Athe Trial Court@) granted Defendant
summary judgment after finding and holding that Plaintiff could not prove that the trees
planted by Defendant constituted a nuisance. Plaintiff appeals to this Court. We find and
hold that there are no genuine disputed issues of material fact and that Defendant is entitled
to judgment as a matter of law, and we affirm.

 Tenn. R. App. P 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
                                 Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY,
J., and D. KELLY THOMAS, JR., SP.J., joined.

Betsy Stibler, Morristown, Tennessee, pro se appellant.

Lauren Armstrong Carroll, Morristown, Tennessee, for the appellee, The Country Club, Inc.

                                         OPINION

                                        Background

              Plaintiff owns real property located in Hamblen County, Tennessee. Defendant
owns real property containing a golf course adjacent to Plaintiff=s property. In the fall of
2013 Defendant planted trees in a number of areas on its own property, which included
Green Giant trees and Skip Laurel trees planted on the portion of Defendant=s property which
lies behind Plaintiff=s house. The trees were planted on Defendant=s property, not on
Plaintiff=s property, and no portion of the trees encroach upon Plaintiff=s property. The trees
have caused no physical damage to Plaintiff=s property.

                Plaintiff filed the instant suit in October of 2013 alleging that Defendant was in
violation of subdivision restrictions and that Defendant had created a nuisance by planting
the trees obstructing Plaintiff=s view of the golf course. Specifically, Plaintiff alleged, in
part, that the trees were planted Afor the purpose of annoying Plaintiff and decreasing the
property value of Plaintiff,@ and that APlaintiff is being deprived of her right/easement
appurtenance of >enjoyment of all persons owning lots in said sub-division= of the park space
(ie [sic] golf course) as provided by the [subdivision restrictions].@

                  In pertinent part, the applicable subdivision restrictions state:

                6- No noxious or offensive trade or activity shall be carried on upon any
         lot nor shall anything be done thereon which may be or may become an
         annoyance or nuisance to the neighborhood.

                                                       ***

                 7- Any park spaces as shown upon the plat, will not be built upon but
         preserved as ornamental park spaces for the enjoyment of all persons owning
         lots in said sub-division.1

              Defendant filed a motion for summary judgment. After a hearing, the Trial
Court granted Defendant summary judgment after finding and holding that Plaintiff could not
prove that the trees at issue constituted a nuisance. Plaintiff appeals to this Court.

                                                   Discussion

               Although not stated exactly as such, Plaintiff raises three issues on appeal: 1)
whether the Trial Court erred in not finding and holding that Defendant was in violation of
the subdivision restrictions; 2) whether the Trial Court erred in finding and holding that
Plaintiff could not prove that the trees constitute a nuisance; and, 3) whether the Trial Court

         1
           The subdivision restrictions contain two paragraphs numbered >7.= These two paragraphs appear in
the document one right after the other in a manner that suggests a simple numbering error occurred. The first
paragraph >7= addresses structures which may not be utilized as a residence including, among other things,
trailers, tents, shacks, barns, etc. This first paragraph >7= has no relevance to the issues before us in this appeal.
 As such, when we refer to paragraph >7= in this Opinion, we refer to the paragraph >7= as quoted fully in the
body of this Opinion.

                                                          2
erred in denying Plaintiff=s motion to compel deposition. Plaintiff also filed a motion for
consideration of post-judgment facts requesting this Court to take notice of the alleged post-
judgment facts that shrubs planted by Defendant Aalong the adjoining property line of
Plaintiff@ had died and been replaced with Green Giant trees.

               We first address Plaintiff=s motion for consideration of post-judgment facts.
Defendant stated during oral argument before this Court that it did not oppose Plaintiff=s
motion for consideration of these post-judgment facts. We, therefore, grant Plaintiff=s motion
for consideration of post-judgment facts. These facts, however, do not change the outcome
of this appeal.

              With regard to summary judgments, this Court explained in Estate of Boote v.
Roberts:

              The trial court=s resolution of a motion for summary judgment is a
       conclusion of law, which we review de novo on appeal, according no
       deference to the trial court=s decision. Martin v. Norfolk S. Ry. Co., 271
       S.W.3d 76, 84 (Tenn. 2008). Summary judgment is appropriate only when the
       moving party can demonstrate that there is no genuine issue of material fact,
       and that it is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04;
       see Hannan v. Alltel Publ=g Co., 270 S.W.3d 1, 5 (Tenn. 2008); Byrd v. Hall,
       847 S.W.2d 208, 214 (Tenn. 1993).

              This action was filed [after July 1, 2011]. Therefore, the trial court was
       required to apply the summary-judgment standard set forth in Tennessee Code
       Annotated ' 20-16-101. That statute provides:

                     In motions for summary judgment in any civil action in
              Tennessee, the moving party who does not bear the burden of
              proof at trial shall prevail on its motion for summary judgment if
              it:
                              (1) Submits affirmative evidence that
                     negates an essential element of the nonmoving
                     party=s claim; or
                              (2) Demonstrates to the court that the
                     nonmoving party=s evidence is insufficient to
                     establish an essential element of the nonmoving
                     party=s claim.

       Tenn. Code Ann. ' 20-16-101 (Supp. 2012).
                                              3
Estate of Boote v. Roberts, No. M2012-00865- COA-R3-CV, 2013 Tenn. App. LEXIS 222,
at **24-25 (Tenn. Ct. App. March 28, 2013), no appl. perm. appeal filed (footnotes omitted).

               We first consider whether the Trial Court erred in not finding and holding that
Defendant was in violation of the subdivision restrictions. In pertinent part, the subdivision
restrictions state:

              6- No noxious or offensive trade or activity shall be carried on upon any
       lot nor shall anything be done thereon which may be or may become an
       annoyance or nuisance to the neighborhood.

                                            ***

               7- Any park spaces as shown upon the plat, will not be built upon but
       preserved as ornamental park spaces for the enjoyment of all persons owning
       lots in said sub-division.

              Plaintiff argues in her brief on appeal that the subdivision restrictions provide
that A[Defendant] should be prohibited from interfering with [Plaintiff=s] enjoyment of her
property by changing the very character and nature of her home as a golf course view
property.@ Plaintiff asserts that because the trees are a nuisance, they are prohibited by the
subdivision restrictions. We will address the argument regarding nuisance fully below when
we discuss whether the Trial Court erred in finding that the trees did not constitute a
nuisance.

               Plaintiff also asserts that paragraph 7 of the subdivision restrictions mandate
that the park spaces, which Plaintiff asserts includes the golf course, must be preserved for
the Aenjoyment of all persons owning lots in said sub-division.@ Plaintiff=s interpretation of
paragraph 7 of the subdivision restrictions, however, is not supported by the plain language
of the restrictions. The golf course is designated on the plat as exactly that, AGOLF
COURSE,@ and is not designated on the plat as a Apark space[].@ Plaintiff=s desire that the
golf course be treated as a park space even though it is not designated as such on the plat is
contrary to the very paragraph 7 that Plaintiff relies upon. Further, nothing within the
subdivision restrictions guarantees Plaintiff an unobstructed view of the golf course. Nor is
there any provision within the subdivision restrictions that prohibits Defendant from planting
trees on its own property. This issue is without merit.

               We next consider whether the Trial Court erred in finding and holding that the
trees did not constitute a nuisance. As our Supreme Court has explained:
                                              4
        The right to the free use and enjoyment of property has long been
recognized as an important facet of ownership. However, this right is not an
unrestricted license to use property without regard for the impact of the use on
others. The legal maxim C sic utere tuo ut alienum non laedas C directs
landowners not to use their property in a way that injures the lawful rights of
others. Thus, since the earliest days, Tennessee=s courts have recognized that
A[e]very individual, indeed, has a right to make the most profitable use of that
which is his own, so that he does not injure others in the enjoyment of what is
theirs.@ Neal v. Henry, 19 Tenn. (Meigs) 17, 21 (1838). This longstanding
principle is the cornerstone of a common-law nuisance claim. 1 Kenneth H.
Young, Anderson=s American Law of Zoning ' 3.03 (4th ed. 1995).

       A common-law nuisance is a tort characterized by interference with the
use or enjoyment of the property of another. W. Page Keeton et al., Prosser &
Keeton on the Law of Torts ' 87, at 619 (5th ed. 1984) [hereinafter AProsser &
Keeton@]. A nuisance is anything that annoys or disturbs the free use of one=s
property or that renders the property=s ordinary use or physical occupation
uncomfortable. It extends to everything that endangers life or health, gives
offense to the senses, violates the laws of decency, or obstructs the reasonable
and comfortable use of the property. Pate v. City of Martin, 614 S.W.2d 46,
47 (Tenn. 1981); Caldwell v. Knox Concrete Prods., Inc., 54 Tenn. App. 393,
402, 391 S.W.2d 5, 9 (1964).

        As long as an interference with the use or enjoyment of property is
substantial and unreasonable enough to be offensive or inconvenient, virtually
any disturbance of the use or enjoyment of the property may amount to a
nuisance. Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 365 (Tenn. 2002)
(quoting Prosser & Keeton ' 87, at 620). However, an activity or use of
property that constitutes a nuisance in one context may not constitute a
nuisance in another context. Whether an activity or use of property amounts to
an unreasonable invasion of another=s legally protected interests Adepends on
the circumstances of each case, such as the character of the surroundings, the
nature, utility, and social value of the use, and the nature and extent of the
harm involved.@ Lane v. W.J. Curry & Sons, 92 S.W.3d at 364-65 (citing Pate
v. City of Martin, 614 S.W.2d at 47).

      Whether a particular activity or use of property is a nuisance is
measured by its effect on a Anormal person,@ not by its effect on the
Ahypersensitive.@ Jenkins v. CSX Transp., Inc., 906 S.W.2d 460, 462 (Tenn.
                                       5
       Ct. App. 1995). Rather, the standard for determining whether a particular
       activity or use of property is a nuisance is Aits effect upon persons of ordinary
       health and sensibilities, and ordinary modes of living, and not upon those who,
       on the one hand, are morbid or fastidious or peculiarly susceptible to the thing
       complained of, or, on the other hand, are unusually insensible thereto.@
       Jenkins v. CSX Transp., Inc., 906 S.W.2d at 462 (quoting Johnson v. Cowden,
       5 Tenn. Civ. App. 1, 7 (1914)). Thus, as Professors Prosser and Keeton have
       noted, A[i]f normal persons living in the area or community would regard the
       invasion in question as definitely offensive, seriously annoying, or intolerable,
       then the invasion is both significant and unreasonable.@ Prosser & Keeton '
       88, at 627-28.

Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 415-16 (Tenn. 2013) (footnotes omitted).

              Our Supreme Court also has provided guidance with regard specifically to trees
and nuisance stating: Aencroaching trees and plants may be regarded as a nuisance when they
cause actual harm or pose an imminent danger of actual harm to adjoining property.@ Lane v.
W.J. Curry & Sons, 92 S.W.3d 355, 364 (Tenn. 2002).

               In the case now before us on appeal it is undisputed that Defendant planted the
trees at issue on its own property and that the trees in no way encroach upon Plaintiff=s
property. Further, it is undisputed that these trees have caused no physical damage to
Plaintiff=s property. Plaintiff does allege economic damage resulting from her loss of the golf
course view. The facts that Plaintiff previously had a view of persons golfing on Defendant=s
property, that this view has been changed by the planting of the trees, and that Plaintiff is
unhappy because she no longer has an unobstructed view of a portion of Defendant=s
property are simply insufficient to give rise to a claim for nuisance. Plaintiff has directed us
to nothing which would give her a protected legal right entitling her to a view of Defendant=s
property.

               Defendant made a properly supported motion showing that Plaintiff cannot
prove that the trees at issue constitute a nuisance. We do not mean to suggest that trees never
can constitute a nuisance. Rather, given all of the facts and circumstances in the case now
before us at this time, Defendant has shown that Plaintiff cannot prove that the trees at issue
in this case constitute a nuisance. We find no error in the Trial Court=s grant of summary
judgment to Defendant.

              We next consider the issue of whether the Trial Court erred in denying
Plaintiff=s motion to compel deposition. In her brief on appeal Plaintiff asserts that A[i]n
nuisance complaints, malice can be demonstrated by actual ill will or inferred by the behavior
                                               6
of the Defendant.@ Our disposition of Plaintiff=s first two issues finding that Defendant has
shown that Plaintiff is unable to prove nuisance renders the necessity of considering this
issue as raised by Plaintiff moot.

             Defendant argues on appeal that this was a frivolous appeal and requests that it
be awarded all the court costs, attorney fees, and other expenses incurred by Defendant.
Exercising our discretion, we decline Defendant=s request for court costs, attorney fees, and
other expenses.

                                        Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant Betsy Stibler, and her surety.




                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE




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