Richard H. Niehaus v. Darnell Wade Houfek

07/08/2024

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 21, 2024 Session

RICHARD H. NIEHAUS ET AL. v. DARNELL WADE HOUFEK ET AL.

Appeal from the Chancery Court for Dickson County

No. 2020-CV-90 David D. Wolfe, Judge

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No. M2023-00992-COA-R3-CV

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This appeal, arising from a land dispute, concerns the trial court’s dismissal of several

claims against multiple parties pursuant to motions to dismiss filed under Rule 12.02(6) of

the Tennessee Rules of Civil Procedure. Although the terms of an “Agreed Final Order”

reflected that the Appellants waived their right to appeal any issue regarding two of the

parties in this case, the same order also signaled that nothing prevented the Appellants from

appealing matters involving two other individual parties. Through the present appeal, the

Appellants challenge the dismissal of their claims against these other individual parties.

Although we largely affirm the trial court’s dismissal order, we reverse in part.

Specifically, we hold that, on account of certain allegations that were pled pertaining to the

cutting of trees on the Appellants’ property, the wholesale dismissal of one of the individual

parties was improper.

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

in Part, Reversed in Part, and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which KENNY ARMSTRONG

and KRISTI DAVIS, JJ., joined.

Douglas Thompson Bates, IV, Centerville, Tennessee, for the appellants, Darnell Wade

Houfek and Robin Seal Kimbro (Houfek).

Russell W. Lewis, Nashville, Tennessee, for the appellee, Brandon Stoner.1

1

Mr. Stoner is the only Appellee who has filed a brief in connection with this appeal. Pursuant to

a per curiam order filed on December 13, 2023, this Court ordered that the appeal be submitted for a

decision without a brief on behalf of the other Appellees.

MEMORANDUM OPINION2

BACKGROUND

This case arises out of a land dispute in Dickson County. Litigation originally

commenced when Richard Niehaus and Martha Niehaus filed a petition in the Dickson

County Chancery Court (“the trial court”) against Darnell Houfek and Robin Kimbro

(collectively, “the Houfeks”).3 The Houfeks, the petition noted, were the owners of a

neighboring tract of land, and the Niehauses asserted that a dispute existed regarding an

easement that went through the Houfeks’ property for the benefit of their own. As

described by the Niehauses’ petition, this easement consists of an “undeveloped dirt path

upon which the [Niehauses] traverse though the [Houfeks’] Property to access the

[Niehauses’] Property . . . .” Mr. Houfek had allegedly made numerous threats regarding

the use of the easement, and in light of his alleged acts of “interference and

obstructionism,” the Niehauses claimed that they had been forced to continue residing in

Davidson County rather than on their own property in Dickson County. Among other

things, the Niehauses sought to have the Houfeks enjoined from interfering with ingress or

egress through the easement.

The Houfeks filed an answer wherein they prayed that the trial court would deny

relief to the Niehauses, but as is relevant to the present appeal, they also asserted claims of

their own. In addition to pointing to actions allegedly taken by the Niehauses, the Houfeks

named Michael Bresson, Brandon Stoner, and Music City Tactical Shooters as additional

parties. According to the Houfeks, Mr. Bresson was the owner of Music City Tactical

Shooters, a shooting club, and Mr. Stoner was his shooting teammate. Allegedly, prior to

the Niehauses’ acquisition of their Dickson County property, Mr. Bresson had attempted

to purchase the land “with the condition that it get rezoned for the shooting club.”

Although the zoning request was denied, the Houfeks alleged that Music City Tactical

Shooters had nonetheless been building a gun range on the Niehaus property subsequent to

the Niehauses’ acquisition of the land in 2019. In addition to seeking certain injunctive

relief, the Houfeks ultimately alleged that a number of specific torts had been committed

against them and generally asserted that “Niehaus, Stoner, Bresson and MCTS formed a

2

Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion

would have no precedential value. When a case is decided by memorandum opinion it

shall be designated “MEMORANDUM OPINION”, shall not be published, and shall not

be cited or relied on for any reason in any unrelated case.

3

Although Ms. Kimbro lists her surname as “Houfek” on certain filings in connection with this

litigation, she lists her surname as “Kimbro” on the cover page of her principal appellate brief. We

collectively refer to Mr. Houfek and Ms. Kimbro as “the Houfeks” for ease of reference herein.

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civil conspiracy.” Among their various assertions, the Houfeks chronicled a series of

alleged shootings that had occurred on the Niehaus property and also outlined alleged

instances of interference with trees on their land and alleged occasions where false reports

to authorities had been made.

On December 7, 2021, the trial court entered its “Order on Motion to Dismiss,”

stating that motions to dismiss under Rule 12.02 of the Tennessee Rules of Civil Procedure

had been filed by the Niehauses, Mr. Bresson, Music City Tactical Shooters, and Mr.

Stoner. Although certain matters in the broader case were not addressed pursuant to this

order, the trial court’s order did specifically hold that the allegations pertaining to an

alleged conspiracy were insufficient. In pertinent part, the order concluded that the

Houfeks’ allegations were “conclusory,” and further, the order held that the Houfeks had,

through their pleading, failed to establish an underlying tort.

Although a final evidentiary hearing regarding outstanding issues in the case was

set for June 21, 2023, an “Agreed Final Order” was entered on June 8, 2023, upon the

agreement of the Niehauses and the Houfeks. Among other things, the June 8, 2023, order

directed the Houfeks to remove all objects that were within the easement and stated that

the Niehauses “shall be allowed to use their property as conforming to all applicable zoning

ordinances, state laws and regulations.” Of note to our present review, although the order

reflected that both the Niehauses and the Houfeks “waive[d] their right to appeal this order

or any issue between them,” it specifically clarified that “[n]othing herein waives the

Houfek[s’] right to appeal trial court orders against Michael Bresson and/or Brandon

Stoner.” The present appeal followed.

STANDARD OF REVIEW

A motion to dismiss under Rule 12.02(6) of the Tennessee Rules of Civil Procedure

seeks to determine whether the pleadings state a claim upon which relief can be granted.

Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002). Although

great specificity in pleadings is ordinarily not required to survive a motion to dismiss, id.,

conspiracy claims “must be pled with some degree of specificity.” Kincaid v. SouthTrust

Bank, 221 S.W.3d 32, 38 (Tenn. Ct. App. 2006).

A Rule 12.02(6) motion to dismiss challenges only the legal sufficiency of the

complaint, and our review of a trial court’s determinations on issues of law is de novo with

no presumption of correctness. In re Estate of Starkey, 556 S.W.3d 811, 814-15 (Tenn. Ct.

App. 2018).

DISCUSSION

Much of this case has already been resolved. As noted earlier, the Houfeks waived

their right to appeal any issue between them and the Niehauses. Through the present

appeal, however, the Houfeks appeal the dismissal of their claims against Mr. Bresson and

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Mr. Stoner. Specifically at issue are four alleged torts and allegations that a civil

conspiracy existed.

We begin our discussion by considering the Houfeks’ contention that they validly

asserted a claim for nuisance in this case. In focusing on this question in the context of the

present appeal, we of course specifically limit our attention to whether a valid nuisance

claim against Mr. Bresson or Mr. Stoner was established by the Houfeks’ allegations.

As we understand it, the claimed nuisance here relates to the alleged discharge of

guns on the Niehaus property. Having reviewed the Houfeks’ allegations, we agree with

the trial court’s effective conclusion that a claim for nuisance was not properly stated

against Mr. Bresson or Mr. Stoner. No doubt, there are allegations pertaining to certain

incidents of gunfire occurring on the Niehaus property, but very simply, there is nothing

alleging that either Mr. Bresson or Mr. Stoner were actual shooter participants in the

complained-of events.4 To the extent that the Houfeks may believe that they had an

actionable nuisance claim against the Niehauses as a result of the gunfire that was alleged,

that matter is not before us. Again, the Houfeks waived their right to appeal the dismissal

of their tort claims against the Niehauses.

We next consider the Houfeks’ assertion of a conversion claim and their attempt to

recover for the alleged cutting of trees on their property. A conversion “is the appropriation

of the thing to the party’s own use and benefit, by the exercise of dominion over it, in

defiance of plaintiff’s right.” Barger v. Webb, 391 S.W.2d 664, 665 (Tenn. 1965).

Tennessee law provides for recovery in instances where trees are improperly cut from the

property of another, see Neidhardt v. Shouse, No. 1:15-cv-00088, 2017 WL 2957874, at

*1 (M.D. Tenn. July 11, 2017) (discussing how Tennessee law provides for an award of

damages for the value of trees), and here, in an apparent attempt to explain why Mr. Stoner

should be liable with respect to one of the occasions when trees were allegedly cut, the

Houfeks argue in their brief that the trees had been “cut down by a company it was posited

. . . was ‘very likely’ owned by Appellee Stoner.” In our view, although this is insufficient

to implicate Mr. Stoner, we do agree with the Houfeks that valid allegations supporting

liability for the cutting of trees were pled in this case. Namely, as to Mr. Bresson, it is clear

that paragraph seventy-six of the Houfeks’ complaint outlines the basis for a valid claim

against him.5 Per that paragraph, the Houfeks allege as follows:

4

Nor does the argument section of the Houfeks’ brief itself endeavor to, in compliance with

applicable briefing requirements, establish otherwise. Indeed, the argument section of the Houfeks’ brief

that is devoted to a nuisance claim does not appear to cite to any allegations from any pleading. Of further

note, following argument by Mr. Stoner in his appellate brief that none of the allegations in this case

implicated his participation in any shooting, the Houfeks conceded in their reply brief that they made a

mistake in indicating Mr. Stoner was physically present at certain shootings.

5

In the trial court, in their “Appendix 1 Consolidated Response to Respondents[’] Motion to

Dismiss,” the Houfeks specially invoked this paragraph as support for their claim against Mr. Bresson.

They have also cited to this paragraph on appeal.

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Once again, on April 15, 2020, Houfek’s property is damaged, as trees are

cut down, and others that line the easement are spray painted orange. Houfek

informs those working, including Bresson and Niehaus, that the trees they

are cutting are on his property. The work continues, despite the known

information.

In light of our conclusion that a valid claim against Mr. Bresson has been asserted regarding

his alleged cutting of trees, his wholesale dismissal from this lawsuit by the trial court is

hereby reversed. On remand, the Houfeks may pursue relief against him for his alleged

cutting of their trees.

We next turn to the Houfeks’ assertion of a claim for intentional infliction of

emotional distress (“IIED claim”). “The elements of an [IIED claim] are that ‘the

defendant’s conduct was (1) intentional or reckless, (2) so outrageous that it is not tolerated

by civilized society, and (3) resulted in serious mental injury to the plaintiff.’” Lemon v.

Williamson Cnty. Schs., 618 S.W.3d 1, 21 (Tenn. 2021) (quoting Rogers v. Louisville Land

Co., 367 S.W.3d 196, 205 (Tenn. 2012)).

In their brief, the Houfeks argue that they asserted a proper IIED claim against Mr.

Stoner as a result of allegations they pled pertaining to a confrontation between Mr. Houfek

and Mr. Stoner in January 2020. According to the Houfeks’ pleading, Mr. Stoner called

police dispatch “stating that Darnell Houfek would not let him on the property” and “told

the officers—without any evidence—that he thought Houfek had a gun, and that Houfek

told him that he had a gun.” Mr. Houfek was allegedly handcuffed as a result of the report

when law enforcement arrived, causing him emotional distress. Moreover, the Houfeks

claim that Mr. Stoner’s report was false.

On appeal, in support of the trial court’s dismissal of the IIED claim, Mr. Stoner

argues that these allegations against him are insufficient. Specifically, he contends that the

factual allegations pled by the Houfeks do not support either the second or third elements

that comprise a valid IIED claim. As for the alleged insufficiency of the Houfeks’

allegations in relation to the second element of an IIED claim, Mr. Stoner maintains that

the allegations against him “do not demonstrate outrageous conduct as they do not rise to

the high standard of outrageousness necessary to sustain a claim.” As discussed below, we

agree.6

As the Tennessee Supreme Court has explained:

The burden for a plaintiff to demonstrate outrageous conduct is a

6

Given our agreement on that matter, we need not specifically entertain the merits of Mr. Stoner’s

argument pertaining to the alleged insufficiency of the Houfeks’ allegations vis-à-vis the third element of

an IIED claim.

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high burden indeed. Liability for intentional infliction of emotional distress

“does not extend to mere insults, indignities, threats, annoyances, petty

oppression or other trivialities.” Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.

1997) (quoting Medlin v. Allied Inv. Co., 217 Tenn. 469, 398 S.W.2d 270,

274 (1966), abrogated on other grounds by Camper v. Minor, 915 S.W.2d

437 (Tenn. 1996)). This Court has endorsed the “high threshold” standard

stated in the Restatement (Second) of Torts:

The cases thus far decided have found liability only where the

defendant’s conduct has been extreme and outrageous. It has not

been enough that the defendant has acted with an intent which is

tortious or even criminal, or that he has intended to inflict

emotional distress, or even that his conduct has been characterized

by “malice,” or a degree of aggravation which would entitle the

plaintiff to punitive damages for another tort. Liability has been

found only where the conduct has been so outrageous in

character, and so extreme in degree, as to go beyond all bounds of

decency, and to be regarded as atrocious and utterly intolerable

in a civilized community. Generally, the case is one in which the

recitation of the facts to an average member of the community

would arouse his resentment against the actor, and lead him to

exclaim, “Outrageous.”

Bain, 936 S.W.2d at 622–23 (quoting Medlin, 398 S.W.2d at 274;

Restatement (Second) of Torts § 46 cmt. d (Am. L. Inst. 1965)). The

Restatement recognizes that “[i]t is for the court to determine, in the first

instance, whether the defendant’s conduct may reasonably be regarded as so

extreme and outrageous as to permit recovery, or whether it is necessarily

so.” Restatement (Second) of Torts § 46 cmt. h; see Brown v. Mapco Exp.,

Inc., 393 S.W.3d 696, 704 (Tenn. Ct. App. 2012).

Id. (emphases added).

Here, we do not regard the single alleged instance of Mr. Stoner making a false

police report to satisfy the “exacting standard” that accompanies IIED claims. Miller v.

Willbanks, 8 S.W.3d 607, 614 (Tenn. 1999) (noting that the plaintiff’s burden to prove that

the offending conduct was outrageous is an “exacting standard”).7 In our view, the alleged

7

Although of course not controlling of our own review, we observe that similar conclusions have

been reached by other courts. Of note, the Supreme Court of Minnesota discussed as follows in reference

to alleged false reports to police:

Extreme and outrageous conduct is conduct that is “utterly intolerable to the

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conduct does not “go beyond all bounds of decency.”

The remaining tort at issue is for a form of invasion of privacy, namely that of

intrusion upon seclusion. In discussing the contours of this tort, our past jurisprudence has

quoted to the Restatement (Second) of Torts § 652B, which reads as follows:

One who intentionally intrudes, physically or otherwise, upon the solitude or

seclusion of another or his private affairs or concerns, is subject to liability

to the other for invasion of his privacy, if the intrusion would be highly

offensive to a reasonable person.

Restatement (Second) of Torts § 652B (1977). Per one of the comments to section 652B,

comment (d), the interference with the plaintiff’s seclusion must be “substantial.”

As argued in their brief, the Houfeks’ invasion of privacy theory of liability is

predicated, in part, on Mr. Stoner’s January 2020 call to police dispatch. However, of note,

in referencing that alleged conduct, as well as a couple of instances where “Niehaus”

supposedly called the police, the Houfeks submit that “the repeated acts of calling the

police by Mr. Niehaus and Stoner amounted to an invasion of privacy.” As to this broader

principal argument, which is notably positioned as being predicated upon the repetition of

calls to police dispatch, we state again that this case has already been resolved as it concerns

the Niehauses.

As for Mr. Stoner, he aptly notes in his brief that, as it concerns him, the invasion

of privacy claim rests solely upon the alleged false report he made in January 2020.

Although the Houfeks’ pleading avers that Mr. Stoner acted “in an attempt to harass,” we

do not regard this single episode of conduct, as alleged, as sufficiently stating a claim for

intrusion upon seclusion.

civilized community.” Hubbard, 330 N.W.2d at 439 (citation omitted). To prevent

fictitious and speculative claims we limit this tort “to cases involving particularly egregious

facts.” Id. Langeslag reported to the police that Eddy was scalping tickets, and that Eddy

would not allow her to leave his office. Even assuming these reports were false and

Langeslag knew it, this conduct does not rise to the level of outrage that is “utterly

intolerable to the civilized community.” Id. Our conclusion is buttressed by decisions in

other jurisdictions reaching similar conclusions. Fuller v. Local Union No. 106, 567

N.W.2d 419, 423 (Iowa 1997) (concluding that the defendant did not engage in extreme

and outrageous conduct when he falsely reported to the police that the plaintiff was driving

while intoxicated); Holland v. Sebunya, 759 A.2d 205, 212 (Me. 2000) (stating that calling

the police and having the plaintiff physically removed from a meeting does not constitute

extreme and outrageous behavior, even if the removal was not warranted).

Langeslag v. KYMN Inc., 664 N.W.2d 860, 866 (Minn. 2003).

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Having addressed the individual torts pursued by the Houfeks, we now address their

pursuit of recovery under a conspiracy theory of liability.

“An actionable civil conspiracy is a combination of two or more persons who, each

having the intent and knowledge of the other’s intent, accomplish by concert an unlawful

purpose, or accomplish a lawful purpose by unlawful means, which results in damage to

the plaintiff.” Trau-Med, 71 S.W.3d at 703; see also Law Offices of T. Robert Hill PC v.

Cobb, No. W2020-01380-COA-R3-CV, 2021 WL 2172981, at *5 (Tenn. Ct. App. May 27,

2021) (noting that a conspiracy exists when there is “(1) a common design between two or

more persons, (2) to accomplish by concerted action an unlawful purpose, or a lawful

purpose by unlawful means, (3) an overt act in furtherance of the conspiracy, and (4)

resulting injury”). “Upon a finding of conspiracy, each conspirator is liable for the

damages resulting from the wrongful acts of all co-conspirators in carrying out the common

scheme.” Trau-Med, 71 S.W.3d at 703.

Here, the trial court regarded the allegations pled regarding a supposed conspiracy

to be “conclusory,” and on appeal, Mr. Stoner has urged this Court to affirm, arguing that

the Houfeks failed to include sufficient allegations regarding an intent shared by the alleged

co-conspirators. Although the Houfeks have attempted to challenge the dismissal of their

conspiracy theory of liability by arguing that every Defendant had a “common motive,”

their offered briefing on this subject is, respectfully, unavailing. Namely, we note that,

whereas the Houfeks’ argument on this matter points to respective allegations purportedly

pertaining to Mr. Bresson and Mr. Stoner immediately following a generalized statement

that there was a “common motive” in this case, the cited allegations offered concerning

Mr. Bresson do not in fact implicate him at all.8

In closing, we briefly address an issue raised regarding appellate attorney’s fees.

Whereas Mr. Stoner has specifically requested attorney’s fees for this appeal pursuant to

the authority in Tennessee Code Annotated section 27-1-122, we respectfully decline to

grant Mr. Stoner such relief in this appeal.

CONCLUSION

In light of the foregoing discussion, the trial court’s dismissal order is affirmed in

part and reversed in part, and the case is remanded for further proceedings consistent with

this Opinion.

s/ Arnold B. Goldin

ARNOLD B. GOLDIN, JUDGE

8

Instead, the referenced portion of the pleading mentions “Niehaus.”

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