Paul Rector v. Elizabeth Halliburton

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 4, 1999 Session

E. PAUL RECTOR v. ELIZABETH HALLIBURTON, ET AL.

Appeal from the Circuit Court for Davidson County

No. 96C-2139 Hamilton V. Gayden, Jr., Judge

No. M1999-02802-COA-R3-CV - Filed February 26, 2003

The residence owned by Mrs. Halliburton had no access owing to highway construction. She

acquired a driveway easement from the adjoining landowner, who later sold the property to Mr.

Rector. An electric service line extended across the front of Mr. Rector’s property which was

relocated. Mr. Rector’s efforts to purchase the Halliburton property were unavailing, and he began

a policy of harassment presumably to acquire the property. He claimed, inter alia, that the easement

terminated because it was improperly maintained, and that NES moved the service line without his

permission and hence was guilty of trespass. Mrs. Halliburton filed a counterclaim for damages,

charging Mr. Rector with trespass and outrageous conduct. Mr. Rector’s suit was dismissed, and the

counterclaim of Mrs. Halliburton was sustained. The dismissal of Mr. Rector’s suit is affirmed; the

award of attorney fees to Mrs. Halliburton is reversed; the case is remanded for a determination of

the damages sustained by Mrs. Halliburton, including punitive damages.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part;

Vacated in Part; Remanded

BEN H. CANTRELL, P.J., M.S.,WILLIAM C. KOCH , JR., and WILLIAM B. CAIN , J.J.

Dan R. Alexander, Nashville, Tennessee, for the appellant, E. Paul Rector.

C. Dewey Branstetter, Jr., Nashville, Tennessee, for the appellee, Elizabeth Halliburton.

Eugene W. Ward and Laura Israel Smith, Nashville, Tennessee, for the appellee, The Electric Power

Board of Nashville and Davidson County, Tennessee.

OPINION

PER CURIUM

I.

Elizabeth Halliburton and her husband, Robert Halliburton, now deceased, purchased a house

and lot at 801 Park Terrace in Nashville in 1953, where they resided until 1968 when they moved

to Clarksville. In February 1969 the State, pursuant to its power of eminent domain, acquired a

portion of the Halliburton’s property for the construction of Interstate 65. This acquisition destroyed

access to the remainder of the Halliburton property.1 In 1973, they acquired, by purchase, an

easement,2 for purposes of access, from the owners of the adjacent property at 803 Park Terrace. The

easement provides that its purpose is for ingress and egress to 801 Park Terrace, is ten feet in width,

and must be maintained, by “rock, gravel or paved” by Halliburton. This driveway easement

provides the only access to the house located at 801 Park Terrace and it has been used continuously

since 1973.

In 1988, Paul Rector purchased 803 Park Terrace from Bessie L. H. Brown, who had, in 1973

conveyed the easement over it to the Halliburtons. Mr. Rector also inquired of Mrs. Halliburton if

she would sell her 801 Park Terrace property, but she declined. After Mr. Halliburton died in 1991,

Mr. Rector became more aggressive in his efforts to acquire the Halliburton property.

One of his aggressive acts involved the defendant Nashville Electric Service [NES] which

furnished power to the Halliburton property. In 1995, NES relocated its transmission line to run

across Mr. Rector’s front yard, following which he had the meter on his house relocated so that a

different electrical line provided power to his residence. The service line extending across Mr.

Rector’s front yard thereafter was providing current to Mrs. Halliburton’s house. Mr. Rector

attempted to persuade NES to discontinue service to the Halliburton house, but without success.

Another of his aggressive acts triggered by the driveway easement across his property

occurred in 1995 when he installed posts in the driveway, stating to Mrs. Halliburton’s son, Kent,

that he had done so. Kent removed the posts, which were promptly reinstalled by Mr. Rector, this

time in concrete. Mr. Rector’s theory was that the cost to Mrs. Halliburton in removing the

barricading posts would be more than the rent she was receiving for the property. Kent again

removed the posts by sawing them at ground level. Mr. Rector removed the mailbox serving the

Halliburton property.

1

The Halliburto ns’ were com pensated for the taking of their entire property, but the State thereafter so ld them

the portion not needed for road construction, which included the residence.

2

Which was duly recorded.

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Mr. Rector sued Mrs. Halliburton and NES for damages for trespass, alleging that, as to NES,

it trespassed by refusing to remove the transmission or service line over the front of his property,

and, as to Mrs. Halliburton, that the easement had reverted to him and she consequently had no

lawful right to traverse his property. Mrs. Halliburton promptly filed a counterclaim against Mr.

Rector seeking damages for trespass, breach of contract, injunctive relief, intentional infliction of

emotional distress, outrageous conduct and tortious interference with business relations.

II.

The case was heard without a jury on September 2, 1998. The Rule 41 Motion by NES for

an Involuntary Dismissal was granted and all claims against NES were dismissed. The Rule 50

Motion of Mrs. Halliburton3 was granted and all claims against her were dismissed.

The counterclaim of Mrs. Halliburton was sustained as to outrageous conduct and trespass.

As damages, she was awarded $100.00 for the mailbox removal by Mr. Rector, $10,500.00 as

damages for “outrageous conduct, intentional infliction of emotional distress, and trespass,” together

with an injunction enjoining Mr. Rector from interfering with the easement.

The trial judge “postpone[d] a hearing on punitive damages for a period of not less than one

(1) year, with punitive damages to be considered based upon the future conduct of Mr. Rector.”

The plaintiff appeals and presents for review three issues:4 (1) Whether the trial court erred

in finding that the plaintiff failed to prove a prima facie case of trespass; (2) whether the trial court

erred in awarding damages against the plaintiff and counter-defendant for trespass, outrageous

conduct, and intentional infliction of emotional distress; (3) whether the trial court erred in awarding

punitive damages and attorney fees. Review is de novo with a presumption that the judgment is

correct as to factual conclusions, Rule 13(d) Tenn. R. App. P. There is no presumption of

correctness as to questions of law.

III.

When the case reached this Court, we took note of the unresolved counterclaim against Mr.

Rector for punitive damages, and entered an Order that the judgment was not final and therefore not

appealable. See, Tenn. R. App. P., Rule 3(a). A final judgment is one that resolves all of the claims

between the parties. Aetna Cas. & Sur. Co. v. Miller, 491 S.W.2d 85 (Tenn. 1973). Mr. Rector was

directed to either obtain a final judgment or show cause why the appeal should not be dismissed.

He thereupon moved the trial court to make the judgment final pursuant to Rule 54.02, Tenn. R. Civ.

3

She moved for a “directed verdict” which was treated by the trial judge as a Rule 41 Motion since only juries

return verdicts.

4

The app ellant, in his “N otice o f Issues on Ap peal” comp lained only of the judgment rend ered aga inst him.

He did not raise an issue of the dismissal of his case. In light of all the circumstances we do not consider this omission

harmful.

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P., which allows trial courts “upon an express determination that there is no just reason for delay”

to direct the entry of a final judgment on fewer than all of the claims. The trial court then entered

an order directing that the judgment “be made a final order.” This action does not allay our concern

that the case is properly before us for review.

We note the obvious: the purpose of Tenn. R. Civ. P. Rule 54.02 is to avoid piecemeal

appeals which would conceivably cause an injustice owing to the delay occasioned by appellate

review. The Rule is strictly construed to require as a prerequisite to an appeal the certification by

the trial judge that (1) the court has directed the entry of a final judgment as to one or more but fewer

than all of the claims or parties, and (2) that the court has made an express determination that there

is no just reason for delay. See, Fagg v. Hutch Mfg. Co., 755 S.W.2d 446 (Tenn. 1988); Stidham

v. Fickle Heirs, 643 S.W.2d 324 (Tenn. 1980). Without these certifications, a case with multiple

parties or multiple claims might be appealable ad infinitum and wreak havoc with the justice system.

But even a thoughtful certification should be made sparingly and only in an infrequent and harsh

case. Compact v. Metro. Govt. of Nashville and Davidson Cty., 786 F2d 227 (6th Cir. Tenn. 1986).

The order of the trial court certifying its original judgment as final was ineffective for the

purpose. Mrs. Halliburton sought punitive damages from Mr. Rector, and although it was the

judgment of the court that she had proved her entitlement to such damages, the award thereof was

not determined but was held in abeyance for one year. Thus it is that the claim for punitive damages

remained unresolved5 between the principal parties.

But our inquiry does not end at this point. Procedurally, this court may for good cause

suspend the final judgment requirement in a particular case. See, Bayberry Assocs. v. Jones, 783

S.W.2d 553 (Tenn. 1990); Rule 2, Tenn. R. App. P. We elect to suspend the Rule 54.02 requirement

for two reasons: (1) we are able to consider the merits of all the issues on appeal excepting the

amount of the punitive damages award, and (2) none of the parties will be unfairly prejudiced if all

the issues are resolved and the case is remanded for a determination of the award of punitive

damages. Judicial economy must intervene at some point in the progress of a lawsuit, and we

accordingly suspend Rule 3(a) Tenn. R. App. P.

IV.

We next consider Mr. Rector’s trespass claim against NES. He testified that NES moved the

power lines formerly in place along the lot line to another location without his consent. His theory

of damages therefor was premised on the proposition that in the new location trees had to be pruned

thus increasing traffic noise.

The electric lines traversed the northeastern corner of the property at 803 Park Terrace for

more than 20 years, and served the residences at 801 and 803 Park Terrace. Mr. Rector purchased

the 803 Park Terrace property in 1988; in 1995 NES relocated the service line so that it crossed Mr.

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It seems reasonable to speculate that the rationale for the deferred action was damocletan.

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Rector’s front yard and provided current to the Halliburton property. The trial court held that NES

owned a prescriptive easement over the property of Mr. Rector; the electric lines remained in the

same vicinity after relocation of a bridge project, but actually traversed a smaller portion of Mr.

Rector’s property.

An easement in land may be acquired by adverse use of possession for twenty years without

color of title. German v. Graham, 497 S.W.2d 245 at 248 (Tenn. Ct. App. 1972); Ferrell v. Ferrell,

60 Tenn. 329 at 332-333 (1872). An easement acquired by adverse possession is sometimes referred

to as a “prescriptive easement.” In order to acquire a prescriptive easement, the use “must be

adverse, under claim of right, continuous, uninterrupted, open, visible, exclusive, and with

knowledge and acquiescence of the owner of the servient tenement, and must continue for the full

prescriptive period . . .” House v. Close, 346 S.W.2d 445 at 447 (Tenn. Ct. App. 1961). See, also,

McCammon v. Meredith, 830 S.W.2d 577 at 580 (Tenn. Ct. App. 1991).

For at least forty (40) years, NES maintained its line over the corner of the northeastern

portion of the property at 803 Park Terrace. By 1988, when Mr. Rector purchased the property, NES

had long since acquired a prescriptive easement. In fact, he admitted that he “didn’t feel like [he]

had a complaint with the lines that were there for several years.”

He now claims that NES does not have a valid easement over his property and apparently

bases that assertion on the movement of the lines by NES in 1995, where, as stated, NES was

required to change the position of its lines as a result of a Metro Water bridge project. The lines

remained in the same vicinity on the northeastern corner of the Rector property, but actually

traversed a much smaller portion of the property than they had previously occupied.

In this jurisdiction, the 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, 25

Tenn. App. 276 at 281, 156 S.W.2d 353 (1941); Mize v. Ownby, 189 Tenn. 207 at 211, 225 S.W.2d

33 (1949); Ogle v. Trotter, 495 S.W.2d 558 at 565-566 (Tenn. Ct. App. 1973); Knight v. Utz, 673

S.W.2d 161 at 163 (Tenn. Ct. App. 1984); Little v. Paduch, 912 S.W.2d 170 at 173 (Tenn. Ct. App.

1995).

The purpose of the prescriptive easement was to provide electric service to the residences on

Park Terrace. That purpose has remained unchanged. The modification of the position of the line

did not affect the purpose of the easement. In addition, the movement of the line did not increase

the burden on the Rector property, because thereafter the line crossed only the northeastern corner

of Mr. Rector’s property. As in Ogle v. Trotter, supra, it is fair to state that the relocation of the

service line decreased the burden on the servient estate. The trial court correctly held that NES

enjoyed a prescriptive easement across Mr. Rector’s property.

But had the relocation of the service line increased the burden of the servient estate, Mr.

Rector’s remedy is clearly controlled by statutory law. See, Tenn. Code Ann. § 29-16-101, et seq.

NES has the right of eminent domain, and if it acquires private property without exercising the right,

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the landowner may file an inverse condemnation action to recover appropriate damages. But such

action must be filed within twelve (12) months after the taking. Tenn. Code Ann. § 29-16-124;

Vowell Ventures v. City of Martin, 47 S.W.3d 434 (Tenn. Ct. App. 2001). Since the service line

was relocated in 1995, the applicable statute of limitations clearly is a bar to a suit for damages.

V.

Mr. Rector also argues that his claim of trespass against Mrs. Halliburton should not have

been dismissed. He agreed that Mrs. Halliburton had a recorded easement, but that the easement had

expired because it was “conditioned on a hard surface road, which was never done.”

An easement is a interest in another’s real property that confers on the easement holder an

enforceable right to use that real property for a specific use. Bradley v. McLeod, 984 S.W.2d 929,

934 (Tenn. Ct. App. 1998). Easements can be created in several ways: (1) express grant, (2)

reservation, (3) implication, (4) prescription, (5) estoppel, and (6) eminent domain. Pevear v. Hunt

924 S.W.2d 113, 115-16 (Tenn. Ct. App. 1996). In this case, the driveway easement was created by

express grant in a recorded agreement between the Halliburtons and Mr. Rector’s predecessor in title,

Bessie Brown. When an easement is created by express grant, the extent and any conditions on the

easement must be determined by the grant’s language. Foshee v. Brigman, 174 Tenn. 564, 567, 129

S.W.2d 207, 208 (1939).

The easement agreement in this case recites that the interstate project had unexpectedly

deprived the Halliburtons of access to their property. It provides that the Halliburtons sought the

easement as a means of ingress and egress from Park Terrace to their lot. It expressly conveys a

perpetual easement (that is, one lasting with no date to end) measured ten feet wide and running

within stated metes and bounds. The easement is subject to these conditions: (1) that the hard-

surfaced driveway traversing the easement be constructed, operated and maintained at the easement

holder’s sole expense, with the driveway to be either rock, gravel or paved; (2) that any required

moving of utility polies or water meters made necessary by constructing the driveway be at the

Halliburtons’ expense; and (3) that the driveway remain a residential means of ingress and egress

and not become a through road. The agreement lastly provides that breach or other failure to comply

with the easement’s express conditions shall work a forfeiture of the easement and cause the property

interest it covers to revert to the grantee or her successors.

Mr. Rector argues that for at least some of the time that he owned his property, the

Halliburton driveway was not maintained as a hard surface. According to him, Mrs. Halliburton’s

failure prior to 1994 to always maintain the easement driveway strictly as a hard surface worked a

forfeiture of the property interest under the easement agreement’s terms. We agree that as a legal

matter, parties can create easements that will terminate on one party’s failure to comply with a

condition, Higdon v. Davis, 337 S.W.2d 543, 547 (N.C. 1985); Vincent v. Gurley, 27 S.W.2d 260,

262 (Tex. Civ. App. 1930); however, more is required before reverter occurs.

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Generally, easements determinable upon condition are of two types: (1) those that end upon

the happening of a condition and (2) those that can be ended if the grantee fails to comply with

conditions subsequent. The two types of easements do not work exactly the same. Easements that

end upon the happening of some future condition are said to terminate ipso facto upon the happening

of the specified event or contingency. In other words, the easement comes to an end without the

necessity of any reclaiming action by the owner of the subservient estate. See Irvin v. Petitfils, 112

P.2d 688, 690-91 (Cal. Dist. Ct. App. 1941): Holchamp Lumber Co. v. State Highway Comm’n,

173 S.W.2d 938, 941-42 (Mo. 1943). In those cases, in one court’s words, “[R]everter is automatic.”

Higdon v. Davis, 337 S.E.2d at 547.

However, easements that can be ended if the holder fails to comply with conditions of the

grant operate differently. When an easement is granted upon compliance with conditions

subsequent, the easement holder’s interest does not terminate automatically upon breach of the

condition. Instead, it continues in existence until the owner of the subservient estate exercises a

holder’s interest. Standard Knitting Mills, Inc. v. Allen, 424 S.W.2d 796, 798-99 (Tenn. 1967);

East Tenn. & W.N.C. R.R. Co. v. Gouge, 203 S.W.2d 170, 172 (Tenn. 1947). Until such a re-entry

is made, “the estate remains as before,” with the easement holder continuing to enjoy the rights

conferred by the grant. East Tenn. & W.N.C. R.R. Co. v. Gouge, 203 S.W.2d at172.

Prior to August 1994, the Halliburton driveway across Mr. Rector’s property arguably was

not maintained as a hard surface. Mr. Rector described it as “dirt . . . [with] some smattering of

gravel, very little.” However, at no time prior to August 1994 did Mr. Rector take affirmative action

toward Mrs. Halliburton to legally terminate her property interest for failure to comply with

conditions placed on the easement. At trial, Mrs. Halliburton was asked, “When was the first time

you ever met or talked with Mr. Rector, your next-door neighbor?” She replied: “Well, I was out

there one day. I had ordered rocks, and I was standing there in my drive, and the rock man had

backed in fixing to unload, and he [Mr. Rector] ran out trying to stop the rock man from delivering

the rocks. And he said, ‘Who ordered these rocks?’ And I stepped around and I said, ‘I did.’ And

he said, ‘Don’t you know I am going to take this [driveway] out of here?’ And I said, ‘No, you’re

not, because you knew when you bought this property that this easement was here.’” That was in

August of 1994. As far as the record shows, the driveway has been maintained as a hard surface

gravel drive since. If Mrs. Halliburton prior to August 1994 arguably failed to meet a condition of

her easement, the property interest did not automatically revert to Mr. Rector, and he made no re-

entry upon the easement prior to her graveling of the road to forfeit her interest. Her easement

continues according to the terms of the grant.

Mr. Rector sued for trespass. Trespass upon real property entails the unauthorized, and

therefore unlawful entry into the close of another. West v. Lanier, 29 Tenn. (9 Hum.) 762, 770

(1849); Morrison v. Smith, 757 S.W.2d 678, 681 (Tenn. Ct. App. 1988). Mr. Rector wholly failed

to prove that Mrs. Halliburton’s driveway constituted a trespass. The driveway ran across his lot

pursuant to a legally-recognized property interest held by Mrs. Halliburton that was fully in effect

when Mr. Rector instituted this suit. For that reason, her use of the driveway was not an unlawful

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entry upon Mr. Rector’s neighboring property. Because Mr. Rector failed to make out a prima facie

case for trespass, the trial court properly dismissed the claim.

VI.

Having determined that Mr. Rector’s claims were properly dismissed, we now consider the

trial court’s disposition of Mrs. Halliburton’s countersuit. The court found that she had made out

a compensable case against Mr. Rector for outrageous conduct, intentional infliction of emotional

distress, and trespass. On appeal, Mr. Rector argues that the circuit court erred in finding his

behavior to be actionable as outrageous conduct. In reviewing this issue, we indulge the trial court’s

finding of the facts with a presumption of correctness unless the evidence preponderates otherwise.

Thurmond v. Sellers, 62 S.W.3d 145, 151 (Tenn. Ct. App. 2001). Having done so, we must then

make our own decision about how those facts comport with the legal elements required to prove the

tort of outrageous conduct. See, e.g., Weathers v. Pilkinton, 754 S.W.2d 75, 77 (Tenn. Ct. App.

1988). Determining the sufficiency of evidence to establish the elements of a cause of action is a

question of law, White v. Vanderbilt Univ., 21 S.W.3d 215, 231 (Tenn. Ct. App. 1999), which we

review de novo.

The torts of outrageous conduct and intentional infliction of emotional distress are different

names for the same cause of action. Bain v. Well, 936 S.W.2d 618 n.3 (Tenn. 1997). To establish

the tort, a plaintiff must show three things: (1) that the conduct complained-of was intentional or

reckless, and (2) that it was so outrageous so as to be intolerable in civilized society, and (3) that it

caused serious mental injury to the plaintiff. Miller v. Willbanks, 8 S.W.3d 607, 612 (Tenn. 1999);

Lyons v. Farmers Ins. Exch., 26 S.W.3d 888, 893 (Tenn. Ct. App. 2000).

Although no perfect legal standard exists for determining whether particular conduct is so

intolerable so as to be tortious, our courts often employ the threshold standard set out in the

Restatement (Second) of Torts:

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.’

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Bain v. Wells, 936 S.W.2d at 623 (quoting Restatement (Second) of Torts § 46, cmt.d (1965));

Newsom v. Textron Aerostructures, 924 S.W.2d 87, 98 (Tenn. Ct. App. 1995). In terms of causing

“serious mental injury,” the plaintiff must prove that the putative wrongdoer’s actions put him or her

under so much mental distress that a reasonable person, normally constituted, would be unable to

cope. Ramsey v. Beavers, 931 S.W.2d 527, 532 (Tenn. 1996). Only where mental discomfiture

becomes extreme does legal liability arise. As the courts have said, complete emotional tranquility

is seldom attainable in this world, and some degree of temporary upset from time to time comes with

living among people. The law intervenes only when one person causes another so much mental

distress that no reasonable person could be expected to endure it. Miller v. Willbanks, 8 S.W.3d at

615 n.4.

The record supports the finding that after Mrs. Halliburton and her late husband refused to

sell 801 Park Terrace to him, Mr. Rector began to engage in a course of conduct decidedly unfriendly

to his neighbor. He interfered with one or more of Mrs. Halliburton’s tenants by rifling through and

removing some of their mail from the mailbox at 801 Park Terrace. When that was not enough, he

ultimately took the mailbox itself. He told a prospective tenant that he was going to have the

electrical lines servicing the property taken down, and, in fact, later attempted to force NES to take

down the line servicing the property – even to the point of bringing suit. He confronted Mrs.

Halliburton personally on the property and informed her that he was going to have her driveway

taken out and attempted to interfere with the delivery of gravel for the drive. He ultimately escalated

his campaign to the point of twice setting posts across the drive, presumably as a prerequisite to

running a fence across it. At one point his truck was parked across the drive so as to block it.

These were spiteful actions and Mrs. Halliburton was understandably upset. She lived away

from the property and could not easily keep up with any mischief occurring there. She at times had

to use her son and daughter as proxies in countering some of Mr. Rector’s moves. She made several

anxious phone calls to NES out of fear that Mr. Rector would somehow succeed in shutting off

power to the property. All of these things together through time made Mrs. Halliburton, in her

words, a “nervous wreck.”

While we agree that Mr. Rector’s behavior toward his neighbor was condemnable, we cannot

go further and hold as a legal matter that it was “so extreme in degree as to be beyond all bounds

of decency” and thus constitute actionable outrageous conduct. Neither may we hold that Mrs.

Halliburton’s emotional upset constituted severe mental injury. She was disturbed but not distraught

beyond all reason; she was perturbed but not prostrated by Mr. Rector’s acts. She experienced

emotional distress from having to counter an aggressive, overreaching person, but this Court cannot

say that her discomfiture was beyond what a reasonable person might be expected to temporarily

endure as part of a real dispute over something that mattered.

While we accept the trial court’s purely factual findings, we cannot agree that the facts

establish a case against Mr. Rector for outrageous conduct and the intentional infliction of emotional

distress. The trial court incorrectly held that Mrs. Halliburton successfully made out a case against

Mr. Rector for that tort.

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The circuit court ruled that Mrs. Halliburton was entitled to damages based on outrageous

conduct, intentional infliction of emotional distress, and trespass. Mr. Rector’s notice of appeal

states that he takes issue with the trial court’s judgment awarding damages for trespass, but in his

brief, however, Mr. Rector presents this Court with no argument that the trial court erred in

concluding that his actions constituted trespass. His only argument is that the trial court erred in

finding outrageous conduct.

As a matter of appellate procedure, an appellant’s brief must include the issues an appellant

wants reviewed, see Tenn. R. App P. 27(a) (4), and, correspondingly, appellate review generally will

extend only to those issues. Tenn. R. App. P. 13(b). Issues not presented in an appellant’s brief

ordinarily will not be considered on appeal. Davis v. Department of Emp. Sec., 23 S.W.3d 304, 315

(Tenn. Ct. App. 1999). Though an issue may have been designated in the notice of appeal, a party’s

failure to brief it ordinarily constitutes waiver or abandonment of the issue. Cf. Walsh v. B.A., Inc.,

37 S.W.3d 911, 917 (Tenn. Ct. App. 2000); Maryville Housing Auth. v. Ramsey, 484 S.W.2d 73,

74 (Tenn. Ct. App. 1972). Generally speaking, appellate courts leave any unchallenged rulings as

the trial court determined them. See, e.g., Distasio v. Perkin Elmer Corp., 157 F.3d 55, 66 (2d Cir.

1998); Berberian v. Mitchell, 321 A.2d 431, 433 (R.I. 1974). They are, in effect, affirmed. In re.

Estate of Freeman, 240 So.2d 656, 657 (Fla. Dist. Ct. App. 1970); Luxon v. Caviezel, 710 P.2d 809,

813 (Wash. Ct. App. 1985). In this case, this Court could affirm the judgment against Mr. Rector

for trespass on those grounds alone.

However, even if we gave Mr. Rector the benefit of any doubt on this procedural point, the

result would be the same. As a substantive matter, the owner of a subservient estate has no legal

right to interfere with an easement holder’s enjoyment and use of the easement. Cooper v. Polos,

898 S.W.2d 237, 242 (Tenn. Ct. App. 1995); Phillips v. Gregg, 628 A.2d 151, 153 (Me. 1993);

Century Communications Inc. v. Housing Auth., 326 S.E.2d 261, 265 (N.C. 1983). For the

landowner to do so is clearly actionable. See Furrh v. Rothschild, 575 P.2d 1277, 1279-82 (Ariz.

Ct. App. 1978); Restatement (Third) of Property § 8.3. Mr. Rector’s proven actions in obstructing

Mrs. Hallilburton’s easement entitled her to damages against him.

Although Mrs. Halliburton was entitled to damages against Mr. Rector, it is not clear that the

circuit court used the correct measure in computing those damages. To that final issue we now turn.

Whether the trial court has utilized the proper measure of damages is a question of law that we

review de novo. See generally Sexton v. Sevier County, 948 S.W.2d 747, 749 (Tenn. Ct. App.

1997). On the other hand, the amount of damages actually awarded, where the amount is within the

limits set by law, is a question of fact. Spence v. Allstate Ins. Co., 883 S.W.2d 586, 594 (Tenn.

1994); Reagan v. Wolsieffer, 34 Tenn. App. 537, 542, 240 S.W.2d 273, 275 (1951). In cases where

the trial court is hearing the case without a jury, we review the amount of damages awarded by the

trial court with the presumption that it is correct, and we will alter the amount of damages only when

the trial court has adopted the wrong measure of damages or when the evidence preponderates

against the amount of damages awarded. Tenn. R. App. P. 13(d); Armstrong v. Hickman County

Highway Dep’t, 743 S.W.2d 189, 195 (Tenn. Ct. App. 1987).

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The normal legal principles of damages apply in easement cases. See generally Morgan

County v. Goans, 138 Tenn. 381, 383-84, 198 S.W. 69, 69–70 (1917). Courts must look to the

particular nature of the injury in choosing a correct measure of damages. The wrongful interference

with an easement can cause at least two different types of injury: injury to the land itself and

diminution of the easement holder’s use and enjoyment of his or her own property or the easement

property. Consequently, damages may be appropriately measured by either (1) any diminution in

the value of the easement holder’s property that relies on the easement (i.e., the dominant estate), or

(2) the cost to return the easement to its previous condition, or (3) the difference in the value of the

easement before the interference and its value after being obstructed. Expressway Assoc. II v.

Friendly Ice Cream Corp., 590 A.2d 431, 433 (Conn. 1991); see generally Restatement (Third) of

Property § 8.3(1).

In proper cases, courts may also award punitive damages for wrongful interference with an

easement. See, e.g., Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229 (Colo. 2001);

Sizemore v. H & R Farms, Inc., 638 N.E.2d 455, 458 (Ind. Ct. App. 1994). However, in easement

cases, as in other types of cases, courts may only award punitive damages if they find that the

plaintiff is entitled, first, to actual damages, Oakley v. Simmons, 799 S.W.3d 669, 672 (Tenn. Ct.

App. 1990), and that the one being sued has misbehaved intentionally, fraudulently, maliciously, or

recklessly. Hodges v. S.C. Toof & Co,, 833 S.W.2d 896, 901 (Tenn. 1992); Barnett v. Lane, 44

S.W.3d 924, 928 (Tenn. Ct. App. 2000). For punitive damages purposes,

a person acts intentionally when it is the person’s conscious objective or desire to

engage in the conduct or cause the result. A person acts fraudulently when (1) the

person intentionally misrepresents an existing, material fact or produces a false

impression, in order to mislead another or to obtain an undue advantage, and (2)

another is injured because of reasonable reliance upon that representation. A person

acts maliciously when the person is motivated by ill will, hatred, or personal spite.

A person acts recklessly when the person is aware of, but consciously disregards, a

substantial and unjustifiable risk of such a nature that its disregard constitutes a gross

deviation from the standard of care that an ordinary person would exercise under all

the circumstances.

Hodges v. S.C. Toff & Co., supra. Proof of the defendant’s wrongful conduct must appear by clear

and convincing evidence. Hodges v. S.C. Toof & Co, supra; Fulcher v. Allen, 2 S.W.3d 207, 218

(Tenn. Ct. App. 1999).

The trial judge likened Mr. Rector’s actions to “civil malicious prosecution,” which, in the

trial court’s opinion, included “filing of this lawsuit.” The judge then continued,

as such, the Court believes one element of damages will be in

attorney’s fees. The Court will allow [Mrs. Halliburton’s counsel] to

file an affidavit of his attorney’s fees, giving a copy to [opposing

counsel], and then on a motion day file a motion for attorney’s fees

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to be set as part of the compensatory damages in this case. In

addition, the Court will find $100 for the mailbox. The Court will

award another $500 for intentional affliction of emotional distress.

So that would be $600, plus attorney’s fees. The Court also finds that

there’s been a prima facie case made out for punitive damages. The

Court will, however, postpone the punitive damages hearing for not

less than one year from today. As to whether or not punitive damages

will ever be awarded in this case will depend on the future conduct of

Mr. Rector.

In this holding, the circuit court erred. This was not a malicious prosecution lawsuit, and the

measure of damages employed by the circuit court does not track the kind of damages allowable for

interference with an easement. In this state, attorney’s fees are normally not considered as an item

of damages, Howard G. Lewis Constr. Co., Inc. v. Lee, 830 S.W.2d 60, 65 (Tenn. Ct. App. 1991),

and, therefore, in the absence of a statutory provision or a rule of court or a contractual provision

between the parties, their allowance as part of damages is contrary to public policy. Morrow v.

Bobbitt, 943 S.W.2d 384, 392 (Tenn. Ct. App. 1996).

In this situation, attorney’s fees are not compensation to Mrs. Halliburton for temporary loss

of use of her easement or for her expense in removing Mr. Rector’s attempted obstructions of the

driveway. We therefore vacate that portion of the damages, $10,500.00, corresponding to Mrs.

Halliburton’s legal fees. Normally when a judgment is affirmed on the issue of liability but reversed

on the award of damages, the court of appeals remands for a new determination of damages.

Rothstein v. Orange Grove Ctr., Inc., 60 S.W.3d 807, 814 (Tenn. 2001); South Cent. Tenn. R.R.

Auth. v. Harakas, 44 S.W.3d 912, 921-22 (Tenn. Ct. App. 2000). On remand, the trial court shall

recompute any damages due Mrs. Halliburton for Mr. Rector’s unlawful interference with her

easement rights using the measure of damages we have set out above.

On the issue of punitive damages, we cannot approve of the trial court’s decision which held

the prospect of punitive damages over Mr. Rector in this case like a post-trial sword of Damocles.

While punitive damages unquestionably are meant in a general way to deter wrongful conduct in the

future, Coffey v. Fayette Tubular Prods., 929 S.W.2d 326, 328 (Tenn. Ct. App. 1996), courts should

not leave them undermined in amount and then pose them as an ongoing open-ended threat in a case

where liability for them has already been decided on the merits. We know of no authority for

holding the imposition of punitive damages in abeyance as a means of coercing a litigant. On

remand, the circuit court is ordered to fix any punitive damages based on Mr. Rector’s already-

proven conduct in interfering with Mrs. Halliburton’s property rights in the driveway easement.

Punitive damages in this case should not be set based on any of Mr. Rector’s actions after the court’s

May 19, 1999 “final” judgment.

In sum, (1) we affirm the unchallenged award for the wrongful taking of Mrs. Halliburton’s

mailbox; (2) we vacate the $10,500 in compensatory damages, which in reality was an inappropriate

award of attorney’s fees to Mrs. Halliburton as the prevailing party — these damages are to be re-set

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in accordance with the correct law; and (3) we order the trial court to determine the amount of

punitive damages on remand based on Mr. Rector’s pre-judgment conduct.

VII.

We affirm the judgment dismissing Mr. Rector’s suits against NES and Mrs. Halliburton.

We affirm the circuit court’s resolution of Mrs. Halliburton’s countersuit except as to damages. We

vacate the court’s award of damages to Mrs. Halliburton and remand the case for a proper

determination of damages. The costs are taxed equally to Mr. Rector and Mrs. Halliburton.

PER CURIUM

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