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 
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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

 

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.

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 
3

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 postjudgment 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).
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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:
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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. 
6

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 
7

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