### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 4, 1999 Se ssion

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 F ebruary 26, 2003

The residence owned b y Mrs. Halliburton had no access owing to highway construction. She acquired a driveway

easement from the adjoining landowner, who late r sold the proper

ty to Mr. Rector. An elec tric ser

vice line extended a

cross the front of Mr. Recto

r’s prope rty which was relocated. Mr. Rector’s efforts to purchase the Halliburton property we

re unavailing, and he bega n a policy of hara ssment pre sumably to acquire the property . He claimed, inter alia, that the easement terminatedbecause

it was improperly maintained, a nd that NES moved the service linewithout his permission and henc e was guilty of tresp ass. Mrs. Hallibur ton filed a

counter claim for damage s, chargingMr. Rector

with trespass and outrageous conduct. Mr. Rector’ s suit was dismissed, and the counter claim of Mrs. Hallibur

ton was su stained. The dismis sal of Mr. Rector’ s suit is affirmed; the award of attorney f

ees to Mrs. Halliburton is reversed; the case is remanded for a determination of the dama ges sust ained by Mrs. Hall

iburton, including

punitive d amage s. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part; Vacated in Part; Remanded
B EN H. C ANT RELL , P.J., M.S.,W IL LI AM C. K OCH , J R ., and W IL LI AM B. C AIN , J.J. Dan R. Alexander, Nashville, Tennessee, for the appe llant, E. Paul Rector. C. Dewey B ranstetter, Jr., Nashville, Tennessee, for the appellee, E lizabeth Halliburton. EugeneW. Ward and Laura I srael Smith, Nashville, Tennessee, for the appellee, The Electric Power Board of Nashville and Davidson County , Tennessee.1 Th e H alliburto ns’ were com pen sated for the tak ing of the ir entire p rop erty, but the State the reafter so ld them

the port ion not needed for r oad constru ction, which i ncluded the resi dence.

2 Which was duly recor ded. -2- OPINION PER CURIUM
I.
Elizabeth Halliburton and her husband, Robert Hallibur ton, now deceased , purcha sed a hou se andlot at 801 Pa

rk Terr ace in N ashville

in 1953, where they

resideduntil 1968 when they moved to Cl ar ks vi ll e. In F eb ru ar y 1 969 the Sta te, pursuant to its power of eminent domain, acquired a portion of the Halli burton’spropert

y for the construction of Inter state 65. This acquisition destroyed accessto the remainder of theHa ll ib ur to n p ro pe rt y. 1 In 1973, they acquired, by

purchase, an easeme nt, 2 for purposes of

access, from the owners of the adjacent property

at 803 Park Terrace. The easement providesthat its pur

pose is fo r ingre ss and eg

ress to801 Park Terrace, is ten feet in width, andmust be maintained, by “roc k, grav el or pave d” by Halliburton. This drivewa y easeme nt provides the only

accessto the house loc ated at 8 01 Park Te rrace and it hasbeen use d continuo usly 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 theHalliburtons. Mr. Rector also inqui

red of Mr s. Hallibu

rton if she would sell

her 801 Park Terrace proper ty, but she declined. Af

ter Mr. Halliburton died in 1991, Mr . R ec to r b ec am e m or e a ggr es si ve in hi s e ffor ts to ac qu ir e t he Ha ll ib ur to n p ro pe rt y.
One of hi s aggr

essive a cts involved the defendant Nashville Electric Service [NES] which furnishedpower to the Hallibur ton propert y. I

n 1995, NES relocated its transmission line to run across Mr. Rector’s front y ard, following which he h ad the meter o n his house reloca ted so tha t a different electrical line provided power to his residence. The service l ine extending across Mr. Rector’s front yard the

reafter was providing curr ent to Mrs. Halliburton’s house. Mr. Rector attempte d to persu ade NES to discontin ue servi ce to the

Hallibur ton house, but without

success
. Another of his aggressive acts trig gered bythe drive way easeme nt acros s his prope

rty occurred in 1995 when he in st al le d p os ts in th e d ri ve wa y, stating to Mrs. Ha

lliburton’ s son, Ken

t, that he haddone so. Kent rem oved the p osts, which were p romptly reinstalled by

Mr. Recto

r, this time in co ncrete. M r. 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 p ro perty . Kent ag ain remov ed the post s by sawing them at ground level. Mr. Rector removed the mailbox serving the Ha ll ib ur to n p ro pe rt y.3 She moved for a “ direct ed verdict ” which w as tre ated by t he t ria l ju dge as a Rul e 41 Motion sinc e only j uries

return verdicts.

4 Th e app ellant, in his “N otice o f Issues o n Ap pea l” comp lained only of the jud gment rend ered aga inst hi m. He did not

rai se an is sue of

the dis miss al of

his case . I n li ghtof al l the ci rcums tanc es we do not consi der this omiss ion harm ful. -3- Mr. Rector sued Mrs. Halliburtonand NES for damages for trespa ss, alleging that, as to NES, it trespas se d b y r ef

us in g t o r em ov e t he tr an sm is si on or se rv ic e l in e o ve r t he fr on t o f h is pr op er ty, and, as to Mrs. Hallibur

to n, that th e easement had reverted to him and she consequently had no lawful right to

traver se his pro

perty . Mrs. Ha

lliburton p

romptly filed a c ounterclaim against Mr. Rector seeking damages for tre spass, breach of co ntract , injunctive relief, intentional infliction of emotiona l distress , outrag eous con duct and t ortious int

erfer ence with busines s relatio ns.
II.
The case was heard without a jury on September

2, 1998. The Rule 41 Motion by NES for an In voluntary Dismissal was g ranted and all claims against NES were dismissed. T he Rule 5 0 Motion of Mrs. Halliburton 3 was granted and all claims ag ainst her were dismissed.
The counterclaim of Mrs. Halliburton was susta

ined as to outrag eous conduct and t respass
. As damages, she was awarded $100.00 for the mailbox removal by Mr. Rector, $10,500.00 a s dama ges for “ou trageous conduct, intentional infliction of emotional distress, and trespass,” tog ether with an inj unction e

njoining Mr. Recto

r from int erfer ing with t he ease ment.
The trial judge “postpone[d] a hearing on punitive damage s for a period of not less than one (1) yea r, with punitive damages to be considered based upon the f uture conduct of Mr. Rector.”
The plaintiff appeals and presents for review three iss ues: 4 (1) Whether the trial court erred in finding that

the plaintiff failed to prove a prima facie ca se of trespass; (2) whether the trial court erred in awarding damages a

gainst the plaintiff and counter- defe ndant for trespass, outrageous conduct, and intentional infliction of emotional distress; (3) whether the trialcourt erred in awarding punitive damag es and at torney fees. Re view is de novo with a pre sumption tha t 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 a n Order that the judgment was not final and

therefore not appealable. See , Tenn. R. App. P., Rul e 3(a). A final ju dgment i s one that resolve s all of the

claims betweenthe parties. Aetna Cas. & Sur. Co. v. Miller , 491 S.W.2d 85 (Tenn. 1973). Mr. Rector was directed to either obtain a f

inal judgment or show ca us e w hy 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.5 It seems reasonable to speculate that the rationale f or the deferred action was damocletan. -4- P., which allows trial courts “upon an express determination that there is no just reason fo r d el ay” 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 ob vious: the purp ose of Tenn. R. Civ. P. Rule 54.02 is to avoid piecemeal appealswhich wou

ld conce ivably cause a n injustic e owin g t o the dela y oc casione d by

appella te 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. 198 8); Stidham v. Fickle He irs , 643 S.W.2d 3 24 (Tenn . 1980). Wit hout these

certifications, a

case wit h multiple parties or multiple claims might be appealable ad infinitum and wreak havoc with the justi ce sy stem. But even a thoughtfu

l certif ication should be ma

de sparingly

and only in an infr

equent a nd harsh case. Compact v. Metro. Govt. of Nashville and Davidson Cty. , 786 F2d 227 (6 th Cir. Tenn. 1986).
The order of the trial court certify ing its original judgment as final was ineff ective f or the purpose. Mrs. Halliburt on sou gh t punitive damages from Mr. Rector, and although it wa s the judgmen t of the c ourt that s he had pr oved her entitleme nt to such damages, the award thereof was notdetermined but was held in abey ance for one y ear. Thus it is that the claim for punitive damages remained unresolved 5 betwee n the principal pa

rties.
But our inquiry do es not end at this point. P

rocedur ally , this cour

t may for goo d cause suspend the final judgment requirement in a particular case. See, Bayberry Assocs. v. Jones , 783 S.W.2d 553 (Ten

n. 1990); R

ule 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 unfa irly prejudic ed if all the issues are r e solved and the case is remanded for a de termination of the award of punitive damage s. Judi cial economy must interve ne at some point in the progress of a lawsuit, and w e accord ingly suspend Rule 3(a) Tenn. R. A pp. P.
IV.
We next consid

er Mr. Rector’s tr

espass c laim ag ainst NES. He testified that NES moved the power lines for merly 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 northeaster n corner of the property

at 80 3 Park Terrace for more than 20 year s, and served the residences at 801 and 803 Park Te rrace. Mr. Rector

purchased the 803 Park

Terrace property

in 1988; in 1995 NES relocated the service line so that it crossed Mr.-5-

Rector’s front yard and p

rovided c urrent to the Halli burton pr operty . The tria

l court he ld that NES owneda prescriptive easement over the prope rty of Mr. Rector; t

he electric lines remained in the samevicinity after re

location of a bridge project, but actually traversed a smaller portion of Mr. Re ct or ’s pr op er ty.
An easement

in land ma

y be acquired by

adverse use of possession for twenty y ears without color of title. German v. Graham , 497 S.W.2d 2 45 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.” I n order to acquire

a prescriptive easement, the use “must be adverse, under claim of right, continuous, uninterrupted , open, visi ble, exclu sive, and

with knowl edge and acquiescence of the owner of the servient tenement, and must continue for the full prescriptive period . . .” House v. Clo se , 346 S.W.2d 445 at 447 (Tenn. Ct. App. 1961). See, also, McCammon v. Mer

edith , 830 S.W.2d 577 at 580 (Tenn. Ct. App. 1991).
For at least forty (

40) years, NES maintained its line over the co rner of t he northeastern portion of the property

at 803 Park Terrace. By

1988, when Mr. Rector purchased the property, N

ES had long since acquired

a prescriptive easement. I n fact, he admitted

that he “didn’t feel like [he] had a complaint with the lines that were there for seve ral yea rs.”
He now cla

im s that NES does not ha ve a vali d easeme

nt over hi s proper

ty a nd appar ently bases that ass erti on on the movement of the lines by NES in 1995, wher e, as stated, NES was required to chang e the position of its l ines as a result of a Metro Wa

te rbridge project. The lines remained in the same vicinity on the northea stern corner of the Rector proper ty, bu t actuall

y traversed a much smaller portion of the property than they had pre

viously occupied.
In this jurisdiction, the owner of an easement “cannot mat eriall y increase

the burde

n of it upon the servient estate or impose the reon a n ew and additional burden.” Adams v. Winnet t , 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. A pp. 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 Terrac e. That purpose

has remained unchanged. The modification of the position of the line didnot affect the purpose of the easement. I n addition, the movement of the line did not increa se the burde n on the Re ctor pro

perty , becau se thereafter the line crossed only the northeastern corner of Mr. Rector’s property . As in Ogle v. Trotter , supra , it is fair

to state th at t

he relocation o f the service line decreased the burden on the servient e state. The trial court correct ly held that NES en jo yed a p re sc ri pt iv e e as em en t a cr os s M r. Re ct or ’s pr op er ty.
But had the reloc ation of the service line increased the burde n of the servient estate, Mr. Rector’s remedy

is clearly c ontrolled by statutory law. See, Tenn. Code Ann. § 29-16-101, et seq. NES has the right of eminent domain, and if it acquires private propert y w ithout exer

cising t he righ t,-6-

the landowner may

file an inverse condemnation action to recover

appropriate damages. But such ac tion must b e filed within twelve (12) months after the taking. Tenn. Code A nn. § 29-16-124; Vowell Ven tures v. City of

Martin , 47 S.W.3d 434 (Tenn. Ct. App. 2001). Since the service line was relo cated in

1995, the applica ble statut e of limita

tions clea rly is a bar to

a suit for damage s.
V.
Mr. Rector a

lso argues that h

is claim of

trespas s aga inst Mrs. Halliburton should not have been dismissed. He agreed that Mrs. Halliburton had a r ecorded easement, but that the easement had expired because it was “conditioned on a hard surfac e road, which was never done.”
An easement is a interest in another’s real property that confers on theeasement holder an enforc eable

right to use that real property

for a specific use. Bradley v. McLeod , 984 S.W.2d 929, 934 (T en n. Ct . A pp . 1 99 8) . E as em en ts ca n b e c re at ed in se ve ra l w ays : (1) e xpress 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 drivewa y easement was created by express grant in a recorded ag reement between the H alliburton s and Mr. Rector’s predecessor in title, Bessie Brown. When an easement is created by express gr

ant, the extent and any conditions on the easement must be determined by the g rant’s language. Foshee v. Brigman , 174 Tenn. 564, 567, 129 S.W.2d 207, 208 (1939).
The easement agreement in this case r ecites that the interstate project had unexpecte dly deprivedthe Halli

burtons of

accessto their pr

operty . It pr

ovides tha

t the Hall iburtons sou ght the easement as a mea ns of ing ress and eg ress f

rom Park Terrac e to their lot. I t expressly

convey s a perpetua l easement (that is, one lasting with no date to end) measured ten feet wide and runni n g within stated me

tes and bo unds. The easement is subject to these conditions: (1) that the hardsurfaced driveway tr

aversing 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) t hat any required moving of

ut il it y po li es or wa te r m et er s m ad e n ec es sa ry b y co ns tr uc ti ng th e d ri ve wa y b e a t the Hallibur tons’ expense; and (3) that the driveway remain a re side ntial mea ns of ing ress and egres s andnot become a through road. The agreement lastly provides that breach or other failure to comply withthe easement’s express conditions shall work a forfeiture of the easement and c ause the propert y interest it cover s to reve

rt to the g rantee or her su ccessor s.
Mr. Rector argues that for at least some of the time that he owned his property , the Halliburton drivewa

y w as not main

tained a s a

hard sur face. A ccordin g to him, Mrs. Halliburton’s failure prior to 1 994 to alw ay s maintain the ease ment drive

way strictly as a hard surface worked a forfeitureof the property

interest under the easement agre ement’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. Ci v. App. 19 30); howe ver, mor e is requ ired bef ore rev erter o ccurs.-7-

Ge ne ra ll y, easeme

nts deter minable 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 f

ails to com

ply with conditions subsequent. The two types of e asements do not work exactly the same. Ease

ments that endupon the happening of some future condition are said to terminate ipso facto upon the happe ning of th e s pe ci fi ed ev en t o r c on ti ng en cy. In other words, the easement comes to an end without the necessi ty of any reclaiming action by the owner of the subservient estate. See Irvin v. Petitf ils , 112 P.2d 688, 690-91 (C al. Dist. Ct . App. 194 1): Holchamp Lumber Co. v. State Highw ay 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. D

avis , 337 S.E.2d at 547. However, easeme

nts that ca

n be ended if the ho lder fa ils to compl

y w ith cond itions of the grant operate differently . When an easement is granted upon compliance with conditions subseque nt, the easement holder’s interest does not terminate automatically up on breach of the condition. Instead, it cont inues in e xistence u

ntil the ow ner of th

e subser vient esta te exerc ises a holder’s interest. Standard Knitting Mills, In c. 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 r

emain s as befo

re,” wit h the eas ement hol der cont inuing 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 Augus t 1994, the

Hallibur ton driveway

across Mr. Rector’s property arguably was notmaintained as a hard surface. Mr. Rector described it as “dirt . . . [with] some smat terin g o f grave l, very little.” Howe

ver, at no time prior to August 1994 did Mr. Rector take affirma tive action towardMrs. Halliburton to legally terminate her property

interest for failur e to comp ly with conditions placed o n the eas ement. At trial, Mr s. Halliburton was asked, “ When was th

e first tim e you ever me

t or talkedwith Mr. Rector, your ne xt-door neighbor?” She replied: “Well, I was out there one day . I ha

d ordered rocks, a

nd I w as standing ther

e inmy drive, a

nd the rock man had backed in fixing to unload, and he [Mr. Rector] ran out trying to stop the roc k 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 y ou knew w hen y ou bough t this prope

rty that this e asement

was her e.’” Th at was in August of 1994. As far as the record shows, the drivew ay has bee n maintained as a h ard surfac e graveldrive since. I

f Mrs. Halliburton prior to August 1994 arguably failed to meet a conditionof her easement, the property

interest did not automatically reve rt to Mr. R ector, and he made no reentry upon t he ease ment p rior t o her gra velin g of the road to forfeit her interest. Her easement continue s accor

ding to th e terms of the gra nt.
Mr. Rectorsued for trespass. Trespass upon real proper ty entails the unauthorized, a n d thereforeunlawful entry into the c lose of another. We st 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 fa iled to prove tha

t Mr s. Hall iburton’s driveway constituted a trespass. The driveway ran across his lot pursuant to a leg ally -recog

nized prop erty

interest held by Mrs. Halliburton that was fully in eff ect when Mr. Rector instituted this suit. For that reason, her use of the driveway

was not an unlawful-8-

entry upon Mr. Rector’s neighboring proper ty. Bec ause Mr. Rector

failed to make out a

prima fa cie case fo r trespa ss, the tri al court

properl y di smissed the

claim.

VI. Having determined that Mr. Rector’s claims were properly dismissed, we now c onsider the trial court’s disposition of Mrs. Halliburton’s countersuit. The court found that she had made out a compen sable ca se against Mr. Rector for outrageous conduct, intentional infliction of emotional distress, and tres pass. On a ppeal, Mr . Rector a

rgues t hat the c ircuit co

urt erred in findin g his behavior to be act ionable a s outrag eous conduct. In re viewing this issue, we indulge the trial court’s finding of the facts with a presumption of correctness unless the evidence preponde rates otherwise. Thurmond v. Sel

lers , 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 tortof outrag eous conduct

. See, e.g., Weathers v. Pilkinton , 754 S.W.2d 75, 77 (Tenn. Ct. App. 1988). Determining the sufficien cy of evidenc e to esta blish the e

lements of

a cause of actio n 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 6 18 n.3 (Te nn. 1997) . To estab lish the tort, a plaintiff must show three things: (1 ) that the con duct complained-of was intentional or reckle ss, and (2) that

it was so outrageous so as to be intolerable in civilized society , and (3) that it caused serious mental inj ury

to the plaintiff. Miller v. Willbanks , 8 S.W.3d 607, 612 (Tenn. 1999); Lyons v. Fa

rmers Ins. Exch. , 26 S.W.3d 888, 893 (Tenn. Ct. App. 2000).
Alth ough n o perfe ct lega

l standar d exists for

determin ing whe ther par ticular c onduct is s o intolera ble so as to be tortious, our courts often employ the thresho ld standard set out in the Restatem ent (Sec ond) of T orts:
It has not been enough that the defendant has a cted with an intent which is tortious or even cr iminal, or that he ha s intende d to inflic t emotiona l distress , or eventhat his conduct has beencharacterized by ‘malice ’ or a de gree o f agg ravatio n which wo

uld entitle the plaintiff to puni ti ve damages for another tort. L iability has been found only where the conduct has been so outrag eous in character, and so extreme in degree, as to g o bey ond all bounds of decency , and to be regarded as atr ocious and utterly intolera ble in a civilized community. Generally , the case is one in which the recitation of the facts to an aver age membe r of the c ommunity would ar ouse his resentment against the actor, and lea d him to exclaim, ‘Outrageous.’-9-

Bain v . Wells , 93 6 S.W.2d at 623 (quoting Restatement (Second) of Torts § 46, cmt.d (1965)); Newsom v. Textron Aerostructures , 924 S. W. 2d 8 7, 9 8 (T enn . C t. App . 19 95) . In terms of causing “serious mental injury,” the plaintiff must prove tha t the putative wrongdoer’s actions put him or her under so much me

ntal distress t

hat a re asonable

person, normally

constituted, would be

unable to cope. Ramsey v. Be

avers , 931 S.W.2d 527, 532 (Tenn. 1996). Only w here mental discomfiture becomes extreme does legal liability ar ise. As the courts ha

ve said, c omplete e

motional tr

anquility is seldom attainable in this world, and some degree of tempor

ary upset fr om time to time com

es with living among people. The l aw intervenes only whe n 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 rec ord suppo

rts the finding that after Mrs. Halliburton and her l ate husba

nd refus ed to sell 801 Park Terrace to him, Mr. Rector began to enga ge in a c ourse of

conduct d

ecidedl y un friendly to his neighb or. He in

terfer ed 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 ma

il box itself. He told a prospective tenant that he was going to ha ve the electrical lines ser

vicing t he prope rty taken down, and, in

fact, la ter atte mpted toforce NES to take down the l ine servicing the pr operty – even to t

he point of

bringing suit. H e confr onted Mrs

. Halliburton personally on the prop erty and in formed 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 setti ng posts acr

oss the dr ive, pre sumably

as a pre requisite to running a fence across it. At one p oint his tru ck was pa rked ac ross the d rive so a s to block it.
These were spiteful actions and

Mrs. Halliburton was understandably upset. She lived away from the prope rty and could

not easily keep up with any mischief occurring there. She at times had to use her son and da

ughter as proxiesin counte

ring som e of Mr. Rector’s mo ves. She made several anxious phone calls to NES out of fear that Mr. Rector would somehow succeed in shutting off power to the pr operty . 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 a s a lega

l matter th at it was “ so extreme in degree as tobe beyond a ll bounds of decency ” and thus constitute actionable outra ge ous condu ct. Neith er may we hold th at Mrs. Halliburton’s emotional upset constituted severe mental injury. She was disturbed but not distraught beyond all reas on; she wa s pertur bed but n ot pros trated by Mr. Rector’s acts. She experienced emotional distress from having to counter an aggre ssive, overreaching person, but this Court cannot saythat her discomfiture was beyond what a reasonable person might be e xpected to temporaril y endure as part of a real dispute over some thing that mattered.
While we acc ept the tr

ial court’spurely

factua l finding s, we ca

nnot ag ree tha t the facts establish a case against Mr. Rector

for outrageous conduct

and the intentional infliction of emotional distress. The tria

l court inc orrect

ly held that Mrs. Hallibu

rton succ essfully

made out a

case ag ainst Mr. Recto

r for tha t tort.-10-

The circuit court ruled that Mrs. Halliburton was entitled to damages ba sed on outrageous conduct, intentiona

l infli cti on of emotional distress, and trespass. Mr. Rector’s notice of appeal states that he ta

kes issue with the tr

ial cour t’s judg ment awa

rding da mages f or tresp ass, but in

his brief, however, Mr. Rector presents this Court with no argument tha t the trial court er red in concluding that his actions cons tituted tr espass. His only

argume nt is that th

e trial c ourt err

ed in finding outrag eous con duct.
As a matter of appellate procedure, a n appellant’s brief must include the issues an appellant wants reviewed, see Tenn. R. App P. 27(a) (4), and, correspondingly , appellate review gener ally will exte nd o nly to those issues. Tenn. R. App. P. 13(b). I ssues not presented in an appellant’s brief ordinar ily 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 a ppeal, 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, 9 17 (Tenn . Ct. App. 2 000); MaryvilleHousing Auth. v. Ramsey , 484 S.W.2d 73, 74 (Tenn . Ct. App. 1 972). Ge nerally speaking , appella

te court s leave any

unchallenged rulings as the trial cou

rt deter mined the m. See, e.g., Distasio v. Perkin Elmer Corp. , 157 F.3d 55, 66 (2d Cir. 1998); Berberian v. Mitche ll , 321 A.2d 431, 433 (R.I . 1974). T hey are, in e ffect, affirmed. In re. Estate of Freeman , 240 So.2d 65 6, 657 (F la. Dist. Ct . App. 197 0); 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 s ubser vient 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 A uth
. , 326 S.E.2d 261, 265 (N.C . 1983). For the landowner

to do so is clearly actionable. See Furrh v. Rothsc hild , 575 P.2d 1277, 1279- 82 (A riz. Ct. App. 1978); Restatement (Third) of Property § 8.3. Mr. Rector’s proven actions in obstructing Mrs. Hallilburton’s easement entitled her to damages ag ainst him.
Alth ough 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 th e proper measure of damag es is a question of law that we rev iew de novo. S ee generally Sexton v. Sevie r 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 whe re the trial court is hearing the case without a jury , we review the amount of damages awa rded by the trial court wit

h the presumption that it is correct, and we will alter the amount of damag es only when the trial court has adopted the wrong measure of damages or when the evidenc e preponderates agains tthe amount of damages awarded. Tenn. R . App. P. 13 (d); Armstrong v. Hic kman County Highway Dep’t , 743 S.W.2d 189, 195 (Tenn. Ct. App. 1987).-11-

The normal legal pr

in ciples 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 withan easement

can cau se at least two different ty pes of injury: injury

to the land itself and diminution of the easement holder’s use and enjoy ment of his or her own property or the easement prop er ty. Co nsequen

tly, damage s may

be appro priately measured by

either ( 1) any

diminution in the value of

the easement holder’s propert y th at relie s on the ea sement ( 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 a nd its value after bei ng obstructed. Expressway Assoc. II v. Friendly Ice Cream Corp. , 590 A.2d 431, 433 (Conn. 199 1); see gene rally Restatement (Third) of Property § 8.3(1).
In proper c ases, courts may also aw ardpunitive damages for wrongful inter ference with an easemen t. 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 typesof case s, 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, 6 72 (Tenn . Ct. App. 19 90 ), an d t ha t t he on e b ei ng su ed ha s m is be ha ve d i nt en ti on al ly, fr au du le nt ly, maliciously, or re ck le ss ly. Hodges v. S.C. Toof & Co, , 833 S.W.2d 896, 901 (Tenn. 199 2); Barnett v. Lane , 44 S.W.3d 924, 9 28 (Tenn . Ct. App. 2 000). Fo r punitive damage s purpose s,

a p erson acts intentionally whe n it is the person’s conscious objective or d esire t o engage in the conduct or cause the resul t. A per son acts fraudulently when (1) the person intentio nally

misrepre sents an e

xisting, ma

terial f act or pr oduces a false impression, in order

to mi slead a nother or to obtain an undue advantage, a nd (2) another is injured because of reasonable relianc e upon that representation. A person acts maliciously when the per son is motivated by ill will, hatred, or pe r sonal spite. A person acts recklessly

when the person is aware of, but consciously disreg ards, a substantial and unjust

ifiable r isk of such a natur

e that its disregard

constitute s a gros s deviation from the standard of care that an ordinar y pe rson woul d exercis e under all the circumstance s. Hodges v. S.C. Toff & Co. , supra. Proof of the defendant’s wrongful conduct must appear by

clear andconvincing 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 c ontinued,

as such, the Court believes one element of damage s will be in attorney’sfees. The Court will allow [Mrs. Halliburton’s counsel] to fi le an affidavit of his attorney ’s fees, giving a copy to [opposing coun sel], and then on a motion day file a motion for

attor ney’s fees-12- to b e set as p art of t he c om pen sat ory d ama ges in th is cas e. In ad d ition, the Court will find $10 0 for the mailbox. The

Court will award another $500 for intentiona

l afflic tion of emotional dist ress. So that would be $600, plus attorney’s f ees. The Court also finds that there’s been a

prima facie case made

out for punitive damages. The Courtwill, however, postpone the punitive damages hearing for not less than one yea r f

ro m t od ay. 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 employ ed by the circ

uit court does not track the kind of damages allowable for interference

withan ease

ment. I n 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 6 0, 65 (Te nn. Ct. App. 1991), and, therefore, i n t he absence of a statutory provision or a rule of court or a contractual provision bet weenthe parties, their allowance as part of dama ges is contrary

to public policy. M

orrow v
. Bobbitt , 943 S.W.2d 384, 392 (Tenn. Ct. App. 1996).
In this situation, attorney’s fees a re not compensation to Mrs. Halliburton for temporary loss of use of her easement or for her e xpense in removing Mr. Rector’s attempted obs tructi ons of the dr iv ew ay. We therefore va cate tha t portion o f the damages, $10,500.0 0, corre sponding 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 c ourt of appeals remands for a new determina tion of da

mages. Rothstein v. Orange

Gro ve Ctr., Inc. , 60 S.W.3d 807, 814 (Te nn. 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 sha ll recompu te an y damages due Mrs. Halliburton for Mr. Rector’s unlawful interfere nce 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 tri al court ’s decis ion which held the prospect of punitive damages over Mr. Rector in this case like a post-tria l sword of

Damocle s. While punitive damage s unquesti onably are meant in a general way to deter wrongful conduct in the future, Coffey v. Fayette

Tubular Pro ds. , 929 S.W.2d 3 26, 328 (Tenn. Ct. Ap p. 1996), courts should notleave them under

mined in amount and then pose them as an ong oing ope

n-ended threat in a case where liability for them has alrea dy been decided on the merits. We know of no authority for holdi ng the imposit

i on of punitive damages in abey ance as a means of coerc ing a litigant. On remand, t h e c ir cu it co ur t i s o rd er ed to fi x a ny p un it iv e d am ag es ba se d o n M r. Re ct or ’s al re ad yproven conduct in interfering wi th Mrs. Hall iburton’ s proper

ty r ights in th

e drivew ay

easeme nt. 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” ju dgment.
In sum, (1) we affirm the unchallenge d award for the wrongful taking of Mrs. Halliburton’s mailb ox; (2) we vacate the $10,500 in compen satory

damage s, which in

reality was an in appropr

iate award of attorney’ s fe es to Mr s. Ha ll ib ur to n a s t he pr ev ai li ng pa rt y —these damages are to be re -set-13-

in accord ance with the cor rect law ; and (3) we orde r the tr ial cour t to determine the amount of punitive d amage s on rema nd based on Mr. Rector’s pre -judgme nt conduct.
VII.
We affirm t

he judg ment dismis sing Mr. Rector’ s suits ag ainst NES a nd Mrs. Ha

ll iburt on. We affirm t

he circuit court’ s resoluti on of Mrs. Halliburton’s countersuit except as to damages. We vacate t he court’s award of damage s to Mrs. Halliburton and remand the case for a prope r determination of damages. The costs are taxed equally to Mr. Rector and Mr s. Halliburton.

PER CURIUM