Pearson v. Ross, W2011-00321-COA-R3-CV

CourtCourt of Appeals of Tennessee
Writing for the CourtHOLLY M. KIRBY.
Docket NumberNo. W2011-00321-COA-R3-CV,W2011-00321-COA-R3-CV
Decision Date28 December 2011


No. W2011-00321-COA-R3-CV


July 20, 2011
Filed December 28, 2011

An Appeal from the Shelby County Chancery Court
No. CH1020491 Walter L. Evans, Chancellor

This appeal involves a nuisance claim. The parties own adjoining homes in a neighborhood of zero-lot line homes. The defendant's air conditioning condenser unit is outside his home, between the parties' homes. The plaintiff filed this lawsuit against the defendant, alleging that the noise of the defendant's air conditioning unit constituted a nuisance, and seeking abatement of the nuisance, money damages, and injunctive relief. After a bench trial, the trial court held in favor of the defendant. The plaintiff now appeals. We affirm.

Tenn. R. App. P. 3(d) Appeal as of Right; Judgment of the Chancery Court is

HOLLY M. KIRBY, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and DAVID R. FARMER, J., joined.

Prince C. Chambliss, Jr., Memphis, Tennessee, for the Plaintiff/Appellant Chandra Pearson.

William G. Hardwick, II, Memphis, Tennessee, for the Defendant/Appellee Victor Ross.1



In June 2007, Plaintiff/Appellant Chandra Pearson ("Pearson") moved into her residence on Charlton Way in Cordova, Tennessee. The neighborhood is a zero-lot line community, in which the homes are approximately seven feet apart. After Pearson moved into her home,

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she noticed that the air conditioning condenser unit ("AC unit") for the adjoining homeowner, placed between their homes directly outside Pearson's bedroom, was unduly noisy. The problem was not resolved before the next-door neighbor moved from the home.

In June 2008, Defendant/Appellee Victor Ross ("Ross") moved into the residence next-door to Pearson, on Charlton Way. After Ross had lived in the home for a few months, Pearson placed a letter in Ross's door, demanding that he move the AC unit to the other side of his house. After this letter was ignored, Pearson re-sent the letter to Ross via certified mail. Ross responded with a letter declining to move the AC unit, because he believed it was not illegal, and noting that the unit was there when he purchased the home. Further attempts to resolve the matter were unsuccessful.

On November 9, 2010, Pearson filed this lawsuit against Ross in the Chancery Court of Shelby County, Tennessee for abatement of a nuisance. The complaint alleged that Ross's AC unit constituted a nuisance, in that it was unreasonably loud and was run for an unreasonably long duration. The complaint alleged that the noise from the AC unit violated "national standards" and would disturb a person "with normal sensibilities." The complaint sought injunctive relief, and compensatory and punitive damages totaling $33,300.

Upon the filing of the complaint, Pearson obtained a temporary restraining order enjoining Ross from using his AC unit. Pearson's complaint asked the trial court to schedule a hearing on her request for temporary injunctive relief, pending the trial. The requested hearing was scheduled for November 22, 2010.

On the scheduled hearing date, Pearson was represented by counsel, and Ross elected to proceed pro se. At the outset of the hearing, counsel for Pearson sought to obtain Ross's consent to continue the injunction prohibiting him from using his AC unit, pending a trial on the merits. In doing so, Pearson's counsel stated:

[W]e intend to set this matter for trial. I'm going to go across to the clerk's office.
There is no proof necessary. We have the plaintiff in the courtroom. We have an expert witness, and we're prepared to go to trial as soon as the Court can accommodate us.
* * *
Now, plaintiff is prepared today, Your Honor, to testify. We have our expert witness here. We're prepared to put on all the proof necessary, we believe, to warrant this Court in entering a preliminary injunction, a temporary injunction to keep the matter status quo.

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Ross declined to agree to continue the injunction, as it prevented him from using his AC unit, and told the trial court he would "rather we just get this out of the way and done with. . . . I don't know what [Pearson is] expecting me to do, but I've got as much as I can get to defend myself." The trial court apparently agreed and instructed Pearson's counsel to commence with the trial and put on his proof. Pearson's counsel did so, without objection.

Pearson testified first, on her own behalf. She noted that, when she purchased her home, the seller gave her a disclosure statement indicating that the home had no neighborhood noise problems. Despite this, to Pearson's chagrin, the first night Pearson spent in her home, she heard a continual rumbling noise that she later determined was emanating from the AC unit of the adjoining home, which was later purchased by Ross. Pearson's initial efforts to obtain assistance regarding the noisy AC unit from Shelby County code enforcement officials proved unsuccessful.

After Ross purchased the home next door with the offending AC unit, Pearson said, she wrote a letter to him asking him to relocate the AC unit. When she received no response, she re-sent the letter via certified mail. Ross declined to move the unit. She complained that Ross ran his AC unit even when the outside temperature was below 60 degrees.

Pearson testified at some length about her efforts to record and measure the noise from Ross's AC unit with a noise measuring device that she acquired, and testified that the noise level inside her bedroom exceeded "national standards." Pearson introduced into evidence two videos she recorded, which she narrated, and various photographs she took of Ross's home and the adjoining property. She described her conversations with acoustics experts and her efforts to soundproof her bedroom. Pearson also recounted her contacts to various government officials, including city and county officials, the mayor, the judge of the local environmental court, and State officials in Nashville. She described her conversations with her psychologist about her stress and anxiety from living with the noise from Ross's AC unit, and submitted into evidence her medical records. Pearson said that Ross was not "considerate" and not a "good neighbor," and testified that he left grass clippings on her property after he mowed his lawn.

Pearson also submitted the testimony of an expert in acoustics. He opined that the noise from Ross's AC unit was "above that which the ordinary, reasonable person would be able to tolerate."

Ross testified on his own behalf. He said he had a heating and air conditioning company check his AC unit and he was told that it was running properly. Ross noted that Pearson moved to her home before he moved to the neighborhood, and the same AC unit was there when he moved in.

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Ross described Pearson's numerous complaints about a host of unrelated issues, such as persons parking close to a fire hydrant, grass on his property that was allegedly too high, grass clippings when the lawn was cut, a tent in his backyard for his young son, his car alarm, and the like. He said that Pearson harassed him by contacting a variety of authorities, such as code enforcement authorities, vector control, and the Sheriff's Department, and by constantly staring out her door at Ross's family and guests in an intimidating manner.

Ross submitted the testimony of a former neighbor. The neighbor testified that Pearson complained constantly about perceived problems with her small dog barking inside her home or how her grass was cut, and repeatedly reported her to the police and submitted a complaint to the environmental court about the dog barking in her home. After a hearing, she said, the judge of the environmental court told Pearson she had unusually sensitive hearing. Prior to Pearson moving into the neighborhood, the neighbor said, all of the neighbors would socialize in their yards and be friendly; this changed after Pearson moved in, put up "no-trespassing" signs in her yard,...

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