Rebecca Prince v. A&W Construction and Property Management, LLC

03/28/2025

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 6, 2024 Session

REBECCA PRINCE v. A&W CONSTRUCTION AND PROPERTY

MANAGEMENT, LLC ET AL.

Appeal from the Circuit Court for Maury County

No. 17402 M. Caleb Bayless, Judge

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No. M2023-00449-COA-R3-CV

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A property owner filed a complaint against her neighbor and the municipality seeking to

enforce a local zoning ordinance. The trial court dismissed the property owner’s claims

against the municipality. Among other things, the court ruled that mandamus was not

available because the property owner failed to exhaust her administrative remedies. It

also determined that the municipality retained immunity for the tortious acts alleged in

the complaint. On appeal, the property owner argues that (1) Tennessee Code Annotated

§ 13-7-208(a)(2) authorized her to bring a mandamus action to abate the zoning violation

without exercising administrative remedies and (2) the complaint contained sufficient

allegations of negligent supervision to withstand a motion to dismiss. Upon review, we

affirm the dismissal.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and JEFFREY USMAN, J., joined.

T. Jake Wolaver and Joshua L. Hogan, Columbia, Tennessee, for the appellant, Rebecca

Prince.

William C. Mazzota and Benjamin Charles Allen, Brentwood, Tennessee, for the

appellee, City of Mount Pleasant, Tennessee.

L. Bruce Peden, Columbia, Tennessee for the appellee, A&W Construction and Property

Management, LLC.

OPINION

I.

Rebecca Prince owned residential property in Mount Pleasant, Tennessee. A&W

Construction and Property Management, LLC owned the adjacent property. On

December 29, 2022, Ms. Prince filed a verified complaint against A&W Construction and

the City of Mount Pleasant, Tennessee, seeking to enforce a zoning ordinance.

According to the complaint, the City issued A&W Construction a permit to

remodel an existing home on its property. During construction, the home was

“completely demolished,” and crews began work on a new foundation. On November 8,

2022, Ms. Prince “realized that the builders were erecting the new foundation within two

feet of the property line,” a distance she believed was in violation of the zoning

ordinance. She reported the violation to Mr. Howell, the City’s zoning and codes

enforcement officer. The City issued a stop work order that same day.

A&W Construction obtained a permit for the construction of a new principal

structure on November 9, 2022. The zoning ordinance prohibited “the issuance of any

building permit without verification that the proposed use conforms with the zoning

code.” Yet the proposed new structure was already in violation of the zoning code when

the permit was issued. Thus, the complaint alleged that the November permit “was

invalidly issued because it allow[ed] for the expansion of a nonconforming structure

without an approved variance to [an unlicensed] contractor.”

This time, when Ms. Prince reported her concerns to city officials, the City failed

or refused to enforce the zoning ordinance. On November 10, Ms. Prince corresponded

with Mr. Howell about the ongoing zoning violation. In response, he shared an email

from the city attorney opining that the recent permit was validly issued. A few days later,

Ms. Prince reported the violation to the city manager. The city manager informed her

“that the new construction was not in violation of City Code and no action would be

taken.” Ms. Prince alleged that the City’s decision was politically motivated. One of the

members of A&W Construction was a city council member. So “it appear[ed] that the

City [wa]s giving favorable treatment to the Defendant as a political favor.”

Ms. Prince sought several forms of relief in the complaint. Count one asked the

court to declare the permits invalid. Count two requested a writ of mandamus ordering

the City to issue a stop work order and revoke the invalidly issued permits “or show

cause why it has not done so.” Count three sought injunctive relief. Count four alleged

liability for negligent and intentional misconduct. Counts five and six asserted claims

against A&W Construction for trespass and nuisance.

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The City moved to dismiss the first four counts in the complaint. See TENN. R.

CIV. P. 12.02(6). It argued that the proper way to review an administrative zoning

decision was through a writ of certiorari, not a declaratory judgment or mandamus. But

Ms. Prince did not pursue the administrative remedy. And a writ of mandamus could not

be used to compel city officials to perform a discretionary act. As for count four, the City

maintained that it retained immunity for the negligent issuance of a building permit and

the complaint lacked sufficient factual allegations to support an intentional tort for which

immunity had been waived.

The trial court dismissed the claims against the City with prejudice and designated

the dismissal as final. See id. 54.02. The court rejected Ms. Prince’s argument that

Tennessee Code Annotated § 13-7-208(a)(2) provided her with an independent cause of

action to enforce the zoning code. The court dismissed the first three counts in the

complaint based on Ms. Prince’s failure to exhaust her administrative remedies. The

court also held that count four failed to state a claim against the City for negligence or

intentional misconduct.1

II.

A Rule 12.02(6) motion “challenges only the legal sufficiency of the complaint.”

Webb v. Nashville Area Habitat for Human., Inc., 346 S.W.3d 422, 426 (Tenn. 2011).

Thus, “[t]he resolution of a 12.02(6) motion to dismiss is determined by an examination

of the pleadings alone.” Id. It does not challenge the strength of the plaintiff’s proof or

evidence. Id.

When faced with this type of motion, the court must “construe the complaint

liberally, presuming all factual allegations to be true and giving the plaintiff the benefit of

all reasonable inferences.” Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691,

696 (Tenn. 2002). A complaint “need not contain detailed allegations of all the facts

giving rise to the claim,” but it “must contain sufficient factual allegations to articulate a

claim for relief.” Webb, 346 S.W.3d at 427 (quoting Abshure v. Methodist Healthcare-

Memphis Hosps., 325 S.W.3d 98, 103-04 (Tenn. 2010)). This determination presents a

question of law, which we review de novo, with no presumption of correctness. Doe v.

Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999).

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Ms. Prince appealed the court’s dismissal of her claims against the City. A&W Construction is

participating in this appeal because the trial court also dismissed some of the claims against A&W

Construction based upon Ms. Prince’s failure to exhaust administrative remedies.

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A.

Ms. Prince contends that we “should reverse the trial court’s dismissal of the City

because . . . Tenn. Code Ann. Section 13-7-208(a)(2) provides [her] with a cause of

action for mandamus.” Ms. Prince relies on this statutory provision:

In case any building or structure is or is proposed to be erected,

constructed, reconstructed, altered, converted or maintained, . . . in

violation of any [zoning] ordinance . . . [,] any adjacent or neighboring

property owner who would be specially damaged by such violation, may, in

addition to other remedies, institute injunction, mandamus or other

appropriate action or proceeding to prevent such unlawful erection,

construction, reconstruction, alteration, conversion, maintenance or use, or

to correct or abate such violation, or to prevent the occupancy of the

building, structure or land.

Tenn. Code Ann. § 13-7-208(a)(2) (2019).

Statutory interpretation presents a question of law, which we review de novo.

Pickard v. Tenn. Water Quality Control Bd., 424 S.W.3d 511, 518 (Tenn. 2013). Our

objective is to determine the statute’s meaning. State v. Deberry, 651 S.W.3d 918, 924

(Tenn. 2024). In determining meaning, we give the words of the statute their “natural

and ordinary meaning in the context in which they appear and in light of the statute’s

general purpose.” Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012). “When

a statute’s meaning is clear and unambiguous after consideration of the statutory text, the

broader statutory framework, and any relevant canons of statutory construction, we

‘enforce the statute as written.’” Deberry, 651 S.W.3d at 925 (quoting Johnson v.

Hopkins, 432 S.W.3d 840, 848 (Tenn. 2013)).

Based on the allegations in the complaint, Ms. Prince meets the statutory criteria

for bringing an action to enforce the zoning code. See Patterson v. Cook, 655 S.W.2d

955, 960 (Tenn. Ct. App. 1983). She is “an adjacent or neighboring property owner” who

has allegedly suffered special damages caused by violation of the zoning ordinance. See

id. So she had standing to “institute injunction, mandamus or other appropriate action or

proceeding to prevent . . . or . . . correct or abate” the violation. See id.

As Ms. Prince points out, the statutory right to institute a mandamus action is “in

addition to other remedies.” Thus, she was not limited to a common law writ of

certiorari. See Simmons v. City of Lexington, 11 S.W.3d 136, 140 (Tenn. Ct. App. 1999).

Still, this does not mean that she was free to bypass the administrative process.

Mandamus has a well-recognized common law meaning. See Lively v. Am. Zinc

Co. of Tenn., 191 S.W. 975, 978 (Tenn. 1917); In re Est. of Starkey, 556 S.W.3d 811, 817

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(Tenn. Ct. App. 2018). Absent a specific statutory definition, we presume that common

law meaning applies here. Lawson v. Hawkins Cnty., 661 S.W.3d 54, 61 (Tenn. 2023).

“A writ of mandamus is an extraordinary remedy.” Cherokee Country Club, Inc.

v. City of Knoxville, 152 S.W.3d 466, 479 (Tenn. 2004); Meighan v. US Sprint Commc’ns

Co., 942 S.W.2d 476, 479 (Tenn. 1997); State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567,

570 (Tenn. Ct. App. 1994). The writ may be issued to enforce a “clearly established”

right when “there is no other plain, adequate, and complete method of obtaining the relief

to which one is entitled.” Cherokee Country Club, Inc., 152 S.W.3d at 479 (quoting

Meighan, 942 S.W.2d at 479). Conversely, mandamus is not an available remedy “if the

petitioner has a legal remedy that is equally convenient, complete, beneficial, and

effective.” Meighan, 942 S.W.2d at 479.

Here, Ms. Prince had an available administrative remedy. She could have

appealed the issuance of the permit to the Board of Zoning Appeals. See Tenn. Code

Ann. § 13-7-206(b), -207(1) (2019). Section 4.3 of the Zoning Ordinance of the City of

Mount Pleasant allowed the “owner of any property in the city, their authorized agent or

any resident that is directly affected by a decision made under this ordinance by the

planning department” to file an administrative appeal. The Board could have reversed,

affirmed, or modified the planning department’s decision. See State ex rel. Poteat v.

Bowman, 491 S.W.2d 77, 80 (Tenn. 1973). Yet Ms. Prince chose not to pursue her

administrative remedy.

Ms. Prince argues that the statute does not expressly require exhaustion of

administrative remedies as a prerequisite to an enforcement action. But the lack of an

express statutory requirement is not dispositive. “Absent a statutory mandate, the

decision on whether to dismiss a case for failure to exhaust administrative remedies is a

matter of judicial discretion.” Chattanooga-Hamilton Cnty. Hosp. Auth. v.

UnitedHealthcare Plan of the River Valley, Inc., 475 S.W.3d 746, 758 (Tenn. 2015).

Generally, our courts impose an exhaustion requirement in zoning matters. See State ex

rel. Moore & Assocs. v. West, 246 S.W.3d 569, 580 (Tenn. Ct. App. 2005); see also

Thomas v. State Bd. of Equalization, 940 S.W.2d 563, 566 (Tenn. 1997) (explaining the

purpose of the exhaustion doctrine); State ex rel. Poteat, 491 S.W.2d at 79-80 (affirming

decision to dismiss complaint for a writ of mandamus based on failure to exhaust

administrative remedies). Public and judicial policy favor “permitting the community

decision-makers closest to the events, who have been given broad powers in the area, to

make zoning and land use decisions.” State ex rel. Moore & Assocs., 246 S.W.3d at 575.

Thus, our “courts give wide latitude to local officials who are responsible for

implementing zoning ordinances, are hesitant to interfere with zoning decisions, and will

refrain from substituting their judgments for that of the local governmental officials.” Id.

Ms. Prince’s reliance on Simmons v. City of Lexington, 11 S.W.3d 136 (Tenn. Ct.

App. 1999), to argue otherwise is misplaced. Simmons does not stand for the proposition

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that a plaintiff bringing an action under this statute is excused from the exhaustion

requirement. In Simmons, the petitioner appeared before the Board of Zoning Appeals.

11 S.W.3d at 138. The Board had an opportunity to consider whether the construction on

the neighboring property violated the zoning code. Id. Yet it ultimately approved the

building permit and allowed construction to continue. Id. Failure to exhaust

administrative remedies was not an issue. See id. at 139-40.

Exhaustion is not required when the exercise of an administrative remedy would

be futile. See Cherokee Country Club, Inc., 152 S.W.3d at 479; State ex rel. Poteat, 491

S.W.2d at 80; Coe v. City of Sevierville, 21 S.W.3d 237, 241-42 (Tenn. Ct. App. 2000).

But that is not the case here.2 Under the zoning ordinance, appeals must be filed within

30 days of the decision at issue. Ms. Prince contends that she did not know about the

invalidly issued permits until it was too late. The allegations of the complaint belie this

contention. A&W Construction obtained the second permit on November 9, 2022.

Ms. Prince contacted city officials about the continuing violations on November 10 and

15, well within thirty days of the issuance of the second permit. Ms. Prince had sufficient

notice to file an administrative appeal contesting the issuance of the second permit. Her

failure to do so deprived the Board of Zoning Appeals of the opportunity to enforce the

zoning ordinance. See State ex rel. Poteat, 491 S.W.2d at 80 (presuming that the Board

of Zoning Appeals would have performed its duty); State ex rel. Jones v. City of

Nashville, 279 S.W.2d 267, 268 (Tenn. 1955) (noting that courts should presume that

administrative authorities will “do the correct thing and if given a full chance to fully

pass upon the matter they will determine it correctly”).

The trial court did not err in dismissing the first three counts in the complaint

based on Ms. Prince’s failure to exhaust her administrative remedies. So we do not

address the parties’ arguments as to whether mandamus was otherwise appropriate.

B.

The Governmental Tort Liability Act (“GTLA”) provides general immunity from

tort liability to municipalities when engaged in governmental or proprietary functions.

Tenn. Code Ann. § 29-20-201(a) (2024); Kirby v. Macon Cty., 892 S.W.2d 403, 406

(Tenn. 1994). The Act then waives immunity for injuries caused by negligent acts of

employees, including the negligent supervision of other employees, with ten enumerated

exceptions. Tenn. Code Ann. § 29-20-205 (2024); Lawson, 661 S.W.3d at 67; Hughes v.

2

Some states extend the time for filing an appeal when an adjoining landowner learns of the

zoning decision too late. See, e.g., Shors v. Johnson, 581 N.W.2d 648, 652 (Iowa 1998) (holding the time

period for filing an administrative appeal began when the adjoining landowner “had actual or constructive

notice of the zoning administrator’s decision”); Berryman v. Wyo. Borough Zoning Hearing Bd., 884

A.2d 386, 389 (Pa. Commw. Ct. 2005) (noting that when “an objector proves he lacked notice of the

issuance of a permit, the 30-day appeal period is tolled until he possesses knowledge or a ‘reason to

believe’ the approval was granted”).

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Metro. Gov’t of Nashville & Davidson Cnty., 340 S.W.3d 352, 368-69 (Tenn. 2011).

Two exceptions to the immunity waiver are relevant here. Municipalities retain

immunity for injuries arising out of the issuance or denial of a building permit and/or the

“failure to make an inspection, or by reason of making an inadequate or negligent

inspection of any property.” Tenn. Code Ann. § 29-20-205(3)-(4).

To avoid this obstacle, Ms. Prince insists that the complaint asserted a claim for

negligent supervision of intentional misconduct by a City employee. The City cannot be

held liable for an intentional tort “absent proof of its negligent supervision.” Lemon v.

Williamson Cnty. Sch., 618 S.W.3d 1, 23 (Tenn. 2021) (citation omitted). “To state a

claim for negligent supervision, a complaint must allege that the defendant had notice of

the wrongdoer’s propensity to harm, authority to prevent the harm, and a duty of care to

those who were harmed.” Id.

The complaint alleged these facts. The City had a duty to enforce the zoning code.

In violation of that duty, the City issued two building permits to A&W Construction.

Mr. Howell, the zoning and codes enforcement officer, issued a stop work order when

Ms. Prince first reported the zoning violation on her neighbor’s property. But after the

second permit was issued, Mr. Howell failed or refused to issue another stop work order.

Ms. Prince then voiced her concerns with the city manager, who informed her that the

construction did not violate the zoning code and no action would be taken. Given that

one of the members of A&W Construction was also a city council member, the City’s

failure to enforce the zoning ordinance appeared to be politically motivated.

Construing these allegations liberally, we discern no facts that would support a

claim of negligent supervision. “[H]yperbole and conclusory statements do not take the

place of alleging actual facts.” Brown v. Mapco Exp., Inc., 393 S.W.3d 696, 703 (Tenn.

Ct. App. 2012). Nor can we reasonably infer from the alleged facts that the City failed to

adequately train and supervise Mr. Howell. Thus, the City retains immunity for

Mr. Howell’s allegedly intentional conduct.

III.

The trial court properly exercised its discretion to dismiss the writ of mandamus

for failure to exhaust administrative remedies. The court also properly dismissed the tort

liability claims against the City based on sovereign immunity. So we affirm.

s/ W. Neal McBrayer

W. NEAL MCBRAYER, JUDGE

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