Marilee Z. Hurley, Trustee of the Marilee Z. Hurley Revocable Trust Dated September 26, 2008 v. Green Shadows Homeowners Association, Inc.

04/24/2025

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 8, 2025 Session

MARILEE Z. HURLEY, TRUSTEE OF THE MARILEE Z. HURLEY

REVOCABLE TRUST DATED SEPTEMBER 26, 2008 v. GREEN

SHADOWS HOMEOWNERS ASSOCIATION, INC.

Appeal from the Chancery Court for Shelby County

No. CH-22-0933 JoeDae L. Jenkins, Chancellor

__________________________________

No. W2024-00556-COA-R3-CV

___________________________________

This case involves a dispute between a property owner and her homeowners’ association.

Appellant’s property is governed by the homeowner’s association’s covenants, conditions,

and restrictions. There are two improvements to appellant’s property, a main house and a

carriage house, both of which were originally roofed with vintage concrete tiles. Appellant

replaced the roof on the carriage house with asphalt shingles, but did not replace the roof

on the main house. Rather, appellant had the main house roof cleaned, which resulted in a

lighter appearance. The homeowners’ association demanded that appellant replace the

main house roof with shingles to match the carriage house. Appellant refused and filed an

action for declaratory judgment and injunction. The association filed a counter-complaint

alleging that appellant was in breach of certain provisions of the covenants, conditions, and

restrictions. The parties filed cross-motions for summary judgment. The trial court

dismissed appellant’s declaratory judgment action on its finding that it lacked subject-

matter jurisdiction because appellant failed to join all necessary parties. The trial court

granted the homeowners’ association’s motion for summary judgment on its counter-

complaint and awarded attorney’s fees. Because the trial court’s order does not adequately

explain its reasons for dismissing appellant’s declaratory judgment action, we cannot

conduct a meaningful review of that holding, and we vacate the trial court’s dismissal of

appellant’s complaint. There are disputes of material fact that preclude the grant of

summary judgment. Accordingly, we reverse the trial court’s grant of summary judgment

and its award of attorney’s fees to the homeowner’s association.

Tenn. R. App. 3 Appeal as of Right; Judgment of the Chancery Court

Vacated in Part; Reversed in Part; and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,

P.J., W.S., and JEFFREY USMAN, J., joined.

Webb A. Brewer, Memphis, Tennessee, for the appellant, Marilee Z. Hurley.

Peter D. Baskind, Memphis, Tennessee, for the appellee, Green Shadows Homeowners

Association, Inc.

OPINION

I. Background

In September 1989, Appellant Marilee Hurley and her late husband purchased

property at 6562 Green Shadows Lane in Memphis (the “Property”). The Property is of

some historic note. According to Mrs. Hurley’s complaint:

7. The Property is commonly known as the Pauline Cheek Barton House.

8. The Main House was built in 1938 by prominent Memphis architect Walk

Claridge Jones, Sr. and is of the Colonial Revival architectural style.

9. It remained in the Barton family for more than fifty years until it was sold

to Boyle Investments in 1989 . . . .

10. Attesting to the historical significance of the Property, it was nominated

for placement on the National Register of Historic Places by the Tennessee

Historical Commission.

11. On September 7, 1995, six years after the Hurleys’ acquisition of the

Property, it was placed on the National Register of Historic Places by the

National Park Service of the United States Department of the Interior.

In 1989, Boyle Investments established the Green Shadows Development, and the Hurley

Property was initially the only home in the development. It is undisputed that the Property

is governed by the Appellee Green Shadows Homeowners Association, Inc. (the “HOA”)

and specifically by the “Green Shadows Declaration of Covenants, Conditions, and

Restrictions” (the “CCR”).

In 2008, the Hurleys transferred their interests in the Property to revocable trusts

established in their respective names. The Property has two improvements — a main

residence (the “Main House”), and a smaller residential outbuilding behind the main

residence (the “Carriage House”). The Property is unique to the neighborhood. As relevant

here, both the Main House and the Carriage House were originally roofed with vintage

concrete tiles. Other than the two buildings on Mrs. Hurley’s Property, no other buildings

in the development have this type of roof.

In 2018, Mrs. Hurley engaged a contractor, Bill Day, to evaluate the Property for

needed repairs due primarily to drainage issues and water damage. Mr. Day concluded that

the concrete tile roofs on both the Main House and the Carriage House needed to be

replaced. According to the HOA’s statement of undisputed facts in support of its motion

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for summary judgment, in October 2018, Mr. Day sent an email to Richard Fisher, a

member of the Green Shadows Architecture Committee (“ARC”). Mr. Day attached a “red-

lined” draft of the renovation plans to this email, see discussion infra.

Because Mrs. Hurley was not satisfied that the drainage issues causing the Carriage

House damage had been resolved, she claims that she abandoned the plans drawn by Mr.

Day and engaged a roofing company to inspect the Carriage House and Main House.

Exhibit F to Mrs. Hurley’s complaint is a photograph of an “Inspection Report,” which is

signed by Mr. Bryan Bridges of Excellent Roofing. In the report, dated November 5, 2019,

Mr. Bridges explains that he inspected the Main House roof and found that

[t]he existing roof system [is the] original concrete tile roof system. There

are no active leaks on the sloped tile roof. The tiles are all intact and appear

to be in great condition. “It is not unreasonable to expect 100 years from a

properly maintained concrete roof.” State Roof Central. All copper flashing

is in great condition and is flashed properly.

In closing, the existing roof system should not be replaced, and has more

years of serviceable life.

According to her complaint, in 2020, Mrs. Hurley hired another contractor “to create

a scaled back plan, focused exclusively on resolving the stormwater drainage problem and

salvaging and restoring the Carriage House.” The complaint goes on to state that, on

November 18, 2020, Mrs. Hurley “submitted her scaled back plan in an email to Rita Allen

of the Green Shadows [HOA],” stating, in relevant part, that:

We are trying to get a pick for the shingles we will be using to replicate what

the shingles look like now. As soon as we have the shingles picked out I will

send you the spec. In essence the back house will look the same as it

currently looks.

As discussed below, Mrs. Hurley asserts that the foregoing is in reference to the Carriage

House roof and “there is nothing in the email . . . that proposes that the roof of the Main

House would be replaced . . . .”

Mrs. Hurley proceeded with construction on the Carriage House, including

installation of a new asphalt shingle roof. Concerning the roof on the Main House, in his

affidavit, Mr. Fisher states that “[i]n the Fall of 2020, [Mrs.] Hurley sought permission to

clean a small sample portion of the roof on the Main House.” Mr. Fisher does not elaborate

on how Mrs. Hurley “sought permission” from the HOA, and there is no correspondence

in the record addressing any request for roof cleaning. Nonetheless, it is undisputed that

Mrs. Hurley hired a roof cleaning company to clean the roof of the Main House, which was

covered in an accumulation of sediment and moss. Although the parties dispute whether

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Mrs. Hurley had permission to clean only a “sample portion of the roof,” it is undisputed

that the entire Main House roof was cleaned. The cleaning resulted in the Main House roof

appearing lighter in color.

On October 13, 2021, Mrs. Hurley responded to some maintenance concerns raised

by the HOA with an email to Ms. Allen. Therein, Mrs. Hurley stated that, “The roof [of the

Main House] has been cleaned and will remain as is.” By letter of October 26, 2021, the

HOA informed Mrs. Hurley that she had breached certain sections of the CCR, and asserted

that:

The [Main House] roof must be replaced with new shingles identical in make

and appearance to those currently existing on the Carriage House. Any

proposed modifications to the design or placement o[f] roof pipes, vents,

gables or the like require submission to the ARC for approval. . . .

Mrs. Hurley did not replace the Main House roof. After the HOA sent several more

demands and levied fines against Mrs. Hurley, on January 20, 2022, she responded in

writing to Joyce Spiecha, Senior HOA Manager, stating:

You have requested that the roof of the Main House be replaced. I

respectfully decline to replace the roof of the Main House. My home has had

the same concrete tile, permanent roof since before there was a Green

Shadows Neighborhood Association, and it therefore cannot logically be

incompatible “with the appearances and conditions of roofs of other houses

in the Neighborhood.” The roof contributes greatly to the historical character

of my home and is part of why my home is on the National Historic Register

(since 1995). Further, my roof has been inspected by a qualified roofing

contractor and was found to be in water tight condition. I had the right to

clean my roof without asking for any permission. Neither the Board nor the

ARC has the authority to demand that I replace a functioning roof in order

for it to “match” other roofs in the neighborhood or to “match’ the Carriage

House. . . .

In response to her correspondence, the HOA’s attorney sent a letter to Mrs. Hurley. The

letter, which is dated February 18, 2022, states, in relevant part:

We have been asked by the Association to contact you regarding an ongoing

issue involving the Property, namely, your failure to properly maintain the

roof of the main house. Failing to maintain the exterior of the Property is a

violation of [] certain [sections of the] Green Shadows [CCR]. . . .

Paragraph 16 of the [CCR] provides in pertinent part that:

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Whether or not specifically stated in any conveyance of a lot,

the owner or occupant of each and every lot, by acceptance of

title or by taking possession, covenants and agrees that no

improvement or change, including, but not limited to, the

construction, alteration, or erection of any structure, terrain

change, fence, driveway, walkway, landscape screening,

mailbox, outdoor lighting fixture, any sanitary and/or storm

sewer system, underground wiring, swimming pool, pool deck,

or the removal of any existing tree or trees which are six inches

(two inches for cedars) in caliper or larger . . . shall be

commenced, erected, placed or permitted on any lot until the

plans, specifications and specific location (including elevation)

of said improvement or change has been approved in writing,

or the requirement for such approval has been waived in

writing by the [ARC].

The [CCR] requires that you seek and receive approval (in writing) prior to

making any alterations to the improvements on the Property. This restrictive

covenant applies to the [M]ain [H]ouse and the [Carriage] [H]ouse on the

Property.

The Association asked you on multiple occasions over the last few

years to perform maintenance on the Property, including repairs to the roof

of the [M]ain [H]ouse and the [Carriage] [H]ouse. In 2020, you finally

agreed to make the necessary repairs and perform the necessary maintenance

at the property. You communicated your intentions to the Board of Directors

for the Association and you were informed that these exterior alterations

needed to be submitted in writing for the Association to review.

Unfortunately, you never submitted any proposed changes in writing.

However, you did instruct your contractor to communicate with the Board of

Directors regarding the desired changes. Your contractor spoke with Rita

Allen on several occasions but never submitted any plans in writing.

In November 2020, your contractor informed the Board of Directors

of the nature of the services being provided, including the color and style of

the shingles that were going to be used on the [M]ain [H]ouse and the

[Carriage] [H]ouse. Your contractor specifically stated that the [Carriage]

[H]ouse would be completed first and then the same shingles were to be used

on the [Main House] in order to ensure a harmonious look between the two

properties. The Board relied on this representation to allow commencement

on the [Carriage] [H]ouse. An estimate/invoice, which was signed by you

and your contractor, was provided to Rita Allen via email outlining the nature

of the work to be performed. The Board of Directors approved the proposed

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alteration on the condition that the shingles on the [Main House] and the

[Carriage] [H]ouse matched. Unfortunately, you only had the [Carriage]

[H]ouse roof replaced, despite the conditional approval and the requirement

to replace both. Your failure to replace the roof of the [Main House] is a

violation of the [CCR].

Furthermore, you recently had the roof of the [Main House] pressure

washed. The pressure washing substantially changed the appearance of the

roof, again in violation of the CCR. Paragraph 18 of the [CCR] provides in

relevant part that:

Each owner shall be responsible for the maintenance and

painting of all improvements to the land within his lot . . . .

In the event the owner of any lot shall fail to maintain the

premises and the improvements situated thereon in a manner

reasonably satisfactory to the [ARC], and in keeping with other

lots, the [Arc] shall have the right, through its agent or

employees, to enter upon said parcel and to repair, maintain,

and restore the lot and building improvements and any other

improvements erected thereon. The cost of said maintenance

shall be a binding obligation of the owner as well as a lien on

the lot in question. . . . In addition to the costs as set forth

herein, the owner shall be responsible for all court costs,

reasonable attorneys’ fees, and interest from the date of any

expenditure at the maximum legal rate of interest.

The current appearance of the roof is not compatible with the standards for

Green Shadows. The Association has provided you notice of this issue on

multiple occasions. Unfortunately, you have failed to resolve this violation.

In summary, the current roof on the primary residence must be

replaced for multiple reasons.

The letter states that the “Board/ARC is willing to meet with you on March 3 . . . .” Mrs.

Hurley claims that when she informed the HOA that her attorney would be attending the

meeting, but she would not, the HOA abruptly cancelled it.

On July 1, 2022, Mrs. Hurley filed a petition for declaratory and injunctive relief in

the Chancery Court of Shelby County (“trial court”). In her petition, which was brought

under the Tennessee Declaratory Judgments Act, Tennessee Code Annotated sections 29-

14-101, et seq. (the “DJA”), Mrs. Hurley asked, inter alia, that

the Court issue a Declaratory Judgment that the [HOA], its employees,

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agents, successors and/or assigns have no right to force [Mrs. Hurley] or her

agents, successors and assigns to replace the original concrete tile roof

pursuant to the [CCR] or take any other punitive action against Mrs. Hurley,

her agents, successors and assigns, in connection with the circumstances and

events set forth in this Petition.

On August 2, 2022, the HOA filed an answer to the petition, wherein it asserted that

Mrs. Hurley was not entitled to the relief she sought. The HOA further asserted that Mrs.

Hurley’s declaratory judgment action should be dismissed for failure to join all necessary

parties pursuant to section 29-14-107 of the DJA, discussed infra. Concurrent with its

answer, the HOA filed a counter-complaint for injunctive relief and damages. The HOA

reasserted the allegations contain in the February 18, 2022 letter sent to Mrs. Hurley by the

HOA’s attorney, supra, and claimed that she was in breach of the CCR for failure to replace

the roof on the Main House. The HOA asked the trial court for both an order requiring Mrs.

Hurley to perform her contractual obligations by “bringing her property into compliance,”

and an order allowing it to access Mrs. Hurley’s property and to itself secure such

“compliance” at her expense. The HOA also asked the trial court to enter a monetary

judgment against Mrs. Hurley for fines it had purported to impose, along with its attorney’s

fees pursuant to Paragraph 27 of the CCR, which states in pertinent part:

[I]n connection with enforcement of these Covenants . . . an action may be

maintained at law or equity . . . to mandate compliance with the Covenants .

. . and to recover damages including plaintiff’s reasonable attorney’s fees for

failure to pay such expenses or for violation of any of these Covenants . . . .

On August 19, 2022, the HOA moved for summary judgment, arguing that it was

entitled to summary judgment on its breach of contract claims because Mrs. Hurley had

violated the CCR when she cleaned her roof, thereby changing its color, without the HOA’s

approval. Specifically, the motion states:

4. Once work on the Carriage House was completed, the roof of the Main

House was power washed or otherwise deep cleaned, radically changing the

color of the roof. What had been a darker-colored roof has become very light,

and uneven. The color change is unacceptable to the Association. The change

was made without the written permission of the Association. That is a

violation of the [CCR].

***

6. Ms. Hurley is not entitled to the Declaratory relief she requests. Ms.

Hurley may have failed to include necessary parties to the Declaratory action,

which might deprive the Court of subject-matter jurisdiction.

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***

8. The Association’s Counter-complaint seeks to require Ms. Hurley to bring

her Property into compliance with the Declaration by changing the Main

House roof into a color approved by the Association. There is no dispute

that the Declaration requires permission in writing before a color change is

made and that Ms. Hurley failed to obtain such permission.

On October 9, 2023, Mrs. Hurley filed a cross-motion for summary judgment,

asking the trial court to find that she had not breached the CCR because it did not require

her to obtain the HOA’s approval before cleaning her roof. She further argued that the

HOA lacked authority to compel her to replace the roof or to impose fines, and that the

HOA’s unreasonable attempts to do so violated the covenant of good faith and fair dealing.

She maintained that the trial court had subject-matter jurisdiction over her declaratory

judgment action because the HOA had not identified any absent party with an actual stake

in the relief she was requesting. Finally, she asked the trial court to deny the HOA’s request

for attorney’s fees.

On January 12, 2024, the HOA filed a response in opposition to Mrs. Hurley’s

motion for summary judgment. Therein, the HOA abandoned its previous suggestion that

the Tennessee Historical Commission, the National Park Service, and an unnamed

neighbor were necessary parties. Instead, the HOA asserted that, under the holding in

Brock v. Eick, No. E2023-00021-COA-R3-CV, 2023 WL 7102336 (Tenn. Ct. App. Oct.

27, 2023), Mrs. Hurley would have to join every lot owner within the HOA before the trial

court could exercise subject-matter jurisdiction over her petition.

On January 25, 2024, the trial court heard the competing summary-judgment

motions. By order of February 9, 2024, the trial court dismissed Mrs. Hurley’s complaint

for declaratory judgment for lack of subject-matter jurisdiction, denied her motion for

summary judgment, and granted the HOA’s motion for summary judgment on its counter-

complaint. The trial court entered its final judgment on March 15, 2024, wherein it

awarded the HOA $40,261.50 in attorney’s fees and costs under the CCR. Mrs. Hurley

filed a timely notice of appeal, and the trial court stayed proceedings pending the outcome

of this appeal.

II. Issues

Appellant raises the following issues as stated in her brief:

1. Whether the trial court erred by concluding that Petitioner’s decision to

clean the roof of her historic home violated a contractual provision requiring

HOA approval of proposed architectural improvements and changes.

2. Whether the trial court erred by concluding that there were no genuine

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issues of material fact that the ARC’s approval of the Carriage House plan

required replacing the Main House roof.

3. Whether the trial court erred by ordering Petitioner to replace her roof

without conducting any of the fact-specific equitable analysis long required

by Tennessee law prior to entry of such an order.

4. Whether the trial court erred in awarding equitable relief despite the fact

that the HOA’s violation of the covenant of good faith and fair dealing left it

with unclean hands.

5. Whether the trial court abused its discretion when it dismissed Petitioner’s

request for declaratory relief for failure to join all property owners with

potential interests in the Green Shadows Declaration of Covenants,

Conditions, and Restrictions without considering whether any such potential

interest was justiciable.

The HOA seeks appellate attorney’s fees and costs.

III. Standard of Review

A trial court’s decision to grant a motion for summary judgment presents a question

of law. Therefore, our review is de novo with no presumption of correctness afforded to

the trial court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). This

Court must make a fresh determination that all requirements of Tennessee Rule of Civil

Procedure 56 have been satisfied. Green v. Green, 293 S.W.3d 493, 514 (Tenn. 2009).

When a motion for summary judgment is made, the moving party has the burden of

showing that “there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The Tennessee Supreme

Court has explained that when the party moving for summary judgment does not bear the

burden of proof at trial, “the moving party may satisfy its burden of production either (1)

by affirmatively negating an essential element of the nonmoving party’s claim or (2) by

demonstrating that the nonmoving party’s evidence at the summary judgment stage is

insufficient to establish the nonmoving party’s claim or defense.” Rye v. Women’s Care

Center of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015) (italics omitted).

Furthermore,

“When a motion for summary judgment is made [and] . . . supported as

provided in [Tennessee Rule 56],” to survive summary judgment, the

nonmoving party “may not rest upon the mere allegations or denials of [its]

pleading,” but must respond, and by affidavits or one of the other means

provided in Tennessee Rule 56, “set forth specific facts” at the summary

judgment stage “showing that there is a genuine issue for trial.” Tenn. R. Civ.

P. 56.06. The nonmoving party “must do more than simply show that there

is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co., [Ltd. v. Zenith Radio Corp.], 475 U.S. [574,] 586, 106 S. Ct. 1348

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[(1986)]. The nonmoving party must demonstrate the existence of specific

facts in the record which could lead a rational trier of fact to find in favor of

the nonmoving party.

Rye, 477 S.W.3d at 265.

IV. Declaratory Judgment

The trial court granted the HOA’s motion for summary judgment, in part, on its

determination that Mrs. Hurley could not proceed under the DJA. Specifically, the order

states:

Ms. Hurley seeks declaratory relief. Whenever declaratory relief is

brought before a court, that court must first consider whether it has subject-

matter jurisdiction. The Association has drawn the Court’s attention to a

2023 case from the Tennessee Court of Appeals, Brock v. Eick, No. E2023-

00021-COA-R3-CV, 2023 WL 7102336 (Tenn. Ct. App. June 21, 2023).

After reviewing the case, the Court is inclined to agree with the Association

that the Court lacks subject-matter jurisdiction to grant declaratory relief for

failure to join all property owners within Green Shadows. ln accordance with

Eick, the Court concludes that all property owners with interest in the

Declaration must be joined to avoid inconsistent results in the future.

The Petition for Declaratory and injunction relief is hereby

DISMISSED for lack of subject-matter jurisdiction.

Section 29-14-107 of the DJA states that, “[w]hen declaratory relief is sought, all

persons shall be made parties who have or claim any interest which would be affected by

the declaration, and no declaration shall prejudice the rights of persons not parties to the

proceedings.” The Tennessee Supreme Court has explained that:

Parties are determined to be necessary when their absence from the action

could cause recurring litigation on the same subject because the declaratory

judgment, if rendered, “would not terminate the uncertainty or controversy

giving rise to the proceedings.” Id. (citing Commercial Cas. [Ins. Co. v. Tri-

State Transit Co. of La.], 146 S.W.2d [135,] at 136 [(Tenn. 1941)]; see also

Huntsville Util. Dist. of Scott Cnty., Tenn. v. General Trust Co., 839 S.W.2d

397, 404 (1992) (stating that failure to join necessary parties “could result in

inconsistent rulings and unnecessary duplicative litigation”); Edmondson v.

Henderson, 246 N.C. 634, 99 S.E.2d 869, 871 (1957) (quoting Equitable

Life Assurance Soc'y of U.S. v. Basnight, 234 N.C. 347, 67 S.E.2d 390, 395

(1951)) (“‘Necessary parties are those persons who have rights which must

be ascertained and settled before the rights of the parties to the suit can be

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determined.’”). . . .

Whether a party must be joined “‘in a declaratory judgment action depends

on the type of case and the issues involved.’” Adler v. Double Eagle Props.

Holdings, LLC, No. W2010-01412-COA-R3-CV, 2011 WL 862948, at *3

(Tenn. Ct. App. Mar. 14, 2011) (quoting Byrn v. Metro. Bd. of Pub. Educ.,

No. 01-A-019003CV00124, 1991 WL 7806, at *5 (Tenn. Ct. App. Jan. 30,

1991)). Declaratory relief will be granted “only to parties who have a real

interest in the litigation and when the case involves present rights that have

accrued under presently existing facts.” Dobbs v. Guenther, 846 S.W.2d 270,

275 (Tenn. Ct. App. 1992) (citations omitted).

Parties who might be remotely affected by the declaratory judgment need not

be joined. Timmins [v. Lindsey], 310 S.W.3d [834,] at 839 [(Tenn. Ct. App.

2009)] (citing Shelby Cnty. Bd. of Comm’rs v. Shelby Cnty. Quarterly Ct.,

216 Tenn. 470, 392 S.W.2d 935, 940 (1965)). . . .

Tennessee Farmers Mut. Ins. Co. v. DeBruce, 586 S.W.3d 901, 906-907 (Tenn. 2019). A

trial court’s determination of which parties are necessary to a declaratory judgment action

is discretionary and can be reversed only for abuse of that discretion. Timmins v. Lindsey,

310 S.W.3d 834, 839 (Tenn. Ct. App. 2009). An abuse of discretion is found when the trial

court applies an incorrect legal standard, reaches an illogical conclusion, bases its decision

on a clearly erroneous assessment of the evidence, or employs reasoning that caused an

injustice to the complaining party. Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn.

2012) (citing State v. Jordan, 325 S.W.3d 1, 39 (Tenn. 2010)).

As set out in its order, supra, in denying the declaratory judgment action, the trial

court relied on this Court’s opinion in Brock. In Brock, a declaratory judgment action was

brought by one property owner against another, both of whom lived in the Red Cloud

development. All properties within the development were subject to certain protective

covenants and restrictions. Brock, 2023 WL 7102336, at *1. However, unlike the instant

case, in Brock, there was no homeowners’ association. The dispute in Brock arose when

the defendant Mr. Eich, “a real property owner in [the subdivision], began advertising and

renting his home in [the subdivision] as a vacation rental to visitors on websites such as

VRBO and Airbnb.” Id. Mr. Brock, another property owner, filed a complaint for

declaratory judgment against only Mr. Eich, seeking to enjoin him from renting his home.

Mr. Eich moved for dismissal on the ground that Mr. Brock failed to join all necessary

parties as required under the DJA, thus depriving the trial court of subject-matter

jurisdiction. The trial court granted Mr. Eich’s motion on its finding that

the remaining lot owners in the Red Cloud development subject to the

restrictive covenants upon which Mr. Brock couches this lawsuit are

necessary here because their absence from this action could and, indeed, will

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likely cause recurring litigation related to whether short-term rentals

(“STRs”) are a business purpose that violate the restrictive covenants. This

is particularly applicable in this case where Red Cloud has no homeowners’

association to represent the lot owners . . . .

On appeal, this Court “affirm[ed] the trial court’s dismissal of Plaintiff’s declaratory

judgment action for lack of subject-matter jurisdiction due to the absence of necessary

parties.” Id. at *8.

The trial court in Brock made a clear finding concerning how the rights of the absent

parties would be affected by the declaration, i.e., “because their absence from this action

could and, indeed, will likely cause recurring litigation related to whether short-term rentals

(“STRs”) are a business purpose that violate the restrictive covenants.” Here, the trial court

made no such finding. Rather, as set out in context above, it merely recited the applicable

law, i.e., “all property owners with interest in the Declaration must be joined to avoid

inconsistent results in the future.” This is merely a restatement of section 29-14-107 of the

DJA, which requires joinder of all parties “who have or claim any interest which would be

affected by the declaration.” Although the trial court’s order concludes that such parties

would include “all property owners within Green Shadows,” the other property owners’

statuses as necessary parties hinges on whether they have “any interest which would be

affected by the declaration.” Tenn. Code Ann. § 29-14-107(a). Unfortunately, the trial court

made no findings concerning what interests the other owners might have in a declaration

concerning whether Mrs. Hurley’s must replace her roof. Of course, we are cognizant that

a trial court specifically is not required to make findings of fact when ruling on summary

judgment motions. Tenn. R. Civ. P. 52.01 (“Findings of fact and conclusions of law are

unnecessary on decisions of motions under Rule 12 or 56.”). However, as this Court has

explained, although

Rule 52.01 rather than 56.04 [] addresses mandatory factual findings[,] and

[] Rule 52.01 is expressly inapplicable to motions for summary judgment,[]

[u]nder Rule 56.04, [] a trial court in granting or denying a motion for

summary judgment “shall state the legal grounds upon which the court denies

or grants the motion.” The trial court “has a duty to ensure that its rulings are

adequately explained,” Vaughn v. DMC-Memphis, LLC, No. W2019-

00886-COA-R3-CV, 2021 WL 274761, at *11 (Tenn. Ct. App. Jan. 27,

2021), so as to avoid creating a circumstance in which an appellate court is

“left to guess as to why the trial court reached its conclusion.” Calzada v.

State Volunteer Mut. Ins. Co., No. M2020-01697-COA-R3-CV, 2021 WL

5368020, at *8 (Tenn. Ct. App. Nov. 18, 2021).

Etheredge v. Etheredge, No. M2022-00451-COA-R3-CV, 2023 WL 5367681, at *8

(Tenn. Ct. App. Aug. 22, 2023). In the absence of a finding concerning what interests of

the other owners would be affected by a declaration concerning this Property, we are left

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to guess the basis of the trial court’s decision to deny declaratory relief. Deprived of the

opportunity to conduct a meaningful review of this question, we vacate the trial court’s

order dismissing Mrs. Hurley’s declaratory judgment action. In its final order, the trial

court states “that Ms. Hurley's declaratory action and the Association’s counterclaim are

two sides of the same coin. Defense and prosecution of this case are indistinguishable.”

Although, by their cross-complaints, the parties may seek opposite answers to the same

question, i.e. whether the Main House roof must be replaced, as a threshold question on

remand, we instruct the trial court to reconsider whether all Green Shadows homeowners

are necessary parties under section 29-14-107 and to make sufficient findings on the

question. Id.

V. Summary Judgment

In its order granting the HOA’s motion for summary judgment, the trial court held,

in relevant part:

The Court finds that the [CCR] is enforceable. The [CCR] requires written

approval from the Association when a change is made to any property within

Green Shadows. The color of Hurley’s [M]ain [H]ouse roof is now different

from the color of the Carriage House, and the intent of the parties when

written approval was given was to re-roof both the Main House and the

Carriage House. Instead of re-roofing, Ms. Hurley washed the roof and the

[ARC] found that the Property was not, therefore, in compliance. The Court

concludes that the Plaintiff, Ms. Hurley, failed to comply with Paragraph 16

of the [CCR] and is required to bring the Property into compliance with the

[CCR] and rules of the Association.

We conclude that there are disputes of material fact that preclude the grant of

summary judgment. As set out in context above, the trial court granted the HOA’s motion,

in part, on its finding that “the intent of the parties when written approval was given was

to re-roof the Main House and the Carriage House.” This “finding” not only presumes

that the parties’ intent always was to replace both roofs, but it also presumes HOA approval

of such plan. From our review, these “facts” are disputed.

First, the question of whether the parties had a valid agreement (and, if so, what the

agreement required from Mrs. Hurley) is not clear. In his affidavit filed in support of the

HOA’s motion for summary judgment, Mr. Fisher states that “[b]ased upon the edited

document sent by Mr. Day, [Mrs. Hurley’s first architect,] it was understood that the Main

House on Ms. Hurley's Property would have new shingles, matching those on the Carriage

House.” The “edited document” that Mr. Day included in his email is attached as exhibit

A to Mr. Fisher’s affidavit. The document provides, in relevant part:

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The Green Shadows Architectural

Review Committee

c/o Richard L. Fisher

6624 Green Shadows Lane 38119

October 31, 2018

DRAFT 10/16/18

REVSED [sic] DRAFT 10/31/18

Mrs. John Hurley

6562 Green Shadows Lane

Memphis, TN 38119

Re: Renovation Plans for 6562 Green Shadows Lane:

Dear Mimi:

***

3. It is our understanding that the roof shingle for the renovated [Carriage]

House will be re-roofed with the shingle . . . manufactured by GAF Slateline

HD. A completely new roof will be installed on the Main House, with the

same shingle.

***

Subject to the conditions outlined herein, and the referenced

attachments, the plans you submitted are approved, and I have provided two

duplicate originals of this letter. Please sign each letter where indicated, and

initial each attachment. I will be happy to provide you with an original of

this correspondence after I sign both sets. At your request and upon

completion of the work shown on the plans, we will send you a Certificate

of Compliance in recordable form.

I hope this path forward is acceptable to all referenced herein. Thanks

very much for your participation in such an exciting renovation.

The Green Shadows Architectural Review Committee

Richard L. Fisher

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(Strikethrough in original). Concerning this document, Mrs. Hurley’s responses to the

HOA’s statements of undisputed material facts provide:

13. According to Ms. Hurley, in 2018, she submitted a “comprehensive

restoration plan” for the Property. Ms. Hurley claims that it was

“conditionally approved by the Association’s Architectural Committee in

2018, although Mrs. Hurley has no written permission.” (Petition for

Declaratory and Injunctive Relief at ¶ 63).

RESPONSE: Agreed for Purposes of Summary Judgment

The HOA’s responses to Mrs. Hurley’s statement of undisputed material facts filed in

support of her motion for summary judgment states:

33. In 2018, Mrs. Hurley submitted a comprehensive renovation plan to the

Association that was prepared by her then-contractor. This plan included

renovations to the Carriage House; maintenance and repairs to the Main

House; and the addition of a pool and patio to the back yard. (Declaration of

Marilee Z. Hurley ¶ 39).

RESPONSE: It is undisputed that plans were submitted. The balance of the

Statement, however, references a writing. If Ms. Hurley wishes to rely upon

its contents, she would need to produce that writing. Nonetheless, the

Statement is immaterial.

The applicability of the 2018 “comprehensive renovation plan” is disputed.

Although the parties agree that Mr. Day submitted a document, as set out in context above,

the document states that it is a “Draft,” and further appears to be a proposed letter outlining

understandings by and between Mrs. Hurley and the HOA. The salutation reads, “Dear

Mimi.”1 The valediction reads:

The Green Shadows Architectural Review Committee

Richard L. Fisher

So, in the first instance, there is some confusion concerning what the document was meant

to accomplish in terms of the scope of work on the Property, but assuming the document

submitted by Mr. Day constitutes a “comprehensive renovation plan,” there is dispute as

to whether the HOA approved the plan. The document contemplates further action on the

part of the parties before it can be deemed “approved,” i.e. “Subject to the conditions

outlined herein, and the referenced attachments, the plans you submitted are approved, and

I have provided two duplicate originals of this letter. Please sign each letter where

indicated, and initial each attachment.” There is nothing in the record to indicate that either

1

The record indicates that “Mimi” is Mrs. Hurley.

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an HOA representative or Mrs. Hurley signed anything regarding the 2018 plan. Indeed,

in her response, supra, Mrs. Hurley admits that she “has no written permission” to proceed

with the 2018 plan. Finally, as set out in the HOA’s response to Mrs. Hurley’s statement

of material facts:

35. Mrs. Hurley did not move forward with any component of her

comprehensive plan in 2018. (Declaration of Marilee Z, Hurley ¶ 42),

RESPONSE: Undisputed.

From the foregoing, there are disputes concerning: (1) whether the 2018 document sent by

Mr. Day constitutes an architectural plan for renovation of the Property; (2). if so, whether

the HOA approved the plan; and (3) if approved, whether Mrs. Hurley abandoned the plan

in favor of a scaled down plan submitted in 2020.

Turning to Mrs. Hurley’s 2020 submission to the HOA, the parties do not dispute

that, on November 18, 2020, Mrs. Hurley’s contractor “submitted her scaled back plan in

an email to Rita Allen of the Green Shadows [HOA].” Mrs. Hurley asserts that her

contractor was not authorized to submit the 2020 plans to the HOA. In its responses to

Mrs. Hurley’s statement of undisputed material facts, the HOA does not dispute that the

contractor had no actual authority to submit a plan on Mrs. Hurley’s behalf, but it disputes

whether the contractor had apparent authority to submit them, to-wit:

3, Mrs. Hurley never authorized her then-contractor, either verbally or in

writing, to commit to any actions on her behalf without her knowledge and

expressed consent. (Declaration of Marilee Z. Hurley ¶ 50).

RESPONSE: The Association cannot dispute the Statement. What is

relevant, however, are outward manifestations of the Contractor’s authority

to act on Ms. Hurley’s behalf. . . .

The question of the contractor’s apparent authority is unresolved, but even assuming the

2020 plan was properly submitted to the HOA, the parties dispute whether it was approved.

As set out in the HOA’s responses to Mrs. Hurley’s statement of undisputed material facts:

42. This new plan was approved by the HOA. (Declaration of Marilee Z.

Hurley ¶ 49).

RESPONSE: This Statement of Fact is not supported by the Hurley

Declaration. In the referenced Paragraph, Ms. Hurley merely indicates that,

to the best of her knowledge, the plan was approved without conditions. The

Statement, therefore, is disputed as stated.

However, assuming that the 2020 plan was properly submitted and approved, the parties

still dispute whether the 2020 submission was: (1) a new plan requiring replacement of the

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Carriage House roof only; (2) an affirmance of the 2018 plan to replace both the Main

House and Carriage House roofs with the same shingles; or (3) an amendment to the 2018

plan, whereby the initial plan to replace the Main House roof was withdrawn. Mrs. Hurley

asserts that she abandoned the 2018 plan, and the 2020 plan “focused exclusively on

resolving the stormwater drainage problem and salvaging and restoring the Carriage

House.” As noted above, on November 18, 2020, Mrs. Hurley “submitted her scaled back

plan in an email to Rita Allen of the Green Shadows [HOA].” In relevant part, the email

states, “We are trying to get a pick for the shingles we will be using to replicate what the

shingles look like now. As soon as we have the shingles picked out I will send you the

spec. In essence the back house will look the same as it currently looks.” The parties

dispute whether the “shingles” discussed in the email were shingles for the Carriage House

only, or whether they were “shingles” for both the Carriage House and the Main House.

In addition to the foregoing disputes of material fact, there is also dispute concerning

whether Mrs. Hurley was required to seek HOA approval before cleaning the Main House

roof. The HOA’s counter-complaint asserts that, “The color change [of the Main House

roof after cleaning] is unacceptable to the Association. The change was made without the

written permission of the Association. That is a violation of the [CCR].” In its order

granting the HOA’s motion for summary judgment, the trial court states, in part, that Mrs.

Hurley “failed to comply with Paragraph 16 of the [CCR].” As set out in the February 18,

2022 letter from the HOA’s attorney to Mrs. Hurley, supra, Paragraph 16 of the CCR

requires written approval from ARC for any “improvement or change” to the Property, but

Paragraph 18 of the CCR, which the HOA also cites, does not require written approval for

maintenance. Although there is a dispute concerning which paragraph of the CCR applies,

the trial court found that Mrs. Hurley violated Paragraph 16, but she maintains that cleaning

the Main House roof was maintenance (subject to Paragraph 18 of the CCR) and not a

change or improvement requiring approval of the ARC. Although the question of whether

cleaning the roof is maintenance or improvement has not been resolved, the HOA asserts

that, even if the cleaning constitutes maintenance, it resulted in a change to the color of the

roof that is not “acceptable” to the HOA. Indeed, Paragraph 18 of the CCR provides, in

part, that lot owners “shall . . . maintain the premises and the improvements situated thereon

in a manner reasonably satisfactory to the [ARC] or the Committed, and in keeping with

the other lots” (emphases added). The emphasized language creates more dispute. Mrs.

Hurley asserts that her decision to clean the Main House roof was maintenance because it

removed the build-up of moss and sediment that had accumulated over the years and caused

the Main House roof to darken from its original color. As such, she contends that there

was no need for the HOA to approve the cleaning and that she was merely maintaining the

Main House in compliance with Paragraph 18 of the CCA. The HOA contends that, if

cleaning the roof was an improvement, it was not approved under Paragraph 16 of the CCR,

but if it was maintenance, then the change in the roof’s color was not “reasonably

satisfactory to the [ARC]” and was not “in keeping with the other lots.” As discussed in

detail above, the Hurley Property pre-existed the development, and it has always been

anomalous when compared to other homes that have been built in the development.

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Specifically, no other homes have concrete tile roofs. These facts create dispute as to

whether Mrs. Hurley’s home should be held to a standard “in keeping with other lots,”

when her Property has never been “in keeping with other lots.” Furthermore, the question

remains whether the Excellent Roofing opinion that the Main House roof is sound should

bear on the question of whether the original roof of the Main House must be replaced to

achieve cosmetic congruity between it, the Carriage House, and “other lots.” There is also

the question of whether the historical significance of the Main House, and specifically its

place on the National Register of Historic Places by the National Park Service of the United

States Department of the Interior, should bear on the question of removal and replacement

of its original roof. The unique nature of this Property goes to the question of whether the

HOA’s mandate to replace the Main House roof was reasonable. None of these questions

have been answered. In sum, the record is replete with disputes of facts that negate the

trial court’s grant of summary judgment to the HOA, and we reverse its decision.

Having reversed the trial court’s grant of summary judgment to the HOA, we deny

its request for appellate attorney’s fees.

VI. Conclusion

For the foregoing reasons, we vacate the trial court’s court order dismissing Mrs.

Hurley’s complaint for declaratory judgment. We reverse the trial court’s grant of the

HOA’s motion for summary judgment on its counter-complaint. We reverse the trial

court’s March 15, 2024 order awarding the HOA attorney’s fees and costs. The HOA’s

request for appellate attorney’s fees is denied, and the case is remanded for such further

proceedings as may be necessary and are consistent with this opinion. Costs of the appeal

are assessed to the Appellee, Green Shadows Homeowners Association, Inc. Execution for

costs may issue if necessary.

s/ Kenny Armstrong

KENNY ARMSTRONG, JUDGE

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