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

> Court of Appeals of Tennessee · April 24, 2025

URL: https://www.frixlaw.com/law-library/cases/10851036

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** April 24, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Kenny Armstrong
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10851036

## How later opinions describe it (automated extraction)

- stating that failure to join necessary parties “could result in inconsistent rulings and unnecessary duplicative litigation”

## Opinion text

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.

-7-
***

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
-8-
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
-9-
[(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:

- 13 -
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
- 16 -
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.
- 17 -
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

- 18 -

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10851036. Public record. Not legal advice.