IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 1, 2023

LAUREL TREE II HOMEOWNERS ASSOCIATION, INC. v. DORA 

WILSON-MOORE

Appeal from the Circuit Court for Shelby County

No. CT-0069-20 Valerie L. Smith, Judge

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No. W2021-01275-COA-R3-CV

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This appeal concerns a suit brought by a homeowner’s association to enforce a property 

restriction contained in its declarations against a resident subject to the declarations. After 

the filing of a motion for judgment on the pleadings by the homeowner’s association, the 

trial court granted it relief and entered an injunction against the homeowner. The 

homeowner appealed. We conclude that the trial court properly granted the homeowner’s 

association’s motion for judgment on the pleadings and affirm the trial court’s judgment.

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

Remanded.

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which ANDY D. BENNETT 

and KRISTI M. DAVIS, JJ., joined.

Dora Wilson-Moore, Memphis, Tennessee, Pro se.

Brandon F. McNary, Peter D. Baskind, and J. Malachi Baggett, Memphis, Tennessee, for 

the appellee, Laurel Tree II Homeowners Association, Inc.

MEMORANDUM OPINION1

BACKGROUND AND PROCEDURAL HISTORY

 

1 Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse 

or modify the actions of the trial court by memorandum opinion when a formal opinion 

would have no precedential value. When a case is decided by memorandum opinion it 

shall be designated “MEMORANDUM OPINION”, shall not be published, and shall not

be cited or relied on for any reason in any unrelated case.

02/01/2024
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Appellee Laurel Tree II Homeowners Association, Inc. (“the HOA”) sued Appellant 

Dora Wilson-Moore (“Homeowner”) for injunctive relief and damages in the Shelby 

County Circuit Court (“the trial court”). The HOA’s complaint asserted that Homeowner

is the record owner of the property legally known as “Lot 14, Laurel Tree II Planned 

Development, as shown on Plat of record in Plat Book 228, Page 24, in the Register’s 

Office for Shelby County, Tennessee[,]” recognized municipally as 5042 Laurel Springs

Drive, Memphis, Tennessee 38125 (“the Property”). Furthermore, the complaint asserted 

that Homeowner took title to the Property through a warranty deed recorded as instrument 

number 11125789 (“the Deed”). 

The HOA attached a copy of the Deed to its complaint, as well as a copy of the 

“Declaration of Covenants, Conditions and Restrictions for Laurel Tree II P.D.” (“the 

Declaration”), which had been recorded in the Register’s Office for Shelby County as 

instrument number 06170585.

2

 According to the complaint, the Property is encumbered 

by the Declaration, and of note, the Deed underlying Homeowner’s title to the Property

specifically reflects the Declaration as an encumbrance. 

As relevant to the present dispute, the HOA’s complaint alleged that Homeowner 

had been leaving her garbage can in an area visible by the public, in violation of the 

Declaration. In support of its position, the complaint outlined that Article IX, Section 2(f) 

of the Declaration specifically provides that

[a]ll mobile equipment, garbage cans, service yards, woodpiles or storage 

piles shall be kept screened by adequate planting or fencing so as to conceal 

them from view of the streets and adjacent Lot Owners. All rubbish, trash, or 

garbage shall be regularly removed from the premises and shall not be 

allowed to accumulate thereon. 

The HOA’s complaint further alleged that Homeowner continued to violate Article 

IX, Section 2(f), despite a number of warnings sent to her via letter. Additionally, the 

complaint cited to Article XIII, Section 3 of the Declaration, which empowers the HOA to 

enforce restrictions contained within the Declaration against any person violating said 

restrictions “by any proceeding at law or in equity . . . to restrain violations, to require 

specific performance and/or to recover damages.”

In light of the alleged violation, the complaint requested that the trial court grant a 

permanent injunction against Homeowner to bring the Property into compliance and, 

further, that the court enter an order permitting the HOA to enter the Property and take 

necessary steps to bring it into compliance with the Declaration. The complaint also

requested an award of attorney’s fees from Homeowner for the expenses of this 

enforcement action, pursuant to the Declaration.

 

2 The complaint noted that the Declaration had been re-recorded as instrument number 07039993.
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Homeowner filed an answer to the complaint, in which she admitted to owning the 

Property pursuant to the Deed of record. She also acknowledged that Article IX, Section 

2(f) of the Declaration prohibits the storage of a resident’s garbage cans within view of the 

public. Moreover, she admitted to storing her garbage within view of the public and 

adjacent lot owners. As part of her answer, however, Homeowner raised selective 

enforcement of this provision of the Declaration as an affirmative defense.

After receiving her answer, the HOA filed a motion for a judgment on the pleadings, 

which the trial court later granted. In granting the HOA relief, the trial court’s order 

specifically outlined the following pertinent findings: (1) Homeowner is the record owner 

of the Property in the Laurel Tree II Subdivision; (2) All property in the subdivision is 

subject to the Declaration; (3) the Property is encumbered by the Declaration; (4) Article 

IX, Section 2(f) of the Declaration prohibits the storage of garbage cans within view of the 

street and adjacent lot owners; and (5) Homeowner “is storing her garbage can in a location 

visible by the public and adjacent lot owners.” 

As a result of these findings, the trial court issued a permanent injunction enjoining 

Homeowner from “storing all mobile equipment, garbage cans, service yards, woodpiles, 

storage piles, rubbish, trash, or garbage in a location visible by the public streets and 

adjacent lot owners,” and at the conclusion of the order, the court set a future hearing date 

for the HOA to present evidence of its attorney’s fees. Additionally, the trial court’s order 

provided that the HOA would be permitted to enter the Property to bring it into compliance 

if Homeowner failed to comply within thirty days after the entry of a final order.

In a subsequently entered “Order of Final Judgment,” the trial court awarded the 

HOA its attorney’s fees. Although Homeowner thereafter filed a motion to alter or amend

the judgment, the trial court denied the motion. This appeal followed.

ISSUE PRESENTED

The restated issue presented by Homeowner for our review on appeal is whether the 

trial court erred in granting the HOA’s motion for judgment on the pleadings.

STANDARD OF REVIEW

We review an appeal of a judgment on the pleadings de novo without a presumption 

of correctness. Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003). “[A] motion 

for judgment on the pleading made by the plaintiff challenges the legal sufficiency of the 

defenses pled by the defendant.” City of Morristown v. Ball, No. E2020-01567-COA-R3-

CV, 2021 WL 4449237 at *4 (Tenn. Ct. App. Sept. 29, 2021) (quoting Brewer v. Piggee, 

No. W2006-01788-COA-R3-CV, 2007 WL 1946632, at *6 (Tenn. Ct. App. July 3, 2007)). 

We must construe the factual allegations in favor of the non-moving party. Young, 130 

S.W.3d at 63. “Conclusions of law are not admitted nor should judgment on the pleadings 
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be granted unless the moving party is clearly entitled to judgment.” McClenahan v. Cooley, 

806 S.W.2d 767, 769 (Tenn. 1991).

DISCUSSION

In connection with this appeal, Homeowner has challenged the trial court’s decision 

to grant judgment on the pleadings in favor of the HOA. For the reasons discussed below, 

we discern no error in the trial court’s judgment in favor of the HOA.

Homeowner first argues that the trial court erred when it granted the HOA’s motion 

for judgment on the pleadings because, according to her, the Property is not encumbered 

by the Declaration. As to this concern, however, we observe that Homeowner specifically 

acknowledged in her answer that she was the record owner of the Property pursuant to the 

Deed. Moreover, the Deed itself specifically reflects the Declaration as an encumbrance.3 

In view of this fact, and in view of the fact that Homeowner admitted to leaving her garbage 

can within the view of the public and adjacent lot owners, while also acceding that such an 

action is a violation of the Declaration, we conclude it is clear that Homeowner has fully 

admitted to facts supporting the HOA’s entitlement to relief.

However, Homeowner has also argued that selective enforcement should bar the 

HOA’s attempt to enforce the Declaration. We have previously characterized selective 

enforcement as an “issue of unequal and arbitrary enforcement of a restriction.” Ass'n of 

Owners of Regency Park Condominiums v. Thomasson, 878 S.W.2d 560, 566 (Tenn. Ct. 

App. 1994) (citing Chattel Shipping & Inv., Inc. v. Brickell Place Condo. Ass'n, Inc., 481 

So.2d 29, 30 (Fla. Dist. Ct. App. 1985)). Regarding this concern of Homeowner, however, 

we note that Article XIII, Section 5 of the Declaration contains a non-waiver provision. As 

for the effect of this provision, we have previously addressed an analogous issue which can 

provide guidance in this matter.

In Royalton Woods Homeowner Association, Inc. v. Soholt, this Court reviewed 

whether a trial court erred in failing to consider the affirmative defense of laches raised by 

homeowners in a claim brought by a homeowner’s association to enforce certain 

restrictions in its Declaration of Covenants, Conditions and Restrictions (“the Royalton

 

3 Although Homeowner has denied that the copies of the Deed and Declaration attached to the 

complaint were true and correct copies of those documents, we conclude that her denial in this regard is of 

no ultimate consequence to the HOA’s demonstrated right to relief. She has admitted that she is the record 

owner of the real property at issue, and we note that the Deed to the real property at issue, as well as the 

Declaration which the Deed specifically reflects as an encumbrance, are matters of public record subject to 

judicial notice. See Tenn. R. Evid. 201 (permitting judicial notice of facts “capable of accurate and ready 

determination by resort to sources whose accuracy cannot reasonably be questioned”). A court’s

consideration of the recorded public documents does not in any way convert the motion into one for 

summary judgment. See Haynes v. Bass, No. W2015-01192-COA-R3-CV, 2016 WL 3351365, at *4-5

(Tenn. Ct. App. June 9, 2016). 
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Declaration”). Royalton Woods Homeowner Ass’n, Inc. v. Soholt, No. M2018-00596-

COA-R3-CV, 2019 WL 366525, at *12-13 (Tenn. Ct. App. Jan. 29, 2019). Laches is 

another affirmative defense in equity, alongside selective enforcement, that prevents the 

enforcement of claim by a party, if the party seeking enforcement has waited so long that 

the opposing party has been prejudiced. Id. (citing Grand Valley Lakes Prop. Owners Ass'n, 

Inc. v. Burrow, 376 S.W.3d 66, 83-84 (Tenn. Ct. App. 2011)). In concluding the trial court 

did not err in failing to apply the doctrine of laches, we highlighted a provision of the 

Royalton Declaration which stated in pertinent part as follows:

Failure by the Declarant, community association or owner to enforce any 

restriction herein contained shall in no event be deemed a waiver of the rights 

to do so thereafter nor constitute an acquiescence in or an estoppel to any, 

actual or future, breaches or violations of these covenants and restrictions.

Id. We concluded that this passage “prevent[s] the application of laches as a basis for 

denying” the homeowner’s association right to collect assessments. Id.

Turning back to the instant case, we highlight the language contained in the nonwaiver provision set out in Article XIII, Section 5, which states as follows: 

No restriction, condition, obligation, or provision of the Declaration shall be 

deemed to have been abrogated or waived by reason of failure or failures to 

enforce the same. 

In assessing the plain meaning of the language, we conclude the provision secures the 

HOA’s right to enforce a claim even if it fails to “enforce the same” upon other owners of 

property subject to the Declaration. As in Royalton, the Declaration’s non-waiver provision 

in this case prevents the application of selective enforcement as a basis for denying the 

HOA’s right to enforce the Declaration. Therefore, we conclude that the trial court did not 

err in failing to apply selective enforcement as a basis for denying the HOA’s motion for 

judgment on the pleadings. Having found no error with the trial court’s final judgment, we 

affirm it on appeal. 

 As a final matter, we observe that the HOA has requested attorney’s fees on appeal 

at the close of the argument section of its brief. However, this request is not properly before 

the Court, because it was not raised in the statement of issues presented for review. Mathes 

v. N.J. Ford & Sons Funeral Home, Inc., 680 S.W.3d 208, 213-14 (Tenn. Ct. App. 2023)

(“As for whether [appellant] has waived the issues regarding the various claims above, she 

provided arguments for each but did not present them as issues in her statement of the 

issues for appellate review. . . . As such, we conclude [appellant] has waived any review 

of [those] issues.”); Gibson v. Bikas, 556 S.W.3d 796, 810 (Tenn. Ct. App. 2018) (treating 

the issue of attorney’s fees as waived because it was not presented in the statement of 

issues). In light of this omission, we conclude the issue of appellate attorney’s fees has 
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been waived.

CONCLUSION

Because we conclude the trial court did not err in granting the HOA’s motion for 

judgment on the pleadings, the judgment is affirmed. 

 s/ Arnold B. Goldin 

 ARNOLD B. GOLDIN, JUDGE