# FILED
October 18, 19 96 Cecil W. Crowson Ap pellate Cou rt Clerk DON ZSELTVAY, ) ) Plaintiff/Appellant, ) ) Davidson County Circ uit ) No. 96C-13 VS. ) ) Appeal No. ) 01-A-01-9605-CV-00201 METROPO LITAN GOV ERNMENT OF ) NASHVILLE A ND DAVID SON ) COUNTY, TE NNESSEE, ) ) Defendant/Appellee. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE
APPEA L FROM TH

E CIRCUIT C OURT OF DAVIDSON C OUNTY AT DAVIDS ON COUNTY , TENNESSEE
HONORABL E HAMILTO N V. GAYDEN, JR. , JUDGE
DAN R. ALEXANDER, #7065 2016 8th Av enue Sout

h Nashville, Tennessee 37204 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT ERIKA GEETTER, #14617 2016 8th Av enue Sout

h Nashville, Tennessee 37204 ATTORNEY FOR DEFENDANT/APPEL LEE
AFFI RMED AND

REMANDED
HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION
CONCUR: SAMUEL L . LEWIS, JUDGE BEN H. CANTRELL , JUDGE-2-

DON ZSELTVAY, ) ) Plaintiff/Appellant, ) ) Davidson County Circ uit ) No. 96C-13 VS. ) ) Appeal No. ) 01-A-01-9605-CV-00201 METROPO LITAN GOV ERNMENT OF ) NASHVILLE A ND DAVID SON ) COUNTY, TE NNESSEE, ) ) Defendant/Appellee. )



## O P I N I O N

The plaintiff, Don Zseltvay , has appealed from the judgment of the Tria l Court dismissing his suit to enforce the Tennessee Open Meeting s Act as to an action of the Board of Parks a nd Recre ation and

to invalida

te a res olution of

the Metro

politan Cou

ncil bec ause it was not based upon a valid action of the Board.
The issues, as stated by a

ppellant are:
I. Did the trial court err in dismissing the complaint for failure to state a cause of action upon which relief could be granted? II. Did the trial court err in finding that the action of the Parks Board at its January 2, 1996 meeting ratified any technic al mistakes relating to the April 4, 1995 Park Board’s meeting nunc pro tunc? The comp laint alle ges tha t:
1. Plaintiff is a citizen of Nashville. 2. Defendant’s city

is controlled by T.C.A. Title 7. 3. This action is brought under T.C.A. § 8-102 et seq and the ge neral jurisdiction of this Cour

t.-3- 4. On May 16, 1995, the Metropolitan Council adopte d a resolution authorizing the pu rchase of 195 .03 ac res for use of the Boa rd of P arks an d Recr eatio n, and stati ng: Whereas, the purchase has been appr oved by the B oard of Parks and Recreation and the Metropolitan Planning Commission ... 5. The Metropolitan Charter provides that the Board of Parks and Recreation “sha ll recommend to the Council” --- the acquisition by c ondemnation or acceptance of any

gift of lands offered for par k or recre ation pur

poses. 6. The “ordinance and laws” of the c ity require the approval of the Board prior to a Council resolution approving the purchase of such land. 7. The said resolution was passed prior to approval by the Boa

rd. 8. The approval by

the Board was not passed at an “open meeting” and no vote was taken in a ny public meeti ng.
The com plain t prayed fo r enfor cement of T.C .A. § 3 8-44- 106, t he Pub lic Me etings Law and invalidation of the Council resolution.

The defendant moved to dismiss for failure to state a claim for whic h relief can be granted. The me

morandum

supportin g the mot

ion asser ts (1) tha t the comp laint fai ls to state that any action was taken at a meeting which violated the Public Meeting Act. (2) That the complaint fails to state that the Council resolution was passed at a meeting which violated the Public Mee

tings Act, and (3) That the c omplaint do es not est ablish sta nding of plaintiff to invalidate the Council resolution.

Plaintiff ‘s respo nse to the

motion to dis miss prese

nts his aff idavit with

certain documents obtained from the office of the Boar d.
The Trial Court entered the following “Fina l Order.”-4- This cause, brought pursuant to the Tennessee Ope n Meetings Act, T.C.A. § 8-44-101 et seq, came to be heard on the 9th day

of February , 1996, before the Honorab le Hamilto n Gayden, Judg e of the F irst Circu it Court for Davidson County, Tennessee, upon the Motion to Dismiss filed by Defendant, The Metropolitan Go ve rn me nt of

Na sh vi ll e a nd Da vi ds on Co un ty. After c onsidera

tion of the

initial ple adings, Defend ant’s motion, the

response thereto , Defendant’s r

eply to that response , and ac company ing memo

randa of law, as w ell as arg uments of both coun sel in ope

n court, t his Court makes the following findings of fact and c onclusions of law: 1. A meeting of the Metropolitan Board of Parks a nd Recreation) (“Parks Board” ) occurred on April 4, 1995. 2. At the April 4, 1995, Parks Board meeting, the subject of the acquisition of the Grassmere Wildlife Park Property by

the Metropolitan Government was before the Parks Board and was fully discussed. 3. There w as public

notice of the April 4, 1995, Pa

rks Board meeting in accorda nce with the requirements of the Open Mee

tings Act. 4. The Minute s of the Ap ril 4, 1995 , meeting

do not clearly r eflect the Parks Board’s approva l of the acquisition of th e G ra ss me re Pa rk Pr op er ty. 5. A m ee ti ng of

th e P ar ks Bo ar d o cc ur re d o n J an ua ry 2, 1996. 6. At the January 2, 1996, meeting of the Parks Board, a resolution was passed approving the acquisition of the Grassmere Wildlife Park Property and amending the minutes of the Ap ril 4, 1995 Meeting

to refle ct that ap

proval. 7. The plaintiff, Mr. Don Zseltvay , was present at the January 2, 1996 meeting

of the Parks Board. 8. The action of the Parks Board at its January 2, 1996, meeting ratifie d any

technic al mistake s relating to the A pril 4, 1995, Park Board’s meeting nunc pro tunc. On the ba sis of the a

bove find ings, thi s Court con

cludes th at the Plaintiff has failed to state a claim upon which relief may be granted under the Tennessee Open Meetings Act, and that the Defend ant is enti

tled to dism

issal of th is complaint against it. IT I S THEREFORE ORDERED, ADJUDGED, AND DECREED: 1. That all claims against defendant Metropolitan Government of Nashville and Davidson County , Tennessee, in this matter are hereby

dismissed.-5- 2. That the costs in this action should be taxed to the pl ai nt if f, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y. Although not mentioned in appellant’s issues, the matter of standing should be discu ssed b riefl y. This s uit i s actu ally two a ction s, (1) a suit to enf orce th e Publ ic Meet ings Act, and (2) a suit for declaratory judgment invalidating the Council resolution.
Where a suit is brought under the Public Meetings Act and the r elief sought was as allowed b y th at statute , the plaintiff’s r ight to su e for tha

t relief is determ ined by that statu te and any re

liance upon the Declaratory Judgment Law may

be treated as surplusage for purposed of determining standing to sue under the Public Mee tings Act, curve Element

ary School Pa rent and Te achers O rganizatio n v. Laude rdale Coun ty School Board , Tenn. App. 1980, 608 S.W.2d 855.
A Tennessee Corporation located in Nashville has standing to sue to enforce the Public Meetings Law in respect to Nashville City Government actions. Metro Air Research Testing Authority Inc., v. Metropolitan Government , Tenn. App. 1992, 842 S.W.2d 611.
This Court concludes that an allegation of citizenship in Metropolitan Nashville states standing to sue to e

nforce the Public

Meeting s Act in re spect to M etropolit an Boar ds.
That par t of plaint iff’s suit which sou ght to en force t he Public M eeting s Act ag ainst the Boa rd of P arks an d Recr eatio n was n ot su bject to di smis sal fo r lack o f stan ding.
The motion to dismiss asserts that the complaint shows on its face that the Board took no official action at the meeting which is alleg ed to have violated the Public Meetings L aw. The comp laint stat

es: Th e a pp ro va l b y th e b oa rd of Pa rk s a nd Re cr ea ti on ci te d b y the Metropolitan cited by the Me tropolitan Counsel in Substitute Resolution N. R95-1608 was not done at an open meeting in compliance with the Tennessee Ope n-6- Meetings Act T.C.A. § 8-44-102 et seq There wa s no vote taken in any public meeting to approve the purchase of the re al prope

rty as is req uired T.C .A. § 8-44 -101 et seq and § 8-44-104. The comp laint doe s not state affirma tively that any action wa s taken by

the Boa rd in violation of the Public Meetings Law. F or this reason, it fails to state a claim for which relief can be granted.

There is evidence in the record that af ter the passage of the Council Resolution, the Board, at a meeting in compliance with the Public Meetings Law, did formally approve the acquisiti on of the s ubject pr operty . This fact, if true , would not supply an alleg ation whic

h is missing f rom the c omplaint.
It is apparent that the primary and ultimate purpose of appellant’s suit is to prevent the acquisition of the subject land by the city by invalidating the Council resolution. The complaint does not state grounds for this relief.

In the first pla ce, the c omplaint do es not allege facts which give appe llant standing to challenge the resolution.
“Standing” is a judge-made doctrine used to refuse to determine the merits of a leg al controve rsy irrespective of

its correctness, w

here the party advanc ing it is not proper ly situated to prosecute the action. Knierim Le atherwood, Tenn. 1976, 542 S.W.2d 806.

With out av erment by the com plain ing li tigant of a sp ecial inter est, s tatus or wro ng, the cour ts will not pe

rmit priva te citizen s to interf

ere with a municip al contr

act. Badgett v. Rogers , 222 Tenn. 374, 436 S.W.2d 292.-7- The standing doctrine requires not only a distinct and palpable injury but a lso caused
connec tion between the cl aimed inju ry and the challeng ed condu ct. Morristown Rescue Squad, Inc. v. Volunteer Development Co., Inc . Tenn. App. 1990, 793 S.W.2d 262.
The complaint does not allege that the plaintiff is a taxpay er of the city

and will suffer increa sed taxes, or any

other ci rcumstan ce that will produc e person al loss or injury to him.
The comp laint stat

es: It shall recommend to the council (a ) the sales of any lands owned by the metr

opolitan government for park or recre ation pur

poses and no longe r neede d for such purpose s, (b) the acquisition by conde mnation of any additional lands needed for park or recr

eation purposes, and (c) the acceptance of any

gift of lands offered for par k or recreation purposes. In the acquisition or disposition of land, the board shall cooperate closely

with the planning commission, whose re co mm en da ti on sh al l b e s ou gh t a nd ca re fu ll y co ns id er ed by the board. A careful reading of the

quoted charter provision discloses that it does not apply to all acquisitions of land for par k purposes. It specifies: (a) acquisition by condemnation and (c) acceptanc e of gifts of land; but it does not mention purchase without condemnation, which is the transaction authorized by the Council resolution.
The resolution and option agreement exhibited to the complaint plainly state that the consider ation for the tran sfer inc ludes one dollar ($ 1.00) an d other g ood and va luable considerations including the agree ment of the city to reimburse the conveyor

for specified maintenance and personnel expenses. Under these circumstances, the proposed acquisition was neither by

condemnation nor by g

ift and was not governed by the quoted charter provision.-8- Since the charte r provision is inapplicable, it is unnec essary for this Court to determine whether it invalidates any action of the city Council which is not appr oved by the Parks Board.
The judgment of the

Trial Cour

t is affir med. Costs o f this app eal are taxed ag ainst appella nt. The c ause is r

emanded to the Tri al Court f

or any necessa ry further procee dings.

AFFIRMED AND REMAND ED.

___________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR:

_____________________________ SAMUEL L . LEWIS, JUDGE

_____________________________ BEN H. CANTRELL , JUDGE