# FILED
July 31, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

DON ZSELTVAY, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9710-CV-00587 VS. ) ) Davidson Circuit ) No. 96C-13 METROPOLITAN GOVERNMENT OF ) NASHVILLE AND DAVIDSON ) COUNTY, TENNESSEE, ) ) Defendant/Appellee. )
APPEALED FROM THE CIRC UIT COURT OF DAVIDSON C

OUNTY AT NASHVILLE, TENNESSEE THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE
DAN R. ALEXANDER 2016 8th Avenue South Nashville, Tennessee 37204 Attorney for Plaintiff/Appellant JAMES L. MURPHY III Director of Law The Department of Law of the Metropoli tan Government of Nashvil le and Davidson County RACHEL D. ALLEN LIZABETH D. FOSTER THOMAS G. CROSS Metropol itan Atto rneys 204 Metropolitan Courthouse Nashville, Tennessee 37201 Attorneys for Defendant/Appellee

AFFIRMED IN PART; REVERSED IN PART

AND REMANDED

BEN H. CANTRELL, JUDGE CONCUR: TODD, P.J., M.S. KOCH, J.- 2 - 

## O P I N I O N

The plaintiff claimed t h at Nashville’s Boar d of Parks and Recreation cond uc ted its business in such a w ay as to violate the O pen Meetings Act, Tenn. Code Ann. § 8-44-101, et seq. The tr ial court refused to disci pline the Board, dismissing the complaint against it on a finding that the Board had com mitted a merely technical viola tion of the Act. We reverse, and direct the cour t to impose judicial oversight

upon the Board, as is required by the Act, but we decline to comply with the plaintiff’s request that w e declare the Board’s actio n to be void and of no effect.

I

.
On April 4, 1995, the Board of Park s and Recreation of Nashvi lle and Davidson County (th e Board) h eld its reg ular mon thly meeting . The matters on the agenda included consideration of the ac quisition of a 195 acre trac t of real estat e known as Grassmere Wildlife Park. It is undi sputed that prior to this meeting, the Board met the public notice requi rements of Tenn. Code Ann. § 8-44-103 of the Ope n Meetings Act. The only refe rence to G rassmere in the sub sequentl y publi shed minutes of the meeting of April 4 are found as follows under th e heading of Old Business: GRASSMERE WILDLIFE PARK UPDA TE Mr. Bob Sullivan, Pre s ident and CEO of Cumberland Museums, was

present to answer ques tions from the Board regarding the acquisition. Ms. Er ika Geetter, attorney for the Metropolitan Government was also pr esent to introduce the proposed management ag re ement for Grassme re Wildlife Park. All proposed agreements are sub ject to Metropolitan Council approval.

On May 16, 1995, the Metro Council (the Council) adopted a resolution approving the purchase of Grassmere. The resolution recited that the purchase had- 3 -

been approved by the Board of Parks and Recreation andthe Metropolitan Planning Commission.

On January 2, 1996, Donald Zs eltvay filed a complaint in th e Circu it Court for Davidson County. He claimed that the Board had never taken a vote on the acquisition of Grassmere, and that since the M etro Charter requir ed t hat t he Metro Council obta in the appro val of the Board prior to the acquisition of any land for recreational purposes, the Council’s action was null and void. He also claimed that the Board had violated the Open Meetings Act.

On that same day, the Board o f Parks and Recreation held ano ther regularly scheduled meeting, at which Mr. Zseltvay was present. Prompted in part by
a letter from Erika Geetter w hich point ed out t he deficiency in the minutes of the earlier meeting, the Board took the action whi ch is described in the minutes of the January 2 meeting as follows:

GRASSMERE WILDLIFE PARK UPDA TE It was also noted tha

t durin g the April 1995 Park Board meeting the sale of the Grassmere property to Metro as well as the proposed management agreement for the running of the park were discussed by th e Board. However the April minutes do not reflect the action taken by the Board to accept the Grassmere Property and proceed with the acquisition. Upon motion ofMs. Jones, seconded by Mr. F ossick, the Board unanimously accepted and approved the acq uisition of Grassmere. The Board further resolved th at the minutes of the April 1995 meeting should be amended to reflect the Park Board’s approval.

After a hearing on Mr. Zseltvay’s complaint, the trial cour t found that the Boa rd had corrected any technic al mistakes relating t

o its meeting of April 4, 1995, and dismiss ed the complaint for failure to state a c laim upon which relief may be granted. The plaintiff subsequentl y appealed.- 4 - On January 6, 1997, this Court filed an opinion which affirmed the trial court in part and reversed it in part. We found that Mr. Zseltv ay lacked standing to challenge the Metro Council’s purchase of the Gr assmere property, because he did not allege any personal i nterest in the property,or thathe would suffer any damages
or injuries from the completion of the transaction “different in character or k ind from those sustained by the public a t large.” Quoting

from Badgett v. Rogers , 436 S.W.2d 292, 294, 222 Tenn. 374, 379 (1968 ).

We also held that the provision of the Metro Charter whi ch requires a recommendation by

the Board prior to the acq uisition of property did not apply to the transaction in questio n, because it specifies on ly acqui sition by condemn at ion and accep tance of gifts of land, but does not mention pur chase without condemnation, which was the transaction author ized by the Council resolution. See Metro Cha rter Sec. 11.1002(5). We accordingly affirmed the trial court’s dismissal of Mr. Zseltvay’s claim against the Metro Council.

Howeve r we noted that Tenn. Code Ann. § 8- 44-106 of the Ope n Meetin g Act gives the court s jurisdiction to enforce the Act “upon application of any citizen of this state.” Thus there was no question of standing to prevent Mr. Zseltvay from pursuing his action against the Board of Parks and Recreation, and we rev ersed that portion of the trial court’ s order that dismissed his claim against the Board for violating the Act.

On remand, the trial court heard evidence from four witness es including Mr. Zseltvay , after which it again dismissed his claim. In i ts findings of fact an d conclusionsof law, the court found that the Board fully discus sed the subject of the acquisition of the Grassmere Wildlife Park property at its meeting of April 4, 1995; that the minutes of that meeting do not clearly reflect the

Board’s vote of approval of the acquisition of the Grassmere property; and thatthe meeting of January 2, 1996 was- 5 -

an open meeting pursuant to the Act , at which the Board cured any technical violation relating to the earlier

meeting. The present appeal follow ed.

II.
The policy behind the Public Meetings Act is stated clearlyand simply in Tenn. Code Ann. § 8-44-101: “The general assembly hereby decla res it to bethe policyof this state that the formation of public policy and decisions is public business and shall not be conducted in secret.” To this end, other provisions of the Act require that meetings of any gover ning body be open to the public, Tenn. Code Ann. § 8-44- 102, that adequate public notic e be given of the regular and special meetings of governmental bodies, Te nn. Co de Ann. § 8-44-103, that the minutes of an y such meeting be promptly and fully r ecorded, and be open to public inspection, Tenn. C ode Ann. § 8-44-104(a), and that all votes of governmental bodies be publ ic, Tenn. Code Ann. § 8-44-104(b).

The chief violation of the Act al leged by the ap pellant involves Tenn. Code Ann. § 8-44-104(a) which reads in its entirety as follows:

(a) The minutes of a meeting of any such gove rnmental body shall be prompt ly and fu lly r ecorded, shall be open to public inspection, and shall include, but not b e limite d to, a re cord of persons present, all motions , proposal s an d resolutionsoffered, the results of any votes taken, and a record of individual votes in event of roll call.

The appellee admits that it failed to fully record the minutes ofits meeting of April 4, 1995, but insists that an open vote was taken in accordance with the Act, that the failure to record it was in advertent, and that the error was corrected by its subseque nt modification of the minutes on January 2, 1996. As we stated above , the trial court issued findings of fact and conclusions of la w that wer e consistent

w ith the appellee’s theory. The t rial court stated that any violation of the- 6 -

Open Meetings Act on the par t o f the Board was a “technical violation”, and a “violation . . . of form rather than substance.“

III.

Our review of the findin gs of fact of the trial court is governed by Rule 13(d) of the Rules of Appella te Procedure, which sta tes that such findings shall be
acco mpanied by a pr

esumpti on of correctnes s, unles s the pr eponder ance of th e evidence is othe rwise . Thus, w e must affi rm the co urt’s fi nding that the Board fully discussed and voted uponthe recommendation as to the acquisition of Gr assmere, unless the evidence preponder ates otherwise.

Three witnesses who w ere present at that meeting tes tified at trial on September

2, 1997. Jim Fyke, the D irector of the Board of Parks and Recreatio n, testified that there had been an open and full discussion of the acquisition at the April 1995 meeting, but he could not swear that there was a vote taken, because he did not remember. Edwin Bryan, a Board member, stated that he could not at all remember whathappened at that m eetin g. Edward Fossick, another Board member, testified that a vote was taken to forw ard the Board’s recommendation to the Metro Council for their approval of the acqu isition.

While the issue is not free from doubt, we cannot say that the evidence preponderatesagainst the fac tual findings of the trial court, in v iew of the testimony presented, and considering the long interval between the meeting in questionand the time of trial.

The trial court’s concl usions of law, as opposed to i ts findings of fact, are reviewe d on a ppeal with no presumption of cor rectness. Union Carbide Corp. v. Huddleston , 854 S.W.2d 87 (Tenn. 1993); Jahn v. Jahn , 932 S.W.2d 939 (Tenn. App.- 7 -

1996). The appellant argues, correctly we believe, that the Act does not make a dist inction between technical and subst antive violations of its provisions. He the n urges us to impose all the sanctions required by

the Act for a violation

which the trial court acknowledged to h ave occurred.

The appellant cites u s to the ca se of Neese v. Paris Special School District , 813 S.W.2d 432 (1990) for the proposition that the action taken by

the Board at its meeting of January 2, 1996 was not adequate to correct its earli er violation of the Act. In the Neese

case, a quorum of

the members of the Board of Education of the Paris, Tennessee Special Schoo l District gathere d for a retreat at a Kentucky resort with the Superintendent of the D istrict. At the gat hering, th ey discussed at length the issue of “cluste ring” which involved the Board’s organization of the schools, and which was

of great public interest.Though alocal newspaper and a r adio station had reported on plans forthe upcoming Kentucky re treat, the public was nev er notified that clustering w ould be discussed.

At t he next regularly scheduled meeting of the Board, th e Superintendent was instr ucted to prepare a clusteri ng plan for the upcoming school year, and at the following regular meeting the Superintendent’s p lan was adopted by the Board. The plaintiffs claimed that the Kentuck y gathering was

in violation of

the Open M eetings Act, and that the Boar d’s subsequent decision on clustering shoul d be voided, because it was based upon deliberations in which the publi c played n o part.

The trial court foundthat the Board did not violate the Act. On appeal, this court reversed, finding that the Kentucky gathering had to be considered a meeting under the Open Meetings Act , an d that th e public was not giv en adequate notice pursuant to th e Ac t. We held, ho wever, that the clust ering plan did not ha ve- 8 -

to be voided, because prior to its adoption i t was subjected to new and substantial consideration in a public forum. The court stated that,

“We do not believe that the leg islative intent of t his statute was forev

er to bar a governing

body from p rope rly ratifying its decisi on made in a pr ior viol ative ma nne r. However, neither w

as it the legislativ

e intent to allow

such a body to ratify a decisio n in a subs equent m eeting by a perfunctory recrystallization of its earlier action.” 813 S.W.2d at 436.

The appellant argues that the actions taken i n the instant case during the Board’s January 2, 1996 meeti ng involved jus t such a “perfunctory
re crys tallization”

of its earlier action, and that the Board, therefore did not properly ratify its ear lier decision

in acco rdance w

ith the d ictates

of Neese, supra.

If , however , we accept the trial c ourt’s finding (whi ch we do) that the ques tion of the acquisition of Grassmere received a full, fair and open hearing pursuantto the Act at

the meeting of April 4, 1995, then the Board’s previous decision
was not made in a violativ e manner. The Board performed a v alid and n ecessary remedial a ction by subsequently amending its minutes, and it was not obligated t o debate the question afresh before doing so. Nonetheless, we ag ree with the appellant that strict compliance with the Act is a necessity if it is to be effective, and we must continue our inquiry

by examining the re medies available for its v iolation.

IV.

Remedies for violation of the Op en Meetings Act are found in the Act itself. Tenn. Code Ann. § 8-44-105 states in relevant part that “[a]ny action taken a t
a meeting in violation of this part shall be voi d and of no effect .

. . .” Another section, Tenn. Code Ann. § 8-44-106 reads:

(c) The court shall perma nentl y enjoin any person adjudged by it in violation of this part from further violationof- 9 - this part. Each separate occurr en ce of such meetings not held in accordance with this part constitutes a separate part. (d) The final judgment or decree in each suit sh all state that the court retains juri sdiction over the parti es and subject matter for a period of one (1) year from date of entry, and the court shal l o rder the defendants to report in w riting semiannually to the court of their compliance with this part.

While the remediesof T enn. Code Ann. § 8-44-105 and 106 are not
me ant to be mutually exclus ive, Tenn. Code Ann. § 8-44-105 appea rs to b e inapplicable to this case.

The sanction of Tenn. Code Ann. § 8-44-105 applies to “[a]ny actio n taken at a meeting in violation of this part,” and it is a t least arguable that the failure to include an account of the vote in the subsequently-publ ished minutes ofthe April 4 meeting was not an actio n taken atthat meeting. The appellant acknowledges that there had been adequate notice of the meeting , and that it was open to the public. We thus see no reason in law or in eq uity to declare the acti on void.

On the other hand, Tenn. Cod e Ann. § 8-44-106 appears to supply a remedy appropriate to

the circumstances of this case. Though the appellee argues that imposition of sanctions wo uld have no pur pose other than to embarrass the Board, we do not

agree. The Legislature obviously felt that the use of injunction and the application of

judicial oversight to the activities of a governmental body in violation of the Act was the best gua rantee of subsequent compliance. We therefore direct the trial co urt to imp ose the above-mentioned sanctions upon the Boa rd in accordance with §§ 8-44-106(c) and (d).

Finally, we must note that although the appell ant’s brief focused on his claim against the Board of Parks and Recreation, his attorney express ed at or al argumenthis client’s hope that a favorable ruling

on those questions

could somehow be bootstrapped into a rever sal of this court’s rejec

tion ofhis claim against the Metro- 10 -

Council. We must therefore reiterate our ear lier ruling: the appel lant failed to demonstrate that he has standing to challe nge Metro’s contract to purchase Grassmere. That ruling has become the law of the case by virtue of the appellan t’s failure to appeal it to the Supre me Court, and it cannot be rev ersed.

V.

Th e order of the trial court is reversed in part and affirmed in part

. Remand this cause to the Circuit Court of Da vidson County for further procee dings consistent

with this opinion. Tax the costs on appeal to the MetropolitanGovernment of Nashvi lle and Da vidson Cou nty.

_________________________________ BEN H. CANTRELL, JUDGE
CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_____________________________ WILLIAM C. KOCH, JR., JUDGE

### IN THE COURT OF APPEALS OF TENN ESSEE AT NASHVILLE

DON ZSELTVAY, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9710-CV-00587 VS. ) ) Davidson Circuit ) No. 96C-13 METROPOLITAN GOVERNMENT OF ) NASHVILLE AND DAVIDSON ) Affirmed in Part; Reversed COUNTY, TENNESSEE, ) in Part; and Remanded ) Defendant/Appellee. )



### J U D G M E N T This cause came o n to be heard upon the record on appeal from the Circuit Court o

f David son County, bri efs and argument of counsel; upon consider ation whereo f, this Court is of the opinion that the trial court commit ted reversible error

by dismissing the plaintiff’s complaint in its entirety, thus foreclosi ng the possibility of any ju dicial remedy for an admitted viol ation of the Public Meetings Act. In all oth e r respects, the judgment of the tr ial court is affirmed. In accordance with the opin ion of the Court filed herein, it is, therefore, ordered and adjudged by this Court that thejudgment of the trial court be reversed in pa rt and affirmed in part. The cause is remande d to the Circuit Court of David so n County for further pr oceedings in accordance with the opinion filed herein and for the collecti on of th e costs ac crued be low.

Costs of this appeal are taxed aga inst the Metropolitan Government of Nashville and Davids on Count y for which e xecution may issue i f necess ary.

________________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

________________________________ BEN H. CANTRELL, JUDGE

________________________________ WILLIAM C. KOCH, JR., JUDGE