Honorable Hamilton v. Gayden, Jr., Judge ( 1996 )

DON ZSELTVAY, )
)
Plaintiff/Appellant, )
) Davidson County Circuit
) No. 96C-13
VS. )
) Appeal No.
) 01-A-01-9605-CV-00201
METROPOLITAN GOVERNMENT OF )
NASHVILLE AND DAVIDSON
COUNTY, TENNESSEE,
)
)
)
FILED
Defendant/Appellee. )
October 18, 1996
IN THE COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT DAVIDSON COUNTY, TENNESSEE
HONORABLE HAMILTON V. GAYDEN, JR., JUDGE
DAN R. ALEXANDER, #7065
2016 8th Avenue South
Nashville, Tennessee 37204
ATTORNEY FOR PLAINTIFF/APPELLANT
ERIKA GEETTER, #14617
2016 8th Avenue South
Nashville, Tennessee 37204
ATTORNEY FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
DON ZSELTVAY, )
)
Plaintiff/Appellant, )
) Davidson County Circuit
) No. 96C-13
VS. )
) Appeal No.
) 01-A-01-9605-CV-00201
METROPOLITAN GOVERNMENT OF )
NASHVILLE AND DAVIDSON )
COUNTY, TENNESSEE, )
)
Defendant/Appellee. )
OPINION
The plaintiff, Don Zseltvay, has appealed from the judgment of the Trial Court
dismissing his suit to enforce the Tennessee Open Meetings Act as to an action of the Board
of Parks and Recreation and to invalidate a resolution of the Metropolitan Council because it
was not based upon a valid action of the Board.
The issues, as stated by appellant 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 technical mistakes relating to the April 4, 1995
Park Board’s meeting nunc pro tunc?
The complaint alleges that:
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 general jurisdiction
of this Court.
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4. On May 16, 1995, the Metropolitan Council adopted a resolution authorizing
the purchase of 195.03 acres for use of the Board of Parks and Recreation, and stating:
Whereas, the purchase has been approved by the Board
of Parks and Recreation and the Metropolitan Planning
Commission ...
5. The Metropolitan Charter provides that the
Board of Parks and Recreation “shall recommend to the
Council” --- the acquisition by condemnation or
acceptance of any gift of lands offered for park or
recreation purposes.
6. The “ordinance and laws” of the city 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 Board.
8. The approval by the Board was not passed at an
“open meeting” and no vote was taken in any public
meeting.
The complaint prayed for enforcement of T.C.A. § 38-44-106, the Public Meetings
Law and invalidation of the Council resolution.
The defendant moved to dismiss for failure to state a claim for which relief can be
granted. The memorandum supporting the motion asserts (1) that the complaint fails 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 Meetings Act, and (3) That the complaint does not establish standing of plaintiff to
invalidate the Council resolution.
Plaintiff ‘s response to the motion to dismiss presents his affidavit with certain
documents obtained from the office of the Board.
The Trial Court entered the following “Final Order.”
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This cause, brought pursuant to the Tennessee Open
Meetings Act, T.C.A. § 8-44-101 et seq, came to be
heard on the 9th day of February, 1996, before the
Honorable Hamilton Gayden, Judge of the First Circuit
Court for Davidson County, Tennessee, upon the Motion
to Dismiss filed by Defendant, The Metropolitan
Government of Nashville and Davidson County.
After consideration of the initial pleadings, Defendant’s
motion, the response thereto, Defendant’s reply to that
response, and accompanying memoranda of law, as well
as arguments of both counsel in open court, this Court
makes the following findings of fact and conclusions of law:
1. A meeting of the Metropolitan Board of Parks and
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 was public notice of the April 4, 1995, Parks
Board meeting in accordance with the requirements of the
Open Meetings Act.
4. The Minutes of the April 4, 1995, meeting do not
clearly reflect the Parks Board’s approval of the acquisition
of the Grassmere Park Property.
5. A meeting of the Parks Board occurred on January
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 April 4, 1995 Meeting to reflect that approval.
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 ratified any technical mistakes relating to the April
4, 1995, Park Board’s meeting nunc pro tunc.
On the basis of the above findings, this Court concludes that
the Plaintiff has failed to state a claim upon which relief may be
granted under the Tennessee Open Meetings Act, and that the
Defendant is entitled to dismissal of this complaint against it.
IT IS 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.
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2. That the costs in this action should be taxed to the
plaintiff, for which execution may issue if necessary.
Although not mentioned in appellant’s issues, the matter of standing should be
discussed briefly. This suit is actually two actions, (1) a suit to enforce the Public Meetings
Act, and (2) a suit for declaratory judgment invalidating the Council resolution.
Where a suit is brought under the Public Meetings Act and the relief sought was as
allowed by that statute, the plaintiff’s right to sue for that relief is determined by that statute
and any reliance upon the Declaratory Judgment Law may be treated as surplusage for
purposed of determining standing to sue under the Public Meetings Act, curve Elementary
School Parent and Teachers Organization v. Lauderdale County 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 enforce the Public Meetings Act in respect to Metropolitan Boards.
That part of plaintiff’s suit which sought to enforce the Public Meetings Act against
the Board of Parks and Recreation was not subject to dismissal for lack of standing.
The motion to dismiss asserts that the complaint shows on its face that the Board took
no official action at the meeting which is alleged to have violated the Public Meetings Law.
The complaint states:
The approval by the board of Parks and Recreation cited by
the Metropolitan cited by the Metropolitan Counsel in
Substitute Resolution N. R95-1608 was not done at an
open meeting in compliance with the Tennessee Open
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Meetings Act T.C.A. § 8-44-102 et seq There was no
vote taken in any public meeting to approve the purchase
of the real property as is required T.C.A. § 8-44-101 et
seq and § 8-44-104.
The complaint does not state affirmatively that any action was taken by the Board in
violation of the Public Meetings Law. For this reason, it fails to state a claim for which relief
can be granted.
There is evidence in the record that after the passage of the Council Resolution, the
Board, at a meeting in compliance with the Public Meetings Law, did formally approve the
acquisition of the subject property. This fact, if true, would not supply an allegation which is
missing from the complaint.
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 place, the complaint does not allege facts which give appellant standing to
challenge the resolution.
“Standing” is a judge-made doctrine used to refuse to determine the merits of a legal
controversy irrespective of its correctness, where the party advancing it is not properly
situated to prosecute the action. Knierim Leatherwood, Tenn. 1976, 542 S.W.2d 806.
Without averment by the complaining litigant of a special interest, status or wrong,
the courts will not permit private citizens to interfere with a municipal contract. Badgett v.
Rogers, 222 Tenn. 374, 436 S.W.2d 292.
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The standing doctrine requires not only a distinct and palpable injury but also caused
connection between the claimed injury and the challenged conduct. 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 taxpayer of the city and will suffer
increased taxes, or any other circumstance that will produce personal loss or injury to him.
The complaint states:
It shall recommend to the council (a) the sales of any
lands owned by the metropolitan government for park or
recreation purposes and no longer needed for such purposes,
(b) the acquisition by condemnation of any additional lands
needed for park or recreation purposes, and (c) the
acceptance of any gift of lands offered for park or recreation
purposes. In the acquisition or disposition of land, the board
shall cooperate closely with the planning commission, whose
recommendation shall be sought and carefully considered by
the board.
A careful reading of the quoted charter provision discloses that it does
not apply to all acquisitions of land for park purposes. It specifies: (a) acquisition by
condemnation and (c) acceptance 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
consideration for the transfer includes one dollar ($1.00) and other good and valuable
considerations including the agreement 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 gift and was not governed by the quoted charter
provision.
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Since the charter provision is inapplicable, it is unnecessary for this Court to
determine whether it invalidates any action of the city Council which is not approved by the
Parks Board.
The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against
appellant. The cause is remanded to the Trial Court for any necessary further proceedings.
AFFIRMED AND REMANDED.
___________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________
SAMUEL L. LEWIS, JUDGE
_____________________________
BEN H. CANTRELL, JUDGE
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