             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                      FILED
                                                         July 31, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
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 CIRCUIT COURT OF DAVIDSON COUNTY
                    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 Metropolitan
  Government of Nashville and Davidson County

RACHEL D. ALLEN
LIZABETH D. FOSTER
THOMAS G. CROSS
Metropolitan Attorneys
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.
                                 OPINION


              The plaintiff claimed that Nashville’s Board of Parks and Recreation

conducted its business in such a way as to violate the Open Meetings Act, Tenn.

Code Ann. § 8-44-101, et seq. The trial court refused to discipline the Board,

dismissing the complaint against it on a finding that the Board had committed a merely

technical violation of the Act. We reverse, and direct the court to impose judicial

oversight upon the Board, as is required by the Act, but we decline to comply with the

plaintiff’s request that we declare the Board’s action to be void and of no effect.



                                          I.



              On April 4, 1995, the Board of Parks and Recreation of Nashville and

Davidson County (the Board) held its regular monthly meeting. The matters on the

agenda included consideration of the acquisition of a 195 acre tract of real estate

known as Grassmere Wildlife Park. It is undisputed that prior to this meeting, the

Board met the public notice requirements of Tenn. Code Ann. § 8-44-103 of the Open

Meetings Act. The only reference to Grassmere in the subsequently published

minutes of the meeting of April 4 are found as follows under the heading of Old

Business:

                      GRASSMERE WILDLIFE PARK UPDATE

              Mr. Bob Sullivan, President and CEO of Cumberland
              Museums, was present to answer questions from the Board
              regarding the acquisition. Ms. Erika Geetter, attorney for the
              Metropolitan Government was also present to introduce the
              proposed management agreement for Grassmere Wildlife
              Park. All proposed agreements are subject 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



                                         -2-
been approved by the Board of Parks and Recreation and the Metropolitan Planning

Commission.



              On January 2, 1996, Donald Zseltvay filed a complaint in the Circuit

Court for Davidson County. He claimed that the Board had never taken a vote on the

acquisition of Grassmere, and that since the Metro Charter required that the Metro

Council obtain the approval 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 of Parks and Recreation held another

regularly scheduled meeting, at which Mr. Zseltvay was present. Prompted in part by

a letter from Erika Geetter which pointed out the deficiency in the minutes of the

earlier meeting, the Board took the action which is described in the minutes of the

January 2 meeting as follows:

                      GRASSMERE WILDLIFE PARK UPDATE

              It was also noted that during 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 the 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 of Ms. Jones, seconded by Mr. Fossick, the
              Board unanimously accepted and approved the acquisition of
              Grassmere. The Board further resolved that 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 court found that the

Board had corrected any technical mistakes relating to its meeting of April 4, 1995,

and dismissed the complaint for failure to state a claim upon which relief may be

granted. The plaintiff subsequently appealed.




                                         -3-
              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. Zseltvay lacked standing to

challenge the Metro Council’s purchase of the Grassmere property, because he did

not allege any personal interest in the property, or that he would suffer any damages

or injuries from the completion of the transaction “different in character or kind from

those sustained by the public at 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 which requires a

recommendation by the Board prior to the acquisition of property did not apply to the

transaction in question, because it specifies only acquisition by condemnation and

acceptance of gifts of land, but does not mention purchase without condemnation,

which was the transaction authorized by the Council resolution. See Metro Charter

Sec. 11.1002(5). We accordingly affirmed the trial court’s dismissal of Mr. Zseltvay’s

claim against the Metro Council.



              However we noted that Tenn. Code Ann. § 8-44-106 of the Open

Meeting Act gives the courts 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 reversed

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 witnesses including

Mr. Zseltvay, after which it again dismissed his claim. In its findings of fact and

conclusions of law, the court found that the Board fully discussed 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 that the meeting of January 2, 1996 was


                                          -4-
an open meeting pursuant to the Act, at which the Board cured any technical violation

relating to the earlier meeting. The present appeal followed.



                                           II.



              The policy behind the Public Meetings Act is stated clearly and simply

in Tenn. Code Ann. § 8-44-101: “The general assembly hereby declares it to be the

policy of 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 governing body be open to the public, Tenn. Code Ann. § 8-44-

102, that adequate public notice be given of the regular and special meetings of

governmental bodies, Tenn. Code Ann. § 8-44-103, that the minutes of any such

meeting be promptly and fully recorded, and be open to public inspection, Tenn. Code

Ann. § 8-44-104(a), and that all votes of governmental bodies be public, Tenn. Code

Ann. § 8-44-104(b).



              The chief violation of the Act alleged by the appellant involves Tenn.

Code Ann. § 8-44-104(a) which reads in its entirety as follows:

               (a) The minutes of a meeting of any such governmental
              body shall be promptly and fully recorded, shall be open to
              public inspection, and shall include, but not be limited to, a
              record of persons present, all motions, proposals and
              resolutions offered, 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 of its

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 inadvertent, and that the error was corrected

by its subsequent modification of the minutes on January 2, 1996. As we stated

above, the trial court issued findings of fact and conclusions of law that were

consistent with the appellee’s theory. The trial court stated that any violation of the



                                          -5-
Open Meetings Act on the part of the Board was a “technical violation”, and a

“violation . . . of form rather than substance.“



                                              III.



                 Our review of the findings of fact of the trial court is governed by Rule

13(d) of the Rules of Appellate Procedure, which states that such findings shall be

accompanied by a presumption of correctness, unless the preponderance of the

evidence is otherwise. Thus, we must affirm the court’s finding that the Board fully

discussed and voted upon the recommendation as to the acquisition of Grassmere,

unless the evidence preponderates otherwise.



                 Three witnesses who were present at that meeting testified at trial on

September 2, 1997. Jim Fyke, the Director of the Board of Parks and Recreation,

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

what happened at that meeting. Edward Fossick, another Board member, testified

that a vote was taken to forward the Board’s recommendation to the Metro Council for

their approval of the acquisition.



                 While the issue is not free from doubt, we cannot say that the evidence

preponderates against the factual findings of the trial court, in view of the testimony

presented, and considering the long interval between the meeting in question and the

time of trial.



                 The trial court’s conclusions of law, as opposed to its findings of fact, are

reviewed on appeal with no presumption of correctness. Union Carbide Corp. v.

Huddleston, 854 S.W.2d 87 (Tenn. 1993); Jahn v. Jahn, 932 S.W.2d 939 (Tenn. App.


                                             -6-
1996). The appellant argues, correctly we believe, that the Act does not make a

distinction between technical and substantive violations of its provisions. He then

urges us to impose all the sanctions required by the Act for a violation which the trial

court acknowledged to have occurred.



              The appellant cites us to the case 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 earlier violation of

the Act. In the Neese case, a quorum of the members of the Board of Education of

the Paris, Tennessee Special School District gathered for a retreat at a Kentucky

resort with the Superintendent of the District. At the gathering, they discussed at

length the issue of “clustering” which involved the Board’s organization of the schools,

and which was of great public interest. Though a local newspaper and a radio station

had reported on plans for the upcoming Kentucky retreat, the public was never

notified that clustering would be discussed.



              At the next regularly scheduled meeting of the Board, the

Superintendent was instructed to prepare a clustering plan for the upcoming school

year, and at the following regular meeting the Superintendent’s plan was adopted by

the Board. The plaintiffs claimed that the Kentucky gathering was in violation of the

Open Meetings Act, and that the Board’s subsequent decision on clustering should

be voided, because it was based upon deliberations in which the public played no

part.



              The trial court found that 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, and that the public was not given adequate

notice pursuant to the Act. We held, however, that the clustering plan did not have




                                         -7-
to be voided, because prior to its adoption it was subjected to new and substantial

consideration in a public forum. The court stated that,

                      “We do not believe that the legislative intent of this
              statute was forever to bar a governing body from properly
              ratifying its decision made in a prior violative manner.
              However, neither was it the legislative intent to allow such a
              body to ratify a decision in a subsequent meeting by a
              perfunctory recrystallization of its earlier action.”

813 S.W.2d at 436.



              The appellant argues that the actions taken in the instant case during

the Board’s January 2, 1996 meeting involved just such a “perfunctory

recrystallization” of its earlier action, and that the Board, therefore did not properly

ratify its earlier decision in accordance with the dictates of Neese, supra.



              If, however, we accept the trial court’s finding (which we do) that the

question of the acquisition of Grassmere received a full, fair and open hearing

pursuant to the Act at the meeting of April 4, 1995, then the Board’s previous decision

was not made in a violative manner. The Board performed a valid and necessary

remedial action by subsequently amending its minutes, and it was not obligated to

debate the question afresh before doing so. Nonetheless, we agree 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 remedies available for its violation.



                                            IV.



              Remedies for violation of the Open Meetings Act are found in the Act

itself. Tenn. Code Ann. § 8-44-105 states in relevant part that “[a]ny action taken at

a meeting in violation of this part shall be void and of no effect . . . .” Another section,

Tenn. Code Ann. § 8-44-106 reads:

              (c)   The court shall permanently enjoin any person
              adjudged by it in violation of this part from further violation of


                                             -8-
              this part. Each separate occurrence of such meetings not
              held in accordance with this part constitutes a separate part.

              (d)    The final judgment or decree in each suit shall state
              that the court retains jurisdiction over the parties and subject
              matter for a period of one (1) year from date of entry, and the
              court shall order the defendants to report in writing
              semiannually to the court of their compliance with this part.



              While the remedies of Tenn. Code Ann. § 8-44-105 and 106 are not

meant to be mutually exclusive, Tenn. Code Ann. § 8-44-105 appears to be

inapplicable to this case.



              The sanction of Tenn. Code Ann. § 8-44-105 applies to “[a]ny action

taken at a meeting in violation of this part,” and it is at least arguable that the failure

to include an account of the vote in the subsequently-published minutes of the April

4 meeting was not an action taken at that 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 equity to declare the action void.



              On the other hand, Tenn. Code Ann. § 8-44-106 appears to supply a

remedy appropriate to the circumstances of this case. Though the appellee argues

that imposition of sanctions would have no purpose 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 guarantee of subsequent compliance. We therefore direct the

trial court to impose the above-mentioned sanctions upon the Board in accordance

with §§ 8-44-106(c) and (d).



              Finally, we must note that although the appellant’s brief focused on his

claim against the Board of Parks and Recreation, his attorney expressed at oral

argument his client’s hope that a favorable ruling on those questions could somehow

be bootstrapped into a reversal of this court’s rejection of his claim against the Metro

                                           -9-
Council.   We must therefore reiterate our earlier ruling: the appellant failed to

demonstrate that he has standing to challenge Metro’s contract to purchase

Grassmere. That ruling has become the law of the case by virtue of the appellant’s

failure to appeal it to the Supreme Court, and it cannot be reversed.



                                         V.



             The order of the trial court is reversed in part and affirmed in part.

Remand this cause to the Circuit Court of Davidson County for further proceedings

consistent with this opinion. Tax the costs on appeal to the Metropolitan Government

of Nashville and Davidson County.




                                         _________________________________
                                         BEN H. CANTRELL, JUDGE


CONCUR:




_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION




_____________________________
WILLIAM C. KOCH, JR., JUDGE




                                       - 10 -
              IN THE COURT OF APPEALS OF TENNESSEE
                          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.    )

                                   JUDGMENT

               This cause came on to be heard upon the record on appeal from the

Circuit Court of Davidson County, briefs and argument of counsel; upon consideration

whereof, this Court is of the opinion that the trial court committed reversible error by

dismissing the plaintiff’s complaint in its entirety, thus foreclosing the possibility of any

judicial remedy for an admitted violation of the Public Meetings Act. In all other

respects, the judgment of the trial court is affirmed.

               In accordance with the opinion of the Court filed herein, it is, therefore,

ordered and adjudged by this Court that the judgment of the trial court be reversed in

part and affirmed in part. The cause is remanded to the Circuit Court of Davidson

County for further proceedings in accordance with the opinion filed herein and for the

collection of the costs accrued below.

               Costs of this appeal are taxed against the Metropolitan Government of

Nashville and Davidson County for which execution may issue if necessary.



                                             ________________________________
                                             HENRY F. TODD, PRESIDING JUDGE
                                             MIDDLE SECTION


                                             ________________________________
                                             BEN H. CANTRELL, JUDGE


                                             ________________________________
                                             WILLIAM C. KOCH, JR., JUDGE
