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.




                                                  -2-
       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.”




                                              -3-
   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.



                               -4-
                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

                                                 -5-
               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.




                                               -6-
       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.




                                               -7-
       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




                                              -8-
