“‘It has long been the general rule that questions not raised in the trial court will not be entertained on appeal and this rule applies to an attempt to make a constitutional attack upon the validity of a statute for the first time on appeal unless the statute involved is so obviously unconstitutional on its face as to obviate the necessity for any discussion.’”
How later courts described this case
- “‘It has long been the general rule that questions not raised in the trial court will not be entertained on appeal and this rule applies to an attempt to make a constitutional attack upon the validity of a statute for the first time on appeal unless the statute involved is so obviously unconstitutional on its face as to obviate the necessity for any discussion.’”
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 7, 2011 Session
ARLIE “MAX” WATSON ET AL. v. LARRY WATERS ET AL.
Appeal from the Chancery Court for Sevier County
No. 08-8-358 David R. Duggan, Judge
No. E2010-01663-COA-R3-CV - Filed February 27, 2012
This action was filed by Arlie “Max” Watson, an elected county commissioner of Sevier
County, and three other citizens and taxpayers of Sevier County, Peggy Marshall, John A.
Meyers and Gerra Davis-Mary (collectively “the Plaintiffs”). They purported to act both
individually and on behalf of the State of Tennessee. They named as defendants the county
mayor, Sevier County, and the county commission as a body (collectively “the Defendants”).
They sought to invalidate certain actions – primarily the commission’s adoption of certain
procedural rules at a meeting held June 23, 2008 – and to disgorge the mayor of benefits he
“wrongly” received. The trial court initially dismissed all claims – except those made under
the Open Meetings Act – for lack of standing. It ordered that the caption be amended to
reflect that the Plaintiffs were acting individually and not on behalf of the State. The trial
court allowed the Open Meetings Act claims to proceed through discovery. Both sides of the
dispute filed a motion for summary judgment. With the exception of a finding that minutes
of some committee meetings were not properly filed in both the office of the county clerk and
the county mayor as required by a local rule, the court found no deficiencies in the challenged
actions. It granted the Defendants summary judgment as to all of the Open Meetings Act
claims. The Plaintiffs appeal. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Herbert S. Moncier and David S. Wigler, Knoxville, Tennessee, for the appellants, Arlie
“Max” Watson, Peggy Marshall, John A Meyers, and Gerra Davis-Mary.
Rhonda L. Bradshaw, Knoxville, Tennessee, for the appellees, Larry Waters, Sevier County
Board of Commissioners, and Sevier County Tennessee.
OPINION
I.
This is one of three cases the Plaintiffs filed to challenge certain actions of the mayor
and board of commissioners of Sevier County. The other two cases were dismissed for lack
of standing. Those cases were consolidated on appeal and affirmed in State ex rel. Watson
v. Waters, No. E2009-01753-COA-R3-CV, 2010 WL 3294109 (Tenn. Ct. App. E.S., filed
Aug. 20, 2010)(“Watson I”). In the present case, in addition to raising “standing” issues, the
Plaintiffs made allegations of violations of the Open Meetings Act, Tenn. Code Ann. § 8-44-
101 et seq. (2011) – allegations that they did not make in the other two cases. The Plaintiffs’
brief in the present case contains a concise and, therefore, useful characterization of their
claims and the disposition of those claims:
Sevier County Commissioner Arlie “Max” Watson and Sevier
County citizens and taxpayers Peggy Marshall, John A. Meyers,
and Gerra Davis-Mary sued Sevier County Commission
Chairman and Sevier County Mayor, Larry Waters, . . . the
Sevier County Commission and Sevier County Tennessee
[(referred to individually in this opinion as “the Mayor,” “the
Commission” and “the County”)] for declaratory judgment as to
whether it was lawful for [the Mayor] to also hold the
Commission appointed office of a non-elected Commissioner as
it’s [sic] Chair; whether [the Mayor] was a member of a
“governing body” consisting of himself, as appointed
Commission Chair, and the 25 elected County Commissioners
for the purposes of the Open Meetings Act; and whether [the
Mayor] had been sworn to hold the office of Chair of the . . .
Commission. [The Plaintiffs] sued for removal of [the Mayor];
recovery of benefits paid to [the Mayor] while holding office
unlawfully; and for Open Meeting[s] Act violations making void
decisions made prior to and resulting in a special called meeting
of the Commission and adoption of new rules for the
Commission on June 23, 2008.
[The trial court] dismissed all of [the Plaintiffs’] claims except
the Open Meeting[s] Act claims holding that Commissioner
Watson and the three citizens did not have standing. [The court]
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denied [the Plaintiffs’] Tenn. R. Civ. P. 54.02 designation of
[the] dismissals as being final and there was no appeal . . . .
The Open Meetings Act claims survived dismissal because [the]
Plaintiffs have statutory standing as citizens pursuant to T.C.A.
§ 8-44-106. Extensive discovery was developed on issues
presented by cross-motions for summary judgment on Open
Meetings Act claims. On April 4, 2010 [the court] granted [the]
County summary judgment on some of the Open Meeting[s] Act
claims. [The court] granted summary judgment against [the]
County on [the claim that minutes of certain meetings were not
properly recorded.]
The trial court held,1 as a matter of law, that: (1) with the exception of the failure to
record the minutes of certain committee meetings, there had been no Open Meetings Act
violations regarding certain changes in procedural rules adopted at an open meeting held June
23, 2008, and further that even if there were technical violations concerning the meetings that
preceded June 23, those deficiencies were cured by the action taken at the June 23 meeting,
when the proposed rule changes were fully discussed and
deliberated extensively by the full Commission at its meeting on
June 23, 2008, there being no evidence of any secret
deliberations with respect to that meeting, while there is
affirmative, negating evidence that there were no secret
deliberations with respect to that meeting, that adequate public
notice was given of that meeting, and that minutes of that
meeting were properly kept, recorded and filed, as will be
subsequently addressed herein;
[(2)] adequate public notice was given of each of the meetings
on February 18, 2008, May 12, 2008, May 19, 2008, June 11,
2008, and June 23, 2008;
and (3) because the Commission had adopted rules requiring that minutes of Commission
meetings “be filed both in the County Clerk’s office and in the Mayor’s office,” and not all
“steering committee” minutes had been filed in both offices, the Defendants had violated the
Open Meetings Act by not making the minutes of all public meetings open to the public as
1
In stating the court’s three holdings, we have utilized some of the court’s direct quotes, i.e., the
indented material.
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required by law. The court ordered the Defendants “to file all minutes of future meetings of
the Board of Commissioners, and its committees, in all offices where filing is required under
the local procedural rules.” The court also held that the failure to file all minutes in both
county offices did not void the action taken at the June 23 meeting because all minutes were
on file in one or the other of the two offices and that the minutes of the June 23 meeting were
properly filed in both.
The Plaintiffs filed motions to alter or amend which the trial court denied in one order.
The Plaintiffs timely filed a notice of appeal.
II.
The Plaintiffs raise six issues – the first of which has six “question” sub-issues – all
of which we have quoted verbatim except for random capitalization that we have deleted:
Is Tennessee’s judge-made standing rule constitutional?
Does Tennessee’s judge-made standing rule
conflict with the established public policy of
Tennessee?
Does Tennessee’s judge-made standing rule
exceed the Tenn. Const. Art. VI, §§ 1 and 3
authority of the judiciary and violates [sic] the
separation of powers of the legislature in violation
of Art. II, § 2?
Does Tennessee’s judge-made standing rule
violate [the Plaintiffs’] Art. 1, § 23 and First
Amendment Petition Clause Rights?
Does Tennessee’s judge-made standing rule
violates [sic] [the Plaintiffs’] privileges, liberties
and rights guaranteed by Tenn. Const. Art. I, §§ 1,
2, 8, 17, 19, and 21?
Does Tennessee’s judge-made standing rule
violate [the Plaintiffs’] First and Fourteenth
Amendment right to Political Association?
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Does Tennessee’s judge-made standing rule apply
where the plaintiff is the State of Tennessee?
[Does the Complaint state] a prima facie meritorious case?
Do [the Plaintiffs] have “municipal taxpayer” standing?
Were [the Plaintiffs] denied Tenn. Const. Art. I, § 6 right to a
jury trial by the trial court granting summary judgment where
there were material factual disputes?
Did the trial court err by failing to apply T.C.A. § 8-44-105 to
void proceedings that were required to have occurred prior to
being a valid June 23, [2008] meeting to adopt new commission
rules?
Did . . . Commissioner Arlie “Max” Watson have a special
interest not shared by the general public in the adoption of rules
that regulated his conduct as a commissioner?
(Italics in original.)
III.
These issues all present questions of law. We review a trial court’s resolution of
questions of law de novo with no presumption of correctness. Seals v. H & F, Inc., 301
S.W.3d 237, 241 (Tenn. 2010); Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836
(Tenn. 2008).
IV.
A.
The issues naturally separate themselves into those that relate to the claims dismissed
for lack of standing and those that relate to the Open Meetings Act claims dismissed on
summary judgment. We will address the issues related to standing first, and the issues
related to the summary judgment last.
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B.
Several of the issues regarding standing were directly addressed in Watson I. The
argument that Commissioner Watson had standing by virtue of his position as a
commissioner was made and rejected in Watson I. “[A] citizen’s status as a public official
does not confer a “special interest” that is sufficient to establish standing.” Watson I at * 6
(citing Malone v. City of Knoxville, No. E2002-00734-COA-R3-CV, 2003 WL 21018633
at *3 (Tenn. Ct. App. E.S., filed May 5, 2003)).
The Plaintiffs’ argument that they had “municipal taxpayer” standing is tied to their
request that the Mayor should be disgorged of any benefits he received while “wrongfully”
holding county offices. The “municipality” is Sevier County. The Plaintiffs made the
argument in Watson I “that they have standing as taxpayers of Sevier County.” Id. at *7.
We held, the “Plaintiffs cannot establish standing on this basis.” Id. We adhere to our
holding in Watson I.
The issue of whether the Plaintiffs stated a prima facie case is their segue into an
argument that certain language in Bennett v. Stutts, 521 S.W.2d 575 (Tenn. 1975), created
an exception to the normal rules of standing if the “case is prima facie meritorious.” Id. at
577. We addressed this very same argument in State ex rel DeSelm v. Owings, 310 S.W.3d
353 (Tenn. Ct. App. 2009). Our analysis in DeSelm bears repeating:
As in the instant case, the suit in Bennett was brought by
“citizens, residents and taxpayers.” Id. at 576. As an aside, we
note, and find interesting, that the Court in Bennett said that the
complaint there was dealing with a “patent public wrong.” Id.
(Emphasis added.) This statement was made without any
equivocation on the part of the High Court. The complaint in
Bennett sought to invalidate the election of an individual to the
position of County Superintendent of Public Instruction because
“the election . . . was conducted by secret ballot in violation of
the entirely mandatory provisions of” the applicable statute. Id.
Again, no equivocation by the High Court on the issue of a
statutory violation. The complaint sought to prevent the new
superintendent “from taking office or performing any of the
duties of office.” Id. On appeal, the Supreme Court held, in
affirming the trial court, that “[t]he suit . . . must fail for
plaintiff’s lack of standing to sue.” Id.
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Early on in the opinion, the Supreme Court stated the “settled
law”:
It is the settled law in this state that private
citizens, as such, cannot maintain an action
complaining of the wrongful acts of public
officials unless such private citizens aver special
interest or a special injury not common to the
public generally.
Id. (citations omitted). The plaintiffs in the instant case
acknowledge that this is a well-established general principle.
However, they strenuously argue that Bennett, later in that
opinion, carves out an exception to this general rule. They rely
upon the following language in Bennett:
We recognize that the requirement that suits in the
nature of a quo warranto and those seeking to
redress public wrongs be brought by the District
Attorney General can create insurmountable
problems. Public spirited citizens should not be
stifled or stopped in their search for solution to
public wrongs and official misconduct such as are
involved in this case.
If the District Attorney General, in matters such
as this, should act arbitrarily or capriciously or
should be guilty of palpable abuse of his
discretion in declining to bring such an action, or
in authorizing its institution, the courts will take
jurisdiction upon the relation of a private citizen,
in the name of the State of Tennessee.
When citizens sue to rectify a public wrong, under
these circumstances, a copy of the complaint shall
be served upon the District Attorney General. It
shall be the duty of the trial court forthwith to
conduct an in limine hearing designed to
determine whether to permit plaintiffs to proceed.
If it be determined that the District Attorney
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General’s refusal to bring the action, or to
authorize the use of his name in its institution,
was improper or unjustified, or that plaintiff’s
case is prima facie meritorious, the trial court
shall permit the action to proceed.
Id. at 577 (citations omitted). The plaintiffs now before us point
out that they served a copy of their complaint on Randall
Nichols, the District Attorney General for Knox County. They
complain that the trial court failed to hold a hearing to determine
whether Attorney General Nichols wrongfully refused and failed
to proceed with this action. They contend that Bennett stands
for the proposition that, if an attorney general, after being
notified of a suit, refuses to bring the action or refuses to
authorize the use of his or her name and if his or her refusal
“was improper or unjustified,” plaintiffs such as those in this
case will be permitted to proceed, regardless of whether the
plaintiffs have standing under the general principle reiterated
in Bennett and quoted by us in this opinion. We disagree with
the plaintiffs’ interpretation.
Bennett’s reference to the district attorney general is simply a
recognition of the unique role of the attorney general in suits of
this nature. Id. However, despite this unique role, Bennett
makes clear that the attorney general cannot “act arbitrarily or
capriciously” or “be guilty of palpable abuse of his discretion in
declining to” pursue or allow such a suit to be pursued in the
attorney general’s name. Id. Bennett does not expressly say
that the failure to act of a recalcitrant attorney general will, ipso
facto, convert a plaintiff, without standing in the traditional
sense, into a plaintiff with standing. In the absence of such an
express holding by the High Court, we conclude that the failure
of an attorney general to act or allow his or her name to be used,
simply means that the attorney general’s preeminent role in this
area will give way to a plaintiff with standing.
We find no error in the trial court’s failure to conduct a hearing
on the “attorney general” issue discussed in Bennett. We say
this because a ruling that General Nichols was improperly
refusing to act or permit others to act in his name would not
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benefit these plaintiffs. The record clearly reflects that the
plaintiffs do not “aver special interest or a special injury not
common to the public generally.” Id. at 576. We do not doubt
that these plaintiffs are “public spirited citizens,” active in the
political and public affairs of the community, “politically
associated persons,” and that they have participated in the filing
of many lawsuits in an effort to remedy and correct what they
perceive to be wrongful and illegal conduct by public officials.
None of this, however, vests them with standing. In the absence
of standing, they cannot proceed with this action.
Id. at 358-59 (emphasis in original). We reject the Plaintiffs’ argument that they have
standing predicated upon the “meritorious” nature of their claims for the reasons stated by
us in DeSelm.
Our holding in DeSelm also disposes of the Plaintiffs’ assertion that they are
proceeding on relation of the state, therefore they do not need standing. We reject that
argument.
Although they did not list it as a separate issue, the Plaintiffs argue that because their
Open Meetings Act claims had merit, as shown by their ability to prevail on one aspect of
their claim, they acquired “pendent” standing for their other claims. The Plaintiffs
acknowledge that no Tennessee case has accepted such a proposition, but argue that it
“derives from a federal practice to accept jurisdiction over state claims that arise out of the
same subject matter as federal claims.” We agree with the Defendants that there is little more
than “imagination” that ties the concept of pendant jurisdiction as employed by the federal
courts, and the requirement of standing as discussed in DeSelm and American Civil Liberties
Union v. Darnell, 195 S.W.3d 612, 619-20 (Tenn. 2006). We will not invent a doctrine of
“pendent” standing to facilitate the Plaintiffs’ claims in this case.
The Plaintiffs make the novel argument, or arguments, that the requirement of
“standing” is simply an invention of the judiciary, and that it violates numerous constitutional
provisions, including, limitations on judicial power found at Tenn. Const. Art. VI §§ 1 and
3; separation of powers found at Tenn. Const. Art II § 2; rights to petition for redress found
at Tenn. Const. Art. I § 23 and the First Amendment to the United States Constitution;
“privileges, liberties and rights” found at Tenn. Const. Art. I §§ 1, 2, 8, 17, 19, and 21; as
well as their rights found in the First and Fourteenth Amendments to the United States
Constitution. The Plaintiffs argue also that the requirement of standing violates the
established public policy of promoting intervention against public wrongdoers. The
Plaintiffs further argue that none of the decisions on standing, including our DeSelm opinion,
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and the Supreme Court’s recent opinion in Fannon v. City of Lafollette, 329 S.W.3d 418,
424 (Tenn. 2010), “considered the [c]onstitutional rights of [the Plaintiffs] asserted in this
appeal pursuant to Tenn. Const. Art. I, §§ 1, 2, 8, 17, 21 and 23 or the First Amendment
Petition Clause.” The Plaintiffs assert that the analysis of a challenge to a court rule is the
same analysis as that for a constitutional challenge of a statute. Presumably, the Plaintiffs
would have us overrule our Supreme Court on the supposition that the High Court completely
ignored both the state and the federal constitution in Fannon and all the cases that preceded
it.
The Defendants are quick to point out that all these constitutional arguments were
formulated and asserted for the first time on appeal. The Plaintiffs did not file a reply brief
so the Defendants’ assertion has not been challenged on this appeal. Nevertheless, we have
not relied solely on the Defendants’ brief. We have reviewed the record in its entirety for any
argument by the Plaintiffs that the requirement of standing constitutes a violation of their
constitutional rights. We found a “fifth” motion to amend the complaint and numerous
motions to alter or amend filed both before and after the final judgment, but we found
nothing that asserts the requirement of standing violates the Plaintiffs’ constitutional rights.
Therefore, we must agree with the Defendants that the Plaintiffs have raised these issues for
the first time on appeal. “It has long been the general rule that questions not raised in the
trial court will not be entertained on appeal and this rule applies to an attempt to make a
constitutional attack upon the validity of a statute for the first time on appeal unless the
statute involved is so obviously unconstitutional on its face as to obviate the necessity for any
discussion.” Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn.1983). We are unwilling
to conclude that the requirement of standing that has been in place for decades if not
centuries and has been repeatedly reaffirmed by our Supreme Court is obviously
unconstitutional. Accordingly, we hold that the trial court did not err in dismissing all
claims, except the Open Meetings Act claims, for lack of standing.
C.
We now turn our attention to the trial court’s holding on summary judgment that the
action taken in the commission meeting held June 23, 2008 did not violate the Open
Meetings Act.2 The Plaintiffs argue that the trial court erred in granting summary judgment
because there were factual disputes in the record. The Plaintiffs go one step further and
assert that their constitutional right to a jury trial provided by Tenn. Const. Art. I , § 6 was
2
For the purposes of this appeal, it is not necessary that we reproduce lengthy excerpts of the Act.
It is enough to say that, in general, the Open Meetings Act requires that governing bodies conduct their
deliberations and make their decisions in public. Tenn. Code Ann. §§ 8-44-101 & -102. The public must
be given notice of the meetings and minutes must be made and kept on file. Id. §§ 103 & 104.
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violated by the trial court in granting summary judgment. Tennessee’s summary judgment
procedure does not offend a litigant’s right to a jury trial. See Hannan v. Alltel Publ. Co.,
270 S.W.3d 1, 17 n.14 (Tenn. 2008) (Koch, J., dissenting); Owen v. Stanley, 739 S.W.2d
782, 786 (Tenn. Ct. App. 1987) (overruled on other grounds by Matlock v. Simpson, 902
S.W.2d 384 (Tenn. 1995)). Thus, our inquiry in this case is simply whether the trial court
erred in finding that the Defendants negated elements of the claims that the rules of
procedure adopted in the meeting of June 23, 2008 were adopted in violation of the Open
Meetings Act.
It is appropriate at this point to briefly review the key principles that control summary
judgment:
Summary judgments are not disfavored procedural devices.
Eskin v. Bartee, 262 S.W.3d 727, 732 (Tenn. 2008); Fruge v.
Doe, 952 S.W.2d 408, 410 (Tenn. 1997). They are proper in
virtually any civil case that can be resolved on legal issues
alone. Eskin v. Bartee, 262 S.W.3d at 732; Lawrence County
Educ. Ass’n v. Lawrence County Bd. of Educ., 244 S.W.3d
302, 309 (Tenn. 2007). Thus, trial courts should grant properly
made and supported summary judgment motions when the
undisputed facts, as well as the inferences reasonably drawn
from the undisputed facts, support only one conclusion – that the
moving party is entitled to a judgment as a matter of law.
Griffis v. Davidson County Metro. Gov’t, 164 S.W.3d 267, 283-
84 (Tenn. 2005); Pero’s Steak & Spaghetti House v. Lee, 90
S.W.3d 614, 620 (Tenn. 2002).
The party seeking the summary judgment has the burden of
demonstrating that no genuine disputes of material fact exist and
that it is entitled to a judgment as a matter of law. Martin v.
Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008); Amos v.
Metro. Gov’t of Nashville & Davidson County, 259 S.W.3d
705, 710 (Tenn. 2008). For facts to be considered at the
summary judgment stage, they must be included in the record,
Tenn. R. Civ. P. 56.03, and they must be admissible in evidence.
Byrd v. Hall, 847 S.W.2d 208, 215-16 (Tenn. 1993); Tenn. R.
Civ. P. 56.06. When ascertaining whether a genuine dispute of
material fact exists in a particular case, the courts must focus on
(1) whether the evidence establishing the facts is admissible, (2)
whether a factual dispute actually exists, and, if a factual dispute
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exists, (3) whether the factual dispute is material to the grounds
of the summary judgment.
Summary judgments are not permitted when a case’s
determinative facts are in dispute. Accordingly, assuming that
the facts are found in the record and that they would be
admissible, the second inquiry is whether a factual dispute
actually exists. If reasonable minds could justifiably reach
different conclusions based on the evidence at hand, then a
genuine question of fact exists. Martin v. Norfolk S. Ry., 271
S.W.3d at 84; Louis Dreyfus Corp. v. Austin Co., 868 S.W.2d
649, 656 (Tenn. Ct. App. 1993). If, on the other hand, the
evidence and the inferences reasonably drawn from the evidence
would permit a reasonable person to reach only one conclusion,
then no material factual dispute exists, and the question can be
disposed of as a matter of law. Godfrey v. Ruiz, 90 S.W.3d 692,
695 (Tenn. 2002); Seavers v. Methodist Med. Ctr. of Oak
Ridge, 9 S.W.3d 86, 91 (Tenn. 1999). A motion for summary
judgment should be denied if there is any doubt regarding
whether a genuine issue of fact exists. Doe 1 ex rel. Doe 1 v.
Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 41
(Tenn. 2005); McCarley v. West Quality Food Serv., 960
S.W.2d 585, 588 (Tenn. 1998) (quoting Byrd v. Hall, 847
S.W.2d at 211).
Not all factual disputes require the denial of a motion for
summary judgment. Many factual disputes are minor or are not
germane to the grounds of the motion. Thus, factual disputes
warrant denial of a motion for summary judgment only when
they are material. Tenn. R. Civ. P. 56.04 (requiring a moving
party to demonstrate that there is no genuine dispute as to any
“material fact”). To be material, a fact must be germane to the
claim or defense on which the summary judgment is predicated.
Eskin v. Bartee, 262 S.W.3d at 732; Luther v. Compton, 5
S.W.3d 635, 639 (Tenn. 1999).
Summary judgments do not benefit from a presumption of
correctness on appeal. Maggart v. Almany Realtors, Inc., 259
S.W.3d 700, 703 (Tenn. 2008); Cumulus Broad., Inc. v. Shim,
226 S.W.3d 366, 373 (Tenn. 2007). Therefore, in each case, the
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reviewing courts must make a fresh determination that the
requirements of Tenn. R. Civ. P. 56 have been satisfied. Eskin
v. Bartee, 262 S.W.3d at 732; Eadie v. Complete Co., 142
S.W.3d 288, 291 (Tenn. 2004); Staples v. CBL Assocs., Inc., 15
S.W.3d 83, 88 (Tenn. 2000). The reviewing courts must also
consider the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in the
non-moving party’s favor. Cumulus Broad., Inc. v. Shim, 226
S.W.3d at 373-74; Abbott v. Blount County, 207 S.W.3d 732,
735 (Tenn. 2006).
Green v. Green, 293 S.W.3d 493, 513-14 (Tenn. 2009)(emphasis added).
The Plaintiffs’ challenge to the grant of summary judgment in this case consists
primarily of 47 consecutive paragraphs stating that they “produced evidence that” certain
facts were true or, alternatively, disputed. Most of these assertions concern actions that
preceded the commission meeting of June 23, 2008, at which the new rules of procedure
were adopted. This argument is closely tied to a later argument that no action at the June 23,
2008 meeting was possible if the meetings that preceded it were in violation of the Open
Meetings Act. We believe the Plaintiffs’ arguments ignore the key principle recited above
that a factual dispute will not defeat a summary judgment if it is rendered immaterial by an
undisputed fact.
The trial court correctly noted that the Plaintiffs alleged, and therefore admitted, that
public notice was given of the meeting held on June 23, 2008. The minutes of that meeting
are in the record and reflect a discussion of the new procedural rules with considerable input
from several of the Plaintiffs. The great majority of the commissioners that attended the June
23 meeting supplied affidavits stating that they did not have any private discussions
concerning the matters on the meeting agenda. The evidence the Plaintiffs offered to counter
those affidavits was proof that the number of telephone calls between the various
commissioners increased near the time of the meeting and testimony that one of the Plaintiffs
heard an exchange between the commissioners before the meeting convened to the effect that
they, the commissioners, were “ready to do this.” The trial court correctly noted that the law
does not prohibit all informal discussions between members of a governing body; it prohibits
using informal discussions, instead of public meetings, as the vehicle for deliberating or
deciding public business. Tenn. Code Ann. § 8-4-102 (c); Neese v. Paris Special School
District, 813 S.W.2d 423, 435 (Tenn. Ct. App. 1990). The trial court concluded that, in light
of the specific denials by almost all of the commissioners, the Plaintiffs’ circumstantial
evidence was just too “general” to support an inference that the commissioners deliberated
or decided public business in their telephone calls or their informal exchanges before the
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meeting. It would take a healthy dose of speculation to turn the reference to being “ready to
do this” or the increase in telephone calls into a conclusion that the commissioners had
already discussed and decided the matters on their agenda before they ever stepped into the
meeting room.
The trial court ultimately concluded
that even if there was [a] violation of the Act prior to the June
23, 2008 meeting of the Board of Commissioners, any such
violation was remedied and cured when the proposed rule
changes were fully discussed and deliberated extensively by the
full Commission at its meeting on June 23, 2008, there being no
evidence of any secret deliberations with respect to that meeting,
while there is affirmative, negating evidence that there were no
secret deliberations with respect to that meeting, that adequate
public notice was given of that meeting, and that minutes of that
meeting were properly kept, recorded and filed . . . .
(Emphasis in original.) The law fully supports the trial court’s conclusion that one violation
of the Open Meetings Act does not “forever . . . bar a governing body from properly ratifying
its decision made in a prior violative manner.” Neese, 813 S.W.2d at 436. The ratification
cannot be by “perfunctory chrystallization” of the earlier violation, but the Act is satisfied
if
the ultimate decision is made in accordance with the Public
Meetings Act and if it is a new and substantial reconsideration
of the issues involved, in which the public is afforded ample
opportunity to know the facts and to be heard with reference to
the matters at issue.
Id. We have reviewed the record and agree with the trial court that the Defendants
conclusively established that, regardless of violations that may or may not have transpired
before the June 23, 2008, meeting of the full commission, the Act was honored with respect
to that meeting. We conclude that violations that allegedly preceded that meeting are not
germane and therefore do not preclude summary judgment. Accordingly, we hold that the
trial court did not err in granting the Defendants summary judgment upholding the actions
taken at the June 23, 2008 meeting.
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V.
The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellants, Arlie “Max Watson, Peggy Marshall, John A Meyers, and Gerra Davis-Mary.
This case is remanded, pursuant to applicable law, for collection of costs assessed by the trial
court.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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