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Castle v. State9/27/2005
den shifted to Plaintiff to set forth facts establishing the existence of disputed, material facts. Plaintiff did not meet this burden given that absolutely no responses were filed. With Plaintiff having failed to establish the existence of a disputed material fact, the Trial Court properly granted summary judgment to Rick Cox and Batley Baptist Church as each entity was entitled to a judgment as a matter of law given the undisputed material facts.
Another issue not set out in Plaintiff's statement of the issues but touched upon in his initial brief surrounds the granting of the State's motion to dismiss based on sovereign immunity. Our standard of review as to the granting of a motion to dismiss is set out in Stein v. Davidson Hotel Co., 945 S.W.2d 714 (Tenn. 1997). In Stein, our Supreme Court explained:
A Rule 12.02(6), Tenn. R. Civ. P., motion to dismiss for failure to state a claim upon which relief can be granted tests only the legal sufficiency of the complaint, not the strength of a plaintiff's proof. Such a motion admits the truth of all relevant and material averments contained in the complaint, but asserts that such facts do not constitute a cause of action. In considering a motion to dismiss, courts should construe the complaint liberally in favor of the plaintiff, taking all allegations of fact as true, and deny the motion unless it appears that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Cook v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). In considering this appeal from the trial court's grant of the defendant's motion to dismiss, we take all allegations of fact in the plaintiff's complaint as true, and review the lower court's legal conclusions de novo with no presumption of correctness. Tenn. R. App. P. 13(d); Owens v. Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996); Cook, supra.
Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997).
Plaintiff essentially claims that this is not an appropriate a case to apply the doctrine of sovereign immunity because to do so would result in an unfair result. Not surprisingly, Plaintiff cites us to no cases which support this position. Sovereign immunity of the State cannot be waived at the discretion of this Court. At the time of the hearing on the State's motion to dismiss, Plaintiff was represented by counsel who conceded that the State was immune and that this action was pending in the wrong forum. We, therefore, affirm the Trial Court's granting of the State's motion to dismiss.
The last matter that must be addressed is Plaintiff's motion to consider post-judgment facts contained in the middle of one of his reply briefs. In relevant part, Tenn. R. App. P. 14(a) provides that on motion, we may "consider facts concerning the action that occurred after judgment. Consideration of such facts lies in the discretion of the appellate court." Because the underlying "facts" which Plaintiff asks us to consider did not occur after the judgment, and in the exercise of our discretion, Plaintiff's motion is denied.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Court for collection of the costs below. Costs on appeal are assessed against the Appellant William E. Castle.
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