                                                                                        11/22/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               October 4, 2017 Session

           EDWARD RONNY ARNOLD V. BOB OGLESBY, ET AL.

                Appeal from the Circuit Court for Davidson County
                   No. 17C133      Thomas W. Brothers, Judge


                            No. M2017-00808-COA-R3-CV


A former state employee filed suit claiming that he should have been paid for the state
holiday on November 27, 2015, because he worked on October 12, 2015, the day from
which the holiday was shifted pursuant to Tenn. Code Ann. § 4-4-105(a)(3). His position
was terminated before the November 27, 2015 holiday occurred. The general sessions
and circuit courts granted the Department of General Services Commissioner’s motion to
dismiss based on sovereign immunity. We reverse.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

Edward Ronny Arnold, Nashville, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter, Andrée Blumstein, Solicitor
General, and Taylor William Jenkins, Assistant Attorney General, Nashville, Tennessee,
for the appellee, Bob Oglesby.

                                       OPINION

       The manner in which this court must consider the facts of this case is governed by
the standard of review. Our Supreme Court has explained that:

             A motion to dismiss for lack of subject matter jurisdiction falls
      within the purview of Tenn. R. Civ. P. 12.02(1). Challenges to a court’s
      subject matter jurisdiction call into question the court’s “lawful authority to
      adjudicate a controversy brought before it,” Northland Ins. Co. v. State, 33
      S.W.3d 727, 729 (Tenn. 2000), and, therefore, should be viewed as a
      threshold inquiry. Schmidt v. Catholic Diocese of Biloxi, 2008-CA-00416-
       SCT (¶ 13), 18 So.3d 814, 821 (Miss. 2009). Whenever subject matter
       jurisdiction is challenged, the burden is on the plaintiff to demonstrate that
       the court has jurisdiction to adjudicate the claim. See Staats v. McKinnon,
       206 S.W.3d 532, 543 (Tenn. Ct. App. 2006); 1 Lawrence A. Pivnick,
       TENNESSEE CIRCUIT COURT PRACTICE § 3:2 (2011 ed.) (“Pivnick”).

              Litigants may take issue with a court’s subject matter jurisdiction
       using either a facial challenge or a factual challenge. See, e.g., Schutte v.
       Johnson, 337 S.W.3d 767, 769-70 (Tenn. Ct. App. 2010); Staats v.
       McKinnon, 206 S.W.3d at 542. A facial challenge is a challenge to the
       complaint itself. See Schutte v. Johnson, 337 S.W.3d at 769. Thus, when a
       defendant asserts a facial challenge to a court’s subject matter jurisdiction,
       the factual allegations in the plaintiff’s complaint are presumed to be true.
       See, e.g., Staats v. McKinnon, 206 S.W.3d at 542-43.

              Alternatively, “[a] factual challenge denies that the court actually
       has subject matter jurisdiction as a matter of fact even though the complaint
       alleges facts tending to show jurisdiction.” Staats v. McKinnon, 206 S.W.3d
       at 543. Thus, the factual challenge “attacks the facts serving as the basis for
       jurisdiction.” Schutte v. Johnson, 337 S.W.3d at 770.

Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 445-46 (Tenn.
2012) (footnotes omitted). “‘Since a determination of whether subject matter jurisdiction
exists is a question of law, our standard of review is de novo, without a presumption of
correctness.’” Chapman v. DaVita, Inc., 380 S.W.3d 710, 712-13 (Tenn. 2012) (quoting
Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000)).

       In the motion to dismiss for lack of subject matter jurisdiction filed in the circuit
court by the defendant, Department of General Services Commissioner Bob Oglesby,
there is no challenge as to Mr. Arnold’s factual assertions in the complaint. Rather, the
Commissioner chose to rely on sovereign immunity. We consider this a facial challenge
to subject matter jurisdiction and, therefore, the factual allegations in Mr. Arnold’s
complaint are taken as true. In addition, in a facial attack, the court must construe the
factual allegations in the light most favorable to the nonmoving party, Mr. Arnold.
Anderson v. Watchtower Bible & Tract Soc. of N.Y., Inc., No. M2004-01066-COA-R9-
CV, 2007 WL 161035, at *2 (Tenn. Ct. App. Jan. 19, 2007).

      Mr. Arnold’s complaint was filed in Davidson County General Sessions Court.
Consequently, it is rather sparse, but to the point:

       Failure to comply with T.C.A. 4-4-105(a)(1), pay wages for the Federal and
       State Holiday of Columbus Day, Plaintiff required to work October 12,


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       2015 terminated November 24, 2015 but not paid for holiday on November
       27, 2015.

       Defendant representatives failed to respond to requests for payment.1

After the Commissioner’s motion to dismiss was granted, Mr. Arnold appealed to the
circuit court. There, the Commissioner filed another motion to dismiss, which was
granted. Mr. Arnold appealed.

       Mr. Arnold represents himself in this litigation.

       Pro se litigants should not be permitted to shift the burden of the litigation
       to the courts or to their adversaries. They are, however, entitled to at least
       the same liberality of construction of their pleadings that Tenn. R. Civ. P. 7,
       8.05, and 8.06 provide to other litigants. Even though the courts cannot
       create claims or defenses for pro se litigants where none exist, they should
       give effect to the substance, rather than the form or terminology, of a pro se
       litigant’s papers.

Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003) (citations omitted).

      The Commissioner’s written argument on appeal, like his motions to dismiss in
the general sessions and circuit courts below, is brief. It rests on the state’s sovereign
immunity, found in Article I, Section 17 of the Tennessee Constitution and codified in
Tenn. Code Ann. § 20-13-102(a), which states:

       No court in the state shall have any power, jurisdiction or authority to
       entertain any suit against the state, or against any officer of the state acting
       by authority of the state, with a view to reach the state, its treasury, funds or
       property, and all such suits shall be dismissed as to the state or such
       officers, on motion, plea or demurrer of the law officer of the state, or
       counsel employed for the state.

       As we noted earlier, the burden is on the plaintiff, Mr. Arnold, to demonstrate that
the court has jurisdiction to adjudicate the claim. We must give effect to the substance of
Mr. Arnold’s complaint, rather than the form or terminology. Young, 130 S.W.3d at 63.
As we see it, Mr. Arnold’s complaint is as follows: Tenn. Code Ann. § 4-4-105(a)(1)
requires each department to be open for business each day except Saturdays, Sundays, and
legal holidays. Columbus Day is a legal holiday. Tenn. Code Ann. § 15-1-101. Pursuant

1
 It occurs to this court that had the Commissioner’s representatives or legal counsel responded to Mr.
Arnold and explained why he was not paid for the November 27, 2015 holiday in question, this law suit
might have been avoided.
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to Tenn. Code Ann. § 4-4-105(a)(3), in 2015 the governor substituted “the Friday after the
fourth Thursday in November, which is Thanksgiving Day, for the legal holiday that
occurs on the second Monday in October, which is Columbus Day, for purposes of closing
state offices only.” Thus, Mr. Arnold worked on Columbus Day, October 12, 2015. His
job, however, was terminated as of November 24, 2015. Mr. Arnold maintains that he was
not, but should have been, paid for the day of November 27, 2015, compensation which he
allegedly earned by working October 12, 2015.

        We must ask ourselves whether the factual allegations in Mr. Arnold’s complaint,2
taken as true, can support jurisdiction. If so, we must deny the motion to dismiss. The
statute relied upon by the state, Tenn. Code Ann. § 20-13-102(a), envisions three criteria
that must be met for sovereign immunity to apply. First, the action must be a suit against
the state or an officer of the state. Mr. Arnold basically admits this fact in the general
sessions court warrant which identifies the defendant as “Bob Oglesby, Commissioner
Dept. of General Services.”

        Second, the officer must be “acting by authority of the state.” The Commissioner
states that Mr. Arnold “has not alleged any facts that prove Defendant acted outside the
authority of the State.” Mr. Arnold has alleged in his complaint that he should have been
paid for another day but was not. Viewed in the light most favorable to Mr. Arnold, this
constitutes an allegation that the Commissioner was not “acting by authority of the state”
by failing to pay Mr. Arnold his full wages.3 The Commissioner maintains that he was
“acting by authority of the state” in that “he was fulfilling his duties as Commissioner by
making a payroll decision.” However, he points this court to no statute or rule in support
of his assertion. When asked by this court to point to a statute authorizing the
Commissioner to pay state employees, the Commissioner’s legal counsel was unable to
do so. This question is relevant not only to whether the Commissioner was acting
pursuant to authority, but also as to whether there might be a waiver of sovereign
immunity. Viewed in the light most favorable to Mr. Arnold, the complaint alleges facts
that indicate the second requirement of the statute was not met.                 Thus, the
Commissioner’s argument under Tenn. Code Ann. § 20-13-102(a) fails, as does the
motion to dismiss.




2
 A facial challenge “asserts that the complaint, considered from top to bottom, fails to allege facts that
show that the court has power to hear the case.” Wilson v. Sentence Info. Servs., No. M1998-00939-
COA-R3-CV, 2001 WL 422966, at *4, n. 5 (Tenn. Ct. App. Apr. 26, 2001).
3
 While it is implicit in Mr. Arnold’s complaint, we also take judicial notice of the fact that state
employees such as Mr. Arnold are paid for the days they work and for legal holidays. See T ENN. R. EVID.
201(b).
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      The judgment of the trial court is reversed, and this matter is remanded for further
proceedings consistent with this opinion. Costs of appeal are assessed against the
Commissioner of the Department of General Services.


                                                 ________________________________
                                                 ANDY D. BENNETT, JUDGE




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