                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                     Assigned on Briefs September 13, 2005 Session

               WILLIAM E. CASTLE v. STATE OF TENNESSEE,
                  DEPARTMENT OF CORRECTION, ET AL.

                      Appeal from the Circuit Court for Morgan County
                        No. 6364C Russell E. Simmons, Jr., Judge

                                    Filed September 27, 2005

                                 No. E2005-00874-COA-R3-CV


This is a personal injury lawsuit filed by William E. Castle (“Plaintiff”), an inmate at the Brushy
Mountain Correctional Complex. As a trustee, Plaintiff was allowed to work as a carpenter for the
defendant State of Tennessee, Department of Correction (the “State”). Rick Cox Construction
Company was a contractor building an addition to the Batley Baptist Church, and Plaintiff and other
inmates assisted with this construction. Plaintiff was injured when he fell from a scaffold while
working at the Batley Baptist Church. Plaintiff bought this negligence claim against the State, Rick
Cox Construction Company, and Batley Baptist Church. The Trial Court granted the State’s motion
to dismiss based on sovereign immunity. The Trial Court later granted motions for summary
judgment filed by the remaining two defendants. Plaintiff appeals, and we affirm.


                   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
                         Circuit Court Affirmed; Case Remanded.


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
SHARON G. LEE, J., joined.

William E. Castle, pro se Appellant.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, and Pamela
S. Lorch, Senior Counsel, Nashville, Tennessee, for the Appellee State of Tennessee, Department
of Correction.

Steve Erdely, IV, Knoxville, Tennessee, for the Appellee Batley Baptist Church.

Charles F. Sterchi, III, and Joseph W. Ballard, Knoxville, Tennessee, for the Appellee Rick Cox
Construction Company.
                                            OPINION

                                           Background

                Plaintiff, an inmate at the Brushy Mountain Correctional Complex in Morgan County,
Tennessee, is proceeding pro se and appeals the dismissal of his lawsuit against the State, Rick Cox
Construction Company (“Rick Cox”), and Batley Baptist Church (collectively “Defendants”).
According to the complaint, while an inmate at Brushy Mountain, Plaintiff was a trustee and worked
as a carpenter for the State earning $68 to $72 per month. Plaintiff claims that while working as a
carpenter in March of 2003, he was ordered to climb a scaffold at the Batley Baptist Church “where
Rick Cox Construction was contracted to construct an addition to the church.” Plaintiff alleges that
Defendants knew or should have known that the scaffolding was in a dangerous or defective
condition and wet due to rain. Plaintiff apparently slipped and fell several feet to the ground and
landed on a concrete slab, resulting in what he claims were severe personal injuries. When Plaintiff
filed the lawsuit, he was represented by attorney Cynthia Fields Davis (“Davis”).

                 The State filed a motion to dismiss claiming the Morgan County Circuit Court was
without subject matter jurisdiction over negligence claims brought against the State because of the
State’s sovereign immunity. In September of 2004, the Trial Court entered an Order granting the
State’s motion to dismiss “on the basis of sovereign immunity from suit and upon the concession
of the [plaintiff’s attorney] to said motion ….”

               In January of 2005, Batley Baptist Church filed its motion for summary judgment.
This motion for summary judgment was based on the Church’s claim that the scaffolding was
brought to the construction site by the guards and prisoners from Brushy Mountain and the guards
were in complete control of the scaffolding. Batley Baptist Church filed the affidavit of Pastor
Luther Kidwell in support of its motion for summary judgment. A Notice of Hearing was filed
informing all counsel of record that a hearing on this motion for summary judgment had been
scheduled for March 16, 2005.

                In February of 2005, Rick Cox filed its motion for summary judgment. According
to this motion and supporting affidavit, the undisputed material facts showed Rick Cox did not owe
a duty of care to Plaintiff. Rick Cox also claimed that Plaintiff was not its employee, that the
scaffolding was brought to the construction site by the prisoners and guards, the scaffolding was
erected by the prisoners, and Rick Cox had no involvement whatsoever with the use of the
scaffolding from which Plaintiff fell. The affidavit of Allan R. “Rick” Cox was filed in support of
this motion. A Notice of Hearing was filed informing all counsel of record that a hearing on this
motion for summary judgment likewise had been scheduled for March 16, 2005.

               The motions for summary judgment were heard on the scheduled date. Neither Davis
nor anyone else appeared on Plaintiff’s behalf. Following the hearing, the Trial Court granted both
motions. After all three Defendants had been dismissed, Plaintiff sent a letter directly to the Trial
Court Judge stating, in relevant part:


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                          For some reason I keep getting notices about a hearing to
                  grant summary judgment. On the Certificate of Service it shows
                  Cynthia Fields Davis as being my attorney; this is incorrect. My
                  attorney’s name is Angela R. Morelock …. Since Ms. Fields Davis
                  has left the case she probably should have filed notice with this very
                  court showing Ms. Morelock as my new attorney. And likewise Ms.
                  Morelock should have filed a notice of attendance with this court. I
                  cannot believe that court was held on March 16, 2005 without notice
                  to Ms. Morelock.

               The Trial Judge responded to Plaintiff’s letter. The Judge’s response was sent to all
counsel of record, which still included Davis. A copy of the response also was sent to Ms. Morelock
even though she had never entered an appearance in the case.1 In relevant part, the Judge’s response
stated:

                          On March 19, 2004, Cynthia Fields Davis, filed your
                  complaint against the three defendants …. Upon proper motion being
                  filed an order was entered September 28, 2004 dismissing the
                  defendant, State of Tennessee. Upon motions being filed and notice
                  being properly given a hearing was held on March 16, 2005, and
                  based upon that hearing the defendant, Rick Cox Construction
                  Company, was dismissed by order filed on March 23, 2005 and the
                  defendant, Batley Baptist Church, was dismissed by order filed on
                  April 6, 2005.

                          Attorney Cynthia Fields Davis has been your attorney of
                  record during this entire time. There is no pleading filed in the court
                  file by which Mrs. Davis asks for permission to withdraw, nor is there
                  any pleading or document showing that Angela R. Morelock has
                  entered an appearance as your attorney of record.

                         This should answer the questions raised by your letter ….
                  Copies of your letter to me are forwarded to all attorneys of record in
                  this case, and also to Attorney Angela R. Morelock who was
                  mentioned in your letter.

                  Plaintiff appeals raising three issues, which we quote:




         1
             Out of an abundance of caution, the Appellate Court Clerk’s Office sent Ms. Morelock notice that Plaintiff
had filed a notice of appeal. Ms. Morelock informed the Appellate Court Clerk that she did not represent Plaintiff either
at the trial court level or on this appeal.

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               I.      Whether the Court allowed ex parte communications which
                       prejudiced the plaintiff.

               II.     Whether the Court had a conflict of interest which assisted the
                       defendants in this cause.

               III.    Whether Summary Judgment was obtained by fraud and in
                       violation of the Tennessee Rules of Civil Procedure.

                                             Discussion

               Because the first two issues raised by Plaintiff do not challenge the sufficiency of the
proof with regard to the summary judgment motions or the State’s motion to dismiss, we will review
these two issues using the typical standard of review involving legal issues. Our review of legal
issues is conducted “under a pure de novo standard of review, according no deference to the
conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County Bd.
Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

                 The first issue is Plaintiff’s claim that the Trial Court allowed ex parte
communications which were prejudicial to Plaintiff. Prior to the motions for summary judgment
being filed, Plaintiff’s attorney attempted to withdraw from the case but the Trial Court would not
allow such withdrawal unless agreed to in writing by Plaintiff. Counsel obtained Plaintiff’s signature
on an order of withdrawal and the order allegedly was sent to the Trial Court, but it never was
received. A couple of months later when the hearing on the motions for summary judgment was
held, Davis did not appear on Plaintiff’s behalf, presumably because she believed the order allowing
her withdrawal from the case had been entered by the Trial Court. The Trial Court, on the other
hand, had not received the order and as far as the Trial Court was concerned, and correctly so, Davis
was still Plaintiff’s attorney of record. In any event, Plaintiff argues that because he was or believed
he was unrepresented at the time of the hearing and no one was present on his behalf, the motions
“could not have been granted without ex parte communication between the trial court and these two
defendants.” In making this argument, Plaintiff relies on Rule 10, Canon 3(B)(7) of the Code of
Judicial Conduct which states, in relevant part, as follows:

               A judge shall accord to every person who has a legal interest in a
               proceeding, or that person's lawyer, the right to be heard according to
               law. A judge shall not initiate, permit, or consider ex parte
               communications, or consider other communications made to the
               judge outside the presence of the parties concerning a pending or
               impending proceeding ….

                Looking at matters from the Trial Court’s perspective: (1) there were two properly
supported motions for summary judgment that had been filed; (2) Plaintiff’s counsel had received
notices stating when the motions would be heard by the Trial Court; (3) Plaintiff had time to respond


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to the motions because they were served “at least thirty (30) days before the time fixed for the
hearing,” as required by Tenn. R. Civ. P. 56.04; (4) at the time of the hearing, Davis was still
Plaintiff’s attorney of record; and (5) no responses had been filed to the motions for summary
judgment. Based on these facts, we do not believe the Trial Court in any way ran afoul of the Code
of Judicial Conduct by allowing the hearing to proceed. Cf. Moore v. Moore, No. 01-A-01-9210-
CH-00389, 1993 Tenn. App. LEXIS 175, at **12, 13 (Tenn. Ct. App. Mar. 3, 1993) (Interpreting
a previous version of the Code of Judicial Conduct and stating “[i]n the context of the cited rule, ex
parte means without adequate notice to all parties and opportunity of all parties to respond.”).

                The next issue is Plaintiff’s claim that the Trial Judge had a conflict of interest and
should have recused himself from the case. According to Plaintiff, the “first conflict of interest
relates to Rick Cox Construction Company, Inc. in that they did some work on the Morgan County
Courthouse. The second conflict of interest involves the Tennessee Department of Correction in that
they provide free labor for both Rick Cox Construction Company, Inc. and the Morgan County
Courthouse.”

                While we seriously doubt whether the foregoing would create a conflict of interest,
much less one warranting recusal, we need not decide this issue because there is nothing in the
record indicating that Plaintiff raised this as an issue below or otherwise brought the alleged conflict
to the Trial Court’s attention. We will consider this issue waived because it was raised for the first
time on appeal. See Wright v. Pate, 117 S.W.3d 774, 777 (Tenn. Ct. App. 2002)(“This Court has
held that motions to recuse ‘must be filed promptly after the facts forming the basis for the motion
become known ... and the failure to seek recusal in a timely manner results in a waiver of a party's
right to question a judge's impartiality.’")(quoting Davis v. Dept. of Employment Security, 23 S.W.3d
304, 313 (Tenn. Ct. App. 1999)); See generally Heatherly v. Merrimack Mutual Fire Ins. Co., 43
S.W.3d 911, 916 (Tenn. Ct. App. 2000) ("As a general matter, appellate courts will decline to
consider issues raised for the first time on appeal that were not raised and considered in the trial
court.").

                Plaintiff’s third issue is his claim that Defendants Rick Cox and Batley Baptist
Church obtained summary judgment “by fraud.” According to Plaintiff, because he was no longer
represented after he signed the order allowing his attorney to withdraw, “[a]t that point any
representation by Attorney Davis on behalf of the plaintiff would have constituted fraud.” Plaintiff
further claims that the Trial Court, Rick Cox, and Batley Baptist Church knew he was unrepresented,
and to “obtain Summary Judgment as a result of ex parte communications and/or without proper
representation is a fraud.” Once again, we emphasize that no order had been entered allowing Davis
to withdraw from the case and because Plaintiff still had an attorney of record, this argument is
without merit.2



         2
            Plaintiff also argues that this alleged fraud entitles him to relief under Tenn. R. Civ. P. 60.02. Like the conflict
of interest issue, this issue never was raised at the trial court level and is deemed waived. Even if it was not waived,
having found no fraud, Plaintiff would not be entitled to relief under Rule 60.02 on this basis.

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                Plaintiff filed two reply briefs in this appeal. In both reply briefs, Plaintiff raises
altogether new issues not addressed in his initial brief or in Defendants’ briefs. We will not consider
an issue raised for the first time in a reply brief as an issue that has been raised properly on appeal.
The reason for this is simple: to allow appellants to use such a procedure would leave appellees with
no opportunity to file any response to such new issues. Having said that, in one of the reply briefs
Plaintiff does challenge the propriety of the grant of summary judgment to Rick Cox and Batley
Baptist Church, and because this issue was touched upon in Plaintiff’s original brief, we will now
examine this issue in more detail.

              In Blair v. West Town Mall, our Supreme Court recently reiterated the standards
applicable when appellate courts are reviewing a motion for summary judgment. Blair v. West Town
Mall, 130 S.W.3d 761 (Tenn. 2004). In Blair, the Court stated:

                      The standards governing an appellate court’s review of a
               motion for summary judgment are well settled. Since our inquiry
               involves purely a question of law, no presumption of correctness
               attaches to the lower court’s judgment, and our task is confined to
               reviewing the record to determine whether the requirements of
               Tennessee Rule of Civil Procedure 56 have been met. See Staples v.
               CBL & Assoc., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); Hunter v.
               Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Cowden v. Sovran
               Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991). Tennessee
               Rule of Civil Procedure 56.04 provides that summary judgment is
               appropriate where: 1) there is no genuine issue with regard to the
               material facts relevant to the claim or defense contained in the
               motion, and 2) the moving party is entitled to a judgment as a matter
               of law on the undisputed facts. Staples, 15 S.W.3d at 88.

                                               ***

                       When the party seeking summary judgment makes a properly
                       supported motion, the burden shifts to the nonmoving party
                       to set forth specific facts establishing the existence of
                       disputed, material facts which must be resolved by the trier of
                       fact.

                                 To properly support its motion, the moving party must
                       either affirmatively negate an essential element of the
                       non-moving party’s claim or conclusively establish an
                       affirmative defense. If the moving party fails to negate a
                       claimed basis for the suit, the non-moving party’s burden to
                       produce evidence establishing the existence of a genuine issue
                       for trial is not triggered and the motion for summary judgment


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                        must fail. If the moving party successfully negates a claimed
                        basis for the action, the non-moving party may not simply rest
                        upon the pleadings, but must offer proof to establish the
                        existence of the essential elements of the claim.

Blair, 130 S.W.3d at 763-64, 767 (quoting Staples, 15 S.W.3d at 88-89).

              Our Supreme Court also has provided instruction regarding assessing the evidence
when dealing with a motion for summary judgment, stating:

                        The standards governing the assessment of evidence in the
                summary judgment context are also well established. Courts must
                view the evidence in the light most favorable to the nonmoving party
                and must also draw all reasonable inferences in the nonmoving
                party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
                Hall, 847 S.W.2d at 210-11. Courts should grant a summary
                judgment only when both the facts and the inferences to be drawn
                from the facts permit a reasonable person to reach only one
                conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
                1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).

                 The motions for summary judgment filed by Rick Cox and Batley Baptist Church
were properly supported. Therefore, the burden 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


                                                  -7-
                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.




                                                        ___________________________________
                                                        D. MICHAEL SWINEY, JUDGE




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