                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                        August 5, 2003 Session

                ALEXANDER C. WELLS v. JAMES HEFNER, ET AL.

                    Direct Appeal from the Circuit Court for Davidson County
                             No. 99C-2278    Barbara Haynes, Judge



                     No. M2002-02502-COA-R3-CV - Filed September 5, 2003


Plaintiff filed a cause of action against several state employees for malicious prosecution. The trial
court dismissed the action for lack of subject matter jurisdiction. We reverse.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY, J., joined.

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Alexander C. Wells.

Paul G. Summers, Attorney General and Reporter and Leslie Ann Bridges, Senior Counsel, for the
appellees, James Hefner, Timothy Quain and Dean Roberts.

                                      MEMORANDUM OPINION1

        Alexander C. Wells (Mr. Wells) filed a cause of action in the Circuit Court of Davidson
County alleging malicious prosecution. Defendants are employees of Tennessee State
University, a governmental entity pursuant to the Governmental Tort Liability Act (“GTLA”).
Tenn. Code Ann. § 29-20-102(3)(2000). The trial court awarded defendants summary judgment
on the grounds that 1) they acted within the scope of their official capacities and are entitled to
absolute immunity under Tenn. Code Ann. § 9-8-307(h) and 2) the suit was one against the state
and is therefore barred by sovereign immunity. We reverse.



        1
          RULE 10. MEMORANDUM OPINION. This C ourt, with the concurrence of all judges participating in
the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it shall be designated
"MEMORANDUM OPINION", shall not be published, and shall not be cited or relied on for any reason in any unrelated
case.
       The Tennessee Code provides:

       State officers and employees are absolutely immune from liability for acts or
       omissions within the scope of the officer’s or employee’s office or employment,
       except for willful, malicious, or criminal acts or omissions or for acts or
       omissions done for personal gain.

Tenn. Code Ann. § 9-8-307(h)(Supp. 2002)(emphasis added). State employees, therefore, are not
immune from causes of action alleging malicious acts. Mr. Wells’ claim is for malicious
prosecution. Without opining on whether Mr. Wells will succeed in demonstrating malice,
defendants are not immune from this claim.

        As noted by the trial court, a claim against a state employee in his official capacity
constitutes an action against the state. Cox v. State, 399 S.W.2d 766, 778 (Tenn. 1965)(emphasis
added). The State is immune from suit except as the legislature has provided to the contrary.
Shell v. State, 893 SW2d 416, 420 (Tenn. 1995). We disagree with the trial court, however, that
Mr. Wells’ claim is a claim against defendants in their official capacities and, therefore, against
the State. In Cox, supra, plaintiff brought an action against “[The] State of Tennessee, Donald
M. McSween, Commissioner of Commerce and Conservation of Tennessee.” Cox, 399 S.W.2d
766. Mr. Wells’ complaint, on its face, is clearly not against the State or defendants in their
official capacities. Mr. Wells does not name the State in his complaint, nor does he seek
damages from the State. He names the defendants individually, and not in their official
capacities.

       Mr. Wells’ action is one against defendants individually, and it is one from which
defendants are not immune. We accordingly reverse the order of the trial court awarding
summary judgment to defendants on the basis of jurisdiction and remand for further proceedings.
Costs of this appeal are taxed to the appellees, James Hefner, Timothy Quain, and Dean Roberts.



                                                      ___________________________________
                                                      DAVID R. FARMER, JUDGE




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