Session October 4, 2017
from the Circuit Court for Davidson County No. 17C133 Thomas
W. Brothers, Judge No. M2017-00808-COA-R3-CV
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
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.
D. Bennett, J., delivered the opinion of the Court, in which
Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins,
D. BENNETT, JUDGE.
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)).
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