1 Court of Appeals Rule 10(b): The Court, w ith the concu rrence of all judges parti cipati ng in t he case, may affirm, rev erse o r mo dify the act ions of t

he t ria l cou rt bymemorandu m opini on when a for mal opi nion woul d h ave no preceden tial

value. When a case is decided by memo randum opinion it shallbe design ate d “MEMORANDU M OPIN IO N,” shall not be published, and shall not be cited or relied on for any reaso n in a sub sequ ent unre lated c ase. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Septem ber 5, 2003 Session STEVE W. ROGERS v. STATE OF TEN NESSEE Appeal from the Tennessee Claims Comm ission No. 20300029

No. M2003-00215-COA-R3-CV - Filed Septem ber 18, 2003

Plaintiff appealsdismissal b y the Tenne ssee Claims Commissi on of his claim against the State of Tennessee resulting from an alleged assa ult and bat teryby a

Tenness ee State

Trooper in the State Capital Building . The Claims Commission dis missed the c laim for lack of subject matter jurisdiction, and we affirm the action of the Claims Commission. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Tennessee Claims Commission Affirmed
W IL LI AM B. C AIN , J., delivered the opinion of the court, in which W IL LI AM C. K OCH , J R ., P.J., M.S., and P ATRIC IA J. C OTT RELL , J., joined. Phillip L . Davidso n, Nashvi lle, Tennessee, f or the ap pellant, Steve W. Rog ers. Paul G. Summ

ers, Attorney Gene

ral & Reporter; Michael

E. Moore, Solicitor General, and Dawn Jordan, Assistant Attorney Genera l, for the appellee, State of Tennessee. MEMORAN

DUM OP

INION 1
Steven Rogers was part of a gr oup of citizens gat

he red at the Tennessee State Capital Building on July 12, 2001, to protest a possible enactment by the G ene ral Asse

mbly of a state income tax. He alleges in his complaint before the Claims Commission that he was told he could watch the sena

te debat e from the

balcony but mistake

nly went to the

wrong b alc ony. A s he proceeded

down the stairs from the balcony , he al leged t hat he wa s assaulted by

one Har old Goodi ng, a Tennessee State Trooper. He asserts that Gooding grabbed him by the throat and pushed-2-

him back unti l he fell to the floor whereupon Gooding drag ged him across the floor to an exit. He se ek s $ 30 0, 00 0 i n c om pe ns at or y da ma ge s f or as sa ul t a nd ba tt er y. On October 15, 2002, Defendant filed a Tenne ssee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a claim upon which relief could be granted. This moti on to dismisswas basedupon the assertion that the Claims Com mission lacked subject matter jurisdiction under Tennessee Code Annotated section 9-8-307. By Order entered December

16, 2002, the Claims Commission granted Defendant’s Motion to Di smis s hol ding:

This Commission does not have jurisdiction to consider intentional torts such as assault a

nd batter y; th e claima nt has not s hown a ny gr ounds, statutory or otherwise, for asse

rting su ch jurisd

iction. Th

e State is not legally r

esponsible for the intentional torts of it s office rs. This claimant can sue the officer in question for such an alleged tort, and has done so.
On appeal, Rogers asserts that the State is estopped to assert lac k of subject matter jurisdiction in the Claims Commission . He base s this assertion on actions taken by Serge ant Haro ld Gooding in defense of a federal cour t action filed ag ainst him relative to the same July 12, 2001 incident. Under Te nn es se e C on st it ut io n a rt ic le I, s ec ti on 17 , s ui ts ma y o n ly be broug ht against the Stateof Tennessee in such manner and in such courts as the legislaturemay by

law direct. Statutes passedpermittin g suits a

gainst t he State a re in der ogation of sover eign immu

nity and must be

strictly construed. Beare v. Olson , 711 S.W.2d 603 (Tenn.1986). S uits i n the Claims Commission for assault and battery a

re not among the clai ms permit ted against the State by

Tennessee Code Annotated section 9-8-307. Aside from the fact that the State of Tennessee was not a party to the fe deral court action, it is long settledthat subject matter jurisdiction cannot be conferred upon a tribuna l by any action of the pa rt ie s. Co ns en t o f t he pa rt ie s i s i ne ff ec ti ve , a nd do ct ri ne s o f w ai ve r a nd es to pp el do no t a pp ly. The conc e pt of subject matter jurisdict ion involve s a court ’s power to adjudica te a particular ty

pe of controversy

. See Meighan v. U .S. Sprint Communications Co. , 924 S.W.2d 63 2, 639 (Te nn.1996) ; Turpin v. Co nner Bros

. Excavating Co. , 761 S.W.2d 296, 297 (Tenn.1988). Courts derive the ir subjec t matter juris dicti on fro m the C onst itut ion o f Tenn essee o r from legi slati ve act, see Kane v. Kane , 547 S.W.2d 559, 560 (Tenn.1977); Brown v. B rown , 198 Tenn. 600, 618-19, 281 S.W.2d 492, 501 (1955), and cannot exercise jurisdictional powers that have notbeen conferred directly on them expressly or by

necessary

implication. See Hicks v. Hicks , No. 01A01-9309-CH-00417, 1994 WL 1 08896, at *2 (Tenn.Ct.App.Mar.30, 1994) (No Tenn.R.App.P. 11 application filed).-3- A court’s subject matter jurisdiction in a particular circumstance de pends on the nature of the cause of action and the re lief sou ght. Se e Landers v. Jones , 872 S.W.2d 674, 675 (Tenn.1994). It does not depend on the conduct or agreement of the parties, see Shel

by County v. City of M

emphis , 211 Tenn. 410, 413, 365 S.W.2d 291, 292 (1963); James v. Kennedy , 174 Tenn. 591, 595, 129 S.W.2d 215, 216 (1939), and thus the parties cannot confer subject matter jurisdiction on a tria l o r an appe

llate court by appe arance, plea, consent, silence, or w aiver. See Caton v. Pic-W alsh Freight Co. , 211 Tenn. 334, 338, 364 S.W.2d 931, 933 (1963); Brown v. Brown , 198 Tenn. at 618-19, 281 S.W.2d at 501. Judgmentsor orders entered by courts without subject matter jurisdiction are void, see Brown

v. Brown , 198 Tenn. at 610, 281 S.W.2d at 497; Riden v. Snider , 832 S.W.2d 341, 343 ( Tenn.Ct.A pp.1991) ; Scales v. Wins to n , 760 S.W.2d 952, 953 (Tenn.Ct.App.1988). The lack of subject ma

tter juri sdiction isso fundamental that it requires dismissal whenever it is raised an d demonstrated. See Tenn.R.Ci v.P. 12 .08. Thus, when an appellate court determines that a trial c ourt lacked subject matter jurisdict ion, it must v acate t

he ju dgment

and dismiss the case without reaching the merits of the appeal. See J.W. Kelly & Co. v. Conner , 122 Tenn. 339, 397, 123 S.W. 622, 637 (1909). Dishmon v. Shelby State Community College , 15 S.W.3d 477, 480 (Tenn.Ct.App.1999). The judgment of the

trial cou rt is aff irmed, a nd costs a re asse ssed to Ap

pellant.

___________________________________ WILL IAM B. CAI

N, JUDGE