IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

ASSIGNED ON BRIEFS SEPTEMBER 2, 2008

TENNESSEE REALTY DEVELOPMENT, INC. v. STATE OF

TENNESSEE (DEPARTMENT OF TRANSPORTATION) and AMERICAN

TELEPHONE AND TELEGRAPH (AT&T)

Direct Appeal from the Chancery Court for Henry County

No. 20624 Ron E. Harmon, Chancellor

No. W2008-00722-COA-R3-CV - Filed December 29, 2008

In this appeal, we are asked to determine whether the chancery court erred in failing to allow

Appellant to proceed with discovery after the State of Tennessee filed its Motion to Dismiss, in

dismissing Appellant’s Complaint and Amended Complaint based solely on argument, without any

proof by testimony or documentation, and in dismissing Appellant’s Complaint and Amended

Complaint in regards to BellSouth which did not file a motion to dismiss or present evidence or

documentation prior to the court’s dismissal. On appeal, Appellant contends that it was entitled to

proceed with discovery before the court ruled on the State’s motions. Likewise, Appellant argues

that the State should have been required to prove ownership of an easement right of way over

Appellant’s property. Finally, Appellant contends that because BellSouth filed only a Notice of

Appearance, Appellant’s claim against BellSouth should not have been dismissed. We affirm the

trial court’s dismissal. 

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

ALAN E.HIGHERS, P.J.,W.S., delivered the opinion of the court, in which DAVID R.FARMER,J., and

HOLLY M. KIRBY, J., joined.

W. Brown Hawley, II, Paris, TN, for Appellant

T. Leigh Jones, Senior Counsel, Office of the Attorney General, Jackson, TN, for Appellee State of

Tennessee

Louis F. Allen, Amy Ferguson Dudek, Memphis,TN, for Appellee BellSouth Telecommunications,

Inc., incorrectly sued as American Telephone and Telegraph (AT&T)

OPINION
 According to BellSouth’s appellate brief, Appellant’s Complaint and Amended Complaint incorrectly sued 1

American Telephone & Telegraph (AT&T), which is actually named BellSouth Telecommunications, Inc.

(“BellSouth”). 

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I. FACTS & PROCEDURAL HISTORY

According to the brief of American Telephone and Telegraph (hereinafter “BellSouth” or

“Appellee”), on November 14, 2006, a service outage was reported at the post office in Springville, 1

Tennessee. A BellSouth technician, who was dispatched to investigate the outage, determined that

service was lost when BellSouth’s telephone cable, which was located in the State of Tennessee’s

right of way, “was augured into by someone digging post holes for a fence.” That fence, according

to BellSouth, was being constructed by Tennessee Realty Development, Inc. (“Appellant” or

“Tennessee Realty”), whose primary owner is James Hobbs (“Mr. Hobbs”). 

In December 2006, BellSouth contacted William Hazlerig, the Director of Maintenance for

the Tennessee Department of Transportation (“State”), to advise him of the seeming encroachment

on the State’s right of way byTennessee Realty. The State commenced an investigation, and verified

that Tennessee Realty’s fence had been built on the State’s right of way. By a letter dated December

15, 2006, Mr. Hazlerig notified Mr. Hobbs that Tennessee Realty’s fence was located within the

State’s right of way and must be removed within ten days or the State would remove the fence,

pursuant to Tennessee Code Annotated section 54-5-136. This letter cited a specific map and parcel

number as well as highway plans and deeds that supported the State’s ownership of the easement.

The State’s brief states that, on February 26, 2007, Mr. Hazlerig received a letter from Tennessee

Realty’s counsel claiming that the State had abandoned its rights of way easement and noting that

other tracts had erected fences on the right of way. According to its Memorandum in Support of

Motion to Dismiss, the State, between February and June 2007, identified those other tracts with

encroachments, and notified the respective owners of the required removal pursuant to Tennessee

Code Annotated section 54-5-136. Again, by a letter dated June 21, 2007, the State notified

Tennessee Realty of its encroachment and further stated that, after reviewing Tennessee Realty’s

legal position, it found that Tennessee Realty was not absolved from moving the fence. A final

notice was sent to Tennessee Realty on August 8, 2007, allowing five additional days from the date

of receipt before the State would remove Tennessee Realty’s fence at Tennessee Realty’s expense.

Tennessee Realty did not remove its fence from the State’s alleged right of way, but instead

filed a Complaint in the Henry County Chancery Court on August 27, 2007. The action sought “a

Declaratory Judgment as to the rights and interests of the[] parties [in the subject property] . . . [and]

a Permanent Injunction restricting [the State’s and BellSouth’s] future rights to interfere with

[Tennessee Realty’s] future use of the land, and for a judgment awarding [Tennessee Realty’s]

damages, rents and attorney’sfees.” Tennessee Realty’s Complaint essentially alleged three issues:

(1) the State had abandoned its right of way easement; (2) BellSouth was not entitled to use the right

of way; and (3) the State selectively exercised its right to remove encroachments by forcing only

Tennessee Realty and no others to remove the claimed encroachment. 
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On October 12, 2007, the State filed a Motion to Dismiss, pursuant to Tennessee Rule of

Civil Procedure 12.02, claiming that, under the doctrine of sovereign immunity, Tennessee Realty’s

action was barred, and, further, that Tennessee Realty had failed to state a claim upon which relief

could be granted. Subsequently, Tennessee Realty filed an Amended Complaint on November 6,

2007, alleging inverse condemnation for which compensation must be paid, as an additional cause

of action, under Tennessee Code Annotated section 29-16-123. The State then filed an Amended

Motion to Dismiss and Objection to Amended Complaint on November 29, 2007. The State moved

the court to strike or deny Tennessee Realty’s Amended Complaint pursuant to Tennessee Rule of

Civil Procedure 15.01 because the Amended Complaint was filed without the leave of the Court or

the written consent of the adverse party. Alternatively, the State’s Amended Motion to Dismiss,

again, argued for dismissal based on the court’s lack of jurisdiction and Tennessee Realty’s failure

to state a claim upon which relief could be granted. 

On December 31, 2007, Tennessee Realty filed a Motion to compel the State “to make

arrangements for the discovery deposition of certain of its employees, along with other persons of

interest to [Tennessee Realty], or, in the alternative, to schedule a discovery conference.” Tennessee

Realty claimed that court intervention was necessary because the State refused to schedule discovery

depositions absent a court order requiring such. The State responded to Tennessee Realty’s Motion

by stating that Tennessee Realty was using discovery as a means of “circumvent[ing] the threshold

jurisdictional issues.” 

After a hearing on February 4, 2008, the Henry County Chancery Court entered an Order

Granting Motion to Dismiss and Amended Motion to Dismiss. The court stated:

After hearing arguments of counsel (which included [Tennessee

Realty’s] counsel’s insistence that the State of Tennessee should

prove ownership of the subject easement as a condition precedent

with or to its Motion), the Court finds that Defendant’s (State of

Tennessee) Motion to Dismiss and Amended Motion to Dismiss are

well taken and should be granted. The Court finds that [Tennessee

Realty’s] Motion to Compel and [its] insistence that the State must

put on proof as to ownership are therefore not well taken and

therefore denied.

IT IS THEREFORE ORDERED that the Defendant’s (State

of Tennessee) Motion to Dismiss and Amended Motion to Dismiss

are granted and that this case is therefore dismissed in its entirety to

all parties. 

This appeal followed. 

II. ISSUES PRESENTED
 Appellant does not ask this Court to consider whether the trial court lacked subject matter jurisdiction or 2

whether Appellant’s Complaint failed to raise a claim upon which relief could be granted, such that the granting of the

State’s Motion to Dismiss was appropriate. Thus, we will not address those issues on appeal.

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Appellant has timely filed its notice of appeal and presents the following issues for review

as stated in its brief:2

1. Was [Tennessee Realty] entitled to proceed with requested discovery (depositions) after the

filing of the [State’s] Motion to Dismiss?

2. Was the Court correct in dismissing the original Complaint as amended based solely on the

argument of counsel for the [State] without any proof either by testimony or documentation?

3. Was the Court correct in dismissing the original Complaint as amended in regard to

“BellSouth,” who filed no Motion to Dismiss and who presented no evidence through

testimony or documentation prior to the Court’s dismissal of the Complaint?

For the following reasons, we affirm the decision of the chancery court.

III. STANDARD OF REVIEW

As grounds for its Motion to Dismiss and Amended Motion to Dismiss, the State generally

cited TennesseeRule ofCivil Procedure 12.02. However, based on the language of both documents,

it appears that the State moved for dismissal based on Rule 12.02(1), arguing that the chancery court

did not have subject matter jurisdiction to adjudicate the claim, and 12.02(6), claiming that

Tennessee Realty had failed to state a claim upon which relief could be granted. In its Order

Granting Motion to Dismiss, the chancery court failed to specify upon which ground the motion was

granted; however, our standard of review is the same regarding both grounds.

Our Supreme Court, in Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000), set

forth the appropriate standard for reviewing a motion to dismiss for lack of subject matter

jurisdiction. The Court stated:

A motion to dismiss for lack of subject matter jurisdiction falls under

Tennessee Rule of Civil Procedure 12.02(1). The concept of subject

matter jurisdiction involves a court’s lawful authority to adjudicate a

controversy brought before it. See Meighan v. U.S. Sprint Commc’ns

Co., 924 S.W.2d 632, 639 (Tenn. 1996); Standard Sur. &Cas. Co. v.

Sloan, 180 Tenn. 220, 230, 173 S.W.2d 436, 440 (1943). Subject

matter jurisdiction involves the nature of the cause of action and the

relief sought, see Landers v. Jones, 872 S.W.2d 674, 675 (Tenn.

1994), and can only be conferred on a court by constitutional or

legislative act. See Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977);

Computer Shoppe, Inc. v. State, 780 S.W.2d 729, 734 (Tenn. Ct. App.
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1989). 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. See Nelson v. Wal-Mart Stores, Inc.,

8 S.W.3d 625, 628 (Tenn. 1999). 

Northland Ins. Co., 33 S.W.3d at 729. 

Likewise, the determination of whether the trial court erred in ruling on a motion to dismiss

for failure to state a claim upon which relief could be granted is a question of law. Doe v. Catholic

Bishop for Diocese of Memphis, No. W2007-01575-COA-R9-CV, 2008 WL 4253628, at *3 (Tenn.

Ct. App. Sept. 16, 2008) (citing Farris v. Todd, No. E1999-01574-COA-R3-CV, 2000 WL 528408,

at *2 (Tenn. Ct. App. May 3, 2000)). Thus, this Court must review the trial court’s ruling on a Rule

12.02(6) motion to dismiss de novo with no presumption of correctness. Id. (citing Stein v.

Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997)). “‘[W]e must construe the [plaintiff’s]

complaint liberally in favor of the plaintiff, taking all of the allegations of fact therein as true[,]’” Id.

(quoting Randolph v. Dominion Bank of Middle Tenn., 826 S.W.2d 477, 478 (Tenn. Ct. App. 1991)),

as “[a] motion to dismiss for failure to state a claim for which relief can be granted ‘tests only the

legal sufficiency of the complaint[.]’” Id. (quoting Stein, 945 S.W.2d at 716 (Tenn. 1997)). 

IV. DISCUSSION

A. Discovery

On appeal, Appellant asserts that the chancery court erred when it failed to allow Tennessee

Realty to proceed with requested discovery after the State filed its Motion to Dismiss. Appellant

claims that the appellate briefs submitted by both the State and BellSouth uncovered relevant facts

of which Appellant was unaware. Appellant argues “[i]t was these facts and several more equally

as pertinent which [Appellant] sought to identify and expand through the discovery process denied

by the Trial Court.” However, in Henderson v. Bates, No. W2005-01506-COA-R3-CV, 2006 WL

360844 (Tenn. Ct. App. Feb. 17, 2006), this Court considered this issue. In Henderson, an inmate

plaintiff appealed the trial court’s dismissal of his case, claiming that the trial court erred by

dismissing plaintiff’s civil right action before he could conduct discovery or respond to the

defendant’s motion to dismiss. In affirming the trial court, we stated, “[o]bviously, when

considering a motion to dismiss for failure to state a claim upon which relief can be granted, we are

limited to the examination of the complaint alone.” Id. at *2 (citing Wolcotts Fin. Serv., Inc. v.

McReynolds, 807 S.W.2d 708 (Tenn. Ct. App. 1990)). Thus, we held that the trial court did not err

in suspending discovery and failing to allow plaintiff to respond to the motion to dismiss, as neither

would have benefitted plaintiff. Id. at *4. 

In the instant case, we, likewise, find that further discovery would have been of no benefit

to Appellant, as Rule 12.02 motions to dismiss test only the sufficiency of the complaint. Rose v.

Cookeville Reg’l Med. Ctr., No. M2007-02368-COA-R3-CV, 2008 WL 2078056, at *4 (Tenn. Ct.
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App. May 14, 2008) (citing Pendleton v. Mills, 73 S.W.3d 115, 120 (Tenn. Ct. App. 2001)). Thus,

we find that the trial court did not err in failing to allow Appellant to proceed with requested

discovery after the State filed its Motion to Dismiss. 

B. Dismissal Without Proof

 

Next, Tennessee Realty asserts that the chancery court erred in dismissing its Complaint and

Amended Complaint based solely on the argument by the State’s Counsel, without any proof either

by testimony or documentation. More specifically, Appellant claims that the State should have been

required to prove its ownership of the easement right of way and also that Tennessee Realty’s fence

had encroached upon such. 

In ruling on a Tennessee Rule of Civil Procedure 12.02 motion, the trial court considers only

the sufficiency of the complaint, rather than the strength of the plaintiff’s evidence. Rose, 2008 WL

2078056, at *4 (citing Pendleton v. Mills, 73 S.W.3d 115, 120 (Tenn. Ct. App. 2001)). More

specifically, a Rule 12.02(6) motion for failure to state a claim upon which relief can be granted

claims that even if all of the “relevant and material factual allegations in the complaint” are taken

as true, the facts nonetheless fail to raise a cause of action. Id. (citing Marceaux v. Thompson, 212

S.W.3d 263, 267 (Tenn. Ct. App. 2006)). The trial court must “construe the complaint liberally in

favor of the plaintiff, taking all allegations of fact as true, and deny the motion unless it appears that

the plaintiff can prove no set of facts in support of her claim that would entitle her to relief.” Id.

(citing Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997); see Winchester v. Little, 996

S.W.2d 818, 822 (Tenn. Ct. App. 1998)). Likewise, this Court must presume the factual allegations

contained within the plaintiff’s complaint are true, and “review the trial court’s legal conclusions

regarding the adequacy of the complaint without a presumption of correctness.” Id. (citing

Marceaux, 212 S.W.3d at 267; see League Cent. Credit Union v. Mottern, 660 S.W.2d 787, 789

(Tenn. Ct. App.1983)).

To determine the appropriate standard of review concerning a Tennessee Rule of Civil

Procedure 12.02(1) motion to dismiss for lack of subject matter jurisdiction, we must first determine

which method the defendant is employing to challenge such jurisdiction. “Two methods are

available to challenge a court’s subject matter jurisdiction. The first, and most common, is a ‘facial’

challenge. The second is a ‘factual’ challenge.” Staats v. McKinnon, 206 S.W.3d 532, 542 (Tenn.

Ct. App. 2006) (citing Thomas v. Mayfield, No. M2000-02533-COA-R3-CV, 2004 WL 904080, at

*4-5 (Tenn. Ct. App. Apr. 27, 2004); 2 James W. Moore et al., Moore’s Federal Practice § 12.30[4]

(3d ed. 2005)). 

Under a facial challenge, the complaint, itself, is attacked. Id. “It asserts that the complaint,

considered from top to bottom, fails to allege facts that show that the court has power to hear the

case.” Staats, 206 S.W.3d at 542 (citing Crawford v. U.S. Dep’t of Justice, 123 F. Supp. 2d 1012,
 The Staats Court noted that “Tenn. R. Civ. P. 12 is substantially identical to Fed. R. Civ. P. 12, making 3

federal court precedents persuasive authority in construing our rule.” Staats, 206 S.W.3d at 543 n.13 (citing Byrd v.

Hall, 847 S.W.2d 208, 211 n.2 (Tenn. 1993); Bayberry Assocs. v. Jones, 783 S.W.2d 553, 557 (Tenn. 1990); Pacific

E. Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 952 n.7 (Tenn. Ct. App. 1995)).

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1013-14 (S.D. Miss. 2000)). “In deciding a facial challenge, the court considers the impugned 3

pleading and nothing else.” Id. (citing Laird v. Ramirez, 884 F. Supp. 1265, 1272 (N.D. Iowa

1995); Ensign-Bickford Co. v. ICI Explosives USA, Inc., 817 F. Supp. 1018, 1023 (D. Conn. 1993)).

Under a facial challenge, “[i]f a complaint . . . competently alleges any facts which, if true, would

establish grounds for subject matter jurisdiction, the court must uncritically accept those facts, end

its inquiry, and deny the dismissal motion.” Id. at 542-43 (citing Great Lakes Educ. Consultants v.

Fed. Emergency Mgmt. Agency, 582 F. Supp. 193, 194 (W.D. Mich. 1984)).

In a factual challenge, the defendant contends that the court lacks subject matter jurisdiction

even though the plaintiff’s complaint “alleges facts tending to show jurisdiction.” Id. at 543. “It

controverts the complaint’s factual allegations regarding jurisdiction, Cedars-Sinai Med. Ctr. v.

Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993), and puts at issue the sufficiency of the evidence

to prove facts that would bring the case within the court’s subject matter jurisdiction.” Id. (citing

Ensign-Bickford Co., 817 F. Supp. at 1023). 

We construe the State’s Motion to Dismiss and Amended Motion to Dismiss as facial

challenges to the chancery court’s subject matter jurisdiction. Thus, in considering the State’s

Motions, under both Rules 12.02(1) and 12.02(6), the trial court was only required to consider

Appellant’s Complaint and Amended Complaint to determine whether the court had subject matter

jurisdiction to hear Appellant’s claim, and then to determine whether Appellant’s Complaint

sufficiently alleged a claim for relief. Hence, we find no error in the trial court’s ruling on the State’s

motions without “proof either by testimony or documentation.” 

C. Dismissal of BellSouth

In its brief, Tennessee Realty lists as an issue for this Court’s review, whether the chancery

court erred in dismissing its Complaint and Amended Complaint with regard to BellSouth, as

BellSouth did not file a motion to dismiss, and it presented no evidence, through testimony or

documentation, to the court. However, Tennessee Realty has failed to present a sufficient argument

concerning this issue. Tennessee Rule of Civil Procedure 27(a) provides that an appellant’s brief:

shall contain . . . [a]n argument, which may be preceded by a

summary of argument, setting forth the contention of the appellant

with respect to the issues presented, and the reasons therefor,

including the reasons why the contentions require appellate relief,
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with citations to the authorities and appropriate references to the

record . . . relied on[.]

“The failure of a party to cite to any authority or to construct an argument regarding his position on

appeal constitutes waiver of that issue.” Boggs Kurlander Steele, LLC v. Horizon Commc’ns, No.

M2006-00018-COA-R3-CV, 2008 WL 490628, at *4 (Tenn. Ct. App. Feb. 21, 2008) (citing

Newcomb v. KohlerCo., 222 S.W.3d 368, 402 (Tenn. Ct. App. 2006);see alsoRector v. Halliburton,

No. M1999-02802-COA-R3-CV, 2003 WL 535924, at *9 (Tenn. Ct. App. Feb. 26, 2003) (per

curiam); Rhea County v. Town of Graysville, No. E2001-02313-COA-R3-CV, 2002 WL 1723681,

at *7 (Tenn. Ct. App. July 25, 2002)).

On appeal, Tennessee Realty’s only attempt at an argument on this issue comes in the

“Statement of the Case” and “Statement of Facts” sections of its brief which state that “[n]o formal

Answer was filed by either the [State] or [BellSouth], and [BellSouth] only had its attorney’s Notice

of Appearance filed[;] “the respective positions of the parties through their pleadings were presented

to the Court without any proof, testimony or documentation[;]” and “[o]ther than introduction,

counsel for [BellSouth] did not participate in the proceeding, and, like the [State], produced no

evidence of any nature.” These statements do not provide the “argument” and “citation to the

authorities” required by Tennessee Rule of Appellate Procedure 27(a). Thus, we find, under

Tennessee Rule of Appellate Procedure 27(a), that Appellant has waived its right to have the issue

of BellSouth’s dismissal considered by this Court. 

V. CONCLUSION

For the aforementioned reasons, we affirm the decision of the chancery court. Costs of this

appeal are taxed to Appellant, Tennessee Realty Development, LLC, and its surety, for which

execution may issue if necessary.

___________________________________ 

ALAN E. HIGHERS, P.J., W.S.