Vicki L. Mobley v. State of Arkansas

01/07/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 9, 2018 Session

VICKI L. MOBLEY, ET AL. v. STATE OF ARKANSAS, ET AL.

Appeal from the Circuit Court for Shelby County

No. CT-000941-17 Felicia Corbin Johnson, Judge

___________________________________

No. W2017-02356-COA-R3-CV

___________________________________

This appeal involves an Arkansas plaintiff who was involved in an auto accident on a

bridge between Arkansas and Tennessee with another vehicle operated by an employee of

the State of Arkansas. The Arkansas plaintiff and her husband filed this personal injury

suit in the circuit court of Shelby County, Tennessee, naming as defendants the State of

Arkansas, the Arkansas State Highway and Transportation Department, and the Arkansas

state employee who was operating the other vehicle. The defendants moved to dismiss

on numerous grounds, including sovereign immunity and the discretionary principle of

comity. The Tennessee Attorney General filed an amicus brief on behalf of the

Tennessee Department of Transportation asking the trial court to extend comity to the

Arkansas defendants and dismiss the action against them. After two hearings, the trial

court granted the defendants’ motion to dismiss on the basis of comity. Discerning no

error, we affirm the decision of the circuit court.

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

Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN

STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

William Lewis Jenkins, Jr., and Dean Powell Dedmon, Dyersburg, Tennessee, for the

appellants, Vicki L. Mobley and Charles Mobley.

Vincent P. France, Assistant Attorney General of the State of Arkansas, and Justin Lynn

Jones and Samantha A. Lunn, Chattanooga, Tennessee, for the appellees, State of

Arkansas, Arkansas State Highway and Transportation Department, and Anthony

Maurice James.

OPINION

I. FACTS & PROCEDURAL HISTORY

Vicki Mobley and her husband Charles Mobley filed this suit for negligence and

personal injuries in the circuit court of Shelby County, Tennessee. According to their

complaint, the Mobleys are citizens and residents of the State of Arkansas. The

complaint alleges that Mrs. Mobley was driving her vehicle on Interstate 40 across the

Hernando Desoto Bridge, which spans from Tennessee to Arkansas, when she struck a

stationary vehicle that belonged to the Arkansas State Highway and Transportation

Department (and/or the State of Arkansas) and was operated by Arkansas state employee

Anthony Maurice James. The complaint alleges that the stationary vehicle was parked in

a lane of travel on the bridge within the geographic boundary of the State of Tennessee

and that the state employee was apparently repairing signage belonging to the State of

Arkansas or the Arkansas State Highway and Transportation Department. The complaint

alleges that the state employee was acting in the course and scope of his employment and

failed to utilize any warning signs, cones, emergency lighting, or “emergency parts and

accessories” to warn approaching motorists of his vehicle, nor did he have the signage on

his truck illuminated. The plaintiffs alleged that the Arkansas state employee was

negligent or reckless and violated numerous Tennessee statutes, and they sought a

judgment against the defendants for $1,500,000.

The Assistant Attorney General for the State of Arkansas filed a motion to dismiss

on behalf of the three Arkansas defendants. Among other things, the defendants asserted

that dismissal was proper either because of sovereign immunity or under the discretionary

principle of comity.1 The defendants submitted documentation reflecting that each of the

plaintiffs had already filed claims regarding this accident with the Arkansas State Claims

Commission. They also attached to their motion an “Interagency Memorandum of

Understanding” between the Tennessee Department of Safety and the Tennessee

Department of Transportation and the Arkansas State Highway and Transportation

Department, which, the defendants argued, was meant to address “this exact situation”

involving a highway incident on the bridge. The stated purpose of the Interagency

Memorandum was to facilitate joint efforts toward alleviating problems associated with

roadway incidents and emphasize the urgent and safe clearance of incidents on or around

the Mississippi River bridges connecting Tennessee and Arkansas. It provided that if an

agency or employee of one state was sued in the other state for a course of action arising

from the cooperation of state agencies or employees on or around the bridges, then both

states would request either dismissal of the out-of-state defendant or application of the

privileges and immunities of the out-of-state defendant’s home state.

1

“‘Comity’ means that courts of one state may, out of respect and the need for interstate

harmony, defer to the decisions of the courts of another state or extend immunity to another state

out of deference to the foreign state’s laws, even when not required to do so by the Full Faith and

Credit Clause of the United States Constitution.” Lemons v. Cloer, 206 S.W.3d 60, 69 (Tenn. Ct.

App. 2006).

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The Mobleys filed a response in which they argued that Arkansas was not entitled

to assert sovereign immunity in the courts of its sister states, according to controlling

United States Supreme Court precedent. Regarding the principle of comity, the plaintiffs

argued that the trial court should refuse to consider any matters outside the pleadings,

such as the Interagency Memorandum of Understanding, because the defendants made

the decision to pursue a motion to dismiss pursuant to Rule 12 of the Tennessee Rules of

Civil Procedure. However, even if the Interagency Memorandum was considered, the

Mobleys argued that the complaint did not contain sufficient information about the

purpose of the state employee’s presence on the bridge in order to determine whether he

would be covered by the Memorandum. The Mobleys argued that the fact that they were

Arkansas residents was irrelevant to the jurisdictional issues before the court and asked

the court to focus on the fact that an Arkansas state employee caused an injury to a

person inside the State of Tennessee.

The defendants filed a reply asserting that their Rule 12 motion was brought

pursuant to Rule 12.02(1), presenting a factual challenge to the trial court’s subject matter

jurisdiction, and therefore, the trial court could properly consider matters outside the

pleadings.

The trial judge held a hearing on the motion to dismiss. The Arkansas Assistant

Attorney General explained that Arkansas has a Claims Commission and governing

statutes that are very similar to the system utilized in Tennessee (with the exception that

Arkansas does not have a cap on damages).2 Noting that the Mobleys had an available

forum in Arkansas, he asked the trial court to recognize the sovereign immunity of the

State of Arkansas and dismiss this action based on the principle of comity.

In response, the Mobleys acknowledged that their claims were still pending before

the Arkansas State Claims Commission. Still, they maintained that Arkansas was not

entitled to assert sovereign immunity in the courts of sister states, and they also asked the

court to decline to recognize its sovereign immunity under the discretionary principle of

comity. The Mobleys also argued that the Interagency Memorandum was inapplicable by

its terms based on the facts alleged in the complaint.

The trial judge noted that the Interagency Memorandum provided that both states

would request dismissal or ask for application of the privileges and immunities of the out-

of-state defendant’s home state in the event of litigation. The trial judge raised concerns

about the implications of her decision for the State of Tennessee in future cases involving

2

See Ark. Code Ann. § 19-10-201 (creating the “Arkansas State Claims Commission”).

The Arkansas State Claims Commission has “exclusive jurisdiction over all claims against the

State of Arkansas and its several agencies, departments, and institutions.” Ark. Code Ann. § 19-

10-204(a). It has jurisdiction “over those claims which are barred by the doctrine of sovereign

immunity from being litigated in a court of general jurisdiction.” Id. § 19-10-204(b)(2)(A).

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the Interagency Memorandum. She ultimately decided to defer a decision on the motion

to dismiss until the Tennessee Attorney General was provided with formal notice of the

proceeding and given the opportunity to participate.

After the hearing, the defendants filed a supplemental brief along with additional

exhibits. The defendants submitted an affidavit from the Arkansas State Highway and

Transportation Department employee who was driving the vehicle parked on the bridge.

In the affidavit, the employee stated that on the date of the accident, he received a call

indicating that a sign was blocking the inside lane of westbound travel on Interstate 40 on

the Hernando Desoto Bridge. The employee stated that when he arrived on the scene, he

saw that a construction sign that was bolted to the center median had broken due to a bolt

coming loose and allowing the sign to swing out into the lane of traffic. He stated that

the sign posed a real danger because it was essentially debris in the middle of the traffic

lane hanging at the same level of a car windshield. Based on this affidavit, the

defendants claimed that the Interagency Memorandum was applicable, as it referenced

“incidents” such as “crashes, stalled vehicles, debris, special events, [and] road work,”

and they asked the trial court to dismiss the suit based on the agreement and principles of

comity.

The Office of the Tennessee Attorney General and Reporter filed an “amicus

memorandum” on behalf of the Tennessee Department of Transportation. The Tennessee

Attorney General took the position that the Interagency Memorandum regarding the

clearance of roadway incidents on the bridge was applicable to the facts of this case as

they were described in the affidavit of the Arkansas state employee. The memorandum

submitted by TDOT states that the loose sign posed “an unanticipated danger” to traffic

on the bridge that required “a quick response” in order “to prevent potentially disastrous

consequences.” According to the memorandum, these were the type of circumstances in

which the states had agreed to cooperate. As a result, TDOT requested that the trial court

dismiss the lawsuit against the Arkansas defendants. However, TDOT clarified that its

request was “not merely to conform to the terms of the [Interagency Memorandum],” but

also under the common law principle of comity. TDOT explained that comity is

grounded in cooperation and mutuality out of deference and respect to sister states. It

explained that “Arkansas has adopted a cooperative posture vis-à-vis its sister States” and

noted that a federal district court in Arkansas had previously extended comity to

Tennessee in order to promote the harmonious relationship between the two states. See

Harris v. City of Memphis, 119 F.Supp.2d 893 (E.D. Ark. 2000). TDOT suggested that

granting comity to Arkansas in this case would increase the likelihood of Arkansas and

other sister states extending comity to Tennessee.

After another hearing, the trial court entered an order granting the Arkansas

defendants’ motion to dismiss, referencing Tennessee Rule of Civil Procedure 12.02(1).

The trial court based its dismissal on two alternative grounds—the Interagency

Memorandum between the states and “the common law principles of comity.” First,

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regarding the Interagency Memorandum, the trial court found that it addressed incidents

on bridges such as stalled vehicles, debris, special events, or road work, and that this

language encompassed situations like the one presented in this case, which would pose a

safety hazard and impact traffic flow. As a result, the court found that dismissal was

appropriate pursuant to the Interagency Memorandum. Alternatively, however, the trial

court stated that even if the Interagency Memorandum did not exist or apply, dismissal

was appropriate based on the common law principles of comity. The court noted that

comity had been extended to the State of Tennessee in the past and that the court did not

desire to impede the ability of these two states to work together when these situations

arise. Lastly, the trial court noted that the Mobleys had another forum available in

Arkansas for the resolution of their claims. For these reasons, the trial court dismissed

the Mobleys’ lawsuit with prejudice. The Mobleys timely filed a notice of appeal to this

Court.

II. ISSUES PRESENTED

The parties present the following issues, as we perceive them, for review on

appeal:

1. Whether the Arkansas defendants were entitled to sovereign immunity such that

the trial court lacked subject matter jurisdiction; and

2. Whether the trial court erred in dismissing the case based on the discretionary

principle of comity.

For the following reasons, we affirm the decision of the circuit court and remand for

further proceedings.

III. DISCUSSION

A. Lack of Jurisdiction due to Sovereign Immunity

At the outset, we address the Arkansas defendants’ argument that “the doctrine of

interstate sovereign immunity requires that the lawsuit be dismissed against the State of

Arkansas and its agents.” According to the Arkansas defendants, “sovereign immunity

barred the trial court from being able to hear the case based upon principles of the United

States Constitution as well as common law principles of sovereignty.”

Subject matter jurisdiction and sovereign immunity “are two different legal

concepts[.]” Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 851 (Tenn. 2008).

However, courts may lack subject matter jurisdiction because of the doctrine of sovereign

immunity. Id. “‘[S]overeign immunity is jurisdictional immunity from suit,’” which

“‘acts as a jurisdictional bar to an action against the state by precluding a court from

exercising subject-matter jurisdiction.’” Id. (quoting 81A Am. Jur. 2d States § 534

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(2004)). “The doctrine of sovereign immunity divests the courts of subject matter

jurisdiction[.]” White v. State ex rel. Armstrong, No. M1999-00713-COA-R3-CV, 2001

WL 134601, at *3 (Tenn. Ct. App. Feb. 16, 2001). Thus, we treat the Arkansas

defendants’ motion to dismiss based on sovereign immunity as a challenge to subject

matter jurisdiction. See Arnold v. Oglesby, No. M2017-00808-COA-R3-CV, 2017 WL

5634249, at *1 (Tenn. Ct. App. Nov. 22, 2017) perm. app. denied (Tenn. Feb. 14, 2018);

Smith v. Tenn. Nat’l Guard, 387 S.W.3d 570, 572 (Tenn. Ct. App. 2012).

The trial court’s order of dismissal did not expressly analyze the issue of subject

matter jurisdiction, ruling instead that dismissal was warranted because comity should be

extended to the Arkansas defendants. Both parties have briefed the issue of sovereign

immunity as it relates to subject matter jurisdiction on appeal, with the Arkansas

defendants arguing that jurisdiction does not exist and the Mobleys arguing that it does.

Because “issues regarding a court’s subject matter jurisdiction should be considered as a

threshold inquiry,” In re Estate of Trigg, 368 S.W.3d 483, 489 (Tenn. 2012), we begin

with consideration of that issue.

Tennessee courts draw a distinction “between facial and factual challenges to

subject matter jurisdiction.” Church of God in Christ, Inc. v. L. M. Haley Ministries, Inc.,

531 S.W.3d 146, 159 (Tenn. 2017). A facial challenge to subject matter jurisdiction is “a

challenge to the complaint itself.” Redwing v. Catholic Bishop for Diocese of Memphis,

363 S.W.3d 436, 445 (Tenn. 2012). It “asserts that the complaint, considered as a whole,

fails to allege facts showing that the court has subject matter jurisdiction to hear the

case.” Church of God in Christ, 531 S.W.3d at 160. Accordingly, when evaluating a

facial challenge, we limit our consideration to the factual allegations of the complaint and

consider nothing else, utilizing the familiar framework that applies to motions to dismiss

for failure to state a claim. Id. We simply presume that the factual allegations of the

complaint are true and determine whether those facts establish a basis for the court’s

exercise of subject matter jurisdiction. Id.

A factual challenge to subject matter jurisdiction, on the other hand, does not

attack the allegations of the complaint as insufficient but rather “‘denies that the court

actually has subject matter jurisdiction as a matter of fact even though the complaint

alleges facts tending to show jurisdiction.’” Redwing, 363 S.W.3d at 446 (quoting Staats

v. McKinnon, 206 S.W.3d 532, 543 (Tenn. Ct. App. 2006)). It attacks the facts that serve

as the basis for jurisdiction. Id. When evaluating a factual attack, we may consider

matters outside the pleadings such as affidavits and other documents. Church of God in

Christ, 531 S.W.3d at 160. However, “motions challenging subject matter jurisdiction

are not converted to summary judgment motions when matters outside the pleadings are

considered or when disputes of material fact exist.” Id. (citing Anderson v. Watchtower

Bible and Tract Soc’y of N.Y., Inc., No. M2004-01066-COA-R9-CV, 2007 WL 161035,

at *32 n.23 (Tenn. Ct. App. Jan. 19, 2007)). The court “must weigh the evidence, resolve

any factual disputes, and determine whether subject matter jurisdiction exists.” Id.

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“[T]he burden is on the plaintiff to demonstrate that the court has jurisdiction to

adjudicate the claim.” Redwing, 363 S.W.3d at 445. Here, the Arkansas defendants

moved to dismiss on the basis of sovereign immunity, pointing to the facts that were

alleged in the complaint—both plaintiffs were citizens of Arkansas, and the three

defendants were the Arkansas Highway and Transportation Department (described in the

complaint as a governmental entity of the State of Arkansas), a state employee of the

Department (also said to be a resident of Arkansas), and the State of Arkansas itself.

Referencing “[t]he suability of a state,” the defendants asserted that they had not waived

their right to sovereign immunity and were therefore entitled to dismissal. Essentially,

the Arkansas defendants asserted that even if the facts alleged in the complaint were true,

Tennessee’s courts were without subject matter jurisdiction to adjudicate claims against

them. Accordingly, their challenge to the trial court’s subject matter jurisdiction was

facial.3 See Redwing, 363 S.W.3d at 445-46.

The landmark decision from the United States Supreme Court addressing the

sovereign immunity of states in the courts of sister states is Nevada v. Hall, 440 U.S. 410

(1979). In Hall, the plaintiffs were California residents who were injured in an

automobile accident in California with another driver who was an employee of the

University of Nevada driving a state-owned vehicle on official business. Id. at 411. The

California plaintiffs filed suit in California and ultimately obtained a judgment against the

State of Nevada. Id. The United States Supreme Court granted certiorari to decide

whether federal law prohibited California courts from asserting jurisdiction over another

sovereign State. Id. The Court noted that it had not previously addressed the important

question of “whether a State may claim immunity from suit in the courts of another

State,” and nothing in the United States Constitution or federal statutes expressly

answered the question. Id. at 414 & n.5. Nevada argued that the question was “implicitly

answered” by the “common understanding” that a sovereign is not amenable to suit

without its consent. Id. at 414. However, the Court proceeded to determine “whether

that understanding is embodied in the Constitution.” Id.

Looking first to the source and scope of the traditional doctrine of sovereign

immunity, the Court explained,

The doctrine of sovereign immunity is an amalgam of two quite

different concepts, one applicable to suits in the sovereign’s own courts and

the other to suits in the courts of another sovereign.

The immunity of a truly independent sovereign from suit in its own

courts has been enjoyed as a matter of absolute right for centuries. Only

the sovereign’s own consent could qualify the absolute character of that

3

The documents that were attached to the motion to dismiss were relevant to the

defendants’ comity argument, which is discussed in the following section of this opinion.

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immunity.

....

Mr. Chief Justice Jay described sovereignty as the “right to govern”;

that kind of right would necessarily encompass the right to determine what

suits may be brought in the sovereign’s own courts. Thus, Mr. Justice

Holmes explained sovereign immunity as based “on the logical and

practical ground that there can be no legal right as against the authority that

makes the law on which the right depends.”

This explanation adequately supports the conclusion that no

sovereign may be sued in its own courts without its consent, but it affords

no support for a claim of immunity in another sovereign’s courts. Such a

claim necessarily implicates the power and authority of a second sovereign;

its source must be found either in an agreement, express or implied,

between the two sovereigns, or in the voluntary decision of the second to

respect the dignity of the first as a matter of comity.

Id. at 414-416 (footnotes omitted) (emphasis added).

Next, the Court considered the impact of the sovereign immunity doctrine on the

framing of the Constitution. Id. at 414. The Supreme Court recognized that sovereign

immunity was “[u]nquestionably . . . a matter of importance in the early days of

independence” but said that the question of “whether one State might be subject to suit in

the courts of another State was apparently not a matter of concern when the new

Constitution was being drafted and ratified.” Id. at 418-19. The Court explained that the

need for constitutional protection against such suits was not discussed, as the framers

“presumably” had assumed “that prevailing notions of comity would provide adequate

protection against the unlikely prospect of an attempt by the courts of one State to assert

jurisdiction over another[.]” Id. at 419.

After reviewing other aspects of the Constitution in search of a “mandate for

federal-court enforcement of interstate comity,” the Court found no implication “that any

one State’s immunity from suit in the courts of another State is anything other than a

matter of comity.” Id. at 421, 425. In conclusion, the Court stated,

In the past, this Court has presumed that the States intended to adopt

policies of broad comity toward one another. But this presumption

reflected an understanding of state policy, rather than a constitutional

command. . . .

....

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It may be wise policy, as a matter of harmonious interstate relations,

for States to accord each other immunity or to respect any established limits

on liability. They are free to do so. But if a federal court were to hold, by

inference from the structure of our Constitution and nothing else, that

California is not free in this case to enforce its policy of full compensation,

that holding would constitute the real intrusion on the sovereignty of the

States—and the power of the people—in our Union.

Id. at 425-27.

In their brief on appeal, the Arkansas defendants acknowledge that their claim of

sovereign immunity was “based on principles of the United States Constitution as well as

common law principles of sovereignty.” Based on the Supreme Court’s decision in Hall

addressing these very issues, we reject the Arkansas defendants’ assertion that they were

entitled to assert sovereign immunity in Tennessee courts. The defendants argue that

Hall has “waning precedential value” and “has been called into question in recent years,”

and they suggest that it may be overturned in the near future. However, the fact remains

that it has not been overturned as of the date of this opinion. See, e.g., Catholic Diocese

of Arlington Virginia v. Com. Transp. Comm’r, 74 Va. Cir. 154, 2007 WL 5961975, at*1

(Va. Cir. Ct. 2007) (“Maryland presents a spirited argument that Nevada v. Hall should

be overruled. Whatever the merits of that argument—and Maryland may well be right

that Hall would not come out the same way today as it did in 1979—this Court is bound

by that decision until the Supreme Court tells it otherwise.”) As the Mobleys aptly noted

in their reply brief, “If Nevada v. Hall later is overturned, the State of Arkansas [could]

raise that issue when it becomes an issue; but for now, the law as it is should guide the

decision in this case.”4

Next, the Arkansas defendants argue that they were entitled to assert sovereign

immunity in Tennessee courts based on Tennessee caselaw regarding interstate sovereign

immunity. For instance, they rely on Tappan v. Western & Atlantic Railroad Co., 71

Tenn. 106 (1879), a case decided by the Tennessee Supreme Court a century before the

United States Supreme Court decided Hall. In Tappan, the State of Georgia moved to

dismiss a suit on the basis that “the State of Georgia is one of the Sovereign States of the

United States of America, and is not liable or subject to be sued, arraigned or impleaded

in the courts of Tennessee, and therefore insists she is not bound to submit to the

jurisdiction sought to be exercised.” Id. at 110 (internal quotation marks omitted). The

4

In Franchise Tax Bd. of California v. Hyatt, 136 S. Ct. 1277, 1279 (2016), the Supreme

Court was equally divided 4-4 as to whether Nevada v. Hall should be overruled. After the

decision on remand, the Supreme Court granted another petition for writ of certiorari, 138 S.Ct.

2710, and the case remains pending before the Court. Indiana and 43 other states have filed a

brief as amici curiae urging the Court to overturn Nevada v. Hall. 2018 WL 4583704.

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Tennessee Supreme Court affirmed dismissal, stating,

It is hardly necessary to cite authorities in support of the proposition,

that a State of this Union, is as to any other State a foreign and independent

government; whether sovereign in the fullest sense of the term, we do not

stop to inquire. No State can be sued in its own courts, except by its

consent, and certainly can not be impleaded in a foreign State, against its

consent. These are axiomatic principles of jurisprudence, about which there

can be no doubt or debate.

Id. at 112-13. The Tennessee Supreme Court went on to say that it could not hold that

Georgia could be sued in Tennessee courts “without overturning, or disregarding

principles long established, and so well-grounded in reason and the philosophy of the

law, as to be impregnable to attack.” Id. at 113.

Although the Tennessee Supreme Court did not specify the precise source of these

unspecified principles, we believe that they were grounded in federal constitutional law

or the traditional notions of sovereign immunity discussed at length by the United States

Supreme Court in Hall. As the Supreme Court of Delaware succinctly explained,

For almost two hundred years, it had been assumed that the United States

Constitution implicitly prohibited one state from being sued in the courts of

another state—just as the Eleventh Amendment explicitly prohibited states

from being sued in federal courts. That implicit assumption was based on

the theory that interstate immunity was an attribute of state sovereignty that

had been reserved to the states in the United States Constitution. In 1979,

when it decided Hall, the United States Supreme Court held that

assumption was unwarranted.

Kent Cty., State of Md. v. Shepherd, 713 A.2d 290, 297 (Del. 1998) (footnotes omitted);

see also Ann Woolhandler, Interstate Sovereign Immunity, 2006 Sup. Ct. Rev. 249, 252,

276 (2006) (explaining that “both federal and state courts proceeded on assumptions of

interstate sovereign immunity for 180 years--until Hall” and noting that the Tennessee

Supreme Court in Tappan had “manifested the same working assumption as the federal

courts that constitutional and general law immunity principles prevented states from

being made involuntary parties in suits in other states”). Notably, the Arkansas

defendants do not point to any specific aspect of Tennessee law pursuant to which they

would be entitled to sovereign immunity independent of these sources. As a result, we

conclude that Hall is controlling as to this issue rather than Tappan.

Pursuant to the Hall decision, the Arkansas defendants had no absolute right to

assert sovereign immunity in the courts of this State. Consequently, the trial court did not

lack subject matter jurisdiction on the basis of sovereign immunity.

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B. Discretionary Dismissal on the Basis of Comity

Next, we address the issue of comity, which served as the basis for the trial court’s

decision to decline to exercise its jurisdiction and instead dismiss the suit against the

Arkansas defendants.5 In Nevada v. Hall, the Supreme Court stated that a state’s claim of

immunity in another sovereign’s courts “necessarily implicates the power and authority

of a second sovereign,” and therefore, “its source must be found either in an agreement,

express or implied, between the two sovereigns, or in the voluntary decision of the

second to respect the dignity of the first as a matter of comity.” 440 U.S. at 416

(emphasis added); see also Alden v. Maine, 527 U.S. 706, 749 (1999) (“the immunity of

one sovereign in the courts of another has often depended in part on comity or

agreement”).

In the case before us, the Arkansas defendants asserted immunity under both

options—citing the agreement between the two states expressed in the Interagency

Memorandum and also seeking comity under common law principles. And, the trial

court granted the motion to dismiss on both alternative bases, finding the Interagency

Memorandum applicable, but at the same time, holding that dismissal was appropriate

under common law principles of comity regardless of the existence or applicability of the

Interagency Memorandum.

On appeal, the Mobleys argue that the trial court should not have considered the

Interagency Memorandum and should not have found it applicable to these facts.

However, we conclude that dismissal of the Arkansas defendants was proper under

common law principles of comity based on the allegations of the complaint and do not

reach the issue of the Interagency Memorandum.

Even if it is not constitutionally mandated, Tennessee retains the discretion to

decline to exercise jurisdiction over this suit as a matter of comity. “At bottom, comity is

about one sovereign respecting the dignity of another.” Michigan v. Bay Mills Indian

Cmty., 572 U.S. 782, 817 (2014) (Thomas, J., dissenting). This Court has described

comity as “the golden rule as applied between states,” meaning that “one state will do in

regard to the laws of another state that which if the conditions were reversed, it would

like for the other state to do in regard to its laws.” U.S. Gypsum Co. v. Am. Sur. Co. of

N.Y., 14 Tenn. App. 367, 373 (1931). Whether to grant comity in a given situation is

“purely a question of Tennessee law.” Hyde v. Hyde, 562 S.W.2d 194, 198 (Tenn. 1978).

“[C]omity is a discretionary doctrine and may be granted or withheld depending on the

5

It is important to “distinguish the concepts of lack of subject matter jurisdiction and

declining to exercise jurisdiction based on principles of comity.” Levert v. Univ. of Ill. at

Urbana/Champaign ex rel. Bd. of Trustees, 857 So. 2d 611, 617 (La. Ct. App. 2003).

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particular facts, laws and policies present in an individual case.”6 Id. However,

Tennessee courts will not extend comity if it would violate the public policy of this State.

Id.; see also In re Conservatorship of Clayton, 914 S.W.2d 84, 92 (Tenn. Ct. App. 1995).

Again, in Nevada v. Hall, the Supreme Court said that it had historically

“presumed that the States intended to adopt policies of broad comity toward one another”

as a matter of state policy. Nevada v. Hall, 440 U.S. at 425. The Court added, “It may

be wise policy, as a matter of harmonious interstate relations, for States to accord each

other immunity or to respect any established limits on liability. They are free to do so.”

Id. at 426. Clearly, the Court “encouraged” but did not compel the states to accord

deference to each other as a matter of comity. McDonnell v. State of Ill., 748 A.2d 1105,

1106 (N.J. 2000); see also Montaño v. Frezza, 393 P.3d 700, 703 (N.M. 2017) (“The

United States Supreme Court has long referred to a broad presumption of comity between

the states[.]”); Greenwell v. Davis, 180 S.W.3d 287, 297 (Tex. Ct. App. 2005) (“There is

a presumption that the sovereign states in the United States intend to adopt a policy of

broad comity toward one another.”) (internal quotation marks omitted).

We extended comity to recognize the governmental immunity of the State of

Georgia in Lemons v. Cloer, 206 S.W.3d 60, 69 (Tenn. Ct. App. 2006), a case involving a

Georgia school bus crash just over the Tennessee state line. We said,

“Comity” means that courts of one state may, out of respect and the

need for interstate harmony, defer to the decisions of the courts of another

6

Some courts hold that the extension of comity is a matter within the discretion of each

trial judge. See, e.g., Levert, 857 So.2d at 618 (La. Ct. App. 2003) (“the decision to extend

comity rests in the sound discretion of the trial court”); Univ. of Iowa Press v. Urrea, 440 S.E.2d

203, 204 (Ga. Ct. App. 1993). Others recognize that comity is a discretionary principle but

review a comity decision on appeal either de novo or under a mixed standard of review. See,

e.g., Montaño v. Frezza, 393 P.3d 700, 704 (N.M. 2017) (“We apply a mixed standard of review

to questions of comity. While a district court’s decision to extend comity in a given case is

subject to de novo review, we also analyze any fact-intensive aspects of the district court’s

comity analysis under a more deferential abuse of discretion standard.”); Atl. Coast Conference

v. Univ. of Maryland, 751 S.E.2d 612, 618 (N.C. App. 2013) (“while the decision as to whether

comity should be extended in any given case has been assigned to the discretion of our courts as

a general matter, it does not follow that our courts should leave each comity decision to the

sound discretion of the trial judge”); Greenwell v. Davis, 180 S.W.3d 287, 294-95 (Tex. Ct. App.

2005) (declining to defer to trial courts’ discretion on matters involving relations between Texas

and other sovereigns and concluding that a de novo standard of review “rests on a firmer

foundation”). According to the Texas Court, “‘The discretion in applying comity is a discretion

of law rather than the discretion of the trial court.’” Id. at 295 (quoting 16 Am. Jur. 2d Conflicts

of Laws § 17 (1998)).

It is not necessary for us to adopt one or the other approach in this case because we would

affirm the trial court’s decision under either an abuse of discretion or a de novo standard.

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state or extend immunity to another state out of deference to the foreign

state’s laws, even when not required to do so by the Full Faith and Credit

Clause of the United States Constitution. See Nevada v. Hall, 440 U.S.

410, 426, 99 S.Ct. 1182, 1191, 59 L.Ed.2d 416 (1979) (“It may be wise

policy, as a matter of harmonious interstate relations, for States to accord

each other immunity or to respect any established limits on liability.”).

“[W]here the law of another jurisdiction is applicable, Tennessee will

enforce the substantive rights which litigants have under the laws of the

other jurisdiction if such rights are not contrary to the policy of Tennessee.”

Hyde v. Hyde, 562 S.W.2d 194, 196 (Tenn. 1978). The public policy of a

state is found in its constitution, statutes, and court decisions. Id. In the

instant case, it is clear that Georgia’s law with respect to waiver of

immunity is completely in harmony with the public policy of Tennessee.

Id.

The Sixth Circuit has also observed that “[w]hile Tennessee has no constitutional

obligation to recognize the sovereign immunity that a sister state may have granted to a

citizen, see Nevada v. Hall, 440 U.S. 410, 426–27 [] (1979), Tennessee courts choose to

do so, in their discretion, in the interest of comity and state harmony.” Town of Smyrna,

Tenn. v. Mun. Gas Auth. of Ga., 723 F.3d 640, 647 (6th Cir. 2013) (concluding that

Tennessee would apply Georgia sovereign immunity law as a matter of comity). Citing

the Lemons decision, the Sixth Circuit explained that “Tennessee will enforce a sister

state’s sovereign immunity to a defendant state entity so long as the other state’s rules are

not ‘contrary to the policy of Tennessee,’ as found in its constitution, statutes, and court

decisions.” Id. (quoting Lemons, 206 S.W.3d at 69).

Finally, we note that a federal district court in the State of Arkansas extended

comity and immunity to a Tennessee municipality in another case involving an auto

accident on a bridge between the two states. Harris v. City of Memphis, Tenn., 119 F.

Supp. 2d 893, 897 (E.D. Ark. 2000). The district court found that Arkansas and

Tennessee statutes were similar with respect to immunity and observed that “the

harmonious relationship between the two states would not be enhanced if this Court were

to ignore the immunity granted under Tennessee law simply because the accident

occurred a few yards on this side of the state line.” Id. at 896.

Here, the Mobleys are asking the State of Tennessee to resolve a case involving

two Arkansas plaintiffs and three Arkansas defendants. In response, the Arkansas

defendants have asked Tennessee’s courts to recognize their sovereign immunity and

decline to exercise jurisdiction over this action. The defendants have the better argument

with respect to this issue. Even though this accident allegedly occurred on “the

Tennessee side” of the bridge, Tennessee has little interest in litigating this dispute

involving only Arkansas parties. To use the words from Hall, it would be “wise policy,

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as a matter of harmonious interstate relations,” 440 U.S. at 426, to accord immunity to

the Arkansas defendants under these circumstances. The common law principles of

comity dictate that this dispute should be resolved by the available tribunal in Arkansas.

Sovereignty law in Arkansas is sufficiently aligned with the law in Tennessee such that

its application does not violate the public policy of Tennessee. Compare Greenwell, 180

S.W.3d at 291 (Tex. Ct. App. 2005) (“Given the policy of promoting amicable

relationships by recognizing a sister state’s law, the extent of the difference in the laws is

not so contrary to Texas public policy that we should refuse to enforce the Arkansas

law.”) In fact, the only difference in the laws that the parties to this case have mentioned

is the existence of a damage cap in Tennessee while Arkansas has none.

We also recognize that Tennessee has an interest in extending immunity by comity

in order to encourage Arkansas and other states to extend immunity to Tennessee in the

future. See, e.g., Sam v. Sam, 134 P.3d 761, 767 (N.M. 2006) (recognizing that “other

states will likely consider our decisional law on the subject of comity” and “may be

reluctant to extend immunity to our state if we have previously declined to extend

immunity to a sister state”); Greenwell, 180 S.W.3d at 292 (“under the doctrine of

comity, Texas will recognize the laws of other states with the expectation that those states

will extend Texas the same consideration”); Levert, 857 So.2d at 622 (“By extending

comity to a sister state, other states will be more likely to honor Louisiana’s sovereign

immunity laws when litigation arises within their forums in the future.”) We therefore

affirm the trial court’s decision to decline to exercise its jurisdiction based on the

principle of comity.

IV. CONCLUSION

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

of this appeal are taxed to the appellants, Vicki and Charles Mobley, for which execution

may issue if necessary.

_________________________________

BRANDON O. GIBSON, JUDGE

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