                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                JANUARY 25, 2008 Session

                  JOSH W. NEWELL v. JEFF MAITLAND, ET AL.

                  Direct Appeal from the Circuit Court for Gibson County
                       No. 8226    Donald Paul Harris, Senior Judge



                     No. W2007-01704-COA-R3-CV - Filed May 21, 2008


This appeal involves a negligence action filed after the plaintiff was charged with child rape. The
plaintiff sued the sheriff’s deputy and Department of Children’s Services employee who interviewed
the alleged victim; the sheriff; the county mayor; the county itself; a Department of Children’s
Services supervisor; and the District Attorney General. The plaintiff contended that if a “child
protective team” had interviewed the victim, he would not have been arrested and charged with child
rape. The trial court dismissed the claims against the state employees for lack of jurisdiction, and
it dismissed the claims against the county employees pursuant to the Tennessee Governmental Tort
Liability Act, Tenn. Code Ann. § 29-20-101, et seq. The sheriff’s deputy was also named as a
defendant in his individual capacity, and the trial court granted his motion for summary judgment.
The plaintiff appeals. We affirm.



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

Sam J. Watridge, Humboldt, TN, for Appellant

James I. Pentecost, Jon A. York, Brent S. Usery, Jackson, TN, for Appellees, Gibson County, Joe
Shepard, Ronnie Riley and Jeff Maitland

Robert E. Cooper, Jr., Attorney General and Reporter, Douglas Earl Dimond, Senior Counsel,
Nashville, TN, for Appellees Perry Sharpe and Beth Dudley

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Heather
C. Ross, Senior Counsel, Nashville, TN, for Appellee District Attorney General Garry Brown


                                            OPINION
                                    I. FACTS & PROCEDURAL HISTORY

         On October 12, 2005, Josh Newell (“Plaintiff”) was arrested by Gibson County Sheriff’s
deputies and charged with rape of a child. The eleven-year old alleged victim had been interviewed
earlier that day by Sheriff’s Deputy Jeff Maitland and Perry Sharpe, an employee of the Tennessee
Department of Children’s Services (“DCS”). Initially, the victim insisted that she could not
remember the alleged incident, but eventually she told the interviewers that the incident did occur.
Plaintiff entered a plea of nolo contendere to the offense of aggravated assault, and the child rape
charge was dismissed.

        On October 11, 2006, Plaintiff filed this lawsuit naming as defendants Deputy Maitland, Mr.
Sharpe, Gibson County, the Gibson County Sheriff, the Gibson County Mayor, a DCS Supervisor,
and the District Attorney General. Plaintiff alleged negligence in the investigation and interviews
leading to his arrest, and he claimed that the prosecution against him was maliciously initiated and
pursued because the defendants knew or should have known the rape allegations were false.1
Plaintiff claimed that Deputy Maitland and Mr. Sharpe were negligent in interviewing the victim
because they allegedly failed to acknowledge her statements that she could not remember the
incident and coerced her into making untrue allegations. Plaintiff claimed that Tennessee Code
Annotated section 37-1-607 requires that a Child Protective Team investigate child sexual abuse
cases, and that Deputy Maitland and Mr. Sharpe should have ceased interviewing the victim and
“called in” the Child Protective Team. Plaintiff alleged that “if Gibson County had a Child
Protective Team in place to interview the alleged victim in the case against the Plaintiff[,] an arrest
warrant would not have been issued for his arrest and charges would not have been brought against
the Plaintiff.” Plaintiff accused Deputy Maitland of fabricating evidence to obtain the arrest warrant.

        Plaintiff named the District Attorney General, Garry Brown, and a DCS Supervisor, Beth
Dudley, as defendants, alleging that they had failed to appoint or create a Child Protective Team for
Gibson County. He also alleged, upon information and belief, that Ms. Dudley participated in the
investigation and had an ulterior motive of harming Plaintiff’s father, a local judge. Plaintiff alleged
that the Gibson County Sheriff, Joe Shepherd, was negligent by failing to ensure that Deputy
Maitland was properly trained to investigate cases involving minor children. Plaintiff also claimed
that he was damaged by the negligent actions of the Gibson County Mayor, Ronnie Riley, in that he
allegedly failed to provide proper funding for training Deputy Maitland. Plaintiff also named Gibson
County as a defendant, alleging that it was vicariously liable for the acts of its employees.




         1
            The complaint simply lists “Count I – Compensatory Damages” and “Count II – Punitive Damages.” At a
later hearing, Plaintiff’s attorney clarified that his claim was not one for malicious prosecution, but for negligence.


                                                         -2-
       Plaintiff claimed the allegedly negligent actions were operational in nature, therefore the
defendants’ governmental immunity was removed. He sought compensatory and punitive damages.2

        Relevant to the facts of this case, Title 37, Chapter 1, Part 4, Tennessee Code Annotated,
entitled “Mandatory Child Abuse Reports,” provides as follows:

                  § 37-1-403. Reporting of brutality, abuse, neglect or child sexual
                  abuse.
                  ...
                  (c)(1) If a law enforcement official or judge becomes aware of known
                  or suspected child abuse, through personal knowledge, receipt of a
                  report, or otherwise, such information shall be reported to [DCS]
                  immediately and, where appropriate, the child protective team shall
                  be notified to investigate the report for the protection of the child in
                  accordance with the provisions of this part. Further criminal
                  investigation by such official shall be appropriately conducted in
                  coordination with the team or [DCS] to the maximum extent possible.
                  ...

                  § 37-1-405. Reference of reported cases to local director – Notice
                  to judge.
                  (a)(1) All cases reported to . . . state or local law enforcement officers
                  shall be referred immediately to the local director of the county office
                  of [DCS] for investigation.
                  ...
                  (b)(2) If the case appears to involve severe child abuse as defined in
                  § 37-1-102, including child sexual abuse, the county director of
                  [DCS] shall immediately notify and consult with the district attorney
                  general where the harm occurred, and the district attorney general
                  may take such action as the district attorney general deems
                  appropriate . . . . Whenever there are multiple investigations, [DCS],
                  the district attorney general, law enforcement, and, where applicable,
                  the child protection team, shall coordinate their investigations to the



         2
            In the section of Plaintiff’s complaint entitled “Count II - Punitive Damages,” he alleged that the defendants’
failure to refer the case to a Child Protective Team resulted in irreparable harm and “a violation of due process,”
although he did not set forth a separate claim for a violation of his due process rights. His complaint also requested “an
injunction which prohibits interviews of children involved in sexual abuse cases by law enforcement who are not on
the Child Protective Team.” Plaintiff’s appellate brief describes his case against the defendants as one “for negligence,”
and he does not mention a due process claim or request for injunctive relief. Therefore, on appeal, we will not address
whether Plaintiff was entitled to such relief. It is not the function of the appellate court to research and construct the
parties’ arguments, and we are under no duty to consider issues not argued in the brief. Newcomb v. Kohler Co., 222
S.W.3d 368, 400 (Tenn. Ct. App. 2006); Bean v. Bean, 40 S.W.3d 52, 56 (Tenn. Ct. App. 2000).


                                                           -3-
              maximum extent possible so that interviews with the victimized child
              shall be kept to an absolute minimum. . . .
              ...

              § 37-1-406. Availability for receiving reports – Commencement
              of investigations – Examination and observation of child –
              Reports – Services provided.
              (a) [DCS] shall be capable of receiving and investigating reports of
              child abuse twenty-four (24) hours a day, seven (7) days a week. The
              county office shall make a thorough investigation promptly after
              receiving either an oral or written report of harm. . . .
              (b) In cases involving child sexual abuse, the investigation shall be
              conducted by a child protective investigation team as defined in §
              37-1-602 relative to child sexual abuse pursuant to the provisions of
              § 37-1-606. . . .
              ...
              (l) The legislative intent of this section is to protect the legal rights of
              the family in an investigation and to ensure that no activity occurs
              that compromises [DCS]’s child abuse investigation or any ongoing
              concurrent criminal investigation conducted by law enforcement.
              ...

Title 37, Chapter 1, Part 6, Tennessee Code Annotated, entitled “Child Sexual Abuse,” further
provides, in pertinent part:

              § 37-1-602. Part definitions – Harm to child’s health or welfare.
              (a) For purposes of this part . . . (2) “Child protection team” means
              the investigation team created by § 37-1-607; . . . .

              § 37-1-605. Reports of known or suspected child sexual abuse –
              Investigations
              ...
              (b)(2) If a law enforcement official or judge becomes aware of known
              or suspected child sexual abuse, through personal knowledge, receipt
              of a report or otherwise, such information shall be reported to [DCS]
              immediately and the child protective team shall be notified to
              investigate the report for the protection of the child in accordance
              with the provisions of this part. Further criminal investigation by such
              official shall be appropriately conducted.
              ...

              § 37-1-606. Departmental availability for receiving reports –
              Commencement of investigations – Institutional abuse.


                                                  -4-
(a) [DCS] shall be capable of receiving and investigating reports of
known or suspected child sexual abuse twenty-four (24) hours a day,
seven (7) days a week. If it appears that the immediate safety or
well-being of a child is endangered, that the family may flee or the
child will be unavailable for purposes of conducting a child protective
investigation, or that the facts otherwise so warrant, [DCS] shall
commence an investigation immediately, regardless of the time of day
or night. In all other child sexual abuse cases, a child protective
investigation shall be commenced within twenty-four (24) hours of
receipt of the report.
...

§ 37-1-607. Child protective teams – Investigations – Services.
(a)(1) [DCS] shall coordinate the services of child protective teams.
At least one (1) child protective team shall be organized in each
county. The district attorney general of each judicial district shall, by
January 15 of each year, report to the judiciary committees of the
senate and house of representatives on the status of the teams in the
district attorney general’s district as required by this section, and the
progress of the child protective teams that have been organized in the
district attorney general’s district. . . .
(2) Each team shall be composed of one (1) person from [DCS], one
(1) representative from the office of the district attorney general, one
(1) juvenile court officer or investigator from a court of competent
jurisdiction, and one (1) properly trained law enforcement officer
with countywide jurisdiction from the county where the child resides
or where the alleged offense occurred. The team may also include a
representative from one (1) of the mental health disciplines. It is in
the best interest of the child that, whenever possible, an initial
investigation shall not be commenced unless all four (4) disciplines
are represented. An initial investigation may, however, be
commenced if at least two (2) of the team members are present at the
initial investigation. In those geographical areas in which a child
advocacy center meets the requirements of § 9-4-213(a) or (b), child
advocacy center directors, or their designees, shall be members of the
teams under this part and part 4 of this chapter for the purposes of
provision of services and functions established by § 9-4-213 or
delegated pursuant to that section. . . .
(3) It is the intent of the general assembly that the child protective
investigations be conducted by the team members in a manner that
not only protects the child but that also preserves any evidence for
future criminal prosecutions. It is essential, therefore, that all phases
of the child protective investigation be appropriately conducted and


                                  -5-
that further investigations, as appropriate, be properly conducted and
coordinated.
(b)(1) [DCS] shall convene the appropriate team when a report of
child sexual abuse has been received. . . . The role of the teams shall
be to conduct child protective investigations of reported child sexual
abuse and to support and provide services to sexually abused children
upon referral as deemed by the teams to be necessary and appropriate
for such children.
(2) For each child sexual abuse report it receives, [DCS] shall
immediately notify the child protection investigation team, which
shall commence an on-site child protective investigation. The team
shall:
         (A) Determine the composition of the family or household,
         including the name, address, age, sex and race of each child
         named in the report; any siblings or other children in the same
         household or in the care of the same adults; the parents or
         other persons responsible for the child's welfare; and any
         other adults in the same household;
         (B) Determine whether there is any indication that any child
         in the family or household is sexually abused, including a
         determination of harm or threatened harm to each child; the
         nature and extent of present or prior injuries, or abuse, and
         any evidence thereof; and a determination as to the person or
         persons apparently responsible for the abuse;
         (C) Determine the immediate and long-term risk to each child
         if the child remains in the existing home environment; and
         (D) Determine the protective, treatment and ameliorative
         services necessary to safeguard and ensure the child's
         well-being and development and, if possible, to preserve and
         stabilize family life.
The team shall seek to interview the child in a neutral setting, other
than where the alleged abuse occurred, whenever possible.
(3) Immediately upon receipt of a report alleging, or immediately
upon learning during the course of an investigation, that:
(A) Child sexual abuse has occurred; . . . [DCS] shall orally notify the
team, the appropriate district attorney general and the appropriate law
enforcement agency whose criminal investigations shall be
coordinated, whenever possible, with the child protective team
investigation. . . . If independent criminal investigations are made,
interviews with the victimized child shall be kept to an absolute
minimum and, whenever possible, reference to the videotape or tapes
made by the child protective teams should be utilized.
...


                                  -6-
         All defendants moved to dismiss. The “County Defendants,” including Deputy Maitland,
Sheriff Shepherd, Mayor Riley, and Gibson County, also moved for summary judgment. Senior
Judge Donald P. Harris was assigned to hear the case by order of the Tennessee Supreme Court.
Judge Harris held a hearing on the motions on June 22, 2007, and announced his ruling from the
bench. An order incorporating his oral ruling was entered on July 9, 2007. Plaintiff’s claims against
the “State Defendants” (Mr. Sharpe and Ms. Dudley from DCS, and the District Attorney General,
Garry Brown) were dismissed because the trial court found it lacked jurisdiction to hear such claims.
Plaintiff’s claims against the County Defendants in their official capacities were also dismissed on
the basis that Tennessee Code Annotated section 29-20-205(5) provides immunity to governmental
entities for injury caused by a negligent act or omission of an employee if the injury arises out of “the
institution or prosecution of any judicial or administrative proceeding, even if malicious or without
probable cause.” Plaintiff had also named Deputy Maitland as a defendant in his individual capacity,
and upon considering Plaintiff’s subsequent plea of nolo contendere to the offense of aggravated
assault, the trial judge granted Deputy Maitland’s motion for summary judgment. Plaintiff filed a
timely notice of appeal to this Court.

                                       II. ISSUES PRESENTED

       The appellant has timely filed his notice of appeal and presents the following issues, as we
perceive them, for review:

1.      Whether the trial court had jurisdiction over the claims against the State Defendants;
2.      Whether the trial court erred in dismissing the claims against the County Defendants;
3.      Whether the trial court erred in granting summary judgment to Deputy Maitland.

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

                                    III.   STANDARD OF REVIEW

         A motion to dismiss for failure to state a claim only tests the sufficiency of the complaint,
seeking to determine whether the pleadings state a claim upon which relief can be granted.
Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002); Smith v. First Union
Nat. Bank of Tenn., 958 S.W.2d 113, 114-15 (Tenn. Ct. App. 1997). The basis for the motion is
that the allegations in the complaint, when considered alone and taken as true, are insufficient to
state a claim as a matter of law because they do not constitute a cause of action. Smith, 958 S.W.2d
at 115 (citations omitted). In making this determination, we construe the complaint liberally in favor
of the plaintiff, taking all allegations of fact therein as true. Id. (citing Fuerst v. Methodist Hosp.
South, 566 S.W.2d 847, 848-49 (Tenn. 1978); Holloway v. Putnam County, 534 S.W.2d 292, 296
(Tenn. 1976)). However, “[t]here is no duty on the part of the court to create a claim that the pleader
does not spell out in his complaint.” Trau-Med, 71 S.W.3d at 704 (quoting Donaldson v.
Donaldson, 557 S.W.2d 60, 61 (Tenn. 1977)). Where “no claim for relief is stated by a party, a court
may properly dismiss the action, either on motion or sua sponte.” Donaldson, 557 S.W.2d at 62
(citations omitted).


                                                  -7-
        Summary judgment is appropriate only when there is no genuine dispute of material fact with
regard to the claim or defense asserted in the motion, and when the moving party is entitled to a
judgment as a matter of law. Burgess v. Harley, 934 S.W.2d 58, 62 (Tenn. Ct. App. 1996) (citing
Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Anderson v. Standard Register Co., 857 S.W.2d
555, 559 (Tenn. 1993)).

                                                IV. DISCUSSION

                                           A.    The State Defendants

        First, we will consider the claims against the DCS employees and the District Attorney
General in their official capacities. A suit against a state official in his or her official capacity is a
“suit against the state.”3 Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 229 (Tenn. Ct. App. 2000);
Greenhill v. Carpenter, 718 S.W.2d 268, 271 (Tenn. Ct. App. 1986) (citing Cox v. State, 217 Tenn.
644, 399 S.W.2d 776, 778 (1965)). “Historically, the doctrine of sovereign immunity has provided
that a sovereign governmental entity cannot be sued in its own courts absent legislative consent.”
Wells v. Tenn. Bd. of Regents, 231 S.W.3d 912, 916 (Tenn. 2007) (citing Hawks v. City of
Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997); Williams v. State, 139 S.W.3d 308, 311 (Tenn. Ct.
App. 2004)). The doctrine has both a constitutional and a statutory basis. Id. (citing Jones v. L &
N R.R. Co., 617 S.W.2d 164, 170 (Tenn. Ct. App. 1981)). Article I, section 17 of the Tennessee
Constitution provides in part that “[s]uits may be brought against the State in such manner and in
such courts as the Legislature may by law direct.” Tennessee Code Annotated section 20-13-102(a)
prohibits courts from entertaining suits against the State, absent waiver, and requires dismissal on
proper motion.

       The Tennessee Claims Commission has exclusive jurisdiction to determine all monetary
claims against the state based on acts or omissions of state employees falling within certain
categories, including:

                  (N) Negligent deprivation of statutory rights created under Tennessee
                  law, except for actions arising out of claims over which the civil
                  service commission has jurisdiction. The claimant must prove under
                  this subdivision (a)(1)(N) that the general assembly expressly
                  conferred a private right of action in favor of the claimant against the
                  state for the state’s violation of the particular statute’s provisions.

Tenn. Code Ann. § 9-8-307(a)(1)(N) (1999 & Supp. 2007). Therefore, even assuming that Plaintiff
could establish a violation of the statutes regarding child protective teams, and a private right of



         3
            “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) (1999 & Supp. 2007).


                                                          -8-
action for such violation, exclusive jurisdiction for his negligence claims against the State
Defendants is vested in the Tennessee Claims Commission.

      Nonetheless, Plaintiff argues that he could file his claims in circuit court, relying on
Tennessee Code Annotated section 9-8-404, which provides, in part:

               (a) Prior to hearing, upon the petition of either party showing the
               approval of the attorney general and reporter, the claim shall be
               removed to the appropriate chancery or circuit court with venue for
               handling in accordance with the provisions of this part, except the
               normal procedural rules of the court shall be applicable. Appeal from
               the chancery or circuit court shall be to the court of appeals.
               (b) The commission may transfer the action to the appropriate
               chancery or circuit court with venue on its own after a determination,
               in writing, by the commission that fair and complete resolution of all
               claims involved cannot be accomplished in administrative
               proceedings before the commission. Such transfers shall be limited
               to tort claims arising out of the same fact situation where much of the
               evidence to be presented would be admissible against the state and
               one (1) or more additional defendants. . . .

(emphasis added). Contrary to Plaintiff’s argument, this statute does not authorize a plaintiff to file
a claim in circuit court based upon his own decision of whether the claim can be resolved fairly
before the Claims Commission. A transfer pursuant to subsection (a) requires the consent of the
Attorney General and Reporter. “Subsection (b) authorizes, but does not mandate, the transfer of
claims in certain circumstances.” Mullins v. State, No. E2007-01113-COA-R9-CV, 2008 WL
199854, at *7 (Tenn. Ct. App. Jan. 24, 2008). Although a transfer pursuant to this statute “may be
likely in some cases, it is not a guaranteed certainty.” Id. The statute provides “discretionary
authority” to the Claims Commission to transfer a case, and the Claims Commission’s denial of a
motion to transfer is reviewed for abuse of discretion. Hungerford v. State, 149 S.W.3d 72, 76
(Tenn. Ct. App. 2003). Plaintiff’s argument that this statute allowed him to file his claims in circuit
court is without merit.

       Plaintiff also argues that the trial court had jurisdiction over his claims based upon the
Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101, et seq. The Tennessee
Governmental Tort Liability Act “governs claims against counties, municipalities, and other local
governmental agencies, but does not apply to state government.” Hawks v. City of Westmoreland,
960 S.W.2d 10, 14 (Tenn. 1997); see also Lucius v. City of Memphis, 925 S.W.2d 522, 525 (Tenn.
1996). Plaintiff’s arguments involving the State Defendants in their official capacities are without
merit.

        Although it is not mentioned in Plaintiff’s brief, we note that his complaint also contained
the following paragraph regarding Ms. Dudley, the DCS Supervisor for Gibson County:


                                                 -9-
                Plaintiff alleges that Beth Dudley in her official and individual
                capacities, at the time of the investigation into the allegations against
                the Plaintiff, was opposed to [Plaintiff’s] father Judge Robert Newell
                and that she, based upon information and belief, assisted in the
                investigation, but not as a member of the Child Protective Team, with
                the ulterior motive of harming Judge Robert Newell, by assisting in
                the prosecution of his son.

(emphasis added). As previously noted, “[s]tate 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) (1999 & Supp. 2007). To the extent that Plaintiff’s complaint
could be construed to allege willful conduct on the part of Ms. Dudley, we nevertheless conclude that
the complaint fails to state a claim for relief. Plaintiff does not allege that Ms. Dudley was not
authorized to participate in the investigation or that he was injured in any way by her participation.
Taking the allegations in the complaint as true, Plaintiff does not state a cause of action, and “[t]here
is no duty on the part of the court to create a claim that the pleader does not spell out in his
complaint.” Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 704 (Tenn. 2002). Thus,
Plaintiff’s claim against Ms. Dudley was properly dismissed.

                                    B.    The County Defendants

        Plaintiff’s complaint alleged that “if Gibson County had a Child Protective Team in place
to interview the alleged victim in the case against the Plaintiff[,] an arrest warrant would not have
been issued for his arrest and charges would not have been brought against the Plaintiff.” Plaintiff
contended that Deputy Maitland, Mayor Riley, and Sheriff Shepherd, acting in their official
capacities, were negligent in a manner that contributed to Plaintiff’s injury. Plaintiff also claimed
that Gibson County was vicariously liable for the other defendants’ allegedly negligent acts.

        “A suit against a governmental official in his official capacity is no different from a suit
against the governmental entity itself.” Bly v. Keesling, No. E2002-01115-COA-R3-CV, 2002 WL
31863297, at *6 (Tenn. Ct. App. Dec. 23, 2002); see also Cizick v. Bass, No. 02A01-9809-CV-
00244, 1999 WL 145209, at *2 (Tenn. Ct. App. W.S. Mar. 18, 1999). “Local governmental entities
are immune from suit except when the General Assembly has, by statute, explicitly permitted them
to be sued.” Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899, 906 (Tenn. Ct. App. 1992) (citing
Fretwell v. Chaffin, 652 S.W.2d 755, 756 (Tenn. 1983); Tenn. Code Ann. § 29-20-201(a)).
Tennessee Code Annotated section 29-20-205 begins by stating, “Immunity from suit of all
governmental entities is removed for injury proximately caused by a negligent act or omission of any
employee within the scope of his employment . . . .” However, the statute goes on to list several
exceptions to that rule. For example, immunity is not removed if the plaintiff’s injury arises out of:

                (1) the exercise or performance or the failure to exercise or perform
                a discretionary function, whether or not the discretion is abused; [or]


                                                  -10-
                 (2) false imprisonment pursuant to a mittimus from a court, false
                 arrest, malicious prosecution, intentional trespass, abuse of process,
                 libel, slander, deceit, interference with contract rights, infliction of
                 mental anguish, invasion of right of privacy, or civil rights; [or]

                 ...

                 (5) the institution or prosecution of any judicial or administrative
                 proceeding, even if malicious or without probable cause; . . . .

Tenn. Code Ann. § 29-20-205 (2000). Plaintiff’s brief only discusses the first exception to the
removal of immunity regarding discretionary functions, but the trial court based its decision on the
fifth exception, and we agree that it controls the issue before us. Plaintiff’s alleged injury clearly
arose out of the institution or prosecution of a judicial proceeding, so the County Defendants are
immune from suit in their official capacities even if the proceeding was instituted maliciously or
without probable cause. The claims against the County Defendants were properly dismissed.

                                             C.     Deputy Maitland

        Plaintiff’s final issue is whether the trial court properly granted summary judgment to Jeff
Maitland individually. Plaintiff’s sole argument as to why summary judgment was improper is that
Deputy Maitland’s motion for summary judgment was not accompanied by a statement of undisputed
material facts.4 Our Supreme Court recently emphasized “the importance of attorneys using Rule
56.03 statements of material facts to their fullest,” explaining that trial courts and appellate courts
should not be required to sift through the record to find any information that is essential to a
summary judgment decision. Bennett v. Trevecca Nazarene Univ., 216 S.W.3d 293, 299, n.4 (Tenn.
2007). However, a trial court, acting within its discretion, may waive the requirements of the rule
in an appropriate situation. Williams v. Watson, No. E2005-02403-COA-R3-CV, 2007 WL 187925,
at *10 (Tenn. Ct. App. Jan. 25, 2007) (citing Butler v. Diversified Energy, Inc., No. 03A01-9804-

       4
           Rule 56.03 of the Tennessee Rules of Civil Procedure provides, in pertinent part:

                           In order to assist the Court in ascertaining whether there are any material
                 facts in dispute, any m otion for summary judgment made pursuant to Rule 56 of
                 the Tennessee Rules of Civil Procedure shall be accompanied by a separate concise
                 statement of the material facts as to which the moving party contends there is no
                 genuine issue for trial. Each fact shall be set forth in a separate, numbered
                 paragraph. Each fact shall be supported by a specific citation to the record.
                           Any party opposing the motion for summary judgment must, not later than
                 five days before the hearing, serve and file a response to each fact set forth by the
                 movant either (i) agreeing that the fact is undisputed, (ii) agreeing that the fact is
                 undisputed for purposes of ruling on the motion for summary judgment only, or
                 (iii) demonstrating that the fact is disputed. Each disputed fact must be supported
                 by specific citation to the record. Such response shall be filed with the papers in
                 opposition to the motion for summary judgment.
                           ...


                                                         -11-
CV-00146, 1999 WL 76102, at *3 (Tenn. Ct. App. E.S. Jan. 28, 1999)). Here, Plaintiff did not even
raise the issue in the trial court that Deputy Maitland failed to file a statement of undisputed facts.
Therefore, we find no abuse of discretion in the trial court’s decision to grant summary judgment
without the benefit of a statement of undisputed facts.

       Plaintiff does not point to any disputed facts or cite any authority to suggest that Deputy
Maitland was not entitled to judgment as a matter of law; thus, we affirm the trial court’s grant of
summary judgment.

                                         V. CONCLUSION

       For the aforementioned reasons, we affirm the decision of the circuit court. Costs of this
appeal are taxed to the appellant, Josh W. Newell, and his surety, for which execution may issue if
necessary.




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




                                                 -12-
