Page:Aka v. Jefferson Hospital Association, Inc.pdf/18

644   summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (2000); ''Robert D. Holloway, Inc. v. Pine Ridge Add'n Resid. Prop. Owners'', 332 Ark. 450, 453, 966 S.W.2d 241, 243 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).

[15, 16] Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Dillard v. Resolution Trust Corp., 308 Ark. 357, 359, 824 S.W.2d 387, 388 (1992). If a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. ''Collyard v. American Home Ins. Co.'', 271 Ark. 228, 230, 607 S.W.2d 666, 668 (1980). Here, Dr. Washington claimed immunity from suit based upon her part-time state employment. Accordingly, our review must focus, first, on an issue of law, namely, whether the trial court properly granted Dr. Washington immunity, and, second, on whether there remains any genuine issue of material fact precluding summary judgment.

[17] Article 5, section 20, of the Arkansas Constitution provides that "Nile State of Arkansas shall never be made defendant in any of her courts." Ark. Const. art. 5, § 20, grants sovereign immunity and a general prohibition against awards of money damages in lawsuits against the State of Arkansas and its institutions. Cross v. American Livestock & Poultry Comm'n, 328 Ark. 255, 258, 943 S.W.2d 230, 232 (1997) (citing Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995); Fireman's Ins. Co. v. Arkansas State Claims Comm'n, 301 Ark. 451, 784 S.W.2d 771, cert. denied, 498 U.S. 824 (1990)). The doctrine of sovereign immunity is rigid, and, as such, the immunity may be waived only in limited circumstances. Id., 328 Ark. at 258–59, 943 S.W.2d at 232 (citing State v. Staton, 325 Ark. 341, 934 S.W.2d 478 (1996)). Thus, where the suit is one against the State and there has been no waiver of immunity, the trial court acquires no jurisdiction. Id.

Here, the trial court found that Dr. Washington was, at all relevant times, acting as a uninsured contract employee by supervising family-practice residents for the State of Arkansas. Accordingly, she was granted immunity from suit. Appellant counters that Dr. Washington wore at least two "hats" on the evening Mrs. Aka died. As a result, he posits that the question of which hat Dr. Washington