concurring:
My colleagues debate well. Concluding that the complaint does not affirmatively show that the appellant may not have a case, I concur in the opinion prepared for us by Judge Carnes.
Now, perhaps, the fact contentions will be developed and, if they should not be in dispute, the court can rule on existing, and not merely alleged, facts. Then, that ruling will determine something of value to the litigants — the resolution of the disagreement.
That is, after all, what the judicial branch is said to be about.