dissenting.
For the reasons set forth below, I respectfully dissent.
I. “LAW OF THE CASE” AND SOVEREIGN IMMUNITY
The majority makes a serious error when it holds that the “law of the case” as established by the Court of Appeals forecloses the sovereign immunity defense in subsequent appeals of the case sub judice. Such a holding ignores the breadth and importance of the sovereign immunity defense for agencies and officials of the Commonwealth.
The majority opinion cites no case in which the sovereign immunity defense has been foreclosed by application of the “law of the case”. We should not now establish this dangerous precedent. Although the majority alleges that Dean Stephenson was sued in his individual and not official capac*617ity, it does not dispute the fact that the Board of Trustees is an entity that would otherwise be entitled to the sovereign immunity defense but for the “law of the case” rule.
We have always held that the sovereign immunity defense is a constitutional protection that can be waived only by the General Assembly and applies regardless of whether the defense was pled in an answer or even relied upon. Wells v. Corn., Dept, of Highways, Ky., 384 S.W.2d 308 (1964). (Emphasis Supplied). Thus, until today sovereign immunity could not be waived by an application of the “law of the case” or by failure to plead such affirmative defense or by the failure to properly preserve it for appellate review to this Court.
In point of fact, sovereign immunity cannot be waived through the negligence, intentional act or stipulation of an employee, an agency, or a department of the Commonwealth of Kentucky nor any attorney representing any of these enumerated individuals or entities.
In the case at Bar, the majority has created a judicial exception to Section 231 of the Kentucky Constitution wherein the “law of the case” can be used to create a waiver of sovereign immunity. This is the province of the General Assembly, it is not for the judiciary to erode this historical protection. Our Constitution does not provide for this unnecessary judicial intrusion. Under the authority of Union Light, Heat & Power Company v. Blackwell’s Adm’r., Ky., 291 S.W.2d 539 (1956), this Court should not allow the clearly erroneous decision of the Court of Appeals to establish a waiver of sovereign immunity.
II. OFFICIAL CAPACITY OF DEAN STEPHENSON
The majority opinion contends that Dean Stephenson was sued in his individual capacity in spite of overwhelming evidence to the contrary. No where in any of the pleadings of this lengthy litigation is there ever any reference to John B. Stephenson being sued as an individual or that he was sued in any other than his official capacity as Dean when he denied Hayse tenure. The initial complaint, as well as the subsequently amended complaints, sought recovery against “Dean” Stephenson and the Board of Trustees, both public entities deserving of sovereign immunity protection.
The jury instructions did not identify John B. Stephenson as an individual defendant rather, they referred to him as “Dean” Stephenson. Also, and contrary to the position of the majority, the jury instructions provided that Dr. Hayse could only be awarded compensatory relief if the jury found against both Dean Stephenson and the Board of Trustees. Clearly, this was an improper instruction. There was ■an instruction tendered to the jury which would have allowed the jury to give punitive damages against Dean Stephenson if it found that Dean Stephenson acted willfully, deliberately, maliciously, or with reckless disregard of Dr. Hayse’s constitutional rights, however, the jury found that such punitive relief should not be awarded.
Accordingly, I would affirm that portion of the Court of Appeals’ Opinion which held that there is “nothing in the record to lead us to believe that Stephenson was sued in his individual capacity. Thus, he would be protected by the same sovereign immunity as the Board, and has no liability for monetary damages.”
III. SUFFICIENCY OF THE EVIDENCE
The trial court, was correct when it issued a judgment notwithstanding the verdict because the evidence was compelling that Dr. Hayse’s promotion would have been denied anyway even if there had been no consideration of impermissible factors. It was undisputed that Dr. Hayse’s application for tenure was treated in exactly the same way as every other similarly situated professor.
The majority is correct when it asserts that the Board of Trustees and Dean Stephenson had the burden of persuading a jury that Dr. Hayse’s promotion would have been denied anyway. Although the jury apparently believed that the Board of Trustees and Dean Stephenson did not *618meet this burden, the trial judge, clearly did. Where the record shows, as it does here, that only one fair and reasonable conclusion can be drawn from the evidence, the case should not be submitted to the jury. Crest Coal Company, Inc. v. Bailey, Ky., 602 S.W.2d 425 (1980).
Indeed, it was manifestly clear that Hayse would have been denied tenure. As found by the trial court, at the time Hayse applied with the University of Kentucky he stated that he expected to complete his Ph.D. in 1972, but he did not complete it until four years later. Between 1972 and 1976, Hayse was repeatedly warned and counseled about his slowness in completing the Ph.D. requirements. Additionally, Dean Stephenson and Dr. Robert 0. Evans, Hayse’s boss, on several occasions, expressed concern to Hayse over his failure to produce scholarly work or get anything published. This is evidenced by the fact that between August 1971 and June 1978, Hayse published no scholarly works.
The Board of Trustees and Dean Stephenson presented numerous witnesses during the six day trial of this action which provided the basis for the trial court’s findings of fact when it issued its judgment notwithstanding the verdict. Even if there was a procedural defect in the University’s handling of Hayse’s promotion, the outcome would have been the same if no procedural defect had existed. Hayse was not discriminated against under any standard and his federally protected rights were not violated.
GANT and WINTERSHEIMER, JJ., join in this dissent.