### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE D ec em be r 4, 200 3 S es sio n

SA MU EL TIM OTHY CO LLIN S v. KNO X C OUN TY, TEN NES SEE , et al

Appeal f romthe Circ uit Court for Knox County No. 03-90-01 Whee ler A. R osenbalm, Judge

F ILED FEBRUARY 25, 2004

No. E2003-01421-COA- R3-CV

This appea l arises out of a complaint filed by

the Ap p el l an t, Samuel TimothyColli ns, ag ainst the Ap pe lle e , N B C B a nk , f

or da ma g e s h e a lle g e dly

inc ur re d a s a c on se qu e nc e of

hi s erro neo us arr e st and inca rce ration by

the Knox C ounty

Sheriff’ s Depa

rtment. We aff

irm the judgme nt of

the Trial Court.
Tenn. R. App . P . 3 Appeal as of Right ; Judgme nt of th e Circ uit Court Aff irm ed ; Ca use Rem anded

H OUS TON M. G O D D A RD , P.J ., delivere d the opinion of the court, in which D. M I CH A EL S WI NEY , J
., joined. Charles D. Susano, Jr., J ., filed a c oncurring opinion.

John K. Ha

rb e r, Kn oxvil le , T e nn e sse e , f or the Ap pe lla nt, Sa mue l T imo thy Col lin s
Arthur G. Seymour, J r. and Robert L . Kahn, Knoxville, Tennessee , for the A ppellee, N BC B ank

OP IN ION

I n Fe bruary of 2000 the Knox County Sheriff’ s Depa rtment held an outstanding w arr ant for the ar rest of a n individual named Timothy L . Colli ns (her einaf

ter “ the fu gi t i v e C ollins”) for insurance fraud. The fug itive Coll ins retained a n acc ount at NB C B ank (her einaf ter “NB C” or “the Ba nk”) a nd it appear s that a che ck had be en is sued on such account i n association with the alleg ed in su ranc e frau d. I n it s effo rtto lo cat e th e fugi ti ve C ol li ns , t he S heri ff’s Dep art men t n ot if ied NBC of its investiga tion and reque sted that it be notified should “Tim Colli ns” appear at any of the B ank’s br a nc h lo c a tio ns

.
There afte r, Samuel Timothy Colli ns (her einaf ter “the Appellant ”), who also held an a ccount at NB C, was pre sent at one of the B ank’s br anche s to deposit his pay chec k. The teller waiting on the Ap pe lla nt at th e tim e wa s a wa re of the She ri ff ’s De pa

rt me nt’ s re qu e st that it be no tif ie d if “ Ti m Colli ns” should appea

r. I n compliance with suc h reque st the teller stalled the A ppellant while the Ba nk notified the Sheriff ’s Department t hat “Tim Colli ns” wa s at the B ank. Af ter a brief pe riod of-2-

time Knox Countydeputies ar rived at t h e Ba nk and informe d the Appellant that ther e wa s an outstanding w arr ant for his a rre st. Appare ntly

both the Ba nk and the Appe llant ag re e t hat the deputies examined the Appellant’s driver license, radioed the information contained ther ein to the Sheriff Department’s office and were advised t hat t he identify ing information on the license and the i d en t i fy i n g information in the ar rest wa rra nt did not match. Never theless, the Appe llant was

arr ested, his pay chec k was c onfiscate d and his vehicle was impounded. The Appellant wa s then tr an s p o rt ed to the Knox Count y Detention ce nter whe re he was c lothed in prison ga rb and incar cer ated. TheAppellant wa s detained f or appr ox imately

five hours until the Sheriff ’s Depa rtment rea liz ed that he ha d b ee n m i s -i dentified a s the fug itive Coll ins where upon he wa s
re le a se d. L a te r o n th e sa me da y the Ap pe lla nt’ s auto mob ile a ndpa y c he c k w e re re turne d to him

.
I n F e br ua ry of 20 01 the Ap pe lla nt fi le d a compla int in the Kn ox Cou nty Cir c uit Cou rt a g a ins t Knox C ounty , Knox C ounty Sheriff Tim Hutchison, thre e unidentified Knox Countydeputies and NB C Bank. T he complaint alleg es that, due to the c ombined neg lige nce of the Def endants, the Appellant wa s falsely

arr ested a nd incar cer ated a nd his property was co n fi scate d. The c omplaint fu rt h eral l ege s t h at , as a r es u l to f t h e D ef en d an t s ’ a ct i o n s , t h e Ap p el l an t “s u ff er ed i n j u ri es i n cl u d i n g, but not lim ited to, the embar rassment a nd humili at i o n associate d with imprisonment, the loss of

re pu ta tio n an d est e e m amo ng his pe e rs a nd wi thi n his co mmu nit y , out- of -p oc ke t expe ns e s, a s w e ll as other inc idental and c onsequential da mag es....”

All of the De fenda nts named in the Appe llant’s co m p l ai n t filed motions for summary judgme nt. Subsequently , the Appellant voluntarily dismiss ed his cause of a ction ag ainst Knox County , Sheriff H utchison and the thre e unidentified K nox Countydeputies and t h e T ri al Court g ra nte d N B C B a nk ’s mot ion fo r s umm ary jud g me nt.
The sole issue upon a

ppeal is, as r estated, w hether the Trial C o u rt err ed in g ranting the B a nk ’s mot ion fo r s umm ary jud g me nt.

Th e sta nd ardg ov e rn ing ou r r e vie w o f a t ri a l c ou rt ' s d e c isi on to g ra nt s umm ary jud g me nt i s well settled under the law in this State. The trial c ourt' s judgme nt involves purely a question of law and, ac cording ly , it is not entitled to a presumption of cor rec tness. Carvell v. Bottoms, 900 S.W .2d 23 (Tenn. 1995) . Our sole t as k i n re v i ewing such a judg ment is to determine whe ther the require ments of Rule 56 of the Tenne ssee Rules of Civil Procedur e have be en met. Mason v. Se aton, 942 S.W .2d 470 (Tenn. 1997)

.
As set forth in By rd

v . H all , 847 S.W .2d 208 (Tenn. 1993) at pag e 214:

Rule 56 comes in t o play

only when ther e is no g enuine issue a s to any materia l fac t and the moving party is e ntitled to a judgme nt a s a matter of law. Thus, the issues that lie at t h e h ea rt of eva luating a summary

judgme nt motion are: (1) whether a factualdis pu te e xists ; ( 2) wh e the r the dis pu te d f a c t is materialto the outcome of the case ; and (3) whether the di sputed fac t cre ates a genuine issue for tr ia l. ( e mph a sis in o ri g ina l)-3-

I n i t s m o t i o n fo r s ummary judgme nt NBC asse rts that it “simplyobey ed the r equest for assistance by

the K n o x C o u n t y

Sheriff’ s Depa

rtment.” NB C’s motion further states that “ [t ]he decision t o arr est was that solely of t he Knox County Sheriff’ s Depa rtment. NB C did not request or

su g g e st [th e Ap pe lla nt’ s] arr e st, no r d id i t pe rs ua de or inf lue nc e the She ri ff ’s Dep art men t in i ts decision.” In light of the se fa cts, NB C contends that the Appe llant cannot sustain his cause of ac tion. I n s up po rt

of thi s c on te nti on NB C c ite s Hertzka v . Ellison , 8 Tenn. App. 667 ( 19 2 8 ) whe rein the Court stated as follows at pa g e 674:

One c annot be he l d liable for f alse imprisonment wher e he me rely informed a n office r of c ircumstances wh i ch arouse d his suspicions, but m ade no r equest or sug g estion that the suspecte d person be arr ested, a nd the officer
, o f h i s own
vo lit ion , ma de a n a

rr e st.

The Appellant arg ues that the rule set forth in Hertzka was subseque ntly expanded in Blue Star Se rvice
, Inc. v . McCurdy, 251 S.W .2d 139 (Tenn. Ct. App. 1952) a nd that, under the holding of thi s Co urt in the la tte r c a se , a de fe nd a nt i s li able fo r f

a lse arr e st i f the de fe nd a nt d oe s n ot e xer c ise

rea sonable dilig ence befor e setting in motion t he machinery which proxi mately cause s the arr est.

Under the fa cts in Star Servic e, Inc

. the pl aintiff’s car w as re possessed by a fina nce c ompany afte r he fe ll behind in pay ments. Pursuant to a prior a rra ng ement betwe en the f inance company

and the def endant pa rking lot owner, the f

inance company parke d the ca r on the de fenda nt’s lot and was issued a cla im check. A few d ay s l at er the plaintiff paid the f inance company

and wa s g iven the claim che ck f

o r th e c ar

. T h e f

in a n c e c o mp a n y th e n a d v is e d th e d e f e n d a n t th a t th e p la in ti f

f wa s
e nti tle d to po sse ssi on of

the c a r. Th e re a ft e r, the pla int if

f r e tr ie ve d h is c ar f

ro m th e de fe nd a nt’ s lo t; howeve r, the de fenda nt was appa rently unawa re tha t it was the plaintiff who ha d taken the car and attested that it had no rec ord of having rec eived the claim chec k. Acc ording ly , upon discovering that the ca r wa s no longe r on the lot, the defe ndant notified the police department that it had been stolen. The de fenda nt advised the police that he did not know whethe r the plaintiff ha d taken the c ar, but that the plaintiff had pa id the financ e compa ny and wa s entitled to possession upon presentation of the claim chec k. Pursuant to a re quest by the police that the de fenda nt make inquiries to verify the fac t that the car

had in fa ct bee n stolen, the defe ndant contac ted the fina nce c ompany for information wher eby it could contact the pla intiff. The fina nce c ompany advised the de fenda nt that the plaintiff did not have a te lephone a nd g ave the defe ndant the plaintiff’ s ho m e addre ss. Howeve r, the defe ndant did not attempt to contac t the plaintiff at his home and simply reported bac k to the police that the ca

r had be en stolen. Therea fter, the police located t he car being driven by the plaintiff who

was a rre sted, handc uffe d and take n to jail. Upon appea l to this Court we noted that, even thoug h the defe ndant was instruc ted by the police to make an inve s t i gation befor e they acte d upon the defe ndant’s re port that the car had been stolen, the defendant made no eff ort to contac t the plaintiff other than obtaining his mailing address. We also noted there was no evidenc e that the defenda nt g ave the police a de scription of the plaintiff or took prec autions to preve nt the arrest of the pla intiff sh ou ld h e be fo un d in po sse ssi on of the c ar. At

pa g e 14 2 w e state d a s f

oll ow s:-4- The e vidence compels the finding that there would have be en no ar rest but fo r the re po rt

of a sto le n c ar a ndthat de fe nd a nt kn ew that a ny on e fo un d in po sse ssi on wo uldbe arr e ste d o r d e ta ine d b y reas on of the re po rt , if

fo un d in possession. So it matters not whethe r defe ndant intended or not that plaintiff be

arr ested, be cause he intended or knew that somebody

would be ar

rested, if found in the car

.
Un de r the se c ir c ums ta nc e s de fe nd a nt ow e d the du ty of re a so na ble c are in

makin g a sto le n c ar r e po rt

.
We are compelled to obser ve that, unlike the de fenda nt in Star Service
, NB C Ba nk did not initiate the action which r esulted in the arr est in the prese nt case . NB C merely complied with the

re qu e st tha t it

no tif y the She ri ff ’s De pa

rt me nt s ho uld“ Ti m Co lli ns ” app e a r. A w arr a nt f

or the arr e st of the fug itive Coll ins was issued bef ore the Ba nk was ever contacted by the Sheriff ’s Depa

rtment and
, t h er ef

ore, the machinery

which proximately

cause d the Appellant’ s arr est was se t in moti on prior to NB C’s involvement.

The defen d an t i n Star Service , Inc. a tte mpt e d to re ly on the sa me pr ov isi on fr om Hertzka cited above by

NB C; however, this Court noted as f ollows at pag e :

I t a ppear s from the case s ci t ed i n t h e Hertzka case as we ll as in many others, that if the e vidence shows the offic er a cted o n h i s own volition, the informer is not li ab l e, but if he a cted unde r the dire ct or indirec t reque st of the informer the later will be held liable; and whe re the evidenc e is in dispute, it is for the jury

.
I n Hertzka the de fe nd a nt’ s r e po rt that th e c ar w a s st ole n c arrie d a n impli e d in dir e c t r e qu e st that the individual found in possession of the ca r be a rre sted. By contra st, in the prese nt matter there is no e v id e n c e th a t th e B a n k r e q u e s te d
, d ir e c tl y

o r in d ir e c tl y , th a t th e A p p e ll a n t o r th e fug itive Colli ns or any one else be ar rested.

Th is Cou rt ha s h ith e rt o s ta te d th a t “ Star Service stands for the proposition that one is subject to lia bil ity fo r f a lse arr e st w he re on e fi le s a c omp la int

wi th the po lic e wi tho ut e xer c isi ng re a so na ble

car e in reporting the crime.” Ross v. Gunther , a n u nr e po rt e d o pin ion of thi s Co urt f

ile d in Na sh vil le on Dec ember

17, 1986. NB C neither filed a complaint nor re ported a crime in this case

. The Appe llant contends that “it would have been pr udent for N BC B ank to verify whether or not there was more than one Timothy Colli ns that was an NB C Ba nk customer” and that, before

no tif y ing the She riff’s Dep art ment, th e B a nk ha d a du ty to m ake a

re a so na ble inv e sti g a tio n a s to whether the individual who appea red at the Ba nk wa s , i n fa ct, t he individual the Sheriff ’s Depa rtment was pur suing. H oweve r, the Sherif f’s De partment a lr e a d y

h ad information showing that the Appellant wa s not the person it was se eking . As previously noted, it is undisput ed that the Appellant pre sented the a rre sting de puties with identify ing info rm at i o n which did not match-5-

information identify ing the fug itive as set forth in the arrest warra nt. We further note the following testimonyof the Appellant rec ounting the observations of a Sheriff De partment e mploy ee during the time that the Appellant was being booked which provides additional conf irmation that the Sheriff’ s Depa rtment alre ady

had suff icient information to d e te rmine that the Appe llant was not the individual t h eywe re s ee k i n g:

A ... And then from there they took me t o a room probably not a whole lot bigg er tha n this with probably 25, 30 other pe ople in it, and that’s wher e I stay ed until they came and got m e to fing erprint me, and I g uess book me. Ithink then is when they

rea liz ed that I

was not who they

wer e looking for.

Q Who was it that realized that? What was the first indication ther e?
A They took me into the room where they did all the fing erprints and mug shots, and the g uy that was doing i t I noticed him looking at my paper work. And he said stand up a g ainst the wall and don’t move. I ’ll be right back, and I said , okay

. Well, he left and he ca me bac k with another of fice r and he said is that him? And the guy said, no, that’s not him. That guy’ s not – you know, he’s twice that guy’s size. That’s not him. (Emphasis adde d.)

No tw ith sta nd ing a ll the inf or ma tio n the She ri ff ’s De pa rt me nt al re a dy

ha d w he re by

it c ou ld have disting uished the Appe llant from the fug itive, the Appellant wa s arr ested.

The re cord shows tha t the Knox County deputies acted on their own volition in arr esting the Appellant without any

prompting by

NB C. Accor dingly
, we fi n d no merit in the Appellant’s arg ument that summary

judgme nt was inappropriate in this case.

Fo r t he for eg oing r easons we aff irm the judg ment of the Trial Court. Costs of appe al ar e
a d j u d g e d a g a i n s tS a m u e l T i m o t h y C o l l i n s a n d h i s s u r e t y.

_________________________________________ HOUSTON M. GO DDARD, PRESI DING JUDGE