1 See Appendix for list of Appellee s. Al Hanco ck and M arty Hanco ck, the paren ts of Hunter W . Hancoc k, did not file a brief on appeal.



### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE June 2000 Session EDWARD F. C

URTIS v. STEP

HEN T. NASH,

et al. Direct Appeal from the Circuit Court for Knox County No. 1-703-98 Dale C. Workman, Judge FILED SEPTEMBER 20, 2000
No. E1999-01135-COA-R3-CV

This appeal arises in the Knox County Circuit Court from a grant of a motion for summary

judgment. Edward F. Curtis appeals the grant of summary judgment. We affirm the jud gmen t of the Trial Courtand remand for such further proceedings as may be necessary consistent with this opinion. We a dju dge c ost s of app eal agai nst Mr. Cur tis and his sur ety.
Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Affirmed and Remanded
H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and C HARLES D. S USANO , J R
. , JJ., joined. Thomas R. Henley

, Knoxville, Tenness

ee, for the appe

llant, Edward F.

Curtis. See appendix for list of attorneys for appellees and Pro Se litigants.

OPINION This appeal arises from a grant of summary judgment by the Knox County Circuit Court in favor of the Appellees 1 . Edward Curtis, the Appellant, presents one issue on appeal, which we restate: wh ether the Trial Court erred in interpr eting Tennes see Code Ann otated § 37 -10-101 th rough § 37-10-103, which is the Liability of Parent or Guardian for A cts of Juveniles statute, an d thus, erred in granting

summary judgment to the parents of the juveniles, the Appellees, on the basis of their affidavits that th

ey did not kno

w of their children's tendency to commit wrongful acts that can be expected to cause injury to persons or property

.2 Some of the Appellees n ote that Mr. Curt

is waited t

hree years t

o file an act

ion under this

statute.
3 From the record it appears each of the juveniles paid restit ution of $200 each. -2- The Trial Court granted summary judgment in fa v or of the Appellees. We affirm the judgment of the Trial Court and remand for such further proceedings as may be necessary consistent with this opinion.

App aren tly, the Appellees' juvenile sons enter ed property owned by Mr. Curtis at 5811 Sunset Drive in Kno xville, Tennessee.

Mr. Curti s maintains t

hat the juveniles entered the premises sometime between November 14, 1995 and November 17, 1995 and damage d the house andits contents. One juveni l e was apprehended on the property on or about November 17, 1995 andhe implicated the other Appellees' sons. Mr. Curtis claims that th e damage to the

house and its contentstotal more than $20,000. According to Mr. Curtis, the damage consisted of broken internal andexternal doors and windows; damage to interior walls and carpets; personal property broken and strewn about; paint splattered about ; pers onal papers, including stock certificates, and clothing damaged or destroyed; and coins and money taken. 2

As a result

of a Juvenile Court proceeding, the Appellees' sons were required to pay restitution totaling $2,000. 3

Mr. Curti s later filed the instant action under Tennessee Code An notated § 37-10-101 , which is the Liability

of Parent or Guardian for Acts of Juveniles statute. Mr. Curtis explains that he does not know which juvenile entered the property on which day nor does he know what

specific damage was done by each one on which occasion. However, he contends that each of the juveniles entered the property on one or more of t hos e days in November and di d do damage to the

property and/or to the contents of t

he house. Mr. Curti

s alleges that th

e Appe llees "knew or should have known of their minor's

tendency to

commit wrongful a

cts which could be expected to cause injury to pro pert y, and each D efendant had an opportunity t

o control their mino

r but failed to exer

cise reasonable

means to restrain the tortious co nduct." He insists that some or all of the juveniles committed multiple offenses by entering the property and causing damage on s eve ral occasions during the period from November14, 1995 through November 17, 1995.

Mr. Curtis's argument is that the relevant statute in this case

creates both

a contract liability and a separate

tort liability . He argues tha t Tennessee Code

Annotate d § 37-10-1 01 imposes a co ntractual du ty on parents and guardians to pay for damages done by their children-3-

whether maliciously or willfully . He maintains that the use of the word assumpsit in Section 37-10- 101 creates a contract cause of action, and therefore, parents or guar dians "are liable as if they had made a promise to pay

for the damage

done by thei

r children." He further asserts that "[i]f a minor child hurts somebody or damages something, whether it is malicious or simply wilful [sic], the parentsare liable under

Section 101 rega

rdless of their

knowledge or duty of care." He insists that Section 37-10-101 is

contract law, and Section 37-10-103 is tort law. Therefore, Section 103 is not a defense to Section 101, but rather "a separate and distinct tort cause of action based on the paren t's knowledge or lack of it and exercise of reasonable care or not."

Mr. Curtis asserts that MCI Telecommu nicati ons Corporation v. B onnell , an unreported

opinion of this Court,

filed in Nashville on March 8, 1989, misinterprets the statute. He argues that

the Court's finding that "Sections 101 and 103 must be read together and that Section 103 is a defense to Section 101 simply cannot be true" because "then the purpose of the statute to make parentspay for the destructive acts of their minor children is totally defeated." He contends that "[i]f the parents or guardians can invoke the 'knowledge defense' of Section 103 to a contract cause of action under Section 101, then Section 101 is meaningless and void." He further insists that "[t]he only way to win a case under Section 103 would be t o invoke the presumption under 103(b) by proving that the children

had been previou

sly convicte

d in juvenile

court, andthis is impossible since juvenile court records are strictly confidential and not admissible."

All the Appellees used for their defense Tennessee Code Annotated § 37 -1 0-103, which they contend provides a defense of the liability imposed in Tennessee Code Annotated § 37- 10-101, citing the MCI case. They maintain that they ar e notstrictly liab

le for wrongfu

l acts of their children, and are not liable for the wrongf

ul acts of their children unless they knew or should have known of their children's tendency to commit such acts.

A Trial Court's de

cision to grant a

motion for summary

judgment is n

ot entitled to a presumption of correctness on appeal. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Thi s Courtdetermines whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been met. Mason v. Seaton , 942 S.W.2d 470, 472 (Tenn. 1997).

An evaluation of a summary judgment motion must address the following: "(1) whether a factualdispute exists; (2) whether the disputed fact is material to the outcome of the case; and(3) whether the disputed fact creates a genuineissue for trial." Byrd v. Ha

ll , 847 S.W.2d 208, 214 (Tenn. 1993 ) (emphasis in original ). When con sidering a motion for summary judgment, the evidence must be viewed in a light most favorable to the nonmoving party, and all reas o nable-4-

inferences must be made in the nonmoving party's favor

. Byrd , 847 S.W.2d at 210.

The Liabil

ity of Parent or Guardian for Acts of Juveniles statute provides the following:
37-10-101. Recovery f or injury or

damage by

juvenile .--Any municipal corporation, county, town, village, school district or department of this state, or any person, or any religious organization, whether incorporated or unincorporated, shall be entitled to recover damages in an action in assumpsit in an amount not to exceed ten thousand dollars ($10,000) in a court of competent jurisdiction from the parents or guardian of the person of any minor under eighteen (18) years of ag e, living with the parents or guardian of the person, who maliciously or willfully causes per sonal injury to such person or destroys property, r eal, personal or mixed, belonging to such municipal corporation, county, township, village, school district or department of this state or persons or religious organizations.
37-10-102. Limitation on amount of recovery .--The recovery shall be limited to the actual damages in an amount not to exceed ten thousand dollar

s ($10,000) in addi

tion to taxable cour

t costs.
37-10-103. Circumstances under which parent or guardian liable .-- (a) A parent or guardian shall be liable for the tortious activities of a min

or child that caus

e injuries to perso

ns or property where the par ent or guardi an knows, o r should kn ow, of the ch ild's tendency to

commit wrongful a

cts which can be e

xpected to cause injury to persons or property and wher e the parent or guardian has an opportunity

to control the child

but fails to exercis

e reasonable means to restrain

the tortious conduc

t. (b) A parent or guardian shall be presumed to know of a child's tende

ncy to commit w

rongful acts, if

the child has prev

iously been charged and found responsible for such actions.

The parents' affi

davits establish, in

each case, tha

t they did not"know[ ]" and had no reasonto know of their ch ild's "tendenc

y to commit wrongful a

cts which can be expe

cted to cause-5-

injury to persons or property." See T.C.A. 37- 10-103(a). These affid avits trigge red the Appe llant's obligation to bring forth

facts to show that thereare genuine is sues of material f act as to the pare

nts' T.C.A. 37- 10-103(a ) defense. Since they failed to do so, summary judgment is appropriate. The affidavits, uncontroverted, make out a defense to the Appellant's cause of action.

Based on the foregoing, we believe that there are no genuine issues of material fact which must be determined by trial. The

judgment of the T

rial C ourt is affirmed,

and the cause is remanded for such further proceedings as may be nec

essary con

sistent with this opini

on. Costs of app eal are a dju dged agai nst Edw ard F . Cu rti s an d hi s su ret y.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE