### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE October 15, 2001 Se ssion SAM MIRABELLA, ET AL 

### . v. STATE OF TENNESSEE, ET AL 

### .

Appeal from the Tennessee Claims Commission No. 301901 Thomas G. Stovall , Claims Commissioner, by Designation

FILED FEBRUARY 5, 2002 No. E2001-00960-COA-R3-CV

This is a suit by S am Mir abel la and his son Charles Mirabella and their wives, seeking damages against the State of Tenne ssee and

the Unive

rsity of T ennesse e for da

mages inc

urred a s a result of the unlawful arrest of

both Mr. Mirabellas and

negligence resulting in injury to Sam Mirabella. The Trial Court found it did not have jurisdict ion to hear the unlawful arrest claim and awa rded damages for the injury to Sam Mirabella in the amount of $4528 a

nd to his wif

e inthe amount of $800. As to Sam Mirabella we modify the judgment to

increa se the awa

rd to the s um of $11,5 28 and as to his wife $1800. Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Claims Commissioner Affirmed as Modified; Cause Remanded
H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and C HARLE S D. S USANO , J R ., JJ., joined. Billy J. Stokes, Knoxville, Tenness ee, for the Appellants Sam Mirabella, Marie Mirabella, Charles Mirabell e and Joa

nne Mira bella Ronald C. Lea dbetter, Associate General Counsel, The University of Te nnessee, Knoxville, Tennessee, for the State of Tennessee a nd The University of Tennessee OPINION This is a suit by Sam Mirabella andhis wife Marie Mirabella, his son Charles Mirabella and Charles’s wife Joa

nne Mi rab ella against the State of Tennessee and the University of Te nnessee. The claim was initially filed with the Division of Claims Administration and thereafter transferred by it to the Claims Commission pursuant to T.C.A. 9-8-402(c). The Commissioner dismissed the claims of Charles and Joanne Mir abella, finding a s to Charles that the Commission did not have jurisdiction to enter taina claim for unlawful arrest, and as to his wi fe beca

use of hisdismissal o f the husb and’s cl aim.-2-

Although the Commissioner also dismissed the claim of Sam Mirabella for unlawful arrest, he did find that the police officer involved was negligent, and proc eede d to awar d Sam Mira

bella a judgment in the amount of $4528 and his wife Marie $800 for lost wages while her husband was convalescing. The Mirabellas appeal contending that the Court was in error in not entertaining their cla im for unlawful arrest

and that t

he damag es awar

ded to Sam a

nd Marie Mirabell a were inadequate. However, that record com es to u s with a presumption that the trial court’s factual findings are correct. Tenn.R.A

pp.P. 13(d

). We mus t honor tha

t presump tion unles s we find that the evidence preponderates agains t the tr ial court’s factual findings. Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s conclusions of law , howev er, are not accorded the same deference. Campbell v. Florida Steel Corp. , 919 S.W.2d 26, 35 (Tenn. 1996). The Commissione

r made f indings of

fact whi ch we at

t ach a s an Appendix. We have reviewed the record and conclude the evidenc e does not pr eponderate against the Trial Court’s factua l findings. As to the claims for unlawful arrest of both the father a nd the so n, we find the Trial Court acted properly in dismissing them bec ause the y are not set out in T.C.A. 9-8-307, which enumerates acts over which the Claims Commission has jurisdiction. As noted in the findings of fact, Sam Mirabella broke hi s right ankle as a result of the altercation, underwent therapy, had to stay at home “ close to a month,” and use a walker. Although he testif

ied that h is injury w as “fai

rly well healed,” hedoes experience nightmares where he is enga

ged in com

bat with a nother pe rson which he attr

ibutes to the conf rontation withthe University of Tennessee Police Officer. As a result he and his wife sleep in separate bedrooms. Our review of the damages sustained by Sam and Marie Mirabella persuades us that the evidence preponderates against the amount awarded by the Claims Commissione

r, which was only $3000 more than Mr. M irabella ’s medica l expense s, and as t

o Mrs. Mirabella was the amount of her lost wage s. We conclude that anappropr iateaward a s to Mr. Mir

abella w ould be $1 1,528 and as to Mrs. Mirabella $1800. Before concluding, we observe that the initial claim was filed by a letter dated September 16, 1993, and rec eived on S eptembe r 17, 1993 . It, as already noted, was subsequently transferred to the Claims Commission by notice which was received on December 14, 1993. On Septe mber 22, 1998, an order was entered by the Claims Commissioner requesting a status report “

regard ing read iness of c laim fo r hearing,” to which counsel for the University of Tennessee filed a response on October 16, 1998, affirming that, amo ng other t

hings, all discovery had been completed and the case was r eady for trial.-3-

On September 28, 1999, almost one year later, the Claims Commis sioner tr

ansfer red the c ase to the Administrative Procedure Division of the Office of the Secretary of State f or hearing by an Administrative Law Judge. The reason stated in the order of transfer was “to expedite a disposition of the claim.” The case was ultimately heard on September 7, 2000, and the or der dispo sing of the

claim was filed on January 24, 2001. While there may have been

a good reason for

such a lengthy delay between the filing of the claim with the Cla

ims Commissi on on Septe mber 17, 1 993, and t

he trans fer by th

e Claims Commissioner on October 1, 1999, we do not find any justification in the record. Such a lengthy delay is not only

unaccept able and outrageous, but undermines confidence in the Judicia l System of this State. Litigants are entitled to have their controversies promptly heard and re solved. It is the hope of this Court that such a delay as occurred in this case will not be re peated. For the foregoing reasons the judgment of the Trial Court as modified is affirmed a nd the cause remanded for collection

of the judgment rendered herein and collection of costs below which are, as are costs of

appe al, adjud

ged one- half aga

inst Charl es and Joa

nne Mira bella an d one-ha

lf against the State of Tennessee and the University of Tenne ssee.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE