                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  December 4, 2003 Session

   SAMUEL TIMOTHY COLLINS v. KNOX COUNTY, TENNESSEE, et al

                        Appeal from the Circuit Court for Knox County
                        No. 03-90-01 Wheeler A. Rosenbalm, Judge

                                  FILED FEBRUARY 25, 2004

                                  No. E2003-01421-COA-R3-CV


This appeal arises out of a complaint filed by the Appellant, Samuel Timothy Collins, against the
Appellee, NBC Bank, for damages he allegedly incurred as a consequence of his erroneous arrest
and incarceration by the Knox County Sheriff’s Department. We affirm the judgment of the Trial
Court.

  Tenn. R. App. P. 3 Appeal as of Right ; Judgment of the Circuit Court Affirmed; Cause
                                        Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which D. MICHAEL SWINEY , J.,
joined. Charles D. Susano, Jr., J., filed a concurring opinion.

John K. Harber, Knoxville, Tennessee, for the Appellant, Samuel Timothy Collins

Arthur G. Seymour, Jr. and Robert L. Kahn, Knoxville, Tennessee, for the Appellee, NBC Bank

                                             OPINION

         In February of 2000 the Knox County Sheriff’s Department held an outstanding warrant for
the arrest of an individual named Timothy L. Collins (hereinafter “the fugitive Collins”) for
insurance fraud. The fugitive Collins retained an account at NBC Bank (hereinafter “NBC” or “the
Bank”) and it appears that a check had been issued on such account in association with the alleged
insurance fraud. In its effort to locate the fugitive Collins, the Sheriff’s Department notified NBC
of its investigation and requested that it be notified should “Tim Collins” appear at any of the Bank’s
branch locations.

       Thereafter, Samuel Timothy Collins (hereinafter “the Appellant ”), who also held an account
at NBC, was present at one of the Bank’s branches to deposit his paycheck. The teller waiting on
the Appellant at the time was aware of the Sheriff’s Department’s request that it be notified if “Tim
Collins” should appear. In compliance with such request the teller stalled the Appellant while the
Bank notified the Sheriff’s Department that “Tim Collins” was at the Bank. After a brief period of
time Knox County deputies arrived at the Bank and informed the Appellant that there was an
outstanding warrant for his arrest. Apparently both the Bank and the Appellant agree that the
deputies examined the Appellant’s driver license, radioed the information contained therein to the
Sheriff Department’s office and were advised that the identifying information on the license and the
identifying information in the arrest warrant did not match. Nevertheless, the Appellant was
arrested, his paycheck was confiscated and his vehicle was impounded. The Appellant was then
transported to the Knox County Detention center where he was clothed in prison garb and
incarcerated. The Appellant was detained for approximately five hours until the Sheriff’s
Department realized that he had been mis-identified as the fugitive Collins whereupon he was
released. Later on the same day the Appellant’s automobile and paycheck were returned to him.

        In February of 2001 the Appellant filed a complaint in the Knox County Circuit Court against
Knox County, Knox County Sheriff Tim Hutchison, three unidentified Knox County deputies and
NBC Bank. The complaint alleges that, due to the combined negligence of the Defendants, the
Appellant was falsely arrested and incarcerated and his property was confiscated. The complaint
further alleges that, as a result of the Defendants’ actions, the Appellant “suffered injuries including,
but not limited to, the embarrassment and humiliation associated with imprisonment, the loss of
reputation and esteem among his peers and within his community, out-of-pocket expenses, as well
as other incidental and consequential damages....”

       All of the Defendants named in the Appellant’s complaint filed motions for summary
judgment. Subsequently, the Appellant voluntarily dismissed his cause of action against Knox
County, Sheriff Hutchison and the three unidentified Knox County deputies and the Trial Court
granted NBC Bank’s motion for summary judgment.

       The sole issue upon appeal is, as restated, whether the Trial Court erred in granting the
Bank’s motion for summary judgment.

        The standard governing our review of a trial court's decision to grant summary judgment is
well settled under the law in this State. The trial court's judgment involves purely a question of law
and, accordingly, it is not entitled to a presumption of correctness. Carvell v. Bottoms, 900 S.W.2d
23 (Tenn. 1995). Our sole task in reviewing such a judgment is to determine whether the
requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been met. Mason v. Seaton,
942 S.W.2d 470 (Tenn. 1997).

        As set forth in Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993) at page 214:

         Rule 56 comes into play only when there is no genuine issue as to any material
         fact and the moving party is entitled to a judgment as a matter of law. Thus, the
         issues that lie at the heart of evaluating a summary judgment motion are: (1)
         whether a factual dispute exists; (2) whether the disputed fact is material to the
         outcome of the case; and (3) whether the disputed fact creates a genuine issue for
         trial. (emphasis in original)


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       In its motion for summary judgment NBC asserts that it “simply obeyed the request for
assistance by the Knox County Sheriff’s Department.” NBC’s motion further states that “[t]he
decision to arrest was that solely of the Knox County Sheriff’s Department. NBC did not request or
suggest [the Appellant’s] arrest, nor did it persuade or influence the Sheriff’s Department in its
decision.” In light of these facts, NBC contends that the Appellant cannot sustain his cause of action.
In support of this contention NBC cites Hertzka v. Ellison, 8 Tenn. App. 667 (1928) wherein the
Court stated as follows at page 674:

         One cannot be held liable for false imprisonment where he merely informed an
         officer of circumstances which aroused his suspicions, but made no request or
         suggestion that the suspected person be arrested, and the officer, of his own
         volition, made an arrest.

        The Appellant argues that the rule set forth in Hertzka was subsequently expanded in Blue
Star Service, Inc. v. McCurdy, 251 S.W.2d 139 (Tenn. Ct. App. 1952) and that, under the holding
of this Court in the latter case, a defendant is liable for false arrest if the defendant does not exercise
reasonable diligence before setting in motion the machinery which proximately causes the arrest.

        Under the facts in Star Service, Inc. the plaintiff’s car was repossessed by a finance company
after he fell behind in payments. Pursuant to a prior arrangement between the finance company and
the defendant parking lot owner, the finance company parked the car on the defendant’s lot and was
issued a claim check. A few days later the plaintiff paid the finance company and was given the
claim check for the car. The finance company then advised the defendant that the plaintiff was
entitled to possession of the car. Thereafter, the plaintiff retrieved his car from the defendant’s lot;
however, the defendant was apparently unaware that it was the plaintiff who had taken the car and
attested that it had no record of having received the claim check. Accordingly, upon discovering that
the car was no longer on the lot, the defendant notified the police department that it had been stolen.
The defendant advised the police that he did not know whether the plaintiff had taken the car, but
that the plaintiff had paid the finance company and was entitled to possession upon presentation of
the claim check. Pursuant to a request by the police that the defendant make inquiries to verify the
fact that the car had in fact been stolen, the defendant contacted the finance company for information
whereby it could contact the plaintiff. The finance company advised the defendant that the plaintiff
did not have a telephone and gave the defendant the plaintiff’s home address. However, the
defendant did not attempt to contact the plaintiff at his home and simply reported back to the police
that the car had been stolen. Thereafter, the police located the car being driven by the plaintiff who
was arrested, handcuffed and taken to jail. Upon appeal to this Court we noted that, even though the
defendant was instructed by the police to make an investigation before they acted upon the
defendant’s report that the car had been stolen, the defendant made no effort to contact the plaintiff
other than obtaining his mailing address. We also noted there was no evidence that the defendant
gave the police a description of the plaintiff or took precautions to prevent the arrest of the plaintiff
should he be found in possession of the car. At page 142 we stated as follows:




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                 The evidence compels the finding that there would have been no arrest but
         for the report of a stolen car and that defendant knew that anyone found in
         possession would be arrested or detained by reason of the report, if found in
         possession. So it matters not whether defendant intended or not that plaintiff be
         arrested, because he intended or knew that somebody would be arrested, if found
         in the car.

               Under these circumstances defendant owed the duty of reasonable care in
         making a stolen car report.

         We are compelled to observe that, unlike the defendant in Star Service, NBC Bank did not
initiate the action which resulted in the arrest in the present case. NBC merely complied with the
request that it notify the Sheriff’s Department should “Tim Collins” appear. A warrant for the arrest
of the fugitive Collins was issued before the Bank was ever contacted by the Sheriff’s Department
and, therefore, the machinery which proximately caused the Appellant’s arrest was set in motion
prior to NBC’s involvement.

        The defendant in Star Service, Inc. attempted to rely on the same provision from Hertzka
cited above by NBC; however, this Court noted as follows at page :

                 It appears from the cases cited in the Hertzka case as well as in many
         others, that if the evidence shows the officer acted on his own volition, the
         informer is not liable, but if he acted under the direct or indirect request of the
         informer the later will be held liable; and where the evidence is in dispute, it is for
         the jury.

        In Hertzka the defendant’s report that the car was stolen carried an implied indirect request
that the individual found in possession of the car be arrested. By contrast, in the present matter there
is no evidence that the Bank requested, directly or indirectly, that the Appellant or the fugitive
Collins or anyone else be arrested.

         This Court has hitherto stated that “Star Service stands for the proposition that one is subject
to liability for false arrest where one files a complaint with the police without exercising reasonable
care in reporting the crime.” Ross v. Gunther, an unreported opinion of this Court filed in Nashville
on December 17, 1986. NBC neither filed a complaint nor reported a crime in this case.

        The Appellant contends that “it would have been prudent for NBC Bank to verify whether
or not there was more than one Timothy Collins that was an NBC Bank customer” and that, before
notifying the Sheriff’s Department, the Bank had a duty to make a reasonable investigation as to
whether the individual who appeared at the Bank was, in fact, the individual the Sheriff’s
Department was pursuing. However, the Sheriff’s Department already had information showing that
the Appellant was not the person it was seeking. As previously noted, it is undisputed that the
Appellant presented the arresting deputies with identifying information which did not match


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information identifying the fugitive as set forth in the arrest warrant. We further note the following
testimony of the Appellant recounting the observations of a Sheriff Department employee during the
time that the Appellant was being booked which provides additional confirmation that the Sheriff’s
Department already had sufficient information to determine that the Appellant was not the individual
they were seeking:

                 A ... And then from there they took me to a room probably not a whole lot
         bigger than this with probably 25, 30 other people in it, and that’s where I stayed
         until they came and got me to fingerprint me, and I guess book me. I think then
         is when they realized that I was not who they were looking for.

                 Q Who was it that realized that? What was the first indication there?

                 A They took me into the room where they did all the fingerprints and mug
         shots, and the guy that was doing it I noticed him looking at my paperwork. And
         he said stand up against the wall and don’t move. I’ll be right back, and I said ,
         okay.

                  Well, he left and he came back with another officer 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 added.)

       Notwithstanding all the information the Sheriff’s Department already had whereby it could
have distinguished the Appellant from the fugitive, the Appellant was arrested.

       The record shows that the Knox County deputies acted on their own volition in arresting the
Appellant without any prompting by NBC. Accordingly, we find no merit in the Appellant’s
argument that summary judgment was inappropriate in this case.

       For the foregoing reasons we affirm the judgment of the Trial Court. Costs of appeal are
adjudged against Samuel Timothy Collins and his surety.



                                               _________________________________________
                                               HOUSTON M. GODDARD, PRESIDING JUDGE




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