                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                          Assigned on Briefs, June 29, 2004

         COMMUNITY BANK OF EAST TENNESSEE v. TENNESSEE
                    DEPARTMENT OF SAFETY

          Direct Appeal from the Tennessee Claims Commission - Eastern Division
                      No. 20301899 Hon. Vance Cheek, Jr., Judge



                  No. E2004-00975-COA-R3-CV - FILED AUGUST 30, 2004



The Claim Commissioner held Commission was without jurisdiction to entertain claim on appeal.
We vacate Judgment and remand.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Claims Commission is Vacated.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.


J. Myers Morton, and George W. Morton, Jr., Knoxville, Tennessee, for Appellant.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and
Sarah Chambers McBride, Assistant Attorney General, Nashville, Tennessee, for Appellee.



                                              OPINION

               Plaintiff filed this action in the Tennessee Claims Commission against the Tennessee
Department of Safety, alleging that the State had seized a vehicle in which it had a perfected
purchase money security interest, owned by Pamela and James Garner, and they had signed a
promissory note to plaintiff. Plaintiff averred that the Garner’s title properly reflected that the first
lienholder was “Community Bank of ET” at 151 E. Broad Street, Clinton, TN 37716.

              Plaintiff alleged that Mr. Garner was apparently arrested sometime prior to June 27,
2002, while driving the vehicle, and the vehicle was seized by the Campbell County Sheriff’s
Department, and on June 27, 2002, the State sent a letter and notice of the seizure to “The
Community Bank” at P.O. Box 400, Harrogate, TN 37752. Plaintiff further alleged there is no such
bank at that address, and Community has no branches in Harrogate - rather, the bank at that address
is Commercial Bank, and that Commercial Bank responded to the notice and informed the State that
it had no such customer. The State then entered an order of forfeiture.

                 Plaintiff alleged that it never received notice of the seizure, until it received actual
notice in March of 2003, and that in June of 2002, the vehicle was worth approximately $17, 850.00.
Plaintiff’s action is based on Tenn. Code Ann. §9-8-307, which will render the State liable for its
negligent care, custody, or control of personal property. Plaintiff alleged the State failed to give it
notice before the forfeiture, and further issued a new title omitting the bank’s lien. The promissory
note was exhibited, as well as the title showing it as lienholder, and the letters sent to and from
Commercial Bank.

                 The state in its Answer, admitted that James Garner was arrested for drug possession
and his vehicle was seized by the Campbell County Sheriff’s Department. The State admitted that
it sent a certified letter to “The Community Bank” at the address of P.O. Box 400, Harrogate, TN
37752, but averred that this information was obtained through a VIN check and was the only
lienholder information available on the vehicle. The State admitted that it entered an Order of
Forfeiture forfeiting the vehicle to the Campbell County Sheriff’s Department. All other claims were
denied, and raised the affirmative defense that the claim did not fall within the jurisdiction of the
Claims Commission because the State never had care, custody and control of the vehicle, and filed
a Motion to Dismiss based on this defense.

                The Commissioner entered an Order of Dismissal for Lack of Subject Matter
Jurisdiction, finding the action fell outside the scope of Tenn. Code Ann. §9-8-307(a)(1), and he
concluded that the Campbell County Sheriff’s Department had care, custody and control of the
vehicle rather than the State. Community appealed on the issue of whether the State had care,
custody or control of the vehicle within the meaning of Tenn. Code Ann. §9-8-307(a)(1)(F)?

               On the issue of subject matter jurisdiction, the Commissioner’s finding that he lacked
subject matter jurisdiction is reviewed de novo. Northland Ins. Co. v. State, 33 S.W.3d 727, 729
(Tenn. 2000)(citations omitted); also see, Stewart v. State, 33 S.W.3d 785, 791 (Tenn. 2000).

                 Tenn. Code Ann. §9-8-307(a)(1) confers jurisdiction on the Tennessee Claims
Commission to entertain monetary claims against the state based upon certain specified causes of
action - one of those is found in subsection (F), which deals with claims asserting the negligent care,
custody, or control of personal property by a state employee. This provision is to be liberally
construed, such that it should be given the “most favorable view in support of” the claim, but should
not be extended beyond its obvious meaning. Stewart.

                Cases construing this provision have focused on whether the State had a legal duty
to assert control or custody over the property in question, or whether the State employee assumed


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such a duty by undertaking an action which asserted control . See Stewart; Smith v. State, 2002 WL
31895719 (Tenn. Ct. App. Dec. 30, 2002). Plaintiff argues that the State asserted control over the
seized vehicle pursuant to the procedure set forth in the forfeiture statues.

                The statutes which control seizures and forfeitures of personal property such as the
vehicle at issue, provide that the applicable state agency (which in this case, is conceded to be the
Department of Safety) must send notice to owners/lienholders that the property has been seized,
allow time for the filing of claims, conduct hearings if requested, and determine if forfeiture is
appropriate. See Tenn. Code Ann. §40-33-201 et seq. The agency has the power to either return the
property to its owner or a lienholder, or to order the property forfeited and then dispose of the
property. Tenn. Code Ann. §§40-33-204, 206, 210. If the forfeited property is sold, then the
proceeds either go to the seizing agency or municipality, or to the state. Tenn. Code Ann. §40-33-
211.

                 Based on the statute, it is clear that the State had control over the seized property and
how it relinquishes such control. The Supreme Court has rejected the argument that “control” is
synonymous with physical custody, which appears to be the rationale behind the Commission’s
decision. See Hembree v. State, 925 S.W.2d 513 (Tenn. 1996). In Hembree, the Court stated that
“Liability in this regard comes not so much from physical custody or control; rather, it is the decision
to reduce or terminate control or supervision that is scrutinized and may result in liability if that
decision is made without due care.” Id., at 517. While Hembree dealt with the negligent release of
an individual from a state facility, the reasoning is equally applicable here in dealing with the issue
of control over personal property. The Court explained that the State could only release a person if
he was within its control, and similarly, the State could not order this vehicle forfeited unless the
State had control over it.

                “Control” is defined as “power or authority to manage, direct, superintend, restrict,
regulate, govern, administer, or oversee. The ability to exercise a restraining or directing influence
over something.” Black’s Law Dictionary 329 (6th Ed. 1990). Clearly, the State had the power to
direct what happened to this vehicle pursuant to the statute, and had the ability to either return the
vehicle to its owner or a secured party, or to order it forfeited and sold. This power is granted to the
State and not to the seizing agency or any other body. See Tenn. Code Ann. §§40-33-204, 206, 210.
Thus, the control was with the State, and not with the sheriff’s department as the Commissioner
determined.

               The Judgment of the Claims Commission is vacated and the cause remanded for
further proceedings consistent with this Opinion. The cost of the appeal is assessed to the State of
Tennessee.



                                                         ______________________________
                                                         HERSCHEL PICKENS FRANKS, P.J.


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