Searle v. Harrah's Ent. Inc
| Decision Date | 06 October 2010 |
| Docket Number | No. M2009-02045-COA-R3-CV,M2009-02045-COA-R3-CV |
| Parties | WILLIAM SEARLE v. HARRAH'S ENTERTAINMENT, INC. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Davidson County No. 02C-1837 Amanda McClendon, Judge
This action arises from the alleged harassment of Plaintiff by Defendant, Harrah's Entertainment, Inc., while attempting to collect on a dishonored check. Plaintiff cashed a check for $500 at Harrah's Metropolis Casino in October 2001. The check was dishonored by Plaintiff's bank on the first attempt, but cleared on the second attempt on December 8, 2001. Apparently neither party knew the check had cleared in December, and in January 2002, Plaintiff claims he received threatening phone calls and letters to collect on the check. After receiving a threat of criminal prosecution, Plaintiff and his wife drove to the casino and paid $525.00 to settle the debt; however, the casino could not produce the original check, only a photocopy. Upon further investigation, Plaintiff discovered the check had cleared in December. Plaintiff then filed this action against Harrah's Entertainment, Inc. in the General Sessions Court for Davidson County. After a default judgment was entered, Harrah's filed a petition for writ of certoriari in the Circuit Court asserting that it was not the proper defendant and insufficient service of process. The circuit court granted the petition and set aside the default judgment. Plaintiff then filed an amended complaint asserting claims for negligence, gross negligence, outrageous conduct, and violation of the Fair Debt Collection Practices Act and the Tennessee Consumer Protection Act (TCPA). Following a bench trial, the court found that Harrah's was the proper defendant and ruled in favor of Plaintiff on his claims for negligence, the TCPA, and intentional infliction of emotional distress, and awarded Plaintiff damages of $5,962.95, which was trebled under the TCPA for a total award of $17,888.85. The court also awarded Plaintiff his attorney's fees. Harrah's appeals claiming it was not the proper defendant and it was not properly served. It also challenges the findings of negligence, violation of the TCPA, intentional infliction of emotional distress, and the damages awarded. We have determined that Harrah's waived the issue of insufficient service of process and it is estopped to assert that it is not the proper defendant. We affirm the trial court's findings regarding negligence, violation of the TCPA, and intentional infliction of emotional distress. We find that the trial court erred by including the $5,962.95 award for emotional distress within the amount trebled under the TCPA. Therefore, we remand for the trial court to recalculate the damages awarded under the TCPAand for a determination of the reasonable and necessary attorney's fees Plaintiff incurred on appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part, Reversed in Part, Remanded
Robert L. Moore and Dawn Davis Carson, Memphis, Tennessee, for the appellant, Harrah's Entertainment, Inc.
Allen Barnes, Hermitage, Tennessee, for the appellee, William Searle.
The matters at issue were set in motion on October 27, 2001, when the plaintiff, William Searle, and his wife visited the Harrah's Metropolis Casino in Metropolis, Illinois. While in the casino, Mr. Searle cashed a $500 check. The check was dishonored by Plaintiff's bank due to insufficient funds when it was first presented. The check cleared the bank on the second attempt on December 8, 2001. Although the check cleared the bank, Harrah's mistakenly believed it had not.
Mr. Searle testified that Harrah's sent letters and made telephone calls to his residence in Nashville, Davidson County, Tennessee to collect the perceived debt. He stated he started receiving the phone calls1 and letters in January of 2002. He also testified that he received two harassing phone calls from a woman, Kristina Thorsby, who identified herself as an employee of Harrah's Metropolis Casino. As he explained it, Ms. Thorsby told him that she was in possession of the original check, that a warrant for his arrest had been issued in Davidson County, and that if he did not promptly pay the check he would be arrested.
Plaintiff also received two letters from Ms. Thorsby. The first letter, dated January 23, 2002, states:
The letter was signed by Kristina Thorsby, her title was stated as "the credit/collections manager," and the letter was on "Harrah's Metropolis Casino" letterhead.
Mrs. Searle testified that upon receiving this letter she called Ms. Thorsby to inquire about the check and was informed that payment needed to be made immediately. As a result of the letter and the phone call with Ms. Thorsby, the Searles drove to the casino in Metropolis on Sunday, February 3, 2002 to pay the perceived debt, not knowing that Mr. Searle's check had cleared the bank weeks earlier.2
When the Searles arrived at the casino on February 3, Mr. Searle, who was afraid he would be arrested, waited near the front of the casino, while Mrs. Searle went in the casino to pay the perceived debt at the cashier's cage. When she presented $525 in cash to the cashier, Mrs. Searle requested the original of the dishonored check; the cashier, however, informed her that the casino did not have the original check, only a photocopy. Mrs. Searle took the photocopy and as she began to leave, the cashier asked her to sign a release but Mrs. Searle refused, at which time she overheard the cashier request security. Mrs. Searle then quickly left the casino.
As they were driving back to Nashville, the Searles became suspicious of the circumstances since only a photocopy of the dishonored check was provided. Upon returning home, they looked through their previous bank statements and discovered that the $500 check had cleared the bank in December 2001.
Mr. Searle then retained counsel, who sent a letter to Harrah's addressed to the attention of Ms. Thorsby. Mr. Searle's counsel received a reply letter, dated March 8, 2002, from Karen Wosnack, who identified herself as "legal counsel for Harrah's Entertainment, Inc.'s Eastern Division, which includes Harrah's Metropolis Casino." Ms. Wosnack stated that his letter to Ms. Thorsby3 had been forwarded to her "for handling." Ms. Wosnack went on to state that Harrah's was aware that a mistake was made and that Mr. Searle would be sent a reimbursement check in the amount of $525.
A $525 check was mailed to Mr. Searle on March 27, 2002; however, he chose not to cash the check. Instead, on April 9, 2002, Mr. Searle filed a civil warrant against Harrah's Entertainment, Inc. in the General Sessions Court for Davidson County seeking compensation for damages suffered as a result of the collection actions taken by Harrah's. The civil warrant was served upon Karen Wosnack by mail. Harrah's did not defend the action in general sessions court and, as a result, a default judgment was entered against Harrah's on May 21, 2002.
On June 26, 2002, Harrah's filed a Petition for Writ of Certoriari and Supersedeas, which was granted by the Davidson County Circuit Court. Harrah's then filed a Motion for Summary Judgment on the basis that there was no evidence that any employees of Harrah's Entertainment, Inc. were guilty of the alleged wrongdoing by Plaintiff. The motion was denied. Harrah's filed another motion for summary judgment asserting that it neither owned nor operated Harrah's Metropolis Casino and that the casino was owned and operated by SIRCC, Inc., which was a separate and distinct corporation; the motion was denied. Thereafter, the case languished for an extended period of time for various, irrelevant reasons.4
Mr. Searle filed an amended complaint on May 12, 2008, asserting claims for negligence, gross negligence, extortion, outrageous conduct, violations of the Fair Debt Practices Act, and violations of the Tennessee Consumer Protection Act; he sought $500,000 in damages. Harrah's filed an Answer on June 10, 2008. In its answer, Harrah's asserted inter alia that it was not the owner or operator of Harrah's Metropolis Casino and that the owner and operator was SIRCC, Inc.
A bench trial was held on August 19, 2009. Mr. Searle testified to the effect the letters and phone calls had on his mental state, which was exacerbated due to the fact that Mr. Searle suffered a massive stroke in December 2001, resulting in difficulty walking, speaking, and reading. Mr. Searle testified that he became extremely nervous and frightened after receiving the letter and the phone calls. He stated he was concerned about being thrown in jail without his medication or his wife...
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