IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
WANDA CRUSE, ) FOR PUBLICATION
)
Plaintiff/Appellee, ) Filed: May 6, 1996
)
v. ) Maury Circuit
)
CITY OF COLUMBIA, as a ) Hon. Joe C. Loser, Judge
political subdivision of the )
State of Tennessee, ) No. 01S01-9508-CV-00132
)
Defendant/Appellant. )
FILED
May 6, 1996
For Appellee: For Appellant: Cecil W. Crowson
Appellate Court Clerk
Wm. Kennerly Burger Overton Thompson, III
Murfreesboro, TN Stephen H. Price
FARRIS, WARFIELD & KANADY
Nashville, TN
O P I N I O N
COURT OF APPEALS AFFIRMED WHITE, J.
In this property confiscation case, the Court must decide
whether a direct appeal was timely and whether the Governmental Tort
Liability Act's1 twelve-month statute of limitations set forth in Tennessee
Code Annotated Section 29-20-305(b) applies to bar plaintiff's claim for
damage to and loss of personal property seized by police officers employed
by defendant, the City of Columbia. For the reasons explained below, we
hold that the appeal was timely and that plaintiff's claim is controlled by
the three-year statute of limitations contained in Tennessee Code
Annotated Section 28-3-105 and is, therefore, not barred.
I.
Before addressing the merits, we must determine whether this
appeal can proceed. The final disposition from which plaintiff sought a
direct appeal to the Tennessee Court of Appeals was a “Memorandum and
Judgment” granting defendant’s motion to dismiss. Plaintiff filed a notice
of appeal pursuant to Rule 3 of the Tennessee Rules of Appellate
Procedure on August 8, 1994. This document, marked filed by the court
on that date, was initially received by facsimile, although nothing in the
record other than counsel’s statement so indicates. The record contains
one copy of the notice of appeal marked filed on August 8th and a second
copy marked filed on August 10, 1994. Plaintiff’s counsel practiced
primarily in a neighboring judicial district in which a pilot program
allowing facsimile transmissions was in effect. Defendant argues quite
validly, however, that our rules do not universally sanction facsimile
1
The Governmental Tort Liability Act is codified at Tennessee Code Annotated Section
29-20-101 S -407.
2
transmissions. Consequently, defendant contends that plaintiff’s appeal as
of right should have been dismissed as untimely.
We disagree. Rule 3 of the Tennessee Rules of Appellate
Procedure sets forth the method for filing an appeal as of right. It requires
the “timely filing [of] a notice of appeal with the clerk of the trial court as
provided in Rule 4 and by service of the notice of appeal as provided in
Rule 5.” Tenn. R. App. P. 3(e). It further specifies the contents of the
notice which includes “the party or parties taking the appeal, . . . the
judgment from which relief is sought, and . . . the court to which the appeal
is taken.” Id. at (f). Rule 4 of the Tennessee Rules of Appellate Procedure
likewise requires that the notice of appeal be “filed with and received by
the clerk of the trial court . . . .” Tenn. R. App. P. 4(a). Rule 20 of the
appellate rules and Rule 5 of the civil procedure rules define filing with the
court as “filing” or “receipt.” Tenn. R. App. P. 20(a); Tenn. R. Civ. P.
5.06. Other than describing the method for filing by mail, none of the
rules more specifically describe the act of “filing.”
The filing and content requirements of a notice of appeal
fulfill two purposes. First, the notice of appeal, filed with the trial court
clerk and served on opposing counsel, advises the court and opposing
counsel that an appeal has been taken. Secondly, designation of the
judgment appealed from and the court appealed to clearly describes the
matter on appeal. In this case there is no question that both the court and
the opposing party were advised that an appeal had been taken. The notice
3
of appeal was received and filed within the requisite time period by the
clerk of the court. It included a certificate of service on opposing counsel.
Additionally, there is no question that the notice of appeal contained the
necessary elements. It noted the judgment appealed from and the court
appealed to. The only issue is whether the method of filing should void
the appeal in this case. We agree with the Court of Appeals that it should
not.
Our determination to allow the appeal in this case to stand is
prompted by Rule 1 of the Tennessee Rules of Appellate Procedure and the
specific circumstances of this case. Rule 1 cautions that “[t]hese rules
shall be construed to secure the just, speedy, and inexpensive
determination of every proceeding on its merits.” Tenn. R. App. P. 1
(emphasis added). We agree with the Court of Appeals that plaintiff’s
notice of appeal that was sent by facsimile was received and filed by the
trial court within the time allowed by the rules. Further, the opposing
party was given appropriate notice. Neither the court nor the opposing
party suffered any prejudice as a result of the facsimile filing.
Additionally, we allow the appeal to proceed because of the
substantial compliance with the rules as well as the lack of prejudice in this
case. This decision does not sanction the use of facsimile filing in future
cases. Although, as plaintiff suggests, the legislature has expressed its
intention that facsimile transmissions be accepted, Tenn. Code Ann. § 16-
1-113 (1994 Repl.), and although we have implemented a pilot program to
4
study the use of facsimile transmissions, counsel should not rely on
facsimile transmissions for the filing of documents in the future. We
affirm the Court of Appeals’ decision to allow this appeal to stand because
of the unique circumstances presented and based on the facts of this case
only. 2
II.
The facts in this case are not disputed. On December 10,
1991, City of Columbia police officers searched plaintiff's home and
vehicle. The officers seized approximately 365 items of personal property
believed to have been stolen in several burglaries. The items, seized
pursuant to a search warrant, included jewelry, cameras, televisions, stereo
equipment, ammunition, weapons, and coins. Plaintiff was arrested and
indicted for possession of stolen property.
After plaintiff's arrest, the officers contacted persons who had
filed reports of stolen property matching that seized from plaintiff. The
officers then delivered approximately 150 items of the seized property to
those persons believed to be the lawful owners.
On May 5, 1992, the criminal charges against plaintiff were
dismissed because of a defect in the preparation of the search warrant
2
Counsel should be specifically aware that facsimile service is not allowed for the service
of pleadings and other documents on parties to a lawsuit. Tenn. R. Civ. P. 5.02. Service
methods for pleadings and other documents are specifically defined by the rule.
Additionally, the Advisory Commission Comments to Rule 5.02 declare that “Rule 5.02
does not permit service by facsimile (‘fax’) transmission.”
5
which prevented the use of the seized evidence against her. On September
18, the officers returned the remaining property to plaintiff.
On February 23, 1994, plaintiff filed suit against the City of
Columbia based on provisions of Tennessee Code Annotated Section 40-
17-118, which provides in part:
Confiscated stolen property. - (a) Personal
property confiscated as stolen property by a
lawful officer of the state, a county or a
municipality of the state to be held as evidence of
a crime shall be promptly appraised, catalogued
and photographed by the law enforcement agency
retaining custody of the property.
...
(c) The state, county and/or municipal
authority holding the property shall be
responsible for the return of the property to
the lawful owner and shall be liable in
damages to the owner of the property in the
event of damage or destruction occasioned by
the delay in the return of the property.
Tenn. Code Ann. § 40-17-118(a), (c)(1990 Repl.)(emphasis added).
Relying upon this statute, plaintiff alleged in her complaint that the
confiscated items were not stolen, and that some of the items were not
returned, while others were returned in a damaged condition. Plaintiff
sought damages for the damaged and lost property.3
On March 23, 1994, defendant filed a motion under Rule
12.02(6) of the Tennessee Rules of Civil Procedure to dismiss the
3
Plaintiff also filed suit against the City of Columbia and various police officers in the
United States District Court for the Middle District of Tennessee alleging civil rights
violations under 42 U.S.C. § 1983.
6
complaint for failure to state a claim upon which relief could be granted.
Defendant's motion also contended that plaintiff's suit was barred by the
twelve-month statute of limitations contained in the Government Tort
Liability Act (hereafter GTLA). Tenn. Code Ann. § 29-20-305(b)(1995
Supp.)(suits brought under the GTLA "must be commenced within twelve
(12) months after the cause of action arises."). The trial court found that
the suit was untimely and dismissed the case. The Court of Appeals
reversed, holding that the governing statute of limitations was the three-
year statute applicable to injuries to or for detention, or conversion of
personal property contained in Tennessee Code Annotated Section 28-3-
105,4 not the GTLA's twelve-month statute of limitations. Tenn. Code
Ann. § 29-20-305(b)(1995 Supp.). The Court of Appeals reasoned that
[a] clear reading of [Tennessee Code
Annotated Section 40-17-118] removes immunity
of governmental entities for liability for damage
to property taken under the circumstances set
forth therein. As can be clearly seen, § 40-17-
119 contains no limitation period. Under the
circumstances, we hold that the three year statute
of limitations set forth in T.C.A. § 28-3-105(1)
applies.
Hence, the Court of Appeals found that plaintiff's suit filed on February
23, 1994 was timely because it was filed within three years of September
18, 1992, the date the property taken from plaintiff's home was returned to
her. We granted this appeal to determine which limitation period controls.
4
This section provides: "The following actions shall be commenced within three (3) years
from the accruing of the cause of action:
(1) Actions for injuries to personal or real property;
(2) Actions for the detention or conversion of personal property . . . ."
Tenn. Code Ann. § 28-3-105(1), (2)(1995 Supp.).
7
II.
Defendant contends that the GTLA's twelve-month statute of
limitations controls because plaintiff's complaint is essentially a tort claim
filed against a municipality which must be brought pursuant to the GTLA.
See Simpson v. Sumner County, 669 S.W.2d 657, 660 (Tenn. Ct. App.
1983), perm. to appeal denied, (Tenn. 1984)(observing that the language
and legislative history of the GTLA make it clear that the act applies to
claims sounding in tort brought against governmental entities). In
response, plaintiff asserts that the three-year statute of limitations in
Tennessee Code Annotated Section 28-3-105 controls because suit was
brought pursuant to the specific remedy provisions of Tennessee Code
Annotated Section 40-17-118, not under the provisions of the GTLA.
Since that statute contains no limitation period, the general limitation
period applying to property loss or damage applies.
Prior to the 1973 enactment of the GTLA, the sovereign
immunity doctrine protected the state and its political subdivisions from
tort liability. Kirby v. Macon County, 892 S.W.2d 403, 406 (Tenn. 1994).
The doctrine, which has been a part of Tennessee law for well over a
century, see Memphis v. Kimbrough, 59 Tenn. 133 (1873); State v. Bank
of Tenn., 62 Tenn. 395 (1874), provides that suit may not be brought
against a governmental entity except to the extent that the governmental
entity has consented to be sued. Bailey v. City of Knoxville, 113 F.Supp.
3, 6 (E.D. Tenn. 1953). The longstanding rule in this state has been that
governmental entities may prescribe the terms and conditions under which
8
they consent to be sued, see Moore v. Tate, 11 S.W. 935, 939 (Tenn.
1889), including when, in what forum, and in what manner suit may be
brought. See Lynn v. Polk, 76 Tenn. 121, 139 (1881).
The rule of immunity was "deeply rooted in feudal notions of
the divine right of kings. In feudal England the King was at the very
pinnacle of the power structure and was answerable to no court since 'the
King can do no wrong.' " Cooper v. Rutherford County, 531 S.W.2d 783,
786 (Tenn. 1975)(Henry, J., dissenting).5 See also Webb v. Blount Mem.
Hosp., 196 F.Supp. 114, 116 (E.D. Tenn. 1961), aff'd, 303 F.2d 437 (6th
Cir. 1962); Simpson v. Sumner County, 669 S.W.2d at 659; W. Keeton,
Prosser and Keeton on the Law of Torts, § 131 (5th ed. 1984). However,
despite the established history of sovereign immunity, our legislature has
always had the authority to waive its protections. This authority is found
in Tennessee's Constitution which provides that "[s]uits may be brought
against the State in such manner and in such courts as the Legislature may
by law direct." Tenn. Const. Art. I, § 17.
When other states began limiting or abolishing sovereign
immunity either by statute or judicial decision, Tennessee's legislature
followed the trend. In explaining the GTLA bill to the Tennessee House
5
The proposition that the sovereign could do no wrong - the basis for sovereign
immunity - has not always been warmly embraced. Justice Henry of this Court once
observed that "[g]overnmental immunity is a cankered, corroded and corrupted area
of our law. It is the flaming sword used by cities and counties in Tennessee to banish
the innocent victims of their wrongs and deny them their traditional day in court. It has
become the hallmark of governmental irresponsibility - the defense by which
governmental
entities stoop to conquer their own citizens." Cooper v. Rutherford County, 531 S.W.2d
783, 785 (Tenn. 1975).
9
of Representatives, one of the members of that body stated:
[I]n 1957 three states made some move to abolish
or alter the governmental immunity as it applies
to governmental entities within those states. By
1970, some 25 states [had] taken affirmative
action to abolish or restrict the defense of
governmental immunity in tort actions brought
against public agencies. In those states that have
abolished or altered governmental immunities the
results have been achieved in three different
ways. The first and probably the most disruptive
method of limited tort liability or tort
immunity has come about by court decisions
which have held the doctrine to be inapplicable.
These decisions have led to a quagmire of
problems and [have] generally thrown both the
claimants and the governmental bodies into
confusion and chaos. The second method . . . has
been in those states where the legislatures [have]
passed acts which prohibit the use of
governmental immunities as a tort defense . . . .
The third method, which is what this bill will do,
is the one which limits governmental tort
immunity, but at the same time provides
procedures and standards to protect the public
interest.
House Debate on Limited Removal of Governmental Tort Liability Act,
May 2, 1973 (quoted in Simpson v. Sumner County, 669 S.W.2d at 659-
60)(emphasis in original). Thus, the GTLA was passed in 1973 in an
attempt to avoid some of the confusion experienced by other states that
had waived immunity by judicial decisions. Chapman v. Sullivan County,
608 S.W.2d 580, 582 (Tenn. 1980).
The GTLA was an "act of grace through which the legislature
provided general immunity from tort liability to all governmental entities
removing it, however, in limited and specified instances." Kirby v. Macon
County, 892 S.W.2d at 406. This "general immunity" is codified in
10
Tennessee Code Annotated Section 29-20-201(a), which provides that
"[e]xcept as may be otherwise provided in this chapter, all governmental
entities shall be immune from suit for any injury which may result from the
activities of such governmental entities wherein such governmental entities
are engaged in the exercise and discharge of any of their functions . . . ."
Tenn. Code Ann. § 29-20-201(a)(1995 Supp.). Immunity is then waived in
limited and enumerated instances for certain injuries. See e.g., Tenn. Code
Ann. § 29-20-202(a)(1980 Repl.)(immunity removed for injuries resulting
from the negligent operation of a motor vehicle or other equipment by an
employee in the scope of employment); Tenn. Code Ann. § 29-20-
203(a)(1995 Supp.)(immunity removed for injuries caused by a defective,
unsafe, or dangerous condition on a public roadway or sidewalk); Tenn.
Code Ann. § 29-20-204(a)(1980 Repl.)(immunity removed for injuries
caused by dangerous or defective conditions associated with public
structures or improvements); & Tenn. Code Ann. § 29-20-205 (1980
Repl.)(immunity removed for injuries caused by the negligence of
governmental employees with certain exceptions).
It is true, as defendant argues, that the GTLA provides a
comprehensive scheme for tort actions against governmental entities. See
Chapman v. Sullivan County, 608 S.W.2d at 582. Nonetheless, "if a
specific or special statute provides for a remedy and waiver of immunity
for injuries that are expressly excluded from the operation of the GTLA,
then those remedies would not be affected by the GTLA . . . ." Jenkins v.
Loudon County, 736 S.W.2d 603, 608 (Tenn. 1987). It follows that the
11
GTLA does not encompass every tortious act by a governmental entity. In
fact, the GTLA "leaves significant areas of activities either protected by
immunity or subject to independent bodies of law." Id. at 609. See also
Simpson v. Sumner County, 669 S.W.2d at 660-62 (GTLA does not cover
contract disputes with governmental entities).
By its own terms, Tennessee Code Annotated Section 40-17-
118 creates a separate cause of action against governmental entities for the
return of confiscated property and for damages in the event of damage or
destruction to the property. The statute does not condition recovery on
proof of negligence on the part of the governmental entity. Thus, while an
aggrieved property owner may, in certain limited circumstances, proceed
under the GTLA if the government employees have negligently caused
injury, Tenn. Code Ann. § 29-20-205 (1980 Repl.), a property owner
whose property is confiscated may seek relief under Section 40-17-118
regardless of how the damage or destruction occurred. The two provisions
are not mutually exclusive. They exist independent of one another. See
Jenkins v. Loudon Co., 736 S.W.2d at 607-09. This conclusion is apparent
from the text of the two statutes, is consistent with traditional rules of
statutory construction, Sutherland on Statutory Construction, § 23.10
(Sands 5th ed. 1993), and is bolstered by the fact that the confiscated
property statute and the GTLA were enacted the same year. Had the
General Assembly intended the latter to absorb the former, it would simply
have included the action as an enumerated exception to immunity under
the GTLA.
12
The GTLA itself provides that a twelve-month limitation
period applies "in those circumstances where immunity from suit has been
removed as provided for in this chapter." Tenn. Code Ann. § 29-20-
305(a)(1995 Supp.)(emphasis added). Plaintiff's complaint seeks damages
not under the GTLA but pursuant to Tennessee Code Annotated Section
40-17-118. Her complaint specifically references that statute and does not
mention any of the provisions of the GTLA. Because the defendant's
immunity from suit has been removed by a statute independent of the
GTLA and plaintiff's suit is based on that independent statute, we conclude
that the statute of limitations provided in the GTLA for circumstances in
which immunity "has been removed as provided for in [that] chapter" does
not apply. Since the statute upon which plaintiff bases her cause of action
does not contain a limitation period, the applicable time period is that set
forth in Title 28, Chapter 3. Tenn. Code Ann. § 28-3-101 (1980
Repl.)("All civil actions . . . shall be commenced after the cause of action
has accrued, within the periods prescribed in this chapter unless otherwise
expressly provided.")(emphasis added). That applicable time period for
causes of action for injuries to, detention of, or conversion of personal
property is three years as set forth in Tennessee Code Annotated Section
28-3-105. Accordingly, we affirm the judgment of the Court of Appeals
setting aside the dismissal of the case and remand to the trial court for
further proceedings. Costs shall be paid by defendant.
__________________________________
Penny J. White, Justice
13
CONCUR:
Anderson, C.J.
Drowota, Reid, Birch, J.J.
14