# FILED
June 11, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE RENEE HENDERSON, ) ) Plaintiff/Appellee, ) Dav idson Circu it No. 95C -899 ) VS. ) A ppeal No. 01A 01-9610-CV-004 63 ) JERRY HA RLA N, d/b/a ) LODGE QUA RTERS RIVER GAT E, ) ) Defendant/Appellant. )
APPEAL FROM THE CI RCUI T COUR T OF DA VIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE WALTER C. KURTZ, JUDGE

PH IL LI P R . N EW MAN MANIER, HEROD, HOLLA BAUGH & SMITH Nashvil le, Tennessee Attorney for Appellant
WORRICK G. ROBINSON , IV ADA MS & WHITEAKER, P.C. Nashvil le, Tennessee Attorney for Appellee

REVERSED A ND DISMIS SED

ALAN E. HIGHERS , J.

CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. HOLLY K IRBY LIL LA RD, J. Jerry Harlan, d/b/

a Lodge Quarter

s Rivergate (“D efendant”) appeals t he judgment2

of the circui t court arg uing that thecircuit court erred in refusing t o allow him to voluntarily dismis s his appeal from g eneral sessi ons court. F or the reasons stated hereafter, w e reverse the judgment of the c ircuit cour t.

PROCEDURAL HISTORY

In this replev in action , Renee Henderson (“ Plaintiff”) filed a complaint in general sessions court agai nst Defendant seeki ng possessi on of her personal property w hich the Defendant was holding without her consent. Defendant f iled a separa te compl aint in general session s court aga inst Plai ntiff for expe nses inc urred in t he movin g and stor age of Plaintiff’s personal prop erty and for damage that the Defendant had in c urred due to Plaintiff’s tenancy. General sessions court granted a judgment in favor of the Plaint iff in the amount of $1,500.00, awarded Plainti ff possession of her per sonal prope rty, a nd dismissed Defendant’s companio n suit. Defendant a ppe aled the judgment of general sessions co u rt to circuit court. Plaintiff thereaf ter filed an amende d complaint in circuit court seeking compensatory damag es in the amount of $10,000 .00 and punitive damages in the amount of$20,000.00. After ans wering Plaintiff’s amended complaint, Defendant filed a notice of vol untary dis missal of its a ppe al from gen eral sessi ons court. U pon denying Defendant’s notic e of voluntary dismissal, the circui t court awar ded P lai ntiff a judgmentin th e amount of $9,000.00 and dismissed De fendant’s count er-complaint against the Plaintiff.

LAW

The sole issue before this Cour t is whet her the circ uit court er red in refusing to allow the Defendant volunt arily t o dismiss hi s appeal from a judgment in general sessions court afterthe Plaintiff filed an amended complaint in c ircuit cour t and after

the Defendant filed an answer t o the amended complaint

.

It is wel l-settled und er Tennessee law that a party

app ealing a ge neral sessi ons3

court judgment

to circui t court has theright to dismiss the app eal at any t ime prior to trial in circuit court
. Storie v. Griffin , 51 S.W.2d 488, 489 (Tenn. 1932); C.B. Donaghy & Co.
v. McCorkle , 98 S.W. 1050, 1050-51 (Tenn. 1907); Day v. Hag ler , slip op. (Tenn. Ct. App. June 25, 1985). Our supreme c ourt in C.B. Donaghy & Co. v. McCorkle , 98 S.W. 1050 (Tenn. 1907), sta ted t hat “ [i]t is the gene ral ru le th at th e app ella nt ma y have h is own appeal dismissed at any time w hile t he cause remains w ithin the jur isdiction of the appellate court.”
Upon dismissal of a n appeal from gener al sessions court, the judg ment of the general sessions court shall be affirmed. McCorkle , 98 S.W. at 1051. See also Storie v. Griffin , 51 S.W.2d 488, 489 (Tenn. 1932) (stat ing appellan t had a r ight to dis mi ss his appeal from the judgment of the justice of the peace cour t to c han cery co urt a nd ha ve the judgment of the justice of the peace court aff irmed).

In Day v. Hagler , slip op. (Tenn. Ct. App. June 25, 1985), this Court addressed an issue similar t o the one in the case at bar. The iss ue in Day was w hether a party

appealing from a general s essions court judg ment to circuit court may di smiss his app eal when doi ng so would prevent his non-appealing adversary from proving additional damages in circuit court. In hol ding that the appellant coul d dismiss hi s appeal, this Court stated that “[t]he law is clear th at a part y appeali ng a General Sessions jud gment to Cir cuit Court has the right to dis miss t he appea l at an y ti me prior to tr ial in Ci rcuit Cour t.” Day , slip op. at 2. In Day , the court sai d:

Addit i ona lly, there is no i njustice apparent. Plainti ff’s additional expense sought in t he Circuit Court aroseafter the General Sessions judg me nt wou ld have become final had there been no appeal. There would be no cause of action for those expenses in that eventuality. In short, the plaintif f is in the same position as if no appeal h ad b een taken by t he defendant . She still has her judg ment for $3,246.00. W here is there an i njustice? Day , slip op. at 2.

Althou gh Pla inti ff cit es t he ca se of W are v. Meharry Med ical Colle ge , 898 S.W.2d 181 (Tenn. 1995), for t he proposition that an appellant loses his r ight to dis miss his appeal4

from a general s essions cour t judgment

once an amended complai nt and an answer to the amended complaint are filed in circuit court, Plaintif f’s proposition is in error. The Supr eme Court in W are held that a part y may appeal from a judgment in general sessions court to circuit court and amend the complaint to seek damagesbeyond the monetar y juris dictional lim its of g eneral sessi ons court. The court in W are did not modify t he long-sta nding principle that an appellant may dismis s his appeal from a judgment of the g eneral sessi ons court at any time prior to tr ial in cir cuit court. Thus, in the present case, the circuit court’s refusal to allow

the Defendantvoluntarily to dismiss h is appeal from the j udgment of the general sessions court was in error.

The judgment of the circuit court is hereby reverse d and d ismissed. C osts on app eal a re ta xed to Appe llee for wh ich e xecut ion m ay issu e if n eces sary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

LILLARD, J.