# FILED
May 6, 1996 Cecil W. Crowson Appellate Cou rt Clerk 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. Lose r, Judge political subdivision of the ) State of Tennessee, ) No. 01S01-9508-CV -00132 ) Defendant/Appel

lant. )

For Appellee : For Appellant : 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.1 The Governmental Tort Liability Act is codified at Tennesse e Code Annotated Section 29-20-101 S

-407. 2 In this property

confiscation case,

the Court must de

cide whether a direct appeal was timely and whether the Governm ental Tort Liability Act's 1 twelve-month statute of limitations set forth in Tennessee Code Annotated Sec

tion 29-20-305(b) appli

es to bar plaintiff' s claim for damage to and loss of personal property seized by police officers employ ed by defendant, the City of Colu mbia. For the reasons expla ined below, we hold that the appeal w

as timely a

nd that plaintiff's c

laim is controll

ed by the three-yea

r statute of lim

itations contained in T

ennessee Code Annotated Section 2 8-3-105 and is, ther efore, not barre

d.

I. Before addressing

the merits, w

e must determ

ine whether this appeal can procee

d. The final dispos

ition from whic

h 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 Tenne ssee Rules of Appel late Procedure on August 8, 1994. This document, marked filed by the court on that date, was i

nitially recei

ved by facsim

ile, although nothing in

the record other than c

ounsel’s statem

ent so indicates. T

he record contains one copy of the not

ice of appeal m

arked filed on Augus

t 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 facsim

ile transmissio

ns was in effect.Defendant argue s quite validly, howev

er, that our rules

do not universally

sanction facsim

ile3

transmissions. Consequently, defendant contends that plaintiff’s appeal as of right should h ave been dismissed as un timely.

We disagree. Rule 3 of the Tenne ssee Rules of Appel late Procedure sets forth the method for filing an appeal as of right. It requires the “timely filing [of] a notice of appeal w ith the clerk of the trial court as provided in Rule 4 and by service of the notic

e of appeal as provid

ed in Rule 5.” Tenn. R . App. P. 3(e) . It further spec ifies the contents of

the notice which include s “the party or parties taking the

appeal, . . . t

he 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 require s that the notice of a ppeal be “file

d with and received

by the clerk of the tr

ial court . . . . ” Tenn. R. App. P. 4(a). Rule 2

0 of the appellate rules and

Rule 5 of the civil pr

ocedure rules defi

ne filing with the court as “filing” or “receipt.” Tenn. R. App. P. 20(a); Tenn. R. Civ. P. 5.06. Other than describing the m ethod for filing by

mail, none of t

he rules more specifically descri be 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 o

pposing counsel, advises the court and opposing counsel that an appea

l has been taken. S econdly, designa tion of the judgment appea

led from and the

court appealed to cl

early describ

es the matter on appe

al. In this case th

ere is no question that

both the court and the opposing party were advised that an appeal had been taken. The notice4

of appeal was rec

eived and filed wit

hin the requisite tim

e period by the clerk of the court. It in cluded a certificate of service on opposi ng counsel. Additionally, t

here is no question tha

t the notice of appea

l contained the necessary elements. It noted the judgment appealed from and the court appealed to. The

only issue is whe

ther the method of filing should void the appeal in this ca

se. We agree

with the Court of A

ppeals that it should not.

Our determin ation to allow the ap

peal in this case to st

and is prompted by R

ule 1 of the Tennesse

e Rules of Appella

te Procedure and t

he specific circumstances of this case. Rule 1 cautions that “[t]hese rules shall be construed to secure the just, speedy, and ine xpensive determination o

f every proce

eding on its merits .” Tenn. R. App. P. 1 (emphasis ad ded). We agree with the Co urt of Appe als that pl aintiff’s notice of appeal tha

t was sent by fa

csimile was r

eceived and filed by

the trial court within t

he time allowe

d by the rules. Further, the opposi ng party was give

n appropriate notice . Neither the co urt nor the opposing party suffere

d any prejudic

e as a result of the

facsimile fi

ling.
Additionally, w

e allow the appeal

to proceed because

of the substantial comp

liance with the rul

es as well as the la

ck of prejudice in

this case. This decision does not sanction the use of facsimile filing in future cases. Although,

as plaintiff suggests , the legislature h as expressed its intention that facsim

ile transmissio

ns be accepted, T

enn. Code Ann. § 16- 1-113 (1994 Repl.),

and although we have implement ed a pilot program

to2 Counsel should be specifically aware that facsimile service is not allowed for the se rvice 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 de fined 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 study the use of f

acsimile transmissions, counse l should not rely on facsimile tra nsmission s for the fi ling of do cuments in t he future. We affirm the C

ourt of Appeals’ decision to allow this appeal to stand beca

use of the unique circum

stances presented a

nd based on the facts o

f this case only. 2

II.

The facts in this ca

se are not disputed. On Decembe r 10, 1991, City of Col

umbia police off

icers searched pl

aintiff's home

and vehicle. The off

icers seized appr

oximately 3 65 items of pers onal property believed to have been stolen in several burglaries. The items, seized pursuant to a search warrant, included jewelry, cam eras, televisions, stereo equipment, am

munition, wea

pons, and coins. Pla

intiff was arre sted and indict ed for p ossess ion of s tolen p ropert y.

After plaintiff's arrest, the officers contacted persons who had filed reports of sto

len property m

atching that seized f

rom plaintiff.

The officers then deli

vered approxim

ately 150 item

s of the seized prope

rty to those persons believe

d to be the lawful ow

ners.
On May 5, 1992, the criminal charges against plaintiff were dismissed becau se of a defect in the preparation of the search warrant3 Plaintiff also filed suit against the City of Columbia and various police officers in the

United States Distr

ict Court for the Mid

dle District of Te

nnessee alleg

ing civil rights violations under 42 U.S.C. § 1983. 6 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 f iled suit against the C

ity of Columbia based o

n provisions of Tennes see Code Annotated Section 40- 17-118, which provides in part:

Confiscated stolen property. - (a) Personal proper ty confi scated as stol en prop erty by a lawful officer of the state, a county or a municipality

of the state to be hel

d as evidence of a crime shall be promptly appraised, catalogued and photographed by the law enforcement agency retain ing cus tody of t he prop erty.

. . . (c) The state,

county and/or m

unicipal authority holding the property shall be responsible for the return of the property to the lawful owner and sh all 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 st

atute, plaintiff a

lleged in her com

plaint that the confiscated item

s were not stolen,

and that some of

the items wer

e not returned, while others were returned in a damaged condition. Plaintiff sough t damages for the damaged a nd los t prope rty. 3

On March 23, 1994,

defendant filed a m

otion under Rule 12.02(6) of the Te

nnessee Rules of Civ

il Procedure to dism

iss the4 This section provides: "The following actions shall be commenced within three (3) y ears from the accruing of the cause of action: (1) Act ion s fo r in jur ies to p ers ona l or real pro pert y; (2) Actions for the detention or conversion of personal property . . . ." Tenn. Code Ann. § 28-3-105(1), (2)(1995 Supp.). 7 complaint for failure to s tate a claim upon which reli ef could be granted. Defendant's m

otion also contended tha

t plaintiff's suit w

as barred by the twelve-month statute of limitations contained in the Government Tort Liability Act

(hereafter GT

LA). Tenn. C

ode Ann. § 29-20-305(

b)(1995 Supp.)(suits brought

under the GTLA

"must be com

menced within twelve (12) months after the cause of action arises."). The trial court found that the suit was untim

ely and dism

issed the case. T

he Court of Appealsreversed, holding that the governing statute of limitations was the threeyear statute a

pplicable to injuri

es to or for detentio

n, or conversion of personal property

contained in Tennes see Code Annotated Section 28-3- 105, 4 not the GTLA's

twelve-month statute of limit ations. Tenn. Cod

e Ann. § 29-20-305(b)(1995 Supp.). The Court of Appeals reasoned that

[a] clear re

ading of [Tennesse

e Code Annotated Section 4

0-17-118] rem

oves immunit

y of governmenta

l entities for liabil

ity for dam

age to property taken under the circumstances set forth therein. As can be clearly seen, § 40-17- 119 contains no lim

itation period. Und

er the circumstance s, we hold that the t hree year sta

tute of limitations se

t 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 S eptember 18, 1992, the date th

e property take

n from plaintif

f's home was

returned to her. We grant

ed this appeal to dete

rmine which li

mitation period c

ontrols.8 II. Defendant contends

that the GTLA' s twelve-mont h statute of limitations contr

ols because plaintif

f's complaint is essentially a tort claim filed against a municip ality which must be brought pursuant to the GTLA. See Simpson v. Sum

ner County , 669 S.W.2d 657 , 660 (Tenn. Ct.App. 1983), perm . to appeal denied , (Tenn. 1984)(o bserving that the langu

age and legislative histor

y of the GTL

A make it cle

ar that the act appl

ies to claims sounding in tort brought against governmental entities). In response, plaintif

f asserts that the t

hree-year st

atute of limita

tions in Tennessee Code Annotated Section 28-3-105 controls because suit was brought pursuant to the s pecific reme

dy provisions of T

ennessee Code Annotated Section 4 0-17-118, not und er the provisions of the GTLA. Since that statute c

ontains no limitat

ion period, the gene

ral limitation period applying to property loss or damage applies
.

Prior to the 1973 enac

tment of the GT

LA, the soverei

gn immunity doctrine protected

the state and its polit

ical subdivisions from tort liability. Kirby v. Mac on County , 892 S.W.2d 403, 406 (Tenn. 1 994). The doctrine, which has been a part of Tennessee law for well over a century, see Memphis v. Kim brough , 59 Tenn. 133 (1873) ; State v. Bank of Tenn. , 62 Tenn. 395 (1874) , provides that suit m ay not be brought against a governmental entity except to the extent that the governmental entity has consented t o 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 term s and conditions under which5 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 c orrupted area of our law. It

is the flaming swo

rd used by c

ities and counties

in Tennessee to ba

nish 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 co nquer their own citiz ens." Cooper v. Rutherf ord County, 531 S.W.2d 783, 785 (Tenn. 1975). 9 they consent to be sued , see Moore v. Tate , 11 S.W. 935, 939 (Tenn. 1889), including whe

n, in what forum

, and in what m

anner suit may

be brought. See Lynn v. Polk , 76 Tenn. 121, 139 (188 1).

The rule of im

munity was

"deeply rooted i

n feudal notions of the divine right of kings. In feudal England the King was at the very pinnacle of the powe

r structure and wa

s answerable to no c

ourt since 'the King can do no wrong.' " Cooper v. Rutherf ord County , 531 S.W.2d 783 , 786 (Tenn. 1975)(Henry, J., dissenting). 5 See also Webb v . Blou nt Mem. Hosp. , 196 F.Supp. 114, 116 (E.D. Tenn. 1961), aff'd , 303 F.2d 437 (6th Cir. 1962); Simpson v. Sum ner County , 669 S.W.2d a t 659; W. Keeton , Prosser and Keet

on on the Law of To

rts , § 131 (5th ed. 1984). However, despite the established history of sovereign immunity, our legislature has always had the

authority to wa

ive its protections.This authority i s found in Tennessee's Co

nstitution which provid

es that "[s]uits m

ay be brought against the State in such manner and in such courts as the Legislature may by law direct. " Tenn. Const. A rt. I, § 17.

When other state s began limiting or abolishing sovereign immunity either by statute or judicial decision, T ennessee's legislature followed the trend.

In explaining the GT

LA bill to the Ten

nessee House10

of Representative s, one of the me mbers of that bo

dy stated: [I]n 1957 three st

ates made som

e move to abolish or alter the governmental immunity as it applies to governmental entities within those states. By 1970, some 25 sta

tes [had] taken a

ffirmative action to abolish or restrict the defense of governmental i

mmunity in

tort actions brought against public agenci

es. In those states

that have abolished or altere

d governmental i

mmunities t

he results have been ac

hieved in three diff

erent ways. The f

irst and probably

the most disrupti

ve method of limited tort liability or tort immunity has come about by court decisions which have held the d octrine to be inapp licable. These decisions have

led to a quagmir

e of problems and [ha

ve] generally

thrown both the claimants and t

he governmenta

l bodies into confusion and chaos. The second method . . . has been in those states where the legislatures [have] passed acts which pr

ohibit the use of governmental immunities as a tort defense
. . . . The third meth

od, which is what t

his bill will do, is the one which limits governmental tort immunity , but at the same time provides procedures and stand

ards to protect the p

ublic interest. House Debate on L

imited Rem

oval of Governm

ental Tort Liabil

ity Act, May 2, 1973 (quote

d in Simpson v. Sum

ner County

, 669 S.W.2d a

t 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 decisi ons. Chapman v. Sul livan 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. Mac on County , 892 S.W.2d a

t 406. This "genera

l immunity " is codified in11

Tennessee Code Annotated Section 29-20-201(a), which provides that "[e]xcept as may be otherwise provided in this chapter, all governme ntal entities shall be im

mune from

suit for any inj ury which m ay 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 S upp.). Imm unity is then wai

ved in limited and enumerated inst ances for certain injuri es. See e.g. , Tenn. Code Ann. § 29-20-202(a) (1980 Repl.)(im munity rem

oved for injuries r

esulting from the negligent operation of a motor vehicle or other equipment by an employee i

n the scope of em

ployment); Tenn. Code Ann. § 29-20- 203(a)(1995 Supp.)(immunity removed for inj uries caused by a defective, unsafe, or danger

ous condition on a public r oadway or sidew

alk); Tenn. Code Ann. § 29-20-204(a)(1980 Repl.)(immunity rem oved for injuries caused by danger

ous or defective con

ditions associated w

ith public structures or im

provements); &

Tenn. Code Ann.§ 29-20-205 (1980 Repl.)(imm

unity remove

d for injuries ca

used by the neglige

nce of governmental employees with certain exceptions).

It is true, as def

endant argues, tha

t the GTLA provi

des a comprehensive scheme for tort a ctions against go vernmental entities. See Chapman v. Sul

livan County , 608 S.W.2d at 582. Nonetheless, "if a specific or specia

l statute provides for

a remedy and waiver of im

munity for injuries that are exp ressly excluded from the opera tion 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 t he12

GTLA does not encompass every tortious act by a governm ental entity. In fact, the GTL

A "leaves signific ant areas of activ ities either protec

ted by immunity or subject to independent bodies of law." Id . at 609. See also Simpson v. Sum

ner County , 669 S.W.2d at 660-62 (GTLA does not cover contract disputes with governmental entities).

By its own term

s, Tennessee Code

Annotated Section 4

0-17- 118 creates a separ

ate cause of actio

n against governm

ental entities for t

he return of confisca

ted property and

for damages in

the event of dam

age or destruction to the pro

perty. The s

tatute does not conditio

n recovery on proof of negligence on the part of the governmental entity. Thus, while an aggrieved property owner may, in certain lim ited 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 m

ay seek relief

under Section 40-17- 118 regardless of how t

he damage or de struction occurred . The two provisio ns are not mutually exclusive. Th ey exist independent o f one another. See Jenkins v. Loudon Co. , 736 S.W.2d a t 607-09. This concl

usion is apparent from the text of

the two statutes, i s consistent with tra ditional rules of statutory constructi on, Sutherland on Statut ory Construction, § 23.10 (Sands 5th ed. 1993), and is bolstered by the fact that the confiscated property statute

and the GTLA w

ere enacted the sa

me year. Had the General Assem

bly intended the la

tter to absorb the fo

rmer, it wo

uld simply have included the action as an enumerated exception to immunity under the GTLA.13 The GTLA itse

lf provides that a tw

elve-month lim

itation period applies "in those circumstances where immunity fr om suit has been removed as provided for in this chapter ." Tenn. Code A nn. § 29-20- 305(a)(1995 Supp.)(emphasis added). Plaintiff's complaint seeks damages not under the GTL

A but pursuant to Ten

nessee Code Annotat

ed Section 40-17-118. Her co

mplaint specif

ically refer

ences that statute a

nd does not mention any of the provisions of the GTLA. Because the defendant's immunity from suit has be

en removed by

a statute independen

t of the GTLA and plaint

iff's suit is based o

n that independent stat

ute, we conclude that the statute of li

mitations provide

d in the GTLA fo

r circumstanc

es in which immunity "has been rem oved as provided for in [that] chapter" does not apply. Sinc

e the statute upon whi

ch plaintiff bases he

r cause of action does not contain a limitation period, the applicable time period is that set forth in Title 28, C

hapter 3. Tenn. Code Ann. § 28-3-101 (1980 Repl.)("All ci

vil actions . . . s

hall be comm

enced after the cause of action has accrued, within the periods prescribed in this chapter unless otherwise expressly provided .")(emphasi s added). That ap plicable time p

eriod for causes of action for injuries to, detention of, or conversion of personal property is thre

e years as set

forth in Tennessee

Code Annotated Sec

tion 28-3-105. Accordi

ngly, we aff

irm the judgm

ent of the Court of A

ppeals setting aside the dism

issal of the case an

d remand to the t

rial court for further proceedin

gs. Costs shall be pai

d by defendant.

__________________________________ Penny J. White, Justice14

CONCUR: Anderson, C.J. Drowota, Reid,

Birch, J.J.