FILED

May 6, 1996

Cecil W. Crowson

Appellate Court 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. Loser, Judge

political subdivision of the )

State of Tennessee, ) No. 01S01-9508-CV-00132

)

Defendant/Appellant. )

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.
1The Governmental Tort Liability Act is codified at Tennessee Code Annotated Section

29-20-101 S -407.

2

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
3

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
4

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
2Counsel 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

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
3Plaintiff 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

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
4This 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

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 threeyear 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.
8

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
5The 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

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
10

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
11

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
12

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. 
13

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
14

CONCUR:

Anderson, C.J.

Drowota, Reid, Birch, J.J.