                  IN THE COURT OF APPEALS OF TENNESSEE
                      WESTERN SECTION AT NASHVILLE


RENEE HENDERSON,                      )
                                      )
            Plaintiff/Appellee,       ) Davidson Circuit No. 95C-899
                                      )
VS.                                   ) Appeal No. 01A01-9610-CV-00463
                                      )
JERRY HARLAN, d/b/a
LODGE QUARTERS RIVERGATE,
                                      )
                                      )
                                      )
                                                                  FILED
            Defendant/Appellant.      )                            June 11, 1997

                                                      Cecil W. Crowson
          APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                                                     Appellate Court Clerk
                       AT NASHVILLE, TENNESSEE
                THE HONORABLE WALTER C. KURTZ, JUDGE




PHILLIP R. NEWMAN
MANIER, HEROD, HOLLABAUGH & SMITH
Nashville, Tennessee
Attorney for Appellant


WORRICK G. ROBINSON, IV
ADAMS & WHITEAKER, P.C.
Nashville, Tennessee
Attorney for Appellee




REVERSED AND DISMISSED




                                                         ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.
    Jerry Harlan, d/b/a Lodge Quarters Rivergate (“Defendant”) appeals the judgment
of the circuit court arguing that the circuit court erred in refusing to allow him to voluntarily

dismiss his appeal from general sessions court. For the reasons stated hereafter, we

reverse the judgment of the circuit court.



                                 PROCEDURAL HISTORY



       In this replevin action, Renee Henderson (“Plaintiff”) filed a complaint in general

sessions court against Defendant seeking possession of her personal property which the

Defendant was holding without her consent. Defendant filed a separate complaint in

general sessions court against Plaintiff for expenses incurred in the moving and storage

of Plaintiff’s personal property and for damage that the Defendant had incurred due to

Plaintiff’s tenancy. General sessions court granted a judgment in favor of the Plaintiff in

the amount of $1,500.00, awarded Plaintiff possession of her personal property, and

dismissed Defendant’s companion suit. Defendant appealed the judgment of general

sessions court to circuit court. Plaintiff thereafter filed an amended complaint in circuit

court seeking compensatory damages in the amount of $10,000.00 and punitive damages

in the amount of $20,000.00. After answering Plaintiff’s amended complaint, Defendant

filed a notice of voluntary dismissal of its appeal from general sessions court. Upon

denying Defendant’s notice of voluntary dismissal, the circuit court awarded Plaintiff a

judgment in the amount of $9,000.00 and dismissed Defendant’s counter-complaint against

the Plaintiff.



                                             LAW



       The sole issue before this Court is whether the circuit court erred in refusing to allow

the Defendant voluntarily to dismiss his appeal from a judgment in general sessions court

after the Plaintiff filed an amended complaint in circuit court and after the Defendant filed

an answer to the amended complaint.



       It is well-settled under Tennessee law that a party appealing a general sessions



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court judgment to circuit court has the right to dismiss the appeal at any time 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. Hagler, slip op. (Tenn. Ct. App.

June 25, 1985). Our supreme court in C.B. Donaghy & Co. v. McCorkle, 98 S.W. 1050

(Tenn. 1907), stated that “[i]t is the general rule that the appellant may have his own

appeal dismissed at any time while the cause remains within the jurisdiction of the

appellate court.”



       Upon dismissal of an appeal from general sessions court, the judgment 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) (stating appellant had a right to dismiss his

appeal from the judgment of the justice of the peace court to chancery court and have the

judgment of the justice of the peace court affirmed).



       In Day v. Hagler, slip op. (Tenn. Ct. App. June 25, 1985), this Court addressed an

issue similar to the one in the case at bar. The issue in Day was whether a party appealing

from a general sessions court judgment to circuit court may dismiss his appeal when doing

so would prevent his non-appealing adversary from proving additional damages in circuit

court. In holding that the appellant could dismiss his appeal, this Court stated that “[t]he

law is clear that a party appealing a General Sessions judgment to Circuit Court has the

right to dismiss the appeal at any time prior to trial in Circuit Court.” Day, slip op. at 2. In

Day, the court said:

              Additionally, there is no injustice apparent. Plaintiff’s additional
              expense sought in the Circuit Court arose after the General
              Sessions judgment would have become final had there been
              no appeal. There would be no cause of action for those
              expenses in that eventuality. In short, the plaintiff is in the
              same position as if no appeal had been taken by the
              defendant. She still has her judgment for $3,246.00. Where
              is there an injustice? Day, slip op. at 2.




       Although Plaintiff cites the case of Ware v. Meharry Medical College, 898 S.W.2d

181 (Tenn. 1995), for the proposition that an appellant loses his right to dismiss his appeal


                                               3
from a general sessions court judgment once an amended complaint and an answer to the

amended complaint are filed in circuit court, Plaintiff’s proposition is in error. The Supreme

Court in Ware held that a party may appeal from a judgment in general sessions court to

circuit court and amend the complaint to seek damages beyond the monetary jurisdictional

limits of general sessions court. The court in Ware did not modify the long-standing

principle that an appellant may dismiss his appeal from a judgment of the general sessions

court at any time prior to trial in circuit court. Thus, in the present case, the circuit court’s

refusal to allow the Defendant voluntarily to dismiss his appeal from the judgment of the

general sessions court was in error.



       The judgment of the circuit court is hereby reversed and dismissed. Costs on

appeal are taxed to Appellee for which execution may issue if necessary.




                                                           HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




LILLARD, J.




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