                      IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT JACKSON



SUSIE BUCHANAN,                      )
                                     )
       Plaintiff/Appellee,           )      Shelby Circuit No. 76079 T.D.
                                     )
vs.                                  )

MEMPHIS LIGHT, GAS & WATER
                                     )
                                     )
                                                                       FILED
                                            Appeal No. 02A01-9610-CV-00245
DIVISION,                            )
                                     )                                 November 14, 1997
       Defendant/Appellant.          )
                                                                       Cecil Crowson, Jr.
                                                                       Appellate C ourt Clerk




               APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                           AT MEMPHIS, TENNESSEE



                   THE HONORABLE JAMES E. SWEARENGEN, JUDGE


For the Plaintiff/Appellee:          For the Defendant/Appellant:

Brett B. Stein                       James F. Greer
Memphis, Tennessee                   Memphis, Tennessee




                                     REVERSED AND DISMISSED




                                     HOLLY KIRBY LILLARD, J.



CONCUR:


ALAN E. HIGHERS, J.


DAVID R. FARMER, J.
                                              OPINION

        This case involves a de novo appeal from general sessions court to circuit court. The plaintiff

obtained a default judgment in general sessions court. On appeal to circuit court, the defendant

sought to assert the applicable statute of limitations. The trial court ruled that the defendant had

waived the defense by failing to raise it in the general sessions court. We reverse.

        The Plaintiff/Appellee Susie Buchanan (“Buchanan”) filed a civil warrant in the General

Sessions Court in Shelby County. She alleged that on November 9, 1992, Memphis Light, Gas, and

Water (“MLG&W”) damaged her property in Memphis, Tennessee. She sought damages under the

Tennessee Governmental Tort Liability Act (TGTLA), Tennessee Code Annotated §§ 29-20-101

et seq. Buchanan’s civil warrant in General Sessions Court was filed on October 12, 1995.

MLG&W did not appear in General Sessions Court to contest the claim, and default judgment was

entered for the plaintiff on February 14, 1996. MLG&W appealed to the Circuit Court for the

Thirtieth Judicial District at Memphis.

        On June 28, 1996, MLG&W filed a motion to dismiss in Circuit Court, asserting that the

plaintiff’s claim was barred because she failed to file her lawsuit within the one-year statute of

limitations period. The trial court denied the motion to dismiss. An interlocutory appeal was

granted, pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The issue on appeal is

whether MLG&W is barred on appeal to the Circuit Court from pleading the applicable statute of

limitations as a defense, if the defense was not raised in the General Sessions Court. Buchanan does

not dispute that her lawsuit was filed more than one year after the date of the accident at issue in this

case.

        This appeal involves a question of law. We review the trial court’s legal conclusions de novo

with no presumption of correctness. Tenn. R.App. P. 13(d). See Carvell v. Bottoms, 900 S.W.2d

23, 26 (Tenn. 1995).

        The parties do not dispute that the applicable statute of limitations under the TGTLA is a

one-year statute of limitations.      See Tenn. Code Ann. § 29-20-305(b)(1997).               Buchanan

acknowledges that her lawsuit was filed more than one year after the accident at issue. Therefore,

the only issue raised in this interlocutory appeal is whether MLG&W waived its statute of limitations

defense by not raising it in General Sessions Court.
         In this appeal, Buchanan relies on Tennessee Code Annotated § 16-15-505 (1994), which

provides:

         Objections to the jurisdiction of the general sessions court, before which the warrant
         is returned, shall be made before the hearing, or they will be considered as waived.

Buchanan asserts that this statute takes priority over Tennessee Code Annotated § 20-11-108 (1994),

which states:

         In appeals from courts of general sessions, the circuit court shall supply any defect
         in the proceedings of the inferior jurisdiction, as though the suit had been
         commenced in the circuit court.

Buchanan’s argument is without merit.          MLG&W’s asserted defense does not involve the

jurisdiction of the General Sessions Court; Section 16-15-505 is not applicable. An appeal from

General Sessions results in a de novo trial in the Circuit Court -- there is no presumption of

correctness in the lower court’s judgment. The case is tried as if there had been no previous

proceeding. Hohenberg Bros. v. Missouri Pacific R.R. Co., 586 S.W.2d 117, 119 (Tenn. App.

1979).

         This Court’s decision in Wachovia Bank Card Services v. Overton, No. 03A01-9510-CV-

00373, 1996 WL 64004 (Tenn. App. Feb. 15, 1996) is analogous. In Wachovia, the plaintiff filed

a lawsuit in General Sessions Court, but failed to obtain service of process on the defendant. On

appeal to Circuit Court, the plaintiff argued that by appealing the judgment to Circuit Court, the

defendant entered a general appearance and thereby submitted to the Court’s jurisdiction. This

argument was rejected:

         Since the appeal from Sessions Court was for a trial de novo, and the Rules of Civil
         Procedure became applicable to the case upon appeal, the Rules allow the defendant
         to raise all defenses, including a challenge to personal jurisdiction of the Court in
         either a pre-trial motion or a responsive pleading.

Id., at **2 (citing Landers v. Jones, 872 S.W.2d 674, 676 (Tenn. 1994)).

         Therefore, the trial court in this case erred in denying MLG&W’s motion to dismiss on the

basis that MLG&W waived its statute of limitations defense by not raising it in General Session

Court. The trial court’s decision must be reversed. Since it is undisputed that Buchanan filed her

lawsuit beyond the applicable one-year statute of limitations, on remand, Buchanan’s lawsuit must

be dismissed.




                                                   2
       The decision of the trial court is reversed, and the cause is remanded for entry of an order

dismissing Appellee’s lawsuit. Costs on appeal are taxed to the Appellee, for which execution may

issue if necessary.




                                     HOLLY KIRBY LILLARD, J.

CONCUR:



ALAN E. HIGHERS, J.



DAVID R. FARMER, J.




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