Alonzo Bonner v. Transcon Corp.

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON ________________________________________

ALONZO BONNER, FROM THE SHELBY COUNTY CIRCUIT COURT; No. 120511-6 Plaintiff-Appellant, THE HONORABLE GEORGE BROWN, JUDGE

Vs. C.A. No. W1999-02205-COA-R3-CV FILED TRANSCON TRUCKLINE CORP., AFFIRMED Kim G. Sims of Memphis, For ET AL, Appellant January 11, 2000 G. Ray Bratton and Gary R. Defendants-Appellees. Wilkinson of Farris, Hancock, Cecil Crowson, Jr. Gilman, Branan & Hellen of Appellate Court Clerk Memphis; For Appellees _____________________________________________________________________

MEMORANDUM OPINION1 _____________________________________________________________________________

CRAWFORD, J.

This is an appeal from an order of the circuit court of Shelby county granting the defen dant-a ppellee ’s motion to quash a petition for writ of certiorari filed by plainitffappe llant.

Alonzo Bonner petitioned the circuit court for the writ, alleging that he had failed to file a timely appeal from general sessions court, because he was mentally unstable and did not und erstand the prop er proce dure in f iling an a ppea l.

Bonner had filed a number of case s in general sessions court, which w ere consolidated and tried without an attorney representing him. There had been one continuance due to Bonne r’s not ha ving reta ined co unsel. At the time the instant case was tried in general sessions court, Bonner stated that he wished to proceed without the assistance of counsel. After trial, a judgment was entered for the defendants, Transcon Trucklines, Corp., and Johnny Curbow on August 3, 1988.2 The petition for certiorari

1 Rule 10 (Court o f Appe als). Memorandum Opinion. – (b) the Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 2 After the August 3, 1988 judgment, another general sessions suit was dismissed on the bas is of res judic ata. This case is not a pa rt of this ap peal.

was filed on September 30, 1988, and the appell ee resp onde d by filing a m otion to quash, which w as gran ted by the trial court. The only issue for review on app eal is wheth er the trial co urt erred in grantin g the m otion to q uash th e writ of ce rtiorari.

The appeal comes before this Court at this time because the Court stayed further proceedings by order entered June 19, 1990, due to Transcon’s bankruptcy proceeding and the automatic stay protection. Upon its own investigation, this Court learned that on May 13, 1999 Transcon’s bankruptcy case was ordered closed by the United States Bankruptcy Court for the Central District of Califo rnia, Rive rside Div ision. On June 30, 1999 this Court entered an order lifting the automatic stay and pe rmitted th e appe al to procee d.

In Uselto n v.Price , 292 S.W.2d 788 (Tenn. Ct. App. 1956), the Court said:

The certiorari h as a m uch m ore exte nded applica tion in this state than in England. It has been adopted, with us, as the almost universal method by which the circuit courts, as courts of general jurisdiction, exercise control over inferior jurisdictions, however constituted, and whatever may be their course of proceeding.

Id. at 791. (Quoting Mayor, etc., of City of Nashv ille v. Pearl, 30 Tenn . (11 Hu mph.) 249 (1850). Granting certiorari to review the proceed ings of a lower co urt is a matter of discretion for the co urt and is not a m atter of righ t. Id. See also State ex rel. Karr v. Taxing District o f Shelby Coun ty, 84 Ten n. 240.

A writ of certiorari is authorized as a substitute for appeal pursuant to T.C.A. 27-8-102, but is not a matter of right. A writ of certiorari shall be granted only to prevent substantial wrong . Uselton 292 S.W.2d at 792. Certiorari, as a substitute for an appe al, is availa ble only w hen “the appea l was de feated :”

1. By the oppressive or erroneous act of the court or justice. 2. By the wilful or negligent act of the clerk. 3. By the contrivance or procurement of the ad verse party. 4. By inevitab le accide nt . 5. By the blameless misfortune of the petitioner.

Uselton at 793.

In General Motors Acceptance Corp. v. Den nis, 675 S.W. 2d 489 (Te nn. Ct. *3 App. 1984) , this Court affirmed the circuit court’s denial of a petition for a writ of certiorari and he ld that a m isunde rstandin g betw een the defen dant an d his atto rney about who would appear and seek a continuance was not “inevitable accident” or “blameless misfortune of the petitioner” that would allow the remedy of certiorari after the time for an appeal by right had expired. The Dennis Court, in holding that the trial court did not abuse its discretion in denying the writ, said: “[u]ndoubtedly, the trial court did not feel the conduct of appe llants was blameless and we do not find anything in the record to cause us to disagree with the trial court.” Id. at 491.

In Rutherford v. Rogoish, 1990 WL 38558 (Tenn. Ct. App.), the eastern section of the Tennessee Court of Appeals held that where the trial court found that the appellant failed to show any reasonable grounds for her fa ilure to file a timely app eal, the denial of a writ of certiorari was proper. The Rutherford Court followed the reasoning of the Dennis Court, holding that the record did not reveal that the appe llant’s right to appeal had been “thwarted to the extent a resort to certiorari was justified” and found no reason, other than the appellant’s negligence, for her failur e to appe al. Rutherfo rd at *1.

In the instant case, we find nothing in the record to cause us to disagree with the court below. The record does not substantiate the appellant’s claim that a mental disability caused his failure to file a timely appeal. Accordingly, we hold that the trial court did not abu se its discre tion in qu ashing the writ of c ertiorari.

The order o f the trial court is affirmed, a nd cos ts of app eal are a sessse d to appellant, Alonzo Bonner.

____________________________ W. FRANK CRAWFORD, PRESIDING JUDGE,W.S.

CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

___________________________________ HOLLY KIRBY LILLARD