Parris Roofing and Sheet Metal Co., Inc. et al. v. Timothy Spurling
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SPECIAL WORKERS’ COMPENSATION APPEALS PANEL
AT KNOXVILLE February 28, 2011 Session
PARRIS ROOFING & SHEET METAL CO., INC. ET AL. v. TIMOTHY
SPURLING
Appeal from the Chancery Court for McMinn County
No. 2010-CV-145Jerri S. Bryant, Chancellor
No. E2010-01530-WC-R3-WC -FILED-JULY 13, 2011
Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been
referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of
findings of fact and conclusions of law. The employee and his employer filed separate
workers’compensation complaints on the same dayat different times,in differentcourts,and in
different counties. The employer filed its cause of action in McMinn County Chancery Court on
April 29, 2010, at 3:53 p.m. The employee’s action was filed in Polk County Circuit Court on the
same day, but the time of filing was not noted by the court clerk. The employee moved to dismiss
the employer’s action on the basis of prior suit pending. The employee’s motion was supported
byan affidavitfrom his attorney’s assistant stating that the employee’s suit was filed before 3:03
p.m. on April 29, 2010 and therefore prior to the time the employer filed suit as designated by the
court clerk in McMinn County. The trial court granted theemployee’s motion and dismissed the
employer’s action. We affirm the judgment of the trial court.
Tenn. Code Ann. § 50-6-225(e) (2008) Appeal as of Right; Judgment of the Chancery Court
Affirmed
JON KERRY BLACKW OOD , SR . J., delivered the opinion of the Court, in which SHARON G. LEE ,
J. and E. RILEY ANDERSON , SP . J., joined.
M. George Waters and James Allen Callison, Lawrenceville, Georgia, for the appellants, Parris
Roofing & Sheet Metal Co., Inc. and Gallagher Bassett Services.
R. Jerome Shepherd, Cleveland, Tennessee, for the appellee, Timothy Spurling.
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MEMORANDUM OPINION
Factual and Procedural Background
Timothy Spurling (“Employee”) alleged that he sustained a compensable injury, and on April
29, 2010, Employee and Parris Roofing & Sheet Metal, Inc. (“Employer”), participated in a Benefit
Review Conference (“BRC”). The BRC did not result in a settlement, and an impasse was declared
on that date at 1:55 p.m. Later that afternoon, Employer filed suit to determine the rights of the
parties in the Chancery Court of McMinn County, and the Clerk and Master of that court noted on
the complaint that it was filed at 3:53 p.m. On the same day, Employee also filed a cause of action
regarding the matter in the Circuit Court of Polk County, and the clerk of the that court recorded the
date, but not the time, of the filing on Employee’s complaint. Venue was proper in either county.
Employee filed a motion to dismiss the McMinn County action pursuant to the doctrine of
prior suit pending. The motion was supported by an affidavit from Amanda Lee, legal secretary for
Employee’s attorney. In her affidavit, Ms. Lee stated, “I filed [Employee’s] case with [the] clerk of
the Polk County Circuit Court before 3:03 p.m. on April 29, 2010 because I called [Employee’s
attorney] at 3:03 p.m. immediately after filing same with the Clerk.”
The trial court granted Employee’s motion and dismissed this action, stating, “the Affidavit
supplied by [Employee’s] attorney creates a presumption even without the clerk’s notation that his
case was filed first and thus became pending prior to [Employer’s] case in this court.” Employer
appeals.
Analysis
The issue we address in this appeal is whether the trial court erred by considering extrinsic
evidence to determine the time of day the employee’s suit was filed. Since there can only be one suit
for recovery of workers’ compensation benefits arising out of the employee’s alleged injury, the trial
court had to determine which suit was filed first. The doctrine of prior suit pending provides that
where two courts have concurrent jurisdiction over a matter, the first of the two to acquire
jurisdiction takes exclusive jurisdiction. Estate of McFerren v. Infinity Transp., LLC , 197 S.W.3d
743, 746 (Tenn. Workers Comp. Panel 2006). The prerequisites to invocation of the doctrine are that
the two cases involve 1) identical subject matter; 2) suits between the same parties and 3) that the
former suit be pending in a court of this state having subject matter jurisdiction and jurisdiction over
the parties. Id. It is undisputed that these prerequisites have been met in the instant matter. This
appeal does not involve any disputed issues of fact, and therefore presents only a question
of law. We review the trial court’s conclusions of law de novo upon the record with no
presumption of correctness. Seiber v. Reeves Logging, 284 S.W.3d 294, 298 (Tenn. 2009); Ridings
v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).
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The Tennessee Supreme Court has held that for purposes of the prior suit pending
doctrine, the pendency of an action begins with the filing of a complaint. West v. Vought Aircraft
Indus., Inc. 256 S.W.3d 618, 624-25 (Tenn. 2008).1Tennessee Rule of Civil Procedure 5.06
requires trial court clerks to “endorse upon every pleading and other papers filed with the clerk in
an action the date and hour of the filing.” Typically, the clerk’s stamp showing the date and time
of filing on the complaint itself will provide proof of when the complaint was filed. The clerk of
the Polk County Circuit Court, however, failed to comply with Rule 5.06. In the absence of
evidence to the contrary, we would presume that the McMinn County Clerk and Master’s
specific notation of the time of filing on the Employer’s complaint mandates a finding that the
McMinn County action was filed first. However, Employee presented evidence, in the form of
Ms. Lee’s affidavit, that the Polk County action was filed first, notwithstanding the absence of
any notation by the court clerk to that effect. Employer argues that the trial court erred by
considering this evidence.
In West, the Court recognized that because the court clerk is “uniquely well-situated to
memorialize important occurrences in the course of a lawsuit,” the clerk constitutes an appropriate
source of information in determining when a case was filed, noting the clerk’s status as a public
officer having a statutory duty to perform court clerical functions pursuant to Tennessee Code
Annotated sections 18-1-101, 104 (1994),2the clerk’s duty under Tennessee Rule of Civil Procedure
5.06 to endorse the time and date upon all filed pleadings, and the clerk’s maintenance of offices
equally accessible to both parties. West, 256 S.W.3d at 624. While these observations support the
conclusion that it is appropriate to rely on the records of the clerk in determining when a suit was
filed, they do not preclude the consideration of other evidence where, as in the instant matter, the
records of the clerk are deficient because the clerk failed to adhere to procedural mandates.
Trial courts’ decisions concerning the admission or exclusion of evidence “are generally
accorded a wide degree of latitude and will only be overturned on appeal where
there is a showing of abuse of discretion.” Otis v. Cambridge Mut. Fire Ins. Co., 850
S.W.2d 439, 442 (Tenn. 1992). Neither the Rules of Civil Procedure, the Rules of Evidence, nor
any case law explicitly prohibits a trial court from considering extrinsic evidence to correct or
clarify an error or omission by a court clerk. We therefore conclude that the trial court did not
1
The issue in West was whether the pendency of a case begins with the filing of the complaint or
rather with service of process.
2
Tennessee Code Annotated section 18-1-101 (2009) provides: “Each of the courts has a clerk, elected
or appointed for a term of years, whose duty it is to attend the court and perform all the clerical functions of
the court.” Tennessee Code Annotated section 18-1-104 (2009) provides: “Each deputy clerk shall take the
oath appointed for the qualification of public officers, and an oath faithfully to discharge the duties of the
office to the best of the deputy clerk’s skill and ability.”
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IN THE SUPREME COURT OF TENNESSEE
abuse its discretion by accepting and considering Ms. Lee’s affidavit in determining when the
Polk County action was filed. Ms. Lee’s affidavit constituted evidence that Employer’s complaint
was filed first, and other evidence does not preponderate to the contrary.
Employee asserts that this appeal is frivolous and requests an award of damages pursuant to
Tennessee Code Annotated section 50-6-225(h)(2008). We find that the appeal raised substantial
legal issues and therefore deny Employee’s request.
Conclusion
The judgment of the trial court is affirmed. The case is remanded for entry of an order
consistent with this opinion. Costs are taxed to Parris Roofing & Sheet Metal Co., Inc. and Gallagher
Bassett Services, and their surety, for which execution may issue if necessary.
______________________________________
JON KERRY BLACKWOOD, SENIOR JUDGE
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IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
PARRIS ROOFING & SHEET METAL CO. ET AL. v.
TIMOTHY SPURLING
Chancery Court for McMinn County
No. 2010-CV-145
No. E2010-01530-WC-R3-WC - FILED - JULY 13, 2011
ORDER
This case is before the Court upon the motion for review filed on behalf of Parris Roofing
& Sheet Metal Co., Inc. and Gallagher Bassett Services pursuant to Tenn. Code Ann. §
50-6-225(e)(5)(A)(ii), the entire record, including the order of referral to the Special Workers’
Compensation Appeals Panel, and the Panel’s Memorandum Opinion setting forth its findings of fact
and conclusions of law.
It appears to the Court that the motion for review is not well-taken and is, therefore, denied.
The Panel’s findings of fact and conclusions of law, which are incorporated by reference, are adopted
and affirmed. The decision of the Panel is made the judgment of the Court.
Costs are assessed to Parris Roofing & Sheet Metal Co., Inc. and Gallagher Bassett
Services, and their surety, for which execution may issue, if necessary.
PER CURIAM
Sharon G. Lee, J., not participating
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