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Clemmons v. Nesmith

Court of Appeals of Tennessee, Nashville

November 4, 2016

SAMUEL C. CLEMMONS, ET AL.
v.
JOHNNY NESMITH

          Assigned on Briefs September 30, 2016

         Appeal from the Chancery Court for Williamson County No. 43480 Michael Binkley, Judge

         In this accelerated interlocutory appeal, Appellants appeal from separate orders denying two motions for recusal filed in this case. As to denial of the first motion for recusal, we hold that Appellants failed to file a timely appeal pursuant to Rule 10B of Rules of the Supreme Court of Tennessee. As to the denial of the second recusal motion, we hold that the recusal motion was ineffective because it was not signed by local counsel as required by Rule 19 of the Rules of the Supreme Court of Tennessee. In the absence of a timely filed appeal from an effective recusal motion, we dismiss this appeal.

          Joshua David Wilson, Brentwood, Tennessee, for the appellants, Samuel C. Clemmons, and Shannon N. Clemmons.

          Virginia Lee Story, Franklin, Tennessee, and Kathryn Lynn Yarbrough, Nashville, Tennessee, for the appellee, Johnny Nesmith.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Richard H. Dinkins, J., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         This is an appeal from the denial of two motions for recusal. We will only discuss the procedural history of this case as it directly relates to this accelerated interlocutory appeal. On August 4, 2014, Defendants/Appellants Samuel C. Clemmons and Shannon N. Clemmons (together with Mr. Clemmons, "Appellants"), along with their company, Elite Emergency, LLC filed a lawsuit in Williamson County Circuit Court ("circuit court case") against Johnny Nesmith, Russell Morrow, Wanda Jones, Kelly Pendergrass, Tiffany Jones, and other parties. On August 27, 2014, Plaintiff/Appellee Mr. Nesmith filed an action against Appellants in the Williamson County Chancery Court ("chancery court case"). Appellants thereafter filed a motion to dismiss the chancery court case, arguing that the claims asserted therein were compulsory counter-claims that must be raised in the pending circuit court case. This appeal results solely from the chancery court case.

         Appellants allege that while the motion to dismiss was pending, Judges Joseph A. Woodruff and Michael Binkley engaged in an ex parte communication with counsel for some of the defendants in the circuit court case. The alleged communication took place on November 21, 2014. On November 25, 2014, Judge Woodruff entered an order sua sponte staying discovery in the circuit court case.

         The trial court, Judge Binkley presiding, eventually denied the motion to dismiss the chancery court case by order of March 31, 2015. Appellants thereafter filed a motion to consolidate the two cases for limited discovery purposes, which was eventually granted by agreement of the parties. The parties engaged in several discovery disputes, including a dispute over whether the discovery stay in the circuit court case should be lifted. Eventually, the stay was lifted less than a month before the scheduled trial date in the chancery court case. Despite this order, the parties continued to engage in discovery disputes, which included the manner in which discovery was to be served and the over-breadth of certain discovery requests.

         Eventually, on April 15, 2016, Appellants filed their first motion for disqualification in the chancery court case. In their motion, Appellants raised the existence of the alleged November 21, 2014 ex parte communication between Judges Woodruff and Binkley and counsel for some of the defendants in the circuit court case. The parties proceeded to trial on April 25, 2016, but the trial court had not yet ruled on the disqualification motion. After the second day of trial, on May 11, 2016, the trial court entered a written order denying the recusal motion. The trial proceeded for two more days.

         During the May 20, 2016 trial date, Appellants alleged that "Judge Binkley again demonstrated bias against []Appellants in Court." Accordingly, on August 4, 2016, Appellants filed a "Supplemental and Renewed Motion for Disqualification." The motion alleged that Judge Binkley acted inappropriately in removing Appellants' children from open court during the proceedings. An order was eventually entered on September 21, 2016, denying the recusal motion. Appellants filed an ...


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