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Clemmons v. Nesmith

Court of Appeals of Tennessee, Nashville

February 6, 2017


          Remanded by the Supreme Court on December 19, 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. After thoroughly reviewing the record on appeal, we affirm the decision of the trial court to deny the recusal motions.

         Tenn. Sup. Ct. 10B Interlocutory Appeal as Right; Judgment of the Chancery Court Affirmed

          Joshua David Wilson, Brentwood, Tennessee, and Brandy Murphy Lee, Birmingham, Alabama, 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.




         This is an appeal from the denial of two motions for recusal, which has already been the subject of one Opinion by this Court. See Clemmons v. Nesmith, No. M2016-01971-COA-T10B-CV, 2016 WL 6583790 (Tenn. Ct. App. Nov. 4, 2016) (hereinafter "Clemmons I"). According to our prior Opinion:

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").

Clemmons I, 2016 WL 6583790, at *1. Mr. Nesmith is the biological father of Ms. Clemmons. In addition, it appears that a federal case was also pending involving similar subject matter, parties, and attorneys as the state court cases. As we explained in Clemmons I:

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.

Id. On November 25, 2014, Judge Woodruff entered an order sua sponte staying discovery in the circuit court case pending resolution of the related federal court case.

         The trial court, Judge Binkley presiding, eventually denied the motion to dismiss the chancery court case by order of March 31, 2015. Therein, the trial court ruled that the claims in the chancery court action were "not logically related" to the claims in the circuit court action. Appellants later filed a motion to consolidate the two cases for limited discovery purposes. An order was entered consolidating the cases for discovery purposes of September 25, 2015.

         Appellants filed a motion to lift the discovery stay in the circuit court action on September 30, 2015. Specifically, Appellants cited their need to depose one of the defendants from the circuit court action, Wanda Jones, to defend against the chancery court claims. According to Appellants, they had previously subpoenaed Ms. Jones to appear for a deposition; however, the subpoena was quashed due to the stay on discovery in the circuit court case. Appellants argued that the "order of consolidation cannot be given the intended effect without lifting the stay as to the claims and discovery with" the circuit court defendants.

         The motion to lift the stay was heard on or about January 14, 2016. Judge Binkley thereafter sent the parties a letter indicating that he would enter an order on the motion "by the end of February 2016."[1] No order on the motion was entered, however, until April 4, 2016, approximately twenty days prior to the scheduled trial in the chancery court action. On April 4, 2016, Judge Binkley lifted the stay on discovery in the circuit court case, noting that the federal court had indicated that no stays of the state court actions were necessary. Thereafter, the parties engaged in a multitude of discovery disputes. In one instance, the trial court ordered Appellants to propound discovery to defendants in the circuit court action by 9:00 am on April 13, 2016, the day after the hearing on the discovery dispute. When Appellants only emailed the discovery requests to Mr. Nesmith's counsel by the required time, the trial court ordered that the individuals were not required to respond to the discovery requests.

As we detailed in Clemmons I:
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.

Id. Specifically, Appellants noted that counsel for Ms. Jones, a defendant in the circuit court case and witness in the chancery court case, filed a detailed invoice of charges in support of his attorney's fee request in the related federal court action. The invoice contained the following entry:

11/21/14 MTH At Schell & Davies law firm party in Franklin with 1.50 Trevor. Meet Judges Woodruff and Binkley and others. Meet Virginia Story and discuss case.

         Ms. Story serves as counsel for Mr. Nesmith. Appellants alleged that this entry indicated that counsel for Ms. Jones had an ex parte communication with Judge Binkley concerning the pending matters. According to Appellants, an appearance of bias necessitating recusal was required by the November 21, 2014 ex parte communication coupled with: (1) Judge Woodruff's sua sponte order staying the circuit court case on November 24, 2014; and (2) Judge Binkley's refusal to timely lift the stay on discovery to allow Appellants to adequately prepare for trial, despite his assurances that such an order would be timely entered.

         On April 20, 2016, Judge Binkley's assistant emailed the parties to inform them that the trial judge would deny the motion for disqualification but that he would be unable to issue a written ruling prior to the scheduled trial date of April 25, 2016. The parties therefore proceeded to trial despite the fact that no written order had been entered disposing of the pending motion for disqualification. After the second day of trial, on May 11, 2016, the trial court entered a written order denying the recusal motion. Rather than detailing the reasoning for his decision in the order, the trial court attached to the order his own affidavit. In relevant part, the affidavit contained the following statements on behalf of Judge Binkley:

B. I recall being at a Christmas party at Schell & Davies law firm in Franklin, Tennessee, at the end of the month in November 2014. I barely remember saying "hello" to Mr. Harris, Judge Woodruff, and Mrs. Story, attorney for [Mr. Nesmith], but I would not, certainly, under any circumstances, discuss with any attorney or party to a lawsuit, the facts of a case or even bring up the case itself for any reason whatsoever. I never had an ex parte communication with Mrs. Story or Mr. Harris regarding any case, much less the present case, at the Christmas party mentioned above on or about November 21, 2014.
C. In reviewing the pleadings in the file, my recollection is I have provided to the [Appellants'] attorneys in this case absolutely every opportunity to conduct complete and thorough discovery in order to be prepared for trial in this case.
D. Based upon the pleadings in the file as well as the numerous appearances by counsel for the [Appellants], I am of the distinct impression I have allowed as much time as may be reasonably necessary, under the circumstances of this case, to allow defense counsel to conduct whatever discovery was necessary for the final preparation of this case for trial.
E. In balancing [Appellants'] request to continue this trial once again against [Mr. Nesmith's] adamant desire to move forward with trial and their continuous statements that the [Appellants] were purposely delaying the trial of this case, I decided I would not continue the trial of this case, but I also decided to allow [Appellants] to conduct discovery if needed, and at the same time, to require both parties to expedite responses to [Appellants'] additional discovery requests sensitive to [Mr. Nesmith's] desire to proceed with the trial of this case without further inordinate delays.

         Judge Binkley concluded that an objective person viewing the above facts and the entire record would find that he had acted in a fair and reasonable manner to all parties. Judge Binkley therefore determined that there was neither "a subjective or objective basis that any conduct on my behalf in this case rises to the level of requiring me to recuse myself from presiding over the trial of this case."

          The trial proceeded for two more days but the problems encountered in this case were far from over. During the May 20, 2016 trial date, Judge Binkley ordered that two of Appellants' children, a minor daughter and an eighteen-year old son, Sawyer Clemmons, be removed from the courtroom. A transcript of the episode provides as follows:

MS. STORY: . . . . I just would ask for, you know, I mean I just see no reason to have the grandchildren in here.
THE COURT: How old are they?
MS. STORY: They are high school students and one is a college ...

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