SAMUEL C. CLEMMONS, ET AL.
Remanded by the Supreme Court on December 19, 2016
from the Chancery Court for Williamson County No. 43480
Michael Binkley, Judge
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
Sup. Ct. 10B Interlocutory Appeal as Right; Judgment of the
Chancery Court Affirmed
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
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.
STEVEN STAFFORD, JUDGE
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.
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
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.
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." 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
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
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.
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
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
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."
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