DIALYSIS CLINIC, INC.
KEVIN MEDLEY, ET AL.
Assigned on Briefs February 10, 2017.
from the Circuit Court for Davidson County No. 14C4843 Joseph
P. Binkley, Jr., Judge
appeal the trial court's denial of their motion to recuse
on the ground that the trial court conducted an impermissible
ex parte communication with counsel for the opposing party.
The dispute in this case stems from Appellants' pursuit
of several documents that the opposing party claimed were
privileged. In the course of hearing proof on the claimed
privilege, the trial court announced its intention to conduct
an ex parte hearing concerning the documents with only the
opposing party present. Appellants did not object to the
hearing. After the hearing was conducted, however, Appellants
moved to recuse the trial judge on the basis that he had
engaged in prohibited ex parte communications. The trial
court promptly denied the recusal motion. Discerning no
error, we affirm.
Sup. Ct. 10B Interlocutory Appeal as Right; Judgment of the
Vincent Williams, Nashville, Tennessee, for the appellants,
Kevin Medley, Kevin Medley, LLC, Canvas Lounge LLC, and 3
Entertainment Group, LLC.
C. Sales and Frankie N. Spero, Nashville, Tennessee, for the
appellee, Dialysis Clinic, Inc. Samuel Lanier Felker,
Nashville, Tennessee, for the appellee, OutCentral, Inc.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which D. Michael Swiney, C.J., and Andy D. Bennett,
STEVEN STAFFORD, JUDGE.
facts of this case are not in dispute. On November 25, 2014,
Plaintiff/Appellee Dialysis Clinic, Inc. ("Dialysis
Clinic") filed a complaint in general sessions court
against Defendants/Appellants Kevin Medley, individually and
d/b/a Kevin Medley, LLC; Canvas Lounge LLC ("Canvas
Lounge"); 3 Entertainment Group LLC d/b/a WKND
(collectively, "Appellants"); and
Defendant/Appellee OutCentral, Inc. ("OutCentral, "
and together with Appellants, "Defendants"). The
complaint sought a declaratory judgment for unlawful detainer
against Defendants. At some point, the case was removed to
Davidson County Circuit Court and Mr. Medley filed a
cross-complaint against OutCentral, alleging that it and
Dialysis Clinic entered into an agreement by which OutCentral
paid Dialysis Clinic to the exclusion of Mr. Medley.
parties thereafter engaged in prolonged discovery, which was
scheduled to be largely completed in July 2015. In the summer
of 2016, however, Defendants filed a motion to extend the
time for completing discovery and to compel discovery of
certain documents withheld by XMI Commercial Real Estate,
Inc. ("XMI"), a brokerage firm that assisted
Dialysis Clinic with the purchase of the subject property.
XMI refused to produce the requested documents on the grounds
of attorney-client privilege and work product. On September
26, 2016, the trial court entered an order indicating that
the documents had been submitted to the court for in
camera review and that a ruling of their privilege would
be forthcoming. Having reviewed the documents, the trial
court later determined that an evidentiary hearing on the
issue was necessary. The hearing began on November 2, 2016,
and continued on November 16, 2016. Counsel for Appellants
was present during both hearing dates. Near the conclusion of
the second day of the hearing, the following exchange
THE COURT: Well, a lot of this is really for my benefit. I
mean, that's why we're doing most of this. Now, as a
side benefit, [Counsel for Appellants] is cross-examining
these people. It's a side benefit to him to that extent.
But, I mean, I really just want to know the relationship of
these parties. That's why we're doing this exercise.
* * *
THE COURT: Well, but it's my responsibility to determine
. . . which documents are subject to the privileges. Really,
I'm the one that called this meeting. It's for my
purposes, really, so I can make intelligent decisions about
[Counsel for Dialysis Clinic]: I understand. I understand.
THE COURT: So it's really my request. So as far as
I'm concerned, I don't need anything else. I think I
understand. There are a lot of people. I mean, [Dialysis
Clinic] certainly understands the relationship with these
parties. [Counsel for Appellants] probably understands as
much -- maybe not quite as much about the relationship of the
parties as [Dialysis Clinic]'s counsel, but I didn't
have any idea and now I do. Now, I understand.
So it is really for my purposes, so I can, again, make an
intelligent decision about these documents and whether they
are subject to the privileges that are available. And I think
I understand now. I don't think I need anything else.
* * *
THE COURT: . . . . Now because I have no law clerk helping --
let me back up. Because I have law clerk help, period,
I'm able to set a lot of cases and a lot of motions, you
know, complicated motions, complicated matters back to back
to back because I have help to prepare. And we disposed of a
lot of litigation in this court. And I really think
that's my job is to help you guys get your cases moving
toward a conclusion. And I can do that very effectively and
efficiently with my law clerk help, but I don't have law
clerk help for this. So it takes me a little longer.
I'm like my brethren in the rural counties that don't
have a law clerk; they do their own work. And you know, some
of their litigation is maybe not as complicated as what we
have here; some of it ...