Nesmith v. Clemmons
| Decision Date | 17 January 2023 |
| Docket Number | M2021-01030-COA-R3-CV |
| Parties | JOHNNY NESMITH v. SAMUEL C. CLEMMONS ET AL. |
| Court | Tennessee Court of Appeals |
JOHNNY NESMITH
v.
SAMUEL C. CLEMMONS ET AL.
No. M2021-01030-COA-R3-CV
Court of Appeals of Tennessee, Nashville
January 17, 2023
Session October 18, 2022
Appeal from the Chancery Court for Williamson County No. 14CV-43480 Russell Parkes, Judge
Defendants appeal from the denial of their effort to invalidate a 2017 judgment on the basis that the trial judge harbored animosity against them at the time the judgment was rendered. Because these allegations were adjudicated in an earlier Rule 60.02 action, we conclude that res judicata bars the instant effort for relief from the judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
Mark Andrew Hammervoid, [1] Elmhurst, Illinois, for the appellant, Shannon N. Clemmons, and Samuel C. Clemmons.
Virginia L. Story, Franklin, Tennessee and Kathryn L. Yarbrough, Spring Hill, Tennessee, for the appellee, Johnny Nesmith.
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B. GOLDIN and KENNY ARMSTRONG, JJ., joined.
OPINION
J. STEVEN STAFFORD, JUDGE
I. Factual and Procedural Background
The procedural history of this case is fairly torturous to recount because it involves proceedings in three separate actions that were occurring simultaneously. The saga of this particular case ("the instant case") began in 2014 when Plaintiff/Appellee Johnny Nesmith
filed a complaint for breach of contract against his daughter Defendant/Appellant Shannon Clemmons ("Mrs. Clemmons") and her husband Samuel C. Clemmons ("Mr. Clemmons," and together with Mrs. Clemmons, "Appellants"). The instant case was filed in Williamson County Chancery Court ("the trial court") and assigned to Judge Michael W. Binkley. Appellants, however, attempted unsuccessfully to remove Judge Binkley on a number of occasions.[2]
Eventually, the instant case was heard via bench trial in 2016 and 2017. The basis of Mr. Nesmith's claim was that Appellants breached a membership transfer agreement and promissory note. Judge Binkley issued an order in August 2017 awarding Mr. Nesmith substantial damages. On November 27, 2017, Judge Binkley also awarded Mr. Nesmith attorney's fees under the promissory note. Appellants appealed the judgment to this Court, raising issues related to denial of a continuance, discovery issues, the record on appeal, and the trial court's interpretation of the membership transfer agreement. Nesmith v. Clemmons, No. M2017-02521-COA-R3-CV, 2019 WL 5847286, at *10 (Tenn. Ct. App. Nov. 7, 2019) ("Clemmons F). Appellants did not however, "contend that the court's extensive factual findings of fact [were] unsupported by the evidence." Id.
While Clemmons I was on appeal, proceedings were taking place in two other Williamson County Circuit Court cases presided over by Judge Binkley that would have ramifications on the instant case: (1) a case in which both Mr. Nesmith and Appellants were among the parties, Elite Emergency Services v. Nesmith[3] (2) and an unrelated case involving different parties and issues, Chase v. Stewart[4] First, in July 2018, as part of Chase v. Stewart, Judge Binkley entered what Appellants describe as a "scathing" order awarding considerable sanctions against Attorney Brian Manookian, who was representing several of the defendants.[5] In this order, Judge Binkley purportedly "openly impugn[ed] [Attorney] Manookian for his conduct going back to September 2016." The sanctions awarded in in the July 2018 order amounted $622,496.12.
In the meantime, at a hearing on August 30, 2018 in Elite Emergency Services v. Nesmith, Judge Binkley openly discussed the Chase v. Stewart sanctions and Attorney Manookian. Specifically, Judge Binkley stated that he "did not like what Mr. Manookian did at all" in conspiring with "another person" to prepare what the judge described as a "fake and false" report of ethical violations against Judge Binkley. The judge also twice advised that "my day will come" and warned that "if s just about here." There is no dispute that the other person to whom Judge Binkley was referring to was Mr. Clemmons.[6]
At a hearing a month later in Elite Emergency Services v. Nesmith, counsel of record for Appellants at that time, Connie Reguli,[7] informed Judge Binkley that Attorney Manookian had filed a civil lawsuit against the judge for his comments at the August 2018 hearing. Judge Binkley then denied Appellants' request for a stay of the proceedings in Elite Emergency Services v. Nesmith or for an interlocutory appeal.
The effects of Judge Binkley's ill-advised comments at the August 2018 Elite Emergency Services v. Nesmith hearing rippled across both the instant case and Chase v. Stewart. First, on September 21, 2018, Attorney Manookian filed a motion to recuse Judge Binkley in Chase v. Stewart[8] Judge Binkley denied the motion, reasoning that his comments were "irrelevant to the issues in the present case." Chase v. Stewart, No. M2018-01991-COA-R3-CV, 2021 WL 402565, at *3 (Tenn. Ct. App. Feb. 4, 2021), reh'g denied (Mar. 16, 2021), perm. app. denied, not for citation (Tenn. Aug. 6, 2021).[9] Judge Binkley then awarded over $100,000.00 in attorney's fees against Attorney Manookian related to the sanctions; the orders awarding sanctions and attorney's fees were designated
as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Attorney Manookian and his law firm separately appealed the recusal issue and the sanctions/attomey's fees issue. This Court consolidated the two separate appeals. Id.
Meanwhile, Clemmons I was still pending before this Court on appeal. As such, rather than file a motion to recuse Judge Binkley related to the August 2018 comments and aftermath, Appellants filed a motion with this Court in April 2019 for consideration of post-judgment facts and "for sua sponte disqualification of Judge Binkley or in the alternative for remand for Rule 60 relief." Therein, Appellants asked that Judge Binkley be removed nunc pro tunc to February 2017 or in the alternative that the judgment he entered be set aside under Rule 60.02 of the Tennessee Rules of Civil Procedure. In support of this motion, Appellants cited to twenty-six exhibits,[10] including complaints and orders in the various cases, news articles, continuing education seminar transcripts, and various other documents spanning from 2014 to 2019.
The allegations contained in Appellants' Court of Appeals recusal motion were numerous. Essentially, Appellants asserted that Judge Binkley held a bias against Mr. Clemmons as early as February 2017, as evidenced by his comments at the August 2018 hearings, as well as later comments and orders that generally accused Mr. Clemmons and Attorney Manookian of working in concert to undermine Judge Binkley.[11] Appellants further alleged that Attorney Manookian had entered a notice of appearance in the instant case in July 2017 and "appeared on the Court docket as counsel for the Clemmons by September 2017."[12] Appellant also alleged that Judge Binkley's bias continued post-2018, as evidenced by a January 2019 letter Mr. Clemmons received in which an attorney threatened litigation against Mr. Clemmons over the social media page calling for an investigation of Judge Binkley.[13] According to this letter, Attorney Manookian attributed this page to Mr. Clemmons.
Based on these facts, Appellants argued in their Court of Appeals motion that Judge Binkley's history of personal animus against Appellants would cause a reasonable person to question Judge Binkley's impartiality. Moreover, Appellants alleged that they did not have the full story as to Judge Binkley's purported animus until the January 29, 2019 letter threating a defamation lawsuit against Mr. Clemmons. Appellants therefore asked that Judge Binkley be removed nunc pro tunc to February 2017.
The Court of Appeals, however, denied Appellants' motion by order of November 5, 2019.[14] Two days later, we affirmed the judgment rendered by the trial court in full. See Clemmons I, 2019 WL 5847286, at *10-11 (also awarding Mr. Nesmith additional attorney's fees). Appellants filed an application for permission to appeal the affirmance to the Tennessee Supreme Court, which was denied by order of March 26,2020.[15] Clemmons I was remanded back to the trial court, and Mr. Nesmith attempted to collect on his judgment, leading to additional trial court proceedings.
With additional proceedings came additional attempts to remove Judge Binkley. Before the Tennessee Supreme Court ruled on the pending application for permission to appeal, on January 2, 2020, Appellants filed a motion seeking to join the instant case with Elite Emergency Services v. Nesmith for purposes of consideration of a recusal motion against Judge Binkley filed on October 18, 2018. According to a separate motion to recuse filed in the instant case on the same day, however, Judge Binkley had already recused from Elite Emergency Services v. Nesmith years prior, by order of November 13, 2018.[16] The recusal motion also relied on the January 2019 letter threatening a lawsuit against Mr. Clemmons.
On February 10, 2020, Judge Binkley entered an order in the instant case adjudicating both pending motions related to recusal. First, Judge Binkley recounted some of the procedural history of the case, including his belief that Appellants worked in concert with Attorney Manookian to remove Judge Binkley from the instant case. Judge Binkley also noted that Attorney Manookian was currently suspended from the practice of law due to the risk of harm that he posed to the public. Judge Binkley also reiterated his comments that Appellants and Attorney Manookian attempted to "game" the judicial system. The Judge finally noted that despite all of that, the underlying judgment in Clemmons I was affirmed in all respects and was "for all practical purposes, final." Based on these facts, Judge Binkley reaffirmed...
To continue reading
Request your trial