By Walter F. Roche Jr.
A clearly frustrated Davidson circuit court judge has ruled that former Public Guardian Jeanan Stuart must stand trial on charges in a civil suit that she engaged in willful misconduct in her role as the court appointed conservator for a Hendersonville woman.
"This is going on and on and on," Gayden said in a recent hearing. "Let's get this case going."
The ruling came in a longstanding suit filed by Ginger Franklin who was placed in a conservatorship in 2008 without her knowledge following a fall.
Franklin has charged that after her appointment Stuart engaged in "willful and malicious conduct" in her case by failing to act on her request to have the conservatorship ended.
During the same Dec. 12 hearing Gayden also ruled that Metro government could not be held liable for Stuart's actions. Stuart's lawyers had argued that Stuart was a Metro employee and thus was protected from claims under provisions of the Governmental Tort Liability Act.
"She was acting within the scope of her duties as an employee," said William Hubbard, Stuart's lawyer, according to a transcript of the session.
But Michael Hoskins, Franklin's attorney, disagreed.
"It's clear that the legislature never intended to give some special immunity to the public guardian," he said, adding that previously Stuart had claimed immunity as a state employee.
Gayden later agreed with Hoskin's that even if the liability act did apply, the charges of willful and intentional misconduct would not be protected.
Hoskins and Metro attorney Jeff Campbell also noted that Stuart made her claim against Metro long after the statute of limitations had passed.
Gayden also granted Stuart's lawyer's motion to file an appeal of his rulings in the case.
Stuart stepped down as public guardian last year on the same day Probate Judge David "Randy" Kennedy stated that he would no longer appoint her to any cases because of questionable billing practices. Her job has remained vacant ever since.
wfrochejr999@gmail.com
Friday, December 26, 2014
Wednesday, December 10, 2014
Metro Denies Liability in Probate Cases
By Walter F. Roche Jr.
Metro Nashville government says it should not be held liable for losses in two probate court cases in which $688,413.54 was stolen by a now jailed court appointed attorney.
In papers filed this week in Circuit Court, Metro attorneys denied that any employees had been negligent in monitoring the two cases. They also invoked a state statute, the Tenneessee Governmental Liability law, which they contend shields the government from such claims.
The nearly identical immunity claims came in two separate cases in which Davidson Probate officials are being blamed for the losses.
The suits charge that due to the lack of monitoring by the court, John Clemmons was able to steal $515,907.19 from the estate of William C. Link and $172,506.35 from the conservatorship of Donald E. Griggs.
The suits charge that court officials were negligent in not demanding that Clemmons' file required annual accountings in the two cases. Had they done so, the suits contend, Clemmons' actions would have been detected years earlier.
The suits were filed by Paul Gontarek, the attorney appointed by Probate Judge David "Randy" Kennedy to replace Clemmons.
Clemmons already is serving a prison term of up to 18-years after he pleaded guilty to stealing $771,009 in four separate cases, including Griggs and Link. He also entered guilty pleas in a similar case in Rutherford County.
"Metro government denies that any of its employees were negligent," Metro lawyers wrote in a five-page answer filed this week.
And, the answer continues, Metro's liability should be reduced "by the amount of fault attributable to other parties."
It cites Clemmons and other attornies involved in the cases as liable parties.
wfrochejr999@gmail.com
Metro Nashville government says it should not be held liable for losses in two probate court cases in which $688,413.54 was stolen by a now jailed court appointed attorney.
In papers filed this week in Circuit Court, Metro attorneys denied that any employees had been negligent in monitoring the two cases. They also invoked a state statute, the Tenneessee Governmental Liability law, which they contend shields the government from such claims.
The nearly identical immunity claims came in two separate cases in which Davidson Probate officials are being blamed for the losses.
The suits charge that due to the lack of monitoring by the court, John Clemmons was able to steal $515,907.19 from the estate of William C. Link and $172,506.35 from the conservatorship of Donald E. Griggs.
The suits charge that court officials were negligent in not demanding that Clemmons' file required annual accountings in the two cases. Had they done so, the suits contend, Clemmons' actions would have been detected years earlier.
The suits were filed by Paul Gontarek, the attorney appointed by Probate Judge David "Randy" Kennedy to replace Clemmons.
Clemmons already is serving a prison term of up to 18-years after he pleaded guilty to stealing $771,009 in four separate cases, including Griggs and Link. He also entered guilty pleas in a similar case in Rutherford County.
"Metro government denies that any of its employees were negligent," Metro lawyers wrote in a five-page answer filed this week.
And, the answer continues, Metro's liability should be reduced "by the amount of fault attributable to other parties."
It cites Clemmons and other attornies involved in the cases as liable parties.
wfrochejr999@gmail.com
Saturday, December 6, 2014
Former Public Guardian, Metro in Court Faceoff
By Walter F. Roche Jr
Davidson's former Public Guardian, Jeanan Stuart, and lawyers for Metro are battling each other in a suit brought by a woman who was placed in a conservatorship without her knowledge while recovering from serious head injuries.
In the suit now pending in Davidson Circuit Court Ginger Franklin of Hendersonville has charged that Stuart violated her fiduciary duties by placing her in a group home that didn't suit her needs and then ignoring her pleas to end the conservatorship.
Stuart's lawyers contend their client was acting as a Metro employee and should be protected from any liability under a state law, the Tennessee Governmental Tort Liability Act, limiting the claims that can be filed against a government agency or individual employees.
"She was elected by Metro Council," a recent filing states, adding that she also was issued a Metro employee ID badge and Metro provided her with bond coverage.
Stuart resigned from her post last year simultaneous with an announcement by Probate Judge David "Randy" Kennedy that he would no longer appoint her in any conservatorship cases.
In the Franklin case, Stuart's lawyers filed papers naming Metro government as a third party defendant. Metro countered charging that the statute of limitations had run out by the time the claim was made and that Stuart's alleged actions fell outside of those that can be protected under governmental immunity.
"Contrary to Metro's assertions the complaint alleges breaches of fiduciary duty for which Metro would be liable," a recent filing by Robyn E. Smith, Stuart's lawyer, states, adding that Stuart should be immune.
"Metro government also gratuitously asserts that the complaint alleges only intentional torts for which it would not be liable," the filing adds.
In its latest filing Metro lawyers state that while they still want the case dismissed, if it does continue that "discovery be limited to ascertaining the employment status of Ms. Stuart."
Citing a prior ruling in the case by Judge Hamilton Gayden, Metro lawyer Jeff Campbell stated in a filing that the court's original decision to deny proceeding under Governmental Tort Liability Act was "correct."
In another filing seeking dismissal of the claims against Metro, government lawyers argued that "absent an allegation of direct negligence on the part of a supervisor of Ms. Stuart, the government maintains its immunity for intentional torts."
Franklin's lawyer, Michael G. Hoskins, in response to Stuart's move to invoke the governmental immunity statute wrote, "The Metro government did not have any authority to direct or supervise defendants actions as conservator."
wfrochejr999@gmail.com
Davidson's former Public Guardian, Jeanan Stuart, and lawyers for Metro are battling each other in a suit brought by a woman who was placed in a conservatorship without her knowledge while recovering from serious head injuries.
In the suit now pending in Davidson Circuit Court Ginger Franklin of Hendersonville has charged that Stuart violated her fiduciary duties by placing her in a group home that didn't suit her needs and then ignoring her pleas to end the conservatorship.
Stuart's lawyers contend their client was acting as a Metro employee and should be protected from any liability under a state law, the Tennessee Governmental Tort Liability Act, limiting the claims that can be filed against a government agency or individual employees.
"She was elected by Metro Council," a recent filing states, adding that she also was issued a Metro employee ID badge and Metro provided her with bond coverage.
Stuart resigned from her post last year simultaneous with an announcement by Probate Judge David "Randy" Kennedy that he would no longer appoint her in any conservatorship cases.
In the Franklin case, Stuart's lawyers filed papers naming Metro government as a third party defendant. Metro countered charging that the statute of limitations had run out by the time the claim was made and that Stuart's alleged actions fell outside of those that can be protected under governmental immunity.
"Contrary to Metro's assertions the complaint alleges breaches of fiduciary duty for which Metro would be liable," a recent filing by Robyn E. Smith, Stuart's lawyer, states, adding that Stuart should be immune.
"Metro government also gratuitously asserts that the complaint alleges only intentional torts for which it would not be liable," the filing adds.
In its latest filing Metro lawyers state that while they still want the case dismissed, if it does continue that "discovery be limited to ascertaining the employment status of Ms. Stuart."
Citing a prior ruling in the case by Judge Hamilton Gayden, Metro lawyer Jeff Campbell stated in a filing that the court's original decision to deny proceeding under Governmental Tort Liability Act was "correct."
In another filing seeking dismissal of the claims against Metro, government lawyers argued that "absent an allegation of direct negligence on the part of a supervisor of Ms. Stuart, the government maintains its immunity for intentional torts."
Franklin's lawyer, Michael G. Hoskins, in response to Stuart's move to invoke the governmental immunity statute wrote, "The Metro government did not have any authority to direct or supervise defendants actions as conservator."
wfrochejr999@gmail.com
Wednesday, October 29, 2014
Metro Could Be on Hook for Money Stolen from Estate
By Walter F. Roche Jr.
The attorney for an estate bilked out of $771,009 is asking a judge to rule that Metro government should be held liable for those losses because the probate court clerk's office failed to perform its statutorily mandated duty to monitor the case.
The argument filed this week in a 17-page document filed in circuit court concludes that the Probate Clerk's office headed by Robert Bradshaw negligently failed to require the now jailed administrator of the estate to file annual reports for a full decade.
The suit against Metro government follows the guilty plea by attorney John E. Clemmons to charges that he stole over $1 million from estates and conservatorships he had been assigned to manage. The pleas included the estate of William C. Link, the subject of this week's filings.
Metro attorneys already have filed motions to dismiss the case citing governmental immunity and quasi-judicial immunity.
Patrick B. Mason, who was hired to represent the estate in the civil suit, argued that neither governmental immunity or quasi-judicial immunity should apply in the case because the probate clerk's duties are set out by specific statutes and the duties were put in place to protect a specific individual and not the general public.
Clemmons, who is serving a 16 year jail sentence imposed after his guilty pleas, was appointed administrator of the Link estate in 2003. While he filed an annual accounting in 2004, he never filed another before his removal from the case in 2013.
In a nearly identical brief filed this week, Mason argued that Metro also should also be held liable in another case handled by Clemmons, the conservatorship of Donald E. Griggs.
In his briefs Mason charged that Bradshaw's office "negligently failed to ensure that proper accountings were filed."
In the Griggs case, according to the brief, three years had passed without a proper accounting at the time Clemmons was removed from his role as conservator. Grigg's lost $172,506 while Clemmons served as his conservator, according to court records.
Mason noted that the clerk's office knew the Link and Griggs estates had substantial assets and they also knew "the substantial and unjustifiable risk of their misconduct."
He also cited Davidson County rules of procedure and several prior court cases to bolster the argument.
In fact, the brief argues, the clerk's office owed a special duty of care to the Link estate and its beneficiaries.
"For a period of 10 years the probate clerk's office failed to follow their duty to ensure proper accounting, failed to monitor estate administration, failed to cite Mr. Clemmons for his failure and failed to obtain a contempt order," the filing states.
The inaction, Mason concluded, amount to "reckless conduct."
The cases were originally assigned to Judge Thomas Brothers but he recused himself from the case and it has been reassigned to Senior Judge Ben H. Cantrell.
Clemmons was removed from his role in four cases in Rutherford and Davidson counties shortly after his license to practice law was suspended in April 2013. He was later disbarred.
wfrochejr999@gmail.com
The attorney for an estate bilked out of $771,009 is asking a judge to rule that Metro government should be held liable for those losses because the probate court clerk's office failed to perform its statutorily mandated duty to monitor the case.
The argument filed this week in a 17-page document filed in circuit court concludes that the Probate Clerk's office headed by Robert Bradshaw negligently failed to require the now jailed administrator of the estate to file annual reports for a full decade.
The suit against Metro government follows the guilty plea by attorney John E. Clemmons to charges that he stole over $1 million from estates and conservatorships he had been assigned to manage. The pleas included the estate of William C. Link, the subject of this week's filings.
Metro attorneys already have filed motions to dismiss the case citing governmental immunity and quasi-judicial immunity.
Patrick B. Mason, who was hired to represent the estate in the civil suit, argued that neither governmental immunity or quasi-judicial immunity should apply in the case because the probate clerk's duties are set out by specific statutes and the duties were put in place to protect a specific individual and not the general public.
Clemmons, who is serving a 16 year jail sentence imposed after his guilty pleas, was appointed administrator of the Link estate in 2003. While he filed an annual accounting in 2004, he never filed another before his removal from the case in 2013.
In a nearly identical brief filed this week, Mason argued that Metro also should also be held liable in another case handled by Clemmons, the conservatorship of Donald E. Griggs.
In his briefs Mason charged that Bradshaw's office "negligently failed to ensure that proper accountings were filed."
In the Griggs case, according to the brief, three years had passed without a proper accounting at the time Clemmons was removed from his role as conservator. Grigg's lost $172,506 while Clemmons served as his conservator, according to court records.
Mason noted that the clerk's office knew the Link and Griggs estates had substantial assets and they also knew "the substantial and unjustifiable risk of their misconduct."
He also cited Davidson County rules of procedure and several prior court cases to bolster the argument.
In fact, the brief argues, the clerk's office owed a special duty of care to the Link estate and its beneficiaries.
"For a period of 10 years the probate clerk's office failed to follow their duty to ensure proper accounting, failed to monitor estate administration, failed to cite Mr. Clemmons for his failure and failed to obtain a contempt order," the filing states.
The inaction, Mason concluded, amount to "reckless conduct."
The cases were originally assigned to Judge Thomas Brothers but he recused himself from the case and it has been reassigned to Senior Judge Ben H. Cantrell.
Clemmons was removed from his role in four cases in Rutherford and Davidson counties shortly after his license to practice law was suspended in April 2013. He was later disbarred.
wfrochejr999@gmail.com
Friday, September 19, 2014
Metro Pulled in to Another Conservatorship Case
By Walter F. Roche Jr.
Metro Nashville government has been named as a defendant in another suit stemming from allegations against conservators in Davidson Probate Court.
Court documents filed this week show that attorneys for former Davidson Public Guardian Jeanan Stuart have named Metro as a defendant in a pending suit filed by Ginger Franklin of Hendersonville.
The claim against Metro follows a decision by Circuit Court Judge Hamilton Gayden, who found that Stuart could be found liable for failing to act in Franklin's best interests while serving as her conservator.
Gayden virtually invited the move when he agreed to reconsider his decision if Metro became a party to the suit within 30 days.
In an unrelated case Metro is being sued by a former ward of John Clemmons, a Nashville attorney who is serving a lengthy prison term after pleading guilty to the theft of more than $1 million from wards he was serving as a conservator. Three of those four cases were in Davidson court.
Stuart, who was serving a second term as Davidson's Public Guardian, stepped down last year on the same day Probate Judge David "Randy" Kennedy announced he would no longer appoint her to cases. Kennedy said he took the action because of questions raised about Stuart's billing practices.
Stuart's lawyers have argued that because she was acting in her official capacity she is immune from liability claims and that any claims must be made against Metro.
Franklin's lawyers have opposed that claim, noting that she originally contended she was exempt because she was acting as an agent of the court. Hamilton rejected that argument in a prior ruling and Franklin's attorney argued that Stuart was not allowed to raise a different argument at this stage of the case.
Stuart's two appointments to the public guardian's post were approved by Metro Council on the recommendation of Kennedy. Her post has remained vacant since her resignation.
Franklin's suit charges that Stuart wrongly placed her in a group home where she was put to work without pay serving other residents.
Metro Nashville government has been named as a defendant in another suit stemming from allegations against conservators in Davidson Probate Court.
Court documents filed this week show that attorneys for former Davidson Public Guardian Jeanan Stuart have named Metro as a defendant in a pending suit filed by Ginger Franklin of Hendersonville.
The claim against Metro follows a decision by Circuit Court Judge Hamilton Gayden, who found that Stuart could be found liable for failing to act in Franklin's best interests while serving as her conservator.
Gayden virtually invited the move when he agreed to reconsider his decision if Metro became a party to the suit within 30 days.
In an unrelated case Metro is being sued by a former ward of John Clemmons, a Nashville attorney who is serving a lengthy prison term after pleading guilty to the theft of more than $1 million from wards he was serving as a conservator. Three of those four cases were in Davidson court.
Stuart, who was serving a second term as Davidson's Public Guardian, stepped down last year on the same day Probate Judge David "Randy" Kennedy announced he would no longer appoint her to cases. Kennedy said he took the action because of questions raised about Stuart's billing practices.
Stuart's lawyers have argued that because she was acting in her official capacity she is immune from liability claims and that any claims must be made against Metro.
Franklin's lawyers have opposed that claim, noting that she originally contended she was exempt because she was acting as an agent of the court. Hamilton rejected that argument in a prior ruling and Franklin's attorney argued that Stuart was not allowed to raise a different argument at this stage of the case.
Stuart's two appointments to the public guardian's post were approved by Metro Council on the recommendation of Kennedy. Her post has remained vacant since her resignation.
Franklin's suit charges that Stuart wrongly placed her in a group home where she was put to work without pay serving other residents.
Tuesday, September 9, 2014
Will Filed for Nashville Civil Rights Attorney
By Walter F. Roche Jr.
Just days after his death a will has been filed in Davidson Probate Court for George E. Barrett, the attorney and longtime civil rights activist.
The 19-page will with two codicils was filed Monday. Barrett died Aug. 26 at the age of 86. The will was filed by Nashville attorney James B.Lewis.
The will creates a series of trusts for the benefit of Barrett's three daughters; Ann L. Thomason, Mary Brewer and Kathryn Cain. Provisions also are included for his grandchildren.
Barrett states in the will that the trusts were being created "to limit adverse estate tax consequences."
In addition to establishing the trusts, the will allocates $10,000 each to the three daughters and seven nieces and nephews.
It also allocates $10,000 to his sister, Sister Mary George, a Catholic nun living in Nashville.
The documents filed Monday do not provide any details of the size of Barrett's estate. The one specific asset mentioned is a residence at 642 Timber Lane.
The will is dated Dec. 29, 2004. The two codicils were dated May 15, 2006 and March 13, 2013.
One of the codicils names Barrett's son-in-law, Mark Brewer, as executor. The other codicil states that any outstanding loans by Barrett to his daughters are to be forgiven at the time of his death.
Just days after his death a will has been filed in Davidson Probate Court for George E. Barrett, the attorney and longtime civil rights activist.
The 19-page will with two codicils was filed Monday. Barrett died Aug. 26 at the age of 86. The will was filed by Nashville attorney James B.Lewis.
The will creates a series of trusts for the benefit of Barrett's three daughters; Ann L. Thomason, Mary Brewer and Kathryn Cain. Provisions also are included for his grandchildren.
Barrett states in the will that the trusts were being created "to limit adverse estate tax consequences."
In addition to establishing the trusts, the will allocates $10,000 each to the three daughters and seven nieces and nephews.
It also allocates $10,000 to his sister, Sister Mary George, a Catholic nun living in Nashville.
The documents filed Monday do not provide any details of the size of Barrett's estate. The one specific asset mentioned is a residence at 642 Timber Lane.
The will is dated Dec. 29, 2004. The two codicils were dated May 15, 2006 and March 13, 2013.
One of the codicils names Barrett's son-in-law, Mark Brewer, as executor. The other codicil states that any outstanding loans by Barrett to his daughters are to be forgiven at the time of his death.
Saturday, August 30, 2014
Judge denies motion by former Davidson public guardian
A circuit court judge has turned down a motion filed by Davidson's former public guardian in a suit filed by a Hendersonville woman who has charged she was wrongly placed in a conservatorship.
In a two-page order issued Friday, Judge Hamilton V. Gayden denied the motion filed by attorneys for former Public Guardian Jeanan Stuart.
Stuart's lawyers had argued that Ginger Franklin's claims should be decided under a law limiting the claims that can be filed against public agencies because Stuart was acting as an agent of Davidson County.
But Gayden concluded that he could not grant the motion because Metro government was not even a party to the suit.
He wrote that he would reconsider the matter if Metro becomes a party to the suit within the next 30 days.
Gayden also noted that Franklin's suit charges that Stuart's conduct was "knowing and willful" which, if true, would negate the limitations.
Franklin's suit charges that Stuart failed in her fiduciary duties to look out for her best interests during the conservatorship, which was ultimately dissolved.
Stuart was removed from the public guardian's job by Probate Judge David "Randy" Kennedy after questions were raised about her billing practices. She submitted a resignation the same day.
The position remains unfilled, but a proposal by Mayor Karl Dean would created a new Public Guardian's office funded by Metro government.
Gayden's ruling comes on claims by Franklin that she was placed in a group home by Stuart and put to work caring for other residents.
In an earlier ruling Gayden dismissed other claims Franklin made relating to the loss of her condo and car due to actions or inactions by Stuart during the conservatorship. The condo was auctioned off and the car was abandoned.
In a two-page order issued Friday, Judge Hamilton V. Gayden denied the motion filed by attorneys for former Public Guardian Jeanan Stuart.
Stuart's lawyers had argued that Ginger Franklin's claims should be decided under a law limiting the claims that can be filed against public agencies because Stuart was acting as an agent of Davidson County.
But Gayden concluded that he could not grant the motion because Metro government was not even a party to the suit.
He wrote that he would reconsider the matter if Metro becomes a party to the suit within the next 30 days.
Gayden also noted that Franklin's suit charges that Stuart's conduct was "knowing and willful" which, if true, would negate the limitations.
Franklin's suit charges that Stuart failed in her fiduciary duties to look out for her best interests during the conservatorship, which was ultimately dissolved.
Stuart was removed from the public guardian's job by Probate Judge David "Randy" Kennedy after questions were raised about her billing practices. She submitted a resignation the same day.
The position remains unfilled, but a proposal by Mayor Karl Dean would created a new Public Guardian's office funded by Metro government.
Gayden's ruling comes on claims by Franklin that she was placed in a group home by Stuart and put to work caring for other residents.
In an earlier ruling Gayden dismissed other claims Franklin made relating to the loss of her condo and car due to actions or inactions by Stuart during the conservatorship. The condo was auctioned off and the car was abandoned.
Subscribe to:
Posts (Atom)