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.
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