Judge Rules Clerk Can Be Liable In Conservatorship Case

By Walter F. Roche Jr.

A senior Davidson Circuit Court Judge has ruled that the county probate court clerk can be held liable for losses suffered by a conserved person whose assets were looted by a now disbarred attorney who had been appointed to oversee the victim's finances.
In a four-page decision issued this week Senior Judge Ben H. Cantrell denied motions for dismissal filed by Metro government and concluded that the case against the probate clerk can go forward.
Cantrell also concluded, however, that the government agency's liability will be limited to the amounts stolen by the now jailed conservator, John E. Clemmons, after March of 2012.
The case is one of two currently pending in the court system in the aftermath of Clemmons' guilty pleas on charges he stole over $1 million from four persons whose assets he had been assigned to protect. The 69-year-old disbarred Nashville, Tenn. attorney is serving an 18 year prison sentence.
Cantrell recently ruled in the other pending Clemmons case that Metro was not liable for assets stolen from the late William C. Link because the suit was filed after the statute of limitations had expired. His decision in that case is being appealed. Clemmons had served as both a conservator and estate administrator for Link and his disabled daughter.
In the case decided this week, Clemmons' successor conservator, Paul Gontarek, had argued that if the probate clerk had performed its duties, Clemmons would have been required to file annual reports with the court that would have exposed the thefts.
Metro lawyers, however, argued that a judgment already had been issued against Clemmons for the full amount of Griggs' losses and, therefore, no more could be recovered. According to court records, Clemmons admitted to stealing $157,050 from Griggs' assets.
Cantrell, however, disagreed.
"The undisputed facts do not support the defendant's (Metro's) argument," Cantrell wrote, adding that there had been no final judgment in the case against Clemmons and it was "not clear just what the court had awarded."
Virtually all known assets of the jailed lawyer have been depleted, records show.
As for the date from which Metro could be held liable, Cantrell set that date at March of 2012 rather than the March 2013 date argued by Metro lawyers. The 2012 date was when the first missed annual report was due.
"Any losses that occurred prior to that date cannot be attributed to the fault of the clerk's office," Cantrell wrote. "Metro is entitled to limit its exposure to any losses arising after March 2012."
Cantrell also concluded that claims against Metro in the case would not be limited to a single capped claim under the state law limiting governmental liability, the Tennessee Governmental Tort Liability Act.
The plaintiff, he wrote, will be entitled to "recover as many caps under the TGTLA as the proof shows he is entitled."
Contact: wfrochejr999@gmail.com

Metro Ruling in Estate Case Being Appealed

By Walter F. Roche Jr.

A notice of appeal has been filed in a suit seeking to force Metro government to repay the estate of a man whose assets were depleted by more than $500,000 through the admitted theft of a court appointed attorney.
The notice of appeal by Paul Gontarek was filed Friday in Davidson Circuit Court.
The appeal will challenge a ruling by Senior Judge Ben H. Cantrell who threw out the suit concluding that it was filed after the one year statute of limitations had expired. The suit sought to recover $515,907.19 from Metro government.
The suit is one of two stemming from actions by now jailed attorney John E. Clemmons, the 69-year-old disbarred Nashville lawyer now serving an 18 year prison sentence after admitting stealing over $1 million from estates and conservatorships he had been assigned to oversee.
In the Sept. 19 decision Cantrell concluded that the suit was filed well beyond the statute of limitations.
Gontarek and Paul Mason had argued that the one-year limit only applied to wrongful death suits filed against government agencies.
Cantrell, however, citing a state Supreme Court ruling, concluded that the limit was much broader and applied to the claims in the suit filed in behalf of the estate of William Link.
The suit had charged that the thefts from the estate would never have occurred if the Davidson Probate Court staff had done their jobs and enforced a requirement that Clemmons file an annual report detailing all transactions involving the estate assets. Clemmons was appointed the estate administrator in 2003 and filed a single accounting in 2004.
A second parallel case is still pending before Cantrell and it involves the conservatorship of Donald Griggs, which Clemmons also was appointed to oversee.
Clemmons admitted to stealing $157,050 from Griggs' assets.
Gontarek also sought to recover some of the stolen money from the insurance company that provided malpractice coverage for Clemmons. That claim, however, was short circuited by a recent federal court ruling.
Contact: wfrochejr999@gmail.com

Judge Bars Claims on Clemmons' Insurance

By Walter F. Roche Jr.

Victims of disbarred and jailed Nashville lawyer John E. Clemmons cannot recoup any of their $1 million in losses from the malpractice insurance policy maintained by the once prominent local attorney.
In an 11-page decision U.S. District Judge Waverly D. Crenshaw Jr ruled that the Hanover Insurance Co. has no obligation to defend or indemnify Clemmons who is currently serving an 18 year prison sentence for stealing well over $1 million from estates and conservatorships he was assigned to protect.
Describing Clemmons as "an estate lawyer who stole from his clients," Crenshaw rejected the arguments by Paul Gontarek, who was named to replace Clemmons in two cases after the former lawyer's misdeeds became public. 
Gontarek  was seeking to collect an estimated $300,000 for the estate of William Link and the conservatorship of Donald Griggs.
As Crenshaw noted, Clemmons was first named as the conservator of Link, then took on his estate as administrator and became the trustee of a special needs trust established for Link's disabled daughter.
The decision comes shortly after another court ruling set back attempts to recoup some of the lost money from Metro government. Last week Senior Judge Ben Cantrell ruled in a Davidson Circuit Court case that Metro was not liable even though probate court officials let Clemmons go for years without filing required annual accountings.
Gontarek had argued in that case that had the clerk's office done its job, the thefts would never have occurred or at least been uncovered much sooner.
In the federal case Crenshaw cited provisions in Clemmons' malpractice policy setting an exclusion for "committing any intentional , dishonest, criminal, malicious or fraudulent act or omission."
In addition he concluded that "without question Clemmons had a subjective and objective knowledge Hanover Insurance would not provide him coverage for stealing from his clients' estates."
The judge also rejected Gontarek's effort to collect on the Hanover policy claiming Clemmons was negligent by failing to obtain the required level on a bond filed in the cases.
Crenshaw found that claim was filed too late and did not meet the deadlines set in the policy.
"Clemmons knew the nature of the injury he had inflicted on his clients," Crenshaw concluded.
"The substantial cause of the loss to the estate was Clemmons's theft of funds."
Contact: wfrochejr999@gmail.com