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."
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