Metro to Pay for Conservator Theft

By Walter F. Roche Jr.

Metro Nashville government will be paying $300,000 to settle a suit filed in behalf of a man who was cheated out of nearly $800,000 by a court appointed conservator now serving a lengthy prison term.
A resolution authorizing the payment was approved without debate Tuesday by Metro Council.
The payment appears to be the last chapter in a scandal that landed former Nashville attorney John E. Clemmons in jail for a 25 year sentence.
Clemmons, 70, entered guilty pleas to charges he stole more than $1 million from wards entrusted to him in probate courts in Davidson and Rutherford counties.
The payment approved this week will go the estate of William Link.  Clemmons was first appointed as Link's conservator in 2003 and was placed in charge of his estate following his death in 2004. The estate funds were earmarked for the benefit of Link's disabled daughter.
After Clemmons misdeeds became public, attorney Paul Gontarek was appointed to replace him. He subsequently filed suit against Metro government charging that if the probate clerk had been doing his job monitoring Clemmons, the theft would not have occurred.
Gontarek said Wednesday that he expects the $300,000 payment to be made in the near future.
"We are pleased with the settlement," he said, "and we appreciate the efforts of the Metro legal department to bring this matter to a conclusion."
As the Link suit noted although Clemmons was required to file annual accounting reports with the court, he hadn't filed a report on the Link case since Sept. 15, 2004.
Metro government, however, argued that any claim against Metro would have to have been filed within one year of the last time Clemmons took money from the estate which was April of 2013. Gontarek didn't file suit against Metro until 2014.
Though the circuit court accepted Metro's argument, the appeals court rejected that conclusion.
"As we understand it, Metro's defense is predicated on the notion that Mr. Clemmons could have sued for the losses to the estate that stemmed from his own malfeasance. Respectfully we find such a proposition to be absurd," Justice Arnold Goldin wrote, adding that the suit filed by Gontarek was in fact "timely."
The appeals court also rejected Metro's argument that it could not be held liable because a judgment already had been issued against Clemmons for the entire loss. The panel ruled that the so-called comparative fault principle did not apply under the facts of the case.
In fact, the court found, Metro could be liable for the entire $770,009
"Assuming liability can be established, Metro would be liable for the entire amount of damages," the ruling states, citing the concept of joint and several liability.
Gontarek said Wednesday that the recovered funds "have been and will continue to be for the benefit" of the Link estate.
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