With Defense Declared Absurd, Metro to Pay Up

By Walter F. Roche Jr.

Following a court ruling in which Metro's defense was declared "absurd," Metro Council is set to act on a resolution paying $300,000 to the estate of a man who was cheated out of nearly $800,000 by a court appointed conservator.
The resolution set for a vote Tuesday would pay $300,000 to the estate of William C. Link to settle a lawsuit filed in behalf of the estate four years ago.
Metro lawyers had argued that the claim was barred by a one year statute of limitations and a Davidson Circuit Court judge dismissed the suit on that basis.
The Link estate was one of several cases in which Nashville attorney John Clemmons, as a court appointed conservator, stole over $1 million. Clemmons entered a guilty plea to criminal charges and is now serving a 25 year sentence. He was charged with stealing $771,009 from Link's estate.
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.
Though 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.
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