Musician Danny Tate’s conservatorship: a case of caring or corruption? (part three)

A conservatorship (guardianship) can strip a person of their individual liberty and property rights.  While Nashville musician Danny Tate admits his struggle with alcohol and drug issues may at a point have merited assistance, never would he – or most anyone else – have dreamed that such “help” would manifest as the near depletion of his $1.5 million estate and a continued assault on any future prosperity.  These, however, are the circumstances directly resulting from a 32-month “temporary” conservatorship petition initiated in October 2007 by his brother David Tate, facilitated by attorney Paul T. Housch and sanctioned by Davidson County Circuit Court Judge Randy Kennedy.  For this reason, supporters and friends of Danny Tate along with a growing host of interested parties will be watching an Aug. 20 court hearing in which Tate will ask the court to set aside prior orders that will further diminish Tate’s financial position on the basis of “Petitioner David E. Tate’s fraud on the court and misconduct throughout this proceeding.”

Citing David Tate’s sworn deposition testimony regarding the initial hearing to conserve Danny Tate, a Motion for Relief from Judgment prepared by attorney Michael G. Hoskins reads as follows:

After filing the Petition, David received notice from his counsel that the court scheduled a hearing for October 23, 2007.  David knew where Danny was but was not worried about notifying Danny of the hearing.  David cannot remember whether he testified at the October 23, 2007, hearing.  David cannot recall whether he took an oath or raising his hand and being sworn as a witness.  According to David, on October 23, 2007, Judge Kennedy only asked him a few questions which amounted to no more than “a couple of sentences.” David can neither recall which questions Judge Kennedy asked him nor what was said by anyone during the hearing.  According to David, they were only at the courthouse for about an hour and the actual hearing took place in “maybe 15 minutes.”

At the conclusion of the October 23, 2007, hearing, David recalls that the court granted a Temporary Conservatorship, but states that he did not take an oath that day.  David testified that he did not attempt to exercise any powers as Temporary Conservator prior to the November 14, 2007 hearing.

In later deposition testimony, David Tate also testified to not attempting to exercise any temporary conservator powers prior to a Nov. 14, 2007, hearing although documentation provided by The Vanguard Group, Inc. shows otherwise.

Sleazy or sloppy?  One might think that stripping a person of their rights and perpetrating a methodical confiscation of their property would be a memorable experience, but evidently not always.  The administrative ease and casualness of process accompanying this life-altering status is also worthy of note and should serve as a cautionary tale to all Americans.

It was between the two hearings, on Nov. 2, 2007, that Danny Tate was paid an unannounced visit by the court-appointed guardian ad litem, attorney Robert H. Stratton whereupon he was served with documents notifying him of the October hearing (days after the fact) as well as of orders flowing from that proceeding, including an order directing a medical examination.

Sleazy or sloppy?  At Nashville Criminals, Ira Robins lays out the activities of attorney Stratton who by Tennessee state law “owes a duty to the court to impartially investigate and to determine the facts and report the facts to the court.”  He additionally had an obligation to “Verify that the respondent and each other person required to be served or notified was served or notified.”  Robins says this of the report submitted to the court at the November hearing.

Attorney Stratton’s report clearly shows that he read only Dr. Kenner’s fictitious report, spoke with Danny’s siblings and ex-wife who actually provided little or no information about Danny’s drug abuse habits, and conducted absolutely no investigation into his financial activities. Remember, a substantial portion of David Tate’s PETITION TO APPOINT TEMPORARY GUARDIAN involved his allegations that Danny was mis-managing his money by purchasing drugs.  Attorney Stratton’s report also clearly shows that he was the person who “served” Danny with the PETITION on November 2, 2007,  nine (9) days after the hearing, and in violation of the law.  Even though Attorney Stratton’s investigation “to determine the facts” was so deficient, and his “report” so lacking in any type of pertinent information, he submitted his bill for $2,390.46 which was approved by Judge Kennedy.  That payment was paid by David from Danny’s money.

Danny Tate attended the Nov. 14, 2007, and the pending motion describes his participation as follows:

On November 14, 2007, Danny appeared in court dressed in a suit after having been notified of the hearing only twelve (12) days prior.  Although on October 23, 2007 Mr. Paul T. Housch, Esq., certified under Rule 11 that he mailed Danny a copy of the Order Setting Hearing Date for Petition for Appointment of Conservator, the October 23, 2007 Order Appointing Temporary Conservator, Order Appointing Guardian Ad litem, and the Order Directing Medical Examination, Danny never received any of these documents because at that time David was forwarding all of Danny’s mail to his Memphis address.  For the same reason stated above, prior to the November 14, 2007 hearing, Danny never received the Report of the Guardian Ad Litem, nor Dr. Kenner’s Report of Physician, Narrative Report or Supplemental Report.  In spite of having such short notice of the hearing and absolutely no advance knowledge of the evidence or testimony to be presented against him, Danny appeared at the November 14, 2007 hearing and requested a continuance so he could hire adequate legal counsel to represent him, which the court summarily denied.  According to the November 14, 2007 Order Appointing [Temporary] Conservator, Danny did not testify that day.

A key witness that day was Dr. Willliam D. Kenner who is reported to have read from his Physicians’s Report and Narrative Reports.  Nashville Criminals provides this overview of his actions:

On November 9, 2007, Dr. Kenner’s report, sworn on oath, was submitted to Judge Kennedy.  Dr. Kenner had conducted a surprise visit to Danny Tate’s home; and after little more than an hour, reported that Danny suffered a disabling and dangerous addiction to crack cocaine and that his physical appearance was that of a long term crack user.  Dr. Kenner never took Danny’s blood pressure, pulse rate, temperature, or urine for a drug screening test.  He never did any physical testing, no diagnostics, no neurological examination, no standardized psychological testing, and no intelligence testing.

Dr. Kenner’s report also stated that Danny was in need of a conservator or guardian, for his physical well being, financial affairs, consent to medical treatment, and consent to relocation.  Dr. Kenner further reported that Danny was taking medication twice a day.  Even though the PETITION gave the name of Cumberland Heights, Dr. Van Orden, and Dr. Kenner’s report showed he knew Danny was taking prescription medication for depression, he made no attempt to contact Danny’s own medical physicians or check his medical history.  Dr. Kenner did have a court order that would have given him access if he would have tried.

Dr. Kenner’s methodology and conclusions were later challenged during depositions which Danny Tate’s motion details as follows:

Dr. Kenner testified that when performing a forensic evaluation of a patient’s medical history “by all means, you need to get their medical records.”  However, Dr. Kenner never obtained Danny’s medical records prior to filing his reports with the court.  Dr. Kenner testified that as a physician, he has authority to have someone involuntarily detained where their presentation is so dire that he reasonably believes they are an immediate threat to themselves or others.  Dr. Kenner testified that after evaluating Danny on November 8, 2007 he concluded that Danny was not an active danger to himself.  Dr. Kenner admitted that he had never met Danny prior to his interview so he had no way of knowing whether he had lost weight or its cause.  Dr. Kenner testified that if Danny “had recently began to use crack, I would probably not have made the recommendations to the court that I did.  But he had obviously been using for a number of years.”

Dr. Kenner testified that the only financial information he collected from Danny was his annual income, and that he did not inquire as to whether Danny’s financial obligations were current.  Dr. Kenner did not ask Danny whether his mortgage was current and he did not check to see if any of Danny’s bills were late.  According to Dr. Kenner, “I did not know how he was managing his finances.”  Still, however, Dr. Kenner concluded that Danny needed a conservator over his person and his finances.

Once again, sleazy or sloppy?

After the November hearing, per the motion, David Tate and his sisters removed valuable property from Danny Tate’s home, including the equipment from his home recording studio.  In deposition testimony, David Tate acknowledged that his brother made a living by writing music and would be precluded from continuing to write and compose music without his musical equipment.  David Tate’s testimony further revealed how after the November 2007 hearing, he removed the contents of his brother’s home and did not return Danny Tate’s home furnishings and personal property until September 19, 2008.

Regarding the removal of property, per the motion, David Tate admitted taking items, including two firearms, that were not inventoried with the court.  He also admitted to allowing Danny’s ex-wife and his sister, Rebecca Faust, to remove items that were never inventoried.  The motion states “David paid for his sisters’ travel expenses with Danny’s money.  Using Danny’s money, David wrote another sister a check for $887.14, for ‘miscellaneous purchases.’”

David Tate’s history as a fiduciary appears to include bouncing checks to both the IRS in paying Danny’s 2008 federal income taxes and a car company while purchasing Danny a vehicle.

Per Nashville Criminals,

On November 14, 2007, when Danny appeared in court, Judge Kennedy had him physically taken into custody, handcuffed, and conveyed to Vanderbilt University Psychiatric Hospital.  It was David Tate’s plan to transport Danny via air flight with an escort to an out of state facility in Boston, Massachusetts.

The plan failed when Vanderbilt University Psychiatric Hospital released Danny after only six days and advised him to seek out patient help. In essence, they did not agree with Dr. Kenner’s report.

Danny Tate’s motion further indicates that temporary conservator David Tate failed to pay this invoice and it therefore went into collections.  Other deposition testimony indicates that not once during the 32-month temporary conservatorship did David Tate check his brother’s credit report.

David Tate also testified on March 10, 2010, that “he had not communicated with Danny since the previous summer and that he had had very few conversations with Danny over the preceding eighteen months.”  While not having contact with Danny Tate during this timeframe, David Tate appeared to be taking actions on Danny’s behalf including terminating both his health insurance and musical instrument and equipment insurance.  As Danny’s house and household property were severely damaged in the recent Nashville floods, the temporary conservator’s termination decision on the musical instrument/equipment insurance resulted in devastating consequences.

Attorney Paul T. Housch appears to have had significant involvement throughout the duration of this case.  In recent days, investigator Ira  Robins sent the attorney this letter.  As a follow-up, Robins posted this information on Nashville Criminals.  Were basic legal ethics and other procedures overlooked or ignored?  Sleazy or sloppy?

Danny Tate twice attempted to have David Tate removed as conservator.  David Tate’s qualification for this position were never established, however, an alternative cited by Judge Randy Kennedy as “the man I respect most in this entire city” was still declined by the judge.  Here’s how Nashville Criminals describes these efforts:

On November 30, 2007 Danny Tate, through his then attorney Castellarin, filed a MOTION TO REMOVE OR REPLACE TEMPORARY CONSERVATOR citing various substantial reasons why David Tate should be removed or replaced as Conservator.  Judge Kennedy denied the Motion and kept David in charge of mistreating Danny and draining his finances.

On January 3, 2008, Danny’s attorney again filed a SECOND MOTION TO REMOVE OR REPLACE CONSERVATOR.  This time he added additional substantial reasons and named a very qualified independent attorney as a possible new Conservator.  Attorney George H. Cate, Jr. acknowledged his willingness to accept the assignment, in writing.

In Judge Kennedy’s January 7, 2008 ruling, he stated, in part: “your lawyer offered probably the man I respect the most in this entire city to be your conservator,  He’s an exceptional lawyer and a great man and has the patience of Job and the wisdom collectively of most of the lawyers in this city, but I’m not about to stick anybody else in the middle of this until we get a long way down the road.”

Sleazy?  Sloppy?  This case has traveled “a long way down the road” by now and maybe those questions will soon be answered.

But even as questions pile up and interest on numerous fronts increases, the legal gamesmanship continues.  The May 24, 2010, conservatorship termination was a technical win for Danny Tate, but Judge Randy Kennedy’s subsequent rulings neutered any functional victory and instead have fully demonstrated the court’s power to enable a continued financial assault against a ward whose interests, ironically, the legal system is theoretically charged with protecting.

Since the May 24 hearing, Judge Randy Kennedy has ordered that Danny Tate’s BMI royalty checks be paid into the conservatorship for David Tate to pay expenses in winding down the conservatorship.  Understand that many of these expenses relate to the conservatorship legal proceedings.  Kennedy similarly ordered the sale of remaining Vanguard assets, including pension funds, for the same purpose and authorized payment of nearly $26,000 in attorneys fees to Paul T. Housch for work performed Feb. 24 through May 28, 2010.  An attorney’s lien in favor of Housch against Danny Tate’s house is believed to still be pending.  At the upcoming hearing, Danny Tate will seek to have these rulings reversed plus, after Kennedy once denied the motion, ask the court to charge costs of the proceedings back to the conservator petitioner, David Tate.

In the last several weeks, the court has denied David Tate’s latest legal maneuverings which entailed an effort to have deposition testimony struck from the court record and a motion to alter or amend the conservatorship termination based upon alleged evidence of Danny Tate testing positive for cocaine or cocaine metabolites in the 90 days prior to the May 24 hearing.

Though experiencing some court “wins,” no authority seems concerned that every motion filed, every hearing scheduled throws Danny Tate deeper and deeper into debt.  The continued legal ploys only strengthen the sense that this case is, and perhaps always has been, more about asset looting than protecting a troubled individual and his property.  The May 24 hearing at which the conservatorship was technically terminated had both attorney Housch and Judge Kennedy proudly promoting a “we saved him” theme.  Perhaps the best measure to the conservatorship “success,” however, is found in Danny Tate’s Motion to Proceed as a Poor Person on Appeal.

In a recent e-mail copied to a few members of the media, David Tate said this of the Motion for Relief from Judgment:

This contains more fabrication, lies and manipulated information; no different than what you have been spewing all along. Your actions are nothing more than the “rantings” of an angry crack addict who refuses to take responsibility for what he has done to himself and others. Somebody spent a great deal of time compiling all of this to make it look legitimate yet there is no basis of fact.

Danny Tate’s Motion for Relief from Judgment is an 86-page document comprising 28 pages of the actual motion and 58 pages of documentation.  Most of the allegations of wrongdoing are predicated on David Tate’s verifiable acts and sworn deposition testimony.  As David Tate talks about taking responsibility, Aug. 20 will provide both sides a “day in court” and an opportunity to address their actions.    Sleazy or sloppy?  Caring or corruption?  That’s what we’ll all be there to determine.

An act of God brought the early May flooding that took lives and destroyed the property of many in Nashville.  Danny Tate lost his home and remaining possessions in the flood.  Hard as that is, his real challenge is overcoming the acts of three men – David Tate, Paul T. Housch and Judge Randy Kennedy – who under the guise of working “in the best interest of a disabled person” appear to have destroyed the fruits of Danny Tate’s past efforts and thwarted his current ability to provide for himself in the manner which well-served him for years.  And as legal expenses create mounting debt, the man who once had a solid financial status now has far more limited prospects for future prosperity.

An act of God casts light on the hardships of life, but that’s something with which we all have to deal.  The acts of this probate court cast a frightening light on the fragility of freedom and property rights across America, and as this case shows, especially in Nashville, Tennessee.  Beware.

For more info:

Musician Danny Tate’s conservatorship: a case of caring or corruption? (part two) (Aug. 16, 2010)

Musician Danny Tate’s conservatorship: a case of caring or corruption? (part one) (Aug. 15, 2010)

Nashville musician continues fight against probate court’s assault on personal, property rights (July 11, 2010)

Nashville probate court tags musician Danny Tate with conservatorship ‘freedom tax’ (June 16, 2010)

Nashville probate court still center of musician’s conservatorship (guardianship) dispute (June 7, 2010)

Musician Danny Tate freed from conservatorship, assets still targeted in Nashville probate court (May 30, 2010)

Danny Tate conservatorship cases sees increased media activity with AP coverage (May 22, 2010)

Musician Danny Tate’s conservatorship brings scrutinization of probate issue (May 18, 2010)

Musician Danny Tate shows “fight for your life” aspect of Nashville (and other) probate courts (May 3, 2010)

Austin musicians (and others) beware the guardianship plight of Nashville rocker Danny Tate (April 11, 2010)

Lou Ann Anderson is an advocate working to create awareness regarding the Texas probate system and its surrounding culture.  She is the Online Producer at www.EstateofDenial.com and a Policy Advisor with Americans for Prosperity – Texas Foundation.  Lou Ann may be contacted at info@EstateofDenial.com.

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