Six depositions and three public documents could resolve five years of legal battles by revealing who filed false and misleading statements in the estate hearings of music legend James Brown — but actions in two courts this week could leave documents sealed and questions unanswered for years.
At the request of Attorney General (AG) Alan Wilson and others: on Thursday an Aiken County Judge kept in place a four-year-old gag order related to the diaries of Brown’s companion, Tommie Rae Hynie; and on Tuesday a Richland County Judge was asked to order a forced mediation—without completing discovery—in the lawsuit against former Brown trustee, Adele Pope of Newberry.
These rulings could leave unanswered several questions about a 2009 settlement deal forged by former AG Henry McMaster:
• Did McMaster fail to investigate fully the spousal claim of Brown’s companion, Tommie Rae Hynie, before giving her one-quarter of Brown’s music empire—which may be worth as much as $20 million?
• Did the current trustee, Russell Bauknight of Columbia, intentionally undervalue Brown’s music empire—including rights to Brown’s image—at $4.7 million after one of the Brown children, Terry, was the given the right of purchase? All previous trustees valued the music empire at closer to $80 million.
• What are the terms of the McMaster-created Legacy Trust, and if money from the trust goes to private parties (i.e., Brown’s children and companion), does the trust lose its tax-exempt status under the IRS code?
• What are the terms of the contingency-fee contract under which the Wingate law firm of Columbia filed suit against Pope—and is there a valid contract at all? The AG refuses to release a complete copy with signatures, even though the AG is a public official and is named as a plaintiff alongside Bauknight, some of Brown’s claimed children, and Hynie. Also of interest: by what authorization does Bauknight speak for the AG in the lawsuit?
Under Brown’s estate plan, his worldwide music empire was left to the “I Feel Good” Trust, an education charity for needy students in South Carolina and Georgia. Brown also provided education trusts of up to $285,000 for some of his grandchildren.
When Hynie and some claimed children contested Brown’s estate plan, McMaster stepped in, claiming it was the AG’s duty to protect the charity.
Under Brown’s estate plan, anyone who contested the will or trust would receive nothing, but the AG did not enforce those provisions. Instead, McMaster took over half of what Brown intended for needy children and gave it to those Brown intentionally disinherited: one-quarter to Hynie and one-quarter to six claimed children.
Brown’s trustees were instructed in the will and trust to “vigorously defend” his estate plan, and Pope and co-trustee Robert Buchanan of Aiken filed an appeal of the McMaster settlement deal. Arguments were heard in the Supreme Court Nov. 1, but no opinion has been issued.
After the appeal was filed, Pope and Buchanan were sued by the settling parties, the current trustee, and the AG’s office for allegedly causing tens of millions of dollars in damage to the estate while serving as trustees from Nov. 2007 to May 2009.
Pope has countersued, charging the plaintiffs with abuse of process, intentional interference with a contract, civil conspiracy, and fraud.
Actions of this week will likely have an impact on the outcome of these cases.
Aiken County: Hynie Diaries Gag Order
On Thursday Judge Doyet Early dismissed Pope’s May 22 request that he lift a 4-year-old gag order related to Hynie’s diaries. According to pleadings, Pope asked the Judge to lift the order so that she can freely discuss what she and others know about the diary contents.
A longtime Brown friend has said the “explosive” diaries offer evidence that Hynie was not Brown’s spouse, as she has claimed to the Court. The two exchanged vows in 2001, but Hynie was married to another man at the time, and the diaries are said to record how she pleaded with Brown to marry her.
The diaries were found in Brown’s home after his death by the original Brown trustees, who copied the diaries and widely disseminated them to 50 or more attorneys and other parties. Judge Early, at the request of Hynie attorney Robert Rosen, ordered copies taken up and returned to the Clerk of Court, but only Pope and co-trustee Robert Buchanan complied with the order. Even the AG’s office, when asked under the FOIA for a copy of the diaries, did not deny having a copy but said the copy could not be released because of the gag orders.
Early also gagged anyone from discussing the diaries, but took no action when Hynie herself discussed the contents in a television interview with an Augusta reporter six months later. The gag orders were supposed to be in effect only until another hearing could be held, but no further hearing was held.
In his Thursday ruling, Judge Early said he lacked jurisdiction to void the gag orders—even though he issued them—because of an appeal.
There is no appeal in the case where the gag orders were issued.
Richland County: Lawsuit Against Pope for Tens of Millions In Damages
The same parties who asked Judge Early not to void the gag orders have sued Pope for tens of millions of dollars, claiming she caused damage to the estate while serving as trustee from Nov. 2007 to May 2009.
The lawsuit was brought by the Wingate firm of Columbia, which claims to represent all the settling parties, including the Brown children, the AG’s office, Bauknight and Hynie.
Brown’s son Daryl, however, claimed in a June taped telephone interview that he never signed a contract with the Wingate firm to represent him.
In the Richland County case against Pope, Judge Casey Manning has been asked to order a mediation, without allowing any discovery to proceed.
For over five years, in Richland County and Aiken County cases, Hynie has stonewalled every request for her to appear at a deposition, where she can be questioned under the penalties of perjury.
In a letter to Judge Manning, Pope’s attorney Adam Silvernail asked the judge to hold the mediation after depositions can be taken and documents are released.
Silvernail claims that three public documents—the contract, the Legacy Trust, and the Hynie diary—are needed in order for the mediation to proceed, as are six depositions that could easily be completed in 60 days with cooperation from the Plaintiffs.
“Terry Brown and Russell Bauknight have told the IRS and the S.C. Supreme Court that James Brown’s worldwide music empire was worth less than $4.7 million when James Brown died…and that there has never been an offer to buy the assets. Nonetheless, this suit asserts that there was an offer in the fall of 2007 for $100 million and that Buchanan/Pope should have taken it, causing tens of millions of dollars of loss,” Silvernail wrote.
Deposing Terry and Bauknight, Silvernail wrote, would help to resolve this $95 million discrepancy in the alleged value of James Brown’s assets, a critical consideration in any mediation.
Silvernail’s letter also requests that the Newberry County Freedom of Information Act lawsuit which was consolidated with the Richland County case be severed prior to mediation. “It is not only unusual but arguably unconstitutional” that a citizen be required to participate in mediation in order to receive public documents from a public body, in this case the AG’s office, Silvernail wrote.
Final Question: Will James Brown’s Wishes Be Granted?
When informed that the AG’s office has refused to release documents, James Brown’s son Daryl asked, “What are they afraid of?”
In late June, Daryl expressed regret for having challenged his father’s will, and he said he cannot see why anyone would bother with writing a will. “I’m scared to make a will now. What do you have a will for if it’s not going to be carried out?”
“We’re sitting here saying, ‘What happened?’ I’m not a lawyer, I don’t know about estates. We went along with the advice of our lawyers and the AG’s office,” he said.
According to Silvernail, with three documents and six depositions, questions could be answered and the mediation might resolve the legal turmoil of the past few years.
But the AG’s office is fighting release of documents and depositions at every turn, alongside a battalion of attorneys for Hynie, the Brown children, and Bauknight.
That leaves Daryl Brown, still wondering what happened, still asking the question, “How did they not honor the will?”
To view a copy of the Silvernail letter and affidavit in support of releasing diaries, visit the Facebook page: James Brown “I Feel Good” Trust (FOIA Concerns).
At request of AG, judge keeps gag order on diaries
July 16, 2012
The Newberry Observer