$6.7M judgment granted, but award is another story

Wednesday, June 22, 2011

One of Tennessee's senior judges has granted a $6.7 million judgment in a malpractice case here, but because of two bankruptcy cases, the amount to be paid will be nothing by the defendant and possibly pennies on the dollar by an insurance company.

That's according to the defendant, Drew Davidson, and several others involved in the case, as well as public records at the Marshall County Circuit Court Clerk's office in a case brought by two lawyers on behalf of heirs to a large estate that grew in conjunction with a contested last will and testament.

Disputes over the two wills began about a decade ago before Joseph Owen Boote Jr. died. Changes to his will included Davidson as an advisor to Boote's wife, Martha McCaleb Linger Boote, who's since died. Her heirs sued Davidson.

Before Joseph Owen Boote Jr. died, he directed Davidson to tear up the last of three amendments to the man's will, Codicil III. Following his client's directive, Davidson did so, but only after his client's death, instead of in his presence. That and other reasons were cited by Senior Judge Donald Paul Harris when he ruled June 8 that Davidson failed to meet expected standards of practice.

During the years since Boote's death, as disputes over the estates continued, Davidson declared bankruptcy and he is no longer personally responsible for claims, he's explained. Davidson did have malpractice insurance, but his carrier, the American National Lawyers Insurance Reciprocal (ANLIR), also filed for protection from creditors and was still in Bankruptcy Court when Harris ruled.

In a reference to ANLIR's bankruptcy case, Harris ordered postponement of execution of his judgment against Davidson until the bankruptcy court rules.

Complicating the estates of Joseph and Martha Boote was their prenuptial agreement that kept their assets separate. Subsequently, Joseph Boote wanted Martha Boote to have the opportunity to inherit more, a desire contrary to the prenup that should have been revoked, Harris's order shows, citing another act of malpractice.

Attorneys Ben H. Cantrell of Nashville and H. Thomas Parsons of Manchester represented Pam and Howard Stewart Warner III in the civil case against Davidson. Lewisburg-based attorney Walter Bussart was involved in the case as a witness and a participant in related cases.

Among those related cases was one heard in the Tennessee Court of Appeals in which Judge William C. Koch Jr. opened his opinion by noting: "This is the fourth appeal involving the disposition of the sizeable estate" of Joseph Boote.

At age 74, Martha McCaleb Lingner married Joseph Boote Jr., 83, on Dec. 28, 1990 in Lewisburg. Court records indicate that they were happy together.

The Marshall Tribune received an unsigned typed letter telling the dollar amount of the judgment in the malpractice case. The return address was Tullahoma City Hall.

Winchester-based attorney Clinton H. Swafford was one of the witnesses in the case. Contacted before Harris' final judgment was filed, the experienced counselor was asked about the case. He replied that he'd spent many hours researching the circumstances before expressing an opinion.

Asked if he thought this was a rare case, Swafford replied, "Oh, yes, yes."