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IN THE COURT OF APPEALS
FOR THE MIDDLE SECTION OF TENNESSEE
AT NASHVILLE
MARK
ISRAEL
)
)
Appellant,
)
)
vs.
) Case No.: M2011-00145-COA-R3-CV
)
ROBERT R. SMITH, as
Conservator ) Trial Court No.: 2010-19
For the Estate of H. BOYD
ISRAEL, )
Ward,
)
)
Appellee.
)
AFFIDAVIT OF MARK ISRAEL
Personally appeared before the
undersigned officer, duly authorized to administer oaths,
came Dawn Israel, who, upon being duly sworn, deposed and
states as follows:
1.
My name is Mark Israel;
I am the Appellant in this case. I am over 18 years
of age and make this affidavit upon my personal knowledge.
2.
My father, H. Boyd Israel, died
on January 20, 2011. His obituary is attached as Exhibit
1.
3.
Prior to his death, I did
everything in my power to make sure that my Dad was taken
care of properly and that his money was not spent
unnecessarily. I gave up my own rights to see my Dad hoping
that he would continue to see my three kids, two of which he
had gotten to know. Sadly he never saw or spoke to my
youngest.
4.
Unfortunately, in trying to take
care of my Dad, I was involved in a horrible situation in
the Lee County, Georgia, Probate Court. To top off
everything that happened over four years time, I hired a
lawyer in June of 2009 who committed fraud on me and the
courts of Tennessee, Georgia and Alabama. Just two weeks
ago I discovered information about Mr. Vogt’s current
situation. He has been disbarred and charged criminally.
Attached as Exhibit 2 is the information I found on the
internet. I also talked to Mr. Vogt’s lawyer and the
prosecutor, who may press additional charges.
5.
Back in 2006, when I first started
to try to help my Dad, I had to resort to legal proceedings
and lawyers when there was no other way to make sure he was
taken care of. I know that with my Dad’s death, I can no
longer help him. I am not a lawyer and I may not understand
all of the legal maneuvering that went on, but I do know
right from wrong. I do know what fairness and justice are
and I firmly believe that I was not treated fairly or just
by the system in Georgia, and my father’s rights and assets
were not honored and protected. I simply ask for this Court
to look at all of what happened and tell me what is fair and
just.
6.
I have not pursued further appeal
in the Georgia Court and/or brought this information to
light in Tennessee for these reasons. First, by the time I
was aware of Vogt’s fraud upon the courts of TN, GA and me,
the time had expired for me to have any course of action in
either location. Second, I did nothing further in Georgia
because I knew that I would not get a fair shake. Lastly,
after consulting with my Tennessee lawyer, I held out to the
very end that my kids might get to see my Dad one last time
before he died. They did not. I knew that once I revealed
exactly what happened to me in the Lee County, Georgia,
Probate Court, I would have no chance of ever making peace
with the individuals involved.
7.
Now, with my Dad gone, I am
willing to fight on for what is right and I can only hope
that what happened to me will not happen to others in the
future. I respectfully ask this court to allow all of the
following facts to be considered in determining whether or
not I should pay these judgments.
8.
In October 2006, I went
to Georgia to bring my Dad home to Tennessee for a visit. I
was shocked and disturbed by what I saw. My parent’s home
had a leak in the sewage system with raw sewage below the
house. My Dad was hardly able to stand up from his chair,
had visible tremors and was “blanking” mentally. I
immediately called a plumber and had the leak fixed. I was
so shaken by what I saw I called my wife back in Tennessee
crying.
9.
Later that day, I brought my Dad
back to our home in Franklin, Tennessee. We were able to
quickly get him an appointment with a primary care doctor at
Vanderbilt. He was referred to neurological and urological
specialists at Vanderbilt who determined the presence of
Alzheimer’s, Parkinson’s with dementia and significant
prostate problems. He began to receive medical treatment in
the form of home health care, occupational and physical
therapy and was prescribed medications to slow the
progression of the diseases and help with the prostate
problems.
10.
We also took Dad to a dentist for
an emergency exam on October 23, 2006. Several teeth had to
be extracted. The dentist wrote a letter stating that the
damage was due to “long term neglect and lack of proper oral
hygiene.” When the local dentist had her assistant call my
Dad’s Georgia dental provider to get records, she was told
“Dr. Israel came to her office with several problems, and
his wife said to wait until the problems get worse and then
she will have the teeth extracted, because of their money
situation. However, this is not what Dr. Israel preferred
at the time.”
11.
Sometime in November I asked Dad
for someone he thought could help him and Mom back home. He
recommended attorney Bill Moorhead as a long time family
friend. I contacted Mr. Moorhead, sent medical records and
a brief outline of what we were learning with regards to
Dad’s condition and state of mind. Eventually, Dad hired
him to help.
12.
From the very beginning of this, I
was just trying to assist my Mom and Dad and had no
intention of being directly involved. Mr. Moorhead was my
primary contact. On November 13, 2006 I emailed him: “As a
family member I am convinced I am unable and should not be
the one to try and get people and situations to change. But
I am also committed to helping my parents get through this
difficult time and for the rest of the lives if need be.”
On November 15, 2006, Mr. Moorhead answered back that he
agreed “that your father’s engagement of me now might prove
helpful upon his return to Albany.” On November 14, 2006,
after I sent him information on Dad’s medical care, Mr.
Moorhead emailed me that “[t]hanks for the fact sheet. Your
father will need some very carefully considered help. I
will do my best to see that he gets it.” Attached as
Exhibit 3 are the emails with Mr. Moorhead from this time
period.
13.
Prior to Dad’s returning home, the
assessments done here in Tennessee said that he would need a
guardian and conservator and 24 hour supervision. My Dad
showed great improvement during the time he was in Tennessee
with us. For example, he stopped
weeping, gained physical strength in his legs and began to
walk unassisted. He was able to mostly dress himself and
was able to eat solid foods. He gained weight, got new
glasses and his fear receded. He enjoyed reading, doing
puzzles, baking cookies, going to church, going to the park
with the kids, visits from some our friends. He laughed, a
lot. He engaged in creative play with the kids and loved
reading books to them. His outward appearance improved
dramatically. He commented that he had checked out and was
glad to be "checked back in" as he called it. He was
enjoying participating in everyday activities. He was
always happy to see the home health care because they were
here to see him. He went from not being able to stand
unassisted (we started him in a wheelchair when he got here)
to being able to complete 20 full squats with his back
against a wall.
14.
I took Dad back to his home in
Georgia sometime in the third week of January, 2007. Prior
to that I had been communicating regularly with Mr.
Moorhead, by phone and email. Emails attached as Exhibit 4.
15.
I took Dad home believing Mom was
going to be his guardian and that Mr. Moorhead would assist
in doing the paperwork necessary to make that happen. Mom
would be provided whatever help she needed. When I brought
Dad home, I met with his doctors, dentist, pastor and Mr.
Moorhead. His doctor ordered a home health assessment. This
upset my Mom and I returned to Nashville two days later in
January 2007.
16.
In early March, 2007, there was
still no guardianship and my Dad was regressing rapidly. I
continued to be in touch with Mr. Moorhead about it and on
March 15, 2007, he emails me: “My assistant Angela Gattie is
pouring over the documents turned over by your mother to
prepare the petition for conservatorship/guardianship. She
has been working on it for the last 2 days with some
understandable interruptions. She should have a draft for
my review in the next day or two.” Email attached as
Exhibit 5.
17.
I was also concerned about my
Dad’s financial affairs and passed along my concerns to Mr.
Moorhead. In April, 2007, Dad left the house by himself,
fell and broke his nose and suffered face lacerations. I
was told 48 hours after he was hospitalized about his
accident and I contacted the hospital social worker. I told
her I believed it was not safe for my dad to return home
without help and oversight for my mom. She said she must
contact Georgia Adult Protective Services based on that
information. I continued to email Mr. Moorhead who told me
on April 17, 2007, that: “I am meeting with your father,
mother and Kim tomorrow at 10:00 a.m. we are going to
address all of the important issues concerning your father’s
situation. This will include safety concerns, financial
issues and the terms of the conservatorship. We will
attempt to work out something that is in the best interest
of your father on all of these issues.” I heard nothing and
continued to email Mr. Moorhead, asking for some form of
communication concerning my Dad’s care so I could know that
his needs were being met. Mr. Moorhead promised to discuss
my request with my parents. Emails attached as Exhibit 6.
18.
Rather than a
guardianship/conservatorship, I later learned that Mr.
Moorhead had prepared general and healthcare powers of
attorney appointing Mom as Dad’s agent to handle all of my
Dad’s financial and medical affairs. Considering all that
Mr. Moorhead knew about my Dad’s mental and physical
condition, the issues regarding finances and the problems
that previously existed, I did not understand why this
happened. I contacted a local attorney in Georgia, Michael
Hall, and through him filed for guardianship/conservatorship
for my Dad on June 22, 2007. Mr.
Hall agreed to become conservator to provide professional,
non-family member oversight and accountability in Dad’s
finances. This would allow me to focus solely on Dad's
personal care and quality of life issues, and would dismiss
any accusation that I might be doing this for personal gain.
19.
The Probate Court Judge ordered a
neuropsychological evaluation, but at Mr. Moorhead’s
request, did not allow the evaluator access to Dad’s medical
records.
20.
On July 12, 2007, my Dad,
represented by Mr. Moorhead, filed his Answer and Defenses
objecting to the assertion that he was incapacitated. His
alternative position was that my Mom should be named the
guardian and conservator, that I was unsuitable to be
guardian and that Michael Hall was unsuitable to be
conservator. My mother and siblings all filed affidavits
stating my father did not need a guardian and conservator
and was capable of taking care of himself and managing his
affairs.
21.
On July 30, 2007, the evaluator
appointed by the Probate Court issued his report and said
that Dad needed both a guardian and conservator. Shortly
after that, for some reason, my attorney, Mr. Hall then told
me he could not serve as conservator. Just last week, the
mediator, Ms. Drake, told me that Mr. Hall and Mr. Moorhead
used to be partners. This was never disclosed to me by
either of them.
22.
The Probate Court Judge ordered
mediation to be held on September 7, 2007. My wife Dawn and
I attended with one of our kids. Gayle Drake was the
mediator. At the mediation a settlement was reached with my
Mom, my brother Dennis Israel and an independent third party
being named guardians. A local accountant was eventually
named conservator, Mr. Robert Smith. The guardians were to
report quarterly and the conservator annually. I could ask
questions to the guardians about Dad’s care one time per
report. Mr. Hall told me that the hearing to enter the
Final Order would be the next week. There was never a
hearing on the Final Order; it was signed by the Probate
Court Judge on November 5, 2007. The Settlement Agreement
was made a part of the Final Order and was the source of the
litigation that has ended up in this Court. During this
time, Mr. Hall did send a letter to Mr. Moorhead outlining
his concerns with one of my siblings. The letter and
Settlement Agreement are Exhibit 7
23.
The Settlement Agreement contained
nothing limiting calls to my Dad. The next day, when my
daughter called to talk to Dad, he told my wife that he
cannot talk to the kids because those are the “rules.” Up
until this time my daughter and Dad spoke every Saturday by
phone. With one exception, I was not allowed to speak to my
father after the day of the mediation. The one exception
was Thanksgiving, 2007. I called
my parents’ house and they had installed an answering
machine. I left a message telling them where we were and
that we wanted to come over and see them (it’s less than 2
hours away). Mom called me back and said I could not come
and I was not welcome. Dad picked up an extension and asked
me to please not come. He was scared to death.
24.
Our attempts to call Dad from then
on were met with hang-ups and busy signals.
25.
At the end of December, 2007, the
first guardian report was filed. In early January, 2008, I
attempted to call Mom to ask questions about the report.
She told me that she would have to talk to Mr. Moorhead and
get back to me. I called my brother Dennis on his cell
phone and he also said he would have to call Mr. Moorhead
and call me back. Dennis did call me back and said that all
the guardians had to be together at the same time to discuss
the report, that I could not talk to them separately. I
disagreed and told him so, Dennis said he would talk to
everyone and get back to me.
26.
Dennis did call me back and told
me a time that I could call to talk to everyone and we could
talk about the guardian report at that time. I called back
when I was supposed to and it did not work out because of a
problem they were having with Mom and Dad’s phone. They did
not want to have the call on Dennis’ cell phone and gave me
another time to call.
27.
I called back at the time I was
told to. Dennis was not there and Nancy Goode answered.
Nancy told me that she could not speak to me privately and
that I was violating the Settlement Agreement by calling
more than once. We ended that attempt to discuss the first
guardian report.
28.
On January 17, 2008, my attorney,
Michael Hall sent a letter to the Probate Court Judge and
Mr. Moorhead. Mr. Hall, without me knowing and without my
permission, attached an email that I sent to him. This is
the letter that is the basis for the first “violation” of
the settlement agreement according to the papers filed with
this Court. Mr. Moorhead promptly wrote a letter accusing
me of a violation. I was very upset and told Mr. Hall. He
subsequently quit representing me and told me by letter with
my file to “feel free to file a complaint concerning me to
anyone that you feel will listen.” Exhibit 8 is Mr. Hall’s
January 17, 2008, letter with my email, Mr. Moorhead’s
January 18, 2008, letter, Mr. Hall’s letter quitting and his
letter that came with my file.
29.
On January 28, 2008, I wrote a
letter to the Probate Court Judge asking for guidance. In
September, 2009, this letter was used to find me in contempt
of court. Mr., Moorhead wrote a letter to the Probate Court
Judge on February 13, 2008 and the Judge then wrote me on
February 15, 2008 and told me that I could not call my
parents’ house until my Dad consented. I didn’t understand
why my request for guidance from the Probate Court ended up
being the cause of me being found in contempt of court. I
wrote to the Probate Court Judge on February 19, 2008, in
response and told him that I would abide by his directive,
which I did. The letters are Exhibit 9.
30.
In March, 2008, I received the
guardians’ second quarterly report. I called Nancy Goode to
set up a time to talk. She told me she would check with the
other Guardians and get back to me. I asked her to return
call me so I was not violating anything. I waited three
weeks, heard nothing and then called her back. She told me
the first available time for her was in late May. I told
her that was not acceptable and I would ask the Probate
Court Judge to address it. To the best of my knowledge, I
called Ms. Goode no more than five times and perhaps less.
31.
That was the last time I spoke to
any of the Guardians until my Tennessee lawyer arranged a
call through Mr. Moorhead in September, 2010, to discuss my
Dad’s condition after he suffered a stroke.
32.
In late April, 2008, I wrote a
letter to the Probate Court Judge informing him that I had
not received my one call regarding the guardian report.
That letter is Exhibit 10 (it is wrongly dated January 23,
2008).
33.
On May 9, 2008, Mr. Moorhead, as
the guardians’ lawyer filed a “Petition to Modify
Guardianship and Conservatorship.” The Probate Court Judge
signed the proposed Order and filed it the same day. The
Petition and Order is Exhibit 11.
34.
In July, 2008, I hired two lawyers
from Atlanta, Georgia, David Pollan and Kevin O’Sullivan.
On July 14, 2008, they filed two motions on my behalf. The
first was a Petition for Removal of Conservator and Guardian
or in the Alternative, Modification of the Conservator and
Guardianship Estates. The second was a Motion to Set Aside
Judgment, the May 9, 2008 Order. These motions are Exhibit
12.
35.
The parties then attempted to
settle by negotiating. Exhibit 13.
36.
On July 24, 2008 and August 5,
2008, the Probate Court Judge filed two letters about the
conservator. The first said that “all necessary reports
have been filed.” At the time, no reports had been filed by
the conservator. The second letter stated that the
conservator had been excused from filing the ninety-day
report because “financial information in initial petition
was very detailed.” Actually, we had left blanks in the
initial petition and had underestimated Dad’s income as
approximately $3,800 when it was actually about $80,000.
These two Probate Court letters are Exhibit 14.
37.
My lawyers then filed an Amended
Petition for Removal of Conservator based upon the Probate
Court’s letter. Exhibit 15 to my affidavit (without
exhibits).
38.
On October 22, 2008, the
conservator filed an Inventory and Asset Management Plan.
Mr. Moorhead’s letter to the Probate Court Judge said it was
filed rather than “debate the effectiveness of your waiver.”
His letter is Exhibit 16.
39.
On November 10, 2008, Mr. Moorhead
filed, on behalf of the guardians a Motion for Contempt. It
was based upon the Michael Hall letter sent January 17,
2008, without my permission, my request for guidance, my
April letter telling the Probate Court Judge that I had not
received my call, the motions filed by my attorneys in July,
2008, extra calls to Nancy Goode, and a communication I had
with a person at the American Alzheimer’s Association
(ALZ). I was accused of filing a complaint against Nancy
Goode as guardian by the guardian, when what actually
happened is that it is against that organization’s policy to
have one of their employees act as a guardian and they had
no knowledge Nancy Goode was acting as a guardian for my
dad. No complaint was ever made to or filed with the ALZ.
The motion is Exhibit 17.
40.
On October 20, 2008, the Guardians
agreed to set aside the May 9, 2008, Order “to correct any
potential procedural errors that exist…” Mr. Moorhead
letter and other filings on this issue are Exhibit 18.
41.
Also in October, 2008 my attorneys
inquired and filed papers regarding the shortcomings of the
conservator’s report that is missing many items. We ask for
records to support the conservator’s report and for the
conservator to post the required bond, which he eventually
does. On the first of December my attorneys withdraw the
Amended Petition for Removal of Conservator without
prejudice.
42.
On January 14, 2009, Mr. Moorhead
wrote the Court asking the Probate Court Judge to remove the
pending Motion for Contempt from the docket.
43.
In late February, 2009, my
attorneys notified me that they were withdrawing. I was
extremely upset and sent a letter to them and copied the
Probate Court. In hindsight I wish I had not sent the
letter and not quoted the things my attorneys said. While
truthful, the letter is insulting and I apologize to all
concerned. I wish to be totally upfront with this Court and
attach the letter as Exhibit 19.
44.
I also filed an Objection to the
Conservator’s Annual Return that was filed on March 5,
2009. It is Exhibit 20.
45.
On April 1, 2009, the conservator
filed an amended return, his Answer to my objection and a
Motion for Protective Order. The Probate Court signed and
entered the proposed Orders the same day. The Answer,
Motion and Orders are Exhibit 21.
46.
On April 14, 2009, the conservator
filed a Motion for Attorneys Fees. Within the motion is an
allegation that my behavior was abusive. I filed a response
on May 6, 2009, with an affidavit by my former attorney, Mr.
O’Sullivan, that disputed that allegation. The motion and
my response is Exhibit 22.
47.
On April 20, 2009, I filed a
Motion to Disqualify the Probate Court Judge. Mr. Moorhead
filed a letter in response the same day and the Probate
Court Judge denied my motion by way of letter dated April
30, 2009. I responded and filed a second Motion to
Disqualify on May 20, 2009. The documents are Exhibit 23.
48.
On April 29, 2009, I filed two
motions to set aside the judgments that had been entered on
April 1, 2009. The conservator, through Mr. Moorhead, filed
a response and an additional Motion for Attorney’s Fees. I
filed a response to that motion on May 20, 2009. The
documents are Exhibit 24.
49.
May 4th, 2009, I wrote
Kathy Cash, the Lee County probate court clerk a letter
requesting that I be sent stamped copies of all future
filings. My letter is Exhibit 25. In court records
furnished to my Tennessee attorney by the Lee County Probate
court my letter requesting stamped copies of filings is not
present. I received no copies of any Lee County probate
court documents directly from the court after receiving the
June 9th, 2009 hearing notice.
50.
The pending motions were set for
hearing on June 9, 2009. After a failed attempt to hire a
different attorney 2 days before the hearing, the declining
attorney recommended me to contacted Elliot Vogt. I
retained Mr. Vogt on June 5, 2009, and he filed a Motion to
Continue on June 8, 2009. His letter and Motion to Continue
is Exhibit 26. Mr. Vogt told me that his request for
continuance was denied, that he attended the hearing and I
lost all the motions. The June 15, 2009 Orders that are
part of this case came out of this hearing.
51.
Later, Mr. Vogt told me that he
had timely and properly filed an appeal. He did not. Mr.
Vogt also did not file an appellate bond with 2500.00 I paid
him to file said bond.
52.
Mr. Vogt also failed to tell me
and send me copies of the other pleadings that were filed,
including a Motion for Contempt.
53.
Mr. Vogt did not tell me that
there was a hearing that I needed to attend on August 25,
2009 or that he did not attend on my behalf.
54.
Mr. Vogt did not notify me of and
failed to represent me in hearings held in the Lee County
Probate Court from June 10th 2009 through January
2010, when I discovered he had been suspended and promptly
terminated his representation of me by letter to the Lee
County Probate court and to Mr. Vogt.
55.
On August 26, 2009, Mr. Moorhead
submitted documents related to my sister Kim being appointed
guardian ad litem in order to approve extra payment to the
conservator. Contained in Mr. Moorhead’s instructions is
the specific notation that I did not need to be notified.
The documents were entered and I was not notified. They are
Exhibit 27.
56.
Mr. Vogt did not tell me or send
me copies of the September 16, 2009, Orders that resulted
from that hearing. He also did not tell me that there was
an arrest warrant out for me.
57.
October 14, 2009, I was arrested
and thrown in jail. Through the investigation of my
Tennessee lawyer, I learned of the contempt hearings for the
first time.
58.
In October, 2010, I received an
Order with no file stamp. The Order relieved my father’s
guardians from making quarterly reports and stated it was
effective September 28, 2010. It also relieved the
guardians from ever having to talk to me about my Dad’s
health. My Tennessee lawyer asked for a copy of the file
stamped copy and any motions and correspondence that
preceded the Order. All we received was a file stamped copy
dated October 29. These documents are Exhibit 28.
59.
The Georgia Uniform Rules for the
Probate Court is Exhibit 29.
60.
The Georgia Code of Judicial
conduct is Exhibit 30.
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