New claims filed in Thomas estate dispute

Dylan LightfootStaff

February 20, 2013

New motions and claims have been filed in the tangle of civil disputes over the estate of the late artist Florence Thomas.

On Feb.1, 2013, investment broker Naomi Johnson and Capital Investments Group filed a “motion to sever proceeding and compel arbitration” in response to a Dec. 13. 2012, complaint seeking compensatory damages from Johnson and CIG for alleged fraud and misrepresentation in the management of Thomas’ estate.

The complaint was filed by three plaintiffs: attorney J. Stanley Atwell of Greensboro, successor trustee for the Florence Thomas Living Trust (FTLT); attorney Peter Parish of Jefferson, successor trustee for the Thomas-Plummer Trust (TPT), and Betty Plummer, Thomas’ daughter and executor of her estate.

The plaintiffs allege that Johnson “exerted undue influence on Betty Plummer” and her late husband William Plummer in managing their finances, while Betty’s “age, infirmity and lack of education…precluded any exercise of free and voluntary acts.”

Johnson’s motion claims that “each and every account, and every transaction in those accounts, at issue in this lawsuit is governed by a binding, enforceable arbitration agreement.”

The motion alleges that the Plummers — with whom she had been doing business since 1995 — were fully informed of arbitration clauses for each of several accounts they opened, and that they fully understood, and made no objection to, arbitration agreements. “At all times, the Plummers appeared to be lucid and competent,” read an affidavit sworn by Johnson.

The Dec. 13 complaint also sought damages from attorney Grady Lonon of Jefferson for alleged malpractice and fraud in establishing the FTLT and administering Thomas’ estate.

Lonon was both the attorney for the estate, and an “an agent and incorporator” for the Florence Thomas Memorial Art School when he drafted a 2004 amendment to the FTLT, deleting a list of beneficiaries and replacing them with the art school, which did not then exist, according to the allegations.

On Jan. 7, 2013, Lonon filed for and was granted a Feb. 25, 2013, extension to answer the complaint against him.

A disagreement over distribution of assets from Thomas’ estate resulted in the filing of related civil complaints last year between trustees and beneficiaries of the estate.

According to a December press release by the board of directors of the art school, they received notice May 15, 2012, from attorneys for Thomas’ estate that a 178-acres parcel in Grayson County, Va., left to the school by the FTLT, would be sold to pay estate taxes.

Thomas’ estate was supposed to be tax-neutral, according to court records; after establishing the art school and funding the TPT to provide for the Plummers, no estate taxes should have been due.

The art school was established by the FTLT in accordance with Thomas’ wishes following her death in 2007. According to their press release, the art school’s board had not known about the land, nor did they recognize the name of the trustee, Peter Parish,

Under to terms of the FTLT, Betty Plummer was to be successor trustee following Thomas’ death. Thomas listed possible successor trustees to Plummer should she be unable to serve, none of which was Parish.

On Aug. 28, 2012, the art school filed a request for declaratory relief, asking the Ashe County Superior Court to “determine the rightful trustee … and to prevent the rightful trustee from using assets … designated to the school for paying estate taxes until the court rules on the validity that action.”

The Clerk of Court signed confirmation of Parish’s appointment of Atwell as the third successor trustee of the Florence Thomas Living Trust on Nov. 15.

On Jan 16, 2013, the art school filed a request that Plummer produce documentation supporting the legitimacy of Plummer’s appointment of Parish as trustee.

On Feb. 15, 2013, Plummer filed for an extension, and was granted until March 16 to produce the document.

Both Parish and Atwell have filed claims against the FTLT beneficiaries deleted by the 2004 amendment who received assets anyway.

In a counterclaim filed Jan. 28, 2013, Emory and Henry College claims to have received its portion of the estate in spring 2009, distributed by Plummer at the direction of Lonon and Johnson.

Emory and Henry College alleges that, in February 2009, Lonon faxed them an analysis of asset distributions listing all original beneficiaries. A copy of Lonon’s fax submitted as evidence referenced a “technical defect” of the 2004 amendment which would be disregarded in transferring assets.

In a Feb. 8, 2013, cross-claim, Helton United Methodist Church claimed that all original beneficiaries of the FTLT received “bequests and distributions to which they were entitled” except the church and its cemetery.

Helton Methodist’s claim requests the court to declare that the art school “has ceased to exist in that it has deeded its interest in the Art School building…in lieu of foreclosure and has no money to buy or build an art school.” The church asks that “any assets recovered…should be distributed to (HUMC) and the Ashe County Arts Council.”

Atwell, as trustee of the FTLT, has also filed a cross-claim “against the Thomas Plummer Trust and the Estate of Florence Thomas” and all third party defendants, asking the court to determine the rightful beneficiaries.

Atwell’s claim requests that the FTLT be entitled to deduct “trustee’s fees” and other legal expenses from any restitution “prior to distribution to any beneficiary”, including the art school, “who were unjustly enriched” as unauthorized beneficiaries.

While the validity of 2004 amendment to the FTLT is in question, Thomas’ wish to establish an art school in Ashe County remained unaltered from the original statement of the trust.

The Ashe County Superior Court is scheduled to hear the case on March 4.