GILL et al v. HARTSHORN et al

Filing 103

ORDER granting 60 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 05/31/2013. (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
KAREN GILL, et al.,

*

Plaintiffs,

*

vs.

*

KEVIN HARTSHORN, et al.,

*

Defendants.

CASE NO. 4:12-CV-77 (CDL)

*

O R D E R
This action involves approximately 300 real estate holding
trusts whose beneficiary is the Gill Family Cornerstone Trust.
Defendants Kevin Hartshorn, Daniel Van Gasken, Eastern Property
Development,

LLC,

and

South

East

Enterprise

Group,

LLC

(collectively, “Hartshorn Defendants”) seek a declaration that
Defendant Loren Gill and Intervenor Plaintiff Wallace Whitten
(“Whitten”) are not trustees of the real estate holding trusts.
Presently pending before the Court is the Hartshorn Defendants’
Motion for Summary Judgment (ECF No. 60), which Plaintiffs Karen
Gill and Lauren Gill do not oppose.

For the reasons set forth

below, the motion is granted.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

Fed. R.

Civ. P. 56(a).

In determining whether a

genuine

dispute of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant

or necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

DISCUSSION
The

key

question

for

purposes

of

the

pending

summary

judgment motion is whether there is any evidence to create a
genuine fact dispute that Loren Gill and Whitten are current
trustees of the real estate holding trusts.

As discussed in

more

the

detail

below,

the

evidence

viewed

in

light

most

favorable to Loren Gill and Whitten reveals that they are not.
The Gill Family Cornerstone Trust (“Cornerstone Trust”) is
an irrevocable trust settled by John A. Gill, Jr. on June 18,
1999.
Gill

See generally Hartshorn Defs.’ Mot. for Summ. J. Ex. A,
Family

Trust”).

Cornerstone
The

Trust,

Cornerstone

(“Hartshorn”) as trustee.

ECF

Trust

No.
named

60-3

(“Cornerstone

Kevin

Hartshorn

Id. at 3.1

1

The Cornerstone Trust does not contain page numbers. For the sake of
simplicity, the Court refers to the page number of the electronic
version attached to the Hartshorn Defendants’ summary judgment motion,
ECF No. 60-3.

2

It

is

separate

undisputed

trust

that

declarations

John
under

Gill

executed

which

he

a

number

conveyed

of

certain

property to various holding trusts, including a number of real
estate holding trusts.
real

estate

holding

Cornerstone Trust.

It is also undisputed that all of the
trusts

had

the

same

beneficiary:

the

Finally, it is undisputed that, except for a

description of the property

held by the real estate holding

trusts, the real estate holding trusts all contain substantially
similar wording.
I.

The Trust Documents
Each

trustees.

real

estate

holding

trust

names

three

initial

See, e.g., Hartshorn Defs.’ Mot. for Summ. J. Ex. C,

202 Oakridge Commercial Real Estate Holding Trust at 3 (“202
Oakridge Trust”), ECF No. 60-6.2

It is undisputed that the

initial trustees of all of the real estate holding trusts were
Daniel Van Gasken, Wallace Whitten, and Robert Hurst.

Id.

Each

real estate holding trust refers to a “trust protector,” who has
the

power

trustees.

to

terminate

trustees

and

to

appoint

successor

Id. ¶ 10 (“If the Trustees appointed initially herein

are unable or unwilling to serve as Trustee, a substitute or
successor Trustee needs be appointed for him or her, choosing
first from the below individuals, and the remaining Trustees, by
2

The 202 Oakridge Trust does not contain page numbers. For the sake
of simplicity, the Court refers to the page number of the electronic
version attached to the Hartshorn Defendants’ summary judgment motion,
ECF No. 60-6.

3

unanimous vote, after approval from the Trust Protector, may
elect a Trustee approved of by said Trust Protector.”); id. ¶ 18
(“The Trustees will serve for a term of two years, and which
term will automatically renew unless terminated by the Trust
Protector.”)
Each

real

estate

holding

trust

has

a

provision

that

incorporates by reference any provision of the Cornerstone Trust
that

is

missing

necessary
trust.

for

from

the

Id. ¶ 20.

the

real

administration

provide

¶ 15.1.

of

holding

the

real

trusts

but

is

estate

holding

The real estate holding trusts do not define

the term “trust protector.”
does

estate

for

a

trust

The Cornerstone Trust, however,

protector.

See

Cornerstone

Trust

Based on the Cornerstone Trust, the trust protector has

the power to remove trustees and to approve successor trustees.
Id.

¶

15.1a.

protector

“may

The
be

Cornerstone
replaced

by

Trust
a

states

unanimous

that
vote

a

trust

of

then-

subsisting Trustees at the recommendation of the General manager
of the contracted managerial organization, at any time.”
¶ 15.2a.

Id.

In addition, the Cornerstone Trust provides: “Should

the Trust organization, at any time, find itself without the
services

of

a

competent

Trust

Protector,

then

it

will

be

contingent upon the Executive Trustee to assume the powers and
responsibilities of Protector until such a time as an acceptable
replacement

is

identified

and

4

installed

by

the

Board

of

Trustees.”

Id. ¶ 15.2b.

The Cornerstone trust further states

that if the trust protector is terminated, then the investment
consulting trustee (“ICT”) “will be the normal Trustee’s first
alternative to fill the vacated Protector’s position as approved
by the Trustees.

In which case, the ICT will then fill both

positions until a suitable replacement is established for one or
the other of those positions, by the Executive Trustee.”

Id.

¶ 17.a3.

If the investment consulting trustee and the trust

protector

are

the

same

individual

or

entity

and

if

the

individual or entity vacates the positions, then “the Trustees
are therefore empowered to recruit and install (an) appropriate
successor(s)

by

a

unanimous

Trustees.”

Id.

¶

17.a4.

Trustees

will

look

to

vote

of

Under

the

the

these

manager(s)

then

subsisting

circumstances,
of

their

“the

contracted

managerial organization to fill the vacated ICT and/or Trust
Protector’s

position(s).”

Id.

¶

17.a4)1.

Though

the

Cornerstone Trust does not define the term “executive trustee,”
the signature page indicates that Hartshorn was the original
executive trustee.
II.

Id. at 22.

The Trust Protector
The

following

facts

protector are undisputed.
Smith

as

trust

regarding

the

chronology

of

trust

The Cornerstone Trust named Kerry R.

protector.

Kerry

Smith

resigned

as

trust

protector of the Cornerstone Trust in late 2003 or early 2004,

5

and

Jay

Nicol

was

appointed

as

his

replacement.

Jay

Nicol

resigned as trust protector in February 2011.
The Hartshorn Defendants assert that, pursuant to ¶ 15.2b
of the Cornerstone Trust, Hartshorn assumed the powers of trust
protector of the Cornerstone Trust and the real estate holding
trusts when Nicol resigned.
No. 66;

accord

Van Gasken Dep. 268:23-269:5, ECF

Cornerstone Trust ¶ 15.2b (“Should the Trust

organization, at any time, find itself without the services of a
competent Trust Protector, then it will be contingent upon the
Executive Trustee to assume the powers and responsibilities of
Protector until

such a time as an acceptable replacement is

identified and installed by the Board of Trustees.”).
Loren Gill and Whitten contend, however, that Loren Gill
became

trust

protector

of

the

Cornerstone

Trust

after

Nicol

resigned.

In support of this contention, Loren Gill and Whitten

point

the

to

declarations

of

Loren

Gill

and

Steve

Thomas

(“Thomas”), who have differing accounts of the trust protector
story.

According to Thomas, Loren Gill was appointed trust

protector because, under ¶ 17.a3 of the Cornerstone Trust, the
“next choice” after Nicol resigned as trust protector “would be”
the investment consulting trustee, Raymond Thorn.
¶ 9, ECF No. 83-3.

Thomas Decl.

Thorn, however, resigned from his position

as investment consulting trustee in early February 2011.

Id.

Therefore, according to Thomas, because the Cornerstone Trust

6

was without both a trust protector and an investment consulting
trustee,

the

“contracted

managerial

organization”—which

was

managed by Loren Gill—was “empowered to fill the vacated” trust
protector position under ¶ 17.a4 of the Cornerstone Trust.
¶

10.

Thomas

organization”

asserts

appointed

that

Loren

the

Gill

“contracted

as

trust

evidence

that

Id.

managerial

protector.

Id.

¶ 11.
There

is,

however,

no

the

“contracted

managerial organization” actually had any power to take such an
action

under

the

clear

terms

of

the

Cornerstone

Trust.

Significantly, Thomas misquotes ¶ 17.a4, which states that “the
Trustees”—and

not

the

contracted

managerial

organization—are

“empowered to recruit and install (an) appropriate successor(s)
by

a

unanimous

vote

of

the

Cornerstone Trust ¶ 17.a4.
that

the

trustees

then

subsisting

Trustees.”

Though the Cornerstone Trust states

“will

look

to

the

manager(s)

of

their

contracted managerial organization to fill” the trust protector
position, id. ¶ 17.a4)1, there is nothing in the Cornerstone
Trust

document

protector
evidence

away
that

that
from
the

takes
the

the

power

trustees.

trustees

of

the

of

And,

appointing
there

Cornerstone

is

a

trust

simply

Trust,

no

which

undisputedly included Hartshorn, actually approved Loren Gill as
trust protector.

Accordingly, Steve Thomas’s declaration does

not establish that Loren Gill was appointed trust protector.

7

Likewise, Loren Gill’s own declaration does not establish
that Loren Gill was appointed trust protector.

According to

Loren

appoint

Gill,

John

Gill

retained

terminate trust protectors.

the

power

to

and

Loren Gill Decl. ¶ 8, ECF 83-2.

After John Gill became a fugitive, his wife Barbara Gill signed
a document purporting to appoint Loren Gill as trust protector
pursuant to a power of attorney signed in her favor by John
Gill.

Id. ¶ 10.

Loren Gill did not, however, point to any

provision of the “irrevocable” trust documents that permits John
Gill to appoint trust protectors.

Rather, the Cornerstone Trust

document states that a trust protector “may be replaced by a
unanimous

vote

of

then-subsisting

Trustees”

and

that

the

executive trustee will assume the powers and responsibilities of
the trust protector in the event of a vacancy.

Cornerstone

Trust ¶¶ 15.2a, 15.2b.
In a remarkable display of circular reasoning, Loren Gill
maintains that he had authority, as trust protector, to convene
a meeting and have Van Gasken, Hartshorn, Troy Sinclair, and
Janet Smith removed as trustees and then to appoint Mike Gill
and Joe Gill as new trustees.

Loren Gill Decl. ¶¶ 10-13.

After

the replacement of the former trustees with the new trustees,
those new trustees confirmed Loren Gill as the trust protector.
Id. ¶ 13.

The problem with this argument is that Loren Gill was

not the duly appointed trust protector

8

when

he attempted to

replace

the

former

trustees.

Therefore,

the

attempted

appointment of new trustees is void and has no legal effect.
And, Loren Gill’s subsequent confirmation as trust protector by
his “new trustees” is likewise void because those “new trustees”
were not in fact duly appointed trustees and thus had no legal
authority

to

make

that

appointment

or

confirmation.

Accordingly, Loren Gill’s declaration does not establish that
Loren

Gill

was

appointed

trust

protector

of

the

Cornerstone

Trust or any other trust.
III. The Trustees
The
trustees

following
are

facts

undisputed.

regarding
As

the

discussed

chronology

of

above,

initial

the

the

trustee of the Cornerstone Trust was Kevin Hartshorn, and the
initial trustees of the real estate holding trusts were Daniel
Van Gasken, Wallace Whitten, and Robert Hurst.

Robert Hurst

resigned from his position as trustee of the real estate holding
trusts and that Steve Thomas replaced him in 2004.

Thomas held

a trustee position until he resigned in 2006.
According to the Hartshorn Defendants, Janet Smith replaced
Thomas as trustee in 2006.
No. 60-15.

See, e.g., Smith Dep. 29:9-17, ECF

Loren Gill disputes this assertion, contending that

he was “voted in by the trustees” to be a trustee on all of the
real

estate

Loren Gill

holding

trusts

in

2006.

also asserts, however,

9

that

Loren

Gill

Decl.

he resigned

¶ 4.

from his

position as trustee on all of those trusts on July 30, 2011.
Id. ¶ 6.

The question then arises whether he was reappointed

trustee after he resigned effective July 30, 2011.

Although

Loren Gill avers that he, as trust protector, appointed other
individuals to serve as trustees of the real estate holding
trusts in 2011, id. ¶ 13, which appointments this Court has
previously found were void, there is no assertion that Loren
Gill was reappointed as a trustee following his resignation.
Based on Loren Gill’s own declaration, therefore, Loren Gill is
not a trustee of the real estate holding trusts, and there is no
genuine fact dispute on this issue.
The remaining question is whether there is a fact dispute
regarding Whitten’s status as trustee.

Again, it is undisputed

that Whitten was an initial trustee of the real estate holding
trusts and that he served in that role until 2011.
the Hartshorn Defendants, Whitten was found

According to

to be unable to

continue serving as trustee, and he was terminated and replaced.
Van Gasken Decl. ¶ 8, ECF No. 60-7.
Loren

Gill,

holding
however,

Whitten

trusts.
is

based

remained

Loren
on

Gill

Loren

a

In contrast, according to

trustee

Decl.
Gill’s

¶

of

13.

claim

the

real

This
that

he

estate

assertion,
was

protector with authority to appoint and remove trustees.

trust
As

discussed above, there is no evidence to create a fact dispute
that

Loren

Gill

was

the

trust

10

protector.

Rather,

the

Cornerstone

Trust’s

clear

terms

give

the

Cornerstone

Trust’s

executive trustee, Hartshorn, the authority to assume the powers
of

trust

protector.

And

only

the

trustees

who

have

been

appointed consistent with the provisions of the trust can remove
Hartshorn

as

trust

protector,

which

they

have

not

done.

Therefore, Loren Gill’s declaration is not sufficient to create
a

fact

question

on

this

point,

and

the

undisputed

facts

establish that Whitten’s trustee status was terminated.
CONCLUSION
As

discussed

above,

Loren

Gill’s

own

declaration

establishes that Loren Gill is not a trustee of the real estate
holding trusts.

The contention that Whitten remained a trustee

following 2011 depends on Loren Gill’s assertion that he became
trust protector.

There is, however, no evidence to create a

genuine fact dispute on this point.

For all of these reasons,

the Court concludes that Loren Gill and Whitten are not trustees
of the real estate holding trusts, so the Hartshorn Defendants’
summary judgment motion (ECF No. 60) is granted.

IT IS SO ORDERED, this 31st day of May, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

11