GILL et al v. HARTSHORN et al

Filing 175

ORDER granting 104 Motion for Partial Summary Judgment to the extent set forth in the Order; denying 105 Motion for Partial Summary Judgment; granting in part and denying in part 106 Motion for Partial Summary Judgment. Ordered by U.S. District Judge Clay D. Land on 01/03/2014. (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

Truth is sometimes stranger than fiction.1

And this case

confirms it: a successful businessman accumulates a substantial
rental property portfolio, decides to take a vow of poverty,
donates

everything

to

a

trust

constructed

by

a

“charitable

society” that focuses upon the lymphatic system as the source of
good health, becomes a minister within that society, and retains
the right to manage the property he has conveyed to the trust
until

he

flees

the

country

as

a

fugitive

before he is supposed to report to prison.

from

justice

days

After his departure,

disputes arise between his brothers, former business associates,
and children as to how the trust should be managed and who the
trust beneficiaries are.

1

Mark Twain actually said, “Truth is stranger than fiction, but it is
because Fiction is obliged to stick to possibilities; Truth isn’t.”
Mark Twain, Following the Equator 156 (1897).
Put another way, “You
just can’t make this stuff up.”

I.

The Central, But Absent, Figure: John Gill
Although he is not a party to this action, John Gill is at

the

center

of

this

“strange

but

true”

story.

John

Gill

accumulated a considerable rental property portfolio, which he
actively managed.

Apparently motivated, at least in part, by

aggressive tax planning considerations, John Gill took a vow of
poverty and transferred all of his property to the Ten Talents
Ministry

of

Lymphology.

the

Order

The

of

the

International

legal

documents,

Academy
designed

presumably

of
to

separate him from his assets for tax purposes but leave him in
control of them for all practical purposes, are at best unduly
complicated and at worst incomprehensible.

Each rental property

was placed into a single asset property trust, and the sole
beneficiary of all the single asset property trusts is the Gill
Family Cornerstone Trust (“Cornerstone Trust”).

Although John

Gill transferred legal title to the property, he continued to
manage the rental properties and the trusts as a missionary and
minister

of

the

Healing

Academy of Lymphology.

Water

Ministry

of

the

International

He was assisted by representatives of

his ministry and other real estate managers, but

it appears

clear that John Gill had complete control over the trusts and
real estate until he ran into trouble with the law and fled the
country shortly before he was supposed to report to prison in
2009.

Although John Gill attempted to manage the trusts and

2

real estate as a fugitive, his continued absence created a void
and,

perhaps

for

some,

an

opportunity.

Now

his

children,

brothers, and former business associates fight for control of
the trusts.
II.

The Parties and Claims
The Plaintiffs are John Gill’s children, Lauren Gill and

K.G., a minor.

K.G.’s claims are asserted by her mother and

John Gill’s former wife, Karen Gill.
against

John

manage

Gill’s

the

entities

rental

with

former

business

properties

which

they

and

are

Plaintiffs asserted claims
associates
trusts

and

affiliated.

who
the

These

presently
business
Defendants

include Kevin Hartshorn, Daniel Van Gasken, Jay Nichols, Eastern
Property Development, LLC, South East Enterprises Group, LLC,
EPD 1 Holding Trust, EPD 2 Holding Trust, SEE Holding Trust, The
Church of Compassionate Service, and The Compassionate Order of
Service

of

The

Defendants”).

Church

of

initial

Hartshorn
Plaintiffs.

Service

(“Hartshorn

Plaintiffs maintain that they are beneficiaries

of the Cornerstone Trust
Their

Compassionate

complaint

Defendants

and that the trust is irrevocable.
also

included

violated

their

allegations

that

the

fiduciary

duty

to

Those breach of fiduciary duty claims against the

Hartshorn Defendants were subsequently settled.
Plaintiffs also named Loren Gill, who is John’s brother,
and Elm Leasing, LLC, a company controlled by Loren Gill, (“Gill

3

Defendants”) as Defendants because Loren Gill has asserted that
he has legal authority to control the trusts, and he disputes
that

the

Cornerstone

Trust

is

irrevocable.

Plaintiffs

also

assert claims against the Gill Defendants based on Plaintiffs’
contention

that

the

properties

owned

by

Elm

Leasing

were

purchased with money that was impermissibly diverted from the
Cornerstone Trust and the trusts that benefit it.

The Gill

Defendants have a cross-claim against the Hartshorn Defendants
regarding rental proceeds collected by the Hartshorn Defendants
that allegedly should have been paid to Elm Leasing.

Defendant

Daniel Van Gasken has a cross-claim against the Gill Defendants
on behalf of the single asset property trusts that allegedly
loaned money to Elm Leasing so that Elm Leasing could purchase
its rental properties.
Finally, Michael Gill, Steve Thomas, and Wallace Whitten
have intervened as Plaintiffs (“Intervenors”).

They claim that

they should control the various real estate trusts.
Gill is John Gill’s brother.

Michael

Thomas and Whitten are John Gill’s

former business associates.
III. The Summary Judgment Motions
Three
pending.

partial
These

summary

motions

Cornerstone Trust.
document

presents

judgment

require

the

motions
Court

to

are

presently

interpret

the

Generally, interpretation of such a legal
a

legal

question

4

for

the

Court.

Rose

v.

Waldrip, 316 Ga. App. 812, 815, 730 S.E.2d 529, 533 (2012).

And

if there are no ambiguities to be resolved by the jury, summary
judgment would be appropriate.

See id. (noting that “if the

language is plain and unambiguous and the intent is clear, the
court need look no further”).
trust

agreement

is

If a material provision of the

susceptible

one

reasonable

construction,

however,

appropriate.

Ovrevik v. Ovrevik, 254 Ga. App. 756, 758, 564

S.E.2d

(2002).

then

applies

than

after

11

Court

more

interpretation

8,

the

to

summary

Similarly,

for

traditional
judgment

other

rules

of

not

be

may

issues,

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
P. 56(a).
fact

to

judgment

as

a

matter

of

law.”

Fed.

R.

Civ.

In determining whether a genuine dispute of material

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.
Plaintiffs

move

for

partial

summary

Id.
judgment

seeking

a

construction of the Cornerstone Trust that would establish that

5

they

are

beneficiaries

irrevocable.

of

the

trust

and

that

the

is

As discussed below, that motion (ECF No. 104) is

granted to the extent set forth in this Order.
Defendants

trust

move

for

partial

summary

judgment

The Hartshorn
on

the

trust-

related cross-claims of Loren Gill and the trust-related claims
of Whitten.

As discussed below, that motion (ECF No. 106) is

granted in part and denied in part.
for

partial

summary

judgment

related to Elm Leasing.

on

The Gill Defendants move

the

claims

and

cross-claims

For the reasons set forth below, that

motion (ECF No. 105) is denied.
A.

Plaintiffs’ Summary Judgment Motion (ECF No. 104)

Plaintiffs seek a declaration by the Court that they are
beneficiaries of the Cornerstone Trust and that the Cornerstone
Trust is an irrevocable trust.

They contend that the language

of the Cornerstone Trust unambiguously supports their position,
and that these issues can therefore be decided as a matter of
law.
is

The Hartshorn Defendants agree that the Cornerstone Trust

irrevocable

and

Cornerstone Trust.2

that

Plaintiffs

are

beneficiaries

of

the

The Gill Defendants and Intervenors argue

that John Gill was the sole beneficiary of the Cornerstone Trust
and that as the settlor and sole beneficiary of the trust, he
could revoke the trust, which they claim he did.
2

They oppose

Plaintiffs initially pursued breach of trust claims against the
Hartshorn Defendants and sought summary judgment on those claims.
Plaintiffs settled all of their claims with the Hartshorn Defendants
and withdrew that portion of their summary judgment motion.

6

Plaintiff’s motion for summary judgment, claiming that genuine
fact disputes exist on this issue.
The

fundamental

issues

presented

by

Plaintiffs’

summary

judgment motion are whether the Cornerstone Trust is irrevocable
and whether Plaintiffs are beneficiaries under the Trust.
cardinal

rule

in

construing

a

trust

instrument

“The

involves

discerning the intent of the settlor and [effectuating] that
intent within the language used and within what the law will
permit.”
S.E.2d

SunTrust Bank v. Merritt, 272 Ga. App. 485, 488, 612
818,

821

(2005)

(alteration

quotation marks omitted).

in

original)

(internal

The starting point, and in this case

the ending point, for determining whether the Cornerstone Trust
is

irrevocable

and

who

the

beneficiaries

are

is

the

actual

language of the Cornerstone Trust.
John Gill settled the Cornerstone Trust.

Hartshorn Defs.’

1st Mot. for Summ. J. Ex. A, Decl. of Trust for Gill Family
Cornerstone Trust (“Cornerstone Trust Decl.”) at 2, ECF No. 603.3

The Cornerstone Trust Declaration is dated April 1, 1999,

but it was not signed until June 18, 1999.

Id. at 2, 22.

The

Cornerstone Trust Declaration names Kevin Hartshorn as trustee.
Id. at 3.

The Cornerstone Trust states in at least ten places

that it is “irrevocable.”

See, e.g., id. at 4 ¶ 2.1 (“The

3

The Cornerstone Trust Declaration does not contain page numbers. For
the sake of simplicity, the Court refers to the page numbers of the
electronic version of the Cornerstone Trust, which is in the present
record at ECF No. 60-3.

7

Declaration of Trust creates an irrevocable fiscal and estate
planning Foundation/Cornerstone Trust . . . .
purpose

or

irrevocable

reason

for

. . . .”);

existence,
id.

at

and,

4

¶

The trust has a

upon

2.3

execution,

(“The

Gill

is

Family

Cornerstone Trust is formed to irrevocably accept and distribute
assets in various forms . . . .”); id. at 4 ¶ 4.1 (“The Trustor
creates this Voluntary Pure Constitutional Trust and irrevocably
transfers

to

Trustees

the

property

described

on

Exhibit

‘A’

. . . .”); id. at 5 ¶ 6.1 (“The purport of the Gill Family
Cornerstone

Trust

property/assets

to

instrument
Trustee

is

to

irrevocably

management

which

convey

creates

or

constitutes a Trust estate for the benefit of the holders of
Units of Beneficial Interest (UBIs) . . . .”).
No

one

seriously

disputes

that

the

language

in

the

Cornerstone Trust Declaration clearly establishes that the Trust
is irrevocable.
irrevocable.

It states in at least ten places that it is

Under Georgia law, “[a]

settlor shall have no

power to modify or revoke a trust in the absence of an express
reservation of such power.”
side

pointed

to

any

O.C.G.A. § 53-12-40(a).

provision

in

the

Cornerstone

Neither
Trust

Declaration establishing that John Gill expressly reserved the
power to modify or revoke the trust.

Therefore, the unambiguous

language in the Cornerstone Trust Declaration establishes that
the Cornerstone Trust is irrevocable.

8

Intervenors and The Gill Defendants nonetheless argue that
John Gill was the sole beneficiary of the Cornerstone Trust and
that he therefore retained the power to modify or terminate the
trust.

A

settlor

who

is

a

trust’s

sole

beneficiary

may

terminate the trust despite language stating that the trust is
irrevocable.

Cooper v. Trust Co. Bank, 257 Ga. 272, 272, 357

S.E.2d 582, 582 (1987).

Obviously, if the settlor manifests an

intention to give a beneficial interest in the trust property to
someone else, then he is not the sole beneficiary.
The Gill Defendants and Intervenors ignore the following
language of the Cornerstone Trust Declaration:

“The Trustor

[John Gill] will have no retained interest in the Gill Family
Cornerstone Trust nor its assets, but does convey managerial and
fiduciary powers to the Trustees.”

Cornerstone Trust 4 ¶ 2.2.

This language directly contradicts their position that John Gill
was the sole beneficiary of the Trust.
ignore
specify

the

provisions

the

of

the

beneficiaries

Trust

of

the

Moreover, they also

Declaration
Cornerstone

that

clearly

Trust.

The

Cornerstone Trust Declaration specifies the following classes of
beneficiaries: (1) “Any/all natural and/or adopted children and
grandchildren of the Trustor as a class of beneficiaries,” (2)
“The Healing Water Ministries Integrated Auxiliary of the Order
of

the

IAL,”

and

(3)

“any

other

9

charitable

Trusts

or

other

organizations as established by the Trustees of this entity for
purposes of beneficial distribution.”

Id. at 9 ¶ 12.1.

The Intervenors and Gill Defendants argue that one can only
become an actual beneficiary of the Trust through the issuance
of “Units of Beneficial Interest” (“UBIs”).

The Cornerstone

Trust Declaration states that the trustee will hold the Trust
property

“for

the

benefit

of

the

Beneficiaries

who

hold

or

lawfully acquire shares (Units of Beneficial Interest or UBIs)
of beneficial interest in the Trust as noted by the Trustees.”
Id. at 4 ¶ 4.1; see also id. at 5 ¶ 6.1 (“The Trust estate [is]
for the benefit of the holders of Units of Beneficial Interest
(UBIs),

held

in

joint

tenancy

Trust,

with

distributions

Trustees to be under a sprinkling provision.”).

by

The Cornerstone

Trust Declaration also states, “Trustor distributes the UBIs to
the

Beneficiaries

as

witnessed

by

the

Trustees.

Upon

distribution of the UBIs, the Trustor retains no reversionary,
possessory or retained interest in the valuable assets/corpus
conveyed into the Trust for management by the Trustees.”
4

¶

4.1.

Therefore,

John

Gill

did

seek

to

Id. at
control

“distributions” to beneficiaries through the issuance of UBIs.
But the language of the Trust also clearly establishes that all
of the UBIs were conveyed to the three classes of beneficiaries
jointly when the Trust was established.
(“100%

of

UBIs

conveyed

to

the

10

See id. at 9 ¶ 12.1

Beneficiaries

as

classes

of

Beneficiaries.)

It then became the duty of the trustees, in

their discretion as guided by the purposes of the trust, to
determine how distributions should be made.

Id. at 11 ¶ 12.12.

The Court finds that the language of the Cornerstone Trust
Declaration clearly establishes three classes of beneficiaries,
that John Gill’s children are included as beneficiaries, that
the language in the Trust regarding UBIs and the distribution of
Trust

assets

does

not

eliminate

John

Gill’s

children

as

beneficiaries, and that the Cornerstone Trust is irrevocable.
The fact that John Gill may have operated the Trust in a manner
that was inconsistent with the requirements of the Trust does
not amend the provisions of the Trust.4

Moreover, as explained

in the following discussion, the Court is not persuaded by the
arguments of Intervenors and the Gill Defendants that a “Trust
Beneficiary Certificate” purportedly signed by John Gill and a

4

A superficial review of the Trust Declaration and the subsequent
conduct of John Gill and the Trustees could support the conclusion
that ambiguities exist as to John Gill’s intent in establishing the
Cornerstone Trust.
But if those facts are construed in the manner
that the Intervenors and the Gill Defendants suggest, they would also
support the conclusion that John Gill never intended to create a
legitimate trust where he truly conveyed his assets to a separate
trust entity. In its interpretation of the Trust and consideration of
the facts, the Court must interpret those provisions and facts in a
manner that will make the trust agreement enforceable and legitimate,
if possible. See Ovrevik v. Ovrevik, 242 Ga. App. 95, 97, 527 S.E.2d
586, 588 (2000) (“In construing an express trust, we look first and
foremost to the language therein and interpret that language to
effectuate the intent of the settlors. We turn to parol evidence only
if the trust instrument is ambiguous[.]”) (citation omitted).

11

“Letter of Direction” create a genuine factual dispute as to
whether John Gill was the sole beneficiary.
Intervenors
UBIs

were

and

issued

the
to

Gill

the

Defendants

Healing

contend

Water

that

Ministry

ninety
of

the

International Academy of Lymphology and that no other UBIs were
issued.

Given the Cornerstone Trust’s statement that the trust

is

the

“for

benefit

of

the

holders

of

Units

of

Beneficial

Interest (UBIs),” Cornerstone Trust Decl. 5 ¶ 6.1, Intervenors
and the Gill Defendants assert that the Healing Water Ministry
of the International Academy of Lymphology, whose minister is
John Gill, is the only beneficiary entitled to distributions
from the Cornerstone Trust.
In

support

of

their

assertion

that

the

Healing

Water

Ministry of the International Academy of Lymphology was issued
ninety

UBIs,

Intervenors

and

the

Gill

Defendants

rely

on

a

“Trust Beneficiary Certificate” purportedly signed by John Gill
and two witnesses.

Gill Defs.’ Resp. to Pls.’ 2d Mot. for

Partial Summ. J. Ex. C, Trust Beneficiary Certificate, ECF No.
122-3.

Plaintiffs object to the Trust Beneficiary Certificate

because Intervenors and the Gill Defendants did not point to any
evidence

to

authenticate

it.

“A

party

may

object

that

the

material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.”
P. 56(c)(2).

Fed. R. Civ.

“To satisfy the requirement of authenticating or

12

identifying

an

item

of

evidence,

the

proponent

must

produce

evidence sufficient to support a finding that the item is what
the proponent claims it is.”

Fed. R. Evid. 901(a).

Neither

Intervenors nor the Gill Defendants pointed to any evidence to
establish the authenticity of the Trust Beneficiary Certificate.
The Court thus cannot consider the certificate.
admissible

evidence

establishing

that

UBIs

There is no
were

issued

exclusively to the Healing Water Ministry of the International
Academy of Lymphology.
Moreover,

this

inadmissible

evidence

is

clearly

contradicted by the Cornerstone Trust Declaration, which states,
“Trustor distributes the UBIs to the Beneficiaries as witnessed
by

the

Trustees.”

Cornerstone

Trust

Decl.

4

¶

4.1.

The

Trustee’s minutes state that Hartshorn as Trustee recognizes the
conveyance of assets to the Cornerstone Trust “and that said
assets are hereby irrevocably accepted by said Trustee . . . in
the

best

interest(s)

of

the

Beneficiaries,

therein

defined.”

Gill Defs.’ Resp. to Pls.’ 2d Mot. for Partial Summ. J. Ex. A at
40, Trustee’s Minutes, ECF No. 122-1.
Certificate

submitted

beneficiaries

named

by
in

Plaintiff
the

The minutes and the Trust
both

Cornerstone

establish
Trust

that

the

Declaration—

including John Gill’s children—“are the joint holders of the
total One Hundred (100) Units of Beneficial Interest (UBIs)” in
the Cornerstone Trust.

Pls.’ Reply in Supp. of Pls.’ Mot. for

13

Summ. J. Ex. 1, Trust Certificate, ECF No. 144; accord Trustee’s
Minutes.5

The Trust also provides that after UBIs are issued to

beneficiaries, they cannot be transferred without approval by
the Trustees, Cornerstone Trust Decl. 10 ¶ 12.2b), and there is
no evidence that the attempted transfer of ninety UBIs to the
Healing

Water

Ministry

of

the

Lymphology was ever approved.

International

Academy

of

For all of these reasons, the

Trust Beneficiary Certificate cannot establish that John Gill
was the sole beneficiary of the Cornerstone Trust.6
The Gill Defendants and Intervenors also rely on a “Letter
of Direction” dated June 18, 1999.

Gill Defs.’ Resp. to Pls.’

2d Mot. for Partial Summ. J. Ex. B, Letter of Direction, ECF No.
122-2.

The Letter of Direction purports to be from John Gill to

Kevin Hartshorn, although John Gill did not sign the letter.
The Letter of Direction states that it is “direction(s) to the
Executive

Trustee

from

the

Trustor.”

Id.

The

Letter

of

Direction further states that the Cornerstone Trust “shall have
only

one

(1)

beneficiary

at

this

5

time

even

though

the

Gill

The Court rejects the authenticity challenge to the Trust Certificate
submitted by Plaintiffs. Kevin Hartshorn signed the certificate, and
it is consistent with his position that the Cornerstone Trust is
irrevocable and that Plaintiffs are beneficiaries of the Cornerstone
Trust.
6
Intervenors and the Gill Defendants’ argument also requires the Court
to find that the Healing Water Ministry of the International Academy
of Lymphology, which was listed in the Trust Declaration as a trust
beneficiary, and John Gill, who was not listed as a beneficiary, are
one and the same.
While this may be how John Gill and the trustees
operated the trust as a practical matter, it conflicts with the actual
language in the Trust Declaration.

14

Family

Cornerstone

beneficiaries.”

Trust

Id.

provides

for

three

(3)

classes

of

The letter instructs the trustees of all

the trusts that benefit the Cornerstone Trust that they should
“bypass Gill Family Cornerstone Trust and distribute monthly all
their cash directly to the Healing Water Ministry, Integrated
Auxiliary Chapter of the International Academy of Lymphology,”
whose

“assigned

Minister”

was

John

Gill.

Id.

The

letter

further states that it “shall stand as clarification for the
term other charities or charitable trusts” in paragraph 12.1 of
the

Cornerstone

assignments

and

Cornerstone

Trust:

Trust

must

and

all

funded

trusts

“any

buy

[sic]

be

Ministry IAC of the IAL.

a

future

subordinate

the
to

charitable
Gill

Family

Healing

Water

This is a private Ministry and No

charities’ [sic] outside the IAL shall ever be funded.”

Id.

Finally, the letter states that John Gill’s children “are not
beneficiaries

at

this

time

but

are

listed

as

a

class

of

beneficiaries and they will become eligible beneficiaries upon
their thirty second birthday.”

Id.

There is a fact dispute regarding the authenticity of the
Letter of Direction.

The Gill Defendants assert that Loren Gill

saw John Gill type the Letter of Direction and witnessed Kevin
Hartshorn initial it.

Loren Gill Dep. 21:15-24:4, ECF No. 64.

Plaintiffs and the Hartshorn Defendants contend that the letter
is

a

fake;

Hartshorn

testified

15

that

he

did

not

initial

the

document

and

did

not

see

it

until

this

litigation

began.

Hartshorn Dep. vol. IV 754:9-756:4, ECF No. 71.
Even assuming that the Letter of Direction is authentic for
purposes of the present motions, the Letter does not change the
Court’s

interpretation

of

the

Cornerstone

Trust.

The

Gill

Defendants contend that the Court may consider the Letter of
Direction as parol evidence that clarifies ambiguities in the
Cornerstone Trust.
is

at

issue,

“When the construction of an express trust

the

court

circumstances

surrounding

execution

the

may

of

ambiguities,

both

trust

the
and

latent

hear

parol

settlor
parol

and

at

evidence
the

evidence

patent.”

to

of

the

of

the

explain

all

time

O.C.G.A. §

53-12-27;

accord O.C.G.A. § 24-3-3 (stating that “(a) All contemporaneous
writings shall be admissible to explain each other” and that
“(b)

Parol

evidence

ambiguities,

both

contemporaneous

shall
latent

evidence

be

admissible

and

patent”).

shall

be

to

explain
But

generally

all

“[p]arol

inadmissible

to

contradict or vary the terms of a valid written instrument.”
O.C.G.A. § 24-3-1.
Intervenors and the Gill Defendants argue that the Letter
of

Direction

merely

“clarifies”

the

Cornerstone

Trust

Declaration and can therefore be considered as parol evidence of
the settlor’s intent.
“clarify”

the

But the Letter of Direction does not

Cornerstone

Trust

16

Declaration.

It

directly

conflicts
Cornerstone

with

the

Trust

Cornerstone

declaration

Trust

provides

Declaration.
for

three

The

classes

of

beneficiaries: (1) “Any/all natural and/or adopted children and
grandchildren of the Trustor,” (2) “The Healing Water Ministries
Integrated Auxiliary of the Order of the IAL,” and (3) “any
other charitable Trusts or other organizations as established by
the

Trustees

distribution.”

of

this

entity

for

purposes

Cornerstone Trust Decl. 9 ¶ 12.1.

of

beneficial

The Letter of

Direction, on the other hand, states that the Cornerstone Trust
“shall have only one (1) beneficiary at this time even though
[it] provides for three (3) classes of beneficiaries.”

Letter

of Direction.
Because the Letter of Direction seeks to modify a material
term of the Cornerstone Trust, the Court must determine whether
the unsigned Letter of Direction has any effect.

Even if the

Court assumed that John Gill expressly reserved the right to
modify the Cornerstone Trust Declaration (which he did not), the
Letter of Direction does not comply with O.C.G.A. § 53-12-40(c),
which

requires

that

“[a]ny

revocation

or

modification

of

an

express trust shall be in writing and signed by the settlor.”
John Gill did not sign the Letter of Direction, and there is no
evidence that Kevin Hartshorn was acting as John Gill’s agent
acting

under

a

power

of

attorney

17

containing

express

authorization when he allegedly initialed it.

The Letter of

Direction thus does not modify the Cornerstone Trust.
In

summary,

the

Cornerstone

Trust

Declaration

clearly

manifests John Gill’s intention to give a beneficial interest in
the trust property to his children.

The admissible evidence in

the present record does not create a genuine factual dispute as
to whether John Gill is the sole beneficiary of the Cornerstone
Trust, whether he retained the right to modify the Cornerstone
Trust, or whether he validly modified the Cornerstone Trust.
There is also no admissible evidence John Gill issued UBIs in
the Cornerstone Trust exclusively to the Healing Water Ministry
of

the

International

Academy

evidence

in

the

classes

of

beneficiaries

Cornerstone Trust.
Trust

is

present

of

record

Lymphology.
establishes

jointly

hold

the

Rather,
that

all

UBIs

in

the
three
the

For all of these reasons, the Cornerstone

irrevocable,

and

the

beneficiaries

are

the

three

classes of beneficiaries listed in ¶ 12.1 of the Cornerstone
Trust Declaration.7

7

Plaintiffs also seek a declaration regarding the phrase “any other
charitable Trusts or other organizations.” Cornerstone Trust Decl. 9
¶ 12.1. Based on the present record, there does not appear to be an
actual controversy between the parties on this issue.
Although the
parties disagree about the meaning of the phrase, the disagreement is
purely academic at this time because the only “other organization”
named by the Cornerstone Trust’s trustee as a separate class for
beneficial distribution is the Church of Compassionate Service, which
the Hartshorn Defendants assert is a charitable organization.
Given
the absence of an actual controversy regarding the phrase, the Court
finds no reason to construe it.

18

B.

Hartshorn Defendants’ Summary Judgment Motion (ECF No.
106)

Loren Gill filed several cross-claims against the Hartshorn
Defendants that are related to the Cornerstone Trust and trusts
that benefit the Cornerstone Trust.

Although Michael Gill and

Wallace Whitten had not been joined as parties when Loren Gill
filed his cross-claims, they joined the cross-claims and were
later permitted to file an intervenor complaint alleging similar
claims

against

Defendants

seek

the

Hartshorn

summary

Defendants.

judgment

on

(1)

The

Loren

Hartshorn

Gill’s

cross-

claims predicated on his claimed status as “trust protector” of
the Cornerstone Trust, (2) Loren Gill’s cross-claims predicated
on his claimed status as trustee of the real estate holding
trusts, and (3) Whitten’s cross-claims predicated on his status
as

a

trustee

holding

of

trusts.

the

Cornerstone

The

Hartshorn

Trust

and

Defendants

the
did

real

not

estate

move

for

summary judgment on Michael Gill’s claims.
1.

Loren Gill’s Cross-Claims

The Court previously ruled that Loren Gill is not the trust
protector of the Cornerstone Trust and is not a trustee on any
of the real estate holding trusts.

Gill v. Hartshorn, No. 4:12-

CV-77 (CDL), 2013 WL 2406554, at *3-*4 (M.D. Ga. May 31, 2013).
Loren Gill did not seek reconsideration of the Court’s previous
rulings and does not appear to do so now.

19

The Court therefore

grants the Hartshorn Defendants’ summary judgment motion as to
Loren

Gill’s

cross-claims

brought

as

trust

protector

of

the

Cornerstone Trust and trustee of the real estate holding trusts.
In response to the Hartshorn Defendants’ summary judgment
motion, Loren Gill asserted that he has standing to bring his
cross-claims as a trustee of certain business holding trusts.
The Hartshorn Defendants did not move for summary judgment as to
cross-claims

Loren

Gill

brought

as

trustee

of

the

business

holding trusts, and those cross-claims were clearly raised in
the Answer & Cross-Claim of Loren Gill and Elm Leasing, LLC (ECF
No. 31).

In their reply brief, the Hartshorn Defendants for the

first time questioned whether Loren Gill may pursue his crossclaims based on his undisputed status as a trustee on certain
business

holding

trusts.

The

Court

“do[es]

not

consider

arguments raised for the first time in a reply brief,” so this
issue is not properly before the Court.

Wetherbee v. S. Co.,

423 F. App’x 933, 934 (11th Cir. 2011) (per curiam).
Loren
Defendants’
bring

his

Cornerstone

Gill

also

summary

argues

judgment

cross-claims
Trust.

in

motion

because

This

is

response

he

the

that
is

first

a

to
he

the

has

Hartshorn

standing

beneficiary
time

Loren

to

of

the

Gill

has

asserted that he is a beneficiary of the Cornerstone Trust, and
he did not predicate any of his cross-claims on his alleged
beneficiary

status.

See

Answer

20

&

Cross-Cl.

of

Gill

Defs.,

Whitten & Michael Gill 20 ¶¶ 2-3, ECF No. 31.

The Court will

not permit Loren Gill to amend his cross-claims through argument
in a brief opposing summary judgment.
not

point

to

any

admissible

Moreover, Loren Gill did

evidence

beneficiary of the Cornerstone Trust.

that

he

actually

is

a

Rather, he pointed to an

unauthenticated “Assignment” certificate which states that Loren
Gill

is

an

Integrated

associate

Auxiliary

minister

Chapter

of

of
the

“Ten

Talents

International

Ministry

Academy

of

Life” and “Healing Water Ministry Integrated Auxiliary Chapter
of the International Academy of Life.”

Gill Defs.’ Resp. to

Hartshorn Defs.’ Mot. for Partial Summ. J. Ex. A, Assignment
Certificate 2-3, ECF No. 120-1.

The Hartshorn Defendants object

to the certificate because the Gill Defendants did not point to
any evidence to authenticate it.

And, even if the document had

been authenticated and could be considered, the Gill Defendants
pointed

to

no

evidence

that

Integrated

Auxiliary

Chapter

Life”

the

as

is

International
states

that

same
Academy

Loren

of

Gill

the

the

of

the

Healing

“Healing

International
Water

Lymphology.8
was

Water

appointed

for

Academy

Ministry

Also,

the
a

Ministry

of

of
the

certificate

one-year

term

beginning in October of 2011, but there is no evidence that
Loren Gill’s term was renewed or extended.
8

Id. at 2-3.

For all

Intervenors allege that the two entities are the same, Intervenor
Compl. 3 ¶ 14, ECF No. 82, but they did not point to any evidence to
prove it.

21

of these reasons, Loren Gill cannot pursue his cross-claims as a
beneficiary of the Cornerstone Trust.
2.

Whitten’s Cross-Claims

The Court previously ruled that Whitten is not a trustee of
any of the real estate holding trusts.
at *4.

Gill, 2013 WL 2406554,

Whitten did not seek reconsideration of the Court’s

previous ruling and does not appear to do so now.
therefore

grants

the

Hartshorn

Defendants’

The Court

summary

judgment

motion on Whitten’s cross-claims brought as trustee of the real
estate holding trusts.
Turning
trustee

of

to
the

Whitten’s

cross-claims

Cornerstone

Trust,

in

Whitten

his

capacity

initially

as

asserted

that he did “not serve as a trustee of the Cornerstone Trust.”
Answer & Cross-Cl. of Gill Defs., Whitten & Michael Gill 20 ¶ 4.
Whitten also stated in a 2011 declaration offered in a related
case

that

he

was

not

a

trustee

of

the

Cornerstone

Trust.

Whitten Decl. ¶ 5, ECF No. 9 in E. Prop. Dev., LLC v. Gill,
4:11-CV-62.

Whitten has, however, asserted that he is a trustee

of the Cornerstone Trust since late 2012, when he filed his
Motion

to

Intervene.

Mot.

to

Intervene

¶

1,

ECF

No.

50.

Specifically, Whitten contends that he was appointed as trustee
of the Cornerstone Trust in 2005 or 2006.
Decl. 1, ECF No. 50-2;

accord

Id. Ex. B, Whitten

Intervenor Resp. to Hartshorn

Defs.’ Mot. for Partial Summ. J. Ex. A, 2d Thomas Decl. 1, ECF

22

No. 115 at 8.

Whitten further asserts that in 2010, Daniel Van

Gasken deceived Whitten into believing that he had been removed
as a trustee of the Cornerstone Trust even though he was never
actually removed.

Whitten

Decl.

2.

Whitten

discovered the

deception in 2012 when Intervenor Steve Thomas contacted Whitten
to tell him that he had not been removed as a trustee of the
Cornerstone Trust.

Id.

The Hartshorn Defendants acknowledge that the Court may not
disregard self-serving testimony in determining whether genuine
fact disputes exist for trial.

See, e.g., Newsome v. Chatham

Cnty. Detention Ctr., 256 F. App’x 342, 346 (11th Cir. 2007)
(per

curiam).

They

contend,

however,

that

Whitten’s

2012

declaration should be disregarded as a sham.

The general rule

is

affidavit

that

“a

district

court

may

find

an

which

contradicts testimony on deposition a sham when the party merely
contradicts
explanation.”

its

prior

testimony

without

giving

any

valid

Van T. Junkins & Assocs., Inc. v. U.S. Indus.,

Inc., 736 F.2d 656, 656 (11th Cir. 1984).

Here, Whitten’s 2012

declaration contradicts his 2011 declaration, but Whitten does
offer an explanation: Van Gasken deceived Whitten into believing
that he had been removed as a trustee, and Whitten did not find
out about the deception until after the cross-claim had been
filed.

While a jury may well find that Whitten’s account of the

facts is not credible, that is not the Court’s call to make at

23

the summary judgment stage.

There is a fact dispute as to

whether Whitten is a trustee of the Cornerstone Trust, and the
Hartshorn Defendants’ summary judgment motion as to Whitten’s
claims in that capacity is denied.
In

summary,

the

Court

grants

the

Hartshorn

Defendants’

summary judgment motion as to Loren Gill’s cross-claims brought
as trust protector of the Cornerstone Trust, Loren Gill’s crossclaims brought as trustee of the real estate holding trusts, and
Whitten’s cross-claims brought as trustee of the real estate
holding trusts.

Loren Gill may not pursue any claims as a

beneficiary of the Cornerstone Trust.
The Court denies the Hartshorn Defendants’ summary judgment
motion

as

to

Whitten’s

claims

brought

in

his

capacity

as

a

trustee of the Cornerstone Trust because a genuine fact dispute
exists regarding Whitten’s trustee status.

Loren Gill’s cross-

claims predicated on his status as a trustee of several business
holding

trusts

remain

pending,

as

do

Michael

Gill’s

trust-

related claims against the Hartshorn Defendants.
C.
In

Gill Defendants’ Summary Judgment Motion (ECF No. 105)
addition

to

their

other

disputes regarding Elm Leasing, LLC.

claims,

the

parties

have

The Court previously found

that Loren Gill is the owner of Elm Leasing, which owns several
rental properties in Columbus, Georgia.

E. Prop. Dev. LLC v.

Gill, No. 4:11-CV-62 (CDL), 2012 WL 1424664, at *1 (M.D. Ga.

24

Apr. 24, 2012).

Loren Gill asserts that

Defendants Eastern

Property Development, LLC and South East Enterprise Group, LLC
converted and misappropriated rental proceeds belonging to Elm
Leasing.

Defendant Daniel Van Gasken, a trustee of the single

asset property trusts that benefit the Cornerstone Trust, argues
that funds from the single asset property trusts were used to
purchase and maintain properties owned by Elm Leasing, and he
brought a cross-claim against Elm Leasing asking that the funds
be returned to the single asset property trusts. 9

Plaintiffs

likewise assert several claims based on their contention that
Elm Leasing received funds from the single asset property trusts
that must be returned.

The Gill Defendants moved for partial

summary judgment, asserting that Eastern Property and South East
Enterprise owe Elm Properties $609,747.56 in rental proceeds.
The Gill Defendants also seek summary judgment as to Plaintiffs’
claims and Van Gasken’s cross-claim related to Elm Leasing.
In

opposition

to

the

Gill

Defendants’

summary

judgment

motion, Plaintiffs and Van Gasken relied on the affidavit of
9

Van Gasken brought his cross-claims as trustee of the single asset
trusts. Loren Gill argues that Van Gasken cannot bring any claims as
trustee of the single asset trusts because he was not sued in his
capacity as trustee for a specific trust.
In support of this
argument, Loren Gill cites a case regarding the distinction between a
lawsuit against a government official in his official capacity and a
lawsuit against a government official in his individual capacity. Bd.
of Comm’rs of Glynn Cnty. v. Johnson, 311 Ga. App. 867, 717 S.E.2d 272
(2011).
That case has no application here.
Loren Gill’s breach of
trust claims against Van Gasken are based on Van Gasken’s acts and
omissions as trustee of the single asset trusts. Van Gasken may bring
cross-claims in his capacity as trustee of the single asset trusts.

25

Robert Behar.

Pls.’ Resp. to Gill Defs.’ Mot. for Partial Summ.

J. Attach. 3, Behar Aff., ECF No. 128-3.

The Gill Defendants

contend that the Court must disregard Behar’s affidavit because
his conclusions lack credible support.
public accountant.

Behar Aff. ¶ 2.

Behar is a certified

He reviewed the records of

the Cornerstone Trust and related trusts.

Id. ¶¶ 3-4.

report and affidavit are based on that review.

Behar’s

Gill Defendants

may quarrel with Behar’s interpretation of the records, but that
does not mean that Behar’s conclusions lack credible support.
The Court declines to exclude Behar’s affidavit.
It is undisputed that Elm Leasing owns eight tracts of real
property in Columbus, Georgia.

It is also undisputed that Gill

Companies, LLC managed the properties owned by Elm Leasing until
John Gill fled the country.

After John Gill became a fugitive,

Eastern Property took over management of the rental properties,
including Elm Leasing’s properties.
by Hartshorn.
the

Eastern Property is managed

It is undisputed that Eastern Property managed

properties

owned

by

Elm

Leasing

and

collected

rents

generated by those properties from August 2010 until March 2012.
Based

on

the

present

record,

including

Behar’s

affidavit,

genuine fact disputes exist as to whether Eastern Property has
been

compensated

Therefore,

based

for
on

managing
the

the

present

26

Elm

Leasing

record,

the

properties.
Court

cannot

determine what, if any, rental proceeds must be remitted to
Loren Gill.
There are also significant factual disputes regarding whose
funds were used to purchase the Elm Leasing Properties.

There

is evidence that Loren Gill used funds from his pay-day loan
stores to pay mortgages on Elm Leasing properties.

But there is

also

Elm

evidence

that

the

funds

that

paid

for

the

Leasing

properties were taken from the Cornerstone Trust and the single
asset trusts that benefit the Cornerstone Trust.
5, 15-22.

Behar Aff. ¶¶

Based on the obvious fact disputes in the present

record, Loren Gill is not entitled to summary judgment on his
Elm Leasing claims, and he is not entitled to summary judgment
as to the Elm Leasing claims of Plaintiffs and Van Gasken.
CONCLUSION
For the reasons and to the extent explained in this Order,
Plaintiffs’ Second Motion for Partial Summary Judgment (ECF No.
104) is granted.

The Hartshorn Defendants’ Motion for Partial

Summary Judgment (ECF No. 106) is granted in part and denied in
part.

The Gill Defendants’ Motion for Partial Summary Judgment

(ECF No. 105) is denied.
IT IS SO ORDERED, this 3rd day of January, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

27