GILL et al v. HARTSHORN et al
Filing
177
ORDER denying 162 Motion to Appoint Receiver. Ordered by U.S. District Judge Clay D. Land on 01/09/2014. (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
This
trusts.
action
presents
a
dispute
regarding
a
number
of
Defendants Kevin Hartshorn and Daniel Van Gasken are
trustees of the trusts and are responsible for managing the
trust
assets.
Defendant
Loren
Gill
and
Intervenors
Wallace
Whitten, Steve Thomas, and Michael Gill filed a motion asking
the Court to enjoin Hartshorn and Van Gasken from managing the
trust assets and to appoint a receiver to manage trust assets.
The motion (ECF No. 162) is denied at this time.
The
Court
in
its
discretion
appropriate circumstances.
may
appoint
a
receiver
Nat’l P’ship Inv. Corp. v. Nat’l
Hous. Dev. Corp., 153 F.3d 1289, 1292 (11th Cir. 1998).
receiver
justified
is
in
an
extraordinary
extreme
in
equitable
situations.”
remedy
Aviation
that
Supply
is
“A
only
Corp.
v.
R.S.B.I. Aerospace, Inc., 999 F.2d 314, 316 (8th Cir. 1993).
“A
receivership is only a means to reach some legitimate end sought
through the exercise of the power of a court of equity. It is
not an end in itself.”
Kelleam v. Md. Cas. Co., 312 U.S. 377,
381 (1941) (internal quotation marks omitted).
A court “should
not appoint a receiver where the appointment is not a remedy
auxiliary
equity
to
may
some
primary
appropriately
relief
grant.”
which
Id.
is
sought
and
“[F]actors
which
typically
warranting appointment are a valid claim by the party seeking
the
appointment;
the
probability
that
fraudulent
conduct
has
occurred or will occur to frustrate that claim; imminent danger
that property will be concealed, lost, or diminished in value;
inadequacy of legal remedies; lack of a less drastic equitable
remedy; and likelihood that appointing the receiver will do more
good than harm.
Here,
a
Aviation Supply Corp., 999 F.2d at 316-17.
receivership
is
not
appropriate
at
this
time.
First, the Court previously found that there are genuine fact
disputes as to who the trustees of the various trusts are.
See,
e.g., Gill v. Hartshorn, No. 4:12-cv-77 (CDL), 2014 WL 29450, at
*10 (M.D. Ga. Jan. 3, 2014).
Until those fact disputes are
decided, it is unclear whether Loren Gill and Intervenors even
have standing to seek appointment of a receiver.
Second, it is not clear from the present record that Loren
Gill and Intervenors have valid claims against Hartshorn and Van
Gasken.
In their motion to appoint a receiver, Loren Gill and
Intervenors essentially ask the Court to decide as a matter of
2
law that Hartshorn and Van Gasken committed breaches of trust
and should be removed from their positions immediately.
But the
deadline for dispositive motions is long past, and the Court
declines
to
grant
judgment motion.
what
amounts
to
an
out-of-time
summary
The jury will have to decide whether Hartshorn
and Van Gasken committed breaches of trust, and the Court will
have to decide what remedy is appropriate in light of the jury’s
decision.
Until the factual questions discussed above are resolved,
the
Court
declines
to
enjoin
Hartshorn
and
Van
Gasken
from
managing the trust assets, and the Court finds that it should
not appoint a receiver at this time.
The motion to appoint a
receiver (ECF No. 162) is denied.
IT IS SO ORDERED, this 9th day of January, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
3
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