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

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