GILL et al v. HARTSHORN et al

Filing 267

ORDER denying 255 Motion in Limine. Ordered by U.S. District Judge CLAY D LAND on 09/05/2014. (CGC)

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

*

Plaintiffs,

*

vs.

*

LOREN GILL, et al.,

*

Defendants.

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

*
*

O R D E R
Plaintiffs and third-party Defendant Kevin Hartshorn intend
to use at trial excerpts of an audio recording of a conversation
between Daniel Van Gasken, one of the Plaintiffs in this action,
and Loren Gill, one of the Defendants in this action.

Loren

Gill and co-defendant Elm Leasing (collectively, “Elm Parties”)
filed a Motion in Limine (ECF No. 255) to exclude the audio
recording excerpts.

As discussed below, that motion is denied.

This action involves trusts that were settled by John Gill.1
John Gill accumulated a considerable rental property portfolio
and

then

placed

property trust.

each

piece

of

property

into

a

single

asset

The Gill Family Cornerstone Trust is the sole

beneficiary of each single asset property trust.

John Gill

continued to manage the rental properties and the trusts until
1

For a more detailed synopsis, see Gill v. Hartshorn, 4:12-CV-77
(CDL), 2014 WL 29450 (M.D. Ga. Jan. 3, 2014).

he became a fugitive in 2009.

Although John Gill attempted to

manage the properties and trusts as a fugitive, it appears that
he was unable to do so.

John Gill’s former business associates

now control the trusts, though John Gill’s brother Loren Gill
has allegedly tried to represent John Gill’s interests.

Loren

Gill’s attempt to interfere with two management companies that
currently manage the Cornerstone Trust rental properties gave
rise to litigation that resulted in a verdict against Loren
Gill.

The recorded conversation that is the subject of the

pending motion in limine occurred during the pendency of that
litigation.
The present action arises from activities related to Elm
Leasing,

which

Georgia.

owns

several

rental

properties

in

Columbus,

Elm Leasing is owned by Loren Gill and was, for a

time, managed by Hartshorn and Van Gasken.

The Elm Parties

claim that Hartshorn and Van Gasken collected rent that was due
to Elm Leasing and did not give it to Loren Gill.

Hartshorn and

Van Gasken counter that John Gill and Loren Gill conspired to
defraud

Hartshorn

and

Van

Gasken

into

diverting

Cornerstone

Trust assets to Elm Leasing.
The recorded conversation between Van Gasken and Loren Gill
took

place

recording.

on

June

29,

2011.

Van

Gasken

consented

to

the

The Plaintiffs and third-party defendant Hartshorn

seek to play several excerpts from the audio recording in the

2

trial of this action.

The excerpts generally relate to the

relationship between Loren Gill and John Gill, the struggles
John Gill faced when he became a fugitive, and John Gill’s plans
for regaining control of the trusts.

The excerpts reveal that

Loren Gill was working with John Gill, that John Gill believed
that Hartshorn and Van Gasken were stealing from him, that Loren
Gill was trying to find a way to get money to John Gill, and
that John Gill instructed Loren Gill to “burn” the company if
Loren Gill could not find another solution, such as convincing
Van Gasken to make Loren Gill a trustee of the single asset
property trusts.
The Elm Parties contend that this evidence is not relevant
to

the

claims

in

this

action.

The

Court

disagrees.

The

evidence is relevant to Plaintiffs’ claims under the federal
Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18
U.S.C.

§§ 1962,

1964.

Plaintiffs

allege

that

Loren

Gill

conspired with John Gill to defraud Hartshorn and Van Gasken
into

diverting

Cornerstone

Trust

assets

and

single

asset

property trust assets to Elm Leasing via the mail and wires.
The

audio

recording

excerpts

are

relevant

as

to

whether

a

conspiracy existed and what motive Loren Gill had to engage in
certain conduct.

Furthermore, the probative value of the audio

recording is not outweighed by unfair prejudice and should not
be excluded under Federal Rule of Evidence 403.

3

The Elm Parties argue that even if the audio recording
excerpts are relevant, the audio recording contains settlement
discussions

that

Evidence

408.

prohibits

the

negotiations

are
The

not
Court

admission
of

a

admissible

claim

rejects

of

under

this

statements

“either

to

Federal

argument.

made

validity or amount of a disputed claim.”

Rule

during

prove

or

Rule

of
408

compromise

disprove

the

Fed. R. Evid. 408.

The Rule is clear that there must be a disputed claim before
Rule 408 applies.

Id.; accord Molinos Valle Del Cibao, C. por

A. v. Lama, 633 F.3d 1330, 1354 (11th Cir. 2011).

The Rule

protects evidence that someone offered “a valuable consideration
in . . . attempting to compromise the claim” or evidence of
“conduct

or

a

statement

about the claim.”

made

during

Fed. R. Evid. 408.

compromise

negotiations

But not all evidence that

relates to settlement negotiations is inadmissible.

Generally,

the evidence is inadmissible if it is to be used for the purpose
of proving or disproving “the validity or amount of a disputed
claim.”
purpose.”

Id.

“The court may admit this evidence for another

Id.

The audio recording here does not contain a negotiation
about a disputed claim for Rule 408 purposes.

On the recording,

Loren Gill asks Van Gasken for something that Loren Gill wants
but does not have—access to the trusts—even though he had no
legitimate claim to such access.

4

In return, Loren Gill offers

not to follow John Gill’s order to “burn down” the businesses by
pursuing frivolous litigation or by other means.

A jury could

conclude that Loren Gill was requesting a favor or that he was
attempting extortion.

Either way, no reasonable person could

conclude that Gill and Van Gasken were negotiating a disputed
claim as contemplated by Rule 408.
did

capture

previous

negotiations

litigation

Even if the audio recording

regarding

involving

a

Loren

disputed

Gill,

claim

in

the

Plaintiffs

do

not

intend to introduce the recording to establish the validity or
amount of those claims asserted in the earlier action, which
have

now

been

fully

and

finally

adjudicated.

Rather,

they

intend to introduce the recording as evidence of Loren Gill’s
cooperation with John Gill.
For all of these reasons, the Elm Parties’ Motion in Limine
(ECF No. 255) is denied.

IT IS SO ORDERED, this 5th day of September, 2014.
s/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

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