GILL et al v. HARTSHORN et al
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
LAUREN GILL, et al.,
LOREN GILL, et al.,
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.
Gill and co-defendant Elm Leasing (collectively, “Elm Parties”)
filed a Motion in Limine (ECF No. 255) to exclude the audio
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
The Gill Family Cornerstone Trust is the sole
beneficiary of each single asset property trust.
continued to manage the rental properties and the trusts until
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.
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
The recorded conversation that is the subject of the
pending motion in limine occurred during the pendency of that
The present action arises from activities related to Elm
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.
Van Gasken counter that John Gill and Loren Gill conspired to
Trust assets to Elm Leasing.
The recorded conversation between Van Gasken and Loren Gill
The Plaintiffs and third-party defendant Hartshorn
seek to play several excerpts from the audio recording in the
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
The Elm Parties contend that this evidence is not relevant
evidence is relevant to Plaintiffs’ claims under the federal
Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18
conspired with John Gill to defraud Hartshorn and Van Gasken
property trust assets to Elm Leasing via the mail and wires.
conspiracy existed and what motive Loren Gill had to engage in
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.
The Elm Parties argue that even if the audio recording
excerpts are relevant, the audio recording contains settlement
validity or amount of a disputed claim.”
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).
protects evidence that someone offered “a valuable consideration
in . . . attempting to compromise the claim” or evidence of
about the claim.”
Fed. R. Evid. 408.
But not all evidence that
relates to settlement negotiations is inadmissible.
the evidence is inadmissible if it is to be used for the purpose
of proving or disproving “the validity or amount of a disputed
“The court may admit this evidence for another
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.
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
Either way, no reasonable person could
conclude that Gill and Van Gasken were negotiating a disputed
claim as contemplated by Rule 408.
Even if the audio recording
intend to introduce the recording to establish the validity or
amount of those claims asserted in the earlier action, which
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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