GILL et al v. HARTSHORN et al

Filing 331

ORDER denying 317 Motion to Vacate; finding as moot 318 Motion for Sanctions; granting 330 Motion for Leave to File Supplemental Authority. Ordered by US DISTRICT JUDGE CLAY D LAND on 11/10/2015. (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
DANIEL VAN GASKEN,

*

Plaintiff,

*

vs.

*

LOREN GILL and ELM LEASING,
LLC,

*

CASE NO. 4:12-CV-77 (CDL)
*
Defendants.
*
O R D E R
Defendants Loren Gill and Elm Leasing, LLC seek to vacate
the judgment entered against them based on Plaintiff Dan Van
Gasken’s

failure

to

available

to

Gasken

Van

evidence

was

control,

would

disclose

cumulative
likely

prior
to

not

relevant
to

other
have

the

trial.

evidence
made

evidence

any

that

was

Because

that

within

Defendants’

difference

in

the

outcome of the trial, and because there is no evidence that Van
Gasken purposefully withheld the evidence in an attempt to gain
an advantage in the litigation, the Court denies Defendants’
motion to vacate the judgment (ECF No. 317) and for sanctions
(ECF No. 318).
BACKGROUND
A

jury

determined

that

Defendants

unlawfully

took

money

that belonged to Van Gasken in his capacity as the trustee for
multiple trusts that benefitted a trust known as the Gill Family

Cornerstone Trust.

Based on the jury verdict, the Clerk of

Court entered judgment in favor of Van Gasken and against Loren
Gill and Elm Leasing.
Gasken,

as

trustee

One of the central issues was whether Van
for

real

estate

holding

trusts

whose

beneficiary was the Cornerstone Trust, authorized payments of
trust

income

Leasing.

to

pay

for

properties

that

were

titled

to

Elm

It was undisputed that certain properties were titled

to Elm Leasing, that funds from real estate holding trusts were
used to pay for those properties, and that trustee Van Gasken
knew that trust money was used to pay for the properties.
the parties stipulated that Loren Gill owned Elm Leasing.1

And,
Van

Gasken asserted, however, that Loren Gill and his brother John
Gill fraudulently concealed the ownership of Elm Leasing and led
Van Gasken to believe that Elm Leasing was owned by a trust that
benefitted the Cornerstone Trust rather than owned by Loren Gill
personally.

See, e.g., Gill v. Gill, No. 4:12-cv-77 (CDL), 2015

WL 631991, at *6 (M.D. Ga. Feb. 13, 2015).

He also asserted

that he would not have authorized the transfers if he had known
that Loren Gill owned Elm Leasing.

The jury found in favor of

Van Gasken.

1

In a prior action, Loren Gill presented documentary evidence that he
is the sole member of Elm Leasing with all rights of ownership, and
Van Gasken did not present any evidence to rebut it.
E. Prop. Dev.
LLC v. Gill, No. 4:11-CV-62 (CDL), 2012 WL 1424664, at *3 (M.D. Ga.
Apr. 24, 2012).
The Court thus determined that Loren Gill is the
owner of Elm Leasing, LLC. Id. at *3-*4.

2

The

present

dispute

that

is

the

subject

of

Defendants’

motions relates to when Van Gasken knew that Loren Gill was
asserting ownership of Elm Leasing.

Van Gasken asserts that he

did not find out until the 2011 litigation that Loren Gill was
claiming sole ownership of Elm Leasing.2

Defendants contend,

however, that they have now discovered “smoking gun” evidence
proving that Van Gasken knew that Loren Gill was the owner of
Elm

Leasing

before

litigation

began

in

the

summer

of

2011.3

During discovery in a state court action, Van Gasken produced
several

emails

in

response

to

a

request

for

communications

between him and others on various topics:
a.

September 2, 2009 Email.

An attorney wrote that he was

“advised by Mr. VanGasken, that Loren Gill, Member of Elm
Leasing, LLC” would convey certain proceeds to an entity
called Surety Corporation of America. Kunkes Decl. Ex. 4,
Email from Mike Joyner to Jacob Beil (cc: Dan Van Gasken),
Sept. 2, 2009, ECF No. 317-3 at 60.

2

Van Gasken still does not believe that Loren Gill is the sole owner
of Elm Leasing. Rather, he contends that John Gill set up Elm Leasing
so that Loren Gill would be the member manager, with no rights of
ownership. Van Gasken acknowledges, however, that he did not present
any evidence to rebut Loren Gill’s documentary evidence when Loren
Gill moved for summary judgment on the ownership issue in a prior
action.
3
Defendants contend that based on this evidence, it is clear that Van
Gasken’s claims are time-barred and that he authorized the transfers
from the real estate holding trusts despite knowing that Loren Gill
owned Elm Leasing.

3

b.

September

3,

2009

Email.

Van

Gasken

September 2, 2009 Email to Russell.

forwarded

the

Kunkes Decl. Ex. 5,

Email from Dan Van Gasken to [e-mail], Sept.
3, 2009, ECF No. 317-3 at 62.
c.

December 8, 2010 Email.
that

property

Van Gasken sent an email stating

titles

to

certain

properties

Corporations and should go to trusts.”

“are

in

Kunkes Decl. Ex. 6,

Email from Dan Van Gasken to Jay Nicol et al., Dec. 8,
2010,

ECF

“Several

No.

317-3

properties

at
are

(Loren Gill, member).”

64.

The

titled

email

under

further

Elm

states:

Leasing,

LLC

Id., ECF No. 317-3 at 65.

Van Gasken did not produce these emails during discovery in
this case.4

During discovery in this case, Defendants requested

all documents which pertain to or relate to Van Gasken’s claims
in this action.

Van Gasken testified that he did not produce

the emails in response to this request because by the time he
filed

his

conversion

claim

and

received

a

request

for

all

documents related to that claim, the Court had already decided

4

When counsel for Loren Gill and Elm Leasing asked Van Gasken during a
2011 deposition if he had located any documents that had to do with
the ownership of Elm Leasing, Van Gasken answered that he had not.
Defendants contend that this testimony was a deliberate lie.
But at
the hearing on Defendants’ motion to vacate, Van Gasken explained that
he looked for trust documents in his paper files to show ownership of
Elm Leasing. Neither his own counsel nor counsel for Defendants asked
him to do an electronic search of his email on the ownership of Elm
Leasing, so he did not do so prior to the deposition. Based on this
testimony, the Court cannot conclude that Van Gasken lied in response
to the specific question he was asked during the 2011 deposition.

4

as a matter of law that Loren Gill was the sole owner of Elm
Leasing.

Van

Gasken

business

model,

the

also

testified

word

that

“member”

does

under
not

John

mean

Gill’s

“owner.”

Rather, it simply means manager, so emails referring to Loren
Gill as member of Elm Leasing do not establish that Van Gasken
knew

that

Loren

Gill

was

the

sole

owner

of

Elm

Leasing.

Finally, Van Gasken testified that he did not know that Loren
Gill was claiming sole ownership of Elm Leasing until the prior
litigation began in the summer of 2011.
DISCUSSION
Loren Gill and Elm Leasing seek to vacate portions of the
judgment

under

60(b)(3).
I.

Federal

Rule

of

Civil

Procedure

60(b)(2)

and

The Court addresses each issue in turn.

Rule 60(b)(2) Analysis
Under Federal Rule of Civil Procedure 60(b)(2), the Court

may

relieve

a

party

from

a

final

judgment

based

on

“newly

discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule
59(b).”

“For

the

court

to

grant

relief

based

upon

newly

discovered evidence under Rule 60(b)(2), a movant must meet a
five-part test: (1) the evidence must be newly discovered since
the

trial;

(2)

due

diligence

on

the

part

of

the

movant

to

discover the new evidence must be shown; (3) the evidence must
not be merely cumulative or impeaching; (4) the evidence must be

5

material; and (5) the evidence must be such that a new trial
would probably produce a new result.”

Waddell v. Hendry Cty.

Sheriff's Office, 329 F.3d 1300, 1309 (11th Cir. 2003).
Van Gasken does not dispute that the three emails were
newly discovered after the trial, and he does not dispute that
the evidence is material.

Van Gasken argues that Defendants had

within their control evidence similar to the type of evidence
that they now claim warrants the drastic remedy of vacating a
judgment after a jury verdict, and yet they did not use that
evidence during the trial.

That evidence included an email from

Van Gasken to Loren Gill requesting that Gill execute a document
regarding a lease that listed Elm Leasing, LLC as the lessor and
thus owner of the property.

That lease included a signature

line where Loren Gill signed the lease on behalf of Elm Leasing,
LLC as “Member.”

Van Gasken Decl. Ex. P, Email from Dan Van

Gasken to Loren Gill, Apr. 11, 2011, ECF No. 320-1 at 348, 355.
These documents were obviously available to Loren Gill and could
have been produced during the trial and used to impeach Van
Gasken regarding his contention that he did not believe Loren
Gill was the “owner” of Elm Leasing, LLC.
merely cumulative of this evidence.

The other emails were

Defendants maintain that

they were unaware that this email regarding the lease existed at
the time of trial.

But it is clear that it could have easily

been discovered through due diligence.

6

It was sent to Defendant

Loren Gill, and Defendants gave no reason why it could not have
been discovered in his electronic database.

Furthermore, the

lease that listed Loren Gill as the “Member” of Elm Leasing, LLC
related to the most valuable asset to which Elm Leasing held
title.

Certainly, Loren Gill had a copy of that lease.

The Court further finds that a new trial would probably not
produce a new result even if Defendants were able to present the
three emails that they contend Van Gaksen withheld.
contend that the

evidence would likely

Defendants

produce a new result

because (1) the emails foreclose Van Gasken’s argument that the
transactions

were

unauthorized,

and

(2)

the

emails

that Van Gasken’s conversion claim is time-barred.
disagrees on both points.

establish
The Court

First, the emails do not prove that

Van Gasken knew Loren Gill was the sole owner of Elm Leasing.
Rather, they simply establish that he knew Loren Gill was a
member of Elm Leasing, and Van Gasken explained that “member”
does not mean “owner” under John Gill’s business model.

Van

Gasken consistently took the position that he never believed Elm
Leasing, LLC was the owner of the properties that were titled in
the name of Elm Leasing, LLC because he knew that the trusts,
and not Elm Leasing, LLC, provided the funds to purchase those
properties.

He never disputed that Loren Gill was a “member” of

Elm Leasing, but he believed that to mean that Loren Gill simply
acted as a manager for Elm Leasing and that Elm Leasing never

7

had legal title to the properties purchased with trust funds.
Second, the emails do not establish that Van Gasken’s conversion
claim was time-barred.
November 12, 2012.

Van Gasken filed his conversion claim on

The statute of limitations for conversion

claims is four years.

O.C.G.A. § 9-3-32.

Thus, if the emails

established that Van Gasken knew that Loren Gill was the sole
owner of Elm Leasing before November 12, 2008, then they might
produce a new result.

But the emails only establish that Van

Gasken knew in 2009 that Loren Gill was a member of Elm Leasing.
For all of these reasons, the Court finds that Loren Gill and
Elm Leasing are not entitled to relief under Rule 60(b)(2).
II.

Rule 60(b)(3) Analysis
Federal Rule of Civil Procedure 60(b)(3) states that the

Court

may

relieve

a

party

from

a

final

judgment

based

on

“fraud[,] . . . misrepresentation, or misconduct by an opposing
party.”

“One who asserts that an adverse party has obtained a

verdict through fraud, misrepresentation or other misconduct has
the burden of proving the assertion by clear and convincing
evidence.”

Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th

Cir. 1978); accord Cox Nuclear Pharmacy, Inc. v. CTI, Inc., 478
F.3d 1303, 1314 (11th Cir. 2007).

“The conduct complained of

must be such as prevented the losing party from fully and fairly
presenting his case or defense.”

Rozier, 573 F.2d at 1339;

accord

The

Cox,

478

F.3d

at

1314.

8

conduct

must

also

be

intentional, not merely an oversight.

See, e.g., Suite 225,

Inc. v. Lantana Ins. Ltd., No. 14-14545, 2015 WL 5147718, at *5
(11th Cir. Sept. 2, 2015) (per curiam) (affirming grant of Rule
60(b)(3)

motion

where

the

plaintiff

made

intentional

misrepresentations to the defendant and the court).

“Although

Rule 60(b)(3) applies to misconduct in withholding information
called

for

by

discovery[,]

it

does

not

require

that

the

information withheld be of such nature as to alter the result in
the case.”

Rozier, 573 F.2d at 1339 (citation omitted).

Rule

60(b)(3) “is aimed at judgments which were unfairly obtained,
not at those which are factually incorrect.”

Id.

For example, relief under Rule 60(b)(3) was warranted in
Rozier, where the defendant intentionally withheld a trend cost
estimate that was responsive to the plaintiff’s interrogatories
and relevant to the plaintiff’s claims.

Id. at 1341.

And in

Suite 225, relief under Rule 60(b)(3) was warranted because the
plaintiff intentionally withheld documents that were unfavorable
to

his

claim.

however,

the

Suite
Court

225,

is

not

2015

WL

5147718,

convinced

that

at

*5.

Here,

Defendants

have

established by clear and convincing evidence that Van Gasken
engaged in intentional misconduct
the

three

remembered

emails.
sending

There
or

is

by deliberately withholding

no

receiving

purposefully failed to produce them.

9

evidence
the

that

three

Van

Gasken

emails

and

Furthermore, Van Gasken

testified that he did not search his electronic records related
to the ownership of Elm Leasing because the Court had already
decided the issue.

Indeed, by the time Van Gasken filed his

claims and received the discovery requests in this action, the
Court had concluded that Loren Gill was the sole owner of Elm
Leasing.
this

And by trial, the parties entered a stipulation on

point.

Gasken’s
search

For

these

reasons,

a

position

could

conclude

that

his

electronic

records

ownership of Elm Leasing.

for

reasonable
there
evidence

person

was

no

in
need

regarding

Van
to
the

Having heard Van Gasken’s explanation

at the hearing on these motions, the Court cannot conclude that
he

intentionally

withheld

these

emails

gaining an advantage in this litigation.

for

the

purpose

of

Defendants have simply

failed to meet their burden of proving by clear and convincing
evidence that Van Gasken engaged in intentional conduct that
warrants relief under Rule 60(b)(3).5

5

Defendants filed a motion for leave to file supplemental authority
regarding the correct standard under Rule 60(b)(3). That motion (ECF
No. 330) is granted, but it does not change the Court’s conclusion.
In their supplemental brief, Defendants pointed the Court to Simoneaux
v. E.I. du Pont de Nemours & Co., No. CIV.A. 12-219-SDD, 2015 WL
3905069 (M.D. La. June 25, 2015), which emphasized—as Rozier did—that
relief under Rule 60(b)(3) does not require a showing that the outcome
of the trial would have been different if newly discovered evidence
had been produced during discovery.
In Simoneaux, as in Rozier, the
newly
discovered
evidence
was
called
for
in
discovery
but
intentionally withheld by the defendant. Simoneaux, 2015 WL 3905069,
at *4.
In contrast, here, Defendants did not prove by clear and
convincing evidence that Van Gasken engaged in intentional conduct
that warrants relief under Rule 60(b)(3).

10

CONCLUSION
For

the

reasons

set

forth

above,

Defendants’ Motion to Vacate (ECF No. 317).

the

Court

denies

In light of the

Court’s denial of Defendants’ motion to vacate, the Court finds
Defendants’ Motion for Sanctions (ECF No. 318) moot.

IT IS SO ORDERED, this 10th day of November, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

11