Tindall v. H&S Homes, LLC et al
Filing
322
ORDER VACATING the grant of summary judgment in favor of The N. DudleyHorton Revocable Trust and DENYING IN PART the Trust Defendants Motionfor Summary Judgment. Ordered by Judge C. Ashley Royal on 5/14/12. (lap)
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TERRY CARTRETTE TINDALL,
:
:
Plaintiff,
:
:
v.
:
:
H & S HOMES, LLC, et. al.,
:
:
Defendants.
:
____________________________________
Civil Action
No. 5:10‐CV‐044(CAR)
SECOND ORDER ON MOTION FOR RECONSIDERATION
Currently before the Court are the supplemental briefs filed in response to this
Court’s Order on Plaintiff’s Motion for Reconsideration [Doc. 284]. In her Motion,
Plaintiff contends that this Court erred in granting summary judgment on her civil
conspiracy claims against Defendants “The Maude Hicks Family Trust,” “The N. Dudley
Horton Revocable Trust,” and “The Robert Dudley Horton Trust” (herein “the Trusts”
or “Trust Defendants”). While, in its Order, this Court found no merit in Plaintiff’s
allegations of error, the Court did nonetheless allow Plaintiff to file a supplemental brief
on the issue of whether the Trust Defendants may be held liable for the alleged
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conspiratorial acts of their sole trustee Defendant Dudley Horton. Defendants were
likewise given an opportunity to respond.
As explained in this Court’s prior Orders, a trust will generally not be held liable
for the torts of its trustee unless there is some proof that the trust “actually benefitted
from or was complicit in the conspiracy alleged.” Miller v. Tranakos, 209 Ga. App. 688,
689, 434 S.E.2d 84 (1993) (emphasis added); see also, Burgess v. James, 73 Ga. App. 857,
859, 38 S.E.2d 637 (1946) (“The general rule in Georgia is that [trust] funds will not be
depleted by subjection to liability for the [acts] of a trustee.”). Thus, a trust may be
required to satisfy a trustee’s tort liability only if it is proven that the trust “actually
benefitted from the trustee’s misdeeds or [if] some other equity, such as conspiratorial
knowledge or unjust enrichment,” authorizes an invasion into the trust. Miller, 209 Ga.
App. at 689. “The proof of the trustʹs benefit from or complicity in the wrongful acts
must be more than mere suspicion arising from circumstances including commingling of
funds or other coincidence, and must point to specific culpability or, at least, a
specifically proved unjust enrichment.” Id. (emphasis added).
Thus, in this case, Defendant Dudley Horton’s conduct, even if conspiratorial,
would not automatically implicate the Trusts in the allege conspiracy absent some
evidence that the Trusts benefitted from or were complicit in the conspiracy alleged.
See id. As the Court previously explained, this may be accomplished through evidence
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of either a specific benefit to the Trusts, a use of the Trusts in furtherance of the
conspiracy, or conspiratorial knowledge or culpability of a Trust beneficiary. See id.
In her Supplemental Brief, Plaintiff has now identified additional evidence in an
attempt to create a jury question on the issue of the Trust Defendants’ liability. Plaintiff
shows that Defendant Dudley Horton is the sole trustee and sole beneficiary of The N.
Dudley Horton Revocable Trust and that Defendant Horton made multiple deposits and
two key withdrawals from that Trust. (Pl.’s Supp. Brief at 2, 4‐5, 10). Defendant Horton,
in fact, deposited more than $ 2,000,000.00 into The N. Dudley Horton Revocable Trust
during the period from February of 2005 through November of 2009. (Id.). The Trust
then issued two checks back to Defendant Horton totaling $ 980,000.00 at or near the
time of the mass auction and liquidation of the H&S assets – transactions which are now
being challenged as fraudulent. (Id.). The first check, written for $ 180,000.00, was
issued on December 29, 2006 – just as H&S assets were beginning to be liquidated – and
the second check, written for $ 800,000.00, is dated January 16, 2007 – just one day before
the challenged sale occurred. (Id.). Though there is no evidence showing how this
money was then used by Defendant Horton, it is undisputed that nearly all of the H&S
assets were re‐purchased at the auction by other Horton‐operated companies.
Plaintiff additionally alleges that Defendant Horton, as trustee, had the “ultimate
right and power to control Horton Industries and its subsidiaries” and that the Trusts
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would be “unjustly enriched if they are allowed to retain value in their stock assets
which should be available to the payment of Plaintiff’s judgment.”(Id. at 10).
According to Plaintiff, the “benefit of not paying [her] judgment flowed to the bottom
line of Horton Industries through its consolidated tax return and therefore to its major
shareholders, the Trusts.” (Id. at 6).
The evidence cited by Plaintiff would, therefore, appear to demonstrate possible
conspiratorial knowledge of a Trust beneficiary, use of one of the Trusts in furtherance of
the conspiracy, and evidence of a benefit to the Trusts. However, according to the Trust
Defendants, Plaintiff’s only correct allegations are that Defendant Dudley Horton was
both the sole trustee and sole beneficiary of The N. Dudley Horton Revocable Trust and
that he made various deposits into and two personal withdrawals from that Trust.
Defendants attempt to dispel any suspicion about the purpose of the withdrawals
from The N. Dudley Horton Revocable Trust at or near the time of the auction by
claiming that the transfers were entirely unrelated to the transactions challenged in this
case. In support of this contention, Dudley Horton provides a somewhat vague
declaration that those funds were merely “repayments” of loans he had made to the
Trust N.D. Horton Jr. Trust, i.e., his various deposits into the Trust account between
February 2005 and January 2007. (Supplemt’l Decl. of Dudley Horton [Doc. 309] at 13).
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Defendants also counter Plaintiff’s assumption that the Trusts benefitted
financially from the dismantling of H&S Homes by explaining that there was no actual
tax benefit to the Trusts resulting from tax losses caused by liquidation of H&S Homes
and that the Trusts never received any dividends from Horton Industries. Thus, it
appears that Plaintiff’s only evidence that the Trusts “actually benefitted” from Horton’s
alleged misdeeds arises from the premise that a shareholder generally benefits from the
financial windfalls of the corporation.
This evidence of benefit, standing alone, is not sufficient to establish liability on
either The Maude Hicks Family Trust or The Robert Dudley Horton Trust. Even if
Dudley Horton’s alleged acts allowed Defendants to avoid payment of over
$2,000,000.00 in punitive damage judgments, Plaintiff only generally links this savings to
these trusts, as shareholders of Horton Industries. Thus, in the absence of any other
evidence of a benefit to or culpability on the part of The Maude Hicks Family Trust or
The Robert Dudley Horton Trust, Plaintiff has failed to create a triable issue as to their
liability. For this reason, the Court will not reconsider its grant of summary judgment
in favor of The Maude Hicks Family Trust and The Robert Dudley Horton Trust.
Dudley Horton is not a beneficiary of those trusts, there is no evidence that those trusts
were complicit in the conspiracy, and there is insufficient evidence that those trusts
actually benefitted financially from the alleged fraudulent transactions.
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The Court, however, will reconsider is grant of summary judgment in favor of
The N. Dudley Horton Revocable Trust, for now, as Plaintiff has identified some
evidence of conspiratorial knowledge or other culpability of the Trust’s beneficiary.
Again, Defendant Dudley Horton is both the sole trustee and sole beneficiary of The N.
Dudley Horton Revocable Trust. Therefore, he not only controls Horton Industries but
he also controls and benefits from The N. Dudley Horton Revocable Trust, which in turn
owns nearly half of all the shares of Horton Industries. The financial interests of
Dudley Horton, Horton Industries, and The N. Dudley Horton Revocable Trust are thus
intertwined to some extent. This, combined with the fact Dudley Horton’s alleged acts
may have allowed Defendants to avoid payment of over $ 2,000,000.00 in punitive
damage judgments, may support a jury finding in Plaintiff’s favor.
As Plaintiff has repeatedly pointed out, these facts distinguish the present case
from those circumstances considered in Miller where the trust beneficiaries were not
apprised of the trustee’s investment dealings and were also considered victims of the
trustees’ misdeeds. See 209 Ga. App. at 689. It would be safe to say that neither The N.
Dudley Horton Revocable Trust nor Dudley Horton would be considered victims in this
case. A jury could find that both derived some benefit from the alleged conspiracy, and
unlike the trustee in Miller, Dudley Horton was clearly authorized to act on the behalf of
the Trust in his dealings with Horton Industries. See id.
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The Court also finds the temporal proximity of Dudley Horton’s large
withdrawals from the Trust to be some evidence of conspiratorial knowledge or other
culpability of the Trust. Though Defendant Horton avers that these checks were merely
“partial repayments” of “loans” he previously made to the Trust (and thus unrelated to
the large financial transactions occurring at or near that time), a jury may not be so easily
convinced. Defendants did not offer a copy of the $180,000.00 check into evidence, and
the copy of the check for $800,000.00, which was submitted, does not include any
notation indicating that it was a payment intended to discharge a legal obligation.
Defendant Horton likewise fails to provide any specificity as to the details of the loan
payments or as to which loan the payments were applied, and there are no other
financial records in evidence documenting any loan repayment. Furthermore, it
appears from the evidence submitted that, if these checks were loan repayments, they
were the only such payments ever made during the almost five‐year period from
February 2005 to November 2009. The evidence does not show any similar
withdrawals for nearly two years before or after these checks were written to Dudley
Horton from the Trust account. A jury could thus potentially find that it was more than
mere coincidence that these loan payments were made only at the time of the alleged
fraudulent assets purchases by Defendant Horton’s companies.
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Therefore, when construing all facts in Plaintiff’s favor and in absence of
corroborating evidence supporting Defendant Horton’s declaration, the Court will
consider this matter to be a question for the jury. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (on summary
judgment courts are required to construe facts and all reasonable inferences in light most
favorable to the nonmoving party); see also, Carter v. Univ. of S. Ala. Childrenʹs &
Womenʹs Hosp., 510 F. Supp.2d 596 n 15 (S.D. Ala. 2007) (self‐serving denial of
wrongdoing need not be credited if plaintiffʹs facts support a reasonable inference to the
contrary). Inasmuch, this issue may simply turn on the veracity of Defendant Dudley
Horton as witness, which is of course a matter wholly within the province of the jury.
Lane v. Celotex Corp., 782 F.2d 1526, 1528 (11th Cir. 1986).
Thus, while Plaintiff’s evidence does not undisputedly establish that The N.
Dudley Horton Revocable Trust “actually benefitted from or was complicit in the
conspiracy alleged,” the Court finds that Plaintiff’s evidence may be sufficient to create a
jury question on the issue. In other words, the Court will wait and see what the
evidence shows at trial. The grant of summary judgment in favor of The N. Dudley
Horton Revocable Trust is accordingly VACATED, and the Trust Defendants’ Motion
for Summary Judgment is now DENIED in part. However, the Court may choose to
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revisit this matter, if the Trust moves for judgment as a matter of law pursuant to Fed. R.
Civ. P. 50 at the close of Plaintiff’s evidence.
SO ORDERED this 14th day of May 2012
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
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