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Jury to decide if forclosure sale of homeless shelter was illegal, rules supreme court


Published Monday, November 23, 2015

Please note: Opinion summaries are prepared by the Public Information Office for the general public and news media. Summaries are not prepared for every opinion released by the Court, but only for those cases considered of great public interest. Opinion summaries are not to be considered as official opinions of the Court. The full opinions are available on the Supreme Court website at .

    Under a ruling today by the Supreme Court of Georgia, the Metro Atlanta Task Force for the Homeless, Inc. has won the right to have a jury decide whether the foreclosure sale of its homeless shelter in downtown Atlanta was illegal.
    A number of people and organizations have tried to get the Task Force evicted from the building at the corner of Pine and Peachtree streets on the grounds that the Task Force has failed to make payments on the property and is merely “warehousing” homeless people. Among numerous claims brought by the Task Force against numerous defendants, the claim of wrongful foreclosure is one of several that are key to the Task Force’s case.
    In today’s unanimous decision, written by Justice Robert Benham, while the Task Force has won some of its claims, it has lost others in a complex and contentious case that has been tied up in litigation for years.
At issue in this appeal are two earlier orders by the Fulton County Superior Court: one that lifted a stay and allowed eviction proceedings against the Task Force to begin, and the other which stated that the majority of the remaining issues raised by the Task Force should be decided by a jury, including whether the foreclosure sale was unlawful and whether the evidence shows a conspiracy against the Task Force and improper interference in its relationships with various public and private funding sources.
Since the time this appeal was filed in the state Supreme Court, attorneys for the Task Force have won a “plea in abatement” – essentially another stay – that prohibits any attempt to evict the Task Force from the property until the litigation is complete. The Georgia Court of Appeals recently upheld that ruling.
In today’s opinion, the high court therefore dismisses as “moot” the appeal of the trial court’s order allowing eviction proceedings to begin. As to the other order, “we affirm in part and reverse in part,” the opinion says.
According to the facts of the case, the Metro Atlanta Task Force for the Homeless owned the property in downtown Atlanta free of debt from 1997 until 2001, when it took out $900,000 in loans with two original lenders – the Institute for Community Economics (“ICE) and the McAuley Institute, which later transferred its promissory note and security deed to Mercy Housing, Inc. As of January 2010, the Task Force was in default with its lenders, so Ichthus Community Trust purchased the outstanding notes from the lenders for $781,112.84. Ichthus borrowed money from Premium Funding Solutions, LLC, to buy the notes. In May 2010, Ichthus foreclosed on the property and sold it on the courthouse steps. As the sole bidder, Ichthus then purchased the property, with the record showing it paid what it had paid for the notes and possibly as high as $900,000. The same month, Ichthus sued the Task Force in superior court, seeking a temporary and permanent injunction, essentially to gain access to the Peachtree-Pine property. Ichthus alleged the Task Force was denying it access, and it needed to conduct an inspection. At the same time, Ichthus filed a “dispossessory” action in magistrate court, which is what a landlord does to request that the court return possession of the property to the landlord and award any unpaid rent that is still owed.
In response, the Task Force countersued Ichthus, claiming wrongful foreclosure and seeking title to the Peachtree-Pine property. In addition, the Task Force countersued Ichthus for violations of Georgia’s racketeering statute (RICO); interference with business and contractual relations; libel, slander and defamation; bad faith; and punitive damages. In June 2010, the Task Force filed a separate lawsuit against Central Atlanta Progress, Atlanta Downtown Improvement District, Benevolent Community Investing Co., LLC, Premium Funding Solutions, LLC, and Emanual Fialkow, making the same claims it had made against Ichthus. (Fialkow had offered to buy the property in 2009 for $2.1 million, after the Task Force placed a listing.) The Task Force alleged that these defendants were in a conspiracy to prevent the Task Force from paying on the notes by interfering in its relationship with public and private funding sources. On June 17, 2010, the trial court entered a consent order approved by the parties which permitted the Task Force to continue its occupancy of the property, tabled the issue of possible rent payments, and stayed the dispossessory action previously filed by Ichthus. In 2011, while the various legal actions were pending, Ichthus defaulted on its loan obligation with Premium Funding Solutions and in February 2011, Ichthus executed a warranty deed and transferred the property to Premium Funding Solutions. Premium Funding Solutions subsequently asked the court’s permission to file a dispossessory action to evict the Task Force.
    The defendants filed motions asking the trial court to grant them “summary judgment,” which a judge does upon deciding that a jury trial is unnecessary because the facts are undisputed and the law falls squarely on one side or the other. The trial court appointed a “special master” to hear that set of arguments. (A “special master” is a disinterested person – usually a lawyer – appointed to a case to assist the judge in a case by holding hearings and making recommendations.) In January 2014, following a hearing, the special master concluded that the Task Force had some viable claims that a jury should decide, including its claims for wrongful foreclosure, quiet title, intentional interference, bad faith and punitive damages. The defendants filed their objections to the special master’s order, the trial judge conducted another hearing, and on Aug. 8, 2014, the judge adopted the special master’s order, paving the way for a jury trial. In addition, the judge lifted the stay and granted Premium Funding Solutions’ request to begin eviction proceedings against the Task Force.
On appeal, the Task Force argued that the trial court erred in determining Premium Funding Solutions could file a dispossessory action while the main case was still pending and that the trial court was wrong to terminate the stay. But in today’s opinion, “we conclude that the instant allegation of error is moot inasmuch as the Task Force has successfully obtained a remedy at law for the dispossessory action filed by Premium Funding Solutions.” The remainder of the 40-page opinion is devoted to addressing one by one the Task Force’s other claims.
Among them, the Task Force alleged a conspiracy in which the defendants worked toward a common goal of permanently depriving the Task Force of the downtown property. In briefs, the Task Force’s attorneys argued that “since late 2006, a group of powerful business entities have conspired to drive the Task Force from the property by systematically destroying its donor and lender relationships, using its weakened position to acquire notes secured by the property, wrongfully foreclosing and evicting the Task Force.” In the briefs, the attorneys referred to different people as “conspirators” or in the case of the then-president of Emory Healthcare, “a member of the conspiracy.” The defendants, particularly Fialkow, argued there was no such conspiracy or wrongdoing against the Task Force.
In today’s opinion, the high court has concluded that there “is evidence, however, that Fialkow may have been part of a concerted action with a common design insofar as his role in acquiring the notes on the property through defendant Ichthus.” Because disputed issues remain, “and because civil conspiracy claims may be properly resolved by a jury, the special master and trial court did not err in denying summary judgment to Fialkow and the other defendants on the civil conspiracy claim.”
The Task Force also alleged that Dan Cathy, President of Chick-fil-A, Inc., quit giving charitable contributions to the shelter due to the defendants’ interference in the Task Force’s relationships with donors. The trial court ruled the claim needed to go to a jury, and not be decided by summary judgment. In today’s opinion, however, the high court disagrees, finding that a charitable donation to the Task Force “is more akin to a gift than it is akin to a traditional business relationship.”
 “Unlike a traditional business relationship where the parties have some agreement or contract that is mutually beneficial and where there is some consequence for non-compliance with said agreement or contract, a charitable donor has no obligation to bestow a gift…,” the opinion says. The trial court therefore was wrong in denying summary judgment in favor of the defendants on this claim, the opinion says, and the high court has reversed the lower court’s ruling.
The trial court also was wrong to deny summary judgment in favor of defendants on the issue of title to the property. The Task Force lost all title in 2010 when Ichthus foreclosed on the property, and therefore it has no standing to sue for title.
However, the high court has upheld the trial court’s decision denying summary judgment on the Task Force’s claim that the defendants interfered in its business relationships with the original lenders, Mercy Housing and ICE. The evidence suggests, the opinion says, “that defendants may have been improperly interfering with the relationships between the Task Force and the lenders by making misleading statements about the Task Force in order to persuade the lenders to sever their relationship with the Task Force, either through foreclosure or sale of the notes.” As a result, “We find no reason to upset the decision to deny summary judgment regarding this claim.” And it has ruled that a jury must also decide whether the defendants interfered with the Task Force’s ability to obtain public funding from the Georgia Department of Community Affairs. The Task Force alleges the defendants made misrepresentations about the Task Force to the Atlanta Mayor’s staff, who in turn wrote letters to the state department recommending the Task Force not be funded. The record shows that at least one of the letters echoed sentiments attributed to the defendants that the Task Force was merely “warehousing” the homeless and not providing them with any services.
Finally, the high court has ruled in favor of the Task Force on its claim of wrongful foreclosure. A year before Ichthus paid possibly up to $900,000 for the property, Fialkow had offered to buy it for $2.1 million, and he admitted it was worth at least three times what Ichthus had paid at the foreclosure sale. A real estate broker stated in deposition that the property was worth $8.3 million at the time of foreclosure. 
This evidence goes “to the heart of whether a breach of duty occurred and whether there was harm to the Task Force,” today’s opinion says. “These disputes of material fact must be considered and weighed by a jury to determine whether a wrongful foreclosure occurred.”
Attorneys for Appellant (Task Force): Steven Hall, Robert Brazier
Attorneys for Appellees (Premium): David Maher (a number of other attorneys represent the additional organizations that are suing or being sued) 

    The Supreme Court of Georgia has ruled in favor of a man who claims he is no longer addicted to drugs and therefore should be allowed to regain custody of his 7-year-old daughter.
Under today’s unanimous ruling, Justice Keith Blackwell writes that a Douglas County juvenile judge erred in dismissing Steven Frank’s petition to regain custody of his child from a couple the court had appointed as permanent guardians who have now cared for her since she was 19 months old.
 According to the facts of the case, in February 2010, at the recommendation of the Department of Family and Children Services, the Douglas County juvenile court ruled that M.F. was a deprived child. The juvenile court placed the toddler with Candace and Gerald Rausch, who were not related to M.F. but had raised her mother following the divorce of the girl’s parents. M.F.’s mother and father, Steven Frank, were not married. According to the Rausches’ attorney, after M.F.’s natural parents failed to overcome their substance abuse and failed to comply with the reunification case plan, the child welfare agency filed a Petition for Permanent Guardianship, asking that the Rausches be appointed M.F.’s “permanent guardians,” which the juvenile judge did in January 2012. The judge found that it was not in M.F.’s best interest to terminate the parents’ rights and recommended visitation rights for Frank “to support the child’s strong bond to him.” The judge pointed out in the guardianship order that M.F.’s mother and father “are young, intelligent and able to stabilize their lives provided they engage in long-term substance abuse treatment and recovery.” Frank was awarded visitation rights with his mother serving as supervisor. Frank did not appeal the guardianship order.
    In June 2013, the Rausches filed a Motion for Contempt against Frank, alleging the father had not been compliant with the court’s order mandating that his visitation with M.F. be supervised. The judge subsequently held Frank in contempt and rejected Frank’s counterclaim asking the court to modify the guardianship order. The court found that he had illegally exercised unsupervised visitation with the child and exceeded his authority to care for her. The judge also found he’d created an emotionally abusive situation during his visitation exchanges and the judge voiced concern about his continued reliance on the drug Suboxone, which is prescribed to help people recover from addiction to opiates, such as heroin. Frank did not appeal the contempt order or seek to have it set aside, according to briefs filed in the case.
In 2014, Frank filed a Complaint for Custody in Gwinnett County Superior Court, which was in the county where the Rausches lived, alleging that the conditions leading to the guardianship had been resolved. Frank argued the evidence showed he had remained drug-free for three years and it was in M.F.’s best interest to be with her natural father. In response, the Rausches filed a motion to dismiss the complaint for custody and a motion to transfer the case. They argued that under Georgia Code § 15-11-244, the permanent guardianship statute, the juvenile court in Douglas County where the guardianship was established retained authority over any change. In April 2014, the Gwinnett County court transferred the case to Douglas County. Following a hearing, in August 2014, the same Douglas juvenile judge dismissed the case. The judge, who also charged Frank $5,000 in attorney’s fees, stated that the standard for modifying the arrangement as established in the Georgia Code “is clear and convincing evidence that there has been a material change of circumstances of the child or the guardian and that such modification, vacation or revocation of the order is in the best interests of the child. In reading the petition and subsequent amendments, the court finds the complaint for custody and subsequent amendments do not allege any legal basis outlined by statute for modification, vacation or revocation of the order.” Frank then appealed to the Georgia Supreme Court.
In today’s opinion, the high court first addresses Frank’s claim that the transfer of his petition from Gwinnett County to Douglas County was error. “We disagree,” the opinion says.
The permanent guardianship statute clearly states that when a juvenile court enters an order of permanent guardianship, that court “shall retain jurisdiction over a guardianship action…for the sole purpose of entering an order following the filing of a petition to modify, vacate, or revoke the guardianship and appoint a new guardian.”
“Accordingly, a superior court has no authority to award permanent custody of a child under a permanent guardianship to anyone other than a guardian, and to secure the permanent custody of such a child, anyone other than a guardian generally must first petition the juvenile court to modify, vacate, or revoke the guardianship,” the opinion says. “For this reason, the transfer of the petition to Douglas County was no error.”
However, the juvenile judge’s dismissal of Frank’s petition on the ground that he failed to state a claim upon which relief could be granted was wrong. The grounds for changing a permanent guardianship order are defined in the statute, which states: “The guardianship shall be modified, vacated, or revoked based upon a finding, by clear and convincing evidence, that there has been a material change in the circumstances of the child …or the guardian and that such modification, vacation, or revocation of the guardianship order and the appointment of a new guardian is in the best interests of the child.”
“Although a permanent guardianship indisputably works a limitation of the parental power of a legal parent by vesting that parental power in the guardian, it does not forever terminate the parental rights of a parent,” the opinion says. The fact that the statute contemplates modifying a permanent guardianship “signals quite clearly that the statutes do not mean for a permanent guardianship to work a termination of parental rights.”
 “As we have explained, ‘parents have a fundamental liberty interest in the care, custody, and management of their children,’  and there can scarcely be ‘a more fundamental and fiercely guarded right than the right of a natural parent to [his] offspring,’” today’s opinion says. “‘The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost [at least] temporary custody of their child to the State.’”
“Given the general presumption of parental custody, one can hardly imagine a change in circumstances more material for such a child than the subsequent reappearance of a parent fit to be charged with her care and custody, thereby rendering the child no longer a ‘deprived’ or ‘dependent’ child.”
A footnote in the opinion offers hypothetical examples of children placed with permanent guardians after their only parent is rendered comatose from a traumatic accident, or goes missing in action while serving her country. “Now suppose, however, that the comatose parent awakens against all odds, or the missing parent returns unexpectedly,” the opinion says. “It would be extraordinary, we think, to conclude that the law denies such a parent any opportunity whatsoever to regain custody of her child.”
In this case, Frank’s petition alleges that his “material change in circumstances” requires the modification or revocation of the permanent guardianship of M.F. under the law.
“Accordingly, his petition states a claim under OCGA § 15-11-244 upon which relief might properly be granted, so long as the father proves that material change in circumstances clearly and convincingly, and so long as he proves as well that his custody of M.F. is now in her best interest. Whether the father can prove those things is a question for the juvenile court. But the juvenile court erred when it dismissed the petition, and we reverse the judgment of dismissal.”
Attorney for Appellant (Frank): Tom Pye
Attorney for Appellees (Rausches): Douglas Fox 

    In an opinion today, the Georgia Supreme Court has ruled that employees of personal care companies who take care of elderly and disabled people in their homes are entitled to Georgia’s minimum wage.
    According to the facts of the case, Southern Home Care Services, Inc. is a multi-state home health care company and a subsidiary of Res-Care, Inc., that employed Margaret Anderson and a number of others to provide in-home non-medical services to elderly and disabled persons. The services varied according to the individual but included such things as assisting people with bathing, toileting, dressing, walking, and cleaning up after them. Because the employees worked in people’s homes, they had to travel during the work day between job sites. They claimed they did not get paid for the hours they were on the road and therefore, earned less than minimum wage. In February 2013, Anderson and the others sued Southern Home Care and Res-Care in DeKalb County Superior Court to recover unpaid overtime and minimum wages. The DeKalb court subsequently granted the companies’ motion to transfer the case to the U.S. District Court for the Northern District of Georgia.
The dispute in this case is over the interpretation of the state Georgia Minimum Wage Law. The federal Fair Labor Standards Act states that federal minimum wage and overtime provisions do not apply to “any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves….”  Anderson and the plaintiffs who filed the lawsuit claim that because they fall under this exemption, and the law’s general minimum wage requirements do not apply to them, they are not “covered” by the federal law. The Georgia law states that its provisions do not apply “to any employer who is subject to the minimum wage provisions of any act of Congress as to employees covered thereby if such act of Congress provides for a minimum wage which is greater than the minimum wage which is provided for in this Code section.” The plaintiffs claim that because they are not “covered” by the federal law, they are covered by the Georgia law, which states that “every employer…shall pay to all covered employees a minimum wage which shall be not less than $5.15 per hour for each hour worked in the employment of such employer.” The employers contend the employees are covered by the federal law. Also, they argue that because the employees are “domestic employees,” they are exempted under another provision of the Georgia law. The employees counter that while the Georgia law exempts from its minimum wage protections any “employer of domestic employees,” they are not “domestic employees.”
Before issuing a final decision in the case, the federal U.S. District Court has asked the state Georgia Supreme Court to answer two questions:
1.    If an employee falls under an exemption of the federal Fair Labor Standards Act, is he or she still “covered” by that act and thereby prohibited from receiving minimum wage compensation under the Georgia Minimum Wage Law?
2.    Is an employee who provides in-home personal support services prohibited from receiving minimum wage compensation under the Georgia law due to the “domestic employees” exception stated in that law?
In today’s unanimous opinion, “we answer both of these questions no,” Justice David Nahmias writes for the Court.
“It is undisputed that the Employers, as companies with employees and clients in multiple states, are enterprises engaged in commerce, and thus they are ‘subject to’ the Fair Labor Standards Act’s minimum wage provisions,” the opinion says. “That is not, however, all that is required for the Georgia Minimum Wage Law exception to apply.”
    At least until Jan. 1, 2015, the employees fell under the “companionship services” exemption of the federal law, which excludes from federal minimum wage protections, “any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves.” Federal regulations define “companionship services” as “meal preparation, bed making, washing of clothes, and other similar services.” And the regulations apply the companionship services exemption to workers employed by third-party agencies like the employers in this case. Therefore, “the Employees concededly were not entitled to the minimum wage set by the [federal law] during their time working for the Employers,” the opinion says.
    The Georgia law, meanwhile, excludes from its minimum wage protection employees “who are ‘covered’ by the minimum wage provisions of a federal statute like the Fair Labor Standards Act if such act provides for a minimum wage greater than the Georgia Minimum Wage Law’s minimum wage,” the opinion emphasizes. That exemption, it says, is “squarely focused on employees who are exempted from the [federal law’s] minimum wage provisions, like the Employees in this case, and who thus could benefit from a state minimum wage, albeit one lower than the federal one.” (The federal minimum wage is $7.25 an hour.)
    “For these reasons, we answer the first certified question no,” today’s opinion says.
    Regarding the second question, the employers argue that the employees are also exempt from the Georgia Minimum Wage Law because it states it “shall not apply with respect to…[a]ny employer of domestic employees.” The employees argue, however, that they were never “domestic employees” as that term is used in the statute because they were employed by third-party agencies and did not work in the homes of their employers.
    In today’s opinion, the high court agrees. “Sources providing everyday definitions of domestic employees and employment – including the Wikipedia definition cited to us by the Employers – limit such employment to work done in the home of the employer,” the opinion says. Under Georgia Department of Labor regulations, domestic services “must be performed by an individual in or about the private home…of the person employing the individual.” “Under this definition, the Employees were not providing ‘domestic services,’” the opinion says, because they “instead worked in the homes of their Employers’ clients.”
    For these reasons, the high court also answers no to the second certified question.
Attorneys for Appellants (Anderson): Geoffrey Pope, J. Marcus Howard
Attorneys for Appellees (Southern): Ronald Polly, Jr., Matthew Boyd

In a highly contentious dispute involving the family of O. Wayne Rollins, one of the founders of Rollins, Inc., Georgia Supreme Court is throwing out for the second time a decision by the Georgia Court of Appeals involving a Fulton County lawsuit. The suit was filed by four siblings, who are grandchildren of O. Wayne Rollins, against their father and uncle who managed trusts their grandfather had set up for them before he died.
In today’s unanimous decision, written by Justice Robert Benham, the high court is sending the case back to the Court of Appeals for additional action.    
Over its 60-year history, Rollins, Inc., whose companies include Orkin Pest Control, has grown into one of North America’s largest pest-control conglomerates yielding assets worth several billion dollars. The elder Rollins, who with his brother built the pest-control empire, named his two sons, Gary Rollins and Randall Rollins, as trustees of his estate and as officers and directors of the family-held corporations. He also named a close family friend, Henry B. Tippie, as a trustee. Before his death, O. Wayne Rollins set up the “Rollins Children’s Trust” and nine Subchapter S-Trusts, each for the benefit of the nine children of Gary and Randall. These trusts hold interests in a complex web of corporate family entities and holding companies which were created primarily to reduce tax liability to the elder Rollins’ heirs, according to briefs filed in the case. Under the terms of the Children’s Trust, which was established in 1968, the beneficiaries were to receive “statements disclosing the condition of the trust estate” not more than every six months. Also under its terms, a portion of the trust principal was distributed to the nine grandchildren on their 25th and 30th birthdays, so that the first half of the principal has by now been distributed and accepted by the nine grandchildren. In 1986, O. Wayne Rollins as the “settlor” established the Subchapter S-Trusts, and to date more than $74 million in income has been distributed to the beneficiaries, according to the briefs.
After O. Wayne Rollins’ death in 1991, Gary’s four children – Glen Rollins, Ruth Ellen Rollins, Nancy Louise Rollins, and O. Wayne Rollins II – sued their father, uncle and Tippie in Fulton County Superior Court for breach of trust and breach of fiduciary duties. (Randall’s five children did not sue.) They alleged that after their grandfather died, the trustees made various changes to the structure, leadership, holdings, and distribution methods used within the various family entities that are held within the Children’s Trust and the S-Trusts. They claimed their father and uncle shifted power to themselves and violated the trust documents and their grandfather’s intent to evenly distribute the trusts’ assets to the nine grandchildren. They claimed that after they sued, Gary and Randall excluded them from a distribution of some $9 million that instead went to their cousins – Randall’s five children – who did not sue. They also claimed that Gary and Randall had Gary’s son, Glen Rollins, fired from his position at the family company where he had worked his entire career.
The Fulton judge ruled in favor of Gary and Randall, finding that “Defendants’ conduct with respect to the management of the trust assets was permissible under the trust agreements and consistent with the intent of the settlor, O. Wayne Rollins.” The trial court refused to order an accounting of the corporate entities which hold the trust assets, holding that they had effectively obtained such an accounting in the course of the litigation. The grandchildren appealed, and the Court of Appeals reversed the lower court’s decision and ruled in their favor, finding that the Fulton court erred by failing to order an accounting of the Rollins corporate family entities. The appellate court relied on Official Code of Georgia § 53-12-243, which mandates that upon request by any beneficiary, a trustee “shall provide” a report of information about the trust and “shall account at least annually” to each beneficiary. The Court of Appeals also ruled that the trial court erred in finding that Gary Rollins, Randall Rollins and Henry Tippie had not breached their fiduciary duties, finding that the actions they took regarding the corporate entities were subject to the heightened trustee-level fiduciary duties they had as trustees.
The Rollins brothers and Tippie appealed to the state Supreme Court, which in March 2014 unanimously reversed the Court of Appeals and ruled in their favor. The high court held that the Court of Appeals erred in ruling that the trial court should have ordered an accounting of the family entities held within the trusts. Although that decision may ultimately prove to be correct, the opinion said, “we find it to be erroneous at this juncture because the Court of Appeals failed to give due deference to the discretion of the trial court in this matter. Accordingly, we find it necessary to vacate and remand this issue to the Court of Appeals to enable the appellate court to reweigh the accounting issue by placing the sound discretion of the trial court on the scales.”
    Another issue in Gary and Randall Rollins’ first appeal to the state Supreme Court was whether the Court of Appeals applied the proper fiduciary standard to the conduct of the trustees in ruling that their actions as managers of the corporate family entities must be scrutinized according to heightened trustee-level fiduciary standards instead of the more deferential standards that apply to the conduct of corporate entity managers.
    In 2014, the high court also reversed the Court of Appeals’ decision on this issue, ruling that “where, under the terms of a trust, the trustee is put in control of a corporate entity in which the trust owns a minority interest, the trustee should be held to a corporate level fiduciary standard when it comes to hi