A part-time valley resident who is being sued by her son, an apparent heir to the Cargill fortune, wants a judge to strike allegations in a court motion she says are “impertinent, immaterial or scandalous.”
The allegations against Patricia MacMillan, who has a home in Old Snowmass and Hillsboro Beach, Fla., are part of a lawsuit her son, Andrew MacMillan, filed against her in May.
He alleges that she and unnamed accomplices set up a nearly identical email as Andrew MacMillan’s attorney, David Bovino of Aspen, in an attempt to divert millions to herself from his $250 million trust fund. Bovino is also a plaintiff in the case, and a judge on Nov. 10 approved his motion allowing him to withdraw as Andrew MacMillan’s legal representative in the lawsuit against his mother. Bovino had argued that Andrew MacMillan needed an independent attorney in the case; it is not clear if he continues to represent MacMillan in other matters.
MacMillan is the son of the late John MacMillan III. The MacMillan and Cargill families in the 1860s founded what is now the largest private corporation in the United States, a multinational giant dealing in agriculture; energy and transport; food distribution; and financial services. It earned more than $4 billion in the 2011 fiscal year alone, according to a five-year financial summary.
Court papers say that Andrew MacMillan was named an heir, along with two brothers, to the family fortune after extensive litigation involving paternity issues. The lawsuit says Patricia MacMillan and others set up an email account called bovinolaw.net to mimic Bovino’s bovinolaw.com address. The dummy account was allegedly used so emails favoring the defendants would appear to be coming from Bovino’s office. Bovino and Andrew MacMillan allege about $3 million was diverted from “several trusts administered by corporate trustees” in this way.
MacMillan’s legal answer to the lawsuit, filed by attorney David Lenyo of the Aspen law firm Garfield & Hecht, denies almost all of the allegations. She acknowledges that Andrew MacMillan is the son of her and her late husband, John MacMillan III (the couple divorced in 1991), but denies that he is the recipient of a $250 million trust fund.
Recent court filings by the new attorney for Bovino and Andrew MacMillan, Lori Hulbert of Denver, say that on the same day as the lawsuit was filed in Pitkin County District Court, Patricia MacMillan filed a court petition in Florida seeking an emergency guardian for her son. A judge found Andrew MacMillan not competent to stand trial on various criminal charges. He was charged with domestic violence and resisting an officer in February, and has also been charged with trafficking oxycodone, according to Florida court records.
Accusations of coercion have been made against both sides. The motion seeking to allow Bovino to withdraw, for instance, says Andrew MacMillan “entered into a coerced settlement agreement whereby his mother … will act as his guardian for the period of one year.” Andrew MacMillan also said in an affidavit given to his mother that Bovino added him to the lawsuit against her “without his permission,” the motion says.
In refuting the latter allegation, Hulbert cites an affidavit from Walter O’Neill, who said he has worked for Andrew MacMillan as his boat captain and emergency medical technician. It is O’Neill’s statements, and Andrew MacMillan’s Florida bar complaint made against his attorney there — both of which are included as exhibits in the Aspen lawsuit — that contain the language Patricia MacMillan is attempting to have stricken as “impertinent, immaterial or scandalous.” Hulbert calls the attempt premature.
In his affidavit, O’Neill describes the relationship between the mother and son as “very abusive” and lacking in trust.
“I have observed Patricia’s attempts to control Andrew by obtaining information about his whereabouts and have seen her pay people to follow Andrew and then report back to her on where he has been, what he has done and who he was with,” the boat captain says in the June affidavit. “It is no wonder that Andrew has become paranoid.”
Months before Andrew MacMillan’s wife became pregnant, O’Neill said he found a note from her doctor to her with instructions “on how to conceive a child after sexual intercourse, such as to elevate the hips. Andrew had told me that he did not want a child, as he was only 21 years old,” the affidavit says.
In his Florida bar complaint against attorney David Bogenschutz, made in March, Andrew MacMillan writes that the lawyer was not representing his best interests in court competency matters. Bogenschutz’s actions were done at the direction of “my untrustworthy wife, mother and trustees,” the complaint says.
“All parties are after my … enormous wealth and inheritance (from Cargill Incorporated),” he wrote.
He also says he is addicted to prescription medication and that his mother and others have tried to stop him from getting treatment and from divorcing his wife.
Bogenschutz and Lenyo could not be reached for comment.
On July 14, a Florida circuit judge appointed Patricia MacMillan to be her son’s guardian, ruling he is incapable of managing his affairs. The ruling allows her “to sue and defend against lawsuits,” a move that “vividly reveals her conflict of interest in seeking, through her Florida guardianship authority, to orchestrate a self-serving dismissal of this lawsuit,” wrote Spencer Crona, another attorney for Bovino and Andrew MacMillan.
His motion seeking a judge to appoint a guardian for Andrew MacMillan for the local lawsuit also says that Patricia MacMillan’s “proffer of an alleged affidavit of Andrew MacMillan, expressing a desire to dismiss the lawsuit, is precisely the sort of questionable event, given the totality of the circumstances, which an independent guardian … appointed by this court for this case, should be charged to investigate.”
Chief Judge James Boyd of the 9th Judicial District, however, denied the motion, ruling that, in essence, the guardianship issue in Florida must be resolved first.
The lawsuit is scheduled to go to trial in late October 2012.
