HomeMy WebLinkAbout03262014 Special MinutesCROF
SEBASn
ROME OF PELICAN ISLAND
SEBASTIAN CITY COUNCIL
MINUTES
SPECIAL MEETING
FOR THE PURPOSE OF CONVENING
ATTORNEY-CLIENT SESSION
WEDNESDAY, MARCH 26, 2014 - 6:00 P.M.
CITY COUNCIL CHAMBERS
1225 MAIN STREET, SEBASTIAN, FLORIDA
Mayor McPartlan called the Special City Council Meeting to order at 6:00 p.m.
2. ROLL CALL
City Council Present:
Mayor Bob McPartlan
Vice Mayor Jim Hill
Council Member Jerome Adams
Council Member Andrea Coy
Council Member Richard Gillmor
City Staff Present:
Interim City Manager, Joe Griffin
City Attorney, Robert Ginsburg
City Clerk, Sally Maio
Also Present:
Louis B. Vocelle, Vocelle & Berg, LLC
3. RECESS TO CONVENE ATTORNEY-CLIENT SESSION: In accordance with FS
286.011(8) and request made by City Attorney Robert A. Ginsburg at the March 12,
2014 regular City Council meeting, the public meeting will be recessed for the purpose of
convening an Attorney -Client session to discuss pending litigation in regard to the case
Fisherman's Landing Restaurant, LLC, vs Fisherman's Landing Sebastian, Inc., Indian
River Seafood, Inc. and City Of Sebastian in the City Hall 2nd floor Conference Room.
Mayor McPartlan read the title above, cited the anticipated duration of the Attorney -
Client session as 30 minutes, listed attendees as set out below, and called a recess
for the Special Meeting at 6:02 p.m.
ESTIMATED LENGTH OF SESSION: 30 Minutes
NAMES OF PERSONS ATTENDING: Mayor Bob McPartlan, Vice Mayor Jim Hill,
Council Member Jerome Adams, Council Member Andrea Coy, Council Member Richard
Gillmor, City Attorney Robert A. Ginsburg, Special Counsel Louis B. Vocelle, Jr. of
Vocelle & Berg, LLC, Interim City Manager Joseph Griffin and a Certified Court Reporter
All of those listed above left the meeting to attend the Attorney -Client session in the 2nd
Floor conference room. The City Clerk remained in the Council Chambers during the
recess.
Special City Council Meeting
March 26, 2014
Page Two
4. REOPENING OF PUBLIC MEETING TO ANNOUNCE TERMINATION OF ATTORNEY=
CLIENT SESSION
At 6:39 p.m. all attendees returned to the Council Chambers and Mayor McPartlan
reconvened the Special Meeting, and announced the adjournment of the Special
Session.
5. Being no further business to come before Council for the Special Meeting, Mayor
McPartlan adjourned the Special Meeting at 6:40 p.m.
Approved at the April 9, 2014 Regular Council Meeting.
By: 19-t� 22
Bob McPartlan, Mayor
Attest:
Sally A. Maio MC, City Clerk
2
Foreign Account Number 11514139
Ad # - 2609220
Ad Net Cost $131.82
Name (Primary) CITY OF SEBASTIAN
Company (Primary) CITY OF SEBASTIAN
Street 1 (Primary) 1225 MAIN ST
City (Primary) SEBASTIAN
State (Primary) FL
ZIP (Primary) 32958
Phone (Primary) (772) 589-5330
Class Code 9402IR - Notice
Start Date 3/21/2014
Stop Date 3/21/2014
Prepayment Amount - $0.00
Ad Sales Rep. mb - Mary Byrne
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CITY OF SEBASTIAN
SPECIAL CITY
COUNCIL MEETING
TO CONVENE
ATTORNEY-CLIENT
SESSION
MARCH 26, 2014 -
6PM
CITY COUNCIL
CHAMBERS
1225 MAIN STREET
SEBASTIAN,
FLORIDA
FLORIDA
The City Council of
the City of Sebastian,
Indian River County,
Florida, will conduct
a Special Meeting on
Wednesday, March
26, 2014 at 6:00 p.m.
in the City Council
Chambers, City Hall,
1225 Main Street,
Sebastian, Florida,
for the purpose of
convening an Attor-
ney -Client Session in
accordance with FS
286.01118) in regard
to pending litigation
in the case of Fisher-
man's Landing Res-
taurant, LLC, vs Fish-
erman's Landing Se-
bastians, Inc., Indian
River Seafood, Inc.
and City of Sebastian
and in accordance
with a request made
at the March 12,
2014 Regular City
Council Meeting by
City Attorney Robert
A. Ginsburg.
Estimated Length of
Attorney -Client Ses-
sion - 30 minutes
Names of Persons At-
tending Attorney -
Client Session:
Mayor Bob McPart-
lan, Vice Mayor Jim
Hill, Council Member
Jero-me Adams,
Council Member An-
drea Coy, Council
Member Richard Gill -
mor, City Attorney
Robert A. Ginsburg,
Special Counsel
Louis B. Vocelle, Jr.
of Vocelle & Berg,
LLC, Interim City
Manager Joseph
Griffin and a Certi-
fied Court Reporter.
The Special City
Council Meeting will
be called to order in
the City Council
Chambers at 6 pm
and be recessed in
order to convene the
Attorney -Client Ses-
sion in the City Hall
2nd Floor Confer-
ence Room by the
listed attendees only.
At the conclusion of
the Attorney -Client
Session, the attend-
ees will return to the
Special Meeting,
which will be re -con-
vened to announce
the termination of
the Attorney -Client
Session and then ad-
journed.
Any person who may
wish to appeal any
decision which may
be made by the City
Council at this Spe-
cial Meeting will
need to ensure that a
verbatim record of
the proceedings is
made which record
includes the testimo-
ny and evidence
upon which the ap-
peal will be based.
(286.0105 F.S.)*
In compliance with
the Americans with
Disabilities Act
(ADA), anyone who
needs a special ac-
commodation for
this meeting should
contact the City's
ADA Coordinator at
772-589-5330 at least
48 hours in advance
of the meeting.
*The Attorney -Client
Session Portion of
this meeting is not
open to the public
under FS 286.011(8)
and only those listed
as attendees may
participate. The tran-
script of the Attor-
ney -Client Session
by the Certified Court
Reporter will remain
sealed until litigation
is concluded.
By: Sally Maio, MMC
City Clerk
Publish: March 21,
2014
TCN2609220
May 15, 2015 - Per City Attorney Robert A. Ginsburg, because of settlement, the
minutes of the March 26, 2014 Executive Session are now open to the public.
Filing # 26765315 E -Filed 05/01/2015 07:47:46 AM
IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR INDIAN RIVER COUNTY, FLORIDA
FISHERMAN'S LANDING RESTAURANT, LLC
A Florida Limited Liability Company,
FISHERMAN'S LANDING,
Plaintiff,
and
FISHERMAN'S LANDING SEBASTIANS, INC,
a Florida Corporation, INDIAN RIVER
SEAFOOD, INC. a Florida Corporation and
THE CITY OF SEBASTIAN, a political subdivision of
Indian River County, Florida
Defendants,
Case No: 31 -2013 -CA -1073
Judge: COX
PLAINTIFF'S ACCEPTANCE OF' DEFENDANT CITY OF SEBASTIAN'S PROPOSAL
OF SETTLEMENT
COMES NOW the Plaintiff, by and through its undersigned attorney and riles
this Acceptance of Defendant City of Sebastian's Proposal For Settlement and states
as Follows,
1. Plaintiff hereby accepts the Proposal for Settlement that was served on it
April 2, 2015 by the Defendant City of Sebastian as a Full and complete resolution of
the claims it has made, or could have made, against the City of Sebastian.
CIZTrF�CATE OF SERVICE
I HEREBY CERTIFY that true and correct copy of the foregoing has been
furnished by E -Mail to: Louis B. Vocelle, JR., BVocelleCDvocelleber.cone
Courtdacs@vocelleberg,com, YFL'dgd@vocelleherg.com, Gregory 1. Gore, Gore-
ST-
dawn@juno.com, Rich Stringer,'I'heStringerFirm@aol.com on this I day of May
2015.
JOHN MADDEN, P.A.
Counsel for Plaintiff
900 SE Ocean Boulevard,
Suite 126-C
Stuart, Florida 34994
772-220-3076Tel: 772-220-3767
E: jmadden@johnmaddenlaw.com
Madden, Esq.
Bar No.: 932728
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SEBASTIAN CITY COUNCIL
SPECIAL MEETING
DATE:
March 26, 2014
TIME:
6:05 p.m.
PLACE:
City of Sebastian
1225 Main Street
Sebastian, Florida
TAKEN BY:
Robert A. Ginsburg, City Attorney
BEFORE:
NANCY P. HODGES, Notary Public for the
State of Florida at Large.
AMERICAN REPORTING, INC.
P.O. Box 643087
Vero Beach, FL 32964-3087
(772) 778-2196
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1 APPEARANCES:
2 Bob McPartlan, Sebastian Mayor
3 Jim Hill, Sebastian Vice Mayor
4 Joseph Griffin, Sebastian Interim City Manager
5 Robert A. Ginsburg, Sebastian City Attorney
6 Richard H. Gillmor, Sebastian Council Member
7 Jerome Adams, Sebastian Council Member
8 Andrea B. Coy, Sebastian Council Member
9 x•+++
10 Louis B. Vocelle, Jr., Esquire
Special Counsel
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THEREUPON,
(The Special Meeting commenced at 6:05 p.m. as follows:)
MR. GINSBURG: Mr. Mayor?
MR. PARTLAN: Yes, Mr. Ginsburg.
MR. GINSBURG: Thank you for accommodating us,
the council, for an update on where we think we are with
regard to this litigation. First I want to make sure
we've hired Mr. Vocelle, Buck Vocelle, Vocelle and Berg
as our Special Counsel. Not all of you may know him.
So why don't you go ahead and we only have a half an
hour, so let's --
MR. VOCELLE: Let's get to it. I was retained
as Special Counsel to defend the City in the action that
was just announced by the mayor. The lawsuit was filed
in June of last year. The original complaint was
somewhat of a mish-mash; we had to dismiss, they had to
amend.
There are two pending counts or different legal
actions against the City. One is on a theory of
misrepresentation by omission. And basically what they
say is that the City Attorney Mr. Ginsburg, Ms. Coy, and
Mr. Minner were guests of the restaurant and observed
the expansion onto the deck in violation of the terms of
the Stan Mayfield Working Waterfront Agreement and
associated Operating Agreement and that by their
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silence, being representatives of the City, that somehow
misled them into thinking that they could continue what
they were doing.
The second count is for unjust enrichment that
they improved City property and the City shouldn't
derive the benefit from that.
Mr. Ginsburg and I have been in touch as the
litigation has progressed. The plaintiff's attorney is
a gentleman out of Stuart representing Ms. Brittney
Keane who is the owner of the plaintiff, if you will.
Her, I guess it is her step -mother married to her father
was also involved in this, Ms. McManus, as you will
recall. It's my understanding Ms. McManus was the one
that actually came to a number of the City meetings.
But, at any rate, they haven't pushed the case. So we
decided that as a tactical matter we should take Ms.
Keane's deposition which occurred last month. I deposed
her for approximately three hours. I believe Nancy was
the court reporter in that deposition.
We didn't get through everything I wanted to
get through because she was somewhat chatty. And what
it boiled down to was this woman had literally no prior
restaurant experience, a limited time in operating a
take-out window at her grandmother's fish shack in Fort
Pierce, went into this thing, in her words, trusting
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that the City and Mr. Sembler would do the right thing.
As you may recall, you all had a lease with
Fisherman's Landing Sebastian which was Charlie
Sembler's corporation. They leased to Crab -E -Bill's,
Crab -E -Bill's leased to Ms. Keane and Ms. McManus.
Referenced in, I guess, hers was the third sublease and
in all the prior leases were the Stan Mayfield Working
Waterfront Agreement, the other leases as well as the
Operating Agreement which, as you all know, limits the
number of tables to six tables on a limited restaurant -
type operation.
She says those were not attached to the lease
that she received. She didn't think anything of it;
never contacted an attorney, never thought to ask. Her
entire claim is based on the fact that three City
officials were there while they were operating and
didn't tell her no. That's literally the basis of her
entire claim.
She provided me with a stack probably eight to
ten inches high of receipts, all of which are primarily
in her name individually as opposed to her LLC because
she maxed out her credit cards in order to equip the
restaurant. One of the things she said was, well, they
must have known that it was going to be a large-scale
restaurant because the hood of the former Hurricane
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Harbor remains in place. Somehow that gave her the
impression that, oh, this is going to be a big
restaurant.
The long and the short of it is that I feel
that the case is extremely defensible, winnable. No
attorney can guarantee you results, but I'll take this
one to the bank. However, to do that you got to pay me.
To do that there are no guaranteed results. Early on
before litigation was instituted, it's my understanding
from talking with Mr. Ginsburg and Joe that there was a
global offer to resolve the case made by Mr. Minner
while he was city manager. I don't know the exact
amount. We seem to recall it was around $40,000.
MR. GINSBURG: 53,000.
MR. VOCELLE: $53,000 to resolve the case. Her
monetary damage claim has sort of gone all over the map.
It started in the lawsuit in one of the letters early on
at around $100,000 then it got jacked up to $200,000,
then she admitted she sold some of the equipment for
$30,000 to $40,000 which would be a deduction. It's a
moving target is my point.
One of the reasons that we wanted to come today
was not only to update you as to the status of
litigation because nobody else is really doing anything.
Everybody's just kind of sitting back. Rick Stringer
AMERICAN REPORTING. INC. (772) 778-2196
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1 represents Fisherman's Landing Sebastian. Greg Gore
2 represents Crab -E -Bill's.
3 There is a mechanism that we can employ called
9 an offer of judgment. What this does it's a formal
5 offer. The amount is not recorded in the court
6 documents, but it is sent to Ms. Keane's attorney in a
7 cash amount. And if you go to court and if they come
8 within -- not come within. If they exceed the offer by
9 75 percent, so if you offered $10,000, they get $7,501,
10 there would be no consequences.
11 If they did not exceed 75 percent of the offer,
12 the consequences are that the entity, the plaintiff,
13 would be responsible for paying all of the costs and
19 fees associated with the litigation from your
15 perspective.
16 Well, a couple of things in that regard. The
17 entity, the plaintiff, is a shell corporation, doesn't
18 have anything. So you may say to yourself what's the
19 benefit. Well, if she somehow would win against one of
20 the other defendants, whether it's Charlie Sembler's
21 corporation or against Crab -E -Bill's and would be
22 entitled to monies from them, we'd be able to dip into
23 that pot and take it back.
29 MS. COY: Say that again, please.
25 MR. VOCELLE: Sure. Let's say that everybody
AMERICAN REPORTING, INC. (772) 776-2196
W
1 goes to court. We file an offer of judgment. They
2 don't beat it which means they're going to be
3 responsible for a large portion of our attorney's fees
4 and costs. You can't squeeze blood out of a turnip.
5 But if she happens to win her case against one of the
6 remaining defendants and let's say the jury says Charlie
7 Sembler's corporation owes her $100,000, we'd be able to
8 dip into that pot --
9 MS. COY: To repay your fees.
10 MR. VOCELLE: Absolutely. So there is a
11
benefit.
12
MR.
GILLMOR:
Stupid question. So if we
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offered
her
10,000 and
she received a judgment for
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7,525 --
15
MR.
VOCELLE:
Correct.
16
MR.
GILLMOR:
-- and if we offered her more
17
than that,
I
mean, we've
offered her 10,000, she only
18
received
a judgment
for
7,525, we owe her 7,525 --
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MR.
VOCELLE:
Right.
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MR.
GILLMOR:
Your fees are 5,000, can we then
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get the
5,000
from --
considering we're only going to
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give you
X dollars?
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MR.
VOCELLE:
No.
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MR.
GILLMOR:
Why?
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MR.
VOCELLE:
'Cause she beat the offer of
AMERICAN REPORTING, INC. {772} 778-2196
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1 judgment by 75 percent. She would have to do less than
2 $7,500 using that example.
3 MR. GILLMOR: So say she didn't --
4 MS. COY: What if her claim was for $50,000 and
5 we've offered 10?
6 MR. GILLMOR: Then she wins.
7 MR. VOCELLE: Well, not necessarily. If a jury
8 found that one of the other guys be it Crab-E-Bill's or
9 Fisherman's Landing Sebastian owed her 50 grand and we
10 owed her zero, we'd be able to get our fees and costs
11 out of what the other folks paid her. Does that make
12 sense?
13 MS. COY: If we don't have the offer of
14 judgment, then we're still liable to you for our costs.
15 Is that the bottom line?
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MR. VOCELLE:
That's the bottom line, yes and
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no. In your lease with
Fisherman's Landing Sebastian
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the main lease for the
property to Charlie Sembler's
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corporation, there's a
very extensive indemnity and hold
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harmless provision.
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MS. COY: Yes,
there is.
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MR. VOCELLE:
And we have only recently invoked
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that and it will be up
to Mr. Stringer who's
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representing Mr. Sembler's
corporation to determine
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whether he wants to say no, that doesn't apply, yes, it
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does apply. So there may be another avenue.
If push came to shove, a third and remote
possibility is by saying to her your corporation really
wasn't a corporation, it was really you and so we're
coming after you and not the corporation. But the
bottom line is not so much -- that's a purpose is to
possibly secure payment of attorney's fees. But at the
end of the deposition, I guess it was about 4:00
o'clock, Ms. Hodges was there, but she can't comment
'cause she's a third party neutral, but Brittney was in
tears when I was asking her: You mean to tell me you
signed a lease, its got three exhibits and you didn't
ask anybody to see the exhibits, you didn't call a
lawyer, you didn't call a friend, you didn't call a
life -line, you didn't do anything? And she was very
upset because she invested literally what she described
as her life savings with zero experience, zero help and
just willy-nilly signed the thing.
My feeling is that if we offered her roughly
half of what was perviously offered in the $20,000 to
$25,000 range knowing that she could win the war, maybe
collect against Sembler and what have you, but lose the
battle because we'd dip in and grab that money to repay
our fees, that the case probably has a high probability
of going away if we really offer her some more serious
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money based on her lack of due diligence in going
forward with the transaction in the first place. Have I
articulated that well?
MR. GINSBURG: Yes. Actually, Al surprised us
by making the offer at the meeting that we had and we
were all kind of stunned by it, especially the amount
was $53,000 for a claim that really I feel is meritless.
Bear in mind who would ever think that Councilwoman Coy
was silent when --
MS. COY: I was a guest of the restaurant.
MR. GINSBURG: -- if she saw something she
didn't like which she did and she wasn't silent as a
matter of fact. When I went there I think you called me
and asked me to go see what was going on and I went
there. I sat in the legal area where they had the four
or five tables that they should have had. And
immediately Ms. McManus recognized me and she called her
lawyer Rick Stringer who came in. And he and I both
agreed that they were far exceeding what they were
supposed to do and he was explaining to me how he was
encouraging them to operate within the limits of the
Operating Agreement. So that was the conversation. It
wasn't like we didn't tell them that we were concerned
that they were going beyond what they were supposed to
do, just so you know.
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In any event, Al made the $53,000 offer and
they rejected it out of hand and in a very, you know,
preemptory way as though they were outraged at how small
it was. Of course, we were on the other side of that,
we didn't say anything. And they got up and they left
at that point.
My feeling is we make an offer, $20,000,
$25,000, one of two things is going to happen. They
accept it and the case goes away. And you may be right,
as a result of this definition, both their lawyer has to
be concerned about what they've gotten and the plaintiff
for the first time she, herself, has got to see what's
likely to happen in court down the road. So that's a
good thing. That cuts off fees, costs, expenses, delays
and who knows what along the way, people making public
statements, you know, all kind of stuff. It goes away.
Or they don't accept it in which case they've
got now a burden to overcome in order to avoid paying
extra money out that they hadn't anticipated paying, our
attorney's fees depending on the outcome of the case.
So the reason I wanted this meeting is because
we were talking about this the other day in
Mr. Vocelle's office. He thought and we agreed that
this should be shared with you so that you know what
we're thinking at this stage of the proceedings. It is
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interesting that no one's really being aggressive here.
MR. VOCELLE: Nobody.
MR. GINSBURG: And I'm not sure why. It may be
that the plaintiff is not paying the plaintiff's lawyer.
MR. VOCELLE: I would very much bet he's got it
on a contingency because she has no money to pay
lawyers.
MR. GINSBURG: And so, you know, lawyers who
don't get money aren't all that aggressive. It could be
other reasons, I don't know. But I see nothing -- I
don't see a real downside here. Of course, I agree with
Attorney Vocelle, I've won cases I should have lost and
I've lost cases I should have won. When you're in court
and you're in front of a jury or any judge, strange
things happen. I've seen a million of them. But the
way this case is setting up, I view this as kind of like
a protection for us, a little bit of an insurance policy
to pay some of our legal fees.
MR. HILL: Two quick questions. The first one
is offer of settlement, certainly in the public eye
would be viewed as the City admitting to some fault in
this matter and to have done some wrong in this matter.
Second question would be --
MR. GINSBURG: Hold on to that thought.
MR. HILL: Okay. To go along with that would
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it be the City settled for an undisclosed amount?
MR. VOCELLE: No, can't do that.
MR. GINSBURG: Under Florida law you can't do
that.
MS. COY: Can we discuss it, can we go and say
we gave it to her 'cause we felt sorry for her. Can we
explain our rationale?
MR. HILL: Then the second question is
anticipated attorney's fees to this case. I know that's
impossible, but there's a ball park?
MR. VOCELLE: There's a ball park, sure.
MR. HILL: So if we're going to say 25,000 and,
quite frankly, I'm a little concerned that we're saying
anything and admitting wrongdoing in this regard. If we
don't do that, would we be able to recoup the attorney's
fees if she loses anyway?
MR. VOCELLE: No, not unless it was under the
indemnity provision because in Florida unless there's a
statute that says the loser pays the winner or a
contract that says the loser pays the winner, you
wouldn't be able to. Your contract is with Fisherman's
Landing.
MR. HILL: So you're basically buying insurance
on this case.
MR. VOCELLE: Buying insurance, but there's a
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nuance and Bob said hold that thought. One of the
things that we can do is say we'd be willing to pay you
25,000. If you accept, this is the release that you
have to sign and in the release there would be a
paragraph stating, number one, the City admits no fault
and this payment was made as abusiness decision. And
it can be explained by we have to pay our lawyers that
anyway, that's why we made this amount.
MS. COY: Or we could explain that in clear
English.
MR. GINSBURG: My feeling is if we go forward
with an offer, I would recommend that we do it for less
than half of what we previously offered. So you've got
that already out there, that 53,000, so it would be hard
for somebody to say we are very concerned about the case
by offering 25. We're coming down. In fact, you want
them to be at a level kind of like that because if she
doesn't accept it in two or three months or at another
appropriate time, we could come back with another
offer --
MR. VOCELLE: We could continue to go down.
MR. GINSBURG: That's right. So that's really
less of an admission of any wrongdoing than we want this
to stop.
25 MR. GILLMOR: So you could put a time limit on
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your offer?
MR. GINSBURG: It's 30 days.
MR. VOCELLE: 30 days.
MR. GINSBURG: They have 30 days to think about
it and it goes away. It can't be accepted after that.
MR. VOCELLE: After 30 days if they don't
accept it, it's in the court file. It doesn't go
anywhere else and it's our protection, it's our Band-Aid
so to speak.
MR. GINSBURG: So that's kind of what we're
thinking. I wanted to have this meeting which you all
know I'm really not too in favor of meetings like this
only because it's an exception to the Sunshine Law,
they're very strictly construed by the courts, things
can go wrong. They may not be called correctly or
somebody may make a wrong kind of a statement or do
something, whatever. And Vero Beach got hit with a
million dollars because of some comments that were made
during a session like this. So I'd like to avoid it.
But I felt since we were offering or thinking of
offering at this approximate time an offer of judgment,
that that's something that you all should hear.
MS. COY: I'm with Jim on this one because I
know unless some surprise came out that I know the City
is clear in this issue, I know. And to say I was a
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guest of the restaurant is so ludicrous. I was
prohibited from talking to her. I tried twice and her
attorney and intermediaries who I can name would not
allow me to talk to her. I never spoke to Mrs. McManus
ever and was shocked. And I know the other folks who
were here, I was given the tour of the little window
with the pass-through.
MR. GINSBURG: You never saw the hood on the
restaurant, neither did I.
MS. COY: No. And then when we all get the
phone call what happened, all of a sudden there's an
aquarium. I had no idea. That's when the shit hit the
fan. You can spell that out.
MR. VOCELLE: She's heard it before (laughter).
MS. COY: What if we do nothing? What if we
just sit back and wait for her to do something?
MR. VOCELLE: If you do nothing and the ease
actually goes to trial, you have six people from any
portion of Indian River County whose only qualifications
to be a juror is that they hold a driver's license.
They can be John's Island people, they can be Fellsmere
people or anywhere in between.
MR. GINSBURG: They're not going to be John's
Island people.
MR. VOCELLE: Well, if the trial is May through
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November, they won't be John's Island people. But, at
any rate, some people don't like the cities and they
punish big corporations and municipalities, you just
don't know. I agree with you on the facts, I think it's
a winnable case but, like Bob said, things can happen.
Mr. Hill, you asked about costs. Could the legal fees
in this case exceed $25,000? Of course. If they want
to depose every single witness for a full day, have
multiple hearings on motions for summary judgment, what
have you, sure. Their attorney is not doing a whole lot
right now. We're the only ones that are being
pro -active trying to get the City out of this thing.
I didn't mention that Mr. Stringer is probably
going to be our secret weapon. He's going to have to
disqualify himself at some point because he's going to
be a material witness based on what he told her, even
though she thought and she said in her deposition: I
trusted all these fellows. I just thought they were
helping with the lease. They were kind of representing
everyone. She never asked, that was just an
understanding that she --
MR. HILL: Based on Mr. Stringer's comments in
council about exactly what it was going to be on the
record, on film and he clearly said it was a snack bar.
MS. COY: Over and over.
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MR. HILL: So he's on record as saying that.
MR. VOCELLE: He knows he's going to have to
get out at some point. But what this would do is if his
deposition wasn't taken until 30 days from now, it would
solidify our position and make them come crawling, I
would think, in which case we would say no, it's not 25,
or 20 anymore, we're down to 10 now. But that's
entirely -- because they can't take any official action
today. I'm just explaining what we're thinking now.
MR. GINSBURG: We wanted you to be basically in
on the discussion by having him relate the case.
MS. COY: It goes against my grain.
MR. VOCELLE: You'll be deposed.
MS. COY: I know, I can't wait.
MR. GINSBURG: Cases aren't won in deposition.
MR. GILLMOR: Joe, you said this is not going
to be public knowledge if we do this offer?
MR. GRIFFIN: Well, yes and no. I mean, once
he files this and --
MR. VOCELLE: Well, what goes into the court
file is defendant saying we filed an offer, not the
amount. The amount only goes to her. She can take it
to the press and say, hey, look what I got.
MS. COY: can I take it to the press and say it
was going down, can I?
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MR. VOCELLE: You need to listen to your
lawyer.
WO
MR. GINSBURG: I would say we have Special
Counsel here who's representing the City and we're going
to do what --
MS. COY: I don't like any of this. I think it
makes us look bad. I mean, the rumor out there could be
we're paying her a hundred thousand.
MR. HILL: I wouldn't worry about it making us
look bad as much as I'd worry about saving the
taxpayers' dollars and getting the project going
forward. I'd worry more about that. I do think that is
a point that we need to take into consideration that
we're admitting essentially that we are somewhat at
fault by giving her $25,000 of taxpayer money when five
of us in this room, six, seven, eight of us in this room
believe that we didn't do anything wrong.
MS. COY: I want the public to know that.
MR. HILL: Well, there's only ten people in the
public that care.
MS. COY: No, that's not true.
MR. HILL: We can talk to them on the phone.
MR. GINSBURG: Are we done?
MR. PARTLAN: I'd like the amount to be lower.
18 would be my top dollar.
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MS. COY: Start at 10.
MR. VOCELLE: You can always go down. It's
tough to go up.
MR. GINSBURG: Yes, we can always go down and
going down sends a great message. That's why I'm going
down from 53 to --
MS. COY: Nobody knows that.
MR. GILLMOR: If they have only 30 days and we
have already come from 53,000 down to 25, I think they
would think pretty long and hard about, well, should we
do this? We don't have any money to pay our attorneys
to go further, so try to get --
MR. VOCELLE: And this goes without saying it,
but I would put in a letter to the attorney if we did
something like this, I would bet my bottom dollar he has
this on a contingency basis.
MR. GILLMOR: So he gets a piece of this.
MR. VOCELLE: Well, let's say he wins against
Sembler. Let's say the jury gives him $30,000. They're
going to pay $25,000 to us out of that for fees. That
leaves half the pot for her attorney to get his 40
percent. So now he's kind of at odds with his client
about do I maximize my fee or does she take the money?
It creates a little bit of a conflict for him.
MR. GRIFFIN: The other part of it is too, I
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mean, you can talk about the 5embler Corporation.
That's a 501-C3. So the assets there are, I mean,
virtually nothing.
MR. VOCELLE: Unless she prevailed.
MR. GRIFFIN: Well, yeah.
MR. VOCELLE: I don't know what they would
collect. I don't know what Crab -E -Bill's assets are.
MS. COY: Are we separated in the suit? I
mean, is it --
MR. VOCELLE: Separate parties.
MS. COY: That's what I thought.
MR. GINSBURG: They have a contract.
MS. COY: Yes, okay.
MR. GINSBURG: But not with us. That's why the
claims against us are kind of these nebulous theories
of, you know, fraud by omission kind of a thing which is
kind of a strange thing to look at --
MR. VOCELLE: It is.
MR. GINSBURG: -- but it's not, you know,
here's the contract and you didn't live up to, you know,
paragraph 13 and so on. I mean, that's what you
typically want to see. I think that they're going to
have a difficult time against any of the defendants
because the contract is so clearly saying -- have all
those provisions that say our full agreement is here,
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you know, those kind of things. They admit the things
are attached, they're there.
MR. GRIFFIN: And they also have their exit
letter that they were leaving voluntarily, essentially
breaching the contract.
MR. GINSBURG: And thanking us for cooperating
with them.
MR. GILLMOR: Well, it should be in that file,
if I'm not mistaken, a letter from Rich Stringer to
McManus in July that says this is how this has to go.
You cannot --
MR. GINSBURG: I like the case, it's just a
question of in my mind -- you're the representatives of
the public. I'd like to see the City when the final
accounting is done pay as little money as possible in
defense of this ease.
MS. COY: 20,000.
MR. PARTLAN: 18 to start with.
MR. GINSBURG: We could even wait. I think
there's a motion to dismiss pending filed by
Crab -E -Bill. The next month there's going to be --
MR. VOCELLE: Correct.
MR. GINSBURG: Maybe we could wait until the
judge hears that before we do anything and that way if
the judge dismisses Crab -E -Bill --
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MR. VOCELLE: They're not going to dismiss
Crab -E -Bill. She's got a contract with them.
MR. GINSBURG: I know. But if the judge does
not dismiss Crab -E -Bill, which is likely, I won't go
into all the reasons why it's likely, but it's likely
that it won't be dismissed, that is more of a thoughtful
basis for extending an offer of judgment because the
case will not be easily dismissed.
MS. COY: So let's agree on the number here so
we don't have to do this again.
MR. GINSBURG: No, I don't want you to agree on
the number.
MS. COY: You don't?
MR. GINSBURG: No. This meeting is not for
making definitive determinations.
MS. COY: Where do we do that?
MR. GINSBURG: That would be at Council.
MS. COY: Oh, fun, okay.
MR. GINSBURG: But I don't want to mislead
anybody. This is our attempt to advise you all.
MS. COY: Okay. I feel better now that --
MR. GINSBURG: We have heard from you along
these lines and, certainly, you're the client and we're
going to take all of you into consideration if we do
something down the road.
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MS. COY: It's like being in Vegas and you're
playing Black Jack and you're putting that little
insurance chip out there, I got it.
MR. VOCELLE: And going to a jury is like
playing Black Jack without that insurance (laughter).
MR. GINSBURG: My only fear in this case is
that Mrs. McManus especially creates a sympathetic
figure. You've seen her.
MS. COY: No. I mean, I've seen her, but I've
not talked to her.
MR. GINSBURG: Anybody that's seen her --
MS. COY: She's frail.
MR. GINSBURG: No, she's not frail but she's a
nice lady. And I don't mean the daughter.
MR. VOCELLE: She's a nice lady too.
MR. GINSBURG: To me she seemed not so nice. I
mean, she's the one that rejected everything and threw
it in our face and all this stuff. But the mother who
was there and all over the --
MR. VOCELLE: And I've not yet met her. I
haven't deposed her yet.
MR. GINSBURG: Oh, okay. She, I think, would
come across very well to a jury.
MS. COY: The mother, yes. That's who I was
trying to talk to. They would not allow me.
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1 MR. GINSBURG: She looks like a nice lady and
2 she talks like a nice lady.
3 MS. COY: Yes.
4 MR. GINSBURG: Okay. Thank you all. We're
5 done.
6 MR. VOCELLE: Thank you.
7 (The meeting adjourned at 6:35 p.m.)
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STATE OF FLORIDA )
COUNTY OF INDIAN RIVER
I, Nancy P. Hodges, Court Reporter, certify that
I was authorized to and did stenographically report
the foregoing Special Meeting and that the transcript is
a true record.
WITNESS MY HAND in the City of Vero Beach, County
of Indian River, State of Florida, this 24th day of
May, 2014.
NANCY P. HODGES
Court Reporter
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