061407 Shade Meeting Transcript
STENSTROM. McINTOSH. COLBERT. WHIGHAM & PARTLOW. P.A.
ATTORNEYS AND COUNSELLORS AT LAW
WILLIAM L. COLBERT
FRANK C. WHIGHAM
ROBERT K. MciNTOSH
JAMES J. PARTLOW'
SUSAN W. STACY
MINH N. HAN
VERA L. JUNE
MONICA W. ROTHBAUM
LESLIE S. STEWART
1001 HEATHROW PARK LANE
SUITE 4001
LAKE MARY. FLORIDA 32746
(407) 322-2171
DELAND (386) 668-1479
FAX (407) 330-2379
WWW.STENSTROM.COM
KENNETH W. MciNTOSH
S. KIRBY MONCRIEF
SANDRA K. AMBROSE
OF COUNSEL
r
DOUGLAS STENSTROM
RETIRED
THOMAS E. WHIGHAM
(1952-1988)
'CERTIFIED MEDIA TOR
HIGHLY
CONFIDENTIAL
July 5, 2007
via HAND DELIVERY
Janet R. Dougherty, City Clerk
City of Sanford
300 North Park Avenue
Sanford, Florida 32771
Re: 20/20 Media Holdings - June 14, 2007 Chapter 286 Shade Meeting Transcript
Dear Ms. Dougherty:
The.original transcript of the Chapter 286 Shade Meeting of June 14, 2007 at 1 :15 p.m. is
handed to you for deposit until the proceedings are ~oncluded.
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I shall advise when the transcript if subject to release.
Sincerely,
STENSTROM, MciNTOSH, COLBERT,
WHIGHAM & PARTlO ,P.A.
10/ XU~/lg& -A-/?Mcf
jJCl~
Enclosure
xc: John T. Conner, Esquire (via facsimile 407-648-0233)
Fred Fosson, Risk Manager (via hand delivery)
SERVING CENTRAL FLORIDA
- SINCE 1954-
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MEMORANDUM
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StellStr~ MCIntosh, ~ wb9Jam & partlow, PA
1001 Heatbrow Pari( Lane, SHite 4001
Lak.e Ma~, plonaa 32-746
(407) 32.2.-2.I71
TO:
FROM:
DATE:
Janet R. Dougherty, City Clerk
Lonnie N. Groot, Assistant City Attorney ~
April 6, 2009
SUBJECT: Release of Transcript as Public Record; June 14, 2007;
20120 Media Holdings litigation \"
CC: William L. Colbert, City Attorney
The purpose of this memorandum is to advise you that the transcript of the proceedings
of the CiIlt Co~~rring on June 14, 2007 relating to the 20120 Media Holdings
litiga~_~.~ r~~~~.~ ,.'_ public review and inspection, as public records.
Thank you for your attention to this matter. Please feel free to call with questions.
('
Please call me anytime at the office (407-322-2171) or at my cell phone (3se.7~3685)
if I can be of assistance to you in any way. I answer my cell phone 24 hours a day.
I look forward to seeing you again soon.
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1
CITY OF SANFORD
CITY COMMISSION SPECIAL MEETING
THURSDAY, JUNE 14, 2007
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ORIGINAL
Meeting held at the Railroad Depot Room,
2nd Floor at Sanford City Hall, 300 North Park Avenue,
Sanford, Florida, on Thursday, June 14, 2007 at 1:15
p.m., and transcribed by Donna Cimino, Court Reporter,
Certified Shorthand Reporter and Notary Public, State
of Florida.
APPEARANCES:
MAYOR LINDA KUHN
COMMISSIONER RANDY JONES
COMMISSIONER VELMA WILLIAMS
CITY MANAGER ROBERT YEHL
ATTORNEY KENNETH W. MCINTOSH
STENSTROM, MCINTOSH, COLBERT, WHIGHAM & PARTLOW, P.A.
ATTORNEY JOHN T. CONNER
DEAN, RINGERS, MORGAN AND LAWTON, P.A.
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PRO C E E DIN G S
MAYOR LINDA KUHN: I'll go ahead and call
this meeting to order, Special Meeting of the
Sanford City Commission on Thursday, June the
14th.
MR. MCINTOSH: Mayor, I have called in the
hall with reference to the public notice that's
been issued by the city clerk of the City of
Sanford, and I find no individuals with reference
to anyone who desires to participate in
conjunction with this public meeting.
MAYOR LINDA KUHN:
Okay.
MR. MCINTOSH: And at this time we would
respectfully request the opportunity to meet with
the commission with reference to direction in
conjunction with pending litigation that the City
is a party to, and that litigation is known as
2020 Media versus the City of Sanford. And at
this juncture, we would respectfully request that
the public portion of the meeting be closed and
that we proceed pursuant to Chapter 286.
MR. CONNER: And I just would like to iterate
for the record that the purpose -- why we'd like
to have this meeting, Mr. McIntosh and myself, is
to get the council's guidance and thoughts as to
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how you'd like us to proceed with the litigation.
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MAYOR LINDA KUHN:
o ka y .
So we will then
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close the public meeting. And, Mr. McIntosh, if
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you could close the door.
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MR. MCINTOSH:
I'll do that.
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And, Mr. Conner, you're going to indicate to
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us, please, sir, who you desire to have remain.
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MR. CONNER:
I believe what we've got to have
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is only commission members and Mr. Yehl.
And I
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believe you're a member of the commission as the
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Mayor, correct?
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MAYOR LINDA KUHN:
Yes.
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MR. CONNER:
Yeah.
So from my reading of the
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statute, that's all we can have.
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MR. MCINTOSH: That will satisfy you; is that
right?
MR. CONNER: I believe that's in compliance.
MR. MCINTOSH: Thank you. We're underway. J
MR. CONNER: Well, I'll leave it to the
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commission members as to how you'd like us to
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proceed.
You know, I would like to hear your
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thoughts, how you'd like us to enter the
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settlement negotiations. We've got a mediation
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set for Monday. And, you know, I could give you a
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real up close and personal detailed account, but
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I'm not sure what everybody here knows about this
case, and I'm thinking maybe it's a wise thing to
give you sort of a history.
MAYOR LINDA KUHN:
Yes.
I obviously was not
Mayor at the time.
MR. CONNER:
Right.
MAYOR LINDA KUHN: I don't know -- I think
you were sitting on the commission.
COMMISSIONER JONES: We both were.
COMMISSIONER WILLIAMS: We were.
MAYOR LINDA KUHN:
Both of you were. And I
would like to have a brief update --
COMMISSIONER WILLIAMS:
Update.
MAYOR LINDA KUHN:
-- if possible.
MR. CONNER:
I think that's -- although it's
been five years litigation, I think I can do it in
a relatively succinct fashion.
Back in late 2001, a man named Joel Davis,
who is the principal of a company called 2020
Media Holdings, he became introduced to then Mayor
Larry Dale. And what I'm telling you now is his
account, Mr. Davis' sworn testimony as to how this
happened.
Mr. Dale and Mr. Davis began talks about the
City acquiring bus shelters, transit shelters,
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they call them, from Mr. Davis' company.
And the
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idea apparently was that 2020 would install these
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transit shelters at no cost to the City, free for
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public use, and 2020's end of the bargain was to
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be able to sell advertising space in the shelters.
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These are plexiglass and steel-type structures.
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The City retained the right to approve the
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design, the specifications, the footprint in every
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manner of these shelters.
They were to be placed
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at Lynx stops.
And there's a few Florida statutes
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that say how you have to do it, rights-of-way,
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where you can put them, things of that nature.
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Contract was signed February 16, 2001.
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Mr. Davis has told us in testimony that he
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drafted the contract.
The contract has a few
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provisions that are favorable to 2020 and maybe
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arguably not so favorable to the City; one of
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which is a venue clause which says we're going to
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litigate this case down in Osceola County.
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Mr. Davis is not a native of Osceola County, but
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from what he's told us, has been there for about
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30 years.
It appears to be -- appears to me that
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he is very well politically connected in Osceola
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County and in the City of Kissimmee.
That's my
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understanding at this point.
That's where his
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home base is.
That's where his company has more
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shelters than any other place by a large amount.
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The contract did not include any provisions
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as to the dates 2020 had to perform.
In other
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words, there is no schedule saying, you've got to
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pull permits by a certain date, you've got to
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install a certain number of shelters by a certain
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date.
There's nothing of that sort in the
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contract.
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2020 got a 20-year exclusive license to sell
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advertising space in right-of-ways.
The City
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didn't receive a direct monetary benefit, instead
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there were a couple of charities -- let me tell
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you specifically from the contract -- Boy Scouts
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of America and Women's Club of Sanford.
Each were
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to receive a certain amount of the gross from
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2020's operation under the contract.
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As I said, there were no specific performance
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requirements under the contract.
Some time went
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by.
Again, the contract's entered into on
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February 16th.
We go to May 8th, Mr. Davis
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provides the City 29 pages of new shelter
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worksheets, he calls them.
These are -- this is
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an example -- one-page documents that indicate the
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location of the shelter -- excuse me -- of the bus
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stop, GPS coordinates, a street location and a
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hand-drawn sketch, as it's titled, of what the
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site would look like.
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COMMISSIONER WILLIAMS:
Present that to whom?
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MR. CONNER:
These were forwarded to Jay
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Marder at the City. Most of the work -- most of
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the contact appears to have occurred between
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Mr. Marder and Mr. Davis directly.
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Nick Velovich, who is now in Orange County, I
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believe, his name is on some things.
But it
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appears that -- it appears from the record we have
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that most of the -- that Nick was operating
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pursuant to Jay's instructions.
That's our
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understanding at this point.
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Then a few days later -- about three weeks
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later, 2020 provided the City what they call
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architectural drawings. Now, I'm not -- that's
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the word they're using. What these drawings are,
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are blueprints; they show the detailed
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construction of the shelters, what the shelters
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look like, how they're constructed.
We were
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provided specifications for the concrete slabs
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that will be required. And these appear to have
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corne from the company who actually fabricates
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those, the shelters.
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And just briefly I can show you some more
pages here.
It gives the specs and the manner of
construction for the -- for the shelters. And
that's late May 2001.
The next significant thing is June 29th.
Nick Velovich sends an e-mail to Mr. Davis at 2020
conveying that the City has approved 12 specific
sites, 12 of the 29 he proposed, Mr. Davis
proposed.
He says, per our June 29, 2001 meeting,
the City has authorized 2020 to begin permitting
slash submitting plans slash surveys for the
following sites, and details the sites.
2020 has
indicated they received this message.
Now, the controversy, the disagreement in the
case, surrounds -- the City's position has been
that 2020 failed to perform.
2020's position has
been that we never -- the City never approved the
architectural drawings, not the handwritten
sketches, but the architectural drawings that show
how these shelters are constructed.
And because
the City
and, again, this is the Plaintiff's
position
because the City has not provided
approval for the architectural drawings -- again,
that's the Plaintiff's word -- architectural
drawings -- lacking that approval, 2020 could not
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produce site specific drawings and surveys because
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they didn't have the footprint.
That's from their
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position.
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The next communication we're aware of between
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the City and 2020 was August 22nd, 2001.
This is
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a memo from Nick to -- Nick Velovich to Joel
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Davis, and it says, per a request for an
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information update from Jay Marder, and following
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our June 29 meeting, we are awaiting your
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submittal regarding the following sites outlined
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in the attached memo.
And he attached the
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June 29th e-mail.
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Now, the City's position has been, we were
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waiting for 2020 this whole time, from June, now
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it's August.
We're again saying the ball's in
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your court, please give us some plans.
And,
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again, the Plaintiff's response has been, we were
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awaiting the. architectural drawings to be approved
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so we could create these site specific plans.
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From what we understand right now, it appears that
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there may have been some more communication via
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telephone, but we just don't a record of it and I
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can't tell you that we have a good understanding
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of what each side may have said to each other on
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the telephone, so the impermanence of the spoken
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word is an issue here.
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Jay Marder has not been deposed.
He has
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signed an affidavit which we filed and I used
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today to defeat the Plaintiff's Motion For Summary
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Judgment.
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The other half of this August 22nd e-mail
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says, we are working with our design consultants
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to develop amenities criteria for downtown that
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will include transit shelters.
We are also
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working with Seminole County's design consultants
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to establish similar design guidelines for the
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17-92 area.
We will get back to you as the area
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standards are developed.
And, again, that's from
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Nick to Mr. Davis.
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Mr. Davis has taken the position in his
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deposition that the language I just read to you
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means the City was acknowledging, we'll get back
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to you.
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Now, with the help of some of the engineering
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staff here, the planning staff here, we have
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determined that the 12 approved sites were not in
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any downtown areas for which we were developing
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amenities criteria, and they were not in the 17-92
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corridor.
And we've had an affidavit signed by
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current city employees attaching the map showing
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where the historic districts are, the SC-3, the
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17-92 CRA, and plotting the locations of the 12
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shelters.
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So it's clear, I think, from that exhibit
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that
the City's position is it's clear from
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that exhibit to the affidavit that these 12
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shelters were not in any area that was receiving
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amenities criteria at the time.
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The next significant event that we have paper
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documentation of is December 10.
So, again, the
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City's position is, we approved 12 sites on
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June 29, asked them to begin the permitting
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process, gave them this August 22nd memo saying,
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we're still waiting.
And now on December 10,
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Mr. Marder offers an agenda memorandum requesting
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authorization from the commission to begin the
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notification process to commence termination of
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the agreement with 2020.
Mr. Marder specifically
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asked for permission pursuant to Section 10 of the
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contract to cancel the contract.
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What Section 10 says -- it's titled,
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Termination.
And it says, the City may provide
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the Plaintiff notice of a breach or violation of
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the contract of failure to perform, and it's got
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to be sent certified mail, got to be sent to a
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particular address.
And that if the City does
not receive what the contract calls certified
notice -- in other words, the City must receive a
certified letter that the default was cured within
60 days.
And failing that, the contract
automatically cancels.
So the commission approved
Mr. Marder's request for authority to commence
this termination .process.
And so to be clear, what the City was
required to do under the contract is to give
notice of a failure of violation, send it to a
certain address, send it in a particular manner
and that's all. The contract does not say, we
must give them notice of a 60-day opportunity to
cure.
The contract says, we must give them notice
of a failure of violation.
MAYOR LINDA KUHN:
And the commission
approved?
MR. CONNER:
The commission did approve, did
approve.
And again
MAYOR LINDA KUHN:
Was Larry Dale the Mayor
then at the time?
MR. CONNER:
No.
It was Mr. Lessard.
My understanding is that Larry Dale left the
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first week of April 2001.
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MAYOR LINDA KUHN: Right.
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COMMISSIONER JONES: He was terminated the
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end of March.
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MAYOR LINDA KUHN:
Okay.
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MR. CONNER: And it was a unanimous vote by
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the commission on December 10th to give Mr. Marder
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this authority.
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MAYOR LINDA KUHN: Authority.
Okay.
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MR. CONNER: Now, the December 18th letter
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well, let me start that again.
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A correspondence dated December 18, 2001 was
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authored by Jay Marder in light of the authority
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given to him by the commission. And this letter
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is the center of the controversy in the case, I
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think it's fair to say, the center of much of the
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controversy.
The City's position is that this
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letter provided notice pursuant to Section 10 of
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the contract of 2020's violation, their failure to
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perform.
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The Plaintiff's position has been that this
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letter immediately cancelled the contract, which
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is a material breach, which means we wrongfully
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terminated the contract.
That's the crux of their
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case.
That by this December 18, 2001 letter we
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immediately cancelled the contract and did them
wrong, caused them damages.
That's their
argument.
Mr. Marder has signed an affidavit which says
he personally drafted this letter, and the intent
of this letter was to provide 2020 notice of their
violation.
The thrust of the Plaintiff's argument is
that this December 18th correspondence says, the
City hereby provides 2020 with notice of
termination of the said agreement.
Mr. Marder
used the phrase, notice of termination.
And the
Plaintiff moved for summary judgment saying this
is a clear violation.
So as a matter of law, they
asked the judge to declare that we breached the
contract.
The City's position is this letter was
authored with authority of the commission to act
pursuant to Section 10 of the contract. The
City -- the letter specifically says the City's
acting in accordance with Section 10 of the
contract.
COMMISSIONER JONES:
Now, how does
Section 10 of the contract read again?
It sounds
like Jay used the exact wording they used.
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MR. CONNER:
I can read you the whole thing
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because it's not very lengthy.
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It's titled, Termination.
If 2020 Media
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fails to fulfill any obligation hereunder or
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violates any material covenant, term or condition
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of this agreement, the City shall give its written
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notice of such failure or violation. Again, only
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required to give written notice of failure or
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violation.
If such failure or violation is not
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cured within 60 days from the date Plaintiff 2020
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Media is sent notice
not received notice but is
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sent notice -- then the agreement shall be
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considered terminated with no further notice
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required unless the City is notified by certified
15
letter that 2020's default has been cured.
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MAYOR LINDA KUHN:
So we sent them a letter
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December --
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MR. CONNER:
18, 2001.
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MAYOR LINDA KUHN:
Did they respond within 60
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days?
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MR. CONNER:
Well, the contract says they
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must respond via certified letter.
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MAYOR LINDA KUHN:
Right.
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MR. CONNER:
59 days after we sent the
25
letter --
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MAYOR LINDA KUHN:
Oh, well.
MR. CONNER:
-- indeed -- which was a Friday,
at 4:48 p.m., we received a fax -- excuse me --
Jay Marder was sent a fax, I should say.
MAYOR LINDA KUHN: A fax? Not a certified
letter?
MR. CONNER:
Correct.
MAYOR LINDA KUHN:
Okay.
MR. CONNER: And this was also part of our
argument today against his Motion For Summary
Judgment.
MAYOR LINDA KUHN:
Didn't you just read what
the contract says, by certified mail?
MR. CONNER:
It does.
It does.
This letter says, if the City should attempt
or purport to terminate this agreement, it would
surely result in litigation.
So our argument is, has always been, that
even 2020 back then was not contemplating this
December 18th letter as immediate termination.
Even their own counsel was talking about
termination in the future.
The first -- the first record I can see of
anybody from the Plaintiff's side calling our
December 18th letter an immediate termination is
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an August 27, 2002 correspondence to then city
2
manager Thorpe (ph) from the Plaintiff's attorney.
3
So our letter is dated December 18, 2001.
There's
4
the back and forth, which appears I believe to
5
show -- well, at least I think it's arguable --
"'"
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there's a colorable argument that the parties at
7
the time were not contemplating the December 18
8
correspondence as immediate termination, and the
9
first time anyone for the Plaintiff indicated it
10
was immediate termination was August 2002.
11
COMMISSIONER JONES: Now, as far as the City
12
is, I mean, where does that put us as far as the
13
City? Are we assuming that it's terminated?
14
MR. CONNER: Well, the City's position has
15
always been that the December 18th letter
16
MAYOR LINDA KUHN:
Is termination.
17
MR. CONNER: Well, our position in the
J
18
litigation has always been that gave them
19
notice --
20
MAYOR LINDA KUHN:
Of 60 days.
21
MR. CONNER:
-- notice of a violation, more
22
specifically.
23
MAYOR LINDA KUHN:
Right.
24
MR. CONNER: And the contract -- by operation
25
of the contract they had 60 days.
Because, again,
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25
we weren't required to say, you have a 60 days
opportunity to cure.
We were simply required to
say, you're in violation.
The Plaintiff's argument has been that there
was no material violation of the contract on their
part.
And I've explained to you our position,
which has always been the same.
Their position
is, there is no standard for performance under
contract, there is no timeline, there is no
contractual obligation to provide the City
architectural drawings or site plans.
And, again,
they say, we couldn't have provided you
architectural drawings or site specific plans
because you hadn't approved the shelter design.
And the contract does give the City the power to
approve the shelter design.
MAYOR LINDA KUHN:
And there was
correspondence from Nick, the City had approved 12
sites?
MR. CONNER:
12 sites.
MAYOR LINDA KUHN:
Okay.
COMMISSIONER JONES:
Well, are they arguing
the sites are one thing, the designs are other?
MR. CONNER:
Well, what they're arguing is,
if it's true that -- well, they're arguing two
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1
things.
First, they could have waited -- and
2
Mr. Davis has said this in his deposition.
2020
3
could have waited until the 11th -- I'm sorry --
4
the 11th month of the 20th year --
5
MAYOR LINDA KUHN:
I was going to say 20
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years to be in compliance.
7
MR. CONNER:
installed one shelter,
8
removed it the next day and been in complete
9
compliance with the contract.
10
MAYOR LINDA KUHN: And who approved this
11
contract with the City?
12
COMMISSIONER JONES:
Let's go to fair and
13
practical business practices.
Let's go down that
14
road.
15
MR. CONNER: Well, as a matter of law, I
16
can't tell you that he's wrong.
17
COMMISSIONER JONES:
Technically.
18
MR. CONNER:
I think their position
is
J
19
colorable, as is ours, as is ours.
But there is
20
no contractual obligation
their position is
21
there is no contractual obligation to install
22
these shelters.
That's the position they've
23
maintained this whole time.
24
This case is going to be tried, if it's
25
tried, in Osceola County.
This contract includes
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1
a venue provision that says it gets tried in
2
2020's --
3
MR. MCINTOSH:
Territory.
4
MR. CONNER:
their home territory.
5
Now, I do think that is a significant issue
r'
\.
6
to be considered when you value the case.
7
MAYOR LINDA KUHN:
Isn't that advantageous to
8
the Plaintiff? Well, wait a minute.
I mean, I'm
9
not a lawyer, but you just said there is no
10
contractual obligation for the Plaintiff to have
11
done anything.
12
MR. CONNER:
That's their position.
13
COMMISSIONER JONES:
That's kind of -- see,
14
and here's my position on it.
I mean, I know
15
there's --
16
MAYOR LINDA KUHN: Why would you even have a
17
contract then?
18
MR. CONNER: Well, let me tell you.
Like I
19
mentioned earlier, I defeated their Motion For
20
Summary Judgment this morning.
21
MAYOR LINDA KUHN:
Thank you very much.
22
MR. CONNER: Happy to do it.
23
MR. MCINTOSH: Who was the judge?
24
MR. CONNER:
John Kest.
It was Judge Stroker
25
for a couple of years and now it's John Kest.
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1
And I moved for summary judgment when the
2
case was in front of Stroker.
And my argument
3
was, Judge, when you make a contract and you're
4
promising to do nothing, that's an elusory
5
promise --
6
MAYOR LINDA KUHN:
Right.
7
MR. CONNER:
-- that is insufficient
8
consideration, and this contract should therefore
9
be void from day one.
And we had some case law to
10
that effect.
The motion was heard.
The Judge
11
reserved ruling.
And the motion was heard at a
12
time when 2020 was unrepresented.
And, of course,
13
a corporation cannot represent itself through a
14
non-lawyer.
Not like a private person or a sole
15
proprietorship.
16
So 2020 got new counsel who appeared at a
17
second hearing, and they were able to raise
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sufficient question as to the state of the law on
19
lack of consideration. It's also called lack of
20
mutuality of obligation. And in the Fifth
21
District that law has changed and it is very, very
22
difficult, as evidenced by this circumstance, to
23
win a claim for -- a Motion For Summary Judgment
24
based on lack of mutuality of obligation.
Even
25
where Mr. Davis testified he could have waited to
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1
the 11th month of the 20th year, installed one
2
shelter, removed it the next day, even that was
3
sufficient obligation apparently.
4
COMMISSIONER JONES:
See, and he said that on
r
\...
5
record?
6
MR. CONNER:
He -- he has testified to that
7
effect.
Absolutely.
8
COMMISSIONER JONES:
There's one of two
9
things here.
Either (a) it's a complete ruse
10
and a -- I'm not going to say the scam word -- but
11
why then the whole time just to -- I mean, they're
12
saying -- I mean, that's a brash statement to
13
make.
14
MAYOR LINDA KUHN:
Who signed this contract
15
on behalf of the City?
16
MR. CONNER:
I believe Mr. Dale signed as the
17
Mayor, it was witnessed by Ms. Davidson and Roger
18
Dixon.
And, of course, Mr. Davis signed on behalf
"
19
of the Plaintiff.
20
MAYOR LINDA KUHN:
I mean, it might obviously
21
be a moot point.
But for future, any contracts --
22
I mean, does the Mayor have the absolute authority
23
to sign without the commission's approval?
24
MR. CONNER: There was commission approval.
25
MR. MCINTOSH: There was commission approval.
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1
MAYOR LINDA KUHN: All right.
You did say
2
that.
That's right.
3
COMMISSIONER JONES:
It was presented as, you
4
know, we'll provide shelter at the bus stops.
5
MAYOR LINDA KUHN:
That's right.
Okay.
6
COMMISSIONER JONES: And it's a fine idea.
7
And there's different things from different
8
companies allover town.
9
MR. MCINTOSH:
Who's going to try the case
10
for the Plaintiff?
11
MR. CONNER: A man named Mike Tessitore.
12
MR. MCINTOSH: Okay.
13
MR. CONNER: He is a former partner of
14
Akerman, I believe
15
MR. MCINTOSH:
Yes.
16
MAYOR LINDA KUHN: Akerman, Senterfitt?
17
MR. CONNER:
I believe so.
I'm not certain
18
on that, but I believe that's the case.
And he is
19
now -- he now has a practice with an attorney
20
named Brett McClain. And from what I can see,
21
it's a two practice. Both very well respected
22
attorneys.
23
MAYOR LINDA KUHN:
Okay.
24
COMMISSIONER JONES:
If he in his bold
25
statement says, we don't have to do anything until
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the 11th hour and we can put one shelter up and
that satisfies, and he has made no financial gain
whatsoever for 20
for 19 point 9 years, managed
to make, you know
I don't know -- a thousand
dollars in the last month of -- the last -- you
know, of the contract, what's the damages? Where
is the harm? Where is his damages?
MR. CONNER:
2020 has contracts with about a
dozen other governmental entities, Brevard County,
Cocoa, Palm Bay, Rockledge, Osceola, Kissimmee,
St. Cloud, Daytona Beach, Deltona, New Smyrna
Beach, Sumpter County and Putnam County.
They
have operational right now, 102 shelters.
MAYOR LINDA KUHN:
And all of those
enumerated --
MR. CONNER:
Right.
In total.
MAYOR LINDA KUHN:
Only 102?
MR. CONNER:
Only 102.
Well, I've been told
in informal conversation that 2020 has acquired
some more shelters in the City of Kissimmee that
were erected by another company or at least
another individual, and so they may be up to 110
now.
I don't know that yet.
I'm going to take
Mr. Davis' deposition tomorrow.
MAYOR LINDA KUHN:
So what kind of income
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1
does he derive off of 102 shelters?
2
MR. CONNER:
Well, that's an interesting
3
point.
Osceola County, Kissimmee and St. Cloud,
4
they appear to be profitable.
5
MAYOR LINDA KUHN:
Right.
6
MR. CONNER:
They do not appear to be
7
profitable in Brevard, Cocoa, Palm Bay, Rockledge,
8
Daytona Beach, New Smyrna Beach and Cocoa.
9
COMMISSIONER JONES:
I wouldn't think so.
10
MR. CONNER:
Their experts are Dr. Henry
11
Fishkind and a man named Byron Waldon, who is an
12
associate of his.
13
MAYOR LINDA KUHN:
Fishkind, that's
14
interesting.
15
MR. CONNER:
Byron Waldon's a CPA.
He is the
16
CFO of the Fishkind business entity, Fishkind and
17
Associates.
18
What they have done in their expert report is
19
to focus on the Osceola County, Kissimmee and
20
St. Cloud operation, and say, that is a profitable
21
operation and Sanford would have been the same.
22
MAYOR LINDA KUHN:
How do we know that
23
Sanford would have been the same? Based on their
24
expertise?
25
MR. CONNER:
That is their assertion.
I do
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2
3
4
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8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
not see -- in their list of documents, which they
relied upon, I do not see anything that would
appear to correlate Sanford to Osceola County. I
don't see anything in the list of documents they
used, I don't see anything about car counts, I
don't see anything about advertising revenue for
similar businesses.
So the strength of their legal argument is
whether they are going to be under a contractual
duty to do anything.
The weakness of their case I
believe at this point is their damages aspect. It
may be that Mr. Fishkind is going to be able to
enlighten us all as to why Sanford is so similar
to Osceola County, Kissimmee and St. Cloud, But I
don't see anything in their expert report that
indicates why they made that correlation.
I think
our position at trial will be -- it's very clear
the reason they're focusing on that location is
because it's the profitable one.
COMMISSIONER JONES:
Did Fishkind and
Associates, did they also provide the intelligence
information for Rockledge, and Palm Bay and
New Smyrna?
MR. CONNER:
No.
There's nothing -- what
they relied on, what the Plaintiff's experts
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1
relied on is filings in the case, pleadings,
2
motions, things of that nature, and the
3
Plaintiff's financial information, which included
4
tax returns and unaudited financial statements.
5
MAYOR LINDA KUHN: Well, how does that relate
6
their expertise to the income that they would have
7
derived on advertising?
8
COMMISSIONER JONES: What I'm trying to find
9
out is, he's an expert that's saying Kissimmee is
10
profitable and he's the expert saying that Sanford
11
would have been profitable.
Is he the same expert
12
that said these losing propositions were
13
profitable?
14
MR. CONNER: Well, they haven't offered any
15
opinions about any of the -- the Plaintiff's
16
experts haven't offered any opinions about the
17
profitability of any of the Plaintiff's operation
18
aside from the Osceola County -- Kissimmee,
19
St. Cloud, Osceola County.
That's what they're
20
focusing on.
21
Because those are the
MAYOR LINDA KUHN:
22
profitable ones.
23
COMMISSIONER JONES: Right.
24
MAYOR LINDA KUHN: Do we have any experts on
25
our behalf?
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1
MR. CONNER: We have retained CPA Gary Worzak
2
(ph), who is a forensic accountant.
He's also an
3
attorney.
He's been around for quite some time.
4
We also have retained the services of Dr. Fred
5
Raffa, who is very well respected in commerce.
,...
\..-
6
COMMISSIONER JONES:
You know what? He
7
teaches at UCF, or he did.
8
MR. CONNER:
I wouldn't be surprised.
9
COMMISSIONER JONES:
He was my Economics 101
10
professor, Fred Raffa.
11
MR. CONNER: And he's a very good witness.
12
He's a very good witness.
13
MAYOR LINDA KUHN: Well, but I think -- I
14
mean,
I just briefly -- I guess it was
15
yesterday -- we have some file here that
or,
16
no, it was Monday
looked at some of the
17
correspondence, I think, that had taken place, and
('
18
I think it,was as a result of the depositions of
19
Diane Cruz and Larry Dale that were taken.
20
MR. CONNER: Well, those were meetings.
21
Those were meetings. And let me tell you, I did
22
speak with Mr. Dale and Ms. Cruz.
There are
23
aspects of what they told me --
24
MAYOR LINDA KUHN:
That would be very
25
detrimental to the City.
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1
MR. CONNER:
-- that could be damaging to
2
the liability case, and that absolutely must be
3
considered.
4
Now, they have been named as trial witnesses
5
for the Plaintiff.
They are on the Plaintiff's
6
trial witness list.
7
MAYOR LINDA KUHN:
Right.
8
They have not been deposed.
MR. CONNER:
But
9
there is nothing stopping representatives of the
10
Plaintiff from going to talk to them and just call
11
them at trial.
I mean, that could be done.
12
MAYOR LINDA KUHN:
Right.
13
MR. CONNER:
So that's something else to
14
consider.
15
And we've also got to remember where we're
16
trying the case.
It's a very different venue than
17
Seminole County.
18
MAYOR LINDA KUHN:
So we're set for
19
mediation --
20
MR. CONNER: Monday.
21
MR. MCINTOSH: Monday.
22
MAYOR LINDA KUHN:
-- Monday?
23
MR. CONNER: We have engaged the services of,
24
I think, uniformly agreed the best mediator in
25
Central Florida, his name is Steve Sawicki.
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1
5
MAYOR LINDA KUHN: I know Steve.
MR. CONNER: He's, I hear, quite a tennis
player as well.
MAYOR LINDA KUHN: I know Steve very well.
MR. CONNER: We'll be in his office Monday.
MAYOR LINDA KUHN: I do.
2
3
4
6
'-'
7
MR. MCINTOSH:
I know you do.
8
COMMISSIONER JONES: What are they asking
9
for? Have they attached a dollar amount to it?
10
MR. CONNER:
They have now.
11
MAYOR LINDA KUHN:
I thought we made an offer
12
of $100,000 at some point.
13
MR. CONNER: Well, we discussed the option of
14
doing that.
15
MAYOR LINDA KUHN: Okay.
16
COMMISSIONER JONES: I would offer them what
17
it would cost to rent one shelter for advertising
18
for one month.
19
MAYOR LINDA KUHN: Ask Steve if he still
20
plays in a band.
21
MR. CONNER:
Now, the City has authorized
22
us -- and, actually, Mr. Yehl signed a letter for
23
us which we have sent to Plaintiffs's counsel
24
which has essentially said, come on back and
25
perform.
You know, I certainly see the logic
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1
that -- and I think it's very easily stated that
2
it will be beneficial to the citizens to have
3
transit shelters.
I don't think anybody's
4
disputing that.
5
MAYOR LINDA KUHN: As long as they comply
6
with the design standards that we'd like to see at
7
this point in time --
8
COMMISSIONER JONES: Now.
9
MAYOR LINDA KUHN: -- now.
10
MR. CONNER:
Certainly. And the contract
11
does provide the City authority to approve each
12
site
13
MR. MCINTOSH: Sure.
14
MR. CONNER: -- and the structure and design
15
of each, so that could be done.
16
Now, we have been hearing throughout the
17
pendency of this litigation that the value of the
18
case for the Plaintiff was the fact that it's a
19
20-year contract, that they could be here for 20
20
years.
21
Since we flirted with the idea of inviting
22
them back, the Plaintiff's expert report has been
23
complete and they have significantly back-loaded
24
their damages claim.
So instead of saying it's
25
worth a million dollars in the next 20 years, what
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10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
they say is their future damages would have been
$400,000 and their past damages are $687,000, and,
of course, they claim interest on that.
So their
total damage claim right now is one point 15
million dollars.
I think -- and in discussing this with
Mr. Worzak and Mr. Raffa, Dr. Raffa, I think there
are some significant arguments to be made to
attack the damages claim. And we just have to
keep in mind we're going to be trying this in
Osceola County, and there is the possibility for a
jury to believe their case.
There is the
possibility that a jury will buy this argument
from beginning to end.
COMMISSIONER JONES: Where would the jury --
how would a jury factor into being on his, quote,
buddy list? I mean, I can understand if you went
through election records and pulled financials and
see where he'd -- you know, supported people left
and right.
But where would a jury fit into that?
MR. CONNER:
I'm believin' we could
probably -- and this is certainly -- I can't tell
you the state of the law with certainty. But
because he, this Plaintiff, this corporate
Plaintiff, does appear to have some friends in
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1
elected positions in Osceola County, we would be
2
likely be able to strike anybody who is an elected
3
official.
Now, we could also prove an argument to
4
strike anybody who works for an entity with whom
5
the Plaintiff has a political connection.
That's
6
something we would certainly do.
7
So I don't think we have to worry -- well,
8
it's less likely that we'll have to have somebody
9
on the jury that actually is an elected official
10
or works for one of the agencies for whom the
11
Plaintiff appears to have a political connection.
12
And we'll establish all that.
13
Tomorrow I'm deposing Mr. Davis on the
14
financial aspect of the case, the damages aspect
15
of the case.
He is being produced as the
16
Plaintiff's representative with the most knowledge
17
of their finances.
18
MAYOR LINDA KUHN: When did they actually
19
file this lawsuit?
20
MR. CONNER: November of 2002.
The
21
August 27th, 2002 letter I spoke of earlier, which
22
is the one which was the first to say, our
23
December 18 letter immediately terminated the
24
contract, 60 days after -- they purport to give us
25
60 days to cure our breach and then sue us.
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1
2
3
4
'-' 5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COMMISSIONER JONES: What was our breach?
MR. CONNER:
Their position is that we
immediately cancelled the contract with that
December 18, 2001 correspondence. And we have, as
I've described --
COMMISSIONER JONES:
But didn't we use their
exact term, this serves as notice of termination?
MR. CONNER:
Correct. And that's the core of
their argument, that we said -- what the Plaintiff
argues is, our letter says, here is notice of
termination.
That means the contract is over.
And as I have described, we have a colorable
argument against that, that is supported by the
law, supported by fact -- I believe it's arguably
supported by fact.
I think we need to be very cautious when
evaluating the liability aspect of this case.
MAYOR LINDA KUHN: And cautious in what way?
MR. CONNER: We did not get summary judgment
calling it an elusory contract.
There are no
contractual obligations -- this is the Plaintiff's
view here, is, there was no contractual duty the
Plaintiff violated.
That's what they're arguing.
I just am concerned that there is a likelihood
that when both liability cases are in front of a
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1
judge or jury, they may choose to accept the
2
Plaintiff's version over ours.
3
MAYOR LINDA KUHN: Well, that's in any
4
lawsuit, you know.
5
MR. CONNER:
Well, that's -- I think that's
6
something that is worthy of significant
~
...I
7
consideration under the facts here.
8
MR. YEHL:
50/50? 60/40? 75/25?
9
MR. CONNER:
Well, in a way you can never be
10
wrong unless you say it's a hundred percent one
11
way or the other.
12
MAYOR LINDA KUHN:
You can never second guess
13
what a jury is going to do.
14
MR. CONNER:
That's true. And I really think
15
we got to remember where we are, where the trial
16
will be.
17
MAYOR LINDA KUHN:
So as far as mediation is
18
concerned~ what would our best, I guess, bottom
~
...,;
19
line --
20
MR. CONNER: And, you know, I should tell
21
you, from what we know -- as I've mentioned, we
22
have taken Mr. Davis' deposition on the liability
23
aspect, so we know some of his background from his
24
testimony there.
He's been a businessman for,
25
like I said, 30 years in Osceola County.
He's
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been in involved in two prior lawsuits I know
2
about.
3
MAYOR LINDA KUHN:
Has he prevailed?
4
MR. CONNER:
He's won one and lost one.
5
MAYOR LINDA KUHN:
Okay.
6
MR. CONNER:
He's already been in bankruptcy
'-'
7
once; one of his prior entities, that is,
8
construction entity.
9
MAYOR LINDA KUHN: Were they similar based
10
on
11
MR. CONNER: No.
They were -- he tried to
12
develop a planned unit development.
13
MAYOR LINDA KUHN:
Oh, okay.
14
MR. CONNER: And I can't tell you I know the
15
details with specificity, but something went wrong
16
and it ended up in bankruptcy.
That's my
17
understanding. And I can't tell you that's the
18
gospel --
,",
19
MAYOR LINDA KUHN:
Okay.
Okay.
20
MR. CONNER:
-- because that's not something
21
we looked too much into, but we've certainly made
22
reasonable discovery efforts. And his testimony
23
has been that he's been in two trials.
So I
24
believe he is committed to try the case if he
25
can't get a number he's happy with.
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MAYOR LINDA KUHN: And his number is one
2
point two million?
3
MR. CONNER:
I'm
I'm certain that he would
4
compromise that number.
I'm certain of that.
5
MAYOR LINDA KUHN: And they're not willing to
~
"""'"
6
come back at this point in time and --
7
MR. CONNER:
Well, what we've done is give
8
them the offer and said it's good
9
MAYOR LINDA KUHN:
I mean, it was a 20-year
10
contract --
11
MR. CONNER:
Right. And he would have 19
12
years two months.
13
MAYOR LINDA KUHN:
He still has -- yeah.
14
MR. CONNER:
In other words, in order
and
15
the strength from a litigation standpoint
16
MAYOR LINDA KUHN:
Can't we renegotiate the
17
contract before he comes back?
18
MR. CONNER:
I don't think there's anything
J
19
stopping the City from renegotiating the contract
20
after he returns, or at least attempting to do so.
21
MAYOR LINDA KUHN:
Right.
22
MR. CONNER:
You know, we'd have to look at
23
it as a new issue, but it's certainly a subject I
24
believe you can broach.
25
MAYOR LINDA KUHN:
Right.
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MR. CONNER: As to his drop-dead number, I
2
truly don't know what that would be.
I haven't
3
received any kind of indication from that.
4
I believe Mr. Sawicki is very good at
5
handling difficult cases.
It hasn't been that
'-
6
long since I've used him on very difficult cases.
7
MAYOR LINDA KUHN: Where is the mediation
8
taking place?
9
MR. CONNER: We've agreed to have it at
10
Mr. Sawicki's office, 20 North Orange.
11
MAYOR LINDA KUHN:
Is this a mutual agreement
12
on who the mediator is going to be?
13
MR. CONNER: Actually, we pushed for
14
Mr. Sawicki.
I think, you know, he's
there are
15
all types of mediators out there, and some are
16
more economical than others, but you have to know
17
when you need a strong mediator and I think this
'''"-,
18
is a case.
19
So I'm hopeful for Monday.
You know, I
20
think -- my understanding is it's not appropriate
21
for us to have any kind of decisions made here
22
today as far as that goes.
23
MAYOR LINDA KUHN:
Well, I think we're here
24
to give you guidance --
25
MR. CONNER:
Exactly.
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1
MAYOR LINDA KUHN:
-- as far as how far we
2
want to go with this.
3
MR. CONNER:
Exactly. And that's sort of the
4
crux --
5
MR. MCINTOSH: Velma has a question.
~
'11
6
MR. CONNER:
Yes.
"""'"
7
COMMISSIONER WILLIAMS:
I kind of remember
8
this case, but I don't remember exactly what we
9
voted for Mr. Jay Marder to do.
Was that -- I
10
know it was unanimous.
But it was to send a
11
letter communicating failure -- notice of failure
12
or violation, or was the letter sent to
13
communicate termination?
14
MR. CONNER:
Well, the intent of the letter,
15
what we requested -- let me tell you the specific
16
language.
17
COMMISSIONER JONES:
Well, the intent of the
18
letter would have been to give notice of the
J
19
COMMISSIONER WILLIAMS:
I understand the
20
intent, but I just want to know exactly what it
21
says.
22
COMMISSIONER JONES:
-- notice of the
23
termination pursuant to the wording of the
24
contract.
This is how he wants to go.
This is
25
how we're going to do it.
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MR. MCINTOSH: What did the meetings of the
2
minutes say with reference
3
COMMISSIONER WILLIAMS:
Yes.
That's what I'm
4
trying to find out.
5
MR. CONNER:
Here's how the minutes read.
"""
6
Commissioner Stein moved to authorize
7
notification process to commence termination of
8
the agreement with 2020 Media due to
9
nonperformance.
Seconded by Commissioner
10
Williams, and carried by the vote of
11
Commissioner (inaudible)
12
COMMISSIONER JONES:
So the vote was to --
13
MR. CONNER:
It was to commence the
14
termination process.
That's what the vote says.
15
COMMISSIONER JONES:
The process.
16
COMMISSIONER WILLIAMS:
The process.
That's
17
what I was trying to find out.
18
MR. CONNER:
Right.
That's what the vote
19
said. And Mr. Marder has signed an affidavit
20
saying that's what he was trying to do.
21
MR. YEHL:
You mentioned that the contract
22
still had 19 years and two months?
23
MR. CONNER: Well, I think the strength of
24
the offer to return, from -- for purposes of this
25
litigation --
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MAYOR LINDA KUHN:
Right.
2
MR. CONNER:
is to allow us to stand in
3
front of a jury and say, we asked them to come
4
back.
If this was so profitable, why didn't they
5
come back?
~
...."
6
MAYOR LINDA KUHN:
Right.
7
MR. CONNER: And because of that, you know,
8
to preserve the usefulness of that offer at trial,
9
we've got to make it an unconditional offer.
10
That's been our position. Anything less than an
11
unconditional offer, I fear could be argued at
12
trial by the Plaintiff as a hoax on our part.
13
MR. YEHL:
But we are not saying that the
14
contract has already lapsed five years?
15
MR. CONNER: No. In other words, the offer
16
to the Plaintiff was come back and serve out the
17
contract, which is about 19 years and two months.
~
18
Because the contract began on February 16, '01 and
19
would have terminated 60 days after.
20
COMMISSIONER JONES:
Have they responded to
21
that?
22
MR. CONNER:
No. And we've given them the
23
deadline of the mediation date, Monday.
24
MAYOR LINDA KUHN:
Okay.
25
COMMISSIONER JONES: What time's mediation?
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1
2
3
4
5
6
'~
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR. CONNER: Now, at mediation we can choose
to leave the offer open or not.
COMMISSIONER JONES:
Sure.
But what times
the mediation?
MR. CONNER:
It's set for nine o'clock in the
morning.
COMMISSIONER JONES:
I'd expect a letter
about 8:30 in the morning sent by a fax machine.
MR. MCINTOSH: What date did Mr. Yehl remit
the letter to them telling them that they could
continue with the contract?
MR. CONNER:
It has -- we actually sent two.
We sent one to prior counsBl.
The Plaintiff got
new counsel about a month ago.
MAYOR LINDA KUHN: Who is their counsel?
MR. CONNER:
Right now it's Mike Tessitore,
McClain, Tessitore, it's a two-man firm.
MAYOR LINDA KUHN:
Do we know him, Ken?
MR. MCINTOSH:
Yeah. We know him from the
Akerman group though.
MAYOR LINDA KUHN:
But that's it?
MR. MCINTOSH: Yeah.
MR. CONNER: Prior to that it was John
Dannecker of Shutts and Bowen.
MR. MCINTOSH:
I don't know him.
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1
MR. CONNER: And so it's been probably about
2
a month since the first
3
MAYOR LINDA KUHN:
From Shutts and Bowen?
4
MR. CONNER:
Yes.
5
MAYOR LINDA KUHN:
There is some irony here,
6
isn't there?
7
They were conflicted out.
MR. CONNER:
8
I was going to say, in
MAYOR LINDA KUHN:
9
their conflict there?
10
MR. CONNER: Absolutely. As soon as they
11
discovered it, they went to us and offered a
12
condition not to waive it.
I mean, you certainly
13
can't waive a conflict like that.
14
The plot thickens.
MAYOR LINDA KUHN:
15
Is the letter from Mr. Yehl
MR. MCINTOSH:
16
very clear that they can return to the
17
unconditionally return and fulfill the terms of
18
the contract?
19
I believe it is. And the
MR. CONNER:
20
Plaintiff has actually requested clarification on
21
that very point. And we have told them, yes, it's
22
an unconditional offer.
So the record, I think,
23
is pretty clear that we made an unconditional
24
offer.
25
COMMISSIONER JONES:
Is the Plaintiff -- and
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1
2
3
4
r 5
\..- 6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the same current contract guidelines would still
stand?
MR. CONNER:
It would have to.
MAYOR LINDA KUHN: Well, that's why I said,
at some point if we could renegotiate the
contract.
COMMISSIONER JONES:
So we could still not
have anything -- we could still not have the first
transit shelter for someone who needs to ride the
bus to work until 2030.
MAYOR LINDA KUHN: Now, is there any other
type of clause in this contract that, let's say,
someone else comes in at a future date and wants
to build shelters at other locations? I mean,
there's no --
MR. MCINTOSH:
This is an exclusive contract
license to.
MR. CONNER:
Exclusive contract to sell ad
space on transit shelters in the City
right-of-ways, an exclusive offer for 20 years.
That's the terms of the contract.
MAYOR LINDA KUHN:
That's a nice contract.
MR. CONNER: And--
MR. MCINTOSH: What are the impediments in
the testimony of Dale?
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1
MR. CONNER: Well, he hasn't testified.
2
MR. MCINTOSH:
What are the impediments in
3
the meeting that you had with Dale?
4
MR. CONNER: Well, both -- you know, Mr. Dale
5
didn't have a very clear recollection.
It sounds
6
like his recollection
all I can
and, you know,
7
do is paraphrase what he's told us.
8
MR. MCINTOSH:
Thank you.
9
MR. CONNER:
He was -- he thought it was a
10
good idea.
He thought this contract was a good
11
idea.
He seems to have a recollection that some
12
of the city employees were against the contract.
13
I think if he were to testify, he would probably
14
indicate that.
He's got a manner of speaking
15
that, I think, he -- he strongly expresses his
16
opinions.
17
MAYOR LINDA KUHN: You think?
18
MR. CONNER: Well, I'm trying to be
19
MAYOR LINDA KUHN:
Yeah.
But Diane was more
20
clear.
21
MR. MCINTOSH: What about Diane Cruz? What
22
did she
23
MAYOR LINDA KUHN:
Her's was far more clear,
24
from what I've read.
25
MR. CONNER:
She -- she also has
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1
recollections about Mr. Marder, who is the same
2
person Mr. Dale seems to recall having opinions
3
about this contract.
And if Ms. Cruz were to
4
testify, it would certainly strengthen the
5
Plaintiff's liability case.
I think it would
~
6
that testimony, if it's consistent with what I
7
understand her recollection would be, would paint
8
Mr. Marder in a negative light, and would be very
9
damaging to the -- may be very damaging to the
10
liability case depending on how she testifies.
11
All I can tell you is my recollection of what
12
her memory was at the time.
13
COMMISSIONER WILLIAMS: What was it?
14
MR. CONNER:
I'm sorry?
15
COMMISSIONER WILLIAMS: What was it?
16
MR. CONNER:
That was Diane Cruz.
17
COMMISSIONER WILLIAMS:
Yeah.
But what was
18
her memory, in essence?
" ,
19
MR. CONNER:
She recalls -- if I understood
20
her correctly, she has seemed to recall some
21
meeting in 2001 between some city officials and
22
Mr. Davis. And she apparently recalls that, upon
23
leaving the meeting, she felt Mr. Davis may not
24
have been treated fairly by the City.
25
MAYOR LINDA KUHN:
I think we -- you had put
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1
all that into -- or reduced it to writing, so
2
we've got it in a file.
3
MR. CONNER:
That's in the file.
4
MAYOR LINDA KUHN:
I just briefly scanned
5
over it Monday.
6
MR. CONNER:
I can't tell you what she's
"'"
....I
7
going to testify. All I can tell you is -- I
8
can't tell you if she's going to testify.
But I
9
can tell you --
10
MAYOR LINDA KUHN:
But her testimony would be
11
detrimental to the City?
12
MR. CONNER:
If -- if she was remembering
13
what she thought she was remembering and what
14
she -- you know, as you talk over issues with
15
people, sometimes memories bubble up, sometimes
16
they clear up over time.
But my impression of
17
what she told me -- you know, if it was, in fact~
J
18
Mr. Davis she was thinking of in this contract she
19
was thinking of, it would likely comport the
20
Plaintiff's theory of the case, which appears to
21
be Mr. Marder -- and, you know, they haven't come
22
out and said this, but from what I'm hearing from
23
the Plaintiff --
24
MAYOR LINDA KUHN:
Was Mr. Marder didn't like
25
it from the very beginning and he was doing what
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1
he could to nix the project, right?
2
MR. CONNER: And you don't get to talk to the
3
Plaintiff directly, but you can infer things from
4
questions they ask.
5
They just took Roger Dixon's deposition
6
Wednesday, it was yesterday morning. And from
7
what they're asking, it appears to me their theory
8
of the case is Jay Marder didn't like this
9
contract from the beginning, and I would suspect
10
that at trial we'll see a theme that --
11
MAYOR LINDA KUHN:
What was Roger Dixon's
12
testimony?
13
MR. CONNER: Well, he doesn't really remember
14
much about the contract at all.
He knows that he
15
spoke with Mr. Davis early in the process. And
16
his recollection actually was that the contract
17
had not been formed, that the idea kind of went
18
away.
19
MAYOR LINDA KUHN:
Oh, okay.
20
MR. CONNER:
He was -- he indicated in his
21
testimony that he was actually a little bit
22
surprised to see that he actually witnessed the
23
contract.
So in fairness to him, you know,
24
there's so many things you sign in a period of
25
five years.
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1
MAYOR LINDA KUHN:
You think?
2
MR. CONNER:
So that's
his position is
3
that he doesn't remember.
He just wasn't a part
4
of the formation of the process -- or the
5
contract.
He was in the beginning initial stages,
6
and this wasn't a part.
.~
-J
7
MR. YEHL: Why is Mr. Marder's attitude
8
relevant? I mean, he works for the city manager
9
who works for the city commission who authorized
10
the contract --
11
MAYOR LINDA KUHN:
Right.
12
MR. YEHL: -- and that is going to be
13
complied with. What difference does it make
14
whether he --
15
MAYOR LINDA KUHN: What his personal
16
preference is?
17
COMMISSIONER JONES:
That's the same question
18
I was going. to ask. With all respect to Diane, I
J
19
mean, come on, she was -- she was the
20
administrative secretary for the city commission.
21
MR. CONNER: Well, her recollection is that,
22
as the commission liaison, it was her job to --
23
and this is my understanding of what she told
24
me -- her job to try to sort out problems. And
25
she thinks that was probably why she was at this
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1
2
3
4
5
'- 6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
meeting she seems to recall.
COMMISSIONER JONES:
But she wasn't to speak
on any of our behalfs.
She was a liaison more
between us and --
MAYOR LINDA KUHN:
Diane's position was
completely different, I think, at this juncture as
to what her latest is.
MR. CONNER:
I can tell you Ms. Cruz'
recollection of that meeting, as discussed, was
that it occurred after Mr. Dale left the City and
of course before Ms. Cruz went to the airport
authority.
So that means April, May, June, and
MAYOR LINDA KUHN:
Bottom line, I think what
we need to do is to give him some guidance for
Monday.
MR. MCINTOSH:
Review the sovereign immunity
cap for them, please.
MR. CONNER:
There is a sovereign immunity
statute. Unfortunately, that statute applies to
torts. That statute, of course, says that the cap
on recoverable damages is $100,000 per Plaintiff,
$200,000 per incident.
On top of that, if you get
a judgment in excess of that, you go to
essentially try to get a special law passed by the
legislature; it's called a claims bill.
But those
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1
protections are only afforded to municipalities,
2
in this case, on claims sounding in tort.
This
3
case is a breach of contract case.
The City does
4
not enjoy any sovereign immunity with regard to
5
any recoverable damages.
6
MR. MCINTOSH: Was there an indemnification
~
...J
7
provision in the contract that indicated that
8
sovereign immunity applied not only to tort but
9
also contract?
10
MR. CONNER: No. No. And, in fact, there is
11
one other issue we must give serious consideration
12
to.
13
MAYOR LINDA KUHN:
This gets worse.
14
MR. CONNER:
The contract
the contract
15
includes a fee provision.
16
MR. MCINTOSH:
Right.
17
MR. CONNER: Which means if any party
18
institutes litigation as a result of the contract
~
...,J
19
and then prevails, that party is entitled to have
20
its attorneys' fees paid by the other party.
21
Now, my understanding from reviewing the
22
Plaintiff's financial records are that up through
23
March of this year they have reported slightly
24
more than $50,000 in attorneys' fees.
I don't
25
I have not seen numbers from March till now, but I
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2
3
4
5
r
\....- 6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
can tell you they retained Shutts and Bowen, a
very capable law firm, very respectable lawyers,
who I believe probably bill according to their
reputation and abilities.
Shutts and Bowen's
conflicted out.
The Plaintiff then retained
McClain, Tessitore -- Mike Tessitore, McClain,
Tessitore, and so that's another law firm that had
to get worked up on a case where I received 11,000
pages of financial documents.
So from March till now I can't venture to
guess a number.
But if this case goes to trial,
and we lose on the liability aspect, they will be
entitled to attorneys' fees. And if it's been
50 that they're reporting now
COMMISSIONER JONES:
Six figures.
MR. CONNER:
-- probably well into six
figures. And they've got Dr. Fishkind and
Mr. Walden --
MAYOR LINDA KUHN:
Experts to pay for.
MR. CONNER:
-- and then will make a claim
for their fees as well.
MR. MCINTOSH:
John, tell them how successful
does the Plaintiff have to be in the case in order
to collect all their costs and attorneys' fees.
MR. CONNER: Well, we have filed a proposal
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for settlement, going back to the $100,000 issue
2
you mentioned earlier. We filed a $49,999.99
3
proposal for settlement. What that means is --
4
and this will become a very complicated issue, but
5
let me see if I can't set it forth for you.
6
Our $49,999.99 was made exclusive of fees and
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costs.
If we have a better outcome from our offer
8
by 25 percent or more -- let's see -- which I
9
believe will be a jury verdict of less than
10
$35,000
I'm not a math major.
If we beat the
11
$49,999 by 25 percent
12
MR. MCINTOSH:
25 percent.
13
MR. CONNER:
In other words, if they get one
14
penny less than 75 percent of $50,ODO, we would be
15
entitled to fees and costs
16
MAYOR LINDA KUHN:
Right.
17
MR. CONNER:
-- from the date we made the
18
offer.
J
19
MAYOR LINDA KUHN:
Right.
20
MR. CONNER:
-- which was just a week or two
21
ago.
22
MAYOR LINDA KUHN:
Right.
23
MR. CONNER:
Now, if they recovered on the
24
contract at all, they would move to tax fees for
25
the entire five years of litigation.
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So essentially under a circumstance where we
2
get a low verdict for them but we are found to
3
have breached, we would get a setoff for the
4
amount of our fees in preparing for the case since
-"
lr'''' .
5
the date of our offer.
But they would -- on their
'........
6
side of the equation, would be their fees and
7
costs, and whatever the jury verdict was --
8
MR. MCINTOSH:
From day one.
9
MR. CONNER:
from day one.
Their fees and
10
costs from day one.
So even if we to recover, our
11
number would likely be substantially less than
12
theirs.
13
Of course, if we prevail on liability, which
14
I believe is going to be difficult in this venue,
15
then we would be entitled to fees and costs from
16
the beginning of the litigation because we would
17
be the prevailing party, or at least we could move
'-
18
to tax fees and costs.
And, actually, it's a far
19
more complicated process because each side attacks
20
the legitimacy of the fees and costs involved, and
21
that can be -- the litigation can sometime take on
22
a life of itself.
23
MR. YEHL:
If this case is lost maybe due to
24
a friendly court, what's the chance of being
25
successful on appeal?
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MR. CONNER: Well, the way the law works is,
2
the Judge decides what a breach is, what actions
3
would constitute a breach.
It's then for the jury
4
to decide if that happened.
5
I suspect under these circumstances the Judge
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would probably find that if the -- and this is my
7
supposition.
I expect a judge would likely say,
8
jury, if that December 18th letter immediately
9
cancelled the contract, that's a breach. And then
10
it would likely be for the jury to decide whether
11
or not the December -- it would be, I believe, the
12
providence of the jury to decide, did that
13
December 18th correspondence cancel the contract?
14
COMMISSIONER JONES:
But the motion of the
15
city commission authorizing that correspondence in
16
the first place does not indicate an immediate
17
breach.
18
MR. CONNER:
It does not.
It does not.
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That's true.
20
COMMISSIONER JONES:
That is the motion that
21
we voted on. We didn't vote on wording of a
22
letter.
23
MR. CONNER: And that's -- you know, a
24
municipality, under circumstances like this, gets
25
very different in different areas of law.
Under
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r 5
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circumstances like this, if our director of
engineering and planning breaches the contract,
the City is -- you know, it's tough to speak in
absolute certainties when it comes to the law.
But under circumstances like this, the City is
probably going to have to live with the actions of
Mr. Marder.
MAYOR LINDA KUHN:
Okay. Worse case
scenario, what is our exposure here?
MR. CONNER: Well, worse case scenario, if
they believe -- if the jury buys the story hook
line and sinker
and I think that is a scenario
based on who the Plaintiff is, the business the
Plaintiff's in, people will recognize this name.
When you get off the Turnpike and take the I
guess it's the Osceola Parkway over to 441.
MR. MCINTOSH:
Yes.
441.
MR. CONNER: When you make a left to go south
on 441, there's 2020 bench there.
They also do
benches.
They also do toll booth advertising.
There are a significant number of these shelters
in this community. According to the Plaintiff,
the Plaintiff's expert, there are 56 of these
benches in Osceola County, Kissimmee and
St. Cloud.
You will be surprised to hear they are
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1
on the most traveled roads.
People know this
2
name.
3
COMMISSIONER JONES:
Well, how fast do they
4
get those benches constructed once they've got
5
approval?
6
MAYOR LINDA KUHN: Well, he didn't tell me.
""'"
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I want to know, worse case scenario.
8
MR. CONNER: Well, worse care scenario
9
MAYOR LINDA KUHN:
What's our exposure?
10
MR. CONNER:
again, if they buy the
11
Plaintiff's -- and I do believe it works against
12
us just because of the difference in the venue,
13
Osceola County --
14
MAYOR LINDA KUHN:
Right.
15
MR. CONNER:
-- and the fact that it won't be
16
a jury sitting in judgment of its own government,
17
it's some other county, two counties north --
18
MAYOR LINDA KUHN: Right.
.~
19
MR. CONNER:
and their claim of one point
20
15 -- and of course if they got dollar one
21
MAYOR LINDA KUHN:
Right.
22
MR. CONNER:
-- they will be moving for fees
23
and costs, I would expect if we go through trial
24
with the experts they have -- and I can't tell you
25
I have knowledge of what their experts are
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charging them -- I will want to depose them, but I
don't know now -- probably be one point 35. I
think they would probably be making a claim for
about 200, maybe a little less, which would make
it one point three.
Now, that's, I believe, worse
case.
And, actually, you never know what worse case
could be.
Maybe a jury would think they would
keep operating.
Because, again, their future
damages are based on, we would have sold the
business and made $400,000 on selling the Sanford
business.
MAYOR LINDA KUHN:
Right.
MR. YEHL:
But why hasn't the offer of
extension of the contract mitigated all that?
MAYOR LINDA KUHN:
Yeah.
MR. CONNER: Well, that's our argument.
That's certainly our argument.
Now, the Plaintiff's response I would
anticipate would be, you know, these people -- we
litigated for five years, they clearly don't like
me, they cancelled my contract wrongly.
This
would be their argument.
MR. YEHL:
But we're different people now.
MR. CONNER: And that's a good argument. You
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59
1
know, you're preaching to the choir.
I think
2
that's a good argument, I really do.
3
Okay.
Okay.
MR. YEHL:
4
But if we're talking worse case
MR. CONNER:
5
scenario, you got to think the jury is going to
6
buy their story. And I -- again, liability-wise,
7
I think this is -- there are several aspects that
8
must be very seriously considered, the venue, the
9
fee provision.
The name recognition of the
Plaintiff may also --
MAYOR LINDA KUHN: Well, you know, we'll
reinstate the contract, and, you know --
MR. CONNER:
Now, they have no obligation to
accept our offer.
MAYOR LINDA KUHN:
I know.
I'm just saying.
MR. CONNER:
But under their theory, the
contract is dead because we did wrong, we breached
it.
That's their -- that's where they're going.
MR. MCINTOSH:
But they have not, at this
point, indicated to you flatly that they would not
entertain Mr. Yehl's offer; is that correct?
MR. CONNER:
They have not said,
Correct.
no. And the fact that they asked us for
clarification, they -- they said they weren't
clear, would we have to surrender this lawsuit to
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1
come back? And, again, the value for this
2
litigation of the offer to return is the ability
3
to say to a jury, we asked them back, they could
4
have come, made all this money but they didn't.
r
'-'
5
And so we told them, no, you don't have to
6
surrender this lawsuit, you can keep going.
So
7
that's the value to this litigation of the offer.
8
I would suspect that because they asked us
9
for that clarification, they're giving some kind
10
of consideration to it.
11
MAYOR LINDA KUHN:
I guess we'll find out
12
Monday.
13
COMMISSIONER JONES:
So wait a minute.
Now,
14
let me get this straight.
15
MAYOR LINDA KUHN:
All right, guys.
I've got
16
out-of-town company coming in in 30 minutes.
17
MR. MCINTOSH:
I got one point 43, just
18
listening at the numbers.
19
MAYOR LINDA KUHN:
Okay.
20
MR. CONNER:
And I certainly do not relish
21
bringing this kind of news.
22
We have made extensive efforts in this case
23
for several years now.
And this case, you know,
24
we thought went away a couple times.
I mean,
25
they're on their sixth attorney, on their fourth
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1
law firm. And that tells you something, when
2
their on their sixth attorney, fourth law firm,
3
and they're gettin' Shutts and Bowen and
4
well-respected former partners of Akerman
5
Senterfitt with LLM's in business law.
I mean,
6
that tells you something when they're getting top
7
quality litigators as their fourth, fifth and
8
sixth strings.
That tells you -- what it tells
9
you is, the attorneys on the other side think very
10
highly of the case.
11
MAYOR LINDA KUHN:
Right.
12
MR. CONNER: And these are not -- these are
13
not neophytes.
14
MAYOR LINDA KUHN:
Right.
15
MR. MCINTOSH:
Sir, do you think the
16
appearance of Mr. Yehl at mediation, which
17
evidences what is classified as a new approach and
18
a new fresh air in the City of Sanford, would be
19
helpful as you give consideration to those who
20
were originally involved in the contract?
21
MR. CONNER: That may be helpful.
22
MR. MCINTOSH: I'm just asking.
23
MR. CONNER:
It may be.
They don't know -- I
24
would assume if it was not Mr. Yehl, it would be
25
Fred Fosson (ph).
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22
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24
25
MAYOR LINDA KUHN:
Can the Mayor go?
MR. CONNER: Well, I think you absolutely
could.
You're -- you're the chief executive
officer of the party in interest.
Maybe you can
talk some sense into them a little bit.
MAYOR LINDA KUHN:
I don't know about that.
MR. CONNER:
No.
That was a joke.
MR. MCINTOSH:
You know, when you give
consideration to the exposure, it sounds to me
like it might be a very good idea for those
individuals who are currently at the helm to be
present during the mediation to communicate what
kind of activities we're doing here in the City of
Sanford at the present time.
Things are
different, sir.
MR. CONNER:
You know, if -- there is a --
there is a confidentiality privilege that goes
along with mediation. Nothing you say at
mediation can be used later.
MAYOR LINDA KUHN:
Right.
Right.
MR. CONNER: I think that's something we
should consider. I don't want to -- I would like
to think that through a little bit.
Because if
we're going to have an authority figure appear and
make any kind of address to the Plaintiff, and
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1
say, you know, we're new people now, we want this
2
to go well, come on back, that's something I would
3
like to think through a little bit.
Because I
4
don't want to -- I want to make sure we're giving
5
the right impression, and I don't want them to
6
think there's giant offers coming, you know, full
7
value offers coming, because they're seein' --
8
MAYOR LINDA KUHN:
New faces.
9
MR. CONNER:
-- new faces and big names.
10
MAYOR LINDA KUHN: And I don't want to give
11
that impression.
12
MR. CONNER: Any member I think is
13
clearly, you don't get any higher than that.
14
MR. MCINTOSH:
No.
The only purpose would
15
be, sir, to undergird of them returning to fulfill
16
the contract.
That's all. No other reason.
17
MR. CONNER:
Sure.
sure.
But I'm just sort
18
of thinking out loud about potential appearances.
19
And, you know, another thing is, if we start
20
making significant offers at mediation, I'm
21
contemplating making them contingent upon
22
Plaintiff not returning.
23
MAYOR LINDA KUHN:
Right.
24
MR. CONNER:
I mean, once we're at the low
25
levels, we can choose to leave that offer open.
SEMINOLE REPORTING INC.
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1
And our communication to the Plaintiff said, the
2
offer is open until mediation.
Didn't say until
3
after mediation.
Didn't say until before
4
mediation. And I think what we're saying is, when
5
mediation starts, you know, you can't count on
6
this offer, and I think that's clear in the
7
communication.
8
So if we start giving large offers or -- you
9
know, we're speaking in relative terms, it will
10
probably be without them returning.
11
MR. YEHL: And a large offer would be --
12
MAYOR LINDA KUHN:
I was going to say, what's
13
a large offer?
14
MR. CONNER: Well, you know, we -- our
15
proposal was for $49,999.
16
MAYOR LINDA KUHN:
Right.
17
MR. CONNER:
That would appear from their
18
books to not cover their attorneys' fees to date.
19
MAYOR LINDA KUHN:
Right.
20
MR. CONNER: And, again, you know, if they
21
get dollar one, they're going to have a really
22
strong argument that they are the prevailing
23
party. And I would suspect with all of their
24
experts done, by the time the trial is over they
25
will have well into six figures in the case, well
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1
into six figures.
2
MAYOR LINDA KUHN:
Right.
3
MR. CONNER:
But I can't -- you know, that's
4
conjecture.
I don't know what the Plaintiff's
5
counsel is billing them.
I don't know how many
6
people they've got working.
They may have
7
associates working behind the scene that I'm not
8
aware of.
That's all very real possibilities.
9
We do have significant, I think, argument as
10
to their damages.
But the complications of
11
financial accounting and tax accounting, you can't
12
escape them. Accounting becomes very complicated
13
very quickly; financial accounting, tax
14
accounting, what the rules are, how they
15
interplay. It concerns me having a jury deal with
16
numbers of this size when the issues are so
17
complex.
I am very happy that we've got Dr.
18
Raffa.
I think he's an excellent witness.
I
19
think Dr. Fishkind is an excellent witness as
20
well. And, you know, the City's cost to defend
21
the case is something to consider because it's not
22
been insignificant.
It's been five years worth of
23
litigation.
24
MAYOR LINDA KUHN:
Can I share what were
25
just --
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MR. CONNER:
Surely.
2
MAYOR LINDA KUHN:
There is an e-mail that
3
Mr. McIntosh has just shared from our risk manager
4
Fred Fosson, and I think Fred is indicating
5
that -- what, it was a hundred thousand exclusive
6
of attorneys' fees?
7
MR. MCINTOSH:
That's on June the 5th at 2:29
8
p.m. remitted to you, sir.
9
MR. CONNER:
Yeah.
That was -- we spoke
10
about making an offer of that amount.
11
MAYOR LINDA KUHN:
Right.
12
MR. CONNER:
Two issues there.
One is, I
13
think we would have had to get commission
14
approval.
15
MAYOR LINDA KUHN:
Right.
16
MR. CONNER: And there are somewhat
17
MAYOR LINDA KUHN:
That's why we're here.
18
MR. CONNER: Well, I mean, we'd have to have
19
a public meeting for that in order to make that
20
that's my understanding, in order to make it
21
MAYOR LINDA KUHN: I don't think we have
22
MR. CONNER:
-- official.
23
COMMISSIONER JONES:
Yeah, we do.
24
MAYOR LINDA KUHN: No.
I don't think we have
25
to have a public meeting.
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MR. YEHL: I think you have to announce.
2
MR. CONNER: The shade meeting provisions
3
are
4
MAYOR LINDA KUHN: That always sounds so
5
shady.
6
MR. CONNER: Well, the executive session.
~
,..)
7
MAYOR LINDA KUHN:
I know.
8
MR. MCINTOSH: Let's remember what we did in
9
our last major 18 million dollar one as the
10
directors, with the Mayor being present on the
11
front row during all of the proceedings, we were
12
able to do it. And what we did is we submit here,
13
and then at the next commission meeting we sought
14
authority to make an affirmative decision on what
15
to do with reference to the case.
16
MAYOR LINDA KUHN: Right.
17
MR. MCINTOSH: And at that time Cheney Mason
19
"""
got rid of us. ....,)
MR. CONNER: Oh, Cheney Mason.
18
20
MAYOR LINDA KUHN:
I've got to go. Okay
21
COMMISSIONER JONES: What we're looking at
22
right now if we go into mediation tomorrow, and so
23
what's on the table is to --
24
MAYOR LINDA KUHN: Monday.
25
MR. CONNER: Monday.
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COMMISSIONER JONES:
-- Monday -- I'm
2
sorry -- is to say, hey, look, come back --
3
there's three new people out of the six who
4
would -- between the Mayor and the city
5
commissioner, there's three ~ew ones -- say, hey,
.........
6
look we still want the services, we wanted the
7
services in the first place, that's why we did
8
this, come on back.
But if they say, okay, fine,
9
does this lawsuit still continue?
10
MR. CONNER:
It would.
I believe in order to
11
make the offer an effective tool for this
12
litigation it's got to be unconditional.
Because
13
we've got to --
14
COMMISSIONER JONES:
But what I'm saying is,
15
if we -- let's get this straight in my head here.
16
So if we say, come on back, we want you to put
17
your bus shelters up and make money for 20 years
,.
18
or longer, they could say, okay, hey, we'd love to
19
do that, but in the next breath go, but we're
20
still going through with this?
21
MR. CONNER:
You mean at mediation?
22
COMMISSIONER JONES:
Yeah.
23
MR. CONNER:
We can make any deal we want at
24
mediation.
25
COMMISSIONER JONES:
Right.
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MR. CONNER:
That's a fact.
2
Now, if they were to give serious
3
consideration to return and perform, they would no
4
doubt be looking for some compensation for the
5
attorneys' fees.
6
MR. MCINTOSH:
.~
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Correct.
7
MAYOR LINDA KUHN:
Right.
8
MR. CONNER:
You're already talking about six
9
figures.
10
COMMISSIONER JONES: Right.
11
MAYOR LINDA KUHN: Okay.
12
MR. CONNER: Maybe more.
I truly don't know.
13
My expectation would be that right now it's
14
probably about a hundred, maybe slightly north of
15
that, and that's just based on my looking at their
16
books.
17
In order to make the offer like we've done,
~
18
in order -- in other words, to make the offer to
19
return an effective litigation tool, it's got to
20
put us in a position to say, hey, jury, they could
21
have come back, we would have given them the rest
22
of 20 years.
So in order to be able to say that
23
in good faith, it can't be conditioned when we
24
make the offer, it's got to be an unconditional
25
offer, and that's why we made the unconditional
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1
offer to return.
2
MAYOR LINDA KUHN:
Offer to return. And as
3
Fred said in his e-mail $100,000 exclusive of
4
attorneys' fees, that's the high end.
5
MR. CONNER: What he was referring to in that
"
6
e-mail, I believe
I don't know the context of
7
it, but it sounds to me like what he was referring
8
to is --
9
MAYOR LINDA KUHN:
To proceed.
10
MR. CONNER: Well, we were discussing
11
authority to make a proposal for settlement
12
MR. MCINTOSH: Correct.
13
MR. CONNER: There are some rules about when
14
you can make such a proposal.
15
MAYOR LINDA KUHN:
Right.
16
MR. CONNER: And the rule is, it's going to
17
be done 45 days prior to the first date of trial
18
docket. And these discussions were had coming up
19
to that deadline.
I think this is June 5th.
I
20
think that was two or three days before the
21
deadline. We did talk about making a hundred
22
thousand dollar proposal.
23
MAYOR LINDA KUHN:
Right.
24
MR. CONNER: There was two main reasons we
25
didn't do that. And this is -- you know, we
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1
discussed there with Fred and Mr. Yehle
I mean,
2
this is -- there's more after this e-mail.
But
3
the thought process was, first we'd have to have a
4
city commission meeting --
5
MAYOR LINDA KUHN:
Right.
J
6
MR. CONNER:
-- and I think there may have
7
been some concern about the timing of that.
8
MAYOR LINDA KUHN:
Right.
9
MR. CONNER:
In other words, Mr. Yehl only
10
has up to $49,999.
11
MAYOR LINDA KUHN:
Right.
12
MR. CONNER: And that was actually sort of a
13
minor consideration, the fact that we'd have to
14
have a public meeting.
I think the overriding
15
thought -- and this is from Fred and myself in our
16
conversation with Fred, that we didn't want to
17
give the Plaintiff the idea that they were going
~
18
to be, you know, high six-figure offers --
19
MAYOR LINDA KUHN:
Right.
20
MR. CONNER:
-- and that we should retain
21
some of our authority at mediation.
22
MR. MCINTOSH: Sure.
23
MR. CONNER: And that's why we chose to go
24
49 -- 49,999.
25
Now, I think Fred is pretty close.
I mean,
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1
2
3
4
5
'- 6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
this is the beginning of June actually, and, you
know, now we're in mid July.
MAYOR LINDA KUHN: Mid June.
MR. CONNER:
I think at the beginning of June
Fred was probably pretty close to $100,000
exclusive of fees. And I think when he's
saying -- well --
MR. MCINTOSH:
That's nine days ago.
MR. CONNER: Oh, I'm sorry.
Pardon me.
Because June 7 was -- I'm sorry -- was the
deadline.
Now, that I see the e-mail, I do
recall.
He was giving us authority to file the
proposal for settlement.
MAYOR LINDA KUHN:
right.
MR. CONNER: And the idea that it was
exclusive of attorneys' fees was
remember how I
was explaining that if there was a verdict for the
Plaintiff that was below our offer, if you make
your offer inclusive of attorneys' fees, then the
Plaintiff would argue, well, the jury gave you --
gave us a smaller number, but we get to tax fees
and costs.
So the jury -- the Plaintiff would
argue, the jury verdict plus the fee and cost
award would be what we have to beat.
MAYOR LINDA KUHN:
Right.
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1
MR. CONNER:
So that's the reason for the
2
language of exclusive of attorneys' fees. And
3
that's how we ended up making up that proposal.
4
COMMISSIONER JONES:
Is there any idea what
5
the payoff is for them to just go away?
~
...",
6
MR. CONNER:
You know --
7
COMMISSIONER JONES:
Your best estimated
8
guess.
9
MR. CONNER:
This is a conversation that's
10
going to be painful.
11
COMMISSIONER JONES: Oh, yeah.
12
MAYOR LINDA KUHN: They're all painful
13
COMMISSIONER WILLIAMS: Already painful.
14
MR. CONNER:
You know, that's so true.
15
Because once you start talkin' numbers -- once you
16
start talkin' numbers, the process is the same if
17
you're in small claims court, circuit court,
18
Federal Court, and it's a number of zeros behind
J
19
it.
It's always equally painful to me, at least.
20
Considering the amount of money they're going
21
to have in it, I don't know that the case -- and
22
I've spoken to our experts, you know
23
MAYOR LINDA KUHN:
Just tell us.
24
MR. CONNER:
Is the question what I think
25
they would take or what I think a reasonable offer
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1
would be? I guess let's
2
MR. MCINTOSH: Both.
3
MAYOR LINDA KUHN: Both.
4
COMMISSIONER JONES: Both.
5
MR. CONNER:
I think if we were to offer
6
500
7
COMMISSIONER JONES: Don't worry about the
8
numbers.
I've listened to numbers and this kind
9
of stuff my whole life, and numbers are --
10
MAYOR LINDA KUHN: Irrelevant.
11
COMMISSIONER JONES: Yeah.
12
MR. CONNER:
I think if we were to offer the
13
500, we would have a pretty good likelihood of
14
settling the case.
15
COMMISSIONER JONES: We go our way, they go
16
their way?
17
MR. CONNER:
I think -- I can't tell you that
18
would do it.
I can't tell you with certainty that
19
number would settle the case, obviously. But I
20
think we'd have really good shot at that level.
21
Now, as I say, we've got pretty good
22
arguments against their damages, but that could
23
all be lost on a jury.
24
COMMISSIONER JONES: Right.
25
MR. CONNER: A jury could see a hometown guy
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1
who's been here 30 years, I drive by his bus
2
shelters every day, you know, that kind of
3
momentum can happen in a deliberation.
4
MAYOR LINDA KUHN: I'd say offer them 250 and
5
be done with it.
6
MR. CONNER: And the danger -- and again
~
7
MAYOR LINDA KUHN: Well, you're saying they
8
have, we know, at least 50,000 in attorneys' fees,
9
at least.
10
MR. CONNER: That was up until the end of
11
March.
12
MAYOR LINDA KUHN: Right. Okay.
13
MR. CONNER: So right now they've got to be a
14
hundred
15
MAYOR LINDA KUHN: So if added another --
16
COMMISSIONER JONES: Let's just say it's a
17
hundred.
18
MAYOR LINDA KUHN:
So add a hundred.
J
19
MR. CONNER: And that will probably go to 150
20
or more by trial, maybe 175.
21
MAYOR LINDA KUHN: Well, by trial.
22
MR. MCINTOSH: We're talkin' about Monday.
23
MAYOR LINDA KUHN: Monday.
24
MR. CONNER: A number for fees for Monday
25
is -- a hundred is I think a pretty reasonable
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1
number, I really do --
2
MAYOR LINDA KUHN: Okay.
3
MR. CONNER:
-- without knowing, you know
4
what they charge.
5
MAYOR LINDA KUHN: Okay.
6
COMMISSIONER JONES: Here's my concern with
7
the whole thing.
These are the ones that I'm sure
8
back in the early 1800s, Mr. McIntosh, these are
9
the ones where the termination out behind the
10
woodshed probably came into play.
11
MAYOR LINDA KUHN:
Termination by duel.
12
MR. MCINTOSH: You mean when I started
13
practicing law? Is that what you're sayin'?
14
MAYOR LINDA KUHN:
He didn't say that. No.
15
We like to pick on him.
16
COMMISSIONER JONES: With those -- you know,
17
with those type of attitudes, you know, I'm glad I
18
wasn't sittin' in the room when he was sayin', I
19
don't have to do anything until the last month of
20
the last year. Anyhow
21
MAYOR LINDA KUHN:
I'm always the one that
22
speaks out.
Never you guys.
I'm always the one
23
that gets us in trouble.
24
COMMISSIONER JONES: My concern is, if we
25
just go in and say, hey, come back, you know, we
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1
want you back, unconditionally, that contract is
2
ugly.
3
MAYOR LINDA KUHN: Well, that's what I'm
4
saying. That's why we want to renegotiate it.
5
MR. CONNER: But you have to accept them back
6
under the original terms.
J
7
MAYOR LINDA KUHN:
I know.
8
MR. CONNER: And then I don't think anybody
9
would stop you from broaching --
10
MAYOR LINDA KUHN: Attempting.
11
MR. CONNER: The subject.
12
COMMISSIONER WILLIAMS: But he doesn't have
13
to consider anything else.
14
MR. CONNER: That's true. And it all comes
15
down to
16
COMMISSIONER JONES: Why would you go away --
17
MAYOR LINDA KUHN: So do we want him to come
18
back or do we just want to make a flat-out offer
J
19
and say, okay?
20
COMMISSIONER JONES: See, and my thinking is,
21
as I look at that contract as 19 years and two
22
months of
23
MAYOR LINDA KUHN: Yeah.
24
COMMISSIONER JONES: a whole --
25
COMMISSIONER WILLIAMS: They can do whatever
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1
they want to do.
I mean, I just --
2
COMMISSIONER JONES:
-- they can do whatever
3
they want to do or nothing at all.
4
MAYOR LINDA KUHN: Well, let's remind ourself
~
5
that we need to probably create an ordinance that
6
any future contracts must be reviewed by the city
7
attorney prior to signing them.
8
COMMISSIONER WILLIAMS:
I thought that's
9
what we were doing --
10
MAYOR LINDA KUHN: Mr. McIntosh.
11
COMMISSIONER WILLIAMS:
was that nothing
12
be done without the attorney.
13
MR. MCINTOSH:
There's nothing done now
14
without the attorney.
15
MAYOR LINDA KUHN:
But there's nothing in
16
place that says it's a requirement.
'...-
17
MR. MCINTOSH:
I know.
I know that.
18
MAYOR LINDA KUHN:
Well, we need to put
19
something in place so we don't -- for future
20
COMMISSIONER JONES: Awareness at his office
21
that nothing's being done.
22
MAYOR LINDA KUHN:
Sorry.
This was internal.
23
MR. CONNER:
Sure.
Sure.
I just don't want
24
to be making any representations as to who or how
25
this contract was reviewed.
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1
MAYOR LINDA KUHN:
Oh, no, no, no.
2
MR. MCINTOSH:
Tell John what you think you
3
want to tell him to do on Monday.
4
MAYOR LINDA KUHN: Well, I think obviously
5
the first one would be the offer that was made,
.........
'h
6
okay, come back, you know, no harm, no foul, you
....,
7
know, your contract's back in place.
8
MR. CONNER:
That offer's out there already.
9
MAYOR LINDA KUHN:
Okay. And then I say the
10
hundred thousand dollars exclusive of attorneys'
11
fees, you know, but I'm not willing to go a whole
12
lot higher than that.
I know you're saying, okay,
13
500,000, sure --
14
MR. CONNER:
I'm telling you what I think
15
would probably settle the case, but certainly not
16
what I think is a good deal.
17
MR. MCINTOSH:
You're telling us what you
~
18
think would settle it is a comeback and $500,000?
19
MR. CONNER: No. No.
No.
No.
I think they
20
would take 500 and run, because I think they would
21
probably clear, you know, at this point about
22
four.
23
MR. MCINTOSH: What is your attitude about
24
please come back, fulfill the remainder of the
25
contract and then dollars and cents in addition
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1
thereto?
2
MR. CONNER: At this point, if we were to get
3
this done Monday
4
MR. MCINTOSH:
Yes.
5
MR. CONNER:
I don't think it will be much
6
more than a hundred.
I would have to see some
7
justification for them going to go over a hundred.
8
And we wouldn't offer a hundred, obviously. We
9
would deal up to that number.
10
MR. MCINTOSH:
Right.
11
MAYOR LINDA KUHN: Well, that's what I'm
12
saying.
13
COMMISSIONER JONES: But my concern is --
14
MAYOR LINDA KUHN: No more than a hundred.
15
Don't offer any more than a hundred on Monday.
16
COMMISSIONER JONES:
Let's just say that's
17
where we do end up.
So now we're at a hundred
18
plus dealing with them for 19 years.
19
MAYOR LINDA KUHN:
Right.
20
COMMISSIONER WILLIAMS:
For 20 years we're
21
obligated, and not get anything.
22
COMMISSIONER JONES:
To me some potential
23
extra monetary is worth -- we can't afford that
24
much --
25
MAYOR LINDA KUHN: Well, then make an offer
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1
to them of 250, and say, see you, in the
2
alternative.
3
MR. MCINTOSH:
Okay.
4
MAYOR LINDA KUHN:
They've covered their
5
costs and then put a little money in their pocket
6
with that 250 offer.
.~
..,.
7
COMMISSIONER JONES:
One-and-a-half times.
8
MAYOR LINDA KUHN:
Right.
9
MR. CONNER:
That would probably cover their
10
costs and give them money to walk away with.
11
MAYOR LINDA KUHN:
Right.
12
MR. MCINTOSH: So then we've got two
13
alternatives, sir. One is flat out $250,000, go
14
away, we never hear about this again. And the
15
alternative is they come back, please, and the
16
offer is a hundred thousand dollars and everything
17
goes away, other than what? We pay them a hundred
18
thousand dollars, they come back and we're going
J
19
to have to deal with them.
20
MR. CONNER: Well, now
21
MAYOR LINDA KUHN:
So I guess we need to put
22
it in which order.
23
MR. MCINTOSH:
That's right.
24
MAYOR LINDA KUHN:
Randy's saying we don't
25
want to deal -- Randy and Velma are saying, we
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1
don't want to deal with him.
2
COMMISSIONER JONES:
But let's say they do
3
come back.
Let's say they say, okay, we'll come
4
back and we'll take the comeback offer. Where are
r
~
5
we in terms of -- how many sites do we have to
6
provide them?
7
MR. CONNER:
There's no -- the contract
8
doesn't say how many sites would be --
9
MAYOR LINDA KUHN:
Come back, we'll give them
10
one.
11
MR. CONNER:
There's no minimum or maximum.
12
MAYOR LINDA KUHN: Well, that's what the
13
contract says, isn't it?
14
COMMISSIONER JONES:
Yeah.
If they want to
15
play on the letter of the law, we will too.
16
MR. MCINTOSH:
Here's where we are.
I'm
17
listening at the consensus. And the consensus
'-Nif
18
that we have for Monday, listening to everybody,
19
is to offer $250,000. That's as high as your
20
authority is, period.
$250,000, John, is a
21
go-away.
22
MR. CONNER:
Right.
Well, let's talk it
23
through a little bit.
If -- if we go with a level
24
like 250 -- and I understand that you're not
25
giving me final authority right now.
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1
MAYOR LINDA KUHN: No.
Because then we have
2
to have a meeting to vote on it.
This is all
3
contingent.
4
MR. CONNER:
Right exactly.
I understand
5
that.
I just want to make that clear for the
~
'WIll
6
record.
7
MAYOR LINDA KUHN:
Right.
8
MR. CONNER:
If we go with a number like 250,
9
you got to flash-forward to a jury verdict.
I've
10
asked the Judge, by the way, this morning to
11
bifurcate the trial, try liability first then
12
damages.
Liability's a simple issue.
It's a
13
question, did this letter constitute a breach?
14
Did the Plaintiff's failure to do anything from
15
our aspect constitute a breach? And that will be
16
relatively quick.
17
And the Judge is considering whether to --
18
the Judge wouldn't give us two separate trials and
~
19
two separate juries.
He's not considering that.
20
What he said is, he's considering letting us try
21
the issue of damages, let the jury go away and
22
decide, and then depending on how they come back
23
with the damages verdict, go ahead with the
24
damages trial -- depending on how they come back
25
with the liability verdict, maybe go on with the
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1
damages trial.
And that would save both parties
2
some money with regard to the expense of having
3
the experts testify, and we only have to prepare
4
for one trial.
5
But if we were to have a judgment of
6
liability against the City, by the time the trial
",,--.
7
is over, you're probably looking at 150 in fees
8
and costs.
So if you go with a number like 250
9
and I'm leaving out defense costs, which would be
10
significant between now -- because we've got --
11
we've got Raffa and Worzak, and those fellows
12
aren't cheap, and for the last couple weeks there
13
has been an event a day in this case.
I mean,
14
I've been putting in lots of hours on this case,
15
because we've all of a sudden got to gear up for
16
trial.
17
So if we go with a number like 250, the roll
18
of the dice for us would be, if we don't win the
"
19
liability aspect, then we've got to get a judgment
20
of less than a hundred thousand dollars against
21
us, because we know they're going to come at us
22
with a number over six figures for fees and costs.
23
So the total award to them would be somewhere
24
around 250 if they got a judgment of a hundred.
25
You see what I mean?
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1
In other words, you got to take into account
2
the likelihood of a judgment for the Plaintiff and
3
where would that likely fall. And if you think,
4
well, you know, they've got a decent chance at
5
getting a two or $300,000 judgment, or verdict, I
6
should say, you got to add to that at least six
~
7
figures, probably slightly more.
Probably 150 is
8
a good guess.
9
So if they come back with a jury verdict,
10
but, okay, it's only for $200,000, well, to that
11
jury verdict is added the fees and costs judgment,
12
so now you're looking at a judgment of 350.
So
13
that's kind of, you know, mental exercise I like
14
to go through just to see. And, again, we're
15
putting aside defense costs.
16
COMMISSIONER WILLIAMS: And even if we were
17
going to offer 250, we'd really be out $500,000
18
anyway if you include defense costs, all that.
~
19
MR. CONNER:
You know, I don't know as I sit
20
here what the defense costs have been to date.
21
COMMISSIONER WILLIAMS:
I mean, you got to
22
consider that.
23
MR. CONNER:
I think you do.
I think you
24
do.
25
MAYOR LINDA KUHN:
Oh, I know.
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1
MR. CONNER:
I think when you're talking pure
2
analysis, economic analysis, you got to be
3
MAYOR LINDA KUHN:
Right.
I've got to go.
4
COMMISSIONER JONES:
So what are you saying?
5
Possible ramping up that 250 number?
....-
6
MR. CONNER: Well, I just -- I never -- you
7
know, as a lawyer you never get the facts you
8
want, you know, there's never a perfect case. And
9
you just -- I come from the school where you just
10
tell me what the testimony's going to be and I'll
11
figure out what to do, I will find the best way to
12
handle it.
13
COMMISSIONER JONES: And I'm just
14
wondering --
15
MR. CONNER:
Sure.
16
COMMISSIONER JONES:
-- and this goes back
17
to the years of dealing with the police and the
'" "
18
fire -- you get a sense of what that percentage
19
number is they're looking at, what they're looking
20
for. I'm just wondering if that 250 is a tick
21
low, just wondering if it's a tick low because
22
they're looking at a possible business.
23
MR. CONNER:
Not only that.
But what you
24
have to consider is chances of the Plaintiff
25
obtaining a modest judgment. And--
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MR. MCINTOSH:
Do you think an offer of 250
2
will bring about impasse?
3
MR. CONNER:
I do.
I think that's most
4
likely.
5
MR. MCINTOSH:
Okay. And then at that
~
6
juncture everything that was conducted at
7
mediation is confidential?
8
MAYOR LINDA KUHN:
Right.
Can't be used.
9
MR. CONNER: Sure.
10
MR. MCINTOSH: And that goes not mean that
11
the opportunity for settlement is all off,
12
correct?
13
MR. CONNER: No.
It doesn't foreclose the
14
possibility of settlement, but it will mean we've
15
lost our best chance of settlement because of the
16
involvement of Mr. Sawicki.
17
MR. MCINTOSH:
Okay.
Tell us, please, sir,
~
18
what figure do you think you would be comfortable
19
with under authority going into a mediation with,
20
now that we've said 250 and you're uncomfortable
21
with it?
22
MR. CONNER: Well, I don't -- let me be
23
clear.
I don't want to tell you I'm uncomfortable
24
with it, because, you know, I want to offer them a
25
dollar.
But I don't ever want a client to say,
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........
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Mr. Conner, you never -- you never told me I
should have thought they could get a modest
verdict and they get fees and costs.
I want your
eyes open.
That's all.
MR. MCINTOSH:
And we're open.
COMMISSIONER WILLIAMS:
So tell us.
MR. CONNER:
Well, when you think, what about
the chance of a modest verdict? What if you
think -- and, again, I think we've got some pretty
good arguments, and I'll spare you the financial
accounting aspect of it.
But if they were to
get -- a good day for us would be no future
damages.
And depending on how the expert
deposition -- excuse me
expert depositions go,
depending on how they resist my efforts and our
experts resist their efforts, a modest number, a
likely number if there's going to be a Plaintiff
verdict, in my mind as I see the evidence right
now, a middle of the road Plaintiff verdict would
probably maybe be 200 or so.
Now, they're
claiming one point 15 million.
If we do away with the future damages claims
entirely, which obviously there's no guarantee,
and if we very well attack their past damages
claims, I could still seek -- I would still feel
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pretty good if we got a $200,000 total verdict
2
against us.
I would feel that we fended off, you
3
know, 85 percent of the claim.
4
And we will have educated the jury to the
5
point that we whittled the claim down from one
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point 15 million to 200.
7
COMMISSIONER JONES:
These are the same
8
conversations they're having now.
They're doing
9
also the Devil's Advocate thing too --
10
MR. CONNER:
They are.
11
COMMISSIONER JONES:
-- to an extent.
12
MR. CONNER:
You can't underestimate the
13
brazenness and the willingness to go to trial of
14
this Plaintiff.
That's what I'm believing. And
15
that's why I'm saying, we got to think about --
16
and I -- I defend lawsuits for a living, so I'd
17
love to try the case personally.
From a selfish
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aspect, I would love to try the case.
19
COMMISSIONER WILLIAMS:
How much?
20
MAYOR LINDA KUHN:
So what do you think?
21
MR. CONNER:
I'm believing that a modest
22
middle-of-the-road verdict -- a home run is
23
obviously a defense verdict, zero to them.
24
MAYOR LINDA KUHN: No.
I'm talking about
25
mediation on Monday.
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MR. CONNER:
Well, if you're -- and I'm
2
just -- I just want to engage in the process of
3
talking it through.
If we think two to three is
4
a decent -- it's not a windfall for them and it's
5
a -- it's maybe something a jury down there would
6
think is reasonable, then you got to think, hey,
7
well, if a jury is going to think two to three is
8
reasonable, we're probably looking at 150.
I
9
think that's -- based on what they've reported so
10
far in attorneys' fees in the three months that
11
have elapsed, plus the trial, I'm believing we're
12
going to look at a claim for 150.
And that's
13
something we can attack.
We can try to attack
14
that.
But for purposes of this kind of
15
conversation, I think you need to assume that kind
16
of a number.
17
And if we're believin' that they can get a
18
200,000 verdict, two to three, then you just have
19
to add what you think the fees and costs would be,
20
which is probably 150.
So that brings you to
21
around 350 or so.
And maybe -- I mean, if you're
22
thinking a quarter-of-a-million-dollar estimate is
23
possible too, that brings you to four.
So those
24
are just the kinds of things that I want to
25
satisfy myself that we've thought about.
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1
COMMISSIONER WILLIAMS: And would they just
2
go away?
3
MR. CONNER:
For that kind of number there,
4
absolutely.
That would be the offer.
We would
5
not make an offer of that size, and say,
"And you
6
can stay."
7
COMMISSIONER JONES:
Oh, yeah.
And I will
8
give you this too.
You can take it with you
9
(indicating) .
Here's this, and as they walk out
10
the door, you can throw it at them.
11
MAYOR LINDA KUHN:
You-guys, I really --
12
seriously, I have to -- we have to make a decision
13
here because I've got to get out of here.
14
MR. CONNER: And we're not making any
15
official decisions.
16
MAYOR LINDA KUHN:
Oh, I know.
I know.
17
MR. CONNER:
Let me say one more thing.
18
MAYOR LINDA KUHN:
Okay.
19
MR. CONNER: We wouldn't walk in and offer
20
the full amount. Whatever is decided eventually,
21
we're not going to walk -- we will make every
22
effort to save every dime possible.
And we've
23
got, I think, the best -- the best mediator in
24
Central Florida working for us who does this kind
25
of stuff.
I've seen him settle incredibly
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,- 5
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difficult multi-party cases with municipal
defendants that I just
I walked in thinkin'
this case is not going to settle, but we'll try.
And that's happened a few times with him. And if
he settles this case, I'll be very impressed.
MR. MCINTOSH: What kind of authority do you
want on Monday?
MR. CONNER: Well, you know, it depends on if
our goal is truly to get a walkaway of both
parties
MR. MCINTOSH:
That's what we want.
MR. CONNER:
-- then in order to feel
in
order for me to feel like we've given it our best
shot -- and that will be our most likely day to
settle the case --
MR. MCINTOSH:
That's correct.
MR. CONNER:
-- because of Mr. Sawicki
we're talkin' in the 350 to 400 range, I'm afraid.
And you asked me in the beginning, what do I think
they'd take? I think they would take five.
I do.
You know, there's all these maximums out
there about, you know, half is what they want, a
third is what they'll take.
Sometimes there is
some sense in that.
I mean, you know, those kinds
of things come up for a reason. And if you use
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1
that kind of number, actually we're pretty close
2
at four.
I hadn't thought of it in that manner
3
before.
4
But the more prudent exercise, I think, is
5
to look forward at trial and say, a home run's a
6
defense verdict, a catastrophe is a full-value
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verdict for them, but what's maybe the most likely
8
thing a jury would do with a fact pattern here?
9
And assuming we have a judgment of liability
10
against us, I'm thinking the most likely number is
11
going to be between two and three.
I'm believing
12
it will be in that range.
13
COMMISSIONER JONES: And then tack the costs
14
onto it
15
MR. CONNER:
Yeah. And that's just --
16
COMMISSIONER JONES:
not to mention our
17
costs that we're already
18
MR. CONNER:
Right. And I don't know
I'm
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not a part of your insurance issues, so I
and I
20
don't want to know.
21
COMMISSIONER JONES:
I don't like the big
22
number.
But I think with something like this, and
23
like you said with his brazenness to go to trial,
24
the comments he's making about, "I wouldn't have
25
to do anything but one in 20 years," this is one
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1
of those ones where it always comes in like a claw
2
at you.
I think we have to just decide it's
3
better that he just be gone, and figure what that
4
is and work it out.
5
MR. CONNER: And back to the eyes open thing.
6
There are several 2020 entities out there.
There
'''"-
7
is a 2020 bus shelter advertising.
There's a 2020
8
phone booth advertising.
There's this transit
9
shelter thing.
This gentleman Joel Davis we know
10
has been through bankruptcy with one entity
11
before. And this is mere supposition on my part,
12
this is all conjecture, but it may be that if he
13
loses this trial and we get a big judgment against
14
him, it's sort of, so what, I've got two other
15
entities out there.
I don't know.
I do sense a
16
very real self-assurance on his part.
17
MAYOR LINDA KUHN: And so bottom line what
r
'-
18
are we telling him that he has the authority to
19
do?
20
MR. CONNER: Well, I don't know that we're
21
telling me anything specifically now.
22
MAYOR LINDA KUHN:
I know.
But we're giving
23
you a --
24
COMMISSIONER JONES:
It seems that the max
25
that we've gone to is four.
That's the maximum
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1
that came out I heard.
I think when you look at
2
the half, five is probably half, and then a
3
reasonable man could probably look at four and
4
go, if you don't throw the shoe at me, I'll take
5
four.
6
MR. CONNER: Normally, you know, the time
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constraints -- this case is under time pressure.
8
And normally what we'd be able to do is make a
9
proposal for settlement at the mediation.
But
10
with the trial so close, we're not able to do
11
that.
We're too close.
You have to make these
12
offers 45 days before the first day of the trial
13
docket.
14
COMMISSIONER JONES: When's the trial date?
15
MR. CONNER:
The first day of the trial
16
docket is July 22nd. It's a Monday.
17
MAYOR LINDA KUHN: Never goes the first day.
18
MR. CONNER: No. No. And, actually, we will
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not go before August 1st, the Judge has told us.
20
It's a three-week docket. A strange rule, but
21
that's the rule, first date of trial docket, even
22
when you have a date certain.
Well, which truly
23
you don't have a date certain. We've had to Court
24
tell us, you won't go till August.
25
COMMISSIONER WILLIAMS: When we go to
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mediation, you wouldn't present the full $400,000
2
initially?
3
MR. CONNER: Oh, no, no.
It would be a
4
day-long process. And it would start out with the
5
Plaintiff giving their version of events, and then
6
me
7
MAYOR LINDA KUHN:
Remember when I saved the
8
City of Sanford before I was Mayor over the soup
9
kitchen issue?
10
COMMISSIONER JONES: Soup kitchen.
11
MAYOR LINDA KUHN: Harvey Alper was the
12
mediator.
That was an all-day-Iong thing. And
13
then at the end of it, Larry Dale's the Mayor, and
14
he went, you caved.
15
MR. MCINTOSH: What figure are you folks
16
comfortable with?
17
MR. CONNER: And that's the issue.
18
MAYOR LINDA KUHN: Well, that's what I'm
19
trying to get out of anybody so I can close the
20
meeting and get out of here.
21
MR. CONNER:
There is a chance we go to trial
22
and get a defense verdict.
I mean, you know,
23
that's what we do; we try cases.
24
MAYOR LINDA KUHN:
I heard you say -- I've
25
heard you say 400.
Is that what I heard you say?
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I'm not holding you to anything.
I just --
2
MR. CONNER:
Sure. You're right.
I'm not
3
telling you I think you should offer 400. What
4
I'm telling you is, I just want to make sure
5
MAYOR LINDA KUHN: You don't think that
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they'll settle for anything less.
7
COMMISSIONER WILLIAMS: You said 500
8
initially.
9
MR. CONNER: That was, what do I think they
10
would take? If I were to throw out a number that
11
I think they would probably take, I'm believing
12
they would -- they can't not take five, I think.
13
But that's not how I want to evaluate the case.
I
14
want to think about the likelihood of a judgment
15
as to liability and then where that puts us.
16
What's the most likely -- and I wish I could tell
17
you. You know, if we were in a different venue,
18
I'd probably be saying different things about most
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likely verdict.
20
MAYOR LINDA KUHN: 400?
21
COMMISSIONER JONES: I know you don't like
22
it.
I know you hate it.
23
MR. CONNER:
I'm not telling you I like it.
24
MAYOR LINDA KUHN: Okay.
Four hundred.
25
COMMISSIONER JONES:
I think we need to
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just --
MR. MCINTOSH: Let the record reflect the
bottom line, as declared by Commissioner Jones,
Commissioner Williams and Mayor Kuhn was $400,000
at five minutes to four.
COMMISSIONER JONES: We have a contract that
was bad in 2001, and it's going to be back in --
MAYOR LINDA KUHN: And that's on the basis of
a complete settlement of the lawsuit, go away --
MR. CONNER: Absolutely.
MR. MCINTOSH:
-- no more relationship with
2020 Media.
MAYOR LINDA KUHN: Right. Right.
COMMISSIONER WILLIAMS: Go to the other side
of the world.
MR. CONNER: So that's the advice we're
getting.
MR. MCINTOSH: Got it.
MAYOR LINDA KUHN: So then I will
MR. CONNER: Well, I think -- you know, we'll
probably have to go to mediation, and then we will
need a public meeting to approve
MAYOR LINDA KUHN: Okay.
MR. CONNER: -- afterwards.
MR. MCINTOSH: You must let them know at
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mediation, sir
2
MR. CONNER: Yes.
3
MR. MCINTOSH:
what our authority is. But
4
everyone needs to know that it has to be subjected
5
to an approval of the city commission at an open
6
"""
city meeting. -'
MR. CONNER: Absolutely.
7
8
MR. MCINTOSH: Right.
9
MR. CONNER: Absolutely. And I will
10
communicate that clearly.
11
MR. MCINTOSH: Okay.
12
MAYOR LINDA KUHN: Okay.
So we will now end
13
the private meeting --
14
MR. MCINTOSH: Yes.
15
MAYOR LINDA KUHN:
and reopen the public
16
meeting.
17
MR. MCINTOSH: Correct. Let me see if anyone
18
has any other business to do before...
J
19
There is no further meeting to,be conducted.
20
I have checked with the city clerk. We are ready,
21
Mayor, for you to adjourn when you're ready.
22
MAYOR LINDA KUHN: Okay.
I'm ready to
23
adjourn this meeting. Meeting hereby adjourned.
24
MR. MCINTOSH: Okay. Thank you.
25
MR. CONNER: Thank you for your time.
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(Thereupon, the proceedings were concluded at
2
4:02 o'clock p.m.)
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C E R T I F I CAT E
2
3 STATE OF FLORIDA
COUNTY OF SEMINOLE
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I, DONNA CIMINO, RPR, CSR, certify that I was
6
authorized to and did stenographically report the
7
foregoing proceedings; and that the
8
transcript is a true and complete record of my
9
stenographic notes.
11 I further certify that I am not a relative,
12 employee, attorney or counsel of any of the parties,
13 nor am I a relative or employee of any of the parties'
14 attorneys or counsel connected with the action, nor am
15 I financially interested in the action.
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Dated this 22nd day of June 2007.
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DONNA CIMINO, RPR, CSR
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