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DISPOSITION: AGENDA ITEM
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County of Monroe
The Florida Keys
Robert B. Shillinger, County Attorney"
Pedro J. Mercado, Assistant County Attorney **
Cynthia L. Hall, Assistant County Attorney **
Christine Limbert-Barrows, Assistant County Attorney **
Derek V. Howard, Assistant County Attorney**
Steven T. Williams, Assistant County Attorney**
Peter H. Morris, Assistant County Attorney
Patricia Eables, Assistant County Attorney
Chris Ambrosio, Assistant County Attorney
** Board Certified in City, County & Local Govt. Law
May 25, 2017
Kevin Madok, Clerk of the Circuit Court
Sixteenth Judicial Circuit, State of Florida
Monroe County Courthouse
500 Whitehead Street
Key West, FL 33040
BOARD OF COUNTY COMMISSIONERS
Mayor George Neugent, District 2
Mayor Pro Tern David Rice, District 4
Danny L. Kolhage, District 1
Heather Carruthers, District 3
Sylvia J. Murphy, District 5
Office of the County Attorney
1 1 1 l 12`h Street, Suite 408
Key West, FL 33040
(305) 292-3470 — Phone
(305) 292-3516 — Fax
In Re: Monroe County v. Post Buckley, et al., Case No.: CA-K-1995-402
Dear Mr. Madok:
Please find enclosed herewith the transcript of the following closed attorney/client sessions of
the Monroe County Board of County Commissioners regarding the above -referenced matter:
November 20, 2002; and,
September 28, 2005.
Under F.S. 286.011(8), the transcript may be part of the public record because the litigation
has concluded.
Thank you for your assistance with this matter. Please contact me should you have any
questions.
Sincerely,
Robert B. Shillinger
Monroe County Attorney
Enclosures
MEETING OF THE
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
ATTORNEY -CLIENT CLOSED SESSION
RE: MONROE COUNTY v. POST BUCKLEY SCHUH & JERNIGAN
HELD AT THE
MARATHON GOVERNMENT CENTER
2798 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
September 28, 2005
8:35 - 9:20 AM
Fy
COMMISSIONERS PRESENT:
MAYOR DIXIE SPEHAR
COMMISSIONER GEORGE NUGENT
COMMISSIONER DAVID RICE
COMMISSIONER CHARLES "SONNY" McCOY
ALSO PRESENT:
ROBERT SHILLINGER, ESQ., COUNTY ATTORNEY
TOM WILLI, COUNTY ADMINISTRATOR
WAYNE LaRUE SMITH, ESQ.
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(The BOCC meeting commenced at 8:35 a.m. as follows:)
MAYOR SPEHAR: I'll call this meeting to order.
This is the September 26th [sic] BOCC meeting. We
will start with the, a few moments to recognize those
that have suffered in the storms, and then we'll do a
pledge.
(A few moments of silence followed by the pledge
of allegiance.)
MAYOR SPEHAR: All right. I believe that we need
to close this meeting so that we can have a closed
session.
MR. SHILLINGER: Yes, but if you, before you do
that, could go to section one on the prepared -- prior
to going into that session.
MAYOR SPEHAR: Okay. Then read the script?
MR. SHILLINGER: Yes.
MAYOR SPEHAR: A closed attorney -client session
pursuant to Section 286.011(8) Florida Statutes will
now be held. It is estimated that this meeting will
take 30 minutes.
The persons attending the meeting will be the
County Commissioners, the County Administrator Tom
Willi, the County Attorney Bob Shillinger, Assistant
County Attorney Bob Shillinger, Attorney Wayne Smith,
Esquire, who acting as special litigation counsel for
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the County in the case that is subject to this closed
session, and a certified court reporter.
Since the law prohibits any other person from
being present at the closed session, the
Commissioners, the County Administrator, the attorneys
for the County and the court reporter will now remain
in this meeting room and all other persons are
required to leave the room. When the closed session
is over, we will reconvene and reopen the public
meeting. This public meeting is now closed.
MR. SHILLINGER: Vicki, I'd just ask that you
make sure that we're not feeding.
(Off-the-record discussion and brief pause while
public exited the room.)
(Closed session commenced as follows:)
MAYOR SPEHAR: All right. I now call this closed
session to order.
For the record, this meeting is being held upon
the request of the County Attorney Richard Collins who
announced at the prior public meeting held on August
the 17th, 2005, that he needed advice concerning the
pending lawsuit Monroe County vs. Post Buckley Schuh &
Jernigan. At that meeting the Board approved holding
this closed session on 9/21/05 and a public notice was
given by publication in the Key West Citizen on
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8/21/05, the Keynoter on 8/24/05, and The Reporter on
8/26/05.
Due to the impact of Hurricane Rita on the
Florida Keys, the entire regularly scheduled BOCC
meeting to be held on 9/21/05, including this closed
session, was rescheduled for Wednesday, 9/28/05.
In addition to the general announcements
published by Monroe County rescheduling the entire
BOCC meeting of 9/21/05 for 9/28/05, a specific notice
of rescheduling for this closed session was given by
publication in the Key West Citizen on 9/25/05 and the
Keynoter on 9/24/05, unable to meet publication
deadline for The Reporter.
A copy of the original notice and notice of
rescheduling is being given to the court reporter for
inclusion in the records.
For the record and the benefit of the court
reporter, each of us will state our name and position
starting with the Commission.
COMMISSIONER RICE: David Rice, Monroe County
Board of County Commissioners.
COMMISSIONER NUGENT: George Nugent, Monroe
County Board of County Commissioners.
MAYOR SPEHAR: Dixie Spehar, Mayor, Board of
County Commissioners.
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MR. SHILLINGER: Bob Shillinger, Assistant County
Attorney.
MR. WILLI: Tom Willi, County Administrator.
MR. SMITH: Wayne LaRue Smith, Special Counsel.
MAYOR SPEHAR: Just as a reminder, we will only
be discussing settlement negotiations and strategy
relating to litigation expenditures. We cannot take
any decisive action at this meeting. We can only
provide information and direction to the attorneys.
Any decisions this Board makes concerning this case
must be done in a meeting open to the public.
Let's start our discussion with the County
Attorney.
MR. SHILLINGER: Good morning. We asked to have
this closed session in the Post Buckley case because
there were several post -trial issues that needed to be
addressed.
In order to preserve the County's rights, we went
ahead and filed a notice of appeal even though the
Board had given us previous direction not to do that
unless there was an issue that came up that we thought
it was worth while. So we filed a notice of appeal
just to preserve that right. I believe Mr. Smith will
talk to his understanding of the chance of the merits
of the appeal. I'll preface it by saying, we share
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the opinion that it would be a longshot.
So the second big issue is Post Buckley has moved
for attorney fees in the amount of $565,000.
Obviously, by the looks on your faces, that's a large
figure. That's a large figure for anybody. And so we
wanted to discuss some of the options we have for
contesting that and lay out some potential costs and
get some direction as to how far we want to go to
fight that amount. And, with that, I'll turn it over
to Mr. Smith.
MR. SMITH: Good morning. Can you all hear me
all right? Sue, you can hear me?
THE COURT REPORTER: Yes.
MR. SMITH: First off, I'll just say as a preface
that will follow on to Mr. Shillinger's observation
that our prospects on appeal don't inspire a lot of
confidence is because from the commencement of the
trial process this time around, which involved a
number of pretrial motions and all the things that we
go through in complex civil litigation, Judge Payne
had, without exception, ruled in the County's favor on
virtually every issue. As best one can tell, the
presentation of the evidence went in an orderly, if
not a pretty welcome fashion. And, indeed, the jury
was out for quite some time and the jury, as juries
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often do, sent back a number of written questions
about issues that they wanted clarified for them and
virtually all of the clarification was the jury asking
about how to calculate some of the detail points of
the losses that the County had incurred following the
decision to finance the cost estimate provided by Post
Buckley.
So it was, to put it mildly, surprising when the
jury came back and said that with regard to both
questions, whether Post Buckley had breached its
contract or whether it had failed to meet its minimum
duties, that the jury essentially let them off the
hook. I don't have any explanation for it, but I can
tell you that with one small exception, I don't think
that we have, as a result, a record on which we could
confidently say we're going to go to the Court of
Appeals and get this injustice corrected.
MR. SHILLINGER: Just for the -- I'll interrupt
for a second. For the record, Commissioner McCoy has
entered the room. It's 8:45.
MR. SMITH: Thank you. The one exception is an
issue that arose at closing argument where in a
previous deposition, as you all know this case has
gone on for 10 years, Dave Koppel was deposed on three
different occasions and on one occasion, he was asked
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a question and, of course, this was completely taken
out of context but that's one of the many strategies
often employed by lawyers at trial. But, at this
previous deposition Mr. Koppel was asked the question,
"And if Post Buckley gave a bad estimate that cost the
County a lot of money, what happens?" And Dave
Koppel's answer was, "Well, I guess that's the
County's problem, isn't it."
And this had not come up during trial, but during
closing argument the opposing counsel had this large
poster purporting to be a time frame of the story
unfolding and had blown up just that question and
answer, to which I objected and before the jury came
in, said, Your Honor, this wasn't a part of the
evidence at trial, although it could have been if they
had put it in, and therefore it's improper in the
closing argument. And Judge Payne looked at it and
shrugged and said, well, I think it relates to what
we're here for, so I'll allow it.
Now, could I tell you that's what influenced the
jury? No, of course I couldn't do that. Could I
speculate that the jury shared some of the feelings
that are not new to any of you all that oftentimes the
public feels dissatisfied with their government for a
variety of reasons? That's certainly possible.
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During the voir dire, questions came up where the
panel members, prospective jury panel members were
asked, do you think you would be biased in favor of
your County, whereupon the broke into laughter,
suggesting that that was an absurd thing to consider.
In any event, that's where we are today. I'm
happy to answer any questions specifically about the
trial, but I think you might discover that I remain
perplexed, particularly since on the first time
around, the jury verdict had obviously been different.
In any event, where we are today is, and I'm
going to hand out a spreadsheet I've prepared. I'm
assuming we can then just make that a part of this
record and otherwise, I'll collect them back from you,
but I think it will help me to just lay out my kind of
sense about the economics of what we're looking at.
Starting with the figures in sort of the upper
left quadrant, amount requested for costs and fees,
again, I'll go into detail if it's needed, but in the
interest of time and getting to the analysis, I'll
just sort of go ahead in summary fashion.
Post Buckley is asking for a total of $532,000 in
attorneys fees as attorneys fees accrue from December
of the year 2000 to date and costs in the amount of
$33,500 for a total request of $565,000.
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I have speculated, and I will underline that it's
speculation because there's an awful lot of work to do
to get to a more precise analysis, and then it's still
kind of a bet because it's up to the judge, but I
think that if we do not defeat Post Buckley's
entitlement to attorneys fees, I think that the lower
limit is probably around $300,000. I think that
they've asked too much for a variety of reasons. Mr.
Shillinger and I have had an opportunity to discuss
them. Again, I'll spare you the details on that, but
that's simply my best effort to give a ballpark
estimate of what I think the minimum is if we do not
defeat entitlement.
If we do defeat entitlement, and in a moment I'll
tell you what I think the prospect of that is, it most
assuredly will require a trip to the Court of Appeals.
Now, I can ask Post Buckley to concede that they're
not entitled to attorneys fees, but I expect that
they're not going to agree to that. I asked Post
Buckley to give me an extra 30 days to file the
opening brief in the appeal to give me time to come
before you today and get some authority to settle
their claims for fees, and they said, nothing doing.
So they certainly feel they're in a position to
exercise that kind of power and have elected to do so.
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We instead just filed the motion, by the way, to ask
the Court for that.
If we go on appeal, there are -- the entitlement
issue arises out of an offer of judgment that was
prepared and served by Post Buckley in December of
2000. We believe there's a chance that it would be
ruled legally insufficient to form a basis for
attorneys fees because it's not in the right form and
it doesn't say the right things. But here's the
problem.
The State of Florida's Court of Appeals are
divided up into various districts. We're in the Third
District. The Third District addressed this issue
once in 1999, six years ago, and said we're not going
to exalt form over substance on an offer for judgment
and made a ruling that frankly would dictate that we
lose on this issue.
However, subsequent, both prior to that time and
subsequent to that time, at least three other
districts, which have sort of equal authority except
in our physical territory but in the state have equal
authority, three other districts have said, oh, no,
the Third District is wrong, we're right, and that's a
legally insufficient basis for anyone to get any
attorneys fees.
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When there's a conflict among the circuits, then
the issue is ripe to be addressed by the Supreme Court
of Florida, but someone has to go through the process
of getting to, through a District Court of Appeal
appeal and then ask the Supreme Court to solve the
problem. Because what we have is a District Court of
Appeal's opinion has the force and effect of law in
the State of Florida, so now we have conflicting law,
which makes it difficult for people to guide their
decisions.
I also think that since three of the districts
have hands down on several occasions said that the
form is important, that if the Supreme Court were to
address this issue, it seems more likely that the
Supreme Court would side with the majority of
districts and say the Third District was mistaken.
But, in order to get through all that with no
guarantee that we actually would prevail, -- in fact,
the Supreme Court could say, well, the majority of the
courts are wrong, the Third District had it right back
in 1999 and Post Buckley gets all their fees -- my
estimate of getting through the appeal includes a
couple of items. The transcript of the jury trial
which is required, would cost between 16 and $20,000.
The fees for an expert attorney to evaluate the
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reasonableness of their claim, which only, we can only
avoid if we concede that the amount they're asking for
is reasonable, is going to cost between 10 and
$20,000. And then we have effectively two appeals,
one to the Third District Court of Appeal and, if the
Supreme Court elected to take the case, -- it would be
an election on the Supreme Court's part, it's not
mandatory -- then we'd have another appeal to go
through with the Supreme Court. Again, my estimate is
that the cost of doing that is between 96,000 and
$140,000.
So to summarize that, here's what I think we face
today. I do not think it's realistic that Post
Buckley is going to take $100,000 or $50,000 or zero
dollars without a fight, and a fight means going
through the appeal process.
I think -- and I certainly don't have a perfect
crystal ball. If you had asked me before the trial
who was more likely to win, I would have said, we are,
we've already proven that once, but here we are today.
So to the extent I even have a crystal ball, I've
discarded it, I've left it at home and I'm here to
tell you that I can't tell you at all what the outcome
of any course of action will be except this; it's
guaranteed we can write them a check for $565,000.
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I'm fairly certain they'll take something less than
that, the question is how much. I don't believe that
I could persuade them on my best day to take anything
less than half that, which would be in the
neighborhood of between 250 and $300,000. In order to
fight them to get them down to nothing or at least get
them down to just their $33,000 in costs, I believe
will cost between 96 and $140,000.
So in all of that, I need to first hear any
questions that you have of me and then hear from the
Commission the direction that you prefer to take,
given what we're facing.
MAYOR SPEHAR: You're saying that their costs are
the 33,588 and if we appealed this, it's going to cost
us anywhere from 100 to 140, so that on top is -- this
is a very bitter taste in my mouth to say, but
wouldn't it be more prudent just to settle for the 300
and stop?
MR. SMITH: If they can take it, I certainly can
see a number of reasons to take advantage of that if
they would do it. I mean, given that what we face
today is, if we spend, let's say we spend 140 on
appeal, they're going to add onto that their fees, so
let's pump that up to 200 and add the 200 to 565, that
makes it 765. If they took 300, they'd be taking less
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than half of the one end of our exposure. And pure
economics, leaving bitter taste aside, given that we
can't put probabilities on any of the outcomes
occurring, I could certainly see the wisdom in that.
MAYOR SPEHAR: Is there comments from the Board?
COMMISSIONER RICE: Well, I certainly do have
some. This is, it's unpleasant. It certainly does
leave a bad taste. On the other hand, this has been
one of those cases where, without anyone being able to
predict it, we've been chasing good money with bad for
some time.
You mentioned that you think that they would take
something around 50 to 60 percent maybe?
MR. SMITH: That's simply because in my
experience of doing this, and I first went to work as
a law clerk when I started law school 25 years ago,
I've never seen a similar case where the other party
settled for anything less than half. And that's, you
know, that would be a pretty good deal because right
now, they would have reason to feel a lot of
confidence. So that's, frankly, an optimistic
projection. But on the other hand, they may be
looking at it as, gee, we could fight all this, we
could lose at the end of the day and have to pay all
of their fees.
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So it may look, I don't know, they act quite
cocky and confident, but in fact they may be more
realistic about it.
COMMISSIONER RICE: What if we authorized you to
negotiate this figure with them up to 60 percent of
the total figure? Would that serve your purpose or
your needs today?
MR. SMITH: It would -- I think I would have to
have along with that or it would certainly be helpful
to have a backup, because here's the timing. I've
asked the Court of Appeals to give us until mid
November to file the opening brief. If they do not
accept this, then I would need to know whether to
pursue that or not in the Court of Appeals. That's
number one. And then number two, I'd also need to
know whether to negotiate an amount that's higher than
that as the amount, but proceed with contesting the
entitlement because it will cost, by the time we go to
the hearing and have the various experts and their
depositions and all of that, it's a pretty expensive
proposition to fight about the amount and, frankly, I
believe, I could get that resolved.
So short answer to the question is, yes, that
would be helpful, and I would need a backup plan. The
backup plan would be, all right, proceed at least with
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those steps of the appeal that you would have to do
until I can come to the next closed session to discuss
it and tell you their position or tell me to fold my
tent and go home, in which case you've in effect
authorized a payment of 565,000.
COMMISSIONER NUGENT: This reminds me of going to
bed the other night with LSU winning 21 to nothing and
waking up the next morning and finding them having
lost the football game. This has gone from the absurd
to the sublime from the standpoint that we were
thinking that we had won the case at one point in
time, and we did, and it was reversed and now we're
looking at forking out $565,000 worth of taxpayers'
dollars with no relief in sight.
Wayne, what is -- why can't Dixie walk over to
Post Buckley and talk to, as Mayor of Monroe County,
and cut a deal with the chief executive officer so we
can get out of this situation? It seems like --
MR. SMITH: There is absolutely nothing stopping
you from that. I wouldn't have recommended it before
the trial.
I'll tell you what I can't -- what's hard for me
to sort out is immediately after the trial, I went to
Post Buckley's attorneys, I can't go to Post Buckley
directly, and I said, all right, let's see what we can
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do to see if we can just close this chapter and close
this history. And frankly, said, and I want to remind
you it's been a very long time that Post Buckley's had
the opportunity to do any kind of work for Monroe
County and all Post Buckley does on the planet is work
for government entities. That's all they do.
COMMISSIONER NUGENT: Do you think --
MR. SMITH: And the response was, well, I'll talk
to the client. This was from the senior managing
partner at the firm. He said, I'll talk to the
client. He said, I can tell you it's a different
culture and it's a different team that's running the
company today, so let's see what their thoughts are.
And then the next communication I got was, we're
not dealing, no way, no how, from a different attorney
who tried the case. And I never know in that
circumstance whether he's communicating his client's
position or whether he's puffing up to really, you
know, sail home with his victory.
I can tell you, they wasted no time getting their
press releases out nationally about what great victors
they were in their battle against Monroe County. I
read the press releases. I had the reporters calling
me for comment, that sort of thing. So I know
certainly the attorneys wanted to cement their
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position as victors, but I don't have any notion about
what senior management at Post Buckley would do.
I don't think you can cause the County any harm
in initiating contact with senior management.
COMMISSIONER NUGENT: I ask what would
Wilhelmenia have done in a situation like this.
MR. SMITH: That's very difficult to say because
Wilhelmenia was one of those who initially said, let's
sue the blank blank.
MAYOR SPEHAR: Yes. Yes, she did.
COMMISSIONER NUGENT: I know, I understand.
Well, Dixie being the very attractive woman that she
is ought to march herself into that front office and
cut a deal for us and get us out of this situation.
MAYOR SPEHAR: What I find outrageous is when we
won, they tried to pay off what they owed us by
working for us. Remember that?
COMMISSIONER NUGENT: Yes.
MAYOR SPEHAR: That was outrageous. Why would we
put the fox back into the henhouse?
This is frustrating, very frustrating. I
personally do not want to go on record paying them the
565. I think that's outrageous. But, we have no, no
way to control what will come by their appeals.
MR. SMITH: Well, in this case, it would be our
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appeals, but you're right, we have no way of
predicting except to say that we have some prospect of
defeating their claim to entitlement to fees, which is
the bulk of this, but I don't think we're going to
convince them of that because we've got this sort of
lone Third District opinion.
But the rule is, if we go back to the Third
District, what they're most likely to say is, look, we
might be wrong since every other district disagrees
with us, but you're going to have to take it up with
the Supreme Court, we're not backing off of what we
said. And if they do that, then we have, you know,
we've got -- it will be probably about a three-year
process to get through both the District Court of
Appeals and the Supreme Court and, again, the Supreme
Court may not agree.
MAYOR SPEHAR: And then we're up to the five
without --
MR. SMITH: And then we're probably up to more
like seven.
MAYOR SPEHAR: Right. Which I was going to say,
without their additional costs.
MR. SMITH: Right.
MAYOR SPEHAR: This Board, though, is this Board
giving me the feeling that they would like to work
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with Post Buckley in the future?
COMMISSIONER McCOY: Is that part of your
negotiating tools?
MAYOR SPEHAR: Yes.
COMMISSIONER McCOY: To dangle this in front of
them?
MAYOR SPEHAR: Uh-huh.
COMMISSIONER McCOY: I just don't see any, I
don't see where we should put any constraints upon you
to do that, but I also at the same time don't see any
reason why can't walk and chew gum and file at the
same time.
MAYOR SPEHAR: So you, you're saying you want to
go through with the appeal?
COMMISSIONER McCOY: How many, how many --
MAYOR SPEHAR: Are you saying you want to, at the
same time, go through the appeal process?
COMMISSIONER McCOY: Why not?
MAYOR SPEHAR: Hmm.
MR. SHILLINGER: Understand, we're talking
potentially two appeal -- actually, three appeal
processes. We have the trial decision that's up there
now that we don't think we have much of a chance on.
Then we have, once that's resolved, if we can't
negotiate a settlement, once that's resolved, we have
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to deal with the issue of these attorneys fees. And
if we're going to fight back, we're going to have to
take an appeal from that to the Third DCA and then
again to the Supreme Court if we think we're going to
get to the ultimate position of not owing them much if
anything. So that 700 figure is more, I'm thinking
more like eight or nine.
MR. SMITH: Well, and we do have to make the
separate decision of appealing the trial court
outcome, which we don't have a lot of confidence
about.
Two, we could just concede that, concede that the
jury made a decision, we don't like it, we're not
happy about it, but we're not going to get any relief
from it, and then just appeal the entitlement to
attorneys fees issue. It's less expensive and it's
more narrowly focused on where we think we're most
likely to get some relief.
However, it eliminates two things; one, the
longshot possibility that we'll get out from under it
by appealing the, say the issue of the improper
closing argument, number one; and number two, it would
then eliminate the one piece of uncertainty because,
you know, the uncertainty cuts both ways. As long as
we're negotiating with them on the other side, no
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matter how confident they feel about their prospects
on appeal, surely they have to recognize that during
the long period that the jury was out and asking these
questions, it was Post Buckley's attorney that came
over to me and he said, I'm betting that they're going
to split the baby again just like they did the last
time, what do you think? Want to put a bet on it? To
which I said, of course not, that seems pretty
apparent to me. I can also tell you that to the
extent that I can read human nature, they looked as
surprised as we were and the judge was at the outcome.
So certainly, they have a very grounding
experience here that, although it went in their favor,
legal proceedings can be unpredictable. So if we
concede the one appeal to save money, we lose the
advantage of having the uncertain future facing both
sides.
COMMISSIONER NUGENT: Well, I think that, if I
understand Commissioner McCoy correctly, why not
appeal it, but at the same time, have the Mayor go
talk directly to whomsoever at Post Buckley and see if
we can cut a deal. And I would only like to amend
that amendment that if the CEO happens to be a female,
that we send Sonny.
MAYOR SPEHAR: Well, are you saying then we
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concede to the jury's opinion and appeal to the
entitlement, and also try the one on one?
COMMISSIONER NUGENT: I think that's our only
relief.
MAYOR SPEHAR: Sonny?
COMMISSIONER McCOY: Yes, I can agree with that.
MR. SMITH: Okay. So we've focused then
specifically on the attorneys fees, leave the outcome
of the trial where it is, and take a twofold strategy.
One is, pursue a challenge of the attorneys fees
through appeal if necessary. And at the same time, to
work at what I'll refer to as at an administrative
level as opposed to a legal level to contact Post
Buckley directly to see if you can get a resolution.
Is that what I understand?
MAYOR SPEHAR: (Nods head.)
COMMISSIONER RICE: Could I ask for a little
clarification? Would we lose anything by authorizing
you to move ahead with an appeal of the award, as well
as the attorneys fees, up to a point? Would we leave
you in a better negotiating position, at the same time
we've got Dixie dealing with them, you give the
appearance that you are appealing the entire ball of
wax? That leaves more of an uncertainty in their
mind.
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MR. SMITH: It leaves more uncertainty, and there
are price tags. The price tag would be, the most
significant and immediate one, is we'd have to pay for
the trial transcript and that's between 16 and
$20,000. And then, we will have to move forward to
prepare to file in the middle of November and we
really couldn't afford to delay that anymore because
it will take the available time between now and then
to get that accomplished. So there will be that
expense.
So let's say if we put a time line on it of
December 1st, you know, my best guess is that we're
going to spend 30 to $35,000 to keep that uncertainty
out there and whatever effect it has.
COMMISSIONER RICE: That seems to me to be a
reasonable investment to give you that leverage, just
from my viewpoint.
MAYOR SPEHAR: What is the feeling of the Board?
Sonny, do you --
COMMISSIONER RICE: We're trying to save 250,000.
We're willing to spend 30,000. That seems a
reasonable tradeoff.
COMMISSIONER McCOY: Wayne, you're talking about
a much more narrow approach that you're talking about.
Is this before a jury then again or does it go
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directly to the, to the --
MR. SMITH: No. We don't have any prospect right
now of going before a jury again. The issue of
whether they're entitled to attorneys fees, one, and
how much they get, would be decided by the judge here,
the trial judge, Judge Payne, who certainly has shown
no animosity towards the County whatsoever. Again,
you know, the added surprise is that on every single
skirmish where the judge had to make a ruling, he
ruled on all the important ones in our favor.
The appeal of the jury's decision would go in
front of a three -judge panel in the Third District
Court of Appeals, but they don't even look at it until
the whole briefing process is completed and at the
timing we have right now, that's not going to be
completed until after the first of the year.
COMMISSIONER NUGENT: Wayne, what is the time
line that we have to do this by?
MR. SMITH: Right now, the most important time
line is the extended deadline to file the initial
brief in the appeal of the jury's verdict, which is
the middle of November. The motion for attorneys fees
hasn't even been set for hearing and that probably
won't get set for hearing until, I think, January at
the earliest because we've got to hire an expert,
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they've got to find a day of time because it's going
to take at least a day in front of the judge to go
through the analysis. The application for fees is,
I'm holding in my hand, this is -- and it has to be
dissected line by line.
So we've got on, if you give me permission to
pursue the initial stages of the appeal, then we've
got a good five, maybe six months.
COMMISSIONER NUGENT: Where I was going with
this, with it being mid November, Mayor Spehar has
enough time to attempt to speak with someone with Post
Buckley and cut a deal. So we could give a tentative
agreement to move forward with your action while Mayor
Spehar hopefully could come back with a better deal
prior to that to solve the whole problem and we don't
have to extend anything.
MR. SMITH: Yes, you could do that. And then the
only question I would have is whether you wanted me to
simultaneously work with any authority you gave me
directly with the attorneys or you wanted me to sit
back and see what happens with the Mayor's efforts.
COMMISSIONER NUGENT: Whatever would be, in your
thinking or the Mayor's thinking, would be the most
efficient manner in handling that situation.
MR. SMITH: Okay. Then I think it would make
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sense then if both the Mayor and I had a limit on
authority, then she and I could confer certainly as
long is it's only the two of us, and between the two
of us figure out what's the next step. You know, she
runs into a brick wall at the administrative offices,
then maybe it then becomes appropriate for me to go to
the attorney's offices.
COMMISSIONER NUGENT:
thinking.
COMMISSIONER RICE:
Exactly. That's my
Sounds a reasonable approach
to me. That way, you've got some leverage there with
that uncertainty and I think that should help you.
MAYOR SPEHAR: But what I'm getting from the
Board is, and one of the negotiations, possible
negotiations, is you would open the door to Post
Buckley working with Monroe County again?
COMMISSIONER NUGENT: Sure.
MAYOR SPEHAR: Because that was turned down
flatly how many years ago.
COMMISSIONER RICE: I imagine that the gentleman
who made this error is now building igloos, has been
for many years. So I really doubt very seriously that
we'd be dealing with a firm --
MR. SMITH: So I can talk to the Mayor about some
conditions to put on that. One thing that really came
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out in clarity this time around is that what happened
here is the Homestead office didn't have qualified
personnel and because they didn't have appropriate
organizational structures in place, the Homestead
office did not go through any kind of quality control
with the Miami office. But the Miami office and the
other major offices of Post Buckley have extremely
capable personnel, but at the time, the Homestead
folks just weren't equipped for this kind of a project
and they didn't know it.
COMMISSIONER McCOY: Are you familiar with any
connection that Bud Post may still have with the
company?
MR. SMITH: No, I am not.
COMMISSIONER McCOY: Does anybody? You do?
COMMISSIONER RICE: I'm sorry?
COMMISSIONER McCOY: Do you have any knowledge of
any relationship Bud Post may still have with the
company?
COMMISSIONER RICE: No.
MAYOR SPEHAR: We need to research the principals
to see which is the better one to approach.
MR. SMITH: There's a fair amount of information
out there and you and I can talk about it. There's
some other information about some other problems
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they've had that suggest to me that they really ought
to want to make this go away and not have this going
on.
MAYOR SPEHAR: Right.
COMMISSIONER McCOY: Suppose we authorize that,
that you deal directly with the attorney here and find
some kind of approach and path that you want to take
that seems reasonable. You have legal advice and
everything available to you there. And then you make
the decision on that.
MAYOR SPEHAR: And if it's going south, we give
Mr. Smith the ability to start the appeal process?
COMMISSIONER McCOY: If it is going south, then
that's it.
time.
MAYOR SPEHAR: Intent, so that we're not losing
COMMISSIONER RICE: Well, let me re -say if it's
going south, I think we should have another meeting
and regroup.
MR. SHILLINGER: Well, what I was aoina to
suggest is that we, as a housekeeping matter, we go
ahead and schedule another closed session for the next
BOCC meeting, which will be the middle of October, and
I'll ask for that at the open session so, you know, as
part of the regular process and then set it up so we
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have it in place. Whether we need it or not, we can
always ask for it ahead of time and then we can cancel
it if we don't need it.
MAYOR SPEHAR: Right. And am I allowed to take
you with me in this conversation in case there's
something that I'm not aware of that --
MR. SMITH: I think you and I can talk about
that. If you take me, they get to take their lawyers
and it will be a different dynamic.
COMMISSIONER NUGENT: Absolutely.
MR. SMITH: So you may want to approach it on
your own, but you and I can certainly talk beforehand
and I can be around the corner with my cell phone on.
MAYOR SPEHAR: Super.
COMMISSIONER RICE: Shakespear wasn't entirely
incorrect.
MAYOR SPEHAR: All right.
MR. SMITH: And you may or may not be surprised
to learn I concur.
I have one last question. Does the Mayor or
myself or the two of us together have any monetary
authority if the opportunity comes up to cut a
settlement that requires writing some check?
MAYOR SPEHAR: Are you giving me the ability to
go to --
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COMMISSIONER RICE: I'm comfortable with that.
MAYOR SPEHAR: -- no more than 60 percent?
COMMISSIONER RICE: I was thinking 60 percent. I
don't know. That's not a magic number.
MR. SHILLINGER: And of course, you know, this
isn't a hard agreement because --
MAYOR SPEHAR: Pardon?
MR. SHILLINGER: This isn't a hard agreement on
that number because we're in a closed session, we have
to do that, an agreement on a settlement, has to be
done at the open session. So this is a
recommendation.
COMMISSIONER McCOY: I don't think you were
talking about that, were you?
COMMISSIONER NUGENT: Yeah.
MAYOR SPEHAR: Yes.
MR. SMITH: I'm sorry? I was taking a note.
COMMISSIONER NUGENT: Yeah, I think he was.
COMMISSIONER McCOY: Okay.
MR. SHILLINGER: I was just advising that any
agreement would have to be brought back for
confirmation at an open session.
COMMISSIONER McCOY: Right.
MR. SMITH: No, but what I'm thinking is, there's
two possible scenarios. We go in and we say, we've
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been empowered to talk to you, but we have no
authority and we have no idea of what will fly, which
is generally the position that I'm in until I come to
a meeting like this, as opposed to the best we can do,
because Mr. Shillinger is absolutely correct, we can't
make a decision even here, even if we come back. We
can only make a decision with the Commission meeting
at a properly noticed public meeting.
But if, for instance, you set the authority at 60
percent, then that gives us the ability to say, at the
closed session meeting, the decision of the Commission
was that they would go for this. Now, we have to go
to a public meeting and we get to hear from the
public, so it's not done until it's done, but at least
that gives us the ability to say this has a good
chance of going because of the conversations we've had
in our private session.
COMMISSIONER RICE: I think we should do that. I
think we should give you that authorization because I
think it strengthens your position.
MAYOR SPEHAR: Do we need anything further then
at this time?
MR. SMITH: I think I understand our approach and
what the scope of our ability and authority is and
I'll look forward to speaking with you, Mayor, after
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this meeting.
MAYOR SPEHAR: Yes, I'll need to meet with you to
do all the crib notes so that I am not missing
anything.
MR. SMITH: We can meet at your office or mine
and go through it very carefully.
MAYOR SPEHAR: Great.
MR. SMITH: Okay?
MAYOR SPEHAR: Thank you.
MR. SMITH: Thank you very much.
MAYOR SPEHAR: Do I just do the closing now or do
you want me to --
MR. SHILLINGER: Yes. Unless somebody else has
anything else to add, we'll just close the closed
session.
MR. SMITH: And, if I may, may I take those
spreadsheets and make them a part of the transcript?
They won't become a public record until the conclusion
of the case.
MAYOR SPEHAR: All right. Are we ready to
terminate?
MR. SHILLINGER: Yes, we are.
MAYOR SPEHAR: Is there anything that the
Administrator wants to say before this is terminated?
MR. WILLI: No, ma'am.
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MAYOR SPEHAR: Anything from the Commission?
COMMISSIONER McCOY: Let's take a break.
MAYOR SPEHAR: Do you have anything that you want
to say before I close this session?
COMMISSIONER NUGENT: Just do a good job.
MAYOR SPEHAR: Okay. This closed session is now
terminated and we will reconvene in the public meeting
after we take a short break.
(Closed session concluded at 9:20 a.m.)
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36
CERTIFICATE
STATE OF FLORIDA, )
COUNTY OF MONROE, )
I, SUZANNE F. EX, CVR, Court Reporter and Notary
Public in and for the State of Florida, do hereby certify
that the foregoing pages numbered 1 to 36, constitute a
true and correct record of the proceedings in the above -
styled case.
I further certify that I am not an attorney or
counsel of any of the parties, nor a relative or employee
of any attorney or counsel connected with the action, nor
am I financially interested in the action.
Dated this 7th day of October, 2005.
za-wt� �. r
Suzanne F. Ex, CVR
Notary Public, State of Florida
SUZANNE F.F. EX
MY COMMISSION # 00 437962
EXPIRES; July 27, 2009
nondw-(Vu WAVY P016 undOmmiers
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a. J
NOTICE OF RESCHEDULING
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY
NOTICE OF ATTORNEY-CLIENT CLOSED SESSION
The Board of County Commissioners of Monroe County, Florida, pursuant to Section
286.011(8), Florida Statutes will hold a Closed Attorney-Client Session during a public meeting to be
held on Wednesday, September 28, 2005, at 8:30 A.M., at the Marathon Government Center, 2798
Overseas Highway, Mile Marker 47.5, Marathon, Florida. Please note: The Closed Session was
originally scheduled for Wednesday, September 21, 2005 but was rescheduled due to the possible
impact of Hurricane Rita on the Florida Keys.
Those persons attending the Closed Session will be the County Commissioners, County
Administrator Thomas J. Willi, County Attorney John R. Collins, Assistant County Attorney Bob
Shillinger, litigation counsel for the County Wayne Smith, Esq., and a certified court reporter. The
,.4
purpose of the Closed Session concerns pending litigation in the case of Monroe County v. Post,
Buckley, Schuh & Jernigan in which the County is presently a party. At the end of this Closed
Session,4 the public portion of the meeting will be opened.
Dated at Key West, Florida,this 22nd day of September, 2005.
Office of the County Attorney
Publication dates
Keynoter (Saturday) 9/24/2005
Key West Citizen (Sunday) 9/25/2005
cc: Kathy Fegers
Monroe County Court Reporters
Monroe County v. Post Buckley
Fees & Costs to Prevailing Party:
Amt Requested Lower Limit
Taxable Costs: $ 33,580.51 $ 25,000.00
Attorneys' Fees $ 531,909.50 $ 275,000.00
Total Fees and Costs $ 565,490.01 $ 300,000.00
Cost to Appeal:
Upper Limit Lower Limit
Transcript $ 20,000.00 $ 16,000.00 ,:P,
Expert re: Fees $ 20,000.00 $ 10,000.00 ; ski
3rd DCA $ 65,000.00 $ 45,000.00 ;
Supreme Court $ 35,000.00 $ 25,000.00 ir, 1 :
Total Cost of Appeal* $ 140,000.00 $ 96,000.00 '� .) .
*Recoverable if Monroe County prevails 6)� .
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•
Monroe County v. Post Buckley
Fees & Costs to Prevailing Party:
Amt Requested Lower Limit
Taxable Costs: $ 33,580.51 $ 25,000.00
Attorneys' Fees $ 531,909.50 $ 275,000.00
Total Fees and Costs $ 565,490.01 $ 300,000.00
Cost to Appeal:
Upper Limit Lower Limit
Transcript $ 20,000.00 $ 16,000.00
Expert re: Fees $ 20,000.00 $ 10,000.00
3rd DCA $ 65,000.00 $ 45,000.00
Supreme Court $ 35,000.00 $ 25,000.00
Total Cost of Appeal* $ 140,000.00 $ 96,000.00
*Recoverable if Monroe County prevails
•
Monroe County v. Post Buckley
Fees & Costs to Prevailing Party:
Amt Requested Lower Limit
Taxable Costs: $ 33,580.51 $ 25,000.00
Attorneys' Fees $ 531,909.50 $ 275,000.00
Total Fees and Costs $ 565,490.01 $ 300,000.00
Cost to Appeal:
Upper Limit Lower Limit
Transcript $ 20,000.00 $ 16,000.00
Expert re: Fees $ 20,000.00 $ 10,000.00
3rd DCA $ 65,000.00 $ 45,000.00
Supreme Court $ 35,000.00 $ 25,000.00
Total Cost of Appeal* $ 140,000.00 $ 96,000.00
*Recoverable if Monroe County prevails
Monroe County v. Post Buckley
Fees & Costs to Prevailing Party:
Amt Requested Lower Limit
Taxable Costs: $ 33,580.51 $ 25,000.00
Attorneys' Fees $ 531,909.50 $ 275,000.00
Total Fees and Costs $ 565,490.01 $ 300,000.00
Cost to Appeal:
Upper Limit Lower Limit
Transcript 0 $ 20,000.00 $. 16,000.00
Expert re: Fees $ 20,000.00 $ 10,000.00
3rd DCA $ 65,000.00 $ 45,000.00
Supreme Court $ 35,000.00 $ 25,000.00
Total Cost of Appeal* $ 140,000.00 $ 96,000.00
*Recoverable if Monroe County prevails
A t
Monroe County v. Post Buckley
Fees & Costs to Prevailing Party:
Amt Requested Lower Limit
Taxable Costs: $ 33,580.51 $ 25,000.00
Attorneys' Fees $ 531,909.50 $ 275,000.00
Total Fees and Costs $ 565,490.01 $ 300,000.00
Cost to Appeal:
Upper Limit Lower Limit
Transcript $ 20,000.00 $ 16,000.00
Expert re: Fees $ 20,000.00 $ 10,000.00
3rd DCA $ 65,000.00 $ 45,000.00
Supreme Court $ 35,000.00 $ 25,000.00
Total Cost of Appeal* $ 140,000.00 $ 96,000.00
*Recoverable if Monroe County prevails