Flagler County Circuit Judge Terence Perkins this afternoon denied Flagler County government’s motion to dismiss Captain’s BBQ’s breach-of-contract lawsuit against the county on both grounds the county submitted. So the case goes on, with a tantalizing caveat for the county.
While all but ridiculing one of the two arguments the county presented–that the county had broken the law by approving a lease amendment with Captain’s without putting it out to bid–Perkins was more receptive to the county’s second argument, that a 2018 lease amendment had never been breached since the amendment’s provisions have never gone into effect. On that ground, Perkins signaled that he may well dismiss the case down the line–but not before Captain’s lawyer had a chance to depose witnesses.
“With discovery being requested and this being a summary judgment, I think it would be error for me to grant a motion for summary judgment to the county at this stage,” Perkins said. The judge did not address deposition issues raised by Captain’s lawyer: the unusual request that County Attorney Al Hadeed and County Administrator Jerry Cameron submit to questioning under oath. He asked the lawyers to bring that matter to a future hearing. The more salient issue today was whether the case would go forward. “I don’t think I can enter a ruling without any discovery of any kind taking place on that issue. I think it would be reversible,” Perkins said.
Captain’s sued Flagler County government, charging breach of contract, after the county in December 2018 reversed its November vote granting Captain’s a third lease amendment, allowing it to build a much bigger building at its own expense at Bing’s Landing, the county park, expanding its seating and its footprint at the historic park. County commissioners faced bitter opposition to their November vote. They did not explicitly call their reversal a rescinding of the lease amendment, just a side-tracking. But every county action since has been under the pretense that the 2018 lease amendment, negotiated under a different county administrator, is null and void.
The county then filed its motion to dismissed, based on two arguments. First, that commissioners and the administration had illegally approved the lease amendment since they’d never put it out to bid. Second, that the lease amendment was never enacted, so Captain’s couldn’t very well argue that the county was in breach. According to the 2018 lease amendment, the county had agreed to let Captain’s build the new structure at its own expense (Captain’s claims it would cost $1 million). Captain’s would then have use of the building for three decades, beyond which full ownership would revert to the county. But no permits were issued, no site plans, no ground-breaking.
“We cannot let an illegal act which results in a void and unenforcable contract, stand,” Dale Scott, the attorney the county hired for the case, argued before the judge (on Zoom) this afternoon.
“It’s your illegal act,” Perkins said. “It’s not theirs. You can’t say that they did something wrong. They did everything you asked them to do. It’s your illegal act. And why do you get to say, it’s our illegal act, but it lets us off the contract. That’s what bothers me.”
Whether he was being obsequious toward the judge–as he was on several occasions–or whether he genuinely believed it, Scott conceded that the argument was a difficult one to make. “I would ask the same questions if I was in your shoes, I would have the same concerns,” Scott said, though he still attempted to push his argument, saying Captain’s hadn’t shown anything in law that contradicted his point. Still, he conceded, “this is one of those somewhat awkward positions that us as attorneys that we’re put in in arguing what may be somewhat of an unpalatable argument, which I’m intentionally avoiding the palace intrigue, because it’s irrelevant here.” It’s not clear what intrigue he was referring to, though he may have been referring to the tumultuous period surrounding the debate over Captain’s, murky as it was in the decomposing tenure of the previous administrator.
Despite the county’s “articulate arguments in that regards, I’m not persuaded by that,” Perkins said. “I’m not sure you get to say that our error excuses us from our contract obligations. If that were the case, then I guess the burden would be on, in this case, the plaintiffs to make sure that the county did what the county is required by their own proceedings to do. I don’t know, that just bothers me in that regard.”
Scott knew he was on stronger ground as he argued his second point, saying the current lase–amended twice before 2018–remains in effect until the new building is built. Since it’s not, Captain’s claim of breach of contract is “unripe,” or premature. “The affirmative obligations by the county kick in after the building is complete, that is the upgraded septic system, the additional parkin, landscaping and things of that nature. There are no obligations or standing obligations like waiver permitting or that the county would take some part in the building of this building. There is none of that whatsoever. This was fully to be a project by [Captain’s], it was plaintiff Captain’s BBQ’s job to get the permits, to do the contracting, and I would add there was no guarantee they would get any–get all the permits that are needed. There are a number of state, federal, local, county, what have you. That was all the duty in the contract of Captain’s, and it wasn’t of the county. So where we sit here today, none of the obligations which would exist under the new lease, the restated lease, that time hasn’t yet come to pass.”
Gregory Snell, Captain’s attorney, himself dismissed the county’s claim that the lease amendment had to be bid out, though he did so at greater length than necessary, since the judge had already signaled he was on his side. But he seemed less commanding in his rejection of the second argument, so that his counter-argument, rather than providing evidence or case law, amounted to a tautology: it’s a breach of contract because it’s a breach of contract.
“We’ve alleged breach of contract,” he said. “Whether it’s an anticipatory breach or some other form of breach, it’s still a breach of contract.” He seemed to have trouble finding his footing, falling back on the appearances of the commission’s debates rather than refuting Scott’s points: “They’d made it abundantly clear they have no intention of going forward with the agreement. That’s an anticipatory breach, so there’s evidence there of an anticipatory breach,” Snell said, stretching the tautology before jumping on the unrelated point that would end up saving him: that he was still seeking to depose witnesses, among them Hadeed and Cameron.
“They have openly stated: we dont like the deal, we don’t want to go forward with the deal, we’re not going to go forward with the deal. That’s an anticipatory breach,” Snell said. “If I have the opportunity to speak with Mr. Hadeed and Mr. Cameron, we’re going to get into a lot more detail on that, and there are other witnesses as well. We haven’t taken any depositions in this case yet.”
Perkins noted that even in the documented record, Captain’s hadn’t filed anything repudiating the county’s argument. His words were almost explicitly a legal roadmap for the county’s next set of arguments.
“The more difficult question, and frankly I think probably the easier issue for the county in this regard is, there are two contracts. There’s the 2011 and the 2019,” Perkins said, mistaking the second date: it’s 2018. “One follows the other, but there is a bright-line distinction as to when one starts and begins and the obligations accrue, and when we’re under the 2011. And I think that the contract very specifically says when we start in the  contract. The allegations in the complaint appear to address the repudiation of the  obligations, not the 2011 obligations. There’s some intermingling, if you will.”
So he’s leaving it to the two sides to buttress their arguments by showing either that nothing has happened to trigger the 2018 amendment or–if Captain’s takes that route, to show that there’s been some attempts to get the 2018 amendment enacted. But that would require Captain’s to actually start pulling permits and attempt to build a structure there, if only to get documentation of the county’s refusal. Anticipating that move, Scott today placed on the record the county’s discretion in those matters: it’s in its purview to deny permits based on criteria that have nothing to do with the amendment, and everything to do with federal or state regulations. In that regard, the county could pull Bing’s status as a historic park–a status Hammock residents pointed to again and again when their opposition to Captain’s plans were originally rebuffed by the county.
The county’s current position is that Captain’s 2011 lease is still in effect and will be in effect until 2026, sparing Captain’s of any detriment to its bottom line other than an anticipatory detriment.
And there was the matter of pending depositions. “I guess in that regard I’m denying it on both grounds but with the understanding that it’s not with prejudice, that both these issues may come back as we move forward,” Perkins said.