At the end of the latest hearing this afternoon in Captain’s BBQ breach-of-contract lawsuit against Flagler County, its landlord at Bings Landing, Circuit Judge Terence Perkins asked the two sides if they were ready to set a trial date. No, came the answer, pending depositions yet to be taken.
“Once you are, just notice it, we’ll put you on trial docket,” Perkins told the attorneys. So a case now approaching the two-year mark that flirted a few times with a settlement appears still headed for trial, with none of the essential conflicts resolved: Captain’s is arguing that the county illegally reneged on its contractual obligation to let Captain’s build a new, larger restaurant in the center of Bing’s Landing.
Details have been slowly emerging through court papers and arguments at hearings about the character of what has evolved into a bitter conflict between the restaurant owners and county officials–how the county switched from facilitating a new lease and a new restaurant building to opposing both; how the county switched from claiming the existing building was irreparable to suddenly finding it salvageable; and how county officials allegedly asserted to the restaurant’s owners that they would never issue a permit to allow Captain’s to build the new structure.
The county meanwhile argues against Captain’s lawsuit that if there were to be a new restaurant, that restaurant alone would have been covered by the new or amended lease agreement with the county–the lease currently in dispute. While the county and Captain’s had drafted and signed that lease–before the county subsequently set it aside–the lease never went into effect. So there couldn’t have been a breach of contract, the county argues.
Perkins was very skeptical of that argument at a hearing last fall, but he’s denied motions to dismiss the case so far, which gives the advantage to Captain’s: mounting legal bills aside, the restaurant owners want a jury trial, and they appear headed for one.
Today each side won a measured victory. Perkins opened the door to having County Attorney Al Hadeed and County Administrator Jerry Cameron deposed by Captain’s attorneys, a move the county has strenuously resisted. But he also denied Captain’s motion to dismiss a separate claim by the county for a $136,000 reimbursement related to an unrelated lawsuit the county settled with a customer who fell and hurt himself outside of Captain’s in 2016. If there is to be a settlement before trial, that claim now may be playing the role of a big bargaining chip, with the county holding it up like a cudgel the way Captain’s is holding up its breach-of-contract claim.
Perkins today denied Captain’s motion to compel Hadeed and Cameron to submit to depositions, but it was a conditional denial. “Go ahead and get your other discovery done,” the judge told the attorneys, “let’s figure out what involvement, if any, they have, from all the different sources.” If Captain’s attorneys can get at the information they’re seeking from different sources, then the depositions will not be allowed. But “if Mr. Hadeed was involved in a direct communication with your client and there’s no one else there but them, sounds to me like this deposition gets taken in this case. Now, you don’t get to ask them about litigation strategy. You don’t get to ask them about attorney-client privilege. But you would probably get to ask them about those discussions, any promises or representations made, things along those lines.”
Greg Snell, the attorney representing Captain’s, said he had no interest in delving into privileged matters or strategy. “What we want to talk about are the facts known by these two individuals, of which there are many, and that’s it. We just want to take the depositions as fact witnesses. Mr. Scott can protect his clients if necessary.” Dale Scott represents the county. “But there’s no reason not to depose these individuals,” Snell continued, cleverly citing a case in which Perkins was involved as an attorney before he became a judge, and in which a judge granted the right to depose corporate executives involved in the case. Snell compared Cameron and Hadeed to those executives. “These are witnesses who are not some distant, remote people who have no knowledge, really, direct knowledge about any of this. These are people who were, if not the most involved, they were certainly amongst the most involved, dealing with my client throughout all those issues that are material to the case.”Captain’s co-owner Mike Goodman (who currently serves on the county’s planning board), in an affidavit opened a window into the sort of information the lawyers would seek to draw from Hadeed. Goodman said he had discussions with Hadeed and Cameron, along with ex-County Administrator Craig Coffey, and others, regarding the conditions of the existing restaurant building. “During one discussion with Mr. Hadeed,” Goodman said in his affidavit, “he stated unequivocally that Captain’s BBQ would not be issued a permit to proceed with construction of the new building subject of the Amended/Restated Lease.” Goodman said he also had discussions with Cameron “regarding the condition of the building during which, in part, he expressed the opinion that the building could not be salvaged.”
Those statements had also been made by county officials at county commission meetings or workshops, until there was a lo-and-behold moment when in June 2019, soon before Captain’s sued, the county declared the building sound after all, and repairable, for a mere $60,000.
It was after those discussions with Cameron and Hadeed that Goodman determined that “the county had no intention of performing under the Amended/Restated Lease and would thwart any attempt we made to proceed with construction of the new building and otherwise to perform under the Amended/Restated Lease.” But Hadeed and Cameron weren’t acting in a vacuum.
Goodman’s perspective as a business owner–or a party to a lawsuit–of course doesn’t take account of the political climate that had compelled commissioners to switch course in 2019 and direct Hadeed and Cameron to act as they did. The attorney and the administrator, in other words, had no choice: they had their directives, which commissioners had reached in open meetings–unlike previous arrangements Coffey had worked out on the way to drafting the amended lease, which placed commissioners in late 2018 before what was all but a done deal (all but for their votes). Put another way, the county was picking up the pieces of hurried actions they had not vetted properly before their initial vote approving the amended lease. It was not the last time the commission’s blundering actions would cost it dearly. (Commissioners Greg Hansen, Nate McLaughlin–no longer on the commission–and Dave Sullivan had voted to approve the lease; Donald O’Brien and Charlie Ericksen had voted against.)
It isn’t likely that Hadeed and Cameron will say anything particularly revealing in their depositions beyond those parameters, though the very sudden transfiguration of the restaurant from an irreparable wreck into a salvageable property, at little cost, is certain to play a role in the Cameron deposition (or that of Heidi Petito, the person most closely involved with the building throughout: she was the county’s facilities director at the time. She is now a deputy administrator, in line for the top job when Cameron leaves later this year. He informed commissioners last week that he would be leaving around June.)Scott, the county’s attorney, argued that Captain’s had not exhausted anywhere near its other means of getting the information it is seeking without deposing Hadeed and Cameron. “The issue here isn’t whether Mr. Hadeed or Mr. Cameron has some form of knowledge that may relate to it, the question is whether [Captain’s] have made the proper showing to, over the objection of the governmental entity here–the county–to justify the taking of those depositions,” Scott said. He cited doctrine recognized by various courts that recognizes that public officials shouldn’t be “overburdened” by such things as depositions, “particularly and specifically where other discovery tools are available.”
Coffey, the person on the county’s side most involved in the negotiations with Captain’s is no longer there. He’s now the deputy county administrator in Okaloosa County. An ardent and skillful if often politically tone-deaf dealmaker–the deal often mattered more than the details–Coffey was the Flagler County administrator who negotiated the proposed lease. He did so largely behind the scenes, before bringing what was to be the finished product before the county commission in late 2018. Commissioners in a 3-2 vote that reflected the divisiveness of the issue approved the lease, and weeks later, after significant public protest, the commission in a 4-0 vote opted to “sidetrack” the lease.
The lease was never explicitly rescinded, Captain’s attorneys would later argue, and in fact the word “rescind” or anything like it doesn’t appear in the record of that meeting. But commissioners had realized they’d made what appeared to them to be a political blunder, and their subsequent actions reflected a rescinding in fact if not in word.
The setting aside of the lease was characterized as a temporary move. Commissioner Dave Sullivan, who made that motion, described it as having the matter “sidetracked for a while” so commissioners could have better information going forward. In the interim, Coffey submitted six different options but was then forced to resign. A compromise appeared possible, but when the county decisively moved away from allowing the new restaurant to be built in the center of the park, talks broke down, and in June 2019, Captain’s sued.
The other matter before Perkins today involved that separate lawsuit a Captain’s customer filed against the restaurant and the county in 2017. The customer claimed he’d fallen on a wooden step outside the restaurant in August 2016, “where mildew, grime and water accumulated,” according to court papers, and sued for $39,000 in medical expenses.
The county and the customer reached a settlement in June 2019, with the county agreeing to pay him $45,000. The county’s insurer had retained legal counsel in the suit, Bell & Roper. That bill came to $91,000. The lease in effect then (an d still in effect now) calls for Captain’s to “indemnify and hold harmless” the county against all liabilities, claims and so on, including legal bills arising out of business involving employees or customers at Captain’s. (See the lease terms here.
So the county then sought indemnification payment of $136,000 from Captain’s. (The claim is not directly related to Captain’s breach-of-contract lawsuit, of course, but in cases where two parties are in court on different matters, the court as a matter of efficiency consolidates what cases it can so they can be argued simultaneously.)
Captain’s declined to pay, arguing that the fall took place outside the restaurant itself, and on county property. Specifically, Captain’s argues, the customer in his original lawsuit “alleged that Flagler County negligently constructed its outside wooden steps on the north side of the building by not putting any non-clip tread on the steps and configuring the steps so that mildew, grime and water would accumulate on the steps.” Captain’s itself was not at fault, the restaurant claims. Just as the county is responsible for maintaining the trees and grounds at Bing’s Landing, the business argues, it was responsible for the steps.
Captain’s filed a motion to dismiss that counter-claim by the county. Today, Perkins denied the motion, so the county’s claim for reimbursement in that side case continues as well. That doesn’t mean the county won its claim–only that that sideshow to the larger lawsuit carries on, at least keeping the county’s bargaining chip at full value for now.
A date for another hearing has not been set.