Captain’s BBQ and its landlord, Flagler County government, have reached a “tentative settlement” in Captain’s breach-of-contract lawsuit against the county, now entering its fifth year. The settlement was reached at an Oct. 27 mediation. But it’s not over.
The settlement is “subject to preparation and finalization of settlement documents, and consideration and approval of the settlement by the” County Commission, the notice of settlement, filed with the court at nearly 11 p.m. Monday, states. The notice is also a stay, stopping the clock in the court proceedings.
The two sides have been in litigation since June 2019, when Captain’s filed the breach-of-contract lawsuit. The restaurant alleged that the county had reneged on a lease amendment the County Commission had approved in a 3-2 vote, only for the commission to later set the decision aside, but not officially rescind it. Captain’s and the county had previously agreed to let Captain’s build a much larger, 5,000 square foot restaurant in the center of Bings Landing, the county park, at its own expense. The county administration had itself argued that the existing building was no longer safe. Public opposition was fierce and stopped the plans. Captain’s sued. The building has remained in place, so has the business, neither of them collapsing.
The County Commission’s attorneys have scheduled a closed-door session with the commission at 1 p.m. Monday to discuss, but not approve, the latest settlement. Should commissioners decide to approve it, they will do so in open session, and the terms of the settlement will be made public.
“The parties wish to continue with settlement finalization efforts, without incurring the continued expense and time expenditure associated with active litigation,” the motion to stay states. The county had spent $153,153 on the Captain’s BBQ litigation as of early July. The bill has grown since.
The attorneys and the parties involved in mediation are not permitted to discuss, and in fact are prohibited by court rule, to discuss what happened at the mediation. That explains why Mike Goodman, the co-owner of Captain’s BBQ, said he had no comment today when contacted, as did County Attorney Al Hadeed, who stressed the prohibition on breaking the mediation room’s seal.
The statements and discussions in mediation are also privileged in the sense that, should the settlement ultimately fail, nothing said in mediation is admissible in court, at trial.
The county and Captain’s BBQ have been here before. There was a proposed settlement in July 2020. The County Commission unanimously rejected it, finding it much too generous to Captain’s–and even more so than the 2018 lease amendment that fueled the controversy over the restaurant and the eventual lawsuit. (See: “County Decisively Rejects Settlement With Captain’s BBQ, Refusing Special Favors and Low Rent.”)
Trial–what would be a complex civil trial lasting weeks and costing tens of thousands of dollars–was set for early next year.
Circuit Judge Chris France ordered mediation on June 29. County Administrator Heidi Petito and Hadeed attended on the county’s behalf, with Petito leading the negotiations for the county. Captain’s filed an objection before mediation, arguing that the county’s negotiators are required by France’s order to have “absolute authority to enter into a full and complete compromise and settlement.” But Petito has no such authority, since the agreement must ultimately be approved by the commission.
Still, Captain’s motion suggests that Petito may have had more authority than in previous settlement negotiations. France’s order was also perhaps a reflection of the judge’s impatience with the two sides as he was pushing them toward a settlement.