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.
Bill C says
I think the solution is for citizens to vow never again to patronize that restaurant.
Absolutely NOT! I have been a loyal customer of Captain’s BBQ for years, and vow to continue to patronize that very fine restaurant that has some of the best BBQ in the entire USA – just take a peek at the restaurant’s TripAdvisor ranking if you don’t believe me.
Jason B says
Best in the USA? You must not get out much .. it’s average at best, and that sad, tiny, muffin-like cornbread is terrible. the only thing the place has going for it is the view, and that doesn’t belong to them.
I get out a lot, and I have frequented bbq restaurants all over this country. Yes, Captain’s BBQ definitely IS that good! If you don’t think so, fine, don’t go there. But I guarantee you this – those who don’t eat there are certainly in the minority and we who love it won’t be taking any advice to stop eating at Captain’s anytime soon. I just wish they had expanded to a larger, newer building there in the park, so MORE bbq lovers could eat there while enjoying the water view.
Lorene Schober says
You know, since Captains has been there, they have made a lot of money. They have paid very little to have the restaurant in a public park. If they want a larger restraunt there are plenty properties in Flafler County they could move to.
It is bad enough that Captain’s wants to destroy our beautiful park, paid for with taxpayer dollars, but now they want to sue for damages because the County won’t let them do it. We are the taxpayers and, therefore, we are really the ones that will be paying for any damages if Captain’s somehow wins. Why should we be patronizing Captain’s? They already have a sweetheart lease on the current restaurant building – that should be enough.
Flagler taxpayers should be boycotting this restaurant until they withdraw their litigation.
What a bunch of BS. Your ridiculous comment that the restaurant “wants to destroy our beautiful park” is complete nonsense! The plain and simple fact is that Captain’s BBQ is one of the primary reasons why anyone even goes to Bing’s Landing in the first place, because there really is almost nothing else there except some scattered benches under the trees and a boat ramp to the waterway. After living here in Palm Coast for more than a decade, I’ve been to Bing’s Landing many, many times and if that restaurant were not there, the number of times I would have gone to that park probably would have been 1 and done! So get over your rubish about what a fine park it would be without Captains… it would be nothing more than a marginally okay place to occasionally go to look at the water, period.
Really Skipbum? If Captains is the only reason you come to the Hammock, you have missed the point of why we want to preserve it! Our “marginal park” is awesome! Our dirt roads are fantastic! Our trees are breathtaking! That is why we live in the Hammock and wish to preserve what we have. If Captains is so great, he could survive on the other side of the bridge and make ALOT of people happy!
Bings landing is a public boat ramp on historic county property. Capt bbq occupies the bait shop. If they let him take over county park property Im going to put a taco bell in varn park and a burger king in malacompra park and have the county pay for it. If capt can do it so can I.
I hope they do get a jury trial, they will be tossed from this county in a heart beat, we do not want you here Captians! No one in this County supports these creeps and their creepy staff.
Speak for yourself, Mark. Do not attempt to speak for me or the MANY other locals to frequent Captain’s BBQ regularly. Yes we DO want Captain’s BBQ here!
I hope its an error in the story that the county was sued for $39,000, but settled for $45,000. I mean…..
It was not an error. See the stated medical expenses sought by the plaintiff on page 3 of this May 2019 pre-trial statement filed jointly by both parties.
Hammock Resident says
We, the taxpayers, should pay for everything, right or wrong, according to Captain’s lawyers. Not only do they have the sweetest deal ever heard of, and they were not happy enough with, they should get more, more, more from us, on technicalities in court. You and I will pay. In my opinion, they are the greediest, nastiest people around, and I am sorry they are in our Hammock. But, I have learned that karma truly exists, and we do not know what others will experience. We will continue to boycott the place while snowbirds, who do not know of the struggle, or care, will continue to patronize. Hopefully, we will not have to pay for too much longer, and other, more ethical businesses will thrive.
The county staff, represent you and the rest of us taxpayers. This “sweet deal” you reference was made by the county on behalf of all of the taxpayers. If you are upset by it, DON’T blame the restaurant, that’s foolish. If you want to put the blame where it belongs, it was the COUNTY who approved it, on YOUR behalf. Then the COUNTY turned about face after signing the latest lease and went in the opposite direction, virtually guaranteeing a lawsuit and taxpayers’ dollars for their stupid decision and “mistake” they are now claiming. Wow, what sound, high-priced legal advice they received that has wasted a huge amount of tax dollars… oh yeah, I forgot we are in Flori-DUH. Now it all makes sense. Bottom line, put the blame where the blame lies. If I were the owners of Captain’s BBQ, I would have sued the county too. Just saying.
Captains didnt have to take the sweetheart deal, they could have said “that price is too low and we will gladly pay more for such a prime location”. So in the end it was their own greed that got them in this mess.
Well you obviously are not an owner of any business. Please give an example of even one business who has told Flagler Co. that the county is charging them too little, and to please raise the amount of money you want us to pay you. That kind of nonsensical comment is laughable. The same would be true if you, as a taxpayer, called up the IRS and pleaded with them to raise your taxes because you want to owe more taxes than the IRS says you need to pay. It was always the county’s job to tell any prospective business how much they had to pay to use the building owned by the county, and if there was any amount lower than what should have been charged, the mistake was the county’s fault. I cannot fathom that any court in the land would hold the restaurant owners responsible for the obvious errors the county made, and has continued to make, even in the wake of the litigation and upcoming court trial. The lawyers who advised the county and made the bonehead decisions they did should be sued for malpractice if it was their advice that caused this lawsuit the taxpayers are paying for.
When this litigation is over either throw them out for breaking the terms of the lease(yes I’ve read it..the county has cause to throw them out) or simply wait for the lease to end and don’t renew. Aside from the fact no complete archaeological survey has been done to the park to locate the many structures that were once on the property.
So many people on here talk about ” boycott”. That’s laughable really. What 15 -20 posters on here is not going to hurt their business, at all. I live close and I see the amount of cars in the parking area and its not bike riders using the trails after 5pm. So many out of state cars and a yes locals partake. This whole county screw up belongs on the head of COFFEY. Darn shame he can’t be made accountable, even after he was kicked out of this county. The county is at fault for being stupid enough to go into a deal like they did. Why not give that same deal to the Funky Pelican. Its time for this mess to be settled in a court of law and let the stupidity of our county come full circle and bite them in the ass. along with a new realistic lease for Captains.. Bring the building up to code, make it safe, start adding some fries as a side and get used to a new lease.
Ben Hogarth says
If I had to make a prediction for this one, it would be along the lines of what I stated months and months ago. The County was 100% in the wrong when they executed this “sweetheart” deal – especially when they renewed it with more egregious terms. I do not blame Captain’s BBQ for this part and do not suspect a court would find Captain’s owners liable for a Flagler County (administrative and legislative) failure. It was entirely incumbent upon the county officers, whether elected or hired, to do their due diligence and draft terms that were actually legal. The attorney’s only have so much say in this process – they approve “as to form” and do not necessarily have policy making influence.
With that said, I also do not see how a court could award Captain’s BBQ with anything beyond a restitution for County breach of contract. I’m not familiar with the limit and scope of this kind of case, so it would be interesting to see if the judge has jurisdiction to levy an opinion on the legality of the contract as a whole. If they do have such jurisdiction, I hope they render that opinion. The only outcome worse than what we have seen with this litigation, would be for a court to leave a void in judicial interpretation.
Jane Gentile-Youd says
Simply summarized Al Hadeed could have and should have stopped the commission from their insane, illegal vote to allow ANY private business to build on county land for private use. Instead he sat there and said not a word – HE alone has cost us over $112,573 of our hard earned tax dollars paid to date ( and we are not done yet)to Bell and Roper law firm to ‘defend’ the county – to date. ( That does not count the $45,000 the county paid to the man who slipped on county owned property)
Hadeed’s legal buddy law firm has been paid over $206,000 to date which includes the other outrageous litigation on the Sheriff /Hospital fiasco.
As ‘Homer’ says : If everyone boycotts Captains maybe they won’t have enough to keep paying their own lawyers!
The entire waste of taxpayer’s money spent in the Captains fiasco ( not to mention Sheriff bldg, Sears, P Bay water purchase) is the fault of our inept, stupid, incompetent , overpaid attorney ( my opinion) who should be forced to pay every damn dime back to us taxpayers. His total ineptness has cost us untold $millions to date ( my opinion based on numbers) . And he sure is helping his legal buddies at Bell and Roper get rich!
Mr. Goodman is involved with a lawsuit AGAINST the county. Owns ALOT of property in the Hammock area. (ALOT). He is on the Planning Board of Flagler County. How can he honestly make unbiased decisions with the best interest of the county at stake. Maybe it would be a good time for Mr. Goodman to step down from the Planning Board and just keep track of his interests. Conflicts may be an issue here.