Agenda 09/08/2015 Item #16K 9Board of County Commissioners Meeting
September 8, 2015
Page 2
Move Item 16K9 to Item 12A: Recommendation to
authorize the County Attorney to advertise an ordinance for
future consideration which would amend Ordinance No.
1975 -16, as amended, by revising the reconsideration of
matters by the Board of County Commissioners.
(Commissioner Henning's request)
Time Certain Requests:
Item 14B1 to be heard at 11:00 a.m. (Commissioner Fiala's request)
Note:
Item 16F1 (Aueust 11, 2015 BCC In Absentia A¢enda): Based on HUD's preliminary review of Collier
County's FY2015 - FY2016 Action Plan, there are two changes that need to be made to the action plan:
The following comment from the Proposed Outcome listed on project sheet CDBG15 -9 should be removed:
21A GeneFal u,,,,,,,,,,,,, Administration ern 206
Additionally, on page 66 under "Use of Funds Section 2. Overall Benefit" the applicable program years
should read: N4A 2015, 2016, 2017;
Both require the Chairman's initials.
9/8/2015 8:41 AM
9/8/2015 16.K.9.
EXECUTIVE SUMMARY
Recommendation to authorize the County Attorney to advertise an ordinance for future
consideration which would amend Ordinance No. 1975 -16, as amended, by revising the
reconsideration of matters by the Board of County Commissioners.
OBJECTIVE: To modify the reconsideration procedure in light of recent litigation as follows:
Sec. 2 -41. - Reconsideration of matters generally.
(a) Any matter which has been voted upon by the Board of County Commissioners may be
reconsidered as follows:
(1) By a motion to reconsider made by a member who voted with the majority if such
motion is made prior to the adjournment of the meeting at which the matter was
voted upon. If there were no public speakers on the item, or if all of the public
speakers for the item are still present in the boardroom following a successful
motion to reconsider, the Board may elect to rehear the matter during that meeting,
or direct the County Manager to place the item on the agenda for a future meeting
not later than the second regular Commission meeting following the meeting at
_which the motion for reconsideration was adopted. as set f fth in subseetion KQ; If
there were public speakers for the item, and not all of the public speakers are still
present in the boardroom following a successful motion to reconsider, the County
Manager will place the item on the agenda not later than the second regular
Commission meeting followin=g the meeting at which the motion for
reconsideration was adopted.fief a futwe meeting asap ofth in subsectien (2).
,, membe
g fslleWif
a. Whefe a member whe voted with the majefity wishes the Board to r-eeensider--a
mat4er- after- the adjoufament of the meeting, at whieh it was veted on, the membe
shall delivef te the County Manager- a wfit4en memefandum stating that the
b
metien, afld shall J a
meeting. The of this r-equir-ement is + l l w the + g r advise +1, Beard of
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(2)d- All parties who participated by speaking, submitting registration forms or written
materials at the first hearing, shall be notified by the County Manager of the date of
reconsideration.
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9/8/2015 16.K.9.
(b) This section shall apply to any matters which may lawfully be reconsidered except those
matters which are covered by Paragraph 7 below. (Note: Paragraph 7 concerns the
reconsideration process for Land Use items)
CONSIDERATIONS: The recent litigation involving Mr. Curry hinged on whether the Courts
would enforce the Board's Reconsideration Ordinance, which procedure is unique to Collier
County in terms of the time in which a reconsideration motion may be made. In most
jurisdictions, a reconsideration motion must be made during the same meeting in which the
original motion was heard. In ruling for Mr. Curry, the Trial Court would not enforce this
ordinance, and on appeal, the Second District Court of Appeal also would not give effect to the
Ordinance. This proposed amendment limits the use of reconsideration on non land use matters
to the meeting at which the item was heard. Based on the Board's prior use of the procedure, the
proposed amendment primarily impacts its ability to reconsider contracts. The amendment does
not impact the Board's current reconsideration procedure for land use items.
As an alternative, the Board could amend the procedure by shortening the time for a
Commissioner to notify the County Manager of their desire to reconsider, and then placing a
clause in each agreement that the agreement is not effective until the passage of such time.
Executive Summaries for time - critical projects would then need to contain a waiver of the
reconsideration right as part of the recommendation. For example, instead of the current two
Board meeting time frame (which with the holiday season and the summer recess could be
extensive), the Board could provide for a two -day window to provide notice to the County
Manager, so that unless otherwise waived all agreements would go hard the Friday after a Board
meeting. Whether any administrative burden overweighs the desire of the Board to reconsider at
a later time is a policy decision.
FISCAL IMPACT: None.
GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated
with this Executive Summary.
LEGAL CONSIDERATIONS: The proposed amendment has been drafted by the County
Attorney and is legally sufficient for Board action. This item requires majority vote. — JAK
RECOMMENDATION: That the Board approves the proposed amendment to the Board's
Reconsideration Ordinance and authorizes the County Attorney to advertise this amendment and
return to the Board for approval.
Prepared by: Jeffrey A. Klatzkow, County Attorney
Attachments: Proposed Ordinance, Curry decisions
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.K.16.K.9.
Item Summary: Recommendation to authorize the County Attorney to advertise an
ordinance for future consideration which would amend Ordinance No. 1975 -16, as amended,
by revising the reconsideration of matters by the Board of County Commissioners
Meeting Date: 9/8/2015
Prepared By
Name: NeetVirginia
Title: Legal Assistant/Paralegal, CAO Office Administration
8/20/2015 2:51:41 PM
Submitted by
Title: County Attorney,
Name: KlatzkowJeff
8/20/2015 2:51:42 PM
Approved By
Name: KlatzkowJeff
Title: County Attorney,
Date: 8/24/2015 10:10:51 AM
Name: KlatzkowJeff
Title: County Attorney,
Date: 8/24/2015 11:06:16 AM
Name: IsacksonMark
Title: Division Director - Corp Fin & Mgmt Svc, Office of Management & Budget
Date: 8/24/2015 11:47:25 AM
Name: CasalanguidaNick
Title: Deputy County Manager, County Managers Office
Date: 8/24/2015 12:48:38 PM
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9/8/2015 16.K.9.
ORDINANCE NO. 2015-
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA, AMENDING SECTION ONE OF
ORDINANCE NO. 75 -16, AS AMENDED, "MEETINGS OF THE BOARD
OF COUNTY COMMISSIONERS," SPECIFICALLY PARAGRAPH 6,
"RECONSIDERATION OF MATTERS GENERALLY," AS IT RELATES
TO THE TIMEFRAME BETWEEN THE BOARD'S ACTION ON AN
AGENDA ITEM AND THE COMMISSIONER'S REQUEST FOR
RECONSIDERATION; PROVIDING FOR CONFLICT AND
SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE OF
LAWS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, on April 22, 1975, the Board of County Commissioners (Board) adopted
Ordinance No. 75 -16 which established the time, place and conduct of its meetings; and
WHEREAS, subsequent amendments to Ordinance No. 75 -16 reflect the evolving
practices and procedures relating to the meetings of the Board of County Commissioners; and
WHEREAS, the Board desires to further amend Ordinance No. 75 -16 as it relates to the
timeframe between the Board action on an agenda item and the Commissioner's request for
reconsideration.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that:
SECTION ONE: AMENDMENT TO SECTION ONE, PARAGRAPH 6, OF
ORDINANCE NO. 75 -16, AS AMENDED.
Section One, Paragraph 6, is hereby amended as follows:
6. Reconsideration of matters generally.
(a) Any matter which has been voted upon by the Board of County Commissioners
may be reconsidered as follows:
(l) By a motion to reconsider made by a member who voted with the majority if such
motion is made prior to the adjournment of the meeting at which the matter was voted upon. If
there were no public speakers on the item, or if all of the public speakers for the item are still
present in the boardroom following a successful motion to reconsider, the Board may elect to
rehear the matter during that meeting, or direct the County Manager to place the item on the
agenda for a future meeting not later than the second regular Commission meeting following the
meeting at which the motion for reconsideration was adopted. as set f �h in subseetion '?`. If
there were public speakers for the item, and not all of the public speakers are still present in the
Words Underlined are added; Words Stnask Thfaugh are deleted.
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boardroom following a successful motion to reconsider, the County Manager will place the item
on the agenda not later than the second regular Commission meeting following the meeting at
which the motion for reconsideration was adopted. for- ° f6t• r-e fneeting as set f fth in subseetieft n
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but ,....1., in aeeer-danee with the fell ..,,: .•
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(i) Whe a member- ..h .moted with the ajer -it, wishes the B fd te r-eeensidef
deliver- te the County Maliager- a wr-i4en memer-andum stating giat the member- intends
meeting at whieh the member- intends te intfeduee sueh fnetion, and shall be deliver-ed
the M °ger —>least days - bier-- te— sueh-- fneeting. --The pufpese of this
legal r-equir-ement is to allew the stagte advise the Bear-d of the
:d° „t:
(ii) Ne fnetien to ° shall ur c.
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on an agenda net lutefthan the ° nd °,. ,1. C t; _ 4e ab n thee
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All parties who participated by speaking, submitting registration forms or
written materials at the first hearing, shall be notified by the County Manager of the date of
reconsideration.
(b) This section shall apply to any matters which may lawfully be reconsidered
except those matters which are covered by Paragraph 7 below.
SECTION TWO: CONFLICT AND SEVERABILITY.
In the event this Ordinance conflicts with any other ordinance of Collier County or other
applicable law, the more restrictive shall apply. If any phrase or portion of the Ordinance is held
invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and such holding shall not affect the validity of the
remaining portion.
SECTION THREE: INCLUSION IN THE CODE OF LAWS AND ORDINANCES.
The provisions of this Ordinance shall become and be made a part of the Code of Laws and
Ordinances of Collier County, Florida. The sections of the Ordinances may be renumbered or
relettered to accomplish such, and the word "ordinance" may be changed to "section," "article,"
or any other appropriate word.
Words Underlined are added; Words Stru,.'. T"..,.,.g1, are deleted.
D..,.,. 11 ,.F12
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SECTION FOUR: EFFECTIVE DATE.
This Ordinance shall be effective upon filing with the Department of State.
PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier
County, Florida, this day of , 2015.
ATTEST:
DWIGHT E. BROCK, CLERK
, Deputy Clerk
Approved as to form and legality:
Jeffrey A. Klatzkow
County Attorney
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
By:
TIM NANCE, CHAIRMAN
Words Underlined are added; Words S._..,.', Through are deleted.
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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA CIRCUIT CIVIL
THOMAS C. CURRY,
PlaintiM
VS.
COLLIER COUNTY, a political
subdivision of the State of Florida,
Defendant,
CASE NO. 14- 0087 -CA
Fled Ost kk " 3coot
THIS CAUSE having come before this Honorable Court upon Plaintifrs Motion for
Final Summary Judgment, and the Court having heard arguments of counsel, and being
otherwise fully advised in the premises, it is hereby
ORDERED and ADJUDGED that PlaintiWs Motion for Final Summary Judgment be,
and the same is hereby Granted.
DONE and ORDERED in Chambers at Collier County, Naples, Florida this 19 Day of
May, 2014.
le Frederick R
Circuit Judge
Copies provided electronically to:
Gregory N. Woods, Esquire at: wg oods cvlawfirninaples.com
Colleen Greene, Esquire at colleenegreeneracollier on •.net
Joseph D. Stewart at: istewartrjdsle al.com
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IN THE 20TH JUDICIAL CIRCUIT COURT
IN AND FOR COLLIER COUNTY, FLORIDA
CASE NO. 14- 0087 -CA
THOMAS C. CURRY,
Plaintiff(s),
V.
COLLIER COUNTY, a political
subdivision of the State
of Florida,
Defendant(s).
9/8/2015 16.K.9.
�4; t � M; � • �;/M9171� ��
DATE TAKEN: May 29, 2014
TIME: 9:00 a.m.
PLACE: Collier County Courthouse
Naples, Florida
BEFORE: HONORABLE FREDERICK R. HARDT
This cause came on to be heard at the time and
place aforesaid, when and where the following
proceedings were reported by:
ELIZABETH M. BROOKS, RPR, FPR
Gregory Court Reporting Services, Inc.
2650 Airport Road South
Naples, FL 34112
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FPFEARMCES
For the Plaintiff(s): JOSEPH D. STEWART, ESQ.
Joseph D. Stewart, P.A.
2671 Airport Road South
Naples, FL 34112
For the Defendant(s): GREGORY N. WOODS, ESQ.
Woods, Weidenmiller &
Michetti, P.L.
5150 Tamiami Trail
Suite 503
Naples, FL 34103
GREGORY COURT REPORTING SERVICE
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THE COURT: Good morning. Please be seated.
We have Curry versus Collier County Case 2014 -CA;
87.
And then, Court Reporter, do you have the
appearances? Okay.
What do you have? Plaintiff's Motion for
Summary Judgment and then we have a cross motion
for summary judgment. I've read all of your
papers.
Do you have a time line, Mr. Stewart, that you
can give the Court?
Mr. Woods, do you have a time line?
MR. WOODS: I don't have a time line, per se,
but we have laid out the dates, and it's in part of
our response.
THE COURT: Mr. Stewart, your motion?
MR. STEWART: Yes.
MR. WOODS: Actually, Your Honor, if I may
approach? The Court can kind of follow from there,
maybe a little bit more.
THE COURT: Do you want to see what this is?
MR. STEWART: That's the response. And I was
going to cover what I consider to be the critical
dates in my presentation.
THE COURT: That would be fine.
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MR. STEWART: May I proceed?
THE COURT: Yes.
MR. STEWART: May it please the Court,
Mr. Woods, Mr. Curry.
Judge, I represent Mr. Chris Curry, who was
formally the executive director of the Collier
County Airport Authority. And I'll begin my
argument by quoting Mark Twain. Mark Twain once
said: No man's life, liberty or property are safe
while the legislature is in session.
The same may be true of those folks who have
written contracts with Collier County when the
Collier County Commission is in session.
Mr. Curry entered into a written employment
agreement with Collier County on November 13th,
2012, although the contract effective date was
October 23rd, 2012. It was a three -year contract
that was to terminate on September 30th, 2015.
Now, under that contract Mr. Curry was
entitled to severance benefits.
THE COURT: Wasn't the first contract 2010?
MR. STEWART: There were several. I think
there were two contracts before that.
THE COURT: There was a three -year contract
that was effective September 30th of 2010, so that
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would take us to 2013.
MR. WOODS: Correct.
THE COURT: Is that right?
MR. STEWART: Yes, sir. It would have taken
us to September 30th, 2013.
THE COURT: And that contract was never --
that contract terminated?
MR. STEWART: It would have been terminated,
by my perspective, by the county entering into a
written employment agreement, the one that I'm
referring to now. It was referred to as an amended
and extended employment agreement. That's the
agreement that we're suing on.
THE COURT: What was the date of that
agreement?
MR. STEWART: It was -- as I said, it was
signed on November 13th, 2012.
THE COURT: So that was signed before the
first agreement had actually expired?
MR. STEWART: Correct. Yes, sir.
THE COURT: And that was for an extension.
MR. STEWART: It was an amended and extended
agreement. And, as I said, it was signed on
November 13th, and it has an effective date of
October 23rd, 2012.
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The previous contract would nave expired
September 30th, 2013. The new contract, the signed
contract that Mr. Curry had, extended that
agreement for an additional three years, and that
new contract, the one that we've sued on here,
would have expired September 30th, 2015.
THE COURT: Okay. So the amended or the
extension was actually entered into before the
first contract had expired.
MR. STEWART: Yes, sir. That's absolutely
correct.
THE COURT: I understand.
MR. STEWART: And there were other changes,
other than the term. They changed the term of the
severance benefits as well.
THE COURT: Because of the legislature.
MR. STEWART: Absolutely. Mr. Curry was
entitled to, as I said, severance benefits. That's
both his base pay plus the benefits received under
the contract.
Did you have a question?
THE COURT: No.
MR. STEWART: On severance benefits, if
Collier County terminated the written employment
agreement -- that's under Section 4.
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Now, on March 26, 2013, five months after the
effective date of the employment agreement, and
during the term of the new contract, the amended
and extended agreement that increased his pay
changed his severance benefits and an extended the
term --
THE COURT: Did the extension agreement go
into effect immediately?
MR. STEWART: Yes, sir.
THE COURT: It didn't take effect when the
first agreement expired?
MR. STEWART: No, sir.
THE COURT: So it went into effect on what
date?
MR. STEWART: The effective date of the
contract was October 23rd, 2012, the new, what I'm
referring to as the new contract.
THE COURT: That's the date, 2012?
MR. STEWART: Yes, sir.
THE COURT: All right.
MR. STEWART: As I said, on March 26, 2013,
five months after the effective date of the new
agreement and during the term of that agreement,
Collier County terminated the amended and extended
employment agreement and claimed they had the
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ability to replace it with Mr. Curry's old
agreement, which would expire by its own terms on
September 30th, 2013.
The specific resolution, it was a motion --
now, this is the resolution five months after the
county attorney has drawn up the new contract, it's
been approved by the Board, Mr. Curry has signed it
and all of the Board of County Commissioners have
signed it. Five months later Collier County passes
a resolution on a motion not to extend Mr. Curry's
contract, one that they had already signed five
months before.
THE COURT: That was March 31st?
MR. STEWART: March 26.
THE COURT: Thank you.
MR. STEWART: The County justified its actions
by claiming it has a do -over ordinance that allows
it to renig on written agreements five months after
the effective date. That's their position.
And if we were to take a look at this do -over
ordinance, which I have here, the first line
says -- they call it reconsideration. "Do- over" is
my name.
. It says: Any matter which has been voted upon
by the Board of County Commissioners may be
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reconsidered as follows. And so anything,
according to their own ordinance, they can back out
of.
THE COURT: That ordinance was in effect
during this entire time?
MR. STEWART: It was. It was absolutely in
effect, but it was not referenced in his employment
agreement.
The ordinance, if you were to read it, just
says that Collier County can reconsider its
actions. The ordinance does not say it has no
liability for reconsidering its actions.
The County's position in this lawsuit is that
the ordinance gives them the statutory or ordinance
immunity for the results of its reconsideration.
Collier County claims it is immune basically from
the law of written contracts and has the right to
undo its written promises.
Judge, while Collier County may have the right
to revisit legislative actions, it does not have
the right to exempt itself from basic contract law.
Collier County can breach a contract just like any
other party. People do it all the time, but it
cannot legislate immunity for that breach.
Giving Collier County the authority to ignore
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its written promises and its obligations through
this do -over ordinance is basically providing it
with a perpetual presidential pardon for any
contract it says it wants to enter into.
THE COURT: Are there rules as to how far out
they can renig?
MR. STEWART: I don't remember the specifics.
MR. WOODS: Within two meetings.
MR. STEWART: Within two meetings. We know
that this contract was effective October 23rd and
we know that the Board of County Commissioners did
it in March 2013, and so that's five months. We
know that's what happened here.
THE COURT: I assume they had more than two
meetings during that time.
MR. WOODS: That's not correct. And I'll
explain later. I disagree with Mr. Stewart on how
that happened, and I'll explain it.
MR. STEWART: Now what type of contracts could
the County avoid responsibility for? It says
anything that it has to pass a resolution for.
That's its position. But let's take an example of,
the County wants to hire a new HR person to run the
HR department. And they locate someone in Virginia
and they negotiate a contract with them and reach
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an agreement on the terms. And the County says,
All right, County Attorney, draft up the agreement.
The County drafts up the agreement, the county
attorney does, presents it to the perspective
employee. The perspective employee signs it, comes
back to the County, the County Board of County
Commissioners approves it and all five of them sign
it. This gentleman from Virginia sells his house,
packs up his belongings, packs up the kids and the
family dog and cat. All of them get in the car.
They come down here. They buy a house. And two
weeks into his job the County says, we've decided
to reconsider this. So said, too bad.
THE COURT: Well, that's Hoffman versus
Winn - Dixie. That's the promissory estoppel case.
Have you read that?
MR. STEWART: No. I have pled breach of
written agreement.
THE COURT: That's it?
MR. STEWART: That's it.
Quite frankly, I don't know whether you could
resort to promissory estoppel when you have a
written contract. I mean, as far as the legal
issue, I don't know what The answer to that is.
THE COURT: There would be additional damages
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that you are claiming with promissory estoppel; the
moving expenses, the loss of the job in Virginia,
all of those, all of those matters which would be a
disruption. So those would be damages, in addition
to what might be just recoverable under the
contract. Because that's the academic question at
this point.
MR. STEWART: And, Mr. Curry, of course still
has a house here. Mr. Curry was faithfully
performing his responsibilities under his contract.
Judge, if Collier County has the ability to
renig on its contract, then Collier County's word
is no good. And if Collier County's word is no
good, that's not the kind of government we should
be living under here in Collier County.
Mr. Curry seeks two types of damages in this
case. One is the contractual severance
compensation, contractual -- it's in the agreement.
We'll identify the specifics, the specific amounts
in a moment. And then second, breach of contract
damages, which we contend he would be entitled to
from the date of his termination, September 30th,
2013, until he was able to obtain substitute
employment.
THE COURT: That's subject to a mitigation
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defense?
MR. STEWART: Subject to a mitigation of
damages defense, which will not be argued today.
That's a severance issue. The Court can simply
look at the breach and look at the affidavit filed
by the human resources folks and the affidavit
filed by Mr. Curry to determine the specific
amount.
THE COURT: The County rescinded the extension
agreement about six months before the original
agreement terminated?
MR. STEWART: Yes, sir.
THE COURT: And then did he continue; did he
continue working through September 30th?
MR. STEWART: September 30th, 2013, yes, sir.
THE COURT: Did he work after that?
MR. STEWART: No, sir. They wouldn't pay him.
That's when he left, September 13, 2013, and
started seeking potential employment. There was
always the potential that the County would come
back to him and say, We really want you to stay.
Could he have left back in March 26? I guess he
could have, but he stayed.
THE COURT: The County didn't rescind the
original contract, they honored -- the County
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honored the original contract?
MR. STEWART: Yes, sir. But the original
contract was overtaken by the amended and
restated -- or excuse me, amended and extended
agreement.
THE COURT: Is that what it says?
MR. STEWART: It says Amended and Extended,
yes, sir. They amended the original agreement.
That's the way that they --
THE COURT: That was a novation.
MR. STEWART: A novation, yes, sir. Now,
there is no dispute as to the amount of the
contractual severance compensation Mr. Curry is
entitled to. As I said, the County's human
resources filed an affidavit stating that the
severance benefits would be $68,602. Mr. Curry
filed a supplemental affidavit stating they failed
to identify some additional benefits of $2,333.33.
That totals 70,935.33. I don't believe there is
any dispute as to the amount that we seek in this
case.
THE COURT: When did you file that affidavit?
MR. STEWART: I've got them with me. The
human resources lady from the county filed it and
Mr. Curry filed a supplemental affidavit with the
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additional $2,333.33.
THE COURT: That was just filed recently?
MR. WOODS: Our affidavit was filed on or
around April 28th, and I think the supplemental
affidavit was filed on or around --
THE COURT: I have my letter from Mr. Stewart
dated May 27.
MR. WOODS: That just included what had been
previously filed before.
THE COURT: Okay.
MR. STEWART: I don't believe, Mr. Woods --
THE COURT: There is no objection.
MR. WOODS: I'm not going to say it's not
timely or anything. I don't think the Court will
find damages. But if the Court were to find
damages, I would agree that the 2333 listed in the
affidavit would be the correct number.
THE COURT: Okay.
MR. STEWART: So what we request in this case
is a judgment in favor of Mr. Curry for the
70,935.33, plus prejudgment interest from
October 10th, 2013, because the money was due ten
days after his employment terminated, plus an award
of attorney's fees pursuant to Florida Statute
448.08, under the authorities that I've provided
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for the Court that stand for the proposition that
severance benefits are a form of compensation for
the purposes of an attorney fee award.
If Your Honor has any questions, I would be
happy to respond.
THE COURT: Not right now.
MR. STEWART: Thank you, Judge.
THE COURT: Mr. Woods? Mr. Woods, in
October 2012 there was an amended agreement and
extension, right?
MR. WOODS: That's not quite right, Your
Honor.
THE COURT: Not quite right?
MR. WOODS: October 23rd, 2012, there was a
meeting where the Board discussed extending
Mr. Curry's contract.
THE COURT: When was the contract signed by
the parties?
MR. WOODS: Let me now correct that.
At the November 9th meeting, 2012, is where
the Board of County Commissioners voted to
authorize Fred Coyle, as chair of the committee, to
execute the contract.
THE COURT: Okay. Now, was that -- when did
he execute the extension?
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MR. WOODS: He executed it some date around
November 9th or later. Probably the 10th or 11th.
THE COURT: And that agreement superseded the
agreement that was in effect?
MR. WOODS: That agreement incorporated the
terms of the original agreement, and then said, to
the extent we amend these terms, we amend these
terms.
THE COURT: So it wasn't just an extension
that took place as of September 1st -- sorry, as of
October 1st 2013, the extension and the amendment
took place immediately under that agreement.
MR. WOODS: Well, I'll say the agreement was
signed somewhere around November 10th or 11th,
2012. That's when it was executed. Okay?
THE COURT: Okay. By Mr. Coyle?
MR. WOODS: Right. But we are operating from
the November 9th meeting when the Board said, we
approve going forward with this contract.
So we then have an election. Actually, there
is -- there is -- we have an election, and then the
Board of County Commissioners changes. And let me
backtrack.
Mr. Curry really created his own problem.
THE COURT: Wait a minute. He's not being
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terminated for cause, is he, Mr. Woods?
MR. WOODS: No.
THE COURT: So why do we have to -- he created
his own problem how? By the election?
MR. WOODS: Let me explain, Your Honor.
Under the terms of the contract, if you are
going to renew, you are supposed to renew by
September 23rd, the year before. Okay? So this
one, the original contract, expired September 30th,
2013. So if the parties were going to renew it,
they are supposed to renew prior to September 30,
2012.
Mr. Curry had a draft contract, the terms they
were talking about, in August of 2013. There was
haggling back and forth. Anyway, he didn't present
it to the Board until October 20.
THE COURT: So then Fred Coyle shouldn't have
signed it.
MR. WOODS: Well --
THE COURT: He signed it.
MR. WOODS: Fred Coyle, the outgoing board
member, signed the agreement, yes.
If I may get back to it, the Board changes.
We have an ordinance. That ordinance is 75 -16, as
it's been amended a couple of times. I'll hand the
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Court the original ordinance and the amendments.
THE COURT: This is the ordinance that
Mr. Stewart says is the do -over ordinance?
MR. WOODS: Yes. I would like to make a
record. I would like to make the ordinances an
exhibit or ask the Court to take judicial notice of
it.
MR. STEWART: No objection.
THE COURT: I'll take judicial notice of
Ordinance 75 -16.
Go ahead.
MR. WOODS: That ordinance, Your Honor,
provides that any matter, any matter which has been
voted on by the Board of County Commissioners --
THE COURT: Where is that in here?
MR. WOODS: You'll have to look. That starts
in the first amendment. It's actually 70 -- if you
look at Ordinance 07 -50.
THE COURT: Sorry. Is that another ordinance?
MR. WOODS: Yes. But it's an amendment to the
original 75 -60. It's attached, Your Honor. It's
the second ordinance attached.
THE COURT: Oh, that's another one. We're
taking judicial notice of that, too?
MR. STEWART: i have no objection to any of
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this.
MR. WOODS: While we're doing that, there are
two others that bring us current.
There is an Ordinance 2009 -52.
THE COURT: Take judicial notice of that.
MR. WOODS: Section 2 -41.
THE COURT: That's part of what?
MR. WOODS: That's the last page. That is a
part of -- the way they renumber these things, I
don't know, but that's the current location of
where you would find this.
THE COURT: So this.is the convocation of the
ordinance?
MR. WOODS: If you look at any of the latter
three ordinances, Your Honor, A, at Paragraph 6:
Any matter which has been voted upon by the Board
of County Commissioners may be reconsidered.
Okay? And that's any matter. There is no
exception for contractual -- contracts that are
signed or other types of exceptions.
Now, there were a couple of requirements for
the reconsideration, and those requirements have
been complied with in this instance.
THE COURT: Is that in the record?
MR. WOODS: That is in the record. And, Your
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Honor, that would be with our response. If the
Court looks at Exhibits B through F of our
response, that contains all of the applicable
minute meetings.
THE COURT: I'll have to admit, I haven't read
all of those.
MR. WOODS: I mean, I'm going to summarize
them for the Court, and Mr. Stewart is free to
point out, you know, any errors, but I was going to
kind of condense it for the Court.
THE COURT: Okay.
MR. WOODS: And we would request -- we had
previously filed a motion to take judicial notice
of those meeting minutes.
THE COURT: Any objection to that?
MR. STEWART: No, sir.
THE COURT: We'll take judicial notice of the
transcript of the meetings of October 23, 2012, and
November 13, 2012, December 11, '12, of 2012,
January 8 and 9 of 2013, and March 26, 2013.
MR. WOODS: Correct. Thank you.
So November is when they vote to authorize the
signing of the extension agreement.
THE COURT: The November 13th, 2012, meeting?
MR. WOODS: Correct. And then there is the
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very next meeting, which is December. They vote to
reconsider. That's when the vote is made to
reconsider the authorization of that contract. So
that --
THE COURT:
the Board and Mr
That's the chain
MR. WOODS:
meeting periods,
THE COURT:
'12?
That's after Mr. Coletta has left
Nance is now on the board.
you were talking about?
Correct. But it's within the two
they vote to reconsider.
That happens on December 11th,
MR. WOODS: So that's within the two meetings,
meets the prerequisite of the ordinance.
On January 9th they actually vote to -- the
motion was made to revert back to Curry's 2010
contract, reinstating the original terms, including
the September 30th, 2013, date. So that was passed
by vote of three to two on January 9th of 2013.
So the ordinance has been fully followed and
complied with. What you do is you have to do the
motion to reconsider within two meetings and then
you have to -- you are presented with -- you have
to do a memorandum to the staff, and they vote.
They actually vote on the reconsideration matter
after notice in a later hearing.
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So that's what happened. I mean, it happened
in direct sequence.
THE COURT: So which meeting in October that's
the motion to approve the extension?
MR. WOODS: In the October 2012 meeting there
is a discussion of approving the extension.
THE COURT: The November 13, 2012, meeting?
MR. WOODS: No. That's when they authorize
Coyle to sign and then present him with a written
agreement. They have authorized Coyle to sign it.
THE COURT: Then at the next meeting,
October 11th, there is a motion to reconsider.
That's all that is, a motion to reconsider. Put it
back on the table for discussion?
MR. WOODS: Correct.
THE COURT: That's what the effect of that is?
MR. WOODS: Correct. And January 9 they
actually rescinded. They went back to the original
contract and rescinded the extension and amendment.
THE COURT: What happened on March 26?
MR. WOODS: March 26 they had another
discussion. They were talking about it. It was
180 days from the termination, and they were
talking about whether or not, you know, Mr. Curry
made progress and whether they thought they might
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extend. And they basically said, you know, We're
going to stick with it as is. If Mr. Curry later
comes backs and shows that he can make a profit as
a part of the airport, they may have reconsidered
and extended it somewhere thereafter.
THE COURT: That was just a discussion, no
formal action taken?
MR. WOODS: There was a vote. The vote was --
there was a vote, a motion not to extend Curry's
contract, allowing the contract to expire. But
this had previously been done at the
January 9th meeting as well.
THE COURT: Was there another vote?
MR. WOODS: It was three to two to let it
expire.
THE COURT: Okay.
MR. WOODS: All right. So that's where we are
with the ordinance.
For purposes of these motions and pursuant to
established Florida law, Mr. Curry is charged with
notice of the ordinance and the Board's absolute
right to reconsider.
I would like to present the Court with three
cases.
THE COURT: Are you saying as of March 26
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Mr. Curry knew his employment was going to end?
MR. WOODS: As of January 8th and 9th he knew
his employment was going to end.
So, Your Honor, the cases I'm showing the
Court now, the first case is a Supreme Court case,
American Home Assurance versus Plasma Materials
Corp., 908 So.2d 360. And basically the
highlighted portions basically stand for the
proposition that the public is on constructive
notice of statutory requirements. Each person is
presumed to know the law. All persons are presumed
to know the law and ignorance of the law is no
excuse. That's the general proposition.
The second case I present to the Court is
Harris versus School Board for Duval County, 921
So.2d 725, the first DCA case. And that case
stands for the proposition that a person who
contracts with the government is presumed to know
the law, including whether a particular contract
requires competitive bidding.
In other words, if you are going to contract
with a government entity, you've got to know what
the requirements are relative to entering properly,
properly entering into that contract.
The last case I would show the Court is Grant
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versus Brand, 525 So.2d 1017. The highlighted
portion of that case I would like to read into the
record, says, Page 4: Under such circumstances,
another principal of the law of contracts which
bears some relationship to common expression to
effect that everyone is presumed to know the law
becomes relevant. The laws which exist at the time
and place of the making of the contract enter into
and become a part of the contract made as if they
were expressly referred to and incorporated in its
terms.
And that's exactly what we have here, Your
Honor. Mr. Curry was -- he's in management within
the county. He has sat at many, many board
meetings. He was fully aware that the county board
does reconsider things. And Mr. Stewart's redo
ordinance was in place, fully effective, and it
becomes a part of the terms of entering into a
contract with the County.
The County is not an ordinary entity. It is a
governmental body. It has to act through a board.
It has processes and procedures that are not
applicable to ordinary private entities and
citizens. So you have to comply with these.
He knew that the county had the ability to
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undo this contract within two meetings.
Now, Mr. Stewart cited you to the hypothetical
about, what about the guy who moves down from
Virginia?
THE COURT: That wouldn't apply because there
has been no reliance upon this. I was under the
assumption this happened after he had entered into
the new contract and he was under the new contract
after the expiration of the first one.
MR. WOODS: There is no promissory style
because there is no detrimental reliance. He just
continued working under the agreement and continued
to work.
THE COURT: And he wasn't terminated right
away. The county let him continue until
September 30th of 2013.
MR. WOODS: I point out he never balked about
the county's action. He didn't say: When you
rescinded this agreement, you had no right to
rescind, so you breached, I'm going to sue you.
He didn't take that action. Instead he
continued to work under the agreement as it
existed.
With regard to the damages that they sought,
and I guess I heard Mr. Stewart -- they were
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originally seeking 120 some odd thousand dollars in
damages. They were seeking lost wages and
severance. I think Mr. Stewart, from what I heard
today, he's retreated from that and seeking lost
severance.
MR. STEWART: For purposes of today's hearing.
THE COURT: The only reason to get to that
would have to be at a trial.
MR. WOODS: Okay. And I would just point out
that, with regard to whether he mitigated, did he
take actions to get a new job, all of that stuff is
a fact issue and not proper for a final judgment.
The last partial issues I would like to
address are the attorney's fees issue.
THE COURT: What about exhaustion of
administrative remedies? Are you still making that
argument?
MR. WOODS: I think it plays more into what I
just argued, which was estoppel. He failed to take
any action. He continued --
THE COURT: Is there something he would have
to do?
MR. WOODS: The whole point of that argument
is he never went back to the board and said, you
know, he didn't -- he, as a manager, he had the
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authority to bring a motion or petition to, you
know, extend the contract again. He never did.
So --
THE COURT: That's not required, so we don't
have to worry about that.
MR. WOODS: Correct, Your Honor.
And then, last two cases I would like to make
the Court aware of, and these have to do with the
claims for attorney's fees, Your Honor. The first
case is the Joseph versus Commonwealth Land Title,
Case 707 So.2d 376, and the second case is the Pena
case, Florida Supreme Court Case, 664 So.2d 959.
What both of those cases say is that the
statute, 448.08, is, you know, it allows for
attorney's fees but it doesn't really describe the
type of claims it relates to. And obviously claims
for attorneys' fees, the statutes and case law are
strictly construed. There is no attorney's fees
provision in the contract, and they are suing on
the breach of contract.
THE COURT: But that statute, like you say, is
incorporated by -- I mean, if your ordinance is
incorporated into this contract, 448 is, too,
Mr. Woods.
MR. WOODS: I don't disagree, but I do
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disagree with its application, because what these
two cases say is, you are only entitled -- if you
had worked and you are owed money, there is accrued
wages, then you get your fees. Here we aren't
talking about accrued money that was owed. It's
not accrued money, it's not -- we didn't pay him
wages he was due through September 20. So for that
reason
THE COURT: He didn't work after
September 30th, 2013?
MR. WOODS: Correct. And he was fully paid up
until December 2013.
Thank you, Your Honor.
THE COURT: All right. Mr. Stewart?
MR. STEWART: Yes, sir. Four points.
THE COURT: I'm concerned about this
ordinance. Why doesn't this ordinance apply? Do
you have a case that would say --
MR. STEWART: I can't find any law on it.
Maybe it's one -- you run into that every once in a
while. And I didn't mean to interrupt.
THE COURT: No. Go ahead.
MR. STEWART: I guess it doesn't apply
because, contrary to basic contract law, if you
sign a contract, then you sign a contract and you
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are obligated by it. And also this ordinance
doesn't say they are immune from liability. That's
how the county is trying to spin it. What the
ordinance says is, gee, we can do over, we can
reconsider. But that doesn't mean they don't have
a responsibility for their contractual actions in
getting to that situation to start with.
As I said, three things -- well, now three
things. One, I've got the March 26th minutes here
from the Board of County Commissioners.
THE COURT: I have them here, too.
MR. WOODS: And I think it's on Page 208.
THE COURT: All right.
MR. STEWART: Is where -- 208, it says what
they did. And when I read it, what it said was
that they were reconsidering and decided they were
not going to go forward with Mr. Curry's contract.
But it doesn't make any difference whether it
happened January 29th or March 26th. Everybody
admits, that is what they did. They had a written
contract they decided they didn't want to abide by.
Those are the facts. A11 right.
Secondly, I believe the Court was under the
impression that Mr. Curry was not performing under
the new and amended agreement at the time the
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County took the position to renig on it. I have
his affidavit here. Mr. Curry's affidavit.
THE COURT: Had they started paying him under
the terms of the amended agreement?
MR. STEWART: Yes, sir. From Paragraph 4 and
5 --
THE COURT: He got a four percent raise,
right?
MR. STEWART: Yes, sir.
THE COURT: And they started paying him the
four percent raise before they canceled the
contract?
MR. STEWART: Yes, sir. That's Paragraph 5:
Collier County paid me according to the extended
and amended executive director's employment
agreement until September 30th, 2013.
So Mr. Curry, they had to give him a
four percent increase, and then he got paid that
four percent all the way to December of 2013.
THE COURT: No dispute as to that?
MR. WOODS: No, Your Honor.
THE COURT: Thank you.
MR. STEWART: The last thing is, Judge, is
that -- may I approach? As far as this issue of an
award of attorney's fees, I don't have any quarrel
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with the cases cited by counsel. But there is
specific law that defines severance benefits as
compensation for purposes of an attorney fee award
under 448.08, and that is the case law that I've
just provided to the Court. That's on all fours.
They have identified the deference benefits in the
contract. That's what we're suing for, and that's
what the case law says we're entitled to an award
for attorney's fees for.
Thank you, Judge.
THE COURT: In this case the County approved a
new contract with Mr. Curry as the airport director
for the Immokalee airport?
MR. STEWART: Over all of the airports.
THE COURT: Including Marco?
MR. STEWART: Yes, sir.
THE COURT: And he was --
MR. STEWART: And Everglades.
THE COURT: Executive director of the Collier
County Airport Authority?
MR. STEWART: Yes, sir.
THE COURT: The Board approved a new
agreement. What they did in November of 2012 was
they, in effect, entered into an evaluation by
creating a new contract with Mr. Curry which went
Avok i
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nto effect then. It wasn't an extension that
would take effect on October 1st of 2013, it went
into effect immediately. Mr. Coyle signed the
agreement and Mr. Curry signed the agreement.
And after that point the County was following
the terms of that contract, as it was amended and
extended.
MR. WOODS: May I address that last point very
briefly?
THE COURT: Well, all right, Mr. Woods.
Usually I'll let you argue and then I begin my
ruling.
MR. WOODS: I'm sorry. The one point, because
it was raised, I didn't have a chance -- the
payment of the four percent, the County does enter
into contracts frequently, and the County rarely
reconsiders, but has the ability to reconsider and
occasionally does reconsider. So the fact that
they enter into a contract and stop operating under
the contract, people that are dealing with the
County must realize, until two meetings pass, there
is a possibility that that may go away.
But we do enter into contracts, and a lot of
times there is reconsideration, and it starts from
whatever some period of time. I wanted to make the
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point.
THE COURT: Let's say someone entered into the
contract with the county to construct a building
for the county. They enter into the contract and
they start construction, and now they have spent
$500,000 to get this job ready. And then, two
meetings later, the County says, Oh, well, no,
we're not going to honor that contract.
MR. WOODS: In that situation you have an
excellent case of promissory estoppel, and that's
not what you have here. That's why Mr. Curry does
not have a case.
THE COURT: I'll let you respond to that, in
fairness, Mr. Stewart.
MR. STEWART: I don't feel I need to. He had
a written contract. He shouldn't have to rely on
an equitable principal when you have a written
contract with the county.
THE COURT: The county entered into the
contract, and the only reason that it was changed
by the county, apparently, was because of an
election in which Mr. Coletta was replaced by
Mr. Nance. Other than that, there is nothing
different. It doesn't seem right that the county
can just enter into a contract, put the contract
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into place, and then renig on it.
Plaintiff's Motion for Summary Judgment
granted. Defendant's Cross Motion for Summary
Judgment denied. I will order and reserve as to
attorneys' fees.
I'm assuming severance is considered part of
the wages, and then there would be a claim under
448.
MR. STEWART: Are you ruling on entitlement
now or are you --
THE COURT: I'm going to rule on entitlement
now and not the amount.
MR. STEWART: Those are just orders. We'll
work out the terms.
THE COURT: If this contract -- if the county
entered into a contract which would have taken
effect on October 1st of 2013, in other words, let
the existing contract run out, and then have the
new contract, it would be a different situation.
But here we actually entered into the contract and
everyone was operating under the new contract. The
county was, Mr. Curry was, and that was through
March of 2013. I guess you would say January.
Okay.
MR. STEWART: May I approach? I have orders
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granting and denying, and we'll work together on
it.
THE COURT: Mr. Woods, have you had a chance
to look at it?
MR. WOODS: Yes, sir.
THE COURT: What about the reservation? You
will submit another order?
MR. STEWART: That was just on -- I'll be
happy to. I was going to include that in the
judgment, but --
THE COURT: Was that part of your motion for
summary judgment?
MR. STEWART: Yes, sir.
MR. WOODS: We're going to want a final
judgment for appeal purposes anyway.
MR. STEWART: But I think the judge is asking
whether or not reservation of jurisdiction for
consideration of attorneys' fees, and I was going
to do that in the judgment.
Whatever your pleasure is, Judge.
THE COURT: So why don't you -- this is just
granting summary judgment. You need to submit a
final judgment.
MR. STEWART: Yes, sir. That would have the
reservation, for which -- the execution issue and
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the amount and all of that.
THE COURT: I agree.
MR. STEWART: Thank you, Judge.
THE COURT: Okay. Orders are signed.
(Proceedings concluded at 9:50 a.m.)
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CERTIFICATE OF REPORTER
STATE OF FLORIDA
COUNTY OF COLLIER
I, Elizabeth M. Brooks, Registered
Professional Reporter, Florida Professional Reporter, do
hereby certify that I was authorized to and did report
the foregoing proceedings, and that the transcript is a
true and correct record of my stenographic notes.
DATED this 14th day of June, 2014, at Naples,
Collier County, Florida.
Elizabeth M. Brooks
Registered Professional Reporter
Florida Professional Reporter
GREGORY COURT REPORTING SERVICE
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GREGORY COURT REPORTING SERVICE, INC.
2650 Airport Road South, Suite A
Naples, FL 34112
(239) 774 -4414 Fax(239)774 -5261
Scheduling @Gregorycourtreporting.com
Office of the County Attorney
ATTN: Accounts Payable
3299 Tamiami Trail E.
Suite 700
Naples, FL 34112 -0000
Gregory N. Woods, Esq.
Curry vs. Collier County
Purchase Order No: 4500150648
INVOICE NO.:
INVOICE DATE:
REPORTER:
Lynn Brooks
ID# 58- 2116770
9/8/2015 16.K.9.
9985
6/15/2014
5/29/2014. Transcribe Hearing Before 146.25
Judge Hardt (39 pgs.)
Transcript Picked Up
Sub Total
Paid
Balance Due
OFFICES IN NAPLES, BONITA SPRINGS AND FT. MYERS
WE ACCEPT VISA, MASTERCARD & AMERICAN EXPRESS
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0.00
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9/8/2015 16.K.9.
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER
COUNTY, FLORIDA CIRCUIT CIVIL
THOMAS C. CURRY,
Plaintiff,
atm
Case No. 2014 CA 0087
(Honorable Frederick R. Hardt)
COLLIER COUNTY, a political .')
subdivision-of.the State.of.. Florida, ... ....__... _ __ _ .. _..... _ ....._ ..._ _ _ _ f .. _ ..
'r
Defendant.
ra I ��
FINAL SUMMARY JUDGII.NT `',r•
Pursuant to the Order dated May 29, 2014, Granting Plaintifrs, THOMAS C. �p
Motion for Final Summary Judgment, it is hereby
ORDERED, ADJUDGED AND DECREED that:
I. The Plaintiff, THOMAS C. CURRY, shall recover from the Defendant, COLLIER
COUNTY, a political subdivision of the State of Florida, the sum of $70,93533, for which let
execution issue.
2. The Court awards attorney fees pursuant to Florida Statute 448.08 and reserves
jurisdiction to determine an amount, plus prejudgment interest of $2,612.09 as of July 21, 2014 and
costs of $403.00 for a total of $73,627.69 which shall bear interest at 4.7 %.
DONE AND ORDERED in Chambers in Naples, Collier County, Florida on this the
day of July, 2014. 1"
CK R. HARDT
CIRCUIT COURT JUDGE
Conformed copies electronically provided to:
Greg Wood, Esquire at gwoods(@Iawfirmnaples.com
Cote en M. Greene, Esquire at cotleengreene(alcoIlier oe v.net
Joseph D. Stewart at istewara jdsleeal.com
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
COLLIER COUNTY, a political subdivision
of the State of Florida,
Appellant,
V.
THOMAS C. CURRY,
Appellee.
Opinion filed June 24, 2015.
Appeal from the Circuit Court for Collier
County; Frederick R. Hardt, Judge.
Gregory N. Woods of Woods, Weidenmiller,
Michetti & Rudnick, P.L., Naples; and
Colleen M. Greene of Collier County
Attorney's Office, Naples, for Appellant.
Joseph D. Stewart of Joseph D. Stewart,
P.A., Naples, for Appellee.
CASANUEVA, Judge.
9/812015 16.K.9.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
Case No. 2D14 -3202
We dismiss for lack of jurisdiction Collier County's challenge to the trial
court's award of attorney's fees to Thomas C. Curry. The trial court's ruling on
attorney's fees determined entitlement but reserved jurisdiction to determine the
amount. Thus, we lack jurisdiction to review this issue. See Mcllveen v. Mcliveen, 644
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So. 2d 612, 612 (Fla. 2d DCA 1994) (holding "an order which only determines the right
to attorney's fees without setting the amount is a nonappealable, nonfinal order "). In all
other respects, we affirm the final summary judgment.
Affirmed in part; dismissed in part.
NORTHCUTT and BLACK, JJ., Concur.
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