Loading...
Agenda 07/08/2014 Item #16K 67/$/2014 16.K.6. EXECUTIVE SUMMARY Recommendation that the County Attorney be directed to pursue an appeal in the case entitled Thomas C. Curry v. Collier County, Case No. 14- 0087 -CA. OBJECTIVE: To appeal an adverse decision of the Trial Court which granted Mr. Curry's Motion for Summary Judgment and awarded severance damages and attorney's fees to Mr. Curry. CONSIDERATIONS: On May 29, 2014, the Trial Court granted Mr. Curry's Motion for Summary Judgment and awarded Mr. Curry severance damages ($70,347.97) and attorney's fees pursuant to Section 448.08, Fla. Stat. The Court reserved jurisdiction to determine the amount of the attorneys fees (estimated to be $25,000). The Trial Court's Order is attached together with the Hearing Transcript. It is the position of the County Attorney that the decision is in error and that as a matter of law Mr. Curry is entitled to neither severance damages nor attorney's fees. To preserve its rights, the County filed a Notice of Appeal on June 27, 2014 based on the language in the Order granting Final Summary Judgment (which varied from the ruling from the bench which ordered the parties to submit a Final Judgment). FISCAL IMPACT: Outside counsel costs are expected to be under $5,000, as the bulk of the appellate work will be done in- house. There is the possibility that additional attorney's fees could be awarded if the appeal is unsuccessful. GROWTH MANAGEMENT IMPACT: None. RECOMMENDATION: That the County Attorney be directed to pursue an appeal in the case entitled Thomas C. Curry v. Collier County, Case No. 14- 0087 -CA. PREPARED BY: Jeffrey A. Klatzkow, County Attorney Attachments: (1) Order dated May 29, 2014; and (2) Transcript of the Summary Judgment Hearing dated May 29, 2014 Packet Page -2415- 7/8/2014 16.K.6. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.K.16.K.6. Item Summary: Recommendation that the County Attorney be directed to pursue an appeal in the case entitled Thomas C. Curry v. Collier County, Case No. 14- 0087 -CA. Meeting Date: 7/8/2014 Prepared By Name: CrotteauKathynell Title: Legal Secretary, CAO Office Administration 6/30/2014 2:53:58 PM Approved By Name: KlatzkowJeff Title: County Attorney, Date: 6/30/2014 3:47:31 PM Name: IsacksonMark Title: Director -Corp Financial and Mngmt Svs, Office of Management & Budget Date: 6/30/2014 4:36:39 PM Name: OchsLeo Title: County Manager, County Managers Office Date: 6/30/2014 7:37:11 PM Packet Page -2416- 7/8/2014 16.K.6. IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIRCUIT CIVIL THOMAS C. CURRY, Plaintiff, CASE NO. 14- 0087 -CA VS. COLLIER COUNTY, a political subdivision of the State of Florida, Defendant, Fkd In OP-0 COI:t By ORDER GRANTING PLAINTIFF' MOTION FOR FINAL SUMMARY JUDGMENT THIS CAUSE having come before this Honorable Court upon Plaintiffs 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 Plaintiffs Motion for Final Summary Judgment be, and the same is hereby Granted. DONE and ORDERED in Chambers at Collier County, Naples, Florida this 29 Day of May, 2014. able Frederick R. H Circa it Judge Copies provided electronically to: Gregory N. Woods, Esquire at:„ woods« lawfirmnaples.com Colleen Greene, Esquire at: colleene�-,reene�icollier„ro�' .net Joseph D. Stewart at: jstewartKcuidsle al.com Packet Page -2417- `I 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). 7/8/2014 16.K.6. II 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. 26SO Airport Road South Naples, FL 34112 ADIAINAL Packet Page -2418- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 • 24 25 APPEARANCES 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 Packet Page -2419- 7/8/2014 16.K.6. 40 C. • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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. GREGORY COURT REPORTING SERVICE Packet Page -2420- • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2421- 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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. GREGORY COURT REPORTING SERVICE Packet Page -2422- n 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. The previous contract would have 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. GREGORY COURT REPORTING SERVICE Packet Page -2423- to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2424- 0 U 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2425- Ll • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2426- .7 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2427- 0 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2428- 9 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2429- 40 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 1 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 GREGORY COURT REPORTING SERVICE Packet Page -2430- C: 0 C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 1 Z 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 GREGORY COURT REPORTING SERVICE Packet Page -2431- • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2432- • 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 1w 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? GREGORY COURT REPORTING SERVICE Packet Page - 2433 - 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 lst 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 GREGORY COURT REPORTING SERVICE Packet Page -2434- U 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2435- 0 1] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2436- 0 i • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 LM GREGORY COURT REPORTING SERVICE i Packet Page -2437- r-� L---A r 1 U • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2438- 0 • n LJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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. GREGORY COURT REPORTING SERVICE Packet Page -2439- rwfim i • n LJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. L ✓ 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 GREGORY COURT REPORTING SERVICE Packet Page -2440- 0 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. �z 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 GREGORY COURT REPORTING SERVICE Packet Page -2441- M • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. L. J 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 GREGORY COURT REPORTING SERVICE Packet Page -2442- 0 C7 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2443- • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2444- 0 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2445- • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. L J 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 GREGORY COURT REPORTING SERVICE Packet Page -2446- � 7 r1 U 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2447- 0 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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. All 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 GREGORY COURT REPORTING SERVICE Packet Page -2448- • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2449- • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2450- r� U 1�1 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. into 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 GREGORY COURT REPORTING SERVICE Packet Page -2451- go • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2452- • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. 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 GREGORY COURT REPORTING SERVICE Packet Page -2453- • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. J I 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 GREGORY COURT REPORTING SERVICE Packet Page -2454- 1 2 3 4 5 6 7 8 9 10 11 . 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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.) GREGORY COURT REPORTING SERVICE Packet Page -2455- 7/8/2014 16.K.6. • 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7/8/2014 16.K.6. J J 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 Packet Page -2456- GREGORY COURT REPORTING SERVICE, INC. 2650 Airport Road South, Suite A Naples, FL 34112 (239) 774 -4414 Fax (239)774 -5261 Schoduling@Gregorycourtmporting.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 7/8/2014 16.K.6. 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 S AMERICAN EXPRESS Packet Page -2457- 146.25 0.00 146.25