In the Matter of:
Robert Dale, et. al. vs.
Viera East Community Development District

JASON  SHOWE

August 28, 2019

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ORANGE LEGAL

	 www.Orc1ngeLegal.com
800-275-7991

JASON SHOWE

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VIERA EAST COMMUNITY DEVELOPMENT DISTRICT
ATTORNEY/CLIENT SESSION

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DATE:

TIME:

PLACE:

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AUGUST 28, 2019
2:57 P.M. - 3:44 P.M.

FAITH LUTHERAN CHURCH 5550 FAITH DRIVE
ROCKLEDGE, FLORIDA 32955

9	REPORTED BY:	STACEY BARKLEY, NOTARY PUBLIC STATE OF FLORIDA
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APPEARANCES:

JACK MCELROY, ESQUIRE
BRETT RENTON, ESQUIRE
OF:	Shutts & Bowen, LLP
300 South Orange Avenue, Suite 1600 Orlando, Florida 32801

Counsel for the District

BOARD MEMBERS:
Paul McCarthy, Chairman David Bedwell
William Oakley Jo Walsh Melinda Thomsen Jason Showe Lane Burney

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MR. RENTON:	Hello, everybody.	Again, I'm

Brett Renton, one of the litigators you've obtained
to assist with you the lawsuit brought by these four

Plaintiffs.	We have just entered into an
attorney/client session, also known and commonly
referred to as a shade session, as this meeting
takes place out of the sunshine and is meant to
provide you and the litigation team the ability to
discuss in private all the litigation matters.
There's a few things that you need to
understand and take very seriously.	And so with
that, one, what is said in this room must remain in
this room.	Meaning, you cannot disclose this
discussion with anybody or have any private session
with anybody about this meeting not in this room.
That said, as you are board members, you are still
subject to the Sunshine Law.	There's not an
exception for you to talk about anything in this
meeting once we leave here today.	However, you can
only talk with Jason or ourselves.	You cannot talk
to anybody else who is not in this meeting.	Okay.
Second, this private session must remain on

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topic.	We are limited today to our discussion dealing with just settlement negotiations and litigation strategy involving the litigation itself. It can't steer off into discussions about other topics.		So that's the guidepost that we have to remain in as we talk.
Three, you cannot take any formal action while we are in this shade meeting.	Okay.	Rather, once this session concludes, any formal action that you will need to take when we go back into the meeting, you can then make whatever motions you would like and take whatever votes that you need.		So, remember, we are in a private session right now to have our discussion.	Everything that's being said is being taken down.	Once we adjourn from this, you'll go back into the public meeting.		And you can take any formal votes, approvals, actions, et cetera that you would like at that meeting.	This is really the opportunity to communicate your thoughts with
one another and your counsel and for us to discuss
the strategy of the case and truly just have a
discussion about it.
But the important thing to note is that everything that is being said is being taken down verbatim by a court reporter.	Okay.	What that

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means is she's going to produce a transcription
verbatim of who is saying what.	And then that
document will ultimately be made available once the
litigation is concluded.	So what occurs during this
session is not going to always remain private.	So
keep that in mind as you make comments or what you
put on the record.	At some point, what you say may
ultimately get back to parties who are not in this
room, again, once the litigation concludes.	Okay.
Does anybody have any questions as to those points?
Okay.	If not, this is Jack McElroy.	He's a partner
over at Shutts & Bowen and chief litigation counsel

on this matter.	Jack?
MR. MCELROY:	Good afternoon.	Pleasure meeting

everyone this afternoon.	I've been a litigator for
about 30 years, actually, 30 years this year.	Hard

to believe when I say it out loud.

I 1 ve handled a

wide variety of litigation, commercial litigation,
land use matters, ownership disputes, very large
dollar amount bank litigation.	So I 1 ve been brought
into this matter because we 1 re taking it serious and
you are taking it serious.

First of all what I want to do is, I want to

discuss the complaint that 1 s been filed against you.
And then I will go into what the case law is on the
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issues that have been raised.	And then we'll talk
about our proposed course of action that we're going
to recommend to you.	As for the complaint, as you
know, the Plaintiffs have sought declaratory relief
and injunctive relief against you.	And I apologize
if I have to use legal terms from time to time.	And
I'll try to make sure that -- is anyone here a
lawyer on this board?	So I'm going to try to --
when I use a legal term, I'm going to try to break
it down more into laymen's terms as well.
Declaratory relief is, they're just asking the
judge to say, Judge, we want you to make a ruling on
what the rights of the parties are here.	That's
what they're asking for in declaratory relief.	In
the injunction relief they're saying, Judge, we want
you to stop this board from doing what they're doing
here.	They have a number of problems with this
complaint.	We've looked through it and we've
analyzed it.	There are a number of pleading
problems with the complaint.	A complaint has to be
well pled and state a cause of action in order for
the complaint to move forward.
Some of the problems that they have with this
complaint that we've pointed out and seen is they
failed to sufficiently allege the standing of the

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Plaintiffs.	Standing means they have the right to sue.	They haven't made the right allegations as to why these Plaintiffs have a right to sue in this case.		They failed to sufficiently allege that the statutes that they say you haven't complied with.
They just say in general -- they say in general, you

haven't complied with the pertinent statutes.	They need to identify the statutes.	They need to say why you didn't comply with those statutes.
They have inconsistent allegations of the injunctive relief that they're seeking.	Injunctive relief -- in order to get injunctive relief, one of the elements of that cause of action is that you have to have irreparable harm.	And in their complaint they allege that they have irreparable harm.	But then they go on I think in the very next sentence, and say we have damages.		Those two are inconsistent.	You can't have both damages and irreparable harm.	They failed to attach all the necessary exhibits.		They're complaining about a resolution with an action you've taken.	You took that action by way of resolution.	They didn't attach the resolution to the complaint or any of the previous resolutions regarding the assessments or
the fact that this was a validated bond.	I mean, I

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think there's an argument to be made that they

should attach the original bond validation as well.
They are challenging the issuance of bonds that
have already been authorized and validated.	All of
these things, all these problems with the complaint
that they have make their complaint susceptible to a
motion to dismiss.	A motion to dismiss is simply
when we go into the Court and say, Your Honor, they
haven't pled a good cause of action.	They haven't
pled what they have to plead in order to state a
cause of action against us and here are the various
reasons why this complaint should be dismissed.
Now, what the Court looks at when determining
whether or not to grant a motion to dismiss, the
Court takes all well-pled allegations that are in
the complaint and the Court considers them to be
true, whether they are true or not, for the purposes
of motion to dismiss, the Court says, I'm going to
assume that everything they said is true.	If
everything they said is true and they still don't
have a cause of action, I'm going to dismiss the
complaint.	What happens when a complaint is
dismissed?	Almost all the time when a complaint is
dismissed, they have the -- the Plaintiffs have the
opportunity to amend their complaint to fix the
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problems that have been identified.	Some of these
problems might not be able to be fixed.	But they
are going to have that opportunity.	Every now and
then, rarely, you have a situation where a complaint
can be dismissed with prejudice.	And the Court
says, there's nothing you can do to fix this and
make this a valid cause of action.	So I'm going to
dismiss with prejudice.	That's extremely rare that
that happens.
So that's what -- you know, this complaint as
it stands now is susceptible to a motion to dismiss.
I want to take a moment and talk about the case law
that applies to this complaint.	Because when a
judge is making a decision, the judge looks
primarily at two things.	The judge looks at
statutes that govern what the issues are.	And the

judge looks at what we call precedent.

In the

United States we operate under -- unless you live in
Louisiana, we operate under the English Common Law
system.	English Common Law system was such that
they said, hey, if issues have been decided before
by higher courts, then we should look to what those
decisions are applied to those issues.	And if we
have similar issues here, similar facts here, then

we should -- to try to be consistent, we should look

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at those previous cases.	That's what is meant by precedent.	Precedent, when you have the -- the Florida Supreme Court has a decision and you're in Circuit Court, the judge in Circuit Court is going to look at that Florida Supreme Court case and say, okay, if the facts are pretty similar here, I'm going to be looking to Florida Supreme Court.	And how I'm going to decide here is going to be guided by this binding precedent.
We have a real good case that I've handed out to you.	It's a City of Winter Springs versus State of Florida.	It's a Florida Supreme Court case from 2001.	And if you'll turn to the second page, you'll see a highlighted paragraph.	This is where the case sets forth two tests.	It sets forth one for bond validation and one for special assessments.		Let's talk about the bond validation test first.	That's in the first three lines of this highlighted language.		It says this Court's scope of review and bond validation cases is limited to the following issues.		Number one, whether the public body has the authority to issue bonds.	Number two, whether the purpose of the obligation is legal.	And number three, whether the bond issuance complies with the requirements of the law.

Orange Legal

Now, the test right there, even though they've
sued you, they enjoin you from issuing these bonds,
that test really isn't applicable here.	And here is
why.	That ship sailed back in 1992.	When these
bonds were validated in Circuit Court and no appeal
was taken, the bond was properly validated.	Your
power to issue those bonds in the amounts that were
in that validation, it's my understanding that these
bonds that are being issued now are within that
first amount that was validated.	That's already
been decided.
So one of the things that we'll argue in this
case is they're trying to reargue something that's
already been decided back in 1992.	Any challenge to
the issuance of the bonds themselves is time barred.
Meaning, it's too late.	The statute of limitations
has run.	It's too late to file.	It's also barred
by something we know as the doctrine of res
judicata, which basically means it's already been
decided and it's too late for anybody to complain.
Now, the benefit special assessment is the next
test that's talked about in the City of Winter
Springs case.	After you've come down to line five,
midway through line five the Court states, to comply
with the requirements of the law, a special

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assessment funding, a bond issuance, must satisfy
the following two-prong test; number one, the
property burden by the assessment must derive the
special benefit from service provided by the

assessment; and, number two, the assessment for the
services must be properly apportioned among the
properties receiving the benefit.	That's the test.

The court goes on to say, when they say the

standard review, this is after the	this is down

on the fourth line from the bottom of that
paragraph.	The Court says, the standard of review,

meaning how the Court is supposed to look at this

case when they're reviewing it, the standard of
review is the same for both prongs.	That is, the
legislative determination as to the exercise of

special benefits and as to the apportionment of cost

of those benefits should be upheld, unless the

determination is arbitrary.	Your decision that you
made in your resolution, that was a legislative
determination.	What the Court is saying here is

that that decision is affording great deference,

that you're right, unless you acted arbitrarily.	If
you have substantial competent evidence to your
decision and you did not act arbitrarily, your
decision will be upheld.	The Judge isn't going to

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come in and say, well, I think the apportionment should be this or I think that maybe it doesn't benefit these people as much as it benefits these people.	As long as you have competent substantial evidence to support your decision, the judge isn't going to second-guess you.
Now, the benefit special assessment is the only thing that the Plaintiffs can now challenge at this time.	That benefit special assessment, they can challenge that within four years of when the benefit is assessed	excuse me -- the assessment is made. So they are within time on challenging that.	As far as the prongs go, let's talk about that first prong that the property burdened by the assessment must derive the special benefit from service provided by the assessment.		Well, that first prong is arguably already been met and decided by the bond validation
decision in 1992.	It's also supported by the
reports that you relied upon in making your decision in July.
The second prong is supported by those reports
as well.	So we think you've got good defenses to the action.	However, we think that you can make your defenses to that action even better.	We think that your chances of prevailing, ultimately

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prevailing in this case, could be further bolstered
if you had more testimony and evidence presented
supporting both the special benefit and the
apportionment decision.	You have the ability to get
that other evidence.
When I have -- if I have a contract case and
it's a breach of contract case, my evidence is set
once that contract has been breached.	In this
situation, the evidence that we have for this
litigation is not set in stone.	You can supplement
the evidence that you have.	And for that reason,
we're recommending that you do the following.	We
are recommending that you supplement the current
reports with more detail on those two prongs with
more analysis to back up what's being concluded in
those reports.	Second, we recommend that you retain
the services of another expert, such as an economist
or planner, who can further support the finding of
both special benefit and the appropriateness of the
apportionment of the assessment.
And, for instance, I know that Hank Fishkind,
he's a well-known expert economist.	And he did the
analysis back in 1992 on this special -- on the
issuance of these bonds and the bond validation.	He
did the work on that.	He's still around.	He still

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does that type of work.	We could go to him or we
could go to somebody like him and say, can you
supplement what you did back in 1992, come in and
testify before this board to give them additional
evidence to support the decision that they've made?
We also -- number three, we recommend that you then
renotice another public hearing where you consider
this supplemental evidence and testimony.	And then
if you conclude -- after considering the
supplemental evidence and testimony, if you then
conclude that the supplemental evidence supports
your original decision, you can then enter into a
..	13	new resolution that adopts the original decision and
states the reasons that you are doing so.
Now the Plaintiffs, in order to prevail here,
they have to show that you acted in an arbitrary
manner.	As we sit here today, that would be
difficult for them to do.	However, if you follow
our recommendations, then it's going to be nearly
impossible for them to show you acted arbitrarily.
You're bolstering your case.	In the meantime, what
we would do is, we would move to dismiss the
complaint based on the pleadings, deficiencies that
we talked about before, keeping in mind that the
Plaintiffs are going to likely have the opportunity

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to amend.	And when they file an amended complaint,
at that point we would likely file an answer in
affirmative defenses.	We could move to dismiss that
too if it's still deficient.	And if we think
they're going to have a problem ever fixing it, we
might decide to move to dismiss it.	After an
amendment, we would probably file an answer in
affirmative defenses.	That would probably occur
about the same time as that new public hearing.
After that new public hearing, assuming that
you do then reaffirm your previous decision, we
would then file a motion for summary judgment.	And
we would have as the evidence for that motion for
summary judgment -- first of all, let me back up.	A
motion for summary judgment is where you go in and
you say to the Court, okay, there are no facts in
dispute.	All the facts are known.	There are no
material issues of fact that are in dispute.	As a
matter of law, you should rule in our favor and
there should not be a necessity for a trial.	That
is, in laymen's terms, basically, what a motion for
summary judgment is.	After you have that other
hearing and we have that other evidence to support
the evidence that you already have, we then file
that motion for summary judgment, affidavit

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supporting that motion for summary judgment.	Then
we would go and we would have a hearing on that. And hopefully the judge would say there's no necessity to have a trial.	There's enough evidence here for the board to hang their hat on.	It's
competent and substantial evidence.	Let me tell you what that means.	Competent evidence means it's relevant evidence.		Substantial evidence doesn't mean that it's greater than 50 percent.	Substantial evidence just means it's better than insubstantial. That's a moving term.	Your standards are pretty low on what you have to have for your evidence.	And we feel pretty confident that we would have a good chance of winning a motion for summary judgment.	If we didn't win a motion for summary judgement, then the case would go to trial.	And we would go to trial.	And the Court will take evidence at trial and reach a decision.	And then at that point, at any point, if they're not happy with a final decision the Court makes, which would be either the summary judgment or a judgment in favor at trial, they can then appeal.	But we feel confident too that at this point, in the worst-case scenario, all they could do is get a court to say, you've got to go back and determine what the apportionment is of

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that special assessment.	The fact that it's been -­ there's a benefit, that's already been determined.
The fact that you can issue these bonds, that's
already been determined.	Anybody have any questions?
MS. THOMSEN:	Is this a judge type of situation

and not a jury?
MR. MCELROY: That's right. There's no demand for jury. I'm not even sure if they could demand a jury. Judge Paulk is the judge.
MS. THOMSEN:	We already know the judge.	Do you have any history on him?
MR. MCELROY:	I haven1 t appeared in front of the judge.	But I heard he's a no-nonsense good judge.
MS. THOMSEN:	Okay.
MR. BEDWELL:	Are we down to not trying to prove the benefits greater than the cost and how we apportion the assessment to all the people?
MR. MCELROY:	I think you would still have a little bit more supplement to the benefit analysis. But the apportionment, that 1 s where you would have some more analysis.
MR. BEDWELL:	In the 1992, wasn't there a lot
of detail about the benefit?	And restating that

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isn't enough?	You think we need to find more?

MS. THOMSEN:	Two different things though.
MR. MCELROY:	You are making another

assessment.	Now you need to -- you have adopted
that 1992 decision.	But I do think that you could
have -- let's put it this way.	It might be belt

with suspenders.	But you've got to do that.	I
think you really want to do that other apportionment
for the analysis too.
MR. BEDWELL:	I'm just thinking, if we had
another meeting with the public and we read the
benefit analysis that was made in 1992 in detail and

say we agree with this.
MR. MCELROY:	Yes.
MR. BEDWELL:	Nothing has changed.	Maybe we'll

find something.	I don't know.	But let's assume
nothing changes.	We just state that at the meeting
for information purposes to the public.
MR. MCELROY:	What you would want to do as well
though is say, right now you're doing -- you're
doing a remodel?

MS. THOMSEN:	Yeah.
MR. MCELROY:	So you're doing some things that

are little different than 1992.	So I think that's
why you want to have an additional analysis that

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says, yes, those 1992 things, they apply as well.
And that's why, you know, we agree with that
analysis.	But you want to have testimony as to what
you 1 re doing now with the money.
MR. BEDWELL:	The second part is the Viera

company decided how to apportion these bonds to

residents and commercial properties.

MR. MCELROY:	Yes.
MR. BEDWELL:	I don't know.	Is there anything

that says why they did it that way?	Or I'm not sure
what we 1 re going to come up with would be different.
MR. MCELROY:	We're still looking into that.	I
can think off the top of my head a lot of reasons
why that apportionment would be where it is.	It's
not something that -- it's something you would want
an expert to come in and opine to.

MR. BEDWELL:	An expert to help us with that?
MR. MCELROY:	Yes.	Either an economist or a

planner can come in and say why it should be four
ERUs per commercial acre, why that makes sense.	And
that1 s what we're suggesting.
MR. BEDWELL:	We have CDDs in Florida.	Is this
kind of similar to the apportionment of bonds than
the other CCDs?
MR. SHOWE:	Based on my experience, no, every

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CDD is like an individual fingerprint.	They all
have different methodologies and different ways.
MR. BEDWELL:	So commercial property has not
always got four units and --
MR. SHOWE:	No.	It depends on the
infrastructure that you're levying the assessment

on.
MR. MCCARTHY:	It sounds like what you're
recommending is we get an expert involved at this
particular point to support that position.
MR. MCELROY:	At least one.	Probably just one.
MS. THOMSEN:	An all-encompassing one?	Because
I'm seeing economist here, but then I'm also seeing

the analysis of
MR. SHOWE:	To follow up on that, I think with
that economist records, with his report, then the
engineer can reference that report and say, in
accordance with this report is why I think the
benefit is this.	Our assessment report would also
reference that.
MS. THOMSEN:	We can use our engineer
MR. SHOWE:	Correct.
MS. THOMSEN:	-- to use the information to that
the economist -- if we bring in an economist, it's
not like we are buying too many

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MR. SHOWE:	Correct.	I think it would be a
matter of supplementing the documents we already
largely have.	It would be adding a paragraph to
each one referencing what the economist is
confirming.	And to his point, Fishkind is the one
that did the original 1992 factoring of the impact

fees, both for the water management and the
recreation, which is still the same apportionment
that we're using.
MR. BEDWELL:	This economist can address the
benefit greater than the coast?

MR. MCELROY:	Yes.
MR. BEDWELL:	And the apportionment?
MR. MCELROY:	Yes.
MS. WALSH:	I think the other side of that coin

is the loss of benefit if we don 1 t do it.	What's
going to impact the homeowners if we don't do the
things that we 1 re prescribing to do?

MS. THOMSEN:	Very important.
MS. WALSH:	When you look at the golf courses
that are closed, Port Malabar, things like that
where they had $400,000 homes and now they have 23	$100,000 homes.
MR. MCELROY:	We'll have the economist address
that as well.	Very good point.

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MR. OAKLEY:	Jack, would you recommend we use the gentleman that did the thing before back in the '90s or recommend get somebody else?
MR. MCELROY:	My recommendation, if we can hang Fishkind, let 1 s get him.
MR. SHOWE:	If you don't know, he's

well-respected in the industry.	His name carries a lot of weight both in the government and financial field.	That is one of the premier names in government, financing and government economy.	He presents at all the government financial conferences.
MR. MCELROY:	He testifies in court as well.
MS. WALSH:	He's familiar with that setting.
MR. BEDWELL:	It helps if he goes before the
judge to say we had another public meeting -­
MR. MCELROY:	That's right.
MR. BEDWELL:	as an economist and has stated
this to the public.
MR. MCELROY:	What we say in front of the judge, they raised these issues.	We thought we were good before on our evidence.	But we gave them an opportunity.	The board wanted an opportunity to look at it even further, took another look.	And
we'll take another look.	And then this isn 1 t set in
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stone.	Maybe the economist comes in and says, no,
this is -- you know, I disagree.	I think it's
something different.	Then you make a different
decision.	That could very well happen.	We don't
know until we see what he says.
MR. BEDWELL:	Has the judge gotten involved

with this yet?

MR. MCELROY:	No.
MR. BEDWELL:	Can we go forward and issue this

bond or you recommend we stop?

MR. MCELROY:	Well, here is your problem.

You've got a de facto	they've got a de facto

injunction right now.	Meaning that even though the

judge hasn't given them an injunction, they've

really got an injunction, because nobody is going to
finance it with this lawsuit hanging over our head.
MR. SHOWE:	There's no appetite in the bond
market given the potential litigation.
MR. BEDWELL:	So in effect, we've got an
injunction.	In terms of going forward with this
expert with the absence of our general manager, what
is the procedure there for contacting him?	The
board is going to have to vote on it in terms of
what his payment is going to be?

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MR. SHOWE:	Procedurally, what's your

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recommendation?

MR. MCELROY:	Well, we're going to reach out.

I need to figure out how we

how you make the

decision.	What we would do is, we would reach out
and see his availability, see what he would charge
for this.	And then I think you -- I believe you
then have to approve --

MS. THOMSEN:	Jason would --
MR. MCELROY:	Present that, you present it to

them and they'll approve that further expenditure
for this.
MR. MCCARTHY:	That's the first step in getting
the process going.
MR. MCELROY:	That's the first step in getting
the process going.	Also the first step in getting
the process going is for you to say, Jack, Brett, we
agree with your recommendation.	We want you to go
ahead and proceed as you have said.	And then we'll
get a motion to dismiss ready and get it filed and
get on the calendar.	When did you say the judge has

the next available hearing?
MR. RENTON:	It was November 18.
MS. WALSH:	Let's get it.
MS. THOMSEN:	That was the other question.
What kind of timing are we looking at best guess?

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MR. MCELROY:	Well, Jason indicates that the
next public hearing you could have on this is going

to be in November.

MR. SHOWE:	Timing-wise, that would -- unless

we schedule some special meetings to kind of deal

with things intermittently, so your next board

meeting would be September 25.	If we could have
that economist's report, our engineer's report and

the methodology all at that meeting, we could have

you then approve a resolution September 25 that

would authorize moving forward with that hearing

process.	It is a 30-day notice we have to send out.
So we would be looking, at that point, about
mid-November, at the earliest, to hold that public

hearing.

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two.

MS. THOMSEN:	We only have one meeting, not

MR. SHOWE:	We have two.	You would likely want
to set this as a separate.

MR. BEDWELL:	How do we approve this economist?

When do we do that, wait until the next board

meeting?

MR. MCELROY:	You wouldn't have the report.
MR. SHOWE:	Just push it out a month from that.
Is that a timing concern?

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MR. RENTON:	Unless --
MR. MCELROY:	No.	It 1 s not a timing concern

from our standpoint in the litigation.	Your only
timing concern is, what happens to the bond market?

MS. WALSH:	Yeah.
MR. OAKLEY:	That's a question --
MR. OAKLEY:	What I want to know is, after this

is all said and done, do we recuperate any of your
costs and the specialists' costs?
MR. MCELROY:	That's an interesting question.
There's not -- that's another problem with their
complaint.	They have alleged an entitlement to
attorneys fees.	They have not alleged how they are
entitled to attorneys fees.	Florida law requires
you do that.	You either have to be entitled to
attorneys' fees by contract or statute.	These
Plaintiffs don't have a contract with you.	There's
not a statute that says they get their attorneys'
fees.	So they are not entitled attorneys' fees.
But you're not entitled to attorneys' fees either,
except by way of a particular statute that's out
there if the pleadings are frivolous.
If there have been frivolous pleadings filed
and the statute number is Florida Statute 57.105.
If there have been frivolous pleadings filed, you

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can send what's known as a safe harbor notice to the

Plaintiffs' attorney saying, we think your pleadings
are frivolous and here is why.	And you've got 21
days to either dismiss your complaint or withdraw
the frivolous pleadings.	And if you don't do so,
we're going to seek our attorneys' fees against you.
And then at the end of the case, if the judge agrees
with you, pleadings were frivolous, the judge can
award the attorneys' fees in equal parts against
both the attorney and the individual Plaintiffs.
So what we might consider doing after you
obtain the additional evidence, at that point, once
you have that supplemental evidence to support your
decision and you made that decision again, at that
point say, your pleading are frivolous, send out
that notice, send a 57.105 notice.	And then they
have to -- you know, that's where the rubber meets
the road.	Either you're really serious and think
you've got a good case or you're putting yourself at
risk for having to pay the attorneys' fees if you
are wrong.	So we may do that.	That's something
we'll address at a later date.
MR. OAKLEY:	The other issue that I have and
Jason and I --
MR. MCELROY:	Sorry.	Let me finish one more

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thing on that.	That's only the attorneys' fees from
the point you send that notice forward.	So any
attorneys' fees that you've incurred prior to that
you wouldn't recover.
MR. OAKLEY:	The other question I have is the
bond issue.	By delaying all of this, if the bond
market goes to the point where the interest rate
goes up, just the homeowners are eating all that?

MR. MCELROY:	That's right.
MR. OAKLEY:	The homeowners are eating your
bill and all the expenses.	The homeowners are
eating everything.

MR. MCELROY:	That's right.
MS. WALSH:	And every special meeting we have.
MS. THOMSEN:	Every delay that we do cuts back
on the amount of interest that we're accruing
because we didn't get it started.
MS. WALSH:	That may be an offset.	That 1 s kind
of hard to say.	My question for Jason or you is,
because this litigation is dealing with the bond,
can the bond money be used to pay for the issuance
of the bond, i.e. our legal --
MR. SHOWE:	The costs issue of issuance aren't
going to be sufficient to cover those.	They weren't
contemplated as part of that.

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MR. MCCARTHY:	The other thing for consideration is there's three board members up for election, not this November, but the following November.	So that's a little bit of a problem.
MR. MCELROY:	You know, I think behind that is the question, how long is this going to take?
MS. THOMSEN:	Yeah.
MR. MCELROY:	How long is it going to take?
That depends on how hard they fight, what type -- if they want to engage in discovery.	I'm talking about the Plaintiffs.	It depends on the judge's calendar. I would think that we would have this thing Teed up for a motion for summary judgment that would be able to be considered in the first quarter of next year. Like I said, I do believe that you would have strong grounds on a motion for summary judgment.	At that point, I don't know if -- if a motion for summary judgment was entered against them, I don't know if they would appeal or not.	You know these Plaintiffs better than I do.	I don't know them at all.
MR. MCCARTHY:	My feeling and I don't know how the fellow board members feel, I think that Jack has described someone who is an expert.	I think we should use that person.	You can contact him and find out what his fees are going to be.	Then Jason

GE LEGAL	Orange Legal

can set up a special meeting, I believe, in order
for us to approve that.

MS. THOMSEN:	It might be
MS. WALSH:	We would have to do it in

September.	But we could probably issue a general
consensus.
MR. MCELROY:	Let me ask a question.	Brett,
maybe you would know this and Jason you might know.
I don't know the answer to this.	And that is
whether or not the resolution retaining us as
counsel, what authority does that give us to retain
experts?

MS. THOMSEN:	It certainly mentions them.
MS. WALSH:	In that resolution was the hours

and the billing and that kind of thing.

MR. OAKLEY:	Can't we just say sure?
MR. MCELROY:	Let's take a look and see.	You

know, the retention of experts, in a typical case,
that's something the attorneys handle.
MS. THOMSEN:	And it talked about bringing
outside people in that we -- that we might be --
have to pay for.

MS. WALSH:	Financially responsible for.
MR. MCELROY:	Let's let us take a closer look
at that.	If we believe that's within the purview of

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our retention, which I think there's a good argument it is, in any other case that I have, the retention of experts, the client says, that's your bailiwick. Go deal with it.
MS. WALSH:	Can we make a motion today to do that after the closed session to say that we are giving him the authority to --
MR. SHOWE:	I think maybe the better motion
would be to delegate authority to maybe Paul, the chair.	Is that -- to kind of give final approval on some of those once we see a proposal?
MR. RENTON:	I don't know what your procurement rules are accumulating.	But assuming that you're applying your procurement rules, they could give you authority up to a threshold to retain an expert.
And then you, Jason, could do so.	You could do that right after the close of this session as a board.
MS. WALSH:	This way we don't have another delay on anything.	We can just say, this is our intent, when we sign the agreement, that they would do that.
MR. SHOWE:	Do you have a ballpark maybe?
MR. MCELROY:	How much it's going to cost for Fishkind?	I have no idea.
MR. BEDWELL:	Jason, the motion will be just

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give Paul the authority to hire this guy at his
current prevailing rate.	I don't know what that is.
MS. THOMSEN:	Nice.
MR. OAKLEY:	I think that would work.
MR. SHOWE:	I think you may want to just
approve a not-to-exceed though just in case.	And we
can do a not-to-exceed.	If it's more, we can at
least initiate working with them.	Do a change order
and then amend the not-to-exceed.	I think we want
to give the authority to let him start working
immediately.	So if we could have the hearing in
November, then that gives us even more time to put
all the documents together that are necessary.
MR. BEDWELL:	You mentioned two areas at the
start, litigation statute, which we talked about,
then you said settlement.
MR. RENTON:	So they haven't reached out to us
to provide any settlement offers.	They have not.
And in discussions with their counsel, they have
been very tight-lipped about where they really see
this going.
MS. WALSH:	I think it's just to stop us.	I
don't think it 1 s

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MR. MCCARTHY: MR. MCELROY:

Maybe a delaying action. I'll certainly reach out and

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speak to Plaintiffs' counsel.	You know, in most
cases, there1 s no need to hide the ball with
opposing counsel.	You let them know this is what
we1 ve got.	This is why you're going to lose this
case.	Let's get this thing resolved before we cost
your clients a bunch more money and cost every
citizen in the district more money.
MR. BEDWELL:	Just tell them we are going all
the way.

MR. MCCARTHY:	I agree with that.
MR. OAKLEY:	I have a question about the suit

itself.	I read it over two or three times.	It
starts out with four people.	And I think the second
page intends up with one person.	Is that
MR. MCELROY:	There's a number of -- when I
listed the deficiencies to start, I didn't list --

MR. SHOWE:	Those are the highlights.
MS. WALSH:	The easy catches.
MR. OAKLEY:	Then they talk about $15,000.	So

I just --
MR. MCELROY:	There's certainly inconsistent
allegations within the complaint, a number of
inconsistencies.
MR. BEDWELL:	When I read the bullet points, I
picked the two you talked about, the cost benefit

Orange Legal

and apportioning the assessment.	I figured that
would be the two, the ones that we have to do.
MS. WALSH:	I think acreage alone between the
golf course and our recreation facilities.
MR. RENTON:	They can't challenge your ability
to issue the bonds.	The only thing they can
challenge is how you pick which residents are going
to pay and how much.	So do you pick residents who
are on the golf course to pay a much higher fee
versus residents that are further away?	Do you pick
commercial?	What they are challenging is your
commercial property.	Your commercial property, you
put a four-to-one ratio.	They're suggesting perhaps
that should be less.	Meaning, commercial property
owners shouldn't pay that because they're not
benefited.	That's what is not very well defined in
the complaint.
MR. MCELROY:	I wonder how many citizens in
your district realize these Plaintiffs, what they
are actually seeking is that they are seeking --
when you read that, they are seeking to have the
residents pay more money.
MR. BEDWELL:	I'm trying to put myself in the
judge's mind and saying, okay, 1992 or whatever year
they issued these bonds with this apportionment,

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just because we are remodeling, why would we change from the original appropriation methodology of paying for the bonds?	I don't know what this group thinks.	What would cause it to be different?
That's what I don 1 t understand.	I just don't understand it.	I mean, I know remodeling is different than building.	But that's still -- I'm trying to figure out --
MS. THOMSEN:	Water and all the water banks, the banks and the		they were throughout the whole community.	There is -- right there gives that justification that I don't have on this other part.
MR. BEDWELL:	The recreation bond was different than the water bond.
MS. THOMSEN:	That's true.
MR. BEDWELL:	They're using same methodology as the original recreation bond, right?
MR. SHOWE:	The original recreation bond, as well as the original fees for recreation that were initialized in 1992.
MS. THOMSEN:	That's where we've got more of a reaction.
MR. MCCARTHY:	Let me just read this.	A COD is
a special purposes unit of local government created under Florida law for the purpose of financing,

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constructing, operating and maintaining
community-wide infrastructures improvements and
service for benefit of properties within its
boundaries.	That 1 s the definition of a supervisor.
MR. MCELROY:	There 1 s no doubt you have the
authority to issue these bonds, no doubt whatsoever.
MS. WALSH:	We are under the threshold amount.
MR. MCELROY:	All right.	Any other questions?
MR. SHOWE:	Do you think if they approved a
not-to-exceed of $10,000 initially to get us
started, that might at least --
MR. MCELROY:	I don't know if that would get
you Fishkind.
MS. WALSH:	I was thinking more in the lines of
about 50.
MR. MCELROY:	Yes.
MR. SHOWE:	The board has a comfort level.	I'm
the treasurer.
MR. MCELROY:	I don't think it will cost that
much.	But I	think -- you know, I	do think it's
going to cost more than ten.
MR. MCCARTHY:	Any feelings?
MR. OAKLEY:	I like the idea of going in with a
smaller amount from 50 and then amending it if we

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MR. MCELROY:	Whatever you want to do.
MR. MCCARTHY:	We would have no knowledge of

what that figure is.

MR. MCELROY:	I don't.
MR. MCCARTHY:	The expert doesn't know what

this board is approving.
MR. MCELROY:	The expert doesn't know what this
board is asking of him yet.	Until we have that
discussion, I won't know what -- I don't know what
his number is going to be.	But I wouldn't make it
anything less than not to exceed 30.

MR. OAKLEY:	I had that same number.	Then we
can amend.
MR. SHOWE:	We can amend it if needed.	It's

enough to get him started.	If it's an extra fee to

16	attend the hearing and testify, then we can	look at	
17	that.		
18	MR. OAKLEY:	Or ask him what he can do	for 30.	
19	MR. SHOWE:	Twenty-five.		
20	MR. OAKLEY:	No.	Thirty.		
21	MR. MCCARTHY:	Everything sound good?	Let's	
22	use that figure.		
23	MR. SHOWE:	I think that will give the	board	
direction after the meeting.	Let them get started.
Do we need to schedule another shade session for

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that September board meeting, do you think?
MR. RENTON:	You need to request it.	So we can
go back to the public record if you want one.	I
don't know if we need	would you all -- I mean,
from our perspective, we would have just filed the
motion to dismiss, which we can share with you.	If
you have any questions individually, you can reach
out and talk to us individually.	We act as a
conduit or share any information about what each of
you feel.	But I think we can address any questions
without really another shade session at that time.
MR. BEDWELL:	How do we find out if the judge
dismisses?
MR. RENTON:	We will have a hearing.	And the
hearing date right now that the judge says you can
set your motion, we haven't even filed it, but if we
set it, it would be November 18.
MR. MCELROY:	That's if we get a motion to
dismiss filed sometime within the next few days.
MR. RENTON:	An example, on Monday I checked
and it was the end of October.	So between two days
later, now the judge lost two weeks in terms of
other motions and other cases being set.

MR. MCELROY:	We don't have enough judges.
MS. THOMSEN:	We have a meeting on November 19.

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1	MR. MCCARTHY:	I think we want to go forward	on	
2	it.	We don't want this.		
3	MR. SHOWE:	I just need		
4	MR. MCELROY:	I don't think we need another		
5	shade meeting.		
6	MR. BEDWELL:	Do we need to make a motion?		
7	MR. WALSH:	No.	We will just --		
8	MR. MCELROY:	Is there anything else left to		
9	discuss?	Okay.	We can close this shade session.		
10	(Proceedings concluded at 3:44 p.rn.)		
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Robert Dale, et al. vs Viera East Community Development District
JASON SHOWE	40

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Robert Dale, et. al. vs Viera East Community Development District
JASON SHOWE	41

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STATE OF FLORIDA
ss
COUNTY OF INDIAN RIVER

CERTIFICATE OF REPORTER

I, STACEY BARKLEY, Shorthand Reporter and Notary Public, State of Florida, certify that I was authorized to and did stenographically report the Proceedings; and the foregoing transcript, pages 3 through 39, is a true and accurate record of my stenographic notes.

I FURTHER CERTIFY that I am not a relative, employee, attorney or counsel of any of the parties, nor am I a relative or employee of any of the parties1 attorney or counsel connected with the action, nor am I financially interested in the action.
DATED this 8th day of September 2019.

20			 STACEY BARKLEY
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