Confidential	Meeting on 01/08/2020

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ORIGINAL CONFIDENTIAL

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VIERA EAST COMMUNITY DEVELOPMENT DISTRICT CLOSED ATTORNEY-CL IENT S ESSION ROBERT DALE v.	VIERA EAST CDD
**********

January 8, 2020

**********

MULTI-PURPOSE ROOM FAITH LUTHERAN CHURCH
5550 Faith Drive
Viera, Florida	32955

**********

Margaret Eddy Sheffield, Court Reporter Notary Public, State of Florida at Large

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MEETING ATTENDEES BOARD MEMBERS PRESENT

Paul McCarthy, Chair David Bedwell, Vice Chair
William "Billn Oakley, Secretary
Melinda Thomsen, Assistant Secretary Jo Walsh, Treasurer
**********
District Manager Jason Stowe Outside Counsel Jack C. McElroy

,,.--,.,.,

VIERA, FLORIDA; January 8, 2020
WHEREUPON:
MR. McCARTHY:	We are now going into the
attorney-client session to discuss litigation
titled Robert Dale versus Viera East Community
Development District.	Case number
2019-CA-041770.	It is estimated the
attorney-client session will last 30 minutes.
Those in the session will be Paul
McCarthy, Dave Bedwell, William Oakley, Jo
Walsh, Melinda Thomsen, Jason Showe and Jack
McElroy and a court reporter pursuant to Section

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286.011(8) of Florida Statutes.	All others shall be excluded.
Upon conclusion of the attorney-client
session we shall reopen the public hearing and I shall announce that termination of the
attorney-client session.
MR. SHOWE:	All right.	We are going into the shade meeting.
MR. McCARTHY:	We have to ask you to both leave now.
Thank you for your attendance, guys.
(Whereupon, members of the public left the meeting room and the closed attorney-client

Confidential

ROBERT DALE vs VIERA EAST COD
Meeting on 01/08/2020	Page4

session proceeded, as follows:)
MR, McCARTHY:	Okay,	The floor is yours,
Jack.
MR, McELROY:	Thank you,
Good afternoon, everyone.	As you know, I 1 m
Jack McElroy.	We 1 ve just entered into an
attorney-client session also known 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 litigation matters.
There are a few things that need to be
taken very seriously and make sure that you
understand.
Number one, what is said in this room has
to remain in this room.	Meaning that you cannot
disclose the discussions that are being had in
this private session with anyone not now in this
private session.
As to you board members, you 1 r e still
subject to the sunshine law and cannot discuss
with one another anything we're talking about
today once this meeting is concluded.
Number two, this private session must
remain on topic and be limited to our discussion

of settlement negotiations and litigation
strategy related to -- and related to litigation
expenditures.
You cannot take any formal action in this S	meeting.	Rather, once the session concludes,
any formal action will need to be taken when we
get back on the record.
This is an opportunity to communicate your
thoughts with one another and with your counsel
and for us to discuss with you strategy
questions and items as to how we handle this
litigation.
Please note that everything that's being
said is being taken down by	the court reporter
who 1 s sitting over there.	She 1 s transcribing
everything.	That document will ultimately be
made available at the conclusion of this
litigation to anyone that does a public records
request for it.
So while we 1 re in -- now in private session
please note that at some point what is said
could be read by parties not in this room
.including the Plaintiffs in the action.
Does anyone have any questions on those
--	25	points?

,.--...,			
	1		BOARD MEMBERS:	(No response.)	
	2		MR. McELROY:	All right.	
	3		All right.	So everyone was -- or everyone	
	4	but	David were -- were at the hearing yesterday.	
	5	You	saw what happened.	
	6		The -- the judge; even though he granted	
	7	the	motion to continue, even though he noted	

,	that the motion to continue was not timely as to
their deadline for responding to the motion for
summary judgment, he also indicated that he
didn't know what they were going to be able to
do in the 30 days that he gave them to be able
to challenge the decision.
Because as he said, his	he said his
hands were tied, that he didn 1 t have -- that his
discretion was limited, that there had to be
the decision of the -- of the board had to be
arbitrary in order for him to overturn it.
He did -- he did misspeak at one point
where he said he thought it was arbitrary.	But
it was very evident from everything he said
around, before that and after that, that he did
not think it was arbitrary, that he did think
that you had competent, substantial evidence to
support your decision.	

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So we can anticipate hopefully that on the on February 7th when the new hearing comes
around that -- that he will be ruling in our favor on the summary judgment.
But he did give them an opportunity even though they had missed their deadline to file, you know, responsive papers to the summary judgment, any controverting evidence that should have been filed at least two business days prior to the summary judgment hearing.
He gave them that opportunity.	And we can anticipate that they will file an affidavit in opposition.	They may -- they may obtain an expert witness.	Although I 1 m not -- since the case law is really clear that competing expert witnesses is irrelevant; that as long as you have competent, substantial evidence, that 1 s what matters.
I 1 m not sure why they would want to waste their money hiring an expert witness.	But he will have an affidavit.	And that affidavit we anticipate will attack some of the datapoints in
that was relied upon by Dr. Fishkind for his for his analysis as to the amount per square
footage.

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Now, I have talked to Dr. Fishkind about that.	And he	he did tell me that there were
14 properties that were in his -- his backup data, that he had as not -- not in the CDD that were actually in the CDD.	But he assures me that it makes no difference on the final numbers.
And, in fact, he had additional sale -­
sales data that came in after that's he -­ that1s now available that he's able to look at and -- and has been able to reach the conclusion that the dollar amount per square foot for the CDD and properties is actually even higher.	The difference is even higher than what he had before.
So what we will do since we know for a fact
based on -- I 1 m not sure how she pronounces it; DeVry or DeVree.	How does she pronounce her name?	Does anyone know?
BOARD MEMBERS:	(No response.)
MR. McELROY:		We know from her letter -­ MS. WALSH:	Uh-huh.
MR. McELROY:	(Cont'd.)	That -- that
everyone's seen what the
MS. WALSH:	And her spreadsheet.

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MR. McELROY:	And the spreadsheet.	What
the attack is going to be.
And so Dr. Fishkind has that, as well.	So
he will address those items in an affidavit we
will file in support of our motion for summary
judgment so that when they file those things we
will have something to -- to contest what
they're filing with.

And
just one

and in addition, that -- that is one thing that you relied upon in

reaching your decision.	There were other --
there were other pieces of evidence that support

- ..

the finding of the appropriate allocation that

you also relied upon in reaching your decision.
If any of those things is -- is good enough to
rely on then your decision should stand.	And
we'll certainly make that point with the judge.
Now, in the meantime, that1  s what1  s -- that
is what's happening with the Dale case.	We'll
have that hearing on -- on February 7th.	If the
judge does not grant summary judgment at that

22	time	then the next step in that case would be to	
23	take	it to trial.	
24		MS. WALSH:	Uh-huh.	
25		MR. McELROY:	And one of the things that	

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ROBERT DALE vs VIERA EAST CDD
Meeting  on 01/08/2020	Page 10

---,

we 1 re talking	that we 1 re considering doing
now is trying to get it on a trial docket right
now and try to get it on an expedited trial
docket.
And the judge did also indicate that at the
hearing; that even though his calendar may show
he's not available, at times he can work with us
on -- on availability.	And he knows the
importance of this.	He knows the	that this
case needs to be expedited.	Well aware of
that.
So we were happy -- I think we can say we
were happy with everything that the judge said
yesterday other than when he said that the
motion for continuance was granted.
Does anybody have -- before I go on to the
next part of the discussion on Dale does anybody
have any questions about what happened yesterday
and what we 1 r e doing next in the litigation?
MR. BEDWELL,	I just want to know what 1 s
going to happen February 7th.	Are you going to

be	present summary judgment first?
MR. McELROY,	Yes.
MR. BEDWELL,	Will -- does the Plaintiff be
able to put something and they can present it?

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ROBERT DALE vs VIERA EAST COD
Meeting  on 01/08/2020	Page 11

MR. McELROY:	Well, they have -- they have

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until -- their deadline has been reset -- MR. BEDWELL:	Yeah.
MR. MCELROY:	(Cont'd.)	To file contrary papers.
So they now have a deadline that is two
full business days prior to February 7th in which to file their papers.	We have to file anything -- anything else that we want to file in support which will be Dr. Fishkind's affidavit has to be filed at least 20 -- 20 days
not business days -­ MR. BEDWELL:	Yeah.
MR. MCELROY:	(Cont'd.)	Prior to the
hearing.
And we will -- we will file that affidavit.
We -- at the hearing itself.	Because it 1 s our motion we get to go first.
MR. BEDWELL:	Okay.
MR. McELROY:	He got to go first the other day because it was his motion to continue.
MS. WALSH:	To continue.
MR. McELROY:	So we'll go -- I will get to

and I will be there.
MR. BEDWELL:	Okay.

I  1 l l	argue it.

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Confidential	Meeting  on 01/08/2020	Page 12
MR. McELROY:	And I	and I'll get to go
first.	And then he gets to say something.	And
then I'll get to go last, too.
MR. BEDWELL:	Oh.
MR. McELROY:	Because this judge lets you

go last --

MS. WALSH:	Rebut.
MR.	MCELROY:	(Cont'd.)	If it1 s your
motion.
All right.	Any other questions about the
litigation -- I mean -- or strategy in the
litigation and what we're doing in that case or
what happened at the hearing?
MR. BEDWELL:	No.	I 1 m fine.
MS. WALSH:	Is -- would Fishkind be able to
update current information in a separate letter
in this?
MR. MCELROY:	He's going to do that in an
affidavit.
MS. WALSH:	Okay.
MR. McELROY:	That's going to be included
in the affidavit.	He's going to say yes there
were some -- you know, that it 1 s been pointed
out that there were homes in the CDD --
MS.	WALSH:	Discrepancies.	Right.
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Confidential	l\'Ieeting  on 01/08/2020	Page 13
MR. McELROY:	(Cont'd.)	That were -- were
indicated in my -- in my backup data were not in
the CDD.
That is correct.	But it doesn't make a
difference and here's why.
And in addition --
MS. WALSH:	Right.	So he'll be --

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that.

MR. McELROY:		(Cont'd.)		I've done this -­ MS. WALSH:	(Cont'd.)	Able to put all of

MR. McELROY:	I've updated the study and
the numbers are even better.
MS. WALSH:	Right.
MR. OAKLEY:	So it'll be filed 20 days

before?
MR. McELROY:	That'll be filed at least 20
days before.
Okay?	And then if there are no further
questions about that litigation
MR. McCARTHY:	I	do.
In terms of the summary judgment will the
judge rule in favor of that potentially at this
7th meeting?
MR. MCELROY:	I think that the chances are
pretty good based on what he said.
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MS. WALSH:	Uh-huh.
MR. McELROY:	I think if he	you know,

what he has to find in order not to grant the
summary judgment, he has to find that there is a
material issue of fact as to whether or not your
decision was -- was based on an arbitrary
basis.
If he finds that there 1 s any substantial,
competent evidence in the record that you could
have relied upon to reach your decision then I
believe he 1 s going to grant your summary
judgment.
That 1 s what he indicated -- that 1 s , you
know, what he said.	He said:	My hands are

tied.
matter.

I don 1 t have much discretion in this

He understood that that's right.	That's
what the Florida Supreme Court said	has said
time after time after time.	And he understands
that.
Now, granted, the first thing I said was
material issue of	fact.	So, you know, if they
throw a bunch of stuff up on the wall and he
thinks:	Okay.	I -- I still tend to agree that
the -- the board had substantial, competent

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evidence to support their decision but they 1 ve
raised enough to raise a material issue of fact,
this case needs to go to trial.
And if it goes to trial it'll be a -- it'll
be a battle of experts.	But you still -- if
it 1 s a battle of experts you still according to
the Florida Supreme Court should win.
So that 1 s where we -- that 1 s where we
stand.	But we want to get it, you know, done as
expeditiously as possible so you can get these
bonds issued and all the -- you know, while the
bond market is still relatively low.
MR. McCARTHY:	So if the judge rules in
favor of the summary judgment what alternative
would they have to
MR. McELROY:	They could file an appeal.

MR. McCARTHY:	Okay.	File an appeal.
MR. McELROY:	They file an appeal with the

Fifth DCA.
MR. McCARTHY:	Explain that for us, please.
MR. McELROY:	All right.	So they have --

they -- they will have 30 days in which to file
a notice of appeal.
MS. WALSH:	Uh-huh.
MR. McELROY:	And they will then -- if --

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one -- if they

once they file an appeal we 1 ll

we	will try to have that appeal put on a
on a fast-track basis.	But then they could
they can -- you know, we have a briefing
schedule.	And you have -- after that, you know,
that briefing schedule you could have oral
argument.
And then the Court can take a while to
enter its decision.	Or the Court could enter,
you know, what 1 s known as a per curiam affirmed
which is -- which they can do without -- and
they could not grant oral argument if they

wanted to and they can do a PCA, per curiam
affirmed, that they don 1 t even issue an opinion.
They issue those pretty quickly.
So if they file an appeal with the Fifth

DCA it's going to be	I would say it would be
delayed at least another five or six months.
Could be delayed as long as a year.
MR. BEDWELL:	Where is the appeals court
at?
MR. McELROY:	Daytona.
MR. BEDWELL:	Daytona?
MR. McELROY:	Yes.
MR. OAKLEY:	Jack, one thing that - -	from

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all of the reading that I've gotten, especially this last one from Mr. Dale, he's talking about this is going to take a long time.
And I can see this running right into the election.	And that 1 s their ultimate goal.
MS. WALSH:	That 1  s what I think, too.
MR. McELROY:	Okay.	Well
MR. OAKLEY:	And then they got three board members that say:		Look, we 1 re going to just close the case.
MR. McELROY:	If -- if they have ...
I 1 m hesitating here because I want to make sure that I don't go off key on what we can talk about in this session as far as litigation.
MR. OAKLEY:	Okay.
MR. McELROY:	I think that's still related to litigation as to timing.
If that's their -- if that's their goal is to delay it to the next election, if they want to file an appeal, they can file an appeal and they can delay -- they -- the election is when?
November?
MR. OAKLEY:	Uh-huh.
MR. McELROY:	All right.	They could delay it possibly to the election if they filed an

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appeal.
It's also possible that we could get a
quick resolution of that appeal.
MR. OAKLEY:	One other question that
somewhat directly relates to this but just would
like to know.
If we are ruled against
MR. McELROY:	Yes.
MR. OAKLEY:	(Cont'd.)	Does that mean the
CDD is not going to any longer issue bonds?
MR. McELROY:	No.	It doesn1 t mean that.
MR. OAKLEY:	You'd just have to have a real
good reason why.
MR. MCELROY:	Well, I -- I think you do
have a real good reason why.
MR. OAKLEY:	(Speaking simultaneously.)
MR. McELROY:	And if you -- and if he -- if
he rules against you we can appeal.
MR. OAKLEY:	Okay.
MR. McELROY:	And -- and I think that you
-- I -- I feel comfortable that you have
substantial, competent evidence to support your
decision.	So I believe that you -- you would
prevail in that appeal.
I mean if he rules against you -- let me
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make sure I'm clear on this.

If he rules

against you on the summary judgment, you can't
you don 1 t get	to appeal that.
Your -- your next step at that point is to
take the case to trial.	If he rules against you

at a trial then you can appeal it.

If he rules

against them -- because if he rules against  you
at the summary judgment stage the case is not

over.	It still goes to trial.

If he rules in

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our favor at the summary judgment stage, the case is over.	So they can then appeal it.
MR. OAKLEY:	Got it. MS. THOMSEN:		Can
MR. OAKLEY:	Now, if they -- if they appeal if they appeal it does it cost them filing
fees and all of that?
MR. McELROY:	They'd have to pay a filing fee.	They 1 d have to pay their attorney to write a brief.
We can -- we could seek, you know, attorney 1  s fees.	We can say the appeal is

frivolous.	And we could try

see how	based

on what the judge has to say we could attempt to 24
25	MR. OAKLEY:	Seek our attorney's fees?

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MR. MCELROY:	Yes.	Claim -- claim for your
attorney1  s fees in that -- in that appeal.	I
don 1 t know how -- we'd have to see what the
judge's judgment looks like and -- and what they
say on their appeal before we have an idea of
what your chances are for recovery of appellate
attorney 1 s fees.
But you have to basically be saying that
their  appeal was frivolous.	And that 1 s a pretty
high standard to make.
MR. McCARTHY:	Go ahead, Melinda.
MS. THOMSEN:	No.	That 1 s okay.
MR. McCARTHY:	David?
MR. BEDWELL:	Nothing.
MR. McCARTHY:	So potentially this could go
on for seven months.

MR. MCELROY:
or longer.

It could go on seven months

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MR. McCARTHY:	Okay.
MR. McELROY:	There is that -- certainly that potential.
MR. McCARTHY:	Okay.
MR. McELROY:	The next thing I want to talk about is the possibility of settling the case and whether there's any appetite for that and

what we would -- what that would look like;
settlement	you know, settlement negotiations
with them.

One thing that, you know, is
possibility -- I don 1 t think you can

is a
I don't

think that you can change
change the apportionment.

you can offer to In fact, I know you

can't offer to do that because that would
require a whole new public hearing and other
evidence as to what proper apportionment was.
And you already have evidence as to what
the proper apportionment is.	So that would open
a big can of worms.	And that 1 s really not --
that1 s really not an option to you.
The only really -- the option that I can
see open to you on settlement negotiations is an
option to decrease the amount of the bond, the
bonds that are being sold and thereby decrease
the amount that you 1 re -- you're going to be
funding these improvements.
I know that the big line item with -- I 1 v e
seen -- it looks like the big -- one of the big,
hot items is -- or the hottest item is the
amount that 1 s being spent on the clubhouse.
And so that1 s a, you know, possible area of

Confidential

ROBERT DALE Ys VIERA EAST CDD
Meeting  on 01/08/2020	Page 22

compromise where you could go in and you can say
instead of spending 2.9 on	you know, just as
an example.
Instead of spending 2.9 on the clubhouse
we'll agree to only spend a million on the
clubhouse.	And the 1.9; we won't seek that
additional funding.	And we won 1 t -- we won't
seek it under this 1992 bond validation.	We
won1  t seek any -- any further funding under this
1992 validation.
Because -- and you 1 r e not giving up
anything really on that.	Because the fact of

•"'"',

the matter is you -- it's my understanding that

you really	there 1 s not a bond market to go to
to sell, you know, something less than a couple
of million dollars in bonds.

MS. WALSH:	Right.
MR. McCARTHY:	We've had conversations with

our general manager individually regarding
potential settlements.
Is this a time to discuss this or

MR. STOWE:	I think it relates to
MR. McELROY:	Yes.
MR. STOWE:	To directly what --
MR. McELROY:	It -- it relates to -- it

relates to settlement.	So it1 s something
certainly you can discuss at this time.
Do you want to -- do you want me to reach
out to the Plaintiff -- and I can1  t talk about
the other case.	But I'm going to talk about
that next in the next shade session.
I don't know with these Plaintiffs if
that1 s going to resolve it.	But even if it
doesn't just	and we'll wait and we'll talk
about it in more detail in the next one.
If it settles it with the other Plaintiff
then, you know, like I said, I think you got a
-- I think you got a pretty good shot at -- at

summary judgment in this case.
So even if you don 1 t settle this at least
if you get rid of the other -- get rid of the
other case.
MS. WALSH:	Uh-huh.
MR. McELROY:	And you 1 r e only dealing with
this case.	And you win on summary judgment and
the Court says there1 s no material issue of fact
that you have a -- you know, that you have
substantial, competent evidence to support your
decision and they appeal that, then I do -- I do
think that I -- I could make a credible claim to

entitlement to attorney1 s fees.
We could send a 57.105 letter saying it's
been determined by the trial court that there is
no material issue of fact.	We believe that any
appeal that you 1 re doing is merely for the
purpose of delay and that your -- your -- the
appellate issues you 1 ve raised are frivolous
and, therefore, we demand that you withdraw it
or -- or, you know, face the possibility of
having to pay the attorney's fees that are
incurred.
MR. McCARTHY:	All right.	So at this

MR. McELROY:	Sometimes that scares
people.
MS. WALSH:	Uh-huh.
MR. McELROY:	That	you know, they
understand -- sometimes

MR. BEDWELL:	Yeah.
MR. MCELROY:	(Cont'd.)
Hey, if I got -- if -- if r 1 m

They understand:
if I 1 m wrong on

this and I 1 ve got to pay to play that 1 s going to
be it.
MR. BEDWELL:	Because the Plaintiff's got
to play, not the lawyer.
MR. McELROY:	That's right.	Well, no.

It's both.
MR. BEDWELL:	Both.	Okay.
MR. McELROY:	It's both.	Both the
plaintiffs and the lawyer in a 57.105 motion.
MR. BEDWELL:	Okay.

MR. McCARTHY:	All right.
with this.

I need some help

You know, I 1 ve discussed it with the
general manager, every other board member.
Would it be appropriate to go around the room
and give Jack an idea of what

MR. STOWE:	Yeah.

I think -- I think

that 1 s kind of what Jack is seeking at this
stage.
MR. McCARTHY:	Okay.

MR. STOWE:

Is some direction or at least

some consensus from the board -- if that 1 s the
appropriate term -- of --
MR. McELROY:	Yeah.

MR. STOWE: 21

(Cont'd.)	If this is an option

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MR. McCARTHY:	Let me -- let me -- let me
tell you how this works, by the way, before you
-- so you can -- so you can know how this is going to play out.

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If I reach out and -- to them and say: Hey, do you want  to discuss settlement?	And here 1 s -- I can 1 t settle with you on the apportionment methodology.	Can't do that.
That's not within the realm of possibility.
I could settle with you on the amount -­ the total amount for the bonds that are going to be issued because -- and I can, you know, settle with you on the -- on that we're not going to -­ we're going to only put X amount into the clubhouse rather than Y amount.
I can -- we can discuss a settlement along those -- those grounds.	Then if we reach an agreement -- if I reach an agreement with the attorney on the other side -- and we can do this one way.
I can do it by way of I can sit down with them and have this discussion.	I can have a telephone conference with the attorney having that discussion.	We could have a member of the board come with me to sit down with them and the Plaintiffs.	Just one member of the board.	To sit down with the Plaintiffs and discuss the settlement.
We could have a mediation where there 1 s a

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mediator present.	There, you know, it goes the
gambit of those.	Whatever happens, though, once
that settlement is reached you then have to have
another hearing to approve that settlement.
It has to be -- you know, the board has to
vote on that settlement.	So you 1 l l have
whatever
MR. OAKLEY:	You mean an open hearing like
we've had with all the people?
MR. McELROY:	Well, you can -- it doesn't
have to be -- I don 1 t believe it has to be a
public hearing --

MR. OAKLEY:	Okay.
MR. McELROY:	(Cont'd.)

If you reach that

settlement.
MR. STOWE:	But it has to be in a public
meeting.
You have to have a --
Yeah.	That's fine.
MR. MCELROY:	So you'll have a - -
MS. THOMSEN:	One of our - -
MR. STOWE:	Like a regular.
MR. McELROY:	Yes.
MS. THOMSEN:	Okay.
MR. MCELROY:	So then we 1 ll have - -	we

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would have another hearing which you would have
-- you would -- you would vote on we 1 re going to
settle and we 1 re going to settle on these terms.
So you have -- you're not -- whatever you
tell me today that 1 s not -- you're not stuck
with that.	I just need to know that I have
authority to go talk to them.	And I need to
have an idea of	how much you 1 re	willing to knock
off say the clubhouse, for instance.

MR. McCARTHY:	Okay.	I  1 l l	start first.

Based on the conversations I've had with
our general manager, we are -- I am willing to
reduce the debt on the clubhouse by	two million
dollars.

MR. McELROY:	Okay.

MR. McCARTHY:	I believe it was 2-7, Jason?

MR. McELROY:	I think it was 2-9.
MR. STOWE:	It's 2-9.
MS. THOMSEN:	So down to 900,000?
MR. McCARTHY:	Down to 900,000.
And let 1 s go around the room.
David?
MR. BEDWELL:	I 1 m not reducing anything
because I don't think they'll settle.	I don't
think two million's going to make a difference.

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I don 1 t know what their bottom line is.
Wouldn't know until you got -- this would be
done after the summary judgment?

MR. McELROY:
would be done - -
MR. BEDWELL:
MR. McELROY:
judgment.
MR. BEDWELL: MR. McELROY:

No.	This would be -- this

Before -­
(Cont I  d . )	Before the summary

Okay
This would be done before the

summary - -
MS. THOMSEN:	In the next few weeks.
MR. McELROY:	Now, keep in mind, too, that,
you know, if it 1 s in mediation, it 1 s
confidential, your settlement negotiations, you
can maintain confidentiality of your settlement
negotiations if you want.
But you can also -- you can also let people
know if you want to make a -- if I make a
settlement offer there's nothing to stop you
from letting people know what that settlement
offer is.

MR. BEDWELL:	Yeah.	Okay.

I just - - I

just -- I just got a feeling that 2.9 million or
two is not going to make them happy based on the

reading of E-mails and --

MR. McELROY:	Uh-huh.
MR. BEDWELL:	I Cont'd.)

And this -- this

how it gets so vocal.	Because their
assessment was going to go down.
So I assume they want it to go to zero.
That's what I think.	I mean that's the way I
read it.

MR. McELROY:	But
MR. BEDWELL:	But if you guys --
I1ll go along if you guys -- two million
down to 900,000.	That's fine.	But I don't
think --
MR. McCARTHY:	Melinda, you're next.
MS. THOMSEN:	I would agree with what Paul

said.	900, a million.

I don 1 t	-- it doesn 1 t

matter to me.
I do think the clubhouse needs
improvements.	But I -- I totally agree that
that has been a stumbling block on a lot of
people who seem reasonable.	They aren 1 t	so
we 1 r e chopping off the negativity a little bit
with this.
It -- it 1 s a positive -- i t 1 s a positive
step I believe.	And the fact is, though, that

when you go to them we 1 re not -- we don1 t hurt
ourselves by doing this or by offering this.
MR. McELROY:	No.
MS. THOMSEN:	It -- it's -- it's just a
trial run we 1 re trying to do.
MR. McELROY:	Yeah.
MS. THOMSEN:	And if it doesn 1 t get done we
just go back to the normal
MR. BEDWELL:	Okay.

MS. THOMSEN:

(Cont'd.)

Process.	The

affidavits still have to be in there.
MR. McELROY:	That's right.
MS. THOMSEN:	And you're planning on
getting that --
MR. McELROY:	Yes.

MS. THOMSEN:
days.

(Cont'd.)

Within the 20

And so -- so that ... you -- but you could
be processing this within the -- and if they did
say yes then do we go back to summary judgment 21
22	MR. McELROY:	No.

23
24	date?

MS. THOMSEN:

(Cont'd.)

On that trial

,--..,	25

MR. McELROY:	No.

If they say yes, if we reach an agreement
and you vote and you -- you approve the
agreement, then no, that case will -- that case
will be settled.
Now, just so you know and - - and everybody
knows, my	my philosophy on settlement
negotiations is that a case is never over 'til
it 1  s over.	I will -- I go full steam ahead on
litigation.	Even -- I can -- I can have
settlement negotiations on the side.

-

MS. THOMSEN:	Yeah.
MR. McELROY:	But I go full speed ahead
with litigation until that case is settled.
MR. BEDWELL:	Okay.	That's good.
MR. McCARTHY:	Bill.
MR. OAKLEY:	So since you're our lawyer
what do you feel?	Which way would be to the
best interests of the members of the CDD?
MR. McELROY:	You have -- the best
interests of the members of the CDD in my
opinion is to resolve litigation if you can
resolve it.
MR. OAKLEY:	Okay.
MR. McELROY:	On a reasonable basis.
Because, as you know, I 1 m not cheap.	And,

Confidential

Meeting  on 01/08/2020	Page 33

you know, litigation
MR. OAKLEY,	We know.
MR. McELROY:	Litigation goes on.	And it1 s
it's	it 1 s an expensive process.
So if you can -- if you can resolve it on a
reasonable basis and cut off that litigation
expenditure that's in the best interests of the
community.
And the same goes for the Plaintiffs.	If
they can	if they can cut off litigation and
settle on a reasonable basis that -- it 1 s --
that's the best thing for the members of the
community.	And they 1 r e members of the
community.
And they're -- you know, they think they
have all this public support.	I'm curious as to
how much public support they would have if
people know you made a reasonable settlement
offer and they said no.
MS. THOMSEN,	I like that.
MR. OAKLEY,	Just to let the other board
members know, I've been working on -- I 1 ve shown
the drawings to Tim.
I 1 ve got the whole clubhouse redesigned
with the existing walls, increasing the size of

Confidential

Meeting  on 01/08/2020	Page 34

the kitchen, leaving the pro shop the same size
it is.	Given Tim the increase in the offices.
And I'm in favor of trying to litigate.
You know, trying to settle for the -- for the
900,000.	Because I think you could probably do
that design for 900,000.
And I will share those drawings with the
board members when Jason feels that it 1 s
appropriate.
MR. McCARTHY:	Jo?
MS. WALSH:	Well, I feel that we have no
problem as far as getting our case through on
the 7th.
But if they do appeal then can we make an
offer after that?
MR. McELROY:	Yes.	I mean you --
MS. WALSH:	Okay.
MR. McELROY:	You could wait - - you could
wait and make the offer then.
MS. WALSH:	I'm just - -
MR. MCELROY:	You can make a different
offer.	You can always -- you can make

settlement offers at any time.
MS. WALSH:	I	mean I	don't know.	I mean I
will go along with the rest of the board if they

Confidential

Meeting  on 01/0812020	Page 35

want to bring it down -- bring down the
clubhouse from 2.9	to .9.
I just	I just hate to limit ourselves.
Because you never know what's going to come up
when - -	when you're in the middle of a
construction project.
So I think we're cutting ourselves a little
short.	But if it1 s the number that you think
would be the most appetizing
MR. McELROY,	Well --
MS. WALSH,	(Cont'd.)	If you had to go
into a negotiation, then I -- I would follow
suit with it.
MR. MCELROY,	Okay.	And I don't have to
and I	--	I 1 m not going to start off with that
number.
Okay?
MR. McCARTHY:	So based on --
MR. MCELROY,	And the other thing you need

.,.,..,.,,

to keep -- one other thing you need to keep in
mind, though, is as it involves the attorney 1  s
fees that the attorney 1 s fees; you need to have
room to have those attorney's fees paid through
this bond issuance, too.
Because my understanding is you don't have

Confidential	Meeting  on 01/08/2020	Page 36

it in your budget otherwise.
MS. WALSH:	Uh-huh.
MR. McELROY:	Right?
MR. STOWE:	We would have to make some

severe cuts.
MR. McELROY:	So you need to -- you need to
keep that in mind that you need to have room for
that.
MR. McCARTHY:	All right.	So basically the
board is giving you the authority to make a
decision when you 1 r e going to do it and -- for
the two million dollars.
MR. McELROY:	Okay.	Up to two million.
MR. BEDWELL:	Up to two million.
MR. OAKLEY:	Does this negotiations that
you're having with the Plaintiff; are those all
confidential?
MR. McELROY:	There is
MR. OAKLEY:	Or are they going to be

broadcast by a next-door neighbor to:	Hey,
we've got them to the table.	Blah, blah, blah.
MR. McELROY:	Yeah.	That -- I think you
can anticipate they 1 re going to -- you 1 re going
to -- they 1 re going to broadcast this.	You can
certainly anticipate that.

Confidential

:Meeting  on 01/08/2020	Page 37

- -)

MS. WALSH:	And
MS. THOMSEN:	And that could be on our

benefit --
MR. McELROY:	That's right.
MS. THOMSEN:	(Cont'd.)	As well.
MR. McELROY:	That's right.
MS. THOMSEN:	It means that we 1  re
listening.
MR. MCELROY:	Yeah.
MS. THOMSEN:	And that we are at least

1trying to make an effort.

If we 1 r e off the wall

.

on the	the clubhouse is their bugaboo.

MR. MCELROY:	Yes.

I think that -- I think

that can play to your advantage.
Now, as far as the confidentiality,
certainly settlement negotiations as far as
they1 re related to litigation are confidential.
They 1 re not -- they 1 re not relevant.
The law on that is	clear; that you can 1 t
you can't -- and if -- if you 1 re involved in
litigation you can 1 t go into court and say to
the judge:	Well, I must be right because they
offered me to cut this by a million dollars or
one million five or two million.	So I must be
right.

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Confidential

Meeting  on 01/08/2020	Page 38

Then the judge will look at them and say:
You know better than that.	That 1 s not -- that 1 s
not admissible evidence.	And the judge can
sanction them for saying that since he's the
trier of fact.	But he certainly is not -- this
judge would not -- that wouldn 1 t work to their

7

MS. WALSH:	Uh-uh.
MR. McELROY:	That would be a big mistake

if they did that
MS. WALSH:	Yeah.

MR. MCELROY:

(Cont'd. I	With this Court.

MR. BEDWELL:	How many Plaintiffs were
before?

MR. MCELROY:
MR. BEDWELL:

Four Plaintiffs.
So he -- he'd have to get

agreement of the four Plaintiffs.
MR. McELROY:	He'd have to get agreement
from the four Plaintiffs.
MR. BEDWELL:	Okay.
MR. OAKLEY:	I kind of agree with David on
one of the issues.	I think their biggest
bugaboo was the apportionment issue, the way the
tax	or was -- the bonds
I mean I think that1 s their

BOARD MEMBERS:
MR. McELROY:
MR. BEDWELL:
MS. THOMSEN:
clear.
MR. BEDWELL:
MR. McELROY:
MS. THOMSEN:
MR. BEDWELL:
MR. McELROY:

(Speaking simultaneously.) Yes.
I mean they're so	vehement.
And we need to make that

You know? Yeah.
You got to make that clear.
Go see.	I hope you're right. Well, you know, I -- I will

say this, too, because it relates to litigation.
I saw in their -- I saw in their summary
the Plaintiff put on social media as to what
happened at that hearing.	It was	it was
pretty misleading.
MS. WALSH:	I	got the impression the judge
was not impressed with the
MR. MCELROY:	Yeah.
MS. WALSH:	(Cont'd.)	Gentleman.
MR. McELROY:	It was - -	it was - -	was a
very misleading summary of what happened in that
hearing.
MS. WALSH:	Okay.
MR. McELROY:	It indicated that -- it also

indicated that we had not -- that he gave them a

motion for continuance because we had not given
them enough notice.
MR. McCARTHY:	Right.
MR. MCELROY:	And that is not why he gave

them the continuance.
MR. BEDWELL:	Well, maybe the judge will
read it.
MR. McELROY:	Yeah.
MS. THOMSEN:	I don't know if they do that.
MR. McELROY:	All right.	So that's --
anything else?	I	have
MS. WALSH:	Would they	would they get,
also in this settlement are we going to give

14	them the	15 grand that they 1 re asking for?	
15	MR.	McELROY:	No.	
16	MS.	WALSH:	Okay.	
17	MR.	McELROY:	No.	
18	MS.	WALSH:	Okay.	
19	MR.	McELROY:	Are there any other questions	
20	regarding	--		
21	MR.	BEDWELL:	No.	
22	MR.	McELROY:	(Cont'd.)	The settlement of	
23	the Dale	case?		
24	MS.	THOMSEN:	Remind me what you said	
25	earlier.			

_,...,_
.	"-)

At what point can we demand attorney 1 s
fees?
MR. McELROY:	Well, we thought about doing
it in the -- in the case in chief right here.
We	we reached the decision as the attorneys
that this was not -- we weren1 t at that point
yet.
That if we got summary judgment in this
case and they filed an appeal then we may be at
that point where we send what 1 s known as a
Section 57.105 letter that says your -- it has
now been determined there are no material issues
of fact, therefore, any appeal that you 1 r e
filing on this we believe is frivolous.
And I can tell you that your chances of
getting those attorney 1 s fees are still pretty
slim.
MS. THOMSEN:	Uh-huh.
MR. McELROY:	It's tough to get 57.105 fees
for an appeal.	Very -- it 1 s very tough.
MR. McELROY:	Okay?
But you can -- you can demand them.	And
it 1 s something that has to go into their
calculation of whether or not they 1 re going to

-	25

continue with the case.

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Because if they -- if you're thinking: Okay.	Well, they can run up, you know, another hundred grand in attorney1 s fees in the appeal then do I want to take a chance of being on the hook for that.
Maybe not.
MS. THOMSEN:	Well, if they get us mad enough.
MR. BEDWELL:	Okay.
MS. THOMSEN:	Really encouraged to go ahead.	Offer it.
MR. MCELROY:	Yes.
Okay. Anything else on the Dale case? MR. McCARTHY: No. Onto the next one. MR. McELROY: All right.
Well, we need to --
MR. SHOWE:	We're closing the shade session.
(Whereupon, the attorney-client session was
concluded.)

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I, Margaret Eddy Sheffield, Court Reporter, do
hereby certify that I was authorized to and did report
the foregoing proceedings, and that pages 3 through 42
is a true and correct record of my stenographic notes.

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10	Dated this 17th day of January, 2020.

,-,,

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Margaret Eddy Sheffield, Court Reporter
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