⚖️ Legal Update XV: Activity in Borer vs. the Club Lawsuit

January 16, 2021

This update focuses on activity over the last six days in the Small Claims lawsuit by former member Steven Borer against the Club, a suit intended to obtain the outstanding refund of the $1,700 Membership Fee due when Steven withdrew from the Club over two years ago. There was also activity in the Club’s other lawsuit where they are suing former Treasurer Carl L. Kennedy, II to obtain records the Club alleges Kennedy has and must turn over to them. We
have “mirrored” both sets of case files from the public docket onto our Litigation case pages (Borer v. the Club, and Club v. Kennedy).

Steven Borer v. Pompano Senior Squadron Flying Club, Inc

On Monday, January 11, 2021, a few minutes after 10:00 AM, a “2-Hour Trial/Evidentiary Hearing” began. This hearing was scheduled on December 4, 2020 based upon a filing from Club attorney Edward Holodak. In attendance at the hearing, held via Zoom, were the parties, a couple of witnesses, the Club’s attorney, a couple of Club officers, and a handful of observers. As of this writing, we are unaware of any decision(s) by the Judge in the case, but it seems like a decision is probably imminent. We will not opine on the nature of the pending decision, but will report our thoughts on the conduct of the hearing itself and the events that followed because we believe these are facts independent of any decision by the Judge.

In this newsletter, we observe that the Club’s attorney continues to play unnecessary games with the trial process. We examine and substantiate the post-hearing claims made by Borer that the Club’s attorney made willful misrepresentation of facts to the Judge. We document the fallacy in the Club’s claims that they could not provide the bank records that Borer sought because the Club did not have them (they’ve had the records since at least October 2020). We discuss the relevance of a May 8, 2020 E-Mail from Attorney Wendy Hausmann that Steven Borer attached to his “Response to Defendant’s Trial Memorandum” he filed on January 12, 2021. We also express our confusion about the Club’s decision to attach an 8-page print of our November 25, 2020 newsletter to a post-trial filing by the Club, without any stated rationale as to relevance or even mention in the “cover letter” in their filing. Finally, we expose and explore one of the most glaring misstatements of fact from Club President Greg Gilhooly when he testified under oath that none of the amendments to the Operational Rules in 2020 had any relevance to the case.

Selective Sequestration and Fancy Lawyer Tricks:
In his filing on December 30, 2020, Steven Borer identified Michael Borer (Steven’s father) and Carl Kennedy (former Club Treasurer) as their intended witnesses. On January 4, 2021, Edward Holodak, the Club’s lawyer, identified Greg Gilhooly (Club President) and, surprisingly, Wendy Hausmann (Carl Kennedy’s lawyer friend) as their witnesses. The trial began by the Judge granting Mr. Holodak’s request to “invoke of the rule.”

What this means is that witnesses for both parties must be removed from the trial-in-progress until they are called upon to testify. The idea is that witnesses won’t be influenced by the testimony of other witnesses. Invocation of the rule is fairly common in more serious trials but uncommon in Small Claims Court, and surely even lesser common when lawyers are not involved since most lay people have no idea even what “the rule” is.

The manner in which the rule was invoked in this case reflects nothing less than a lawyer flexing unnecessary legal technicalities against a pro se litigant. As a result of Mr. Holodak invoking the rule, Michael Borer was electronically removed to an empty virtual “breakout room.” Mr. Kennedy (Steven Borer’s second witness) was apparently not present. Although the Judge did not explain the apparent discrimination, we know that the reason the Club’s named witness, Greg Gilhooly, was allowed to remain throughout the trial was because he is considered the Club’s “corporate representative.” For reasons unknown, Mr. Holodak did not require Ms. Hausmann to leave the hearing despite his invocation of the rule, and so she remained present throughout the entire trial.

Thus, the only practical effect of Mr. Holodak’s action was to remove Michael Borer from the trial for only for the opening remarks (not witness testimony). Each party spent just a few minutes making their opening remarks and then Steven Borer asked that his father, Michael Borer, be retrieved from the “breakout room” so he could testify. Steven asked his father a few questions, mostly about issues that are already a matter of record from filings in the case, and thereafter Michael Borer was allowed to remain at the hearing. No explanation was ever given as to why the Club identified Ms. Hausmann as a witness, and the Club’s lawyer never called upon her. Consistent with his established pattern of focusing on form over substance, it seems the whole “invoke the rule” thing was just a power play. Mr. Holodak wanted to distract his young pro se opponent with a flash of power, flexing his mighty legal prowess for all to see, no matter how petty and unnecessary that exercise was.

Therefore, boiled down to its barest practical effect at this trial, Mr. Holodak’s invocation of the rule and attempted application of other so-called “legal rights” were simply mean-spirited gamesmanship that served no meaningful purpose other than wasting time, except perhaps also illustrating that the Club feels it needs to employ technicalities and concealment for any hope of prevailing.
Willful Misrepresentation by an Officer of the Court (the Club’s Attorney, Edward F. Holodak, Esq.)
Then there was more Club lawyer technicality and concealment fireworks during the trial, this time involving the Club’s refusal to provide records as requested. What follows is an excerpt from the trial transcript where Mr. Holodak falsely and repeatedly asserted that the Club did not have the records that Steven Borer had asked the Club to produce at trial. Mr. Holodak also went one step further, falsely and repeatedly asserting that the Club had subpoenaed these records from their own bank.

The Court: What about the bank records for 2018 and 2019.
Mr. Holodak: Those are all part of the litigation, Your Honor, that we are attempting to – before Judge [Haimes].
The Court: All right. Isn’t that something you can get from the bank?
Mr. Holodak: We have subpoenaed them, Judge. Again, the litigation is ongoing in front of Judge [Haimes].
The Court: You’ve subpoenaed them from the bank?
Mr. Holodak: Yes, ma’am, we subpoenaed them from Mr. Kennedy and from the bank.
The Court: And the bank has not responded?
Mr. Holodak: Not as of yet, Your Honor.
The Court: And when did you subpoena them?
Mr. Holodak: Judge, off the top of my head, I don’t know.
The Court: Okay. I would be interested in knowing, Counsel. And I think that it would be [probative] on both ends. The testimony from Mr. Gilhooly was that some members received their refunds in 2018 and some members did not. I want to know what the criteria was, why were select members given their refunds and select members not given their refunds. That’s important for me to know and it’s going to make a very big difference in what my ruling is going to be.
Mr. Holodak: Understood.
The Court: So I want you guys to provide that information.

With respect to Mr. Holodak’s representation to the Judge that the Club had subpoenaed records from their own bank, it all turned out to be untrue. The other problem for Mr. Holodak (and Mr. Gilhooly, as he was present when the Club’s lawyer made these false representations and made no effort to correct them) is that contradictory evidence is readily available that refutes their claims. The available evidence leads to a reasonable conclusion the Club’s statements on this point were all smoke and mirrors to conceal the truth from the Judge and, as such, represent nothing less than willful misrepresentation. The historical record supporting this conclusion is voluminous and includes, but is not limited to:
- On Monday, January 11, 2020 at 5:11:54 PM, the Club’s attorney, Edward Holodak, made a single filing in the Borer docket that included two documents. This filing was supposed to be responsive to the Judge’s request for Board meeting minutes or other documents reflecting establishment of Club policies terminating the refund of Membership Fees of former members. In fact, not only was this filing insufficient to be responsive to the Judge’s request, much of the documents the Club filed actually support Steven Borer’s lawsuit.
- The next morning, Tuesday, January 12, 2020 at 9:05:00 AM, Steven Borer made two filings. One single-page filing simply asked the Judge to Take Judicial Notice of the Club’s lawsuit against former Treasurer Carl Kennedy to observe his conclusion there was no indication in that case that the Club had ever issued a subpoena to any bank. The other was a three-page memo with a two-page email attached. Borer’s three-page filing was a 14-point rebuttal regarding, among other things, the relevance of Mr. Holodak’s filing. Mr. Borer’s memo went on say that, when Mr. Holodak claimed during the hearing that the Club did not have the bank records the Judge wanted to see, Mr. Holodak was being untruthful in making such “testimony.”
- Mr. Holodak’s response was swift, replying three and a half hours later at 12:33:35 PM, a sheepish admission that, after being called out by Steven Borer, he had never subpoenaed any bank records at all. Mr. Holodak instead manufactured an apology for his repeated claims that the Club had subpoenaed bank records and had not received them, claiming that this obvious misrepresentation was “unintentional” and was not intended to mislead the Judge.
- Steven Borer quickly shot back an hour and a half-later at 2:05:00 PM summarizing his incredulity with Mr. Holodak’s ridiculous claim, pointing out that Mr. Holodak repeatedly told the Judge during the hearing that the Club had subpoenaed records from the bank, and this was not an “inadvertent” characterization as far as he was concerned. Steven Borer backed up his reply by attaching an excerpt from a verbatim transcript of the hearing in which Mr. Holodak’s claims with respect to a subpoena are laid bare.
- Mr. Holodak reacted with yet another filing at 2:42:42 PM in which he used five paragraphs to whine about being caught making false representations to a Judge. Among his excuses, Mr. Holodak claimed that he did not “testify” under oath about anything and that he only “inadvertently” misrepresented the facts. Of course, what Mr. Holodak knows is that all attorneys are officers of the court and it is unlawful for them to knowingly misrepresent facts, whether or not the attorney is “testifying” or is otherwise “under oath.” Attorneys are expected to be honest and ethical at all times, especially any time they are filing documents or are practicing law in court.
The Club Already Had the Bank Records
When Mr. Holodak made the false claim that the Club had subpoenaed records from the bank but had not yet received them, he also knowingly concealed the truth of the matter: The Club already had the bank records. Both Mr. Holodak and Mr. Gilhooly knew they had the records when they represented otherwise to the Judge.

To reach this conclusion, all you have to do is critically analyze the Club’s conduct in their lawsuit against former Treasurer Carl Kennedy to recognize the falsity of the representation that they had no records to provide to the Borers (or the Judge). Remember that the stated purpose of the Club’s lawsuit against former Treasurer Carl Kennedy was to recover Club records, including bank records, checks, etc. that they claimed Mr. Kennedy did not return to the Club after leaving office. On March 19, 2020, Mr. Holodak sent Mr. Kennedy a letter on behalf of the club demanding those documents and others. A month later, the Club sued Mr. Kennedy to obtain the records. Just over three months later, on July 27, 2020, the Club filed a formal “Request to Produce,” demanding that Mr. Kennedy produce twenty different categories of records including the following:

“3. Copy of any and all checks, written on any account belonging to the Club, to you for any reason during the past five (5) years.

“13. Copy of any and all financial statements, bank records, accounting statements, regarding the Club generated or produced during the past seven (7) years.”

Mr. Kennedy’s satisfaction of the Club’s request was delayed and was the subject of numerous filings by both parties for two and a half months. But on October 12, 2020, Mr. Kennedy filed an “Answer and Counter-Complaint” in which he answered the Club’s complaint and Request to Produce, stating that “prior to, and as of the date of the filing of this Answer, I had/have already provided Plaintiff with the following corporation documents (in excess of 1,500 pages).” He then listed descriptions of fifteen categories of documents he had already provided to the Club including:

“3) Banking access and records, inc. checkbooks, statements and debit cards

“14) Documents regarding refundable buy-in funds to former members

“15) All PBFC member’s initial applications from 4/1/14 thru 2/12/20”

During a hearing in that case on November 17, 2020, the Club made clear that they possessed all of their bank records and copies of checks. This was evident because they complained that those records showed payments by Club check to Mr. Kennedy’s American Express account. They questioned the legitimacy of those payments because they did not have Mr. Kennedy’s American Express statements and claimed to not know why those charges were paid. Other filings since then indicate Mr. Kennedy also gave the Club copies of his American Express statements, but two facts remain:
- The Club had all of their bank records on or prior to October 12, 2020, three months before their lawyer, Mr. Holodak, pretended to the Borers’ Judge that they did not have them.
- There has been no suggestion that Mr. Kennedy’s American Express account was used to refund any former members’ Membership Fee, and thus they are not relevant to the Borer case.
So even if the Club succeeds in pleading that their false and repeated claims of subpoenaing bank records from their own bank were “inadvertent,” they cannot escape the fact they knew all along that they had the records the Borers asked them to produce, and yet they repeatedly claimed to the Borers’ Judge that they did not have them. These are not small or incidental misrepresentations. They are material and willful false statements made by an officer of the court and the President of the Club.
The May 8, 2020 E-Mail from Attorney Wendy Hausmann:
In Steven Borer’s January 12, 2021, Memorandum in response to the Club’s “Trial Memorandum,” Borer cited a May 8, 2020, email from attorney Wendy Hausmann to Club attorney Edward Holodak which Borer said reflected “the falsity of Defendant’s testimony at trial through its President” (that there were minutes reflecting a Board vote to “abandon its commitment” to refund former members).

Borer attached a copy of Hausmann’s May 8, 2020 email which had been forwarded to him the previous day, on January 11, 2021, by former Treasurer Carl Kennedy. However, we believe Steven Borer and dozens of other Club-affiliated people were actually forwarded this email back on May 8, 2020 at 10:46 AM. Our analysis indicates this May 8, 2020 email was included in the original Statement of Claim by Lloyd and Graham Hill (a previous lawsuit against the Club seeking Membership Fee refund), which strongly suggests Carl Kennedy had long-ago forwarded this same email to Steven Borer and dozens of others on May 8, 2020. Although the Hills redacted the usernames from Mr. Kennedy’s forward of that email on May 8, 2020, we believe the third addressee on the first line is that of Steven Borer.

The gist of Hausmann’s May 8, 2020 email is that she was complaining about what she believed were material omissions in the minutes to a special Board meeting held on May 4, 2020. She noted the “conspicuous omission of the Motion made by Robert Breeden to disavow and default on the monies owed to former members of PBFC.” Since this motion was reported to occur at an open member meeting and we have not seen any denials it happened, we must assume that Ms. Hausmann fairly characterized the nature of the motion. Thus, we believe Ms. Hausmann’s concern about the lack of reference in the minutes as to its disposition is well placed. However, we believe this motion has far greater legal value to Steve Borer because it shows “legislative intent,” the record of deliberation that courts use when interpreting the meaning of laws, regulations, etc.

In this case, introduction of “the Breeden Motion” gave the Board an opportunity to directly state their intent that the Membership Fees of former members would never be refunded. But this is precisely what the Club President testified under oath happened at the May 4, 2020 meeting. However, “the Breeden Motion” was not passed. There is no record of it even in the minutes the Club produced. The fact it was introduced, rejected, ignored, and omitted means that, even if it was legally permissible for the Board to do so, it could not possibly have been the Board’s intent on May 4, 2020 to retroactively apply its new Membership Fee scheme to former members seeking their refunds.
The Club’s inclusion of a .INFO web page page
For reasons not known, when Edward Holodak filed the May 4, 2020 minutes that he and the Club President had claimed demonstrated the Board’s intent to retroactively deny refunds to former members like Steven Borer, Mr. Holodak also attached an 8-page printout of our November 25, 2020 newsletter in which we provided a detailed report of the November 11, 2020 Club membership meeting. It is difficult to imagine the legal strategy of producing that document, unsolicited, to the Judge, particularly because there was no mention of it in the “cover sheet” which said only that “Defendant… hereby files this Notice of Filing Requested Board Meeting Minutes.”

The document Mr. Holodak filed indicated that, on December 3, 2020 (more than a month prior to the Borers’ trial), the Club had obtained and printed our November 25, 2020 newsletter. Again, why the Club feels this is relevant now is a mystery, but if the Judge actually reads the words on the page or then goes to the web site itself, we have a hard time believing any of that new knowledge will accrue to the benefit of the Club.
Gilhooly’s claim during trial that the changes to the Ops Rules were not relevant to the case
Our recollection is that the Judge asked Greg Gilhooly if the Operational Rules had been modified in 2020. Mr. Gilhooly said that there were some revisions but immediately claimed that he could not remember any specific revisions. He also claimed that the revisions to the Operational Rules in 2020 were not relevant to the issues in the case. If the transcript reflects this as his testimony, this is a huge problem for the credibility of the Club because it is so demonstrably false. It boggles the mind why Mr. Gilhooly would ever perjure himself that way.

It was surprising that the Club’s lawyer did not correct Mr. Gilhooly immediately. The most viable explanation is that both Mr. Holodak and Mr. Gilhooly both knew that the changes to the Operational Rules dated May 12, 2020 were very relevant (that is where the $1,700 refundable Membership Fee was changed to $499 non-refundable, along with establishment of a $1 share value), so it would appear that Mr. Holodak suborned perjury by Mr. Gilhooly in an attempt to keep the Judge from seeing the evidence and its relevance to the case.

Of course, what they probably were not counting on was the Judge demanding to see the minutes to the May 4, 2020 meeting where the Board supposedly voted to cancel the debt owed former members. And they were also probably not counting on the Judge learning that the Board incorporated the effects of motions passed at the May 4, 2020 meeting into the Operations Rules (inaccurately) dated May 12, 2020, and reportedly approved on May 13, 2020.

The bottom line is that, if this had been a proper trial with proper discovery/evidence disclosure and with even the most ordinary attorney representing the Plaintiff, the Club’s misrepresentations would have been laid bare in a manner as to call into question the credibility of anything they had to say. The Club lucked out that Steven Borer didn’t immediately challenge their false testimony. Even if the Club gets away with pulling one over on Steven Borer and the Judge, their dishonesty should be clear for all to see in the court of public opinion.

Conclusion

We believe that each of the issues described above, taken individually, but certainly in total, indicate the Club is unrestrained when it comes to dishonest conduct. We showed that the Club:

likes to play legal games with the process and witnesses;
falsely represented to the Judge that the Club’s Board minutes reflect intent to retroactively take refundable Membership Fees;
falsely represented to the Judge that the Club does not have copies of checks and bank records;
falsely represented that the Club subpoenaed records from their own bank;
failed to disclose that they entertained a motion to cancel refunding Membership Fees of former members, but did not pass that motion;
inexplicably placed in the record a rather incriminating newsletter we sent in November;
falsely claimed that none of the three revisions to the Operational Rules in 2020 had any relevance to this case.

Going forward, members simply
must consider this overwhelming and persistent practice of dishonesty when listening to current Club officials. Members should demand proof for all statements the current Club officials make with respect to any aspect of Club operations. Finally, members should step up in the pending Board elections to give members a real choice to challenge this kind of so-called “leadership.” Failure to object at meetings and in campaigns will be interpreted as consent for the current officials to continue down the dark road they are on.