⚖️Legal Update X: Now Three Lawsuits in the Last Six Months

Just as the Hills’ case against the Club was coming to a close, we discovered a new lawsuit against the Club. This most recent lawsuit was filed on October 19, 2020. We did not notice this case earlier because we it was filed against the “Pompano Beach Flying Club,” not the Club’s actual corporate name, the “Pompano Senior Squadron Flying Club, Inc.” This is, of course, in addition to the lingering case of the Club vs. former Treasurer Carl L. Kennedy, II.

In this newsletter, we will introduce the latest lawsuit and update you on recent filings in the other two:

Borers vs. Pompano Senior Squadron Flying Club, Inc.

On April 12, 2018, Steven Borer submitted an application, along with the $1,700 fully refundable Membership Fee, to the Club. Within six months, around October 2018, Steven withdrew from the Club and requested the refund of his Membership Fee. He did not receive the refund. Steven wrote to the Club Treasurer, who acknowledged the debt but explained the Club was short on funds, but that Steven was “in line” for his refund. Thus, it seems that, certainly by 2019, the Club had a list of former members who were due their refund, and these members were presumably being refunded in order of a logical priority.

In January 2020, still with no refund in hand, Steven again followed up. The Treasurer told him the Club had just sold an aircraft, so funds would soon be available. However, by May 2020, Steven still had not received his refund. Greg Gilhooly, then President, reportedly told Steven that the Club’s Board of Directors had voted to make all shares worthless and that he would not be receiving any refund of his $1,700 fully refundable Membership Fee.

On October 19, 2020, Steven Borer, and his father, Michael Borer, filed a Small Claims lawsuit in Broward County Court against the Club to recover the $1,700 Membership Fee (Michael Borer had paid the Membership Fee for his son). The Club responded to this new lawsuit at the last minute by sending attorney Edward Holodak to – once again – represent the Club.

The first “action” in the case was a pretrial conference via Zoom at 9:30am on Friday, December 4, 2020. Interestingly, despite having not filed a written “Notice of Appearance” to the Court, Mr. Holodak appeared at the Zoom conference, stating that he represented the Club. Later that day, well after the pretrial conference had concluded, Mr. Holodak backfilled the docket with a written “Notice of Appearance.”

We don’t have any reports from this pretrial conference, but it would typically include an attempt at mediating the dispute to avoid trial. That mediation apparently failed. It seems a trial date has been set for January 11, 2021 at 10am. However, the only evidence of that trial event is a notice filed by Mr. Holodak. Mr. Holodak apparently could not wait for the Judge to issue the Court’s official “Pretrial Conference Order and Notice of Trial” form that spells out the official particulars of the trial. In the previous “Membership Fee refund case,” the Judge did file such notice… just one day after the pretrial conference. In the Borer case, within hours of the pretrial conference, after Mr. Holodak backfilled his Notice of Appearance, he also filed a so-called notice to Steven and Michael Borer of a “Non-Jury Trial 2 Hours/Evidentiary” hearing to be held via Zoom on Monday, January 11, 2020 ay 10am. The notices from Mr. Holodak (which he claimed were sent to the Borers only via U.S. Mail, and therefore subject to delivery delay) included several claims: all witness must be sworn in by a notary; both parties must appear “with counsel, if applicable;” and all documents or exhibits for the trial must be filed by Monday, January 4, 2021. It might look a bit like a court order for trial, but it is missing some key mandatory details found on the official form for “Pretrial Conference Order and Notice of Trial.”

In short, the Club appears to once again be aggressively chomping at the bit to rip into their own, pilots whose only crime was joining the Club in good faith and with the reasonable expectation they would receive reciprocal treatment from the Club. The Club’s actions on Friday suggest they wanted to beat the Judge to the punch by wielding their own legal intimidation “tool.” The Club seems intent on executing a campaign of retaliation and coercion against any litigants, pro se or otherwise, who would dare challenge the Club’s unjust enrichment scheme of seizing all previously submitted $1,700 Membership Fees.

Yesterday, the Borers filed a Motion to Amend the case style and caption with the intended effect of (1) Withdrawing Michael as a named Plaintiff, (2) Withdrawing Gregory Gilhooly as a named Defendant, and (3) Changing the name of the Defendant to reflect the legal name of the Club: “Pompano Senior Squadron Flying Club, Inc. D/B/A Pompano Beach Flying Club.” We have a difficult time believing the Club could logically object to anything in the Borers’ motion, and the motion certainly looks like it simplifies the case. But simplification may reduce billable hours for legal services to the Club, so you never know. In any case, the Borer’s motion would need to be approved by the judge before it can be in effect, but this seems like a motion best handled directly by the Judge just using her professional discretion in the interests of judicial efficiency.

We will continue to monitor the case docket to obtain and mirror the Court’s “Pretrial Conference Order and Notice of Trial,” as issued by Judge Phoebee R. François, as soon as practicable after it is publicly available.

Hills vs. Pompano Senior Squadron Flying Club, Inc.

As we wrote in our last newsletter, it looks like this case is going to be closed soon. On Friday, December 4th, the Hills filed their Motion to Dismiss With Prejudice, accompanied by a proposed Agreed Order to Dismiss and a Settlement Agreement, the latter of which was signed by Plaintiffs and the Club President. The Settlement Agreement incorporates, by reference, a “Confidential Statement.” The Hills received permission from the Judge to file the Confidential Statement under seal. With permission of the Court, the Hills did file the Confidential Statement under seal, and so the Confidential Statement is not available to the public. Assuming the Judge issues the Agreed Order to Dismiss the case, this should fully dispose of the Complaint. We will monitor the case and will mirror any such Order or further filings in the case.

Pompano Senior Squadron Flying Club, Inc. vs. Carl L. Kennedy, II

As we predicted in our last newsletter, despite repeated advice from the Judge, this case seems to be bouncing along with more filings, motions, hearings, and now even a deposition. Yesterday, former Club Treasurer Carl Kennedy filed an Amended Responses to the Club’s request for documents and Amended Answers to the Club’s questions. The Club previously subpoenaed Kennedy’s lawyer friend to appear via Zoom for a deposition, which was scheduled to be held at 10:00 am today. Although Kennedy would be allowed to attend (as Defendant in the case), viewing this deposition live via Zoom would not be possible for the public.

The Deposition of Kennedy’s lawyer friend, Wendy Hausmann, is troubling on several levels:

  1. In spite of the Club’s motion to disqualify Ms. Hausmann, the Judge has already said that Kennedy was free to get advice from anyone he wanted, including from Ms. Hausmann.
     
  2. Kennedy long ago informed the Judge, on June 30, 2020, that the Club had previously filed a Bar Complaint against Ms. Hausmann, a fact the Club admitted in paragraph 18 of their motion to disqualify Ms. Hausmann.
     
  3. Ms. Hausmann is a non-party in the case and has special protective rights not available to parties, not the least of which is not to answer questions on the grounds the answer might incriminate her (“pleading the Fifth”) with regard to the pending investigation by the Florida Bar.
     
  4. The apparent execution of this deposition is perhaps the best evidence that the Club’s officers are completely tone deaf, perhaps even in contempt, with regard to the Judge’s clear and repeated counsel to the parties to “roll up their sleeves” and that they would save money if they involved Ms. Hausmann in case administration rather than create more legal work.
     
  5. Finally, it seems the only issue the Club might have any question about was the “loan” that Ms. Hausmann allegedly gave the Club in late 2019. However, during the motions hearing on November 17th, Mr. Kennedy discussed the case history and the nature of that loan saying it had been given and repaid within 75 days. Both Mr. Kennedy and Ms. Hausmann said the terms of the loan were only verbally agreed.  Thus, it is not at all clear what the Club can realistically expect to accomplish with this deposition of an attorney (other than to abuse the judicial process to harass Mr. Kennedy at the risk of further irritating the Judge).

We believe Carl Kennedy’s Amended Responses to the Club’s request for documents contains a series of responses that can perhaps be best paraphrased to include, “I already gave it to you;” “I don’t have it;” “The Club is supposed to keep minutes, not me;” and “This is overly broad.” Kennedy included specific objections to most requests before answering without waiving objection. The document requests and responses are paraphrased below, but the actual document should be referenced for authority:

  1. Any contracts between Kennedy and Hausmann. None.
     
  2. Any contracts between the Club and Hausmann. None.
     
  3. Copies of any checks from the Club to Kennedy going back five years. Since February 15, 2020, the Club has had access to all historic banking records. Kennedy has no possession of checks or access to such historic records.
     
  4. Copies of any checks/payment from Kennedy to the Club going back five years. Since February 15, 2020, the Club has had access to all historic banking records. Kennedy has no possession of checks or access to such historic records.
     
  5. Copies of Kennedy’s American Express statements reflecting payment by the Club. Kennedy previously provided all American Express statements from 2017 through the last Club-related charge in 2020.
     
  6. Copies of any other credit cards owned by Kennedy reflecting payment by the Club. No other such cards exist.
     
  7. Copies of any loan documents related to the alleged loan by Wendy Hausmann. None.
     
  8. Copies of notes, agreements, etc., regarding alleged loan by Wendy Hausmann. Other than the three checks previously provided, none.
     
  9. Copy of Board of Director meeting minutes approving loan by Wendy Hausmann. Kennedy does not possess such minutes. The Secretary is responsible to maintain minutes.
     
  10. Copy of communications from Wendy Hausmann to Kennedy regarding loan. None.
     
  11. Copy of communications from Wendy Hausmann to the Board of Directors regarding loan. None.
     
  12. Copy of communications, letters, notes, or other written documents from Wendy Hausmann to the Board of Directors regarding loan. None.
     
  13. Copies of all financial and accounting statements and bank records of the Club going back seven years. Since February 15, 2020, the Club has had access to all historic banking records. Kennedy has no possession of these documents or access to such historic records.
     
  14. Copies of communications between Kennedy and Hausmann regarding revisions to the By-Laws of the Club. All such documents have been previously provided to the Club.
     
  15. Copy of any communications between Kennedy and any third party regarding a loan from Hausmann to the Club. None.
     
  16. Copy of any communications between Kennedy and any third party discussing the Club reimbursing Kennedy for alleged expenses Kennedy paid on behalf of the Club. Email sent on August 15, 2020 to current Treasurer requesting reimbursement of unpaid expenses.
     
  17. Copy of any communications from the Club and its agents or attorneys to Kennedy in the last five years. None. (Note: Kennedy’s response included, “Regularly discarded,” which is taken to mean “I don’t have them anymore,” so “None.”)
     
  18. Copy of any communications from Kennedy to the Club regarding any matter in the last five years. None. (Note: Kennedy’s response included, “Regularly discarded,” which is taken to mean “I don’t have them anymore,” so “None.”)
     
  19. Copy of any communications from Kennedy to any other member of the Board of Directors regarding Club operations while Kennedy served as a member of the Board of Directors. None. (Note: Kennedy’s response included, “Regularly discarded,” which is taken to mean “I don’t have them anymore,” so “None.”)
     
  20. Copy of any communications from any other member of the Board of Directors regarding Club operations to Kennedy while he served as a member of the Board of Directors. None. (Note: Kennedy’s response included, “Regularly discarded,” which is taken to mean “I don’t have them anymore,” so “None.”)

We believe Kennedy’s Amended Answers to the Club’s questions can perhaps be best paraphrased like, “I already gave it to you;” “The answer is protected by privilege;” “I don’t have it;” “I don’t recall;” and “This is overly broad.” Kennedy included specific objections to most requests before answering without waiving objection. The questions and answers are paraphrased below, but the actual document should be referenced for authority:

  1. Who helped you prepare these answers? Without waiving objection to attorney-client privilege, Kennedy said he received assistance from Wendy Hausmann and other public legal advice resources.
     
  2. When did the Club Board of Directors vote to take a loan from Wendy Hausmann? “I don’t recall.”
     
  3. What were the terms of the $10,000 loan to the Club from Wendy Hausmann? Kennedy asked her for the loan on behalf of the Club to be repaid in about 60 days. Hausmann agreed.
     
  4. State each time the Club ever paid Kennedy or American Express to reimburse Kennedy for expenses. Kennedy made several objections but added that:
    • Before filing the lawsuit in April, the Club had full access to all historic bank records of the Club.
    • Kennedy no longer has access to such historic bank records of the Club.
    • Kennedy had already provided AMEX statements from 2017-2019 and used no other credit cards.
    • The Club has better access to the information requested than Kennedy does.
       

  5. List every expense for the last five years Kennedy had paid and claimed was entitled to be reimbursed. After claiming the request was “beyond the scope and overbroad,” Kennedy cited one expense for $2,512.52 that he has repeatedly submitted for reimbursement, as late as August 15, 2020, and not been paid.
     
  6. State the name of every member of the Board of Directors who is aware the Club borrowed $10,000 from Wendy Hausmann. Kennedy replied that does not know what other members of the Board are aware of.

As you can see, at least two of these cases show no sign of winding down. If anything, they represent more of the same… more dues money out the door to prosecute or defend against lawsuits that seem to have no viable path to ever get the legal costs back or provide a return on investment for the Club.

We will continue to update the litigation pages on the web site as we learn more, but please continue to let us hear from you at newsletter-feedback@pompanobeachflyingclub.info.