⚖️ Legal Update XIII: The Borers vs. the Club’s “I’ve Got a Secret”

January 5, 2021

In our “Legal Update” on December 29, 2020, we reported on the latest developments of the two remaining active lawsuits involving the Club. On December 30, 2020, the day after our Legal Update, the Borers filed a 19-page “disclosure” of documents/evidence and witnesses they plan to use at public trial that will apparently occur next Monday, January 11, 2021 at 10:00am. Yesterday, January 4, 2021, was the submission deadline for the Borer case. Late in the day, the Club filed a 2-page document they apparently believe will be sufficient to make their defense. Shortly after that, the Broward County Clerk posted an order from the Judge that fell short of addressing the entirety of the Borers’ motion made nearly a month ago, on December 7, 2020, seeking to clarify parties and identification. We also remind members of the public hearing in the Club’s lawsuit against former Treasurer Carl Kennedy next Tuesday, January 12, 2021 at 8:30am.

Borers vs. Pompano Senior Squadron Flying Club, Inc.

Although the supposed deadline for exchanging witness lists and intended evidence was Monday, January 4, 2021, the Borers filed their disclosure early, on December 30, 2020. In addition to identifying Michael Borer and former Club Treasurer Carl Kennedy as witnesses, their filing included actual documents: Steven Borer’s application, a billing statement showing payments they made in 2018, plus the Club’s By-Laws and the Operational Rules in effect when Steven was a member. The Borers also assigned exhibit numbers to specific documents they had attached to their initial complaint. Finally, the Borers asked the Judge to compel the Club to produce records showing policies and records of refunds of membership fees to other members in 2018-2019. For its part, the Club filed a bizarrely insufficient 2-page document on Monday afternoon, January 4, 2021, a filing that only listed descriptions of types of documents. The Club did not file any actual documents for use as evidence. We are providing a web page to view each exhibit provided for trial. We also offer a PDF to download all known exhibits.

The Borers’ intended Exhibits are comprised of documents included with their original complaint in October 2020, documents they asked the Court on December 23, 2020 to require the Club to produce, and documents included with their final submission on December 30, 2020. Images of all known exhibits, with the exhibit numbers assigned by the Borers, are available via web page to view each page of the exhibit filings but we also offer a PDF to download all known exhibits at one time. The evidence presented by the Borers seems focused on the fact Steven Borer applied and was accepted into the Club in April 2018, withdrew in November 2018, but never received the refund of his membership fee. The documents they have asked the Court to compel the Club to produce seem intended to demonstrate that other former similarly-situated members received the full refund of their membership fee and, thus, the Borers are entitled to equal treatment: full refund of their membership fee. Additionally, the Borers have subpoenaed former Treasurer Carl Kennedy to testify, presumably about these matters. Of course, the Club has been doggedly pursuing Mr. Kennedy in a separate legal dispute, so how the Club’s attorney treats Mr. Kennedy, and the scope and nature of their examination, seems certain to cause disputes in open court.

For its part, the Club’s 2-page filing yesterday is perhaps best described in one word: Bizarre. First, they have named Carl Kennedy’s lawyer friend, Wendy Hausmann, as one of their two witnesses (the other being Greg Gilhooly). Second, instead of providing actual documents for use in evidence, the Club only loosely described seven items in a list. The club disclosed no actual evidence and their list uses terms that are non-specific. Since the Club actually possesses all the evidence they list, it is unconscionable that they would be disingenuously playing “I’ve got a secret” with the Borers… and the Judge. It is unknown if the Judge will tolerate this type of judicial process abuse by an attorney, but we certainly hope she will not. We believe there is ample basis for the Borers to object if the Club attempts to introduce any document into evidence at all. The Club willfully decided not to provide the Borers (or the Court) with any actual documents by the deadline the Club themselves set. If the Judge allows this conduct to stand, it would be manifestly unjust. In order to avoid any claim that we have mischaracterized the Club’s list, we provide it verbatim below:

  1. All communications between the parties and their agents regarding issues related to and raised in the Pleadings.
  2. Copy of the Club’s By-Laws and Operational Rules
  3. Copy of plaintiffs application to be a Club member
  4. Copy of Check received for payment of Plaintiffs initiation fee.
  5. All discovery and responses thereto propounded by either party herein.
  6. Any non-objectionable document listed by Plaintiff.
  7. All pleadings herein including all Exhibits attached to the Statement of Claim.

The first item reads like a pre-trial discovery request. It is so broad that it is impossible for the Borers to prepare for trial on this item, or know whatever this may include, since the Club has not provided the actual documents they plan to introduce. Even the citation of the Club’s By-Laws and Operational Rules is insufficient because no revision or effective date is provided (there were four different versions of the Operational Rules in effect in 2020 alone). When filing their list, the Club already knew the Borers had filed copies of Steven’s application and $1,700 check, so items 3 and 4 are already in evidence and the Club knows it. The fifth item is more than fascinating: We have seen no indication that the Club has made a discovery request onto the Borers and yet it is clear that the Borers have requested that the Club produce records for trial. There is no indication the Club has produced the records requested, so their item 5 is just plain disingenuous. Items 6 and 7 are also ridiculous since the Club already knows what the Borers have submitted (including the exhibits in their original Statement of Claim), so there is no reason to be vague about objections or what is included.

In their filing, the Club also identified Wendy Hausmann as one of their two witnesses (the other being Greg Gilhooly). As a reminder, the Club has been relentlessly trying to disqualify Ms. Hausmann as counsel for Mr. Kennedy in their lawsuit against Mr. Kennedy, but have been unsuccessful. In fact, the Judge in that case repeatedly encouraged the Club leadership to “roll up their sleeves” and cooperate with Ms. Hausmann, so we can only imagine his reaction when he gets wind of the Club’s latest shenanigans. We believe this latest Club conduct can be accurately described as unethical gamesmanship that may well be intended to cause a “chilling effect” upon the Borers, who have subpoenaed Mr. Kennedy as a witness and would surely prefer he testify without undue influence. While we cannot fathom what connection Ms. Hausmann could have with the Borers’ case, the Judge in the Club’s lawsuit against Mr. Kennedy made it clear that Ms. Hausmann could assist Mr. Kennedy in that case. Thus, it stands to reason that the Club is continuing their misguided conduct in the event Ms. Hausmann may have been planning to represent Mr. Kennedy at trial in the Borers’ case, objecting as needed to ensure, among other things, the relevance of any cross examination by the Club is not intended to feed their pursuit against Mr. Kennedy elsewhere.

No matter how it might be rationalized, it seems clear the Club is again attempting to interfere with the relationship between Kennedy and Hausmann. Whether the Judge in the Borers’ case will recognize this shady gambit remains to be seen, but we have little doubt the Judge in the Club’s lawsuit against Kennedy will understand it, and woe be any Club officer who authorized Mr. Holodak to once again engage in this kind of counterproductive activity.

Finally, late yesterday, nearly a month after the Borers made a motion to amend the parties and case style, the Judge signed an “Agreed Order,” but she actually only ordered one change. The Borers sought to remove Michael Borer and Greg Gilhooly as parties to the case, while also correcting the Defendant name to the Club’s full legal name. However, the Judge’s order did not sever Michael Borer or Greg Gilhooly from the case. Instead, the order only directed the suit be changed to reflect the Club’s full legal name (“Pompano Senior Squadron Flying Club, Inc.”). Thus, Michael Borer and Greg Gilhooly appear to remain named parties.

Upcoming Public Trial: Given the Club’s failure to produce evidence they plan to introduce at trial, we are unsure what will become of the nature of the “trial” on Monday, January 11, 2021 at 10:00am, but we hope that all Club members will log into Zoom to see their own Club in action against former members. Again, this is a public trial, and no matter who you are, you are welcome to observe.

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

It is a conspicuous fact that the Club’s attorney unilaterally scheduled the Borer trial just one day before the Motions Hearing in their lawsuit against Carl Kennedy, and just two days before their noticed deposition of Kennedy’s lawyer friend, Wendy Hausmann. The Club’s compression of these events into a three-day period cannot be reasonably dismissed as coincidence. Instead, the schedule indicates the Club continues to engage in a persistent pattern of arrogant and contemptable bullying. In his Amended Counter-Complaint filed on December 7, 2020, Kennedy asked the Judge to “take Judicial Notice” of the Borer case. We did not see the direct relevance of this request at the time, but it sure seems relevant now. The Club’s recent conduct has directly linked the personalities involved in these two cases in a manner that unquestionably supports judicial scrutiny.

On December 31, 2020, Carl Kennedy filed a motion for a default judgment against the Club for failing to answer his Amended Counter-Complaint. There are almost certainly going to be more filings and cross-motions in this case (perhaps even this week). Beyond all of that, we can only wonder how tolerant of the Club that Judge Haimes is going to be when he learns of the Club’s conduct regarding Kennedy and Hausmann in the Borers’ case given his stern comments directed to Club officers back on November 17, 2020.

Next Public Hearing: Tuesday, January 12, 2021 at 8:30 am via Zoom. We have a link with details on our web site, but you can download an electronic calendar file that has all the details. As we observed last week, it seems like this could be an expensive day for the Club and has all the makings of an informative, if not entertaining, morning, especially on the heels of the Borer proceedings the day prior. We hope that all Club members will again log into Zoom to see their own Club in action against a current dues-paying member, the former Treasurer. This is a public hearing, and no matter who you are, you are welcome to observe.

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