⚖ Legal Update XVI: PLEASE! Take Judicial Notice

February 2, 2021

This update reflects analysis of the latest information we have in the two lawsuits in which the Club is known to remain entangled (we continue to monitor the Court web site for any new cases but have not seen any as of this writing). This newsletter covers an extremely unusual nexus between these two ongoing cases involving allegations of dishonest conduct by the Club’s attorney, Mr. Edward Holodak.

Borer vs. Pompano Senior Squadron Flying Club, Inc.

Although it has been three weeks since the Small Claims Court trial on January 11, 2021 in the lawsuit by former member Steven Borer against the Club, the Judge has still not ruled, nor has the Court made any filing to explain why it is taking so long or what else is to come. This should be a “slam dunk” case. The Club did not produce records that Borer had requested them to produce at trial. Instead, the Club’s attorney made several statements and claims as to why the Club had not produced the documents, statements we now know were demonstrably false. Even worse, the Club President, Greg Gilhooly, sat there in silence taking no action to correct the record. Apparently taken in by these allegedly “inadvertent” statements, the Judge gave the Club yet another chance to provide documentary proof of their claims after the trial. The Judge made it clear to the Club that she wanted to see the Board meeting minutes and bank records supporting Greg Gilhooly’s sworn testimony that some members had received their refunds in 2018 and some members had not. The Judge wanted to know what the criteria was, “why were select members given their refunds and select members not given their refunds?” The Judge said that the records the Borer’s had requested to be produced at trial, which she was now ordering the Club to produce, was important evidence that was “going to make a very big difference” in her ruling. Three weeks later, the Club has still failed to produce the requested evidence.

As we reported in our last Legal Update on January 16, 2021, in purported response to the Judge’s bench instructions cited above, later on January 11th, the Club made an 11-page filing, “Defendant’s Notice of Filing Requested Board Meeting Minutes.” Although this filing did include Board meeting minutes from May 4, 2020, those minutes do not appear to support the Club’s statements during the January 11, 2021 hearing that the Board voted to retroactively default on the Club’s obligation to refund Membership Fees owed to former members. Further, this filing did not include any bank records the Judge made clear she wanted to see. Finally, without any explanation, the Club attached an 8-page printout of our November 25, 2020 newsletter. In short, it appears that the Club completely failed to provide any evidence supporting their testimony and arguments at trial. Additionally, and arguably the most damning development of all, some of the Club’s testimony and statements are now known to be demonstrably false. In his own filings, Steven Borer has effectively submitted these were willful misrepresentations by the Club’s attorney, Mr. Holodak, who is an Officer of the Court. In any event, with the false statements substantiated and absence of corroborating evidence the Judge requested from the Club, we believe that Steven Borer is entitled to immediate judgment in his favor. Even after the Judge gave the Club extra time after the hearing, it appears clear that the Club failed to produce any evidence showing there is a genuine dispute as to any material fact refuting Borer’s complaint.

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

Several filings were made over this past weekend but added to the case docket on Monday, February 1, 2021. Carl Kennedy filed a Motion to Vacate, Alter or Amend, for Reconsideration and for Sanctions, in which he asked the Judge, accompanied by numerous exhibits, to vacate the Judge’s January 19, 2021 order dismissing Kennedy’s Motion for Contempt filed on December 11, 2021. The general theme that Kennedy put forth is that the Judge should reconsider and vacate his January 19, 2021 Order because the Club’s attorney had allegedly engaged in a pattern of dishonesty in this case, and also in the case of Borer vs. Pompano Senior Squadron Flying Club, Inc. In his Motion to Vacate, Kennedy documented a series of alleged unethical actions by the Club’s attorney, Edward Holodak. Kennedy said the Club’s attorney had been “lying, withholding documents and information” in response to his discovery and interrogatories, and was also lying to other Judges in his representation on behalf of the [Club].” Kennedy continued, “Holodak’s unethical litigation practices, and (respectfully) the Court’s unawareness of or refusal to acknowledge them, are preventing [Kennedy] from presenting a proper defense on [his] own behalf.” Kennedy even included an affidavit from Steven Borer, Plaintiff in the aforementioned case.

One of the more unusual aspects of Kennedy’s Motion is that he requested that the Judge “take judicial notice” of Borer vs. Pompano Senior Squadron Flying Club, Inc. Kennedy specifically alleged unethical conduct by Holodak in the Borer case, conduct he apparently felt was similar and directly related to what he experienced in his own case, and included an 11-page Affidavit from the Plaintiff in that case, Steven Borer.

While we strongly encourage you to carefully read both Kennedy’s Motion and Borer’s Affidavit and their exhibits in their entirety, we have paraphrased – below – very condensed summaries of these two filings.

Motion to Vacate, Alter or Amend, for Reconsideration and for Sanctions

This 10-page motion from Mr. Kennedy is comprised of 15 main paragraphs in five pages and includes 4 exhibits (A through D). The following is our summary and interpretation of each paragraph in the motion by Mr. Kennedy. Note: Where words or phrases appear in “double quotes,” this reflects the actual words used by Mr. Kennedy in his filing. (We have also inserted some supplemental information in parenthetical italics):

  1. I make this motion to document my concerns that I have been previously denied a reasonable opportunity to be heard at hearings.
     
  2. The Court seems to “unconditionally” rely upon Holodak’s representations, resulting in unwarranted bias in the Club’s favor.
     
  3. “Holodak affirmatively lied” on January 12, 2021 when he claimed the Club had “already” complied with the December 1, 2020 Court Order (an Order which required the Club to produce documents to Kennedy’s discovery request and answers to interrogatories by December 10, 2020). The Court accepted Holodak’s claim as truth without asking when Holodak claimed to have complied, and without reference to the docket to corroborate his claim. (The Club’s failure to full comply was obvious because, the day after the deadline, on December 11, 2020, Kennedy filed his Motion for Contempt, to Compel and for Sanctions Due to Plaintiff’s Failure to Provide Discovery Responses.
     
  4. It was not until the afternoon of January 12, 2021, several hours after the 8:45 a.m. hearing, that the Club provided answers to my interrogatories, even though Holodak had earlier claimed these had “already” been filed.
     
  5. After I brought these defects and their adverse effect on my rights to Mr. Holodak’s attention by telephone on January 18, 2021, Mr. Holodak mailed me a copy of a “letter of apology” to the Judge, “clarifying” his statements that the Club had complied, but now they had filed the answers, so the issue was “moot.” (Holodak did not admit that Kennedy’s Motion for Contempt was timely on December 11, 2020 and that the Club had not fully complied with the Court’s order until over a month after the deadline.)
     
  6. Holodak had also demonstrated “general lack of credibility and candor with the Court” while representing the Club in another case the preceding day. I think you “should be made aware that Holodak also affirmatively lied” to the Judge in that case, “and got caught.” [italics in original]
     
  7. I request the Court to Take Judicial Notice of that case (Borer v. Pompano Senior Squadron Flying Club) because it relates to the attached Affidavit of Steven J. Borer. This describes what happened “after [Holodak] was caught in his lie” [underline in original] to the Judge in that case on January 11, 2021. It provides a specific chronology of events that occurred before, on, and after the January 12, 2021 hearing in the Club’s case against Kennedy. In the Borer case, immediately following the trial, Steven Borer exposed the falsity in Holodak’s “subpoena” claims by documenting details from filings in the docket of the Club’s lawsuit against Kennedy. Borer demonstrated that Holodak’s claim could not be true. As a result, Holodak was forced to apologize to another Judge, this time claiming that he “inadvertently” used the word “Subpoena” (three times) when he supposedly only meant “request.”
     
  8. “Holodak has a pattern of using the word ‘inadvertent’ to try to shield and justify what are actually lies to the Court.” Holodak’s claims regarding such alleged mistakes, “made regarding two issues, to two different Judges on two consecutive days, demonstrate that Holodak’s representations to the Court lack credibility.”
     
  9. In short, the Court should take into consideration Holodak’s ongoing lack of candor with Broward County Judges, including:
     
    1. Submitting an Agreed Order to the Court that I had never agreed to or seen.
       
    2. Falsely certifying to this Court that he had “provided” documents in discovery when he only did so after the deadline and, even then, I had to “go get them” myself.
       
    3. “Falsely representing” to the Judge in the Borer case – three times – that he had subpoenaed bank records in PBFC v Kennedy, and then relying on this false premise as the reason why he did not produce the bank records in Borer v. PBFC.
       
    4. “Falsely representing” that he had “already” complied with the Court’s Order of December 1, 2020, when – in fact – he did not fully comply with that Order until after the hearing on January 12, 2020 (a month after the deadline).
       
  10. The remaining six paragraphs in Kennedy’s Motion reflected several themes regarding the adverse effects arising from of Holodak’s alleged misconduct which we have abridged below (“double quotes” reflect verbatim excerpts from Mr. Kennedy’s Motion):

    • Holodak’s “facetious claim” in his apology letter has no credibility because it is a part of a pattern in which he attempts to “shrug off his culpability and instead imply that I am being ‘petty’ for challenging his misconduct.”
       
    • “Holodak is cloaked as an Officer of the Court, but he is a liar.”
       
    • The Court’s acceptance, without substantiation, of what Holodak says is true is prejudicial to Kennedy and deprives him of due process.<
       
    • The Court should not be influenced by Holodak’s “patronizing correspondence” which dismisses his “multiple misrepresentations” as being “‘harmless errors,’ or as being ‘moot.’”
       
    • The Court should question Holodak to learn “why Plaintiff is lying, withholding documents and information in response to [Kennedy’s] proper discovery requests.”
       
    • Kennedy is not asking for special treatment, but just that the Court corrects Holodak’s behavior every time so that the proceedings may be conducted fairly.
       
    • “Holodak’s future representations to this Court should be met with skepticism” and the Court should require him “to prove his representations to this Court in each and every instance.”
       
    • Kennedy is entitled to be judged on facts proven by the Club.

Exhibits:

Kennedy included four exhibits, A-D, with his Motion to Vacate, as follows:

  1. The Judge’s Order Denying [Kennedy]’s Motion for Contempt, to Compel and for Sanctions Due to [the Club]’s Failure to Provide Discovery Responses, January 19, 2021. This document exists as a standalone document in the case docket, but Kennedy attached it as Exhibit A to his Motion.
     
  2. A January 12, 2021 email notice from the Court system. This shows the actual date and time the Club met the balance of its obligations under the Court’s December 1, 2020 order. It showed “compliance” on January 12, 2021 at 4:35 pm, a month after the court-ordered deadline of December 10, 2020, and six hours after Holodak falsely told the Judge that the Club had “already” properly complied with the order and therefore Kennedy’s Motion for Contempt was “moot.”
     
  3. An email exchange on January 21, 2021 between Kennedy and Holodak in which Kennedy recapped their telephone conversation on January 18, 2021 and asked Kennedy to correct any errors. The substance of that email is so detailed that we do not feel it fair to summarize it, but we do note that Holodak replied just seven minutes later, saying that he agreed with Kennedy’s recap. Read it yourself here.
     
  4. The “apology letter” Holodak mailed to Judge Haimes.

Defendant/Counter-Plaintiff’s Request for Court to Take Judicial Notice

At the same time he filed his Motion to Vacate, Kennedy also filed a one-page request for the Judge to take notice of what happened in the Borer vs. Club lawsuit, which remains pending before another Judge in Broward County. The rationale for this notice is implied in the third filing Kennedy made, an affidavit from Steven Borer.

Affidavit of Steven J. Borer

Contained within Kennedy’s third filing last week was an affidavit from Steven Borer, Plaintiff in the separate case Borer vs. Pompano Senior Squadron Flying Club, Inc. This Affidavit is a sworn statement from Borer as to his own personal experience with what he apparently perceived to be the dishonest practices of Edward Holodak on behalf of the Club. Borer’s Affidavit seeks to clarify and correct the potential for misunderstanding with respect to the chronology evident in the case docket. We have converted Borer’s testimony into a table of events so that the context and relevance is clearest.  Except for the last event, all times are Eastern Time on January 12, 2021:

Time Event
07:31 AM E-mailed “Memorandum to Court in Response to Defendant’s Trial Memorandum” to the Judge’s Judicial Assistant with cc to Holodak.
08:30 AM* Scheduled group hearing including three Kennedy motions in Club vs. Kennedy*
09:05 AM Memorandum (above) filed with Clerk of the Court.
09:07 AM* Actual beginning of hearing on three Kennedy motions in Club vs. Kennedy*
09:13 AM* Actual end of hearing on three Kennedy motions in Club vs. Kennedy*
12:33 PM Holodak E-Filed “Notice of Correcting Record”
1:52 PM Emailed "Excerpt from Transcript from Hearing on January 11, 2021" to the Judge’s Judicial Assistant with cc to Holodak.
2:05 PM Excerpt (above) filed with Clerk of the Court.
2:42 PM Holodak E-Filed “Defendant’s Reply to Plaintiffs Post-Trial Motion and Memorandum”
Jan 13, 2021 Borer received letter of apology from Defendant’s lawyer Holodak via USPS on or about January 13, 2021.

Officer of the Court

Although we believe Carl Kennedy’s allegations of misconduct on the part of the Club’s attorney have merit, we would be remiss in not also commenting on the condescending and patronizing tone that Mr. Holodak often displays in cases when opposing pro se litigants. In Kennedy’s case alone, Mr. Holodak has made numerous filings that display a not-too-subtle holier-than-thou attitude in which he berates Kennedy, and seems to even be trying to school the Judge, just because Kennedy is representing himself pro se and Holodak feels Kennedy’s filings sometimes do not meet lawyerly standards.

Here is a sampling:

“While Defendant Kennedy is pro se in this case, he is still obligated to comply with the Florida Rules of Civil Procedure. See §454.18 Fla. Stat.; Kohn v City of Miami Beach, 611 So.2d 538,539 (Fla. 3rd DCA 1992) stating ‘We conclude that it is [a] mistake to hold a pro se litigant to a lessor standard than a reasonably competent attorney.’”
In “Plaintiff’s Motion to Strike Defendant’s Answer, Certain Affirmative Defense and Entry for Judgment on the Pleadings or in the Alternative Judicial Default,” October 27, 2020.

“Although acting in a pro se capacity, Kennedy is obligated to comply with Florida law as well as the Florida Rules of Civil Procedure. See Kohn v City of Miami Beach, 611 So.2d 538 (Fla. 3rd DCA 1992).”
In “Plaintiff/Counter-Defendant’s Motion to Dismiss Defendant/Counter-Plaintiff’s Counterclaim,” October 27, 2020.

As Plaintiff Club as pointed out to this Court in previous responses, while Defendant Kennedy is acting pro se, Florida law requires that Defendant Kennedy comply with the Florida Rules of Civil Procedure as well as all Florida law. Once again, Defendant Kennedy is taking actions that consume this Court’s time, Plaintiff Club’s time and attorney fees, and does so in contradiction of his obligations under Florida law to comply with the Florida Rules of Civil Procedure.”
In “Plaintiff’s Response to Defendant’s Supplemental Motion to Compel,” October 29, 2020.

We find it surprising that a “reasonably competent attorney” would try to school others (including the Judge) on the practice of the law when he has repeatedly “misunderstood” and “misrepresented” facts in a manner that any person could reasonably conclude was actually willful misconduct. Since Mr. Holodak seems to be a “chapter and verse” kind of guy, maybe he can explain to the Club membership how his frequent “misunderstandings” and “inadvertent” misrepresentations to Judges comport with Florida Bar Rule 4-8.4(c), which explicitly states that “a lawyer shall not… engage in conduct involving dishonesty, fraud, deceit, or misrepresentation…” [bold emphasis added]

Subverting the Rules Regulating Florida Bar

The Rules Regulating The Florida Bar are approved by the Supreme Court of Florida. They establish the authority and responsibility of The Florida Bar, an organization charged with ensuring that lawyers admitted to The Florida Bar maintain their membership pursuant to the Rules. In addition to Holodak’s alleged dishonesty summarized by both Kennedy and Borer, we think it is appropriate to note a few provisions found in the Preamble to Chapter 4, Rules of Professional Conduct. We provide these excerpts because they also relate to additional allegedly improper conduct by Edward Holodak in representing the Club.

In our December 8, 2020 newsletter, we explained that the Club had filed a misconduct complaint early last year with The Florida Bar in which the Club apparently alleged misconduct by Kennedy’s attorney, Wendy Hausmann. Mr. Holodak subsequently filed a motion to disqualify Hausmann from representing Kennedy, presumably citing the same “facts” in the complaint to the Florida Bar. Ms. Hausmann subsequently voluntarily withdrew as Kennedy’s representative and Kennedy has begrudgingly represented himself, pro se, with non-representative assistance from Ms. Hausmann. Although the Judge explicitly allowed this arrangement, adding that it was beneficial to the Club to have an attorney advising Kennedy, the Club has persisted in objecting to Ms. Hausmann’s mere presence. During the hearing on January 12, 2021, the Judge noted that none of the Club’s officers were present (at least one Club officer had been present at prior hearings) and directly asked Mr. Holodak if he still objected to Ms. Hausmann’s presence (she was present in the Zoom hearing on January 12, 2021). Mr. Holodak’s response was strange. He said he still objected, but then seemed to distance himself from the objection. He added, “it’s what my clients want.” Because he only has one client in this case (the Club), the only way to interpret this is that he is saying each of the five individuals on Club’s Board objects to Ms. Hausmann’s presence, but that Mr. Holodak may not be professionally on board with their position.

The reason this is relevant is that, although Chapter 3 in Rules Regulating The Florida Bar provides a structure for regulating conduct through disciplinary agencies, Chapter 4 of the same Rules explicitly states the Rules “are not designed to be a basis for civil liability” and that “the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons.”

It seems, therefore, that Mr. Holodak’s filing of the motion to disqualify Hausmann from representing Kennedy may be an action of the type that the Florida Bar states would subvert the Rules. It may eventually be argued before the Florida Bar that the Club’s complaint to the Bar against Ms. Hausmann was “invoked as a procedural weapon” against Mr. Kennedy purposefully to deprive him of Ms. Hausmann’s representation, all at the behest of the members of the current Club Board who seem unable to contain their animosity toward Mr. Kennedy.

Conclusion

Whether or not the Judge in the Club vs. Kennedy hears oral arguments or testimony on Kennedy’s motion, it seems that Kennedy and Borer have both raised and documented serious professional misconduct issues regarding the Club’s attorney. It will be interesting to see how the Judges in both cases react. Whatever happens in the Courts, Club members (shareholders) should have seen enough by now to make clear that Greg Gilhooly and his fellow officers have wasted tens of thousands of dues dollars paying an attorney to angrily attack current and former members, when those same tens of thousands of dues dollars could have been used for the betterment of the Club and to establish a reasonable schedule to refund all outstanding refunds of Membership Fees due to former (and current!) members, and to honor other debts.