From: Shawn Heath
Sent: Friday, March 13, 2015 4:27 PM
To: mdd@co.walton.fl.us; Bill Warner (billwarner@warnerlaw.us)
Cc: Sidney Noyes (noysidney@co.walton.fl.us); Kendall Henley (kendallhenley@warnerlaw.us); Crissie Singletary (sincrissie@co.walton.fl.us); Gregory T. Stewart (gstewart@ngnlaw.com)
Subject: Driftwood - Sources of funds for Walton County - GRM
Importance: High
Mark and Bill
For years we have pointed out multiple sources of funds that the County could obtain or pursue to address the flooding and other problems in Driftwood.
One of those is a claim against George Ralph Miller for breach of fiduciary duty. As shown by the attachments:
1. He testified that he was Walton County’s attorney from 1968- to about 2002
2. His file indicates that he represented Walton County on the 2002 NOPC regarding Sandestin.
3. In March 2003, the Driftwood developer (Olson) hired GRM to obtain a development order which he was able to do and avoid all public hearings and public notices and many of the requirements of the Comp Plan and Land Development Code.
4. In 2005 in represented Olson before the BCC regarding Driftwood and negotiated Olson’s settlement agreement with Walton County. (He also worked with Adams Homes in a joint defense arraignment at that time.)
5. In 2007 he represented Olson again before the BCC regarding Driftwood and appeared as counsel of record for Olson in this lawsuit and has never withdrawn.
6. In spring 2010 Walton County paid him for his legal advice on Driftwood. (Without a written contract in place.) He was hired by Lynn Hoshihara at Commissioner Brannon’s instruction.
7. In 2010 and 2011 he represented Walton County in its discussions and adverse issues with Sandestin and Mr. Becnel.
8. After 2011 he, and Lloyd Blue, represented Mr. Becnel in advancing Mr. Becnel’s interests with Walton County for Sandestin. Lynn Hoshihara attended those meetings for the County. She authorized payment of Mr. Miller’s invoices for many months prior that to advise Walton County concerning Sandestin.
Mr. Miller’s conduct for Olson betrayed his duties to his former client (Walton County) in part because GRM circumvented the lawful process to obtain the development order and later, in his role as the County’s attorney, advise the county concerning the legality and propriety of the Driftwood neighborhood. Its rational to believe that he had a self-interest and the interest of Olson in not advising the County properly, objectively about Driftwood and Sandestin or the extent of his prior role.
Most lawyers would view this as a relatively easy case of liability. The County should have required Mr. Miller to maintain a professional liability policy of at least $1 million, so the County should make a claim and then use those funds to help solve problems in Driftwood. That should be an easy case.
From: Shawn Heath
Sent: Monday, March 09, 2015 11:47 AM
To: mdd@co.walton.fl.us; Bill Warner (billwarner@warnerlaw.us); Sidney Noyes (noysidney@co.walton.fl.us)
Cc: roogenara@co.walton.fl.us; Kendall Henley (kendallhenley@warnerlaw.us)
Subject: Driftwood - misc --
Importance: High
Mark and Bill
1. If you recall, Angie Biddle’s deposition was slow and cumbersome because her file was somewhat out of order. If you guys will send me email copy of her file to me in the order that she wants it, we will bates # it and I’ll bring copies for everyone next week. Also, please ask Commissioners Comander and Jones to come to their depositions next week with any documents that likely will be germane to their testimony.
2. We are about to start spending a significant amount of money for experts to update their work and for additional experts. We have already spent tens of thousands of dollars on experts. Obviously our clients, who are not large corporations, would prefer not to spend that money. Based on what our clients have learned (and are continuing to learn) about Walton County’s deliberate actions against them, all of them are committed to take this case to the end. ( I do not think anyone doubts Alan’s commitment; he will go broke and worse before he quits.) Frankly, our experts, after they studied this case, have also expressed their personal disgust and disbelief at the conduct of the government, such that I know they will continue to work on this case even if our clients could not pay them anymore. (I will also.) I have also had many people with resources express their support for our case and that they would also help fund this case if we need it; in light of the Hampton Inn controversy many of those home owners in Seaside also feel the same way.
3. Every week or so, we receive documents from Walton County that should have been produced years ago in response to public records requests that clearly asked for any document related to “Driftwood.” (Walton County’s 2010 grant application is a good example; it specifically concerned Driftwood. It also involved Renee Bradley and Bill Imfield but neither of them mentioned it in prior depositions when its existence was within the scope of my questions to them.) In light of the inordinate delay to produce emails and other documents responsive to our public records requests and Walton County’s repeated failure to disclose so many documents over these years that directly relate to Driftwood, it is rational to conclude that many of those documents will be adverse to Walton County. Moreover, to the extent that those documents are not timely produced before the depositions of Walton County witnesses, then I intend to take (or retake) the deposition of witness who are relevant to those documents.
4. I say all of that to say this. Our clients will not settle unless they are repaid ALL of their costs and fees in addition to other satisfactory terms. The longer this litigation goes on and the more they spend simply increases the amount of any settlement.
The extended litigation obviously also increases the County’s expense and resources for all of the following:
- paying for 2 lawyers (Bill Warner and Linda Wade) and Bill’s assistant.
- 2 other lawyers time—you and your assistant staff counsel,
- I also know that a 5[SUP]th[/SUP] lawyer (Greg Stewart) is working on issues that will be at the heart of this case
- your staff’s considerable time
- all of the commissioners time and their assistant’s time
- Walton County’s staff’s time for depositions and discovery requests at least the following departments:
o planning,
o accounting,
o engineering,
o clerk of courts,
o tax assessor
o tax collector
o public works
Consider that at last month’s depositions, Walton County was paying for 4 lawyers to attend plus multiple members of County staff. The collective value of all of that time was at least $1000 per hour of cost to the County. With preparation, that week probably cost Walton County $40,000.
I know that the taxpayers association and others will be adding up all of the amounts that Walton County has spent in legal fees and other costs in fighting against Driftwood for something that Walton County has known is a serious problem for years. The taxpayers association will also calculate the lost value in tax revenue to Walton County from lost home values in Driftwood. We also know that the taxpayers association is sympathetic to our clients plight and sees the best use of taxpayers money now is to resolve the case and find solutions instead of wasting tens of thousands of more money in legal fees.
We all know that even if Walton County wins every aspect of this case, it will cost Walton County hundreds of thousands of dollars and the County will still have to address the drainage and mosquito problem which will cost the County millions of dollars more.
In light of the Driftwood Road Analysis Report prepared by Walton County in 2011 (that was revealed for the first time last month) (See attached Exhibit 396), the roads in Driftwood II have significant cracking requiring repair and a geotechnical engineering analysis such that the County will not accept maintenance responsibilities for those road until the Driftwood II Homeowner’s Association performs the repairs that County should have required the developer to perform. It was also these roads and stormwater drainage system that Greg Graham approved just months before in 2010.
Now the problem is that DR Horton took over control of the Driftwood II HOA, but has never been required by Walton County to address those problems. Instead the County has allowed continued construction of homes in Driftwood exacerbating that road cracking and deterioration by heavy dump truck traffic volume (which has further harmed the roads in Driftwood I that Walton County made those homeowners pay for via a MSBU.) The Driftwood II HOA likely will not have the funds to address these expensive problems (many of the homes in the interior have been foreclosed and many are cracking) so Walton County will have to otherwise leave those people at increased risk or pay for the repairs.
In allowing the continued construction of homes in Driftwood, the County has also knowingly increased the risk to the thousands of its residents because the County’s own grant application to the State of Florida acknowledges that the access is a major life safety concern. (These would have been ample grounds for the County to at least suspend construction to address a significant life safety issue.)
Meanwhile all of these problems also a significant drag on all property values of ALL of the homes in Driftwood (as reflected in the tax assessor’s own valuations) which of course means that not only has Walton County created and allowed itself to become functionally responsible for millions of dollars of infrastructure repair costs, it has significantly reduced its tax revenue from Driftwood; it’s a lose—lose for Walton County. It should not be forgotten that the developers and builders in Driftwood made tens of millions of dollars in profit while leaving Walton County with all of these problems that Walton County knowingly enabled.
So, any rational person should see that the most beneficial use of the taxpayers money is to stop paying legal fees and use those and other funds to fix the problems.
There are ample viable solutions for these problems that can decrease the further irrational waste of Walton County’s taxpayer’s money, but even the time for those is passing by the County’s slumber.
NOW—before both the County and our clients spend hundreds of thousands of more dollars (we will file new lawsuits within the next 30 days)—is the time that we should try to settle this case. We both know that none of these facts will materially change between now and the mediation in July, so there really is no economic value to anyone—except the lawyers—to settle this case.
Please let me know your response by tomorrow afternoon—even if it is an unequivocal “No” as I cannot wait much longer than that to have my experts start their work again.
Respectfully
Shawn Heath
*****More to Come*****
Sent: Friday, March 13, 2015 4:27 PM
To: mdd@co.walton.fl.us; Bill Warner (billwarner@warnerlaw.us)
Cc: Sidney Noyes (noysidney@co.walton.fl.us); Kendall Henley (kendallhenley@warnerlaw.us); Crissie Singletary (sincrissie@co.walton.fl.us); Gregory T. Stewart (gstewart@ngnlaw.com)
Subject: Driftwood - Sources of funds for Walton County - GRM
Importance: High
Mark and Bill
For years we have pointed out multiple sources of funds that the County could obtain or pursue to address the flooding and other problems in Driftwood.
One of those is a claim against George Ralph Miller for breach of fiduciary duty. As shown by the attachments:
1. He testified that he was Walton County’s attorney from 1968- to about 2002
2. His file indicates that he represented Walton County on the 2002 NOPC regarding Sandestin.
3. In March 2003, the Driftwood developer (Olson) hired GRM to obtain a development order which he was able to do and avoid all public hearings and public notices and many of the requirements of the Comp Plan and Land Development Code.
4. In 2005 in represented Olson before the BCC regarding Driftwood and negotiated Olson’s settlement agreement with Walton County. (He also worked with Adams Homes in a joint defense arraignment at that time.)
5. In 2007 he represented Olson again before the BCC regarding Driftwood and appeared as counsel of record for Olson in this lawsuit and has never withdrawn.
6. In spring 2010 Walton County paid him for his legal advice on Driftwood. (Without a written contract in place.) He was hired by Lynn Hoshihara at Commissioner Brannon’s instruction.
7. In 2010 and 2011 he represented Walton County in its discussions and adverse issues with Sandestin and Mr. Becnel.
8. After 2011 he, and Lloyd Blue, represented Mr. Becnel in advancing Mr. Becnel’s interests with Walton County for Sandestin. Lynn Hoshihara attended those meetings for the County. She authorized payment of Mr. Miller’s invoices for many months prior that to advise Walton County concerning Sandestin.
Mr. Miller’s conduct for Olson betrayed his duties to his former client (Walton County) in part because GRM circumvented the lawful process to obtain the development order and later, in his role as the County’s attorney, advise the county concerning the legality and propriety of the Driftwood neighborhood. Its rational to believe that he had a self-interest and the interest of Olson in not advising the County properly, objectively about Driftwood and Sandestin or the extent of his prior role.
Most lawyers would view this as a relatively easy case of liability. The County should have required Mr. Miller to maintain a professional liability policy of at least $1 million, so the County should make a claim and then use those funds to help solve problems in Driftwood. That should be an easy case.
From: Shawn Heath
Sent: Monday, March 09, 2015 11:47 AM
To: mdd@co.walton.fl.us; Bill Warner (billwarner@warnerlaw.us); Sidney Noyes (noysidney@co.walton.fl.us)
Cc: roogenara@co.walton.fl.us; Kendall Henley (kendallhenley@warnerlaw.us)
Subject: Driftwood - misc --
Importance: High
Mark and Bill
1. If you recall, Angie Biddle’s deposition was slow and cumbersome because her file was somewhat out of order. If you guys will send me email copy of her file to me in the order that she wants it, we will bates # it and I’ll bring copies for everyone next week. Also, please ask Commissioners Comander and Jones to come to their depositions next week with any documents that likely will be germane to their testimony.
2. We are about to start spending a significant amount of money for experts to update their work and for additional experts. We have already spent tens of thousands of dollars on experts. Obviously our clients, who are not large corporations, would prefer not to spend that money. Based on what our clients have learned (and are continuing to learn) about Walton County’s deliberate actions against them, all of them are committed to take this case to the end. ( I do not think anyone doubts Alan’s commitment; he will go broke and worse before he quits.) Frankly, our experts, after they studied this case, have also expressed their personal disgust and disbelief at the conduct of the government, such that I know they will continue to work on this case even if our clients could not pay them anymore. (I will also.) I have also had many people with resources express their support for our case and that they would also help fund this case if we need it; in light of the Hampton Inn controversy many of those home owners in Seaside also feel the same way.
3. Every week or so, we receive documents from Walton County that should have been produced years ago in response to public records requests that clearly asked for any document related to “Driftwood.” (Walton County’s 2010 grant application is a good example; it specifically concerned Driftwood. It also involved Renee Bradley and Bill Imfield but neither of them mentioned it in prior depositions when its existence was within the scope of my questions to them.) In light of the inordinate delay to produce emails and other documents responsive to our public records requests and Walton County’s repeated failure to disclose so many documents over these years that directly relate to Driftwood, it is rational to conclude that many of those documents will be adverse to Walton County. Moreover, to the extent that those documents are not timely produced before the depositions of Walton County witnesses, then I intend to take (or retake) the deposition of witness who are relevant to those documents.
4. I say all of that to say this. Our clients will not settle unless they are repaid ALL of their costs and fees in addition to other satisfactory terms. The longer this litigation goes on and the more they spend simply increases the amount of any settlement.
The extended litigation obviously also increases the County’s expense and resources for all of the following:
- paying for 2 lawyers (Bill Warner and Linda Wade) and Bill’s assistant.
- 2 other lawyers time—you and your assistant staff counsel,
- I also know that a 5[SUP]th[/SUP] lawyer (Greg Stewart) is working on issues that will be at the heart of this case
- your staff’s considerable time
- all of the commissioners time and their assistant’s time
- Walton County’s staff’s time for depositions and discovery requests at least the following departments:
o planning,
o accounting,
o engineering,
o clerk of courts,
o tax assessor
o tax collector
o public works
Consider that at last month’s depositions, Walton County was paying for 4 lawyers to attend plus multiple members of County staff. The collective value of all of that time was at least $1000 per hour of cost to the County. With preparation, that week probably cost Walton County $40,000.
I know that the taxpayers association and others will be adding up all of the amounts that Walton County has spent in legal fees and other costs in fighting against Driftwood for something that Walton County has known is a serious problem for years. The taxpayers association will also calculate the lost value in tax revenue to Walton County from lost home values in Driftwood. We also know that the taxpayers association is sympathetic to our clients plight and sees the best use of taxpayers money now is to resolve the case and find solutions instead of wasting tens of thousands of more money in legal fees.
We all know that even if Walton County wins every aspect of this case, it will cost Walton County hundreds of thousands of dollars and the County will still have to address the drainage and mosquito problem which will cost the County millions of dollars more.
In light of the Driftwood Road Analysis Report prepared by Walton County in 2011 (that was revealed for the first time last month) (See attached Exhibit 396), the roads in Driftwood II have significant cracking requiring repair and a geotechnical engineering analysis such that the County will not accept maintenance responsibilities for those road until the Driftwood II Homeowner’s Association performs the repairs that County should have required the developer to perform. It was also these roads and stormwater drainage system that Greg Graham approved just months before in 2010.
Now the problem is that DR Horton took over control of the Driftwood II HOA, but has never been required by Walton County to address those problems. Instead the County has allowed continued construction of homes in Driftwood exacerbating that road cracking and deterioration by heavy dump truck traffic volume (which has further harmed the roads in Driftwood I that Walton County made those homeowners pay for via a MSBU.) The Driftwood II HOA likely will not have the funds to address these expensive problems (many of the homes in the interior have been foreclosed and many are cracking) so Walton County will have to otherwise leave those people at increased risk or pay for the repairs.
In allowing the continued construction of homes in Driftwood, the County has also knowingly increased the risk to the thousands of its residents because the County’s own grant application to the State of Florida acknowledges that the access is a major life safety concern. (These would have been ample grounds for the County to at least suspend construction to address a significant life safety issue.)
Meanwhile all of these problems also a significant drag on all property values of ALL of the homes in Driftwood (as reflected in the tax assessor’s own valuations) which of course means that not only has Walton County created and allowed itself to become functionally responsible for millions of dollars of infrastructure repair costs, it has significantly reduced its tax revenue from Driftwood; it’s a lose—lose for Walton County. It should not be forgotten that the developers and builders in Driftwood made tens of millions of dollars in profit while leaving Walton County with all of these problems that Walton County knowingly enabled.
So, any rational person should see that the most beneficial use of the taxpayers money is to stop paying legal fees and use those and other funds to fix the problems.
There are ample viable solutions for these problems that can decrease the further irrational waste of Walton County’s taxpayer’s money, but even the time for those is passing by the County’s slumber.
NOW—before both the County and our clients spend hundreds of thousands of more dollars (we will file new lawsuits within the next 30 days)—is the time that we should try to settle this case. We both know that none of these facts will materially change between now and the mediation in July, so there really is no economic value to anyone—except the lawyers—to settle this case.
Please let me know your response by tomorrow afternoon—even if it is an unequivocal “No” as I cannot wait much longer than that to have my experts start their work again.
Respectfully
Shawn Heath
*****More to Come*****
