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2004-35 '..' . ~DE BEAUBIEN, KNIGHT, SIMMONS, MANTZARIS & NEAL, LLP ATTORNEYS AND COUNSELORS AT LAw A LIMITED LIABILITY PARTNERSInP INCLUDING PROFESSIONAL ASSOCIATIONS Reply to Orlando HARLEY S. HERMAN RAYMOND HERNANDEZ ELIZABETH A. HICKMAN STEPHEN J. JACOBS JAMES P. KELLEY CAROL M. KNAPP RUBEN LABOY. JR. STEPHANIE W. MELIA MICHAEL E. MORRIS CARMEN MumZ-SIERRA ELIZABETH F. NELSON DANIELJ. O'MALLEY LINDSAYN. OYEWALE SHIV NARAYAN PERSAUD C. BEN RoSSI, JR KATHERINE A. SCOTT KENT A. SHOWALTER III ANGELAJ. STEWART RICHARD H. TAMI CHARLES P. TI'ITLE WILLIAM A. TOMPIO:NS JR BARTR. VALDES LETITIA WOOD JOHNW. ZIELINSIO: HuGO H. DE BEAUBIEN. YVETTE RoDRIGUEZ-BROWN DALET. GoBEL KENNETHP. HAZOURI T. KEvINKNIGHT: : DANIEL F. MANTzARIs D. JOHN MORGESON, JR. THoMASF. NEAL DAVIDH. SIMMONS: : t www.dbksmn.com NANCY J. ABERNATHY SHAHZAD AHMED ELIZABETH A. ALBERT RENEE BINWS JEFF BOSTON' ANTHONY CAMMARATA LINDA S. CARTER RACHAEL MCMORRIS CRAG-CHADERTON MICHAEL W. CURTO MARY ANN ETZLER CARIL E. FERNANDES VALENCIA PERCY FLAKEs PATRICIO GARCIA LUlsF. GoMEZ, JR. . œan".a c:ML TRIM. ATTDRNEY wr:::: œanFlED .US'"'" unflAnall ATTDRNEY MAIN OFFICE Post Office Box 87 332 North Magnolia Avenue Orlando, Florida 32802-0087 (407) 422-2454 Telefax (407) 849-1845 TALLAHASSEE OFFICE 3370 Capital Cn-cIe N.E. Suite I Tallahassee. FL 32308 (850) 201-3655 Telefax (407) 849-1845 Writer's e-mail: dmantzaris/íàdbksmn.com December 9,2004 Via Facsimile and Regular Mail McDirmit Davis Puckett & Company, LLC Post Office 1185t Orlando, FL 32802-9863 'I: Re: Description and evaluation of legal matters related to the City of Clermont as of September 30, 2004. Dear Sir or Madam: The undersigned serves as the City Attorney for the City of Clermont. In response to the October 4,2004 letter from Director of Administrative Services, Joseph Van Zile, received in our office on November 9, 2004, we provide to you the following information. Furthermore, please note that this letter shall serve as our fmn's response on behalf of all members of the Firm that provide legal services for the City. . As City Attorney, we serve as chief legal counsel to the City. In addition, the fmn through the undersigned may represent the City of Clermont in litigation matters related to claims made against the City. The following is provided to you in accordance with the guidelines set forth in the October 4, 2004 letter with regard to information to be provided. '! . . . Page 2 PRIVILEGED NON-WAIVER ~ As City Attorney for the City of Clermont, you are expressly advised that the matters contained in this letter constitute attorney/client-privilege infonnation and shall not be disclosed without the consent of either this office or the City of Clermont. In addition, this letter may contain infonnation, which is protected by the attorney work product privilege, and, therefore, any such items are specifically protected from disclosure. LIMITATION This response is limited by, and in accordance with, the ABA Statement of Policy regarding Lawyers Responses to Auditors Requests for Information (December 1975); without limiting the generality of the foregoing, the limitation set forth in such Statement on the scope and use of this response (paragraphs 2 and 7) are specifically incorporated herein by reference, and any description herein of any "loss contingencies" is qualified in its entirety by Paragraph 5 of the Statement and the accompanying Commentary (which is specifically incorporated as a part of the Statement). In ac!!'ordance with Paragraph 6 of the ABA Statement of Policy and pursuant to the City of Clennont's request, this will confirm as correct the City's understanding as set forth in its audit inquiry letter of October 4, 2004 that whenever, in the course of performing legal services for the City with respect to a matter recognized to involve an unasserted possible claim or assessment that may call for financial statement disclosure, we have fonned a professional opinion that the City must disclose or consider disclosure concerning such possible claim or assessment, we, as a matter of professional responsibility to the City, will advise the City and will consult with the City concerning the question of such disclosure and the applicable requirements of the Statement of Financial Accounting Standards No.5. I. PENDING CLAIMS As of September 30, 2004, we are aware of the following matters pending against the City of Clermont: A. Christopher Polka and Pamela Polka v. City of Clennont. ~ Mr. and Mrs. Polka provided to the City a Notice of Plaintiff's Intent to File suit on November 25, 2003 for alleged claims related to Christopher Polka's tennination from employment with the City. On August 5, 2004 the plaintiffs filed suit against the City which was served on the City on October 4, 2004. A copy of the complaint in this matter is provided for your review. The matter is being defended by the City's insurance carrier who has retained Attorney Doug Noah of Dean, Ringers, Morton & Lawton, P.O. Box 2928, Orlando, FL 32802. . Please contact Mr. Noah for further infonnation regarding ths claim. . DE BEAUBIEN, KNIGHT, SIMMONS, MANTZARIS & NEAL, LLP . , . . . ~ Page 3 B. Jeffrey Radi v. City of Clermont. Jeffrey P. Radi appealed by filing a Petition for Certiorari, a determination by the City Manager regarding disciplinary actions related to his employment with the City's Police Department. Mr. Radi's petition has been denied by the Lake County Circuit Court,. A copy of that Order is enclosed for your review. It is our understanding that Mr. Radi filed a similar Petition with the Fifth District Court of Appeal and that Court has ordered that the City respond. The matter has be!'.n assigned by the City's insurance carrier to F. Scott Pendley of Dean, Ringers, Morton & Lawton, P.O. Box 2928, Orlando, FL 32802, telephone number: (407) 422-4310. Please contact Mr. Pendley for further information regarding this claim. C. Kaczmarek v. City of Clermont This matter involved claims for personal injuries resulting from the alleged negligence of the City. It is our understanding that the matter has been settled through the efforts of the City's insurance carrier and its defense counsel, F. Scott Pendley. For your information, we have enclosed a copy of Mr. Pendley's August 16, 2004 letter to the City regarding the settlement. It is our further understanding that the matter has now been dismissed with prejudice. If you need any additional information, please contact Mr. Pendley. II. THREATENED LITIGATION :~ A. Ann A. Flavin as Trustee v. City of Clermont. On December 6, 2004, the City received a demand letter from Attorney Derek A Schroth on behalf of Ann A. Flavin, Trustee. A copy of the demand letter is enclosed. Mr. Schroth has alleged that the City is indebted to his client in the amount of $16,298.24 for an alleged improper assessments related to a 1997 Special Assessment for Road Improvements. Mr. Schroth further alleges that the City is using a portion of his client's property without consent or consideration. He has threatened to sue the City in the event that these issues are not timely resolved. It is our understanding that this matter has been at issue for a long time and the City has been working with representatives of Ann A. Flavin, to resolve the assessment issue. In our view, the City is not absolutely obligated to reimburse the claimant for the alleged improper assessment because, among other issues, the owners failed to object to the assessment at the time it was competed. Furthermore, according to the City's research the claJm related to the use of the property is not supported by the information available. It is the City's view that it owns the subject property. The City has requested that the claimant provide information supporting this assertion and none ha~, been provided. In an effort to resolve this matter, however, the City, through our office, has offered to pay to Ann A. Flavin, as Trustee, the amount requested in exchange for a full release . DE BEAUBIEN, KNIGHT, SIMMONS, MANTZARIS & NEAL, LLP . . . . Page 4 :.¿ of all claims that are being maintained, including the claim related to the alleged improper use of the claimant's property. We expect a response to our offer in the near future. III. UNASSERTED CLAIMS OR ASSESSMENT As of September 30, 2004, we are not aware of any unasserted claims or assessments against the City of Clermont, which, if asserted, would have at least a reasonable possibility of an unfavorable outcome. IV. OTHER MATTERS Attorney Fees: All billed attorney fees related to the above matters have been paid. -.: If you have any questions, or wish to discuss this matter further, please do not hesitate to contact the undersigned. Very truly yours, / /' '-..--...' ...-.... . DFM/vn cc: Mayor Turville and Council Members Wayne Saunders, City Manager Joseph Van Ziel, Director of Administrative Services Tracy Ackroyd, City Clerk ~ . DE BEAUBIEN, KNIGHT, SIMMONS, MANTZARIS & NEAL, LLP. . ".