They nearly pulled it off.
After four years of courtroom battles, three groups of long-warring players were ready to set aside their differences.
Leisure Resorts, the longtime owner of the Palm Harbor Marina, which catered to some of the largest, most expensive yachts in the world, had been hamstrung by lawsuits for years and wanted peace.
The link between land and water, captured here in a red brick sidewalk promenade along the waterfront next to Waterview Towers, grew to be a large issue in the litigation between West Palm Beach, the Palm Harbor Marina and the condo dwellers at Waterview Towers in downtown West Palm Beach.
Deep in the background but motivating the many legal moves, one critical argument remained untried: the unprecedented and potentially lucrative question of the condo board’s claim to the Palm Harbor Marina.
If the condo board could prove that
claim, the company that had believed itself to be the sole
owner for nearly 50 years, Leisure Resorts, could, with the
city, owe the condo owners millions for its past use and be
required to pay millions more far into the future.
If the settlement went through, however, the claim would be extinguished.
A settlement in 12 hours
In April 2018, Waldman quit after four years as Waterview’s board president.
Almost immediately, the new condo board sent peace overtures to Leisure Resorts and then-West Palm Beach Mayor Jeri Muoio.
Five weeks later, they sat down together.
They emerged 12 hours later with a four-page document spelling out the terms of what they called a global settlement.
It took another year for Muoio’s successor, Keith James, to bring the settlement before city commissioners. They have yet to vote on it.
Whether the global settlement was in fact global remains in dispute.
All the parties signed it, even Waldman. He later said in a legal filing that he and a second condo owner named Laura Bennett signed it "because they understood that it (signing) was required to allow the mediation to continue."
Referring to it as a term sheet, they argued it was not final, pointing to wording in the document itself: “The mediation shall be continued to facilitate preparation of a final settlement agreement.”
Also, they pointed out, they had been excluded from the talks that produced it, consigned to an outer chamber while the association’s new leadership negotiated on their behalf.
Sidewalk payout removes biggest hurdle
Among its many provisions, the term sheet called for the city to end the 1979 lease that had caused problems in previous lawsuits. The city would give condo dwellers title to their property.
It called for the city to pay the condo owners $2.5 million to buy a sidewalk, which, through a legal challenge filed by the condo owners under Waldman, stood as a potential multimillion-dollar city liability. While the $2.5 million is about what Waterview has said in court it has spent on litigation, it said it intended to spend $1 million of the settlement to expand its parking garage.
Those moves would sever the decades-long arrangement tying the commercial portions of the property to the residential, a step requiring the approval of all the condo owners.
They also would remove the issue of control over the marina, forever ending the condo association’s claim to it.
And with that, it would bring to a screeching halt five lawsuits, including the condo association’s challenge to the ownership of the marina.
In a detailed July 2019 contract labeled an “implementation agreement,” Leisure would be allowed to build a yacht club up to 75 feet high (enough for six stories) with up to 40 “overnight suites” that would satisfy Leisure’s decade-long ambitions to build a hotel. Current condo residents would get a free lifetime membership.
But that document also commits Waterview to “publicly support and not challenge Palm Harbor’s applications for all permits and approvals (including variances)” for the yacht club building, raising the question of whether Leisure could exceed the height limit without opposition.
By taking ownership of the building, Waterview residents would be relieved of paying the city rent of $56,575 a year for the 132 condos, or $428 per condo. Asking prices for condos in the building start at $1.3 million.
Supporters acted as if the global settlement were a done deal. Then-Waterview Vice President Melissa Parker told condo residents the next day that "all parties are in agreement."
The city, however, seemed to believe more talks would ensue. In asking two weeks later for the court to place a hold on the marina lawsuit, the city wrote that the mediation "resulted in an outline of a proposed universal settlement agreement" that will “require further discussions.”
Threats, emails and a defamation suit
At this point, the strains within Waterview erupted into open warfare.
Concerned that Waldman and Bennett would not agree to the settlement, the board’s new attorney, Dennis Eisenger, called Waterview attorney Bob Sweetapple in October 2018. He wanted to know how the board could secure Waldman’s approval. Waldman is individually named in the suits, meaning they can’t be settled without him.
In an affidavit, Sweetapple said Eisenger told him that if Waldman did not cooperate, the board would use “reams of evidence that contained financial misdealings and breaches of fiduciary duty to ‘expose’ Mr. Waldman and ‘destroy him.’”
"I indicated to Mr. Eisenger that this threat should not be made,” Sweetapple said in his affidavit. “He stated that he had given the board the same advice, but the decision had been made."
In a December 2018 response, Eisenger wrote that he never uttered those words.
“Rather, I merely stated that the association had advised me that it had gathered a great deal of information about Mr. Waldman involving alleged misrepresentations and breach of his fiduciary responsibilities to the association, and that you be requested to ask him to immediately cease any further detrimental activities and conduct of that nature.”
Waldman did not back down.
Two weeks after the lawyers spoke, the condo board sent residents a nine-page letter labeled “official communication.”
It would form the basis of Waldman’s libel suit.
The Nov. 8 letter pointed out that the association had spent $2 million on legal fees since 2014.
The global settlement, the board told the residents, would put an end to all of that.
But the board couldn’t tell the residents what was in the settlement because they had been directed “to maintain strict confidentiality” since the mediation was ongoing and litigation remained on hold.
The board complied with the confidentiality decree despite “misinformation disseminated, overly aggressive and vindictive behavior on the part of others, and vicious personal attacks on board members.”
Calling itself the “only accurate, factual, unbiased and permitted source of information,” the board suggested residents block email from “unofficial and unauthorized” sources.
It explained that the new board found itself in conflict with the old leadership, which favored continued litigation costing thousands with no clear path toward a viable solution.
Then it turned to the settlement discussions, calling them “truly transformational.”
"Our attorneys noted that the agreement is exceptional, and advised us that no court could have ordered the parties to do what was agreed upon in the settlement," the board told residents.
They anticipated unit owners would vote on it by the end of 2018.
‘Real and substantial risks’
Under “risks to not settling,” the board revealed that it had secured a risk assessment of all the outstanding litigation, a second opinion on the cases and a third independent legal opinion on “two specific matters of great concern.”
“All legal opinions emphatically concluded that continued litigation in all of the cases was not in the best interest of the association.”
The board couldn’t share those opinions with condo owners, however, because they were confidential. The board did tell the condo owners that “the association faces real and substantial risks, including financial liability to the membership and potential loss of control over the association if these cases proceed to litigate to conclusion.”
The previous president, Waldman, had failed to disclose the risks and had maintained “exclusive, sole and continuous communication” with the litigation attorneys, meaning John Eubanks and Sweetapple.
“This tremendous financial liability and risk is independent of the enormous amount of attorney’s fees that could be expected over the next several years that will result in an immediate assessment to the membership if the membership vote fails to approve the settlement.”
The board, it said, had fired Eubanks and Sweetapple because of “conflicts created by the prior president,” leading to “irreconcilable differences.”
Eubanks and Sweetapple withdrew from the cases that month.
That same day Waldman sent out an email of his own, a copy of which does not appear in court files.
But the board replied to it two days later.
It urged residents to block Waldman’s email and pointed out that he had signed the mediation agreement and so “is not allowed to do anything that undermines the very agreement that he is a part of.”
“Now it is crystal clear that Waldman has no intention of upholding his end of the agreement, which could jeopardize the settlement for the entire association unless it is corrected NOW, which we intend to do.”
‘Litigator in chief’
In a recent court document, the association pointed out that Waldman called himself “litigator in chief” during his four years as board president. But his 2018 departure as president came in an unrelated spat: His fellow board members refused to let him replace a partial wall with floor-to-ceiling glass to expand the glistening view of the Intracoastal Waterway and Palm Beach.
While Waldman, 77, played an oversized role in the lawsuits that redefined the relationship between the condo and the marina, he won’t talk about his work.
Since he left the board, he has filed the defamation suit and defended himself against a stalking suit filed by a board member. In a court filing he wrote he is subjected to “scorn and ridicule” in the building, and his “every move” is scrutinized.
“My significant other of 17 years,” he wrote, visits infrequently and “does not use the lobby or walk through it because she feels so uncomfortable.”
Waldman grew up in Brooklyn, served as a combat helicopter pilot in Vietnam and became a successful developer in Washington, D.C.
He came to Waterview in December 2011, when he and his partner, Linda Priscilla, paid $385,000 for a penthouse unit. He added a second unit six years later under a company he controlled called Brookland Square.
Brookland paid $1.7 million for that unit in February 2018 and sold it for $2.2 million 14 months later.
Unanimous approval required
While the condo board’s letters in November 2018 led Waldman to sue for libel, he sued the board again when it tried to make a change to the original, foundational document creating the condominium.
The change, he argued, would have cut him and Bennett, whose 2014 lawsuit to block a hotel started years of litigation, from having a say in an action needed to execute the settlement.
Instead of requiring the approval of 100 percent of the condo owners to make any changes to the condo’s foundational documents, the board proposed instead allowing changes with just 80 percent of owners’ approval.
The March 2019 vote passed with 127 units in favor, two failing to vote and three against — two units owned by Waldman and one by Bennett.
Waldman and Bennett sued, saying the board’s assertion that it could change the condo’s structure without approval of 100 percent of the residents defied condominium law.
In July, Palm Beach County Circuit Judge Glenn Kelley backed their arguments, handing Waldman and Bennett a huge victory by invalidating the lopsided condo election.
But he allowed other elements of the suit to live on.
Prescient city attorney?
Fifteen months after the marathon mediation session, the settlement document went public when Mayor James asked city commissioners to approve it.
That didn’t happen.
James pulled the item from the Sept. 23, 2019, agenda, telling commissioners he would schedule a closed session instead. That session still has not been held.
But first, some members of the public and some commissioners weighed in at the meeting, the only public discussion the proposed settlement has had.
Scott Holtz, a resident who has run unsuccessfully for Port of Palm Beach commission, said he couldn’t fathom the city’s willingness to accept the settlement.
“I scratch my head and wonder what could possibly be going on here where you’re in a situation where you’re not only giving away public land, you’re paying for the privilege of doing so, and all you’re getting back in return is partial access to something you’re giving up in the settlement,” Holtz said. “That whole thing doesn’t wash.”
Commissioner Kelly Shoaf asked City Attorney Kimberly Rothenburg why the city is settling with a developer who has not sued. The settlement, Rothenburg said, would “resolve not only pending litigation but also threatened litigation.”
Two months later, she appeared prescient.
‘For reasons we cannot fathom’
Instead of the closed session, commissioners got individual briefings, which are not covered by state open meeting laws. In addition to briefings by staff, several commissioners met with Cheryl Chase, the Connecticut-based head of marina owner Leisure Resorts, who visited the city in November 2019.
In two follow-up memos, Chase did not mince words.
Giving the condo residents their land now, as proposed in the settlement agreement, avoids “the unseemly and politically disastrous prospect” in 2073 — when the city would retake the land under the existing 99-year lease — “of evicting all 134 of the then-unit owners from the property.”
She made the case for commissioners to pay $2.5 million for the sidewalk, giving credibility to the main allegation in the marina lawsuit that the city doesn’t own the sidewalk so it couldn’t legitimately lease the docks to Leisure Resorts.
“The purchase … would forever end any and all further attempts to litigate issues of who controls access to the water, or riparian rights, the public’s right to use and enjoy the walkway, as well as any other associated issue.
“If the issue of riparian rights is adjudicated in court and determined against the city, the result would be disastrous for the city, costing it tens of millions of dollars.”
If the city rejects the settlement, “although it pains us to do so given how much we have invested in our relationship,” the city, she wrote, can count on a $120 million lawsuit based on reimbursement for the $20 million expansion and the marina’s $100 million value.
Despite walking commissioners through the site’s history, she wrote in the Nov. 18 letter, “For reasons we cannot fathom, we have been unable to impress upon you the severity of the financial exposure and other negative consequences the city faces should you delay or fail to approve this settlement.”
And turning on the city attorney, who Chase wrote “is not being realistic about the various costs and risks that the city faces,” Chase called the current legal issues “the product of past mistakes and miscalculations by the City Attorney’s Office.”
‘Whole case boils down to ... Waldman’
Five ongoing lawsuits, including the suit over control of the marina, had been frozen to give Waterview and Leisure time to prove their case that Waldman and Bennett must be forced by the court to accept the global settlement.
In May 2020, the association dropped the freeze, saying it did so because the city had not yet approved the settlement.
But Leisure didn’t follow through on its threats to sue the city.
Instead, it trained its legal might on Waldman.
“There’s no point in going after the city right now,” said Leisure attorney Gerald Richman, who joined the litigation in March. “That’s not our main focus.”
“Right now, really, the whole case boils down to fighting against Waldman.”
The condo board is pursuing him as well.
“The Waterview association feels like it made an agreement to settle all of this and wants to close on that deal with the parties,” attorney Mike Levin said. “It’s a very complicated dispute. That’s why the resolution is in everybody’s best interest.”
If a court compels Waldman and Bennett to accept the settlement, Richman is confident the city will accept it as well.
Mayor James wouldn’t comment on issues surrounding the case but his office said “the city remains willing to work toward amicable resolution of all pertinent pending litigation.”
Waldman’s lawyer insists the litigation will not force Waldman to sign.
Now that a judge has thrown out the condo vote because less than 100 percent of the owners approved it, Waldman is asking the court to throw out the remaining arguments posed by Leisure and Waterview.
Among those, the condo association argues that Waldman and Bennett gave up their decision-making role years earlier when the condo board agreed to pay for the lawsuits and protect them from liability, leaving sole decision-making authority in the hands of the board.
But it’s ludicrous to say Waldman and Bennett would have no say in a settlement, Waldman’s attorney, Dan Rosenbaum, argued. What if, for example, the settlement required Waldman to pay millions?
The bottom line is that all the arguments depend on whether the June 2018 “global settlement” is actually a settlement, he said.
Calling it “an agreement to agree in the future,” Rosenbaum pointed out in an October filing that it can’t be final because the city never signed it. And it can’t be enacted if 100 percent approval of the condo owners is required to make changes in the condo’s structure because Waldman and Bennett won’t vote for that.
To Richman, Waldman just wants to hang on to power.
“I hate to call it a vendetta, but it’s like a vendetta to him,” Richman said. “I think he’s on a power trip, enjoying it.”
To Rosenbaum, a victory for Waldman is a restored reputation.
“He feels he’s been wronged,” Rosenbaum said. “The character issue has transcended the whole issue.”
Facing Waldman’s motion for summary judgment, which, if granted, would send the case careening into the appellate courts, the attorneys sat down with Waldman this month for a two-day deposition.
Two days weren’t enough.
On Nov. 16, after the second eight-hour day, Richman said, a third day would have to be scheduled. And his side wants to depose other condo owners who voted against the rule change, pushing a planned Dec. 7 hearing into the new year.
Waldman has countered by asking the judge to rule only on whether the global settlement is indeed a settlement, which would speed up the outcome.
As the lawyers pursue that case, the marina suit, which once held so much promise for Waterview residents, remains in limbo, no longer pressed by the condo association as they push for a “global settlement” that would make it all moot.