You have just bought a new business. As you review the business operation for the first six months you have questions about a monthly payment in the amount of $98,630.00 that, for whatever reason, you don’t believe you should be paying. Your lawyer issues an opinion, based on another legal opinion that is over six years old. The six year old opinion, although answering questions about the issue, avoids any discussion about litigating it and is very careful to avoid saying that there is no recourse against making the payments. Your lawyer, without mentioning litigating the issue, cites that opinion and says you have to continue making payments which amount to $3,288.00 per day, $98,630.00 per month, and $1,200,000.00 per year.
From here on out the words “You” and “Your” followed by an “*” refers to all members, past and present, collectively and individually, as appropriate, of the Tourism Community Enhancement District’s (TCED) board of directors.
IF IT WAS YOUR* MONEY BEING SPENT EVERY MONTH:
1. Would you* have blithely accepted that and kept on paying $3,288.00 PER DAY without taking a serious look at litigating the issue? To date, the fact that you* did not has cost the Branson marketing effort over $8,400,000.00 in direct marketing funds and over $630,000,000.00 in marketing and economic benefits that it is estimated those funds could have generated.
2. Would you have continued paying based on the opinion of an attorney who did not recognize the difference between “dicta” and something that was “central to the logic of statutory construction” used by the Missouri Supreme Court in “Jefferson v. QuikTrip?” (In general terms, “dicta” is extraneous “BS” written into a decision by a judge that has nothing to do with the basis for the decision.)
3. Would you continue to use the services of any attorney, in this matter, who cites “Jefferson v. QuikTrip,” as the basis for being required to make the payments while calling something that was central to the logic the court used in deciding the case and, very specifically, serves as the basis for why the payments do not have to be made as “dicta?” Is an Ole Seagull the only one concerned about how the legal opinions throughout the last eight years have conveniently ignored this fact? It’s the mathematical equivalent of leaving the first “1” off and saying “1 = 2.” No “1 = 1” and “1+1=2.”
4. Once given information showing that litigation had been “taken off the table from day one” and the information on the decision of the Missouri Supreme Court in the “Jefferson v. QuikTrip” case, would you have elected to keep on paying $3,288.00 PER DAY over the last 15 months, a total of an additional $1,479,452.00 and counting, by dragging your* feet, and requesting yet another attorney’s opinion or would you* have stopped “writing the check” until the issue was resolved?
An Ole Seagull just has to believe that the answers to the above questions, in order would be “No,” “No,” “No,” and “Yes.” The question then becomes, “Why are you* not treating Branson’s marketing funds with the same respect, business acumen and logic that you* would use if they were your funds?”
That’s almost a rhetorical question to the Ole Seagull because, in his heart of hearts, he believes that from day one the evidence shows a pattern establishing that you* intended to avoid litigation, even as you* are doing now, including the question submitted to the attorney general, in both form and in action, because you* do not now or did you ever want to stop the payments.
“Seagull, one could get the impression that you believe that the board has breached their fiduciary duty and actually wants the marketing money to be paid on the city of Branson’s TIFs rather than used for its statutory purpose and what the voters approved it for, ‘marketing.'” “It’s possible some could get that impression. However, only a formal investigation, by someone a lot higher up the political food chain than an Ole Seagull could determine why millions of dollars in Branson’s marketing funds have been diverted from that purpose when, from the very beginning, the means to prevent it have been present, are as obvious the fact that ‘1’ doesn’t equal ‘2,’ and, he believes, as most recently evidenced by the boards actions since March of 2014, have intentionally been ignored at the cost of about $3,288.00 per day.”