The residents’ motion was filed the day before town council members unanimously approved a resolution hiring law firm Shutts & Bowen to conduct an “initial assessment of the viability” of Windermere’s appeal and potentially further prosecution of the boathouse “controversy.” 

Both sides are currently scheduled to appear Feb. 25 for virtual mediation before mediator and retired Circuit Judge Frederick Lauten.

No resolution, no vote

The filing alleges that Windermere Town Council made its decision to appeal the Ninth Circuit Court’s ruling in a private meeting — a violation of state Sunshine Law. Knowingly violating Sunshine Law is a second degree misdemeanor, punishable by $500 fines.

As the motion outlines, per section 9.02 of the town charter, Windermere's town attorneys are authorized to prosecute or defend lawsuits by resolution of the town council; they have no authority to act on their own, say, to appeal a decision that was not decided in the town's favor. For the town attorney to have appealed the Ninth Circuit Court's decision, a resolution or a vote from the town council would have been required first.

The motion claims there was no resolution; no public vote held to green light the appeal. Speaking at the Dec. 9 town council meeting, both Mayor Jim O'Brien and Town Attorney Heather Ramos from the law firm GrayRobinson said the council did not vote on the decision to appeal.

Still, even if the town council had voted to approve the appeal, the motion states, “it had to have done so in the dark and hidden from public view — there is no public record of any Town Council (sic) resolution or vote authorizing this appeal."

A private vote, a vote "in the dark," would be invalid, the motion states, and would violate Sunshine Law, which says that formal actions like resolutions are only binding if taken at a public meeting in which reasonable notice was given. In other words, whatever the town council may have done privately is not only unenforceable, it’s void ab initio — Latin for "never existed." 

Absent a public resolution, according to the motion, the town council and town attorney also lack standing to bring an appeal.

“This appeal was not brought by the real party in interest — the Town of Windermere,” the motion states. “To be brought by the Town of Windermere, a public resolution of the Town Council was required per the Windermere Town Charter and Florida’s Sunshine Law. Without that public authorization or consent, this appeal is effectively being advanced by a few unidentified members of the Town Council and the Town Attorney.” 

This isn't the first time Windermere's town attorneys bypassed the resolution process in this particular lawsuit. The lawsuit was filed in July 2022 without a resolution authorizing it. It wasn't until September 2022 — after the Fishback Dominick attorneys argued that the lawsuit was invalid without it — that the town council unanimously passed a resolution to authorize its filing. At the time, Ramos, downplayed the town council vote as not "necessary," but merely "tidying up the record."

"Strategies about how to proceed"

Under Florida Statute 286.011(8) attorneys for government bodies can meet privately, but discussions are restricted to settlement negotiations and strategy relating to litigation expenditures. “Such meetings should not be used to finalize action or discuss matters outside these two narrowly prescribed areas,” the motion states. "Authorization of an appeal is precisely the type of significant 'formal' or 'decisive' action that falls outside section 286.011(8)(b)’s 'strict parameters' and must take place in public."

On Oct. 30, town council members held a closed-door session, or “shade meeting,” with the town attorneys from GrayRobinson. In that meeting, the agenda stated that attorneys sought the council’s advice on settlement negotiations and litigation strategy regarding expenditures. On Nov. 18, there was another shade meeting. On Nov. 26, the town filed its appeal.

At the Dec. 9 town council meeting, Doug Fay, who owns one of the boathouses with his brother Gerald Fay, directly asked the council members who made the decision to appeal. He said he didn't know what was taking the lawsuit "to the next step" when "the judge made it very clear it was resolved."

O'Brien replied that the council directed staff and the legal team to proceed.

Here, the motion to dismiss zeroes in on an apparent disagreement among council members about whether to appeal at all. While council members have been reticent about who was for the appeal and who against, comments made at the Dec. 9 town council meeting make clear the decision was not unanimous.

Council Member Tom Stroup was adamant that the appeal decision not be characterized as a "council decision."

"You would have to ask each person what their thoughts are on it,” he said, responding to Fay's question. “You can't say that the 'council decided' because there was a lot of discussion and objection, so it was not the council that decided.”

When Fay said he thought it was “weird” that council members hadn’t had any say in the decision to appeal, Stroup corrected him.

“We did have a say in it," he said. Stroup then turned to look at his fellow council members. "We can't act like we didn’t have a conversation about this when you’ve got a citizen asking us who decided on what would go forward here — I think he has a right to ask.”

"There were strategy discussions about how to proceed," Ramos, the town attorney said. "And that's really all that we would really like to say. But there was no vote taken so it wasn't a unanimous discussion. But there were strategies about how to proceed."