“Now, thirty-six years later and after multiple affirmations of those lease agreements, the Defendants refuse to live up to their end of the settlement and relinquish possession to the Town as required by the lease. They are in fact trying to re-assert and re-litigate the same claims that were dismissed by the Court back in the 1980s and resolved by the lease,” responded town attorney Nicholas Dancaescu of the Orlando firm GrayRobinson, according to court documents.

When the town first filed the lawsuit in July 2022, it had budgeted $85,000 for legal fees. Three years later, the town has spent at least $463,227 in its pursuit of the boathouses.

Arguments from both sides in the legal dispute have recently focused on whether the bottom of the lagoon beneath the structures is privately owned or owned by the state of Florida.

If the judge does not make a decision this week, the case will proceed with a pretrial conference scheduled for Oct. 13, followed by a trial to begin Nov. 17.

Defendants: Town has no ownership 

In their June motion for summary judgment, the boathouse owners, represented by the Winter Park law firm Fishback Dominick, argue that the town's claims of ownership — and the right to evict the owners from the boathouses — hinge on legal arguments that it can’t use: that the state owns the portion of the lake bottom underneath the structures. 

However, the boathouse owners say evidence from the Florida Department of Environmental Protection (FDEP) proves that's false. They say that Richard Malloy, senior program analyst in the FDEP's Division of State Lands, confirmed in a letter dated Jan. 29, 2024, that the state does not own that area of the lagoon.

“For the BOT [Board of Trustees of the Internal Improvement Trust Fund of the State of Florida] to own these lands the waters had to be navigable at statehood,” wrote Malloy. “… From my research of historic aerials and surveys, this cove has been hydrologically connected to Lake Butler, but there wasn’t a natural navigable connection. Therefore this cove does not meet its own navigability test for sovereignty. … it is very apparent that the cove is a separate waterbody from Lake Butler.” Malloy added that the BOT “would not assert sovereign ownership” over the cove or lagoon area. 

Malloy reiterated his opinion during his March deposition when Fishback Dominick attorney John T. Conner asked him if the lagoon was owned by the state. “No, I don’t believe it is,” he replied. 

Town: Eviction still stands 

In the town’s August response, its attorneys argue that the town does have the legal right to evict the boathouse owners despite the FDEP’s determination.

The town is arguing that the boathouse owners’ “theories have morphed throughout this litigation in constant attempts to avoid the basic fact that they are bound to adhere to the lease and the multiple reaffirmations through [lease] renewals executed by them in the intervening 36 years.” 

The town claims the boathouse owners have “consistently mischaracterize[d] the words and role” of Malloy and the FDEP, saying both have been “very clear” on the limits of their authority delegated to them by the BOT. Dancaescu pointed to Malloy’s March deposition to support the town's argument.

Specifically, the town argues that Malloy said that while he was “delegated by the board to make determinations on their behalf,” the decision of ownership is “ultimately” up to the courts. Dancaescu added that Malloy's view is "opinion" and not binding.

The town also maintains that the 1986 lease — which boathouse owners said they signed to avoid being sued by Windermere — “made clear the Town had the superior rights and owned the land and requisite rights.” 

“Defendants frame their most recent summary judgment motion as dispositive to the entirety of the lawsuit,” the town’s motion states. “However, they fail to address the simple fact that this lawsuit is brought under a valid contract signed and ratified multiple times by the Defendants and their predecessors.”