Attorneys for the boathouse owners, who are the defendants in the case, filed a motion on Oct. 16 for final judgment as to all counts.

“Because the Town lacks the ownership interest it claims … it cannot prevail on any of its causes of action for Eviction, Breach of Contract, or Ejectment. Defendants are entitled to final summary judgment as a matter of law,” the defendant’s motion reads. 

But, in the town’s motion filed Oct. 22, its attorneys argued for a rehearing on the basis that Jordan’s Oct. 7 orders were a “definitive ruling on issues not before the Court through any pending motion, and therefore, are both procedurally improper and violate due process.”

The town’s attorneys added that if an evidentiary hearing — in which only evidence is recorded by a court or a bench trial, a trial by a judge as opposed to a jury — were to be held, then “the Town would show through substantial evidence that the Orders are erroneous on the merits.”

One notable dispute made by the town’s attorneys claimed Jordan’s orders are in part based on what they consider a “fundamental fallacy” pertaining to the Florida Department of Environmental Protection (FDEP) and its involvement in determining the town’s ownership, or lack thereof, in the disputed property area.

In recent months, both sides’ arguments have centered on whether the bottom of the lagoon beneath the structures is privately owned or state-owned. 

Richard Malloy, senior program analyst in the FDEP's Division of State Lands, had affirmed in a letter dated Jan. 29, 2024, and in his March deposition that the state does not own that land.

The town’s view is that the FDEP did not, in fact, make any such determination.

The town’s attorneys argued that “title opinion letters such as Mr. Malloy’s are not an agency action under Florida Statutes 120,” and that when Malloy was asked to look at the area plat and determine whether the right of way ever came into contact with the ordinary high-water line of Lake Butler, he said he “wouldn’t be able to opine on that.”

Therefore, the town’s attorneys claimed, the possibility of the town's right of way coming into contact with ordinary high water line would still be an issue that the court would have to determine. 

Additionally, the town alleged that the court “improperly weighed evidence to make findings on disputed issues of fact” and “misstatements of facts” when it ruled on the order of riparian rights.

The town said that the court relied on the defendants’ presentation of evidence as to when the boathouses were built, whether the lagoon was manmade and that the town didn’t seek control of the boathouses until the 1980s. For example, Windermere’s attorneys said the town “asserted” that it had been regulating the boathouses “since at least 1928.”

“In conclusion, the Riparian Rights Order is the result of misrepresented testimony that was clearly contradicted by the record. That testimony led to the erroneous conclusion that the Town had no claim to riparian rights or any other rights to the area,” the plaintiff’s motion reads.

In its conclusion, the plaintiff’s motion had requested that the orders be “reconsidered and vacated.”

However, since its request for a rehearing was denied, the town’s only recourse may be to appeal the judge’s final decision within 30 days after it’s issued.

Some residents are against the town continuing the lawsuit. A recent closed door meeting between the town council and its attorneys to discuss “settlement negotiations and strategy related to litigation expenditures” attracted protesters, who called for an end to the “lawsuit that refuses to die.”

A hearing on final judgment is scheduled for Nov. 13.