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The Town of Windermere last week appealed a recent ruling that disputed its claims of ownership of five historic boathouses in the Palmer Park lagoon — prolonging a three-year lawsuit to evict 10 current and former residents from the structures. An appeals court is currently deciding whether to send the case to mediation.
On Nov. 19, Ninth Circuit Court Judge John E. Jordan issued a final ruling in favor of the residents, stating that they could not “be evicted or ejected from the boathouses for which they own and have the right of possession.” He also denied the town’s motion for eviction and breach of contract in his order.
Meanwhile, the town also sought the judge’s permission to file an amended complaint. According to Jordan’s order denying that motion, also issued on Nov. 19, the town had to prove “that it owned and had the right of possession to the boathouses.” Jordan said the town didn’t present anything new to change his mind, and also that it was “brought too late.”
With no apparent chance for a rehearing, the town appealed to the Sixth District Court of Appeals on Nov. 26.
The appeals court on Dec. 5 said in an order that it is reviewing the case “to determine whether it is appropriate for appellate mediation.”
The court’s mediation program seeks to resolve disputes “more quickly and less expensively than the appeal process” for litigants, according to the Sixth District Court of Appeal.
Under this program, an appellate court “screening” judge will select eligible cases in which both parties in a lawsuit must complete and file a mediation questionnaire, as well as a confidential statement establishing the issues involved in the appeal, and whether the mediation “would be helpful.”
The screening judge will then review both parties’ documents to determine if the case should be sent to remediation. If the parties successfully reach an agreement, the appellate court could dismiss the appeal, send the case back to the trial court to approve the settlement, if required, or issue an order reflecting the terms of the settlement.
If the mediation fails, the town’s appeal proceeds.
According to a recently filed transcript of the case’s Nov. 13 court hearing, the town’s attorney, Nicholas Dancaescu of the Orlando firm GrayRobinson, argued there were unresolved issues that the circuit court didn’t adequately consider in its ruling.
“The court's summary judgment order created more questions than it answered,” Dancaescu told the court. “And the ruling on the lack of riparian rights and the [Florida Department of Environmental Protection] doesn't own the bay, or isn't asserting ownership of the bay, begs a question — who does?”
In recent months, arguments from both sides centered on whether the bottom of the lagoon beneath the structures is privately owned or state-owned.
Richard Malloy, senior program analyst with the state environmental department, had affirmed in a Jan. 29, 2024, letter and in his March deposition that the state does not own that land. Town attorneys have disputed the state’s determination of its lack of ownership, arguing that opinion letters like Malloy’s are not an agency action under Florida statute.
To date, the Town of Windermere has spent $637,000 in taxpayer funds on litigation. However, it’s unclear why town officials are vigorously pursuing the case to gain ownership of the structures.
In his Nov. 19 order denying the town’s request to file an amended complaint, Jordan called the case “an expensive battle that has gone on long enough. Defendants are entitled to closure.”
