Boathouse owners’ attorney says it’s unfair his clients were deposed, while town officials are “too busy and important” to testify.
Ninth Circuit Judge Emerson Thompson, Jr. will hear arguments May 1 on whether the town of Windermere can shield current and former council members from depositions in a breach of contract lawsuit against the owners of five historic boathouses in Palmer Park.
The town’s attorneys, Summer DeGel and Nicholas Dancaescu of GrayRobinson in Orlando, filed a motion in early March to quash the subpoenas for the depositions, arguing that, under what is known as the “apex doctrine,” the mayor and council members should not have to testify because they are “high-ranking officials” and it “would be unduly burdensome."
Windermere operates under a manager-council form of government, with a town manager responsible for the daily operations. The mayor’s and council members' positions are unpaid and part-time. Mayor Jim O’Brien works full time in emergency management for CDR Maguire Inc., according to his LinkedIn profile. Council Members Loren “Andy” Williams owns and operates Lakeside Realty Windermere; Mandy David is president of JFD Communications, which provides sign language interpreting services; Tony Davit is a vice president at Universal Studios Florida; and Molly Rose is retired. Chris Sapp and Bill Martini — neither of whom serve on the council any longer — are realtors with local Windermere realty agencies.
The town initially also sought to block the deposition of Town Manager Robert Smith, but then allowed his deposition to take place. He is expected to testify today.
The lawsuit is over a lease agreement between the town and boathouse owners. The agreement was originally signed in 1985, extended in 2001, expired in 2021 and then extended again on a month-to-month basis until last March. That’s when the town council voted to terminate the leases, giving the boathouse owners 60 days to leave those structures. The town sued in July after they refused to vacate.
The defendants claim that they own the boathouses, which were built between 1910 and 1915 and pre-date the town itself, which was incorporated in 1925. According to the lease document — which states “Lessee owns a boathouse …” — the defendants apparently do. Plus, their attorneys argue that the Riparian Rights Act of 1856 and the Butler Act of 1921 “vested title to sovereign submerged lands upon the construction of any permanent improvement” such as a boathouse. At the time, the land was owned privately, not by the town, which hadn’t yet been established, the attorneys maintain.
However, the leases also contain a clause, which says that the owners will “surrender ownership and possession of the premises” to the town at the end of the lease. The boathouse owners claim, among other things, that the original 1985 lease was invalid and was signed under coercion. In October, they filed a countersuit that alleged Florida Sunshine Law violations since “There was no vote to commence or prosecute litigation against [the boathouse owners] or to bring any of the counts filed in the Town’s Lawsuit.”
The countersuit accused the town manager and town attorney of having “private discussions with two or more individual members of the Town Council regarding filing the Town’s Lawsuit and took action to file the Town’s Lawsuit based upon such private discussions with Town Council members.” It added that the lawsuit was filed before the town council passed a resolution giving the town attorney such the authority and that the town manager and attorney had private discussions with council members about the resolution before it was introduced and passed September 9.
Lonnie Groot, who specializes in government law, said Sunshine Law violations typically need to be more specific. “Normally you have to allege that Joe spoke with Sally. Or Sally called Jim. Or something like that,” he said in a phone interview. “You just can't say ‘they’ violated the Sunshine Law.”
The town’s motion to quash the depositions says that they aren’t necessary because the town turned over “all communications between the Town Officials for the past four plus years relating to the Boathouses.”
But that’s not how defense attorney Dan Langley of the Winter Park firm Fishback Dominick sees it. He has deposed Windermere Town Clerk Dorothy Burkhalter and plans to depose Cecilia Bernier, the town manager from 1991 to 2011, in the coming weeks. He said that if he’s prevented from deposing town council members, it would be unfair to his clients.
“All of the boathouse owners sat for depositions, but the town says the council members are too busy and important to sit for depositions in the lawsuits the town has filed,” he told VoxPopuli in an interview.
Langley particularly wants to depose Martini, who worked with George Poelker for four months on a lease extension that was ultimately voted down 3-2 by the town council. Poelker owns one of the two slips in boathouse #4. “Martini has material evidence,” Langley said.
DeGel, one of the town’s attorneys, said in an email that the town won’t comment on active lawsuits.