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The dispute over who will own a portion of Windermere's shoreline is nearing resolution. Attorneys representing the town of Windermere filed its answer and defenses Aug. 15 in the Lake Down lawsuit with the Ninth Judicial Circuit Court. As soon as the court acknowledges this filing, attorney Rick Mitchell said, his office would file for a summary judgment.

In June, the Windermere Town Council voted to reject mediated settlements in two lawsuits brought by residents, who are suing to gain title to shoreline easements between their properties and the edges of lakes Bessie and Down.

During the same council meeting, the town hired the Orlando law firm of Gray Robinson to represent it in both suits.

Attorney Mitchell of Gray Robinson told The West Orange Times that his firm was responding to the Lake Down plaintiffs' allegations last week with affirmative defenses, which specify that "private citizens can never adversely possess public land."

At the council's direction, the Gray Robinson legal team is preparing a motion for summary judgment in the Lake Down case, according to Mitchell, and expects a date for a hearing will be set within the next 30-60 days, depending on the court's calendar.

In a summary judgment, the court examines the undisputed facts in the case and makes a determination based purely on the law which side is entitled to the judgment.

Town Attorney Cliff Shepard explained Tuesday that the court can render a full or partial judgment.

Mitchell, the town's attorney in the lakefront case, said he believes a judge can rule on the case as a matter of law without the need for spending more taxpayer dollars on a trial.

In the Lake Down case, Mitchell explained that when the plaintiffs purchased their properties along the shore of Lake Down their deeds conveyed specific platted and numbered lots that were contained in the plat of the town and that those deeds did not include any portion of Lake Street, which runs between the platted lots and the shoreline of Lake Down.

During the June council meeting, attorney Howard Marks, who represents the Lake Down plaintiffs, argued the town does not own the land, and while it might have been platted as a road in the 1920s, the town never accepted the dedication.

"At best, Š your may have a right-of-way, a fee-simple interest," said Marks at the earlier meeting. He also referred to an appraisal paid for by the town that states "the land is under water most of the year" and not suitable for use as a park or to build a road.

Windermere's arguments stress that the plaintiffs are attempting "to extinguish the public's right to use and enjoy Lake StreetŠfor their own personal gain by converting their lakeview lots to more valuable waterfront lots."

In the Lake Bessie lawsuit, Mitchell said the plaintiffs have filed a motion to amend their complaint, which has not yet been ruled on by the court. He said the town has consented to the motion, and once the court responds, Mitchell said, his firm intends to answer the complaint and move for a summary judgment, just as in the Lake Down case.

Mitchell said the Lake Bessie case would include the same defense that is also based primarily on the "overarching law" that "private citizens cannot adversely possess public land."

Mark Leavitt, the attorney for the Lake Bessie plaintiffs, is equally confident in his case.

In an interview with the Times last week, the attorney referred to an opinion by Assistant State Attorney General Lagran Saunders in June 2004, which he believes confirms his clients' ownership of the lakefront property.

"The AG opinion said the underlying ownership was my clients," Leavitt said. "The town's interest is moot - it's not an interest."

Town Attorney Shepard interpreted the AG's opinion for the council last July. He wrote: "The town does not own the right-of-way in 'fee simple.' A 'fee simple' interest is one in which the owner controls all ownership interest in the property in question. Instead, based on the manner in which the town obtained the right-of-way, through a recorded plat with no specific dedication language, I believe the town's interest is akin to an easement which includes reversionary rights should the town choose to abandon said right-of-way."

Leavitt said he proposed several settlement points to the Gray Robinson attorneys.

And attorney Tom Wilkes of Gray Robinson said his firm responded with their own settlement points.

After exhausting efforts to resolve the lawsuit, Leavitt said, his firm amended the clients' complaints and is now waiting to hear back from Windermere's attorneys.

Leavitt argues that since "there is no specific dedication on the plat as to the reversionary interest in the subject property," thenŠ "[it] reverts to the abutting lot owners."

"The town hasn't needed the property for 80 years," said Leavitt. "If they win, they have something they have no desire or use for."

Town lawyer Mitchell said he is eager to get a court date set because the suit "is consuming scarce taxpayer dollars." At the June council meeting, he had originally predicted that the hearings for summary judgments in both cases would be scheduled in about 60 days.

He explained that the cost to the town is no greater even though preparation time has been longer than anticipated.

Mitchell had committed the law firm to a fee of $200 per hour when the council hired Gray Robinson at the June council meeting. Later, the firm agreed to cap its costs.

"We have confirmed with [Town Manager] Cecilia Bernier, probably several weeks ago, that our fees would not exceed $25,000 up to the point of the hearings on the summary judgment motion. So that is where our fees stand," said Wilkes on Friday.

Bernier said this week that she has this agreement in writing and that it covers both lawsuits.

She also explained that the town budget for Fiscal Year 2005-06 has a line item of $100,000 for special legal fees in the event the lawsuits go to trial or appeals are filed after the court rules on the summary judgment motions.

The Lake Down case is assigned to Judge Cynthia McKinnon, and the Lake Bessie lawsuit is set before Judge Janet Thorpe.