HomeMy Public PortalAboutMotion for Summary Judgment (11/30/15)Filing # 34969935 E -Filed 11/30/2015 04:56:24 PM
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CASE NO. 502014CA004631XXXXMB-AE
TOWN OF GULF STREAM,
Plaintiff,
vs.
CHRISTOPHER F. O'HARE,
Defendant.
MOTION FOR SUMMARY JUDGMENT
Plaintiff/Counter-Defendant, TOWN OF GULF STREAM ("Town"), by and
through its undersigned counsel and pursuant to Florida Rule of Civil Procedure 1.510,
hereby moves this Court for summary judgment in its favor against Defendant/Counter-
Plaintiff, CHRISTOPHER F. O'HARE ("O'Hare"), on O'Hare's Counterclaim for
Declaratory Relief, on the grounds that there is no genuine issues of material fact. In
support thereof, the Town states:
1. The Town is the fee owner of the following property located in Palm Beach
County, Florida, by way of quit claim deed:
Beginning at the intersection of the easterly right of way line of the
Intracoastal Waterway with the east and west quarter section line of
Section 4, Township 46 South, Range 43 East, thence North
11"36'46' East along said easterly right of way line, a distance of
507.37 feet to an angle point in said right of way line; thence North
5"25'43' East along said right of way line, a distance of 615.98 feet
to the point of beginning and the southwest corner of the parcel of
land herein described; thence continue along the same course
along said easterly right of way line North 5"25'43' East, a distance
of 1000 feet; thence easterly at right angles to said easterly right of
way line, a distance of 703.42 feet, more or less, to a point 30 feet
east of the northerly extension of the west line of Polo Drive as
shown on Replat of Port Gulf Stream Properties, recorded in Plat
Town of Gulf Stream v. Christowher F. O'Hare
Case No, 502014CA0040731XXXXMB•AE
Motion for Summary Judgment
Book 18, Page 98, Public Records of Palm Beach County, Florida;
thence southerly, parallel to, and 30 feet east of, the northerly
extension of the west line of said Polo Drive, a distance of 482.85
feet, more or less, to a point in the north line of Lakeview Drive as
shown on said plat; thence westerly along the north line of said
Lakeview Drive, a distance of 30 feet, thence southerly along the
west line of said Polo Drive, a distance of 370.16 feet to the
beginning of a curve concave to the west and having a radius of
124.09 feet; thence southerly along the arc of said curve, and along
the west line of said Polo Drive, a distance of 55.79 feet to a point
of reverse curvature; thence southerly along the arc of a curve
concave to the east and having a radius of 145.13 feet and along
the west right of way line of said Polo Drive, a distance of 64.76
feet to the end of said curve; thence southerly along the tangent to
said curve and along the west right of way line of said Polo Drive, a
distance of 31.12 feet to a point in a line running east from the point
of beginning at right angles to the easterly right of way line of said
Intracoastal Waterway; thence westerly along said line, a distance
of 635.08 feet, more or less, to the point of beginning.
(hereinafter referred to as "Polo Cove").
2. O'Hare is the owner of a boat with the registration number #FL 6948X
("Vessel").
3. The Town seeks summary judgment in its favor on O'Hare's Counterclaim
for Declaratory Relief. Specifically, the Town seeks summary judgment that:
a. The waters of Polo Cove are not "waters of this state" as that term
is defined in Florida Statute Section 327.02(40);
b. The waters of Polo Cove are not "navigable waters"; and
C. The Town has jurisdiction over the waters of Polo Cove.
4. The Town is entitled to summary judgment in its favor on O'Hare's
Counterclaim for Declaratory Relief for the following reasons:
a. Polo Cove is private property, owned by the Town.
2
Town of Gulf Stream v. Christopher F. O'Hare
Case No. 502014CA0040731XXXXMB-AE
Motion for Summary Judgment
b. As the fee owner of Polo Cove, the Town is entitled to regulate the
access and use of Polo Cove.
C. Prior to 1924, Polo Cove was terra firma, or dry land.
d. Between 1924 and 1932, Polo Cove was dredged and converted
into an artificial body of water.
e. Polo Cove does not meet the criteria of "waters of this state," as
defined in section 327.02(40), Florida Statutes.
f. The waters of Polo Cove are not "navigable waters" because the
waters of Polo Cove were not navigable in 1845, the date Florida
became a state.
g. The Florida Vessel Safety Law does not apply to Polo Cove
because the waters of Polo Cove are not "waters of this state."
5. The Town relies upon the pleadings filed in this action in support of this
6. This motion is supported by the following documents, which have been
filed with the Court in a reduced -size prior to or contemporaneously with this motion.
Certified copies of these documents, in their original -size, will be presented to the Court
at the hearing on this motion:
a. National Oceanic and Atmospheric Administration Nautical Chart
3260, 24th Edition, Print Date 4/23, (3260-4-1924); and
b. National Oceanic and Atmospheric Administration Nautical Chart
3260, 32nd Edition, Print Date 4/27 (3260-4-1932).
3
Town of Gulf Stream v. Christopher F. O'Hare
Case No. 502014CA0040731 XXXXMB-AE
Motion for Summary Judgment
7. A Statement of Undisputed Material Facts and a Memorandum of Law will
be submitted within the timeframe required under the Florida Rules of Civil Procedure
and the local practices of this Court.
WHEREFORE, the Town of Gulf Stream respectfully requests that this Court
grant summary judgment in its favor on O'Hare's Counterclaim for Declaratory Relief,
and grant such other relief as deemed just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by the E -Filing Portal to: Louis L. Roeder, Esq., 7414 Sparkling Lake Road,
Orlando, FL 32819 (eservice2015(a)gmail.com; lou cDlouroeder.com) on this 30th day of
November. 2015.
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
Attorneys for Plaintiff
505 S. Flagler Drive, Suite 1100 (33401)
P.O. Box 3475
West Palm Beach, FL 33402-3475
(561) 650-0458 [Telephone]
(561) 650-5300 [Facsimile]
By: /s/James C. Gavigan
John C. Randolph
Florida Bar No. 0129000
James C. Gavigan, Jr.
Florida Bar No. 0085909
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