Hearing on motion to dismiss – City of Fernandina Beach vs Patricia C. Toundas

Salty Pelican 002Submitted by Susan Hardee Steger

On August 23, 2013, Judge Brian Davis, of the 4th Judicial Circuit heard arguments on a motion to dismiss a lawsuit between the City of Fernandina Beach and Patricia C. Toundas. The initial lawsuit was filed by the City to settle an ongoing dispute involving property located west of the Duryee building at the corner of Centre and North Front Streets.  The motion to dismiss currently before the court was filed by Attorney Daniel S. Brim on behalf of Toundas.

Brim argued the City’s initial suit to quiet title was not the proper vehicle to settle the dispute; rather, the filing should have been a declaratory judgement. Brim also argued  the City claims “they [City] own the property by virtue of an ordinance they passed [Ordinance 258] and the ordinance  itself is not a document of title.” According to Brim,”they [City] have to tell us they own it, and the only thing provided is a City ordinance [that] is not a document of title.”  Ordinance 258 was passed by the city commission in 1954 in order to  close a portion of North Front Street.

Salty Pelican 001
Portion of property is dispute.

Brim noted that Ordinance 258 is incomplete because of the lack of an “attached drawing.” The City, “does not show their claim of title to the real property” since it is not legally described in a survey. According to Brim, the court is asked to proceed with action to quiet title with a legal description that is “at best ambiguous.”

During the hearing, Judge Davis spoke to  the “deficiencies” of some of the records that exist.  “We have a very interesting record to work with in this case, but it won’t be the first time,” says Davis.

City Attorney Tammi Bach responded to Brim’s arguments acknowledging the property is “not legally described by a surveyor,” but stated that “it is a platted public street.” According to Bach, the title to the property is established  by virtue of the 1857 Plat map drawn by the Florida Railroad Company and “enacted” by the Florida Legislature as Chapter 932 Laws of Florida (1858).

Bach said the City was not asserting title through Ordinance 258, however, the ordinance contains specific language defining the exception of “a ten foot wide driveway paralleling the westerly sidewalk line of Lots 1, 2, 3, and 4 of Block No 1 of said City.”  The City’s written response notes the exception of the driveway in this ordinance “specifically” reserves a portion of the property “for the continued benefit of the public.”

“For years this has been an informal dispute and I thought it was time we brought it to you and we can all figure it out together,” says Bach.

In addition to Brim and Bach, defendant Patricia Toundas attended the hearing.  Attorney Joshua Woolsey, legal counsel for an adjacent property owner (Salty Pelican), and Arthur I. Jacobs attended as observers.

August 27, 2013 1:00 a.m.