Group Title: Historic St. Augustine: Seawall
Title: Supplemental Motion for Summary Judgment
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Permanent Link: http://ufdc.ufl.edu/UF00095518/00010
 Material Information
Title: Supplemental Motion for Summary Judgment
Series Title: Historic St. Augustine: Seawall
Physical Description: Financial/tax/legal record
Language: English
Publication Date: 1993
Physical Location:
Box: 8
Divider: Seawall
Folder: Seawall
 Subjects
Subject: Saint Augustine (Fla.)
Seawall (Saint Augustine, Fla.)
Spatial Coverage: North America -- United States of America -- Florida -- Saint Johns -- Saint Augustine
Coordinates: 29.888145 x -81.309125
 Record Information
Bibliographic ID: UF00095518
Volume ID: VID00010
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text
IN THE CIRCUIT COURT, SEVENTH
JUDICIAL CIRCUIT, IN AND FOR
ST. JOHNS COUNTY, FLORIDA

CASE NO. 92-754-CA
DIVISION: A


HENRY WHETSTONE AND
ESTHER WHETSTONE,

Plaintiffs,::

VS. --*

MARGUERITE S. CONNELL AND
CARL WAYNE CONNELL, SANTA
MARIA, INC., AND FRANK USINA,

Defendants. co



SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT

Defendants, CARL WAYNE CONNELL and MARGUERITE S. CONNELL,

SANTA MARIA, INC., AND FRANK USINA (the "Defendants"), upon

stipulation with HENRY WHETSTONE AND ESTHER WHETSTONE (the

"Plaintiffs"), supplement their previous Motion for Summary

Judgment against the Plaintiffs, pursuant to Rule 1.510, F.R.Civ.P.

The grounds upon which this motion is based and the substantial

matters of law to be argued are as follows:

1. The pleadings, affidavits, and exhibits on file together

with the previous motion for summary judgment filed by the

Defendants, including the affidavits attached to this motion,

demonstrate that there is no genuine issue as to any material fact

as to the matters set forth in that original motion or those set

forth herein, and that Defendants are entitled to summary judgment

as to the subject issues as a matter of law.

7 12...-





2. Plaintiffs failed to allege that any original conveyance

by the Spanish Crown in the chain of title to Lot 2, Block 21, St.

Augustine ("Lot 2"), was ratified or confirmed by the United

States. Therefore, Plaintiffs have not established an ownership

interest sufficient to bring this action against the Defendants.

Additionally, Plaintiffs allege an unrecorded conveyance, an oral

conveyance, and an unrecorded inheritance in their chain of title.

These unsubstantiated conveyances do not sufficiently support

Plaintiffs' claim of ownership in Lot 2 to grant Plaintiffs

standing to bring this action against the Defendants.

3. Plaintiffs allege "that the legal description in their

deed extends only to the right-of-way line of the street." The

legal description in Plaintiffs' deed conveys title to Lot 2, "as

per [the] official map of said City now on file in the County

Clerk's Office of St. Johns County, Florida, dated January 1,

1905." The Official Map of the City of St. Augustine, which is

cited in Plaintiffs' deed, and a copy of which is attached as

Exhibit "A" to Defendants' original motion for Summary Judgment,

shows that Lot 2 ends at the right-of-way of Avenida Menendez. The

Property Appraiser's Map, a copy of which is attached as Exhibit

"B" to Defendants' original motion for Summary Judgment, also shows

that Lot 2 ends at the right-of-way of Avenida Menendez, and

moreover, that the Plaintiffs do not pay ad valorem taxes on the

land east of the right-of-way of Avenida Menendez to the mean low

water line, which land is shown as owned by the City of St.

Augustine (the "Disputed Land"). Plaintiffs' claim of ownership to





the Disputed Land is inconsistent with the legal description in

their deed, the Official Map of the City, the Property Appraiser's

Map, and their failure to pay ad valorem taxes on this property.

The above-noted documents and Plaintiffs' own actions show that

Plaintiffs' ownership interest in Lot 2 extends only to the right-

of-way of Avenida Menendez and not to the mean low water line of

the Matanzas River. Therefore, Lot 2 is not a riparian lot and

Plaintiffs have no standing to bring this action against

Defendants.

4. Plaintiffs allege that they gained title to the Disputed

Land "by operation of law". However, Florida law provides that

when property is conveyed with reference to a map or plat, the

lines indicated on such map or plat are conclusive on the parties,

and these lines constitute the legal description under which the

grantee takes title. Because the lines on the Official Map of St.

Augustine show that Plaintiffs' ownership interest in Lot 2 extends

only to the right-of-way of Avenida Menendez and not to the mean

low water line of the Matanzas River, Lot 2 is not a riparian lot

and Plaintiffs have no standing to bring this action against

Defendants.

5. Plaintiffs' chain of title, attached as exhibits to their

first Complaint filed in this case, and incorporated by reference

in their most recent Complaint, shows that prior to January 1, 1905

(the date of the Official Map of the City of St. Augustine), the

property now known as Lot 2 was conveyed by metes and bounds legal

descriptions. The only legible metes and bounds conveyances





attached as Exhibits to Plaintiffs' Complaint, include the deed

dated September 2, 1898, from Hager Kerr to David W. Roberts,

recorded in Deed Book 2, page 65 of the public records of St. Johns

County, Florida, attached to Plaintiffs' Complaint as Plaintiffs'

Exhibit 5 and the deed dated April 17, 1901, from David W. Roberts,

joined by his wife, Ethel A. Roberts, to Barbara Carcaba, recorded

in Deed Book 2, page 317 of the public records of St. Johns County,

Florida, attached to Plaintiffs' Complaint as Plaintiffs' Exhibit

6. The legal descriptions in both deeds provide that the property

conveyed is "bounded on the North by the lot of Pinkham,... South

by land of Carcaba and East by Bay Street on which it fronts"

(emphasis added). Thus, the eastern boundary of the property now

known as Lot 2 was Avenida Menendez (f/k/a Bay Street), even when

it was conveyed by metes and bounds legal descriptions. Because

title to the Disputed Lands was never conveyed to Plaintiffs'

predecessors in interest, Plaintiffs' ownership interest in Lot 2

extends only to the right-of-way of Avenida Menendez and not to the

mean low water line of the Matanzas River. Therefore, Lot 2 is not

a riparian lot and Plaintiffs have no standing to bring this action

against Defendants.

6. Assuming arguendo that Plaintiffs or one of Plaintiffs'

predecessors in title had an interest in the Disputed Land, said

interest was abandoned long ago and title subsequently vested in

the City of St. Augustine by virtue of adverse possession. The

City declared its hostile, open, and notorious possession of the

Disputed Land by publication of the Official Map of St. Augustine,





dated January 1, 1905, which shows that the eastern boundary of Lot

2 is Avenida Menendez, not the Matanzas River.

7. Because the Official Map of St. Augustine, dated January

1, 1905, shows that the eastern boundary of Lot 2 is Avenida

Menendez, not the Matanzas River, this map constitutes a root of

title sufficient to vest title to the Disputed Land in the City

pursuant to the Florida Marketable Record Title Act ("MRTA").

Therefore, title to the Disputed Land vested in the City of St.

Augustine by virtue of the MRTA.

8. As to Counts I and II, Plaintiffs are not entitled to

injunctive relief or damages resulting from any alleged trespass.

The City of St. Augustine, pursuant to Section 9 Chapter 11148 of

the Laws of Florida, Special Acts of 1925, is the owner of the

lands of the Matanzas River below the mean low water line. The

Affidavit of Loren Jones, which is attached to this motion as

Exhibit "A", shows that all structures owned or operated by the

Defendants that the Plaintiffs allege encroach on Lot 2 are located

below the mean low water line of the Matanzas River. Any right to

injunctive relief or damages for trespass onto lands owned by the

City of St. Augustine lies solely with the City of St. Augustine.

The City of St. Augustine has specifically authorized the

Defendants' structures which were constructed on the lands of the

Matanzas River below the mean low water line. Therefore, an action

for injunctive relief or damages does not lie for any encroachment

by the Defendants onto this property.





WHEREFORE, the Defendants move that this Court find that there

is no genuine issue as to any material fact as to the issues

addressed herein as a matter of law and grant Defendants' motion

for Summary Judgment.



BRANT, MOORE, SAPP, MACDONALD
& WELLS, P.A.

By W aj2a,
Sidney F. AnsbacheU
Florida Bar No. 611300
William L. Finger
Florida Bar No. 854591
Suite 3100 Barnett Center
50 N. Laura Street
P.O. Box 4548
Jacksonville, FL 32201-4548
(904) 353-3100
Attorney for Defendants



CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing has been
furnished by U.S. Mail, postage prepaid to George McClure, Esq. 81
Kings Street, Suite A, St. Augustine, FL 32085 and Frank Upchurch,
Esq., 780 N. Ponce de Leon Blvd., St. Augustine, FL 32085 on the
ZZj_.day of October, 1993.

Attorney


26615





EXHIBIT "A"


AFFIDAVIT


STATE OF FLORIDA
COUNTY OF ST. JOHNS


Before me, the undersigned authority, personally appeared

Loren Jones ("Affiant") who after being duly sworn says the

following:

1. Affiant has personal knowledge of the matters set forth

herein.

3. Affiant is licensed as a surveyor by the State of

Florida.

4. Affiant conducted the survey of the elevations in the

Matanzas River in the vicinity of the Santa Maria Restaurant, St.

Augustine, Florida, attached to this Affidavit as Exhibit "A".

5. The mean low water line of the Matanzas River in the

vicinity of the Santa Maria Restaurant is seaward of the seawall

adjacent to Avenida Menendez.

6. No portion of the Santa Maria Restaurant, or its

associated structures, is located on land that is above the mean

low water line of the Matanzas River, except for part of the wood

pier leading from the seawall adjacent to Avenida Menendez and the

associated structures under the northwest corner of the Santa Maria

Restaurant.




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Sworn to and subscribed before me on this /91 day of
October, 1993, by Loren Jones, who is personally known to me or who
has produced crso_ _r__ k_ an oath.


NOTARY PUBLIC
Print Name: j,' I ,'. L- F,-t
Commission No: ]6N5'3- J
Commission Expires : DQo r -s 199 s

26540

WILLIAM L. FINGER
S MY COMMISSION # CC 154532 EXPIRES
October 23, 1995
<,, ODE fTHRU TROY FAIN INSURANCE, INC.




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