Their inability to serve the 1,194 landowners potentially impacted by the lawsuit since its Dec. 11, 2018, filing — even after being afforded several opportunities to find a way to do so — has spawned a motion to dismiss the entire case.

SANTA ROSA BEACH — Walton County’s attorneys have been bedeviled by citizen notification issues since before they ever filed a lawsuit seeking a declaration of customary use.


Their inability to serve the 1,194 landowners potentially impacted by the lawsuit since its Dec. 11, 2018, filing — even after being afforded several opportunities to find a way to do so — has spawned a motion to dismiss the entire case.


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"If you can’t file a lawsuit and not get all the people served in 14 months, you ought not to have filed a lawsuit," said Kent Safriet, the attorney who introduced the motion.


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Safriet said his motion to dismiss "for lack of service" could be heard as early as a scheduled March 2 case status conference. It calls for County Judge David Green, who is presiding over the case, to halt the lawsuit if the county has not served 1,194 landowners by that time.


"I intend to call it up if the judge lets me," he said.


Meanwhile, another motion filed in the lawsuit — through which the county wants to open its beaches to the public through a declaration of customary use — might raise more notification issues.


Attorney Will Dunaway has asked that one of his clients be excused from the case because the client, a man and woman listed as Gluck and Kirkland Properties, is moving away.


The motion raises questions about who the responsibility for notifying a party seeking to purchase the Gluck and Kirkland Properties might fall upon.


That question, which County Attorney Sidney Noyes declined to answer, is further complicated by the failure of the county to file a lis pendens.



"The purpose of notice of lis pendens is to alert creditors, prospective purchasers, and others to the fact that title to particular piece of real property is involved in litigation," Dunaway said, citing a court case. "Without a lis pendens, a purchaser who buys a beachfront property without legal notice of the customary use lawsuit may not be legally bound by a later judgment of a court."


Dunaway’s clients are not the only beachfront property owners involved in the customary use lawsuit who have sold or are in the process of selling their homes.


Northwest Florida Daily News research indicates nearly 80 beach properties have changed ownership since the county’s lawsuit was filed. That’s about 5% of the impacted total.


David Theriaque, another attorney representing the county in the lawsuit, did not return a phone call seeking comment.


In his motion to dismiss, Safriet noted that as of Jan. 6, the date of his filing, Walton County’s attorneys had not produced any evidence showing it had properly noticed all 1,194 property owners of the existence of the customary use lawsuit.


The motion states that on the day the status conference is held, the county will have had 318 days to notify the landowners.


"Any difficulty the county has had in serving the landowners in this case is of its own making," the motion said. "The county chose to sue all 1,194 beachfront owners in one complaint."


The 2018 law that wiped out Walton County’s existing customary use ordinance laid out a course by which the county could obtain a legal ruling through which its beaches could again be open to the public.


The law created by House Bill 631 not only decreed the county must sue to have its declaration of customary use verified, it also laid out a procedure through which homeowners would be notified they were subject to legal action.


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"The governmental entity must provide verification of the service of the notice to the property owners required in this paragraph to the court so that the court may establish a schedule for the judicial proceedings," the law states.


Notification issues arose for the county before it even filed the lawsuit.


Commissioners could not vote to seek the customary use declaration at the first public hearing it held before filing the lawsuit because county attorneys were unable to notify all potentially impacted homeowners before the hearing.


At a case management conference held two months after the filing, Judge Green learned the county had not completed notification.


He gave the county an additional 60 days to finalize its notification process and provided 45 days to allow landowners to respond.


In November 2019, the court gave the county still more time to wrap up its notification to landowners, and gave Noyes and Theriaque until a Jan. 17 court date to accomplish it.


That court date has since been moved back to March 2.


"If the county has not perfected service by March 2, 2020, this court should dismiss the case," Safriet’s motion states.