Judge rules against consolidating the two Siesta Key hotel lawsuits but leaves possibility open for later consideration

Walker schedules March 17 status conference with attorneys

On Feb. 15, the 12th Judicial Circuit Court judge presiding over the two Siesta Key hotel lawsuits denied a motion filed by attorneys for the project developers and site owners to consolidate the complaints for trial purposes.

However, Circuit Judge Stephen Walker left open the potential for consolidation, with a decision to be made following a status conference scheduled for 8:30 a.m. on March 17, via Zoom. He did tell the parties — including Assistant County Attorney David Pearce — “I like the idea of consolidation in some ways.”

Walker specifically cited one argument made by attorney Shane Costello of the Tampa firm Hill, Ward & Henderson, who represents the developers and property owners involved with both hotel projects — referenced in the legal proceedings as the Intervenors. Costello had pointed to a key contention in the second case, which involves the County Commission’s approval of both hotels. The plaintiffs argue that the County Commission should have amended the county’s Comprehensive Plan, instead of the Unified Development Code of zoning and land-use regulations, to eliminate the counting of hotel rooms on the barrier islands for residential purposes.

It takes the affirmative votes of four of the five commissioners to amend the Comprehensive Plan, which guides growth in the community, but it takes only three votes to amend the Unified Development Code (UDC).

In fact, only three commissioners voted in favor of the UDC amendment during the first hotel public hearing, held on Oct. 27, 2021.

Costello characterized that contention in the second hotel complaint as the commissioners “essentially [making] an end run around the legal arguments for a Comprehensive Plan amendment.”

Both lawsuits argue that Future Land Use Policy 2.9.1 in the Comprehensive Plan restricted residential density and intensity on the county’s barrier islands to what was present as of March 13, 1989.

Sarasota attorney William Merrill III, representing the out-of-state owners of the Calle Miramar hotel site and the developer — RE/MAX Realtor Robert T. Anderson Jr. — told the County Commission during the Oct. 27, 2021 hearing that the North American Industry Classification System (NAICS), says hotel rooms “are fundamentally non-residential, commercial land uses.”

Therefore, attorney Costello pointed out during the Feb. 15 hearing, if Judge Walker ultimately ruled in the second hotel lawsuit that the commissioners’ approval of the UDC amendment was ultra vires, meaning beyond their powers, then regardless of how the first hotel case turned out, that trial would have been unnecessary.

Siesta Key resident Lourdes Ramirez filed the first lawsuit in November 2021, following the commissioners’ approval of the plans for the eight-story, 170-room hotel on four parcels between Beach Road and Calle Miramar that comprise 0.96 acres.

Ramirez’s case is set for trial during a three-week period that begins March 27, as one of her attorneys, Richard Grosso of Plantation, noted during the Feb. 15 hearing. The second lawsuit is scheduled to be tried during a three-week period beginning June 12.

Moreover, during the hearing this week, Costello emphasized that key witnesses in both cases will be same, including county Planning and Development Services Department staff and experts that the Intervenors’ have hired.

Scheduling issues aplenty

Costello suggested that if Walker consolidated the cases, they both could be tried during the period beginning on March 27.

However, David Smolker of the Smolker Matthews firm in Tampa, who is the lead attorney for the plaintiffs in the second hotel case, explained to Walker, “We simply can’t be ready by then.”

Moreover, Smolker pointed out, “We are engaged in a rather unique case up in the Panhandle,” which involves about 90 parcel owners. The judge presiding over that lawsuit, Smolker said, has scheduled the trial to begin on May 15, with the expectation that it could last eight weeks.

He already was planning to file a motion, Smolker added, to request a delay of his clients’ Siesta hotel case.

Those plaintiffs are Robert Sax, who lives in the Marina Del Sol condominium complex to the east of the second hotel site — the intersection of Old Stickney Point Road and Peacock Road; the Marina Del Sol Condominium Association; and the 222 Beach Road Owners Association. The condominium complex at 222 Beach Road is close to the Calle Miramar hotel site. That hotel has been planned with seven stories encompassing 120 rooms. The developer is Siesta business owner and chiropractor Dr. Gary Kompothecras.

Nonetheless, Smolker told Walker on Feb. 15, “I do think [consolidation of the cases] is appropriate.”

Ramirez’s attorney, Grosso, said he did not dispute any of the points Costello had made. His concern, he continued, is that if Walker ruled for consolidation, Ramirez not only would have to remain in court for a longer period of time, with counsel, but she also would have to shoulder the expense of those extra hours for her legal team.

Many of the facts in the second lawsuit, Grosso pointed out, have no bearing on Ramirez’s case at all. Her complaint deals solely with the Calle Miramar hotel, which would be built on the edge of Siesta Village, closer to her home on the northern part of Siesta Key.

Walker assured Grosso that he could manage the flow of the trial to make it possible for Ramirez, Grosso and Ramirez’s other attorneys — Martha Collins and Pamela Jo Hatley of the Collins Law Group in Tampa — to stay out of court while the issues irrelevant to her case were argued. “I certainly would be as accommodating as possible,” Walker said. “That’s less of a concern for me.”

When Walker asked Grosso about Ramirez’s position on the potential of rescheduling her case for a later trial date, Grosso replied, “We are not categorically opposed to that.”

Grosso also pointed out that Ramirez, the county and the Intervenors are awaiting Walker’s ruling on summary judgment motions following a Jan. 6 hearing. Walker’s decision could make a trial moot in Ramirez’s case, Grosso said.

“Summary judgment” refers to a judge ruling for one party in a case without having to conduct a trial; the decision is based on the arguments laid out in the briefs that have been filed and, often, oral arguments on the points in those briefs.

If the trial will take place, Grosso continued, Ramirez also is concerned that delaying it could lead to opposing attorneys filing more pre-trial motions and seeking more discovery, which “would be a problem.”

If Walker ultimately agrees to consolidate the complaints, Grosso asked that the judge impose limitations that would prevent “that additional expense and process, [which] would be obviously very appreciated.”

(Discovery is the process through which parties in litigation interview witnesses and gather materials in an effort to pull together facts that support their cases.)

During further discussion, Walker told the attorneys that he did not want to remove Ramirez’s case from the schedule for trials beginning March 27 unless he had a “clear idea of when it could be reasonably rescheduled.”

He added that, because of the COVID-19 pandemic, when courts statewide were closed for a period of time, the 12th Judicial Circuit continues to have a backlog of cases that need to be tried.

“I need more information from Mr. Smolker,” the judge said. Given the schedule for Ramirez’s trial, Walker noted, a “docket sounding” already had been set for March 21. (As the State Attorney’s Office for the 12th Judicial Circuit explains, a docket sounding “is the last effort of the judge and the attorneys involved to schedule specific days and times for trials just prior to the beginning of the trial docket.”)

Therefore, Walker said, he wants to hear once more from everyone participating in the Feb. 15 hearing before he holds the March 21 docket sounding.

After checking with his assistant and the attorneys, Walker settled on the March 17 date and time.

Afterward, Grosso did ask whether Walker had any idea when during the three-week March trial period Ramirez’s case would be heard — if it remained on that schedule.

Jury trials get priority, Walker explained. (Both hotel cases are designated for “bench trials,” meaning the judge will consider the evidence and testimony and render a verdict; no jury will be involved.)

“I really will know a lot more about where the chess pieces fit on the board at docket sounding,” Walker told Grosso.

Nonetheless, Walker added, “I can tell you this: It would be shocking” if Ramirez’s trial began on March 27.

“We may have some witness availability problems,” Grosso responded.

“My ears are going to be open to that,” Walker replied.

Then Walker reiterated the fact that he would be denying the consolidation motion that day. “But I’m going to try to save everybody’s time and everybody’s money and make one determination on the various issues where this is no risk of inconsistency [of the decisions],” Walker added.

Grosso also asked when the next trial period would begin after the one in June, if consolidation of the cases ended up pushing them to a later date.

Walker advised Grosso to check the 12th Judicial Circuit’s website, reminding him that both jury and non-jury trials occur during each period.

A Sarasota News Leader check of the calendar found that the next trial period after June 12 would begin on July 17 and conclude on July 28.