Free Motion for Discovery - District Court of Federal Claims - federal

Case 1:07-cv-00273-MCW

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Filed 12/03/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
STEPHEN J. ROGERS , et. al.

Plaintiffs

Hon. Mary Ellen Coster Wiliams

No. 07- 273

L

UNITED STATES OF AMERICA
Defendant.

DE CLARA TION OF MARK T. ROMLEY IN SUPPORT OF DEFENDANT' S MOTION

FOR RELIEF PURSUANT TO RCFC 56(1)

, Mark T. Romley, counsel for Defendant, the United States of America, hereby declare
as follows pursuant to 28 U.
c. 9 1746:

Defendant seeks to conduct full historical title searches of the properties owned by

the named Plaintiffs prior to responding to Plaintiffs ' Motion for Parial Summar
Judgment (" Plaintiffs ' motion ) (Doc. No. 23).

Defendant seeks to conduct a full historical title search of the chain of title from
the Seaboard Air Line Railroad (" Seaboard") (to which the original grants at issue
in this case were made) to the Seminole Gulf Railway (which Plaintiffs allege
abandoned the railroad right-of-way on April 2 , 2004).

Defendant seeks the historical documents that would be associated with the title
transactions described in paragraphs 1 and 2 in order to assemble a complete

picture of the circumstances surrounding the title issues in this case.

DEFENDANT' EXHIBIT

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Defendant has two bases for expecting that the discovery it seeks will " engender
genuine issue of material fact."
Defendant' s first basis for expecting that discovery wil
engender a genuine

a

issue

of material fact concerns the original deeds granting the railroad right-of-way at

issue in this case to the Seaboard Airline Railway (" Seaboard" ) in 1910. In their
Proposed Findings of Uncontroverted Fact
propert owners granted

PFUF" ), Plaintiffs state that " eight

the Seaboard Air Line Railway (" Seaboard" ) easements
These

for a right-of-way upon which to operate a railroad across their propert.

easements expressly limited the right to use the propert to the operation of a
railroad. "
A review of

the nine deeds given by the eight original grantors , which

are attached to the PFUF as Tabs A- , reveals variations among the deeds.
In their PFUF , Plaintiffs accurately quote three ofthe original right-of-way deeds
(the Potter , Honore and Webber deeds are discussed and attached to the PFUF as

Tabs A- C respectively) (" Palmer , Honore and Webber

). The operative language

of these deeds granted to the railroad " a right-of-way for railroad purposes. " The
conveyance was made " upon the express condition. . . that if the Seaboard Airline

Railway. . . shall abandon said line for railroad puroses then the above described
pieced and parcels of land shall ipso facto

revert to and again become the propert

of the undersigned , his (or her) heirs , administrators and assigns. " PFUF , Tabs A-

In their PFUF , Plaintiffs give the name of the grantor for the remaining six deeds
(the Frazee , Philips , Knight I , Knight II , Hutchings and Blackburn deeds are

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attached to the PFUF as Tabs D- I respectively) (" deeds D- ) and state that the

interests conveyed in those deeds " expressly limited the right to use the propert
to the operation of a railroad. " PFUF
at 2.

Deeds D- I neither limited the grants made therein to railroad purposes nor made

any provision for a possibilty of reverter , as was found in the Palmer , Honore and
Webber deeds.

See. e. , PFUF , Tab D (granting to Seaboard " all. . . right , title

and interest of any nature whatsoever in and to the following propert.

.

TOGETHER WITH all and singular the tenements , heriditaments and
appurenances thereunto belonging or appertaining, and every right , title or

interest , legal or equitable , of the said paries of the first par; " PFUF , Tab I

(granting to Seaboard " all. . . right , title and interest of any nature whatsoever in

and to the following propert. . . TOGETHER WITH all and singular the
tenements , heriditaments and appurtenances thereunto belonging or appertaining,
and every right , title or interest , legal or equitable , of the said paries of the first

par.
Under Florida law , the differences between these two categories of deeds are
significant.
10.

The Palmer , Honore and Webber deeds appear to have conveyed a fee simple

determinable or a fee simple subject to a condition subsequent to Seaboard see
Richardson v. Holdman
33 So.2d 641 ,

643 (Fla. 1948) (holding that a right-of-

way grant to a railroad that stated " should the (grantee J cease to use the foregoing
land for railroad purposes , then and in that event the title to said propert shall

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revert and vest in the (grantor J and his heirs and assigns " conveyed a fee simple

determinable) .
11.

Deeds D- I appear to have conveyed fee simple absolute to Seaboard.

See

Atlantic Coast Line Rail Co. v. Duval County , 154 So. 331 , 332 (Fla. 1934) ( " (a J
railroad right of way in this state is not a mere easement or user for railroad
purposes. Like other propert it is acquired by purchase or condemnation and

vests a fee in the company acquiring it which canot be divested except as the law
provides. "

12.

The difference between these two categories of deeds is likely to create an issue of
material fact because the analysis of the interests held by the named Plaintiffs
individually likely wil
be affected by

whether their ownership succeeds from the

Palmer , Honore and Webber lines of deeds , in which case a possibility of reverter

might exist , or from the lines that succeed from deeds D- I , in which case all
interest in the right-of way appears to have been given to Seaboard in 1910.
13.

For these reasons Defendant desires time to conduct discovery in the form oftitle
searches on the properties of each named Plaintiff from the date of the alleged

taking back to original 1910 granting deeds to determine from which line of deeds

each individual Plaintiff's propert interest succeeded.
14.

F or these reasons Defendant also needs time to conduct discovery in order to

acquire documents associated with the transactions described in paragraphs 10
and 11.

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15.

Defendant's second expected basis for establishing a genuine issue of material fact arises from the Florida Marketable Record Title Act , Fla. Stat. 9 712. 01 et
seq. (West 2000) (" MRTA"

16.

The MR T A is a " comprehensive act that contains elements of a curative act , a

statue of limitations , and a recording act." Fla. Jur.2d Deeds 9 104 (2005) (citing
Blanton v. City of Pin ell as Park , 887 So.2d 1224 (Fla. 2004)). The purpose of the

MRTA is , in par , to clearly define marketability by extinguishing old interests of
record not specifically claimed or reserved.

See H&F Land, Inc. v. Panama City-

Bay County Airport and Indus. Dist. , 736 So.2d 1167 (Fla. 1999) (" receded from
on other grounds in

Blanton , 887 S02d at 1224). To this end , section 712. 02

of

the MRTA provides that " (aJny person. . . vested with any estate in land of record
for 30 years or more , shall have a marketable record title. . . free and clear of all
claims. "
Subject to the matters

stated in section 712. 03 of the MRTA

such

marketable record title shall be free and clear of all estates , interests , claims , or
charges whatsoever, the existence of which depends on any act , title transaction

event or omission that occurred prior to the effective date of the root of title.
Blanton , 887 So.2d at 1228. Due to this expansive language and the requirement

that the act be " liberally construed " Fla. Stat. 9712.10 , the MRTA has had
powerful consequences.

17.

For example , the MRTA has been used to validate the chain oftitle ensuing from

a forged or " wild" deed.

See Holland v. Hattaway , 438 So.2d 456 (Fla. App.

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1983) (" Therefore , MRT A can even confer marketability to a chain of title arising

out of a forged or wild deed.

Marshall v. Hollywood, Inc. , 236 So.2d 114 (Fla.

1970) (holding against estate of deceased stockholder , under MRT A , where estate

was seeking to recover propert

from a

corporation that acquired an interest

adverse to the estate by forged deed).
18.

The MR T A has also been used to strip subdivision s of their use restrictions when

they were not re-recorded in the maner specified within the act.

Berger v.

Riverwind Parking, LLP , 842 So. 2d 918 (Fla. App. 2003) (" Clearly MRTA

extinguishes all limitations imposed by the initial recorded restrictions as to all

lots. . . because they are over 30 years old and predate the root of title.
19.

In light of the possible application ofthe MRTA and the differences among the
granting deeds , Defendant believes that an investigations of the chain of title from

Seaboard to CSX and the chains oftitle from the original grantees to the named
Plaintiffs are likely to yield facts which wil aid Defendant in defending against
Plaintiffs ' motion.
20.

It is clear that the facts Defendant seeks to find exist and are discoverable

provided the Court grants time for the undertaking. All of the deeds Defendant
seeks should be located in the records of Sarasota County, Florida or Manatee

County, Florida. Additionally, the historical documentary evidence Defendant

seeks should be located with either of two third paries , the Trust for Public Land
or the Sarasota County governent.
Defendant

believes that these historical

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documents exist because it previously has spoken to each of these third parties in

unsuccessful attempts to acquire such documents. With time for discovery,
Defendant can obtain these items to assist it in responding to Plaintiffs ' motion.
21.

There has not been any formal discovery in this case other than the obligatory
disclosures made pursuant to RCFC 26.

22.

There has not been a discovery schedule entered in this case.

23.

Prior to the filing of Plaintiffs ' motion , Defendant began the process of engaging
LECG , a firm that does title related work on a contractual basis , to do the title

searches that are necessary for Defendant to defend against Plaintiffs ' motion.

This contract has been consummated , but work was not begun because Defendant

believes it is premature to begin title inspections prior to identifying all of the
potential class members in this case.

See JPSR

5. Following this Court' s order

of November 21 2007 , LECG stands ready to do the title work Defendant

requires for its response to Plaintiff's motion.
24.

Defendant has been in contact with the Trust for Public Land (" TPL" ) and

officials in Sarasota County in attempts to acquire historical documentar
evidence pertaining to the right-of-way at issue here and its use as a recreational

trail. Thus far neither effort has been successful. At this time , Defendant
anticipates that it may need to issue formal subpoeanas to obtain the relevant
documents.

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25.

If allowed time for discovery, Defendant wil

be able

to overcome the hurdles

which have , until now, prevented it from discovering the facts it needs to respond

to Plaintiffs ' motion.
26.

The overarching reason Defendant has not transmitted any formal discovery to

obtain relevant information is that this case was relatively recently fied order setting a discovery schedule had been entered prior to the fiing
motion.
27.

and no

of Plaintiffs

The parties agree that at least limited discovery is needed to resolve the liability
issues in this case see JPSR at ~ 5 (Doc. No. 18), but , other than the obligatory

RCFC 26 disclosures , none has yet been had.
28.

Defendant' s efforts to discover the necessary facts were slowed by hopes that its

informal discovery efforts with third paries would be more fruitful.
29.

Defendant was not in possession of all of the 1910 granting deeds until Plaintiffs

fied their motion November 2. Accordingly, the questions raised by the
differences among those deeds have only recently become apparent to Defendant

and there has not been suffcient time to do discovery consistent with such
questions.

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I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct. Executed on December 2 , 2007.

Mark T. Romley