[00:00:00] Speaker 00:
Docket number 20-1814, Andrews versus the United States.

[00:00:05] Speaker 00:
Mr. Daniels, you want two minutes for rebuttal, is that right?

[00:00:09] Speaker 03:
Yes, Judge O'Malley.

[00:00:10] Speaker 00:
OK.

[00:00:11] Speaker 00:
If you're ready to begin, you may do so.

[00:00:13] Speaker 03:
I am.

[00:00:13] Speaker 03:
Thank you.

[00:00:14] Speaker 03:
May it please the court, at the outset, let me express our hope that the court not mistake our zeal, whether on behalf of our clients or the law we believe to be controlling as disrespect,

[00:00:29] Speaker 03:
whether for the court of claims or the government.

[00:00:32] Speaker 03:
This is a rails to trails case.

[00:00:34] Speaker 03:
They have a number of moving parts, typically.

[00:00:37] Speaker 03:
Well, this case has no greater number than the usual.

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They are new and different, and they operate in different ways than perhaps the court below was familiar with prior to that time.

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Court of claims made a heroic effort, in our view, to comprehend what was presented to it.

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But we believe in the end, it was mistaken as to how these new and different parts fit together and how they work.

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Likewise, it ultimately had to resort to an adjudication in order to reach a decision, which we suggest was improper in the context of summary judgment under Claims Rule 56.

[00:01:16] Speaker 01:
Mr. Daniels, can I ask this question?

[00:01:18] Speaker 01:
This is Judge Toronto, actually, sort of a pair of questions.

[00:01:21] Speaker 01:
Is discovery closed and relatedly

[00:01:26] Speaker 01:
If summary judgments were denied, would there be an opportunity for you all to present additional evidence that is not yet part of what you have disclosed to the other side, or is the record essentially fixed at this point?

[00:01:47] Speaker 03:
I believe, Judge, the record is fixed, but for one thing.

[00:01:52] Speaker 03:
The court below took judicial notice of certain record facts for the first time without notice in the context of its opinion and judgment.

[00:02:04] Speaker 03:
And we would, under Rule 201, not to say good practice, be able to respond to that.

[00:02:12] Speaker 01:
I'm sorry.

[00:02:13] Speaker 01:
And what would be those things?

[00:02:15] Speaker 03:
Well, those things were what the Court of Claims did was it said, well, I have looked at records archived by the Secretary of State of Florida.

[00:02:26] Speaker 03:
And I see that at various times.

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The Live Oak, Tampa, and Charlotte Harbor Railway, LOGCHR, had professed to be a corporation in other public documents.

[00:02:42] Speaker 03:
And again, that was done for the first time in the opinion from which we appeal.

[00:02:48] Speaker 01:
Right.

[00:02:48] Speaker 01:
I guess I'm trying to understand, and this is not a unique situation where a matter that if it went to trial would be tried to the judge, but the judge has made a determination on summary judgment.

[00:03:04] Speaker 01:
I'm trying to understand at some concrete level what could reasonably and properly within the rules

[00:03:13] Speaker 01:
happen at the trial that would offer any possibility of a different determination than the one the trial judge has made in the context of summary judgment?

[00:03:25] Speaker 03:
At any trial, the plaintiffs would be entitled to a rebuttal case after the time that the government had rested in its own case in chief.

[00:03:37] Speaker 03:
We would present, the government would present, and we would rebut.

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That's what a trial would look like.

[00:03:43] Speaker 03:
That's not what happened here.

[00:03:47] Speaker 00:
Did you seek reconsideration and raise the rule 201 issue about notice and an opportunity to respond?

[00:03:57] Speaker 03:
Well, and it may be that just having done this for 40 years that nobody wants to see motions for reconsideration.

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In reviewing this court's decisions, I did not see that a motion under rule 59

[00:04:13] Speaker 03:
to alter or amend is a precondition to the preservation of any error.

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And I would suggest that under rule 201E, since one can take judicial notice even on appeal, one can claim the right to respond to notice materials even on appeal.

[00:04:29] Speaker 03:
And that's what the notes of the advisory committee on rules say in their commentary to E. In other words, if I- And what would your response be to the,

[00:04:42] Speaker 00:
Secretary of State documents that the court took judicial notice of?

[00:04:47] Speaker 03:
Our response would be that the fact that this entity continued to masquerade as a corporation does not satisfy any of the requirements of Florida law regarding incorporation or

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Neither does it overturn the mandate of Florida law that if you're not a corporation, you cannot do business and you cannot own property.

[00:05:15] Speaker 03:
We would have responded to these documents.

[00:05:20] Speaker 00:
Did you present any actual evidence that it was masquerading as a corporation?

[00:05:24] Speaker 00:
I mean, the fact that it held itself out of the corporation is relevant to the question of whether it was likely incorporated, right?

[00:05:33] Speaker 03:
why that's, I don't know why it can't be considered to be a masquerade, if in fact this entity filed what turned out to be, according to the government's proofs, unfilable articles of association, because they haven't been signed by the subscribing shareholders, a requirement of Section 1 of Chapter 1987 of Florida statutes, the organizing law that applied at the time,

[00:05:59] Speaker 03:
when this corporation did not receive the charter from signed not merely by the secretary of state but by the governor under the great seal of the state of florida that says you are a corporation which section one of the same chapter 1987 declares to be the single act that creates a corporation absent which a corporation is not created and when these same promoters

[00:06:24] Speaker 03:
apparently successfully organized a corporation, another corporation, the Rollins Bluff Railway, at the same time and obtained a charter, yet for 18 months in the period covered by the government's best proof, the report of the Secretary of State, they failed to obtain an actual charter or certificate.

[00:06:44] Speaker 00:
But the Secretary of State's notice or declaration didn't say they failed to obtain the charter.

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They just said we have no record one way or the other.

[00:06:53] Speaker 03:
And I take that as signifying that they were not a corporation.

[00:06:59] Speaker 01:
Why do you take that without additional evidence that the Secretary of State's records are highly likely to be complete, which I don't think I've read anything suggesting that.

[00:07:14] Speaker 03:
Well, I don't know whether in a self-proving document such as this,

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I need to adduce additional proof to suggest that the certified self-proving document, which is deemed by Florida's statute, to have prima facie credibility.

[00:07:32] Speaker 01:
Right, but just to be clear, the statute that you rely on has two sentences.

[00:07:37] Speaker 01:
The second sentence says that if you attach a document, that's prima facie case, that the document exists.

[00:07:45] Speaker 01:
And that's not the applicable sentence.

[00:07:47] Speaker 01:
The first sentence merely says

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That's prima facie evidence of the fact asserted.

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And as Judge O'Malley said, the only fact asserted here is we don't have it.

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That's not prima facie evidence of it never existed.

[00:08:01] Speaker 03:
I don't know why it's not, Your Honor, given the fact.

[00:08:03] Speaker 01:
Well, that's why I asked about, it seems to me, there's a necessary second premise, which is our records are really quite likely to be complete.

[00:08:13] Speaker 01:
So if we don't have it, it's pretty unlikely that it existed.

[00:08:16] Speaker 01:
And I didn't see evidence of that.

[00:08:19] Speaker 03:
Well, no, I don't think Your Honor did see any evidence of that.

[00:08:24] Speaker 03:
This is our position on that.

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As we have adverted to the Florida statutes in question, the Secretary is required to keep and maintain these documents.

[00:08:34] Speaker 00:
The reality is, I mean, if they're archived, the Secretary's statement that it doesn't have them currently would be true, right?

[00:08:45] Speaker 03:
No, Your Honor, the Secretary must keep

[00:08:49] Speaker 03:
In an organized form, a book, according to the chapter 1987, a book showing all of the railroad corporations that were organized, OK?

[00:09:02] Speaker 03:
It must then annotate on the articles they file the state of filing and the fact that the secretary received them.

[00:09:08] Speaker 03:
And then the final organizing event must occur, which is the issuance of a gubernatorial charter patent certificate.

[00:09:16] Speaker 03:
Here the secretary says, I do not have any of these.

[00:09:21] Speaker 03:
And I am asking, perhaps I'm asking some court to make a leap, that if the secretary who is charged by law with keeping and having these does not have them, they do not exist.

[00:09:33] Speaker 01:
And if I can just return, what we've just been talking about is what led to my initial question about whether the record would still be open for additional evidence of the sort that I think we've just been focusing on.

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perhaps missing.

[00:09:50] Speaker 03:
Well, and I appreciate your suggestion, Judge Taranto.

[00:09:54] Speaker 03:
Yes.

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To the extent that a further measure of devotion to the truth would require us to obtain a further declaration from the secretary saying, I'm charged by law with keeping all these records.

[00:10:11] Speaker 03:
I have all the records going back to this date.

[00:10:13] Speaker 03:
All corporations that have juristic existence in the state of Florida have records that are in my possession, and this corporation doesn't have any.

[00:10:24] Speaker 03:
I could obtain such a declaration under 28 USC 1746 and file that.

[00:10:30] Speaker 03:
Yes, Your Honor, I could do that.

[00:10:32] Speaker 00:
And what about any evidence that corporations that were formed contemporaneously with this one, that the Secretary of State has those records?

[00:10:44] Speaker 00:
Did you offer anything like that?

[00:10:47] Speaker 03:
We did not, Your Honor.

[00:10:48] Speaker 03:
That could be obtained with respect to the so-called Rollins or Rowlins walk railway that these same promoters organized.

[00:10:57] Speaker 02:
Mr. Daniels, I'm sorry to interrupt Judge Clevinger.

[00:11:01] Speaker 02:
Your time is running out.

[00:11:02] Speaker 02:
Don't you think we ought to talk about the alternative holding?

[00:11:06] Speaker 02:
That there's a de facto corporation here?

[00:11:10] Speaker 03:
Yeah, we ought to, Judge.

[00:11:11] Speaker 03:
We've got a couple of minutes left.

[00:11:13] Speaker 03:
Yes.

[00:11:13] Speaker 03:
In order to establish a de facto corporation, assuming that that doctrine still exists under Florida law, and we didn't repeat the briefing, but the briefing below indicates that it may have been abandoned when Florida adopted the Uniform Business Corporation Act in 1952 or three or four.

[00:11:33] Speaker 02:
As of the time back in the 1800s,

[00:11:38] Speaker 02:
There's a four-part test under the Richmond case, isn't that correct?

[00:11:42] Speaker 03:
That's correct, Judge.

[00:11:43] Speaker 02:
And didn't Judge Brugging find that all four of those requirements were satisfied?

[00:11:49] Speaker 03:
Yes, he did, but one wonders what proof there was of any of those propositions.

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In other words, what proof was there that this corporation, 140 years ago, attempted in good faith to comply with Florida law, other than its defective compliance?

[00:12:05] Speaker 03:
Second,

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Whose burden is that?

[00:12:09] Speaker 03:
It's going to be the government's as a party seeking summary judgment.

[00:12:12] Speaker 01:
Is that a disputed?

[00:12:14] Speaker 01:
Oh, no, forget about summary judgment.

[00:12:17] Speaker 01:
If it were a tried issue, who has the burden of persuasion on that?

[00:12:21] Speaker 01:
That's a kind of threshold question to then what needs to be established as summary judgment.

[00:12:26] Speaker 01:
But who has the burden of persuasion on the question of whether the corporation was a de facto corporation?

[00:12:34] Speaker 01:
You as the challenger to the

[00:12:36] Speaker 01:
corporation or the government as the one relying on the doctrine?

[00:12:44] Speaker 03:
I submit that it's the government as the party relying on this remedial doctrine in equity or otherwise that benefits it in the event that it's failed to attain, that the railroad failed to attain status de jure in actual juristic existence.

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In other words, I cannot conceive

[00:13:05] Speaker 03:
of where and how it would be the plaintiff's burden after showing that it had no de jure existence to then rebut in anticipation of what the government might assert a proposition that, oh, well, we didn't need juristic existence.

[00:13:21] Speaker 03:
We acted a lot like a corporation, and we had everybody that dealt with the signed documents saying we were a corporation.

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Therefore, we became a corporation in effect by desire.

[00:13:32] Speaker 03:
I think that's the government's burden, Your Honor, even at a trial.

[00:13:36] Speaker 00:
What additional evidence do you think they would have to put in to support that de facto conclusion by the court?

[00:13:45] Speaker 03:
Well, they would have to submit evidence that they attempted in good faith to comply with Florida law.

[00:13:54] Speaker 03:
in the face of the fact that they knew how to comply with Florida law and did comply with Florida law with regard to the other railroads that they were promoting, but that they somehow failed to do so innocently and fecklessly, right?

[00:14:09] Speaker 03:
They have to show that.

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Second, they have to show that they maintain this corporate fiction innocently and fecklessly without really knowing.

[00:14:18] Speaker 03:
In fact, they weren't organized and had no powers and could acquire nothing under controlling Florida law.

[00:14:24] Speaker 03:
Those are the kind of proofs they would need to adduce.

[00:14:28] Speaker 03:
And I understand it's 140 years later, but I'm not sure.

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that if I came in front of this court with a 10b5 case, that I could say, oh, Judge, these elements are really hard to prove.

[00:14:45] Speaker 03:
A bunch of this happened a long time ago.

[00:14:47] Speaker 03:
Would you excuse me from having to prove that?

[00:14:49] Speaker 00:
So are you saying that your argument is that they, in bad faith, failed to put their names on a document?

[00:14:58] Speaker 03:
No, I'm saying I don't have to prove bad faith.

[00:15:00] Speaker 03:
They have to prove good faith.

[00:15:03] Speaker 03:
It may be that the converse is assumed when proof of good faith is not forthcoming.

[00:15:08] Speaker 03:
But they've got the burden to prove good faith.

[00:15:11] Speaker 00:
Go ahead.

[00:15:12] Speaker 00:
Before you sit down, the deeds, the three deeds, the Schubert, the Moore, and the Foster deeds, you're not arguing that assuming LOTCHR was a corporation, that those,

[00:15:31] Speaker 00:
these were ineffective for purposes of transfer, do you?

[00:15:36] Speaker 03:
They are ineffective.

[00:15:38] Speaker 03:
In particular, there's only one deed that we need to talk about.

[00:15:41] Speaker 03:
That's the foster deed, which embraces all of the lands of all of the plaintiffs and all of the rights.

[00:15:45] Speaker 00:
Where do you make the argument in your brief that these are not effective transfers, assuming corporate status?

[00:15:52] Speaker 03:
Well, we make... I'm sorry, I cannot cite chapter and verse on that, Judge, but this is what we have argued.

[00:16:00] Speaker 03:
I can assure you, Your Honor, we have.

[00:16:02] Speaker 00:
We have argued that... Well, you have to have argued it to us for it to still be a live issue, right?

[00:16:06] Speaker 03:
Yes, and I have argued it to this court in our briefs.

[00:16:11] Speaker 03:
I'm afraid I would have to leave through them to find where it is exactly that we said that, but this is what we did say, and that is that they condemned this property instead of... Even after the Schufer D was executed,

[00:16:29] Speaker 03:
And they recited in their condemnation papers that, in fact, they had no title to this property, thus disavowing the Schufer D. The successor to this same corporation then told the Interstate Commerce Commission in a sworn document, Form 107, early in the 20th century, that the only way they had acquired this property was by condemnation.

[00:16:52] Speaker 03:
All that being true then, all they acquired was an easement, according to Florida statutes.

[00:16:57] Speaker 00:
But does that bind the government in this case if the deeds say what they say on their face?

[00:17:02] Speaker 03:
It does because the government may not stand in the shoes of the railroad, but the government can assert that the railroad had only a fee or had a fee simple interest only if the railroad could itself assert it.

[00:17:19] Speaker 03:
If the railroad were judicially stopped from asserting that it had anything other than an easement, the government itself, we say, is likewise prevented from claiming that the railroad had anything other than an easement.

[00:17:35] Speaker 02:
Mr. Daniels, this is Judge Clemenger.

[00:17:36] Speaker 02:
In the ICC filing, which is a T640, it shows both acquiring the property by deed, Mary Schuper,

[00:17:48] Speaker 02:
as well as by condemnation.

[00:17:51] Speaker 03:
Yes, and I can only assume that that is other right-of-way that's not an issue in this case.

[00:17:58] Speaker 03:
There are only 11 miles of this right-of-way at issue.

[00:18:02] Speaker 02:
And because the 73... It's the same property.

[00:18:07] Speaker 02:
I was reading what the ICC filing was, was that the successor in interest railroad reporting to the ICC

[00:18:16] Speaker 02:
says they're not sure how they got it.

[00:18:18] Speaker 02:
They either got it by deed or by condemnation.

[00:18:21] Speaker 02:
Well, I'm going to yield to Your Honor.

[00:18:23] Speaker 02:
Or a vote.

[00:18:23] Speaker 02:
Or a vote.

[00:18:24] Speaker 03:
If that's what Your Honor saw, then I yield to that interpretation, to what Your Honor saw.

[00:18:32] Speaker 03:
That, however, does not erase the fact that they disavowed the Schubert deed, under which the government now claims, by filing condemnation papers, reciting that they had no title and they needed to condemn.

[00:18:45] Speaker 03:
And if they did condemn, and they did, by fully following the Florida laws that then existed, all they got was an easement pursuant to the Florida statute, the Tegrania statute that we've cited.

[00:18:58] Speaker 02:
And I think I have... You make the argument that we should apply the Mills case here, but it's true, as the government says, that the Mills case is different, because in that case there weren't any deeds at all to point to.

[00:19:14] Speaker 02:
But I didn't see you arguing that we should have applied bills in the circumstances here.

[00:19:22] Speaker 02:
We may never know the truth as to whether or not the Red Road was properly incorporated.

[00:19:30] Speaker 02:
Nor did we ever know whether it had sufficient good faith to establish a de facto corporation.

[00:19:40] Speaker 02:
This case, for example, was tried to a jury

[00:19:44] Speaker 02:
It's a tie.

[00:19:51] Speaker 02:
In that case, we should have a default since we know the railroad ran an easement over the property for several years to treat the case as if it were like built.

[00:20:07] Speaker 03:
That is actually what we're saying.

[00:20:09] Speaker 03:
That analytically, the lack of a dinghy

[00:20:13] Speaker 03:
Let's say by a bona fide juristic corporation is the same as the lack of ability to get a deed or anything other means of title by a corporation that didn't exist.

[00:20:22] Speaker 03:
And then in fact, Your Honor has hit the nail on the head.

[00:20:26] Speaker 03:
There's what?

[00:20:27] Speaker 03:
There's a set of true unimpeachable facts here, and that is that under whatever color of right, they put a railroad there and they ran trains over it, just like in milk.

[00:20:40] Speaker 03:
And just like in Mills, they would have acquired an easement, even if they could have acquired nothing else.

[00:20:46] Speaker 00:
Okay, Council, I think there must be something wrong with the tones because they haven't been ringing, but it's been 20 minutes, so I think you're way past your time.

[00:20:54] Speaker 00:
We'll still give you two minutes for rebuttal because I didn't catch that there had been some kind of a technical glitch.

[00:21:01] Speaker 03:
You're very gracious, Your Honor.

[00:21:03] Speaker 00:
Okay, and then let's hear from the government.

[00:21:09] Speaker 04:
Good morning, Your Honors, and may it please the Court, Caitlin Schubert Schmidt, on behalf of the United States.

[00:21:14] Speaker 04:
Your Honors, the crux of this case is that the judge below properly considered the facts before it and appropriately held that Locter was either properly incorporated or acting as a de facto corporation at the time of the Schubert deed, which transferred fee simple title of the property that issue.

[00:21:29] Speaker 04:
That decision should be affirmed.

[00:21:31] Speaker 00:
I will first address my... Let's go.

[00:21:32] Speaker 00:
Can we start with the second part, the de facto part?

[00:21:36] Speaker 04:
Of course, Your Honor.

[00:21:38] Speaker 00:
What's the answer to your question as to whose burden it would be to establish that it was or was not a de facto corporation?

[00:21:49] Speaker 04:
Your Honor, I think in this case, the plaintiffs here are attempting to invalidate this transfer of the deed.

[00:21:57] Speaker 04:
And so it's their burden to show that Locter wasn't capable of receiving the deed at the time.

[00:22:02] Speaker 04:
But I actually don't think it matters, because if you look at the actual case law from Florida regarding

[00:22:08] Speaker 04:
what it means to be operating in good faith, case law, which plaintiffs have repeatedly refused to engage with, I think that case law makes clear that there is plenty here to show that Lochder was operating in good faith at the time of the Schufer deed.

[00:22:23] Speaker 04:
And I would be happy to go through those cases if it would be helpful.

[00:22:26] Speaker 00:
What evidence, though, is there of an innocent mistake?

[00:22:31] Speaker 04:
Well, the only requirement in the test for operation of a de facto corporation that deals with the idea of an innocent mistake is that the omission of any essential requirements of the law or charter had to have been unintentional.

[00:22:44] Speaker 04:
And in this case, it's not possible for the only possible mistake or omission that's been identified by any of the parties here is the possible lack of issuance of the certificate.

[00:22:55] Speaker 04:
And that lack of an issuance of a certificate, if that even did occur, could not have been

[00:22:59] Speaker 04:
intentional on the part of Locter because it was not Locter's responsibility to issue the certificate.

[00:23:05] Speaker 01:
What about the signatures of the subscribers?

[00:23:10] Speaker 04:
Your Honor, if you actually look to the articles of association, I think it's very telling that what they actually say at the end, and this is on page, I believe it's 988 of the record, although there's a colored copy at 981 that's a little bit easier to read.

[00:23:25] Speaker 04:
It actually indicates there that, quote, the names subscribed to the said articles are the genuine signatures of the person's names they're in, and that it is intended in good faith to construct and maintain and operate, that I believe it says something like railroad, in the said articles of association, sworn and subscribed before me this 21st day of July 1881.

[00:23:49] Speaker 04:
And so although plaintiffs seem to be pointing to this case from the late

[00:23:53] Speaker 04:
20th century dealing with whether or not a warrant was appropriately signed by saying that there was a signature lacking on that warrant and therefore subscription requires a signature.

[00:24:03] Speaker 04:
I don't think that that's relevant.

[00:24:04] Speaker 04:
I think we can look to the actual Articles of Association here and see that not only do they obtain or not only do they contain signatures, but they also contain a self-assertion that says, you know, we certify that the Articles of Association were born and described on this particular date.

[00:24:21] Speaker 01:
Just so I understand, I think

[00:24:23] Speaker 01:
You said that the innocence requirement under the Florida de facto corporation law applies only to mistakes.

[00:24:31] Speaker 01:
It seemed to me there were two possibilities.

[00:24:34] Speaker 01:
One is the signatures of the subscribers.

[00:24:36] Speaker 01:
The other is the signatures of the governor and the secretary of state.

[00:24:39] Speaker 01:
And you're saying that the first are present.

[00:24:43] Speaker 01:
You can just tell that they're present and no contrary evidence of that leaves something that's not in just the governor and secretary of state and that's not in

[00:24:51] Speaker 01:
lockeders control, so it's not, it's sort of immaterial.

[00:24:58] Speaker 01:
Is that, do I understand?

[00:24:59] Speaker 04:
That's correct, Your Honor, yes.

[00:25:02] Speaker 04:
And I think that that's all important to keep in mind because the essential element of good faith here, and I think this is well established in the Florida case law that we do have, isn't that there is some sort of, you know, look into the heart and determine, you know, did someone have good feelings when they attempted to incorporate the corporation?

[00:25:20] Speaker 04:
The real test is whether or not they essentially acted in such a way that indicated knowledge that they were doing something that they shouldn't have, right?

[00:25:29] Speaker 04:
Were they attempting to operate with full knowledge that they weren't incorporated because they hadn't yet thought to be incorporated?

[00:25:36] Speaker 04:
Or were they not able to undertake an action because they knew that they didn't fulfill the statutory requirements for undertaking that action?

[00:25:43] Speaker 04:
And all evidence here points to the idea that Lockdark

[00:25:46] Speaker 04:
you know, properly filed its articles of association, and we have a notation that they were received.

[00:25:51] Speaker 04:
We have further evidence of it reporting corporate activity as it was supposed to, participating in judicial proceedings, et cetera, and no evidence that any of that occurred in any manner that would have been inconsistent with the law.

[00:26:03] Speaker 04:
And so although we think that there is a very solid argument here that Locter was operating as a properly incorporated corporation, at bottom, it was certainly acting as a de facto corporation at the time of the Shanks and Key transfer.

[00:26:14] Speaker 00:
Did the government make any attempt to determine whether or not the Secretary of State had incorporation records for contemporaneously incorporated corporations?

[00:26:29] Speaker 00:
In other words, that all of the things from 140 years ago are either missing or archived or that only some of them are missing?

[00:26:40] Speaker 04:
Unfortunately, Your Honor, I believe, as far as I know, the answer to that is no, that no party made an attempt to gather evidence about other corporations that were operating at the same time or were incorporated at the same time period.

[00:26:52] Speaker 04:
I do think that Your Honors are accurate in noting that, you know, the 2018 certification of change by plaintiffs that indicates that the records of the Department of State don't disclose appropriation by the name of Wachter are not particularly useful because the 2019 certification, which is on page 986 of the record,

[00:27:10] Speaker 04:
specifically notes that, quote, the records of the Live Oak Tampa and Charlotte Harbor Railroad Company were transferred to the custody of the State Archives of Florida pursuant to the provisions of Chapter 257.

[00:27:21] Speaker 04:
And Chapter 257 specifically notes that once those records are transferred, the State Archives are the official custodians and... So nobody made a request to the Archives?

[00:27:31] Speaker 04:
Well, I think the request that was made to the Archives in this case that this certification is attached to

[00:27:37] Speaker 04:
is the request that provided the articles of association that we do have in the record.

[00:27:42] Speaker 04:
And that's how we know that they're the genuine articles and that they were received and filed.

[00:27:48] Speaker 01:
I'm a little confused about one thing.

[00:27:52] Speaker 01:
When the Secretary of State certified that he didn't have a record of a corporation by this name, do we know whether the Secretary was checking

[00:28:06] Speaker 01:
the state archives as well as archives that were in the Secretary of State's office or only the Secretary of State archives?

[00:28:17] Speaker 04:
I don't know, Your Honor.

[00:28:18] Speaker 04:
All I know is what plaintiffs have provided, which is just this simple statement, which just has the certification.

[00:28:27] Speaker 00:
Was there any practice at the time for the Secretary of State to have

[00:28:35] Speaker 00:
published or to require publication in any newspaper or periodical of the fact of incorporation?

[00:28:46] Speaker 04:
Your Honor, I can't recall from my reading of the statute whether or not that was part of the requirement.

[00:28:50] Speaker 04:
I know it was part of the requirements for condemnation proceedings later in the statute, but I'm sorry, I can't recall if that was true for Section 1 or Section 2.

[00:28:59] Speaker 00:
Okay, speaking of condemnation proceedings.

[00:29:03] Speaker 00:
Speaking of condemnation proceedings, is there any reasonable explanation for why the railroad would have undertaken the condemnation proceeding if it had actually purchased the property and had it transferred to it under either the Schuford or the Foster Deeds?

[00:29:27] Speaker 04:
I would be happy to provide your honors with a theory, but I have to say it is just a theory.

[00:29:32] Speaker 04:
And my understanding of railroads operating in this area at the time was that there were actually two competing railroad companies that were attempting to place railroads in almost identical areas of Florida here.

[00:29:46] Speaker 04:
And there was a lot of competition between the two about who was actually going to build the line, if they were both going to build lines, if one was going to become a branch of the other, if they were going to become merged.

[00:29:55] Speaker 04:
And that actually explains a lot of the

[00:29:57] Speaker 04:
sort of strangeness we have in the 1883 to 1884 secretary's report which talks about a merger and a consolidation and a branch opening and etc.

[00:30:05] Speaker 04:
So my theory is that you know railroad companies were trying to pursue any avenues that they had to make sure that they had the appropriate property at the time.

[00:30:15] Speaker 04:
I think the district court used or the CFC used some terminology like this was the Wild West of railroad operation at the time and it's simply possible that

[00:30:24] Speaker 04:
you know, one hand wasn't entirely aware of what the other hand was doing when they were attempting to gather this property and build this row line.

[00:30:31] Speaker 04:
But I think it's important to note that not only were the condemnation proceedings not concluded, and I would be happy to discuss that, but once the deed was transferred, the property was owned by Locter, and so any condemnation proceedings could not have been effective because there was no property to condemn that they did not already own.

[00:30:47] Speaker 02:
How do we know they were not concluded?

[00:30:52] Speaker 04:
Well, Your Honor, what we know is that we have no evidence in the records that Locter actually paid anyone for the condemnation or for the takings.

[00:31:02] Speaker 02:
We have an aversion by the successor in interest to the United States government that actually did that.

[00:31:12] Speaker 04:
I'm sorry, Your Honor, you broke up a little bit there and I couldn't hear the whole question.

[00:31:15] Speaker 02:
The aversion by the successor in interest that they paid $76 to the court

[00:31:23] Speaker 02:
to get the condemnation title.

[00:31:27] Speaker 04:
I'm sorry, and where is your honor pulling that from?

[00:31:29] Speaker 02:
In the ICC filing.

[00:31:33] Speaker 04:
Right.

[00:31:34] Speaker 04:
Well, the ICC filing is certainly confusing, as you noted, regarding that particular property at issue and whether or not it applies to this one or whether or not it had already been transferred.

[00:31:44] Speaker 04:
Sorry, I'm just trying to pull up that.

[00:31:47] Speaker 02:
Well, my representation is it not that they paid $76

[00:31:54] Speaker 02:
to the circuit court.

[00:31:56] Speaker 02:
How else can you read that?

[00:32:01] Speaker 04:
Well, it's difficult to know what it means to potentially have paid money to someone who doesn't own the property at issue anymore.

[00:32:07] Speaker 04:
And if we were going by that, it was already transferred by my point.

[00:32:13] Speaker 02:
My point is that you're arguing that the truth was no conclusion of the court proceeding was there's no evidence that money was paid.

[00:32:24] Speaker 02:
And what I see as a representation was the ICC filing done under oath?

[00:32:33] Speaker 04:
I don't know the answer to that, Your Honor.

[00:32:34] Speaker 04:
I believe that those were records presented by the plaintiffs, so I would hope that they would have that answer for you.

[00:32:46] Speaker 04:
Thank you.

[00:32:50] Speaker 04:
What I would also note is that plaintiffs also noted regarding those filings that it's sort of unclear what properties we're talking about and it's unclear, you know, if that was the proper order of events that occurred as represented in that document, it seems clear that the deed, the Schuford deed, transferred the properties.

[00:33:07] Speaker 04:
And so, you know, even if they later chose to, for example, to pay additional money, that wouldn't have negated the original deed from operating.

[00:33:17] Speaker 04:
And I also want to point out here that plaintiffs are sort of trying to have this both ways, where they're saying, Wachter wasn't a properly incorporated corporation for the purpose of the Schuford deed, yet it was a properly incorporated corporation in order to be able to engage in the condemnation proceedings.

[00:33:31] Speaker 04:
And that simply doesn't make any sense, because if it was properly incorporated, or if it was acting as a de facto corporation, then it was able to take property through the Schuford deed and match it into the inquiry.

[00:33:40] Speaker 04:
If it wasn't, then not only could it not participate in the Schuford deed, it also couldn't participate in the condemnation proceedings,

[00:33:47] Speaker 04:
And a simple assertion that it was capable of participating doesn't actually, wouldn't actually have meant that it was capable of participating.

[00:33:54] Speaker 04:
So plaintiffs are sort of trying to have a take on you there.

[00:33:58] Speaker 00:
Given all these factual nuances, why wouldn't it have been more appropriate for the court to decide this question at trial?

[00:34:05] Speaker 00:
Why did you invite a summary judgment when there were so many factual issues?

[00:34:14] Speaker 04:
Your Honor, I think because here there are certainly some evidentiary gaps that are not ideal.

[00:34:20] Speaker 04:
I think everyone would agree that this case would be simpler if, say, you know, we actually have the certificate in front of us.

[00:34:25] Speaker 04:
But the lack of certain evidence like that in front of us doesn't actually negate the evidence that we do have.

[00:34:31] Speaker 04:
And the evidence that we do have indicates the locker filed with articles of association and that those were accepted.

[00:34:36] Speaker 04:
And so plaintiffs haven't pointed to any additional evidence or fact-finding, even when asked by Your Honors now, they haven't really identified any specific saying that they say that they would bring to trial that would negate any of those, that would actually affirmatively negate any of the evidence that we do have here.

[00:34:52] Speaker 04:
And so based on the evidence that we do have in front of us, it seems appropriate to make a determination that based on the evidence we have,

[00:35:00] Speaker 04:
or applying the law and coming to the conclusion that Locter was properly incorporated or acting as a de facto corporation.

[00:35:05] Speaker 01:
What is your view about the scope of new evidence that the plaintiffs could introduce at trial at this point if they went out and got new declarations from the Secretary of State to try to figure out what exactly the earlier certification meant or

[00:35:28] Speaker 01:
expanded the question to other corporations around the same time or looked at newspaper filings or dug up some new information.

[00:35:42] Speaker 01:
Is that still a possibility or is there something about the scheduling or discovery closure or something like that that means we are operating on a fixed record at this point with the possible exception of response to

[00:35:58] Speaker 01:
I don't know.

[00:36:01] Speaker 04:
Well, Your Honor, I think that there was an opportunity for plaintiffs to do all of that, and they elected not to.

[00:36:06] Speaker 04:
And so it seems a little strange to give them a second opportunity to go do that.

[00:36:11] Speaker 04:
And if I may just answer, I'd say that I think it's also important to note here that the only judicially noticed evidence that plaintiffs are objecting to is this 1883 to 1884 Senate report.

[00:36:21] Speaker 04:
And while that provides additional collaborating evidence for the existence of locter, it's not actually necessary to make that determination.

[00:36:29] Speaker 04:
So even if plaintiffs had some opportunity to respond to that, it would be immaterial because you could completely eliminate that evidence and still reach the exact same conclusion.

[00:36:37] Speaker 01:
I'm sorry, I just want to, you said it would be strange they had the opportunity.

[00:36:43] Speaker 01:
Can you get one step more legalistic about this?

[00:36:48] Speaker 01:
Is there something about the CFC rules in general or in terms of orders in this case that would preclude or, yeah, would either allow or preclude the creation and introduction of new evidence at a trial if summary judgment were reversed?

[00:37:09] Speaker 04:
No, Your Honor.

[00:37:10] Speaker 04:
I don't have anything further to provide on that point, although I would be happy to look into that and get back to you with some additional information.

[00:37:16] Speaker 04:
My larger point was just that plaintiffs had this opportunity to provide more evidence in this case to do the type of additional inquiries that have been discussed here, and they elected not to, so we have the evidence that we have before us, and I think that evidence is certainly sufficient to conclude that Locter was either operating as a properly incorporated or de facto railroad, and thus obtained this property through the Schieffer D transfer.

[00:37:43] Speaker 00:
Okay.

[00:37:44] Speaker 00:
Is there anything else you want to add

[00:37:46] Speaker 00:
I think I'm over my time.

[00:37:49] Speaker 00:
Thank you, Your Honor.

[00:37:55] Speaker 00:
All right.

[00:37:55] Speaker 00:
Mr. Daniels will have two minutes.

[00:37:57] Speaker 03:
I'll be brief, Your Honor.

[00:37:59] Speaker 03:
First off, with regard to the jurat that appears in appendix at page 988, that's a jurat for the signatures of the three incorporators, as required under section one,

[00:38:15] Speaker 03:
of the chapter 1987.

[00:38:17] Speaker 03:
It is not, you do not see the signatures of all of the incorporators.

[00:38:24] Speaker 03:
You don't see a signature of Mr. George Foster.

[00:38:27] Speaker 03:
You don't see a signature of Mr. Drain.

[00:38:30] Speaker 03:
You don't see a signature of Mr. Hardy.

[00:38:32] Speaker 03:
You don't see a signature for Mr. Renliff.

[00:38:35] Speaker 03:
And these are all, these are all subscribers who were required under fourth law to subscribe, i.e.

[00:38:42] Speaker 03:
sign these articles.

[00:38:44] Speaker 03:
So you don't see that.

[00:38:46] Speaker 03:
Yes, you see an acknowledgment where the three incorporators attest that these are their true signatures as properly they should.

[00:38:53] Speaker 03:
But they are not attesting as to any other signatures, indeed, because no other signatures appear on this document.

[00:39:00] Speaker 03:
Second, with regard to Judge Clevenger's question, I misspoke, which is not atypical.

[00:39:06] Speaker 03:
But no, I don't believe, Judge Clevenger, that the 107 was signed under oath.

[00:39:13] Speaker 03:
It was, well, you know, obviously, theoretically, it's a solemn document presented to this all-important administrative agency at the time with the intent, so as to invite credence by that agency, but there's nobody who acknowledges at the end that it's under oath or under penalty of burglary or whatever.

[00:39:41] Speaker 03:
And I think I'm probably just about done, Your Honor.

[00:39:43] Speaker 00:
Yes, you are.

[00:39:44] Speaker 00:
But I think there's one more question.

[00:39:45] Speaker 00:
Is there?

[00:39:47] Speaker 00:
No?

[00:39:48] Speaker 00:
OK.

[00:39:49] Speaker 00:
Mr. Daniels, there is one thing I do want to say.

[00:39:50] Speaker 00:
I know you opened up saying you didn't mean to be disrespectful, but your briefs were really disrespectful.

[00:39:58] Speaker 00:
And I think you just ought to consider that in the future when you're submitting things and writing to the court.

[00:40:05] Speaker 03:
I'm sorry, Your Honor.

[00:40:06] Speaker 03:
And yeah, I'm sort of an old dog who just

[00:40:11] Speaker 03:
tends to bite.

[00:40:12] Speaker 03:
I do apologize.

[00:40:13] Speaker 03:
I certainly will be happy to apologize to the Court of Claims in writing, and to this Court in writing, if Your Honor prefers.

[00:40:21] Speaker 00:
No, I don't think that's necessary.

[00:40:23] Speaker 00:
But Judge Brugnick has done this for a long time, and he's a very careful and thoughtful judge.

[00:40:29] Speaker 03:
I agree with that.

[00:40:30] Speaker 00:
That doesn't mean we always agree with him, but he is.

[00:40:33] Speaker 03:
He treated us very well, and we did not, you know, I'm sorry, Your Honor, that Your Honor has that in mind.

[00:40:39] Speaker 03:
That's not what we intended to give.

[00:40:42] Speaker 00:
Okay.

[00:40:42] Speaker 00:
Thank you, counsel.

[00:40:44] Speaker 00:
All right.

[00:40:44] Speaker 00:
I think both counsel, the case will be submitted and the court is adjourned.

[00:40:50] Speaker 00:
Thank you.

[00:40:51] Speaker 03:
The honorable court is adjourned until tomorrow morning at 10 a.m.