Author: derreverelaw

What is the deal with Statements of Facts under Massachusetts Rule 9A?

Let’s face the FACTS, as discussed previously Superior Court Rule 9A is as confusing to most attorneys as it would be to non-attorneys. Sometimes this statute can feel like trying to decipher the map to the Holy Grail—so get out your Indiana Jones hat and whip and let’s get cracking.

First and foremost, realize that this is ONLY for Summary Judgment in Superior Court, this does not apply to your District Court cases. So breathe easy my district court brothers and sisters.

What’s the Big Deal About Statements of Facts?

Imagine you are at a dinner party. You have got an amazing story to tell, but if you start rambling on without structure, your audience is going to zone out faster than you can say “objection.” That’s what the statement of undisputed facts does for your motion for summary judgment—it organizes your evidence and keeps the judge engaged. Getting this right is probably the only way a judge will even consider your motion, so a big focus should be paid to this!

The Moving Party’s Statement of Facts

Here’s the lowdown on what you need to serve up as the moving party:

• • Numbered Format: Think of this as your legal “bullet points.” Each fact gets its own number, making it easy for the court to keep track of your dazzling array of facts.
  • Materiality Matters: Only dish out the facts that are essential to the case. No one wants to hear about that time you won the goldfish at the local fair—unless it’s relevant!
  • Citations to Evidence: Every fact needs a supporting citation of evidence! Site to them and include them in your Joint Appendix. If you need help, check out my prior blog: Learning to Love Superior Court Rule 9A Pt. II — Summary Judgment
    • Disclaimer – This is now a bit out of date because they keep changing these rules, so be sure to double-check the rule!!! You can’t blame me when the court tells you that you filed improperly.
  • Clarity is Good: Keep your language straightforward and objective. Remember, you’re aiming to convince, not confuse!
  • Do Not:
    • Exceed 20 pgs;
    • Include background facts not material to a decision (include those in the memo of law);
    • Include quotes from any contract, trust, agreement, etc. The Statement of Facts may only seek to establish the existence and authenticity of such documents;
    • Use quotations from any statutes, regs, etc.

The Response: Opposing Party’s Turn to Shine

Now, let’s flip the script. The opposing party has a chance to jump into the ring and throw down.

1. Response to the moving party’s statement of facts:

• • You MUST respond to the moving party’s statement of facts, on the same document.
    • Example:
      • (Moving Party): Defendant hit Plaintiff’s vehicle. See Exhibit A.
      • (Non-Moving Party): Response: Denied. Plaintiff’s car reversed into
        Defendant’s vehicle. See Exhibit B.
  • Do not forget to do this, or fail to deny something that is a death knell for your case—as long as you have evidence to support your denial.
  • Supporting Evidence: Don’t just claim something is false—back it up! Cite your sources. Failure to include these can result in the Fact being deemed admitted by the court.

2. Statement of Additional Facts:

• • What the heck is this??
    • Just as the moving party gets to lay down their cards, you’ll present your own numbered list of disputed facts. Think of it as your comeback tour! But the rules are super weird on this so get ready.
    • Once upon a time as the non-moving/opposing party, you simply added these to a singular Word document called The Statement of Facts. If the moving party had 20 numbered statements, the non-moving party would then start their numbering at 21 on the same document, and then a single Statement of Facts was filed. This made things very easy for the judges to review these together and get input from each party. However, as the rule is written this is no longer the case.
    • So, you need to follow: Super. Ct. Rule 9A (b)(5)(iii)(B)
    • This is super confusing for most people, even judges. Fun story, one time I was opposing an MSJ. We submitted everything in accordance with the above-referenced rule, i.e. we had a separate statement of facts and the judge ordered us to disobey the rule and submit a Joint Statement of Facts as it was laid out under the old rule. We of course complied. When we had our hearing on this, I was bold enough to ask the judge why we were required to submit in a way that did not comply with the rule, and the judge explained that they hated the new rule and argued against it when it was proposed. So the lesson, be flexible and do as the judge says!

Conclusion

The Statement of Facts (moving party), Response to the Statement of Facts (non-moving party), and Statement of Additional Facts (non-moving party) are by no means easy to understand. But with the right amount of focus, you can sort through the chaos, and reach that Holy Grail of a compliant 9A package—“it belongs in a museum!”

Out with the Old, In with the New Alternative Dispute Resolution: Division of Administrative Hearings

Pursuant to the Personal Lines Bulletin from Citizens on December 6, 2022, beginning February 2023, a new form of alternative dispute resolution was implemented by Citizens Property Insurance Corporation. It is a means to avoid lengthy litigation in favor of an expedited track for resolution. Utilizing the State of Florida Division of Administrative Hearings (DOAH), disputes regarding coverage and/or scope and price of claims can now be resolved within four months or less.

What is the Division of Administrative Hearings?

The Division of Administrative Hearings is an independent agency responsible for conducting administrative hearings and handling dispute resolutions. The Florida division provides independent judges to conduct hearings on the matters. All disputes are resolved by judges, without the use of a jury. All matters within DOAH will culminate in a final arbitration hearing held via Zoom over a two-day period. Here, both the Insured and Citizens will have the opportunity to present their case using exhibits, calling witnesses, and presenting expert testimony, just as they would in a regular jury trial; however, the Administrative Law Judge will be the one issuing a final order on the matter after observing the proceedings.

What type of cases can be resolved using DOAH?

Most all of Citizens claim disputes can be resolved utilizing this alternative form of dispute resolution. However, the following claims are not eligible for DOAH:

• Sinkhole claims
• Claims regarding Citizens’ Managed Repair Program

How will you know if a claim is being resolved via DOAH?

Effective February 1, 2023, Citizens will be utilizing new policy endorsements which provides Citizens or the Insured the right to “invoke” the Division of Administrative Hearings as a form of Alternative Dispute Resolution. The Insured, themselves, can invoke this form of ADR by submitting a written request to Citizens. However, often times, the invocation is made in response to an Insureds’ Notice of Intent to Initiate Litigation.

As required by Florida Statute 627.70152, an Insured must file a Notice of Intent to Initiate Litigation if there is a disagreement surrounding an Insureds’ claim. The Insurer then has an obligation to respond to the Notice of Intent to Initiate Litigation within ten business days. It is during this time that Citizens can choose to invoke the Division of Administrative Hearings. Citizens will respond to the Insured stating that in response to the Insureds’ Notice of Intent to Initiate Litigation, that Citizens will be utilizing the Division of Administrative Hearings Alternative Dispute Resolution. Whoever invokes this form of ADR would then file a Written Petition for Formal Hearing with the Division of Administrative Hearing, which outlines the general facts of the case and dispute. Once accepted, both parties, through their legal counsel, will receive a “Notice of Arbitration Hearing by Zoom Conference,” which establishes the date of the final arbitration hearing, as well as several other deadlines to comply with throughout the DOAH process.

What deadlines should you be aware of?

Each Notice of Arbitration Hearing is different, and not all may require these deadlines; however, below is an outline of pertinent deadlines to be aware of in most DOAH matters:

1. Filing Notice of Appearance: this must be done by both parties immediately upon receiving notice of the DOAH matter.
2. Filing Certified Copy of Policy: not all Administrative Judges require this, but the vast majority order that a Certified Copy of the Insured’s Policy must be filed within thirty days of the initiation of proceedings.
3. Discovery Deadline: Discovery of all sorts must be completed ten days prior to the final arbitration hearing.
4. Deadline for Written Expert Report: Most reports state a date certain for expert reports to be filed. This often falls within two months of the initiation of the proceedings. Petitioners will be required to file their expert report first, followed by Respondents’ report about two weeks after.
5. Pre-Hearing Meeting of Parties: No less than fifteen days prior to the final hearing, the parties must meet and confer to:
   • (a) Discuss the possibility of settlement;
   • (b) Stipulate to as many facts and issues as possible;
   • (c) Prepare the pre-hearing stipulation required by this Order;
   • (d) Examine all exhibits proposed to be offered into evidence at the hearing;
   • (e) Furnish the opposing party the names and addresses of all witnesses who may testify at the hearing; and
   • (f) Complete all other matters which may expedite the hearing in this case.
6. Pre-Hearing Stipulation: No less than seven days prior to the final hearing, the parties must submit a joint pre-hearing stipulation, that includes:
   • (a) A concise statement of the nature of the controversy;
   • (b) A brief, general statement of each party’s position;
   • (c) A list of all exhibits to be offered at the hearing, noting any objections thereto, and specifying the grounds for each objection (objections not noted are waived);
   • (d) The names and addresses of all witnesses to be called at the hearing by each party, with the field of expertise designated for any expert witness;
   • (e) A concise statement of those admitted facts requiring no proof at hearing;
   • (f) A concise statement of those issues of fact which remain to be litigated;
   • (g) A concise statement of those issues of law on which there is agreement;
   • (h) A concise statement of those issues of law remaining for determination by the ALJ;
   • (i) A concise statement of any disagreement as to the application of the rules of evidence;
   • (j) A list of all pending motions or other matters which require action by the ALJ;
   • (k) An estimate of the length of time required for the hearing; and
   • (l) The signature of all parties or their counsel.
7. Exhibits: No later than seven days prior to the hearing, the parties must number and file the exhibits they plan on utilizing at the final arbitration hearing.

DOAH vs. Litigation – key differences to be aware of:

The key component that differentiates DOAH from typical litigation is the timing aspect. The goal of utilizing DOAH is to reduce the time that it takes for claim disputes to be resolved. With this, comes several practices and procedures that differ from typical litigation.

1. Responsive Pleadings: A Respondent may, but is not required to, file a responsive pleading to the petition.
2. Discovery: While discovery is still governed by the Florida Rules of Civil Procedure and the Florida Evidentiary Code, the Administrative Law Judges have the discretion to amend these rules as needed. Once main difference is that in serving requests for discovery, including interrogatories, admissions, and production, the responding party now only has fourteen days to respond instead of the typical thirty.
3.  Motion Practice and Hearings: Most motions are resolved without the need for a hearing. Unless explicitly ordered by the Administrative Judge, when a motion is filed, the judge will read the contents of the motion and response (if any) and either: 1). Order a hearing to occur within the next five (5) days, or 2). Rule on the motion based on its merits without the need for a hearing. The vast majority of motions get ruled on without a hearing. Additionally, if a motion is “agreed to” the parties must expressly state what is agreed upon and the judge will issue their order accordingly. Submitting a separate agreed order is not the proper procedure in DOAH.
4. Meet and Confer Requirement: Any party filing a motion must include a “Certification of Good Faith Meet and Confer”, which outlines the attempts at discussing the contents of the motion with the opposing party and the outline of those attempts. Any motion that does not reflect this certification will likely be denied.
5. Expert Reports: All expert reports must be filed on the DOAH docket and include the following information:
   • (i) a complete statement of opinions the witness will express and the basis and reasons for them;
   • (ii) the facts or data considered by the witness in forming them;
   • (iii) any exhibits that will be used to summarize or support them;
   • (iv) the witness’ qualifications, including a list of all publications authored in the previous ten years;
   • (v) a list of all other matters in which the witness testified as an expert at trial or by deposition in the past four years; and
   • (vi) a statement of compensation to be paid for the study and testimony in the case.
6. Final Hearings: The use of final arbitration hearings differs from a typical jury trial. The parties will meet via Zoom at the final hearing. There will be no jury present and the administrative law judge will be the governing body and issue the final order. The parties can present their evidence using exhibits and testimony; however, the use of objections is more limited and not used as abundantly.

The Division of Administrative Hearings is a relatively new form of alternative dispute resolution. As there is not much research or statistics on it, it remains to be seen whether or not this becomes more utilized than regular litigation and how effective it will be. For more information on the Division of Administrative Hearings, see https://www.doah.state.fl.us/ALJ/.

Ringing in the New Year with New Florida Civil Rules of Procedure Effective January 1, 2025

For many years courts have been burdened with delays in moving cases to conclusion, primarily because attorneys were not diligent in preparing cases for trial, resulting in attorneys requesting continuances to obtain additional time to prepare for trial. One of the reasons for delays arose from the discovery process. Attorneys would delay in propounding or responding to discovery requests, or would become embroiled in discovery disputes with opposing counsel, often involving bad faith discovery requests or responses. Judges expended needless additional time to resolve these disputes, eventually causing cases to be continued, often multiple times. The pandemic magnified these problems. While the courts began to rely more heavily on case management orders containing deadlines to accelerate cases to trial, the case management orders did not resolve the delays resulting from discovery delays and disputes. In some cases, the use of case management orders created confusion when case management deadlines conflicted with deadlines in trial orders.

Therefore, on May 23, 2024, the Florida Supreme Court amended the Florida Rules of Civil Procedure, effective January 1, 2025, to address these problems. In doing so, the Supreme Court significantly changed the litigation landscape in Florida state courts. These new procedures provide a more robust calendaring system through the use of more robust case management orders, and severely restrict the ability of parties to obtain continuances necessitated by the failure of attorneys to prepare for trial in accordance with the deadlines imposed. Furthermore, the new rules are designed to streamline and accelerate the discovery process, including by adding provisions similar to the discovery procedure in Federal court and discouraging bad faith discovery requests and responses. By separate order, the Supreme Court also amended the timing requirements for summary judgments, consistent with these amendments.

Trial Management:

The Supreme Court completely rewrote Fla. R. Civ. P. 1.200 to require courts to assign most civil cases to one of three tracks within the earlier of 120 days after commencement of the case or 30 days after service of the complaint on the last-named defendant. The assignment is to be made either by a case management order or pursuant to an administrative order issued by the chief judge of the circuit. The three tracks are streamlined, general, or complex. The case tracks are based on the expected amount of judicial intervention necessary. Cases assigned to the complex track will proceed under Fla. R. Civ. P. 1.201, which was not significantly amended. The remaining cases will be assigned to either a streamlined or general track. Parties are permitted to move for a change in a track, provided the motion is filed promptly, with good cause to support the motion. The court also may change the track assignment on its own motion. The track assignment is based on the amount of judicial attention required for resolution.

A trial court must issue a case management order that specifies a projected or actual trial period based on the case track assignment. (Interestingly, the rule does not provide for a deadline for the court to issue a case management order itself. Presumably, that deadline will be established by administrative order.) The case management order must specify the projected or actual trial date based on the track assignment. Absent an administrative order providing for different time periods, streamlined cases will be expected to be ready for trial in 12 months, and general cases will be expected to be ready for trial in 18 months.

The case management order must also specify deadlines, including eight specified deadlines, which include deadlines for service of complaints, adding new parties, completion of discovery, resolution of objections to pleadings, resolution of all pretrial motions, and completion of mediation or other alternative dispute resolution. Administrative orders may require additional deadlines, such as witness and exhibit lists, to be included in the case management rather than in the trial order.

The case management deadlines are to be strictly enforced, but parties may submit an agreed order to extend a deadline if the extension does not affect the ability to comply with the remaining deadlines in the case management order. Any other change to deadlines requires a motion to amend the case management order, rather than submitting a motion for extension of an individual deadline. The new rule explicitly provides that a notice of unavailability will have no effect on the deadlines set by a case management order absent an order amending deadlines or amending the case management order.

The Supreme Court also made significant changes to Fla. R. Civ. P. 1.440, regarding setting cases for trial to provide that a case no longer has to be at issue (the pleadings have been closed) for trial to be set. The court must set the case for trial at least 45 days prior to the projected trial date in the case management order. Any order setting the trial period must set the trial to begin at least 30 days after the date of the service of the order, unless all parties agree otherwise.

The Supreme Court also rewrote Fla. R. Civ. P. 1.460, regarding continuances, to limit the grounds to obtain a continuance of trial. The revised rule explicitly provides that motions to continue a trial are disfavored and should be rarely granted – and then only upon good cause shown. The rule also explicitly provides that lack of due diligence in preparing for trial is not grounds to continue the case. The moving party must make reasonable efforts to confer with the nonmoving party about the need for a continuance. The nonmoving party must cooperate in responding and holding the conference. Even if the motion is agreed to by the parties, the motion must state the basis for the continuance and when the basis became known to the movant, the proposed date by which the parties expect to be ready for trial, and the action and specific dates for the action that will enable movant to be ready for trial. If a continuance is based on dilatory conduct of an attorney or a party, the court may impose sanctions on the attorney, party, or both.

Discovery:

The Supreme Court has significantly amended the discovery rules to bring them more in line with the Federal rules. Fla. R. Civ. P. 1.280(a) will require that the following initial discovery disclosures be made within 60 days after service of the complaint:

(A) the name and, if known, the address, telephone number, and e-mail address of each individual likely to have discoverable information, and the subjects of that information, other than information solely for impeachment;
(B) a copy or a description by category and location of all documents, electronically stored or otherwise, that the disclosing party has in its possession, custody, or control or a description by category and location of such information that the party may use to support its claims or defenses, unless the use would be solely for impeachment;
(C) a computation for each category of economic damages claimed by the disclosing party, including materials bearing on the nature and extent of injuries suffered; and the identification of categories of damages claimed, together with supporting documents; and
(D) a copy of any insurance policy for which the proceeds may be available to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

A party is not excused from making its initial discovery disclosures because it has not fully investigated the case, because it challenges the sufficiency of another party’s initial discovery disclosures, or because another party has not made its initial discovery disclosures. Any objection to providing certain information does not excuse disclosures of remaining information.

The Supreme Court also addressed overbroad or irrelevant discovery requests by amending the scope of discovery defined in Fla. R. Civ. P. 1.280 to provide that discovery must be relevant to any party’s claim or defense and must be proportional to the needs of the case, considering the importance of the issues, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Previously, under Florida rules, parties responding to written discovery were not obligated to update previous discovery responses as the case progressed and additional information became available. This resulted in parties having to serve multiple updated discovery requests to obtain new information. Under the new rules, parties who have made the initial disclosure or who have responded to written discovery must supplement or correct its initial disclosure or written discovery responses in a timely manner if the party learns that in some material respect the disclosure or responses are incomplete or incorrect, or as ordered by the court. There is no language requiring third parties responding to subpoenas, such as medical providers, to supplement the responses to subpoenas. Therefore, parties will presumably be required to update their nonparty requests for production, and possibly nonparty depositions, as the case progresses.

The Supreme Court also addressed bad faith or vexatious discovery requests and responses by adding a new subsection (k) to Fla. R. Civ. P. 1.280. Under this subsection, all parties, whether represented by attorney or pro se, must certify in writing, under signature, that disclosures are complete and correct at the time they were made, and that any discovery request, response or objection is consistent with the rules and is made in good faith. No party has a duty to act on an unsigned disclosure, request, response, or objection until it is signed.

May 23, 2024 Supplemental Supreme Court Order:

The deadlines for the filing of a summary judgment and responses to a summary judgment will no longer be based on a certain number of days before the trial period. The new rules regarding case management orders include deadlines for filing a summary judgment. The response to a summary judgment must be filed within 60 days after the filing of the motion for summary judgment. It is thus contemplated that the deadline for summary judgment motions will likely have to be well before 60 days prior to the commencement of the trial period.

The Supreme Court also added a new Florida rule – Fla. R. Civ. P. 1.202, Conferral Prior to Filing Motions, requiring the parties to confer before setting any non-dispositive motion for hearing, similar to Federal requirements. A certificate of conferral is required. The parties are expected to confer and attempt to resolve the issues before reserving hearing time.

Conclusion

The Supreme Court states that its purpose in amending the Rules is to create a framework for the active case management of civil cases with a focus on adhering to deadlines established early based on the complexity of the case, while providing room for customization by judicial circuit given the varying levels of volume, resources, and available automation, and to provide more effective discovery procedures. It is the Supreme Court’s intent that the amendments will promote the fair and timely resolution of civil cases.

A Guide to Post-Judgment Collection in Massachusetts

As post-judgement collection varies state-by-state, knowing how and when you can collect in your state is paramount. This post will tackle post-judgments in Massachusetts. Judgments in Massachusetts are valid for twenty (20) years from the date of issuance. At the end of the 20-year period, there is a presumption that the debt has been satisfied. However, if the debt is still owed at the end of twenty (20) years, a judgment creditor may move the Court to extend the judgment.

The first step following the issuance of a judgment in a creditor’s favor is to request the original execution from the Court. Pursuant to M.G.L. c. 235, § 17, an execution on a judgment cannot be issued by the Court as a matter of right more than one (1) year after the judgment issues. If a creditor fails to timely request the execution, the creditor will have to file a motion for the issuance of an execution which is at the discretion of the Judge hearing the motion, but subject to the “level of process and judicial scrutiny commensurate with our motion practice.” First National Bank of Boston v. Bernier, 50 Mass.App.Ct. 756 (2001). See also, M.G.L. c. 235, § 19.

In the event a Court has already approved a real estate attachment in favor of the creditor that was recorded in the Registry of Deeds, the resulting execution must be recorded within thirty (30) days of its issuance in order for the execution to date back to the attachment’s lien position. If the original execution is lost, the creditor can move for the issuance of an alias execution in order to pursue collection remedies. M.G.L. c. 235, § 17.

An original execution is needed to take any of the following post-collection actions: (1) record and/or levy against any real property owned by the defendants; (2) to file a supplementary process action to obtain an order for payment from the Court; (3) a bank attachment and/or wage garnishment; and/or (4) to domesticate your judgment in a foreign jurisdiction.

After a creditor has paid all of the amounts owing under the judgment, including interest at a rate of 12% per year, the original execution must be returned to the Court as satisfied within ten (10) days pursuant to M.G.L. c. 235, § 17. If the Execution is not available for return, a party can file a discharge of judgment in its place, but it should also be filed within ten (10) days of satisfaction of the judgment and execution.

Business Records or Inadmissible Hearsay? The Incident Report

Business records prepared in anticipation of litigation serve a crucial role in helping businesses prepare for potential legal challenges, protect their interests, and comply with legal requirements. These records are essential for evidence preservation, legal strategy development, and risk management in the face of future legal disputes or regulatory investigations. The primary purpose is to prepare the business for potential legal challenges by gathering relevant information, documents, and evidence. Documents that might be traditionally hearsay can be offered into evidence at trial if the proponent can meet the requirements as a Business Record Exception to Florida’s hearsay rule. “Florida’s business-records exception appears in section 90.803(6)(a), Florida Statutes (2004).” Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008). “To secure admissibility under this exception, the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.” Id. Additionally: [T]he proponent is required to present this information in one of three formats.

First, the proponent may take the traditional route, which requires that a records custodian take the stand and testify under oath to the predicate requirements. See § 90.803(6)(a), Fla. Stat. (2004). Second, the parties may stipulate to the admissibility of a document as a business record. Third and finally, since July 1, 2003, the proponent has been able to establish the business-records predicate through a certification or declaration that complies with sections 90.803(6)(c) and 90.902(11), Florida Statutes (2004).” Id. at 956-57.

The Business Record exception to the hearsay rule offers parties an “easy way,” to admit documents such as accounting statements, balance sheets, income statements, transaction logs,copies of contracts, agreements, and other legally binding documents related to business operations, partnerships, or transactions, emails, letters, memos, internal investigations, or incident reports. Via the testimony of a records’ custodian at trial, and so long as the proponent of such evidence lays the proper statutory predicate, a business record may be admitted at trial without the necessity of locating and producing the author of the statement itself.

By anticipating litigation, businesses can take steps to protect their interests, ensure compliance with legal requirements, and minimize potential liabilities. Incident reports are often created to gather and document information related to a loss. They help preserve important details, evidence, and witness statements about an occurrence, whether the litigation ensues or not. Incident reports provide detailed accounts of what happened, including dates, times, and – if we are really lucky – admissions by those responsible for the loss.

But is it really that simple? Can an attorney admit an incident report into evidence even if it qualifies under the Business Record Exception to the hearsay rule?

Incident reports are generally NOT admissible, even if they meet the requirements of Florida’s hearsay rule. See Stambor v. One Hundred Seventy-Second Collins Corp., 465 So.2d 1296, 1297 (Fla. 3d DCA 1985) (“[I]t is plain that the accident report which was prepared solely in anticipation of litigation was not admissible in evidence. It constituted, without dispute, hearsay evidence and was not admissible, as urged, under the business records exception to the hearsay rule”). Accident reports and incident reports “show lack of trustworthiness” because such a report is “made solely for litigation purposes to help defend against a claim which might arise from the accident.” Id. Also see e.g. Butcher v. Miami Elevator Co., Inc., 568 So.2d 61, 62 (Fla. 3d DCA 1990) (“damaging statements attributed to the plaintiff by unidentified sources–contained in three letter-reports prepared by a former employee of the condominium’s management company and sent to the insurer–as to how the accident occurred, were inadmissible hearsay”); King v. Auto Supply of Jupiter, Inc., 917 So.2d 1015, 1019 (Fla. 2006) (citing Stambor, supra, and stating, “[t]he facts there showed that the manager prepared the report solely for the purpose of defending the restaurant from a litigation claim by a patron who was injured while on the restaurant’s premises. Because it was not the regular practice of the restaurant’s business activity to make such a report, the court properly concluded the report was inadmissible hearsay for lack of trustworthiness”).

Despite an attorney’s best efforts, a Court can refuse to admit an Incident Report because of a lack of trustworthiness despite distinguishing the relevant case law. Whether or not such a report is prepared as the regular practice of a business activity is strictly scrutinized and interpreted by Courts, and judges are often reluctant to make even a questionable ruling that could result in an issue on appeal.

So, what is the bottom line? What is an attorney to do when faced with this unenviable position at trial? Preparation and planning are key to trial practice, and trials aren’t always won in the courtroom. A strong civil attorney must analyze incident reports at the beginning of litigation with the assumption that the report itself will be excluded. Therefore, the best witness to prepare in this regard is not a records’ custodian, but the author of the document. He or she will become the best witness to the incident – not the report about it.

There was an Easement Around Here Somewhere

Easements, what are they and how does Florida law categorize them? An easement generally provides the right to use another person’s land for a specific purpose. It is a nonpossessory interest, as it is only the “use” of the land, and not the ownership of the land. If the original purpose of the easement has been frustrated, it may not exist except for in name only. When determining if an easement exists, it is critical to review the language of the suspected easement and the purpose of that easement.

An easement can be an Express Easement, an Implied Easement, an Easement of Necessity, Easement in Gross, a Solar Easement, or a Prescriptive Easement. “An express easement must be interpreted by looking at what the original parties and their successors in title intended, which is manifested by both the circumstances and the actions and statements of those parties.”¹ Florida courts treat easements as they do contracts, meaning the plain language should be applied if it is unambiguous. If the language is unambiguous, then the court looks no further than to the language to ascertain the intent of the parties. Express easements are sold or given to a neighboring estate. It is created by an easement agreement in writing between the two estate holders, typically contained within the warranty deed, or it can be created by a court order. A “Person granting easement may restrict easement in any way he [or she] wishes, and easement holder cannot expand easement beyond that contemplated at the time it was granted.”²

There are at least two parties to an easement, the Dominant Estate and the Servient Estate. The Dominant Estate is the beneficiary of the easement, the party that can use the easement and the Servient Estate is the estate that owns the easement or the party where the easement is being used. A unity of title between the Dominant and Servient Estates could frustrate the original purpose of the easement, and therefore, even though the language still exists on the face of the warranty deed, the easement is really just fiction.

Common-Law and Statutory Easements – Chapter §704.01

Florida Statue §704.01 describes a common-law easement that is created by a common grantor of property who grants a piece of land to another party so that it creates a landlocked parcel of land. The grantor, at one time, must have owned both the servient and the dominant properties. Accordingly, a party seeking to establish a common law way of necessity under subsection (1) must establish the following elements:

1. That, at one time, both properties were once owned by the same party;
2. That a common grantor conveyed the landlocked parcel, thereby causing the need for an easement; and
3. That, at the time the landlocked parcel was conveyed, the grantor’s remaining land had access to a public road.³

“In Cirelli, the court explained that, “[b]ecause a common law way of necessity required a common source of title between the dominant and servient parcels, it became obvious that this requirement could not be met in all instances and many parcels of property would remain landlocked. Therefore, the legislature enacted §704.01(2) to provide relief in those instances in which a common law way of necessity could not be obtained.”

“A statutory way of necessity does not require a common source of title and is dependent upon the existence of numerous factors that are not necessary to the creation of a common law way of necessity. Moreover, public policy rather than legal fiction (the presumed intent of the parties) is the basic foundation for statutory ways of necessity.” Id. The court went also took note that “§704.01(2) serves the legitimate public purpose of allowing access to landlocked property so that it may be transformed from useless and unproductive land into valuable and productive property that provides a residence to the owner or produces valuable raw materials such as timber or agricultural products,” as well as the positive effects of development promotion and increased tax revenues. See id.

The Cirelli decision enumerated the following elements necessary to establish a statutory way of necessity under §704.01(2):

1. The claimant’s property is landlocked by property belonging to others;
2. There is not a practicable route of ingress or egress to the nearest public or private road;
3. There is no common law way of necessity under §704.01(1) because there is no unity of title between the landlocked and adjoining tracts;
4. The landlocked property is situated outside a municipality (which is no longer applicable under the current version of the statute);
5. The landlocked property is being used or the owner desires to use the property as a dwelling or for agricultural, timber raising or cutting or stock raising purposes; and
6. The statutory way of necessity sought over the adjoining parcel is the “nearest practicable route” of access.⁴

Additionally, §704.02, under statutory easements, requires compensation to the servient property holder, otherwise the taking would violate the State and Federal Constitution: “No private property shall be taken “except (i) for a public purpose and (ii) and with full compensation therefore paid to each owner. This is called eminent domain. The public purpose is to provide a lawful means by which to accomplish full utilization of the state’s natural resources, their development in the ordinary channels of commerce and industry.”⁵ The existence of the statutory easement would be judicially determined, and the amount of compensation awarded is determined by a jury pursuant to Florida statute.

You also can claim an easement if it is a public road. A road becomes dedicated to public use under either common law dedication or statutory dedication. Common law dedication requires proof of the following:

1. An intention by the landowner to dedicate the property to public use and
2. An acceptance by the public.⁶

Proof of the intention to dedicate and of the acceptance must be clear and unequivocal, and the burden of proof is on the party claiming the dedication.⁷ Requirements for a statutory dedication are contained in § 95.361(1), Fla. Stat. This section provides that if a road constructed by a municipality has been maintained or repaired continuously for four years by the municipality, the road shall be deemed dedicated to the public, and title to the road will vest in the municipality, “if it is a municipal street or road.”

Temporary Construction Easements

Sometimes an easement is needed on a temporary basis simply to allow contractors access to a piece of private property for a specific purpose. These are known as Temporary Construction Easements (“TCE”). An example of this is when a government entity requires access across private property due to a public road expanding. The private property owner is entitled to just compensation even though the taking is only temporary. If the government and the private property owner are not able to resolve the terms of the TCE, the governmental agency can file an eminent domain lawsuit in compliance with the State and Federal Constitution. The TCE only remains as long as is necessary for the project to be completed. It is critical to specifically identify the terms of the TCE so that all parties are aware of the following: 1. The amount and type of compensation, 2. The duration and scope of the TCE, and 3. The party’s obligations for restoration, damages, or violations of the original terms of the TCE.

When dealing with an easement issue, the most important thing to remember is that each easement is handled differently depending on the property and obtaining an opinion from an attorney who deals with easements on a daily basis should give you the peace of mind moving forward.

¹ Condron v. Arey, 165 So.3d 51 (5th DCA, 2015).
² Star Island Associates v. City of St. Petersburg Beach, 433 So.2d 998 (2nd DCA, 1983).
³ Matthews v. Quarles, 504 So. 2d 1246 (Fla. 1st DCA 1986).
⁴ Cirelli v. Ent, 885 So. 2d 423 (Fla. 5th DCA 2004), citing Boyd v. Walker, 776 So. 2d 370 (Fla. 5th DCA 2001), and Ganey v. Byrd, 393 So. 2d 652 (Fla 1st DCA 1980).
⁵ Stein v. Darby, 126 So.2d 313 (Fla. 1st DCA 1961).
⁶ Bishop v. Nussbaum, 175 So.2d 231 (Fla. 2d DCA 1965).
⁷ Roe v. Kendrick, 146 Fla. 119, 200 So. 394 (1941).