text:
Following rulings from other appellate courts in other appellate districts, Florida’s Third District Court of Appeal recently reversed a trial court’s order involuntarily dismissing a mortgagee’s foreclosure against a borrower holding that the mortgagee’s witness from its current mortgage servicer laid a sufficient foundation at trial to admit business records from a prior mortgage servicer necessary to prove a default under Florida’s business records exception to hearsay.
A copy of the opinion in Deutsche Bank v. de Brito is available at: Link to Opinion.
In 2006, a mortgagee provided the borrower with an adjustable rate note and mortgage that contained a negative amortization provision. The note gave the mortgagee the option to change the interest rate and to add any deficiency to the principal.
The borrower subsequently defaulted, and in 2011 the mortgagee filed a foreclosure complaint. The borrower answered the complaint and raised affirmative defenses, but the borrower did not assert as an affirmative defense that the mortgagee had failed to provide her evidence of a change in interest rate or the payment amount.
The trial court conducted a bench trial. The mortgagee presented a witness from its mortgage servicer at trial to prove its case. The witness testified in detail about the servicer’s loan “boarding process, verifications, the payment history, the notice of default and acceleration.” The trial court admitted the note and demand letter into evidence. The trial court also admitted the payment history into evidence by stipulation.
At the conclusion of the trial the mortgagee moved for final judgment and the borrower moved for involuntary dismissal. The trial court subsequently granted the borrower’s motion for involuntarily dismissal.
Although the trial court had already admitted the mortgagee’s documents into evidence during the trial, it concluded that the mortgagee’s testimony regarding the prior servicer’s records was hearsay. Further, despite noting that the note did not require the mortgagee to prove that the borrower received a notice of payment or interest change before it could trigger a default, the trial court found that the mortgagee had failed to prove this.
(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. Section 90.803(6), Florida Statutes (2016); Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008).
The Third DCA observed that a party may establish foundation to admit a business record through a records custodian or other qualified witness. The witness who authenticates the records does not have to be the person who created the business records. See Deutsche Bank Trust Co. Ams. v. Frias, 178 So. 3d 505 (Fla. 4th DCA 2015). Instead, the witness only has to be sufficiently acquainted with the activity to testify that the successor business relies on those records, and that the circumstances indicate the records are trustworthy.” Bank of New York v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015).
Moreover, in the mortgage servicing context after a loan service transferred, the foreclosing mortgagee does not have to present a witness “employed by the prior servicer or who participated in the boarding process.” Ocwen Loan Servicing, LLC v. Gundersen, 204 So. 3d 530 (Fla. 4th DCA 2016). This is because when “a business takes custody of another business’s records and integrates them within its own records, the acquired records are treated as having been ‘made’ by the successor business, such that both records constitute the successor business’s singular ‘business record.’” Calloway, 157 So. 3d 1064, 1071 (Fla. 4th DCA 2015).
Here, the Third DCA found that the witness demonstrated sufficient knowledge of the business record’s history to testify about the loan boarding process, the servicing platform, and the process for creating the default notice and demand letter.
Specifically, the witness testified that the mortgage servicer absorbed the prior servicer and that the servicer verified the accuracy of all the prior servicer’s records before incorporating those records into its own records. The Appellate Court held that the trial court therefore should have admitted the testimony concerning the third-party default letter and the loan payment history printout as an exception to the hearsay rule.
Thus, the Third DCA concluded that the witness authenticating the mortgagee’s records provided sufficient testimony to meet the requirements to admit the records under the business record exception to hearsay.
The Third DCA next addressed the trial court’s conclusion that it properly declined to admit the testimony and demand letter into evidence because the mortgagee’s witness was not sufficiently familiar with the practices and procedures of one of the servicer’s third-party vendors. However, the Third DCA rejected this rationale “because the business records exception does not contain such a requirement.” Cayea v. CitiMortgage, Inc., 138 So. 3d 1214, 1217 (Fla. 4th DCA 2014).
Instead, the witness only had to show that he was sufficiently familiar with the creation of the demand letter to authenticate it. Calloway, 157 So. 3d 1064. Here, the witness met this requirement because he testified about the loan boarding process “and properly laid the foundation for the admissibility of the loan payment history and the demand letter.” As such, the Appellate Court held, the trial court erred when it excluded the demand letter from evidence after the mortgagee had laid the proper foundation to meet the business record exception.
The Third DCA next held that the trial court also should have admitted the payoff printout as a business records exception to the hearsay rule. A party may use the business records exception to hearsay to admit printouts of data prepared for trial even if the party does not keep the printout in the ordinary course of business “so long as a qualified witness testifies as to the manner of preparation, reliability, and trustworthiness.” Cayea, 138 So. 3d at 1217. Thus, the Appellate Court held, the mortgagee proved via the printout that the borrower did not make the June 2008 payment and all subsequent payments, and the trial court erred when it ruled that the mortgagee did not prove a default.
Finally, the Third DCA also concluded that the borrower waived any affirmative defense that the mortgagee had to prove that it provided notice of the interest rate and payment change to the borrower because the borrower never pleaded this affirmative defense. Moreover, the Appellate Court held, the note contains no such requirement to notify the borrower of any change in interest rate or payment amount.
Thus, the Third DCA reversed the involuntary dismissal and remanded to enter a final judgment of foreclosure in favor of the mortgagee.

matches: v. v. v. v. v. v.


Rehearing Denied Oct. 14, 1946.
Mr. Edward Lamb, of Toledo, Ohio, for petitioners.
Several important issues are raised by this case concerning the proper determination of working time for purposes of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C. § 201 et seq., 29 U.S.C.A. § 201 et seq.
The Mt. Clemens Pottery Company, the respondent, employs approximately 1200 persons at its pottery plant at Mt. Clemens, Michigan; about 95% of them are compensated upon a piece work basis. The plant covers more than eight acres of ground and is about a quarter of a mile in length. The employees' entrance is at the northeast corner. Immediately adjacent to that entrance are cloak and rest rooms where employees may change to their working clothes and place their street clothes in lockers. Different shifts begin at different times during the day, with whistles frequently indicating the starting time for productive work. The whistles which blow at 6:55 and 7:00 a.m., however, are the most commonly used. An interval of 14 minutes prior to the scheduled starting time for each shift permits the employees to punch time clocks, walk to their respective places of work and prepare for the start of productive work. Approximately 200 employees use each time clock during each 14-minute period and an average of 25 employees can punch the clock per minute. Thus a minimum of 8 minutes is necessary for the employees to get by the time clock. The employees then walk to their working places along clean, painted floors of the brightly illuminated and well ventilated building. They are free to take whatever course through the plant they desire and may stop off at any portion of the journey to converse with other employees and to do whatever else they may desire. The minimum distances between time clocks and working places, however, vary from 130 feet to 890 feet, the estimated walking time ranging from 30 seconds to 3 minutes. Some of the estimates as to walking time, however, go as high as 6 to 8 minutes. Upon arriving at their places of work, the employees perform various preliminary duties, such as putting on aprons and overalls, removing shirts, taping or greasing their arms, putting on finger cots, preparing the equipment for productive work, turning on switches for lights and machinery, opening windows and assumbling and sharpening tools. Such activities, it is claimed, consume 3 or 4 minutes at the most. The employees are also allowed a 14-minute period at the completion of the established working periods to leave the plant and punch out at the time clocks.
Working time is calculated by respondent on the basis of the time cards punched by the clocks. Compensable working time extends from the succeeding even quarter hour after employees punch in to the quarter hour immediately preceding the time when they punch out. Thus an employee who punches in at 6:46 a.m., punches out at 12:14 p.m., punches in again at 12:46 p.m. and finally punches out at 4:14 p.m. is credited with having worked the 8 hours between 7 a.m. and 12 noon and between 1 p.m. and 4 p.m.—a total of 56 minutes less than the time recorded by the time clocks.
Seven employees and their local union, on behalf of themselves and others similarly situated, brought this suit under § 16(b) of the Fair Labor Standards Act, alleging that the foregoing method of computation did not accurately reflect all the time actually worked and that they were thereby deprived of the propero vertime compensation guaranteed them by § 7(a) of the Act. They claimed inter alia that all employees worked approximately 56 minutes more per day than credited by respondent and that, in any event, all the time between the hours punched on the time cards constituted compensable working time.
The District Court agreed 'in the main' with the master's findings and conclusions with one exception. It felt that the evidence demonstrated that practically all of the employees had punched in, walked to their places of work and were ready for productive work at from 5 to 7 minutes before the scheduled starting time, 'and it does not seem probable that with compensation set by piece work, and the crew ready, that these employees didn't start to work immediately.' The court accordingly established a formula, applicable to all employees, for computing this additional time spent in productive work. Under the formula, 5 minutes were allowed for punching the clock and 2 minutes for walking from the clock to the place of work—a total of 7 minutes which were not to be considered as working time. All minutes over those 7 as shown by the time cards in the morning and all over 5 at the beginning of the afternoon were to be computed as part of the hours worked. The court found no evidence of productive work after the scheduled quitting time at noon or night. In other words, working time under this formula extended from the time punched in the morning, less 7 minutes, to the scheduled quitting time at noon and from the time punched at the beginning of the afternoon, less 5 minutes, to the scheduled quitting time for the day. No reason was given for the 2-minute differential between the morning and afternoon punchins. The use of this formula led the District Court to enter a judgment against respondent in the amount of $2,415.74 plus costs. 60 F.Supp. 146.
But we believe that the Circuit Court of Appeals, as well as the master, imposed upon the employees an improper standard of proof, a standard that has the practical effect of impairing many of the benefits of the Fair Labor Standards Act. An employee who brings suit under § 16(b) of the Act for unpaid minimum wages or unpaid overtime compensation, together with liquidated damages, has the burden of proving that he performed work for which he was not properly compensated. The remedial nature of this statute and the great public policy which it embodies, however, militate against making that burden an impossible hurdle for the employee. Due regard must be given to the fact that it is the employer who has the duty under § 11(c) of the Act to keep proper records of wages, hours and other conditions and practices of employment and who is in position to know and to produce the most probative facts concerning the nature and amount of work performed. Employees seldom keep such records themselves; even if they do, the records may be and frequently are untrustworthy. It is in this setting that a proper and fair standard must be erected for the employee to meet in carrying out his burden of proof.
When the employer has kept proper and accurate records the employee may easily discharge his burden by securing the production of those records. But where the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes a more difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer's failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee's labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. See Note, 43 Col.L.Rev. 355.
The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of § 11(c) of the Act. And even where the lack of accurate records grows out of a bona fide mistake as to whether certain activities or non-activities constitute work, the employer, having received the benefits of such work, cannot object to the payment for the work on the most accurate basis possible under the circumstances. Nor is such a result to be condemned by the rule that precludes the recovery of uncertain and speculative damages. That rule applies only to situations where the fact of damage is itself uncertain. But here wea re assuming that the employee has proved that he has performed work and has not been paid in accordance with the statute. The damage is therefore certain. The uncertainty lies only in the amount of damages arising from the statutory violation by the employer. In such a case 'it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts.' Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250, 75 L.Ed. 544. It is enough under these circumstances if there is a basis for a reasonable inference as to the extent of the damages. Eastman Kodak Co. of New York v. Southern Photo Materials Co., 273 U.S. 359, 377—379, 47 S.Ct. 400, 404, 405, 71 L.Ed. 684; Palmer v. Connecticut Railway & Lighting Co., 311 U.S. 544, 560, 561, 61 S.Ct. 379, 384, 385, 85 L.Ed. 336; Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 263—266, 66 S.Ct. 574, 579, 580.
We therefore turn to the facts of this case to determine what the petitioning employees have proved and are entitled to in light of the foregoing considerations: (1) On the issue as to the extent of the actual productive work performed, we are constrained to agree with the special master that it began and ended at the scheduled hours. This was purely a factual issue. The master made his findings in this respect through the weighing of conflicting evidence, the judging of the reliability of witnesses and the consideration of the general conduct of the parties to the suit. The master thereby concluded that productive work did not begin before the scheduled hours except in a few instances which were counterbalanced by occasions when work began after the scheduled hours or ended before the scheduled cessation of productive work. Our examination of the record leads us to acquiesce in these findings since they are supported by substantial evidence and are not clearly erroneous. And the court below correctly held that the District Court erred in failing to accept these findings and in creating a formula of compensation based upon a contrary view. Rule 53(e)(2) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. See Tilghman v. Proctor, 125 U.S. 136, 150, 8 S.Ct. 894, 901, 31 L.Ed. 664; Davis v. Schwartz, 155 U.S. 631, 636, 637, 15 S.Ct. 237, 239, 39 L.Ed. 289.
(2) The employees did not prove that they were engaged in work from the moment when they punched in at the time clocks to the moment when they punched out. They were required to be ready for work at their benches at the scheduled starting times. They were given 14-minute periods in which to punch the time clocks, walk to the places of work and prepare for productive labors. But there was no requirement that an employee check in or be on the premises at any particular time during that 14-minute interval. As noted by the District Court, there was no evidence 'that if the employee didn't get there by 14 minutes to seven he was fired and there is much testimony to prove that stragglers came in as late as one minute to seven.' 60 F.Supp. at page 149. Indeed, it would have been impossible for all members of a particular shift to be checked in at the same time in view of the rate at which the time clocks were punched. The first person in line at the clock would be checked in at least 8 minutes before the last person. It would be manifestly unfair to credit the first person with 8 minutes more working time than credited to the last person due to the fortuitous circumstance of his position in line.
Moreover, it is generally recognized that time clocks do not necessarily record the actual time worked by employees. Where the employee is required to be on the premises or on duty at a different time or where the payroll records or other facts indicate that work starts at an earlier or later period the time clock records are not controlling. Only when they accurately reflect the period worked can they be used § an appropriate measurement of the hours worked. In this case, however, the evidence fails to indicate that the time clock records did so mirror the working time. They did not show the time during which the employees were compelled to be on the premises or at any prescribed place of work. They thus could not form the sole basis of determining the statutory workweek. See Interpretative Bulletin No. 13, paragraphs 2 and 3, issued by the Administrator of the Wage and Hour Division, U.S. Department of Labor; Wage and Hour Manual, Cumulative Edition, 1944-1945, p. 234.
(3) The employees did prove, however, that it was necessary for them to be on the premises for some time prior and subsequent to the scheduled working hours. The employer required them to punch in, walk to their work benches and perform preliminary duties during the 14-minute periods preceding productive work; the same activities in reverse occurred in the 14-minute periods subsequent to the completion of productive work. Since the statutory workweek includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace, the time spent in these activities must be accorded appropriate compensation.
No claim is here made, though, as to the time spent in waiting to punch the time clocks and we need not explore that aspect of the situation. See Cameron v. Bendix Aviation Corp., 65 F.Supp. 510. But the time necessarily spent by the employees in walking to work on the employer's premises, following the punching of the time clocks, was working time within the scope of § 7(a). Ballard v. Consolidated Steel Corp., D.C., 61 F.Supp. 996; Ulle v. Diamond Alkali Co., 8 WHR 1042. Such time was under the complete control of the employer, being dependent solely upon the physical arrangements which the employer made in the factory. Those arrangements in this case compelled the employees to spend an estimated 2 to 12 minutes daily, if not more, in walking on the premises. Without such walking on the part of the employees, the productive aims of the employer could not have been achieved. The employees' convenience and necessity, moreover, bore no relation whatever to this walking time; they walked on the employer's premises only because they were compelled to do so by the necessities of the employer's business. In that respect the walking time differed vitally from the time spent in traveling from workers' homes to the factory. Dollar v. Caddo River Lumber Co., D.C., 43 F.Supp. 822; Walling v. Peavy-Wilson Lumber Co., D.C., 49 F.Supp. 846. Cf. Commissioner v. Flowers, 326 U.S. 465, 66 S.Ct. 250. It follows that the time spent in walking to work on the employer's premises, after the time clocks were punched, involved 'physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.' Tennessee Coal, Iron & R. Co. v. Muscoda Local, 321 U.S. 590, 598, 64 S.Ct. 698, 703, 88 L.Ed. 949, 152 A.L.R. 1014; Jewell Ridge Coal Corp. v. Local No. 6167, U.M.W.A., 325 U.S. 161, 164—166, 897, 65 S.Ct. 1063, 1065, 1066, 1550, 89 L.Ed. 1534, 2007. Work of that character must be included in the statutory workweek and compensated accordingly, regardless of contrary custom or contract.
We do not, of course, preclude the application of a de minimis rule where the minimum walking tie is such as to be negligible. The workweek contemplated by § 7(a) must be computed in light of the realities of the industrial world. When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved. The de minimis rule can doubtless be applied to much of the walking time involved in this case, but the precise scope of that application can be determined only after the trier of facts makes more definite findings as to the amount of walking time in issue.
(4) The employees proved, in addition, that they pursued certain preliminary activities after arriving at their places of work, such as putting on aprons and overalls, removing shirts, taping or greasing arms, putting on finger cots, preparing the equipment for productive work, turning on switches for lights and machinery, opening windows and assembling and sharpening tools. These activities are clearly work falling within the definition enunciated and applied in the Tennessee Coal and Jewell Ridge cases. They involve exertion of a physical nature, controlled or required by the employer and pursued necessarily and primarily for the employer's benefit. They are performed solely on the employer's premises and are a necessary prerequisite to productive work. There is nothing in such activities that partakes only of the personal convenience or needs of the employees. Hence they constitute work that must be accorded appropriate compensation under the statute. See Walling v. Frank, D.C., 62 F.Supp. 261; Philpott v. Standard Oil Co., D.C., 53 F.Supp. 833. Here again, however, it is appropriate to apply a de minimis doctrine so that insubstantial and insignificant periods of time spent in preliminary activities need not be included in the statutory workweek.
The master did not deny that such activities must be included within the employees' compensable workweek or that the evidence demonstrated that the employees did in fact engage in such activities. He denied recovery solely because the amount of time taken up by the activities and the proportion of it spent in advance of the established starting time had not been proved by the employees with any degree of reliability or accuracy. But, as previously noted, the employees cannot be barred from their statutory rights on such a basis. Unless the employer can provide accurate estimates, it is the duty of the trier of facts to draw whatever reasonable inferences can be drawn from the employees' evidence as to the amount of time spent in these activities in excess of the productive working time.
(5) As to waiting time before and after the shift periods, the special master found that the employees had not proved that they were in fact forced to wait or that they were not free to spend such time on their own behalf. This was also a question of fact and the presence of substantial evidence to support the master's finding precludes any different result.
This Court has agreed largely with the Court of Appeals in holding that the District Court was in error in not accepting them aster's findings of fact in the face of Rule 53(e)(2) of the Federal Rules of Civil Procedure which requires that: 'In an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous.' 28 U.S.C. following § 723c, 28 U.S.C.A. following section 723c.
This Court, accordingly, agrees that the trial court must accept as findings of fact in this case that the productive work performed by the employees began and ended at the regularly scheduled hours of work, on the even quarter-hours; that the time clocks were not controlling in establishing the exact minute of starting or stopping work; that the time spent in punching time clocks did not constitute compensable work; and that the 'waiting time,' if any, before and after the shift periods was not compensable time.
The master determined that the time spent in walking from the time clocks to the places of work was not compensable working time in view of the established custom in the industry and in the plant. Moreover, the employees were free to take whatever course through the plant they desired and to stop off at any point to talk with other employees or to do whatever else they liked. Some workers came to the time clocks as late as one minute before the time to reach their place of productive work. The so-called 'preliminary activities' are identified in this case as those of 'putting on aprons and overalls, removing shirts, taping or greasing arms, putting on finger cots, preparing the equipment for productive work, turning on switches for lights and machinery, opening windows and assembling and sharpening tools.' The master found that the employees had not offered proof of the time used for these purposes with a sufficient degree of reliability or accuracy for it to become the basis for recovery of overtime compensation. The employer would have still greater difficulty in keeping an accurate record of the time spent by each employee in such activities. These activities are of such a nature that the knowledge of them and the time spent in doing them rests particularly with the employees themselves. Such activities are of quite a different character from those made the basis of compensable time in the coal mine portal-to-portal cases. Tennessee Coal, Iron & R. Co. v. Muscoda Local, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949, 152 A.L.R. 1014; Jewell Ridge Corp. v. Local No. 6167, N.M.W.A., 325 U.S. 161, 65 S.Ct. 1063, 89 L.Ed. 1534.
Some idea of the shortness of the time and the smallness of the compensation involved in the 'preliminary activities,' in comparison with the cumbersomeness of any system for accurately recording the time spent in doing them, is apparent from the formula to which the District Court resorted in attempting to reach its solution of the difficulty. Under that formula, for example, the District Court found no basis for compensation for such activities after the scheduled quitting time. Compensable time spent in such activities was limited to a short period before the schedule hours of beginning productive work in the morning and again on resuming work after lunch. Employees were allowed, or encouraged, to come to the plant 14 minutes ahead of the quarter hour at which their scheduled productive work began. The District Court et imated that on an average seven minutes should be allowed, each morning, for punching a time clock and walking from it to the employee's place of productive work. As to the 'walking time' the court said, 'the preparation even after punching the clock wouldn't take more than one or one and a half minutes and to the farthest point in the plant from the time clock wouldn't take more than 2 minutes.' 60 F.Supp. 146, 149. If an employee came to the plant 14 minutes ahead of time, this left a maximum of seven minutes, plus 'walking time,' as the basis for a compensatory claim. The compensatory time in many cases would be much less. Similarly, under the District Court formula, employees returning to work after lunch were estimated to consume five minutes in punching the clock and walking to their places of productive work. This would leave a maximum of nine minutes, plus 'walking time.' At that hour of the day the workers already would be in their work clothes and there rarely would be more than a minute or two required for the preliminary activities for which compensation was claimed.
To sustain the position of the Court in requiring these additional moments to be recorded and computed as overtime, it is necessary to hold that Congress, in using the word 'workweek,' meant to give that word a statutory meaning different from its commonly understood reference to the working hours between 'starting' and 'quitting' time—or from 'whistle to whistle.' There is no evidence that Congress meant to redefine this common term and to set aside long established contracts or customs which had absorbed in the rate of pay of the respective jobs recognition of whatever preliminary activities might be required of the worker by that particular job. For example, if the plant be one located at an inconvenient place, or if the workers have to change into working clothes at the plant, or have to grease or tape their arms before going to work, these are items peculiar to the job, and compensation for them easily can be made in the rate of pay per hour, per week or per piece, and all special stop-watch recording of them eliminated.


232 U.S. 469 - Malinda Thurston v.
232 US 469 Malinda Thurston v.
UNITED STATES and Ute Indians. Submitted December 22, 1913. Decided February 24, 1914.
Messrs. Harry Peyton, F. Sprigg Perry, and John W. Clark for appellant.
Assistant Attorney General Thompson for appellees.
This suit was begun in the court of claims in 1892, under the Indian depredation act of March 3, 1891 (26 Stat. at L. 851, chap. 538, U. S. Comp. Stat. 1901, p. 758), to recover from the United States and the Ute Indians the value of certain personal property alleged to have belonged to appellant's intestate, and to have been taken and destroyed by members of the Ute tribe in 1857. It was also alleged that the claim had been presented to, and was pending before, the House of Representatives in 1877 and 1878. The allegations of the petition were traversed, and a trial resulted in a judgment of dismissal for want of jurisdiction, upon the ground that the claim accrued before July 1, 1865, and had not been presented to Congress, or any officer authorized to inquire into such claims, prior to the act of 1891, and so was not cognizable under that act.
The facts disclosed in the findings, and material to be noticed, are these: The depredation occurred at Mountain Meadows, Utah, September 11, 1857, while the appellant's intestate was en route, with an emigrant train, from Arkansas to California, his life being taken at the time. In 1877 and again in 1878 one of his daughters, on behalf of his heirs, presented to Congress a petition praying that they be reimbursed for the property from the public treasury. The petitions, as also the accompanying affidavits, represented that the depredation was committed by Mormons acting under the direction of Brigham Young, and contained no suggestion that it was in anywise chargeable to the Ute Indians or to any Indians. In response to each of the petitions a bill was introduced in the House of Representatives, reciting that the depredation was committed by Mormons at the instance of Brigham Young, and making an appropriation to reimburse the heirs as prayed in the petition, but neither bill was passed, and the claim was not otherwise recognized by Congress. In no other way or form was the claim presented to or pending before any department of the government, or any of its officers or agents, prior to the passage of the act of 1891.
Preliminarily, it is well to observe that the court of claims has no general jurisdiction over claims against the United States, and can take cognizance only of those which, by the terms of some act of Congress, are committed to it. Johnson v. United States, 160 U. S. 546, 549, 40 L. ed. 529, 531, 16 Sup. Ct. Rep. 377.
Assuming, without so deciding, that the clause quoted from the first section, if not otherwise restrained, is broad enough to embrace the present claim, notwithstanding some of its particulars not here noticed, we come to consider whether it is within the restrictive clause in the 2d section, declaring that no claim accruing prior to July 1, 1865, shall be considered unless it was allowed or was pending prior to the passage of the act. To a better understanding of this clause and the preceding one in the same section it is well to recall that there was an existing limitation of time upon the prosecution of claims against the government (Rev. Stat. § 1069, U. S. Comp. Stat. 1901, p. 740, and that there had been and were then various statutory and treaty provisions regulating the manner of presenting claims for Indian depredations, by whom they were to be examined, and the evidence required to sustain them. 4 Stat. at L. 731, chap. 161, § 17; 11 Stat. at L. 401, chap. 66, § 8; 12 Stat. at L. 120, Res. No. 26; 16 Stat. at L. 360, chap. 296, § 4; 17 Stat. at L. 190, chap. 233, § 7, U. S. Comp. Stat. 1901, p. 254; Rev. Stat. §§ 466, 2098, 2156, 2157, U. S. Comp. Stat. 1901, p. 264; 23 Stat. at L. 376, chap. 341; 13 Stat. at L. 674, art. 6; 15 Stat. at L. 620, arts. 5 and 6. Both clauses must be read in the light of those limitations and provisions, and when this is done, it is apparent that Congress, while disposed to be very liberal inwaiving prior restrictions upon the time and mode of presenting such claims, deemed it unwise to open the door so wide in respect of claims accruing prior to July 1, 1865, and therefore declared that the court should not consider them, save where they had been allowed or had been pending prior to the passage of the act.
The present claim accrued in 1857, was never allowed, and was not a pending claim before the date of the act; unless it can be said that it was pending before Congress in 1877 and 1878. We think this cannot properly be said. The claim to which the attention of Congress was invited in those years was not for an act of depredation by Indians, but, as was stated in the petitions and accompanying affidavits and in the bills introduced in response thereto, was for a depredation by Mormons. No one could understand from the petitions and affidavits or from the bills that there was any purpose to claim indemnity from the government on the ground that the depredation was committed by its Indian wards, or to obtain reparation from the latter through the exertion of the government's control over them. Rightly speaking, it was merely an appeal to the bounty or generosity of Congress, and probably was so regarded by the latter. At all events it was not an assertion or presentation of the claim which is the subject of this suit, for the latter is for an act of depredation by Indians, not by Mormons. We are accordingly of opinion that the claim is one jurisdiction of which is expressly withheld from the Court of Claims by the act of 1891.


text:
22 volume set. British Official history of the War. 1st ed. London : Macmillan, 1922-1940. Bound in publisher's red cloth, with gold lettering. Good bindings and cover. Library markings on spines & end sheets, perforated stamp on title page. Pages clean and white. 14 volumes + 8 Map volumes, containing color maps. <br> History of the Great War Based on Official Documents by Direction of the Committee of Imperial Defence series. The History of the Great War Military Operations volumes were originally intended as a technical history for military staff, using papers not available to the general public. The narrative is arranged in chronological order, as far as possible. The intention was to learn lessons, both tactical and logistic, from the war and also to provide an authoritative historical account. In the 1990s the Imperial War Museum reprinted these books, but with black and white maps. These have the original color maps.
Contents: [4 volumes from 1914]: 1914 v. 1. Mons, the Retreat to the Seine, the Marne and the Aisne, August - October 1914 / Brigadier-General Sir James E. Edmonds, 1922; 1914 v. 2. Antwerp, La Bassee, Armentieres, Messines and Ypres, October - November 1914 / James E. Edmonds, 1925; 1914 Maps v. 1; 1914 Maps v. 2; [4 volumes from 1915]: 1915 v. 1. Winter 1914-15: Battle of Neuve Chapelle: Battles of Ypres / James E. Edmonds and Captain G.C. Wynne, 1927; 1915 V. 2. Battles of Aubers Ridge, Festubert, and Loos / James E. Edmonds, 1928; [5 volumes from 1916]: 1916 V. 1. Douglas Haig's Command to the 1st July: Battle of the Somme / James E. Edmonds, 1932 + Appendices; 1916 V. 2. 2 July 1916 to the end of the Battles of the Somme / Captain Wilfrid Miles, 1938 + Maps and Appendices; [3 volumes from 1917]: 1917 V. 1. The German Retreat to the Hindenburg Line and the Battles of Arras / Captain Cyril Falls, 1940; 1917 Appendices; 1917 Maps; ; [6 volumes from 1919]: 1918 V. 1. The German March Offensive and its Preliminaries / James E. Edmonds, 1935; 1918 Appendices; 1918 V. 2. March-April: Continuation of the German Offensives / James E. Edmonds, 1937; 1918 V. 3. May-July: The German Diversion Offensives and the First Allied Counter-Offensive / James E. Edmonds, 1939; 1918 Maps v. 1; 1918 Maps v. 2.

matches: v. v. v. v. v. V. V. V. V. V. V. V. v. v.


text:
Recently, I blogged on a Law Court decision reflecting the predicament that arises with ordinances with appellate, not de novo, ZBA review of CEO decisions. See Appletree, or CEO, J.D.? I’m now updating the chapter on civil appeals in A Practical Guide to Superior Court Practice in Maine (MCLE 2015), a process that involves reviewing all the Law Court’s published 80B and 80C decisions from 2015-2017. That exercise underscores (a) what an unholy mess things are; and (b) the Court’s multiple, as-yet unheeded pleas for action.
To trace the Court’s mounting frustration, see CJ Saufley’s concurrence in Beckford v. Clifton, 2014 ME 156; then footnote 2 in The Withram Family Limited Partnership v. Town of Bar Harbor, 2015 ME 12; then note 1 in Hartwell v. Town of Ogunquit, 2015 ME 51; then Justice Gorman’s description of the incomprehensible ordinance the Court wrestled with in Desfosses v. City of Saco, 2015 ME 151. That’s just 2014-2015. It hasn’t gotten any better.
The problems referenced in these and other Law Court decisions include identifying whether a municipal decision is reviewable at all; if so, when it’s final and which is the right ruling to appeal; how long you have to file the appeal; whether there is an intermediate administrative review first; if so, by what body, using what standard; and at the end of running this administrative gauntlet, making sure you having a reviewable record for the next, judicial stage of review.
When you file a Rule 80B complaint, the Superior Court always goes through the drill of identifying whether the ZBA engaged in the proper review, appellate or de novo. If it’s appellate, you not only have the record problem noted in Appletree, but a plethora of other issues, such as what happens if there is a prejudicial procedural problem before the ZBA. If the ZBA engaged in an appellate review, the Court ignores the ZBA decision substantively and reviews the first administrative decision, but the SJC has left open the question of whether that due process violation matters. Fitanides v. City of Saco, 2015 ME 32, n.5. Also, it sounds like a jurisdictional problem if the ZBA looks at something de novo when the Ordinance only gives it the power for appellate review, and vice versa. But the Law Court has ruled that if a party doesn’t raise the standard of review issue at the ZBA level, the issue isn’t preserved for judicial review. Brown v. Town of Starks, 2015 ME 47.
For discussion of other, similar imbroglios, see our blog entries on Bryant v. Town of Camden, 2016 ME 27 (Bryant and the (not so) Final Word); and Campbell v. City of South Portland, 2015 ME 125 (BOA Appellant Beware!). Rule 80C offers its own and analogous issues, e.g. Bailey v. Dept. of Marine Resources, 2015 ME 128 (80Cs and the complicated question of time to appeal — again). A host of due process questions lurk for matters delegated to CEOs and planners without adequate notice and opportunity to be heard for the applicant and abutters. I could go on.
The question is what to do about all this?
In Hartwell, CJ Saufley suggested a model ordinance, citing such a proposal in a 2006 Brookings Institution report. Sadly, this proposal has gone nowhere. And even if people roused themselves to work on such a project, drafting an entire model ordinance and fully vetting it would take another gazillion years.
Nonetheless, there could be targeted legislation to fix at least a chunk of these appellate review problems. An opt-out provision could be included, if towns thought such language at the State level intruded on their home rule authority.
Maybe someone else has some bright ideas. Otherwise, we will just keep muddling through, and your trusty reporter will keep blogging on the various questions and pitfalls as they arise ad hoc before the Court.
Judge Posner and Mary Ann Lynch, Esq.

matches: v. v. v. v. v. v. v. v. v.


The practice and procedure for Protection from Abuse (PFA) cases in Pennsylvania is governed by statutory Pennsylvania law. Specifically, the Pennsylvania Protection from Abuse Act is the law that governs PFA cases in Pennsylvania. Chester County, as one of Pennsylvania's 67 counties, must comply with Pennsylvania PFA law. In addition, however, and also per Pennsylvania law, individual Pennsylvania counties including Chester County, can enact "Local Rules" to address aspects of how PFA cases are governed. As is the case in many Pennsylvania counties, Chester County has done as such, and these "Local Rules" are codified in the Chester County Rules of Civil Procedure (C.C.R.C.P.). There are six (6) Chester County Rules of Civil Procedure dealing with Protection from Abuse practice. C.C.R.C.P. 1901.2.A - 1905.A.
Both Pennsylvania PFA law and Pennsylvania county "Local Rules" change over time. In the case of Chester County, the Pennsylvania Protection from Abuse Act was amended after the most recent amendments to Chester County's Rules of Civil Procedure. Ultimately, Chester County PFA practice and procedure is based upon a combination of Pennsylvania PFA law and Chester County Local Rules. Understanding both is critical to success whether a party is seeking a PFA order, or defending against a PFA petition.
The Protection from Abuse Act in Pennsylvania requires the applicable Family Court, and accordingly, the Chester County Family Court in PFA cases in Chester County, to "provide simplified forms and clerical assistance in English and Spanish to help with the writing and filing of the petition and for a protection order for an individual not represented by counsel." 23 Pa. C.S. § 6106(h)(1). Chester County Family Court is in full compliance with this statutory mandate in the person of Sara Moix, who is the Assistant Family Court Administrator for Chester County Family Court, located at 201 W. Market Street, West Chester, PA 19382. The phone number to Chester County Family Court 610-344-6405.
How does a plaintiff file for a PFA in Chester County?
Chester County Local Rules regarding the commencement of an Protection from Abuse action in Chester County provide that the petition shall be substantially in the form available from the Chester County Family Court Administrator. C.C.R.C.P. 1901.3A. The Local Rule also provides that all private attorney petitions “shall be reviewed and scheduled by the Chester County Family Court Administrator and filed with the Chester County Office of the Prothonotary prior to submission to the Family Court signing Judge for entry of a Temporary Ex Parte Protection Order.” The Chester County Prothonotary is located at 201 W. Market St # 1425, West Chester, PA 19380. The phone number to the Chester County Prothonotary is 610-344-6300.
The Pennsylvania PFA Act provides that "no plaintiff [the "filing party;" also referred to as the "petitioner"] seeking relief under the Protection from Abuse Act shall be charged any fees or costs associated with the filing, issuance, registration or service of a petition, motion, complaint, order or other filing. See 23 Pa.C.S. § 6106(b) and (g.1). Costs are assessed by the Court at a later stage of the proceedings against the defendant (also known as the "respondent"); in PFA cases in Chester County, the Chester County Court of Common Pleas is the authority that will assess costs against the PFA defendant. As with all Pennsylvania counties, personal service upon the PFA defendant is required to establish jurisdiction.
Local Rules requires that a PFA "cover sheet" be filed with the Chester County Prothonotary and served upon all other parties to the action. C.C.R.C.P. 205.2(b). A "Notice of Hearing" and "Order" (specific to Protection from Abuse actions) must also be attached to the PFA Petition.
Local Rules also require attorneys to file an "Entry of Appearance" with every initial pleading or initial filing in a case. C.C.R.C.P. 1012.1. A party's attorney should include their attorney identification number.
How are emergency/ex parte matters handled by Chester County Family Court?
The Pennsylvania PFA Act requires that PFA proceedings be commenced by filing a petition. 23 Pa. C.S. §6106(a). The Pennsylvania PFA Act requires a hearing within ten (10) business days of filing. 23 Pa. C.S. §6107(a). Secondarily, the PFA Act provides that the plaintiff may request immediate, temporary relief at the outset of the action if there exists "Immediate and present danger of abuse." 23 Pa. C.S. §6107(b). More often than not, Protection from Abuse actions begin with applications by the plaintiff for an immediate, temporary order.
Chester County Local Rules concern commencement of an Protection from Abuse action in Chester County and provide that the petition shall be substantially in the form available from the Chester County Family Court Administrator. C.C.R.C.P. 1901.3A. The Local Rule also provides that all private attorney petitions “shall be reviewed and scheduled by the [Chester County] Family Court Administrator and filed with the [Chester County] Office of the Prothonotary prior to submission to the [Chester County] Family Court signing Judge for entry of a Temporary Ex Parte Protection Order.” A temporary Protection from Abuse should be included in the initial PFA filing.
The Pennsylvania PFA Act states that if there is an allegation that there exists "immediate and present danger of abuse to the plaintiff or minor children, the Court shall conduct an ex parte proceeding." 23 P. S. §6107(b). In practice, the Pennsylvania Family Courts, Chester County Family Court included, will not necessarily conduct a "proceeding." Petitions should, therefore, include all facts necessary for the Judge to act on the strength of the petition alone. If the Pennsylvania Protection from Act was followed to the letter, the Court would, at least, be required to actually interview the petitioner or some knowledgeable witness "on the record." A petitioner's attorney should have their client available to speak with the Judge if requested.
Although the Court must conduct an ex parte proceeding, the Court is by no means required to enter an order, "ex parte" (the Latin legal term "for one party;" in PFA cases, granted on the request of and for the benefit of one party only), or for that matter, enter any temporary order at all. The Pennsylvania PFA Act provides that "the Court may enter such a temporary order as it deems necessary to protect the plaintiff or minor children when it finds they are in immediate and present danger of abuse." 23 Pa. C.S. § 6107(b)(2).
The Pennsylvania PFA Act does not take away the Court's prerogative to require that the respondent be notified for the purpose of hearing the respondent on the issue of whether to enter the requested temporary order. The Court may hear the respondent later on the same day that the application for emergency relief was submitted to the Court, on the following day, or on the day after, and so on, just so that the delay is not so long as to deprive the plaintiff of the right to a temporary order under appropriate circumstances as provided in the Act. The requirement that the case in chief be heard within ten (10) business days has bearing here.
Ancillary PFA Issues in Chester County - Custody, Support, et al.
Although the Pennsylvania PFA act clearly allows the inclusion of claims for support, the Court may decline to consider support matters raised in PFA petitions. Petitioners will be directed to the applicable Pennsylvania county's Domestic Relations Office to file a complaint; the Chester County Domestic Relations Office is located in the Chester County Family Court building at 201 W. Market St, West Chester, PA 19382. The phone number to Chester County's Domestic Relations Office is 610-344-6215.
If a temporary order of support is entered pursuant to a PFA, petitioners must file for support with the domestic relations office immediately. It should be noted, however, the Court is more likely to deal with child custody and visitation issues, in conjunction with an Protection from Abuse action.
From time to time, petitioners ask for relief in conjunction with an abuse action to which they are not entitled under Pennsylvania law. Although such claims are often rejected by the Court, the Court may make exceptions and bring pressure to bear on a respondent to return, for example, clothes, personal belongings, a car or its keys, if needed by the plaintiff. Unlike requested relief that is not covered by the Pennsylvania Protection from Abuse Act, the Court is more likely to require a defendant to pay medical bills because such relief is as authorized by the Act. 23 Pa. C.S. § 6108(a)(5).
A PFA Order Was Issued in Chester County - What happens next?
Chester County Local Rules also require that an "informational cover sheet" (also called the “data sheet”) must be attached to all PFA orders filed with the police. All PFA orders must also include expiration dates. Protection from Abuse orders in Pennsylvania can last for a maximum of three (3) years. Most often, PFA orders are issued for the maximum period of time by law, but variations are also possible; for example, two year (2) PFA orders or one (1) year PFA orders.
How is a PFA issued on weekends or after business hours in Chester County?
Chester County Local Rules provide for how a Protection from Abuse order can be obtained on weekends and after business hours. Specifically, after Chester County Family Court closes for the day and during the weekends, if emergencies arise, actions may be commenced pursuant to the Pennsylvania Protection from Abuse Act by contacting a District Justice. C.C.R.C.P. 1901.2.A.(3) and 23 Pa. C.S. § 6110. The Chester County Police Radio Room, referenced above, should be contacted. A District Justice assigned to cover emergencies during off-hours will be contacted by the Police Radio Room Staff. Arrangements will be made by the District Justice for the petitioner to meet with him/her without delay. The available District Justice is not likely to be a District Justice from the district in which the petitioner lives. The available District Justice will be using his/her own courtroom, and the petitioner will have to go to the applicable District Court in Chester County.
This procedure is not used unless the petitioner also intends to request that the District Justice enter a temporary protection from abuse order. Such orders entered by District Justices are to be filed by the District Justices in the Chester County Prothonotary's Office on the next day that Chester County Family Court is in session. The Pennsylvania Protection from Abuse Act then requires Chester County Family Court to schedule hearings. 23 Pa. C.S. § 6110(b). It is important for petitioners and petitioners' attorneys to realize that the overnight PFA orders issued by District Justices do not always get to the West Chester Courthouse when they should, nor do they cross the Family Court Administrator's desk with the regularity with which they are issued. Because of these potential issues, additional proceedings are not scheduled unless the Family Court Administrator is contacted by the petitioner or the petitioner's attorney or someone authorized by the Pennsylvania Protection from Abuse Act to correspond with the Court. Accordingly, petitioners' attorneys should pursue such cases with the Chester County Family Court Administrator as soon as the West Chester Common Pleas Court resumes its next business day.
How is contempt of a PFA order handled in Chester County?
Chester County Local Rules outline how contempt of a PFA order is handled. C.C.R.C.P. 1901.5.A. The Local Rule contemplates that a person who violates a PFA order in Chester County will be arrested, brought before the applicable District Justice, arraigned, notified of his/her rights, and incarcerated or placed on bail. The forms related to indirect criminal contempt are set forth in the Rules. Chester County Police may verify the existence of the PFA order by phone or radio with the appropriate police department, the Chester County Police Radio Room, or Chester County Family Court, and upon verification, arrest a defendant for violation of a PFA order on information supplied by the victim or other witnesses. C.C.R.C.P. 1901.5.A.
According to the statute, there is no reason why a petitioner's attorney cannot file a complaint for contempt directly with the Chester County Family Court, or why a hearing date cannot be scheduled without an arrest being made. This is not the practice in Chester County however. If contempt is alleged, the matter is referred to a District Justice Office and an arrest warrant is issued. Moreover, a petitioner's attorney must obtain written permission from the Chester County District Attorney's Office to prosecute a contempt complaint. C.C.R.C.P. 1901.5.A.(i). It is critical that an attorney representing either the alleged victim or defendant in PFA contempt proceedings in Chester County understand the Local Rules. If a petition is filed alleging contempt of a Protection from Abuse order with respect to ancillary matters only, such as payment of medical bills, counsel fees, and the like, such a petition may be pursued by an attorney as a standard civil contempt without criminal implications.
The Assistant Family Court Administrator should be notified at least two (2) days prior to a PFA contempt hearing in Chester County to which an incarcerated respondent needs to be brought in from the Chester County Prison. Chester County Local Rules make it clear that violating a PFA is not taken lightly by Chester County Family Court.
If dismissed, can a PFA order be expunged in Chester County?
Chester County Local Rules provide that a Respondent may request expungement of a dismissed protection from abuse order, and may also request that weapons seized pursuant to the order be returned. C.C.R.C.P. 1901.7.A.
Whether seeking a Protection from Abuse order in Chester County, or defending against allegations of domestic violence or spousal abuse, the stakes can be high. For a PFA plaintiff who is subject to potential or actual harm at the hands of an abuser, a final PFA order is needed to help ensure the plaintiff's safety. The plaintiff cannot risk obtaining a temporary Protection from Abuse order only to have it dismissed because they failed to meet their burden at a final hearing at Chester County Family Court.
On the other end of the battlefield is the PFA defendant, and the issuance of a Protection from Abuse order against a person can have serious negative consequences, both short and long-term. A temporary PFA can lead to a final PFA, and a final PFA can lead to further consequences yet. The potential of a PFA order resulting in criminal charges in Chester County is real.
Ultimately, regardless of one's place in life, or the reasons why parties find themselves at Chester County Family Court, it is critical to take the proper steps to respond to and address a Protection from Abuse case, and an attorney familiar with Chester County PFA practice and procedure can help. If seeking or defending against a PFA in West Chester, contact attorney Joseph D. Lento today to learn how he can help.