WHAT TO DO AFTER THE SPECIAL MASTER REPORTS

December 5, 2012 § Leave a comment

It is my practice to appoint guardians ad litem to serve as special masters pursuant to MRCP 53. That rule vests the special master with broad powers, including subpoena powers and auhority to hold evidentiary hearings. The ultimate function of the special master is to produce a report, which is addressed in MRCP 53(g), which reads as follows:

(g) Report.

(1) Contents and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report. He shall file the report with the clerk of the court and, unless otherwise directed by the order of reference, shall file with it a transcript of the proceeding and of the evidence in the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.

(2) Acceptance and Objections. The court shall accept the master’s findings of fact unless manifestly wrong. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as provided by Rule 6(d). The court after hearing may adopt the report or modify it or may reject it in whole or in any part or may receive further evidence or may recommit it with instructions.

(3) Stipulation as to Findings. The effect of a master’s report is the same regardless of whether the parties have consented to the reference; however, when the parties stipulate that a master’s finding of fact shall be final, only questions of law arising upon the report shall thereafter be considered.

(4) Draft Report. Before filing his report a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.

That provision for acceptance and objections is what tripped up the appellants in the COA case of Gettis and Montgomery v. Frison, decided October 30, 2012.

To make a long and sinuous train of events short, Gettis and Montgomery filed an objection to the special master’s report, but neither noticed it for hearing nor apparently served a copy of their objection on the judge. The chancellor entered an order adopting the report, and the objectors appealed.

The COA cited Miles v. Miles, 949 So.2d 774, 778-9 (Miss.App. 2006) for the proposition that the appellants can not complain that the were denied the right to a hearing when they did not comply with the procedural requirements of 53(g), which conditions the right to a hearing on the filing of an objection and motion and giving notice of hearing per MRCP 6(d).

If you are involved in a case where a special master has been appointed, be sure you read and comply with Rule 53 to the letter. The filing of an objection and a hearing thereon may be your only opportunity to get the report modified or tweaked for your client’s benefit, because 53(g)(2) specifically dictates that “The court shall accept the master’s findings of fact unless manifestly wrong.”

As I have said here many times: Read the rule. That hazy recollection from the last time you glanced at a part of it twelve years ago might not serve you well at all.

And a side note: In the Gettis and Montgomery case, the COA decision by Judge Irving points out several times that the appellants never filed a post-trial motionasking the chancellor to take another look at how the case had played out. The insinuation is that the judge may have relented and given them a chance to make a record, but we will never know that because they did not file a motion for rehearing. As we have discussed here before, you are not required to file a post-trial motion in chancery as a prerequisite to an appeal, but it may just give you that one more bite at the apple that you need.

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