The Special Commissioner in Partition

June 27, 2016 § 2 Comments

I don’t usually comment on cases in my court or originating here, but a recent decision of the COA merits your attention, so I am making an exception.

In this case, Mathis filed suit seeking partition of 60 acres of real property. Mathis claimed an undivided one-fifth interest, and averred that the property was not divisible in kind. The defendants, Moss family members, answered that the property was divisible in kind.

Pursuant to MCA 11-21-15, a commissioner was appointed to serve as a special master per MRCP 53(a). The special master filed his report in September, 2013, and requested a conference with the court, but no conference was held. Neither party filed any objection to the special master’s report.

There was a hiatus of nearly a year during which there was no activity in the case. In August, 2014, Mathis filed a motion to divide the property in kind. A hearing on the motion, with which the special commissioner agreed, was scheduled and rescheduled. On September 25, 2014, the parties signed an agreed order setting the hearing for November 12, 2014.

The special master filed an amended report in October, 2014, agreeing for the most part with the Mathis proposal, and setting his report for hearing on November 12, 2014. No objection to this amended report was filed by either party.

On November 12, 2014, the agreed date for hearing, counsel for the Moss family did not attend. No member of the Moss family was present. The special master and counsel for Mathis were present, and the judge entered a judgment accepting and adopting the special master’s report. Where there was a signature line on the judgment for the Moss’s attorney, the judge wrote, “DID NOT APPEAR.”

The Mosses appealed, and on May 24, 2016, in the case of Moss v. Mathis, the COA affirmed. Here is what Judge Barnes wrote for the court:

¶8. The Mosses raise only one issue: whether the chancellor committed manifest error in accepting the special master’s amended report without a hearing. The Mosses claim they had objections to the report, which were never allowed to be heard; therefore, their due process rights were violated. However, this argument is without merit. The Mosses never filed an objection to either of the special master’s reports; therefore, they were not entitled to a hearing. Regardless, several hearings on both reports were noticed to the parties, and at the final hearing, the Mosses’ counsel did not appear. Finally, the amended report was consistent with the requests the parties made in their pleadings.

¶9. Property-partition cases are generally governed by Mississippi Code Annotated sections 11-21-1 through -45 (Rev. 2004). Partition in kind is the preferred method of partitioning property in Mississippi. Fuller [v. Chimento], 824 So. 2d at 601 (¶8) (citations omitted). The propriety of partitioning property by sale or in kind is determined on a case-by-case basis. Id. at (¶9).

¶10. Regarding hearings on partition cases, a chancellor is not required to conduct a hearing on objections to the special commissioners’ [Fn1] report when the landowners do not submit their objections in the form of a motion and do not notice or request a hearing. Miles v. Miles, 949 So. 2d 774, 779 (¶18) (Miss. Ct. App. 2006). Alternatively, Mississippi Rule of Civil Procedure 53(g)(2) suggests that a chancellor must conduct a hearing when a party does submit objections in the form of a motion and complies with the rules of notice for hearings. Id. For the procedure on the report’s acceptance and objections, Rule 53(g)(2) states:

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.

The Miles court clarified that it does “not suggest a party to a partition action has no right to a hearing,” but rather, “a party has a right to a hearing on their objections to a special commissioners’ report where the party that seeks the hearing follows the requirements set forth in Rules 53(g)(2)” and other related procedural rules. Miles, 949 So. 2d at 780 (¶21).

[Fn1] In Miles, “special commissioners” were appointed, which is the term the Mississippi partition statutes use, but here, the pleadings and the chancellor refer to a “special master.” Mississippi Rule of Civil Procedure 53(a) states the word “master” of the court includes “special commissioner.”

¶11. The Mosses’ argument follows the plaintiff/appellants’ argument in Miles very closely, even though this Court rejected that argument and affirmed the chancellor’s partition order, finding no violation of the appellants’ due-process rights because of the chancellor’s failure to conduct a hearing. See id. Additionally, Miles is distinguishable from this case because in Miles the chancellor did not have a hearing at all, as the plaintiffs “did not follow the necessary procedural requirements to even place the chancellor on notice that they desired a hearing.” Id. Here, several hearings were noticed, and one was held, but the Mosses never objected to the report.

¶12. The Mosses concede that Mississippi partition statutes – specifically section 11-21-25 – do not require a chancellor to conduct a hearing on the merits.[Fn 2] See Miles, 949 So. 2d at 779 (¶17). Like the appellants in Miles, the Mosses cite to Rule 53(g)(2) as authority for their argument, and that they needed a hearing in order to object to the report. However, that is not the proper procedure. As Miles explains, the chancellor is to conduct a hearing once a party submits his objections in the form of a motion, or notices a hearing. See Miles, 949 So.2d at 779 (¶18). Here, the Mosses did not submit objections at all.

[Fn 2] Section 11-21-25, on the report by the special commissioners, reads in pertinent part:

The special commissioners shall make to the court . . . a full report, in writing, of their proceedings, which, on exceptions filed at any time before its confirmation, for good cause shown may be set aside by the court . . . or the same special commissioners may be directed to make a new partition; or the partition may be modified by the court in any particular, and be confirmed as thus modified.

¶13. While the Mosses maintain that they object to the report, their specific objections remain unknown. The amended report was consistent with the parties’ requests in their final pleadings. Initially, the Mathises sued for partition by sale, and the Mosses filed a counter complaint for partition in kind, although they did not state how they wanted the property partitioned. Over one year later, the Mathises changed their request from a partition by sale to a partition in kind. They filed a motion asking that the property be divided so that they would receive twelve of the sixty acres on the east side of the tract adjoining other property they own. The special master’s amended report stated that counsel for the Mosses agreed that the Mathises owned an undivided one-fifth interest in the property and agreed that the Mathises were entitled to have their interest partitioned in kind, but not by sale. Accordingly, the Mathises were conveyed the twelve-acre parcel they requested.

¶14. Further, from the record, the Mosses had opportunities to be heard or object to both the initial and amended reports, as several hearings were noticed, [Fn 3] but they did not do so until this appeal. Even now, they do not state their specific objection. On November 12, 2014, the special master and counsel for the Mathises were present, but counsel for the Mosses was not. On the final judgment, a handwritten notation made by the court on the signature line for the Mosses’ counsel indicated counsel “DID NOT APPEAR.” The Mosses’ counsel had an opportunity to appear and object but did not. Accordingly, we cannot find any violation of the Mosses’ due-process rights, or manifest error in the chancellor’s decision.

[Fn 3] Hearings were noticed by either the special master or counsel for the Mathises on September 26, 2013, August 14, 2014, September 25, 2014, and November 12, 2014.

I have a few thoughts about this case, but this post has gone on long enough. I’ll share my comments tomorrow.



§ 2 Responses to The Special Commissioner in Partition

  • Bob Gillen says:

    I am trying to locate a report of the commissioners appointed to make the partition in a 1916 or 1917 case Gillen v. Stuckey referred to in an appeal from the Chancery Court, Yazoo County Mississippi with Allen Thompson, Chancellor presiding, cited as #18186, 73 So. 626. Can anyone advise as to where/whom I might contact to further my research? I am looking for history of this land from a family perspective as my father was born there and my grandfather assisted in managing the property for a year, before returning to Sasketchewan in Canada in1915. Thx.

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