Some Thoughts About Partition Procedures
June 28, 2016 § 2 Comments
Following up with some thoughts on Moss v. Mathis, about which I posted yesterday:
- I was glad to see the COA accept the role of the statutory commissioner to serve as a special master pursuant to MRCP 53. The reason is that the rule sets out a specific procedure that is easy to understand and follow, in contrast to the statute, which does not prescribe any precise procedures. R53(a) specifically states that the term “Master” includes, ” … a referee, an auditor, an examiner, a commissioner, and a special commissioner.”
- If you are involved in any case where the court has appointed a master under R 53, the first thing you should do is drop everything and read the rule. I try to incorporate language in my order that spells out the procedure, but I am not required to do that, and your chancellor may not include a roadmap for you.
- Under R53, the master is required to arrange a meeting with the parties and to proceed to making a report as expeditiously as possible. Once the report is filed with the clerk, the court “shall accept the master’s findings of fact unless manifestly wrong.” The parties have ten days to file written objections. Action on the report or objections is initiated by motion and R5(b) notice. The court may adopt the report, or modify it, or may reject it in whole or in part or may take further evidence, or recommit it to the master with further instructions.
- As Moss v. Mathis illustrates, unless you file something in the form of an objection to the master’s report, you will likely be stuck with it, even if it is directly contrary to what your client wants out of the case. Don’t assume because the report is contrary to your client’s position that the court will assume you are objecting. The rule is clear that a written objection is required. Also if you merely file an objection and do not notice it for hearing, you are deemed to have waived the hearing and even your objection. See, Gettis v. Frison, 99 So.3d 1186 (Miss. App. 2012).
- So what kind of objection is required? Is it okay to file something like, “Come now the plaintiffs and object to the report of the special master”? Before you do that, notice the language in Moss v. Mathis at ¶13 about the Mosses’ failure to file any objection to either of the special master’s reports: “While the Mosses maintain that they object to the report, their specific objections remain unknown.” In Miles v. Miles, 949 So.2d 774 (Miss. App. 2006), the court stated that the requirements of R6 (notice and time for notice), and R7 must be met. R7 states that “An application for an order shall be by motion which … shall be made in writing, shall state the particular grounds therefor, and shall set forth the relief or order sought. That seems to me to say that specific grounds for objection need to pled in your motion objecting — at least specific enough to enable the court, special master, and opposing parties know what it is you are complaining about.
- As litigation grows more complex, you can expect to encounter R53 with increasing frequency in chancery.
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You referred to R6 Notice. Did you mean R5?
Yes. I will correct that; thanks for pointing it out.