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Rule 53 – Masters

May 14, 2021 | Civil Procedure, Vermont

(a)Appointment and Compensation. A superior court in which an action is pending may appoint one or more masters therein, not exceeding three in number. As used in these rules “master” includes an auditor, referee, or commissioner, and the singular includes the plural. The compensation to be allowed to a master shall be fixed by the court, and such compensation and necessary expenses incurred by a master as allowed by the court shall be paid by the state as provided by law.
(b)Reference.

(1)Reference by Agreement. The court may appoint a master in all cases where the parties agree that the case may be so tried.
(2)Reference Without Agreement. In absence of agreement of the parties, a reference shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when an investigation of accounts or an examination of vouchers is required; in an action to be tried without a jury, save in matters of account, a reference shall be made only upon a showing that some exceptional condition requires it or when provided by law.
(c)Powers. The order of reference to the master may specify or limit the master’s powers and may direct the master to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master’s report. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in Rule 43(c) for a court sitting without a jury.
(d)Proceedings.

(1)Meetings. When a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the master shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within 21 days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the master to proceed with all reasonable diligence. Either party, on notice to the parties and master, may apply to the court for an order requiring the master to speed the proceedings and to make a report. If a party fails to appear at the time and place appointed, the master may proceed ex parte or, in the master’s discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.
(2)Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in Rule 45. If without adequate excuse a witness fails to appear or give evidence, the witness may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in Rules 37 and 45.
(3)Statement of Accounts. When matters of accounting are in issue before the master, the master may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as the master directs.
(e)Report.

(1)Contents and Filing. The master shall prepare a report upon the matters submitted to the master by the order of reference and, if required to make findings of fact and conclusions of law, the master shall set them forth in the report. In cases where the reference is by agreement of the parties, the master shall file with the clerk of the court the report, together with the original exhibits and together with any transcript which, at the election and expense of one or more of the parties, may be made of the proceedings and of the evidence before the master. In cases where the reference is without agreement and where the action is to be tried without a jury, when the order of reference so provides, the master shall file with the report and the original exhibits a transcript of the proceedings and of the evidence and the cost of such transcript shall be included in the necessary expenses incurred by the master as provided in Rule 53(a). The clerk shall forthwith mail to all parties notice of the filing.
(2)In Non-Jury Actions. (i) In an action where there has been a reference by agreement, the master’s conclusions of law and findings of fact shall be conclusive unless the order of reference reserves to the parties the right to object to acceptance of the master’s report. If such right is so reserved, the court shall accept the master’s findings of fact unless clearly erroneous. (ii) In any other non-jury action the court shall accept the master’s findings of fact unless clearly erroneous. (iii) Except where the reference is by agreement without reservation of the right to object, any party may, within 21 days after being served with notice of the filing of the report, 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 prescribed in Rule 6(d). Except as otherwise provided in this paragraph (2), the court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.
(3)In Jury Actions. In an action to be tried by a jury the master shall not be directed to report the evidence. The master’s findings upon the issues submitted to the master are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report.
(4)Draft Report. Before filing the master’s report a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.

Vt. R. Civ. P. 53

Amended March 6, 2002, eff. July 1, 2002; amended Sept. 20, 2017, eff. Jan. 1, 2018.

Reporter’s Notes2018 amendment

Rule 53(d) is amended to extend its 20-day time period to 21 days consistent with the simultaneous “day is a day” amendment of V.R.C.P. 6. Rule 53(e) is amended for consistency with F.R.C.P. 53(f)(2).