Reporter’s Notes:

(1996): With the merger of the District Court rates into the Mass. R. Civ. P., the version of Mass. R. Civ. P. 53 as amended in 1982 is made applicable to the District Court. The specific language that had been included in now-repealed Rule 53(a) of the Dist./Mun. Cts. R. Civ. P. providing that a master may not be appointed in District Court proceedings without the assent of all parties has been retained in the merged rule for District Court civil proceedings.

(1982): Rule 53 (“Masters”) consolidates into one rule many of the provisions of the former Rule 53 and former Superior Court Rule 49. There are several new provisions, however, which appeared in neither of the former Rules. For example, Rule 53(b)(1) now explicitly provides that a master must be a “member in good standing of the bar.” Rule 53(b)(5) requires the master to “make full written disclosure” of “circumstances known to the master, which may give the appearance of partiality.”

The most significant new features of Rule 53 are found in Rule 53(g) (“Master’s Report”), Rule 53(h) (“Master’s Report in Non-Jury Cases”), and Rule 53(i) (“Master’s Report in Jury Cases”). These new provisions describe what a Master’s Report must contain, the timing of each step, the role of objections, and the limitations on review by the trial court. Under new Rule 53(g)(1), the master in a jury case must make findings on damages, even if the master has determined that there is no liability; these damage findings are admissible as prima facie evidence at the jury trial (Rule 53(i)(1) ). Rule 53(g)(1) now expressly authorizes, but does not require, requests for findings of fact. New Rule 53(i)(1) abolishes “facts final” references in jury eases which were previously countenanced in the form for orders of reference to a master in jury actions, which was a part of Superior Court Rule 49. Such “facts final” references were eliminated as probably inconsistent with a jury trial. The new Rule substitutes “objections to report” (Rule 53(h)(2) and (i)(2) ) for the multiple steps of filing objections in the nature of exceptions and then filing separate motions, such as those to strike or recommit. In jury cases, a party objecting to any aspect of the report must within 45 days after service of the objections “move the court to act upon” them, unless the court allows further time (Rule 53(i)(2) ).

New Rules 53(h)(3) and 53(i)(3) now condition review of “a question of law dependent upon evidence before the master” on the existence of “a transcript of so much of the proceedings before the master as is necessary to dispose of the objections adequately.” A master is no longer required to prepare a summary of the evidence, as under previous Superior Court Rules 49(7) and (8). The new process is comparable to Massachusetts Rule of Appellate Procedure 8(b)(1). In new Rules 53(h)(4) and 53(i)(4) the reviewing court is given the power, along with specifically enumerated powers, to “take any other action that justice requires” with respect to the report. The reviewing court can, when appropriate, reverse a master’s ultimate finding, and enter a finding for the opposing party (compare old Rule 53(e)(2) and old Superior Court Rule 49(8) ).

Turning now to each new rule consecutively, Rule 53(a) defines “master” and “stenographer.” “Master” means “any person … who is appointed by the court to hear evidence in connection with any action and report facts.” As in previous Rule 53, the distinction between “auditor” and “master” is eliminated.

Rule 53(b) deals with “Appointment.” Rule 53(b)(1) requires that masters be members in good standing of the bar, since masters deal with legal issues and render legal conclusions. A court, under this Rule, may appoint a master in any case except those classes of cases, “if any,” designated by the Administrative Justice “not to be tried to a master.” The Supreme Judicial Court has frequently commented on the potential delay and confusion resulting from references to masters, and cautioned that the judicial discretion to refer cases “should be exercised most discriminately and reasonably sparingly.” O’Brien v. Dwight, 363 Mass. 256, 280 (1973). Also see, for examples, Peter v. Wallach, 366 Mass. 622, 626 (1975), and Jet Spray Cooler, Inc. v. Crampton, 377 Mass. 159, 163 (1979). It is important, therefore, that the Administrative Justice has the power to designate entire classes of cases “not to be tried to a master.”

Rule 53(b)(2), “Selection by Agreement,” requires the court to “inquire whether the parties can agree upon a master,” prior to appointment. Unless the court “is of the opinion that the proposed master is unqualified, or for other good reason should not be appointed,” the court “shall appoint the person agreed upon.” This is similar to previous Superior Court Rule 49(1)(b).

Rules 53(b)(2) through 53(b)(5) dictate how a master is to be appointed when the parties cannot agree; how and when a party may object to “the appointment of a master selected by the Court;” and the responsibility of a newly appointed master to give notice “if he is unable or unwilling to serve.” Rule 53(b)(5) also requires a person to decline appointment as master “in any case in which he cannot be impartial,” and to make full written disclosure “if there are circumstances known to the master, which may give the appearance of partiality.”

Rule 53(c) contains “Compensation” provisions, and tracks much of the previous Rule 53(a) compensation language, except, in keeping with the results of Court Reorganization, references to the “county” and “rule of the justices of the court” have been replaced by “the Commonwealth” and “rule of each department.”

Rules 53(d) (“Order of Reference”) and 53(e) (“Powers”) contain much of what was previously found in Rule 53(c). Provisions with respect to evidence and objections, which were previously covered in Rule 53(c), are now governed by a new Rule 53(f)(2).

Rule 53(f), entitled “Proceedings,” has seven sections. Rule 53(f)(1), “Hearings,” provides for the timing and location of hearings. Rule 53(f)(2), “Evidence,” provides that Rules 43(a), (b), (d) and (g), which also deal with evidence issues, “will govern hearings before masters.” Rule 53(f)(R) covers “Interpreters,” and Rule 58(f)(4), “Stenographers.” Rule 53(f)(5), “Statement of Accounts,” is identical to previous Rule 53(d)(3). Rule 53(f)(6), “Failure to Appear,” provides more specific options than previous Rule 53(d)(1) about the consequences of a party’s failure to appear. Under the new rule, if a party fails to appear, the master may proceed ex parte, or adjourn the proceedings, or apply to the court for the imposition of sanctions. Rule 53(f)(7), “Witnesses,” permits “subpoenas as provided in Rule 45,” and also provides for the possible imposition of a punishment by the court “as for a contempt” in the event a witness fails to appear “without adequate excuse.” This “Witnesses” section, unlike previous Rule 53(d)(2), no longer includes “consequences, penalties, and remedies provided in Rules 37 and 45 ” for failure to honor a subpoena.

Rule 53(g), Rule 53(h), and Rule 53(i) contain the provisions relating to Master’s Reports. Rule 53(g) is a general rule, with separate sections on “Contents” and “Filing.” Rule 53(h) provides specific rules with respect to a “Master’s Report in Non-Jury Cases,” and Rule 53(i) does the same for a “Master’s Report in Jury Cases.” Rule 58(g), (h), and (i), taken together, cover questions previously dealt with in Rule 53(e) and Superior Court Rule 49(7) and (8). Rule 53(g)(1) requires the master’s report to “contain the master’s general finding upon each issue that is within the order of reference” and to “include and clearly identify the subsidiary findings upon which each general finding is based.” In jury cases the master must make “findings on damages, separately stated,” but “in a non-jury case the master need not make findings on damages if he determines that there is no liability.” Parties may file requests for findings “at the conclusion of the evidence.”

Rule 53(g)(2) obligates the master to submit a draft report “at least 20 days before filing his report.” Previous Rule 53(e)(5), on draft reports, did not have this specific time period. The master’s report must be filed “within 60 days after the close of the evidence,” unless the court alters the time. This changes the 45 day period under previous Rule 53(e)(1). Counsel may submit suggested amendments in writing to the draft report, and the “master may, in his discretion, allow a hearing on any suggested amendments.”

Rule 53(h), “Master’s Report in Non-Jury Cases,” and Rule 53(i), “Master’s Report in Jury Cases,” are each divided up into four sections: “(1) Status of Report,” “(2) Objections to Report .. .. (3) Limitations of Review,” and “(4) Action on Report.” Rule 53(i) abolishes “facts final” references.

In a non-jury case, “the court shall accept the master’s subsidiary findings of fact unless they are clearly erroneous, mutually inconsistent, unwarranted by the evidence before the master as a matter of law or are otherwise tainted by error of law” (Rule 53(h)(1) ). In a jury case, “the master’s findings upon all the issues submitted to him are admissible as prima facie evidence of the matters found . . ., subject, however, to the rulings of the court upon any objections properly preserved . . . ” (Rule 53(i)(1) ).

Challenges to the master’s report in a non-jury or jury action are made by the filing of objections “clearly stating the grounds for each objection and the relief sought,” (Rule 53(h)(2) and Rule 53(i)(2) ). Thereafter, in a non-jury case, either party may at any time move the court to act upon the report and the objections (Rule 53(h)(2) ). In a jury case, within forty-five days after service of the objections, unless the court allows further time, the objecting party “shall move the court to act upon the objections” (Rule 53(i)(2) ). Unlike previous practice, counsel no longer file objections in the nature of exceptions, nor file separate motions to strike and to recommit.

In a non-jury or jury case the court will review a question of law dependent upon evidence before the master if the evidence was recorded by a stenographer and if “a transcript of so much of the proceedings before the master as is necessary to dispose of the objections adequately is served, together with the objections, upon every other party” (Rule 53(h)(3) and Rule 53(i)(3) ). The procedure for designating portions of the transcript for submission to the court is similar to that contained in Massachusetts Rule of Appellate Procedure 8(b). Under new Rule 53, counsel no longer request the master to summarize relevant evidence, as was the case under Superior Court Rule 49(7) and (8). The court will have transcripts to review rather than masters’ summaries.

Rule 53(h)(4) and Rule 53(i)(4) describe the action which a court may take on the master’s report in non-jury and jury cases respectively. In both jury and non-jury cases, the court may strike all or part of the report, modify it, recommit it with instructions, or take other action that justice requires. In non-jury cases the court may also “adopt the report.”

(1975): As originally promulgated, Rule 53(e)(1) required the master to file his report and the original exhibits within 30 days after the hearing had been “closed”. This presented an ambiguity, because a hearing in which the evidence has been completed, but the parties had not yet filed briefs, could fairly be said not yet to have been “closed.” Accordingly, the rule has been amended to indicate that the master’s filing deadline dates from the close of the evidence, i.e., the final resting of the parties. To allow for the filing of briefs, if desired, the master’s time to report has been enlarged from 30 days to 45 days.

(1973): Rule 53, taken largely from Federal Rule 53, covers all quasi-judicial court-appointed fact-finders, including masters, referees, auditors, examiners, commissioners, and assessors.

Under prior Massachusetts practice a master could sit only in equity; an auditor could sit only in actions at law. Under the Rules, the distinction between an auditor and a master disappear. See Rule 2. The change in nomenclature should make little difference.

Under Rule 53(a) the amount and source of a master’s compensation will continue to be court-regulated, either ad hoc, or by a standing order.

If a party fails to pay the master, after the court directs him to, the master has only those rights of an ordinary judgment creditor. He may not withhold his report; the rule does not recognize a master’s lien.

Reference may be made when the parties agree to it. Rule 53(b). This provision, which is not a part of Federal Rule 53, honors existing Massachusetts practice.

Under Rule 53(c), as under prior practice, Spiegel v. Beacon Participations, 297 Mass. 398, 406 (1937), the order of reference may impose binding limitations upon the master. Subject to these restrictions, he can regulate all proceedings in hearings before him, including requiring the production before him of evidence, ruling on the admissibility of evidence, putting witnesses and/or parties on oath and examining them. Rule 53(c) requires the master, upon request, to make a record of the evidence offered and excluded. This follows prior law. Whenever an auditor made a ruling as to the admissibility of evidence, and objection was taken thereto, the auditor if requested so to do, had to make a statement of such ruling in his report. G.L. c. 221, § 56.

Rule 53(d) requires the master, unless otherwise instructed by the order of reference, to set a time and place for the first meeting of the parties or their attorneys; this first meeting must be held within 20 days after the date of the order of reference. Rule 53(d), like prior Massachusetts practice, stresses the importance of the master’s diligence. Rule 53(d)(1) permits either party, after notice to the parties and master, to apply to the court for an order to speed the proceedings. If a party fails to appear at the hearing, the master may proceed ex parte or, in his discretion, adjourn the proceedings to a future day giving notice to the absent party of the adjournment. Under prior law judgment could be entered for the adverse party upon the recommendation of the auditor, G.L. c. 221, § 58; or he could proceed ex parte, Super. Ct. Rule 87. A master, faced with a similar situation, could proceed ex parte, Id. Under S.J.C. Rule 2:32, Super.Ct. Rule 87 and Prob. Ct. Rule 21, not only could the officer proceed ex parte in the absence of a party, but he had to do so “on motion of the party appearing.” Rule 53 thus ameliorates the rigor of prior Massachusetts practice. It gives the master a discretionary choice. He may proceed ex parte or adjourn the proceedings to a future day.

Under Rule 53(d)(2), the parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas. An unexcused failure to appear is punishable as contempt of court, thus subjecting the absent witness to the penalties and remedies in Rules 37 and 45. This does not significantly alter prior practice. Note that the court, not the master, finds the contempt and imposes appropriate sanctions.

Under Rule 53(d)(3) the form of accounts is a matter for the master’s discretion. This appears consistent with prior Massachusetts practice, which set no form for the auditor’s or master’s report. See Zuckernik v. Jordan Marsh Co., 290 Mass. 151 (1935).

Rule 53(e) requires that the master report upon the matters submitted to him by the order of reference and also report any findings of fact and conclusions of law he was required to make.

Massachusetts courts have permitted an auditor at his discretion to set forth the subsidiary facts which he found, as well as the inferences and conclusions which he drew, Fair v. Manhattan Ins. Co., 112 Mass. 320, 329 (1893). Masters had to make and report all findings of facts material to issues raised by the pleadings including not only the master’s conclusions but enough subsidiary findings to enable the court to follow the steps taken by the master. Smith v. Lloyd, 224 Mass. 173, 174 (1961). Rule 53(e)(1) preserves this practice.

Under Rule 53, as before, the master files his report with the clerk of court, who notifies the parties forthwith. Super. Ct. Rule 87 required that the master’s report be filed within 30 days after the hearing had been closed. This provision has been incorporated into Rule 53(e)(1).

Rule 53(e)(2) has been amended to retain the Superior Court requirement, Super. Ct. Rule 90, that objections to a master’s report clearly state the grounds. It applies the “clearly erroneous” standard to a master’s findings in a nonjury case. This follows prior Massachusetts practice, where the master’s findings of basic fact would stand “unless plainly wrong, mutually inconsistent or contradictory or vitiated in view of controlling principles of law.” Sturtevant v. Ford, 280 Mass. 303, 308 (1932).

Under Rule 53(e)(2), parties have a 10-day period in which to object to any findings of the master in an action seeking equitable relief or any action in which the master’s findings are to be final. The court, as in existing Massachusetts practice, may accept, reject or recommit a master’s report. C.A. Briggs Co. v. National Wafer Co., 215 Mass. 100, 108 (1913).

Rule 53(e)(3) closely follows Federal Rule 53(e)(3). The language has been modified to make clear that a masters report will have “prima facie” effect if introduced at the trial. G.L. c. 221, § 56; Cook v. Farm Service Stores, Inc., 301 Mass. 564 (1938).

Rule 53(e)(4) precludes further litigation of facts in cases where the parties have stipulated that the master’s findings of fact will be final.

Under Rule 53(e)(5), a master must submit a draft of his report to counsel for all parties for the purpose of receiving their suggestions. This embodies existing Massachusetts practice, Super. Ct. Rules 87, 88, 89, 90.