Abramson v. Abramson

• Decision Date: 15 March 1990
• Docket Number: No. A14-89-00628-CV,A14-89-00628-CV
• Citation: 788 S.W.2d 860
• Parties: Sarah Louise Smith ABRAMSON, now Louise Sparr Smith, Appellant, v. A.D. ABRAMSON and Adaco Ltd., Inc., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 860

788 S.W.2d 860

Sarah Louise Smith ABRAMSON, now Louise Sparr Smith, Appellant, v. A.D. ABRAMSON and Adaco Ltd., Inc., Appellees.

No. A14-89-00628-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

March 15, 1990.

Rehearing Denied May 3, 1990.

Robert E. Newey, Mary M. Rawlins, Houston, for appellant.

Roger D. Townsend, Ben Taylor, Houston, for appellees.

Before J. CURTISS BROWN, C.J., and JUNELL and MURPHY, JJ.

OPINION

J. CURTISS BROWN, Chief Justice.

From reading the style of this appeal one could correctly deduce its nature as a family law case. It is plainly not a divorce case--given the involvement of Adaco, Ltd., Inc.--but that fact in no way takes away from the richness of the issue raised. The controlling question is whether a litigant may file a suit, try the case to a jury, halt the trial halfway through and agree to refer it to a master, present the case to the master, fire her lawyer halfway through and finish that proceeding pro se, lose badly, and then successfully contest the master's jurisdiction on appeal. We think not.

I.

Appellant Smith and appellee Abramson had been divorced for nearly four years when Smith filed this lawsuit, alleging fraud and various other theories arising out of their agreed settlement in the divorce. This suit went to trial before a jury. In the midst of trial the parties agreed to refer the case to a master. We say "the parties," but Smith insists she did not agree; rather, she maintains, whereas the attorneys may have agreed, she never signed the order appointing the master. In any event, that distinction appears not to have occurred to her until a day and a half into the proceeding before the master, when she sacked her lawyer. She asked the master to sign an order permitting withdrawal of her counsel, and he did so. She completed the case acting pro se. The master ultimately held against her and made findings to support an award of damages and legal fees to her ex-husband. Upon return of the proceedings to the trial court, the district judge fully adopted the master's findings.

Smith now appeals and contends that the trial court could not delegate its adjudicative duty. In support of this argument she cites various statutes authorizing use of masters, substitute judges, and alternate dispute resolution processes. These devices are said to be inapplicable here. Furthermore, she denies the validity of any agreement pursuant to TEX.R.CIV.P. 11. That rule, an immensely powerful one, is in the nature of a statute of frauds, providing for the enforceability of agreements between attorneys in a lawsuit. For their part, appellees make a policy argument based on rule 11 and the structure of our adversary system. They say the agreement at hand need not be pigeonholed into any narrow juridical category with appended statutory tag.

II.

In the words of a leading treatise, "The courts of Texas have not had occasion to develop an extensive body of law with respect to masters." 3 R. MCDONALD, TEXAS CIVIL PRACTICE § 10.17.1, at 28 (rev. 1983). To explain our holding we must therefore begin with the actual agreement and pertinent enactments. The order of reference begins as follows:

On the 31st day of January, 1989, the Court considered the parties' stipulation for appointment of Master in Chancery.

Plaintiff/Counterdefendant, SARAH LOUISE SMITH ABRAMSON (now known as LOUISE SPARR SMITH), appeared in person and through her attorney of record....

The Defendants/Counterplaintiffs, A.D. ABRAMSON and ADACO LTD., INC., appeared in person and through their attorneys of record....

By stipulation and agreement in open court, pursuant to Rule 11, Tex.Rules Civ.App., the parties, by and through their attorneys of record, agreed that Defendants' Plea in Bar be, and the same is, in all things, GRANTED. Such order granting said Defendants' Plea in Bar is binding upon the Master in Chancery.

....

The Court having considered the pleadings and heard the evidence and argument of counsel and the agreement and stipulation of the parties, and taking judicial notice of the proper proceedings in this matter and of the Court's file and discovery taken finds that good cause exists for the appointment of a Master in Chancery in this cause.

With that the order goes on to specify what powers the master may exercise, expressly granting the powers of a court of equity except as specifically denied in the order. ¹ The remainder of the order provides for each party to share in paying the master's expenses. Again, the order is signed by counsel for both sides, the judge, and the master, but not by Smith herself.

Statutory authorization for employment of masters in family law cases may be found in chapter 54 of the Texas Government Code. In subchapter A there appears a general framework for appointment of masters, applicable statewide. Other subchapters provide for modified procedures in certain named counties, but as there is no pertinent legislation specifically applicable to Harris County, we must fall back on subchapter A. That enactment spells out the types of proceedings a master may entertain, and among such examples is "a matter on which the parties agree." TEX.GOV'T CODE ANN. § 54.005(a)(10) (Vernon 1988).

As to the scope of a master's authority, the law requires issuance of an order of referral which may limit the power or duties of the master. Id. § 54.006. If the order fails to impose limitations, then the statute itself says what those powers shall be. It lists eleven specific powers followed by a grant of authority to do whatever is necessary and proper for the exercise of those named powers. Id. § 54.007. We need not quote that list verbatim, because it is similar to the order of referral excerpted above. In one of the final sections the legislature took care to note that subchapter A shall not govern a master appointed pursuant to TEX.R.CIV.P. 171; that type of master has whatever duties and powers as the order of appointment sets forth. See TEX.GOV'T CODE ANN. § 54.016. Rule 171, the general rule governing appointment of a master in civil cases, is not limited to family law matters, but it provides a similar option for adjudicative delegation by a trial judge. See generally 3 R. MCDONALD, TEXAS CIVIL PRACTICE §§ 10.15, 10.17.1-10.17.3 (rev. 1983) (discussing the use of masters and auditors).

There is a dispute over precisely what sort of master the trial judge appointed in this case. Appellant devotes considerable energy to controverting the viability of a rule 171 reference or a subchapter A appointment. She also distinguishes TEX.CIV.PRAC. & REM.CODE ANN. chapter 151, which allows an agreed referral to a "special judge." See generally Newton & Swenson, Adjudication by Privately Compensated Judges in Texas, 36 BAYLOR L.REV. 813 (1984) (on the use of substitute judges). For purposes of analyzing the court's power to do what it did, we may draw an analogy to Justice Jackson's concurring opinion in the Steel Seizure case. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952). There he laid out a three part scheme for examining presidential power. Though this approach makes for "a somewhat over-simplified grouping," id., it allows at least a methodical inquiry. Here it is necessary to analyze the issue of judicial authority to appoint a master, and we can follow a similar scheme having three parts. The approach we adopt recognizes three basic sources of judicial power: the constitution, statutes, and litigant consent.

III.

First, a court may act on the basis of pure judicial power, unaffected by statutory directive or consent of the litigants. This inherent power flows from article V of the Texas Constitution and includes whatever powers were possessed by courts of law or equity. TEX. CONST. art. V, § 1, cl. 1 ("The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law."). Someone who attacks an action taken on this basis need only show that it exceeded the judicial power. See TEX. CONST. art. II, § 1 (mandating separation of powers); see also Clear Lake City Water Auth. v. Salazar, 781 S.W.2d 347 (Tex.App.--Houston [14th Dist.] 1989, orig. proceeding) (finding limitations on judicial power to scrutinize a legislator's subjective thought processes).

Second, a court may act on the basis of inherent judicial power, modified by whatever statutory enactments the legislature has passed, but again without the consent of the litigants. Here Article V power furnishes the starting point, but the legislature may expand or contract the realm of judicial power by law, assuming it does so constitutionally. See TEX. CONST. art. V, § 1, cl. 2 ("The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto."). In this second category would be such actions as those authorized by TEX.R.CIV.P. 171 (masters), 172 (auditors); TEX.GOV'T CODE chapter 54 (family law masters); and TEX.CIV.PRAC. & REM.CODE ANN. chapter 151 (special judges). A challenge to this type of act must either establish noncompliance with the statute relied on by the judge, or show preemption of judicial power by virtue of the statutory scheme. For example, a successful attack on the appointment of a master or auditor under the rules of civil procedure must show the trial court abused its discretion. Mann v. Mann, 607 S.W.2d 243, 246 (Tex.1980); Texas Bank & Trust Co. v. Moore, 595 S.W.2d 502, 510-11 (Tex.1980); Robson v. Jones, 33 Tex. 324, 327-28 (1870).

Finally, a court may act pursuant to consent of the litigants. Here the judge exercises whatever decisional authority the parties confer; such power...