Christy & Tessier, P.A. v. Witte, Docket No. 84-367
| Decision Date | 01 July 1985 |
| Docket Number | Docket No. 84-367 |
| Citation | 126 N.H. 702,495 A.2d 1291 |
| Parties | CHRISTY & TESSIER, P.A. v. Bruce Paul WITTE. |
| Court | New Hampshire Supreme Court |
Christy & Tessier P.A., Manchester (Scott F. Innes, Manchester, on brief), by brief for plaintiff.
Bruce P. Witte, by brief and orally, pro se.
Stephen E. Merrill, Atty. Gen. (Loretta S. Platt, Asst. Atty. Gen., on brief), by brief for the State, as amicus curiae.
The defendant appeals a judgment of the Manchester District Court (Capistran, J.), awarding the plaintiff $250 plus costs for the services of one of its members, Thomas Tessier, Esq., as a special master in the defendant's divorce proceeding. We reverse.
The defendant was represented in the divorce action by Wilfred Desmarais, Esq. For reasons that are not a matter of record, Mr. Desmarais advised the defendant against appearing before the marital master who had been scheduled to hear his case and explained that the case could be tried to a special master appointed by agreement of the parties. See RSA 519:9. The district court found that Mr. Desmarais, with the defendant's approval, agreed with opposing counsel to select Mr. Tessier as special master and to pay one-half of the fee to compensate the master for his time and services. The special master heard the case and the superior court approved his recommendations. From the resulting decree the defendant brought an appeal, which this court summarily dismissed. Witte v. Witte, No. 83-184.
The defendant nonetheless refused to pay his share of the special master's bill, which led to the present action. The defendant admits that he accepted his counsel's advice to seek the services of a special master, and he further admits that his counsel informed him that he would have to pay the master specially. He nonetheless maintains that he was entitled to be heard by a judge, that he was entitled to be heard without paying a fee, and that he agreed in general terms to pay for a special master without understanding his rights as a litigant.
In finding that the defendant was liable, the district court applied Manchester Housing Authority v. Zyla, 118 N.H. 268, 385 A.2d 225 (1978), which holds that in the absence of evidence that an attorney acted beyond the scope of his authority, the attorney's settlement agreement binds the client. The district court found that Mr. Desmarais did have authority to agree to the appointment and payment of Mr. Tessier, and therefore returned a verdict for the plaintiff for the defendant's share of the cost of Mr. Tessier's services.
Although the defendant challenges the use of masters, we are satisfied that the defendant is entitled to prevail on the more limited issue of whether an agreement to pay for the cost of a special master should be treated differently from other agreements of counsel that are presumptively enforceable against a client under Zyla. We hold that they should be treated differently and that the present agreement to pay the special master's fee is unenforceable against the defendant.
We know from our own judicial experience that the great majority of cases committed to masters in the superior court are heard before regular masters who are compensated by the State at no extra expense to the parties. See Brooks v. Padula, 125 N.H. 668, 485 A.2d 1032 (1984); RSA 519:9 and :15 (Supp.1983); RSA 491:23. We likewise know that a frequent object of appointing special masters by agreement in particular cases is to accommodate the parties with special scheduling more preferable than the judicial system would ordinarily provide. To counsel in such cases it may seem...
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