Michelson v. Aronson

• Decision Date: 19 March 1976
• Parties: Morris MICHELSON v. Robert A. ARONSON.
• Court: Appeals Court of Massachusetts

Page 423

344 N.E.2d 423

4 Mass.App.Ct. 182

Morris MICHELSON

v. Robert A. ARONSON.

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 12, 1975.

Decided March 19, 1976.

Henry P. Sorett, Cambridge, for defendant.

Edward Rabinovitz, Boston, for plaintiff.

Before ROSE, KEVILLE and ARMSTRONG, JJ.

ARMSTRONG, Justice.

In this bill in equity and counterclaim, each of the parties seeks an accounting of moneys allegedly due him by reason of certain transactions between them in their practice of law. The plaintiff also seeks the return of files removed by the defendant from the plaintiff's law offices, which the parties had shared. The case was referred to a master on July 27, 1973, who, on July 22, 1974, filed a report in which he found the defendant liable on a number of the plaintiff's claims and the plaintiff not liable on the counterclaim. The defendant filed numerous objections to the report on August 8, 1974, asserting in most instances that findings were unsupported by the evidence or were contrary to the evidence. On November 20, 1974, a judge of the Superior Court (a) overruled the defendant's objections to the master's report, (b) impliedly denied the defendant's motions to strike the report and to recommit the same (by not acting on those motions), (c) adopted the report (subject to a minor revision apparently not at issue), and (d) entered a judgment whereby the defendant's liability was established and his counterclaim dismissed. The defendant appealed from that judgment on December 18, 1974.

1. Before considering the merits of the appeal, we address ourselves to a procedural issue raised in the defendant's brief as to the content of the record before us. The issue arose through the following sequence of events. The order of reference to the master provided that he 'find the subsidiary facts on each issue tried and report them and his general findings based on such subsidiary findings to the court,' but that (with exceptions not here material) he 'not report any evidence . . ..' On January 28, 1975, more than a month after the defendant had filed his claim of appeal, he filed a motion in the Superior Court to amend the order of reference in such manner as to require the master to file with his report a transcript of the proceedings before him and the exhibits received by him in evidence. The motion was denied on February 7. On March 10, after the defendant's appeal had been entered, he filed a motion in this court to amend the record on appeal by the inclusion of a transcript of the proceedings before the master. The motion was denied on March 12 by a single justice without prejudice to the filing of a like motion in the Superior Court. Such a motion was filed in the Superior Court on March 20 and denied on April 29. On May 14, 1975, the defendant returned to this court with essentially the same motion, which was denied by the same single justice on May 27. The defendant contends that the denial of the motions alluded to was error and that, under the new Rules of Civil and Appellate Procedure which took effect July 1, 1974, he is entitled as matter of right to the inclusion of the transcript of the proceedings before the master in the record on appeal.

We are satisfied that the contention is without merit and have so expressed ourselves on two previous occasions. See Blakeley v. Pilgrim Packing Co., --- Mass. App. ---, ---, fn. 2, 340 N.E.2d 511 (1976);^a LYNCH V. PLANNING BD. OF GROTON, 4 MASS.APP. --- , 341 N.E.2D 925 (1976)^B. ¹ But in those cases (as well as the cases cited in fn. 1) we did so in summary fashion because we regarded the point as sufficiently self-evident to require no elaboration. We take this opportunity to express our view in greater detail in an effort to dispel the confusion which appears to have arisen as to the effect of the new rules on proceedings before masters in non-jury cases. Compare Foreign Auto Import, Inc. v. Renault Northeast, Inc., --- Mass. ---, --- ^c, 326 N.E.2d 888 (1975).

The defendant bases his contention on the first sentence of Mass.R.A.P. 8(a), 365 Mass. --- (1974): 'The original papers and exhibits on file, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases' (emphasis supplied). The Rules of Appellate Procedure were adopted along with the new Rules of Civil Procedure by the Supreme Judicial Court in a single order (365 Mass. --- (1974)), and both sets of rules must be read together as a comprehensive whole. Compare Giacobbe v First Coolidge Corp., --- Mass. ---, --- - --- ^d, 325 N.E.2d 922 (1975). Having been patterned on the rules which had governed those procedures in the Federal courts for many years (id. at --- ^e, 325 N.E.2d at ---), 'the adjudged construction theretofore given to the Federal rules is to be given to our rules, absent compelling reasons to the contrary or significant differences in content.' Rollins Environmental Serv. Inc. v. Superior Ct., --- Mass. ---, --- ^f, 330 N.E.2d 814, 818 (1975).

The pertinent provisions of the new Rules of Civil Procedure are found in Mass. R.Civ.P. 53(e), 365 Mass. --- (1974). Paragraph (1) thereof provides that a master 'shall file the report . . . and in the action (such as this one) to be tried without a jury, when directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence' (emphasis supplied). Paragraph (3) provides that '(i)n an action to be tried by a jury the master shall not be directed to report the evidence' (emphasis supplied). While Mass.R.Civ.P. 53(e)(1) and (3) are markedly similar to Fed.R.Civ.P. 53(e) (1) and (3) in most respects, Fed.R.Civ.P. 53(e)(1) differs from the corresponding Massachusetts rule in that a master appointed thereunder in a non-jury case is required to file with his report unless otherwise 'directed by the order of reference, . . . a transcript of the proceedings and of the evidence' (emphasis supplied). This deviation in the language of the Massachusetts rule from that of the Federal rule on which it was based reflects the traditional practice in our courts (unlike the practice of the Federal courts) that a master is rarely ordered to report the evidence heard by him. See Peters v. Wallach, --- Mass. ---, --- - --- ^g, 321 N.E.2d 806 (1975), and cases cited. Federal precedents under Fed.R.Civ.P. 53(e)(1) are therefore of questionable value in construing Mass.R.Civ.P. 53(e)(1).

More in point are the Federal cases decided under Fed.R.Civ.P. 53(e)(3), under which a master in a jury case may not be directed to report the evidence. Those cases hold that such evidence, even where embodied in a stenographic transcript, is not properly a part of the record in the trial court or the record on appeal, despite the inclusion of language in Fed.R.A.P. 10(a) as to the record on appeal which is identical to that relied upon by the defendant in Mass. R.A.P. 8(a). See Phillips Petroleum Co. v. Williams, 159 F.2d 1011, 1013 (5th Cir. 1947); In re A. Maggioli Co., 3 F.R.D. 83, 85 (D.Mass.1943); Moore's Federal Practice, par. 53.10, at 2982 (2d ed. 1975). We see no reason to reach a different result where the trial judge, though not forbidden to order a report of the evidence, declines in his discretion to do so.

Such discretion is plainly conferred by Mass.R.Civ.P. 53(e)(1). ² In that respect the rule made no change in the pre-existing law of this Commonwealth. See Shelburne Shirt Co. Inc. v. Singer, 322 Mass. 262, 265, 76 N.E.2d 762 (1948); Shaw v. United Cape Cod Cranberry Co., 332 Mass. 675, 679, 680, 127 N.E.2d 296 (1955), and cases cited. Compare Peters v. Wallach,--- Mass at --- - ---, ^h 321 N.E.2d 806. Implicit in that rule, moreover, is a continued recognition of the principle that absent an order that a master file a transcript with his report, such a transcript is not a part of the record on appeal. See Royal Tool & Gauge Corp. v. Clerk of Courts for County of Hampden, 326 Mass. 390, 391, 94 N.E.2d 781 (1950). To hold otherwise would largely defeat the purpose of referring a case to a master as expounded in such cases as Shelburne Shirt Co. Inc. v. Singer, 322 Mass. at 265, 76 N.E.2d 762, and PETERS V. WALLACH, 366 MASS. AT --- , 321 N.E.2D 806.^I Such a holding would also fly in the face of the more general proposition that an appellate court need not consider documents which were not made a part of the record on which the trial judge based his decision. See Milton v. Civil Serv. Comm.,--- Mass. ---, --- - --- ^j, 312 N.E.2d 188 (1974); United States ex rel. Kellogg v. McBee, 452 F.2d 134, 137 (7th Cir. 1971); United States ex rel. Mulvaney v. Rush, 487 F.2d 684, 687 (3d Cir. 1973); Borden, Inc. v. FTC, 495 F.2d 785, 787--788 (7th Cir. 1974).

In the present case the order of reference did not direct the master to report the evidence, but instead directed him not to do so. Thus, under Mass.R.Civ.P. 53(e)(1), the transcript was not authorized to be filed and was not before the trial judge. We therefore conclude that the transcript relied upon by the defendant is not a 'transcript of the proceedings' within the meaning of Mass.R.A.P. 8(a) and not properly a part of the record on appeal.

The defendant's contention that he is thereby deprived of any 'way to challenge even the most serious and grotesque errors' in the master's report is answered by the plain language of Rule 49, § 7, of the Superior Court (1974):

'In an action to be tried without a jury, when the master has submitted a draft of his report to counsel for all parties, he shall notify them of a time and place when and where they may attend and suggest such alterations as they may think proper. Unless the court expressly orders otherwise, in an action to be tried without a jury whenever any preliminary objection presented to the master raises a question of law which depends upon evidence not reported, the master, upon written...