Miller v. Winshall

• Decision Date: 29 February 1980
• Parties: Ernest B. MILLER v. Walter A. WINSHALL.
• Court: Appeals Court of Massachusetts

Page 1306

400 N.E.2d 1306

9 Mass.App.Ct. 312

Ernest B. MILLER v. Walter A. WINSHALL.

Appeals Court of Massachusetts, Essex.

Argued Dec. 13, 1979.

Decided Feb. 29, 1980.

Bernard J. Bonn, III, Boston, for defendant.

Garfield R. Morgan, Lynn, for plaintiff.

Before ARMSTRONG, DREBEN and KASS, JJ.

KASS, Justice.

Most of the issues which the defendant urges on appeal stem from the trial judge's correct refusal to order a report of the evidence transcribed at the hearing before a master in a nonjury action, or to order the master to file a fair summary of that evidence. In Michelson v. Aronson, 4 Mass.App. 182, 344 N.E.2d 423 (1976), and Bills v. Nunno, 4 Mass.App. 279, 346 N.E.2d 718 (1976), we discussed extensively the methods by which a litigant may secure judicial review of a master's findings, ¹ and there is no occasion to rehearse what we said in those decisions. After those cases were decided, however, the Superior Court adopted a change in Rule 49(7) (1976) which bears on the procedure to be followed by a party desiring to bring to a judge's attention evidence regarding the master's findings of fact in a nonjury case, and we take the occasion to review that process, as affected by the rule change.

The complaint alleged a written stock purchase option which entitled the defendant to purchase the plaintiff's stock in a corporation (of which the plaintiff was president) at the higher of alternative prices set forth in the option agreement. The variable was whether the plaintiff left the employ of the corporation voluntarily, in which case the price was $4,090.62, or involuntarily, in which case the price was $30,985.28. It was the defendant's position that the plaintiff quit; the plaintiff said he was fired. The master made a general finding that the plaintiff was discharged and, therefore, the defendant having exercised his option to buy the plaintiff's stock, the former was obliged to pay the higher price. Also resolved in the plaintiff's favor was whether the defendant was personally liable under the option agreement or had the status of an agent for other stockholders not joined as defendants in the action.

As is usual, the order of reference provided that the master was not to file with his report a transcript of the evidence and of the proceedings. To have required that the evidence be reported would have defeated a principal objective of referring a case to a master: delegation of the fact- finding function. Shelburne Shirt Co., Inc. v. Singer, 322 Mass. 262, 265, 76 N.E.2d 762 (1948). Peters v. Wallach, 366 Mass. 622, 626, 321 N.E.2d 806 (1975). Covich v. Chambers, --- Mass.App. ---, --- - --- ^a, 397 N.E.2d 1115 (1979); Dynamics Research Corp. v. Analytic Sciences Corp., --- Mass.App. ---, --- ^b, 400 N.E.2d 1274 (1980). Prior to the commencement of the trial before the master the defendant moved for an order "requiring a transcript at the Master's Hearing," which was allowed by a motion judge. This left the master in doubt whether the allowance of the motion constituted a modification of the original order of reference. To resolve that doubt the defendant, after commencement of the trial before the master, moved to modify the order of reference so as to require the master to file with his report a transcript of the evidence and of the proceedings. That motion was denied, and the denial was not only within the sound discretion of the judge, Shaw v. United Cape Cod Cranberry Co., 332 Mass. 675, 679-680, 127 N.E.2d 296 (1955), but also was consistent with the policy previously adverted to that the reporting of the evidence before a master is disfavored. It was open to the defendant to arrange to have a transcript prepared and the stenographer approved and sworn by the master. This was done and, indeed, was necessary in order to lay the foundation for a challenge that the evidence did not support the master's findings. Superior Court Rule 49(7) fourth paragraph (1976). See Anderson v. Blanch, 340 Mass. 43, 49, 162 N.E.2d 825 (1959). Cf. Bills v. Nunno, 4 Mass.App. 279, 282-283 n.3, 346 N.E.2d 718 (1976).

After the filing of the master's report, which was adverse to him, the defendant filed objections to the report and made a general request of the master to file a fair summary of the evidence. The master declined to append a summary of the evidence to his report and the defendant moved that the court order the master so to do. The motion was denied. There was no error on the part of the judge.

The steps which the applicable rules, Mass.R.Civ.P. 53, as amended, 367 Mass. 917 (1975), and Superior Court Rule 49(7) (1976), require to bring to the attention of the Superior Court judge whether a subsidiary or ultimate finding of the master is supported by the evidence are these:

1. Within ten days after being served with notice of the filing of the master's report a dissatisfied party must serve a written objection upon the other party, Mass.R.Civ.P. 53(e)(2), as amended, 367 Mass. 917 (1975), and upon the master, Superior Court Rule 49(7) (1976), clearly stating the grounds for each objection. The objections should also be filed in court, together with the motion described in the next step. This the defendant did, although, as will appear, the objections were too generalized to accomplish the purpose for which the defendant later sought to use them. "An objecting party has the duty of alerting the judge to those specific parts of the report he questions, because '(t)he report clearly (is) not objectionable as a whole . . ..' " COVICH V. CHAMBERS, --- MASS.APP. AT ---, 397 N.E.2D AT 1120^C.

2. Together with the objections, the dissatisfied party must file a motion with the court to strike the report in whole or in part (and if in part, specifically designating the parts quarreled with) or to recommit it. Bills v. Nunno, 4 Mass.App. at 282, 346 N.E.2d 718. This the defendant failed to do, and his challenge of the facts found in the report expired with that failure. The filing of objections is not a substitute for the motion to recommit or vice-versa. Both procedures must be followed. Kass v. Todd, 362 Mass. 169, 173, 284 N.E.2d 590 (1972). See generally Nolan, Civil Practice § 929 (1975).

3. To the extent that all or a part of the objections are that the evidence does not support the master's findings, the objecting party must request the master to summarize the pertinent evidence on which the master relied. This request must be specific and should preferably refer the master, by line and page reference, to those portions of the transcript (and to exhibits by number) which the objecting party wants examined, since Superior Court Rule 49(7) (1976) requires that the response of the master to a request for summary of the evidence be thus particularized. Reference to an exhibit should include a designation to the pertinent part. In the case at bar that was not done. Although the defendant's request for a fair summary of the evidence made an attempt at specificity by a reference "to each objection raised by Defendant Winshall in his Objections to Master's Report," only three of twenty-six refer to specific evidence; none of the remaining twenty-three objections made reference to the testimony of any person or to any particular exhibit which the defendant desired to be summarized. To say merely that a finding is contrary to the evidence is not sufficient. H. Piken & Co. v. Planet Constr. Corp., 3 Mass.App. 246, 248, 326 N.E.2d 725 (1975), and cases there cited. Had the defendant coupled his objections with a motion to recommit the master's report and a sufficiently specific request for a fair summary of the evidence, the master would have been duty bound to prepare such a summary. ² Had the master declined so to do on the grounds that the subsidiary findings in his report were "so far particularized and so closely follow the evidence which the master believed as in themselves to...