OAKLAND CTY. PROSECUTOR v. Beckwith

• Citation: 619 N.W.2d 172,242 Mich. App. 579
• Decision Date: 16 November 2000
• Docket Number: Docket No. 213447.
• Parties: OAKLAND COUNTY PROSECUTOR, Plaintiff-Appellant, v. Stuart BECKWITH, Stanley Bershad, as assignee for the benefit of creditors of Beckwith-Evans Co., Beckwith-Evans Co., Interior Management Group, Inc., Floorscapes, d/b/a Prosource Wholesale Floor Covering, Defendants, and Geoffrey L. Silverman, Appellee.
• Court: Court of Appeal of Michigan — District of US

619 N.W.2d 172

242 Mich. App. 579

OAKLAND COUNTY PROSECUTOR, Plaintiff-Appellant, v. Stuart BECKWITH, Stanley Bershad, as assignee for the benefit of creditors of Beckwith-Evans Co., Beckwith-Evans Co., Interior Management Group, Inc., Floorscapes, d/b/a Prosource Wholesale Floor Covering, Defendants, and Geoffrey L. Silverman, Appellee.

Docket No. 213447.

Court of Appeals of Michigan.

Submitted March 14, 2000, at Detroit.

Decided September 15, 2000, at 9:15 a.m.

Released for Publication November 16, 2000.

David G. Gorcyca, Oakland County Prosecuting Attorney, Daniel L. Lemisch, Chief, Appellate Division, and John S. Pallas, Assistant Prosecuting Attorney, for the plaintiff.

Weisman, Trogan, Young & Schloss, P.C. (by Martin C. Weisman and Lita Masini

Popke), Bingham Farms, for special master Geoffrey L. Silverman.

Before: RICHARD ALLEN GRIFFIN, P.J., and HOLBROOK, JR., and J.B. SULLIVAN¹, JJ.

RICHARD ALLEN GRIFFIN, P.J.

This case is before us pursuant to a Supreme Court order remanding the case for consideration as on leave granted. See 458 Mich. 867, 586 N.W.2d 400 (1998). On appeal, plaintiff challenges the trial court's order directing the Oakland County Prosecutor to pay a portion of a special master's fees, specifically $698.70 for services rendered. We agree with plaintiff that Carson Fischer Potts & Hyman v. Hyman, 220 Mich.App. 116, 119-121, 559 N.W.2d 54 (1996), is controlling and compels reversal of the trial court's order directing the prosecutor to pay a portion of the special master's fees. However, we follow the precedential effect of Carson only because we are compelled to do so pursuant to MCR 7.215(H)(1). Were it not for the prior precedentially binding decision, we would affirm. MCR 7.215(H)(2).

I

Plaintiff brought the present action asserting nearly three hundred claims under the Michigan Consumer Protection Act, M.C.L. § 445.901 et seq.; MSA 19.418(1) et seq. Over plaintiff's objection, the court appointed a special master to assist the court in this complex litigation. See the appendix to Judge Sullivan's concurring opinion in this matter: Order Appointing Special Master. Later, the trial court ordered plaintiff to pay for a portion of the special master's services. On appeal, plaintiff argues that the trial court's order appointing the special master was unlawful and, thus, the order directing payment for the special master's services must be reversed. We review questions of law de novo. People v. Sierb, 456 Mich. 519, 522, 581 N.W.2d 219 (1998); Kern v. Blethen-Coluni, 240 Mich.App. 333, 341-342, 612 N.W.2d 838 (2000).

Resolution of the issue at hand is governed by this Court's prior decision in Carson, supra, in which the trial court appointed an expert witness pursuant to MRE 706² to "`make findings of fact, conclusions of law and a final recommendation and proposed judgment as to the disposition of [the] matter....'" Carson, supra at 118, 559 N.W.2d 54. The expert witness was given the authority to hire a certified public accountant to assist him and, in addition, was given the duties

to review all motions and submit findings of fact to the court before the scheduled hearing date, to require the production of evidence, to issue subpoenas through the court, to conduct and regulate miscellaneous proceedings, to examine documents and witnesses, and to prepare final findings of fact and recommendations for judgment. The order permitted the parties to file written objections to the final findings and recommendations and permitted the court to adopt the expert's recommendation and judgment, to modify the recommendation, or to refer the recommendation to the expert with further instructions. [Id. at 121, 559 N.W.2d 54.]

On appeal, the defendant argued the trial court did not have the authority to appoint such experts under either MRE 706 or the Michigan Constitution because the assigned duties and responsibilities essentially made them special masters rather than expert witnesses. Carson, supra at 118-119, 559 N.W.2d 54. Citing Const. 1963, art. 6, §§ 1 and 27,³ the Carson Court agreed, explaining:

Although the Supreme Court is empowered by the Michigan Constitution to authorize persons who have been elected and have served as judges to perform judicial duties for limited periods or specific assignments, Const. 1963, art. 6, § 23, there are no constitutional or statutory authorities permitting a circuit court judge the power to appoint a retired judge or any other person to sit as a court in a civil action. Brockman v. Brockman, 113 Mich.App. 233, 237, 317 N.W.2d 327 (1982). Rather, Const. 1963, art. 6, § 27 specifically prohibits such action. In Brockman, this Court held that a Wayne Circuit Court judge was without constitutional or statutory authority to appoint a former circuit court judge to sit as the court and try the matter. Id., p. 237, 317 N.W.2d 327.

* * *

We agree with defendant that there is no constitutional authority for the trial court to delegate specific judicial functions to an "expert witness." It is within the peculiar province of the judiciary to adjudicate upon and protect the rights and interests of the citizens and to construe and apply the laws.... Thus, the trial court could not delegate its functions of making conclusions of law, reviewing motions, requiring the production of evidence, issuing subpoenas, conducting and regulating miscellaneous proceedings, examining documents and witnesses, and preparing final findings of fact. Although this is what the trial court's order purports to do, the court cannot appoint an expert witness to perform judicial functions. Accordingly, the trial court was without constitutional authority to delegate its specific judicial power to an expert witness. [Carson, supra at 120-122, 559 N.W.2d 54.]

The Carson Court further held that the trial court's order appointing an expert witness "exceeded the authority implicit in MRE 706 by requiring the expert to perform duties outside the scope of the duties of an expert witness and within the purview of the court." Id. at 123-124, 559 N.W.2d 54.

II

In the present case, the special master argues that Carson is distinguishable. We disagree and conclude the differences between the cases are immaterial. In Carson, the trial court cited MRE 706 as authority for the appointment of the special master; in this case the court relied on MCR 1.105. However, neither the rule of evidence nor the court rule expressly authorizes such an appointment. Most importantly, in both cases, the master's proposed findings of fact and conclusions of law were mere recommendations to the trial court: "If the expert's recommendation was adopted, the trial court would enter judgment in the same manner as if the action had been tried by the court." Carson, supra at 123, 559 N.W.2d 54 (emphasis added). Further, the order in Carson, like the order herein appointing the special master, "permitted the parties to file written objections to the final findings and recommendations and permitted the court to adopt the expert's recommendation and judgment, to modify the recommendation, or to refer the recommendation to the expert with further instructions." Id. at 121, 559 N.W.2d 54. Consequently, these similarities bind our disposition of the present matter to the result obtained in Carson, supra.

However, were we not compelled to follow Carson by virtue of MCR 7.215(H), we would hold the circuit court possesses the requisite, albeit implicit, authority to appoint a special master as long as the assigned duties do not unduly intrude on the exclusive domain of the court to perform judicial functions.

III

The circuit court is the trial court of general jurisdiction. It possesses the broad powers provided by M.C.L. § 600.601(1); MSA 27A.601(1):

The circuit court has the power and jurisdiction:

(A) Possessed by courts of record at the common law, as altered by the state constitution of 1963, the laws of this state, and the rules of the supreme court.

(B) Possessed by courts and judges in chancery in England on March 1, 1847, as altered by the state constitution of 1963, the laws of this state, and the rules of the supreme court.

(C) Prescribed by the rules of the supreme court.

Before the Carson decision, our circuit courts appointed special masters to assist them when the circumstances of the cases so justified. See, e.g., O'Connor v. Vander Veen, 253 Mich. 77, 234 N.W. 101 (1931), Skinner v. Lucas, 68 Mich. 424, 36 N.W. 203 (1888), Chittenden v. Witbeck, 50 Mich. 401, 15 N.W. 526 (1883), FMB-First Michigan Bank v. Bailey, 232 Mich.App. 711, 591 N.W.2d 676 (1998), O'Dess v. Grand Trunk W. R. Co., 218 Mich.App. 694, 555 N.W.2d 261 (1996), Union Bank & Trust Co., NA v. Farmwald Development Corp., 181 Mich.App. 538, 450 N.W.2d 274 (1989), Eyde v. Eyde, 172 Mich.App. 49, 431 N.W.2d 459 (1988), and Harper Creek School Dist. v. LeRoy Twp. Supervisor, 146 Mich.App. 515, 382 N.W.2d 172 (1985). While at the present time the Michigan Court Rules of 1985 do not contain an express provision either authorizing or forbidding the appointment of a special master by the circuit court,⁴ in our view, the court possesses such inherent authority. As long as the court's judicial function has not been abdicated, we would hold there is no express or implied prohibition to the appointment of a special master by the circuit court.

Our position was shared by the Supreme Court, although in dicta, in Detroit Trust Co. v. Mason, 309 Mich. 281, 309-310, 15 N.W.2d 475 (1944):

Plaintiff on appeal further contends that the court had no right to appoint a friend of the court to attempt to obtain a loan from the R.F.C. Mortgage Corporation or, later, to solicit bids higher than the Jefferson Standard proposal in order to obtain more for the bondholders.... There is authority for the appointment and payment of a friend of the court who aids in the performance of certain labors and examinations. See 3 C.J.S. p. 1048; 2 Am. Jur. p. 679[⁵]; In re...