WRB CORPORATION v. Geer, 19952.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtHUTCHESON, BROWN and WISDOM, Circuit
Citation313 F.2d 750
PartiesW.R.B. CORPORATION et al., d/b/a Robertson Construction Company, et al., Appellants, v. Odell GEER, d/b/a Odell Geer Company, and B. H. (Bert) Camp, d/b/a B.H.C. Materials Company, Appellees.
Docket NumberNo. 19952.,19952.
Decision Date30 January 1963

Arthur Mitchell, Robert C. Howell, and Jake Jacobsen, Austin, Tex., for appellants.

Lee Curtis, Belton, Tex., for appellees.

Before HUTCHESON, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

These two cases growing out of a large government construction project were consolidated for trial, but the entry of separate judgments. In each of them, the Contractor sued the Subcontractor to recover alleged overpayments made to the Subcontractor. In each the Subcontractor filed a counterclaim against the Contractor. In the final judgment in each case the Contractor recovered nothing where as each of the Subcontractors obtained a substantial recovery for additional sums. The Contractor appeals in each case. The appeals have been consolidated. All of the contentions of the Contractor as Appellant arise out of the fact that the cases were referred to and tried and determined by a Master.

Because these claims and cross claims presented a great number of controversies growing out of specific provisions of the various contracts, subcontracts, work, service and materials furnished thereunder, the District Court without objection of any of the parties concluded that it was one properly for trial before a Master under F.R.Civ.P. 53(b). The order in each found "that this is a case in which the issues are long and complicated, and * * * is a matter of account * * *." The Master was ordered to "take evidence and ascertain the amount of damages, if any sustained by any of the parties * * *" and to "* * * report his findings and conclusions to this Court * * *." The parties shortly proceeded to extensive hearings before the Master. The hearings lasted about seven days, and the record of the testimony and other proceedings covers over 1,000 pages. In addition the original exhibits sent up with the record number approximately 120 and run another 2,000 sheets or so. Upon the completion of the evidence, the parties submitted written memorandum briefs and arguments to the Master. But before the Master had an opportunity to pass upon the issues and render his report (as the order called for), he became incapacitated by acute illness from which he never recovered. The District Court thereupon entered an order appointing a successor Master. This order provided that the successor Master was "appointed as Special Master with all of the powers granted to the * * *" original Master. It was further ordered that the successor Master "shall make a report to this Court of his findings of fact and conclusions of law based upon the evidence heretofore taken by the original Master and upon the record of such evidence with the power, however, to take any further evidence which the successor Master may deem necessary." No objection was made by any party to the appointment of a successor Master, the entry of this order or any of its terms. Specifically no objection or exception was taken to the provision that the successor Master should determine the controversy on the basis of the existing record. Although the order allowed the taking or retaking of further testimony, neither party offered any additional evidence, nor was any request made that hearings for such purpose be held.

The successor Master, after consideration of the existing record — including the memorandum briefs and arguments previously filed — took the case under advisement. Several months thereafter he rendered a separate report in each case containing detailed findings of fact and conclusions of law. To each report the Contractor (the present Appellant) filed numerous detailed exceptions. These generally attacked the specific findings because not supported by sufficient or any evidence and because such findings were clearly erroneous. These were also amplified by specific request for additional findings, conclusions of law, or both. No exception or objection was urged that the successor Master had reached his conclusions based upon the prior record. Nor was there any exception or objection that the successor Master should have heard any part, or all, of that testimony again through the personal appearances of the witnesses before him. Likewise, there was no exception or objection as to any procedural action, or nonaction, on the part of either the original or successor Master.

The District Court thereafter held a hearing on the exceptions to the Master's report. This was attended by counsel and the successor Master. The Court sustained certain exceptions urged by the Subcontractors in one of the two cases. But other than this the Court, by formal order, subsequently overruled all exceptions filed by the Contractor. It bears repeating that at no time prior to the entry by the District Court of the order confirming the reports (except as modified) of the successor Master was objection or exception ever made by the Appellant either as to (a) the case being referred to the successor Master, or (b) to his consideration and determination of the controversy on the basis of the initial existing record. Indeed, no such objections were...

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35 cases
  • Case v. Morrisette, 22810.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 27 Febrero 1973
    ...although supported by substantial evidence a finding may be set aside if it is found to be clearly erroneous. W.R.B. Corp. v. Geer, 313 F.2d 750, 753 (5th Cir. 1963); Jackson v. Hartford Accident & Indem. Co., 422 F.2d 1272, 1275-1278 (8th Cir. 1970); 5A J. Moore, Federal Practice ¶ 52.031,......
  • Three Levels Corp. v. Conservation Comm'n of the Town of Redding, 34298.
    • United States
    • Appellate Court of Connecticut
    • 11 Febrero 2014
    ...v. Morrisette, 475 F.2d 1300, 1307 n. 35 (D.C.Cir.1973) (substantial evidence and clearly erroneous not synonymous); W.R.B. Corp. v. Geer, 313 F.2d 750, 753 (5th Cir.1963) (same), cert. denied, 379 U.S. 841, 85 S.Ct. 78, 13 L.Ed.2d 47 (1964).... [89 A.3d 12] “The distinction between the cle......
  • City of Houston v. Standard-Triumph Motor Company, 21073.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 6 Julio 1965
    ...pro and con, of the parties and the indispensable help of earnest, vigorous advocates, see W. R. B. Corp. v. Geer, 5 Cir., 1963, 313 F.2d 750, 753, it was the Court after all which had the obligation of effectuating this congressional will. We are confident that had this vital issue been br......
  • Jet Spray Cooler, Inc. v. Crampton
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 26 Enero 1979
    ...Plywood Corp. v. Georgia-Pacific Corp., 362 F.Supp. 700, 704 (S.D.Ga.1973), aff'd, 504 F.2d 515 (5th Cir. 1974). W.R.B. Corp. v. Geer, 313 F.2d 750, 753 (5th Cir. 1963), cert. denied, 379 U.S. 841, 85 S.Ct. 78, 13 L.Ed.2d 47 (1964). The judge must reject the master's report where the master......
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