C.r.c.p. 53
C.r.c.p. 53
COMMENT
2018
See also C.R.C.P. 122 Case Specific Appointment of Appointed Judges pursuant to C.R.S. § 13- 3-111.
Annotation I. General Consideration. Law reviews. For article, "Trials: Rules 38-53 ", see 23 Rocky Mt. L. Rev. 571 (1951). For article, "One Year Review of Civil Procedure and Appeals", see 37 Dicta 21 (1960). Annotator's note. Since this rule is similar to §§ 223 to 235 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing those sections have been included in the annotations to this rule. This rule and the sections of the former Code of Civil Procedure it supersedes are substantially the same. Julius Hyman & Co. v. Velsicol Corp., 123 Colo. 563, 233 P.2d 977, cert. denied, 342 U.S. 870, 72 S. Ct. 113, 96 L. Ed. 654, reh'g denied, 342 U.S. 895, 72 S. Ct. 199, 96 L. Ed. 671 (1951). The relationship between a master and the trial court is the same relationship as exists between a trier of fact and an appellate reviewing body. Sunshine v. Sunshine, 30 Colo. App. 67, 488 P.2d 1131 (1971). Applied in United States v. City & County of Denver, 656 P.2d 1 (Colo. 1982); In re Westlake, 674 P.2d 1386 (Colo. App. 1983); In re Brantley, 674 P.2d 1388 (Colo. App. 1983). II. Appointment and Compensation. The appointment of a master is a discretionary matter, not a matter of right. Gypsum Aggregates Corp. v. Lionelle, 170 Colo. 282, 460 P.2d 780 (1969). Master's fee of $2,500 held unjustified in circumstances of case. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972). III. Reference. This rule and federal rule identical. Because this rule, and F.R.C.P. 53(b) are identical, federal decisions are persuasive authority on procedural matters. Curtis, Inc. v. District Court, 182 Colo. 73, 511 P.2d 463 (1973). Referral of a case to a master is declared to be the exception and not the rule. Gypsum Aggregates Corp. v. Lionelle, 170 Colo. 282, 460 P.2d 780 (1969). Masters should not be appointed as a routine matter in cases where the issues are not complex and the facts are not complicated. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972). Circumstances in divorce action insufficient to warrant reference to master. Gelfond v. District Court, 180 Colo. 95, 504 P.2d 673 (1972). The showing of an exceptional condition requiring the reference of a case to a master is not necessary under section (b) of this rule where, subsequent to the appointment of a master, the parties make a voluntary stipulation that the master should act as arbitrator, and he continues in the case as arbitrator rather than as master. Zelinger v. Mellwin Constr. Co., 123 Colo. 149, 225 P.2d 844 (1950). A reference may be ordered when the trial of an issue of fact requires the examination of any long account on either side. Wilson v. Union Distilling Co., 16 Colo. App. 429, 66 P. 170 (1901). Possibly, conditions might exist which would render a refusal to order a reference an abuse of judicial discretion and therefore erroneous. Wilson v. Union Distilling Co., 16 Colo. App. 429, 66 P. 170 (1901). Denial of belated request for referral held not error. Gypsum Aggregates Corp. v. Lionelle, 170 Colo. 282, 460 P.2d 780 (1969). Order for reference properly entered in action for accounting. In an action for accounting where defendant objected to the appointment of a referee unless and until the plaintiff had rendered an account to it, the court properly exercised its right in overruling the objection and entering an order for reference on the pleadings; no substantial prejudice resulting therefrom, error based upon the claim of premature reference could not be successfully urged on review. Lallier Const. & Eng'r Co. v. Morrison, 93 Colo. 305, 25 P.2d 729 (1933). The mere fact that an accounting may be necessary is not sufficient in itself to justify a reference to a master if it appears that the matter is simple and would not consume an undue amount of the court's time. Gelfond v. District Court, 180 Colo. 95, 504 P.2d 673 (1972). Even where an accounting possesses the requisite complexity and difficulty, there is no license in this rule to refer all the issues presented in a case to a master. Gelfond v. District Court, 180 Colo. 95, 504 P.2d 673 (1972). The issuance of a writ to mandate the vacation of a reference order to a master is necessary where the court is proceeding in excess of its power, for to await the final judgment based on the master's report would be too late and any appeal at that point a futile act, as the expenditure of both time and money would already have occurred, and there would then be no way to undo what had already been erroneously done. Gelfond v. District Court, 180 Colo. 95, 504 P.2d 673 (1972). In a civil action which involved disclosure of trade secrets and confidential information concerning plaintiff's record keeping and information systems, the plaintiff is entitled to have the judge hear the evidence initially and not through a report from a referee. Curtis, Inc. v. District Court, 182 Colo. 73, 511 P.2d 463 (1973). IV. Powers. Where the order of reference is general and the master is given authority to determine issues of law and of fact, his powers are coextensive with those of the court. Belmont Mining & Milling Co. v. Costigan, 21 Colo. 471, 42 P. 647 (1895). Delegation of decision making is abdication of constitutional responsibilities. Where the trial court's order appointing the master in effect delegates the decision making as well as the fact finding function to the master, the judge abdicates his constitutional responsibilities and duties. Gelfond v. District Court, 180 Colo. 95, 504 P.2d 673 (1972). Reference of all the issues presented may be sanctioned only under the most compelling circumstance. Gelfond v. District Court, 180 Colo. 95, 504 P.2d 673 (1972). Where the order of reference is limited, the cause being referred with authority to take the testimony and report the same with findings of fact thereon at the next term of court, the order further fixing the time during which the parties should present their evidence, then the master has no power to grant a continuance nor has he authority to pass upon a question as to the sufficiency of the complaint. Belmont Mining & Milling Co. v. Costigan, 21 Colo. 471, 42 P. 647 (1895). Where a court orders a certified public accountant to audit and file a report, but the record lacks any order of reference as contemplated by this rule which would set forth the scope of the auditor's authority, it is assumed that the auditor or master is to perform the limited function of auditing the "reserve account", as provided in section (b) pertaining to matters of account in actions tried without a jury. Credit Inv. & Loan Co. v. Guaranty Bank & Trust Co., 166 Colo. 471, 444 P.2d 633 (1968). Trial court was correct in dismissing a report of the master which was not requested by the trial court because production of such report was outside the master's powers as set forth in the order of appointment. CNA Ins. Co. v. Berndt, 839 P.2d 492 (Colo. App. 1992). This rule provides that a master may rule upon the admissibility of evidence unless otherwise directed by the order of reference. Oswald v. Dawn, 143 Colo. 487, 354 P.2d 505 (1960). V. Proceedings. This rule contemplates that a hearing rather than an "ex parte" investigation shall be held. Oswald v. Dawn, 143 Colo. 487, 354 P.2d 505 (1960). Witnesses may be examined at evidentiary bearings. When a master is appointed, this rule contemplates that the master will conduct evidentiary hearings at which witnesses may be examined and cross-examined. Sunshine v. Sunshine, 30 Colo. App. 67, 488 P.2d 1131 (1971). The word "hearing" contemplates not only the privilege to be present when the matter is being considered, but also the right to present one's contention and support the same by proof and argument. Brown v. Brown, 161 Colo. 409, 422 P.2d 634 (1967). The master occupies the position of finder of fact. Sunshine v. Sunshine, 30 Colo. App. 67, 488 P.2d 1131 (1971). In case of death of the master before findings are made, it is necessary that his successor begin the proceedings anew or that the trial court hold hearings on its own before making findings. Sunshine v. Sunshine, 30 Colo. App. 67, 488 P.2d 1131 (1971). A successor master who fails to conduct a hearing "de novo" lacks jurisdiction to enter any findings or conclusions. Sunshine v. Sunshine, 30 Colo. App. 67, 488 P.2d 1131 (1971). Mutual consent cannot confer jurisdiction where it is absent. Sunshine v. Sunshine, 30 Colo. App. 67, 488 P.2d 1131 (1971). It is error for the court to appoint one to succeed another as master with the admonition to make findings and recommendations based upon the transcript of the hearings held before the first master, inasmuch as the newly appointed master has to conduct his own hearings and in general conduct a hearing "do novo" on the matters in controversy before he can properly make findings and recommendations to the court. Sunshine v. Sunshine, 30 Colo. App. 67, 488 P.2d 1131 (1971). VI. Report. A. Contents and Filing. Master's duty to report findings. It is a master's duty to conduct hearings, receive evidence, listen to the testimony on the issues involved, and then report his findings of fact and conclusions to the trial court. Sunshine v. Sunshine, 30 Colo. App. 67, 488 P.2d 1131 (1971). Bald conclusions are not sufficient. Where the master's report does not contain findings of fact relating to many of the issues that would be significant and is replete with conclusions, the bald conclusions are not sufficient to support a recommendation or a court order based upon the recommendations. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972). Referee's report is recommendation, not order. The report of the referee is not an order; it is a recommendation. The referee has no power to enter orders or decrees. In re Debreceni, 663 P.2d 1062 (Colo. App. 1983); In re Petroff, 666 P.2d 1131 (Colo. App. 1983). Until the report is acted on by the court, no legal consequence may be attached to it. In re Debreceni, 663 P.2d 1062 (Colo. App. 1983). Without further court action, the referee's decision is not a judgment, much less a final judgment. In re Petroff, 666 P.2d 1131 (Colo. App. 1983). Court may receive further evidence. Following the filing of a master's report, the court may receive further evidence, and it may also recommit the report to the master with instructions. When an item has been omitted from the master's accounting, evidence concerning that item may be properly admitted. Rasheed v. Mubarak, 695 P.2d 754 (Colo. App. 1984). Notice must be given of filing of orders. Handwritten orders which served to notify party of what permanent orders included did not fulfill notice requirement since they did not serve to notify party that referee's report was final and had been turned over to court for final consideration. Barron v. District Court, 683 P.2d 353 (Colo. 1984). This rule requires the trial court to hold a hearing on all motions or objections to a master's report before taking any action on such report. But, where the trial court had heard defendant's objections to the report and had consistently held the master to his original grant of authority, the trial court did not err in refusing to hold a hearing on defendant's objections to the report. CNA Ins. Co. v. Berndt, 839 P.2d 492 (Colo. App. 1992). B. Nonjury Actions. Section (e)(2) of this rule, binds a trial court to accept the findings of a master just as effectively as C.R.C.P. 52(a), binds an appellate court to accept findings of a trial court. Hutchinson v. Elder, 140 Colo. 379, 344 P.2d 1090 (1959); Brown v. Brown, 161 Colo. 409, 422 P.2d 634 (1967); In re Smith, 641 P.2d 301 (Colo. App. 1981). Section (e)(2) of this rule prohibits the trial court from rejecting the master's report without a hearing to determine whether the master's findings were clearly erroneous, and then ordering a jury trial over the objection of the parties. Dobler v. District Court, 806 P.2d 944 (Colo. 1991). Master's findings accepted unless clearly erroneous. Once a court has referred the determination of permanent orders to a master, the court is bound to accept the master's findings of fact unless clearly erroneous. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972); Dobler v. District Court, 806 P.2d 944 (Colo. 1991); In re Schelp, 194 P.3d 450 (Colo. App. 2008), rev'd on other grounds, 228 P.3d 151 (Colo. 2010). Appellate courts should accept master's findings. Under customary practice and this rule of procedure an appellate court should accept a master's findings unless clearly erroneous. People ex rel. Kent v. Denious, 118 Colo. 342, 196 P.2d 257 (1948). References of all the issues presented reduce the function of the judge to that of a reviewing court. Gelfond v. District Court, 180 Colo. 95, 504 P.2d 673 (1972). Where the order appointing a master gives him no specific power to make findings of fact, but in his report he reports the evidence taken by him together with his findings of fact, his findings are not conclusive either upon the trial court or an appellate court. Michael v. Tracy, 15 Colo. App. 312, 62 P. 1048 (1900). Only if clearly erroneous, that is, only if clearly unsupported by the evidence in the record, may such findings be disturbed by the trial court. Sunshine v. Sunshine, 30 Colo. App. 67, 488 P.2d 1131 (1971); Dobler v. District Court, 806 P.2d 944 (Colo. 1991). Even if the trial court disagrees with the conclusions reached, it is not free to tamper with the findings of a master if, based upon the evidence, a reasonable man might have reached the same conclusions as did the master. Sunshine v. Sunshine, 30 Colo. App. 67, 488 P.2d 1131 (1971). Where a master has been appointed, his findings should not be disturbed merely because the trial court is of a different opinion or is dissatisfied with the master's findings. Brown v. Brown, 161 Colo. 409, 422 P.2d 634 (1967); Dobler v. District Court, 806 P.2d 944, (Colo. 1991). When there is any testimony consistent with the findings, it must be treated as unassailable except when "clearly erroneous". Brown v. Brown, 161 Colo. 409, 422 P.2d 634 (1967); In re Smith, 641 P.2d 301 (Colo. App. 1981). The basis for the rule that the court must accept the master's report and conclusions unless the same are clearly not supported by the evidence is that the master is presumed to be the best judge of the credibility of witnesses and the weight to be given to their testimony. Sunshine v. Sunshine, 30 Colo. App. 67, 488 P.2d 1131 (1971). A trial court's substitution of its conclusion for a master's is erroneous because on a question of fact, insofar as it depends upon conflicting testimony, credibility of witnesses, and demeanor of witnesses, the master is the only one who can reach a conclusion in this area. Brown v. Brown, 161 Colo. 409, 422 P.2d 634 (1967); In re Smith, 641 P.2d 301 (Colo. App. 1981). When proper exceptions are filed, the findings of a master do not become the findings of a court unless approved by the court. Maniatis v. Stiny, 130 Colo. 261, 274 P.2d 975 (1954). If the sufficiency of the evidence to sustain the findings of a master is challenged, a court cannot determine this question without an examination of the testimony taken and reported by the master. Maniatis v. Stiny, 130 Colo. 261, 274 P.2d 975 (1954). The object of permitting exceptions to be filed is to give the party filing them an opportunity to point out to the court wherein the report of a master is erroneous. Maniatis v. Stiny, 130 Colo. 261, 274 P.2d 975 (1954). The authority of a court thus invoked cannot be exercised capriciously. Maniatis v. Stiny, 130 Colo. 261, 274 P.2d 975 (1954). The court cannot act intelligently without an examination of the questions raised by the exceptions. Maniatis v. Stiny, 130 Colo. 261, 274 P.2d 975 (1954). When they challenge the sufficiency of the evidence to sustain the findings of a master, it is both the province and duty of a court to examine the testimony and review the conclusions. Maniatis v. Stiny, 130 Colo. 261, 274 P.2d 975 (1954). Failing to examine the testimony and review the conclusions, over proper exceptions, the court has no authority to approve the report. Maniatis v. Stiny, 130 Colo. 261, 274 P.2d 975 (1954). Amendment to timely filed objection permitted. There is no prohibition against filing an amendment to a timely filed objection to a master's report before a hearing on that objection has occurred. Rocky Mt. Power Co. v. Colo. River Water Conservation Dist., 646 P.2d 383 (Colo. 1982). The court may reject report after hearing. Under section (e)(2) of this rule, the trial court is granted, among other alternatives, the authority to reject the master's report after hearing. Brown v. Brown, 161 Colo. 409, 422 P.2d 634 (1967); In re Smith, 641 P.2d 301 (Colo. App. 1981). The court can make new findings after a new hearing. Under section (e)(2) of this rule, when the trial court rejects the master's report, it can only make new findings after it has conducted a hearing of its own. Sunshine v. Sunshine, 30 Colo. App. 67, 488 P.2d 1131 (1971). This is a mandatory procedure in cases where the court rejects or modifies the master's report. Sunshine v. Sunshine, 30 Colo. App. 67, 488 P.2d 1131 (1971). Approved findings bind appellate court just as jury verdict. Findings approved by a trial court are entitled to the same weight and are just as binding on an appellate court as the verdict of a jury. Julius Hyman & Co. v. Velsicol Corp., 123 Colo. 563, 233 P.2d 977, cert. denied, 342 U.S. 870, 72 S. Ct. 113, 96 L. Ed. 654, reh'g denied, 342 U.S. 895, 72 S. Ct. 199, 96 L. Ed. 671 (1951). The findings of a master, as to their conclusive effect in an appellate court, stand as a verdict of a jury or the findings of a court. Crater v. McCormick, 4 Colo. 196 (1878); Kimball v. Lyon, 19 Colo. 266, 35 P. 44 (1893); Groth v. Kersting, 4 Colo. App. 395, 36 P. 156 (1894). Where a master hears evidence and makes findings of fact thereon and his findings are approved by the trial court, the findings are entitled to the same weight and are just as binding on an appellate court as the verdict of a jury or findings of the trial court made upon oral testimony. Noble v. Faull, 26 Colo. 467, 58 P. 681 (1899). There being sufficient evidence to support the findings and judgment, an appellate court is bound by the findings and judgment in the court below. Peck v. Alexander, 40 Colo. 392, 91 P. 38 (1907). Where findings are supported by the evidence and are not manifestly against the weight of the evidence, they will not be disturbed by an appellate court. Perdew v. Creditors of Coffin's Estate, 11 Colo. App. 157, 52 P. 747 (1898). Findings accepted unless master or court was governed by bias or prejudice. Findings of a master, when based upon conflicting evidence, will not be interfered with upon appeal if there is legal evidence to sustain them, unless it appears that the master or the trial court was governed by bias or prejudice or influenced by passion. Noble v. Faull, 26 Colo. 467, 58 P. 681 (1899). Section (e)(2) of this rule inapplicable in dependency proceeding. Section (e)(2) of this rule, which provides that in an action tried without a jury the court shall accept a master's or referee's findings of fact unless clearly erroneous, is inapplicable in a dependency proceeding because that is a statutory proceeding in which the statute supersedes the conflicting rule. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976). Applied in Thompson v. McCormick, 169 Colo. 151, 454 P.2d 934 (1969); P.F.P. Family Holdings v. Stan Lee Media, 252 P.3d 1 (Colo. App. 2010). C. Stipulation. Stipulation that master should act as arbitrator instead held all right. Zelinger v. Mellwin Constr. Co., 123 Colo. 149, 225 P.2d 844 (1950). Even though use of a "master" pursuant to this rule conflicts with § 38-44-108 for resolving a disputed boundary, because the parties stipulated for the entry of judgment upon final approval of the surveyor's report by the trial court, the parties waived their rights to object to the trial court's determination of the disputed boundary. Durbin v. Bonanza Corp., 716 P.2d 1124 (Colo. App. 1986).
For appointment of referees in cases under the workers' compensation law, see § 8-43-208, C.R.S.; for when referee appointed in registration of land titles, see § 38-36-127 , C.R.S.; for sanctions for failure to make discovery, see C.R.C.P. 37; for subpoenas for attendance of witnesses, see C.R.C.P. 45; for civil contempt, see C.R.C.P. 107; for interrogatories to parties, see C.R.C.P. 33; for time at which a written motion shall be served, see C.R.C.P. 6(d); for admissibility of evidence, see C.R.C.P. 43(a); for parties, see C.R.C.P. 17 to 25.