Dakota Grain Systems, Inc. v. Rauser

435 N.W.2d 205, 1989 N.D. LEXIS 17, 1989 WL 728
CourtNorth Dakota Supreme Court
DecidedJanuary 9, 1989
DocketCiv. 880004-880006
StatusPublished
Cited by9 cases

This text of 435 N.W.2d 205 (Dakota Grain Systems, Inc. v. Rauser) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dakota Grain Systems, Inc. v. Rauser, 435 N.W.2d 205, 1989 N.D. LEXIS 17, 1989 WL 728 (N.D. 1989).

Opinion

MESCHKE, Justice.

We reject objections to a trial court’s use of a special master’s report of accountings pursuant to NDRCivP 53. We affirm.

Raymond Zajac farmed and sold grain bins; Claire Rauser erected grain-handling and storage systems. In 1981, Zajac and Rauser began Dakota Grain Systems to sell and erect grain bins. By oral agreement, Rauser contributed equipment and tools and Zajac contributed accounts receivable and inventory of lesser values to be adjusted later. Rauser, as manager, received both a salary and commissions on his sales; Zajac received commissions on his sales. Business was good but much of the income was used to pay past debts.

In 1983, after their relationship soured, Zajac sold the business to Rauser. In late 1983, a judgment resulted in seizure of the inventory by a creditor. Rauser then refused to complete his purchase. Zajac and his corporation, Dakota Grain Systems, Inc., sued Rauser and his corporations, Rauser Construction, Inc. and Superior Systems, Inc. The three suits were consolidated.

In the first suit, Zajac claimed Rauser was indebted to Dakota Grain Systems. Rauser’s answer claimed that an accord and satisfaction and a novation barred recovery. Rauser counterclaimed for money and services contributed to Dakota Grain Systems. In the second suit, Zajac claimed that Rauser owed him for part of the purchase of a building for the business. Rau-ser’s answer claimed that the debt was offset by other amounts and benefits and was satisfied by an accord and satisfaction. In the third suit, Zajac sought specific performance of Rauser’s contract to buy Dakota Grain Systems or, alternatively, rescission and damages. Rauser’s answer claimed breach of contract.

Both sides agreed to the appointment of a special master to make eleven accounting determinations. They selected a certified public accountant with experience as a bankruptcy trustee. The order of reference by the trial court was prepared by Zajac’s counsel. 1 The order listed the eleven accounting items to be investigated and determined. It declared that the master “shall have all powers specified under Rule 53.” 2 The order said nothing about procedure other than directing the master to *207 “proceed expeditiously with such meetings, hearings, accountings and the preparation of his report in accordance with directives set out under Rule 53” The court reserved “the right to determine the legal effect of any and all transactions between the parties.”

The master met separately with the parties several times. Neither party requested that the master keep a record.

After the master reported, Zajac timely objected to some of the accountings summarized in the report. For the most part, the written objections complained about evidence not considered and lack of documentation for some of the accountings. Those objections did not specify the lack of a transcript as a procedural error; nor did Zajac then request examination of the master about details of his report. Zajac moved, in general terms, “to reject said report in whole or in part, or in the alternative, modify said report upon hearing additional evidence, or in the alternative, recommit said report with instructions to the Special Master.” See NDRCivP 53(f)(2).

At a separate hearing on the objections, Zajac sought to call the master for cross-examination about details of his report. The trial court refused to permit it, saying “[tjhat’s just like cross-examining the Judge.” The trial court ruled that the master’s accountings were not clearly erroneous, disallowed the objections, and adopted the report subject to a later trial.

At trial, Zajac subpoenaed the master, again seeking to probe details of his determinations. Zajac persisted in arguing that the master failed to recognize some of Za-jac’s information, that the master failed to explain why the information was not used, and that some of the accountings were “unsupported by any documentation.” The trial court permitted Zajac’s counsel to examine the master, but did not permit questions about details of the master’s determinations. The trial court ruled that further questions on accounting items were not timely because their correctness had been established when the hearing was held on Zajac’s objections to the master’s report.

In written findings, the trial court held:

“The report of the master, including each of the factual findings summarized therein, is well reasoned and substantiated. Despite the various objections ... no clear error on the part of the master has been established.”

The trial court made other findings favorable to Rauser, “approved and adopted” the master’s report, and used four of the accounting items from the report to order judgment for Rauser against Zajac for $13,827.21. Zajac appealed.

On appeal, Zajac’s primary contention was that the master’s report was defective because it did not document and explain all of its “conclusory” determinations. Zajac argued that a master must keep a record even without a request from a party. He further contended that the trial court surrendered its decision-making role to the master. Zajac asked that we reverse the trial court and remand “directing the court to utilize the alternative provisions of Rule 53....”

NDRCivP 53 is a special-purpose civil rule largely derived from FRCivP. It permits a trial judge to appoint someone as a temporary judicial officer to assemble, sort through and report on complex evidence. As in the federal practice, “reference to a master [is] ... the exception and not the rule.” In a non-jury case, “save in matters of account, a reference may be made only upon a showing that some exceptional condition requires it.” NDRCivP 53(b). (Our emphasis). Thus, the trial court properly chose to appoint a master for matters of accounting — the principal function of this special rule.

Zajac cited U.S. v. Merz, 376 U.S. 192, 84 S.Ct. 639, 11 L.Ed.2d 629 (1964) as precedent that the master should have kept a record and better explained his report. In Merz, the United States Supreme Court considered a report of a commission appointed by a district court to determine just compensation in eminent domain proceedings. Under FRCivP 71A, the powers and procedures of such a commission are those of a master under FRCivP 53. The commissioners had made awards without ex *208 plaining “which evidence the Commission credited and which it discredited” and, in part, going beyond their record of the evidence. The court of appeals affirmed in part but remanded for resubmission to the commissioners for explanation of the excessive part of its awards. The United States Supreme Court concluded that the reports “leave much to be desired” and that none of them “should have been adopted without more by the District Court.” In reversing for resubmission or for resolution by the trial court, the Court expressed important thoughts about use of Rule 53 reports:

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Bluebook (online)
435 N.W.2d 205, 1989 N.D. LEXIS 17, 1989 WL 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dakota-grain-systems-inc-v-rauser-nd-1989.