Montana Code Annotated 2023



VI. Trials


Rule 53. Masters.

(a) Appointment.

(1) Definition. As used in these rules, the word "master" includes a referee, an auditor, an examiner, and an assessor.

(A) Standing Masters. A judicial district may appoint one or more standing masters for its district with the concurrence of a majority of all the judges in the district.

(B) Special Masters. A court in which any action is pending may appoint a special master in the action.

(C) Water Masters. The water court may appoint water masters as provided by law.

(2) Compensation. The court must fix a special master's compensation. The compensation must be paid either:

(A) by a party or parties; or

(B) from a fund or subject matter of the action within the court's control.

(3) Writ of Execution. When a party ordered to pay the master's compensation does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party. The master may not retain the master's report as security for the master's compensation.

(b) References Limited.

(1) A court may refer to a special master:

(A) an action to be tried by a jury only when the issues are complicated;

(B) an action to be tried by the court only on a showing that some exceptional condition requires the reference, or in an accounting.

(2) Referrals to standing masters and water masters may be as provided by law or by district court and water court rules.

(c) Master's Powers.

(1) In General. The order of reference may:

(A) direct the master to report only upon particular issues;

(B) direct the master to do or perform particular acts;

(C) direct the master to receive and report evidence only;

(D) fix the time and place for beginning and closing the proceedings and for the filing of the master's report; or

(E) otherwise specify or limit the master's powers.

(2) Proceedings. Unless the order of reference directs otherwise, a master may:

(A) regulate all proceedings;

(B) require the production before the master of evidence upon all matters embraced in the reference;

(C) rule upon the admissibility of evidence;

(D) administer oaths and examine parties and other witnesses under oath; and

(E) take all appropriate measures to perform the master's duties under the order efficiently.

(3) Record. On request of a party, the master must make a record of the evidence as provided in the Montana Rules of Evidence for a court sitting without a jury.

(d) Procedure.

(1) Meetings. When a reference is made, the clerk must promptly provide the master with a copy of the order of reference. Unless the order of reference provides otherwise, upon receipt of the order the master must set a time and place for the first meeting of the parties or their attorneys and notify the parties or their attorneys of the meeting. The first meeting must be held within 20 days of the order of reference unless otherwise provided by the order. The master must proceed with all reasonable diligence. Either party, on notice to the parties and master, may apply to the court for an order requiring the master to speed the proceedings and to make the report. If a party fails to appear at a meeting, the master may proceed ex parte or, in the master's discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.

(2) Witnesses. Parties may command the attendance of witnesses before the master by subpoenas as provided in Rule 45. A witness who, without adequate excuse, fails to appear or give evidence may be sanctioned or held in contempt as provided by Rules 37 and 45.

(3) Statement of accounts. In accountings, the master may prescribe the form in which the accounts shall be submitted and, when appropriate, may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may:

(A) require a different form of statement;

(B) require proof of the accounts or specific items by oral examination of the accounting parties, or upon written interrogatories or in such other manner as the master directs.

(e) Report.

(1) Contents and filing. The master must prepare a report upon the matters submitted to the master by the order of reference. If required to make findings of fact and conclusions of law, the master shall set them forth in the report. The master must file the report with the clerk of the court and serve on all parties notice of the filing. In an action to be tried without a jury, unless otherwise directed by the order of reference, the master must file with the report a transcript of the proceedings and of the evidence and the original exhibits. Unless otherwise directed by the order of reference, the master shall serve a copy of the report on each party.

(2) In nonjury actions. In an action to be tried by the court, the court must accept the master's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report, any party may serve written objections to the report. Application to the court for action upon the report and objections must be by motion and upon notice as provided by Rule 6(d). After hearing, the court may adopt the report, modify it, reject it in whole or in part, receive further evidence, or recommit it with instructions.

(3) In jury actions. In an action to be tried by a jury, the court may not direct the master to report the evidence. The master's findings upon the issues submitted to the master are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report.

(4) Stipulations as to findings. The effect of a master's report is the same whether or not the parties have consented to the reference. However, when the parties stipulate that a master's findings of fact are final, the court may only review the master's legal conclusions.

(5) Draft report. Before filing the master's report, a master may submit a draft of the report to counsel for all parties for the purpose of receiving their suggestions.

History: En. Sup. Ct. Ord. No. AF 07-0157, April 26, 2011, eff. Oct. 1, 2011.