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07/13/77 ARTCO v. ANTHONY DIFRUSCIA

July 13, 1977

ARTCO, INC.
v.
ANTHONY DIFRUSCIA



Essex. Contract. Writ in the Superior Court dated August 8, 1972. The action was heard by J. P. Sullivan, J., on a master's report. A motion for relief from judgment was heard by Bennett, J.

Hale, C.j., Grant, & Brown, JJ.

SYLLABUS BY THE COURT

Practice, Civil, Master: report of evidence, objections to report; Judgment, Relief from judgment.

The opinion of the court was delivered by: Brown

A party's failure to file timely objections to a master's report and to request a summary of evidence relieved the master of the duty imposed by Rule 49, § 7, of the Superior Court (1974) to append to his report a summary of so much of the evidence as might be necessary to enable the court to decide questions of law urged by that party and determine the sufficiency of evidence to support the master's findings. [515-516]

No error appeared in the denial of a party's motion for relief from judgment where, to the extent the motion was predicated on Mass.R.Civ.P. 60(b) (2) or (3), it was not filed within one year after the judgment originally entered [516-517]; and, to the extent it was predicated on Rule 60(b) (6), no abuse of the Judge's discretion was shown [517-518].

The plaintiff brought this action in the Superior Court, alleging in three counts that the defendant owed it money under the terms of a contract between the parties by which the plaintiff was to provide the labor and materials for the renovation of a building owned by the defendant. The defendant's answer consisted of a general denial and also alleged (1) that the labor and materials supplied by the plaintiff were defective, and (2) payment.

The case was referred to a master under a stipulation that the master's findings of fact should be final. The order of reference stated that he should not report any evidence except as required for consideration of questions of law. The defendant hired a stenographer for the hearing, and the stenographer was approved by the master. At the Conclusion of the hearing the master was presented with the transcript of the hearing.

A draft report was submitted to the parties, and the parties' suggestions were incorporated therein. On January 10, 1975, a "final" report was filed. On January 16, 1975, the defendant filed objections to and moved to strike the report. The plaintiff moved to confirm the report, and for judgment. On April 11, 1975, the Judge ruled that the plaintiff's motion to confirm the report would be allowed if the plaintiff's earlier motion to amend the complaint by adding a count in quantum meruit should be allowed within fifteen days.

Upon allowing the plaintiff's motion to amend the complaint by adding a fourth count in quantum meruit, the Judge recommitted the case to the master to make findings on that count.

On June 10, 1975, the master filed a supplemental report with the court. Apparently later that day, the defendant filed "preliminary objections" to the master's supplemental report. *fn1 On June 30, 1975, upon motion of the plaintiff, the court entered an order adopting the master's report and supplemental report and granted judgment thereon. The defendant then filed a notice of appeal.

On July 18, 1975, the defendant filed a motion for relief from judgment under Mass.R.Civ.P. 60(a), 365 Mass. 828 (1974), alleging that there had been a clerical error in the computation of the interest included in the judgment. The Judge allowed that motion and ordered entry of judgment with the interest correctly computed on January 26, 1976. On January 13, 1977, the defendant filed a motion for relief from judgment under Rule 60(b) (2), (3) and (6), 365 Mass. 828-829 (1974). Following a hearing, that motion was denied.

1. The defendant contends that the master failed to comply with Rule 49, § 7, of the Superior Court (1974), as in effect prior to the amendment of May 8, 1976, by not appending to his reports summaries of the evidence that would have enabled the court to rule upon a disputed question of law and to determine whether there was sufficient evidence to support the master's findings. It was therefore error, the defendant argues, for the Judge to have confirmed the master's reports and ordered entry of judgment thereon.

The defendant's objections, filed on January 16, 1975, were not timely filed. The preliminary objections referred to in Rule 49, § 7, were required to be served on the master before he submitted his report. Michelson v. Aronson, 4 Mass. App. Ct. 182, 187-189 (1976). The defendant's failure to file his objections on time relieved the master of the obligation imposed by Rule 49, § 7, to append to his report a summary of so much of the evidence as might have been necessary to decide questions of law urged by the defendant. *fn2 Moreover, Rule 49, ยง 7, required that a party desiring a master to append a summary of the relevant evidence to his report was obligated to file a written request for such summary with the preliminary objections. Watkins v. Simplex Time Recorder Co. 316 Mass. 217, 222 ...


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