N.M. R. Civ. P. Dist. Ct. 1-053

As amended through August 23, 2024

Rule 1-053 - Masters

A.Appointment and compensation. The court in which any action is pending may appoint a special master therein. As used in these rules the word "master" includes a referee, an auditor and an examiner. The compensation to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the court as the court may direct. The master shall not retain his report as security for his compensation; but when the party ordered to pay the compensation allowed by the court 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.

B.Reference. A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.

C.Powers. The order of reference to the master may specify or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents and writings applicable thereto. He may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may himself examine them and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in Rule 1-043 NMRA for a court sitting without a jury.

D.Proceedings.

(1) When a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the master shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within twenty (20) days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the master to 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 his report. If a party fails to appear at the time and place appointed, the master may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.

(2) The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in Rule 1-045 NMRA. If without adequate excuse a witness fails to appear or give evidence, he may be punished by the district judge as for a contempt and be subjected to the consequences, penalties and remedies provided in Rules 1-037 and 1-045.

(3) When matters of accounting are in issue before the master, he may prescribe the form in which the accounts shall be submitted and in any proper case 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 require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as he directs.

E.Report.

(1) The master shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report. He shall file the report with the clerk of the court and unless waived by the parties he shall file with it a transcript or other authorized recording of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.

(2) In an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous. Within ten (10) days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Paragraph C of Rule 1-006 NMRA. The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.

(3) In an action to be tried by a jury the master shall make his report as in nonjury actions. His findings upon the issues submitted to him are admissible as evidence of the matters found and may be read to the jury; provided that either party may attack such findings in the same manner and upon the same grounds as in nonjury cases, and also subject to the ruling of the court upon any objections in point of law which may be made to the report. If no objections are made to the findings of the master, then they may be introduced in evidence without submission to the trial court for approval.

(4) The effect of a master's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a master's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered.

(5) Before filing his report a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.

F.Special masters, commissioners and referees; substitution. Upon application of an interested party, and after notice if directed by the court, showing that a special master, commissioner or referee theretofore appointed is unable for any reason to continue in the performance of his prescribed duties, the court may appoint another as successor. Unless the court shall otherwise order, such successor shall take the proceedings as he finds them, and carry the same on to completion, with all powers of the original master. Without further or other notice, such successor may conduct any sale, notice of which may have been published in the name of such original master.

N.M. R. Civ. P. Dist. Ct. 1-053

For nonjury trial, see Rule 1-052 NMRA. For references in corporate receiverships, see Sections 53-16-17 and 53-16-18 NMSA 1978. For reference upon discharge of assignee for benefit of creditors, see Section 56-9-49 NMSA 1978. For reference in suits to determine water rights, see Section 72-4-17 NMSA 1978. Compiler's notes. - Paragraph A is deemed to have superseded 105-904, 105-905, C.S. 1929, relating to appointment of and hearings by referees. Paragraph B is deemed to have superseded 105-901, 105-902, C.S. 1929, relating to references by and without consent. Paragraph C is deemed to have superseded 105-911, C.S. 1929, relating to use of depositions before referee, 105-914, C.S. 1929, relating to referee's power to compel production of materials and examine parties on oath, 105-916, C.S. 1929, relating to referee's power to rule an objection and to submit findings, and 105-921, C.S. 1929, relating to notices and subpoenas of referees. Paragraph D(1) is deemed to have superseded 105-909, C.S. 1929, which was substantially the same. It is also deemed to have superseded 105-912, C.S. 1929, relating to joint meetings of referees, and 105-913, C.S. 1929, relating to the court's power to order the referee to make decisions and reports. Paragraphs D(2) and (3) are deemed to have superseded 105-910 and 105-915, C.S. 1929, relating to compelling attendance of witnesses and methods for submitting accounts. Paragraphs E(1) and (5) are deemed to have superseded 105-917 and 105-918, C.S. 1929, which were substantially the same. Paragraph E(2) is deemed to have superseded 105-919, C.S. 1929, relating to the effect to be given to referee's findings. Paragraph E(4) is deemed to have superseded 105-920, C.S. 1929, which was substantially the same. Paragraph F is deemed to have superseded 105-907, C.S. 1929, and former Trial Court Rule 46-106 a which were substantially the same. Duty to disclose underlying evidence for report. - In a divorce proceeding, where the court appointed a special master to review and resolve issues concerning the liquidation of the parties' family businesses and subsequently ordered the special master to complete the liquidation of the estate, the case was remanded to the district court to determine whether husband was entitled to receive the financial information and documentation that the special master obtained and used as support for the information, conclusions, and recommendations contained in the special master's reports. Muse v. Muse, 2009-NMCA-003, 145 N.M. 451, 200 P.3d 104. Rule is applicable to juvenile court (now children's court) proceedings. 1963-64 Op. Att'y Gen. No. 63-14 (opinion rendered under former law). Rule 11, R. Child. Ct. (see now Rule 10-111 ), limits inherent power of district judge to appoint a special master in children's court. State v. Doe, 1979-NMCA-126, 93 N.M. 621, 603 P.2d 731. Construction given corresponding federal rule is persuasive. Lopez v. Singh, 1949-NMSC-022, 53 N.M. 245, 205 P.2d 492. Appointment of special masters has been left entirely to discretion of district judge in civil cases. Schwartzman v. Schwartzman Packing Co., 1983-NMSC-010, 99 N.M. 436, 659 P.2d 888. Special masters are to be appointed when issues are complicated. State ex rel. Reynolds v. Niccum, 1985-NMSC-016, 102 N.M. 330, 695 P.2d 480. Special masters' findings are presumed to be correct; and when there is any testimony consistent with the findings, they must be treated as unassailable. State ex rel. Reynolds v. Niccum, 1985-NMSC-016, 102 N.M. 330, 695 P.2d 480. Party challenging validity of master's support award had duty to request record of testimony and evidence. State ex rel. Alleman v. Shoats, 1984-NMCA-072, 101 N.M. 512, 684 P.2d 1177. Appellate court reviews sufficiency of evidence supporting master's findings. - When an attack is made upon a trial court's findings, when that court has approved and adopted all of the findings and conclusions of a special master, an appellate court must first review the sufficiency of the evidence to support those findings made by the master. State ex rel. Reynolds v. Lewis, 1964-NMSC-095, 74 N.M. 442, 394 P.2d 593. Motion to vacate reference must be timely. - Where, after order of reference, the issue changes by reason of a stipulated decree so that only an issue of law is involved, the order of reference could have been vacated and a jury trial had, but where no ruling of the court is sought on such question until the evidence is taken and the report of the referee filed, the request is too late. E.M. Biggs Tie & Store Co. v. Arlington Land Co., 1919-NMSC-045, 25 N.M. 613, 186 P. 449 (decided under former law). Master subject to direction of trial court. - Special master is not obliged to follow all procedures authorized by this rule, but could properly be limited by trial court's directions. Gonzales v. Gonzales, 1973-NMSC-045, 85 N.M. 67, 509 P.2d 259. Parties to present testimony, evidence and viewpoints at first meeting. - Where court order refers parties to a master for determination of quiet title action, meeting between parties' lawyers and master held two months before court order is entered cannot be considered a first meeting within the ambit of Subdivision (d)(1) (see now Paragraph D(1)). Purpose of this requirement is to allow parties to present master with their testimony, evidence and viewpoints so that master can give his report to the court, and where no meeting is held within specified time limit, such opportunity is denied, regardless of what has preceded at other times between master and attorneys. Nolasco v. Nolasco, 1974-NMSC-078, 86 N.M. 725, 527 P.2d 320. Court authorized to order master to speed proceedings. - The court has the power to require the referee to proceed promptly with the hearings and make a report. E.M. Biggs Tie & Store Co. v. Arlington Land Co., 1919-NMSC-045, 25 N.M. 613, 186 P. 449 (decided under former law). Ensuring accurate vote count in corporate proxy fight. - The court did not abuse its discretion by determining that special master proceedings were necessary to ensure a well-regulated vote count in a corporate proxy fight and that the corporation should bear the costs of those proceedings. Pena v. Westland Dev. Co., 1988 -NMCA-052, 107 N.M. 560, 761 P.2d 438. Errors in report waived absent objections to trial court. - Errors complained of in a referee's report must be called to the attention of the trial court or they will be deemed waived. Neher v. Armijo, 1901-NMSC-015, 11 N.M. 67, 66 P. 517 (decided under former law). Referee's findings not unassailable. - A district court is well within its powers when it overturns the findings of a referee which are not unassailable. Bradford v. Armijo, 1922-NMSC-051, 28 N.M. 288, 210 P. 1070 (decided under former law). Review of special master's findings and conclusions. - The district court reviews a special master's findings to determine whether the findings are supported by substantial evidence. The district court may reject a special master's findings only if they are not supported by substantial evidence. The district court reviews a special master's conclusions of law de novo and exercises independent judgment without assigning special weight to the special master's conclusions of law. The review conducted by the Court of Appeals is the same as the review conducted by the district court and is applied regardless of whether the district court adopted or rejected the special master's findings. State N.M. ex rel. OSE v. Elephant Butte Irrigation Dist., 2013-NMCA-023, 296 P.3d 1217, cert. denied, 2013-NMCERT-001. Special master's findings were supported by substantial evidence. - Where the district court appointed a special master to try a dispute over ownership of a water right on the landowner's land and based on the testimony of the landowner and other witnesses that they had observed alfalfa growing on the land and on the testimony of expert witnesses for the landowner and the State Engineer that aerial photographs showed evidence of irrigation and cultivation of the land, the special master found that crops had been grown on the land, the special master's findings were supported by substantial evidence, were binding on the district court, and were sufficient to support the special master's conclusion of law that water was put to beneficial use of water on the land. State ex rel. OSE v. Elephant Butte Irrigation Dist., 2013-NMCA-023, 296 P.3d 1217, cert. denied, 2013-NMCERT-001. De novo review by district court. - The interpretation and construction that federal courts give Federal Rule of Civil Procedure 53(E)(2), as it relates to the special master's conclusions of law, is persuasive authority for New Mexico courts applying this rule: under federal law, a special master's conclusions of law carry no weight with the district court; rather, the court reviews a special master's conclusions of law de novo. Lozano v. GTE Lenkurt, Inc., 1996-NMCA-074, 122 N.M. 103, 920 P.2d 1057. Findings supported by substantial evidence not erroneous. - As used in Subdivision (e)(2) (see now Paragraph E(2)), clearly erroneous means findings not supported by substantial evidence, and findings are not erroneous where they are supported, if not by a preponderance, by substantial evidence. Lopez v. Singh, 1949-NMSC-022, 53 N.M. 245, 205 P.2d 492. Findings conclusive. - When supported by substantial evidence, the findings of a master are conclusive upon the trial court. Lopez v. Singh, 1949-NMSC-022, 53 N.M. 245, 205 P.2d 492. Absent clear error. - The findings of the special master should be accepted when they are supported by substantial evidence and are not clearly erroneous. Witt v. Skelly Oil Co., 1963-NMSC-033, 71 N.M. 411, 379 P.2d 61. Findings unassailable if based on any consistent testimony. - The master's findings are presumed to be correct and so far as they depend upon conflicting evidence, or upon the credibility of witnesses, or so far as there is any testimony consistent with the findings, they must be treated as unassailable. Witt v. Skelly Oil Co., 1963-NMSC-033, 71 N.M. 411, 379 P.2d 61. Conflicting evidence. - The findings of fact by a master, depending upon the weight of conflicting testimony, are presumptively correct, and are not to be disturbed, unless it clearly appears that there has been error or mistake on his part. De Cordova v. Korte, 1895-NMSC-005, 7 N.M. 678, 41 P. 526, aff'd, 171 U.S. 638, 19 S. Ct. 35, 43 L. Ed. 315 (1898) (decided under former law). Veracity of witness. - A master who has heard the witnesses testify and observed their demeanor is in a better position than the trial court to pass upon their veracity. Lopez v. Singh, 1949-NMSC-022, 53 N.M. 245, 205 P.2d 492. "Clearly erroneous" is defined as finding unsupported by substantial evidence. Witt v. Skelly Oil Co., 1963-NMSC-033, 71 N.M. 411, 379 P.2d 61. "Clearly erroneous" standard requires. - The trial court may set aside findings when clearly erroneous. In considering the question the word "clearly" must not be overlooked, and findings will not be set aside merely because the record tends to show that they are not supported by the weight of the evidence, for it is only where there is a total lack of substantial evidence to support the findings that the court is warranted in rejecting the report of the referee. Witt v. Skelly Oil Co., 1963-NMSC-033, 71 N.M. 411, 379 P.2d 61. Total absence of supporting substantial evidence to reject findings. - Only where there is a total lack of substantial evidence to support findings is the court warranted in rejecting the report of a referee. Lopez v. Singh, 1949-NMSC-022, 53 N.M. 245, 205 P.2d 492 (1949). A finding of fact by referee on evidence is equivalent to the special verdict of a jury and cannot be disturbed unless such evidence is manifestly insufficient to sustain it. Pueblo of Nambe v. Romero, 1900-NMSC-008, 10 N.M. 58, 61 P. 122 (decided under former law). Application of improper standard by master deemed clear error. - Findings are clearly erroneous if the reviewing court on the entire evidence has the definite and firm conviction that a mistake has been committed as to the application of the proper standard by the master. When a master's findings are clearly erroneous they are reversible. Martin v. Foster, 1970-NMSC-084, 81 N.M. 583, 470 P.2d 304. Notice and opportunity to object required before adoption of findings. - Where special master's report and final judgment are entered the same day, the trial court commits error by not giving opposing counsel notice and allowing him time to submit proposed findings and conclusion. Barelas Community Ditch Corp. v. City of Albuquerque, 1957-NMSC-044, 63 N.M. 25, 312 P.2d 549. Am. Jur. 2d, A.L.R. and C.J.S. references. - 27A Am. Jur. 2d Equity §§226 to 229, 231 to 233; 66 Am. Jur. 2d References §§3 to 14, 17 to 37. Power of referee to punish for contempt, 8 A.L.R. 1575, 54 A.L.R. 326, 73 A.L.R. 1185. What amounts to nonsuit within contemplation of statute extending time for new action in case of nonsuit, 86 A.L.R. 1048. Voluntary dismissal or nonsuit, right of plaintiff to take, after submission of case to referee, 89 A.L.R. 99, 126 A.L.R. 284. Counterclaim or defense setting up facts involving examination of long account as ground for compulsory reference where complaint alleges nonreferable cause of action, 102 A.L.R. 1062. Voluntary dismissal where case has been submitted to referee, 126 A.L.R. 302. Statute providing for reference without consent of the parties in classes of cases enumerated as excluding reference in other cases, 126 A.L.R. 314. Relief from stipulations, 161 A.L.R. 1161. Appealability of order with respect to reference, 75 A.L.R.2d 1007. Availability of mandamus or prohibition to review order of reference to master or auditor, 76 A.L.R.2d 1120. Propriety of reference in connection with fixing amount of alimony, 85 A.L.R.2d 801. Amount of master's fee in divorce proceedings, 89 A.L.R.2d 377. Bankruptcy, right of creditor who has not filed timely petition for review of referee's order to participate in appeal secured by another creditor, 22 A.L.R.3d 914. Submission to referee as "final submission," within statute permitting plaintiff to take voluntary dismissal without prejudice before final submission, 31 A.L.R.3d 449. Power of successor or substituted master or referee to render decision or enter judgment on testimony heard by predecessor, 70 A.L.R.3d 1079. Criminal record as affecting applicant's moral character for purposes of admission to the bar, 88 A.L.R.3d 192. Referee's failure to file report within time specified by statute, court order, or stipulation as terminating reference, 71 A.L.R.4th 889. What are "exceptional conditions" justifying reference under Rule of Civil Procedure 53(b), 1 A.L.R. Fed. 922. 76 C.J.S. References § 2 et seq.