Rule 53. Referees. - North Carolina Statutes

Rule 53. Referees.

(a)        Kinds of reference.–

(1)        By Consent. – Any orall of the issues in an action may be referred upon the written consent of theparties except in actions to annul a marriage, actions for divorce, actions fordivorce from bed and board, actions for alimony without the divorce or actionsin which a ground of annulment or divorce is in issue.

(2)        Compulsory. – Wherethe parties do not consent to a reference, the court may, upon the applicationof any party or on its own motion, order a reference in the following cases:

a.         Where the trial ofan issue requires the examination of a long or complicated account; in whichcase the referee may be directed to hear and decide the whole issue, or toreport upon any specific question of fact involved therein.

b.         Where the taking ofan account is necessary for the information of the court before judgment, orfor carrying a judgment or order into effect.

c.         Where the caseinvolves a complicated question of boundary, or requires a personal view of thepremises.

d.         Where a question offact arises outside the pleadings, upon motion or otherwise, at any stage ofthe action.

(b)        Jury trial. –

(1)        Where the referenceis by consent, the parties waive the right to have any of the issues within thescope of the reference passed on by a jury.

(2)        A compulsoryreference does not deprive any party of his right to a trial by jury, whichright he may preserve by

a.         Objecting to theorder of compulsory reference at the time it is made, and

b.         By filing specificexceptions to particular findings of fact made by the referee within 30 daysafter the referee files his report with the clerk of the court in which theaction is pending, and

c.         By formulatingappropriate issues based upon the exceptions taken and demanding a jury trialupon such issues. Such issues shall be tendered at the same time the exceptionsto the referee's report are filed. If there is a trial by jury upon any issuereferred, the trial shall be only upon the evidence taken before the referee.

(c)        Appointment. – Theparties may agree in writing upon one or more persons not exceeding three, anda reference shall be ordered  to such person or persons in appropriate cases.If the parties do not  agree, the court shall appoint one or more referees, notexceeding three, but no person shall be appointed referee to whom all partiesin the action object.

(d)        Compensation. – Thecompensation to be allowed a referee shall be fixed by the court and charged inthe bill of costs. After appointment of a referee, the court may from time totime order advancements by one or more of the parties of sums to be applied tothe referee's compensation. Such advancements may be apportioned between theparties in such manner as the court sees fit. Advancements so made shall betaken into account in the final fixing of costs and such adjustments made asthe court then deems proper.

(e)        Powers. – The orderof reference to the referee may specify or limit his powers and may direct himto report only upon particular issues or to do or perform particular acts or toreceive and report evidence only and may fix the time and place for beginningand closing the hearings and for the filing of the referee's report. Subject tothe specifications and limitations stated in the order, every referee has powerto administer oaths in any proceeding before him, and has generally the powervested in a referee by law. The referee shall have the same power to grantadjournments and to allow amendments to pleadings and to the summons as thejudge and upon the same terms and with like effect. The referee shall have thesame power as the judge to preserve order and punish all violations thereof, tocompel the attendance of witnesses before him by attachment, and to punish themas for contempt for nonattendance or for refusal to be sworn or to testify. Theparties may procure the attendance of witnesses before the referee by theissuance and service of subpoenas as provided in Rule 45.

(f)         Proceedings. –

(1)        Meetings. – When areference is made, the clerk shall forthwith furnish the referee with a copy ofthe order of reference. Upon receipt thereof unless the order of referenceotherwise provides, the referee shall forthwith set a time and place for thefirst meeting of the parties or their attorneys to be held within 20 days afterthe date of the order of reference and shall notify the parties or theirattorneys. It is the duty of the referee to proceed with all reasonablediligence. Any party, on notice to all other parties and the referee, may applyto the court for an order requiring the referee to expedite the proceedings andto make his report. If a party fails to appear at the time and place appointed,the referee may proceed ex parte, or, in his discretion, may adjourn theproceedings to a future day, giving notice to the absent party of theadjournment.

(2)        Statement ofAccounts. – When matters of accounting are in issue before the referee, he mayprescribe the form in which the accounts shall be submitted and in any propercase may require or receive in evidence a statement by a certified publicaccountant or other qualified accountant who is called as a witness. Uponobjection of a party to any of the items thus submitted or upon a showing thatthe form of statement is insufficient, the referee may require a different formof statement to be furnished, or the accounts of specific items thereof to beproved by oral examination of the accounting parties or upon writteninterrogatories or in such other manner as he directs.

(3)        Testimony Reduced toWriting. – The testimony of all witnesses must be reduced to writing by thereferee, or by someone acting under his direction and shall be filed in the cause and constitute a part of the record.

(g)        Report. –

(1)        Contents and Filing.– The referee shall prepare a report upon the matters submitted to him by theorder of reference and shall include therein his decision on all matters sosubmitted. If required to make findings of fact and conclusions of law, heshall set them forth separately in the report. He shall file the report withthe clerk of the court in which the action is pending and unless otherwisedirected by the order of reference, shall file with it a transcript of theproceedings and of the evidence and the original exhibits. Before filing hisreport a referee may submit a draft thereof to counsel for all parties for thepurpose of receiving their suggestions. The clerk shall forthwith mail to allparties notice of the filing.

(2)        Exceptions andReview. – All or any part of the report may be excepted to by any party within30 days from the filing of the report. Thereafter, and upon 10 days' notice tothe other parties, any party may apply to the judge for action on the report.The judge after hearing may adopt, modify or reject the report in whole or inpart, render judgment, or may remand the proceedings to the referee withinstructions. No judgment may be rendered on any reference except by the judge.(1967, c. 954, s. 1; 1969, c. 895, s. 13.)