law-special-master-appointment | TRCP 171

Appointing a Special Master

In his sixth issue, Hourani contends that the trial court erred by appointing a special master without "good
cause." Specifically, Hourani contends that, although the trial court stated in its order that it was acting in
accordance with Rule 171, it failed to recite in its order "any explanation as to how this case fits the criterion of
Rule 171." Hourani directs us to Simpson v. Canales for support. 806 S.W.2d 802, 810 (Tex. 1991).
Hourani v. Katzen (Tex.App.- Houston [1st Dist.] Nov. 25, 2009)(Higley)
suit for declaratory relief, dispute over restrictive covenants in a residential subdivision, defense of waiver,
estoppel, UDJA attorney's fees, appointment of master in chancery)
Justice Laura Carter Higley
Before Justices Jennings, Higley and Sharp
01-07-00971-CV  Monzer Hourani and Carlton Park Owner's Association v. Jonathan Katzen
Appeal from 190th District Court of Harris County
Trial Court Judge: Hon.
Jennifer Walker Elrod  

The appointment of a master lies within the sound discretion of the trial court and should not be reversed
except for a clear abuse of that discretion. Id. at 811. Rule of Civil Procedure 171, which governs the
appointment of a special master, provides, in relevant part:

The court may, in exceptional cases, for good cause appoint a master in chancery, . . . who shall perform all of
the duties required of him by the court, and shall be under orders of the court, and have such power as the
master in chancery has in a court of equity.

Tex. R. Civ. P. 171 (emphasis added). The "exceptional case" and "good cause" standards are "not
susceptible [to] precise definition." Simpson, 806 S.W.2d at 811. Although the trial court may consider the
complexity of the case, the rule's standards may not be satisfied merely by showing that a case is
time-consuming or complicated. Id.

In Simpson, the trial court appointed a master based on the complexity of the toxic-tort case before it, which
involved one plaintiff and 18 defendants. Id. Over the course of 10 months, 8 discovery motions were filed, but
the trial court did not hear any of the pending discovery disputes before appointing the master. Id. The
supreme court concluded that the appointment of the master constituted a clear abuse of discretion by the trial
court because, although the case may have been more complicated than others on the trial court's docket, it
could "hardly be said to be exceptional, at least at this point in its development." Id. The supreme court
explained that "[e]ven if this were an exceptional case, based upon the allegations in the pleadings, the
number of parties, or the amount of activity it generated, we would be reluctant to approve the trial court's
delegation of the supervision of all discovery to be conducted in the case to the master." Id. at 811-12.

Here, Katzen moved for the appointment of a special master to assist the trial court with the complex issues of
soil stability and lake retention. The trial court asked the parties to submit the names of proposed engineering
experts to serve as master. Urban, Duganier, and Cruce proposed that Eric C. Green, P. E., be appointed. The
trial court's order states, "In accordance with Rule 171 and the parties' recommendations, the Court appoints
Eric C. Green, P.E., as special master on the engineering issues in this case." In its final judgment, the trial
court states that it found that good cause existed to appoint a professional engineer as a Master in Chancery
pursuant to Tex. R. Civ. P. 171. The Court, by order dated April 20, 2006, appointed Eric C. Green, P.E. as
Master to provide a report recommending the engineering design for the access to the property.

Unlike Simpson, the record before us supports the trial court's conclusion that this is an "exceptional case" and
that "good cause" existed for supervision by a master. See Simpson, 806 S.W.2d at 811-12 (reviewing record
for required support). The highly technical nature of the case, which involves the feasibility of constructing a
driveway or bridge along the edge of a lake without damaging the lake, and the assistance which may be
provided to the trial court by a special master with engineering training and expertise constitutes a sufficiently
exceptional condition to justify the present appointment. See Transamerican Natural Gas Corp. v. Mancias,
877 S.W.2d 840, 843 (Tex. App.--Corpus Christi 1994, orig. proceeding); see also Texas Bank and Trust Co.
v. Moore, 595 S.W.2d 502, 510-11 (Tex. 1980).

We conclude that the trial court did not abuse its discretion by appointing a master.

Accordingly, Hourani's sixth issue is overruled.