R.K. Dhingra, Trustee v. Aldine Independent School District ( 2010 )

Opinion issued November 18, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-01054-CV

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R.K. Dhingra, Appellant

V.

ALDINE INDEPENDENT SCHOOL DISTRICT, HARRIS COUNTY, HARRIS COUNTY DEPARTMENT OF EDUCATION, PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY, HARRIS COUNTY FLOOD CONTROL DISTRICT, LONE STAR COLLEGE SYSTEM DISTRICT, HARRIS COUNTY EMERGENCY SERVICE DISTRICT #20, HARRIS COUNTY EMERGENCY SERVICE DISTRICT #1, and NORTHWEST PARK MUNICIPAL UTILITY DISTRICT, Appellees

On Appeal from the 113th Judicial District Court

Harris County, Texas

Trial Court Case No. 2006-47419

MEMORANDUM OPINION

          Appellant, R.K. Dhingra, appeals the trial court’s judgment for back taxes rendered in favor of appellees, Aldine Independent School District, Harris County, Harris County Department of Education, Port of Houston Authority of Harris County, Harris County Flood Control District, Lone Star College System District, Harris County Emergency Service District #20, Harris County Emergency Service District #1, and Northwest Park Municipal Utility District (collectively, the “Taxing Units”).  In three issues, Dhingra contends the tax master erred by recommending the Taxing Units’ motion for summary judgment be granted and the trial court erred by failing to conduct a hearing de novo on the appeal of the tax master’s recommendation.  In a fourth issue, Dhingra asserts that we should render judgment in his favor because the Taxing Units presented no evidence to the trial court.  The Taxing Units concede the trial court did not conduct a hearing de novo and that remand for a de novo hearing is appropriate.  We conclude that the case should be remanded for trial de novo.  We reverse and remand.

Background

          The Taxing Units filed this action against Dhingra alleging that Dhingra owed past-due property taxes and other charges.  The Taxing Units filed a joint motion for summary judgment on May 29, 2009, which was set for hearing on June 19, 2009, only 21 days from the date of filing. The Taxing Units represented in their certificate of service that the motion was “forwarded in compliance with Rule 21a,” which under the circumstances of this case required a minimum of 24 days notice.  Before the date of the hearing, Dhingra filed a third-party petition against three parties.  

          On June 19, 2009 the tax master recommended that the Taxing Units’ motion for summary judgment be granted and issued a report to the district court accordingly.  Dhingra filed a timely notice of appeal of the tax master’s report on June 25, 2009, entitling him to a hearing de novo.  However, the trial court did not hold the hearing de novo, but signed an order confirming the tax master’s report and granting the Taxing Units’ motion for summary judgment.  In its final judgment, the trial court also dismissed Dhingra’s claims against the third-party defendants.

Law Concerning Appeal of Tax Master’s Recommendation

          The Tax Code provides that a trial court may refer a case for delinquent taxes to a master in chancery.  Tex. Tax Code Ann. § 33.71(a) (Vernon 2008).  The tax master is authorized to conduct evidentiary proceedings and recommend a final judgment.  Id. §§ 33.71(b), 33.72 (Vernon 2008); City of Houston v. Alief Indep. Sch. Dist., 117 S.W.3d 913, 915 (Tex. App.—Houston [14th Dist.] 2003, no pet.).  Any party to the delinquent tax suit is entitled to a hearing by the judge of the referring court, if within ten days after the tax master gives notice of the recommendation, an appeal of the tax master’s report is filed with the referring court.  Tex. Tax Code Ann. § 33.74(a) (Vernon 2008).  “On appeal to the referring court, the parties may present witnesses as in a hearing de novo only on the issues raised in the appeal.”  Id. § 33.74(d).  The hearing de novo is mandatory.  Id. § 33.74(g); Alief Indep. Sch. Dist., 117 S.W.3d at 915. 

Analysis

          In his first issue, Dhingra contends that the master erred by recommending the summary judgment be granted because the notice of the hearing was not timely served.  The Taxing Units concede this point.  We, therefore, sustain Dhingra’s first issue.

          In his second issue, Dhingra contends that the trial court erred by failing to conduct a hearing de novo.  The Taxing Units concede that the trial court did not hold a hearing de novo and the trial court’s judgment should be reversed.  We, therefore, sustain Dhingra’s second issue.

          In his third issue, Dhingra contends that this Court should render judgment in his favor.  The Taxing Units respond that remand is appropriate.  In support of his position that we should render judgment in his favor, Dhingra contends that the Taxing Units did not present any evidence in support of their claims for past-due taxes.  However, as stated above, there was no hearing.  Thus, there was no opportunity to present evidence. Dhingra’s complaint on appeal is that the trial court did not conduct a hearing de novo.  Therefore, the remedy is to grant him that hearing, and remand is appropriate.  See Alief Indep. Sch. Dist., 117 S.W.3d at 915 (remanding case for hearing de novo where trial court rendered judgment without conducting hearing de novo); Godwin v. Aldine Indep. Sch. Dist., 961 S.W.2d 219, 221 (Tex. App.—Houston [1st Dist.] 1997, pet. denied) (remanding case for hearing de novo where trial court failed to conduct hearing de novo before dismissing case).

          In his fourth issue, Dhingra contends that the trial court erred by “nonsuiting” the third-party defendants.  The trial court’s judgment, which did not grant relief for or against the third-party defendants, states, “IT IS ORDERED that all parties heretofore named in any pleadings filed by any party and not included in this judgment . . . are hereby dismissed without prejudice to the right to refile their claims.”  Because we have already held the trial court’s judgment must be reversed, we do not address this issue.

Conclusion

          We reverse the trial court’s judgment and remand this cause for the trial court to conduct a hearing de novo.

                                                                   Elsa Alcala

                                                                   Justice

Panel consists of Justices Jennings, Alcala, and Higley.