Affirmed and Majority and Concurring Opinions filed October 10, 2006

Affirmed and Majority and Concurring Opinions filed October 10, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00983-CV

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RONNIE VEE HEBISON AND DAN HENNIGAN, Appellants

V.

CLEAR CREEK INDEPENDENT SCHOOL DISTRICT, HARRIS COUNTY, HARRIS COUNTY EDUCATION DEPARTMENT, PORT OF HOUSTON OF HARRIS COUNTY AUTHORITY, HARRIS COUNTY FLOOD CONTROL DISTRICT, HARRIS COUNTY HOSPITAL DISTRICT, AND CITY OF NASSAU BAY, Appellees

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 02-33289

C O N C U R R I N G   O P I N I O N

The court correctly overrules the appellants= legal-sufficiency issues based on the absence of a record from the July 15, 2004 bench trial (the ABench Trial@).  While the majority=s judgment is correct, much of its analysis is unnecessary to the disposition of this appeal.

The parties appealed some, but not all, of the issues that were the subject of the master=s report.  As to the appealed issues, the trial court had a duty to conduct a de novo hearing.  The scope of the appeals was limited to the issues specified in the notices of appeal, and the trial court had no obligation to address the issues that were not appealed. Nonetheless, the trial court still had the discretion to hear evidence regarding the unappealed issues and to render a different judgment regarding these issues than that recommended by the master. 

The trial court sent notice to all parties, including the appellants, that the entire case was set for trial for the two-week period beginning July 12, 2004.  The notice did not state that the hearing was limited to the issues specified in the appeals from the master=s report.  By not seeing to it that a record was made of the Bench Trial, the appellants subjected themselves to the presumption that the proceedings and evidence from the Bench Trial are relevant to the appellants= issues and support the trial court=s judgment.  See, e.g., Hiroms v. Scheffey, 76 S.W.3d 486, 489 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (holding appellate court could not address merits of alleged charge error because appellate record did not contain complete record of trial proceedings).  Accordingly, the court correctly affirms the trial court=s judgment based on the absence of a record from the Bench Trial.

The majority indicates in several places that appellant Dan Hennigan=s notice of appeal was sufficient to appeal all of the issues encompassed by the master=s report.  See ante at pp. 2, 4, 6.  Though Hennigan=s notice of appeal may have been sufficient to appeal all of the master=s recommendations as to Hennigan, it was not sufficient to require the trial court to hear an appeal regarding appellant Ronnie Lee Hebison=s liability. Nonetheless, this court need not address the issue of the scope of the appeals by Hennigan and Clear Creek Independent School District because, without a record of the Bench Trial, we must presume the omitted record supports the trial court=s judgment.

Appellants Hebison and Hennigan (hereinafter collectively the ATaxpayers@) argue that, even though no record was made of the Bench Trial, they still may assert legal-sufficiency issues challenging the trial court=s September 14, 2004 judgment^[1] following the Bench Trial.  The Taxpayers claim that this court should evaluate these sufficiency challenges based on the reporter=s record from the master=s hearing on February 13, 2004 because the issues they raise were not within the scope of the appeals and therefore could not have been addressed during the Bench Trial.  In support of this argument, the Taxpayers cite section 33.74 of the Tax Code and correctly note that (1) appeals from the master=s report are limited to the issues specified in the notices of appeal and (2) the notices of appeal did not challenge every issue that was before the master.  See Tex. Tax Code ' 33.74 (Vernon 2001).  In some instances, no party may appeal from the master=s report.  In other cases, the parties may challenge every issue addressed in the master=s report in their notices of appeal.  The instant case involves a different situationCthe parties appealed some, but not all, of the issues before the master. 

Section 33.74, however, does not limit the referring court=s discretion to hear evidence regarding the unappealed issues and to render a different judgment regarding these issues than that recommended by the master.  See id; see also Ex parte Skero, 875 S.W.2d 44, 46 (Tex. App.CHouston [1st Dist.] 1994, orig. proceeding).  As the majority notes, the associate-judge statute in the Family Code is substantially similar to the statute at issue.  See ante at p.5.  In a case dealing with the predecessor statute to the associate-judge statute currently found in the Family Code, the First Court of Appeals held that the referring court had discretion to accept or reject the master=s recommendations and to hold a hearing as to whether it would do so.  See Ex parte Skero, 875 S.W.2d at 45B46.  The Skero court held that, because the trial court, after holding a hearing, rendered a judgment different from the master=s recommendations, the appellate court could not sustain any challenge to that judgment without a record from the trial court hearing.  See id. at 46.  Because the appellate record in Skero did not contain a record of the hearing before the trial court, the Skero court held that it could not sustain the challenges asserted against that judgment.  See id. 

The Skero court=s analysis is persuasive.  While the trial court in the instant case had an obligation to conduct a de novo hearing and to rule on whatever issues were within the scope of the appeals, it also had the discretion to hear evidence regarding the unappealed issues and to render a different judgment regarding these issues than that recommended by the master.  See id. 

Though our record does not reflect what occurred at the Bench Trial, it does contain the notices of the trial setting sent to the Taxpayers.  These notices do not refer to the appeals from the master=s report; rather, they give notice that the entire case is set for trial.  In the absence of a reporter=s record from the Bench Trial, this court must presume that the omitted proceedings are relevant to and support the trial court=s judgment.  See Hiroms, 76 S.W.3d at 489.  Therefore, this court must presume that (1) the trial court exercised its discretion to hear evidence regarding all of the issues, whether appealed or not, and (2) the trial court heard evidence that is legally sufficient to support its judgment.  See id. 

Despite receiving notice of the trial setting, the Taxpayers did not take the necessary steps to see that a record was made of the Bench Trial.  Accordingly, this court must apply the common-law presumption for cases in which there is no record of the trial, and overrule the Taxpayers= issues.  See Ex parte Skero, 875 S.W.2d at 45B46.

The court correctly concludes that the trial court had the ability to hear evidence beyond the scope of the appeals and that a referring court can depart from the master=s recommendations, even recommendations that are not appealed to the referring court.  See ante at p. 9.  Based on these conclusions, it is unnecessary to address several of the issues discussed in the majority opinion.^[2] Because the court reaches the right result, for the reasons noted, I respectfully concur in the court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Majority and Concurring Opinions filed October 10, 2006.

Panel consists of Justices Hudson, Frost, and Seymore. (Hudson, J., majority)

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^[1]  The majority correctly concludes that the reference in the trial court=s judgment to the date of the master=s hearing is a clerical error.

^[2]  The court need not address the following issues:

$ Do the issues specified in the notices of appeal cover all of the issues that were before the master? See ante at pp. 2,4,6.

$ Does Hennigan=s notice of appeal require the trial court to conduct a full trial de novo of all issues?  See ante at p. 4, 9.

$ May a party appeal some, but not all, of the issues contained in a master=s report and still appeal the unchallenged issues to the court of appeals after the trial court renders final judgment?  See ante at p. 4.

$ In a case in which a party appeals from an associate judge=s recommendations in a family law case, may the referring court hear evidence only as to the issues specified in the appeal?  See ante at p. 5.

$ Will an appellate court ever need to review the reporter=s record from a master=s hearing in cases in which a party challenges the master=s report by appeal to the referring court?  See ante at p. 5.

$ By challenging some but not all of the issues by appeal to the referring court, does a party waive its right to appeal the unchallenged issues to the court of appeals?  See ante at p. 6.

$ What does Ashall@ mean as used in section 33.74(c)?  See ante at pp. 6B7.

$ What is the legislative history regarding the master statute in the Family Code?  See ante at pp. 8B9.