Austin Explosives Company, Inc. v. Eanes Independent School District, Acting in Its Own Behalf and in Behalf of the Travis County Education District, and Travis County Water Control and Improvement District No. 10

• Court: Court of Appeals of Texas
• Decided: September 21, 1994
• Docket: 03-93-00320-CV
• Status: Published

Opinion

AUSTIN EXPOL V. EISD IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



NO. 3-93-320-CV

AUSTIN EXPLOSIVES COMPANY, INC.,

APPELLANT

vs.

EANES INDEPENDENT SCHOOL DISTRICT, ACTING IN ITS OWN BEHALF AND IN BEHALF OF THE TRAVIS COUNTY EDUCATION DISTRICT, AND TRAVIS COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 10,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 92-13300, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

Eanes Independent School District ("EISD"), appellee, acting on its own behalf and on behalf of two other taxing authorities, brought suit against Austin Explosives Company, Inc., appellant, to collect delinquent taxes. Based on the report of a master in chancery, the district court rendered judgment in favor of EISD. In a single point of error, Austin Explosives challenges the district court's appointment of the master in chancery. We will affirm the district court's judgment.

BACKGROUND

Austin Explosives has its principal place of business in Austin, Texas. On September 16, 1992, EISD filed suit on its own behalf and on behalf of the Travis County Education District and Travis County Water District #10 seeking delinquent property taxes from Austin Explosives. The district court referred the case to a master in chancery, as it is permitted to do under section 33.71 of the Texas Tax Code. Tex. Tax Code Ann. § 33.71(a) (West 1992). The master in chancery conducted a trial and recommended that EISD be awarded the full amount it sought. The district court followed this recommendation and rendered judgment in favor of EISD.

DISCUSSION

The Tax Code provides that a district court "may, in delinquent tax suits, for good cause appoint a master in chancery for each case as desired." Tax. Code § 33.71(a). In its sole point of error, Austin Explosives asserts that the district court erred by appointing a master in chancery without making a finding of good cause for such an appointment. We conclude that Austin Explosives waived this point of error.

There is no indication in the record that Austin Explosives made any objection to the appointment of the master in chancery prior to this appeal. The record does indicate that counsel for Austin Explosives appeared at the trial before the master and announced, without objection or reservation, that Austin Explosives was "ready to proceed to trial." Austin Explosives failed to make a timely objection as required by Texas Rule of Appellate Procedure 52(a), and thereby waived its right to object to the appointment now.

Austin Explosives complains that it was never provided with an opportunity to be heard on the issue of good cause. Under Rule 52(a), however, it was not the district court's responsibility to provide this opportunity on its own initiative. Rather, it was incumbent upon Austin Explosives to assert its rights and object to the master's appointment.

Our decision in this case is in accordance with the court's decision in Owens-Corning Fiberglas Corp. v. Caldwell, 830 S.W.2d 622 (Tex. App.Houston [1st Dist.] 1991, orig. proceeding). The Caldwell court, addressing the appointment of a master in chancery under Texas Rule of Civil Procedure 171, concluded that "a party objecting to a master's appointment must make an objection not within some arbitrary time period, but before it has taken part in proceedings before the master or before the parties, the master, and the court have acted in reliance on the master's appointment." Id. at 625. In this case, we need not reach the issue of precisely when a party must object to the appointment of a master, because Austin Explosives made no objection whatsoever. Clearly, the issue may not be raised for the first time on appeal.

We overrule appellant's sole point of error and affirm the judgment of the district court.

J. Woodfin Jones, Justice

Before Chief Justice Carroll, Justices Jones and Kidd

Affirmed

Filed: September 21, 1994

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