
NO. 07-06-0444-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 25, 2007

______________________________


IN THE INTEREST OF R.C. AND R.C.C., JR., MINOR CHILDREN


_________________________________

FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2004-527,727; HONORABLE KEVIN C. HART, ASSOCIATE JUDGE PRESIDING 

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


OPINION


	Chetra Fulcher brings this accelerated appeal of the trial court's order terminating
her parental rights and appointing the Texas Department of Family and Protective Services
("DFPS") as permanent managing conservator.  In three issues, Fulcher contends (1) the
trial court erred when it determined the appeal was frivolous, (2) she was denied effective
assistance of counsel, and (3) the evidence supporting the termination was not clear and
convincing.  For reasons that follow, we affirm. 
	The appeal of a final order rendered under Subchapter E of Chapter 263 of the
Texas Family Code is governed by the rules of the Supreme Court for accelerated appeals 
in civil cases and by the procedures set forth in that chapter. (1)  A final order terminating the
relationship between a parent and child and appointing DFPS as permanent managing
conservator is an order rendered under Subchapter E of Chapter 263.  Therefore, the
accelerated appeal of the order in this case is governed by the procedures set forth in
Chapter 263.
	Chapter 263 of the Texas Family Code requires a party intending to appeal a final
order rendered under Subchapter E to file with the trial court, no later than fifteen days
after the final order is signed, a statement of points on which the party intends to appeal. (2) 
The statement of points may be filed separately or it may be combined with a motion for
new trial. (3)  The failure to timely file a statement of points does not deprive the appellate
court of jurisdiction over the appeal; however, it is necessary to preserve a point for review
on appeal. (4)
 
	In 2005, in response to what it perceived as judicial activism, the Texas Legislature
enacted § 263.405(i), effective for appeals filed after September 1, 2005, which provides:
	The appellate court may not consider any issue that was not specifically
presented to the trial court in a timely filed statement of the points on which
the party intends to appeal or in a statement combined with a motion for new
trial.  For purposes of this subsection, a claim that a judicial decision is
contrary to the evidence or that the evidence is factually or legally insufficient
is not sufficiently specific to preserve an issue for appeal.
While several of our sister courts have questioned the practical application and
constitutional validity of this statute, (5) particularly in the context of a claim raising the issue
of ineffective assistance of court-appointed trial counsel, every appellate court called upon
to address this question has agreed that the clear language of the statute prohibits
appellate courts from considering points not properly preserved by the timely filing of a
statement of points. (6)   We recognize the application of this statutory limitation to the right
of appeal can have harsh results.  Parties seeking review of claims pertaining to the
ineffective assistance of court-appointed trial counsel may find it particularly difficult to
preserve those points.  We recognize that in such situations a complaining party, unlike 
her criminal counterpart, has no recourse through a statutory writ of habeas corpus. (7)
Nevertheless, we do not believe that it is an appropriate function of this Court to create a
means of recourse by fabricating an interpretation that would expand the legislatively
created procedures for perfection of a statutorily-created right of appeal.  To do so would
amount to blatant legislating from the bench. (8) 
	The final order in this case was signed on October 6, 2006.  Fulcher's trial counsel
filed a motion for new trial, which purports to contain a combined statement of points, on
November 6, 2006.  Because Fulcher did not timely file her statement of points, she did not
preserve those points for appeal.  Accordingly, we cannot consider any of the issues
Fulcher has raised, including the allegation that her counsel was ineffective by failing to
timely file a statement of points on appeal raising ineffective assistance of counsel.  We
affirm the trial court's order.

							Patrick A. Pirtle
							      Justice

Quinn, C.J., concurring.
1. Tex. Fam. Code Ann. § 263.405(a)(Vernon Supp. 2006).
2. § 263.405(b).
3. Id.
4. Coey v. Tex. Dep't. of Family and Protective Services, No. 03-05-0679-CV, 2006
Tex. App. LEXIS 4325 (Tex.App.-Austin May19, 2006, no pet.)(not designated for
publication); In re S.E., 203 S.W.3d 14, 15 (Tex.App.-San Antonio, no pet.)

5. In re R.M.R., No. 13-06-0351-CV, 2007 Tex. App. LEXIS 2181, *3
(Tex.App.-Corpus Christi March 22, 2007, no pet.);  Pool v. Tex. Dep't. of Family &
Protective Services, No. 01-05-1093-CV, 2007 Tex. App. LEXIS 1576, *7
(Tex.App.-Houston [1st Dist.] March 1, 2007, no pet.); In re D.A.R., 201 S.W.3d 229, 231
(Tex.App.-Fort Worth 2006, no pet.); In re E.A.R., 201 S.W.3d 813, 814 (Tex.App.-Waco
2006, no pet.)(Vance, J., concurring) 
6. In re J.W.H., No. 10-06-0083-CV, 2007 Tex. App. LEXIS 2340 (Tex.App.-Waco,
March 21, 2007, no pet.); In re J.F.R., No. 09-06-0115-CV, Tex. App. LEXIS 1727
(Tex.App.-Beaumont March 8, 2007, no pet.);  In re J.H., No. 12-06-0002-CV, 2007 Tex.
App. LEXIS 407 (Tex.App.-Tyler January 24, 2007, no pet.)(not designated for
publication);  In re K.R., No. 09-06-0056-CV, 2007 Tex. App. LEXIS 300
(Tex.App.-Beaumont Jan. 18, 2007, no pet.h.);  In re C.B.M. No. 08-06-0136-CV, 2006
Tex. App. LEXIS 10716 (Tex.App.-El Paso Dec. 14, 2006, no pet.); In re H.H.H., No. 06-06-0093-CV (Tex.App.-Texarkana October 4, 2006, no pet.)(not designated for
publication); Coey v. Tex. Dep't of Family & Protective Services, No. 03-05-0679-CV, 2006
Tex. App. LEXIS 4325 (Tex.App.-Austin May 19, 2006, no pet.)(not designated for
publication);  In re S.E., 203 S.W.3d 14 (Tex.App.-San Antonio 2006, no pet.); In re C.M.,
208 S.W.3d 89 (Tex.App.-Houston [14th Dist.], 2006, no pet.);  see also In re R.M.R., No.
13-06-351-CV, 2007 Tex. App. LEXIS 2181, *3 (Tex.App.-Corpus Christi March 22, 2007,
no pet.);  Pool v. Tex. Dep't. of Family & Protective Services, No. 01-05-1093-CV, 2007
Tex. App. LEXIS 1576, *7 (Tex.App.-Houston [1st Dist.] March 1, 2007, no pet.); In re
D.A.R., 201 S.W.3d 229, 231 (Tex.App.-Fort Worth 2006, no pet.); In re E.A.R., E.A.R.,
and I.D.A., 201 S.W.3d 813, 814 (Tex.App.-Waco 2006 no pet.)(Vance, J., concurring).
7. In so ruling, we express no opinion as to whether an aggrieved party would be
entitled to common law relief through a writ of habeas corpus or a writ of error coram nobis.
8. See Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 579 (1892).


hading Accent 1"/>
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 







NO. 07-10-0118-CV
 
IN THE COURT OF APPEALS
 
FOR THE SEVENTH DISTRICT OF
TEXAS
 
AT AMARILLO
 
PANEL B
 
OCTOBER 18, 2010
______________________________
 
ACE and DANA HAMM, 
 
                                                                                                            Appellants
v.
 
STEVE VAUGHN, individually
and d/b/a VAUGHN CONSTRUCTION,
 
                                                                                                            Appellee
_______________________________
 
FROM THE 121st DISTRICT
COURT OF TERRY COUNTY;
 
NO. 18258; HON. DAVID
GLEASON, PRESIDING
_______________________________
 
Memorandum Opinion
_______________________________
 
 Before QUINN, C.J., and CAMPBELL  and HANCOCK,  JJ.
             Pending before this court is the appeal of Ace
and Dana Hamm from a judgment denying them recovery against Steve Vaughn d/b/a
Vaughn Construction and awarding Vaughn damages against the Hamms.  The latter had sued Vaughn to recover damages
for his alleged failure to complete the construction of their home.  The default purportedly resulted in the Hamms suffering economic and non-economic damages.  Vaughn, in turn, sued the Hamms for breach of
contract.  The jury rendered a verdict in
favor of Vaughn, and the trial judge entered judgment based on that verdict. 
            
The Hamms now question the legal and factual sufficiency of the
evidence underlying that portion of the verdict finding that they breached
first and that their breach was unexcused. 
We affirm the judgment.  
            According to evidence of record, the
Hamms and Vaughn executed a written bid contract under which Vaughn agreed to
construct them a home for $569,750. 
Though the parties had talked about it, Vaughn explicitly refused to
execute a cost-plus agreement.  
Construction began in November of 2007, and proceeded without incident
for several months.  Then, in March of
2008, Ace demanded that Vaughn deliver to him the invoices of Vaughns
subcontractors and suppliers.  Vaughn was
told by Ace that the latter wanted to know what . . . this job [was] costing
him.  Vaughn then told Ace that he did
not disclose his invoices on jobs performed under bid contracts but rather only
on those done under cost plus agreements. 
To that, Ace responded with:  . .
. if you don't show me your invoices, I'm going to let you go. 
            Though Vaughn disclosed to Ace the
specification sheets containing an itemization of the allowances involved,
Ace nonetheless persisted in his demand for invoices.  So too did he inform Vaughn that I got
friends that can help me finish this home if you don't show me your invoices.
            That
the contract between the parties contained no clause requiring disclosure of
the invoices went undisputed.  Nor did
anyone deny that Vaughn was contractually obligated to furnish the Hamms with a
disbursement statement each time he requested a draw or payment.  That statement was to contain the name and
address  of each subcontractor or
supplier that the builder intended to pay with the requested funds.  And, though it appears that Vaughn seldom if
ever provided the Hamms such a statement when he
solicited a draw, Vaughn testified that the Hamms never requested one.  
             The motivation behind Ace's demand for
invoices was the subject of debate.  Ace
suggested that he wanted to see if the subcontractors and suppliers were being
paid.  Yet, the invoices themselves did
not show that.  And, as previously mentioned,
Ace never asked for a disbursement statement which would have identified
those who were to be paid.  Moreover, the
construction was proceeding as contemplated, and the relationship between the
parties was amicable until the invoices were demanded.  Ace also acknowledged that he encountered no
instance of Vaughn omitting to pay any supplier or subcontractor.   
             Nonetheless, Ace did complain to a third party
that the job would have cost him a million dollars if he had not run
(Vaughn) off the job, though he cited no instance of any cost overrun.  Indeed, Vaughn testified that under a bid
contract, any overruns were his responsibility anyway; his customers were not
charged for them.  Ace also disclosed to
a witness that he wanted to see all of the invoices . . .  to see if . . . Vaughn was charging him too
much or having too much markup . . . .  Apparently,
Ace thought Vaughn was only entitled to a markup of ten to fifteen percent
despite having executed a bid, as opposed to a cost-plus contract.  This same witness, who happened to be a
lawyer, also informed Ace that irrespective of what the cost of construction
actually was, Vaughn could only charge him the price specified in the
contract.  
                As represented, Ace did bar Vaughn from
completing the job because Vaughn refused to deliver his invoices.  And, within four days of doing so, Ace had
his own employees and subcontractors finishing the project; this incidentally
contradicted his own testimony that he waited several weeks before assuming the
task.  Additionally, Ace completed the
construction at a cost which was approximately $40,000 less than the bid price
he agreed to pay Vaughn.  But, despite
having saved money, he sued Vaughn for damages, fraud, and deceptive trade
practices.
            The
law provides that a material breach of contract by one party relieves the other
from performing.  PAJ, Inc. v. Hanover Ins. Co., 243
S.W.3d 630, 633 (Tex. 2008).    Of
course, the breach may be excused.  Hanks v. GAB Bus. Servs., Inc., 644 S.W.2d
707, 708 (Tex. 1982).  And, if it is,
then the non-breaching party must perform his obligations.  Id.  
            Here,
the jury found that both the Hamms and Vaughn fail[ed]
to comply with the agreement, that the Hamms failed
to do so first, and that their failure was not excused but that of Vaughn
was.  These findings could be reasonably
based upon the above recitation of the evidence.  Indeed, a rational juror could reasonably
infer from it that Ace cared not that he accepted a bid contract, that he
agreed to pay a set price for the house, or that Vaughn provided no
disbursement statements when seeking periodic payment.  Jurors could also infer from the evidence
that Ace did not actually care about whether the suppliers or subcontractors
were being paid.  Instead, they could
have reasonably deduced that he simply opted not to pay the sum agreed to and instigated
means to avoid that promise by unilaterally deriving some way to rid himself of
Vaughn.  Simply put, the jury was free to
discredit the veracity of Ace's testimony given that he contradicted it himself
at times and rejected his bona fides. 
After all, it heard about how Ace sued Vaughn for damages even though
less was spent on completing the house than the sum he bound himself to
pay.  Dunn v. Bank-Tec. South, 134 S.W.3d 315,
324 (Tex. App.Amarillo 2003, no pet.) (stating
that jurors are free to choose who to believe and disbelieve).  Finally, reasonable minds could also deduce
that one party to a contract that illegitimately prevents another from performing
materially breaches the accord.  Case Corp. v. Hi-Class Business Systems of
America, Inc., 184 S.W.3d 760, 770 (Tex. App.Dallas 2005, pet. denied) (stating
that a party to a contract implicitly obligates himself not to interfere with
the other's performance); Mustang
Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 199 (Tex. 2004) (stating
that materiality of a breach is determined by the extent to which the injured
party will be deprived of the benefit reasonably expected, the extent to which the
injured party can be adequately compensated for the benefit of which he was
deprived, the extent to which the party failing to perform suffers forfeiture, the
likelihood the party failing to perform will cure the failure, and the extent
to which the behavior of the party failing to conform fails to comport with
standards of good faith and fair dealing).
             Given that some evidence supports each aspect
of the jury's verdict being attacked, we cannot say that the record
established, as a matter of law, that the Hamms did not materially breach the
contract first or that their breach was excused.  Southwestern
Bell Tel. Co. v. Garza, 164 S.W.3d 607, 619 n.18 (Tex. 2004) (stating that
a verdict is legally sufficient if the record contains some evidence to support
it).  And, the state of the entire record
is not such that we could reasonably hold that those findings were in any way
manifestly unjust or wrong.  James v. Mazuca
& Assocs. v. Shumann, 82 S.W.3d 90, 93 (Tex.
App.San Antonio 2002, pet. denied) (stating that a verdict is factually
insufficient when it is manifestly unjust or wrong given the great weight of
the evidence).
    
       We overrule each issue and
affirm the final judgment.  
 
 
Per Curiam

