

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

