


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-07-00086-CV
No. 10-07-00200-CV
 
In the
Interest of T.R.F., a Child
 
 
 

From the 82nd District Court
Robertson County, Texas
Trial Court No. 05-07-17,283-CV
 

Opinion





 
            The parental rights of T.F. (mother)
and H.R.F. (father) were terminated as to their child, T.R.F.  Both T.F. and
H.R.F. filed separate notices of appeal.  Because T.F. did not timely file a
statement of points as required by the Texas Family Code, the trial court’s
judgment as to her is affirmed.
            The Department of Protective and
Regulatory Services filed a petition for termination of the parental rights of
T.F. and H.R.F. as to their child, T.R.F.  On January 18, 2007, a jury
determined that the parent-child relationship between the parents and the child
should be terminated.  The trial court signed the final order of termination on
February 28, 2007.  Within days of the jury’s verdict, and over 30 days prior
to the rendition of the final order, the trial court appointed different
appellate counsel for T.F. and H.R.F.  Both parents filed separate notices of
appeal.
            The Texas Family Code requires an
appellant of a state-initiated termination order to file with the trial court,
no later than 15 days after the final order is signed, a statement of points on
which the appellant intends to appeal.  Tex.
Fam. Code Ann. § 263.405(b) (Vernon Supp. 2006).  We, as the
"appellate court[,] may not consider any issue that was not specifically
presented to the trial court in a timely filed statement of points...."  Id. § 263.405(i); In the Interest of E.A.R., 201 S.W.3d 813 (Tex. App.—Waco 2006, no pet.).  When the clerk’s record was filed in this appeal, we
noticed that there was no statement of points by T.F. contained within the
clerk’s record.  
            On May 3, 2007, the Clerk of this
Court notified T.F. by letter of the absence of the statement of points and
warned her that we may affirm the trial court’s judgment as to her unless,
within 21 days of the date of the letter, a response was filed showing grounds
for this Court to consider any issue that was not raised in a statement of
points.  On May 21, 2007, we received notice that T.F. was proffering to the
trial court a statement of points.  
            On May 29, 2007, we received T.F.’s
response to the Clerk’s letter.  In the response, T.F. states several factual
reasons why we should not “dismiss” her appeal[1]
for the late filing of the statement of points:  1) counsel was not present at
the trial; 2) the appellate record was not received until after the deadline
for the statement of points had passed; 3) trial counsel did not return
repeated phone calls in advance of the various appellate deadlines; and 4)
appellate counsel was not copied on any other party’s post-judgment motions. 
T.F. contends she should not be penalized when the “factual circumstances make
it practically impossible to meet the technical requirements” of the Texas
Family Code.
            T.F. also argues that her two issues
on appeal are not a surprise to the trial court because they were the subject
of a written motion in the trial court, the subject of oral motions, and the
subject of H.R.F.’s statement of points.  She adds, “To require a Statement of
Points on Appeal about issues that were raised by written and oral motion and
on which the trial court had multiple opportunities to decide, is simply
absurd.”             T.F. further argues that 
Appellant’s constitutionally-protected parental
relationship was terminated.  Then, through a series of circumstances,
including a change in counsel, delays in receiving court transcripts etc – none
of which are under Appellant’s control – Appellant is unable to meet a
statutorily required deadline that applies to no other cases other than CPS
terminations.  Then, based on that inability to meet the deadline, her appeal
is dismissed despite the fact that the trial court was presented multiple times
with each and every appellate issue addressed in her timely-filed appeal
brief.  Quite frankly, such a result would raise significant concern that
Appellant’s procedural due process rights would be violated and also raises the
question about whether parents in Appellant’s position are receiving equal
protection.
 
            In response to prior appellate court
decisions which frustrated the Legislature’s goal to speed up the post-judgment
process in parental termination cases, the Texas Legislature enacted section
263.405(i), effective for appeals filed after September 1, 2005.  See In
the Interest of E.A.R, 201 S.W.3d 813, 815 n.2 (Tex. App.—Waco 2006, no
pet.) (Vance, J., concurring); see also In the Interest of R.C.,
No. 07-06-0444-CV, 2007 Tex. App. LEXIS 3208 (Tex. App.—Amarillo April 25,
2007, no pet. h.).  Several courts of appeals, including a majority of this
Court, have questioned the practical application and constitutional validity of
this statute.  See In the Interest of M.N., No. 11-06-00228-CV,
2007 Tex. App. LEXIS 3564, *3 n.1 (Tex. App.—Eastland May 10, 2007, no pet.
h.); 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. h.); In the Interest of
J.W.H., No. 10-06-00083-CV, 2007 Tex. App. LEXIS 2340, *4 n.2 (Tex.
App.—Waco March 21, 2007, no pet. h.); 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.).  But there may be other avenues
besides a direct appeal or even in conjunction with a direct appeal to protect
the due process concerns expressed by these courts.  See In the
Interest of J.W.H., 2007 Tex. App. LEXIS 2340, *5-7 (Gray, C.J.,
concurring) (discussing application of Texas Family Code section 161.211(a)); In
the Interest of R.C., No. 07-06-0444-CV; 2007 Tex. App. LEXIS 3208, *4
(Tex. App.—Amarillo April 25, 2007, no pet. h.) (recognizing that a party has
no recourse through a statutory writ of habeas but expressing no opinion as to
whether a common law writ of habeas corpus or writ of error coram nobis would
provide relief).  And since its enactment, every appellate court called upon to
address this question has agreed that the clear language of the statute
prohibits us from considering issues not presented in a timely filed statement
of points.  See In the Interest of R.C., 2007 Tex. App. LEXIS
3208 at *3 n.6; see also In the Interest of M.N., No.
11-06-00228-CV, 2007 Tex. App. LEXIS 3564 (Tex. App.—Eastland May 10, 2007, no
pet. h.).  
            Whether or not the requirements of
section 263.405 are “simply absurd,” we cannot carve out an exception to the
statute for T.F.  To do so would be legislating from the bench.  In the
Interest of R.C., 2007 Tex. App. LEXIS 3208 at *3.  Under the express terms
of the statute, we cannot consider T.F.’s issues on appeal because her
statement of points was untimely filed.  Tex.
Fam. Code Ann. § 263.405(i) (Vernon Supp. 2006).  
            Therefore, T.F.’s issues are dismissed
and the trial court’s judgment as to T.F. is affirmed.  See In the
Interest of E.A.R, 201 S.W.3d 813, 814 (Tex. App.—Waco 2006, no pet.). 
T.F.’s appeal is severed from appellate case number 10-07-00086-CV and assigned
to appellate case number 10-07-00200-CV.
 
                                                                        TOM
GRAY
                                                                        Chief
Justice
 
Before
Chief Justice Gray,
            Justice
Vance, and
            Justice
Reyna
(Justice
Vance concurring in Cause No. 10-07-00200-CV)
Affirmed,
in part, and severed
Opinion
delivered and filed June 27, 2007
[CV06]




[1] As
noted earlier, the Clerk warned T.F. that the judgment would be affirmed as to
her, not that her appeal would be dismissed.



gin:0in;margin-bottom:.0001pt;
text-align:justify;text-indent:.5in;line-height:200%'>The property is currently used as irrigated cropland, and the land
surrounding the property is also used as irrigated cropland.  At the hearing to
exclude his testimony, Hoppess testified that he determined the highest and
best use of the property to be for “investment purposes, either for development
as rural recreational subdivision and/or industrial.”  Hoppess states in his
report that the highest and best use is investment for future development as
recreational subdivision or industrial without providing any analysis on how he
arrived at his conclusion.  
At trial, Hoppess testified that in his opinion agricultural use has
not been the highest and best use of land for many years because it will not
support the price of land.  Again, Hoppess merely states his conclusion without
providing any analysis.  
Hoppess stated at trial that he looked at sixty-seven sales to
determine highest and best use, but he does not provide any analysis to show
that those sales support his conclusion on highest and best use.  Hoppess said
that he believes that the property lends itself in the reasonable future to be
utilized as a rural recreational subdivision such as small horse farms. 
Hoppess did not provide any evidence to show a trend in the development of
rural recreational subdivisions.  Hoppess acknowledged that there are no
adjacent tracts used for rural recreational subdivisions.  Hoppess did not show
that it was reasonably probable that the land would be used for industrial
purposes or as a recreational subdivision.  Consideration cannot be given to
uses which are purely speculative.  City of Sugar Land v. Home and Hearth
Sugarland, L.P., 215 S.W.3d at 511.  Hoppess’s testimony does not rebut the
presumption that the current use of irrigated cropland is the highest and best
use.  Hoppess’s opinion on highest and best use is conclusory and unsupported,
and therefore, unreliable.  
            Hoppess
testified that the highest and best use is key in establishing the fair market
value.  Hoppess also considered the highest and best use in his analysis of
damages to the remainder.  Hoppess found the damages to the remainder to be
$470,812.  In assessing the damage to the remainder, Hoppess found that to
utilize the property at its highest and best use, Moore would have to construct
special crossings over the easement.  Hoppess contends that the crossings are
required by Chapter 756 of the Texas Health and Safety Code.  
            By
way of comparison, Trend’s expert, Ronnie Harris, testified that he found no
evidence that the highest and best use of the land was anything other than the
current use of irrigated cropland.  Harris testified that there is no damage to
the remainder if the easement does not interfere with the highest and best
use.  Harris stated that the property is still in use as cropland.  Harris had
recently viewed the property, and he could not tell that the pipeline was
present.  Harris concluded that there was no damage to the remainder.  
            Having
found that Hoppess’s testimony was unreliable because it was speculative and
conclusory, we hold that the trial court erred in admitting the testimony.  We
sustain Trend’s first issue on appeal.  Because of our disposition of the first
issue on appeal, we need not address the remaining issues.  Tex. R. App. P. 47.1. 
Because Hoppess’s testimony should not have been admitted, the
evidence does not support the verdict for damages.  When there is no evidence
to support a damages verdict, the court of appeals should render a take nothing
judgment as to that amount.   Larson v. Cactus Util. Co., 730 S.W.2d
640, 641 (Tex. 1987); City of Emory v. Lusk, 278 S.W.3d 77, 88 (Tex. App.—Tyler
2009, no pet.).  If part of a damage verdict lacks sufficient evidentiary
support, the proper course is to suggest a remittitur of that part of the
verdict.  City of Emory v. Lusk, 278 S.W.3d at 88.  The party prevailing
in the trial court should be given the option of accepting the remittitur or
having the cause remanded.  Id.
            The
jury awarded $25,528 as the value of the easement and $222,642 as the damages
to the remainder.  The total amount of damages awarded is $248,170.  There is
evidence to support an award of damages to Moore for $21,180 as the value of
the easement.  There is no evidence to support the award for damages to the
remainder.  Subtracting $21,180 from $248,170 leaves a difference of $226,990. 
Accordingly, we suggest a remittitur in the amount of $226,990.  Tex. R. App. P. 46.3.
Cross-Point
            Moore
brings one cross-point in which she argues that the trial court erred by
ordering Laura W. Moore, in her capacity as trustee for the estate of Laura W.
Moore Living Trust, to remit part of the special commissioners’ award to Trend
because the award was only paid to Moore Pipeline Corridor, LLC.  Moore asks
that we modify the judgment to reflect that only Moore Pipeline is ordered to
remit the difference in the special commissioners’ award and the jury verdict. 
A party who seeks to alter the trial court’s judgment must file a notice of
appeal.  Tex. R. App. P. 25.1(c).
 Moore did not file a notice of appeal, and therefore, we cannot consider her
cross-point.
Conclusion
            We
affirm the trial court’s judgment awarding Trend a permanent easement and a
temporary workspace easement.  We affirm the trial court’s judgment ordering
Laura W. Moore, in her capacity as Trustee of the Laura W. Moore Living Trust,
and Moore Pipeline Corridor, LLC to remit to Trend the sum of $709,877.50.  If
Moore files a remittitur of an additional $226,990 within 12 days, we will
reform the judgment and, as reformed, affirm.  If the remittitur is not filed
within 12 days from the date of this opinion, we will reverse the trial court’s
judgment and remand for a new trial.  Our judgment in accordance with this
opinion and Moore’s subsequent action on the remittitur will be rendered 14
days from the date of this opinion.
 
                                                                        TOM
GRAY
                                                                        Chief
Justice
 
Before Chief Justice Gray,
            Justice Reyna, and
            Justice Davis
            (Justice Davis concurs with a note) *
Affirmed in part and modified in part
Opinion delivered and filed December 1, 2010
[CV06] 
 
            * (Justice
Davis concurs only partially as he would reverse and remand completely for a
new trial.  No separate opinion will issue.)
