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In re Marriage of Moore

Court of Appeals of Texas, Fourteenth District

July 20, 2017

IN THE MATTER OF THE MARRIAGE OF JOHNNIE J. MOORE AND KATHALEAN G. MOORE

         On Appeal from the 247th District Court Harris County, Texas Trial Court Cause No. 2009-00295

          Panel consists of Chief Justice Frost and Justices Donovan and Wise.

          MEMORANDUM OPINION

          Ken Wise Justice.

         Appellant Johnnie J. Moore (Johnnie) sued appellee Kathalean G. Moore (Kathalean) to enforce an agreement incident to divorce incorporated into their final decree of divorce, and Kathalean countersued for enforcement of the property division. Following a jury trial, the trial court entered a judgment awarding Johnnie damages for conversion and awarding Kathalean damages for breach of contract. On appeal, Johnnie contends that the trial court erred by denying his motion to disregard the jury's answer and by failing to grant judgment on jury findings awarding damages for his claims of breach of contract and civil theft. We affirm.

         Factual and Procedural Background

         On March 19, 2010, Johnnie and Kathalean entered into an Agreed Decree of Divorce (the Decree), which incorporated by reference an Agreement Incident to Divorce (the Agreement). In the Agreement, Johnnie was awarded the marital residence located at 5031 Cedar Creek, Houston, Texas 77057, including listed property, with Kathalean having the exclusive right to use of the residence for thirty days. As part of the property settlement, Kathalean was awarded the sum of $1, 400, 000.00, to be paid in various payments and installments as provided in the Agreement.

         Several years later, Johnnie sued for enforcement of the Agreement and in the alternative, breach of contract, conversion, and civil theft. Johnnie alleged that when he arrived to take possession of the residence on April 19, 2010, he discovered that Kathalean had completely stripped the home of its fixtures and left it "in shambles." Kathalean filed a counter petition for enforcement and in the alternative, breach of contract. Kathalean alleged that Johnnie had failed to pay Kathalean $665, 960.00 of the money that was awarded to her in the Decree.

         The case was tried to a jury over four days. The jury returned a verdict in favor of both parties on all claims, including the claims pleaded in the alternative. Johnnie filed a motion to disregard the jury's finding that he breached the Agreement, which the trial court denied. Johnnie also filed objections to Kathalean's proposed final judgment, arguing that the judgment did not conform to the verdict because it did not include an award of damages to Johnnie on his claims of breach of contract and civil theft. The trial court overruled Johnnie's objections.

         On September 11, 2015, the trial court signed a judgment awarding Johnnie $183, 600.00 on his conversion claim and awarding Kathalean $650, 000.00 on her breach-of-contract claim. This appeal followed.

         Issues and Analysis

         On appeal, Johnnie raises two issues. First, Johnnie contends that the trial court erred by denying his motion to disregard the jury's finding that he breached the Agreement. Second, Johnnie contends that the trial court erred by disregarding the jury verdict and effectively granting a judgment notwithstanding the verdict when the trial court failed to grant judgment on the jury findings and awards of damages to him for his claims of breach of contract and civil theft.

         I. The Motion to Disregard the Jury Answer

         In his first issue, Johnnie argues that the trial court erred by denying his motion to disregard the jury's finding that Johnnie breached the Agreement on the basis that the question was immaterial because it called for a finding on a question of law. The jury found that both Johnnie and Kathalean breached the Agreement. Johnnie maintains that because he sued on the Agreement as a contract, and Kathalean materially breached the contract first, he is excused from performance as a matter of law. See Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex. 2004) ("It is a fundamental principle of contract law that when one party to a contract commits a material breach of that contract, the other party is discharged or excused from further performance.") (citing Hernandez v. Gulf Grp. Lloyds, 875 S.W.2d 691, 692 (Tex. 1994)).

         The contention that a party to a contract is excused from performance because of a prior material breach by the other contracting party is an affirmative defense that must be pleaded. See Tex. R. Civ. P. 94; Bartlett v. Bartlett, 465 S.W.3d 745, 752 n.8 (Tex. App.-Houston [14th Dist.] 2015, no pet.); Compass Bank v. MFP Fin. Servs, Inc., 152 S.W.3d 844, 853 (Tex. App.-Dallas 2005, pet. denied); RE/MAX of Tex., Inc. v. Katar Corp., 961 S.W.2d 324, 327 (Tex. App.-Houston [1st Dist.] 1997, pet. denied); see also Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2006) (recognizing prior material breach as an affirmative defense); Danford Maint. Serv., Inc. v Dow Chem. Co., No. 14-12-00507-CV, 2013 WL6388381, at *9 (Tex. App.-Houston ...


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