IN THE MATTER OF THE MARRIAGE OF JOHNNIE J. MOORE AND KATHALEAN G. MOORE
Appeal from the 247th District Court Harris County, Texas
Trial Court Cause No. 2009-00295
consists of Chief Justice Frost and Justices Donovan and
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.
and Procedural Background
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.
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.
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.
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.
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
The Motion to Disregard the Jury Answer
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)).
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 ...