in the Matter of the Marriage of Johnnie J. Moore and Kathalean G. Moore
14-15-00859-CV
| Tex. App. | Jul 20, 2017Background
- Johnnie and Kathalean Moore divorced; their Agreed Decree of Divorce incorporated an Agreement Incident to Divorce. Johnnie was awarded the marital residence; Kathalean was awarded $1,400,000 to be paid in installments.
- Johnnie alleged that when he took possession of the house in April 2010 Kathalean had stripped fixtures and left the property damaged; he sued to enforce the Agreement and alternatively for breach of contract, conversion, and civil theft.
- Kathalean counterclaimed, alleging Johnnie failed to pay $665,960 owed under the Decree.
- A jury found both parties breached the Agreement and found in favor of both on various claims: conversion ($183,600), breach of contract ($136,592), and civil theft ($25,000).
- The trial court entered judgment awarding Johnnie $183,600 on conversion and awarding Kathalean $650,000 on her breach claim; Johnnie appealed, arguing (1) the court erred in denying his motion to disregard the jury’s finding that he breached the Agreement, and (2) the court improperly failed to enter judgment on jury awards to him for breach and civil theft.
Issues
| Issue | Plaintiff's Argument (Johnnie) | Defendant's Argument (Kathalean) | Held |
|---|---|---|---|
| Whether the trial court erred by denying Johnnie’s motion to disregard the jury finding he breached the Agreement | Johnnie argued the question was immaterial because Kathalean materially breached first, excusing his performance as a matter of law | Kathalean argued prior-material-breach was not pleaded/waived and the record does not conclusively show she breached first | Court held Johnnie waived the affirmative defense (not pleaded or tried by consent); even if considered, evidence did not conclusively prove Kathalean breached first, so denial was correct |
| Whether the trial court erred by failing to award Johnnie damages for breach of contract and civil theft in addition to conversion | Johnnie argued the jury awarded damages on multiple theories and the court improperly disregarded his favorable findings | Kathalean argued the claims seek recovery for the same injury and only one satisfaction is allowed; the court should enter judgment for the greatest single recovery | Court held one recovery rule applies; conversion award was the greatest recovery and judgment for conversion only was proper |
Key Cases Cited
- Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195 (Tex. 2004) (prior material breach discharges other party)
- Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006) (recognizes prior material breach as an affirmative defense)
- Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361 (Tex. 1988) (when multiple theories seek same injury, award greatest recovery)
- Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182 (Tex. 1998) (one recovery rule; plaintiff cannot recover more than once for same injury)
- Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991) (same principle regarding single recovery for single injury)