Pleading Affirmative Defenses: Opinions, July 20, 2017

The Fourteenth Court of Appeals released a brief memorandum opinion in Moore v. Moore, No. 14-15-00859-CV, yesterday. Johnnie Moore sued his ex-wife Kathalean Moore for breach of an agreement incident to divorce. Kathalean countersued for enforcement of the property division. Under the AID, Kathalean was to turn over the marital residence and Johnnie was to pay Kathalean $1.4m in installments. Johnnie alleged that when he took possession of the property, it was in shambles and had been stripped of its fixtures. Kathalean alleged that Johnnie had failed to pay her $665,960.00 as required by the AID. The jury found for both parties, awarding Johnnie $183,600.00 on his conversion claim, $136,592.00 on his breach of contract claim, and $25,000 on his civil theft claim, and awarding Kathalean $650,000.00 on her breach of contract claim. The trial court disregarded the jury’s findings as to the breach of contract and civil theft claims because they represented a double recovery. Johnnie appealed.

In his first issue, Johnnie argued the trial court by denying his motion to disregard the jury’s finding that Johnnie breached the agreement. Johnnie argued that Kathalean had breached the agreement first and because she materially breached the agreement first, he was excused from further performance. While this is a perfectly valid affirmative defense, it appears Johnnie failed to plead it and it was not tried by consent. Thus the defense was waived. Even if he had pled it, the Court of Appeals noted Kathalean’s counter-petition alleged Johnnie missed two payments before she surrendered the residence.

In his second issue, Johnnie argued the trial court erred by disregarding the jury’s findings in Johnnie’s favor on his claims for breach of contract and civil theft. The COA found these damages arose from the same facts, same injuries, and same measure of damages and thus constituted an impermissible double recovery. The judgment was affirmed.

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