Affirmed and Memorandum Opinion filed December 20, 2012.




                                      In The

                      Fourteenth Court of Appeals

                               NO. 14-11-00861-CV

                       ISSAC SAVVAS MOLHO, Appellant

                                        V.
    WEICHERT, REALTORS REICHARDT & ASSOCIATES, Appellee

                      On Appeal from the 400th District Court
                              Fort Bend County, Texas
                       Trial Court Cause No. 06-DCV-148762

                 MEMORANDUM OPINION
      In this breach-of-contract case, appellant Issac Savvas Molho challenges the
trial court’s judgment notwithstanding the verdict (―JNOV‖) in favor of appellee
Weichert, Realtors and Reichardt & Associates (―Weichert‖). In a single issue,
Molho asserts that the trial court entered an erroneous judgment on the jury’s
verdict. We affirm.
                                      BACKGROUND

       As is relevant to this appeal, Weichert, a real estate agency, sued Molho, an
independent sales associate, for breach of an Independent Contractor Sales
Associate Agreement (the ―agreement‖) between the parties. Weichert alleged that
Molho had altered the term length of a property listing agreement from one year to
three months in violation of the agreement. Molho counterclaimed for breach of
the agreement, alleging unlawful termination of the agreement and conversion,
among other claims. In its first amended answer, Weichert asserted the defense of
prior material breach in response to Molho’s breach-of-contract claim.

       The parties tried their case to a jury in May 2011.1 At the charge conference,
the following jury questions were agreed upon by Weichert and Molho:

       Question No. 1: Did [Molho] fail to comply with the [agreement]
       with [Weichert]?
                                               ...
       Question No. 2: What sum of money, if any, if paid now in cash
       would fairly and reasonably compensate [Weichert] for its damages, if
       any, that resulted from such failure to comply?
                                               ...
       Question No. 8: Did [Weichert] fail to comply with the [agreement]?
                                               ...
       Question No. 9: What sum of money, if any, paid now in cash would
       fairly and reasonabl[y] compensate [Molho] for his damages, if any,
       that resulted from [Weichert’s] failure to comply with the terms of the
       [agreement]?
                                               ...
       Question No. 11: Who failed to comply with the agreement first?
       Answer ―[Weichert]‖ or ―[Molho].‖

       1
        The only portion of the reporter’s record from the jury trial provided to us is the charge
conference.

                                                2
Molho neither challenged Question 11,2 nor requested an instruction on material
breach during the charge conference.

       On May 20, 2011, the jury returned its verdict. In pertinent part, it answered
―Yes‖ to Question 1, but entered ―-0-‖ in response to Question 2, finding that
Molho had failed to comply with the agreement, but that this failure did not result
in monetary damages. The jury answered ―Yes‖ to Question 8 and ―$1,443.06‖ to
Question 9, finding that Weichert also had failed to comply with the agreement and
that this failure resulted in monetary damages to Molho.3 Finally, in response to
Question 11, the jury found that Molho was the first to fail to comply with the
agreement.

       On June 16, 2011, Weichert moved for JNOV, asserting that the jury’s
award of damages to Molho for breach of contract and attorney’s fees was
improper as a matter of law. It asserted that its duty to perform under the contract
was excused by Molho’s prior material breach, which the jury found by its
response to questions 1 and 11. Thus, Weichert argued, as a matter of law, Molho
could not recover on his breach-of-contract claim. And because Moho could not
recover on his breach-of-contract claim, he could not recover attorney’s fees.

       On July 15, 2011, Molho moved for entry of judgment based on the jury’s
answers to questions regarding Weichert’s breach of the agreement, damages, and
attorney’s fees. Molho responded to Weichert’s JNOV motion on August 22, 2011.
He did not reply to Weichert’s arguments that his prior breach of the agreement

       2
         The clerk’s record contains a proposed jury question, with a notation indicating it was
rejected by the trial court, asking whether Molho’s obligations under the contract were excused
because Weichert breached the agreement first. But at the charge conference, this question was
not specifically referenced. Additionally, Molho’s trial counsel affirmatively stated, ―I’m okay
with [Question] 11.‖
       3
         The jury also found that $9,180 was a reasonable amount for Molho’s attorney fees for
preparation and trial, as well as finding reasonable appellate fees.

                                               3
was material in his response to Weichert’s JNOV motion. Instead, Molho asserted
that Question 11 was irrelevant because no damages had been awarded to Weichert
on its breach-of-contract claim.

       On September 1, 2011, the trial court rendered a take-nothing judgment in
favor of Weichert on Molho’s breach-of-contract claim.4 The trial court also denied
Molho attorney’s fees. Molho filed a motion for reconsideration, which was
overruled by operation of law. Molho timely filed this appeal.

                                          ANALYSIS

       In Molho’s sole issue, he contends that the trial court misapplied the law in
overruling the jury’s award of damages and attorney’s fees on his breach-of-
contract claim. Specifically, he argues that because no damages were awarded to
Weichert on its breach-of-contract claim, the jury’s finding that Molho breached
first is immaterial and the trial court should not have granted JNOV. Weichert
counters that the court properly applied the law to the jury’s findings, the jury
found Molho’s breach material, and damages were not required to find a material
breach.

       We affirm a trial court’s decision to grant a JNOV if there is no evidence to
support one or more jury findings necessary for liability, 5 or when a legal principle
precludes recovery. Autry v. Dearman, 933 S.W.2d 182, 190–91 (Tex. App.—
Houston [14th Dist.] 1996, writ denied); John Masek Corp. v. Davis, 848 S.W.2d
170, 173 (Tex. App.—Houston [1st Dist.] 1992, writ denied). In considering a
JNOV, we apply the standards for ―no evidence‖ embodied in a legal sufficiency
review. Hartland v. Progressive Cnty. Mut. Ins. Co., 290 S.W.3d 318, 321 (Tex.

       4
         The court further awarded Molho $300 as damages for his conversion claim plus court
costs. This portion of the judgment is not at issue in this appeal.
       5
           Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003).

                                                 4
App.—Houston [14th Dist.] 2009, no pet.); see City of Keller v. Wilson, 168
S.W.3d 802, 823 (Tex. 2005). Thus, we will affirm a JNOV if (1) there is a
complete absence of evidence of a vital fact; (2) rules of law or evidence preclude
according weight to the only evidence offered to prove a vital fact; (3) the evidence
offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence
conclusively establishes the opposite of the vital fact. Hartland, 290 S.W.3d at 321
(citing City of Keller, 168 S.W.3d at 810). We must review the evidence in the
light most favorable to the verdict and assume that the jury resolved all conflicts in
accordance with the verdict. City of Keller, 168 S.W.3d at 820. To the extent that
the trial court’s ruling is based on a question of law, we review that part of the
ruling de novo. COC Servs., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 662 (Tex.
App.—Dallas 2004, pet. denied); see also In re Humphreys, 880 S.W.2d 402, 404
(Tex. 1994) (―[Q]uestions of law are always subject to de novo review.‖)

       ―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.‖ Mustang Pipeline Co. v. Driver Pipeline Co.,
134 S.W.3d 195, 196 (Tex. 2004) (per curiam). As noted above, Molho contends
that because no damages were awarded for his prior breach, the jury’s finding that
he breached the agreement first should be disregarded. However, there is no
requirement that damages be associated with a defense of prior material breach.
See id. at 199–201 (holding a contract to construct a pipeline was terminated by the
construction company’s prior material breach of the contract, although awarding
no damages to the other party for this prior material breach). Thus, we reject
Molho’s argument.6

       6
        Molho did not challenge the materiality of his prior breach until he filed his reply brief
on appeal, notwithstanding the fact that Weichert raised prior material breach in its answer and
its JNOV. In his reply brief, he asserts that the jury did not find that the breach was material and
                                                 5
      Accordingly, we overrule Molho’s sole issue and affirm the trial court’s
judgment.



                                  /s/           Adele Hedges
                                                Chief Justice

Panel consists of Chief Justice Hedges and Justices Brown and Busby.




thus Weichert had not established a necessary element of this defense. Arguments may not be
raised for the first time in a reply brief. Brown v. Green, 302 S.W.3d 1, 13–14 (Tex. App.—
Houston [14th Dist.] 2009, no pet.).

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