PJC Business 2024

PJC 115.9

D AMAGES

COMMENT When to use. PJC 115.9 should be predicated on a “Yes” answer to PJC 102.1, 102.7, or 102.8, finding a violation of section 17.46(b) of the Texas Deceptive Trade Practices–Consumer Protection Act (Tex. Bus. & Com. Code §§ 17.41–.63) (DTPA), an unconscionable action, or a breach of warranty. It may be adapted for use in most DTPA cases by the addition of appropriate instructions setting out legally available measures of damages. See PJC 115.4 and 115.10. Instruction required. PJC 115.9 should not be submitted without an instruction on the appropriate measures of damages. See Jackson v. Fontaine’s Clinics, Inc. , 499 S.W.2d 87, 90 (Tex. 1973). Alternative measures. The DTPA permits the injured consumer to recover the greatest amount of actual damages caused by the wrongful conduct. Thus, the con sumer may submit to the jury alternative measures of damages for the same loss and then elect after the verdict the recovery desired by waiving the surplus findings on damages. Kish v. Van Note , 692 S.W.2d 463, 466–67 (Tex. 1985). Similarly, if the DTPA claim is only one of several theories of recovery, each cause of action will have its own damages question inquiring about similar claims of damages. Separating elements of damages. Based on Tex. Civ. Prac. & Rem. Code §41.008(a), the Committee suggests separating economic from other compensatory damages. Separating economic from noneconomic and past from future damages is required— 1. to allow the court to apply the limits on recovery of exemplary damages based on economic and noneconomic damages as required by Tex. Civ. Prac. & Rem. Code § 41.008(b); 2. to allow calculation of prejudgment interest on damages in cases gov erned by Tex. Fin. Code § 304.1045 (for final judgments signed or subject to appeal on or after September 1, 2003); and 3. to allow the court to apply the proper standards for recovery of economic, mental anguish, and additional damages under DTPA § 17.50(b). See PJC 115.10 for sample damages instructions. In addition, broad-form submission of multiple elements of damages may lead to harmful error if there is a proper objection raising insufficiency of the evidence to sup port one or more of the elements submitted. Harris County v. Smith , 96 S.W.3d 230, 233–34 (Tex. 2002). If there is any question about the sufficiency of the evidence to support one or more of the elements, the Committee recommends that the elements of damages be separately submitted to the jury. Instruction on considering elements separately. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 770 (Tex. 2003), provides an instruction for cases involving

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