PJC Business 2024

PJC 115.10

D AMAGES

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 Tex. Bus. & Com. Code §17.50(b) (DTPA). Available measures. Damages available to DTPA plaintiffs are those recoverable at common law. Brown v. American Transfer & Storage Co. , 601 S.W.2d 931, 939 (Tex. 1980). Traditional measures of damages for misrepresentation are the out-of pocket and benefit-of-the-bargain measures, the first two samples listed above. W.O. Bankston Nissan, Inc. v. Walters , 754 S.W.2d 127, 128 (Tex. 1988); Leyendecker & Associates v. Wechter , 683 S.W.2d 369, 373 (Tex. 1984). Cost of repair is another rec ognized measure. Nobility Homes of Texas, Inc. v. Shivers , 557 S.W.2d 77, 78 n.1 (Tex. 1977). Damages for cost of repair and diminution in value may or may not be duplica tive. See Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch , 443 S.W.3d 820, 826 (Tex. 2014). A wide variety of incidental and consequential damages are recoverable. Henry S. Miller Co. v. Bynum , 836 S.W.2d 160, 162 (Tex. 1992); Kish v. Van Note , 692 S.W.2d 463, 466–67 (Tex. 1985). Except as specifically provided in DTPA § 17.50(b), (h), damages for bodily injury or death or for the infliction of men tal anguish are exempted from DTPA coverage. DTPA § 17.49(e). 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 , 692 S.W.2d at 466–67. Separate answer for each element. Broad-form submission of multiple elements of damages may lead to harmful error if there is a proper objection raising insuffi ciency of the evidence to support 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 rec ommends that the elements of damages be separately submitted to the jury. Loss of use. The consumer does not need to actually incur out-of-pocket expenses to recover for loss of use of an item. Evidence of the reasonable rental value of the substitute is sufficient. Luna v. North Star Dodge Sales, Inc. , 667 S.W.2d 115, 118–19 (Tex. 1984). Expenses. Recoverable damages include reasonably necessary expenses shown to be factually caused by the defendant’s conduct. Kish , 692 S.W.2d at 466. In Jacobs

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