PJC Business

C ONTRACTS

PJC 101.48

PJC 101.48 Construction Contracts—Misapplication of Trust Funds—Affirmative Defenses—Basic Question If you answered “Yes” to Question ______ [ 101.47 ], then answer the follow ing question. Otherwise, do not answer the following question. QUESTION ______ Is Don Davis ’s misapplication of trust funds excused? [Insert instructions; see PJC 101.49.] Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 101.48 poses the controlling question for cases in which a defendant asserts one or more affirmative defenses provided by the Texas Construc tion Trust Funds Act. Broad-form submission. PJC 101.48 is a broad-form question designed to be accompanied by one or more appropriate instructions. Tex. R. Civ. P. 277 requires that “the court shall, whenever feasible, submit the cause upon broad-form questions.” Tex. R. Civ. P. 277; see Thota v. Young , 366 S.W.3d 678, 689 (Tex. 2012) (rule 277’s use of “whenever feasible” mandates broad-form submission in any or every instance in which it is capable of being accomplished). Instructions on grounds of defense required. In the absence of one or more independent grounds of defense, the jury is not permitted to excuse the trustee from misapplying trust funds. Standing alone, PJC 101.48 does not encompass any grounds of defense, so it is mandatory that grounds raised by the pleadings and evidence be submitted by including one or more instructions from PJC 101.49. See, e.g., Traeger v. Lorenz , 749 S.W.2d 249 (Tex. App.—San Antonio 1988, no writ) (separate grounds of waiver and abandonment should have been submitted in deed restriction case). Partial excuse. If there is a factual dispute regarding whether only a portion of the misapplication of trust funds is excused, the question may be modified as follows: Is any misapplication of trust funds by Don Davis excused? An instruction should also be added to the damages question to allow the jury to exclude misapplied trust funds to which an excuse applies. See PJC 115.48.

113