PJC Business

D AMAGES

PJC 115.19

COMMENT When to use. PJC 115.19 should be predicated on a “Yes” answer to PJC 105.1 or 105.7 and may be adapted for use in most fraud cases by the addition of appropriate instructions setting out legally available measures of direct damages. See PJC 115.4 and 115.10. If only one measure of damages is supported by the pleadings and proof, the measure may be incorporated into the question. Instruction required. PJC 115.19 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). See PJC 115.4 and 115.10 for sample instructions. Direct damages. PJC 115.19 should be used only for the submission of direct damages in fraud cases. For a discussion of direct damages, see PJC 115.4 Comment. In fraud cases, direct damages are sometimes referred to as general damages—that is, damages that are the necessary and usual result of the wrongful act. Baylor University v. Sonnichsen , 221 S.W.3d 632, 636 (Tex. 2007). “Two types of direct damages are available for common-law fraud: out-of-pocket damages, measured by the difference between the value expended versus the value received, and benefit-of-the-bargain damages, measured by the difference between the value as represented and the value received.” Anderson v. Durant , 550 S.W.3d 605, 614 (Tex. 2018) (citing Zorrilla v. Aypco Construction II, LLC , 469 S.W.3d 143, 153 (Tex. 2015)). However, the benefit of-the-bargain measure is not available for fraud that induces a nonbinding contract. Anderson , 550 S.W.3d at 614; Zorrilla , 469 S.W.3d at 153 (citing Haase v. Glazner , 62 S.W.3d 795, 799–800 (Tex. 2001)). “[I]f there is a defect in contract formation, the only potentially viable measure of fraud damages is the out-of-pocket measure.” Zor rilla , 469 S.W.3d at 153. PJC 115.20 may be used to submit consequential damages, and PJC 115.38 may be used to submit exemplary damages. Elements of damages submitted separately. The Committee generally recom mends that multiple elements of damages be separately submitted to the jury. Harris County v. Smith , 96 S.W.3d 230, 233–34 (Tex. 2002) (broad-form submission of valid and invalid elements of damages may lead to harmful error if there is a proper objec tion raising insufficiency of the evidence to support one or more of the elements sub mitted); see also Tex. Civ. Prac. & Rem. Code §41.008(a) (“In an action in which a claimant seeks recovery of damages, the trier of fact shall determine the amount of economic damages separately from the amount of other compensatory damages.”). Separating economic from noneconomic damages is required to allow the court to apply the limits on recovery of exemplary damages based on economic and noneco nomic damages as required by Tex. Civ. Prac. & Rem. Code § 41.008(b). Further, “[p]rejudgment interest may not be assessed or recovered on an award of future damages.” Tex. Fin. Code § 304.1045 (wrongful death, personal injury, or prop erty damage cases). Therefore, separation of past and future damages is required.

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