PJC Business

PJC 105.4

F RAUD AND N EGLIGENT M ISREPRESENTATION

tion but fails to disclose the whole truth, (3) a person makes a representation but fails to disclose new information that makes the earlier representation misleading or untrue, or (4) a person makes a partial disclosure and conveys a false impression. See, e.g., Columbia/HCA Healthcare Corp. v. Cottey , 72 S.W.3d 735, 744–45 (Tex. App.— Waco 2002, no pet.); Anderson, Greenwood & Co. v. Martin , 44 S.W.3d 200, 212–13 (Tex. App.—Houston [14th Dist.] 2001, pet. denied); Lesikar v. Rappeport , 33 S.W.3d 282, 299 (Tex. App.—Texarkana 2000, pet. denied). Section 551 of the Restatement (Second) of Torts (1977) recognizes a general duty to disclose facts in a commercial setting. But the supreme court has repeatedly stated that it has never adopted section 551. See, e.g., Carduco, Inc. , 583 S.W.3d at 562. Concealment. Active concealment of material facts may also be as actionable as false statements. Campbell v. Booth , 526 S.W.2d 167, 172 (Tex. App.—Dallas 1975, writ ref’d n.r.e.). PJC 105.4 element 1 may need to be modified to include conceal ment. See GXG, Inc. v. Texacal Oil & Gas , 977 S.W.2d 403, 409 (Tex. App.—Corpus Christi–Edinburg 1998, pet. denied). Fraud as a ground for exemplary damages. Constructive fraud cannot serve as a predicate for recovery of exemplary charges. Tex. Civ. Prac. & Rem. Code § 41.001(6). Accordingly, if fraud is an underlying theory of liability as well as a pred icate for recovery of exemplary damages, constructive fraud should be submitted sep arately from intentional or statutory fraud. See PJC 115.37 comment, “Fraud as a ground for exemplary damages.”

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