PJC Business

F RAUD AND N EGLIGENT M ISREPRESENTATION

PJC 105.11

PJC 105.11 Question and Instruction on Actual Awareness of Statutory Fraud

If you unanimously answered “Yes” to Question ______ [ 105.7 used with 105.8 or 105.9 ], then answer the following question. Otherwise, do not answer the following question. QUESTION ______ Did Don Davis have actual awareness of the falsity of the representation or promise you found to be fraud in Question ______ [ 105.7 used with 105.8 or 105.9 ]? Actual awareness may be inferred where objective manifestations indicate a person acted with actual awareness. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. Tex. Bus. & Com. Code §27.01(c) provides for recovery of exem plary damages if the person making the false representation or promise does so with actual awareness of its falsity. For the appropriate question on exemplary damages, see PJC 115.38. PJC 105.11 should not be used in connection with the question or instruc tion regarding benefiting from statutory fraud at PJC 105.10. Broad-form submission. PJC 105.11 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). For further discussion, see PJC 116.2 regarding broad-form issues and the Casteel doctrine. Actions filed before September 1, 2003. Unanimity is not required in actions filed before September 1, 2003. In such cases, substitute the following conditioning instruction: If you answered “Yes” to Question ______ [ 105.7 used with 105.8 or 105.9 ], then answer the following question. Otherwise, do not answer the following question.

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