PJC Business

PJC 105.27

F RAUD AND N EGLIGENT M ISREPRESENTATION

& Com. Code §24.005(a). However, element 3 should be submitted only if the plain tiff is a present creditor whose claim arose before the transfer was made or the obliga tion was incurred. Tex. Bus. & Com. Code § 24.006(a). Broad-form submission. PJC 105.27 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. Source of question. Elements 1 and 2 of PJC 105.27 are derived from Tex. Bus. & Com. Code §24.005(a)(2). Element 3 is derived from Tex. Bus. & Com. Code § 24.006(a). Use of “or.” Each of elements 1, 2, and 3 should be used only when raised by the evidence. If more than one of the alternative instructions listed above is used, each must be separated by the word or , because a finding of any one of the circumstances defined in the instructions would support recovery under the Uniform Fraudulent Transfer Act, Tex. Bus. & Com. Code tit. 3, ch. 24. Debtor and creditor. If there is a factual dispute regarding the status of a perti nent person or entity as a debtor or creditor, a predicate question should be submitted to determine that status. Appropriate definitions of “debtor” and “debt,” or “creditor” and “claim,” should accompany the question. See Tex. Bus. & Com. Code § 24.002(3)–(6). The defrauded creditor need not be the plaintiff, and defendants may include the debtor and the transferee. See Tex. Bus. & Com. Code §§24.005(a)(2), 24.006(a), 24.008. If there is a dispute regarding when the creditor’s claim arose, a predicate question should be submitted to determine whether the creditor’s claim arose before or within a reasonable time after the transfer was made or the obligation was incurred. See Tex. Bus. & Com. Code §§ 24.005(a), 24.006. Asset. The question assumes the thing transferred is an asset of the debtor. If there is a factual dispute about the thing’s status as an asset, a predicate question should be submitted to determine that status. See Tex. Bus. & Com. Code §§ 24.002(2) (defining “asset” as “property of a debtor” but excluding certain property), 24.002(10) (defining “property” as “anything that may be the subject of ownership”). Whether one of the exclusions from the asset definition applies in a given case may present a question of law for the court. If there is no dispute regarding what the asset or obligation at issue is, it may be preferable not to list it or to specifically identify the asset or obligation in the text of the question, as opposed to listing the potential assets or obligations in the instruction. Insolvent. PJC 105.27 assumes insolvency is undisputed. If insolvency is undis puted, the court may instruct the jury regarding the fact and date of insolvency. If

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