PJC Business

D AMAGES

PJC 115.45

PJC 115.45 Question and Instructions—Misapplication of Fiduciary Property or Property of Financial Institution as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(10)) Answer the following question only if you unanimously answered “Yes” to Question ______ [ 115.37 ]. Otherwise, do not answer the following question. QUESTION ______ Did Don Davis knowingly or intentionally misapply [ identify property defendant held as a fiduciary ] in a manner that involved substantial risk of loss to Paul Payne [ and was the value of the property $2,500 or greater ]? “Misapply” means a person deals with property [ or money ] contrary to an agreement under which the person holds the property [ or money ]. “Substantial risk of loss” means it is more likely than not that loss will occur. A person acts “knowingly,” or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts know ingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. A person acts “intentionally,” or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 115.45 should be used in a case in which (1) exemplary dam ages are sought, (2) the harm to the plaintiff is alleged to have resulted from conduct described in Tex. Penal Code §32.45, and (3) the jury has previously found that the defendant committed conduct authorizing recovery of exemplary damages as set out in Tex. Civ. Prac. & Rem. Code §41.003. See Tex. Civ. Prac. & Rem. Code §41.008(c)(10). If the jury finds conduct that violates Tex. Penal Code §32.45, the limitations on exemplary damages awards set out in Tex. Civ. Prac. & Rem. Code § 41.008(b) do not apply. Tex. Civ. Prac. & Rem. Code § 41.008(c)(10).

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