PJC Business

PJC 115.60

D AMAGES

award of underlying ‘actual damages’”). In those circumstances, the following modi fied predicate question may be used: If you have answered “Yes” to Question ______ [ breach of con tract claim ] and awarded an amount other than zero in Question ____ [ damages for breach of contract claim ], then answer the following question. Otherwise, do not answer the following question. Do not use “if any” if the law requires the award of some fees. The phrase “if any” should not be added in jury questions for fees where the legal authorization for fees requires the award of some amount of trial and appellate fees, such as Texas Civil Practice and Remedies Code chapter 38 or the Texas Theft Liability Act if supported by some evidence. See Ventling v. Johnson , 466 S.W.3d 143, 154 (Tex. 2015). In those instances, the jury determines the amount of reasonable and necessary fees, not whether fees should be recovered. Zero fees. Unless evidence was admitted that no fee was needed to assert or defend a claim, a zero-fee award may be reversible error. See Smith v. Patrick W.Y. Tam Trust , 296 S.W.3d 545, 548 (Tex. 2009). The trial court can correct the error by directing jurors before they are discharged to return to the jury room and reform their answer. See Tex. R. Civ. P. 295; Smith , 296 S.W.3d at 548. In such cases, the following instruction may be used: The evidence in this case indicates that some amount of attorney’s fees is reasonable, making the finding of zero inappropriate. It is up to the court to fashion a judgment from the answers to the jury ques tions. Therefore, I am instructing you to return to your deliberations to make a decision on the question[s] for attorney’s fees that is con sistent with the evidence and other instructions given by the court to the jury. Submit additional fact questions to the jury. In cases where additional ele ments must be proven and a fact question exists, those must be submitted to the jury . See Svoboda v. Thai , No. 01-17-00584-CV, 2019 WL 1442434, at *7 (Tex. App.— Houston [1st Dist.] Apr. 2, 2019, no pet.) (mem. op.) (reversible error not to submit presentment question to the jury where presentment was a contested fact issue). Segregation of fees. If any attorney’s fees relate solely to a claim for which such fees are unrecoverable, a claimant must segregate recoverable from unrecoverable fees. Intertwined facts do not make unrecoverable fees recoverable; it is only when discrete legal services advance both a recoverable and unrecoverable claim that they are so intertwined that they need not be segregated. Tony Gullo Motors I, L.P. v. Chapa , 212 S.W.3d 299, 313–14 (Tex. 2006); see Kinsel v. Lindsey , 526 S.W.3d 411, 427 (Tex. 2017). A party, however, may recover attorney’s fees incurred in overcom ing defenses or counterclaims to a claim for which attorney’s fees are recoverable. Varner v. Cardenas , 218 S.W.3d 68, 69 (Tex. 2007). Segregation of fees may be

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