PJC General Negligence 2022

PJC 7.9

T HEFT L IABILITY

COMMENT When to use. PJC 7.9 should be predicated on a ‘‘Yes” answer to PJC 7.4 and may be adapted for use in most conversion cases by the addition of appropriate instruc tions setting out legally available measures of damages. See PJC 7.10. If only one measure of damages is supported by the pleadings and proof, the measure may be incorporated into the question. Actual damages. In an action for conversion, the plaintiff can seek the return of the property plus actual damages. See Winkle Chevy-Olds-Pontiac, Inc. v. Condon , 830 S.W.2d 740, 746 (Tex. App.—Corpus Christi–Edinburg 1992, writ dism’d). At com mon law, actual damages are either direct or consequential. Direct damages are the necessary and usual result of the defendant’s wrongful act; they flow naturally and necessarily from the wrong. Direct damages compensate the plaintiff for the loss that is conclusively presumed to have been foreseen by the defendant from its wrongful act. Consequential damages result naturally, but not necessarily, from the defendant’s wrongful act. Under the common law, consequential damages need not be the usual result of the wrong but must be foreseeable and must be directly traceable to the wrongful act and result from it. See Houston Livestock Show & Rodeo, Inc. v. Ham rick , 125 S.W.3d 555, 582 (Tex. App.—Austin 2003, no pet.). If consequential damages are sought, that element should be submitted with the additional instruction that the element of damages was “a natural, probable, and fore seeable consequence of Don Davis ’s theft of the property.” See the current edition of State Bar of Texas, Texas Pattern Jury Charges—Business, Consumer, Insurance & Employment PJC 115.5. Elements of damages submitted separately. The Committee generally recom mends that multiple elements of damages be separately submitted to the jury. Harris County v. Smith , 96 S.W.3d 230, 233–34 (Tex. 2002) (broad-form submission of multi ple elements of damages may lead to harmful error if there is a proper objection rais ing insufficiency of the evidence to support one or more of the elements submitted); see also Tex. Civ. Prac. & Rem. Code § 41.008(a) (“In an action in which a claimant seeks recovery of damages, the trier of fact shall determine the amount of economic damages separately from the amount of other compensatory damages.”). Separating economic from noneconomic damages is required to allow the court to apply the limits on recovery of exemplary damages based on economic and noneconomic damages as required by Tex. Civ. Prac. & Rem. Code § 41.008(b). Further, “[p]rejudgment interest may not be assessed or recovered on an award of future damages.” Tex. Fin. Code § 304.1045 (wrongful death, personal injury, or prop erty damage cases); but see In re Xerox Corp. , 555 S.W.3d 518, 531 & n.73 (Tex. 2018) (prejudgment interest typically cannot be imposed on future-damages award, but legislature can provide differently by statute); see also Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc. , 962 S.W.2d 507, 514, 530 (Tex. 1998) superseded

112