PJC General Negligence 2022

T HEFT L IABILITY

PJC 7.10

COMMENT When to use. See explanatory note above. Because damages instructions in con version suits under the Texas Theft Liability Act are necessarily fact-specific, no true “pattern” instructions are given—only samples of some measures of general damages available in such actions. This list is not exhaustive. The samples are illustrative only, adapted to a hypothetical fact situation, and must be rewritten to fit the particular dam ages raised by the pleadings and proof and recoverable under a legally accepted the ory. The instructions should be drafted in an attempt to make the plaintiff factually whole but not to put the plaintiff in a better position than he would have been in had the defendant not appropriated the plaintiff’s property. The following are examples of damages that have been recovered. Market value. Prewitt v. Branham , 643 S.W.2d 122, 123 (Tex. 1982) (one mea sure of damages for conversion is market value of converted items at time and place of conversion). Intrinsic value. International–Great N.R. v. Casey , 46 S.W.2d 669, 670 (Tex. Comm’n App. 1932, holding approved) (intrinsic value of property may be recovered where there is no market or replacement value for the property); see also Strickland v. Medlen , 397 S.W.3d 184, 192 (Tex. 2013) (when dog’s market value cannot be ascer tained, correct measure of damages is actual value). Loss of use. Luna v. North Star Dodge Sales, Inc. , 667 S.W.2d 115, 119 (Tex. 1984) (loss-of-use damages may be recovered for period of time before property was returned to owner). Note: the plaintiff may not recover both loss of use and loss of rental value for the same time period. Lost profits. Winkle Chevy-Olds-Pontiac, Inc. v. Condon , 830 S.W.2d 740, 746 (Tex. App.—Corpus Christi–Edinburg 1992, writ dism’d) (lost profits can be recovered where defendant has notice of them). Travel expenses. Clifton v. Jones , 634 S.W.2d 883, 887 (Tex. App.—El Paso 1982, no writ) (plaintiff can recover expenses incurred in traveling to inspect property after conversion). Lost income from appropriated business contacts and files. The plaintiff can recover the income lost from clients who had their tax returns prepared by a former coworker who unlawfully appropriated the plaintiff’s customer files and customer lists and solicited their business. See Schmader v. Butschek , No. 05-15-00278-CV, 2016 WL 4119474, at *3 (Tex. App.—Dallas July 29, 2016, no pet.). Lost rental income. The plaintiff can recover the cost of purchasing the appropri ated property as well as the lost rental value. Southwest Grain Co. v. Pilgrim’s Pride S.A. de C.V. , No. 13-07-00557-CV, 2010 WL 2638483, at *5 (Tex. App.—Corpus Christi–Edinburg June 28, 2010, no pet.). Note: the plaintiff may not recover both loss of use and loss of rental income for the same time period.

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