PJC General Negligence 2022

PJC 7.12

T HEFT L IABILITY

Predicate finding. Section 41.003 of the Civil Practice and Remedies Code requires a predicate finding before an award of exemplary damages may be made. Tex. Civ. Prac. & Rem. Code § 41.003. That predicate question for a conversion claim is found at PJC 7.11. If a defendant has requested a bifurcated trial pursuant to Tex. Civ. Prac. & Rem. Code § 41.009, the predicate question should be submitted in the first phase of the trial. By the supreme court’s March 15, 2011, effective April 1, 2011, and April 13, 2011, effective April 13, 2011, orders under Tex. R. Civ. P. 226a, the supreme court requires unanimity on the exemplary damages question and the applica ble liability question in cases governed by Tex. Civ. Prac. & Rem. Code § 41.003(d) that are filed after September 1, 2003. PJC 7.11 is conditioned accordingly. Multiple defendants. There should be a separate question and answer blank for each defendant against whom exemplary damages are sought. Tex. Civ. Prac. & Rem. Code § 41.006; Horizon Health Corp. v. Acadia Healthcare Co. , 520 S.W.3d 848, 874 (Tex. 2017); Norton Refrigerated Express, Inc. v. Ritter Bros. Co. , 552 S.W.2d 910, 913 (Tex. App.—Texarkana 1977, writ ref’d n.r.e.). In a case involving multiple defendants against whom exemplary damages are sought, the following instruction on unanimity may be substituted: Answer the following question regarding a defendant only if you unanimously answered “Yes” to Question ______ [ 7.11 ] regarding that defendant. Otherwise, do not answer the following question regarding that defendant. Multiple plaintiffs. In a case with two or more plaintiffs, the fact finder shall specify the amount of exemplary damages awarded to each plaintiff. See Seminole Pipeline Co. v. Broad Leaf Partners , 979 S.W.2d 730, 750–52 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (damages cap statute applies to recovery against individual defendant, not award to individual plaintiff). For an example of submission of appor tionment in a single question, see PJC 29.8. Prejudgment interest not recoverable. Prejudgment interest on exemplary dam ages is not recoverable. Tex. Civ. Prac. & Rem. Code § 41.007. Bifurcation. No predicating instruction is necessary if the court has granted a timely motion to bifurcate trial of the amount of punitive damages. See Tex. Civ. Prac. & Rem. Code § 41.009. If in the first phase of the trial the jury finds facts establishing a predicate for an award of exemplary damages, then a separate phase two jury charge should be prepared. In such a phase two jury charge, PJC 7.12 should be submitted with both PJC 1.3 and 1.4 instructions. Factors to consider in determining amount of award. The “factors to consider” listed in PJC 7.12 are from Tex. Civ. Prac. & Rem. Code § 41.011(a). Limits on conduct to be considered. When there is a significant risk that a jury may seek to punish a defendant for a constitutionally improper reason, the Due Pro-

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