pjc-family-2024-lib

B REACH OF D UTY BY P ERSONAL R EPRESENTATIVE

PJC 232.4

If damages are sought based on PJC 232.1 and that question is submitted as shown in PJC 232.1 (that is, with separate answers for each duty) rather than in broad form, the conditioning instruction should be worded as follows: If you answered “Yes” to any item in Question ____, then answer the following question. Otherwise, do not answer the following ques tion. Rewording question. In an appropriate case, the word estate in the question in PJC 232.4A and 232.4B should be changed to beneficiary or beneficiaries . Rewording question if PJC 232.1 liability question submitted. If damages are sought based on PJC 232.1 (breach of duty by personal representative—other than self-dealing) and that question is submitted as shown in PJC 232.1 (that is, with sepa rate answers for each duty) rather than in broad form, the words conduct inquired about in Question ____ in the question should be replaced with conduct about which you answered “Yes” in Question ____ . Causation standard: direct vs. consequential damages. Actual damages avail able for breach of fiduciary duty and fraud include both direct damages and conse quential damages. Direct damages compensate the plaintiff for loss that is conclusively presumed to have been foreseen by the defendant from his wrongful act, while consequential damages are not presumed to have been foreseen or to be the nec essary and usual result of the wrongful act. A plaintiff must plead and prove conse quential damages separately, premised on a finding that they proximately resulted from the defendant’s wrongful conduct. A proximate cause or foreseeability showing is appropriate only in the context of special or consequential actual damages, not in the context of direct actual damages. Lesikar v. Rappeport , 33 S.W.3d 282, 305 (Tex. App.—Texarkana 2000, pet. denied). See the Comments at PJC 115.4 and 115.5 in the current edition of Texas Pattern Jury Charges—Business, Consumer, Insurance & Employment . Separate submission of damages for different breaches. It may be necessary to submit separate damages questions for distinct breaches that give rise to different dam ages. 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

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