pjc-family-2024-lib

PJC 232.4

B REACH OF D UTY BY P ERSONAL R EPRESENTATIVE

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cases); see also Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc. , 962 S.W.2d 507, 514, 530 (Tex. 1998), superseded by statute on other grounds , Tex. Fin. Code §304.1045 (reconciling equitable prejudgment interest with statutory pre judgment interest). Therefore, separation of past and future damages is required. Elements considered separately. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 770 (Tex. 2002), provides an instruction for cases involving undefined or potentially overlapping categories of damages. In those cases, the following language should be substituted for the instruction to consider each element separately: Consider the following elements of damages, if any, and none other. You shall not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Parallel theories. If the breach of fiduciary duty cause of action is only one of several theories of recovery submitted in the charge and any theory has a different legal measure of damages to be applied to a factually similar claim for damages, a sep arate damages question for each theory may be submitted and the following additional instruction may be included earlier in the charge: In answering questions about damages, answer each question sep arately. Do not increase or reduce the amount in one answer because of your answer to any other question about damages. Do not specu late about what any party’s ultimate recovery may or may not be. Any recovery will be determined by the court when it applies the law to your answers at the time of judgment. Prejudgment interest. Instructing the jury not to add interest is suggested because prejudgment interest, if recoverable, will be calculated by the court at the time of judgment. If interest paid on an obligation or interest that should have been earned on an estate asset is claimed as an element of damages, it may be necessary to modify the instruction on interest.

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