pjc-oil-and-gas-2022-lib

PJC 313.21

D AMAGES

COMMENT When to use. See explanatory note above. Because damages instructions in con tract suits are necessarily fact-specific, no true “pattern” instructions are given—only samples of some measures of general damages available in contract actions. This list is not exhaustive. The samples are illustrative only, adapted to a hypothetical fact situa tion, and must be rewritten to fit the particular damages raised by the pleadings and proof and recoverable under a legally accepted theory. 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 fully performed the contract. See Osoba v. Bassichis , 679 S.W.2d 119, 122 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.). For a comprehensive discussion of the theories of con tract damages, see Restatement (Second) of Contracts §§ 346–356 (1981). Measures generally alternative. The measures outlined here are generally alter natives, although some, particularly incidental damages, may be available in addition to one of the other measures, as may consequential damages (see PJC 313.22). Direct damages. Since Hadley v. Baxendale , 9 Exch. 341, 156 Eng. Rep. 145 (1854), contract damages have been divided into two categories: direct and conse quential. See Arthur Andersen & Co. v. Perry Equipment Corp. , 945 S.W.2d 812, 816 (Tex. 1997). Direct damages “are the necessary and usual result of the defendant’s wrongful act; they flow naturally and necessarily from the wrong.” El Paso Market ing, L.P. v. Wolf Hollow I, L.P. , 383 S.W.3d 138, 144 (Tex. 2012). Direct damages “compensate a plaintiff for a loss that is conclusively presumed to have been foreseen by the defendant as a usual and necessary consequence of the defendant’s act.” Daim lerChrysler Motors Co. v. Manuel , 362 S.W.3d 160, 179 (Tex. App.—Fort Worth 2012, no pet.). The general or direct nature of a type of damages is a determination of law to be made by the court. No question should be submitted concerning the fore seeability of direct damages; even if the evidence shows that such damages were not factually foreseeable to the parties, recovery is permitted if the damages are properly characterized by the court as direct rather than consequential. American Bank v. Thompson , 660 S.W.2d 831, 834 (Tex. App.—Waco 1983, writ ref’d n.r.e.). Even damages usually not considered recoverable may be deemed direct damages if they stem as a matter of law from the breach of the contract in question. See Cactus Utility Co. v. Larson , 709 S.W.2d 709, 716 (Tex. App.—Corpus Christi–Edinburg 1986), rev’d in part on other grounds , 730 S.W.2d 640 (Tex. 1987) (expert witness fee, for accountant, recoverable as direct damages for breach of agreement to provide accounting services). Benefit of the bargain and remedial damages. Whether difference in value or cost of repair is the proper measure of damages depends on the particular facts and cir cumstances in each case. Fidelity & Deposit Co. of Maryland v. Stool , 607 S.W.2d 17, 21 (Tex. App.—Tyler 1980, no writ).

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