section 41.008 exemplary damages cap in Texas

2014We have previously held in a case involving a cap under the labor code that “[a]s a general rule, where maximum damages are provided in statutes in Texas, and a defendant wants to rely on the cap, it is considered a defense that must be pleaded and proved.” O’Dell v. Wright, 320 S.W.3d 505 , 515-16 (Tex. App.––Fort Worth 2010, pet. denied) (citing section 41.008 and Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 , 896-97, 904-05 (Tex. 2000), in which the supreme court held that a party’s mistakenly pleading the wrong section number of the cap as an affirmative 23 defense did not preclude

2010P. 94; Horizon/CMS Healthcare Corp. v. Auld , 34 S.W.3d 887, 896-97, 904-05 (Tex. 2000)); see also Marin v. IESI TX Corp. , No. 01-08-00539-CV, 2010 Tex. App. LEXIS 981 , at *45 (Tex. App.-Houston [1st Dist.] Feb. 11, 2010, no pet. h.) (mem. op.) (noting that section 41.008's exemplary damages cap is an affirmative defense that must be pleaded); Wackenhut Corr.

2010Corp. v. De La Rosa , 305 S.W.3d 594, 651 (Tex. App.-Corpus Christi 2009, no pet.) (same).

2010Corp. v. de la Rosa, 305 S.W.3d 594, 651 (Tex.App.-Corpus Christi 2009, no pet.) (same).

2009Horizon/CMS Healthcare Corp. v. Auld , 985 S.W.2d 216, 233 (Tex. App.-Fort Worth 1999), rev'd in part on other grounds , 34 S.W.3d 887 (Tex. 2000).

2009Horizon/CMS Healthcare Corp. v. Auld, 985 S.W.2d 216, 233 (Tex.App. *652 Fort Worth 1999), rev’d in part on other grounds, 34 S.W.3d 887 (Tex.2000).

2007See Hall v. Diamond Shamrock Refining Co. , 82 S.W.3d 5, 24 (Tex. App.--San Antonio 2001) (holding party seeking recovery of exemplary damages is entitled to introduce and obtain jury findings as to the amount of economic and noneconomic damages in order to apply cap in section 41.008 of the Texas Civil Practice and Remedies Code), rev ' d on other grounds , 168 S.W.3d 164 (Tex. 2005).

2004Code Ann. § 41.008 (Vernon Supp.2004); see Hall v. Diamond Shamrock Refining Co., 82 S.W.3d 5, 24 (Tex.App.-San Antonio 2001, pet. granted) (jury needs evidence of compensatory damages to calculate punitive damages under § 41.008).

2010See Madison v. Williamson , 241 S.W.3d 145, 161 (Tex. App.--Houston [1st Dist.] 2007, pet. denied) ("Before a court will apply the exception to the statutory damage caps in section 41.008(c), a plaintiff must obtain jury findings that the defendant violated one of the criminal code provisions listed in the statute, and that the violation was committed knowingly or intentionally.").

2010See Madison v. Williamson, 241 S.W.3d 145, 161 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (“Before a court will apply the exception to the statutory damage caps in section 41.008(c), a plaintiff must obtain jury findings that the defendant violated one of the criminal code provisions listed in the statute, and that the violation was committed knowingly or intentionally.”).

2026“A plaintiff can avoid [this] cap by pleading and proving the defendant intentionally or knowingly engaged in felonious conduct under criminal statutes expressly excluded from the cap under section 41.008(c).” Zorrilla, 469 S.W.3d at 157 .

2021In Zorilla, the Texas Supreme Court determined that, because the exemplary damages cap in section 41.008(b) of the Civil Practice and Remedies Code “automatically applies and its scope is delineated by statute, there is little concern that plaintiffs will be genuinely surprised by its application in any given case.” Id. at 157 .

2002Id. (citing Seminole Pipeline, 979 S.W.2d at 751 ).

2002Id. (citing Seminole Pipeline, 979 S.W.2d at 751 ).

2007Code Ann. § 12.34 (Vernon 2003); Id. § 32.46 (Vernon Supp. 2006); see, e.g., Myers v. Walker , 61 S.W.3d 722, 732 (Tex. App.--Eastland 2001, pet. denied) (holding that exemplary-damages cap in section 41.008 of Civil Practice and Remedies Code did not apply because defendant's fraudulent conduct fell within exception for securing execution of document by deception (section 32.46 of Texas Penal Code), when defendant's false representations contained within contract induced parties to enter into agreement).

2004Myers, 61 S.W.3d at 732 .

2026Again, “our interpretation begins with the statute’s text,” Third Coast Servs., 726 S.W.3d at 206, and we “presume the Legislature chooses a statute’s language with care, including each word chosen for a purpose, while purposefully omitting words not chosen,” id. (quoting Rogers v. Bagley, 623 S.W.3d 343 , 352 (Tex. 2021)). 9 Moreover, the Kuceras did not object to the instruction that predicated the jury’s gross-negligence finding on an affirmative answer to the intentional- nuisance question.

2026Again, “our interpretation begins with the statute’s text,” Third Coast Servs., 726 S.W.3d at 206, and we “presume the Legislature chooses a statute’s language with care, including each word chosen for a purpose, while purposefully omitting words not chosen,” id. (quoting Rogers v. Bagley, 623 S.W.3d 343 , 352 (Tex. 2021)). 9 Moreover, the Kuceras did not object to the instruction that predicated the jury’s gross-negligence finding on an affirmative answer to the intentional- nuisance question.

2017Id. § 41.008(c) (listing seventeen penal code provisions); McCullough v. Scarbrough, Medlin & Associates, Inc., 435 S.W.3d 871, 912 (Tex. App.—Dallas 2014, pet. denied).

2015MAN Engines, 434 S.W.3d at 136 (“Rule 94’s purpose ‘is to give the opposing party notice of the defensive issue to be tried.’ It is a rule of fairness that requires the defendant to identify affirmative defenses, involving facts distinct from the elements of the plaintiffs claim, so that the plaintiff may reasonably prepare to rebut or explain them.”) (quoting Land Title Co. of Dallas, Inc. v. F.M.

2015We must therefore determine whether the exemplary damages cap in section 41.008(b) falls within Rule 94’s residual clause, which extends the affirmative-pleading requirement to “any other matter constituting an avoidance or affirmative defense.” See id.

2014See THI of Tex. at Lubbock I, LLC v. Perea, 329 S.W.3d 548, 588 (Tex. App.––Amarillo 2010, pet. denied). 15 In Auld, we noted the nature of the application of the cap as a partial avoidance of the total exemplary damages that could be awarded; thus, we concluded that such a cap is in the nature of an affirmative defense. 985 S.W.2d at 233; see Tex. R.

2007See Hall v. Diamond Shamrock Refining Co. , 82 S.W.3d 5, 24 (Tex. App.--San Antonio 2001) (holding party seeking recovery of exemplary damages is entitled to introduce and obtain jury findings as to the amount of economic and noneconomic damages in order to apply cap in section 41.008 of the Texas Civil Practice and Remedies Code), rev ' d on other grounds , 168 S.W.3d 164 (Tex. 2005).

2005Therefore, “it follows that economic damages arising from a breach of contract may not be used to increase the statutory cap under section 41.008.” Signal Peak Enters. of Tex., Inc. v. Bettina Invs., Inc. , 138 S.W.3d 915, 928 (Tex. App.–Dallas 2004, no pet. h.).

2004Co. v. Davis, 904 S.W.2d 663, 665 (Tex.1995) (breach of contract alone will not support punitive damages; existence of independent tort must be established), and it follows that economic damages arising from a breach of contract may not be used to increase the statutory cap under section 41.008.