| TABLE OF CONTENTS |
Page |
| I. Introduction |
1 |
| A. Purpose of Pattern Charges |
1 |
| B. Scope of Pattern Charges |
1 |
| C. Use of Accepted Precedents |
2 |
| D. Principles of Style |
2 |
| 1. Basic philosophy |
| 2. Use of broad form charges |
| 3. Definitions and instructions |
| 4. Placement of definitions and instructions in the charge |
| 5. Burden of proof |
| E. Comments and Citations of Authority |
3 |
| F. Using the Pattern Charges |
3 |
| |
| II. Modifying The Admonitory Instructions |
3 |
| |
| III. Highlighting The Testimony And Evidence |
4 |
| |
| IV. Dissolution Of Marriage |
4 |
| A. Informal (Common Law) Marriage |
4 |
| 1. Bifurcation |
| 2. Non-jury and jury trials in the same case |
| B. Divorce |
5 |
| |
| V. Characterization Of Property |
5 |
| |
| VI. Valuation Of Property |
6 |
| A. Fair Market Value |
6 |
| B. Owner’s Opinion As to Value |
6 |
| C. Goodwill |
6 |
| D. Valuation of Separate Property |
6 |
| |
| VII. Economic Contribution And Reimbursement |
7 |
| |
| VIII. Disregarding Corporate Form |
7 |
| |
| IX. Fraud |
7 |
| A. Actual Fraud |
7 |
| 1. Fraud against property |
| 2. Fraud against the person |
| B. Constructive Fraud |
8 |
| |
| X. Marital Agreements |
8 |
| |
| XI. Property Division - Factors |
8 |
| |
| XII. Attorney's Fees |
9 |
| |
| XIII. Torts And Contracts |
9 |
| A. Torts |
9 |
| B. Contracts |
9 |
| C. Contorts |
10 |
| |
| XIV. Damages |
10 |
| |
| XV. Procedural Bars And Defenses To Bringing Actions And Limiting Damages |
11 |
| |
| A. Divorce Cases |
10 |
| |
| B. Non-Divorce Cases |
11 |
| |
| C. Limitations of Actions |
11 |
| |
| D. Defense - The "Relation Back" Doctrine |
12 |
| |
| E. Defense - Aggravation of Pre-Existing Conditions |
12 |
| |
| F. Defense - Discovery Rule |
13 |
| |
| G. Defense - Continuing Tort |
13 |
| |
| XVI. Findings Of Fact And Conclusions Of Law |
14 |
| |
| Appendix 1- Know Your Judge |
| A. The Jurist Judge |
| B. The Principled Judge |
| C. The Intellectual Judge |
| D. The Independent Judge |
| E. The Lost Judge |
| F. The Interrupter Judge |
| |
| Appendix 2- When Are Broad-Form Jury Submissions not Feasible in Family Law Cases |
| A. Background History |
| B. The Experience with “Whenever Feasible.” |
| 1. Crown Life Insurance Company v. Casteel, 22 S.W. 3d 378 (Tex. 2000) |
| 2. Harris County v. Smith, 96 S.W. 3d (Tex. 2002) |
| 3. Golden Eagle Archery, Inc. v. Ronald Jackson, 116 S.W. 3d 757 (Tex. 2003) |
| C. Family Law Application of “Whenever Feasible.” |
| 1. Hypothetical |
| 2. Question |
| 3. Answer |
| 4. What is a proper submission under the hypothetical above? |
| 5. What additional causes of action are listed in the State Bar of Texas– Family Law Practice Manual (FLPM) on which a jury may be requested to be the finder-of-fact? |
| 6. Are fact questions raised requiring findings on factors the court can consider in making a division of the marital estate of the parties? |
| |
| Appendix 3– Charge to the Court |
Admonitory Instructions
|
1 |
| |
| 1. Explanatory statement |
| 2. Burden of proof |
| 3. Proximate cause |
| 4. Circumstantial evidence |
| 5. Privilege- adverse inference |
| 6. Terminology |
| |
| Existence of Informal Marriage |
3 |
| |
| 1. Instruction |
| 2. Questions |
| |
| Grounds for Divorce |
4 |
| |
| 1. Insupportability |
| 2. Cruel treatment |
| 3. Adultery |
| 4. Abandonment |
| 5. Living apart |
| 6. Question |
| |
| Characterization of Property |
5 |
| |
| 1. Separate and community property |
| 2. Inception of title |
| 3. Gift, devise and decent |
| 4. Tracing |
| 5. Property acquired on credit |
| 6. Property with mixed characterization |
| 7. Premarital agreement |
| 8. Partition and exchange agreement |
| 9. Agreement concerning income on property derived from separate property |
| 10. Agreement to convert separate property to community property |
| 11. Management, control and disposition of marital property |
| 12. Personal and marital property liability |
| 13. Question: separate property- one party claiming separate interest |
| 14. Question:separate property- both parties claiming separate interests |
| |
| Valuation of Property |
13 |
| |
| 1. Value |
| 2. Factors to be excluded for valuation of business |
| 3. Question: Value of property |
| |
| Economic Contribution |
14 |
| |
| 1. Instruction |
| 2. Question: equity at date of dissolution of marriage or disposition of property |
| 3. Question: equity at date of first economic contribution by contributing estate |
| 4. Question: reduction of debt secured by property owned before marriage |
| 5. Question: reduction of debt secured by property received by spouse after marriage by gift, devise or descent |
| 6. Question: reduction of debt incurred during marriage to acquire or improve property |
| 7. Question: reduction of debt incurred during marriage to acquire or improve separate property– separate-estate debt |
| 8. Question: capital improvements– other than by incurring debt |
| |
| Reimbursement |
18 |
| |
| 1. Instruction |
| 2. Questions |
| |
| Disregarding Corporate Form |
21 |
| |
| 1. Alter ego |
| 2. Unfair device |
| 3. Question: disregarding corporate identity of corporation owned entirely by spouses |
| |
| Fraud On Property |
24 |
| |
| 1. Confidence and trust relationship between spouses |
| 2. Actual fraud by spouse against community estate |
| 3. Question |
| 4. Actual fraud by spouse against separate estate |
| 5. Question |
| 6. Constructive fraud against community estate |
| 7. Question: fraud against non-spouse party |
| 8. Question |
| |
| Enforceability of Premarital Agreement. |
27 |
| |
| 1. Voluntariness |
| 2. Knowledge and disclosure |
| 3. Question |
| 4. Enforceability of partition or exchange agreement |
| 5. Voluntariness |
| 6. Knowledge and disclosure |
| 7. Question |
| 8. Enforceability of agreement concerning income or property derived from separate property |
| 9. Voluntariness |
| 10. Knowledge and disclosure |
| 11. Question |
| 12. Enforceability of agreement to convert separate property to community property |
| 13. Voluntariness |
| 14. Disclosure |
| 15. Question |
| |
| Factors for Division of Property |
32 |
| |
| 1. Question: fault in the break-up of the marriage |
| 2. Question: the benefits that the innocent spouse would have derived had the marriage continued |
| 3. Question: the disparity in the spouses’ income or earning capacities |
| 4. Question: each spouse’s business opportunities |
| 5. Question: differences in the spouses’ education |
| 6. Question: physical health and need for future support |
| 7. Question: relative ages of the parties |
| 8. Question: each spouse’s financial condition and obligations |
| 9. Question: the size of each spouse’s separate estate |
| 10. Question: the nature of the spouses’ property |
| 11. Question: the rights of the children of the marriage |
| 12. Question: waste of community assets |
| 13. Question: constructive fraud against the community |
| 14. Question: gifts by one spouse to the other |
| |
| Attorney’s Fees. |
37 |
| |
| 1. Instruction |
| 2. Question |
| |
| Intentional Infliction of Emotional Distress |
39 |
| |
| 1. Instruction |
| 2. Question |
| |
| Assault |
41 |
| |
| 1. Instruction |
| 2. Question |
| 3. Comment |
| |
| Transmitting Sexual Disease. |
43 |
| |
| 1. Instruction |
| 2. Question |
| |
| Intrusion on Seclusion. |
44 |
| |
| 1. Instruction |
| 2. Question |
| 3. Comment |
| |
| Interception of Communication |
45 |
| |
| 1. Instruction |
| 2. Question |
| 3. Actual damages |
| 4. False Imprisonment |
| 5. Malicious Prosecution |
| |
| Fraud on the Person |
50 |
| |
| 1. Question |
| 2. Intentional misrepresentation |
| 3. Failure to disclose when there is a duty to disclose |
| 4. Question: statute of limitations |
| 5. Question: negligent misrepresentation |
| 6. Comment |
| |
| Economic Duress |
52 |
| |
| Conversion |
54 |
| |
| Money Had and Received |
60 |
| |
| Tort Damages |
63 |
| |
| 1. Actual damages |
| 2. Exemplary damages |
| |
| Contract. |
66 |
| |
1. Question: Existence of Agreement
- Existence
- Authority
- Ratification
- Ambiguous provisions
- Time of compliance
- Offer and acceptance
- Withdrawal or revocation of offer
- Instruction on price
|
| 2. Question: Compliance with agreement |
3. Defenses
- Plaintiff’s material breach (failure or consideration)
- Anticipatory repudiation
- Waiver
- Equitable estoppel
- Duress
- Undue influence
- Mutual mistake of fact
- Mutual mistake of fact– serivenor’s error
- Novation
- Accommodation
- Accord and satisfaction
- Mental capacity
|
4. Substantial Reliance
- Question
|
| 5. Question: Quantum Meruit |
6. Damages
- Loss of the benefit of the bargain/services
- Remedial damages
- Loss of contractual profit
- Loss of contractual profit plus expenses incurred before breach
- Damages after mitigation
- Mitigation expenses
- Incidental damages
- Defensive Instruction on Mitigation– Contract Damages
- Consequential damages– contracts
- Promissory estoppel– reliance damages
- Question on quantum meruit recovery
- Exemplary damages
|
| |
| Interference with Existing and Prospective Contract. |
81 |
| |
| 1. Question: Intentional interference with existing contract |
| 2. Question: Defense of legal justification |
| |
| Piercing the Corporate Veil– Non-Spouse Creditor |
82 |
| |
| 1. Question |
2. Instructions
- Alter ego
- Sham to perpetuate a fraud
- Evasion of existing obligation
- Circumvention of a statute
- Protection of crime or investigation of wrong
- Monopoly
|
| Appendix 4 – Attorneys Fees Affidavit |
| Appendix 5 – Finding of Fact and Conclusions of Law |
