On May 01, 2019 a
Motion-Secondary
was filed
involving a dispute between
Zion Builders Limited Liability Company D B A Zion Builders,
and
Eric Garduno A K A Eric Garduno,
Garduno, Karen,
for Other Civil Case >$100,000 but <$200,000
in the District Court of Montgomery County.
Preview
CAUSE NO. 19-05-06051
ZION BUILDERS LIMITED IN THE DISTRICT COURT OF
LIABILITY COMPANY D/B/A ZION
BUILDERS
Plaintiff, Counter-Defendant
MONTGOMERY COUNTY, TEXAS
ERIK GARDUNO A/K/A ERIC
GARDUNO AND KAREN GARDUNO
Defendants, Counter- Gardunos. 457th JUDICIAL DISTRICT
DEFENDANTS/COUNTER PLAINTIFFS GARDUNOS’
PROPOSED CHARGE OF THE COURT
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants/Counter-Plaintiffs Gardunos Erik Garduno a/k/a Eric Garduno and Karen
Garduno Gardunos”) respectfully submit their Proposed Jury Instructions, Definitions, and
Questions.
The Gardunos do not concede that any claims or defenses asserted by Plaintiff or Counter
Defendants are supported by legally sufficient evidence or authority to warrant presenting such
claims to a jury.
The Gardunos reserve the right to move for an instructed verdict after the evidence has
been presented, to object to jury definitions, instructions, or questions submitted by Plaintiff or
Counter-Defendants, to submit additional or modified instructions or questions to conform to the
law and the evidence adduced at the trial of this matter, and to move for judgment notwithstanding
the verdict, if necessary.
The Gardunos further reserve the right to object to the submission of any and all questions,
instructions, and definitions that the Court may give to the jury, including those set forth below.
The Gardunos reserve the right to otherwise exercise all other rights they possess at or after
trial as permitted by the Texas Rules of Civil Procedure.
Respectfully submitted,
Johnson & Associates
Attorneys at Law, PLLC
By: /s/ Justin M. Kornegay
Christopher L. Johnson
Texas State Bar No. 24069999
chris@Johnson Attorneys.com
Justin M. Kornegay
Texas State Bar No. 24077668
justin@Johnson Attorneys.com
Caroline E. Bossier
Texas State Bar No. 24110669
Caroline@Johnson Attorneys.com
303 East Main Street, Suite 100
League City, Texas 77573
Main:281
Fax: 409
ATTORNEYS FOR DEFENDANTS
/ COUNTER PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served upon
the following counsel of record by certified mail, return receipt requested, facsimile, and/or
electronic service on this Monday, March 22, 2021
Via Electronic Service:
Joseph K. Watts
Hanszen Laporte LLP
14201 Memorial Dr.
Houston, Texas 77079
jwatts@hanszenlaporte.com
Via Electronic Service:Tylerlogeman@gmail.com
Tyler Logeman
Zion Builders d/b/a Zion Builders
P.O. Box 1113
Montgomery, Texas 77356
Via RegularMail
Tyler Logeman
Zion Builders d/b/a Zion Builders
P.O. Box 1113
Montgomery, Texas 77356
/s/ Justin M. Kornegay
Justin M. Kornegay
COURT S INSTRUCTIONS TO THE JURY
RELIMINARY URY NSTRUCTION
MEMBERS OF THE JURY:
fter the closing arguments you will go to the jury room to decide the case answer the
questions that are attached and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.
Remember my previous instructions: Do not discuss the case with anyone else either in
person or by any other means. Do not do any independent investigation about the case or conduct
any research. Do not look up any words in dictionaries or on the Internet. Do not post information
about the case on the Internet. Do not share any special knowledge or experiences with the other
jurors. Do not use your phone or any other electronic device during your deliberations for any
reason. I will give you a number where others may contact you in case of an emergency.
Any notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult them during deliberations but do not show or read your notes to
your fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely
on your independent recollection of the evidence and not be influenced by the fact that another
juror has or has not taken notes.
You must leave your notes with the bailiff when you are not deliberating. The bailiff will
give your notes to me promptly after collecting them from you. I will make sure your notes are
kept in a safe secure location and not disclosed to anyone. After you complete your deliberations
the bailiff will collect your notes. When you are released from jury duty the bailiff will promptly
destroy your notes so that nobody can read what you wrote.
This case is submitted to you by asking questions about the facts which you must decide
from the evidence you have heard in this trial. You are the sole judges of the credibility of the
witnesses and the weight to be given their testimonybut in matters of law you must be governed
by the instructions in this charge. In discharging your responsibility on this jury you will observe
all the instructions which have previously been given you. I shall now give you additional
instructions which you should carefully and strictly follow during your deliberations.
Do not letbias prejudice or sympathy play any part in your decision.
Base your answers only on the evidence admitted in court and on the law that is in these
instructions and questions. Do not consider or discuss any evidence that was not admitted
in the courtroom.
You are to make up your own minds about the facts. You are the sole judges of the
credibility of the witnesses and the weight to give their testimony. But on matters of law
you must follow all of my instructions.
When words are used in this charge in a sense that varies from the meaning commonly
understood you are given a proper legal definition which you are bound to accept in place
of any other meaning.
All the questions and answers are important. No one should say that any question or answer
is not important.
Answer yes or to all questions unless you are told otherwise. A yes answer must
be based on a preponderance of the evidence unless you are told otherwise. Whenever a
question requires an answer other than yes or your answer must be based on a
preponderance of the evidenceunless you are told otherwise.
The term preponderance of the evidence means the greater weight of credible evidence
presented in this case. If you do not find that a preponderance of the evidence supports a
yes answer then answer A preponderance of the evidence is not measured by the
number of witnesses or by the number of documents admitted in evidence. For a fact to be
prove by a preponderance of the evidence you must find that the fact is more likely true
than not true.
A fact may be established by direct evidence or by circumstantial evidence or both. A fact
is established by direct evidence when proved by documentary evidence or by witnesses
who saw the act done or heard the words spoken. A fact is established by circumstantial
evidence when it may be fairly and reasonably inferred from other facts proved.
Do not decide who you think should win before you answer the questions and then just
answer the questions to match your decision. Answer each question carefully without
considering who will win. Do not discuss or consider the effect your answers will have.
You will not decide the answer to a question by lot or by drawing straws or by any other
method of chance. Do not return a quotient verdict. A quotient verdict means that the
jurors agree to abide by the result to be reached by adding together each juror s figures and
dividing by the number of jurors to get an average. Do not do any trading on your answers;
that is one juror should not agree to answer a certain question one way if others will agree
to answer another question another way.
Some questions might ask you for a dollar amount. Do not agree in advance to decide on
a dollar amount by adding up each juror s amount and then figuring the average.
In answering questions about damages answer each question separately. Do not increase
or reduce the amount in one answer because of your answer to any other question about
damages. Do not speculate 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.
The answers to the questions must be based on the decision of at least ten of the twelve
urors. The same ten jurors must agree on every answer. Do not agree to be bound by a
vote of anything less than ten jurorseven if it would be a majority.
As I have said before if you do not follow these instructions you will be guilty of juror
misconduct and I might have to order a new trial and start this process over again. This would
waste your time and the parties money and would require the taxpayers of this county to pay for
another trial. If a juror breaks any of these rules tell that person to stop and report it to me
immediately.
After you retire to the jury roomyou will select your own presiding juror. The first thing
the presiding juror will do is to have this complete charge read aloud and then you will deliberate
upon your answers to the questions asked.
It is the duty of the presiding juror
to preside during your deliberations;
to see that your deliberations are conducted in an orderly manner and in accordance with
the instructions in this charge;
to write out and hand to the bailiff any communications concerning the case that you desire
to have delivered to the judge;
to vote on the questions;
to write your answers to the questions in the spaces provided; and
to certify to your verdict in the space provided for the presiding juror s signature or to
obtain the signatures of all the jurors who agree with the verdict if your verdict is less than
unanimous.
Should anyone attempt to talk to you about the case before the verdict is returned whether
at the courthouse at your homeor elsewhereplease inform the judge of this fact.
When you have answered all the questions you are required to answer under the
instructions of the judge and your presiding juror has placed your answers in the spaces provided
and signed the verdict as presiding juror or obtained the signatures you will inform the bailiff at
the door of the jury room that you have reached a verdictand then you will return into court with
your verdict
Authority Tex. R. Civ. P. 226a; Texas Pattern Jury Charges Business ConsumerInsurance and
Employment §100.3A (201 Texas Pattern Jury ChargesGeneral Negligence Intentional
Personal Torts & Workers Compensation (201
Given:
Refused:
Modified:
JUDGE PRESIDING
ARDUNO ROPOSED EFINITIONS
DEFINITION NO. 1
The terms Counter Plaintiffs and/or “Gardunos” mean Defendants/Counter Plaintiffs Erik
Garduno a/k/a Eric Garduno and Karen Garduno
Given:
Given as Modified:
Refused:
DEFINITION NO.
The term Plaintiff and/or “Zion Builders mean Plaintiff/Counter Defendant Zion Builders,
LLC d/b/a Zion Builders
Given:
Given as Modified:
Refused:
DEFINITION NO.
The term “Logeman” mean Counter Defendant Tyler Logeman
Given:
Given as Modified:
Refused:
DEFINITION NO.
The term “Counter Defendants shall mean collectively mean Plaintiff/Counter Defendant Zion
Builders, LLC d/b/a Zion Buildersand Counter Defendant Tyler Logeman
Given:
Given as Modified:
Refused:
DEFINITION NO.
The term Home means the house located at 28792 ShirleyCourt, Magnolia, Texas 77355
Given:
Given as Modified:
Refused:
DEFINITION NO.
The term Agreement means the Residential Construction Agreement for the Home.
Given:
iven as Modified:
Refused:
DEFINITION NO.
The term Plans shall mean the schematic drawings and specifications, including any
amendments, which have beenincorporated into the Residential Construction Agreement.
Given:
Given as Modified:
Refused:
DEFINITION NO.
The term Work shall mean the work labor services materials and other related activities
performed for the Home s construction under the Residential Construction Agreement and
subsequent attempts of repairs
Given:
Given as Modified:
Refused:
DEFINITION NO.
The term construction defect mean s:
the failure of the design construction or repair of a home to meet the applicable warranty
and building and performance standards duringthe applicable warranty period; and
any physical damage to the home or real property on which the home is affixed that is
proximately caused by that failure.
Given:
Given as Modified:
Refused:
The above and foregoing Definitions were duly and reasonably requested by Gardunos and
presented to the Court and were Given Modified and Given as Described or Refused as
indicated above.
JUDGE PRESIDING
Former § 401.004 of the Texas Property Code; Tex. Prop. Code §27.001(4); D & M Marine Inc. v. Turner 409
S.W.3d 693 697 (Tex. App.Houston [1st Dist.] 2013 pet. denied).
NEGLIGENCE
ARDUNOS ROPOSED UESTION
Did the negligence if any of those named Counter Defendants below proximate cause of the
occurrencein questionor injuryto the Home
You are instructed that Negligence means failure to use ordinary care that is failing to do
that which a person of ordinary prudence would have done under the same or similar
circumstances or doing that which a person of ordinary prudence would not have done under
the same or similar circumstances.
You are instructed that Ordinary are means that degree of care that would be used by a
person of ordinary prudence under the same or similar circumstances.
You are instructed that Proximate ause means a cause that was a substantial factor in
bringin about an injury or occurrence, and without which cause such injury or occurrence
would not have occurred. In order to be a proximate cause, the act or omission complained of
must be such that a person using ordinary care would have foreseen that the injury or
occurrence, or some similar injury or occurrence, might reasonably result therefrom. There
may be more than one proximatecause of an injury or occurrence
Answer Yes or for each of the following:
Counter Defendant Logeman
Plaintiff/Counter Defendant ZionBuilders
The above and foregoing Gardunos Proposed Question No. was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGE PRESIDING
PJC 4.1.
PJC 2.1.
PJC 2.1.
PJC 2.4.
ARDUNOS ROPOSED UESTION
If you answered Yes to Question No. then answer Question No. . Otherwise do not
answer Question No.
For each person you found caused or contributed to cause the occurrence in question or injury
to the Homefind the percentage of responsibility attributable to each:
You are instructed to assign percentages of responsibility only to those you found caused or
contributed to cause the occurrence in question or injury to the Home. The percentages you
find must total 100 percent. The percentages must be expressed in whole numbers. The
percentage of responsibility attributable to any one is not necessarily measured by the number
of acts or omissions found. The percentage attributable to any one need not be the same
percentage attributed to that one in answering another question.
Counter fendant Logeman
Plaintiff/Counter Defendant ZionBuilders
Total
The above and foregoing Gardunos Proposed Question No. was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGE PRESIDING
PJC 4.3; PJC 2.4.
PJC 4.3.
ARDUNOS ROPOSED UESTION
If you answered Yes to Question No. then answer Question No. . Otherwise do not answer
Question No.
Do you find by clear and convincing evidence that the cause of the occurrence in question or injury
to the Home resulted fromthe gross negligence of Counter Defendant Tyler Logeman
You are instructed that Clear and onvincing vidence means the measure or degree of
proof that produces a firm belief or conviction of the truth of the allegations sought to be
established.
You are instructed that Gross egligence means an act or omission by Counter Defendant
Tyler Logeman
which when viewed objectively from the standpoint of Counter Defendant Tyler Logeman
at the time of its occurrence involves an extreme degree of risk considering the probability
and magnitude of the potential harm to others; and
of which Counter Defendant Tyler Logem had actual subjective awareness of the risk
involved but nevertheless proceeds with conscious indifference to the rights safety or
welfare of others.
Answer Yes or
The above and foregoing Gardunos Proposed Question No. was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGE PRESIDING
NEGLIGENT MISREPRESENTATION
PJC 4.2C.
PJC 4.2C.
ARDUNOS ROPOSED UESTION
Did Counter Defendant Tyler Logeman make a negligent misrepresentation on which the
Gardunosjustifiably relied? 10
You are instructed that Negligent isrepresentation occurs when
A party makes a representation in the course of his business or in a transaction in which he
has a pecuniary interestand
The representation supplies false information for the guidance of others in their business
and
The party making the representation did not exercise reasonable care or competence in
obtaining or communicating the information. 11
Answer “Yes” or “No”: ______________
The above and foregoing Gardunos Proposed Question No. was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGE PRESIDING
PJC 105.19
PJC 105.19.
DECEPTIVE TRADE PRACTICES ACTUNCONSCIONABILITY
and BREACH OF WARRANTIES
ARDUNOS ROPOSED UESTION
Did any of the Counter Defendants engage in any false misleading or deceptive act or practice
that the Gardunos relied on to their detriment and that was a producing cause of damages to the
Gardunos 12
You are instructed that Producing cause means a cause that was a substantial factor in
bringing about the damagesif any and without which the damages would not have occurred.
There may be more than one producing cause. 13
You are instructed that False misleading or deceptive act or practice means any of the
following:
Representing that a warranty confers or involves rights or remedies whi it does not have
or involve; or
Representing that goods or services have sponsorship approval characteristics uses or
benefits which they do not have; or
Representing that work or services have been performed on or parts replaced in goods
when the work or services were not performedor the parts replaced; or
Failure to disclose information concerning goods or services which was known at the time
of the transaction if such failure to disclosure such information was intended to induce the
consumer into a transaction into which the consumer would not have entered had the
information been disclosed. 14
15
You are instructed that Goods includes real property
Answer Yes or for each Counter Defendant separately.
Counter Defendant Logeman
Plaintiff/Counter Defendant ZionBuilders
PJC 102.1.
PJC 102.1.
See Deceptive Trade Practices Act §17.46(b).
See DTPA §17.45(1); see also PJC 102.3.
The above and foregoing Gardunos Proposed Question No. was duly and reasonably
requested bythe Gardunos and presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGE PRESIDING
ARDUNOS ROPOSED UESTION
Didany the Counter Defendantsbelow engage in any unconscionable action or course of action
that was a producing cause of damages tothe Gardunos 16
You are instructed that Producing ause means a cause that was a substantial factor in
bringing about the damagesif any and without which the damages would not have occurred.
There may be more than one producing cause. 17
You are instructed that an nconscionable ction or ourse of ction is an act or practice
that to a consumer s detriment takes advantage of the lack of knowledgeability experience
or capacity of the consumer to a grossly unfair degree. 18
Answer Yes or for each Counter Defendant separately.
Counter Defendant Logeman
Plaintiff/Counter Defendant ZionBuilders
The above and foregoing Gardunos Proposed Question No. was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGE PRESIDING
PJC 102.7.
PJC 102.1; see also Deceptive Trade Practices Act §17.50(a)(3).
See Deceptive Trade Practices Act §17.45(5) see also PJC 102.7.
ARDUNOS ROPOSED UESTION
If you answered Yes to Question or then answer th uestion o. . Otherwise do not
answer th uestion o.
Did any of the Counter Defendants engage in any false misleading deceptive act or practice
and/orany unconscionable action or course of action knowingly and/or intentionally? 19
You are instructed that knowingly means actual awareness at the time of the conduct of the
falsity deception or unfairness of the conduct in question or actual awareness of the conduct
constituting a failure to comply with a warranty. Actual awareness may be inferred where
bjective manifestations indicate that a person acted with actual awareness. 20
You are instructed that intentionally means actual awareness of the falsity deception
or unfairness of the conduct in question actual awareness of the conduct constituting
a failure to comply with a warrantycoupled with the specific intent that the consumer
act in detrimental reliance on the falsity or deception or detrimental ignorance of the
unfairness. Specific intent may be inferred where objective manifestations indicate that
a person acted intentionally or may be inferred from facts showing that the person acted
with such flagrant disregard of prudent and fair business practices that the person
should be treated as having acted intentionally. 21
You are instructed that producing cause means an efficientexciting or contributing
cause that in a natural sequence produced the damages if any. There may be more
than one producing cause.
In answering this question consider only the conduct that you have found was a producing
cause of damages to the Gardunos
Answer Yes or for each Counter Defendant separately.
Counter Defendant Logeman
Plaintiff/Counter Defendant ZionBuilders
PJC 102.21.
PJC 102.21.
See Brown v. American Transfer & Storage Co. 601 S.W.2d 931 937 (Tex. 1980) See also PJC 102.21; DTPA §
17.45(13).
The above and foregoing Gardunos Proposed Question No. was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGE PRESIDING
ARDUNOS ROPOSED UESTION
any below Counter Defendant failure if any to comply with a warranty a producing cause
of damages toGardunos 22
You are instructed that Producing ause means a cause that was a substantial factor in
bringing about the damagesif any and without which the damages would not have occurred.
There may be more than one producing cause. 23
You are instructed that failure to comply with a warranty means any of the following:
Failing to comply with an express warranty; 24
An xpress arranty is any affirmation of fact or promise made by any of the Counter
Defendants that relates to the Home and becomes part of the basis of the bargain. It is not
necessary that formal words such as warrant or guarantee be used or that there be a
specific intent to make a warranty.
Failing to perform services in a good and workmanlike manner. 25
ood and orkmanlike anner is that quality of work performed by one who has the
knowledge training or experience necessary for the successful practice of a trade or
occupation and performed in a manner generally considered proficient by those capable of
judging such work.
Answer Yes or for each Counter Defendant separately.
Counter Defendant Logeman
Plaintiff/Counter Defendant ZionBuilders
PJC 102.8; see also Deceptive Trade Practices Act §17.50(a)(2); Tex. UCC §§ 2.313 .315.
PJC 102.1; see also Deceptive Trade Practices Act §17.50(a)(3).
PJC 102.9; Deceptive Trade Practices Act §17.50(a)(2); Tex. UCC §2.313.
PJC 102.12; Deceptive Trade Practices Act §17.50(a)(2).
The above and foregoing Gardunos Proposed Question No. was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGE PRESIDING
BREACH CONTRACT
ARDUNOS ROPOSED UESTION
You are instructed that in deciding whether the parties reached an agreement you may
consider what they said and did in light of the surrounding circumstances including any earlier
course of dealing. You may not consider the parties unexpressedthoughts or intentions. 26
A party s conduct includes conduct of others that the party has ratified. Ratification may be
express or implied. Implied ratification occurs if a party though he may have been unaware of
unauthorized conduct taken on his behalf at the time it occurred retains the benefits of the
transaction involving the unauthorized conduct after he acquired full knowledge of the
unauthorized conduct. Implied ratification results in the ratification of the entire transaction. 27
id Zion Buildersand the Gardunos agree
That Zion Builderswould construct the Home in substantial compliance with the Plans
Answer Yes or : ____________
That construction of the Home would comply with certain standards and procedures and
requirements detailed in the Zion Builders specifications attached to the Agreement? 28
Answer Yes or : ____________
The above and foregoing Gardunos Proposed Question No. was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGEPRESIDING
PJC 101.3.
PJC 101.5.
PJC 101.1.
ARDUNOS ROPOSED UESTION
If you answered Yes to Question then answer this uestion . Otherwise do not answer
is uestion
Did Zion Buildersfail to comply with the Agreement for the construction of the Home you found
in Question 29
Answer Yes or : ______________
The above and foregoing Gardunos Proposed Question No. 1 was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGE PRESIDING
PJC 101.2.
ARDUNOS ROPOSED UESTION
Did any Counter Defendants fail to comply with the Agreement for the construction of the
Home? 30
Answer Yes or for each Counter Defendant separately.
Counter Defendant Logeman
Plaintiff/Counter Defendant Zion Builders
The above and foregoing Garduno Proposed Question No. 1 was duly and reasonably
requested by the Garduno and presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGE PRESIDING
PJC 101.2.
NEGLIGENT HIRINGAND SUPERVISION
ARDUNOS ROPOSED UESTION
Did either Counter Defendant exercise or retain some control over the manner in which any of the
employees and sub contractors’ work was performed other than the right to order the work to start
or stop or to inspect progress or receive reports?
You are instructed that control can be established in two ways: by (1) a contractual right of
control or (2) an exercise of actual control.
You are instructed that the word actual control mean control over the means methods or
details of the work and not merely the results to be accomplished. 31
Answer “Yes” or “No” for each Counter Defendant separately.
Counter Defendant Logeman
Plaintiff/Counter Defendant Zion Builders
The above and foregoing Gardunos Proposed Question No. 1 was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
________ Given as Requested
________ Refused
________ Modified and Given as Described
JUDGE PRESIDING
GSF Energy LLC v. Padron 355 S.W.3d 700 706 (Tex. App.Houston [1st Dist.] 2011 pet. denied) citing
Abarca v. Scott Morgan Residential Inc. 305 S.W.3d 110 122 (Tex. App.Houston [1st Dist.] 2009 pet. denied
(citing Dow Chem. Co. v. Bright 89 S.W.3d 602 606 (Tex.2002))
ARDUNOS ROPOSED UESTION
Did the negligent hiring retention and supervision of any employees or sub contractors hired
Counter Defendants proximately cause the Gardunos injury or occurrence?
You are instructed that an employee is a person in the service of another with the
understanding express or implied that such other person has the right to direct the details of
the work and not merely the result to be accomplished 32
You are instructed that negligent hiring retention and supervision when used with respect
to the conduct of Counter Defendants means the failure to carry out its duty to ascertain the
qualifications and competence of the employees it hires. 33
You are instructed that an employer is liable for negligent hiring retention or supervision if it
hires an incompetent or unfit employee whom it knows or by the exercise of reasonable care
should have known was incompetent or unfit thereby creating an unreasonable risk of harm
to others. 34
Answer “Yes” or “No”: ______________
The above and foregoing Gardunos Proposed Question No. was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
_____ Given as Requested
________ Refused
________ Modified and Given as Described
JUDGE PRESIDING
PJC 10.1.
Wise v. Complete Staffing Servs. Inc. 56 S.W.3d 900 902 (Tex. App.Texarkana 2001 no pet.); Garcia v. Allen
28 S.W.3d 587 592 (Tex. App.Corpus Christi 2000 pet. denied).
Verinakis v. Med. Profiles Inc 987 S.W.2d 90 98 (Tex. App.Houston [14th Dist.] 1998 pet. denied); Leake
v. Half Price Books Records Magazines Inc. 918 S.W.2d 559 563 (Tex. Ap Dallas 1996 no writ); Estate of
Arrington v. Fields 578 S.W.2d 173 178 (Tex. Civ. App.Tyler 1979 writ refd n.r.e.).
FRAUD IN A REAL ESTATE TRANSACTION
ARDUNOS ROPOSED UESTION
Did Counter Defendant Tyler Logeman commit fraud in a real estate transaction against the
Gardunos 35
You are instructed that fraud in a real estate transaction occurs when in a transaction
involving real estate
there is a false representation of a past or existing material factand
the representation is made to a person for the purpose of inducing that person to enter into
a contractand
the representation is relied on by that person in entering into that contract. 36
Answer “Yes” or “No”:
The above and foregoing Gardunos Proposed Question No. was duly and reasonably
requested bythe Gardunos and presented to the Court and it is hereby:
________ Given as Requested
________ Refused
________ Modified and Given as Described
JUDGE PRESIDING
PJC 105.7.
PJC 105.8; Tex. Bus. & Com. Code § 27.01(a)(1).
ARDUNOS ROPOSED UESTION
Did Counter Defendant Tyler Logeman have actual awareness of the falsity of the representation
37
or promise you found to be fraudulentin Question No.
You are instructed that actual awareness may be inferred where objective manifestations
indicate a person acted with actual awareness. 38
Answer “Yes” or “No”: ______________
The above and foregoing Gardunos Proposed Question No. was duly and reasonably
requested by the Gardunosand presente d to the Court and it is hereby:
________ Given as Requested
________ Refused
________ Modified and Given as Described
JUDGE PRESIDING
PJC 105.11.
PJC 105.11.
RAUD
ARDUNOS ROPOSED UESTION
Did Counter Defendant Tyler Logeman commit fraud against the Gardunos? 39
Fraud occurs when
1. a party makes a material misrepresentation, and
2. the misrepresentation is made with knowledge of its falsity or made recklessly without
any knowledge of the truth and as a positive assertion,and
3. the misrepresentation is made with the intention that it should be acted on by the other
party, and
40
4. the other party relies on the misrepresentation and thereby suffersinjury.
Answer “Yes” or “No”: ___________
The above and foregoing Gardunos’ Proposed Question No. was duly and reasonably
requested bythe Gardunos and presented to the Court and it is hereby:
________ Given as Requested
________ Refused
________ Modified and Given as Described
JUDGE PRESIDING
PJC 105.1
PJC 105.2
DAMAGES
ARDUNOS ROPOSED UESTION
Only answer Question No. if you answered Yes to Question No. as to any of the
Counter DefendantsOtherwise do not answer Question No.
What sum of money if paid now in cash would fairly and reasonably compensate the Gardunos
for their injuriesif any that resulted from negligence? 41
You are instructed to consider the elements of damages listed below and none other. Consider
each element separately. Do 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. Do not include interest on any amount of
damages you find 42
Market value means the amount that would be paid in cash by a willing buyer who desires
to buy but is not required to buy to a willing seller who desires to sell but is under no necessity
of selling.
Answer separatelyin dollars and cents for damages if any.
The reasonable cost of repairs necessary to cure damages resulting from any construction
defects(s).
Answer $ _______________
The reduction in market value of the Homeif any due to construction defect (s)
Answer $ _______________
The Gardunos loss of use of their Home due to any construction defect(s).
Answer $ _______________
The above and foregoing Gardunos Proposed Question N was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
PJC 31.3 .4.
PJC 31.3 .4.
JUDGE PRESIDING
ARDUNOS ROPOSED UESTION
Only answer Question No. if you unanimously answered Yes to Question No. regarding
Counter Defendant Tyler Logeman. Otherwise do not answer Question No. regarding
Counter DefendantTyler Logeman
Do you find by clear and convincing evidence that the harm to the Gardunos resulted from gross
negligence? 43
You are instructed that clear and convincing evidence means the measure or degree of proof
that produces a firm belief or conviction of the truth of the allegations sought to be
established. 44
You are instructed that gross negligence means an act or omission by Counter Defendant
Tyler Logeman
which when viewed objectively from the standpoint ofCounter Defendant Tyler Logeman
at the time of its occurrence involves an extreme degree of risk considering the probability
and magnitude of the potential harm to others; and
of whichCounter Defendant Tyler Logeman has actual subjective awareness of the risk
involved but nevertheless proceeds with conscious indifference to the rights safety or
welfare of others. 45
Answer Yes or
The above and foregoing Gardunos Proposed Question No. 1 was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGEPRESIDING
PJC 115.37
PJC 115.37
Tex. Civ. Prac. & Rem. Code § 41.001(11).
ARDUNOS ROPOSED UESTION
Only answer Question No. if you unanimously answered Yes to Question No. regarding
Counter Defendant Tyler Logeman. Otherwise do not answer Question No. regarding Counter
DefendantTyler Logeman
What sum of money if any should be assessed against the following and awarded to the Gardunos
as exemplary damages for the gross negligence conduct found in response to Question 46
You are instructed that exemplary damages means any damages awarded as a penalty or by
way of punishment but not for compensatory purposes. Exemplary damages includes punitive
damages.
Factors to consider in awarding exemplary damagesif any are
a. The nature of the wrong.
b. The character of the conduct involved.
c. The degree of culpability of the wrongdoer.
d. The situation and sensibilities of the parties concerned.
e. The extent to which such conduct offends a public sense of justice and propriety.
47
f. The net worth of Counter DefendantTyler Logeman
Answer in dollars and centsif any
The above and foregoing Gardunos Proposed Question No. was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGE PRESIDING
PJC 115.38.
PJC 115.38.
ARDUNOS ROPOSED UESTION
Only answer Question No. 2 if you answered Yes to Question No. . Otherwise do not
answer Question No. 2
What sum of money if any if paid now in cash would fairly and reasonably compensate the
Gardunos for their damages if any that were proximately caused by such negligent
misrepresentation? 48
You are instructed that proximate cause means a cause that was a substantial factor in
bringing about an event and without which cause such event would not have occurred. In order
to be a proximate cause the act or omission complained of must be such that a person using
the degree of care required of him would have foreseen that the event or some similar event
might reasonably result therefrom. There may be more than one proximate cause of an event. 49
Consider the following elements of damages if any and none other. Do not add any amount
for interest on past damages if any. Answer separately in dollars and cents for damages if any.
The differenceif any between the value of what the Gardunos received in the transaction
and the contract price or value given.
Answer: $ _______________
The economic loss if any otherwise suffered in the past as a consequence of the Gardunos
reliance on the misrepresentation.
Answer:$ _______________
The economic loss if any that in reasonable probability will be sustained in the future as
a consequence of the Gardunos rel iance on the misrepresentation.
Answer: $ _______________
The above and foregoing Gardunos Proposed Question No. 2 was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGE PRESIDING
PJC 115.21.
PJC 100.13
ARDUNOS ROPOSED UESTION
Only answer Question No. 2 if you answered Yes to Question No. or as to any of the
Counter Defendants. Otherwisedo not answer Question No. 2
What sum of money if any if paid now in cash would fairly and reasonably compensate the
Gardunos for their damages if any that resulted from Counter Defendants false misleading
and/or deceptive conduct and/or unconscionable conduct? 50
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. Do
not speculate 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.
Do not add any amount for interest on damagesif any.
Market value means the amount that would be paid in cash by a willing buyer who desires
to buy but is not required to buy to a willing seller who desires to sell but is under no necessity
of selling.
Answer separately in dollars and cents for damagesif any.
The reasonable cost of repairs necessary to cure damages resulting from any construction
defects(s).
Answer $ _______________
The reduction in market value of the Homeif any due to construction defect (s)
Answer $ _______________
The Gardunos loss of use of their Home due to any construction defect(s)
Answer $ _______________
The above and foregoing Gardunos Proposed Question No. 2 was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
________ Given as Requested
________ Refused
PJC 115.9
________ Modified and Given as Described
JUDGE PRESIDING
ARDUNOS ROPOSED UESTION
Only answer Question No. 2 if you answered Yes to Question No. as to any of the
Counter Defendants. Otherwisedo not answer Question No.
What sum of money if any in addition to actual damages should be awarded to the Gardunos
against Counter Defendants because Counter Defendants false misleading deceptive act or
practice and/or any unconscionable actionwas committed knowingly and/or intentionally? 51
You are instructed that factors to consider in awarding additional damages if any are
The nature of the wrong.
The character of the conduct involved.
The degree of culpability of Counter Defendants
The situation and sensibilities of the parties concerned.
The extent to which such conduct offends a public sense of justice and propriety.
52
The net worth of Counter Defendants
Answer separately for each Counter Defendantin dollars and cents if any:
Counter Defendant Logeman
Plaintiff/Counter Defendant ZionBuilders
The above and foregoing Gardunos Proposed Question No. 2 was duly and reasonably
requested bythe Gardunos and presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGE PRESIDING
PJC 115.11.
PJC 115.11.
ARDUNOS ROPOSED UESTION
Only answer Question No. 2 if you answered Yes to Question No. as to any of the
Counter Defendants. Otherwisedo not answer Question No. 2
What sum of money if any if paid in cash would fairly and reasonably compensate the Gardunos
for their damagesif any that resulted from any breach of warranty? 53
Consider the following elements of damagesif any and none other.
In answering questions about damages answer each question separately. Do not increase or
reduce the amount in one answer because of your answer to any other question about damages.
Do not speculate 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 the
judgment. Do not add any amount for interest on damagesif any.
Market value means the amount that would be paid in cash by a willing buyer who desires
to buy but is not required to buy to a willing seller who desires to sell but is under no necessity
of selling.
Answer separately in dollars and centsif any for each of the following:
The reasonable cost of repairs necessary to cure the damages resulting from the
construction defect(s)
Answer $ _______________
The reduction in market value if any to the extent the reduction is due to the construction
defect(s).
Answer $ _______________
The above and foregoing Gardunos Proposed Question No. 2 was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGE PRESIDING
PJC 115.9.
ARDUNOS ROPOSED UESTION
Only answer Question No. 2 if you answered Yes to Question No. 1 or 1 as to any of
the Counter Defendants. Otherwisedo not answer Question No. 2
What sum of money if any paid now in cash would fairly and reasonably compensate the
Gardunosfor their damages if any that resulted from failure to comply with the Agreement? 54
Consider the following elements of damages if any and none other. Do not add any amount
for interest on damagesif any. Answer separately in dollars and cents for damages if any.
Market value means the amount that would be paid in cash by a willing buyer who desires
to buy but is not required to buy to a willing seller who desires to sell but is under no necessity
of selling.
The reasonable and necessary cost to fix the construction defects in the Home. 55
Answer $ _______________
The reduction in current market valueif any after construction defect is repaired.
Answer $ _______________
The above and foregoing Gardunos Proposed Question No. 2 was duly and reasonably
requested by the Gardunosand presented to the Court and it is hereby:
________ GIVEN AS REQUESTED
________ REFUSED
________ MODIFIED AND GIVEN AS DESCRIBED
JUDGE PRESIDING
PJC 115.3.
PJC 115.4.
ARDUNOS ROPOSED UESTION
Only answer Question No. 2 if you answered Yes to Question No. 1 as to any of the
Counter Defendants. Otherwisedo not answer Question No. 2
What sum of money if paid now in cash would fairly and reasonably compensate the Gardunos
for their injury tha
Document Filed Date
March 22, 2021
Case Filing Date
May 01, 2019
Category
Other Civil Case >$100,000 but <$200,000
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CAUSE NO. 19-05-06051 ZION BUILDERS LIMITED IN THE DISTRICT COURT OF LIABILITY COMPANY D/B/A ZION BUILDERS Plaintiff, Counter-Defendant MONTGOMERY COUNTY, TEXAS ERIK GARDUNO A/K/A ERIC GARDUNO AND KAREN GARDUNO Defendants, Counter- Gardunos. 457th JUDICIAL DISTRICT DEFENDANTS/COUNTER PLAINTIFFS GARDUNOS’ PROPOSED CHARGE OF THE COURT TO THE HONORABLE JUDGE OF SAID COURT: Defendants/Counter-Plaintiffs Gardunos Erik Garduno a/k/a Eric Garduno and Karen Garduno Gardunos”) respectfully submit their Proposed Jury Instructions, Definitions, and Questions. The Gardunos do not concede that any claims or defenses asserted by Plaintiff or Counter Defendants are supported by legally sufficient evidence or authority to warrant presenting such claims to a jury. The Gardunos reserve the right to move for an instructed verdict after the evidence has been presented, to object to jury definitions, instructions, or questions submitted by Plaintiff or Counter-Defendants, to submit additional or modified instructions or questions to conform to the law and the evidence adduced at the trial of this matter, and to move for judgment notwithstanding the verdict, if necessary. The Gardunos further reserve the right to object to the submission of any and all questions, instructions, and definitions that the Court may give to the jury, including those set forth below. The Gardunos reserve the right to otherwise exercise all other rights they possess at or after trial as permitted by the Texas Rules of Civil Procedure. Respectfully submitted, Johnson & Associates Attorneys at Law, PLLC By: /s/ Justin M. Kornegay Christopher L. Johnson Texas State Bar No. 24069999 chris@Johnson Attorneys.com Justin M. Kornegay Texas State Bar No. 24077668 justin@Johnson Attorneys.com Caroline E. Bossier Texas State Bar No. 24110669 Caroline@Johnson Attorneys.com 303 East Main Street, Suite 100 League City, Texas 77573 Main:281 Fax: 409 ATTORNEYS FOR DEFENDANTS / COUNTER PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served upon the following counsel of record by certified mail, return receipt requested, facsimile, and/or electronic service on this Monday, March 22, 2021 Via Electronic Service: Joseph K. Watts Hanszen Laporte LLP 14201 Memorial Dr. Houston, Texas 77079 jwatts@hanszenlaporte.com Via Electronic Service:Tylerlogeman@gmail.com Tyler Logeman Zion Builders d/b/a Zion Builders P.O. Box 1113 Montgomery, Texas 77356 Via RegularMail Tyler Logeman Zion Builders d/b/a Zion Builders P.O. Box 1113 Montgomery, Texas 77356 /s/ Justin M. Kornegay Justin M. Kornegay COURT S INSTRUCTIONS TO THE JURY RELIMINARY URY NSTRUCTION MEMBERS OF THE JURY: fter the closing arguments you will go to the jury room to decide the case answer the questions that are attached and reach a verdict. You may discuss the case with other jurors only when you are all together in the jury room. Remember my previous instructions: Do not discuss the case with anyone else either in person or by any other means. Do not do any independent investigation about the case or conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post information about the case on the Internet. Do not share any special knowledge or experiences with the other jurors. Do not use your phone or any other electronic device during your deliberations for any reason. I will give you a number where others may contact you in case of an emergency. Any notes you have taken are for your own personal use. You may take your notes back into the jury room and consult them during deliberations but do not show or read your notes to your fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely on your independent recollection of the evidence and not be influenced by the fact that another juror has or has not taken notes. You must leave your notes with the bailiff when you are not deliberating. The bailiff will give your notes to me promptly after collecting them from you. I will make sure your notes are kept in a safe secure location and not disclosed to anyone. After you complete your deliberations the bailiff will collect your notes. When you are released from jury duty the bailiff will promptly destroy your notes so that nobody can read what you wrote. This case is submitted to you by asking questions about the facts which you must decide from the evidence you have heard in this trial. You are the sole judges of the credibility of the witnesses and the weight to be given their testimonybut in matters of law you must be governed by the instructions in this charge. In discharging your responsibility on this jury you will observe all the instructions which have previously been given you. I shall now give you additional instructions which you should carefully and strictly follow during your deliberations. Do not letbias prejudice or sympathy play any part in your decision. Base your answers only on the evidence admitted in court and on the law that is in these instructions and questions. Do not consider or discuss any evidence that was not admitted in the courtroom. You are to make up your own minds about the facts. You are the sole judges of the credibility of the witnesses and the weight to give their testimony. But on matters of law you must follow all of my instructions. When words are used in this charge in a sense that varies from the meaning commonly understood you are given a proper legal definition which you are bound to accept in place of any other meaning. All the questions and answers are important. No one should say that any question or answer is not important. Answer yes or to all questions unless you are told otherwise. A yes answer must be based on a preponderance of the evidence unless you are told otherwise. Whenever a question requires an answer other than yes or your answer must be based on a preponderance of the evidenceunless you are told otherwise. The term preponderance of the evidence means the greater weight of credible evidence presented in this case. If you do not find that a preponderance of the evidence supports a yes answer then answer A preponderance of the evidence is not measured by the number of witnesses or by the number of documents admitted in evidence. For a fact to be prove by a preponderance of the evidence you must find that the fact is more likely true than not true. A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved. Do not decide who you think should win before you answer the questions and then just answer the questions to match your decision. Answer each question carefully without considering who will win. Do not discuss or consider the effect your answers will have. You will not decide the answer to a question by lot or by drawing straws or by any other method of chance. Do not return a quotient verdict. A quotient verdict means that the jurors agree to abide by the result to be reached by adding together each juror s figures and dividing by the number of jurors to get an average. Do not do any trading on your answers; that is one juror should not agree to answer a certain question one way if others will agree to answer another question another way. Some questions might ask you for a dollar amount. Do not agree in advance to decide on a dollar amount by adding up each juror s amount and then figuring the average. In answering questions about damages answer each question separately. Do not increase or reduce the amount in one answer because of your answer to any other question about damages. Do not speculate 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. The answers to the questions must be based on the decision of at least ten of the twelve urors. The same ten jurors must agree on every answer. Do not agree to be bound by a vote of anything less than ten jurorseven if it would be a majority. As I have said before if you do not follow these instructions you will be guilty of juror misconduct and I might have to order a new trial and start this process over again. This would waste your time and the parties money and would require the taxpayers of this county to pay for another trial. If a juror breaks any of these rules tell that person to stop and report it to me immediately. After you retire to the jury roomyou will select your own presiding juror. The first thing the presiding juror will do is to have this complete charge read aloud and then you will deliberate upon your answers to the questions asked. It is the duty of the presiding juror to preside during your deliberations; to see that your deliberations are conducted in an orderly manner and in accordance with the instructions in this charge; to write out and hand to the bailiff any communications concerning the case that you desire to have delivered to the judge; to vote on the questions; to write your answers to the questions in the spaces provided; and to certify to your verdict in the space provided for the presiding juror s signature or to obtain the signatures of all the jurors who agree with the verdict if your verdict is less than unanimous. Should anyone attempt to talk to you about the case before the verdict is returned whether at the courthouse at your homeor elsewhereplease inform the judge of this fact. When you have answered all the questions you are required to answer under the instructions of the judge and your presiding juror has placed your answers in the spaces provided and signed the verdict as presiding juror or obtained the signatures you will inform the bailiff at the door of the jury room that you have reached a verdictand then you will return into court with your verdict Authority Tex. R. Civ. P. 226a; Texas Pattern Jury Charges Business ConsumerInsurance and Employment §100.3A (201 Texas Pattern Jury ChargesGeneral Negligence Intentional Personal Torts & Workers Compensation (201 Given: Refused: Modified: JUDGE PRESIDING ARDUNO ROPOSED EFINITIONS DEFINITION NO. 1 The terms Counter Plaintiffs and/or “Gardunos” mean Defendants/Counter Plaintiffs Erik Garduno a/k/a Eric Garduno and Karen Garduno Given: Given as Modified: Refused: DEFINITION NO. The term Plaintiff and/or “Zion Builders mean Plaintiff/Counter Defendant Zion Builders, LLC d/b/a Zion Builders Given: Given as Modified: Refused: DEFINITION NO. The term “Logeman” mean Counter Defendant Tyler Logeman Given: Given as Modified: Refused: DEFINITION NO. The term “Counter Defendants shall mean collectively mean Plaintiff/Counter Defendant Zion Builders, LLC d/b/a Zion Buildersand Counter Defendant Tyler Logeman Given: Given as Modified: Refused: DEFINITION NO. The term Home means the house located at 28792 ShirleyCourt, Magnolia, Texas 77355 Given: Given as Modified: Refused: DEFINITION NO. The term Agreement means the Residential Construction Agreement for the Home. Given: iven as Modified: Refused: DEFINITION NO. The term Plans shall mean the schematic drawings and specifications, including any amendments, which have beenincorporated into the Residential Construction Agreement. Given: Given as Modified: Refused: DEFINITION NO. The term Work shall mean the work labor services materials and other related activities performed for the Home s construction under the Residential Construction Agreement and subsequent attempts of repairs Given: Given as Modified: Refused: DEFINITION NO. The term construction defect mean s: the failure of the design construction or repair of a home to meet the applicable warranty and building and performance standards duringthe applicable warranty period; and any physical damage to the home or real property on which the home is affixed that is proximately caused by that failure. Given: Given as Modified: Refused: The above and foregoing Definitions were duly and reasonably requested by Gardunos and presented to the Court and were Given Modified and Given as Described or Refused as indicated above. JUDGE PRESIDING Former § 401.004 of the Texas Property Code; Tex. Prop. Code §27.001(4); D & M Marine Inc. v. Turner 409 S.W.3d 693 697 (Tex. App.Houston [1st Dist.] 2013 pet. denied). NEGLIGENCE ARDUNOS ROPOSED UESTION Did the negligence if any of those named Counter Defendants below proximate cause of the occurrencein questionor injuryto the Home You are instructed that Negligence means failure to use ordinary care that is failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. You are instructed that Ordinary are means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. You are instructed that Proximate ause means a cause that was a substantial factor in bringin about an injury or occurrence, and without which cause such injury or occurrence would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the injury or occurrence, or some similar injury or occurrence, might reasonably result therefrom. There may be more than one proximatecause of an injury or occurrence Answer Yes or for each of the following: Counter Defendant Logeman Plaintiff/Counter Defendant ZionBuilders The above and foregoing Gardunos Proposed Question No. was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGE PRESIDING PJC 4.1. PJC 2.1. PJC 2.1. PJC 2.4. ARDUNOS ROPOSED UESTION If you answered Yes to Question No. then answer Question No. . Otherwise do not answer Question No. For each person you found caused or contributed to cause the occurrence in question or injury to the Homefind the percentage of responsibility attributable to each: You are instructed to assign percentages of responsibility only to those you found caused or contributed to cause the occurrence in question or injury to the Home. The percentages you find must total 100 percent. The percentages must be expressed in whole numbers. The percentage of responsibility attributable to any one is not necessarily measured by the number of acts or omissions found. The percentage attributable to any one need not be the same percentage attributed to that one in answering another question. Counter fendant Logeman Plaintiff/Counter Defendant ZionBuilders Total The above and foregoing Gardunos Proposed Question No. was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGE PRESIDING PJC 4.3; PJC 2.4. PJC 4.3. ARDUNOS ROPOSED UESTION If you answered Yes to Question No. then answer Question No. . Otherwise do not answer Question No. Do you find by clear and convincing evidence that the cause of the occurrence in question or injury to the Home resulted fromthe gross negligence of Counter Defendant Tyler Logeman You are instructed that Clear and onvincing vidence means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established. You are instructed that Gross egligence means an act or omission by Counter Defendant Tyler Logeman which when viewed objectively from the standpoint of Counter Defendant Tyler Logeman at the time of its occurrence involves an extreme degree of risk considering the probability and magnitude of the potential harm to others; and of which Counter Defendant Tyler Logem had actual subjective awareness of the risk involved but nevertheless proceeds with conscious indifference to the rights safety or welfare of others. Answer Yes or The above and foregoing Gardunos Proposed Question No. was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGE PRESIDING NEGLIGENT MISREPRESENTATION PJC 4.2C. PJC 4.2C. ARDUNOS ROPOSED UESTION Did Counter Defendant Tyler Logeman make a negligent misrepresentation on which the Gardunosjustifiably relied? 10 You are instructed that Negligent isrepresentation occurs when A party makes a representation in the course of his business or in a transaction in which he has a pecuniary interestand The representation supplies false information for the guidance of others in their business and The party making the representation did not exercise reasonable care or competence in obtaining or communicating the information. 11 Answer “Yes” or “No”: ______________ The above and foregoing Gardunos Proposed Question No. was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGE PRESIDING PJC 105.19 PJC 105.19. DECEPTIVE TRADE PRACTICES ACTUNCONSCIONABILITY and BREACH OF WARRANTIES ARDUNOS ROPOSED UESTION Did any of the Counter Defendants engage in any false misleading or deceptive act or practice that the Gardunos relied on to their detriment and that was a producing cause of damages to the Gardunos 12 You are instructed that Producing cause means a cause that was a substantial factor in bringing about the damagesif any and without which the damages would not have occurred. There may be more than one producing cause. 13 You are instructed that False misleading or deceptive act or practice means any of the following: Representing that a warranty confers or involves rights or remedies whi it does not have or involve; or Representing that goods or services have sponsorship approval characteristics uses or benefits which they do not have; or Representing that work or services have been performed on or parts replaced in goods when the work or services were not performedor the parts replaced; or Failure to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclosure such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed. 14 15 You are instructed that Goods includes real property Answer Yes or for each Counter Defendant separately. Counter Defendant Logeman Plaintiff/Counter Defendant ZionBuilders PJC 102.1. PJC 102.1. See Deceptive Trade Practices Act §17.46(b). See DTPA §17.45(1); see also PJC 102.3. The above and foregoing Gardunos Proposed Question No. was duly and reasonably requested bythe Gardunos and presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGE PRESIDING ARDUNOS ROPOSED UESTION Didany the Counter Defendantsbelow engage in any unconscionable action or course of action that was a producing cause of damages tothe Gardunos 16 You are instructed that Producing ause means a cause that was a substantial factor in bringing about the damagesif any and without which the damages would not have occurred. There may be more than one producing cause. 17 You are instructed that an nconscionable ction or ourse of ction is an act or practice that to a consumer s detriment takes advantage of the lack of knowledgeability experience or capacity of the consumer to a grossly unfair degree. 18 Answer Yes or for each Counter Defendant separately. Counter Defendant Logeman Plaintiff/Counter Defendant ZionBuilders The above and foregoing Gardunos Proposed Question No. was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGE PRESIDING PJC 102.7. PJC 102.1; see also Deceptive Trade Practices Act §17.50(a)(3). See Deceptive Trade Practices Act §17.45(5) see also PJC 102.7. ARDUNOS ROPOSED UESTION If you answered Yes to Question or then answer th uestion o. . Otherwise do not answer th uestion o. Did any of the Counter Defendants engage in any false misleading deceptive act or practice and/orany unconscionable action or course of action knowingly and/or intentionally? 19 You are instructed that knowingly means actual awareness at the time of the conduct of the falsity deception or unfairness of the conduct in question or actual awareness of the conduct constituting a failure to comply with a warranty. Actual awareness may be inferred where bjective manifestations indicate that a person acted with actual awareness. 20 You are instructed that intentionally means actual awareness of the falsity deception or unfairness of the conduct in question actual awareness of the conduct constituting a failure to comply with a warrantycoupled with the specific intent that the consumer act in detrimental reliance on the falsity or deception or detrimental ignorance of the unfairness. Specific intent may be inferred where objective manifestations indicate that a person acted intentionally or may be inferred from facts showing that the person acted with such flagrant disregard of prudent and fair business practices that the person should be treated as having acted intentionally. 21 You are instructed that producing cause means an efficientexciting or contributing cause that in a natural sequence produced the damages if any. There may be more than one producing cause. In answering this question consider only the conduct that you have found was a producing cause of damages to the Gardunos Answer Yes or for each Counter Defendant separately. Counter Defendant Logeman Plaintiff/Counter Defendant ZionBuilders PJC 102.21. PJC 102.21. See Brown v. American Transfer & Storage Co. 601 S.W.2d 931 937 (Tex. 1980) See also PJC 102.21; DTPA § 17.45(13). The above and foregoing Gardunos Proposed Question No. was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGE PRESIDING ARDUNOS ROPOSED UESTION any below Counter Defendant failure if any to comply with a warranty a producing cause of damages toGardunos 22 You are instructed that Producing ause means a cause that was a substantial factor in bringing about the damagesif any and without which the damages would not have occurred. There may be more than one producing cause. 23 You are instructed that failure to comply with a warranty means any of the following: Failing to comply with an express warranty; 24 An xpress arranty is any affirmation of fact or promise made by any of the Counter Defendants that relates to the Home and becomes part of the basis of the bargain. It is not necessary that formal words such as warrant or guarantee be used or that there be a specific intent to make a warranty. Failing to perform services in a good and workmanlike manner. 25 ood and orkmanlike anner is that quality of work performed by one who has the knowledge training or experience necessary for the successful practice of a trade or occupation and performed in a manner generally considered proficient by those capable of judging such work. Answer Yes or for each Counter Defendant separately. Counter Defendant Logeman Plaintiff/Counter Defendant ZionBuilders PJC 102.8; see also Deceptive Trade Practices Act §17.50(a)(2); Tex. UCC §§ 2.313 .315. PJC 102.1; see also Deceptive Trade Practices Act §17.50(a)(3). PJC 102.9; Deceptive Trade Practices Act §17.50(a)(2); Tex. UCC §2.313. PJC 102.12; Deceptive Trade Practices Act §17.50(a)(2). The above and foregoing Gardunos Proposed Question No. was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGE PRESIDING BREACH CONTRACT ARDUNOS ROPOSED UESTION You are instructed that in deciding whether the parties reached an agreement you may consider what they said and did in light of the surrounding circumstances including any earlier course of dealing. You may not consider the parties unexpressedthoughts or intentions. 26 A party s conduct includes conduct of others that the party has ratified. Ratification may be express or implied. Implied ratification occurs if a party though he may have been unaware of unauthorized conduct taken on his behalf at the time it occurred retains the benefits of the transaction involving the unauthorized conduct after he acquired full knowledge of the unauthorized conduct. Implied ratification results in the ratification of the entire transaction. 27 id Zion Buildersand the Gardunos agree That Zion Builderswould construct the Home in substantial compliance with the Plans Answer Yes or : ____________ That construction of the Home would comply with certain standards and procedures and requirements detailed in the Zion Builders specifications attached to the Agreement? 28 Answer Yes or : ____________ The above and foregoing Gardunos Proposed Question No. was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGEPRESIDING PJC 101.3. PJC 101.5. PJC 101.1. ARDUNOS ROPOSED UESTION If you answered Yes to Question then answer this uestion . Otherwise do not answer is uestion Did Zion Buildersfail to comply with the Agreement for the construction of the Home you found in Question 29 Answer Yes or : ______________ The above and foregoing Gardunos Proposed Question No. 1 was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGE PRESIDING PJC 101.2. ARDUNOS ROPOSED UESTION Did any Counter Defendants fail to comply with the Agreement for the construction of the Home? 30 Answer Yes or for each Counter Defendant separately. Counter Defendant Logeman Plaintiff/Counter Defendant Zion Builders The above and foregoing Garduno Proposed Question No. 1 was duly and reasonably requested by the Garduno and presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGE PRESIDING PJC 101.2. NEGLIGENT HIRINGAND SUPERVISION ARDUNOS ROPOSED UESTION Did either Counter Defendant exercise or retain some control over the manner in which any of the employees and sub contractors’ work was performed other than the right to order the work to start or stop or to inspect progress or receive reports? You are instructed that control can be established in two ways: by (1) a contractual right of control or (2) an exercise of actual control. You are instructed that the word actual control mean control over the means methods or details of the work and not merely the results to be accomplished. 31 Answer “Yes” or “No” for each Counter Defendant separately. Counter Defendant Logeman Plaintiff/Counter Defendant Zion Builders The above and foregoing Gardunos Proposed Question No. 1 was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: ________ Given as Requested ________ Refused ________ Modified and Given as Described JUDGE PRESIDING GSF Energy LLC v. Padron 355 S.W.3d 700 706 (Tex. App.Houston [1st Dist.] 2011 pet. denied) citing Abarca v. Scott Morgan Residential Inc. 305 S.W.3d 110 122 (Tex. App.Houston [1st Dist.] 2009 pet. denied (citing Dow Chem. Co. v. Bright 89 S.W.3d 602 606 (Tex.2002)) ARDUNOS ROPOSED UESTION Did the negligent hiring retention and supervision of any employees or sub contractors hired Counter Defendants proximately cause the Gardunos injury or occurrence? You are instructed that an employee is a person in the service of another with the understanding express or implied that such other person has the right to direct the details of the work and not merely the result to be accomplished 32 You are instructed that negligent hiring retention and supervision when used with respect to the conduct of Counter Defendants means the failure to carry out its duty to ascertain the qualifications and competence of the employees it hires. 33 You are instructed that an employer is liable for negligent hiring retention or supervision if it hires an incompetent or unfit employee whom it knows or by the exercise of reasonable care should have known was incompetent or unfit thereby creating an unreasonable risk of harm to others. 34 Answer “Yes” or “No”: ______________ The above and foregoing Gardunos Proposed Question No. was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: _____ Given as Requested ________ Refused ________ Modified and Given as Described JUDGE PRESIDING PJC 10.1. Wise v. Complete Staffing Servs. Inc. 56 S.W.3d 900 902 (Tex. App.Texarkana 2001 no pet.); Garcia v. Allen 28 S.W.3d 587 592 (Tex. App.Corpus Christi 2000 pet. denied). Verinakis v. Med. Profiles Inc 987 S.W.2d 90 98 (Tex. App.Houston [14th Dist.] 1998 pet. denied); Leake v. Half Price Books Records Magazines Inc. 918 S.W.2d 559 563 (Tex. Ap Dallas 1996 no writ); Estate of Arrington v. Fields 578 S.W.2d 173 178 (Tex. Civ. App.Tyler 1979 writ refd n.r.e.). FRAUD IN A REAL ESTATE TRANSACTION ARDUNOS ROPOSED UESTION Did Counter Defendant Tyler Logeman commit fraud in a real estate transaction against the Gardunos 35 You are instructed that fraud in a real estate transaction occurs when in a transaction involving real estate there is a false representation of a past or existing material factand the representation is made to a person for the purpose of inducing that person to enter into a contractand the representation is relied on by that person in entering into that contract. 36 Answer “Yes” or “No”: The above and foregoing Gardunos Proposed Question No. was duly and reasonably requested bythe Gardunos and presented to the Court and it is hereby: ________ Given as Requested ________ Refused ________ Modified and Given as Described JUDGE PRESIDING PJC 105.7. PJC 105.8; Tex. Bus. & Com. Code § 27.01(a)(1). ARDUNOS ROPOSED UESTION Did Counter Defendant Tyler Logeman have actual awareness of the falsity of the representation 37 or promise you found to be fraudulentin Question No. You are instructed that actual awareness may be inferred where objective manifestations indicate a person acted with actual awareness. 38 Answer “Yes” or “No”: ______________ The above and foregoing Gardunos Proposed Question No. was duly and reasonably requested by the Gardunosand presente d to the Court and it is hereby: ________ Given as Requested ________ Refused ________ Modified and Given as Described JUDGE PRESIDING PJC 105.11. PJC 105.11. RAUD ARDUNOS ROPOSED UESTION Did Counter Defendant Tyler Logeman commit fraud against the Gardunos? 39 Fraud occurs when 1. a party makes a material misrepresentation, and 2. the misrepresentation is made with knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion,and 3. the misrepresentation is made with the intention that it should be acted on by the other party, and 40 4. the other party relies on the misrepresentation and thereby suffersinjury. Answer “Yes” or “No”: ___________ The above and foregoing Gardunos’ Proposed Question No. was duly and reasonably requested bythe Gardunos and presented to the Court and it is hereby: ________ Given as Requested ________ Refused ________ Modified and Given as Described JUDGE PRESIDING PJC 105.1 PJC 105.2 DAMAGES ARDUNOS ROPOSED UESTION Only answer Question No. if you answered Yes to Question No. as to any of the Counter DefendantsOtherwise do not answer Question No. What sum of money if paid now in cash would fairly and reasonably compensate the Gardunos for their injuriesif any that resulted from negligence? 41 You are instructed to consider the elements of damages listed below and none other. Consider each element separately. Do 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. Do not include interest on any amount of damages you find 42 Market value means the amount that would be paid in cash by a willing buyer who desires to buy but is not required to buy to a willing seller who desires to sell but is under no necessity of selling. Answer separatelyin dollars and cents for damages if any. The reasonable cost of repairs necessary to cure damages resulting from any construction defects(s). Answer $ _______________ The reduction in market value of the Homeif any due to construction defect (s) Answer $ _______________ The Gardunos loss of use of their Home due to any construction defect(s). Answer $ _______________ The above and foregoing Gardunos Proposed Question N was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED PJC 31.3 .4. PJC 31.3 .4. JUDGE PRESIDING ARDUNOS ROPOSED UESTION Only answer Question No. if you unanimously answered Yes to Question No. regarding Counter Defendant Tyler Logeman. Otherwise do not answer Question No. regarding Counter DefendantTyler Logeman Do you find by clear and convincing evidence that the harm to the Gardunos resulted from gross negligence? 43 You are instructed that clear and convincing evidence means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established. 44 You are instructed that gross negligence means an act or omission by Counter Defendant Tyler Logeman which when viewed objectively from the standpoint ofCounter Defendant Tyler Logeman at the time of its occurrence involves an extreme degree of risk considering the probability and magnitude of the potential harm to others; and of whichCounter Defendant Tyler Logeman has actual subjective awareness of the risk involved but nevertheless proceeds with conscious indifference to the rights safety or welfare of others. 45 Answer Yes or The above and foregoing Gardunos Proposed Question No. 1 was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGEPRESIDING PJC 115.37 PJC 115.37 Tex. Civ. Prac. & Rem. Code § 41.001(11). ARDUNOS ROPOSED UESTION Only answer Question No. if you unanimously answered Yes to Question No. regarding Counter Defendant Tyler Logeman. Otherwise do not answer Question No. regarding Counter DefendantTyler Logeman What sum of money if any should be assessed against the following and awarded to the Gardunos as exemplary damages for the gross negligence conduct found in response to Question 46 You are instructed that exemplary damages means any damages awarded as a penalty or by way of punishment but not for compensatory purposes. Exemplary damages includes punitive damages. Factors to consider in awarding exemplary damagesif any are a. The nature of the wrong. b. The character of the conduct involved. c. The degree of culpability of the wrongdoer. d. The situation and sensibilities of the parties concerned. e. The extent to which such conduct offends a public sense of justice and propriety. 47 f. The net worth of Counter DefendantTyler Logeman Answer in dollars and centsif any The above and foregoing Gardunos Proposed Question No. was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGE PRESIDING PJC 115.38. PJC 115.38. ARDUNOS ROPOSED UESTION Only answer Question No. 2 if you answered Yes to Question No. . Otherwise do not answer Question No. 2 What sum of money if any if paid now in cash would fairly and reasonably compensate the Gardunos for their damages if any that were proximately caused by such negligent misrepresentation? 48 You are instructed that proximate cause means a cause that was a substantial factor in bringing about an event and without which cause such event would not have occurred. In order to be a proximate cause the act or omission complained of must be such that a person using the degree of care required of him would have foreseen that the event or some similar event might reasonably result therefrom. There may be more than one proximate cause of an event. 49 Consider the following elements of damages if any and none other. Do not add any amount for interest on past damages if any. Answer separately in dollars and cents for damages if any. The differenceif any between the value of what the Gardunos received in the transaction and the contract price or value given. Answer: $ _______________ The economic loss if any otherwise suffered in the past as a consequence of the Gardunos reliance on the misrepresentation. Answer:$ _______________ The economic loss if any that in reasonable probability will be sustained in the future as a consequence of the Gardunos rel iance on the misrepresentation. Answer: $ _______________ The above and foregoing Gardunos Proposed Question No. 2 was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGE PRESIDING PJC 115.21. PJC 100.13 ARDUNOS ROPOSED UESTION Only answer Question No. 2 if you answered Yes to Question No. or as to any of the Counter Defendants. Otherwisedo not answer Question No. 2 What sum of money if any if paid now in cash would fairly and reasonably compensate the Gardunos for their damages if any that resulted from Counter Defendants false misleading and/or deceptive conduct and/or unconscionable conduct? 50 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. Do not speculate 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. Do not add any amount for interest on damagesif any. Market value means the amount that would be paid in cash by a willing buyer who desires to buy but is not required to buy to a willing seller who desires to sell but is under no necessity of selling. Answer separately in dollars and cents for damagesif any. The reasonable cost of repairs necessary to cure damages resulting from any construction defects(s). Answer $ _______________ The reduction in market value of the Homeif any due to construction defect (s) Answer $ _______________ The Gardunos loss of use of their Home due to any construction defect(s) Answer $ _______________ The above and foregoing Gardunos Proposed Question No. 2 was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: ________ Given as Requested ________ Refused PJC 115.9 ________ Modified and Given as Described JUDGE PRESIDING ARDUNOS ROPOSED UESTION Only answer Question No. 2 if you answered Yes to Question No. as to any of the Counter Defendants. Otherwisedo not answer Question No. What sum of money if any in addition to actual damages should be awarded to the Gardunos against Counter Defendants because Counter Defendants false misleading deceptive act or practice and/or any unconscionable actionwas committed knowingly and/or intentionally? 51 You are instructed that factors to consider in awarding additional damages if any are The nature of the wrong. The character of the conduct involved. The degree of culpability of Counter Defendants The situation and sensibilities of the parties concerned. The extent to which such conduct offends a public sense of justice and propriety. 52 The net worth of Counter Defendants Answer separately for each Counter Defendantin dollars and cents if any: Counter Defendant Logeman Plaintiff/Counter Defendant ZionBuilders The above and foregoing Gardunos Proposed Question No. 2 was duly and reasonably requested bythe Gardunos and presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGE PRESIDING PJC 115.11. PJC 115.11. ARDUNOS ROPOSED UESTION Only answer Question No. 2 if you answered Yes to Question No. as to any of the Counter Defendants. Otherwisedo not answer Question No. 2 What sum of money if any if paid in cash would fairly and reasonably compensate the Gardunos for their damagesif any that resulted from any breach of warranty? 53 Consider the following elements of damagesif any and none other. In answering questions about damages answer each question separately. Do not increase or reduce the amount in one answer because of your answer to any other question about damages. Do not speculate 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 the judgment. Do not add any amount for interest on damagesif any. Market value means the amount that would be paid in cash by a willing buyer who desires to buy but is not required to buy to a willing seller who desires to sell but is under no necessity of selling. Answer separately in dollars and centsif any for each of the following: The reasonable cost of repairs necessary to cure the damages resulting from the construction defect(s) Answer $ _______________ The reduction in market value if any to the extent the reduction is due to the construction defect(s). Answer $ _______________ The above and foregoing Gardunos Proposed Question No. 2 was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGE PRESIDING PJC 115.9. ARDUNOS ROPOSED UESTION Only answer Question No. 2 if you answered Yes to Question No. 1 or 1 as to any of the Counter Defendants. Otherwisedo not answer Question No. 2 What sum of money if any paid now in cash would fairly and reasonably compensate the Gardunosfor their damages if any that resulted from failure to comply with the Agreement? 54 Consider the following elements of damages if any and none other. Do not add any amount for interest on damagesif any. Answer separately in dollars and cents for damages if any. Market value means the amount that would be paid in cash by a willing buyer who desires to buy but is not required to buy to a willing seller who desires to sell but is under no necessity of selling. The reasonable and necessary cost to fix the construction defects in the Home. 55 Answer $ _______________ The reduction in current market valueif any after construction defect is repaired. Answer $ _______________ The above and foregoing Gardunos Proposed Question No. 2 was duly and reasonably requested by the Gardunosand presented to the Court and it is hereby: ________ GIVEN AS REQUESTED ________ REFUSED ________ MODIFIED AND GIVEN AS DESCRIBED JUDGE PRESIDING PJC 115.3. PJC 115.4. ARDUNOS ROPOSED UESTION Only answer Question No. 2 if you answered Yes to Question No. 1 as to any of the Counter Defendants. Otherwisedo not answer Question No. 2 What sum of money if paid now in cash would fairly and reasonably compensate the Gardunos for their injury tha