Jury instructions are integral to facilitating each juror’s understanding
of the law and the way in which to apply the law, when rendering a verdict
following a jury trial. However, until just years ago, Florida lacked the
substantive backing of jury instructions that were drafted with the specific
intent to be utilized during contract and business law disputes.
As standard
jury instructions failed to properly guide jurors regarding what issues were of
importance in their deliberations, naturally, parties subject to dispute found
that jury trials failed to resolve matters in a way that promulgated equitable
results to those involved. As we often take breach of contract cases to trial,
these jury instructions will be pivotal for our practice at Jimerson & Cobb
moving forward.
Recognizing the need for jury instructions attuned to the disputes of
business and contract law, Chief Justice R. Fred Lewis ordered the formation of
a committee to address this void in a 2006 administrative order. The committee
was composed of individuals from varying backgrounds, with specific expertise
and experience in the realm of contract and business law: Florida Supreme Court
justices, appellate judges, appellate attorneys, and trial attorneys. In re Standard Jury Instructions — Contract and Business
Cases, 116 So. 3d 284, 286-90 (Fla. 2013).
After over six years of hard work and collaboration, jury instructions
specifically tailored to address business and contract law disputes were
finally unveiled. Id. The instructions addressed a plethora of
legal issues including: Contract Formation, Breach of Contract, Contract
Interpretation, Oral or Implied Contracts, Affirmative Defenses, Commercial and
Contract Points of Law, and Damages. The following is a brief overview of the
key points of these instructions.
Breach of Contract
Jury instructions relating to Breach of Contract are five-fold.
Instructions address Breach of Contract, Third-Party Beneficiaries, Essential
Factual elements (two differing instructions), and Anticipatory Breach. Id.
Utilized when elements of a contract are contested, Essential
Factual Elements instructs a jury in situations in which: parties
entered into a contract, the parties fulfilled the terms of the contract, all
conditions required by the contract for defendant’s performance occurred,
defendant did not comply with the terms of the contract (something not allowed
by contract or failing to do required act), and the claimant suffered harm.
The Anticipatory Breach instruction is best-used in
situations involving claims of breach of contract in which defendant indicated
he would not or could not perform the contract and that the plaintiff was
willing and able to perform the contract.
Oral or Implied Contracts
There are three instructions for use in oral or implied contract cases. Oral
or Written Contract Terms is given when the contract at issue has any
oral component. Contract Implied in Fact is given when the
jury has to “infer” a contract existed from the facts and circumstances when
there is no oral or written contract. This instruction is grounded in case law
and American Jurisprudence on Contracts. The last instruction is Contract
Implied in Law and it encompasses quasi contract, unjust enrichment,
restitution, constructive contract, and quantum meruit. These contracts are not
based on facts, but on equity that may be decided by the judge. This
instruction also states that the claimant must show that the defendant owes him
or her money by the claimant proving a benefit, knowledge of the benefit,
acceptance of the benefit, and that it is fair that the defendant must pay for
the benefit. Id.
Contract Formation
Contract Formation also consists of five instructions. These instructions
address Essential Factual Elements of Contract Formation, Offer, Revocation of
Offer, Acceptance, and Acceptance by Silence or Conduct.
The Essential Facts of Contract Formation instruction is
utilized if a party contests the formation of a contract or certain portions of
it, and those outstanding issues are not decided by the judge as a matter of
law before trial. This instruction lists the elements of a contract and what
each element means is left to the discretion of the jury. The next element of
this instruction is “[t]he parties agreed to give each other something of
value,” and the last element is “[t]he parties agreed to the essential terms of
the contract.” The instruction further states Florida’s objective theory of
contract to tell the jury that the parties’ intentions cannot be used to make
this determination, only what the parties actually said or did. This is
important because many practitioners still believe that Florida follows a
subjective theory, or what the parties thought or intended.
Offer is the next instruction. It is given where there
is documentary evidence or testimony that no offer was made. The instruction
lists three requirements to prove that an offer was made: (1) One party has to
communicate to the other that he or she is willing to ‘enter into a contract’
with the other party; (2) there has to be communication between the parties
that includes the essential terms of the offer; and (3) if this offer is made,
then one party must reasonably assume that if he or she accepted the offer a
contract would result.
The next instruction is Revocation of Offer. It is only given
if the defendant claims he or she revoked the offer before the claimant
accepted it. The instruction gives three elements, any one of which the
claimant must prove: (1) the “defendant did not withdraw the offer;” (2)
“claimant accepted the offer before defendant withdrew it;” or (3) defendant
never communicated withdrawing the offer. If the defendant denies accepting the
offer, then the next instruction is given, Acceptance. This
instruction is rooted in Florida case law and states that “an acceptance is not
valid, and thus ineffective to form a contract, unless it is communicated to
the offeror.” The claimant must prove that the defendant actually communicated
“agreement to the terms of the offer” and that the agreement was to the
original terms.” There is also Acceptance by Silence or Conduct. It
recognizes the general rule that no response to an offer constitutes a
rejection and that a claimant must prove that both parties “understood silence
or inaction to mean that the offer was accepted.” This instruction is also
rooted in case law.
Contract Interpretation
The instructions found in relation to use during the deliberation of
contractual interpretation disputes include: Disputed Terms, Meaning of
Ordinary Words, Meaning of Disputed Technical or Special Words, Construction of
Contract as a Whole, Construction by Conduct, Reasonable Time, and Construction
against Drafter.
Disputed Terms gives the jury the
respective disputed terms of the contract and then tells the jury what each
party believes the terms mean. The parties have to prove that their
interpretation is correct and then the jury decides the terms’ meaning at the
time the contract was made by looking at “the plain and ordinary meaning of the
language used in the contract as well as the circumstances surrounding the
making of the contract.” An additional instruction is allowed if the court decides
the case requires the jury to use “other methods” to make the decision on the
contract terms, and cites extensive case law in the notes. There are times when
there are no ambiguities, and times when facts are in dispute and the case
should be submitted to the jury, so these instructions help the court and
counsel navigate these situations.
Meaning of Ordinary Words informs the jury that
any disputed contract terms are read according to their “plain and ordinary
meaning” and that the jury has the right, nevertheless, to conclude, “that the
parties intended the disputed terms to have another meaning.” The instructions
cite extensive case law to support. A sub-instruction, Meaning of
Disputed Technical or Special Words, informs the jury that if the parties
dispute the meaning of a technical term, the definition is determined by “the
meaning used by people in that trade, business, or technical field,” and that
the parties can decide that the technical terms have a different meaning.
Construction of Contract as a Whole directs the jury that
they must concentrate on the whole contract when defining the terms. Construction
by Conduct is provided to help the jury interpret contract terms by
looking to the parties’ conduct both “before and after the contract.” When
contracts to do not contain an end date, Reasonable Time is
given. This instruction informs the jury that it has to decide if the party
performed his or her part of the contract within a reasonable amount of time.
This is a subjective standard. This instruction cites extensive case law for
support.
Construction against Drafter is given to aid
interpretation when the contract contains ambiguities. It instructs the jury
that only after they have used all previous instructions to define the disputed
terms can they “construe” the disputed terms against the party who “drafted”
the contract. The committee was concerned that this instruction might cause the
jury to place too much importance on it, so the committee strongly recommends
that the court use this instruction in connection with a verdict form that
clarifies, by special interrogatory, what the term or phrase is that the court
has declared to be ambiguous.
Affirmative Defenses
Eleven instructions, in regards to Affirmative Defenses, are available for
use prior to jury deliberation. Instructions include those in reference to:
Mutual Mistake of Fact, Unilateral Mistake of Fact, Undue Influence, Fraud,
Waiver, Novation, Statute of Limitations, Equitable Estoppel, Ratification,
Negligent Misrepresentation, and Judicial Estoppel.
Mutual Mistake of Fact is given when the
defendant requests the contract be set aside because the parties were mistaken
about something, the defendant proves the mistake, and the defendant “did not
bear the risk of mistake.” Before it is given, the court must first decide if
it was a material mistake. If it is, the court gives the instruction to the
jury. The court must also decide if the “contract unambiguously assigns the
risk” of mistake to the defendant or if it is reasonable to assign to the
defendant. If the court decides yes, the instruction is not given.
Unilateral Mistake of Fact is provided if the court
decides there was a material unilateral mistake. Also, the court decides if the
“contract unambiguously assigns the risk” of mistake to the defendant or, if it
is reasonable to assign it to the defendant. If the judge decides the contract
assigned the risk to the defendant, or that it is reasonable to assign the risk
to the defendant, the instruction is not given. This instruction is given when
the defendant wants the contract set aside because the defendant was “mistaken”
about something. The defendant has to show that he or she was mistaken about
something; that the claimant either caused or knew of the mistake, or that the
contract is unconscionable with the mistake; and that the defendant did not bear
the risk of the mistake. This is another instruction grounded in case law.
Undue Influence is given when the
defendant claims that he or she only agreed to the contract because the
claimant “unduly pressured” him or her, and, as such, the contract should be
set aside. The defendant must prove that he or she would not have agreed to the
contract if the claimant had not pressured him or her. It then provides
specific ways pressure was given. The Fraud instruction
requires the defendant to prove that the fraudulent statement the claimant made
was material; claimant knew it was false; claimant made the statement to get
defendant to agree to the contract; “defendant relied on the representation;”
and defendant “would not have agreed to the contract” if he or she knew the
statement was false. The instruction also requires the affirmative defense of
fraud be pled correctly.
Waiver instructs the jury that the waiver can be oral,
written, or stem from the parties’ conduct. The instruction then lists the
elements of waiver: the claimant (1) had to know the allegedly waived right
existed; (2) knew the defendant could have performed the waived right; and (3)
freely and intentionally gave up the right. Novation is given
when the defendant claims cancellation of the original contract and an
agreement between the parties to substitute a new one. Statute of
Limitations is given when the defendant claims that the action was not
filed within the applicable statute of limitations period, which begins the
date of the breach.
Equitable Estoppel provides that a
defendant can use this defense if the claimant took a certain action, “spoke
about” a fact, or “concealed or was silent about” a fact that he or she knew
about, and the defendant relied on any of the above, resulting in the defendant
changing his or her “position for the worse.” It further adds that, before the
court can submit this instruction to the jury, the court has to determine that
any of the above was material. Ratification is given when the
defendant breached the contract by some act, and the claimant knew of the act
and that he or she could “reject” the contract because of this act. However,
the claimant accepted the act anyway and is bound by or “ratified” the
contract.
Commercial and Contract Points of Law
There are nine jury instructions for Commercial and Contract Points of Law.
Included in these instructions are Substantial Performance, Modification,
Existence of Conditions Precedent Disputed, Occurrence of Agreed Condition
Precedent, Breach of Implied Covenant of Good Faith and Fair Dealing, Goods
Sold and Delivered, Open Account, Account Stated, and Money Had and Received.
Substantial Performance is given when one party
claims that the other party failed to perform “all of the essential things
which the contract required,” so that party was relieved of his or her
obligations. The party has to prove: (1) that he or she “performed in good
faith;” and (2) that the other party got substantially what was promised under
the contract and denying payment in full was unreasonable. If any deduction in
payment is needed, there is the capability to make a reduction in the damages
section of the instructions.
Modification is provided when the
claimant asserts that the original contract was modified, but the defendant
denies that a modification occurred. Using a reasonable standard, the jury is
told to look at the words and conduct of the parties to determine if the
contract was modified and that the “contract in writing may be modified by a
contract in writing, by a subsequent oral agreement between the parties, or by
the parties’ subsequent conduct.” The instruction further provides that the
parol evidence rule does not “bar evidence proving the [subsequent] oral
modification of written contracts.”
Existence of Conditions Precedent Disputed is given when the defendant
can show that he or she did not have a specific duty because the claimant did
not comply with the condition precedent. The jury is told that if “both the
existence and the occurrence of a condition precedent are disputed,” the
defendant must “prove that the parties agreed to the condition” and, once this
requirement is met, the claimant must show that he or she met the condition
precedent. If the claimant fails, the defendant is otherwise not required to
fulfill the specific duty.
Occurrence of Agreed Condition Precedent is given when the
defendant asserts that in the contract, the parties agreed that defendant would
not have a specific duty unless a certain condition precedent occurred. It is
given only if “both the existence and the occurrence of a condition precedent
are disputed.”
Breach of Implied Covenant of Good Faith and Fair
Dealing defines
good faith and fair dealing, tells the jury each parties’ duties, and instructs
that the claimant asserts the defendant failed to act as this instruction
requires. It sets forth elements that must be met to show that the defendant
failed to act in good faith: (1) there was a contract; (2) claimant
substantially completed the contract; (3) defendant was able to perform the contract;
(4) defendant “unfairly interfered with [claimant’s] receipt of the contract’s
benefits,” (5) defendant did not meet the “reasonable contract expectations;”
and (6) claimant was harmed.
Goods sold and Delivered is provided where the
claimant contends that he or she sold and delivered goods to the defendant and
the defendant did not pay. The instruction requires that a claimant prove the
sale, delivery, and nonpayment of the agreed upon price or the reasonable value
of the goods. Open Account gives the jury the definition of
“open account,” and is provided when the claimant states that the defendant
owes him or her money because of the open account. The instruction states that
the claimant must prove: (1) a transaction with the defendant; (2) that an “account
existed;” (3) existence of an invoice; and (4) money owed on the account by
defendant. Account Stated provides that the claimant has to
prove: (1) the claimant and defendant had a transaction; (2) they agreed on the
amount owed or that the claimant sent an invoice and the defendant did not
timely object to the invoice; and (3) defendant “expressly or implicitly
promised to pay,” but failed to pay any or all of the amount owed. Lastly, Money
Had and Received requires a claimant prove that the defendant received
money from a certain transaction and that “in all fairness” the defendant
should refund the money.
Damages
There are eleven instructions on damages: Introduction to Contract Damages,
Breach of Contract Damages, Compensatory Damages, Special Damages, Lost
Profits, Damages for Complete Destruction of Business, Owner’s Damages for
Breach of Contract to Construct Improvements on Real Property, Obligation to
Pay Money Only, Buyer’s Damages for Breach of Contract for Sale of Real
Property, Seller’s Damages for Breach of Contract to Purchase Real Property,
Mitigation of Damages, Present Cash Value of Future Damages, and Nominal
Damages.
Introduction to Contract Damages shortly introduces the
concepts of contract damages that, year after year, confuse first year law
students. Breach of Contract Damages succinctly explains
compensatory damages and special damages. Lost Profits provides
that for a claimant to recover lost profits, the claimant must prove it was the
defendant that caused the claimant’s lost profits and the amount “with
reasonable certainty.” It further defines what “reasonable certainty” is for
the jury.
Damages for Complete Destruction of Business is provided only when
there is a “complete destruction” of the claimant’s business. The jury is
instructed that the claimant’s damages are based on the market value of the
business and that anything less than “complete destruction” is reimbursed with
the “lost profits” instruction, explained above.
Owner’s Damages for Breach of Contract to Construct
Improvements on Real Property is provided in the two most common circumstances
in which the instruction would be relevant. The first circumstance is when the
defendant makes no claim that the claimant’s requested damages would
“constitute unreasonable economic waste.” The claimant recovers the reasonable
amount to complete the job after subtracting “the balance due under the
contract.” The second circumstance is when the defendant states that a
claimant’s requested damages “constitute unreasonable economic waste.” If the
jury decides that there would be no “unreasonable economic waste,” damages are
measured as described in the first circumstance. If the jury finds that the claimant’s
damages would constitute “unreasonable economic waste,” however, damages are
“the difference between the fair market value of the claimant’s real property
as improved and its fair market value if the defendant had constructed the
improvements in accordance with the contract, measured at the time of the
breach.” This instruction is grounded in case
law.
Seller’s Damages for Breach of Contract to Purchase
Real Property is provided when the claimant, the seller of the real property, is
damaged by the buyer’s breach of contract. The claimant must prove that he or
she was willing to do everything required for the closing. Once the claimant
makes this proof, he or she can recover damages. This instruction does not
cover specific performance, and is not given if the contract contains
liquidated damages language. Damages are “[t]he difference between the contract
sales price and the fair market value of the property on the date of the
breach, less any amount which the defendant previously paid,” as well as
damages that were “contemplated” in the contract and “normally” occur during a
breach of contract.
Mitigation of Damages is provided when the
defendant asserts the correspondent affirmative defense. Since the defense does
not apply in nonexclusive contracts cases, the instruction is used only for
exclusive contracts. If the jury decides a defendant’s breach of contract
resulted in damages, and that the clamant failed to exhaust reasonable efforts
to avoid the damages, the claimant cannot recover damages the defendant proves
the claimant failed to avoid. The instruction also gives the jury power to
award claimant damages for the expenses incurred during those reasonable
efforts. This is another instruction grounded in case law.
Lastly, Nominal Damages instructs the jury to award a
nominal amount for the breach of contract even if the claimant did not prove
damages.
Conclusion
Not only do these jury instructions provide the elements necessary to be
proven or disproven, the instructions additionally provide legal support and
discussion of applicable law. The instructions are both comprehensive and leave
little to be updated later. The instructions assist juries, the bench, and the
bar in understanding legal standards in these difficult and complicated areas
of law. Furthermore, jury instructions are easily accessible and very
user-friendly, and can be found on the Florida Supreme Court Website.
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