standard jury instructions contracts and business january ...be capacity to consent in order to form...

SUPREME COURT COMMITTEE

ON STANDARD JURY INSTRUCTIONS mdash CONTRACT AND BUSINESS CASES

Meeting Agenda

Thursday January 23 2020130 pmndash530 pm Friday January 24 2020 900 amndash130 pm

Fourth DCA 110 S Tamarind Avenue West Palm Beach FL 33401 Multi-purpose Room

The call-in number is 1-888-376-5050 Conference code 965 874 1256

1 Welcome and Introductions (Special Welcome to New Members)

2 Approval of August 2019 Minutes p 4

3 SJI Contract and Business 2020 report filed with the Court on 11720 Affected InstructionsVerdict Forms 41623 (Anticipatory Breach)

41650(a) (Florida Deceptive and Unfair Trade Practices Act (ldquoFDUTPArdquo)) 41650(b) (Florida Deceptive and Unfair Trade Practices Act (ldquoFDUTPArdquo)mdashLegal Cause) 41650(c) (Florida Deceptive and Unfair Trade Practices Act (ldquoFDUTPArdquo)mdashMeasure of Actual Damages) Form 41630 (Model Form of Verdict Waiver) Form 5041 (Model Form of Verdict for Introduction to Contract Damages in Contract Claim) Form 5042 (Model Form of Verdict for Breach of Contract Damages in Contract Claim) Form 5043 (Model Form of Verdict for Lost Profits) Form 5044 (Model Form of Verdict for Damages for Complete Destruction to Business in Contract Claim) and Form 5046 (Model Form of Verdict for Obligation to Pay Money Only in Contract Claim)

4 Subcommittee Reports A Subcommittee Reviewing Section 500 Subcommittee to review the various proposed 504 verdict forms

suggest any necessary revisions consider the adoption of a 5045 form consider the addition of a damages line in the 5043 lost profits form and bring a consolidated proposal back to the full Committee (Burns Nations Sanchez Croom and Boyle)

Materials p24 B 41628 (Model Form of Verdict for Affirmative DefensemdashFraud) Subcommittee to review the draft model verdict form for instruction

41628 regarding fraud to determine whether any changes are necessary and to put together a final proposal for the full Committeersquos consideration (Payton Osherow Judge Huey and Gunn)

Materials p28 SJI January 2020 Agenda

C Subcommittee Unilateral Mistake

Subcommittee to review the state of the law on unilateral mistake in light of DePrince v Starboard to determine whether an instruction is needed and if so to draft a proposal along with a proposed verdict form (Altenbernd Gentile Gunn Palmer)

Materials p39 D Subcommittee Tortious Interference Subcommittee to review the state of the law on tortious interference

and the applicable Civil instruction and to consider any necessary proposals for the full Committeersquos consideration including whether that instruction should be tweaked and whether it should be moved to the Business instructions (Turkel Huey Altenbernd Boyle)

E 41627 (Model Form of Verdict for Affirmative DefensemdashUndue

Influence) Subcommittee to review the draft model verdict form for instruction 41627 regarding undue influence to determine whether any changes are necessary and to put together a final proposal for the full Committeersquos consideration (Bitman Serafin Turkel)

F Subcommittee Restrictive Covenants Subcommittee to review the state of the law on restrictive covenants to determine whether an instruction is needed and if so to draft a p proposal (Osherow Serafin Rost) G Subcommittee Independent Tort Doctrine Subcommittee to review the independent tort doctrine to determine

whether an instruction is needed (Burns Boyle Croom Sanchez Spector)

H Subcommittee Trespass Subcommittee to review the state of the law on trespass to determine whether an instruction is needed and if so to draft a proposal (Altenbernd Gewirtz Palmer Gentile) I New Appointments and Reappoints to the Committee Members whose terms expires 63020 Mark Boyle Ronnie Bitman Jerry Gewirtz

SJI January 2020 Agenda Page 2

Lee Haas Mark Nation Mark Osherow Steele Williams

5 New Business

A 41624 (Breach of the Implied Covenant of Good Faith and Fair Dealing) Materials p42

B Open Discussion

6 Announcements

A New SJI CB Supplement Available httpsstorelexisnexiscomflorida_barcategoriescivil-practice-procedure-state-155florida-standard-jury-instructions-contract-and-business-cases-skuusSku20670426

RosterSJI subcommittee list p 47

B Dinner tonight and Breakfast tomorrow

7 Upcoming Meeting Discussion

8 Adjournment


1

SUPREME COURT COMMITTEE ON STANDARD JURY

INSTRUCTIONS FOR CONTRACT AND BUSINESS CASES

Minutes for Committee meeting held on August 1-2 2019

Orange County Courthouse Orlando Florida

embers Present in Person Members Appearing by Phone

on Paul Huey Chair Chris W Altenbernd

Lee Barrett Richard Benrubi

on Janet Croom Hon Jeffrey L Burns

onald M Gache Manuel Farach

on Geoffrey Gentile Adina L Pollan

rry M Gewirtz

ee L Haas

on Lisa T Munyon Members Excused

ark A Nation Mark A Boyle Sr Vice Chair

ark Osherow Ronnie Bitman

itchell O Palmer Tracy R Gunn

arry A Payton Joshua B Spector

cott R Rost

lbert A Sanchez

on Donald Scaglione Members Absent

tephanie Serafin NA

artin B Sipple

onna G Solomon

enneth G Turkel

teele T Williams

M

H

R

H

R

H

Je

L

H

M

M

M

H

S

A

H

S

M

D

K

S

Also Joseph Eagleton Committee Reporter

Mikalla Davis Bar Liaison

Bryan Gowdy SJI Civil Liaison (by phone)

Kasey Cisneros (by phone)

1 Welcome and Introductions

The Chair called the meeting to order at 138 pm on Thursday August 1 2019

and welcomed everyone to Orlando He reported that Justice Robert Luck is the

new Florida Supreme Court liaison for the Committee


2

2 Approval of March 2019 Minutes

The Chair raised a question about the reference on page 19 from the minutes of the

Committeersquos last meeting held on March 7-8 2019 in Tampa regarding the

subcommittee report form Eagleton stated that this notation referred to templates

on the Committeersquos webpage that can be used for subcommittees to file their

reports for the full Committee meetings The Chair reminded the Committee that

these forms are available and encouraged subcommittee chairs to use them in the

future

The Chair then called for approval of the minutes from the March 7-8 meeting No

further comments were received Gewirtz moved to approve the minutes as

presented Barrett seconded The minutes were unanimously approved by

proclamation

3 SJI Civil and SJI Contract and Business Joint Report on Fiduciary

Duty

The Chair reported on the status of the model verdict form for breach of fiduciary

duty (form 45114) This is a joint report submitted with the Civil Committee in

case number SC19-185 The Chair stated that the Committee might consider

adding to this instruction in the future given that there are so many iterations of

fiduciary duty

4 Rules Adopted at the March 2019-Awaiting Publication

Davis reported that at the last meeting the model verdict form for the affirmative

defense of novation (form 41631) was the only rule formally approved by the

Committee She asked for direction regarding whether to publish this one rule for

comment or whether to wait until there were more proposals to bundle together

The Chair suggested waiting to do a few at the same time The Committee agreed

5 Subcommittee Reports

A 41627 Model Form of Verdict for Affirmative Defense ndash Undue

Influence

Turkel reported on the subcommitteersquos work regarding the affirmative

defense of undue influence (instruction 41627) At the last meeting

the subcommittee was charged with evaluating whether the word


3

ldquounfairlyrdquo should remain in the instruction However Turkel stated

that the subcommittee ended up examining a broader question whether

undue influence is even a defense to contract claims at all

According to Turkel the subcommittee initially could not locate any

case law extending this affirmative defense to a standard contract or

commercial claim The only cases cited in support of the instruction

are in the context of probate litigation involving wills and trusts

The subcommittee then located the Jackson case cited in the

subcommitteersquos report at page 29 of the meeting agenda dealing with

an agreement to arbitrate That case which concerned a standard

employment scenario is the only case outside the testamentary context

to apply undue influence as a defense to a commercial claim And the

only authority cited in Jackson to support the extension of the defense

beyond testamentary and guardianship disputes appears to be the jury

instruction drafted by this Committee

Following Turkelrsquos discussion of the Jackson case Haas provided the

backstory regarding how this instruction came to be When this

Committee was first formed there was nothing The Committee used

the California instructions as a model but these issues are all addressed

by statute in California so the Committee had to improvise Haas said

that itrsquos likely the California instruction addressed undue influence and

the Committee wrestled with it because therersquos duress and therersquos

unconscionability and the Committee just rolled this all together into

an undue influence instruction

Barrett stated that he sees this a lot like in employment cases where a

new employer comes in and says ldquosign this contract by 4 pm or

yoursquore firedrdquo Similarly Gache reported that this is usually more

economic duress not guns-to-your-head duress in business cases

Foreclosure for instance

Haas wondered if therersquos three separate situations here duress

economic duress and unconscionability

Turkel said therersquos a Fourth DCA case talking about business

compulsion There the factual scenario involved an expert witness

who three days before trial said he wasnrsquot going to testify unless the


4

attorney paid all of the expertrsquos fees The attorney felt the fees werenrsquot

reasonable but he was forced to pay to get the expert to show up

Spector found some other cases along these lines

Haas asked about the difference between duress and coercion Turkel

was not totally sure and said the subcommittee would have to run that

down But he said that in the meantime the subcommitteersquos

recommendation is to remove the undue influence instruction and draft

separate instructions for duress coercion and unconscionability

The Chair wondered if this is even an affirmative defense there has to

be capacity to consent in order to form a contract So the lawyers must

take the jury through the elements including that therersquos a meeting of

the minds acceptance consideration and capacity The typical

example is how a 16-year-old cannot enter into a contract The Chair

questioned whether this is a situation where the defendant simply says

ldquodeniedrdquo in answering the complaint because there was no capacity to

form the contract

Gache stated that he thinks the answer is a ldquoyes butrdquo which makes it

an affirmative defense Turkel expressed his view that there is

language in the cases that itrsquos a formative defense meaning it negates

the formation of the contract in the first place because the defendant did

not have free agency More discussion ensued on this issue

Rost raised a question about substantive versus procedural

unconscionability Serafin agreed that comes up in the cases

Turkel said that the subcommittee can take a deeper dive into all this if

the Committee agrees The Chair said that the Committee obviously

wasnrsquot going to create a verdict form at this point He suggested that

the subcommittee move forward with its plan to consider replacing this

instruction with at least duress The subcommittee will report back at

the next meeting

B 41628 Model Form of Verdict for Affirmative Defense ndash Fraud

(Payton Osherow Huey and Gunn)

Payton reported on the subcommitteersquos progress in creating a model

form of verdict for the affirmative defense of fraud Working on the


5

verdict form led the subcommittee to also suggest improvements to the

language of the substantive instruction

The subcommitteersquos principal proposed change to the instruction

concerns the use of the word ldquopersuaderdquo rather than ldquoinducerdquo The

cases talk about ldquoinducingrdquo action according to Payton and that would

thus be a more appropriate word to use

Another question is whether the instruction should be limited to

inducement in the context of a contract or whether the object of the

inducement should be left blank to be filled in depending on the nature

of the case Payton said that not every fraud involves a contract

Others may induce action such as a misrepresentation inducing

forbearance

Osherow would prefer to leave ldquoinduce contractrdquo in the instruction He

felt that Paytonrsquos concern was more in the nature of a note on use and

would make the instruction more confusing He suggested leaving the

instruction as is and adding a note on use that there may be other

contexts in which the instruction would be appropriate The Chair

tended to agree

Haas said that looking to instruction 4097 in the Civil instructions it

has a model verdict form for the affirmative claim of fraud So the

Committee is proposing a jury instruction on the defense but not on the

affirmative claim He said that the Committee previously discussed

putting together a whole fraud grouping of instructions on both the

affirmative side and the defense He expressed concern that itrsquos strange

to have a verdict form on the defense and not on the affirmative claim

Osherow asked whether the Committee could adopt instructions that

are duplicative of the Civil instructions for purposes of making the

Contract amp Business instructions complete Haas said yes thatrsquos why

there are joint instructions and why the Committee has talked about

doing some other ones Osherow stated that the Committee could also

do this by reference Haas then said that the question is whether to do a

verdict form at the same time Osherow said the Committee could put

in a reference to the existing Civil instruction then do its own verdict

form


6

If the Committee were going to do that Judge Gentile said that he

would want something in a comment saying that the instruction was

approved by the Supreme Court as a Civil instruction

The Chair expressed his view that the Committee go ahead and adopt

the verdict form for the affirmative defense and then talk to the Civil

Committee about adopting a joint instruction for the affirmative cause

of action later Gowdy thought that sounded fine He said that he

would connect with Haas after the meeting and bring the issue up at the

next meeting of the Civil Committee in October

C 41630 Model Form of Verdict for Affirmative Defense ndash Waiver

(Boyle Gentile and Williams)

Williams reported on the subcommitteersquos progress in drafting a model

verdict form for the affirmative defense of waiver After recapping the

discussion from the last meeting on this issue set forth on pages 11-13

of the agenda Williams stated that the subcommittee came up with

three different versions for the Committee to choose from These

versions are set forth on page 48 of the agenda

The subcommittee likes version two the best Version one is a little bit

overly simple and version three is perhaps more complicated than

necessary According to Judge Gentile the subcommittee preferred

version two because it would be easy for a jury to read and apply

Discussion ensued particularly about whether ldquoshould have knownrdquo in

version three is contrary to the definition of waiver as the ldquointentional

relinquishment of a known rightrdquo Payton expressed that view Haas

responded that according to the case law cited in the note on use

actual or constructive knowledge works Haas was unsure whether

ldquoconstructive knowledgerdquo is the same as ldquoimplied actual noticerdquo The

Committee continued to discuss that issue

Barrett suggested that the language in version two favored by the

subcommittee was a little awkward Instead of ldquodid defendant prove

by the conduct or communication of claimantrdquo Barrett said that it

should say ldquodid defendant prove that the claimant by hisherits

conduct or communication waivedrdquo That also gets rid of the ldquofreely


7

and intentionallyrdquo part that was causing some Committee members to

be concerned

Barrett further suggested a change to the ldquoYesrdquo or ldquoNordquo prompt in

version two which should instead say ldquoinsert description of

performancerdquo Serafin did not think that change was necessary and the

Chair agreed He said itrsquos either yes or no and doesnrsquot require an

explanation about why

Barrett moved to accept the model verdict form version two as

presented by the subcommittee and amended through discussion

Sipple seconded The Committee unanimously approved the proposal

D Subcommittee Reviewing Section 500 (Burns Nation Sanchez Croom

and Boyle)

Led by the Chair the Committee engaged in a discussion about the status

of various proposed 504 verdict forms beginning with instruction 5043

concerning lost profits

5043 Lost Profits

Sanchez updated the Committee on the status of this verdict form based

on comments at the last meeting where the focus was whether to add a

third line for damages The Chair saw no harm in adding this line

Sipple agreed

Rost suggested something like ldquoIf the answer is yes what is the amount

of damagesrdquo Palmer then stated that if the Committee was going to add

a third line then it needed to also change the ldquoyesrdquoldquonordquo structure of the

form so that the jury will proceed if answering yes So it should read ldquoIf

your answer to question 2 is YES your verdict is for (claimant) on this

claim and you should proceed to question 3rdquo Then adding ldquo3 What is

the amount of lost profitsrdquo as suggested by Palmer with a blank line for

the amount

Sipple expressed some concern that the structure of this proposal could

be perceived as defense-friendly in that the jury has to check two yesrsquos

for the claimant to get any money The jury also wouldrsquove had to check

something on the substantive contract claim before even getting to this


8

instruction Sipple wondered whether questions 1 and 2 could be

combined

Haas said though that you must prove two things to get lost profits

Gache agreed Turkel commented that there must be a nexus between the

conduct and the profits and this is a bifurcated inquiry the real part that

has to be proven with reasonable certainty is the number

Haas stated that the case law is pretty clear that establishing lost profits

with reasonable certainty is not just a gross profits number but requires

showing a net profit number The connection must be established He

said that lots of plaintiffs can get a yes on question 1 that the defendantrsquos

actions caused the claimant to lose profits But lots of plaintiffs then fail

on establishing the amount of those profits with reasonable certainty

Williams described one of his cases in this context the Asset

Management decision out of the Second DCA which contains a good

description of the law regarding lost profits Palmer wondered if we

should add this case to the list of sources in the jury instruction

Sipple agreed with the comments from others that these are separate

elements and thatrsquos why the substantive instruction breaks it down But

hersquos still unsure there need to be two lines on the verdict form

The Chair said that the proof on lost profits is often anemic Thatrsquos why

itrsquos broken into two questions

Haas suggested that to address Sipplersquos concern perhaps the language

could be reversed if your answer is yes go to question 2 if your answer

is no then stop However Palmer said that the usual practice is to

provide the stop option first not second so he did not think the

Committee should do this

The Chair said that in this situation the appellate arguments and what

people focus on in preparing for trial are these very two questions He

said that question 2 is a big deal and should remain

Osherow said a jury could find that there was cause for damages but find

that only half of those damages were proven with reasonable certainty


9

He wondered whether the second question should set forth the amount

rather than a ldquoyesrdquo or ldquonordquo

Haas suggested that question 3 should add ldquothat (claimant) proved with

reasonable certaintyrdquo But the Chair said that this would require

answering the same question twice

Altenbernd agreed with the Chair He said that we donrsquot generally put

things that are part of the burden of proof on the verdict form so he did

not believe the ldquoreasonable certaintyrdquo language should be included there

Williams expressed his view that question 2 is okay as is because it

reflects that the claimant cannot recover speculative damages and that the

ldquoreasonable certaintyrdquo standard is a fair splitting of the road The Chair

said that the standard is set forth in the substantive instruction and will be

the focus of opening and therersquoll be witnesses and therersquoll be 30 minutes

of closing on what ldquoreasonable certaintyrdquo means So he agreed with

Altenbernd that it does not need to go on the verdict form

Solomon questioned what a jury was supposed to do if they thought some

damages were proven with reasonable certainty and some were not

Osherow agreed

Nation was unsure that the burden of proof is always omitted He said

that the ldquogreater weight of the evidencerdquo is in some first-party insurance

instructions Haas agreed and said that this could be helpful to the jury

Serafin wondered whether the burden could be set forth in question 2

asking something like ldquodid claimant establish with reasonable certainty

that defendantrsquos actions caused lost profitsrdquo The Chair said this might

be too confusing Judge Munyon agreed that short plain statements are

generally better

The Chair inquired whether to leave ldquoreasonable certaintyrdquo in there on

question 3 The majority of the group wanted to leave it in

Rost moved to approve the addition of a third line to the draft 5043

verdict form and to approve the form for publication and submission

to the Supreme Court Haas seconded The Committee approved the

verdict form by majority vote Payton dissented


10

The Chair raised a question about the Committeersquos policy for updating

case law in the notes on useauthorities section of the instructions Haas

said historically itrsquos always been ad hoc whenever someone on the

Committee sees something The Chair said he thinks there have been

some significant cases especially in this area of lost profits He tasked

the subcommittee with updating the law and creating a revised note on

use with some of the new cases such as Katz Deli and Asset

Management

5044 Damages for Complete Destruction to Business

The Chair then turned to the draft verdict form for 5044 concerning

damages for complete destruction to business With a change to the

proposed language inadvertently referencing the companion ldquoCivilrdquo

instructionmdashit should be ldquoContract and Businessrdquomdashthe Chair suggested

that this appeared ready to approve

Judge Scaglione moved to approve the verdict form for 5044 as

proposed on page 70 of the agenda with the change suggested by the

Chair Rost seconded The Committee unanimously voted to approve

5045 Ownerrsquos Damages for Breach of Contract to Construct

Improvements to Real Property

Sanchez reviewed the subcommitteersquos work (Burns Nation Sanchez

Croom Boyle) on a model verdict form for instruction 5045

The subcommittee addressed two situations one involving economic

waste and one if therersquos no waste Judge Croom reached out to the

Construction Law Committee and the consensus response is that they

want a verdict form because they use it They do not want any

substantive changes made but they did suggest some minor changes

which the subcommittee has set forth on page 49 of the agenda For

instance question 4b has a redundant phrase that can be eliminated

The Construction Law Committee also asked the subcommittee to

investigate developing the term ldquounreasonable economic wasterdquo in the

instruction Therersquos no defined term for that and they would like for the

Committee to add it in Therersquos a Supreme Court case to support it


11

Grossman Holdings which the construction litigators believe would help

clarify the issue for the jury

Sanchez reported that the subcommittee adopted the feedback they

received from the experienced construction litigators and those proposed

revisions to the verdict form are laid out in the agenda Sanchez also

agreed that the substantive jury instruction itself does need a definition of

what unreasonable economic waste is

Haas discussed his experience on this issue He said that the Committee

really needs two instructions one subject to Grossman Holdings and one

based on the exception under the Restatement of Contracts That

exception does not apply under the Restatement of Torts which the

Committee should be clear about perhaps in a note on use The Chair

agreed that a note on use would be fine although he noted that the

instructionrsquos title clearly says it applies to breach of contract actions

Payton questioned the wording of question number 1 He does not like

the syntax Shouldnrsquot the question really be ldquoWhat are the reasonable

costs to claimant of completing the work in accordance with the contract

minus the balance remaining under the contractrdquo

The Chair said that the instruction itself is exactly what Payton

suggested He does not think thatrsquos legalese and thus likes it for the

verdict form The Chair said that the Committee does not need to stick to

ldquodamagesrdquo all the time

Palmer noted that questions 2 and 3 carry over the use of ldquodamagesrdquo so

if wersquore changing question 1 we need to change those too to stay

consistent The Chair said that ldquodamagesrdquo could just be changed to

ldquocostsrdquo there

The Committee amended proposed question 1 through various group

input in accordance with Paytonrsquos suggestion to say ldquoWhat are the

reasonable costs (claimant) proved are required to complete the work in

accordance with the contract minus the balance remaining under the

contractrdquo The Committee also adopted the Chairrsquos suggestion of

changing ldquodamagesrdquo to ldquocostsrdquo in questions 2 and 3


12

The Chair also said that the Committee should add a note on use that this

only applies to breach of contract and not tort claims per Haasrsquo

suggestion regarding a negligence case ldquoThis model verdict form does

not apply to independent tort claims such as against licensed

professionalsrdquo

The Chair also said that the Committee should add a note on use

regarding consequential damagesmdashldquoThe case may include other damages

like consequential damagesrdquo

The Committee then engaged in some additional discussion about the

flow of the instruction For example Sipple thought the blank 4 before

a is confusing Palmer wondered if these should actually be two separate

verdict forms one for cases involving economic waste and a separate one

for cases that do not Barrett liked that idea

After some additional discussion Sanchez suggested that the

subcommittee would split this into 2 separate forms look at it fresh and

try to improve the flow Per Judge Croomrsquos suggestion the Committee

decided to table this and revisit it at the next meeting

5046 Obligation to Pay Money Only

After a brief discussion the Committee agreed that there was no need for

a model verdict form for instruction 5046 at this time

5047 Buyerrsquos Damages for Breach of Contract for Sale of Real Property

Like the proposed verdict form for instruction 5044 discussed

previously this proposed form inadvertently refers to the ldquoCivilrdquo

instruction in the note on use when it should refer to the ldquoContract and

Business instructionrdquo The Committee unanimously agreed to make that

change

Rost wondered whether the expenses a claimant can recover are limited

to examining title He asked about due diligence for instance

The Chair stated that the note on use has a case with a two-paragraph

quote addressing this Itrsquos an older case though


13

Rost and Haas engaged in some additional discussion on this point They

suggested that the law probably has evolved since that case because

there wasnrsquot a phase-two environmental survey at the time

The Chair said that Williams Rost Payton and Haas who do this work

regularly should take a look at this issue a little more closely including a

renewed look at the entire instruction itself along with the verdict form

and report back at the next meeting The Chair suggested including

Farach in the discussion as well

Payton then inquired about proposed question 3 on the draft verdict form

regarding bad faith Gache said therersquos case law about additional

damages interacting with a bad faith breach Payton wanted to know

what more you get for bad faith Gache said that according to the cases

in the note on use you get the amount paid toward the purchase price

(the deposit) and reasonable expenses of examining title in addition to

benefit of the bargain damages Haas said this is the unique circumstance

where bad faith matters

Turkel asked if this concept of a bad faith breach is peculiar to sales of

real property Gache said yes Haas said itrsquos the only context where the

nature of the breach matters

Separately Barrett expressed his view that questions 2 and 3 should be

broken down in brackets Gache said the questions should mirror the

instruction The Chair thought those were good comments and asked the

subcommittee to review the issue holistically

5048 Sellerrsquos Damages for Breach of Contract to Purchase Real

Property

This is the flip side of the previous instruction The Chair designated the

same subcommittee (Haas Payton Rost and Williams) to review this

instruction and verdict form too so that the Committee can examine both

sides of the coin

5049 Mitigation of Damages

The Chair turned next to the draft model verdict form for instruction

5049 regarding mitigation of damages


14

Altenbernd asked if the jury would have already determined an amount

of gross damages by this point and then this form represents the amount

to be subtracted He wondered whether the verdict form should better

explain the concept to the jury He also commented that if the jury is

required to do math it will inevitably get messed up

The Chair appreciated Altenberndrsquos concerns but was not sure how else

to do this Itrsquos the law and itrsquos a subtraction

Altenbernd said that the proposed verdict form does not come to a

number the jury is awarding Rather it comes to two numbers and the

judge then has to do the math And this form does not tell the jury thatrsquos

whatrsquos going to happen So Altenbernd said that this form is necessary

only if one side wants to preserve issues regarding the amount of

mitigation

Judge Scaglione commented that hersquod rather do the math himself and

thinks the trial judge should do that not the jury The Chair wondered

whether the verdict form should explain that to the jury Altenbernd said

that the standard verdict form in a comparative negligence case tells the

jury to just answer the questions and the judge will figure out the impact

later

Turkel asked whether a duty to mitigate always exists The Chair said

no the note on use explains this He expressed his view that the concept

is often misunderstood

The Committee then engaged in a discussion about the substance of the

form Gache suggested that the draft is a bit of a mess and is not

accurately stating the law

Haas commented that there is no reason to include question 3 Palmer

and Barrett have seen this in the construction defect context a lot Barrett

said that could be what question 3 is driving atmdashif you have to pay

someone $500 to tarp your roof to avoid the whole house being ruined

you get that money back

Haas though said that the defendant has to prove that the claimant had a

burden Gache disagreed If you look at the instruction he said itrsquos the

claimantrsquos burden to show what was spent in mitigation


15

Barrett said that the last part of question number 1 ldquoand you should

proceed to question 3rdquo should also be in brackets to go with question 3

itself being in brackets because more often than not therersquos nothing the

plaintiff should have or could have done So if the answer to question 1

is a no oftentimes thatrsquos the end of the inquiry

Gache though thought there are times when the claimant spent

something but the jury reasonably decided the claimant couldrsquove done

more Haas suggested a note on use to address partial mitigation so the

judge can do some combination in that situation

Sanchez asked for a hypothetical to see how the calculations work After

working through some hypos the Committee became concerned that a

yes on question 1 and a yes on question 3 are impossible to have

together and that the draft form is punishing a claimant for engaging in

reasonable efforts to mitigate

Gache suggested that the whole form be reworked to address the issues

raised by the various hypothetical scenarios The Chair agreed that the

Committee should revisit the issue at its next meeting He appointed

Gache Benrubi Pollan and Barrett to a subcommittee to review the

issue

50410 Present Cash Value of Future Damages

The Committee agreed that there is no need for a verdict form

50411 Nominal Damages


E Subcommittee Restrictive Covenants (Osherow Serafin and Rost)

Osherow reported that he planned to continue working on a potential

instruction regarding restrictive covenants and would report back to the

Committee at the next meeting The Chair indicated that although

therersquos no harm in continuing to research the issue he did not think it

was worth a lot of additional time because this issue doesnrsquot come up

very often and typically doesnrsquot get to the jury The Committee has

spent considerable time debating this topic in the past


16

F Subcommittee Tortious Interference (Turkel Huey Altenbernd and

Boyle)

Turkel reported that the subcommittee does not yet have anything ready

to present to the Committee He continues to believe that the

instructions from Manny Farachrsquos book should be part of the standard

instructions

The Chair will take the lead on this issue and bring a proposal to the

Committee at the next meeting

G Subcommittee Independent Tort Doctrine (Burns Boyle Croom

Sanchez Spector)

Judge Burns stated that the most recent appellate opinions have

clarified that this is a question of law and not of fact A May decision

from the Fifth DCA involving Mark Boyle on the losing side put the

nail in the coffin on this issue

Judge Burns suggested tabling the discussion one last time for Boyle to

address at the next meeting given his involvement in the recent Fifth

DCA case But the Chair expressed his view that this isnrsquot going

anywhere He suggested that Judge Burns check with Boyle and leave

it to him to decide whether to bring this back up for any further

discussion

H Subcommittee FDUTPA (Bitman Sipple and Soloman)

Solomon reported on the subcommitteersquos most recent work towards

developing a proposed instruction addressing FDUTPA The

subcommitteersquos charge based on the discussion at the last meeting was

to come up with different versions of a potential instruction based on

the goods and services context and the competitor context But as they

looked at it the basic law is the same in those situations The

differences according to Solomon mostly have to do with the

determination of damages She therefore summarized the

subcommitteersquos proposal set forth on page 82 of the agenda

Sipple said that the middle part of the proposed instruction concerning

legal cause raises a nagging question He did some additional research


17

and noted that there are two kinds of plaintiffs in a FDUTPA case (1)

an aggrieved party and (2) an enforcing party These instructions were

crafted with the idea of the plaintiff being an aggrieved party And he

believes they are correct in that context

If published though the Attorney Generalrsquos office might pipe up and

say the legal cause standard is not correct when the AG is the plaintiff

as an enforcing party based on State v Wyndham International 869

So 2d 592 (Fla 1st DCA 2004) which says that the AG doesnrsquot have

to prove actual causation or reliance just that the practice was likely to

deceive a consumer acting reasonably under the circumstances Sipple

therefore suggested that the Committee add a note on use disclaiming

any attempt to draft jury instructions when the AG is the plaintiff

based on the Wyndham case

Osherow moved to adopt the instructions as proposed by the

subcommittee with the additional note on use suggested by Sipple

Payton seconded The Committee unanimously approved the

proposal The Chair thanked the subcommittee for its good work on

this issue

I Subcommittee Trespass (Altenbernd Gewirtz Palmer and Gentile)

Gewirtz took a quick look at this issue as did Altenbernd but the

subcommittee has not yet gotten this in a format thatrsquos ready to share

with the entire Committee Judge Gentile volunteered to quarterback it

moving forward

J Subcommittee Unilateral Mistake (Altenbernd Gentile Gunn and

Palmer)

The Committee engaged in a discussion regarding the state of law on

unilateral mistake in light of DePrince v Starboard to determine

whether an instruction is needed and if so whether to draft a proposal

along with a proposed verdict form

Palmer reminded the Committee of his attempt to craft a new

instruction back in December taking into account the DePrince

decision but the remainder of the subcommittee has not had a chance

to review and comment on Palmerrsquos draft The Chair stated that


18

Palmerrsquos draft as updated by the subcommittee if necessary should be

distributed as part of the agenda for the next meeting

K Anticipatory Breach (Payton Benrubi and Huey)

Payton raised a concern with the instruction on anticipatory breach

41623 based on a case he is currently litigating He believes that the

current instruction does not correctly define an anticipatory breach it

simply expresses the rule pertaining to breach Whatrsquos missing is the

fact that to be an anticipatory breach there must be a time for

performance that is in the future Payton suggested a revised

instruction set forth on page 103 of the agenda

Barrett questioned the use of ldquopurposerdquo rather than ldquointentrdquo in Paytonrsquos

proposal but Payton said that ldquopurposerdquo comes from the cases

Haas expressed his view that the instruction is already pretty clear

about repudiation citing to the note on use But Payton disagreed and

stated that the note on use is a little mushy He used his current case as

an example in which the seller claims ldquothe market is slowrdquo was an

anticipatory breach whereas the buyer says it always had an intention to

purchase more

Payton then discussed a case called 24 Collection where a contractor in

Miami made extra-contractual demands on the other party said if you

donrsquot agree Irsquom not doing any more work under the contract and that

was found to be an anticipatory breach

After some additional discussion the Chair summarized the issue He

said the problem is that the current instruction says nothing about the

required element that the action alleged to cause the anticipatory breach

is something done before the time it was due So the current

instruction is really just a breach of contract instruction

The Committee then considered the phrase ldquoclearly and positivelyrdquo in

the instruction The Chair does not think ldquodistinct unequivocal and

absoluterdquo which comes from the case law is an overly legalese-y

phrase and he does not believe ldquoclearly and positivelyrdquo means the

same thing


19

Palmer suggested that ldquoindicatedrdquo also isnrsquot consistent with direct and

unequivocal Barrett suggested that it could be ldquocommunicaterdquo or

ldquoconveyrdquo Payton said the case law uses ldquodemonstraterdquo Rost said

ldquodemonstraterdquo is used in other contexts Palmer agreed that

ldquodemonstraterdquo is better than ldquocommunicaterdquo

The Chair said that the phrasing should be active rather than passive

So ldquodemonstrated distinctly unequivocally and absolutely that helliprdquo

Some additional grammatical suggestions were made Rost stated that

the instruction should say ldquowould not or could notrdquo rather than ldquowould

or could notrdquo Serafin agreed

Gache questioned whether this instruction is different from prior breach

or first breach Thatrsquos not anticipatory breach If this is used as an

affirmative defense Gache said it should be called first breach not

anticipatory breach Haas said that the Committee could express that

difference in a note on use

The Chair said that the Committee should approve the revision to the

affirmative instruction first then have a subcommittee take a look at

the defense The same subcommittee that reviewed the affirmative

instruction will take a look at the affirmative defense

Payton moved to adopt the instruction as proposed by the

subcommittee and revised by the Committee during the meeting

Rost seconded The Committee unanimously approved the revision

The Committee also approved an update to the notes on use to add

additional cases found by the subcommittee during its review

L CLE Credit (Payton)

Payton reported on his attempts to see whether members can obtain

CLE credit for their work on the Committee The Board of Legal

Specialization and Education cannot approve the request rather it must

go directly to the Board of Governors

Davis stated that the Board of Governors recently told the Civil

Procedure Rules Committee no when that Committee made a similar

request


20

M New Appointments and Reappoints to the Committee

The Chair thanked Sipple for heading up the subcommittee on

applications for new membership on the Committee Two potential

new members appliedmdashJudge Gary Wilkinson from Jacksonville and

James McCann from West Palm Beach Those applicants were

approved by the Committee and have been forwarded to Justice Luck

for consideration


The Committee engaged in a discussion about the timing of its next meeting

Various dates and locations were floated as possibilities including November

January and February and north and south Florida spots Ultimately the

Committee settled on January 23 and 24 in West Palm Beach most likely at the

Fourth District Court of Appeal if it is available The Committee will consider

Tallahassee for its second meeting next year Gache and Serafin will work to

coordinate the Fourth DCA and Davis will report back to the Committee when the

location has been confirmed

7 Adjournment

The Chair adjourned the meeting at 1241 pm on Friday August 2 2019


FORM 5045 MODEL FORM OF VERDICT FOR OWNERS DAMAGES FOR BREACH

OF CONTRACT TO CONSTRUCT IMPROVEMENTS ON REAL PROPERTY

VERDICT

[Issues of contract formation and liability will be determined utilizing the appropriate

interrogatory verdict questions regarding those issues]

In cases where the defendant does not contend that the damages claimed by the claimant

constitute unreasonable economic waste

1 What is the amount of damages (claimant) proved were reasonable to

complete the work in accordance with the contract minus the balance remaining under the

contract

$________________________

In cases where the defendant contends that the damages claimed by the claimant constitute

unreasonable economic waste

2 Did Defendant prove that any part of the damages claimed by (claimant)


YES___________ NO___________

If your answer to question number 2 is NO proceed to Question 3

If your answer to question number 2 is YES skip Question 3 and proceed to Question 4



contract

$________________________

Proceed to Question 4

4

a For that part of the damages if any that DO NOT constitute unreasonable

economic waste What is the amount of damages (claimant) proved were reasonable to


contract

$________________________


b For that part of the damages if any that DOES constitute unreasonable

economic waste What is the difference between the fair market value of (claimants) real

property as improved and its fair market value if (defendant) had constructed the

improvements in accordance with the contract measured at the time of the breach

$________________________

[Insert further instructions regarding proceeding to additional questions as appropriate]

NOTES ON USE

1 This model verdict form should be used in conjunction with Standard Jury

Instruction--Contract and Business 5045 (Owners Damages for Breach of Contract to Construct

Improvements on Real Property)


FORM 5045(A) MODEL FORM OF VERDICT FOR OWNERS DAMAGES FOR

BREACH OF CONTRACT TO CONSTRUCT IMPROVEMENTS ON REAL

PROPERTY WHERE NO UNREASONABLE ECONOMIC WASTE IS CLAIMED

VERDICT



contract

$________________________

$________________________

NOTES ON USE





FORM 5045(B) MODEL FORM OF VERDICT FOR OWNERS DAMAGES FOR


PROPERTY WHERE UNREASONABLE ECONOMIC WASTE IS CLAIMED

VERDICT



YES___________ NO____________

2 For that part of the damages that constitute unreasonable economic waste

What is the difference between the fair market value of (claimants) real property as

improved and its fair market value if (defendant) had constructed the improvements in

accordance with the contract measured at the time of the breach

$________________________

NOTES ON USE





From Harry PaytonTo Gunn Tracy RCc Davis Mikalla circivdivifljud13org Osherow Mark RSubject RE Fraud 41628Date Saturday July 20 2019 34952 PMAttachments image001png

Tracy Thanks for the response I am cutting and pasting the civil fraud charge which Ithink states the law very well

4097 ISSUES ON PLAINTIFFrsquoS CLAIM mdash FRAUDULENT MISREPRESENTATION

The issues for you to decide on (claimantrsquos) claim [for fraudulent misrepresentation] are

The bracketed language should be used for clarity when there are also claims for negligentmisrepresentation andor negligently supplying false information for the guidance of others

First whether (defendant) [intentionally] made a false statement concerning a materialfact

The word ldquointentionallyrdquo should be used for clarity when there is also a claim for negligentmisrepresentation

Second whether (defendant) knew the statement was false when [he] [she] [it] made itor made the statement knowing [he] [she] [it] did not know whether it was true or false

Third whether (defendant) intended that another would rely on the false statement

Fourth whether (claimant) relied on the false statement and if so

Fifth whether the false statement was a legal cause of [loss] [injury] [or] [damage] to(claimant)

[On this claim for fraudulent misrepresentation the] (claimant) may rely on a falsestatement even though its falsity could have been discovered if (claimant) had made aninvestigation However (claimant) may not rely on a false statement if [he] [she] [it] knew it wasfalse or its falsity was obvious to [him] [her] [it]

The bracketed language should be used for clarity when there is also a claim for negligentmisrepresentation

NOTES ON USE FOR 4097

1 It appears that Florida recognizes two separate theories of recovery for damageoccurring as a result of misrepresentation One basis of recovery is for fraud and the other is for


negligent misrepresentation The elements of those two theories are set forth in First InterstateDevelopment Corp v Ablanedo 511 So2d 536 (Fla 1987) Johnson v Davis 480 So2d 625 (Fla1985) Lance v Wade 457 So2d 1008 (Fla 1984) Wallerstein v Hospital Corp of America 573So2d 9 (Fla 4th DCA 1990) Atlantic National Bank v Vest 480 So2d 1328 (Fla 2d DCA 1985)

2 One or more issues in instruction 4097 may need to be omitted and the issues

renumbered if there is no question of fact for determination by the jury A preemptive instruction onomitted issues should be given only if required by events during the trial

3 The recipient of a fraudulent misrepresentation is justified in relying upon its truth

even when an investigation might have revealed its falsity unless he or she knows therepresentation to be false or its falsity is obvious to him or her Besett v Basnett 389 So2d 995 (Fla1980)

4 There must be actual damage for recovery in a fraud action Fraud that does not

result in damage is not actionable Casey v Welch 50 So2d 124 (Fla 1951) Stokes v Victory LandCo 128 So 408 (Fla 1930) Pryor v Oak Ridge Development Corp 119 So 326 (1928) Wheeler vBaars 15 So 584 (Fla 1894) National Aircraft Services Inc v Aeroserv International Inc 544 So2d1063 (Fla 3d DCA 1989) National Equipment Rental Ltd v Little Italy Restaurant amp DelicatessenInc 362 So2d 338 (Fla 4th DCA 1978) The damage attributable to the fraud must be separate fromthe damages flowing from a breach of contract AFM Corp v Southern Bell Telephone amp TelegraphCo 515 So2d 180 (Fla 1987) National Aircraft Services Inc v Aeroserv International Inc 544So2d 1063 (Fla 3d DCA 1989) John Brown Automation Inc v Nobles 537 So2d 614 (Fla 2d DCA1988) Rolls v Bliss amp Nyitray Inc 408 So2d 229 (Fla 3d DCA 1981) dism 415 So2d 1359 (Fla1982) We in contrast are working on the affirmative defense We are not talking substantively We are talking about how the charge is deliveredmdashform over substance in this case Doyou have further thoughts on this Regards Harry

H a r r y a P a y t o n B C S P a y t o n amp a S S o C i a t e S L L C2 S Biscayne Blvd Suite 2300Miami FL 33131t 3053723500 | m 3052133500paytonpayton-lawcom | wwwpayton-lawcomBoard Certified Specialist Business Litigation and Civil trial


From Tracy Gunn lttgunngunnappealscomgt Sent Saturday July 20 2019 337 PMTo Harry Payton ltpaytonpayton-lawcomgtCc Davis Mikalla ltmidavisfloridabarorggt circivdivifljud13org Mark OsherowltmarkosherowpllccomgtSubject Re Fraud 41628 Hi Harry and Mikalla I am the other member of this subcommittee For what itrsquos worth I agree with Markrsquos concerns but Ido think the instruction merits further discussion I was hoping we would have time to schedule asubcommittee call before the August meeting so that we could hash it out more in thesubcommittee but I know that our deadline is approaching I also believe that another subcommittee is looking at the SJI-civil fraud instruction so it would behelpful to coordinate those efforts We may end up with multiple fraud instructions for differentsituations Even if we do not we can perhaps indicate better the context(s) in which this instructionis intended to apply Tracy GunnGunn Appellate Practice PASent from my iPhone

On Jul 20 2019 at 249 PM Harry Payton ltpaytonpayton-lawcomgt wrote

Mikalla I posed to the subcommittee that the current affirmative defense of fraudcharge and verdict form are too limiting because it references amisrepresentation ldquoinducing a contractrdquo Attached is my email to thesubcommittee members with proposed changes Mark Osherow responded His comments are below in bold I think the matter is worthy of discussion Good points However I think it is fine the way it is This is more in thenature of a comment on use I think the change makes use of theinstruction more confusing So I would suggest that if any change ismade we indicate this instruction is limited to contractual setting and theinstruction can be modified for other types of situations that fall within aclaim for fraudulent misrepresentation Indeed this is a defense which willby its nature be subject to what the actual instruction is on the claim


CAUTION EXTERNAL SENDER STOP WHEN UNSURE Never click on links or open attachments ifsender is unknown and never provide user ID or password

Please note Florida has very broad public records laws Many written communications to orfrom The Florida Bar regarding Bar business may be considered public records which mustbe made available to anyone upon request Your e-mail communications may therefore besubject to public disclosure

Regards Harry ltimage001pnggt

H a r r y a P a y t o n B C S P a y t o n amp a S S o C i a t e S L L C2 S Biscayne Blvd Suite 2300Miami FL 33131t 3053723500 | m 3052133500paytonpayton-lawcom | wwwpayton-lawcomBoard Certified Specialist Business Litigation and Civil trialltimage002jpggt

ltEmail to subcommittee re modifying aff def of fraudpdfgt


From Harry PaytonTo Davis MikallaCc circivdivifljud13org Osherow Mark R Gunn Tracy RSubject Fraud 41628Date Saturday July 20 2019 24918 PMAttachments image001png

Email to subcommittee re modifying aff def of fraudpdf

Mikalla I posed to the subcommittee that the current affirmative defense of fraud charge and verdictform are too limiting because it references a misrepresentation ldquoinducing a contractrdquo Attached is my email to the subcommittee members with proposed changes MarkOsherow responded His comments are below in bold I think the matter is worthy ofdiscussion Good points However I think it is fine the way it is This is more in the nature of acomment on use I think the change makes use of the instruction more confusing SoI would suggest that if any change is made we indicate this instruction is limited tocontractual setting and the instruction can be modified for other types of situationsthat fall within a claim for fraudulent misrepresentation Indeed this is a defensewhich will by its nature be subject to what the actual instruction is on the claim Regards Harry

H a r r y a y t o n

P a y t o n amp a S S o C i a t e S L L C2 S Biscayne Blvd Suite 2300Miami FL 33131t 3053723500 | m 3052133500paytonpayton-lawcom | wwwpayton-lawcomBoard Certified Specialist Business Litigation and Civil trial


a P B C S


For the best experience open this PDF portfolio in Acrobat X or Adobe Reader X or later

Get Adobe Reader Now

From Harry PaytonTo circivdivifljud13org Mark Osherow Tracy GunnSubject Standard Jury Instruction--fraudDate Saturday June 22 2019 11900 PMAttachments image001png

Dear Subcommittee Members

I think the charge and the verdict form are too limiting because each refers to amisrepresentation inducing a contract A fraudulent misrepresentation may be made formany more reasons than inducing a contract Business torts are not always based oncontracts I think it is best said that the representation was made to induce action and weshould leave it open for the court to describe what action the misrepresentor sought toinduce It is not always execution of a contract It could be forbearance of one sort oranother Or it could be a misrepresentation to induce other conduct than forbearancemdashtheexamples are limitless Fraud is a false statement knowingly made with intent to deceive relied upon andproximately resulting in injury to the representee Turning to 41628 I would propose thefollowing To establish the defense of fraud (defendant) must prove all the following(eliminating the article ldquotherdquo)

1 (Claimant) represented that (insert alleged fraudulent statement) and thatrepresentation was material

(omitting ldquoto the transactionrdquo) 2 (Claimant) knew the representation was false

3 (Claimant) made the representation to induce (defendant) to (describe

what defendant was induced to do) 4 (Defendant) would not have (describe defendantrsquos action resulting from the

misrepresentation) had [he she it] known the representation was false On this defense (defendant) may rely on a false statement even though itsfalsity could have been discovered if (defendant) had made an investigation However (defendant) may not rely on a false statement if [he she it] knew itwas false or its falsity was obvious to [him her it] In making thisdetermination you should consider the totality of the circumstancessurrounding the type of information transmitted the nature of thecommunication between the parties and the relative position of the parties

H a r r y a P a y t o n B C S


41628 AFFIRMATIVE DEFENSE ndash FRAUD

To establish the defense of fraud (defendant) must prove all of the following

1 (Claimant) represented that (insert alleged fraudulent statement) and thatrepresentation was material to the transaction

2 (Claimant) knew that the representation was false

3 (Claimant) made the representation to persuade induce (defendant) to agree to thecontract

4 (Defendant) relied on the representation and

5 (Defendant) would not have agreed to the contract if had [he] [she] [it] had knownthat the representation was false

On this defense (Defendant) may rely on a false statement even though its falsity could have been discovered if (defendant) had made an investigation However (defendant) may not rely on a false statement if [he] [she] [it] knew it was false or its falsity was obvious to [him] [her] [it] In making this determination you should consider the totality of the circumstances surrounding the type of information transmitted the nature of the communication between the parties and the relative positions of the parties

SOURCES AND AUTHORITIES FOR 41628

1 Fraud must be pled as an affirmative defense or it is waived Cocoves v Campbell 819So2d 910 912 (Fla 4th DCA 2002) Peninsular Fla Dist Council of Assemblies of God v Pan Am Inv amp Dev Corp 450 So2d 1231 1232 (Fla 4th DCA 1984) Ash Chem Inc v Deprsquot of Envtl Regulation 706 So2d 362 363 (Fla 5th DCA 1998)

2 In order to raise an affirmative defense of fraud the ldquopertinent facts and circumstancesconstituting fraud must be pled with specificity and all the essential elements of fraudulent conduct must be statedrdquo Zikofsky v Robby Vapor Systems Inc 846 So2d 684 684 (Fla 4th DCA 2003) (citation omitted)

3 The party seeking to use the defense of fraud must specifically identifymisrepresentations or omissions of fact Cocoves v Campbell 819 So2d 910 912-13 (Fla 4th DCA 2002)

4 Fraud must be pled with particularity Cocoves v Campbell 819 So2d 910 913 (Fla4th DCA 2002) Thompson v Bank of New York 862 So2d 768 (Fla 4th DCA 2003)

5 Mere statements of opinion are insufficient to constitute the defense of fraud Thompsonv Bank of New York 862 So2d 768 769 (Fla 4th DCA 2003) Carefree Vills Inc v KeatingProps Inc 489 So2d 99 102 (Fla 2d DCA 1986)


6 The elements of fraudulent misrepresentation are ldquo(1) a false statement concerning a

material fact (2) the representorrsquos knowledge that the representation is false (3) an intention that the representation induce another to act on it and (4) consequent injury by the party acting in reliance on the representationrdquo Butler v Yusem 44 So3d 102 105 (Fla 2010)

7 ldquoJustifiable reliance is not a necessary element of fraudulent misrepresentationrdquo Butler

v Yusem 44 So3d 102 105 (Fla 2010)


FORM 41628 MODEL FORM OF VERDICT FOR AFFIRMATIVE DEFENSE-FRAUD

VERDICT

1 a Did (defendant) prove that (claimant) represented that (insert alleged fraudulent statement)

YES NO

If your answer to question 1a is NO then verdict is for (claimant) on this defense and you should not proceed further except to date and sign this verdict form and return it to the courtroom If your answer to question 1a is YES please answer question 1b

1 b Was Did defendant prove the (alleged fraudulent statement)represen ta t ion was false

YES NO

If your answer to question 1b is NO then verdict is for (claimant) on this defense and you should not proceed further except to date and sign this verdict form and return it to the courtroom If your answer to question 1b is YES please answer question-i 2 - lt-1c Formatted Font Not Italic

1 c Did (defendant) prove that the representation wasmaterial to the contract

YES NO

If your answer to question 1c is NO then verdict is for (claimant) on this defense and you should not proceed further except to date and sign this verdict form and return it to the courtroom If your answer to question 1c is YES please answer question 2

2 Did (defendant) prove that (claimant) knew that therepresentation was false

YES NO

If your answer to question 2 is NO your verdict is for (claimant) on this defense and you should not proceed further except to date and sign this


verdict form and return it to the courtroom If your answer to question 2 is YES please answer question 3

rep

3 Did (defendant) prove that (claimant) made the resentation to persuade induce (defendant) to agree to the contract

YES NO

If your answer to question 3 is NO your verdict is for (claimant) on this defense and you should not proceed further except to date and sign this verdict form and return it to the courtroom If your answer to question 3 is YES please answer question 4

4l

t-

yfbull3 Did (defendant) prove that (defendant) relied on the representation

YES NO


6 pound 5 Did (defendant) prove that (defendant) would not have agreed to the contract if (defendant) had known that the representation was false

YES NO

If your answer to question 5 is NO your verdict is for (claimant) on this defense and you should not proceed further except to date and sign this verdict form and return it to the courtroom If your answer to question 5 is YES your verdict is for (defendant) on this defense and you should not proceed further except to date and sign this verdict form and return it to the courtroom

ljnsert further instructions regarding proceeding to additional questions as

appropriate 7


NOTES ON USE

1 This model verdict form should be used in conjunction with Standard Jury Instruction-Contract and Business 41628 (Affirmative Defense-Fraud)

2 This verdict form is for use in the case in which there is an alleged misrepresentation Formatted List Paragraph Numbered + Level 1 +

Cases involving omissions or concealment require modification to the instruction and Numbering Style 1 2 3 hellip + Start at 1 + AlignmentLeft + Aligned at -041 + Indent at 008

verdict form


o Other Committee members found cases holding that undue influence is an affirmative defense

o This verdict form was tabled until the June 2017 meeting bull The discussion turned to form 41628 for the affirmative defense of fraud

o The Committee discussed whether element 2 is falsity or knowledge of falsity

o The Chair suggested breaking out the elements of making the representation and that the representation was false

o The Committee discussed when a statement by omission applies and whether the corresponding instruction applies broadly to fraud or just to fraudulent misrepresentation

o There was a suggestion to break out element 1 into (a) representation (b) falsity and (c) materiality

o The Chair tabled the rest of this discussion and the other verdict forms for the next meeting

Old Business

bull The Chair explained that the instructions listed in Agenda item 4 have been

approved but not published bull Bar Liaison Krys Godwin explained that the goal is to get the approved

instructions in the Florida Bar News for comment bull Godwin is working on the numbering for the fiduciary duty instructions with the

Liaison for the SJI Civil Committee As soon as both committees approve the fiduciary duty instructions they are ready to file

bull 4511-4514 will be placeholders for prefatory instructions Upcoming Meeting and Adjournment The next Committee meeting was tentatively scheduled for June 1-2 2017 in Orlando (exact location to be determined) The Chair adjourned the meeting at 1205 pm on February 17 2017

14


41626 AFFIRMATIVE DEFENSE ndash UNILATERAL MISTAKE OF FACT

(Defendant) claims that [he] [she] [it] should be able to set aside the contract because [he] [she] [it] was mistaken about (insert description of mistake) To establish this defense (defendant) must prove all of the following

1 (Defendant) was mistaken about (insert description of mistake) at the time theparties made the contract

2 The mistake was not the result of an inexcusable lack of due care

3 Denial of release from the contract would be inequitable

4 (Plaintiff) has not so changed its position in reliance on the contract thatrescission would be unconscionable

and

5 (Defendant) did not bear the risk of mistake A party bears the risk of a mistakewhen

[the partiesrsquo agreement assigned the risk to [him] [her] [it]] [or] [[he] [she] [it] was aware at the time the contract was made that [he] [she] [it]

had only limited knowledge about the facts relating to the mistake but decided to proceed with the contract]

The court should give the first option only if the court finds that the contract is ambiguousregarding whether the contract assigns the risk to the defendantThe court should give the second option only if there is competent substantial evidencethat at the time the contract was made the defendant had only limited knowledge withrespect to the facts relating to the mistake but treated the limited knowledge as sufficient


1 The court should not give this instruction if it determines that the alleged mistakewas not material

2 The court should not give this instruction if it finds that the contract unambiguouslyassigns the risk to the defendant or if the court assigns the risk of mistake to the defendant on the ground that it is reasonable under the circumstances to do so



1 A contract may be ldquoset aside on the basis of unilateral mistake unless (a) the mistake is the result of an inexcusable lack of due care or (b) the other party has so changed its position in reliance on the contract that rescission would be unconscionablerdquo BMW of N Am v Krathen 471 So 2d 585 588 (Fla 4th DCA 1985) (citing Maryland Cas Co v Krasnek 174 So 2d 541 (Fla 1965) Orkin Exterminating Co v Palm Beach Hotel Condo Assrsquon Inc 454 So 2d 697 (Fla 4th DCA 1984) Pennsylvania Natrsquol Mutual Cas Ins Co v Anderson 445 So 2d 612 (Fla 3d DCA 1984)) DePrince v Starboard Cruise Services Inc No 3D16-1149 2018 WL 3636849 (Fla 3d DCA Aug 1 2018) 2 Sections 153 and 154 of the Restatement (Second) of Contracts (1979) provide sect 153 When Mistake of One Party Makes a Contract Voidable Where a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him the contract is voidable by him if he does not bear the risk of the mistake under the rule stated in sect 154 and (a) the effect of the mistake is such that enforcement of the contract would be unconscionable or (b) the other party had reason to know of the mistake or his fault caused the mistake sect 154 When a Party Bears the Risk of a Mistake A party bears the risk of a mistake when (a) the risk is allocated to him by agreement of the parties or (b) he is aware at the time the contract is made that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient or (c) the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so Initial draft prepared by Mitchell O Palmer on 12-20-18


From Mitchell PalmerTo Altenbernd Chris Gentile Geoffrey Gunn Tracy RCc Huey Paul Davis MikallaSubject Jury Instruction 41626--Affirmative Defense--Unilateral Mistake of FactdocxDate Thursday December 20 2018 115456 AMAttachments Jury Instruction 41626--Affirmative Defense--Unilateral Mistake of Factdocx

Dear subcommittee members

Since I am new to the Committee on Standard Jury Instructions in Contract andBusiness Cases (our recent meeting in Orlando was my first meeting) I amunsure of protocol Nevertheless I have ventured out on a limb and haveprepared a proposed instruction on unilateral mistake Each of us is on theldquounilateral mistakerdquo subcommittee

Attached is my draft for your review It is patterned of course on the ldquooldrdquoversion of the instruction but with modifications that reflect the SupremeCourtrsquos Krasnek decision and the Third DCArsquos August 1 2018 DePrincedecision Based on DePrince the element of inducement has been removed

Finally DePrince has been added to the string cite under Sources andAuthorities (the case does not yet have a Southern Reporter citation)

I hope that I have not been too bold in striking out on my own but thought thateveryone might appreciate my efforts

Mitchell O ldquoMickeyrdquo PalmerCounty AttorneyManatee County Government



41626 AFFIRMATIVE DEFENSE ndash UNILATERAL MISTAKE OF FACT


1(Defendant) was mistaken about (insert description of mistake) at the time the

parties made the contract

2The mistake was not the result of an inexcusable lack of due care

3Denial of release from the contract would be inequitable

4(Plaintiff) has not so changed its position in reliance on the contract that rescission would be unconscionable

and

5(Defendant) did not bear the risk of mistake A party bears the risk of a mistake when

[the partiesrsquo agreement assigned the risk to [him] [her] [it]]

[or]

[[he] [she] [it] was aware at the time the contract was made that [he] [she] [it] had only limited knowledge about the facts relating to the mistake but decided to proceed with the contract]

The court should give the first option only if the court finds that the contract is ambiguous regarding whether the contract assigns the risk to the defendant

The court should give the second option only if there is competent substantial evidence that at the time the contract was made the defendant had only limited knowledge with respect to the facts relating to the mistake but treated the limited knowledge as sufficient

NOTES ON USE FOR 41626

1The court should not give this instruction if it determines that the alleged mistake was not material

2The court should not give this instruction if it finds that the contract unambiguously assigns the risk to the defendant or if the court assigns the risk of mistake to the defendant on the ground that it is reasonable under the circumstances to do so

SOURCES AND AUTHORITIES FOR 41626

1A contract may be ldquoset aside on the basis of unilateral mistake unless (a) the mistake is the result of an inexcusable lack of due care or (b) the other party has so changed its position in reliance on the contract that rescission would be unconscionablerdquo BMW of N Am v Krathen 471 So 2d 585 588 (Fla 4th DCA 1985) (citing Maryland Cas Co v Krasnek 174 So 2d 541 (Fla 1965) Orkin Exterminating Co v Palm Beach Hotel Condo Assrsquon Inc 454 So 2d 697 (Fla 4th DCA 1984) Pennsylvania Natrsquol Mutual Cas Ins Co v Anderson 445 So 2d 612 (Fla 3d DCA 1984)) DePrince v Starboard Cruise Services Inc No 3D16-1149 2018 WL 3636849 (Fla 3d DCA Aug 1 2018)

2Sections 153 and 154 of the Restatement (Second) of Contracts (1979) provide

sect 153 When Mistake of One Party Makes a Contract Voidable

Where a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him the contract is voidable by him if he does not bear the risk of the mistake under the rule stated in sect 154 and

(a) the effect of the mistake is such that enforcement of the contract would be unconscionable or

(b) the other party had reason to know of the mistake or his fault caused the mistake

sect 154 When a Party Bears the Risk of a Mistake

A party bears the risk of a mistake when

(a) the risk is allocated to him by agreement of the parties or

(b) he is aware at the time the contract is made that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient or

(c) the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so

Initial draft prepared by Mitchell O Palmer on 12-20-18

To Contract Jury Instruction Committee

From Chris W Altenbernd

Standard Instruction 41624 Breach of the implied covenant of good faith and fair dealing

January 13 2020

I have recently had several occasions to deal with this instruction and I have

some doubts about its accuracy or at least its sufficiency My concern boils down

to whether this covenant is a stand-alone duty that is breached or whether it is

merely an ldquoimpliedrdquo covenant that allows a judge or jury to add content to a

contractmdashfollowed by a question of whether there is a breach of contract with the

added material

The quote below is from Speedway SuperAmerica which was written by

Chief Justice Canady when he was on the 2DCA It is clearly designed to keep this

covenant narrow and not allow it to turn into an equitable remedy in disguise If

this doctrine only ldquofills gapsrdquo or creates reasonable standards for discretionary

decisions and I think that may be its only role then it is not really a separate

implied clause in the contract with its own remedies for breach of the covenant

Instead it allows someone to add language to fill the gap or create reasonable

standards Frankly whether that someone should be a judge a jury or a mixture

thereof is a little confusing to me

The standard instruction which is quoted below in its entirety states ldquo(Claimant) contends that (defendant) violated the duty to act in good faith and fairly under [a] specific part[s] of the contract To establish this claim (claimant) must prove all of the followingrdquo

SJI January 2020 Agenda Page 42

If I am right the instruction would be more along the lines of ldquoClaimants contends

that defendant breached the contract by violating terms of the contract that are not

express within the contract but are implied under the law by the duty to act in good

faithhellip

This may require some explanation as to whether the remedy is already in

the contract or is something added by implication

At the end of this memo mostly for an interesting contrast I cite a couple

cases from Montana That state has extensive case law and treats the doctrine as

both a contract breach and a tort That approach which is not Florida law seems

closer to our current jury instruction

I think it may be worthwhile to have a committee do a thorough research of

the law including national law to see if we need to adjust our instruction

We have stated that ldquo[t]he implied covenant of good faith exists in virtually all contractual relationshipsrdquo Sepe v City of Safety Harbor 761 So2d 1182 1184 (Fla 2d DCA 2000) see also County of Brevard v Miorelli Engg Inc 703 So2d 1049 1050 (Fla1997) (ldquo lsquo[E]very contract includes an implied covenant that the parties will perform in good faithrsquo rdquo (quoting ChampagnendashWebber Inc v City of Fort Lauderdale 519 So2d 696 697 (Fla 4th DCA 1988))) Restatement (Second) of Contracts sect 205 (1981) (ldquoEvery contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcementrdquo)

34 Despite broad characterizations of the implied covenant of good faith we have recognized that it ldquois a gap-filling default rulerdquo which comes into play ldquowhen a question is not resolved by the terms of the contract or


when one party has the power to make a discretionary decision without defined standardsrdquo Publix Super Markets Inc v Wilder Corp of Del 876 So2d 652 654 (Fla 2d DCA 2004) ldquo[T]he implied covenant of good faith and fair dealing is designed to protect the contracting parties reasonable expectationsrdquo Cox v CSX Intermodal Inc 732 So2d 1092 1097 (Fla 1st DCA 1999) ldquo[W]here the terms of the contract afford a party substantial discretion to promote that partys self-interest the duty to act in good faith nevertheless limits that partys ability to act capriciously to contravene the reasonable contractual expectations of the other partyrdquo Id at 1097ndash982

Speedway SuperAmerica LLC v Tropic Enterprises Inc 966 So2d 1 3 (FlaApp 2 Dist2007)

41624 BREACH OF IMPLIED COVENANT OF

GOOD FAITH AND FAIR DEALING

In the contract in this case there is an implied promise of good faith and fair dealing This means that neither party will do anything to unfairly interfere with the right of any other party to the contract to receive the contractrsquos benefits however the implied promise of good faith and fair dealing cannot create obligations that are inconsistent with the contractrsquos terms (Claimant) contends that (defendant) violated the duty to act in good faith and fairly under [a] specific part[s] of the contract To establish this claim (claimant) must prove all of the following

1 (Claimant) and (defendant) entered into a contract

2 (Claimant) did all or substantially all of the significant things that the contract required [him] [her] [it] to do [or that [he] [she] [it] was excused from having to do those things]

3 All conditions required for (defendantrsquos) performance had occurred


4 (Defendantrsquos) actions [or omissions] unfairly interfered with (claimantrsquos) receipt of the contractrsquos benefits

5 (Defendantrsquos) conduct did not comport with (claimantrsquos) reasonable contractual expectations under [a] specific part(s) of the contract and

6 (Claimant) was harmed by (defendantrsquos) conduct

NOTE ON USE FOR 41624

The question of whether a particular contract is one in which an implied covenant of good faith and fair dealing applies is a question for the trial court to answer in the first instance


1 The implied covenant of good faith and fair dealing exists in virtually all contractual relationships Sepe v City of Safety Harbor 761 So2d 1182 1184 (Fla 2d DCA 2000) RESTATEMENT (SECOND) OF CONTRACTS sect 205 (1981)

2 The purpose of the implied covenant of good faith is ldquoto protect the reasonable expectations of the contracting partiesrdquo Ins Concepts amp Design Inc v Healthplan Services Inc 785 So2d 1232 1234-35 (Fla 4th DCA 2001) See also Cox v CSX Intermodal Inc 732 So2d 1092 1097 (Fla 1st DCA 1999) (ldquo[T]he implied covenant of good faith and fair dealing is designed to protect the contracting partiesrsquo reasonable expectationsrdquo)

3 The implied covenant of good faith ldquois a gap filling default rulerdquo which comes into play ldquowhen a question is not resolved by the terms of the contract or when one party has the power to make a discretionary decision without defined standardsrdquo Speedway SuperAmerica LLC v Tropic Enterprises Inc 966 So2d 1 3 n2 (Fla 1st DCA 2007) see also Cox 732 So2d at 1097


4 ldquoBecause the implied covenant is not a stated contractual term to operate it attaches tothe performance of a specific or express contractual provisionrdquo Snow v Ruden McCloskySmith Schuster amp Russell PA 896 So2d 787 792 (Fla 2d DCA 2005)

5 The implied covenant of good faith cannot override an express contractual provisionSnow 896 So2d at 791-92 see also Ins Concepts 785 So2d at 1234

6 ldquoThe implied obligation of good faith cannot be used to vary the terms of an expresscontractrdquo City of Riviera Beach v Johnrsquos Towing 691 So2d 519 521 (Fla 4th DCA 1997) seealso Ins Concepts 785 So2d at 1234-35 (ldquoAllowing a claim for breach of the implied covenantof good faith and fair dealing lsquowhere no enforceable executory contractual obligationrsquo remainswould add an obligation to the contract that was not negotiated by the partiesrdquo) (citationsomitted)

7 Good faith means honesty in fact in the conduct of contractual relations Burger KingCorp v CR Weaver 169 F3d 1310 1315 (11th Cir 1999) (citing Harrison Land Dev Inc v Ramp H Holding Co 518 So2d 353 355 (Fla 4th DCA 1987)) see also RESTATEMENT(SECOND) OF CONTRACTS sect 205 cmt a (1981)

Montana law

Kinniburgh v Garrity 798 P2d 102 105 244 Mont 350 354 (Mont1990)

ldquoMoreover for a plaintiff to maintain a cause of action for breach of the implied covenant whether it is based in contract or based on the special relationship criteria giving rise to a tort he must first show breach of the ldquohonesty in factrdquo standardrdquo

Dunfee v Baskin-Robbins Inc 720 P2d 1148 1154 221 Mont 447 457 (Mont1986) (allows for emotional distress damages for breach of the duty of good faith)


Updated January 2020

COMMITTEE ROSTER Supreme Court of Florida

Committee on Standard Jury Instructions Contract and Business Cases

Per Administrative

Not yet assigned (Supreme Court Liaison)

Hon Paul Huey Chair Thirteenth Judicial Circuit 800 E Twiggs Street Room 527 ndash Edgecomb Courthouse Tampa FL 33602 Telephone 8132725414 E-Mail hueyplfljud13orgTerm Expiring 6302019

Mark A Boyle Sr Esq Vice ChairBoyle amp Leonard PA 2050 McGregor Boulevard Fort Myers FL 33901-3420 Telephone 2393371303 E-mail mboyleinsurance-counselcomTerm Expiring 6302020

Chris W Altenbernd Esq Banke Lopez Gassler PA 501 E Kennedy Blvd Ste 1700 Tampa FL 33602-5239 Telephone 8135748562 E-mail caltenberndbankerlopezcomTerm Expiring 6302021

R Lee Barrett EsqBarrett Chapman amp Ruta PAP O Box 3826Orlando FL 32802-3826Telephone 4078396227E-mail leebcrlawnetTerm Expiring 6302022

Richard Benrubi Esq Law Office of Richard M Benrubi PA 1401 Forum Way Floor 6 West Palm Beach FL 33401-2325 Telephone 5614782500 E-Mail rbenrubirosenthallevycomTerm Expiring 6302022

Order No AOSC17-91



Ronnie Bitman Esq Bitman OrsquoBrien amp Morat PLLC 255 Primera Blvd Ste 128 Lake Mary FL 32746 Telephone 407815-3111 E-mail rbitmanbitman-lawcom Term Expiring 6302020

Jeffrey L Burns Esq Anchors Smith amp Grimsley 909 Mar Walt Dr Ste 1014 Fort Walton Beach FL 32547-6757 Telephone 850863-4064 E-mail jlburnsasglegalcom Term Expiring 6302021

Hon Janet Croom Nineteenth Judicial Circuit 218 S 2nd Street Fort Pierce FL 34950-4300 Telephone 772-462-1460 E-mail croomjcircuit19org Term Expiring 6302021 Manuel Farach Esq McGlinchey Stafford PLLC 1 East Broward Boulevard Suite 1400 Fort Lauderdale FL 33301-1834 Telephone 9543562501 E-mail mfarachmcglincheycom Term Expiring 6302022 Ronald M Gache Esq Shapiro Fishman amp Gache LLP 2424 N Federal Highway Suite 360 Boca Raton FL 33431-7780 Telephone 5612875599 E-mail rgachelogscom Term Expiring 6302021

Hon Geoffrey Gentile Twentieth Judicial Circuit 1700 Monroe St Fort Myers FL 33901-3071 Telephone 239-533-2600 E-mail ggentilecacjis20org Term Expiring 6302021



Jerry M Gewirtz Esq City of Tampa 315 East Kennedy Boulevard Floor 5 Tampa FL 33602-5211 Telephone 8132748842 E-Mail jerrygewirtztampagovnet Term Expiring 6302020

Tracy R Gunn Esq Gunn Appellate Practice PA 401 E Jackson St Ste 3610 Tampa FL 33602-5233 Telephone 8132543183 E-Mail tgunngunnappealscom Term Expiring 6302021

Lee L Haas Esq Haas amp Castillo PA 19321-C US Hwy 19 North Suite 401 Arbor Shoreline Office Park Clearwater FL 33764-3142 Telephone 7275354544 E-mail leehaas-castillocom Term Expiring 6302020

James M McCann Jr Akerman LLP 777 S Flagler Dr Ste 1100 West Palm Beach FL 33401-6161 Telephone 561-653-5000 Email jimmccannakermancom Term Expiring 06302022

Hon Lisa Munyon Ninth Judicial Circuit 425 N Orange Avenue Suite 2035 Orlando FL 32801 Telephone 4078362470 E-Mail ctjulm1ocnjccorg Term Expiring 6302022

Mark A Nation Esq The Nation Law Firm 570 Crown Oak Centre Drive Longwood FL 32750-6187 Telephone 407-339-1104 E-Mail marknationlawcom Term Expiring 6302020



Mark Osherow Esq Osherow PLLC 2101 NW Corporate Blvd Suite 410 Boca Raton FL 33431-1811 Telephone 561-257-0880 (office) Telephone 561-789-1177 (mobile) E-mail markosherowpllccom Term Expiring 6302020

Mitchell O Palmer Esq Office of the County Attorney PO Box 1000 Bradenton FL 32406-1000 Telephone 941-745-3750 (office) Telephone 941-749-3089 (mobile) E-mail mitchellpalmermymanateeorg Term Expiring 6302021

Harry A Payton Esq Payton amp Associates LLC 2 S Biscayne Blvd Ste 2300 Miami FL 33131-1803 Telephone 305-372-3500 (office) Telephone 305-213-3500 (mobile) E-mail paytonpayton-lawcom Term Expiring 6302021

Adina L Pollan Esq Pollan Legal 301 W Bay Street Ste 1454 Jacksonville FL 32202-5184 Telephone 9044752187 E-Mail apollanpollanlegalcom Term Expiring 6302022 Scott R Rost Esq South Milhausen PA 1000 Legion Plaza Suite 1200 Orlando FL 32801-1005 Telephone 4075391638 E-mail srostsouthmilhausencom Term Expiring 6302022

Albert A Sanchez Jr Esq Sanchez Law PLLC 2055 Wood St Ste 220 Sarasoata FL 34237-7931 Telephone 941-366-0001(office) Telephone 941-724-1776(mobile) E-mail aasanchezlawgmailcom Term Expiring 6302021



Hon Donald Scaglione Fifth Judicial Circuit 20 N Main St Rm 444 Brooksville FL 34601-2893 Telephone352-754-4030(office) E-mail dscaglionecircuit5org Term Expiring 6302021 Stephanie Serafin Esq Kreusler-Walsh Compiani amp Vargas PA 501 South Flagler Drive Suite 503 West Palm Beach FL 33401-5913 Telephone 561-659-5455 E-mail sserafinkwvsappealscom Term Expiring 6302021

Martin B Sipple Esq Ausley amp McMullen PO Box 391 Tallahassee FL 32302-0391 Telephone 850224-9115 E-mail msippleausleycom Term Expiring 6302021

Donna G Solomon Esq Solomon Appeals Mediation amp Arbitration 901 South Federal Highway Suite 300 Ft Lauderdale FL 33316-1260 Telephone 5617629932 E-Mail donnasolomonappealscom Term Expiring 6302022

Kenneth G Turkel Esq Bajo Cuva Cohen and Turkel PA 100 N Tampa St Ste 1900 Tampa FL 33602-5853 Telephone 813-868-6163 E-Mail kturkelbajocuvacom Term Expiring 6302021 Honorable Gary L Wilkinson 501 W Adams St Ste 7236 Jacksonville FL 32202-468 Telephone 904-699-8706 Email gwilkinsoncojnet Term Expiring 06302022



Steele T Williams Esq Steele T Williams PA 1381 McAnsh Square Sarasota FL 34236-5620 Telephone 941-378-1800 E-Mail steeletwilliamscomcastnet Term Expiring 6302020 Committee Reporter Joseph Eagleton Esq Brannock amp Humphries 1111 West Cass Street Suite 200 Tampa FL 33606 Telephone 813-223-4300 E-Mail jeagletonbhappealscom Term Expiring 6302019

The Florida BarLiaison Mikalla Daivs Esq The Florida Bar 651 E Jefferson Street Tallahassee FL 32399-2300 Telephone 850-561-5663 E-mail mdavisfloridabarorg

Revised July 2019


SJImdashContracts and Business Active Subcommittee List

bull Subcommittee to review the draft model verdict form for instruction 41627 regarding undueinfluence to determine whether any changes are necessary and to put together a final proposalfor the full Committeersquos consideration

o Ronnie Bitmano Stephanie Serafino Ken Turkel

bull Subcommittee to review the draft model verdict form for instruction 41628 regarding fraud todetermine whether any changes are necessary and to put together a final proposal for the fullCommitteersquos consideration

o Harry Payton (chair)o Tracy Gunno Mark Osherow

bull Subcommittee to review the state of the law on restrictive covenants to determine whether aninstruction is needed and if so to draft a proposal

o Mark Osherowo Stephanie Serafino Scott Rost

bull Subcommittee to review the state of the law on tortious interference and the applicable Civilinstruction and to consider any necessary proposals for the full Committeersquos considerationincluding whether that instruction should be tweaked and whether it should be moved to theBusiness instructions

o Ken Turkel (chair)o Richard Benrubio Ronnie Bitmano Ron Gacheo Eric Lee

bull Subcommittee to review areas of overlap between the Civil and Business instructionsdetermine whether certain topics and instructions should be moved from Civil to Business andconsider whether some issues require separate instructions for commercial cases

o Ken Turkel (chair)o Judge Paul Hueyo Chris Altenberndo Mark Boyle

bull Subcommittee to review the independent tort doctrine to determine whether an instruction isneeded and if so to draft a proposal

o Judge Jeffrey Burns (chair)o Mark Boyleo Judge Janet Croomo Albert Sanchez


o Joshua Spector

bull Subcommittee to review the state of the law on trespass to determine whether an instruction is needed and if so to draft a proposal

o Chris Altenbernd o Jerry Gewirtz o Mitchell Palmer o Judge Geoffrey Gentile o

bull Subcommittee to review the state of the law on unilateral mistake in light of DePrince v Starboard to determine whether an instruction is needed and if so to draft a proposal along with a proposed verdict form

o Chris Altenbernd o Judge Geoffrey Gentile o Tracy Gunn o Mitchell Palmer

es for Submission in the next report of the SJI CB

bull Subcommittee to review the draft model verdict form for instruction 41630 regarding waiver to determine whether any changes are necessary and to put together a final proposal for the full Committeersquos consideration

o Mark Boyle o Judge Geoffrey Gentile o Steele Williams

bull Subcommittee to review the state of the law on FDUTPA to determine whether an instruction is

needed and if so to draft a proposal o Ronnie Bitman o Martin Sipple o Donna Solomon

bull Subcommittee anticipatory breach

o Harry Payton o Richard Benrubi o Judge Huey

bull Subcommittee to review the draft model verdict form for instruction 41631 regarding

novation to determine whether any changes are necessary and to put together a final proposal for the full Committeersquos consideration

o Lee Barrett o Scott Rost o Albert Sanchez o Judge Donald Scaglione

set subcommittees

Rul

Sun


bull Subcommittee to review the Florida Supreme Courtrsquos forthcoming opinion in case number SC18-867 when issued for any errors or necessary corrections

o Jerry Gewirtz o Scott Rost o Donna Solomon

bull Subcommittee for new members o Martin Sipple Chair o Judge Croom o Tracey Gunn o Jerry Gerwitz o Mark Boyle

bull Subcommittee to review the state of the law on unclean hands to determine whether an

instruction is needed and if so to draft a proposal o Lee Haas o Mitchell Palmer o Judge Donald Scaglione o Joshua Spector


January 2020 Agenda

A Subcommittee Reviewing Section 500

Subcommittee to review the various proposed 504 verdict forms suggest any necessary revisions consider the adoption of a 5045 form consider the addition of a damages line in the 5043 lost profits form and bring a consolidated proposal back to t

Materials p41

B 41628 (Model Form of Verdict for Affirmative DefensemdashFraud)

Subcommittee to review the draft model verdict form for instruction 41628 regarding fraud to determine whether any changes are necessary and to put together a final proposal for the full Committeersquos consideration (Payton Osherow Judge Huey and

Materials p41

Materials p41

D Subcommittee Tortious Interference

Subcommittee to review the state of the law on tortious interference and the applicable Civil instruction and to consider any necessary proposals for the full Committeersquos consideration including whether that instruction should be tweaked and whethe

E 41627 (Model Form of Verdict for Affirmative DefensemdashUndue Influence) Subcommittee to review the draft model verdict form for instruction 41627 regarding undue influence to determine whether any changes are necessary and to put together a final

F Subcommittee Restrictive Covenants

G Subcommittee Independent Tort Doctrine

Subcommittee to review the independent tort doctrine to determine whether an instruction is needed (Burns Boyle Croom Sanchez Spector)

Materials p41

SJI CB Meeting Minutes -- August 2019

Florida Supreme Court Verdict for Damages Form 504 5 (rev-7-22-19)

Florida Supreme Court Verdict for Damages Form 504 5(A) (2)

Florida Supreme Court Verdict for Damages Form 504 5(B)

RE_ Fraud 41628

Fraud 41628

Proposed charge affirmative defense of fraud

Proposed Verdit Form for Aff Def of Fraud

Jury Instruction 41626--Affirmative Defense--Unilateral Mistake of Fact

Jury Instruction 41626--Affirmative Defense--U

Standard instruction on good faith-fair dealing

ADP5D48tmp

Committee Reporter

ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

C Subcommittee Unilateral Mistake

Subcommittee to review the state of the law on unilateral mistake in light of DePrince v Starboard to determine whether an instruction is needed and if so to draft a proposal along with a proposed verdict form (Altenbernd Gentile Gunn Palmer)

Materials p39 D Subcommittee Tortious Interference Subcommittee to review the state of the law on tortious interference

and the applicable Civil instruction and to consider any necessary proposals for the full Committeersquos consideration including whether that instruction should be tweaked and whether it should be moved to the Business instructions (Turkel Huey Altenbernd Boyle)

E 41627 (Model Form of Verdict for Affirmative DefensemdashUndue

Influence) Subcommittee to review the draft model verdict form for instruction 41627 regarding undue influence to determine whether any changes are necessary and to put together a final proposal for the full Committeersquos consideration (Bitman Serafin Turkel)

F Subcommittee Restrictive Covenants Subcommittee to review the state of the law on restrictive covenants to determine whether an instruction is needed and if so to draft a p proposal (Osherow Serafin Rost) G Subcommittee Independent Tort Doctrine Subcommittee to review the independent tort doctrine to determine

whether an instruction is needed (Burns Boyle Croom Sanchez Spector)

H Subcommittee Trespass Subcommittee to review the state of the law on trespass to determine whether an instruction is needed and if so to draft a proposal (Altenbernd Gewirtz Palmer Gentile) I New Appointments and Reappoints to the Committee Members whose terms expires 63020 Mark Boyle Ronnie Bitman Jerry Gewirtz

SJI January 2020 Agenda


5 New Business


B Open Discussion

6 Announcements





8 Adjournment


1











rry M Gewirtz

ee L Haas






cott R Rost

lbert A Sanchez


tephanie Serafin NA

artin B Sipple

onna G Solomon

enneth G Turkel

teele T Williams

M

H

R

H

R

H

Je

L

H

M

M

M

H

S

A

H

S

M

D

K

S










2








future




proclamation


Duty





fiduciary duty









Influence





3




































4
















form the contract













the next meeting






5












forbearance






tended to agree
















form


6



































7


be concerned










and Boyle)




5043 Lost Profits




Sipple agreed








the amount






8


combined































9


















Osherow agreed








generally better








10








Management


























11


































12





professionalsrdquo





















change






13

























Property




sides of the coin





14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42


5 New Business


B Open Discussion

6 Announcements





8 Adjournment


1











rry M Gewirtz

ee L Haas






cott R Rost

lbert A Sanchez


tephanie Serafin NA

artin B Sipple

onna G Solomon

enneth G Turkel

teele T Williams

M

H

R

H

R

H

Je

L

H

M

M

M

H

S

A

H

S

M

D

K

S










2








future




proclamation


Duty





fiduciary duty









Influence





3




































4
















form the contract













the next meeting






5












forbearance






tended to agree
















form


6



































7


be concerned










and Boyle)




5043 Lost Profits




Sipple agreed








the amount






8


combined































9


















Osherow agreed








generally better








10








Management


























11


































12





professionalsrdquo





















change






13

























Property




sides of the coin





14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

1











rry M Gewirtz

ee L Haas






cott R Rost

lbert A Sanchez


tephanie Serafin NA

artin B Sipple

onna G Solomon

enneth G Turkel

teele T Williams

M

H

R

H

R

H

Je

L

H

M

M

M

H

S

A

H

S

M

D

K

S










2








future




proclamation


Duty





fiduciary duty









Influence





3




































4
















form the contract













the next meeting






5












forbearance






tended to agree
















form


6



































7


be concerned










and Boyle)




5043 Lost Profits




Sipple agreed








the amount






8


combined































9


















Osherow agreed








generally better








10








Management


























11


































12





professionalsrdquo





















change






13

























Property




sides of the coin





14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

2








future




proclamation


Duty





fiduciary duty









Influence





3




































4
















form the contract













the next meeting






5












forbearance






tended to agree
















form


6



































7


be concerned










and Boyle)




5043 Lost Profits




Sipple agreed








the amount






8


combined































9


















Osherow agreed








generally better








10








Management


























11


































12





professionalsrdquo





















change






13

























Property




sides of the coin





14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

3




































4
















form the contract













the next meeting






5












forbearance






tended to agree
















form


6



































7


be concerned










and Boyle)




5043 Lost Profits




Sipple agreed








the amount






8


combined































9


















Osherow agreed








generally better








10








Management


























11


































12





professionalsrdquo





















change






13

























Property




sides of the coin





14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

4
















form the contract













the next meeting






5












forbearance






tended to agree
















form


6



































7


be concerned










and Boyle)




5043 Lost Profits




Sipple agreed








the amount






8


combined































9


















Osherow agreed








generally better








10








Management


























11


































12





professionalsrdquo





















change






13

























Property




sides of the coin





14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

5












forbearance






tended to agree
















form


6



































7


be concerned










and Boyle)




5043 Lost Profits




Sipple agreed








the amount






8


combined































9


















Osherow agreed








generally better








10








Management


























11


































12





professionalsrdquo





















change






13

























Property




sides of the coin





14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

6



































7


be concerned










and Boyle)




5043 Lost Profits




Sipple agreed








the amount






8


combined































9


















Osherow agreed








generally better








10








Management


























11


































12





professionalsrdquo





















change






13

























Property




sides of the coin





14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

7


be concerned










and Boyle)




5043 Lost Profits




Sipple agreed








the amount






8


combined































9


















Osherow agreed








generally better








10








Management


























11


































12





professionalsrdquo





















change






13

























Property




sides of the coin





14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

8


combined































9


















Osherow agreed








generally better








10








Management


























11


































12





professionalsrdquo





















change






13

























Property




sides of the coin





14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

9


















Osherow agreed








generally better








10








Management


























11


































12





professionalsrdquo





















change






13

























Property




sides of the coin





14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

10








Management


























11


































12





professionalsrdquo





















change






13

























Property




sides of the coin





14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

11


































12





professionalsrdquo





















change






13

























Property




sides of the coin





14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

12





professionalsrdquo





















change






13

























Property




sides of the coin





14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

13

























Property




sides of the coin





14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

14













mitigation






later
















15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

15



















issue














16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

16


Boyle)




instructions




Sanchez Spector)










discussion














17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

17


















this issue





moving forward


Palmer)










18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

18


















purchase more














same thing


19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

19
































request


20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

20







for consideration










7 Adjournment





VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42



VERDICT







contract

$________________________





YES___________ NO___________





contract

$________________________


4




contract

$________________________






$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42





$________________________


NOTES ON USE








VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42




VERDICT



contract

$________________________

$________________________

NOTES ON USE








VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42




VERDICT



YES___________ NO____________





$________________________

NOTES ON USE











































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42







































H a r r y a y t o n



a P B C S
































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42































v Yusem 44 So3d 102 105 (Fla 2010)



VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42


VERDICT


YES NO



YES NO



YES NO



YES NO




rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42


rep


YES NO


4l

t-


YES NO



YES NO



appropriate 7


NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

NOTES ON USE




verdict form









Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42








Old Business






14








and




























and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42







and




























and



[or]























January 13 2020






added material











SJI January 2020 Agenda 




faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42




















and



[or]























January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42




January 13 2020






added material















faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42




faithhellip



































Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42
























Montana law















































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42











































































Rul

Sun











Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42










Materials p41



Materials p41

Materials p41







Materials p41





RE_ Fraud 41628

Fraud 41628






ADP5D48tmp


ADP291Ftmp



Materials p24



Materials p28

Materials p39







Materials p42

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