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SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS — CONTRACT AND BUSINESS CASES Meeting Agenda Thursday, February 15, 2018; 1:30 pm–5:30 pm Friday, February 16, 2018; 9:00 am–12:30 pm Orange County Courthouse Room 365 425 N. Orange Avenue, Orlando The call-in number is 1-888-376-5050 Conference code: 965 874 1256# 1. Welcome and Introductions 2. Approval of November 2017 Minutes ...................................................... p. 2 3. Fiduciary Duty (Published in conjunction with Standard Jury Instructions—Civil Committee) Status: Comments were received until February 1, 2018. The comments received were from members of this committee to SJI—Civil and they will be addressed at the next Civil meeting on March 1, 2018. 4. Subcommittee Reports Verdict Forms for Discussion A. Form 416.39 Account Stated of Contract Claim Clean ..................................................................................... p. 14 Redline .................................................................................. p. 17 B. Form 416.45 Legal Cause ........................................................... p. 20 C. Form 504.9 Mitigation of Damages ........................................... p. 22 5. Old Business The previously approved instructions have not yet been filed merely due to Krys’ schedule. She hopes to have this complete, approved, and filed by March 31, 2018. These may be published by the Court for comment; if so, those comments will be shared. 6. New Business Appointment of Membership Subcommittee 7. Upcoming Meeting 8. Adjournment SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS FOR CONTRACT AND BUSINESS CASES Minutes for Committee meeting held on November 2-3, 2017 West Palm Beach, FL November 2 meeting: Chair Paul Huey, Vice Chair Mark Boyle, Richard Barrett, Manny Farach, Lee Haas, Ron Gaché, Eric Lee (by phone), Josh Spector, Judge Munyon, Jerry Gewitrz, Stephen Padula, Martin Sipple (by phone), Adina Pollan, Teresa Verges, Mark Osherow, Secretary Stephanie Serafin, Bar Liaison Krys Godwin November 3 meeting: Chair Paul Huey, Vice Chair Mark Boyle, Richard Barrett, Manny Farach (by phone), Lee Haas, Ron Gaché, Josh Boyle, Josh Spector (by phone), Judge Munyon, Jerry Gewitrz (by phone), Stephen Padula, Adina Pollan, Scott Rost, Donna Solomon, Teresa Verges (by phone), Mark Osherow, Secretary Stephanie Serafin, Bar Liaison Krys Godwin Welcome and Introductions The Chair called the meeting to order at 1:38 p.m. and introduced the new members. Approval of June 2017 Minutes The Chair called for approval of the minutes from the June 2017 meeting. Lee Haas made one change to the minutes, to note that he was present for both days of the meeting. Gewirtz moved to approve the minutes; Haas seconded. The minutes were approved by proclamation. Fiduciary Duty Instructions (451.1-451.13) o The Chair reintroduced the fiduciary duty instructions and gave the history of this Committee’s work on the instructions. o Haas reported on the history of the work between this Committee and SJI Civil. Subcommittees were formed on each committee. SJI Civil wanted to make the instruction comprehensive, similar to the other civil instructions. SJI Civil agreed to take out a few items that Haas believed were causing confusion. That committee approved the fiduciary duty instructions last week at their meeting. o Brian Gowdy and Heather Telfer joined the meeting by phone to address SJI Civil’s work on the fiduciary duty instructions. Telfer explained that the instructions were numbered to make clear they are joint instructions 1 (451.XX). Gowdy noted that 451.4-451.6 have been approved by both committees. The other instructions in this series are the set that SJI civil includes with all torts. o A member asked if there is something missing from these instructions to distinguish breach of fiduciary duty from fraud. Another member noted that the instruction contains the elements of fiduciary duty, which are legally correct. o Haas explained that the next step is for this Committee to approve the instructions that SJI Civil approved at their last meeting so that both committees can submit the instructions to the Florida Supreme Court. Haas recommended approving the instructions to promote uniformity. o Telfer commented that, if this Committee approves the instructions, the two committees would file a joint report and joint publication notice. o Godwin noted that the two committees would need to coordinate on any changes to these instructions in the future. o Gowdy explained that SJI Civil left out the vicarious liability instructions because the subcommittee was not comfortable with the case law, which says that breach of a fiduciary duty is a hybrid of intentional tort and negligence. o The Committee discussed the reason for designating the vicarious liability instruction a preliminary issue. The Committee also discussed use of vicarious liability instruction in a fiduciary duty case. o Haas moved to approve the fiduciary duty instructions that SJI Civil approved at its recent meeting; Gache seconded. The motion carried. Subcommittee Reports Verdict Forms for Discussion: the Chair gave the history of the Committee’s work on verdict forms to go with each instruction. Several forms were approved at the last meeting and went out for comment. The Committee received no comments. Form 416.9—Formation of Contract – Revocation of Offer o The Chair explained that this form was tabled at the last meeting after discussion. o Haas and Rost conducted additional research after the last meeting. Haas found only 2-3 cases on the issue. Spector also researched the issue and could not find any definitive cases. He believes this is an affirmative defense where the defendant has to introduce extrinsic facts to show there was a revocation. Other Committee members expressed agreement. 2 o The Committee further discussed whether revocation is part of the plaintiff’s claim or an affirmative defense. One member pointed out that instruction 416.9 requires the claimant to prove that the offer was not withdrawn. Another member commented that the instruction seems to encompass the claim, defense and reply. o A member mentioned a 1929 Florida Supreme Court case that says the plaintiff has to set out ultimate facts that form the basis for the cause of action. He argued the plaintiff does not have to anticipate affirmative defenses. If the plaintiff is not required to plead something (in this instance, revocation), he or she should not have to prove it. Another member agreed and said one would have to add an element to breach of contract to make revocation part of the plaintiff’s case. o The Chair noted the instruction includes two concepts: failure to withdraw an offer and acceptance before withdrawal. The Committee discussed these two concepts. o A member asked whether any of the cited sources have been implicitly overruled because of technology. The Chair stated the general rule is the offeree can accept using the same method by which the offer was made. o The Chair asked whether any of the authorities cited in the instruction state whether revocation is an affirmative defense. The Chair also noted that the case law does not include revocation as an element of breach of contract. o The Committee engaged in further discussion of whether revocation is an affirmative defense. o The Vice-Chair located a case dealing with dedication of land to a municipality, Kirkland v. City of Tampa, 78 So. 17 (Fla. 1918). The Florida Supreme Court held the burden to prove revocation was on the party claiming revocation. This is not a contract case. A member suggested the answer may depend on whether the offeror or offeree is making the claim of revocation. o The Chair tabled the discussion until the next day of the meeting. Form 416.12—Substantial Performance of Contract o The Chair called for discussion. o Padula moved to approve the form; Gewirtz seconded. The motion carried. Form 416.13—Modification of Term(s) of Contract 3 o A member suggested changing party identifications so they can refer to either party because modification can be raised by a claimant or defendant. Another member noted the corresponding instruction currently uses “claimant.” This may cause confusion. A member suggested a note on use to address this issue. o The Committee made the following changes to the form: . Change first sentence to read: “Did (Claimant) prove that the parties agreed to a modification of the contract?” . In the first sentence in the instructive language, change “your verdict is for (defendant)” to “your verdict is against (claimant).” o A member commented there could be other questions for the jury to answer after this form. The Committee discussed the history of its changes to the instructive language in the verdict forms (see June 2017 agenda, p. 103). o Spector moved to approve the instruction with the noted changes; Pollan seconded. The motion carried. Form 416.14 Interpretation—Disputed Term(s) of Contract o The Chair stated this is a placeholder for a potential verdict form in the future. o The Committee decided to delete “verdict” from all of the placeholder forms. Forms 416.15 through 416.17 o The Chair called for a vote on this group of verdict forms, which are placeholders. Spector moved to approve; Verges seconded. The motion carried. o The motion was amended to include 416.14. The amended motion carried. Form 416.18 (not in agenda) o Haas moved to approve a placeholder; Padula seconded. The motion carried. Form 416.19—Interpretation of Contract—Reasonable Time o A member asked about the language in the forms that says to sign and date the verdict from. o The Committee looked at form 416.2 to see what language it decided to use in that form. A member noted there is inconsistency in the language used in the forms already approved. 4 o A member stated form 416.12 has language that needs to be modified. o A member noted this is another issue that could be raised by a claimant or a defendant.

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