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In re Std. Jury Instructions-Contract & Bus. Cases

Supreme Court of Florida

June 6, 2013, Decided

No. SC12-1931

Opinion

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116 So. 3d 284 ; 2013 Fla. LEXIS 1925 ; 2013 WL 2435441

IN RE: STANDARD JURY INSTRUCTIONS—CONTRACT AND BUSINESS CASES

Subsequent History: Related proceeding at In re: Std. Jury Instructions in Civ., Crim., Contract, & Bus. Cases-Jurors' use of Elec. Devices, 152 So. 3d 529, 2014 Fla. LEXIS 3547 (Fla., Dec. 4, 2014)

Related proceeding at In re Std. Jury Instructions in Civ. Cases & Std. Jury Instructions in Contract & Bus. Cases - Joint Report No. 18-01, 2018 Fla. LEXIS 2012 (Fla., Oct. 18, 2018)

Related proceeding at In re: Std. Jury Instructions in Contract & Bus. Cases - 2018 Report, 260 So. 3d 87, 2018 Fla. LEXIS 2388 (Fla., Dec. 6, 2018)

Related proceeding at In re Std. Jury Instructions in Civil Cases, 2019 Fla. LEXIS 1513 (Fla., Aug. 29, 2019)

Counsel:  [1] Honorable Jonathan D. Gerber, Committee Chair, and Manuel Farach, Committee Vice-Chair, West Palm Beach, Florida; and Brian F. Spector, Committee Vice-Chair, Miami, Florida, for Petitioner.

Judges: LEWIS, J. POLSTON, C.J., and PARIENTE, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

Opinion by: LEWIS

 [284]  Original Proceeding - Supreme Court Committee on Standard Jury Instructions — Contract and Business Cases

 [285]  LEWIS, J.

This matter is before the Court upon the report, recommendation and proposal of the Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases and a printed book of instructions prepared by the Committee for use when appropriate in civil cases. We have jurisdiction. See art. V, § 2(a), Fla. Const. This Court generally approves the theory and technique of instructing juries with regard to the applicable law as recommended by the Committee and embodied in the proposed instructions when applicable. Accordingly, this Court authorizes and directs the publication and use of these instructions, but without prejudice to the rights of any litigant objecting to the use of any of these approved forms.

In 1962, this Court established the Supreme Court Committee on Standard Jury Instructions  [2] as a committee of this Court to study and develop a program for standard jury instructions. By 1964, this Committee had determined that for the initial effort, the work and plan should be limited and directed to the preparation and publication of standard instructions for use in the trial of only negligence-type cases. In January 1967, this Committee had completed all work except the final editorial work on Florida Standard Jury Instructions. On April 19, 1967, this Court entered its final approval and authorized the publication of those instructions. The Supreme Court Committee on Standard Jury Instructions continues in existence and from time to time files new proposed instructions and amendments to instructions.

The lawyers and judges in Florida have found the existing Standard Jury Instructions, although limited to certain case types, to be beneficial to the administration of justice. With this predicate, since at least 1999, the Committee on Standard Jury Instructions has from time to time explored the possibility of expanding the work of the group to include instructions for other types of cases. As of July 2006, the existing committee had been unable to move forward and had terminated  [3] all efforts to proceed in that direction.

On September 15, 2006, then Chief Justice R. Fred Lewis entered Administrative Order AOSC6-47 which created the Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases (Committee). The Committee was established because "[t]here is a need for an additional standing committee to address standard jury instructions in contract and business litigation . . . ." In re Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases, AOSC06-47, at 2 (Sept. 15, 2006). The Committee was charged with performing the following tasks:

1. Organize a committee structure for perpetual operation to include leadership, rotation of membership, selection of members, an operational plan for submission of proposed instructions to the Florida Supreme Court for approval, and any other item necessary for the just and proper operations of the Committee.

2. Study and examine Florida law with regard to the principles of contract law and principles of law involved in business litigation that could properly be placed in uniform standardized jury instruction form. Based on this study and examination, develop, prepare, and propose to  [4] the Florida Supreme Court for approval uniform standard jury instructions for use in contract and business litigation in Florida. The Committee shall develop, prepare, and propose uniform standard jury instructions to include  [286]  both the jury process and the law to be applied in the decision process.

3. The Committee is authorized to coordinate and liaison with any other group, jury instruction or otherwise, as may be necessary and proper to accomplish the work required. The Committee is also authorized to seek expanded authority from the Florida Supreme Court as may be necessary to accomplish its mission.

4. The Committee shall have perpetual existence and shall meet at regular intervals to continue its review of the law and any existing standard jury instructions and supervise the proper maintenance and amendments of the jury instructions approved for use in Florida to conform with current applicable law.

5. Coordinate and participate, as necessary, in the process of printing and publication of the approved standard jury instructions.

6. The Committee shall have the goal of submitting a preliminary complete set of standard jury instructions for approval by September 1, 2007, or earlier  [5] as the work proceeds, and thereafter continue work to expand upon and refine Florida standard jury instructions in contract and business litigation.

Id. at 2-3. Judge Thomas B. Smith, then Circuit Court Judge of the Ninth Judicial Circuit was appointed to serve as Chair of the Committee. The Committee was composed of trial and appellate attorneys throughout the State of Florida, judges of the various circuit and district courts of appeal, and individuals with specific expertise and experience in this subject.

After six years of dedicated and tireless efforts, on September 11, 2012, this Contract and Business group filed its report with the Court proposing a complete, stand-alone set of jury instructions for contract and business cases. The book of instructions filed by the Committee is Appendix A. The Committee explained that it surveyed  [6] other states that had previously drafted standard jury instructions in contract and business cases. The goal was to identify a state possessing instructions which could serve as a form template for drafting a similar set of instructions, but all based on Florida law. This group ultimately concluded that California possessed a form (not substance) to follow, and received permission from the Judicial Council of California to use its instructions as a model form only for drafting a set of instructions for use in Florida based on substantive Florida law. The Committee further explained that it proceeded with its work as follows:

The committee divided into six subcommittees, researched and drafted proposed instructions which followed Florida law. Upon completion of the subcommittees' work, the full committee met to review and revise each proposed instruction for accuracy and conformity with Florida law. To improve juror understanding, the committee has used 'plain English' terminology wherever possible without altering the instructions' substantive meaning.

In addition, this group received permission from the Florida Supreme Court Committee on Standard Jury Instructions in Civil  [287]  Cases to  [7] duplicate the "How to Use This Book" section as well as Sections 100, 200, 300, 600, 700, and 800 for use in the Contract and Business Cases book. Accordingly, these business and contract-specific instructions are limited to Sections 400 and 500 of the proposed instructions. The Committee published its proposals for comment in The Florida Bar News on July 1, 2011, December 15, 2011, and April 1, 2012. The Committee received two comments, each directed to a proposed instruction on the affirmative defense of promissory estoppel. Based upon the comments, the Committee withheld that proposed instruction for further study. The Committee unanimously recommended that the Court authorize for publication and use the instructions as proposed.

This Court has always recognized that the initial determination of the substantive law applicable in all cases must be made by the trial judge and it would be inappropriate for this Court, at this time, and without a case or controversy  [8] before us, to adjudicate all legal principles embodied in these recommended instructions as correctly setting forth the substantive law applicable in any particular case. An approval of jury instruction forms by this Court does not relieve a trial judge of the responsibility under Florida law to properly and correctly instruct the jury in each case as it arises. This approval is not intended nor should it be construed as an intrusion into that responsibility of the trial judges. This Court is confident that these forms of instructions, as recommended by the Committee, state as accurately and correctly as a group of experienced lawyers and judges could state the substantive law of Florida in language understandable by jurors.

After full consideration, we authorize, approve and direct that the Standard Jury Instructions—Contract and Business Cases be published and distributed for use as applicable in Florida. The instructions under Sections 100, 300, and 600 are also authorized and approved. As we further discuss, we authorize and approve the instructions in Sections 200, 700, and 800 with minor modifications.

First, we modify instruction 202.2 (Explanation of the Trial Procedure) to construct  [9] the instruction consistent with the corresponding instruction in other civil cases. Under "Objections," the instruction is modified to include the phrase "you should disregard the question and" as follows: "If I say that an objection is 'sustained,' that means you should disregard the question and the witness may not answer the question."

Next, we modify Section 700—Closing Instructions, to delete the following language: "After you have decided what the facts are, you may find that some instructions do not apply. In that case, follow the instructions that do apply and use them together with the facts to reach your verdict." This language is contrary to the original intent of the Supreme Court Committee on Standard Jury Instructions in Civil Cases, as expressed by that Committee in In Re: Standard Jury Instructions in Civil Cases—Report No. 12-02, Case No. SC12-1818, 2013 Fla. LEXIS 1941 (Fla. May 23, 2013).

Finally, we modify the Notes on Use to instruction 801.2 (Read-Back of Testimony) in two ways. First, the modification reflects the Court's decision in Johnson v. State, 53 So. 3d 1003, 1011 (Fla. 2010), holding that, when preserved, it is per se reversible error for a trial judge to inform  [288]  the jury that  [10] they are prohibited from requesting a read-back of testimony. Accordingly, the Notes on Use to instruction 801.2 (Read-Back of Testimony) are modified to include the following note:

1. In civil cases, the decision to allow read-back of testimony lies within the sound discretion of the trial court. Broward Cnty. Sch. Bd. v. Ruiz, 493 So. 2d 474, 479-80 (Fla. 4th DCA 1986). However, the trial court must not tell jurors that they are prohibited from requesting a read-back of testimony. Johnson v. State, 53 So. 3d 1003 (Fla. 2010).

Second, we modify the Notes on Use to reflect that testimony read back to the jury must be read in open court, that transcripts or tapes of testimony must not be sent to the jury room, and that these matters are not discretionary.

Accordingly, we hereby authorize and direct the publication of the Standard Jury Instructions—Contract and Business Cases for publication and use as set forth in the appendix to this opinion. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization does not foreclose either requesting additional or alternative instructions or contesting  [11] the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix, fully engrossed, shall be effective when this opinion becomes final.

We wish to acknowledge the diligent hard work and thoughtful consideration of the Committee and its leadership in bringing the recommendations of instructions to be used in contract and business cases to the Court. We also extend our great appreciation to the Judicial Council of California for permitting Florida to follow the pattern used in California and entering into the licensing agreement which authorized use of that form.

It is ordered by the Court that:

(1) The Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases and The Florida Bar are authorized and directed to forthwith publish and distribute the instructions attached as exhibit A as a self-contained, free-standing publication. These Standard Jury Instructions shall also be placed on this Court's website.

(2)  [12] All references to the Florida Standard Jury Instructions and Standard Jury Instructions as set forth in Rule 1.470(b), Florida Rules of Civil Procedure, shall also include these Standard Jury Instructions—Contract and Business Cases.

(3) The Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases is continued as an independent working committee of this Court pursuant to Administrative Order AOSC06-47 for the purpose of fulfilling the directives in that Administrative Order and continuously reviewing these instructions for additions, correction of any errors or inaccuracies, and recommending to this Court amendments and revisions as experience may demonstrate to be necessary or beneficial and any new or additional instructions.

(4) In accordance with the Administrative Order which established this Committee, the members of the Bench and Bar who shall constitute the continuing Committee shall be appointed or reappointed by the Court pursuant to such  [289]  Administrative Order and serve without compensation.

It is so ordered.

POLSTON, C.J., and PARIENTE, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

EXHIBIT A

FLORIDA STANDARD JURY INSTRUCTIONS—CONTRACT AND BUSINESS CASES

SUPREME  [13] COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS—CONTRACT AND BUSINESS CASES

ACKNOWLEDGMENTS

The Supreme Court of Florida is grateful for the cooperation, assistance, and contributions that the following judges and attorneys extended during the development of these standard jury instructions in contract and business cases.

The Honorable R. Fred Lewis

Chief Justice and Founder of this Supreme Court Committee on Standard Jury

Instructions—Contract and Business Cases

The Honorable Thomas B. Smith, Chair

Magistrate Judge, U.S. District Court for the Middle District of Florida

The Honorable Brian D. Lambert

Circuit Court Judge, Fifth Judicial Circuit

Mr. Robert E. Austin, Jr.

Attorney at Law, Leesburg

Mr. Richard Lee Barrett

Attorney at Law, Orlando

Mr. Mitchell W. Berger

Attorney at Law, Ft. Lauderdale

Mr. Bruce J. Berman

Attorney at Law, Miami

Mr. Mark A. Boyle, Sr.

Attorney at Law, Fort Myers

Professor Cynthia Bulan

Nova Southeastern University, Ft. Lauderdale

The Honorable Charles T. Canady

Justice, Supreme Court of Florida

Mr. G. Donovan Conwell, Jr.

Attorney at Law, Tampa

The Honorable Angel T. Cortinas

Appellate Judge, Third District Court of Appeal

The Honorable Dorian K. Damoorgian

Appellate Judge, Fourth District  [14] Court of Appeal

Mr. John A Devault, III

Attorney at Law, Jacksonville

Mr. Thomas S. Edwards, Jr.

Attorney at Law, Jacksonville

Mr. Manuel Farach

Attorney at Law, West Palm Beach

The Honorable Gary M. Farmer

Appellate Judge, Fourth District Court of Appeal

Mr. Roy E. Fitzgerald, III

Attorney at Law, West Palm Beach

Mr. Ron Gache'

Attorney at Law, West Palm Beach

The Honorable Jonathan D. Gerber

Appellate Judge, Fourth District Court of Appeal

Ms. Barbara Green

Attorney at Law, Coral Gables

 [290]  Mr. Lee L. Haas

Attorney at Law, Clearwater

Mr. Michael J. Higer

Attorney at Law, Aventura

Mr. Benjamin H. Hill, III

Attorney at Law, Tampa

Mr. James M. Kaplan

Attorney at Law, Miami

Mr. Jonathan C. Koch

Attorney at Law, Tampa

Ms. Katherine C. Lake

Attorney at Law, Tampa

Mr. Eric Lee

Attorney at Law, Boca Raton

Mr. Kurt Lee

Attorney at Law, Pensacola

The Honorable Brian D. Lambert

Circuit Judge, Fifth Judicial Circuit

Ms. Christine Edwards Lamia

Attorney at Law, Tallahassee

Ms. Maxine M. Long

Attorney at Law, Miami

The Honorable Bernard Nachman

Circuit Judge, Fourth Judicial Circuit

Mr. Robert M. Norway

Attorney at Law, Orlando

Mr. Michael S. Olin

Attorney at Law, Miami

Mr. Eduardo Palmer

Attorney at Law, Coral Gables

Mr. Gera Peoples

Attorney  [15] at Law, Fort Lauderdale

Ms. Allison Perez

Attorney at Law, Orlando

Mr. Steven R. Reininger

Attorney at Law, Coral Gables

Mr. T. Tucker Ronzetti

Attorney at Law, Coral Gables

Mr. Gary Rosen

Attorney at Law, Fort Lauderdale

Mr. E. Lanny Russell

Attorney at Law, Jacksonville

The Honorable Meenu Sasser

Circuit Judge, Fifteenth Judicial Circuit

Mr. Paul Silverberg

Attorney at Law, Westin

Mr. Brian F. Spector

Attorney at Law, Miami

Professor Manuel A. Utset, Jr.

Florida State University College of Law, Tallahassee

The Honorable William A. Van Nortwick

Appellate Judge, First District Court of Appeal

Mr. Louis Vocelle, Jr.

Attorney at Law, Vero Beach

Mr. Mark M. Wall

Attorney at Law, Tampa

The Honorable Waddell Arlie Wallace, III

Circuit Judge, Fourth Judicial Circuit

Ms. Jane Kreusler-Walsh

Attorney at Law, West Palm Beach

APPENDIX

SECTION 100 — OATHS

101.1 OATH OF JURORS BEFORE VOIR DIRE

Do you solemnly swear or affirm that you will answer truthfully all questions asked of you as prospective jurors [so help you God]?

101.2 OATH OF JUROR AFTER VOIR DIRE

Do you solemnly swear or affirm that you will well and truly try this case between the [plaintiff(s)] [petitioner(s)] and [defendant(s)] [respondent(s)], and a true verdict  [16] render according to the law and evidence [so help you God]?

101.3 OATH OF A WITNESS

Do you solemnly swear or affirm that the evidence you are about to give will  [291]  be the truth, the whole truth, and nothing but the truth [so help you God]?

101.4 OATH OF AN INTERPRETER

Do you solemnly swear or affirm that you will make a true interpretation to the witness of all questions or statements made to [him] [her] in a language which that person understands, and a true interpretation of the witness' statements into the English language [so help you God]?

SECTION 200 — PRELIMINARY INSTRUCTIONS

QUALIFICATIONS INSTRUCTION

Many of you have cell phones, computers, and other electronic devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use any device to search the Internet or to find out anything related to any cases in the courthouse.

Between now and when you have been discharged from jury duty by the judge, you must not provide or receive any information about your jury service to anyone, including friends, co-workers, and family members. You may tell those who need to  [17] know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you must not give anyone any information about the case itself or the people involved in the case. You must also warn people not to try to say anything to you or write to you about your jury service or the case. This includes face-to-face, phone or computer communications.

In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.

After you are called to the courtroom, the judge will give you specific instructions about these matters. A judge will tell you when you are released from this instruction. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution  [18] of every case.

NOTE ON USE

This instruction should be given in addition to and at the conclusion of the instructions normally given to the prospective jurors. The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops.

A. DURING JURY SELECTION

201.1 DESCRIPTION OF THE CASE

(Before Voir Dire)

Welcome. [I] [The clerk] will now administer your oath.

Now that you have been sworn, I'd like to give you an idea about what we are here to do.

This is a civil trial. A civil trial is different from a criminal case, where a  [292]  defendant is charged by the state prosecutor with committing a crime. The subject of a civil trial is a disagreement between people or companies [or others, as appropriate], where the claims of one or more of these parties have been brought to court to be resolved. It is called "a trial of a lawsuit."

This is a case about (insert brief description of claim(s) and defense(s) brought to trial in this case).

The principal witnesses who will testify in this case are (list witnesses).

201.2 INTRODUCTION OF PARTICIPANTS AND THEIR ROLES

Who are the people  [19] here and what do they do?

Judge/Court: I am the Judge. You may hear people occasionally refer to me as "The Court." That is the formal name for my role. My job is to maintain order and decide how to apply the rules of the law to the trial. I will also explain various rules to you that you will need to know in order to do your job as the jury. It is my job to remain neutral on the issues of this lawsuit.

Attorneys: The attorneys to whom I will introduce you have the job of representing their clients. That is, they speak for their client here at the trial. They have taken oaths as attorneys to do their best and to follow the rules for their profession.

Plaintiff's Counsel: The attorney on this side of the courtroom, (introduce by name), represents (client name) and is the person who filed the lawsuit here at the courthouse. [His] [Her] job is to present [his] [her] client's side of things to you. [He] [She] and [his] [her] client will be referred to most of the time as "the plaintiff."

Defendant's Counsel: The attorney on this side of the courtroom, (introduce by name), represents (client name), the one who has been sued. [His] [Her] job is to present [his] [her] client's side of things  [20] to you. [He] [She] and [his] [her] client will usually be referred to here as "the defendant."

Court Clerk: This person sitting in front of me, (name), is the court clerk. [He] [She] is here to assist me with some of the mechanics of the trial process, including the numbering and collection of the exhibits that are introduced in the course of the trial.

Bailiff: The person over there, (name), is the bailiff. [His] [Her] job is to maintain order and security in the courtroom. The bailiff is also my representative to the jury. Anything you need or any problems that come up for you during the course of the trial should be brought to [him] [her]. However, the bailiff cannot answer any of your questions about the case. Only I can do that.

Jury: Last, but not least, is the jury, which we will begin to select in a few moments from among all of you. The jury's job will be to decide what the facts are and what the facts mean. Jurors should be as neutral as possible at this point and have no fixed opinion  [21] about the lawsuit.

In order to have a fair and lawful trial, there are rules that all jurors must follow. A basic rule is that jurors must decide the case only on the evidence  [293]  presented in the courtroom. You must not communicate with anyone, including friends and family members, about this case, the people and places involved, or your jury service. You must not disclose your thoughts about this case or ask for advice on how to decide this case.

I want to stress that this rule means you must not use electronic devices or computers to communicate about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages to or from anyone about this case or your jury service.

You must not do any research or look up words, names, [maps], or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home,  [22] or anywhere else.

All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution to this case. Unlike questions that you may be allowed to ask in court, which will be answered in court in the presence of the judge and the parties, if you investigate, research or make inquiries on your own outside of the courtroom, the trial judge has no way to assure they are proper and relevant to the case. The parties likewise have no opportunity to dispute the accuracy of what you find or to provide rebuttal evidence to it. That is contrary to our judicial system, which assures every party the right to ask questions about and rebut the evidence being considered against it and to present argument with respect to that evidence. Non-court inquiries and investigations unfairly and improperly prevent the parties from having that opportunity our judicial system promises. If you become aware of any violation of these instructions or any other instruction I give in this case, you must tell me by giving a note to the bailiff.

NOTE ON USE FOR 201.2

The portion of this instruction dealing with communication with others and outside research may need to be modified to include  [23] other specified means of communication or research as technology develops.

201.3 EXPLANATION OF THE VOIR DIRE PROCESS

Voir Dire:

The last thing I want to do, before we begin to select the jury, is to explain to you how the selection process works.

Questions/Challenges: This is the part of the case where the parties and their lawyers have the opportunity to get to know a little bit about you, in order to help them come to their own conclusions about your ability to be fair and impartial, so they can decide who they think should be the jurors in this case.

How we go about that is as follows: First, I'll ask some general questions of you. Then, each of the lawyers will have more specific questions that they will ask of you. After they have asked all of their questions, I will meet with them and they will tell me their choices for jurors. Each side can ask that I exclude a person from serving on a jury if they can give me a reason to believe that he or she might be unable to be fair and impartial. That is what is called a  [294]  challenge for cause. The lawyers also have a certain number of what are called peremptory challenges, by which they may exclude a person from the jury without giving a reason.  [24] By this process of elimination, the remaining persons are selected as the jury. It may take more than one conference among the parties, their attorneys, and me before the final selections are made.

Purpose of Questioning: The questions that you will be asked during this process are not intended to embarrass you or unnecessarily pry into your personal affairs, but it is important that the parties and their attorneys know enough about you to make this important decision. If a question is asked that you would prefer not to answer in front of the whole courtroom, just let me know and you can come up here and give your answer just in front of the attorneys and me. If you have a question of either the attorneys or me, don't hesitate to let me know.

Response to Questioning: There are no right or wrong answers to the questions that will be asked of you. The only thing that I ask is that you answer the questions as frankly and as honestly and as completely as you can. You [will take] [have taken] an oath to answer all questions truthfully and completely and you must do so. Remaining silent when you have information you should disclose is a violation of that oath as well. If a juror violates this  [25] oath, it not only may result in having to try the case all over again but also can result in civil and criminal penalties against a juror personally. So, again, it is very important that you be as honest and complete with your answers as you possibly can. If you don't understand the question, please raise your hand and ask for an explanation or clarification.

In sum, this is a process to assist the parties and their attorneys to select a fair and impartial jury. All of the questions they ask you are for this purpose. If, for any reason, you do not think you can be a fair and impartial juror, you must tell us.

NOTES ON USE FOR 201.3

1. The publication of this recommended instruction is not intended to intrude upon the trial judge's own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.

2. The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops.

B. AFTER JURY SELECTED AND SWORN

202.1 INTRODUCTION

Administer oath:

You have now taken an oath to serve as jurors in this trial. Before we  [26] begin, I am going to tell you about the rules of law that apply to this case and let you know what you can expect as the trial proceeds.

It is my intention to give you [all] [most] of the rules of law but it might be that I will not know for sure all of the law that will apply in this case until all of the evidence is presented. However, I can anticipate most of the law and give it to you at the beginning of the trial so that you will better understand what to be looking for while the evidence is presented. If I later decide that different or additional law applies to the  [295]  case, I will tell you. In any event, at the end of the evidence I will give you the final instructions on which you must base your verdict. At that time, you will have a complete written set of the instructions so you do not have to memorize what I am about to tell you.

(Continue with the Substantive Law, Damages, and General Instructions from the applicable sections of this book, followed by the applicable parts of 202.2 through 202.5)

NOTE ON USE FOR 202.1

The committee recommends giving the jury at the beginning of the trial a complete as possible set of instructions on the Substantive Law, Damages, and General Instructions.

202.2  [27] EXPLANATION OF THE TRIAL PROCEDURE

Now that you have heard the law, I want to let you know what you can expect as the trial proceeds.

Opening Statements: In a few moments, the attorneys will each have a chance to make what are called opening statements. In an opening statement, an attorney is allowed to give you [his] [her] views about what the evidence will be in the trial and what you are likely to see and hear in the testimony.

Evidentiary Phase: After the attorneys' opening statements the plaintiffs will bring their witnesses and evidence to you.

Evidence: Evidence is the information that the law allows you to see or hear in deciding this case. Evidence includes the testimony of the witnesses, documents, and anything else that I instruct you to consider.

Witnesses: A witness is a person who takes an oath to tell the truth and then answers attorneys' questions for the jury. The answering of attorneys' questions by witnesses is called "giving testimony." Testimony means statements that are made when someone has sworn an oath to tell the truth.

The plaintiff's lawyer will normally ask a witness the questions first. That is called direct examination. Then the defense lawyer may ask the same  [28] witness additional questions about whatever the witness has testified to. That is called cross-examination. Certain documents or other evidence may also be shown to you during direct or cross-examination. After the plaintiff's witnesses have testified, the defendant will have the opportunity to put witnesses on the stand and go through the same process. Then the plaintiff's lawyer gets to do cross-examination. The process is designed to be fair to both sides.

It is important that you remember that testimony comes from witnesses. The attorneys do not give testimony and they are not themselves witnesses.

Objections: Sometimes the attorneys will disagree about the rules for trial procedure when a question is asked of a witness. When that happens, one of the lawyers may make what is called an "objection." The rules for a trial can be complicated, and there are many reasons for attorneys to object. You should simply wait for me to decide how to proceed. If I say that an objection is "sustained," that means you should disregard the question and the witness may not answer the question. If I say that the objection is "overruled," that means the witness may answer the question.

When there is an  [29] objection and I make a decision, you must not assume from that decision that I have any particular  [296]  opinion other than that the rules for conducting a trial are being correctly followed. If I say a question may not be asked or answered, you must not try to guess what the answer would have been. That is against the rules, too.

Side Bar Conferences: Sometimes I will need to speak to the attorneys about legal elements of the case that are not appropriate for the jury to hear. The attorneys and I will try to have as few of these conferences as possible while you are giving us your valuable time in the courtroom. But, if we do have to have such a conference during testimony, we will try to hold the conference at the side of my desk so that we do not have to take a break and ask you to leave the courtroom.

Recesses: Breaks in an ongoing trial are usually called "recesses." During a recess you still have your duties as a juror and must follow the rules, even while having coffee, at lunch, or at home.

Instructions Before Closing Arguments: After all the evidence has been presented to you, I will instruct you in the law that you must follow. It is important that you remember these instructions  [30] to assist you in evaluating the final attorney presentations, which come next, and, later, during your deliberations, to help you correctly sort through the evidence to reach your decision.

Closing Arguments: The attorneys will then have the opportunity to make their final presentations to you, which are called closing arguments.

Final Instructions: After you have heard the closing arguments, I will instruct you further in the law as well as explain to you the procedures you must follow to decide the case.

Deliberations: After you hear the final jury instructions, you will go to the jury room and discuss and decide the questions I have put on your verdict form. [You will have a copy of the jury instructions to use during your discussions.] The discussions you have and the decisions you make are usually called "jury deliberations." Your deliberations are absolutely private and neither I nor anyone else will be with you in the jury room.

Verdict: When you have finished answering the questions, you will give the verdict form to the bailiff, and we will all return to the courtroom where your verdict will be read. When that is completed, you will be released from your assignment as a juror.

What  [31] are the rules?

Finally, before we begin the trial, I want to give you just a brief explanation of rules you must follow as the case proceeds.

Keeping an Open Mind: You must pay close attention to the testimony and other evidence as it comes into the trial. However, you must avoid forming any final opinion or telling anyone else your views on the case until you begin your deliberations. This rule requires you to keep an open mind until you have heard all of the evidence and is designed to prevent you from influencing how your fellow jurors think until they have heard all of the evidence and had an opportunity to form their own opinions. The time and place for coming to your final opinions and speaking about them with your fellow jurors is during deliberations in the jury room, after all of the evidence has been presented, closing arguments have been made, and I have instructed you on the law. It is important that you hear all of the facts and  [297]  that you hear the law and how to apply it before you start deciding anything.

Consider Only the Evidence: It is the things you hear and see in this courtroom that matter in this trial. The law tells us that a juror can consider only the testimony  [32] and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you must not do any work or investigation of your own about the case. You must not obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. You must not visit places mentioned in the trial or use the internet to look at maps or pictures to see any place discussed during trial.

Do not provide any information about this case to anyone, including friends or family members. Do not let anyone, including the closest family members, make comments to you or ask questions about the trial. Jurors must not have discussions of any sort with friends or family members about the case or the people and places involved. So, do not let even the closest  [33] family members make comments to you or ask questions about the trial. In this age of electronic communication, I want to stress again that just as you must not talk about this case face-to-face, you must not talk about this case by using an electronic device. You must not use phones, computers or other electronic devices to communicate. Do not send or accept any messages related to this case or your jury service. Do not discuss this case or ask for advice by any means at all, including posting information on an Internet website, chat room or blog.

No Mid-Trial Discussions: When we are in a recess, do not discuss anything about the trial or the case with each other or with anyone else. If attorneys approach you, don't speak with them. The law says they are to avoid contact with you. If an attorney will not look at you or speak to you, do not be offended or form a conclusion about that behavior. The attorney is not supposed to interact with jurors outside of the courtroom and is only following the rules. The attorney is not being impolite. If an attorney or anyone else does try to speak with you or says something about the case in your presence, please inform the bailiff immediately.

Only  [34] the Jury Decides: Only you get to deliberate and answer the verdict questions at the end of the trial. I will not intrude into your deliberations at all. I am required to be neutral. You should not assume that I prefer one decision over another. You should not try to guess what my opinion is about any part of the case. It would be wrong for you to conclude that anything I say or do means that I am for one side or another in the trial. Discussing and deciding the facts is your job alone.

NOTES ON USE FOR 202.2

1. This instruction is intended for situations in which at the end of the case the jury is going to be instructed before closing argument. The committee strongly recommends instructing the jury before closing argument. If, however, the court is going to instruct the jury after closing  [298]  argument, this instruction will have to be amended.

2. The publication of this recommended instruction is not intended to intrude upon the trial judge's own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.

3. The portion of this instruction dealing with communication with others and outside research may need to be modified to include  [35] other specified means of communication or research as technology develops.

202.3 NOTE-TAKING BY JURORS

If you would like to take notes during the trial, you may do so. On the other hand, of course, you are not required to take notes if you do not want to. That will be left up to you individually.

You will be provided with a note pad and a pen for use if you wish to take notes. Any notes that you take will be for your personal use. However, you should not take them with you from the courtroom. During recesses, the bailiff will take possession of your notes and will return them to you when we reconvene. After you have completed your deliberations, the bailiff will deliver your notes to me. They will be destroyed. No one will ever read your notes.

If you take notes, do not get so involved in note-taking that you become distracted from the proceedings. Your notes should be used only as aids to your memory.

Whether or not you take notes, you should rely on your memory of the evidence and you should not be unduly influenced by the notes of other jurors. Notes are not entitled to any greater weight than each juror's memory of the evidence.

NOTES ON USE FOR 202.3

1. The court should furnish all jurors  [36] with the necessary pads and pens for taking notes. Additionally, it may be desirable for jurors to be furnished with envelopes to place the notes for additional privacy.

2. Fla. R. Jud. Admin. 2.430(k) provides that at the conclusion of the trial, the court shall collect and immediately destroy all juror notes.

3. Fla. R. Civ. P. 1.455 provides that the trial court may, in its discretion, authorize the use of juror notebooks to contain documents and exhibits as an aid to the jurors in performing their duties.

4. When it is impractical to take exhibits into the jury room, this instruction should be modified to describe how the jury will have access to the exhibits.

202.4 JUROR QUESTIONS

During the trial, you may have a question you think should be asked of a witness. If so, there is a procedure by which you may request that I ask the witness a question. After all the attorneys have completed their questioning of the witness, you should raise your hand if you have a question. I will then give you sufficient time to write the question on a piece of paper, fold it, and give it to the bailiff, who will pass it to me. You must not show your question to anyone or discuss it with anyone.

I will  [37] then review the question with the attorneys. Under our law, only certain evidence may be considered by a jury in determining a verdict. You are bound by the same rules of evidence that control the attorneys' questions. If I decide that the question may not be  [299]  asked under our rules of evidence, I will tell you. Otherwise, I will direct the question to the witness. The attorneys may then ask follow-up questions if they wish. If there are additional questions from jurors, we will follow the same procedure again.

By providing this procedure, I do not mean to suggest that you must or should submit written questions for witnesses. In most cases, the lawyers will have asked the necessary questions.

NOTE ON USE FOR 202.4

Fla. R. Civ. P. 1.452 mandates that jurors be permitted to submit written questions directed to witnesses or the court.

202.5 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION

[A] [Some] witness[es] may testify in (language to be used) which will be interpreted in English.

The evidence you are to consider is only that provided through the official court interpreters. Although some of you may know (language used), it is important that all jurors consider the same evidence.  [38] Therefore, you must accept the English interpretation. You must disregard any different meaning.

If, however, during the testimony there is a question as to the accuracy of the English interpretation, you should bring this matter to my attention immediately by raising your hand. You should not ask your question or make any comment about the interpretation in the presence of the other jurors, or otherwise share your question or concern with any of them. I will take steps to see if your question can be answered and any discrepancy resolved. If, however, after such efforts a discrepancy remains, I emphasize that you must rely only upon the official English interpretation as provided by the court interpreter and disregard any other contrary interpretation.

NOTE ON USE FOR 202.5

When instructing the jury at the beginning of the trial, this instruction should be used in lieu of 601.3. See United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir. 1995).

SECTION 300 — EVIDENCE INSTRUCTIONS

301.1 DEPOSITION TESTIMONY, INTERROGATORIES, STIPULATED TESTIMONY, STIPULATIONS, AND ADMISSIONS

a. Deposition or prior testimony:

Members of the  [39] jury, the sworn testimony of (name), given before trial, will now be presented. You are to consider and weigh this testimony as you would any other evidence in the case.

b. Interrogatories:

Members of the jury, answers to interrogatories will now be read to you. Interrogatories are written questions that have been presented before trial by one party to another. They are answered under oath. You are to consider and weigh these questions and answers as you would any other evidence in the case.

c. Stipulated testimony:

Members of the jury, the parties have agreed that if (name of witness) were called as a witness, [he] [she] would testify  [300]  (read or describe the testimony). You are to consider and weigh this testimony as you would any other evidence in the case.

d. Stipulations:

Members of the jury, the parties have agreed to certain facts. You must accept these facts as true. (Read the agreed facts).

e. Admissions:

1. Applicable to all parties:

Members of the jury, (identify the party or parties that have admitted the facts) [has] [have] admitted certain facts. You must accept these facts as true. (Read the admissions).

2. Applicable to fewer than all parties:

Members of the jury, (identify the party  [40] or parties that have admitted the facts) [has] [have] admitted certain facts. You must accept these facts as true in deciding the issues between (identify the affected parties), but these facts should not be used in deciding the issues between (identify the unaffected parties). (Read the admissions).

NOTE ON USE FOR 301.1

The committee recommends that the appropriate explanation be read immediately before a deposition, or an interrogatory and answer, stipulated testimony, a stipulation, or an admission are read in evidence, and that no instruction on the subject be repeated at the conclusion of the trial.

301.2 INSTRUCTION WHEN FIRST ITEM OF DOCUMENTARY, PHOTOGRAPHIC, OR PHYSICAL EVIDENCE IS ADMITTED

The (describe item of evidence) has now been received in evidence. Witnesses may testify about or refer to this or any other item of evidence during the remainder of the trial. This and all other items received in evidence will be available to you for examination during your deliberations at the end of the trial.

NOTE ON USE FOR 301.2

This instruction should be given when the first item of evidence is received in evidence. It may be appropriate to repeat this instruction when items received  [41] in evidence are not published to the jury. It may be combined with 301.5 in appropriate circumstances. It may also be given in conjunction with 301.4 if a witness has used exhibits which have been admitted in evidence and demonstrative aids which have not.

301.3 INSTRUCTION WHEN EVIDENCE IS FIRST PUBLISHED TO JURORS

The (describe item of evidence) has been received in evidence. It is being shown to you now to help you understand the testimony of this witness and other witnesses in the case, as well as the evidence as a whole. You may examine (describe item of evidence) briefly now. It will also be available to you for examination during your deliberations at the end of the trial.

NOTE ON USE FOR 301.3

This instruction may be given when an item received in evidence is handed to the jurors. It may be combined with 301.5 in appropriate circumstances.

301.4 INSTRUCTION REGARDING VISUAL OR DEMONSTRATIVE AIDS

a. Generally:

This witness will be using (identify demonstrative or visual aid(s)) to assist in  [301]  explaining or illustrating [his] [her] testimony. The testimony of the witness is evidence; however, [this] [these] (identify demonstrative or visual aid(s)) [is] [are] not to be considered as evidence  [42] in the case unless received in evidence, and should not be used as a substitute for evidence. Only items received in evidence will be available to you for consideration during your deliberations.

b. Specially created visual or demonstrative aids based on disputed assumptions:

This witness will be using (identify demonstrative aid(s)) to assist in explaining or illustrating [his] [her] testimony. [This] [These] item[s] [has] [have] been prepared to assist this witness in explaining [his] [her] testimony. [It] [They] may be based on assumptions which you are free to accept or reject. The testimony of the witness is evidence; however, [this] [these] (identify demonstrative or visual aid(s)) [is] [are] not to be considered as evidence in the case unless received in evidence, and should not be used as a substitute for evidence. Only items received in evidence will be available to you for consideration during your deliberations.

NOTES ON USE FOR 301.4

1. Instruction 301.4a should be given at the time a witness first uses a demonstrative or visual aid which has not been specially created for use in the case, such as a skeletal model.

2. Instruction 301.4b is designed for use when a witness intends  [43] to use demonstrative or visual aids which are based on disputed assumptions, such as a computer-generated model. This instruction should be given at the time the witness first uses these demonstrative or visual aids. This instruction should be used in conjunction with 301.3 if a witness uses exhibits during testimony, some of which are received in evidence, and some of which are not.

301.5 EVIDENCE ADMITTED FOR A LIMITED PURPOSE

The (describe item of evidence) has now been received into evidence. It has been admitted only [for the purpose of (describe purpose)] [as to (name party)]. You may consider it only [for that purpose] [as it might affect (name party)]. You may not consider that evidence [for any other purpose] [as to [any other party] [(name other party(s)].

301.6 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION

Introduction:

The law requires that the court appoint a qualified interpreter to assist a witness who does not readily speak or understand the English language in testifying. The interpreter does not work for either side in this case. [He] [She] is completely neutral in the matter and is here solely to assist us in communicating with the witness. [He] [She]  [44] will repeat only what is said and will not add, omit, or summarize anything. The interpreter in this case is (name of interpreter). The oath will now be administered to the interpreter.

Oath to Interpreter:

Do you solemnly swear or affirm that you will make a true interpretation to the witness of all questions or statements made to [him] [her] in a language which that person understands, and interpret the witness's statements into the English language, to the best of your abilities [so help you God]?

 [302]  Foreign Language Testimony:

You are about to hear testimony of a witness who will be testifying in (language used). This witness will testify through the official court interpreter. Although some of you may know (language used), it is important that all jurors consider the same evidence. Therefore, you must accept the English translation of the witness's testimony. You must disregard any different meaning.

If, however, during the testimony there is a question as to the accuracy of the English interpretation, you should bring this matter to my attention immediately by raising your hand. You should not ask your question or make any comment about the interpretation in the presence of the other  [45] jurors, or otherwise share your question or concern with any of them. I will take steps to see if your question can be answered and any discrepancy resolved. If, however, after such efforts a discrepancy remains, I emphasize that you must rely only upon the official English interpretation as provided by the court interpreter and disregard any other contrary interpretation.

NOTE ON USE FOR 301.6

This instruction should be given to the jury immediately before the testimony of a witness who will be testifying through the services of an official court interpreter. Compare United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998) (jury properly instructed that it must accept translation of foreign-language tape-recording when accuracy of translation is not in issue); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir. 1995).

301.7 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSCRIPT OF RECORDING IN FOREIGN LANGUAGE (ACCURACY NOT IN DISPUTE)

You are about to listen to a tape recording in (language used). Each of you has been given a transcript of the recording which has been admitted into evidence. The transcript is a translation of the foreign language tape recording.

Although some  [46] of you may know (language used), it is important that all jurors consider the same evidence. Therefore, you must accept the English translation contained in the transcript and disregard any different meaning.

If, however, during the testimony there is a question as to the accuracy of the English translation, you should bring this matter to my attention immediately by raising your hand. You should not ask your question or make any comment about the translation in the presence of the other jurors, or otherwise share your question or concern with any of them. I will take steps to see if your question can be answered and any discrepancy resolved. If, however, after such efforts a discrepancy remains, I emphasize that you must rely only upon the official English translation as provided by the court interpreter and disregard any other contrary translation.

NOTE ON USE FOR 301.7

This instruction is appropriate immediately prior to the jury hearing a tape-recorded conversation in a foreign language if the accuracy of the translation is not an issue. See, e.g., United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998); United States v. Fuentes-Montijo, 68 F.3d 352, 355-56 (9th Cir. 1995).

 [303]  301.8  [47] JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION — TRANSCRIPT OF RECORDING IN FOREIGN LANGUAGE (ACCURACY IN DISPUTE)

You are about to listen to a tape recording in (language used). Each of you has been given a transcript of the recording. The transcripts were provided to you by [the plaintiff] [the defendant] so that you could consider the content of the recordings. The transcript is an English translation of the foreign language tape recording.

Whether a transcript is an accurate translation, in whole or in part, is for you to decide. In considering whether a transcript accurately describes the meaning of a conversation, you should consider the testimony presented to you regarding how, and by whom, the transcript was made. You may consider the knowledge, training, and experience of the translator, as well as the nature of the conversation and the reasonableness of the translation in light of all the evidence in the case. You should not rely in any way on any knowledge you may have of the language spoken on the recording; your consideration of the transcripts should be based on the evidence introduced in the trial.

NOTE ON USE FOR 301.8

This instruction is appropriate immediately  [48] prior to the jury hearing a tape-recorded conversation in a foreign language if the accuracy of the translation is an issue. See, e.g., United States v. Jordan, 223 F.3d 676, 689 (7th Cir. 2000). See also Seventh Circuit Federal Criminal Jury Instructions §3.18.

301.9 DISREGARD STRICKEN MATTER

NOTE ON USE FOR 301.9

No standard instruction is provided. The court should give an instruction that is appropriate to the circumstances. In drafting a curative instruction, the court must decide on a measured response that will do more good than harm, going no further than necessary. The language of curative instructions should be carefully selected so as not to punish a party or attorney.

301.10 INSTRUCTION BEFORE RECESS

NOTE ON USE FOR 301.10

No standard instruction is provided. The jury should be given an appropriate reminder in advance of any recess.

SECTION 400 — SUBSTANTIVE INSTRUCTIONS

NOTE ON USE

These substantive instructions should be followed by the applicable sections from Damages, Substantive Instructions — General, and Closing Instructions (Before Final Argument).

These instructions are numbered 416 (as a series) to not conflict with the instructions already numbered 401 through 415 by the  [49] Florida Supreme Court Committee on Standard Jury Instructions in Civil Cases.

416.1 BREACH OF CONTRACT — INTRODUCTION

(Claimant) claims that [he] [she] [it] and (defendant) entered into a contract for (insert brief summary of alleged contract).

 [304]  (Claimant) claims that (defendant) breached this contract by (briefly state alleged breach), and that the breach resulted in damages to (claimant).

(Defendant) denies (insert denial of any of the above claims). (Defendant) also claims (insert affirmative defense).

NOTE ON USE FOR 416.1

This instruction is intended to introduce the jury to the issues involved in the case. It should be read before the instructions on the substantive law.

416.2 THIRD-PARTY BENEFICIARY

(Claimant) is not a party to the contract. However, (claimant) may be entitled to damages for breach of the contract if [he] [she] [it] proves that (insert names of the contracting parties) intended that (claimant) benefit from their contract.

It is not necessary for (claimant) to have been named in the contract. In deciding what (insert names of the contracting parties) intended, you should consider the contract as a whole, the circumstances under which it was made, and the apparent purpose  [50] the parties were trying to accomplish.

SOURCES AND AUTHORITIES FOR 416.2

See Restatement (Second) of Contracts § 302 (1981):

[A] beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and ... the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

While the Supreme Court has not commented directly on the applicability of the Restatement (Second) of Contracts § 302 (1981) (but note Justice Shaw's partial concurrence in Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 280-81 (Fla. 1985)), all five district courts of appeal have cited the Restatement (Second) of Contracts § 302 (1981). Civix Sunrise, GC, LLC v. Sunrise Road Maintenance Assn., Inc., 997 So.2d 433 (Fla. 2d DCA 2008); Technicable Video Systems, Inc. v. Americable of Greater Miami, Ltd., 479 So.2d 810 (Fla. 3d DCA 1985); Cigna Fire Underwriters Ins. Co. v. Leonard, 645 So.2d 28 (Fla. 4th DCA 1994); Warren v. Monahan Beaches Jewelry Center, Inc., 548 So.2d 870 (Fla. 1st DCA 1989); Publix Super Markets, Inc. v. Cheesbro Roofing, Inc., 502 So.2d 484 (Fla. 5th DCA 1987).  [51] See also A.R. Moyer, Inc. v. Graham, 285 So.2d 397, 402 (Fla. 1973), and Carvel v. Godley, 939 So.2d 204, 207-208 (Fla. 4th DCA 2006) ("The question of whether a contract was intended for the benefit of a third person is generally regarded as one of construction of the contract. The intention of the parties in this respect is determined by the terms of the contract as a whole, construed in the light of the circumstances under which it was made and the apparent purpose that the parties are trying to accomplish.").

416.3 CONTRACT FORMATION — ESSENTIAL FACTUAL ELEMENTS

(Claimant) claims that the parties entered into a contract. To prove that a contract was created, (claimant) must prove all of the following:

1. The essential contract terms were clear enough that the parties could understand what each was required to do;

2. The parties agreed to give each other something of value. [A promise  [305]  to do something or not to do something may have value]; and

3. The parties agreed to the essential terms of the contract. When you examine whether the parties agreed to the essential terms of the contract, ask yourself if, under the circumstances, a reasonable person would conclude, from the words and conduct  [52] of each party, that there was an agreement. The making of a contract depends only on what the parties said or did. You may not consider the parties' thoughts or unspoken intentions.

Note: If neither offer nor acceptance is contested, then element #3 should not be given.

If (Claimant) did not prove all of the above, then a contract was not created.

NOTE ON USE FOR 416.3

This instruction should be given only when the existence of a contract is contested. If both parties agree that they had a contract, then the instructions relating to whether a contract was actually formed would not need to be given. At other times, the parties may be contesting only a limited number of contract formation issues. Also, some of these issues may be decided by the judge as a matter of law. Users should omit elements in this instruction that are not contested so that the jury can focus on the contested issues. Read the bracketed language only if it is an issue in the case.

SOURCES AND AUTHORITIES FOR 416.3

1. The general rule of contract formation was enunciated by the Florida Supreme Court in St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla. 2004) ("An oral contract ... is subject to the basic requirements of  [53] contract law such as offer, acceptance, consideration and sufficient specification of essential terms.").

2. The first element of the instruction refers to the definiteness of essential terms of the contract. "The definition of 'essential term' varies widely according to the nature and complexity of each transaction and is evaluated on a case-by-case basis." Lanza v. Damian Carpentry, Inc., 6 So.3d 674, 676 (Fla. 1st DCA 2009). See also Leesburg Community Cancer Center v. Leesburg Regional Medical Center, 972 So.2d 203, 206 (Fla. 5th DCA 2007) ("We start with the basic premise that no person or entity is bound by a contract absent the essential elements of offer and acceptance (its agreement to be bound to the contract terms), supported by consideration.").

3. The second element of the instruction requires giving something of value. In Florida, to constitute valid consideration there must be either a benefit to the promisor or a detriment to the promisee. Mangus v. Present, 135 So.2d 417, 418 (Fla. 1961). The detriment necessary for consideration need not be an actual loss to the promisee, but it is sufficient if the promisee does something that he or she is not legally bound to do. Id.

4.  [54] The final element of this instruction requires an objective test. "[A]n objective test is used to determine whether a contract is enforceable." Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla. 1985). The intention as expressed controls rather than the intention in the minds of the parties. "The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs-not on the parties having meant the same thing but on their having said the same thing." Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla. 1957).

 [306]  416.4 BREACH OF CONTRACT — ESSENTIAL FACTUAL ELEMENTS

To recover damages from (defendant) for breach of contract, (claimant) must prove all of the following:

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

2. (Claimant) did all, or substantially all, of the essential things which the contract required [him] [her] [it] to do [or that [he] [she] [it] was excused from doing those things];

3. [All conditions required by the contract for (defendant's) performance had occurred;]

4. [(Defendant) failed to do something essential which the contract required [him] [her] [it] to do] [(Defendant) did something which the contract prohibited  [55] [him] [her] [it] from doing and that prohibition was essential to the contract]; and

Note: If the allegation is that the defendant breached the contract by doing something that the contract prohibited, use the second option.

5. (Claimant) was harmed by that failure.

NOTE ON USE FOR 416.4

In many cases, some of the above elements may not be contested. In those cases, users should delete the elements that are not contested so that the jury can focus on the contested issues.

SOURCES AND AUTHORITIES FOR 416.4

1. An adequately pled breach of contract action requires three elements: (1) a valid contract; (2) a material breach; and (3) damages. Friedman v. New York Life Ins. Co., 985 So.2d 56, 58 (Fla. 4th DCA 2008). This general rule was enunciated by various Florida district courts of appeal. See Murciano v. Garcia, 958 So.2d 423, 423-24 (Fla. 3d DCA 2007); Abbott Laboratories, Inc. v. General Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000); Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla. 2d DCA 1994); Knowles v. C.I.T. Corp., 346 So.2d 1042, 1043 (Fla. 1st DCA 1977).

2. To maintain an action for breach of contract, a claimant must first establish performance on the claimant's  [56] part of the contractual obligations imposed by the contract. Marshall Construction, Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So.2d 845, 848 (Fla. 1st DCA 1990). A claimant is excused from establishing performance if the defendant anticipatorily repudiated the contract. Hosp. Mortg. Grp. v. First Prudential Dev. Corp., 411 So.2d 181, 182-83 (Fla. 1982). Repudiation constituting a prospective breach of contract may be evidenced by words or voluntary acts but refusal must be distinct, unequivocal and absolute. Mori v. Matsushita Elec. Corp. of Am., 380 So.2d 461, 463 (Fla. 3d DCA 1980).

3. "Substantial performance is performance 'nearly equivalent to what was bargained for.'" Strategic Resources Grp., Inc. v. Knight-Ridder, Inc., 870 So.2d 846, 848 (Fla. 3d DCA 2003). "Substantial performance is that performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee the full contract price subject to the promisor's right to recover whatever damages may have been occasioned him by the promisee's failure to render full performance." Ocean Ridge Dev. Corp. v. Quality Plastering, Inc., 247 So.2d 72, 75 (Fla. 4th DCA 1971).

 [307]  4.  [57] The doctrine of substantial performance applies when the variance from the contract specifications is inadvertent or unintentional and unimportant so that the work actually performed is substantially what was called for in the contract. Lockhart v. Worsham, 508 So.2d 411, 412 (Fla. 1st DCA 1987). "In the context of contracts for construction, the doctrine of substantial performance is applicable only where the contractor has not willfully or materially breached the terms of his contract or has not intentionally failed to comply with the specifications." National Constructors, Inc. v. Ellenberg, 681 So.2d 791, 793 (Fla. 3d DCA 1996).

5. "There is almost always no such thing as 'substantial performance' of payment between commercial parties when the duty is simply the general one to pay." Hufcor/Gulfstream, Inc. v. Homestead Concrete & Drainage, Inc., 831 So.2d 767, 769 (Fla. 4th DCA 2002).

416.5 ORAL OR WRITTEN CONTRACT TERMS

[Contracts may be written or oral.]

[Contracts may be partly written and partly oral.]

Oral contracts are just as valid as written contracts.

NOTE ON USE FOR 416.5

Give the bracketed alternative that is most applicable to the facts of the case. If the complete agreement  [58] is in writing, this instruction should not be given.

SOURCES AND AUTHORITIES FOR 416.5

1. An "agreement, partly written and partly oral, must be regarded as an oral contract, the liability arising under which is not founded upon an instrument of writing." Johnson v. Harrison Hardware & Furniture Co., 119 Fla. 470, 152 So. 768, 160 So. 878, 879 (Fla. 1935).

2. An oral contract is subject to the basic requirements of contract law such as offer, acceptance, consideration, and sufficient specification of essential terms. St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla. 2004).

3. "The complaint alleged the execution of an oral contract, the obligation thereby assumed, and a breach. It therefore set forth sufficient facts which taken as true, would state a cause of action for breach of contract." Perry v. Cosgrove, 464 So.2d 664, 667 (Fla. 2d DCA 1985).

4. As long as an essential ingredient is not missing from an agreement, courts have been reluctant to hold contracts unenforceable on grounds of uncertainty, especially where one party has benefited from the other's reliance. Gulf Solar, Inc. v. Westfall, 447 So.2d 363 (Fla. 2d DCA 1984); Community Design Corp. v. Antonell, 459 So.2d 343 (Fla. 3d DCA 1984). When the existence  [59] of a contract is clear, the jury may properly determine the exact terms of an oral contract. Perry v. Cosgrove, 464 So.2d 664, 667 (Fla. 2d DCA 1985).

5. "To state a cause of action for breach of an oral contract, a plaintiff is required to allege facts that, if taken as true, demonstrate that the parties mutually assented to 'a certain and definite proposition' and left no essential terms open." W.R. Townsend Contracting, Inc. v. Jensen Civil Construction, Inc., 728 So.2d 297 (Fla. 1st DCA 1999). See also Carole Korn Interiors, Inc. v. Goudie, 573 So.2d 923 (Fla. 3d DCA 1990) (company which provided interior design services sufficiently alleged cause of action for breach of oral contract, when company alleged that: it had entered into oral contract with defendants for interior design services; company  [308]  had provided agreed services; defendants breached contract by refusing to remit payment; and company suffered damages); Rubenstein v. Primedica Healthcare, Inc., 755 So.2d 746, 748 (Fla. 4th DCA 2000) ("In this case, appellant sufficiently pled that Primedica, upon acquiring Shapiros' assets, which included their oral agreement with appellant, mutually assented to appellant's continued  [60] employment under the same terms and conditions as with Shapiro. Further, he alleged that he suffered damages as a result of his termination.").

416.6 CONTRACT IMPLIED IN FACT

Contracts can be created by the conduct of the parties, without spoken or written words. Contracts created by conduct are just as valid as contracts formed with words.

Conduct will create a contract if the conduct of both parties is intentional and each knows, or under the circumstances should know, that the other party will understand the conduct as creating a contract.

In deciding whether a contract was created, you should consider the conduct and relationship of the parties as well as all of the circumstances.

NOTE ON USE FOR 416.6

Use this instruction where there is no express contract, oral or written, between the parties, and the jury is being asked to infer the existence of a contract from the facts and circumstances of the case.

SOURCES AND AUTHORITIES FOR 416.6

1. "[A]n implied contract is one in which some or all of the terms are inferred from the conduct of the parties and the circumstances of the case, though not expressed in words." 17A Am. Jur. 2d Contracts § 12 (2009).

2. "In a contract implied in fact the  [61] assent of the parties is derived from other circumstances, including their course of dealing or usage of trade or course of performance." Rabon v. Inn of Lake City, Inc., 693 So.2d 1126, 1131 (Fla. 1st DCA 1997); McMillan v. Shively, 23 So.3d 830, 831 (Fla. 1st DCA 2009).

3. In Commerce Partnership 8098 Limited Partnership v. Equity Contracting Co., 695 So.2d 383, 387 (Fla. 4th DCA 1997), the Fourth District held:

A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties' conduct, not solely from their words." 17 Am. Jur. 2d Contracts § 3 (1964); Corbin, Corbin on Contracts §§ 1.18-1.20 (Joseph M. Perillo ed. 1993). When an agreement is arrived at by words, oral or written, the contract is said to be "express." 17 Am. Jur. 2d Contracts § 3. A contract implied in fact is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties' conduct to give definition to their unspoken agreement. Id.; Corbin on Contracts § 562 (1960). It is to this process of defining an enforceable agreement that Florida courts have referred when they have indicated  [62] that contracts implied in fact "rest upon the assent of the parties." Policastro v. Myers, 420 So.2d 324, 326 (Fla. 4th DCA 1982); Tipper v. Great Lakes Chemical Co., 281 So.2d 10, 13 (Fla. 1973). The supreme court described the mechanics of this process in Bromer v. Florida Power & Light Co., 45 So.2d 658, 660 (Fla. 1950):

[A] [c]ourt should determine and give to the alleged implied contract  [309]  "the effect which the parties, as fair and reasonable men, presumably would have agreed upon if, having in mind the possibility of the situation which has arisen, they had contracted expressly thereto." 12 Am. Jur. 2d 766.

See Mecier v. Broadfoot, 584 So.2d 159, 161 (Fla. 1st DCA 1991).

Common examples of contracts implied in fact are when a person performs services at another's request, or "where services are rendered by one person for another without his expressed request, but with his knowledge, and under circumstances" fairly raising the presumption that the parties understood and intended that compensation was to be paid. Lewis v. Meginniss, 30 Fla. 419, 12 So. 19, 21 (Fla. 1892); Tipper, 281 So.2d at 13. In these circumstances, the law implies the promise to pay a reasonable amount for the services. Lewis, 12 So. at 21;  [63] Lamoureux v. Lamoureux, 59 So.2d 9, 12 (Fla. 1951); A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996); Dean v. Blank, 267 So.2d 670 (Fla. 4th DCA 1972); Solutec Corp. v. Young & Lawrence Associates, Inc., 243 So.2d 605, 606 (Fla. 4th DCA 1971).

. . . .

For example, a common form of contract implied in fact is where one party has performed services at the request of another without discussion of compensation. These circumstances justify the inference of a promise to pay a reasonable amount for the service. The enforceability of this obligation turns on the implied promise, not on whether the defendant has received something of value. A contract implied in fact can be enforced even where a defendant has received nothing of value.

416.7 CONTRACT IMPLIED IN LAW

(Claimant) claims that (defendant) owes [him] [her] [it] money for (insert brief summary of allegations). To establish this claim, (claimant) must prove all of the following:

1. (Claimant) gave a benefit to (defendant);

2. (Defendant) knew of the benefit;

3. (Defendant) accepted or retained the benefit; and

4. The circumstances are such that (defendant) should, in all fairness, be required to pay for the benefit.

SOURCES AND AUTHORITIES  [64] FOR 416.7

1. "To describe the cause of action encompassed by a contract implied in law, Florida courts have synonymously used a number of different terms — quasi contract, unjust enrichment, restitution, constructive contract, and quantum meruit." Commerce Partnership 8098 Limited Partnership v. Equity Contracting Co., 695 So.2d 383, 386 (Fla. 4th DCA 1997) (internal quotations and footnotes omitted). However, a contract implied in law "is not based upon the finding, by a process of implication from the facts, of an agreement between the parties. A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties' expression of assent by their words or conduct. The fiction was adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation." Id. "The elements of a cause of action for a quasi contract are that: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has accepted or retained the benefit conferred  [310]  and (4) the circumstances are such that it would  [65] be inequitable for the defendant to retain the benefit without paying fair value for it. Because the basis for recovery does not turn on the finding of an enforceable agreement, there may be recovery under a contract implied in law even where the parties had no dealings at all with each other." Id. (internal citations omitted).

2. The committee has drafted this instruction because a claim to establish a contract implied in law may be a claim in equity for the court to decide or a claim at law for a jury to decide. See Della Ratta v. Della Ratta, 927 So.2d 1055, 1060 n.2 (Fla. 4th DCA 2006) ("In Florida, all implied contract actions, including unjust enrichment, were part of the action of assumpsit, which was an action at law under the common law. Although some Florida courts have described quasi contracts as being 'equitable in nature,' the term has been used in the sense of 'fairness,' to describe that quality which makes an enrichment unjust, and not as a reference to the equity side of the court.") (internal citations omitted).

416.8 CONTRACT FORMATION — OFFER

Both an offer and an acceptance are required to create a contract. (Defendant) contends a contract was not created because  [66] there was never any offer. To establish that an offer was made, (claimant) must prove:

1. (Claimant) communicated to (defendant) that [he] [she] [it] was willing to enter into a contract with (defendant);

2. The communication[s] contained the essential terms of the offer; and

3. Based on the communication, (defendant) could have reasonably concluded that a contract with these terms would result if [he] [she] [it] accepted the offer.

If (claimant) did not prove all of the above, then no offer was made and no contract was created.

NOTE ON USE FOR 416.8

Do not give this instruction unless the defendant has testified or offered other evidence in support of his or her contention. This instruction assumes that the defendant is alleging that the claimant never made an offer. Change the identities of the parties in the indented paragraphs if, under the facts of the case, the roles of the parties are switched (e.g., if defendant was the alleged offeror). If the existence of an offer is not contested, then this instruction is unnecessary.

SOURCES AND AUTHORITIES FOR 416.8

1. The court in Lee County v. Pierpont, 693 So.2d 994 (Fla. 2d DCA 1997), defined "offer" as follows: "A proposal to do a thing or  [67] pay an amount, usually accompanied by an expected acceptance, counter-offer, return promise or act. A manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it." Id. at 996 (citation omitted).

2. "The rule that it is possible for parties to make an enforceable contract binding them to prepare and execute a subsequent agreement is well recognized. However, if the document or contract that the parties agree to make is to contain any material term that is not already agreed on, no contract has yet been made; and the so-called 'contract to make a contract' is not a contract at all." John I. Moss, Inc. v. Cobbs Co., 198 So.2d 872, 874 (Fla. 3d DCA 1967).

 [311]  3. In Socarras v. Claughton Hotels, Inc., 374 So.2d 1057, 1060 (Fla. 3d DCA 1979), the court found that a "handwritten note evidences only [the defendant's] willingness to negotiate a contract with potential purchasers who might be interested in the general terms that he outlined. The note did not incorporate all of the essential terms necessary to make an enforceable contract for the sale of the land. It reflected only the state  [68] of negotiations at that point, preliminary negotiations which never ripened into a formal agreement."

416.9 CONTRACT FORMATION — REVOCATION OF OFFER

Both an offer and an acceptance are required to create a contract. (Defendant) contends that the offer was withdrawn before the offer was accepted. To establish that the offer was not withdrawn, (claimant) must prove one of the following:

1. (Defendant) did not withdraw the offer; or

2. (Claimant) accepted the offer before (defendant) withdrew it; or

3. (Defendant's) withdrawal of the offer was never communicated to (claimant).

If (claimant) did not prove any of the above, then the offer was withdrawn and no contract was created.

NOTES ON USE FOR 416.9

1. Do not give this instruction unless the defendant has testified or offered other evidence to support this contention.

2. This instruction assumes that the defendant is claiming to have revoked the offer. Change the identities of the parties in the indented paragraphs if, under the facts of the case, the roles of the parties are switched (e.g., if the defendant was the alleged offeree).

SOURCES AND AUTHORITIES FOR 416.9

1. "A mere offer not assented to constitutes no contract, for there must be not  [69] only a proposal, but an acceptance thereof. So long as a proposal is not acceded to, it is binding upon neither party, and it may be retracted." Gibson v. Courtois, 539 So.2d 459, 460 (Fla. 1989).

2. "In the United States, the law is virtually uniform that a revocation requires communication and that an acceptance prior to a communicated revocation constitutes a binding contract." Lance v. Martinez-Arango, 251 So.2d 707, 709 (Fla. 3d DCA 1971).

3. "Where an offer has not been accepted by the offeree, the offeror may revoke the offer provided the communication of such revocation is received prior to acceptance." Kendel v. Pontious, 244 So.2d 543, 544 (Fla. 3d DCA 1971).

416.10 CONTRACT FORMATION — ACCEPTANCE

Both an offer and acceptance are required to create a contract. (Defendant) contends that a contract was not created because the offer was never accepted. To establish acceptance of the offer, (claimant) must prove (defendant) communicated [his] [her] [its] agreement to the terms of the offer.

[If (defendant) agreed only to certain conditions, or if [he] [she] [it] introduced a new term into the bargain, then there was no acceptance.]

NOTES ON USE FOR 416.10

1. Do not give this instruction  [70] unless the defendant has testified or offered other  [312]  evidence in support of the defendant's contention.

2. This instruction assumes that the defendant has denied accepting the claimant's offer. Change the identities of the parties in the indented paragraphs if, under the facts of the case, the roles of the parties are switched (e.g., if defendant was the alleged offeror).

SOURCE AND AUTHORITY FOR 416.10

The general rule is that an acceptance is not valid, and thus is ineffective to form a contract, unless it is communicated to the offeror. Kendel v. Pontious, 261 So.2d 167, 169-70 (Fla. 1972).

416.11 CONTRACT FORMATION — ACCEPTANCE BY SILENCE OR CONDUCT

Ordinarily, if a party does not say or do anything in response to another party's offer, then [he] [she] [it] has not accepted the offer. However, if (claimant) proves that [both [he] [she] [it] and (defendant) understood silence or inaction to mean that the offer was accepted] [the benefits of the offer were accepted] [(offeree) had a legal duty to speak from a past relationship between (claimant) and (defendant), (claimant)'s and (defendant)'s previous dealings, or (identify other circumstances creating a legal duty to speak)], then there  [71] was an acceptance.

NOTES ON USE FOR 416.11

1. This instruction should be read in conjunction with and immediately after Instruction 416.10, Contract Formation—Acceptance if acceptance by silence is an issue.

2. Pending further development of the law, the committee takes no position as to what "other circumstances" create a legal duty to speak. The committee does not consider the factors listed to be exclusive and, if the court determines that the jury may consider "other circumstances," the court should modify this instruction.

SOURCES AND AUTHORITIES FOR 416.11

1. "[A]n offeree who does any act inconsistent with the offeror's ownership of offered property is bound in accordance with the offered terms. In addition, such an exercise of dominion even though not intended as acceptance ... is a sufficient manifestation of assent ...." Stevenson v. Stevenson, 661 So.2d 367, 369 (Fla. 4th DCA 1995) (citing Restatement (Second) of Contracts § 69(2) and comment (e), and Scocozzo v. General Dev. Corp., 191 So.2d 572, 579 (Fla. 1966)).

2. Section 69 of the Restatement (Second) of Contracts states that if an offeree fails to reply to an offer, his or her silence and inaction operate as an acceptance  [72] in the following cases only:

(1) if an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation;

(2) if the offeror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction, and the offeree in remaining silent and inactive intends to accept the offer; or

(3) if, because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he or she does not intend to accept.

3. An offeree's silent acceptance of benefits from the offeror constitutes acceptance. See Hendricks v. Stark, 99 Fla. 277, 126 So. 293, 297 (Fla. 1930) ("It has been repeatedly held that a person by the acceptance  [313]  of benefits, may be estopped from questioning the validity and effect of a contract; and, where one has an election to ratify or disaffirm a conveyance, he can either claim under or against it, but he cannot do both, and, having adopted one course with knowledge of the facts, he cannot afterwards pursue the other.").

416.12 SUBSTANTIAL PERFORMANCE

(Defendant) claims that (claimant) did not perform all of the essential things which the  [73] contract required, and therefore (defendant) did not have to perform [his] [her] [its] obligations under the contract. To defeat this claim, (claimant) must prove both of the following:

1. (Claimant) performed in good faith; and

2. (Claimant's) performance was so nearly equivalent to what was bargained for that it would be unreasonable to deny [him] [her] [it] the full contract price less an appropriate reduction, if any, for (claimant's) failure to fully perform.

NOTE ON USE FOR 416.12

The measure of any reduction referred to in element 2 should be addressed in the damages instructions.

SOURCES AND AUTHORITIES FOR 416.12

1. "There is almost always no such thing as 'substantial performance' of payment between commercial parties when the duty is simply the general one to pay. Payment is either made in the amount and on the date due, or it is not." Enriquillo Export & Import, Inc. v. M.B.R. Indus., Inc., 733 So.2d 1124, 1127 (Fla. 4th DCA 1999).

2. "Substantial performance is that performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee the full contract price subject to the promisor's right  [74] to recover whatever damages may have been occasioned him by the promisee's failure to render full performance." Ocean Ridge Dev. Corp. v. Quality Plastering, Inc., 247 So.2d 72, 75 (Fla. 4th DCA 1971).

416.13 MODIFICATION

(Claimant) claims that the original contract was modified, or changed. (Defendant) denies that the contract was modified. Therefore, (Claimant) must prove that the parties agreed to the modification.

The parties to a contract may agree to modify its terms. You must decide whether a reasonable person would conclude from the words and conduct of (claimant) and (defendant) that they agreed to modify the contract. You cannot consider the parties' hidden intentions.

A contract in writing may be modified by a contract in writing, by a subsequent oral agreement between the parties, or by the parties' subsequent conduct [, if the modified agreement has been accepted and acted upon by the parties in such a manner as would work a fraud on either party to refuse to enforce it].

SOURCES AND AUTHORITIES FOR 416.13

1. In St. Joe Corporation v. McIver, 875 So.2d 375 (Fla. 2004), our Supreme Court said:

It is well established that the parties to a contract can discharge or modify the contract,  [75] however made or evidenced,  [314]  through a subsequent agreement. Whether the parties have validly modified a contract is usually a question of fact.

Under Florida law, the parties' subsequent conduct also can modify the terms in a contract. We note, however, that a party cannot modify a contract unilaterally. All the parties whose rights or responsibilities the modification affects must consent.

Id. at 381-82 (internal citations omitted).

2. The parol evidence rule does not bar the introduction of evidence of a subsequent oral contract modifying a written agreement. H.I. Resorts, Inc. v. Touchton, 337 So.2d 854, 856 (Fla. 2d DCA 1976).

3. "A written contract or agreement may be altered or modified by an oral agreement if the latter has been accepted and acted upon by the parties in such a manner as would work a fraud on either party to refuse to enforce it ... An oral modification under these circumstances is permissible even though there was in the written contract a provision prohibiting its alteration except in writing." Professional Ins. Corp. v. Cahill, 90 So.2d 916, 918 (Fla. 1956).

4. "[T]he actions of the parties may be considered as a means of determining the interpretation that they  [76] themselves have placed upon the contract." Lalow v. Codomo, 101 So.2d 390 (Fla. 1958).

5. "A written contract can be modified by subsequent oral agreement between the parties or by the parties' course of dealing ... Whether a written contract has been modified by subsequent oral agreement or by course of dealing is a question of fact for the jury." Kiwanis Club of Little Havana, Inc. v. De Kalafe, 723 So.2d 838, 841 (Fla. 3d DCA 1998).

416.14 INTERPRETATION — DISPUTED TERM(S)

(Claimant) and (defendant) dispute the meaning of the following term(s) contained in their contract: (insert text of term(s)).

(Claimant) claims that the term(s) means: (insert claimant's interpretation of the term(s)). (Defendant) claims that the term(s) means: (insert defendant's interpretation of the term(s)). (Claimant) must prove that [his] [her] [its] interpretation of the term(s) is correct.

In deciding what the term(s) of a contract mean, you must decide what the parties agreed to at the time the contract was created.

In order to determine what the parties agreed to, you should consider the plain and ordinary meaning of the language used in the contract as well as the circumstances surrounding the making of  [77] the contract. The agreement of the parties is determined only by what the parties said, wrote, or did. You may not consider the parties' thoughts or unspoken intentions.

Note: The following instruction should be given if the court is going to give additional instructions related to disputed term(s).

[I will now instruct you on other methods that you should use in resolving the dispute over term(s) in the contract:]

NOTE ON USE FOR 416.14

Read any of Instructions 416.15 through 416.20 (as appropriate) on tools for interpretation after reading the last bracketed sentence. The instructions on interpretation are not exhaustive and the court may give any additional instruction on interpretation applicable to the facts and circumstances  [315]  of the particular case provided it is supported by Florida law.

SOURCES AND AUTHORITIES FOR 416.14

1. The interpretation of a contract is normally a matter of law that is determined by the court. Smith v. State Farm Mut. Auto. Ins. Co., 231 So.2d 193, 194 (Fla. 1970); Strama v. Union Fidelity Life Ins. Co., 793 So.2d 1129, 1132 (Fla. 1st DCA 2001). Under certain circumstances, however, such as when the terms of a contract are ambiguous or susceptible to different  [78] interpretations, an issue of fact is presented which should be submitted to the jury. First Nat'l Bank of Lake Park v. Gay, 694 So.2d 784, 788 (Fla. 4th DCA 1997); State Farm Fire & Cas. Co. v. De Londono, 511 So.2d 604, 605 (Fla. 3d DCA 1987). "The initial determination of whether the contract term is ambiguous is a question of law for the court, and, if the facts of the case are not in dispute, the court will also be able to resolve the ambiguity as a matter of law." Strama, 793 So.2d at 1132; Ellenwood v. Southern United Life Ins. Co., 373 So.2d 392, 394 (Fla. 1st DCA 1979).

2. In Florida, an objective test is used to determine the agreement of the parties. Fivecoat v. Publix Super Markets, Inc., 928 So.2d 402, 403 (Fla. 1st DCA 2006). The agreement of the parties "is ascertained from the language used in the instrument and the objects to be accomplished ...." Rylander v. Sears Roebuck & Co., 302 So.2d 478, 479 (Fla. 3d DCA 1974); Jones v. Treasure, 984 So.2d 634, 638 (Fla. 4th DCA 2008). When determining the agreement of the parties, a court need not consider whether or not the parties reached a subjective meeting of the minds as to the terms of a contract. Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla. 1985).  [79] "The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties having meant the same thing but on their having said the same thing." Id. (quoting Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla. 1957)). Accordingly, the plain meaning of the language used by the parties controls as the best indication of the parties' agreement. SPP Real Estate (Grand Bay), Inc. v. Joseph J. Portuondo, P.A., 756 So.2d 182, 184 (Fla. 3d DCA 2000). Thus, the terms in a contract should be interpreted in accordance with their plain and ordinary meaning. Kel Homes, LLC v. Burris, 933 So.2d 699, 702 (Fla. 2d DCA 2006).

3. The norms of contractual interpretation may vary in certain areas of the law. For example, although the existence of an ambiguous contractual term typically creates an issue of fact as to the intent of the parties which should be resolved by the jury, this principle of law is not applicable to contracts between contractors and subcontractors with regard to risk-shifting provisions. Dec Elec., Inc. v. Raphael Constr. Corp., 558 So.2d 427, 428-29 (Fla. 1990). In such instances, the intention of the parties  [80] may be determined from the written contract as a matter of law because the nature of the transaction makes it appropriate for a court to resolve the apparent ambiguity. Id. "The reason is that the relationship between the parties is a common one and usually their intent will not differ from transaction to transaction, although it may be differently expressed." Id. at 429. The norms of contractual interpretation also do not apply to insurance contracts, as ambiguities are always to be construed against the insurer and in favor of coverage.

 [316]  416.15 INTERPRETATION — MEANING OF ORDINARY WORDS

You should assume that the parties intended the disputed term(s) in their contract to have their plain and ordinary meaning, unless you decide that the parties intended the disputed term(s) to have another meaning.

NOTE ON USE FOR 416.15