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Proposed standard jury instructions--contract and business cases.

The Supreme Court Committee on Standard Jury Instructions--Contract and Business Cases (the "Committee") submits the following new instructions for comment.

300 Breach Of Contract--Introduction

301 Third-Party Beneficiary

302 Contract Formation--Essential Factual Elements

303 Breach Of Contract--Essential Factual Elements

304 Oral Or Written Contract Terms

305 Implied-In-Fact Contract

307 Contract Formation--Offer

308 Contract Formation--Revocation Of Offer

309 Contract Formation--Acceptance

310 Contract Formation--Acceptance By Silence Or Conduct

313 Modification

314 Interpretation--Disputed Term(s)

315 Interpretation--Meaning Of Ordinary Words

316 Interpretation--Meaning Of Disputed Technical Or Special Words

317 Interpretation--Construction Of Contract As A Whole

318 Interpretation--Construction By Conduct

319 Interpretation--Reasonable Time

320 Interpretation--Construction Against Drafter

321 Existence Of Conditions Precedent Disputed

322 Occurrence Of Agreed Condition Precedent

The proposed instructions, including the numbering scheme, are modeled on and, where consistent with Florida law, use the language contained in the Judicial Council Of California's Civil Jury Instructions ("CACI"). The Committee wishes to acknowledge its appreciation to the Judicial Council of California, which has graciously agreed to permit the use of its CACI instructions as a model for the drafting of these instructions.

The Committee adopts the conventions and approach taken by the Supreme Court Committee on Standard Jury Instructions in Civil Cases, as quoted below:

Boldface type, brackets, parentheses, and italics are used in standard instructions to give certain directions as follows:

Boldface type identifies words that the trial judge should speak aloud to instruct the jury.

Brackets express variables or alternatives within the text that are to be spoken aloud to the jury.

Bracketed material always appears in boldface type because some or all of the enclosed words must be spoken aloud and provided as part of the instruction. The Notes on Use often provide guidance on the variables appropriate in a given circumstance.

Parentheses signify the need to insert a proper name, a specific item or element, or some other variable that must be supplied by the trial judge. For example, in the following sentence, the designations in parentheses should be replaced with the specific profession of the defendant.

Because the words within the parentheses are directional in nature and not spoken to the jury, they do not appear in boldface type. They merely serve as signals to insert names, titles, or other words that must be spoken aloud. In like manner, throughout the instructions the parties are referred to as "claimant" and "defendant," and these labels may appear in parentheses. The committee does not intend that these labels be used in the jury instructions given to the jury. The judge should name or refer to the parties in the most convenient and clear way.

Italics identify directions to the trial judge.

A Note on Use may appear immediately following an instruction to provide guidance in the use of an instruction. Where the committee determines that a charge on a particular subject does not materially assist the jury, or that the instruction is likely to be argumentative or negative, or is for other reasons inappropriate, the Note on Use will contain the committee's recommendation that no instruction be given. A Note on Use is also used by the committee to set out the committee's reasons for recommending particular treatment and to cite cases and other authorities. The committee uses only illustrative cases and avoids long lists of cases.

The Committee invites all interested persons to comment on the proposed new instructions, reproduced in full below. Comments must be received by the Committee in both hard copy and electronic format on or before July 15. All comments received will be reviewed by the Committee at its next meeting. Revisions to the proposed instructions may be made based upon comments received. Upon final approval of the instruction, the Committee will make a recommendation to the Florida Supreme Court. E-mail your comments in the format of a Word document to Manuel Farach, Committee Vice Chair, Richman Greer, P.A., at mfarach@richmangreer.com. In addition, mail a hard copy of your comments to Standard Jury Instructions Committee--Contract and Business Cases, Jodi Jennings, The Florida Bar, 651 East Jefferson Street, Tallahassee 32399-6584.

300 BREACH OF CONTRACT--INTRODUCTION

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

(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 300

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.

301 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 the parties were trying to accomplish.

NOTE ON USE FOR 301

While the Supreme Court has not directly weighed in on its applicability (but note Justice Shaw's concurrence in Metropolitan Life Insurance Co. v. McCarson, 467 So.2d 277, 280-81 (Fla. 1985)), the district courts of appeal have cited to the Restatement of Contracts (2d) [section] 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.").

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). 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.").

302 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 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 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.

NOTES ON USE FOR 302

1. 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 bracketed language only if it is an issue in the case.

2. 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 contract law such as offer, acceptance, consideration and sufficient specification of essential terms.").

3. 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.").

4. 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 he does something that he or she is not legally bound to do. Id.

5. The final element of this instruction requires an objective test. "An 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).

303 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] [That (defendant) did something which the contract prohibited [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.

NOTES ON USE FOR 303

1. Read this instruction in conjunction with Instruction 300 Breach Of Contract--Introduction. 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.

2. 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 Insurance 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 Electric Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000); Mettler 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).

3. To maintain an action for breach of contract, a claimant must first establish performance on the claimant's 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. See Hospital Mortgage Group v. First Prudential Development Corp., 411 So.2d 181 (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 America, 380 So.2d 461, 463 (Fla. 3d DCA 1980).

4. "Substantial performance is performance 'nearly equivalent to what was bargained for.'" Strategic Resources Group, 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 Development Corp. v. Quality Plastering, Inc., 247 So.2d 72, 75 (Fla. 4th DCA 1971).

5. 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).

6. "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).

304 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.

NOTES ON USE FOR 304

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

2. 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., 160 So. 878, 879 (Fla. 1935).

3. 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 (Fla. 2004).

4. "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." Industrial Medicine Publishing Co. v. Colonial Press of Miami, Inc., 181 So.2d 19 (Fla. 3d DCA 1965).

5. 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 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 1975).

6. "In order 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. See W.R. Townsend Contracting, Inc. v. Jensen Civil Construction, Inc., 728 So.2d 297 (Fla. 1st DCA 1999). Compare Carole Korn Interiors, Inc. v. Goudie, 573 So.2d 923 (Fla. 3d DCA 1990) (company that 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; that company had provided agreed services; that defendants breached contract by refusing to remit payment; and that company suffered damages). "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 employment under the same terms and conditions as with Shapiro. Further, he alleged that he suffered damages as a result of his termination." Rubenstein v. PrimedicaHealthcare, Inc., 755 So.2d 746, 748 (Fla. 4th DCA 2000).

305 IMPLIED-IN-FACT CONTRACT

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.

NOTES ON USE FOR 305[ILLUSTRATION OMITTED]

1. 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.

2. "[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 [section] 12 (2009). "In a contract implied in fact the 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. "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 [section] 3 (1964); Corbin, Corbin on Contracts [section][section] 1.18-1.20 (Joseph M. Perillo ed. 1993). Whenan agreement is arrived at by words, oral or written, the contract is said to be "express." 17 Am. Jur. 2d Contracts [section] 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 [section] 562 (1960). It is to this process of defining an enforceable agreement that Florida courts have referred when they have indicated 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 '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).

4. 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, 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; 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." Commerce Partnership 8098 Limited Partnership v. Equity Contracting Co., 695 So.2d 383, 387 (Fla. 4th DCA 1997).

307 CONTRACT FORMATION--OFFER

Both an offer and an acceptance are required to create a contract. (Defendant) contends a contract was not created because 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^] 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.

NOTES ON USE FOR 307

1. 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 claiming the plaintiff 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.

2. 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 pay an amount, usually accompanied by an expected acceptance, counteroffer, 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).

3. "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).

4. In Soccarras 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 of negotiations at that point, preliminary negotiations which never ripened into a formal agreement."

308 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 ON 308

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).

3. "A mere offer not assented to constitutes no contract, for there must be not 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).

4. "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).

5. "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).

309 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 309

1. Do not give this instruction unless the defendant has testified or offered other evidence in support of (his/her/its) contention.

2. This instruction assumes that the defendant has denied that he/she/it accepted 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).

3. 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). See also Buell v. State, 704 So.2d 552 (Fla. 4th DCA 1997) (recognizing that silence generally does not constitute acceptance).

310 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 was an acceptance.

NOTES ON USE FOR 310

1. This instruction should be read in conjunction with and immediately after instruction 309, 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.

3. Stevenson v. Stevenson, 661 So.2d 367 (Fla. 4th DCA 1995)(citing the Restatement (Second) of Contracts, [section]69 (2) and comment (e); Scocozzo v. General Development Corporation, 191 So.2d 572 (Fla. 1966).

4. 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 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.

5. An offeree's silent acceptance of benefits from the offeror constitutes acceptance. Hendricks v. Stark, 126 So. 293, 297 (Fla. 1930)("It has been repeatedly held that a person by the acceptance 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.").

313 MODIFICATION

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

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].

NOTES ON USE FOR 313

1. In St. Joe Corporation v. McIver, 875 So.2d 375, 381-382 (Fla. 2004) our supreme court said:

"It is well established that the parties to a contract can discharge or modify the contract, however made or evidenced, through a subsequent agreement."

"Whether the parties have validly modified a contract is usually a question of fact."

"A party cannot modify a contract unilaterally. All the parties whose rights or responsibilities the modification affects must consent."

The modification must be supported by proper consideration.

Under Florida law, the parties' subsequent conduct can modify the terms in a contract.

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

2. "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 ... And oral modification under these circumstances is permissible even though there was in the written contract a provision prohibiting its alteration except in writing." Professional Insurance Corp. v. Cahill, 90 So.2d 916, 918 (Fla. 1956).

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

4. "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. deKalafe, 723 So.2d 838, 841 (Fla. 3d DCA 1999).

314 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 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:]

NOTES ON USE FOR 314

1. Use with Other Instructions. Read any of the following instructions (as appropriate) on tools for interpretation (Nos. 315 through 320) after reading the last bracketed sentence. The instructions on interpretation (Nos. 315 through 320) are not exhaustive and the court may give any additional instruction on interpretation applicable to the facts and circumstances of the particular case provided it is supported by Florida law.

2. When Instruction Should be Given. 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 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).

3. Agreement of the Parties. In Florida, an objective test is used to determine the agreement of the parties. Fivecoatv. PublixSuper 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). "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. 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).

4. Norms of Contractual Interpretation. 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 Electric, Inc. v. Raphael Constr. Corp., 558 So.2d 427, 428-29 (Fla. 1990). In such instances, the intention of the parties 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. See, e.g. Travelers Ins. Co. v. Smith, 328 So.2d 870 (Fla. 3d DCA 1976).

315 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.

NOTES ON USE FOR 315

1. This principle is well established under Florida law. Hamilton Constr. Co. v. Bd. of Pub. Instruction of Dade Cnty., 65 So.2d 729 (Fla. 1953); Langley v. Owens, 42 So. 457 (Fla. 1906); Winn-Dixie Stores, Inc. v. 99 Cent Stuff-Trial Plaza, LLC, 811 So.2d 719 (Fla. 3d DCA 2002); Institutional & Supermarket Equipment, Inc v. C&SRefrigeration, Inc., 609 So.2d 66 (Fla. 4th DCA 1992); Bingemann v. Bingemann, 551 So.2d 1228 (Fla. 1st DCA 1989).

2. The term(s) "plain and ordinary" is used throughout the charge to describe the meaning of words. Plain and ordinary meaning is often described as the meaning of words as found in the dictionary. See Beans v. Chohonis, 740 So.2d 65 (Fla. 3d DCA 1999). Also, plain and ordinary meaning is the natural meaning that is most commonly understood in relation to the subject matter and circumstances of the case. See Sheldon v. Tiernan, 147 So.2d 167 (Fla. 2d DCA 1962).

3. The Committee found no distinction between the phrases "usual and customary" and "plain and ordinary" as those phrases are used in case law. The Committee chooses to use the phrase "plain and ordinary" in the instruction because the phrase is more commonly used.

316 INTERPRETATION--MEANING OF DISPUTED TECHNICAL OR SPECIAL WORDS

Disputed term(s) in the contract should be given the meaning used by people in that trade, business, or technical field unless the parties agree that the disputed term(s) should have another meaning.

NOTES ON USE FOR 316

1. Contractual terms should be construed in accordance with their plain and ordinary meaning unless the parties intended the contractual terms to have a different or special meaning. Madson v. Madson, 636 So.2d 759, 760 (Fla. 2d DCA 1994).

2. Contracts may be written in light of established custom or trade usage in an industry, and contracts involving such transactions should be interpreted in light of such custom or trade usage. The responsibility for determining trade usage is customarily one for the jury. Fred S. Conrad Construction Co. v. Exchange Bank of St. Augustine, 178 So.2d 217 (Fla. 1st DCA 1965).

3. Extrinsic evidence may be admitted to explain technical terminology even if the contract is unambiguous. NCP Lake Power, Inc. v. Florida Power Corp., 781 So.2d 531 (Fla. 5th DCA 2001).

4. A jury determines the meaning of words in contracts that are ambiguous, incomplete or use technical terms(s) of art. Russel & Axon v. Handshoe, 176 So.2d 909, 917 (Fla. 1st DCA 1965) (Sturgis, J., dissenting).

5. Evidence showing the meaning of technical terms is not an exception to the parol evidence rule because it does not vary or contradict the written instrument, but merely places the fact finder in the position of the parties when the contract was made. Southeast Banks Trust Co., N.A. v. Higginbotham Chevrolet-Oldsmobile, Inc., 445 So.2d 347, 348-39 (Fla. 5th DCA 1984).

317 INTERPRETATION--CONSTRUCTION OF CONTRACT AS A WHOLE

In deciding what the disputed term(s) of the contract mean, you should consider the whole contract, not just isolated parts. You should use each part to help you interpret the others, so that all the parts make sense when taken together.

NOTES ON USE FOR 317

1. "In reviewing the contract in an attempt to determine its true meaning, the court must review the entire contract without fragmenting any segment or portion." J.C. Penney Co., Inc. v. Koff, 345 So.2d 732, 735 (Fla. 4th DCA 1977).

2. Every provision in a contract should be given meaning and effect and apparent inconsistencies reconciled if possible. Excelsior Ins. Co. v. Pomana Park Bar & Package Store, 369 So.2d 938, 941 (Fla. 1979); Royal Am. Realty, Inc. v. Bank of Palm Beach & Trust Company, 215 So.2d 336 (Fla. 4th DCA 1968); Transport Rental Systems, Inc. v. Hertz Corp., 129 So.2d 454 (Fla. 3d DCA 1961).

3. "We rely upon the rule of construction requiring courts to read provisions of a contract harmoniously in order to give effect to all portions thereof." Sugar Cane Growers Cooperative of Fla., Inc. v. Pinnock, 735 So.2d 530, 535 (Fla. 4th DCA 1999) (holding contracts should be interpreted to give effect to all provisions); Paddock v. Bay Concrete Indus., Inc., 154 So.2d 313, 315 (Fla. 2d DCA 1963) ("All the various provisions of a contract must be so construed, if it can reasonably be done, as to give effect to each."); City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla. 2000).

318 INTERPRETATION--CONSTRUCTION BY CONDUCT

In deciding what the disputed term(s) of the contract mean, you should consider how the parties acted before and after the contract was created.

NOTE ON USE FOR 318

In the face of ambiguity on an issue, a jury is free to look at the subsequent conduct of the parties to determine the parties' intent and the contract's meaning: "Where an agreement is ambiguous, the meaning of the agreement may be ascertained by looking to the interpretation the parties have given the agreement and the parties' conduct throughout their course of dealings." Rafael J. Roca, P.A. v. Lytal, Reiter, Clark, Roca, Fountain & Williams, 856 So.2d 1, 5 (Fla. 4th DCA 2003). See also Mayflower Corp. v. Davis, 655 So.2d 1134, 1137 (Fla. 1st DCA 1994). The instruction's use of the word "should" as opposed to "may" arises out of the more mandatory language found in earlier authority upon which Roca relies. See Blackhawk Heating and Plumbing, Inc. v. Data Lease Financial Corp., 302 So.2d 404, 407 (Fla. 1974).

319 INTERPRETATION--REASONABLE TIME

If a contract does not state a specific time within which a party is to perform a requirement of the contract, then the party must perform the requirement within a reasonable time. What is a reasonable time depends on the facts of each case, including the subject matter and purpose of the contract and the expressed intent of the parties at the time they entered into the contract.

NOTES ON USE FOR 319

1. Whenever a contract fails to provide a specific time for performance, the law implies a reasonable time for performance. Patrick v. Kirkland, 43 So. 969, 971 (Fla. 1907); De Cespedes v. Bolanos, 711 So.2d 216, 218 (Fla. 3d DCA 1998); Fleming v. Burbach Radio, Inc., 377 So.2d 723, 724 (Fla. 4th DCA 1980).

2. The decision of what constitutes a reasonable time for performance is ordinarily a question of fact for the jury or fact-finder. L.P. Sims v. Am. Hardware Mut. Ins. Co., 429 So.2d 21, 22 (Fla. 2d DCA 1982).

3. The determination of what constitutes a reasonable time for performance depends on the facts of each case, such as the subject matter of the contract, the situation of the parties, and the parties' agreement when they entered into the contract. Sound City, Inc. v. Kessler, 316 So.2d 315, 317 (Fla. 1st DCA 1975). See also Cocoa Props., Inc. v. Commonwealth Land Title Ins. Co., 590 So.2d 989, 991 (Fla. 2d DCA 1991); Sharp v. Machry, 488 So.2d 133, 137 (Fla. 2d DCA 1986).

320 INTERPRETATION--CONSTRUCTION AGAINST DRAFTER

You must first attempt to determine the meaning of the ambiguous term(s) in the contract from the evidence presented and the previous instructions. If you cannot do so, only then should you consider who drafted the disputed term(s) in the contract and then construe the language against the party who drafted the ambiguous term(s).

NOTES ON USE FOR 320

1. Introduction. The existence of this interpretation principle is well established. "An ambiguous term in a contract is to be construed against the drafter." City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla. 2000). "Generally, ambiguities are construed against the drafter of the instrument." Hurt v. Leatherby Ins. Co., 380 So.2d 432, 434 (Fla. 1980). "[A] provision in a contract will be construed most strongly against the party who drafted it ..." SOL Walker & Co. v. Seaboard Coast Line R.R. Co., 362 So.2d 45, 49 (Fla. 2d DcA 1978). Where the language of contract is ambiguous or doubtful, it should be construed against the party who drew the contract and chose the wording. Vienneau v. Metropolitan Life Ins. Co. , 548 So.2d 856 (Fla. 4th DCA 1989); Am. Agronomics Corp. v. Ross, 309 So.2d 582 (Fla. 3d DCA 1975). "To the extent any ambiguity exists in the interpretation of [a] contract, it will be strictly construed against the drafter." Goodwin v. Blu Murray Ins. Agency, Inc., 939 So.2d 1098 (Fla. 5th DCA 2006); Russell v. Gill, 715 So.2d 1114 (Fla. 1st DCA 1998).

2. Drafter. If only one party drafted a contract, then the jury should consider that party to be the drafter in the context of this instruction. However, if more than one party contributed to drafting a contract, provision, or term, then the jury should consider the drafter to be the party that actually chose the wording at issue. Finberg v. Herald Fire Ins. Co., 455 So.2d 462 (Fla. 3d DCA 1984); Bacon v. Karr, 139 So.2d 166 (Fla. 2d DCA 1962). An additional tool the jury can utilize to determine who is the drafter is they can interpret the language at issue against the person who the language benefits. Belen School, Inc. v. Higgins, 462 So.2d 1151 (Fla. 4th DCA 1984); Watson v. Poe, 203 So.2d 14 (Fla. 4th DCA 1967).

3. Secondary Rule of Interpretation. This instruction endeavors to explain to the jury that this principle should be secondary to the consideration of other means of interpretation, principally the consideration of parol evidence that may explain the parties' intent at the time they entered into the contract. See W. Yellow Pine Co. v. Sinclair, 90 So. 828, 831 (Fla. 1922) (holding that the rule to construe against the drafter should not be used if other rules of construction reach the intent of the parties); The School Bd. of Broward Cnty. v. The Great Am. Ins. Co., 807 So.2d 750 (Fla. 4th DCA 2002) (stating that the rule to construe against the drafter is a secondary rule of interpretation and should be used as a last resort when all ordinary interpretive guides have been exhausted); DSL Internet Corp. v. Tigerdirect, Inc., 907 So.2d 1203, 1205 (Fla. 3d DCA 2005) (holding that the against-the-drafter rule is a rule of last resort and is inapplicable if there is evidence of the parties' intent). There is a risk that the jury may place too much emphasis on this rule, to the exclusion of evidence and other approaches; therefore, this instruction should be given with caution.

4. Contrary Contract Provision or Statute. The Committee has been unable to find case law authority applying this principle when the contract contains language stating the contract will not be interpreted against the drafter. If the contract at issue or an applicable statute provides that the contract will not be construed against the drafter, the Committee would suggest that this be taken into consideration before this instruction is used, particularly given the secondary rule of interpretation principle expressed in the preceding paragraph and established Florida law that every provision in a contract should be given meaning and effect. See Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 941 (Fla. 1979) (holding that every provision in a contract should be given meaning); see also section 542.335(1)(h), Florida Statutes (providing an example in the context of not construing a restrictive covenant against the drafter).

5. Use of Verdict Form. The Committee strongly recommends the use of this instruction in connection with a verdict form that clarifies, by special interrogatory, what the term or phrase is that the Court has declared to be ambiguous. See First Nat'l Bank of Lake Park v. Gay, 694 So.2d 784, 789 (Fla. 4th DCA 1997) (discussing that interrogatory verdict forms should track the same issues and defenses in the jury instructions).

321 EXISTENCE OF CONDITIONS PRECEDENT DISPUTED

(Defendant) claims that the contract with (claimant) provides that [he] [she] [it] was not required to (insert duty) unless (insert condition precedent).

(Defendant) must prove that the parties agreed to this condition. If (defendant) proves this, then (claimant) must prove that (insert condition precedent) [was performed] [occurred] [was waived].

If (claimant) does not prove that (insert condition precedent) [was performed] [occurred] [was waived], then (defendant) was not required to (insert duty).

NOTES ON USE FOR 321

1. This instruction should be given only where both the existence and the occurrence of a condition precedent are contested. If only the occurrence of a condition precedent is contested, use Instruction 322 Occurrence of Agreed Condition Precedent.

2. "A condition precedent is an act or event, other than a lapse of time, that must occur before a binding contract will arise .... A condition may be either a condition precedent to the formation of a contract or a condition precedent to performance under an existing contract." Mitchell v. DiMare, 936 So.2d 1178, 1180 (Fla. 5th DCA 2006).

3. "Provisions of a contract will only be considered conditions precedent or subsequent where the express wording of the disputed provision conditions formation of a contract and or performance of the contract on the completion of the conditions." Gunderson v. Sch. Dist. of Hillsborough Cnty., 937 So.2d 777, 779 (Fla. 1st DCA 2006); see also Raban v. Federal Express, 13 So.3d 140 (Fla. 1st DCA 2009).

4. In pleading, the performance or occurrence of a condition precedent may be alleged generally, but a denial of the performance or occurrence of a condition precedent shall be made specifically and with particularity. Rule 1.120(c), Fla.R.Civ.P. However, once the defendant has made a specific denial of a condition precedent to a contract, the burden reverts to the plaintiff to prove the satisfaction of the condition precedent. Griffin v. Am. Gen. Life & Accident Ins. Co., 752 So.2d 621 (Fla. 2d DCA 1999).

5. The court should define waiver as set forth in Instruction 336 Affirmative Defense--Waiver.

322 OCCURRENCE OF AGREED CONDITION PRECEDENT

The parties agreed in their contract that (defendant) would not have to (insert duty) unless (insert condition precedent). (Defendant) contends that this condition did not occur and that [he] [she] [it] did not have to (insert duty). To overcome this contention, (claimant) must prove that (insert condition precedent) [was performed] [occurred] [was waived].

If (claimant) does not prove that (insert condition precedent) [was performed] [occurred] [was waived], then (defendant) was not required to (insert duty).

NOTES ON USE FOR 322

1. If both the existence and the occurrence of a condition precedent are contested, use instruction 321.

2. In pleading, the performance or occurrence of a condition precedent may be alleged generally, but a denial of the performance or occurrence of a condition precedent shall be made specifically and with particularity. Fla.R.Civ.P. 1.120(c). When a plaintiff alleges generally the occurrence of a condition precedent, and the defendant fails to deny the occurrence with particularity, then the defendant has no right to demand proof from the plaintiff of the occurrence of such condition. See Cooke v. Ins. Co. of N. Am., 652 So.2d 1154 (Fla. 2d DCA 1995); Scarborough Assocs. v. Financial Federal Savings & Loan Ass'n of Dade Cnty., 647 So.2d 1001 (Fla. 3d DCA 1994). However, once the defendant has made a specific denial of a condition precedent to a contract, the burden reverts to the plaintiff to prove the satisfaction of the condition precedent. Griffin v. Am. Gen. Life & Accident Ins. Co., 752 So.2d 621 n.1 (Fla. 2d DCA 1999).

3. The court should define waiver as set forth in Instruction 336 Affirmative Defense--Waiver.
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