          Supreme Court of Florida
                                   ____________

                                  No. SC18-1672
                                  ____________


   IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES AND
  STANDARD JURY INSTRUCTIONS IN CONTRACT AND BUSINESS
               CASES—JOINT REPORT NO. 18-01.

                                December 20, 2018

PER CURIAM.

      The Supreme Court Committee on Standard Jury Instructions in Civil Cases

and the Supreme Court Committee on Standard Jury Instructions in Contract and

Business Cases (Committees) have submitted proposed new standard jury

instructions and ask that the Court authorize the standard instructions for

publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

      The Committees propose the following new instructions pertaining to

Fiduciary Duty under section 451 of the respective standard jury instructions in

civil cases and in contract and business cases: 451.1 (Introduction); 451.2

(Summary of Claims or Contentions); 451.3 (Greater Weight of the Evidence);

451.4 (Existence of Fiduciary Duty Disputed); 451.5 (Breach of Fiduciary Duty);

451.6 (Legal Cause); 451.7 (Preemptive Charges); 451.8 (Preliminary Issue -
Vicarious Liability); 451.9 (Burden of Proof on Preliminary Issues); 451.10 (Issues

on Main Claim); 451.11 (Burden of Proof on Main Claim); 451.12 (Defense

Issues); and 451.13 (Burden of Proof on Defense Issues). The full set of numbered

instructions was published in the January 1, 2018, issue of The Florida Bar News.

No comments were received.

      Having considered the Committees’ joint report, the new jury instructions,

as set forth in the appendix to this opinion, are hereby authorized for publication

and use. New language is indicated by underlining. In authorizing the publication

and use of these instructions, we express no opinion on their correctness and

remind all interested parties that this authorization forecloses neither requesting

additional or alternative instructions nor contesting the legal correctness of the

instructions. We further caution all interested parties that any Notes on Use or

Sources and Authorities associated with the instructions reflect only the opinion of

the respective Committees 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 shall be effective when this opinion becomes final.

      It is so ordered.

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

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION
FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE
                                         -2-
JANUARY 2, 2019. NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO
FILE A REHEARING/CLARIFICATION MOTION AND, IF FILED,
DETERMINED.

Original Proceeding – Supreme Court Committee on Standard Jury Instructions —
Civil Cases and Contract and Business Cases

Honorable Paul Lee Huey, Chair, Supreme Court Committee on Standard Jury
Instructions in Contract and Business Cases, Tampa, Florida; Laura K. Whitmore,
Chair, Tampa, Florida, Jeffrey Alan Cohen, Vice Chair and Subcommittee Chair,
Miami, Florida, and Honorable Stephanie W. Ray, Member, Supreme Court
Committee on Standard Jury Instructions in Civil Cases, Tallahassee, Florida; and
Joshua E. Doyle, Executive Director, Mikalla Andies Davis and Heather Savage
Telfer, Bar Liaisons, The Florida Bar, Tallahassee, Florida,

      for Petitioner




                                       -3-
                           APPENDIX



              SECTION 451 — FIDUCIARY DUTY



451.1 Introduction

451.2 Summary of Claims or Contentions

451.3 Greater Weight of the Evidence

451.4 Existence of Fiduciary Duty Disputed

451.5 Breach of Fiduciary Duty

451.6 Legal Cause

451.7 Preemptive Charges

451.8 Preliminary Issue — Vicarious Liability

451.9 Burden of Proof on Preliminary Issues

451.10 Issues on Main Claim

451.11 Burden of Proof on Main Claim

451.12 Defense Issues

451.13 Burden of Proof on Defense Issues




                                 -4-
                             451.1 INTRODUCTION

       Members of the jury, you have now heard and received all of the
evidence in this case. I am now going to tell you about the rules of law that you
must use in reaching your verdict. [You will recall at the beginning of the case
I told you that if, at the end of the case I decided that different law applies, I
would tell you so. These instructions are (slightly) different from what I gave
you at the beginning and it is these rules of law that you must now follow.]
When I finish telling you about the rules of law, the attorneys will present
their final arguments and you will then retire to decide your verdict.

                           NOTES ON USE FOR 451.1

       1.     When instructing the jury before taking evidence, use instruction
202.1 in lieu of instruction 451.1. See Model Instruction No. 1. Instruction 451.1 is
for instructing the jury after the evidence has been concluded. Use the bracketed
language in instruction 451.1 when the final instructions are different from the
instructions given at the beginning of the case. If the instructions at the end of the
case are different from those given at the beginning of the case, the committee
recommends that the court point out the differences with appropriate language in
the final instructions, including an explanation for the difference, such as where the
court has directed a verdict on an issue.

       2.     Florida Rule of Civil Procedure 1.470(b) authorizes instructing the
jury during trial or before or after final argument. The timing of instructions is
within the sound discretion of the trial judge, to be determined on a case-by-case
basis, but the committee strongly recommends instructing the jury before final
argument.

       3.    Each juror must be provided with a full set of jury instructions for use
during their deliberations. Fla.R.Civ.P. 1.470(b). The trial judge may find it useful
to provide these instructions to the jurors when the judge reads the instructions in
open court so that jurors can read along with the judge, as the judge reads the
instructions aloud.




                                        -5-
            451.2 SUMMARY OF CLAIMS OR CONTENTIONS

       The claims [and defenses] in this case are as follows. (Claimant) claims
that (defendant) owed a fiduciary duty to [him][her], that (defendant) failed to
protect (claimant’s) [financial interests] [property interests] [secrets]
[confidences] [private information] [used such information to the detriment of
claimant], and that this [failure] [use] caused harm to (claimant).

      (Defendant) denies that claim [and also claims that (describe any
affirmative defenses)].

       The parties must prove all claims [and defenses] by the greater weight
of the evidence. I will now define some of the terms you will use in deciding
this case.




              451.3 GREATER WEIGHT OF THE EVIDENCE

      “Greater weight of the evidence” means the more persuasive and
convincing force and effect of the entire evidence in the case.

                           NOTES ON USE FOR 451.3

       1.     Greater or lesser number of witnesses. The committee recommends
that no instruction be given regarding the relationship (or lack of relationship)
between the greater weight of the evidence and the greater or lesser number of
witnesses.

       2.    Circumstantial evidence. The committee recommends that no
instruction generally be given distinguishing circumstantial from direct evidence.
See Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960).




                                        -6-
            451.4 EXISTENCE OF FIDUCIARY DUTY DISPUTED

        (Claimant) claims that (defendant) owed a fiduciary duty to [him] [her]
[it].

        To prove a fiduciary duty existed, (claimant) must prove the following:

      A relationship existed between (claimant) and (defendant) in which
(claimant) put [his] [her] [its] trust in (defendant) to protect (claimant’s)
[financial or property interests] [secrets] [confidences] [private information]
and (defendant) accepted that trust.

                            NOTES ON USE FOR 451.4

      1.     This instruction should not be read if the defendant admits the
existence of a common law or statutory fiduciary duty. If the defendant admits the
existence of such a duty, the preemptive charge at instruction 451.7a should be
given instead.

        2.    These instructions address cases in which a breach of fiduciary duty
creates a jury issue. But see King Mountain Condominium Ass’n v. Gundlach, 425
So. 2d 569 (Fla. 4th DCA 1982) (holding that a plaintiff seeking purely equitable
relief for breach of fiduciary duty is not entitled to a jury trial).

     3.      The committee recognizes that claims for breach of fiduciary duty
may arise in different circumstances in addition to those listed above. See Doe v.
Evans, 814 So. 2d 370 (Fla. 2002).

                          SOURCES AND AUTHORITIES

       1.    The Florida Supreme Court has characterized a fiduciary relationship
in the following manner:

        The relation and duties involved need not be legal; they may be moral,
        social, domestic or personal. If a relation of trust and confidence exists
        between the parties (that is to say, where confidence is reposed by one party
        and trust accepted by the other, or where confidence has been acquired and
        abused), that is sufficient as a predicate for relief. The origin of the
        confidence is immaterial.



                                         -7-
Doe v. Evans, 814 So. 2d 370, 374 (Fla. 2002) (quoting Quinn v. Phipps, 93 Fla.
805, 113 So. 419, 421 (Fla. 1927)).

       2.    “A fiduciary relationship may be implied by law, and such
relationships are ‘premised upon the specific factual situation surrounding the
transaction and the relationship of the parties.’” Doe v. Evans, 814 So. 2d 370, 374
(Fla. 2002) (quoting Capital Bank v. MVB, Inc., 644 So. 2d 515, 518 (Fla. 3d DCA
1994)).




                   451.5 BREACH OF FIDUCIARY DUTY

       (Claimant) claims that (defendant) breached a fiduciary duty [he] [she]
[it] owed to (claimant) and was damaged as a result.

      You must decide whether (defendant) breached a fiduciary duty to
(claimant) and whether the breach was a legal cause of damages.

      A breach of a fiduciary duty occurs when (defendant) failed to act [with
the utmost good faith, fairness, and honesty] [with the highest and finest
loyalty] and:

      a.     failed to protect (claimant’s) financial or property interests; or

      b.   failed to protect (claimant’s) [secrets] [confidences] [private
information]; or

      c.     used such information to the detriment of (claimant)

      and breach of the fiduciary duty is a legal cause of damage to (claimant).

                           NOTES ON USE FOR 451.5

       1.    These instructions have been prepared to cover many of the
circumstances under which fiduciary duties have been held to arise. Courts have
described the standard for a fiduciary’s duty as being “the finest and highest
loyalty,” Donahue v. Davis, 68 So. 2d 163 (Fla. 1953), and “utmost good faith,
                                        -8-
fairness and honesty,” Gossett v. St. Paul Fire and Marine Insurance Co., 427 So.
2d 386, 387 (Fla. 4th DCA 1983). The choice of the particular standard or
standards will depend on the circumstances that give rise to the fiduciary duty.
Other standards not listed in this instruction may apply.

      2.    A breach of fiduciary duty can be negligent or intentional. Palafrugell
Holdings, Inc. v. Cassel, 825 So. 2d 937, 939 n.1 (Fla. 3d DCA 2001).

      3.     As the facts dictate, appropriate defense instructions may be
necessary.

       4.    In the appropriate case, the court should consider whether to give
instructions on concurring or intervening cause.




                               451.6 LEGAL CAUSE

a.    Legal cause generally:

      Breach of a fiduciary duty is a legal cause of [loss] [injury] [or]
      [damage] if it directly and in natural and continuous sequence produces
      or contributes substantially to producing such [loss] [injury] [or]
      [damage], so that it can reasonably be said that, but for the breach of
      fiduciary duty, the [loss] [injury] [or] [damage] would not have
      occurred.

b.    Concurring cause:

      In order to be regarded as a legal cause of [loss] [injury] [or] [damage] a
      breach of the fiduciary duty need not be the only cause. A breach of a
      fiduciary duty may be a legal cause of [loss] [injury] [or] [damage] even
      though it operates in combination with [the act of another] [some
      natural cause] [or] [some other cause] if the breach of fiduciary duty
      contributes substantially to producing such [loss] [injury] [or]
      [damage].


                                        -9-
c.    Intervening cause:

      Do not use the bracketed first sentence if this instruction is preceded by the
      instruction on concurring cause:*

      *[In order to be regarded as a legal cause of [loss] [injury] [or]
      [damage], breach of fiduciary duty need not be its only cause.] Breach
      of fiduciary duty may also be a legal cause of [loss] [injury] [or]
      [damage] even though it operates in combination with [the act of
      another] [some natural cause] [or] [some other cause] occurring after
      the breach of fiduciary duty occurs if [such other cause was itself
      reasonably foreseeable and the breach of fiduciary duty contributes
      substantially to producing such [loss] [injury] [or] [damage]] [or] [the
      resulting [loss] [injury] [or] [damage] was a reasonably foreseeable
      consequence of the breach of fiduciary duty and the breach of fiduciary
      duty contributes substantially to producing it].




                       451.7 PREEMPTIVE CHARGES

      The court has determined and now instructs you that:

a.    Existence of a fiduciary duty:

      A relationship existed between (claimant) and (defendant) in which
      (claimant) put [his] [her] [its] trust in (defendant) to protect (claimant’s)
      [financial or property interests] [secrets] [confidences] [private
      information] and (defendant) accepted that trust.

      (Skip to instructions on breach of fiduciary duty (451.5), legal cause (451.6),
      and damages (section 500).)

                           NOTES ON USE FOR 451.7a

      1.     This preemptive charge should be given only when the defendant
admits or stipulates, or the court has ruled as matter of law, that a common law or

                                       - 10 -
statutory fiduciary duty exists between the claimant and the defendant. Otherwise,
instruction 451.4 should be given.

       2.     The Committee takes no position on whether all the types of damages
specified in section 500 are awardable for a breach of fiduciary duty claim.

b.    Directed verdict on liability:

      (Defendant) breached a fiduciary duty and that breach was a legal cause
      of [loss] [injury] [or] [damage] to (claimant). (Claimant) is therefore
      entitled to recover from (defendant) for the [loss] [injury] [or] [damage]
      as is shown by the greater weight of the evidence to have thus been
      caused by (defendant).

      (Skip to instructions on damages (section 500).)

                           NOTE ON USE FOR 451.7b

      This charge should be given only when the defendant admits or stipulates, or
the court has ruled a matter of law, that the defendant has breached a fiduciary duty
and that breach is a legal cause of damages to the plaintiff. Otherwise, instructions
451.5 and 451.6 should be given.




         451.8 PRELIMINARY ISSUE — VICARIOUS LIABILITY



                            NOTE ON USE FOR 451.8

       At this time, the Committee does not propose a standard instruction on
preliminary issues in a breach of fiduciary duty case. A special instruction on
vicarious liability may be considered. See Testa v. S. Escrow & Title, LLC, 36 So.
3d 713, 715 (Fla. 1st DCA 2010) (noting the possibility of pleading a claim for
vicarious liability for breach of fiduciary duty).


                                       - 11 -
            451.9 BURDEN OF PROOF ON PRELIMINARY ISSUES

      If the greater weight of the evidence does not support (claimant’s) claim
on [this issue] [these issues], that (describe preliminary issue), then your verdict
on the claim of (claimant) *[because of the claimed breach of fiduciary duty by
(name)] should be for (defendant).

       If, however, the greater weight of the evidence supports (claimant’s)
claim on [this issue] [these issues], that (describe preliminary issue), then you
shall consider the other issues on (claimant’s) claim.

                            NOTES ON USE FOR 451.9

       1.    Give instruction 451.9 if instructing the jury on any preliminary
issues.

      2.     If there are multiple defendants, this instruction will have to be
modified to account for the issues related to each defendant.

      3.     *There is no need to give that portion of the charge contained within
brackets unless the claimant makes multiple claims involving other defendants. In
such a case it is necessary to distinguish this claim from claims against other
defendants.




                       451.10 ISSUES ON MAIN CLAIM

      The [next] issues you must decide on (claimant’s) claim against
(defendant) are:

a.    Breach of fiduciary duty:

      whether (defendant) breached a fiduciary duty by (describe conduct in
      question), and, if so, whether that breach was a legal cause of [loss]
      [injury] [or] [damage] to (claimant, decedent, or person for whose injury
      claim is made).

                                        - 12 -
b.    Breach of fiduciary duty by multiple defendants:

      whether (defendant) or (defendant) breached a fiduciary duty or whether
      both breached a fiduciary duty in (describe alleged breach of fiduciary
      duty) and, if so, whether that breach was a legal cause of [loss] [injury]
      [or] [damage] to (claimant, decedent, or person for whose injury claim is
      made).

                            NOTE ON USE FOR 451.10

       “The elements of a claim for breach of fiduciary duty are: the existence of a
fiduciary duty, and the breach of that duty such that it is the proximate cause of the
plaintiff’s damages.” Gracey v. Eaker, 837 So. 2d 348, 353 (Fla. 2002).




                451.11 BURDEN OF PROOF ON MAIN CLAIM

      If the greater weight of the evidence does not support [one or more of]
(claimant’s) claim[s], your verdict should be for (defendant) [on [that] [those]
claim[s]].

       [However, if the greater weight of the evidence supports [one or more
of] (claimant’s) claim[s], then your verdict should be for (claimant) and against
(defendant) [on [that] [those] claim[s]].]

                            NOTES ON USE FOR 451.11

       1.     Use the first paragraph in all cases. If there is an affirmative defense
to the claim that is the subject of the charge, do not use the bracketed paragraph;
instead, use instruction 451.12.

      2.     The Committee takes no position on whether a comparative
negligence instruction would be appropriate.




                                         - 13 -
                           451.12 DEFENSE ISSUES

      If, however, the greater weight of the evidence supports [(claimant’s)
claim] [one or more of (claimant’s) claims], then you shall consider the
defense(s) raised by (defendant).

      On the [first]* defense, the issue(s) for you to decide [is] [are]:

      [Insert any special instructions on defense issues]

                           NOTE ON USE FOR 451.12

       At this time, the Committee does not propose standard instructions on any
particular defenses that may be raised.




             451.13 BURDEN OF PROOF ON DEFENSE ISSUES

      If the greater weight of the evidence does not support (defendant’s)
defense[s] of (describe defense) and the greater weight of the evidence supports
(claimant’s) claim, then [your verdict should be for (claimant) in the total
amount of [his] [her] damages].

                           NOTES ON USE FOR 451.13

       1.    Preemptive charges on defense issues. If a preemptive charge for
claimant is appropriate on a defense issue, an instruction in the form of 451.7
should be given immediately following instruction 451.11. If a preemptive charge
for defendant is required on some aspect of a defense, a preemptive charge
announcing the ruling should be given immediately after framing the applicable
defense issue.

       2.    Charges on issues raised by replies to affirmative defenses. Plaintiff
bears the burden of proof on issues raised by any replies to affirmative defenses,
and instruction 451.13 should be modified as appropriate for those issues.


                                       - 14 -
