Free Proposed Jury Instructions - District Court of Colorado - Colorado

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INSTRUCTION NO. __ Introduction to UMM' Claims1 s UMM claims that it is entitled to recover damages from Big-D on two theories: 1. Big-D breached the subcontract. 2. Big-D abandoned the subcontract. UMM additionally claims it is entitled to recover damages from Federal Insurance Company pursuant to the Mechanic' Lien Release Bond. s Big-D and Federal Insurance Company dispute these claims. I will now instruct you on the law as it applies to UMM' claims. s

1

Introduction

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INSTRUCTION NO. __ Breach of Subcontract ­ Essential Factual Elements2 UMM claims that it entered into a written subcontract with Defendant Big-D to provide the necessary labor, equipment and materials to install various mechanical systems that were included in Bid Package #4. UMM claims that Big-D breached this subcontract in various ways including: a. Misrepresenting the true nature of the status of the project, including the status of

the construction schedule and the status of designs and plans for work to be performed by others; b. c. d. e. Failed to negotiate UMM' bids for changed work in good faith; s Failed to pay for completed work; Failed to pay extended and field general conditions costs; Issued numerous change orders that materially affected UMM' ability to perform s

the work and that resulted in a different or altered project than the one UMM bid on; f. Issued significant and material change orders that resulted in a different or altered

project than the one UMM bid on; g. h. i. j. k. Interfered, hindered and/or prevented UMM' performance of its work; s Failed to act in good faith and deal fairly with UMM; Failed to grant reasonable requests for additional time to complete UMM' work; s Failed to provide complete and accurate information given to it by Leprino; Failed to timely issue, or cause to be issued, AFEs and Owner Change Orders in

response to UMM' bids; s
2

Judicial Council of California, Civil Jury instructions (CACI) No. 300

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l. m. n.

Improperly withheld monies due to UMM as backcharges; Failed to advise of potential errors in UMM' bid. s Failed to comply with any of the subcontract terms.

UMM claims that Big-D' breaches of the written subcontract caused harm to UMM, for s which Big-D should pay UMM damages. Big-D denies that it breached the written subcontract, and also asserts a number of affirmative defenses that I will instruct you on shortly.

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INSTRUCTION NO. __ Breach of Contract ­ Essential Factual Elements3

To recover damages from Big D for breach of contract, UMM must prove by a preponderance of the evidence all of the facts necessary to establish the following: 1. 2. That UMM and Big D entered into a contract; That UMM did all, or substantially all, of the significant things that the contract

required it to do or that it was excused from having to do those things; 3. 4. That all conditions required for Big D's performance had occurred; That Big D did something the contract did not permit or failed to do something

that the contract required it to do; and 5. That UMM was harmed by that action or omission.

3

CACI No. 303

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INSTRUCTION NO. __ Breach of Covenant of Good Faith and Fair Dealing ­ Essential Factual Elements4 In every subcontract or agreement there is an implied promise of good faith and fair dealing. This means that each party will not do anything to unfairly interfere with the right of any other party to receive the benefits of the subcontract; however, the implied promise of good faith and fair dealing cannot create obligations that are inconsistent with the terms of the subcontract. Breach of a specific contractual provision is not necessary to establish breach of the implied promise. UMM claims that Big-D violated the duty to act fairly and in good faith. To establish this claim, UMM must prove all of the following: 1. 2. That UMM and Big-D entered into a subcontract; That UMM did all, or substantially all of the significant things that the

subcontract required it to do or that it was excused from having to do those things; 3. 4. That all conditions required for Big-D' performance had occurred; s That Big-D unfairly interfered with UMM' right to receive the benefits of the s

subcontract; and 5. That UMM was harmed by Big-D' conduct. s

CACI 325 (mod.); Stacy & Whitbeck, Inc. v. City and County of San Francisco, 36 Cal.App.4th 1074, 1085 (1995) citing Carma Developers, Inc. v. Marathon Development California, Inc., 2 Cal.4th 342, 373 (1992).
4

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INSTRUCTION NO. __ Breach of Implied Warranty of Contract Documents5 UMM claims that Big-D breached the contract by providing inaccurate and misleading contract plans, specifications, and/or project schedule. A party to a contract has an obligation to fairly and reasonably represent known conditions and must not conceal conditions that would have a material effect on a contractor' or s subcontractor' bid. Where the plans and specifications induce a contractor or subcontractor s reasonably to believe that certain indicated conditions actually exist and may be relied upon in submitting a bid, it is entitled to recover the value of such extra work as was necessitated by the conditions being other than as represented. Proof of affirmative fraudulent intention on the part of the party is not necessary as a breach of the implied warranty of plans and specifications can occur by demonstrating nondisclosure of information, combined with a statement of facts likely to mislead. In order for UMM to recover damages for this alleged conduct, UMM has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the following: 1. That Big-D provided UMM with contract plans, specifications and/or a schedule for the project; 2. That UMM relied on the contract plans, specifications and schedule; 3. That the lack of full, complete and/or accurate contract plans, specifications and schedule was the legal cause of damages to UMM; and 4. The amount of UMM' damages. s

Gogo v. Los Angeles County Flood Control Distr., 45 Cal.App.2d 334, 341 (1941) Howard Contracting, Inc. v. G.A. McDonald Construction Co., 71 Cal.App.4th 38, 55-57 (1998) Welch v. State of California, 139 Cal.App.3d 546, 551-552 (1983) Mathew Bender, California Forms of Jury Instruction (2004) (MB) 300I.35 (mod.)

5

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INSTRUCTION NO. __ Misrepresentation of Facts6 UMM claims that before the contract was entered into, and during the project, Big-D made representations of fact that were inaccurate and misleading and/or concealed information that made the representations inaccurate and misleading and that such conduct was a breach of the contract. Big-D disputes that claim. In order for UMM to recover damages for this alleged conduct, UMM has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the following: 1. That Big-D made representations to UMM concerning the project; and a. Big-D failed to disclose facts that materially qualified the facts that were disclosed; b. Big-D failed to disclose other material facts, the absence of which made the facts disclosed likely to mislead UMM; c. Big-D failed to disclose other material facts that were known or accessible only to Big-D and/or LFC, and that Big-D knew were not known by UMM, nor reasonably discoverable by UMM; or d. Big-D failed to disclose other material facts and actively concealed those facts from UMM; 2. The UMM relied on the representations made by Big-D; 3. That the lack of the other facts was a legal cause of the damages to UMM; and 4. The amount of UMM' damages. s

6

MB 300I.34 (mod.)

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INSTRUCTION NO. __ Interference with Contract7 UMM claims that Big-D prevented or hindered UMM from performing under the contract as it had anticipated when it submitted its bid and that such conduct was a breach of the contract. Big-D disputes that claim. In order for UMM to recover damages as a result of this alleged conduct, UMM has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the following: 1. That Big-D prevented or hindered UMM' performance of the contract; s 2. That the prevention of performance or hindering of performance was the legal cause of UMM' damages; and s 3. The amount of UMM' damages. s

7

MB 300I.33

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INSTRUCTION NO. __ Extra Work8 UMM claims that it was required to perform work in addition to the Scope of Work agreed to by UMM and Big-D in the Subcontract and that it was not paid for that work. UMM claims that the failure to pay for the extra work is a breach of the contract. Big-D disputes that contention. In order for UMM to recover these damages, UMM has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the following: 1. That Big-D required UMM to provide labor, services, equipment, or materials of a character not required for the performance of the contract; and a. That the labor, services, equipment or materials were not contemplated by the parties at the time of contracting; or b. That the labor, services, equipment or materials was more work than was required by the contract; 2. That UMM provided the labor, materials, equipment or materials; 3. That the provision of the labor, services, equipment or materials was a legal cause of damages to UMM; and 4. The amount of UMM' damages. s

8

MB 300I.30 (mod.)

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INSTRUCTION NO. __ Extra Work [Alternate]9 UMM seeks compensation for certain extra work it claims to have performed. In the construction industry, "extra work" is work that falls outside the scope of work in the original subcontract between the parties. The subcontract in this case contains a provision allowing Big-D to issue written change orders during the subcontract performance to change contract requirements without being in breach of the subcontract. In general, a subcontractor' right to compensation for extra work is s determined by basic principles of whether a contract for the extra work was formed. If UMM is seeking compensation for what it claims to be additional work, but you find that the existing subcontract between UMM and Big-D already compels UMM to perform that work, then UMM is not entitled to additional compensation. Moreover, if you find that the work performed by UMM was performed without Big-D' request or authorization and that Big-D has not agreed to s pay for that work, then UMM is not entitled to additional compensation. If however you find that that Big-D has requested or authorized the extra work, then that request or authorization constitutes an enforceable contract in and of itself, which entitles UMM to additional compensation. UMM has the burden to prove that the extra work was outside the scope of the original subcontract, was ordered at the direction of Big-D, was agreed to be paid for by Big-D either by words or by conduct, was not voluntarily furnished by UMM, and was not rendered necessary by any fault of UMM.

9

ABA Model Jury Instructions, Construction Litigation (ABA Model) 5.04

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INSTRUCTION NO. __ Abandonment10 UMM contends that Big-D abandoned the subcontract. Big-D disputes that contention. An abandonment of a construction contract may occur where the parties cease to follow the contract' change order process, when an excessive number of change orders are imposed s upon a contractor or subcontractor, where the scope of the work undertaken greatly exceeds that called for under the original contract or subcontract, where the final project becomes materially different from the project contracted for or where changes interrupt the orderly progress of the work increasing the subcontractor' cost and forcing it to work under disadvantageous s circumstances. In such a case, the entire contract including, but not limited to, its notice, documentation, changes, and cost provisions are deemed inapplicable or abandoned. A party claiming that a contract has been abandoned is not required to prove that the changes result in an entirely different end product. The extent of the alteration in the work, rather than the nature of the final construction product, is the relevant consideration in determining whether changes constitute an abandonment of a construction project. If you find that Big-D has abandoned the subcontract with UMM, UMM may recover the reasonable value for all of its work on the project, less amounts already paid to it.

Amelco Electric v. City of Thousand Oaks, 27 Cal.4th 220, 239 (2002) C. Norman Peterson Co. v. Container Corp., 172 Cal.App.3d 628, 640 (1985) Daugherty Co. v. Kimberly-Clark Corp., 14 Cal.App.3d 157, 156 (1971) Opdyke & Butler v. Silver, 111 Cal.App.2d 912, 917-918 (1952) MB 300I.31

10

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INSTRUCTION NO. __ Mechanic' Lien Release Bond11 s UMM claims it is entitled to recover damages from Federal Insurance Company pursuant to the Release of Mechanic' Lien Bond. Big-D and Federal dispute that contention. s If you find that: 1. UMM was a subcontractor that performed or provided labor, services, equipment and/or materials to the project; 2. UMM gave a preliminary 20 day notice to LFC within 20 days of the date on which UMM furnished the first labor, services, equipment or materials for which it is now making a claim; 3. UMM timely recorded a Mechanic' Lien against the work of improvement and project s property within 90 days after the completion of its work; 4. Federal Insurance Company issued a Release of Mechanic' Lien Bond ­ Private Work s for the value of the UMM' Mechanic' Lien; s s 5. Big-D recorded Federal Insurance Company' Release of Mechanic' Lien Bond ­ s s Private Work; and 6. Big-D has not paid UMM the reasonable value of its labor, services, equipment and materials furnished to the project that it is entitled to, then you shall find for UMM, and against Federal Insurance Company, for the reasonable value of UMM' labor, services, equipment and materials so provided. s

11

Civ. Code §§ 3097, 3104, 3110, 3114, 3123, 3143 MB 300I.07 (mod.), 300I.105 (mod.)

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INSTRUCTION NO. __ Timing on Recording a Claim of Mechanic' Lien12 s In order for a subcontractor to have a valid claim of mechanic' lien, the subcontractor s must record his claim of lien after he has ceased furnishing labor, services, equipment, or materials, and before the expiration of (a) 90 days after completion of the work of improvement if no notice of completion or cessation has been recorded, or (b) 30 days after recordation of a notice of completion or notice of cessation. A subcontractor ceases furnishing labor, services, equipment or materials for purposes of the time when the lien may be recorded when it has achieved substantial completion of its work and the time is not extended by making repairs of slight value or importance.

Cal. Civil Code § 3116; In re Showplace Square Loft Co. 289 B.R. 403, 409 (N.D. Cal. 2003) citing Mott v. Wright, 43 Cal.App. 21 (1919), Hammond Lumber Co. v. Yeagar, 185 Cal. 355 (1921), Grettenberg v. Collman, 119 Cal.App. 7 (1931).

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INSTRUCTION NO. __ Introduction to Subcontract Damages13 If you decide that UMM has proved its claim against Big-D for breach of the subcontract, you must also decide how much money will reasonably compensate UMM for the harm. This compensation is called "damages." The purpose of such damages is to put UMM in as good a position as it would have been if Big-D had performed as promised. To recover damages for any harm, UMM must prove: 1. That the harm was likely to arise in the ordinary course of events from the breach

of the subcontract; or 2. That when the subcontract was made, both parties could have reasonably foreseen

the harm as the probable result of the breach. UMM must prove the amount of its damages according to the following instructions. It does not have to prove the exact amount of damages. But you must not speculate or guess in awarding damages. UMM claims that the damages caused by Big-D include: a. b. The cost of performing work that has not be paid; The costs resulting from delays, inefficiencies, productivity losses and/or

acceleration costs; c. d. e. f. g.
13

Improper backcharges assessed by Big-D; Extended and increased field office overhead; Unabsorbed or unallocated home office overhead; Interest on late progress payments Interest on late retention payment

CACI 350

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INSTRUCTION NO. __ Alternate Methods for Determining Damages14 In this case, there is more than one possible method for determining the amount of damages that is necessary to compensate UMM. You should use the method that you find produces the most accurate and certain result. However, if you find that either of the two methods produces a result that is certain and accurate and that will fully compensate UMM, you should use the method that produces the lowest amount of damages.

14

MB 300E.10

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INSTRUCTION NO. __ Damages ­ Reasonable Certainty15 In awarding compensatory damages, if you decide to award them, you must be guided by dispassionate common sense. Computing damages may be difficult, but you must not let that difficulty lead you to engage in arbitrary guesswork. On the other hand, UMM is not required to prove its damages with mathematical certainty; rather it need only prove a sufficient basis for estimating the damages with reasonable certainty. Difficulty in ascertaining the amount of damages is not to be confused with the right of recovery. If UMM has produced the best evidence available and it is sufficient to support a reasonable basis for estimating its loss, UMM is not to be denied recovery because the amount of the damages is incapable of exact ascertainment. In all instances, you are to use sound discretion in fixing an award of damages, if any, drawing reasonable inferences where you deem appropriate from the facts and circumstances in evidence.

15

ABA Model 10.03

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INSTRUCTION NO. __ Mitigation of Damages16 The rule that a person injured by a breach of contract should attempt to avoid or minimize the resulting harm or loss does not require that person to make expenditures or to incur debts that are beyond its financial means. Therefore, the fact that UMM could have avoided or minimized a loss or harm resulting from a breach of contract by making reasonable expenditures or incurring reasonable debts does not prevent UMM from recovering damages for that loss or harm if you find that the expenditures or debts were beyond UMM' financial means. s

16

MB 300E.15

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INSTRUCTION NO. __ Damages ­ Delays, Inefficiencies, Productivity Losses, and Acceleration17 If, under the court' instructions, you find that UMM is entitled to a verdict against Big-D s for breach of contract as a result of delays, inefficiencies, productivity losses and/or acceleration costs caused by Big-D and/or LFC, then you must determine those damages that are legally caused by such conduct if: 1. The breach was substantial factor in bringing about the damages; and 2. Either: a. The type of damage for delays, inefficiencies, productivity losses and/or acceleration of the work could have been reasonably contemplated or foreseen by the parties, at the time they made the contract, as being the probable result of such a breach; or b. The party who breached the contract knew or should have known, at the time of entering into the contract, that this type of damage for delays, inefficiencies and productivity losses, and/or acceleration of the work could probably be suffered by the other party if it breached the contract. Then you must award damages to UMM in an amount that will compensate UMM for all detriment legally caused by the breach of contract, including all of the following: 1. Expenditures UMM made for labor, services, equipment, or materials which UMM would not otherwise have made but for the delays, inefficiencies, productivity losses, and/or acceleration caused by Big-D' breach of the contract; s 2. Increased and extended field office overhead;

17

MB 300I.104 (mod.)

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3. Increases in the cost of items already required under the contract, or required by the extra or delayed work including, but not limited to, the increased cost of labor, services, equipment and materials; and 4. Unabsorbed and unallocated home office overhead. I will give you further instructions on this category of damages.

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INSTRUCTION NO. __ Backcharges18 You have heard evidence of backcharges being assessed against UMM by Big-D. UMM claims the backcharges were improper under the contract and seeks the recovery of the amounts assessed against it. Big-D disputes this contention. In order to recover these amounts from Big-D as damages, UMM has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the following: 1. Backcharges were assessed against it by Big-D for work performed on the project; 2. Such backcharges are improper under the terms of the contract; 3. The amount of the improperly assessed backcharges.

18

Contract

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INSTRUCTION NO. __ Home Office Overhead Damages19 UMM contends that it incurred as damages a portion of home office overhead costs as a result of the delays to the project caused by Big-D. Big-D disputes that it has caused any such delays and that UMM suffered any such damages. Home office overhead costs generally include company business costs incurred by a contractor for the benefit of all projects and work in progress including such expenses as executive and administrative salaries, home office rent and expenses, home office utilities, equipment, and like expenses. Determining the amount of recoverable home office overhead generally requires three steps: 1. Multiple the total overhead cost incurred during the contract period by the ratio of billings from the delayed contract to total billings of the contractor during the contract period to find the allocable contract overhead rate; 2. Divide the allocable overhead rate by the number of days of contract performance to find the daily contract overhead rate; and 3. Multiply the number of days of delay by the daily contract rate overhead to determine the amount recoverable. If you find that UMM is entitled to recover such damages, you are instructed that the amount of such damages need not be calculated with precision. UMM is only required to prove

Eichleay Corp., ASBCA No. 5183, 60-2 BCA ¶ 2688 Zurn Constructors v. Castaic Lake Water Agency, 2003 WL 22846350 (2003)

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its damages, including home office overhead damages, using a reasonable basis of computation that results in a reasonable approximation. In order to recover these damages, UMM has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the following: 1. Big-D is the legal cause of its delay damages; 2. The amount of its total overhead cost incurred during the contract period; 3. The contract billings from the delayed contract; 4. The total billings of UMM during the contract period; 5. The number of days of contract performance; and 6. The number of days of delay to UMM' performance. s

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INSTRUCTION NO. __ Measure ­ Failure to Make Timely or Complete Progress Payments ­ Interest20 If, under the Court' instructions, you find that UMM is entitled to a verdict against Bigs D because Big-D breached the subcontract by failing to make timely or complete progress payments, you must award UMM two percent (2%) of the amount due per month for every month that payment was not made up to today' date. s

20

California Business. & Professions Code § 7108.5

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INSTRUCTION NO. __ Abandonment Damages21 If you find that Big-D abandoned the subcontract, UMM may be compensated for the reasonable value of labor, services, equipment and materials rendered to Big-D by awarding UMM the reasonable value of what it would have cost Big-D to obtain from another person the labor, services equipment and materials UMM provided. You shall not consider the provisions of the subcontract in determining this reasonable value.

Amelco Electric v. City of Thousand Oaks, 27 Cal.4th 228, 239 (2002) MB 7100A.08 (mod.)

21

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INSTRUCTION NO. __ Modified Total Cost Damages22 UMM has introduced evidence that one methodology for quantifying its damages for abandonment is the Modified Total Cost Approach. You may consider this method for calculating UMM' damages if UMM has satisfied its burden of proving by a preponderance of s the evidence all of the facts necessary to establish: 1. It is impractical for UMM to prove the actual damages suffered directly; 2. UMM' bid was reasonable; s 3. UMM' actual costs of construction were reasonable; and s 4. UMM was not responsible for the amounts it seeks from Big-D.

22

Amelco Electric v. City of Thousand Oaks, 27 Cal.4th 220 (2002)

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INSTRUCTION NO. __ Nominal Damages23 If you decide that Big-D breached the contract but also that UMM was not harmed by the breach, you may still award UMM nominal damages such as one dollar.

23

CACI 360

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INSTRUCTION NO. __ UMM Defenses To BIG-D Generally24 If you find that Big-D has proved the elements of any of its claims by a preponderance of the evidence, you must then determine whether UMM has proved, by a preponderance of the evidence, any defenses to liability.

24

ABA Model Jury Instructions, Construction Litigation No. 9.02

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INSTRUCTION NO. __ Mitigation of Damages25 If UMM breached the contract and the breach caused harm, Big-D is not entitled to recover damages for harm that UMM proves Big-D could have avoided with reasonable efforts or expenditures. You should consider the reasonableness of Big-D' efforts in light of the s circumstances facing it at the time, including its ability to make efforts or expenditures without undue risk or hardship. If Big-D made reasonable efforts to avoid harm, then your award should include reasonable amounts that it spent for this purpose.

25

CACI 358

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INSTRUCTION NO. __ Waiver26 You may find waiver of a contract right if you find that Big-D deliberately acted so inconsistently with an intent to enforce the right in question that a reasonable person would believe that Big-D had relinquished that right. Waiver may be based on verbal expressions, or alternatively, on conduct. If you find waiver based on Big-D' conduct rather than verbal expressions, UMM must additionally s establish that it relied in good faith on that conduct to its prejudice.

26

MB 300F.20, 21

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INSTRUCTION NO. __ Unconscionable Conduct27 UMM claims as a defense to Big-D' complaint that Big-D' misconduct precludes its s s enforcement of Big-D' claims. To establish this defense, UMM must prove that Big-D' s s conduct was unconscionable and resulted in prejudice to UMM. Big-D' misconduct must be intimately connected with Big-D' claims of UMM' breach s s s of contract and of such a prejudicial nature that it would be unfair to allow Big-D to rely on UMM' breach. If that is established by UMM, then Big-D is barred from claiming UMM' s s breach of the contract.

MB 300F.29; Civil Code section 3517 (no one can take advantage of his or her own wrong.); Pond v. Insurance Co. of North America (1984) 151 Cal.App.3d 280, 289-290; Camp v. Jeffer, Mangels & Marmaro (1995) 35 Cal.App.4th 620, 638.

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INSTRUCTION NO. __ Discharge of Obligation28 UMM claims as a defense that its obligation to perform under the subcontract was discharged because it was impossible. UMM has the burden of proof on this defense. I will now instruct you on what I mean by impossibility. The fact that performance may involve some unforeseen difficulty or expense does not establish impossibility. On the other hand, it is not necessary to show that performance was totally impossible. It is enough that an unforeseen event occurred that made performance excessively difficult or unreasonably expensive.

28

MB 300F.70, 71

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INSTRUCTION NO. __ Estoppel29

UMM contends that Big-D is estopped from asserting that UMM breached the contract on the grounds that UMM did not perform its work in conformance with the Project Schedule. The defense of estoppel applies whenever a party has, by its own statement or conduct, intentionally and deliberately led another to believe a particular thing is true and to act upon such belief, it is not, in any litigation arising out of such statement or conduct, permitted to contradict it. If you find that: 1. Big-D knew that its representations to UMM regarding the status of the project schedule at the time UMM and Big-D entered into the contract were not true or complete; 2. Big-D intended that its representations regarding the project schedule would be acted upon by UMM and/or that UMM had the right to believe Big-D' representations; s 3. UMM was ignorant of the true status of the project schedule prior to entering into the contract; and 4. UMM relied upon the Big-D' representations to its injury s then you shall find for UMM and against Big-D as to any claims regarding a failure to comply with the project schedule, including claims for damages for delay.

29

DRG Beverly Hills v. Chopstix Dim Sum Café, 30 Cal.App.4th 54, 59-60 (1994)

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INSTRUCTION NO. __ Sole Source Supplier30 Big-D claims that UMM breached its contract, in part, due to the actions and/or omissions of UMM' subcontractor Frick. UMM contends that Big-D required UMM to contract s with Frick for a portion of the work on the project and Big-D is therefore responsible for any breaches or damages relating to Frick' work. s If you find that: 1. UMM was required by Big-D to contract with Frick for a portion of the work on the Project; 2. Frick' conduct was a legal cause of damages to UMM and/or Big-D; and s 3. UMM did not cause or contribute to Frick' conduct which was a legal cause of s damages to UMM and/or Big-D, then you can not find that Frick' conduct is a basis for a claim that UMM breached the contract s with Big-D.

30

CACI 3700, 3701 (mod.)

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INSTRUCTION NO. __ Excuse of Performance31 The breach of an important contract condition may excuse the other party from performance. A party complaining of the breach of a contract is not entitled to recover therefor unless he has fulfilled his obligations.

31

Civ. Code § 1439; Wiz Technology, Inc. v. Coopers & Lybrand, 106 Cal.App.4th 1, 12 (2003)

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INSTRUCTION NO. __ Acceptance of Full Performance32 Full performance of an obligation, by the party whose duty it is to perform, or by any other person on its behalf, and with its consent, if accepted by the person to whom the obligation is due, satisfies and extinguishes the obligation.

32

BAJI 10.83

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INSTRUCTION NO. __ Repudiation33 UMM claims that Big-D repudiated the contract. An unjustified or unexcused repudiation of or failure to perform a contract at the time performance is due is an actual breach. A repudiation which occurs before the time when performance is due is a breach by anticipatory repudiation, sometimes referred to as an anticipatory breach. When an anticipatory breach occurs, the injured party may either sue immediately, or wait until the time for performance, and then excuse its rights for actual breach of contract. An anticipatory repudiation or breach may be express or implied. A person who expressly repudiates the contract by an unequivocal refusal to perform, commits an express anticipatory breach or repudiation of the contract.

33

BAJI 10.87 (mod.)

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INSTRUCTION NO. __ Waiver of Breach34 UMM contends that if it breached the contract, such breach was waived by Big-D. Instead of treating a breach as a termination of the contract, the injured party may waive the breach, by electing to treat the contract as still alive, and remaining ready and able to perform on its own part, thereby limiting the claim to damages caused by the breach. A waiver may be express or implied. It is implied when the injured party continues to perform, with knowledge of the other' breach and accepts further performance from the breaching party following the s breach.

34

BAJI 10.88

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INSTRUCTION NO. __ Applicability of Subcontract Provisions in Case of Abandonment 35 If you find that UMM has proven that Big-D abandoned their contract, you are instructed as follows: 1. Big-D can not rely on any of the subcontract provisions as grounds for claiming that UMM breached of contract. 2. Big-D can not rely on any of the subcontract provisions as grounds for claiming that UMM failed to satisfy any conditions precedent in the contract, including provisions relating to the giving of notice, compliance with the change order process, or any other provisions relating to making claims, receiving payments and/or release of retention.

35

Amelco Electric v. City of Thousand Oaks, 27 Cal.4th 220, 239 (2002)

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INSTRUCTION NO. __ Interpretation ­ Meaning of Ordinary Words36 You should assume that the parties intended the words in their contract to have their usual and ordinary meaning unless you decide that the parties intended the words to have a special meaning.

36

CACI 315

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INSTRUCTION NO. __ Interpretation ­ Meaning of Technical Words37 You should assume that the parties intended technical words used in the contract to have the meaning that is usually given to them by people who work in that technical field, unless you decide that the parties clearly used the words in a different sense.

37

CACI 316

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INSTRUCTION NO. __ Interpretation ­ Construction of Contract as a Whole38 In deciding what the words of a contract meant to the parties, 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.

38

CACI 317

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INSTRUCTION NO. __ Interpretation ­ Construction by Conduct39 In deciding what the words in a contract meant to the parties, you may consider how the parties acted after the contract was created but before any disagreement between the parties arose.

39

CACI 318

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INSTRUCTION NO. __ Interpretation ­ Reasonable Time40 If a contract does not state a specific time in which the parties are to meet the requirements of the contract, then the parties must meet them within a reasonable time. What is a reasonable time depends on the facts of each case, including the subject matter of the contract, the reasons each party entered into the contract, and the intentions of the parties at the time they entered the contract.

40

CACI 319

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INSTRUCTION NO. __ Interpretation ­ Construction Against Drafter41 In determining the meaning of a term of the contract, you must first consider all of the other instructions that I have given you. If, after considering these instructions, you still cannot agree on the meaning of the term, then you should interpret the contract term against the party that drafted the term or the party that caused the uncertainty.

41

CACI 320

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INSTRUCTION NO. __ Estoppel 42 In this case, Big-D seeks the benefit of a contract term(s) that provide(s): UMM responds that Big-D' conduct subsequent to entering into the contract in direct s opposition to this/these contract term(s) waived Big-D' ability to take advantage of its effects. s Estoppel is a defense available to a party who has acted to its detriment in reliance on another party' misrepresentations or failure to disclose some material facts. s To find that Big-D waived its ability to take advantage of said contract provision(s), you must find the following three elements: 1. Words, acts, conduct, or acquiescence, on the part of Big-D causing UMM to

believe in a certain state of things; 2. Willfulness or negligence on the part of Big-D with regard to the acts, conduct, or

acquiescence; and 3. Reliance by UMM on the state of things so indicated as a consequence of which

UMM changed its position to its detriment. To successfully claim estoppel against Big-D, it is UMM' burden to prove by clear and s convincing evidence that Big-D' conduct and words at any time after making the contract would s have convinced a reasonable person that Big-D was waiving this//these term(s) of the original contract.

42

ABA Model 9.12 (mod.)

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INSTRUCTION NO. __ Allocation of Delays43 In this case, Big-D seeks damages for UMM' alleged delay in completing its portion of s the work under the subcontract. If you find that Big-D, or anyone acting on behalf of Big-D, is partly responsible for those delays, then it is appropriate that you reduce the amount awarded to Big-D in accordance with the delay properly attributable to Big-D or those persons acting on behalf of Big-D. Big-D has the burden of proving by a preponderance of the evidence a proper allocation of damages resulting from delay. If you find that both Big-D and UMM, or some other party or parties, have all contributed in some manner to the damages suffered by Big-D, if any, but that Big-D can not establish with a reasonable degree of certainty the extent to which UMM is responsible for causing the damages, then Big-D may not recover for any of its damages for delay in this case.

43

ABA Model 10.05 (mod.)

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INSTRUCTION NO. __ Waiver of Condition Precedent44 UMM and Big-D agreed in the subcontract that Big-D would not have to pay compensation for change orders or field orders unless UMM gave Big-D seven days written notice after encountering a changed condition and/or provided detailed pricing and time extension information within ten days of encountering a changed condition. That condition did not occur throughout the project. Therefore, Big-D contends that it does not have to pay UMM additional compensation for changed conditions where the timing of the notice and information was made within the time provided for in the subcontract. To overcome this contention, UMM must prove that Big-D, by words or conduct, gave up its right to require written notice seven and/or ten days after encountering a changed condition before having to pay additional compensation for work related to that changed condition.

44

Contract Section 2.1; CACI 323

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INSTRUCTION NO. __ Substantial Performance45 Big-D contends that UMM did not perform all of the things that it was required to do under the written subcontract, and therefore Big-D did not have to perform its obligations under the subcontract. To overcome this contention, UMM must prove both of the following: 1. 2. That UMM made a good faith effort to comply with the subcontract; and That Big-D received essentially what the subcontract called for because UMM' s

failures, if any, were so trivial or unimportant that they could have been easily fixed or paid for.

SD:22143930.1

45

CACI 312