Free Lodged Proposed Document - District Court of Arizona - Arizona

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Ira M. Schwartz (I.D. No. 010448) Michael A. Cordier (I.D. No. 014378) DeCONCINI McDONALD YETWIN & LACY, P.C. 7310 N. 16th Street, Suite 330 Phoenix, Arizona 85020 Telephone (602) 282-0500 Facsimile (602) 282-0520
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
16th Street, Suite 330 Phoenix, Arizona 85020

Erchonia Medical Inc., et al Plaintiff, v. Miki Smith, et al Defendants. ____________________________________

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Case No.: CIV 02-2036-PHX-MHM Consolidated with CIV 02-2048-PHX-MHM CIV 02-2353-PHX-MHM PROPOSED JURY INSTRUCTIONS AND FORM OF VERDICT

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Plaintiff and Defendant propose the following instructions be given to the jury as set forth below: I. NINTH CIRCUIT MODEL CIVIL JURY INSTRUCTIONS (Tab A): Preliminary: 1.1 Duty Of Jury 1.3 1.4 1.5 1.6 1.7 What Is Evidence What Is Not Evidence Evidence For Limited Purpose Direct And Circumstantial Evidence Ruling On Objections

Case 2:02-cv-02036-MHM

Document 368-2

Filed 07/16/2007

Page 1 of 58

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1.8 1.9 1.10 1.11 1.12 1.13

Credibility Of Witnesses Conduct Of The Jury No Transcript Available To Jury Taking Notes Outline Of Trial Burden Of Proof ­ Preponderance Of The Evidence

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

Instructions During Trial: 2.1 2.2 2.6 Cautionary Instruction ­ First Recess Bench Conferences And Recesses Deposition As Substantive Evidence

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Instructions At The End Of The Case: 3.1 3.2 3.3 3.5 3.6 3.7 Duties Of Jury To Find Facts And Follow The Law What Is Evidence What Is Not Evidence Direct And Circumstantial Evidence Credibility Of Witnesses Opinion Evidence ­ Expert Witnesses

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Jury Deliberations: 4.1 4.2 4.3 4.4 Duty To Deliberate Use Of Notes Communication With The Court Return Of Verdict

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Burden of Proof ­ Preponderance of Evidence: 5.1 II. Burden of Proof ­ Preponderance of Evidence

PROPOSED SPECIAL JURY INSTRUCTIONS: In addition to the standard instructions set forth above, the parties propose

instructions on the following issues (Tab B). There is no objection to these instructions. III. DISPUTED JURY INSTRUCTION (Tab C): The parties dispute the instructions

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

set forth under Tab C. The objections or proposed alternative jury instructions are provided. Submitted this 16th day of July, 2007. DeCONCINI McDONALD YETWIN & LACY

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By s/Ira M. Schwartz Ira M. Schwartz Michael A. Cordier 7310 N. 16th St., Suite 330 Phoenix, Arizona 85020 (602) 282-0500 Attorneys for Erchonia Medical Inc. and Kevin Tucek BUELER JONES, LLP

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By s/Gordon S. Bueler Gordon S. Bueler 1300 N. McClintock Drive, Suite B-4 Chandler, AZ 85226 Attorneys for Miki Smith and KMS Marketing, Inc.

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Certificate of Service I certify that on _July 16, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to those attorneys registered with CM/ECF: Gordon S. Bueler, Esq. BUELER JONES, LLP 1300 N. McClintock Drive, Suite B-4 Chandler, AZ 85226 Attorneys for Miki Smith and KMS Marketing, Inc. s/Ira M. Schwartz

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
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TAB A
Ninth Circuit Model Civil Jury Instructions

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
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REQUESTED JURY INSTRUCTION NO. ____

1.1

DUTY OF JURY

Ladies and gentlemen: You are now the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial, I will give you more detailed instructions. Those instructions will control your deliberations.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

You should not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be.

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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 1.1

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

1.3

WHAT IS EVIDENCE

The evidence you are to consider in deciding what the facts are consists of:

(1)

the sworn testimony of any witness;

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

(2)

the exhibits which are received into evidence; and

(3)

any facts to which the lawyers stipulate

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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 1.3

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

1.4

WHAT IS NOT EVIDENCE

The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case:

(1)

statements and arguments of the attorneys;

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

(2)

questions and objections of the attorneys;

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(3)

testimony that I instruct you to disregard; and

(4)

anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses.

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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 1.4

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

1.5

EVIDENCE FOR LIMITED PURPOSE

Some evidence may be admitted for a limited purpose only. When I instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and for no other.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 1.5

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_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

1.6

DIRECT AND CIRCUMSTANTIAL EVIDENCE

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 1.6

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

1.7

RULING ON OBJECTIONS

There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

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Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard.

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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 1.7

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____ 1.8 CREDIBILITY OF WITNESSES

In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) (3) (4) the witness' memory; the witness' manner while testifying; the witness' interest in the outcome of the case and any bias or prejudice; (5) (6) whether other evidence contradicted the witness' testimony; the reasonableness of the witness' testimony in light of all the evidence; and (7) any other factors that bear on believability.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
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The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify. SOURCE: Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 1.8 _________ _________ _________ _________ GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

1.9

CONDUCT OF THE JURY

I will now say a few words about your conduct as jurors. First, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case please let me know about it immediately; Second, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it; Third, do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own; Fourth, if you need to communicate with me simply give a signed note to the [bailiff] [clerk] [law clerk] to give to me; and Fifth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide that case and you and your fellow jurors have discussed the evidence. Keep an open mind until then.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 1.9

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

1.10

NO TRANSCRIPT AVAILABLE TO JURY

At the end of the trial, you will have to make your decision based on what you recall of the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the testimony as it is given.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 1.10

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_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

1.11

TAKING NOTES

If you wish, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you so that you do not hear other answers by witnesses. When you leave, your notes should be left in the [courtroom] [jury room] [envelope in the jury room].

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

Whether or not you take notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 1.11

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

1.12

OUTLINE OF TRIAL

The next phase of the trial will now begin. First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

The plaintiff will then present evidence, and counsel for the defendant may crossexamine. Then the defendant may present evidence, and counsel for the plaintiff may cross-examine.

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After the evidence has been presented, [I will instruct you on the law that applies to the case and the attorneys will make closing arguments] [the attorneys will make closing arguments and I will instruct you on the law that applies to the case].

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After that, you will go to the jury room to deliberate on your verdict.

SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 1.12

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

1.13

BURDEN OF PROOF ­ PREPONDERANCE OF THE EVIDENCE

When a party has the burden of proof on any claim [or affirmative defense] by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim [or affirmative defense] is more probably true than not true.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

You should base your decision on all of the evidence, regardless of which party presented it.

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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 1.13

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

2.1

CAUTIONARY INSTRUCTION--FIRST RECESS

We are about to take our first break during the trial, and I want to remind you of the instruction I gave you earlier. Until the trial is over, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately. Do not read or listen to any news reports of the trial. Finally, you are reminded to keep an open mind until all the evidence has been received and you have heard the arguments of counsel, the instructions of the court, and the views of your fellow jurors. If you need to speak with me about anything, simply give a signed note to the [marshal] [bailiff] [clerk] [law clerk] to give to me. I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on such occasions.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
7310

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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 2.1

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

2.2

BENCH CONFERENCES AND RECESSES

From time to time during the trial, it may become necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

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We will, of course, do what we can to keep the number and length of these conferences to a minimum. I may not always grant an attorney's request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 2.2

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

2.6

DEPOSITION AS SUBSTANTIVE EVIDENCE

[When a person is unavailable to testify at trial, the deposition of that person may be used at the trial.] A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

The deposition of [witness], which was taken on [date], is about to be presented to you. Deposition testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if the witness had been present to testify.

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[Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.]

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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 2.6

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____ 3.1 DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW

Members of the jury, now that you have heard all the evidence [and the arguments of the attorneys], it is my duty to instruct you on the law which applies to this case. A copy of these instructions will be available in the jury room for you to consult if you find it necessary. It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. You must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath promising to do so at the beginning of the case. In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. You must not read into these instructions or into anything the court may have said or done any suggestion as to what verdict you should return--that is a matter entirely up to you.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 3.1

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

3.2

WHAT IS EVIDENCE

The evidence from which you are to decide what the facts are consists of:

(1)

the sworn testimony of any witness;

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

(2)

the exhibits which have been received into evidence; and

(3)

any facts to which the lawyers have agreed or stipulated.

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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 3.2

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_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

3.3

WHAT IS NOT EVIDENCE

In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you:

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

(1)

Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, [will say in their] closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls.

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(2)

Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it.

(3)

Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. [In addition some testimony and exhibits have been received only for a limited purpose; where I have given a limiting instruction, you must follow it.]

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(4)

Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.

SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 3.3

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

3.5

DIRECT AND CIRCUMSTANTIAL EVIDENCE

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what the witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

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SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 3.5

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_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____

3.6

CREDIBILTY OF WITNESSES

In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

In considering the testimony of any witness, you may take into account:

(1)

the opportunity and ability of the witness to see or hear or know the things testified to;

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(2)

the witness' memory;

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(3)

the witness' manner while testifying;

(4)

the witness' interest in the outcome of the case and any bias or prejudice;

(5)

whether other evidence contradicted the witness' testimony;

(6)

the reasonableness of the witness' testimony in light of all the evidence; and

(7) any other factors that bear on believability.

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The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 3.6

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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REQUESTED JURY INSTRUCTION NO. ____ 4.1 DUTY TO DELIBERATE

When you begin your deliberations, you should elect one member of the jury as your presiding juror. That person will preside over the deliberations and speak for you here in court. You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all of the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinion if the discussion persuades you that you should. Do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict. SOURCE: Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 4.1

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
7310

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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1 2 3 4 5 6 7 8

REQUESTED JURY INSTRUCTION NO. ____

4.2

USE OF NOTES

Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 4.2

7310

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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1 2 3 4 5 6 7 8

REQUESTED JURY INSTRUCTION NO. ____

4.3

COMMUNICATION WITH COURT

If it becomes necessary during your deliberations to communicate with me, you may send a note through the [marshal] [bailiff], signed by your presiding juror or by one or more members of the jury. No member of the jury should ever attempt to communicate with me except by a signed writing; and I will communicate with any member of the jury on anything concerning the case only in writing, or here in open court. If you send out a question, I will consult with the parties before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone--including me--how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have been discharged. Do not disclose any vote count in any note to the court.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
7310

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 4.3

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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1 2 3 4 5 6 7 8

REQUESTED JURY INSTRUCTION NO. ____

4.4

RETURN OF VERDICT

A verdict form has been prepared for you. [Any explanation of the verdict form may be given at this time.] After you have reached unanimous agreement on a verdict, your presiding juror will fill in the form that has been given to you, sign and date it, and advise the court that you are ready to return to the courtroom

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 4.4

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

7310

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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1 2 3 4 5 6 7 8

REQUESTED JURY INSTRUCTION NO. ____

5.1

BURDEN OF PROOF--PREPONDERANCE OF THE EVIDENCE

When a party has the burden of proof on any claim [or affirmative defense] by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim [or affirmative defense] is more probably true than not true.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

You should base your decision on all of the evidence, regardless of which party presented it.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

SOURCE:

Ninth Circuit Model Civil Jury Instructions. PRELIMINARY INSTRUCTION 5.1

7310

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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1 2 3 4 5 6 7 8

TAB B
Proposed Special Jury Instructions

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
7310

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

33
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1 2 3 4 5 6 7 8

REQUESTED JURY INSTRUCTION NO. ____ Fiduciary Duty (Causation) Before you can find Miki Smith liable on the breach of fiduciary duty claim, you must find that Miki Smith's breach of fiduciary duty was a cause of Erchonia Medical's damages. A breach of fiduciary duty is a cause of damages if it helps produce the damages and if the damages would not have occurred without the breach.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

SOURCE:

RAJI (Civil) 4th Commercial Torts 2.

7310

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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1 2 3 4 5 6 7 8

REQUESTED JURY INSTRUCTION NO. ____ Fiduciary Duty (Measure of Damages) If you find that Miki Smith is liable to Plaintiff on the breach of fiduciary duty claim, you must then decide the full amount of money that will reasonably and fairly compensate Erchonia Medical for any of the following elements of damage proved by the evidence to have resulted from Miki Smith's breach of this duty: 1. 2. Loss of money or property; The profit or proceeds that Erchonia Medical would have received had Miki

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Smith performed his duties; and 3. Money or property that is unjust for Miki Smith to keep.

7310

SOURCE:

RAJI (Civil) 4th Commerical Torts 3; Restatement (Second) of Torts §874

comment b and §924; Restatement of Agency §§403, 404, and 404A.

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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1 2 3 4 5 6 7 8

REQUESTED JURY INSTRUCTION NO. ____ Conversion Conversion occurs when the Defendant intentionally and wrongfully asserts control over property that is inconsistent with the rights of the Plaintiff. Conversion is an offense against the possession of property. In order to maintain an action for conversion, the Plaintiff must show that, at the time of the conversion, it was in possession of the property or otherwise was entitled to immediate possession.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

SOURCE:

Focal Point, Inc. v. U-Haul Co. of Arizona, Inc., 155 Ariz. 318, 746 P.2d 488

(App. 1986); Empire Fire & Marine Ins. Co. v. First Nat. Bank of Arizona, 26 Ariz. App. 157, 546 P2d 1166 (1976).

7310

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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1 2 3 4 5 6 7 8

REQUESTED JURY INSTRUCTION NO. ____ CONTRACT JURY INSTRUCTION NO. 1 Burden of Proof (More Probably True) The party making a claim has the burden of proof on that claim. A party who has the burden of proof must persuade you by the evidence that the claim is more probably true than not true. This means the evidence that favors that party outweighs the opposing evidence. In determining whether a party has met this burden you will consider all the evidence, whether presented by Erchonia Medical or by Miki Smith. SOURCE: RAJI (Civil) 4th Standard 2; RAJI (Civil) 4th Standard Contract 1.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

7310

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1 2 3 4 5 6 7 8

REQUESTED JURY INSTRUCTION NO. ____ CONTRACT JURY INSTRUCTION NO. 2 Claims and Elements I will give you detailed instructions of law later in these instructions. But I will now give you a statement of each claim in the case, and a statement of what has to be proved on each claim. Erchonia Medical, Inc. claims that Miki Smith breached a contract, in this case, a promissory note. On this claim, Erchonia Medical must prove there was a contract with Miki Smith. What the contract required of the parties, that Miki Smith breached the

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

contract and that Erchonia Medical suffered harm as a result of the breach.
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

SOURCE: RAJI (Civil) 4th Standard Contract 2; Graham v. Asbury, 112 Ariz. 184, 185, 540 P.2d 656, 657 (1975).

7310

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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1 2 3 4 5 6 7 8

REQUESTED JURY INSTRUCTION NO. ____ CONTRACT JURY INSTRUCTION NO. 3

Definition and Formation of Contract A contract is an agreement between two or more persons or entities. For a contract to exist there must be an offer, acceptance of the offer, and consideration. To find that the parties had a contract, you must find that they each intended to be bound by the agreement, and that they made that intention known to the other party.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

SOURCE: RAJI (Civil) 4th Standard Contract 3; Savoca Masonry Co. v. Homes & Son Constr. Co., 112 Ariz. 392, 542 P.2d 817 (1975); K-Line Builders, Inc. v. First Fed. Sav. & Loan Ass'n, 139 Ariz. 209, 677 P.2d 1317 (Ct. App. 1983); Restatement (Second) of Contract s § 1 (1981); Virginia Model Jury Instructions (Civil, 45.010 (1993).

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

7310

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1 2 3 4 5 6 7 8

REQUESTED JURY INSTRUCTION NO. ____ CONTRACT JURY INSTRUCTION NO. 4 Offer An offer is a proposal to enter into a contract on the terms contained in the offer.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

SOURCE: RAJI (Civil) 4th Standard Contract 4; Virginia Model Jury Instructions (Civil, 45.020 (1993); K-Line Builders, Inc. v. First Fed. Sav. & Loan Ass'n, 139 Ariz. 209, 677 P.2d 1317 (Ct. App. 1983); Restatement (Second) of Contract s § 24 (1981).

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

7310

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1 2 3 4 5 6 7 8

REQUESTED JURY INSTRUCTION NO. ____ CONTRACT JURY INSTRUCTION NO.6 Acceptance An acceptance is an expression of agreement to the terms of the offer by the person to whom the offer was made.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

SOURCE: RAJI (Civil) 4th Standard Contract 6; Contempo Constr. v. Mt. States T & T Co., 153 Ariz. 279, 281, 736 P.2d 13, 15 (Ct. App. 1987); K-Line Builders, Inc. v. First Fed. Sav. & Loan Ass'n, 139 Ariz. 209, 677 P.2d 1317 (Ct. App. 1983); Restatement (Second) of Contract s § 50 (1981).

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

7310

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1 2 3 4 5 6 7 8

REQUESTED JURY INSTRUCTION NO. ____ CONTRACT JURY INSTRUCTION NO. 7 Consideration Consideration is a benefit received, or something given up or exchanged, as agreed upon between the parties.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

SOURCE: RAJI (Civil) 4th Standard Contract 7; Federal Rubber Co. v. Pruett, 55 Ariz. 76, 98 P.2d 849 (1940); Muchesko v. Muchesko, 191 Ariz. 265, 955 P.2d 21 (Ct. App. 1997); K-Line Builders, Inc. v. First Fed. Sav. & Loan Ass'n, 139 Ariz. 209, 677 P.2d 1317 (Ct. App. 1983); Gill v. Kreutzberg, 24 Ariz. App. 207, 537 P.2d 44 (1975).

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

7310

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1 2 3 4 5 6 7 8

REQUESTED JURY INSTRUCTION NO. ____ CONTRACT JURY INSTRUCTION NO. 17 Measure of Direct Damages (Breach of Contract) If you find Miki Smith is liable to Erchonia Medical for breach of contract, you must then decide the full amount of money that will reasonably and fairly compensate Erchonia Medical for the damages proved by the evidence to have resulted naturally and directly from the breach of contract. The damages you award for breach of contract must be the amount of money that will place Erchonia Medical in the position it would have been in if the contract had been performed.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

SOURCE: RAJI (Civil) 4th Standard Contract 17; A.R.A. Mfg. Co. v. Pierce, 86 Ariz. 136, 141, 341 P.2d 928, 932 (1959); Northern Ariz. Gas Serv., Inc. v. Petrolane Transp., Inc., 145 Ariz. 467, 478-79, 702 P.2d 696, 707-08 (Ct. App. 1984); Southern Ariz. School for Boys, Inc. v. Chery, 119 Ariz. 277, 280, 580 P.2d 738, 741 (Ct. App. 1978); Restatement (Second) of Contract s §§ 347, 351 (1981); Dobbs, Handbook on the Law of Remedies § 12.1 (1973).

7310

_________ _________ _________ _________

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

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1 2 3 4 5 6 7 8

REQUESTED JURY INSTRUCTION NO. ____ CONTRACT JURY INSTRUCTION NO. 30

Duress Miki Smith claims that he entered into the contract under duress. Duress is a wrongful act or wrongful threat by a person that induces another person to enter into a contract which would not have been entered into without the duress. A wrongful act or threat amounts to duress if the act or threat placed Smith in such fear that his free will and judgment were overcome. If you find that Smith entered into the contract as a result of duress then the contract cannot be enforced against him. Smith has the burden of proving that the contract was entered into as a result of duress. SOURCE: RAJI (Civil) 4th Standard Contract 30; Inter-Tel, Inc. v. Bank of America, 195 Ariz. 111, 985 P.2d 596 (App. 1999); In re Estate of Cohen, 105 Ariz. 337, 464 P.2d 620 (1970); Dunbar v. Dunbar, 102 Ariz. 352, 429 P.2d 949 (1967); Republic National Life Insurance Co. v. Rudine, 137 Ariz. 62, 668 P.2d 905 (App. 1983).

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
7310

12 13 14 15 16 17 18 19

_________
20 21 22 23 24 25 26 27

GIVEN REFUSED GIVEN AS MODIFIED WITHDRAWN

_________ _________ _________

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1 2 3 4 5 6 7 8

VERDICT (Use if you find for the Plaintiff) Count II ­ Breach of Fiduciary Duty We, the Jury, duly empaneled and sworn in the above entitled action, upon our oaths, on Count II of the Complaint, for breach of fiduciary duty, find in favor of the plaintiff, Erchonia Medical Inc., and find the damages to be $____________

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

1. ____________________________

5. ___________________________

2. ____________________________

6. ___________________________

3. ____________________________

7. ___________________________

7310

4. ____________________________

______________________________ Foreperson

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1 2 3 4 5 6 7 8

VERDICT (Use if you find for the Plaintiff) Count VI ­ Conversion We, the Jury, duly empaneled and sworn in the above entitled action, upon our oaths, on Count VI of the Complaint, for conversion, find in favor of the plaintiff, Erchonia Medical Inc., and find the damages to be $____________

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

1. ____________________________
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

5. ___________________________

2. ____________________________

6. ___________________________

3. ____________________________

7. ___________________________

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4. ____________________________

______________________________ Foreperson

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1 2 3 4 5 6 7 8

VERDICT (Use if you find for the Plaintiff) Count VIII ­ Breach of Contract (Promissory Note) We, the Jury, duly empaneled and sworn in the above entitled action, upon our oaths, on Count VIII of the Complaint, for breach of contract, find in favor of the plaintiff, Erchonia Medical Inc., and find the damages to be $____________

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

1. ____________________________
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

5. ___________________________

2. ____________________________

6. ___________________________

3. ____________________________

7. ___________________________

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4. ____________________________

______________________________ Foreperson

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1 2 3 4 5 6 7 8

VERDICT (Use if you find for the Defendant) Count II ­ Breach of Fiduciary Duty We, the Jury, duly empaneled and sworn in the above entitled action, upon our oaths, on Count II of the Complaint, for breach of fiduciary duty, find in favor of the defendant Miki Smith.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

1. ____________________________
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

5. ___________________________

2. ____________________________

6. ___________________________

3. ____________________________

7. ___________________________

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4. ____________________________

______________________________ Foreperson

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1 2 3 4 5 6 7 8

VERDICT (Use if you find for the Plaintiff) Count VI ­ Conversion We, the Jury, duly empaneled and sworn in the above entitled action, upon our oaths, on Count VI of the Complaint, for conversion, find in favor of the defendant, Miki Smith.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

1. ____________________________

5. ___________________________

2. ____________________________

6. ___________________________

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

3. ____________________________

7. ___________________________

4. ____________________________

______________________________ Foreperson

7310

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1 2 3 4 5 6 7 8

VERDICT (Use if you find for the Plaintiff) Count VIII ­ Breach of Contract (Promissory Note) We, the Jury, duly empaneled and sworn in the above entitled action, upon our oaths, on Count II of the Complaint, for breach of fiduciary duty, find in favor of the defendant Miki Smith.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

1. ____________________________

5. ___________________________

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

2. ____________________________

6. ___________________________

3. ____________________________

7. ___________________________

4. ____________________________

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______________________________ Foreperson

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1 2 3 4 5 6 7 8

TAB C
Disputed Jury Instructions

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
7310

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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1 2 3 4 5 6 7 8

PLAINTIFF'S REQUESTED JURY INSTRUCTION NO. ____ Breach of Fiduciary Duty Miki Smith was an employee of Erchonia Medical. Employees owe a special duty to their employers, which is called a fiduciary duty. This duty requires employees to act with loyalty to their employers and not to compete with their employers. Erchonia Medical claims that Miki Smith breached this fiduciary duty. To establish this claim, Erchonia must prove: 1. 2. 3. Miki Smith breached this duty; Miki Smith's breach of this duty caused damages to Erchonia Medical; and Erchonia's damages.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
7310

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

SOURCE:

Restatement (Third) of Agency §1.01 comment (e) and illustration 17;

Restatement (Third) of Agency, §8.01 and comment (c); Restatement (Second) Agency §393; RAJI (Civil) 4th Commerical Torts 1D (modified).

OBJECTION: Defendant objects to this proposed jury instruction. Whether an employee has a special duty to his employer depends on the facts of each case. The Arizona Recommended Jury Instructions do not include employees as owing special duties to their employers. The Arizona Recommended Jury Instruction list escrow agents, trustees,

attorneys and partners as having and owing fiduciary duties but not employees. _________ GIVEN

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1 2 3 4 5 6 7 8

_________ _________ _________

REFUSED GIVEN AS MODIFIED WITHDRAWN

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
7310

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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1 2 3 4 5 6 7 8

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
7310

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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1 2 3 4 5 Undue Influence 6 7 8

DEFENDANT'S REQUESTED JURY INSTRUCTION NO. ____

Miki Smith claims that Plaintiff exerted undue influence on him.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

Undue influence is unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relation between them is justified in assuming that that person will not act in a manner inconsistent with his welfare.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

If Smith's manifestation of assent to the contract was induced by Plaintiff's undue influence, the contract is voidable. SOURCE: Restatement (Second) of Contracts § 177.

7310

_________

GIVEN

_________

REFUSED

_________

GIVEN AS MODIFIED

_________

WITHDRAWN

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1 2 3 4 5 6 7 8

PLAINTIFF'S ALTERNATIVE PROPOSED REQUESTED JURY INSTRUCTION NO. ____
Undue Influence

Miki Smith claims that Plaintiff exerted undue influence on him.

Undue influence requires a showing of domination of the party exercising the persuasion or the existence of a confidential or other relationship between the parties from which a party can justifiably assume that the other party will not act in a manner inconsistent with the first party's welfare.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

If Smith's manifestation of assent to the contract was induced by Plaintiff's undue influence, the contract is voidable. SOURCE: Eagerton v. Fleming, 145 Ariz. 289, 292, 700 P.2d 1389 (App. 1985); Matter of Estate of Kerr 137 Ariz. 25, 29, 667 P.2d 1351, 1355. (App. 1983)

7310

_________

GIVEN

_________

REFUSED

_________

GIVEN AS MODIFIED

_________

WITHDRAWN

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1 2 3 4 5 6 7 8

DEFENDANT'S REQUESTED JURY INSTRUCTION NO. ____

Actual or Apparent Authority

Smith Claims that Charles "Chuck" Shanks was acting as an agent of Erchonia when he told Smith that he did not need to pay any amounts under the promissory note.

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020

Apparent agency exists when "the principal has intentionally or inadvertently induced third persons to believe that such a person was its agent although no actual or express authority was conferred on him as agent."

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

SOURCE: Premium Cigars Intern., Ltd. v. Farmer-Butler-Leavitt Ins. Agency 208 Ariz. 557, 567 (Ariz.App. Div. 1, 2004).

7310

_________

GIVEN

_________

REFUSED

_________

GIVEN AS MODIFIED

_________

WITHDRAWN

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PLAINTIFF'S ALTERNATIVE PROPOSED REQUESTED JURY INSTRUCTION NO. ____

Smith Claims that Charles "Chuck" Shanks was acting as an agent of Erchonia when he told Smith that he did not need to pay any amounts under the promissory note.

Apparent authority is created when the principal's conduct leads a third party to reasonably believe that he has authorized his agent to take the actions or make the representations in question. The principal must make some manifestation to the third party which could reasonably be relied upon to indicate that the agent had the alleged authority.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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North 16th Street, Suite 330 Phoenix, Arizona 85020

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SOURCE: Anchor Equities, Ltd. v. Joya, 160 Ariz. 463, 466, 773 P.2d 1022, 1025 (Ariz. App. 1989); Max of Switzerland, Inc. v. Allright Corp. of Delaware, 187 Ariz. 496, 500, 930 P.2d 1010, 1014 (Ariz. App. 1997).

7310

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GIVEN

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REFUSED

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GIVEN AS MODIFIED

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WITHDRAWN

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Case 2:02-cv-02036-MHM Document 368-2 Filed 07/16/2007 Page 58 of 58