Sandine v. Tate

          ORDER

         The Court is attaching working drafts of its final instructions and alternative verdicts. These drafts implement Don Tate's election to proceed on the contract. The first verdict covers fraud and contract claims, the second only contract claims. We'll see what the proof supports. And we will revise the instructions and verdict as needed during the trial.

         So Ordered.

         D.P. Marshall Jr., United States District Judge

         1.

         Follow all the Court's instructions. Written and spoken instructions are equally important. And it doesn't make any difference when I give an instruction. Follow them all.

         2.

         Your job is to decide what happened. Don't take anything I said or did as a suggestion about what your decision should be. You're the judges of the facts, not me.

         3.

         Don't decide the case based on sympathy, prejudice, or emotion. Decide based on the evidence, the law, and your common sense.

         4.

         The evidence is the witnesses' testimony, the exhibits, any facts agreed by the parties, and any facts I've told you that you must accept as true. Anything the lawyers said (such as questions, statements, arguments, and objections) is not evidence. If I told you to disregard something, ignore it. If you saw or heard something about this case outside the courtroom, ignore that, too. If I told you some evidence must be used only for a limited purpose, do so.

         5.

         Be careful evaluating each witness's credibility. Use your life experience and your common sense in deciding what testimony you believe.

         6.

         The sellers of this trucking business were Chad Sandine, Groundhogz Express, Inc., and Groundhogz Logistics, Inc. For simplicity, the Court will refer to all these parties as Groundhogz. The buyers were Don Tate and Tate Express, Inc. For simplicity, the Court will refer to both these parties as Tate.

         7.

         The party with the burden of proof must prove the facts asserted by a preponderance of the evidence. That means the party must prove that something is more likely true than not true. I will tell you whether Groundhogz or Tate has the burden of proof on particular issues. If Groundhogz has the burden of proof on a fact, and the evidence is equally balanced, then the sellers have not carried their burden. If Tate has the burden of proof on a fact, and the evidence is equally balanced, then the buyers have not carried their burden. Neither Groundhogz nor Tate must prove anything beyond a reasonable doubt. That's the standard for criminal cases, not civil cases like this one.

         8.

         Groundhogz claims that Tate violated the contract by not making monthly payments to Groundhogz and by not honoring Groundhogz"s right of first refusal. To succeed on this claim, Groundhogz must prove:

         First, that Groundhogz and Tate made a contract. All parties agree that they did;

         Second, that the contract required Tate to perform a certain act;

         Third, that Groundhogz did what the contract required it to do; and Fourth, that Tate did not do what the contract required of it.

         If you find that Groundhogz proved each of these propositions, your verdict should be for Groundhogz. If, though, you find that Groundhogz failed to prove one or more of these propositions, your verdict should be for Tate.

         9.

         If you decide that Tate violated the contract, then you must fix the amount of money that Groundhogz has proved will reasonably and fairly compensate it. Any award should put Groundhogz in no better position than it would have been in if both sides had performed their promises under the contract.

         The elements of damage that Groundhogz claims under the contract are:

-the due but unpaid monthly payments; and

-the lost right of first refusal.

         Whether either of these elements of damage has been proved by the evidence is for you to determine.

         10. Tate claims that Groundhogz violated the contract by not disclosing necessary information and by keeping money paid by FedEx to Groundhogz that Tate earned. To succeed on this claim, Tate must prove:

         First, that Tate and Groundhogz made a contract. All the parties agree that they did;

         Second, that the contract required Groundhogz to perform a certain act;

         Third, that Tate did what the contract required it to do; and Fourth, that Groundhogz did not do what the contract required of it.

         If you find that Tate proved each of these propositions, your verdict should be for Tate. If, though, you find that Tate failed to prove one or more of these propositions, your verdict should be for Groundhogz.

         11.

         If you decide that Groundhogz violated the contract, then you must fix the amount of money that Tate has proved will reasonably and fairly compensate it. Any award should put Tate in no better position than it would have been in if both Tate and Groundhogz had performed their promises under the contract.

         The elements of damage that Tate claims under the contract are:

- the amount Groundhogz received from FedEx during the transition period for services ...