Fill and Sign the Plaintiffs Next Claim is that the Defendant Violated What is Called a Form

3.3 Breach Of Fiduciary Duty The Plaintiff’s [next] claim is that the Defendant violated what is called a “fiduciary” duty or obligation that the Defendant allegedly owed to the Plaintiff. A “fiduciary” obligation exists whenever one person - - the client -- places special trust and confidence in another person - - the fiduciary - - relying upon the fiduciary to exercise discretion or expertise in acting for the client; and the fiduciary knowingly accepts that trust and confidence and thereafter undertakes to act in behalf of the client by exercising the fiduciary’s own discretion and expertise. Of course, the mere fact that a business relationship comes into being between two persons does not mean that either owes a fiduciary obligation to the other. If one person engages or employs another and thereafter directs or supervises or approves the other’s actions, the person so employed is not a fiduciary. Rather, as previously stated, it is only when one party reposes, and the other accepts, a special trust and confidence, usually involving the exercise of professional expertise and discretion that a fiduciary relationship comes into being. When one person does undertake to act for another in a fiduciary relationship, the law forbids the fiduciary from acting in any manner adverse or contrary to the interests of the client, or from acting for the fiduciary’s own benefit in relation to the subject matter of their relationship. The client is entitled to the best efforts of the fiduciary on the client’s behalf, and the fiduciary must exercise skill, care and diligence when acting on behalf of the client. A person acting in a fiduciary capacity is required to make truthful and complete disclosures to those to whom a fiduciary obligation is owed, and the fiduciary is forbidden to obtain an unreasonable advantage at the client’s expense. In order to recover on this claim the Plaintiff must prove each of the following facts by a preponderance of the evidence: First: That a “fiduciary” relationship existed between the parties (as that term has been defined in these instructions); Second: That the Defendant violated that fiduciary obligation by [describe the acts constituting the alleged breach of the fiduciary obligation]; and Third: That the Plaintiff suffered damages as a proximate result of that violation of the fiduciary obligation. For damage to be the proximate result of an act or course of dealing, it must be shown that such act or course of dealing played a substantial part in causing or bringing about the damage, and that, except for such conduct, the damage would not have occurred. If you find for the Plaintiff on any of the Plaintiff’s claims, you will then consider the issue of the amount of money damages to be awarded to the Plaintiff. In considering the issue of the Plaintiff’s damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff’s damages, no more and no less. Compensatory damages are not allowed as punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable. You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others: (a) [Describe Plaintiff’s theory of recoverable compensatory or economic damages] 3.3 Breach Of Fiduciary Duty SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: 1. That a “fiduciary” relationship existed between the parties (as that term has been defined in these instructions)? Answer Yes or No 2. That the Defendant violated that fiduciary obligation by [describe the acts constituting the alleged breach of the fiduciary obligation]? Answer Yes or No 3. That the Plaintiff suffered damages as a proximate result of that violation of the fiduciary obligation? Answer Yes or No [Note: If you answered No to any of the preceding Questions you need not answer any Question following or coming after the Question to which you gave an answer of No.] 4. That the Plaintiff should be awarded the following damages: [State or enumerate the elements of recoverable damages] SO SAY WE ALL. Foreperson DATED: