2013년 6월 11일 화요일

CV1801 Elements of fraud.

[Name of plaintiff] claims that [name of defendant] defrauded [him] by making a false [oral/written], statement of fact that caused [him] harm. To succeed in this claim, [name of plaintiff] must prove each of the following by clear and convincing evidence:

(1) [name of defendant] made a false statement about an important fact; and

(2) either [name of defendant] made the statement knowing it was false, or [he] made the statement recklessly and without regard for its truth; and

(3) [name of defendant] intended that [name of plaintiff] would rely on the statement; and

(4) [name of plaintiff] reasonably relied on the statement; and

(5) [name of plaintiff] suffered damages as a result of relying on the statement.

I will provide you with more information about each of these in the following instructions.

References

Yazd v. Woodside Homes Corp., 143 P.3d 283 (Utah 2006).
Armed Forces Insurance Exchange v. Harrison, 70 P.3d 35 (Utah 2003).
Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060 (Utah 1996).
Taylor v. Gasor, Inc., 607 P.2d 293 (Utah 1990).
Dilworth v. Lauritzen, 18 Utah 2d 386, 424 P.2d 136 (1967).
Child v. Hayward, 16 Utah 2d 351, 400 P.2d 758 (1965).
See Instruction CV118, Clear and convincing evidence.

MUJI 1st Instruction

17.1; 17.9

Committee Notes

This instruction and the instructions that follow use the term “important” rather than “material.” The Committee made this change because jurors are more likely to understand the former term, and because Utah case law defines materiality in terms of importance. See, e.g., Yazd v. Woodside Homes Corp., 143 P.3d 283 ¶ 34 (Utah 2006) (“To be material, the information must be ‘important.’”).

Although some of the instructions in this section may be useful in negligent misrepresentation cases, they do not purport to comprise a complete set of instructions for such cases.

CV1802 Elements of negligent misrepresentation.

[Name of plaintiff] claims [he] was harmed when [name of defendant] negligently misrepresented an important fact. To succeed in this claim [name of plaintiff] must prove that:

(1) [name of defendant] represented to [name of plaintiff] that an important fact was true;

(2) [name of defendant]’s representation of fact was not true;

(3) [name of defendant] failed to use reasonable care to determine whether the representation was true;

(4) [name of defendant] was in a better position than [name of plaintiff] to know the true facts;

(5) [name of defendant] had a financial interest in the transaction;

(6) [name of plaintiff] relied on the representation and it was reasonable for [him] to do so; and

(7) [name of plaintiff] suffered damage as a result of relying on the representation.

References

West v. Inter-Financial, Inc., 139 P.3d 1059, Court of Appeals (Utah 2006).
Smith v. Frandsen, 94 P.3rd 919, (Utah Sup. Ct. 2004).
Price v Orem Investment Company v. Rollins, Brown & Gunnel, Inc., 713 P.2d 55 (Utah Sup. Ct. 1986).
Jardine v. Brunswick Corporation, 423 P.2d 659 (Utah Sup. Ct. 1967).
Restatement 2d Torts, Section 552.

Committee Notes

The standard of proof for negligent misrepresentation has not been established in Utah. Because a different standard is not stated in the instruction, this instruction assumes the burden to be preponderance of the evidence, rather than clear and convincing evidence. Compare State ex rel. Nichols v. Safeco Ins. Co., 100 N.M. 440, 671 P.2d 1151, 1154, certiorari denied 100 N.M. 327, 670 P.2d 581 (1983) and Hughes v. Holt, 140 Vt. 38, 435 A.2d 687, 689. (1981) (preponderance) with Duffy v. Brown, 708 P.2d 433, 437 (Wyo.1985) (clear and convincing).

CV1803 Reckless false statement.

A false statement is made recklessly if [name of defendant] knew that [he] did not have sufficient knowledge to make the statement.

References

Kuhre v. Goodfellow, 2003 UT APP 1, 69 P.3d 286.
Prince v. Bear River Mut. Ins. Co., 2002 UT 68, 56 P.3d 524.
Rawson v. Conover, 2001 UT 24, 20 P.3d 876 (“To have made a false representation recklessly, defendants would have to know that they had insufficient knowledge upon which to base the representation made.”)

MUJI 1st Instruction

17.2

CV1804 Recovery for misrepresentation of fact.

You must decide whether the defendant’s statement was a representation of fact as opposed to an opinion. Generally, a plaintiff may recover for fraud only if the defendant’s statements were misrepresentations of facts.

References

Cerritos Trucking Co. v. Utah Venture No. 1, 645 P.2d 608 (Utah 1982).

MUJI 1st Instruction

17.3; 17.4

CV1805 Promises and statements of future performance.

A promise about a future act is a false statement of fact if [name of plaintiff] proves that [name of defendant]:

(1) never intended to keep the promise; and

(2) made the promise for the purpose of deceiving [name of plaintiff].

References

Cerritos Trucking Co. v. Utah Venture No. 1, 645 P.2d 608 (Utah 1982)
Hull v. Flanders, 83 Utah 158, 27 P.2d 56 (1933)

MUJI 1st Instruction

17.5

CV1806 Important statement of fact.

A statement of fact is important if knowing that it is false would influence a reasonable person’s judgment, or [his] decision to act or not to act.

References

Yazd v. Woodside Homes Corp., 2006 UT 47, 143 P.3d 283.
Walter v. Stewart, 2003 Utah App. 86, 67 P.3d 1042.

MUJI 1st Instruction

17.6

CV1807 Duty to speak the whole truth.

If [name of defendant] made a statement, then [he] had a duty to tell the truth about the matter, to make a fair disclosure, and to prevent a partial statement from being misleading or giving a false impression.

References

Fraud and Deceit, AmJur 2d, Section 209.

CV1808 Intent to induce reliance.

You must decide whether [name of defendant] intended [name of plaintiff] to rely on a false statement, even though [name of defendant] did not make it directly to [name of plaintiff].

[Name of defendant] intended [name of plaintiff] to rely on the false statement if

[(1) [Name of defendant] made the statement to a group of people that included [name of plaintiff]].

[(2) [Name of defendant] made the statement to another person, with the intent or the belief that it would be communicated to [name of plaintiff]].

References

Ellis v. Hale, 373 P.2d 382 (1962)

MUJI 1st Instruction

17.7

Committee Notes

The judge should instruct only on the circumstances for which there is evidence.

CV1809 Intent.

Intent ordinarily cannot be proved directly because there is no way to read people’s minds. However, you may determine intent from the surrounding circumstances and find that [name of defendant] intended the natural and probable consequences of acts done knowingly. You may consider any statement made or acts done by [name of defendant] and all other facts and circumstances that may show intent.

References

Anderson v. Kriser, 2011 UT 66 (Plaintiff must prove by clear and convincing evidence that the defendant had actual knowledge of the information that the defendant failed to disclose on a fraudulent concealment claim.)
Deseret Federal Savings and Loan Assn v. United States Fidelity & Guaranty Co., 714 P.2d 1143, 1146 (Utah 1986).
Hoffman v. Life Insurance Company of No. America, 669 P.2d 410, 420 (Utah 1983).
See Instruction CV120, Direct and circumstantial evidence.

CV1810 Reasonable reliance.

In deciding whether [name of plaintiff]’s reliance on the false statement was reasonable, you must take into account all relevant circumstances, such as [his] age, mental capacity, knowledge, experience, and [his] relationship to [name of defendant].

References

Mikkelson v. Quail Valley Realty, 641 P.2d 124 (Utah 1982)
Berkeley Bank for Coops. v. Meibos, 607 P.2d 1369 (Utah 1980)

MUJI 1st Instruction

17.8

CV1811 Concealment or fraudulent non-disclosure.

I have determined that [name of plaintiff] was in a [type of relationship] that gave [name of defendant] a duty to disclose an important fact to [name of plaintiff]. You must decide whether [name of defendant] failed to disclose an important fact. To establish that [name of defendant] failed to disclose an important fact, [name of plaintiff] must prove all of the following:

(1) that [name of defendant] knew [describe the important fact] and failed to disclose it to [name of plaintiff];

(2) that [name of plaintiff] did not know [describe the important fact]; and

(3) that [name of defendant]’s failure to disclose [describe the important fact] was a substantial factor in causing [name of plaintiff]’s damages.

References

Anderson v. Kriser, 2011 UT 66.
Gilbert Development Corp., v. Wardley Corp., 2010 UT App 361.
Yazd v. Woodside, 143 P.3d 283 (Utah 2006).
Moore v. Smith, 158 P.3d 561 (Utah App. 2007).

Committee Notes

This instruction should be given only if the Court has determined that a special relationship imposing the higher duty is established as a matter of law. Moore v. Smith, 158 P.3d 561 (Utah App. 2007).

CV1812 Compensatory damages.

If you decide that [name of defendant] defrauded [name of plaintiff], then you must also decide how much money is needed to fairly compensate [name of plaintiff] for any damages caused by the fraud.

You may award damages for the harm [name of plaintiff] experienced because of [name of defendant]’s fraud as long as you determine that the damages were reasonably foreseeable, and that [name of plaintiff] has proven these damages with reasonable certainty. [Name of plaintiff] claims the following damages:

[(1) the difference between the value of the property that [name of plaintiff] [bought/sold] and the value the same property would have had if [name of defendant]’s statements about it had been true.]

[(2) loss of good will;]

[(3) expenditures in mitigation of damages;]

[(4) lost earnings;]

[(5) loss of interest on loans required to finance [describe the loss]]

[(6) lost profits;]

[(7) emotional distress;]

[(8) describe other items claimed.]

References

Dugan v. Jones, 615 P.2d 1239 (Utah 1980)
Lamb v. Bangart, 525 P.2d 602 (Utah 1974)
Dilworth v. Lauritzen, 424 P.2d 136 (Utah 1967)
Restatement (Second) of Torts, § 549
Campbell v. State Farm Mutual Automobile Ins. Co., 65 P.3d 1134 (2001)
Ong International (U.S.A.) Inc., v. 11th Avenue Corp., 850 P.2d 447 (1993)
Crookston v. Fire Ins. Exch., 817 P.2d 789 (Utah 1991)

MUJI 1st Instruction

17.11

Committee Notes

The judge should instruct only on the damanges for which there is evidence. The judge should describe for the jury which of these elements of damages are economic and which are non-economic so that the jury can differentiate them in the verdict form.

This instruction expands MUJI 17.11 to address a broader range of fraud cases. This instruction states the traditional measure of damages in fraud cases involving the purchase or sale of property, as recognized in Dugan v. Jones, 615 P.2d 1239 (Utah 1980) (real estate), Lamb v. Bangart, 525 P.2d 602 (Utah 1974) (livestock), Dilworth v. Lauritzen, 424 P.2d 136 (Utah 1967) (distributorship) and others.

The instruction also includes loss suffered in reliance on a fraudulent misrepresentation, even if there is not any purchase or sale between the plaintiff and defendant. This situation is presented in a variety of cases: e.g., where the plaintiff is fraudulently induced to extend money or credit, or where the plaintiff is fraudulently induced to purchase or use an article which is inappropriate for the intended use. See Restatement (Second) of Torts § 549, and comments thereto.

CV1899 Special verdict form.

Please answer the following questions based on the instructions the court has given you.

(1) Do you find by clear and convincing evidence that [name of defendant] committed fraud on [name of plaintiff]?

Yes_____ No_____

(2) If you answered “yes” to question (1), do you find by clear and convincing evidence that such conduct was a cause of damage to [name of plaintiff]?

Yes_____ No_____

(3) If you answered “yes” to question number (2), what if any damages do you award [name of plaintiff]? (Counsel should specify the type of economic and non-economic damages so the judge can calculate prejudgment interest.)

Economic Damages $_______

Non-Economic Damages $_______

______________________ ______________________________

Date Jury Foreperson

Shale

Shale is the most abundant sedimentary rock and is in sedimentary basins worldwide.

What is Shale?

Shale is a fine-grained sedimentary rock that forms from the compaction of silt and clay-size mineral particles that we commonly call "mud". This composition places shale in a category of sedimentary rocks known as "mudstones". Shale is distinguished from other mudstones because it is fissile and laminated. "Laminated" means that the rock is made up of many thin layers. "Fissile" means that the rock readily splits into thin pieces along the laminations.

Uses of Shale

Some shales have special properties that make them important resources. Black shales contain organic material that sometimes breaks down to form natural gas or oil. Other shales can be crushed and mixed with water to produce clays that can be made into a variety of useful objects.

Conventional Oil and Natural Gas

Rock & Mineral Kits: Get a rock, mineral or fossil kit to learn more about earth materials.

Black organic shales are the source rock for many of the world's most important oil and natural gas deposits. These black shales obtain their black color from tiny particles of organic matter that were deposited with the mud from which the shale formed. As the mud was buried and warmed within the earth some of the organic material was transformed into oil and natural gas.

The oil and natural gas migrated out of the shale and upwards through the sediment mass because of their low density. The oil and gas were often trapped within the pore spaces of an overlying rock unit such as a sandstone (see illustration at right). These types of oil and gas deposits are known as "conventional reservoirs" because the fluids can easily flow through the pores of the rock and into the extraction well.

Although drilling can extract large amounts of oil and natural gas from the reservoir rock, much of it remains trapped within the shale. This oil and gas is very difficult to remove because it is trapped within tiny pore spaces or adsorbed onto clay mineral particles that make-up the shale.

Unconventional Oil and Natural Gas

In the late 1990s natural gas drilling companies developed new methods for liberating oil and natural gas that is trapped within the tiny pore spaces of shale. This discovery was significant because it unlocked some of the largest natural gas deposits in the world.

The Barnett Shale of Texas was the first major natural gas field developed in a shale reservoir rock. Producing gas from the Barnett Shale was a challenge. The pore spaces in shale are so tiny that the gas has difficulty moving through the shale and into the well. Drillers discovered that they could increase the permeability of the shale by pumping water down the well under pressure that was high enough to fracture the shale. These fractures liberated some of the gas from the pore spaces and allowed that gas to flow to the well. This technique is known as "hydraulic fracturing" or "hydrofracing".

Drillers also learned how to drill down to the level of the shale and turn the well 90 degrees to drill horizontally through the shale rock unit. This produced a well with a very long "pay zone" through the reservoir rock (see illustration at right). This method is known as "horizontal drilling".

Horizontal drilling and hydraulic fracturing revolutionized drilling technology and paved the way for developing several giant natural gas fields. These include the Marcellus Shale in the Appalachians, the Haynesville Shale in Louisiana and the Fayetteville Shale in Arkansas. These enormous shale reservoirs hold enough natural gas to serve all of the United States' needs for twenty years or more.

Shale Used to Produce Clay

Everyone has contact with products made from shale. If you live in a brick house, drive on a brick road, live a house with a tile roof or keep plants in "terra cotta" pots you have daily contact with items that were probably made from shale.

Many years ago these same items were made from natural clay. However, heavy use depleted most of the small clay deposits. Needing a new source of raw materials, manufacturers soon discovered that mixing finely ground shale with water would produce a clay that often had similar or superior properties. Today, most items that were once produced from natural clay have been replaced by almost identical items made from clay manufactured by mixing finely ground shale with water.

Shale Used to Produce Cement

Cement is another common material that is often made with shale. To make cement, crushed limestone and shale are heated to a temperature that is high enough to evaporate off all water and break down the limestone into calcium oxide and carbon dioxide. The carbon dioxide is lost as an emission but the calcium oxide combined with the heated shale makes a powder that will harden if mixed with water and allowed to dry. Cement is used to make concrete and many other products for the construction industry.

Oil Shale

Oil shale is a rock that contains significant amounts of organic material in the form of kerogen. Up to 1/3 of the rock can be solid kerogen. Liquid and gaseous hydrocarbons can be extracted from oil shale but the rock must be heated and/or treated with solvents. This is usually much less efficient than drilling rocks that will yield oil or gas directly into a well. Extracting the hydrocarbons from oil shale produces emissions and waste products that cause significant environmental concerns. This is one reason why the world's extensive oil shale deposits have not been aggressively utilized.

Oil shale usually meets the definition of "shale" in that it is "a laminated rock consisting of at least 67% clay minerals," however; it sometimes contains enough organic material and carbonate minerals that clay minerals account for less than 67% of the rock.

Composition of Shale

Shale is a rock composed mainly of clay-size mineral grains. These tiny grains are usually clay minerals such as illite, kaolinite and smectite. Shale usually contain other clay-size mineral particles such as quartz, chert and feldspar. Other constituents might include organic particles, carbonate minerals, iron oxide minerals, sulfide minerals and heavy mineral grains. These "other constituents" in the rock are often determined by the shale's environment of deposition and often determine the color of the rock.

Colors of Shale

Like most rocks, the color of shale is often determined by the presence of specific materials in minor amounts. Just a few percent of organic materials or iron can significantly alter the color of a rock.

Black and Gray Shale

A black color in sedimentary rocks almost always indicates the presence of organic materials. Just one or two percent organic materials can impart a dark gray or black color to the rock. In addition, this black color almost always implies that the shale formed from sediment deposited in an oxygen-deficient environment. Any oxygen that entered the environment quickly reacted with the decaying organic debris. If a large amount of oxygen was present the organic debris would all have decayed. An oxygen-poor environment also provides the proper conditions for the formation of sulfide minerals such as pyrite, another important mineral found in most black shales.

The presence of organic debris in black shales makes them the candidates for oil and gas generation. If the organic material is preserved and properly heated after burial oil and natural gas might be produced. The Barnett Shale, Marcellus Shale, Haynesville Shale,Fayetteville Shale and other gas producing rocks are all dark gray or black shales that yield natural gas. The Bakken Shale of North Dakota and the Eagle Ford Shale of Texas are examples of shales that yield oil.

Gray shales sometimes contain a small amount of organic matter. However, gray shales can also be rocks that contain calcareous materials or simply clay minerals that result in a gray color.

Red, Brown and Yellow Shale

Shales that are deposited in oxygen-rich environments often contain tiny particles of iron oxide or iron hydroxide minerals such ashematite, goethite or limonite. Just a few percent of these minerals distributed through the rock can produce the red, brown or yellow colors exhibited by many types of shale. The presence of hematite can produce a red shale. The presence of limonite or goethite can produce a yellow or brown shale.

Green Shale

Green shales are occasionally found. This should not be surprising because some of the clay minerals and micas that make up much of the volume of these rocks are typically a greenish color.

Hydraulic Properties of Shale

Hydraulic properties are characteristics of a rock such as permeability and porosity that reflect its ability to hold and transmit fluids such as water, oil or natural gas.

Shale has a very small particle size so the interstitial spaces are very small. In fact they are so small that oil, natural gas and water have difficulty moving through the rock. Shale can therefore serve as a cap rock for oil and natural gas traps and it also is an aquiclude that blocks or limits the flow of underground water.

Although the interstitial spaces in a shale are very small they can take up a significant volume of the rock. This allows the shale to hold significant amounts of water, gas or oil but not be able to effectively transmit them because of the low permeability. The oil and gas industry overcomes these limitations of shale by using horizontal drilling and hydraulic fracturing to create artificial porosity and permeability within the rock.

Some of the clay minerals that occur in shale have the ability to absorb or adsorb large amounts of water, natural gas, ions or other substances. This property of shale can enable it to selectively and tenaciously hold or freely release fluids or ions.

Engineering Properties of Shale Soils

Shales and the soils derived from them are some of the most troublesome materials to build upon. They are subject to changes in volume and competence that generally make them unreliable construction substrates.

Expansive Soils

The clay minerals in some shale-derived soils have the ability to absorb and release large amounts of water. This change in moisture content is usually accompanied by a change in volume which can be as much as several percent. These materials are called "expansive soils". When these soils become wet they swell and when they dry out they shrink. Buildings, roads, utility lines or other structures placed upon or within these materials can be weakened or damaged by the forces and motion of volume change. Expansive soils are one of the most common causes of foundation damage to buildings in the United States.

Slope Stability

Shale is the rock most often associated with landslides. Weathering transforms the shale into a clay-rich soil which normally has a very low shear strength - especially when wet. When these low-strength materials are wet and on a steep hillside they can slowly or rapidly move down slope. Overloading or excavation by humans will often trigger failure.

Environments of Shale Deposition

An accumulation of mud begins with the chemical weathering of rocks. This weathering breaks the rocks down into clay minerals and other small particles which often become part of the local soil. A rainstorm might wash tiny particles of soil from the land and into streams, giving the streams a "muddy" appearance. When the stream slows down or enters a standing body of water such as a lake, swamp or ocean the mud particles settle to the bottom. If undisturbed and buried this accumulation of mud might be transformed into a sedimentary rock known as "mudstone". This is how most shales are formed.

Contributor: Hobart King

IGNEOUS ROCKS
Andesite	Basalt	Diorite	Gabbro
Granite	Obsidian	Pegmatite	Peridotite
Pumice	Rhyolite	Scoria	Tuff
METAMORPHIC ROCKS
Amphibolite	Gneiss	Hornfels	Marble
Novaculite	Phyllite	Quartzite	Schist
Slate	Soapstone
SEDIMENTARY ROCKS
Breccia	Chert	Coal	Conglomerate
flint	Iron Ore	Limestone	Oil Shale
Rock Salt	Sandstone	Shale	Siltstone