Free Proposed Jury Instructions - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 01-cv-01807-MSK-MJW BANK ONE, N.A., (Successor to Bank One, Colorado, N.A.) and BANK ONE TRUST COMPANY, N.A., as Trustee of the Dora Lucille Jamison Trust and the Jamison Family Trust, Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners and JOHNNY ON THE SPOT, INC., Defendants.

BOULDER CLEANERS, INC., and JOHN'S CLEANERS, INC. Cross-Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners, Cross-Defendant.

PROPOSED JURY INSTRUCTIONS AND VERDICT FORMS

Pursuant to MSK Practice Standards (Civil) IV.E.4, Plaintiffs Bank One, N.A. and Bank One Trust Company, N.A. (collectively, "Plaintiffs"), and Defendants C.V.Y. Corporation, d/b/a Your Valet Cleaners, and Johnny on the Spot, Inc. (collectively, "Defendants"), submit the following proposed jury instructions and verdict forms to be used at trial in this case.

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Plaintiffs' proposed instructions and verdict forms are found at pages 1 through 31. Defendants' proposed instructions and verdict forms are found at pages 32 through 167. The text of the proposed instructions in normal font is stipulated by the parties, the portions of text in italic font are objected to by Plaintiffs, and the portions of text in bold font are objected to by Defendants. The bases for the parties' objections are explained below each proposed instruction or verdict form. Dated: June 25, 2007. Respectfully submitted, MONTGOMERY, KOLODNY, AMATUZIO & DUSBABEK, L.L.P. DAVIS GRAHAM & STUBBS LLP

By s/ C. Michael Montgomery C. Michael Montgomery Max K. Jones, Jr. 1775 Sherman St., 21st Floor Denver, Colorado 80203 Telephone: (303) 592-6600 Fax: (303) 592-6666 E-mail: [email protected] [email protected] Attorneys for the Defendants C.V.Y. Corporation, d/b/a Your Valet Cleaners, and Johnny on the Spot, Inc.

By s/ Jonathan W. Rauchway Laura J. Riese Jonathan W. Rauchway 1550 Seventeenth Street, Suite 500 Denver, Colorado 80202 Telephone: (303) 892-9400 Facsimile: (303) 893-1379 E-mail: [email protected] Attorneys for Plaintiffs Bank One, N.A., and Bank One Trust Company, N.A.

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PLAINTIFFS' PROPOSED INSTRUCTIONS AND VERDICT FORMS WITH DEFENDANTS' OBJECTIONS

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INSTRUCTION NO. ___ The Court will now explain the claims and defenses of each party to the case and the law governing the case. Please pay close attention to these instructions. These instructions include both general instructions and instructions specific to the claims and defenses in this case. You must consider all the general and specific instructions together. You must all agree on your verdict, applying the law to the facts as you find them to be. The parties to this case are the plaintiffs, Bank One, NA. ("Bank One") and Bank One Trust Company, N.A. ("Bank One Trust"), as the Trustee of the Dora Lucille Jamison Trust and the Jamison Family Trust (together, "Plaintiffs") and Defendants C.V.Y. Corporation, d/b/a Your Valet Cleaners ("CVY Corporation") and Johnny on the Spot, Inc. ("JOS") (together, "Defendants"). Plaintiffs claim that Defendants CVY and JOS released the dry cleaning solvent perchloroethylene (usually called "PCE" for short) into the soil and groundwater from their former dry cleaning store at 2520 Broadway in Boulder, Colorado (sometimes referred to as "the Property"). Plaintiffs also claim that the PCE contamination left the Property and entered the groundwater of surrounding properties. Both Plaintiffs allege against both Defendants claims of negligence and trespass. Plaintiff Bank One, N.A. also alleges breach of contract against Defendant CVY Corporation. Plaintiff Bank One, N.A. claims that as a result of releases of PCE it has suffered damages in the form of investigation costs, cleanup costs, and attorneys' fees and costs (including expert witness fees) and seeks these costs including past interest accrued up to the date of trial. Plaintiff Bank One Trust claims that as a result of the releases of PCE it has suffered damages in the form of

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lost rents and response costs including past interest accrued up to the date of trial. Plaintiffs also seek an award of punitive damages. Plaintiffs also assert claims under two federal environmental laws, the Comprehensive Environmental Response, Compensation and Liability Act, called "CERCLA," and the Resource Conservation and Recovery Act, called "RCRA." You will hear some testimony concerning the requirements of these laws, but whether Defendants are liable under CERCLA and RCRA will be decided by the Judge, not by you. Defendants CVY Corporation and Johnny on the Spot, Inc. deny that they are liable to either the Plaintiffs, Bank One, N.A. and Bank One Trust Company, N.A. Further, CVY and JOS assert the separate and/or affirmative defenses of the statute of limitations; accord and satisfaction; release; comparative negligence; negligence of nonparties; failure to mitigate; and novation. In addition Defendants assert that in 1991 Plaintiffs or their predecessors released their claims against CVY and JOS. Further, CVY and JOS dispute the amounts which Plaintiffs claim as damages. ________________________ Source: CJI-Civ. (4th ed.) 2:1 (2006) (modified). Defendants object to the bolded portion of this instruction that references punitive damages on the grounds that the evidence does not support such claim. Defendants further object to the bolded last sentence of the first full paragraph above and propose that such sentence be deleted or, in the alternative, that it be changed to read: "You will be asked to render an advisory verdict concerning these claims." Finally, Defendants object to the bolded last paragraph above as containing an inadequate and incomplete description of Defendants' defenses. Defendants have submitted an alternative version of this paragraph.

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INSTRUCTION NO. ____ For Plaintiff Bank One or Bank One Trust, or both, to recover from one or both Defendants on the claim of negligence, you must find that all of the following have been proved by a preponderance of the evidence: 1. 2. 3. Either Plaintiff Bank One or Bank One Trust, or both, incurred damages; Defendant CVY Corporation or JOS, or both, were negligent; and The negligence of one or both Defendants was a cause of either Bank One's

damages or Bank One Trust's damages, or both Bank One's damages and Bank One Trust's damages. If you find that any one or more of these three statements has not been proved by a preponderance of the evidence as to a Defendant, then your verdict must be for that Defendant. On the other hand, if you find that all of these statements have been proved by either or both Plaintiffs against either or both Defendants by a preponderance of the evidence, then you must consider the Defendants' affirmative defenses of statute of limitations, comparative negligence, negligence of designated nonparties Marlowe Cleaners and/or The Dugout, Inc., or failure to mitigate. However, if you find that none of these affirmative defenses have been proved as to either or both Plaintiffs, then your verdict must be for either or both Plaintiffs. ________________________ Source: CJI-Civ. (4th ed.) 9:1 (2002) (modified). Defendants object to this proposed instruction because it combines claims and defenses of both Plaintiffs and both Defendants, and because the last two paragraphs have the potential to confuse the jury. Alternative instructions which remedy these objections have been proposed by Defendants.

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INSTRUCTION NO. ___ Negligence means a failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect oneself or others from property damage or financial loss. _________________________ Source: CJI-Civ. (4th ed.) 9:6 (2002) (modified). Defendants object to the bolded phrase as being misleading in the context of this case and also to the failure to include a second sentence: "What is a reasonable standard of care must be determined in the light of what was apparent at the time of the act or omission not what is apparent in hindsight." An alternative instruction which remedies these objections has been proposed by Defendants.

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INSTRUCTION NO. ___ One carrying on an inherently dangerous activity such as the handling of toxic chemicals must exercise the highest possible degree of skill, care, caution, diligence and foresight with regard to that activity, according to the best technical, mechanical and scientific knowledge and methods which are practical and available at the time of the claimed conduct which caused the claimed injury. The failure to do so is negligence. _______________________ Source: CJI-Civ. (4th ed.) 9:7 (2002) (modified). Defendants object to this instruction on the grounds that the evidence will not support the same.

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INSTRUCTION NO. ______ Reasonable care is that degree of care which a reasonably careful person would use under the same or similar circumstances.

________________________ Source: CJI-Civ. (4th ed.) 9:8 (2002).

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INSTRUCTION NO. ___ The word "cause" as used in these instructions means an act or failure to act that in natural and probable sequence produced the claimed injury. It is a cause without which the claimed injury would not have happened. If more than one act or failure to act contributed to the claimed injury, then each act or failure to act may have been a cause of the injury. A cause does not have to be the only cause or the last or nearest cause. It is enough if the act or failure to act joins in a natural and probable way with some other act or failure to act to cause some or all of the claimed injury.

__________________________ Source: CJI-Civ. (4th ed.) 9:20 (2002).

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INSTRUCTION NO. ___ If you find that either Plaintiff had damages and that the damages were caused by the negligence or fault of both of the Defendants, or one or both of the Defendants and that of a nonparty, then you must determine to what extent the negligence or fault of each contributed to the damages of the Plaintiff(s), expressed as a percentage of 100 percent. _________________________ Source: CJI-Civ. (4th ed.) 9:29 (2002) (modified). Defendants object to this instruction unless it adds between the word "Defendants" and "and" near the end of the second line the phrase: ". . . and/or one or both Plaintiffs and/or . . ." and deletes the word "that" from the end of the second line.

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INSTRUCTION NO. __ The affirmative defense of the negligence or fault of nonparty, Marlowe Cleaners or The Dugout, Inc., is proved if you find all of the following: 1. 2. damages. ________________________ Source: CJI-Civ. (4th ed.) 9:24 (2002) (modified). Defendants object to this instruction because it combines both Plaintiffs' claims. In addition, it omits reference to John's Cleaners, Inc. or Boulder Cleaners, Inc. who, for purposes of this trial, should be deemed "nonparties." Defendants have proposed alternative instructions which remedy these objections. The nonparty was negligent or at fault; and The negligence or fault of the nonparty was a cause of the Plaintiffs' claimed

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INSTRUCTION NO. ___ For Plaintiffs Bank One or Bank One Trust, or both, to recover from one or both of the Defendants on the claim of trespass, you must find that both of the following have been proved by a preponderance of the evidence: 1. property; and, 2. Defendant CVY Corporation or JOS, or both, intentionally caused PCE to come Bank One or Bank One Trust was either an owner of or in lawful possession of

upon that property. If you find that either one of these statements has not been proved, then your verdict must be for the Defendant for which the statements were not proved. On the other hand, if you find that both of these statements have been proved, then you must consider Defendants' affirmative defenses of statute of limitations and failure to mitigate damages. If you find that these affirmative defenses have been proved by a preponderance of the evidence, then your verdict must be for the Defendants. However, if you find that none of these affirmative defenses have been proved as to either or both Plaintiffs, then your verdict must be for either or both Plaintiffs. _________________________ Source: CJI-Civ. 4th 18:1 (2006) (modified); Hoery v. U.S., 64 P.3d 214, 217-18 (Colo. 2003) (trespass claim based upon migrating chemicals).

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INSTRUCTION NO. __ A person intentionally causes PCE to come upon property when it is his or her purpose to cause PCE to come upon property, or when it is his or her purpose to do the act that in the natural course of events results in PCE coming upon the property.

________________________ Source: CJI-Civ. (4th ed.) 18:2 (2006) (modified); Hoery v. U.S., 64 P.3d 214, 217-18 (Colo. 2003) (actor who sets in motion a force which, in the usual course of events, will damage property of another is liable for trespass).

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INSTRUCTION NO. ___ For Plaintiff Bank One to recover from Defendant CVY Corporation on its claim of breach of contract, you must find all of the following have been proved by a preponderance of the evidence: 1. Defendant CVY Corporation entered into a contract with Plaintiff Bank One,

N.A. to lease the Property; 2. 3. Defendant CVY Corporation failed to perform its obligations under the lease; and Plaintiff Bank One substantially performed its part of the lease.

If you find that any one or more of these three statements has not been proved, then your verdict must be for the Defendant CVY Corporation. On the other hand, if you find that all of these three statements have been proved, then you must consider the affirmative defenses of statute of limitations, accord and satisfaction, release, novation, or failure to mitigate. If you find that any or more of these affirmative defenses have been proved by a preponderance of the evidence, then your verdict must be for Defendant CVY Corporation. However, if you find that none of these affirmative defenses have been proved, your verdict must by for the Plaintiff, Bank One. _______________________ Source: CJI-Civ. (4th ed.) 30:1 (2002) (modified). Defendant objects to the bolded paragraph of this instruction because it does not reference the defenses of "waiver," "estoppel" and "inducing a breach as constituting estoppel."

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INSTRUCTION NO. __ You must accept the following facts as true: 1. Gerald and Lorraine Marlowe sold their laundry and dry cleaning business located

at 2520-2524 Broadway in Boulder, Colorado (the "Property") to CVY on April 3, 1967. 2. CVY accepted an assignment of the Marlowes' lease of the Property dated

February 26, 1965 and continued to lease the property until April 8, 1991. 3. On January 9, 1978, title to the Property at 2520-2550 Broadway in Boulder,

Colorado was transferred from Jamison Properties, Inc. to First National Bank in Boulder as Trustee of the Dora Lucille Jamison Marital Trust and Jamison Family Trust (hereinafter, "Bank One Trust"). 4. On March 1, 1979, Bank One Trust entered in to a Master Lease with Bank One

for the Property located at 2520-2550 Broadway subject to CVY's existing lease of the property dated June 1, 1975. The Master Lease terminated on February 28, 1999. 5. 6. JOS merged into CVY effective December 31, 1985. PURUS, Inc., conducted dry cleaning operations at the Property during CVY's

lease term between January 1, 1986, and April 8, 1991. 7. PURUS, Inc., subsequently entered into a lease of the Property with Bank One

dated May 1, 1991. 8. PURUS, Inc., sold the dry cleaning business at the Property to the Dugout, Inc.,

on September 20, 1991 and assigned its lease to The Dugout, Inc. 9. One. On May 1, 1993, The Dugout, Inc., entered into a lease of the property with Bank

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10.

The Dugout, Inc., operated a dry cleaning business at the property from

September 30, 1991, until July 1, 1993. 11. On July 1, 1993, The Dugout, Inc., was reorganized and split into two

corporations known as Boulder Cleaners, Inc., and John's Cleaners, Inc. 12. PURUS, Inc., used, stored, and handled PCE in its dry cleaning operations at the

Property between January 1, 1986, and September 30, 1991. 13. The Dugout, Inc., used, stored, and handled PCE in its dry cleaning operation at

the property between September 30, 1991, and July 1, 1993. 14. RCRA identifies PCE as a hazardous waste. 42 U.S.C. § 6903(5), 40 C.F.R. §

261, Appx. VII. 15. CERCLA identifies PCE as a hazardous substance. 42 U.S.C. § 9601(14), 40

C.F.R. § 302.4.

________________________ Source: May 25, 2007 Pretrial Order.

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INSTRUCTION NO. ___ If you find in favor of Plaintiff Bank One or Bank One Trust, or both, on their claims of trespass or negligence, then you shall consider whether Bank One or Bank One Trust, or both, should recover punitive damages against one or both Defendants. If you find beyond a reasonable doubt that one or both Defendants acted in a willful and wanton manner, in causing Bank One or Bank One Trust's damages, you shall determine the amount of punitive damages, if any, that Bank One or Bank One Trust should recover. Punitive damages, if awarded, are to punish the defendant and to serve as an example to others. __________________________ Source: CJI-Civ. (4th ed.) 5:3 (2005) (modified). Defendants object to this instruction because the evidence is insufficient to support a punitive damage claim.

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INSTRUCTION NO. ___

"Reasonable doubt" means a doubt based upon reason and common sense which arises from a fair and thoughtful consideration of all the evidence, or the lack of evidence, in the case. It is not a vague, speculative or imaginary doubt, but one that would cause reasonable persons to hesitate to act in matters of importance to themselves. __________________________ Source: CJI-Civ. (4th ed.) 3:3 (2006) (modified); see also CJI-Civ. (4th ed.) 5:3, n. 1 (2005). Defendants object to this instruction because the evidence is insufficient to support a punitive damage claim.

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INSTRUCTION NO. ___

"Willful and wanton conduct" means an act or omission purposefully committed by a person who must have realized that the conduct was dangerous, and which conduct was done heedlessly and recklessly, either without regard to the consequences, or without regard to the rights and safety of others, particularly the Plaintiffs. _________________________ Source: CJI-Civ. (4th ed.) 9:30 (2002) (modified); see also CJI-Civ. (4th ed.) 5:3, n. 1 (2005). Defendants object to this instruction because the evidence is insufficient to support a punitive damage claim.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 01-cv-01807-MSK-MJW BANK ONE, N.A., (Successor to Bank One, Colorado, N.A.) and BANK ONE TRUST COMPANY, N.A., as Trustee of the Dora Lucille Jamison Trust and the Jamison Family Trust, Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners and JOHNNY ON THE SPOT, INC., Defendants.

BOULDER CLEANERS, INC., and JOHN'S CLEANERS, INC. Cross-Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners, Cross-Defendant.

SPECIAL VERDICT FORM A

You are instructed to answer the following questions. You must all agree on your answers to each question. We, the jury, present our Answers to Questions submitted by the Court, to which we have all agreed:

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1.

Do you find that Plaintiff Bank One, N.A., is entitled to recover damages

from the Defendant, C.V.Y. Corporation, on its claim of negligence under Instruction No. ___? ANSWER:_________(Yes or No) 2. Do you find that Plaintiff Bank One, N.A., is entitled to recover damages

from the Defendant, Johnny on the Spot, Inc., on its claim of negligence under Instruction No. ___? ANSWER:_________(Yes or No) 3. Do you find that Plaintiff Bank One Trust Company, N.A., is entitled to

recover damages from the Defendant, C.V.Y. Corporation, on its claim of negligence under Instruction No. ___? ANSWER:_________(Yes or No) 4. Do you find that Plaintiff Bank One Trust Company, N.A., is entitled to

recover damages from the Defendant, Johnny on the Spot, Inc., on its claim of negligence under Instruction No. ___? ANSWER:_________(Yes or No) If you answered all of the above questions "No", stop here and each of you must sign this Verdict Form A below. On the other hand, if you answered "Yes" to any or all of the above questions, then answer the following questions: 5. Do you find that designated non-party, Marlowe Cleaners, was negligent or

at fault in causing Plaintiffs' injuries as set forth in Instruction No. ___? ANSWER:_________(Yes or No)

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6.

Do you find that designated non-party, The Dugout, Inc., was negligent or at

fault in causing Plaintiffs' injuries as set forth in Instruction No. ___? ANSWER:_________(Yes or No) 7. Taking as 100 percent the combined negligence or fault that caused the

Plaintiffs' damages, what percentage of the Plaintiffs' damages was caused by the negligence or fault, if any, of Defendant C.V.Y. Corporation, Defendant Johnny on the Spot, Inc., designated non-party Marlowe Cleaners, and designated non-party The Dugout, Inc.? Enter the figure zero, "0", for any defendant or nonparty you decide was not negligent or did not cause Plaintiffs' damages. ANSWER: Percentage charged to C.V.Y. Corporation _________%

Percentage charged to Johnny on the Spot, Inc. _________% Percentage charged to Marlowe Cleaners Percentage charged to The Dugout, Inc. MUST TOTAL: 8. _________% _________% 100%

State the total amount of Plaintiffs' damages caused by the combined

negligence or fault of the Defendants (C.V.Y. Corporation and Johnny on the Spot, Inc.) and the designated non-parties (Marlowe Cleaners and The Dugout, Inc.). ANSWER: $_____________________ 9. Do you find beyond a reasonable doubt that the actions of Defendant C.V.Y.

Corporation were committed in a willful and wanton manner, under Instruction No. ___? ANSWER: __________ (Yes or No) If your answer to Question 9 is "No", proceed to Question 11.

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10.

If your answer to Question 9 is "Yes," what amount do you award as

punitive damages against C.V.Y. Corporation? ANSWER: $_______________ 11. Do you find beyond a reasonable doubt that the actions of Defendant Johnny

on the Spot, Inc., were committed in a willful and wanton manner, under Instruction No. ___? ANSWER: __________ (Yes or No) If your answer to Question 11 is "No" and you have answered all of the above questions, stop here and sign this Verdict Form A below. 12. If your answer to Question 11 is "Yes," what amount do you award as

punitive damages against Johnny on the Spot, Inc.? ANSWER: $_______________

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After completing Question 12, you each must sign this Verdict Form A below.

_______________________________ Foreperson __________________________

__________________________

__________________________

__________________________

__________________________

AFTER EACH JUROR HAS SIGNED THIS VERDICT FORM A, YOU SHOULD CONTINUE TO VERDICT FORM B. _______________________

Source: CJI-Civ. (4th ed.) 4:20 (2006) (modified); CJI-Civ. (4th ed.) 9:29B (2002) (modified). Defendants' Objection: Plaintiffs' Proposed Verdict Forms are incomplete as they do not reference all claims and/or defenses and/or relevant parties and may lead to duplicative damages being awarded on various claims. See Defendants' Proposed Verdict Form.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 01-cv-01807-MSK-MJW BANK ONE, N.A., (Successor to Bank One, Colorado, N.A.) and BANK ONE TRUST COMPANY, N.A., as Trustee of the Dora Lucille Jamison Trust and the Jamison Family Trust, Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners and JOHNNY ON THE SPOT, INC., Defendants.

BOULDER CLEANERS, INC., and JOHN'S CLEANERS, INC. Cross-Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners, Cross-Defendant.

SPECIAL VERDICT FORM B

We, the jury, present our Answers to Questions submitted by the Court, to which we have all agreed: 1. Do you find that Plaintiff Bank One, N.A., is entitled to recover damages

from the Defendant, C.V.Y. Corporation, on its claim of trespass, under Instruction No. ___?

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ANSWER:_________(Yes or No) If your answer to Question 1 is "No", proceed to Question 3. 2. If your answer to Question 1 is "Yes", enter the amount of damages you

award to Bank One, N.A., on its trespass claim against C.V.Y. Corporation. ANSWER: $_______________ 3. Do you find that Plaintiff Bank One, N.A., is entitled to recover damages

from the Defendant, Johnny on the Spot, Inc., on its claim of trespass, under Instruction No. ___? ANSWER:_________(Yes or No) If your answer to Question 3 is "No", proceed to Question 5. 4. If your answer to Question 3 is "Yes", enter the amount of damages you

award to Bank One, N.A., on its trespass claim against Johnny on the Spot, Inc. ANSWER: $_______________ 5. Do you find that Plaintiff Bank One Trust Company, N.A., is entitled to

recover damages from the Defendant, C.V.Y. Corporation, on its claim of trespass, under Instruction No. ___? ANSWER:_________(Yes or No) If your answer to Question 5 is "No", proceed to Question 7. 6. If your answer to Question 5 is "Yes", enter the amount of damages you

award to Bank One Trust Company, N.A., on its trespass claim against C.V.Y. Corporation. ANSWER: $_______________

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7.

Do you find that Plaintiff Bank One Trust Company, N.A., is entitled to

recover damages from the Defendant, Johnny on the Spot, Inc., on its claim of trespass, under Instruction No. ___? ANSWER:_________(Yes or No) If your answer to Question 7 is "No", proceed to Question 9. 8. If your answer to Question 7 is "Yes", enter the amount of damages you

award to Bank One Trust Company, N.A., on its trespass claim against Johnny on the Spot, Inc. ANSWER: $_______________ 9. If your answer to either Question 1 or Question 5 is "Yes," do you find

beyond a reasonable doubt that the actions of Defendant C.V.Y. Corporation were committed in a willful and wanton manner, under Instruction No. ___? ANSWER: __________ (Yes or No) If your answer to Question 9 is "No", proceed to Question 11. 10. If your answer to Question 9 is "Yes," what amount do you award as

punitive damages against C.V.Y. Corporation? ANSWER: $_______________ 11. If your answer to either Question 3 or Question 7 is "Yes," do you find

beyond a reasonable doubt that the actions of Defendant Johnny on the Spot, Inc., were committed in a willful and wanton manner, under Instruction No. ___? ANSWER: __________ (Yes or No) If your answer to Question 11 is "No" and you have answered all of the above questions, stop here and each of you must sign this Verdict Form B below.

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12.

If your answer to Question 11 is "Yes," what amount do you award as

punitive damages against Johnny on the Spot, Inc.? ANSWER: $_______________

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After completing Question 12, you each must sign this Verdict Form B below.

______________________________ Foreperson _________________________

_________________________

__________________________

__________________________

__________________________

AFTER EACH JUROR HAS SIGNED THIS VERDICT FORM B, YOU SHOULD CONTINUE TO VERDICT FORM C.

________________________ Source: See CJI-Civ. (4th ed.) 4:7 (2006) (modified). Defendants' Objection: Plaintiffs' Proposed Verdict Forms are incomplete as they do not reference all claims and/or defenses and/or relevant parties and may lead to duplicative damages being awarded on various claims. See Defendants' Proposed Verdict Form.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 01-cv-01807-MSK-MJW BANK ONE, N.A., (Successor to Bank One, Colorado, N.A.) and BANK ONE TRUST COMPANY, N.A., as Trustee of the Dora Lucille Jamison Trust and the Jamison Family Trust, Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners and JOHNNY ON THE SPOT, INC., Defendants.

BOULDER CLEANERS, INC., and JOHN'S CLEANERS, INC. Cross-Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners, Cross-Defendant.

SPECIAL VERDICT FORM C

We, the jury, present our Answers to Questions submitted by the Court, to which we have all agreed: 1. Do you find that Plaintiff Bank One, N.A., is entitled to recover damages

from the Defendant, C.V.Y. Corporation, on its claim of breach of contract, under Instruction No. ___?

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ANSWER:_________(Yes or No) If your answer to Question 1 is "No", stop here and you each must sign this Verdict Form C below. 2. If your answer to Question 1 is "Yes", enter the amount of damages you

award to Bank One, N.A., on its breach of contract claim against C.V.Y. Corporation. ANSWER: $_______________

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After answering Question 2, you each must sign this Verdict Form C below.

__________________________________ Foreperson ____________________________

____________________________

____________________________

____________________________

____________________________

AFTER YOU HAVE COMPLETED AND SIGNED VERDICT FORM A, VERDICT FORM B, AND VERDICT FORM C, YOU SHOULD GIVE ALL VERDICT FORMS TO THE BAILIFF. ________________________ Source: See CJI-Civ. (4th ed.) 4:7 (2006) (modified). Defendants' Objection: Plaintiffs' Proposed Verdict Forms are incomplete as they do not reference all claims and/or defenses and/or relevant parties and may lead to duplicative damages being awarded on various claims. See Defendants' Proposed Verdict Form.

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DEFENDANTS' PROPOSED INSTRUCTIONS AND VERDICT FORMS WITH PLAINTIFFS' OBJECTIONS

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INSTRUCTION NO. ___ Defendants CVY Corporation and Johnny on the Spot, Inc. deny that they are liable to either the Plaintiffs, Bank One, N.A. or Bank One Trust Company. Further, CVY and JOS assert the separate and/or affirmative defenses of the statute of limitations; laches; unclean hands; accord and satisfaction; failure to mitigate; novation; waiver; estoppel; inducing a breach; failure to elect remedies; lack of standing to pursue a cost recovery claim; supervening and intervening cause, Plaintiffs' comparative fault and collateral source. In addition Defendants assert that in 1991 Plaintiffs or their predecessors released their claims against CVY and JOS. Further, CVY and JOS dispute the amounts which Plaintiffs claim as damages. In addition, CVY and JOS assert that some or all of contamination at the property was caused by the The Dugout, Inc., and its successors, Boulder Cleaners, Inc. and John's Cleaners, Inc., which occupied the property from 1991 to 1999, and by Marlowe's Cleaners, Inc. which occupied the property from 1948 to 1967. ________________________ Source: CJI-Civ. 4th 2:1 Plaintiffs' Objections: First, Defendants' instruction is an incomplete statement of CJI-Civ. 4th 2:1. It lacks the required introductory language and does not contain Plaintiffs' statement of the case. See Plaintiffs' proposed CJI-Civ. 4th 2:1. Second, Plainitffs object to the reference to Plaintiffs' "predecessors" because Defendants have incorrectly identified Plaintiffs; predecessors. Third, Defendants may not include Boulder Cleaners, Inc., and John's Cleaners, Inc. in these instruction for the reasons explained below. Fourth, Plaintiffs object to Defendants' references to unclean hands, lack of standing to pursue a cost recovery claim, and collateral source because those defenses were not asserted in the Final Pretrial Order in this case. Rockwell Int'l Corp. v. United States, ___ U.S. ___, 127 S. Ct. 1397, 1409 (2007) (claims, issues, defenses, or theories not included in the pretrial order are waived even if asserted in the pleadings). Finally, Defendants' claimed defenses of laches, inducing the breach, waiver, estoppel, failure to elect remedies, and intervening and supervening cause should not be submitted to the jury for the reasons explained in the objections to the specific instructions on those claimed defenses, which follow.

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INSTRUCTION NO. _____

You must not be influenced by sympathy, bias, or prejudice for or against any party in this case.

_______________________ Source: CJI-Civ.4th 3:14 (2003) Stipulated.

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INSTRUCTION NO. ____ Any finding of fact you make must be based on probabilities, not possibilities. You should not guess or speculate about a fact. _________________________ Source: CJI Civ. 4th 3:4 (2003). Plaintiffs' Objections: This instruction is included in the Court's "Preliminary Jury Instructions in Civil Cases," Instructions No. 3-5, and therefore Defendants' tendering of it again is duplicative, unnecessary, and wasteful of the jury's time.

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INSTRUCTION NO. ___ The parties, Bank One, N.A., Bank One Trust Company, N.A., CVY Corporation, Johnny on the Spot, Inc., are corporations and can act only through their officers and employees. Any act or omission of an officer or employee while acting within the scope of his or her employment is the act or omission of the corporation.

________________________ Source: CJI Civ. 4th 8:7 (2001). Plaintiffs' Objections: There is no issue in this case as to whether or not any employee or officer acted within the scope of his or her employment. Thus, this instruction is irrelevant, confusing, and wasteful of the jury's time.

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INSTRUCTION NO. ___ If a party fails to meet its burden of proof as to any claim or defense or if the evidence weighs so evenly that you are unable to say that there is a preponderance on either side, you must reject that claim or defense. ________________________ Source: CJI Civ. 4th 3:1 (2003). Plaintiffs' Objections: This instruction is included in the Court's "Preliminary Jury Instructions in Civil Cases," Instructions No. 6, and therefore Defendants' tendering of it again is duplicative, unnecessary, and wasteful of the jury's time.

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INSTRUCTION NO. ___ A corporation known as The Dugout, Inc. purchased the dry cleaning business at 2520 Broadway, Boulder, Colorado in September of 1991. The Dugout, Inc. thereafter split into two entities, Boulder Cleaners, Inc. and John's Cleaners, Inc. ________________________ Plaintiffs' Objections: Argumentative. Defendants provide no authority for this instruction. Further, it is improper to instruct the jury on non-stipulated facts. The jury should only be instructed as to the stipulated facts contained in the May 25, 2007 Pretrial Order at pages 245-46. Docket #472. See Plaintiffs' proposed instruction containing all stipulated facts.

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INSTRUCTION NO. ____ 1. evidence. 2. The Defendants have the burden of proving their affirmative defenses by a The Plaintiffs have the burden of proving their claims by a preponderance of the

preponderance of the evidence. 3. To prove something by a "preponderance of the evidence" means to prove that it

is more probably true than not. 4. "Burden of proof means the obligation a party has to prove its claims or defenses

by a preponderance of the evidence. 5. persuade you. The party with the burden of proof can use evidence produced by any party to

________________________ Source: CJI-Civ (4th ed.) 3:1 Plaintiffs' Objections: This instruction is included in the Court's "Preliminary Jury Instructions in Civil Cases," Instructions No. 6, and therefore Defendants' tendering of it again is duplicative, unnecessary, and wasteful of the jury's time.

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INSTRUCTION NO. ___ The predecessors to Plaintiff, Bank One, N.A. are Bank One Colorado, N.A., Jamison Properties, Inc., United Bank of Boulder, First National Bank in Boulder, N.A., Affiliated First National Bank - Boulder, and Affiliated Bankshares of Colorado, Inc. Bank One, N.A. is responsible for the acts of its predecessors. ________________________ Source: Second Amended Complaint; documents produced in discovery. Plaintiffs' Objections: Argumentative. Defendants provide no authority for this instruction. Further, it is improper to instruct the jury on non-stipulated facts. The jury should be instructed only as to the stipulated facts contained in the May 25, 2007 Pretrial Order at pages 245-46. Docket #472. See Plaintiffs' proposed instruction containing all stipulated facts. Finally, there are no facts in this case to support the inclusion of all of these entities as "predecessors" of Bank One, N.A.

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INSTRUCTION NO. ___ The predecessors to Plaintiff, Bank One Trust Company, N.A., are the Frank G. Jamison Marital Trust, the Frank G. Jamison Family Trust, the Frank G. Jamison Trust, the Dora Lucille Jamison Trust, the Jamison Family Trust, United Bank of Boulder, First National Bank in Boulder, N.A., Affiliated First National Bank - Boulder, and Affiliated Bankshares of Colorado, Inc. Bank One Trust Company, N.A. is responsible for the acts of its predecessors. ________________________ Source: Second Amended Complaint and other case filings; documents produced in discovery. Plaintiffs' Objections: Argumentative. Defendants provide no authority for this instruction. Further, it is improper to instruct the jury on non-stipulated facts. The jury should be instructed only as to the stipulated facts contained in the May 25, 2007 Pretrial Order at pages 245-46. Docket #472. See Plaintiffs' proposed instruction containing all stipulated facts. Finally, there are no facts in this case to support the inclusion of all of these entities as "predecessors" of Bank One Trust Company, N.A.

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INSTRUCTION NO. ____ Plaintiffs made claims against Boulder Cleaners, Inc. and John's Cleaners, Inc. in this lawsuit. Plaintiffs and Boulder Cleaners, Inc. and John's Cleaners, Inc. settled these claims in the year 2002. ________________________ Source: Greenemeier v. Spencer, 719 P.2d 710, 714-15 (Colo. 1986) Plaintiffs' Objections: First, this instruction is argumentative and irrelevant. Subsequent to Greenemeier v. Spencer, 719 P.2d 710 (Colo. 1986), the Colorado legislature amended C.R.S. § 13-50.5-105(1), which requires jurors to apportion fault among tortfeasors. Landsberg v. Hutshell, 837 P.2d 205, 209 (Colo. App. 1992). Because the jury instructions and verdict forms satisfy this requirement, Greenemeier has been rendered moot, and there is no need to instruct juries concerning settlement. Id.; see also Winkler v. Rocky Mountain Conference of the United Methodist Church, 923 P.2d 152, 162-63 (Colo. App. 1995) (same). Second, it is improper to instruct the jury on non-stipulated facts. The jury should be instructed only as to the stipulated facts contained in the May 25, 2007 Pretrial Order at pages 245-46. Docket #472. See Plaintiffs' proposed instruction containing all stipulated facts.

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INSTRUCTION NO. ____ A contract is an agreement between two or more persons or entities. A contract consists of (1) an offer, (2) an acceptance of that offer, and (3) must be supported by consideration. If any one of these three elements is missing, there is no contract. Each party to the contract must have understood and agreed to the essential terms of the claimed contract. You may consider the contracting parties' conduct, statements, and writings in determining whether there was an understanding. The essential terms of the contract must be definite and complete enough to allow the parties to know and understand their rights and duties under the claimed contract. If the terms are not certain, there is no contract. _________________________ Source: CJI-Civ (4th ed.) 30:2 Plaintiffs' Objections: This instruction is irrelevant to Bank One's breach of contract claim, because there is no dispute that there is a contract. May 25, 2007 Pretrial Order, #472, at 48-50 (Defendants admitting there was a lease agreement). Thus, it is confusing and wasteful of the jury's time. Plaintiffs do not object to submitting this instruction to accompany Defendants' proposed jury instruction concerning release, accord and satisfaction, or novation, however, this instruction should be given if, and only if, one or more of those defenses are allowed to be submitted to the jury.

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INSTRUCTION NO. ____ An offer is a proposal to enter into a contract on the terms stated in the offer. _______________________ Source: CJI-Civ (4th ed.) 30:3 Plaintiffs' Objections: This instruction is irrelevant to Bank One's breach of contract claim, because there is no dispute that there is a contract. May 25, 2007 Pretrial Order, Docket #472, at 48-50 (Defendants admitting there was a lease agreement). Thus, it is confusing and wasteful of the jury's time. Plaintiffs do not object to submitting this instruction to accompany Defendants' proposed jury instruction concerning release, accord and satisfaction, or novation, however, this instruction should be given if, and only if, one or more of those defenses are allowed to be submitted to the jury.

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INSTRUCTION NO. ____ An acceptance is an expression of an agreement to the same terms stated in the offer by the person to whom the offer is made. If the person to whom an offer is made changes the offer in any way, that is a counteroffer. Unless the counteroffer is accepted, no contract is made. ________________________ Source: CJI-Civ (4th ed.) 30:4 Plaintiffs' Objections: This instruction is irrelevant to Bank One's breach of contract claim, because there is no dispute that there is a contract or whether there was a counteroffer. May 25, 2007 Pretrial Order, Docket #472, at 48-50 (Defendants admitting there is a lease agreement). Thus, it is confusing and wasteful of the jury's time. Plaintiffs do not object to submitting this instruction to accompany Defendants' proposed jury instruction concerning release, accord and satisfaction, or novation, however, this instruction should be given if, and only if, one or more of those defenses are allowed to be submitted to the jury.

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INSTRUCTION NO. ____ "Consideration" is a benefit received or something given up as agreed upon between the parties. If you find that both parties to the contract have made promises to one another in the contract, then you must find that there was consideration. _______________________ Source: CJI-Civ (4th ed.) 30:5 Plaintiffs' Objections: This instruction is irrelevant to Plaintiffs' breach of contract claim, because there is no dispute that there is a contract. May 25, 2007 Pretrial Order, Docket #472, at 48-50 (Defendants admitting there is a lease agreement). Thus, it is confusing and wasteful of the jury's time. Plaintiffs do not object to submitting this instruction to accompany Defendants' proposed jury instruction concerning release, accord and satisfaction, or novation, however, this instruction should be given if, and only if, one or more of those defenses are allowed to be submitted to the jury.

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INSTRUCTION NO. ____ An oral or written contract may be changed, amended, or cancelled by oral or written agreement with the consent of all parties to the contract. _________________________ Source: CJI-Civ (4th ed.) 30:6 Plaintiffs' Objections: This instruction is irrelevant to Bank One's breach of contract claim, because there is no issue of consent to modify the agreements in this case. May 25, 2007 Pretrial Order, Docket #472, at 48-53 (no mention of oral or written modification by Defendants); Rockwell Int'l Corp. v. United States, 127 S. Ct. 1397, 1409 (2007) (claims, issues, defenses, or theories not included in the pretrial order are waived even if asserted in the pleadings). Thus, it is confusing and wasteful of the jury's time. See CJI-Civ (4th ed.) 30:6, n.1. To the extent this instruction is intended to relate to any of Defendants' affirmative defenses, it is duplicative of the instructions Defendants tendered for those specific defenses.

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INSTRUCTION NO. ____ A party has "substantially performed" or "substantially complied with" the terms of a contract if anything that was changed or not done according to the exact terms of he contract was minor; and the other party received substantially what he or she contracted for.

________________________ Source: CJI-Civ. (4th ed) 30:7 Plaintiffs' Objections: First, this instruction is irrelevant to Bank One's breach of contract claim because there is no dispute whether Plaintiffs performed under the contract. May 25, 2007 Pretrial Order, Docket #472, at 50-51 (Defendant admitting it took possession of property under lease). Second, Defendants did not plead failure to perform as required in Fed. R. Civ. P. 9(c), or include it in the May 25, 2007 Pretrial Order, and have therefore waived this defense. Rockwell Int'l Corp. v. United States, ___U.S. ___, 127 S. Ct. 1397, 1409 (2007); Fed. R. Civ. P. 9(c) (parties required to aver lack of performance with specificity and particularity); Bentley v. Cleveland Cty. Bd. of Comm'rs, 41 F.3d 600, 605 (10th Cir. 1994) ("Failure to plead an affirmative defense results in a waiver of that defense."). Finally, this instruction is confusing and wasteful of the jury's time.

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INSTRUCTION NO. ____ The statements or conduct of the parties before any dispute arose between them is an indication of what the parties intended at the time that the contract was formed. To determine what the parties intended the terms of the contract to mean, you may consider the language of the written agreement, the parties' negotiations of the contract, any earlier dealings between the parties, any reasonable expectations the parties may have had because of the promises or conduct of the other party, and any other facts and circumstances that existed at the time that the contract was formed. ________________________ Source: CJI-Civ (4th ed.) 30:12 Plaintiffs' Objections: This instruction may only be submitted to the jury when the language in the contract is ambiguous, which must be determined by the Court. See CJI-Civ (4th ed.) 30:12, n.1; Ad Two, Inc. v. City & Cty. of Denver, 9 P.3d 373, 376 (Colo. 2002) (interpretation of contract is question of law for court to decide); Pepcol Mfg. Co. v. Denver Union Corp., 687 P.2d 1310, 1314 (Colo. 1984) (only consider extrinsic evidence when provisions of contract are used in technical or special sense that is not apparent from written contract itself or the provisions are ambiguous and cannot be resolved by reference to other provisions). Here, the contract terms are clear and unambiguous, and there is no dispute otherwise. This instruction is therefore irrelevant to Bank One's breach of contract claim, and therefore will serve only to confuse the jury.

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INSTRUCTION NO. ___ Any dispute over the meaning of any unclear terms must be decided against the party who prepared the contract if the other party had no part in selecting the words written in the contract. ________________________ Source: CJI-Civ (4th ed.) 30:13 Plaintiffs' Objections: There is no dispute over the meaning of the terms of any contract at issue in this case. Therefore, this instruction is not applicable. See CJI-Civ (4th ed.) 30:13, n.2; see also objections to previous instruction.

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INSTRUCTION NO. _____ The Defendant, CVY, is not legally responsible to the Plaintiff, Bank One, N.A. on the Plaintiff Bank One, N.A.'s claim of breach of contract if the affirmative defense of inducing a breach of contract is proved. This defense is proved if you find all of the following: 1. By words or conduct, or both, the Plaintiff, Bank One, N.A. or any of its

predecessors caused CVY not to perform its obligations as required by the Lease Agreement; and 2. The Plaintiff, Bank One, N.A. or any of its predecessors actually knew, or knew

there was a substantial likelihood, its words or conduct, or both, would have that result.

________________________ Source: CJI-Civ. (4th ed.) 30:23 Plaintiffs' Objections: First, Defendants agreed in the May 25, 2007 Pretrial Order that this equitable defense will be tried to the Court. Docket #472 at 80; see also Rockwell Int'l Corp. v. United States, ___ U.S. ___, 127 S. Ct. 1397, 1409 (2007) (pretrial order governs). Therefore, no jury instruction is necessary. Second, this defense applies when the plaintiff's conduct that purportedly induced the breach occurs prior to the defendant's breach, such as when a party requests postponement of performance. C.J.I. Civ.-4th 30:23, Note 2; see also Dreier v. Sherwood, 77 Colo. 539, 542, 238 P. 38 (1925). Finally, there are no facts in this case to support such an instruction. Finally, Plaintiffs object to the reference to Plaintiffs' "predecessors" because Defendants have incorrectly identified Plaintiffs' predecessors.

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INSTRUCTION NO. _____ The Defendant, CVY, is not legally responsible to the Plaintiff, Bank One Trust Company, N.A. on the Plaintiff Bank One Trust Company, N.A.'s claim of breach of contract if the affirmative defense of inducing a breach of contract is proved. This defense is proved if you find all of the following: 1. By words or conduct, or both, the Plaintiff, Bank One Trust Company, N.A. or any

of its predecessors caused CVY not to perform its obligations as required by the Lease Agreement; and 2. The Plaintiff, Bank One Trust Company, N.A. or any of its predecessors actually

knew, or knew there was a substantial likelihood, its words or conduct, or both, would have that result.

________________________ Source: CJI-Civ. (4th ed.) 30:23 Plaintiffs' Objections: First, Bank One Trust Company, N.A. does not assert a breach of contract claim against any defendant, so this instruction is entirely unnecessary and irrelevant. Second, Plaintiffs object to the reference to Plaintiffs' "predecessors" because Defendants have incorrectly identified Plaintiffs' predecessors. See also objections to previous instruction.

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INSTRUCTION NO. ____ The Defendant, CVY Corporation, is not legally responsible on the Plaintiff Bank One, N.A.'s claim of breach of contract if the affirmative defense of estoppel is proved. This defense is proved if you find all of the following: 1. The Plaintiff, Bank One, N.A. or any of its predecessors, by their words or

conduct or by remaining silent when they had a duty to speak and protest the action of CVY represented to CVY that they were waiving, excusing, or forgiving any breach of contract; 2. 3. 4. CVY Corporation reasonably relied on that representation; CVY Corporation materially changed its position; and The change was to CVY Corporation's disadvantage.

________________________ Source: CJI-Civ (4th ed.) 30:25 Plaintiffs' Objections: First, estoppel is an equitable defense to be tried to the Court. Mesa Cty. Valley School Dist. No. 51 v. Kelsey, 8 P.3d 1200, 1206 (Colo. 2000) (estoppel is equitable defense); RTV, L.L.C. v. Grandote Int'l Ltd. Liab. Co., 937 P.2d 768, 770-71 (Colo. App. 1996) (equitable defenses are tried to the court not a jury). Defendants agreed in the May 25, 2007 Pretrial Order that the defense of estoppel will be tried to the Court. Docket #472 at 115, 232; see also Rockwell Int'l Corp. v. United States, ___ U.S. ___, 127 S. Ct. 1397, 1409 (2007) (pretrial order governs). Therefore, no jury instruction is necessary. Second, in order for this instruction to apply, the party to be estopped must know the facts and must intend that its representation be acted on, and the party asserting estoppel must be ignorant of the actual facts. Cont'l v. Jim's Hardwood, 12 P.3d 824, 828 (Colo. App. 2000); Richmond v. Grabowski, 781 P.2d 192, 195 (Colo. App. 1989); see also Premier Farm Credit, PCA v. W-Cattle, LLC, 155 P.3d 504, 522 (Colo. App. 2006) (a party may not rely on non-committal acts of another to establish equitable estoppel). There are no facts in this case that demonstrate these requirements are met. Third, Plainitffs object to the reference to Plaintiffs' "predecessors" because Defendants have incorrectly identified Plaintiffs' predecessors.

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INSTRUCTION NO. ____ The Defendant, CVY Corporation, is not legally responsible on the Plaintiff Bank One Trust Company, N.A.'s claim of breach of contract if the affirmative defense of estoppel is proved. This defense is proved if you find all of the following: 1. The Plaintiff, Bank One Trust Company, N.A. or any of its predecessors, by their

words or conduct or by remaining silent when they had a duty to speak and protest the action of CVY represented to CVY that they were waiving, excusing, or forgiving any breach of contract; 2. 3. 4. CVY Corporation reasonably relied on that representation; CVY Corporation materially changed its position; and The change was to CVY Corporation's disadvantage.

________________________ Source: CJI-Civ (4th ed.) 30:25 Plaintiffs' Objections: First, Bank One Trust Company, N.A. does not assert a breach of contract claim against any defendant, so this instruction is entirely unnecessary and irrelevant. Second, Plainitffs object to the reference to Plaintiffs' "predecessors" because Defendants have incorrectly identified Plaintiffs' predecessors. See also objections to previous instruction.

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INSTRUCTION NO. ____ The Defendant, CVY Corporation, is not legally responsible to the Plaintiff Bank One, N.A. on the Plaintiff Bank One, N.A.'s claim of breach of contract if the affirmative defense of waiver is proved. This defense is proved if you find all of the following: 1. Plaintiff Bank One, N.A. or any of its predecessors knew that CVY had not

performed its obligations under the Lease Agreement. 2. Plaintiff Bank One, N.A. or any of its predecessors knew that this failure of CVY

gave them the right to seek compensation for damages stemming from CVY's failure to protect and preserve the property; 3. and 4. Plaintiff Bank One, N.A. or any of its predecessors voluntarily gave up this right. Plaintiff Bank One, N.A. or any of its predecessors intended to give up this right;

________________________ Source: CJI-Civ (4th ed.) 30:24 Plaintiffs' Objections: First, waiver is an equitable defense triable to the Court. Mesa Cty. Valley School Dist. No. 51 v. Kelsey, 8 P.3d 1200, 1206 (Colo. 2000) (waiver is equitable defense); RTV, L.L.C. v. Grandote Int'l Ltd. Liability Co., 937 P.2d 768, 770-71 (Colo. App. 1996) (equitable defenses are tried to the court, not a jury). Defendants agreed in the May 25, 2007 Pretrial Order that the defense of waiver will be tried to the Court. Docket #472, at 93; see also Rockwell Int'l Corp. v. United States, ___ U.S. ___, 127 S. Ct. 1397, 1409 (2007) (pretrial order governs). Therefore, no jury instruction is necessary. Second, there are no facts supporting this instruction. Third, Plaintiffs object to the reference to Plaintiffs' "predecessors" because Defendants have incorrectly identified Plaintiffs' predecessors.

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INSTRUCTION NO. ____ The Defendant, CVY Corporation, is not legally responsible to the Plaintiff Bank One Trust Company, N.A. on the Plaintiff Bank One Trust Company, N.A.'s claim of breach of contract if the affirmative defense of waiver is proved. This defense is proved if you find all of the following: 1. Plaintiff Bank One Trust Company, N.A. or any of its predecessors knew that CVY

had not performed its obligations under the Lease Agreement. 2. Plaintiff Bank One Trust Company, N.A. or any of its predecessors knew that this

failure of CVY gave them the right to seek compensation for damages stemming from CVY's failure to protect and preserve the property; 3. Plaintiff Bank One Trust Company, N.A. or any of its predecessors intended to

give up this right; and 4. Plaintiff Bank One Trust Company, N.A. or any of its predecessors voluntarily

gave up this right. ________________________ Source: CJI-Civ (4th ed.) 30:24 Plaintiffs' Objections: First, Bank One Trust Company, N.A. does not assert a breach of contract claim against any defendant, so this instruction is entirely unnecessary and irrelevant. Second, Plaintiffs object to the reference to Plaintiffs' "predecessors" because Defendants have incorrectly identified Plaintiffs' predecessors. See also objections to previous instruction.

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INSTRUCTION NO. ____ The Defendant, CVY Corporation, is not legally responsible to the Plaintiff Bank One, N.A. on the Plaintiff Bank One, N.A.'s claim of breach of contract if the affirmative defense of accord and satisfaction is proved. This defense is proved if you find all of the following: 1. After CVY and the Plaintiff Bank One, N.A. or any of Bank One, N.A.'s

predecessors had entered into the Lease Agreement, they entered into a second contract in the nature of a release; 2. The Plaintiff Bank One, N.A. or any of its predecessors and CVY knew or

reasonably should have known that the second contract cancelled or changed their remaining rights and duties under the Lease Agreement; and 3. contract. ________________________ Source: CJI-Civ (4th ed.) 30:30 Plaintiffs' Objections: First, Plaintiffs object to the language "in the nature of a release" Defendants added to the model instruction in Paragraph 1. This is not proper according to the instruction, CJI-Civ. (4th ed.) 30:30, and has the effect of repeating and stating (albeit, incorrectly) the requirements for the jury to find the affirmative defense of release under CJICiv. (4th ed.) 30:31. This is an inappropriate alteration of this instruction and it is duplicative of Defendants' other instructions. Second, there are no facts in this case that support a finding that the parties entered a "second contract in the nature of a release." Third, Plaintiffs object to the reference to Plaintiffs' "predecessors" because Defendants have incorrectly identified Plaintiffs' predecessors. CVY has fully performed the duties it agreed to perform under the second

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INSTRUCTION NO. ____ The Defendant, CVY Corporation, is not legally responsible to the Plaintiff Bank One Trust Company, N.A. on the Plaintiff Bank One Trust Company, N.A.'s claim of breach of contract if the affirmative defense of accord and satisfaction is proved. This defense is proved if you find all of the following: 1. After CVY and the Plaintiff Bank One Trust Company, N.A. or any of Bank One,

N.A.'s predecessors had entered into the Lease Agreement, they entered into a second contract in the nature of a release; 2. The Plaintiff Bank One Trust Company, N.A. or any of its predecessors and CVY

knew or reasonably should have known that the second contract cancelled or changed their remaining rights and duties under the Lease Agreement; and 3. contract. _________________________ Source: CJI-Civ (4th ed.) 30:30 Plaintiffs' Objections: First, Bank One Trust Company, N.A. does not assert a breach of contract claim against any defendant, so this instruction is entirely unnecessary and irrelevant. Second, Plaintiffs object to the reference to Plaintiffs' "predecessors" because Defendants have incorrectly identified Plaintiffs' predecessors. See also objections to previous instruction. CVY has fully performed the duties it agreed to perform under the second

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INSTRUCTION NO. ____ Defendant CVY is not legally responsible to the Plaintiff Bank One, N.A. on the Plaintiff Bank One, N.A.'s claim of breach of contract if the affirmative defense of the expiration of the statute of limitations is proved. This defense is proved if you find that Plaintiff Bank One, N.A. or any of Bank One, N.A.'s predecessors knew or should have known on or before September 14, 1998 that there had been a breach of contract.

_________________________ Source: CJI-Civ. (4th ed.) 30:28, and C.R.S. § 13-80-101. Plaintiffs' Objections: There are no facts demonstrating that this instruction applies to Plaintiffs' claims. Moreover, Plaintiffs object to the reference to Plaintiffs' "predecessors" because Defendants have incorrectly identified Plaintiffs' predecessors. Therefore, this instruction is unnecessary and confusing.

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INSTRUCTION NO. ____ Defendant CVY is not legally responsible to the Plaintiff Bank One Trust Company, N.A. on the Plaintiff Bank One Trust Company, N.A.'s claim of breach of contract if the affirmative defense of the expiration of the statute of limitations is proved. This defense is proved if you find that Plaintiff Bank One Trust Company, N.A. or any of Bank One Trust Company, N.A.'s predecessors knew or should have known on or before September 14, 1998 that there had been a breach of contract.

_________________________ Source: CJI-Civ. (4th ed.) 30:28, and C.R.S. § 13-80-101. Plaintiffs' Objections: First, Bank One Trust Company, N.A. does not assert a breach of contract claim against any defendant, so this instruction is entirely unnecessary and irrelevant. Second, Plaintiffs object to the reference to Plaintiffs' "predecessors" because Defendants have incorrectly identified Plaintiffs' predecessors. See also objections to previous instruction.

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INSTRUCTION NO. ____ The Defendant, CVY Corporation, is not legally responsible to the Plaintiff Bank One, N.A. on Plaintiff Bank One