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.MCDONALD APIARY, LLC, aNebraska Limited Liability Company ,

Plaintiff ,

vs.

STARRH BEES, INC.; DALE ASHLEY; ANNE ASHLEY ; and JONATHAN GONZALEZ;

Defendant s.

STARRH BEES, INC.,

Counterclaim plaintiff ,

vs.

MCDONALD APIARY, LLC; ED MCDONALD; and SUSAN MCDONALD ;

Countercla im defendants.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

PEC l 6 .2 t5/F.P

..':)

OFFiCC CF ·,-t Jf" Clf R'.

8:14-CV-351

FINAL JURY INSTRUCTIONS

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INSTRUCTION #1:INTRODUCTION

Ladies and gentlemen of the jury , the evidence has been fully submitted to you. It is now my job to instruct you on the law to apply to this case. In a few minutes, the lawyers will present closing arguments on behalf of their respective clients and afterward, it will then be your duty to begin fully deliberating this case in the jury room .

The instructions I gave you at the beginning of the trial and during the trial remain in effect. I now give you some additional instructions.

You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now . You must not single out some instructions and ignore others, because all are important . This is true even though some of those I gave you at the beginning of trial are not repeated here.

The instructions I am about to give you now, as well as those I gave you earlier, are in writing and will be available to you in the jury room.

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INSTRUCTION #2: DUTY OF JURY

It will be your duty to decide from the evidence whether the parties have proved their claims, and whether the parties have proved their affirmative defenses. From the evidence, you will decide what the facts are. You are entitled to consider that evidence in the light of your own observations and experiences in life. You may use reason and common sense to draw deductions or conclusions from facts which have been established by the evidence. You will then apply those facts to the law which I give you in these and in my other instructions , and in that way reach your verdict . You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not .

The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you. You should not take anything I have said or done during the trial as indicating what I think of the evidence or what I think your verdict should be.

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INSTRUCTION #3: EVIDENCE

I have mentioned the word "evidence." "Evidence" includes the testimony of witnesses; documents and other things received as exhibits; and any facts that have been stipulated, that is, formally agreed to by the parties.

Certain things are not evidence. I will list those things for you now:

1. Statements, arguments, questions and comments by lawyers are not evidence.

2. Objections are not evidence. Parties have a right to object when they believe something is improper under court rules. You should not be influenced by the objection . If I sustained an objection to a question, you must ignore the question and not try to guess what the answer might have been .

3. Testimony that I struck from the record, or told you to disregard, is not evidence and must not be considered.

4. Anything you see or hear about this case outside the courtroom is not evidence.

5. Exhibits that are identified by a party but not received in evidence are not evidence.

Finally, some of you may have heard the terms "direct evidence" and "circumstantial evidence." You are instructed that you should not be concerned with those terms. The law makes no distinction between direct and circumstantial evidence. You should give all evidence the weight and value you believe it is entitled to receive.

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INSTRUCTION #4: LIMITED USE OF TECHNICAL EQUIPMENT

If, during the course of your deliberations, you need to utilize a computer to review certain evidence, you may send a note to me through the courtroom deputy, and a computer will be provided for your use. The computer may be used for the sole purpose of reviewing that evidence, and it shall be returned to me at the end of your review of the evidence.

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INSTRUCTION #5: STIPULATED FACTS

The parties have stipulated-that is, they have agreed-that the following facts are true. You must, therefore, treat these facts as having been proved.

1. The plaintiff, McDonald Apiary , LLC, is a limited liability company based in Hay Springs, Nebraska.

2. One of the defendants, Starrh Bees, Inc., is a corporation based in Shafter, California.

3. McDonald Apiary is owned and operated by Ed and Susan McDonald , who are husband and wife. Ed McDonald is a citizen of Nebraska . Susan McDonald is a citizen of Colorado .

4. Starrh Bees is owned by Anne Ashley and operated by Anne Ashley and her husband, Dale Ashley. Anne and Dale Ashley are also defendants in this case and are citizens of California .

5. Jonathan Gonzales is a foreman for Starrh Bees and is a defendant in this action. He is also a citizen of California.

6. McDonald Apiary extracted honey from honey production devices called "supers" delivered by Starrh Bees to McDonald Apiary.

7. Starrh Bees sent a demand letter dated October 24, 2014 to McDonald Apiary.

8. In 2013, McDonald Apiary and Starrh Bees entered into an oral contract for the 2014 honey season. The general agreement was that McDonald Apiary and Starrh Bees would work together on honey production in Oklahoma and Nebraska .

Some of the terms of that contract are in dispute, but the parties agree that:

a. Starrh Bees was to provide 6,000 beehives for honey production in Nebraska.

b. McDonald Apiary would provide locations to Starrh Bees for the placement of Starrh Bees' bees in and around Oklahoma and Western Nebraska.

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c. McDonald Apiary was to arrange for the transportation of Starrh Bees' hives and supers for shipment from California to Oklahoma, Oklahoma to Nebraska , and Nebraska to California . The cost of transportation would be split fifty/fifty between McDonald Apiary and Starrh Bees.

d. McDonald Apiary was to extract all of the honey from Starrh Bees' beehives in Nebraska and the surrounding areas.

e. McDonald Apiary and Starrh Bees were to evenly split, fifty-fifty, the proceeds from the sale of honey produced from Starrh Bees' beehives.

f. Both parties would cooperate to place and locate Starrh Bees' beehives in locations to maximize honey production.

g. Both parties would cooperate to place "supers" on Starrh Bees' beehives in order to facilitate collection of honey.

h. McDonald Apiary would advise Starrh Bees as to optimal beekeeping practice in McDonald Apiary's beekeeping areas in Oklahoma and Nebraska, including maintaining health of the bees and facilitating the maximum honey production .

i. McDonald Apiary would arrange the leasing of yards and/or lands where Starrh Bees' beehives would be located and placed.

J. Both parties were to cooperate and check forage locations, check blooms, and check land conditions to advise regarding ingress and/or egress.

k. McDonald Apiary alone would extract all honey from "supers" delivered by Starrh Bees to McDonald Apiary.

1. McDonald Apiary alone would store, market, and sell the honey produced from Starrh Bees' beehives.

m. Starrh Bees would provide some of the labor and materials necessary for beekeeping.

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n. Starrh Bees would follow industry standards m maintaining its hives.

o. Starrh Bees' "supers" would be returned to Starrh Bees at the end of the 2014 honey production season.

And finally. the parties agree that pursuant to their contract,

p. McDonald Apiary was to exercise reasonable care not to damage Starrh Bees' equipment and/or supers.

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I N STRUCTION #6: S U MMARY EXHIBITS

Certain charts and summaries have been shown to you in order to help explain the facts disclosed by the books, records, or other underlying evidence in the case. Those charts or summaries are used for convenience. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts shown by the evidence in the case, you should disregard those charts and summaries and determine the facts from the books, records, or other underlying evidence.

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INSTRUCTION #7: CREDIBILITY OF WITNESSES

In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.

In deciding what testimony to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe.

In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.

Some testimony was presented to you in the form of depositions, that is, answers that the witnesses made under oath to questions asked by the lawyers before trial. You should consider the deposition testimony, and judge its credibility, as you would that of any witness who testified here in person.

Some witnesses, because of education or experience, are permitted to state opinions, and the reasons for those opinions, about matters requiring special knowledge or skill. You should judge this testimony in the same way that you judge the testimony of any other witness. The fact that such person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness's qualifications, and all of the other evidence in the case.

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INSTRUCTION #8: CORPORATE PARTY

A corporation or limited liability company can act only through its employees and agents. A corporation or limited liability company is bound by the knowledge possessed by its employees and agents. It is also bound by acts or omissions of its employees that are within the scope of their employment, and by acts or omissions of its agents as are within the scope of their authority as agents.

So, if you find that Anne Ashley , Dale Ashley, or Jonathan Gonzalez are liable to McDonald Apiary on any claims, then Starrh Bees is also liable if they acted while they were agents of Starrh Bees and within the scope of their authority as agents of Starrh Bees. And if you find that Ed McDonald or Susan McDonald are liable to Starrh Bees, then McDonald Apiary is also liable if they acted while they were agents of McDonald Apiary and within the scope of their authority as agents of McDonald Apiary.

The fact that some parties are individuals and others are a corporation or a limited liability company must not influence your deliberations or your verdict. All the parties are entitled to the same fair and impartial consideration.

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INSTRUCTION #9: BURDEN OF PROOF

You will have to decide whether certain facts have been proved by the greater weight of the evidence. A fact has been proved by the greater weight of the evidence, if you find that it is more likely true than not true. You decide that by considering all of the evidence and deciding what evidence is more believable.

You have probably heard the phrase "proof beyond a reasonable doubt." That is a stricter standard than "more likely true than not true." It applies in criminal cases, but not in this civil case; so put it out of your mind.

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INSTRUCTION #10: MULTIPLE DEFENDANTS

There are a number of defendants and counterclaim defendants in this lawsuit. You should decide the case of each defendant separately as if it were a separate lawsuit. Unless a specific instruction states that it applies to a specific defendant, the instructions apply to each defendant.

Some of the claims and counterclaims have different defendants and counterclaim defendants. The section explaining the "Issues" for each claim and counterclaim will tell you at which defendants or counterclaim defendants each claim or counterclaim is directed.

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INSTRUCTION #11: CLAIMS NOT SUBMITTED

Certain claims and counterclaims that the parties may have referred to are no longer part of this case. You should not speculate on the reasons for that, and should render your verdict based solely on the claims and counterclaims on which I am about to instruct you.

INSTRUCTION #12: BREACH OF CONTRACT-MCDONALD APIARY

I. McDonald Apiary's Claim

A. Issues

McDonald Apiary contends that it and Starrh Bees entered into an enforceable contract for the 2014 honey season. McDonald Apiary claims that Starrh Bees breached this contract by failing to meet its obligations and conditions set forth therein. McDonald Apiary seeks judgment against Starrh Bees for these damages.

B. B urden of Proof

Before McDonald Apiary can recover against Starrh Bees on McDonald Apiary's claim of breach of contract, McDonald Apiary must prove , by the greater weight of the evidence, each and all of the following:

1. McDonald Apiary and Starrh Bees entered into a contract,

2. The terms of the contract,

3. Starrh Bees breached the contract-that is, it did not perform its duty under the contract,

4. That breach of contract was a proximate cause of some damage to McDonald Apiary , and

5. The nature and extent of that damage.

C. Principles of Law

For there to be a contract, the parties must agree to do or not to do something and the agreement must be supported by consideration. Mutual promises may constitute consideration if they are given in exchange for each other and obligate both the parties. The agreement may be written, oral, inferred from conduct, or found in some combination of ways.

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D. Effect of Findings

If McDonald Apiary has not met its burden of proof on its claim, then your verdict must be for Starrh Bees on McDonald Apiary's breach of contract claim.

On the other hand, if McDonald Apiary has met its burden of proof, then you must consider Starrh Bees' affirmative defenses.

II. Starrh Bees' Affirmative Defense of Prior Material Breach

A. Issues

Starrh Bees claims that McDonald Apiary materially breached the parties' agreement bef ore any alleged material breach by Starrh Bees.

B. Burden of Proof

In connection with this affirmative defense, Starrh Bees must prove, by the greater weight of the evidence, each and all of the following:

1. McDonald Apiary breached its contract with Starrh Bees,

2. The breach was material, and

3. McDonald Apiary's breach of the contract occurred before Starrh Bees' breach of the contract.

A "breach" is a nonperformance of a duty. Whether or not a breach is material and important is a question of degree which must be answered by weighing the consequences of the breach in light of the actual custom of persons in the performance of contracts similar to the one in this case.

C. Effect of Findings

If you find that Starrh Bees has met its burden of proof with respect to this affirmative defense, then your verdict must be for Starrh Bees on McDonald Apiary's breach of contract claim. If you find that Starrh Bees has not met its burden of proof on this affirmative defense, then you must consider Starrh Bees' next affirmative defense.

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III. Starrh Bees' Affirmative Defense of Waiver

A. Issues

Starrh Bees claims that McDonald Apiary waived the provis 10n of the contract providing for McDonald Apiary to arrange for the transportation of Starrh Bees' beehives and supers back to California.

B.Burden of Proof

In connection with this affirmative defense, Starrh Bees must prove, by the greater weight of the evidence, either of the following:

1. McDonald Apiary made an express declaration that Starrh Bees could ship its beehives and supers back to California, or

2. McDonald Apiary neglected and failed to act, so as to induce the belief that it would not enforce any requirement under the contract that McDonald Apiary, alone, would arrange transportation of Starrh Bees' hives and supers back to California.


If you find that Starrh Bees met its burden of proof with respect to this affirmative defense, then you may not find that Starrh Bees breached its contract with McDonald Apiary by arranging transportation for beehives and supers back to California, but your verdict may still be for McDonald Apiary on its breach of contract claim, if you find that Starrh Bees breached the contract in some other way.

If you find that Starrh Bees has not met its burden of proof with respect to either of its affirmative defenses, and you find that McDonald Apiary met its burden of proof on its claim, then your verdict must be for McDonald Apiary on its breach of contract claim.

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IV. Damages

If you find in favar of McDonald Apiary on its claim for breach of contract, then you must determine the amount of its damages for that claim.

The measure of damages for a breach of contract claim is an amount that would place McDonald Apiary in as good a position as it would have enjoyed if the contract had been performed -that is, you should endeavor to make McDonald Apiary whole. McDonald Apiary is also entitled to recover damages that were proximately caused by the breach and that, at the time the contract was entered into, were a foreseeable result of a breach of this nature. Damages are foreseeable if they are the kind that would ordinarily follow such a breach, or that Starrh Bees knew or should have known were likely to result from such a breach.

If you found that Starrh Bees met its burden of proof on its affirmative defense of waiver, you may not award damages for breach of contract based on Starrh Bees' transportation of its hives and supers back to California.

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INSTRUCTION #13: BREACH OF CONTRACT-STARRH BEES

I. S tarrh Bees' Counterclaim

A. Issues

Starrh Bees contends that it entered into an enforceable contract for the 2014 honey season with the counterclaim defendants-McDonald Apiary, Ed McDonald , and Susan McDonald . Starrh Bees claims that McDonald Apiary, Ed McDonald , and/or Susan McDonald breached this contract by failing to meet their obligations and conditions set forth therein. Starrh Bees seeks judgment for these damages.

B. Burden of Proof

Before Starrh Bees can recover against McDonald Apiary, Ed McDonald, or Susan McDonald on Starrh Bees' counterclaim of breach of contract, Starrh Bees must prove, by the greater weight of the evidence, each and all of the following:

1. Starrh Bees entered into a contract with McDonald Apiary, Ed McDonald, and/or Susan McDonald ,

2. The terms of the contract,

3. McDonald Apiary , Ed McDonald, and/or Susan McDonald breached the contract-that is, did not perform their duty under the contract,

4. That breach of contract was a proximate cause of some damage to Starrh Bees, and



For there to be a contract , the parties must agree to do or not to do something and the agreement must be supported by consideration. Mutual promises may constitute consideration if they are given in exchange for each other and obligate both the parties. The agreement may be written, oral, inferred from conduct, or found in some combination of ways.

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If Starrh Bees has not met its burden of proof on its counterclaim , then your verdict must be for the counterclaim defendants on Starrh Bees' breach of contract counterclaim.

On the other hand, if Starrh Bees has met its burden of proof with respect to one or more of the counterclaim defendants, then you must consider the counterclaim defendants' affirmative defense.

II. The Counterclaim Defendants' Af firmative Defense of Prior Material Breach

A. Issues

The counterclaim defendants claim that Starrh Bees materially breached the parties' agreement before any alleged material breach by McDonald Apiary, Ed McDonald , or Susan McDonald .

B.B of Proof

In connection with this affirmative defense, the counterclaim defendants must prove, by the greater weight of the evidence, each and all of the following:

1. Starrh Bees breached its contract with the counterclaim defendants,

2. The breach was material , and

3. Stai·rh Bees' breach of the contract occurred before McDonald Apiary, Ed McDonald, or Susan McDonald breached the contract.

A "breach" is a nonperformance of a duty. Whether or not a breach is material and important is a question of degree which must be answered by weighing the consequences of the breach in light of the actual custom of persons inthe performance of contracts similar to the one in this case.

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If you find that the counterclaim defendants have met their burden of proof with respect to this affirmative defense, then your verdict must be for the counterclaim defendants on Starrh Bees' breach of contract counterclaim.

If you find that the counterclaim defendants have not met their burden of proof on this affirmative defense, and that Starrh Bees met its burden of proof on its claim, then your verdict must be for Starrh Bees on its breach of contract counterclaim.

III. Damages

If you find in favor of Starrh Bees on its counterclaim for breach of contract, then you must determine the amount of its damages for that claim.

The measure of damages for a breach of contract claim is an amount that would place Starrh Bees in as good a position as it would have enjoyed if the contract had been performed-that is, you should endeavor to make Starrh Bees whole. Starrh Bees is also entitled to recover damages that were proximately caused by the breach and that, at the time the contract was entered into, were a foreseeable result of a breach of this nature . Damages are foreseeable if they are the kind that would ordinarily follow such a breach, or that the counterclaim defendants knew or should have known were likely to result from such a breach .

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INSTRUCTION #14: TRESPASS


A. Issues

McDonald Apiary claims that Jonathan Gonzalez came onto McDonald Apiary's property without permission and damaged McDonald Apiary's property.

B. Burden of Proof

Before McDonald Apiary can recover against Jonathan Gonzalez on its trespass claim, McDonald Apiary must prove, by the greater weight of the evidence, each and all of the following:

1. McDonald Apiary had possession of the property at issue,

2. Gonzalez intentionally entered onto the property without permission, or caused another person to do so,

3. Gonzalez damaged, or caused another to damage, McDonald Apiary's property, and



If McDonald Apiary has not met its burden of proof on its claim, then your verdict must be for Jonathan Gonzalez on McDonald Apiary's trespass claim.

On the other hand, if McDonald Apiary has met its burden of proof, then your verdict must be for McDonald Apiary on its trespass claim.

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. Damages

If you find in favor of McDonald Apiary on its trespass claim, then you must determine the amount of their damages for that claim.

The measure of damages for a trespass claim is the reasonable cost of repairing the property to substantially the same condition it was in before it was damaged , as well as the market value of any property that cannot be repaired or replaced. Specifically, if you find that honey was destroyed, then McDonald Apiary may recover the value the honey would have had, minus any savings to McDonald Apiary in the cost of production and transportation to market.

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INSTRUCTION #15: TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS OR EXPECTANCIES


A. Issues

McDonald Apiary claims that Starrh Bees, Anne Ashley, Dale Ashley, and Jonathan Gonzalez interfered with its business relationships : specifically, its relationships with the owners of property where it places its beehives and with other beehive owners with whom it works for honey production or pollination.

B.Burden of Proof

Before McDonald Apiary can recover against a defendant on its claim for interference with business relationships, McDonald Apiary must prove, by the greater weight of the evidence, each and all of the following:

1. The claimed valid business relationship or expectancy existed,

2. The defendant knew the valid business relationship or expectancy existed,

3. The defendant interfered with the valid business relationship or expectancy in one or more of the ways claimed,

4. The interference was intentional,

5. The interference was unjustified,

6. The interference was a proximate cause of some damage to McDonald Apiary, and


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C.Principles of Law

For a business relationship or expectancy to be "valid", there must be evidence that there was a reasonable likelihood or probability of a business relationship. The fact that a business relationship is at-will-that is, that it may be terminated by the parties without liability-does not necessarily privilege another to unjustifiably induce the termination. The fact that the relationship is terminable at-will, however , may be taken into account in determining the damages that McDonald Apiary may have suffered by reason of the relationship's termination.

An interference with a business relationship or expectancy is "intentional" if it is done either (1) with the purpose of causing the interference, even if there was another purpose in addition, or (2) with knowledge that the interference is substantially certain to result.

To be "unjustified", an act must be independently unlawful. An intentional, but justified , act of interference, such as valid competition, cannot be the basis for a tortious interference claim. Nor is interference with a business relationship unjustified when it results from one person giving truthful information to another. Factors to consider in determining whether interference with a business relationship or expectancy is unjustified include:

(a) The nature of the defendant's conduct,(b) The defendant's motive,(c) The interests of McDonald Apiary with which the actor's conduct

interferes,(d) The interests sought to be advanced by the defendant,(e) The social interests in protecting the freedom of action of the

defendant and the contractual interests of McDonald Apiary,(f) The proximity or remoteness of the defendant's conduct to the

interference, and(g) The relations between the parties.

These are the important factors to be weighed against each other and balanced in arriving at a judgment, but they do not exhaust the list of possible factors. The issue in each case is whether or not the interference is improper under the circumstances or whether, upon a consideration of the relative significance of the factors involved, the conduct should be permitted without liability, even if it results in harm to another. This decision depends upon a judgment and choice of values in each situation.

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D: Effect of Findings

If McDonald Apiary has not met its burden of proof on its claim, then your verdict must be for Starrh Bees on McDonald Apiary's tortious interference claim.

On the other hand, if McDonald Apiary has met its burden of proof , then your verdict must be for McDonald Apiary on its tortious interference claim.

II.Damages

If you find in favor of McDonald Apiary on its tortious interference claim, then you must determine the amount of its damages for that claim.

One who is liable to another for interference with a contract or prospective contractual relation is liable for damages for (a) the pecuniary loss of the benefits of the contract or the prospective relation and (b) consequential losses for which the interference is a legal cause.

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INSTRUCTION #16: FRAUD

I: Starrh Bees' Counterclaim

A. Issues

Starrh Bees claims that the counterclaim defendants-McDonald Apiary, Ed McDonald, and Susan McDonald-defrauded Starrh Bees by misrepresenting the transportation costs for Starrh Bees' beehives.

B. Burden of Proof

Before Starrh Bees can recover against a counterclaim defendant on its fraud counterclaim, Starrh Bees must prove, by the greater weight of the evidence , each and all of the following:

1. That the counterclaim defendant made the claimed representation ,

2. That the representation was false,

3. That the representation was made fraudulently,

4. That when the counterclaim defendant made the representation, the counterclaim defendant intended that Starrh Bees would rely on it,

5. That Starrh Bees did rely on the misrepresentation ,

6. That Starrh Bees' reliance on the representation was reasonable,

7. That the representation was a proximate cause of some damage to Starrh Bees, and



A representation is made fraudulently if it is made either (1) with knowledge that it is false, or (2) both as a positive assertion and recklessly, without knowledge of its truth.

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If Starrh Bees has not met its burden of proof on its counterclaim, then your verdict must be for the counterclaim defendants on Starrh Bees' fraud counterclaim.

On the other hand, if Starrh Bees has met its burden of proof, then your verdict must be for Starrh Bees on Starrh Bees' fraud counterclaim.

. Dam ages

If you find in favor of Starrh Bees on its fraud counterclaim, then you must determine the amount of its damages for that claim.

The measure of damages for a fraudulent misrepresentation claim is the amount that will compensate the defrauded party for the loss or injury actually caused by the fraud, and place the defrauded party in the same position as it would have been in had the fraud not occurred.

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INSTRUCTION #17: NEGLIGENCE

I:McDonald Apiary's Claim

A. Issu e s

McDonald Apiary claims that the defendants-Starrh Bees, Anne Ashley, Dale Ashley, and Jonathan Gonzalez-were negligent in placing their beehives in locations close to McDonald Apiary's beehives that did not have sufficient forage to support the number of bees placed there.

B. Burden of Proof

Before McDonald Apiary can recover against a defendant on its negligence claim, McDonald Apiary must prove, by the greater weight of the evidence, each and all of the following:

1. That the defendant placed beehives in locations close to McDonald Apiary's beehives that did not have sufficient forage to support the number of bees placed there,

2. That under similar circumstances, a reasonably prudent beekeeper would not have placed hives at the locations where the defendant placed hives,

3. That the defendant 's placement of its hives in 2015 and 2016 was a proximate cause of the defendant's bees entering into McDonald Apiary's forage area,

4. That the defendant's negligence was a proximate cause of some damage to McDonald Apiary , and


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Negligence is doing something that a reasonably careful person would not do under similar circumstances, or failing to do something that a reasonably careful person would do under similar circumstances.

Beekeepers, such as the defendants, have a duty to use the skill and knowledge ordinarily possessed by other beekeepers in the same or similar circumstances.


If McDonald Apiary has not met its burden of proof on its claim, then your verdict must be for the defendants on McDonald Apiary's negligence claim.

On the other hand, if McDonald Apiary has met its burden of proof , then your verdict must be for McDonald Apiary on McDonald Apiary's negligence claim.

II. Damages

If you find in favor of McDonald Apiary on its negligence claim, then you must determine the amount of their damages for that claim.

The measure of damages for this claim is the market value of McDonald Apiary's property before it was damaged , minus its market value after it was damaged. McDonald Apiary is also entitled to recover the value of the loss of use of the property: that is, if you decide that a defendant's negligence proximately caused damage to McDonald Apiary's honey production , then McDonald Apiary may recover damages for the profits that it proves were lost as a result.

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INSTRUCTION #18: RESTRAINT OF TRADE

I: McDonald Apiary's Claim

A. Is sues

McDonald Apiary claims that the defendants-Starrh Bees, Anne Ashley, Dale Ashley , and Jonathan Gonzalez-engaged in a restraint of trade by taking actions that were solely intended, and had the sole purpose, of driving McDonald Apiary out of business.

B. Burd en of Proof

Before McDonald Apiary can recover against a defendant on its restraint of trade claim, McDonald Apiary must prove, by the greater weight of the evidence, each and all of the following:

1. The defendant is a person, corporation, joint- stock company , limited liability company, or other association,

2. The defendant is engaged in business within Nebra ska,

3. The defendant gave direction or authority to do an act or acts that had no purpose other than to drive McDonald Apiary out of business,

4. That the defendant's act proximately caused McDonald Apiary to be damaged, and

5. The nature and extent of such damage.


The phrase "out of business" means a complete cessation of business operations: that is, for a defendant to be liable for restraint of trade, McDonald Apiary must prove that the defendant acted with the purpose that McDonald Apiary 's business should cease.

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If McDonald Apiary has not met its burden of proof on its claim, then your verdict must be for the defendants on McDonald Apiary's restraint of trade claim.

On the other hand, if McDonald Apiary has met its burden of proof , then your verdict must be for McDonald Apiary on McDonald Apiary's restraint of trade claim.

II. Dam ages

If you find in favor of McDonald Apiary on its restraint of trade claim, then you must determine the amount of their damages for that claim.

The measure of damages for restraint of trade are the injured party's actual damages: that is, such damages as will compensate the injured party for the injury it has sustained. But if you find that the injured party's damages are not susceptible of measurement by ordinary pecuniary standards-that is, that the injured party's damages cannot be measured by money-then you may award an amount of money that bears a reasonable relation to the actual damages that were proved.

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INSTRUCTION #19: PROXIMATE CAUSE

Many of the instructions you have been given use the term "proximate cause." A proximate cause is a cause that produces a result in a natural and continuous sequence, and without which the result would not have occurred.

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INSTRUCTION #20: MITIGATION OF DAMAGES

If you assess damages for either McDonald Apiary or Starrh Bees, then you must consider whether the injured party failed to take reasonable steps to mitigate its damages. A party is not liable for any damages that could have been prevented if the injured party had taken such reasonable steps. But the liable party has the burden of proving that the injured party failed to take reasonable steps to mitigate its damages.

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INSTRUCTION #21: SINGLE RECOVERY

Ifyou return a verdict for McDonald Apiary on any of its claims, or for Starrh Bees on any of its counterclaims, then you must decide how much money will reasonably and fairly compensate McDonald Apiary or Starrh Bees for their injuries. But the law does not permit an injured party to recover more than once for the same injury, or be made "more than whole" by compensation which exceeds the actual damages sustained.

So, although McDonald Apiary and Starrh Bees seek recovery of damages on several theories, you may assess only one recovery for each injury. For example, if you were to decide that a particular injury had been proven, but that it was caused both by negligence and restraint of trade, then the injured party may only be compensated once for that injury.

For each claim and counterclaim , if you find that damages are warranted, you should determine the total amount of damages for that claim or counterclaim , and indicate that amount on the verdict form. But for some of the claims and counterclaims , the verdict form will ask you to indicate whether that award should be reduced because the injured party has already been compensated for some or all of the injuries being redressed, by your award on a different claim or counterclaim.

In those instances, you should indicate whether, and by how much, the award for the claim or counterclaim should be reduced, to make sure that the injured party is compensated once-but only once-for each of its injuries.

Remember, throughout your deliberations you must not engage in any speculation, guess, or conjecture and you must not award any damages by way of punishment or through sympathy.

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INSTRUCTION #22: VERDICT DETERMINED BY CHANCE NOT PERMITTED

The law forbids you to return a verdict determined by chance. You may not, for instance, agree in advance that each juror will state an amount to be awarded in damages, that all of those amounts will be added together, that the total will be divided by the number of jurors, and that the result will be returned as the jury' s verdict. A verdict determined by chance is invalid.

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INSTRUCTION #23: ELECTION OF FOREPERSON AND RULES FOR DELIBERATION

In conducting your deliberations and returning your verdict , there are certain rules you must follow. I shall list those rules for you now.

First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

Second, it is your duty, as jurors , to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment , because your verdict must be unanimous. Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors , and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right, or simply to reach a verdict.

Third, if you need to communicate with me during your deliberations, you may send a note to me through the courtroom deputy, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone, including me, how your votes stand numerically.

Fourth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions . The verdict, whether for the plaintiffs or defendants, must be unanimous. Nothing I have said or done is intended to suggest what your verdict should be-that is entirely for you to decide.

Finally, the verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room , and when each of you have agreed on the verdict , your foreperson will fill in each page of the form, sign and date it, and advise the courtroom deputy that you are ready to return to the courtroom. If you do not agree upon a verdict by 5:00 p.m. on any given day, you may separate and return for deliberation at 8:30 a.m . on the next business day. If you desire to deliberate after 5:00 p.m., you may do so but please notify the courtroom deputy if that is your intention.

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Please be admonished that if you separate at any time during your deliberations, you are, during such separation, not to talk to anyone about this case or to talk among yourselves about this case. All your deliberations should be conducted as a group in the confines of the jury room. Please also remember and follow all of the other admonitions I have given you throughout this trial for your conduct during recesses. All such instructions also continue to apply during any separations which may occur after you commence deliberations.

Thank you for your service.

Dated this 1.(_th day of December , 2016.

Submitted at // J: 'clock ii_.m .

BY THE COURT:

' J;ter ard

ed States District Judge

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