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Dolores Millette v. Dek Technologies

November 7, 2011

DOLORES MILLETTE, PLAINTIFF,
v.
DEK TECHNOLOGIES, INC., ET AL., DEFENDANTS.



ORDER DENYING BILLIE TARNOVE'S RENEWED RULE 50 MOTION

THIS CAUSE is before the Court on Defendant Billie Tarnove's Renewed Rule 50 Motion [DE 649] ("Motion"). The Court has carefully reviewed the Motion, Plaintiff's Opposition [DE 659], Defendant Billie Tarnove's Reply [DE 662], the argument of counsel at the November 4, 2011 hearing, the record in the case, and is otherwise advised in the premises.

I. BACKGROUND

During trial, Plaintiff Dolores Millette ("Plaintiff") alleged that her closing agent, Billie Tarnove ("Tarnove"), had breached a fiduciary duty owed to Plaintiff when she (1) failed to provide her with a title report and (2) altered the HUD-1 Settlement Statement ("HUD-1 Statement") without her consent. After the close of Plaintiff's case, the Court granted Tarnove's Rule 50(a) motion for judgment on Plaintiff's claim for breach of fiduciary duty. See DE 480. The Court granted Tarnove's Rule 50(a) motion on the grounds that Plaintiff had failed to establish damages on her breach of fiduciary duty claim. Plaintiff appealed this ruling to the Eleventh Circuit Court of Appeals. See Amended Notice of Appeal [DE 568]. The Eleventh Circuit affirmed the Court's finding that Plaintiff had failed to establish damages on her breach of fiduciary duty claim related to Tarnove's failure to provide Plaintiff with a title report. Eleventh Circuit Mandate [DE 653] at 16. However, the Appellate Court found that Tarnove had established damages related to Tarnove's alteration of the HUD-1 Statement. Id. Specifically, the Eleventh Circuit found that a brokerage commission of $8,790 charged against Plaintiff's construction loan was damage she sustained. Id.

In its opinion remanding the case, the Eleventh Circuit stated that it was this court's job to determine whether Tarnove had breached her fiduciary duty by providing the altered HUD-1 Statement to Webster Bank. Id. at 16 n.7. Additionally, it found that "[w]e do not foreclose the possibility that TARNOVE may be entitled to judgment for a reason other than MILLETTE's failure to prove damages for this claim." Id.

Accordingly, Tarnove filed the instant Motion seeking judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50. The Motion argues that Tarnove is entitled to judgment as a matter of law because (1) Plaintiff failed to produce evidence supporting any of the elements of the breach of fiduciary duty claim and (2) Plaintiff failed to raise an issue regarding an altered document when she plead her breach of fiduciary duty claim. Motion at 2.*fn1

II. DISCUSSION

A. Legal Standard

Rule 50 of the Federal Rules of Civil Procedure provides that:

(a) Judgment as a Matter of Law.

(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to judgment.

Fed. R. Civ. P. 50; see also Bogle v. Orange Cnty. Bd. of Cnty. Comm'rs,162 F.3d 653, 656 (11th Cir. 1998).

In evaluating a defendant's Rule 50 motion, the Court must consider all the evidence in the light most favorable to the plaintiff and grant the plaintiff the benefit of all reasonable inferences. Bogle, 162 F.3d at 656 (citing Richardson v. Leeds Police Dep't, 71 F.3d 801, 805 (11th Cir. 1995)). Judgment as a matter of law is appropriate only if the facts and inferences "point so overwhelmingly in favor of the movant . . . that reasonable people could not arrive at a contrary verdict." Id. (citing Richardson, 71 F.3d at 805).

To support a claim for breach of fiduciary duty under Florida law, a plaintiff must establish: 1) the existence of a fiduciary duty; 2) the breach of that duty; and 3) the breach is the proximate cause of the plaintiff's damages. Gracey ...


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