Millette v. Tarnove etc.
435 F. App'x 848
11th Cir.2011Background
- Diversify action: Millette sues Nadeau General Contractors for defective construction and Tarnove for breach of fiduciary duty as closing agent.
- District court allowed apportionment of fault to nonparties under Fla. Stat. § 768.81; verdict awarded $225,000 with 5% fault to Nadeau.
- Millette appeals the nonparty fault apportionment and Tarnove’s Rule 50(a) ruling.
- Jury was asked to apportion fault to nonparties including Camus/DEK Technologies, Webster Bank, and Todd Smith/Steve Cummings.
- Court vacates judgment to the extent of apportionment of fault due to error on intentional-tortfeasor issue; remands for new apportionment proceedings.
- Damages on the Milllette-Nadeau negligence claim remain as awarded; damages issues for Tarnove are reconsidered on remand as appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether nonparties could be apportioned fault under § 768.81 with an intentional-tortfeasor question. | Nadeau should apportion fault to nonparties under § 768.81. | Nonparties may be apportioned fault if pleading requirements are met; submission to jury permissible. | Remand for new apportionment; court must decide intentional-tortfeasor issue. |
| Whether the intentional-tortfeasor issue should have been decided by the court, not the jury. | Courts decide intentional-tortfeasor issues as a matter of law. | Jury should decide; district court did so. | District court erred; issue must be resolved as a matter of law on remand. |
| Whether apportionment to Camus/DEK and Webster Bank was appropriate given contract or economic loss rules. | Nonparties with contracts can be apportioned fault; economic loss rule does not bar this. | Economic loss rule may restrict tort claims; apportionment to nonparties permissible for loss allocation. | Nonparties may be apportioned fault; but remand to re-evaluate under Florida law. |
| Whether Tarnove’s conduct regarding the title report and HUD-1 altered damages; Rule 50(a) ruling. | Tarnove breached fiduciary duties; damages shown. | No damages proven for title-report breach; HUD-1 alteration damages undefined. | Title-report breach affirmed; HUD-1 alteration created damages; remand on damages and fees. |
| Whether the district court properly granted Tarnove’s Rule 50(a) motion on the title-report and HUD-1 claims. | Millette provided evidence of damages from HUD-1 alteration. | No damages shown for title-report breach; some damages from HUD-1 alteration. | Affirmed in part on title-report; vacated on HUD-1 damages; remand with fee considerations. |
Key Cases Cited
- Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993) (control of apportionment; nonparties may be liable for fault under 768.81)
- Nash v. Wells Fargo Guard Servs., 678 So. 2d 1262 (Fla. 1996) (nonparties may be apportioned fault despite immunity from other claims)
- Merrill Crossings Assocs. v. McDonald, 705 So. 2d 560 (Fla. 1997) (intentional torts cannot be apportionable; gatekeeping by court)
- Y.H. Invs., Inc. v. Godales, 690 So. 2d 1273 (Fla. 1997) (apportionment to nonparties despite tort immunity or lack of direct relation)
- Allied-Signal, Inc. v. Fox, 623 So. 2d 1180 (Fla. 1993) (nonparty apportionment permitted despite immunities)
- Indemnity Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So. 2d 532 (Fla. 2004) (economic-loss rule discussed in apportionment context)
- Cessna Aircraft Co. v. Avior Techs., Inc., 990 So. 2d 532 (Fla. 3d DCA 2008) (contract/relief allocation principles in Florida law)
- Armetta v. Clevetrust Realty Investors, 359 So. 2d 540 (Fla. 4th DCA 1978) (lender duties and implied duties in real estate)
- Sobi v. First South Bank, Inc., 946 So. 2d 615 (Fla. 1st DCA 2007) (lender liability concepts in Florida)