Opinion
No. 3D10-2266 Consolidated No. 3D10-2261 Consolidated No. 3D10-2260 Consolidated No. 3D10-2259 Lower Tribunal No. 04-17804 Lower Tribunal No. 04-17806
07-18-2012
Jose Corkidi, individually, Max Carlos Lederman, individually, and Jacques Aghion, individually, et al., Appellants, v. Franco Investments, LLC, a Florida limited liability company, Appellee.
O.M. Amir (Deerfield Beach); Howard D. DuBosar and Robert C. Sheres (Boca Raton), for appellants. Zarco Einhorn, Salkowski & Brito, and Robert Zarco, Alejandro Brito and Leon Hirzel, for appellee.
Not final until disposition of timely filed motion for rehearing.
Appeals from the Circuit Court for Miami-Dade County, Eugene J. Fierro, Senior Circuit Judge.
O.M. Amir (Deerfield Beach); Howard D. DuBosar and Robert C. Sheres (Boca Raton), for appellants.
Zarco Einhorn, Salkowski & Brito, and Robert Zarco, Alejandro Brito and Leon Hirzel, for appellee. Before *WELLS, C.J., and SHEPHERD and SUAREZ, JJ.
*Chief Judge Wells did not participate in oral argument.
SUAREZ, J.
Jose Corkidi, Max Carlos Lederman, Michael Levin, Hannah Levin, Irving Carpman and Jacques Aghion ("Aghion") appeal a final judgment after a jury trial in two consolidated cases awarding damages for breach of fiduciary duty, civil conspiracy and civil theft. We affirm the final judgment as to appellants, Jose Corkidi, Max Carlos Lederman, Michael Levin, Hannah Levin and Irving Carpman. We reverse the final judgment only as to appellant Aghion and remand for a new trial solely on the issue of damages.
On appeal, the sole meritorious point raised is Aghion's contention that his due process rights were violated by the fact that he neither had the opportunity to join in nor to challenge the stipulated to-procedure during trial of proceeding with a jury panel consisting of five jurors, as opposed to six after one of the jurors became ill.
We reject the other points Aghion raises on appeal as having no merit.
A default having previously been entered against Aghion, he proceeded to trial pro se solely on the issue of damages. Aghion now claims he was not present at trial because he was out of the country and never received the notice of trial even though one was sent. He argues that, as he was not present at trial through no fault of his own, he did not have the opportunity of stipulating to a five-member jury or knowingly waiving his right to a six-member jury either when the subject came up during voir dire or at the time of the stipulation between the other defendants. As Aghion did not have the opportunity of exhibiting such a knowing waiver, we must find, based on the case law, that he is entitled to a new trial on the issue of damages. See Blair v. State, 698 So. 2d 1210 (Fla. 1997) (holding that the constitutional right to a six-member jury may be waived by a knowing and intelligent waiver); Fla. Fertilizer & Mfg. Co. v. Boswell, 34 So. 241 (Fla. 1903) (holding that when the defendant is not present in person or by an attorney at trial, he does not waive the right to a twelve-member jury where the case is tried by six jurors; the sufficiency of the waiver is determined by whether the waiver was knowing and intelligent); Wallace v. State, 722 So. 2d 913 (Fla. 2d DCA 1998) (holding that failure to inform the defendant of the constitutionally mandated right to a six-person jury, when one juror became ill after the jury had been sworn, but before trial had begun and the defendant's attorney waived his rights without consulting defendant, mandates a new trial); Loiselle v. Gladfelter, 160 So. 2d 740 (Fla. 3d DCA 1964) (holding that when a constitutional right is vested in a party, and there is a doubt as to whether that right has been waived, the doubt should be resolved in the defendant's favor); see also Hornblower v. Cobb, 932 So. 2d 402 (Fla. 2d DCA 2006) (holding that even where defendant is served, received copies of pleadings and chose not to participate in a jury trial, an affirmative action more than silence or inaction is necessary to waive the right to a jury trial).
We decline to address whether Aghion, in fact, did receive notice of trial as this is a matter to be determined at an evidentiary hearing by the trial court. See Richardson v. Chase Manhattan Bank, 941 So. 2d 435 (Fla. 3d DCA 2006); Scott v. Johnson, 386 So. 2d 67 (Fla. 3d DCA 1980) (holding that denial of receipt of notice of trial did not rebut presumption of trial court's certificate of mailing of notice requiring an evidentiary hearing).
Affirmed as to appellants, Jose Corkidi, Max Carlos Lederman, Michael Levin, Hannah Levin and Irving Carpman.
Reversed and remanded as to appellant, Jacques Aghion.
WELLS, C.J., concurs.
SHEPHERD, J., concurring in part, and dissenting in part.
My only disagreement with the decision of the majority in this case is that I also would affirm as to Jacques Aghion, on the ground Mr. Aghion was willfully inattentive to his rights.
As our supreme court fittingly has stated:
[A] person has no right to shut eyes or ears to avoid information, and then say that he has no notice; that it will not suffice the law to remain willfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand.Sapp v. Warner, 141 So. 124, 127 (Fla. 1932), adhered to on reh'g, 143 So. 648 (Fla. 1932). Mr. Aghion has violated this fundamental precept.
Mr. Aghion attended the first trial of this case in December 2009, which ended in a mistrial. The trial court announced the trial would be re-set. Mr. Aghion lives in Bogota, Colombia. By his own admission, he left the courthouse that day "anticipating" mail relating to the case would be sent to him at an address in Bogota. He also knew the national mail service of Colombia is unreliable. As he testified, he received mail at his Bogota address "irregularly." Yet, he never sought to remedy the situation through the use of a private courier or some other alternative. Instead, as he further testified, he had long been trying to "close the door" on this ill-fated business transaction and "[begin] a new life." As he candidly admitted, he wanted to "wash [his] hands" of the case. To that end, he blocked all e-mail traffic from any co-defendant who tried to contact him after December 2009.
This case was filed on August 18, 2004. Attorneys representing Mr. Aghion have withdrawn on three occasions. It appears Mr. Aghion proceeded pro se from August 2008, before the first trial, to August 2010, after the second trial.
The right of access to our courts and a jury trial never has been understood as a limitless warrant. If Mr. Aghion did not have the opportunity to exhibit a knowing waiver of his right to a jury trial at the second setting of this case, it was his own fault. I cannot imagine our state founders intended to give more rights to the slothful than the diligent in our society.
I would affirm the final judgment in all respects.
I am also compelled to record that appellants' counsel ingeniously parlayed one (ill-gotten) order granting a page enlargement on behalf of one of his clients into more than 600 pages of nearly identically worded briefs, raising more than eighty-five separate arguments for reversal. The majority found just one point to have merit, that being a point highlighted by eleventh-hour counsel retained by Mr. Aghion to file a (fourteen-page) reply brief. But for that point, Mr. Aghion's fate in this case most likely would have been no different than that of all the other defendants in the case. I hope, without great expectation, this might serve as a lesson to the brief writers of the legal community. "Judges are not like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
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