Aghion v. Franco Investments , 174 So. 3d 578 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed September 2, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-9
Lower Tribunal No. 04-17806
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Jacques Aghion,
Appellant,
vs.
Franco Investments, LLC,
Appellee.
An appeal from the Circuit Court for Miami-Dade County, John W.
Thornton, Judge.
The DuBosar Law Group, and Howard D. DuBosar and Robert C. Sheres,
for appellant.
Zarco Einhorn Salkowski & Brito, and Robert Zarco, Alejandro Brito, and
Gabriel Estadella, for appellee.
Before SUAREZ, C.J., and ROTHENBERG and EMAS, JJ.
SUAREZ, C.J.
Appellee, Franco Investments, LLC, seeks an award of attorney's fees
pursuant to Florida Rule of Appellate Procedure 9.410 and section 57.105(1),
Florida Statutes (2014), incurred defending against the Appellant’s, Jacques
Aghion’s, allegedly frivolous appeal from the trial court’s order. Because we find
that Aghion’s appeal was frivolous as taken in disregard of the law of the case
below, sanctions against Aghion and his counsel are warranted under both section
57.105 and Rule 9.410. Aghion filed this appeal after the Court had already denied
his motion to enforce the mandate in Corkidi v. Franco Investments, LLC, 40 Fla.
L. Weekly D755 (Fla. 3d DCA Mar. 25, 2015), and issues raised in this appeal had
earlier been decided adversely to Aghion in the original appeal, Corkidi v. Franco
Investments, LLC, 100 So. 3d 91, 92 (Fla. 3d DCA 2012). Aghion subsequently
filed motions for rehearing and certification with respect to the mandate order. On
June 17, 2015, this Court denied the motions, with concurrence by Judge Shepherd
that bears repeating.1
1 SHEPHERD, J., concurring.
I concur in the denial of Jacques Aghion's motion for rehearing from
this court's opinion issued March 25, 2015, for the reasons set forth in
my dissent in an earlier opinion of this Court, issued July 18, 2012.
Final Judgment was entered against Mr. Aghion on June 18, 2010,
some five years ago. The filings by his counsel in this Court alone
now exceed the number of pages contained in the Affordable Care
Act, 42 U.S.C.A. §§ 18001, et seq. If necessary to end this saga, the
trial court should re-issue the Final Judgment against Mr. Aghion
forthwith. Enough is enough.
Corkidi v. Franco Invs., LLC, 40 Fla. L. Weekly D1425, D1426 (Fla. 3d DCA
June 17, 2015).
2
Section 57.105(1)(b) provides for sanctions when the application of then-
existing law to material facts does not support a claim or defense and Rule
9.410(a), (b)(1), provides for sanctions for the filing of any brief that is deemed to
be frivolous. On appeal, both section 57.105 and Rule 9.410 provide a basis for
attorney's fees as a sanction. See, e.g., Visoly v. Sec. Pac. Credit Corp., 768 So. 2d
482, 490 (Fla. 3d DCA 2000). The present appeal is governed, and clearly
precluded, by the law of the case. We therefore grant Franco Investments, LLC’s
motion for reasonable attorney’s fees pursuant to section 57.105(1)(b) and Rule
9.410, and remand to the trial court for the sole purpose of determining the amount
of appellate attorney’s fees, which we award against Appellant Aghion and his
counsel jointly and severally. See Aspen Air Conditioning, Inc. v. Safeco Ins. Co.
of Am., 40 Fla. L. Weekly D1701 (Fla. 3d DCA July 22, 2015); JPMorgan Chase
Bank, N.A. v. Hernandez, 99 So. 3d 508 (Fla. 3d DCA 2011).
Motion granted, remanded with instructions.
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