Al-Ghena International Corp. v. Talat Radwan , 698 F. App'x 997 ( 2017 )


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  •                Case: 16-14168     Date Filed: 06/22/2017   Page: 1 of 7
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 16-14168
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 0:13-cv-61557-WPD
    AL-GHENA INTERNATIONAL CORP.,
    SHAIRCO FOR TRADING INDUSTRY AND CONTRACTING,
    Plaintiffs - Appellants,
    versus
    TALAT RADWAN,
    JASON RADWAN,
    CORTEZ HOLDING GROUP, INC.,
    Defendants – Appellees,
    JOHN DOES (1-10),
    being fictitious names, et al.,
    Defendants.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (June 22, 2017)
    Case: 16-14168       Date Filed: 06/22/2017       Page: 2 of 7
    Before MARCUS, ANDERSON, and EDMONDSON, Circuit Judges.
    PER CURIAM:
    Plaintiffs Al-Ghena International Corporation (“Al-Ghena”) and Shairco for
    Trading, Industry, and Contracting (“Shairco”), appeal the district court’s entry of
    final judgment -- in favor of Defendants Talat Radwan, Jason Radwan, and Cortez
    Holding Group, Inc. -- on Plaintiffs’ claim for fraudulent inducement. The only
    issue on appeal is whether the district court instructed the jury properly on
    Defendants’ affirmative defense of waiver. No reversible error has been shown;
    we affirm. 1
    This appeal arises out of a failed business venture to develop a hotel in
    Florida. In Plaintiffs’ fifth amended complaint (the operative complaint in this
    case), Plaintiffs asserted eight claims against Defendants, including a claim for
    fraudulent inducement. Briefly stated, Plaintiffs alleged that Defendants
    knowingly made several false representations and omissions to induce Plaintiffs to
    invest in the hotel. Plaintiffs also alleged that their decision to invest was made in
    reliance on Defendants’ misrepresentations and omissions.
    1
    We conclude that we have subject-matter jurisdiction: Cortez Property Development, LLC
    (“CPD”) is/was no party to this civil action; in addition, some claims in the complaint (and the
    claim on appeal) did not purport to be derivative in nature. For background, see Laker Airways,
    Inc. v. British Airways, PLC, 
    182 F.3d 843
    (11th Cir. 1999).
    2
    Case: 16-14168       Date Filed: 06/22/2017        Page: 3 of 7
    In preparation for trial, the parties submitted to the district court proposed
    jury instructions. Among other things, Defendants proposed a jury instruction on a
    “waiver” affirmative defense to Plaintiffs’ fraudulent inducement claim. 2 Plaintiffs
    objected to Defendants’ proposed waiver instruction on grounds that it was
    “legally inconsistent” with the court’s jury instruction on fraudulent inducement.
    The district court overruled Plaintiffs’ objection but permitted Plaintiffs to submit a
    renewed written objection. After considering Plaintiffs’ written objection and after
    hearing further argument, the district court agreed to “delete the first sentence of
    the waiver instruction.” Plaintiffs later objected to the revised jury instruction,
    contending that a clerical error resulted in the wrong sentence being deleted. The
    2
    Defendants’ proposed jury instruction used this language:
    Talat Radwan and Cortez Holding Group, Inc. assert that Al-Ghena and Shairco
    have waived any claims that Talat Radwan and Cortez Holding Group, Inc.
    engaged in all alleged fraudulent inducement because Al-Ghena and Shairco
    failed to conduct due diligence prior to undertaking those activities which they
    allege give rise to their claims. In order to assert the defense of waiver, Talat
    Radwan and Cortez Holding Group, Inc. must show:
    1. The existence at the time of the waiver of a right, privilege, advantage, or
    benefit which may be waived by Shairco or Al-Ghena;
    2. The actual or constructive knowledge of the right; and
    3. The intention to relinquish the right.
    Waiver of fraud can occur where a party should have discovered the fraud
    through ordinary diligence. Waiver also may be implied by conduct such as the
    failure to timely speak out or to act diligently to investigate any alleged fraudulent
    representation.
    3
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    district court, however, declined to make further changes. 3 The jury ultimately
    returned a verdict in favor of Defendants on Plaintiffs’ claim for fraudulent
    inducement, and the district court entered final judgment in accordance with the
    verdict.
    In reviewing the district court’s jury instructions, we apply a “deferential
    standard of review.” McCormick v. Aderholt, 
    293 F.3d 1254
    , 1260 (11th Cir.
    2002). Under this standard, we consider “whether the jury charges, considered as a
    whole, sufficiently instructed the jury so that the jurors understood the issues and
    were not misled.” 
    Id. As long
    as the district court’s instructions reflect accurately
    the law, the district court has “wide discretion as to the style and wording
    employed in its instruction.” 
    Id. We will
    reverse based on an erroneous jury
    instruction only “if we are left with a substantial and ineradicable doubt as to
    whether the jury was properly guided in its deliberations.” 
    Id. 3 Plaintiffs
    contend on appeal that the district court ruled that the proposed jury instruction was
    “confusing,” “erroneous” or “legally defective.” These allegations are unsupported by the
    record. In granting in part Plaintiffs’ renewed objection to the waiver instruction, the district
    court said only -- without elaboration -- “I’m going to delete the first sentence of the waiver
    instruction.”
    We also reject Plaintiffs’ assertion that the district court failed to revise the jury instruction in
    accordance with its own ruling. The record demonstrates that the first sentence of Defendants’
    proposed jury instruction on waiver was deleted, consistent with the district court’s ruling. That
    Plaintiffs appear to have misunderstood the district court’s oral ruling -- interpreting the court’s
    reference to the “first sentence” to mean the first sentence to which Plaintiffs allegedly objected,
    instead of the first sentence of the proposed instruction -- does not establish that the district court
    erred.
    4
    Case: 16-14168         Date Filed: 06/22/2017   Page: 5 of 7
    We begin by looking at the jury instructions as a whole. The district court
    first instructed the jury properly about the parties’ respective burdens of proof.
    The district court instructed the jury that Plaintiffs bore the burden of proving
    “every essential part of their claims by a ‘preponderance of the evidence.’” If
    Plaintiffs failed to prove an essential part of a claim, the court instructed that the
    jury should find against Plaintiffs on that claim. If the jury determined that
    Plaintiffs had proved a claim, however, the court instructed the jury that
    Defendants could still prevail if Defendants could prove an affirmative defense by
    a preponderance of the evidence. Plaintiffs raise no challenge to this portion of the
    district court’s jury instructions.
    About Plaintiffs’ fraudulent inducement claim, the district court instructed
    the jury on each of the required elements that Plaintiffs had to prove by a
    preponderance of the evidence. In doing so, the district court gave this instruction:
    Al-Ghena and Shairco may rely on a false statement, even though its
    falsity could have been discovered if Al-Ghena and Shairco had made
    an investigation. However, Al-Ghena and Shairco may not rely on a
    false statement if they knew it was false or its falsity was obvious to
    them.
    No party disputes that the district court’s jury instruction on fraudulent inducement
    was an accurate statement of the law.
    The district court then instructed the jury that, if the jury found Plaintiffs had
    proved each element of their fraudulent inducement claim, the jury would then
    5
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    consider Defendants’ affirmative defenses. About Defendants’ affirmative defense
    of waiver, the district court gave this instruction:
    In order to assert the defense of waiver, Talat Radwan and Cortez
    Holding Group, Inc. must show:
    1. The existence at the time of the waiver of a right, privilege,
    advantage, or benefit which may be waived by Shairco or Al-
    Ghena;
    2. The actual or constructive knowledge of the right; and
    3. The intention to relinquish the right.
    Waiver of fraud can occur where a party should have discovered the
    fraud through ordinary diligence. Waiver also may be implied by
    conduct such as the failure to timely speak out or to act diligently to
    investigate any alleged fraudulent representation.
    Plaintiffs contend that the jury instruction on waiver -- which Plaintiffs say
    instructed the jury that Plaintiffs had a duty to investigate the falsity of Defendants’
    statements -- was inconsistent with the court’s jury instruction on fraudulent
    inducement and, thus, was impermissibly confusing and misleading. We disagree.
    First, the district court’s jury instruction on waiver was an accurate
    statement of Florida law. Florida courts have said expressly that “[w]aiver of fraud
    can occur where a party should have discovered the fraud through ordinary
    diligence.” See Zustrassen v. Stonier, 
    786 So. 2d 65
    , 70 (Fla. Dist. Ct. App. 2001).
    Moreover, the district court laid out clearly the parties’ respective burdens of
    proof and the structure of the jury’s decision-making process. The instructions
    made clear that, in determining whether Plaintiffs satisfied their burden of proving
    the elements of their fraud claim, the jury was not to consider whether Plaintiffs
    6
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    could have discovered the falsity of Defendants’ statements through investigation.
    But, if the jury determined that Plaintiffs satisfied their burden of proof, the jury
    could then consider -- in determining whether Defendants had satisfied their
    burden of proving their affirmative defense -- whether Plaintiffs should have
    discovered the fraud through ordinary diligence.
    The jury instructions -- considered as a whole -- were sufficient to ensure
    that the jurors understood the issues and were not misled. We are, thus, not “left
    with a substantial and ineradicable doubt as to whether the jury was properly
    guided in its deliberations.” See 
    McCormick, 293 F.3d at 1260
    .
    AFFIRMED.
    7
    

Document Info

Docket Number: 16-14168

Citation Numbers: 698 F. App'x 997

Filed Date: 6/22/2017

Precedential Status: Non-Precedential

Modified Date: 1/13/2023