Capone v. Philip Morris United States, Inc.

• Decision Date: 13 June 2013
• Docket Number: No. SC11–849.,SC11–849.
• Parties: Karen CAPONE, Petitioner, v. PHILIP MORRIS USA, INC., Respondent.
• Court: Florida Supreme Court

116 So.3d 363

Karen CAPONE, Petitioner,

v.PHILIP MORRIS USA, INC., Respondent.

No. SC11–849.

Supreme Court of Florida.

June 13, 2013.

John S. Mills and Courtney Rebecca Brewer, of The Mills Firm, P. A., Tallahassee, FL, and J. Michael Fitzgerald, Charlottesville, VA, for Petitioner.

Gary L. Sasso, Joseph Hagedorn Lang, Jr., and Leah A. Sevin, of Carlton Fields, P.A., Tampa, Bruce Alan Weil, of Boises Schiller & Flexner LLP, Miami, FL; William Patrick Geraghty, of Shook, Hardy & Bacon, L.L.P.; and Geoffrey J. Michael, of Arnold & Porter LLP, Washington, D.C., for Respondent.

Celene H. Humphries, of Brannock & Humphries, Tampa, FL, for Amicus Curiae, The Florida Justice Association.

LEWIS, J.

Petitioner Karen Capone seeks review of the decision of the Third District Court of Appeal in Capone v. Philip Morris U.S.A. Inc., 56 So.3d 34 (Fla. 3d DCA 2010), based upon express and direct conflict with the decision of the Second District Court of Appeal in Niemi v. Brown & Williamson Tobacco Corp., 862 So.2d 31 (Fla. 2d DCA 2003). We have jurisdiction. Seeart. V, § 3(b)(3), Fla. Const.

FACTS AND PROCEDURAL HISTORY

Proceedings in the Circuit Court

This case has a somewhat convoluted procedural history. We must analyze this history in detail to address Respondent Philip Morris USA, Inc.'s (“Philip Morris”) contention that the Third District Court of Appeal lacked jurisdiction to consider Capone's appeal and, therefore, the further contention that this Court should discharge jurisdiction as improvidently granted.

In 2005, Frank and Karen Capone filed an action against tobacco manufacturers Philip Morris and Brown and Williamson Tobacco Corporation alleging that their tobacco products caused physical bodily injury to Frank in the form of “lung cancer and/or other malignancies, shortness of breath, pneumonia, chronic coughing, chronic obstructive pulmonary disease, irreversible small and large airway obstruction, permanent cellular damage, inheritable genetic changes in lung and airway cells, cardiovascular injuries, and other injuries.” The Capones alleged claims for negligence, strict liability, conspiracy to fraudulently misrepresent, and conspiracy to fraudulently conceal, as well as a claim by Karen for loss of consortium. On July 18, 2006, Frank Capone died.

On January 14, 2008, Karen, in her capacity as personal representative of the estate of Frank Capone, filed a motion to amend the complaint to name additional defendants and to allege inclusion in the class impacted by this Court's decision in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006). ¹ Karen attached an amended complaint to the motion which alleged claims of strict liability, breach of express and implied warranties, civil conspiracy to fraudulently conceal, fraudulent concealment, and negligence. Although Karen sought “all damages allowed by the Florida Wrongful Death Act” and stated that, as a result of the defendants' actions, “Plaintiff's Decedent was injured and died,” the amended complaint also contained the following language:

Alternatively, in the event one or more of the Defendants contend that Decedent died of some cause unrelated to smoking cigarettes, Plaintiff asserts a claim for survival damages pursuant to Section 46.021, Florida Statutes, as Decedent suffered past physical and mental and emotional pain and suffering, loss of enjoyment of life and medical expense for care and treatment. During the period before Decedent died and in conjunction with an alternative survival claim, Plaintiff also asserts a loss of consortium claim and alleges as a direct and proximate result of the allegations contained in this Complaint, Plaintiff or Plaintiffs' [sic] Decedent's spouse has suffered and will continue to suffer the loss of services, consortium, and care and comfort of Decedent's society because of his/her injuries, disabilities and/or death, and has incurred expenses for medical treatment rendered to Decedent.

Karen subsequently filed a motion to substitute herself as party plaintiff after Frank's death and her appointment as personal representative of Frank's estate.

On February 19, 2008, Philip Morris filed a response in opposition to Karen's motions and also filed a Motion to Dismiss Complaint. Philip Morris contended that the Florida Wrongful Death Act (the Act) prohibits conversion of a personal injury action into a wrongful death action when the injuries to a party plaintiff result in his or her death. In support of this contention, Philip Morris relied upon section 768.20, Florida Statutes (2008), which provides that “[w]hen a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.” Philip Morris contended that because the Capones' personal injury action was extinguished upon the death of Frank, the complaint could not be amended to state a cause of action for wrongful death. According to Philip Morris, the decision of the Fifth District Court of Appeal in Taylor v. Orlando Clinic, 555 So.2d 876 (Fla. 5th DCA 1989), required that Karen file a new action for wrongful death separate from the pending action for personal injury. On September 16, 2008, the circuit court denied Karen's motions to amend and to substitute. In the same order, the circuit court dismissed the entire action on the basis that it had become barred by the Act.

Thereafter, Karen filed a “Motion to Reconsider and/or to Vacate” the September 16 order. The motion in the record before this Court includes a certificate of service that provides “I certify that a true copy of this Motion to Reconsider and/or to Vacate has been served on all counsel of record by U.S. Mail on September 24, 2008.” In a memorandum of law that accompanied the motion, Karen asserted that she was not seeking to convert the personal injury action into a wrongful death action. Instead, she was

leaving room for the possibility that Plaintiff may have an alternative claim for survival damages pursuant to Section 46.021, Florida Statutes, in the event the Plaintiff does not succeed in proving at trial that the alleged cigarette-related diseases and/or medical conditions caused by the Defendants were the cause or substantial cause of Decedent FRANK CAPONE's death. As in any products liability case, because these different theories of recovery are complementary, they should be presentedtogether in order to address and resolve all pertinent issues at trial.

On November 6, 2008, the circuit court held a hearing on the “Motion to Reconsider and/or to Vacate.”

During the hearing, Philip Morris contended that the motion was not timely served pursuant to Florida Rule of Civil Procedure 1.530² because the envelope in which counsel for Philip Morris received the motion was postmarked from Miami on September 29, 2008—three days after the ten-day deadline to serve a motion for rehearing had expired—and the certificate of service attached to the copy of the motion was neither signed nor dated. Conversely, counsel for Karen asserted that the motion to reconsider was timely served on September 24, 2008—only eight days after the trial court's September 16, 2008, order of dismissal—by mail from Charlottesville, Virginia. Karen's counsel was perplexed with regard to the origin of the envelope with the September 29 postmark. He demonstrated that the motion to reconsider could not have been mailed from Virginia on September 29 because it was received by the circuit court in Miami on that same date.³ On May 8, 2009, the circuit court issued an order that vacated the September 16, 2008, order which had dismissed the case. The circuit court also granted Karen's previously-filed motions to amend the complaint and to substitute parties.

On May 18, 2009, Philip Morris filed with the circuit court a Motion to Vacate the May 8 order, again asserting that Karen's initial motion for reconsideration was not timely served. Philip Morris also contended that the circuit court had properly dismissed the personal injury case on the basis that section 768.20 requires that a wrongful death action be filed as a new and separate action that cannot be presented in an amendment to an existing case. On September 2, 2009, the circuit court through a different judge granted Philip Morris' motion and vacated the May 8, 2009, order.⁴ This order had the operative effect of dismissing Karen's action against Philip Morris.

On September 8, 2009, Karen served three motions upon Philip Morris: a motion for rehearing styled as a “Verified Motion to Vacate and/or Reconsider”; a Motion for Relief from Judgment filed pursuant to Florida Rule of Civil Procedure 1.540(b), in which Karen asked the circuit court to set aside the dismissal order on the basis of mistake or inadvertence; and a Motion to Correct Scrivener's Error. On November 4, 2009, the circuit court denied the three motions in a single, unelaborated order, which had the operative effect of rendering the dismissal final and denying rule 1.540 relief. On December 4, Karen filed a notice of appeal seeking review of the dismissal, which became final upon entry of the order that denied Karen's motion for rehearing and the denial of rule 1.540 relief.

Proceedings in the District Court

On appeal, the Third District affirmed the order of the circuit court which dismissed the pending action. See Capone, 56 So.3d at 36–37 (concluding that Karen's action was “correctly dismissed”). The district court first concluded that Karen's motion to reconsider the September 16, 2008, order of dismissal was untimely on the basis that the certificate of service on the motion served upon counsel for Philip Morris was blank, and “Capone could not point to anything to show that the motion was served within the ten-day time period specified by Florida Rule of Civil Procedure 1.530(b).” Id. at 35. The district court then held that, based upon section 768.20, the original personal injury action filed...