Philip Morris Inc. v. Jett

• Decision Date: 10 October 2001
• Docket Number: No. 3D00-3189.,3D00-3189.
• Citation: 802 So.2d 353
• Parties: PHILIP MORRIS INCORPORATED, R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, and Brown & Williams Tobacco Corp., Individually and as Successor to the American Tobacco Company, Appellants, v. Saundra K. JETT, Appellee.
• Court: Florida District Court of Appeals

802 So.2d 353

PHILIP MORRIS INCORPORATED, R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, and Brown & Williams Tobacco Corp., Individually and as Successor to the American Tobacco Company, Appellants, v. Saundra K. JETT, Appellee.

No. 3D00-3189.

District Court of Appeal of Florida, Third District.

October 10, 2001.

Rehearing, Rehearing and Certification Denied December 19, 2001.

Shook, Hardy & Bacon and Norman A. Coll and Kenneth J. Reilly, Miami; Smith Ballard & Logan and Alan C. Sundberg, Tallahassee; Greenberg, Traurig and Elliott Scherker and David L. Ross and Dawn Beighey Georgiades, Miami; Womble Carlyle Sandridge & Rice and Jonathan Engram and Lisa Sheppard; Carlton Fields and Douglas J. Chumbley, Miami; Adorno & Zeder and Anthony N. Upshaw, Miami, for appellants.

Gerson & Davis and Edward S. Schwartz and Phillip M. Gerson, Miami; Angones, Hunter, McClure, Lynch & Williams and Steven Hunter, Miami; Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin and Joel S. Perwin, Miami, for appellee.

Before GERSTEN and GREEN, JJ., and NESBITT, Senior Judge.

Rehearing, Rehearing En Banc and Certification Denied December 19, 2001.

NESBITT, Senior Judge.

Defendants below, Phillip Morris Companies, Incorporated, and other companies that manufacture and sell tobacco products ("defendants") appeal an order entitled "ORDER ON THE COURTS ADMINISTRATION AND JURISDICTION OVER THE CONSUMMATION OF THE SETTLEMENT AGREEMENT." The order outlined which party would carry what burdens in the upcoming trial between the companies and an individual flight attendant in light of a previously executed class action Settlement Agreement. Finding we are without jurisdiction to review the order at issue, we dismiss the appeal.

Saundra Jett's action is one of approximately 3,125 individual lawsuits filed by flight attendants in the wake of the settlement and dismissal of the class action in the case of Norma Broin, et al. v. Philip Morris Companies, Inc., et al., Case No. 91-49738. (Herein, Broin.)¹ The Broin Settlement Agreement was executed during the trial of the Broin class action, before any issues had been submitted to the jury. In Ramos v. Philip Morris Cos., Inc., 743 So.2d 24 (Fla. 3d DCA 1999), responding to the objections of certain intervenors, this court affirmed the trial judge's decision which approved the Settlement Agreement.

Faced with a multitude of upcoming individual lawsuits, the administrative judge supervising the litigation determined that certain evidentiary rulings would be made in Jett's case and regarded as applicable to all the upcoming flight attendant actions. In May of 2000, Judge Robert Kaye, the trial judge in Ramos, was appointed to rule on such common issues. One such question arose as to which party would carry what burdens of proof in light of the Broin Settlement Agreement. In October of 2000, Judge Kaye entered the order at issue, analyzing the burden-shifting provisions contained in the Agreement, and ordering which party would carry what burdens in the trial to follow.² Paragraph 12 of the Broin Settlement Agreement defined the "retained claims" which individual class members and their survivors could bring in individual actions following the dismissal in Broin, and how such actions could be brought.³

We do not reach the merits of either side's position as we conclude that the order is not at this time an appealable order. Defendants maintain that district courts routinely review orders interpreting settlement agreements and that the order at issue is reviewable either as a final order, a non final order entered after final judgment, or by way of writ of certiorari. We cannot agree.

Where a post-judgment motion in effect triggers a new proceeding with disputed issues to be resolved by trial and which will culminate in a final order, the issues raised will be appealable when final judgment is entered. See Little Arch Creek Properties, Inc. v. Medical Facilities Dev. Inc., 698 So.2d 926

(Fla. 3 DCA 1997). We said this in Little Arch in the context of a prospective vendor's post-judgment motion for damages against the surety on a lis pendens bond, observing:

[T]his court has rejected the proposition that all post-judgment orders are appealable under Rule 9.130(a)(4). In Grafman v. Grafman, 488 So.2d 115 (Fla. 3d DCA 1986), the court explained that where a post-judgment motion in effect initiates a new proceeding which will culminate in a new final order, the non-final orders entered in the new proceeding "must be considered nonfinal orders entered prior to final order, not after final order, and accordingly are not appealable as `non-final orders entered after final order' under Fla. R.App. P. 9.130(a)(4)." 488 So.2d at 118.

Id. at 927 (citing Maryland Cas. Co. v. Century Constr. Corp., 656 So.2d 611, 612 (Fla. 1st DCA 1995), and Gaché v. First Union National Bank, 625 So.2d 86, 87 (Fla. 4th DCA 1993)). Little Arch cited to Grafman, a case involving review of a modification order in a domestic case.⁴ The logic set out in Little Arch and Grafman applies with equal force here. At this initial juncture, the trial court has simply made one of what may be a number of evidentiary rulings. The claim remains pending.

The cases cited by the defendants simply do not support their argument. Defendants point to a trial court's jurisdiction to enforce a court approved settlement agreement. However, the trial court's jurisdiction is not at issue. See Buckley Towers Condominium, Inc. v. Buchwald, 321 So.2d 628, 629 (Fla. 3d DCA 1975)

(concluding "even without an express reservation thereof, jurisdiction inherently remains in the trial court to make such orders as may be necessary to enforce its judgment"). Defendants also cite to cases granting review of orders interpreting settlement agreements. In those cases, however, the orders at issue provided for an end to the litigation, not the beginning, as is the situation here. See Avery Dev. Corp. v. Bast, 582 So.2d 150, 151 (Fla. 4th DCA 1991)(presenting the issue of whether the trial court erred in determining that a mortgage commitment procured by appellees was identical in substance to a prior commitment, as required by the settlement agreement, in order to complete the terms thereof so that appellee could purchase a townhouse developed by appellant).

Thus, the instant appeal is not provided for by Rule 9.130(a)(4), nor is any other provision of Rule 9.130 applicable. Also, while we are authorized to treat an appeal as a petition for certiorari review, see Johnson v. Citizens State Bank, 537 So.2d 96, 98 (Fla.1989),

the order at issue simply does not meet the criteria for such review. See Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla.1999) (explaining that use of a petition for writ of certiorari is an "extraordinary remedy" that "should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of nonfinal orders.") See also Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098 (Fla.1987); Riano v. Heritage Corp. of South Fla., 665 So.2d 1142, 1144 (Fla. 3d DCA 1996).

Consequently, we dismiss the instant appeal. This ruling, of course, is without prejudice to ...