Purdue v. R.J. Reynolds Tobacco Co.

• Decision Date: 14 November 2018
• Docket Number: Case No. 2D18-333
• Citation: 259 So.3d 918
• Parties: Estella PURDUE, as Personal Representative of the Estate of Leroy Purdue, Deceased, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA, Inc., Appellees.
• Court: Florida District Court of Appeals

259 So.3d 918

Estella PURDUE, as Personal Representative of the Estate of Leroy Purdue, Deceased, Appellant,
v.
R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA, Inc., Appellees.

Case No. 2D18-333

District Court of Appeal of Florida, Second District.

Opinion filed November 14, 2018.

Lorenzo Williams of Gary, Williams, Parenti, Watson & Gary, P.L.L.C., Stuart, for Appellant.

Marie A. Borland and Troy A. Fuhrman of Hill Ward Henderson, Tampa; and Charles R.A. Morse of Jones Day, New York, New York, for Appellee R.J. Reynolds Tobacco Company.

Geoffrey J. Michael of Arnold & Porter Kay Scholer LLP, Washington, D.C., for Appellee Philip Morris USA, Inc.

VILLANTI, Judge.

Estella Purdue appeals the order that denied her motion to vacate a prior order that dismissed her case against R.J. Reynolds Tobacco Company and Philip Morris USA, Inc., for lack of prosecution.¹ Because

259 So.3d 920

the trial court failed to hold an evidentiary hearing to address disputed issues of fact concerning whether Purdue received notice of the impending dismissal, we reverse and remand for further proceedings.

Purdue sued R.J. Reynolds and Philip Morris, among others, on January 10, 2008, in an Engle ² progeny case. Shortly after the case was filed, the defendants and Purdue's counsel entered into a "Standstill Agreement," pursuant to which this case was treated as stayed by the parties. The trial court, however, was never advised of the Standstill Agreement, and there was no formal stay in place.

The trial court's docket shows that Purdue filed a notice of serving expert witness interrogatories on March 2, 2011. Over a year later, on September 10, 2012, substituted counsel for Purdue filed a notice of designation of email address. Between September 10, 2012, and August 2013, no record activity of any kind occurred in the case.

Based on the lack of any record activity, the trial court clerk made an entry in the docket on August 21, 2013, stating that he had mailed notices of lack of prosecution to "all parties." However, copies of the notices that were mailed were not filed in the court file.

Two months later on October 22, 2013, four separate documents, each entitled "Notice of Lack of Prosecution," were filed in the court file. These notices, which were dated August 21, 2013, were addressed to Brown & Williamson Tobacco Corporation, American Tobacco Company, John Doe Corporation, and Philip Morris USA, Inc., and provided that the action would be dismissed without further notice or hearing unless a party showed good cause in writing "at least five days before the hearing on the motion or prior to October 22, 2013," why the action should remain pending. The record contains no explanation as to why these notices were not filed in the court file until sixty days after they were allegedly mailed. Notably, none of the filed notices were addressed to Purdue or her counsel.³

When no party filed any objection to the dismissal or engaged in any record activity during the sixty days after the notices of lack of prosecution were sent, the trial court summarily dismissed the case under a "Master Dismissal Order" dated October 28, 2013. The "Master Dismissal Order" dismissed forty-seven separate cases that were identified on an attached list—all for lack of prosecution—and did not indicate if or how the order was transmitted to any of the parties or attorneys affected by it.

Twenty-eight months later on February 23, 2016, Purdue filed a motion to vacate the dismissal under Florida Rule of Civil Procedure 1.540. In her motion, she asserted that neither she nor her counsel had received either the notice of lack of prosecution or the master dismissal order. In support of her motion, she filed the affidavit of Attorney Paul McMahon, in which he alleged that neither he nor his office had ever received either the notice of lack of prosecution or the master dismissal order. Purdue also filed the affidavit of Attorney Donald Watson, in which he alleged that he had no knowledge of ever receiving a copy of the notice of lack of prosecution or the master dismissal order and further that no copy of either document could be located anywhere in the law firm's files. Purdue sought to vacate the dismissal order as a clerical mistake under rule 1.540(a), as the product of excusable neglect under rule 1.540(b)(1), or as void under rule 1.540(b)(4).

259 So.3d 921

Despite the existence of the Standstill Agreement, under which this case was stayed as between the parties, R.J. Reynolds and Philip Morris objected to Purdue's motion, arguing that the order of dismissal did not contain a clerical error and was not void. They also argued that the motion to vacate was untimely under rule 1.540(b)(1) and that the attorneys' affidavits were insufficient to establish that they had not received the notice of lack of prosecution and the dismissal order. Without providing the rationale for its ruling, the trial court denied Purdue's motion to vacate. On appeal, Purdue again argues that she is entitled to relief on each of these grounds. We agree, but only in part.

First, Purdue is not entitled to relief under rule 1.540(a) because the clerk's alleged failure to mail the notice of lack of prosecution and/or the dismissal order to Purdue is not a "clerical error" as contemplated by that rule. Rule 1.540(a) provides relief from "[c]lerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission." The language of the rule contemplates a mistake or error in the order or judgment itself—not in the process or procedure of transmitting the order. Further, the errors contemplated by the rule are only those in form, not substance. As this court has said, "[t]he ‘clerical mistakes’ referred to by rule 1.540(a) are only ‘errors or mistakes arising from accidental slip or omission, and not errors or mistakes in the [s]ubstance of what is decided by the judgment or order.’ " Byers v. Callahan, 848 So.2d 1180, 1184 (Fla. 2d DCA 2003) (second alteration in original) (quoting Town of Hialeah Gardens v. Hendry, 376 So.2d 1162, 1164 (Fla. 1979) ). Hence, the rule is essentially designed to correct typographical errors and the like rather than to address due process violations or substantive errors in a judgment.

Here, Purdue does not allege that there is an error in the order of dismissal itself. Thus, she has not alleged an error that is cognizable under rule 1.540(a). Her reliance on DiPiazza v. Palm Beach Mall, Inc., 722 So.2d 831 (Fla. 2d DCA 1998), where the order at issue accidentally dismissed all defendants rather than only one, and Underwriters at Lloyd's London v. Rolly Marine Service, Inc., 475 So.2d 265 (Fla. 4th DCA 1985), where a mistake in an order entered by the clerk caused the case to be dismissed rather than transferred, is unavailing because those cases did involve actual errors in the orders themselves rather than in the process of transmitting them. Accordingly, Purdue is not entitled to relief under rule 1.540(a).

Second, Purdue is not entitled to relief under rule 1.540(b)(1) because her motion was untimely under that subsection. It is true that "[a] party can seek relief under rule 1.540(b) when he or she does not receive a copy of an order entered by the court." Waters v. Childers, 198 So.3d 1007, 1008 (Fla. 1st DCA 2016) ; see also Liberty Mut. Ins. Co. v. Lyons, 622 So.2d 621, 622 (Fla. 5th DCA 1993) ("Generally, a prior judgment, decree or order must be set aside where there is excusable neglect in the form of a litigant's failure to receive notice of a pending hearing or trial."). However, a motion to vacate under rule 1.540(b)(1) must be filed within one year of the entry of the judgment, order, or decree. See Fla. R. Civ. P. 1.540(b)(1). So while Purdue's claim that she did not receive the master dismissal order is generally cognizable under rule 1.540(b)(1), her motion, filed twenty-eight months after the entry of that order, is untimely. See Renovaship, Inc. v. Quatremain, 208 So.3d 280, 284 (Fla. 3d DCA 2016) (refusing to consider a motion to vacate under rule 1.540(b)(1) based on the nonreceipt of an order when the motion

259 So.3d 922

was filed fifteen months after the dismissal was entered). Therefore, Purdue is not entitled to relief on this basis.

Finally, however, Purdue may be entitled to relief under rule 1.540(b)(4) if she can prove that the master dismissal order is void as having been entered without notice and an opportunity to be heard. While the simple lack of receipt of an order or judgment is not sufficient to render that order or judgment void, an order or judgment that was entered without notice and an opportunity to be heard is void as a violation of due process. See Renovaship, Inc., 208 So.3d at 285 (citing Curbelo v. Ullman, 571 So.2d 443, 445 (Fla. 1990) ). Hence, while the lack of receipt of a judgment or order arising out of a hearing of which the litigant had notice will not render a judgment or order void, lack of notice and an opportunity to be...