David J. Sales of David J. Sales, P.A., Jupiter, for Petitioner.
Elliot H. Scherker, David L. Ross, and Julissa Rodriguez of Greenberg Traurig, P.A., Miami, and Dawn I. Giebler-Millner and Michele L. Johnson of Greenberg Traurig, P.A., Orlando, for Respondents R.J. Reynolds Tobacco Company, Philip Morris USA Inc., Lorillard Tobacco Company and Lorillard, Inc.
Maria H. Ruiz of Kasowitz, Benson, Torres & Friedman LLP, Miami, for Respondents Liggett Group LLC and Vector Group Ltd.
Charleen Skyrme seeks certiorari review of an order denying her motion to amend her and her deceased husband's personal injury complaint to state an action for wrongful death and her motion to substitute herself, as personal representative of her husband's estate, as the plaintiff. We dismiss the petition for lack of jurisdiction.
In December 2007, Bobby Skyrme and Charleen Skyrme filed a personal injury action against the tobacco defendants. This was timely filed under Engle v. Liggett Group, Inc., 945 So.2d 1246, 1254 (Fla.2006), which allowed " class members [to file] individual claims within one year of the issuance of [the] mandate in this case with res judicata effect given to certain Phase I findings" regarding common liability of the tobacco defendants. In September 2008, the Skyrmes amended their initial complaint.
Bobby Skyrme died in March 2009, and Charleen Skyrme filed a motion to substitute herself, as the personal representative of Bobby Skyrme's estate, as the plaintiff and to amend the complaint to assert that the tobacco defendants' actions wrongfully caused Bobby Skyrme's death. The tobacco defendants objected to the motion to substitute and to amend on the basis that because the personal injury action was extinguished upon Bobby Skyrme's death, the personal injury lawsuit must be dismissed and a new lawsuit filed asserting the claim for wrongful death, citing
Capone v. Philip Morris U.S.A., Inc., 56 So.3d 34 (Fla. 3d DCA 2010). After a hearing, the circuit court denied the motion to substitute and to amend. The circuit court subsequently denied Mrs. Skyrme's motion for reconsideration.
In order for this court to have certiorari jurisdiction over the order on review, Mrs. Skyrme must show that the order creates material harm that is irreparable on appeal. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995) (" [P]etitioner must establish that an interlocutory order creates material harm irreparable by postjudgment appeal before this court has power to determine whether the order departs from the essential requirements of the law." ). The law generally holds that the denial of a motion to amend is not reviewable by certiorari because the error is later reviewable on plenary appeal. See, e.g., Harry Pepper & Assocs. v. City of Cape Coral, 369 So.2d 969, 970 (Fla. 2d DCA 1979); Hawaiian Inn of Daytona Beach, Inc. v. Snead Constr. Corp., 393 So.2d 1201, 1202 (Fla. 5th DCA 1981).
There is essentially no longer a substantive claim in the circuit court because the personal injury claim cannot survive on its own since it has now become a wrongful death claim, see § 768.20, Fla. Stat. (2008), and because the circuit court denied Mrs. Skyrme's motion to amend to assert the wrongful death claim. Accordingly, a final order of dismissal should be entered, after which Mrs. Skyrme may appeal the order of dismissal, seeking review of the order denying her motion to substitute and to amend. Because the harm can be corrected on postjudgment appeal, we do not have jurisdiction over the order on review at this time.
Mrs. Skyrme contends that the order is reviewable by certiorari, citing this court's opinion in Niemi v. Brown & Williamson Tobacco Corp., 862 So.2d 31 (Fla. 2d DCA 2003). But the facts of Niemi are distinguishable from the facts in this case. In Niemi, the husband and wife plaintiffs asserted a personal injury action against the tobacco defendants. Id. at 32. The husband later died, and the wife and a third person filed " a motion in the circuit court alleging that they had been appointed co-personal representatives of [the husband's] estate and asking the court to substitute them as plaintiffs in the action in place of [the husband]." Id. at 33. The circuit court denied the motion, " concluding that the action had automatically abated at the time of [the husband's] death. The trial court did not dismiss the action," which this court noted may have still been pending on the wife's consortium claim. Id. The pleading in the circuit court did not " claim that [the husband's] death was either the result of his personal injury or the result of some independent cause." Id. at 34. " Thus, the pleadings d[id] not permit the personal injury action to be abated under section 768.20, and the action [could not] be dismissed in light of section 46.021."  Id.
Addressing the jurisdictional prongs required for certiorari review, this court stated that
the ruling may never be reviewable on direct appeal because the co-personal representatives were not permitted to become parties and would not have the power to file an appeal at a later time. Without the substitution of ...