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Blue v. R.J. Reynolds Tobacco Co.

Florida Court of Appeals, Second District

January 19, 2018

YVONNE BLUE and DEBORAH COOPER, as Co-personal Representatives of the Estate of Ramona Leonard, deceased, Appellants,
v.
R.J. REYNOLDS TOBACCO COMPANY and PHILIP MORRIS USA INC., Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Lee County; John E. Duryea, Jr., Judge.

          Lorenzo Williams and Natasha N. Harrison of Gary, Williams, Parenti, Watson & Gary, P.L., Stuart, for Appellants.

          Troy A. Fuhrman and Marie A. Borland of Hill, Ward & Henderson, P.A.; and Jason T. Burnette of Jones Day, Atlanta, Georgia, for Appellee R.J. Reynolds Tobacco Company.

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

          MORRIS, Judge.

          Yvonne Blue and Deborah Cooper, as co-personal representatives of the estate of Ramona Leonard, appeal a final order dismissing their Engle[1] progeny complaint against R.J. Reynolds Tobacco Company and Phillip Morris U.S.A., Inc. (the tobacco companies). We hold that the trial court erred by dismissing the complaint based on its conclusion that Blue and Cooper failed to timely move to substitute proper parties, and we therefore reverse.

         BACKGROUND

         Ms. Leonard, the deceased, initially brought a personal injury action against R.J. Reynolds, Philip Morris, Liggett Group LLC, Vector Group Ltd., and several other defendants in 2008. Ms. Leonard died in 2013 while the suit was still pending. Thereafter, Blue and Cooper, Ms. Leonard's daughters, were appointed by a probate court to serve as the co-personal representatives of the estate.

         In March 2014, Blue and Cooper, along with Liggett Group LLC (Liggett) and Vector Group Ltd. (Vector), filed a joint notice and stipulation with the trial court explaining that Liggett and Vector were being dropped as party defendants. The stipulation included the following: "COMES NOW, the Plaintiffs, Yvonne Blue and Deborah Cooper, as Proposed PR[s] for the Estate of Ramona Leonard, deceased . . . ." The tobacco companies remained in the case as party defendants, and the case proceeded. Initially, Blue and Cooper did not move to substitute themselves as proper parties, and no formal suggestion of Ms. Leonard's death was ever filed. Instead, Blue and Cooper and the tobacco companies continued to litigate the case for almost two years.

         In September 2015, Blue and Cooper filed a motion to substitute themselves as the proper parties. The tobacco companies then filed their motion to dismiss, arguing in relevant part that because Ms. Leonard's death had been suggested on the record, within the joint notice and stipulation of dropping defendants, Blue and Cooper were required to move to substitute themselves as proper parties within ninety days of filing that document. The tobacco companies further argued that because Blue and Cooper failed to do so, Florida Rule of Civil Procedure 1.260(a)(1) required that the complaint be dismissed. At the hearing on the motion to dismiss, Blue and Cooper asserted that the ninety-day period did not begin to run until a specific pleading entitled "Suggestion of Death" was filed. However, the trial court rejected Blue and Cooper's assertion. The trial court determined that for purposes of starting the ninety-day period, the rule did not require a formal document reciting a party's death but instead required only that the party's death be somehow suggested on the record. The trial court entered its order of dismissal and subsequently denied Blue and Cooper's motion for rehearing.

         ANALYSIS

         We conduct a de novo review of the order of dismissal. See Ruiz v.Brink's Home Sec., Inc., 777 ...


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