R.J. REYNOLDS TOBACCO COMPANY, Appellant,
JAN GROSSMAN, as Personal Representative of the Estate of LAURA GROSSMAN, deceased, Appellee.
final until disposition of timely filed motion for rehearing.
and cross-appeal of non-final order from the Circuit Court
for the Seventeenth Judicial Circuit, Broward County; Jeffrey
R. Levenson, Judge; L.T. Case No. 08-025828 (09).
T. Burnette of Jones Day, Atlanta, Georgia, and Charles R.A.
Morse of Jones Day, New York, New York, for appellant.
D. Rockenbach of Burlington & Rockenbach, P.A., West Palm
Beach, and Jonathan R. Gdanski and Scott P. Schlesinger of
Schlesinger Law Offices, P. A., Fort Lauderdale, for
Reynolds Tobacco Company ("RJ Reynolds") appeals a
trial court order denying its motion to dissolve a writ of
garnishment and to stay execution of the judgment entered in
favor of the appellee, Jan Grossman ("Grossman"),
as personal representative of the Estate of Laura Grossman.
The judgment was entered in an Engle tobacco
litigation case. RJ Reynolds asserts two grounds for
reversal: (1) its compliance with section 569.23, Florida
Statutes (2017), protects it from execution while appellate
review of the final judgment is pending; and (2) there is no
final judgment upon which execution can issue because this
Court reversed a portion of the final judgment and review is
pending in our supreme court. Grossman cross-appeals and
argues that section 569.23 is unconstitutional. Because we
agree with RJ Reynolds on the application of section 569.23
to the proceedings, we reverse and remand for entry of a stay
of execution. We sua sponte dismiss the cross-appeal
as an attempt to appeal an order already providing Grossman
the full relief he sought. Additionally, there was no ruling
by the trial court on the constitutionality of the statute,
and no compliance with the notice requirements for that
brought an Engle-progeny lawsuit against RJ Reynolds
after the death of his wife, who he alleged was addicted to
cigarettes and died of lung cancer. Grossman alleged multiple
claims, including strict liability, fraud by concealment,
conspiracy to commit fraud by concealment, and negligence,
among others. The jury apportioned fault for compensatory
damages, but the trial judge declined to reduce the
compensatory damages by comparative fault. Judgment was
entered against RJ Reynolds for compensatory and punitive
damages. On appeal, we held that the trial court was required
to reduce the compensatory damage award by the parties'
comparative fault as determined by the jury. R.J.
Reynolds Tobacco Co. v. Grossman, 211 So.3d 221, 229
(Fla. 4th DCA 2017).
our decision, both sides sought review by our supreme court.
The court denied review of RJ Reynolds's petition. As of
the date of this opinion, review of Grossman's petition
is still pending.
judgment was entered against it, RJ Reynolds posted an
initial bond in compliance with section 569.23, and
subsequently increased the amount of the bond. After
petitioning our supreme court for review, Grossman moved for
a writ of garnishment, which was issued by the trial court
clerk of court. When the writ was served on a bank used by RJ
Reynolds, several millions of dollars were debited from
accounts held by RJ Reynolds. RJ Reynolds filed an emergency
motion to dissolve the writ of garnishment and to confirm a
stay of execution. It argued that the judgment Grossman was
seeking to satisfy was not final, as it was pending review by
our supreme court. Additionally, it argued that it had posted
a supersedeas bond that automatically stayed execution during
review of the case by both our supreme court and the United
States Supreme Court or until the time for filing a
certiorari petition had expired.
trial court denied RJ Reynolds's motion to dissolve the
writ or confirm a stay of execution, reasoning that the only
appeal pending was Grossman's petition (as opposed to
review sought by RJ Reynolds) and that any review by the
United States Supreme Court would be "futile, "
given recent case law by that court. RJ Reynolds gave notice
of appeal. Subsequently, Grossman cross-appealed, contending
section 569.23 is unconstitutional.
as RJ Reynolds's appellate challenges are based on
interpretation and application of statutes, our review is
de novo. Kane v. Stewart Tilghman Fox &
Bianchi, P.A., 197 So.3d 137, 139 (Fla. 4th DCA 2016).
Grossman's constitutionality challenges are also reviewed
de novo. City of Ft. Lauderdale v. Dhar,
185 So.3d 1232, 1234 (Fla. 2016).
569.23(3), Florida Statutes, provides that tobacco settlement
signatories such as RJ Reynolds can stay execution of
Engle-related judgments by posting bond. See
R.J. Reynolds Tobacco Co. v. Hall, 67 So.3d 1084,
1087-89 (Fla. 1st DCA 2011). ...