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R.J. Reynolds Tobacco Co. v. Grossman

Florida Court of Appeals, Fourth District

June 6, 2018

JAN GROSSMAN, as Personal Representative of the Estate of LAURA GROSSMAN, deceased, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal 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).

          Jason T. Burnette of Jones Day, Atlanta, Georgia, and Charles R.A. Morse of Jones Day, New York, New York, for appellant.

          Bard 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 appellee.

          CONNER, J.

         R.J. 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[1] 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 challenge.


         Grossman 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).

         After 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.

         After 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.

         The 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.

         Appellate Analysis

         Insofar 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).

         Section 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). ...

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