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R.J. Reynolds Tobacco Co. v. Lacey

Florida Court of Appeals, Third District

July 3, 2019

R.J. Reynolds Tobacco Company, et al., Petitioners,
v.
Ray Lacey, Respondent.

         Not final until disposition of timely filed motion for rehearing.

          On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, John W. Thornton, Jr., Judge. Lower Tribunal No. 08-34222.

          Shook, Hardy & Bacon LLP and Frank Cruz-Alvarez; King & Spalding LLP and William L. Durham II and Jennifer C. Kane (Atlanta, GA), for petitioners.

          John W. Dill (Winter Park), for respondent. .

          Before SALTER, FERNANDEZ and MILLER, JJ.

          OPINION

          SALTER, J.

         R.J. Reynolds Tobacco Company ("RJR") and Philip Morris USA Inc. ("Philip Morris") petition for a writ of certiorari quashing an order denying their motion to dismiss an Engle-progeny[1] tobacco lawsuit for failure by the plaintiff's widow to comply with Florida Rule of Civil Procedure 1.260, "Survivor; Substitution of Parties," following the death of the plaintiff. We deny the petition for two separate reasons, as developed in the opinion which follows.

         Facts and Procedural History

         Ray Lacey, the original plaintiff, commenced his lawsuit against RJR, Philip Morris, and five other tobacco companies in 2008. Mr. Lacey was represented by the Schlesinger Law Offices, a firm with extensive experience in the representation of plaintiffs in Engle-related tobacco lawsuits. In August 2018, that law firm came before the trial court on a motion to withdraw from the representation, which was granted. During that hearing, counsel for Mr. Lacey advised the trial court and counsel for the tobacco defendants that: he understood Mr. Lacey had passed away; no suggestion of death had been filed; "I don't intend this to be a suggestion of death . . ."; and "[t]he defendant's [sic] do have the surviving spouse's address on file. And they can serve it when they feel necessary."

         The order permitting Mr. Lacey's sole counsel to withdraw was signed at the hearing without objection and after review by defense counsel. It provided an address for "Plaintiff" in Astatula, Florida, as well as two phone numbers. The order stated that "Plaintiff," still indicated on the order to be "Ray Lacey," would have 35 days within which to retain counsel and have counsel file a notice of appearance, or to file a written notice of an intention to represent "him/herself."[2] About five hours after the hearing on the motion for withdrawal of plaintiff's counsel, RJR and Philip Morris filed a suggestion of Mr. Lacey's death pursuant to Rule 1.260(a), indicating a date of death of February 24, 2018, "[u]pon information and belief."

         Three months later, RJR and Philip Morris moved to dismiss the case with prejudice based on: (1) Florida Rule of Probate Procedure 5.030(a), requiring a personal representative to be represented by a Florida-licensed attorney; (2) Mr. Lacey's estate's failure to obtain successor counsel within 35 days as directed in the order authorizing withdrawal of Mr. Lacey's counsel on August 30, 2018; and (3) the estate's failure to move for substitution as plaintiff pursuant to Rule 1.260 (required to be made "within 90 days after the death is suggested upon the record").

         In response, Mr. Lacey's widow, Vickie Lacey, wrote the trial judge a typewritten, signed letter dated December 17, 2018, requesting "more time to retain a lawyer to further this case." Mrs. Lacey recounted that following Mr. Lacey's death, she was in the hospital twice for breast surgery and had lost other family members. She wrote that her late husband was "the one to take the reins with this case," and that she needed "more time to get a lawyer and have our day in court."

         At a hearing on the RJR and Philip Morris motion to dismiss, Mrs. Lacey confirmed the facts detailed in her letter. She also explained that neither she nor the estate of her late husband had funds to retain attorneys.

         The trial court denied the motion to dismiss without prejudice, allowing Mrs. Lacey a further 45 days to retain counsel. 47 days later, RJR and Philip Morris filed a renewed motion to dismiss with prejudice, notifying the trial court that Mrs. Lacey ...


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