R.J. Reynolds Tobacco Company, et al., Petitioners,
Ray Lacey, Respondent.
final until disposition of timely filed motion for rehearing.
Petition for Writ of Certiorari from the Circuit Court for
Miami-Dade County, John W. Thornton, Jr., Judge. Lower
Tribunal No. 08-34222.
Hardy & Bacon LLP and Frank Cruz-Alvarez; King &
Spalding LLP and William L. Durham II and Jennifer C. Kane
(Atlanta, GA), for petitioners.
W. Dill (Winter Park), for respondent. .
SALTER, FERNANDEZ and MILLER, JJ.
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 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.
and Procedural History
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
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." 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."
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
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."
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.
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.