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R.J. Reynolds Tobacco Company v. Howard

Florida Court of Appeals, Second District

December 27, 2019

R.J. REYNOLDS TOBACCO COMPANY, and Philip Morris USA Inc., Appellants,
v.
Thomas HOWARD, as Personal Representative of the Estate of William A. Howard, Sr., Appellee.

Page 937

          Appeal from the Circuit Court for Lee County; Robert Branning, Judge.

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

         Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP, Washington, DC, for Appellant Philip Morris USA Inc.

         Christine Elaine King and Michael C. McQuagge of McQuagge & King Law Firm, Fort Myers; and Jack C. Morgan, III of Aloia, Roland, Lubell & Morgan, PLLC, Fort Myers, for Appellee.

          OPINION

         MORRIS, Judge.

          R.J. Reynolds Tobacco Company and Philip Morris USA Inc. (the tobacco companies) appeal an order granting a motion to set aside dismissal filed by Thomas Howard, as personal representative of the estate of William A. Howard, Sr. We conclude that the trial court erred in granting Howard’s motion to set aside dismissal. Accordingly, we reverse the order on appeal.

         Howard filed an action against the tobacco companies in Lee County in January 2008 in accordance with Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006). In October 2014, the parties signed a stipulation and joint motion to transfer venue to Charlotte County. On November 5, 2014, the trial court entered an agreed order transferring the case to Charlotte County. On November 14, 2014, the Lee County

Page 938

Clerk of Court sent a letter to Howard, informing him that it could not complete the transfer until it received the appropriate filing fee. In March 2015, the clerk filed a motion to dismiss transfer, asking the court to issue an order dismissing the cause of action because the transfer fees had not been paid. On April 7, 2015, the trial court entered an order dismissing the case without prejudice pursuant to Florida Rule of Civil Procedure 1.060(c).

         On the docket, the case remained active as an Engle -progeny case, and in a filing on or around December 22, 2015, the tobacco companies argued that the case was no longer pending in Lee County due to the April 2015 order of dismissal. On December 23, 2015, Howard filed an objection and asserted that the case had not been dismissed. Rather, Howard argued, the case had not been transferred to Charlotte County but remained pending in Lee County.

         On April 19, 2016, Howard filed a motion for clarification of order or motion to set aside dismissal. Howard claimed that the filings were never sent to Howard’s designated service address filed with the court in January 2014. He asked the court to clarify that the case was never dismissed, only that the transfer had been denied. In the alternative, Howard asked the trial court to vacate the April 2015 order. After a hearing, the trial court entered an order in July 2016 denying Howard’s motion. The trial court found that the case had been dismissed in April 2015 and that any procedural error in the service of the dismissal did not render the order void for purposes of seeking relief from judgment outside of a year under Florida Rule of Civil Procedure 1.540(b)(4). The trial court found that Howard had actual notice of the dismissal in December 2015 and concluded that because Howard did not seek relief from the order of dismissal within one year, the motion was untimely under rule 1.540(b)(1)-(3). Howard appealed the July 2016 order denying his motion set aside dismissal in 2D16-3776, and this court per curiam affirmed in November 2017.[1]

         On July 2, 2018, Howard filed another motion for relief from the April 2015 order of dismissal under rule 1.540(a), claiming that the April 2015 dismissal was based on a clerical mistake by the clerk. After two hearings, a successor judge entered an order granting the motion to set aside dismissal on December 17, 2018. The successor judge found "that the record in this case does not indicate any intention by the Court or the parties that the case be dismissed" in April 2015. The court interpreted the April 2015 order "as dismissing only the transfer of the case to Charlotte County, not as an order dismissing the action." The court also ...


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