CAPONE V. PHILIP MORRIS

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 09-3331

Case Date: 12/01/2010

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2010
Opinion filed December 1, 2010. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D09-3331 Lower Tribunal No. 05-10312 ________________

Karen Capone, individually, and as Personal Representative of the Estate of Frank Capone,
Appellants, vs.

Philip Morris U.S.A. Inc.,
Appellee.

An Appeal from the Circuit Court for Miami-Dade, Ellen L. Leesfield, Judge. J. Michael Fitzgerald (Virginia), for appellants. Carlton Fields and Geoffrey Michael, Gary L. Sasso and Joseph Hagedorn Lang, Jr., (Tampa), for appellee. BEFORE SUAREZ, ROTHENBERG, and SALTER, JJ. SUAREZ, J. Karen Capone appeals from an order denying her motion for relief from judgment, motion to correct a scrivener's error, and verified motion to vacate

and/or reconsider.

We affirm, as Karen Capone is precluded from filing a

wrongful death action because the appropriate statute of limitations has run. In 2005, Karen Capone and her husband Frank filed a complaint against Philip Morris and other cigarette manufacturers, alleging that Frank had sustained certain personal injuries as a result of smoking the Defendants' cigarettes. Specifically, the complaint contained counts for negligence, strict liability, conspiracy to commit fraudulent misrepresentation and conspiracy to commit fraudulent concealment. Frank died in July 2006.1 On January 14, 2008, Karen Capone moved to amend the complaint to assert what she claimed was a new cause of action for injured smokers created by the Florida Supreme Court in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), and moved to substitute herself as the estate's personal representative. On February 19, 2008, Philip Morris Co. filed a motion to dismiss claiming that the personal injury action was abated when Mr. Capone died and that any action for wrongful death had to be filed as a new lawsuit pursuant to Section 768.20, Florida Statutes (2008). On June 10, 2008, Capone noticed her motions for a September 2, 2008 hearing. On September 2, 2008, nine months after Capone had filed her Motion to Amend and eight months after Philip Morris filed its Motion to Dismiss and two months after the two-year

From this point on the litigation becomes a needless procedural labyrinth when, in fact, all that was needed was for the plaintiff to timely file a wrongful death action. 2

1

anniversary of Mr. Capone's death, Plaintiff's motions were brought for hearing. On September 16, 2008, the trial court denied the Motion to Amend and Motion to Substitute and dismissed the case as "barred by the Wrongful Death Act." Capone then filed her Motion for Reconsideration of Final Dismissal Order. The problem that now arose was that the motion's certificate of service to opposing counsel was not dated or signed but was, in fact, in blank. Additionally, Capone could not point to anything to show that the motion was served within the ten-day time period specified by Florida Rule of Civil Procedure 1.530(b). At the

hearing, this problem was raised and discussed but the trial court did not rule on it. The trial court subsequently vacated the dismissal and allowed the amended complaint to proceed, and Philip Morris timely filed its Motion to Vacate. A

successor judge heard the motion and correctly determined that, in fact, the record did not show that Capone's Motion to Reconsider was timely filed. The trial court vacated the prior order and dismissed the complaint. The statute of limitations for a wrongful death action is two years from the date of death.

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