Garner v. Lorillard Tobacco Co. , 2012 Fla. App. LEXIS 3829 ( 2012 )

81 So. 3d 634 (2012)

Dana D. GARNER, As Personal, etc., et al., Appellants,
v.
LORILLARD TOBACCO COMPANY, et al., Appellees.

No. 5D10-1838.

District Court of Appeal of Florida, Fifth District.

March 9, 2012.

Steven L. Brannock, Celene H. Humphries, and Tyler K. Pitchford of Brannock & Humphries, Tampa, and Gregory D. Prysock, of Morgan & Morgan, Jacksonville, and Keith R. Mitnik, of Morgan & Morgan, Orlando, for Appellant.

David L. Ross, Elliot H. Scherker and Brigid F. Cech Samole, of Greenberg Traurig, P.A., Miami, and Dawn Giebler Milner, of Greenberg Traurig, L.L.P., Orlando, for Appellees Lorillard Tobacco Company.

Kelly Luther, Maria H. Ruiz and Giselle Gonzalez Manseur, of Kasowitz, Benson, Torres & Friedman, L.L.P., Miami, for Appellees Liggett Group L.L.C. & Vector Group Ltd.

Jeffrey E. Bigman, of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, and David B. Thorne and Jennifer M. Voss, of Shook, Hardy & Bacon, L.L.P., Tampa, and William P. Geraghty and Frank Cruz-Alvarez, of Shook, Hardy & Bacon, L.L.P., Miami, for Appellees Phillip Morris USA, Inc.

PER CURIAM.

Appellants challenge the summary judgment in favor of Lorillard Tobacco Company, Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Vector Group, Ltd., Inc., and Liggett Group, LLC (collectively "Appellees") in this Engle^[1]-progeny case. Appellants argue that: (1) summary judgment was premature; (2) summary judgment was improper because Appellees did not prove the absence of fact issues; and (3) summary judgment was improper as to the civil conspiracy count. We affirm the trial court's summary judgment on all counts, except the civil conspiracy count. As to that count, we adopt the well-reasoned opinion of our sister court in Rey v. Philip Morris, Inc., 75 So. 3d 378 (Fla. 3d DCA 2011).^[2]

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ., concur.

NOTES

[1] Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla.2006).

[2] At oral argument, counsel alerted this Court that Vector Group, Ltd., had not been a defendant in Engle and might have other defenses not yet addressed below. For clarity, our decision today only addresses issues that were properly before us.