R.J. REYNOLDS TOBACCO COMPANY v. JAN GROSSMAN, as Personal Representative of the ESTATE OF LAURA GROSSMAN

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
R.J. REYNOLDS TOBACCO COMPANY,
Appellant,
v.
JAN GROSSMAN, as Personal Representative of the Estate
of LAURA GROSSMAN, deceased,
Appellee.
No. 4D18-627
[June 6, 2018]
Appeal and cross-appeal of non-final order from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson,
Judge; L.T. Case No. 08-025828 (09).
Jason T. Burnette of Jones Day, Atlanta, Georgia, and Charles R.A.
Morse of Jones Day, New York, New York, for appellant.
Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm
Beach, and Jonathan R. Gdanski and Scott P. Schlesinger of Schlesinger
Law Offices, P. A., Fort Lauderdale, for appellee.
CONNER, J.
R.J. Reynolds Tobacco Company (“RJ Reynolds”) appeals a trial court
order denying its motion to dissolve a writ of garnishment and to stay
execution of the judgment entered in favor of the appellee, Jan Grossman
(“Grossman”), as personal representative of the Estate of Laura Grossman.
The judgment was entered in an Engle 1 tobacco litigation case. RJ
Reynolds asserts two grounds for reversal: (1) its compliance with section
569.23, Florida Statutes (2017), protects it from execution while appellate
review of the final judgment is pending; and (2) there is no final judgment
upon which execution can issue because this Court reversed a portion of
the final judgment and review is pending in our supreme court. Grossman
cross-appeals and argues that section 569.23 is unconstitutional.
Because we agree with RJ Reynolds on the application of section 569.23
to the proceedings, we reverse and remand for entry of a stay of execution.
1 See Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
We sua sponte dismiss the cross-appeal as an attempt to appeal an order
already providing Grossman the full relief he sought. Additionally, there
was no ruling by the trial court on the constitutionality of the statute, and
no compliance with the notice requirements for that challenge.
Background
Grossman brought an Engle-progeny lawsuit against RJ Reynolds after
the death of his wife, who he alleged was addicted to cigarettes and died
of lung cancer. Grossman alleged multiple claims, including strict liability,
fraud by concealment, conspiracy to commit fraud by concealment, and
negligence, among others. The jury apportioned fault for compensatory
damages, but the trial judge declined to reduce the compensatory damages
by comparative fault. Judgment was entered against RJ Reynolds for
compensatory and punitive damages. On appeal, we held that the trial
court was required to reduce the compensatory damage award by the
parties’ comparative fault as determined by the jury. R.J. Reynolds
Tobacco Co. v. Grossman, 211 So. 3d 221, 229 (Fla. 4th DCA 2017).
After our decision, both sides sought review by our supreme court. The
court denied review of RJ Reynolds’s petition. As of the date of this
opinion, review of Grossman’s petition is still pending.
After judgment was entered against it, RJ Reynolds posted an initial
bond in compliance with section 569.23, and subsequently increased the
amount of the bond. After petitioning our supreme court for review,
Grossman moved for a writ of garnishment, which was issued by the trial
court clerk of court. When the writ was served on a bank used by RJ
Reynolds, several millions of dollars were debited from accounts held by
RJ Reynolds. RJ Reynolds filed an emergency motion to dissolve the writ
of garnishment and to confirm a stay of execution. It argued that the
judgment Grossman was seeking to satisfy was not final, as it was pending
review by our supreme court. Additionally, it argued that it had posted a
supersedeas bond that automatically stayed execution during review of the
case by both our supreme court and the United States Supreme Court or
until the time for filing a certiorari petition had expired.
The trial court denied RJ Reynolds’s motion to dissolve the writ or
confirm a stay of execution, reasoning that the only appeal pending was
Grossman’s petition (as opposed to review sought by RJ Reynolds) and
that any review by the United States Supreme Court would be “futile,”
given recent case law by that court. RJ Reynolds gave notice of appeal.
Subsequently, Grossman cross-appealed, contending section 569.23 is
unconstitutional.
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Appellate Analysis
Insofar as RJ Reynolds’s appellate challenges are based on
interpretation and application of statutes, our review is de novo. Kane v.
Stewart Tilghman Fox & Bianchi, P.A., 197 So. 3d 137, 139 (Fla. 4th DCA
2016). Grossman’s constitutionality challenges are also reviewed de novo.
City of Ft. Lauderdale v. Dhar, 185 So. 3d 1232, 1234 (Fla. 2016).
Section 569.23(3), Florida Statutes, provides that tobacco settlement
signatories such as RJ Reynolds can stay execution of Engle-related
judgments by posting bond. See R.J. Reynolds Tobacco Co. v. Hall, 67 So.
3d 1084, 1087-89 (Fla. 1st DCA 2011). Subsection (a)1., dealing with
Florida court appeals of such judgments, provides:
In civil actions against a signatory, or a successor, parent, or
affiliate of a signatory, to a tobacco settlement agreement
brought by or on behalf of persons who claim or have been
determined to be members of a former class action that was
decertified in whole or in part, the trial courts shall
automatically stay the execution of any judgment in any such
actions during the pendency of all appeals or discretionary
appellate reviews of such judgment in Florida courts, upon
provision of security as required in this paragraph. All
security shall be provided through the posting with or
payment into the registry of the clerk of the Supreme Court.
§ 569.23(3)(a)1., Fla. Stat. (2017) (emphasis added).
RJ Reynolds argues that by posting a $15 million bond, it is statutorily
entitled to an automatic and continuous stay of execution processes until
thirty days after the end of all appellate proceedings in Florida.
Additionally, it argues that the bond posting means that the automatic
stay extends to any review proceedings filed in federal court after state
court review proceedings have ended. No issue was raised below or on
appeal by Grossman regarding the sufficiency of the bond posted. What
Grossman contests is RJ Reynolds’s assertion that the stay under section
569.23(3) applies to any future review sought by RJ Reynolds in federal
court. Because there currently is no appellate review pending in any
federal court, we decline to address that issue. This Court has no
authority to issue an advisory opinion. State v. Barati, 150 So. 3d 810,
813 (Fla. 1st DCA 2014).
The record establishes that RJ Reynolds posted a sufficient bond
pursuant to section 569.23(3)(a)1., and is entitled to a stay of execution.
We therefore conclude the trial court erred by not staying the writ of
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garnishment. However, we are satisfied that the trial court did not err in
declining to dissolve the writ of garnishment. See Freedom Insurors, Inc.
v. M.D. Moody & Sons, Inc., 869 So. 2d 1283, 1285 (Fla. 4th DCA 2004)
(affirming trial court stay of garnishment, rather than dissolution of the
writ, because debtor had filed supersedeas bond in appeal from underlying
judgment); Fla. Steel Corp. v. A. G. Spanos Enters., Inc., 332 So. 2d 663,
665 (Fla. 2d DCA 1976) (explaining that because a supersedeas has the
effect of suspending the proceedings, it is more appropriate to grant a stay,
rather than dissolve a writ of garnishment).
Additionally, the parties put forth arguments regarding whether
garnishment proceedings are appropriate as to the portion of the final
judgment awarding punitive damages, which was not reversed in the prior
appeal before this Court. We need not address those arguments, in view
of our disposition regarding the application of section 569.23(3)(a)1. and
RJ Reynolds’s entitlement to a stay of execution.
We also dismiss the cross-appeal attacking the constitutionality of
section 569.23. There is no order from the trial court explicitly addressing
the constitutional arguments Grossman asserted below, and we do not
construe the rulings of the trial court to implicitly address the
constitutionality of the statute. A cross-appeal is intended to “call into
question error in the judgment appealed, which, although substantially
favorable to the appellee, does not completely accord the relief to which
appellee believes itself entitled.” Webb Gen. Contracting Inc. v. PDM
Hydrostorage, Inc., 397 So. 2d 1058, 1059-60 (Fla. 3d DCA 1981). Below,
Grossman was accorded the full relief he sought in the circuit court.
Having failed to obtain a ruling on the constitutionality of section 569.23,
he should not be permitted to present arguments regarding his
constitutional challenge on appeal. Further, we agree with RJ Reynolds’s
argument that the trial court could not have properly considered the
constitutionality of the statute because the notice requirements of Florida
Rule of Civil Procedure 1.071 and section 86.091, Florida Statutes (2017),
requiring notice to the Attorney General or state attorney of the judicial
circuit where the action is pending, were not complied with. Thus, we
follow the general rule that the constitutionality of a statute be considered
first by the trial court. Dickinson v. Stone, 251 So. 2d 268, 271 (Fla. 1971).
Reversed and remanded with instructions; cross-appeal dismissed.
GERBER, C.J., and CIKLIN, J., concur.
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Not final until disposition of timely filed motion for rehearing.
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