Frost v. LORILLARD TOBACCO COMPANY

85 So.3d 1209 (2012)

Tammy L. FROST, As Personal, etc., Appellant,
v.
LORILLARD TOBACCO COMPANY, et al., Appellees.

No. 5D10-2004.

District Court of Appeal of Florida, Fifth District.

April 27, 2012.

Christopher V. Carlyle, B.C.S., and Shannon McLin Carlyle, B.C.S., of The Carlyle Appellate Law Firm, The Villages, Rod Smith and Dawn M. Vallejos-Nichols of Avera & Smith, LLP, Gainesville, for Appellant.

David L. Ross, Elliott H. Scherker and Brigid F. Cech Samole of Greenberg, Traurig, P.A., Miami, for Appellee Lorillard Tobacco Co.

Karen H. Curtis of Clarke Silverglate, P.A., Miami, for Liggett Group LLC and Vector Group, Ltd., Inc.

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, and Jeffrey E. Bigman of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, for Appellee Philip Morris USA, Inc.

ON MOTION FOR REHEARING

PER CURIAM.

We grant Appellant's motion for rehearing, withdraw our earlier opinion, and substitute the following opinion in its place.

Appellant challenges the summary judgment in favor of Lorillard Tobacco Company, Vector Group, Ltd., Inc., and Liggett Group, LLC (collectively "Appellees") in this Engle^[1]-progeny case. Appellant argues 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.