CopyCited 6 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 10909, 2011 WL 2685609
...Philo, of The Mills Firm, Tallahassee, Florida, for Appellee. ON MOTION FOR REVIEW OF STAY ORDER WETHERELL, J. Appellee seeks review of the trial court's order denying her motion challenging the sufficiency of the bond posted by Appellant, R.J. Reynolds Tobacco Company (RJR), pursuant to section 569.23(3), Florida Statutes (2010), to obtain a stay of the judgment in this Engle [1] progeny case. Appellee contends that the bond is insufficient because the statute upon which it is based is unconstitutional. We reject Appellee's constitutional challenges to section 569.23(3) and affirm the trial court's order. Appellee obtained a $15.75 million judgment against RJR in this case. RJR appealed the judgment to this court and obtained an automatic stay of the judgment by posting a $5 million bond in accordance with section 569.23(3), rather than the approximately $17.6 million bond that would have been required for a stay under Florida Rule of Appellate Procedure 9.310(b)(1). Appellee filed a motion with the trial court to determine the sufficiency of the bond and, in that motion, Appellee argued that section 569.23(3) was unconstitutional....
...District Court of Appeal's decision in BDO Seidman, LLP v. Banco Espirito Santo International, Ltd. [3] Appellee seeks review of the trial court's order pursuant to rule 9.310(f). [4] As she did below, Appellee contends in her motion for review that section 569.23(3) is unconstitutional because 1) it is a special law granting a privilege to a corporation in violation of article III, section 11(a)(12) of the Florida Constitution, and 2) it impermissibly intrudes on the Florida Supreme Court's aut...
...ractice and procedure in the courts under article V, section 2(a), thereby violating the separation of powers mandate in article II, section 3. Each claim will be addressed in turn after a brief discussion of the background, history and operation of section 569.23(3)....
...ng that "[w]hile the tobacco settlement payments are to be made in perpetuity, there is concern by some that the companies may declare bankruptcy and default on their obligations" because of lawsuits such as Engle ). In 2003, the Legislature enacted section 569.23. This statute established a $100 million cap on the bond or other security that a signatory to the FSA had to post in order to obtain a stay of any judgment pending appeal. See § 569.23(1), Fla....
...amended, entered into by the state and participating cigarette manufacturers in settlement of State of Florida v. American Tobacco Co., No. 95-1466 AH,
1996 WL 788371 (Fla. 15th Cir. Ct.1996)"). As was the case with section
768.733, the enactment of section
569.23(3) was based on concerns that the FSA signatories might default on their obligations to *1088 the State if they could not afford the bond required to stay an extremely large money judgment pending appeal. See Fla. S. Comm. on Judiciary SB 2826 [6] Staff Analysis 3 (Apr. 18, 2003) (on file with comm.). Section
569.23 was amended in 2009 in response to the Florida Supreme Court's decision in Engle, which had the practical effect of decertifying the class in that case....
...uits within a certain time period. As a result of this case, there are approximately 3,000 separate lawsuits in which damages may be awarded. Prior to this decertification, the class action suit would have been covered by the supersedeas bond cap in s. 569.23, F.S. However, the separate 3,000 cases are not currently covered by s. 569.23, F.S., which would mean that the tobacco companies may have to post supersedeas bonds in up to 3,000 separate cases that could cumulatively total billions of dollars....
...at 3 (noting that the cost of the individual and class action lawsuits against the FSA signatories is a factor affecting the stability of the tobacco settlement payments). The 2009 amendments retained and revised the $100 million bond limit created in 2003. See § 569.23(2), Fla....
...of the appellee. Upon satisfaction of the judgment in any case, the clerk of the Supreme Court may refund any security on deposit with respect to that case to the appellant upon an order from the trial court confirming satisfaction of the judgment. § 569.23(3), Fla. Stat. Section 569.23(3) has two main components....
...First, it provides that, upon posting a bond or other security in accordance with the statute, a signatory to the FSA is entitled to an automatic stay of the judgment in any civil case brought by or on behalf of a person who was a member of a decertified class action. § 569.23(3)(a)1., Fla. Stat. Second, and most pertinent to the issue framed by Appellee's motion for review, the statute limits the amount of security that the signatory is required to post in order to obtain the automatic stay provided by the statute. § 569.23(3)(a)2., Fla....
...equired to obtain a stay under the statute is the lesser of the amount of the judgment or $5 million. The statute also imposes several reporting and record retention requirements on the FSA signatories and the Clerk of the Florida Supreme Court. See § 569.23(3)(e), Fla. Stat. This information is maintained on the supreme court's website. See http://www.floridasupremecourt.org/clerk/bonds.shtml. With this background in mind, we turn to Appellee's claims that section 569.23(3) is unconstitutional. Section 569.23(3) is Presumed Constitutional Like any other statute, section 569.23(3) comes to this court with a presumption of constitutionality....
...ts judicial knowledge that the Legislature could not have had any reasonable ground for believing that there were public considerations justifying the particular classification and distinction made." Lewis v. Mathis,
345 So.2d 1066, 1068 (Fla.1977). Section
569.23(3) is not a Special Law Appellee contends that section
569.23(3) is a special law and that it violates article III, section 11(a)(12) because of its narrow application and the benefits it grants to RJR and the other FSA signatories....
...See Lawnwood Med. Ctr., Inc. v. Seeger,
990 So.2d 503, 509 (Fla.2008) (invalidating a statute that provided a special benefit to a single hospital and holding that the term "privilege" is not limited to economic benefits). The parties disagree on whether section
569.23(3) is a special law. If the statute is a special law, then it is subject to the limitations in article III, section 11; if, however, the statute is a general law, then article III, section 11 is not applicable. Thus, before considering whether section
569.23(3) has the effect of granting a "privilege" to the FSA signatories, it is necessary to consider the threshold question of whether the statute is a general or special law....
...Classic Mile, Inc.,
541 So.2d 1155, 1157 (Fla. 1989) ("A law that operates universally throughout the state, uniformly on subjects as they may exist throughout the state, or uniformly within a permissible classification is a general law."). Appellee contends that section
569.23(3) is a special law because it applies only to the five tobacco companies that signed the FSA and the plaintiffs in the Engle progeny cases. The narrow scope of section
569.23(3) is not necessarily dispositive of whether the statute is a special law because the Florida Supreme Court has explained that "a law does not have to be universal in application to be a general law if it materially affects the people of the state." St....
...r in like circumstances. Id. at 883. Likewise, in this case, we agree with RJR that the protection of the State's pecuniary interest in the revenue stream under the FSA is a matter of significant statewide importance and that the bond limitations in section 569.23(3) are reasonably related to this important state interest....
...Here, the importance of the FSA revenue stream to the State and the prospect of a multitude of individual multi-million jury awards against the FSA signatories (whether arising out of Engle or other decertified class actions) provides an adequate justification for the narrow focus of the section 569.23(3)....
...ral application turns on a determination of whether its application to others is reasonable or practical, not theoretical or speculative. The question of general application is not to be guided by irrational speculation that anything is possible."). Section 569.23(3), like the statute at issue in Sanford-Orlando Kennel Club, was specifically intended to apply to the Engle litigation and, at the time of its passage, the scope of the statute's application was limited to that litigation....
...ation's four largest tobacco companies, may be the subject of other class actions that end up being decertified. Indeed, due to the tobacco industry's reputation as a deep-pocket defendant and "a present-day popular villain," [9] the likelihood that section 569.23(3) will have a broader application than the Engle progeny cases is certainly not theoretical or speculative; thus, the class of cases subject to the statute is not closed. In sum, we conclude that section 569.23(3) is a general law, not a special law. Accordingly, the provisions of article III, section 11 are not implicated and it is not necessary to consider whether, under Lawnwood Medical Center, the bond limitation in section 569.23(3) is a "privilege" granted to the FSA signatories. Section 569.23(3) Does Not Violate Separation of Powers Appellee also contends that section 569.23(3) violates the separation of powers mandate in article II, section 3 [10] because the statute addresses a purely procedural matter over which the Florida Supreme Court has exclusive rulemaking authority under article V, section 2(a)....
...racterized as substantive or procedural according to the nature of the *1093 problem for which a characterization must be made." In re Florida Rules of Criminal Procedure,
272 So.2d 65, 66 (Fla. 1972) (Adkins, J., concurring). Appellee contends that section
569.23(3) impermissibly intrudes upon the supreme court's rulemaking authority because the circumstances under which a judgment may be stayed pending appeal is a purely procedural matter....
...pressly authorizes modifications to its terms as `provided by general law'"); In re Proposed Florida Appellate Rules,
351 So.2d 981, 1010 (Fla.1977) (stating in the commentary to rule 9.310 that "[t]he rule preserves any statutory right to a stay"). Section
569.23(3) clearly falls within the "except as provided by general law" clause....
...; but it also establishes limits on the amount of the bond required to secure the stay. The establishment of limits on the amount of the bond required for a stay pending appeal is a substantive matter within the purview of the Legislature and, thus, section 569.23(3) does not impermissibly intrude on the authority granted to the Florida Supreme Court by article V, section 2(a)....
...By contrast, the statute at issue in this case (like the statute in BDO Seidman ) simply limits the amount of the bond that is required to obtain a stay pending review. Thus, this case is more similar to BDO Seidman than it is to Begley. In sum, we conclude that section 569.23(3) does not impermissibly intrude on the Florida Supreme Court's rulemaking authority under article V, section 2(a) and, therefore, the statute does not violate the separation of powers mandate in article II, section 3. Conclusion For the reasons stated above, we hold that section 569.23(3) is constitutional and we affirm the trial court's order denying Appellee's motion to determine the sufficiency of the bond posted by RJR pursuant to the statute....
...We recognize that the issues framed by Appellee's motion implicate significant public policy issues of statewide importance because there are thousands of Engle progeny cases pending around the state and there are an increasing number of multi-million dollar judgments in excess of the thresholds in section 569.23(3) being entered and appealed in those cases....
...Accordingly, because the issues in this case are likely to continue to arise around the state until the issues are definitively resolved by the Florida Supreme Court, we also certify the following question of great public importance to the supreme court: DOES SECTION 569.23(3), FLORIDA STATUTES (2010), VIOLATE ARTICLE III, SECTION 11(a)(12) OR ARTICLE II, SECTION 3 OF THE FLORIDA CONSTITUTION BY LIMITING THE AMOUNT OF THE BOND NECESSARY TO OBTAIN AN AUTOMATIC STAY OF A JUDGMENT AGAINST A SIGNATORY TO THE...
...scretionary jurisdiction of the Florida Supreme Court. See City of Miami v. Arostegui,
616 So.2d 1117, 1119 (Fla. 1st DCA 1993). The issue framed by the motion was not rendered moot by our decision affirming the judgment because the stay provided by section
569.23(3) extends "during the pendency of all appeals or discretionary appellate reviews of such judgment in Florida courts." §
569.23(3)(a)1., Fla. Stat. [5] CS/HB 1721 became chapter 2000-128, Laws of Florida, which enacted section
768.733. [6] SB 2826 became chapter 2003-133, Laws of Florida, which enacted section
569.23. [7] CS/SB 2198 became chapter 2009-188, Laws of Florida, which included the amendments to section
569.23....
CopyPublished | Florida 4th District Court of Appeal
...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....
...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....
...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.
2
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....
...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....
...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
3
garnishment....
...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....
...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....
CopyPublished | Florida 1st District Court of Appeal | 2016 WL 1425888, 2016 Fla. App. LEXIS 5539
...o file a petition for review in the United States Supreme Court. The rules of the United States Supreme Court give petitioners ninety days from the date of the order below (until May 2, 2016 in this case) to file a petition. And Reynolds argues that section 569.23(3), Florida Statutes — a provision addressing bonding requirements in tobacco cases involving signatories to the State’s 1997 tobacco settlement agreement — entitles it to receive an automatic stay of execution of the judgment un...
...We agree that the trial court should have entered the automatic stay while Reynolds exercises its right to seek further review, and that the statute has suspended the finality of the judgment for purposes of execution until all reviews are completed, “including reviews by the Florida Supreme Court.!’ § 569.23(3)(b) & (c), Fla....
....5 million judgment in state court against Reynolds in June 2013. Reynolds appealed and posted a $5 million bond as required by the statute to receive an automatic stay of execution during its appeals to this court and the Florida Supreme Court. See § 569.23(3)(a)l, Fla. Stat. These state appeals ran their course when the Florida Supreme Court declined jurisdiction on February 2, 2016. At that point, the parties began disputing the parameters under which the stay of execution could remain in place under § 569.23(3), while Reynolds considered filing for .United States Supreme Court review....
...filed a petition for review in the United States Supreme Court within ten days. Ms. Sikes offered'to voluntarily refrain from executing if Reynolds filed a motion contesting the stay issue before February 15, 2016. Reynolds then filed a motion under § 569.23(3)(b), Florida Statutes, to confirm the automatic stay in the trial court. Reynolds also increased its bond to more than $5.5 million as required to stay execution while seeking United States Supreme Court review. See § 569.23(3)(b)2, Fla....
...rida Rules of Appellate Procedure, See Lampert-Sacher v. Sachet,
120 So.3d 667, 668 (Fla. 1st DCA 2013). II. Whether an- automatic stay must be entered under the circumstances presented in this case presents a question of law that we review de novo; Section
569.23(3) sets forth the terms by which tobacco settlement signatories like Reynolds can stay the execution of Engle-related judgments. See R.J. Reynolds Tobacco Co. v. Hall,
67 So.3d 1084, 1087-89 (Fla. 1st DCA 2011) (detailing the history and purpose underlying §
569.23)....
...ng a review by the United States Supreme Court, the trial court shall automatically stay the' execution of the judgment in any such action during the pendency of the appeal, upon provision of security as required in this paragraph. (Emphasis added). Section 569.23(3)(c) follows up on these provisions by protecting the bond from a plaintiffs claims until thirty days after completion of all appeals or reviews: A claim may not be made against the security provided by an appellant unless an appellan...
...For purposes of this subsection,, a judgment is “final” following the completion of all appeals or discretionary appellate reviews, including reviews by the United States Supreme Court. (Emphasis added.). The central question in this case is what act is required under § 569.23(3)(b)l for an appellant to demonstrate that it is “ex-ercis[ing] its right to seek ......
...ht away until Reynolds actually files a petition for writ of certiorari in the United States Supreme Court. Hence, she contacted Reynolds three days after the Florida Supreme Court denied review seeking to execute. Her interpretation reads gaps into § 569.23(3)’s bonding and stay regime, so that when a court reaches a result, and prior to the filing of a notice of appeal or review in the next court, a plaintiff can quickly move to execute on the judgment....
...Just as Reynolds previously posted a $5 million supersedeas bond into the registry of the Florida Supreme Court in order to stay execution while taking state court appeals, *494 see § 569;23(3)(a)2, :it has now increased the amount of the bond to $5.5 million as required in § 569.23(3)(b)2 to extend thé stay pending review by the United States Supreme Court....
...ed by the statute. The only reasonable' interpretation of its decision to increase the bond to the exact amount, required for seeking further review is that it was exercising its right- to seek further review in the United States Supreme Court under § 569.23(3)(b)l....
...ticularly remarkable. Adopting Ms. Sikes’ interpretation of “exercises” would also thwart the statute’s detailed provision bonding and stay regime, We’ve discussed before the history and significant state purpose underlying the adoption of § 569.23(3)’s regime, which prevents the disruptive effect of adverse judgments while appeals and discretionary review proceedings remain....
...Given the steps that Reynolds has already taken to invoke its rights to seek further review, increasing its bond and seeking to confirm the stay below, we conclude that it is presently exercising its right to seek United-" States Supreme Court review for purposes of § 569.23(3)(b)l, even if it hasn’t yet filed a petition. Finally, § 569.23(3)(c) supports entry of a stay of execution because it defines when a judgment is “final” for purposes of a proceeding against the bond; It’says that “[f]or purposes of this subsection, a judgment is ‘final’ following the completion of all appeals or discretionary appellate reviews, including reviews by the United States 'Supreme Court.” § 569.23(3)(c), Fla....
...Stat." For this reason, too, the judgment entered in favor of Ms. Sikes cannot be considered final for purposes of subsection (3), until the United States Supreme Court review process runs its course. III. For-all of these reasons, Reynolds is entitled to the automatic stay provided in § 569.23(3)(b)l until the United States Supreme Court completes review, or the period for filing a- certiorari petition expires. We reverse the trial court’s order denying the automatic stay and remand for entry of an automatic stay of execution of the judgment to accordance with the foregoing, and § 569.23(3)(b)l....
