         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                               NOT FINAL UNTIL TIME EXPIRES TO
                                               FILE MOTION FOR REHEARING AND
                                               DISPOSITION THEREOF IF FILED


DEMOND MANSFIELD AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF
THELMA BROWN,

             Appellant,

 v.                                                 Case No. 5D16-1826

R.J. REYNOLDS TOBACCO COMPANY,
PHILIP MORRIS USA AND LORILLARD
TOBACCO COMPANY,

             Appellees.

________________________________/

Opinion filed November 3, 2017

Appeal from the Circuit Court
for Osceola County,
Kevin B. Weiss, Judge.

Willie E. Gary, Donald N. Watson, and
Charles L. Scott, Jr., of Gary, Williams,
Parenti, Watson & Gary PLLC, Stuart, for
Appellant.

Geoffrey J. Michael, of Arnold & Porter LLP,
Washington, D.C., Cathy A. Kamm, Daniel
F. Molony and Kristopher J. Verra, of
Shook, Hardy & Bacon LLP, Tampa, and
Jennifer Blues Kenyon, of Shook, Hardy &
Bacon LLP, Kansas City, Mo. for Appellee,
Philip Morris USA.

Jason T. Burnette of Jones Day, Atlanta,
GA, Troy A. Fuhrman and Marie A. Borland,
of Hill, Ward & Henderson, P.A., Tampa for
Appellee,    R.J.    Reynolds    Tobacco
Company.       Dawn Giebler Millner, of
Greenberg Traurig, P.A., Orlando, for
Appellee, R.J. Reynolds Tobacco Company
as successor-by merger of Lorillard
Tobacco Company.


PER CURIAM.

       Demond Mansfield, as Personal Representative of the Estate of Thelma Brown,

deceased, appeals the final summary judgment entered in favor of R.J. Reynolds

Tobacco Company and Philip Morris USA (collectively, "Tobacco Companies") on their

statute of limitations defense. We reverse and, consistently with Strax Rejuvenation and

Aesthetics Institute, Inc. v. Shield, 49 So. 3d 741 (Fla. 2010), remand for an evidentiary

hearing to determine if Mansfield’s complaint was timely filed.

       Mansfield sued Tobacco Companies, alleging that the decedent, Thelma Brown,

purchased and smoked cigarettes containing nicotine that were designed, manufactured,

advertised, and marketed by Tobacco Companies and that as a result, the decedent

became addicted to these cigarettes. Mansfield asserted that the decedent’s addiction

to cigarettes caused her to contract illnesses that proximately led to her death. Mansfield

further alleged that the decedent was a member of the class that initially brought a class

action suit against Tobacco Companies for injuries caused by smoking and that obtained

a final judgment for punitive damages. In Engle v. Liggett Group, Inc., 945 So. 2d 1246

(Fla. 2006), the Florida Supreme Court vacated this final judgment and decertified the

class, but it allowed each individual class member to separately bring his or her own

action for damages, provided that any such suit must be filed within one year of the court's

mandate. 945 So. 2d at 1276–77. Mandate issued in Engle on January 11, 2007, thus




                                             2
LAMBERT, J., concurring specially, with opinion.                                 5D16-1826


       I fully concur with the majority opinion to reverse and remand this case for the trial

court to hold an evidentiary hearing consistent with Strax. Mindful that appellate courts

are not empowered to make findings of fact, Boyles v. A & G Concrete Pools, Inc., 149

So. 3d 39, 51–52 (Fla. 4th DCA 2014), I nevertheless write to explain why, in my view,

the evidence suggests that Mansfield's complaint was timely filed.

       The record summary judgment evidence shows that on January 11, 2008, the

Osceola County clerk issued an "official clerk receipt," which clearly states that on that

day the clerk received a $259 check from Mansfield's attorneys as a filing fee for a

complaint that it received that day that was described in the receipt as “Mansfield v. R.J.

Reynolds.” The receipt also indicates that the complaint was assigned case number CI-

08-ON-238. What also appears undisputed is that the law firm's check for the filing fee

was inadvertently made payable to the Orange County Clerk of Court instead of the

Osceola County Clerk of Court. The affidavits filed by Mansfield's attorneys state that the

Osceola Clerk of Court's office later telephoned counsel about this discrepancy and that

on Monday, January 14, 2008, the attorneys delivered a second check to the clerk’s office,

this time payable to the Osceola County Clerk of Court. At 4:47 P.M. on January 14,

2008, the Osceola County clerk time-stamped a complaint titled “Mansfield v. R.J.

Reynolds Tobacco Company,” but assigned case number CI-08-ON-311 to the complaint.

It is the complaint assigned case number CI-08-ON-311 that was later determined by the

trial court to be untimely filed.




                                             5
subject complaint and a filing fee check was delivered to the clerk of court in Osceola

County and that the clerk of court issued a receipt showing that the complaint was filed

by Mansfield against Tobacco Companies on that day. These circumstances present an

unresolved question of fact. In Strax, the court ruled that in those rare cases where a

paper is delivered to the clerk’s office within the jurisdictional time frame but, for some

reason, through inadvertence or error is not timely stamped by the clerk, it is appropriate

to remand for an evidentiary hearing to determine if the document was timely filed. 49

So. 3d at 744–45. Accordingly, we remand this matter back to the trial court for an

evidentiary hearing to allow Mansfield the opportunity to rebut the presumption that his

suit was filed on January 14, 2008, with competent substantial evidence that the

complaint was in fact timely received by the Osceola County Clerk of Court on January

11, 2008.

       REVERSED and REMANDED for an evidentiary hearing consistent with this

opinion.

SAWAYA and EVANDER, JJ., concur.
LAMBERT, J., concurs specially, with opinion.




                                            4
LAMBERT, J., concurring specially, with opinion.                                 5D16-1826


       I fully concur with the majority opinion to reverse and remand this case for the trial

court to hold an evidentiary hearing consistent with Strax. Mindful that appellate courts

are not empowered to make findings of fact, Boyles v. A & G Concrete Pools, Inc., 149

So. 3d 39, 51–52 (Fla. 4th DCA 2014), I nevertheless write to explain why, in my view,

the evidence suggests that Mansfield's complaint was timely filed.

       The record summary judgment evidence shows that on January 11, 2008, the

Osceola County clerk issued an "official clerk receipt," which clearly states that on that

day the clerk received a $259 check from Mansfield's attorneys as a filing fee for a

complaint that it received that day that was described in the receipt as “Mansfield v. R.J.

Reynolds.” The receipt also indicates that the complaint was assigned case number CI-

08-ON-238. What also appears undisputed is that the law firm's check for the filing fee

was inadvertently made payable to the Orange County Clerk of Court instead of the

Osceola County Clerk of Court. The affidavits filed by Mansfield's attorneys state that the

Osceola Clerk of Court's office later telephoned counsel about this discrepancy and that

on Monday, January 14, 2008, the attorneys delivered a second check to the clerk’s office,

this time payable to the Osceola County Clerk of Court. At 4:47 P.M. on January 14,

2008, the Osceola County clerk time-stamped a complaint titled “Mansfield v. R.J.

Reynolds Tobacco Company,” but assigned case number CI-08-ON-311 to the complaint.

It is the complaint assigned case number CI-08-ON-311 that was later determined by the

trial court to be untimely filed.




                                             5
       Tobacco Companies and the trial court appear to place great significance on the

fact that there were two different case numbers. This would be significant only if there

was a separate, unrelated suit filed by Mansfield against Tobacco Companies on January

11 and the instant suit “filed” on January 14. At the first of two summary judgment

hearings held below, the trial court determined that case number CI-08-ON-238 did “not

belong to a case in the clerk’s system.” However, the evidence suggests that something

was filed by Mansfield on January 11, 2008, against Tobacco Companies; otherwise, the

clerk would not have issued the receipt for a filing fee reflecting the filing of a complaint

by Mansfield on that date.

           What appears to be the most plausible explanation here is that only one complaint

was filed by Mansfield against Tobacco Companies and that it was received by the

Osceola County clerk on January 11. The case was assigned case number CI-08-ON-

238, but because the filing fee check was made payable to the wrong clerk of court, the

clerk backed that case number out of its system. Then, when the check properly payable

to the Osceola County Clerk of Court was delivered to the clerk on Monday, January 14,

the clerk assigned the complaint a new case number (CI-08-ON-331), because other

unrelated cases had been filed in the interim and other case numbers had been assigned

to these separate cases. This explanation is further supported by a close review of the

more detailed, photographed copy of Mansfield’s complaint contained in the supplemental

records filed with this court. It is evident that something was "whited out" 2 on the first

page of the complaint over which the clerk’s date stamp of January 14, 2008, 4:47 P.M.



       2 Our present system of electronic filing was not in effect in the Osceola County
clerk’s office back in 2008. Back then, a white liquid substance was at times used to
correct mistakes on documents; hence, the term “white out.”

                                              6
stamp was later placed. An examination of the reverse side of the first page of this same

document appears to show, through the “white out,” an Osceola County Clerk of Court

date stamp bearing a date and time of January 11, 2008 at 9:42 A.M. Assuming that the

competent evidence at the evidentiary hearing bears all this out, then Mansfield’s

complaint was timely filed and Tobacco Companies’ Engle statute of limitations defense

is without merit.




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