                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

R. J. REYNOLDS TOBACCO                 NOT FINAL UNTIL TIME EXPIRES TO
COMPANY,                               FILE MOTION FOR REHEARING AND
                                       DISPOSITION THEREOF IF FILED
      Appellant,
                                       CASE NO. 1D15-1291
v.

DIANNE WEBB, PERSONAL
REPRESENTATIVE OF THE
ESTATE OF JAMES CAYCE
HORNER,

      Appellee.


_____________________________/

Opinion filed March 21, 2016.

An appeal from the Circuit Court for Levy County.
Stanley H. Griffis, III, Judge.

Jeffrey L. Furr of King & Spalding, LLP, Charlotte, NC; William L. Durham, II,
Valentin Leppert, Chad A. Peterson, Frank T. Bayuk, Phillip R. Green of King &
Spalding, LLP, Atlanta, GA, Jeffrey A. Yarbrough, Robert B. Parrish, David C.
Reeves of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville, Stephanie E.
Parker, John F. Yarber, John M. Walker of Jones Day, Atlanta, GA, for Appellant.

Mark A. Avera and Dawn M. Vallejos-Nichols of Avera & Smith, Gainesville;
James W. Gustafson, Jr. of Searcy, Denney, Scarola, Barnhart & Shipley, P.A.,
Tallahassee; David J. Sales of David J. Sales, P.A., Jupiter; Steven Brannock, Celene
H. Humphries, Tyler K. Pitchford of Brannock & Humphries, Tampa, for Appellee.
LEWIS, J.

         In this Engle-progeny case, 1 Appellant, R.J. Reynolds Tobacco Company,

challenges the trial court’s Final Judgment for Resolution Funds and argues that

because Appellee, Dianne Webb, as personal representative of the estate of her

father, James Cayce Horner, was not entitled to collect the money damages awarded

to her following the appeal of the initial final judgment, the parties’ agreement as to

attorney’s fees is unenforceable. We agree with Appellant and, therefore, reverse.

         Appellee filed a wrongful death action against Appellant, raising claims of

strict liability, fraud by concealment, conspiracy to commit fraud by concealment,

and negligence. In accordance with the jury’s verdict, the trial court entered a Final

Judgment (“2010 Final Judgment”), wherein it directed Appellant to pay Appellee

$7,200,000 in compensatory damages and $72,000,000 in punitive damages, for a

total sum of $79,200,000. Following the entry of the 2010 Final Judgment, Appellee

filed Plaintiff’s Motion to Tax Fees and Costs based on a proposal for settlement.

         The parties entered into an attorney’s fee agreement (“Agreement”) on May

20, 2011, which set forth in part:

               WHEREAS, on November 10, 2009, Plaintiff filed a severed
         lawsuit against Defendant . . . .

              WHEREAS, on November 29, 2010, the trial court entered a
         judgment (“Final Judgment”) against Defendant;


1
    Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
                                             2
      WHEREAS, on December 17, 2010, Plaintiff filed a motion to
recover taxable costs and attorney’s fees she claims to have incurred in
her prosecution of the Lawsuit (“Motion to Tax Fees and Costs”);

       WHEREAS, Plaintiff and Defendant desire to resolve Plaintiff’s
Motion to Tax Fees and Costs by stipulating to an agreed dollar amount
of fees and costs that Plaintiff has incurred through the date of this
agreement (the “Resolution Funds”), without affecting any applications
for attorney’s fees and costs arising for work performed after the date
of this Agreement;

      WHEREAS, on or about December 13, 2010, Defendant filed a
notice of appeal to the First District Court of Appeal of the Final
Judgment rendered in favor of Plaintiff in the Lawsuit . . . .

      WHEREAS, Defendant expressly reserves its right to contest,
through the Appeal or otherwise, the Final Judgment entered on
November 29, 2010.

      NOW THEREFORE, for and in consideration of the mutual
obligations contained herein and other good and valuable
consideration, the receipt and sufficiency of which Plaintiff and
Defendant hereby acknowledge, Plaintiff and Defendant agree as
follows:

      1.    The recitations set forth above are true and correct and
form a material inducement to the parties entering into this Agreement.

      ....

      3.     At the conclusion of the Appeal (as determined by date
when the last appellate court to consider the Appeal has issued its
mandate and such mandate is no longer subject to further appeal or
review, including discretionary appellate review in Florida and/or
federal courts), if the Final Judgment is reversed on appeal and the case
is remanded for the entry of judgment in favor of any Defendant, then
that Defendant shall have no liability to Plaintiff for payment of her fees
and costs. If Plaintiff is not entitled to collect money damages
pursuant to the Final Judgment, and the Lawsuit is remanded for
a new trial, this Agreement shall be of no further force and effect
                                    3
and the parties will retain all rights and defenses each had prior to
the date of this Agreement with respect to entitlement to, and
amount of, attorney’s fees and costs.

       4.       At the conclusion of the Appeal . . . if and only if the
Final Judgment is affirmed on appeal in a form that entitles
Plaintiff to collect damages from Defendant by the court of last
resort to which an appeal or review has been taken, then, if still
liable to Plaintiff, Defendant shall pay or cause to be paid to
Plaintiff . . . ($732,000.00) in fees, plus . . . ($233,000.00) in costs, for
a total of . . . ($965,000.00) plus interest . . . . These amounts will be
due within fifteen (15) days from the date upon which the affirmance
has become no longer subject to further appeal or review, including
discretionary appellate review . . . . If payment of the Resolution Funds
with applicable interest has not been made within fifteen (15) days after
the date on which such affirmance has become no longer subject to
further appeal or review, . . . Plaintiff shall be entitled to the immediate
entry of a final judgment . . . upon the filing of a Motion and supporting
Affidavit of Plaintiff’s counsel to the effect that the Resolution Funds
have not been paid within said fifteen (15) days, against Defendant for
the Resolution Funds with interest; Defendant hereby waive[s] the right
to appeal said final judgment. As detailed below, the Resolution Funds
shall be in full and final satisfaction of any claims Plaintiff now has for
attorney’s fees and taxable costs against Defendant, arising out of the
Lawsuit that Plaintiff has incurred through the date of this agreement. .
..

       ....

       7.     Plaintiff and Defendant agree and acknowledge that this
Agreement is the result of a compromise between them regarding the
total dollar amount that Plaintiff has incurred through the date of this
Agreement sought by Plaintiff pursuant to her Motion to Tax Fees and
Costs through the date of this Agreement only, and shall not be
construed as an admission by Defendant of any liability . . . .

       8.    In consideration hereof, Plaintiff and her attorneys hereby
irrevocably release and forever discharge Defendant and all its present,
former, and/or future assigns, agents, parents . . . from and against any
and all actions . . . that Plaintiff now has or may have had, or hereafter
                                     4
      claims to have, regarding or in any way related to the payment of
      attorney’s fees and costs incurred by Plaintiff in the Lawsuit through
      the date of this Agreement. The foregoing shall not be construed as a
      release of any person or entity as to any of the obligations undertaken
      in this Agreement in connection with a breach thereof. Nor shall the
      foregoing in any way limit the Plaintiff’s right to recover attorney’s fees
      and costs if the Final Judgment is reversed and/or this action must
      be re-tried for any reason. In other words, in that event, the claims
      for fees and costs compromised by this Agreement shall remain in full
      force and effect as though this Agreement had never been executed.

            ....

            11. This Agreement may be amended only by a written
      instrument executed by the parties. . . .

             12. Neither of the parties shall be considered the drafter of this
      Agreement or of any provision hereof for the purpose of any statute,
      case law, or rule of interpretation . . . .

            13. Any inconsistency between this Agreement and the exhibit
      hereto shall be resolved in favor of this Agreement.

            ....

            17. The provisions set forth herein constitute the entire
      obligation of Defendant with respect to the payment of attorney’s fees
      and costs that Plaintiff has incurred through the date of this Agreement
      in connection with the Lawsuit (unless the Final Judgment is
      reversed and/or this action is retried for any reason) and the
      exclusive means by which Plaintiff and Plaintiff’s counsel may seek
      payment of fees and taxable costs that Plaintiff has incurred through the
      date of this agreement by Defendant in connection with attorney’s fees
      and costs that Plaintiff has incurred in this Lawsuit through the date of
      this Agreement. . . .

(Emphasis added). Following the execution of the Agreement, Appellee filed

Plaintiff’s Notice of Limited Withdrawal of Her Motion to Tax Fees and Costs with

                                          5
Prejudice. Therein, she set forth in part that the withdrawal was pursuant to the

parties’ Agreement “resolving and agreeing to a total dollar amount of fees and costs

that have been incurred to date . . . .”

      In its appeal of the 2010 Final Judgment, Appellant argued for reversal on

multiple grounds, two of which addressed the damages award. See R.J. Reynolds

Tobacco Co. v. Webb, 93 So. 3d 331, 333 (Fla. 1st DCA 2012). We found that the

amount of compensatory damages suggested an award that was the product of

passion, and because we vacated the amount of compensatory damages, we vacated

the award of punitive damages as well. Id. at 339. We did not “disturb the judgment

as to liability,” but we “reverse[d] both the compensatory and the punitive damage

awards and remand[ed] the case with directions that the trial court grant the motion

for remittitur or order a new trial on damages only.” Id. at 332, 339. The 2010 Final

Judgment was “affirm[ed] . . . in all other respects.” Id. at 339.

      On remand, the trial court entered an Order of Remittitur or, Alternatively, for

New Trial. Appellee consented to the remitted judgment, and the trial court entered

an amended final judgment in the amount of $28,600,000, which was comprised of

both compensatory and punitive damages and which Appellant appealed. In R.J.

Reynolds Tobacco Co. v. Webb, 130 So. 3d 262, 263 (Fla. 1st DCA 2013), we

agreed with Appellant that the trial court erred as a matter of law in failing to hold a

new trial on damages after Appellant objected to the remitted damages amount. We,

                                           6
therefore, reversed and remanded for the trial court to hold a “new trial on

damages.” Id. at 264. In accordance with the jury’s verdict on retrial, the trial court

entered a 2014 final judgment wherein it ordered Appellant to pay Appellee

$810,000 in compensatory damages and $450,000 in punitive damages, for a total

of $1,260,000.

      Appellee subsequently filed Plaintiff’s Motion to Tax Attorneys’ Fees and

Costs, requesting fees pursuant to the Agreement. Following a hearing during which

Appellant disputed Appellee’s entitlement to fees, the trial court entered its Final

Judgment for Resolution Funds, finding that Appellee was entitled to recover

$965,000 along with interest from Appellant.            Appellee moved to dismiss

Appellant’s appeal of the judgment on the basis that Appellant, pursuant to the

language of the Agreement, waived the right to dispute the attorney’s fee award. We

denied Appellee’s motion.

       A trial court’s interpretation of a contract is a matter of law and is subject to

de novo review on appeal. Rose v. Steigleman, 32 So. 3d 644, 645 (Fla. 1st DCA

2010). The cardinal rule of contract interpretation is that when the language of a

contract is clear and unambiguous, the contract must be interpreted and enforced in

accordance with the plain meaning. Columbia Bank v. Columbia Developers, LLC,

127 So. 3d 670, 673 (Fla. 1st DCA 2013). Where there is “‘an unambiguous

contractual provision . . ., a trial court cannot give it any other meaning beyond that

                                           7
expressed and must construe the provision in accord with its ordinary

meaning.’” Razin v. A Milestone, LLC, 67 So. 3d 391, 396 (Fla. 2d DCA 2011)

(citation omitted).

      As they did below, both parties, although offering conflicting interpretations,

argue that the Agreement is unambiguous.          Based upon our review of the

Agreement’s plain language, we conclude that Appellee is not entitled to the

attorney’s fees set forth therein. The pertinent section of Paragraph 3, which

Appellant relies upon, provides:

      If Plaintiff is not entitled to collect money damages pursuant to the
      Final Judgment, and the Lawsuit is remanded for a new trial, this
      Agreement shall be of no further force and effect and the parties will
      retain all rights and defenses each had prior to the date of this
      Agreement with respect to entitlement to, and amount of, attorney’s
      fees and costs.

There is no question that the “Final Judgment” referred to in the Agreement was the

2010 Final Judgment given the Agreement’s characterization of the November 29,

2010, judgment as the “Final Judgment.” There is also no question, as Appellant

contends, that not only was the case remanded for a new trial on damages following

the initial appeal but the $1,260,000 that Appellee was ultimately awarded after two

appeals and a second trial on damages was not awarded “pursuant to” the damages

award contained within the 2010 Final Judgment. We agree with Appellant’s

interpretation of Paragraph 3 that the Agreement was only enforceable if Appellee

was entitled to collect the money damages she was awarded in the 2010 Final
                                         8
Judgment at the conclusion of the initial appeal.           Because she was not, the

Agreement is unenforceable.

      Our interpretation of Paragraph 3 is supported by the language in Paragraph

4, which provides in part:

      At the conclusion of the Appeal . . . if and only if the Final Judgment is
      affirmed on appeal in a form that entitles Plaintiff to collect damages
      from Defendant by the court of last resort to which an appeal or review
      has been taken, then, if still liable to Plaintiff, Defendant shall pay or
      cause to be paid to Plaintiff . . . ($732,000.00) in fees, plus . . .
      ($233,000.00) in costs, for a total of . . . ($965,000.00) plus interest . . .
      . These amounts will be due within fifteen (15) days from the date upon
      which the affirmance has become no longer subject to further appeal or
      review, including discretionary appellate review . . . .

It is clear to us that the parties’ focus, as reflected in both Paragraphs 3 and 4, was

the effect the initial appeal would have on Appellee’s entitlement to collect the

money damages awarded within the 2010 Final Judgment. Contrary to Appellee’s

argument, our affirmance as to liability in the initial appeal did not entitle her to any

of the damages awarded in that judgment.

      Turning to Paragraphs 8 and 17, Paragraph 8 sets forth in part:

      The foregoing shall not be construed as a release of any person or entity
      as to any of the obligations undertaken in this Agreement in connection
      with a breach thereof. Nor shall the foregoing in any way limit the
      Plaintiff’s right to recover attorney’s fees and costs if the Final
      Judgment is reversed and/or this action must be re-tried for any reason.
      In other words, in that event, the claims for fees and costs compromised
      by this Agreement shall remain in full force and effect as though this
      Agreement had never been executed.

Paragraph 17 similarly provides in part that the Agreement’s provisions “constitute
                                            9
the entire obligation of Defendant with respect to the payment of attorney’s fees and

costs that Plaintiff has incurred through the date of this Agreement in connection

with the Lawsuit (unless the Final Judgment is reversed and/or this action is retried

for any reason) . . . .”

       Appellee’s assertion that a partial affirmance as to liability was sufficient for

her to collect fees under the Agreement conflicts not only with Paragraphs 3 and 4

but also with Paragraphs 8 and 17. In light of the language “retried for any reason,”

we disagree with Appellee’s interpretation that Paragraphs 8 and 17 contemplate a

reversal as to both liability and damages. Given the fact that the 2010 Final

Judgment was reversed as to damages and that the action was retried as to that issue

and the fact that the damages Appellee ultimately received were not awarded

pursuant to the 2010 Final Judgment, the trial court erred in ruling that Appellee was

entitled to attorney’s fees under the Agreement.

       Accordingly, the Final Judgment for Resolution Funds is REVERSED.

WINOKUR, J., CONCURS; SWANSON, J., DISSENTS WITH OPINION.




                                          10
SWANSON, J., dissenting.

      I disagree that the parties’ agreement as to attorney’s fees was unenforceable

following the appeal of the final judgment in R.J. Reynolds Tobacco Co. v. Webb,

93 So. 3d 331 (Fla. 1st DCA 2012), in which this court expressly held: “We do not

disturb the final judgment as to liability, but we vacate the damages award and

remand for further proceedings.” Id. at 333. Given that the final judgment as to

appellant’s liability was not disturbed on appeal, it was undisputed that appellee was

entitled to collect damages. The only question was the amount of those damages.

Under these circumstances, the final judgment was not reversed on appeal so as to

void appellant’s obligation to pay attorney’s fees under the parties’ agreement.

Accordingly, I would affirm the attorney’s fee award.




                                         11
