          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                          No. 1D16-2651
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IN RE 73 ENGLE-RELATED CASES.
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On appeal from the Circuit Court for Duval County.
Russell L. Healey, Judge.

                         February 8, 2018


OSTERHAUS, J.

     Plaintiffs’ counsel in this case filed seventy-three Engle,
personal injury lawsuits on behalf of dead persons just before the
statute of limitations expired in January 2008. Most of the named
plaintiffs had been dead for many years, some for only months, but
none were alive when counsel filed lawsuits in their names. Once
the defendant tobacco companies discovered in 2015 that the
plaintiffs had been dead from the start of the cases, they moved to
dismiss them. This came on the heels of a federal district court
decision dismissing hundreds of similar Engle cases brought by
plaintiffs’ counsel on behalf of dead persons in federal court.
Similarly, here, the trial court dismissed the cases and in doing so
denied plaintiffs’ counsel’s request for leave to amend the
complaints and substitute new party plaintiffs into the actions.
Plaintiffs’ counsel appealed these decisions. We affirm.

                                 I.

     Almost ten years ago in Engle, the Florida Supreme Court
decertified a class action lawsuit against tobacco companies and
required class members to file individual lawsuits within one year
in order to receive the benefit of certain Engle findings. Engle v.
Liggett Grp., Inc., 945 So. 2d 1246, 1254 (Fla. 2006). The statute of
limitations established by the court expired in January 2008.
Before that date, attorneys from The Wilner Firm and Farah &
Farah, P.A., (hereinafter “plaintiffs’ counsel”) filed many Engle-
derivative lawsuits. These included the seventy-three lawsuits at
issue in this case, which were filed in the Circuit Court for Duval
County on behalf of persons who were already deceased. These
complaints falsely alleged that the plaintiffs were living smokers
whose personal injuries were “permanent and continuing, and . . .
[would] be suffered into the future.” The pleadings didn’t
acknowledge that the named plaintiffs were already dead, nor did
they allege alternative wrongful death or survival claims.
Apparently, plaintiffs’ counsel wasn’t aware that their clients were
already dead.

     Because huge numbers of Engle cases were filed in the trial
court before the Engle deadline, the court abated many of them.
Nothing much occurred in the seventy-three cases at issue here for
many years. But in 2015, after a federal court in Jacksonville
dismissed hundreds of Engle cases after discovering that they were
filed by plaintiffs’ counsel on behalf of dead persons in federal court
(and was subsequently affirmed by the Eleventh Circuit), In re
Engle Cases, No. 3:09-cv-10000-J-32JBT, 2013 WL 8115442 (M.D.
Fla. Jan. 22, 2013), aff’d, 767 F.3d 1082 (11th Cir. 2014), the trial
court below issued a questionnaire designed to identify whether
plaintiffs’ counsel had filed viable Engle actions. Answers
submitted to the questionnaires indicated that seventy-three of the
cases filed by plaintiffs’ counsel weren’t viable. Just as in the
federal actions, plaintiffs’ counsel had filed lawsuits on behalf of
persons who were already dead. Most of these “plaintiffs” had been
dead for more than a decade, since as far back as 1986. Months
passed after plaintiffs’ counsel answered the court’s questionnaire,
during which plaintiffs’ counsel did not seek to replead the cases
or correct their allegations. In November 2015, the defendants
moved to dismiss the cases. In their motion, the defendants argued
that the personal injury actions filed in the name of dead
individuals were void and legal nullities “that confer[red] no
jurisdiction on any court and cannot be ‘cured’—especially long
after the expiration of the applicable limitations period—by
motions to substitute or amend.” Plaintiffs’ counsel responded to
the motion in January 2016 by seeking leave to amend the
pleadings to substitute the survivors and estates related to the

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named plaintiffs, “if any,” and to convert the cases to wrongful
death actions. But the trial court denied plaintiffs’ counsel’s
request and dismissed the cases with prejudice. Like the federal
district court, the trial court considered the plaintiff-less
complaints to be legal nullities and providing no basis for new
pleadings to “relate back” for purposes of satisfying Engle’s 2008
filing deadline. It also concluded that allowing more time for
plaintiffs’ counsel to seek out valid plaintiffs and amend the
complaints now, some eight years after they were first filed, would
be unfairly prejudicial to the defendants.

                                 II.

     We review the trial court’s decision to dismiss the complaints
de novo, see Capone v. Philip Morris USA, Inc., 116 So. 3d 363, 373
(Fla. 2013), and its denial of plaintiffs’ counsel’s request to amend
the seventy-three complaints for abuse of discretion. Intego
Software, LLC v. Concept Dev., Inc., 198 So. 3d 887, 892 (Fla. 1st
DCA 2016).

     We find no error in the trial court’s decision to dismiss the
personal injury lawsuits filed by plaintiffs’ counsel on behalf of
dead plaintiffs. The lawsuits filed here were nullities because a
dead person cannot file and maintain a lawsuit. It is a basic legal
truth that “unless an in rem proceeding is before the court, a cause
of action must be conducted by or opposed by a ‘person’ recognized
under the laws of this state.” Cocoa Acad. for Aerospace Tech. v.
Sch. Bd. of Brevard Cty., Fla., 706 So. 2d 397, 398 (Fla. 5th DCA
1998). Dead persons aren’t qualified to conduct a suit. Xtra Super
Food Ctr. v. Carmona, 516 So. 2d 300, 301 (Fla. 1st DCA 1987)
(“[D]eceased persons cannot be parties to a judicial or quasi-
judicial proceeding.”); see also In re Engle Cases, 767 F.3d 1082,
1086-87 (11th Cir. 2014) (“As any lawyer worth his salt knows, a
dead person cannot maintain a personal injury claim.”); DeArmas
v. Blonstein, 356 So. 2d 1339, 1340 (Fla. 3d DCA 1978) (affirming
the dismissal of a personal injury claim where the plaintiff died
before the lawsuit was filed).

     Corresponding to this legal rule, plaintiffs’ counsel had no
authority to file and maintain these cases on behalf of the dead
plaintiffs. “The death of [the] client terminates the relationship
between the attorney and client and the attorney’s authority to act
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by virtue thereof is extinguished.” Rogers v. Concrete Scis., Inc.,
394 So. 2d 212, 213 (Fla. 1st DCA 1981); BEC Constr. Corp. v.
Gonzalez, 383 So. 2d 1093, 1094 (Fla. 1st DCA 1980) (same); see
also Schaeffler v. Deych, 38 So. 3d 796, 801 (Fla. 4th DCA 2010)
(“The death of a party limits the authority of counsel to proceed in
the underlying action.”); Brickell v. McCaskill, 106 So. 470, 472
(Fla. 1925) (recognizing that the attorney-client relationship
“terminated at [the client’s] death”). Thus, the complaints filed by
plaintiffs’ counsel in these cases failed to confer jurisdiction on the
trial court and were legal nullities from the start. BEC Constr., 383
So. 2d at 1094 (“No proper claim ever having been filed, . . . [the
court] had no jurisdiction.”).

     It would be a different case if plaintiffs’ counsel, instead of
naming dead persons as plaintiffs to personal injury actions, had
merely misnamed personal representatives within a wrongful
death complaint. That’s what happened in Estate of Eisen v. Philip
Morris USA, Inc., 126 So. 3d 323 (Fla. 3d DCA 2013). The Third
District in Eisen allowed amendment of a wrongful death
complaint that named an invalid personal representative of an
estate as the plaintiff. Id. at 336. Eisen concluded that the estate
“remained at all times the real party in interest,” and that the
personal representative was simply a “nominal plaintiff[].” Id. at
329-30. The court permitted the substitution of a proper nominal
plaintiff in place of a nominal plaintiff who lacked a proper
capacity to sue. Id. at 336; accord Esposito v. United States, 368
F.3d 1271 (10th Cir. 2004) (allowing amendment where the
complaint erroneously named the decedent, instead of his heirs, in
the caption of a wrongful death action). In contrast, the seventy-
three cases here do not involve misidentifying or replacing nominal
plaintiffs, or other simple party-identification errors within a
wrongful death complaint. Indeed, the complaints here featured no
estates, survivors, personal representatives, or other nominal
plaintiffs. Rather, the complaints stated personal injury claims
supposedly filed by the living plaintiffs themselves and claiming
ongoing harms at the hands of the tobacco company defendants.
Eisen’s approval of amending wrongful death complaints in certain
situations doesn’t control the outcome here.

     A different outcome below might also have been required if
the plaintiffs had died after the complaints were filed. See Capone

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v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013); Roden v.
R.J. Reynolds Tobacco Co., 145 So. 3d 183 (Fla. 4th DCA 2014). In
Capone, the original plaintiff filed a personal injury action in 2005,
but then died in 2006. 116 So. 3d at 365. The original plaintiff’s
personal representative moved to amend the complaint, substitute
herself as party plaintiff, and convert the action into a wrongful
death claim. The trial and appeals courts did not permit the
substitution and conversion of the case. But the Florida Supreme
Court held that the personal representative could substitute
herself as a party to the case and convert it into a wrongful death
action. Id. at 377. The opinion said:

    [U]pon the death of a party plaintiff in a personal injury
    action, the personal representative of the decedent’s
    estate may be added to the pending action as a party and,
    thereafter, shall have a reasonable opportunity to file an
    amended pleading that alleges new or amended claims
    and causes of action.

Id. at 377-78; accord Roden, 145 So. 3d at 185 (allowing a personal
representative a reasonable opportunity to amend complaint to
add a wrongful death claim when the original plaintiff died after
filing the lawsuit). We recognize that when personal injury
plaintiffs die, the personal representatives of their estates should
receive “a reasonable opportunity to amend the complaint to state
the damages sought under a wrongful death claim.” 116 So. 3d at
377. The rules of civil procedure reflect this same policy
presumption. See Torrey v. Leesburg Reg’l Med. Ctr., 769 So. 2d
1040, 1045-46 (Fla. 2000) (recognizing Florida’s “liberal rules
regarding the amendment of pleadings” and long-standing policy
of allowing “cases to be decided on the merits whenever possible”).
Florida Rule of Civil Procedure 1.190(a) allows “a party” to amend
a pleading upon leave of court and Florida Rule of Civil Procedure
1.260(a)(1) allows courts to order substitution of parties if “a party
dies and the claim is not thereby extinguished.” Further, “[a]t any
time in furtherance of justice, upon such terms as may be just, the
court may permit any . . . pleading . . . to be amended.” Fla. R. Civ.
P. 1.190(e). The rules also provide for amended pleading to relate
back to the date of the original pleading for statute of limitations
purposes “[w]hen the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or occurrence set

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forth or attempted to be set forth in the original pleading.” Fla. R.
Civ. P. 1.190(c).

     But this case differs from Capone and Roden because no valid,
living plaintiffs were ever parties to the actions here. Underlying
Florida’s preference for deciding “cases” on the merits whenever
possible is the existence of a valid case. Here, the cases weren’t
ever valid. Plaintiffs’ counsel filed unconfirmed claims in 2007 and
2008 on behalf of dead persons, then waited eight years to backfill
the case with legitimate plaintiffs and claims for the very first
time. Florida’s preference for deciding cases on the merits says
nothing of requiring courts to perpetuate hollow, uninvestigated
lawsuits filed by counsel on behalf of dead people. The trial court
wasn’t required to grant leave to amend complaints under these
circumstances where the trial court lacked jurisdiction from the
start. See BEC Constr., 383 So. 2d at 1094.

     Nor does justice demand a different result. See Fla. R. Civ. P.
1.190(e). Before filing suit, plaintiffs’ counsel had ethical
obligations to confirm the allegations it made and to receive
authorization from clients to file the cases. The Florida Supreme
Court gave plaintiffs’ counsel the same time and opportunity as
other counsel to investigate their clients’ claims, to find survivors
if necessary, and to join relevant estates and personal
representatives to lawsuits as needed during the year allotted to
file Engle-progeny lawsuits. But plaintiffs’ counsel didn’t verify
their claims before filing them. Instead, they alleged patently false
things, such as that the plaintiffs’ injuries and losses were
“continuing [and would] be suffered into the future.” Then, once
the cases were filed, they let the cases sit on the court’s docket for
almost eight years, still without checking with their “clients” or
their estates to verify the allegations and amend them if
necessary. 1 Plaintiffs’ counsel ultimately left it to the court to flush
out the truth about their supposed clients and their non-viable
claims. And even then, once plaintiffs’ counsel had disclosed to the


     1 There isn’t record evidence here of survivors, estates, or
personal representatives coming forward to plaintiffs’ counsel to
disclose the deaths of party plaintiffs, or to press the lawsuits
forward themselves.

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court that the “plaintiffs” had been dead since before the case was
filed, plaintiffs’ counsel did not proactively correct their
allegations. They waited instead for the defendants to seek
dismissal. Under these circumstances, it is easy to conclude that
allowing plaintiffs’ counsel to amend their pleadings would be an
abuse of the privilege to amend and prejudicial to the defendants.
See Bill Williams Air Conditioning & Heating, Inc. v. Haymarket
Coop. Bank, 592 So. 2d 302, 305 (Fla. 1st DCA 1991) (describing
circumstances where the privilege to amend should be denied).
State legal policy didn’t require the court to breathe first-life into
these cases in 2016. And dismissal under these circumstances
actually “further[ed] justice.” Fla. R. Civ. P. 1.190(e). 2 We therefore
cannot conclude that the trial court abused its discretion by
dismissing these never-valid complaints with prejudice some eight
years after the expiration of the statute of limitations.

                                  III.

     For these reasons, we find no error in the court’s decision
dismissing the seventy-three personal injury cases filed by
plaintiffs’ counsel on behalf of deceased plaintiffs and denying
leave for plaintiffs’ counsel to amend the complaints and substitute
new party plaintiffs.

    AFFIRMED.

ROBERTS and M.K. THOMAS, JJ., concur.




    2 Four federal district judges recently signed a 148-page order
penalizing plaintiffs’ counsel for similar Engle litigation conduct to
the tune of a $9 million sanction. See In re Engle Cases, 3:09-cv-
10000-J-WGY-JBT, 2017 WL 4675652, at *2 (M.D. Fla. Oct. 18,
2017) (sanctioning counsel “to account for the immense waste of
judicial resources and contempt shown for the judicial process
occasioned by maintaining over a thousand non-viable claims”).

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                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Norwood S. Wilner and Richard J. Lantinberg of The Wilner Firm,
Jacksonville; Charles Farah and Eddie Farah of Farah & Farah,
P.A., Jacksonville; and Michael Jaffe of Wolf Haldenstein Adler
Freeman & Herz LLP, New York, for Appellants.

Geoffrey J. Michael and Daphne O'Connor of Arnold & Porter Kaye
Scholer LLP, Washington, D.C., for Appellee Philip Morris USA
Inc.; Charles R.A. Morse of Jones Day, New York, for Appellee R.J.
Reynolds Tobacco Company.




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