Capone v. Philip Morris USA

Frank and Karen Capone (plaintiffs) filed a tort action against tobacco-manufacturer Philip Morris USA (PMUS) (defendant), alleging Frank was harmed by PMUS’s products. After Frank died, Karen filed a motion to substitute herself as the sole plaintiff and to amend the complaint to add additional claims (the amend-and-substitute motion). PMUS moved to dismiss. On September 16, 2008, the trial court denied Karen’s amend-and-substitute motion and dismissed the entire action. Karen filed a motion-for-rehearing (the first motion-for-rehearing) along with an affidavit-of-service affirming that she had served the motion on PMUS via US Mail on September 24, 2008. At a hearing on Karen’s motion-for-rehearing, PMUS argued that Karen’s motion was untimely because the envelope in which PMUS received the motion was postmarked September 29, 2008, more than 10 days after entry of the September 16 dismissal order. On May 8, 2009, the trial court ruled for Karen and vacated the September 16 dismissal order, effectively reviving Karen’s action. PMUS moved to vacate the May 2009 order, reiterating its argument that the September 2008 dismissal order should have been upheld because Karen’s motion-for-rehearing was untimely. On September 2, 2009, a different trial judge granted PMUS motion, vacated the May 2009 order, and dismissed Karen’s action. On September 8, 2009, Karen filed a motion-for-rehearing challenging the September 2009 dismissal order (the second motion-for-rehearing). On November 9, 2009, the trial court denied Karen’s second motion-for-rehearing. On December 4, Karen filed a notice-of-appeal seeking review of the September 2009 dismissal order. PMUS challenged, arguing that Karen’s notice-of-appeal was untimely. The appellate court (1) held that it had jurisdiction because Karen’s second motion-for-rehearing tolled the notice-of-appeal filing deadline; but (2) affirmed the dismissal order, holding that the postmark proved that Karen’s first motion-for-rehearing was untimely. Karen appealed.