PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Substitution Upon Death – Who, What, When, Where, And How.

Fla. R. Civ. P. 1.260 sets forth the procedure to follow when a party dies during the course of litigation. Pursuant to the Rule, upon the death of one of the litigants, a suggestion of death must be timely filed in the pending case; otherwise, the action may be dismissed as to the deceased party. The Rule only specifies who should file the motion for substitution. The Rule does not specify who should file the suggestion of death. Rule 1.260(a)(1) reads in relevant part:

If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party…. Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.

In Feller v. R.J. Reynolds Tobacco Co., 2018 Fla. App. LEXIS 2160; 2018 WL 844125 (Fla. 3rd DCA 2/14/18), Mr. Feller filed a lawsuit against the tobacco companies. On 4/30/15, while the case was pending, Mr. Feller died, and his counsel notified the tobacco companies of the death. On 4/5/16, almost a year following Mr. Feller’s death, the trial court issued a notice of lack of prosecution and set a hearing. In response, on 4/8/16, Mr. Feller’s counsel filed a Notice of Record Activity which stated, in part, that Mr. Feller passed away on 4/30/15. The trial court concluded that Mr. Feller’s Notice of Record Activity constitutes a suggestion of death upon the record because it contained a “statement of the fact of the death” of Mr. Feller thereby triggering the ninety-day period set forth in rule 1.260(a)(1). The trial court ordered that Mr. Feller’s case remain pending.

On 4/15/16, Mr. Feller’s wife, as the proposed PR of Mr. Feller’s estate, filed her initial motion to substitute a party, to change the style of the case, and to amend the complaint. At the 5/9/16 hearing on the initial motion for substitution, the parties acknowledged that Mr. Feller’s widow had not yet been appointed as PR. The trial court ruled that, because Mr. Feller’s wife had not yet been appointed, the initial motion for substitution was “futile,” and therefore, it denied the motion without prejudice.

On 8/11/16, the administrator ad litem for Mr. Feller’s estate filed a second motion for substitution. The tobacco companies opposed the second motion for substitution, arguing that the ninety-day period set forth in rule 1.260(a)(1) was triggered on 4/8/16, when Mr. Feller’s counsel filed the notice of record activity which included “a statement of the fact” of Mr. Feller’s death. Thus, the tobacco companies argued that because the second motion for substitution, which was filed on 8/11/16, was not filed within ninety days of the notice of record activity, Mr. Feller’s case should be dismissed as no excusable neglect can be shown for failing to file a timely motion for substitution. Mr. Feller’s counsel contended that the notice of record activity did not constitute a suggestion of death upon the record, and therefore, the ninety-day period set forth in rule 1.260(a)(1) had not been triggered. Following a hearing, the trial court dismissed Mr. Feller’s action with prejudice pursuant to rule 1.260 and denied as moot the second motion for substitution. Mr. Feller’s appeal followed. There were two issues on appeal: (1) whether the ninety-day period set forth in rule 1.260(a)(1) was triggered; and (2), whether the ninety-day period was extinguished by the filing of the initial motion for substitution.

(1) Was the ninety-day period triggered? The court found that the initial motion for substitution clearly qualifies as a suggestion of death upon the record and thereby triggered the ninety-day period because it was specifically filed pursuant to rule 1.260(a)(1) and states that Mr. Feller had died on 4/30/15 and as a result, Mr. Feller’s wife was seeking to be appointed as PR of his estate and to be substituted as the plaintiff in the lawsuit against the tobacco companies. The court reject Mr. Feller’s counsel’s argument that the motion for substitution did not trigger the ninety-day period because it was not formally styled as a “suggestion of death” because the rule does not spell out any specific requirements for the content of the suggestion of death. All that is required is that the notice contain sufficient information necessary for any other party to move for substitution.

(2) Was the ninety-day period extinguished by the filing of the initial motion for substitution? The court found that there is no dispute that Mr. Feller’s counsel timely filed a motion for substitution. The tobacco companies, however, argue that, because the motion for substitution sought to substitute Mr. Feller’s wife and she had not been appointed as the PR of the estate and was not subsequently appointed, Mr. Feller’s wife was not a “proper party,” and therefore, the initial motion for substitution filed within the ninety-day period did not satisfy the requirements of rule 1.260(a)(1), thus requiring dismissal of Mr. Feller’s lawsuit against the tobacco companies.

The court determined that the rule does not require that the motion for substitution be made by the “proper party” to be substituted in order to satisfy the requirement that a motion for substitution. Rather, it only requires that a motion for substitution be “made” within ninety days by any party or by the successors or representatives of the deceased party. The court concluded that because the initial motion for substitution in the instant case was “made” within ninety days after the death of Mr. Feller was suggested upon the record, the ninety-day expiration period was “extinguished.” Thus, dismissal of the action was no longer appropriate under rule 1.260(a)(1).

Ruling: Based on the above analysis, the court conclude that: (1) Mr. Feller’s death was suggested upon the record, thus triggering the ninety-day period set forth in rule 1.260(a)(1), and (2) because the initial motion for substitution was “made” within ninety days after Mr. Feller’s death was suggested upon the record, the ninety-day expiration period was extinguished. Thus, as a matter of law, the trial court erred by granting the tobacco companies’ motion to dismiss because dismissal was no longer an option under rule 1.260(a)(1).