PBCBA BAR BULLETINS pbcba_bulletin_may 2018 | Page 17

PROBATE C o r n e r
Substitution Upon Death -
Who, What, When, Where, And How.
DAVID M. GARTEN
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
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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 notic e 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).