JEFFREY PEARL, APPELLANT,
v.
ELIZABETH KELLY, APPELLEE
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Pearl appeals the dismissal of his action against Kelly's estate for failure to substitute parties within 90 days of Kelly's death. The court reverses, holding that excusable neglect exists where the defendant's own conduct led the plaintiff to believe compliance with the 90-day rule was unnecessary.
Although Rule 1.260(a)(1) uses mandatory language, it has been interpreted liberally to permit substitution after 90 days upon a showing of excusable neglect, inadvertence, mistake, or fraud. Here, excusable neglect exists because Kelly's own conduct lulled Pearl into believing compliance with the 90-day rule was unnecessary.
[1] A court may permit substitution of parties after the 90-day period following a suggestion of death upon a showing of excusable neglect, inadvertence, mistake, or fraud.
[2] A party may seek an enlargement of time to procure proper substitution of parties if unable to do so within the initial 90-day period.
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Join FLexlaw to unlock all legal intelligence“While the language of Rule 1.260 is mandatory, Nationwide Mutual Fire Insurance Co. v. Holmes, 352 So.2d 1233 (Fla. 4th DCA 1977), the statute has been interpreted liberally to allow substitution of a party after 90 days of the suggestion of death upon a showing of excusable neglect, inadvertence, mistake, fraud, etc.”
Establishes that despite mandatory language, courts interpret the rule liberally to permit late substitution for good cause.
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Join FLexlaw to unlock all legal intelligenceElizabeth Kelly died while the action against her was pending. Pearl received notice of Kelly's death and contacted Kelly's counsel multiple times reg…
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HENDRY, Judge.
Jeffrey Pearl appeals from an order dismissing his action against appellee, pursuant to Rule 1.260(a)(1), Florida Rules of Civil Procedure,1 for failure to file a notice of substitution of parties within 90 days after death was suggested upon the record. We reverse.
Appellant admits that he received notice of the death of Elizabeth Kelly. He asserts, however, without contradiction, that he contacted counsel for appellee on numerous occasions with regard to the substitution of parties after the death and was told each time that no personal representative had been appointed. Appellant also asserts, again without contradiction, that he was to be notified as soon as a personal representative was appointed so that a substitution of parties could be effected. Instead, appellee moved to dismiss the cause of action as soon as the 90 day period elapsed.
While the language of Rule 1.260 is mandatory, Nationwide Mutual Fire Insurance Co. v. Holmes, 352 So. 2d 1233 (Fla. 4th DCA 1977), the statute has been interpreted liberally to allow substitution of a party after 90 days of the suggestion of death upon a showing of excusable neglect, inadvertence, mistake, fraud, etc. pursuant to Rule 1.540(b)(1), Florida Rules of Civil Procedure. Provident Life & Accident Insurance Co. v. Lebo, 355 So. 2d 195 (Fla. 3d DCA 1978); Nationwide Insurance v. Holmes, supra; New Hampshire Insurance Co. v. Kimbrell, 343 So. 2d 107 (Fla. 1st DCA 1977).
A party may move also for an enlargement of time pursuant to Rule 1.090(b), Florida Rules of Civil Procedure, in order to procure proper substitution of parties if it has not been able to do so within the 90 days. Wilson v. Clark, 414 So. 2d 526 (Fla. 1st DCA 1982); Nationwide Insurance v. Holmes, supra. Appellee’s reliance on Canter v. Hyman, 363 So. 2d 29 (Fla. 3d DCA 1978), cert. denied, 368 So. 2d 1368 (Fla.1979), is misplaced since in that case the motion for substitution of parties was filed almost two years after the suggestion of death, and there was no motion for an extension of time within which to file the substitution nor was there a showing of any difficulty that might have delayed filing the motion for substitution of parties. In the instant case it was appel-lee’s own conduct which lulled appellant into believing that compliance with the 90 day rule was not required. In this case we must agree with the appellant that there was excusable neglect and therefore we reverse the order dismissing the cause of action, with directions to permit substitution of the deceased party and proceed to trial. Bono v. Dubree, 350 So. 2d 26 (Fla. 4th DCA 1977).
Reversed and remanded.
. The rule states in relevant part:
If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties ... 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, (e.s.)
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Scutieri v. Miller, 584 So. 2d 15 (Fla. 3d DCA 1991)…suggestion of death and simultaneously withhold the information necessary for plaintiff to move for substitution. Additionally, it should be noted that the 90-day time period of Rule I.260(a) may be extended for good cause shown. See Pearl v. Kelly, 442 So. 2d 1012, 1013 (Fla. 3d DCA 1983), review denied, 451 So. 2d 849 (Fla.1984); Fla.R.Civ.P. 1.090(b); 7C C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil 2d § 1955, at 546 (1986). The order under review is reversed and the cause remanded wi…
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Camilo Vera v. Chamberland Adeland, 881 So. 2d 707 (Fla. 3d DCA 2004)…n on this issue, we conclude that excusable neglect was shown by the plaintiff and an extension of time for substitution should have been granted. See Tucker v. Firestone Tire and Rubber Co., 552 So. 2d 1178, 1179 (Fla. 2d DCA 1989); Pearl v. Kelly, 442 So. 2d 1012, 1013 (Fla. 3d DCA 1983). Reversed and remanded for further proceedings consistent herewith.…
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Emmett Tucker & Cone Bros. Contracting Co. v. The Firestone Tire & Rubber Co. & Don Olson's Firestone, Inc., 552 So. 2d 1178 (Fla. 2d DCA 1989)…tually similar to this ease, the Third District declined to apply its holding in Canter and noted that Florida Rule of Civil Procedure 1.260 has been liberally interpreted to permit substitution beyond the ninety-day time period. See Pearl v. Kelly, 442 So. 2d 1012 (Fla. 3d DCA 1983). The courts of this state have a longstanding tradition in favor of the disposition of an action on its merits. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Somero v. Hendry General Hospital, 467 So. 2d 1103 (…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wilson v. Clark, 414 So. 2d 526 (Fla. 1st DCA 1982)
- Nationwide Mut. Fire Ins. Co. v. Holmes, 352 So. 2d 1233 (Fla. 4th DCA 1977)
- NEW Hampshire Ins. Co. v. Kimbrell, 343 So. 2d 107 (Fla. 1st DCA 1977)
- Goldie Canter v. Jule Hyman, 363 So. 2d 29 (Fla. 3d DCA 1978)
- Provident Life & Accident Ins. Co. v. Lebo, 355 So. 2d 195 (Fla. 3d DCA 1978)
- Augusten Bono and Dorothy Bono v. Dubree, 350 So. 2d 26 (Fla. 4th DCA 1977)