EMMETT TUCKER AND CONE BROTHERS CONTRACTING COMPANY, APPELLANTS,
v.
THE FIRESTONE TIRE AND RUBBER COMPANY AND DON OLSON'S FIRESTONE, INC., APPELLEES

Fla. 2d DCA | 1989-11-22
No. 89-00553
LEHAN, A.C.J., and PARKER, J., concur.
552 So. 2d 1178 Florida District Court of Appeal, Second District (1989) Positive Treatment
Cited by 19 cases

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Synopsis

The court reversed a trial court's dismissal of a personal injury action following the plaintiff's death because the trial court abused its discretion in refusing to consider a late motion to substitute the personal representative, where excusable neglect was shown due to difficulties in obtaining the estate's appointment.


Holding

The court held that the appellant made a sufficient showing of excusable neglect to require vacating the order of dismissal. The trial court abused its discretion in refusing to consider the substitution motion because actual difficulties in obtaining the personal representative's appointment were shown, unlike in precedent cases that upheld dismissals, and because the state's courts have a longstanding tradition favoring disposition on the merits.


Headnotes

[1] A motion for substitution of parties must be made within ninety days of the date a suggestion of death is filed, pursuant to Florida Rule of Civil Procedure 1.260(a)(1).

[2] Courts should liberally interpret Florida Rule of Civil Procedure 1.260 to permit substitution beyond the ninety-day time period when appropriate.

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Key Quotes

“The courts of this state have a longstanding tradition in favor of the disposition of an action on its merits.”

Establishes the foundational principle guiding the court's analysis that favors resolving cases substantively rather than on procedural grounds.

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Facts & Procedural History

Emmett Tucker was a plaintiff in a personal injury action against Firestone entities when he died. A suggestion of death was filed March 1, 1988. Unde…

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Opinion of the Court
PATTERSON, Judge.

PATTERSON, Judge.

This appeal arises from a final order of dismissal of a personal injury action. We reverse.

Plaintiff Emmett Tucker died during the course of his litigation against defendants Firestone Tire and Rubber Co. and Don Olson’s Firestone, Inc. A suggestion of death was filed on March 1, 1988. Pursuant to Florida Rule of Civil Procedure 1.260(a)(1), a motion for substitution of parties must be made within ninety days of the date a suggestion of death is filed. No motion was forthcoming, and on June 16 and 22, 1988, respectively, Firestone and Olson moved to dismiss the action under this rule.

On August 10, 1988, plaintiff’s counsel moved to substitute the personal representative of the estate for the decedent. The motion recited difficulties in obtaining the appointment of Tucker’s sister as personal representative.

On August 11, 1988, a hearing was held on the defendants’ motions to dismiss. The trial judge declined to consider the motion to substitute and granted the motions to dismiss without prejudice. Thereafter, Tucker’s counsel brought a motion in the nature of a motion for rehearing seeking to set aside the order of dismissal predicated on excusable neglect under Florida Rule of Civil Procedure 1.540. That motion was ultimately denied and this appeal followed.

We do not approve of the manner in which this matter was handled by trial counsel. Although a member of the Florida Bar, he practices in New Jersey. Faced with difficulties in obtaining the appointment of a personal representative, he could have sought an enlargement of the ninety-day time period or could have pursued the designation of an administrator ad litem. He did neither. He did, however, write the court two letters explaining his difficulties in probating the will, and he participated with the court and opposing counsel in a status conference where the matter was discussed. Eventually the New Jersey firm of which he was an associate retained Tampa counsel and paid to commence probate and obtain the appointment of the personal representative. This circumstance resulted from the inability of Tucker’s sister to bear the costs, the estate having no assets other than his lawsuit.

In dismissing the action, the trial court relied on two cases. Canter v. Hyman, 363 So. 2d 29 (Fla. 3d DCA 1978) and King v. Tyree’s of Tampa, Inc., 315 So. 2d 538 (Fla. 2d DCA 1975). In upholding dismissal, both of these cases rely in part on the fact that no difficulty was shown in obtaining the appointment of a personal representative. That is not the case here. Furthermore, King acknowledges that relief is appropriate under Florida Rule of Civil Procedure 1.540(b)(1) when there has in fact been excusable neglect. In a case factually 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 (Fla. 4th DCA 1985). The purpose of a default judgment is to speed the litigation to conclusion and to prevent a dilatory defendant from impeding the plaintiff’s claim. Nonetheless, all doubt should be resolved in favor of allowing trial upon the merits. Jackson v. Jackson, 542 So. 2d 481 (Fla. 2d DCA 1989). In that the statute of limitations barred the re-filing of Tucker’s action, his circumstance is akin to having suffered a default. We find no reason to apply a stricter standard to vacating dismissals pursuant to Florida Rules of Civil Procedure 1.260 than that which is applied in the ease of defaults. See Stroh v. Dudley, 476 So. 2d 230 (Fla. 4th DCA 1985).

We hold, therefore, that appellant has made a sufficient showing of excusable neglect so as to require the vacating of the order of dismissal.

Reversed and remanded.

LEHAN, A.C.J., and PARKER, J., concur.


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Citator

Cited By

  • Camilo Vera v. Chamberland Adeland, 881 So. 2d 707 (Fla. 3d DCA 2004)
    …estate was established in Canada. In view of the confusion 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.…
  • …ty-day requirement might be unwarranted where decedent's counsel establishes difficulty in probating the will and appointing a personal representative so as to constitute excusable neglect under rule 1.540. See Tucker v. Firestone Tire & Rubber Co., 552 So. 2d 1178, 1179 (Fla. 2d DCA 1989).…
  • Mims v. Am. Senior Living OF Dade City, 36 So. 3d 935 (Fla. 2d DCA 2010)
    …use the statute of limitations had expired, and this appeal ensued. Rule 1.260(a)(1) has been liberally interpreted to permit a substitution of parties beyond the ninety-day period set forth in the rule. See Tucker v. Firestone Tire and Rubber Co., 552 So. 2d 1178, 1179 (Fla. 2d DCA 1989). Furthermore, “[t]he courts of this state have a long-standing tradition in favor of the disposition of an action on its merits.” Id. Here, as in Tucker, excusable neglect has been demonstrated and this action should proceed…

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