MILTON F. STEINHARDT, PETITIONER,
v.
INTERCONDOMINIUM GROUP, INC., A FLORIDA NON-PROFIT CORPORATION, PALM BEACH WHITE HOUSE ASSOCIATION, INC., A FLORIDA NON-PROFIT CORPORATION, AND PALM BEACH WHITE HOUSE ASSOCIATION NO. 3, INC., A FLORIDA NON-PROFIT CORPORATION, RESPONDENTS
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A Florida appellate court reversed a trial court's denial of a motion to dismiss a counterclaim filed against a deceased plaintiff, holding that claims of excusable neglect for failure to move for substitution within ninety days must be proven by sworn evidence, not mere counsel assertions.
Excusable neglect to avoid dismissal under Rule 1.260(a)(1) must be proven by sworn statements or affidavits; unsworn assertions and arguments by counsel are insufficient as evidence. The trial court must conduct an evidentiary hearing to determine whether excusable neglect exists.
[1] A motion for substitution of a deceased party must be made within ninety days after death is suggested on the record, or the claim will be dismissed.
[2] Allegations of excusable neglect require proof by sworn statements or affidavits, not mere representations of counsel.
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Join FLexlaw to unlock all legal intelligence“Excusable neglect must be proven by sworn statements or affidavits. Un-sworn assertions of excusable neglect are insufficient.”
Establishes the evidentiary standard required to prove excusable neglect; unsworn counsel representations are insufficient
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Join FLexlaw to unlock all legal intelligenceA counterclaim was filed against a plaintiff who subsequently died. Counsel for the deceased plaintiff's estate moved to dismiss the counterclaim unde…
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PER CURIAM.
Counsel for a deceased plaintiff (who also represents those who succeeded to the decedent’s interest in the property that is the subject of the litigation below) seeks certiorari review of a non-final order denying his motion to dismiss the counterclaim filed against the decedent prior to his death, based on Florida Rule of Civil Procedure 1.260(a)(1), which requires the dismissal of a claim when a motion for substitution is not made within ninety days after death is suggested on the record. We have jurisdiction, see Nationwide Mwt. 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), and grant certiorari relief.
Following two non-evidentiary hearings, the trial court denied the motion to dismiss on a finding that the counterclaimants’ delay in moving for substitution was the result of excusable neglect, over counsel’s arguments that the counterclaimants were required to submit evidence, not mere representations of counsel, to show excusable neglect. The court also denied counsel’s request for an evidentiary hearing on the motion.
In DiSarrio v. Mills, 711 So. 2d 1355 (Fla. 2d DCA 1998), the court reversed an order finding excusable neglect and reinstated a dismissal, explaining as follows:
Excusable neglect must be proven by sworn statements or affidavits. Un-sworn assertions of excusable neglect are insufficient. The Mills, having correctly sought relief under rule 1.540, must comply with its mandates.
Counsel for the Mills neither offered a verified motion nor testified under oath. Allegations of excusable neglect require more than mere legal conclusions. Argument by counsel who is not under oath is not evidence. Thus, the failure to verify the claim of excuse is fatal.
Id. at 1356-57 (citations omitted).
Although in this case there was no dismissal, the finding of excusable neglect having prevented that result, we conclude that facts establishing the excusable neglect necessary to avoid dismissal also had to be proven, where they were not stipulated to by the opposing side. Accordingly, we quash the order denying the motion to dismiss and direct the trial court on remand to conduct an evidentiary hearing to determine whether the counterclaim-ants’ delay in moving to substitute was the result of excusable neglect.
DELL, FARMER and GROSS, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Carter v. Lake Cnty., 840 So. 2d 1153 (Fla. 5th DCA 2003)…law decided under rule 1.540 when deciding whether excusable neglect has been shown under the provisions of other rules. See, e.g., Oglesby-Dorminey v. Lucy Ho’s Rest., 815 So. 2d 749 (Fla. 1st DCA 2002); Steinhardt v. Intercondominium Group, Inc., 771 So. 2d 614 (Fla. 4th DCA 2000); Spencer v. Barrow, 752 So. 2d 135 (Fla. 2d DCA 2000); see also Kendall Country Estate, Inc. v. Pierson, 826 So. 2d 1002 (Fla. 3d DCA 2001); Hernandez v. Page, 580 So. 2d 793 (Fla. 3d DCA 1991). We find support for our decision…
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Jennifer Denise Halpern, M.D. v. Houser, 949 So. 2d 1155 (Fla. 4th DCA 2007)…rthermore, “Excusable neglect must be proven by sworn statements or affidavits. Unsworn assertions of excusable neglect are insufficient.” Geer v. Jacobsen, 880 So. 2d 717, 720 (Fla. 2d DCA 2004); see also Steinhardt v. Intercondominium Group, Inc., 771 So. 2d 614, 614 (Fla. 4th DCA 2000). In Steinhardt, following two non-evidentiary hearings, the trial court denied a motion to dismiss a counterclaim finding that the counterclaim-ants’ delay in moving for substitution was the result of excusable neglect. 771…
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Olympus Ins. Co. v. Maikel Hernandez, 171 So. 3d 831 (Fla. 4th DCA 2015)…trial court departed from the essential requirements of law when it granted the motion for substitution of party and denied the motion to dismiss based upon counsel’s unsworn assertions of excusable neglect. Steinhardt v. Intercondominium Grp. Inc., 771 So. 2d 614, 614 (Fla. 4th DCA 2000). The petition for writ of cer-tiorari is granted, and the trial court’s February 19, 2015 order is quashed. On remand, the trial court is directed to conduct an evidentiary hearing to determine whether the untimely filing of…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- DiSARRIO v. Mills, 711 So. 2d 1355 (Fla. 2d DCA 1998)
- 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)