CAMILO VERA, APPELLANT,
v.
CHAMBERLAND ADELAND, APPELLEE
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Plaintiff Vera appealed the dismissal of his negligence complaint against deceased defendant Adeland for failure to timely substitute parties after the defendant's death. The court reversed, holding that a bare-bones suggestion of death was legally sufficient to trigger the 90-day substitution period under Florida Rule of Civil Procedure 1.260, and that plaintiff was entitled to an extension of time based on excusable neglect arising from confusion about whether an estate had been opened.
The court held that a suggestion of death need not contain specific details about the date, location, or estate status to be sufficient under Rule 1.260(a)(1); a bare statement that the defendant died is legally sufficient to start the 90-day period. The court also held that under Rule 1.090, the plaintiff was entitled to an extension of time because excusable neglect was shown due to confusion and inconsistency regarding whether an estate had been opened.
[1] A motion for substitution of parties under Florida Rule of Civil Procedure 1.260(a)(1) is timely if made within ninety days of the suggestion of death, and does not requi…
[2] Under Florida Rule of Civil Procedure 1.260(a)(1), the motion for substitution of a deceased party may be made by any party or by the successors or representatives of the…
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Join FLexlaw to unlock all legal intelligence“The rule does not spell out any specific requirements for the content of the suggestion of death, and we decline to add requirements that are not stated in the rule.”
Establishes that the court will not impose content requirements on a suggestion of death beyond what Rule 1.260(a)(1) explicitly requires.
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Join FLexlaw to unlock all legal intelligenceVera sued Adeland, a Canadian citizen, for negligence in an automobile accident case. Adeland died, and defense counsel filed a minimal suggestion of …
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COPE, J.
Plaintiff-appellant Camilo Vera appeals the dismissal of his complaint against defendant-appellee Chamberland Adeland for failure to substitute an appropriate party upon the death of the defendant. We reverse.
The plaintiff sued the defendant for negligence in an automobile accident case. The defendant, a Canadian citizen, was represented by counsel provided through his automobile insurance policy.
The defendant’s counsel filed a suggestion of death, stating that the defendant had passed away. Under Florida Rule of Civil Procedure 1.260(a)(1), this filing triggered a ninety-day period for substitution of a new party defendant.
On the ninety-sixth day, successor defense counsel served a motion to dismiss the action because the plaintiff had not moved to substitute a proper party defendant in place of the decedent. The plaintiff then requested an extension of time and soon thereafter filed a motion for substitution of parties. The court dismissed the action because the plaintiff had not moved to substitute parties, or filed a motion for extension of time, within ninety days. This appeal follows.
II.
The plaintiff first argues that the suggestion of death filed by defense counsel was legally insufficient because it contained no information about the date and location of the defendant’s death, and did not state whether an estate had been opened. The plaintiff maintains that if a suggestion of death does not reveal such information, it should be deemed legally insufficient to start the ninety-day time period for substitution of parties. We reject this argument.
Rule 1.260 states, in part:
Rule 1.260. Survivor; Substitution of Parties
(a) Death.
(1) 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 and, together with the notice of hearing, shall be served on all parties as provided in rule 1.080 and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within 90 days after the death is suggested upon 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.
Fla. R. Civ. P. 1.260(a)(1) (emphasis added).
The purpose of the rule is to provide an orderly procedure and timetable for substitution where a party has died during the course of the litigation. The rule does not spell out any specific requirements for the content of the suggestion of death, and we decline to add requirements that are not stated in the rule.
In this case, the suggestion of death stated in its entirety, “Comes now, the undersigned counsel for the Defendant, Adeland Chamberland, [and] state[s] that he has been notified that the Defendant, Adeland Chamberland, died approximately one year ago.” The rule does not require anymore specificity than this, although the better practice is to include the details relevant for substitution purposes. See Bruce J. Berman, Florida Civil Procedure ¶ 260.4, at 281 (2004 ed.) (“Although not expressly required by the language of the rule, the suggestion should include in formation necessary for any other party to move for substitution, such as ‘the status of the estate, identity of the personal representative, or ... the identity of next of kin or successors in interest.’ ”) (footnote omitted).
If we were to accept the plaintiffs argument, there would never be any certainty about how to calculate the time period after the suggestion of death is filed. Under the plaintiffs analysis, the ninety-day deadline can always be avoided if the suggestion of death omits any detail regarding the decedent’s demise and the existence of an estate. The plaintiffs theory is unworkable. The rules regarding calculation of time limits need to operate in a clear and predictable way.
Here, the defense filed a document entitled suggestion of death, which advised the parties that the decedent had died. Unil-luminating though it is, the document started the ninety-day time period.
Where, as here, defense counsel files an abbreviated suggestion of death, plaintiffs counsel should (a) contact opposing counsel for information regarding the date and place of death, and such information as defense counsel may have regarding whether an estate has been opened, see Scutieri v. Miller, 584 So. 2d 15 (Fla. 3d DCA 1991); or (b) propound discovery directed at obtaining the same information, or (c) both. If the ninety-day period proves to be insufficient, a request for extension of time may be made.
The parties are in agreement that as a general rule, if an estate has been opened, then the decedent’s personal representative should be substituted. If no estate has been opened, then another appropriate representative, such as a guardian ad litem, will need to be substituted.
III.
The plaintiff alternatively argues that under Florida Rule of Civil Procedure 1.090 he was entitled to an extension of time to substitute parties. Under the circumstances here, we agree. We note that Florida has a long-standing policy to determine civil disputes on the merits. See North Shore Hospital Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Thomas v. Feinberg, 745 So. 2d 500 (Fla. 3d DCA 1999).
The record indicates confusion and inconsistency over the question whether an estate had been opened for the decedent. It was the court’s recollection that this issue had been discussed at some point after the suggestion of death was filed, and that defense counsel had advised plaintiffs counsel in the hearing that there was no estate. However, defense counsel clarified (at the hearing on the motion to dismiss) that he was referring to the fact that an estate had not been opened for the decedent in the United States. In June 2002, after the defense filed the motion to dismiss, successor defense counsel advised plaintiff that while no estate had been established in Florida for the decedent, an 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.
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Speedway Superamerica, LLC v. Dupont, 933 So. 2d 75 (Fla. 5th DCA 2006)…83 (Fla. 5th DCA 2003); Quilling v. County of Sumter, 726 So. 2d 795 (Fla. 5th DCA 1999); Green v. CSX Transportation, Inc., 626 So. 2d 974 (Fla. 1st DCA 1993). . See North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Vera v. Adeland, 881 So. 2d 707, 710 (Fla. 3d DCA 2004). . See Natson v. Eckerd Corp., Inc., 885 So. 2d 945, 947 (Fla. 4th DCA 2004). Cf. Razner v. Wellington Regional Medical Center, Inc., 837 So. 2d 437 (Fla. 4th DCA 2002); Castleberry v. Edward M. Chadbourne, Inc., 810 So. 2d…
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Metcalfe v. Spencer LEE, M.D. & Mark A. Pinsky, M.D., P.A., 952 So. 2d 624 (Fla. 4th DCA 2007)…N.W. 2d 852, 858 n. 9 (2002) (stating that term “successors” is not defined by rule and that “[a] successor might include, for example, heirs or beneficiaries of a will or distributees of an estate that ha[s] been distributed”); cf. Vera v. Adeland, 881 So. 2d 707, 710 (Fla. 3d DCA 2004) (stating that “as a general rule, if an estate has been opened, then the decedent’s personal representative should be substituted,” but “[i]f no estate has been opened, then another appropriate representative, such as a guard…
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Schaeffler v. Yuliya Deych and Boris Bezrodnyy, 38 So. 3d 796 (Fla. 4th DCA 2010)…such information as defense counsel may have regarding whether an estate has been opened, see Scutieri v. Miller, 584 So. 2d 15 (Fla. 3d DCA 1991); or (b) propound discovery directed at obtaining the same information, or (c) both.” Vera v. Adeland, 881 So. 2d 707, 710 (Fla. 3d DCA 2004). Generally, if the decedent’s estate has been opened, then the personal representative should be substituted in place of the decedent; however, “[i]f no estate has been opened, then another appropriate representative, such as…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Scutieri v. Miller, 584 So. 2d 15 (Fla. 3d DCA 1991)
- 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)
- Theodora Campbell v. State, 745 So. 2d 500 (Fla. 1st DCA 1999)
- Pearl v. Kelly, 442 So. 2d 1012 (Fla. 3d DCA 1983)