GOLDIE CANTER, APPELLANT,
v.
JULE HYMAN, APPELLEE
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The Third District Court of Appeal reversed a trial court's order substituting a personal representative as plaintiff in a lawsuit, holding that the substitution motion was untimely filed under Florida Rule of Civil Procedure 1.260(a)(1) and should have resulted in dismissal of the action.
The trial court erred in failing to dismiss the action. Under Rule 1.260(a)(1), unless a motion for substitution is made within 90 days after the death is suggested upon the record, the action must be dismissed as to the deceased party. The court should have granted the appellant's motion to dismiss.
[1] An action shall be dismissed if a motion for substitution of parties is not made within 90 days after the death is suggested upon the record, unless an extension is grant…
[2] A trial court errs in failing to dismiss an action when the plaintiff fails to file a motion for substitution within the 90-day period prescribed by Rule 1.260(a)(1) and…
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Join FLexlaw to unlock all legal intelligence“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.”
The controlling rule that establishes the mandatory 90-day deadline for filing a substitution motion after death is suggested.
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Join FLexlaw to unlock all legal intelligenceThe suggestion of death was filed in January 1976, but the motion for substitution of the proper party was not filed until October 1977, nearly 22 mon…
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KEHOE, Judge.
Appellant, defendant below, brings this interlocutory appeal from the trial court’s order substituting personal representative as plaintiff and denying her motion to dismiss the cause of action pursuant to Florida Rule Civil Procedure 1.260. We reverse.
Appellant contends that the trial court erred in failing to dismiss the action pursuant to Florida Rule Civil Procedure 1.260(a)(1) because appellee failed to file an appropriate motion for substitution within 90 days after filing the suggestion of death. The pertinent portion of this rule reads as follows:
“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.”
In this ease the suggestion of death was filed in January, 1976, and the motion for substitution was filed in October, 1977. Further the record is devoid both of any motion for extension of time within which to file a motion for substitution under Rule 1.260(a)(1) or an attempt to make a showing of any difficulty that might have delayed filing the motion for substitution. Alternatively, a request for an administrator ad litem could have been made. Under these circumstances, we believe that the trial court erred in failing to grant appellant’s motion to dismiss the action. See King v. Tyree’s of Tampa, Inc., 315 So. 2d 538 (Fla.2d DCA 1975). Accordingly, the order appealed is reversed with directions to the trial court to dismiss the action.
Reversed with directions.
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Citator
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Wilson v. Clark, 414 So. 2d 526 (Fla. 1st DCA 1982)…ted upon. Therefore, it is apparent that the lower court’s final judgment did not extinguish this action.3 Because of the filing of the suggestion of death, the appellee’s counsel should have filed a timely motion for substitution. Canter v. Hyman, 363 So. 2d 29, 30 (Fla. 3d DCA 1978), cert. denied, 368 So. 2d 1368 (Fla.1979); Nationwide Mutual Fire Insurance Co. v. Holmes, 352 So. 2d 1233, 1234 (Fla. 4th DCA 1977). We also reject appellee’s argument that the motion for substitution was timely filed pursua…
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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)…motion. We leave for the trial courts to determine who can be “proper parties” pursuant to governing law. But, we remark that where a personal representative has been appointed, he or she is most certainly a proper party. See also Canter v. Hyman, 363 So. 2d 29, 30 (Fla. 3d DCA 1978) (stating that an administrator ad litem can be appointed to avoid delay). Having ruled that the motion for substitution was timely made, the issues regarding the trial court’s refusal to grant the plaintiffs ore tenus motion…
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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)…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. Th…
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- King v. Tyree's OF Tampa, Inc., 315 So. 2d 538 (Fla. 2d DCA 1975)