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Florida Third DCA rules that motion for substitution by decedent's widow prior to her appointment as personal representative extinguished 90-day requirement under Fla.R.Civ.P. 1.260

On February 14, 2018, in Feller v. R.J. Reynolds Tobacco Company, No. 3D16-2389, the Florida Third DCA reversed a trial court’s order dismissing the plaintiff’s complaint with prejudice due to the plaintiff’s failure to move to substitute parties within 90 days of the suggestion of death on the record of the original plaintiff as required by Fla.R.Civ.P. 1.260. The Third DCA made two crucial rulings. First, the Court ruled that the motion for substitution filed by the plaintiff’s widow itself constituted a “suggestion of death” on the record triggering the 90-day deadline. The Court quoted from its previous ruling in Vera v. Adeland, 881 So. 2d 707, 709 (Fla. 3d DCA 2004), in support of this conclusion: “[t]he 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.” Second, the Court ruled that the filing of the motion for substitution also simultaneously extinguished the 90-day deadline because it satisfied the requirement of Rule 1.260(a)(1) that the motion to substitute be made within the 90-day period by “the successors or representatives of the deceased party.”

The defendant had alleged that the statute was not satisfied because at the time of the motion the surviving spouse’s application for appointment as personal representative of the decedent’s estate was still pending due to objections filed by the decedent’s adult children. The Third DCA disagreed, citing the Fourth DCA’s decision in Metcalfe v. Lee, 952 So. 2d 624, 630 (Fla. 4th DCA 2007) in support of the position that Rule 1.260 does not require that the motion for substitution be made by the appointed personal representative. More important for this ruling, the Third DCA also cited the Fifth DCA’s decision in Eusepi v. Magruder Eye Institute, 937 So. 2d 795, 798 (Fla. 5th DCA 2006) for the position that the 90-day period is extinguished by the filing of the motion for substitution, and it is then up to the trial court to decide whether there is a proper party to be substituted during the mandated hearing on the motion.”