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Florida Second DCA rules that trial erred in dismissing plaintiff's lawsuit for failure to serve notice of hearing with motion for substitution under Fla. R. Civ. P. 1.260

On May 30, 2018, in Stern v. Horwitz, No. 2S17-3044, the Florida Second DCA reversed a trial court order granting summary judgment for the defendant in a personal injury case. The trial court ruled that dismissal was warranted because following the defendant’s death the plaintiff had failed to include a notice of hearing along with his motion to substitute the defendant’s personal representative as a defendant in the case, as is required to be done under Fla. R. Civ. P. 1.260 within 90 days of the suggestion of death upon the record. The Second DCA concluded that while Rule 1.260 expressly requires that the notice of hearing accompany the motion to substitute, the statute only provides for the sanction of dismissal for the failure to file the motion.