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.
Categories: