Florida Proposal For Settlement A Nullity When Served After Death Of Party And Before Substitution of Estate Representative

When a party dies during a lawsuit, Florida law requires the substitution of the representative of the deceased party to continue the action.  In De La Riva v. Chavez, the Florida appeals court reversed an award of attorney’s fees pursuant to a proposal for settlement served after the original defendant’s death and before the proper substitution of his estate as the party defendant.

The Facts of De La Riva v. Chavez

This was a personal injury case pending in Broward County, Florida, where the party defendant, James Todd, died during the pendency of the litigation.  After his death, Todd’s counsel filed a timely suggestion of death.

An estate was opened for Todd in probate court in Miami-Dade County, Florida.  No personal representative was appointed.  Yet, back in Broward County, in October 2014, Plaintiff filed a First Amended Complaint identifying “John Doe” as the personal representative of Todd’s estate and substituting “John Doe” for Todd as party defendant.  The complaint was served on defendant’s counsel.  The complaint was not served on any representative of the estate (perhaps because there was no representative at the time the complaint was filed).

Back in Miami probate court, Lian de la Riva was appointed as curator of Todd’s estate in July 2015.  The curator was given full authority to defend and initiate all lawsuits on behalf of the estate and to have counsel to represent her and the estate on all matters, with the approval of the court.  Plaintiff did not substitute the curator for “John Doe” as party defendant in the personal injury case.

In December 2015, the plaintiff tendered a $40,000 proposal for settlement.  Todd’s estate was identified as the party defendant, and the proposal was sent by email to State Farm’s counsel and the curator. Plaintiff did not receive a response to this proposal.

Eventually, the Plaintiff substituted the curator of Todd’s Florida estate as the party defendant in the action.

After a May 2018 jury trial, Plaintiff received a verdict of about $112,000.  Plaintiff moved for attorney’s fees under the proposal for settlement.  Defendants opposed the motion for fees, arguing that the First Amended Complaint failed to name the curator of the estate as a defendant, and that as a result plaintiff’s proposal for settlement was a nullity.  The trial court found that the proposal for settlement was valid and awarded attorney’s fees for the Plaintiff.  The curator appealed.

What Happens When A Party Dies During Litigation?

Florida Rule of Civil Procedure 1.260 addresses what happens when a party to a lawsuit dies during litigation – we’ve written about this before, here.  Rule 1.260 states:

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 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.

“If an indispens[a]ble party to an action dies, ‘the action abates until the deceased party’s estate, or other appropriate legal representative, has been substituted pursuant to [R]ule 1.260(a)(1).’” Schaeffler v. Dech, 38 So. 3d 796, 799 (Fla. 4th DCA 2010) (quoting Cope v. Waugh, 627 So. 2d 136, 136 (Fla. 1st DCA 1993)).

When A Party Dies During Litigation Does The Estate Become The New Party?

No, an estate is not an entity that can be a party to litigation.   The representative of the estate (in the capacity as personal representative of the estate, or curator, etc.) must be substituted in as the proper party when the litigant dies.  As summarized by the Court:

“[I]t is well-settled that ‘an “[e]state” is not an entity that can be a party to litigation. It is the personal representative of the estate, in a representative capacity, that is the proper party.’” Spradley v. Spradley, 213 So. 3d 1042, 1045 (Fla. 2d DCA 2017) (quoting Ganske v. Spence, 129 S.W.3d 701, 704 n.1 (Tex. App. 2004)). “[O]nly when the proper party is in existence may it then be properly served and substituted . . . .” Stern v. Horwitz, 249 So. 3d 688, 691 (Fla. 2d DCA 2018) (citations omitted) (emphasis added).

Abate The Proceedings Until The Estate Representative Is Substituted In As A Party

Here, after the death of the defendant, Plaintiff actively continued the litigation by filing a First Amended Complaint against “John Doe” before an estate had been opened or a personal representative appointed.  Then, plaintiff served a Florida proposal for settlement before the curator of the estate was substituted in as the party defendant and served with the complaint.

The proper procedure would have been to abate the proceedings until the representative of the estate was substituted in as a party defendant and served with the complaint.

The First Amended Complaint filed against “John Doe, as personal representative of the estate” violated Rule 1.260 and the subsequent proceedings prior to the filing of the second amended complaint were a nullity, including the proposal for settlement (which was also not served properly under Florida law).  As concluded by the Florida appellate court:

Plaintiff’s proposal for settlement violated the party substitution requirements of Rule 1.260(a)(1) and the timing requirements of Rule 1.442(b). Because the proper procedure was not observed, Plaintiff’s proposal for settlement was a legal nullity and invalid. As such, it cannot serve as a basis for the award of attorney’s fees. Accordingly, the order granting Plaintiff’s motion for attorney’s fees and costs below is reversed.

Unfortunately, when a litigant dies, many times the Florida rules governing substitution of parties upon death are not followed.  Consulting and utilizing a Florida probate attorney might have saved the day in this case.

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