Delay can be the bane of lawyers – sometimes a lawyer is responsible for an outcome, even though the cooperation of clients, judges and opposing counsel is necessary. When a plaintiff in a civil lawsuit dies, as can happen in personal injury cases, the case comes to a standstill until someone takes over for the deceased plaintiff. Florida has a Rule of Civil Procedure to permit this – Rule 1.260 – but it comes with a draconian penalty for botching its procedures and deadlines – dismissal of the case with prejudice.
What is Florida Rule of Civil Procedure 1.260?
Rule 1.260 – SURVIVOR; SUBSTITUTION OF PARTIES
(a) Death.
(1) 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 filed and served on all parties as provided in Florida Rule of General Practice and Judicial Administration 2.516 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 a statement noting the death is filed and served on all parties as provided in Rule of General Practice and Judicial Administration 2.516, the action shall be dismissed as to the deceased party.
(2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action shall not abate. A statement noting the death shall be filed and served on all parties as provided in Rule of General Practice and Judicial Administration 2.516 and the action shall proceed in favor of or against the surviving parties.
Rule 1.260(a) seems pretty simple, but the three primary requirements are anything but simple:
- “any party” or the “successors or representatives of the deceased party”
- needs to file a “motion for substitution”
- within “90 days after a statement noting the death is filed and served”
What is a Statement Noting the Death?
A “statement noting the death” is not specifically defined in Florida law, which can create a trap for the less observant. Most attorneys will file and serve a document styled as a “Suggestion of Death” when it is in their client’s interest to start the 90 day clock running, which would typically be defense counsel in the case. (Note that any party can file the statement noting the death, and defense counsel will often file one, whether it is the defendant or the plaintiff who has died.) In most situations, the party filing the statement noting the death wants such filing to be clear and unambiguous so that the 90 day clock starts running. But what happens if a pleading is filed that states a party has died, but only in passing? How obvious does the pleading need to be in order to alert the other parties that one of the parties has died?
In Blue v. R.J. Reynolds Tobacco Co., 234 So. 3d 863 (2nd DCA 2018), a document was filed, styled as a “joint notice and stipulation,” for the purposes of putting into the record an agreement that two defendants in the case were being dropped.
In March 2014, Blue and Cooper, along with Liggett Group LLC (Liggett) and Vector Group Ltd. (Vector), filed a joint notice and stipulation with the trial court explaining that Liggett and Vector were being dropped as party defendants. The stipulation included the following: “COMES NOW, the Plaintiffs, Yvonne Blue and Deborah Cooper, as Proposed PR[s] for the Estate of Ramona Leonard, deceased ….” The tobacco companies remained in the case as party defendants, and the case proceeded. Initially, Blue and Cooper did not move to substitute themselves as proper parties, and no formal suggestion of Ms. Leonard’s death was ever filed. Instead, Blue and Cooper and the tobacco companies continued to litigate the case for almost two years.]
No motion to substitute for the deceased plaintiff was made within 90 days of the filing of the stipulation, and eventually the tobacco company defendants moved to dismiss the case, contending that the stipulation was the required “statement noting the death.” The Court rejected the assertion, explaining:
While the rule only requires a statement “of the fact of the death” of a party and does not otherwise require specific information such as the location or date of the death or the name of a person to be substituted, see King v. Tyree’s of Tampa, Inc., 315 So.2d 538, 540 (Fla. 2d DCA 1975) ; Martin v. Hacsi, 909 So.2d 935, 936 (Fla. 5th DCA 2005) ; Vera v. Adeland, 881 So.2d 707, 709–10 (Fla. 3d DCA 2004), we are not persuaded that the joint notice and stipulation of dropping defendants was sufficient to constitute a suggestion of death that triggered the ninety-day period. A review of the docket would not reveal any document having been filed that, on its face, reflects that the original plaintiff died. Instead, that fact would only become apparent after reading the contents of each and every document filed.
We do not construe the passing reference to Ms. Leonard’s death—which was made within a document that related to a settlement with other defendants—as a suggestion of death as contemplated in rule 1.260(a)(1). Rather, we construe rule 1.260 to require the filing of a document that is intended to notify all of the litigants of a party’s death. Cf. Wilson v. Clark, 414 So.2d 526, 530 (Fla. 1st DCA 1982) (interpreting the words “upon the record” in rule 1.260 to mean that the time period set forth in the rule is triggered “by the recording or the filing of the suggestion of death” rather than by the service of the pleading).
What is a Motion for Substitution Under Rule 1.260?
Of course, if a personal representative has been appointed by the probate court, a simple motion for substitution can be filed, asking the Court to substitute the new personal representative in place of the deceased plaintiff. But what happens in situations where a personal representative is not appointed by the probate court within the 90-day period. Such delays occur regularly, whether from confusion, litigation in the probate court, or judicial delay. And in many cases, the lawyer handling the civil case is not the same lawyer handling the probate matter, which could be in another county or even in another state. And if the defendant dies, it’s then the plaintiff’s problem to get a personal representative appointed on behalf of the deceased defendant’s estate. How easy is that in 90 days?
In Green v. Polukoff, 4D2022-2818 (4th DCA 2024), the attorney handling a personal injury action for the plaintiff in civil court was faced with the 90-day deadline running without a personal representative having been appointed by the probate court for the defendant’s estate. So the plaintiff’s lawyer did what he thought (or hoped) would suffice:
Within 90 days of the suggestion of death, Green moved to have the trial court appoint a guardian ad litem, an administrator ad litem, and an attorney ad litem (“Motion to Appoint”) to represent Defendant’s interests. This motion was not titled as a motion for substitution, but it stated that “pursuant to Florida Rule of Civil Procedure 1.260,” Green sought “an order appointing an Attorney ad Litem, Guardian ad Litem and Administrator ad Litem, so that the interests of the Defendant’s Estate is represented during the pendency of this action and in any other action that may be filed against the Estate.” The trial court denied this motion.
Ninety-one days after the suggestion of death was filed, the defendant moved to dismiss the complaint, contending that Green’s Motion to Appoint was not the required motion for substitution under rule 1.260. Not so fast:
“The purpose of rule 1.260 is to facilitate the rights of persons having lawful claims against estates being preserved, so that otherwise meritorious actions will not be lost.” Scott v. Morris, 989 So.2d 36, 37 (Fla. 4th DCA 2008) (internal citation omitted). The rule is designed to protect “plaintiffs asserting claims against a decedent, and the decedent’s heirs, not defendants.” R.J. Reynolds Tobacco Co. v. Lacey, 276 So.3d 103, 107 (Fla. 3d DCA 2019); see also Eusepi v. Magruder Eye Inst., 937 So.2d 795, 798 (Fla. 5th DCA 2006) (“The rule is supposed to dispel rigidity, create flexibility and be given liberal effect.”).
In Scott, we interpreted the meaning of “motion for substitution” in rule 1.260(a)(1) broadly. There, the plaintiff filed a “Motion to substitute party or parties” within 90 days of the defendant’s suggestion of death. 989 So.2d at 37. The motion did not request any specific party be substituted for the defendant. Id. Instead, the motion requested that defense counsel provide the information necessary to open the estate and that the trial court order the defendant to provide that information. Id. We held that this filing was a “motion for substitution” under rule 1.260(a)(1), and its filing within 90 days meant the trial court could no longer dismiss the case based on noncompliance with the 90-day requirement. Id.
Applying Scott, we conclude that Green’s “Motion to Appoint” was a “motion for substitution” under rule 1.260(a)(1). Green’s motion requested the trial court appoint someone to represent the interests of the deceased defendant, which is all that Scott and rule 1.260(a)(1) require. See M.R. v. A.B.C., 739 So.2d 118, 119 (Fla. 3d DCA 1999) (“There are no specific requirements for the content of the motion, other than that it seek an order substituting a ‘proper’ party in place of the decedent.” (citation and quotation marks omitted)). Green was not required to label his motion as a “motion for substitution,” when his Motion to Appoint was a clear attempt to comply with rule 1.260(a)(1), evidenced by its explicit citation to rule 1.260(a)(1). See Mandelko v. Lopresti, 345 So.3d 314, 317 (Fla. 4th DCA 2022) (“With respect to the characterization of motions, Florida courts place substance over form.” (quoting IndyMac Fed. Bank FSB v. Hagan, 104 So.3d 1232, 1236 (Fla. 3d DCA 2012))); Metcalfe v. Lee, 952 So.2d 624, 629 n.2 (Fla. 4th DCA 2007) (explaining that where the plaintiff attempts to substitute an improper party, the trial court should deny the motion, but the timely filing of the denied motion nevertheless makes dismissal pursuant to rule 1.260(a)(1) no longer the appropriate remedy).
Because Green timely filed a motion for substitution, the trial court could not dismiss the case under rule 1.260(a)(1). See Mattick v. Lisch, 304 So.3d 32, 33 (Fla. 2d DCA 2018) (“[T]he motion to substitute was filed within ninety days of the suggestion of death. Thus, rule 1.260(a)(1) did not provide a basis for dismissal.”). The formal appointment of a personal representative is not a precondition to filing a motion to substitute. See Metcalfe, 952 So.2d at 629-30; Eusepi, 937 So.2d at 798; M.R., 739 So.2d at 119.
Who Can File a Motion for Substitution Under Rule 1.260?
Rule 1.260 is written broadly – “any party” or the “successors or representatives of the deceased party” can file the motion to substitution. Even though it is the personal representative that needs to be eventually substituted into the case, the Rule does not really restrict who can file the motion.
In Feller v. R.J. Reynolds Tobacco Co., 240 So.3d 61 (Fla. App. 2018), a common situation occurred, where an heir of the deceased plaintiff filed the Motion for Substitution, just not the personal representative:
There is no dispute that Mr. Feller’s counsel timely filed a motion for substitution. The tobacco companies, however, argue that, because the motion for substitution sought to substitute Mr. Feller’s wife, Ms. Seltzer, and Ms. Seltzer had not been appointed as the personal representative of the estate and was not subsequently appointed, Ms. Seltzer was not a “proper party,” and because she was not a “proper party,” the initial motion for substitution filed within the ninety-day period did not satisfy the requirements of rule 1.260(a)(1), thus requiring dismissal of Mr. Feller’s lawsuit against the tobacco companies.
The Court said the Motion for Substitution was sufficient:
The rule, however, does not require that the motion for substitution be made by the “proper party” to be substituted in order to satisfy the requirement that a motion for substitution be made within ninety days after the death is suggested upon the record. Rather, it only requires that a motion for substitution be “made” within ninety days by “any party or by the successors or representatives of the deceased party.”
We note that if a plaintiff attempts to substitute an improper party, then a court can deny the motion for substitution. Or, if the motion is granted and it is later discovered that an improper party has been substituted, that party may be dropped upon the motion of a party or by order of the court on its own initiative. See Fla. R. Civ. P. 1.250(b), 1.420(a)(2). Under both scenarios, however, the action would abate until the party’s estate, or other appropriate legal representative, has been substituted. See Cope v. Waugh, 627 So.2d 136, 136 (Fla. 1st DCA 1993) (“Upon the death of an indispensable party, the action abates until the deceased party’s estate, or other appropriate representative, has been substituted pursuant to rule 1.260(a)(1).”). However, as we already stated, once a party, successor, or representative of the deceased files or serves the motion [for substitution] along with the corresponding notice of hearing within the required ninety-day time period, dismissal is no longer the appropriate remedy pursuant to rule 1.260.
