Bono v. Dubree

350 So. 2d 26, 1977 Fla. App. LEXIS 16600

Opinions

DAUKSCH, Judge.

On appeal is an Order of the trial court dismissing Plaintiff’s cause of action because of Plaintiff’s failure to comply with Fla.R.Civ.P. 1.260(a) by not moving for substitution of parties within ninety days of the filing of a suggestion of the death of the Defendant, W. Norman Dubree. The question of excusable neglect is a most troublesome area with which judges must deal. There are no guidelines for a trial judge to follow and in our perusal of the various cases we find appellate courts almost evenly divided on nearly the same circumstances. In this case we must agree with the Appellant that the neglect was excusable and therefore reverse the Order dismissing the cause of action with directions to permit the substitution of the deceased party and proceed to trial.

REVERSED with directions.

DOWNEY, J., concurs. BURNSTEIN, MIETTE K., Associate Judge, dissents, with opinion.