MARK STERN v. HILLEL A. HORWITZ

249 So. 3d 688

• Court: District Court of Appeal of Florida
• Decided: May 30, 2018
• Docket: 17-3044
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

MARK STERN, ) ) Appellant, ) ) v. ) Case No. 2D17-3044 ) HILLEL A. HORWITZ; PALM AIRE AT ) DESOTO LAKES COUNTRY CLUB ) CONDOMINIUM ASSOCIATION, INC.; ) and PROGRESSIVE COMMUNITY ) MANAGEMENT, ) ) Appellees. ) ___________________________________)

Opinion filed May 30, 2018.

Appeal from the Circuit Court for Manatee County; Gilbert A. Smith, Jr., Judge.

Susan J. Silverman, Sarasota, for Appellant.

Ashley E. Ettaro, Jeffrey A. Caglianone, and David R. Reed of Caglianone & Miller, P.A., Tampa, for Appellee Hillel A. Horwitz.

Peter J. Delahunty of Law Office of Peter J. Delahunty, Tampa, for Appellees Palm Aire at DeSoto Lakes Country Club Condominium Association, Inc., and Progressive Community Management.

No appearance for remaining Appellees. KHOUZAM, Judge.

Mark Stern appeals the dismissal of his negligence cause of action

against Hillel A. Horwitz, a deceased party, as well as the granting of final summary

judgment in favor of Palm Aire at DeSoto Lakes Country Club Condominium

Association, Inc., and Progressive Community Management. We affirm without

comment the granting of final summary judgment. However, because the trial court

erroneously dismissed Mr. Stern's action against Mr. Horwitz under Florida Rule of Civil

Procedure 1.260(a), we reverse.

On February 16, 2011, Mr. Stern filed a complaint against Mr. Horwitz,

alleging that Mr. Horwitz had operated his golf cart in a negligent manner, causing Mr.

Stern bodily injuries. On August 9, 2016, counsel for Mr. Horwitz filed a suggestion of

death, indicating that Mr. Horwitz had died. On August 22, 2016, Mr. Stern, who was

representing himself at that time, filed a motion to substitute Mr. Horwitz with a personal

representative of Mr. Horwitz's estate or another authorized person under rule 1.260. A

notice of hearing was not filed with the motion to substitute; it was filed ten months later.

On March 8, 2017, counsel for Mr. Horwitz filed a motion to dismiss Mr.

Stern's complaint. Mr. Horwitz's attorney argued that because a notice of hearing was

neither filed with the motion to substitute nor within the ninety days of the filing of the

suggestion of death, rule 1.260(a) mandated dismissal of Mr. Horwitz's complaint. In

response, Mr. Stern contended that his complaint should not be dismissed because his

motion for substitution was timely served based on the plain language of the rule.

After holding a hearing on the motion, the trial court, relying on Metcalfe v.

Lee, 952 So. 2d 624 (Fla. 4th DCA 2007), granted the motion to dismiss because Mr.

-2- Stern failed to comply with rule 1.260(a)'s requirement that a notice of hearing be

served with the motion to substitute. However, we disagree with the trial court's reliance

on Metcalfe. For the reasons set forth below, we hold that rule 1.260(a) is clear and

unambiguous on its face and does not require dismissal when a notice of hearing is not

served contemporaneously with the motion for substitution.

Because this issue involves the interpretation of a Florida rule of civil

procedure, our standard of review is de novo. See Ochoa v. Koppel, 197 So. 3d 77, 79-

80 (Fla. 2d DCA 2016) (citing Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598, 599

(Fla. 2006)), review granted, No. SC16-1474, 2016 WL 9454296 (Fla. Nov. 9, 2016).

Rule 1.260(a) governs the process for substitution of deceased parties. It

provides, in relevant part, as follows:

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.

Fla. R. Civ. P. 1.260(a)(1) (emphasis added).

The first sentence of rule 1.260(a)(1) authorizes a court to order

substitution of the proper parties in the event that "a party dies and the claim is not

thereby extinguished." The second sentence of the rule allows "any party" or successor

or representative of the deceased party to move to substitute the proper party for the

deceased person. Id. And if such a motion is made, the rule requires that the motion

-3- for substitution along with a notice of hearing be served on all parties in accordance with

rule 1.080 and on all nonparties in the same manner as the service of a summons. Id.

The third sentence of rule 1.260(a)(1) provides a mechanism for the

dismissal of a cause of action against a deceased party. The rule provides that if the

motion for substitution is not "made within [ninety] days" after the party's death is

suggested on the record, then "the action shall be dismissed as to the deceased party."1

See Mut. of Omaha Ins. Co. v. White, 554 So. 2d 12, 13 (Fla. 3d DCA 1989) ("[T]he

generic term 'made,' when read in context, contemplates that the motion for substitution

is timely if served or filed within ninety days."). In other words, dismissal is not

warranted once two things occur: (1) the party's death is suggested upon the record and

(2) the motion for substitution is filed or served within ninety days of the suggestion of

death. Significantly, unlike the second sentence which requires both the motion and the

notice of hearing to be served upon all parties and nonparties, the third sentence

concerning dismissal of an action omits any mention of serving "a notice of hearing."

Cf. Knowles v. Beverly Enters.-Fla., Inc., 898 So. 2d 1, 13 (Fla. 2004) (Cantero, J.,

concurring) ("[W]e are not at liberty to add words to statutes that were not placed there

by the Legislature." (quoting Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999))). As such, the

plain language of the rule indicates that dismissal is triggered only when the motion for

substitution is not filed or served within the ninety-day period. See Scott v. Morris, 989

So. 2d 36, 37 n.1 (Fla. 4th DCA 2008) (recognizing that "the rule requires only that the

1Ofcourse, this interpretation does not preclude a party from raising excusable neglect as a defense to dismissal under rule 1.260(a)(1). See Mims ex rel. Mims v. Am. Sr. Living of Dade City, FL, LLC, 36 So. 3d 935, 936 (Fla. 2d DCA 2010); Tucker v. Firestone Tire & Rubber Co., 552 So. 2d 1178, 1179 (Fla. 2d DCA 1989).

-4- motion for substitution be made within ninety days"); see also Eusepi v. Magruder Eye

Inst., 937 So. 2d 795, 798 (Fla. 5th DCA 2006) (acknowledging that rule 1.260

"specifies only that the motion [for substitution] be filed within ninety days" and that "the

ninety-day period referenced in the rule has served its purpose once the motion is filed."

(emphasis added)).

Additionally, as we stated earlier in Blue v. R.J. Reynolds Tobacco Co.,

234 So. 3d 863 (Fla. 2d DCA 2018), the purpose of rule 1.260 was to "allow more

flexibility in substitution." Id. at 867 (quoting N.H. Ins. Co. v. Kimbrell, 343 So. 2d 107,

109 (Fla. 1st DCA 1977)). Its ninety-day time period for filing or serving the motion for

substitution "was not intended to act as a bar to otherwise meritorious actions." Id.

(quoting Kimbrell, 343 So. 2d at 109); see also Scott, 989 So. 2d at 37 (stating that 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" (citation

omitted)); Eusepi, 937 So. 2d at 798 n.2 (noting that "[o]nce the motion for substitution

is timely filed . . . dismissal is not available under the ninety-day provision of Rule

1.260"). Indeed, as the Fourth District noted, "[t]here is little point in setting a hearing

until it is known if an estate has been opened or will be opened." Scott, 989 So. 2d at

37 n.1.

Moreover, a notice of hearing is distinct from a motion for substitution of a

deceased party in both form and substance. A substitution motion is concerned

primarily with the process of replacing a deceased party with the proper party—if or

when that party becomes available—in order to preserve meritorious actions. See

Eusepi, 937 So. 2d at 798 ("Rule 1.260 is in its present form precisely so that the

-5- process of substitution of a new party for a party who dies while litigation is pending will

not cause otherwise meritorious actions to be lost."). In contrast, the notice of hearing

on a motion for substitution is concerned primarily with safeguarding the due process

rights of the affected parties—but only once the proper party exists. See id. ("[W]here

the estate is not in existence at the time the court considers the motion [for substitution],

the court should not enter an order granting the motion." (citing Gronowicz v. Leonard,

109 F.R.D. 624, 626 (S.D.N.Y. 1986))). Indeed, only when the proper party is in

existence may it then be properly served and substituted; thus, allowing the proper party

an adequate opportunity to defend itself.2 Cf. Schaeffler v. Deych, 38 So. 3d 796, 800,

801 (Fla. 4th DCA 2010) (holding that the trial court violated the estate's due process

rights by proceeding to enter final judgment without substitution of the proper party);

Arena Parking, Inc. v. Lon Worth Crow Ins. Agency, 768 So. 2d 1107, 1111 (Fla. 3d

DCA 2000) ("It is fundamental that due process guarantees to a party notice and an

opportunity to be heard before his rights are taken away from him by order, decree or

judgment of any court." (quoting Mayflower Inv. Co. v. Brill, 188 So. 205, 205 (Fla.

1939))).

Here, it is clear that the trial court erred in dismissing Mr. Stern's action

against Mr. Horwitz. The record reflects that the suggestion of death was filed on

2Mr. Horwitz's attorneys argue that not requiring a notice of hearing to be filed or served along with the motion for substitution will result in the perpetual abatement of an action. Though we certainly do not condone Mr. Stern's behavior in this action, such a concern is not warranted. Rule 1.260 places no limitations on whom may serve or file a notice of hearing following the motion for substitution being served within the ninety-day period. In fact, rule 1.260(a)(1) provides specifically that "any party," including "the successors or representatives of the deceased party," may file or serve such a motion with a notice of hearing. (Emphasis added.)

-6- August 9, 2016, and that the motion for substitution was filed ten days later on August

19, 2016. Accordingly, because the motion for substitution was timely filed within ninety

days of the filing of the suggestion of death, we conclude that the trial court erred in

dismissing Mr. Stern's complaint against Mr. Horwitz.

Finally, we note that any reliance upon the Fourth District's decision in

Metcalfe is misplaced. There, although the Fourth District interpreted rule 1.260 to

mean that a party must file the notice of hearing with the motion for substitution to

prevent dismissal, see Metcalfe, 952 So. 2d at 629, this interpretation was short lived.

A year later, the Fourth District in Scott cabined its previous interpretation, describing it

as dicta and acknowledging that rule 1.260 "requires only that the motion for substitution

be made within ninety days." Scott, 989 So. 2d at 37 n.1. Specifically, the Fourth

District reasoned that its prior statement was dicta because the issue of "[w]hether the

notice of hearing had to accompany the motion was not an issue in Metcalfe." Scott,

989 So. 2d at 37 n.1. In fact, the controlling issues in Metcalfe dealt with who had

standing to file a motion for substitution and when such a motion must be made. See

Metcalfe, 952 So. 2d at 628-30.

We therefore reverse and remand for reinstatement of Mr. Stern's cause

of action against Mr. Horwitz.

Affirmed in part, reversed in part, and remanded.

MORRIS and ROTHSTEIN-YOUAKIM, JJ., Concur.

-7-