ROMINGER LEGAL
Florida Case Law & Florida Court Opinions - Florida Law
Need Legal Help?
NOT FINDING WHAT YOU NEED? -CLICK HERE
This court case was taken from the Florida Court's web site. Search our site for more cases - CLICK HERE

LEGAL RESEARCH
COURT REPORTERS
PRIVATE INVESTIGATORS
PROCESS SERVERS
DOCUMENT RETRIEVERS
EXPERT WITNESSES

 

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

 
Web Rominger Legal

Legal News - Legal Headlines

 


NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.



IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 2004



CAMILO
VERA,
**

Appellant, **

vs.
**
CASE
NO.
3D02-3349

CHAMBERLAND
ADELAND, **
LOWER
Appellee.

** TRIBUNAL NO. 98-26226


Opinion filed September 9, 2004.

An appeal from the Circuit Court for Miami-Dade County, Amy N.
Dean, Judge.

Jason S. Remer and J.H. Zidell, for appellant.

Adams & Adams, P.A., and Derek B. Barba, for appellee.


Before COPE, SHEVIN and RAMIREZ, JJ.


COPE, J.
Plaintiff-appellant Camilo Vera appeals the dismissal of his
complaint against defendant-appellee Chamberland Adeland for
failure to substitute an appropriate party upon the death of the
defendant. We reverse.




The plaintiff sued the defendant for negligence in an
automobile accident case. The defendant, a Canadian citizen, was
represented by counsel provided through his automobile insurance
policy.
The defendant's counsel filed a suggestion of death, stating
that the defendant had passed away. Under Florida Rule of Civil
Procedure 1.260(a)(1), this filing triggered a ninety-day period
for substitution of a new party defendant.
On the ninety-sixth day, successor defense counsel served a
motion to dismiss the action because the plaintiff had not moved to
substitute a proper party defendant in place of the decedent. The
plaintiff then requested an extension of time and soon thereafter
filed a motion for substitution of parties. The court dismissed
the action because the plaintiff had not moved to substitute
parties, or filed a motion for extension of time, within ninety
days. This appeal follows.
II.
The plaintiff first argues that the suggestion of death filed
by defense counsel was legally insufficient because it contained no
information about the date and location of the defendant's death,
and did not state whether an estate had been opened. The plaintiff
maintains that if a suggestion of death does not reveal such
information, it should be deemed legally insufficient to start the
ninety-day time period for substitution of parties. We reject this
argument.


2


Rule 1.260 states, in part:

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
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 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 purpose of the rule is to provide an orderly procedure and
timetable for substitution where a party has died during the course
of the litigation. The rule does not spell out any specific
requirements for the content of the suggestion of death, and we
decline to add requirements that are not stated in the rule.

In this case, the suggestion of death stated in its entirety,
"Comes now, the undersigned counsel for the Defendant, Adeland
Chamberland, [and] state[s] that he has been notified that the
Defendant, Adeland Chamberland, died approximately one year ago."
The rule does not require anymore specificity than this, although
the better practice is to include the details relevant for
substitution purposes. See Bruce J. Berman, Florida Civil
Procedure 260.4, at 281 (2004 ed.) ("Although not expressly
required by the language of the rule, the suggestion should include


3


information necessary for any other party to move for substitution,
such as `the status of the estate, identity of the personal
representative, or . . . the identity of next of kin or successors
in interest.'") (footnote omitted).

If we were to accept the plaintiff's argument, there would
never be any certainty about how to calculate the time period after
the suggestion of death is filed. Under the plaintiff's analysis,
the ninety-day deadline can always be avoided if the suggestion of
death omits any detail regarding the decedent's demise and the
existence of an estate. The plaintiff's theory is unworkable. The
rules regarding calculation of time limits need to operate in a
clear and predictable way.

Here, the defense filed a document entitled suggestion of
death, which advised the parties that the decedent had died.
Unilluminating though it is, the document started the ninety-day
time period.

Where, as here, defense counsel files an abbreviated

suggestion of death, plaintiff's counsel should (a) contact
opposing counsel for information regarding the date and place of
death, and such information as defense counsel may have regarding
whether an estate has been opened, see Scutieri v. Miller, 584 So.
2d 15 (Fla. 3d DCA 1991); or (b) propound discovery directed at
obtaining the same information, or (c) both. If the ninety-day
period proves to be insufficient, a request for extension of time
may be made.

The parties are in agreement that as a general rule, if an


4


estate has been opened, then the decedent's personal representative
should be substituted. If no estate has been opened, then another
appropriate representative, such as a guardian ad litem, will need
to be substituted.
III.
The plaintiff alternatively argues that under Florida Rule of
Civil Procedure 1.090 he was entitled to an extension of time to
substitute parties. Under the circumstances here, we agree. We
note that Florida has a long-standing policy to determine civil
disputes on the merits. See North Shore Hospital Inc. V. Barber,
143 So.2d 849 (Fla. 1962); Thomas v. Feinberg, 745 So.2d 500 (Fla.
3d DCA 1999).
The record indicates confusion and inconsistency over the
question whether an estate had been opened for the decedent. It
was the court's recollection that this issue had been discussed at
some point after the suggestion of death was filed, and that
defense counsel had advised plaintiff's counsel in the hearing that
there was no estate. However, defense counsel clarified (at the
hearing on the motion to dismiss) that he was referring to the fact
that an estate had not been opened for the decedent in the United
States. In June 2002, after the defense filed the motion to
dismiss, successor defense counsel advised plaintiff that while no
estate had been established in Florida for the decedent, an estate
was established in Canada. In view of the confusion on this issue,
we conclude that excusable neglect was shown by the plaintiff and
an extension of time for substitution should have been granted.


5


See Tucker v. Firestone Tire and Rubber Co., 552 So. 2d 1178, 1179
(Fla. 2d DCA 1989); Pearl v. Kelly, 442 So. 2d 1010, 1013 (Fla. 3d
DCA 1983).
Reversed and remanded for further proceedings consistent
herewith.



6

Ask a Lawyer

 

 

FREE CASE REVIEW BY A LOCAL LAWYER!
|
|
\/

Personal Injury Law
Accidents
Dog Bite
Legal Malpractice
Medical Malpractice
Other Professional Malpractice
Libel & Slander
Product Liability
Slip & Fall
Torts
Workplace Injury
Wrongful Death
Auto Accidents
Motorcycle Accidents
Bankruptcy
Chapter 7
Chapter 11
Business/Corporate Law
Business Formation
Business Planning
Franchising
Tax Planning
Traffic/Transportation Law
Moving Violations
Routine Infractions
Lemon Law
Manufacturer Defects
Securities Law
Securities Litigation
Shareholder Disputes
Insider Trading
Foreign Investment
Wills & Estates

Wills

Trusts
Estate Planning
Family Law
Adoption
Child Abuse
Child Custody
Child Support
Divorce - Contested
Divorce - Uncontested
Juvenile Criminal Law
Premarital Agreements
Spousal Support
Labor/Employment Law
Wrongful Termination
Sexual Harassment
Age Discrimination
Workers Compensation
Real Estate/Property Law
Condemnation / Eminent Domain
Broker Litigation
Title Litigation
Landlord/Tenant
Buying/Selling/Leasing
Foreclosures
Residential Real Estate Litigation
Commercial Real Estate Litigation
Construction Litigation
Banking/Finance Law
Debtor/Creditor
Consumer Protection
Venture Capital
Constitutional Law
Discrimination
Police Misconduct
Sexual Harassment
Privacy Rights
Criminal Law
DUI / DWI / DOI
Assault & Battery
White Collar Crimes
Sex Crimes
Homocide Defense
Civil Law
Insurance Bad Faith
Civil Rights
Contracts
Estate Planning, Wills & Trusts
Litigation/Trials
Social Security
Worker's Compensation
Probate, Will & Trusts
Intellectual Property
Patents
Trademarks
Copyrights
Tax Law
IRS Disputes
Filing/Compliance
Tax Planning
Tax Power of Attorney
Health Care Law
Disability
Elder Law
Government/Specialty Law
Immigration
Education
Trade Law
Agricultural/Environmental
IRS Issues

 


Google
Search Rominger Legal


 


LEGAL HELP FORUM - Potential Client ? Post your question.
LEGAL HELP FORUM - Attorney? Answer Questions, Maybe get hired!

NOW - CASE LAW - All 50 States - Federal Courts - Try it for FREE


 


Get Legal News
Enter your Email


Preview

We now have full text legal news
drawn from all the major sources!!

ADD A SEARCH ENGINE TO YOUR PAGE!!!

TELL A FRIEND ABOUT ROMINGER LEGAL

Ask Your Legal Question Now.

Pennsylvania Lawyer Help Board

Find An Attorney

TERMS OF USE - DISCLAIMER - LINKING POLICIES

Created and Developed by
Rominger Legal
Copyright 1997 - 2010.

A Division of
ROMINGER, INC.