If you’re litigating a case and the defendant dies, the last thing you need is to get pulled into a side fight over who’s appointed personal representative (PR) of the defendant’s probate estate. On the other hand, no one wants to get their case dismissed for failing to comply with rule 1.260’s 90-day deadline for deceased litigants. Here’s the relevant portion of that rule:
Fl. R. Civ. P. 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. … Unless the motion for substitution is made within 90 days after 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.
90 days may sound like plenty of time to get a PR appointed and substituted in. And it usually is — assuming the defendant’s heirs are inclined to cooperate. But let’s say they’re not so inclined and they instead drag their feet for more than 90 days on getting a PR appointed.
Is that a sneaky way to win by default? Depends on how you read rule 1.260. If you read this rule as only requiring you to file your motion for substitution within 90 days, it doesn’t matter how long it takes to get a PR appointed, you’ve met your filing deadline. On other hand, if you read the rule as actually requiring a PR to be substituted in for a deceased defendant within 90 days, then there’s all sorts of room for bad-faith gamesmanship. So which is it?
Link to Case Study Case Study
Green v. Polukoff, 377 So.3d 1175 (Fla. 4th DCA January 17, 2024)
This was a standard car-accident case — until it wasn’t. The defendant died during the pendency of the action. Defense counsel then filed a suggestion of death, triggering rule 1.260(a)(1)‘s 90-day deadline. Within 90 days the plaintiff filed a motion “pursuant to Florida Rule of Civil Procedure 1.260” for an order substituting in an attorney ad litem, guardian ad litem or administrator ad litem to represent to the deceased defendant. The trial court effectively ruled that none of these were viable options; if you want to litigate against a deceased party you need to sue his PR. And the trial court was right on this point.
But things took a wrong turn when the trial court went on to dismiss plaintiff’s case instead of abating it until such time that a PR was appointed and substituted in for the deceased party. So saith the 4th DCA:
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; MR., 739 So. 2d at 119.
Since Green filed a timely motion for substitution, “[t]he action should have been abated until the estate or a proper legal representative had been substituted.” Mattick, 304 So. 3d at 33.
Link to Lesson learned? Lesson learned?
In this case the 4th DCA tells us the plaintiff “attempted to open the [defendant’s] estate [for over a] year but was unable to do so.” There may be no way to get around that kind of delay, but that doesn’t mean your case is doomed. The text of rule 1.260 simply requires that the motion for substitution be filed within 90 days, not that the actual appointment of the PR and the substitution occur within 90 days. Once your motion’s filed, your trial judge should abate your case pending appointment and substitution of a PR — no matter how long that process takes.