final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 14-13463, Jorge E. Cueto, Judge.
Burlington & Rockenbach, P.A., and Bard D. Rockenbach and
Nichole J. Segal (West Palm Beach); Schlesinger Law Offices,
P.A., and Jonathan R. Gdanski (Fort Lauderdale), for
& Spalding LLP, and William L. Durham II and Val Leppert
(Atlanta, Georgia), for appellee R.J. Reynolds Tobacco
Company; Arnold & Porter Kaye Scholer LLP, and Geoffrey
J. Michael (Washington, DC), for appellee Philip Morris USA
ROTHENBERG, C.J., and EMAS and LUCK, JJ.
plaintiff below, Jerry Feller ("Mr. Feller"), who
passed away while his Engle-progeny action was
pending, appeals the trial court's order: (1) granting
with prejudice the motion to dismiss sought by R.J. Reynolds
Tobacco Company ("R.J. Reynolds") and Philip Morris
USA, Inc. ("Philip Morris") (collectively,
"the tobacco companies") based on Mr. Feller's
counsel's failure to file a motion for substitution of
the proper party within ninety days after Mr. Feller's
death was suggested upon the record as required by Florida
Rule of Civil Procedure 1.260(a)(1); and (2) denying as moot the
second motion for substitution of a party, to change the
style of the case, and to amend the complaint ("the
second motion for substitution") filed by Mr.
Feller's counsel. For the reasons that follow, we
conclude that the trial court erred as a matter of law by
granting the tobacco companies' motion to dismiss with
prejudice as a motion for substitution was "made"
within ninety days after Mr. Feller's death was suggested
upon the record. Further, based on the reversal of the
portion of the order granting the motion to dismiss, the
motion for substitution is no longer moot, and therefore, we
also reverse the portion of the order denying the motion for
substitution as moot. Lastly, we remand with directions to
enter an order granting the second motion for substitution as
the motion seeks to substitute a proper party-the
administrator ad litem of Mr. Feller's estate. See
Metcalfe v. Lee, 952 So.2d 624, 630 (Fla. 4th DCA 2007)
(stating that "where a personal representative has been
appointed, he or she is most certainly a proper party"
under rule 1.260(a)(1)).
FACTS AND PROCEDURAL HISTORY
Feller filed an Engle-progeny case against the
tobacco companies. On April 30, 2015, while the case was
pending, Mr. Feller died, and his counsel notified the
tobacco companies of the death. An email dated May 4, 2015,
reflects that the parties acknowledged that a suggestion of
death had not been filed and agreed that the depositions of
Mr. Feller's son and wife, Linda Seltzer, would be
rescheduled following the appointment of the personal
representative of Mr. Feller's estate.
April 5, 2016, almost a year following Mr. Feller's
death, the trial court issued a notice of lack of prosecution
and set a hearing. In response, on April 8, 2016, Mr.
Feller's counsel filed a "Notice of Record Activity,
" which states, in part, as follows:
. . . . On April 30, 2015, the smoking Plaintiff Mr. Feller
passed away and as a result the Court vacated the trial
order. The process of opening Mr. Feller's estate has
been initiated but objections have been filed which
complicated and slowed the process. Plaintiff files this
notice of record activity to demonstrate to the Court that
this case should not be dismissed for failure to put forth
sufficient record activity. Plaintiff anticipates amending
the complaint to substitute the Estate of Mr. Feller as the
proper Plaintiff and thereafter proceeding to try this case.
the hearing on the notice of lack of prosecution, the trial
court ordered that Mr. Feller's case remain pending.
April 15, 2016, Mr. Feller's wife, Linda Seltzer, as
proposed personal representative of Mr. Feller's estate,
by and through Mr. Feller's counsel, filed a motion to
substitute a party, to change the style of the case, and to
amend the complaint ("initial motion for
substitution"). At the May 9, 2016 hearing on the
initial motion for substitution, the parties acknowledged
that Mr. Feller's widow had not yet been appointed as the
personal representative of her husband's estate because
objections to her appointment were filed by Mr. Feller's
adult children. The trial court ruled that, because Mr.
Feller's wife had not yet been appointed, the initial
motion for substitution was "futile, " and
therefore, it denied the motion without prejudice.
than three months later, on July 28, 2016, the Palm Beach
County probate court appointed Jami Huber, Esq. ("Ms.
Huber") as the administrator ad litem of Mr.
Feller's estate. On August 11, 2016, Ms. Huber, as the
personal representative of Mr. Feller's estate, filed the
second motion for substitution.
tobacco companies opposed the second motion for substitution,
arguing that the ninety-day period set forth in rule
1.260(a)(1) was triggered on April 8, 2016, when Mr.
Feller's counsel filed the notice of record activity,
which included "a statement of the fact" of Mr.
Feller's death. Thus, the tobacco companies argued that
because the second motion for substitution, which was filed
on August 11, 2016, was not filed within ninety days of the
notice of record activity, Mr. Feller's case should be
dismissed as no excusable neglect can be shown for failing to
file a timely motion for substitution. Mr. Feller's
counsel, however, contended that the ...