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Feller v. R.J. Reynolds Tobacco Co.

Florida Court of Appeals, Third District

February 14, 2018

Jerry Feller, Appellant,
v.
R.J. Reynolds Tobacco Company, etc., et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

         An 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 appellant.

          King & 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 Inc.

          Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.

          ROTHENBERG, C.J.

         The plaintiff below, Jerry Feller ("Mr. Feller"), who passed away while his Engle-progeny[1] 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);[2] 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)).

         I. FACTS AND PROCEDURAL HISTORY

         Mr. 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.

         On 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.

         Following the hearing on the notice of lack of prosecution, the trial court ordered that Mr. Feller's case remain pending.

         On 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.

         More 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.

         The 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 ...


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