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Stern v. Horwitz

Florida Court of Appeals, Second District

May 30, 2018

MARK STERN, Appellant,
v.
HILLEL A. HORWITZ; PALM AIRE AT DESOTO LAKES COUNTRY CLUB CONDOMINIUM ASSOCIATION, INC.; and PROGRESSIVE COMMUNITY MANAGEMENT, Appellees.

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

          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. 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 ...

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