FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Manatee County; Gilbert A. Smith,
J. Silverman, Sarasota, for Appellant.
E. Ettaro, Jeffrey A. Caglianone, and David R. Reed of
Caglianone & Miller, P.A., Tampa, for Appellee Hillel A.
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.
appearance for remaining Appellees.
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.
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
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.
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.
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).
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 ...