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Martin v. Hacsi

8/5/2005

Cynthia Martin appeals the dismissal of her personal injury action against Henry Hacsi, who died after Martin filed her complaint. The attorney of record representing Hacsi before his death initiated the dismissal by filing a motion for enforcement of Florida Rule of Civil Procedure 1.260(a) when Martin failed to move to substitute a party defendant within 90 days after a suggestion of death was filed by the attorney. In ordering the dismissal of the action, the trial court rejected Martin's attack on the validity of the suggestion of death and her argument that she should be granted an enlargement of time in which to substitute a party defendant based upon excusable neglect. We affirm.


Florida Rule of Civil Procedure 1.260(a)(1) mandates dismissal of an action when, after the death of a party, a motion for substitution is not made within 90 days after the death is suggested on the record:


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 fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party. (Emphasis added). It is uncontroverted in the instant case that neither a motion for substitution of a party defendant nor a timely motion for enlargement of time to make such a motion was made. In fact, it was only after she received the motion to dismiss that Martin wrote to Hacsi's attorney asking for the name of the personal representative of Hacsi's estate. Martin also filed an untimely motion asking for an order substituting an "unknown, unnamed personal representative or administrator" for the decedent. Hacsi's attorney responded that the decedent's daughter would be appointed in the near future as the personal representative. The record before us does not reflect whether any fiduciary was appointed, although Martin later filed an amended motion naming the decedent's daughter as the person to be substituted since she "has or will be appointed in the near future as personal representative . . . ."


Martin argues that the suggestion of death filed by Hacsi's attorney was a nullity because it failed to specify a person to be substituted. Florida Rule of Civil Procedure 1.260(a)(1) does not require that a suggestion of death contain anything other than the fact of death. There is no requirement that a suggestion of death contain the name of the person who will be substituted as a party for the decedent. See Vera v. Adeland, 881 So. 2d 707, 709 (Fla. 3d DCA 2004) ("The rule does not spell out any specific requirements for the content of the suggestion of death, and we decline to add requirements that are not stated in the rule."); New Hampshire Ins. Co. v. Kimbrell, 343 So. 2d 107, 109 (Fla. 1st DCA 1977) (holding that suggestion of death that did not specify the person available to be substituted was adequate under rule 1.260 to trigger the running of the 90-day period; noting, "Rule 1.260 requires only that a party's death be 'suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion . . . .'"); King v. Tyree's of Tampa, Inc., 315 So. 2d 538 (Fla. 2d DCA 1975) (rejecting argument that because the suggestion of death did not specify the name of a person who was e

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