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Martin v. Hacsi8/5/2005
ligible to be appointed as successor, the trial court's dismissal should be reversed). If a party is unable to procure substitution of the proper party within the 90 days, he or she may move for an enlargement of the period under Florida Rule of Civil Procedure 1.090(b). Relief may also be available under Florida Rule of Civil Procedure 1.540(b) on a showing of excusable neglect. E.g., Nationwide Mutual Fire Insurance Co. v. Holmes, 352 So. 2d 1233, 1234 (Fla. 4th DCA 1977). As mentioned earlier, neither course of relief was sought by Martin in the instant case.
Alternatively, Martin argues that Hacsi's attorney had no authority to file a motion to dismiss after his client's death and before any party was substituted for the decedent. This argument was rejected in Scutieri v. Miller, 584 So. 2d 15 (Fla. 3d DCA 1991). We further note that if the attorney for a party, who dies during the course of litigation, were not allowed to file a motion to dismiss in the absence of a timely motion for substitution of a party until a party had been substituted, then dismissal could never occur and the rule would be meaningless.
Lastly, Martin argues that the trial court abused its discretion by failing to enlarge the time within which to substitute a party defendant for excusable neglect when there were "obvious difficulties" in obtaining the appointment of a personal representative. The record does not reflect any such difficulties; it reflects only that during the 90-day time frame of rule 1.260(a)(1), Martin did absolutely nothing in the case and made no contact with Hacsi's attorney. Only after the 90 days had expired and after Hacsi's attorney had filed the motion to dismiss did Martin inquire as to the identity of the personal representative. Martin did not move for an extension of time until more than five months after the 90-day period had expired, and even when she did finally move, the only fact identified as exhibiting excusable neglect was that she had been under the conception and belief that Hacsi's attorney would advise her when an estate was opened and who the personal representative was so that she could move to substitute parties per rule 1.260(a)(1), and that she did not believe that she could move to substitute parties until a personal representative had been appointed.
Section 49.071, Florida Statutes, "Sworn statement, unknown parties as defendants," and section 49.08, Florida Statutes, "Notice of action, form," provide for constructive service of process on unknown defendants. These statutes allow for suit against unnamed defendants contingent upon a plaintiff making a diligent search and inquiry as to the proper party. Accordingly, the absence of a known personal representative was no excuse for not filing a timely motion to substitute. Martin, however, did not even inquire within the 90 days as to whether a personal representative had been appointed. Inactivity is not excusable neglect. See, e.g., Kash N' Karry Food Stores, Inc. v. Smart, 814 So. 2d 530 (Fla. 2d DCA 2002).
AFFIRMED.
PLEUS, C.J., and ORFINGER, J., concur.
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