Second District Court Of Appeals Interprets Rule 1.260

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In Stern v. Horwitz, the Second District Court of Appeals reversed the dismissal of Stern’s negligence cause of action because Florida Rule of Civil Procedure 1.260(a) is clear and unambiguous on its face and does not require dismissal when notice of hearing is not served contemporaneously with the motion for substitution.

On February 16, 2011, Mr. Stern filed a complaint against Mr. Horwitz, alleging that Mr. Horwitz 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 filed a motion to substitute Mr. Horwitz with a personal representative of his 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.

Mr. Horwitz’s attorney filed a motion to dismiss alleging that dismissal was mandated because notice of hearing was neither filed with the motion to substitute nor within ninety days of the filing of the suggestion of death.  The trial court relying on Metcalfe v. Lee, granted the dismissal.  However, the appellate refused to rely on Metcalfe.

The appellate court then examined rule 1.260(a)(1) stating that the first sentence authorizes a court to order substitution of the proper parties in the event a party dies and the claim is not extinguished.  The second sentence of the rule allowed any party or successor or representative of the deceased party to move to substitute the proper party for the deceased person.  If such a motion is made the rule requires the motion for substitution and a notice of hearing be served on all parties in accordance with rule 1.080.

The third sentence of rule 1.260(a)(1) provided grounds for dismissal of a cause of action against a deceased party.  The rule states that the action shall be dismissed as to the deceased party if no motion for substitution is made within ninety days of a party’s death suggested on the record.  The court stated that dismissal is not warranted if two things occur: “the party’s death is suggested upon the record and the motion for substitution is filed or served within ninety days of the suggestion of death.”  The appellate court also noted that the third sentence omits any mention of serving a notice of hearing.

The Court went on to distinguish a notice of hearing from a motion for substitution, stating that a substitution motion is concerned with replacing a deceased party with a property party to preserve meritorious actions.  But a notice of hearing on a substitution is motion is concerned primarily with safeguarding the due process rights of the affected parties—once the proper party exists.

The appellate court went on to state that Mr. Stern filed the substitution motion ten days after the suggestion of death was filed—well within the ninety-day period.  Thus, the trial court erred in dismissing the complaint.  Further, the court went on to say that reliance on Metcalfe was misplaced.  Although that court did interpret rule 1.260, it was short-lived, because Scott v. Morris stated rule 1.260 required only that the substitution motion be made within ninety days.  989 So. 2d 36, 37 n.1 (Fla. 4th DCA 2008).

Therefore, under 1.260, dismissal is only mandated when a party does not file a motion for substitution within ninety days of the party’s death is suggested on the record.

Citation:  Stern v. Horwitz, No. 2D17-3044 (Fla. 2d DCA filed May 30, 2018).

(This was prepared by Bryan Siddique. For more information, please contact Bryan at