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


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



SANDRA MATTICK,                       )
                                      )
              Appellant,              )
                                      )
v.                                    )              Case No. 2D17-3645
                                      )
ERNIE LISCH, as attorney ad litem for )
the Estate of Ernie Conrads,          )
                                      )
              Appellee.               )
___________________________________)

Opinion filed November 2, 2018.

Appeal from the Circuit Court for Manatee
County; Gilbert A. Smith, Jr., Judge.

Susan J. Silverman, Sarasota; and Scott B.
Kallins of Kallins, Little & DelGado, P.A.,
Palmetto, for Appellant.

Kansas R. Gooden of Boyd & Jenerette,
P.A., Jacksonville; and Kevin D. Franz of
Boyd & Jenerette, P.A., Boca Raton, for
Appellee.


SILBERMAN, Judge.

             Sandra Mattick seeks review of a final defense judgment in her automobile

negligence action against Ernie Lisch, as attorney ad litem for the Estate of Ernie

Conrads. The trial court dismissed the case based on Mattick's failure to timely
substitute the estate as the party defendant. We reverse because the court should

have abated the action instead of dismissing the complaint.

              Mattick filed a complaint naming Ernie Conrads as a defendant in August

2014. While attempting to serve process, Mattick learned that Conrads had died.

Mattick obtained an order appointing an attorney ad litem for purposes of service. The

defense then filed a motion to dismiss for failure to name Conrads' estate as the proper

party. Mattick responded by filing a suggestion of death and a motion to substitute

Conrads' estate as a party. The parties later filed a stipulation for substitution of

attorney Ernie C. Lisch as attorney ad litem for the estate.

              Lisch filed an answer and affirmative defenses on behalf of the estate.

Nothing in that pleading indicated that the estate had not been opened. Over two years

later, Lisch filed a motion to dismiss for failure to substitute the estate as a defendant.

Lisch's attorney claimed she had been under the mistaken impression that Mattick had

opened an estate before Mattick filed the motion to substitute. Counsel asserted that

pursuant to Florida Rule of Civil Procedure 1.260, Mattick had ninety days from the date

she filed the suggestion of death in which to substitute the estate as a party. Counsel

argued that the trial court never obtained jurisdiction over the estate because the estate

had never been opened. At the hearing on the motion, Mattick's attorney said he

thought that Lisch was going to open the estate. Mattick's attorney also said that he

had begun the process of opening the estate and expected it to be completed by the

end of the next week. The trial court granted the motion to dismiss.

              Rule 1.260(a)(1) provides for the substitution of a party if the party dies

and the claim is not extinguished. The rule requires that a motion to substitute be made




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within ninety days of the suggestion of death on the record. If the motion to substitute is

not filed within ninety days, "the action shall be dismissed as to the deceased party." Id.

              There is no dispute that the motion to substitute was filed within ninety

days of the suggestion of death. Thus, rule 1.260(a)(1) did not provide a basis for

dismissal. See Stern v. Horwitz, 249 So. 3d 688 (Fla. 2d DCA 2018). Instead, the

action should have been abated until the estate or a proper legal representative had

been substituted. See Schaeffler v. Deych, 38 So. 3d 796, 799 (Fla. 4th DCA 2010);

Cope v. Waugh, 627 So. 2d 136, 136 (Fla. 1st DCA 1993); see also Floyd v. Wallace,

339 So. 2d 653, 654 (Fla. 1976). While Lisch was substituted for Conrad as attorney ad

litem for the estate, the parties concede that the estate was ultimately required to be

substituted as the party defendant.

              We recognize that the trial court had the authority to dismiss the complaint

as a sanction for dilatory conduct. See Fla. R. Civ. P. 1.420(b). However, the record

does not support a finding that Mattick's failure to open the estate was willful or

deliberate. See Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993). There was

confusion on both sides regarding which party was to open the estate. And Lisch had

filed an answer and affirmative defenses on behalf of the estate. Furthermore, Mattick

was in the process of opening the estate at the time the motion to dismiss was heard.

Under these circumstances, the court should have abated the action instead of

dismissing it. Accordingly, we reverse and remand for further proceedings.

              Reversed and remanded.



MORRIS and ATKINSON, JJ., Concur.




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