       Third District Court of Appeal
                               State of Florida

                         Opinion filed February 14, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2389
                         Lower Tribunal No. 14-13463
                             ________________


                                 Jerry Feller,
                                    Appellant,

                                        vs.

             R.J. Reynolds Tobacco Company, etc., et al.,
                                    Appellees.



      An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.

      Burlington & Rockenbach, P.A., and Bard D. Rockenbach and Nichole J.
Segal (West Palm Beach); Schlesinger Law Offices, P.A., and Jonathan R.
Gdanski (Fort Lauderdale), for appellant.

      King & Spalding LLP, and William L. Durham II and Val Leppert (Atlanta,
Georgia), for appellee R.J. Reynolds Tobacco Company; Arnold & Porter Kaye
Scholer LLP, and Geoffrey J. Michael (Washington, DC), for appellee Philip
Morris USA Inc.


Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
         ROTHENBERG, C.J.

         The plaintiff below, Jerry Feller (“Mr. Feller”), who passed away while his

Engle-progeny1 action was pending, appeals the trial court’s order: (1) granting

with prejudice the motion to dismiss sought by R.J. Reynolds Tobacco Company

(“R.J. Reynolds”) and Philip Morris USA, Inc. (“Philip Morris”) (collectively, “the

tobacco companies”) based on Mr. Feller’s counsel’s failure to file a motion for

substitution of the proper party within ninety days after Mr. Feller’s death was

suggested upon the record as required by Florida Rule of Civil Procedure

1.260(a)(1);2 and (2) denying as moot the second motion for substitution of a

party, to change the style of the case, and to amend the complaint (“the second

motion for substitution”) filed by Mr. Feller’s counsel. For the reasons that follow,

we conclude that the trial court erred as a matter of law by granting the tobacco

companies’ motion to dismiss with prejudice as a motion for substitution was


1   Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
2   Rule 1.260(a)(1) provides in full as follows:
               (a) Death.
               (1) 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.
                                             2
“made” within ninety days after Mr. Feller’s death was suggested upon the record.

Further, based on the reversal of the portion of the order granting the motion to

dismiss, the motion for substitution is no longer moot, and therefore, we also

reverse the portion of the order denying the motion for substitution as moot.

Lastly, we remand with directions to enter an order granting the second motion for

substitution as the motion seeks to substitute a proper party—the administrator ad

litem of Mr. Feller’s estate. See Metcalfe v. Lee, 952 So. 2d 624, 630 (Fla. 4th

DCA 2007) (stating that “where a personal representative has been appointed, he

or she is most certainly a proper party” under rule 1.260(a)(1)).

                   I. FACTS AND PROCEDURAL HISTORY

       Mr. Feller filed an Engle-progeny case against the tobacco companies. On

April 30, 2015, while the case was pending, Mr. Feller died, and his counsel

notified the tobacco companies of the death. An email dated May 4, 2015, reflects

that the parties acknowledged that a suggestion of death had not been filed and

agreed that the depositions of Mr. Feller’s son and wife, Linda Seltzer, would be

rescheduled following the appointment of the personal representative of Mr.

Feller’s estate.

       On April 5, 2016, almost a year following Mr. Feller’s death, the trial court

issued a notice of lack of prosecution and set a hearing. In response, on April 8,

2016, Mr. Feller’s counsel filed a “Notice of Record Activity,” which states, in

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part, as follows:

       . . . . On April 30, 2015, the smoking Plaintiff Mr. Feller passed
      away and as a result the Court vacated the trial order. The process of
      opening Mr. Feller’s estate has been initiated but objections have been
      filed which complicated and slowed the process. Plaintiff files this
      notice of record activity to demonstrate to the Court that this case
      should not be dismissed for failure to put forth sufficient record
      activity. Plaintiff anticipates amending the complaint to substitute the
      Estate of Mr. Feller as the proper Plaintiff and thereafter proceeding to
      try this case.

Following the hearing on the notice of lack of prosecution, the trial court ordered

that Mr. Feller’s case remain pending.

      On April 15, 2016, Mr. Feller’s wife, Linda Seltzer, as proposed personal

representative of Mr. Feller’s estate, by and through Mr. Feller’s counsel, filed a

motion to substitute a party, to change the style of the case, and to amend the

complaint (“initial motion for substitution”). At the May 9, 2016 hearing on the

initial motion for substitution, the parties acknowledged that Mr. Feller’s widow

had not yet been appointed as the personal representative of her husband’s estate

because objections to her appointment were filed by Mr. Feller’s adult children.

The trial court ruled that, because Mr. Feller’s wife had not yet been appointed, the

initial motion for substitution was “futile,” and therefore, it denied the motion

without prejudice.

      More than three months later, on July 28, 2016, the Palm Beach County

probate court appointed Jami Huber, Esq. (“Ms. Huber”) as the administrator ad

                                         4
litem of Mr. Feller’s estate. On August 11, 2016, Ms. Huber, as the personal

representative of Mr. Feller’s estate, filed the second motion for substitution.

      The tobacco companies opposed the second motion for substitution, arguing

that the ninety-day period set forth in rule 1.260(a)(1) was triggered on April 8,

2016, when Mr. Feller’s counsel filed the notice of record activity, which included

“a statement of the fact” of Mr. Feller’s death. Thus, the tobacco companies argued

that because the second motion for substitution, which was filed on August 11,

2016, was not filed within ninety days of the notice of record activity, Mr. Feller’s

case should be dismissed as no excusable neglect can be shown for failing to file a

timely motion for substitution. Mr. Feller’s counsel, however, contended that the

notice of record activity did not constitute a suggestion of death upon the record,

and therefore, the ninety-day period set forth in rule 1.260(a)(1) had not been

triggered.

      Following a hearing, the trial court dismissed Mr. Feller’s action with

prejudice pursuant to rule 1.260 and denied as moot Mr. Feller’s counsel’s second

motion for substitution. Mr. Feller’s appeal followed.

                                  II. ANALYSIS

     We review the trial court’s order granting the tobacco companies’ motion to

dismiss de novo. See Northrop Grumman Sys. Corp. v. Britt, 226 So. 3d 1059,

1064 (Fla. 3d DCA 2017) (holding that the defendant’s argument that a motion for

                                          5
substitution following the plaintiff’s death was untimely “involves the application

of Florida Rule of Civil Procedure 1.260(a)(1), presents a pure question of law, and

is thus reviewed de novo”); Metcalfe, 952 So. 2d at 626 (holding that the dismissal

of a complaint pursuant to Florida Rule of Civil Procedure 1.260 is reviewed de

novo).

A. Whether the ninety-day period set forth in rule 1.260(a)(1) was triggered

      In addressing whether the trial court erred by granting the tobacco

companies’ motion to dismiss, we first address whether the ninety-day period set

forth in rule 1.260(a)(1) was triggered.      As this Court recently explained in

Northrop Grumman:

      The “statement of the fact of the death” must be both (a) filed with the
      clerk of court for docketing to make it part of the official record in the
      case, and (b) “served” pursuant to Florida Rule of Judicial
      Administration 2.516(d), which in turn includes the requirement for
      the document to be “filed with the court.”

Northrop Grumman, 226 So. 3d at 1064-65 (footnote omitted).

      In the instant case, the trial court concluded that Mr. Feller’s counsel’s

notice of record activity, which was both served on the tobacco companies and

filed with the clerk of the court on April 8, 2016, constitutes a suggestion of death

upon the record because it contained a “statement of the fact of the death” of Mr.

Feller, thereby triggering the ninety-day period set forth in rule 1.260(a)(1). Mr.

Feller’s counsel, however, argues that the notice of record activity did not

                                          6
constitute a sufficient and “formal” suggestion of death upon the record because

the notice of record activity was filed merely to explain to the trial court why Mr.

Feller’s action should not be dismissed for lack of prosecution.

      We, however, need not determine whether the notice of record activity filed

by Mr. Feller’s counsel constituted a suggestion of death because we find the

initial motion for substitution filed by Mr. Feller’s counsel, which was served on

the tobacco companies and filed with the clerk of the court one week later on April

15, 2016, clearly qualifies as a suggestion of death upon the record, thereby

triggering the ninety-day period.3 See Northrop Grumman, 226 So. 3d at 1065

(holding that the ninety-day period set forth in rule 1.260(a)(1) was commenced on

the date a motion for substitution, which included a statement of the fact of a

party’s death, was served on the parties and filed with the clerk of the court).

      We reject Mr. Feller’s counsel’s argument that the April 15, 2016 motion for

substitution did not trigger the ninety-day period set forth in rule 1.260(a)(1)

because it was not formally styled as a “suggestion of death.”          As we have

previously held, “[t]he 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.” Vera v. Adeland, 881 So. 2d 707, 709 (Fla. 3d DCA 2004). All


3 The seven-day difference between the serving of the notice of record activity and
the serving of the initial motion for substitution does not affect this Court’s
analysis.
                                        7
that is required is that the notice contain sufficient information necessary for any

other party to move for substitution. Id. at 709-10; see also Martin v. Hacsi, 909

So. 2d 935, 936 (Fla. 5th DCA 2005) (holding that the suggestion of death need

not contain anything other than the fact of death).

      The April 15, 2016 motion for substitution satisfied the suggestion of death

requirement of rule 1.260(a)(1) because it was specifically filed pursuant to rule

1.260(a)(1) and stated that the plaintiff, Jerry Feller, had died on April 30, 2015,

and as a result, Linda Seltzer, Mr. Feller’s wife, was seeking to be appointed as the

personal representative of Mr. Feller’s estate and to be substituted as the plaintiff

in the lawsuit against the tobacco companies.

      We, therefore, conclude that the ninety-day period set forth in rule

1.260(a)(1) was triggered on April 15, 2016, and thus, the ninety-day period ended

on July 14, 2016.

B. Whether the ninety-day period was extinguished by the filing of the initial
   motion for substitution

      Next, we address the trial court’s dismissal of the plaintiff’s action, which

was based on the trial court’s determination that a sufficient motion for substitution

was not filed within the ninety-day period. As stated above, the ninety-day period

ended on July 14, 2016. In the instant case, two separate motions for substitution

were served and filed by Mr. Feller’s counsel:           (1) the initial motion for

substitution on April 15, 2016, which was within the ninety-day period, and (2) the
                                          8
second motion for substitution on August 11, 2016, which was outside of the

ninety-day period. Thus, our focus is on the initial motion for substitution.

      Rule 1.260(a)(1) provides 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 fact of the
      death in the manner provided for the service of the motion, the action
      shall be dismissed as to the deceased party.

      There is no dispute that Mr. Feller’s counsel timely filed a motion for

substitution. The tobacco companies, however, argue that, because the motion for

substitution sought to substitute Mr. Feller’s wife, Ms. Seltzer, and Ms. Seltzer had

not been appointed as the personal representative of the estate and was not

subsequently appointed, Ms. Seltzer was not a “proper party,” and because she was

not a “proper party,” the initial motion for substitution filed within the ninety-day

period did not satisfy the requirements of rule 1.260(a)(1), thus requiring dismissal

of Mr. Feller’s lawsuit against the tobacco companies. The rule, however, does not

require that the motion for substitution be made by the “proper party” to be

substituted in order to satisfy the requirement that a motion for substitution be

made within ninety days after the death is suggested upon the record. Rather, it

only requires that a motion for substitution be “made” within ninety days by “any
                                          9
party or by the successors or representatives of the deceased party.” See Metcalfe,

952 So. 2d at 628-29.

      In Metcalfe, Barbara Metcalfe had filed a medical malpractice action against

Dr. Lee and Dr. Pinsky. Id. at 626. Following Ms. Metcalfe’s death, Dr. Lee’s

counsel filed and served a suggestion of death on Ms. Metcalfe’s counsel on May

9, 2005, and therefore, the ninety-day period for filing a motion for substitution

under rule 1.260(a)(1) expired on August 8, 2005. Id. On June 30, 2005, Ms.

Metcalfe’s counsel served a motion for substitution, indicating that Ms. Metcalfe’s

estate was “currently being set up” and the estate was seeking to appoint Ms.

Metcalfe’s son as the estate’s personal representative, and counsel was requesting

that Ms. Metcalfe’s son, as personal representative of Ms. Metcalfe’s estate, be

substituted as the plaintiff in the malpractice action. On August 10, 2005, Dr.

Pinsky, who was later joined by Dr. Lee, moved to dismiss Ms. Metcalfe’s

malpractice action, asserting that the ninety-day period for substitution had expired

on August 8, 2005, and because Ms. Metcalfe had failed to substitute the personal

representative prior to the expiration of the ninety-day period, the malpractice

action must be dismissed. Id. at 626-27.

      The trial court agreed with the defendant doctors and thereafter entered an

order denying the motion for substitution and granting the doctors’ motion to

dismiss, finding that because no personal representative had yet been appointed,

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the motion for substitution “was not filed by a party with appropriate standing to

bring such a motion within 90 days from the date.” Id. at 627. Additionally, the

trial court found that, although Ms. Metcalfe moved ore tenus for an extension of

time at the August 22, 2005 hearing, because she had not moved for an extension

of time to accomplish the appointment of a personal representative prior to the

hearing and because her failure to do so did not constitute excusable neglect,

dismissal of the malpractice lawsuit was required. Id.

      On appeal, the Fourth District, when addressing a motion for substitution

under rule 1.260(a)(1), held that substitution “may be made by any party or by the

successors or representatives of the deceased party.” Id. at 628 (quoting rule

1.260(a)(1)).   “A plain reading of the rule reveals that nowhere does it state that

the motion for substitution must be made by the appointed personal

representative.” Id. at 628.

      More importantly, the Fourth District agreed with the Fifth District Court of

Appeal’s decision in Eusepi v. Magruder Eye Institute, 937 So. 2d 795, 798 (Fla.

5th DCA 2006), which held that the language of rule 1.260 “is clear about what

can authorize dismissal under the rule: failure to make the motion for substitution

within ninety days.” Thus, The Fourth District concluded that because the motion

for substitution was timely “made,” dismissal of the action was inappropriate. Id.

at 629-30. The Fourth District noted that “[o]nce the motion [for substitution] and

                                         11
notice of hearing are timely made, the ninety-day expiration period is

extinguished, and it is then up to the trial court to decide whether there is a proper

party to be substituted during the mandated hearing on the motion.” Metcalfe, 952

So. 2d at 630 (emphasis added). The Fourth District further clarified as follows:

      We note that if a plaintiff attempts to substitute an improper party,
      then a court can deny the motion for substitution. Or, if the motion is
      granted and it is later discovered that an improper party has been
      substituted, that party may be dropped upon the motion of a party or
      by order of the court on its own initiative. See Fla. R. Civ. P.
      1.250(b), 1.420(a)(2). Under both scenarios, however, the action
      would abate until the party’s estate, or other appropriate legal
      representative, has been substituted. See Cope v. Waugh, 627 So. 2d
      136, 136 (Fla. 1st DCA 1993) (“Upon the death of an indispensable
      party, the action abates until the deceased party’s estate, or other
      appropriate representative, has been substituted pursuant to rule
      1.260(a)(1).”). However, as we already stated, once a party,
      successor, or representative of the deceased files or serves the
      motion [for substitution] along with the corresponding notice of
      hearing within the required ninety-day time period, dismissal is
      no longer the appropriate remedy pursuant to rule 1.260.

Id. at 629 n.2 (emphasis added).

      As in Metcalfe, we conclude that, because the initial motion for substitution

in the instant case was “made” within ninety days after the death of Mr. Feller was

suggested upon the record, the ninety-day expiration period was “extinguished.”

Thus, dismissal of the action was no longer appropriate under rule 1.260(a)(1).

Accordingly, we reverse the trial court’s order dismissing Mr. Feller’s action

against the tobacco companies.

      Based on the reversal of the order dismissing Mr. Feller’s action, the second
                                         12
motion for substitution is not moot and, therefore, we also reverse the denial of the

second motion for substitution. Upon remand, we direct the trial court to enter an

order granting the second motion for substitution as the motion seeks to substitute

a proper party—the administrator ad litem of Mr. Feller’s estate.

                               III. CONCLUSION

      Based on the above analysis, we conclude that: (1) Mr. Feller’s death was

suggested upon the record, thus triggering the ninety-day period set forth in rule

1.260(a)(1), and (2) because the initial motion for substitution was “made” within

ninety days after Mr. Feller’s death was suggested upon the record, the ninety-day

expiration period was extinguished. Thus, as a matter of law, the trial court erred

by granting the tobacco companies’ motion to dismiss because dismissal was no

longer an option under rule 1.260(a)(1). Accordingly, we reverse the order under

review and remand to the trial court with directions to enter an order granting the

second motion for substitution.

      As we have concluded that the trial court erred by granting the tobacco

companies’ motion to dismiss, we need not address the remaining arguments raised

by Mr. Feller.

      Reversed and remanded with directions.




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