Professional Documents
Culture Documents
, 2007)
In this consolidated appeal, Barbara Ann On June 30, 2005, Caulfield served a
Metcalfe challenges an order dismissing her "Plaintiff's Motion for Substitution," asserting
medical malpractice suit against defendants that "[a]n estate for Ms. Metcalfe is currently
Dr. Spencer Lee and Mark A. Pinsky, M.D., being set up by the Law Offices of Joseph
P.A., as a consequence of the failure to Pippen, estate counsel for Plaintiff" and that
comply with Florida Rule of Civil Procedure "Plaintiff is in the process of probating
1.260 and timely substitute a personal Plaintiff's estate and is seeking the
representative as plaintiff in the suit following appointment of Robert D. Metcalfe, III, as
Metcalfe's death. Metcalfe also challenges the Personal Representative of the estate" and
subsequent order denying her 1.540(b) requesting that the court enter an order
motion to set aside the dismissal. Since the substituting Robert D. Metcalfe, III, as
issues raised pertain to the proper Personal Representative of the Estate of
construction to be afforded a Florida Rule of Barbara Ann Metcalfe, as the plaintiff in the
Civil Procedure, the standard of review is de malpractice suit. When counsel for the
novo. See, e.g., Saia Motor Freight Line, Inc. defendants declined to stipulate to the
v. Reid, 930 So.2d 598, 599 (Fla. 2006). substitution, the motion was set for hearing
on August 22, 2005.
The plaintiff/appellant contends that the
language of the rule simply requires that the Defendants' Motion to Dismiss for
motion for substitution be made within Failure to Substitute Parties
ninety days, not that the actual appointment
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Metcalfe v. Lee, 952 So.2d 624 (Fla. App., 2007)
[T]he Motion for Substitution was not Florida Rule of Civil Procedure 1.260(a)
filed by a party with appropriate standing to
bring such a motion within 90 days from the Florida Rule of Civil Procedure 1.260(a)
date on which the Suggestion of Death [was provides in relevant part:
served], since a personal representative had
not yet been appointed and counsel for the (1) If a party dies and the claim is not
Plaintiff provided no authority for the Court thereby extinguished, the court may order
to consider. substitution of the proper parties. The motion
for substitution may be made by any party or
The court also found that no request for by the successors or representatives of the
extension of time to accomplish the deceased party and, together with the
appointment of the personal representative
was made until plaintiff's ore tenus motion at notice of hearing, shall be served on all
the August 22nd hearing—after the expiration parties as provided in rule 1.080 and upon
of the ninety days—and that the evidence persons not parties in the manner provided
established ignorance of the law and for the service of a summons. Unless the
negligence on the part of plaintiff's counsel, motion for substitution is made within 90
but not excusable neglect. days after the death is suggested upon the
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Metcalfe v. Lee, 952 So.2d 624 (Fla. App., 2007)
record by service of a statement of the fact of Salamon, 923 So.2d 363, 367 (Fla. 2005)
the death in the manner provided for the (interpreting rule 1.420(e) "by its plain
service of the motion, the action shall be meaning" to "further the purpose of
dismissed as to the deceased party. decreasing litigation over the purpose of the
rule and fostering the smooth administration
Principles of Statutory Construction of the trial court's docket"); Lamb v.
Applicable to the Florida Rules of Civil Matetzschk, 906 So.2d 1037 (Fla. 2005)
Procedure (adopting a bright line rule concerning the
form of a rule 1.442 proposal for settlement).
It is well-settled that the Florida Rules of
Civil Procedure are construed in accordance Standing to File the Motion for
with the principles of statutory Substitution
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Metcalfe v. Lee, 952 So.2d 624 (Fla. App., 2007)
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Metcalfe v. Lee, 952 So.2d 624 (Fla. App., 2007)
[952 So.2d 630] 1. This rule also requires that "[a]ll original
papers shall be filed with the court either
the motion for substitution was timely made, before service or immediately thereafter." Fla.
the trial court erred in dismissing the action. R. Civ. P. 1.080(d).
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Notes:
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