AUGUSTEN BONO AND DOROTHY BONO, HIS WIFE, APPELLANTS,
v.
W. NORMAN DUBREE ET AL., APPELLEES
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DAUKSCH, Judge.
On appeal is an Order of the trial court dismissing Plaintiff’s cause of action because of Plaintiff’s failure to comply with Fla.R.Civ.P. 1.260(a) by not moving for substitution of parties within ninety days of the filing of a suggestion of the death of the Defendant, W. Norman Dubree. The question of excusable neglect is a most troublesome area with which judges must deal. There are no guidelines for a trial judge to follow and in our perusal of the various cases we find appellate courts almost evenly divided on nearly the same circumstances. In this case we must agree with the Appellant that the neglect was excusable and therefore reverse the Order dismissing the cause of action with directions to permit the substitution of the deceased party and proceed to trial.
REVERSED with directions.
DOWNEY, J., concurs.
BURNSTEIN, MIETTE K., Associate Judge, dissents, with opinion.
BURNSTEIN, MIETTE K., Associate Judge,
dissenting:
I respectfully dissent.
In this case, despite what appears to be adequate office procedure, a suggestion of death was mislaid or erroneously misfiled. Some 123 days later (33 days after the expiration of the 90 day requirement of moving for the substitution of parties in accordance with Fla.R.Civ.P. 1.260[a]) the error was brought to the attention of the appellants. Appellants thereafter moved for an extension of the time in accordance with Fla.R.Civ.P. 1.090(b)(2) which Motion was denied and an Order entered dismissing Plaintiff’s cause of action.
Time requirements under 1.260(a) were set in motion by the appropriate filing of the suggestion of death. King v. Tyree’s of Tampa, Inc., 315 So. 2d 538 (Fla.2d DCA 1975). The question of excusable neglect for which time limitations may be extended is a matter within the sound discretion of the trial judge.
No abuse of such discretion was shown, therefore, I would affirm.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Adele Stroh v. Dudley, 476 So. 2d 230 (Fla. 4th DCA 1985)…on should be liberally interpreted and applied to allow substitution after 90 days upon a showing of excusable neglect, inadvertence or mistake. Provident Life and Accident Insurance Company v. Lebo, 355 So. 2d 195 (Fla.3d DCA 1978), Bono v. Dubree, 350 So. 2d 26 (Fla. 4th DCA 1977), and New Hampshire Insurance Company v. Kimbrell, 343 So. 2d 107 (Fla. 1st DCA 1977). The issue before us was recently examined in detail in Somero v. Hendry General Hospital, 467 So. 2d 1103 (Fla. 4th DCA 1985). As noted there,…
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Pearl v. Kelly, 442 So. 2d 1012 (Fla. 3d DCA 1983)…red. In this case we must agree with the appellant that there was excusable neglect and therefore we reverse the order dismissing the cause of action, with directions to permit substitution of the deceased party and proceed to trial. Bono v. Dubree, 350 So. 2d 26 (Fla. 4th DCA 1977). Reversed and remanded. . The rule states in relevant part: If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties ... Unless the motion for substitution is made withi…
Authorities Cited
- King v. Tyree's OF Tampa, Inc., 315 So. 2d 538 (Fla. 2d DCA 1975)