Opinion
No. 76-1144.
September 20, 1977.
Appeal from the Circuit Court for Palm Beach County, Vaughn J. Rudnick, J.
John T. Christiansen of Sales Christiansen, Palm Beach, for appellants.
Frank W. Weathers, Jr., and Jonathan D. Schumann of Weathers Narkier, P.A., West Palm Beach, for appellees.
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.
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.