SANDRA MATTICK v. ERNIE C. LISCH AS ATTORNEY AD LITEM FOR THE ESTATE OF ERNIE CONRADS ( 2018 )

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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