TRIAL COURT ERRED IN DISMISSING COMPLAINT BASED ON FINDING THAT PLAINTIFF HAD FAILED TO FILE A MOTION FOR SUBSTITUTION WITHIN 90 DAYS OF SUGGESTION OF DEATH FILED BY DEFENSE COUNSEL.

TRIAL COURT ERRED IN DISMISSING COMPLAINT BASED ON FINDING THAT PLAINTIFF HAD FAILED TO FILE A MOTION FOR SUBSTITUTION WITHIN 90 DAYS OF SUGGESTION OF DEATH FILED BY DEFENSE COUNSEL – – PLAINTIFF’S MOTION TO APPOINT A GUARDIAN AD LITEM, AN ADMINISTRATOR AD LITEM, AND AN ATTORNEY AT LITEM TO REPRESENT THE DEFENDANT’S INTEREST FILED WITHIN 90 DAYS FROM THE SUGGESTION OF DEATH, AMOUNTED TO A MOTION FOR SUBSTITUTION UNDER RULE 1.260(A)(1)

Green v. Polukoff, 49 Fla. L. Weekly D195 (Fla. 4^th DCA Jan. 19, 2024):

The plaintiff took all the proper steps to suggest the defendant’s death on the record. Simply failing to title it as a “motion for substitution” did not make it legally infirm. The plaintiff had made it clear that the motion seeking to have the trial court appoint a guardian ad litem, an administrator ad litem and an attorney ad litem was being made to Florida Rule 1.260.

Because the motion was filed within 90 days of the defendant’s suggestion of death, the trial court could not dismiss the plaintiff’s complaint with prejudice, necessitating reversal.

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