Third District Court of Appeal
State of Florida
Opinion filed June 6, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-150
Lower Tribunal No. 15-17377
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Gian Franco Martinez, etc.,
Appellant,
vs.
Juan Fernandez-Uriate,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Bernard S.
Shapiro, Judge.
Hasbun & Mendoza, PLLC, and Maribel Mendoza, for appellant.
Perez-Abreu & Martin-Lavielle, P.A., Andy W. Acosta and Javier Perez-
Abreu, for appellee.
Before SALTER, FERNANDEZ and SCALES, JJ.
FERNANDEZ, J.
Gian Franco Martinez (“Appellant”), as personal representative of the estate
of Helen Doris Fernandez (the deceased former “Wife”), appeals the lower court’s
December 14, 2016 order of dismissal for lack of prosecution and the trial court’s
determination that the Wife’s counsel failed to timely move for a substitution of
party in accordance with Florida Rule of Civil Procedure 1.260(a)(1). On July 10,
2015, the Wife filed a Petition for Dissolution of Marriage and Other Relief
Without Dependent or Minor Children. On October 5, 2015, the Wife passed away.
On October 10, 2016, Juan Fernandez-Uriate (“Appellee” and the former
husband) filed a Notice of Lack of Prosecution. On November 16, 2016, the
Wife’s counsel simultaneously filed a suggestion of death and a motion for
substitution of party seeking to substitute Appellant in her stead. The lower court
entered its dismissal order on December 15, 2016. This appeal followed.
Appellant argues the trial court erred in dismissing the cause. We agree and
reverse.
First, the lower court erred in dismissing the cause for failure to timely move
for substitution. Florida Rule of Civil Procedure 1.260(a)(1) provides a 90-day
period for filing a motion for substitution, after a suggestion of death is both filed
on the record and served pursuant to Florida Rule of Judicial Administration 2.516.
Feller v. R.J. Reynolds Tobacco Co., No. 3D16-2389, 43 Fla. L. Weekly D392, *3
(Fla. 3d DCA February 14, 2018) (internal citations omitted). Here, the suggestion
of death and motion for substitution were filed and served on the same day, and
thus the motion for substitution was filed within the applicable 90-day period.
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Therefore, there can be no dispute that the motion for substitution was timely filed
and rule 1.260(a)(1) cannot be a basis for dismissal.
Second, the lower court erred in dismissing the cause for lack of
prosecution. Florida Rule of Civil Procedure 1.420(e) provides that after a
compliant service of notice of no record activity, if “no record activity occurs
within the 60 days immediately following the service of such notice, and if no stay
was issued . . . the action shall be dismissed.” Here, record activity occurred
within the 60 days immediately following the service of the Notice of Lack of
Prosecution. Therefore, rule 1.420(e) cannot be a basis for dismissal.
For the foregoing reasons, the lower court’s December 15, 2016 dismissal
order is reversed and the cause is remanded for further proceedings.
Reversed and remanded.
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