Metcalfe v. Lee

• Decision Date: 04 April 2007
• Docket Number: No. 4D05-4033.,No. 4D06-1582.,4D05-4033.,4D06-1582.
• Citation: 952 So.2d 624
• Parties: Barbara Ann METCALFE, Appellant, v. Spencer LEE, M.D. and Mark A. Pinsky, M.D., P.A., Appellees.
• Court: Florida District Court of Appeals

952 So.2d 624

Barbara Ann METCALFE, Appellant, v.Spencer LEE, M.D. and Mark A. Pinsky, M.D., P.A., Appellees.

No. 4D05-4033.

No. 4D06-1582.

District Court of Appeal of Florida, Fourth District.

April 4, 2007.

Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, and Bryan D. Caulfield of Perenich, Carroll, Perenich, Avril, Caulfield & Noyes, P.A., Clearwater, for appellant.

Dinah Stein and Mark Hicks of Hicks & Kneale, P.A., Miami, Coel & Warren, P.L., Boca Raton, and Adams, Coogler, Watson, Merkel, Barry & Kellner, P.A., West Palm Beach, for appellees.

REYES, ISRAEL U., Associate Judge.

INTRODUCTION

In this consolidated appeal, Barbara Ann Metcalfe challenges an order dismissing her medical malpractice suit against defendantsDr. Spencer Lee and Mark A. Pinsky, M.D., P.A., as a consequence of the failure to comply with Florida Rule of Civil Procedure 1.260 and timely substitute a personal representative as plaintiff in the suit following Metcalfe's death.Metcalfe also challenges the subsequent order denying her 1.540(b)motion to set aside the dismissal.Since the issues raised pertain to the proper construction to be afforded a Florida Rule of Civil Procedure, the standard of review is de novo.See, e.g., Saia Motor Freight Line, Inc. v. Reid,930 So.2d 598, 599(Fla.2006).

The plaintiff/appellant contends that the language of the rule simply requires that the motion for substitution be made within ninety days, not that the actual appointment of the personal representative and the substitution occur within ninety days.The plaintiff/appellant also argues that the language of the rule permits counsel for the deceased plaintiff to file the motion for substitution.We agree as to both contentions.The rule authorizes dismissal only when there is a failure to make the motion for substitution within ninety days.Accordingly, we reverse and remand for further proceedings.

PROCEDURAL HISTORY

Barbara A. Metcalfe(Metcalfe) filed a medical malpractice suit against Dr. Spencer Lee(Lee) and Mark A. Pinsky, M.D., P.A.(Pinsky).Metcalfe later died of causes unrelated to this action.On May 9, 2005, counsel for defendant Lee filed and served on Attorney Bryan Caulfield, counsel for the deceased Metcalfe, a suggestion of Metcalfe's death, which occurred on or about May 6, 2005.

Plaintiff's1.260(a) Motion for Substitution

On June 30, 2005, Caulfield served a "Plaintiff's Motion for Substitution," asserting that "[a]n estate for Ms. Metcalfe is currently being set up by the Law Offices of Joseph Pippen, estate counsel for Plaintiff" and that "Plaintiff is in the process of probating Plaintiff's estate and is seeking the appointment of Robert D. Metcalfe, III, as Personal Representative of the estate" and requesting that the court enter an order substituting Robert D. Metcalfe, III, as Personal Representative of the Estate of Barbara Ann Metcalfe, as the plaintiff in the malpractice suit.When counsel for the defendants declined to stipulate to the substitution, the motion was set for hearing on August 22, 2005.

Defendants' Motion to Dismiss for Failure to Substitute Parties

On August 10, 2005, defendant Pinsky filed a "Motion to Dismiss for Failure to Substitute Parties," relying upon Florida Rule of Civil Procedure 1.260(a)(1).Pinsky asserted dismissal of the action was required because (1) the suggestion of Metcalfe's death was filed and served on May 9, 2005, and, thus, the ninety-day period referenced in the rule expired on August 8, 2005, and (2)the plaintiff failed to have the personal representative substituted before the expiration of the ninety-day period.Defendant Lee subsequently joined in the motion to dismiss.Defendants were correct that the June 30th motion was served and filed despite the fact that a probate estate had not yet been opened and Robert D. Metcalfe, III, had not yet been appointed the personal representative.

Trial Court's Ruling

On September 8, 2005, the trial court rendered an order denying the plaintiff's motion for substitution and granting the defendants' motion to dismiss.In making its ruling, the trial court found:

[T]he Motion for Substitution was not filed by a party with appropriate standing to bring such a motion within 90 days from the date on which the Suggestion of Death [was served], since a personal representative had not yet been appointed and counsel for the Plaintiff provided no authority for the Court to consider.

The court also found that no request for extension of time to accomplish the appointment of the personal representative was made until plaintiff's ore tenus motion at the August 22nd hearing—after the expiration of the ninety days—and that the evidence established ignorance of the law and negligence on the part of plaintiff's counsel, but not excusable neglect.

Further Proceedings

Thereafter, the plaintiff filed a motion for rehearing, an amended motion for rehearing, a second amended motion for rehearing, a third amended motion for rehearing, and, ultimately, a 1.540(b) motion to vacate the order denying the motion for substitution and granting the motion to dismiss.The motions for rehearing were denied and the plaintiff filed a notice of appeal (case number 4D05-4033).Thereafter, this court relinquished jurisdiction and the trial court entered a final judgment of dismissal.

During the pendency of the appeal, this court also relinquished jurisdiction so that the trial court could rule on the pending 1.540(b) motion.Among the documents filed with the trial court in support of the 1.540(b) motion was a copy of a September 13, 2005 order appointing Robert D. Metcalfe, III, and his sister, Marianne M. Cummings, as personal representatives of their mother's estate.Following a hearing, the trial court denied the 1.540(b) motion, and that ruling was also appealed (case number 4D06-1582).The appeals are now consolidated.

ANALYSIS

Florida Rule of Civil Procedure 1.260(a)

Florida Rule of Civil Procedure 1.260(a) provides in relevant part:

(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in rule 1.080 and upon persons not parties in the manner provided for the service of a summons.Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.

Principles of Statutory Construction Applicable to the Florida Rules of Civil Procedure

It is well-settled that the Florida Rules of Civil Procedure are construed in accordance with the principles of statutory construction.See generallyBrown v. State,715 So.2d 241, 243(Fla.1998)("Our courts have long recognized that the rules of construction applicable to statutes also apply to the construction of rules.")."The cardinal rule of statutory construction is that the courts will give a statute its plain and ordinary meaning."Weber v. Dobbins,616 So.2d 956, 958(Fla.1993).The same applies to rules of procedure.SeeStowe v. Universal Prop. & Cas. Ins. Co.,937 So.2d 156, 158(Fla. 4th DCA2006)(stating that the trend is to construe rules of civil procedure according to their plain meaning).In addition, a court may refer to a dictionary to ascertain the plain and ordinary meaning.SeeL.B. v. State,700 So.2d 370, 372(Fla.1997), superseded by statute on other grounds as stated inState v. A.M.,765 So.2d 927(Fla. 2d DCA2000);Williams v. State,378 So.2d 902, 903(Fla. 5th DCA1980)(declaring "the word `shall' as used by the Supreme Court when establishing rules of court procedure means exactly what it usually means and as defined in an accepted dictionary").The goal is to "strictly construe provisions to create rules that are clear-cut and easy to apply."Stowe,937 So.2d at 158;see alsoSaia Motor Freight Line, Inc.,930 So.2d at 600(describing rule 1.525 as establishing "a bright-line time requirement for motions for costs and attorney fees");Wilson v. Salamon,923 So.2d 363, 367(Fla.2005)(interpretingrule 1.420(e)"by its plain meaning" to "further the purpose of decreasing litigation over the purpose of the rule and fostering the smooth administration of the trial court's docket");Lamb v. Matetzschk,906 So.2d 1037(Fla.2005)(adopting a bright line rule concerning the form of a rule 1.442 proposal for settlement).

Standing to File the Motion for Substitution

The rule states, in pertinent part, that "[t]he motion for substitution may be made by any party or by the successors or representatives of the deceased party."Fla. R. Civ. P. 1.260(a)(1)(emphasis added).The term "any" means "one . . . selected without restriction."MERRIAM-WEBSTER ONLINE, http://www.m-w.com/dictionary.A "party" is "a person ... taking one side of a . . . dispute."Id.Thus, "any party" can be a person on one side of a dispute selected without restriction.In addition, the rule's language also allows for the "successors" of the deceased to file the motion.The word "successors" has been defined as "[t]hose persons, other than creditors, who are entitled to property of a decedent under his will or succession statute."BLACK'S LAW DICTIONARY 1432 (6th ed. 1990);see alsoSchwister v. Schoenecker,258 Wis.2d 1, 654 N.W.2d 852, 858 n. 9(2002)(stating that term "successors" is not defined by rule and that "[a] successor might include, for example, heirs or beneficiaries of a will or distributees of an estate that ha[s] been distributed");cf.Vera v. Adeland,881 So.2d 707, 710(Fla. 3d DCA2004)(stating that "as a general rule, if an estate has been opened, then the decedent's personal representative should be substituted," b...