Tucker v. Firestone Tire and Rubber Co.

• Court: Florida District Court of Appeals
• Writing for the Court: PATTERSON; LEHAN, A.C.J., and PARKER
• Citation: Tucker v. Firestone Tire and Rubber Co., 552 So.2d 1178, 14 Fla. L. Weekly 2719 (Fla. App. 1989)
• Decision Date: 22 November 1989
• Docket Number: No. 89-00553,89-00553
• Parties: 14 Fla. L. Weekly 2719, 14 Fla. L. Weekly 2878 Emmett TUCKER and Cone Brothers Contracting Company, Appellants, v. The FIRESTONE TIRE AND RUBBER COMPANY and Don Olson's Firestone, Inc., Appellees.

Page 1178

552 So.2d 1178

14 Fla. L. Weekly 2719, 14 Fla. L. Weekly 2878

Emmett TUCKER and Cone Brothers Contracting Company, Appellants, v. The FIRESTONE TIRE AND RUBBER COMPANY and Don Olson's Firestone, Inc., Appellees.

No. 89-00553.

District Court of Appeal of Florida Second District.

Nov. 22, 1989.

James W. Anderson of Lewis & McKenna, Tallahassee, for appellant Emmett Tucker.

David R. Tyrrell of Hill, Ward & Henderson, Tampa, for appellee The Firestone Tire and Rubber Co.

Nancy A. Lauten of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellee Don Olson's Firestone, Inc.

PATTERSON, Judge.

This appeal arises from a final order of dismissal of a personal injury action. We reverse.

Plaintiff Emmett Tucker died during the course of his litigation against defendants Firestone Tire and Rubber Co. and Don Olson's Firestone, Inc. A suggestion of death was filed on March 1, 1988. Pursuant to Florida Rule of Civil Procedure 1.260(a)(1), a motion for substitution of parties must be made within ninety days of the date a suggestion of death is filed. No motion was forthcoming, and on June 16 and 22, 1988, respectively, Firestone and Olson moved to dismiss the action under this rule.

On August 10, 1988, plaintiff's counsel moved to substitute the personal representative of the estate for the decedent. The motion recited difficulties in obtaining the appointment of Tucker's sister as personal representative.

On August 11, 1988, a hearing was held on the defendants' motions to dismiss. The trial judge declined to consider the motion to substitute and granted the motions to dismiss without prejudice. Thereafter, Tucker's counsel brought a motion in the nature of a motion for rehearing seeking to set aside the order of dismissal predicated on excusable neglect under Florida Rule of Civil Procedure 1.540. That motion was ultimately denied and this appeal followed.

We do not approve of the manner in which this matter was handled by trial counsel. Although a member of the Florida Bar, he practices in New Jersey. Faced with difficulties in obtaining the appointment of a personal representative, he could have sought an enlargement of the ninety-day time period or could have pursued the designation of an administrator ad litem. He did neither. He did, however, write the court two letters explaining his difficulties in probating the will, and he participated with the court and opposing counsel in a status conference where the matter was discussed. Eventually the New Jersey firm of which he was an associate retained Tampa counsel and paid to commence probate and obtain the appointment of the personal representative. This circumstance resulted from the inability of Tucker's sister to bear the costs, the estate having no assets other than his lawsuit.

In dismissing the action, the trial court relied on two cases. Canter v. Hyman, 363 So.2d 29 (Fla. 3d DCA 1978) and King v. Tyree's of Tampa, Inc., 315 So.2d 538 (Fla. 2d DCA 1975). In upholding dismissal, both of these cases rely in part on the fact that no difficulty was shown in obtaining the appointment of a personal representative. That is not the case here. Furthermore, King acknowledges that relief is appropriate under Florida Rule of Civil Procedure 1.540(b)(1) when there has in fact been excusable neglect. In a case factually similar to this case, the Third...