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If a party to litigation dies and the claims are not thereby extinguished, the court may order substitution of the proper party. After a suggestion of death is filed, any party, or the deceased party’s successors or representatives, may file a motion for substitution. Unless the motion for substitution is made within 90 days after the suggestion of death is filed and served, the action shall be dismissed as to the deceased party. Fla. R. Civ. P. 1.260(a). This subsection only applies to natural persons; it does not apply to the dissolution of a corporation, as that is governed by Rule 1.260(c). The Rule also does not apply to the death of a party to an appeal, as that is governed by Fla. R. App. P. 9.360(c).
A recent 4th DCA case highlights the importance of substituting the proper party in litigation. In Desbrunes v. US Bank National Association, etc., 2024 WL 591432 (Fla. 4th DCA, February 14, 2024)(this case has not been released for publication in the permanent law reports and is subject to revision or withdrawal), the bank sued defendant mortgagor to foreclose a mortgage. The mortgagor died during the litigation, and his attorney filed a suggestion of death. The bank then moved to amend its complaint to add the mortgagor’s heirs as defendants, including appellant Desbrunes, which motion was granted by the trial court.
Appellant and the mortgagor’s other heirs were served with the amended complaint but failed to respond, after which the bank obtained a clerk’s default. The deceased mortgagor’s former attorney, in an effort to remedy the situation, filed a motion to abate the foreclosure action pending appointment of a representative for the estate of the deceased mortgagor, which motion was denied by the trial court. The trial court then granted the bank’s motion for summary judgment of foreclosure and entered a final judgment against Desbrunes and the other heirs.
The appellate court reversed the final judgment and remanded to the trial court for further proceedings. The court held that the bank’s motion to amend to add the heirs of the deceased mortgagor was improper under Rule 1.260(a). The Rule requires substitution of the “proper parties” and, for a deceased party, the proper party is the estate’s personal representative, not the deceased party’s heirs.
The court concluded that, “ ‘Failure to substitute the proper representative or guardian nullifies subsequent proceedings.’…Accordingly, all action after the suggestion of death was a legal nullity and invalid because the proper party was not before the trial court.”