Chapter 13-2 Setting Trials

13-2 Setting Trials

Florida Rule of Civil Procedure 1.440 governs setting all cases for trial. A case must be at issue before it may be set for trial, and if the parties are forced to trial prematurely, the trial court commits reversible error.¹ Consequently, it is important to carefully consider whether a matter is at issue before proceeding to trial. Once a case is at issue, any party may serve a notice advising the court and all parties that trial may be scheduled.² The notice should include an estimate of the time needed for trial and whether the trial is to be by jury.³ In Florida, mortgage foreclosure is an equitable proceeding which does not afford parties a right to a jury trial.⁴ Where a compulsory counterclaim is asserted, a party is entitled to a jury trial on the issues raised which are shared by the equitable claim.⁵ Upon receipt of a notice of readiness for trial, the clerk is to submit the notice and case file to the court for setting of the trial.⁶ In many foreclosure divisions, however, judges have specific procedures for advising of readiness for trial and a foreclosure clerk or case manager may be tasked with setting the trial without submission of the court file.

13-2:1 Readiness for Trial

An action is at issue after any motion directed to the last served pleading has been adjudicated.⁷ For example, a motion to strike affirmative defenses is a motion directed to an answer and affirmative defenses, so while that motion remains pending, the pleadings cannot close.⁸ If no such motion is filed, then 20 days after service of the last pleading is the trigger date for a case being at issue.⁹ A party can also waive the opportunity to file a motion directed to the last pleading.¹⁰ This is a common occurrence when a plaintiff elects to notice the matter for trial rather than file a reply or a motion directed at the answer and affirmative defenses. Note that while pleadings involving a counterclaim are intertwined with the original claim, pleadings involving a cross claim may be treated independently and do not preclude the case from being at issue and ready for trial.¹¹ Additionally, procedural readiness for trial should not be confused with practical readiness for trial. Pending discovery or a pending motion for leave to amend the pleadings will not prevent the pleadings from being closed.¹²

A case is said to be ready for trial when it is at issue but in this context the term "ready" is used in a legal sense to mean that the pleadings are...