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Chapter 13-2 Setting Trials
Jurisdiction | United States |
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...
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