Setting a case for trial: Rule 1.440 means what it says.

• Author: Trentalange, Mike
• Position: Florida

What we've got here is a failure to communicate."

One of the more memorable movie lines from the 1967 classic Cool Hand Luke, delivered by a road boss at a rural southern prison, summarized continued escape attempts by Paul Newman's character in the face of escalating punishment. In today's vernacular, the boss might simply say, "You just don't get it." Both lines could be applied to trial courts and attorneys to describe the continued misapprehension of Florida Rule of Civil Procedure 1.440 and the simple, straightforward process it describes for setting a case for trial.

Rule 1.440

The rule is clear. A case may be set for trial when it is "at issue." That term is defined by Fla. R. Civ. P. 1.440(a), which provides in part:

(

1. When at issue. An action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading.... (1)

   Once a case is at issue, as defined by Fla. R. Civ. P. 1.440(a), either party may file a notice for trial. Rule 1.440(b) provides in part:

2. Notice for trial. Thereafter any party may file and serve a notice that the action is at issue and ready to be set for trial....

   The procedure is elegant in its simplicity. As the First District noted in Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1986), Rule 1.440 leaves "little room for improvisation...." In the typical scenario, the plaintiff files a complaint, to which the defendant serves an answer. The plaintiff may then file a reply or, if there are no avoidances to be pled, may choose instead to file no further pleadings. The case is at issue 20 days after service of the last pleading, or when any motions directed to the last pleading have been resolved.

   In the case where a plaintiff has elected not to file a reply, the plaintiff may waive the right to file motions directed at the defendant's answer by serving a notice for trial at any time after service of the answer. Likewise, if the plaintiff has served a reply to the defendant's answer, the defendant may waive the right to file motions directed at the last pleading by serving a notice for trial.

   In response to a notice for trial, the adverse party will frequently contend that, while a case may be "technically at issue," it is not ready for trial. Discovery and trial preparation remain to be done, the argument goes, and neither side is actually ready to try its case. Surprisingly, many trial judges are receptive to this argument, despite clear appellate authority holding these very objections to be irrelevant.

   In Garcia v. Lincare, 906 So. 2d 1268 (Fla. 5th DCA 2005), the Fifth District issued a writ of mandamus to a trial judge who sustained objections to setting a case for trial after receiving a notice for trial. The trial judge determined that the case would be set for trial only after discovery had been completed. In issuing the writ, the appellate court noted that focusing on the completion of discovery "misapprehends the applicable rule." Actual readiness for trial is not required, only procedural readiness, i.e., the closing of the pleadings. When the pleadings are closed, the Garcia court held, the receipt of a notice for trial triggers a mandatory duty to set the case for trial.

   Garcia is not an anomaly. The question of when and whether to set a case for trial has been presented--and resolved--by appellate courts around...