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Setting a Case for Trial: Rule 1.440 Means What It Says

Trial Lawyers

& #x201c;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: “(a) 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: “b) 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 the state many times over the course of more than 25 years. In Sarasota Cattle Co. v. Mikos, 431 So. 2d 260 (Fla. 2d DCA 1983), the trial court dismissed an action between a property owner and the tax assessor for lack of prosecution. The appellant argued that its case should not have been dismissed because it had served a notice for trial. At that point, it contended, the duty was on the trial judge to set the case for trial. The Second District agreed. “Once counsel has properly noticed the case for trial, absent any other happenings, ‘the ball [is] in the court’s court.’”2 In other words, the trial court has a nondiscretionary duty to set a case for trial upon receipt of a notice for trial.

Three years later, the Second District Court of Appeal was again faced with a case that had been dismissed for failure to prosecute after the appellant had filed a notice for trial. In Kubera v. Fisher, 483 So. 2d 836 (Fla. 2d DCA 1986), the appellate court reiterated that a properly filed notice for trial triggers the trial court’s duty to set the case for trial and precludes dismissal for failure to prosecute. More importantly for purposes of this discussion, it explained the meaning of “ready for trial” within the context of Rule 1.440:

An action is ready for trial, or is “at issue,” after any motions directed to the last pleading have been disposed of, or, if no motions have been served, [20] days after service of the last pleading. Fla. R. Civ. P. 1.440(a). In the instant case, the last pleading, i.e., the defendant’s answer and defenses to the third count of the plaintiffs’ amended complaint, was filed on November 17, 1983. There were no motions directed to that pleading. The case, therefore, was ready for trial [20] days after that pleading was filed, and the notice for trial was record activity sufficient to preclude dismissal for failure to prosecute.3

The Second District also rejected the contention that the failure to respond to discovery requests prevented the action from being set for trial. “Rule 1.440(a),” wrote the court, “focuses on the pleading process; completion of the discovery process is irrelevant.”4

In Globe Life & Accident Insurance Co. v. Preferred Risk Mutual Insurance Co., 539 So. 2d 1192 (Fla. 1st DCA 1989), the First District granted certiorari in a case where trial was conducted without a notice of trial ever having been filed. Noting the straightforward requirements of Rule 1.440, the appellate court held that the case could not be set for trial if it was not at issue because of pending motions. Disregarding the requirements of the rule amounted to a departure from the essential requirements of the law. The court nevertheless rejected the contention that the case was not ready for trial because discovery was incomplete. Citing Kubera, the court wrote:

Petitioners also alleged that discovery was incomplete at the time of the hearing. However, the fact that discovery was not completed when the motion for garnishment hearing was filed is not determinative. It has been held that Rule 1.440(a) focuses upon completion of the pleading process; completion of the discovery process is irrelevant.5

Not only is the completion of discovery irrelevant, so is the actual readiness of the lawyers involved. Judge Padovano, cited by the Garcia court, made this point well in his treatise:

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 closed. It does not necessarily mean the lawyers are prepared to try the case. Often the lawyers will not be ready for trial when the date is set because they will not have comp[l]eted all the discovery by then. However, the fact that discovery remains to be completed has no bearing on whether the case is at issue and it is not a valid reason to delay the entry of an order setting trial.6

In Cabrera v. Pazos, Larrinaga & Taylor, P.A., 922 So. 2d 422 (Fla. 2d DCA 2006), the Second District affirmed the duty of the trial judge to set a case for trial upon receipt of a proper notice for trial. The appellate court emphasized that, not only is there a duty to set the case for trial in such circumstances, but that the duty belongs to the court.7 In that case, the trial judge had dismissed the case for failure to prosecute after the receipt of a notice for trial. In denying a motion to vacate the order of dismissal, the trial judge wrote:

Specifically, over the course of the past year, the [c]ourt has advised [p]laintiff’s counsel to undertake any action to move the matter toward a [t]rial, including the setting of the case since the [c]ourt maintains publicly available [t]rial dates and form [o]rder[s] [s]etting [t]rial. Plaintiff’s counsel has simply not done anything.8

While the plaintiff’s counsel may have “simply not done anything,” the appellate court emphasized that it was the trial judge’s responsibility to set the matter for trial:

In denying the motion, the trial court relied upon its customary practice which placed the burden upon the parties to set cases on the trial docket. We disapprove of this practice just as the First District in Parrish v. Dougherty, 505 So. 2d 646, 648 (Fla. 1st DCA 1987), disapproved a similar local practice.9

While most of the cases construing a trial judge’s obligations pursuant to Rule 1.440 have arisen in the context of motions to dismiss for failure to prosecute, that is not uniformly true. At least two appellate courts have issued writs of mandamus under circumstances in which a trial court has not set a properly noticed case for trial.

In Ivans v. Greenbaum, 613 So. 2d 130 (Fla. 3d DCA 1993), the Third District Court of Appeal cited Kubera in holding that “under the circumstances10 the trial court had a mandatory, non-discretionary duty to set [the] case for trial.” And the Fifth District in Garcia has recognized that mandamus is appropriate when a case is at issue and the trial judge declines to set the matter for trial.11

Practical Considerations
The opinions cited make clear that whether or not to set a case for trial depends solely on a simple procedural inquiry: Is the case at issue as defined by Rule 1.440? If the answer is in the affirmative, the case must be set for trial. But when is the case to be tried?

While the trial court has no discretion as to whether to set a case for trial, it has substantial discretion as to when to set the case for trial. Considerations about completion of discovery, attendance of witnesses, potential conflicts of counsel, and the court’s own schedule are all appropriate in deciding when to schedule the trial.12

In selecting a trial date, Rule 1.440 provides some additional assistance. If the court determines that the case is ready to be set for trial, the trial shall be set not less than 30 days from the service of the notice for trial.13 At the other extreme, Fla. R. Jud. Admin. 2.250 provides that, in civil jury cases, it is “presumptively reasonable” for a case to be completed in 18 months from filing to final disposition. This rule measures the time period from filing, not service,14 and it addresses final disposition, not verdict.15 The rule must be read in agreement with Fla. R. Jud. Admin. 2.545, which provides that “[j]udges and lawyers have a professional obligation to conclude litigation as soon as it is reasonably and justly possible to do so.”

The case management conference provided for in Fla. R. Civ. P. 1.200(a) gives an excellent opportunity for trial courts to gather information from counsel about various considerations when fixing a trial date, and its use has been expressly sanctioned by the Fifth District.16

Fla. R. Civ. P. 1.440 clearly describes the procedure for setting a case for trial. Once a case is at issue, any party may file a notice for trial. Upon receipt of the notice, a trial court has a nondiscretionary, mandatory duty to set the case for trial. Concerns about completion of discovery are irrelevant to the court’s obligation to set the case for trial. Those concerns can be addressed by the court in determining when the case is to be tried, consistent with other rules and the court’s general obligation to manage its docket.

1 The party entitled to serve motions directed to the last pleading may waive its right to do so and file a notice for trial even before 20 days after the last pleading. Fla. R. Civ. P. 1.440(a).

2 Sarasota Cattle Co., 431 So. 2d at 260, quoting Fox v. Playa Del Sol Association, Inc., 446 So. 2d 126 (Fla. 4th D.C.A. 1983).

3 Kubera, 483 So. 2d at 837.

4 Id. at 837.

5 Globe Life & Accident Insurance Co., 539 So. 2d at 1192 (emphasis original).

6 Philip J. Padovano, Florida Civil Practice §15.2 (2004-2005 ed.).

7 There is a surprising number of cases explaining that “[o]nce a party files a proper notice of trial, it is the court’s duty to set the cause for trial.” Reyes v. Reeves Southeastern Corp., 895 So. 2d 1274 (Fla. 2d D.C.A. 2005). See also Young v. Mobile Dental Health, Inc., 730 So. 2d 766 (Fla. 2d D.C.A. 1999); Balboa Ins. Co. v. Shores of Madeira, Inc., 457 So. 2d 596 (Fla. 2d D.C.A. 1984); Yankee Constr. Corp. v. Jones-Mahoney Corp., 430 So. 2d 973 (Fla. 2d D.C.A. 1983).

8 Cabrera, 922 So. 2d at 423-24.

9 Id. at 422, 424.

10 The appellate opinion does not say what those circumstances were; however, the most likely inference, drawn from the citation to Kubera, is that the trial judge had misconstrued Rule 1.440 and chosen not to set a case for trial based upon improper or irrelevant considerations.

11 “[M]andamus lies to compel a judge to rule on a case when there is no lawful basis for him or her to reserve ruling. Thus, if a lower court, without sufficient reason, neglects or refuses to act on a matter within its jurisdiction, properly brought before it, mandamus will issue at the instance of one entitled to invoke the remedy, to compel it to assume jurisdiction and proceed to a determination of the cause, unless the aggrieved party has an adequate remedy by appeal. The failure of a court to rule on a matter within the court’s jurisdiction, which matter is properly before the court and ripe for disposition, is subject to mandamus.” 35 Fla. Jur. 2d Mandamus and Prohibition §89 (2009).

12 Garcia v. Lincare, 906 So. 2d 1268 (Fla. 5th D.C.A. 2005).

13 Fla. R. Civ. P. 1.440(c).

14 Fla. R. Civ. P. 1.070(j) allows up to four months (120 days) for service of initial process.

15 Post trial motions, such as motions for new trial or motion for judgment in accordance with a previous motion for directed verdict must be brought within 10 days of the return of the verdict, Fla. R. Civ. P. 1.530(a), and within 10 days of discharge of the jury, Fla. R. Civ. P. 1.480(b).

16 “We note that several courts within our jurisdiction act on notices for trial by setting scheduling or case management conferences during which a disclosure and discovery schedule are incorporated into an order that fixes a trial date. This procedure appears to work well and is consistent with the holding in this case.” Garcia, 906 So. 2d at 1269 n. 1.

Mike Trentalange is the managing shareholder of Trentalange & Kelley, P.A., in Tampa. He graduated with honors from Stetson University College of Law in 1989 and obtained his B.A. from the University of Florida in 1983. Mr. Trentalange is board certified as a civil trial lawyer by The Florida Bar’s Board of Legal Specialization and Education.

This column is submitted on behalf of the Trial Lawyers Section, Robert Earl Mansbach, Jr., chair, and D. Matthew Allen, editor.

Trial Lawyers