PERSONAL INJURY CORNER
Setting a Case for Trial
TED BABBITT
The recent case of Bush-Radomski v .
Krisan , 5D21-1777 ( 5th DCA Nov . 12 , 2021 ) was an application for a writ of mandamus to compel the trial court to set a trial date in a negligence case . The Court held that because the case was procedurally at issue under Florida Rule of Procedure 1.440 , upon the filing of the petitioners notice for trial the court had a mandatory duty to set the case for trial citing Kubera v .
Fisher , 483 So . 2d 836 ( Fla . 2d DCA 1986 ). The Court held “ It matters not whether respondent is ready or whether a certain discovery needs to be completed , once the case is procedurally at issue and noticed for trial the court must act upon the notice and give the parties a trial date . See Garcia v . Lincare Inc ., 906 So . 2d 1268 ( Fla . 5th DCA 2005 ).
This case follows a long line of cases holding that Rule 1.440 means what it says . Under paragraph a it states :
“ 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 .” Under paragraph c the rule states “ If the court finds the action ready to be set for trial , it shall enter an order fixing a trial date for trial ”.
Lawyers often take the position that the rule doesn ’ t mean what it says and claim that the case is not “ ready for trial ” because discovery is not complete , or the lawyers have other trials . That is not what the rule says , and many cases have made that clear . In Bennett v . Continental Chemicals
Inc ., 492 So . 2d 724 ( Fla . 1st DCA 1986 ) the Court held rule 1.440 leaves “ little room for improvisation ”.
Garcia v . Lincare , supra , 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 , but the
Appellate Court held that the Trial Court had misapprehended the applicable rule and that actual readiness for trial was not required , only procedural readiness in the closing of the pleadings under the rule was required .
In Sawzall Cattle Company v . Mikos , 431 So . 2d 260 ( Fla . 2d DCA 1983 ) the Trial Judge dismissed the case for lack of prosecution even though a notice for trial had been filed . The Appellate Court held that the Trial Court had a nondiscretionary duty to set the case for trial once it receives the notice of trial .
In Kubera v . Fisher , supra , the Appellate Court held at 837 that “ rule 1.440 ( a ) focuses on the pleading process , completion the of the discovery process is irrelevant ”.
In Global Life & Accident Insurance Company v . Preferred Risk Mutual
Company , 539 So . 2d 1192 ( Fla . 1st DCA 1989 ) the Court also held that rule 1.440 ( a ) focuses on completion of the pleading process and that completion of the discovery process is irrelevant as is actual readiness of the lawyers .
In Cabrera v . Pazos , 922 So . 2d 422 ( Fla . 2d DCA 2006 ) the Court made it clear that the duty to set a case for trial is the responsibility of the Trial Court not the parties and that no discretion exists whether to set the case for trial . Once a party files proper notice for trial it is clearly the court ’ s duty to set the case for a trial , see Reyes v . Reeves South Eastern Corporation , 895 So . 2d 1274 ( Fla . 2d DCA 2005 ); see also Young v . Mobile Dental Health Inc ., 730 So . 2d 766 ( Fla . 2d DCA 1999 ); Balboa Insurance Company v . Shores of Madiera Inc ., 457 So . 2d 596 ( Fla . 2d DCA 1984 ); Yankee Construction Corporation v . Jones-Mahoney Corporation , 430 So . 2d 973 ( Fla . 2d DCA 1983 ).
In Ivans v . Greenbaum , 613 So . 2d 130 ( Fla . 3d DCA 1993 ) the Third District Court of Appeals cited Kubera , supra , holding that
“ under the circumstances the trial court had a mandatory nondiscretionary duty to set the case for trial ”.
The law is settled that cases must be set for trial by the court once a notice for trial is properly filed . The time period for setting it is set forth in the rule and it does not matter if discovery is complete or how much work has to be done by the lawyers to get ready for trial . Of course , while the case must be set for trial the trial date is entirely within the discretion of the Court and the court can and should take into consideration how much discovery is left to be done . The problem with a Trial Court refusing to set a case for trial is that once the discovery is completed there is going to be a lag before the trial date and that is why the rule says what it says .
PBCBA BAR BULLETIN 20