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825 So. 2d 1062

Precision Constructors, Inc. v. Valtec Construction Corp.

District Court of Appeal of Florida

Decided September 18, 2002

District Court of Appeal of Florida · decided 2002-09-18

Cited by 6 later decisions — most recently July 2015

6 state decisions

Key passage — most relied on by later courts

“Rule 1.440. Setting Action for Trial (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. The party entitled to serve motions directed to the last pleading may waive the right to do so by filing a notice for trial at any time after the last pleading is served. The existence of cross-claims among the parties shall not prevent the court from setting the action for trial on the issues raised by the complaint, answer, and any answer to a counterclaim.”

quoted by 1 later decision, including Lopez v. U.S. Bank, N.A.

Relies on 492 So. 2d 724 - Bennett v. Continental Chemicals, Inc. · 105 So. 2d 605 - Nystrom v. Nystrom

Good law ✅— No negative treatment on recordhow we know

Decided 2002-09-18

View the full empirical analysis of this case →

PER CURIAM.

¶1Precision Constructors, Inc., the defendant below, appeals from a final judgment in favor of Valtec Construction Corp., the plaintiff below, following a bench trial.

¶2We reverse as the case was tried before it was “at issue,” in contravention of Florida Rule of Civil Procedure 1.440. The original notice for trial was no longer viable after the plaintiff subsequently filed an amended complaint, thereby reopening the pleadings. See Nystrom v. Nystrom, 105 So.2d 605, 608 (Fla. 2d DCA 1958) (noting that if the defendant’s motion to amend her answer had been granted, “then the pleadings would be reopened and the cause would really be no longer at issue.”).1 An action is not “at issue” until the pleadings are closed. See id.; Fla. R. Civ. P. 1.440(a). Here, the case was not at issue until 20 days after the defendant filed its answer to the amended complaint.2See Fla. R. Civ. P. 1.440(a). By then, however, the case had already been tried.

¶3Failure to adhere strictly to the mandates of Rule 1.440 is reversible error.3See Bennett v. Continental Chemicals, Inc., 492 So.2d 724 (Fla. 1st DCA 1986). Accordingly, the judgment is vacated and the cause is remanded for a new trial.

¶4REVERSED AND REMANDED.

¶5. This reasoning is consistent with Florida Rule of Civil Procedure 1.440(a), which provides that “[a]n 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.” (emphasis supplied.)

¶6. Rule 1.440 also provides that an action may be ready for trial before the 20 day period expires if "the party [here, the plaintiff] entitled to serve motions directed to the last pleading," waives its right to file such motions by filing a notice for trial at any time. Fla. R. Civ. P. 1.440(a). This provision is of no consequence here as the plaintiff did not file a notice for trial at any time after the last pleading-defendant’s answer to the amended complaint-was served.

¶7.Under Rule 1.440, the proper procedure in this case would have been to serve a new notice for trial after the pleadings were finally closed (that is, after the defendant filed its answer to the amended complaint and any motions directed to the pleadings resolved) and the trial set for no earlier than 30 days after service of the notice for trial. See Fla. R. Civ. P. 1.440(a)-(c).

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