When Ready For Trial Does Not Really Mean Ready For Trial
By: Gregory T. Zele
Published in Issue #506 of the AFTL Journal
The pleadings are closed, 20 days have passed, you notice the case for trial. The defense attorney immediately objects screaming that no discovery has been completed, there are 50 depositions that need to be taken etc. etc. etc., We have heard it all before from them.
Next thing you know, you’re standing in front of the judge on defendant’s Motion to Strike Plaintiff’s Notice for Trial. The defense attorney argues that suit was only recently filed, that no discovery has been completed and that the case is far from ready for trial. The defense attorney may dutifully quote Rule1.440(b) which says in pertinent part that after the pleadings have been closed for 20 days: “[t]hereafter any party may file and serve a notice that the action is at issue and ready to be set for trial.”
A sharp defense attorney may even try to turn the tables and argue that if plaintiff thinks the case is “ready for trial” then surely plaintiff’s experts must be in a position to provide their final opinions and that the court should order plaintiff to immediately disclose his experts and their opinions.
The Judge glares down at you solemnly from the bench and says: “Mr. Plaintiff attorney are your experts ready to be deposed?”
“No, your Honor.”
“Are you ready for trial?”
“No, your Honor.”
“Then why did you file a notice for trial if you are not ‘ready for trial’ as required by the Florida Rules?”
The simple answer is that according to the plain language of the Rule, a case does not need to be ready for trial when you file a notice for trial but rather the Rule only requires that the case must be ready to be set for trial. However, until recently, there wasn’t much case law to support this position and thus each Court was essentially on its own to determine whether or not the case should be set for trial.
The distinction between “ready for trial” and “ready to be set for trial” was discussed in dicta as early as 1986 in Kubera v. Fisher, 483 So.2d 836 (Fla. 2d DCA 1986). The main issue in Kubera revolved around a motion to dismiss for failure to prosecute and whether the filing of a notice for trial before the defense filed a motion to dismiss was sufficient record activity to keep the case alive. Id. at 837. In addressing the issue of what constitutes record activity and specifically whether a notice for trial was valid when no discovery had been completed, the Second District noted in dicta that the filing of a notice for trial is record activity because the case is “ready for trial” twenty days after the last pleading was filed irrespective of whether discovery had been conducted. Id. at 838.
Recently, the Fifth District addressed this issue head on in Garcia v. Lincare, Inc., 906 So.2d 1268 (Fla. 5th DCA 2005). Garcia was a medical malpractice case in which the plaintiff filed multiple notices for trial and, in response to each of the plaintiff’s notices for trial, the Defense filed objections claiming that the case was not ready for trial. Id. Unfortunately for the plaintiff in Garcia but fortunately for the rest of us, the trial court repeatedly sustained the defendants objections to the notices for trial ruling that it would not set the case for trial until discovery had been completed. Id.
Eventually, the plaintiff was forced to seek a writ of mandamus asking the appellate court to intercede and require the circuit court to set the matter for trial. Id. The issue before the Fifth District in Garcia was whether a trial court must set a case for trial once the case is procedurally at issue. Id.
As expected, the defendant’s argued that according to the plain language of Rule 1.440, a case could not be set for trial until it was “at issue and ready to be set for trial” and that because discovery had not been completed, the case could not possibly be “ready to be set for trial” a contemplated by the Rule. In order to answer the question raised by the case, the Garcia Court was forced to interpret the meaning behind the phrase “ready to be set for trial” as used in Rule 1.440.
In a well reasoned opinion, the Fifth District rejected the defense argument and held that “[o]nce a case is procedurally at issue ... upon the filing of a proper notice for trial, the court must act upon the notice within a reasonable time and give the parties a trial date.” In so holding, the Garcia Court adopted the reasoning expressed by Judge Padovano in Florida Civil Practice, §15.2 (2004-2005 ed.) wherein he wrote:
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 that 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 remains at issue and it is not a valid reason to delay the entry of an order setting trial. (Emphasis added)
The Garcia Court emphasized that a trial court does have discretion as to when to set the trial but nevertheless, a plain reading of Rule 1.440 requires a trial court to act upon a properly filed notice for trial within a reasonable time of receipt of same and give the parties a trial date. Id. at 1269.
The holding in Garcia is a common sense holding. If the Fifth had held otherwise, the defendants, to a great extent, would have control over when a case can be set for trial simply by filing additional discovery requests thereby allowing the defense to argue that they are not “ready for trial” due to the outstanding discovery. Garcia is also a practical holding. In today’s world few, if any, cases get set for trial thirty days after the filing of a notice for trial as permitted by Rule 1.440(c). Accordingly, if the parties were forced to wait until all discovery was completed prior to filing a notice for trial, we’d all have a lot of free time on our hands between the time we completed discovery and actually ended up trying a case three, six or nine months or more later.
So there you have it. Notice your case for trial after 20 days and be sure to bring a copy fo Garcia with you to the hearing on inevitable motion to strike.
