www.rissman.com
TAMPA COMMONS
ONE NORTH DALE MABRY HIGHWAY
11TH FLOOR
TAMPA, FLORIDA 33609
TELEPHONE (813) 221-3114
TELECOPIER (813) 221-3033
TAMPA@RISSMAN.COM
201 EAST PINE STREET
15TH FLOOR
P.O. BOX 4940
ORLANDO, FLORIDA 32802-4940
TELEPHONE (407) 839-0120
TELECOPIER (407) 841-9726
ORLANDO@RISSMAN.COM
709 SEBASTIAN BOULEVARD
SUITE B
SEBASTIAN, FLORIDA 32958
TELEPHONE (772) 228-3228
TELECOPIER (772) 228-3229
SEBASTIAN@RISSMAN.COM

 

 

In Lopez v. U.S. Bank as Trustee for J.P. Morgan Mortgage Trust, 38 Fla. L. Weekly D1471a (Fla. 3d DCA July 3, 2013), the 3d DCA reversed a final post-trial judgment because the trial had taken place less than 20 days after the defendant's filing of its response to the complaint. Pursuant to Florida Rule of Civil Procedure 1.440, the case was not at issue and should not have been set for trial.

Anna Lopez filed her answer and affirmative defenses to U.S. Bank's complaint on January 21, 2013. On its own motion, the trial court ordered the trial to go forward on February 8, 2013. Counsel for Ms. Lopez objected, arguing that the trial date was less than 20 days after service of her client's responsive pleading and that, pursuant to Florida Rule of Civil Procedure 1.440, the case was not at issue.

Counsel for U.S. Bank agreed with Ms. Lopez' position but the trial court conducted trial on February 8, 2013 and entered final judgment in favor of U.S. Bank. On appeal, U.S. Bank conceded that the final judgment in its favor had to be reversed as the case was not "at issue" when it went to trial. The 3d DCA agreed and reversed the final judgment in favor of U.S. Bank and remanded the matter for a new trial. In so doing, the 3d DCA reiterated that "failure to adhere strictly to the mandates of Rule 1.440 is reversible error."

The relevant portion of Florida Rule of Civil Procedure 1.440 states:

(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 crossclaims 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 counter-claim.

 


This summary was prepared by Ted Copeland of our firm.


Ted Copeland

 

 

38 Fla. L. Weekly D1471a

 

Civil procedure -- Error to enter final judgment where case was tried before it was "at issue" -- Case was not at issue where trial proceeded less than twenty days after defendant served answer and affirmative defenses

ANA LOPEZ, Appellant, vs. U.S. BANK, N.A., AS TRUSTEE FOR JP MORGAN MORTGAGE TRUST 2006-A2, Appellee. 3rd District. Case No. 3D13-458. L.T. Case No. 10-48530. Opinion filed July 3, 2013. An appeal from the Circuit Court for Miami-Dade County, Eugene J. Fierro, Senior Judge. Counsel: Christopher H. Saia, for appellant. Carlton Fields and Michael K. Winston, Dean A. Morande and Donna L. Eng (West Palm Beach), for appellee.

(Before WELLS, SUAREZ and LAGOA, JJ.)

CONFESSION OF ERROR

(PER CURIAM.) Ana Lopez ("Lopez") appeals from a final judgment entered in favor of U.S. Bank, N.A., as Trustee for JP Morgan Chase Mortgage Trust ("U.S. Bank"). Because this case was tried before it was "at issue," in contravention of Florida Rule of Civil Procedure 1.440, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

On its own motion, the trial court issued an order setting trial for February 8, 2013. On that date, Lopez's counsel objected to the case proceeding to trial, arguing that Lopez served her answer and affirmative defenses on January 21, 2013, which was less than the twenty days after service of the last pleading required by Florida Rule of Civil Procedure 1.4401 for an action to be "at issue." Indeed, the record shows that U.S. Bank's counsel agreed with Lopez's counsel on this point, and also brought the matter to the trial court's attention. Nonetheless, the trial court conducted a trial on that date, and entered final judgment in favor of U.S. Bank.

II. ANALYSIS

On appeal, U.S. Bank properly concedes that the final judgment must be reversed as the case was not "at issue" pursuant to Rule 1.440 until twenty days after service of Lopez's answer and affirmative defenses. Moreover, U.S. Bank had not waived its right to serve motions directed at Lopez's answer and affirmative defenses by filing a notice of trial. See Fla. R. Civ. P. 1.440(a).

Because "[f]ailure to adhere strictly to the mandates of Rule 1.440 is reversible error," Precision Constructors, Inc. v. Valtec Constr. Corp., 825 So. 2d 1062, 1063 (Fla. 3d DCA 2002), we reverse the final judgment in favor of U.S. Bank and remand for a new trial.

REVERSED AND REMANDED.

__________________

1The relevant portion of the Rule states:

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 crossclaims 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.



* * *