MATTIE MAE TUCKER, APPELLANT,
v.
THE BANK OF NEW YORK MELLON, ETC., APPELLEE
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A mortgage foreclosure case was tried before the case was "at issue" under Florida civil procedure rules because the defendant's counterclaim lacked a responsive pleading from the plaintiff at the time of trial. The appellate court reversed the foreclosure judgment and remanded for new proceedings following proper procedural compliance.
The court held that the case cannot be tried before it is "at issue," and a case is not "at issue" until all pleadings are closed. Because the trial occurred before appellee filed an answer to the counterclaim, the case was tried in violation of Rule 1.440, constituting reversible error.
[1] An action is not "at issue" for purposes of trial setting until all pleadings are closed.
[2] A case cannot be noticed for trial until twenty days after the filing of a responsive pleading to a counterclaim.
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Join FLexlaw to unlock all legal intelligence“An action is not "at issue" until the pleadings are closed.”
Establishes the governing legal standard under Florida Rule of Civil Procedure 1.440(a) for when a case can be tried.
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Join FLexlaw to unlock all legal intelligenceAppellee Bank of New York Mellon filed a mortgage foreclosure action against appellant Mattie Mae Tucker on January 9, 2012. Tucker answered on Octobe…
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On January 9, 2012, appellee, plaintiff below, filed a mortgage foreclosure action against appellant, defendant below. On October 9, 2012, appellant filed an answer, which included a crossclaim against appellant’s daughter, co-defendant, Velda Gail Tucker, and a counterclaim to quiet title in the appellant.1
On June, 17, 2013, the ease was set for a non-jury trial to occur on August 15, 2013. On July 25, 2013, appellant filed a motion to strike the order setting the case for trial, arguing that the case was not at issue because appelleé never filed an answer or other responsive pleading to her counterclaim.
The trial court denied appellant’s motion to strike on August 1, 2013. Later on August 1, 2013, appellant filed a motion for rehearing of the order denying the motion to strike. On August 6, -2013, appellee filed an answer to the counterclaim. On August 9, 2013, the trial court denied appellant’s motion for rehearing of the order denying the motion to strike.
*306The case, including both appellee’s foreclosure claim and appellant’s counterclaim,2 proceeded to trial on August 15, 2013. Following the bench trial, the court entered final judgment of foreclosure in appellee’s favor.
We reverse because the case was tried before it was “at issue,” in contravention of Florida Rule of Civil Procedure 1.440.- An action is not “at issue” until the pleadings are closed. See Fla. R. Civ. P. 1.440(a). Here, the order setting the case for trial was entered before appellee filed any responsive pleading to appellant’s counterclaim. The case was not at issue and, therefore, could not have been noticed for trial until 20 days after appellee filed its answer to the appellant’s counterclaim;3 the case, then, could not have been set for trial by the court any sooner than 30 days after service of the notice of trial.4 As we have previously held, “[fjailure to adhere strictly to the mandates of Rule 1.440 is reversible error.” Precision Constructors, Inc. v. Valtec Const. Corp., 825 So.2d 1062, 1063 (Fla. 3d DCA 2002) (citing Bennett v. Continental Chemicals, Inc., 492 So.2d 724 (Fla. 1st DCA 1986)).
Accordingly, we reverse the final judgment of foreclosure in favor of appellee and the orders denying appellant’s motion to strike arid appellant’s motion for rehearing of the order denying the motion to strike, and remand for further proceedings consistent with this opinion.
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Reilly v. U.S. Bank Nat'l Ass'n for JP Morgan Tr. 2007-S1, 185 So. 3d 620 (Fla. 4th DCA 2016)…n a default against Mr. Reilly. Nor did Mr. Reilly file an answer. Therefore, the action was not at issue, either when the trial court set the trial date or when the trial itself was held. This is reversible error. See Tucker v. Bank of N.Y. Mellon, 175 So. 3d 305, 306 (Fla. 3d DCA 2014). Accordingly, we reverse the final judgment of foreclosure as to Mr. Reilly and remand to the trial court for further proceedings consistent with the foregoing. This reversal does not. affect the final judgment as to .Ms. Ro…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rodger H. Bennett v. Cont'l Chems., Inc., 492 So. 2d 724 (Fla. 1st DCA 1986)
- Precision Constructors, Inc. v. Valtec Constr. Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002)