CITIZENS PROPERTY INSURANCE CORPORATION
v.
YOSMERI BORGES AND YOMARIS BORGES
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Citizens Property Insurance Corporation sought a writ of mandamus to compel removal of a case from the trial docket, arguing the case was not "at issue" under Florida Rule of Civil Procedure 1.440 because a pending motion to strike remained undisposed. The court agreed the case was not at issue but denied mandamus relief because the trial court had already removed the case from its docket, mooting the petition.
An action is not "at issue" under Rule 1.440(a) until all motions directed to the last pleading have been disposed of. The trial court lacks discretion to set for trial an action that is not at issue. However, because the trial court had already removed the case from its docket and stayed the action before decision, mandamus relief was moot.
[1] An action becomes 'at issue' for trial purposes only after all motions directed to the last pleading served have been disposed of, and a trial court lacks discretion to s…
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Join FLexlaw to unlock all legal intelligence“An action is at issue after any motions directed to the last pleading served have been disposed of . . . .”
Establishes the legal standard for when a case becomes "at issue" under Rule 1.440(a)
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Join FLexlaw to unlock all legal intelligenceCitizens filed an answer and affirmative defenses on February 26, 2024. The Borgeses filed a motion to strike directed at Citizens' answer on March 6,…
The full statement of facts, procedural history, and disposition for this case are member content.
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SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA
_____________________________
Case No. 6D2024-0859 Lower Tribunal No. 2022-CA-001468
_____________________________
CITIZENS PROPERTY INSURANCE CORPORATION,
Petitioner,
v.
YOSMERI BORGES and YOMARIS BORGES,
Respondents.
_____________________________
Petition for Writ of Mandamus to the Circuit Court for Lee County.
James Shenko, Judge.
September 20, 2024 GANNAM, J.
Citizens Property Insurance Corporation, the defendant below, petitions the court for a writ of mandamus compelling the trial court to remove the case from its trial docket because the case is not “at issue” under Florida Rule of Civil Procedure
1.440. Citizens is right, but we deny mandamus relief because the trial court mooted
Citizens’ petition by removing the case from its trial docket and staying the action pending our decision.
“An action is at issue after any motions directed to the last pleading served have been disposed of . . . .” Fla. R. Civ. P. 1.440(a). “Thereafter any party may file and serve a notice that the action is at issue and ready to be set for trial.” Fla. R. Civ. Civ. P. 1.440(c). “For many years, the appellate courts of this state have emphasized that the rule’s specifications are mandatory and they have admonished trial courts to strictly adhere to them.” Gawker Media, LLC v. Bollea, 170 So. 3d 125, 129 (Fla.
2d DCA 2015); cf. § II.E.(7)a.ii., Fla. Admin. Order No. AOSC21-17, Amend. 3 (Jan. 8, 2022) (“The case management order must . . . indicate that a firm trial date will be ordered by the presiding judge when the case is at issue pursuant to Florida
Rule of Civil Procedure 1.440.”) “Indeed, a trial court’s obligation to hew strictly to the rule’s terms is so well established that it may be enforced by a writ of mandamus compelling the court to strike a noncompliant notice for trial or to remove a case from the trial docket.” Gawker Media, 170 So. 3d at 130.
At the time of Citizens’ petition, there remained pending in the trial court a motion directed to the last pleading served—the Borgeses’ motion to strike directed to Citizens’ answer and affirmative defenses.1 By the plain meaning of rule 1.440(a),
the action was not at issue. To be sure, the action was at issue when Citizens filed its answer, and perhaps at other times previously. But after the Borgeses filed their
Monitoring, Inc., 276 So. 3d 475, 479 (Fla. 3d DCA 2019) (“Here, the filing of the compulsory counterclaim reopened the pleadings, thereby divesting the case of its
‘at issue’ status.”); Precision Constructors, Inc. v. Valtec Const. Corp., 825 So. 2d
1062, 1063 (Fla. 3d DCA 2002) (“The original notice for trial was no longer viable after the plaintiff subsequently filed an amended complaint, thereby reopening the pleadings.”).
The trial court did not have discretion to set for trial an action that was not at issue. But the trial court struck the case from its trial docket and stayed the action pending our disposition of Citizens’ petition. We need not issue a writ to compel what is already done, and thus we deny the petition as moot.
PETITION DENIED.
TRAVER, C.J., and SMITH, J., concur.
Kathryn L. Ender, of Dinsmore & Shohl LLP, Miami, for Petitioner.
Chrystal P. Robinson, of Elite Insurance Law, PLLC, Boca Raton, for Respondents.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED