WILLIAM N. HODGE, PETITIONER,
v.
KIDDER PEABODY & CO., INCORPORATED, AND WILLIAM POULSON, III, RESPONDENTS
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Petitioner sought a writ of certiorari to review a trial court's order setting a case for trial before all pleadings were filed. The appellate court agreed the trial court erred but denied the petition for lack of jurisdiction, holding that petitioner had an adequate remedy through plenary appeal.
The court agreed that the trial court erred in setting the case for trial before all pleadings were filed, but denied the certiorari petition because the court lacked jurisdiction to grant relief; petitioner had an adequate remedy through plenary appeal, and any error could be remedied by a new trial if necessary on subsequent appeal.
[1] A writ of certiorari is an extraordinary remedy and is not available when the petitioner has an adequate remedy by way of plenary appeal.
[2] A case is not at issue for trial purposes until the last available pleading has been filed.
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Join FLexlaw to unlock all legal intelligence“[P]leadings should be settled and the cause at issue when it is set for trial. Rule 1.440, F.R.C.P., 30 F.S.A.”
Establishes the established rule that a case must be at issue before trial is set, which the trial court violated.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePetitioner filed a motion to strike an action from the trial calendar, contending that the case should not be set for trial because the last available…
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GLICKSTEIN, Judge.
This is an expedited petition for a writ of certiorari for review of a non-final order of a trial court, denying petitioner’s motion to strike an action from the trial calendar. Respondents elected to file no response, notwithstanding the opportunity to do so; the trial docket commences on August 19, 1985. Petitioner contends that it was error for the trial court to set the case for trial, as the last available pleading had not been filed, the case therefore not being at issue. We agree but reluctantly deny the petition because we are without jurisdiction to grant relief when the petitioner has adequate relief by way of plenary appeal. If this court were to conclude at such later time that the trial court’s obvious error1 was harmful, a new trial would be the equally obvious remedy.
Petitioner cites as authority for our assertion of jurisdiction the decision in Leeds v. C.C. Chemical Corporation, 280 So. 2d 718 (Fla. 3d DCA 1973), a similar case factually but one in which the appellate court was considering an appeal from the order in question, not a petition for certiorari. It reversed the trial court, without stating the basis for its jurisdiction. Neither the Florida Rules of Appellate Procedure at that time nor at the present time expressly provide for appeal from such order. In denying the petition, we do not speculate that there will be a plenary appeal in the future; and we surely do not suggest what the outcome of such appeal might be. Furthermore, we call the trial court’s attention to its authority to vacate non-final orders prior to final judgment for legitimate reasons2 for no purpose other than to remind trial courts generally of such authority.
DOWNEY and WALDEN, JJ., concur. . We say obvious because of this court’s language in Ellis v. Ellis, 242 So. 2d 745, 747 (Fla. 4th DCA 1971):
[P]leadings should be settled and the cause at issue when it is set for trial. Rule 1.440, F.R.C.P., 30 F.S.A. . See Motorola Communications and Electronics, Inc. v. National Patient Aids, Inc., 427 So. 2d 1042 (Fla. 4th DCA 1983) and the additional authority cited in footnote 1 therein for such proposition.
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Citator
Cited By
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Kuvin v. Keller Ladders, Inc., 797 So. 2d 611 (Fla. 3d DCA 2001)…s a matter of law. International Jai-Alai Players Ass’n v. Dania Jai-Alai Div. of the Aragon Group, Inc., 563 So. 2d 1117 (Fla. 4th DCA 1990); Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1986); Hodge v. Kidder Peabody & Co., 473 So. 2d 845 (Fla. 4th DCA 1985); Leeds v. C.C. Chemical Corp., 280 So. 2d 718 (Fla. 3d DCA 1973). In fact, on August 5, 1999, the trial date was continued to October 18, 1999, and the trial did not start even then because of the entry of the summary judgment re…
Authorities Cited
- Motorola Commc'ns & Elecs., Inc. v. Nat'l Patient Aids, Inc., 427 So. 2d 1042 (Fla. 4th DCA 1983)
- Uzelle Ellis v. Haybe Ellis, 242 So. 2d 745 (Fla. 4th DCA 1971)
- Leeds v. C. C. Chem. Corp., 280 So. 2d 718 (Fla. 3d DCA 1973)