SAMUEL GLEN COLSON, APPELLANT,
v.
CAROL SCROGGINS; CHARLIE MACON, IN HIS CAPACITY AS DIRECTOR OF THE DIVISION OF WORKERS' COMPENSATION, STATE OF FLORIDA, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY; B. TRUCKING, F/K/A BELFORD TRUCKING, INC.; ROSEMARY ROSSER, AS PERSONAL REPRESENTATIVE OF DECEASED THOMAS G. ROSSER; DARWIN RAYMER; RUTH RAYMER; AND FLORIDA SELF-INSURERS GUARANTY ASSOCIATION, INC., APPELLEES
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Appellant Colson appealed a final judgment distributing a workers' compensation security bond, arguing the trial court erred by conducting the final hearing without proper notice and without entering a required court order setting the trial date. The court reversed because the trial court violated the mandatory procedural requirement of Florida Rule of Civil Procedure 1.440(c) by allowing parties to schedule the hearing informally rather than through a court order.
Yes. The trial court violated the mandatory procedural requirement of Rule 1.440(c) by failing to enter an order fixing a date for trial and by allowing the hearing to be scheduled informally through notice by counsel rather than through a court order. The informal practice of scheduling nonjury matters by reserving the date on the judge's calendar and providing notice to opposing counsel is disapproved.
[1] A trial court must enter an order fixing a date for trial when it finds an action ready to be set, and the trial must be set not less than 30 days from the service of the…
[2] Florida Rule of Civil Procedure 1.440(c), requiring a court order to set a trial date and a minimum notice period, is mandatory and applies to final hearings.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. The trial shall be set not less than 30 days from the service of the notice for trial.”
The mandatory language of Rule 1.440(c) requiring a court order to fix trial dates, which the trial court failed to follow.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceScroggins filed a notice scheduling a final hearing for October 8, 1991, which was not received by Colson's counsel. Colson's counsel did not attend t…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
This cause is before us on appeal from a final judgment equitably distributing among the various claimants a bond held by the Department of Labor and Employment Security (DLES) as security for workers’ compensation benefits. Appellant contends, inter alia, that the trial court erred in conducting a final hearing without proper notice as required by Florida Rule of Civil Procedure 1.440(c).
On October 3, 1991, Scroggins filed with the court and opposing counsel a notice scheduling final hearing for October 8, 1991.1 The notice was not received by Col-son’s counsel, who did not attend the final hearing. There was no order by the court setting the cause for trial pursuant to Florida Rule of Civil Procedure 1.440(c).
Upon learning that final hearing had been conducted, Colson filed a motion for rehearing with supporting affidavit. The court denied the motion for rehearing and entered final judgment on October 29, 1991.
Florida Rule of Civil Procedure 1.440(c) states in pertinent part:
If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. The trial shall be set not less than 30 days from the service of the notice for trial.
This rule has been held mandatory and applicable to final hearings as well as to trial. See, e.g., Rivera v. Rivera, 562 So. 2d 833 (Fla. 1st DCA 1990).
We have previously “disapproved the local procedure of parties scheduling nonjury matters simply by having the trial date and time reserved on the judge’s calendar, followed by notice furnished by counsel to the opposing parties or their counsel.” Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1986), citing, Padgett v. First Federal Savings & Loan Association of Santa Rosa County, 378 So. 2d 58 (Fla. 1st DCA 1979); Rivera, supra.
Accordingly, the judgment is reversed and the cause remanded for proceedings consistent herewith.
BOOTH, SMITH and BARFIELD, JJ., concur. . The only issue remaining was whether there should be a reduction of Scroggins’ interest in the security bond and corresponding increase in the other claimants' interest, by virtue of Scrog-gins’ having recourse against Florida Self-Insurers Guaranty Association, Inc.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Simpson v. Simpson, 700 So. 2d 170 (Fla. 4th DCA 1997)…e set less than 30 days from notice for trial, required reversal of declaratory judgment terminating husband’s parental rights). This rule has been held mandatory and applicable to final hearings as well as to jury trials. See Colson v. Scroggins, 606 So. 2d 472, 473 (Fla. 1st DCA 1992). In the instant case, the notice of hearing was filed July 8, noticing a hearing to be held on July 15. This notice clearly failed to comply with the 30 day requirement of rule 1.440(e). STONE, C.J., and WARNER and PARIENT…
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Vaos v. Dorothea E. Vaos, 683 So. 2d 677 (Fla. 4th DCA 1996)…itionally, the attorney’s notice setting final hearing was in violation of Florida Rule of Civil Procedure 1.440(c). The notice was not sent by the court, nor did it allow at least thirty days from service for the final hearing. Colson v. Scroggins, 606 So. 2d 472, 473 (Fla. 1st DCA 1992); S.W.T. v. C.A.P., 595 So. 2d 1084,1085 (Fla. 4th DCA 1992); Rivera v. Rivera, 562 So. 2d 833 (Fla. 1st DCA 1990). Nothing in this record demonstrates that appellant waived compliance with rule 1.440(c). See Roggemann v. Bos…
Authorities Cited
- Rodger H. Bennett v. Cont'l Chems., Inc., 492 So. 2d 724 (Fla. 1st DCA 1986)
- Padgett v. First Fed. Sav. & Loan Ass'n OF Santa Rosa Cnty., 378 So. 2d 58 (Fla. 1st DCA 1979)
- Rivera v. Lucinda Elaine Rivera, 562 So. 2d 833 (Fla. 1st DCA 1990)