EDWARD LEEDS, APPELLANT,
v.
C. C. CHEMICAL CORP., A DELAWARE CORPORATION, ET AL., APPELLEES
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This appeal addresses whether a civil case is at issue when the last responsive pleading is filed simultaneously with a motion to strike the opposing party's pleading. The Florida appellate court held that a case is not at issue while such strike motions remain undisposed of, and therefore the trial court erred in setting the case for pretrial conference and trial.
A cause is not at issue while motions directed to pleadings remain undisposed of. Until a cause is at issue, it cannot be set for pretrial conference or trial under Rule 1.440 F.R.Civ.P.
[1] A cause is not at issue while motions to strike pleadings remain undisposed of.
[2] A cause may not be set for pretrial conference or trial until it is at issue.
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Join FLexlaw to unlock all legal intelligence“the cause is not at issue while such motions directed to pleadings remain undisposed of”
The court's holding on the central legal issue—that pending strike motions prevent a case from becoming at issue
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Join FLexlaw to unlock all legal intelligenceChemical filed suit against Leeds and others alleging a written agreement for sale of assets with a rescission clause, claiming defendants appropriate…
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The appellant Edward Leeds was one of the defendants below. The appellee C. C. Chemical Corporation, herein referred to as Chemical, filed an action against Edward Leeds, Michael Leeds, Rhea Leeds and Mercury Chemical Co., Inc., herein referred to as Mercury.
The amended complaint contained six counts. The first count alleged a written agreement between Mercury and Pollution Control Industries, Inc., herein referred to as PCI, for sale of the assets and business of the former to PCI, with provision for the transfer to be made to a corporation to be formed by PCI: that the corporation (Chemical) was formed and transfer was made; that it was agreed the transaction would be rescinded if a certain volume of business was not done in the first year; that the goal was not attained; that the defendants had appropriated to themselves the assets of the plaintiff corporation, rendering it unable to make full restitution on rescission; and that it had surrendered its inventory and the business to the defendants. The plaintiff prayed for a declaration that rescission had been made; for defendants to be required to return to plaintiff certain corporate stock; and for damages. In additional counts the defendants were charged with fraud and misrepresentation in the transaction, and damages were sought against the defendant Edward Leeds upon charging him with breach of a contract of employment with the plaintiff.
The defendant Mercury (seller) filed an answer to the amended complaint. The answer contained certain affirmative defenses, and included therein was a counterclaim by Mercury against the plaintiff. *719The plaintiff filed an answer to Mercury’s counterclaim, and also filed a motion to strike the counterclaim. That motion to strike has not been disposed of. Later the plaintiff filed an answer to affirmative defenses contained in the answer of Mercury, and also filed a motion to strike certain such affirmative defenses from Mercury’s answer. That motion has not been disposed of.
Answers also were filed by individual defendants, with the answer of Edward Leeds containing a counterclaim. Plaintiff filed answers to affirmative defenses contained in such answers, and filed an answer to and a motion to strike the counterclaim of the defendant Edward Leeds. That motion has not been disposed of.
On March 27, 1973, the court set the cause for trial on June 14, 1973, on count one. On March 28, 1973, the court entered an order setting the cause for pretrial conference on July 2, and setting the cause for trial for September 10, 1973, on counts two and six of the amended complaint and on the defendants’ counterclaims. The defendant Edward Leeds filed a notice of appeal from both of said orders.
The determinative question is whether a cause is at issue where, with the last responsive pleading required under the r,ules, there also is simultaneously filed a motion to strike all or part of the pleading to which such responsive pleading is directed. Upon resolving the arguments of the parties relating thereto, we hold that the cause is not at issue while such motions directed to pleadings remain undisposed of. In holding to the contrary the trial court was incorrect.
Until the cause is at issue it may not be set for pretrial conference or for trial. See Rule 1.440 F.R.Civ.P., 30 F.S.A.; Ellis v. Ellis, Fla.App.1971, 242 So.2d 745.
The orders appealed from are reversed.
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Aleida Alech v. Gen. Ins. Co., 491 So. 2d 337 (Fla. 3d DCA 1986)…was an undisposed-of defense motion to strike the plaintiff’s punitive damages claim [and paragraphs 25, 27, and 28 of the complaint] contained in the defendant’s answer, and, accordingly, the case was not at issue. See Leeds v. C.C. Chemical Corp., 280 So. 2d 718, 719 (Fla. 3d DCA 1973) (“The determinative question is whether a cause is at issue where, with the last responsive pleading required under the rules, there also is simultaneously filed a motion to strike all or part of the pleading to which such re…
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Kuvin v. Keller Ladders, Inc., 797 So. 2d 611 (Fla. 3d DCA 2001)…ai-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 reversed in Yoder, 785 So. 2d at 679. For this reason, Schussel v.…
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Hodge v. Kidder Peabody & Co., 473 So. 2d 845 (Fla. 4th DCA 1985)…e 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 certio-rari. It reversed the trial court, without [*846] stating the basis for its jurisdictio…
Authorities Cited
- Uzelle Ellis v. Haybe Ellis, 242 So. 2d 745 (Fla. 4th DCA 1971)