A PARTY WHO BELIEVES THE TRIAL COURT HAS SET A TRIAL IN AN UNTIMELY MANNER, MUST OBJECT
Cruz v. Clyne, 49 FL A. L. Weekly D2093 (FLA. 3rd DCA Oct. 16, 2024):
The plaintiff’s lawsuit was pending for over six years when on March 29, 2023, the plaintiff filed a notice of trial readiness.
On April 24, 2023, the trial court set the matter for trial on May 15, 2023, violating Rule 1.440(c)’s requirement that the trial be set no sooner than 30 days from the date of the notice.
The plaintiff filed no written objection to the trial date and instead issued subpoenas for trial testimony. When the trial court convened for the trial, the trial court announced its intention to dismiss the case because the plaintiff failed to appear. However, his counsel still failed to object pursuant to 1.440.
Instead, counsel requested that the trial court either proceed in the plaintiff’s absence or that the lower court continue the trial. Under those facts, the court found the plaintiff waived his objections.
The plaintiff also argued that the trial court committed a reversible error in failing to make express written findings that the plaintiff’s failure to appear was done willfully or with deliberate disregard of the court’s authority. As the plaintiff also failed to raise this issue timely in a Rule 1.530 motion for rehearing, he waived his right to appeal the decision, resulting in affirmance of the final judgment against the plaintiff.