Lurtz v. Bank of N.Y. Mellon

PER CURIAM.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Howard H. Harrison, Judge; L.T. Case No. 502008CA035525XXXXMB.
Dustin A. Zacks of King, Nieves & Zacks, PLLC, West Palm Beach, for appellant. Brian K. Hole and Katherine M. Joffe of Holland & Knight LLP, Fort Lauderdale, for appellee.

PER CURIAM.

Appellant argues on appeal that the trial court erred in conducting a foreclosure trial before the case was at issue, in contravention to Florida Rule of Civil Procedure 1.440(a). Rule 1.440(a) states that “[a]n action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading.” Appellee concedes, and we agree, that the trial court improperly issued an order setting a non-jury trial and held a trial less than twenty days after the service of the last pleading in violation of Rule 1.440(a). Accordingly, we reverse and remand for a new trial in compliance with rule 1.440(a).

Reversed and Remanded.