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Nicholson-Kenny Capital Management12/14/2005
of the motion for trial in court-ordered non-binding arbitration is to hasten the litigation along, make the parties evaluate the award, and either accept it or complete the litigation through trial. We analogize this to the interpretation this court made of section 39.506(3), Florida Statutes (2001), in A.J. v. Department of Children and Families, 845 So. 2d 973 (Fla. 4th DCA 2003). That section provides for a default of a parent who fails to appear at a scheduled adjudicatory hearing for dependency. We noted:
The purpose of a default provision such as that in section 39.506(3) is to ensure that the object of the dependency petition "is not defeated by the parent's neglect of the proceeding." [Citations omitted]. Section 39.506(3) "enables the trial court" to bring a dependency case "to conclusion even if the parent has chosen not to participate." Id. The purpose of the statute is not to inject "gotcha" practices into the dependency process.
Id. at 976.
In the same manner, the motion for trial under rule 1.820 puts the other side on notice that it should be prepared for trial. It is a procedural device to hasten the end of litigation. It too should not be interpreted to introduce "gotcha" tactics into litigation.
This case is also analogous to Gardner v. Broward County, 631 So. 2d 319 (Fla. 4th DCA 1994). There, a personal injury plaintiff filed a statutory notice of claim against the county but failed to include her husband's loss of consortium claim. During the litigation, the plaintiffs served a request for admission which asked the county to admit that plaintiff wife had satisfied all of the notice requirements of section 768.28(6), Florida Statutes. Although time still remained under the statute in which to correct the error of not naming the husband, the county objected to the request as relating to facts in dispute and calling for a legal conclusion. It was not until the county moved for a directed verdict at trial that it specifically pointed out the defect in the notice. The trial court granted the motion, and the husband appealed.
We held that the county was precluded from raising the issue because it had failed to deny with particularity the occurrence of a condition precedent as required by Florida Rule of Civil Procedure 1.120(c). We found that this failure amounted to a waiver of the assertion of the right after the statutory period for compliance had run. We also noted:
In Cabot v. Clearwater Construction Co., 89 So.2d 662, 664 (Fla.1956), Justice Thornal, speaking for the court after adoption of the Rules of Civil Procedure, said:
No longer are we concerned with the "tricks and technicalities of the trade". The trial of a lawsuit should be a sincere effort to arrive at the truth. It is no longer a game of chess in which the technique of the maneuver captures the prize.
And as Judge Schwartz said in Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979), the "'gotcha!' school of litigation" will not be tolerated.
631 So. 2d at 321; see also Charter Review Comm'n of Orange County v. Scott, 627 So. 2d 520 (Fla. 5th DCA 1993), quashed on other grounds, 647 So. 2d 835 (Fla. 1994) (holding that party waived compliance with Florida Rule of Civil Procedure 1.440, regarding setting of trials, because it failed to raise the issue to the trial court and voluntarily proceeded with the hearing without compliance).
Similarly, in this case the appellees' attorneys' words, actions, and conduct led Nicholson's attorney to believe that they assented to its request for a trial de novo, as reflected in its filed notice to set the pretrial conference in accordance with th
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