Mandamus as the proper vehicle to quash an order setting trial in violation of Rule 1.440.
If the case is not at issue, a trial court is not permitted to set the case for trial under rule 1.440. The Second District in Gawker v. Bollea held that where a trial court violates the mandates of rule 1.440, a party may petition the appellate courts for a writ of mandamus whose purpose is to "enforce the respondent's unqualified obligation to perform a legal duty." This well-reasoned opinion has outlined the requirements to obtain the writ and discussed why an adequate remedy is unavailable on plenary appeal or by certiorari.
The court reasoned that "As we have established, a party is absolutely entitled to strict conformance with the terms of rule 1.440, including its mandated fifty-day hiatus between the service of the last pleading and the trial date. Whereas a writ of mandamus can preserve and effectuate this right in full, an appeal following entry of final judgment is inherently incapable of doing so because the appellant already will have been forced to trial in violation of the rule." The court noted that plenary appeals and certiorari do not afford relief commensurate with that available by writ of mandamus. In plenary appeals a party must obtain a reversal and retry the case on remand after the party had already endured a trial. Another significant reason a plenary appeal is an inadequate remedy is that a party must preserve the issue and show prejudice. Like in plenary appeals, certiorari does not provide the same relief as in mandamus. "The decisional rules governing certiorari proceedings are even more restrictive than those at play in appeals." Thus, the court concluded that mandamus is the appropriate remedy for violation of rule 1.440.
Use mandamus to enforce rule 1.440
Because the decisional rules governing plenary appeals and certiorari are more stringent than those governing mandamus, appellate litigants and practitioners should use mandamus to enforce rule 1.440 mandates.