First District Holds That Public Adjuster Solicitation Ban Is Unconstitutional

In Kortum v. Sink (1D10-2459), the First District reversed the trial court's decision and held that section 626.854(6), Florida Statutes (2008) "unambiguously bans all solicitation for 48 hours and that this restriction on commercial speech violates Article I, § 4 of the Florida Constitution under the standards of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980)."   The statute at issue "bans solicitation by public adjusters for a period of 48 hours."  The court stated:

During its 2007 special session, the Florida Legislature created the Task Force on Citizens Property Insurance Claims Handling and Resolution (Task Force) to make recommendations regarding the 2004-2005 hurricane claims of Citizens Property Insurance Corporation.  During its work, the Task Force became aware of the impact that public adjusters have on the insurance claims process following a hurricane. The Task Force identified abuses on the part of certain public adjusters and proposed legislation to revise the statutes governing public adjusters. Pertinent to this appeal, with respect to solicitation by public adjusters, the Task Force recommended that the legislature enact the following statutory provision:

A public adjuster shall not directly or indirectly through any other person or entity engage in face-to-face or telephonic solicitation or enter into a contract with any insured or claimant under an insurance policy until at least 72 hours after the occurrence of an event that may be the subject of a claim under the insurance policy unless contact is initiated by the insured or claimant.

The language of the statute enacted by the legislature, see § 626.854(6), Florida Statutes (2008), differed from the recommendation and provides as follows:

A public adjuster may not directly or indirectly through any other person or entity initiate contact or engage in face-to-face or telephonic solicitation or enter into a contract with any insured or claimant under an insurance policy until at least 48 hours after the occurrence of an event that may be the subject of a claim under the insurance policy unless contact is initiated by the insured or claimant.

(emphasis added). The legislature changed the language recommended by the Task Force by adding the phrase “initiate contact or” and reducing the temporal length of the solicitation restriction from 72 to 48 hours.

Kortum, a public adjuster, filed a complaint for declaratory and injunctive relief alleging that section 626.854(6) violates his constitutional rights to free speech, equal protection of the laws, and to be rewarded for his industry. Because we agree with Kortum that section 626.854(6) unconstitutionally burdens the commercial free speech rights of public adjusters, we do not address his further contention that the statute violates his right to equal protection of the law or his right “to be rewarded for industry” guaranteed by Article I, § 2 of the Florida Constitution.

Finally, the Court concluded as follows:

In sum, we are persuaded that the Department has failed to prove that section 626.854(6) is narrowly tailored to meet the state’s objectives. “While a statute regulating commercial speech need not be the least restrictive means of achieving the state’s asserted goal objective, it must be narrowly tailored to achieve the desired objective.” Cronin, 774 So. 2d at 875. The Department has not demonstrated that prohibiting property owners from receiving any information from public adjusters for a period of 48 hours is justified by the possibility that some public adjuster may unduly pressure traumatized victims or otherwise engage in unethical or unprofessional behavior. Nor has the Department demonstrated that the other provisions of section 626.854 and the Rules of Professional Conduct and Ethics governing the Florida Association of Public Insurance Adjusters governing public adjusters are insufficient to regulate unduly coercive or misleading solicitation by public adjusters.

You can view the briefs filed in this case by clicking on the following links:

• Initial Brief;
• Answer Brief;
• Amicus Brief filed by Florida Property and Casualty Association;
• Amicus Brief filed by Property Casualty Insurers Association of America;
• Reply Brief;

11th Circuit Affirms $400,000 Sanction After Counsel Filed Deposition Errata Sheet With 868 Changes

In Norelus v. Denny's Inc. (07-14077), a divided three judge Eleventh Circuit panel released a published opinion and affirmed the district court's order sanctioning the attorneys for the plaintiff.  Judge Carnes wrote the majority opinion. Judge Bowen, United States District Judge for the Southern District of Georgia, sitting by designation, concurred in the opinion with the exception of Section III.C.  The portion of the opinion that Judge Bowen did not concur in is found on pages 49 through 62 of the opinion.  Judge Tjoflat filed a dissenting opinion which begins on page 76.  The trial court's decision was affirmed, however, the portion of the majority opinion which lacked a concurring judge presumably carries the weight of a concurring opinion.  The opinion began:

No one’s memory is perfect. People forget things or get confused, and anyone can make an innocent misstatement or two. Or maybe even three or four. But not 868 of them. In this case, the plaintiff’s attorneys, William and Karen Amlong, filed a sixty-three page errata sheet containing 868 attempted changes to their client’s deposition testimony, which was the sole source of evidentiary support for their client’s claims. The district court exercised its authority under 28 U.S.C. § 1927 to sanction the Amlongs. This is their appeal, or more specifically their second appeal.

This is the second appeal as the trial court had previously entered a sanction order which was reversed with instructions.  See Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230 (11th Cir. 2007).

In this second appeal, the court stated that "n attorney multiplies court proceedings 'unreasonably and vexatiously,' thereby justifying sanctions under 28 U.S.C. § 1927, 'only when the attorney’s conduct is so egregious that it is ‘tantamount to bad faith.’”  Without even attempting to put words into Judge Carnes opinion, I interpret the opinion as having the biggest problem with the fact the the attorneys continued to represent the client, and pursue the same legal theories, after the filing of the errata sheet containing the 868 changes.  The court stated:

As the magistrate judge found and no one (with the possible exception of the dissenting judge on this panel) seriously contests, the improper submission of the massive errata document rendered the eight days spent on Norelus’ deposition a waste of time and money to say nothing of the time the attorneys were forced to spend on the issues created by the document itself. The Amlongs’ decision to press on with Norelus’ claims after the creation of the errata document wasted more time and money. Together, the submission of the errata document and the continued pursuit of Norelus’ claims afterwards unquestionably prolonged and multiplied the proceedings...... 

Still, like Ahab hunting the whale, the Amlongs relentlessly pursued the claims. All the while they blinded themselves to as much of the contradictory evidence as they could. They deliberately did not obtain the deposition testimony of any of Norelus’ co-workers who would have seen or heard something had anything improper occurred. They did not concern themselves with that testimony, according to Karen Amlong, because they assumed all of the witnesses, except for their client, were either lying or simply could not remember witnessing the gross sexual harassment inflicted on her.  When the truth was thrust in the Amlongs’ faces, they stubbornly ignored it and kept on litigating.

The portion of Judge Carnes' opinion which Judge Bowen did not join began: 

Up to this point, we have addressed the issues related to the errata document and the award of sanctions as those issues have been raised and defined since that document was submitted fourteen years ago. Our dissenting colleague, by contrast, has hatched a brand new theory—a theory that was never raised by the parties, never considered by the district court, and never argued to this Court. The theory that he has conjured up is that the errata sheet was really nothing more than a “letter” from Karen Amlong to defense counsel. It was not, he insists, an errata sheet because he thinks it was never presented to the court reporter or affixed to Norelus’ deposition as, he thinks, Federal Rule of Civil Procedure 30 requires. Dissenting Op. at 1. He is wrong on his premises and wrong in his conclusion.

The section later stated:

The first and only time this issue has been raised in the more than fourteen years since the errata document was submitted is now, by our dissenting colleague who wants us to share his novel vision and reverse the district court’s award of sanctions on that basis. Even if his vision had any factual basis, there are two walls of precedent standing against what he wants to do. The first one is our well established rule against reversing a district court judgment on the basis of issues and theories that were never presented to that court—issues not raised in the district court should not be considered on appeal.

Finally, the section concluded "Issues should not sprout like weeds in appellate opinions no matter how fertile the minds of the judges deciding the appeal. We could not reverse the district court based on the dissenting opinion’s new theory of the case, even if it had a factual basis, which it does not."

The final section of the majority opinion, which Judge Bowen did join, addressed whether a party can be awarded those fees and costs that actually stemmed from the sanctions proceeding itself.  The court stated:

This is the first time we have addressed whether a district court may include costs arising from the sanctions proceedings themselves in an award of § 1927 sanctions. Other circuits have tackled this issue in the closely related context of rules-based sanctions. Many of those courts have held that it is within the discretion of a district court to include within a sanctions award costs incurred in obtaining that award.

The court concluded that those fees and costs are awardable and stated:

We begin our analysis of what the statute permits where we always should: the statute’s plain language. See Nguyen v. United States, 556 F.3d 1244, 1250 (11th Cir. 2009). The plain language of 28 U.S.C. § 1927 establishes that, in making a sanctions award to a party, a court may include the “costs, expenses, and attorneys’ fees” that the party victimized by the sanctionable conduct incurred in obtaining the award. Id. After all, those costs are, in the statute’s terms, “incurred because of such conduct.” Id. If there were no sanctionable conduct there would have been no proceeding to impose sanctions. Because the costs arising from the sanctions proceedings were “occasioned by the objectionable conduct,” McMahan, 256 F.3d at 1128 (citing Peterson, 124 F.3d at 1396), a district court may include costs arising from the sanctions proceedings in the sanctions award. 

Because the statutory language is unambiguous, we could end our analysis there.

The opinion went on to discuss policy reasons why the costs incurred in prosecuting a sanctions motion are recoverable.  

The "dissent is organized as follows. Part I sets out Rule 30, explains the purpose of an errata sheet, and addresses how courts enforce Rule 30’s requirements pertaining to errata sheets. Part II initially establishes that Karen Amlong fully understood how, under Rule 30, an errata sheet becomes part of a deponent’s deposition and then explains that she did not intend the 'errata sheet' she sent defense counsel to comply with Rule 30 and become part of Norelus’s deposition. Part III establishes that defense counsel failed to comprehend this and, thus, erroneously concluded and represented to the court that the 'errata sheet' was part of Norelus’s deposition. In turn, part IV shows how defense counsel’s error led to the § 1927 sanctions at issue in this appeal. Finally, part V explains why, in light of the foregoing, levying these sanctions was improper."

Middle District Judge Revokes Pro Hac Admission Unless Local Counsel Is 12 Month Resident Of Florida

This was sent to me back in September and for whatever reason I did not put it up [I see that the South Florida Lawyers Blog did post it HERE].  In the order quoted below, United States Magistrate Judge David A. Baker required counsel who had previously been admitted pro hac vice to obtain local counsel that lives within Florida twelve months out of the year or the pro hac admission would be revoked.  The court stated:

The Court finds that there is no basis to revoke Mr. Sprinkle’s pro hac vice admission. However, the Court admonishes Mr. Sprinkle for his lack of candor in failing to disclose the Grievance Commission Request for Investigation filed against him. Moreover, Mr. Sprinkle chose as local counsel, an attorney who is not “resident in Florida,” Ernest I. Gifford, but has his primary residence in Michigan. Mr. Gifford is not a Florida resident within the meaning of the Local Rule and therefore cannot serve as local counsel for Mr. Sprinkle’s appearances in this Court. The fact that “Mr. Gifford considers himself to have dual residency in Florida and Michigan” does not make him a resident of Florida, when the main office of his law firm remains in Michigan, he votes in Michigan, and does not have a homestead in Florida. See Doc. 29. Mr. Gifford is not qualified to serve as local counsel in this case.

It is ORDERED that Plaintiff’s Motion to Revoke is GRANTED in part and DENIED in part and Defendant’s Motion for Sanctions is DENIED. Mr. Sprinkle’s pro hac vice admission is not revoked at this time, subject to his obtaining appropriate local counsel resident in Florida (twelve months out of the year) within 14 days of the date of this Order. 

Finally, the Court observes that an inordinate amount of time and effort have been devoted by counsel to what is an essentially extraneous matter. Going forward, counsel are admonished to concentrate on the merits of the litigation, leaving any issues of personality conflict, and to conduct themselves with the highest degree of professionalism.

You can view the entire order HERE.

Denial Of KPMG's Motion To Compel Arbitration of Madoff Claims Affirmed

Update: On November 7, 2011, the United States Supreme Court vacated the opinion discussed below. The Supreme Court's opinion is discussed HERE. The original post remains unchanged below:

In KPMG, LLP v. Cocchi, et al (4D09-4867 & 4D10-988), the Fourth District affirmed two orders entered by the trial court.  The first denied a motion to compel arbitration and the second denied a motion to dismiss on forum non conveniens grounds.  The facts were described as follows:

The plaintiffs are nineteen individuals and entities, most of whom are Florida residents, who bought a limited  partnership interest in one of three  limited  partnerships  – referred to collectively  here as the “Rye Funds.”  The limited partnerships invested with Bernard Madoff in his infamous Ponzi scheme and lost  millions of dollars.  The limited partnerships were managed  by Tremont Group Holding, Inc., and Tremont Partners,  Inc.  The plaintiffs sued the limited partnerships and the Tremont  defendants,  together  with  its  auditing  firm  KPMG.  As  to KPMG, the plaintiffs alleged causes of action for negligent misrepresentation, violation of the  Florida Deceptive  and Unfair Trade Practices Act (“FDUTPA”),  professional malpractice, and aiding and abetting a breach of fiduciary duty. 

The court concluded:

We affirm the order denying the motion to compel arbitration, because the arbitral agreement upon which KPMG relied would not apply to the direct claims made by the individual plaintiffs. We affirm the order denying the motion to dismiss for forum non conveniens, because neither the motion nor its attached affidavit, nor the argument at hearing, was legally sufficient to overcome the  strong  presumption in favor of the resident plaintiffs’ choice of forum. 

With regard to the arbitration issue, applying Delaware law, the court stated:

In Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1033 (Del. 2004), the Delaware Supreme Court established a test when analyzing whether an action by stockholders (or limited partners) was direct or derivative of the corporation/general partnership’s cause of action. The questions which must be asked are: 1) who suffered the harm, the corporation or the stockholders individually, and 2) who received the benefit of the recovery or remedy? Because the claims of negligent misrepresentation and violation of FDUTPA allege individual harm to the plaintiffs and involve torts directed at the individual limited partners, we conclude that the limited partners suffered individual harm....We therefore affirm the trial court’s denial of the motion to compel arbitration. 

With regard to the forum non conveniens issue, the court stated:

KPMG also moved to dismiss on forum non conveniens grounds, claiming that all of its activities occurred in New York where it audited the defendants. With its motion it filed a two-page affidavit of a senior manager, stating that in connection with its agreement to audit the various limited partnerships, it performed all of its work in New York. The trial court denied the motion, concluding that the affidavit was insufficient to carry KPMG’s burden of persuasion.  On appeal, KPMG argues, among other things, that the trial court applied an incorrect legal standard in ruling on the forum non conveniens issue. Even if we were to agree, we conclude that the motion and supporting affidavit were legally insufficient to warrant a change of forum.

The court then concluded:

Florida has adopted the doctrine of forum non conveniens in Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996), and it is now codified in Florida Rule of Civil Procedure 1.061(a)....A strong presumption favors a resident plaintiff’s choice of forum....The defendant seeking dismissal bears the burden of persuasion as to each factor....

***

In this case, the motion and the affidavit addressed only one private interest factor...Without addressing all of the factors of private interest, as well as factors of public interest, the motion, the affidavit and the hearing argument were decidedly inadequate to warrant dismissal of the action. The trial court cannot be said to have abused its discretion in determining that the motion and affidavit were insufficient to carry the burden for KPMG.

Judge Warner wrote the opinion and Judge Polen and Judge Farmer concurred.

Conflicting With The Second Circuit, Eleventh Circuit Holds Objections Must Be Made Even To Unhappy Judge

In United States v. Rodriguez (08-16696), the Eleventh Circuit disagreed with the Second Circuit and began its opinion as follows:

This case poses the question of whether there is a vindictive judge or cowardly counsel exception to the contemporaneous objection rule. Unless there is such an exception, the only issue that the appellant is pressing on appeal is barred for failure to object because she cannot meet the requirements of the plain error rule. Disagreeing with the Second Circuit, we hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it.

The opinion is twenty-two pages long and clearly discusses the issue in more detail.  The Second Circuit cases that the court disagreed with are: United States v. Leung, 40 F.3d 577 (2d Cir. 1994), and United States v. Kaba, 480 F.3d 152 (2d Cir. 2007).  The court disagreed for a number of reasons, including:

• "The first is that under settled law if a party does not move to recuse a judge on actual bias grounds, review is only for plain error.";
• "The second reason that we reject Rodriguez’s position, and the Second Circuit’s decisions on which it is based, is that they substantially undermine the important interests served by the contemporaneous objection rule. As we have explained, “The narrowness of the plain error rule is a reflection of the importance, indeed necessity, of the contemporaneous objection rule to which it is an exception.” United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998). Requiring an objection at trial “fosters finality of judgment and deters ‘sandbagging,’ saving an issue for appeal in hopes of having another shot at trial if the first one misses.”;
• "The third reason we reject Rodriguez’s position is that it is demeaning to both judges and attorneys. Judges know that it is the role and duty of attorneys to represent their clients zealously and object to what they perceive to be errors or potential errors. Many objections have as their premise that the judge has violated, or but for the attorney’s intervention would violate, some law, rule of procedure, or right of the attorney’s client. That is the stuff of which objections are made. To suggest that judges, whose solemn duty it is to apply the law fairly and impartially to all parties before them, would vindictively respond to an attorney’s objection by punishing the client is demeaning to the judiciary. And to suggest that lawyers, who perceive a valid basis for objection, would cower in their seats, fearing retribution from the bench if they do object, is demeaning to the bar. We reject any vindictive judge or cowardly counsel exception to the contemporaneous objection rule."

After discussing a number of other issues, the Eleventh Circuit discussed the Supreme Court's opinion last year in Caperton v. Massey.  Caperton was previously discussed on this blog HERE, HERE, and HERE.  I only single out the discussion about Caperton as Caperton received a significant amount of attention.  The court stated:

The Supreme Court has decided that in at least some situations the probability of actual bias is enough to violate due process. In Caperton v. A. T. Massey Coal Co., ___U.S.___, 129 S.Ct. 2252 (2009), the Court held that a state supreme court justice was required to recuse himself from a litigant’s case where that litigant had made significant contributions to the justice’s campaign for office. Id. at 2256–57. The Court’s holding, however, was narrow. See id. at 2265. It noted the “extreme facts” of that case and limited its holding to the “extraordinary situation” where the “probability of actual bias rises to an unconstitutional level.”  Id. There is no probability of actual bias in this case. In fact, Rodriguez concedes that there was no actual bias. So, she has failed to meet the second requirement of the plain error rule.

"Knowledge and Belief" Is Insufficient For Consideration At Summary Judgment Hearing

In Ballinger v. Bay Gulf Credit Union (2D09-4561), the Second District reversed a final judgment based upon the contents of the verified complaint.  Interestingly, the court found "no error in two of the issues raised by" the appellant.  However, concluded that "we must reverse because the verified complaint was insufficiently pleaded and, therefore, final summary judgment was improvidently entered."

In "verified complaint, a Bay Gulf employee....stated that [she] read everything and that the facts stated were "true to the best of my knowledge and belief."  The court stated:

We acknowledge that "[a] verified complaint may serve the same purpose as an affidavit supporting or opposing a motion for summary judgment."...."However, in order to be so considered, the allegations of the verified complaint must meet the requirements of the rule governing supporting and opposing affidavits."....In this case, the verification reflects it was not based on Lenth's personal knowledge.  Bay Gulf asks this court to construe the verification as if it were based on Lenth's personal knowledge because the verification does not say it was based on Lenth's "information and belief" but, rather, states it was based on Lenth's "knowledge and belief."  However, we decline to impose such a construction because the fact that the verification included the word "belief" indicates it was not based on Lenth's personal knowledge.  And, in fact, it is apparent from the record that Lenth could not state she had personal knowledge of the loan documents in question.  The qualified verification here fails to meet the requirements of rule 1.510(e) and, therefore, should not have been considered by the trial court on a motion for summary judgment.  

Judgment Reversed Due To Failure To Allow Discovery

Update: On November 30, 2011, the opinion discussed below was withdrawn and an en banc opinion released in its place. The en banc opinion is discussed HERE.


In Alvarez v. Cooper Tire & Rubber Company (4D08-3498), the Fourth District reversed the trial court's judgment entered after a jury verdict and remanded for a new trial because the plaintiff was not allowed to conduct sufficient discovery. The opinion began:

Relevant  evidence  in  civil  cases — that  is,  the acceptable knowledge base of  facts  for  the  jury — is  found  in an aggregate of historical  facts, data, information, objects and opinions that the law allows the parties to place before the finder-of-fact to decide the case.  To assist the parties in assembling all the knowledge fairly needed to prove a cause of action or defense, the rules establish a pretrial process called discovery, which (as its name  implies) is also meant  to afford a means of apprehending that which they do not know.  Hence, the process begins with a wide sweep, gathering many kinds of knowledge only possibly germane (if at all), yet capable  of  leading  to  admissible  trial  evidence.  At  discovery’s  end, the accumulated knowledge is distilled into  the evidence the parties can  lay before the jury. 

When this discovery  is not allowed  to have  its  intended scope — for example,  when  one party  is  blocked  from  ascertaining and acquiring from  the other party unprotected, relevant  information and data that  is admissible at trial — the sum of knowledge placed before the jury will be unfairly deficient, hence misleading.  The whole structure of the trial will be faulty.  The jury’s basis for resolving the facts will be tilted against the party denied  that access.  Trial  then will be an expedition on an errant course.  Because  the  possible  factual  base  for  the  jury  has been unreasonably curtailed peremptorily, a jury’s resolution of  the  facts will be unreliable, and its verdict untrustworthy.

The opinion provided a detailed account of the specific facts at issue and why it was error to refuse the plaintiff the opportunity to conduct the discovery. The opinion concluded:

As we  saw  in  the  beginning,  the  apparatus  of  civil  litigation  has incorporated into its structure the right of all parties to discovery of facts, information and  data  involving  the  subject  matter  of  the  dispute.  Denying  one of  the  parties  that  discovery — especially  as  to  essential evidence critical to proving a claim or defeating a defense — is a manifest injustice.  Within the meaning of the harmless error law, the denial here was  considerably prejudicial and perpetrated a substantial  injustice  on the plaintiff in this litigation.  

Upon remand, discovery  will  have  to  resume, governed  by  the holdings  of  this  opinion.  Proper  and full  discovery will  then  require  a new trial, at which both sides will have the right to lay all their relevant, admissible evidence before the jury.

The court's entire opinion is below:

Alvarez v. Cooper Tire & Rubber Company (4D08-3498)

Is It Proper To Cite To A Shortened URL In An Appellate Brief?

The brief below was filed in the Second District yesterday.  As you can see, at least 17 times the brief cites to a web address shortened through the "Google url shortener" which significantly shortens web addresses. For example, the Google url shortener changes  "http://www.floridalegalblog.org/2010/12/fourth-district-on-invited-error-and.html" to "http://goo.gl/fb/HceD7."  

It certainly looks better to cite to the shorter address. and it makes formatting significantly easier.  However, is it proper? It does not indicate who is actually hosting the web site and, technically, is not the source of the information cited. A website can always be taken down, however, when you cite to a shortened address you have the potential that the actual web site stays available but the shortener is not.  The New York Times had a service Nyturl, however, the New York Times shut down the service due to abuse and all links became unavailable.  THIS article stated:

Enter NytUrl, the ‘trusted’ URL shortener for NYtimes.com articles. Update: The site and all the redirects were taken down “due to abuse.”

I am not sure if there is an actual answer to the question in the title of this post or not.

Trial Court Has Discretion To Schedule Foreclosure Sale

In LR5A-JV v. Little House (5D09-3857), the Fifth District affirmed the trial courts order scheduling a foreclosure sale.  A prior decision in the same case can be found at the following cite: LR5A-JV, LP v. Little House, LLC, 998 So. 2d 1173 (Fla. 5th DCA 2008).  In 2008, the Fifth District concluded its opinion by stating "Accordingly, we AFFIRM the final judgment of foreclosure and order of clarification and REMAND with instructions to proceed to foreclose the superior mortgage of LR5A-JV."  

After the case was remanded, the condominium association filed a motion in the trial court requesting that the trial court schedule the foreclosure sale.  Over the objection of the judgment holder, the trial court granted the motion and scheduled the sale.  The judgment holder argued that "the Association, as a junior lien holder, cannot demand that a foreclosure sale date be set, and the trial court erred as a matter of law in setting the date for the judicial sale. The Association counters that section 45.031(1), gives the trial court the ultimate authority to order a judicial sale."  The court "agree[d] with the Association."

The court stated that the statutes "clearly required the trial court to set a judicial sale date between 20 to 35 days after entry of the final judgment or order directing a judicial sale, but allows an extension with the plaintiff’s consent."  Further, "Florida decisional law reflects that the matter of fixing the time for a judicial sale is set by statute, but that the trial court has reasonable discretion within the statutory framework to set or reset the date for such sale."

The court also noted the Florida Supreme Court's 2010 amendment to the Florida Rules of Civil Procedure relating to motions to cancel foreclosure sales.  The court stated:

the Florida Supreme Court adopted amendments to the rules of civil procedure relating to mortgage foreclosures. In re Amends. to the Fla. R. of Civ. P., 35 Fla. L. Weekly S97 (Fla. Feb. 1, 2010). Included in these amendments is Form 1.996(b), entitled “Motion to Cancel and Reschedule Foreclosure Sale,” which sets out a list of reasons for cancellation of a scheduled judicial sale, and provides, “If this Court cancels the foreclosure sale, Plaintiff moves that it be rescheduled.” In other words, the supreme court, in adopting the form, apparently did not contemplate that a judicial sale would be left in limbo.

The Florida Supreme Court issued a new opinion on the a different subsection of the rule just yesterday, December 9, 2010, which was discussed HERE.

Ultimately, the court held that the trial court, not the judgment holder, had the ultimate discretion to schedule the sale. I believe the fact that the case was remanded in 2008 with instructions to conduct a sale also played a factor.  The judgment holder was attempting to never schedule the foreclosure sale which seems to present a different circumstance from the cases discussing a judgment holders attempts to reschedule a foreclosure sale.  Those cases hold that a motion to postpone a foreclosure sale should be granted absent “extraordinary circumstance.”  A Mortg. Co. v. Bowman, 642 So. 2d 123, 124 (Fla. 4th DCA 1994); see also Chemical Mortg. Co. v. Dickson, 651 So. 2d 1275, 1276 (Fla. 4th DCA 1995); LaSalle Bank Nat. Ass’n. v. Alicea,  35 So. 3d 986, 989 (Fla. 5th DCA 2010); U.S. Bank Nat'l Ass'n v. Bjeljac, 17 So. 3d 862 (Fla. 5th DCA 2009); and Wells Fargo Bank, N.A. v. Lupica, 17 So. 3d 864 (Fla. 5th DCA 2009).