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RES GESTAE

THE OFFICIAL PUBLICATION OF THE LEE COUNTY FLORIDA BAR ASSOCIATION

OCTOBER 2013

And Justice for All Pro bono benefits everyone

Opening Salvo

The 2010 Alimony Statute Amendment SERVING THE CITIZENS AND LEGAL COMMUNITY OF LEE COUNTY SINCE 1949


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Contents features

18

departments

Be the One in Someone’s Life

by Sara Fitzpatrick Comito

24

And Justice for All

Pro Bono Committee empowers clients and community

Letter from the President

8

Letter from the Editor

Ethel Wells on learning from service

6

by Sara Fitzpatrick Comito

by Mary C. Evans, Esq.

by Nanci DuBois

10 100 Club Members 12 Ethics Korner

Cloud computing, real estate transaction funds and more by Jason Hunter Korn

14 Side Bar

isers Our advert BA. LC e support th r best to s do ou Please let’ m in return! e support th

Reflections on the fiftieth anniversary of Gideon v. Wainwright by Dean Eugene Milhizer

16 Family Law Matters

Opening salvo

by Luis E. Insignares, Esq.

20 The Dish List

Where to meet and eat

21 The Dish BurgerQue

26 Community Connection

24 26

The Foundation for Lee County Public Schools, Inc. by Sara Fitzpatrick Comito

28 Legal Lens

Social scene photos by Claudia Volk & Jim Jett

30 On the Bench

Hon. John S. Carlin

31 From the Bar

Michael Beckman, Esq.

32 Terry’s Take on Things

28

I am no “icon!”

by T. Terry Rankin, Jr., Esq.

33 Legal Briefs

News and happenings

41 Calendar of Events

re s g e s ta e

THE OFFICIAL PUBLICATION OF THE LEE COUNTY FLORIDA BAR ASSOCIATION

239.334.0047 resgestae@leebar.org

Staff Box

PUBLISHER Connie Ramos-Williams 239.690.9840 EXECUTIVE EDITOR Nanci DuBois 239.334.0047 ASSOCIATE EDITOR Sara Fitzpatrick Comito CREATIVE DIRECTOR April Bordeaux LAYOUT AND DESIGN Kat Godina ADVERTISING DIRECTOR Linda Fiore 239.690.9840 CONTRIBUTING WRITERS Sara Fitzpatrick Comito Nanci DuBois Mary C. Evans, Esq. Marshall T. Bower, Esq Luis E. Insignares, Esq. Jason Hunter Korn, Esq. Dean Eugene R. Milhizer T. Terry Rankin, Jr., Esq. BILLING INQUIRIES 239.334.0047 Res Gestae is published monthly by CONRIC Publishing in partnership with Lee County Bar Association. All editorial, advertising and photos may be submitted for consideration through email to: resgestae@leebar.org. We make every effort to ensure the accuracy of the information published, but cannot be held responsible for any consequences arising from omissions or errors. Opinions expressed by our writers and advertisers are not necessarily opinions shared by the LCBA, Res Gestae, or CONRIC Publishing. On The Cover: Audrey Singleton and Kathleen Oppenheimer Berkey Cover Photo: Kat Godina Copyright© 2013. Lee County Bar Association, Inc. All Rights Reserved. No portion of the publication may be reproduced in part or in whole without prior written permission of the Lee County Bar Association. To inquire about such permission, please contact Nanci DuBois, Executive Director of the Lee County Bar Association at info@leebar.org.

4

RES GESTAE | October 2013


$2,270,000 motorcycle accident $4,500,000 fall accident $1,000,000 fall at hotel $850,000 truck accident $500,000 car accident $500,000 victim of drunk driver


Note from the President Ladies and Gentleman cover your ears, I am about to use the F word. A word I scarcely use because I find it disgusting and unladylike. A word so offensive I can barely even think it. A word so reviled I only use it when life depends on it. That’s right Dear Reader, I’m talking about Football. The mere mention of that F word makes me want to use a different F word. Why? Because football is a big fat interruption of life. How? Simple. Imagine a family of three, out for a morning ride to the local flea market to nose around and buy cheap sunglasses. It’s a lazy Saturday morning and everyone is relaxed and enjoying themselves, UNTIL…my husband says, “let’s go, I need to get home.” “But why?” I ask with sincerity. “Because I want to see the kick-off!” Ah. Before I have a chance to process that a stupid football game is ruining my day, he says: “Get it and let’s go.” Words cannot express what happens to my blood pressure when I hear that phrase. And, this time, he used my most hated phrase in conjunction with my most-hated sport. Not a good career move. I wanted to show him a kickoff. I don’t just hate football because it has ruined so many of my weekends, I also hate it because it turns husbands into zombie nutjobs. As soon as the kicker kicks that stupid little ball my husband’s ability to hear (nevermind actually listen) disappears. *poof* I’m an invisible mute. (Ah, what my husband wouldn’t give to REALLY be able to mute me…but…I digress.) On top of sudden hearing loss, my intelligent, relatively calm husband turns into a raving lunatic - jumping out of his chair, screaming game-winning advice at the television. NEWSFLASH: THEY CAN’T HEAR YOU. As much as I think football is stupid, I will watch a game to be social with everybody. I love to entertain friends and family in our home and I enjoy preparing food for our guests. I could care less about the score (assuming Dallas is losing, that is) as long as my guests are enjoying themselves. In fact, my favorite part of the job as President of the Bar Association is the opportunity to socialize with my colleagues. I truly believe that if we get to know each other on a social level, we will be more effective and professional on a business level. Think about it, isn’t it easier to tell a colleague with whom you are friends, or friendly, that you don’t agree with her position? Yep, it is. It’s kind of funny, who knew the greatest reason to be active in the Bar Association would be the F word? RG

Mary C. Evans, Esq. mary@maryevanslawyer.com | (239) 226-1062 6

RES GESTAE | October 2013

LEE COUNTY BAR ASSOCIATION ADMINISTRATIVE TEAM EXECUTIVE DIRECTOR Nanci G. DuBois EXECUTIVE ASSISTANT Lisa Poulin LAWYER REFERRAL & PRO BONO COORDINATOR Ghaylene Reyes

EXECUTIVE COUNCIL PRESIDENT Mary C. Evans, Esq. VICE-PRESIDENT John D. Agnew, Esq. SECRETARY Anne Dalton, Esq. TREASURER Scott Atwood, Esq. MEMBER-AT-LARGE Kelly Fayer, Esq.

YOUNG LAWYERS DIVISION PRESIDENT John Miller, Esq.

COMMITTEES HISTORY E. Bruce Strayhorn, Esq. & Jenna Persons, Esq. LAW RELATED EDUCATION Jaime Maurer, Esq. & Scott Atwood, Esq. LAW WEEK Hon. John S. Carlin LIBRARY Robert L. Donald, Esq. MOCK TRIAL Mary C. Evans, Esq. PAST PRESIDENT Karla Y. Campos-Andersen, Esq. PRO BONO Audrey Singelton, Esq. & Katie Berkey, Esq. MEMBERSHIP Carlos Kelly, Esq. SOCIAL EVENTS Amanda Mitteer-Bartley, Esq. & Theresa Daniels, Esq. TECHNOLOGY Michael E. Chionopoulos, Esq.

PRACTICE SECTION CHAIRS ALTERNATIVE DISPUTE RESOLUTION Anne Dalton, Esq. APPELLATE LAW Margaret White-Small, Esq. CRIMINAL LAW Keith Upson, Esq. REAL PROPERTY, PROBATE & TRUST LAW Kenneth Kemp, Esq. GENERAL CIVIL & BUSINESS LITIGATION J. Jeffrey Rice, Esq. TORT LITIGATION Preston John (PJ) Scheiner, Esq. FAMILY LAW Rana Holz, Esq. & Jo Ellen Kane, Esq. LAND USE & GOVERNMENTAL LAW Russell Schropp, Esq.


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Letter from the Editor With October, we look forward to the Pro Bono Service Awards Luncheon for our members to receive awards and applaud the commitment to providing free legal services to those in need, in Lee County. This month, the ceremonies and luncheon will once again be held in the beautiful gallery surroundings of the Sidney and Berne Davis Art Center, starting at 11:45 on October 18th.

AD DIRECTORY Alliance Financial/Michelle Hudson

23

Allied Business Solutions

22

Aloia, Roland & Lubell, LLP

IBC

Ave Maria School of Law

42

Boyle, Gentile, Leonard & Crockett, PA

40

Buschbom Mediation

11

Business Observer

22

Please join us, as we honor those who have taken the time to be THE ONE, following the initiative program to serve ONE client, ONE case, ONE attorney at a time. That’s a minimal request, and we’d like to be THE ONE Bar Association that can boast 100% participation by our attorney members. If your name isn’t listed in this month’s Program for the Pro Bono Service Awards, we hope it will be there by next year’s ceremony! Call us to connect with a case today. (239) 334-0047. Special thanks to attorneys who have already connected with us and offered their services in specialized practice areas.

Coast Chiropractic Centers, Inc

19

CONRIC PR & Marketing | Publishing

30

Fort Myers Court Reporting

13

So, let’s talk about what service means to you. Are you involved in any service organizations locally or nationally? Would you like others to know more about what’s gotten you actively helping others? Send us a message at resgestae@ leebar.org to be considered for a feature on your participation and your service organization.

Fowler White Boggs

40

Fried and Fried

35

Garvin Law Firm

37

Global Investigative Group

39

Next month, we have Judge Jack Lundy’s Buckingham BAR-B-Q on November 16th. I’m still accepting sponsorships for this big, big family-friendly party. As you come onto the property, sponsor signs will be lining the drive so be sure to notice who’s who in support of our second-largest party of the year!

Gray Robinson, P.A.

CopyLady 15 Dan Hopkins & Associates L.L.C.

19

Dial-a-Nurse 15 Donna Tisch Economic Recovery Group (ERG)

34 7

Edison National Bank

BC

Fiddlesticks Country Club

34

FineMark National Bank & Trust

9

Goldberg, Racila, D’Alessandro & Noone, LLC 36 41

Henderson, Franklin, Starnes & Holt, P.A. 19 Hotel Indigo

23

Jason L. Gunter, P.A.

11

I’m already receiving sponsorships for the 2014 Bench/Bar Gala, as well. It will be held in April next year, just a little further away from the holiday season for everyone’s enjoyment. Once again, Mary Evans will be planning this event, and that assures us it will be another big splashy party.

Katharyn E. Owen, Esq.

15

Kuhn Law Firm

31

Kushner & Kushner Attorneys

39

Law Firm of Scott T. Moorey

11

Of special interest to our readers is the number of ANNUAL Sponsors from whom we are receiving support for 2014. This growth-related option, at $6,000 for full-year and $3,000 for half-year, allows the sponsor to select from among the events in our calendar year, for maximum exposure to our members. Welcome back to our Annual supporters from years past: CopyLady; Kelly L. Fayer, PA; IBERIABANK and West: a Thomson-Reuters business. And to all those currently considering how best to connect with our membership, I encourage you to e-mail me right away at info@leebar.org to request a meeting to discuss your objectives and let me help you plan a marketing campaign that works in combination with your print advertising. RG

Lee County Solid Waste Division

39

Leonard P. Reina

27

Leslea Ellis, LLC

17

Levins & Associates, LLC

38

Lit & More

35

McHale Properties

38

Merit Court Reporting, Inc.©

10

Nanci G. DuBois info@leebar.org | (239) 334-0047 ext. 102 8

RES GESTAE | October 2013

Musca Law Office, Inc. Patterson, Eskin and Ball

IFC-3 39

Paychex 27 Spivey Law Firm, P.A.

5

T3 Communications

23

The Livingston Firm

11

Veranda Restaurant

20

Von Ahn & Associates

33


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Congratulations to the Members of the Lee County Bar Association’s

100 Club

Aloia Roland & Lubell, LLP

Knott Ebelini Hart

Andrew S. Epstein, P.A.

Kuhn Law Firm, PA

Arend & Sisk, P.A.

Kushner & Kushner

Bonita Springs City Attorney’s Office

Lee County Legal Aid Society, Inc.

Costello Royston & Wicker, P.A.

Luis E. Insignares, Attorneys at Law

Boyle Gentile Leonard & Crockett P.A.

The Livingston Law Firm

Bruno & Prado, PLLC

The Law Firm of Scott T. Moorey

Burandt, Adamski & Feichthaler, P.L.

Norma Hand Brill, P.A.

Calvo & Calvo

North Law Firm, P.A.

Coleman & Coleman

The O’Brien Law Firm

Engvalson & Associates, P.A.

O’Halloran & O’Halloran, Attorneys at Law

Fort Myers City Attorney’s Office Fowler White Boggs, P.A. Freidin • Dobrinsky Fried & Fried, P.A. Garvin Law Firm Geraghty, Dougherty, Edwards, P.A. Goldberg, Racila, D’Alessandro & Noone, LLC Goldstein, Buckley, Cechman, Rice & Purtz, P.A.

10

RES GESTAE | October 2013

Osterhout & McKinney, P.A. Parvey & Frankel Prather and Swank, P.A. Andre J. Patrone, P.A. Pavese Law Firm Phoenix Law Partners, P.A. Rubinstein & Holz, P.A. Sheppard, Brett, Stewart , Hersch, Kinsey & Hill, P.A. Spivey Law Firm, Personal Injury Attorneys PA Steinberg & Linn, P.A.

Green, Schoenfeld & Kyle, LLP

Strayhorn and Persons, P.L.

Grossman Law & Conflict Management

Toll Law

Hahn Loeser & Parks LLP Henderson, Franklin, Starnes & Holt, P.A. Joseph R. Gaeta, P.A.

Downtown • 2022 Hendry Street Suite 104 • Fort Myers, FL 33901 S. Fort Myers • 6213 Presidential Court Suite 100 • Fort Myers FL 33919

McQuagge Law Firm

The Law Offices of Kevin F. Jursinski, P.A.

Thompson Family Law, P.A. Viles & Beckman, LLC Webb & Scarmozzino, P.A. Weldon & Rothman, P.L. The Wilbur Smith Law Firm, PLLC Yeslow & Koeppel, P.A.

Is your firm part of the 100 Club? Any firm with 2 or more attorneys and 100% membership in the LCBA qualifies. If you feel your firm is eligible fax a listing of your attorneys to (239) 334-0523 and we will let you know.


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www.TheLivingstonFirm.com Offices in Naples and Fort Myers October 2013 | RES GESTAE

11


Ethics Korner

CLOUD COMPUTING, REAL ESTATE TRANSACTION FUNDS AND MORE by Jason Hunter Korn

The Florida Bar’s Professional Ethics Committee (PEC) recently met for the second time in 2013. The PEC is comprised of about 40 lawyers from around the state. It is the governing body of the Bar that reviews and issues formal ethical opinions to guide Bar members in their conduct. The following are highlights of the recent PEC meeting: Opinion 12-3 Regarding Cloud Computing. The PEC affirmed a long awaited opinion regarding lawyers’ use of cloud computing. “Cloud computing” is defined as “internetbased computing in which large groups of remote servers are networked so as to allow sharing of data-processing tasks, centralized data storage, and online access to computer services or resources.” It is fast becoming a very popular tool for lawyers to store and utilize data. Typically, a third party acts as a provider of services, enabling the use of data 12

RES GESTAE | October 2013

at remote locations. Because data can be accessed by others outside of an individual law firm, the use of cloud computing raises concerns of confidentiality, competence and proper supervision of non-lawyers. The PEC followed in line with several bar opinions in other states that have addressed this issue, referring lawyers to certain procedures identified in those opinions as a guideline. For example, the New York Bar requires due diligence in researching the outside service provider to ensure that adequate safeguards exist to protect the information stored by the service provider. This includes ensuring that the provider will notify the lawyer if served with process requiring production of client information, investigating the provider’s policies and recoverability methods, and employing available technology to guard against attempts to infiltrate the data.


Ethics Korner Iowa’s Bar provides a list of items to consider, such as the reputation of the provider, its location, its user agreement, whether it chooses the law or forum in which any dispute will be decided, whether it limits the service provider’s liability, whether the provider retains information in the event the relationship is terminated, whether the information is encrypted, and whether the lawyer can further encrypt information and use additional security measures. Both opinions are referenced in the Opinion which can be found on The Florida Bar’s website. In sum, lawyers may use cloud computing if they use reasonable precautions to ensure the confidentiality of client information, that adequate security exists and that the lawyer has adequate access to the information stored remotely. Proposed Advisory Opinion 12-4 Regarding Real Estate Transaction Funds in Trust Accounts. This Opinion involves application of new section (a) of § 626.8473, Florida Statutes, which requires lawyers acting as real estate and settlement agents to hold real estate transaction funds in a separate trust account, allowing auditing by title insurers. This Opinion has garnered a lot of attention from practitioners around the state, as well as title companies. After a lengthy discussion, the PEC voted to rewrite the proposed opinion. It is anticipated that the new opinion will address whether attorneys are permitted to allow a title insurance company to audit special trust accounts used exclusively for real estate and title transactions - if the account holds funds for client transactions unrelated to the title insurer requesting the audit. Attorneys will likely be required to maintain separate accounts used exclusively for real estate and title transactions insured by a single title insurer. Otherwise, attorneys may be required to obtain the client’s consent to disclose information regarding their transactions to multiple insurers seeking audits if any trust accounts are used for transactions involving multiple title insurers. Withdrawal of Ethics Opinion 87-4 Regarding Different Contingency Fee Contracts. In light of the Florida Supreme

• • • •

Court’s decision in Amendments to Rules Regulating the Florida Bar – Biannual Report, 101 So. 3d 807 (Fla. 2012), Opinion 87-4 was withdrawn. The Court declined to adopt an amendment to Rule 4-1.5 which would have permitted a lawyer in a personal injury case to allow a separate attorney to handle lien resolution claims at an additional fee, with the client’s consent. The Supreme Court clarified that “lawyers representing a client in a personal injury, wrongful death or other such case charging a contingent fee should, as part of the representation, also represent the client in resolving medical liens and subrogation claims relating to the underlying case.” Informational Item – Code for Resolving Professionalism Complaints. On June 6, 2013, the Florida Supreme Court adopted a code for resolving professionalism complaints. The Chief Judge of every Circuit must create a local professionalism panel to receive and resolve professionalism complaints. The Circuit’s Committee on Professionalism may be designated as the “Panel.” Specific procedures and codes for resolving professionalism complaints are attached to the court’s decision. Members of the Bar should be familiar with this new decision. RG

The Ethics Korner focuses on various ethical issues, pertinent ethical opinions and decisions issued at meetings of the PEC. The author, Jason Korn, is an attorney, shareholder and Managing Director of the Florida office of Cohen & Grigsby. He is a member of the Litigation, Construction, and Shareholder and Partnership Dispute Practice Groups of the firm. He is also a member of the PEC, having served on the Committee for two terms from 1999 to 2005, and reappointed again in 2008, with his current term extending to 2014.

Depositions Court Hearings / Trials Meetings Independent Medical Examinations • Public Hearings

• • • •

Real-Time Services Video Conferencing E-Transcript Compressed Transcripts and Word Index • Transcript of Media

2231 First Street, Fort Myers, FL 33901 • 888-408-2380 • 239-334-1411 • www.FMCR-NCR.com October 2013 | RES GESTAE

13


Dean Milhizer’s Side Bar Reflections on the Fiftieth Anniversary of Gideon v. Wainwright by Dean Eugene R. Milhizer

Clarence Gideon stood alone. Although charged with burglary, he appeared without counsel in a Panama City, Florida courtroom because he could not afford one. During the proceedings the judge said, “Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.” Gideon replied, “The United States Supreme Court says I am entitled to be represented by Counsel.” Defending himself, Gideon was convicted and sentenced to five years confinement. He appealed from his prison cell, making use of the prison library and writing in pencil on prison stationary. He argued that he was denied his constitutional right to be represented by counsel. The appeal ultimately resulted in the landmark decision of Gideon v. Wainwright, decided in 1963. The Supreme Court unanimously ruled that state courts are required under the Fourteenth Amendment to provide counsel in criminal cases to represent indigent defendants. The Court wrote that the assistance of counsel, if desired by the defendant, is a fundamental right. It is essential for a fair trial and due process of law. It is worthwhile to reflect upon the fiftieth anniversary of the Gideon decision. For those of us who have practiced law only in a post-Gideon world – which today is the overwhelming majority of the bar – it is difficult to imagine a time in which defendants could be left to their own devices in defending against serious criminal charges. In retrospect, this was fundamentally at odds with essential purposes and merits of our adversarial system. It was unfair, even un-American. It was contrary to our understanding of how the legal system is designed to achieve justice. Gideon’s impact is well known. We take for granted that criminal defendants are entitled to the assistance of counsel. Soon after the decision, however, there was a need to create and then expand public defender offices, which had previously been rare. This led to new training programs that improved the criminal defense bar. It also resulted in often over-burdening limited resources, which in turn promoted a proliferation of plea bargaining with all of its benefits and detriments. Moreover, Gideon has helped the justice system live up to 14

RES GESTAE | October 2013

its name. It cannot be seriously disputed that fewer innocent defendants have been convicted because all defendants have the benefit of legal representation. Similarly, convicted defendants are more likely to receive a just punishment because they are represented by legal counsel. To deny these conclusions is to reject the very premise of our adversarial system of justice. We should also be mindful of Gideon’s place in the context of the Warren Court’s broader agenda. For example, the road to Miranda v. Arizona begins with Gideon. I have been a longtime critic of Miranda, for reasons that I have explained in other publications and are beyond the scope of this piece. See Confessions After Connelly: An Evidentiary Solution for Excluding Unreliable Confessions, 81 Temple Law Review 1 (2008); Rethinking Police Interrogation: Encouraging Reliable Confessions While Respecting Suspects’ Dignity, 41 Valparaiso Law Review 1 (2006). Regardless of one’s view of Gideon’s progeny, the significance of its descendants magnifies the importance of the seminal decision. Gideon has even found its way into popular culture. It inspired an award winning book, Gideon’s Trumpet, by Anthony Lewis, that described the story behind the case. The name of the book is a play on words, using the defendant’s last name to invoke a biblical story. In Judges, 7:16-22, Gideon ordered his small force to attack a superior enemy. Gideon’s army brought trumpets and torches. When Gideon’s army attacked, the noise and light tricked the enemy into believing it was facing a much larger force. As a result, Gideon won the battle with little actual fighting. Just like Gideon’s trumpet, defense counsel can give voice to his client’s objectives and help achieve a more favorable result. In 1980, the movie “Gideon’s Trumpet” was released. In the film, Justice Abe Fortas (played by Jose Ferrer) considers the grim reality of Gideon (played by Henry Fonda) proceeding pro se. Fortas implores, “What I’d like to say to the Court is: ‘Let’s not talk; let’s go down there and watch one of these fellows try to defend themselves.’” As anyone familiar with the criminal justice system well knows, this is not a recipe for a fair trial or just result. RG Ave Maria School of Law President and Dean, Eugene R. Milhizer, has presented lectures, speeches, and seminars at law schools and other venues across the country, and his legal scholarship has been published in many prestigious law journals. He can be reached at ermilhizer@avemarialaw. edu, or at 239-687-5305. www.avemarialaw.edu.


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Family Law Matters

Opening Salvo The 2010 Alimony Statute Amendment by Luis E. Insignares In 2010 the Florida Legislature passed “Laws of Florida, Chapter 2010-199,” sponsored by Miami Republican Representative Anitere Flores. For the first time, the legislature codified Florida’s common-law three tier system as to the length of a marriage and its relationship to the propriety of awarding so-called “permanent alimony.” I initially place the term in quotes since, of course, permanent alimony has always been subject to subsequent judicial modification, based upon a showing that the payor no longer has the ability to pay, the payee no longer has need of support, or both. Thus, it has in fact always been a bit of a misnomer. Florida courts had already devised a system to help determine when permanent alimony could appropriately be awarded. Under the case law, for short-term marriages, the presumption was against an award of permanent alimony. For mid-length marriages in what was often termed the “gray area,” there was no presumption, either in favor or against. For longterm marriages, the presumption was in favor of awarding permanent alimony, if the payee spouse could show her or his need, and the ability of the payor spouse to pay support. These presumptions were expressly written into the alimony statute, 16

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as well as more specific provisions on rehabilitative alimony, and a totally new option called “durational alimony.” In my opinion, the case-made three-tier rule worked in practice, and generally yielded equitable results. Where there are children of a marriage, it is quite commonplace for one spouse to limit his or her employment or career advancement, particularly during the children’s early years, and the economic momentum lost even if only for five or 10 years can often prove difficult or impossible to regain. And if there were no children or neither spouse otherwise limited his or her employment or career, then that spouse might not be able to show any “need” for post-divorce support anyhow. So, why tinker with a system that was already working? One answer is that the 2010 legislation was the first salvo by an “alimony reform” movement which considers Florida’s inclusion of any permanent alimony in its array of divorce remedies to be an anachronism based on the traditional “stayat-home-mom” paradigm seen less and less in the real world of two-income families. These same reformers were previously often referred to as those agitating for “men’s rights.” This latter appellation, however, overlooks the obvious fact


Family Law Matters that Florida law, whether statutory or court-made, is genderneutral and speaks only in terms of payor and payee spouses, so that any “advantage” granted to a less financially able spouse is in fact just as available to men as it is to women, if that should prove to be the applicable factual scenario. Seen from a feminist perspective, the current alimony reform movement is nothing less than an attempt not at “fairness,” but at the perpetuation of a patriarchy in which many women face a “lose-lose” Catch-22: if they elect the traditional stay-at-home role, their parenting and homemaking labor will be economically undervalued, while if they stay in the outside-the-home workforce, they will still often face “glass ceilings” and otherwise not be paid the same for the same work done by their male counterparts. One good thing that the 2010 legislation did, (no matter one’s political leanings), was to add more certainty to the three-tier marriage duration system. As is typical of judge-made law, the boundaries between the three “tiers” under the case law were not exact. The 2010 legislation added to the alimony statute (Section 61.08) very specific cut-offs for the three tiers. Under the 2010 amendments, “short-term” marriages were “less than seven years,” “moderate-term” marriages “greater than seven years but less than seventeen years,” and “long-term” marriages have “a duration of 17 years or greater.” The measurement is from the date of the marriage to the date of filing. Overlooking

the thorny question of a divorce petition filed on a couple’s seventh anniversary, the inclusion of exact cut-offs provides Florida husbands and wives, and their attorneys, guidance as to when filing for divorce will be most appropriate, as well as possible assistance in drafting prenuptial agreements, which sometimes reward or penalize spouses based upon the length of their marriage. I mentioned that the 2010 changes were the “opening salvo” from the alimony reform movement. In my next column we’ll look at the more extensive statutory changes made in 2011, and in future installments, we’ll look at the failed 2013 amendments, vetoed by Governor Scott, and more that’s currently in the offing. RG Luis E. Insignares is a board certified marital and family lawyer and a certified family law mediator practicing in Fort Myers, Florida with the firm of Luis E. Insignares, P.A. He serves on the Executive Council of the Family Law Section of The Florida Bar and is a current member of the Family Law Certification Review Committee and former member of the Family Law Rules Committee of The Florida Bar.

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E N e O f i e L ’ s th Be in someone Ethel Wells on learning from service by Sara Fitzpatrick Comito

“I have mixed emotions,” said Ethel Wells, Pro Bono Coordinator at Florida Rural Legal Services (FRLS), as she prepared for her retirement, effective September 12. We spoke in her office earlier that week, our second meeting in that space over the last few years. This time it was bare, except the necessities for her last few days of work. Eleven years is a lot of history, and a lot for her to leave behind, especially something she’s so passionate about. It was never an easy job, connecting lawyers who are willing to donate their services to people in need across five counties. She’s seen some difficult times, too, with the not-for-profit organization having to respond to economic pressures with layoffs two years ago. Simultaneously, demand continued to grow in the community, as people suffered setbacks owing to those same economic pressures. Would she do it again? Of course she would, and there’s

Ethel Wells expresses surprise and gratitude a the recent LCBA luncheon where she was recognized for her years of service Photo by Jim Jett

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been a lot to learn along the way. “My tenure at FRLS has been a learning experience not only from the legal aspect, but I learned so much about myself.” Here is her advice for her successor, who as of press time hadn’t yet been selected: You have to be patient. You have to be patient with clients. You have to be patient with the process of connecting clients with attorneys. You have to know the attorney, and you have to know the client to make sure they’re going to be a match. You have to be a good listener. Sometimes the words you’re hearing are not actually what the client is trying to say. You have to be able to listen in order to ask the questions to get to the foundation of the problem, because if you don’t identify the problem, you’re just fixing the symptoms. You have to be empathetic. You have to show that you care. You just have to be a believer in social justice. You have to be honest. You have to take care of yourself. There’s always going to be a need. “I don’t think we will ever have enough attorneys to supply the need that we have,” she said. There’s a core group of 20 or so attorneys she’s been able to rely on steadily. What do those people know that others don’t? Wells explained, “I think they know it’s always good to reach back and help someone who’s less fortunate. And they also know that it doesn’t take a lot. They know they can be the one who makes a difference in someone’s life. These attorneys know they will be better people for the service they render.” Wells promises she’ll still be around to help in any way she can. She plans to be involved in community service through her church. As well, she expects to volunteer to help with events and special projects presented by the Lee County Bar Association. Last but never least, she wants her colleagues and friends at FRLS to know she will only be a phone call away. She concluded, “I am so grateful to all of the staff there and I know I will always do my part to be the ONE in someone’s life.” Join us in wishing her all the best in her retirement. Those who know her will realize the best way to see her off to her next adventure is to take up the call to be the ONE. RG


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19


The Dish List

where to meet & eat

Exceptional for 35 Years

The Veranda 239-332-2065 2122 Second Street, Fort Myers www.verandarestaurant.com The Veranda’s romantic setting in two turn-of-the-century homes, combined with our Southern Regional Cuisine, an extensive wine list, and first class service staff will provide you with the most unique dining experience in Southwest Florida.

Hotel Indigo 239-337-3446 1520 Broadway Ave., Fort Myers www.hotelindigo.com The Hotel Indigo Fort Myers provides an escape from the ordinary, offering premium services, a casually-sophisticated ambiance. Breakfast, lunch and dinner served daily in the Broadway Bistro. Happy Hour Monday through Friday 2pm - 8pm.

Morgan House Restaurant

At YouR SeRvice Back Row: emory Bottorff - 1 year, Brad Haynes - 1 year, Brett Jackson - 3 years Second Row: Larry Forsyth - 24 years, Pete turner - 16 years, tim Barnes - 9 years, Duffy Drumm - 9 years Front Row: General Manager Dennis Genge - 12 years & chef William Murray - 11 years

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239-945-0405 33 Patio De Leon, Fort Myers www.morganhouserestaurant.com Discover the natural flavors of Old Florida. Experience The Morgan House Restaurant, where everything “old is new again”, while The Morgan House’s catering and culinary professionals bring legendary hospitality to you. A perfect place for entertaining and socializing.

Ford’s Garage 239-332-3673 2207 First Street, Fort Myers www.fordsgaragefl.com Ford’s Garage is your neighborhood burger and beer joint, where everyone is welcome. Located in Historic Downtown Fort Myers, Cape Coral & soon in Miromar Outlets. Drop in for an Ice Cold Craft Beer, Cocktail or Wine and enjoy a Prime Burger.

Introducing THE DISH LIST A new monthly feature showcasing where to meet and eat in Southwest Florida, running next to RG’s regular feature “The Dish”. To take advantage of this great opportunity to have your establishment featured in this special section, contact

Linda Fiore: 239.690.9840 or resgestae@leebar.org


The Dish

“This is the best hamburger I’ve ever eaten. I’ve eaten a lot of hamburgers, and this is the best one I’ve ever had, so that’s saying a lot.” These are the words of my 12-year-old son, obviously a budding food critic. The burger in question was an angus beef patty with cheddar, mushrooms, bacon and jalapeno. Yup, the kid goes for the spicy stuff – I brought him up right – and he knows his way around a menu. The Hot Mama is one of the specialties at BurgerQue. Maybe you’ve driven past on your way to somewhere else; chances are you’ve driven past when it was somewhere else. Of the previous tenants, I most lament the loss of Barracuda Coffee, but there have been others, like the taco place ostensibly affiliated with a national chain until a customer inquired about a coupon, to which the staff would launch into a canned spiel about how if you look at the logo, it’s slightly different. Um, OK. In his flagship book Kitchen Confidential, Anthony Bourdain describes the funk that can take up residence in a storefront when restaurants come and go with seasonal regularity. “Like some unseen incubus,” he wrote, “this evil cloud of failure can hang over a restaurant long after the operation has gone under, killing any who follow.” I’ll spare you the further melancholy, but I wish to impart my motivation for dedicating this space to a drive-thru burger joint. First of all, my son is honest, and a good judge of food. If you are craving a burger you have a couple of choices. You can go get your feed bag on at a fast food chain then suffer the consequences. Or you can choose from a number of gourmet burger joints that have popped up recently and pay the price. BurgerQue represents a win-win. Great, fresh, real food at a reasonable price and with quick, friendly service. In full disclosure, the restaurant is in my neighborhood and

I want them to stick it out. This is pure, biased, participant journalism, folks. And I’ve got a lot riding on it. The “Que” part of the name refers to the pork and brisket hickory-smoked right in the parking lot. If the wind blows just right I can smell it from my house. It’s really good! The News-Press’ Jean LeBeof has proposed reversing the name so it becomes QueBurger. Toe-may-to, toe-mah-to. How about this: MicroBrewGerQue. That’s just plain silly, but the new beer garden is serious. When I moved here 12 years ago from a series of points north, I glumly perceived a light-beer ethos pervading Southwest

October 2013 | RES GESTAE

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The Dish

www.businessobserverfl.com

Florida. Where can a girl get a decent ale in these parts? Well today it’s BurgerQue. On a recent fact-finding mission I reveled in the golden nectar that is Stone India Pale Ale. A Monk in the Trunk provided round floral notes in an organic amber ale produced in Jupiter, Florida, and packed a significant punch. Hop Devil boasts edgy hops character in an IPA with a lot of backbone. All in the name of journalism. For those so inclined, light beers are certainly on offer, as is an interesting little wine list. At some point, the location was a Jucy Lucy’s. So maybe it’s fitting a burger joint should move in and close that circle. Owner Tim Mankin’s parents had owned an old-timey drive-in restaurant in Michigan, and he’d like to model his place after that. He’s got some issues with the design of the building and parking lot to deal with, but he’ll just have to take one thing at a time. The beer garden has just opened, replete with interesting metal work, misting fans, a water wall, and the smoking hickory stacked up as décor. It’s a comfortable place to hide away for an hour or two. That came about just after Mankin exercised his option and became owner of the property this past spring. So, do me a favor and go splurge on a Cowboy Baby (a burger topped with brisket, BBQ sauce, coleslaw, spicy pickles and cheese on toasted bread), some St. Louis style ribs, the chicken bacon ranch salad or some crunchy, battered fries or homemade chips. Breakfast is served all day long, and family bags provide a great solution for a weeknight dinner. I’d like

{

BurgerQue 3852 Cleveland Ave., Fort Myers (239) 277-5700 www.burgerque.com Monday – Thur 10:30 a.m. - 9 p.m. Friday – Saturday 10:30 a.m. - 2 a.m. Sunday 10:30 a.m. - 9 p.m. Delivery, pick-up, dine in Sara Fitzpatrick Comito is publications editor for Conric PR & Marketing | Publishing, and associate editor of Res Gestae magazine. She’s also a freelance writer and frequent contributor to the Naples Daily News and other publications. For suggestions or comments on this regular feature, contact Sara at Sara@ ConricHoldings.com.

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And Justice for All Pro Bono Committee empowers clients and community

by Sara Fitzpatrick Comito

Day after day a young woman comes home to the smell of mold. The air conditioning is broken. The landlord is nowhere to be found. She doesn’t want to live like this, of course, but what are her options? She’s certain if she tried to terminate the lease early, the landlord would withhold her security deposit and demand payment for rent through the term of the lease. Then how could she get a new apartment? Her income is meager, and she has no savings. Certainly, she couldn’t pay an attorney. 24

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That’s where Kathleen Oppenheimer Berkey steps in as pro bono counsel. “Ultimately, I was able to help my client terminate her current lease and receive her security deposit back, in full, plus review her next lease and counsel her on what to look for in her next rental home and landlord so she could avoid similar circumstances going forward. The client was relieved to be free of the unhealthy living conditions and I was happy to use my skills to help improve her quality of life.”


Empowering attorneys Berkey is a chairperson for the LCBA’s Pro Bono Committee (PBC), whose mission is to expand the provision of high quality, free legal services to Lee County residents in need by empowering attorneys to accept more pro bono cases and increase awareness of pro bono opportunities among County residents through workshops, clinics, seminars, and material dissemination. This month we celebrate the pro bono contributions of our lawyers with the LCBA membership meeting and Pro Bono Awards on the 18th. In advance of that luncheon event, we’d like to welcome Audrey Singleton to the area. She just moved to Fort Myers from Tallahassee, and has graciously accepted an invitation to join Berkey at the PBC helm. “I really believe in the mission of the PBC,” she said, “and I look forward to helping increase pro bono involvement in Lee County. Not only does it help our community, pro bono involvement also improves the reputation of our profession.” One of Singleton’s most rewarding pro bono cases was a criminal defense case. “It was a situation where law enforcement had not been properly trained and significantly violated the defendant’s due process rights.” She said many people in those circumstances take a plea deal out of fear or lack of perceived choice. “Because I filed a few motions, he was empowered to make a decision about his case rather than accepting an unjust outcome.” Not only was the client’s future made to look brighter, but so was his perception of lawyers. Additionally, Singleton empowered someone, and as a new attorney, felt empowered in return.

Professional aspirations Yes, the Florida Supreme Court has set an “aspirational professional responsibility for all members of the Florida Bar,” with some exceptions, and it’s well and good to aspire to the annual 20 hours or $350 in contributions. But those who take on pro bono cases tend to make it a lifestyle choice, and one that sticks. Pro bono publico translates as “for the public good,” but those who participate will tell you it ultimately means a lot of good for them personally. Miguel C. Fernandez III, former LCBA president (2005), said, “I think all of us who engage in pro bono services within our community are actually enhancing the intangibles (i.e. quality of life) more than the tangible. I think we give people a meaningful measure of confidence in their legal rights, a renewed sense of confidence or trust in our legal system, and a certain amount of tranquility or peace of mind that you just can’t put a price on.” Dan Endrizal is well known in the community for his pro

bono service. His most memorable moments in practicing law are in assisting families with special needs children in Guardian Advocate cases. He believes that when attorneys discover how easy it is to provide pro bono legal services and how grateful the families they serve are, they will naturally want to share that feeling and encourage another lawyer to step up and give back. Make no mistake: attorneys have plenty of support when it comes to providing pro bono service. By accepting pro bono work through Florida Rural Legal Services, you receive benefits such as out-of-pocket cost reimbursement; malpractice insurance, pre-screening of clients to ensure they are indigent and free Continuing Legal Education webinars. Additionally, participating attorneys become referrals for clients who do not qualify for pro bono legal services because they are over income. There are also opportunities to give counsel and advice to the public at legal clinics sponsored by FRLS.

Support and solutions Singleton acknowledged a common misconception is the significant time investment. With FRLS doing much of the leg work, it makes it pretty simple to get involved. “If every attorney took just one additional pro bono case each year, underprivileged Floridians would have infinitely better access to legal services,” she said. “As attorneys, we often take for granted our education and training. We forget that many people in our community do not have the skills to navigate what we consider the most basic legal processes.” Berkey concurred that many pro bono cases are relatively simple for an attorney to navigate, but can make a world of difference for someone in need. “For example, assisting an elderly person with a power of attorney or living will might involve three to five hours of your time,” she explained. “There are numerous pro bono projects in need of only a few hours of an attorney’s time, and the rewards of this work are great, whether it involves five hours or 40 hours.” Additionally, she said, pro bono work can provide a steppingoff point for attorneys who have limited expertise in a certain area, but would like to gain experience in it. “The Pro Bono Service Committee can connect you with a mentor in that area and may provide legal training programs for interested attorneys to suit the needs of a particular pro bono project.” Finally, the need is as great as ever. To find out more, join the PBC’s mailing list to learn details of new pro bono cases and seminars for the public. Consider getting involved with the PBC board by e-mailing the co-chairs at KathleenBerkey@ PaveseLaw.com and singleton.audrey@gmail.com. And don’t forget to sign up with the pro bono coordinator at FRLS. Simply visit frls.org, then click on the Pro Bono tab to offer your expertise. RG October 2013 | RES GESTAE

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Community Connection

featuring Marshall T. Bower by Sara Fitzpatrick Comito

“As a prosecutor, I felt it was not only incumbent upon me to hold people accountable for their poor decision making, but also to provide the tools and resources through evidence-based practices that have positive intervention and prevention outcomes,” said Marshall T. Bower. Today, he’s president and CEO of The Foundation for Lee County Public Schools, Inc. The organization seeks to enhance and enrich the quality of public education in Lee County for students and educators through programs, resources and experiences made possible through corporate, individual and educational partnerships. It was a perfect opportunity for Bower to exercise his self-directed mandate, and an avenue to effect change in view of a major personal frustration: “I was tired of seeing the horrible outcomes of poor decision making, especially in our potentially greatest asset as a community…our children.” He’s honored to have worked with the organization, which engages the business community and the community at large with the Lee County Public School District, since the mid 1990s. His first exposure was on the selection committee

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for one of its scholarship/mentoring programs, Take Stock in Children. Bower explains, “Take Stock in Children has a 92-percent success rate statewide and here in Lee County, I am proud to say it has a 96-percent success rate. What that means is 96 percent of the at-risk students we accept into the program graduate from high school and start college.” In stark contrast, the graduation rate for the same group of students not involved in the program is about 45 percent. What does Bower get out of it? “The satisfaction of knowing that I am part of having a tremendous positive impact in the lives of our students.” He joined the board of directors, then assumed his present position seven years ago. “Since then I


Community Connection have had the pleasure of working with the foundation’s board, staff and business partners to grow and expand our initiatives so that our terrific educators and students have the opportunity to excel.” He’s also heavily involved in a number of other community organizations like SalusCare, Golisano Children’s Hospital Community Council, FGCU’s Institute for Youth and Justice Studies and PACE Center for Girls. The foundation provides many things: school supplies to needy students, classroom materials or grants to teachers, art instruction to students with autism, advanced instruction and development to educators or simply food for students and their families. For as much as it offers, there are lots of ways for you to get involved. “Attorneys have a special role in our society and can play an important role with helping us to succeed with our mission. I always encourage my fellow lawyers to get involved,” Bower concluded. “Whether one gives through their time, talent or treasure, they can be assured that they are investing in our greatest asset…our children.” To learn more, visit www.leeschoolfoundation.org or call (239) 337-0433. RG

Mentoring the mentors

by Marshall T. Bower Several years ago, one of our mentors came to me concerned that he didn’t seem to be connected with the student he was assigned to. Because he was an experienced mentor, I encouraged him to keep working with the student and try to draw him out. When I asked him about the child later, he told me that although they got along well, he didn’t feel that he was really making an impact. I encouraged him to keep at it, and reminded him that sometimes we don’t see the impact as easily with some kids as with others. A couple of years later, during the celebration banquet for our graduating Take Stock in Children students, (all of our students in the Take Stock in Children Program are awarded a four-year tuition scholarship when they successfully complete the program!) I picked out his mentee to speak to the press. During this interview the student divulged information unknown to most until then. He told of his parents being deported and how he and his siblings were living with other family members. He was helping to raise his younger siblings and because he feared being separated, he never spoke of the situation. In spite of all that he was going through, he persevered, graduated and was accepted into college. When asked by the reporter how he overcame all the obstacles he faced and was now moving on to college, he simply replied his mentor made all the difference. When his mentor read this, he was overwhelmed and moved to tears. He has since helped the Foundation launch a second mentoring program (the Student Advocacy and Mentoring Partnership – ‘STAMP’) both financially and through sweat equity.

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Legal Lens 1

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LCAWL Social and Kim Patrick Hart / Donnelly & Gross BBQ

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Photos by Claudia Volk

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1  Ron Buschbom, Judge Fuller, and and John Lewis   making light of college rivalries 2  Cora Molloy, Shannon Puopolo and Stephanie Bendeck 3  Jennifer Budreau and William Kratochvil 4  FMBFD’s JP Duncan, Jodi Duncan, and FMBFD’s Mike Coenen   pose for the camera at the BBQ 5  Janette Smith, Kelly Fayer, Liridona Sinani, Eviana Martin,   Diana Dawn Jezik and Indera Singh 6  Colt Fisher, Scott Legg, Kimberly Bocelli and William  Stallings 7  Mary Evans, Claudia Volk and Danielle Zemola 8  Casey Stewart and William Stallings 9  Pete Burkert, Judge Rad Sturgis, Mary Evans, Keith   Grossman and Judge Fuller enjoying the BBQ


Legal Lens 1

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3 5

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LCBA Luncheon with

State Representative

Heather Fitzenhagen

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at Sidney & Berne Davis Art Center Photos by Jim Jett

1  Anne Dalton, Cora Molloy, Lt. Angelo Vaughn,   Claudia Volk and James Forry 2  Councilwoman Teresa Watkins Brown and featured   speaker State Rep Heather Fitzenhagen 3  Lori More, Denise Wheeler and Kim Bocelli 4  Linda Fiore, Connie Ramos-Williams, Sara   Fitzpatrick Comito and Michelle Hudson of   CONRIC PR & Marketing | Publishing, one of the   event sponsors 5  Suzanne Boy and John Agnew 6  Lt. Angelo Vaughn and Cynthia Duff of Copy Lady, a   proud event sponsor 7  Henry Lee Paul, Chardean Hill and Carlos Kelly October 2013 | RES GESTAE

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On the Bench Hon. John S. Carlin Galileo Galilei said, “You cannot teach a man anything, you can only help him find it within himself.” As the son of two retired teachers, Judge John S. Carlin was given all the support he needed to discover and pursue his interest in the law. “My mom encouraged me to become a lawyer and my dad took me to trials at our local courthouse when I was in high school,” he recalled. Today, the judge takes every opportunity his position affords to pass on the love of learning. “I am passionate about law-related education because I believe that our children should have a solid foundation about our Constitution and the important role that the rule of law plays in our country. I enjoy speaking about our court system to children and adults who tour the courthouse.” The judge presides over a full docket of family law cases, and he enjoys finding solutions to help families work together for the benefit of the children. He said the attorneys often make it a pleasure. “The Family Law Bar in our circuit is a very professional and passionate group that I enjoy working with each day.” Some of his most rewarding cases were in juvenile drug court and dependency drug court, helping people enter recovery for the long term. “Judges’ decisions can help people and it was very rewarding to be part of a team that was able to impact someone’s life by encouraging them to lead a productive life and not waste their life on drugs.” Judge Carlin characterizes the past 23 years of serving as a judge in our circuit as “a very positive experience for me.” The biggest challenge for the court system in his estimation is the level of funding needed, compared to the level that is actually supplied by the state. “We have not received any new judges in Southwest Florida since 2006 and the judges are working as hard as possible to keep up with the demands of our dockets and getting people into court as efficiently as possible.” When not at the courthouse, the judge enjoys spending time with his wife and two boys. “Tennis is a big part of our life, as our sons compete in tennis tournaments throughout Florida as well as other states.” RG

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RES GESTAE | October 2013


From the Bar Michael Beckman, Esq. Michael Beckman cites one driving motivation in his practice: “being able to help others who really can’t help themselves.” He focuses on personal injury and consumer law. “In both those areas, we’re going up against defendants and parties who have vast resources, greater than most of my clients.” Fort Myers-based Viles & Beckman has faced off against goliaths such as Merck and Johnson & Johnson. Those companies marketed products that were supposed to improve the lives of patients. Instead, “they came out with their lives changed for the worse.” As a kid, Beckman was impressed with the film Twelve Angry Men. “It really got me interested in law at a young age,” he explained. Then it got personal. His father was always a trustworthy man who did business on a handshake. Then his trust was betrayed in dealings with a large apartment complex management company. “I saw them get away with ripping him off for a lot of money,” Beckman recalled. “It was always something that bothered me.” While he couldn’t help his dad, he’s able to go to bat for his clients, sometimes in multi-district litigation. To meet its clients’ needs, a firm needs to position itself in competition with the other law firms involved in multi-district cases. This entails knowing how to put together the litigation packages, being ready to go to trial at a moment’s notice, and gathering the information needed to navigate the recovery grids. In short, according to Beckman, a successful firm must have the “staff, heart and resources.” There have been the history-making cases, like Firestone Tire. Then there have been individual folks who just needed someone strong in their corner. Beckman recently won a case against Geico, currently on appeal. Beckman’s client had settled with the car insurance giant and took it at its word, which it subsequently betrayed. “It was very similar to what I saw happen to my dad,” Beckman explained. “I do not like watching people get taken advantage of just because someone else has stronger resources.” When he’s not at work, he dedicates his own resources to his wife and children. He enjoys attending his daughter’s theater performances, and is on the board for Cape Coral National Little League, on which his son is a player. RG

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Terry’s Take On Things

I AM NO “ICON!” by T. Terry Rankin

Every few months as my hair gets grayer and my time at the bar gets longer, someone introduces me to a “younger” as an “icon.” According to my late father, after World War II there was agitation to erect statues of “recent,” living heroes. Before any “brass was cast,” it was pointed out that statues erected of living people might have to be torn down! I’ll defer icon status. My two years as pro bono General Magistrate has ended. It was a very enlightening experience. I want thank to Lee County Administrative Judge John Carlin, last past and current Chief Circuit Judges Keith Cary and Jay Rosman, and my mentor in the work Judge Tom Corbin. Former General Magistrate Andrew Bokam, General Magistrates Steve Studybaker, and Mary Ann Kantor who shared their libraries of Orders and Judgments and insights into dealing with pro se litigants. Order was kept by Scott Reduga and Judy Natale who served as my “MAs” (Magistrate Assistants). Special thanks to the Deputy Clerks and Court Room Deputies who kept me from fouling the procedures and from signing in the wrong places and the CourtSmart staff who accommodated my Kentucky accent and demonstrated lack of a classical education in pronouncing names. Any mistakes were mine. Thanks to you all. Anyone who thinks that dealing with family law cases is not tough is very wrong. When children are involved, and most of the cases involve children, whatever the statutes say, whatever the cases say, whatever the parents and other witnesses say, and whatever “the papers” say you have to wrestle with what is in the best interest of this child (or these children). The work that people named Adams, Carlin, Cary, Corbin, Duryea, Kantor, Studybaker, and Swift do is heavy lifting in the most personal way. I have spent most of my “time at the bar” dealing with “money issue” cases, plans, and transactions. Having to deal with matters with significant post-judgment lives was a humbling experience. In one of my first cases I made a mistake on a tax question (me, the Big-Gator LLM Tax man!) and Judge Elisabeth Adams had to bail me out. I am glad it was early on; it was a valuable learning experience. 32

RES GESTAE | October 2013

WHAT FOLLOWS MAY DO SOME GOOD—NO GUARANTEES. In my continuing study of the history of the laws surrounding mortgage foreclosures I talked to Attorney Greg May who showed me Houck Corp. v. New River, Ltd., Pasco, 900 So. 2d 601 (DCA 2, 2005). It is a statute of limitation/statute of repose case. If we have the “lien theory of mortgages” (Sec. 697.02 Fla. Stat.) and “the mortgage follows the note,” then when the obligation being secured by the mortgage (or, for that matter, a UCC security interest) is extinguished you would think that the mortgage or UCC security interest securing it also “dies.” Sec 95.11 (2) (a) [notes] & (c) [mortgages] Fla. Stat. kills off notes and mortgages after five years. However, Sec 95.281(1) (b) Fla. Stat. extends a mortgage to 20 years if “… the final maturity...cannot be ascertain(ed) from the record of it,…” Instead of going back to first principles the Second DCA tried to reconcile the two statutes by calling 95.11 a statute of limitations and 95.281 a statute of repose [the opinion has good definitions of both]. The result is that an unenforceable note gives rise to an enforceable mortgage. Apparently the federal government can take forever. See; 28 USC Sec.2415, US v. Thornburg, 82 F.3d 886 (9th Cir. 1996) and, LLP Mortgage LTD v. Tucker, 48 So.3d 115 (DCA 3 2010). Even given the pervasive presence of Fannie, Freddie and other “Feds” in “mortgage titles,” it seems nothing is lost by trying to get a copy of the signed note recorded with the mortgage. Otherwise the borrower can record an affidavit attaching to it a copy of the signed Promissory Note swearing/affirming that it was given simultaneously with the mortgage recorded as Instrument # X. Sec. 95.281(1) (b) Fla. Stat. on the mortgage holder recording the note seems avoided because the affidavit puts it under (a) which only requires “ascertainable from the record” (recorded=record, and if readable it’s ascertainable!). RG

T. Rankin Terry, Jr., BSME (Kentucky), JD (Washington Univ. St. Louis), LLM (Tax) (Florida), has been board certified in Civil Trial since 1983, a Certified Mediator since 1994, and practiced in Fort Myers since 1972. His email address is trterry@gmail.com.


Legal Briefs Jursinski receives historic third certification Kevin F. Jursinski has received his third Florida Bar Board Certified Specialist designation, in Construction Law. The principal attorney of the Law Office of Kevin F. Jursinski is now the only lawyer in state history to hold that designation along with certification in Real Estate and Business Litigation. Florida Bar Board Certification recognizes attorneys with special knowledge, skills and proficiency in various areas of law, and professionalism and ethics in practice. It is the highest level of achievement and evaluation granted by the Florida Bar. This Legal Brief originally ran in the Sept. issue Res Gestae, with Mr. Jursinski’s name misspelled. We regret the error.

Borkert joins The Hagen Law Firm Neysa J. Borkert has joined The Hagen Law Firm. Her primary areas of practice include environmental, land use, local government, administrative and real estate law. Borkert represents clients in a variety of matters concerning the conveyance, entitlement and development of real property. She regularly appears in administrative hearings before local government entities to obtain zoning approvals such as variances, special exceptions, re-zonings and conditional use requests, along with code enforcement and permitting matters. “We are pleased to have Neysa join our firm,” says Attorney Mike Hagen. “Her breadth of experience will further enhance the capabilities that our practice provides for our clients and will help us remain at the forefront of the real estate industry in Southwest Florida.” BorkertearnedherlawdegreeattheUniversityOfFloridaLevinCollegeOfLaw.ShejoinsthefirmfromPaveseLawFirmwheresheworkedformore than 9 years as a land use and environmental permitting associate attorney.  She is a member of the American Bar Association, Lee County Bar Association,LeeCountyLandUseBarAssociationandtheLeeCountyRealEstateInvestmentSociety.ShehasbeenaguestlectureratEdisonState College and has most recently presented to various planning organizations a discussion of the legalities and issues facing urban agriculture.

New accolades for Cummings & Lockwood attorneys Cummings & Lockwood LLC had 4 Florida attorneys listed as 2014 “Best Lawyers in America”. William N. Horowitz (Trusts & Estates, listed since 2001), and Howard M. Hujsa (Trusts & Estates, listed since 2010) both resident in the Bonita Office, and Todd L. Bradley (Trusts & Estates, listed since 2008) and Deborah L. Russell (Trusts & Estates, listed since 2008) both resident in the Naples Office. Also, M. Travis Hayes, an attorney in the Naples office, was recently appointed as the vice-chair of the Probate Law and Procedure Committee for the Real Property, Probate and Trust Law (RPPTL) Section of the Florida Bar. Travis will continue to serve as the vice-chair of the Digital Assets and Information Study Committee and on the Executive Council for the RPPTL Section.

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Legal Briefs Noone named to Multi-Million Dollar Advocates Forum Michael M. Noone has been certified as a life member of both the Million Dollar Advocates Forum and the Multi-Million Dollar Advocates Forum. He is a Partner in the law firm of Goldberg, Racila, D’Alessandro & Noone, LLC, and specializes in personal injury, insurance litigation and medical malpractice litigation. Membership in the Million Dollar Advocates Forum is limited to attorneys who have won million and multi-million dollar verdicts, awards and settlements. The organization was founded in 1993, and there are approximately 3,000 members located throughout the country. Less than 1 percent of U.S. lawyers are members. Forum membership acknowledges excellence in advocacy, and provides members with a national network of experienced colleagues for professional referral and information exchange in major cases. Members of the Million Dollar Advocates Forum must have acted as principal counsel in at least one case in which their client has received a verdict, award or settlement in the amount of one million dollars or more. Members of the Multi-Million Dollar Advocates Forum must be Life Members of the Million Dollar Advocates Forum and must have acted as principal counsel in at least one case which has resulted in a multi-million dollar verdict, award or settlement.

Rice included in Best Lawyers J. Jeffrey Rice, managing partner of Goldstein, Buckley, Cechman, Rice & Purtz, P.A., has been selected by his peers to be included in the 20th Edition of The Best Lawyers in America, published by Woodward/White, for his work in the fields of Bet-the-Company Litigation and Commercial Litigation. Rice has received this distinction for six consecutive years. Inclusion in Best Lawyers is based on an exhaustive and rigorous peer-review survey comprised of more than 5 million confidential evaluations by top attorneys. Rice is certified as a Civil Trial Advocate and Civil Pretrial Practice Advocate by the National Board of Trial Advocacy (Trial Practice - Commercial and Corporation). Certified in Civil Trial Law, Business Litigation and Construction Law by The Florida Bar, Rice is licensed to practice in the U.S. District Court for the Middle District of Florida and admitted to practice in the U.S. 11th Circuit Court of Appeals. In addition, he is certified by the Florida Supreme Court as a Circuit and County Court Mediator. Rice focuses his practice on commercial and construction law, construction lien cases and real estate closings. He has been named one of Florida’s Super Lawyers each year since 2006.

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Legal Briefs Rodriguez joins Grossman Law & Conflict Management Kristianna Rodriguez has joined Grossman Law & Conflict Management. She comes to the firm with several years of experience in practicing criminal law and many hours in the courtroom and in various adversarial jury and bench criminal trials. Rodriguez graduated law school at University of Florida with clinical practice in the law school’s Center on Children and Families, Child Welfare Clinic, and the Center for Governmental Responsibility. Prior to law school, Rodriguez graduated magna cum laude with dual degrees in International Affairs and Spanish from Florida State University. During her time as an undergraduate student, Rodriguez studied and worked in many Spanish-speaking countries. As part of her experience abroad, she has taught English and studied as a foreign exchange student in Spain, served as a Rotary Ambassador of Goodwill in Ecuador, and conducted research for the Bureau of Western Hemisphere Affairs in the United States Embassy in Mexico City. “Family law is very important to me,” she said. “I know from personal experience that family matters requiring legal action can often be confusing and stressful. I look forwarding to helping my clients find solace in reaching a solution.

Anderson Named “Lawyer of the Year” Roetzel announce that Partner Bruce Anderson has been named a Best Lawyers 2014 “Lawyer of the Year.” He is recognized in the area of Land Use & Zoning Litigation for the metropolitan area of Naples/Fort Myers. Only one lawyer in each practice area from the greater Southwest Florida community is honored as “Lawyer of the Year.” Best Lawyers compiles its lists of outstanding attorneys by conducting thousands of confidential peer-review surveys. Lawyers honored as “Lawyers of the Year” have received particularly high ratings by earning a high level of respect among their peers for their abilities, professionalism and integrity. Anderson has more than 30 years of private and public sector experience in zoning, land use and environmental law in Southwest Florida. He represents property owners and national and regional developers of residential, commercial, industrial, mining, and mixeduse community projects, on issues and matters such as: rezoning, planned unit developments, developments of regional impact, conditional use permits, variances, environmental issues, land development code amendments, comprehensive plan amendments, public/private partnerships and other growth management permit and development order issues. In addition, he is certified by the Florida Supreme Court as a Certified Circuit and County Court Mediator.

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Lit & More E-Discovery Professional is Awarded CEDS Certification After Passing Rigorous Examination

Mediation in: • Personal Injury • Family Law • Real Estate • Probate • Foreclosure • Business and Contract Disputes

Michael Sooley of Lit & More based in Southwest Florida is among the select maiden group of e-discovery professionals to pass the rigorous Certified E-Discovery Specialists certification examination. Michael has now earned the right to use the prestigious designation, CEDS, as a Certified E-Discovery Specialist. The CEDS credential is earned by individuals who pass the rigorous four-hour examination that provides a tough and objective measure of mastery of the challenging field of e-discovery. The certification program is administered by the Association of Certified E-Discovery Specialists (ACEDS), the premier membership organization of professionals in the field worldwide. Since the exam was first offered in November 2010, professionals in the United States, Canada, the UK, South Korea, Germany and China have earned the CEDS certification. The CEDS certification is compelling evidence that designees are competent and knowledgeable in e-discovery regardless of their professional specialization—whether they are lawyers, litigation support staff, records managers, information technology (IT) specialists, technology officials, court personnel, paralegals or consultants. The credential is an assurance to employers, colleagues and clients that the CEDS-certified professional is serious about efficiency, costeffectiveness, and risk reduction in all phases of e-discovery.

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October 2013 | RES GESTAE

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Legal Briefs Pavese partners named to Best Lawyers list Pavese Law Firm partners Diane L. Jensen, Neale Montgomery and Christopher J. Shields were selected by their peers for inclusion in the 20th edition of The Best Lawyers in America 2014. Jensen was recognized in the practice area of Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law; Montgomery for Land Use and Zoning Law and Shields was selected in the practice area of Real Estate Law. Jensen joined Pavese Law Firm in 1973 and became a partner in the firm in 1978. Her practice areas include bankruptcy, real estate and estate planning and probate. Jensen is a member and past-chair of the Southwest Florida Bankruptcy Professional Association. Montgomery joined Pavese Law Firm in 1986 and became a partner in the firm in 1991. In addition to Land Use and Zoning, his practice areas are primarily real estate and environmental and permitting issues related to the development of land at the local, state, regional and federal levels. Shields joined Pavese Law Firm in 1984 and became a partner in the firm in 1990.  He primarily practices in the areas of subdivision law, master planned residential, commercial and mixed use communities and provides legal counsel to numerous New York Stock Exchange (NYSE) developers, builders, lenders and community associations throughout Southwest Florida.

Lile selected to Best Lawyers list Laird A. Lile, a wills, trusts and estates attorney in Naples, was recently selected through an extensive peer-review process for inclusion in the 20th edition of The Best Lawyers in America 2014 for his work in the fields of Litigation – Trusts & Estates. This year’s honor marks the 16th consecutive year Lile has been recognized as a Best Lawyer. An elected member of the Board of Governors for The Florida Bar, Lile serves on the Supreme Court’s Florida Courts Technology Commission, which oversees, manages and directs the development and use of technology within the judicial branch under the direction of the Florida Supreme Court. Lile is certified as a Wills, Trusts and Estates lawyer, is a Fellow in the American College of Trust and Estate Counsel and serves on its Board of Regents. He is past chair of The Florida Bar’s Real Property, Probate and Trust Law Section, has been included in Woodward/White’s The Best Lawyers in America since 1995 and was named to Florida Trend’s Legal Elite Hall of Fame in 2010.

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RES GESTAE | October 2013

Fort Myers oFFice

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Legal Briefs Cohen & Grigsby attorneys recognized by Best Lawyers Cohen & Grigsby announce that six of the firm’s Naples-based attorneys have been selected by their peers for inclusion in The Best Lawyers in America 2014. Attorneys in the following practice areas have been recognized as Best Lawyers: · Bet-the-Company Litigation: Jason Hunter Korn · Commercial Litigation: Jason Hunter Korn, Kelley Geraghty Price · Corporate Law: Hugh W. Nevin, Jr. · Employment Law – Management: John E. Lyncheski · Labor Law – Management: John E. Lyncheski · Litigation – Construction: Jason Hunter Korn, Kelley Geraghty Price · Litigation – Labor & Employment: Kelley Geraghty Price · Litigation – Real Estate: Thad D. Kirkpatrick · Litigation & Controversy – Tax: Henry C. Cohen; Hugh W. Nevin, Jr. · Real Estate Law: Thad D. Kirkpatrick · Tax Law: Henry C. Cohen;Hugh W. Nevin, Jr. · Trusts & Estates: Henry C. Cohen Additionally, Henry C. Cohen has been named the Best Lawyers’ 2014 Fort Myers Tax Law “Lawyer of the Year” and Hugh W. Nevin, Jr. has been named the Best Lawyers’ 2014 Fort Myers Corporate Law “Lawyer of the Year.”

Hahn Loeser attorneys named to The Best Lawyers Five attorneys in the Southwest Florida offices of Hahn Loeser & Parks LLP have been included in the 2014 edition ofThe Best Lawyers in America: Jeffrey M. Folkman, Naples (Employee Benefits (ERISA) Law; Tax Law);Andrew J. Krause, Naples (Trusts & Estates); Jeanne L. Seewald, Naples (Administrative/Regulatory Law; Copyright Law; Intellectual Property Litigation; Mergers & Acquisitions Law; Trademark Law);John L. Stinziano, Naples (Trusts & Estates); andTheodore L. Tripp, Jr., Fort Myers (Bet-the-Company Litigation; Commercial Litigation; Real Estate Litigation; Trusts & Estates Litigation).

4280 CLEVELAND AVENUE, FORT MYERS, FL 33901 | 2392770005 | www.GARVINLEGAL.com October 2013 | RES GESTAE

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Legal Briefs 14 Henderson Franklin attorneys named Best Lawyers Henderson, Franklin, Starnes & Holt, P.A. is pleased to announced that 14 attorneys were recently selected by their peers for inclusion in Best Lawyers in America 2014. The attorneys, along with their respective practice area and office location include: Charles Basinait, Land Use Zoning Law, Fort Myers Thomas P. Clark, Health Care Law, Fort Myers Michael J. Corso, Professional Malpractice Law and Personal Injury Defense, Fort Myers David L. Cook, Real Estate Law, Bonita Springs David K. Fowler, Real Estate Law, Sanibel and Fort Myers Thomas H. Gunderson, Real Estate Law, Fort Myers Denis H. Noah, Real Estate Law, Fort Myers John A. Noland, Bet-the-Company and Commercial Litigation, Fort Myers David M. Platt, Trust and Estates Law and Litigation, Sanibel Russell P. Schropp, Land Use & Zoning Law and Litigation, Fort Myers Bruce M. Stanley Sr., Personal Injury Defense Litigation, Fort Myers G. Donald Thomson, Commercial Litigation and Real Estate Litigation, Bonita Springs Beth T. Vogelsang, Family Law, Fort Myers and Bonita Springs Guy E. Whitesman, Business Organizations, Closely Held Companies and Family Businesses Law, Non-Profit/Charities Law, Tax Law and Trust and Estate Law, Fort Myers.

Healy named to Best Lawyers Susan Healy, one of the founding partners of Naples Law firm Vernon Healy, has been identified by her peers for inclusion in The Best Lawyers in America for 2014 for Securities Litigation. Vernon Healy represents individual investors and businesses both locally and nationwide in cases involving financial disputes, focusing its practice on areas of the law related to investment and business.

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RES GESTAE | October 2013


The risk of personal information falling into the wrong hands is something we all worry about. The Lee County Solid Waste Division provides secure document shredding services to Lee County businesses at the Lee County Resource Recovery Facility at 10550 Buckingham Rd., Fort Myers (off SR 82). For a nominal fee of $35.00/ton ($12.00 minimum fee) you can ensure that your sensitive information has been completely destroyed. Our staff is HIPPA trained. Paper clips and staples do not need to be removed. For additional information and hours of operation call the Lee County Solid Waste Division @ 239-533-8000.

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Proud policyholder advocates in insurance recovery, risk transfer, additional insured coverage, coverage disputes and denials, claim representation, and bad faith litigation

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Boyle, Gentile, Leonard & Crockett, P.A. also assists individuals and businesses in all types of real estate matters and disputes. 2050 McGregor Boulevard Fort Myers, FL 33901

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RES GESTAE | October 2013

Sanjay Kurian Becker & Poliakoff

David T. Agoston Agoston Law Group

Michael D. Nieman Office of the Attorney General

Celia E. Deifik Ross Lanier & Deifik

Ian A. Northon Roetzel & Andress

David C. Hicks Alliance Legal Group

Dominick V. Lagravinese Jr. Kristianna Rodriguez Grossman Law and Conflict Dominick V. Lagravinese, Jr., Esq. Managment


Calendar of Events Oct 7

Young Lawyers Division Lunch Meeting

French Connection Noon

Oct 11

Membership Committee Meeting RPPTL Practice Section Lunch

Oct 14

Joint Section Brown Bag Meeting: Appellate Law & Alternative Dispute Resolution

Oct 17

Family Law Practice Section Lunch, Law and Order series

Oct 18 Oct 23

Henderson Franklin Jr. Conference Room 1 Noon

Order: Five Attorneys, 10 Rules. Presenters: Luis Insignares, Lori Clifford, Keith Grossman, Bernard King and L. David Sims

Membership Luncheon Meeting “Pro Bono Service Awards” at Sidney & Berne Davis Art Center 11:45am Sponsor: IBERIABANK

Hump Day Happy Hour

5-7:30 pm - Special Day & Location Grand Opening at Copy Lady’s New Location 1949 Dana Drive, Fort Myers Mary Evans’ Office 5:15pm

Nov 1 Nov 8

Lee County Public Works, 1500 Monroe St, 1st FL Conf Rm 11:45am

Young Lawyers Division Lunch Meeting French Connection Noon

Membership Committee Meeting

Henderson Franklin Jr. Conference Room 1 Noon Noon

Nov 16 Nov 21 Nov 22

Gray | Robinson is fiercely committed to Florida with 11 full-service law offices. We are deeply connected to both our clients and the communities we serve.

Land Use & Governmental Law Practice Section Lunch Meeting

RPPTL Practice Section Lunch

Nov 10

Floridian

Lee County Justice Center, Room to be determined Noon

Executive Council Meeting

Oct 31

Extremely

Executive Council Meeting Mary Evans’ Office 5:15pm

Judge Lundy’s Buckingham Bar-B-Q

6250 Jackson Road, Fort Myers, FL 33905 1:00 pm Sponsors: iBERIABANK; CopyLady; Henderson, Franklin, Starnes & Holt, PA

Naples Attorneys Gary Carman Dennielle Downes Casaletto Amy L. Garrard Michael D. Randolph Burt L. Saunders Carl E. Westman

Family Law Section Brown Bag Lunch Lee County Justice Center in Court Room 5C Noon

Membership Meeting “Annual Meeting” Location TBA 11:45am

Boca Raton | Fort Lauderdale | Jacksonville Key West | Lakeland | Melbourne | Miami Naples | Orlando | Tallahassee | Tampa Visit us online at leebar.org to see the entire LCBA Annual Calendar and conveniently RSVP for upcoming events. Would You Like to Submit an Event? Email your event submission to resgestae@leebar.org

8889 Pelican Bay Blvd., #400 Naples, FL 34108

239-598-3601 l www.gray-robinson.com October 2013 | RES GESTAE

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P.O. BOX 1387 | FORT MYERS, FL 33902-1387 (239) 334-0047 | FAX (239) 334-0523 WWW.LEEBAR.ORG

Here for you… yesterday, today and tomorrow Lending Team – From left bottom row: Pam Edwards, Vice President, Lending; Leah Kirby, Vice President, River District Office Manager; Robbie Roepstorff, President From left middle row: Willy Ocasio, Captiva Office Manager; Rob Lisenbee, Vice President, Sanibel Office Manager; Kim Nyberg, Vice President, Professional & Executive Banking; Liz Aurensan, Vice President, Lending From left back row: Geoff Roepstorff, CEO; John Ammons, Vice President, Cleveland Avenue Office Manager

Some things should never change, and the commitment and dedication of your bank is one of them. As the oldest locally-owned and operated bank in Lee County, we have been here for you for decades with quality service, personal care and local decision making. That is something you can always bank on. See us for a business loan or a fixed rate residential loan to purchase or refinance. Now is the time to invest in the future, with your local bank.

We make banking about YOU! 13000 S. Cleveland Ave. Fort Myers, FL 33907 239.466.1800

2105 First St. Fort Myers, FL 33901 239.334.4668

www.edisonnationalbank.com An Equal Housing Lender • Member FDIC Bank of the Islands is an office of Edison National Bank.

1699 Periwinkle Way Sanibel Island, FL 33957 239.472.7211

14812 Captiva Drive Captiva Island, FL 33924 239.395.0248

www.bankoftheislands.com


Res Gestae - October 2014