Res Gestae - May 2013 by Lee County Bar Association

RES GESTAE

THE OFFICIAL PUBLICATION OF THE LEE COUNTY FLORIDA BAR ASSOCIATION

MAY 2013

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RES GESTAE | MAY 2013

Contents 6

Letter from the President

Letter from the Editor by Nanci DuBois

by Mary C. Evans, Esq.

239.334.0047 resgestae@leebar.org

staff box

Lawfully Wed Attorney couples make it work, in practice and life by Sara Fitzpatrick Comito

Dean Milhizer’s Side Bar Gun control, the second amendment and your natural rights by Dean Eugene R. Milhizer

Appellate Brief-Writing 101 Appellate traps for the unwary by Margaret H. White-Small

Terry’s Take on Things

Reflections on “judging” (albeit part time) for almost two years! by T. Rankin Terry, Jr., Esq.

The “Economic Loss Rule” Returns to Its Roots by Jamie Schwinghamer, Esq.

22 22

The Great E-Qualizer

With the help of technology, justice is served by Sara Fitzpatrick Comito

Fact or Fiction?

Breakfast is the most important meal of the day by Lora Ulrich

On the Bench Hon. Josephine Gagliardi by Sara Fitzpatrick Comito

From the Bar

Marcus W. Viles, Esq. by Sara Fitzpatrick Comito

The Dish

The Veranda by Sara Fitzpatrick Comito

31 4

RES GESTAE | MAY 2013

31 34

Social Scene

44 45

Calendar of Events

Legal Briefs News and Happenings

100 Club Members

Publisher Connie Ramos-Williams 239.690.9840 Editor-IN-Chief Anne Dalton, Esq. Executive Editor Nanci DuBois 239.334.0047 Associate Editor Sara Fitzpatrick Comito Layout and Design Kat Godina Advertising Director Linda Fiore 239.690.9840 Contributing Writers Sara Fitzpatrick Comito Nanci DuBois Mary C. Evans, Esq. Dean Eugene R. Milhizer Jamie Schwinghamer, Esq. Margaret H. White-Small, Esq. T. Rankin Terry, Jr., Esq. Lora Ulrich 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: Attorneys Brian Scott Bartley and Amanda Mitteer Bartley Cover Photo: Nicole Z Photography 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.

RES GESTAE | MAY 2013

Note from the President Lee County Bar Association I’m all about creating win-win solutions for my clients, for my family, and for myself. But sometimes, no matter how hard I try, I just have to face a loss – whether it be something simple, like a local team losing a ball game, or something difficult, like losing a beloved colleague. In either situation, however, I believe it is how one handles the loss that is most important. Imagine a loss as being like standing at a fork in the road. There are only two directions available: one leads to a negative path and one leads to somewhere positive. Take the negative path and one might become angry, sad, or, the worst possible outcome in my mind, a victim. On the other hand, one might take the positive path and face the loss with grace, professionalism, and a good attitude – just like the Florida Gulf Coast University men’s basketball team did after being defeated by the Gators. I never knew what March Madness stood for, nor did I know the term Sweet 16 referred to anything other than a teenage rite of passage. Now I know those terms are synonymous with commitment, dedication, and good old-fashioned hard work. I only became interested when, in passing (literally, I was passing by the TV) I noticed FGCU making dunk after dunk against Georgetown. It was already past half-time when I started watching, but I could not take my eyes off the screen. Not only because of the scoring, but because I was also watching our hometown boys play their hearts out. They were committed, focused, and obviously playing because they loved the game. What a concept! Two nights later, I watched the entire game, happily screaming at each score as if the team from my alma mater could hear me cheering them on. Fast forward one week, past an anxious wait for the next game and past some good-natured trash talking to my Gator-fan friends, and I find myself only slightly disappointed by the outcome. Why? Because FGCU faced the result with grace, professionalism, and the utmost in sportsmanlike conduct. And so did the Gators. There was no trash-talking, no obnoxious happy-dancing, no rubbing it in. Young basketballstar wannabe’s saw a good example set, and a community pulled together in excitement for basketball. Who could ask for more than that!? I am reminded of a line from the movie The Green Mile. It was near the end when the woman realizes the main character is a lot older than he looks – the result of his having been healed decades earlier by someone’s touch. She opines: “He infected you with life.” Infected? With life? Yep. It’s possible. As you face the rest of your day, the rest of your week, the rest of your career, I truly hope you practice as if you were infected with life. Perhaps along the way you, too, will infect others with life as well. Now THAT would be a win-win result. |RG| Mary C. Evans, Esq. mary@maryevanslawyer.com | (239) 226-1062

RES GESTAE | MAY 2013

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 Scott Atwood, Esq. Law Week Hon. John S. Carlin Library Robert L. Donald, Esq. Mock Trial VACANT Past President Karla Y. Campos-Andersen, Esq. Pro Bono Vanessa Cordero, Esq. and Katie Berkey, Esq. MEMBERSHIP Kelly Fayer, Esq. Social Events Kelly Fayer, Esq. & Amanda Mitteer-Bartley, Esq. technology Michael E. Chionopoulos, Esq.

practice section chairs

Alternative dispute resolution Anne Dalton, Esq. criminal law Keith Upson, Esq. Real Property, Probate & trust law Kenneth Kemp, Esq. General Civil & Business Litigation J. Jeffrey Rice 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 Ad Directory Today I had a visitor show up in uniform. No, I haven’t been arrested! I at first did not recognize Hugh Ashley, a former intern student with our offices. He was in town to pay a visit after spending a little while on Parris Island in South Carolina. That’s right- my slightly “outta shape” high school student office assistant has morphed into a trim and focused Marine, complete with “highand-tight” haircut. Standing ramrod straight and tall in his dress uniform (yes, they really do have leather necks), resplendent with National Defense Service Medal Ribbon and Marine Corps Rifle Expert badge, Hugh now goes on to Pensacola as a Private First Class, having come through college studying criminal law. As a Marine, he will be training in avionics, and has a five-year plan that has his career tracking beautifully toward an exciting and rewarding future. Perhaps he will continue his studies in criminal law, or maybe another course. In any case, another youth from our internships has launched into adulthood and is making me proud to know him. And I hope he comes back to visit us often… maybe to return as a lawyer in Lee County. Another one of my student interns has flown the nest for now, and it’s with tears of pride that I send him into the world. We have many opportunities to make a difference for our young students through Lee County Bar Association, and when someone from one of our area high schools and colleges asks to spend a summer vacation from school gaining experience in your law office, I hope you will not only consider the benefit to your office. There’s a hidden benefit: the rewarding feeling you will personally gain from knowing you helped shape the student’s work ethics by taking mentoring time with him or her. Hugh Ashley’s sister, Zoë Ashley, also a former intern with our office, has been successfully placed with a local law office for next summer. I’m still looking for a spot for another of my extraordinary interns, and you may be delighted with those older students seeking positions from Ave Maria School of Law, too! |RG| Check out our Calendar of Events and stay involved with YOUR Bar! Member-at-Large Kelly Fayer is your liaison to the Executive Council, so do connect at TellKel@leebar.org with any suggestions you have, in order to make our Bar the best it can be, won’t you? Nanci G. DuBois info@leebar.org | (239) 334-0047 ext. 102

RES GESTAE | MAY 2013

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d e W y l l u f w a

work, t i e k a ples m u o c y e d life n a Attorn e c i t in prac

by Sara Fitzptrick Comito

Teamwork, communication and respect – these are all

a lot of attention, of course. “In this day and age, they almost

elements of a successful partnership, whether in work or family

expect 24-hour service.” Consequently, he and his wife Amanda

life. That separation isn’t so definitive, though, when you and

Brock, who works in the same firm, try to stagger their work

your spouse are both attorneys, not to mention the pressure

hours so they can attend to their two young children, ages

practicing side by side can add. Inside the LCBA, though,

three and five months. It’s not always easy, and Brock admitted

are several lawyer couples who make it look easy. Res Gestae

the adjustment to life with the second child has been a learning

set out to identify the particular rewards and challenges and

process, but one that’s been completely worth it. “The smiles

discover how these dynamic duos make it all work.

you get from the baby are the best reward,” she said.

Tried and true

She said communication and cultivating patience are key.

Linda and Herb Fried have worked in the same practice for 30 years. It was a solution that provided the flexibility needed to raise their three boys. And they’re starting over in a sense, now that they’re also raising a seven-year-old granddaughter. The framework they’ve modeled over the years faithfully serves them still. Linda said it’s always a challenge not to bring work home, but separating work and family is a top priority. “It’s the last thing in the world the kids want to hear at the dinner table, what happened in our day.” As much as possible the couple endeavors not to work late into the evenings or on weekends. That’s not always an easy thing to do, as Luis Rivera of Henderson, Franklin, Starnes & Holt, P.A. attested. “This is a very time-intensive profession,” he said. Clients also demand

RES GESTAE | MAY 2013

IRAC (Issue, Rule, Application, and Conclusion) may serve

an attorney well in preparing legal analysis, but that kind of calculating methodology is better left out of the interpersonal relations of husband and wife.

Ch-ch-ch-ch-changes Brian Scott Bartley is the managing partner of Kelley Kronenberg’s Fort Myers office. His wife Amanda Mitteer Bartley is the workers' compensation managing attorney of Vernis & Bowling of Southwest Florida, P.A.’s Fort Myers Office. Their first child, Ava, was born February 5 of this year. Brian recalled, “The entire time Amanda was pregnant, everyone – friends, family, complete strangers at Publix – would tell us ‘your lives will change.’” He said they were right. “Obviously, anyone who thinks otherwise is delusional.” But the change is all for the better.

Different strokes

Many of the couples we talked to like bouncing ideas off each other, and enjoy the fact his or her spouse understands the unique pressures an attorney deals with. “One reward of both being lawyers is that we ‘get’ each other and the type of day we had while practicing law,” said Amanda Mitteer Bartley. Amanda Brock concurred, “It’s kind of nice to have that shared reference of what the other person is talking about.” Some find it beneficial to their relationship to manage different aspects of the firm, like at Fried and Fried, where the partners have typically always had separate cases. “But there are times we were able to bounce ideas off each other Amanda agreed, and said that in addition to the indescribable love the new parents feel for their daughter, they feel closer as a couple. “It also teaches you as a couple additional team work skills, patience (which I never had before, ask my paralegal, Lindsay), and time management.” The Bartleys did at one time practice together, and although they said they worked very well together, their career trajectories brought them to different firms. Tricia and Randall Spivey, however, enjoy the flexibility practicing together offers. They admit it’s challenging, yet rewarding. Tricia said working together at the Spivey Law Firm, Personal Injury Attorneys, P.A. allows the duo “to maintain complete decision making over the firm’s business activities.” RES GESTAE | MAY 2013

more freely than with someone who wasn’t your spouse,” said Linda. Herb now mostly does mediation outside of the office. At Henderson Franklin, Luis Rivera works in commercial litigation and bankruptcy and his wife is an environmental and land use attorney. The two often don’t even see each other at the office. The Spiveys, however, like to pool their expertise. Tricia explained, “In a recent case involving an elderly plaintiff, which we successfully settled, Randy focused on the litigation and trial preparation while I covered important events such as CMEs with the clients and depositions.” She said the team approach works for them and ultimately helps ensure the best outcome for clients in their personal injury and wrongful death cases. All of our attorney couples expressed these principles for a healthy relationship: separate your work and professional lives, listen to and honor your partner, prioritize and work to manage your time effectively, be patient and consider your partner as your teammate. They all agreed the rewards outweigh the challenges. The most important thing to remember is this: family matters most of all. As Amanda Mitteer Bartley said, “Life flies by in the blink of an eye.” |RG|

RES GESTAE | MAY 2013

Keeping it Together A psychological perspective

“If you’re going to work together in the same business as your spouse or run your own practice together, you must put maintaining the loving relationship above all other considerations.” This is the sage advice of Dr. Robert Silver, a Fort Myers-based psychologist. His interest is more than professional, however. He and his wife, Dr. Deborah Coe Silver, are co-directors of the 35-year-old Silver Psychology Center. The two board-certified psychologists find it advantageous to focus on different aspects of the business, and Robert suggests capitalizing on the complimentary skills of each partner in the relationship and business. Between the two Silvers, he mostly handles business and clinical matters, and she focuses on personnel issues, although there’s always opportunity to consult with each other. He acknowledged, “Conflict is inevitable. Therefore, your aim should never be to win an argument, but to conduct discussions.” He highlights the difference this way: “Discussions are exchanges of viewpoints and information, the outcome of which should be a mutually agreed upon solution.” It might take a bit of mental flexibility for an attorney to aim not to win. However, the stakes are even higher in a relationship than they are in a legal case. “You’ll lose the marriage if you win the argument,” he said. The bottom line, explained Silver, is this: “You must admire and respect your spouse or partner.” And your employees see pretty much everything that happens in a practice. “So all your behavior toward your spouse and partner must reflect this admiration and respect.” |RG|

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RES GESTAE | MAY 201310/12/12 139:13 AM

Dean Milhizer’s Side Bar

Gun Control, the Second Amendment and Your Natural Rights By Dean Eugene R. Milhizer As a consequence of the recent tragic and well-publicized

events involving gun violence in Newtown and elsewhere, there arises an understandable urge, especially on the part of some legislators, to do something about it. Carpenters try to fix problems with hammers and law makers try to fix problems with new laws. And so, predictably, new legislation relating to gun ownership is now being vigorously debated. It is important to step back from all the posturing and bluster and recognize that gun regulation is different in kind from regulations addressing other potentially dangerous products and activities, such as jet skies, bungee jumping and poisons. The right to bear arms enjoys a special constitutional protection, and thus we should be especially circumspect when considering legislation that might burden that right. When evaluating the limits of Second Amendment protections, it is important to consider the Amendment’s origins and scope. In 2008, the Supreme Court issued the landmark decision in Heller v. District of Columbia. Justice Scalia, writing for the majority in Heller, held unambiguously for the first time that the Second Amendment guaranteed an individual rather than a collective right to keep and bear arms. Quoting Blackstone, Justice Scalia referred to a “natural right of resistance and selfpreservation” and “defense” that pre-existed the Constitution. Justice Scalia traced the origin of these rights to the English common law. While Justice Scalia was correct insofar as he recognized that the right to keep and bear arms was an individual right that predated the Constitution, his conclusion that the right was traceable exclusively to the common law is overly narrow. The Framers, just as the common law, recognized a natural right to self-defense. This natural right predates and undergirds both the common law and the Constitution’s Second Amendment. Indeed, as self-preservation and self-defense are natural rights, they are neither bestowed by the government nor may they be ceded to it. Of course, in a civil society the exercise of natural rights are not absolute. Their exercise may not unduly infringe on the natural and constitutional rights of others. For example, freedom of religion cannot shield human sacrifice, nor can freedom of speech excuse shouting fire in a crowded theatre. The respectful interplay of protected liberties is among the objectives the Framers addressed when crafting the Constitution, and this objective should inform contemporary

RES GESTAE | MAY 2013

legislators when they engage in law making. It would be imprudent and even immoral to seek a pragmatically beneficial end, no matter how well intended, if the means of achieving it requires unduly burdening a natural right that enjoys express constitutional protection. So as law makers consider gun control legislation, they must remember that they are not regulating jet skies or bungee cords. They must conform any new legislation to the Second Amendment right to keep and bear arms, which is ultimately derived from the natural law rights of self-preservation and self-defense. Consistent with these first principles, legislation can surely be crafted to keep guns away from criminals and the mentally ill without disregarding the inalienable rights of law abiding citizens. All responsible law makers should join together to seek this proper goal. |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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RES GESTAE | MAY 2013

APPELLATE BRIEF-WRITING 101 APPELLATE TRAPS FOR THE UNWARY By Margaret H. White-Small, Esq.

You just finished a trial, your client lost, and you are convinced that the trial court committed error that should be remedied on appeal. Before you get too invested in the idea, it is wise to take a few moments to “step into the shoes” of the appellate court in order to assess the viability of your issue(s) on appeal. While all lawyers know that an appeal is not the equivalent of a new trial for the presentation of new evidence, not all lawyers are aware of the peculiar constraints, presumptions, and principles that guide the appellate court when it is asked to review a trial court order. Consequently, these principles can become traps for unwary lawyers who do not have at least a passing familiarity with them. The first such trap for the unwary is the “presumption of correctness.” This means that the decision of the lower tribunal is presumed to be correct. It is important to realize before you start that due to the “presumption of correctness,” the deck is already somewhat stacked in favor of whatever it was that the trial court did. You, as the appellant, have the burden of overcoming this presumption by demonstrating that the court committed reversible error. While there is an exception to this presumption where the trial court has declared a state statute facially invalid, and the presumption is not as strong where there is a competing presumption (as in an appeal from a summary judgment where all possible inferences must be drawn in favor of the losing party) or where the judgment is based upon written reports or documents (because the trial court judge was in no better position to evaluate the truthfulness of such matters), the general rule is the trial court’s action is presumed correct. This brings us to the second trap for the unwary — an inadequate record. Given the presumption of correctness and the appellant’s burden to overcome this presumption by demonstrating the presence of reversible error, it quickly becomes apparent that the record on appeal is critical to

RES GESTAE | MAY 2013

appellate success. Due to the presumption of correctness, where there is no record support for the appellant’s claim of error, the appellate court simply assumes that there was no record support and affirms. As the Florida Supreme Court explained in the seminal case addressing this issue:

Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.

Applegate v. Barnett Bank, 377 So. 2d 1150, 1152 (Fla. 1979) While it is true that Florida Rule of Appellate Procedure 9.200(f)(2) provides an escape mechanism by stating, “no proceeding shall be determined, because of an incomplete record, until an opportunity to supplement the record is given,” the wise practitioner will not rely on that provision but will provide the court with all of the potential record support that can be found in order to persuade the court to reverse. See Fay v. Craig, 99 So. 3d 981, 981 (Fla. 5th DCA 2012)(“appellants proceed at their peril when they furnish a partial transcript”; Smith v. Smith, 39 So. 3d 458 (Fla. 2d DCA 2010). The third trap for the unwary is closely linked to the second – preservation of error. While you are reviewing the record to ensure that the record supports your claim of error, you should also review the record to be certain that the error you intend to raise was preserved below. The general rule here is that unless the error is fundamental (more on that later), it must be raised below by motion or specific contemporaneous objection at the

appropriate stage of the proceeding. Thus, if you believe that the court improperly refused to admit certain evidence, you must make a proffer of that evidence in order to properly present the issue to the appellate court. Without the proffer, the appellate court has no way of knowing whether the excluded evidence was properly excluded or not, since it does not know what the evidence was. See § 90.104, Fla. Stat. (2012). Such excluded evidence cannot be reviewed on appeal unless it was made a part of the appellate record below and was actually considered and ruled upon by the trial court. As alluded to above, not only must there be a proper objection below, but the trial court must have entered a ruling on that objection. Without a trial court’s ruling on the issue, the appellate court has nothing to review. Appellate courts review decisions of lower tribunals; they do not make abstract determinations on matters that were not properly presented and preserved below. While fundamental error is the exception to the preservation rule and will be addressed by the court even if not preserved below, it is wise to avoid reliance on the fundamental error doctrine and preserve, preserve, preserve. True fundamental error is rare, generally involving jurisdictional errors, due process errors, or complaints that state no cognizable claim supporting the judgment on review. Since most appeals do not present this type of error, and the absence of preservation can be fatal, the fundamental error doctrine generally will not save unpreserved error. It is important to note here that even constitutional issues are not always fundamental. Be safe — if you are trial counsel, properly preserve your error; if you are appellate counsel, be sure that all issues you raise on appeal were properly preserved below. Even if the error was properly preserved and ruled upon, yet another trap awaits. If you are considered to have “invited” the error, you cannot be heard to complain of it. In other words, you will be considered to have waived any issue on appeal that you essentially caused. Thus, a claim that the trial court improperly admitted certain evidence that you presented for admission is considered invited, non-reversible error. Likewise, the appellate court will not address error that you invited by “opening the door” to its admission. This often arises where one party’s examination of a witness “opens the door” to damaging cross-examination by the other side. Before raising an issue on appeal, be sure that the error that you intend to raise was not somehow “invited.” The fifth trap for the unwary, waiver, is closely related to invited error. Even if the error has been properly preserved and was not invited, if you fail to raise it in your brief on appeal, that issue is waived and will not be addressed by the court. In other words, be sure to comb your record thoroughly to ensure that you raise all preserved issues in your brief, since the appellate court will not pluck issues out of the record for

review that have not been brought to its attention by the briefs. It is incumbent upon you, as the appellant, to raise those issues that are properly preserved in order to avoid waiver. The sixth trap, the harmless error rule, is the one that is most difficult for clients to understand and accept because it seems so unjust. It is hard to explain to a client that even though the trial court committed error, that does not mean that the error is reversible. Even in the face of clear error on the part of the trial court, an appellate court will not reverse unless the error is considered harmful error. In other words, unless the error “harmed” the appellant, there will be no remedy for it. Error is generally deemed harmful if there is a reasonable probability that the result would probably have been different without the error. This is a high bar to overcome. In making this determination, the first question is whether the error was material to the court’s decision. If not, it will be considered harmless. Again, the job of appellate courts is to review and correct those errors that affect the outcome of the case; they do not analyze and review abstract legal issues that did not substantively affect the result. Finally, even experienced appellate practitioners can become mired in the seventh trap for the unwary – the tipsy coachman doctrine. See Dade County School Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999). The shorthand explanation of this trap is that even if the trial court offered the wrong rationale for its ruling, that ruling will be upheld if there is a correct, even un-articulated, rationale to support it. In other words, an order will be affirmed if it is correct for any reason. While the record must support the alternative rationale, this “trap” is often used by appellate courts to affirm an order that from all other appearances is reversible. While this list of traps that the unwary lawyer may fall victim to is not exhaustive, it does address some of the most common appellate principles and doctrines that can become roadblocks to successful appellate review. By carefully examining your case with an eye to these traps, you can more properly assess your case for cognizable issues on appeal because you will be able to “step into the shoes” of the appellate court and will know what the court is looking for as it reviews the issues you raise on appeal. |RG|

Margaret H. White-Small, Attorney at Law, provides appellate and legal research and writing services to both civil and criminal lawyers on a contract or project basis. She spent nearly twenty-two years as a senior staff attorney at the Second District Court of Appeal and is now based in Lee County. She may be reached at (239) 579-0267 or at mwsnsanibel@aol.com.

RES GESTAE | MAY 2013

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RES GESTAE | MAY 2013

Terry’s Take On Things

Reflections On “JJudging” udging” (albeit part time) for almost two years! By T. Rankin Terry, Jr., Esq. I have not gotten used to being called “Magistrate Terry” the two days a month I sit, and have not set off a security alarm in months.

Some observations: Since becoming a lawyer over 41 years ago I have believed that the most effective way to make sure that judges “do right” is to require them to write the reasons for their decisions. In my many years on the commission that nominates workers’ compensation judges I forcefully preached that judges should always write their own orders. Now, having done it for several months, I am convinced that I have been right all these years. I have adopted a few practices that I hope have done some good. I make the Best Interest of the Child provisions of the statutes a part of every order and judgment involving children. I redefine Petitioner and Respondent as Mother and Father, t and if no children, as Wife and Husband. Family law orders and judgments often require people to do things that they are not happy doing. I figure that, for example, ordering a Father to do something is much more personal than ordering a Respondent to do it. I hear all of the “Simplified” Dissolutions under Family Law Rule 12.105. Note, the “Simplified Docket” is a fast way to complete a case with a written marital settlement agreement. We don’t mind late additions to the dockets. Both parties must come to court at 8:30 a.m. (lawyers don’t have to come!). Heaven forbid that Florida becomes a “divorce mill” – thus the 20 day from filing rule.

E-Filing & E-Service, attenuation of individual responsibility: The Supreme Court has gone into e-filing and e-service big time. When it first came up several years ago I opposed it because giving an employee your “password” is not the same as signing your name. Pleadings and papers (soon to be called documents) no longer come from lawyers, but from the laity. The Florida Bar and Supreme Court “tying the can” to some lawyer’s tail for practice rule violations is likely to become

more difficult. All of this erodes the “threshold rule,” that is, all mistakes on the “public side” of a lawyer’s office door’s threshold are the lawyer’s mistakes, not a paralegal’s, not a secretary’s, not another non-lawyer employee’s. Every document filed should go out over a lawyer’s name, not a lay employee’s. The opinions expressed are solely those of the author and not those of the Lee County Bar Association, Inc. or any other of its members. |RG| T. Rankin Terry, Jr., BSME (Kentucky), JD (Washington Univ. St. Louis), LLM (Tax) (Florida), has been board certified in Civil Trial since 1983 and a Certified Mediator since 1994. He has practiced in Fort Myers since 1972. His email address is trterry@gmail.com.

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The “Economic Lo $$ Rule” Returns to its Roots By Jamie Schwinghamer, Esq. In a landmark decision, the Florida Supreme Court receded from over two decades of precedent, and held that the “economic loss rule” applies only in the products liability context. Tiara Co. Assoc’n, Inc. v. Marsh & McLennan Companies, Inc., 2013 WL 828003 (Fla. Mar. 7, 2013). The economic loss rule, a judicially created doctrine, was often misapplied and misunderstood by practitioners and the courts alike. In practice, the economic loss rule was originally intended to set forth circumstances under which a tort action would be prohibited if the only damages suffered were economic in nature. While the rule originated in the products liability context, over the years it was expanded “to circumstances when the parties were in contractual privity, and one party sought to recover damages in tort for matters arising from the contract.” Id. at *2.* The expansion of the economic loss rule was intended to prevent parties in contractual privity from circumventing the limits on recovery established in the contract by also seeking to recover damages in tort. Id. The contractual privity application of the economic loss rule resulted in numerous Florida courts holding that a tort action was barred where the defendant had not committed a breach of duty separate and apart from the breach of contract. Id. In its opinion, the Supreme Court recognized that for a number of years it had been “concerned” with what it perceived as an “overexpansion” of the economic loss rule. This concern was first expressed in Moransasis v. Heathman, where the Supreme Court acknowledged that while the Court continued to believe the outcome of other decisions was sound, it “may have been unnecessarily over-expansive in [its] reliance on the economic loss rule as opposed to fundamental contractual principals.” 744 So. 2d 973, 981 (Fla. 1999). With this backdrop, in Moransasis the Supreme Court refused to apply the economic loss rule

to actions based on fraudulent inducement and negligent misrepresentation. Id. Five years later, the Supreme Court reaffirmed the application of the economic loss rule in the products liability context, but again expressed its concern with the over-expansion of the doctrine. Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So. 2d 532, 542 (Fla. 2004) (“Several justices on this Court have supported expressly limiting the economic loss rule to its principled origins.”). The Supreme Court characterized its more recent decisions as an “effort to roll back the economic loss rule to its products liability roots.” Tiara, 2013 WL 828003, at *6. However, in each instance the Supreme Court left a number of exceptions intact, leading the Court to determine in Tiara that it “simply did not go far enough.” Id. at *7. The Florida Supreme Court held that it will depart from precedent “when such a departure is necessary to vindicate other principals of law or to remedy continued injustice.” Id. (citations omitted). In sum, the Court stated that its “experience with the economic loss rule over time, which led to the creation of the exceptions to the rule, now demonstrates that expansion of the rule beyond its original origins was unwise and unworkable in practice.” Id. |RG|

Jamie Schwinghamer, Esq. is a senior associate in the Naples office of Hahn Loeser & Parks LLP, and focuses her practice on complex commercial litigation and estate and trust litigation. To learn more visit www.hahnlaw.com. * Id-(˘ıd)—Lat.: the same, the very same, exactly this, likewise; abbreviated form of the word “idem.” This term is used in citations to avoid repetition of the author’s name and title when a reference to an item immediately follows another to the same item. Background Image © Rich Johnson

RES GESTAE | MAY 2013

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Some LCBA members never lived in a world without the Internet. In another decade or so from now, there will be members who will have never dealt with paper case files. As the song goes, “Times, they are a-changin’ (and there are probably those among us who have never heard a Dylan tune). Generational differences aside, the business of law necessarily incorporates technologies that continually put the letter “E” in front of more and more words.

Paper cuts When Linda Doggett moved from her leadership position in the technology department of the Lee County Clerk of Courts in 2000 on to a new role as director of court-related services, it signaled a growing awareness that the future of the judicial system would happen in bits and bytes. She freely acknowledges she was a little naïve back then, remembering how she thought at that time In a couple of years we’ll be paperless. Doggett went on to become chief operating officer before being elected as our new clerk last November. Paper has been a hard habit to break, but she estimates approximately 50 percent of the courts’ operations are now paperless. She said the real measure of the electronic initiatives’ success so far consist of time and money. As successive mandated deadlines from the Supreme Court related to electronic procedures come and go, Doggett thinks our attorneys have been too savvy to be caught off guard, and are in fact enjoying the benefits of their increasingly digital existence already. She said the changes enable everyone to be more efficient, from the attorneys to the sheriff ’s office to the courts themselves. Trials are speedier as a result, inmates are processed through to their prison facilities, attorneys incur fewer travel expenses. Progressing toward the paperless future means justice is able to be more swift at a lower cost to society.

Safe keeping Mike Chionopoulos of Absolute Law is the chair of the Technology Committee for the LCBA, whose mission he said

RES GESTAE | MAY 2013

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is to “assist the bar in developing technology that will better serve our members and interface seamlessly with the court system’s current E-Filing and upcoming and future technology advancements in the court system.” He’s not as confident as Doggett that our attorneys are ready for all the changes. He said as electronic document mandates are passed down, it’s better to become well versed in the new procedures as they become available. However, not everyone’s heeding that advice. “I’ve been shocked that it seems like at least half of the lawyers I’ve talked to have not signed up for E-Filing, or used E-Filing.” Another major consideration in this digital age is data storage and backup. An old saying in the computer world – and yes, the computer world is now old – is, “There are two kinds of people in the world: those who have lost data, and those who will.” Chionopoulos said his office has gone as paperless as possible and backs up data twice a day to these places: - two separate external hard drives - the cloud - Carbonite - a local backup service The idea is to spread the risk around. “I think it’s impossible for all of those sites to have corrupted backup data at one time,” he said. The cost of all this peace of mind? Less than $50 a month. It’s better than renting a separate storage facility, as he used to.

The uncertainty principle T3 Communications and its professional services group, IT Vantage, offers a suite of technology solutions including managed IT services, cloud services, hosted phone services and business technology consulting. Customer Relations Manager Deirdre Carrington said many firms are not prepared for the worst. “What happens when disaster strikes? Have you done a full restoration on your ‘back up’ tapes – did it work, or do you just assume it will? Where do you store these tapes? Remember

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your backup is only as good as the last test restore.” Not only that, she said, but let’s remember big disasters sometimes come in small packages. “Hurricanes are bad news but so is a leaky roof, fire or a misplaced cup of coffee. Are you ready?” It may seem like the more questions asked, the more questions there are to ask. That’s why it’s important to have either competent dedicated staff, or to contract with a company like T3. Vice President of IT Services Jeremy Stakely said knowledge of the Information Technology Infrastructure Library is a prerequisite. “The ITIL is a standard for IT practices in regards to processes and procedures. By following ITIL standards a business will stay at least 90% in compliance with HIPAA, PCI, and Sarbanes Oxley. Another important best practice is being familiar with hard drive data encryption processes. Finally, having the ability to set up a Private WAN between offices is extremely beneficial in that sensitive data is not only encrypted, but never crosses the public Internet.” If all of these acronyms seem like alphabet soup, maybe it’s time to re-evaluate how you are taking care of your data.. Fort Myers Mayor Randall Henderson is also T3’s chief operating officer. He said, “Clearly, the federal government and other governments are going to encourage electronic filing and moving away from hard copies and paper, and that’s not going to slow down – it’s going to increase.” As if keeping up with case law and finding enough hours in a day to keep your clients and family happy weren’t enough, your success as a lawyer and business person depends on understanding and embracing the new technologies as they come along. In the end, however, technology will help you better serve your clients, and make managing your time and office more efficient, putting all firms on a level playing field, regardless of size. |RG|

Pixar had a backup scare while working on the popular animated film Toy Story 2. Their server crashed and they lost all their data. Pixar thought everything was replaceable because they trusted their backups were working properly. No one checked the backups to make sure. In fact, the backups were failing and there was no backup at all. Luckily, an employee had backed up the movie on her laptop and Pixar was able to restore the data. This is a great example of how your backup is only as good as the last test restore. To watch an amusing short animation that tells the tale of how your kids almost didn’t get to see Toy Story 2, visit www.youtube. com/watch?v=8dhp_20j0Ys |RG|

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Fact or Fiction:

Breakfast is the most important meal of the day By Lora Ulrich

For most people, getting in a solid lunch and dinner are standard, but breakfast is different. Some of us stick with the notion that breakfast is the most important meal of the day, while others find a reason to skip it all together. Once you eat breakfast, your body starts working immediately to convert the food into energy. When you start the day off with a good dose of energy, it’s easier to complete daily tasks more quickly and efficiently, helping you stay happy, productive, and optimistic. After not feeding your body for eight hours overnight, holding off until lunchtime to eat can make you grumpy and sluggish throughout the day. When you do eat lunch, because your body feels starved, you’re more likely to choose foods high in calories and fat to satisfy your cravings. In a 2011 Journal of Nutrition study, 12 men of healthy body weight were divided into breakfast and non-breakfast groups. The non-breakfast group had increased appetite and much higher insulin resistance at the next meal compared to the breakfast group — both of which contribute to weight gain and unhealthy eating habits. This only becomes fact if you follow the guidelines of a truly healthy breakfast. A pan of greasy bacon, buttery hash browns, or syrup-covered pancakes is certainly not the best choice. A breakfast rich in protein, fiber, and healthy carbohydrates should be the focus for a healthy diet. Healthy choices include a vegetable omelet, steel cut oatmeal with nuts or fruit, Greek yogurt with fresh fruit, cottage cheese with fresh fruit, or a balanced meal-replacement shake. Sticking to a healthy breakfast has been found to boost metabolism and keep it running more efficiently throughout the day. |RG|

Lora Ulrich is the Co-Founder of XLR8 Body Transformation Institute, an International Lifestyle Coach, Certified Nutrition & Wellness Expert, Speaker & Entrepreneur. XLR8 Body Transformation works with individuals, groups and businesses to help them achieve a Healthy Lifestyle focusing on creating Balance & Wellness in nutrition, fitness and stress reduction. She can be reached at 239-898-4078 or info@xlr8lifestyle.com

RES GESTAE | MAY 2013

On the Bench The Hon. Josephine Gagliardi Judge Josephine Gagliardi was born of immigrant parents, a seamstress and tailor. Together they stitched together a moral fabric that endured. “They came from a poor background, but my mom and dad always stressed education.” The judge said the American Dream guided the family, with the defining principle being Hard work will get you there. “And it did,” she says now. But she’s never done working. Just as she was encouraged along in her schooling and career, she endeavors to give others the same benefit. To that end, Judge Gagliardi is active with many community organizations, from the LCBA, to PACE Center for Girls, to the Boy Scouts. Res Gestae caught up with her on the heels of a mentoring session with the Lee County Association of Women Lawyers. “I especially like to help female lawyers see there are ways to get through having children while having a career,” she said. Most of all, “It’s OK for them to have ambition.” Women attorneys have certainly made strides, representing 36 percent of the Florida Bar, as opposed to the 10 percent of 30 years ago. But banding together to provide educational opportunities and networking is still helpful, given the power differentials and pay disparity that still exists. The judge recognizes that without support, the profession can prove intimidating, especially to young women. “Being in the law was something I always wanted to do,” she affirmed. “I remember being the only female in a courtroom full of men thinking, ‘How am I going to do this?’” She explained that the very act of offering support gives herself strength. As a county judge, she enjoys the variety of cases, indicating it is intellectually stimulating. One of the most gratifying occasions, however, is a graduation ceremony from Drug Court, over which she presides along with Judge Leigh Frizzell Hayes. There, even seemingly small accomplishments are cause for celebration. “We clap for people in Drug Court when they get their driver’s license,” she said. Alums will occasionally come back to tell her they had a relapse, but they were able to use the tools and coping skills they learned to get back on track. Judge Gagliardi is happily married, and is the mother of adult twins. |RG|

RES GESTAE | MAY 2013

From the Bar Marcus W. Viles, Esq. When Marcus Viles was coming of age, the nation was having its own growing pains. After graduating from MIT, his father moved the family to Huntsville, Alabama to pursue a career as an astronautical engineer at the Marshall Space Flight Center. But rocket propellant wasn’t the only thing on fire. “It was the mid sixties, George Wallace was governor, and while life inside our insular quarters was a world apart, it seemed as if the rest of the state was ablaze,” Viles remembered. The turmoil made an indelible impression on the young attorney-to-be. “After seeing Gregory Peck in To Kill a Mockingbird I hoped someday to be a lawyer.” Viles held tight to that hope and went to law school at Mercer University in Macon, Georgia. He graduated 152 years after his “great-great something grandfather” did, from that same institution’s first class in 1833. One might call it divine providence, with which Viles partially attributes one career-defining triumph – along with “the innocence and virtue of my client.” Miller v. Ford Motor Co. was one of the litany of products liability claims brought against the automotive giant related to tire defect. In this case, which was tried over three weeks before the Honorable John Steel, the plaintiff had sustained injuries when his tires failed and his SUV rolled over on I-75. “Ford was on a roll and had consecutively won its last eleven trials,” recalled Viles, “and they were licking their chops at crushing me too. They must have had thirty or more attorneys.” They would have no such luck. Instead, the client was awarded a $5.3-million judgment, an outcome Viles characterizes as humbling. Another such defining moment came with DeSantos v Childcraft, in which a baby was strangled to death by a defect in her crib. “The entire crib industry was designing cribs like this and a startling number of deaths occurred each year.” The large monetary settlement was cold comfort for the parents. However, a new industry standard had been set. Consequently, “hundreds of families have never had to suffer the needless loss of a baby for a decorative design defect.” When not at work at Viles & Beckman, LLC, he spends time with his family and, his dog and two cats. |RG|

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RES GESTAE | MAY 2013

The Dish

by Sara Fitzpatrick Comito

A couple of months ago, this magazine ran a feature exploring the storied past of the LCBA. It’s only right an organization so rooted in history would salute the other cherished and venerable institutions that have grown up beside it. For this issue, we turn to our friends at The Veranda Restaurant with appreciation and respect. Fort Myers wasn’t built on strip malls and fast food, but on charming local color, hospitality and honest cuisine that pays homage to the rich traditions of gracious southern fare. Everything old is new again, but only if it continues to surpass customers’ expectations. On that account, The Veranda continues to delight, and is a natural choice for gathering with colleagues or entertaining clients. “The Veranda Restaurant has been the Lee County Bar Association members’ ‘see and be seen’ spot for many years, and is one of downtown Fort Myers’ most elegant addresses for superb meals and service,” said LCBA Executive Director Nanci DuBois. “Veranda has supported us with private dining room gatherings for important meetings that vie with ‘Downton Abbey’ for attentive yet unobtrusive table service and outstanding menu selections, an ambience that has led to many a successful meeting!” Today, as many of the aforementioned strip malls now stand bare, The Veranda’s stately premises blend unassumingly into its Broadway and Second Street environs, taking its place as a standard-bearer for a unique old-timey Fort Myers aesthetic. That’s a feat unto itself, given the relatively short life of our fair city. The building was erected in 1902 by the son of a sloop captain who ran supplies during the Seminole Indian wars, and then purchased by restaurateur Paul Peden in 1978, who has run it as The Veranda continually ever since. In honor of its 35th anniversary, there are no splashy promotions in the works; rather the restaurant chooses to celebrate its proud history by delivering the same fresh, comforting, delicious fare with its consistently thoughtful

RES GESTAE | MAY 2013

The Dish dedication to service in an elegant atmosphere that transports one away from the hustle and bustle of the workaday week. On a recent rainy day visit, my companion and I were seated in a cozy alcove near large multi-paned windows overlooking the courtyard, resplendent in a garden setting featuring a waterfall-fed koi pond and red brick pavers. Black and whiteclad servers moved purposefully around the room, refilling ice tea and baskets containing warm, honeyed wheat bread before anyone could ask for them. It’s not only the bow ties and keenly choreographed anticipation of a guest’s every need, but the fact that some of the servers have been in The Veranda’s employ for decades that recalls an era when the profession was considered a noble calling, and not simply a stopover to one’s ultimate career. What can be more classic than rack of lamb with red wine reduction and mint jelly, stuffed veal chops, or chateaubriand? Of course, a nice assortment of seafood is offered, like seared jumbo scallops and Gulf shrimp. The Veranda prides itself on its regional southern flair, which is no short supply in the case of the local grouper, served on top of a green tomato with shrimp and black eyed pea succotash, and finished with Tabasco butter. The fried green tomato salad features generous slices of tangy, meaty green tomatoes nicely complemented by the texture of a crunchy beer batter. The fresh greens were nicely appointed with a refreshing bleu cheese dressing, chunks of barely charred ham, and fresh herby croutons. The baked onion soup is a real mood lifter, boasting a rich, beefy broth and fresh bread and cheese broiled until roasty, melty and completely decadent. Speaking of decadent, do try to leave room for a freshly made dessert like triple-layer chocolate pâté with raspberry coulis or peanut butter fudge pie. I say “try” because, like the service, the servings are also quite generous. Be neighborly. Stop by The Veranda for a cocktail and dinner, maybe a great bottle of wine and dessert. These organizations that help define our city and standard of living owe it to each other to say thanks for being there. Please join me in wishing the Veranda a very happy 35th anniversary, and many more to come. |RG|

The Veranda (239) 332-2065 verandarestaurant.com Monday through Friday Lunch 11 a.m. – 2 p.m. Reservations accepted for parties of 6 or more Midday menu 2 – 4 p.m. Abbreviated selection from the lunch menu Monday through Saturday Dinner 5:30 – 10 p.m. Reservations recommended at any time of the year Closed Sundays, except Easter and Mother’s Day Garden courtyard and indoor dining Private party facilities available for up to 40 guests Off-site catering also available Attire is dressy casual, no jeans, sneakers, t-shirts or shorts.

Sara Fitzpatrick Comito is a freelance writer and associate editor of Res Gestae magazine, and a freelance writer for the Naples Daily News. For suggestions or comments on this regular feature, please contact Sara at Sara@ConricHoldings.com.

RES GESTAE | MAY 2013

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RES GESTAE | MAY 2013

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Social Scene

A B LC Membership Meeting

Hon. Jay B. Rosman, Karen Brouse and Claire Avery

Lee County Clerk of Courts Linda Doggett and Mary C. Evans

Mary Evans, Hon. Josephine Gagliardi and Hon. Jay B. Rosman

Hon. Tara Paluck, Mary Evans and Gus Simmons

Kelly Fayer speaking about the Voices for Kids charity golf tournament

Hon. Jay B. Rosman speaking to the LCBA RES GESTAE | MAY 2013

Social Scene

John Agnew during his presentation Jo Ellen Kane, Debra Parks, and Karla Y. Campos-Andersen

Gordon Walters, Karen Miller, Kelly Joblanski and Shannon Puopolo

Ave Maria Law students and LCAWL members

Jennifer L. Basey and Kelly Fayer

RES GESTAEâ€‚ | â€‚MAY 2013

Lee County Association of Women Lawyers with Judge Gagliardi

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Legal Briefs Christopher Davies presents at community association law seminar Naples attorney Christopher N. Davies of Cohen & Grigsby offered his perspective on how emotional support animals can present new challenges for condominium associations during a live and webcast presentation last month. Presented by The Florida Bar Continuing Legal Education Committee and the Real Property, Probate & Trust Law Section, “Community Association Law—The New Normal” was held from 8 a.m. to 4:45 p.m. at the Hyatt Regency Orlando Airport in Orlando, FL on April 5. Davies joined two other attorneys, one from Stuart and the other from West Palm Beach, to present “Fair Housing Laws and Emotional Support Animals — Lions, Tigers, and Bears, Oh My!” from 11:20 a.m. to 12:15 p.m. During the discussion, Davies share insights about the Fair Housing Amendments Act and how landlords are required to make reasonable accommodations for tenants with disabilities who also have emotional support animals.

Roetzel promotes Jaime A. Maurer to partner Roetzel & Andress announced the promotion of Jaime A. Maurer to partner. She formerly held the position of senior counsel in the Fort Myers office, and focuses her practice on representing employers in disputes and counseling with respect to any and all employment law issues. Maurer has litigation experience in employment, business and commercial law at the federal, state and local levels. She routinely handles cases involving discrimination law, alleged breaches of employment contracts, wage and hour compliance, potential violations of the Family and Medical Leave Act, Americans with Disabilities Act, Age Discrimination in Employment Act and other federal and state employment laws. She is also a member of the firm’s Health Care Reform Team, which advises employers on compliance with the new federal health care legislation. Maurer earned her B.A. at Vassar College and her J.D. at Brooklyn Law School. She is licensed to practice law in Florida and New York.

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RES GESTAE | MAY 2013

Legal Briefs Steven Adamczyk named partner at Goede, Adamczyk & DeBoest The law firm of Goede, Adamczyk & DeBoest, PLLC announced attorney Steven J. Adamczyk has been named partner in the practice. He has practiced law at Goede, Adamczyk & DeBoest, PLLC, as well as its legacy firm, Goede & Adamczyk, PLLC since its inception. He oversees the firm’s estate planning and probate practice. Adamczyk also focuses in the areas of real estate, corporate, and community association law. “I enjoy working with the law firm of Goede, Adamczyk & DeBoest, PLLC,” stated Admaczyk. “The combined experience of the partners and associates at the firm enable us to provide quality legal service and valuable advice to better assist our clients.” A Naples resident since 1990, Adamczyk started his practice in 2008. He has since expanded his areas of expertise to include asset protection, trust administration, and general counsel for corporations and limited liability companies, assisting them with numerous matters including acquisitions, leases, and commercial litigation. “Adding Steve as a Partner further strengthens our ability to meet the needs of our growing list of clientele in the Naples, Fort Myers, and Miami offices,” said Richard DeBoest, managing partner. “Steve’s extensive knowledge and experience is an asset to our growing law firm.”

RES GESTAE | MAY 2013

Legal Briefs Conant Mediation Services relocating to Arizona Jonathan D. Conant, a long time member of the Lee County Bar, sadly announces the closing of the physical location of the Conant Mediation Center. Moreover, he is announcing his upcoming departure from Lee County. Recently, Conant was overseeing the implementation and operation of the State of Oregon’s Foreclosure Avoidance Mediation Program. As their legislature is currently meeting and will be revising the program, this was determined the most opportune time to take what he successfully created and shift the day to day functioning of the program to the people of Oregon to run. Much as he felt during the operation of the Florida based mortgage foreclosure program, it is best to allow mediators from the area handle the claims of those residents living in that area, and so to should the management of the program be run by the local residents. Previously, Conant announced the opening of the Mountain States location of the Conant Mediation Center in Prescott, Arizona. Effective June 1, 2013, he will become a full time resident of the state of Arizona. A member of the Arizona, Maricopa and Yavapai County Bar Associations, Jonathan will continue to provide mediation and arbitration services in addition to representation of clients in various legal matters including but not limited to Social Security disability applications, injury claims and contractual disputes. Should you have Arizona clients in need of assistance, please contact Jonathan at 711 Whipple Street, Suite C, Prescott, Arizona 86301. He will be maintaining his current e-mail addresses and in addition can be reached via telephone at (855) 626-6268 (855-6CONANT), or via facsimile at (855) 826-6268 (855-8CONANT)

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RES GESTAE | MAY 2013

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Legal Briefs Christina O’Brien joins Henderson Franklin The law firm of Henderson, Franklin, Starnes & Holt, P.A., is pleased to announce that Attorney Christina O’Brien joined the firm and will serve in the divorce, marital and family law practice area. O’Brien concentrates her family law practice in matters of dissolution of marriage (divorce), custody, paternity, child support, domestic violence injunctions, postjudgment modifications and dependency issues. Throughout her career, she has handled and tried both jury and non-jury trials in the Twentieth and the Twelfth Judicial Circuit (Sarasota, Manatee and DeSoto Counties) Florida. O’Brien is admitted to practice in all Florida State Courts. Prior to joining Henderson Franklin, she had her own practice in Fort Myers where she handled family law and civil cases. O’Brien is a member of the Family Law Section of the Florida Bar and the Lee County Bar Association. She is active in the Southwest Florida community, serving on the Southwest Florida Television Advisory Board. She also volunteers for the Running Club at St. Francis Xavier School. O’Brien received her undergraduate degree (cum laude) from the University of Tampa (1996) and her law degree from Florida State University (2000). She can be reached at 239.344.1279 or via email at christina.obrien@henlaw.com.

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.

We issue a Certificate of Destruction. RES GESTAE | MAY 2013

Legal Briefs Goldstein Buckley, Cechman, Rice & Purtz donates backpacks for Eden Park

Goldstein, Buckley, Cechman, Rice & Purtz, P.A., recently donated backpacks and school supplies to a fourth grade class at Eden Park Elementary in Immokalee. The mission at Eden Park Elementary is to use the curriculum, instructional skills, and resources to provide a safe and encouraging environment that promotes individual excellence in academic, physical, and social skills. “The children were so happy when I handed them the backpacks and fuzzy highlighters,” said Katie Flerlage, the fourth grade teacher who received the class donations. “We’re grateful to have organizations like Goldstein, Buckley, Cechman, Rice & Purtz supporting education in the community.” For more information about Eden Park Elementary, visit http://www.collier.k12.fl.us/epe/.

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RES GESTAE | MAY 2013

Legal Briefs Grossman appointed to Crohn’s & Colitis Board Keith Grossman, founder and managing partner of Grossman Law & Conflict Management, has been appointed as a member of the Board of Trustees of the Florida Chapter of the Crohn’s & Colitis Foundation of America. As a person with Crohn’s disease, Grossman takes this important cause to heart. Thankful that his symptoms are manageable, Grossman wants to use his newly appointed position to help the 700,000 Americans currently suffering from these diseases. His designated two-year term runs through December 2014. Grossman will be following the mission of the Crohn’s & Colitis Foundation of America; help cure Crohn’s disease and ulcerative colitis, and improve the quality of life of children and adults affected by these diseases. Grossman explained, “As part of my responsibilities as a Board member, I will be initiating the Southwest Florida Leadership Board as a committee of the state chapter. Southwest Florida has not previously had a Leadership Board. This is important because it provides a direct formal connection to the state and national chapters. By having this connection, it is my hope and intent to help establish more educational opportunities locally for both patients and physicians and to help the state chapter build more awareness and branding in this part of Florida.” To learn more about the Crohn’s & Colitis Foundation of America visit http://www.ccfa.org/

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RES GESTAE | MAY 2013

Legal Briefs Laird A. Lile elected to ACTEC Board of Regents Laird A. Lile, a wills, trusts and estates attorney in Naples at Laird A. Lile, P.A., has been elected by his fellow members to the Board of Regents of The American College of Trust and Estate Counsel. An ACTEC Fellow, he was elected for an initial three-year term during the organization’s annual meeting held in Hawaii. A member of the Board of Governors for The Florida Bar, Lile also serves on the Supreme Court’s Florida Courts Technology Commission, which is overseeing the technological overhaul of the state’s courts. Lile is certified by The Florida Bar as a Wills, Trusts and Estates lawyer and is past chair of The Florida Bar’s Real Property, Probate and Trust Law Section. He has been included in Woodward/White’s The Best Lawyers in America since 1995, is recognized as one of Florida’s 100 Top Super Lawyers, and was named to Florida Trend’s Legal Elite Hall of Fame.

Florida Rural Legal Services receives foreclosure assistance grant Florida Rural Legal Services (FRLS) is pleased to announce that it has received a grant to provide increased services to families facing foreclosure. In the coming months, FRLS staff attorneys will be able to help many more families who are worried about or threatened with the loss of their primary residence. FRLS can provide counsel and advice, pro se assistance, help with rescue and modification programs, and court representation for persons at all stages of the foreclosure process. The assistance is FREE of charge. If you want more information about these efforts or if you want to refer someone for help, the number is 239-334-4554 or 800-476-8937.

Mateo Arias joins Cheffy Passidomo, P.A. Cheffy Passidomo, P.A. is pleased to announce that Mateo Arias has joined the firm in the Real Estate Department. Arias holds Bachelor’s and Master’s degrees in business administration and international business from the University of Florida and completed law school at Boston College, where he was active with the Latin American Law Student Association. He also served as vice president of the Law Student Division of the Hispanic National Bar Association. Arias practices real estate and corporate law, and is fluent in Spanish and French.

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RES GESTAE | MAY 2013

Seeking a staff attorney for the Family Law Office. Must be member of Florida Bar in good standing. Salary + benefits. Lee County Legal Aid Society of Fort Myers, Florida Fax resume to 239-334-4305 or e-mail to KEPugh2@Earthlink.net

Legal Briefs Fort Myers HS wins Circuit Mock Trial, places in State

They came. They saw. They conquered. The Mighty Green Wave from Fort Myers High School ruled the day at the recently staged Twentieth Circuit Mock Trial Competition. The winners were Jacqueline Cloutier, Samuel Denholt, Sarah Hoffman, Sara Jackson, Masyn McMillan, Jen Nargi, and Ross Pinkard. As part of a National annual competition for high school students, these eager lawyers-to-be get to practice both sides of a case. That’s the tough part: Each student prepares to act as witness, defense attorney and prosecutor. A toss of the coin just before court opens determines which side of the case the team is to be on, so all must prepare both arguments. The competition followed a county-wide competition, which included teams from public and private high schools in Lee County. The Twentieth Circuit Mock Trial Competition included the winning teams from Collier (Seacrest Country Day School,) Charlotte (Charlotte High School) and Lee (Fort Myers High School.) Hendry and Glades Counties did not enter teams in the competition this year. At Lee County Justice Center on Friday, February 15 a crowded courtroom of students, parents and officials from Lee County School District and Lee County Bar Association came to order before the last two teams standing: Charlotte High School and Fort Myers High. Overall Circuit winners of cash awards and plaques were: from Charlotte High School, Nathan Buckley, the Associates & Bruce L. Scheiner Scholarship for Best Prosecuting Attorney; Patrick Glastonbury, the Collier County Bar Association Scholarship for Best Prosecution Witness; and Jake Christie, the Miguel C. Fernandez, III, P.A. Scholarship for Best Closing Argument; from Seacrest Country Day School, Ben Kaye, the Henderson Franklin Starnes & Holt, P.A. Scholarship for Best Defense Attorney. The winning “Green Team” from Fort Myers High, along with their teacher sponsor, Ms. Anya Pence, and the team’s attorney coaches, Scott Beatty of Henderson Franklin Starnes & Holt, P.A., and Douglas Waldorf of Rogers Towers, P.A., traveled to Orlando for the State Mock Trial Competition in early March. Taking Third Place in the State competition was quite an honor for the students. According to their teacher, “Our students placed third at the State Mock Trial competition. The team did a great job; the only round we lost was to American Heritage and they are going on to Nationals. We also won a Professionalism Award, and Masyn McMillan won Best Attorney Award. With regard to our Attorney Coaches, I can’t say enough good things about how much they worked with our students and educated them about law. They are both so great with students, and they really appreciate them.” Coaching for the teams started in October of 2012, and represents many dedicated hours on the part of the students, teachers and coaches. Committee Chair Renee Binns from the Lee County Bar Association said, “This is the fourth time in six years that Fort Myers High has sent a team to State. We think this is commendable!” Contributions to support the school of choice with Mock Trial expenses for the coming year may be sent directly to the school, or to Lee County Bar Association, clearly marked for Mock Trial 2014, and if a particular school is being sponsored by the contribution, please indicate. RES GESTAE | MAY 2013

Legal Briefs Lee County Bar Association welcomes new members • • • • • • • • • • • • •

Jacqueline Bruehl Waggoner & Bruehl, P.A. Alan F. Hamisch The Hamisch Law Firm, PLLC Emily Sigler Emily Sigler Attorney at Law Ronald L.Buschbom Ronald L. Buschbom Mediations, P.A. Rebecca A. Cortes Rebecca A. Cortes, Attorney at Law Christopher Cudebec Kuhn Law Firm Elizabeth Grimmer Kuhn Law Firm Charles M. Harris Harris and Stutchin James S. Legg Office of Regional Counsel Christina M. O'Brien Henderson, Franklin, Starnes & Holt, P.A. Debra M. Parks Law Office of Debra M. Parks Tishana T. Wokocha W. Wade Wallace First American Title Insurance Company

LCBA hosts Voices for Kids Golf Tournament May 18 is the date for our always successful and always FUN annual charity golf tournament to benefit Voices for Kids, taking place this year at Raptor Bay Golf Club. Registration begins at 7 a.m., and the game begins at 8:30. Entry Fee includes golf, cart and lunch. You do not have to golf to participate. You can cheer on your favorite team and come to the Nineteenth Hole Lunch and Silent Auction for $30 per person. Register and pay online: visit http://leebar.org/events/2013-05 or e-mail admin@leebar.org. Special thanks to Roetzel, our title sponsor. Sponsorship opportunities still available!

RES GESTAE | MAY 2013

Legal Briefs Dana Saracione earns professional certification Pavese Law Firm announced that paralegal Dana M. Saracione has successfully completed the certified paralegal examination

and became a member of the National Association of Legal Assistants, Inc. (NALA). NALA is a non-profit organization, representing more than 18,000 paralegals who are individual members or members of NALA-affiliated associations. Prior to joining Pavese Law Firm, Saracione was a litigation paralegal with the Lee County Attorney’s Office where she worked on personal injury cases, eminent domain and workers’ compensation cases on behalf of Lee County. Previously, she was a legal secretary at another local law firm. Saracione holds a bachelor’s degree in psychology, and has earned her paralegal diploma. She is a member of the Gulf Coast Paralegal Association.

SWFL chapter of ALA installs board of directors The Southwest Florida Chapter of the Association of Legal Administrators has installed its 2013-2014 board of directors: Phyllis Calloway, office administrator at Becker & Poliakoff, is president; Fanny Kuhn, office administrator at Kuhn Law Firm is vice president – Lee County; Julie Koenig-Hill, office administrator at Hahn Loeser & Parks is vice president – Collier County, Susan Galbraith, office administrator at Goede, Adamczyk & DeBoest is secretary; Wenke Brandes, office administrator at Garlick, Hilfiker & Swift is treasurer; and Judy Wright, office administrator at Grant Fridkin Pearson is past president. ALA is a national organization that provides support to professionals involved in the management of law firms, corporate legal departments and government legal agencies. Since its inception in 1971, ALA has provided support to nearly 10,000 professionals involved in the management of law firms, corporate legal departments, and government legal agencies worldwide through educational opportunities, leadership development and a highly valued sense of community.

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RES GESTAE | MAY 2013

Calendar of Events

maY 2013 1 2

Law Day Blood Drive

8 a.m.- 3 p.m. at the corner of MLK blvd and Monroe

2DCA Judges with Students Q & A and Oral Argument Court Student Program starts at 8:00 sharp

Membership Meeting “Law Week Awards Program”

11:30 a.m. at Harborside Events Center (Special rate for this event: $25 members/ $30 non-members)

10 16

Membership Committee Meeting

12 p.m. Henderson Franklin in conference room 1

Family Law Practice Lunch LCBA 3rd Thursday Social 5-7 p.m.

LCAWL Judicial Appreciation Cocktail Reception 5-7 p.m. at Art of the Olympians

JUNE 2013

Judicial Assistants Appreciation Luncheon

Uncommon Friends Foundation “An Uncommon Evening”

LCBA Scholarship Award for Law-Related College Education to Elizabeth Santiago, Ida S. Baker High School Student

7 14

Young Lawyers Division Lunch Meeting French Connection at Noon

Membership Committee Meeting

Henderson Franklin in conference room 1 at Noon

RPPTL Practice Section Lunch Noon

Family Law Practice Lunch & CLE LCBA 3rd Thursday Social 5-7 p.m

Membership Meeting

11:45 a.m., Royal Palm Yacht Club (Special rate for this event: $25 members/ $30 non-members)

Joint Event with Lee County Alliance of Legal Professionals at Royal Palm Yacht Club 11:30 a.m. See pg 17 for contact inforamtion

18 22 27 30

Voices for Kids Charity Golf Tournament

Roetzel & Andress Title Sponsors at Raptor Bay Golf Club

Executive Council Meeting 5:15 p.m. at Mary Evans’ Office

Memorial Day- Offices Closed

Visit us online at leebar.org to see the entire LCBA Annual Calendar and conveniently RSVP for upcoming events.

Land Use & Governmental Law Practice Section Lunch Meeting Lee County Public Works in first floor conference room

the lee county land use bar 2013 schedule Meetings will take place from 12:00 pm - 1:30 pm Except for dates highlighted in BLUE, meetings will be held at Lee County Public Works 1500 Monroe Street, Ft. Myers, FL 33901 1st Floor Large Conference Room Thursday, May 30 NO MEETING - JUNE Thursday, July 25

Thursday, August 29 at Henderson Franklin (CR #1) Thursday, September 26 Thursday, October 31

Would You Like to Submit an Event?

Email your event submission to resgestae@leebar.org

RES GESTAE | MAY 2013

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

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Congrats to our NEWEST 100 Club members: Fort Myers City Attorney’s Office

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Aloia Roland & Lubell, LLP Andrew S. Epstein, P.A. Arend & Sisk, P.A. Bonita Springs City Attorney’s Office Costello Royston & Wicker, P.A. Boyle Gentile Leonard & Crockett P.A. Bruno & Prado, PLLC Burandt, Adamski & Feichthaler, P.L. Calvo & Calvo Coleman & Coleman Engvalson & Associates, P.A. Fowler White Boggs, P.A. Freidin • Dobrinsky Fried & Fried, P.A. Geraghty, Dougherty, Edwards, P.A. Goldberg, Racila, D’Alessandro & Noone, LLC Goldstein, Buckley, Cechman, Rice & Purtz, P.A. Green, Schoenfeld & Kyle, LLP Grossman Law & Conflict Management Hahn Loeser & Parks LLP Henderson, Franklin, Starnes & Holt, P.A. Hersch, Kinsey & Hill, P.A. Joseph R. Gaeta, P.A. The Law Offices of Kevin F. Jursinski, P.A. Knott Ebelini Hart

Kushner & Kushner Lee County Legal Aid Society, Inc. Luis E. Insignares, Attorneys at Law The Livingston Law Firm McQuagge Law Firm The Law Firm of Scott T. Moorey Neaher & Teuber, PL Norma Hand Brill, P.A. North Law Firm, P.A. The O’Brien Law Firm O’Halloran & O’Halloran, Attorneys at Law 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, Spivey Law Firm, Personal Injury Attorneys PA Steinberg & Linn, P.A. Strayhorn and Persons, P.L. Thompson Family Law, P.A. Toll Law 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.

RES GESTAE | MAY 2013 4/10/13 10:23 AM

Referral Fees Paid Many businesses that did not know they could make a claim are now included in the proposed BP Oil Spill Settlement. Your clients may qualify for compensation, even if their business is located in town and not on the beach. Businesses may include: Gasoline Stations Sporting Goods Stores Department Stores Gift and Souvenir Stores Taxi Services Restaurants

Airport Operations Tour Operators Travel Services Museums Salons & Spas Historical Sites

Retail Stores Zoos and Gardens Hotels and Motels Bed and Breakfast Inns Snack Bars Local Attractions

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ft. myers, fl permit no. 147

P.O. box 1387 | fort MYers, fl 33902-1387 (239) 334-0047 | Fax (239) 334-0523 www.leebar.org

Choosing a community bank with conservative management is critical in times like these. As the oldest community bank in Lee County, we are unwavering in our commitment and service to our customers and our community. See us for a business loan or fixed rate residential loan to purchase or refinance. We have competitive interest rates and now is the time to borrow while rates are historically low!

We make banking about YOU!

From left: Robbie Roepstorff, President; John Ammons, Vice President, Cleveland Avenue Office Manager/ Leah Kirby, Vice President, River District Office Manager; Liz Aurensan, Vice President, Lending; Kim Nyberg, Vice President, Professional & Executive Banking/Pam Edwards, Vice President, Lending; Willy Ocasio, Captiva Office Manager/ Rob Lisenbee, Vice President, Sanibel Office Manager; Geoff Roepstorff, CEO

13000 S. Cleveland Ave. Fort Myers, FL 33907 239.466.1800

2105 First St. Fort Myers, FL 33901 239.334.4668

1699 Periwinkle Way Sanibel Island, FL 33957 239.472.7211

www.edisonnationalbank.com

14812 Captiva Drive Captiva Island, FL 33924 239.395.0248

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