THE OFFICIAL PUBLICATION OF THE LEE COUNTY BAR ASSOCIATION JULY 2014
ANGLING FOR HOPE Attorneys fish for Crohn’s & Colitis
2014
Award of Distinction Recipient
New Trust Account Rules
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Contents cover features
16
departments
New Trust Account Rules by Henry Lee Paul
22
Angling for Hope Attorneys Fish for Crohn’s &
Colitis
6
Letter from the President
8
Letter from the Editor
by John D. Agnew, Esq.
by Nanci DuBois
10 Calendar of Events 12 Family Law Matters
by Sara Fitzpatrick Comito
22
The Sharia Law Statute
17
100 Club
by Luis E. Insignares, Esq.
18 Appellate Insight
Is it Reviewable? Part 3
by Stacy L. Sherman, Esq. and Margaret H. White-Small, Esq.
26 Community Connection SalusCare
26
by Sara Fitzpatrick Comito
27 Real Estate where to buy, sell or lease 30 The Dish
Doc Ford’s Rum Bar & Grille
31 The Dish List
where to meet and eat
32 Legal Lens
30
social scene photos
34 On the Bench
Hon. Michael T. McHugh
35 From the Bar
James Franklin, Jr., Esq.
37 Legal Briefs
32
news and happenings
Check out
The Real Estate Section, Page 27! BUY, SELL, LEASE & Find Other Valuable Real Estate Related Services ←Selfie taken after a LCBA website meeting with John Agnew, Connie Ramos-Williams, Michelle Hudson, Carlos Cavero, Lisa Poulin & Nanci DuBois
4
RES GESTAE | July 2014
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 ADVERTISING DIRECTOR Linda Fiore 239.690.9840 CONTRIBUTING WRITERS Sara Fitzpatrick Comito John D. Agnew, Esq. Nanci DuBois Luis E. Insignares, Esq. Henry Lee Paul, Esq. Stacy L Sherman, Esq. Margaret H. White-Small, 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: Carlos Cavenago landed a big permit during the Keymorada Invitational FlySpin Tournament to benefit The Crohn’s & Colitis Foundation of America and the UM Crohn’s & Colitis Center. Cover Photo: Randy Spivey Copyright© 2014. 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.
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Note from the President I came upon this photo the other day, and it made me smile. Pictured are six of the LCBA’s distinguished past presidents and some all-time lions of our Bar. From left to right (with their year of presidency): Douglas (Doug) Waldorf, Sr. – 1964, Walter O. Sheppard – 1963, Lloyd Hendry – 1958, Hon. Elmer O. Friday, Jr. – 1966, James (Jim) A. Franklin, Jr. – 1961, and Hon. Robert (Bob) T. Shafer, Jr. – 1968. There are certainly others from this generation (and before) who fit the same mold. Although not all of these men are still with us in body, their spirits and good works live on with many. Mention one of these names to a local lawyer or judge in his or her 60’s or later—the generation after these men—and I am certain that person can (and would be glad to) tell you story after endearing story, with plenty of lessons learned. Our Bar is much larger these days, but there are still many “greats” among us, who are also leaving permanent and positive marks on the Bar and in the community. We would be wise to draw on their skills and experience. There is both science and art in the practice of law. We have many resources at our disposal to teach us the science—statutes, case law, treatises, journals, etc. While there are plenty of books attempting to convey the art of law, undoubtedly, the best teacher is interacting with other attorneys. Mentoring should be an integral part of improving and building our practice, whether as mentor or mentee. I have been fortunate in my legal career in this respect. My first two years in practice, I worked side-by-side with an attorney who was a consummate professional in every sense of the word, and I credit him with many of the good qualities I developed in my practice. A three-year term in the Calusa Chapter of American Inns of Court was also a wonderful experience for me, with frequent debate and lessons in professionalism and ethics. I have since had the pleasure of serving several years as a mentor in our firm’s summer associate program. All were invaluable and rewarding experiences. If you are not already part of a formal mentoring program, I encourage you to contact the LCBA office. We always have a list of mentors looking to help and mentees eager to grow. If you choose to participate on either end, I am confident you and our Bar will be better for it.
John D. Agnew, Esq. john.agnew@henlaw.com | (239) 344-1364 6
RES GESTAE | July 2014
LEE COUNTY BAR ASSOCIATION ADMINISTRATIVE TEAM EXECUTIVE DIRECTOR Nanci G. DuBois EXECUTIVE ASSISTANT Lisa Poulin LAWYER REFERRAL & PRO BONO COORDINATOR Kathy Robinson
EXECUTIVE COUNCIL PRESIDENT John D. Agnew, Esq. VICE-PRESIDENT Anne Dalton, Esq. SECRETARY Scott Atwood, Esq. TREASURER Kelly Fayer, Esq. MEMBER-AT-LARGE Daniel Endrizal, Esq.
YOUNG LAWYERS DIVISION PRESIDENT Shannon Puopolo, Esq.
COMMITTEES HISTORY E. Bruce Strayhorn, Esq. & Jenna Persons, Esq. LAW RELATED EDUCATION T. Rankin Terry, Esq. LAW WEEK Hon. John S. Carlin MOCK TRIAL Mary C. Evans, Esq. PAST PRESIDENT Mary C. Evans, Esq. PRO BONO Audrey M. Singleton, Esq. & Katie Berkey, Esq. MEMBERSHIP Carlos Kelly, Esq. SOCIAL EVENTS Amanda Mitteer-Bartley, 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 Mary Ellen Briedé, 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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7
Letter from the Editor How many times have you been contacted by me about an event coming up, or a CLE program or meeting, and thought: Maybe I’ll go this time… and then promptly forgot about it ‘til it was too late? Resolutions may be for the distinctly irresolute, but when it comes to determining the true value of your membership, perhaps a resolution with actionable follow-through is in order. We keep a calendar of events on our website to make it easy to RSVP with just a click or two. So allow me to cajole your participation just a little less, and take action on your own for a much more interesting membership. Remember, this is YOUR Bar Association, and you get out of it that which you give. Ok, you say… enough proselytizing already! And I snappily issue this rejoinder: Then take away my protestations! We have some phenomenally active and bright stars among our membership, many of whom served the Lee County Bar Association tirelessly during the June Charity Golf Tournament. Among those, let me thank: Ken Jones as Co-chair with Kelly Fayer, LCBA Treasurer, for their tireless and cheerful efforts on our behalf; our ever-ready Young Lawyers Division with Kim Bocelli and Shannon Puopolo leading the way; our Social Committee Co-chairs, Theresa Daniels and Amanda Bartley, for their persuasiveness in the community as they all gathered Silent Auction, Raffle and Hole Sponsor commitments; Roetzel & Andress for its fourth year in a row as Title Sponsors for the Golf Tournament; and our friends at Von Ahn Associates for being our NEWEST type of sponsor for the tourney, Signage Sponsors. Thanks to my sister, Susan Galbraith, for her work in keeping the event rolling with a willing and efficient organization of volunteers for the tournament. For Kendra Sutton’s work with PACE and with us, we are impressed and grateful, as her liaison effectiveness and good cheer were invaluable to the success of the event. And for Sheriff Mike Scott’s contributions to once again provide just the encouragement we needed to bid a little higher for the Extreme Undercover Adventure, we say “Thanks!” For those who missed this big outdoor event, there’s more fun in the sun coming up this Fall, or as we call it around here, BAR-B-Q season. In the heat of summer we start looking forward to the crisp air of November and Judge Lundy’s signature ribs. This year we will celebrate the careers on the Bench of retiring Judges Mark Steinbeck, Sherra Winesett and Edward Volz. Plan to join us at this family event, which really is one of the highlights of the year. Get involved now, won’t you? The rewards are satisfying and you’ll find out how much we really do need YOU. If not now, when? It’s all it can possibly be, when we are all participating in it together! GUNG-HO!? Nanci G. DuBois info@leebar.org | (239) 334-0047 ext. 102 8
RES GESTAE | July 2014
AD DIRECTORY Allied Business Solutions 15 Ave Maria Sch ool of Law IBC Barbara Pizzolato 37 Boyle, Gentile, & Leonard, PA 35 Buchanan Ingersoll Rooney PC | Fowler White Boggs 33 Business Observer 35 Calvo & Calvo Attorneys at Law 9 CONRIC PR & Marketing | Publishing 20 CopyLady IFC Corbin Henderson Company 28 Dial-a-Nurse 19 Donna Tisch 15 Edison National Bank BC First American Title 27 Fort Myers Court Reporting 9 Freidin, Dobrinsky, Brown & Rosenblum, PA 7 Garvin Law Firm 25 Goldberg, Racila, D’Alessandro & Noone, LLC 11 Gregory N. Woods 34 Heather FItzenhagen 14 Henderson, Franklin, Starnes & Holt, P.A. 9 Hendry Street Partnership 28 Henry Lee Paul, P.A. 21 Ivy Group Consultants, Inc. 28 Jason L. Gunter, P.A. 19 Joel H. Brown 15 Kevin F. Jursinski, B.C.S. 19 Kevin F. Jursinski, B.C.S. 27 Kevin F. Jursinski, B.C.S. 29 Katharyn E. Owen, Esq. 21 Kempton P. Logan 13 Kuhn Law Firm 17 Kushner & Kushner Attorneys 21 Law Firm of James Monroe 11 Law Firm of Scott T. Moorey 16 Legal Aid 37 Leonard P. Reina 21 Leslea Ellis, LLC 10 Levins & Associates, LLC 25 McHale Properties 28 Merit Court Reporting, Inc.© 36 Musca Law Office, Inc. 3 Mutual of Omaha Bank 38 Patterson, Eskin and Ball 29 PAYCHEX 13 Royal Palm Trattoria 31 Safety One-Stop 36 Spivey Law Firm, P.A. 5 Stephan, Cole & Associates 29 T3 Communications 11 The Livingston Firm 25 Veranda Restaurant 31 Von Ahn & Associates 33 Wilbur Smith Law Firm 13 Correction The June issue of Res Gestae ran an advertisement for Ave Maria School of Law that included outdated information. We regret the error.
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July 2014 | RES GESTAE
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Calendar of Events
10
July 11 July 11-12
July 29 July 31
August August 8 August 8 August 15
August 27 August 28
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RES GESTAE | July 2014
No LCBA Membership Meeting No Family Law Practice Section Meeting Real Property, Probate & Trust Law Practice Section Meeting Noon - 1 pm Judge Winesett’s Hearing Room 4H
The Florida Bar’s Annual Voluntary Bar Leaders Conference Hyatt Regency Coconut Point Register online at www.flabar.org
ADR Practice Section Brown Bag Lunch Meeting Noon - 1 pm, Hon. Alane Laboda’s Hearing Rm. 4-O, Lee County Justice Center
Land Use & Governmental Law Practice Section Meeting Noon - 1:30 pm, Lee County Public Works, 1500 Monroe St., Fort Myers
No Family Law Practice Section Meeting
Real Property, Probate & Trust Law Practice Section Meeting Noon - 1 pm, Judge Winesett’s Hearing Room 4H
Young Lawyers Division Meeting
Noon – 1 pm at The Connection Bar & Grill, 2288 First Street, Fort Myers
LCBA Membership Meeting
11:45 am – 1 pm at Sidney & Berne Davis Art Center, Fort Myers. Theme: Legislative Update, featuring Rep. Heather Fitzenhagen as keynote speaker.
Executive Council Meeting
5:15 pm at Henderson Franklin Starnes & Holt, P.A., 1715 Monroe Street, Conference Room 1
Land Use & Governmental Law Practice Section Meeting Noon – 1:30 pm, at Henderson Franklin Starnes & Holt, PA, Fort Myers
Young Lawyers Division Meeting
Noon – 1 pm at The Connection Bar & Grill, 2288 First Street, Fort Myers
Constitution Week Speakers in Schools
Contact Scott Atwood at scott@atwoodlawfirm.com to learn more or get involved. Additional speakers are needed every year to meet demand for this important program!
Executive Council Meeting
5:15 pm at Henderson Franklin Starnes & Holt, P.A., 1715 Monroe Street, Conference Room 1
LCBA Membership Luncheon 11:45 am – 1 pm, more info TBA
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
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July 2014 | RES GESTAE
11
Family Law Matters
The Sharia Law Statute: “Solution in Search of a Problem”
by Luis E. Insignares
In May 2014 the Florida legislature passed a particularly shameful milestone with its adoption of the so-called “Sharia Law Statute.” The law was passed despite there not being any apparent problem with Sharia law actually having ever been applied in Florida domestic relations cases, as evidenced by a lack of any reported appellate opinions so indicating. Although the law does not mention Sharia by name, one of its architects was reported to have passed out literature, in the Capitol, describing Sharia law as a “threat” to the Constitution, and who reportedly relied on the writings of a radical anti-Muslim rabbi in defending the need for the statute. Conversely, Rep. Jim Waldman, D-Coconut Creek, stated that the bill was “reprehensible” and stemmed “directly from a hatred of Muslims.” The latter half of this article’s title is also a Waldman quote. As might be expected, opposition came from MuslimAmericans, who felt they were being unfairly targeted, including the largest of such groups, the Council on AmericanIslamic Relations. However, by no means were MuslimAmericans the only religious groups opposed to the legislation. The national Jewish group, the Anti-Defamation League, was also opposed, as were the legislators making up the Florida Legislative Jewish Caucus. The pastor of the conservative Christian Florida “megachurch” Northland Church had also already gone on record in the preceding year, with his belief that such legislation would probably do more harm than good, despite the admittedly unlikely result that in so doing he was 12
RES GESTAE | July 2014
agreeing with the ACLU. Groups representing lawyers who would have to deal with the statute were also strongly opposed to its passage. The International Law Section of the Florida Bar authored a “White Paper” outlining several problematic areas, including violation of the separation of powers, infringement of freedom to contract, encroachment on Floridians’ religious freedom, interfering with foreign affairs, and more. The Family Law Section also authored a White Paper opposing the bill. The Family Law Section’s White Paper noted the lack of any need for legislation, because the extant principle of comity was already discretionary, and both state and federal law allowed courts to refuse to apply foreign law that was contrary to public policy. White Paper, §§ IV.A.-IV.C. The paper noted that UIFSA also already contained a requirement that foreign jurisdictions have substantially similar procedures to UIFSA, id. at § IV.D., and that the UCCJEA requires that a foreign child custody determination be made in substantial conformity with Florida’s jurisdictional standards in order to be enforced. Id. at § IV.E. At the point when the two White Papers were issued, the Sharia Law bill had already been narrowed from applying to all court actions, to apply only to those brought under Chapters 61 (divorce and separate maintenance, and UCCJEA) and 88 (UIFSA). The critical language of the bill at that point, requiring a court to find that (as cited in the ILS White Paper) a foreign law granted the “same fundamental liberties, rights, and Continued on page 14
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July 2014 | RES GESTAE
13
Family Law Matters Continued from page 12
privileges guaranteed by the State Constitution or the United States Constitution” in order to apply such law, was thereafter scrapped as well. The bill went through many amendments in its contentious passage. The question remains, what did Florida end up with, in the final version of the Sharia Law Statute? The answer, in my opinion, is mainly a “whole lot of nothing,” but also with a potentially very dangerous three-word phrase that pops up more than once. As to the former, the statute, now codified as new Section 61.40, Florida Statutes, Chapter 201410, Laws of Florida, contains one of the more bizarre group of “whereas” clauses that I have seen in a long, long, time. The preamble of the law includes this weirdness: WHEREAS, the common law and other court interpreted law of this state protects litigants from the application of unfair and unjust laws of foreign countries… The above whereas clause essentially admits that there is absolutely no reason for the statute to have ever been passed. No fewer than four additional whereas clauses follow, which cite to specific case law and procedural rules that are supposedly being “codified,” only further reinforcing the conclusion that the entire process was a colossal waste of time and money. To make matters worse, the text of the statute prohibits, at
three separate places, the enforcement of foreign laws that are “unjust or unreasonable,” a totally new standard which cannot be squared with the preamble’s repeated protestations that the statute only codifies existing law. The cherry on top of this shambolic cake is the statute’s final provision, a “footer” that the legislature, perhaps fittingly, forgot to assign any subsection number to, which similarly renders the whole thing entirely nonsensical: “The purpose of this section is to codify existing case law, and that intent should guide the interpretation of this section.” The Sharia Law Statute’s genesis was sorry enough to begin with. The final product is quite simply an embarrassment. Good luck if you have to deal with it. 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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RES GESTAE | July 2014
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July 2014 | RES GESTAE
15
by Henry Lee Paul
The Supreme Court amended The Rules Regulating Trust Accounts, in new Rule 5-1.2(c), to require all firms with more than one lawyer to maintain a written plan for compliance. The plan must include the identity of the lawyer(s) who sign checks, are responsible for required reconciliations, and answering any questions about the trust account. The written plan must be updated whenever there are material changes and the current plan must be distributed to all lawyers in the firm. Additionally, any lawyer who has knowledge of irregular trust accounting practices may report the noncompliance to the managing partner. If the noncompliance is not corrected in a reasonable time, the lawyer must report the noncompliance to The Florida Bar. This new rule was effective June 1, 2014. The intent of the new rule is to more clearly delineate responsibility for trust accounts and to lessen the possibility of theft and fraud. The Supreme Court has long held that misuse of client funds creates a presumption for disbarment. Trust accounting is often referred to as the third rail of lawyer discipline. However, in light of several highly publicized instances of lawyer theft of trust account funds, the Supreme Court has clearly signaled intent to increase vigilance involving lawyer trust accounts. Lawyers need to take this policy of vigilance seriously. Once
16
RES GESTAE | July 2014
a law firm trust account draws the attention of The Florida Bar, which often occurs because of a bounced check, many times caused either by bank error, simple accounting error or disbursement against uncollected funds, The Florida Bar will be notified by the bank. In such event, The Florida Bar will routinely ask for an explanation and will examine relevant trust account records. It is possible that The Florida Bar will now also ask to review the written plan. If a written plan is not maintained, and records are not accurately kept and all funds in trust accounted for, the law firm and responsible lawyers will likely be subject to discipline. The requirement of maintaining a written plan underscores the personal responsibility of a lawyer in maintaining a compliant trust account. The responsibility for maintaining a compliant trust account cannot be delegated. There are numerous instances of discipline resulting from law firm reliance on either employees or accountants. Fortunately, The Florida Bar, through the Law Office Management Assistance Service (LOMAS), offers numerous resources to assist members with trust accounting. These resources may be located on The Florida Bar website. LOMAS plans to have a free 1.5 CLE course available on the Florida Bar website to instruct members on how to create a written plan to comply with the new rule. Sample LOMAS law firm compliance plans are already posted and available to be downloaded. RG Henry Lee Paul is former Bar Counsel who now represents lawyers in all matters before The Florida Bar and offers risk management services on all legal practice matters, including trust accounting. He also represents applicants in all matters before The Florida Board of Bar Examiners.
Congratulations to the Members of the Lee County Bar Association’s
100 Club
Aloia Roland & Lubell, LLP Arend & Sisk, P.A. Associates and Bruce L. Scheiner, P.A. Bonita Springs City Attorney’s Office Costello Royston & Wicker, P.A. Boyle Gentile & Leonard, P.A. Burandt, Adamski & Feichthaler, P.L. Calvo & Calvo Coleman & Coleman Cole, Scott & Kissane, P.A. DeBoest, Stockman, Decker, Hagan, Cheffer & Webb-Martin, P.A. Engvalson & Associates, P.A. Fort Myers City Attorney’s Office Fowler White Boggs, P.A. 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. Green, Schoenfeld & Kyle, LLP Grossman Law & Conflict Management Hahn Loeser & Parks LLP Henderson, Franklin, Starnes & Holt, P.A. The Law Offices of Kevin F. Jursinski, P.A. Knott Ebelini Hart Kuhn Law Firm, PA Kushner & Kushner Lee County Legal Aid Society, Inc. McQuagge Law Firm North Law Firm, P.A. O’Halloran & O’Halloran, Attorneys at Law Osterhout & McKinney, P.A. Parvey & Frankel Attorneys, PA Prather and Swank, P.A. Patrone & Kemp, PA Pavese Law Firm Rhodes Tucker Roetzel & Andress, L.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. Strayhorn and Persons, P.L. Toll Law Viles & Beckman, LLC Webb & Scarmozzino, P.A. Weldon & Rothman, P.L. 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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July 2014 | RES GESTAE
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APPELLATE INSIGHT Is It Reviewable?
Preserving Error (Part 3)
By Stacy L. Sherman, Esq. and Margaret H. White-Small, Esq.
In the first two installments of this series of articles, the authors identified several ways to preserve an issue or trial court error for appellate review. The most commonly used methods are: (1) objections, (2) motions in limine, (3) offers of proof, and (4) motions for rehearing/reconsideration. This final installment identifies additional points that are necessary to note and are components of an effective and proper preservation of the record. They are: (1) make a record, (2) judicial notice, (3) tolling time, (4) stays, (5) invited error, and (6) fundamental error. First, creating a complete and accurate record is crucial. Always be sure that hearings and trials are attended and recorded by a court reporter or electronic reporter. The Appellant bears the burden of providing a complete record, including a transcript of the hearing/trial to the appellate court (FRAP 9.200(e)). Without a transcript or a Statement of Judicial Proceedings (FRAP 9.200(b)(4)), the appellate court might decline to consider your points raised on appeal. The corollary to this is that the appellate court is looking at a cold transcript. It cannot report rolling eye movements, or the tone of witness testimony. While the trial court will usually require witnesses to speak up and not use body language in response to questions, if it does not do so, you must attempt to place the flavor of the proceedings on the record if you want to preserve the error for appeal. Second, the trial court can take judicial notice of court files in other related cases, but not the CONTENTS of those files, unless a hearsay objection is waived (agreement of both parties). See Rubrecht v. Cone Distrib., 95 So.3d 950 (Fla. 5th DCA 2012). 18
RES GESTAE | July 2014
Third, motions for rehearing/reconsideration DO NOT toll the time to file a notice of appeal from an interlocutory order. It was said before, and is worth saying again. Motions for rehearing/reconsideration ONLY toll the time to file the notice of appeal as to final orders. Fourth, filing a notice of appeal DOES NOT operate as a stay of execution of judgment. In fact, by specific appellate rule, a notice of appeal does not divest the trial court of jurisdiction to enforce orders awarding separate maintenance, child support, alimony, or other awards necessary to protect the welfare and rights of a party pending appeal, including costs and attorneys’ fees. See FRAP 9.600(a) & (c). Fifth, in the middle of a trial it is easy to get caught up and not realize that you have presented a line of questions that may generate answers you do not want on the record. Because this inadvertent invitation of error was the sole responsibility of trial counsel, the ability to then raise that error on appeal is lost/ waived. The general rule is that a party who has invited an error cannot be heard to complain of that error. So if, for example, you raise something on cross-examination that is not within the scope of direct, and as a result, opposing counsel puts on a rebuttal witness who presents damaging testimony to your client, you may be said to have invited the error or opened the door by presenting testimony that was beyond the scope. While not technically an issue of preservation, this is nonetheless a trap for the unwary that is important to remember as it may cause the appellate court to refuse to address the error you wish to raise on appeal. Continued on page 20
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Sixth, appellate courts have inherent power to correct fundamental error even if there is not a timely objection. Fundamental error, vaguely defined as “going to the foundation of the case” is akin to the “I know it when I see it” analysis employed by United States Supreme Court Justice Stewart in the pornography context. While denials of substantive due process are more likely to be considered fundamental, just because an issue is constitutional does not automatically make it fundamental. Appellate courts are disinclined to find fundamental error; it is rare that an error is determined to be fundamental and thus exempt from the ordinary rules of preservation. Do not count on fundamental error to save you from your failure to preserve the issue. Incorporating the already mentioned methods, specifically, (1) objections, (2) motions in limine, (3) proffers, and (4) motions for reconsideration/rehearing and following the above mentioned points, specifically, (1) make a record, (2) judicial notice, (3) tolling time, (4) stays, (5) invited error, and (6) fundamental error, will help insure that your record on appeal is complete and your issues to be raised are preserved. RG
Stacy Sherman is licensed to practice law in both Florida and Maryland. She manages her own law firm in Fort Myers and practices in the areas of probate administration and appeals. She also assists trial attorneys with research and other litigation support. Stacy can be reached at stacy@stacylshermanpa.com.
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by Sara Fitzpatrick Comito
Four lawyers and a caveman are on a boat…stop me if you’ve heard this one before. It’s not a terrible joke, though; it’s a true story – as true as any fish story can be. Carlos Cavenago, Tom Chase, Doug Mohney and Randy Spivey were really on a boat, with a large bear of a fishing guide named Caveman. All kinds of hilarity ensued, plenty of fish were landed and funds raised for a worthy cause. “The best part of the trip was that none of us talked ‘shop,’” Cavenago said of the Keymorada Invitational Fly-Spin Tournament held in May. There was, however, no shortage of smack talk – and even an actual smack, but we’ll get to that later. The tournament raised more than $600,000 for the Crohn’s & Colitis Foundation of America (CCFA) this year, with proceeds exceeding $4 million since the inaugural tournament 10 years ago.
A net of support For years, Miami-based attorney Mitch Widom held a much-anticipated annual fishing excursion for friends and family in the Florida Keys. When his older daughter turned 10, she was diagnosed with Crohn’s disease, a painful and potentially debilitating inflammatory bowel disease (IBD) that affects as many as 700,000 Americans. Much more is known about the disease than it was then, partly owing to the success of the Keymorada tournament. The transition from fishing event to fundraiser was a natural one for Widom and his brother, attorney Glenn Widom, who shares responsibility for coordinating the tournament. Today it is the most successful charity fishing tournament in the state of Florida, and one of the most successful in the nation.
“Last year we helped start the first-ever full service Crohn’s & Colitis Center in South Florida, at the University of Miami,” Mitch Widom said. One of the best doctors in the field is on staff there, he attested. The center is also a leader in research, nutritional approaches and clinical treatments, including the infusions many sufferers require. These very tangible results are most gratifying. Another such tangible result: his daughter is now doing very well. She is a journalism major at the University of Florida and is working as a summer intern at a public relations and marketing firm. “The medications that have come out in the last five to six years are incredible, and have been life-changing for her and a lot of other people,” Widom explained. Closer to home, Keith Grossman has worked to raise awareness of Crohn’s and Colitis (he suffers from the former) as a Board of Trustees member for the CCFA’s Florida chapter, but his advocacy for awareness started much earlier. As president of the LCBA in 2009, he dedicated his year to a focus on community service. Glenn Widom served as speaker for an end-of-year dinner to recognize LCBA members’ dedication to giving back. With his encouragement, Grossman became involved with fundraising for the tournament and went on to initiate the SW Florida CCFA Leadership Board. Along with fundraising, Grossman is working on coordinating a support group and developing awareness for these diseases from which people often suffer in silence. “I’m available to be that contact person to help steer people to resources,” he said. For those who want to help, participating in or sponsoring the Keymorada tournament is a fun and easy way to do so. This year, 250 law firms answered the call.
Team LCBA: Doug Mohney, Carlos Cavenago, Randy Spivey, and Tom Chase July 2014 | RES GESTAE
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Telling tales out of school What happens in Vegas might stay there, but the same cannot be said of a fishing boat full of attorneys. Did you know Tom Chase can make a 245-pound catch in his sleep? Doug Mohney tells the tale: “Tom was asleep in a deck chair and ‘Caveman’ gave him a rod to hold while he placed the hook with bait in the live well. Upon the rod being placed in his hand, the slumbering Tom Chase immediately yanked upward to ‘set the hook.’ Never heard a large man nicknamed ‘Caveman’ scream like a 10 year old girl before.” Cavenago added, “Tom was the token old man on the trip so for him to fall asleep was really funny.” Poor Tom Chase also got slapped in the face by the tail of Spivey’s dolphin (mahi mahi – not Flipper) while attempting to stuff it into the fish box. Chase is known as a storyteller, and came away with no shortage of material of his own. Speaking of dolphin, “Carlos Cavenago gave a very stunning demonstration of how to subdue a large green fish in the boat. With total disregard for his own body, he demonstrated how you could throw yourself from the top of the bait well and slam down on the fish. We were so impressed, he demonstrated twice more, on the first day! Our first mate, Caveman, thought someone had dropped a big anchor when Carlos hit the deck!” For his part, Mohney was reportedly none too humble about his trophy for heaviest fish, a cobia. “Sorry, Randy,” he said, perhaps a bit disingenuously. For all the smack talk, the foursome depended on each other out there. Said Cavenago, “On the first day the waves and ocean were so bad that we took turns holding on to one another; specifically we had to hold on to the angler fishing so he didn’t
Randy Spivey, Doug Mohney, and Tom Chase
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Doug Mohney with trophy and founders Mitch and Glenn Widom
go overboard. I distinctly remember Tom holding on to me and me holding on to Randy. I thought to myself what started out as a charitable fun fishing excursion turned into a buddy system to make sure we didn’t die.” Everyone came home safe, those four fishermen and the caveman. The LCBA was well represented in the list of sponsors and entrants into the annual Law Firm Challenge. A good time was had by all. A lot of money and awareness was raised for a good cause. The bad news is there are limited spots available for the annual tournament. The good news is there are plenty of ways to help. To find out more visit www.keymoradafishing. com. If you need even more good news, you might enjoy knowing video exists of the dolphin smacking Tom. RG
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Community Connection
Featuring Scot D. Goldberg by Sara Fitzpatrick Comito
I was in a place where alcohol was my serenity and pills were my happiness. A place where I always had a rope on my nightstand and a perfectly sharpened knife in my bathroom. These are the words not of a down-and-out addict beaten down by decades of disappointment, loss and missteps. Rather, this person has accumulated enough trauma to arrive at rock Scot D. Goldberg bottom at the tender age of 15. A history of domestic abuse, alienation by peers, early access to alcohol and a co-occurring depression set the stage for a precipitous fall. Could such a perfect storm be diverted? In this case, yes. Believe it or not, this story has a happy ending. The above excerpt is from an essay written as part of the “Healing Through Reading” event, where FGCU students worked with youth in recovery from substance abuse at the Vince Smith Center to help them express their feelings through artwork, poetry and song.
Vince Smith provides residential treatment and education for males and females ages 13 to 17. It’s one of many centers and services administered through SalusCare, which grew out of a merger between Lee Mental Health and Southwest 26
RES GESTAE | July 2014
Lee County Schools’ teacher Barbara Knapp (second from left) and FGCU students worked with youth in recovery at the recent “Healing Through Reading” event.
Florida Addiction Services (SWFAS). According to attorney and SalusCare board member Scot Goldberg, the synergy created by the merger equals more than the sum of its parts. As a former SWFAS board member, he concedes it was a difficult process to unify the two large non-profits, but the results speak for themselves. “You really can’t find any other place in the area that does what we do,” Goldberg said. Whether insured or not, patients will find care for a substance dependency or mental health condition at a SalusCare facility. Services are available on a sliding scale or at no charge, including outpatient, residential, emergency/crisis services, prevention programming and community-based services to help individuals living at home. A founding partner at Goldberg, Racila, D’Allessandro & Noone, Goldberg focuses part of his practice on criminal law. As substance abuse issues are often an underlying factor in getting arrested, he is able to use SalusCare as a starting point for helping clients turn their lives around. Addiction to pain medications is a major problem in society, which Goldberg sees in some personal injury cases. The rise of the pure synthetic opiate formulation known as Roxicodone represents an especially frightening trend. “It has the same amount of painkiller as six of the bigger pills you get from your dentist,” he said. The baby aspirin-sized pill can be crushed and consumed in any number of novel ways. But for as many ingenious methods there are for going off the rails, there are ways to get help.
Community Connection When Goldberg gets a call from a family member of someone who’s been arrested for possession of “roxies” or the like, he advises letting the person get clean in jail, go to SalusCare and then come see him. From a legal standpoint, a dedication to getting well can be demonstrated to a judge. From a personal standpoint, “I can show the person that has the addiction the kind of help that’s out there if they want it,” Goldberg explained. His dedication is indeed personal, having had close family members with addiction issues. Most families are touched by a mental health or substance abuse issue at one time or another, and awareness that these conditions are medically based is reaching an all-time high,
according to Goldberg, with non-profits like SalusCare leading the charge. Here is more of that 15-year-old’s essay: I remember when I first walked through these doors, I was at my bottom. I had no hope, no faith. I was just an empty soul. But now I am full of life and proud of who I am. I have the hope, faith and courage that I never had before. To learn more visit saluscareflorida.org. RG
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RES GESTAE | July 2014
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The Dish
When relocating to any entirely new geography, people often attribute a certain optimistic mystique to their new homeland. For me, Florida represented daily breakfasts al fresco, sunset walks on the beach and cocktails on the waterfront. Fast forward to today, and my quotidian couldn’t be further from that postcard vista. Life is life wherever you go, and the water’s pretty hard to come by, with monolithic beachfront developments guarding the gulf and back bays like ramparts, and busy family schedules, seasonal traffic snarls and spring breakers providing further discouragement. As I’m sure Wilde meant to say, “Work is the curse of the beach-going classes.” I do love my job – especially this humble little dining-out journal when it brings me close to the water. When I moved here, I was a little taken aback by the paucity of waterfront dining. Mostly, I didn’t quite understand that all of Fort Myers wasn’t all that near the beach. Shooters shut down as quickly as I discovered it. Then I ventured further afield, and discovered the place most natives and transplants will recall as the home of the local Sunday reggae party: the Bridge Restaurant, home to shellfish, bar food and a whole lot of sticky, frozen rum drinks. It looked very much like a bunch of spring breakers who didn’t get the memo that college was a very long time ago. As Fort Myers has matured over the years, so has the availability of some more-elegant casual dining. Doc Ford’s
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Rum Bar & Grille has taken up residence in that location under the Matanzas Bridge near the venerable, salty institution that is Bonita Bill’s. Much polish has been applied to the Fisherman’s Wharf address. If you didn’t make it to the inside of the Bridge, it was probably for good reason. But make a point of admiring the rich, lustrous wood furnishings and floor-to-ceiling windows looking out at the Back Bay and its fleet of shrimpers, one of which may have provided the “pink gold” on your very fork. Randy Wayne White, author of the Doc Ford novels, used to live over there in a dilapidated house among those stalwart folks. There are rum drinks, certainly. But they’re for real grownups, and made from fresh muddled mint, blackberry puree, sharp ginger beer and other real food items. Live music acts still play on the lower deck level. Some standard tavern fare is on offer, like chicken wings, fish fingers and flatbreads. But whether you order the banana leaf snapper, achiote grilled grouper, halfroasted chicken with Cuban chimichurri or the pulled pork sandwich, you’ll find the emphasis is on Caribbean-inspired freshness, flavor and presentation. Just in advance of sunset, my family watched the shrimp boats head out for the night as we tasted the Yucatan shrimp, which, despite its name, likely came from one of the local fleet. The restaurant is proud of this peel-and-eat delicacy of just about the largest, pinkest, cleanest shrimp imaginable. It
The Dish List
where to meet & eat has even been featured in the New York Times and Boston Globe. A sauce of butter, key lime and mild Colombian chiles has just enough zing to highlight the perfectly cooked, meaty crustaceans. A loaf of warm bread for dipping accompanies. I could order a pound, a mojito and a sunset on the bay, and be closer to my Florida mythology. Maybe finish it off with a refreshing slice of key lime pie. The perfect, tasty antidote to the common life. RG
Doc Ford’s Fort Myers Beach 708 Fishermans Wharf www.docfordsfortmyersbeach.com (239) 765-9660 Monday – Sunday, 11 a.m. to 10 p.m. Sara Fitzpatrick Comito is the Communications Editor for CONRIC PR & Marketing | Publishing, and associate editor of Res Gestae magazine. For suggestions and comments on this regular feature, contact Sara at Sara@ConricPR.com.
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THE DISH LIST
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Take a break from the Ordinary New Age ItAlIAN RestAuRANt Invites LCBA Members to Experience Fine Italian Cuisine at Affordable Prices for Lunch or Dinner 3-Course Dinner, 4-6pm Daily Includes Soup or Salad, Choice of 7 Entrees, Plus Dessert for Only $9.95
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July 2014 | RES GESTAE
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Legal Lens 1
2
3
4
5 7
6
James Franklin’s 90th Birthday Celebration 1 Mr. Franklin with his former secretary, Chris Young 2 Nickie Stewart captures the cake cutting 3 Mr. Franklin is next to his dad in the 1963 LCBA Membership photo 4 Mr. Franklin’s 1993 retirement portrait 5 “Buddy” Hume, Bruce Stanley, John Noland and Mr. Franklin 6 Caulette Logelin, Courtney Ward and Tulio Suarez 7 Mr. Franklin, Charles Basinait and summer clerk Austin Turner
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At a recent YLD social at Spirits of Bacchus, 33 attendees mingled with community members and fellow lawyers, including Public Defender Joe Dernback, Assistant State Attorney Mike Colombo (on left) and Public Defenders Cameron Brown and Jennie Simons (on right).
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On the Bench Hon. Michael T. McHugh Judge Mike McHugh always hoped to be where he is today. As a nine-year-old boy, he went door to door for now-Senior Judge James Thompson, a family friend, and became fascinated by the prospect. “I think I always respected the position,” he said, and had the bench in mind when he entered law school. “I definitely enjoyed being an attorney,” he affirmed. However, in some respects he considered his advocacy on behalf of clients a zero-sum game. “Every time you win, you win at the expense of someone else.” The judge was appointed by Governor Jeb Bush in 2006, and since then he’s enjoyed the process of pursuing the correct ruling in a case, and the requisite freedom from the advocate’s assumption that any one side is “more right” than the other. It’s gratifying when attorneys are informed and knowledgeable about relevant case law and statutes, especially in the very diverse general civil docket. More often than not, they are. “If they’re not, you’re still required to make the ruling, and you want that ruling to be correct,” he said. Running is a favorite activity of Judge McHugh, a sport that requires a lot of discipline. Another form of discipline comes into play in making rulings in the courtroom. “To some degree you have to go through the day and make decisions while putting aside the implications of the decisions you make,” he said. Occasionally, it’s impossible to do. Nonetheless, “We have to make determinations based on what the law is.” And then running is a good way to blow off steam. The judge had plenty of practice focusing on what needs to be done while at the State Attorney’s Office, where he worked right after law school at the University of Florida. In one case, he was tasked with waiving a 14-year-old into the adult system to be tried for armed robbery and murder. This juvenile showed no remorse, and the young prosecutor wondered at the commentary the case presented on our society as a whole. Then as now, the bottom line remains: “I had an obligation as far as what I was required to do.” Judge McHugh most enjoys spending time with his wife and three kids, ages eight to 15.
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From the Bar James Franklin, Jr., Esq. Credentials are nice, courtroom hours logged always count, and high-profile cases are certainly C.V.-worthy. More essential, however, is this wisdom from Jim Franklin, Jr.: “Work hard, be yourself and use your own personal talent, no matter what it is.” Mr. Franklin just turned 90 years old, as did the firm that bears his father’s name. Although he retired back in 1993, he still finds himself in the office every week. These days, it’s to offer his wealth of experience to the next generation of attorneys that will likely see Henderson Franklin Starnes & Holt, P.A. past the 100-year mark. “I find my mind sitting around in neutral a lot of time,” he said, “and when I talk to these young folks it kicks it back into gear.” The “young folks,” meanwhile, benefit from the breadth of knowledge of one who’s seen many changes in the community and the practice of law. Jury selection was once achieved by randomly selecting slips of paper bearing potential jurors’ names from a hand-cranked metal cage. Court reporters knew shorthand. Communication took place by way of conversations between people or at the very least, a signed document that arrived on company letterhead. For the most part, the changes have been good. Jury selection is more efficient, for instance. Another positive change has been the recent focus on mediation. Some have pros and cons. While Franklin acknowledges the time savings associated with digital filings and communication, “Email to a large extent takes the place of conversation.” With the growth of the population, the court system is constantly challenged to procure the infrastructure, personnel and budgets needed to keep apace. One development that has no downside is that women make up a healthy percentage of attorneys today. “It is truly gratifying that in the legal world today there are as many or more females than males,” Franklin asserted. “They prove constantly they’re where they should be.” Recently, Franklin and his wife Vonceil have become involved with the Southwest Florida Museum of History – or “the little yellow house,” as they call it – providing connections between people and events to the staff there, and even being available to museum-goers who are curious about the area’s past. Franklin was president of the LCBA in 1961.
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Legal Briefs Costello named Florida Bar RPPTL Fellow T. John Costello, Jr., an attorney at Kelley Kronenberg, P.A. in Fort Myers, was recently selected as a Fellow with the Real Property, Probate and Trust Law Section of The Florida Bar. The RPPTL Fellowship Program awards four fellowships per year to active members of The Florida Bar who substantially focus their practice in the areas of Real Property, Probate or Trust Law. As a Fellow, Costello will attend Executive Council meetings, serve as an active member of the Membership and Inclusion Committee, and be an active member of at least one substantive committee. As an active committee member, Costello will be required to complete one substantive work project on behalf of the committee on an annual basis. Costello’s term as a Fellow will run from July 1, 2014 through June 30, 2016. Costello’s law practice focuses on estate planning, probate, related litigation, and on intellectual property matters.
Porter joins Grossman Law & Conflict Management Melody Porter has joined Grossman Law & Conflict Management as its newest associate attorney. A Fort Myers native, she has returned to Southwest Florida to begin her legal career. After teaching middle school civics as part of her Bachelor of Science degree in Social Science Education, Porter realized how important the law and court systems are to our community. Graduating from Florida State University in 2010, Porter went on to the University of Miami School of Law, where she graduated in 2013. She was actively involved as a Senator for the Student Bar Association as well as a competitor on the Charles C. Papy Moot Court Board. Porter focused her studies on child, marital and family law while also working for a private family law firm. Prior to working for Grossman Law & Conflict Management, she volunteered with the Department of Children and Families’ Fort Myers office.
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Legal Briefs Nulman named American College of Civil Trial Mediators fellow Jim Nulman of Fort Myers-based Nulman Mediation Services has been inducted as a fellow into the American College of Civil Trial Mediators. Established in 1995, the American College of Civil Trial Mediators recognizes full-time mediators who have demonstrated the highest ethical standards and level of achievement in the field of alternative dispute resolution. There are currently150 fellows nationally, with fewer than 25 from Florida. The criteria for fellowship also include a commitment to furthering the mediation profession. Nulman is a frequent guest lecturer for statewide civil certification mediation courses and seminars, and regularly assists lawyers seeking mediation certification. Following 25 years as a commercial litigator, Nulman opened his own practice and began mediating and arbitrating full time eight years ago. He currently mediates more than 200 disputes a year, ranging from two-party disagreements to complex multi-party disputes of up to 25 parties.
Gurgold Published by Thomson Reuters Thomson Reuters has published Eric Gurgold’s chapter “Strategies for Trusts and Estates in Florida,” in the recent book Inside the Minds. The book analyzes the challenges trust and estate practitioners face, and discusses key issues such as homestead law, trustee concerns and the probate process. An attorney with Henderson, Franklin, Starnes & Holt, P.A., Gurgold is Florida Bar Board Certified in Wills, Trusts & Estates law. He concentrates his practice in the areas of estate planning and administration, elder law, probate litigation, title insurance claims related to probate issues, business law and taxation. Gurgold assists clients in the preparation of wills, trusts, family limited partnerships, inheritance and estate tax returns, as well as providing counsel to minimize income and estate taxes. He serves on the Estate and Trust Tax Planning Committee, as well as the Probate Law and Procedure Committee of The Florida Bar Real Property, Probate and Trust Law Section.
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Ave Maria School of Law Named
BEST
CATHOLIC LAW SCHOOL IN THE UNITED STATES for the DEVOUT By National Jurist’s PreLaw Magazine National Jurist’s PreLaw Magazine has ranked Ave Maria School of Law the most devout Catholic law school in the nation. We are proud of this recognition because it underscores the importance we place on our mission of teaching the law as a vocation. We strive to educate lawyers who will fight to defend our Constitution, promote a Culture of Life, and advance the cause of justice and freedom for all, a noble mission in today’s world.
SOUTHWEST FLORIDA’S LAW SCHOOL located on the Vineyards Campus, Naples 1025 Commons Circle, Naples, Florida • (239) 687-5300 • avemarialaw.edu Licensed by the Florida Commission for Independent Education, license number 4007. Fully accredited by the American Bar Association.
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