Res Gestae — January 2015 by Lee County Bar Association

THE OFFICIAL AWARD WINNING PUBLICATION OF THE LEE COUNTY BAR ASSOCIATION

PILLARS OF A COMMUNITY Professionalism and ethics

JANUARY 2015

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Contents AD DIRECTORY

22 26 On The Cover: (Back row, left to right) Matthew Linde, John Agnew, Aaron Haak, (third row) Carlos Kelly, Keith Upson, Scott Atwood, PJ Scheiner, Dustin Butler, (second row) Sara Fitzpatrick Comito, Kelly Fayer, Linda Fiore, Kim Bocelli, Connie RamosWilliams (front row) April Bordeaux, Karla Campos-Andersen, Audrey Singleton, Beverly Grady, Stacy Sherman, Anne Dalton

Cover Photo: Regina Samone Photography

features 14

Florida Revises LLC Rules

by Kathryn E. Pugh, Esq.

22 The Year of

Professionalism and Ethics

by Sara Fitzpatrick Comito

34 Excellence in Safety and

Quality Gets Recognized

by Jim Nathan

26 Legal Lens

28 Community Connection CROW

by Sara Fitzpatrick Comito

departments 6

Letter from the President

by Anne Dalton, Esq.

100 Club

Calendar of Events

Ethically Speaking

What to do when you receive a bar complaint

Social scene photos

New Members

32 The Dish

Fort Myers Brewing Company & The Nosh Truck

36 On the Bench

Hon. Robert Branning

38 From the Bar

Beverly Grady, Esq. & Margaret Small-White, Esq.

42 Real Estate

Where to buy, sell or lease

by Henry Lee Paul, Esq.

Art Happenings

44 Legal Briefs

by Lydia Black

RES GESTAE | January 2015

News and happenings

Allied Business Solutions 21 Ave Maria School of Law IFC Barbara Pizzolato 45 Boyle, Gentile & Leonard, P.A. 29 Boyle, Gentile & Leonard, P.A. 9 Buchanan Ingersoll & Rooney PC/ Fowler White Boggs 20 Burkett Law 17 Buschbom Mediation 15 Business Observer 45 Calvo &Calvo Attorneys at Law 9 CONRIC PR & Marketing | Publishing 38 Corbin Henderson Company 42 Dial A Nurse Inc. 15 Donna Tisch 36 Edison National Bank BC Estero Country Club 9 Fort Myers Court Reporting 21 Freidin, Dobrinsky, Brown & Rosenblum P.A. 7 Garvin Law Firm 13 Gregory N. Woods 46 Goldberg, Racila, D’Alessandro & Noone, LLC 19 Hahn Loeser & Parks, LLP 41 Henderson, Franklin, Starnes & Holt, P.A. IBC Hendry Street Partnership 42 Henry Lee Paul 41 Hotel Indigo 31 Ivy Grouup Consultants, Inc. 43 Jason L. Gunter, P.A. 35 Joel H. Brown 13 Jurisco, Inc 37 Kempton P. Logan 19 Kremenchuker Law Firm 21 Kuhn Law Firm IBC Kushner & Kushner Attorneys 18 Law Firm of Scott T. Moorey 37 Law Office of Kevin Jursinski & Associates 39 Law Office of Kevin Jursinski & Associates 43 LCBA Bench/Bar Dinner-Save the Date 40 Leonard P. Reina 18 Leslea Ellis, LLC 29 Levins & Associates, LLC 19 Livingston Loeffler, P.A. 17 McHale Properties 42 Merit Court Reporting, Inc. © 17 Musca Law Office, Inc. 3 Mutual of Omaha 35 Over2Social 15 Patterson Eskin & Ball 43 Premier Executive Center 42 Spivey Law Firm, P.A. 5 Stephan, Cole & Associates 43 T 3 Communications 35 Veranda Restaurant 31 Veritext Court Reporting 41 Von Ahn & Associates 44

Automobile Accidents Motorcycle Accidents Truck Accidents Victims of Drunk Drivers Slip & Fall Accidents

Note from the President

Lee County Bar Association 2015: The Year of Professionalism and Ethics. “There’s no such thing as simple. Simple is hard.” – Martin Scorsese What to do when the other attorney violates The Standards of Professional Courtesy and Conduct for Lawyers Practicing in the 20th Judicial Circuit? Throughout 2015, our Judges and Attorneys present useful, thoughtful tips to help us deal with notso-simple professionalism and ethical problems. January 16: Practice Section Chair Mary Briedé and Co-Chair Carlos Kelly conduct a lively Judicial and Attorney Panel on General Civil and Business Litigation Practices.

February 20: Henry Lee Paul, former Bar Counsel, moderates a Panel of Past LCBA Presidents (both Judicial and Attorneys). Christof’s on McGregor is closed to the public on March 7 to host our annual Bench/ Bar dinner. We reduced the cost to $65 per person ($75 after February 1), Judiciary complimentary as always. See page 40 for the menu, check leebar.org for details. Our ADR Practice Section, chaired by yours truly and co-chaired by Bill Merchant, presents an Arbitrator/Mediator and Judicial Perspective on Arbitration and Mediation professionalism and ethics on April 10. The Annual LCBA Charity Golf Tournament moves into an earlier time slot this year. Our 2015 LCBA Charity is the pre-eminent arts organization, the Lee County Alliance for the Arts. Appellate Practice Section Chair Margaret White-Small and Co-Chair Stacy Sherman Haverfield will be particularly busy with two 2nd DCA Judicial Practice Panels, the first on April 30 and the second on September 18. Judge Margaret Steinbeck leads a Judicial Panel on May 1, focusing on Judicial Ethics and Professionalism. This panel is unique in that it offers an ethics credit specific to our Judiciary. Practice Chair Russell Schropp brings us back to work on August 21 with a Judicial and Attorney Panel on Professionalism and Ethics in Land Use and Government Law.

ADMINISTRATIVE TEAM Executive Assistant, Lawyer Referral & Pro Bono Coordinator Lisa Poulin

EXECUTIVE COUNCIL President - Anne Dalton, Esq. Vice-President - Scott Atwood, Esq. Secretary - Kelly Fayer, Esq. Treasurer - Daniel Endrizal, Esq. Member-at-Large - Beverly Grady, Esq. Member-at-Large - Aaron Haak, Esq. Past President - John D. Agnew, Esq. YLD President - Kimberly Bocelli, 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. & Karla Campos-Andersen, Esq.

Pro Bono

Audrey M. Singleton, Esq. & Aaron Cilek, Esq.

Membership

Janette Smith, Esq.

Social Events

Amanda Mitteer-Bartley, Esq.

PRACTICE SECTION CHAIRS Alternative Dispute Resolution

Anne Dalton, Esq. & Bill Merchant, Esq.

Appellate Law

Margaret White-Small, Esq. & Stacy Sherman, Esq

Criminal Law

On October 16, Practice Chairs Keith Upson and P.J. Scheiner combine the talents of the Criminal Law Practice Section and Tort Law Practice Section in a joint Professionalism and Ethics panel perspective.

Real Property, Probate & Trust Law

The First Annual Ethics Rodeo is on November 7, corralled by Family Law Practice Section Co-Chairs Ryan O’Halloran and Dustin Butler right before the annual B-BQue at the Smoot Buckingham Property.

General Civil & Business Litigation

December 18th’s Double-Header CLE winds up the Year of Professionalism and Ethics with Practice Chair Kenneth Kemp II and Co-Chair Matthew Linde’s Panel on Ethics and Professional Pitfalls in the Chronology of a Probate Dispute, plus a Presentation by Robert Klein on “Lawyers Behaving Badly – Latest Trends in Florida Bar Discipline” And, yes, Mr. Scorsese, simple is hard…. But well worth it! Anne Dalton, Esq. adalton@daltonlegal.com | (239) 337-7900 6

RES GESTAE | January 2015

Keith Upson, Esq. Kenneth Kemp, Esq. & Matthew Linde, Esq.

Mary Ellen Briedé, Esq. & Carlos Kelly, Esq.

Tort Litigation

Preston John (PJ) Scheiner, Esq.

Family Law

Dustin Butler, Esq. & Ryan O’Halloran, Esq.

Land Use & Governmental Law Russell Schropp, Esq.

Personal Injury Medical Malpractice Wrongful Death Family Law

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the Lee County Bar Association’s

100 Club

Absolute Law 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. Cole Scott & Kissane, P.A., Bonita Springs Office DeBoest, Stockman, Decker, Hagan, Cheffer & Webb-Martin, P.A. Engvalson & Associates, P.A. Florida Rural Legal Services 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. Levins & Associates, LLC 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. 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 | January 2015

THE OFFICIAL AWARD WINNING PUBLICATION OF THE LEE COUNTY BAR ASSOCIATION

239.334.0047 resgestae@leebar.org

Staff Box PUBLISHER Connie Ramos-Williams 239.690.9840 EDITOR-IN-CHIEF Beverly Grady, Esq. ASSOCIATE EDITOR Sara Fitzpatrick Comito CREATIVE DIRECTOR April Bordeaux ADVERTISING DIRECTOR Linda Fiore 239.690.9840 CONTRIBUTING WRITERS Sara Fitzpatrick Comito Anne Dalton, Esq. Henry Lee Paul, Esq. Kathryn Pugh, Esq. Lydia Black Jim Nathan BILLING INQUIRIES 239.334.0047

7370 College Parkway, Suite 206 Fort Myers, FL 33907 239.690.9840 | ConricPR.com info@ConricPR.com Res Gestae is an award winning magazine published monthly by CONRIC Publishing in partnership with the 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. Copyright© 2015. 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 the Lee County Bar Association at info@leebar.org.

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January 2015 | RES GESTAE

Calendar of Events Some dates for 2015 Section Meetings have not been confirmed - Check our website for details!

January 2

January 28

February 19

Noon – 1 p.m. at The Connection Café, First Street at Jackson, downtown Fort Myers

5:30 – 6:30 p.m., Conference Room, Henderson Franklin Starnes & Holt, PA

Noon – 1 p.m., details TBA

Young Lawyers Division Meeting

January 9

RPPTL Practice Section Brown Bag Lunch Noon – 1 p.m., Hon. Keith Kyle’s Hearing Room 4J

January 15

Family Law Practice Section Brown Bag Noon – 1 p.m., details TBA

January 16

Ethics in Depositions CLE: When Opposing Counsel Behaves Badly

LCBA Executive Council Meeting

January 29

Land Use and Governmental Law Practice Section Lunch Meeting Noon – 1:30 p.m, Lee County Public Works, 1500 Monroe St, 1st FL Conference Room. Russell Schropp, Chair

January 30 & 31

Lee County Mock Trial

Co-chairs: Hon. Mary Evans & Karla Campos-Andersen. Contact Karla to volunteer today! Attorneys and judges needed for judging the competition in two-hour time slots.

11 a.m. – Noon at Sidney and Berne Davis Art Center. Panel with Hon. Kathy Sturgis and Past Presidents Marcy Shaw and John Agnew, moderated by Henry Lee Paul. (1 hr. Ethics and Professionalism credit applied for)

Membership Luncheon (Past Presidents honored) Noon – 1 p.m. Charity: Clinic for the Rehabilitation of Wildlife (CROW)

February 20 & 21

20th Circuit Mock Trial

Presented by Junior Achievement and LCBA for Lee County students. Contact Christina Schwinn to volunteer.

February 6

February 25

LCBA Membership Meeting

11:30 – 1 p.m. at a location TBA. Assistant Attorney General Elba Martin-Schomaker (Tampa Criminal Appeals Division) will speak on “State Appeals: Preservation of Error and Perfection of the Record”. Keith Upson, Chair.

Martin Luther King, Jr. Day Holiday Lee County Bar Association office closed.

Professionalism Panel CLE

Law Job Shadow Day

February 5

January 19

February 20

In Charlotte County this year. Cochairs: Hon. Mary Evans & Karla Campos-Andersen. Donna Dunakey is the Charlotte County Coordinator. To volunteer call (941) 255-0808, ext. 3087or e-mail donna.dunakey@ yourcharlotteschools.net.

11:00 a.m. – Noon at Sidney & Berne Davis Art Center, Fort Myers. $35 members, $60 non-members, includes membership lunch following CLE Program. General Civil & Business Litigation Practice Section presents: Panel with Hon. Elizabeth Krier, Hon. John Duryea, attorneys Vicki Sproat and Kim Patrick Hart. Moderated by Henry Lee Paul, Esq. (1 Hr. Ethics applied for) Noon – 1 p.m. at Sidney & Berne Davis Art Center, Fort Myers. Lunch without CLE: $15 members, $25 non-members

Family Law Practice Section Brown Bag

Criminal Law Practice Section CLE & Lunch Meeting

Young Lawyers Division Meeting

Noon – 1 p.m. at The Connection Café, First Street at Jackson, downtown Fort Myers

LCBA Executive Council Meeting

5:30 – 6:30 p.m., Conference Room, Henderson Franklin Starnes & Holt, PA

February 26

Land Use and Governmental Law Practice Section Lunch Meeting Noon – 1:30 p.m. at Lee County Public Works, 1500 Monroe St, 1st FL Conference Room. Russell Schropp, Chair.

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

RES GESTAE | January 2015

YOU ASK FOR AFFORDABLE CLE - THE LCBA RESPONDS! Local Live Continuing Legal Education in 2015 Professionalism and Ethics Practice Pointers from The Judiciary and Your Peers $35 includes CLE, Membership Luncheon and Meeting

In your recent Membership Survey, you overwhelmingly requested affordable CLEs on topics of local interest. Your LCBA Practice Section Chairs, Co-Chairs and others will moderate Live Judicial and Attorney Practice Panels with Ethics and Professionalism CLE credits in 2015.

January 16, 2015

October 16, 2015

CLE: General Civil & Business Litigation Practice Panel Moderators: Chair Mary Briedé & Co-chair Carlos Kelly. Panel: Honorable Judges Krier & Duryea; Attorneys Vicki Sproat and Kim Patrick Hart. 11 am – 11:50 am at Sidney and Berne Davis Art Center

CLE: Tort Law Practice Section Chair PJ Scheiner & Criminal Law Practice Section Chair Keith Upson Panel: Judge Gagliardi and Manalich; Attorneys Ken Oliver and Doug Molloy 11 am – 11:50 am at Sidney and Berne Davis Art Center

November 7, 2015

February 20, 2015

CLE: Florida Supreme Court Commission on Professionalism Member Moderator: Henry Lee Paul. Panel: Honorable Judge Kathy Sturgis, Past LCBA Presidents Marcy Shaw and John Agnew. 11 am – 11:50 am at Sidney and Berne Davis Art Center

May 1, 2015

April 10, 2015

CLE: Land Use & Govt. Law Practice Section Moderator: Chair Russell Schropp Panel: County Attorney Richard Wesch; Honorable Donna Marie Collins, Chief Lee County Hearing Examiner, and Attorney/Executive Council Member Bev Grady 11 am – 11:50 am at Sidney and Berne Davis Art Center

CLE: Alternative Dispute Resolution (ADR) Practice Section Moderators: Chair Anne Dalton & Co-chair Bill Merchant. Panel: Honorable Judges Laboda, McHugh & Keith Kyle, Arbitrators/ Mediators Anne Dalton and Bill Merchant 11 am – 11:50 am at Sidney and Berne Davis Art Center

April 30, 2015

Additional Free CLE Opportunity at the Justice Center! CLE: Appellate Practice Section Moderators: Chair Margaret WhiteSmall & Co-chair Stacy Sherman Panel: Second District Court Judges: “Practice Pointers from the Judges’ Perspective”. Panel: Honorable Judge Casanueva and additional Appellate Judicial Panel members; 2 pm – 4 pm

CLE: Judicial Ethics Panel: Moderated by Judge Margaret Steinbeck Judicial Panel to be announced 11 am – 11:50 am at Sidney and Berne Davis Art Center

August 21, 2015

September 18, 2015

CLE: Appellate Law Practice Section Chair Margaret White-Small & Cochair Stacy Sherman Appellate Judicial Panel to be announced. 11 am – 11:50 am at Sidney and Berne Davis Art Center

Buckingham BAR-B-Q Ethics Rodeo CLE: Family Law Practice Section Chair Ryan O’Halloran & Co-chair Dustin Butler Panel: Judge Corbin, Magistrate Carolyn Swift and additional panel members 11 am – 11:50 am at “The Smoot Property,” 6250 Jackson Road, Fort Myers, FL 33905

December 18, 2015

Two-for-One CLE Special at the Sidney and Berne David Art Center! CLE: 10 am – 10:50 am Robert Klein, Esq. “Lawyers Behaving Badly-Latest Trends in Florida Bar Discipline” CLE: 11 am – 11:50 am Real Property Probate & Trust Law Practice Section Chair Kenneth E. Kemp, II & Co-chair Matthew Linde Panel: Judge Hugh Starnes, Attorney Marve Ann Alaimo & Dennis White: “Ethics and Professional Pitfalls in the Chronology of a Probate Dispute”

Check the LCBA Calendar and Practice Section Announcements for Additional CLE Opportunities During Individual Practice Section Meetings. January 2015 | RES GESTAE

Ethically Speaking

What to Do When You Receive a Bar

by Henry Lee Paul

The chances are good you will receive a bar complaint at least once in your career. The Florida Bar has averaged in excess of 7,000 bar complaints over the last five years. The number of total inquiries to the Attorney Consumer Assistance Program (ACAP) was approximately 22,000 last year. Although The Florida Bar does not keep statistics that identify complaint practice areas, anecdotal information indicates high-risk areas include criminal law, family law and trusts and estates. Complaints can be made by anyone, including a client, former client, opposing party or lawyer, or a judge. ACAP attorneys in Tallahassee handle intake for almost all complaints. However, trust account matters are often referred directly to the appropriate branch. A complaint can be dismissed without a request for a response from the lawyer if the ACAP attorney determines that, even if true, the allegations will not support a rule violation. The ACAP attorney can ask the lawyer for a response in writing within 15 days. Requests for extension of time to respond are liberally allowed, provided the respondent confirms, in writing, with a copy to the complainant. When responding to a complaint, provide a thorough response and attach or reference any supporting written documentation. Supporting documentation is often the most effective way to obtain a quick dismissal. A good way to avoid a bar complaint, or to obtain a dismissal, is to communicate with your client and document the communication. Additionally, follow instructions. For example, if a response is longer than 25 pages, it will be returned. The duty of confidentiality is not eliminated by the filing of a bar complaint. A responding lawyer may provide information necessary to defend against allegations, but this does not grant the lawyer liberty to disparage a client unnecessarily. The complaint is confidential until dismissed or upon grievance committee 12

RES GESTAEâ&#x20AC;&#x201A;|â&#x20AC;&#x201A;January 2015

action, after which the file will become a public record. The complainant will have an opportunity to rebut the initial response within a 10-day period. Additional responses may be allowed if requested. A respondent is also required to certify that the complaint has been disclosed to an employer law firm. ACAP should make a decision within three months. If the complaint is dismissed, the file will be destroyed after one year. If the file is not closed at ACAP, it will be sent to one of five branch offices. The Tampa Branch is responsible for the 20th Circuit. Approximately 2,400 of the 7,000-plus annual complaints were forwarded to a branch last year. Statewide, there were 993 total cases after grievance committee review and a total of 391 discipline orders. The assigned bar counsel in the branch may dismiss the case or send to the grievance committee for further investigation. Lee County has two grievance committees; Charlotte County and Collier County each have one committee. The best way to handle an initial response to a complaint is to take it seriously and prepare a thorough response, or hire a lawyer experienced in the disciplinary process to prepare a response. I have heard from many a respondent who regretted not taking an initial complaint seriously enough. Once a complaint leaves ACAP, it can start a far more intrusive and time-consuming process. 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. He also represents applicants in all matters before The Florida Board of Bar Examiners.

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FLORIDA REVISES LLC RULES by Kathryn E. Pugh, Esq.

In the first substantial revision to Florida’s Limited Liability Act since 1999, an entirely New Act replaces existing Florida Statutes Chapter 608 with Florida Statutes Chapter 605. The New Act became effective as of January 1, 2014 for all new LLCs being formed or registering in Florida after January 1, 2014. For any LLCs in existence as of January 1, 2014, the New Act becomes effective as of January 1, 2015. The delay was meant to allow plenty of time to review the new statute and make any changes necessary to the operating agreement or documents. Since 1999, LLCs have become more numerous and this major revision allows Florida law to “catch up” with practices in other states and case law, conform to accepted practices and make it more in line with the Revised Uniform Limited Liability Act. The basis for the new 605 is the 2006 Revised Uniform Limited Liability Company Act (“RULLCA”) as amended in 2011. But the new 605 also retains many provisions from 608 and uses language and approaches from Florida’s Revised Uniform Partnership Act and Florida’s Business Corporation Act. This article is meant to highlight some of the differences between the new Chapter 605 with the now repealed Chapter 608. In addition, highlights of the changes affecting other Florida Statutes such as Chapter 621, 48, 620 and 607 will be discussed. It is not possible to discuss all of the changes, so everyone is encouraged to research how these changes may affect them and their clients. The good news is that some aspects of 605 are the same or substantially similar to 608. Where the wording is changed and substantially changed, the intent is for the law to remain the 14

RES GESTAE | January 2015

same as existing. It will be interesting how the case law evolves over the next few years. The definitions in 605.0102 have been expanded and revised. This was necessary because of the addition of new concepts and the amendment of others. For example, definitions for domestications and interest exchanges have been added along with some associated terms, as those are new to Florida LLC law. A 2011 amendment to 608 regarding charging orders (the so-called Olmstead Patch) remains unchanged in 605.0503. The 2011 amendment clarified the use of a charging order by a judgment creditor against a member’s interest following the Florida Supreme Court opinion in Olmstead v. Federal Trade Commission, 44 So. 3d 76 (Fla. 2010). Another item that did not change is the statutory apparent authority of members to bind the LLC. By default, a member, as an agent of the LLC, has the authority to bind it. Existing 608.4235 has been carried forward as 605.04074 and existing 608.4235 has been carried forward as 605.0301. 605.04074 defines agency rights of members and managers and 605.0301 defines who may bind the LLC. 605.0105’s non-waivable provisions do not include a prohibition on including a term in an operating agreement that modifies the authority of the members. The operating agreement is not public record, so anyone who regularly does business with an LLC would be well served by asking for a copy. As an aside, 605 does not require an LLC to put anyone on notice that they are a manager- managed LLC, which is consistent with 608. That would be another reason to ask for Continued on page 16

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Continued from page 14 a copy of the operating agreement. Note that 605.0302 has been added, which allows for Statements of Authority. The Statements of Authority act to put third parties on notice of any limitations of authority on the members or managers. Under 605.0303, a Statement of Denial can be filed by persons named in the Statement of Authority. Though a major part of the non-waivable provisions involve the duties of the members, essentially the overall duties of the members remain unchanged. The items that have changed are discussed below. As in 608, no shelf (in which the LLC has no members when formed) or series (in which there is an operating agreement that is a “master” agreement plus an operating agreement for each LLC basically functioning as a subsidiary) LLCs are allowed. 605.0201 varies forward 608.405 and 608.407. The Drafting Committee will be revisiting the idea of series LLCs, but not for a couple more years. 605.0901 through 605.0913 apply to foreign LLCs doing business here in Florida. Those provisions are substantially the same as 608. But there are differences from 608 that involve Certificates of Authority and conversions. A change in 605.0910 is that a foreign LLC “may withdraw and cancel its Certificate of Authority,” while 608.511 stated a foreign LLC could not withdraw without obtaining a Certificate of Withdrawal. The other changes are included in 605.0911, 605.0912 and 605.1051. 605.0911 and 605.0912 relate to withdrawals upon conversions, dissolutions or mergers. 605.1051 allows, for the first time under Florida law, domestications of non-US entities if the domestication is allowed under the law of the location of the original formation. 605.1052 through 605.1056 are also new and govern details of domestication. There are several significant differences that should be mentioned. Also, other statutes have been amended, either to make reference to the new 605 or substantive changes to ensure consistency and solve a couple of problems too. A change meant to ensure consistence is the addition of 48.062. Under prior law, service on an LLC was under Chapter 49, the same as a partnership. 16

RES GESTAE | January 2015

Chapter 607, Florida Business Corporation Act, was amended as of January 1, 2014 and then again January 1, 2015 to add references to 605 and then eliminate references to 608 in sections referring to mergers or articles of mergers. The same is true of 617, Florida Not for Profit Corporation Act and 620, Partnership Laws. 621, Professional Service Corporations and Limited Liability Companies, have revisions similar to the above paragraph. In addition, 621.12 adds transitional rules for names and abbreviations and 621.13 adds paragraphs concerning the applicability of 605 and amendments to a Certificate of Organization that would make the organization subject to 605 rather than 621. One of the major differences is the scope of provisions in 605.0105 vs. 608.423. 605 remains a default statute, but 608.423(2) contains six, versus 605.0105(3), which contains 17 non-waivable provisions. One reason for such a large difference is 605.0105 is meant to clarify and better define what can be changed or modified by the operating agreement. The Drafting Committee adopted the non-waivable provisions in RULLCA. As an example, 608.423 provisions regarding the duty of loyalty and care are carried forward to 605 as stated above. However, 605.0105(3) and (4) expands how those duties may be modified, such as shifting specific responsibilities between members and how a transaction that may violate the duty of loyalty can be ratified. 605.0105(3) also adds a list of requirements from other sections that cannot be varied, such as grounds for dissolution under 605.0702 and 605.0204, signing and filing. Throughout 605 there is an expansion of provisions referring to the duties of the members. As an example, 605.04091, Standards of Conduct for Members and Managers, is consistent with 608.4225, but because of some inconsistent court opinions over time, 605.04091(3) adds “willful or intentional misconduct” instead of “intentional misconduct.” 605.0105(5) does not have a corresponding provision of 608. (5) was added to give guidance to the court in making a determination whether any provision is “manifestly unreasonable.” The judge must only use the facts and Continued on page 20

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Art Happenings by Lydia Black, Alliance for the Arts Executive Director ee County is host to numerous arts events throughout the year. From festivals and concerts to exhibits and theater performances, this area offers the public a great variety of amazing events and performances. Don’t miss out on these upcoming arts and cultural events: • Southwest Florida’s Premier Art Festival, ArtFest Fort Myers, Feb. 7 and 8. New to the festival is a Sunday Morning 5K run. To check out all the exciting details visit www. artfestfortmyers.com • Florida Repertory Theatre has a thrilling 17th Season planned for residents and visitors alike! Laugh all the way down the aisle during One Slight Hitch by Lewis Black. For info visit www.floridarep.org • Barbara B. Mann Performing Arts Hall hosts two award-winning musicals, The Book of Mormon and The Phantom of the Opera – in January! They also are home to the Southwest Florida Symphony’s American Masterpiece concert and Gulf Coast Symphony’s concert The Rat Pack. Visit bbmannpah.com • Humorist, storyteller, singer and songwriter Kim Weitkamp, 2014 Storytelling World Award Winner, visits the Alliance for the Arts on January 14 for a one-night-only performance of her latest show A Wandering Mind. Visit www.artinlee.org for more info. • Be tempted at BIG ARTS during their January Juried Exhibit Temptation. Mingle with area artists during their Jan. 23 opening reception. For more info: www.bigarts.org • And don’t forget the Downtown Fort Myers River District hosts ArtWalk on the first Friday of every month and MusicWalk on the third Friday of every month! www.fortmyersartwalk.com

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Continued from page 16 circumstances as of the time the term became a part of the agreement. Conflict of interest is an interesting area of corporate law. 605.04092 does not deviate substantially from 608.4226 but it is differently organized and clarifies some definitions. New are definitions of who may be indirectly a party and when a transaction is fair to an LLC. Other new sections add clarifications to the burden of proof and eliminate ambiguities under 608, such as a transaction must be fair to the LLC for the member to receive liability protection. The threshold question is now fairness. The burden of proof shifts depending upon the manner in which the transaction was approved in the first place. 605 adds completely new concepts to Florida LLC law. One completely new concept is wrongful dissociation. 608 stated a member did not have the right to withdraw unless specifically addressed in the operating agreement or articles of organization. 605.0601 states a member can dissociate at any time. What constitutes wrongful dissociation is included and the corresponding liability is also a part of 605.0601. 605.0602 contains a list of 15 items—all events causing dissociation. Although interest exchanges are not a new concept, the addition of 605.1031, which authorizes them, makes it a new concept to Florida LLC law. For any agreement entered into prior to January 1, 2014, a transition rule was adopted. The

transition rule calls for the provisions to be treated as a merger unless amended to reflect it is truly an interest exchange. To be consistent with the addition of interest exchanges, 605.1006 differs from 608. There has been an addition of provisions, such as conditions for appraisal rights when there has been an interest exchange. Also worth mentioning are a couple of changes involving approval of merger agreement. First, to clear up a provision that has been open to different interpretations, 605.1023 makes it clear that absent any clause in the operating agreement to the contrary, a merger is to be approved by a vote of majorityin-interest of the members rather than a majority vote of the members. Also in 605.1023, prior to a merger all members who have the right to vote on the merger must be given a copy of the merger plan. Under prior law, only a summary of the plan needed to be provided. As stated at the beginning, new Ch. 605 is a major revision from what had been Ch. 608. This article has covered some of those changes. RG Kathryn Pugh graduated from Stetson University College of Law in 1999. Currently, she has her own solo practice in Fort Myers, where she concentrates on family law and small business matters. Prior to beginning her law practice, she worked as a Comptroller, Financial Analyst and Senior Staff Accountant. Kathryn served as the Executive Director of the Lee County Legal Aid Society from 2006 to 2014 where she gained extensive experience in family matters.

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Anne Dalton dedicates 2015 to career fundamentals by Sara Fitzpatrick Comito Photos by Regina Samone Photography Matthew Linde, John Agnew, Aaron Haak, (third row) Carlos Kelly, Keith Upson, Scott Atwood, PJ Scheiner, Dustin Butler, (second row) Sara Fitzpatrick Comito, Kelly Fayer, Linda Fiore, Kim Bocelli, Connie Ramos-Williams (front row) April Bordeaux, Karla Campos-Andersen, Audrey Singleton, Beverly Grady, Stacy Sherman, Anne Dalton

RES GESTAE | January 2015

nowledge of the law, advocacy skills, hard work and customer service are typically regarded as the cornerstones of a successful law practice. Perhaps, but all that and a dollar will get you a cup of coffee—maybe, prices being what they are these days. There’s a yet more essential component to being a good attorney. Professionalism and ethics represent the sine qua non of a rewarding legal career. They’re so fundamental that they’re often considered a foregone conclusion; otherwise, they’re treated with a lot of lip service. New LCBA President Anne Dalton, however, believes the profession and the communities it serves do better when these concepts receive the respect and study they deserve. To that end, she has dedicated 2015 as the year of Professionalism and Ethics. Res Gestae caught up with the busy lawyer, mediator and arbitrator to find out more about her personal connection to her theme and how the LCBA is working to promote the success of its members.

Tell me about your theme for the year. Why did you want to focus on Professionalism and Ethics for 2015?

When you were growing up, who served as an ethical role model?

In the larger sense, all attorneys understand the concepts of professionalism and ethics—at heart, they are the Golden Rule. However, there are many nuances involving our implementation of these concepts in the day-to-day business world. I was looking for a subject that would appeal to all of our local attorneys, whether newly admitted or long-time practitioners. In scheduling a wealth of CLEs on these subjects, with discussions and tips from local Judges and seasoned practitioners who address these issues every day, we are giving real value to membership dollars. In addition, our Chief Judge, Judge Rosman, has asked all of us in the 20th Judicial Circuit to become actively involved in professionalism issues and he is absolutely correct in making this request.

Can you tell me about a defining moment for you personally, when the importance of professionalism and ethics was made clear?

How can professionalism and ethics lead to success in a law career? A lawyer’s reputation is their stock in trade. Professionalism and ethics are two cornerstones of that reputation.

My parents.

When I was in elementary school, my father was the Vice President of Finance for a large Pennsylvania hospital. At that time, the hospital contracted directly with one of the local farms to provide milk to the patients. When my father’s long-time boss died unexpectedly, my father was promoted to his boss’s job. As a result, he was given his boss’s office with all the contents intact. In the desk was the combination to the large safe hidden in a coat closet. When my father opened the safe, he was astonished to find bundles of $20 bills, each neatly secured by a rubber band and each with a scrap of paper annotating the date and amount of that week’s “contribution” to the boss’s Private Milk Fund. In today’s economic times, the money would be the equivalent of over a million dollars. When my Dad took me out to dinner to celebrate my passage of the New York

State Bar, he told me this story for the first time. Of course, I asked him what he did with the money. He looked at me sternly and said every penny was turned over to the hospital’s charity fund. The moral of the story: being ethical means doing the right thing, even if no one but yourself would ever know.

Please describe the groundwork that has been set by Past President John Agnew. How did his year as president and his theme of practice building serve the LCBA and its mission? I have been privileged to work with John for the past four years and can affirm he has brought many positive changes to the LCBA, including expansion of the Executive Council to provide for more inclusiveness. He initiated a survey of the membership to see how we can better serve our attorneys, and implemented the three biggest requests: a better website with capability for electronic signups and advance payment, more local CLEs, and a better organized Lawyer Referral Service. When John and I joined the Executive Council, the Bar was still gripped by the economic downturn. His year’s theme

January 2015 | RES GESTAE

2015 Executive Council: Kelly Fayer, John Agnew, Anne Dalton, Scott Atwood, Dan Endrizal, Beverly Grady, Aaron Haak, Kim Bocelli

of Practice Building has helped all of us to focus on fine-tuning our practices to adjust to current economic realities while not sacrificing professional conduct. This provided real value to membership dollars and was a great springboard to my year’s theme.

How would you describe each of your fellow EC members? What strengths does each one bring to the table? John will be staying on the Board as President Emeritus. He enjoys a challenge and has a cool head, as befits a successful litigator. Scott is an experienced strategic planner, a real 24

RES GESTAE | January 2015

people person, and has a quick, debonair wit to lighten any moment. He also gives us the bigger Florida Bar perspective, as former President of the statewide Young Lawyers Division/Board of Governors. Kelly is a finely nuanced, detail-oriented estate planning attorney who has done yeoman’s service this year as Treasurer. Dan, a former senior intelligence officer in the military and our pro bono champ, is always ready with a properly pithy comment to keep our discussions focused on the forest, not the trees. We will be joined in 2015 by Beverly Grady and Aaron Haak as Members At Large. Beverly is a seasoned professional with

expertise in governmental and land use law and law practice management. She brings those excellent organizational and editing skills to us as the new Editor-inChief of Res Gestae. As our highly capable elected Member At Large, Aaron Haak brings a steady eye and helping hand to our Event Chairs, as well as a finely honed sensitivity to the needs of our litigation bar. The Board is completed by the very able Kim Bocelli as this year’s President of the Young Lawyers. She juggles a more-than-full time business litigation practice with her tireless work on LCBA events and is the poster person for selfless volunteerism.

What strengths do you bring to the table?

Can attorneys focus on professionalism and ethics I’ve been a mediator and arbitrator and still have fun?

for nearly 20 years and have worked as counsel to large and small corporations and governments for nearly 36 years. As such, I bring good organizational skills, creative problem solving, longrange planning skills and the ability to foster a collaborative spirit in a group. I chose to have all the practice chairs and committee chairs and Bar administrative staff on the January cover to show we all are a team (all were invited; several sent their regrets due to scheduling conflicts).

What are the short-term and long-term goals for the LCBA? Short-term goals: provide regular practice-focused CLE opportunities through individual practice sections, plus general ethics and professionalism CLEs prior to each membership meeting. Reduce the cost of the bench-bar dinner and other events to make them more affordable. Long term goals: keep responding to articulated membership needs and desires.

Being ethical and professional feels good. • So yes, learning can be fun, especially when facilitated by your peers or members of the judiciary in a casual setting, and at a reasonable price. It’s even more exciting when you can apply needed CLE credit hours to the disciplined examination of these sometimes nebulous concepts. Be sure to review the comprehensive listing on page 11 of affordable Professionalism and Ethics CLEs taking place throughout the year, and the newly expanded Calendar of Events on page 10 for plenty of fun, educational and social events to help you advance your career and get the most out of 2015, the year of Professionalism and Ethics. RG Volunteering has important intrinsic benefits to both the volunteer and the cause, but it’s also an effective way for the LCBA to impart an image of professionalism to the community it serves. Anne Dalton has lined up the following deserving charities to speak to the membership at select monthly luncheon meetings, which will also feature valuable Professionalism and Ethics CLEs: • January 16 – Alliance for the Arts • February 20 – Clinic for the Rehabilitation of Wildlife (CROW) • April 10 – Primate Rescue • May 1 – TBD • August 21 – Edison Sailing Center • September 18 – Special Equestrians • October 16 – Animal Rescue Center • December 18 – Turtle Time

Practice Section Chairs: Carlos Kely, Keith Upson, Anne Dalton, Matthew Linde, PJ Scheiner, Dustin Butler January 2015 | RES GESTAE

Legal Lens

Jenni and Carlos Cavenago, Mike Corso

Brittney Herman, Michelle Hordinski, Brittany Kennedy Joe Linnehan, Geoff Gentile

Von Ahn Holiday Party Von Ahn Associates Court Reporting held their annual holiday party on Friday, December 5th. There was food, drinks and music provided by “In Recess.”

Rana Holz, Cindy Trammell, Judge James Adams

Rad Sturgis, Ryan O’Halloran, Carlos Cavenago, Peter Kamm

Ann Stevens, Jackie Burrell, Heather Shelton

Craig Ferrante, Jennifer Budreau

Karen Crawford, Doug Mohney and wife, Heather Shelton

Maggie Miller, Scott Hertz, Brittany Kennedy, Brittney Herman

Maggie Miller, Heather Shelton, Jackie Burrell, Lisa Boyd In Recess: Kim Hart, Mike Maxwell, Judge Joe Fuller

RES GESTAE | January 2015

Legal Lens

Kyle Cohen and Douglas Kemp

Anais Bimonte, Amanda Levy-Reis, Karla Campos-Andersen John Agnew

LCBA Luncheon The LCBA Luncheon was held on November 21st and featured CLE: False Claims Act & Whistleblower Primer and The United Way, featured non-profit.

Noel Davies, Kim Bocelli and Bill Merchant

Randy Rosenblum, Bill Wolk

Mary Vlasak Snell, Jeannine Joy

Christina Harris Schwinn, John Agnew

Beverly Grady, Linda Fiore

Connie Ramos-Williams, Bob Shearman Photos courtesy of Jim Jett

Frank Jean, Kelly Fayer

Judge Elizabeth Krier, Scott Atwood January 2015 | RES GESTAE

Community Connection

by Sara Fitzpatrick Comito

“We should remember in our dealings with animals that they are a sacred trust to us… [They] cannot speak for themselves.” This excerpted quote by American abolitionist and author Harriet Beecher Stowe serves as inspiration to Linda Estep in her work as Executive Director with the Clinic for Rehabilitation for Wildlife. The 501(c)3 is known affectionately as CROW by Southwest Floridians, but its rescues are sometimes so compelling they make news around the world. That was the case last April when a fledgling osprey crashLinda Esptep Executive Director of CROW landed on a Sanibel boat. A photo snapped by an employee of the cruising and fishing tour outfit went viral on the social media site Reddit. To the volunteers and staff at CROW who nursed the bird back to seaworthiness, it was just another day at work. CROW’s origins can be traced to 1968, when Sanibel Island resident Shirley Walter came across a royal tern injured by a car. Finding no local services that could offer treatment, Walter carried the bird home. She shared the story with friends, and before long, a group of volunteers came together to form CROW. Five hundred distress calls came in that first year alone, many answered by the late veterinarian Dr. Phyllis Douglass. Today, CROW is one of the country’s premier wildlife hospital and rehabilitation centers and is the only federally 28

RES GESTAE | January 2015

licensed sea turtle rehabilitation facility between Sarasota and the Florida Keys. The facility employs stateof-the-art veterinary care and counts research, education and conservation medicine as integral components of its mission. Conscientious locals know the organization as the go-to whenever an injured wild animal is found, which is happening with greater frequency as populations grow and encroach on wildlife habitats. Worse, Estep suggests, not all humans

Photos from top to bottom: CROW students preparing to release a patient, baby screech owl patient, CROW students release a rehabilitated loggerhead sea turtle, CROW’s biggest annual fundraiser “Taste of the Islands”

Continued on page 30

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Community Connection Continued from page 28 are so caring, as “overall, there appears to be a growing indifference on the part of the public to wildlife conservation and environmental issues.” Human development sets the stage for a collision of worlds—ours and theirs. Roads, buildings, dams and other man-made barriers fragment habitats. Waterway dredging or filling and tree cutting force animals such as gopher tortoises, raccoons, opossums and water birds to travel farther in order to find a food supply, and put them in closer contact with us, which places them in danger. “For example,” said Estep, “in 2013, CROW treated 47 gopher tortoises. To date in 2014, 55 tortoises have been treated. Most of these patients were hit by cars or other vehicles.” Fish hooks and monofilament fishing line have also been responsible for a 23-percent increase in injuries to birds and sea turtles over the past two years. CROW treats 3,500 to 4,000 wildlife patients annually, representing approximately 200 different species. Even with the volume, Estep said, “Each patient has an amazing story to tell.” Consider these few examples: • A hummingbird with his beak stuck in a pool screen • A Florida soft-shelled turtle struck by a car: Unbeknownst to staff, she was carrying eggs that she deposited in a hole she prepared in the soft ground. About two 30

RES GESTAE | January 2015

months after she was released, a rehabber discovered that seven eggs had hatched, and the little turtles had made their way to the surface. All were safely released. • A sandhill crane hit by a car: He was placed in a tall outside cage where he regained his strength and healed his injury at a relaxed pace. • An eastern spotted skunk with his head caught in a Gatorade bottle • A yellow rat snake in distress: An x-ray indicated that the snake had mistaken two golf balls for eggs and had swallowed them. The golf balls were surgically removed and the incision stitched. Antibiotics and pain medication were administered over a six-day period, and then the snake was released. Top photo: a student intern holds a If you find a wild animal in young hawk. Above: Dr. Heather distress call CROW at (239) Barron, Hospital Director. 472-3644, ext. 222 to speak with a first responder 365 days a year from 8 a.m. to 5 p.m. If it is after hospital hours, approach the animal slowly, and throw a large towel over its head or entire body. Quickly transfer the animal to a ventilated box or animal carrier. Keep the container in a quiet, warm, dark room and call CROW in the morning. CROW’s efforts are funded by private donations, memberships, fundraising events, gift store purchases, foundation support and grants. Click on the “How You Can Help” tab at www.crowclinic.org to discover the many ways to support this worthwhile organization through memberships, legacy gifts and volunteering. Volunteers are always needed to help with rescues, rehabilitation, public education and special events. According to Estep, who started as a volunteer while on vacation on Sanibel in the late ‘80s, “When people become a part of this organization, their commitment and dedication are positively overwhelming!” RG

From top left photo down: CROW students evaluate an injured gopher tortoise, Dr. Barron reviews the x-ray of an injured double crested cormorant, judging of the food entries at Taste of the Islands, CROW student working in the raccoon enclosure, CROW students release rehabilitated river otters.

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The Dish by Sara Fitzpatrick Comito

She turns off one darkened road and onto another, then wends her way furtively around the shuttered industrial complex. As the fog swirls in the headlights, a suggestion of moon reveals itself on the edge of cloud. Her eyes dart to the rearview as she pats the case of bills on the passenger seat. The loading bays will be open in the back. That’s where the meet will happen under the cover of this long-awaited night. Finally, she’ll get the gold she has coming to her from the company, and then she’s going to retire. OK, I’m supposed to be writing another column about “where to meet and eat,” not some hackneyed noir fiction. Sorry about that! Writers do get to daydreaming now and then. So, there’s no heist, but there is gold, and a “meet” of sorts, and a “company” and a real industrial park off a desolate road. But no criminal mastermind and no plan to retire, except as it relates to my pillow a bit later. What there is: beer. Great, towering stainless steel tanks of the cold stuff. At Fort Myers Brewing Company, a pint of Gateway Gold awaits me, but that’s not why I need the cash, which, by the way, does not in any way represent ill-gotten gains. FMBC does, in fact, take credit cards. The Nosh Truck is why. Because if you want French fries drenched in Cheez Whiz, Sriracha, Korean barbeque and cilantro on a Friday night—and who doesn’t?—you’re 32

RES GESTAE | January 2015

going to need cash. The protagonist and her co-conspirator didn’t do a goodenough job of casing the joint ahead of time. However, the 7/11 just up the road on Commerce Lakes Drive has an ATM that didn’t charge me a fee, which left me feeling both puzzled and awed at the majesty that apparently is Gateway. The “meet” consists of scores of people who have already discovered the joys of hanging out in the back of a building drinking beer. Signs of a misspent youth, some would call it. I call it brilliant. When you’re operating a brewery that Beer Advocate rates 93 overall, people will come to you. A lot of people. On this particular night, the truck bays were indeed open, revealing a glimpse of those beautiful, shiny beer tanks and two spirited games of cornhole. A well lit tasting room had lines out the door, with folks eager to try one of many styles of fresh, “award-winning craft ales brewed seven barrels at a time.” I found the Caloosahatchee

The Dish Kolsch to be crisp, pleasingly bitter and a fitting accompaniment to an indulgent Cuban sandwich boasting the yummiest sweet pickle. For the higheralcohol ales, consider purchasing a growler (pictured middle left) to take home, but have a free taste of anything on the board first. I am a hops fanatic, and the OYA is delicious, but I’ll leave it up to you to find out what cheeky phrase the abbreviation stands for. (Hint: it would be a natural consequence of drinking too much of this citra-hopped double IPA, which packs a whopping 9.2-percent alcohol by volume). In keeping with the industrial environs, seating fabricated of reclaimed wooden pallets spans a long sidewalk area. It was still a good thing I had a pair of camping chairs in my trunk, as it was standing room only at around 8 p.m. According to Scott Sopher of the Nosh Truck, the place had even cleared out a bit from earlier, when he sold out of many of his offerings. FMBC is only one of many stops along the Nosh Truck’s variable weekly route. An active Twitter and Facebook ac count broadcast locations, s p e c i a l events, menu offerings and occasional pleas for the services of a mechanic. River District frequenters have had the chance to sample Scott’s delicacies for years now at the Thursday Farmer’s Market in Centennial Park, which is where the folks at FMBC

originally approached him about their plans to open a brewery a year ago. Menu items also change frequently, f r o m chili chicken pitas to brisket and soft shell crab po’ boys to gumbo and the popular Banh Mi, a The Nosh Truck crew Thai-style sandwich (pictured bottom left with a strong blonde brew). The beer menu changes too, and the calendar of fun events is always being updated (including the beer mile—drink a beer, run a quarter mile, repeat three times). There’s a whole fleet of other food trucks that take turns feeding the crowd assembled behind this warehouse space on select nights each week, including one best known for its cheeseburger served on a glazed donut. Bring your chair, just in case, and when your passenger inquires, “Are you sure we’re in the right place?” just smile beatifically, glance at the rearview, and say something soothing like “I wouldn’t even tie my shoes without a backup plan.” RG Fort Myers Brewing Company 12811 Commerce Lakes Dr., Suite 27 – 28, Fort Myers (239) 313-6576 www.facebook.com/FMBrew Tasting room open Thurs 4 -10 p.m., Fri 3 – 10 p.m., Sat noon – 1 p.m. and Sun Noon -10 p.m. The Nosh Truck (239) 248-0715 Twitter: @noshtruck | Facebook: The Nosh Truck Currently at FMBC: Thursday (Burger Night) 4 – 9 p.m. Friday Night 4 – 9 p.m. Cash only! 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.

January 2015 | RES GESTAE

Excellence in Safety and Quality Gets Recognized By Jim Nathan, President - Lee Memorial Health System

Delivering highly reliable and exceptional patient centered care is a key strategic goal of Lee Memorial Health System. We aim to be among the safest and highest quality health care systems in the nation. Thank you for the opportunity to share some recent honors, awards and recognitions which reinforce impressive progress and successes. Achieving awards is a pleasure and we love celebrating the excellent Jim Nathan work of our care team, but what is most important is how these recognitions can help you make informed healthcare decisions. Until recently, it was very difficult to compare the quality of a doctor or hospital, but now there are several objective, third-party institutions who analyze patient safety and clinical outcome data and release the information as clinical excellence awards. These awards tell you which hospitals offer better patient safety, higher quality care and a lower risk of complications. They help you identify hospitals who achieve superior clinical outcomes for specific conditions and procedures. They also can tell you which top-performing hospitals stand out among the rest for overall clinical excellence across a broad spectrum of care.

One of the leading hospital rating organizations is Healthgrades, which independently analyzes more than 4,500 hospitals nationwide. Earlier this year they announced Lee Memorial Hospital and HealthPark Medical Center as among the Top 50 hospitals in the nation and more recently recognized LMHS hospitals in 39 areas for superior clinical outcomes, including these highlights: • Five-Star recipient for the treatment of heart failure 4 years in a row – Cape Coral Hospital • Five-Star recipient for the treatment of heart attack 2 years in a row – Cape Coral Hospital

RES GESTAE | January 2015

• Ranked one of Healthgrades America’s 100 Best Hospitals for Stroke Care in 2014 – Gulf Coast Medical Center • Ranked among the top 10% in the nation for overall pulmonary services 8 years in a row – Gulf Coast Medical Center • Ranked among the top 5% in the nation for cardiology services 2 years in a row – HealthPark Medical Center • Ranked among the top 5% in the nation for joint replacement 4 years in a row – Lee Memorial Hospital • Named Among the Top 5% in the Nation for Women’s Health in 2014 – Lee Memorial Hospital/HealthPark Medical Center In October, Lee Memorial Health System received two major statewide recognitions from the Florida Hospital Association: one for Leadership in Quality and Patient Safety and the other for Best Hospital Workplace. The Patient Safety award was for our impressive SafeLee Safety Coach program, which includes over 600 LMHS staff members who are trained to serve as communicators, observers, role models, educators, storytellers and partners by placing safety at the forefront of everything we do—from transparent reporting to standardized safety programs. The results show every day and night. FHA’s Best Hospital Workplace statewide award to LMHS was for engaging our employees in an organizational culture of caring, quality and safety, which is the foundation for great patient experiences. In fact, we are at the 96th percentile nationally for employee engagement among hospital employees. Two other recent awards worth noting is a Five-Star Rating for HealthPark Care & Rehabilitation Center from the Centers for Medicare & Medicaid Services (CMS) and the Golisano Children’s Hospital of Southwest Florida received the 2014 National Research Corporation Path to Excellence Award as the best performing children’s hospital in delivering excellent patient experiences among 109 children’s hospitals in the nation. We are honored to earn these special recognitions and awards. Lee Memorial Health System has made a deliberate effort to create an organizational culture that is safe and supportive, while continuously improving and implementing practices that support delivering the highest value to patients by balancing quality, cost and access. These recognitions are a demonstration that we are getting it right. RG

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On the Bench Hon. Robert Branning “Busy, very busy” is how Judge Robert Branning characterized life as he geared up for his judicial term with the Twentieth Judicial Circuit, effective the first of this month. “While preparing to take the bench, I continued to advocate for my clients and make certain that their interests were protected,” he said in an email between sessions of a diversity training program for Florida judges. The pace of life was familiar, even as its trajectory drastically changed course on a couple of occasions. Although a handsome number, the 44.58% of the vote he garnered as a judiciary candidate during the primary election last August was not enough to win the circuit bench. Then came a welcome surprise in the form of a phone call from Governor Scott. “My family and I worked extremely hard during the campaign, and I am very proud of those efforts,” Judge Branning said. “When the appointment opportunity came along, I worked just as hard at preparing for the interviews and remained hopeful that I would be fortunate enough to receive the appointment.” Having made good on those hopes, Judge Branning fills the vacancy created by the retirement of Judge Mark Steinbeck. His aspirations arose while practicing before the judiciary as an attorney in private practice for the last 15 years, and as a local assistant state attorney before that. He has also been an adjunct professor at Southwest Florida College for the last couple of years, a position that has given him valuable perspective about the current state of affairs in civics education. “I know there’s a disconnect with the general public about what happens in court and the mystery about how decisions are made. I want to bridge that gap and take this opportunity to educate the public about the law and my decision making.” At press time, the judge didn’t yet know what docket he would be assigned. “Wherever I am needed, that’s where I’ll go,” he said. Regardless, there’s one place he’ll always be needed. “My family is everything, so I look forward to any time my wife and I have together with our children. Our kids are four and two, and they’re at an age where it’s a lot of fun to go to parks or the zoo on the weekends.”

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From the Bar Beverly Grady, Esq. Beverly Grady was always interested in the law, and chose “attorney” as her middle school career project. “After a law school tour, interview of an attorney and lots of research, I realized that it meant 11 more years in school, which seemed a whole lifetime.” After graduating from college, she became a teacher. Two years into that career, she revisited her original aspirations and decided to go to law school. Grady was raised in Punxsutawney, Pennsylvania, but moved to Lee County so long ago that she can almost claim to be a native (her husband, Bruce, is the real deal, having gotten his start at Lee Memorial Hospital). Before that, her family enjoyed a Florida escape from official groundhog country, during which she enjoyed the ferry ride to Sanibel Island. Today, a causeway provides passage by car to the island, a structure that is emblematic of residents’ and visitors’ changing relationship with the resources of Southwest Florida, and the Roetzel & Andress attorney is engaged with the very issues stemming from those changes. After receiving her law degree and Ohio Bar license, she moved immediately to Florida— “for all the same reasons everyone else comes here,” she said—and took a position as an assistant county attorney for Lee County. It provided an introduction to government issues including land use, permitting, water resources, real estate, transportation, utilities and growth management problems. Grady is now Board Certified in City, County & Local Government Law. She describes it as a positive practice area, in that she’s able to work in areas critical to our region and help people solve problems and obtain permits. “It is a practice area that is always changing, interesting and challenging,” she affirmed. She has also been involved with many agencies to help ensure the economic development that is so critical to our area is planned and implemented in such a way as to protect the quality of life that draws so many to the area. She served on the Governor’s Commission on the Everglades and thereafter 11 years on the Water Resource Advisory Commission of the South Florida Water Management District. “Pressing issues in this practice area include sustainable community issues, FEMA issues and what will our communities look like in the future,” she explained.

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RES GESTAE | January 2015

From the Bar Margaret White-Small, Esq. As a child, Margaret White-Small admired her grandfather, an attorney, judge and prosecutor in the little town of Grant City, Missouri, and decided to follow in his footsteps. Whereas he did it by taking on an extended apprenticeship in a lawyer’s office before going on to pass the bar exam—a mostly antiquated practice known as “reading law”—she pursued the modern law school track. Her journalist mother’s love of writing also rubbed off on her along the way, and even her choice of schools ran in the family. Having grown up in Chicago, White-Small attended law school with her husband Doug at the University of Missouri-Columbia, where her mother had attended journalism school and her daughter also graduated several years ago. Then White-Small found her niche after being hired by the Fifth District Court of Appeal in Illinois, where she could combine her enthusiasm for both the written word and the intellectual challenge of complex legal matters. She moved to Florida in 1986 and landed a position as a staff attorney with Judge Monterey Campbell of the Second DCA. “I loved it so much that I stayed for 22 years,” she recalled. “When I left the court in 2008, I knew that whatever I did next would have to involve legal research and writing. That’s why I established my practice of providing legal research and writing services to other lawyers.” White-Small specializes in the types of tasks many other attorneys consider onerous or overwhelming. “Most trial lawyers do not have a lot of appellate experience,” she explained, “nor do they have the time or perhaps the desire to do the kind of in-depth, thorough research that a case sometimes requires.” Her typical client is a lawyer who has a small or solo practice and need occasional research, appellate assistance, or litigation support services. In short, White-Small sells the ability to present a case in court more persuasively. She and her husband have two grown children who live in New York and Los Angeles. “We joke that they went as far away from us as they could while still staying in the continental U.S.” When not a work, White-Small is either jogging, going to the beach, cooking or playing with her Cavalier spaniel, Harry.

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Save the Date

Lee County Bar Association 26th Annual Bench Bar Dinner March 7, 2015 6 - 10pm Cristof’s on McGregor 10231 McGregor Blvd, Fort Myers Business Attire Requested

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RES GESTAE | January 2015

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January 2015 | RES GESTAE

Legal Briefs Abraham named SABA Leadership Forum secretary Sheba Abraham was appointed secretary of the Florida Chapter of the South Asian Bar Association, (SABA) at its Florida Diversity Leadership Forum and Annual Meeting Nov. 14 at the Cooley Law School’s Tampa campus. The forum featured presentations from accomplished and diverse judges, law professors and practitioners on recent trends in criminal law, as well as issues related to diversity in the practice of law in Florida. Abraham serves on the Board of Directors of SABA’s Florida Chapter. The South Asian Bar Association of North America (SABA North America, formerly North American South Asian Bar Association or NASABA) provides a vital link between South Asian lawyers and the South Asian community across North America. As a bar association, SABA North America affords South Asian lawyers across the continent a recognized forum for professional growth and advancement. Abraham practices personal injury law and criminal defense at Goldberg, Racila, D’Alessandro & Noone.

Bartley promoted to partner at Kelley Kronenberg Amanda Mitteer Bartley has been promoted to partner at Kelley Kronenberg effective January 1, 2015. Based in the national firm’s Fort Myers office, Bartley focuses her practice on Workers’ Compensation litigation defense on behalf of insurance companies and employers. Bartley was also recently elected to serve on The Florida Bar’s Twentieth Circuit Grievance Committee. In that capacity, she will be part of the group responsible for continuing the investigation of possible lawyer misconduct referred by Bar discipline attorneys. She is currently chair of the Lee County Bar Association Social Committee and a past president of the Young Lawyers Division, and she is involved with the Calusa American Inn of Court. Bartley received her bachelor’s degree, with honors, from the University of Vermont and her law degree from the University of New Hampshire, Franklin Pierce Law Center.

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RES GESTAE | January 2015

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Legal Briefs Caruthers joins St. Surin & Caruthers, P.A. Janese Caruthers has joined St. Surin & Caruthers, P.A. as a partner. She focuses her practice on criminal defense and family law. Caruthers has represented thousands of clients in various criminal matters. In 2010, she had the most felony jury trials of all assistant public defenders in the 20th Judicial Circuit. Her defense of a client in a high-profile murder case was featured on national and local news including Good Morning America, ESPN, Miami Herald and the Washington Post. In April of 2013, Caruthers appeared on the nationally syndicated Dr. Phil Show to discuss her victory in a Stand Your Ground motion where all charges were dismissed against her client. Caruthers was recently appointed a member of the National Bar Association’s Police Brutality Commission where she helps train attorneys about search and seizure issues, and educate citizens about their rights and how to litigate claims against the police.

Giordano named bankruptcy association president Paul A. Giordano was recently sworn in as president of the Southwest Florida Bankruptcy Professional Association (SWFBPA). He previously served a vice president and secretary, and will serve a one-year term. The SWFBPA is a voluntary group of attorneys, judges, paralegals, and other interested members. The group meets and communicates on a regular basis, with the goal of keeping members informed of current issues, and raising new ideas to streamline the bankruptcy process for the court, attorneys and their clients. The Roetzel attorney handles a variety of business and commercial litigation, with a special focus on bankruptcy and creditors’ rights, partnership disputes, commercial foreclosures, contract and corporate disputes, and general and professional liability lawsuits. He also has experience in insurance coverage litigation, and jury and non-jury trial practice.

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Legal Briefs Schwinn facilitates at SWFL Community Foundation iLab Christina Harris Schwinn, partner at the Pavese Law Firm, recently served as a facilitator for a Southwest Florida Community Foundation iLab workshop focused on “Designing Collaborative Projects.” The daylong workshop brought together nonprofit organizations interested in learning about the Robert Rauschenberg Foundation grant process, and exposed them to ideas and best practices. The iLab event allowed participants to learn and practice collaborative project design techniques that make agencies more attractive to funders and more effective in their missions. Topics on the agenda included a collective goal-making activity, asset-based community development and appreciative program design, and collaborative program design. “We hope to provide nonprofit agencies with practical wisdom and advice on how to better design and apply for collaborative grants, not to mention do great collaborative work in the region,” said Dave Fleming, chief strategic officer for the Southwest Florida Community Foundation. ..

The Florida Bar Foundation seeks director applicants The Florida Bar Foundation is seeking applicants for six seats on its board of directors for terms starting July 2015 under the Florida Supreme Court-approved governance plan. The plan calls for 18 members of the Bar Foundation board to be selected in equal portions by the Florida Supreme Court, The Florida Bar Board of Governors and the board of directors of the Bar Foundation.

be found at www.flabarfndn.org.

Six of the 18 at-large seats will be filled for three-year terms beginning July 1, 2015. Completed applications must be received by the Foundation by Feb. 2, 2015. Information and the application can

Since 1981, the Foundation has been the administrator of the Florida Supreme Court’s Interest on Trust Accounts (IOTA) Program. The Foundation board awards all grants, oversees the Foundation’s fundraising program, sets investment policies, Foundation policies generally, and adopts the annual operating budget.

RES GESTAE | January 2015

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