Issuu

DECEMBER 2016

JUSTICE FRED LEWIS IS COMING TO TOWN Professionalism: The Supreme Court knows who's been naughty or nice

THE OFFICIAL AWARD-WINNING PUBLICATION OF THE LEE COUNTY BAR ASSOCIATION

Contents On the cover: Justice Fred Lewis Photo credit: Original artwork by Artist Austin Cotton. Cover design by April Bordeaux

22 features 18 Your Southwest Florida

holiday wish list

22 An obligation to the future Justice Fred Lewis, professionalism champion by Sara Fitzpatrick Comito

30 departments 6 Letter from the President

28 Legal Lens

by Scott Atwood, Esq.

Letter from the Executive 29 In Memoriam Ron Buschbom Director

by David Seitz

LCBA Annual Family Bar-B-Que

30 The Dish

10 Calendar of Events

12 Ethically Speaking

Shangri-La Springs

32 On the Bench

by Henry Lee Paul, Esq.

Honorable Morris Silberman

14 General Civil and Business 34 From the Bar

Litigation Section

Carlos Cavenago, III, Esq.

by Austin Turner, Esq.

16 Legal Lens

Pro Bono Awards

19 New Members 20 Legal Lens

Veterans' Legal Clinic

26 Legal Lens

LCBA Annual Family Bar-B-Que

RES GESTAE | DECEMBER 2016

36 From the Bar

Leilani Martinez, Esq.

38 100 Club 40 In the News

News and Happenings

AD DIRECTORY Boyle & Leonard, P.A. Brad Jessen, Edward Jones Business Observer Calvo & Calvo Attorneys at Law Compass Law Firm CONRIC PR & Marketing | Publishing Copy Lady Demine Immigration Law Firm Denise Kennedy Denise L. Wheeler Dial A Nurse Inc. Donna Tisch Edison National Bank ENCORE Bank Endeavor Workspaces Experience Real Estate Group, LLC FineMark National Bank Fort Myers Court Reporting Garvin Law Firm Gerald W. Pierce, B.C.S. Get Smart Bail Bonds Geraghty Mediation Henderson, Franklin, Starnes & Holt, P.A. Hotel Indigo Joe Viacava Law Kim Patrick Hart Kushner & Kushner Attorneys Law Firm of Scott T. Moorey Law Offices of David L. Orosz Lee County Legal Aid Society Leonard P. Reina Leslea Ellis, LLC Levins & Associates, LLC Livingston Loeffler, P.A. Martin Law Firm Massie & Reilly CPAs, PLLC McHale, P.A. Merit Court Reporting, Inc. Molloy Law, LLC Musca Law Office, Inc. Panther Printing Patterson Eskin & Ball Safeguard Shredding Sanibel Captiva Community Bank Simon M. Harrison Spivey Law Firm, P.A. Strayhorn & Persons The North Law Firm, P.A. The Place on First Veranda Restaurant Vantage Construction Services Von Ahn & Associates Webb & Scarmozino William DeForest Thompson Jr., LLC

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Letter from the President This is my last message as President of the Lee County Bar. I hope you found something this year that interested you, engaged you, pulled you into the fray. We tried to diversify our offerings, and so added a number of new events. A shrimp boil. An overnight trip to Key West. A craft beer festival. A black-tie event. A multi-part outreach program for foster children (the “Try-athalon”). We even created a Bar Foundation that will be focused on charitable work and fundraising. There’s always room for improvement, and I know Kelly’s team will run with next year's programming. We simply could not have gotten where we are today without the untiring efforts of our many volunteers. First and foremost are my kids Caroline and Laura, who became regulars at the events this year. Little did they know when the year began that they would soon be babysitters and bounce house attendants. My fiancé and LCBA member Kristalyn Loson put up with the cranky Scott, and was always there when needed. Other than those who actually had no choice but to tolerate me, I want to thank the people who stepped up to the plate and volunteered countless hours to serve on the Executive Council: Kelly Fayer, Dan Endrizal, Anne Dalton, Spencer Cordell, John Webb, Shannon Puopolo, Scot Goldberg, Tom Coleman and Jenna Persons. What a pleasure to work with these bright, dedicated people. To my staff David and Lisa, we couldn’t do what we do without you two. Our practice Chairs and the YLD brought the sections to the next level, holding regular meetings and providing plenty of CLE opportunities. The YLD has never been so active, both with its members and with the community. I’d like to take particular note of the special gala committee, chaired by Danielle Butler, which knocked it out the park. If you missed the gala, you missed something special. Please come by the Veranda on December 15 at 6:00 for our Holiday Party. Justice Lewis and many of our judges will be stopping by, so please come and let me thank you personally for being a member of the Lee County Bar. I can’t thank you enough for entrusting me with the leadership of this organization. I learned a lot and hope you feel my team left us in a good place for Kelly’s team next year. It truly has been an honor. Thank you.

LEE COUNTY BAR ASSOCIATION ADMINISTRATION

Executive Director - David Seitz Administrative Coordinator ~ Lisa Poulin

EXECUTIVE COUNCIL President ~ Scott Atwood, Esq. Vice-President ~ Kelly Fayer, Esq. Secretary ~ Daniel Endrizal, Esq. Treasurer ~ John Webb, Esq. Board Members: Spencer Cordell, Esq., Jenna Persons, Esq. Scot Goldberg, Esq., Shannon Puopolo, Esq. President Emeritus ~ Anne Dalton, Esq. YLD President ~ Thomas Coleman, Esq.

COMMITTEES HISTORY E. Bruce Strayhorn, Esq. & Jenna Persons, Esq. LAW RELATED EDUCATION T. Rankin Terry, Esq. LAW WEEK Hon. John S. Carlin MEMBERSHIP Theresa Daniels, Esq. MOCK TRIAL Indera DeMine, Esq. PRO BONO Mary A. Cosmo, Esq.

PRACTICE SECTION CHAIRS ALTERNATIVE DISPUTE RESOLUTION Anne Dalton, Esq. & Bill Merchant, Esq. APPELLATE LAW Laura Lee, Esq. CRIMINAL LAW Marisa Boysen, Esq. & Stephanie Russell, Esq. FAMILY LAW Dustin Butler, Esq. & Ryan O’Halloran, Esq. GENERAL CIVIL & BUSINESS LITIGATION George Knott, Esq.. & Carlos Kelly, Esq. LAND USE & GOVERNMENTAL LAW Neysa Borkert, Esq. & Amanda Brock, Esq. REAL PROPERTY, PROBATE & TRUST LAW Kenneth Kemp, Esq. & Matthew Linde, Esq. SOLO AND SMALL PRACTICE SECTION Jason Gunter, Esq. & Conor Foley, Esq.

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RES GESTAE | DECEMBER 2016

TORT LITIGATION Preston John (PJ) Scheiner, Esq.

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Letter from the Executive Director I hope everyone had a wonderful Thanksgiving. Speaking as a lifelong Florida resident, this is certainly the time of year to be thankful. The temperatures are dropping and the license plates are already starting to change from their summer whites to the yellows, blues, and reds of Florida “winter.” I want to thank everyone who contributed to the Scott Atwood Charity Dunk Tank at the November Bar-B-Q. Watching his own daughter drop him into that murky tank was even more satisfying than the perfectly smoked brisket. I hope you will join us for more fun at the 2016 LCBA Holiday Party at the Veranda on December 15th starting at 6 p.m. There will be good food and drink, and possibly the distribution of some awards to deserving members of the LCBA. I would like to thank the 2016 Executive Council, fearlessly led by president Scott Atwood. Having served on organization boards myself, I know how trying it can be to lead an organization. In the beginning the year seems so long, and by the end if feels far too short. If you see Kelly Fayer, Dan Endrizal, John Webb, Jenna Persons, Spencer Cordell, Tom Coleman, Shannon Puopolo, Scot Goldberg, or Anne Dalton, thank them for taking the time out of their lives to help steer this boat. By the time you read this, the votes will be in and counted for the 2017 Member at Large seats on the Executive Council, and the new EC will be ready to be inducted at our January 20th member meeting. The board and I appreciate the candidates that threw their hats in the ring, as well as everyone who participated by submitting their ballots.

SERVING THE CITIZENS AND LEGAL COMMUNITY OF LEE COUNTY SINCE 1949

239.334.0047 resgestae@leebar.org

Staff Box PUBLISHER Connie Ramos-Williams 239.690.9840 ASSOCIATE EDITOR Sara Fitzpatrick Comito CREATIVE DIRECTOR April Bordeaux ADVERTISING DIRECTOR Linda Fiore 239.690.9840 CONTRIBUTING WRITERS Scott Atwood, Esq. David A. Seitz Henry Lee Paul, Esq. Austin Turner, Esq. Sara Fitpatrick Comito BILLING INQUIRIES 239.334.0047 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.

Speaking about 2017, please navigate to leebar.org and renew your Lee County Bar Association Membership before the end of the year. We have so many great events planned already, it would be a shame to miss out. If your firm is not one of the “100 Club” with 100 percent participation, why not? Are you a member of the LCBA Lawyer Referral Service? With so many great events and programs, we also need members to volunteer their time. Consider participating in a legal clinic or Mock Trial next year, or joining a committee and helping organize an event. As always, my door’s open, my email is dseitz@leebar.org and I’m looking forward to working with you!

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.

David A. Seitz, Executive Director DSeitz@leebar.org | 239.334.0047

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RES GESTAE | DECEMBER 2016

Copyright© 2016. 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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Calendar of Events December 9

Criminal Law Practice Section Meeting Noon – 1 p.m., Larry’s Lunch Box, 2200 MLK Blvd., Fort Myers. Please call or fax your lunch order a day before the meeting to Larry’s. Phone: (239) 208-4035 or fax: (239)208-4278. No registration required.

December 15

Lee County Bar Association Annual Holiday Party

6 – 8 p.m., The Veranda Courtyard, 2122 Second St., Fort Myers. Register online at www.leebar.org.

December 16

Educational Seminar on Professionalism in Florida Courts/Ethics

10 a.m. – 2 p.m., Crowne Plaza, 13051 Bell Tower Dr., Fort Myers. Ita M. Neymotin Regional Counsel, Second District Court of Appeal, Henry Lee Paul, Ex Officio member of the Supreme Court Commission on professionalism, and Lee County Bar Association present: The Honorable Supreme Court Justice R. Fred Lewis as our guest speaker.

CLE and CJE credit pending. LCBA members $30; judges and magistrates $25; non-members $35. Register online at www.leebar.org.

December 24

Holidays without Hunger

9 – 11 a.m., Harborside Convention Center. Every year Meals of Hope descends on Harborside to put together as many nutritious meals as ingredients allow to help our hungry neighbors in Southwest Florida. Join other members of the LCBA, Rotary, Kiwanis, YMCA and sports teams to try to make sure no one goes hungry this holiday season. All ages welcome. Check-in starts at 8 a.m.

January 20

Member Meeting – 2017 Executive Council induction

Noon – 1:30 p.m., Sidney & Berne Davis Art Center. We will be inducting the 2017 Executive Council, as well as the new board for the Young Lawyers Division. $25 for members, $30 nonmembers. Register at leebar.org.

February 3 – 4

Lee County Mock Trial Competition

Contact Indera DeMine to volunteer

February 15

2017 Law Day for Lee Co. Students

February 17

LCBA Random Acts of Kindness Day

Best wishes f a wonderful holiday season and a Happy New Year!

February 24

LCBA Member Meeting (Panel on Children’s Issues)

February 24 – 26

20th Circuit Mock Trial Competitions hosted in Lee County

Contact Indera DeMine to volunteer

Some dates for 2016 Section Meetings have not been confirmed- Check our website for details! Visit us online at leebar.org to see the entire LCBA Annual Calendar. You can conveniently RSVP for upcoming events. Would You Like to Submit an Event? Email your event submission to resgestae@leebar.org

Thank You to our Annual Sponsors for 2016

It is the policy of the Lee County Bar Association to hold meetings only in those facilities that do not discriminate on the basis of race, gender, sexual orientation, national origin, physical or mental disability or religion. The Association will engage in a good-faith interactive process with any employee, prospective employee, member or invitee to determine if a reasonable accommodation is needed and will make reasonable efforts to provide such accommodations. Any requests for accommodation should be directed to the Executive Director of the Lee County Bar Association, David Seitz at info@leebar.org or admin@leebar.org or (239) 334-0047.

RES GESTAE | DECEMBER 2016

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Ethically Speaking

Supreme Court adopts new rule comments regarding technology and competence – Requires three CLE hours in technology

By Henry Lee Paul, Esq.

The Supreme Court amended the comments to Rule 4-1.1 (Competence) to include competence in technology as an element of overall competence in the practice of law. Additionally, the Court amended Rule 6-10.3 (Minimum CLE Standards) to increase the total number of CLE credits required during a reporting period from 30 to 33 hours. Three of the 33 hours will now be required to provide credit for technology. Supreme Court opinion 16-574 adopting these amendments was issued on September 29, 2016. The amendments will become effective on January 1, 2017. This is the first increase in CLE requirements since mandatory CLE was first established in 1987. This increase in the CLE requirement was encouraged by a Vision 2016 Commission study that revealed Florida had one of the lowest requirements in the nation. Only six other states have a reporting requirement of 30 hours or less. The amendment to Rule 4-1.1 comments now requires that in order to maintain the requisite knowledge and skill, a lawyer should keep abreast of “….the benefits and risks associated with relevant technology…” In adopting this amendment, the Supreme Court has endorsed the standard as stated in the comments to ABA Model Rule 1.1. The amendment also is consistent with the previously stated position of The

RES GESTAE | DECEMBER 2016

Florida Bar. In Ethics Opinions 06-2 and 10-2, The Florida Bar took the position that competence requires the protection of confidentiality of electronically stored files and electronic communications. The Supreme Court further amended the comment to Rule 4-1.1 to require a lawyer to retain a “non-lawyer advisor” if necessary to practice with technological competence. This provision was recommended by The Florida Bar Vision 2016 Commission and goes beyond the provisions of the ABA Model Rule comments. A Florida lawyer must be proactive in order to competently handle whatever technology issues may be encountered in the practice of law. In adopting the new requirement of three CLE hours in technology, the Court has recognized that the practice of law is inherently intertwined with technology. All lawyers will now have direct exposure to modern technology through the CLE requirement. The ABA Commission on Ethics 20/20 recognized that technology is dramatically changing the practice of law. The Introduction and Overview to the Commission recommendations stated: “…technology has irrevocably changed and continues to alter the practice of law in fundamental ways. Legal work can be, and is, more easily disaggregated…. Lawyers must understand technology in order to provide clients with the

competent and cost-effective services that they expect and deserve.” Florida has 12 law schools and over 104,000 members of The Florida Bar. Competitors such as Legal Zoom and AVVO are challenging the traditional practice of law. In this environment, it is certain that the impact of technology will continue create dramatic change in the practice of law. The Court and The Florida Bar have a difficult challenge in trying to keep regulation of the practice of law up to date with the fast pace of technological innovations. In adopting the amendments regarding technological competence, the Court has taken an important step to keep the profession current with the reality of today. 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. Paul is also an ex officio member of the Supreme Court Commission on Professionalism and a member of Board of Governors Standing Committee on Professionalism.

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General Civil and Business Litigation Section

NEW FORECLOSURE CASE MAY LEAD TO LESS PARTICIPATION AND GREATER RISK FOR REAL ESTATE INVESTORS By Austin Turner, Esq.

ecently, the Fourth District Court of Appeal issued an opinion in a case called Ober v. Town of Lauderdale-by-the-Sea which may have broad implications on Florida’s foreclosure process and negatively impact investor interests in distressed real estate. The crux of the issue in Ober concerned the application of Florida’s lis pendens statute, section 48.23, Florida Statutes, to liens placed on property between a final judgment of foreclosure and the judicial sale. The genesis of the case began in 2007, when a lis pendens was recorded on a property as part of a foreclosure proceeding against a homeowner. In 2008, a bank obtained a final judgment of foreclosure on the property. Between July 2009 and October 2011, the Town of Lauderdale-by-the-Sea (the “Town”) recorded seven liens on the property, all stemming from violations which occurred after the final judgment was entered. Thereafter, a real estate investor purchased the property at a foreclosure sale on September 27, 2012, and a certificate of title was issued by the clerk. Three additional liens were later imposed by the Town. In an attempt to strike the liens against his

RES GESTAE | DECEMBER 2016

property, the real estate investor filed an action to quiet title. The Town responded with counterclaims to foreclose all ten code enforcement liens and both parties moved for summary judgment. In granting summary judgment in favor of the Town, the trial court entered a final judgment of foreclosure on the ten liens. On appeal, the Fourth District was faced with determining the operative “shut off” date for the effectiveness of the lis pendens under section 48.23(1)(d), which itself did not provide an end date. The Town argued that the lis pendens only applied to liens that existed or accrued prior to the date of final judgment, and the owner asserted that the lis pendens continued to the date of the judicial sale, which in this instance was over four years after the final judgment of foreclosure. In an effort to avoid an “absurd result” and to discern which of these dates was intended by the legislature when deciding when an “action” ceases or terminates under section 48.23(1)(d), the Fourth District held that “a lis pendens bars liens only through final judgment, and does not affect the validity of liens after that date, even if they are before the actual sale of the property.” Accordingly, the court concluded that the statute serves to

discharge liens that exist or arise prior to the final judgment of foreclosure, but does not affect liens that accrue after that date. Given Florida’s lis pendens statute does not discharge liens that accrue during this “limbo” period, it is now more essential than ever for interested real estate investors to seek assistance with due diligence in order to reveal whether any code enforcement violations or liens have been placed on the property after final judgment of foreclosure. Moving forward, those feeling apprehensive after Ober may now elect to place lower bids at judicial sales or even avoid participation in the foreclosure process altogether. RG

Austin Turner concentrates in land use and environmental law at Henderson, Franklin, Starnes & Holt, P.A. He is a Real Estate Investment Society and Lee Building Industry Association member, and serves on the Management Committee for the Southwest Florida District Council of the Urban Land Institute. He can be reached at austin.turner@henlaw.com.

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Legal Lens

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Pro Bono Awards Florida Rural Legal Services and LCBA honored lawyers who provide access to the justice system to those who cannot afford to pay at its annual Pro Bono Awards luncheon on Oct. 14

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Your Southwest Florida holiday wish list Let it snow elsewhere. Lee County’s palm trees and Gulf breezes bring plenty of seasonal cheer. So get out, make new

traditions and enjoy the time-tested festivities that make it the most wonderful time of the year, Southwest Florida style. Here are just a few of the many delightful things to do around town with friends and family.

Irving Berlins’ White Christmas Broadway Palm Dinner Theatre, now – Dec. 25 Two army buddies-turned showbiz partners follow two singing sisters to a Vermont inn. When they discover their former commanding officer is in jeopardy of losing his inn, they put on a show to help save his business, and they find love in the bargain. This merry and bright theatrical experience is full of dancing, laughter and some of the greatest songs ever written such as “Happy Holidays,” “Blue Skies” and “White Christmas.” (239) 278-4422, BroadwayPalm.com

Cape Coral Christmas Boat Parade and Festival 2016 Holiday House – “Let Heaven & Nature Sing” The beloved tradition continues 5 – 9 p.m. Dec. 9 – 23 at the historic Langston Kingston Home and Burroughs Home. Nightly entertainment. Visit with Santa Claus! Admission: $5. Military and Children under 10 are free. Tickets available at the door. (323) 739-4462 or fmwccmailbox@gmail.com for info.

Florida Everblades Turn your next corporate outing or holiday party on its edge with party suites and group ticket options from the Florida Everblades. Full and flexible season ticket packages make great gifts for clients and staff. (239) 948-PUCK, FloridaEverblades.com

Captiva Holiday Village Various events and venues through Dec. 24 captivaholidayvillage.com

Edison Ford Holiday Nights Through Jan. 1 EdisonFordWinterEstates.org/events

RES GESTAE | DECEMBER 2016

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Legal Lens

Kelly Fayer, Brad Jessen, Mary A. Cosmo

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Veteran's Clinic Spearheaded by President-Elect Kelly Fayer and presented by the Pro Bono Clinic on Oct. 29 at the SWFL Military Museum and Library. Brad Jessen of Edward Jones, retired U.S. Navy aviator, provided lunch for our volunteer attorneys. Photo credit: Jim Jett Photography

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RES GESTAEâ€‚|â€‚DECEMBER 2016

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An obligation to the future

Justice Fred Lewis, professionalism champion

By Sara Fitzpatrick Comito

RES GESTAE | DECEMBER 2016

o Justice R. Fred Lewis, professionalism and effective lawyering go hand in hand. “Some of the best advocates I’ve ever encountered as an attorney in private practice and the Court have been the nicest, most cordial, most effective lawyers I’ve ever seen,” he recalled. Granted, it’s been a long time since he has been in private practice, but his position affords him a unique perspective. In his 18 years of service to the Florida Supreme Court, Justice Lewis has been one of the most ardent voices for enhanced professionalism training and accountability measures for the state’s sizable and growing legal community. This month, LCBA members will enjoy an unprecedented opportunity to hear that voice in person.

over moot court for students of Florida International University’s School of Law. “We have many more pressing matters,” he said, “but we have an obligation to ensure the future of good lawyering in our courts and for our citizens.” That dedication to mentoring is an extension of Justice Lewis’ own career journey, which he will be the first to characterize as unlikely. It’s unusual for an attorney to ascend to the Supreme Court bench directly from

the former chief justice. “I wouldn’t have believed that, even while I was going to college.” And in Florida? Forget about it. “Special people, people who were somebody, could go to Florida. It wasn’t people like my family.” Good grades, athleticism and an almost superhuman work ethic equipped the justice to achieve a life beyond his wildest dreams. But he won’t tell you that. Instead, he’ll tell you about the people who gave him a hand up, lifting him out of the

private practice, for one -- and while it is a pinnacle, the position can feel impersonal. “I never really wanted to be a judge. I loved being a lawyer. Still to this day I miss my clients, my cases, my office,” he said with a plaintive laugh. Colleagues pressed him to submit his name, and he was appointed by the late Gov. Lawton Chiles. Justice Lewis’ legacy includes such landmark initiatives as the first statewide all-branch mental health summit, Justice Teaching, an audit of court facilities and a task force to enhance access to disabled individuals, and a uniform high-level diversity training program for Florida judges. Would a young Fred Lewis believe he’d end up where he is now? It’s a question that elicits a hearty laugh from

struggles familiar to any long-time coal mining family. One cold January night in Huntington, West Virginia, a basketball coach from Florida approached the young athlete after a game and asked, “How are your grades?” Now-Justice Lewis said then, “Well, they’re really pretty good.” An invitation to the Sunshine State was extended on the spot. “It was like someone asking me to go to heaven.”

An unexpected ascent Local professionalism mavens Ita Neymotin and Henry Lee Paul did the heavy lifting involved in coordinating a CLE/CJE seminar on Dec. 16 titled “Professionalism in Florida Courts.” Considering their guest speaker’s busy schedule, it was surely no small undertaking. When this magazine caught up with Justice Lewis, he had just presided with his fellow justices

A marathon, not a sprint At every juncture, he said there was somebody offering to help, a special teacher, or a scholarship, all without which, the justice insists, “I would still be in the bowels of West Virginia, DECEMBER 2016 | RES GESTAE

digging coal or worse.” Then there were his law school professors he says were instrumental in getting his career off the ground. Those formative experiences are the ostensible origins of Justice Lewis’ dedication to mentoring. However, he talks about it as an ingrained American value, one that requires continuous care and feeding. Said the justice, “I believe our forefathers thought we would keep this democracy going through an understanding of laws and systems that doesn’t pass down in a genetic way.” With the successful Justice Teaching project, he is realizing his aspirations for enhanced civics education for the people of Florida. “When I came to the court, it occurred to me that would be one of the most important things I could ever touch,” he said. Betraying an initially stoic demeanor, Justice Lewis becomes positively effusive when discussing the professional development of young attorneys. “It’s most important for them to understand that their journey in this profession is a marathon, not a sprint,” he advises. Other sage counsel relates to appreciating one’s interconnectedness within a community. He urges young people to find a practice that is supportive of their priorities, from the

RES GESTAE | DECEMBER 2016

professional to the spiritual and personal. “There needs to be this blending so we don’t become so one-dimensional that we lose sight of who we are as people and of our place in the community and in the communities all over Florida,” he said. “You need to know when to get away from things that are not in your best interest, such as people expecting you to do things you ought not do or who are sucking all the sparkle right out of you.” These values are primary to inculcating an ethic for professionalism.

A work in progress Naturally, learning doesn’t end when we’re young. And as there are intrinsic values to promoting professionalism, plus better outcomes in cases, there are dire consequences when it doesn’t receive its proper emphasis. “We don’t need people who behave in less than adult ways when dealing with litigation matters,” admonished Justice Lewis. “When the public turns off to the profession – the entire judicial branch – and loses trust and confidence in what we do, we’re really going to have problems.” When he addresses Lee County’s legal community, he will outline the history of professionalism and describe its progression over time. Naturally, he will discuss the local panels he proposed when he became chair of the Supreme Court’s Professionalism Commission in 2013. According to the commission’s statewide surveys, professionalism

consistently ranks among attorneys’ top concerns, and has for many years. “We’re a work in progress,” Justice Lewis said, noting it’s too early to predict the panels’ success as a whole. “Some are ahead of others. Some have experienced delays. We’ve had growing pains. Are we taking the right approach, and what else should we be doing? That’s the next conversation we need to have.” The legal community must guard against complacency, and begin focusing on causes, rather than merely the symptoms, of professionalism issues. According to Justice Lewis, a lawyer who is financially unstable is more likely to transgress. The sheer number of lawyers, and the law schools that churn them out, are also contributing factors. Then there are general competence issues. “Lawyers who are faced with circumstances they’re not quite prepared to handle can sometimes become defensive or obnoxious,” he said. Much more straight talk like that is on offer Friday, Dec. 16. Ita M. Neymotin Regional Counsel, Second District Court of Appeal; Henry Lee Paul, Ex Officio Member of the Supreme Court Commission On Professionalism and Lee County Bar Association Present: The Honorable Supreme Court Justice R. Fred Lewis from 10 a.m. – 2 p.m. at Crowne Plaza Bell Tower. Register online at leebar.org. Call (239) 334-0047 or email admin@leebar.org for more information. RG

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Legal Lens

Balloon animal fun

Danielle and David Seitz

Michael Corso, Scott Atwood, David Linn

LCBA Annual Family Bar-B-Que LCBA members, family and pets gathered at the beautiful Smoot property for fresh air, good food, music and memory making. Face painting, balloon animals and clowning around were on the menu, along with Scott Atwood’s Charity Dunk Tank.

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Scott’s daughters with Kristalyn Loson

Tom Smoot, III with lovely ladies

RES GESTAE | DECEMBER 2016

Photo credit: Jim Jett Photography

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Oct. 27, 1944 – October 12, 2016 The Lee County Bar Association wishes to remember Ron Buschbom, who passed away peacefully on Oct. 12 at Hope Hospice House. In addition to this organization and his profession, he served his country honorably as a proud United States Marine. Ron spent more than 35 years trying lawsuits both as plaintiff and defense attorney in personal injury and commercial lawsuits. His passion for alternative dispute resolution led him to open Ronald L Buschbom Mediations in 2012. Ron was born in Miami on Oct. 27, 1944. After graduating from Miami Edison Senior High School in 1962, he played college football as a defensive starter for the Midshipmen at the United States Naval Academy. He always loved to chant, “GO Navy, beat Army!” The LCBA extends its heartfelt condolences to Ron’s wife of 45 years, Marion, and his family. In lieu of flowers, donations in Ron’s name can be made to Hope Hospice, 9470 HealthPark Circle, Fort Myers, FL 33908, or online at hopehospice.org/donate.

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The Dish

Shangri-La Springs

How does your garden grow?

In Southwest Florida, things are a little different than they were for “Mary, quite contrary.” Consider jaboticaba, a tree that grows spherical, black fruits directly along the trunk, rather than the branches. How about a litany sticky with mango, banana, papaya, guava, strawberries? In her landmark 2013 book, ecology writer Emma Marris proposed the “Rambunctious Garden” model of coexisting with nature. My friend Millisa Bell takes it a step further. She is “The Unruly Gardener,” and handily lives up to that moniker as farmer, menageriemanager of a Kiplingesque roster of fruits and vegetables that includes such characters as loquat, longan, lychee and limequat (and okra, tatsoi and pak choi), and keeper of the bees at Shangri-la Springs. Located at the life-giving springs that also give Bonita Springs its name, Shangri-La is an Eden at the end of the construction on Old 41. The Heitman Hotel was constructed in 1921, and the property subsequently changed hands several times, becoming a haven for natural hygiene enthusiasts (think: “The Road to Wellville”). In 1998, long-time conservationists Addison Fischer and Heather Burch acquired the property. Today, this historic spa retreat is a short drive for any of our readers to commune with a grand postcard past boasting a uniquely regional architectural aesthetic and hide away from the modern world while taking solace in nature.

RES GESTAE | DECEMBER 2016

A simple lunch proves restorative. Chef Pyro Rodriguez, also of Crave Culinaire fame (and that of many highly regarded Manhattan restaurants), tends to keep a low profile. Like the understated white china that amplifies the colors, textures and flavor that can only come from nutritious, organic produce picked moments before a meal, Chef applies a light touch. Caponata means eggplant is in season – and with the four-woman agricultural team on site, it always is. Sorrel, fennel and endive add currency to a salad boasting Gulf pink gold shrimp. Tarragon infuses your glass of water for an extra little lift. All told, about 4,000 pounds of food came out of the ground at Shangri-La this past year, from winter to summer. That’s not counting the fruit.

Photos (above left clockwise): Fresh hummus served with pita bread, Wild Alaskan Salmon with White Quinoa, beets with candied walnuts and goat cheese, Pasture to Table Chicken Breast and Fall Risotto, Shrimp Salad

That fruit makes its way to your table in unexpected ways. “Hummus” comes from the Arabic for chickpea, and Shangri-La serves a sampler of the ubiquitous party spread. That legume is in representation in a roasted red pepper variety and one subtly flavored with citrus and fresh herbs. A Southwest Florida twist is an avocado hummus. Served with fresh vegetable sticks, it’s a fresh, light teaser, especially next to the petite wild salmon cakes served with black olive butter and cilantro foam.

company outing or fundraising event or after a spa treatment or yoga class. Just beware of falling fruit! RG

I’ve mentioned in this space before the Cervantes quote affirming “hunger is the best sauce.” Sweeten the pot even more with a pre-repast tour of the gardens. See the sunflower microgreens growing moments before they adorn your roasted beets and candied walnuts or the Circle C Farm chicken flatbread sandwich. Ponder the leafy mounds of vines where the sweet potatoes for your wild Alaskan salmon salad were dug up and left to dry for a time in the sun to cure for maximum sugar. Marvel at the rows of kale and chard demonstrating the opposite of “unruly.” Ruly? Truly! Roam the grounds, presided over by rare, mature mysore fig trees with their serpentine, frozen lava-flow roots, perfect for clambering over with friends during a

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Sara Fitzpatrick Comito is the Communications Editor for CONRIC PR & Marketing and associate editor of Res Gestae magazine. For suggestions and comments on this regular feature, contact Sara at Sara@ConricPR.com. DECEMBER 2016 | RES GESTAE

On the Bench Hon. Morris Silberman When the LCBA hosted its annual luncheon to celebrate those who provide much-needed legal services to those with limited ability to pay, Judge Morris Silberman decided it was an event worth traveling for. The Second District Court of Appeal judge made his way to the Sidney & Berne Davis Art Center just in time for the start of the Oct. 14 ceremony, no thanks to his smartphone navigation app. The awards were the main event, but not his main motivation – nor that of the 39 honorees. Although richly deserved, he said, “the lawyers who get involved in pro bono don’t do it for the recognition.” According to Judge Silberman, the idea of helping people and doing good is the original spark that drives many folks to the legal field. He was no exception, but the law wasn’t always an obvious career goal. He originally assumed his societal contribution would be the field of chemistry or genetics – then came college. “By the end of the first year, I was pretty much done with science,” he chuckled. Great professors stoked new interests that led him to a double major in philosophy and political science, and planted a suggestion about law school. The judge recently advised his college freshman daughter to try different things before deciding on a career. Upon graduation from University of Florida College of Law in 1982, he clerked for Judge Herboth S. Ryder at the Second District Court of Appeal, where he discovered a love for appellate work, including the writing, research and intellectual inquiry that goes with it. He began in his current post in 2001. The judge said, “I still look forward to going to work every day.” One of his favorite parts of the job is traveling around the district, and when presented the opportunity to visit Southwest Florida, he tries to go at every opportunity. “I very much enjoy having court throughout the district. Many of the smaller towns and cities have strong legal communities and a tremendous sense of professionalism. I thoroughly enjoy being invited down there.” Judge Silberman’s wife of 30 years, Judge Nelly Khouzam, joined him at the Second District Court of Appeal in 2008.

Time for a Year-end Investment Review As the year comes to a close, you may want to look back on your investment picture of the last year. Specifically, consider three areas: performance, investment mix and contribution level. First, study your investments’ performance – and try to look beyond the “raw” return numbers. How did your portfolio perform relative to earlier years? Were your returns on track to help you meet your long-term goals? And were your return expectations realistic, based on your investment mix and the market environment? Second, look at your investment mix – is it still appropriate for your goals, time horizon and risk level? Over time, this mix can become unbalanced, so you may need to adjust it. Finally, review your contribution level. Are you putting in as much as you can afford to your 401(k) or other employer-sponsored plan? Did you boost your contributions when your salary went up? We’re just about ready to turn the page on the 2016 calendar. So, as you review your investment decisions for the past year, try to determine what worked, what didn’t – and what you can do to improve your results in 2017.

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From the Bar Carlos J. Cavenago III, Esq. Ask Carlos Cavenago about the two generations of men who came before to leave a Roman numeral “3” after his name, and he’ll tell you, “I have a lot to live up to.” Originally from Lima, Peru, his father came to New York in 1962 with no English, very little money and plenty of determination. He retired early from a successful career in banking. “My father sacrificed a lot to put us through St. Francis and Bishop Verot – so there’s no reason I can’t work hard to give back to the community and enjoy our profession.” In 2000, Cavenago became the first FGCU grad to obtain a criminal justice degree with a special emphasis in legal studies, a curriculum he helped shape to improve his law school prospects. “I had Judge Carlin and now-Senior Judge Volz as adjunct professors, who encouraged me to go into law, and I never looked back.” Through the resourcefulness his parents sought to instill in him and his three older sisters, Cavenago met Allan Parvey. Since working side by side at Parvey & Frankel, the two have collaborated on medical malpractice, nursing home neglect, auto insurance and other kinds of complex cases spanning many years and courts all over Florida. With his 44 years of experience, Parvey is a valued mentor, demonstrating keen analysis of the facts and instincts for how things will go. Cavenago has recently come under the gaze of the TV cameras with a high-profile hospital patient privacy case. The media has treated him fairly throughout the years, although Cavenago notes he often has to help reporters rephrase their questions: “They don’t often know the poignant questions to ask to try to establish who the wrongdoer is or what the remedy should be.” Cavenago’s wife of 12 years works as a pharmaceutical rep for Pfizer. “Both of our professions rely on an array of physicians,” he said. “Our worlds tend to overlap, which is a good thing.” While the medical and legal communities enjoy a good relationship, there’s always room for increased understanding and patience with each other.

Denise L. Wheeler

Certified Civil Circuit Mediator Denise is available to mediate employment and commercial litigation cases.

RES GESTAE | DECEMBER 2016

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DECEMBER 2016 | RES GESTAE

From the Bar Leilani Marie Martinez, Esq. When Kati and Jose Calvo went looking for a new associate some time ago, their wish list included fluency in Spanish, but they were willing to wait for just the right candidate. Leilani Martinez wanted to gain more experience before jumping into private practice. When the couple approached her again, the time was right. Martinez said, “I am very excited about the opportunity to continue growing as an attorney under their guidance.” At Calvo & Calvo, Martinez focuses her practice in immigration and family law, her two passions. Admitted to the bar in 2014, the Southwest Florida native had previously advocated on behalf of individuals in deportation proceedings at Villanova University School of Law Migrant Farmworker Clinic. She also enjoyed intensive litigation training as a Department of Children and Families attorney. Both positions allowed her to prove herself while navigating complex and often disturbing scenarios, including the abuse, abandonment and neglect of children. “Having to face those kinds of situations forced me to keep in mind that I’m not just an attorney; I’m also human,” Martinez reflected. “Every client is an actual person with real feelings, going through one of the most difficult times in their life. They are inviting me into their lives, often the most intimate aspects of it. I strive to always keep that in mind “ Martinez’s parents’ journey to the U.S. from Cuba influenced her own path to immigration law. Growing up, she wanted to be different from her older sister and scoffed at the idea of becoming an attorney. That all changed when as an undergrad she enrolled in an American civil liberties course. That year she asked for LSAT books for Christmas. Not only is Martinez a first-generation American, but a first-generation college grad. During her last semester at law school, she helped a client obtain his green card so he could also attend a college in the U.S. It was her first win. “I had already helped one person and technically my career hadn’t even started yet! I’ll never forget that feeling.”

“It Ain’t Over ‘Til It’s Over” - Lawrence Peter Berra

The appellate forum is very different from the trial forum. An appellate litigant is at an advantage when represented by an experienced appellate advocate, one who has dedicated her/his entire career to understanding the complexities of appellate practice and its unique requirements. Appellate rules and effective strategies on appeal are very different from those used at the trial level.

If your case is or should be moving into the appellate arena, call in an expert: Gerald W. Pierce.

Gerald W. Pierce, B.C.S. (239) 461-0082 • Gerald@geraldpierce.com • Board Certified in Appellate Practice since 1994 (The only Board Certified Appellate Practitioner in Lee County)

• AV Preeminent Rated® for more than 20 years • 40th year as an appellate lawyer in SW Florida 36

RES GESTAE | DECEMBER 2016

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DECEMBER 2016 | RES GESTAE

Absolute Law Aloia Roland & Lubell, LLP Arend & Sisk, P.A. Associates and Bruce L. Scheiner, P.A. Bergermann Law Firm Bonita Springs City Attorney’s Office Boyle & Leonard, P.A. Burandt, Adamski & Feichthaler Buchanan Ingersoll & Rooney PC 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. Florida Rural Legal Services Fort Myers City Attorney’s Office Fried & Fried, P.A. Geraghty, Dougherty, Edwards & Stockman, P.A. Goldberg 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. John Webb Legal Group, P.L The Law Office of Brantley Oakey 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 Maughan Law Group McNamara Legal Services, P.A. McQuagge Law Firm Men’s Rights 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 Robert Harris Law Firm Roetzel & Andress, L.P.A. Roppo Molandes, PLLC Rubinstein, Holz & King, P.A Sheppard, Brett, Stewart, Hersch, Kinsey & Hill, P.A. Simmons Law Firm, P.A. Spivey Law Firm, Personal Injury Attorneys P.A. Steinberg & Linn, P.A. Strayhorn and Persons, P.L. Toll Law Vernis & Bowling of Southwest Florida, P.A. Viacava & Cantor Attorneys at 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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RES GESTAE | DECEMBER 2016

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In The News Joseph Adams has joined the Pavese Law Firm, focusing primarily in real estate, environmental and land use law. Previously he was an intern at the Lee County Attorney’s Office and a campaign intern for a U.S. Congressional political campaign. He also worked as a law clerk for a local law firm. Adams earned his J.D. from the University of Florida Levin College of Law cum laude. He also holds a B.A. in political science and history and a certificate in environmental and land use law. He passed the Florida Bar Exam in July 2016, and is now a member of the Lee County Bar Association.

Kyle Dudek has joined Henderson, Franklin, Starnes & Holt, P.A. as an associate in the Tort & Insurance Litigation division and will be based out of the firm’s Fort Myers office. After receiving his law degree magna cum laude from George Mason University School of Law, Dudek served as a law clerk in the U.S. Court of Appeals for the Fourth Circuit, the U.S. District Court for the Eastern District of Virginia, and in the U.S. District Court for the Northern District of New York. He received his undergraduate degree from Cornell University (B.S., magna cum laude, 2007).

Steve Ramunni has joined Wilbur Smith Attorneys at Law as a new partner. Ramunni’s experience enhances the business litigation practice at the firm, which has also expanded its services in real estate, government, administrative, probate and guardianship law. Practicing since 1983, Ramunni earned his J.D. from South Texas College of Law and his bachelor’s degree from Florida State University. Previously he was a partner in his own firm, where he represented large municipalities and governmental entities such as an affordable housing authority, a county zoning board and a county clerk of court.

Kathleen Oppenheimer Berkey, a land use, zoning and local government attorney and certified land planner at Pavese Law Firm, was selected from over 5,000 submissions to be featured in The 2017 Woman’s Advantage Shared Wisdom Calendar. The calendar provides advice for women business owners from influential women leaders across the U.S. and around the world. This is Berkey’s second selection, having been previously featured in The 2015 Woman’s Advantage Shared Wisdom Calendar. Berkey joined the Pavese Law Firm in 2011, and focuses primarily on resolving land use and zoning, real estate and environmental issues related to the development of land.

David A. Ludgin has joined the Bonita Springs office of Cummings & Lockwood as counsel in the Private Clients Group. His practice focuses on estate planning and administration, charitable planning and closely held business succession planning. Previously, he practiced with the law firm of McCarter & English in New Jersey for over 35 years. Ludgin received his undergraduate degree from Princeton University, his J.D. from Boston University and his LLM in Taxation from New York University School of Law. He is also a member of the prestigious American College of Trust & Estate Counsel.

Roetzel & Andress has been ranked in 2017 “Best Law Firms” by U.S. News & World Report and Best Lawyers. The firm was ranked regionally in 35 practice areas, and nationally in: commercial litigation, financial services regulation law, litigation – construction, real estate law, transportation law, and land use & zoning law. The Fort Myers office earned Tier 1 Metropolitan rankings in: commercial litigation, land use & zoning law, litigation – land use & zoning, litigation – real estate, litigation – trusts & estates, real estate law and trusts & estates law. The office also received recognition for its work in litigation – construction and municipal law.

RES GESTAE | DECEMBER 2016

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Joe Viacava has successfully defended hundreds of criminal cases and is ready to help you and your client. All lawyers say that they are aggressive, but Mr. Viacava is known as the quintessential aggressive attorney. “Joe Viacava is a pit bull on cross-examination.” –NBC News Payment Plans • Aggressive and Thorough Investigation Top Quality Trial Performance Free, in-depth, personal initial consultation Referrals Welcome Private parking for clients • State of the art law office

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