Res Gestae - August 2021

The Quest for Clean Water Continues Preserving the water for future generations

Do you know what constitutes a family law "emergency?"

Whiskey Creek Station serves up huge flavors THE OFFICIAL AWARD-WINNING PUBLICATION OF THE LEE COUNTY BAR ASSOCIATION • AUGUST 2021

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contents on the cover

20

ad directory

The Thirst for Clean Water Keith Grossman, Esq.

special features

26

So You Think There is a Family Law "Emergency?"

- Not So Fast Hon. Lee A. Schreiber

20

Blake Hampton, Esq.

8 Letter from the Executive Director

Lauren Baugh

28 Guest Attorney

Getting to Yes in Mediation

Denise Wheeler Wright, Esq.

30 The Dish

Whiskey Creek Station

Lauren Baugh

10 Calendar of Events

32 New Members

12 Ethically Speaking

34 5 Things You Don't Know

Henry Lee Paul, Esq.

14 Practice Section

Family Law

Christina O'Brien, Esq.

16 YLD Spotlight

IBC

Bounds Law Group

32

Boy, Agnew, Potanovic

35

Calvo & Calvo Attorneys at Law

27

CONRIC pr + marketing

16

Dal Lago Law

13

Denise H. Kennedy

37

DeMine Immigration Law Firm

15

Direct Impressions

37

Donna Tisch

19

Edison National Bank

BC

First Street Biz

departments 6 Letter from the President

Aloia, Roland, Lubell & Morgan, PLLC

About Me

Sheldon Finman, Esq.

36 100 Club 38 In The News

Kayla Richmond Miller, Esq.

18 Legal Lens

29

Get Smart Bail Bonds

25

Gulf Shore Investigations

25

Heather Fitzenhagen

27

Henderson, Franklin, Starnes & Holt, P.A.

13

Henderson, Franklin, Starnes & Holt, P.A., Robert C. Shearman, Esquire

11

Joshua Tree Counseling

37

Kelleher Law, PA

34

Lake Michigan Credit Union

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Law Firm of Scott T. Moorey

17

Law Offices of Dennis L. Webb

29

Leonard P. Reina

25

Mark B. Yeslow

15

Markham Norton Mosteller Wright & Company PA

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McHale, P.A.

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McHale, P.A.

33

Men's Rights Law Firm

36 35

REAS, Real Estate Advisory Services, LLC

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Roetzel & Andress

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Sanibel Captiva Community Bank

IFC

Sheldon E. Finman, P.A.

33

Simon Harrison, Esq.

32 35

The North Law Firm, P.A.

19

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president's letter Flashback to several years ago. It was a hot, sunny summer day in Florida, and I was on a weekend trip with friends. Since it was a perfect day to be on the water, we hopped on my friend’s boat. Along the journey, we traveled to a spot where the brown, dirty freshwater from the mouth of the Caloosahatchee River meets the saltwater of the Gulf of Mexico. The brown water

LEE COUNTY BAR ASSOCIATION administration

Executive Director - Lauren Baugh Administrative Assistant - Mairelis Tamayo

executive council

TREASURER

Spencer Cordell, Esq.

BOARD MEMBERS

John Miller, III, Esq. Andrea Pleimling Smith, Esq.

committee chairs

Flash forward to present day and Leland is one of the founding members and on the Board of Directors of Captains for Clean Water. Since August is National Water Quality Month, it’s a perfect opportunity to have Captains for Clean Water speak at our August membership luncheon. Please RSVP for what is sure to be another informative and impactful event.

Please also join us for “Baseball with the Bar” on August 5 at Hammond Stadium, sponsored by the Law Office of Spencer Cordell. We will be in one of the suites and it is a family-friendly event. Please register now so we have an exact headcount.

BENCH-BAR GALA

LAW RELATED EDUCATION

Danielle Butler, Esq.

T. Rankin Terry, Esq.

DIVERSITY AND INCLUSION

LAW WEEK

Kelly L. Fayer, Esq. and Ita Neymotin, Esq.

Hon. John S. Carlin

HEALTH AND WELLNESS

LCBA FOUNDATION CHARITY GOLF TOURNAMENT

John Miller, Esq. and Joel Hyatt, Esq.

Shannon Puopolo, Esq. and Kenneth A. Jones, Esq.

HISTORY

MOCK TRIAL

Jenna Persons, Esq. and E. Bruce Strayhorn, Esq.

Shaina Zuppke, Esq. and Eunice Gedeon, Esq. PRO BONO

Andrew Banyai, Esq.

practice section chairs ALTERNATIVE DISPUTE RESOLUTION

IMMIGRATION LAW

Anne Dalton, Esq. and Bill Merchant, Esq.

Indera DeMine, Esq. and Nirupa Netram, Esq.

APPELLATE LAW

INTELLECTUAL PROPERTY

Alex Brockmeyer, Esq.

Luca Hickman, Esq. and Mark Nieds, Esq.

Speaking of exceeding expectations…through the generous contributions of LCBA members, the Lee County Bar Association Foundation continues to fulfill its mission of connecting attorneys to the needs of the Lee County community. Now in its 4th year, the Foundation received a record number of grant applications this winter grant cycle. Through your support, The Foundation provided grants to 23 organizations. This support provides a lifeline to many families who have lost a parent, young adults aging out of the foster care system and adults experiencing mental illness who are seeking health services. The need is great, and your generosity is never taken for granted. On behalf of myself and the Foundation, thank you.

CORPORATE LAW

Mairin Roepstorff, Esq. and Alicia Olivo, Esq.

LAND USE AND GOVERNMENTAL LAW

CRIMINAL LAW

Sarah Spector, Esq. and Erica Woods, Esq.

Kathleen Fitzgeorge, Esq. and Leah Harwood, Esq. ELDER LAW

Blake Hampton, Esq. and Amy McGarry, Esq. FAMILY LAW

Christina Holly, Esq. and Mellany Marquez-Kelly, Esq. GENERAL CIVIL AND BUSINESS LITIGATION

Carlos Kelly, Esq. and George Knott, Esq.

Blake P. Hampton, Esq. Blake@Hampton.law | 239.309.0090 RES GESTAE

VICE PRESIDENT

Tiffany Pereira, Esq.

Peter Knize, Esq. Michael Anthony Pica, Esq.

This was the first time I’d seen firsthand the impact the Lake Okeechobee discharges have on Southwest Florida’s environment and marine life. It also happened my friend and captain of the boat was Leland Garvin.

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SECRETARY

Kathleen Smith, Esq.

YLD President - Shirlarian "Shae" Williams, Esq. President Emeritus - Matthew Roepstorff, Esq

plume even went past Sanibel.

Additionally, I hope you all share in my enthusiasm for our director, Lauren Baugh. Her hard work, dedication, and ability to surpass expectations continues to amaze me. I recognize Lauren’s drive in continually planning successful events and making the Bar a meaningful organization for our members and the community. Lauren truly is the backbone behind the Bar. Thinking of making that her new title….

PRESIDENT

Blake Hampton, Esq.

LeeBar.org

REAL PROPERTY, PROBATE AND TRUST LAW

Jennifer Hammond, Esq., Kenneth Kemp, Esq., and Peter Knize, J.D., L.L.M. SOLO & SMALL FIRM

Conor Foley, Esq. TORT LITIGATION

Dawn Maselli, Esq.

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executive director's letter How are we already in the eighth month of 2021?!

The official award-winning publication of the Lee County Bar Association, which serves citizens and the legal community since 1949.

Our year has been amazing so far, despite all kinds of hardships that surely, we have all faced with life, school, technology and the like. The LCBA has thrived and offered all kinds of programming, some CLEs and some not.

239.334.0047 ResGestae@LeeBar.org

staff PUBLISHER

Connie Ramos-Williams | 239.690.9840 Ext. 1001

In July, I was lucky enough to attend the Florida Bar’s Voluntary Bar Leader’s Conference, where I listened to some wonderful speakers on how to improve, engage and continue thriving in the Voluntary Bar Association (VBA) world. This conference is where the Executive Directors and other VBA executives go to learn, share, and innovate. What does this mean to you, the reader?

Well, it means I have a list of new and fun things to plan for our members, sponsors, board members and community!

EDITOR-IN-LAW

Tiffany Pereira, Esq.

MANAGING EDITOR Keith Grossman, Esq.

CREATIVE DIRECTOR April Bordeaux

ADVERTISING ACCOUNT EXECUTIVE Lisa Doyle-Mitchell | 239.851.4729

FEATURE WRITER

Keith Grossman, Esq.

CONTRIBUTING WRITERS

I was also lucky enough to have some vacay time!

Blake Hampton, Esq. Lauren Baugh Henry Lee Paul, Esq. Christina O'Brien, Esq. Kayla Richmond Miller, Esq. Hon. Lee A. Schreiber Denise Wheeler Wright, Esq. Sheldon Finman, Esq.

This month, we have REALLY ramped up our programming. We are having a Baseball with the Bar — Family Fun Night; Family Law CLE on Real Estate and Divorce; Membership Meeting and CLE; a social at Downtown Social House Sponsored by Sallee Promotions, Inc.; a YLD CLE and a CLE with RPPTL on the SECURE Act. I am sure by the time this magazine hits your mailbox, we will have added one or more to that!

We are all VERY excited about our upcoming LCBA membership meeting and CLE, which will feature panelists Leland Garvin, Esq., Managing Partner at Garvin Injury Law; PJ Scheiner, Esq., of Associates & Bruce L. Scheiner; Captain Chris Wittman, Co-Founder and Director of Outreach and Engagement with Captains for Clean Water; and John Lai, President & CEO at Sanibel Captiva Chamber of Commerce; who will be speaking on all the legal details of the not for profit organization Captains for Clean Water. You are not going to want to miss this!

Shout out to Leland Garvin and Garvin Injury Law for sponsoring this membership meeting, so we can offer this luncheon and CLE free to all of our LCBA members and just $25 for those who are not yet members.

Stay tuned to our eNews “News You Can Use” weekly for the latest LCBA news!

CONTRIBUTING PHOTOGRAPHER Jim Jett Photography

BILLING INQUIRIES 239.334.0047

Res Gestae is an award-winning magazine published monthly by CONRIC pr + marketing 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 we 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 pr + marketing.

Copyright©2021 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 from the Lee County Bar Association. To inquire about such permission, please contact the Lee County Bar Association at Info@LeeBar.org.

Lauren Baugh, Executive Director LBaugh@LeeBar.org | 239.334.0047 Ext. 102

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5237 Summerlin Commons Blvd., Suite 307, Fort Myers, FL 33907 239.690.9840 | ConricPR.com | Info@ConricPR.com LeeBar.org

calendar of events Dates of some practice section meetings have not been confirmed. Check LeeBar.org for details!

August

5

LCBA Family Fun Night "Baseball with the Bar"

6:30 - 10:00 p.m.

Hammond Stadium Sponsored by: Law Office of Spencer Cordell. $15/person includes ticket, suite seat, hot dog or burger, snacks and water.

LIMITED NUMBER OF TICKETS AVAILABLE Register at Leebar.org

13

LCBA RPPTL Virtual Lunch

Noon - 1 p.m.

Topic: “Things I wish I knew about the SECURE Act” Speaker: Al Stashis, Esq. Register at LeeBar.org

19

LCBA Family Law Lunch and CLE

Noon – 1 p.m.

Lee County Justice Center- Courtroom 4B Sponsored by: Compass - The Darda Group Topic: “The Real Estate Market…and Divorce” Speaker: Mike Darda Register at LeeBar.org

19

LCBA Happy Hour Social with Sallee Promotions

5:30 - 7:30 p.m.

Downtown Social House Sponsored by: Sallee Promotions, Inc Register at LeeBar.org

20

LCBA Captains for Clean Water Membership Meeting & CLE

Noon – 1 p.m.

Sidney & Berne Davis Art Center Sponsored by: Garvin Injury Law Topic: “Captains for Clean Water…the legal side of the waves” Panelists: Leland Garvin, Esq., P.J. Scheiner, Esq., Captain Chris Wittman and John Lai Register at Leebar.org

25

LCBA YLD Hybrid CLE

Noon - 1 p.m.

Lee County Public Works Building Topic: “How to make the team...what a Legal Recruiter looks for” Speaker: Mary Beth Link Register at LeeBar.org

Visit us online at LeeBar.org to see more calendar items and RSVP for upcoming events.

Would you like to submit an event? Email your event submission to ResGestae@LeeBar.org.

Thank You to Our 2021 Annual Sponsors

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LeeBar.org

August 2021

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ethically speaking

FLORIDA SUPREME COURT EXPANDS LEGAL MALPRACTICE LIABILITY by henry lee paul, esq.

T

he Florida Supreme Court has expanded the ability of a non-client to have standing to sue a lawyer for legal malpractice in the recently decided Arch Insurance Company v. Kubicki Draper, LLC, SC19673. The insurer (Arch) provided their insured with a lawyer pursuant to their duty to defend. Arch settled for policy limits and subsequently sued the law firm for legal malpractice. The Court considered whether Arch had standing to sue for malpractice based on privity, as a third-party beneficiary, or through subrogation.

A successful legal malpractice claim ordinarily must establish privity of employment by the plaintiff and neglect

of a reasonable duty by the lawyer which proximately caused a loss to the plaintiff.

Florida case law has, with few exceptions, a very strict privity requirement, which has generally prevented third parties from recovering for malpractice. The Court explained this restriction is to prevent a marketplace in assigned malpractice claims in which they become “a commodity to be exploited and transferred to economic bidders who have never had a professional relationship with the attorney and to whom the attorney has never owed a legal duty.”

Both the trial court and the 4th DCA decided Arch had no standing to bring the malpractice claim. Their analysis focused on the question of whether privity existed between Arch and the lawyer they paid to defend their insured.

Both lower courts resolved that no privity existed between Arch and the lawyer, but also acknowledged the policy argument advanced by Arch. Arch argued that without the ability to sue the lawyer they hired, there would be no remedy for wrongdoing by the lawyer, providing in essence a de facto immunity from civil liability.

The 4th DCA certified the issue as a matter of great public importance to the Florida Supreme Court and stated “We understand the insurer’s public policy argument. However, we are bound to follow the law as it exists, not as it ought to be.”

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LeeBar.org

The Supreme Court ruled Arch had standing to sue pursuant to a subrogation provision in the insurance contract. In reversing the DCA, the Court chose to recognize a narrow contractual basis for an insurer to bring a malpractice claim against a lawyer hired to defend an insured. Significantly, the Court did not adopt Arch’s argument that they had privity with the lawyer within the tripartite relationship between the lawyer, the insured and the insurer.

Neither did the Court find the insurer was an intended third-party beneficiary.

Although insurance defense lawyers will likely now consider increasing their malpractice coverage, other lawyers are not subjected to expanded malpractice exposure pursuant to the Arch ruling.

However, creative plaintiff’s lawyers will continue to try and pull legal threads from the opinion to further expand the scope of legal malpractice liability.

Florida lawyers would be well advised to closely review the Arch case and evaluate whether their representation might be susceptible to a claim for legal malpractice brought by a third party based on contract, privity or intended third party beneficiary.

Henry Lee Paul, Esq. is a former Bar Counsel for the Florida Bar 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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practice section: family law

What is a Guardian ad Litem and Do I Need One in My Custody Case? by christina o'brien, esq.

What is a Guardian ad Litem?

Under Florida law (Florida Statutes §61.403), a Guardian ad Litem is a courtappointed representative who is tasked with acting as the “next friend of the child.”

While their duty is to help protect the child’s best interests, a Guardian ad Litem is NOT a child’s “lawyer” or “advocate/” Instead, it is better to think of a Guardian ad Litem as an investigator or an evaluator.

What does a Guardian ad Litem do?

A Guardian ad Litem is a fact finder. In high-conflict family law cases, this person will likely be an experienced family law attorney who has received training to be a Guardian ad Litem.

A Guardian ad Litem serves as an investigator who works on behalf of the court, with the main purpose of determining what is best for the child.

The Guardian ad Litem can address any issues the court finds necessary to investigate, including relocation, parental responsibility or decision-making, timesharing, or alienation.

A Guardian ad Litem will conduct interviews of the parents involved in the

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case and will talk to the child directly. You should expect the investigation will be detailed and include home visits as well as interviews with the child’s teachers, therapist, doctors, grandparents, and other important people in the child’s life.

A Guardian ad Litem will also review the court file and all other important records in the case. As a parent, it is crucial to keep open communication and a respectful positive relationship with the Guardian ad Litem that has been appointed in your case.

Understanding Florida’s “Best Interests of the Child” Standard Under Florida law (Florida Statutes §61.13), family law courts look to the “best interests of the child” comprehensive legal standard to make determinations in child custody and time-sharing disputes.

The Guardian ad Litem is fundamentally a neutral party that will help to ensure that a child’s physical safety, psychological health, and emotional well-being are properly protected. In his or her report, the Guardian ad Litem will make recommendations to the court using the factors set forth in Florida Statute §61.13 and §61.13001, if the case involves a relocation.

LeeBar.org

Florida courts rely on a Guardian ad Litem’s recommendations, but the judge makes the final decision Florida family law court judges take the recommendations of a Guardian ad Litem very seriously. Through the nature of the position, a Guardian ad Litem will have access to considerable sensitive information about the child and about the case. The Guardian ad Litem serves as the court’s “eyes and ears” to provide the court with access to information and witnesses that a court would not otherwise have. As such, the Guardian ad Litem’s view of the case and recommendations are important to the court. However, it is important to stress the Guardian ad Litem does not make the final decision in any child custody or child visitation case. Courts cannot delegate decisions to a Guardian ad Litem, and the ultimate authority belongs to the judge.

Christina “Christy” O’Brien, a stockholder with Henderson, Franklin, Starnes & Holt, concentrates her practice in the areas of Divorce, Marital and Family Law. O’Brien has been trained to be a Guardian ad Litem, and she has been appointed to serve as a Guardian ad Litem in both Lee and Charlotte counties.

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239-337-4343 August 2021

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YLD spotlight

Career Paths in Law by kayla richmond miller, esq.

A

fter a lengthy hiatus from face-toface gatherings, the Young Lawyers Division has hit the ground running with its slate of in-person events.

Last month, they hosted a question-andanswer panel event for young attorneys featuring Kayla Richmond, Esq., Michael Anthony Pica, Esq. and the Honorable Andrew Sweat. The three local professionals shared their experiences and their different career paths in the law.

Although Richmond, a private practitioner with Henderson Franklin Starnes & Holt, PA; Pica, a federal prosecutor for the State of Florida; and Twentieth Judicial Circuit County Court Judge Sweat, all followed different paths, it was apparent that there were similarities and common traits that led to success in their legal careers. Each of the

panelists contributed their unique wisdom and unanimously agreed on three pieces of advice for all young lawyers.

They advised that: 1) Professionalism will propel your career.

You only have one reputation. We live and work in a small community. Don’t sacrifice your reputation or your word for a single client or a single case.

2) A little fear is a good thing. The panelists described fear as a characteristic that has kept them knowledgeable, working hard, and eager to lead in their respecHon. H. Andrew Swett, Kayla Richmond Miller. Michael Anthont Pica tive fields. A little fear has led to extra and your health, first, so you can be the preparation, keeping up with the law, best attorney you can be. trying new things to assist a colleague, and delivering a good service to clients.

The Young Lawyers Division thanks these outstanding panelists for sharing their 3) Place yourself and your family first. We knowledge and supporting young lawyers. practice law as a career, but the people in our lives make it worth doing this job. Make We’re looking forward to seeing them rise in the community where we practice! sure to prioritize those important people,

Shirlarian Williams specializes in first party property - personal and commercial claims, real estate and personal injury protection with Kubicki Draper.

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LeeBar.org

Family Mediation Available While Social Distancing

During these times of uncertainty with Coronavirus, we have adapted and are offering our family mediation services virtually. You can attend these E-Mediations via Zoom or over the phone for divorce and family law situations, and we can still offer traditional in-person sessions if needed as long as social distancing can be maintained.

www.Markham-Norton.com

Gail Markham is a CPA, CFP®, and has been certified as a Family Mediator by the Supreme Court of Florida since 1994. Her experience in litigation matters and keen understanding of numbers translates into a unique ability to assist parties in exploring settlement alternatives and resolving disputes. Call us today to learn more!

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legal lens The LCBA held its annual "Diversity and Inclusion" Luncheon on June 18 at the Sidney & Berne Davis Art Center. The luncheon was sponsored

by DeMine Immigration Law Firm.

This year's theme was "Asian/ Pacific Islander Americans in Law." 1. Indera DeMine, Jonathan Jenkins 2. Ita Neymotin, Kelly Fayer 3. Greg Blurton, Peter Knize 4. Spencer Cordell, Jennifer Gutmore 5. Hon. Gilberto Perez, Hon. Kimberly Davis Bocelli, Kelly Fayer, Hon. Kathy Smith, Jeffrey Hurcomb 6. Ryan Downey, Patrick Finnegan, Joshua Fredrickson 7. Back row: Blake Hampton, Indera DeMine, Lauren Baugh, Kelly Fayer. Front row: Dr. Colin Feng, Nirupa Netram, Ita Neymotin, Leila Beglova, Leonid Kremenchuker 8. Steven Gendreau, Sara Jackson, John Marra

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For more pics, check out the gallery at LeeBar.org

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LeeBar.org

Photos courtesy of Jim Jett Photography

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Photo courtesy of Jim Jett Photography

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A Thirst f

CLEAN WATE 20 RES GESTAE

LeeBar.org

for

by keith grossman, esq.

Leland Garvin and P.J. Scheiner became concerned about local water quality on their own, but they quickly found each other as brothers in arms.

Garvin grew up in Southwest Florida and is an avid outdoorsman. As an adult, he noticed the water quality here wasn’t as good as other parts of Florida. He knew it wasn’t that way when he was younger. Garvin investigated the reasons for the change in the water quality since his childhood and was distraught by what he discovered.

Scheiner’s entry into the fight for clean water started with his nose, literally. He was on a shallow-water dive off Sanibel and noticed the murkiness in the water.

Back in the boat, he noticed his wetsuit smelled like raw sewage.

The experience made him angry, and he started his research to understand what was going on.

August 2021

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Photo of the Everglades courtesy of Captains for Clean Water

N ER

T

he quest for clean water in Southwest Florida remains a fluid issue.

One organization championing this issue was cofounded by two local attorneys.

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WATER RUNOFFS The story of our water quality starts with Lake Okeechobee and its water runoff. The lake only has two primary outlets for the water runoff. The Caloosahatchee estuary, which goes west, and the St. Lucie estuary, which goes east. The estuaries are getting a source of water they did not receive historically.

Lake Okeechobee’s water runoff historically slowly flowed south, but that changed in the 1950s when the U.S. Army Corps of Engineers (USACE) engineered and designed a water management project that drastically affected Lake Okeechobee.

The purpose of the project was to provide flood control and develop agriculture south of the lake.

Now only a small amount of water runoff goes south, and it would be challenging to increase that flow path because the agricultural area that developed after the water management project. That area is dominated by sugar production, which means to increase the southern flow would involve challenging negotiations and a lengthy process to fix soil subsidence.

The changes also created more agricultural use of the land north of the lake, which has caused phosphorus to flow into the lake.

The level of phosphorus causes problems such as upsetting the native plant balance, clouding water, and causing toxic algal blooms. This has now been going on for 60 years.

Since 2008, the USACE has used the Lake Okeechobee Regulation Schedule to determine the operations and releases of the lake’s water. Now, they must devise a new operating system to be put into effect in 2022 called the Lake Okeechobee System Operating Manual.

THE PROBLEM WITH LAKE OKEECHOBEE’S WATER The current problem is that Lake Okeechobee is filling with water faster than it used to, so a larger amount of water needs to be released from the lake. Unnatural high water levels are

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Photos this page: Top center - Aerial view of Lake Okeechobee discharges above the Sanibel Lighthouse (by SanCap Aerials). Photo courtesy of Captains for Clean Water.

Above - John Cassani, Calusa Waterkeepers. Photo courtesy of Calusa Waterkeeper.

Right - Leland Garvin of Garvin Law, Captains for Clean Water Board Secretary with P.J. Scheiner of Associates and Bruce L. Scheiner, Captains for Clean Water Board Member. Photo courtesy of Jim Jett Photography.

Photos opposite page: Top left to right - Captain Daniel Andrews, Captains for Clean Water. Captain Chris Wittman, Captains for Clean Water. Photos courtesy of Captains for Clean Water.

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harmful to the lake. John Cassani, an ecologist who has held the position of Calusa Waterkeeper as a member of the international Waterkeeper Alliance since 2016, says, “Rainfall drives the decision making (for the release of water from the lake).”

The water is becoming polluted both in the lake and in the runoff basins. There is not a good filtration system in place to effectively clean a large enough amount of the water. The result is the growth of algae blooms in the water, which are being dumped into the Caloosahatchee River.

An additional problem is Lake Okeechobee’s freshwater damaging the Caloosahatchee estuary. Garvin says, “In 2016, the pure volume of water discharge from Lake Okeechobee was incredibly destructive to our salt water estuary.”

It is also argued the harmful algal blooms are not only damaging the Caloosahatchee, but are also driving away tourists and impacting home values.

There is also a host of health problems associated with the algal blooms. It is believed high levels of toxins can affect the gastrointestinal tract, liver, nervous system and skin.

Scheiner’s research led him to understand the connection between Lake Okeechobee and the Caloosahatchee River along with the volume of discharges from the lake. He says, “It was really shocking to me that I grew up here, was a water user, and didn’t know any of this.”

He goes on to say he was even more August 2021

shocked to know “the problems are man-created and are amenable to being addressed, but they weren’t being addressed.”

Scheiner recognized the conversation around water quality was being driven by special interests combined with lack of public awareness and empathy. He decided he could contribute to a solution by creating Public Service Announcements (PSAs). He recruited his father, Bruce Scheiner, and their law firm video production team, Foster Productions, to help produce, create, and air the PSAs. Meanwhile, Garvin was already questioning the funding motives of agricultural interest groups and he had taken his message to social media. He was regularly posting online about water quality issues. He says, “None of the existing fishing conservation groups were getting involved.”

He goes on to say, “No one ever wanted to say anything about this because they were concerned about the impact on tourism.”

A SEARCH FOR SOLUTIONS Scheiner took notice of Garvin’s efforts and reached out to him about the PSAs. A friend of Garvin’s put them in touch with Daniel Andrews, a charter boat captain who was also tackling the water quality issue. Along with Chris Wittman, the group created the nonprofit organization Captains For Clean Water. Andrews is the Executive Director of the organization and Wittman is Director of Outreach & Engagement. Garvin and RES GESTAE

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Scheiner are Board members.

Their mission is to advocate for the elimination of harmful, large-scale Lake Okeechobee discharges. Scheiner says, “Our initial strategy was to just educate and inform people.” Together, they moved forward with the PSAs for that exact purpose.

Garvin says they all became even more passionate when they formed the organization. “The collective magic started to happen.”

Cassani says, “Where do you begin on solutions? It’s a complex problem.”

Cassani agrees with many that a key part of the solution is looking at agriculture more closely. He says, “We can be managing pollution at the source.”

Garvin and Scheiner believe solutions include irrigating south of the lake and cleaning and storing the lake’s runoff water more effectively.

Garvin and Scheiner are both proud of what Captains For Clean Water

has accomplished already. Scheiner acknowledges an awareness campaign is “a long, slow process”, and he says, “Policy makers are absolutely doing more.”

Scheiner points to a reservoir cleaning project that took place a few years ago in the agricultural area south of the lake.

“The voices we added to the chorus helped get it done.”

Scheiner also believes the USACE is responding to the increased attention to the Lake Okeechobee water runoff issue, which is critically important as the USACE is creating the new Lake Okeechobee System Operating Manual.

Lee County Commissioner Chair Kevin Ruane has been actively advocating for better water quality in Southwest Florida for years. In May, the commissioners sent a letter to the USACE expressing their disappointment with the present water management decisions. At the time, Ruane said, “Thought we needed to be a little bit more aggressive because our passivity, if that is such a word, has not

gotten us to where we would like it to be.”

As a result of the letter, Ruane has been having conversations with Colonel Andrew Kelly with the USACE. The commissioners also say they plan to have more discussions, briefings, and workshops around the water quality issues.

Both Scheiner and Garvin are proud they have been able to create a bipartisan organization to tackle these issues. Scheiner says, “I think this issue was previously perceived to be more a Democratic Party rather than a Republican Party issue. There was no group that was really on top of this issue that wasn’t perceived as a liberal environmental group. This has become more a bipartisan issue, and it should be.”

Scheiner says, “Due to the awareness, there has been more progress in the last few years.”

Garvin says, “There’s a thirst for more success.”

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special feature

SO YOU THINK THERE IS A FAMILY LAW “EMERGENCY?” NOT SO FAST! by honorable lee a. schreiber

T

Common sense dictates that with matters of life and death, call 9-1-1!

That a parent is withholding a child from other does not qualify as “irreparable harm.”

his article hopes to educate family lawyers about the Lee County Family/”DR” Divisions’ collective judicial thoughts on what constitutes a true “emergency” warranting expedited Honorable Lee A. Schreiber or emergency consideration for scheduling family court matters. What Rule 5.215, Fla. R. Jud. Admin. provides you/your client may think is an emergency that when an attorney signs a document, is not necessarily in the eye of the the attorney is certifying that (s)he read beholder/judge. Failure to plan ahead does the document and there is “good ground” not constitute an emergency on our part. to support the document to the best of Filing a motion and taking no action on it the attorney’s knowledge, information and only to later suggest it needs “emergency” belief. If, after careful consideration, you treatment will, by the passage of time, not believe in good faith that a true emergency likely qualify as an emergency. exists, the better practice is to file a verified Loudermilk v Loudermilk, 693 So. 2d 666 pleading or motion. State the facts briefly (Fla. 2d DCA 1997) and the cases cited and with specificity. Even this may not therein are instructive. Entering ex-parte eliminate the “good ground” rule. Believe it orders without notice requires an actual or not, clients don’t always tell you (or us) emergency situation such as where a child the truth. Don’t be blind-sided. is threatened with harm or where the opposing party plans to improperly remove We are experiencing a significant influx of “emergency” motions. Most are a child from the state. not legally sufficient to qualify for an Even if there is an actual and imminent ex-parte order and many are legally credible threat of harm to a child, the insufficient for emergency hearing time.

Department of Children and Families is the Applications invoking the emergency emergency child safety agency and should powers of the family court are a privilege, be contacted. Section 39.201(1)(a), Florida not an entitlement. These “emergency” Statutes provides that all persons are requests require a fairly immediate mandatory reporters of child abuse. The screening for an actual “emergency.” child abuse hotline telephone number is: Unfounded emergencies take time away 1-800-96ABUSE. from the true emergencies and misuse The 20th Judicial Circuit Court of the process is disrespectful to your Administrative Order 2.17 gives further colleagues who properly screen for true guidance as to what qualifies for an “emergencies.” Those attorneys who abuse emergency such as “matters of life and the emergency application process by death or instances of irreparable harm.” not carefully reviewing the allegations

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and giving sound legal advice for how to address the allegations may unwittingly be undermining their credibility with the client, colleagues and the court.

Motions for emergency child pickup orders must be verified and require the existence of a child custody/timesharing order being violated, with limited exceptions. Putative fathers of a child born out of wedlock have no standing to bring a motion for child pickup order where there is no court order awarding timesharing. See, Section 744.301 (1), Florida Statutes. A child pick up order may not be used as a vehicle by which to seek an initial custody determination. See, Williams v Primerano, 973 So. 2d 645 (Fla 4th DCA 2008) and Perez v Giledes, 912 So. 2d 32 (Fla. 4th DCA 2005).

Domestic violence injunction petitions are heard on a dedicated docket, so those matters are not addressed here. Domestic violence petitions require routing through the Lee County DV Unit as that office is designed to expedite paperwork and coordinate service with law enforcement.

True emergencies can almost always be addressed through DCF or law enforcement. Renaming your motion as “expedited” or “urgent” does not change how judges assess the urgency of a matter. “Not so fast” means stop, assess the allegations from the finder of fact’s perspective, and advise your client accordingly, especially when you/your clients have not availed yourselves of these alternate methods for seeking emergency protective relief. We trust you will find this article instructive for your family law practice.

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guest attorney

The Room Where It Happens – Getting to Yes in Mediation by denise wheeler wright, esq.

M

ediation is an effective alternative to litigation because it provides the parties with control, saves everyone time and money, and is confidential. However, getting to a resolution requires both sides to compromise. Before that can happen, the parties must get into the room where it happens. As the song goes in Hamilton, “you don’t get a win unless you play the game.” In this case, you can’t get to a win-win unless everyone agrees to get into the room. Once there, the moves you make will determine whether you get a resolution of the dispute.

Virtual Mediation In the midst of Covid-19, many parties were unwilling to get in the same room with the opposing parties, their attorneys, the mediator and perhaps even their own attorney. Zoom (and other similar online platforms) provided a solution. While there is a benefit to getting together in person in the same room, there are some significant benefits to virtual mediation.

One of those advantages is that it is easier to get the decision-maker in the room because of travel requirements and time commitments involved. Sometimes, the ultimate decision-maker will delegate limited authority to a designee who attends mediation because they are too busy to travel or to devote an entire day to the mediation process. That person is then reluctant or unable to go beyond the limited authority granted. Online mediation eliminates travel and frees up the participants to conduct other business during downtimes. Accordingly, higher-level representatives and claims

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representatives may be more willing to get into the room where it happens.

Participation by the ultimate decisionmaker allows for greater compromise as new information is shared.

How Much Information to Share At mediation, unlike litigation, the parties can decide what information to share and when. Depending on the stage of litigation, from pre-suit to after the discovery deadlines have passed, the parties may not have information to support their claims or defenses. Parties often resist giving “free” discovery to the other side. While sharing information before taking a plaintiff’s deposition can be risky, it is an uphill battle to convince the other side to alter their view of the case without evidence to support one’s position. Bringing evidence in the form of documents and witness statements can drastically alter the course of the mediation. Some claims and damages can be eliminated from the discussion when conclusive evidence is shared.

Alternatively, damages in a higher range may be on the table with supporting evidence. Sharing evidence with the mediator and being willing to share it with the other side can improve the chances of getting to yes.

responses from rational thinking to flight/ fight responses. A skilled mediator will diffuse emotional situations and move the parties towards a mutually agreed-upon resolution. At times it may seem like the mediator may not be sympathetic to your client’s position or may be aligned with the other side. Rest assured, a good mediator will explore the weakness of the other side’s position and the risks of going forward equally in the other room. An experienced mediator needs to help the parties reassess expectations. Trusting the mediator to share pertinent information and including the mediator on strategy decisions can improve the chances of a continued dialog and ultimately getting to a yes from both sides.

Conclusion As the Hamilton song goes: No one really knows how the Parties get to yes The pieces that are sacrificed in Ev’ry game of chess We just assume that it happens But no one else is in The room where it happens I don’t know about you, but also like the song goes—I wanna be in the room where it happens.

Trust the Mediator Knowing how to present information in a way that minimizes emotional overreactions and elicits compromise is difficult without being in both rooms. The mediator is the only one who gets to be in the room where the decision happens— which is both rooms. The mediator can observe the parties and their counsel and gauge their emotions and responses to the process. Parties have a range of LeeBar.org

Denise Wheeler Wright is the owner and founder of Wright Mediation, Inc. After spending 24 years litigating business disputes, she now mediates all types of civil claims and disputes.

Denise also conducts workplace investigations regarding complaints of harassment, discrimination, hostile work environment, fraud and improper conduct. She can be reached at denise@wrightmediation.com or wrightmediation.com

August 2021

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the dish

WHISKEY CREEK STATION offers old and new, and the flavor is Huge The menu is quite extensive, which was unexpected. I decide to indulge in a glass of wine. I order the red blend and Jessica orders a white wine. We glance over the menu and decide we should try the “Cool Breeze Calamari” appetizer. We figure we can judge the meal based on that because it is easy to overcook calamari.

by lauren baugh

F

or those of us who are from Fort Myers, or adoptees of the area, we know Whiskey Creek well; not only the actual creek itself but the neighborhood and surrounding areas also. We bought gas or had an oil change at Chuck's Whiskey Creek Service and often would celebrate St. Patty’s Day next door at Clancey’s.

As the saying goes, “Those were the good ol’ days.” Now Chuck's has been sold to someone I do not know and I no longer frequent it. Clancey’s has also been sold to someone I do not know, and it’s now called Whiskey Creek Station. I was hesitant to give it a try, but I heard from a few foodie friends that it was worth the stop, so I arranged to meet my friend, Jessica, at the restaurant.

I pull into the same small parking lot as Clancey’s, and they now have a patio like you would in your own backyard, so it is welcoming for sure. We walk inside and are greeted by a young girl, high school-aged. She is casual and welcoming; clearly from the area. She brings us to the same booth I sat in last time I was in Clancey’s! Well, it’s the same spot, new booth. We look around and it feels the same as before, but a newer version.

Clancey’s was dark and not nearly as

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Photo above: Exterior of Whiskey Creek Station, formerly known as Clancey's.

Photo right: interior.

welcoming as the brightly lit Whiskey Creek Station. I look around and see familiar faces: friends from the YMCA, parents of kids at my daughter’s school and neighbors. It is clearly a local hangout, which I like.

Photo above: Cool Breeze Calamari - lightly coated fresh calamari with poblano, bell peppers, onions, and chorizo, served with tomato coulis and sriracha aioli.

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We are pleasantly surprised when the calamari arrives at the table. It is presented on a plate with 2 sauces (fun fact: I LOVE sauces; after all, variety is the spice of life) and what appears to be fried vegetables and some type of meat. This is intriguing. There are red onions, hot peppers, chorizo and bell peppers mixed in. We try those first, and they are tender and delicious. We then dig into the calamari, which is cooked to perfection and delightful! The sauces are unique in flavor; one a spicy aioli and the other a tomato coulis sauce. They pair perfectly with both the calamari and veggies.

the spicy aioli from the calamari appetizer and this is the way to go for sure. The light and airy fish, on the brioche bun with the crisp lettuce, then the aioli, is what puts it over the top!

After all that food, there is no way we can order any dessert, but their dessert menu has some amazing items on it. Next time I go back, I will save room to try their homemade flan or churros!

Their menu is as eclectic as the space is.

They have some old Clancey staples and some very new, fresh and unique dishes on the menu as well. I cannot wait to go back and try a few more dishes. This will be a go-to place for sure, so do not pass this place by. While this restaurant looks unassuming and small outside, the flavor is HUGE!

Jessica decided to order the “Clancey’s Fish and Chips." She is not from here, so she never went to Clancey’s. She wants to try a meal that must have been so good, the new owners kept it on the menu.

This is not just any fried fish, though; it is handbattered haddock. The batter is delicious and light, and the fish is just as delicious and flaky. It is served with coleslaw and chips aka fries, which are both delicious.

I chose something I have tried at just about every restaurant in town: a fried fish sandwich. This one is a grouper sandwich, and they offer it in 4 ways: grilled, fried, blackened or crunchy. I went with fried, and this is the same batter as the fish and chips. It is light and airy and delicious. I decide to add

11481 McGregor Blvd.

Fort Myers, FL 33919 Monday - Friday 11 a.m. – 10 p.m.

Saturday - Sunday 8 a.m. – 10 p.m.

Photos above top to bottom: Clancey's Fish and Chips - Atlantic cod fillet dipped in homemade beer batter and fried golden brown, served with fries. Fried grouper sandwich with fries.

Prime Rib with asparagus, baked potato and side of au jus and a lobster tail. Sweet chili scallops with fettuccine tossed with spinach, tomatoes, corn and mushrooms and alfredo parmesan sauce.

Photo above top right: Pork chops over mashed potatoes and side of sautéed spinach, mushrooms, tomatoes and corn, finished with chipotle glaze and pineapple salsa.

August 2021

239.482.3241

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Lauren Baugh is the Executive Director at Lee County Bar Association and can be reached at lauren@leebar.org.

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We don’t judge. After all, we’re litigators. And whether your case seems like a small stone or a large gem, we’ll approach it with the same single-minded focus we bring to every medical malpractice case. So if you have a client with a legitimate medical malpractice case, regardless of the size, trust us to treat it with the care and precision it deserves.

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The Legacy Continues

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member spotlight

Sheldon Finman, Esq.

1. After years of playing racquetball and alpine skiing, I have had many injuries, resulting in 3 knee surgeries, 7 shoulder surgeries, and spinal fusion. I am still playing and skiing.

2. While at Plant High School in Tampa, the girl next door, Sue Ellen, and I won all the dance contests at proms. Our trophies were shining silver dollars.

3. A fellow high school baseball player sent me a photograph, which I display on my desktop under the glass cover. He and I, as teenagers, are posing on the bowling lanes with an adult man, as the three remaining finalists in the City of Tampa bowling tournament.

4. I set the standard for my family growing up, being the first family member to serve in the military, to go to law school, to have tattoos and to have motorcycles.

5. My first motorcycle purchase, a 1961 Ducati, resulted from me being banned from having a car on campus at University of Florida my freshman year. Ironically, in my junior year, I served as Chief Justice of the student traffic court.

Our firm handles cases throughout the Southeast. We have the resources and experience to litigate any size PI case.

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Patrick Kelleher, Esq.

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100 club Is your firm part of the 100 Club? Any firm with two or more attorneys and 100% membership in the LCBA qualifies.

Absolute Law, P.A. Aloia, Roland, Lubell & Morgan, PLLC. Arend & Sisk, P.A. Associates & Bruce L. Scheiner, P.A. Banker, Lopez & Gassler, P.A. Boy Agnew Potanovic, PLLC. Boyle & Leonard & Anderson, P.A. Burandt, Adamski, Feichthaler & Sanchez, PLLC. Calvo & Calvo, Attorneys at Law Cole Scott & Kissane, P.A. - Fort Myers Coleman & Coleman, PLC. Freidin & Inglis, P.A. Garvin Law Firm Geraghty, Dougherty, Edwards & Stockman, P.A.

Goldberg|Noone|Abraham Personal Injury Atttorneys Goldstein, Buckley, Cechman, Rice & Purtz, P.A. GrayRobinson, P.A. Green, Schoenfeld & Kyle, LLP Hahn, Loeser & Parks, LLP Henderson, Franklin, Starnes & Holt, P.A. John Webb Legal Group, P.L. Kelleher Law Knott Ebelini Hart Law Offices of Dennis L. Webb, P.A. Law Offices of Michael M. Raheb, Criminal Lawyer Law Offices of Scott T. Moorey Lee County Legal Aid Society, Inc. Light Path Law, P.A.

Men's Rights Law Firm O'Halloran & Simmons, PLLC Osterhout & McKinney, P.A. Patrone, Kemp & Bentley, P.A. Pavese Law Firm Roetzel & Andress, L.P.A. Rubinstein & Holz Scarmozzino / King Trial Lawyers Sheldon E. Finman, P.A. Sheppard, Brett, Stewart, Hersch, Kinsey & Hill, P.A. Spivey Law Firm, Personal Injury Attorneys, P.A. Strayhorn and Persons, P.L. Viles & Beckman, LLC Zinn Law If you feel your firm is eligible, email a listing of your attorneys to admin@leebar.org and we will let you know.

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in the news Hahn Loeser & Parks LLP was ranked among the nation’s top 10 Immigration Law Firms in 2021 by ManageHR Magazine. The July 2021 issue of Manage HR served as the magazine’s Immigration Law Firms Edition. It describes its top 10 firms as: “Frontrunners in the market that provide a wide span of features.”

According to ManageHR, “Hahn Loeser & Parks LLP is a full-service law firm that excels at providing immigration-related services.”

Henderson, Franklin, Starnes & Holt, P.A. announces that Florida Civil Trial Expert Michael Corso was a panelist at the Florida Defense Lawyer’s Association’s Liability Claims Conference in Orlando on June 17. Corso, along with attorney Jeffrey James of the Banker Lopez Gassler law firm, presented “Avoiding Legal Malpractice.” In addition to sharing analytical data from the ABA Standing Committee on Lawyers’ Professional Liability Study, the panelists discussed recent trends and Florida law governing professional liability.

Rachael S. Loukonen, a Partner at Cheffy Passidomo in Naples, was named “Woman Lawyer of the Year” by the Collier County Women’s Bar Association. The Collier County Women’s Bar Association presents the Woman Lawyer of the Year Award annually to a female lawyer who has excelled in her career, overcome traditional stereotypes associated with women, promoted the status of women within the profession, and/ or promoted the status of women in the State of Florida.

Attorney Adam Heisner has joined Goldstein, Buckley, Cechman, Rice & Purtz. Heisner has a bachelor’s degree in economics, a master’s degree in business administration, and received his law degree from Ave Maria School of Law. He started his legal career with the United States Army Corps of Engineers. He received a Bronze Star and General Letter of Commendation. After his military service, he served as an Assistant Public Defender for the 20th Judicial Circuit.

Henderson, Franklin, Starnes & Holt, P.A., announces that Shayaan (“Shay”) Raja has joined its Fort Myers Real Estate team. Raja is admitted to practice in Florida and the District of Columbia (D.C.).

Previously, Raja had a real estate practice and was a member of a global technology firm’s legal department. Raja received his J.D. from the University of North Carolina School of Law, where he served as the Senior Articles Editor for the North Carolina Journal of Law & Technology.

Henderson, Franklin, Starnes & Holt, P.A., is pleased to welcome six law students in the Summer Associate Program: Taylor Bollt and Melany Hernandez from Stetson University College of Law; Sarah Baulac and Christopher Gero-Prado from Ave Maria School of Law; Sara Jackson from the University of Miami; and Colten Thomas from Florida State University. They will supplement their law school experience with “on the job” training working as clerks in multiple practices.

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Our Dedicated Service Defines Us.

Our personal injury team advocates for the most vulnerable -- individuals who have suffered serious injuries or death. We’re deeply committed to protecting our youth, supporting families and building a safer community for all who call Southwest Florida home.

Ty Roland is the 2020 Trial Attorney of the Year

awarded by the Southwest Florida Chapter of the American Board of Trial Advocates

Evan Lubell was awarded the 2020 & 2021 Florida Super Lawyers Distinction

by Super Lawyers Magazine published by Reuters

Aloia, Roland, Lubell & Morgan, PLLC Practice Areas: +Litigation +Business & Commercial Law

Discover us for yourself at LawDefined.com.

+Class Actions & Mass Torts +Construction Law +Corporate Transactional Law +Family Law +Personal Injury & Wrongful Death

Aloia, Roland, Lubell & Morgan, PLLC is headquartered at 2222 Second Street Fort Myers, Florida 33901 info@lawdefined.com + 239-791-7950

+Property Damage +Real Estate Law +Wills, Trusts, Estates & Probate

Proud Southwest Florida Chapter members August 2021

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