JULY 2019
THE OFFICIAL AWARD-WINNING PUBLICATION OF THE LEE COUNTY BAR ASSOCIATION
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CONTENTS
features 24 Experience Florida
Hidden gems off the beaten path by Chuck Myron
28 Motions for
Sanctions Under F.S. §57.105
by Matthew S. Toll, Esq.
On the cover: Photo and typographic composition featuring some of Florida's best-kept secrets. Cover credit: April Bordeaux
24 departments 6
Letter from the President by John Webb, Esq.
8 Letter from the Executive Director
30 The Dish
The Saucy Meatball by Kathy Smith, Esq.
by Lisa Poulin
10 Calendar of Events 12
Ethically Speaking
14
Practice Section
16
by Henry Lee Paul, Esq.
Real Property, Probate and Trust Law by Alexandra Kleinfeldt, Esq.
YLD Spotlight
by Nicole Brunswick, Esq.
18 Attorney Guest Column
Pro bono committee putting 'social' in social service by Shanthy Balachanthiran
20 Legal Lens
Diversity and Inclusion Workshop & Luncheon
22 Attorney Guest Column
4
30 36
38
5 Things You Don't Know About Me Honorable Rad Sturgis
5 Things You Don't Know About Me Shanthy Balachanthiran, Esq.
40 Legal Lens
Miracle baseball
40 Kudos
Henry Lee Paul, Champion of Professionalism
Lee County Association for Women Lawyers by Kayla Richmond, Esq.
42 #KindLee Community Spotlight Bedz for Kidz
28 100 Club
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⚖ July 2019
In The News
AD DIRECTORY Barbara M. Pizzolaato, P.A. 31 Boy, Agnew, Potanovic 19 Brad Jessen, Edward Jones 29 Business Observer 11 Calvo & Calvo Attorneys at Law 21 CONRIC PR & Marketing 42 CopyLady IFC Copy IT 23 DeMine Immigration Law Firm 11 Denise Kennedy 39 Direct Impressions 43 Donna Tisch 43 Edison National Bank BC Fort Myers Court Reporting 38 Garvin Law Firm 45 Greenwire Technology Solutions 19 Henderson, Franklin, Starnes & Holt, P.A. 13 Joe Viacava Law IBC Kelleher Firm 21 Kempton P. Logan 31 Law Firm of Scott T. Moorey 39 Law Offices of Dennis L. Webb 23 Leonard P. Reina 41 Leslea Ellis, LLC 41 Livingston Loeffler, P.A. 21 Markham Norton Mosteller Wright & Company P.A. 9 Markham Norton Mosteller Wright & Company P.A. 15 McHale, P.A. 23 Member-At-Large Nominations 43 Men's Rights Law Firm 29 Merit Court Reporting, Inc. 28 Morgan & Morgan 7 Musca Law Office, Inc. 3 Niehaus Business Services 13 REAS, Real Estate Advisory Services 37 Responsive Occupational Rehabilitation 43 Robins/Kaplan, LLP 37 Roetzel & Andress 18 Sexto Productions 45 Sheldon E. Finman, P.A. 39 Spivey Law Firm, P.A. 5 Sproat Workplace Investigations 9 Stockman Mediation 29 The Historic Dean Building 46 The North Law Firm, P.A. 15 Total QuickBooks Solutions 36 Veranda Restaurant 41 Von Ahn & Associates 37 William DeForest Thompson Jr., LLC 11 Wright Mediation 19
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July 2019 âš– RES GESTAE
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LETTER FROM THE PRESIDENT It is hard to believe we are already at the halfway point of my term as president, but it has been an exciting journey thus far. In reflecting upon the past six months, I am very proud of the progress we have made in our efforts to provide more opportunities for involvement and an overall greater value for our members. We have been blessed with tremendous support and participation from our membership, which has been key to our success, and we look forward to maintaining and building upon our positive momentum. In the past two months, we have enjoyed remarkable attendance at our Law Week Awards Luncheon as well as the Diversity and Inclusion Workshop and Luncheon, and the LCBA Foundation’s Annual Charity Golf Tournament fielded a record number of golfers. Generating these increases in attendance is no small feat, and they certainly did not come by accident. The members of our respective committees for these events, along with volunteers, staff and sponsors, dedicated a significant amount of time and effort into designing, planning and promoting the events, and the results speak for themselves. We are truly grateful for all who were involved. As we embark on the second half of the year, we look forward to identifying and implementing ways to enhance your membership experience on leebar.org. We’re also preparing for our inaugural Health and Wellness Luncheon on September 20, which will be followed that evening by the first-ever “Downtown Dash,” a 1-mile run through the heart of downtown Fort Myers held in conjunction with the Fort Myers Track Club and the River District Alliance. Additionally, our Pro Bono Committee will continue meeting on the fourth Thursday of each month in anticipation of our community service “Dress for Success” event and social afterward on July 27, as well as the Pro Bono Awards Luncheon in October. We look forward to seeing you at these and other upcoming events. Further details will continue to be emailed to you periodically through our “News You Can Use,” and they will also be available at leebar.org. In the meantime, I wish you and yours a safe and enjoyable rest of the summer. John C. Webb, Esq. john@johnwebblegal.com | 239.313.7362
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LEE COUNTY BAR ASSOCIATION ADMINISTRATION Executive Director - Lisa Poulin Lawyer Referral Service Coordinator - Kheila Perez
EXECUTIVE COUNCIL PRESIDENT John Webb, Esq.
SECRETARY Tiffany Pereira, Esq.
VICE PRESIDENT Matt Roepstorff, Esq.
TREASURER Blake Hampton, Esq.
BOARD MEMBERS
Kathy Smith, Esq.
Peter Knize, Esq.
Spencer Cordell, Esq.
Michael-Anthony Pica, Esq.
PRESIDENT EMERITUS - Daniel J. Endrizal III, Esq. YLD PRESIDENT - Nicole Brunswick, Esq.
COMMITTEE CHAIRS
PRACTICE SECTION CHAIRS
BENCH-BAR GALA
ALTERNATIVE DISPUTE RESOLUTION
Danielle Butler, Esq. DIVERSITY AND INCLUSION
Ita Neymotin, Esq. and R. Noelle Branning, Esq. HEALTH AND WELLNESS
John Miller, Esq. and Joel Hyatt, Esq. HISTORY
Jenna Persons, Esq. and E. Bruce Strayhorn, Esq. #KINDLEE
Amanda Bartley, Esq. and Kelly L. Fayer, Esq. LAW RELATED EDUCATION
T. Rankin Terry, Esq. LAW WEEK
Hon. John S. Carlin
Anne Dalton, Esq. and Bill Merchant, Esq. APPELLATE LAW
Alex Brockmeyer, Esq. and Matthew Irwin, Esq. CRIMINAL LAW
Marisa Boysen, Esq. and Leah Harwood, Esq. ELDER LAW
Blake Hampton, Esq. and Amy McGarry, Esq. FAMILY LAW
Magistrate Gilberto Perez and Kati Calvo, Esq. GENERAL CIVIL AND BUSINESS LITIGATION
George Knott, Esq. and Carlos Kelly, Esq.
LCBA FOUNDATION CHARITY GOLF TOURNAMENT
LAND USE AND GOVERNMENTAL LAW
Shannon Puopolo, Esq. and Kenneth A. Jones, Esq.
Erica Woods, Esq. and Sarah Spector, Esq.
MOCK TRIAL
REAL PROPERTY, PROBATE & TRUST LAW
Shaina Zuppke, Esq. and Eunice Gedeon, Esq. PRO BONO
Andrew Banyai, Esq., Blair DeMinico, Esq. and Shanthy Balachanthiran, Esq.
Kenneth Kemp, Esq. and Jennifer Hammond, Esq. SOLO & SMALL FIRM
Conor Foley, Esq. and Victor Bermudez, Esq. TORT LITIGATION
Preston John (PJ) Scheiner, Esq.
July 2019 âš– RES GESTAE
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LETTER FROM THE EXECUTIVE DIRECTOR July marks the oneyear anniversary of the launch of our new lawyer referral software, community.lawyer. The digital portal offers efficient access to all your pending cases. It’s easy to use for attorneys, the public and those of us in the LCBA office. As a two-person outfit, it was a great move to make for us. Kheila Perez, our lawyer referral service coordinator, says it has saved her so much time that she now puts toward other administrative needs within the office. If you are a solo or small firm, we encourage you to join or at least try it free for 30 days. The annual fee is $150, and potential clients pay a $50 administrative fee for a consultation. The attorney keeps the first $500 from the client if they accept the case, and we receive 10% of the fees collected after that. There is no administrative fee charged for contingency-based cases like medical malpractice and personal injury. We also handle low fee panel cases. If an attorney accepts one, they would receive 100% of client fees. Thanks to the active attorneys in our lawyer referral service, the program has doubled in revenue from this time last year. We greatly appreciate your support! We currently need attorneys in the following areas of law: administrative and governmental, admiralty, civil rights, computer, elder, environmental, insurance, labor and employment, medical and dental malpractice, Social Security, tax, veterans’ rights, and workers’ compensation. If you want to build your client base, we would love to have you in the program. And if you are already enrolled, it’s time to renew your membership for 201920. Please contact Kheila at LRS@leebar.org or 239-3340047, ext. 101.
SERVING THE CITIZENS AND LEGAL COMMUNITY OF LEE COUNTY SINCE 1949
239.334.0047 resgestae@leebar.org
Staff
PUBLISHER
Connie Ramos-Williams | 239.690.9840
EDITOR-IN-LAW
Tiffany Pereira, Esq.
MANAGING EDITOR Chuck Myron
CREATIVE DIRECTOR April Bordeaux
ADVERTISING DIRECTOR Linda Fiore | 239.690.9840
FEATURE WRITER Chuck Myron
CONTRIBUTING WRITERS John Webb, Esq. Lisa Poulin Henry Lee Paul, Esq. Alexandra Kleinfeldt, Esq. Nicole R. Brunswick, Esq. Matthew S. Toll, Esq. Kayla Richmond, Esq. Hon. Rad Sturgis Shanthy Balachanthiran, Esq.
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©2019 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.
Lisa Poulin, Executive Director LPoulin@leebar.org | 239.334.0047 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, Lisa Poulin at lpoulin@leebar.org or 239-334-0047.
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CALENDAR OF EVENTS Dates of some practice section meetings have not been confirmed. Check leebar.org for details!
JULY
4
Independence Day
LCBA office and courts closed
12
Real Property, Probate and Trust Law Brown Bag Lunch Meeting
Noon-1 p.m., Lee County Justice Center, Courtroom TBA, 1700 Monroe St. The discussion will center on irrevocable trusts.
LCBA Young Lawyers Division Happy Hour 5:30-7 p.m., 10 Twenty Five, 33 Patio De Leon. Registration is required at leebar.org.
13
LCBA Pro Bono Committee Meeting
Noon, Green Cup Café, 1412 Dean St., No. 100.
27
Lee YLD Holidays in July
10-12:30 p.m., 14181 S. Tamiami Trail, Suite 140. The Lee YLD is
partnering with the Children’s Network of Southwest Florida to provide local foster children with some holiday fun. Volunteers are needed. Contact Nicole Brunswick at nicole@itsmylegalright. com to assist. RSVP to eunice@ leecountylegalaid.org.
AUGUST
2
Lee YLD Lunch and Presentation
Noon-1 p.m., Lee County Public Works, first floor conference room, 1500 Monroe St. Gail Lamarche will moderate as Aaron Bowles, Kenneth Crooks, and Jessica Thomas share their unique perspectives on how their firms help young lawyers succeed. The Lee YLD will provide lunch. RSVP at leebar.org or to Nicole@itsmylegalright.com.
8 9
Criminal Law Practice Section Meeting
Noon-1 p.m., The Twisted Vine, 2214 Bay St.
Real Property, Probate and Trust Law Brown Bag
Lunch Meeting Noon-1 p.m. Lee County Justice Center, Courtroom TBA, 1700 Monroe St. The discussion will center on recent developments in planning for IRAs, insurance and employee benefits.
22 Meeting
LCBA Pro Bono Committee
Noon, Green Cup Café, 1412 Dean St., No. 100.
29
Land Use and Governmental Law Practice Section Lunch Meeting Noon-1 p.m., Lee County Public Works, first floor conference room, 1500 Monroe St. Cost is $10.
30
Criminal Law Practice Section Meeting
10 a.m.-noon, Lee County Justice Center, Courtroom 5G, 1700 Monroe St. Terry Lenamon will present “Homicide and Complex Cases: Where to Start and Pitfalls to Avoid.” Two CLE credits are included.
Visit us online at leebar.org to see more calendar items. 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 2019
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ETHICALLY SPEAKING BY HENRY LEE PAUL, ESQ.
Referee cautions lawyers to learn HOW TO PRACTICE LAW lawyers who open a law practice as a sole practitioner. Iten warned in his Report of Referee that “The undersigned has concerns about lawyers, like respondent, who open their own firms without learning to practice law. Law school does not teach lawyers how to practice. It seems that time and time again, we encounter lapses in professionalism by lawyers who were never taken under the wing of an experienced practitioner to learn the practice of law…. respondent…failed in her obligation to keep abreast of The Rules Regulating The Florida Bar.” For those young lawyers who start as sole practitioners or in government service, I suggest that they heed the admonition. Active membership in a voluntary bar is an excellent way to develop a network to help provide mentorship. The Florida Bar also has a great many resources available to assist lawyers. FloridaBar.org offers a plethora of resources through the Practicing Resource Institute and Legal Fuel. Both The Florida Bar and local bar associations offer mentoring resources.
S
ole practitioners received a valuable warning from the Hon. Brian A. Iten, former circuit judge for the 12th Judicial Circuit. Iten served as referee in a disciplinary case against Punta Gorda lawyer Susan M. Bodden and recommended a one-year suspension, which the Florida Supreme Court recently approved (SC17-1320). Bodden was disciplined for a wide variety of misconduct, including failure to comply with trust accounting requirements, credit card processing requirements, a noncompliant arbitration provision in the fee agreement, lack of diligence, and communication. She also complicated the investigation by not timely producing requested documentation to The Florida Bar. Although it is likely that health problems aggravated the lack of attention to the detail required to practice effectively, Iten commented on the fact that the respondent was a sole practitioner who did not keep current with amendments to The Rules Regulating The Florida Bar and did not have a mentoring system. The observation by the referee is a warning to all young
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It is also important to keep up to date on amendments to The Rules Regulating The Florida Bar and new ethics opinions. Some of Bodden’s misconduct was directly related to her failure to be aware of amendments to the rules. An additional word of caution is that lawyers should learn the requirements of trust accounting. In my experience practicing in the area of lawyer regulation for many years, the failure of sole practitioners to adequately understand and comply with trust accounting requirements is widespread. In Bodden’s case, one of the violations involved commingling funds and a failure to deposit a mixed cost deposit and fee retainer into trust. Fees for unearned future services or cost deposits must be held in trust. If Bodden had viewed the free CLE course “Maintaining a Trustworthy Trust Account,” available on The Florida Bar website, she may have avoided some of her problems. ⚖ Henry Lee Paul 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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REAL PROPERTY, PROBATE AND TRUST LAW BY ALEXANDRA KLEINFELDT, ESQ.
Inheritance law and international clients: Know the differences
T
he majority of us are aware of Florida inheritance law. We know what we have to pay attention to when we are drafting a last will and testament for a client. When it comes to foreign inheritance laws, we know these laws are most likely different from the U.S. common law and state statutory requirements. Other than that, we know very little. For example, let us examine Germany’s inheritance laws in comparison to Florida’s. While Florida requires the testator to date and sign her last will in the presence of two attesting witnesses who then also sign in each other’s and the testator’s presence, Germany accepts a testator’s handwritten last will, signed and dated without witnesses present. This is called a holistic will. If we would attempt to probate such a will in Florida, the court would declare it to be invalid and the testator would then be declared to have died intestate. Germany’s Inheritance Law permits joint wills and inheritance contracts in contrast to Florida Law. In Germany, the most popular estate planning tool for married couples with children is the “Berlin Will.” By choosing the Berlin Will, spouses are mutually appointing each other as the sole heir to their estate, and their children, after the surviving spouse’s demise, are final heirs. Berlin Wills have a binding effect because of their testamentary cross designations, which are reciprocal, similar to the theory of contracts. A Berlin Will may only be canceled by mutual agreement, in writing, or when one spouse serves a revocation that has been authorized by a notary. Be mindful, a German notary has nothing in common with a notary public in Florida. Interestingly, German law does not require a probate proceeding upon the death of a decedent. Therefore, no will substitution tools are needed. Because Germany follows universal succession, all assets of a decedent automatically pass to heirs upon death. The only active role the court plays is the issuance of certificates of inheritance based on the heirs’ application and an affirmed affidavit confirming certain information about the decedent. However, the inheritance not only includes all assets but also each and every obligation and debt the decedent accrued during her lifetime, as well as debts and obligations arising out of the administration of the estate (e.g., costs for administration).
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In Florida, only the estate is liable to pay the decedent’s debts. In Germany, the heirs are directly and personally liable to pay all debts, even from their personal assets. In Florida, on the other hand, the personal representative pays the decedent’s creditors from assets of the estate before distributing any remaining portion to the heirs. Should the estate contain insufficient assets to satisfy the debts, creditors in Florida are out of luck. If an heir in Germany knows of the indebtedness, she can waive succession by timely filing a statement with the inheritance court that has jurisdiction of the subject matter. The most interesting difference between Florida and German inheritance laws is the disinheritance provision. In Florida, the surviving spouse has a right to a 30% elective share of the probate and non-probate assets of the decedent. Intentionally disinherited children do not share such a right. Germany is more generous toward disinherited children. Similar to disinherited spouses in Florida, German intentionally disinherited surviving spouses have a statutory right to claim a share of the decedent’s assets, as do children and even the decedent’s parents in the event that the decedent did not have children. The amount of the elective share for each disinherited heir in Germany is half of the intestate share. When discussing an estate plan with international clients, it is important to thoroughly understand the differences between the various jurisdictions in which the client owns property. It is unwise to “simply” distribute property from a foreign jurisdiction with the Florida estate plan. The Florida documents might not be valid in the foreign jurisdiction, leaving the client without the desired estate plan and the client’s beneficiaries without the desired distribution of assets. The result could be devastating because the foreign country’s intestacy rules will be applied. Knowledge of international inheritance laws will allow you the opportunity to better assist a multinational client base. ⚖
Alexandra Kleinfeldt is the founder of Kleinfeldt Law Firm, PLLC, focusing on estate, trust, probate, family, corporate and immigration law for her Florida and German client base. She also is a certified family law mediator. Raised in Germany, she is fluent in both English and German. Alexandra is a member of the Lee and Collier County bar associations, The Florida Bar, and the American Bar Association. Alexandra can be reached at alexandra@kleinfeldtlawfirm.com or 239-888-4291.
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YLD SPOTLIGHT BY NICOLE R. BRUNSWICK, ESQ.
LEE YLD MEMBERS STEP IT UP FOR HEALTH CHALLENGE ur focus on promoting the health and wellness of our members is going strong! This year the Florida Bar’s Young Lawyers Division has emphasized the importance of attorneys’ mental and physical health by organizing several initiatives intended to help members improve their wellbeing. Building off the success of our Health and Wellness Challenge in May, we would like to inspire members to continue with their healthy efforts and not only achieve their goals, but surpass them.
O
To recap, we began our challenge with the goal of encouraging members to complete 1 mile per day during May by doing any physical activity of their choice. In an effort to stay accountable, members had the option to sync their activity trackers or manually log their miles on our team website at Countit.com. Based off those who tracked their activities on our team website, there were almost 700,000 steps logged, which is nearly 350 miles combined! I’m sure the true numbers were even greater, as not everyone who participated in the challenge logged their miles on our website. Great job to everyone who participated and committed to a healthy lifestyle! Our Health and Wellness Challenge also included our Bikes and Brunch event, which was held on May 19 at J.N. Ding Darling National Wildlife Refuge. We had 22 participants come out to bike-ride through the 4-mile Indigo Trail, adding another 88 miles combined to our challenge total. Funds provided by The Florida Bar’s Young Lawyers Division allowed us to provide bikes, food, refreshments and tumblers to
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everyone who came. Members enjoyed the leisurely ride, taking in the local scenery and wildlife, socializing with friends, and some even continued riding afterward. Additionally, The Florida Bar’s Young Lawyers Division recognized the Lee YLD for our participation in Health and Wellness Month. Thank you to everyone who came out — it was truly an enjoyable event! Also, special thanks to the Lee County Association for Women Lawyers for joining us in this event! To continue the momentum, we encourage all LCBA members to keep the challenge going and set new goals. Instead of 1 mile a day, try to achieve 10,000 steps in a day. While that may sound daunting, there are several different ways you can get steps in, which allows you to get creative! Of course, if counting steps is not your thing, you have the freedom to create and set your own goals. The idea is to make healthier decisions and incorporate more activity in your daily life, whatever that may look like for you. If you plan to keep the challenge going, we want to hear from you and see the different ways you have committed to a healthy lifestyle. The Lee YLD has expanded to multiple social media platforms, and we are now on Instagram @LCBAYLD. Be sure to follow us there, and continue to like and tag us in any of your photos. The goal is to create a supportive community that promotes health and wellness indefinitely! We have another exciting event later this month. We will hold our annual Holidays in July charity event on Saturday, July 27 at 10 a.m. at Skyzone Trampoline Park, 14181 S.
Photo above (l to r): John Webb, Shirlarian Williams, Kristalyn Loson Atwood, Nicole Brunswick, Trevor and Vera Bergermann, Jon Scott, Michael Mongiello, Melissa Mongiello, Christina Harris Schwinn, Stephanie Bendeck, Scott Atwood, John Miller with children Harper and Jack, Tiffany Pereira, Travis Russell, Kayla Richmond. Photos right from top to bottom: Shirlarian Williams, Tiffany Pereira, Nicole Brunswick, Melissa Mongiello A group of LCBA cyclists at the Bikes and Brunch event. LCBA members fuel up at the table during the Bikes and Brunch event. J.N. Ding Darling National Wildlife Refuge provided the perfect backdrop for Bikes and Brunch.
Tamiami Trail No. 140 in Fort Myers. We are partnering with the Children’s Network of Southwest Florida to provide local foster children with some holiday fun. We are in need of volunteers to help purchase and wrap the presents and to help out on the day of the event. Last year, we had over 60 children attend and provided over 180 presents! This is an event we look forward to every year, and if you would like to volunteer, please contact me at Nicole@itsmylegalright.com. If you are interested in participating and would like to stay informed about future Lee YLD events, like and follow us on Facebook and Instagram, as we post event updates there in addition to our reminder email blasts to Lee YLD members. If you would like to be added to our email list, please contact Eunice Gedeon at Eunice@leecountylegalaid.org. ⚖
Nicole R. Brunswick is an associate at the Simmons Law Firm, P.A. Nicole focuses her practice in family law. Nicole earned her Juris Doctor from Stetson University College of Law. In addition to serving as president of the Lee YLD, Nicole serves on the Association of Family Law Professionals Board of Directors and the Lee County Legal Aid Society Board of Directors.
July 2019 ⚖ RES GESTAE
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ATTORNEY GUEST COLUMN BY SHANTHY BALACHANTHIRAN, ESQ.
Pro Bono Committee putting 'social' in social service
T
he rewards for making a difference have never been greater. The LCBA Pro Bono Committee is now offering quarterly social service activities followed by exciting opportunities for fun and networking. The first engagement is scheduled on July 27 from 10 a.m.-1 p.m. Participants will meet to help sort and organize donations at the Dress for Success SW Florida boutique store on 12995 S. Cleveland Ave., No. 153 in Fort Myers. The mission of Dress for Success is to empower women to achieve economic independence by providing a network of support, professional attire and the development tools to help them thrive in work and in life. The Pro Bono Committee event will give the organization much-needed grassroots help as it strives to enhance the lives of so many local women who dream of a brighter future. At noon, volunteers will head over to Dave & Busters at the Bell Tower Shops for lunch. For more information, please contact me at 888-582-3410, ext. 4115 or shanthy.bala@frls.org.
And remember, the Pro Bono Committee currently meets on the fourth Thursday of every month at noon at the Green Cup Café at 1412 Dean St. in Fort Myers. Florida Rural Legal Services and the Lee County Legal Aid Society present attendees with pro bono opportunities ranging from brief engagements for counsel and advice to substantive representation. Practitioners are welcome to sign up for either or both based on their availability. Florida Rural Legal Services will extend some expense coverage and malpractice insurance to pro bono practitioners who assist with representation. For more information, contact Ethel Wells of Florida Rural Legal Services at 888-582-3410, ext. 4134. ⚖
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July 2019 ⚖ RES GESTAE
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LEGAL LENS LCBA DIVERSITY LUNCHEON
Three distinguished speakers made stirring calls to action at the LCBA's Third Annual Diversity Workshop and Luncheon. Michelle Suskauer, president of The Florida Bar, addressed gender equality issues during her talk, while prominent activist Arlene Goldberg and family law attorney Brian Kruger discussed LGBTQ progress and challenges at the June 7 event.
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1. Hon. Jack Weiss, Mag. Kim Bocelli, Mag. Gilberto Perez 2. Kelly L. Fayer, Arlene Goldberg 3. Lovie Wells, Ethel Wells 4. Hon. Archie Hayward, Celestine Oglesby, Tyland Hunter 5. Arlene Goldberg, Brian Kruger, Michelle Suskauer 6. Scott Atwood, Spencer Cordell, Michael Raheb 7. Hon. Devin George, Noelle Branning, Kelly, L. Fayer, Ita Neymotin, Henry Lee Paul
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âš– July 2019
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Photo credit: Jim Jett Photography
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July 2019 ⚖ RES GESTAE
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GUEST ATTORNEY COLUMN BY KAYLA RICHMOND, ESQ.
Walk with women lawyers
I
t’s been a fantastic year for the Lee County Association for Women Lawyers, commonly known as LCAWL (pronounced “Lee-call”). In hosting over twenty events for members and the legal community at large, the organization has focused on providing social, networking and educational gatherings to propel women lawyers in their (legal) careers and recognize them for the good things they do in our community. LCAWL kicked off its year in August Tiffany Pereira, Kayla Richmond, Hon. Devin George, 2018 at Downtown Andrea Smith, Isabel Barroso Social House recruiting members both male and female alike. Although it’s a common misconception that LCAWL is made up of just women, there are actually male members who support and promote the professional needs of women in our community — and we encourage it! Through a new book club initiative, members enjoyed reading “Sisters In Law” by Linda Hirshman and “Wolfpack” by soccer star Abby Wambach. These books followed themes of successful women with diverse backgrounds and imparted that it’s OK to be a “wolf” in your profession, and to rely on your “pack” (like LCAWL members) to get you there. Through our Table for 8 mentoring events, seasoned lawyers, younger lawyers, and lawyers of all practice areas enjoyed open discussions about their careers, challenges and questions. During Photo top: Luca Maselli, Dawn Maselli, Tiffany Pereira, LCAWL CLEs, speakers Travis Russell. Photo bottom: Hon. Carolyn Swift, Hon. educated attendees on Elisabeth Adams, Hon. Lee Schreiber.
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financial planning, paths to the judiciary, and specialized topics like expert testimony in blunt force trauma cases. A highlight of the year was recognizing the Hon. Devin S. George at the annual LCAWL Judicial Reception. With 100 attendees from the legal community, we celebrated Judge George, the judiciary, Photo top: Steve Koeppel, Michelle Rygiel, Chris and donated to our Smith, Stephen Smith. Photo bottom: Alexis Barkis, local Harry Chapin Doug Kemp, Kyle Dudek. Food Bank. And of course our membership appreciation events, recognizing those who are the reason for LCAWL, were a blast. In an era of #leanin, #metoo, the gender gap, discussions of pay differentials, and the promotion of diversity in law firms in our nation, this is the organization you want to be a part of. We welcome members of any gender, background and culture in hopes of promoting the needs of women lawyers. As an organization, we are here to serve you and look forward to your continued support and participation in the new year. As president this past year, I could not have done it without a great board made up of Andrea Smith, Alexis Barkis, Stephanie Bendeck, Tiffany Pereira, Isabel Barroso, Miesha Hewitt and Daniella Sterns. Thank you to the board and our members. I’m looking forward to what our new board will do next year! ⚖ Kayla Richmond is the immediate past president of LCAWL. She is an associate attorney for Henderson, Franklin, Starnes & Holt, P.A., where she handles dissolution of marriage, child custody, paternity, child support, adoptions and domestic violence injunctions. Richmond was recognized by Florida Super Lawyers magazine (2016-2019) as a “Rising Star” in family law, and she was honored as one of only 138 Florida attorneys named an “Up & Comer” by Florida Trend Magazine’s Legal Elite in 2017.
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July 2019 ⚖ RES GESTAE
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PE
T
he work of a legal professional is never done, but July will never be mistaken for the busiest month in Florida. This slow, searing, sultry time of year is when many duck out of town for a long weekend or even just an afternoon escape. And if you’re one of them, you may be looking for a destination that isn’t the same old place you visit year after year. If so, we’ve got you covered. Some of these Florida trips are close enough to visit for the day, and the others are perfect for a weekend. All of them are alluringly distinct from the same old theme park or beach. Go indulge your sense of adventure and come back raring to go back to work — or back for another of these one-of-a-kind experiences.
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ENSACOLA
JACKSONVILLE
TALLAHASSEE PANAMA CITY
Ginnie Springs They named someplace else in Florida “Clearwater,” and that’s too bad. Clear water is a hallmark of Ginnie Springs, such that Jacques Cousteau used the words “visibility forever” to describe it. The privately owned park offers all kinds of freshwater recreation, from swimming to tubing to kayaking to cavern diving. Cedar Camping is also encouraged on the 600 acres around the springs.
Ginnie Springs Devil’s Den
Key
ginniespringsoutdoors.com 7300 Ginnie Springs Road, High Springs Hours are Monday-Thursday, 8 a.m.-7 p.m.; Friday and Saturday, 8 a.m.-10 p.m.; Sunday, 8 a.m.-8 p.m. The costs vary depending on the activity. Check their website.
Devil’s Den Spring The underground spring inside a dry cave requires Open Water Diver certification for divers, and no one is allowed to dive alone. The snorkeling rules are more laid-back, but you’re only allowed to do it for two hours a day, and no children under 6 are permitted. Still, the rewards are vast. Devil’s Den offers a peek into the underground aquifer and a trip back in time, all the way to the Pleistocene Epoch, which is when some of the animal fossils found in the den are from.
TAMPA
devilsden.com 5390 NE 180th Ave., Williston Hours are Monday-Thursday, 9 a.m.-5 p.m., Friday-Sunday, 8 a.m.-5 p.m. (last admission is at 4 p.m. each day). Diving costs $38, plus $40 for full scuba equipment rental. Snorkeling $15 ($20 on weekends), plus $10 for snorkel equipment rental.
FORT MYERS
Fort Jefferson
The centerpiece of the Dry Tortugas is an impressive hexagon-shaped 19th century fort. Never finished, never fully armed and never attacked, it functioned largely as a preventative measure to keep enemies from cutting off Gulf Coast trade and establishing a springboard. Union forces made it part of their strategy in the Civil War and used it as a prison for deserters. Ferries to and from the island provide guided tours that delve into the fort’s history. nps.gov/drto The Fort is on Garden Key within Dry Tortugas National Park, and there is no way to get there by car. Visit nps.gov/drto/ planWyourvisit/directions for boat and air travel options. The park and the fort are accessible 24 hours a day, and the Garden Key Visitor Center is open daily from 8:30 a.m.-4:30 p.m. Cost is $15 per person. Camping is an additional $15 per night.
Fort Jefferson
Dry Tortugas Key25 West July 2019 ⚖ RES GESTAE National Park
San Sebastian Winery
JACKSONVILLE
St. Augustine
San Sebastian Winery Daytona Beach
Cape Canaveral
ORLANDO
Downtown St. Augustine, where the winery is housed, is worth the trip for many reasons. The winery stands out because of its location in a nearly 100-year-old former railway building. It’s an 18,000-square-foot behemoth with 40,000 gallons of wine capacity. On the roof sits a wine, jazz and blues bar with live music on the weekends. The winery even has a theater, which is where the tours begin.
Bioluminescence Kayak Tours Melbourne Beach
sansebastianwinery.com 157 King St., St. Augustine Hours are Monday-Saturday 10 a.m.-6 p.m., Sunday 11 a.m.-6 p.m. Last tours offered at 5 p.m. Tours are free.
Bok Tower Gardens
Bok Tower Gardens
The tower itself, a 205-foot neoGothic and art deco structure built on top of a nearly 300-foot hill, is the most noticeable but least accessible part of the complex. All of it is the brainchild of Edward Bok, a confidante of Theodore Roosevelt who edited Ladies Home Journal and is credited with coining the term “living room.” No public admission is granted beyond the giant, ornate brass doors to the tower, but the brilliantly curated 250-acre garden surrounding it is more than adequate visual compensation.
Solomon’s Castle FORT MYERS
Shark Valley The Everglades
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MIAMI
boktowergardens.org 1151 Tower Blvd., Lake Wales Hours are 8 a.m.-6 p.m. Last admission is at 5 p.m. Cost is $15. Discounts available for children.
Bioluminescence kayak tours Imagine if fireflies lived underwater and gave off neon blue-green light. That’s the reality during the summer along the Space Coast, where tiny one-celled organisms called dinoflagellates come out to play. There are as many as 100,000 per liter in the water, and their light display is motion-activated, so every kayak paddle or hand in the water sets the night aglow. Several touring companies exist, though A Day Away offers a litany of options, including clear-bottom kayaks. adayawaykayaktours.com 1390 Old Dixie Hwy, Titusville (Address is for A Day Away Kayak Tours headquarters; call 321-268-2655 for directions to launch sites). Tours run every evening. Check the website for specific booking times. Cost is between $39.95 and $70 per person, depending on the type of tour.
Solomon’s Castle It’s a shimmering tower of quirk. Self-styled sculptor, painter and author Howard Solomon built a 12,000-square-foot castle covered with discarded aluminum newspaper printing plates in, frankly, the middle of nowhere. The postal address is Ona, but the castle is well outside the proper confines of the tiny Hardee County hamlet. Inside the castle are Solomon’s unusual sculptures, which constitute a menagerie of folk art gone mad. The cost includes a guided tour from Solomon himself, and a restaurant is on site. solomonscastle.com 4533 Solomon Road, Ona Hours are 10 a.m.-4 p.m. Tuesday-Sunday (closed in August and September). Cost is $24. Discounts available for seniors, veterans and children.
Shark Valley The Everglades never looked so majestic. A 15-mile loop road leads to a 45-foot observation tower within the Everglades National Park, offering breathtaking views. Plenty of vibrant nature exists along the way. Shark Valley is somewhat of a misnomer, as you won’t see any sharks and it’s not much of a valley, but plenty of other creatures make their home there, including alligators, snakes, owls and deer. nps.gov/ever/planyourvisit/svdirections 36000 SW Eighth St., Miami Hours are 9 a.m.-5 p.m. daily. Cost is $30 for park entry. Guided tram tours and bicycle rentals are offered as add-ons at additional cost. ⚖
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LEE COUNTY BAR ASSOCIATION'S 100 CLUB Absolute Law
Goldberg Noone, LLC
McQuagge Law Firm
Aloia, Roland, Lubell & Morgan, PLLC
Goldstein, Buckley, Cechman, Rice & Purtz, P.A.
Men’s Rights Law Firm
Arend & Sisk, P.A.
Grant Fridkin Pearson
The North Law Firm, P.A.
Associates and Bruce L. Scheiner, P.A.
GrayRobinson, P.A.
O’Halloran & O’Halloran, Attorneys at Law
Avery, Whigham & Winesett, P.A.
Green, Schoenfeld & Kyle, LLP
Osterhout & McKinney, P.A.
Bergermann Law Firm
Grossman Law & Conflict Management
Parvey & Frankel Attorneys, PA
Bonita Springs City Attorney’s Office
Hahn Loeser & Parks LLP
Patrone & Kemp, PA
Boy Agnew Potanovic, PLLC
Henderson, Franklin, Starnes & Holt, P.A.
Pavese Law Firm
Boyle & Leonard, P.A.
John Webb Legal Group, P.L.
Richard Johnston Law
Burandt, Adamski, Feichthaler & Sanchez, PLLC
Kelleher Firm
Robert Harris Law Firm
Buchanan Ingersoll & Rooney PC
Knott Ebelini Hart
Roetzel & Andress, L.P.A.
Calvo & Calvo
Kuhn Law Firm, PA
Rubinstein, Holz & King, P.A
Cody & Linde, PLLC
Kushner & Kushner
Sheppard, Brett, Stewart, Hersch, Kinsey & Hill, P.A.
Coleman & Coleman
LaDonna J. Cody, P.A., Attorney at Law
Simmons Law Firm, P.A.
Cole Scott & Kissane, P.A., Bonita Springs Ofc.
Law Firm of Scott T. Moorey
Spivey Law Firm, Personal Injury Attorneys P.A.
DeBoest, Stockman, Decker, Hagan, Cheffer & Webb-
The Law Office of Brantley Oakey
Strayhorn and Persons, P.L.
Martin, P.A.
The Law Office of Michael M. Raheb, P.A.
Toll Law
Florida Rural Legal Services
Law Offices of Dennis L. Webb, P.A.
Vernis & Bowling of Southwest Florida, P.A.
Fort Myers City Attorney’s Office
Lee County Legal Aid Society, Inc.
Viacava & Cantor Attorneys at Law
Garvin Law Firm
Levins & Associates, LLC
Viles & Beckman, LLC
Geraghty, Dougherty, Edwards & Stockman, P.A.
Maughan Law Group
Yeslow & Koeppel, P.A.
Is your firm part of the 100 Club? Any firm with two or more attorneys and 100 percent membership in the LCBA qualifies. 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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South Fort Myers 6213 Presidential Court Suite 100 Fort Myers, FL 33919
⚖ July 2019
Downtown 2022 Hendry Street Suite 104 Fort Myers, FL 33901
Naples 1415 Panther Lane Suite 303 Naples, FL 34109
Debbie Cail, Office Manager
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July 2019 ⚖ RES GESTAE
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THE DISH BY KATHY SMITH, ESQ.
The Saucy Meatball: Family-style Italian dining done right
superb family-oriented local Italian restaurant. The moment you walk in the door and walk past the open kitchen and into the dining area, you feel as if you are being welcomed into a family for a delicious home-cooked meal. From the family-style portraits to the warm feeling you receive from beginning to end of your dining experience, The Saucy Meatball provides the ideal place to unwind and enjoy superb food and service in a marvelous and comfortable atmosphere.
I
Mama's Meatballs appetizer
f it is one thing that the Basile Family knows, it is Italian cuisine. In the Gateway community, on the corner of Gateway Boulevard and Commerce Lakes Drive, is an impressive and delicious restaurant owned and operated by the Basile Family that proudly serves the residents and visitors of Southwest Florida. A call was made for suggestions of restaurants to feature in The Dish during a recent LCBA Executive Council meeting. As we talked, John and I realized we both had common friends within the Basile family, and that we are both aficionados of the Italian cuisine offered at The Saucy Meatball. Thus, the two of us made the obvious decision to enjoy a fantastic meal, great company, and the opportunity to rave about one of our favorite restaurants. Alex Basile, along with his father, Sal, decided to open the restaurant in the rapidly developing Gateway area to provide the perfect spot for patrons to grab a quick bite for lunch or dinner or enjoy full dining entertainment with friends and family. The atmosphere of The Saucy Meatball is exactly what you would come to expect from a well-established and
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What would a great Italian restaurant be without an incredible menu offering the most delicious and intriguing dishes to keep people coming back for more? The Saucy Meatball provides an extensive and incredible menu that consists of many popular items such as Sal’s Favorite Pasta, which is a hit with any pasta lover, and a plethora of pizzas and calzones that are some of the best in town. But you would be foolish if you didn’t start with Mama’s Meatballs or even the shrimp fra diavolo, which are very popular with those who frequent and can’t get enough of The Saucy Meatball. As for entrees, the menu at The Saucy Meatball offers a wonderful variety of specialty pizzas, or you may create your own from their large selection of toppings, as well as fantastic pasta dishes and other amazing entrees. Specials are also added to the menu at The Saucy Meatball regularly, and the chefs are relentless in their efforts of bring new and innovative ideas to the menu in order to maintain continuous excitement for what comes next. If you find yourself with enough room for dessert after the generous portions offered at The Saucy Meatball, a crowd Pasta Bolognese
favorite is the cannoli dip. This fresh take on the classic Italian cannoli dessert is the perfect way to cap off what is guaranteed to be a wonderful dining experience. On this evening, John opted for Mama’s Meatballs as an appetizer and pasta bolognese for the main course, while I decided on one of my favorites, chicken parmigiana. The Saucy Meatball exceeded even the lofty expectations of these two food enthusiasts, and the food, service and atmosphere were as superb and meticulously crafted as you will find. The staff and waiters are friendly, attentive, and take care of any needs that may arise to ensure that each patron’s overall experience is one to be remembered. If you are looking to satisfy that Italian food craving, you would be doing yourself great disservice if you do not consider dining at The Saucy Meatball. ⚖
KEMPTON P. LOGAN Certified Mediator/Arbitrator • Certified Circuit-Civil / and Federal Mediator since 1991 • Panel Arbitrator, American Arbitration Association and 20 th Judicial Circuit • Over 30 years civil litigation experience in Southwest Florida, including Personal Injury, Contract, Partnership, Real Estate, Insurance, and Probate. • Available for Court ordered or private arbitration.
• www.kemptonlogan.com
For Scheduling - Please call (239) 470-7190 or email: loganlaw@earthlink.net
Veal Chop Parmesan
12401 Commerce Lakes Dr, Fort Myers, FL 33913 SaucyMeatball.com 239.800.7172 Sunday - Thursday 11 am - 9:30 pm Friday - Saturday 11 am - 10 pm Kathy Smith serves on the LCBA Executive Council as a board member-at-large. She has been the public defender for the 20th Judicial Circuit for more than 10 years, and began her law practice as an assistant public defender in 1990. She obtained her Juris Doctor from the University of Florida and her master’s degree in public administration from Florida Gulf Coast University.
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SPECIAL FEATURE BY MATTHEW S. TOLL, ESQ.
Motions for sanctions under F.S. §57.105 A proposal for leveling the playing field and reducing abuse
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T
here is a demand for “aggressive” legal representation, and success in this business requires a balance between our duty of zealous advocacy to our clients and our responsibility to treat other lawyers with respect. As a lawyer who fashions himself as an aggressive litigator willing to take on a variety of different types of claims, I find that I am threatened in some form or fashion nearly every day of my professional life. While many of the threats are actually directed at my clients, I am often threatened personally. In and of itself, this does not bother me. Frankly, it’s what I signed up for when I joined this profession, and I certainly dish it out just as often as I take it. That being said,
I believe it is time for a good, hard look at how F.S. §57.105 is regularly used inappropriately as a tool of intimidation, and how a profession with a commitment to civility can do better. Florida subscribes to the so-called “American Rule,” whereby a prevailing party in any civil suit is not automatically entitled to recover his/ her/its reasonable attorneys fees and costs unless authorized by statute or contract. One of those statutes is Florida Statute §57.105, which allows for attorneys fees and costs to be levied against an opposing party and the opposing attorney, individually, as a sanction for taking any position during the course of litigation that is truly frivolous. With a §57.105 claim, the lawyer faces personal sanctions as a penalty for representing a client. It is a serious claim, and should be treated as such. When deciding if an opposing attorney has proffered a “truly frivolous” claim, the standard is NOT “a claim contrary to the best interest of my client.” Unfortunately, that seems to be the standard that many litigators take in deciding to pursue (or threatening to pursue) such claims. A truly frivolous claim is one that no reasonable attorney would bring. It is a claim that has no basis in fact or law and is not being made as a good faith argument for the extension of existing law. Such claims are rare, and a responsible attorney with a commitment to the truth should never face such a claim. However, I see such claims being made in the majority of cases today that involve any type of rare or unique facts or involve anything other than “cookie cutter” claims. Three recent examples of situations where I have been served with a motion for sanctions under F.S. §57.105 were as follows: Case 1 – Client buys a house to live in as her homestead. She has an inspection done, and is informed that the roof has a useful life of 15 years. The inspection determines that there may be an issue with the permitting of a guest house, but the seller assures her that there is no such issue. The client closes. A short time after closing there is a major rain, and the client quickly discovers that there are numerous roof leaks, meaning the problem should have been obvious to the prior owner. The guest house, as it turns out, does have permitting issues. I file a “Johnson vs. Davis” style of lawsuit, alleging undisclosed latent defects. My opponent’s response: §57.105 – No reasonable attorney could possibly think there is a claim here.
Case 2 – Client’s neighbor installs security cameras pointed directly at my client’s home, making his wife and daughter uncomfortable. Ultra-bright spotlights of a nature that one might find at a high school football game on Friday night in Texas are installed by the same neighbor, blinding my client when he pulls in at night. A privacy fence is installed, but with extensive cement as a footer, destroying the drainage between the properties and causing flooding on my client’s property. I file a lawsuit alleging a nuisance. My opponent’s response: § 57.105 – No reasonable attorney could possibly think there is a claim here. Case 3 – Client owns a medical spa business. His ex-wife had a list of his client’s patients and contacts on her computer. The ex-wife’s new boyfriend had access to that computer. After the ex-wife broke up with the boyfriend, this individual, who had no prior experience in the med spa business, started a competing med spa business and began to send solicitations nearly identical to my client’s advertising to all of the customers on the list that
July 2019 ⚖ RES GESTAE
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If I file a motion clearly authorized under Florida law, his response will be a §57.105. This is getting out of hand. was on the ex-wife’s computer. I file a tortious interference with business relationships claim, opining “upon information and belief ” that the boyfriend took the list from the ex-wife’s computer. My opponent’s response: §57.105 – No reasonable attorney could possibly think there is a claim here.
A new client came in a short time ago. He had broken up with his girlfriend, and they had an argument over the ownership of some Tervis Tumblers. She sought an injunction for protection for domestic violence. He denied the alleged violence. Before I got involved, the client missed his hearing, so a permanent injunction was entered in his absence. The client’s motion for rehearing was denied. I sent a letter to the opposing attorney, suggesting that I would file a motion to modify or terminate the injunction, not because my client has any desire to see the opposing attorney’s client ever again, but because my client would like to avoid losing his Second Amendment rights for life. The opposing attorney’s response: If I file a motion clearly authorized under Florida law, his response will be a §57.105. This is getting out of hand. I file §57.105s myself when appropriate. A client sold a house. Nine years later, the neighbor of the buyer built a fence that
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encroached on the buyer’s property. The buyer then sued my client under the “warranty” section of the warranty deed. In my opinion, that’s §57.105 material. Remember, F.S. §57.105 is designed to sanction lawyers who take positions that are utterly without merit, for the sole purpose of delay, harassment or to make litigation more expensive. It is not designed to punish lawyers for serving as zealous advocates. An award of attorney’s fees under F.S. §57.105 is only proper when a claim is frivolous — so clearly devoid of merit and facts as to make it untenable. Stagl v. Bridgers, 807 So. 2d 177 (Fla. 2nd DCA 2002). In Cowgill v. Bank of America, 831 So. 2d 241 (Fla. 2d DCA 2002), the Second District Court of Appeal reversed sanctions that had been imposed for making a claim that was “... arguably supported by material facts and then-existing law.” In Read v. Taylor, 832 So. 2d 219 (Fla. 4th DCA 2002), the Fourth DCA reversed an entire §57.105 fee award, because “appellant’s claims were not so completely lacking in factual or legal basis, so as to justify an award of attorneys’ fees pursuant to §57.105.” Today, the only real remedy if one is served with a motion for sanctions under F.S. §57.105 is to file one in response, claiming that the motion for sanctions itself is frivolous (the old “I’m going to §57.105 your §57.105” gambit). This is authorized under existing law. “Section 57.105(1) provides for attorney’s fees as sanctions for being forced to participate in frivolous litigation. In determining whether to award such fees, ‘[t]he [trial] court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law.’ Blue Infiniti LLC v. Wilson, 170 So. 3d 136, 140 (Fla. 4th DCA 2015) (alterations in original) (quoting Asinmaz v. Semrau, 42 So. 3d 955, 957 (Fla. 4th DCA 2010)). Motions for attorney’s fees count as ‘claims.’” See Albritton v. Ferrera, 913 So. 2d 5, 9 (Fla. 1st DCA 2005). Mark W. Rickard, P.A. v. Nature’s Sleep Factory Direct, LLC, 261 So. 3d 567, 569 (4th DCA 2018) (Emphasis added). Unfortunately, most litigators understand that judges are extremely unlikely to take action when lawyers serve each other with competing §57.105 motions. The clients end up having to pay for these disputes, most of which never should have been brought in the first place.
The clients end up having to pay for these disputes, most of which never should have been brought in the first place. As litigators, we need to understand that we are all trying to accomplish the best possible results for our clients, but that doing so does not mean that there is any need to denigrate or personally threaten our competition. We are all professionals here. As such, I have a new proposal. What if the lawyer who filed the motion for sanctions under F.S. § 57.105 is automatically held personally liable for the opposing party’s (and opposing attorney’s) legal fees and costs associated with defending the §57.105 if the motion for sanctions under F.S. §57.105 is denied after a full evidentiary hearing?
That would certainly discourage the filing and prosecution of questionable motions for sanctions, as it would give the filer some real “skin in the game.” Unless the lawyer filing a motion for §57.105 sanctions is prepared to suffer sanctions himself or herself, such motions should not be filed. A sanctions proceeding under F.S. §57.105 should only be filed when the opposing side is TRULY taking a frivolous position, NOT as a mechanism to intimidate or to drive a wedge between an opposing attorney and his or her client. ⚖
Attorney Matthew S. Toll graduated from Tulane Law School and was admitted to The Florida Bar in 2004. He opened TOLL LAW in 2011, a firm primarily devoted to assisting individuals and small business owners with real estate matters, family law cases and general civil litigation.
July 2019 ⚖ RES GESTAE
35
LCBA JUDGES SPOTLIGHT
Hon. Rad Sturgis
1. I prosecuted my future wife’s brother. He pleaded no contest and was fined $500. Belle (my mother-in-law) called her daughter, Kathy, and told her about the tall, handsome prosecutor. Kathy and I have now been married 43 years with one son, Skye, who works for Apple in Cupertino, California. 2. One of my first jobs (at age 6) was a coke route. That’s bottled Coca-Cola. All went well till I took one corner too fast and introduced my wagon and liquid load to the cement sidewalk. 3. After Kathy called for an ambulance when I had my heart attack — thereby saving my life — I promised I would learn to dance with her. She is now an exceptional, competitive ballroom dancer. My results are mixed. I have much work to do to fulfill my promise. 4. After much trial and error refinishing furniture, I gained enough proficiency to make bookcases, cabinets, drawers, beds, desks, and install doors and crown molding. 5. I never thought about being a lawyer, much less a judge. Long story, but God had a plan that He did not share with me until the “totality of the circumstances” took me in that direction. I have regularly prayed for wisdom and He has never let me down.
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RES GESTAE
⚖ July 2019
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July 2019 ⚖ RES GESTAE
37
LCBA MEMBERS SPOTLIGHT
Shanthy Balachanthiran, Esq.
1. I was born in Jaffna, Sri Lanka, at that time beset by civil war, and immigrated to Southwest Florida with my parents and sister. While growing up, at home, my parents encouraged me to speak our native tongue, Tamil, the world’s oldest language dating back over 5,000 years. I’m still fluent to this day! 2. After graduating as the IB valedictorian from Fort Myers High, I embarked on a journey, equipped with scholarships, to pursue my bachelor’s, master’s and doctorate of law at top-tier and Ivy League universities. After 18 years of studying, working and living in the Northeast, West Coast and abroad, I am excited be back home in Fort Myers with my family. 3. I love to travel and have visited six continents, totaling over 80 countries. My husband and I plan to visit the seventh (Antarctica) next year. 4. My passion is in public service law, an interest that was sparked when I volunteered in high school as a mock attorney for Teen Court at the Lee County Justice Center. 5. Music and the arts have played a significant role in my life since the sixth grade when I picked up an alto saxophone in band. Decades later, I still enjoy jamming out with friends!
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RES GESTAE
⚖ July 2019
Jackie Burrell, RPR, FPR
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39
LEGAL LENS LCBA MIRACLE BASEBALL OUTING
The LCBA went out to the ballgame on June 7 as the Fort Myers Miracle (rebranded as the Fort Myers Groupers just for the night) moved into sole possession of first place with a win over the Jupiter Hammerheads. LCBA members enjoyed the luxury suite life, watching the game in air conditioned comfort.
1. The view from the LCBA's perch in Hammond Stadium at CenturyLink Sports Complex. 2. Jordana Weiss, Hon. Jack Weiss 3. John Webb, Miracle mascot Sway 4. Spencer Cordell, Shatree'Tia Jones
2
3
4
Photo credit: Jim Jett Photography
1
KUDOS
Henry Lee Paul garners Champion of Professionalism Award
A
trusted voice within the state and local legal community is being recognized for his unyielding commitment to doing the right thing. Ita M. Neymotin, regional counsel of the Second District Court of Appeal, presented Henry Lee Paul with the 2019 Champion of Professionalism Award on June 7. The honor recognizes Paul’s pro bono work this year to organize and promote 19 seminars throughout Florida in which he spoke on the importance of professionalism, character, competence, civility, commitment and ethics in the legal profession.
who now represents lawyers in all matters before the bar. He also offers risk management services on all legal practice matters, and he represents applicants in all matters before The Florida Board of Bar Examiners. ⚖
“Henry Lee Paul is a lawyer who guides, educates, promotes and works hard in the pursuit of the highest ideals and tenets of the legal profession,” Neymotin said. “He is eminently deserving of this honor and our gratitude for lifting up all of us who seek justice and respect the law.” Paul writes the Ethically Speaking column each month in the Res Gestae. He is a former counsel for The Florida Bar
40
RES GESTAE
⚖ July 2019
John Webb, Diana Golden, Henry Lee Paul, Ita Neymotin, Linda Doggett
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July 2019 ⚖ RES GESTAE
41
#KINDLEE COMMUNITY SPOTLIGHT BEDZ FOR KIDZ
Help from LCBA members needed for children's bedding drive
T
he little girl who slept in a bathtub. The boy set on fire by his father who had to lay his burned body on a hard table. The children sleeping in their 72-year-old grandmother’s bed while she slept on a lawn chair. All of them became beneficiaries of Bedz for Kidz, a longtime passion project of Guardian ad Litem volunteer Cynthia Shafer. She began the program in 2001 after becoming frustrated that many grandparents, aunts and uncles of children from abusive homes were unable to become foster parents for those children because they couldn’t afford new beds. Shafer and her husband, John, have since delivered more than 2,500 beds to children across Southwest Florida. And every time, they include child-themed linens and a
stuffed animal to help the children adapt to their new foster homes. Shafer continues the program through the Guardian ad Litem Foundation, but she relies on community support. So, Dawn Maselli of the #KindLee Committee is engineering a bed and linen drive and calling on all LCBA members for support. Here’s what they need: • • • •
Crib sheets Twin bed sheets (in any color except black) Pillow cases Stuffed animals without button eyes (NOTE: All items must be new and still in the package.)
Attorneys are hosting three drop-off locations: Zuppke Law, 2069 First St., Suite 303, Fort Myers, WednesdaysFridays, 10 a.m.-4 p.m. The Pereira Law Firm, 1415 Dean St., Suite 107, Fort Myers, Mondays-Thursdays, 9 a.m.-4 p.m. Associates & Bruce L. Scheiner, Attorneys for the Injured, 4020 Evans Ave., Fort Myers, Mondays-Fridays, 8 a.m.-6 p.m. LCBA office, 2077 First St., Suite 207, Fort Myers, MondaysFridays, 9 a.m.-noon, 1 p.m.-5 p.m. ⚖
BR ANDING THE LEGAL COMMUNITY FOR OVER 11 YEARS.
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42
RES GESTAE
P U B L I S H I N G
⚖ July 2019
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July 2019 ⚖ RES GESTAE
43
IN THE NEWS
Peter Knize has joined the Naples Trust Company as senior vice president to the trust administration team specializing in estate settlement. He’ll work with clients from Marco Island to Tampa on their estate settlement planning and manage assets, debts and estate taxes. Knize is part of the LCBA Executive Council as a member-at-large. He holds a Juris Doctor from Nova Southeastern University and a Master of Laws in estate planning from the University of Miami.
Mary Vlasak Snell, a partner at Pavese Law Firm, recently completed a series of complimentary Life Planning Seminars in partnership with the Catholic Community Foundation of Southwest Florida. Snell was a featured speaker at 10 educational seminars in Fort Myers, Cape Coral and Punta Gorda, offering her expertise in estate planning law and probate administration. The foundation geared its Life Planning Seminars toward those approaching their senior years or retirement, as well as family members and friends who care for aging relatives and acquaintances.
Anne Dalton of the Law and Mediation Office of Anne Dalton has been reappointed to The Florida Bar Professional Ethics Committee by incoming Florida Bar President John Stewart. The committee reviews ethics opinions generated by bar staff, revises them as necessary and authorizes their release. It meets quarterly to discuss key issues in ethics. This is also the second year Dalton has served on the Ethics CLE subcommittee in charge of the Professional Ethics Committee’s CLE for The Florida Bar’s annual meeting in June.
Attorney Maritrini Soto Garcia has joined Pavese Law Firm and will be practicing real estate, condominium and homeowners’ association law, and commercial and business law. Soto Garcia earned her associate’s degree from Edison State College (now Florida SouthWestern State College), her bachelor’s degree from Florida Gulf Coast University and her Juris Doctor from the University of Florida Levin College of Law. Prior to joining Pavese Law Firm, Soto Garcia served as the executive managing editor of the Florida Journal of International Law.
Attorney Heath Gelman has joined Henderson, Franklin, Starnes & Holt, P.A. as a stockholder in the Tort & Insurance Litigation Department. He has 20 years of experience representing individuals and companies in matters of automobile negligence, premises liability, professional liability, first party insurance and wrongful death. Gelman previously served as defense counsel for a well-known insurance defense firm and later handled plaintiff personal injury matters and first-party insurance claims with one of the largest personal injury firms in the U.S.
Send us your news at ResGestae@Leebar.org. See more LCBA members in the news at LeeBar.org/in-the-news
44
RES GESTAE
⚖ July 2019
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July 2019 ⚖ RES GESTAE
45
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