Res Gestae - June 2014

THE OFFICIAL PUBLICATION OF THE LEE COUNTY BAR ASSOCIATION JUNE 2014

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Contents features

departments

re s g e s ta e

THE OFFICIAL PUBLICATION OF THE LEE COUNTY FLORIDA BAR ASSOCIATION

14

When Your Client Receives a Federal Criminal Subpoena

by Douglas Molloy, Esq.

20

6

Letter from the President

8

Letter from the Editor

Selecting an AECS Expert

Cover Feature

A Stroke of Generosity

by Nanci DuBois

10 Calendar of Events

by Robert J. Bitterli

11

22

by John D. Agnew, Esq.

by Sara Fitzpatrick Comito

12

In Memoriam

12 Family Law Matters

The Grand Illusion

by Luis E. Insignares, Esq.

16 LCAWL Annual Judicial

Reception Thank You 18 Appellate Insight

ASSOCIATE EDITOR Sara Fitzpatrick Comito CREATIVE DIRECTOR April Bordeaux

CONTRIBUTING WRITERS Sara Fitzpatrick Comito Nanci DuBois John D. Agnew, Esq. Robert J. Bitterli Luis E. Insignares, Esq. Douglas Molloy, Esq. Stacy L. Sherman, Esq. Margaret H. White-Small, Esq.

By Stacy L. Sherman, Esq. and Margaret H. White-Small, Esq.

PACE Center for Girls

by Sara Fitzpatrick Comito

30 The Dish

Gloria’s La Trattoria Café Napoli

32 The Dish List

where to meet and eat

34 On the Bench

Hon. Sherra Winesett

35 From the Bar

Keith W. Upson, Esq.

36 Real Estate

where to buy, sell or lease 38 New Members 40 Legal Lens

social scene photos

42 Legal Briefs

news and happenings

43 100 Club

RES GESTAE | June 2014

EXECUTIVE EDITOR Nanci DuBois 239.334.0047

26 Community Connection

4

PUBLISHER Connie Ramos-Williams 239.690.9840

ADVERTISING DIRECTOR Linda Fiore 239.690.9840

30

Staff Box

Is it Reviewable? Part 2

22

239.334.0047 resgestae@leebar.org

Our advertisers support the LCBA. Please let’s do our best to support them in return!

BILLING INQUIRIES 239.334.0047 Res Gestae is published monthly by CONRIC Publishing in partnership with Lee County Bar Association. All editorial, advertising and photos may be submitted for consideration through email to: resgestae@leebar.org.

We make every effort to ensure the accuracy of the information published, but cannot be held responsible for any consequences arising from omissions or errors. Opinions expressed by our writers and advertisers are not necessarily opinions shared by the LCBA, Res Gestae, or CONRIC Publishing.

On The Cover: Kenneth Jones, Esq. of Title Sponsor Roetzel & Andress, Love that Dress! Chair Kendra Sutton and Kelly Fayer, Esq. prepare for an abovepar 2014 LCBA Charity Golf Tournament to benefit PACE Center for Girls of Lee County.

Cover Photo: Julie Renner Photography Copyright© 2014. Lee County Bar Association, Inc. All Rights Reserved. No portion of the publication may be reproduced in part or in whole without prior written permission of the Lee County Bar Association. To inquire about such permission, please contact Nanci DuBois, Executive Director of the Lee County Bar Association at info@leebar.org.

Maximum Referral Fees Paid

Note from the President “All work and no play makes Jack a dull boy.”

Few movie lines evoke more powerful images. The Shining was released in 1980, yet I am certain even if you saw it on the opening weekend at the box office 34 years ago, that line immediately brings you back to images of a psychotic Jack Nicholson (playing “Jack” in the movie), with his arched eyebrows, crazed look and evil sneer, having typed that sentence over and over and over. Cooped up too long in the lodge and pressing hard on penning his latest novel, Jack had gone completely mad.

Although the phrase is now inseparable from Jack Nicholson, it’s actually a proverb that has been in circulation since at least the 17th century. Simply put, it means that without time off, a person becomes dull and boring.

Practice building is the theme of this year. It is important to remember a good work-life balance is an important piece of practice-building, too.

Specifically, building (and certainly sustaining) a successful practice cannot be accomplished without spending some quality time away from the office.

Being an attorney can be incredibly rewarding, in terms of the gratification derived from helping others, as well as financially. The flip side is the baggage of stress and anxiety that comes with it. It is a career often in topten lists of highest stress jobs, highest rates of substance abuse and highest rates of suicide.

All of us are either fortunate to have been born in Southwest Florida or wise to have moved here. People retire here in droves, and for good reason— it’s an endless playground, with beautiful year-round weather, hundreds of miles of beaches, more per capita golf holes than almost anywhere, and some of the best fishing in the world. There is no ice to chip off your windshield, no snow to shovel, and any grey days are few and far between.

Summer is upon us. Although I recognize “summer” may no longer conjure the same images and emotion as it did when we were school-age, consider for a moment when it did and why it did. Recognize the opportunities you have to enjoy in our collective back yard, and realize them on a regular basis—with your friends, your family and your clients or potential clients.

And, if you only make it out to golf one time this summer, let it be at the LCBA Golf Tournament on June 28, at Pelican Preserve. As you can read more about in this month’s Res Gestae, tournament proceeds will benefit the PACE Center for Girls of Lee County, a wonderfully deserving charity that has given new life and opportunity to many young girls in our community.

John D. Agnew, Esq. john.agnew@henlaw.com | (239) 344-1364 6

RES GESTAE | June 2014

LEE COUNTY BAR ASSOCIATION ADMINISTRATIVE TEAM EXECUTIVE DIRECTOR Nanci G. DuBois EXECUTIVE ASSISTANT Lisa Poulin LAWYER REFERRAL & PRO BONO COORDINATOR Kathy Robinson

EXECUTIVE COUNCIL PRESIDENT John D. Agnew, Esq. VICE-PRESIDENT Anne Dalton, Esq. SECRETARY Scott Atwood, Esq. TREASURER Kelly Fayer, Esq. MEMBER-AT-LARGE Daniel Endrizal, Esq.

YOUNG LAWYERS DIVISION PRESIDENT Shannon Puopolo, Esq.

COMMITTEES HISTORY E. Bruce Strayhorn, Esq. & Jenna Persons, Esq. LAW RELATED EDUCATION T. Rankin Terry, Esq. LAW WEEK Hon. John S. Carlin MOCK TRIAL Mary C. Evans, Esq. PAST PRESIDENT Mary C. Evans, Esq. PRO BONO Audrey Singelton, Esq. & Katie Berkey, Esq. MEMBERSHIP Carlos Kelly, Esq. SOCIAL EVENTS Amanda Mitteer-Bartley, Esq. & Theresa Daniels, Esq.

PRACTICE SECTION CHAIRS ALTERNATIVE DISPUTE RESOLUTION Anne Dalton, Esq. APPELLATE LAW Margaret White-Small, Esq. CRIMINAL LAW Keith Upson, Esq. REAL PROPERTY, PROBATE & TRUST LAW Kenneth Kemp, Esq. GENERAL CIVIL & BUSINESS LITIGATION Vacant TORT LITIGATION Preston John (PJ) Scheiner, Esq. FAMILY LAW Rana Holz, Esq. & Jo Ellen Kane, Esq. LAND USE & GOVERNMENTAL LAW Russell Schropp, Esq.

Personal Injury Medical Malpractice Wrongful Death Family Law

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7

Letter from the Editor This month brings us a couple of very interesting CLEs: one from the ABOTA associates with four speakers on the morning of June 6 for “Mediation & ADR: Insights from the Mediators, Bar & Bench,” and a free one on June 19 for two hours with lunch, brought to us from our Family Law Section, which is a Bar-wide “Ethics & Professionalism” course, also with four speakers.

It’s important that we connect with you regarding your Continuing Legal Education as we prepare to launch more CLEs for the remainder of the year. Please welcome our newest Committee Chair, T. Rankin Terry, Esq., as he joins us in leadership of the Law-Related Education Committee. Anyone wishing to join T’s Committee should reach out to us today to register at admin@leebar.org Lots of great happenings are forthcoming, and growing the CLE/CME opportunities for our members is among them. We will consider qualified presenters for our programs, and have begun planning now, so make sure to let us know if you are interested. Also, we are accepting donations of CLE CD sets with at least 3 months’ time remaining on them. The donor’s name will be placed on the CD set in recognition.

We have three judges who will be honored on their retirement at our Buckingham BAR-B-Q in November: Judges Sherra Winesett, Edward Volz and Mark Steinbeck. Plans are already shaping up for the November 8 event, so make room on your calendar for some fun in the woods at the Smoot property once again!

The golf tournament this month on the 28th still has room for more players and hole sponsors - and if you just want to come for the “19th hole” and lunch, a terrific Silent Auction and Live Auction will draw you in for the midday festivities.

Tickets may be ordered online for golf (lunch included), or just the lunch.

Donations of clothing for “Love that Dress” will benefit PACE Center for Girls of Lee County, and also will give you a chance to win a mini-vacation! See the Calendar, and a special feature on the tournament and our worthy charity on page 22. And, don’t forget to order your LCBA sport shirt to show your Bar pride!

At just $47.70, these Dri-Fit Nike shirts are cool and comfortable, and come in a variety of colors for men or women. A portion of the profit on shirt orders goes to our CLE Lending Library Fund.

We have very good news, regarding our website, too. It is undergoing a facelift.

Actually a completely new website will debut in a couple of months. We have CONRIC PR & Marketing| Publishing to thank for its work in developing the new site. On it, we plan to get the long-awaited Member Directory up and running with your information and photo. Please send us an updated portrait if you’d like your image displayed with your contact information, to admin@leebar.org Nanci G. DuBois info@leebar.org | (239) 334-0047 ext. 102 8

RES GESTAE | June 2014

AD DIRECTORY Allied Business Solutions 38 Ave Maria School of Law 46 Boyle, Gentile, & Leonard, PA 15 Business Observer 28 Calvo & Calvo Attorneys at Law 15 Cheffy Pessidomo 37 CONRIC PR & Marketing | Publishing 43 CopyLady IFC Corbin Henderson Company 36 Dial-a-Nurse 29 Donna Tisch 21 Edison National Bank BC Fort Myers Court Reporting 17 Freidin, Dobrinsky, Brown & Rosenblum, PA 7 Garvin Law Firm 15 Goldberg, Racila, D’Alessandro & Noone, LLC 17 Gregory N. Woods 42 Heather FItzenhagen 27 Henderson, Franklin, Starnes & Holt, P.A. 10 Hendry Street Partnership 36 Henry Lee Paul, P.A. 27 Historical Dean Building 36 Ivy Group Consultants, Inc. IBC Jason L. Gunter, P.A. 29 Joel H. Brown 21 Kevin F. Jursinski, B.C.S. 35 Kevin F. Jursinski, B.C.S. 37 Katharyn E. Owen, Esq. 33 Kuhn Law Firm 33 Kushner & Kushner Attorneys 19 Law Firm of Scott T. Moorey 11 Leonard P. Reina 19 Leslea Ellis, LLC 39 Levins & Associates, LLC 17 McHale Properties 36 Merit Court Reporting, Inc.© 38 Molloy Law 34 Musca Law Office, Inc. 3 Mutual of Omaha Bank 45 Patterson, Eskin and Ball 37 PAYCHEX 9 Royal Palm Trattoria 32 Safety One-Stop 44 She Sings for Chocolate 19 Simon M. Harrison, Esq. 28 Spivey Law Firm, P.A. 5 T3 Communications 21 The Livingston Firm 33 Veranda Restaurant 32 Von Ahn & Associates 29 Wilbur Smith Law Firm 19

Your LCBA publication is now an award-winning magazine!

Res Gestae helps you find out about events that matter to you, learn about important topics from experts within the local legal community, discover causes your colleagues are passionate about, catch up on news about attorneys and firms and so much more. Now, we’re proud to say, Res Gestae is an award-winning magazine!

CONRIC PR & Marketing | Publishing recently joined LCBA President John Agnew at the Florida Public Relations Association Image Awards ceremony to accept the prestigious Award of Distinction. The publication was honored for excellence in promoting LCBA members, informing and educating members, improving the professional image of the organization and attorneys, and generating a new source of revenue for the services the LCBA provides its members.

“I couldn’t be more proud of the work done by the CONRIC PR & Marketing | Publishing team,” said LCBA Executive Director Nanci DuBois. “Through their astute, timely and creative articles and design, our legal news magazine for Lee County Bar Association has grown from a little in-house black-and-white publication into a sophisticated, educational and well-read full color tome.”

From all of us at Team Res Gestae, thank you for your support!

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9

Calendar of Events CELEBRATING 90 YEARS: 1924 – 2014

When it comes to corporate and family immigration, we understand.

June June 6 June 6

June 13 June 19

June 28

Tulio G. Suarez, Chair

July

Florida Bar Board Certified in Immigration and Nationality Law

July 11

HENDERSON FRANKLIN PROVIDES IMMIGRATION SERVICES for individuals, corporations and any organization that employs foreign nationals either temporarily or permanently. We provide advice and advocacy on a wide range of matters, including: • Employment-based immigrant visas

• Labor Certification

• H-1B “Professional” Visas

• Non-immigrant visas

• Department of Labor/ Immigration and Customs Enforcement Inspections

• Family-based immigration visas

• Hiring of foreign nationals, including I-9 compliance

• Citizenship and Naturalization

• EB-5 Investor Visas

RES GESTAE | June 2014

July 31

August

henlaw.com • 239.344.1100 Fort Myers • Bonita Springs • Sanibel • Naples*

10

July 29

• International adoptions

Adapting. Changing. Moving forward.

©2014 Henderson Franklin Starnes & Holt, P.A.

July 11-12

* By appointment only

No LCBA Membership Meeting No Family Law Practice Section Meeting Young Lawyers Division Meeting

Noon - 1:00 pm, The Connection Bar & Grill

CLE: Mediation & ADR: Insights from the Mediators, Bar & Bench

8:30 – Noon, Hilton Garden Inn, 16410 Corporate Commerce Way, Fort Myers. $75, register Online: http:// ow.ly/x1rJS or Make checks payable to: “ABOTA” and mail to: Vicki L. Sproat; Henderson, Franklin, Starnes & Holt, P.A., P.O. Box 280, Fort Myers, FL 33902

Real Property, Probate & Trust Law Practice Section Meeting Noon to 1 pm Judge Winesett’s Hearing Room 4H

FREE Ethics and Professionalism CLE

Noon to 2 pm, Courtroom 1A, in collaboration with our very successful Family Law Practice Section. Presenters: Hon. Hugh Starnes; Anne Dalton, Esq.; and more to be announced. Sponsors for sandwiches: Fort Myers Court Reporting; Dessert: Maxwell, Hendry & Simmons Appraisers. Details at our website. Sign up early!

LCBA Charity Golf Tournament

Join Title Sponsors Roetzel & Andress, PA in a morning of golf followed by a sumptuous luncheon and silent auction to benefit Lee PACE Center for Girls. Pelican Preserve Country Club, Fort Myers. RSVP online or sign up by contacting admin@leebar.org Hole Sponsors connect today!

No LCBA Membership Meeting No Family Law Practice Section Meeting Real Property, Probate & Trust Law Practice Section Meeting Noon to 1 pm Judge Winesett’s Hearing Room 4H

The Florida Bar’s Annual Voluntary Bar Leaders Conference Lee County Bar Association hosting at Hyatt Regency Coconut Point. Register online at www.flabar.org

ADR Practice Section Brown Bag Lunch Meeting Noon to 1 pm, Hon. Alane Laboda’s Hearing Rm. 4-O, Lee County Justice Center

Land Use & Governmental Law Practice Section Meeting Noon -1:30 pm, Lee County Public Works, 1500 Monroe St., Fort Myers

No Family Law Practice Section Meeting August 8: Noon – 1 pm Real Property, Probate & Trust Law Practice Section Meeting, Judge Winesett’s Hearing Room 4H August 15 - 11:45 am – 1 pm LCBA Membership Meeting (Theme: Legislative & Judiciary Update) Rep. Heather Fitzenhagen and Chief Judge Jay B. Rosman, keynote speakers. Sidney & Berne Davis Art Center, Fort Myers August 28: Noon – 1:30 pm Land Use & Governmental Law Practice Section Meeting, at Henderson Franklin Starnes & Holt, PA, Fort Myers

Visit us online at leebar.org to see the entire LCBA Annual Calendar and conveniently RSVP for upcoming events.

Would You Like to Submit an Event?

Email your event submission to resgestae@leebar.org

In Memoriam James Allen Crawford II Fort Myers attorney James Allen Crawford, II, 42, formerly of Versailles, KY, passed away Friday, May 2, 2014 in Fort Myers. A loving father and husband, he is survived by his beloved wife of 15 years, Bennett Haney Crawford, and two beautiful children, Morgan and James Allen (Jack) Crawford, III. He is also survived by his parents Jim and Jean Crawford of Versailles and five siblings: Tom (Elaine), Ellen, Mark (Jill) of Versailles, Michelle (Tony Stratta) of Lehigh Acres, FL, and John (Brenna) of Shelbyville, KY, as well as numerous nieces and nephews.

Jim was a member of St. Leo Catholic Church, Versailles, where a Mass of Christian Burial was held Friday, May 9, 2014, and St. Francis Xavier Catholic Church in Fort Myers.

Contributions in memory of James A. Crawford, II may be made to the charity of your choice. Friends are invited to send condolences via the on-line guest book, which can be found at www.MullinsMemorial.com.

James F. Chelius, Jr. James F. Chelius, Jr., Managing Shareholder of Banker Lopez Gassler P.A. in Fort Myers, died suddenly on May 4, 2014.

Jim was the loving husband of Jeanette (nee Klem), beloved father of James of Los Angeles, and Jennifer Lynn of St. Petersburg, Florida. He is also survived by his brother Timothy (Jane). Jim was a graduate of LaSalle High School; Villanova University, where he ran track; and Delaware Law School of Widener College. He was a proud member of the Delaware Biking Blue Hens, a not-for-profit bicycling club out of Wilmington.

A Funeral Mass was held Monday May 12 at Saint Timothy Church in Philadelphia, with an interment at Holy Sepulchre Cemetery.

In lieu of flowers, donations in Jim’s memory may be made to the charity of your choice. To share condolences, please go to www. hollenfuneralhome.com.

ADA Statement of the Lee County Bar Association Fort Myers, FL It 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, Nanci DuBois at info@ leebar.org or admin@leebar.org (239) 334-0047, Option 3.

CRIMINAL DEFENSE

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June 2014 | RES GESTAE

11

Family Law Matters

Florida’s Grandparent Visitation Statute’s Illusory Remedies

by Luis E. Insignare, Esq.

Given Florida’s traditional status as a retirement destination, it is somewhat ironic that grandparents wishing to visit their grandchildren here essentially have no enforceable legal rights. This is, as our own Second District Court of Appeal (“DCA” hereinafter) has stated, “because of the privacy right’s protection enshrined in our state constitution.” Fazzini v. Davis, 98 So.3d 98, 104 (Fla. 2d DCA 2012). But Article I, Section 23 of the Florida Constitution simply declares that “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”

As of the expansion of the statute in 1990, there were four statutory scenarios that might trigger a right of grandparent visitation: when one or both parents of the child was deceased, where the parents were divorced, where a parent had deserted a child, and the new provision, where the grandchild was born out of wedlock. See, Fla. Stat. § 752.01(1) (Supp. 1990). The permissive “may” of the original statute was changed so that the statute stated that a court “shall” grant reasonable visitation rights when one of the four factual scenarios had occurred. Id. A new subsection was added including a list of factors that the court was required to consider in “determining the best interest 12

RES GESTAE | June 2014

of the minor child.” See, Fla. Stat. § 752.01(2) (Supp. 1990).

Having expanded grandparental rights beyond the original three scenarios where a traditional married couple’s family had been broken by death, divorce, or desertion, in 1990, to include families where the parents had never married, and having changed the statute from being discretionary to mandatory (so long as the visitation was in a child’s best interests), the proponents of grandparent visitation rights were emboldened to make more sweeping changes. In 1993 the statute was again amended, and this expansion may have been the statute’s downfall.

The 1993 amendment expressly extended grandparental rights even to when the minor child’s parents were still married and together, whenever “either or both parents have used their parental authority to prohibit a relationship between the minor child and the grandparents.” Fla. Stat. § 752.01(1)(e) (1993) (emphasis supplied). Now, whenever virtually any grandparent wanted visitation, and the parent(s) refused, that grandparent could bring his or her claim in court.

Within 3 years, the Florida Supreme Court considered the first of numerous piecemeal challenges to the statute, considering the constitutionality of the various scenarios set

Family Law Matters forth in the statute. The first of these cases was Beagle v. Beagle, 678 So.2d 1271 (Fla. 1996) which considered the newest, broadest provision of the statute. The Florida Supreme Court held that the “intact family” provision of the statute finding violated the privacy guarantee of the state constitution, and distinguished other cases where grandparent statutes had been upheld, in states whose constitutions did not have express privacy provisions.

With the constitutional door thus opened, the other provisions of the statute began to fall as well. As it turns out, Florida’s other parents have the same constitutional rights as those who are married. Including widows/widowers, Von Eiff v. Aziori, 720 So.2d 510 (Fla. 1998), and those with “out-of-wedlock” children. Saul v. Brunetti, 753 So.2d 26 (Fla. 2000). Although the supreme court has not expressly ruled on the “divorce” provision, the DCAs have, and it is equally invalid. See, Lonon v. Ferrell, 739 So.2d 650 (Fla. 2d DCA 1999); Belair v. Drew, 776 So.2d 1105 (Fla. 5th DCA 2001); Forbes v. Chapin, 917 So.2d 948 (Fla. 4th DCA 2005); see also, Belair v. Drew, 770 So.2d 1164, 1167 (Fla.2000); Richardson v. Richardson, 766 So.2d 1036 (Fla. 2000) (Chapter 61 provision placing grandparents essentially on equal footing with parents — for purposes of custody rather than visitation — held unconstitutional because that provision did not include a “detrimental harm” component, as had been noted to be absent from the grandparent visitation statute provisions struck down in Beagle and Von Eiff).

The only provision effectively left in the statute is the “desertion” provision. Since desertion (or “abandonment”) is in itself grounds for termination of parental rights, see, Fla. Stat. § 39.806(1)(b) (2013), if a parent objecting to grandparent visitation has deserted the child with whom the grandparent sought visitation, a grandparent might have a good argument that such a parent has waived, or is estopped to assert, his or her privacy rights. See, Griss v. Griss, 526 So.2d 697 (Fla. 3d DCA)(maternal grandfather, who was acquitted on grounds of self-defense of murder of child’s mother’s husband, could be granted visitation with child, given determination that child’s putative father, who was not married to child’s mother, left,

abandoned, or otherwise deserted mother and child some three months after child was born; however note that Griss predates Beagle and thus may no longer be good law), review dismissed 531 So.2d 1353 (Fla. 1988). In the more likely scenario of a parental objection coming from a non-deserting parent, the objecting parent, left behind with the child(ren) with whom visitation was sought, would be in an analogous position to the widow or widower left with a child after the death of her or his spouse, and Von Eiff would probably apply to bar grandparent visitation. Outside the very narrow confines of desertion/ abandonment, grandparent visitation in Florida may require amendment of the Florida Constitution. RG

Luis E. Insignares is a board certified marital and family lawyer and a certified family law mediator practicing in Fort Myers, Florida with the firm of Luis E. Insignares, P.A. He serves on the Executive Council of the Family Law Section of the Florida Bar and is a current member of the Family Law Certification Review Committee and former member of the Family Law Rules Committee of the Florida Bar. June 2014 | RES GESTAE

13

“If the House is a Rockin’ and the Feds Come A-Knockin…”

when your client receives a federal criminal subpoena

By Douglas Molloy, Esq.

There are many myths about criminal law, most perpetuated nightly on television, many ingrained into our psyche from favorite movies or novels from our youth. From Atticus Finch to Jack McCoy, Tom Cruise “handling the truth,” to the dilemmas – legal and wardrobe – of Vincent Gambini of “My Cousin Vinny” (baby blue tuxedo) or “Ally McBeal” (shoes), these characters and the drama that surrounds them are in the collective consciousness of your clients as well, and it is the fiction that surrounds their ideas about the criminal justice system that you have to cut through like a knife when they are approached by federal agents investigating criminal activity in the client’s corporation or profession.

No one will be busting down the door. No one will be sneering vague insults. No one will be making any tough-guy threats and grabbing anyone by their coat lapels.

Recommendation One to instill in your client: Don’t mistake civility for a lack of a serious problem. This isn’t the movies.

Your client needs to call you right away.

If federal agents have reached a point in their investigation that they are contacting your client as a witness, a subject, or a target, they are not going away. Ever. Their inquiry can’t be ignored, and you as the attorney need to give counsel or get counsel from the first contact.

Unlike most state investigations, federal investigations are pro-active, not re-active. The agents are building a case based on information they have obtained from victims, cooperating witnesses, or defendants providing substantial assistance as part of their plea agreement. They are attempting to verify and establish the veracity of the information they have, and they usually have a grand jury subpoena in their hand to obtain testimony or documents from your client to that end.

The client can refuse an interview, and be well within his or her rights to do so. Bad move. The client, through you or the criminal defense attorney you have contacted on behalf of the client, can decline to be cooperative at all. Really bad move.

Recommendation Two: Often at the initial stages, the FBI, DEA, IRS Criminal Division, ICE, or the U.S. Secret Service (all of these agencies have active and effective offices in Fort Myers and Southwest Florida) have not decided where your client fits in the firmament of the criminal activity. If your client is deemed a target, that label is self-explanatory; but your client may be, at that point in the investigation, a subject (the agency is unsure of the criminal culpability of your client) or simply a witness to the alleged criminal activity. The interview 14

RES GESTAE | June 2014

gives your client an opportunity to explain his/her version of events. Complying with a subpoena indicates a willingness to cooperate that would suggest a client’s innocence, or limited culpability. Your client has an opportunity to express his/ her side before an indictment and arrest, and this can start a dialogue between the federal investigators and the attorney that avoids unnecessary surprises (like an early morning arrest).

Recommendation Three: One of the little known facts about the federal criminal justice system is that almost every criminal felony case goes before a grand jury to determine if there is probable cause for an indictment. The grand jury makes that decision based on the information presented by the federal agent and the Assistant U.S. Attorney handling the investigation.

(Each investigation usually has an assigned prosecutor to work with the agent on the progress of the investigation.) What that means to your client is that if he or she chooses not to be cooperative, the federal criminal investigator can request other grand jury subpoenas to other people and entities and, in all likelihood, obtain that requested information another way.

Doesn’t it make sense to be as up front as possible to be in the best negotiating position before the decision as to whether your client is to be indicted and arrested has been made? If you have this ongoing dialogue with the agents, your voice (on behalf of your client) is still being heard; after the decision is made, the U.S. Attorney’s Office is extremely reluctant to reduce the charges based on information you have held back, “extremely reluctant” being a euphemism.

If your client’s “house is a rockin’,” and there are federal agents out there knocking, make sure your client has you or a criminal defense attorney on board, because in all likelihood, one way or another, they’re coming on in. RG Douglas Molloy is a criminal defense attorney specializing in federal and Florida criminal law offenses. He was Chief Assistant U.S. Attorney for the Southwest Florida division of the U.S. Attorney’s Office for 23 years, and previously Chief Assistant Statewide Prosecutor for the Florida Statewide Prosecutor’s Office in Miami and the Keys. Molloy has had over 200 jury trials, and is a national and international speaker and author on slavery and human trafficking.

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June 2014 | RES GESTAE

15

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RES GESTAE | June 2014

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17

APPELLATE INSIGHT Is It Reviewable?

Preserving Error (Part 2)

By Stacy L. Sherman, Esq. and Margaret H. White-Small, Esq.

In the May issue of Res Gestae, the authors identified objections as the first of four most common methods for preserving an issue or trial court error for appellate review. In this second part, we will discuss the final three: motions in limine, offers in proof, and motions for rehearing/reconsideration.

The most common way to preserve an issue/error for appeal is to make a proper objection at trial. Second, if you anticipate that a particular evidentiary issue will be contentious, it may be helpful to file a pre-trial motion in limine, which could resolve the matter before trial and assist you in preserving the issue for appeal. This is particularly helpful if you believe that introduction of the evidence would be highly prejudicial to your client.

In ruling on a motion in limine, the trial court may deny your motion, reserve on the motion, or grant your motion. If the court makes a definitive ruling denying your motion, your filing of the motion in itself operates to preserve the issue of the admissibility of that evidence on appeal. However, if the trial court does what is so often the case and reserves on the motion, your filing of the motion alone does not protect you. You are then required to object when opposing counsel attempts to introduce the objectionable evidence to preserve the issue for appeal. If, on the other hand, the trial court grants your motion and opposing counsel either violates that order by introducing the objectionable testimony or comes close to violating that order, leaving some question as to whether opposing counsel’s evidence or testimony is in violation of the trial court’s prior ruling on the motion, you must do three things to preserve your objection. One, you must object to the evidence or testimony, specifying that the evidence is being introduced in violation of the trial court’s ruling on the motion in limine. Two, you must 18

RES GESTAE | June 2014

request a curative instruction from the trial court (if there is a jury). Three, you must move for a mistrial.

Third, if, during trial, you believe that the trial court has improperly refused to allow you to introduce certain evidence or has improperly sustained opposing counsel’s objection to your examination or cross-examination of a witness, preservation of that error requires you to make an offer of proof/proffer of that evidence or testimony. An offer of proof/proffer is essentially an abbreviated presentation of the evidence along with legal argument in favor of admissibility.

See § 90.104, Florida Statutes. Such a proffer/offer of proof is not evidence; it is merely a procedural device that allows you to place the desired evidence or testimony on the record so that the appellate court will be able to review your claim. In the absence of proof of what your evidence would have been, the appellate court cannot know if it was error to exclude it and cannot consider your claim that the trial court erred.

The best practice is to present the witness’s testimony during a break in the trial so that the offer of proof/proffer does not Continued on page 28

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Selecting an A/E/C/S Expert for your Construction Defects Case

By Robert J. Bitterli

Within the design and construction industry, we use the abbreviation A/E/C frequently to denote architecture/ engineering/construction professionals. I propose adding an /S for science. The science can often answer questions as to the what and the why, and how the defect relates to a building’s performance or failure. How do you as the construction litigator select the right A/E/C/S expert for your case?

Over the course of many years and more than 200 cases, I’ve found the most critical factors for selecting your expert are, in order of importance: ability to communicate, the “right fit” with the attorney and case and, finally, expertise.

Communication ability is first and foremost. Your best witness can communicate complex technical concepts in a comprehensible manner. The use of effective demonstrative aids such as material samples, photos, models and drawings will help. The witness must be clear, concise and non-wavering, but not come off as stubborn to the other side of the case. This is a difficult balance to strike. Your witness must have an eventempered personality or risk being thrown off by a skilled opposing counsel.

A bit of passion in a witness’ opinions will help engage the audience, as long as it’s not over the top. The use of hand gestures and changes in body position are essential to keeping the audience’s attention, and eye contact is critical to getting the point across. However, my experience tells me there is no room for a “salesman” in the courtroom; all testimony must be genuine! If a witness comes off as too polished, there is a danger the witness will appear to have been coached, or is just plain un-relatable to the audience.

The second factor to consider is how the expert fits in with the overall case. If there are limitations of time, information or money, the expert must be comfortable with those limitations 20

RES GESTAE | June 2014

before accepting the assignment. How flexible will your expert need to be? How will he or she adapt to the needs of the case?

Can the expert effectively control for time, costs or unknowns?

Finally, how do you evaluate expertise? Frankly, credentials are fairly easy to come by compared to communication skills and the right fit for the case. Be very careful to examine any and all potential experts personally and with direct communications; do not go by credentials alone.

A few points to look for in each type of A/E/C/S Expert: • Architectural – Seek out a seasoned and licensed professional with a diverse base of experience, preferably one who is still active in architectural project design and construction administration.

• Engineering – An experienced Professional Engineer with expertise in the particular discipline in question (civil, structural, mechanical, etc.) will be most advantageous to your case.

• Construction – Residential, building or general contractors can address issues of project constructability, scheduling, estimating, jobsite safety and practices.

• Building Science – Building science experts can help in cases involving product and system failure requiring analysis, like thermal and moisture performance or material science issues, as examples.

Some final questions to ask: Is the expert truly necessary, or are consulting services needed? Does the client accept the need for the expert, and understand his or her importance? Will the client or insurer pay the expert’s fees? What are the possible findings, and could they work against your client?

When it comes to the case and trial proceedings, you as the attorney are the “general” on the battlefield and call the shots!

The selection of the expert witness is a critical responsibility.

Carefully consider all of your options in the pursuit of the best possible expert witness for your client. RG Robert J. Bitterli, AIA/LEED AP/ NCARB is the CEO/President of Ivy Group Consultants, a St.Petersburgbased forensic architecture and building sciences firm working throughout the Southeastern United States. He has practiced architecture for 35 years and forensic architecture for the past 25 years. He can be reached at rbitterli@ ivygroupconsultants.com.

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A

S

e r n o e s i G t f y o e k o tr

Annual Golf Tournament to Benefit PACE Center for Girls of Lee County

by Sara Fitzpatrick Comito

May 2014 | RES GESTAE

22

Pelican Preserve Golf Club, Fort Myers, June 28, 2014 Check-in begins at 7:00 a.m., shotgun starts at 8:30 a.m.

Title sponsor: Roetzel & Andress Golf: $135 single, $500 foursome (includes lunch – registration deadline: June 13) Lunch: $25 for non-golfers • Four Player Scramble. Singles Welcome • Mulligans, 50/50, Silent and Live Auction Sponsorships, donations and volunteers needed. To join the planning committee, email Kelly@FayerLaw.net.

Call Nanci DuBois at 334-0047, option 3 or register at www.leebar.org or e-mail admin@leebar.org.

Photos Courtesy of Julie Renner Photography

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RES GESTAE | June 2014

Perhaps it’s a cliché that lawyers like to golf. Our attorneys, however, break the mold when it comes to generosity. In a New York Times Op-Ed, Garrison Keillor wrote: The socially redeeming aspect of golf lies in the vast number of lawyers and bankers and managers who play it, and when you think of the damage they would do if they were at the job instead, you can see why golf courses are a wise investment for any municipality.

That mischievous raconteur never played golf the LCBA way, however. When the “law and the links” (to borrow somewhat from a famous Justice Antonin Scalia dissent) cross again at the Fourth Annual LCBA Charity Golf Tournament, local at-risk adolescent girls will directly benefit. The intrinsic value of a day on the greens aside, the annual tourney is all about social redemption – and a very good cause indeed.

PACE Center for Girls of Lee County has been chosen as the beneficiary of this year’s tournament, and it’s an organization near and dear to many of our hearts. Even if Putt-Putt is more your speed, you’ll discover plenty of opportunities to play and help June 28 at Pelican Preserve Golf Club.

Par for the cause Ken Jones has golfed for more than half a century, and has mastered the self-deprecating humor needed to stick with it so long. “My father was a golfer and mistakenly thought I should be also,” he recalled, and added the most enjoyable part of the game is “making the guys I bet with happy.” If his humor recalls the late great Bob Hope (“I’d give up golf if I didn’t have so many sweaters.”), then so does his wardrobe.

His Golf Tournament Committee Co-chair Kelly Fayer confirmed, “Each year, we look forward to seeing the golf attire of Ken Jones.” She said his ensembles are matched in their creativity only by the cakes Executive Director Nanci DuBois bakes for the silent auction.

Like Ken, there’s no need to be a skillful player to join the fun. Kelly said, “Although we offer prizes for the best players, we also have a gift for our ‘highest’ scoring team, so you do not have to be good at golfing to enjoy the tournament.”

Pelican Preserve is determined to impress in its first year as our venue. “The course is terrific and in great shape,” Ken

June 2014 | RES GESTAE

24

promised. This writer and Res Gestae’s June cover models got the chance to witness first hand the meticulous care that goes into maintenance. The grounds crew personnel were also patient with us as we occupied the areas with the best lighting for the photo shoot, which seemed to be right where they wanted to work at the moment. Kendra Sutton, chair for PACE’s Love that Dress! event, also said the club was willing to work with the LCBA on the tournament costs. “We were looking for a community partner that would give us a generous rate, great course and good food in order to allow us to give more back to the charity. The staff at Pelican Preserve made that happen!” she explained.

Dressed to a tee There are many fun ways to help PACE and their Love That Dress! event during and before the tournament. Participants need not be LCBA members, so invite your friends and family.

Non-golfers can enjoy a wonderful lunch, and there will be raffle prizes and a silent and live auction, with a trip to New Zealand among the attractive offerings. As in past years, one lucky attendee will walk away with the Extreme Undercover Adventure, an exciting evening for four guests with Sheriff Mike Scott and his wife along for a secret mission, including a ride in the “Smuggler’s Nightmare” high-speed boat and an armored Hummer to some top-secret dining destinations.

Through donation parties, PACE collects mostly donated dresses (new or gently loved handbags, shoes and accessories are also accepted), which it sells to raise much-needed funds.

Last year’s totals topped $135,000 for the organization, which assisted in the capital campaign of opening a larger Center in March of this year. Need is greater than ever, as PACE Lee has recently moved to a new location and still needs computers, lab equipment and funding for academics for the PACE Girls.

Kendra remarked that the more parties she attends, the more she recognizes the merchandise around town, such as Kelly’s White House | Black Market necklace in our cover photo. “Every item, big or small, helps change the life of a PACE Girl.” Love that Dress! donations will be accepted at the golf tournament, with a chance to win a fantastic weekend getaway for each new

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RES GESTAE | June 2014

or gently loved dress, suit, handbag, shoe or accessory donated.

The winner will be announced at the luncheon.

“PACE Center for Girls provides education and counseling to young women who have endured more traumatic events in their adolescence than most people face in a lifetime,” said Kelly.

“These young women are empowered to become productive members of our community, and the LCBA is honored to offer its support.”

“This year’s tournament is sponsoring a great cause and should be a lot of fun,” Ken added. RG

Community Connection

by Sara Fitzpatrick Comito

“Florida incarcerates girls at a higher rate than any other large state.”

“Delinquency cases are almost twice that for the nation as a whole.”

These are just a few of the startling conclusions reported by PACE Center for Girls. Rather than perfunctorily filtering the staggering number of young women through the justice system, a group of local leaders decided there had to be another way.

From his view from the frontlines on the juvenile dependency docket, now-retired Judge James Seals saw that many girls entering the system for any number of offenses shared a common history. The “offenders” were often victims first – of physical and sexual abuse, neglect, human trafficking and problems stemming from foster care. Some had experienced the death of a parent. Others had a mom or dad who was in jail.

Would it not be more beneficial to offer these girls advocacy, counseling and education before they ended up in detention?

Judge Seals co-founded the local PACE Center, which opened in 2007 and continues to help get at-risk girls on the right track.

The fundraising goal of 2014 LCBA Charity Golf Tournament is to raise $20,000 for PACE Center for Girls of Lee County.

The organization is fortunate to have recently purchased its own facility, which will allow it to help more girls. The money will help provide computers, science and lab equipment and additional classroom furniture to help PACE operate as efficiently as possible.

“It is so beneficial to society, our community, the taxpayers and the judicial system to keep these girls out of the courts and juvenile justice system,” said Love That Dress! Chair Kendra Sutton. “If we break the cycle at this point, they do not fill our jails in the future. For a girl to go through PACE, it costs $14,000, but for a girl to remain in the Juvenile Justice Department costs 26

RES GESTAE | June 2014

$40,000 annually.” Beside the numbers, Sutton said the power of the PACE model comes from the encouragement the girls receive in terms of love, guidance, support, education and advocacy.

But back to the numbers: The average age of girls entering the local PACE is 15. Twenty nine percent of the girls reported substance abuse before coming to PACE. Twenty seven percent had run away. It’s pretty harrowing stuff, and it takes volunteers from every walk of life to make a difference. The legal, law enforcement and judicial community alone has produced a veritable army of PACE advocates. The 20-member PACE Lee Board of Directors includes: LCBA President John Agnew of Henderson Franklin Starnes & Holt, P.A.; Marshall Bower of the Foundation for Lee County Public Schools and Cora Molloy of Morgan & Morgan. The following serve on the ninemember Advisory Board: Fort Myers Police Chief Doug Baker; State Representative Heather Fitzenhagen; Hon. Josephine Gagliardi, County Court Judge for Lee County; Steve Russell, State Attorney for 20th Judicial Circuit; Lee County Sheriff Mike Scott; Founding Member Hon. James Seals, retired Circuit Court Judge; and Kathy Smith, Public Defender, 20th Judicial Circuit.

With their help and fundraisers like Love That Dress! PACE Lee served 137 girls in 2012-2013. Ninety six percent had no involvement with Juvenile Justice within one year of leaving PACE. Eighty five percent were placed in an appropriate educational setting. Eighty eight percent improved their academic performance. Eighty percent were in school or employed six months after leaving.

Since opening its doors in 2007, PACE Center of Lee County has helped nearly 600 girls find success in school, generate a positive relationship with their families and peers, and become productive members of our community. To learn more and find out how to support PACE Center of Lee County, visit www.pacecenter.org/lee.

Consider where you are in your life and career today. Now consider the nurturing, mentorship and opportunities that helped you get to this place. What might have happened if all those lucky stars hadn’t lined up? Sutton said that every woman has a “PACE girl” inside herself. “We are changing girls’ lives for the better everyday at PACE.” RG

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Continued from page 18

Stacy Sherman is licensed to practice law in both Florida and Maryland.

She manages her own law firm in Fort Myers and practices in the areas of probate administration and appeals.

She also assists trial attorneys with research and other litigation support.

Stacy can be reached at stacy@ stacylshermanpa.com.

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Having spent nearly twenty-two years as a senior staff attorney at the Second District Court of Appeal, she founded and serves as chair of the Appellate Section of the Lee County Bar Association. She may be reached at mwsnsanibel@aol.com.

www.businessobserverfl.com

disturb the flow of the trial but is properly placed on the record for review. If the trial court denies trial counsel’s request to present the witness or document, then trial counsel’s oral offer of proof/proffer can be sufficient to preserve the record on that issue. If trial counsel’s request to make an oral offer of proof/ proffer is denied altogether, if the evidence has been rejected as a class, or if the trial court states it is not necessary to present the evidence, then that issue has been preserved for appeal. In fact, the Second District Court of Appeal has held that a party has a right to make an offer of proof, and the trial court’s refusal to allow the same may itself be grounds for reversal. Smith v.

State, 594 So. 2d 846 (Fla. 2d DCA 1992).

Fourth, in general, a motion for reconsideration or rehearing is required to preserve an error that appears in the final judgment but was not raised or argued at the hearing or trial.

This generally arises where the trial court includes findings in the final judgment that are not supported by the evidence.

Once again, if counsel did not have the opportunity to argue the error, the trial court did not have the opportunity to correct it, and the appellate court will not likely address it. By raising the error in a motion for rehearing/reconsideration, you will give the trial court the opportunity to correct the error first.

Beware: A motion for reconsideration/rehearing will not toll the time for filing the notice of appeal of an interlocutory order.

In the subsequent issue of Res Gestae, the authors will discuss additional components of an effective and proper preservation of the record. RG

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The Dish

Painter Sharon Tully created this sign, along with much of the other vibrant artwork displayed inside La Trattoria Café Napoli.

When Gloria Jordan d’Cabral purchased La Trattoria Café Napoli, it was a nice enough hole-in-the-wall (my favorite kind) Italian restaurant. I think I remember white tablecloths.

One night about a decade ago I had a glass of wine and an appetizer, looked at the prices and decided to go elsewhere for dinner. I didn’t think more about it until an ardent supporter of this magazine and that restaurant suggested I give it another look.

Turns out our own Luis Insignares is a regular at Gloria’s La Trattoria Café Napoli. Granted, the restaurant’s name is a mouthful. And while the menu encompasses a wide swath of culinary geography, Napoli is still represented. Food historians would insist, “Well, of course it is!” With its Mediterranean flair, the menu reflects a legacy of successive imperialism by the Greeks, Romans, French and Spanish. Gloria’s approach is far from academic. Born in Havana, Cuba, she latched onto her mom’s “genius” touch in the kitchen (Gloria’s word), then traveled through Scandinavian and Europe honing her culinary philosophy. And we get to reap the benefits.

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RES GESTAE | June 2014

Today La Trattoria has the same unassuming storefront in that orange and white building in the Villas Plaza, one door down from the former and very dearly missed Austin’s Wine Cellar. The hole-in-the-wall, however, is now twice its former size following a recent remodel that included the addition of a wine bar. And the space is vibrant, painted in sunflower yellow and velvety crimson tones, accented by artwork featuring flamenco dancers and matadors. Tables are a bit close, but it’s the type of place where it’s acceptable to ask your dining neighbors what they’re having. On my recent lunchtime

The Dish

Griglia involtino de melanzane: One of La Trattoria’s most popular salads

Shaved plantains are quickly fried, then dressed with olive oil and fresh garlic for a scrumptious appetizer

A flaky empanada with chicken and salsa verde

visit, laughter and excited talk filled the room. The two ladies adjacent engaged me in conversation and kept remarking on how happy they were to have found La Trattoria.

My food writing is relegated to this once-a-month-only space, so I try to feature dining destinations worth our readers’ time. In this case, Gloria has made my job very easy. And while the menu and the physical location have expanded, the prices reflect a fair amount of restraint. However, it’s possible to live very high on the hog here. Parties of eight or more can call ahead to order a whole roasted suckling pig for a special occasion – or to make any occasion special.

For lunch, a flatbread pizza will run you $6, a small portion of pasta Bolognese $8.50. One of the most popular options for lunch is the griglia involtino de melanazne, or grilled eggplant slices rolled around sweet cured bolo ham, aged provolone and pesto over fresh greens with tomatoes, roasted peppers, pine nuts and a balsamic glaze. A crab salad melt featured a heavenly bread that had a brittle crust outside and was soft as a cloud inside. Not everyone loves curry, so the knowledgeable and friendly server was kind enough to mention that the crab was dressed in it, just in case. I do, and I did. Looking at the map of ancient spice routes, I can kind of get the connection.

Whatever. It’s tasty.

My favorite way to dine is tapas-style, sharing small plates with friends over a glass of wine. A careful reader of this magazine may have witnessed a recent diatribe from yours truly regarding what qualifies as such. Gloria’s been to Spain, and I haven’t (yet). Her tapas menu is inclusive of Mediterranean and even South American influences. Fried garbanzos with chorizo, garlic and tomatoes; yucca fries with an aioli sauce; empanadas with chicken and salsa verde (which, rather than the expected roasted tomatillo concoction, was instead a very fresh pesto); prosciutto with nutty Manchego cheese with the requisite quince paste on pita points; artichokes with creamy

Cabrales blue cheese…

There’s “fusion” cuisine, and then there’s confusion. Gloria’s fare is neither. Rather, it’s a sweeping celebration of color, texture, flavor and the interconnectedness of cultures through food that everyone can enjoy, especially since no dinner entrée is more than $22, including delicate pasta sachets filled with ricotta, mozzarella and black truffles. Three varieties of paella are available. Repeat after me: ternera a la sevillana. Sounds sexy, right? It’s a pan-seared veal scaloppine drizzled with a light carrot sherry sauce and green olives served over fried string beans. Getting hungry? Try the “Catch of the Night” with a sauce of roasted carrots, saffron, shallots and madeira.

It’s like flamenco on a plate. RG Gloria’s La Trattoria Café Napoli 12377 Cleveland Avenue South, Fort Myers 239-931-0050 www.latrattoriacafenapoli.com Lunch: 11 a.m. to 2:30 p.m. Mon - Fri Dinner: 5 to 10 p.m. Mon - Sat Reservations recommended for dinner, accepted for parties of 6 or more for lunch Sara Fitzpatrick Comito is the Communications Editor for CONRIC PR & Marketing | Publishing, and associate editor of Res Gestae magazine. For suggestions and comments on this regular feature, contact Sara at Sara@ ConricPR.com.

June 2014 | RES GESTAE

31

The Dish List

where to meet & eat

Reserve your space now for

THE DISH LIST a monthly feature showcasing where to meet and eat in Southwest Florida, running next to RG’s regular feature “The Dish”.

To take advantage of this great opportunity to have your establishment featured in this special section, contact Linda Fiore: 239.690.9840 or resgestae@leebar.org

The Veranda 239-332-2065 2122 Second Street, Fort Myers www.verandarestaurant.com The Veranda’s romantic setting in two turn-of-the-century homes, combined with our Southern Regional Cuisine, an extensive wine list, and first class service staff will provide you with the most unique dining experience in Southwest Florida.

Royal Palm Trattoria 239-204-9059 1400 Colonial blvd., #35, Fort Myers www.RoyalPalmTrattoria.com Conveniently located in Royal Palm Square off Colonial and Summerlin, Royal Palm Trattoria offers a casually elegant dining experience for lunch and dinner. Our all-day happy hour is also the perfect chance to gather with clients or friends.

Hotel Indigo 239-337-3446 1520 Broadway Ave., Fort Myers www.hotelindigo.com The Hotel Indigo Fort Myers provides an escape from the ordinary, offering premium services, a casually-sophisticated ambiance. Breakfast, lunch and dinner served daily in the Broadway Bistro. Happy Hour Monday through Friday 2pm - 8pm.

Take a break from the Ordinary New Age ItAlIAN RestAuRANt Invites LCBA Members to Experience Fine Italian Cuisine at Affordable Prices for Lunch or Dinner 3-Course Dinner, 4-6pm Daily Includes Soup or Salad, Choice of 7 Entrees, Plus Dessert for Only $9.95

Succulent “Lawyers Cut” Char-Grilled Prime Rib $12.95

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Reservations Recommended

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Live Jazz Pianist & Sax every Friday, 6-9pm at the Piano Bar

RES GESTAE | June 2014

1400 Colonial Blvd., #35 • Fort Myers Located in Royal Palm Square behind the Broadway Palm Theater Takeout Available • Closed Sundays

Practical Representation with Your Client’s Best Interests in Mind.

Scott A. Kuhn Attorney, Mediator, Arbitrator

Dedicated to attentively guiding your clients through the legal process while providing customer Service Above & Beyond ~ we return all calls the same business day.

Offering a Full Range of Probate, Estate and Trust Services: Estate Planning

Estate Administation

Ancillary Probate

Wills & Trusts

Probate & Estate Litigation

Trust Administation & Litigation

Special Needs Trusts

Will Contests

Guardianship

239.333.4529 6720 Winkler Road · Fort Myers, FL 33919 · www.KuhnLegalEstates.com

Innovative Law for Innovative Businesses Protecting your client’s:

• Social media, digital marketing

• Privacy policies, website hosting and development agreements • Trademarks, copyrights, patents and more

Patent • Trademark • Copyright Franchise & Related Business Law and Litigation

800-548-4332 • 239-262-8502 www.TheLivingstonFirm.com Offices in Naples and Fort Myers

Katharyn E. Owen, Esq. Intellectual Property & Technology Lawyer owen@wmrlawoffice.com 239-542-0700

JONES, HABER & ROLLINGS, PL F/K/A Warchol, Merchant & Rollings, LLP www.WMRLawOffice.com 1633 SE 47th Terrace • Cape Coral, FL 33904

June 2014 | RES GESTAE

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On the Bench Hon. Sherra Winesett As our court grows in size and complexity, Judge Sherra Winesett is busy working with various committees to improve civil case management procedures and circuit-wide uniform orders.

It’s part of her job description as Civil Administrative Judge, but she also wants to leave the system in better shape than when she took the bench 19 years ago. She enjoys tackling special projects and holding brown bag sessions with attorneys.

She does plan to leave, as her retirement is effective August 31 of this year. She will be spending time traveling and visiting with her five children and many grandchildren. Other than that, the sky’s the limit for the judge, who was one of the first female attorneys practicing in Fort Myers.

She and her high school sweetheart, Rick, married after their first year of college. She taught math at Fort Myers High School for three years before returning to the University of Florida for her Masters of Education. She and Rick then taught together at FMHS from 1969-70. “It was nice,” she said, “but teachers were very underpaid.”

Judge Winesett’s husband returned to UF to attend law school. She entered a year later, and her third child was born during law school. After graduating from law school, Judge Winesett recalled, “There weren’t a lot of job opportunities for women attorneys back then.” However, she was offered a position at Allen Knudsen, around the same time as fellow judges-to-be R. Thomas Corbin and William McIver. At that time, Diane Jensen was the only other practicing female attorney in Fort Myers.

Judge Winesett later earned a Masters of Laws in Taxation, and became Board Certified in Taxation and Wills, Trusts & Estates. To cap off her string of accomplishments, she became the first female Circuit Judge in the Twentieth. She was also a founding member of the Calusa Inns of Court.

This narrative begs the question: How does a pioneering working mom balance everything? “I didn’t really think about it too much,” she said. “I just worked hard and tried to do my job competently.”

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RES GESTAE | June 2014

From the Bar Keith W. Upson, Esq. “I take what I do for people extraordinarily seriously,” said Keith Upson, “but myself, not so much.” Working with his wife Giovana, who has a lot of criminal trial experience, he focuses primarily on post conviction matters and direct appeals. It’s often heavy stuff where people’s lives hang in the balance. Having a sense of humor brings balance, which Upson claims is far from unique. “There is more of a historical tradition of humor and the law than many might think.” It was the topic of his presentation at an academic conference a while back.

Upson counts among his triumphs the case of a man who is rightly home today with his family, but expected to be in prison for another 17 years. “What is probably more remarkable,” he explained, “is the realization that when you’re able to help families through a difficult process with dignity and respect, how appreciative they are even when things don’t turn out the way they wanted.”

He also has a background in commercial litigation, where everything is economics. “While neither side may be happy after trial, one side is usually more unhappy than the other.” He still finds ways to help someone with a need outside his usual scope. “It has to be frustrating to need help and knock on doors and get sticker shocked, when all it takes to provide a solution is fifteen minutes and a letter.”

Originally from Texarkana, Texas, Upson attended Tulane University Law School and has been in practice in Florida since 1997. Today he serves as chair of the LCBA’s Criminal Practice Section.

Upson has also had success in creative writing, which he publishes under a pseudonym. Just like humor, it doesn’t necessarily have to be kept separate from one’s lawyerly life. “I think all writing, even appellate brief writing, is creatively fulfilling.” He presented a workshop once on indulging one’s creative side while writing appellate briefs. “It isn’t uncommon for me to write two documents at once: the brief in one window, and fiction in another, switching to the fiction when my focus on the technical writing wants to wander.”

When he’s not at work, Upson likes spending time with his two children and enjoys backpacking treks with his son.

Where There’s a Will, There’s a Way Let us help protect your estate, Assets and your Wishes • Estate Planning • Living Trusts • Last Will & Testament • Living Will/Healthcare Proxy/Power of Attorney • Asset Protection & Trust Formation • Probate & Probate Litigation

During the emotional time of a loved one’s passing, it may seem overwhelming to deal with their estate. But, reason must prevail. Let Our Experienced Attorneys Help you through the process.

239-337-1147 www.KFJlaw.com

15701 S. Tamiami Trail Fort Myers, FL 33908

James W. McQuade, LL.M. Estate Planning

Kevin F. Jursisnki, B.C.S. Florida Board Certified in Real Estate, Business & Construction Law

Kara M. Jursinski, LL.M. Real Estate Development

Protecting the Future of our Clients

June 2014 | RES GESTAE

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Real Estate

where to buy, sell or lease

Historic downtown location (Old Robb & Stucky Building)

◆

FOR LEASE • PROFESSIONAL OFFICE

Adjacent to city parking garage

1404 Dean Street • Downtown Fort Myers • River District

Corner of Dean Street and Bay Street 1,450 SF Office Space Second Floor • Elevator Access Adjacent to Harborside and Parking Garage Walk to the Courthouse, Post Office, and Banks $18.20 per SF

◆ Short walk to courthouses, governmental offices, and restaurants

Tenant to pay electric, water, sewer and insurance on interior

$2,200 per month • $26,390 per year plus tax

3 office suites ranging from 536 to 1,032 +/- sq ft currently undergoing complete renovation with wood floors and natural brick ◆ No CAM charges ~ Flexible lease terms and conditions

Randall P. Henderson, Jr. Broker 239-850-8333 corbinhenderson.com

Executive suites ranging from 140 sf to 315 sf 24-hour access ◆ minimal costs On-site property manager Virtual suites available to give you a presence in Downtown Fort Myers with no overhead

◆ Contact LeeAnn Harrington

239-334-2722

Office Space for Rent HISTORIC EDISON THEATRE BUILDING 1533 HENDRY STREET ~ DOWNTOWN FORT MYERS

Available: 3rd Floor ~ 550 Sq. Ft. Call for Rates

GREAT LOCATION! MUST SEE! For More Information Contact

Cindy Gibson McHale Properties Company 1601 Jackson Street, Suite 200, Fort Myers, FL 33901

239.337.4491

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RES GESTAE | June 2014

Real Estate

where to buy, sell or lease

Expanding or Relocating Your Business?

Consider one of the premier locations in Southwest Florida: The Award-Winning KFJ Building 15701 S. Tamiami Trail, Fort Myers

4,113 - 6,600 SF Build to Suit • Generous Build-out Allowance

350 Feet of US 41 Frontage with Three Sign Locations ~ On Building and Double-Sided Pylons 70,000 cars a day pass by the building making this the heaviest traveled stretch of US 41 in Lee County LoopNet ID #17593914 • $14/SF + CAM

OFFiCE Sharing OppOrtunity with Patterson, Eskin and Ball 1420 SE 47th Street Cape SE Coral, FL 33904 1420 47th Street

prime Downtown Cape Coral Location Cape Coral, FL 33904

For More information please Contact

hal Eskin, Dixie Lee Ball or Janice Meredith at (239) 549-5551 or Email jsmere@comcast.net

Reserve your piece of prime “real estate” in Res Gestae’s REAL ESTATE SECTION, dedicated to showcasing your property or service.

Contact Linda Fiore: 239.690.9840 or resgestae@leebar.org

NAPLES REAL ESTATE LAWYER UNIQUE CAREER OPPORTUNITY Cheffy Passidomo seeks highly qualified real estate transactional and development lawyer to step into a prominent established practice being vacated by a partner leaving the firm to pursue a business opportunity.

Requires excellent academic credentials and extensive commercial real estate, loan, condominium, construction, development and leasing experience.

Preeminent career opportunity, immediate front-line responsibility, and collegial and supportive work environment.

Send resume to cemustard@napleslaw.com

to advertise here-email resgestae@leebar.org

June 2014 | RES GESTAE

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is of time the essence

when

William M. Allen Henderson/Franklin, Attorneys at Law Blair J. DeMinico Lee County Legal Aid Society, Inc. Alexa R. Evans Matthew A. Linde, P.A. George W. Gift III Knott, Ebelini, Hart Scott E. Heffington Kushner & Kushner Gladys A. Ortega Florida Rural Legal Services, Inc.

10% Discount on Transcripts Ordered at Time of Deposition or Hearings / Trials

Darah L. Schofield Darah L. Schofield Attorney at Law Justin M. Thomas Boyle, Gentile & Leonard, P.A.

• Two Convenient Locations In Ft. Myers • Standard Six-Day Transcript Delivery • Depositions, Hearings & Mediations • Courtsmart Transcription • Conference Rooms Available For Mediation • Realtime • Free Wireless Access • Videographers • Video Text Sync At No Charge • Interpreters Free ASCIIs, CDs, Keyword Indexes, and Condensed Transcripts

www.meritcourtreporting.net 239.481.1300 S. Fort Myers • 6213 Presidential Court Suite 100 • Fort Myers FL 33919 Downtown • 2022 Hendry Street Suite 104 • Fort Myers, FL 33901 38

RES GESTAE | June 2014

(239) 472-5506 Lee County

(239) 430-1130

Collier County Email: Islandinv@aol.com www.AlliedBizSolutions.com

P.O. Box 427, Captiva, FL 33924 Serving SW Florida Since 1989

Law Week Awards On May 2, the LCBA membership gathered at the Sidney & Berne Davis Arts Center to honor the 2014 Law Week Awards recipients. Thank you to all our members and special guests who attended, and congratulations to this year’s winners.

Liberty Bell Award Ethel Wells (retired, Florida Rural Legal Services) Law Enforcement Officers of the Year Deputy Jeff Pierot and Deputy Russell Park (LCSO); Officer Stephen Burkhart (CCPD); Officer Ilia Movalli and Officer Michael Perry (FMPD); Officer Jon Smith (SPD) Teacher of the Year Virginia Sisk (Fort Myers High School) Judges of the Second District Court of Appeal Hon. Darryl C. Casanueva, Hon. Craig Villanti, & Hon. Morris Silberman with Marshal Jo Haynes and Deputy Assistant Jodie Siemen Judges Hon. Keith R. Kyle, Hon. Alane C. Laboda, Hon. Tara Paluck, Hon. Lee A. Schreiber, Hon. John S. Carlin, Hon. Archie B. Hayward.

Special Guests Cape Coral: Mayor Marni Sawicki; Police Chief Bart Connelly. City Councilmembers Jim Burch, John Carioscia, Rana Erbrick, Richard Leon, Leonard Nesta; City Manager John Szerlay. Fort Myers: Police Chief Doug Baker; City Manager William Mitchell; City Councilmembers Theresa Watkins Brown and Thomas Leonardo; School Board members Jeanne Dozier, Cathleen Morgan and Mary Fischer. Lee County: Sheriff Mike Scott; Director of Administration Joanne Robertson; Commissioners Brian Hamman, Cecil Pendergrass and Larry Kiker; Tax Collector Larry Hart; Sanibel: Police Chief William Tomlinson. Twentieth Judicial Circuit: State Attorney Steve Russell and Public Defender Kathy Smith.

June 2014 | RES GESTAE

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Legal Lens 1

2

4

3

5

Photos Courtesy of John Fernandez

Law Social Week Awards Scene Luncheon Pictures 1 Lovie Wells, Jr., pictured here with Ida Wells, accepted the Liberty Bell Award on behalf of his wife Ethel, who was away the day of the event

6

7 8

2 State Attorney Steve Russell presented the Law Enforcement 1 Officer of the Year award to officers and deputies from our local sheriff’s office and police departments for their heroic 2 acts

3 Cape Coral Mayor Marni Sawicki and Sheriff Mike Scott 3 4 4 Hon. Darryl Casanueva, Mary Briede, Morris Silverman 5 5 Lee County Tax Collector Larry Hart and Lee County Director of Administration Joanne Robertson

6 6 Cape Coral Councilman Lenny Nesta and City Manager John Szerlag 7

7 8 CCPD Officer Stephen Burkham

8 Mary Evans, Lee County Commissioner Brian Hamman and 9 Public Defender Kathy Smith

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RES GESTAE | June 2014

Legal Lens 1

2

4

3

5

6

Photos Courtesy of John Fernandez

Law Week Awards Luncheon

7

1 FMPD Officers Officers Michale Perry and Ilia Movalli 2 Teacher of the Year Virginia Sisk 3 LCSO Deputies Jeff Pierott and Russell Park 4 Keith Grossman, Hon. Darryl Casanueva, Hon. Morris Silverman and State Attorney Steve Russell 5 Hon. Darryl Casanueva leading the Pledge of Allegiance 6 John Agnew and Cynthia Duff 7 Hon. Keith R. Kyle, Hon. Lee A. Schreiber, Hon. Archie B. Hayward

June 2014 | RES GESTAE

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Legal Briefs Collier Legal Aid names Hahn Loeser Firm of the Year Hahn Loeser & Parks LLP has been selected as “Law Firm of the Year” for 2013 by Legal Aid Service of Collier County in recognition of its significant pro bono service and financial contributions.

Hahn Loeser has sponsored the Barrister’s Bash since the event’s inception in 2009. Individuals with the firm have also performed pro bono service through Legal Aid, including through the “Wills for Heroes” initiative, which was launched in 2012 to provide free wills and basic estate planning documents to local veterans, firefighters, police officers and first responders.

Jeanne Seewald, the firm’s Southwest Florida office managing partner, an LCBA member and the immediate past president of the Collier County Bar Association (CCBA), has been a longstanding supporter of Legal Aid. Her leadership, in addition to the efforts of the other members of the CCBA’s board of directors and executive officers, has lent support to Legal Aid through significant contributions from its annual fishing and golf tournaments.

Bradley recertified in Wills, Trusts and Estates Todd L. Bradley has been recertified as a Board Certified Specialist in Wills, Trusts and Estates. A principal of Cummings & Lockwood’s Private Clients Group in the Naples, office, he was originally certified in 1999, and has maintained his certification for 15 years. Bradley focuses his practice on Wills, Trusts and Estates.

Bradley is a member and past president of the Estate Planning Council of Naples, Inc., a past chair of the Education Foundation of Collier County, a member and past chair of the Trusts and Estates Section of the Collier County Bar Association, a member of the Real Property, Probate and Trust Law Section of the Florida Bar, and a member of the Ave Maria University Planned Giving Council.

Todd received his B.A., cum laude, from the University of Minnesota in 1987, his J.D., with honors, from the University of Florida in 1991, and an L.L.M from New York University in 1994.

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RES GESTAE | June 2014

Congratulations to the Members of the Lee County Bar Association’s

100 Club

Aloia Roland & Lubell, LLP Arend & Sisk, P.A. Associates and Bruce L. Scheiner, P.A. Bonita Springs City Attorney’s Office Costello Royston & Wicker, P.A. Boyle Gentile & Leonard, P.A. Burandt, Adamski & Feichthaler, P.L. Calvo & Calvo Coleman & Coleman Cole, Scott & Kissane, P.A. DeBoest, Stockman, Decker, Hagan, Cheffer & Webb-Martin, P.A. Engvalson & Associates, P.A. Fort Myers City Attorney’s Office Fowler White Boggs, P.A. Fried & Fried, P.A. Garvin Law Firm Geraghty, Dougherty, Edwards, P.A. Goldberg, Racila, D’Alessandro & Noone, LLC Goldstein, Buckley, Cechman, Rice & Purtz, P.A. Green, Schoenfeld & Kyle, LLP Grossman Law & Conflict Management Hahn Loeser & Parks LLP Henderson, Franklin, Starnes & Holt, P.A. The Law Offices of Kevin F. Jursinski, P.A. Knott Ebelini Hart Kuhn Law Firm, PA Kushner & Kushner Lee County Legal Aid Society, Inc. McQuagge Law Firm North Law Firm, P.A. O’Halloran & O’Halloran, Attorneys at Law Osterhout & McKinney, P.A. Parvey & Frankel Attorneys, PA Prather and Swank, P.A. Patrone & Kemp, PA Pavese Law Firm Rhodes Tucker Roetzel & Andress, L.P.A. Rubinstein & Holz, P.A. Sheppard, Brett, Stewart, Hersch, Kinsey & Hill, P.A. Spivey Law Firm, Personal Injury Attorneys PA Steinberg & Linn, P.A. Strayhorn and Persons, P.L. Toll Law Viles & Beckman, LLC Webb & Scarmozzino, P.A. Weldon & Rothman, P.L. Yeslow & Koeppel, P.A. Is your firm part of the 100 Club? Any firm with 2 or more attorneys and 100% membership in the LCBA qualifies.

If you feel your firm is eligible fax a listing of your attorneys to (239) 334-0523 and we will let you know.

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ConricPR.com 239.690.9840 info@conricholdings.com June 2014 | RES GESTAE

43

Legal Briefs Law firm adds new area of practice The Real Estate, Business and Construction Law firm of Kevin F. Jursinski & Associates has expanded their practice to include Estate Planning, Probate and Probate Litigation.

The firm represents clients in all aspects of the Estate Planning & Probate process to include the creation of: living trust, last will and testament, durable power of attorney, healthcare surrogate and living will; asset protection and irrevocable trusts; and probate and probate litigation. Leading the expansion is Associate Attorney James W. McQuade (pictured on the right), who holds a Master of Laws degree in Estate Planning form the University of Miami. He focuses his practice on litigation to include probate as well as complex commercial litigation, commercial leasing, landlord/tenant disputes, foreclosure defense, short sale negotiations, and loan modifications.

Partner Attorney Kara M. Jursinski also earned an LL.M. from the University of Miami in the field of Real Estate Development. Principal Attorney Kevin F. Jursinski is the only attorney in the state who is triple-Florida Board Certified in Real Estate, Business Litigation and Construction Law.

Your Law Firm’s First Call To: Connect the Dots & Solve the Problem • Accident Investigations & Root Cause Analysis • OSHA Compliance and Defense Assurance • Program Improvement Strategies & Assurance

Contact Chris Kirby

Over 35 years of experience ■ United States Air Force Veteran

239-290-SAFE (7233) www.SafetyOneStop.com

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RES GESTAE | June 2014

Legal Briefs Trank joins Henderson Franklin’s Workers’ Compensation Team Mark Trank has joined the Workers’ Compensation practice area at Henderson, Franklin, Starnes & Holt, P.A. He represents insurance carriers, third party administrators and employers in the defense of workers’ compensation claims.

Trank has considerable experience representing government and private sector clients in numerous areas of litigation, including employment, government, constitutional law and private and public education law. Prior to beginning his career as an attorney, Trank was a radio and television news reporter in Miami, Los Angeles and Washington, DC. Trank received his undergraduate degree from Yale University in 1979 and his law degree from the University of Virginia School of Law in 1990.

LCBA to host Voluntary Bar Leadership Conference The Lee County Bar Association has made a successful bid to host the 2014 Voluntary Bar Leadership Conference, July 11 to 12 at the Hyatt Regency Coconut Point Resort and Spa in Bonita Springs. This will be the first time the Florida Bar-sanctioned event will be held in Southwest Florida.

The conference is designed for current bar association presidents and executive directors, but all LCBA members are invited to attend.

President John Agnew will provide remarks during the opening session, with Fort Myers Mayor Randy Henderson next welcoming attendees and introducing keynote speaker Nora Riva Bergman. Registration fee is $175, and includes all sessions, CLE credits and meals, including Saturday’s networking dinner.

Highlights include breakout sessions on voter information, pro bono programming, mentoring, CLE programming, technology, our district appellate courts and effective bench bar programming. Florida Bar President Gregory Coleman will also hold a moderated conversation with attendees. For more information visit the Voluntary Bar Center at floridabar.org.

June 2014 | RES GESTAE

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n l tio ca rova u d p E p ing ing A u in nd nt e Co its P ed Cr

SpeakerS

kevin Carmichael

alan S. Gassman

Jonathan Gopman

Jerome M. Hesch

Friday, April 25, 2014 8:00 a.m. – 4:30 p.m.

Ave Maria School of Law Campus in the Vineyards in Naples Registration: $150

Gregory T. Holtz

al W. king III

For more information and to register, visit:

www.avemarialaw.edu/estateplanning/index.aspx or contact Karen Grebing at: kgrebing@avemarialaw.edu or (239) 687-6404

Jordan G. Lee

Laird a.

Lile

Barry a.

Nelson

Honored to be named the #1 Best U.S.

Catholic Law School for the Devout 1025 Commons Circle Naples, Florida avemarialaw.edu

William a.

Snyder

by The National Jurist and PreLaw Magazine.

Licensed by the Florida Commission for Independent Education, license number 4007. Fully accredited by the American Bar Association.

Bruce Stone

PRSRT STD U.S. POSTAGE

PAID

FT. MYERS, FL PERMIT NO. 147

P.O. BOX 1387 | FORT MYERS, FL 33902-1387 (239) 334-0047 | FAX (239) 334-0523 WWW.LEEBAR.ORG

Here for you… yesterday, today and tomorrow Lending Team – From left bottom row: Pam Edwards, Vice President, Lending; Leah Kirby, Vice President, River District Office Manager; Robbie Roepstorff, President From left middle row: Willy Ocasio, Sanibel-Captiva Office Manager; Rob Lisenbee, Vice President, Lending; Kim Nyberg, Vice President, Professional & Executive Banking; Liz Aurensan, Vice President, Lending From left back row: Geoff Roepstorff, CEO; John Ammons, Vice President, Cleveland Avenue Office Manager

Some things should never change, and the commitment and dedication of your bank is one of them.

As the oldest locally-owned and operated bank in Lee County, we have been here for you for decades with quality service, personal care and local decision making. That is something you can always bank on.

See us for a business loan or a fixed rate residential loan to purchase or refinance. Now is the time to invest in the future, with your local bank.

Our customers enjoy the cost savings of Free Online Banking and Free Bill Pay, the convenience of an expanded ATM network and mobile banking.

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For our convenient locations and services provided, please visit www.edisonnationalbank.com