Issuu

RES GESTAE

THE OFFICIAL PUBLICATION OF THE LEE COUNTY BAR ASSOCIATION

Freedom is Never Free

MAY 2014

The LCBA honors its military members

SERVING THE CITIZENS AND LEGAL COMMUNITY OF LEE COUNTY SINCE 1949

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Contents features

departments

Freedom is Never Free 6 The LCBA honors its military

members

by Sara Fitzpatrick Comito

Letter from the President by John D. Agnew, Esq.

Letter from the Editor by Nanci DuBois

10 Calendar of Events

Be sure to check out

The Real Estate Section, Page 38!

12 Family Law Matters

BUY, SELL, LEASE & Find Other Valuable Real Estate Related Services

Just Say No - Part 2

by Luis E. Insignares, Esq.

EXECUTIVE EDITOR Nanci DuBois 239.334.0047

CREATIVE DIRECTOR April Bordeaux

by John Noland, Esq.

Is it Reviewable?

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

Dress for Success featuring Trisha L. Ryan by Sara Fitzpatrick Comito

25 100 Club 26 Legal Lens

social scene photos

28 The Dish List

where to meet and eat

29 The Dish Ter-Tini’s

33 On the Bench

Magistrate Carolyn Swift

35 From the Bar

Vicki Sproat, Esq.

38 Real Estate where to buy, sell or lease 38 New Members 40 Legal Briefs

RES GESTAE | May 2014

PUBLISHER Connie Ramos-Williams 239.690.9840

16 Appellate Insight

18 Community Connection

Staff Box

ASSOCIATE EDITOR Sara Fitzpatrick Comito

239.334.0047 resgestae@leebar.org

14 Florida Bar Foundation Supports Legal Advocacy

re s g e s ta e

THE OFFICIAL PUBLICATION OF THE LEE COUNTY FLORIDA BAR ASSOCIATION

ADVERTISING DIRECTOR Linda Fiore 239.690.9840 CONTRIBUTING WRITERS Sara Fitzpatrick Comito Nanci DuBois John D. Agnew, Esq. Luis E. Insignares, Esq. John Noland, Esq. Stacy L. Sherman, Esq. Margaret H. White-Small, Esq. 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: LCBA members who have served our country joined our Publisher at the Southwest Florida Museum of History in Downtown Fort Myers. From back, left to right: Dan Endrizal, Roy Foxall, David Sims, Chris Crowley, Cedric Hall, John Agnew, Ron Buschbom.

news and happenings

Cover Photo: Connie Ramos-Williams

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

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.

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Note from the President When Res Gestae’s publisher, CONRIC PR & Marketing | Publishing, suggested a theme for our May issue to be National Military Appreciation Month, I was glad to agree. These 31 days of recognition conclude with Memorial Day. As a veteran myself, Memorial Day obviously holds a special meaning. Twenty years ago, in 1994, I was a young soldier in 2nd Ranger Battalion, stationed in Fort Lewis, Washington. Within a few months, I had my first experience overseas, in operations in Haiti and then in Panama. I left the active duty Army in 1998, but I remained in the Army National Guard. In 2002 and 2003, I ended up serving another 18 months on active duty, with units in the Kentucky Army National Guard. In 2008, I fully separated from the military. I am one of the fortunate majority of veterans who not only survived but has thrived in large part due to skills I attribute to my time in the military. “Thank you for your service” is a thoughtful remark veterans often hear on Memorial Day and Veteran’s Day. While very much appreciated at any time, it is worth noting, there is a significant distinction between the two days. Memorial Day is celebrated the last day in May of each year, specifically to remember the men and women who died while serving in the U.S. Armed Forces. Veteran’s Day, on the other hand, is the November 11th holiday that honors all American veterans, whether living or dead. So, as Memorial Day approaches, and you prepare to fire up your barbeque grills and begin family vacations, plan also to specifically remember our fallen veterans. Even if you do not personally know someone who died while serving or do not agree with the publicized reasons for all the engagements in which we have lost people, the reason to still honor the holiday and those who have fallen is because those that fell did so serving our country and protecting their fellow countrymen. That is a service to us all, and there is little that is more noble. During the history of the United States, more than 1.3 million Americans have died, while serving in our country’s military. Whether they died in the Revolutionary War, the recent wars in Afghanistan or Iraq, or one of the many other wars and conflicts in between, each of our fallen deserves our equal honor and respect. Do so by placing a flag at a grave, attending a formal ceremony, with a moment of personal silence or by taking a few minutes to remind your children what it’s all about. It’s not much, relative to the ultimate sacrifice made by those whom Memorial Day honors.

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

RES GESTAE | May 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 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.

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May 2014 | RES GESTAE

Letter from the Editor Making every moment count is what Practice Building is all about. Have you considered changing what’s not working for you now? Every now and then, we find ourselves “stuck in a rut,” and that’s when shaking it up a bit can add new vigor to your practice, especially if you’ve been doing the same thing for quite a while. Perhaps you’ll take advantage of our Mentoring Program by volunteering to help another attorney – or by asking for mentoring assistance and advice. Or maybe you’ll take a vacation and use the time to consider the dozens of ways you can break out of the doldrums. In any case, make sure you’re not in a rut. Make every moment count. Earlier this year, we heard from two astute women whose business revolves around making a difference for legal eagles like you. If you’d like contact information for Heather Christie and Paula Black, just let me know in an email to info@leebar.org. There are more advisors out there that I can recommend, as well. Do something, though, if you think you’ve fallen into the same-old, sameold routine. If you think I’m talking to you, what must your clients think? Shake it up, and see what happens! This month starts off on Law Day. Each year as part of the very active Law Week programming, we host a courtroom full of students interested in the law for a Question and Answer period with the Judges immediately preceding Oral Arguments with the Second District Court of Appeal. I’d like to thank Judge Darryl Casanueva for his continual support of LCBA projects like this, for his yearly participation in helping students understand the workings of the appellate court system, and for this year’s Second District Court of Appeal Panel Discussion “Best Practices for Attorneys” CLE today, May 1. See Pg. 10 for details. Space is limited to first 123 - RSVP required. For this incredible experience and many more, we have Judge John Carlin to thank, as well. As Chair of our Law Week events, the Lee County Bar Association has enjoyed twenty-one years of fine events, culminating with our Law Week Awards Luncheon this Friday. Get into the swing with our Charity Golf Tournament on June 28th at Pelican Preserve! This year, our charity is PACE Center for Girls of Lee County. Come out to play, take a big sponsorship, sponsor a hole, or just come for lunch and the Silent Auction – but be there for a great cause and camaraderie. There will also be a rack for clothing donations to “Love that Dress!” The dresses collected are sold at the annual LOVE THAT DRESS event, with monies raised supporting the many valuable educational and mentoring programs PACE offers these young ladies, so clear out the closet and help the young ladies from PACE, won’t you? Nanci G. DuBois info@leebar.org | (239) 334-0047 ext. 102 8

RES GESTAE | May 2014

AD DIRECTORY Allied Business Solutions 39 Ave Maria School of Law IBC Barbara Pizzolato 32 Boyle, Gentile, Leonard & Crockett, PA 11 Buschbom Mediations 31 Business Observer 39 Calvo & Calvo Attorneys at Law 31 CONRIC PR & Marketing | Publishing 34 CopyLady IFC Corbin Henderson Company 38 Dan Hopkins & Associates L.L.C. 7 Dial-a-Nurse 9 Donna Tisch 34 Edison National Bank BC Fort Myers Court Reporting 38 Garvin Law Firm 11 Goldberg, Racila, D’Alessandro & Noone, LLC 7 Gregory N. Woods 13 Heather FItzenhagen 19 Henderson, Franklin, Starnes & Holt, P.A. 10 Hendry Street Partnership 37 Henry Lee Paul, P.A. 33 Historical Dean Building 37 Hotel Indigo 30 Jason L. Gunter, P.A. 7 Kevin F. Jursinski, B.C.S. 34 Katharyn E. Owen, Esq. 42 Kempton P. Logan 32 Kuhn Law Firm 9 Kushner & Kushner Attorneys 41 Law Firm of Scott T. Moorey 17 Leonard P. Reina 41 Leslea Ellis, LLC 39 Levins & Associates, LLC 34 Mary Evans 24 McHale Properties 37 Merit Court Reporting, Inc.© 24 Molloy Law 31 Musca Law Office, Inc. 3 Mutual of Omaha Bank 40 Patterson, Eskin and Ball 38 PAYCHEX 42 Royal Palm Trattoria 28 Safety One-Stop 25 She Sings for Chocolate 15 Spivey Law Firm, P.A. 5 Stephan, Cole & Associates 37 T3 Communications 41 The Livingston Firm 9 Veranda Restaurant 28 Von Ahn & Associates 32 Waterford Executive Centre 36 Wilbur Smith Law Firm 15

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Calendar of Events CELEBRATING 90 YEARS: 1924 – 2014

When it comes to mediation and arbitration, we understand.

May May 1

Young Lawyers Division Meeting

TBA: See website at www.leebar.org for details!

Appellate Law Practice Section Meeting

1:30 – 2 p.m., Lee County Justice Center Courtroom 5-H, just before the 2DCA Panel Discussion. Contact Chair: Margaret White-Small, Esq. mwsnsanibel@aol.com

The Second District Court of Appeal Panel Discussion 2 – 4 p.m., Lee County Justice Center

Courtroom 5-H. “Best Practices for Attorneys,” part of our Practice Building theme for 2014. Space limited! RSVP to admin@leebar.org or online at www.leebar.org CLE applied for.

Lee County Assoc. for Women Lawyers “Judicial Appreciation Reception”

Meet the Henderson Franklin attorneys ready to help:

Pincher’s Marina at Edison-Ford

May 2

Second DCA Oral Arguments

8:30 a.m., Lee County Justice Center. The 2nd DCA will hear oral arguments and meet with local high school students prior to the opening of court

Law Week Awards Luncheon

David L. Cook Florida Bar Board Certified Real Estate Lawyer Supreme Court Certified Circuit Civil Mediator

C. Richard Mancini

Robert C. Shearman

Supreme Court Certified Circuit Civil Mediator FINRA Certified Arbitrator

Florida Bar Board Certified Civil Trial Lawyer Supreme Court Certified Circuit Civil Mediator

11:30 – 1:15 at the Sidney and Berne Davis Art Center. Celebrate the accomplishments of our Officers of the Year, Teacher of the Year and Liberty Bell Award winners. RSVP to admin@leebar.org or online at www.leebar.org

May 15 May 23

May 29 L. David Sims Florida Bar Board Certified Marital and Family Lawyer Certified Family Mediator

G. Donald Thomson

Eugene “Chip” H. Smith

Supreme Court Certified Circuit Civil Mediator

These Martindale Hubbell AV-Rated lawyers are skilled in negotiation and mediation, and in representing our clients in binding and nonbinding arbitration in matters of: • Circuit Court Mediation • Commercial and Civil Litigation, including Personal Injury • Construction Law Disputes • Corporate Partnership Disputes • Employment Law and Civil Rights Disputes

• Family Law Mediation • Financial Industry Regulatory Authority Arbitration • Real Estate, including Homeowner and Condominium Associations • Securities and Investment Dispute Mediation

RES GESTAE | May 2014

* By appointment only

June June 6 June 19

June 28

Family Law Practice Section Meeting

Noon. “It’s the Law: Legislative and Rules Update” Presenter: Reuben Doupe, Esq.

Criminal Law Practice Section

Noon to 1:30 p.m., Office of the State Attorney, 2000 Main Street. 6th Floor. Amira Fox and Cynthia Ross will present What Every Attorney Should Know About Ineffective Assistance of Counsel Claims. Soft drinks provided, bring your lunch. Chair: Keith Upson keith@ upsonlawgroup.com

Land Use & Governmental Law Practice Section Meeting Noon, Lee County Public Works, 1500 Monroe

St, 1st FL Conf Rm. Chair: Russell Schropp russell. schropp@henlaw.com

NO LCBA Membership Meeting No Land Use Section Meeting Young Lawyers Division Meeting

TBA: See website at www.leebar.org for details!

LCBA & Family Law Practice Section - FREE Ethics & Professionalism CLE

Noon. Presenters: Hon. Hugh Starnes, Anne Dalton and more TBA. Sponsors for sandwiches: Fort Myers Court Reporting; Dessert: Maxwell, Hendry & Simmons Appraisers. Details on the website. Sign up early!

LCBA Charity Golf Tournament At Pelican Preserve Golf Club, Fort Myers. Join Title Sponsors Roetzel & Andress, PA for a morning of golf followed by a sumptuous luncheon and silent auction to benefit Lee PACE Center for Girls. RSVP admin@leebar.org

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

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Family Law Matters By Luis E. Insignares

In last month’s column, we looked at former First Lady Nancy Reagan’s admonition to “Just say no,” but noted that that simple idea can also have a much broader application than it did in its original context, which broader application we as lawyers would do well to remember in the practice of law. In family law in particular, “Just say no” can apply not only to our actions, but also to those of our clients. In this installment, we’ll look at a couple of the recurring situations in which our clients should “Just say no.” Most of the considerations supporting our responsibility to advise our clients to “just say no” are legal, of course, but some are more in the vein of being a bit of a “life coach,” as I hear they are being called these days. And as unorganized or imperfect as some of us might consider our own lives, our clients may be going through, quite literally, the most emotionally and psychologically trying times of their lives. We don’t have to be perfect in order to help our clients avoid making a bad situation even worse, by pointing out when to “just say no.” As lawyers, we are often referred to as “counselor,” after all. Here are a couple of the more important “just say no’s” that we’ve learned from representing people who are divorcing, or are in disputes with former spouses. First: In all cases, a client’s focus should be forward, not backward, and positive, not negative. If a client comes to us for help, it should be to get the client to a better place, not to punish or hurt someone who’s hurt him or her. Not only is the latter approach unhealthy for the client as a person, it will probably cost him or her more, from a financial standpoint, in the long run. The following quote from Wrona v. Wrona, 592 So.2d 694, 696 (Fla. 2d DCA 1991), is apt: This couple has four children that need all the care 12

RES GESTAE | May 2014

and education that money can buy. Nevertheless, this couple has spent — and our system of divorce has permitted them to spend — roughly 50% of their entire savings on a divorce battle over a big stamp collection and a house full of Hummel figurines. Unless the couple sells their collections to pay their attorneys, it appears that either the attorneys must defer their fees or the parties will ultimately be forced to use virtually all of the equity in their children’s homestead to pay for this Pyrrhic victory. Admittedly, many people approach divorce from a very emotional perspective. It is not the purpose of our system of justice, however, to augment those emotions. (Footnote omitted.)

Second: When there are children from the marriage, the dispute is not theirs! Clients should do their best to shield children from the negativity that all too often accompanies family disputes. Clients should not speak ill of their spouse or “ex” in front of their kids, nor discuss the dispute with them, nor force them to choose between their parents, nor interrogate them about what the other adult is up to. If any of the above paragraph seems familiar, our circuit and many other Florida judicial circuits, have, by family court administrative order, established “Standing Temporary Orders,” and in some cases these administrative orders specifically prohibit such treatment of children. Paragraph 6 of the local Standing Temporary Order for Dissolution of Marriage with Minor Children certainly prohibits such bad behavior, the term of art for some of which is “parental alienation.” As with the issue of “just saying no” to bad behavior vis-àvis a spouse or “ex,” the issue of similar shenanigans directed towards children is even more emotionally and psychologically damaging. Further, the latter case also involves innocent third parties who are probably already going through a very difficult time. But there are purely legal reasons for getting the client to “just say no,” as well. Conduct by a parent which alienates children from the other parent can be punishable by contempt. See, e.g., Burckle v. Burckle, 915 So.2d 747, 748 (Fla. 2d DCA 2005) (affirming trial

court’s finding father in contempt for violation of visitation provision of supplemental final judgment; stating that trial court noted father’s failure to cooperate regarding mother’s right to exercise visitation, and stated that his “‘behavior is a classic example of parental alienation.’”); Cole v. Cole, 130 So.2d 126 (Fla. 1st DCA 1961) (evidence supported chancellor’s findings upon which he held divorced wife in contempt for activities calculated to alienate affections of children toward divorced husband awarded their custody). Thus, even if an appeal to reason is unavailing, perhaps the reminder of the very real possibility of some time in lockup might convince the client to “just say no.” 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.

May 2014 | RES GESTAE

Florida Bar Foundation supports legal advocacy on behalf of children with special education needs by John Noland, Esq., Past President, The Florida Bar Foundation

As much as we as a society care for our children, it’s almost impossible to imagine what some parents will do to theirs. By the age of 16, “Yasmin” had been raped by her father and forced into prostitution. As a victim of human trafficking, she ended up in the custody of the federal Office of Refugee Resettlement, Unaccompanied Children’s Division. Yasmin was transferred to a Fort Myers area residential treatment facility, where it was discovered she had low cognitive function and a hearing impairment. The Florida Equal Justice Center represented Yasmin in immigration proceedings, terminated her deportation proceedings and filed a T-visa petition that would enable her to remain in the United States legally as a victim of human trafficking. Her legal aid attorneys have continued to work with refugee services to create a long-term support system for her. There is no telling what would have happened to Yasmin had she been deported to her native Guatemala. Through its Opportunities Only project, FEJC provides direct representation of school-age children and their parents in accessing free and appropriate education in public schools, as well as foster youth and immigrant children. Recognizing that children have special legal needs, and that those needs were going largely unmet, The Florida Bar Foundation began funding special annual grants for legal assistance to children in the early 1990s. The Foundation’s priorities for its Children’s Legal Services grants include representation of foster youth and access to special education, medical, developmental and mental health services that are required under law. The Florida Equal Justice Center has received $811,933 in Children’s Legal Services grants from the Foundation since the program began. 14

RES GESTAE | May 2014

The Foundation has made the Children’s Legal Services Grant Program one of its top priorities in the face of the devastating impact of low interest rates on revenue from Florida’s Interest on Trust Accounts (IOTA) program. In 201213, The Florida Bar Foundation provided $69,243 to help fund FEJC’s children’s project. Although the grant was much less than in previous years, it continues to be an important source of funding for the project. Gifts from attorneys to the Foundation from the Children’s Legal Services Campaign on the annual Florida Bar Fee Statement help support the Foundation’s Children’s Legal Services grants, along with proceeds from The Florida Bar’s Kids Deserve Justice license plate initiative. A 28 percent increase from 2012 to 2013 in contributions from Florida attorneys through the Florida Bar Fee Statement and direct gifts to the Foundation helped soften the cuts to the Foundation’s Children’s Legal Services grants in the 201314 fiscal year. Although the extended IOTA revenue slump and the resulting depletion of the Foundation’s reserves still necessitated cuts, the Opportunities Only project still received $63,658. I would like to thank all of those who contributed during this time of critical need. Your help has made a tremendous difference in the lives of youth who might otherwise be without a voice. RG

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APPELLATE INSIGHT Is It Reviewable?

Preserving Error (Part 1)

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

As you step into the courtroom to try your case, the last thing on your mind is the possibility of an appeal. However, as you have no doubt already learned, no matter how just your cause and how skilled you are in presenting it, the trial court or the jury will not always agree with you. In that awful moment when you receive an adverse ruling, you may start thinking about appealing what you perceive to be the trial courtâ€™s egregious error. With few exceptions, no matter how egregious the error, unless you have sufficiently preserved it, the appellate court will not consider it. The overarching rule of preservation is that, unless the error is fundamental (which is discussed in more detail below), appellate courts will not consider it if trial counsel failed to preserve the issue at trial. For an error to be sufficiently preserved, it must be presented to the trial court in some way, either by directly raising it, or by objection or motion. Not only must the issue be raised, the trial court must rule on it. Appellate courts review and correct trial court error. Because the appellate court either affirms or reverses trial court rulings, if the trial court was never presented with the error and never ruled on it, i.e., you never objected or insisted on a ruling from the court, the appellate court has nothing upon which to act. There are several ways to preserve an issue or trial court error for appellate review. The most commonly used methods are: (1) objections, (2) motions in limine (3) offers of proof, and (4) motions for rehearing/reconsideration. The most common way to preserve an issue/error for appeal is to make a proper objection at trial. For an objection to preserve an issue or error for appeal, it must be (a) timely or contemporaneous, (b) based on a specific legal ground, and (c) based on the same argument/objection that is later made on appeal. Objections must be timely. In general, to be timely, the 16

RES GESTAEâ€‚|â€‚May 2014

objection must occur within sufficient time for the trial court to correct the error (the contemporaneous objection rule). With that as the underlying rule, the following more specific rules are fairly intuitive. Objections to claims or defenses raised in pleadings must be raised before the pleadings are closed, or they are considered waived. The most common example of this is a claim that the complaint fails to state a cause of action. To properly preserve this claim for review, you must file a motion to dismiss before the time for filing your answer. Likewise, affirmative defenses that are not raised in a motion or responsive pleading are considered waived. Objections to the admissibility of evidence must be made at or very near to the time that the evidence is sought to be introduced. Obviously, the contemporaneousness of the objection is especially critical when you seek to exclude evidence that opposing counsel seeks to admit, since you must object immediately to keep the objectionable evidence from being introduced. If, on the other hand, the trial court refuses to allow you to introduce evidence that you think is critical to your case, you will not only want to object and make a record of the reason that you believe the trial court is incorrect, but you will also want to make a proffer/offer of proof (discussed in more detail below) of the testimony or evidence so that the appellate court will know precisely why that evidence was critical to your case and why the trial court erred in excluding it. Although objections to improper comment or argument by opposing counsel must be contemporaneous to allow the trial court to correct the error by giving a curative instruction to the jury, there is one very limited exception to the contemporaneous objection rule as it relates specifically to improper argument. Improper, unchallenged argument may be preserved by filing

a motion for new trial if the argument was (a) improper, (b) harmful, (c) incurable, and (d) such that it so damaged the fairness of the trial that the public interest in the system of justice requires a new trial. Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla. 2000). Notably, the improper closing arguments made in Murphy, including statements that the jurors would be accessories to tax fraud if they found for plaintiff, that the jurors should employ their “B.S. detector” in reviewing plaintiff ’s evidence, and that if plaintiff won it would be the equivalent of cashing in on a lottery ticket, were not found to meet this test. This exception is very rarely successful. Regarding error as it relates to a jury, the contemporaneous rule applies, as well. An objection to the jury selection process must be made during voir dire and before the jury is sworn. An objection to jury instructions must be made during the charge conference because once the instruction is given, you have waived the right to object. See Fla. R. Civ. P. 1.470(b). Similarly, an objection to an inconsistent verdict must be made before the jury is discharged. However, an objection to an inadequate verdict or an objection to an error on the face of the judgment (such as a failure to make required finding for child custody or attorneys’ fees) may be made by post-trial motion. There is one other very important exception to the contemporaneous objection rule as a whole. You may raise the sufficiency of the evidence in a civil nonjury trial for the first time on appeal. See Fla. R. Civ. P. 1.530(e). Since this exception only covers sufficiency of the evidence arguments, you will not want to leave all your preservation tools at the office when you head out for a civil nonjury trial. However, you will not have to object raising the issue of insufficiency of the evidence to the trial court to preserve it for appeal. Florida requires that the objection is based on specific legal grounds. You need not give the trial court what is, in essence, an appellate brief on the subject, but you do have to advise the trial court of what your objection is in sufficient detail that the appellate court will be able to ascertain on what basis you formulated your objection. The issue on appeal must mirror the objection and grounds stated during trial. For example, you cannot object at trial to

the admission of evidence on the grounds that it is inadmissible hearsay and then appeal on the basis that the evidence was admitted in violation of one of the rules of privilege. Essentially, the objection must be based on the same legal proposition as the proposition you want to argue on appeal. This rule is intended, once again, to allow the trial court to rule on the specific legal ground upon which you base your appeal. While the appellate court may employ the tipsy coachman rule to “overlook” the lack of proper objection in a given instance if the trial court reached the right result based on other grounds, it is not wise to rely on the tipsy coachman rule to cure preservation errors. In subsequent issues of Res Gestae, the authors will examine the remaining three most commonly used methods for preserving an issue or trial court error for appellate review, and discuss additional components of an effective and proper preservation of the record. RG 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.

Margaret H. White-Small provides appellate services and legal research and writing to both civil and criminal lawyers on a contract or project basis. 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.

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scott@GoodPeopleDoGetArrested.com May 2014 | RES GESTAE

Community Connection

SW FLORIDA

Featuring Trisha L. Ryan by Sara Fitzpatrick-Comito

Trisha Ryan’s career path she finished at age 45. Of course, American Bar Association was far from linear, but her rules state first-year law students may not work while they study, relationship with a non-profit and thereafter work hours are strictly limited, not to mention organization has come full difficult to fit in. “It was scary,” she admitted. But she was no circle. Today she’s an attorney longer going it alone. operating her own law firm, She became part of the Professional Women’s Group (PWG), and, she said, “It all goes back where Dress for Success clients attend monthly meetings and to Dress for Success.” enjoy presentations by accomplished women in the community. Ryan got married right out PWG bolsters the careers of successfully employed Dress for of high school, had two kids Success women by providing them with a network of support, and was divorced by 32. She practical information, and inspiration so they can truly thrive. then found herself working This and the many other Dress for Success programs just keep dead-end jobs, taking shifts getting better and better, according to Ryan. Attorney Trisha L. Ryan on nights, holidays and Each year, one member of the Professional Women’s Group weekends just to make ends meet. She thought to herself, “The is chosen through a rigorous selection process to represent her only way that’s going to change is if I do something about it.” local affiliate with a Community Action Project (CAP). The Ryan went back to school and landed an interview when purpose of the CAP is to identify a need in the community she was almost finished with her paralegal degree. There was and affect the lives of a select group for the greater good. As a problem, though: “I didn’t have of this writing, the publisher of this the clothing or the confidence,” she magazine is supporting its Creative recalled. That’s when she went to Dress Director, April Bordeaux, who was “If I hadn’t gone to for Success for help. as the local PWG delegate for Dress for Success when I did, chosen As the name suggests, the 2013-14. As her CAP, April founded organization provides wardrobe I probably wouldn’t be where I Cause for the Paws Southwest Florida support for women who are trying to to end the euthanization of healthy am now.” ~ Trisha L. Ryan make a better life. But tweed, silk and pets by educating the community suede represent only the beginning of about spay and neuter programs a long-term support relationship. “It’s while inspiring people to adopt, not not one of those organizations that you go to and they help you buy, their next furry family member. The recent Yappy Hour the one time,” Ryan explained. “They help you go through any Pawty at Bell Tower Shops raised more than $2,000 for the Gulf possible experience you might go through in business.” Coast Humane Society (GCHS), a no-kill shelter. A second Founded in New York City in 1997, Dress for Success is an event, “Make Everyday a Caturday” to promote cat adoptions, is international not-for-profit organization offering services scheduled to take place at GCHS on Saturday, May 24. designed to help their clients find jobs and remain employed. Dress for Success celebrates women who have transformed With more than 130 affliates around the globe in 125 cities across themselves into leaders after having become a client in a time 15 countries, Dress for Success has served more than 700,000 of need. Ryan gives back by speaking about the organization on women. Locally serving Lee and Collier counties since 2010, occasions such as the annual fundraising event A Fashion Night Dress for Success SW Florida has served more than 900 clients. in Black and White, held in association with White House | Black The mission of Dress for Success is to promote the economic Market. She recommends the organization to women she meets independence of disadvantaged women by providing professional who can benefit like she did. attire, a network of support and the career development tools to Ryan is also the spokesperson for a new sponsorship program help women thrive in work and in life. “Law Suits” developed by Dress for Success SW Florida. This Ryan got that paralegal position – and the mentoring that gave program provides the legal community with an opportunity to her the confidence to change her life. After working that job for transform disadvantaged women to empowered professionals, a year and a half, she decided it wasn’t enough. Emboldened, she excelling in both their careers and personal lives by sponsoring earned a bachelor’s degree and then went on to law school, which one or more women with a suiting or a mini business wardrobe. 18

RES GESTAE | May 2014

Community Connection directly address the needs of a budding entrepreneur by providing business skills training, developing a marketing plan and reviewing business opportunities. The local chapter of the National Association of Women Business Owners is a mentoring partner. Dress for Success Worldwide is now looking into making this program available to other affiliates around the globe. To find out how to get career support from Dress for Success SW Florida, or to help in its mission, visit the local affiliate page at dressforsuccess.org/swflorida. As Trisha Ryan said, “If I hadn’t gone to Dress for Success when I did, I probably wouldn’t be where I am now.” RG Dress for Success SW Florida clients after being suited

A law firm’s Law Suit Sponsorship provides one or more women with a complete suit and accessories, which includes shoes, handbag or briefcase, jewelry or a scarf. The Civil Suit Sponsorship provides one or more women with a mini business wardrobe of up to fifteen pieces of clothing plus accessories to wear on the job. Different levels of sponsorships are available. Other programs include the Going Places Network (GPN) and the Entrepreneurial Spirit Program (E$P). GPN is a hugely successful program to help unemployed and underemployed women gain the skills needed to reenter the workforce. E$P was created by Dress for Success SW Florida to more

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May 2014 | RES GESTAE

Freedom is Never Free The LCBA honors its military members Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty. ~ John F. Kennedy If you sometimes take your freedoms for granted, consider the tenet that freedom is never free. In 1999, Senator John McCain introduced legislation to designate the month of May National Military Appreciation Month (NMAM). As stymied as our Congress can be, the House and the Senate have united behind that cause because there is nothing controversial when it comes to honoring the heroes among us. The military service members among the LCBA’s membership would surely balk at the “H” word. The spirit of NMAM suggests that all those who have stepped up to make it possible for Americans to take their liberties for granted are worthy of our appreciation and support. A few of the LCBA’s service members shared with Res Gestae about their military experience (we know there are many more of you out there!). Some were laconic; others allowed us to draw some stories out of them. It was a nice surprise to be given some photos, too! We were struck that humility seems a military value. Please join us in offering our humble thanks to our military members.

John Agnew, Esq.

Robert Anderson, Esq.

John Agnew served in the military from 1994 to 2008. From 1994 to 1998 he served in the Army as an Airborne Ranger in the 2nd Battalion, 75th Ranger Regiment; and Long-Range Surveillance Detachment, 311th MI, 101st Airborne Division. From 1998 to 2008 he served in the Army National Guard (infantry, in Kentucky and Florida).

Robert Anderson spent six years as a non-commissioned officer in the Marine Corps Reserve, where he managed the information systems for an aviation squadron and served as a marksmanship instructor for his unit.

U.S. Army

U.S. Marine Corps Reserve

Ron Buschbom, Esq. U.S. Marines Corps

Ron Buschbom graduated from the United States Naval Academy at Annapolis, Maryland in 1966 and was commissioned a 2nd Lieutenant in the Marine Corps. He retired disabled in 1969.

Ron Buschbom as a midshipman î

John Agnew (back row on the left) on a mission in Haiti in 1994

RES GESTAE | May 2014

Steven A. Carlson, Esq. U.S. Army

Steven A. Carlson served as an Army Airborne-Ranger from 1971-1974.

Michael Chionopoulos, Esq. U.S. Army

Michael Chionopoulos served in the Army from 1982 to 2007 and was an Infantry Officer in the Middle East.

Richard Collman, ESQ. U.S. Army

Richard Collman was in the Army from 1969 to 1971, and served in a Hawk Missile Battalion.

Michael Corso, Esq. U.S. Air Force

The Minnesota Twins recently honored “Coach” Michael Corso and his friend Coach Charley Winner at a game at Hammond Stadium. Corso wore a Purdue hat, as a local alumni association for his alma mater had planned a ballpark outing on that day. “Coach Charley Winner is a friend, resident of Fort Myers, former coach of NFL St. Louis Cardinals and New York Jets,” explained Corso. ï Coach Corso with Coach Winner “He was there Courtesy of Dan Dannenhauer as coach with the Colts and as a POW in WWII. He is the hero.” One of the oldest living pro football coaches at age 89, Winner spent six weeks in a German P.O.W. camp in the final days of World War II. A captain in the Air Force from 1971-1978, Corso’s experiences included piloting reconnaissance flights over North Vietnam in 1971. As an engineer, he developed ejection seat principles still used today in military aircraft, including the F-22 Raptor and F-35 Lighting aircraft. He also served as a special prosecutor as a member of the JAG program.

Christopher Crowley, Esq. U.S. Army Reserve

Since 1996 Chris Crowley has served in the Army Reserve, both in the Field Artillery and the JAG Corps. Currently he is a Major with the 154th Legal Operations Detachment (TDS),

serving as 3rd in Command as the Operations and Planning Officer, as well as representing soldiers facing administrative separation actions. Crowley previously served in 2004 as part of Operation Iraqi Freedom II, spending most of his time at Camp Arifjan, Kuwait. The Army has sent him to Kuwait, Iraq, Nicaragua, Germany, Hawaii, and all over the U.S. on various missions. Duties included court martials, separation actions, drafting wills and other legal issues. “Being in the military is a great way to see the world, develop your leadership skills and serve your country, all at the ï Crowley’s unit recently met for yearly same time,” he said.

training at Fort Dix, NJ.

Robert E. Doyle, Jr., ESQ. U.S. Marines Corps

Robin Doyle served in the 4th Marine Division, Amtrak Battalion, of the Marine Corps from 1970-1976, and was a 1st Lieutenant.

Daniel J. Endrizal, III, Esq. U.S. Army

Dan Endrizal started out as an enlisted man in the Army Corps of Engineers in 1982. He received a commission as a 2nd Lieutenant in the infantry and was then recruited into Counterintelligence Corps, where he became a special agent (badge # 9524).

Endrizal in Corozal, Panama

í Endrizal in Honduras May 2014 | RES GESTAE

He served until 2006. What does his military experience means to him? “Service above self! The same as the Rotary motto!”

Harold S. Eskin, Esq. U.S. Navy

Hal Eskin served as a Navy Judge Advocate from 1980 to 1985, achieving the rank of Lieutenant while on active duty and later Lieutenant Commander while on reserve duty. He was stationed initially in Newport, RI, then Norfolk, VA and finally Naples, Italy. He said service in the Navy was gratifying on many different levels. “It was an opportunity to see the dedication and professionalism of the many young men and women on base and on the many ships I served on (over 35),” he said. “It gave me great appreciation for the fine work and sacrifice our military makes on a daily basis. It was also an opportunity for great personal growth (professionally and personally) and adventure.”

Sheldon E. Finman, Esq. U.S. Army

U.S. Magistrate Judge Douglas Frazier, Middle District of Florida U.S. Marine Corps

“I grew up in the military,” said Judge Frazier. “It was the centerpiece of my life.” He started off in the Naval Academy from 1968 through 1972 (age 18 to 52), was commissioned as a Second Lieutenant and retired in 2002 as a Colonel. He served as an Artillery Officer and as a Judge Advocate after attending law school on the Marine Corps Law Program. His last billet was as Deputy Director of the Judge Advocate Division for Reserve Affairs at Headquarters United States Marine Corps. He said, “The Marine Corps are the best people you ever hope to serve with.” He added, “Once a Marine, always a Marine. Semper Fidelis!” Judge Frazier as a young Second Lieutenant in 1972 î

Shelly Finman served in the Army in the mid to late 60s. He was an officer in Southeast Asia and he trained troops at Fort Jackson, SC, attaining the rank of Captain. í Col. Frazier in a demilitarized zone in Korea, 2002

í 1st Lieutenant Shelly Finman is pictured second from left in this photo taken in 1967 by the Stars and Stripes (an overseas military newspaper) in Vietnam.

Roy W. Foxall, Esq. U.S. Navy

Roy Foxall served as a Navy JAG from 1991 to 1995. He served in Norfolk, Virginia, Iceland, and South America.

RES GESTAE | May 2014

Captain Frazier in the Philippines in 1979 î

Cedric B. Hall, Esq. U.S. Army

Cedric Hall served in Desert Storm while in the Army, but some of his most memorable experiences happened very early in his term of service. “I still remember my first day arriving on Fort Sill for basic training,” he said, and recalled a chaotic scene involving getting on and off the cattle cart with the other

recruits. “It seemed like thousands of drill sargeants were yelling, and every other word they were cursing and telling us to stand at attention. My thoughts were like Dorothy: ‘I’m not in Kansas no more.’ But I sure did thank God that I had JROTC at North Fort Myers High School under Sargeant Scoffield.”

Ernest H. Hatch, Esq. U.S. Army National Guard

Ernest Hatch served his country in the Army National Guard.

William Kratochvil, Esq.

• USS Parche (SSN 683) – Charleston, SC & Vallejo, CA • USS Ulysses S. Grant (SSBN 631) – Newport News, VA & Groton, CT • USS Theodore Roosevelt (CVN 71) – Newport News, VA His shore assignments included: • U.S. Navy Submarine School, Groton, CT (Advanced Engineering Instructor) • Portsmouth Naval Shipyard, Kittery, ME (Nuclear Ship Superintendent) Liles received a temporary commission in 1980, but continued to hold his enlisted status. Upon separation, he held the dual status as a Lieutenant (junior grade) and Master Chief Machinist Mate (MMCM(SS)).

U.S. Marine Corps

William Kratochvil enlisted with the Marine Corps in September 1990 and got out in August 1994 to attend the University of Florida. He was selected for Presidential Guard Detail, for which he had to go through infantry training, as well as Security Force Training School and receive background clearance. He was then assigned to the Presidential Guard Detail located at the ‘8th and I’ Marine Barracks in Washington DC. “I was there when President Bush (dad) was the President of the United States,” Kratochvil explained. “That Detail was also charged with the protection of The Commandant of the Marine Corps at that Marine Barracks and the US Navy’s Chief Naval Officer located at Washington Naval Yard.” After completing this detail, he then returned to the infantry, based out of Camp Lejeune, NC. Kratochvil then deployed to Okinawa, Japan for six months. Upon his return stateside, he was deployed on the USS Theodore Roosevelt (nuclear aircraft carrier), a Special Purpose Marine Air Ground Task Force as part of a helicopter deployment platoon, and was sent to the coast of Bosnia. He was awarded meritorious promotion to non-commissioned officer (NCO) upon that return back to the United States, among other commendations. Kratochvil volunteered to be deployed to Mogadishu, Somalia, with a new infantry unit as a NCO. “We inserted into Mogadishu and stayed there until the final US withdrawal of troops from there, being the last Marine unit to leave. I floated back on the USS Inchon (helicopter carrier).”

Michael McCabe, Esq. U.S. Navy

Michael McCabe served in the Navy between 1988 and 1995 as a Cryptologic Technician/Analyst/Interpreter (Russian Linguist), and was a 2nd Class Petty Officer.

L. David Simms, Esq. U.S. Army Reserve

David Sims served in the Army Reserve from 1972 to 1980 as a 1st Lieutenant and Adjutant General.

GUY WHITESMAN, ESQ. U.S. Army

Guy Whitesman served in the Judge Advocate General’s Corps of the United States Army between 1982 and 1984.

To ALL of the LCBA’s military members ~ THANK YOU for your service! RG

Paul E. Liles, Esq. U.S. Navy

Paul Liles served on active duty in the Navy from September 7, 1972 through February 28, 1989, and was honorably discharged. During that period of time, he was stationed on the following ships: • USS Shenandoah (AD 26) – Norfolk, VA • USS Orion (AS 18) – Charleston, SC May 2014 | RES GESTAE

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RES GESTAE | May 2014

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

Aloia Roland & Lubell, LLP

100 Club Geraghty, Dougherty, Edwards, P.A.

Parvey & Frankel Attorneys, PA

Arend & Sisk, P.A.

Goldberg, Racila, D’Alessandro & Noone, LLC

Prather and Swank, P.A.

Bonita Springs City Attorney’s Office

Goldstein, Buckley, Cechman, Rice & Purtz, P.A.

Patrone & Kemp, PA

Costello Royston & Wicker, P.A.

Green, Schoenfeld & Kyle, LLP

Pavese Law Firm

Boyle Gentile Leonard & Crockett P.A.

Grossman Law & Conflict Management

Rhodes Tucker

Bruno & Prado, PLLC

Hahn Loeser & Parks LLP

Rubinstein & Holz, P.A.

Burandt, Adamski & Feichthaler, P.L.

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

Sheppard, Brett, Stewart, Hersch, Kinsey & Hill, P.A.

Calvo & Calvo

The Law Offices of Kevin F. Jursinski, P.A.

Spivey Law Firm, Personal Injury Attorneys PA

Coleman & Coleman

Knott Ebelini Hart

Steinberg & Linn, P.A.

Cole, Scott & Kissane, P.A.

Kuhn Law Firm, PA

Strayhorn and Persons, P.L.

Engvalson & Associates, P.A.

Kushner & Kushner

Toll Law

Fort Myers City Attorney’s Office

Lee County Legal Aid Society, Inc.

Viles & Beckman, LLC

Fowler White Boggs, P.A.

McQuagge Law Firm

Webb & Scarmozzino, P.A.

Freidin • Dobrinsky

North Law Firm, P.A.

Weldon & Rothman, P.L.

Fried & Fried, P.A.

O’Halloran & O’Halloran, Attorneys at Law

The Wilbur Smith Law Firm, PLLC

Garvin Law Firm

Osterhout & McKinney, P.A.

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.

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

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May 2014 | RES GESTAE

Legal Lens 1

Photos Courtesy of Jim Jett & Connie Ramos-Williams

Once Social Upon a New Scene Moon Bench Pictures Bar Gala 1 LCBA President, John Agnew, recognizes sponsors 2 Gala Chair, Mary Evans, welcomes guests 3 Past President Miguel Fernandez and wife, Diane 7

8 9

4 Executive Director Nanci DuBois with attorney 1 Stephen Maher 2 5 Judge Archie Hayward, Judge Tara Paluck, and 3 Attorney Amy D’Alessandro 4 6 Dr. Denise and Judge John Carlin with Cynthia Duff

5 7 Gala Music Sponsor for more than four years, Bruce 6 L. Scheiner addresses those in attendance 7 8 Honorable Amy Hawthorne and husband Joseph 8 Cerino, Esq. 9 9 Title Sponsor Henderson Franklin Starnes & Holt, PA filled three tables at the Gala 26

RES GESTAE | May 2014

Legal Lens 1

Photos Courtesy of KG Designs

Past Presidents’ Luncheon 1 Kim Bocelli and Shannon Puopolo with Mike Swider and Melissa Shugars from Lit & More

6 7

2 Junior Achievement President/CEO Anne Frazier addresses the membership 3 Hon. Josephine Gagliardi reviews A View from the Bench children’s book by Jacqueline Buyze 4 Mark Martella, Lisa Poulin & Kathy Robinson 5 Christina Schwinn addresses members about Junior Achievement projects

6 Past Presidents Marcy Shaw and Karla Campos Andersen 7 Jacqueline Buyze shows books for children she wrote to President John Agnew, including A Story of Lawyers and Views from the Bench 8 Magistrate Carolyn Swift with LCBA Membership Committee Chair, Carlos Kelly 9 LCBA recognizes its Past Presidents for their service and dedication May 2014 | RES GESTAE

The Dish

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

Live Jazz Pianist & Sax every Friday, 6-9pm at the Piano Bar Banquet Room Available for your next Corporate Gathering Michael Filzenger, Owner and Chef (former Owner of Bogerts Chop House)

239.204.9059 www.RoyalPalmTrattoria.com 1400 Colonial Blvd., #35 • Fort Myers Located in Royal Palm Square behind the Broadway Palm Theater Takeout Available • Closed Sundays

RES GESTAE | May 2014

Try the Extraordinary 239-332-2065 Lunch Mon - Fri Dinner Mon - Sat Closed Sunday Valet Service at Dinner Reservations Recommended

Extraordinary Since 1978

Downtown Fort Myers River District www.verandarestaurant.com

The Dish

Ter-Tini’s Tapas Bar & Restaurant Martinis, Tapas, and More! In The Big Lebowski, The Dude dreams of a great wall of bowling shoes reaching to the bright full moon. If you don’t know what I’m talking about, get thee to your favorite movie streaming service, go. For those wise to the ways, sing along: “I just dropped in just to see what condition my condition was is. Yeah, yeah, oh yeah…” A-hem. Enter Ter-Tini’s Bar, and you’ll crane your neck skyward to regard a massive wall of booze. There are shoes, but they’re platform stilettos. If you want bowling shoes, they’re available just through the door. It’s true: the recent addition of Ter-Tini’s elevates Gator Lanes from humble bowling alley to veritable entertainment complex with indoor and outdoor seating, replete with neon lighting. Things get “complex” for The Dude as new information comes to light during the course of the plot, but the concept of Ter-Tini’s is simple. It’s a place to meet friends, take in some music, maybe kick up your heels, get a bite to eat or generally chill out. One would be equally at home in cocktail attire or in a bowling shirt, although Ter-Tini’s does endeavor to be a bit more upscale than the typical bowling alley bar. The Dude’s ubiquitous bathrobe might be a stretch, especially in contrast to the servers’ black corsets. I’m thinking that when off-duty, those gals might have to opt for the skinny cocktails I saw on

the menu. On a recent visit one Thursday evening, my party was treated to a live performance by Obe Gonzalez. The local singersongwriter played a tight guitar and rocked a respectable afro as we nibbled on some crab and avocado dip, which was mostly crab and not that goopy stuff that’s so popular served in bread bowls. The word tapas has infiltrated our lexicon and, as often happens, comes to mean something different from what was intended. I’m no purist, but unless I see something resembling chorizo or pulpo or anything con alioli, I have a bit of a hard time referring to it as tapas. Maybe I am a purist. Semantics aside, the menu includes a nice assortment of mix-and-match noshes to go with your drinks. Terri is one of the owners, along with her husband Kevin. If they can mash her name with martini to generate the name of the place, then they can take additional liberties with language. And some of the dishes are more like small-plate versions of traditional entrees. After a long day of work, isn’t it nice to grab a glass of wine, your favorite beer or a fun cocktail and enjoy a couple of different appetizers? There’s no commitment involved. You can meet someone later for a more-traditional meal somewhere, or you can fill up on a sampling of treats and decide to bowl a

May 2014 | RES GESTAE

The Dish few frames. Happy hour at Ter-Tini’s happens 4:30 to 7:30 p.m. Wednesday through Sunday. You’ll enjoy a couple bucks off small plates like oysters rockerfeller, sesame seared ahi tuna, salads and flatbreads. The bruschetta tenderloin is a hearty choice, with seared filet mignon, carmelized onions, roasted peppers and mushrooms with cheddar and balsamic glaze. Another intriguing choice is the Teri-Q Pork Pops. See that word play at…play? Three French-cut pork “pops” are slow

roasted and served with garlic mashed potatoes. Ter-Tini’s is a popular spot for private events and offers a special menu including hand-served appetizers, carving stations, pastas and entrees. On the night of our visit, TerTini’s was hosting a gathering for Chico’s FAS. Their buffet wasn’t well guarded, and they had some delicious meatballs (so I’ve heard). With the crash of bowling pins perceptible between live songs, one can be sure: The Dude abides. RG Ter-Tini’s 7050 Crystal Drive, Fort Myers, FL, 33907 239-277-5475 ter-tinis.com Wednesday-Sunday: 4pm-close Sara Fitzpatrick Comito is the marketing writer and publications 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@ConricHoldings.com.

Happy Hour 5:00 pm – 6:00 pm in Broadway Bistro Thur - Sat Breakfast and Lunch Daily and Dinner Thur - Sat Live Music • Art and Music Walk • Great Roof Top Bar www.hotelindigo.com/fortmyerss • Phone 239-337-3446

Hotel Indigo Downtown River District • 1520 Broadway Ave • Downtown Fort Myers, FL 33901 30

RES GESTAE | May 2014

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RES GESTAE | May 2014

On The Bench Magistrate Carolyn Swift Presiding in cases between people who were once in a loving relationship but are now at odds can be tricky territory. For Magistrate Carolyn Swift, it’s a dream come true. “I think I get to use the best of the skills I’ve acquired during nearly 15 years of family law practice.“ In 2009, Magistrate Swift took a leave of absence from private practice with Henderson Franklin while expecting her second child, and her daughter was only a year old. Three years later after working with Luis Insignares, she took up her current post as a magistrate concentrating on family law matters, working under the supervision of Judges John S. Carlin and G. Keith Cary. The challenges are inevitable, given the very personal, emotional factors involved. “These are real people with real issues that affect their children, or there are financial necessities we’re arguing about in the family law system,” Magistrate Swift said. “The reward is bringing closure to a difficult situation.” Moreover, given the opportunity to speak within the structure of the courtroom, people sometimes discover they’re not as far apart as they thought they were. Other rewards include bearing witness to parents who make strides to improve their lives for the sake of their kids. In her two years of service, Magistrate Swift has had cases where she has seen the family on a half dozen occasions. She’s seen parents who had lost access to their children get help for substance abuse or a mental illness and regain their parental rights. She noted some attorneys have a misconception that involving a magistrate can delay the process. In fact, the opposite is often true. The magistrates usually handle the pro se dockets, however, which can be more time-intensive than if the parties retain counsel. Magistrate Swift grew up in Southwest Florida, and first became interested in law as part of her involvement with the Monday Group, the now-famous group of Lee County students who worked to preserve the Six-Mile Cypress Slough for future generations. When she’s not on the bench, Magistrate Swift is often on the T-ball field with her four-year-old son and six-year-old daughter, the only little girl on the team. “I’m also an avid FGCU basketball fan,” she said, “and have been since before it was called Dunk City.”

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From the Bar Vicki Sproat, Esq. Vicki Sproat never expected to have a legal career–certainly not one spanning 36 years. “My career path has been more a result of serendipity than careful long-range planning. I graduated from college with a degree in sociology and no clear idea of what I wanted to do. I was trying to find myself when I applied for law school.” After graduating from Ohio State University College of Law, Sproat worked as the first female attorney in an insurance defense firm in Columbus. “I thought I would work there forever – that is until I vacationed on Captiva and wondered if I could practice law in paradise.” Without a resume in hand, she knocked on the doors of several local law firms. Henderson Franklin opened the door to welcome her as its first female attorney in 1980. Sproat is still there 34 years later. She refuses to accept any accolades for being a trailblazer. “In many ways, it’s a lot easier to be the first, rather than the second or third,” she said, explaining that as a pioneer, she enjoyed a certain freedom from expectations. Sproat has set the bar high. She is one of only seven attorneys in the state of Florida to be Board Certified in both Civil Trial Law and Labor & Employment Law. Employment law is a constantly evolving area, which she considers challenging. “I enjoy the mix of litigation and client counseling that an employment law practice offers.” Sproat counts herself fortunate to have gained courtroom experience early in her career. She is always happy to share that experience and advice with others. Sproat has coached high school students in mock trial competition and served as a mentor for summer interns and associates. Her door is always open. “I don’t always have the answer, but I am happy to share my insights. It’s just flattering to be asked.” Sproat is learning to cultivate the fine art of enjoying leisure time now that her two children are grown. In her free time, she enjoys reading books that do not have citations or footnotes, physical fitness activities that do not require athleticism and spending time with her family, which includes husband Judge Donald Pellecchia, children, step-children, and grandchildren.

Looking for an Expert Witness to testify in real estate, business or construction litigation?

Call Attorney Kevin F. Jursinski He is deemed an “expert” and “specialist” by the Florida Bar in: Real Estate Business Law and Construction Litigation He is the only attorney in Florida who is board certified in all three areas simultaneously His Resume Includes: • More than 30 years legal experience • More than 30 years as a Florida Licensed Real Estate Agent • More than 30 year member of Attorney’s Title Fund • Qualified and testified as an expert witness in: * US District Court * 20th Judicial Circuit in Lee, Collier and Charlotte Counties • Appointed as a special master for Real Estate Disposition matters • AV Preeminent rated by Martindale Lawyers Magazine • Five-time Super Lawyer by Super Lawyers Magazine • Published Author: Florida Bar Journal

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Offering a wide range of valuation services to include various property types from Marco Island to Bradenton and East to Okeechobee. Specializing in expert witness testimony and litigation support. Bill Cole is a Fort Myers native with over 20 years of experience in commercial real estate. He is a State-certified general real estate appraiser (RZ2298) and has been qualified as an expert in both circuit and federal court.

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May 2014 | RES GESTAE

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RES GESTAE | May 2014

Sebastian Nye-Schmitz The Nye-Schmitz Law Firm, P.A. Noel J. Davies Roetzel & Andress, L.P.A. Bobbie Celler Celler Law, P.A. Steven S. Leskovich Galasso & Leskovich, LLC Amanda Marie Smith Cole, Scott & Kissane, P.A. Joel W. Hyatt Hahn Loeser & Parks, LLP Bradford Thomas Willard Office of the State Attorney Twentieth Judicial Circuit

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May 2014 | RES GESTAE

Legal Briefs Brown marks one year with Freidin Dobrinsky Brown and Rosenblum Joel H. Brown, former Chief Judge of Florida’s 11th Judicial Circuit, recently celebrated one year of partnership with Freidin, Dobrinsky, Brown & Rosenblum P.A. The firm has offices in Miami, Fort Lauderdale and Fort Myers. Brown practices all aspects of family law: divorce, child custody, child support proceedings and multistate and international jurisdictional issues. Brown is Florida Bar board certified in civil trial and also handles personal injury, medical malpractice and product liability cases. He is a Florida Supreme Court certified family mediator. In 1994, Gov. Lawton Chiles appointed him to the 11th Judicial Circuit Court, where he served in various divisions with increasing levels of responsibility. He served as an administrative judge of the family division from 2001 to 2009. He was elected Chief Judge in 2009, and he served in that capacity until joining the firm in April 2013.

Grant named Real Estate Certification Committee chair Richard C. Grant has been appointed chair of the Real Estate Certification Committee of The Florida Bar for 2014-2015. He has been a committee member since 2009. He previously served as a member from 1999-2004 and as chair for 2002-2003. Grant leads the real estate and business practice group at Grant Fridkin Pearson, P.A. and concentrates his practice in real estate development and financing, real estate and business acquisitions and mergers, corporate and partnership law, construction law, condominium law, and real property titles and land use. He has practiced law in Southwest Florida since 1979. Grant has been board certified in real estate by The Florida Bar since 1987. He has been recognized by The Best Lawyers in America as Fort Myers Area Best Lawyers Real Estate Lawyer of the Year for 2009 and 2013 and Fort Myers Area Best Lawyers Corporate Lawyer of the Year for 2011.

RES GESTAE | May 2014

Legal Briefs Healy appointed Florida Bar diversity chair Susan Healy, a partner in the Naples law firm Vernon Healy, was appointed the 2014-15 chair of the Florida Barâ€™s Diversity and Inclusion Committee. She currently serves as a vice-chair. The Standing Committee on Diversity and Inclusion was created last year, with the mission of fostering diversity and inclusion in Floridaâ€™s legal profession. The Committee is dedicated to making leadership roles within the profession and The Florida Bar accessible to minorities, women, members of the LGBT community and persons with disabilities. A recent study by the National Association for Law Placement (NALP) shows that although women and minority are graduating from law school in record numbers, they rarely move up to partnership positions. The numbers are even worse for lawyers with disabilities. In 2013, law firms that responded to the NALP survey reported that only 0.3% of their lawyers had disabilities.

Davies joins Roetzel as associate Noel J. Davies has joined the Fort Myers office of Roetzel & Andress LPA as an associate in the firmâ€™s Real Estate Practice Group. A Fort Myers native, Davies will focus his practice on zoning and land use matters, as well as commercial litigation. Previously he was a litigator at Childress Duffy, Ltd. in Chicago, where his practice involved the representation of clients throughout the United States in first party and commercial general liability insurance coverage and bad faith disputes, broker and producer liability, and construction defect litigation. Davies is licensed to practice law in both Florida and Illinois. He attended Florida State University College of Law, where he served as Research Assistant to Dean Donald J. Weidner, was a member of the Journal of Land Use & Environmental Law, and was vice president of the Dispute Resolution Society. Prior to law, Davies was an international concert pianist.

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â€‚ May 2014â€‚|â€‚RES GESTAE

Legal Briefs Scharlacken joins Cohen & Grigsby Lorna Scharlacken has joined Cohen & Grigsby ‘s Naples office as a partner. Scharlacken counsels individuals and families in estate planning matters, with a special emphasis on high net worth families, business succession planning, the preservation and transfer of wealth and federal estate tax matters. She also advises personal representatives/executors and trustees in the administration of estates and trusts. Scharlacken works with families to develop strategies to promote positive family dynamics, to reduce tax liabilities, to preserve wealth and to meet charitable goals. Scharlacken joined Cohen & Grigsby, having come from another Naples-area law firm where she was a partner specializing in complex estate planning matters, ranging from revocable living trusts, to private family foundations and family limited partnerships. Scharlacken is also an experienced business lawyer and assists families with the transition of family owned businesses and the transfer of wealth through generations.

Abel joins the Spivey Law Firm Andrew Abel has joined the Spivey Law Firm as an associate attorney. He focuses his litigation practice on catastrophic personal injury and wrongful death. Previously Abel practiced in a firm in Miami, focusing on litigation in Florida’s state and federal courts. He is admitted to the Bars of Florida, Ohio and the U.S. District Court for the Southern District of Florida. In addition to his litigation experience, Abel served as a judicial intern to the Honorable Adalberto Jordan in both the U.S. Court of Appeals for the Eleventh Circuit and the U.S. District Court for the Southern District of Florida, and for the Honorable Mark King Leban in the Appellate Division of the Eleventh Judicial Circuit of Florida. Abel attended St. Thomas University School of Law where he ranked in the top ten percent of his class and served as Managing Editor of the Law Review.

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Ave Maria School of Law Named

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CATHOLIC LAW SCHOOL IN THE UNITED STATES for the DEVOUT By National Jurist’s PreLaw Magazine National Jurist’s PreLaw Magazine has ranked Ave Maria School of Law the most devout Catholic law school in the nation. We are proud of this recognition because it underscores the importance we place on our mission of teaching the law as a vocation. We strive to educate lawyers who will fight to defend our Constitution, promote a Culture of Life, and advance the cause of justice and freedom for all, a noble mission in today’s world.

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