n C B ssoCIaTIon I T I M F The P essage roM resIdenT done by letter, ... Our guest speaker, Senator Joe Negron, will address current issues now in Congress and how they may impact

In ThIs Issue

The sIde Bar newsleTTer Published monthly, excluding July, by the Martin County Bar Association as a service to its membership.

If you have an article, opinion, news or other information for publication in the SideBar, please call Michelle Katzman at (772) 220-8018 or email information to:[email protected]

The due date for all advertisements, articles and announcements is the 5th of the month preceding publication.

Contact Us:MarTIn CounTy Bar assoCIaTIon

PO Box 2197 Stuart, FL 34995-2197

MCBa 2010-2011exeCuTIve Board:

Voicemail Line: (772) 220-8018

E-Mail: [email protected]

Website: www.martincountybar.org

President Shaun T. Plymale

Vice PresidentGregory S. Weiss

TreasurerGeorge W. Bush, Jr.

SecretaryJennifer A. Waters

Immediate Past PresidentPreethi Sekharan

Executive DirectorMichelle D. Katzman

Message FroM The PresIdenT

newsleTTer oF The MarTIn CounTy Bar assoCIaTIon

augusT 2011

Shaun T. Plymale

The huge gavel I was entrusted with at the banquet is sitting on my credenza with the names of the Presidents who served before me etched in the golden metal wrapped around the end. The gavel itself begs the question of what the role of the President of the MCBA is and, furthermore, the MCBA itself.

Asking myself that question inevitably leads me to begin on my role as an advocate for my clients and why I am a member of the MCBA in the first place. Now I am certain that originally I joined on the advice of many of the more experienced lawyers I spoke with when I returned to practice law in Stuart, but ultimately aren’t we all members of professional organizations to be better lawyers? Better advocates for our clients?

Many times I hear from nonlawyers that we are “dealbreakers” instead of “deal-makers.” Certainly, many people feel we create more problems than we solve, but ultimately we are problem solvers for our clients. We use our knowledge of the law and our skills as a lawyer to help people with their problems. Ergo, the real question is, how does the MCBA help us solve people’s problems?

The resources of the MCBA are immense--the CLE’s, access to great speakers, a phenomenal directory, etc.--but the best value is in fostering the relationships we have with our fellow lawyers. This can be best demonstrated by the difference between dealing with fellow members of the MCBA and lawyers from outside of our area. If I am dealing with an attorney from outside the area, most of our communication is done by letter, fax, or messages traded through our assistants and secretaries. Much of the disputes seem petty and trivial, and fail to get to the heart of the issue our clients hired us to handle. Discovery motions abound (just look at UMC), and a great deal of time gets wasted due to the fact that we don’t know the lawyer on the other side. If we know opposing counsel, many of the issues are resolved with a simple phone call.

Continued On Next Page . . .

• President’sMessage(Pg.1)• August19,2011MCBAMeeting(Pg.3&Pg.36)• 2011-12MCBACommitteeChairs(Pg.4)•CheersUpdate(Pg.31)• 2011-12MembershipInvoice(Pg.32)•NewsandEvents

The Presidential Gavel was passed at the Annual Installation Banquet on May 21, 2011 from now Immediate Past President, Preethi Sekharan to 2011-2012 President, Shaun Plymale

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The Side Bar - auguST 2011

The demands placed on each of us with respect to our time make it increasingly difficult to develop relationships with other lawyers. The MCBA provides that opportunity. As with everything in life, you get out what you put in, and this is certainly true with the Martin County Bar Association. Take advantage of the opportunities, attend the luncheons, join the Committee for your practice area, and attend the social functions. Not only will you get to know your fellow members on a more personal level, but you will learn how others in our profession are handling the is-sues we are each faced with on a daily basis.

My goal for the next year is to get to know the other members of the MCBA and, hopefully, help each of you to do the same. I think it will make me a better advocate, a better problem solver for my clients, and I know I will have a lot of fun doing it. Thanks again for the opportunity to serve as your President; I am looking forward to a great year.

Shaun T. Plymale 2011-12 MCBA President

Continued From Previous Page . . .

PresidentShaun Thomas PlymaleChapman&PlymaleLaw,P.A.100SWAlbanyAvenue,Suite110Stuart,FL34994Tel:772-283-2626E-Mail:[email protected]

Vice-PesidentGregory Scott WeissLeopold~Kuvin,P.A.2925PGABoulevardPalmBeachGardens,FL33410Tel:561-515-1400E-Mail:[email protected]

TreasurerGeorge W. Bush, Jr.FoxWackeenDungey,EtAl3473SEWilloughbyBlvdStuart,FL34994-5060Tel:772-287-4444E-Mail:[email protected]

SecretaryJennifer A. WatersFox,Wackeen,Dungey,Beard,Sobel,Bush&McCluskey3473SEWilloughbyBoulevardStuart,FL34994Tel:(772)287-4444Email:[email protected]

Immediate Past PresidentPreethi SekharanPageMrachekFitzgerald&RosePA1000SEMontereyCommonsBlvdSte306Stuart,Florida34996Tel:(772)221-7757Email:[email protected]

Executive DirectorMichelle D. KatzmanPOBox2197Stuart,Florida34995VoiceMailLine:(772)220-8018E-Mail:[email protected]

Martin County Bar Association 2011-2012 Executive Board

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MCBA AUGUST 19, 2011 LUNCHEON MEETINGGuest Speaker: Joe Negron, State Senator – Florida District 28

On Friday, August 19, 2011, the Executive Board of the MCBA invites its members, prospective members, and any guests to join us for our monthly luncheon meeting at Monarch Country Club in Palm City.

Our guest speaker, Senator Joe Negron, will address current issues now in Congress and how they may impact Florida in general, and specifically Martin County. His state of the judiciary and legislature commentary are greatly anticipated.

Joe Negron represents District 28 in the Florida Senate and is Chairman of the Senate Judiciary Committee and a member of the Select Committee on Florida’s Economy. From 2000 to 2006, Joe served in the Florida House of Representatives, the final two years as Chairman of the Appropriations Committee.

He is a native Floridian, born in West Palm Beach. Joe has an undergraduate degree from Stetson University, a law degree from Emory University, and a master’s degree in public administration from Harvard University. He practices law with the statewide law firm of Akerman Senterfitt.

Joe and his wife, Rebecca, have three children and live in Stuart. Joe has focused his legislative efforts on the budget, insurance issues, and protection of individual liberties.

As always, attendees at the monthly Bar luncheon will earn one hour of CLE credit. We look forward to another great turnout. Please call 772-220-8018 by August 16th to RSVP if you would like to attend.

Governor Scott Appoints Mark W. Klingensmith to the Nineteenth Judicial Circuit Court

Tallahassee, FL – Governor Rick Scott has announced the appointment of Mark W. Klingensmith of Stuart to the Nineteenth Judicial Circuit Court. Klingensmith, 50, is the mayor of Sewall’s Point, Florida. He has practiced with Sonneborn, Rutter, Cooney and Klingensmith since 1993. Previously, he practiced

with Metzger, Sonneborn and Rutter from 1986 to 1992. He received both his bachelor’s and law degrees from the University of Florida.

“With 25 years’ experience in handling complex litigation cases, Mark has gained the knowledge and skill necessary to effectively and efficiently serve the court,” Governor Scott said. “I am confident that he will base every ruling on a fair, reasoned and impartial application of the law.”

Klingensmith will fill the vacancy created by the elevation of Judge Burton Conner to the Fourth District Court of Appeal. Investiture details will be posted on the MCBA website as soon as they become available.

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The MCBA Executive Board Thanks The2011-12 MCBA Committee Chairs For Agreeing To Serve.

We Look Forward To A Successful Bar Year!

Admiralty & Maritime LawBarbara Cook27 E. Ocean BoulevardStuart, FL 34994Tel: [email protected]

AppellateShelly StirratFox, Wackeen, Dungey, Beard, Sobel, Bush & McCluskey3473 SE Willoughby BoulevardStuart, FL 34994Tel: (772) [email protected]

BankruptcyJohn L. MartinJon L Martin Attorney At Law901 SW Martin Down Boulevard Suite 309 Palm City, FL 34990 Tel: 772-419-0057E-mail: [email protected]

Constitution WeekAlan O. Forst3553 SW Thistlewood LanePalm City, FL 34990Tel: (772) [email protected]

Criminal LawJosh Deckard and Richard KibbeyLaw Offices of Richard D. Kibbey, PA416 SW Camden Avenue Stuart, FL 34994 Tel: (772) [email protected]

Employment & Labor LawBob KilbrideFox, Wackeen, Dungey, Beard, Sobel, Bush & McCluskey, LLPTel: (772) [email protected]

Family LawLinda WeiksnarCrary - Buchanan759 SW Federal Hwy, Suite 106 Stuart, FL 34994 Tel: (772) 287-2600 [email protected]

FASH (Florida Attorney’s Saving Homes)Jane CornettCornett, Googe & Associates, P.A.401 SE Osceola Street Stuart, FL 34994 Tel: (772) 286-2990 [email protected]

ForeclosureTrent SteeleLaw Offices of W. Trent Steele8902 Bridge Road Hobe Sound, FL 33455 Tel: (772) [email protected]

Golf TournamentJack SobelFox, Wackeen, Dungey, Beard, Sobel, Bush & McCluskey, LLPTel: (772) [email protected]

and

Larry Stewart73 SW Flagler Avenue Stuart, FL 34994 Tel: (772) [email protected]

ImmigrationScott DevoreThe Law Office of Scott D. Devore4440 PGA Boulevard Suite 600Palm Beach Gardens, FL 33410Tel: (561) [email protected]

Judicial RelationsHon. Jack Cox and Richard LevensteinC/O Kramer, Sopko & Levenstein, PA853 S.E. Monterey Commons Blvd. Stuart, FL 34996 Tel: (772) 288-0048 [email protected]

Justice TeachingHonorable William L. Roby100 SE Ocean Blvd., Suite A263 Stuart, Florida 34994 Tel: 772-288-5560

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Law LibraryEric BuetensBuetens & Buetens, Attorneys8965 SE Bridge Rd. Hobe Sound, FL 33455 Tel: 772-546-6633

ParalegalJackie Miller, FRPWilliam N. Swift, P.A.901 SW Martin Downs Boulevard Suite 208Palm City, FL 34990Tel: (772) [email protected]

Probate, Trust, Elder Law, GuardianshipRay RobisonFox, Wackeen, Dungey, Beard, Sobel, Bush & McCluskey The Tower Building at Willoughby Commons3473 SE Willoughby Boulevard Stuart, FL 34994 Tel: (772) [email protected]

ProfessionalismMark MillerAppellate Law Office of Mark Miller, P.A.50 SE Ocean Boulevard Suite 202 Stuart, FL 34994 Tel: [email protected]

ScholarshipPreethi SekharanPage, Mrachek, Fitzgerald, & Rose, P.A.1000 SE Monterey Commons Blvd.Suite 306Stuart, Florida 34996Tel: (772) [email protected]

Small & Solo PracticeJason Berger850 NW Federal Highway Suite 103Stuart, FL 34994Tel: [email protected]

Social CommitteeMark MillerAppellate Law Office of Mark Miller, P.A.50 SE Ocean Boulevard Suite 202 Stuart, FL 34994 Tel: [email protected]

and

Chad HastingsLesser, Lesser, Landy & Smith, PLLC101 Northpointe ParkwayWest Palm Beach, FL 33407Tel: (772) [email protected]

TennisScott KonopkaPage, Mrachek, Fitzgerald, & Rose, P.A. 1000 SE Monterey Commons Boulevard Suite 306Stuart, FL 34996Tel: (772) [email protected]

Trial LawyersPaul McMahonCushnie & McMahon, P.L. 543 NW Lake Whitney Place, Suite 106Port St. Lucie, Florida 34986Tel: (772) [email protected]

Young Lawyer’s DivisionPaige HardyPage, Mrachek, Fitzgerald & Rose, PA1000 SE Monterey Commons Boulevard Suite 306 Stuart, FL 34996 Tel: (772) 221-7757E-mail: [email protected]

The MCBA Executive Board Thanks The2011-12 MCBA Committee Chairs For Agreeing To Serve

We Look Forward To A Successful Bar Year!

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Premier Sponsor ($3,250) - PNC National Bank; Sapphire Sponsors ($1,200) - Steinger, Iscoe & Greene; WESTLAW; Williams, Leininger & Cosby, P.A.; Lesser Lesser Landy & Smith, PLLC; Matrix Mediation, Inc.; Fogel Capital Management; Gordon & Doner; Cocktail Hour Sponsors ($1,000) - Leopold~Kuvin; Fox, Wackeen, Dungey, Beard, Sobel, Bush & McCluskey; Gulfstream Business Bank; Page, Mracheck, Fitzgerald & Rose, P.A.; Ruby Sponsors ($800) - Comerica; LexisNexis; Ward, Damon, Posner, Pheterson & Bleau, P.L.; Emerald Sponsors ($600) – A Law Office of Laurie J. Goldstein P.A.; Hobart Deposition Services.

Fox, Wackeen, Dungey, Beard, Sobel, Bush & McCluskey

Page, Mrachek, Fitzgerald & rose, P.a.Attorneys at Law

BOMBAY NIGHTSThe MCBA Sincerely Thanks Its

Generous 2011 Banquet Sponsors!

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The Golf Committee and Executive Board of the Martin County Bar Association would like to thank these generous sponsors for their contributions to

this year’s President’s Cup Golf Tournament:

CORPORATE SPONSORSWEST-THOMSON REUTERS

CONCHY JOE’S SEAFOOD RESTAURANTGULFSTREAM BUSINESS BANK

LEXIS~NEXIS

HOLE SPONSORS WEST-Thomson Reuters

Comerica Bank

GENERAL SPONSORS11 Maple StreetAnthony’s Coal Fired PizzaBalanced BodyworksCar Pro Auto SpaCathy’s Beach Connection RestaurantCK Café and BakeryCourtine’s Duffy’s Sports GrillEagle Marsh Golf ClubFirst Watch RestaurantFlanigan’s Seafood Bar & GrillGolf GearGolf USAHammock Creek Golf Club

Ian’s Tropical GrillIsland Dunes Country ClubJersey Mike’s SubsMaltz Jupiter TheatreMariner Sands Country ClubMonarch Country ClubMulligan’s Beach HouseOsceola Street CaféPalm City GrillPei Wei Asian DinerPeter’s SteakhousePiper’s LandingSailor’s ReturnTapas Latin Fusion

Thai BistroThe Black MarlinThe Champion’s Club at SummerfieldThe Evergreen ClubThe Fox ClubThe Legacy Golf ClubThe Prawnbroker GrillThe Yacht & Country ClubU.S. Trust, Bank of AmericaWabobaWilloughby Golf ClubYacht Concierge

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Foreclosure Committee Trent Steele, Chair

Hopefully everyone is enjoying the dog days of summer. As usual, there is much to report in the ever evolving world of foreclosure law. By now the effects of the new 19th Judicial Circuit foreclosure

procedures that went into effect on June 30th will be felt. Be sure to visit the 19th Judicial Circuit website and view the link on foreclosure procedures for Indian River and St. Lucie counties. Judge Metzger has also revised her procedures, which can be viewed on her website. For St. Lucie County cases, all matters concerning residential foreclosures will now take place only on Fridays at the St. Lucie West Courthouse Annex. In Martin County, a senior judge will no longer be running a foreclosure docket on Thursdays. Rather than discuss cases that have come down recently (almost all of which seem to reiterate the impropriety of granting summary judgments when the issue of whether a notice of acceleration has been sent is present), I would like to respectfully suggest that everyone who handles foreclosure cases, either as an attorney, judge, or paralegal, read the written testimony of Georgetown Professor Adam J. Levitin, which he recently provided to the House and Senate Financial Services Committees (http://financialservices.house.gov/Media/file/hearings/111/Levitin111810.pdf).

I believe it is one of the clearest, most concise and honest representations of the foreclosure crisis I have read. As a professor, high powered Wall Street lawyer, and congressional advisor, Levitin has a clear understanding of the problem from all sides, and presents the problem in a way that most everyone can understand. Of particular interest to me is his explanation of why the securitization of most residential loans is a serious issue in foreclosure cases. I have been shocked at the lack of discussion of Pooling and Servicing Agreements (PSA’s), which govern these securitized loans, in any of the decisions coming out of the appellate courts to date.

It is estimated that 75 percent of all outstanding first lien residential mortgages are securitized, and 90 percent of all mortgages originating in the last 5 years are securitized. If so, then the applicable PSA’s and New York trust law (which governs most mortgage-backed securities) control. Accordingly, neither the UCC, affidavits or verifications by the plaintiff, or the mere possession of the original note and mortgage determine whether the plaintiff has the legal right to foreclose. As professor Levitin explains,

Securitization is the legal apotheosis of form over substance, and if securitization is to work, it must adhere to its proper, prescribed form punctiliously. The rules of the game with securitization, as with real property law and secured credit, are, and always have been, that dotting “i’s” and crossing “t’s” matter, in part to ensure the fairness of the system and avoid confusions about conflicting claims to property. Close enough doesn’t do it in securitization; if you don’t do it right, you cannot ensure that securitized assets are bankruptcy remote and, thus, you cannot get the ratings and opinion letters necessary for securitization to work. Thus, it is important not to dismiss securitization problems as merely “technical;” these issues are no more technicalities than the borrower’s signature on a mortgage. Cutting corners may improve securitization’s economic efficiency, but it undermines its legal viability.

Accordingly, if the PSA (the trust document) says that the transfer must be done in a certain way and the transfer did not comply, the transfer is void and the trustee has no right to foreclose, regardless of whether the transfer complies with the UCC or other law. The PSA creates a higher level of conduct to which the transfer must comply, and mere possession of the original note (even if endorsed in blank) simply doesn’t cut it. I feel it is incumbent for the Courts and lawyers to explore the issue of securitization and determine if Professor Levitin (and many others, including myself) are wrong. We need to stop resting on the easy “outs” of notices of acceleration and possession of the original note and mortgage. There is much more to residential mortgage foreclosures than this, and we owe it to the integrity of the judicial system to understand the securitization process and what role, if any, it plays in the foreclosure process.

On a final unrelated note, there has been a request (from both the public and some members of the foreclosure law committee) to hold more foreclosure law public seminars. If anyone would have an interest in participating, please let me know; I can be reached at: [email protected].

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Scholarship CommitteeImmediate Past President, Preethi Sekharan, Chair

The Martin County Bar Association’s2011-2012 Scholarship Essay Contest

Today we live in an era in which many believe that certain values–prized in the past–are less common than they have been at any point in our nation’s history. Our work inspires

our youth---our nation’s future leaders---to embrace these values, to take pride in our country, and to gain a passion to help make America all it can be. One way we do this is through the annual MCBA Scholarship Essay Contest. Over the years, the various past presidents of this Association have developed the MCBA’s Scholarship Essay Contest into one that asks local high school seniors to take some time and ponder various legal issues, including the concept of American values, the significance of Abraham Lincoln’s presidency, the Bill of Rights, to ponder what our freedoms have cost us, and what exactly it means to be an American. In this year’s contest, we will be inviting high school seniors to submit essays based on one of the following three selected themes: (1) Discuss the presumption of innocence in the U.S. given to a person charged with a crime (“Innocent until proven guilty”), give at least two specific examples, and evaluate the advantages and disadvantages of this presumption. (2) Compare and contrast the United States’ three branches of government and their balance of powers with that of another country that does not have this structure. (3) Should a minor student be given his or her rights, including a “Miranda” warning and the right to have a parent present, before being questioned by police on school grounds? The Rules and Guidelines for the MCBA’s Scholarship Contest can be found on the Bar’s website at: www.martincountybar.org. Essays will be judged and scored by the MCBA Scholarship Committee, and scholarships in various amounts will be awarded to those students whose essays best meet the criteria established at the outset of the competition. The funds for our Scholarship Essay Contest are supplied, in large part, by the proceeds from the MCBA’s Sobel Cup Golf Tournament, held each May. This year, the MCBA Executive Board made the decision to contribute additional funds to the Scholarship Essay Contest, thus enabling the Scholarship Committee to award more significant prizes to the contest winners.

All members are invited to participate in the judging of these essays (provided your family members are not contestants!). If any members are interested in participating in the Scholarship Committee, please send an email to [email protected].

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Martin County OrdinancesAll Martin County ordinances may be found on the County website: www.martin.fl.us.

Click on Departments, County Attorney, County Code & Ordinances. See ordinance list on right side of web page (ex: Ordinances 800-849).

Law Office Of Stephen M. LewenSocial Security Disability & Supreme Court Certified Circuit Civil Mediator

2646 SW Mapp Road - Suite 206Palm City, FL 34990

Telephone: 772-288-1300 Fax: 772-288-2135

Representing the injured & disabled for over 31 years.

Jack Sobel Board Certified Civil Trial Lawyer Martindale Hubbell Highest Rating “AV”

Fox, Wackeen, Dungey, Beard, Sobel, Bush & McCluskey, L.L.P 3473 SE Willoughby Blvd. Stuart E-mail: [email protected]

772.287.4444 Referral Fees Paid in Accordance with

Florida Bar Rules

Personal Injury Trial Lawyer

City of Stuart OrdinancesAll City of Stuart ordinances may be found on the City website: www.cityofstuart.us. Click on links on the left side of the page. Then select #12 for Municode and choose Code of Ordinances. The Table of Contents can be located in Part II Code of Ordinances.

Social CommitteeCo-Chairs - Mark Miller and Chad Hastings

Look for details about up-coming programs and events in the September issue of the SideBar. In the meantime, please don’t hesitate to contact Mark at [email protected] or Chad at [email protected]. Chad HastingsMark Miller

Trial Lawyers CommitteePaul McMahon, Chair

The Trial Lawyer Committee will resume its meetings on the second Thursday of each month, starting in September 8, 2011 at the office of Page, Mrachek, Fitzgerald & Rose, PA (1000 S.E. Monterey Commons Boulevard, Suite 306, Stuart, Florida 34996). Look for more details in the September issue of the SideBar. For more information, please feel free to contact me at 772-335-9219 or [email protected].

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Admiralty & Maritime Law CommitteeBarbara A. Kreitz Cook, Chair

On June 17, 2011, Governor Scott signed into law Chap.2011-152 CS/SB 512. The bill revises Chapters 327, Florida Statutes, known as the “Florida Vessel Safety Law,” effective October 1, 2011. The amendments revise penalties for violation of navigational rules, add exemptions from the requirement that certain persons possess a boating identification card while operating a motor vessel of a specified horsepower rating,

prohibit rental of vessels over 10 hp to certain persons unless the person provides photo ID and a valid boater safety ID card, and reenact mandatory education for violators. Following are details of the revisions:

§ 327.33(3): Reckless or careless operation of vessel: Violation of a navigational rule, but not constituting reckless operation, is a noncriminal violation punishable as provided in § 327.73. Violation of a navigational rule which results in a boating accident causing serious bodily injury or death but not constituting reckless operation is a second degree misdemeanor.

§ 327.73(o) Noncriminal infractions relating to violation of navigational rules: Penalties for violation of navigational rules not resulting in an accident or resulting in an accident not causing serious bodily injury or death are, for a first offense, $250; second offense, $750; third or subsequent offense, $1000.

§ 327.731 Mandatory education for violators: Every person convicted of a criminal violation, of a noncriminal infraction involving a reportable boating accident, or of two certain noncriminal infractions occurring within a 12-month period, must successfully complete an approved boating safety course, file proof of successful completion with the Florida Fish and Wildlife Conservation Commission (FWC) within 90 days of completion, and refrain from operating a vessel until the proof is filed.

§ 327.395(6)(f): Boating safety identification cards: Adds an exemption to the requirement for possession of the boating identification card for 90 days after completion of a boater education course, provided the operator has a photo ID and proof of completion of the course.

§ 327.54(2): Liveries; safety regulations; penalty: Knowingly renting a vessel powered by a motor of 10 hp or greater to a person required to have a boating safety ID card (born after 1/1/1988) is prohibited unless the person presents photo ID and a valid boating safety ID card, or meets the exemption of § 395(6)(f).

BEWARE OF UNIQUE MARITIME STATUTES OF LIMITATIONS!

The Daily Business Review reports that a Coral Gables lawyer has been sued by a former client, who claims he waited too long to file her lawsuit against Carnival Cruise Lines. In her June 21 lawsuit filed in Miami-Dade Circuit Court, Tania Pagliery said she hired Antonio S. Gonzalez to sue the cruise line for a slip-and-fall injury. She contends he promised to move the case forward but did not file a lawsuit, causing her case to be time-barred because no action was taken for more than a year after claims were made with the company. Ms. Pagliery alleges she was further aggravated when Mr. Gonzalez avoided responding to phone calls for months. Ms. Pagliery has hired maritime lawyer Jonathan Aronson to sue her former attorney.

This case emphasizes the fact that cruise line passenger tickets generally have a notice requirement and shortened time of one year to file a lawsuit. Blow that deadline, and you blow your case. This case also emphasizes that clients seeking a claim against vessel operators need to seek out an attorney experienced in maritime law or otherwise board certified in admiralty and maritime law.

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Real Estate and Commercial Litigation UpdateManuel Farach, Esq.

Real Property and Business Litigation ReportJune, 2011 Summary

Johnson v. HSBC Bank USA, Nat. Ass’n, --- So.3d ----, 2011 WL 2154408 (Fla. 1st DCA 2011).Appeal of a mortgage foreclosure judgment is premature if a counterclaim remains pending.

Givans v. Ford Motor Credit Co., --- So.3d ----, 2011 WL 2135479 (Fla. 4th DCA 2011).A guarantee which requires a default and notice prior to becoming effective is a conditional (as opposed to an absolute) guarantee. Failure to give notice when notice is required under a conditional guarantee is a failure of condition precedent which negates the guarantee.

Caproc Third Ave., LLC v. Donisi Ins., Inc., --- So.3d ----, 2011 WL 2135563 (Fla. 4th DCA 2011).Contesting a claim of exemption from garnishment under Fla. Stat. § 222.12 requires the party, and not the attorney, to swear out the affidavit contesting the claim of exemption.

Caiazzo v. American Royal Arts Corp., --- So.3d ----, 2011 WL 2135585 (Fla. 4th DCA 2011).Long arm jurisdiction under Florida law is divided into specific jurisdiction under Fla. Stat. § 48.193 (1) and general jurisdiction under Fla. Stat. § 48.193 (2). The due process analysis is different depending on whether specific or general jurisdiction is sought, namely, “minimum contacts” must be examined under specific jurisdiction and general jurisdiction has a more rigorous requirement of “substantial, continuous, and systematic business contacts,” i.e., not de minimus contacts measured either as an absolute figure or as a percentage of the company’s total sales in the forum state. An additional reasonableness requirement applies to both specific and general jurisdiction, i.e., a reviewing court must examine “the burden on the defendant, the interests of the forum State, and the plaintiff’s interest in obtaining relief” and “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies.” These rules are not supplanted by the Internet, and the Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997), analysis of “active” vs. “passive” websites is rejected unless the website contacts meet these specific tests.

Corzo Trucking Corp. v. West, --- So.3d ----, 2011 WL 2135589 (Fla. 4th DCA 2011).A creditor can extend the life of a judgment by bringing an action on the judgment within the limitations period. The 20 year statute of limitations for actions on a judgment is waived if not raised as a defense.

__________________________________________________________________________________

Real Property and Business Litigation ReportJuly, 2011 Summary

Wendt v. La Costa Beach Resort Condominium Ass’n., Inc., --- So.3d ----, 2011 WL 2224761 (Fla. 2011).Fla. Stat. § 607.0850 (indemnification of corporate officers and directors) permits officers and directors to seek indemnification when the corporation itself, and not an outside third party, brings suit against the corporate officers and directors.

Banco Industrial De Venezuela C.A., Miami Agency v. De Saad, --- So.3d ----, 2011 WL 2224820 (Fla. 2011).Fla. Stat. § 607.0850 (indemnification of corporate officers and directors) does not apply to foreign corporations. Even if the statute applied to foreign corporations, indemnification is not proper here because the corporate officer was prosecuted for her actions (money laundering) and not her official position.

Continued On Next Page . . .

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Korte v. US Bank Nat. Ass’n, --- So.3d ----, 2011 WL 2200678 (Fla. 4th DCA 2011).A court may award Fla. Stat. § 57.105 (1) (a) and (3) sanctions in the form of “delay damages” for filing frivolous and unsupported mortgage foreclosure affirmative defenses that delay resolution of the case.

In re Jacks, --- F.3d ----, 2011 WL 2183979 (11th Cir. 2011).A lender’s internal recording of costs and fees associated with a bankruptcy, without any attempt to enforce or collect the fees, is not a violation of the automatic stay under 11 U.S.C. § 362.

Hirchert Family Trust v. Hirchert, --- So.3d ----, 2011 WL 2415787 (Fla. 5th DCA 2011).Breach of fiduciary duty is a type of “constructive fraud” that entitles a claimant to attach claims to homestead property so long as the claims meet the “equitable jurisprudence” exception to the Florida Constitution’s ban on liens attaching to homesteads. Furthermore, a court of equity, so long as it has personal jurisdiction over a party, can compel the party to convey real property in another state.

Spectrum Interiors, Inc. v. Exterior Walls, Inc., --- So.3d ----, 2011 WL 2415792 (Fla. 5th DCA 2011).Notwithstanding the Law of the Case doctrine, an appellate court has the discretion to correct an earlier ruling based on an error in law or other circumstances such as intervening legislative action or the decision of a higher court on the issue.

Johnson, Pope, Bokor, Ruppel & Burns, LLP v. Forier, --- So.3d ----, 2011 WL 2341391 (Fla. 4th DCA 2011).A legal services agreement which requires legal malpractice claims to be arbitrated in lieu of litigation is not void against public policy.

Continued From Previous Page . . .

Any article appearing herein may be reproduced provided credit is given both to the SideBar and the author of the article. Views and conclusions expressed in articles and ads herein are those of the authors or advertisers and not necessarily those of the officers, directors, or staff of the Martin County Bar Association. Further, the Martin County Bar Association and staff do not endorse any product or service advertised. All advertising is subject to approval. We regret any errors or omissions and such, if applicable, will be noted in future issues. All submitted content may be edited for any reason at the discretion of the editor. Professional photographs shown throughout this issue of the SideBar have been provided compliments of Abbey Portrait Studio.

16


Florida Rural Legal Services has FREE CLE trainings available for any attorney interested in accepting a pro bono case, or for volunteering at an “Ask-A-Lawyer” event. For more information please contact Carolyn at

[email protected] or (772) 466-4766, Ext. 7024. Many thanks to our current volunteers…you are appreciated!

ATTORNEY POSTION VACANCYFull-time staff attorney position open with Florida Rural Legal Services.

Send resume to [email protected]. For more information, visit: www.frls.org

Legal Aid UpdateJane L. Cornett, Chair On Friday, June 24, 2011, the Martin County Bar Association, Inc., in conjunction with Florida Rural Legal Services, Inc., held an “Ask-A-Lawyer” event at the Log Cabin in Jensen Beach, Florida. Eight (8) attorneys participated and provided advice and counsel to twenty-one (21) low-income clients. Carolyn Fabrizio of Florida Rural Legal Services, Inc., did all the hard work by conducting intake and prescreening for potential clients, and coordinating and scheduling appointments. There was a good variety of different legal issues covered that day, including estate planning, foreclosure, bankruptcy, consumer law, family law, public housing, landlord/tenant, mobile homes, wage claims, insurance claims and permitting issues. Many thanks to the following attorneys who volunteered their

time to assist the low-income citizens of Martin County: Eric Buetens, Amy Burns, Barbara Cook, Michael Dale, Maryann Diaz, Robert Kilbride and Maxine Noel. A special thanks to Bob Kilbride, who, in addition to volunteering his time on the 24th, also accepted assignment of two (2) cases for further assistance.

Florida Rural Legal Services, Inc., with our association’s help, would like to provide this service on a monthly basis. The plan is to have an attorney available the third Friday of each month from 9:00 a.m. through 11:00 a.m. One volunteer attorney per month will be needed but, of course, more are always welcome. The monthly “Ask-A-Lawyer” program is scheduled to start on August 19, 2011. Remember, any time you assist with legal aid programs, you are protected by malpractice insurance provided by Florida Rural Legal Services, Inc.

As our Supreme Court Justice Peggy Quince stated when she attended our Martin County Bar luncheon, pro bono service is something which we should all make a priority. Please give Carolyn a call at Florida Rural Legal Services, Inc., at (772) 466-4766, Ext. 7024, or email her at [email protected], and volunteer to help with future events.

Williams,Leininger&Cosby,P.A.ispleasedtoannouncethatRichard Gaunt, formerly ofGaunt, Pratt,Radford,Methe&Rockenbach,hasjoinedthefirmasOfCounsel.Hebringstothefirmmorethanthirtyyearsofexpertiseintryingover100jurytrialsinPalmBeachCountyandaroundthestate.HehasbeenaBoardCertifiedCivilTrialLawyersince1985.Hewillcontinuetoserveclientsinthedefenseofpersonalinjury,propertydamage,andinsurancematters.

Mr. Gaunt works primarily in the firm’s North PalmBeach office and can be reached at 561.615.5666 [email protected].

Williams, Leininger & Cosby, P.A. is pleased toannounce thatJohn Cannizzaro, formerly anAssistantStateAttorney for the19th JudicialCircuit,hasjoinedthefirm.Hebringstothefirmfouryearsofexperienceintryingcasesbeforejuriesinthe19thJudicialCircuit.

Hewillfocushispracticeonthedefenseofpersonalinjury, property damage, and insurancematters.Mr.Cannizzaroworks primarily in the firm’sStuartoffice and can be reached at 772.463.8402 [email protected].

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Law Library Committee Eric Buetens, Chair

The Law Library Committee, using funds provided by the Martin County Bar Association, has audiotape and CD sets available at no cost to Martin County Bar members at the Law Library in the Courthouse.

Hours can be reported online, or the library can provide scan forms to report your credit hours. Short sets (such as the ethics-only tapes) may be checked out for one week. Longer sets (8+ credits) may be checked

out for two weeks, although the sooner they come back to the Law Library the better. The tapes provide Martin County Bar members the opportunity to earn CLE credits and stay up-to-date on the state of the law. Stop by the Law Library to take advantage of this Martin County Bar member benefit! The Law Library is open Mon.-Thurs. 9-11:30 a.m. Newly arrived CD seminars:

• Rules, Deadlines and Essential Issues and Developments in Probate Practice - Credit hours: 6 General; 1 Ethics; 4.5 Elder Law Certification; 4.5 Wills, Trust and Estate Certification. Expires 9/17/2012.

• Estate Planning in an Ever Changing Environment - Credit hours: 7.5 General, 3.5 Tax Certification and 5.5 Wills, Trust and Estate Certification. Expires 5/19/2012.

• Real Estate Practice in Hard Times - 5 General credits, 1 Ethics credit - expires 8/19/2011 Topics: 1. Mortgage Foreclosures; 2. Foreclosure or Deed in Lieu; 3. Title Insurance Claims; 4. Practical Tips for Avoiding Legal Malpractice Claims; 5. 2009 Amendments to the Lis Pendens Statute and 6. Respa reform.

Other Tapes/ CDs available:

• FLORIDA DISPUTE RESOLUTION CENTER AUDIOTAPES: Mediation CME tapes: 13th Annual Dispute Resolution Center Conference.

To check on tape availability or rental charges, call the Law Library at 221-1427.

Questions or Comments call Eric Buetens 546-6633.

ARC Mediation accommodates clients throughout Florida, from Miami-Dade through the Treasure Coast and beyond.

561-712-4717 • www.arcmediation.com

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PREPARING OUR PROFESSION & YOUNG AMERICANS FOR THE

21ST CENTURY REQUIRES MENTORING

The Florida Bar has been working on how to deal with improper attorney behavior for years. Lack of mentoring is often cited as one of the causes negatively impacting our field. But the issue of mentoring is one that is important to our clients, the business community and to our society. Mentoring is not only needed in the growing legal community, but as well for the next generation coming into the job marketplace.

The Career Skills Program offered by Big Brothers Big Sisters of Palm Beach and Martin Counties incorporates mentorship with employment skills. Program outcomes are staggering. Students maintain or improve their academic performance, stay out of trouble in school and improve their self confidence and self-esteem. In 2010 93% of students graduating from the program maintained or improved their grades, and 100% showed improvement in the areas of confidence, competence and caring.

In addition, 100% of the students received positive evaluations from their mentors. For 6-8 weeks, students receive one hour per week of group training and mentoring in basic job/employability skills such as: how to fill out an employment application, creating a positive image through “dressing for success,” and successful interviewing techniques. Students also benefit from motivational speakers, who address such topics as the importance of school achievement and the qualities demonstrated by successful employees.

Students use their newly acquired skills to apply for positions with local business partners. Then, students transition to one to one mentoring on the job with the business partner for the remainder of the school year. Each student receives meaningful job experience, training, and a stipend. Researchers found that after 18 months of spending time with their mentors, the students were:

● 46% less likely to begin using illegal drugs ● 27% less likely to begin using alcohol ● 52% less likely to skip school ● 37% less likely to skip a class ● more confident of their performance in schoolwork ● one-third less likely to hit someone● getting along better with their families

Visit www.mentorbig.org to see more information on their mentoring program and their work to provide children facing adversity with strong and enduring, professionally supported relationships that change their lives for the better, forever.

In 2009 and again in 2010, BBBS was named in the Top 100 Small Businesses in South Florida by Business Leader Magazine. Big Brothers Big Sisters of Palm Beach and Martin Counties is a donor driven volunteer based organization that believes every child has the ability to succeed and thrive in life.

Your Full Service Firm of Mediators & Arbitrators

ARC Mediation accommodates clients throughout Florida, fromMiami-Dade through the Treasure Coast and beyond.

561-712-4717 • www.arcmediation.com

Walter Colbath, Jr*

Deborah Baker, Esq. Robert Bannon, Esq. Michelle Berg, Esq. Kolleen Byldw, Esq. Ryan Copple, Esq. Gary A. Costales, Esq.

Steven L. Craig, Esq. Maura Curran, Esq. Edward B. Deutsch, Esq. Lissa Jolvert Dorsery, Esq. Kristopher Duer, Esq. Michael A. Edwards, Esq.

Frederick W. Ford, Esq. John W. Gary III, Esq. Francis Geary,Jr., Esq. Michael Gelfand, Esq. Lawrence Ginsberg, Esq. Louis F. Green, Esq.

Brendan Heneghan, Esq. John Henneberger, Esq. David Horwath, Esq. David B. Israel, Esq. Shane Kelley, Esq. Thomas Kingcade, Esq.

Richard Meehan, Esq. Donna Melise, Esq. Thomas F. Meyer, Esq. Jean Marie Middleton, Esq. Lawrence Newman, Esq.

Judith A. Ripps, Esq. Steven Rubin, Esq. Karl M. Scheueman, Esq. Richard Schwartz, Esq. Thomas Schwartz, Esq.

Cathleen Scott, Esq. Jane Socolo�, Esq. Allen R. Seaman, Esq. Leo Spitale, Esq. Myra Bennett Torres, Esq. MIchael Weeks, Esq.

Jack H. Cook* Edward A. Garrison* Edward Rodgers* Kenneh D. Stern*

Louis Pfe�er, Esq.

Glenn Mednick, Esq.

*Retired Circuit Judge

20


oFFICe adMInIsTraTors/ oFFICe Managers’ MonThly MeeTIng

Meetings are held once a month at the offices of Crary, Buchanan, et al., for lunch and an exchange of ideas.

Please contact Jim Menendez at 287-2600 for more information.

He’s a winner in court. He’s a winner with his family. He’s desperately unhappy.As lawyers, we spend most of our time dealing with other people’s problems. We often ignore our own.

The daily pressures and deadlines of practice can result in difficulties such as anxiety, depression, or substance abuse. Without help understanding how to deal with these obstacles, our families, work, clients, and lives can be drastically affected.

Florida Lawyers Assistance (FLA) provides confidential assessment, referral, and help to attorneys, judges, and law students experiencing difficulty

with psychological, stress, or substance abuse issues. FLA is a non-profit organization created by the Florida Supreme Court that works cooperatively with, but is not an agency of, The Florida Bar.

Remember - you never have to be alone. Contact FLA 800-282-8981 - www.fla-lap.org

Confidential Attorney’s Meetings are held at 5:30pm every Tuesday at 51 East Ocean Boulevard in Stuart.

The Lady Lawyers Group meets on the 2nd Friday of each month (at Noon) at CK Café (formerly Atlanta Bread Company).

Williams,Leininger&Cosby,P.A.ispleasedtoannouncethatMaureen Martinez (formerlyMaureenMartinez-Schwab)has rejoined theFirm.Shewill continue to serve clientsin the defenseof personal injury, property damage, andinsurancematters.

Ms.MartinezworksprimarilyintheFirm’sNorthPalmBeachofficeandcanbereachedat561.615.5666or

[email protected].

For Rent - 3 Office Suites in Downtown Stuart

(Next to Lyric Theater)

No Lease Required - Use of Conference Rooms & Photo Copiers Included in Rent.

Rent Begins at $700.00 Per MonthContact Larry Stewart at (772) 283-8191

or [email protected]

21


Bankruptcy CommitteeJon L. Martin, Chair

New Ruling in Bankruptcy Court in the Southern District of Florida Stirs National Comment

In re Elibo, 447 B.R. 359 (Bankr. S.D. Fla., March 15, 2011) (Kimball): In this case Judge Kimball ruled a Chapter 13 plan may both modify a secured creditor’s claim by “cramming down” the value of the collateral and by extending the remaining payments beyond the plan term pursuant to § 1322 (b)(5), which previously restricted payment to not more than 5 years.

Previously, this was not possible. Judge Kimball decided, “Section 1322(b)(5) permits a debtor to pay a long term debt over a period longer than the five-year plan duration requirement of §1322(d), but in invoking (b)(5), a debtor must cure any default and “maintain payments.” The question was whether Mr. Elibo could use both §1322(b)(2) to modify the rights of the creditor by bifurcating its claim and extend payments on the claim beyond the five-year term of the plan.

Judge Kimball’s ruling disagreed with In re Enewally, 368 F.3d. 1165 (9th Cir. 2004), the Ninth Circuit holding that Sections 1322 (b)(2) and 1322(b)(5) are not mutually exclusive. To invoke section (b)(5), however, Mr. Elibo may not change the repayment terms of the loan. The change proposed by Mr. Elibo, by lowering the monthly payments from $1,346.35 monthly with interest at 7.25%, to $487.71 monthly, with interest at 5.25%, was hardly “maintaining” payments.

Judge Kimball ruled that a debtor may take advantage of §1322(b)(5) if the plan maintained the contract interest rate and maintained the contract payments during the life of the plan and thereafter as is necessary to satisfy the secured claim. Thus, “a debtor may employ subsection (b)(2) and (b)(5) together to modify the rights of a secured creditor, and cure and maintain payments beyond the life of a plan until the allowed secured claim is paid in full. However, a debtor may not modify the interest rate on the loan and extend payments beyond the life of the plan under §1322(b)(5).” (at 364).

In essence, this means that an investment property can now be stripped down to current value as long as the pay-ment and interest rate limitations remain the same, which turns a $200k 30-year mortgage into a $80k or $90k 8-year mortgage instead of being limited by the 5-year payoff, as long as any prepetition average is paid as well through the plan. These provisions only apply to property that is not the debtor’s principal residence.

SDFL Bankruptcy Court Experiences Largest Percentage Filing in Country

According to recently published statistics from the Administrative Office of the U.S. Courts, bankruptcy filings for the 12-month period ending March 31, 2011, for the Southern District of Florida rose 23.5% compared to bankruptcy filings for the 12-month period ending March 31, 2010, representing the largest percentage filing increase in the country.

Need more information? Join the Bankruptcy Committee!For information regarding this article or any of the Bankruptcy Meetings,

please contact me at: [email protected]

Meeting Date LocationABI- Bankruptcy 2011: Views from the Bench September 16, 2011 Washington, DCABI- 37th Annual Lawrence P. King & Charles Seligson Workshop of Bankruptcy & Business

September 21-22, 2011 NYU School of Law- New York City, NY

ABI- National Conference of Bankruptcy Judges/ABI Educational Program

October 14, 2011 Tampa Convention Center- Tampa, FL

TMA- 2011 TMA Annual Convention October 25-27, 2011 Hilton San Diego Bayfront- Sand Diego, CANACBA - 2011 Members-only Workshop October 28-29, 2011 Broadmoor - Colorado Springs, CO

22


Stuart Tel. Direct: 772-283-5438Mediation Inc. Direct: 561-833-6800

Fax: 561-835-6800

Email: [email protected]

MARTIN G. HOLLERANCircuit Civil Mediator

ofMEDIATION INC.

RANDOM DO’S AND DON’TS FOR SUCCESSFUL MEDIATIONMartin Holleran, Esquire

1.Do develop in your preparation a progression for success by easing away from a reliance on past positions to help solve your present dilemma by crafting an agreement to define future behavior and generate mutual future benefits. Avoid detours into irresolvable past issues and check unproductive discussion. In the mediation itself, be prepared to help your mediator lead your adversaries away from the same pitfalls.

2. Do, after you have determined and prepared your strategy, focus your flexibility on enhancement of your position; not change of it. When your house is half built, it’s too late to hire a different architect, but it’s not too late to make the original design better. Change, particularly “on the fly,” will very rarely allow you to make better choices. If you prepared properly, do you really think that a “gut feeling,” made in the heat of the fray, will overcome your logic, best thinking, calm study, and confidence gained through the process of preparation?

3. Do always be aware of the change in the dynamics of the situation as the mediation progresses. Due to our own absorption in pressing our own agenda forward, we routinely miss opportunities to take advantage of lapses or blunders by our adversary because we simply fail to notice them. Simply by reacting and grabbing hold of these opportunities before they slip through your fingers gives you what my father, an old-time crafty trial lawyer, would call a “fair advantage.”

4. Do monitor your WATNA as well as your BATNA. Neither are static positions. They ebb and flow as the mediation progresses and new developments, both positive and negative, arise. Achieving any reasonable solution, therefore, requires brutally honest and regular monitoring of your progress, or lack thereof, continuously throughout the mediation. Unless you know how well you are doing, or aren’t doing, you can’t adjust your strategies accordingly. If you have the money and manpower, bring a “second chair” to serve as a sounding board.

5. Don’t tempt fate. As they say on Wall Street, “bulls make money and bears make money, but pigs get slaughtered.” Therefore, be a realistic optimist. We all know this, but we particularly as trial attorneys have selective amnesia, and choose to forget that THERE IS NO SUCH THING AS A SLAM DUNK in the courtroom. Successful lawyers know not to make achieving a mutually reasonable solution more difficult than it need be. See Para. 4 above. Many clients (and lawyers) are overly confident in their ability to resist the temptation, and unjustifiably go for a “big score.” As a result, they find themselves in untenable positions from which they cannot retreat gracefully, if at all. Remember, the courtroom is not a crap table, and you don’t “get on a roll.”

6. Don’t be a practitioner of Reactive Devaluation. Resist the “knee jerk” temptation to give less consideration to a proposal that is given by the other side rather than the mediator. Similarly, don’t discount or give less weight to an opinion of law or an interpretation of evidence offered by the other side.

7. Do deal with your mediator openly, honestly, and persuasively, so that the mediator can feel confident that you have a valid and well thought line of reasoning when he presents your case in your adversary’s caucus.

8. Finally, for now, in an effort not to be a carrier of PADD (Professional Attention Disorder Disease), I have been fairly consistent in accomplishing my goal to limit these articles to one page , and so I leave you with the final words of the old-time Saturday matinee serials, “… to be continued…”

23


Martin County Chapter of the Florida Association for Women Lawyers (FAWL)

News from Martin County FAWL

The Board of Martin County FAWL (Florida Association for Women Lawyers) has some great events planned for 2011-2012, and we hope you can all join us. Please mark your calendars:

October 8, 2011: Family Fun Day and Fundraiser for Safe Space--event location TBDNovember 4, 2011: LuncheonDecember 15, 2011: Holiday drop-off for Safe SpaceFebruary 17, 2012: CLE event

Congratulations to the following FAWL members for their recent accomplishments:

• Leslie M. Kroeger was recognized as a Leader in the Law by the Florida Association for Women Lawyers. In addition, Ms. Kroeger was appointed to the Florida Bar Professional Ethics Committee for the term July 1, 2011, to June 30, 2014, as well as to the Executive Board of the Florida Justice Association and the Women’s Caucus division of the FJA, for which she will serve as Chair. The FJA recently recognized Ms. Kroeger with the Rough Riders award for legislative service and The Silver EAGLE award for exceptional leadership in fund-raising.

• Jennifer Waters was recently named a shareholder in the firm of Fox, Wackeen, Dungey, Beard, Sobel, Bush and McCluskey, LLP.

• The Palm Beach County FAWL Mentoring Committee, under the leadership of Martin County FAWL member Peggy Wood and Palm Beach County FAWL member Adrienne Rabinowitz, was awarded Outstanding Program Award at the FAWL Awards Banquet in July.

• Rose D. Schneider, Esq., is pleased to announce the opening of her law office, Rose D. Schneider, P.A., at 4285 SW Martin Highway, Palm City, FL 34990; (772) 621-2484; E-mail: [email protected]; Website: www.RosesLaw.com. Mrs. Schneider has been a member of the Florida Bar since 1988. She is a Member of the Florida Bar’s Real Property, Probate and Trust Section. Mrs. Schneider has practiced in the areas of Trusts and Estates. Additionally, Mrs. Schneider served as an Assistant Ethics Counsel for The Florida Bar. Attorney Schneider practices in the areas of Wills, Trusts, Probate & Attorney Ethics.

We encourage you to renew your membership now or fill out a new member application online at www.FAWL.org. We’ll be making great efforts to connect our members to one another, as well as other members of the community, contribute to worthy community activities, and further personal and professional growth.

Who can join FAWL? Attorneys in good standing with the Florida Bar; members of the judiciary; judicial assistants, paralegals, law students, and any other member of the community devoted to promoting gender equality in the legal profession, the judiciary, and the community-at-large.

Why join FAWL? It’s a great way to network and market yourself and your skills. It’s a great opportunity to help the local community, as our events this year will be focused around helping those who find themselves at Safe Space, the Martin County shelter for women and children overcoming domestic violence. You’ll also benefit from free CLEs, member discounts with exclusive retailers, and a voice in the legislative sessions each year.

If you or your firm or other organization would like to be involved as a sponsor of any of the above listed events, please contact any of the following Officers or Board Members:

Nina Ferraro, PresidentMargaret Wood, President-ElectHeather Bridwell-Wallace, Secretary/TreasurerLeslie Kroeger, Immediate Past PresidentBoard Members: Jennifer Waters, Donna E. DeMarchi, Linda Weiksnar, Paige Hardy, Dana McPherson, Preethi Sekharan, Rose D. Schneider

Nina Ferraro

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Criminal Law CommitteeJosh Deckard and Richard Kibbey, Co-Chairs

I f you have any quest ions about any cr imina l mat ter that you would like to discuss with us, please feel free to contact Richard at [email protected] or Josh at [email protected]

DeckardRichard Kibbey

Welcome back!! We hope everyone had a great summer and is ready to get involved in YLD! Our monthly happy hours will be starting up again soon, and we are already in the planning process for the Canoe Trip and Law Day 2012. We are also working to

team up with other local organizations to work on some service projects to serve Martin County.

I look forward to everyone’s participation in this year’s upcoming events, and if you know any recent grads in the area, please encourage them to join us at a happy hour!! Keep an eye out for emails with regard to specific dates and locations for the happy hours and other upcoming events.

Young Lawyers DivisionPaige Hardy, Chair

W. JAY HUNSTON, JR.Mediator/Arbitrator

• J.D. Stetson Univ. College of Law (1976)• Florida Bar Board Certified Civil Trial Lawyer

(1983-2003)• Florida Bar Board Certified, Emeritus in

Civil Trial Law (2003-Present)• Florida Certified:

Circuit Civil Mediator (1991-Present)Family Mediator (1998-Present)

• NASD/FINRA Approved Mediator• Qualified Florida Arbitrator• Admitted to Practice in Florida and Montana• Hourly and Per Diem Rates Available upon Request

Since 1/1/01, limiting his practice to all forms of effective dispute resolution, including pre-suit andCourt-ordered mediation, arbitration, conciliation, special master proceedings, and private judging.

W. Jay Hunston, Jr., P.A.P.O. Box 508, Stuart, FL 34995

(772) 223-5503; Fax: (772) 223-4092(800) 771-7780; Fax: (866) 748-6786

Email: [email protected]: http://www.hunstonadr.com

W. Jay Hunston Rev 9/28/08 1:20 PM Page 1

26


800-GOLD-LAWMain O� ce: 2090 Palm Beach Lakes Blvd. • Suite 402 • West Palm Beach

Se HablaEspañol

Call 24 Hours a Day 7 Days a Week

Which Quarter is the One You’re Entitled to?

Please call Mr. Goldenfarb to set up a lunch to establish a rewarding referral relationship.

At the Law O� ces of Craig Goldenfarb, we treat referral attorneys like Gold.

Do you know how much the Personal Injury case you referred really settled for? You should!

To order a free copy of Mr. Goldenfarb’s book about Florida car accidents entitled, “What Insurance Companies Don’t Want You to Know,” go to our website at 800GOLDLAW.com.

case you referred really settled for? You should!case you referred really settled for? You should!

(the quarter represents your 25% referral fee, of course)

OR

At the Law O� ces of Craig Goldenfarb, we want you to ask yourself these questions about the current personal injury lawyer you send cases to:

❑ Do I get to sign the client’s settlement / closing statement, showing me exactly how much the case settled for?

❑ Will the lawyer or his sta� meet the client at my o� ce or the client’s home?❑ Do I sign the client contract, as required by the Florida Bar Rules?❑ Does the lawyer keep me informed about the status of the case I referred?❑ Do I receive a copy of the lawyer’s demand letter to the insurance company?❑ Am I continuously informed of the status of negotiations?❑ Do I receive my referral fee quickly a� er the case is settled?

✓

✓✓

✓✓✓

✓

27


LABOR AND EMPLOYMENT LAW COMMITTEERobert Kilbride, Chair

The 2011 Florida Legislature was very busy in the last session and passed some significant business friendly legislation.

Passed this past session was a comprehensive bill amending the state’s unemployment compensation laws.

The new law is considered more employer friendly and reduces the level of proof for employers in unemployment compensation appeals. The following is a summary of the most important components of CS/CS/HB 7005, 2011:

1. Clarifies that “severance payments” disqualify an employee for benefits for a period of time based on a stated formula.

2. Requires claimants to complete an initial skills review to qualify for unemployment benefits.

3. Expands the definition of misconduct which may disqualify a worker from unemployment benefits. Misconduct now includes misconduct that occurs at and away from work.

4. Disqualifying misconduct now includes disregard for the employer’s interests defined as merely “conscious disregard,” rather than a “willful and wanton disregard.” This new standard is substantially lower.

5. Allows chronic absenteeism and unexcused absences to qualify as “misconduct,” in some circumstances.

6. Defines misconduct to include conduct that would cause a licensed or certified employee to be sanctioned or have his or her license or certification suspended.

7. Requires a claimant to be “actively seeking work in order to be considered available for work” and defines how that standard is met.

8. Adjusts the voluntary quit language and permits claimants who voluntarily quit work to be eligible if they did so for “good cause,” which is defined as a cause that “would compel a reasonable employee to cease his or her work.”

9. Disqualifies claimants terminated for criminal activity in connection with work when the claimant was convicted

or pled guilty or no contest.

10. Establishes a tiered system for duration of benefits that is tied to the state’s unemployment rate, with a maximum of 23 weeks and a minimum of 12 weeks.

11. Allows admission of certain hearsay evidence at telephonic appeal hearings under relaxed rules. 12. The previous law expressly stated that the law would be liberally interpreted in favor of claimants. The new

law no longer requires liberal construction in favor of employees. It will be interesting to see how these new laws shape the landscape of unemployment compensation and appeals.For more information, please don’t hesitate to contact me at: [email protected].

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PROBATE GUARDIANSHIP TRAININGPlease be advised that court administration of the 19th circuit has arranged for Indian River State College to provide training for guardianship in probate court. The specific information is on the circuit’s website at www.circuit19.org. Contact [email protected] for more information.

4-Hour & 8-Hour Guardianship Training These are required courses for appointed non-professional guardians and those who seek to serve as a guardian.

Each person appointed by the court to be a guardian must complete the required hours of instruction and education within four months of appointment. This four hour State mandated course will cover the following topics to fulfill the training requirements for Guardianship Education required by the State of Florida F.S. 744.3135(4) and has been approved by the Circuit Court of the Nineteenth Judicial Circuit, Administrative Order 2011-0.

DATES: August 13, 2011 TIME: 9:00am - 1:00pmDAYS: Saturday LOCATION: IRSC Main Campus, Ft Pierce, FLCOST: $59 INSTRUCTOR: Judy K Mace DATES: August 13, 2011 TIME: 9:00am - 6:00pmDAYS: Saturday LOCATION: IRSC Main Campus, Ft Pierce, FLCOST: $99 INSTRUCTOR: Judy K Mace About Your InstructorJudy K. Mace is a certified and registered guardian with the State of Florida. Judy possesses a degree in Business Administration from Indiana State University. She has served as a trust administrator in banking and is currently working as a full-time guardian.

SIGN UP TODAY! Limited Seating! For More Information, Call Toll FREE 1-888-283-1177

I am looking forward to another season as Chair of the Probate, Trust, Elder Law & Guardianship Committee. We will not have any meetings over the summer but will resume meetings on September 14th at noon at the offices of Fox, Wackeen, Dungey (3473 SE

Willoughby Blvd.). If you know of anyone who would like to sponsor a lunch meeting or speak to our committee on topics related to our practices, please let me know. If you are interested in joining this committee, please contact me at [email protected].

Probate, Trust Law & Guardianship CommitteeRay Robison, Chair

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ONLY ONEHow many lawyers can say that?

WEST PALM BEACH | PORT ST. LUCIE | NATIONWIDE | WWW.ROSENTHALLEVY.COM | TOLL FREE: 1-866-640-7117

Attorney Joy E. Greyer is the only Board Certified Social Security Disability Advocate in Palm Beach County and the Treasure Coast. Joy is one of only six social security disability advocates in Florida certified by the National Board of Legal Specialty Certification.

When choosing an attorney to represent your clients in Social Security Disability, shouldn’t you choose the only one?Referral fees paid in accordance with all rules governing the Florida Bar.

Family Law CommitteeLinda Weiksnar, Chair

For questions regarding this committee, please contact Linda Weiksnar at [email protected].

Justice TeachingThe Honorable William L. Roby, Chair

A live Justice Teaching session has been scheduled for Tuesday, September 6, 2011, at 9:00 a.m. in Courtroom 7 of the Indian River County Courthouse, 2000 16th Avenue, Vero Beach, Florida, with Florida Supreme Court Justice Fred Lewis. Three hours of general CLE credit will be available for completing the training. To register online for the session, please log into your JT account at http://www.justiceteaching.org/JTProgram/Pages/Welcome.aspx, and then click on the link titled “Register for Training.” If you are unable

to log in, please contact Michelle Ballard at [email protected]. If you know of any other attorneys who are interested in attending the training, please forward this information.

Paralegal Committee and Small & Solo Practice Committee

For information about planned programming for either of these committees, contact Jacquelyn Miller at [email protected] or Jason Berger at [email protected]

Small & Solo Practice CommitteeJason Berger, Chair

Paralegal CommitteeJacquelynne O.

Miller CP, FRP, Chair

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Appellate CommitteeShelly Stirrat, Chair

The first Appellate Committee meeting of the 2011-12 bar year will be held in September. Retired Judge Gary Farmer will be our speaker. Look for more details in the September issue of the SideBar. Please contact me at [email protected] with any questions or if you are interested in more information about this committee.

News From the FrieNdly Neighborhood bar

• Leslie M. Kroeger, a shareholder in the consumer justice law firm of Leopold~Kuvin, P.A., was elected to the Executive Committee of the Florida Justice Association. The election was held on June 18, 2011, in conjunction with the FJA Annual Convention at The Breakers in Palm Beach. Additionally, she has been selected to join the second class of Leaders in the Law by the Florida Association for Women Lawyers (FAWL).

• Attorney Joseph S. Karp has been named to the 2011 Florida “Legal Elite” by Florida Trend magazine. Mr. Karp is one of only 11 elder law attorneys statewide to receive this honor, which is based on stellar peer reviews. Mr. Karp is Florida Bar certified and nationally certified in Elder Law, and maintains offices in Port St. Lucie and Palm Beach Gardens. He focuses his practice on elder law, estate planning, and estate administration,

• Crary-Buchanan presented the newest science leader on the Treasure Coast--Vaccine and Gene Therapy Institute Florida (VGTI-FL)--to business and community leaders in Martin County on May 18, 2011. The law firm hosted an evening reception for the research center at the Mansion at Tuckahoe in Jensen Beach. Law firm senior members Mike and Larry Crary introduced renowned scientists John Schatzle, Ph.D., director of scientific affairs, and Rafick-Pierre Sekaly, Ph.D., co-director and chief scientific officer. VGTI-FL conducts research that can lead to the development of vaccine therapies to promote human health, including ways to treat and prevent AIDS, cancer, tuberculosis, and the diseases associated with emerging viral infections.

• Business and Class Action Litigator Greg Weiss of Leopold~Kuvin, P.A., is being recognized as a “Rising Star” in the 2011 selection of Super Lawyers for the third time. This rating is achieved through a sophisticated and complex selection process that includes peer nominations, evaluations, and third party research. The criteria annually identifies outstanding attorneys who have attained the highest degree of peer recognition and professional achievement.

• Jack Sobel of Fox, Wackeen, Dungey et. al. law firm has been named as a “Florida Super Lawyer” for the sixth year straight. The publishers of “Florida Super Lawyers” strictly adhere to a rigorous, multi-step selection process, which incorporates peer recognition and professional achievement.

Please send us your news of new hires, promotions, awards, engagements, marriages, child births, new addresses and the like for future issues of the SideBar.

Cheers

32


Shaun Plymale Jennifer A. WatersPresident THE MARTIN COUNTY BAR ASSOCIATION Secretary

Greg Weiss Preethi SekharanVice President P.O. Box 2197 Immediate Past President

Stuart, FL 34995George W. Bush, Jr. Voice Mail Line: 772-220-8018 Michelle D. KatzmanTreasurer Executive Director

400 REASONS TO JOIN THE MARTIN COUNTY BAR ASSOCIATION!

Dear MCBA Members and Martin County Attorneys:

We are embarking on a brand new year for the Martin County Bar and it is time to fill out your membershipform, attach your check and join the 400 other local attorneys for the 2011-2012 bar year. The cost of the CLE credits you get for attending the luncheons alone covers the cost of the membership, but the opportunity to network with lawyers and judges is priceless. The monthly luncheons are free with your membership and we are excited to build on last year's successful programs.

The 2011-2012 luncheon speakers were nothing short of fantastic. We hosted two Florida Supreme Court Justices, two Fourth DCA Judges and the President of the Florida Bar. Joe Negron is slated to speak in August to bring us up to speed on what challenges the Judiciary will be facing in this year's legislature. The new President of the Florida Bar, Scott Hawkins, will be speaking as well.

Our luncheons are just the beginning. The MCBA monthly newsletter, The SideBar, continues to provide valuable information and the opportunity to publish your articles as well as advertise your services. The new updated website (www.martincountybar.org), the fall Judicial Reception, the Annual Golf Tournament, the spectacular Annual Installation Banquet, numerous committees, both substantive and social, offer more opportunities to network and even get additional CLE credits.

All of our members will again be provided with a directory of all of the attorneys in Martin County, including listings by practice areas and pictures of all MCBA members, as well as numbers and addresses for all of the Judges, Courthouses, and other agencies you and your staff contact on a frequent basis.

Please join myself and the other 400 local attorneys to take advantage of all of the benefits the MCBA offers. Itis going to be another great year and I know you don't want to be left out!

Sincerely,

Shaun T. Plymale Shaun T. Plymale2011-12 MCBA President

Shaun Plymale Jennifer A. WatersPresident THE MARTIN COUNTY BAR ASSOCIATION Secretary

Greg Weiss Preethi Sekharan

Vice President P.O. Box 2197 Immediate Past President Stuart, FL 34995

George W. Bush, Jr. Voice Mail Line: 772-220-8018 Michelle D. KatzmanTreasurer Executive Director

June 27, 2011

400 REASONS TO JOIN THE MARTIN COUNTY BAR ASSOCIATION!

Dear MCBA Members and Martin County Attorneys:

We are embarking on a brand new year for the Martin County Bar and it is time to fill out your membershipform, attach your check and join the 400 other local attorneys for the 2011-2012 bar year. The cost of the CLE credits you get for attending the luncheons alone covers the cost of the membership, but the opportunity to network with lawyers and judges is priceless. The monthly luncheons are free with your membership and we are excited to build on last year's successful programs.

The luncheon speakers have been nothing short of fantastic. We hosted two Supreme Court Justices, two Fourth DCA Judges and the President of the Florida Bar. Joe Negron is slated to speak in August to bring us up to speed on what challenges the Judiciary will be facing in this year's legislature. The new President of the Florida Bar, Scott Hawkins, will be speaking to us as well.

Our luncheons are just the beginning. The MCBA monthly newsletter, The SideBar, continues to provide valuable information and the opportunity to publish your articles as well as advertise your services. The new updated website (www.martincountybar.org), the fall Judicial Reception, the Annual Golf Tournament, the spectacular Annual Installation Banquet, numerous committees, both substantive and social, offer more opportunities to network and even get additional CLE credits. All of our members will again be provided with a directory of all of the attorneys in Martin County, including listings by practice areas and pictures of all MCBA members, as well as numbers and addresses for all of the Judges, Courthouses, and other agencies you and your staff contact on a frequent basis.

Please join myself and the other 400 local attorneys to take advantage of all of the benefits the MCBA offers. Itis going to be another great year and I know you don't want to be left out!

Sincerely,

Shaun T. Plymale2011-12 MCBA President

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*THE MARTIN COUNTY BAR ASSOCIATION

2011 – 2012 MEMBERSHIP REGISTRATION AND DUES NOTICE**

First Name : _______________ Middle Name: ____________ Last Name: _______________ Suffix: ___

Firm: _______________________________________________________________________

Address: ___________________________________________________ Suite #: __________City: ___________________________________ State: _______ Zip Code: ________

Phone #: ( ) ______ - ______ ext: _____ Fax #: ( ) ______ - ________

E-Mail: ____________________ @ ____________ . ___ Firm’s Website: www. ______________________ . ____

Do you currently practice law and/or reside in Martin County, Florida? □ Yes □ No

Are you currently a member of the Florida Bar? □ Yes □ No

Are you Board Certified by the Florida Bar? □ Yes List Certification(s): _______________ □ No

How would you prefer to receive the monthly SIDEBAR Newsletter? □ Email Only □ Mail Only □ Both

Are you fluent in any foreign languages? □ Yes List Language(s) and proficiency (speaking, reading and writing): _________________ □ No

MCBA Bar Dues for July 1, 2011 – June 30, 2012: $225.00* Payable Upon Receipt

Please make checks payable to: THE MARTIN COUNTY BAR ASSOCIATIONPlease mail your checks and completed form to: The Martin County Bar Association C/o Michelle Katzman (Executive Director)

4995 SW Lake Grove Circle Palm City, FL 34990

*If you are a full-time Government attorney you may be entitled to a reduction in dues – call (772) 220-8018.JUDGES ARE EXEMPT FROM MEMBERSHIP DUES BUT ARE ASKED TO COMPLETE THE REGISTRATION FORM.

Questions: Call Michelle at 772-220-8018 Please Complete Other SidePage 1 of 2

Please check all committees for which you would like to be a member:Practice Related: Social: Bar Related:

□ Admiralty & Maritime Law □ Immigration □ Constitution Week □ Legal Directory □ Appellate Law □ Real Property, Probate

Trust & Guardianship Law□ Golf □ FASH

□ Bankruptcy Law □ Judicial Relations □ Library □ Criminal Law □ Small& Solo Practice □ Social □ Justice Teaching

□ Employment/Labor Law □ Trial Lawyer □ Tennis □ Professionalism□□

Family Law & Dependency

Foreclosure

□ Young Lawyers □□

Scholarship

SideBar Newsletter

34


Don’t Miss Your Chance To Be Listed By Practice Area On Our Website

Only current Martin County Bar Association Members will have their contact information and photo included on our website along with Practice Area Specialties. For this reason alone, Membership in the MCBA is by far the best Marketing dollars you could spend this year!

1. Your Name EXACTLY as you want it to appear in the on-line listing (PLEASE PRINT___________________ __________________ _____________________, ___________

):

(First) (Middle) (Last) (Suffix, if any)

2A. Practitioners (not Mediators): Please circle all areas below in which you practice. The Practice Area categories will appear as is on the MCBA website. MEDIATORS: Please only circle those areas listed below in which you ALSO actively practice. Additionally, please see Mediators’ section 2B below.

Administrative Law Criminal Defense: Traffic / DUI / DWI

Federal Disability Act / Social Security

Personal Injury Defense: General

Adoption Law Criminal Defense Franchise/Dealership Law / Gaming Law

Personal Injury Defense: Medical Malpractice

Accidents / Personal Injury Criminal Prosecution Government / Cities / Municipalities (Contracts/Relations)

Personal Injury Defense: Products

Admiralty & Maritime Law Consumer Protection Law Health Care Law Personal Injury Plaintiff: Medical Malpractice

Antitrust Litigation Contract Law Homeowners/Condominium Association Law

Personal Injury Plaintiff: Products

Appellate Law Business (Transactional) Immigration Law Professional Liability: Defense

Aviation Disability Law Insurance / Bad Faith Litigation Professional Liability: Plaintiff

Banking Divorce Law Intellectual Property Prosecution: Copyrights & Trademarks

Real Estate (Transactions)

Bankruptcy: Creditors Education Law Intellectual Property Prosecution: Registered Patent Attorneys

Real Estate (Litigation)

Bankruptcy: Debtors Elder Law / Guardianship Intellectual Property & Trade Secrets Litigation

Securities/Brokers’ Litigation

Business / Corporate: Transactions

Eminent Domain Law International Law Tax

Business / Corporate: Litigation Employment & Labor Law Landlord / Tenant Traffic Law

Civil Litigation: General Entertainment & Sports Law

Land Use / Zoning / City Planning Wills, Trusts and Estates (Probate)

Civil Rights / First Amendment Environmental Law: Transactions

Native American Law Wills, Trusts and Estates (Litigation)

Class Actions / Mass Torts Environmental Law: Litigation

Non-Profit / Charitable Workers’ Compensation

Complex Commercial Litigation Estate Planning [see Wills, Trusts and Estates(Probate)]

Personal Injury Plaintiff: General

Construction Litigation Family Law Personal Injury Defense: General

2B. □ I am a Florida Supreme Court Certified Mediator

3. If you have a professional head-shot photo (new or replacement), please send it in .JPG format to: [email protected]. Website edits are done on the first of each month.

Page 2 of 2

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sTuarT law oFFICe sharIng

oFFICe sharIng sPaCe avaIlaBle aCross FroM The CourThouse In sTuarT

InCludes PrIvaTe oFFICe, shared reCePTIon area, ConFerenCe rooMs

and CoPIer. Free InTerneT. renT MonTh-To-MonTh.

exCellenT reFerral oPPorTunITIes FroM CurrenT aTTorneys.

ConTaCT: ChuCk geary (772) 288-4357

[email protected]

MALPRACTICEAccepting referrals of plaintiff’s legal malpractice

cases throughout Florida and Texas. Referral fees paid consistent with governing bar rules.

LAW OFFICES OF

ERIC G. OLSEN1333 NE JENsEN BEach BoulEvard

JENsEN BEach, Florida 34957TEl: (772) 225-3393Fax: (772) 225-3394

Toll Free: 1-877-E G [email protected]

www.egolaw.com

MARTIN COUNTY BAR ASSOCIATIONPO BOx 2197 STUART, FL 34995-2197

Please Join Us For MCBA’s August 19th Luncheon Meeting

When: Friday, August 19, 2011, at 11:45 a.m.Where: Monarch Country Club 1801 SW Monarch Club Drive in Palm City Menu*: Monarch Salad (Fresh mixed greens topped with carrots, cucumbers, and red onion served with balsamic vinaigrette dressing), Chicken Marsala and Chocolate Decadence Cake * If you require a specialty meal, please notify us when you RSVP.Speaker: Florida State Senator, Joe Negron CLE’s: 1.0 General CLE Credit

RSVP: No later than Tuesday, August 16th 772-220-8018 or via [email protected]

There is no charge for MCBA members. Guests are welcome to attend.A $25 Guest fee may be paid at the luncheon. RSVP required for members and guests.

To keep costs down, we are only having meals prepared for the # of MCBA members and guests who RSVP.

We would love to see you, but need to know you are coming! Please RSVP.

Documents

n C B ssoCIaTIon I T I M F The P essage roM resIdenT done by letter, ... Our guest speaker, Senator Joe Negron, will address current issues now in Congress and how they may impact