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N O V 2 0 1 1 | H C B A L A W Y E R 1
(ISSN 1553-4456) THE HILLSBOROUGH COUNTY BAR ASSOCIATION Lawyer is published in September, November, December, February, March, May and June by the Hillsborough County Bar Association. Editorial, advertising, subscription, and circulation offices: 1610 N. Tampa Street, Tampa, FL 33602. Changes of address must reach the Lawyer office six weeks in advance of the next issue date. Give both old and new address. POSTMASTER: Send change of address notices to Hillsborough County Bar Association, 1610 N. Tampa Street, Tampa, FL 33602. One copy of each Lawyer is sent free to members of the Hillsborough County Bar Association. Additional subscriptions to members or firm libraries are $50. Annual subscriptions to others, $100. Single copy price, $15.00.(All plus tax.) Write to HCBA, 1610 N. Tampa Street, Tampa, FL 33602. The Lawyer is published as part of the HCBA’s commitment to provide membership with information relating to issues and concerns of the legal community. Opinions and positions expressedin the articles are those of the authors and may not necessarily reflect those of the HCBA. Submissions of feature articles, reviews, and opinion pieces on topics of general interest to the readership of the Lawyer are encouraged and will be considered for publication.
OFFICERS & DIRECTORS
President Pedro F. Bajo, Jr.President-Elect Robert J. Nader
Immediate Past President Amy S. FarriorSecretary Alysa J. Ward Treasurer Robert J. Scanlan
Ex-Officio Russell M. BlainJ. Carter Andersen
Colette K. BlackDeborah C. Blews
Benjamin H. Hill, IVS. Gordon Hill
Susan E. Johnson-VelezKevin M. McLaughlin
Kristin A. NorseJohn A. SchifinoLaura E. Ward
ADVERTISINGPR/Communications CoordinatorDawn S. McConnell, [email protected], (813) 221-7779
EditorGrace H. YangExecutive DirectorJohn F. KynesLawyer
HILLSBOROUGH COUNTY BAR ASSOCIATION
Chester H. Ferguson Law Center1610 N. Tampa Street, Tampa, FL 33602Telephone (813) 221-7777, FAX (813) 221-7778
about us
novdivisions
IN THIS ISSUE
4
events 52 HCBA LEADERSHIP
INSTITUTE CLASS OF 2011-2012
28 LEADERS: WARREN HOPE DAWSONby Raymond T. (Tom) Elligett, Jr.
35 15TH ANNUAL BENCH BAR CONFERENCEby The Hon. Emily A. Peacock and The Hon. Caroline J. Tesche
283 EVENTS AROUND THE HCBA
Editor’s Message by Grace H. Yang
4 RULES TO LIVE BYHCBA President’s Messageby Pedro F. Bajo, Jr.
6 THE YLD’S RENEWED FOCUS ON PRO BONOYLD President’s Message by Laura E. Ward
8 READY, SET, CHANGEExecutive Drector’s Messageby John F. Kynes
10 SOLICITATION VS. CONSPIRACYState Attorney’s Message by Mark A. Ober
12 RESIDENTIAL MORTGAGEFORECLOSURE MEDIATIONPROGRAM UPDATE AND TIPSHillsborough County Bar Foundationby Kristen Foltz and Darlene L. Kelly
14 MARIE FOLSOM RECEIVESCOURT FAMILY AWARDFrom the Courthouseby Hon. Katherine G. Essrig
35
52
features
IN THIS ISSUE
nov
N O V 2 0 1 1 | H C B A L A W Y E R2
18 TREAD CAREFULLY: PRESERVATIONOF ERROR IN FLORIDAAppellate Practice Section by J. Logan Murphy
22 TEEING UP A LOWER BURDEN OFPROOF FOR INDEMNITY CLAIMS Construction Law Sectionby Desiree D. Noisette
24 CALL FOR UNITY IN THE CRIMINAL COURTS Criminal Law Section by Joseph C. Bodiford
27 TOTAL “TAKINGS” WHEN THERE IS AN UPSIDE-DOWN MORTGAGEEminent Domain Section by Daniel R. Feinman
42 BACKGROUND CONCENTRATIONSIN GROUNDWATEREnvironmental and Land Use Sectionby Douglas Grant
Veritas et Justitia, Audrey Flack’s sculpture based upon classical themes of justice, is a contemporary take on traditional Greco-Roman Sculpture. Designedto create a strong public image at the entrance to the George E. Edgecomb Courthouse the artwork reflects the idea that Truth is embodied in all of us.
To create the statue, a small scale maquette was used to make a full sized clay model along with wax and plaster casts. Molten bronze was poured into thecasts which were then welded together and polished smooth. The surface was chemically treated with a patina for color, and gold leaf was applied for highlights.
Audrey Flack is a pioneer of Photorealism and an internationally recognized painter and sculptor. Her works are displayed in the collections of majormuseums including the Metropolitan Museum of Art, The Museum of Modern Art, the Solomon R. Guggenheim Museum, the Whitney Museum of American Art,and the National Museum of Art in Canberra, Australia.
PHOTO BY DAWN MCCONNELL
44 NEW DECISION GIVES HOPE TO PATENT TROLL DEFENDANTSIntellectual Property Section by William (Ty) Giltinan
46 NLRB REQUIRES ALL EMPLOYERS TO POST A NOTICE OF EMPLOYEE RIGHTSLabor & Employment Section by Scott T. Silverman
48 SAME-SEX MARRIAGE IN FLORIDA: PART IMarital and Family Law Section byO. Kim Byrd and Matthew L. Lundy
50 PARTICIPATING IN THE FORECLOSURE MEDIATION PROGRAMMediation and Arbitration Sectionby Lynwood F. Arnold, Jr.,
54 A REVIEW OF HILL V. DAVISReal Property Probate & TrustSection by Matthew J. Zipay
56 DISABILITY INCOMEINSURANCE: WHAT EVERYATTORNEY NEEDS TO KNOWSolo/Small Firm Practitioner Section by Jeffrey D. Brown
58 CLARIFICATION OF ECONOMIC SUBSTANCEDOCTRINE, PART 2Tax Law Section by V. Jean Owens
59 D’AMARIO COMES CRASHING DOWNTrial & Litigation Section by Jaret J. Fuente
60 ILLEGAL ALIENS: EMPLOYERSHIRE THEM, THEY BUY THEMWorkers’ Compensation Section by Michael G. Rabinowitz
in every issue11 BENEFIT PROVIDERS15 100 CLUB41 NOVEMBER CALENDAR47 DECEMBER CALENDAR62 AROUND THE ASSOCIATION63 JURY TRIAL INFORMATION64 CLASSIFIED ADVERTISING64 ADVERTISER INDEX
about the cover
17 SPEAK UP FOR THOSE WHO CANNOT SPEAK FOR THEMSELVESThirteenth Judicial Circuit’s Pro Bono Committee by J. Michael Shea
20 PHILANTHROPY’S MANY FACESCommunity Services Committeeby Sarah M. Hammett
26 LOCAL BAR TAKES STAND FOR CHILDREN WITH AUTISMDiversity Committee by Luis E. Viera and Jorge Santeiro
committeessections
60
17
N O V 2 0 1 1 | H C B A L A W Y E R 3
e d i t o r ’ s m e s s a g e
Grace H . Yang , GrayRob inson , P.A .
The HillsboroughCounty BarAssociation organizesa great variety ofevents—seminars,CLE courses,workshops, and socialevents—throughoutthe year. We try tomention as manyevents as possible inthe magazine so thatreaders can makeplans to attend some.
I hope manyreaders in particularattended theMembership Cookouton October 20th andenjoyed everyone’scompany and goodfood! I like ourmembership lunchesat the Hyatt, but thecookout at the HCBA building was a nice change.In addition, golfers enjoyed the Young LawyersDivision Golf Tournament on October 14th. Thanksto all involved with organizing both events. Wewill include some pictures from both events in thenext issue.
The HCBA is preparing for another big event in November—the Bench Bar Conference. Thisissue has a feature article and the schedule for the Bench Bar Conference. For our bar memberswho represent clients in the courts and interactregularly with our local judges, the Bench BarConference is an event not to be missed. Theconference offers valuable opportunities to learn and network together, enhancing theprofessionalism and collegiality of our local barassociation. Our sincerest thanks to the judges, all sponsors, and other supporters of this event.
I commend ourmembers in thejudicial system. Theycontinue to tacklecomplex legal issues,make the toughdecisions, andadminister justicewhile burdened withheavy workloads andlimited resources.
I also commend ourreaders who continueto give generously oftheir time and energyto many worthycauses. The HCBAparticipated in Make A Difference Day anddelivered gifts toveterans who arepatients at the JamesA. Haley Veteran’sAdministration
Hospital in Tampa. The Diversity Committee is co-sponsoring a Sensory Friendly Santa event on December 17th. The YLD is sponsoring a toydrive. The Thirteenth Judicial Circuit Pro BonoCommittee continues to coordinate pro bonoprojects and to encourage more participation.Please see more in this issue for details.
New to the magazine is a message fromExecutive Director John Kynes. John has beenbusy working with the staff, the officers, and theboard on a variety of different issues since hejoined us in July. We hope to bring additionalupdates from John in future issues.
Happy Thanksgiving to everyone. May you enjoy the company of family and friends; somedelicious food; some good sports to watch; somegood shopping deals; and some recharged energyafter the holiday!
Events AroundThe HCBA
N O V 2 0 1 1 | H C B A L A W Y E R4
h c b a p r e s i d e n t ’ s m e s s a g e
Pedro F. Ba jo , J r. , Ba j o , Cuva , Cohen & Turke l , P.A
RULES TO LIVE BYNothing can put a damper on a year’s
anticipation quicker than scheduling a
“couples” shower during the FSU/Miami or
Florida/Georgia football games.
Nothing can put a damper on a year’s
anticipation quicker than scheduling a
“couples” shower during the FSU/Miami or
Florida/Georgia football games.
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For this month’s article, I have decided to exercise my unfettered discretion andaddress an issue which isnear and dear to virtually alllawyers’ hearts: schedulinganything of substanceduring football season.During my campaign for the Presidency, I asked myconstituents what I can doto make their lives a littlebetter. The overwhelming
Continued on page 5
N O V 2 0 1 1 | H C B A L A W Y E R 5
h c b a p r e s i d e n t ’ s m e s s a g e
Pedro F. Ba jo , J r. , Ba j o , Cuva , Cohen & Turke l , P.A
Continued from page 4
response was to address the issue of schedulingconflicts during football season.
Football season is a hallowed time of year formany. For those of you unfamiliar with footballseason (and apparently there are many of you outthere, as noted by the many conflicts on my socialand professional calendar), it commences generallyon Labor Day weekend and ends with the SuperBowl at the end of January. Furthermore, footballseason consists not only of professional football,but also college football and, for purists such asKen Turkel, high school football. However, forpurposes of our analysis, we will confine the seasonto include only pro and college ball. Following iswhat I hope will be adopted by all as a way of life;but if not, then perhaps it can serve as a bit ofadvice to help us focus on what is really important.
First things first. Never, ever schedule awedding, or worse, a “couples” shower duringfootball season. Absolutely taboo and verboten!Football fanatics spend all year waiting for theleaves to begin changing color, which signifies that football season is in full bloom. Nothing canput a damper on a year’s anticipation quicker than scheduling a “couples” shower during theFSU/Miami or Florida/Georgia football games.Those individuals who somehow are coerced intoattending these “functions” during football seasonmany times do so with a portable radio to listen to the particular game they are being forced tosacrifice. A word of advice—don’t do it. If you do,you deserve for no one to show up.
Moreover, for those of you married folk, noholiday shopping on a weekend during footballseason. True participation in football seasonrequires a substantial financial investment, not to mention an even greater emotional investment,which one cannot forego to spend an afternoon bonding at the mall. The bonding effort will surelyfail because the individual missing the game willeither (a) be miserable and impart his/her miseryon the offending party or (b) will simply manage a way to watch the game in the TV section of themall. Shopping during football season—bad idea—don’t do it.
For legal practitioners out there, schedulinganything of substance, whether it is a depositionor hearing, on any Monday or Friday during
football season is forbidden. The reason is thatfootball season generally requires weekend longcommitments commencing on early Fridayafternoon and terminating on late Sunday evening.For obvious reasons, anything of substancescheduled on either that Friday or the followingMonday will clearly interfere with an individual’senjoyment of his or her football weekend. In theinterest of a little professional courtesy, let’s takecare of all of our business Tuesday, Wednesday, or Thursday of the week during football season.Mondays and Fridays are okay once footballseason ends.
In order to make our football season a perfectsuccess, we require some cooperation from thejudiciary. My respectful request to the judiciarywould be that they refuse to schedule any trialsduring football season. A trial during the middle of football season can clearly ruin the entire seasonbecause of the time required to prepare for andrecover from trial. In fact, I propose to JudgeMenendez that we close the courthouse in itsentirety during football season to preclude even the modicum of a chance that a trial should pop upduring football season. I can only presume that theLegislature is already considering such a proposalin lieu of adequately funding the judicial branch.
I hope that some of these tidbits about footballseason and its importance to society in general will help to enlighten those of you who may nothave given proper consideration to its significance.Special thanks to Ben Hill who contributedsignificantly to the mores expressed in this article.Ben asked that I provide some space for him toissue a comment or two on this matter himself. As Ben stated, “[w]hen Pedro approached meregarding this topic and solicited my input, I wasable to provide him with a personal experience of mine. Prior to my marriage to my lovely wife, Michelle, we were engaged in extensivenegotiations regarding the terms of our prenuptialagreement. After numerous drafts and the adviceof numerous counsel, we found that the onlymatter we could agree on was that we would notpermit other so-called ‘engagements’ to interferewith our participation in and enjoyment of footballseason.” Ben and Michelle are an example of two individuals who have truly contemplated thesignificance of football season and understand itssolemn position in our society.
N O V 2 0 1 1 | H C B A L A W Y E R6
y l d p r e s i d e n t
L aura E . Ward
DL A P iper LLP
It’s that time of the year again. Football season is well underway, the air is slightly cooler (at least on a few days), and the holidays are right around the corner. It is particularly important this time of year toremember the responsibilities and obligations thatwe have as lawyers to those less fortunate. Oneway to do so is by renewing our commitment toperforming pro bono work. Young lawyers in thepast have shared with us a reluctance to undertake
pro bono work fora fear that it mayultimately pullthem away fromtoo many billablehours or get theminvolved in anarea of law theyknow nothingabout. If you sharethese concerns,the YLD has justthe pro bonoproject for you.
This year, theYLD has partneredwith Bay AreaLegal Services
(BALS) and has renewed its focus on providing probono services to those in need in our community.Through this partnership, the YLD staffs BALS’Family Law Forms Clinic one night each month. For those of you not familiar with this project, theFamily Law Forms Clinic is a clinic operated by the Bay Area Volunteer Lawyers Program. The YLD coordinates young lawyer volunteers to assist pro se family law litigants in completingcourt approved family law forms. BALS has atremendous, unmet need for assistance withfamily law cases. Participating in this monthlyclinic is one way the YLD can help. The YLDinvolvement allows BALS to offer an evening clinic
YLD’s Renewed Focus on PROBONO
and provide assistance to those individuals whocannot attend the daytime clinics.
We are extremely proud of and excited about our partnership with BALS on this project, but we cannot be successful without YOUR help. No prior family law experience is needed, andtrained attorneys work in the clinic to field anyquestions that may arise. Volunteers receive atraining packet and watch a short training video,for which they will receive one hour of CLE credit.
This is not an advice clinic. Our volunteerssimply assist in filling out straightforward familylaw forms. Young lawyers can sign on to assistwith just one night or can commit every month. We started the program on October 24th with great volunteer turnout. The next YLD Family Law Forms Clinic night will be held November 29th from 5:30 p.m. to 8:00 p.m. at the GeorgeEdgecomb Courthouse, 2nd Floor, Room 207. The YLD will circulate signup sheets to ourmembers a couple of weeks before each clinic.More detailed information is available on the YLD website (www.hillsbar.com). Please help theYLD renew our commitment to pro bono and join us at our BALS monthly Family Law Forms Clinic!
I would be remiss if I fail to mention that thereare many other pro bono opportunities available.The YLD will provide information about other probono opportunities at each of our YLD quarterlyluncheons. Additionally, we will host a luncheon in the spring to provide more detailed informationabout other available pro bono programs.
The YLD is also sponsoring a December toy drive.Next time you run to the store, please purchase a toy or two to bring with you to our Decemberquarterly luncheon to benefit a less fortunate child.
We look forward to working with you on these exciting projects.
The
Please help the
YLD renew our
commitment to pro
bono and join us at
our BALS monthly
Family Law Forms
Clinic on November
29th from 5:30 p.m.
to 8:30 p.m.
N O V 2 0 1 1 | H C B A L A W Y E R 7
N O V 2 0 1 1 | H C B A L A W Y E R8
e x e c u t i v e d i r e c t o r ’ s m e s s a g e
John F. Kynes , h i l l s borough county bar a s soc i a t i on
Ready, Set, Change
Failure to do so, he warns, puts bar associations at risk.
Despite the challenges, Derocher believes barassociations are well positioned to remain relevantand to make a difference in the lives of current and potential members for years to come.
He cites a number of longtime bar associationadvisers and strategists to make his case.
“There are fundamental and irreversiblechanges that have resulted in a totally newlandscape for what associations were designed to do,” says veteran strategist Harrison Coerver.“It’s not that the old model was bad. It’s just adifferent environment now.”
Continued on page 9
HCBABoard Retreat
We will be considering changes and
upgrades in different programs to create
even greater value for all HCBA members in the future.
Ready, set, change.That’s the headline from a recent cover story
in the ABA’s Bar Leader on the future of barassociations and how they can better help theirmembers adapt to an ever-changing legal profession.
Change is inevitable in every area of life and canbe a scary thing for many—particularly in theseturbulent economic times.
In today’s 24/7 media onslaught, it’s impossible toavoid a constant barrage of messages—both positiveand negative—related to change, whether it be inbusiness, politics or the legal profession.
The challenge confronting bar leaders, writerRobert J. Derocher notes, is their willingness toembrace change and aggressively confront sometimespainful programming decisions and to consider newbusiness strategies.
Gordon Hill, Richard Martin, Kelly Zarzycki, James Schmidt, Web Melton Tammy Briant, Kristin Norse, Kevin McLaughlin, Melissa Mora
Right: Pedro Bajo and Michael Boucher
N O V 2 0 1 1 | H C B A L A W Y E R 9
e x e c u t i v e d i r e c t o r ’ s m e s s a g e
John F. Kynes , h i l l s borough county bar a s soc i a t i on
With these challenges, however, also comeopportunities for innovation and success.
Michael Rogers, a noted business consultant andcolumnist, predicts those bar associations that canharness their knowledge of the legal profession andcombine it with technology will do well.
Some important strategies to thrive amid changeare: fostering the use of technology, offering strongCLE, and involving more young lawyers inleadership positions.
Other trends and opportunities discussed includethe trend of more lawyers going solo as well as thecontinuing drive toward specialization.
Not surprisingly, critical to the effort of managingchange starts with having strong board leadershipand staff who are ready to take on difficult issues. It also involves talking to and actually “listening” to association members.
Along these lines, the HCBA conducted amembership survey this past spring. The resultswere presented to the HCBA board at its planningretreat in August.
Among the highlights of the 43-question member survey:
• 85% say they either somewhat or strongly agree the HCBA provides valuablemembership benefits and activities.
• 76% say they have taken a CLE course through the HCBA in the last two years.
Continued from page 8
• 90% say they regularly read the Lawyer.• HCBA members indicated they have an interest
in a wide range of program opportunities, withCLE seminars leading the way.
• The frequency and method of communicationalso continues to be an important issue forHCBA members.
Typical of the comments made as to why the HCBAwas important to them, one member said it is “agreat place to build relationships with other lawyers.”
Another responded: “I appreciate the sense ofcommunity I feel as an HCBA member.”
As the new executive director for the HCBA, I amcommitted to preserving the strong organizationalvalues and mission in the community that helpedmake the HCBA what it is today.
At the same time, we will be considering changesand upgrades in different programs to create evengreater value for all HCBA members in the future.
This includes efforts to improve the performanceof our Lawyer Referral Service and continued focuson providing quality CLE. It also involves increasedattention to new technology and communicationwith our members through various media platforms,including social media.
I welcome your ideas related to these efforts. Call me directly at 813-221-7775 if you’d like to talk,or email me at [email protected].
See you around the Chet.
s t a t e a t t o r n e y ’ s m e s s a g e
Mark A . Ober, S t a t e At t o rney f o r the Th i r t e en th Jud i c i a l C i r cu i t
It is most common for solicitors to get caught when theyencourage or hire “the wrong person”—someone who has no desire to engage in the criminal conduct with them. The solicitor gets charged, but because the criminal act didnot occur, he is not subject to the same punishment as theunderlying crime. If the individual encouraged or hired tocommit the crime tells the solicitor he agrees to participate,but in reality has no intention of committing the crime, he or she is not guilty of a crime. This scenario happens whenan individual believes he or she is hiring a “hit man” tomurder someone. “The crime of solicitation is completedwhen the actor with intent to do so has enticed or encouragedanother to commit a crime; the crime need not be completed.” State v. Johnson, 561 So. 2d 1321, 1322 (Fla. 4th DCA 1990).
In cases where a solicitation or conspiracy exists, theperpetrator or perpetrators can relieve themselves ofresponsibility for the crime if they abandon the plan entirely. That is, if one solicits another to commit a crime,that solicitor must subsequently persuade the other not to commit the crime or take measures to prevent theoccurrence of the offense. The same is true in a conspiracy,meaning that those involved must completely abandon thecriminal agreement or prevent the commission of the offense.
My office will continue aggressive prosecution ofindividuals who choose to participate in this type of criminalactivity in our community.
Solicitation vs.ConspiracySolicitation vs.Conspiracy
N O V 2 0 1 1 | H C B A L A W Y E R1 0
Remember those terms? If you are not in the habit of using these terms, it is easy to confuse them or to even believe they are analogous. However, theyhave very different and distinct meanings.
Solicitation exists when one personcommands, encourages, hires, or requestsanother person to engage in criminalconduct. The person who solicits anotheris the one who is committing the criminalact. The individual commanded,encouraged, or hired to do the unlawfuldeed is not subject to prosecution unlessthat person in turn agrees to do theunlawful act, which would turn thearrangement into a conspiracy. Aconspiracy requires an agreement betweentwo people. A conspiracy exists in Floridawhen two or more people agree to commita crime. If out-of-court statements areoffered to prove the making or terms of a conspiratorial agreement, then they are “verbal acts” not excluded under thehearsay rule. See Charles W. Ehrhardt,Florida Evidence § 801.6 (2011 ed.). Thestatements are not being introduced toprove the truth of the matter asserted, butbecause the act of uttering the words givesrise to legal consequences. See Banks v.State, 842 So. 2d 939 (Fla. S. Ct. 2003).
If out-of-court statements are offered
to prove the making or terms of a
conspiratorial agreement, then they
are “verbal acts” not excluded under
the hearsay rule.
If out-of-court statements are offered
to prove the making or terms of a
conspiratorial agreement, then they
are “verbal acts” not excluded under
the hearsay rule.
N O V 2 0 1 1 | H C B A L A W Y E R 1 1
n AFFINISCAPE A Law Firm Merchant Account through our benefit provider enables your practice to accept credit cards in aprofessional manner and in compliance with trust accounting procedures. Why turn away potential clients simply because they can not pay a retainer inadvance? Go to http://hillsbar.affiniscape.com for more information.
n THE BANK OF TAMPA With assets in excess of $975 million, The Bank of Tampa is the largest independently owned bank in Hillsborough County. More than 450 Hillsborough County law firms rely on The Bank of Tampa for their banking and financial services needs. We understand the distinctive needs of legal professionals and have beenusing our special knowledge and expertise to help attorneys and theirpractices succeed for more than 25 years. The Bank of Tampa has been the designated financial services benefit provider for the HillsboroughCounty Bar Association since 2005. For HCBA members, The Bank of Tampaoffers a free personal checking account with no minimum monthly balancerequirement and no monthly maintenance fee; free standard checks; noforeign ATM fees; no additional surcharge fees incurred at over 1,000 PublixPresto! ATMs; free Visa Check Card with special higher daily spending andwithdrawal limits; Free Personal Online Banking and free CheckFree® Webelectronic bill payment service at www.bankoftampa.com, and other HCBAmember-only benefits. For more information, contact Jeff Armstrongat (813) 998-2733.
n DIGITAL LEGAL Digital Legal uses the latest technology toprovide electronic discovery and litigation support services. Our consultantscan help your firm identify, preserve, collect, process, review, produce andpresent electronic evidence. We also create load files for evidence reviewtools like Summation and Concordance and offer technical assistance withthese applications. Our traditional document services include imaging, OCR,coding, copying, & high speed printing. Bar members are entitled to one free hour of technology and project manage ment consulting - a $150 value.Contact Jud Parker, [email protected], 813.222.1322.
n FREEDMAN’S OFFICE SUPPLIES On the 10th
(if the 10th falls on a Saturday or Sunday the discount would be honored onthe Friday before) of every month, Freedman’s offers 10% off your entireorder: anything out of its supply catalog (over 30,000 items). Freedman’sprovides a free price analysis specific to your account, a free usage report(every three months). Freedman’s will look at all of your buying habits to see if there is opportunity to save you money and provide each account witha local Sales Representative and a local Customer Service Representative.Each account has a personal driver. Your driver will place your product inthe desired area. Freedman’s also provides home-made cookies baked dailyjust to say thank you for being a Freedman’s Customer. Contact: TraceyBastic, [email protected] or 813-882-0032.
n GUARDIAN LIFE INSURANCE COMPANYThe Nation’s Premier Individual Disability Income Policy forAttorneys is now available to HCBA Members… with an exclusive10% permanent discount! Long recognized as the nation’s premierdisability income protection plan for attorneys, The Guardian IndividualDisability plan leads the industry with its “true own occupation” definition of disability, high benefit limits and other forward thinking features that will ensure your peace of mind now and as your practice grows. To learnmore, contact Jeffrey D. Brown, Program Coordinator, at theGuardian’s West Central Florida agency (813) 289-8500.
HILLSBOROUGH COUNTY BAR ASSOCIATION BENEFIT PROVIDERS
Listed below are companies that have agreed to participate as a HCBA Benefit Provider. They offer all HCBA members a special discount or value added service especially for you, an HCBA member.
n JOHN BOYER, INC. offers HCBA members a permanent 15%reduction in asset management fees and will waive the initial financial planningfee for new clients. John Boyer, Inc. is an independently owned fee-basedRegistered Investment Advisor. The firm’s mission is to simplify its clients’lives by getting their financial house in order. It offers a full range ofpersonalized financial services, from retirement, estate and tax planning toinvestment management, asset protection and wealth preservation. PrincipalJohn Boyer, who established the firm in 1995, is a Certified Financial Plannerwith over 20 years of experience. Contact Terrell Boone, Wealth Advisorat 813-254-9500 or [email protected].
n LNS TECHNOLOGIES is a leader in IT & NetworkSystems infrastructure services and solutions. Since 1994, LNS hasconsistently provided our legal clients with the latest technology and supporttools allowing their businesses to operate efficiently. LNS Technologies’scalable, IT solutions and services increase productivity, reduce costs, andoptimize asset utilization to derive maximum value from your IT investment.All HCBA members receive a FREE computer and network system healthcheck upon request. Please contact Sales at (813) 221-1315, or email your request or requirement to : [email protected] our website at: http://www.LNStech.com.
n SALTMARSH,CLEAVELAND & GUNDSaltmarsh, Cleaveland & Gund is now a HCBA Benefit Provider! Saltmarshoffers HCBA members a 10% discount off standard hourly rates on allLitigation Support and Business Valuation Services. Founded in 1944,Saltmarsh is a large regional full-service accounting and consulting firm,which has developed a special niche in providing services to attorneys andlaw firms. www.saltmarshcpa.com *Regulated by the State of Florida.Contact Lee Bell (813) 287-1111.
n THOMPSON STUDIOS We are proud to offer you an excellent photography resource for all law firms and individual photos.Thompson Studios is an all-digital, world-class photography studio. In studio or on location, we will capture all your photographic visions... and we guarantee you’ll have fun doing it. Thompson Studios will come to your office for firm photos and headshots for your convenience. As a HCBA member, we offer you $100 off your location photo session. Keep us in mind for holiday and special occasion photos as well. Please contact Kim at Thompson Studios at 813-994-2000.
n Trial Consulting Services, LLC (TCS)provides wide-ranging services and solutions to support every aspect ofyour case. Our services include exhibit boards, trial graphics, animation,medical illustrations, electronic trial presentation, video depositions, DVT,mock trials, CLE seminars and more. Our expert team is experienced in all practice areas of law. Visit our website at www.trialcs.com for a complete listing of services and testimonials. All HCBA members receivea 10% discount on all trial research including mock trials.
n YTB TRAVEL SERVICES Book your travel where it makes a difference! Visit the Hillsborough County Bar Association travelwebsite at: www.ytbtravel.com/hillsbar • You’ll find the same airlines,hotels, rental cars, cruises and more. • You’ll get deeply discounted travelprices! • Each time you book travel, a portion of the travel commissionswill go to HCBA! It’s that simple! www.ytbtravel.com/hillsbar. Use thiswebsite for all your travel needs as well as sending flowers and giftbaskets and purchasing concert and event tickets.
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credit counselor through our business partner, the Centerfor Financial Counseling. Documents are exchanged beforemediation is conducted.
Since the inception of the Thirteenth Circuit RMFMP onAugust 2, 2010, over 5,500 residential mortgage foreclosurecases have been filed in Hillsborough County. The RMFMPconducted its 500th mediation in September 2011. In order
Continued on page 13
ttThe Hillsborough County Bar Foundation,the Program Manager of the ResidentialMortgage Foreclosure Mediation Program(“RMFMP”), extends its thanks to thejudges, mediators, attorneys, andhomeowners who have helped make the first year of the program a success.
The RMFMP was created by the FloridaSupreme Court as a mechanism to assisthomeowners facing foreclosure and to serveas a case management tool assisting theCourt with the large volume of foreclosurecases filed in recent years. Each of thetwenty circuits adopted an AdministrativeOrder, based on a Florida Supreme CourtAdministrative Order, defining theirrespective programs. Locally, AdministrativeOrder S-2011-010 governs the ThirteenthCircuit’s Program. Foreclosure casesinvolving a residential homestead propertyare required to be referred into the RMFMP.Each borrower participates in financialcounseling, conducted by a HUD certified
Residential MortgageForeclosure MediationProgram Update and Tips
h i l l s b o r o u g h c o u n t y b a r f o u n d a t i o n
Russel l M. Blain, HCBF President , St ichter, Riedel , Blain & Prosser, P.A.
Since the inception of
the Thirteenth Circuit
RMFMP on August
2, 2010, over 5,500
residential mortgage
foreclosure cases
have been filed in
Hillsborough County.
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h i l l s b o r o u g h c o u n t y b a r f o u n d a t i o n
Russel l M. Blain, HCBF President , St ichter, Riedel , Blain & Prosser, P.A.
to make the next 500 mediations even moresuccessful, here are some tips for attorneys andmediators involved in the RMFMP:
Defense Attorneysn Serve the Program Manager with a Notice
of Appearance to facilitate your client’sparticipation in the program. If you do not, theProgram Manager will not know to contact you on behalf of your client and will assume yourclient is not represented by counsel.
n Advise the Program Manager if your client will not be participating in the RMFMP in order to facilitate the progression of the case.
n Submit updated financials from your clientprior to mediation so the Program Manager cansupply them to the lender.
Plaintiff Attorneysn Submit accurate contact information for the
borrower and notify the Program Manager directlyif you obtain new information. Note, pursuant toThirteenth Judicial Circuit Administrative Order S-2011-010, the RMFMP timeframes will be held in abeyance until complete and accurate borrowerinformation is provided.
n Requests for additional financial documentsshould be forwarded to the Program Manager prior to mediation to allow time for collection of
information. Note, the borrower is only required to submit the information noted in theAdministrative Order.
n Comply with a borrower’s request for plaintiff ’sdisclosure to avoid cancelled mediations, paymentof additional fees, and/or Notices of Non-Compliancebeing filed with the Court.
Mediatorsn Review Mediator Ethics Advisory Committee
(MEAC) opinions pertaining to the RMFMP.n Be familiar with the various workout options
available to borrowers.n Recall your obligation to attend a second
mediation session, if required, even though you will not receive payment for the second session.
n Be patient if you have not been assigned acase. Our pool of mediators is large,thereby preventing swift rotation.
Unfortunately, the foreclosurecrisis is not over. The ProgramManagers throughout the state of Florida regularly meet to discussthe RMFMP to improve the program.We value your opinions. Pleasecontact us if you have any ideas for improvement.
Authors: Kristen A. Foltz and Darlene L. Kelly,Hillsborough County Bar Foundation
Continued from page 12
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f r o m t h e c o u r t h o u s e
Chair : The Honorable Tom Barber, Circuit Court Judge
Thirteenth Judic ia l Circuit
Judicial Circuitjudiciary. In bothher current andpast positions,Ms. Folsom has been anexemplary publicservant. She isalways willing toprovide whateverassistance shecan to everyonewith whom she interacts,includingmembers of thebar, members of the generalpublic, othercourt staff, andemployees of theclerk’s office. Shenot only extends
herself to assist others, but she usually does so witha smile, a witty quip, and a twinkle in her eye.
The Court Family Award holds specialsignificance as it is the only award presented by the Trial and Litigation Section to a non-lawyer. Ms. Folsom is indeed deserving of the award, andcongratulations are extended to her for her receiptof this distinguished award.
Author: Hon. Katherine G. Essrig, Circuit CourtJudge, Thirteenth Judicial Circuit
Marie Folsom ReceivesCourt Family Award
Marie Folsomis the recipientof the 2011HillsboroughCounty BarAssociation Trialand LitigationSection’s CourtFamily Award.This award ispresentedannually to astate or federalcourt supportstaff memberwho hasdemonstratedongoingcourtesy,consideration,andprofessionalismtowardsmembers of the bar. Ms. Folsom, who has served as my judicial assistant for the past twenty-oneyears, was presented with the award by SectionPresident Ron Hanes at the Section’s annualawards luncheon on May 3, 2011, at the ChesterFerguson Law Center.
Prior to her tenure as a judicial assistant, Ms.Folsom served as an employee of the HillsboroughCounty Clerk of Court for eleven years, includingassignment as a courtroom deputy clerk to manycurrent and previous members of the Thirteenth
Marie Folsom not only extends herself to
assist others, but she usually does so with a
smile, a witty quip, and a twinkle in her eye.
Marie Folsom, pictured with the Court Family Award, shared the honor with her co-workers.
THANK YOU TO ASK A LAWYER LIBRARY SERIES VOLUNTEERSLyndy Jennings and Linda Faingold
Contact the HCBA Lawyer Referral & Information Service to volunteer!Call 813-221-7783 or Email [email protected]
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Hillsborough County Bar Association 100 ClubLaw firms with 100% membership in the HCBA
12th Judicial Circuit13th Judicial Circuit Court13th Judicial Circuit Court Plant City2nd District Court of Appeal LakelandAddison & Howard, P.A.Allen Dell, P.A. Alley Clark GreiweAlmerico & MooneyAlvarez GarciaAnsa Assuncao, LLPAnthony & Partners, LLCAnthony J. LaSpada P.A.Austin, Ley, Roe & Patsko, P.A.Baccarella & Baccarella, P.A.BajoCuvaBanker Lopez Gassler, P.A.Barker, Rodems & Cook, P.A.Barnett, Bolt, Kirkwood, Long and McBride, P.A.Bavol Judge, P.A.Bay Area Legal Services Plant CityBay Area Legal Services WimaumaBeltz and RuthBivins & Hemenway, P.A.Boire & DePippo, P.L.Bradford & BradfordBrannock & Humphries, P.A.Brennan, Holden & Kavouklis, P.A.Attorneys at LawBroad and CasselBuell & Elligett, P.A.Bush RossButler Pappas Weihmuller Katz Craig, LLPCaglianone, Miller & Anthony, P.A.Carey, O’Malley, Whitaker & Mueller, P.A.Carlton Fields, P.A. Carman & Corn, P.A.Caveda Law Firm, P.A.Cedola and Vincent P.L.Cheeseman & Phillips, P.A.Christopher N. Ligori, P.A.City of TampaClark & Martino, P.A. Clerk of the Circuit Court’s OfficeCody Fowler Davis Trial Attorneys, P.ACordell & Cordell, P.C.County Attorney’s OfficeCristal Law GroupCruser Mitchell Nicholas & Bell, LLPDanahy & Murray, P.A. Davidson McWhirter, P.A.de la Parte & Gilbert, P.A. Dennen, Ragano, PPLCDennis LeVine & Associates, P.A.District Court of AppealDonica Law Firm, P.A.Dorman & Gutman, P.L.Escobar, Ramirez and AssociatesFernandez & Hernandez, LLCFiol & Gomez, P.A.Fisher and Frommer
Fisher Law GroupFlorida Default Law Group, P.L.Fowler White Boggs P.A.Fuentes & Kreischer, P.A.Fuller Holsonback & Malloy, P.A. Gallagher Keenan, P.A.Gardner Brewer Martinez Monfort, P.A.Gatlin & Birch, P.A. Gaylord Merlin Ludovici Diaz & BainGenders-Alvarez-Diecidue, P.A.George & Titus, P.A.Gibbons, Tucker, Miller, Whatley, & Stein, P.A.Givens Law GroupGlenn Rasmussen Fogarty & Hooker, P.A.Guemmer & RittGunn Law GroupHancock & Hancock, P.A.Harmon, Woods, Parker, Hendricks &Abrunzo, P.A.Harris and Hunt, P.A.Hillsborough County Sheriff’s OfficeHill Ward HendersonHimes & Hearn, P.A.Hines Norman Hines, P.L. Holcomb & Mayts, P.L.Hunter Law GroupJames, Hoyer, Newcomer & Smiljanich, P.A.Jayne M. Lambert P.A.Jayson, Farthing, Skafidas & Wright, P.A.Jeanne T. Tate, P.A.Johnson, Pope, Bokor, Ruppel & Burns, LLPJorgensen & Ozyjowski, P.A.Joryn Jenkins & AssociatesJung & Sisco, P.A.Kadyk Delesie & Espat P.A. Cap TrustKeith P. Ligori, P.A.Keys & Coakley, P.L.Knopik Deskins Law GroupKunkel, Miller & Hament, P.A.Kynes, Markman & Felman, P.A. Lauro Law FirmLaw Office of Donald P. Decort, P.A.Law Office of Kevin M. GilhoolLaw Office of Patricia Gomez, P.A.Law Office of Robert M. GellerLaw Offices of Butler & Boyd, P.A.Law Offices of Darrin T. Mish, P.A.Law Offices of Emma Hemness, P.A.Law Offices of Jacob I. ReiberLeon & Berg, P.A.Levine, Hirsch, Segall, Mackenzie & Friedsam, P.A.
Lopez, Kelly & Bible, P.A. Luks, Santaniello, Perez, Petrillo & GoldLynette Silon-Laguna, P.A.Mac A. Greco, Jr., P.A.Manson Law Group, P.A.Mark Bentley, P.A.Marlowe McNabb, P.A.
Martinez, Odom Law GroupMary Beth Corn, P.A.McCumber, Daniels, Buntz, Hartig & Puig, P.A.Michael P. Maddux, P.A.Mike Murburg, P.A.Morgenstern & Herd, P.A.Older, Lundy & Weisman, Attorneys at LawPhillip A. Baumann, P.A.Pitisci, Dowell, Markowitz & MurphyReliaQuest Legal ServicesResnick & Serrano, P.A.Richard W. Driscoll, P.A.Rieth & Ritchie, P.A.Robert E. Morris, P.A.Rumberger, Kirk & Caldwell, P.A.Saady & Saxe, P.A.Scarritt Law Group, P.A.Schiff Law GroupSchropp Law FirmSessions Fishman Nathan & Israel, LLPShook, Hardy & Bacon, LLPSisco LawSparkman & Sparkman, P.A.Spector Gadon & RosenStanton Cronin Law Group, PLStetson University College of LawStichter, Riedel, Blain & Prosser, P.A.Stone & Walder, P.L.Straley & RobinSykes Enterprises, Inc.Tampa Law Advocates, P.A.Terrana Perez & Salgado, P.A.The Bowes Law GroupThe Criminal Defense Group, P.A.The Davis Law Group, P.A.The Diecidue Law Firm, P.A.The Fernandez FirmThe Foster Law Group, P.A.The Plante Law Group, PLCThe Thorpe Law Firm, P.A.The Yerrid Law FirmThomas & LoCiceroThompson & BrooksThompson, Sizemore, Gonzalez & Hearing, P.A. Thorn Whittington, LLPThorn | Lawrence, P.L.Timothy G. Anderson, P.ATison Law GroupTrentalange & Kelley, P.A.Trombley & Hanes, P.A.U.S. District CourtUnited States Bankruptcy CourtWagner, Vaughan & McLaughlinWalters Levine Klingensmith & Thomison, P.A.Walton Lantaff Schroeder & Carson LLPWeekley | Schulte | Valdes, L.L.C.Wenzel, Fenton, Cabassa, P.A. Whitney Bardi Mediation Group, Inc.Wilson Law Group, P.A.Williams Schifino Mangione & Steady P.A.
FOR YOUR FIRM TO BE LISTED HERE, CONTACT DAWN McCONNELL, [email protected]
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tt
N O V 2 0 1 1 | H C B A L A W Y E R 1 7
t h i r t e e n t h j u d i c i a l
c i r c u i t ’ s p r o b o n o c o m m i t t e e
the calling of St. Michael’s Legal Centerfor Women and Children, Inc. (SMLC).
In its fourth year, SMLC is a missionof Christ the King Catholic Church in Tampa and serves persons inHillsborough, Pinellas, Pasco,Hernando, and Citrus counties. SMLCstarted as a small teaching project toassist paralegal students in obtaininghands-on experience while assistingwomen and families in their effort tocollect child support. As the needs of the poorbecame more evident, SMLC expanded the type of cases we handle to include family law,foreclosure defense and other property matters,creditors rights, and bankruptcy. We do notdiscriminate based on religion, race, color, sex, or national origin.
SMLC provides services to the family whocannot afford legal services and falls into the gap between just above the poverty line and asustainable family income, the “working poor.”Bay Area Legal Services provides legal services tothose whose income is not more than 125% of thepoverty level, but many families cannot afford alawyer, even with a $30,000 annual income for afamily of four. For this reason, SMLC chose to setits upper income limit at 225% of the poverty level.
As a pro bono law firm and a mission of theCatholic Church, SMLC is governed by the canonsof the Florida Bar and the Catholic Church. Whenchoosing cases, we refer to these two sets of canons.
SMLC has received volunteer support fromlawyers, paralegals, non-lawyers, religiousorganizations, paralegal and criminal justicemajors, and law students. It serves as aclearinghouse for lawyers and paralegalsinterested in providing pro bono services. Ourgoal is to connect those in need and those whowant to provide legal service to the community.
For any great society to sustain itself, its
legal system must be open and accessible to
all. The challenge for us in the legal system
is to make our system fair and accessible to
those who cannot afford our services.
SMLC fills a growing need in our society. Althoughthe HCBA and judiciary have taken great strides toassist local pro se litigants, there is a substantialneed for the members of our profession to provide pro bono help, because many cases are far beyond the capability of the non-lawyer to litigate. As thedemand for our services continues to increase, sodoes our need for more volunteers. We welcome yourinquiries as to how your group can help us meet thegoals, objectives, and challenges of providing legalservices to the needy. We need help not only fromthose who are able to provide professional services,but also from community organizations, corporations,and religious institutions. If you or your organizationare interested in volunteering or are interested inhaving one of our staff members speak to your groupabout our program, please telephone our Director ofVolunteers at (813) 289-3585.
For any great society to sustain itself, its legalsystem must be open and accessible to all. Thechallenge for us in the legal system is to make
our system fair and accessible tothose who cannot afford our services.This is the objective SMLC strives to achieve.
Author: J. Michael Shea, JD, Director of St. Michael’s Legal Center
Speak Up for ThoseWho Cannot Speak For Themselves
The headline you just read comes from Proverbs 31:8. It is
N O V 2 0 1 1 | H C B A L A W Y E R1 8
TREAD CAREFULLY: PRESERVATION OF ERROR IN FLORIDAAppellate Practice Section
Co-chairs: Marie A. Borland, Hill Ward Henderson, and Kristin A. Norse, Kynes, Markman & Felman, P.A.
In Aills v.Boemi, 29 So. 3d1105 (Fla. 2010),the Courtconcluded thatcounsel did notpreserve his trialobjection forappellate reviewbecause he wasnot sufficientlyspecific instating his legal objection.During trial,defense counselobjected toplaintiff ’sargument inclosing thatpostoperativenegligence had
occurred, on the grounds thatthere was noevidentiary basisin the record to support theargument. Onappeal, theSecond Districtreversed the trial court’s order denying the defendant’smotion for newtrial, but on adifferent basis:that the issue of postoperativenegligence “had
Preservation of error forappeal is crucial. Nomatter the merits of yourcase, appeals can rise and
fall on whether the ruling you arechallenging is properly preserved.And while preservation of error hasalways been a requirement, recentdecisions from the Florida SupremeCourt reflect increasing concern forspecific and proper preservation.
Recent decisions from the Florida
Supreme Court reflectincreasing concern
for specific and proper preservation.
Free Wireless Internet Access2633 McCormick Drive, Suite 101, Clearwater, Florida 33759
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Phone: (727) 796-1000 or (800) 538-4173
Facsimile: (727) 797-2200
Continued onpage 19
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TREAD CAREFULLY: PRESERVATION OF ERROR IN FLORIDAAppellate Practice Section
Continued from page 18 sustained, the party “must alsotimely move for a mistrial.”
Any trial lawyer should be well aware of the strict guidelinesgoverning preservation of error or should contact an appellatepractitioner who can help. Particularrules govern preservation of error in areas ranging from motions in limine and Frye challenges, tojury selection and jury instructions.Making specific and properobjections could be the differencebetween a well-taken appeal and
an appeal rejectedin the spirit of Aillsand Companioni.Tread carefully.
Author: J. Logan Murphy,Hill Ward Henderson
neither been pled in the complaintnor tried by consent. “The FloridaSupreme Court quashed thedistrict court’s ruling, concludingthat defense counsel’s objectionwas not preserved for appellatereview because he did not “advancethe specific ground of objectionrelied upon by the district court for reversal.” These expectations of specificity are now par for thecourse, and Aills has already beencited as requiring specific andaccurate objections to preserveissues for appeal. See, e.g., Lewisv. Sun Times Corp., 47 So. 3d 872,874 n.2 (Fla. 3d DCA 2010).
Not only must objections bespecific, but their form must beproper. In Companioni v. City of
Tampa, 51 So. 3d 452 (Fla. 2010),the Supreme Court made clear that a party objecting to attorneymisconduct during closingargument must also timely movefor a mistrial in order to preservethat objection for appeal. Eventhough defense counsel objectedmultiple times to misconductduring closing (all of which weresustained), and had moved for a new trial on the basis of thoseobjections, the trial court deniedthe defendant’s motion because it had not “moved for a mistrial” as well. The district court reversed,concluding that “a motion for a mistrial is not a prerequisite to moving for a new trial.” TheSupreme Court disagreed, holdingthat even when a party’s objectionto attorney misconduct is
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PHILANTHROPY’S MANY FACESCommunity Services Committee
Co-Chairs: Zachary J. Glaser, Sponsler, Bennett, Jacobs & Adams, P.A., and Sarah M. Hammett, Saxon, Gilmore, Carraway & Gibbons, P.A.
most beneficialphilanthropicgesture for both the volunteer andthe beneficiary.
The HCBAencourages itsmembers and theirlaw firms to engagein both kinds ofphilanthropy:fundraising andvolunteering.Clearly, it is farsimpler to put cash to work. Many needed itemsmust be gathered—cash, new and used goods, food,
T he concept ofphilanthropy includesmany types of giving.Most of the time,
“philanthropy” is used assynonymous with “fundraising.” Of course, monetary donations are a huge part of philanthropy,but donating time is often the
supplies—andso fundraisingfocuses onthose. Thebenefits ofvolunteerinvolvement,however, aremore directlyrewarding tothe volunteer. It is importantto recognize,too, that anysuccessfulphilanthropicendeavor
Donating time is oftenthe most beneficial
philanthropic gesturefor both the volunteerand the beneficiary. Continued on
page 21
N O V 2 0 1 1 | H C B A L A W Y E R 2 1
PHILANTHROPY’S MANY FACESCommunity Services Committee
Continued from page 20
requires volunteers to put cashdonations to work.
Whether you choose to volunteeryour time or money, or drivedonations, the HCBA encouragesyou to become actively involved inour community service events thisyear. Studies show that annualdonors can lose interest over time,but that being asked to share theirtime and talent revitalizes theircommitment—even if they do not accept the invitation. It istherefore important to renew ourencouragement to past donors tojump in and lend a helping hand.
On that note, the HCBA hasseveral exciting events planned,and there are many opportunitiesfor you to get involved. One event that we recently added to our repertoire is the Day at the
Buccaneers to benefit the FosterAngels program. We will be taking18-20 foster children and theirparents to a Buccaneers game, andwe will need four to six volunteersto join the families at the game.The Buccaneers are donating 24tickets for the event. The Bucshave indicated we will likely onlyget one to two weeks’ notice of the game to which we are invited.So, the Foster Angels will be onstandby, and we will probably do a first come, first served e-mail tothe committee to see who wouldlike to volunteer. Reach out toSarah Hammett at [email protected] or Zach Glaserat [email protected] if you would like to be added to the committee’s email list.
As for our recent efforts, theMake a Difference Day event inOctober was a resounding success
again this year. Through donations from HCBA members, we filled 38veterans’ wish lists. We deliveredwish list donations to the veteransat the James A. Haley VeteransHospital on Make a Difference Day and shared our time with theveterans, many of whom have noliving relatives. Special thanks goout to Jan L. Brown and the TampaBay Paralegal Association for theirabove-and-beyond assistance withthis worthy event.
Other exciting programs wemay help with include Lawyers for Literacy, Alpha House, Dressfor Success, Faith Café to Feed theHomeless, and Toys for Tots. Staytuned for more information andenjoy your Thanksgiving holiday!
Author: Sarah M. Hammett,Saxon, Gilmore, Carraway &Gibbons, P.A.
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settle underlyingdefect claims,leaving thecontractor to “payand chase” itssubcontractorsand suppliers for recovery ofsettlement anddefense funds. As a result,downstreamcommon lawand/or contractualindemnity claimsbecome key basesfor recovery.Florida’s“vouching in” lawcan serve as amechanism tolower the burden
TEEING UP A LOWER BURDEN OF PROOF FOR INDEMNITY CLAIMS Construction Law Section
Chairs: Timothy C. Ford, Hill Ward Henderson, and Jason J. Quintero, Carlton Fields, P.A.
Settlements are commonplace in complexconstruction defectlitigation disputes due
in part to the economy andencouragement of alternativedispute resolution under Chapter558, Florida Statutes. In manyinstances, the primary parties to a defect case—the owner andcontractor, for example—may
of proof onindemnityclaims fromactual liability topotential liability—if certain keyfactors are met.
Every districtin Floridaapplies thegeneral rule of vouching in: “that anindemnitor whohas notice of thesuit filed againstthe indemniteeby the injuredparty and who
Continued onpage 23
Where the underlyingclaim is settled for areasonable amount
and the party seekingindemnity provided theindemnitor with notice
and an opportunity to defend, then
‘the party seekingindemnification must
establish that thesettlement was based
on his potential liabilityto the plaintiff.’
N O V 2 0 1 1 | H C B A L A W Y E R 2 3
is afforded an opportunity toappear and defend it is bound by a judgment rendered againstthe indemnitee as to all materialquestions determined by thejudgment.”1 Where the underlyingclaim is settled for a reasonableamount and the party seekingindemnity provided the indemnitorwith notice and an opportunity to defend, then “the party seekingindemnification must establishthat the settlement was based on his potential liability to theplaintiff.”2 If notice and anopportunity to defend were notproperly given, or the settlementamount was not reasonable, then“the settling indemnitee mustshow that it was actually liable to the plaintiff.”3
The check list below providessuggested tactics to tee upapplication of the potentialliability burden:
(1) Provide written noticeand an opportunity todefend early. For example,include language givingdownstream parties noticeand an opportunity to defendpre-suit, such as during theChapter 558 process.
(2) Provide early writtennotice and opportunity
to participate insettlement discussionsand mediation. In CampDresser, three weeks’ noticeof mediation was consideredreasonable. Of course, theearlier the notice, the better.
(3) Have your expert ensurethat the settlement isreasonable. If an expert isretained at the time ofsettlement, have the expertconfirm that the settlementamount is reasonable prior toentering into the settlement.
(4) Structure the settlementagreement to clearlyidentify the claimscovered. The court will need to have clear evidencethat the claim subject toindemnity was included in the settlement.
The benefits of triggering thepotential liability burden aresignificant in construction defectcases. For one, the party seekingrecovery may have the opportunityto ride the coat tails of theopposing expert in the underlyingdefect lawsuit in proving potentialliability. In addition, because “it isfor the court to determine whetheractual liability or potential liabilityis the indemnitee’s burden,” anindemnitee may obtain settlementleverage or secure early confidence
in recovery through dispositivemotion practice.4 Overall, anindemnitee may obtain significantsettlement and trial leverage byfollowing the simple steps to triggerthe potential liability burden ofproof when seeking recovery fromdownstream indemnitors.
1 Ashtead Group, PLC v. RentokilInitial, PLC, 7 So. 3d 606, 609 (Fla. 2d DCA 2009). See also HeapyEngineering, LLP v. Pure Lodging, Ltd., 849 So. 2d 424 (Fla. 1st DCA2003); Atlantic Coast DevelopmentCorp. v. Napoleon Steel Contractors,385 So. 2d 676 (Fla. 3d DCA 1980);Olin’s Rent-A-Car System, Inc. v. RoyalContinental Hotels, Inc., 187 So. 2d 349(Fla. 4th DCA 1966); Camp, Dresser &McKee, Inc. v. Paul N. Howard Co., 853So. 2d 1072, 1079 (Fla. 5th DCA 2003).
2 Camp Dresser, 853 So. 2d at 1072(emphasis in original).
3 Id. (emphasis supplied).4 Id. at 1083. Of course, summary
judgment on liability may be a longshot given that “questions pertaining to whether there was ‘potential liability’
often involvequestions of fact.” Id. at 1083-1084.
Author: Desiree D. Noisette,Hill Ward Henderson
TEEING UP A LOWER BURDEN OF PROOF FOR INDEMNITY CLAIMS Construction Law Section
Continued from page 22
ConstructionLaw Luncheon
Steve Marlowe of Marlowe McNabb, P.A.presented a Florida Legislative Update for theConstruction Law Section on September 15, 2011at the Chester H. Ferguson Law Center. Picturedare: Jason Quintero, Steve Marlowe and Tim Ford.
N O V 2 0 1 1 | H C B A L A W Y E R2 4
quickly as itflamed up.
We could have donesomething trulyunprecedented ona huge issue likethis one. Therecould have been a concerted effortto approach thejudiciary and askfor a consolidatedmotion hearing tostudy and reviewthe issue. None ofus were ever reallyon the same page.The time for ameaningful globaldialogue about a critical issue was missed.
Situationscalling for unity have come alongfrom time to time (i.e., jail accessissues, courthouse security policies,courtroom policies and procedures,etc). When they do, it is critical that criminal law practitioners work together with each other andwith the courts to propose globalsolutions that benefit us all.
This is the very purpose of theCriminal Law section of the HCBA. I urge all criminal practitioners to join the Criminal Law sectionand get involved. Together, we can find solutions that are in thebest interest of justice and ourcriminal courts.
Author: Joseph C. Bodiford,Bodiford Law, P.A.
CALL FOR UNITY IN THE CRIMINAL COURTS Criminal Law Section
Chairs: Mark P. Rankin, Shutts & Bowen, LLP, and Joseph C. Bodiford, Bodiford Law, P.A.
This is a call for unity. It’s time for all criminalpractitioners—prosecutors and defense
attorneys alike—to make everyeffort to work together for thebetterment of our criminal courts.We have recently seen why unityis so important.
In July, Florida witnessed ararity in criminal law: FederalDistrict Court Judge Mary Scrivenin Shelton v. Secretary, Departmentof Corrections found that Florida’sdrug possession law is faciallyunconstitutional. An analysis ofShelton is beyond the scope of thisarticle. However, suffice it to say,tens of thousands of drug cases all over Florida were potentiallyimpacted by this order.
Immediately, the criminal courtswere abuzz about this monumentalissue. There were questions as towhether Shelton was binding onthe circuit courts, whether theissue had already been addressedby Florida’s appellate courts, andhow our local judges would rule.There was an even more seriousquestion that went unaddressed:how to mount a coordinated attackon pending drug cases.
Before you couldsay don’t do it,defense attorneyswere filing motionsto dismiss beforethis judge andthat, thinking that because aFederal judge said the law wasunconstitutional,Tampa’s judgeswould simply fallin line.
But there hadbeen virtually no discussionamongst thecriminal law crowdabout analyzinghow to bestproceed as a groupfor the benefit ofall our clients.There were small throngs of uswho valiantly tried to pull everyonetogether via emails, listservs,phone calls, and text messages.Some participated (including theOffice of the Public Defender);some did not. It took weeks tofigure out which attorney had filedwhat motion before what judge.There was one big meeting severalweeks after the Shelton decision,attended by attorneys and judgesfrom all over the Bay area.
Sadly, it was too late; randommotions had already been filed anddenied. Ultimately, no Hillsboroughcounty judge has granted a motionto dismiss based on Shelton. We’repretty much done here locally, theissue having been snuffed out as
Together we can findsolutions that are
in the best interest of justice and ourcriminal courts.
Join your colleagues at the Criminal Law Section CLE Seminar on December 7, 2011.
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This is acause that is central tothe mission ofthe DiversityCommittee.Just as weshould bemindful ofdifferencesbased on raceor gender inour profession,we should
also be mindful of the physical and mental limitations that manyhave. In the HCBA, there are many attorneys with children and other family members withspecial needs, including those with Autism, Down’s Syndrome or a developmental disability. It is important that weacknowledge their work, sacrifice and unique love.
Therefore, with your help andcontinued fundraising efforts, our Bar will make great stridestowards improving the lives ofchildren with Autism in our
community.
Authors: Luis E. Viera, Ogden & Sullivan,P.A., and JorgeSanteiro Jr. (shown),Kubicki Draper
also for their families.While nobodyknows forcertain what causesAutism, wedo know that Autismcan causehelplessness,
isolation anddislocation. Manyparents feel helplessagainst a conditionthat they neveranticipated. Theautistic child mayexperience isolation,as such childrenoften sufferdisproportionatelyfrom bullying andridicule. The result is a sense ofdislocation for manyfamilies dealing withunprecedented challenges.
Numerous organizations,including many generous lawfirms, understand we all have astake in helping those with specialneeds and have come together toraise funds for this event. Groups as diverse as the Tampa FirefightersLocal 754, the Ferguson WhiteAmerican Inns of Court and theCenter for Special Needs TrustAdministration also have taken a stand for children with Autismspectrum disorders. In addition tothe Sensory Friendly Santa event,LAAF will fund grants for childrenwith Autism who need basicbehavioral, speech and occupationaltherapy but, due to inadequateinsurance, are unable to afford this.
We write this column as proudparents of young boys who havebeen diagnosed with Autism
LOCAL BAR TAKES STAND FOR CHILDREN WITH AUTISMDiversity Committee
Chairs: Luis E. Viera, Ogden & Sullivan, P.A., Victoria N. McCloskey, Ogden & Sullivan, P.A., Lisa M. Smith, 13th Judicial Circuit
This year, the DiversityCommittee is co-sponsoring an excitingevent that reaches out
to children with Autism. OnDecember 17, 2011, the LawyersAutism Awareness Foundation(LAAF) is holding a SensoryFriendly Santa event at theChester H. Ferguson Law Center.
Autism is a neurologicaldisorder characterized by impairedsocial communications, processingdeficits and other restrictive orrepetitive behavior. Autism isbelieved to affect 1 in 110children, including 1 in 70 boys.
Many children on the Autismspectrum suffer from SensoryProcessing Disorders. Because ofthis, many of these children andtheir families rarely leave theirhomes for family outings that we often take for granted. Eventslike going to church, the mall or a baseball game are often out ofreach for these families.
Therefore, at the SensoryFriendly Santa event, childrenwith Autism will enjoy a “sensoryfriendly” atmosphere allowingthem to participate in what somany children who celebrate the Christmas tradition take forgranted: Sitting on Santa’s lapand telling him what they want for Christmas.
As one can imagine, this is agift not only for the children, but
In the HCBA, there are many attorneys
with children and otherfamily members with
special needs, includingthose with Autism,
Down’s Syndrome or adevelopmental disability.
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against theborrower/homeowner who lost hisproperty to thecondemningauthority eventhough thatborrower hadevery intentionof continuing to pay down the balance ofthe mortgage.Shavers v. DuvalCounty, 73 So.2d684 (Fla. 1954)states that when a takinghappens, amortgagee must“look to themoney instead
of the real estate” but does notspeak to a deficiency against themortgagor, because in that case,the value of the property satisfiedthe mortgage.
Because the statutory andcommon law have not directlyaddressed this issue, determiningjust compensation for a homeownerin this situation remains unclear.Ultimately, a government agencyexercising Eminent Domain powers(especially one with a votingconstituency) needs to contemplateearnestly the ramifications ofleaving a taxpayer in its jurisdictionfacing a deficiency if the awardpaid to a property owner is lessthan what is owed to a mortgagee.
Author: Daniel R. Feinman, Esq.,Kass Shuler, P.A.
Many homeownerswho took outmortgages for thepurchase/refinancing
of homes during the housing boomnow find themselves in a tenuousposition: the balance of what isowed to the mortgagee is greaterthan the value of the home itself.Whether or not a homeownerdecides to walk away from ahouse that is “upside-down” is a decision many homeowners are faced with; a decision that a homeowner gets to make afterweighing all of the factors involved(can they procure a short sale, willthey face a deficiency judgment,etc.) But what if the homeownerisn’t able to make that decision?What if a condemning authoritydecides that such a homeowner’sproperty is needed for a publicpurpose and decides to exerciseits Eminent Domain power andtake that property?
Article X, Section 6 of theFlorida Constitution requires that“full compensation” be paid to anowner of property whose land istaken by a condemning authority.This provision seeks to ensure that the homeowner is fairlycompensated and is “made whole.”
JacksonvilleExpresswayAuthority v. HenryG. DuPree Co., 108So.2d 289 (Fla.1959). Practicallyspeaking, whenan EminentDomain case is settled atmediation ordecided by a jury,the compensationpaid to ahomeowner oftenboils down to abattle of expertappraisers.Section 73.091(1)of the FloridaStatutes allows for a landowner to hire an expertappraiser and calls for thecondemning authority to pay forthat appraiser’s services. Thecondemning authority generallyhires an independent appraiser to value the property as well.
Furthermore, in almost everymortgage there is what is knownas a Condemnation Clause whichallows the mortgagee to recoverany award paid to a borrower/homeowner for an Eminent Domaintaking up to the value of thebalance owed on the mortgage. If both appraisers assess the fairmarket value of a property and thatvalue is less than what is owedon the balance of the mortgage, a“taking” leaves the mortgagee withan award that is less than what isowed to them. The mortgagee maythen seek a deficiency judgment
TOTAL “TAKINGS” WHEN THERE IS AN UPSIDE-DOWN MORTGAGEEminent Domain Section
Chairs: Blake H. Gaylord, Gaylord Merlin Ludovici Diaz & Bain, and Daniel R. Feinman, Kass Shuler, P.A.
What happens when a "taking" leaves the
mortgagee with anaward that is less thanwhat is owed to them?
Save the Date – Eminent Domain CLE Luncheon – December 7, 2011
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feature
Continued on page 29
ttLEADERS:
WARREN HOPE DAWSON
“Warren Dawson is widely
recognized . . . as a leader
committed to the pursuit of
justice and equality for all.”
The career of Warren Hope Dawson proves thatperseverance can be an important quality of leadership. From Warren’s beginnings in the small Polk County town of Mulberry, to a student leader at Florida A & M, to hisleadership as a commissioned officer in the Army, tochampioning civil rights and furthering minorityrepresentation in the Florida Legislature, Warren haspersevered. Among Warren’s most impressive long termefforts was his 27-plus years as lead counsel in a schooldesegregation case; but we’re getting ahead.
Growing up in the era when racial segregation was the rule, Warren attended public schools in Polk County. He went on to be only the second black graduate of a Polk County
Warren Hope Dawson
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Warren was a commissioned officer in the United States Army,serving on active duty from 1961 to 1963. He demonstrated leadershipfirst as a platoon leader and later as a company commander. After theArmy came law school, and in 1966, a return to the Tampa area as alawyer for the National Labor Relations Board (NLRB). In 1967, Warrenbegan serving as an assistant city attorney for the city of Tampa—afirst for a black lawyer in the south.
In 1974, Warren began a 27 year journey as legal counsel in thecase Manning v. The School Board to ensure balanced integration in Hillsborough County public schools. In the early 1980’s, in a first degree murder case, State of Florida v. Nathaniel Sanders, hesuccessfully attacked the racially discriminatory process of selecting a grand jury foreman.
Continued from page 28
Warren Hope Dawson with James Ammons (center right),
President of Florida Agriculturaland Mechanical University
high school to become a lawyer.Before attending HowardUniversity Law School, Warrengraduated from Florida A & M.Besides his student leadershiprole there, he was a ROTCDistinguished Military Student,the Voice of “The Marching 100 Band,” and the leadspeaker on the varsity debatingteam (no surprise to those whohave litigated with Warren). Continued on page 30
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Continued from page 29
Beginning in 1980, Warren informallycommenced an effort to change how the local city and county officials were elected. In 1988, he formally intervened in a federal voting rightscase, Warren v. City of Tampa, and greatlyinfluenced the abolition of at-large elections of the Tampa City Council and the HillsboroughCounty Commission. In similar fashion, butwithout the necessity of a lawsuit, Warren also co-led the successful effort to persuade the FloridaLegislature to change from multi-district to singlemember districts, leading directly to greaterminority representation on the Council, theCommission, and in both houses of the FloridaLegislature. In the arena of community advocacy,he significantly contributed (without being amember) to the good decision of Ye Mystic Krewe Of Gasparilla to diversify its membership. Hemotivated the city as a whole to reject the idea ofdowntown Tampa hosting a for-profit attractionthat was to feature a ship previously used totransport African slaves. Over the years, Warren,
like most leaders, has shown real courage. He hasnever been afraid to speak up, including in thepresence of perceived power.
Warren’s broad legal career has also includedserving as President of the National BarAssociation, the Howard University National LawAlumni Association, and a cooperating attorneywith the NAACP Legal Defense & Education Fund,Inc. Ebony magazine recognized him as one of the“100 Most Influential Blacks In America.”
On the subject of deserved recognition, FloridaAgricultural and Mechanical University (FAMU)honored Warren Hope Dawson when it conferredupon him the Degree, Honorary Doctorate of Humane Letters at its recent SummerCommencement. That degree reiterated what thosefamiliar with Warren and his accomplishmentsalready knew: he is widely recognized as aleader—and in particular—as a leader committedto the pursuit of justice and equality for all.
Our former HCBA presidents speak of Warren’spositive impact. Terrell Sessums has know Warren
Continued on page 31
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Continued from page 30
for many years—since Terrell’s days in the Senate. He describes Warren as hard-working and energetic, active as a lawyer and in thecommunity, and well-deserving of the recent honor bestowed by FAMU.
William Reece Smith has served as president ofthe HCBA, the Florida Bar, and the American BarAssociation. Reece observes that, at times, Warrenhas been viewed as controversial, but his influenceon the legal community and community at largehas been positive. He has done many good thingsand is recognized as a lawyer who strives torepresent his clients well.
Past HCBA and Florida Bar President DavidShear says, “Warren has been a longtime colleagueand friend whom I have always admired. He hasbeen forthright and spoken with a clear voiceregarding his commitments to the community and to fairness and equality for all. It is a privilegefor me to be associated with him.”
James A. Hammond Elementary School innorthwest Hillsborough County is named after
James Hammond, who was born in Tampa, isretired from the military, and has been active in the community all life. Mr. Hammond has knownWarren since Warren came to Tampa. He describesWarren as courageous in dealing with seriousdiscriminatory issues that many might have shiedaway from, and creating positive changes in Tampa.He notes Warren came from a modest backgroundand pulled himself up by the bootstraps—eventhough he may not have had boots at the time. Heobserves Warren’s contributions to our communityare not limited to the legal arena, but includeassisting local kids.
That many of our younger members have notknown the type of discrimination that existed when Warren Dawson was growing up is due in
part to his leadership in our legalcommunity and our community asa whole. Both have benefitted fromhis perseverance.
Author: Raymond T. (Tom) Elligett, Jr., Buell & Elligett, P.A.
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f
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On November 17, 2011, the Hillsborough County BarAssociation is sponsoring its Fifteenth Annual Bench BarConference. Thetheme of this year’sconference, Partnersin Justice: MeetingOur Challenges,seeks to explore thenew changes andchallenges to thejudicial system andto the practice ofour profession aswe proceed throughthe second decadeof the new millennium. The Bench Bar Conference isdesigned to give lawyers and judges an opportunity to gettogether to share their thoughts, concerns and expectationscandidly, and to discuss ways to improve our judicialsystem, particularly this year in light of our economy, andthe use of media, social media and electronic information. Continued on page 36
Buell &
Elligett, P.A.
Plaintiffs’ Personal Injury and Wrongful Death u Eminent Domain
Civil Appeals u Insurance Coverage u Commercial Litigation
3003 W. Azeele Street, Suite 100, Tampa, FL 33609
(813) 874-2600 Fax (813) 874-1760 www.belawtampa.com
The theme of this year’s
conference, Partners in
Justice: Meeting Our Challenges, seeks to explore the
new changes and challenges to the judicial system and
to the practice of our profession as we proceed through
the second decade of the new millennium.
Collaboration between the bench and bar, fostering our shared commitment toimproving the administration of justice,enhancing the rule of law, and practicing
15thAnnual BenchBar Conference
feature
N O V 2 0 1 1 | H C B A L A W Y E R3 6
with professionalism (fairness, integrityand civility) are important goals that theHCBA promotes with this conference.
This year, for the second time, we arevery excited to offer a large variety ofbreakout sessions at the conference.Attendees can select their own “course”from a variety of offerings. Each courseincludes a qualified faculty and one ormore members of the judiciary.
In the morning, the breakout sessionswill focus on offering advice and counseldesigned for paralegals, legal assistants,legal administrators, judicial assistantsand attorneys who are fairly new topractice. From 8:30 A.M. to 11:30 A.M., the subject matters of the eight breakoutsessions will include e-filing in federal andstate courts, writing and managing email,cyber investigations, juror use of electroniccommunications, ethics, legal IT, andbasics of the Rules of Civil Procedure and basics of preparation for any courtappearances. We urge all attorneys andfirm administrators to encourage theirsupport staff and new lawyers to join usfor the morning breakout sessions.
Our regular HCBA Membershipluncheon is from 12:00 P.M. - 1:00 P.M.
In the afternoon, we are offering eightbreakout sessions for all practitioners.Judges and attorneys will offer insight intoa variety of practice areas, such as family
Continued from page 35 law, real property probate and trust law, worker’scompensation, bankruptcy and foreclosure, and appellatepractice. These sessions all promise to be timely andrelevant to your practice.
The closing plenary session features a panel to leaddiscussions about our profession as we appear to the publicin various media. The panel is comprised of Sue Carlton St. Pete Times), Warren Elly (formerly Fox 13), Hon. GeorgeGreer (6th Judicial Circuit, retired), John Fitzgibbons, Esq.,and Chief Jane Castor (Tampa Police Department). The panel will discuss our roles as partners in justice, thetensions between the media and the courts, the ethicalissues facing attorneys and judges in our relationship with the media, and the media’s influence on our jobs.Conference participants and judges will be seated togetherto discuss the issues raised by the panel. Be sure to comewith questions you would like to pose to panel membersbecause we will have time for questions from the audience.
This Conference’s goals seek to keep the channels ofcommunication open between the bench and bar, with its primary focus on improving the justice system for all.
Working together, we can make positivechanges in our court system. Please join us as we continue to strengthen the bondbetween the bench and bar and to preparethe system to best meet the coming externaland internal challenges to our profession. In the spirit of collaboration between thebench and bar, we invite you to join us at theJudicial Reception, which will immediatelyfollow the conference.
Authors: HCBA Bench/Bar Committee Co-chairs: The Hon. Emily A. Peacock and TheHon. Caroline J. Tesche, 13th Judicial Circuit
N O V 2 0 1 1 | H C B A L A W Y E R 3 7
Call 813-425-1518 to speak to Cody Davis or Jonathan Brozyna. Or visit CFDreferral.com
Referral fees paid in accordance with rule 4-1.5 of the Florida Bar Rules of Professional Conduct
Tampa, Florida
Jonathan Brozyna, Attorney Cody Davis, AttorneyDestiny Bradley, ParalegalNada Haddad, ParalegalAttorneyonathan Brozyna, J Attorney y DaCod Attorneyvis, y Da
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Diamondn The Yerrid Law Firm
Platinumn The Bank of Tampa
n Bricklemyer Smolker & Bolves, P.A.
n Community Bank
n Trial Consulting Services, Inc.
n Trial & Litigation Section
n Wagner, Vaughan & McLaughlin, P.A.
n Williams Schifino Mangione & Steady P.A.
Goldn Butler Pappas Weihmuller Katz Craig LLP
n Clark & Martino, P.A.
n DLA Piper LLP (US)
n Givens Law Group
n Hill Ward Henderson P.A.
n LexisNexis
n Mason Black & Caballero PA
n Mills Paskert Divers
n Shook, Hardy & Bacon L.L.P.
n Shumaker, Loop & Kendrick, LLP
Silvern Addison & Howard, P.A.
n Bush Ross, PA
n Carlton Fields
n Cole, Scott & Kissane, P.A.
n Danahy & Murray PA
n GrayRobinson, P.A.
n Harris and Hunt, P.A.
n John Boyer, Inc.
n Johnson Pope Bokor
Ruppel & Burns, LLP
n Kynes, Markman & Felman, P.A.
n Ogden Sullivan & O’Connor, PA
Bronzen Buell & Elligett
n Law Office of Robert J. Nader
n Rumberger, Kirk & Caldwell, P.A.
Thank you to our
Bench Bar Sponsors!
Support the Bench Bar – Become a Sponsor!Call 813-221-7779 or Email [email protected]
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Background andSite ChemicalConcentrations in Groundwater,FDEP, March 2009).The guidance,which remainsdraft, isparticularlyapplicable whensite constituents of concern (COC)are suspected ofbeing present atconcentrationsabove variouscriteria, includingnaturally occurringlevels orconcentrations thatare endemic to the geographic area
N O V 2 0 1 1 | H C B A L A W Y E R4 2
due to man-madeenrichment (termed“anthropogenicbackgroundconcentration”).However, theguidance is notwidely publicized and applied.
The FDEP’sproposed process toevaluate backgroundgroundwaterconcentrationscompared with siteconcentra tionsincludes thefollowing keyelements:
BACKGROUND CONCENTRATIONS IN GROUNDWATEREnvironmental and Land Use Section
Chairs: Douglas Grant, Golder & Associates, Inc., and Hugh H. Marthinsen, Saxon, Gilmore, Carraway & Gibbons, P.A.
I n March 2009, the Florida Department ofEnvironmental Protection(FDEP) published a draft
guidance document describingprocedures for comparingbackground concentrations ofgroundwater constituents to site chemical concentrations (Draft Guidance for Comparing
The guidance is not widely
publicized and applied.
Continued on page 43
Health Care LawLuncheon Members of the Health Care Law Section gathered for Gary Walker’s 2011
Regulatory Update on September 15th at the Chester H. Ferguson Law Center.
N O V 2 0 1 1 | H C B A L A W Y E R 4 3
BACKGROUND CONCENTRATIONS IN GROUNDWATEREnvironmental and Land Use Section
n Background samplinglocations should begeographically close to theinvestigation site but notwithin areas suspected to beimpacted by site activities or other specific activities,except for regionally-broadconditions.
n Monitoring wells used toestablish backgroundconditions should be locatedhydraulically up gradient or side gradient to theinvestigation site and the well screen intervals must be comparable with thosewells used to establish onsitegroundwater quality.
n Groundwater sampling is tobe conducted for the COCssuspected of being naturallyoccurring from threebackground groundwatermonitoring wells generally on a quarterly basis for a one-year period.
n The sampling protocols must match the FDEPstandard operating procedures or alternativeprocedures approved for the site investigation.
n General background studiespublished in the literaturecannot be used as the basis of comparison with siteconcentrations except toevaluate if site-specific data are within the range of observed values for theregion. In other words,published literature alone,without conducting a site-specific backgroundinvestigation, cannot be used to establish if certainCOCs are naturally occurringor are at anthropogenicbackground concentrations.
Data sets that meet theaforementioned conditions areevaluated using a “basic approach”or statistically. The basic approachdefines the upper end of the rangeof background concentrations as
Continued from page 42
SeniorCouncil Luncheon
the lower of either the maximumbackground concentration or twice the mean backgroundconcentration. Statistical methodsmay vary and certain methods aredescribed in the draft guidance.
Golder has applied the draftguidance for several projects; each is pending FDEP concurrence on the proposed backgroundconcretions. In one case, a COCmay be deleted from ongoingmonitoring at a manufacturingfacility and a site-specificbackground concentration for asecond COC may be used, whichwill result in the reduction in sizeof a contaminant plume, comparedto the contaminant plume sizebased on groundwater cleanuptarget levels listed in Chapter 62-777, FAC. In another case, thenewly established backgroundconcentrations for COCs may resultin the approval or conditionalapproval of mine reclamation.
Author: Douglas Grant, Golder & Associates, Inc.
Susan A. MacManus, Ph.D., DistinguishedProfessor of Public Administration andPolitical Science at USF, and renownedauthor and media analyst, was the featuredspeaker at the Senior Council SectionLuncheon on September 13, 2011. “TheCurrent Political Landscape” was the topicfor the event held at the Chester H. FergusonLaw Center.
Dr. MacManus (center) is pictured with Richard C. Woltmann and Judge Donald C. Evans, co-chairs of the Senior Council.
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chose not to pay thefee, believing theclaim was baseless.Instead, Flagstarpursued the caselong enough for thecourt to determinehow broadly thepatent claims wouldbe interpreted (theMarkman process).After construing the claims, thecourt agreed thatFlagstar didn’tinfringe. Flagstarthen moved forsanctions bothunder Rule 11 andas an exceptionalcase under thePatent Act. The trial court grantedthe motion and
awarded Flagstar more than$600,000 in legal fees. Now, in a somewhat scathing, but non-precedential opinion, the FederalCircuit has upheld that award.
againstdefendantsengaged in more traditionalcommerce. Inmost cases, theNPE offers tosettle early for alicensing fee thatis substantiallyless thanlitigation costs.Economically, it’s“a deal you can’trefuse,” and mostdefendants paythe fee, evenwhen they haveexcellent non-infringement and invalidityarguments.
Eon-Net, aclassic NPE, hadfiled over 100 lawsuits, almost all of which resulted in earlysettlements. The license fee,calculated to be far lower than thecost of litigation, was typically$25,000-$100,000. Unlike Eon-Net’sother targets, however, Flagstar
NEW DECISION GIVES HOPE TO PATENT TROLL DEFENDANTSIntellectual Property Section
Woodrow H. Pollack, GrayRobinson, P.A., and Dineen P. Wasylik, Conwell & Kirkpatrick, P.A.
I n what may signal a turningof the tide of troll litigation,the Federal Circuit recentlyupheld an order awarding
more than $600,000 in legal feesto the defendant in a patentinfringement suit. Eon-Net, L.P. v. Flagstar Bancorp, Fed. Cir. No.2009-1308 (July 29, 2011). “Troll”is a euphemism for a companywhose only business is filinginfringement suits. The more politeterm is “non-practicing entities”(“NPEs”), because they do notpractice their intellectual property(“IP”) themselves by offeringgoods or services. Instead, theirsole business is to obtain IP rights(usually patents), and then file, orthreaten to file, infringement claims Continued on page 45
The Federal Circuitdecision highlights
useful strategies fordefendants who feel
they are beingunjustly targeted in troll litigation.
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NEW DECISION GIVESHOPE TO PATENTTROLL DEFENDANTS
The Federal Circuit agreed boththat this was an exceptional caseand that Eon-Net had violated Rule11. The court’s reasoning largelyfocused on two issues: Eon-Net’stactics (including arguing for anunreasonable claim interpretation,destroying documents, and notparticipating in the Markmanprocess in good faith), and itsfailure to investigate Flagstar andproperly compare the accusedproduct to the patent claims priorto filing. In particular, the courtcited Eon-Net’s failure to do anobjective comparison of reasonablyconstrued claims against Flagstar’ssystem before filing. The court wenton to discuss the unfair advantageNPEs have during litigation,especially in discovery. While adefendant might have to producemillions of pages of documentsrelating to its sales and operations,the NPE has very little to producebecause it does not sell anything.All of these factors weighedsignificantly in Flagstar’s favor.
It’s too soon to say whether Eon-Net signals court attitudestoward NPE litigation are changing,but it does provide some hope fortheir targets. More importantly, theFederal Circuit decision highlightsuseful strategies for defendantswho feel they are being unjustlytargeted in troll litigation, includingdemanding that the NPE disclosethe details of its pre-filinginvestigation, and arguing forlimiting discovery to claim
construction issuesprior to the court’sMarkman order.
Author: William (Ty) Giltinan,Carlton Fields
Continued from page 44
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NLRB REQUIRES ALL EMPLOYERS TO POST A NOTICE OF EMPLOYEE RIGHTSLabor & Employment Section
Chairs: Tammie L. Rattray, Ford & Harrison LLP, and Scott T. Silverman, Akerman Senterfitt
On August 25, 2011, the National LaborRelations Board (the“NLRB”) issued a
final rule requiring employerssubject to the National LaborRelations Act (the “NLRA”), whichis the overwhelming majority ofbusinesses, to post a notice thatinforms employees of rights underthe NLRA, together with NLRBcontact information and basicenforcement procedure information.
Employers, both union and non-union, must begin posting the notice on November 14, 2011.Federal contractors will be deemedto have complied with this duty by posting the notice of employeeNLRA rights that is already requiredby the Department of Labor.
The notice must be posted in all places where notices toemployees concerning personnelrules or policies are customarilyposted. All employers who postnotices to employees on aninternet or intranet site must alsopost the NLRB’s notice on thosesites. Copies of the notice will beavailable on the NLRB website and from NLRB regional offices byNovember 1. Translated versionsalso will be available and must beposted in another language where
and 7. spy on orvideotape peacefulunion activities.
Finally, thenotice informsemployees that, if they select a union, theemployer andunion mustbargain in good faith, thatemployees have six months to bring a charge to the NLRB, andthat employeesmay obtainreinstatement andlost wages andbenefits for unfairlabor practices.
The rule statesthat a failure topost is an unfairlabor practice andthat, upon a failure
to post, the NLRB may order theemployer to post a notice and/orremedial notice, toll the statute of limitations for unfair laborpractice charges, and considerknowing and willful failure asevidence of unlawful motive.However, the NLRB may notimpose a fine.
It is time for employers to plan their response to employeeinquiries that this notice willinstigate. Employers must beprepared to provide accurate,lawful answers to employeequestions about their NLRA rights.
Author: Scott T. Silverman,Akerman Senterfitt
at least 20% ofemployees arenot proficient in English andspeak the otherlanguage.
Even non-union employeeshave rights under the NLRA.Accordingly, the notice tellsemployees thatthey have the right to: 1. organize aunion; 2. form,join or assist aunion; 3. bargaincollectively ; 4. discuss terms and conditions of employment orunion organizing; 5. take actionwith one or moreco-workers to improve working conditions; 6. strike and picket; and 7. not doany of these things.
In addition, the notice statesthat it is illegal for an employer to: 1. prohibit employees fromsoliciting for a union during non-work time and from distributingunion literature during non-worktime in non-work areas; 2. questionemployees about union activities;3. take or threaten adverse actionagainst employees based on unionactivity; 4. threaten to close theworkplace if workers choose aunion; 5. promise or grant benefitsto discourage union support; 6. prohibit union paraphernaliaexcept in special circumstances;
Employers, bothunion and non-union,must begin posting
the notice onNovember 14, 2011.
Save the Date – Labor & Employment Section Luncheon – December 6, 2011
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fact that amarried couple’stax bracketchanges becausethey can filejointly, aheterosexualmarried couplewith a child isentitled to claiman earnedincome creditpursuant to 26 U.S.C. §32,establish a headof householdpursuant to 26 U.S.C. §2, therebyincreasing thecouple’s standard
general legaland economicsense. In thesecond part ofthis article, wewill exploresome of thechanges thatwouldnecessarilyfollow thelegalization of same-sexmarriage.
Perhaps the first benefitsthat come to mind forfinancial-mindedpractitioners arethose related to taxes. Asidefrom the obvious
T he state of Florida doesnot recognize same-sexmarriage.1 However, withthe recent changes in
New York’s state laws on same-sexmarriage, it is possible that Floridacould follow suit. Thus, it is worthconsidering what this changemight mean to the family lawcommunity. This article is a two-part discussion. In this first part,we will discuss some aspects ofwhat it means to be married in a
SAME-SEX MARRIAGE IN FLORIDA: PART IMarital and Family Law SectionChair: Christine L. Derr, Law Office of Christine L. Derr, P.A.
All too often, family lawattorneys lose sight of the many benefitsthat inure to married
couples solely by virtueof the fact that they aremarried, without more. Continued on
page 49
HCBA LawyerReferral & InformationServiceHCBA’s Lawyer Referral & InformationService handles more than 14,000 calls a year. With over 140 attorney members,averaging 10 years of legal experience inover 90 areas of law, the LRIS is ready andable to serve you and your clients. Pleaserefer your clients to the Hillsborough CountyBar Association LRIS when the case involvesan area of law you do not practice.
Contact Cathy Fitch, LRIS Director at (813) 221-7783 for more information.
N O V 2 0 1 1 | H C B A L A W Y E R 4 9
SAME-SEX MARRIAGE IN FLORIDA: PART IMarital and Family Law Section
deduction, and claim a child taxcredit pursuant to 26 U.S.C. §32.2
Further, a married couple cantransfer property from one spouseto the other without any taxconsequence, including after oneof the parties has passed away,pursuant to 26 U.S.C. §1041 and 26 U.S.C. §2056.
Perhaps most importantly, beingmarried creates a world of rights inthe estate and family law domains.Under Florida law, if one spousedies intestate, the survivingspouse receives the deceasedspouse’s entire estate if there areno children.3 Often overlooked andperhaps taken for granted by mostmarried couples is the fact that amarried couple in Florida has therights outlined in Chapter 61 of theFlorida Statutes. This means thatspouses without taking any actionother than getting married, have a statutory claim to all propertyacquired during the marriage,including arguably increases invalue of non-marital property, andto support for themselves and their
children. Further, only a spouse,former spouse or child can go aftercreditor-exempt qualified retirementassets by obtaining a QualifiedDomestic Relations Order, whichare often extremely valuable.4
Private companies alsoincentivize their employees andcustomers with benefits for spousesand married couples. Employersthat provide health, dental, vision,life, and/or car insurance, oftengive this benefit to the employee’sspouse at a reduced premiumrelative to policies for individuals.Further, employers can providehealth insurance to an employee’sspouse without any negative taxconsequences to any party.5
The list goes on, and for lack ofspace, we have barely scratchedthe surface. All too often, familylaw attorneys lose sight of themany benefits that inure to marriedcouples solely by virtue of the factthat they are married, withoutmore. Same-sex couples locked out of marriage are not only lockedout of the social institution, butalso a world of legal and economicbenefits and safeguards.
1 Even prior to the enactment ofthe laws presently in effect, Floridahad placed a statutory ban on same-sex marriage.
2 These tax laws are not applied in the same manner to same-sexmarried couples, who are providedwith far less of a tax advantage fornon-biological and adopted children.Further, because of the Defense ofMarriage Act, same-sex marriedcouples are not considered marriedpursuant to most federal laws.
3 See Fla. Stat. § 732.102 (2010).4 See ERISA § 206 (2010).5 Employer-provided health
benefits provided to a same-sexpartner or spouseare taxable asincome to theemployee.
Authors: O. Kim Byrd, Esq.,The Givens Law Group and Matthew L.Lundy, Esq., Older,Lundy & Weisman
Continued from page 48
The borrower,borrower’sattorney, if any,and lender’sattorney mustattend mediationin person. Theplaintiff’srepresentativemay appeartelephonically.The ProgramManager “takesroll” before the mediation to ensurecompliance,including thatthe plaintiff’srepresentativehas fullsettlementauthority and, in a substantialdeparture fromthe normalmediationconfidentiality
provisions, is directed to report anynonappearance to the court.Typically, mediation lasts about twohours for the initial conference, plusan additional session, if needed.
Mediators are selected by blindrotation, unless the parties select
familiarizethemselves with bothadministrativeorders, includingthe exhibits toAOSC09-54.
Under theadministrativeorders, all partiesto a mortgageforeclosureinvolvinghomestead realproperty aredeemed to havestipulated tomandatorymediation unlessopted out inwriting. The costof the mediationand mandatoryforeclosurecounseling is$750, paid by the plaintiff andadded to anyeventual judgment.
Both plaintiff and borrower mustexchange financial information and documentation prior to themediation. Borrower’s counselshould make sure that theappropriate documents arerequested and that they areproduced prior to the mediation.
PARTICIPATING IN THE FORECLOSURE MEDIATION PROGRAMMediation and Arbitration Section
Chairs: Louise B. Fields, Louise B. Fields, LLC, and Gayle B. Carlson, Gayle B. Carlson, P.A.
Elsewhere in this editionof the Lawyer is theHillsborough County Bar Foundation’s
article updating and offering tipsabout the Thirteenth Circuit’sResidential Mortgage ForeclosureMediation Program (“RMFMP”).This article provides someguidance to those representinghomeowners in the RMFMP,particularly first-time participants.
Responding to what it called themortgage foreclosure “crisis,” theFlorida Supreme Court issuedAdministrative Order AOSC09-54on December 28, 2009, requiringeach circuit to establish amandatory mediation program forresidential mortgage foreclosures.Administrative Order S-2011-010,signed by Judge Menendez onFebruary 24, 2011, established theThirteenth Circuit’s program,appointing the Foundation as theProgram Manager. Counsel should
Under [MEAC opinion2010-008] any
mediator previouslyadverse to a party
has a non-waivableconflict and may
not serve.
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Continued on page 51
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PARTICIPATING IN THE FORECLOSURE MEDIATION PROGRAMMediation and Arbitration Section
Continued from page 50
a mediator. As circuit civilmediators are no longer required to be lawyers, it is not unusual forthere to be a non-lawyer mediator.The issues can be complex,including issues involvingmortgage securitization andvarious government assistanceprograms. Although participatingmediators must attend a one-daytraining seminar, don’t assume thatthe mediator will have experiencein mortgage law, let alone realestate law or even the lawgenerally, beyond that seminar.
Although the parties are able to select a mediator if they wish,an ethics opinion (MEAC 2010-008) presents difficulties. Under it,any mediator previously adverse to a party has a non-waivableconflict and may not serve. As aresult, mediators with foreclosureexperience are conflicted out from participating in mediationsinvolving financial institutions that the mediator/attorney hasbeen adverse to in the past, even if that conflict was unrelated toforeclosure. Therefore, the moremortgage foreclosure experience a mediator/attorney has, the morelikely he/she will be unable toserve as a mediator in a mortgageforeclosure mediation.
On September 26, 2011, theSupreme Court announced that,after collecting a year’s worth of data on the statewide program, it was requesting public comment
on the program’ssuccess. Stay tuned!
Author: LynwoodF. Arnold, Jr.,
Lynwood F. Arnold, Jr.
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The HCBA welcomed the new LeadershipInstitute class at an orientation session onSeptember 7, 2011 at the Chester H. Ferguson LawCenter. The Institute identifies and develops youngattorneys of diverse backgrounds who have thepotential to become future leaders of the HCBA. This year, the Institute will be led by Chair RobinHorton of the Second District Court of Appeal and the executive committee comprised of DannyAlvarez of The Alvarez Law Group, Casey Reeder of Hill Ward Henderson, and Michael Stein of Haas,Lewis, DiFiore & Amos, P.A.
From left to right: Casey Reeder, Michael Kangas, Matthew Kindel, Cynthia Winter and Jonathan Gilbert.
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an objection thatthe personalrepresentative was never qualifiedto serve, if theobjection is nottimely filed, exceptwhere fraud,misrepresentationor misconduct with regard to thequalifications is not apparent on theface of the petitionor discoveredwithin the statutorytime frame.
The SupremeCourt stated in its opinion that it was significantthat nothing wasconcealed ormisrepresented
(as apparently occurred in Angelus)and that Hill knew at the beginningof the administration that Daviswas the son of the decedent’s latehusband. Therefore, Hill had noexcuse for not objecting within the required time frame.
This case highlights theimportance for an estatebeneficiary to seek counselregarding the qualifications of the personal representative withinthe three-month objection period.Otherwise, a later objection orremoval action may be barred.
1 One of the exceptions underSection 733.304 allowing a nonresident
to serve is where the person is a linealdescendant of thedecedent’s spouse.
Author: Matthew J. Zipay,Fowler White Boggs
Davis’ qualifications to serve as anonresident personalrepresentative. Hill’smotion contendedthat Davis wasunqualified to serve as anonresident personalrepresentative. Hillalleged that thedecedent’s husbandwas not thedecedent’s spouseat the time of herdeath because hehad predeceasedher and, therefore,Davis was not alineal descendant of the decedent’sspouse for purposesof section 733.304.
The probate courtfound that Davis was qualified toserve as a nonresident personalrepresentative and that Hill’sobjection was barred because itwas not filed within the statutorythree-month time frame. Onappeal, the First District affirmedthe probate court on the groundsthat Hill’s objection was barred by the statutory three-month timelimit in section 733.212(3). The First District did not address theissue of whether Davis was actuallyqualified to serve. The First Districtthen certified conflict with theThird District’s decision in Angelusv. Pass, 868 So.2d 571 (Fla. 3d DCA2004) which held that there was no time limit when the personalrepresentative was never legallyqualified to serve as personalrepresentative at any time.
The Florida Supreme Court heldthat Section 733.212(3) bars anobjection to the qualifications of apersonal representative, including
A REVIEW OF HILL V. DAVISReal Property Probate & Trust Section
Co-chairs: Eric E. Page, Hill Ward Henderson, and Jordan G. Lee, Shutts & Bowen, LLP
Aperson who is notdomiciled in Florida is not permitted toserve as personal
representative of a Florida estateunless the person meets one of thespecifically defined relationshipsto the decedent set forth in section733.304, Florida Statutes. Also,Section 733.212(3), Florida Statutes,provides that an interested personmust object to the qualifications of a personal representative withinthree months after service of thenotice of administration.
In Hill v. Davis, 36 Fla. L.Weekly S487a (Fla. Sept. 1, 2011)the Florida Supreme Courtaddressed the question of whetheran objection to the qualificationsof a personal representative isbarred by the three-month filingdeadline, even when the personalrepresentative was never qualifiedto serve.
The decedent, Katherine Davis,died in 2007 in Florida. Thedecedent’s stepson, Douglas Davis, a resident of New York, was nominated as personalrepresentative in the decedent’swill.1 After his appointment by the court, Davis served a copy ofthe notice of administration onSolveig Edna Hill, the decedent’smother. Almost a year later, andafter filing several motionschallenging the validity of the will,Hill filed a motion challenging
733.212(3) providesa 3-month filing
deadline to objectto the qualifications
of a personalrepresentative.
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DISABILITY INCOME INSURANCE: WHAT EVERY ATTORNEY NEEDS TO KNOWSolo/Small Firm Practitioner Section
Chairs: James A. Schmidt, James A. Schmidt, P.A., and S.M. David Stamps, III, S.M. David Stamps, III, P.A.
W ould you ever show up in thecourtroom—or at a client meeting—
without properly preparing your case or researching yourclient’s situation?
Of course not. In fact, for mostlawyers, the idea of being poorlyprepared at a crucial moment isthe stuff of nightmares.
Perhaps youbelieve thatyou’re fullycovered by agroup policy your firm haspurchased.However, thetruth is thatwhile groupdisability incomeinsurance is often relativelyinexpensive and easy toadminister, it canalso fall short justwhen you need it most—leavingyou unpreparedand in for someunpleasant
surprises whenit’s too late tocorrect thesituation.
Learning tospeak the lingo
The rightdisability incomeinsurance (DI)policy can helpyou keep yourhousehold going,even if you suffer a long-term disability.The followingterms are part of the language
The truth is, successfulprofessionals need far more complete DI coverage than is
provided through theirfirm’s group policy.
Continued onpage 57
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DISABILITY INCOME INSURANCE: WHAT EVERY ATTORNEY NEEDS TO KNOWSolo/Small Firm Practitioner Section
Continued from page 56
describing high-quality policiesand are what you should look for to get coverage you can count on:
n “Own-occupation”: Own-occupation or “Own-occ”coverage defines “totallydisabled”—and thereforeeligible for benefits—as being unable due to injury or sickness to perform thematerial and substantialduties of your own occupationeven if you are at work inanother capacity. As a highlyskilled professional who hasinvested so much in educationand training, you want tomake sure you have genuineown-occupation coverage so that, even if you can teach,for example, in your field—but cannot practice law—youare still eligible for benefits.Group coverage is rarely trueown-occupation coverage.
n Non-cancellable: To avoid the possibility of losing yourcoverage just when you needit most, choose a policy that’s non-cancellable andguaranteed renewable to age 65—with premiums alsoguaranteed until age 65. Withgroup coverage, you run therisk of being dropped and leftunprotected at a time in yourlife when, due to your age orto a change in your health, it would be very difficult toqualify for coverage fromanother provider.
n Residual Disability coverage:Through a rider, a goodindividual DI policy canprovide you with protectionagainst the income loss youmay suffer as a result ofpartial (residual) disability—even if you have neversuffered a period of totaldisability. This kind ofresidual coverage is not
available with most group plans.
n A choice of “riders”: Ridersoffer optional additionalcoverage such as FutureIncrease Options and Cost of Living Adjustments, or “COLA.”
Take the time to considerupgrading your DI coverage today.Having the right DI coverage could be vitally important to youreconomic wellbeing in the future—and help protect one of your mostvaluable assets: the ability to earnan income by practicing law.
The truth is, successfulprofessionals need far morecomplete DI coverage than is
provided throughtheir firm’s grouppolicy.
Author: Jeffrey D. Brown,Guardian Life/Berkshire Life
To volunteer for Ask A Lawyer programs, please contact Cathy Fitch at 813-221-7783 or [email protected]
THANK YOU ASK-A-LAWYER VOLUNTEERS
n Dale Appelln Tom Hyden Dina Sheridan Busciglion Anissa Morrisn Hernando Bernaln Brent Rosen Denny Morgensternn Betsey Herd
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CLARIFICATION OF ECONOMIC SUBSTANCE DOCTRINE, PART 2Tax Law Section
Chairs: Justin J. Klatsky, Owens Law Group, P.A., and V. Jean Owens, Owens Law Group, P.A.
The background of theEconomic Substancedoctrine in the last issuebrings us to a recent Tax
Court opinion issued by Judge JoeGoeke in Historic Boardwalk Hall,LLC New Jersey Sports and Expo -sition Authority, Tax Matters Partnerv. Commissioner and found at 136TC No.1 dated January 3, 2011.
The facts involve HistoricBoardwalk Hall, LLC (Hall), NewJersey Sports and ExpositionAuthority (NJSEA), and PitneyBowes (PB). The formation was to allow PB, a private party, toearn historic rehabilitation creditsfrom the rehabilitation of agovernmentally owned building,East Hall.
Among the financial projectionsforming the basis for PB’s capitalcontribution of over $18 millionwas that revenue would increase3% per year. PB received 99.9%ownership interest and NJSEA theremaining 0.1%.
The Internal Revenue Servicechallenged the transaction onseveral fronts, including economysubstance and sham transaction.
The Service reallocated item ofincome or loss from PB to NJSEAand determined that PB had nomeaningful stake in the success orfailure of Hall and that Hall shouldbe disregarded.
The Tax Court cited a ThirdCircuit opinion in analyzing
whether atransaction has economicsubstance bydeterminingwhether it hadan objectiveeconomicsubstance and a subjectivebusinessmotivation.
In discussionof the role of the3% return andthe expected taxcredits, the Courtdetermined thatthey should beviewed together.As so viewed,the transactiondid have economic substance.Even ignoring the tax credits, thecourt opined that PB’s interest wasmore like equity than debt becauseit was not guaranteed a 3% return.
The court cited with approval a circuit court opinion to the effect that a transaction does notbecome a sham merely because it is likely to become unprofitableon a pre-tax basis. Further it raisedan anticipated future factor of the role of Congress’ intent tocreate tax benefits and incentivesfor the purpose of changinginvestor conduct.
The Court indicated that theabsence of pre-tax profitabilitydoes not show whether thetransaction had economicsubstance beyond the creation of tax benefits where Congress has purposely used tax incentive is to change investor’s conduct.
This case did not address section7701 (o) of the Internal RevenueCode. It was tried before enactmentof Section 7701 (o), which became
effective March 21,2010. However, tothe extent that the Service’sinterpretation ofSection 7701 (o) is dependent onrelevant case lawunder common-laweconomic substancedoctrine, the case is most relevant.
The realquestion is: what is the role of congressionallycreated taxincentives (such as rehabilitationcredits) that are utilized in atransaction where
there are no other discernableeconomic incentives? While the TaxCourt didn’t precisely address thissituation, its reliance on the“viewed together” language impliesthat neither the credits, nor the 3%,standing alone, would pass. Thereseems to be a good argument thatcredits and other tax incentives areneeded for the investor to invest;otherwise there would be no needfor them if there was sufficient non-tax economic incentives.
Perhaps a transaction can changean investor’s economic position (in a meaningful way) and have asubstantial non-tax purpose, yetwould not attract investors withoutthe tax incentives. In a sense, the “viewed together” conceptavoids “splitting the baby” withindependent quantitative proof ofthe role of each incentive. Hopefully,taxpayers will not be required tomake such a quantitative analysis.
Author: V. Jean Owens, Owens Law Group, P.A.
What does “viewedtogether” mean in ascertaining
economic substance?
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D’AMARIO COMES CRASHING DOWNTrial & Litigation SectionChair: J. Daniel Clark, Clark & Martino, P.A.
E ffective June 23, 2011,the Legislature amendedFlorida’s comparativefault statute to include
the following provision for productliability actions:
“(3) Apportionment ofdamages. – In a negligenceaction, the court shall enterjudgment against each party liable on the basis of such party’spercentage of fault and not on thebasis of the doctrine of joint andseveral liability…
(b) In a products liability actionalleging that injuries received by a claimant in an accident wereenhanced by a defective product,the trier of fact shall consider thefault of all persons who contributedto the accident when apportioningfault between or among them. The jury shall be appropriatelyinstructed by the trial judge on the apportionment of fault…wherethere are allegations that theinjuries …were enhanced by adefective product….” §768.81(3)(b),Fla. Stat. (2011).
A products liability action is “acivil action based upon a theory ofstrict liability, negligence, breachof warranty, nuisance, or similartheories for damages caused bythe manufacture, construction,design, formulation, installation,
preparation, orassembly of aproduct. The termincludes anaction allegingthat injuries…were greaterthan…theclaimant wouldhave received but for a defectiveproduct….”§768.81(1)(d), Fla. Stat. (2011).
Theamendmenteffectivelyoverrules theFlorida SupremeCourt’s decisionin D’Amario v.Ford Motor Co.,806 So. 2d 424(Fla. 2001) and changescrashworthinesslitigation inFlorida. The “crashworthinessdoctrine” imposes liability onautomobile manufacturers fordefects that enhance injuries. See D’Amario, 806 So. 2d at 433(citing Jimenez v. Chrysler Corp.,74 F. Supp. 2d 548, 565 (D.S.C.1999)). It applies if a defect, notcausally connected to an initialcollision, results in injuries greaterthan those that would haveresulted from the collision absentthe defect. Id.
In D’Amario, for example, anintoxicated driver collided with atree. His injured passenger suedFord, claiming his injuries resultedfrom a fuel tank system defect andthat, but for the defect, he wouldnot have been injured. D’Amario
followed theminority view andheld that principlesof comparative fault involvingcauses of the firstcollision generallydo not apply incrashworthinesscases. SeeD’Amario, 806 So.2d at 441. As aresult, Ford was notentitled to includethe intoxicateddriver as a Fabredefendant orintroduce evidenceof his negligence.
In amendingsection 768.81,however, theLegislatureexpressly statedthat it “intends that this act beapplied retroactively
and overrule D’Amario … Thatminority view fails to apportionfault for damages consistent withFlorida’s statutory comparativefault system, codified in §768.81,Florida Statutes, and leads toinequitable and unfair results,regardless of the damages soughtin the litigation. The Legislaturefinds that, in a products liabilityaction as defined in this act, fault should be apportioned among
all responsiblepersons.” Ch.2011-215, §2, Laws of Fla.
Author: Jaret J. Fuente,Carlton Fields
The amendmenteffectively overrulesthe Florida Supreme
Court’s decision in D’Amario . . . and changes
crashworthinesslitigation in Florida.
Save the Date — Barry Richard — “Liberty v. Security” — February 22, 2012
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ILLEGAL ALIENS: EMPLOYERS HIRE THEM, THEY BUY THEMWorkers’ Compensation Section
Chairs: Anthony V. Cortese, Anthony V. Cortese, Attorney at Law and Michael G. Rabinowitz, Banker Lopez Gassler P.A.
We all know that it isunconstitutional todeny death benefitsto the beneficiaries
of “aliens not residents (or about to become nonresidents) of theUnited States or Canada.” TheFlorida Supreme Court declaredsection 440.16(7) of the FloridaStatutes unconstitutional. See DeAyala v. Florida Farm Bureau, 543So.2d 204 (Fla. 1989). It wouldtherefore seem that all other legalobstacles to illegal aliens receivingworkers’ compensation benefitswould also fail.
There is a double edged swordof employers hiring illegal aliensand then denying them workers’compensation benefits based ontheir immigration status. If anemployer declares an injuredworker is an illegal alien, thequestion is: how did thatindividual get on your job site? If an employer is paying an illegal alien under the table, then the employer exposes itself to civil liability with the InternalRevenue Service and possiblecriminal liability for hiding payroll
information froma carrier [see§ 440.105(4)(b)(6),Fla. Stat.]. Withall of the case lawsupportingbenefits for aliens,it seems like afutile position foremployers to take.
Of course, theFirst District Courtof Appeal hasdone its part to impart thatwisdom ontoemployer/carriers.From orderingmedical benefitsto deportedinjured workers to finding thatproviding a falsesocial securitynumber at thetime of hire is not a form ofmisrepresentation,the Court supports the holding inthe De Ayala decision. Now, wehave another case to drive thepoint home.
Recently, in HDV Construction v. Aragon, 66 So.3d 331 (Fla. 1stDCA 2011), an employer fought apermanent total disability claim on the grounds that the claimantwas an illegal alien. The claimant,relying on proper case law, provedto the judge that the employerknew all along that he was anillegal alien and therefore the
employer couldnot denybenefits basedon immigrationstatus.
There isstrong languagein this opinionthat states that despite a claimant’sillegal status,Florida industrycannot pass itsresponsibility toinjured workersonto society ortaxpayers as awhole. This is the coreprinciple of theFlorida Workers’Compensationstatute. It isimportant foremployers tounderstand thattactics like
asserting an illegal alien’s averageweekly wage of $0.00 because thealien did not declare any earningsto the IRS and asserting fraud foran employee providing a falsesocial security number areprobably not going to work.
When an employer hires illegalaliens, it’s as if it is hiring legalones. If those illegals are injured,then the employer buys them.
Author: Michael G. Rabinowitz,Banker Lopez Gassler P.A.
There is a doubleedged sword of
employers hiringillegal aliens and thendenying them workers’compensation benefits
based on theirimmigration status.
HCBA MEMBERS: Send HCBA your business updates.
Email [email protected] or call 813-221-7779.
N O V 2 0 1 1 | H C B A L A W Y E R 6 1
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AROUND THE ASSOCIATION
Jennifer G. Roeper, ashareholder with the law firm of Fowler White Boggs, wasrecently selected for LeadershipTampa Class of 2012, a leadershipprogram of the Greater TampaChamber of Commerce.
Mason Black & Caballero PA ispleased to announce that JenniferA. Ficarrotta recently joined thefirm as an associate.
Circuit Judge Gregory Holderhas been named chairperson of theFlorida Committee for EmployerSupport of the Guard and Reserves,a volunteer organization within theDepartment of Defense. Theappointment was made by ActingAssistant Secretary of Defense forReserve Affairs, David L. McGinnis.
Jourdan Haynes, an associatewith the law firm of Fowler White Boggs, was recentlyselected to participate in the TampaConnection Class of 2011-2012.
Karen M. Buesing, shareholderwith the Akerman SenterfittLabor & Employment PracticeGroup, has been elected as a fellowof the College of Labor andEmployment Lawyers.
GrayRobinson shareholder Kim H. Vance has recently beenreappointed to the Tampa BayRegional Planning Council byFlorida Governor Rick Scott for aterm ending in October 2012.
Clark & Martino is proud toannounce that partner and presidentAnthony T. Martino has beenelected by the Second District Courtof Appeal Judicial NominatingCommission to serve as itsChairman for the coming year.
Ford & Harrison LLP, a nationallabor and employment law firm, ispleased to announce that Shane T. Muñoz has been elected CLEDirector of The Florida Bar’s Labor& Employment Section.
Shumaker, Loop & Kendrick,LLP is pleased to announce thatpartner Gregory C. Yadley hasbeen elected Chair of the MiddleMarket and Small BusinessCommittee of the American BarAssociation Business Law Section.
Thirteenth Judicial CircuitJudge Ron Ficarrotta wasformally sworn-in as Chair of theFlorida Conference of Circuit Judgesby Florida Supreme Court ChiefJustice Charles Canady after beingunanimously elected by his peers atthe Annual Education and BusinessConference held in Marco Island.
Nava Ben-Avraham has joinedBurr & Forman LLP as anassociate in the Central Floridaoffice. She focuses her practice on financial services litigation and has additional experience inbankruptcy litigation and productliability defense.
Christopher Paradies, Ph.D., a shareholder in the law firm ofFowler White Boggs, has beenappointed Chair of the AppliedMedicine and Human Performancesector for the Tampa Bay RegionalBusiness Plan and to the Tampa BayPartnership’s Executive Committee.
Thompson, Sizemore, Gonzalez & Hearing P.A. is proud to announce that shareholderGregory A. Hearing has beenappointed Chair of the Labor & Employment Section of TheFlorida Bar.
Vivian Arenas-Battles of de la Parte & Gilbert, P.A. has beennamed Chair of The Florida Bar’sEminent Domain Committee. Vivianis a shareholder with the firm andpractices in the areas of eminentdomain, environmental andadministrative law.
Ford & Harrison LLP, anational labor and employment law firm, is pleased to announcethat Dawn Siler-Nixon, Diversity& Inclusion Partner, has recentlybeen appointed as the AmericanBar Association AIDS CoordinatingCommittee Chair.
Carlton Fields is pleased toannounce that Tampa shareholderGeorge Meyer was appointed chairof The Florida Bar’s Real Property,Probate and Trust Law Section.
The law firm of Trenam Kemkeris pleased to announce that Ian C.Larson has joined the firm as anassociate. Ian will practice in thearea of business transactions.
HCBA Intellectual PropertySection Co-chair Woodrow H.“Woody” Pollack was recentlypromoted to of counsel atGrayRobinson.
Joshua Smith, a shareholderwith the law firm of Fowler WhiteBoggs, was selected for LeadershipTampa Bay, Class of 2012.
Clinton Paris JD ‘00, MBA ‘00 is the new Stetson LawyersAssociation president.
Attorney Patrick Poff of TrenamKemker Scharf Barkin FryeO'Neill & Mullis, P.A. has beencertified by The Florida Bar in the area of Construction Law.
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JURY TRIAL INFORMATION
For The Month of: March 2011.Judge: Honorable William Law.Parties: Tracy Woods vs. Florida
Dept. of Transportation, Lake County & RangerConstruction Industries.
Attorneys: For Plaintiff: DavidMoffet; For Defendant: RobertDietz for FDOT, Joshua Fricke for Lake County, Barbara Taggartfor Ranger Const. Ind.
Nature of Case: Plaintiff’smotorcycle slipped on roadwaygravel, resulting in two leg fractures.
Verdict: For FDOT resulting in a$30,000.00 judgment against the plaintiff for fee & costs.Judgment against Lake Countyfor $23,207.76, Plaintiff 75%negligent, and Lake Co. 25% negligent.
For The Month of: April 2011.Judge: Honorable Pamela Campbell.Parties: Frederick Smith vs. GEICO.Attorneys: For Plaintiff: Stephen
Barnes; For Defendant: Joseph F. Kinman, Jr.
Nature of Case: Uninsured motoristclaim from auto/bus collision.
Verdict: $20,000 past medicals. No permanent injury.
For The Month of: May 2011.Judge: Honorable Elizabeth
A. Jenkins.Parties: Marcella Pourmoghani
vs. Hillsborough County Sheriff’s Detention Deputy & Hillsborough County Sheriff’s Office.
Attorneys: For Plaintiff: VirlynMoore; For Defendant: Thea G. Clark & Jason G. Gordillo.
Nature of Case: Civil rightsviolation, excessive force alleged in HCSO jail.
Verdict: Defense verdict, noexcessive force occurred.
Defendants motion for attorney’sfees and cost pending.
For The Month of: June 2011.Judge: Honorable Robert M. Evans. Parties: Enock Plancher, as
Personal Representative of the Estate of Ereck MichaelPlancher, II, deceased vs. UCF Athletics Association, Inc.
Attorneys: For Plaintiff: SteveYerrid, David D. Dickey, J.D.Dowell and Jeff Murphy; ForDefendant: Daniel A. Shapiro,Anne Sullivan, Kevin S. Taylorand Jorge Martinez.
Nature of Case: Negligent athletic supervision; Failure to inform and treat sickle cell student-athlete.
Verdict: For Plaintiff$10,000,000.00.
For The Month of: July 2011. Judge: Honorable Lee E. Haworth,
Sarasota County Circuit Court.Parties: Deborah E. Darling vs.
Gary A. Roberts.Attorneys: For Plaintiff: Charles
Livingston and John Ervin; For Defendant: Chuck Bavol and Melissa Krepps.
Nature of Case: Non-disclosure,Florida Deceptive & UnfairTrade Practices Act (FDUTPA)and punitives against builder;$4.0M home; alleged mold and defects.
Verdict: For the defense on allcounts; directed verdict onpunitive damages. Motion for fees and costs on rejectedproposal for settlement andFDUTPA count is pending.
For The Month of: August 2011. Judge: Honorable David Demers
(Pinellas).Parties: Gayle DeRycke, as
Personal Representative of theEstate of Douglas DeRycke
vs. Packaging Corporation of America.
Attorneys: For Plaintiff: SteveYerrid and David D. Dickey; For Defendant: Jeff Winkler and Eric Kuwana.
Nature of Case: Motor vehiclewrongful death; Scope ofemployment, dinner withDefendant’s executive foundsocial not business activity.
Verdict: For the Defendant.
For The Month of: August 2011.Judge: Honorable George
Maxwell, III.Parties: Benjamin Hintz vs. Emily
Boozer & Otto Boozer.Attorneys: For Plaintiff: Hendrik
Uiterwyk; For Defendant: Virgil Wright.
Nature of Case: Plaintiff was rear-ended on a scooter without helmet.
Verdict: $14,905,484.29.
For The Month of: August 2011.Judge: Honorable Richard Nielsen.Parties: Oaks III Condo Assoc.
vs. Arrow Pest Control.Attorneys: For Plaintiff: Peter
Cardillo; For Defendant Daniel Gerber.
Nature of Case: Termite damage.Verdict: Settlement $750,00.00.
For The Month of: September 2011.Judge: Honorable Sam D. Pendino .Parties: Washington vs. Williams.Attorneys: For Plaintiff: Joseph
Vecchiol; For Defendant:Brandon Scheele and Michael Bird.
Nature of Case: Admitted liabilityrear-end accident. Low back surgery.
Verdict: $9,470.81.
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ADVERTISER INDEX
Anton Legal Group ..............................................................50Bank of Tampa ......................................................Back CoverBolter & Carr Investigations ................................................52Buell & Elligett, P.A. ............................................................35Cappy Law Firm ..................................................................31Carlton Fields........................................................................19Charles W. Ross, P.A. ............................................................21Clark & Martino ....................................................................34Cody Fowler Davis ................................................................37Community Bank ..................................................................61Cushman & Wakefield..........................................................25Dalan & Katz, P.L. ................................................................18Danahy & Murray ..................................................................4Didier Law Firm..........................................Inside Back CoverFifth Third Bank....................................................................16Florida Bar Trial Lawyers Section........................................56Fraley Firm, P.A. ....................................................................56Free Press ..............................................................................51
Gunn Law Group ......................................Inside Front CoverJohn Boyer Inc. ....................................................................28Keith Hope - The Hope Law Firm........................................36Newman & Associates, P.A., CPAs......................................50Orion Law Cloud Services....................................................30Paul Sidney Elliott ..................................................................9Perzel & Lara Forensic CPA’s ..............................................13Richard A. Tanner ................................................................12Ringler Associates ................................................................45Robert H. Bonanno ..............................................................49Sabal Trust ..............................................................................7Tampa Bay Catholic Lawyers Guild ....................................22Thompson Reuters ..........................................................InsertTrial Consulting Services ....................................................53Vector Commercial Real Estate Services, LLC ..................29W.H. Simon & Company, P.A ................................................44Williams Schifino Mangione & Steady P.A. ........................40Woody Isom ..........................................................................31
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As one of the best policyholder advocates in the nation, Chip Merlin relies on The Bank of Tampa for his firm’s large capital requirements and their other banking needs. “We rely on them for everything from remote deposit capture to personal banking,” says Merlin. “Many of our clients have regulatory or contractual requirements that insurance recoveries be placed into trust. Both parties always agree on The Bank of Tampa.”
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“The Bank of Tampa provides every service we need.”
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The Bank of Tampa’s Rick Bourkard and Chip Merlin at Merlin Law Group’s Harbour Island office.
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