1. Art and Diseño

F
2015
Voicemail Line: (772) 220-8018 E-Mail: [email protected] Website: www.martincountybar.org
N
I T
I
President’s Message (Pg. 1)
2015 Legal Directory (Pg. 3)
CLE Luncheon Meeting (Pg. 4, 40)
2015 Softball Challenge (Pg. 5)
Retirement Reception Recap (Pg. 6)
Canoe Trip (Pg. 12)
Griffin/Heisey Investitures (Pg. 12)
2015 Banquet Info. (Pg. 12)
Cheers/Member Benefits (Pg. 22)
19th Circuit Grievance (Pg. 25)
4DCA Anniversary (Pg. 29)
TD Bank “Free $” (Pg. 34)
Speaker Requests (Pg. 37)
Spring Food Drive (Pg. 37)
Calendar of Events (Pg. 39)
Law & Bar Related Committee Reports:
ADR (Pg. 30)
Admiralty (Pg. 15)
Bankruptcy (Pg. 36)
Employment & Labor (Pg. 21)
Family Law (Pg. 25)
FAWL (Pg. 24)
Justice Teaching (Pg. 26)
Lady Lawyer (Pg. 29)
Law Library (Pg. 11)
Pro Bono (Pg. 32)
Professionalism (Pg. 20)
Real Property (Pg. 16)
Probate, Trust & Guard. (Pg. 26)
Trial Law (Pg. 19)
Scholarship (Pg. 34)
Small & Solo Practice (Pg. 29)
Social Committee (Pg. 12)
YLD (Pg. 33)
T
S
B
M
M
F
C
B
A
P
Milestone Celebrations
The year 2015 marks certain significant anniversaries
in my life. My parents will celebrate their 45th wedding
anniversary in June, and my husband and I will celebrate
our 15th wedding anniversary in March. As a family law
practitioner, I know that these milestones should be
appropriately celebrated and revered. Being married is
both a blessing and a significant amount of work as it
requires patience, kindness, laughter, and democracy, where both parties
are equals who have to find ways to compromise.
For democracy, 2015 is a milestone year, marking the 800th anniversary
of the Magna Carta. I am a British History buff (as you will all see at the
Banquet), and for Christmas I received a book called Kings & Queens of
Continued On Next Page . . .
Great Britain Every Question Answered.
N
Published monthly, excluding July, by
the Martin County Bar Association as a
service to its membership.
If you have an article, opinion, news
or other information for publication
in the SideBar, please call Michelle
Katzman at (772) 220-8018 or email
information to:
[email protected]
The due date for all advertisements,
articles and announcements is the 1st
of the month preceding publication.
On the dotted line: King John signing Magna Carta at Runnymeade 15 June 1215.
Photograph: Universal History Archive/Un/REX
MCBA 2014-2015 E
B
:
President:
Jennifer Alcorta Waters
Treasurer:
Mark Miller
Immediate Past President:
George W. Bush, Jr.
Vice President:
Chad C. Hastings
Secretary:
Elizabeth Hunter
Executive Director:
Michelle D. Katzman
Voicemail Line: (772) 220-8018 E-Mail: [email protected] Website: www.martincountybar.org
T
S
B
- F
2015
Continued From Previous Page . . .
Before I sat down to write this article, I happened to read about Richard the Lionhart and King John.
John and Richard were two of eight children born to King Henry II and Eleanor of Acquitane. Richard
the Lionhart was the favorite of Queen Eleanor, and John was the favorite of Henry II. Ultimately,
Henry II and Eleanor became estranged (due in large part to Henry’s multitude of mistresses) and
Eleanor, imprisoned by Henry in a remote castle, encouraged their children’s rebellions against their
father.
Richard, who spent many years and much English money on the Crusades, was considered a hero
to the English people. John, on the other hand, was reviled by the people. The youngest of eight
children, John was never expected to inherit, and was initially nicknamed “John Lackland” because
his father failed to provide him with land when dividing his lands among his children. John was
religiously educated, given the expectation that he would ultimately be a bishop or other religious
leader. However, John was always ambitious. Richard hated John, and before he left for the Third
Crusade, Richard made John promise not to enter England for three years.
Not surprisingly, John failed to keep his promise and was in England within the year, usurping control.
In 1193 Richard was captured by Leopold of Austria and turned over to Henry VI, the Holy Roman
Emperor, who held him for an outrageous ransom. Instead of helping to free his brother, John pledged
his loyalty to the French leader, and the two of them paid to keep Richard imprisoned.
In addition to betraying his brother, he abandoned and divorced his first wife, and married a young
and beautiful heiress who had previously been betrothed to a French nobleman, giving the King of
France more ammunition to fight the English. Known for his ruthlessness, brutality, lack of honor, and
weakness, John earned the nickname “John Swoftsword.”
Ultimately, John’s bad leadership resulted in the rebellion of a large group of Barons who marched to
London. A despised king, John had little option but to accede to the demands of his Barons, and on
June 15, 1215, at Runnymede, John signed the famous Magna Carta.
Not surprisingly, within weeks of the execution, the King disowned the document, and the Pope
condemned it. The next year John ended up at war with his Barons, who had the support of the
French crown. John died in October of 1216 from dysentery. The French king’s son claimed the
English throne; however, the Charter was resurrected by a few great English lords, and John’s nineyear-old son, Henry, was crowned king.
The Magna Carta is known as a symbol of liberty and the rule of law. Containing approximately 63
provisions, it provided the basis for our modern rights with certain principles, including the notion that
no person is above the law, including the King. It continued traditions initially started by Henry II, who
appointed traveling justices to hear legal cases throughout England and who began replacing trials
by ordeal or combat with trials by jury.
The Magna Carta provided the foundations to our modern legal system, requiring the King to provide
justice and to protect free men from imprisonment except by judgment of his peers or under the law.
The most noteworthy provision of the document reads as follows:
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or
outlawed or exiled … except by the lawful judgment of his equals or by the law of the land.”
Continued On Next Page . . .
2
T
S
B
-F
2015
Continued From Previous Page . . .
It also provided certain “inalienable” rights, including establishing fundamental principles of due
process and equality under law. And, it codified various rights, including, but not limited to: the right of
the church to be free from governmental interference, the rights of all free citizens to own and inherit
property and to be protected from excessive taxes, and the right of land-owning widows to decide
whether to remarry. It also contained provisions forbidding bribery and official misconduct.
These foundational principles embodied within the Magna Carta live on in our Constitution and our
democratic rule of law today. Notably, one of the eight panels on the bronze doors in the United
States Supreme Court depicts an unhappy King John pressing his seal onto the Magna Carta. The
Magna Carta is a symbolic representation of the fundamental concepts underlying our democracy,
born more than 800 years ago, thanks to the weakness and ineffectual rule of one infamous king.
Sincerely,
Jenniifer Alcorta Waters,
Waters 2014-2015
2014 2015 MCBA President
Jennifer
=====================
For more information on this topic, visit these resources:
*Higham, N. (2014). “Just How Important is Magna Carta 800 Years On?” DOI, BBC News Magazine.
*Soud, D. (2013). Kings & Queens of Great Britain Every Question Answered. New York: Metro
Books.
*The Economist (12/20/14): “The Uses of History: How did a failed treaty between medieval combatants
come to be seen as the foundation of liberty in the Anglo-Saxon world?”
*United for Human Rights. A Brief History of the Magna Carta (1215). DOI: http://www.humanrights.
com/what-are-human-rights/brief-history/magna-carta.html
2015 MCBA Legal Directory is Here!
MCBA members may pick up their free copy at the
February 20th luncheon meeting at the Kane Center. If you are
unable to make the meeting, contact Kathy Enloe at
(772) 283-8002 for more information.
3
T
S
B
- F
2015
MCBA CLE Luncheon Meeting
February 20, 2015
On Friday, February 20, 2015, the Executive Board of the MCBA invites its
members, prospective members, and any guests to join us for our monthly
luncheon meeting at the Kane Center in Stuart at 11:45 a.m. We look forward to an
insider’s perspective from our guest speaker, The Honorable Robert M. Gross.
Hon. Robert M. Gross
Judge Gross received his J.D. from Cornell University in 1976 and has had an
impressive legal career, spanning positions in New York, Pennsylvania, and
Palm Beach County, Florida, as outlined below:
Chief Judge of the Fourth District Court of Appeal, 2008 – 2011; Judge, Fourth District
Court of Appeal, 1995-present; Circuit Court Judge, 1991-95; County Court Judge, 1984-91;
Administrative Judge of County Court, 1988-90; Private Practice, Moyle, Jones and Flanigan,
P.A., West Palm Beach, 1981-84; Assistant State Attorney, Palm Beach County, 1977-81;
Assistant District Attorney, New York County, New York, 1976-77.
The Judicial and Bar activities summarized below showcase Judge Gross’s breadth and depth of
commitment to the law:
The Florida Bar, 1976-present; Florida Judicial College Faculty Member, 1990-present
(teaching Evidence, Landlord & Tenant, and Building a Judicial Style); Task Force on Criminal
Justice and Corrections, 1993-94; Palm Beach County Bar Association, 1977-present;
District of Columbia Bar, 1977-present; New York Bar, 1977-present; Palm Beach County
Bar Association Law Week Essay Judge, 1996-present; Lecturer, Conference of Circuit Court
Judges, Conference of County Court Judges, Academy of Florida Trial Lawyers, and Palm
Beach County Bar Association, 1988-present.
We greatly anticipate Judge Gross’ presentation. Those who attended our September, 2009, lunch
meeting will recall that as our guest speaker, Judge Gross was entertaining, engaging, informative
and insightful, bringing to life the distinguished career of Robert H. Jackson. In 2010 he provided
another exceptional program, providing insight on Franklin D. Roosevelt, his historical achievements
and significance to law today. For 2015 Judge Gross will address his historical perspective on the
cases, decisions, and changes in law that impact those cases now being brought to the Fourth
District Court of Appeal.
As always, the Executive Board thanks our luncheon co-sponsor, Comerica Wealth Management.
We look forward to an insightful and engaging program
with another great turnout. Please call (772) 220-8018 or
email [email protected] no later
than 5:00 p.m. on Monday, February 16th. The lunch is free
to MCBA members and judges; guests are welcome to
attend and may pay the $25 guest fee at the door. RSVP
required for all attendees. We hope to see you there!
4
T
S
B
-F
2015
Are You Ready For
Some Softball?
I am excited to announce that we are having a Third Annual Martin County Bar
Association Softball Challenge! I am also excited to, once again, be the coach,
the team manager and the lawyer with relatively mediocre softball skills. But,
hey, I sit at a desk or stand in a Courtroom most of the time, so, I have a good
excuse for my excitement to get back on the field.
This year, we have a new challenger: The North County Section of the Palm
Beach County Bar Association. This bar association is the largest we have
received a challenge from, so, we may be facing our most difficult challenge yet. We will see.
Here are the details for the game:
Date:
Time:
Place:
March 7, 2015
10:00 am
Halpatiokee Park, Stuart, Florida (Field 3)
Similar to last year, this is a co-ed softball game. So, we need both men and women who can play
softball to step up to the plate. As always, we will have food and drinks for players, MCBA members
and their families who wish to attend.
This is a family friendly event for every MCBA member. If you don’t play softball, but want to watch
and provide us moral support, we welcome you. It is entertaining, likely one of the most entertaining
events we hold (at least in my opinion). The Honorable Judge Roby will, for the third year straight,
be the umpire. While none of us lawyers have yet figured out how to throw or judge whether a slow
pitched softball is a ball or strike, Judge Roby has. And, my friend and now Judge Laurie Buchanan
will play again. Last year, she was the subject of a certain second base out vs. safe controversy.
It was a heated debate and entertaining. Judge Buchanan was safe, so said the Circuit Judges.
There were appeals, yet we had no appellate judges to hear the controversy. Perhaps this year we
will?
The point is: bring your family, have lunch with us and have fun watching this game. More importantly, if
you want to play on the team, email me as soon as you possibly can, because the roster fills up quickly.
If you want to play, contact me at chastings@lesserlawfirm.com or you can call me at 772-283-6839.
If you plan on attending the event for lunch, please RSVP to [email protected]
with the # of adults and # of children (Put “Softball Lunch RSVP” in the Subject line). I look forward
to seeing everyone on the field!
The MCBA thanks our team sponsor:
5
T
6
S
B
- F
2015
T
S
B
-F
2015
Retirement Reception - The Pelican Yacht Club
December 17, 2014*
*Photos provided courtesy of Legal Consulting Services, Inc.
7
T
S
B
- F
2015
Retirement Reception - The Pelican Yacht Club
December 17, 2014*
*Photos provided courtesy of Legal Consulting Services, Inc.
8
T
S
B
-F
2015
Retirement Reception - The Pelican Yacht Club
December 17, 2014*
*Photos provided courtesy of Legal Consulting Services, Inc.
9
T
S
B
- F
2015
Retirement Reception - The Pelican Yacht Club
December 17, 2014*
*Photos provided courtesy of Legal Consulting Services, Inc.
10
T
S
B
-F
2015
LAW LIBRARY COMMITTEE
Law Library Update
The CLE seminars noted below are available free of charge to all MCBA members
through the law library. If you have new seminar suggestions, please e-mail me
at [email protected] for consideration. To check on existing seminar
availability, call Dawn at the Law Library at 221-1427. The Law Library is open
Mon.-Thurs., 9:00 a.m.- 1:30 p.m.
Current CLE Seminars available at the Law Library include:
•
Essentials of Elder Law for New Attorneys and Paralegals (9.5 credit hours, 1 hour Ethics).
Certification hours: 7.0 in Elder Law and 3.0 in Wills, Trusts & Estates. Approved through 7/15/15.
•
The Revised Land Trust Act (6.5 credit hours, 1 Ethics). Certification hours: 6.5 in Real Estate, 5.0
in Elder Law and Wills, Trusts & Estates, and .05 in Tax. Approved through 4/30/15.
•
Navigating the New Florida Revised LLC ACT (7.5 credit hours). Approved through 4/24/15.
•
Survey of Florida Law 2014 (2 copies) (14.5 credit hours). Certification hours: 4.5 in Business
Litigation, 2.5 in Civil Trial Trusts, 2.0 in State, Federal, Government & Administration Practice,
and 1.0 in Elder Law; City, County and Local Government; Health Law; and Tax, Wills, Trusts &
Estates. Approved through 11/9/15.
•
Litigation Employment Law Claims. (8.0 credit hours, 1 Ethics). Certification hours: 6.0 in Labor
& Employment. Approved through 5/13/16.
Law Library Hours Survey:
The Library System is doing an electronic hours survey among attorneys of all of their branches to
ensure that they are serving all patrons’ needs. Please take a few minutes to complete it via this link:
https://www.surveymonkey.com/s/RCKTVRF. Survey deadline is February 9, 2015.
CLE Sharing Request
If you or your firm have CLE CD’s, DVD’s or audiotapes that are unexpired
and you are willing to donate them to the Law Library, please bring them to any
monthly luncheon or contact [email protected]
to make arrangements for pick-up.
11
T
S
B
- F
2015
SOCIAL COMMITTEE
Please Join Us!
Join us on February 6th for the Investiture of Victoria Griffin
at the Indian River Courthouse at 4:00 p.m. RSVP to:
[email protected] by
February 1st. Join us
th
February 20 for the Investiture of Michael C. Heisey at the
St. Lucie County Courthouse in the Jury Assembly Room at
4:00 p.m. (RSVP to: [email protected] by
February 10, 2015).
On February 21-22 we will launch our annual Canoe Trip. It is
now SOLD OUT, contact Preethi Sekharan at [email protected] for more information.
Our Annual Installation Banquet will be held on May 16th at Mariner Sands Country Club. See Page
13 for details and look for your invitation in the mail coming soon! Tickets are available on a firstcome, first-served basis. Additionally, see Page 14 for sponsorship opportunities.
Wee Thank Our Early Banquet Sponsors:
W
rs:
Here’s to a great 2015! We hope to see you at these events!
For further information, contact Barbara Kibbey Wagner at (772) 286-0023 or Jason Berger at
[email protected].
12
T
S
B
-F
2015
The Executive Board of
The Martin County Bar Association
cordially invite you to attend the
2015 Annual Installation Banquet
A Celtic Celebration
Saturday, May 16, 2015
at
Mariner Sands Country Club
6500 NE Mariner Sands Drive
Stuart, Florida 34997
Advanced tickets are now on sale!
Purchase Before March 15, 2015
$85 per ticket for MCBA members,
sponsors and their guests
$110 per ticket for non-MCBA members
Judiciary are invited to attend at no charge;
their guests receive member rates.
Tickets processed after March 15, 2015 are
$100/$125 respectively.
Table reservations available, Call 772-285-6245 for details.
Final deadline to purchase tickets:
April 30, 2015
Mail checks made payable to MCBA, with list of attendees to:
Barbara Kibbey Wagner, Esq.
Kibbey Wagner
416 SW Camden Avenue
Stuart, FL 34994
13
2015 Martin County Bar Association's
Banquet Sponsorship Opportunities
A Celtic Celebration
Saturday May 16, 2015
T
U
O
Edinburgh Castle Casino Sponsor $3,500
(Only 1 Available)
Recognition on Banquet signage and in program
Recognition by Banquet speaker
Recognition on MCBA Website
Recognition in Monthly MCBA newsletter for one month following Banquet
Free full-page advertisement in 1 edition of SideBar, MCBA’s monthly newsletter or –
½ page in 2 editions
≤ 6 free tickets to Banquet
≤
≤
≤
≤
≤
≤
≤
≤
≤
D
L
SO
Balmoral Castle Speciality
Drink Sponsor $1,300
Glamis Castle
Gold Sponsor $1,500
T
U
O
(Only 1 Available)
Recognition on Banquet signage and in program
Recognition by Banquet speaker
Recognition on MCBA Website
Recognition in Monthly MCBA newsletter for
one month following Banquet
≤ Free full-page advertisement in 1 edition of SideBar,
MCBA’s monthly newsletter or – ½ page in 2 editions
≤ 4 free tickets to Banquet
≤ Recognition on Banquet signage and in program
≤ Recognition in Monthly MCBA newsletter for one
month following Banquet
≤ Free ½ -page advertisement in 1 edition of SideBar,
MCBA’s monthly newsletter or – ¼ page in 2 editions
≤ 2 free tickets to Banquet
Kilkenny Castle Cocktail
Hour Sponsor $1,100
Blarney Castle
Silver Sponsor $1,000
≤
≤
≤
≤
D
L
O
T
U
O
(Only 4 Available)
Recognition on Banquet signage and in program
Recognition in Monthly MCBA newsletter for one
month following Banquet
Free ½ -page advertisement in 1 edition of SideBar,
MCBA’s monthly newsletter or – ¼ page in 2 editions
3 free tickets to Banquet
S
D
L
SO
≤
≤
≤
≤
Bunkingham Palace
Bronze Sponsor $750
≤
≤
≤
≤
14 in program
Recognition on Banquet signage and
Recognition in Monthly MCBA newsletter for one
month following Banquet
Free ¼ page advertisement in 1 edition of monthly
MCBA newsletter
1 Free ticket to Banquet
Recognition on Banquet signage and in program
Recognition in Monthly MCBA newsletter for one
month following Banquet
Free ½ -page advertisement in 1 edition of SideBar,
MCBA’s monthly newsletter or – ¼ page in 2 editions
2 free tickets to Banquet
Windsor Palace
Copper Sponsor $500
≤
≤
≤
Recognition on Banquet signage
Recognition in Monthly MCBA newsletter for one
month following Banquet
Free business card advertisement in 1 edition of
monthly MCBA newsletter
Contact Jason Berger at (772) 403-5880
For more information on becoming a sponsor.
T
S
B
-F
2015
ADMIRALTY COMMITTEE
FISHERMAN GETS SNARED IN THE SARBANES-OXLEY NET
The U.S. Supreme Court on November 5, 2014, heard oral arguments in the
Yates v. U.S. case. John Yates is a commercial fisherman accused by federal
prosecutors of violation of the Sarbanes-Oxley corporate governance law for
destroying evidence of undersized fish. That law was passed in 2002 in response
to the accounting irregularities at publicly traded companies. As a result of Enron
Corporation’s document destruction, Congress made it a crime punishable for up
to 20 years’ imprisonment for knowingly destroying or covering up any evidence
with the intent to obstruct an investigation.
The question presented to the U.S. Supreme Court was: “18 U.S.C. § 1519
makes it a crime for anyone who ‘knowingly alters, destroys, mutilates, conceals,
covers up, falsifies, or makes a false entry in any record, document, or tangible object’ with the intent
to impede or obstruct an investigation. John L. Yates, a commercial fisherman, was charged and
convicted under this anti-shredding criminal statute for destroying purportedly undersized, harvested
fish from the Gulf of Mexico after a federally-deputized officer had issued him a civil citation and
instructed him to bring them back to port. This petition presents the important question of whether
the reach of section 1519 extends to the construction of anything meeting the dictionary definition of
‘tangible objects,’ or instead is limited to the destruction of tangible objects related to record-keeping
and whether Yates was deprived of fair notice that destruction of fish would fall within the purview
of 18 U.S.C. § 1519, where the term ‘tangible object’ is ambiguous and undefined in the statute,
and unlike the nouns accompanying ‘tangible object’ in section 1519, possesses no record-keeping,
documentary, or informational content or purpose?”
Fisherman Yates was caught with some grouper that appeared to be undersized in federal waters in
the Gulf of Mexico by Florida Fish and Wildlife officers deputized to enforce federal fisheries laws. He
was issued a civil citation and ordered to return to home port. On the way home, the undersized fish
jumped ship (allegedly with some help from the crew on orders from the master). As a result, when
the ship docked, it had only fish that met the size requirement. Federal prosecutors sued him under
the criminal Sarbanes-Oxley Act for destroying property to prevent seizure by the federal government.
He was convicted and sentenced to 30 days in jail and three years supervision after release.
Some justices were troubled that prosecutors relied on a statute with such severe criminal penalties
for what would have been a relatively minor civil case. A justice argued if the law is as broad as
prosecutors alleged, then it could be used to target a camper on federal lands who hides an illegal
campfire. Yates’ lawyer argued the law was meant to target destruction of records, documents, and
tangible objects designed to hold information evidencing corporate fraud. Of course, it is probable
Yates knew that without tangible evidence of undersized fish, there could be no conviction of that
minor civil violation. However, what he did not count on was being caught in the Sarbanes-Oxley
criminal net. A decision is expected in July. Decision below: 733 F.3d 1059 (11th Cir. 2013).
=========================================
Note: All my maritime articles are available on my website www.barbcooklaw.com
15
T
S
B
- F
2015
REAL ESTATE AND COMMERCIAL LITIGATION UPDATE
Update: Real Property and Business Litigation Report
Beltway Capital, LLC v. The Greens COA, Inc., --- So.3d ----, 2014 WL 6834331
(Fla. 5th DCA 2014).
A successor first mortgage (by assignment or transfer from the original first mortgagee)
is entitled to the “safe harbor” provisions of Florida Statute § 718.116(1)(b).
In re Standard Jury Instructions in Civil, Criminal, Contract & Business CasesJurors’ Use In re Standard Jury Instructions in Civil, Criminal, Contract &
Business Cases-Jurors’ Use of Electronic Devices, --- So.3d ----, 2014 WL 6802557
(Fla. 2014).
The standard jury instructions regarding juror use and maintenance of cell phones and other electronic
devices are revised.
Medytox Solutions, Inc. v. Investorshub.com, Inc., --- So.3d ----, 2014 WL 6775236 (Fla. 4th DCA
2014).
Interactive website operators are immune from claims of defamation under section 230 of the
Communications Decency Act, 47 U.S.C. § 230.
Bogdanoff v. Broken Sound Club, Inc., --- So.3d ----, 2014 WL 6775259 (Fla. 4th DCA 2014).
An amended complaint alleging the new jurisdictional amounts need not be filed when a suit is transferred
from county court to circuit court.
Bethany Trace Owners’ Ass’n, Inc. v. Whispering Lakes I, LLC, --- So.3d ----, 2014 WL 6778285 (Fla.
2d DCA 2014).
Subdivision covenants must be interpreted so that no section is rendered meaningless.
Stein v. Buccaneers Ltd. Partnership, --- F.3d ----, 2014 WL 6734819 (11th Cir. 2014).
Offer of full relief to individual class plaintiffs does not moot a putative class action under the Telephone
Consumer Protection Act, 47 U.S.C. § 227(b)(1)(C).
Orange County v. Hewlings, --- So.3d ----, 2014 WL 6990570 (Fla. 5th DCA 2014).
A “PCA” opinion has no precedential value, while a “per curiam” opinion does.
In re Amendments to Florida Rules of Civil Procedure, --- So.3d ----, 2014 WL 6977929 (Fla. 2014).
New rules of procedure for foreclosures, including new Florida Rule of Civil Procedure 1.115 regarding
pleading requirements for foreclosure complaints.
Moskalenko v. Israel, --- So.3d ----, 2014 WL 6910660 (Fla. 4th DCA 2014).
A contemnor may not be held in custody indefinitely if he has no ability to purge, even if his inability to
purge is due to his own actions.
Jallali v. Knightsbridge Village Homeowners’ Ass’n, Inc., --- So.3d ----, 2014 WL 6910686 (Fla. 4th
DCA 2014).
A trial court may not enter an amended final judgment while the appeal of the prior final judgment is still
pending.
Continued On Next Page . . .
16
T
S
B
-F
2015
Continued From Previous Page . . .
Suntrust Mortg. v. Torrenga, --- So.3d ----, 2014 WL 6910693 (Fla. 4th DCA 2014).
Missing a trial because of a calendaring error is excusable neglect as it constitutes “inaction [that] results
from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the
foibles to which human nature is heir.”
Jonas v. Jonas, --- So.3d ----, 2014 WL 6910820 (Fla. 4th DCA 2014).
A party may not attack a foreign judgment that has been domesticated in Florida based on the operation of
the foreign judgment; collateral attacks only go to judgment’s validity.
Nikooie v. JPMorgan Chase Bank, N.A., --- So.3d ----, 2014 WL 6911148 (Fla. 3d DCA 2014).
The Third District distinguishes itself from the Fourth District and holds that failure to pay documentary
stamp and intangible taxes under Florida Statute § 201.08(1)(b) prohibits enforcement of the mortgage (and
not just future advances under the mortgage). The Third District additionally held a lender may subrogate
to its own loans so long as third parties are not prejudiced, and a plaintiff may bring in a new party by
amendment, and by doing so, amend its lis pendens (even if the amendment is beyond the thirty days of
Florida Statute § 48.23).
Reznek v. Chase Home Finance, LLC, --- So.3d ----, 2014 WL 6948509 (Fla. 3d 2014).
Neither Florida Statute § 57.105 nor Florida Rule of Appellate Procedure 9.410(b) authorize the filing of
a motion for sanctions prior to the opposing party filing any type of paper, claim, contention, allegation or
denial in the appeal.
Harris v. Schonbrun, --- F.3d ----, 2014 WL 6957937 (11th Cir. 2014).
Requiring a borrower to sign loan documents and postdated waiver of right to rescind transaction at loan
closing violates the Truth In Lending Act, and entitles the borrower to statutory damages, attorneys’ fees
and costs.
Hilton Hotels Corp. v. Anderson, --- So.3d ----, 2014 WL 7191042 (Fla. 5th DCA 2014).
Even though the name of the defendant was inserted in the title of the document, the phrase “PLAINTIFF
agrees to settle any and all claims asserted against [Defendant]” without entering the name of the specific
Defendant to whom the proposal was made rendered the proposal for settlement unenforceable, as it was
not clear which of the multiple defendants was being addressed in the specific phrase.
In re Amendments to Florida Rule of Judicial Admin. 2.420, --- So.3d ----, 2014 WL 7178909 (Fla.
2014).
Florida Rule of Judicial Administration 2.420 is amended to permit public access to court records subject to
the security matrix outlined in Florida Supreme Court Administrative Order 14-19.
Montreux at Deerwood Lake Condominium Ass’n, Inc. v. Citibank, N.A., --- So.3d ----, 2014 WL
7183213 (Fla. 1st DCA 2014).
A foreclosing party may not, postjudgment, seek to determine the amounts due a condominium association
by moving to “enforce” a foreclosure judgment (which did not mention association assessments) more than
six months after judgment.
Hound Mounds, Inc. v. Finch, --- So.3d ----, 2014 WL 7150482 (Fla. 4th DCA 2014).
A challenge to the entire agreement (which contains an arbitration clause) must be made to the arbitrator;
a challenge as to the arbitration clause alone is to the court.
Continued On Next Page . . .
17
T
S
B
- F
2015
Continued From Previous Page . . .
Great American Ins. Co. of New York v. 2000 Island Blvd. Condominium Ass’n, Inc., --- So.3d ----,
2014 WL 7156894 (Fla. 3d DCA 2014).
A trial judge who tells a defendant to “fork over the money” has abandoned his neutrality and cannot
continue to preside over the case.
Deutsche Bank Trust Co. Americas v. Beauvais, --- So.3d ----, 2014 WL 7156961 (Fla. 3d DCA 2014).
Dismissal of a foreclosure complaint without prejudice does not decelerate the loan and stop the running
of the statute of limitations, distinguishing U.S. Bank Nat. Ass’n. v. Bartram, 140 So.3d 1007 (Fla. 5th DCA
2014) review granted, Bartram v. U.S. Bank Nat. Ass’n, Nos. SC14–1265, SC14–1266, SC14–1305 (Fla.
Sept. 11, 2014).
Ezem v. Federal Nat. Mortg., --- So.3d ----, 2014 WL 7094295 (Fla. 1st DCA 2014).
A husband is permitted to intervene in the foreclosure of his wife’s home, even if he did not sign the note
and mortgage, because foreclosure affects his homestead rights.
U.S. Bank Nat. Ass’n v. Farhood, --- So.3d ----, 2014 WL 7095306 (Fla 1st DCA 2014).
A trial court may not sanction a party by altering that party’s lien priorities, as doing so impermissibly alters
the statutory framework for lien priorities.
Kolodziej v. Mason, --- F.3d ----, 2014 WL 7180962 (11th Cir. 2014).
A criminal defense attorney’s televised statement that “I challenge anybody to show me—I’ll pay them a
million dollars if they can [arrive at the Atlanta airport and travel to a specific hotel all within 28 minutes]” is
not, under the circumstances which it was made, an offer that could be accepted.
In re Certification of Need for Additional Judges, --- So.3d ----, 2014 WL 7236937 (Fla. 2014).
The Florida Supreme Court certifies the need for 35 new judges.
Any article appearing herein may be reproduced provided credit is given both to The SideBar and the author of the article. Views and conclusions
expressed in articles and ads herein are those of the authors or advertisers and not necessarily those of the officers, directors, or staff of the Martin
County Bar Association. Further, the Martin County Bar Association and staff do not endorse any product or service advertised. All advertising is subject
to approval. We regret any errors or omissions and such, if applicable, will be noted in future issues. Many of the professional headshot photos have
been provided courtesy of: Legal Consulting Services, Inc.
18
T
S
B
-F
2015
TRIAL LAWYERS COMMITTEE
Please Join Us!
Thank you to The Honorable F. Shields McManus, Circuit
Judge for his very informative presentation at our last meeting.
A reprint of his article A REVIEW OF DISCOVERY PRACTICES
can be found on the MCBA’s website under RESOURCES. It
has been reprinted with permission from Friendly Passages,
January/February 2014, a Publication of the Friends of the
Rupert J. Smith Law Library, St. Lucie County.
Please join us at our next Trial Lawyers Committee meeting
on February 12, 2015, 12:00 p.m., at the Gunster Law Firm,
800 SE Monterey Commons Boulevard (Suite 200) in Stuart.
Our guest speaker will be Greg Weiss, a shareholder with the law firm Mrachek, Fitzgerald, Rose,
Konopka, Thomas & Weiss, PA. Mr. Weiss will be speaking about his recent jury trial in which he
obtained a $10.8 million dollar verdict in the case of Ashford Hospitality Trust, et. al. v. Nantucket
Enterprises. Mr. Weiss will go over his trial strategy, themes and jury presentation materials.
Lunch will be provided from Carson’s Tavern. If attending, please RSVP as soon as possible, but
no later than February 10th to Tammy Gale at [email protected]. I look forward to seeing
you there!
W. Jay Hunston, Jr.
Law Office Of
Stephen M. Lewen
Mediator/Arbitrator
Since 2001, limiting his
practice to all forms of effective
dispute resolution, including
mediation, arbitration, special
master, and private judging
services.
Social Security Disability
Worker’s Compensation
Representing the injured and disabled
for over 35 years.
EXPERIENCE COUNTS!
10 SE Central Parkway, Suite 230
Stuart, FL 34994
Telephone: 772-288-1300 | Fax: 772-288-2135
•
•
•
•
•
•
•
•
J.D., Stetson Univ. College of Law
Fla. Bar Bd. Cert. Civil Trial Lawyer, Emeritus
Fla. Cert. Circuit Civil, Appellate & Family Mediator
Member, AAA Roster of Neutrals for Commercial and
Construction Arbitration and Mediation
Qualified Fla. Arbitrator
FINRA Approved Mediator
Statewide Per Diem Rate Available Upon Request
Hourly Rates Available (No Charge for Travel Time Within 15th,
19th, and 17th Circuits)
P.O. Box 508, Stuart, FL 34995
(772) 223-5503; (800) 771-7780 - Office
(772) 223-4092; (866) 748-6786 - Fax
Email: [email protected]
Website/Online Calendar: www.hunstonadr.com
19
T
S
B
- F
2015
PROFESSIONALISM COMMITTEE
Ex Parte Communications with Martin County and City of Stuart Employees,
Officials and Appointed Board Members
An attorney asks: “Martin County and City of Stuart employees, elected officials,
and appointed Board members with quasi-judicial authority are all represented
within the scope of their employment or official capacity by the County Attorney
or City Attorney Offices. Is it ethical for an attorney to have ex parte contact with
these represented individuals to lobby or discuss a disputed issue in furtherance of
representation of the attorney’s client, or is the attorney bound by Florida Bar Rules
of Professional Conduct prohibiting direct contact with a represented individual
absent the consent of attorney representing the individual?”
Florida Statute § 286.0115 and Martin County Code § 1.10 specifically authorize
ex parte communications with elected and appointed officials with quasi-judicial
authority. Martin County Code states, at Section 1.10C: “Any persons not otherwise
prohibited by law may discuss with any local public official the merits of any matter
on which action may be taken by the board or Planning and Zoning Board on which
the local public official is a member. The substance of any ex parte communication
with a local public official which relates to quasi-judicial action pending before the
official is not presumed prejudicial to the action if the subject of the communication
and identity of the person, group, or entity with whom the communication took place
is disclosed and made a part of the record before final action on the matter.” The
Martin County code mirrors the State statute.
However, Florida Bar rules prohibit ex parte contact with represented persons concerning the matter
to which the representation relates. The standard regarding such contact is ethical Rule 4-4.2,
which states: “In representing a client, a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be represented by another lawyer in the matter,
unless the lawyer has the consent of the other lawyer.” The Rule further states, “In the case of a
represented organization, this rule prohibits communications with a constituent of the organization
who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter
or has authority to obligate the organization with respect to the matter or whose act or omission
in connection with the matter may be imputed to the organization for purposes of civil or criminal
liability.”
In the comments to Rule 4-4.2, there is an exception: “[A] lawyer having independent justification
for communicating with the other party is permitted to do so. Permitted communications include, for
example, the right of a party to a controversy with a government agency to speak with government
officials about the matter.” This exception was the basis for dismissal of a 2013 grievance against an
attorney who pursued remedies both administratively and directly with elected county officials and
staff, and also filed a lawsuit against the county and some of its employees. The Florida Association
of County Attorneys (FACA) and other lawyers who represent government officials have proposed
amendments to Rule 4-4.2 to effectively eliminate the “independent justification” exception. Under
the proposed amendment, lawyers would only be able to communicate with government officials
who are represented in a matter if the lawyer personally is a party or on a matter on the lawyer’s own
Continued On Next Page . . .
20
T
S
B
-F
2015
Continued From Previous Page . . .
behalf, or as part of a public hearing when an administrative or quasi-judicial matter is pending before
that agency, as permitted by Rules 4-3.5 and 4-3.9. However, the Florida Bar Board of Governors
failed to approve the proposed amendments at its December meeting.
Attorneys have an obligation under the Rules to contact government counsel prior to communicating
with represented government officials and employees where disputed matters are at issue and prior
to ex parte contact with any county elected or appointed official with quasi judicial authority. However,
as a matter of practice, City Commissioners regularly schedule meetings and meet with attorneys
without consulting the City Attorney. On a separate level, there are attorneys or individuals with
litigation pending that will go into the City development office and seek letters or responses predicated
upon development advice, even though these statements are clearly relevant to the litigation. These
actions may be a result of longtime custom and practice without knowledge that they violate bar
rules. Although neither the county nor the city attorney can prohibit the ex parte communications,
both offices request advisement prior to such contact.
For questions or more information on this topic or any other ethics/professionalism topic, contact
us at [email protected] or [email protected].
EMPLOYMENT & LABOR LAW COMMITTEE
FLORIDA’S NEW “INFORMATION PROTECTION ACT” OF 2014
Employers Beware: A new law in Florida requires businesses to notify their
customers when there is a data breach affecting personal information regarding
individuals, employees, and customers. The following is a brief summary of the
new law.
Companies have thirty (30) days after determination of the “data breach” to
provide notification to all affected individuals in Florida. In general, the notice
must include (1) the date or estimated date range of the breach, (2) a description
of the personal information which was accessed, and (3) contact information for
the company, for inquiries by any affected individuals.
The company must also notify the Florida Department of Legal Affairs, and must notify certain credit
reporting agencies if the breach affected more than 1,000 individuals at a single time. In addition, the
new law requires companies to take reasonable measures to protect and secure data in electronic
form containing personal information. The standard for compliance is a “commercially reasonable
security standard.”
This new law has been viewed as one of the most stringent data breach notification laws in the United
States. Please let me know if I can be of assistance to you or your clients.
=========
For questions on this area of law or content noted above, contact Robert Kilbride at
[email protected]. Attorney Kilbride is Board Certified in Labor & Employment Law.
21
T
S
B
- F
2015
News From Y
Your Friendly Neighborhood Bar
Congratulations to Judge Laurie E. Buchanan on her investiture last month. Look for a photo
recap of the reception sponsored by the Bar Associations of the 19th Circuit, Crary Buchanan, P.A.,
and Lesser, Lesser, Landy & Smith, PPLC, in next month’s issue of The SideBar.
Gunster, one of Florida’s oldest and largest full-service business law firms, is pleased to
announce Stephen C. Page, a shareholder in Gunster’s Stuart office, has been named to
the 2015 “Best Lawyers in America” list. Page was listed for Stuart in the practice areas of
Litigation–Intellectual Property, Litigation–Real Estate, Litigation–Trusts and Estates and
Commercial Real Estate. Best Lawyers’ annual list is compiled as a result of peer review
surveys and is published in almost 70 countries around the world. Inclusion in the 2015
edition of “Best Lawyers” was based on more than 5.5 million evaluations of lawyers by
other lawyers.
Congratulations to Andrea Johnson White who welcomed her first little one to the family
on December 4, 2014. Welcome Olivia Isabella White!
Please send us your news of new hires, promotions, awards, engagements, marriages,
child births, new addresses and the like for future issues of the SideBar.
***Reminder***
Member Benefit
Limited to 1 per year.
22
Professional head shot photos are taken at each
luncheon courtesy of
Legal Consulting Services, Inc.
at no charge to members for use on our
website and legal directory.
T
S
B
-F
2015
23
T
S
B
- F
2015
Martin County Chapter
Florida Association for Women Lawyers (FAWL)
The Florida Association of Women Lawyers, Martin County
Chapter, is proud to present several programs this Spring and we
hope you will join us! Below are the FAWL events that are taking
place in 2015 – look for more details coming soon:
March 25, 2015
FAWL, Martin County CLE Luncheon: Effective Mediation
Techniques presented by Marty Holleran*
Location: Gunster, Yoakley & Stewart, PA, 800 SE Monterey
Commons Blvd. Suite 200, Stuart, FL 34996
Time: 12:00 p.m.
June 4, 2015
FAWL, Martin County Annual Installation Ceremony & Reception*
Location: Martin County Courthouse, Harper Courtroom
Time: 5:30 p.m. (with reception to follow in Jury Room immediately thereafter)
*Seeking sponsorship for this event.
COMPLEX BUSINESS
AND FINANCIAL
DISPUTES
Securities / Corporate and Partnership / Real Estate / Healthcare / Trusts and Estates
Federal and State Courts / Arbitration
West Palm Beach, Fla. / 561.835.0900
24
beasleylaw.net
T
S
B
-F
2015
FAMILY LAW COMMITTEE
Please Join Us!
The Martin County Bar Association Family Law Committee will be holding
its next meeting on February 25, 2015. The meeting will begin at noon and
will be held at the Law Offices of Crary Buchanan. The speaker will be the
Honorable Laurie Buchanan who will address the group regarding her courtroom
procedures and expectations. As always, paralegals and legal assistants are
welcome to attend.
Lunch will be served; your RSVP no later than February 24, 2015 at noon
is appreciated. Please send your RSVP to either myself or Susan Stutz at
[email protected].
We look forward to seeing you all there!
19th Circuit Grievance Committee Openings
There are currently 3 attorney vacancies on the Grievance Committee that meets in Stuart between
now thru April. Eligibility: attorney in good standing located within the circuit according to their official bar
record and have been in practice at least 5 years. If interested, email John Stewart at [email protected]
with your interest or any questions.
25
T
S
B
- F
2015
PROBATE, TRUST & GUARDIANSHIP COMMITTEE
Looking Forward to Another Great Year For Our Committee!
The next Probate, Trust & Guardianship Committee meeting will be held from
12:00-1:00 p.m., February 12, 2015, at the offices of Fox, Wackeen, et al. (The
Tower Building at Willoughby Commons, 3473 SE Willoughby Boulevard in
Stuart.) Lunch will be provided as usual. If you plan on attending, please RSVP to
[email protected] by February 9th at the latest.
Meetings will be the second Thursday of every other month; please mark your
calendars for our next meeting on April 9, 2015.
JUSTICE TEACHING
ABOUT JUSTICE TEACHING...
For information about Justice Teaching, please contact
Judge Roby at: 772-288-5560, [email protected] or visit the website at:
http://www.justiceteaching.org.
We look forward to working/teaching with you!
DESERVES OUR RESPECT
We know that achieving more in the community
begins with the people who belong to it. That’s
why we’re proud to support the Martin County Bar.
Stop by any branch, phone
1-877-Call-PNC or visit pnc.com.
©2011 The PNC Financial Services Group, Inc. All rights reserved. PNC Bank, National Association. Member FDIC.
ACHIEVEMENT is a registered mark of The PNC Financial Services Group, Inc.
26
COMMSERV AD JUN 2010 012
T
S
B
- J
2015
T
S
B
-F
2015
1800 South Australian Avenue, Suite 400, West Palm Beach, FL 33409
27
27
Stuart‡West Palm Beach‡Boca Raton
325 South East Ocean Boulevard, Stuart, Florida 34994
Rodney Romano‡ Ronald Alvarez‡ Theodore Deckert‡Gary Dickstein
Stephen Fischer‡ Frederick Hazouri‡Patrick Massa‡Amber McMichael‡James Munsey
Kevin O’Brien‡ Robert Ponzan‡Patti Velasquez‡Richard Wennet ‡Louis Williams
‡‡ZZZPDWUL[PHGLDWLRQFRP
T
S
B
-F
2015
SMALL AND SOLO PRACTICE COMMITTEE
The Small & Solo Committee would like to thank Marty Holleran for his exceptional
CLE presentation given last month on STRATEGIES TO AVOID ERRONEOUS
DECISIONS AT MEDIATION AND ELECTING TO PROCEED TO TRIAL.
Additionally, If you have a suggestion for a speaker or topic that will appeal to Small
& Solo Practitioners, please email me at [email protected].
We would like to wish everyone a Happy and Healthy 2015!
th
Save the Date!
The 4 District Court of Appeal’s 50th Anniversary Celebration
Saturday, November 14, 2015 (6:00 p.m.)
at
Kravis Center for the Performing Arts
701 Okeechobee Boulevard in West Palm Beach, FL
To purchase tickets, reserve a table, or become a sponsor, please contact
Jack Aiello, Esq. at [email protected]
Your Local Elder and Special Needs Law Team
Nicola J. Melby
Donna R. McMillan
Certified Elder Law Attorney
Master of Social Work
by the National Elder Law Foundation
Attorney
and the Florida Bar
[email protected]
[email protected]
2400 S.E. Federal Highway, 4th Floor • Stuart, FL 34994
(772) 286-1700 • Fax (772) 283-1803
www.McCarthySummers.com
Integrity. Dedication. Solutions.
Elder Law
Special Needs Trusts
Medicaid Planning
and Applications
Long Term Care Planning
Estate Planning
Wills & Trusts
Probate
Guardianship
Veterans’ Benefits
LADY LAWYERS COMMITTEE
Lady Lawyers
Luncheon!
There has been some
interest in rekindling the
Lady Lawyers Luncheon.
If you would be interested
in attending and have
any feedback on better
dates and/or locations,
please contact Donna DeMarchi at
[email protected] or call her at
772-287-2600.
29
T
S
B
- F
2015
ALTERNATIVE DISPUTE RESOLUTION COMMITTEE
WE MEDIATED, WE SETTLED, AND NOW WHAT?
Submitted By: Debi Beard
You know the scenario. It is Friday morning. 11:00 a.m. You are
exhausted. You mediated with your client Abby for ten and a half
hours yesterday. You didn’t get home until almost 9:30 last night.
Not exactly sure why it lasted so long, are you? It was really a fairly
uncomplicated divorce. Your CPA expert was well prepared. She was
a little cranky, but she is like that sometimes.
You woke up starving. All of you missed lunch and dinner yesterday.
Why? You caucused the whole time. You talked about all kinds of
things with Abby and your CPA. But food was not one of the subjects. You had plenty of time to eat.
Alan Scott
Chair
Actually, you are not completely sure that Abby understood all of the tax ramifications of the settlement. The
CPA tried to explain them, but Abby just kept crying.
She was so emotional throughout the whole mediation. She acted almost like she was surprised that she
was getting divorced.
How could that be? She knew her husband had a girlfriend for several months.
You just wished he was more interested in the two children. Why did he keep insisting on a 50% access
schedule with them? Oh well, when Abby acquiesced on that issue, settlement became a reality.
Maybe you should call Abby this morning and see how she is doing. No. Why stir the pot? You don’t want
to hear her complain of another thing!
The phone rings. It is Abby, and she keeps calling herself Abigail. Almost as though we are no longer
friends. She is furious. She keeps saying, “Why did you make me sign that awful agreement? It is horrible.
You have to do something!” Oh no, what can you do? Well, call the mediator and see if she will wait until
Monday before e-filing it. The mediator’s receptionist answers and says that she has already deposited the
checks the parties gave the mediator and the mediator is out of town until Monday. She was given strict
orders to e-file it today, Friday.
Okay, okay. Don’t panic. Call opposing counsel and see if her client would voluntarily make the requested
changes. Opposing counsel, in a deadpan fashion, says “NO.”
Well, maybe they would agree to come back to mediation and rework these issues. “NO,” says opposing
counsel, who reminds you that the final hearing has been set for next Wednesday.
Now get busy. File the motions necessary to have the agreement set aside. On what basis? Ask for an
expedited hearing time. Look at your calendar. You have a hearing on another case at the same time the
final hearing has been set. You can’t be in both places at the same time.
Continued On Next Page . . .
30
T
S
B
-F
2015
Continued From Previous Page . . .
Everything is falling apart, and just to make things worse, Abigail has told you that she will not pay you for
all of that wasted time in mediation and certainly not for the time it is going to take you to “fix” everything.
Well, hopefully this is an extreme situation and not one that many experience, but parts of it probably do ring
true. How can this have been avoided, if at all?
I know you are sick of hearing it, but PREPARE, PREPARE, PREPARE! How? You have read so much
advice about being prepared, but the problem is you don’t always have enough time to do it all.
That is the first issue. NEVER set your mediation date until you know that you have sufficient time to
prepare your client and your experts. Decide early on who will be attending mediation. If you are asking
that a family member or friend attend, talk to your opposing counsel ahead of time, so your client will know
if that person will be permitted to attend.
Start a checklist of everything you need to discuss with your client and all documents, if any, that you want
to bring. Send it to your client, and ask your client to prepare a checklist of her questions.
Ask your client to organize the issues in terms of importance to the client. Is the number of overnights more
important than the amount of alimony? What if your client does not have enough money to pay for health
insurance?
Talk to as many outside experts as possible, long before the mediation. If you and opposing counsel cannot
agree on the value of real estate, maybe you can agree to a realtor who will do a comp analysis for you.
What exactly is your CPA being hired to do? Make sure that she is fully advised and provided with all
necessary documents far in advance of mediation. ALWAYS have your client meet with all of your experts
before mediation. Build the trust factor between them.
Now, schedule your meetings with your client. Show your client the finalized checklist of issues to be
discussed. Look at your client’s list of questions to make sure all have been answered. Talk about the
ranges of hours for child access and the ranges of money for support and attorneys’ fees. Know ahead of
time what your client is willing to pay or to accept.
Meet your client early on the day of mediation to help her with the jitters and last-minute questions. Prepare
a proposed mediation agreement and bring it with you even if there are blanks in it, which will be negotiated
at mediation. Let her see what a final agreement might look like.
If you settle at mediation, take the time to fully explain all of the terms and confirm that your client fully
understands them. Advise your client that it is solely her decision alone as to whether she wants to sign.
You have been her guide and her educator, but the final decisions rest with your client.
Although not impossible, advise your client that once she executes the agreement, it rarely can be set aside,
so it is important that she is in full agreement before signing.
ALWAYS eat during long meditations. The blood sugar drop only leads to confusion, which, as we all know,
leads to blame, and you will be the one blamed for any part the agreement she doesn’t like.
And hopefully, Friday morning is easy, gentle, and topped off with your favorite cup of coffee.
31
T
S
B
- F
2015
PRO BONO COMMITTEE
TO: Members of the Martin County Bar Association
FROM: Don Isaac, Executive Director, FRLS
RE: Client Service Priorities
I am writing to members of our judiciary, attorneys and social
service providers in the circuits we serve to obtain your input in
our priority setting process, through which we will decide what
types of cases receive the highest priority and resources from
FRLS over the next three years.
Priority-Setting Process
Florida Rural Legal Services conducts periodic assessments of the civil legal needs of low income
people in our services areas in an effort to best address those needs with our limited resources.
To that end, we attempt to poll clients, private attorneys, judges, government agencies, private
groups and staff as to their assessment of the frequency and importance of various civil legal
problems to people in poverty. We have designed the enclosed form which is also available
on survey monkey at: https://www.surveymonkey.com/r/FRLSsurvey.
Our current priorities, based on our previous needs assessment, are as follows:
High Priorities: Housing; Employment; Education; Income Maintenance; Individual Rights; and
Consumer.
Other Priorities: Wills, Advance Directives and Probate; Health; Community Development;
Immigration; and Family Law.
We value your input, which you can make either by completing the online survey or writing a letter
in your own words. Either way, your opinion will be considered, but it will be easier to incorporate
your thoughts into an aggregate of all responses if you use the form or online survey. Deadline:
February 16, 2015.
Thank you for your assistance!
Congratulations Board Certified Attorneys!
Board certification recognizes lawyers’ special knowledge, skill and proficiency in various areas of
law and professionalism and ethics in practice. A lawyer who is a member in good standing of The
Florida Bar and who meets Supreme Court prescribed standards may become board certified in one
or more of 24 fields of practice. Nearly 4,700 of Florida’s 100,000 lawyers are board certified, and
only these lawyers may use the terms "specialist," "expert" or "B.C.S." for Board Certified Specialist
when referring to their legal credentials.
Board certification is a rigorous process; Not all qualified lawyers are board certified, but those
who are have taken the extra steps to have their competence, experience, and professionalism
evaluated. For more information, visit floridabar.org/certification or contact The Florida Bar’s Legal
Specialization & Education Department at 850-561-5842.
MCBA members who receive 2015 Board Certification should let us know, so that we can properly
announce your accomplishment!
32
T
S
B
-F
2015
YOUNG LAWYERS DIVISION
YLD UPCOMING EVENT
“Behind the Scenes of the Martin County Courthouse”
YLD is planning a “Behind the Scenes” tour of the Martin
County Courthouse this Spring. Refreshments will be
served! Please look for details in next month’s issue of The
SideBar.
If you have program or topic suggestions for YLD,
please contact us at niki@stonelawfl.com or pediv@
flainjurylawyer.com.
The MCBA Wishes You a
Sweet Valentines Day!
We have everything your practice needs.
• Business Checking Choices
• Business Lending Solutions
• FREE Access to TD Bank
BusinessDirect Online Banking
• Longer Hours & Weekends
to Fit Your Schedule
• TD EscrowDirect – 24/7 Online Access to
Your Escrow Accounts
To learn what TD Bank can do for your
practice, contact Nicole Hibbs, Treasure Coast
Business Banker & Relationship Manager at
1-772-828-9739 or [email protected], or
connect to www.tdbank.com/smallbusiness.
TD Bank, N.A. | Some fees and restrictions may apply. Fees may apply for optional services. Please see your TD Bank BusinessDirect Account Agreement for more details. Loans subject to credit approval. | Equal Housing Lender.
110516.1-LM-C-FL13_Martin_Co_Bar_8x4.75.indd 1
33
3/20/13 11:36 AM
T
S
B
- F
2015
Scholarship Committee
Scholarship Funding At No Cost To The MCBA!
The MCBA has partnered
with TD Bank to benefit
our Scholarship Fund. If
you, your family or any
friends already have an
account with TD Bank,
our Scholarship Fund will
be credited $10 from the
bank for each when our
code (AG235) is provided to
them. Note: No Accounts
Are Linked to the MCBA nor do we have
any access to any member accounts. If
a new account is opened, our Scholarship
Fund receives a $25 credit (depending on the
account type, you may get the credit too)! This
is a win-win for everyone! Contact Michelle at
[email protected] for
more information.
Affinity Membership Program
Support your organizations’ fundraising efforts by joining today. We’ll
make an annual contribution based upon the activity of participating
members TD Bank accounts once program requirements have been met.
For more information, visit your local TD Bank
or call 1-888-751-9000.
“I’m Mike Grieco From Jaguar
Treasure Coast. We’ll Exceed
Your Expectations!
I Guarantee It.”
A LEAP AHEAD
OF ITS CLASS
NEW 2014 JAGUAR
AWD
XJL
MSRP
88,290
$
BUY FOR ONLY
66,991
$
STK#
# JA
JA1450
JA1
450
50
OFFERS PLUS TAX, TAG, TITLE AND DEALER
FEE. MSRP IS $88,290. BUY FOR ONLY
$66,991. OFFER EXPIRES AT MONTH’S END.
SEE DEALER FOR DETAILS.
J A G U A R
4771 S US HW Y 1, FT. PIERCE
34
T R E A S U R E
772.293.0400
C O A S T
W W W.T CJAGUAR .COM
C e n t e r S t a t e B a n k ’s
L . A . W. S e r v i c e Fo r Yo u r P r a c t i c e
CenterState Bank focuses on professionals and business owners. We have designed L.A.W Service (Lawyer’s Automated
Wire System) to help you meet your practices growing financial needs. Call us and find out how many ways we can help a
professional practice like yours!
Here is what L.A.W. can do for you!
• Automated confirmation for any wire transfers
• E-mail sent to office manager for wire transfer
• Provides date, beneficiary information and a tracking number
• Template format to allow for repetitive recipients
• Uses ABA confirmation tables to reduce errors
• Interfaces with our on-line wire transfer system
• Acceptance of fax requests for outgoing wires
• Call back to verify authenticity
Randy Pennington
George Haley
David Peters
772-426-8133
772-426-8155
561-354-4200
BUSINESS & PROFESSIONAL BANKING • INVESTMENT MANAGEMENT SERVICES • CASH MANAGEMENT • RESIDENTIAL MORTGAGES
2400 SE Monterey Road
Stuart, Florida
772-426-8100
35
250 S. Central Blvd
Jupiter, Florida
561-354-4200
www.centerstatebank.com
909 SE Fifth Avenue
Delray Beach, Florida
561-665-4200
T
S
B
- F
2015
BANKRUPTCY COMMITTEE
A 2014 COURT DECISION AFFECTING THE POWERS OF BANKRUPTCY COURTS
Executive Benefits Insurance Agency v. Arkison A basic principle of constitutional law is that the power of federal courts is controlled,
sometimes quite strictly, by Article III. They have limited, not open-ended, authority. Off
and on over the past three decades, the Supreme Court has been an energetic guardian
of those limits. The issue here was how much leeway a bankruptcy court has in deciding
cases based on how the case is posed (core or non-core) and whether the litigants
can “waive” constitutional limits of the bankruptcy courts authority under article III of the
Constitution.
On June 9, 2014 the U. S. Supreme Court issued a unanimous decision, holding:
“When, under the reasoning of Stern v. Marshall, the Constitution does not permit a bankruptcy court
to enter final judgment on a bankruptcy-related claim, the relevant statute nevertheless permits a
bankruptcy court to issue proposed findings of fact and conclusions of law to be reviewed de novo
by the district court.”
PLAIN-LANGUAGE SUMMARY: Bankruptcy courts are not supposed to decide disputes in which the
bankrupt is trying to recover money from someone who is not a creditor of the bankrupt. Congress said
that they could, but the Supreme Court held a few years ago in a case called Stern v. Marshall that the
Constitution prohibits this. What happened here is that the bankruptcy court nevertheless decided the case.
When Stern came down, the district court responded by looking over the case from scratch (“de novo”).
The Supreme Court says that if the district court reviews the case “de novo,” then it is no problem that the
bankruptcy court decides the case in the first place.
In essence, I believe the result here had little impact on a Bankruptcy Courts authority in regards to “related
to” issues; however it goes to show how complex bankruptcy law can get, when a topless dancer and
actress loses out in her bid to claim tens of millions of dollars from the estate of a Texas oil tycoon to whom
she was briefly married.
Nevertheless, Stern‘s actual importance as a bankruptcy decision is hard to exaggerate, as is Executive
Benefits, because any significant change in a bankruptcy court’s authority would have far reaching effect
throughout the Federal system. As pointed out by Justice Alito, such a restriction could affect Federal
Magistrates who absorb a large load on behalf of Article III Judges. A restriction of authority there could throw
the entire system into disarray.
Moreover, such a change could open the door to many challenges trying to piggy back on such a move. For
those reasons, Executive Benefits appears to be a decision intended to soften the potential impact of Stern.
Continued On Next Page . . .
36
T
S
B
-F
2015
Continued From Previous Page . . .
2015 CALENDER
Feb 5-7, 2015
Feb 19, 2015
March, 2015
April 23-26, 2015
May 8-10, 2015
July 23-25, 2015
ABI Caribbean Insolvency Symposium
BBA (SDFL) Dinner Meeting
Alexander Paskay Memorial Bankruptcy
Seminar
Annual NACBA Convention
BBA (SDFL) Annual Retreat
ABI Southeast Bankruptcy Workshop
Westin Grand Cayman Hotel
Conrad Miami, FL Hotel
Hilton Downtown Tampa, FL
Chicago Marriot (on the “MILE”)
Hyatt Regency/Coconut Grove
Amelia Island FL Ritz Carlton
Need more information?
Contact Jon L. Martin at (772) 419-0057 or [email protected].
Can You Help The MCBA?
Spring Food Drive: The MCBA is willing to facilitate food collection for local Food Banks and
local Food Pantry’s if we can get a member to agree to coordinate the effort. Many “snowbirds” head back up north in April and May and it would be a win-win for the food pantry’s who
serve those in need as well as help with “spring-cleaning” for seniors on the move. If you are
interested, contact Michelle at 772-288-6245.
Do you have a speaker recommendation? If you would like to suggest a speaker for our 201516 Monthly General Meetings, please email ([email protected]) the
following information: Speaker name, contact information & suggested topic along with your
contact name. Additionally, please provide contact information for at least 2 references who
are known to you who have heard the speaker present the topic.
2015 JUDICIAL NOMINATING COMMISSION NOMINATIONS TO BE MADE
Judicial Nominating Commissions: One lawyer vacancy for each of
the 26 JNCs. The Florida Bar has the opportunity to nominate three
lawyers for each Judicial Nominating Commission to the Governor for his
appointment. Each appointee will serve a four-year term, commencing
July 1, 2015. Applicants must be engaged in the practice of law and
a resident of the territorial jurisdiction served by the commission to
which the member is applying. Commissioners are not eligible for state
judicial office for vacancies filled by the JNC on which they sit for two
years following completion of their term.
Applications must be received no later than 5:30 p.m., March 2, 2015, in the Executive Director’s
office of The Florida Bar (651 East Jefferson Street, Tallahassee, FL 32399-2300). Persons
interested in applying for any of these vacancies may download the proper application form
(there is a specific JNC application) from The Florida Bar's website, www.floridabar.org, or call
Bar headquarters at (850) 561-5757 to obtain the application.
37
T
S
B
- F
2015
Susan B. Jacobson, L.M.H.C.
► Qualified Expert Witness
in Family and Criminal
Courts
► Nationally Certified
Custody Evaluator
► Nationally Certified
Parenting Coordinator
► FL Supreme Court Certified
Family Mediator
► Fellow in Psychotherapy
► Collaborative Law Mental
Health Professional
Serving Martin, Palm Beach and Broward Counties
www.f-fc.com
561-558-1342
Personal Injury
Trial Attorney
J
O
S
S
O
S
L
S
C
BOARD CERTIFIED CIVIL TRIAL LAWYER
S
I
,
,
R
. N D
- -
.
.
E
.
SCHWED, ADAMS, SOBEL & MCGINLEY
561-694-6079
[email protected]
Offices in Palm Beach Gardens and Stuart
38
C
:C
G
(772) 288-4357
@
.
0RQGD\
7XHVGD\
&DQRH7ULS
23
Flag Day
)$:/%RDUGmeets
@ Sailer’s Return
(Noon)
25 Family Law
Committee Meets
(noon)
Ash Wednesday
18
Inn of Court meets
@ MC Courthouse
(5:30 p.m.)
11
4
26
Chinese New Year
19
Probate, Trust
Guardianship Comm.
Meets (Noon)
Trial Lawyers Comm.
Meeting (Noon)
12
5
7KXUVGD\
27
Michael C. Heisey
Investiture (4:00 p.m.)
@ SLC Courthouse
.DQH&HQWHU11:45 am
2015 Directory Pick-up
20 MCBA Luncheon @
13
Investiture of Victoria
Griffin @ Indian River
Courthouse (4:00 p.m.)
6
)ULGD\
28
21
&DQRH7ULS
9DOHQWLQH¶V'D\
14
7
6DWXUGD\
B
March 7, 2015: MCBA v. PBCBA Softball Challenge
March 25, 2015: FAWL CLE Luncheon
May 16, 2015: Annual Installation Banquet
October 30, 2015: 19th Circuit Bench Bar Conference
November 14, 2015: 4DCA 50th Anniversary Celebration at Kravis
24
Officers’ Meeting @
Noon
17
10
3
:HGQHVGD\
S
6$9(7+('$7(6
22
/$67'$<72
5693)25
/81&+(21
FRLS Survey Deadline
3UHVLGHQW¶V'D\
16
15
Deadline for
Library Survey
Groundhog Day
9
2
8
SideBar Articles Due
1
February, 2015
6XQGD\
T
-F
2015
39
MARTIN COUNTY BAR ASSOCIATION
PO BOX 2197
STUART, FL 34995-2197
Please Join Us for MCBA’s February 20th CLE Luncheon Meeting
When:
Where:
Menu:*
Friday, February 20, 2015 (11:45 a.m.)
Kane Center, 900 SE Salerno Road, Stuart
Asian salad, teriyaki chicken with steamed vegetables, fried rice, fruit cobbler.
Vegetarian option upon request at RSVP only will include no chicken as part of the entree.
*(Please indicate vegetarian/specialty meal if needed when you RSVP.)
Speaker: Fourth District Court of Appeal Judge Robert M. Gross
1 General CLE
CLE:
RSVP:
RSVP: No later than Monday, February 16th - By 5:00 p.m.
(772) 220-8018 or via [email protected]
There is no charge for MCBA members. Guests are welcome to attend.
A $25 guest fee may be paid at the luncheon.
RSVP required for members and guests.
To keep costs down, we are only having meals prepared for the number
of MCBA members and guests who RSVP.
We would love to see you but need to know you are coming! Please RSVP.
The 2015 Legal Directory is Here! Members can pick up theirs at the luncheon!