LAWYERTHE HILLSBOROUGH COUNTY BAR ASSOCIATION TAmpA, FLORIdA | NOV - dEC 2018 | VOL. 29, NO. 2
THe HIllSBoRoUGH coUNTY BAR ASSocIATIoN LAWYER Nov - Dec 2018 | vol. 29, No. 2
divisions features & events 13 Congratulations to the 2018-19 Bar leadership institute Class 14 Congratulations to neW Bar adMittees 16 speCial feature: supporting one another in the legal CoMMunity 8 23 ConstruCtion laW 3 reClaiMing a sense seCtion lunCheon 14 of norMalCy 26 thanks to all our foX 13 Editor’s Message by Ed Comey ask-a-laWyer Volunteers! 4 What Can the hCBa do for 30 fall MeMBership lunCheon you? giVe the BenCh Bar ConferenCe a try 34 22nd annual BenCh Bar HCBA President’s Message ConferenCe, MeMBership by John A. Schifino lunCheon & JudiCial reCeption 6 the ColleCtiVe 49 health Care laW YLD President’s Message seCtion lunCheon Jason Whittemore 53 senior Counsel lunCheon 8 Barry Cohen’s WelCoMes Judge BlaCk 16 lasting legaCy Executive Director’s Message by John F. Kynes 10 seeking JustiCe through ConViCtion reVieW From the State Attorney by Andrew H. Warren 12 the Marriage of dependenCy Court & autoMation: a Meaningful pair 30 53 From the Thirteenth Judicial Circuit Chief Judge Ronald Ficarrotta
about the Cover This issue features a photo commemorating Tampa’s own famous historical industry, the cigar industry. The photo shows an interior view of the Cuesta-Rey Cigar Company, taken in Ybor City in 1929. Note the lector reading from the raised platform at the right. Historically, lectors or readers in a cigar factory entertained workers by reading books or newspapers aloud. Ybor City was founded as an independent town in 1885 by a group of cigar manufacturers led by Vicente Martinez-Ybor and was annexed by Tampa in 1887. Ybor City continued to grow and prosper through the 1920s when this photo was taken, by which time its factories were producing almost half a billion hand-rolled cigars every year, giving Tampa the nickname of “Cigar City.” The photo is part of the Burgert Brothers historical photograph collection, which chronicled life in the Tampa Bay area from the late 1800s to the early 1960s. Photo used with permission from the State Archives of Florida online Florida Memory collection.
NOV - DEC 2018 | HCBA LAWYER 1 seCtions Committees 20
40 24 © Can Stock Photo / bburgess © Can Stock Photo / 4774344sean
© Can Stock Photo / alphaspirit 50 the eVolVing fiduCiary 24 neWs flash: diVersity standard for efforts are still needed 18 lessons on pleading, Broker-dealers in the legal profession WaiVer, and trial By Consent Securities Section Diversity Committee froM the seCond dCa by Michael Mariani by Sumayya Saleh Appellate Practice Section by Jared M. Krukar 52 the story of Magna Carta 42 honoring our VtC Senior Counsel Section CoMMunity heroes 20 all the Ways to CollaBorate by Thomas Newcomb Hyde Military & Veterans Affairs Committee Collaborative Law Section by DJ Reyes by Adam B. Cordover 54 tips on BeCoMing a profitaBle solo or 22 aCCrual reality – When sMall firM praCtitioner a ClaiM arises under Solo & Small Firm Section a surety Bond by Elizabeth Miller Construction Law Section by Angie M. VandenBerg 55 a neW MeChanisM for gain deferral 38 Court reaffirMs use Tax Law Section in CoMMerCe test by Steven D. Shapiro for foreign Brands Intellectual Property Section 56 uBers, lyfts and taXis - 42 by Dineen Pashoukos Wasylik oh My! Trial & Litigation Section 40 anti-tattoo poliCies May by Marc J. Semago in everY issue trigger title Vii liaBility Labor & Employment Law Section 11 neW hCBa MeMBers by Matthew S. Perez 17 100 CluB 41 seCure payMent With a Charging lien 22 saVe the date Marital & Family Law Section 43 Benefit proViders by Paul S. Maney 58 around the assoCiation 44 tenants Can reduCe sales taX With targeted donations 59 Jury trials Real Property Probate & Trust 59 Classified ads Section by Josh Podolsky and 41 Derek Larsen-Chaney © Can Stock Photo / rtbilder 59 adVertising indeX
THe HIllSBoRoUGH coUNTY BAR ASSocIATIoN editor offiCers ed Comey president: John schifino assistant editor president-elect: grace yang; immediate past president: gordon hill Maria ramos secretary: scott stigall; treasurer: robert J. scanlan LAWYER executive director eX-offiCio John f. kynes Chief Judge ronald ficarrotta; Judge frances M. perrone, amy s. farrior chester H. Ferguson law center direCtors: 1610 N. Tampa St., Tampa Fl 33602 adVertising alex Caballero Vivian C. hodz amanda M. uliano Telephone (813) 221-7777 pr/Communications director Victoria n. ferrentino anthony d. Martino Jason k. Whittemore www.hillsbar.com stacy Williams paige a. greenlee Cory person [email protected] (813) 221-7779 Matthew hall Jacqueline simms-petredis
(ISSN 1553-4456) THE HILLSBOROUGH COUNTY BAR ASSOCIATION Lawyer is published six times per year by the Hillsborough County Bar Association. Editorial, advertising, subscription, and circulation offices: 1610 N. Tampa St., 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 St., 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.) 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 expressed in 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.
2 NOV - DEC 2018 | HCBA LAWYER EDITOR’S MESSAGE Ed Comey - Law Clerk to U.S. Bankruptcy Judge Michael G. Williamson
reclaiming a sense of normalcy
thank you to all the hCBa members who are doing their part to help our veterans reclaim a much-deserved sense of normalcy.
“I was up all night with severe nerve or phantom pains. words to express my gratitude for their service. So when Let me tell you, you shouldn’t feel pain in body parts that I was done, I confess feeling a bit satisfied that I had you no longer have.” done my part. That was a tweet I stumbled across a few days ago. In But after reading SSgt. Jones’ tweet, a “thank you for fact, I read it, ironically enough, just hours after waking your service” card hardly seems enough for a veteran who up complaining about the awful night’s sleep I had feels pain in body parts he no longer has. And it’s not just gotten because my oldest daughter had decided to sleep the physical injuries taking their toll on veterans. at the foot of my bed, keeping me from stretching my According to a recent study by the American Psychiatric legs out. The tweet was by retired Marine SSgt. Johnny Association, more than 300,000 veterans of the wars in “Joey” Jones. Afghanistan and Iraq have been diagnosed with post- SSgt. Jones, a bomb technician, lost both his legs eight traumatic stress order, a number that surely undercounts Iyears ago in a bomb blast while serving in Afghanistan. the number of veterans who suffer from PTSD. Want to On August 6, 2010, SSgt. Jones was defusing bombs in hear a more startling — and heartbreaking — statistic? a bazaar to protect In 2012, more military Afghan civilians, when deaths were caused by he stepped on an suicide than combat. improvised explosive That’s why veterans device, triggering an don’t want my greeting explosion that resulted card or a “thank you in him losing both his for your service” legs — one below the column, although I’m knee and the other sure they’d appreciate above — and suffering the sentiment. They severe damage to want their life back. both wrists and his Recently SSgt. Jones right forearm. was kicked off a ride at After more than 20 Six Flags, after walking surgeries and two up an enormous hill, years of grueling because he didn’t have rehab at Walter Reed © Can Stock Photo / astrozombie “real” legs. In talking Medical Center, SSgt. about his experience, Jones is walking again with the help of prosthetic limbs. SSgt. Jones said, “There are thousands and thousands of Today, he devotes his life to making life easier for our us who are in this situation because of our service to our wounded warriors. country. We’re just trying to reclaim a sense of normalcy.” After reading SSgt. Jones’ tweet, I couldn’t help but Thank you to all the HCBA members who are doing their feel a bit guilty. A few months ago, as part of a work part to help our veterans reclaim a much-deserved sense retreat, I helped write greeting cards to servicemembers of normalcy. serving overseas. It wasn’t easy coming up with the right
NOV - DEC 2018 | HCBA LAWYER 3 HCBA PRESIDENT’S MESSAGE John A. Schifino – Gunster
What can the hCBa do for you? give the Bench Bar Conference a try
thank you to steve yerrid and the yerrid law firm for stepping up as our diamond sponsor once again, and thank you to all of our sponsors for supporting the Bench Bar Conference.
n October 3, 2018, the HCBA hosted its Skills in Criminal Cases. During the civil session, Chris 22nd Annual Bench Bar Conference, Knopick, Joe Varner, and Brad Kimbro led a discussion membership luncheon, and judicial on preparing for depositions, taking depositions, and reception. This year proved to be an managing difficult situations during depositions. On the exceptional conference with over 400 criminal side, Lynn Goudie and Kim Kohn led the lawyers and judges attending the CLE programs (our most discussion on preparing for and taking a deposition in the ever), 550 attending our luncheon (a sellout), and 250 criminal arena. These five seasoned trial lawyers provided Oattending the judicial reception (again, our most ever). tremendous insight, tips, and suggestions that proved The day began with two break-out sessions — Building Deposition Skills in Civil Cases and Building Deposition Continued on page 5
4 NOV - DEC 2018 | HCBA LAWYER HCBA PRESIDENT’S MESSAGE John A. Schifino – Gunster
Continued from page 4 Following lunch, dozens of judges took time out of their busy schedules and participated in the HCBA’s informative to all attending the sessions, including the annual “View to and From the Bench” session. most experienced conference attendees. Conference attendees then had the choice to attend one After the morning sessions, Professor Luis J. Virelli, III, of two sessions. During the first, “Deconstructing Jury a professor at Stetson University College of Law, Decision Making,” former jurors answered questions presented the always-popular “Review of the U.S. about their courtroom experience. Gloria Gomez from Supreme Court.” During his discussion, Professor Virelli Fox 13 News moderated the session and then shared the examined impactful decisions from the U.S. Supreme story on her 5:30 news segment that evening (Thank Court’s previous term, and gave us a heads-up on you Gloria!). important cases to come. This discussion began years ago The second, “Arbitration: Be Careful What You Ask as a small break-out session with the Honorable Michael For,” was moderated by Scott Ilgenfritz, Laura Prather, Allen, then an assistant dean at Stetson. The growing Chris Shulman, and Paul Ullom, four attorneys at the top popularity of this session over the years has made it a of the arbitration game in Florida. They gave a thorough must-see plenary session for all conference attendees. overview of the arbitration process and provided Following Professor Virelli, Dr. Susan MacManus, important tips of the trade. distinguished Professor Emerita with the University of The conference concluded with a plenary session led South Florida, and Florida’s most-quoted political by Professor Charles W. Ehrhardt, Professor Emeritus at scientist, provided a detailed look at the upcoming Florida State University College of Law. Professor election. Among other things, Dr. MacManus dissected Ehrhardt, who authored Florida Evidence, the leading the many proposed constitutional amendments on the treatise on the subject, spoke about impeachment of ballot and discussed the amendments’ many implications. witnesses and effective methods to rehabilitate impeached At noon, 550 judges and lawyers joined us for the witnesses. Professor Ehrhardt is a legal giant in the state HCBA’s second membership luncheon of the year, a sold- of Florida and what a privilege it was to have him join us out event with a busy agenda. After thoughtful at the conference. introductions by Judge Frances Perrone, Chief Judge Ron Thank you to Steve Yerrid and the Yerrid Law Firm Ficarrotta, and Judge Greg Holder, the Thirteenth for stepping up as our Diamond Sponsor once again, and Judicial Circuit honored Rob Williams and Jay Pruner thank you to all of our sponsors for supporting the Bench with its 2018 Professionalism Award. The Hillsborough Bar Conference. (Photos from this year’s Conference and County Bar Foundation also awarded $100,000 to six the full list of sponsors start on page 34.) A special thank local programs that provide assistance to the poor, you also to Judge Samantha Ward and her co-chair, Tom disabled, and disadvantaged in our community, after Palermo, for leading the Bench Bar Conference to new which our keynote speaker, Dr. MacManus gave an easy- heights in 2018. We’re looking forward to more great to-understand explanation of why Florida has become things for our attendees at the 2019 conference. We hope the “swingingest” of purple states in the country. you can make it.
NOV - DEC 2018 | HCBA LAWYER 5 YLD PRESIDENT’S MESSAGE Jason Whittemore – Wagner McLaughlin
the Collective
the Collective is an innovative networking initiative to support Bay area legal services and its mission.
omeone much wiser than me once said that bridge the gap between young civic-minded leaders and there are three gifts in charitable giving: (1) the the established network of BALS supporters who have gift of time; (2) the gift of talent; and (3) the paved the way to promote civil legal aid in the Bay Area. gift of treasure. Ideally, we as young lawyers It also serves as an entryway for young attorneys to aspire to give each of these gifts through pro make their mark and get involved in philanthropy. bono services. The Collective is affordable. For as little as $21 a We all have an obligation to provide support and month (70 cents a day), members and guests receive the Slegal services to members of our community who can’t benefit of bi-monthly happy hour events at local venues. afford an attorney. Because of the unique demands on Not only do members get the opportunity to build their young lawyers, however, we professional network, but often struggle to find the they know their monthly opportunity to donate our contri bution is going time, talent, and treasure to directly toward support - community members most ing BALS’s mission. The in need of our help. When money raised by The given the choice to provide Collective goes to worthy pro bono services or to meet causes such as protecting our commitments to our foster children and our jobs and families, many of senior citizens from us often realize we really don’t have much of a choice. abuse, providing access to health benefits for our veterans, Fortunately, Bay Area Legal Services, a nonprofit law preventing homelessness for families, and protecting firm whose goal is to provide legal support to the most domestic violence survivors. vulnerable members of our community, has come up The Collective is still only in its first year, but its with an innovative networking group that makes it easier success is evident. At the first two events, The Collective for young lawyers to support BALS’s vision of hosted over 75 community members. Although in its eliminating “barriers to justice through high quality legal infancy, The Collective has proven to be a remarkable services, education, and community partnerships.” option for young lawyers willing to use their time, talent, It’s called The Collective. and treasure to support a great cause. The Collective is a networking group geared toward For more information on how you can join the young leaders in the legal community who believe in Collective, please contact Alexandra Pullara, Marketing BALS’s mission and who recognize our fundamental Specialist for Bay Area Legal Services, at (813) 232-1222, duty as lawyers to improve access to justice. For young ext. 156 or e-mail her at [email protected]. You may lawyers, it’s a simple and low maintenance way to also learn more about The Collective by visiting network while promoting legal services for local citizens www.bals.org/support-us/donor-societies/the-collective. in desperate need of legal help. The Collective aims to You can also find The Collective on Facebook.
6 NOV - DEC 2018 | HCBA LAWYER NOV - DEC 2018 | HCBA LAWYER 7 EXECUTIVE DIRECTOR’S MESSAGE John F. Kynes - Hillsborough County Bar Association
Barry Cohen’s lasting legacy
“Barry Cohen’s legal skills were matched only by his willingness to take on the causes of those who have no voice in the judicial system.”
—tampa Mayor Bob Buckhorn
hampion for the underdog. Relentless Cohen’s widow, Barbara, family members and close advocate. Voice for the voiceless. Dedi cated friends eulogized Cohen and talked about his dogged to protecting the most vulnerable. These determination, his generous heart and compassion for are all characteristics that have been used others, and his keen sense of humor. to describe the late Barry Cohen, one of “Barry Cohen’s legal skills were matched only by his Tampa’s legal legends, who willingness to take on the died this past September of causes of those who have Cleukemia at the age of 79. no voice in the judicial Cohen had a larger than system,” said Tampa Mayor life personality and a unique Bob Buckhorn. style all his own — in and “Barry’s love of the law out of the courtroom — and was equally matched by his impact on Tampa’s legal the size of his heart,” community will not soon Buckhorn added. be forgotten. Tampa attorney Steve And no doubt everyone Yerrid talked about Cohen’s associated with the HCBA illustrious legal career and and the Bar Foundation, and some of the memorable all those who visit the cases he handled over Chester H. Ferguson Law the years. Center, will continue to feel “Barry was one of the Cohen’s presence well into finest trial attorneys who the future. ever walked into a criminal That’s because, as I’m courtroom,” Yerrid said of sure most know, a large Barry Cohen with this wife and children at the Chester his close friend. portrait of Cohen hangs in Ferguson Law Center ribbon-cutting in 2008. Yerrid also told those Cohen Hall, the large gathered about the tremen - banquet room named for him at the Ferguson Law Center. dous grace, strength and courage Cohen showed in his Cohen was a one of the strongest supporters of the final days as he battled the disease that ultimately took HCBA having its own building, and he was one of the his life. largest financial benefactors of the project, which was Finally, at the end of the memorial service, they played completed in 2008. a recording of the song “My Way” sung by Frank Sinatra. And his portrait in the Cohen Hall is a constant After the song ended, people started to filter out, and reminder of his dedication to the enduring principles of everyone smiled. fairness and equal justice under the law for all. They all agreed it was a fitting way to end the service, More than 400 people attended Cohen’s memorial and to remember their good friend and a life well lived. service at the Bryan Glazer Family Jewish Community Center in September. Continued on page 9
8 NOV - DEC 2018 | HCBA LAWYER EXECUTIVE DIRECTOR’S MESSAGE John F. Kynes - Hillsborough County Bar Association
Panelists at the “Deconstructing Jury Decision Making” session at the Bench Bar Conference on October 3.
Continued from page 8 Judge Samantha Ward and Thomas Palermo were the co-chairs of the Bench Bar Committee this year, Kudos to everyone involved in the planning of the and the committee spent months planning the HCBA’s 22nd Annual Bench Bar Conference held conference agenda. on Oct. 3, and for making it such a tremendous success. The conference theme this year was: Building Blocks for More than 400 people attended the day-long a Better Practice. conference, which was a record, and hundreds of others Of course, none of this could happen without the enjoyed mingling with their friends and colleagues at the generous support of all the HCBA’s generous sponsors. annual Judicial Reception held at the end of the day. So, thank you to all our sponsors for supporting this Keynote speaker political scientist Dr. Susan wonderful event, and especially our Diamond Sponsor: MacManus from USF spoke to a sold-out crowd of 550 the Yerrid Law Firm. people at the noontime Membership Luncheon. See you around the Chet.
NOV - DEC 2018 | HCBA LAWYER 9 FROM THE STATE ATTORNEY Andrew H. Warren - State Attorney for the Thirteenth Judicial Circuit
seeking Justice through Conviction review
Wrongful convictions are contrary to the very fiber of our criminal justice system.
xperienced prosecutors sometimes sit in a room with convicted criminals who will end up on death row for having committed a heinous murder. What if the conviction was wrong? Last October, I attended a conference where I faced this stark reality. I heard directly from innocent Eindividuals whose wrongful convictions landed them on death row. Prosecutors convicted the wrong person. As a prosecutor who believes so deeply in our system, I found it gut wrenching. Even though our office had
nothing to do with any of the exonerees’ cases, it was © Can Stock Photo / 4774344sean hard not to feel partially responsible. This past April, we brought three death row exonerees to Tampa through an organization called Witness to and heard firsthand the casualties of the criminal justice Innocence (WTI) to share their stories with members of system’s unimaginable mistakes. Mis takes do happen. my office and local law enforcement. We are proud to Despite our Constitutional and procedural safeguards, have been the first prosecutor’s office in the nation to partner with WTI on this important issue. My team saw Continued on page 11
1 0 NOV - DEC 2018 | HCBA LAWYER FROM THE STATE ATTORNEY Andrew H. Warren - State Attorney for the Thirteenth Judicial Circuit
Continued from page 10 not to mention the best efforts of prosecutors and investi gators, wrongful convictions unfortunately exist. Although wrongful convictions are rare, prosecutors still need to take proactive steps to mitigate mistakes from occurring and to fix them when they do. That is why the State Attorney’s Office is establishing WELCOME NEW a Conviction Review Unit (CRU), a specialized section HCBA MEMBERS within the Office to prevent, identify, and remedy August / September 2018 wrongful convictions by conducting fact-based reviews of convicted defendants where plausible claims of Jonathan Allen innocence are raised. These units have emerged over Barbara Baity the past decade, with approximately 35 of them Allison Brandt currently in operation across the country, including Alexa Cline major cities such as Brooklyn, Chicago, and Houston. Antoine D. Daniels How a CRU (a/k/a Conviction Integrity Unit) Joy Ann Demas operates may vary between offices, but the structure Kevin Dewar is generally the same. There is a screening process Michelle Doherty to identify common aspects of wrongful convictions, Bridgette Michelle Domingos such as failure to conduct DNA or other forensic Katelyn Dougherty testing, faulty eyewitness identification, questionable Joleen East confessions, or changed testimony from critical Juan Garcia-Pardo witnesses. Cases that pass the initial screening proceed Andrew O. Gay to review by an attorney, often with the help of an Blain Goff William E. Hamilton investigator or other staff. The review process Kyleen Hinkle essentially involves re-investigating the case, including Sam Houston witness interviews, forensic testing, evaluating existing Dionne Jones evidence, or finding new evidence. The review may be Sharon S. Kelley as narrow as a single issue or as broad as the entire Elizabeth King investigation and prosecution. Sometimes the review Keegan Lathan reaffirms the conviction; sometimes it does not move Kathleen Logan the needle either way; and sometimes it raises serious William Lucius questions about the conviction or even exonerates the Lisa Martin defendant. In those instances, the office would usually Alyssa Milby dismiss the charges. Alex Joseph Mindrup The concept of prosecutors overturning their own Beatriz Maria Miranda convictions may sound odd, but wrongful convictions James Lawrence Nulman are contrary to the very fiber of our criminal justice Lindsey Renard system. They punish the innocent while the actual Eryn E. Riconda perpetrators go free, undermining public safety and Johnny Salgado the integrity of our system. Once we recognize the Aloyma Sanchez incontrovertible truth that our justice system is Catherine Munch Saylor imperfect and that wrongful convictions are a Anthony J. Scaglione Luis Silva consequence of that imperfection, then it becomes a Jack Light Townsend, Jr. moral imperative to do what we can to prevent and Samantha Tracy remedy wrongful convictions. After all, a prosecutor’s Andrew Hart Woodbury job is to seek justice, and that search does not end simply because the case is closed. Our duty to seek justice continues — always.
NOV - DEC 2018 | HCBA LAWYER 1 1 FROM THE THIRTEENTH JUDICIAL CIRCUIT CHIEF JUDGE Judge Ronald Ficarrotta - Chief Judge for the Thirteenth Judicial Circuit
the Marriage of dependency Court & automation: a Meaningful pair
although these may seem like small steps in the right direction, the impact is significant and growing.
arriage can be complicated. Two Peacock to make informed decisions about the cases unique beings merge to complement before her. each other in a meaningful way. Using both FDCIS and JAWS in her courtroom, Sometimes it works out; sometimes it Judge Peacock makes rulings and issues orders in real doesn’t. In the Thirteenth Judicial time. JAWS allows her to electronically sign an order Circuit, we have married two very unique beings: finalizing an oral ruling before the parties leave her dependency court and automation. And the officiant, courtroom. Printed copies are immediately provided MJudge Emily Peacock, makes it work every day in to those in need. This can enable children to receive her courtroom. timely referrals to service The result of this union providers, enroll in is the Florida Dependency school, and obtain Court Information Sys tem necessary medical care. (FDCIS). FDCIS is a Temporary custodians collection of data derived can act swiftly to acquire from the Clerk’s Office, school and medical the state’s Comprehensive records. The need to Case Information System expeditiously adjudicate (CCIS), the Department dependency cases cannot of Juvenile Justice, the be denied. Although Department of Children these may seem like and Families, the state’s small steps in the right Guardian ad Litem direc tion, the impact is Program, and others. It significant and growing. functions operationally in The judges of the conjunction with the Judge Emily Peacock during her FDCIS Presentation dependency divisions are court’s Judicial Automated at the 2018 Child Protection Summit. reviewing the outcomes Workflow System ( JAWS). of this marriage to deter - The goal of FDCIS is mine if such a merger to provide judges uniform, reliable data within allowable would be appropriate for them. timeframes. Because children generally have fewer FDCIS was a collaborative effort of many visionary personal identifiers (e.g., social security numbers, driver’s partners, including Judge Peacock; Angie Smith of our license numbers, etc.) than adults, they can be difficult Office of Court Administration; George Roberts of the to positively identify. But when names and birthdates are Office of the State Courts Administrator; Doug Bakke correlated with positively identified family members and of the Clerk’s Office; and Stephanie Bergen and Tiffany the case histories of those families, the data becomes Short of the Office of the Attorney General. I thank more reliable. Reliable data regarding juvenile them for their dedication and service to the families and delinquency, homelessness, criminal history, and children of our community. dependency history across the state enables Judge
1 2 NOV - DEC 2018 | HCBA LAWYER Congratulations to the 2018-19 Bar Leadership Institute Class
n Justin Bennett n anthony Bradlow n katari Buck n Joshua Coldiron n antoine daniels n Melissa isabel n amanda keller n natasha khoyi n haksoo lee n Jamila little n kendra lyman n kate newton-John n Christian nunez n Brett owens n Matthew parrish n erin rackauskas n ryan reese n abraham shakfeh n Matthew stefany n Jennifer touse n garrett tozier n alicia Whiting-Bozich n andrew Woodbury
NOV - DEC 2018 | HCBA LAWYER 1 3 CONGRATULATIONS TO NEW BAR ADMITTEES thirteen admittees to the florida Bar gathered at the george edgecomb Courthouse on september 21 for a celebratory swearing-in ceremony by the judges of the thirteenth Judicial Circuit. the hon. ronald ficarrotta presided over the ceremony, with the hon. daryl Manning discussing the importance of professionalism. hCBa president John schifino and yld president Jason Whittemore also spoke to the new admittees about the benefits of joining the hCBa.
1 4 NOV - DEC 2018 | HCBA LAWYER Congratulations to all who were sworn in, and thank you to the ceremony’s sponsor:
NOV - DEC 2018 | HCBA LAWYER 1 5 SPECIAL FEATURE Ella Shenhav - Shutts & Bowen LLP
supporting one another in the legal Community
Mark rankin’s kindness and compassion inspires and gives lawyers a good name.
awyers can do amazing things. One lawyer in particular, my partner at Shutts & Bowen LLP, Mark Rankin, has done something truly incredible. On August 16, 2018, Mark donated a kidney to my father-in-law, Mac Wachtler, and saved his life. Mac Wachtler with Mark Rankin Mark didn’t know Mac when he sent a text to the Lnumber on the flyer created by my mother-in-law, Bonnie, Mac Wachtler with Mark Rankin. who was desperate to find a matching donor for Mac, who had been suffering from a degenerative kidney disease for activities, and Mark has given his time generously to years. As the rigorous testing progressed, Mark and Mac various pro bono causes. But only Lgot to know each other, as did our families. On the day of an incredibly selfless and generous the surgeries, we all sat in the hospital waiting room, person could make the sacrifice together with Mark’s wife Lauren Stricker, our colleague that Mark has made for someone at Shutts (and a hilarious and wonderful person), anxiously he didn’t even know. His kindness awaiting news. Both surgeries were successful; Mark has and compassion inspires and gives returned to work, and Mac is recuperating and regaining lawyers a good name. his strength. Our office has always placed a strong emphasis on Author: Ella Shenhav - Shutts & helping the community through pro bono and charitable Bowen LLP
1 6 NOV - DEC 2018 | HCBA LAWYER Hillsborough County Bar Association 100 Club law firms with 100% membership in the HcBA 12th Judicial Circuit Court Gibbs & Parnell, P.A. Morris Law Firm 13th Judicial Circuit Court Givens Givens Sparks, PLLC Nader Mediation Services 2nd District Court of Appeal Gomez & Touger, P.A. Nancy Jacobs, Esq., LLC Adams & Reese LLP Gordon J. Schiff, P.A. Patsko Law Group PLLC Addison & Howard, P.A. Gramling Environmental Law, P.A. Petitt Wolfe Craine Worrell LLC Allen Dell GrayRobinson, P.A. Phillip Baumann, P.A. Alley Clark & Greiwe Greenberg Traurig Port Tampa Bay Ansa Assuncao, LLP Gunn Law Group Ramirez Law Firm Anthony J. LaSpada P.A. Gunster Yoakley & Stewart Rardon & Associates, P.A. Anton Castro Law Harmon,Woods, Parker & Abrunzo, P.A. Richard A. Harrison, P.A. Austin Roe Basquill P.A. Harris and Hunt, P.A. Rieth & Ritchie, P.A. Baccarella & Baccarella, P.A. Harvey Schonbrun, P.A. Robert E. Morris, P.A., Attorneys at Law Baird Law Group Hilary High, P.A. Robert G. Kipp, P.A. Bajo | Cuva | Cohen | Turkel, P.A. Hillsborough County Attorney’s Office Rocke, McLean, & Sbar, P.A. Barbas, Nunez, Sanders, Butler & Hovsepian Hillsborough County Aviation Authority Roig, Tutan, Rosenberg, Martin, & Stoller, P.A. Barker & Cook, P.A. Legal Affairs Department Rotella Legal Group, P.A. Barnett Bolt Kirkwood Long & Koche Hill Ward Henderson Rumberger, Kirk & Caldwell, P.A. Bay Area Legal Services Plant City Holcomb & Leung, P.L. Saady & Saxe, P.A. Bay Area Legal Services Wimauma Hunter Law, P.A. Saxon, Gilmore & Carraway, P.A. Bivins & Hemenway, P.A. Jackson Lewis P.C. Scarritt Law Group, P.A. Boss Arrighi Hoag, P.L. James P. Knox, PLLC Schropp Law Firm Bowes Law Group Johnson & Cassidy, P.A. Scott A. Haas, P.A. Brandon Family Law Center, LLC Johnson Jackson LLC Sessions Fishman Nathan & Israel, LLP Brandon Legal Group, P.A. Jorgensen & Ozyjowski, P.A. Sessums Black Caballero Ficarrotta Brannock & Humphries, PA Joryn Jenkins & Associates, P.A. Sessums Law Group, P.A. Brennan, Holden & Kavouklis, P.A., Attorneys at Law Joyce & Reyes Law Firm Seth Nelson, P.A. Brett Hendee, P.A. Judd Bean Law Shawn Harrison Associates, PLLC Bricklemyer Law Group Jung & Sisco, P.A. Silver & Agacinski Broad and Cassel Keys & Coakley, P.L. Spector Gadon & Rosen Buell & Elligett, P.A. Kynes Markman & Felman, P.A. Stichter, Riedel, Blain & Postler, P.A. Burr & Forman Langford & Myers, P.A. Stolberg & Townsend, P.A. Bush Ross Larson Johnson, P.L. Stoler Russell Keener Verona P.A. Butler Weihmuller Katz Craig LLP Lauro Law Firm Stuart & Strickland, P.A. Caglianone, Miller & Associates Law Offices of Andrew Shein Tampa Bay Elder Law Center Carey, O’Malley, Whitaker, Mueller, Roberts & Smith, P.A. Law Office of Christine L. Derr, P.A. Tampa City Attorney’s Office Carlton Fields Jorden Burt, P.A. Law Office of Christopher T. Abrunzo, PLLC Tampa Law Advocates, P.A. Carman & Bevington, P.A. Law Office of J. Armando Edmiston Terrana Perez & Salgado, P.A. Cheeseman & Phillips, P.A. Law Offices of Jeanne T. Tate, PA The Bleakley Bavol Law Firm Clark & Martino, P.A. Law Office of Michael J. Winer, P.A. The Fernandez Firm Clerk of the Circuit Court’s Office Law Office of Philip S. Wartenberg The Plante Law Group, PLC Cole, Scott & Kissane, P.A. Law Office of Robert M. Geller The Thorpe Law Firm, P.A. Conwell & Kirkpatrick, P.A. Law Offices of Jonathan C. Koch The Women’s Law Group, P.L. Conwell Business Law, P.A. Law Offices of Robert R. Renfroe, P.A. The Yerrid Law Firm, P.A. Cortes Hodz Family Law and Mediation, P.A. Law Offices of Chris E. Ragano, P.A. Thomas & LoCicero PL Culpepper Kurland Law Offices of J. Kevin Carey, P.A. Thompson & Brooks Danahy & Murray, P.A. Lawrence E. Miccolis, P.A. Thompson Legal Center LLC Dandar & Dandar Lennox Law, P.A. Thompson, Sizemore, Gonzalez & Hearing, P.A. de la Parte & Gilbert, P.A. Leo D. Gomez, P.A. Thorpe & Thorpe, P.A. Dixon & Associates Leon & Berg, P.A. Timothy G. Anderson, P.A. Dogali Law Group, P.A. Leslie Reicin Stein P.L. Trentalange & Kelley, P.A. Donica Law Firm, P.A. Lieser Skaff Alexander, PLLC Trombley & Hanes, P.A. Felix, Felix & Baseman Lins Law Group, PA Valkenburg & Velez, P.A. Fernandez & Hernandez, LLC Mac A. Greco, Jr., P.A. Vecchio, Carrier, Feldman & Johannessen, P.A. Fiol Law Group, P.A. Maney, Damsker, Jones & Kuhlman, P.A. Wagner McLaughlin Fletcher & Fischer P.L. Manson Bolves P.A. Walk Law Firm, P.A. Florida Law Group, LLC Marlowe McNabb, P.A. Walters Levine & Lozano Fraser Himes, P.A. McCalla Raymer, LLC Weekley, Schulte & Valdes LLC Freeborn & Peters LLP McIntyre, Panzarella, Thanasides, P.A. Wenzel Fenton Cabassa, P.A. Friscia & Ross P.A. Mechanik Nuccio Hearne & Wester, P.A. Wetherington, Hamilton, P.A. Fuentes & Kreischer, P.A. Meirose & Friscia, P.A. Whistleblower Law Firm P.A. Fulgencio Law Melkus, Fleming & Gutierrez Wiand Guerra King Galloway, Johnson, Tompkins, Burr and Smith Michael D. Fluke, P.A. Wicker Smith O’Hara McCoy & Ford P.A. Gardner Brewer Martinez-Monfort, P.A. Michael P. Maddux, P.A. William A. Knight, P.A. Gaylord Merlin Ludovici & Diaz Mickey Keenan, PA Willis Law Firm, P.A. Genders-Alvarez-Diecidue, P.A. Mike Murburg, P.A. Yanger Law Group, P.A. George & Titus, P.A. Morgenstern & Herd, P.A. Young Scanlan, LLC
TO BE ADDED TO THIS LIST, PLEASE EMAIL A LIST OF ATTORNEYS IN YOUR FIRM TO [email protected].
NOV - DEC 2018 | HCBA LAWYER 1 7 Lessons on PLeaDing, Waiver, anD TriaL by ConsenT from The seConD DCa Appellate Practice Section Chairs: Tom Seider – Brannock & Humphries and Joe Eagleton – Brannock & Humphries
The Derouin opinion is a useful tool for trial and appellate lawyers alike to keep in their respective tool bags. © Can Stock Photo / zimmytws he Second District Court of Appeal recently decided Derouin v. Universal In Derouin, the plaintiff ’s Lesson 4: A specific denial American Mortgage Co., 2018 WL complaint alleged that it had shifts the burden of proof to 3999415T (Fla. 2d DCA Aug. 22, satisfied all conditions precedent. the plaintiff. 2018)1, in which it examined a As the Second DCA noted, the case The Second DCA held that number of general procedural law was somewhat unsettled as to the defendants’ specific denial issues that practitioners at all levels whether the defendants’ answer shifted the burden of proof back will likely encounter. The following needed to “specifically deny” that to the plaintiff bank to prove it is a brief summary of some of the allegation or to raise it as an satisfied conditions precedent lessons contained in the opinion. affirmative defense.4 The Second to foreclosure.10 The plaintiff, Lesson 1: Because a party’s DCA held “we need not weigh in however, failed to present sufficient right to sue is measured by the on the conflict,” because the evidence to prove it complied facts as they existed at the time defendants raised it both ways in with a particular pre-suit meeting of suit, a complaint filed before their answer.5 Thus the defendants requirement incorporated into the a necessary element or event has satisfied their pleading burden. contract at issue (somewhat unique occurred cannot be resuscitated Lesson 3: A plaintiff must file to foreclosure cases but potentially by post-suit activities. a new reply in response to an analogous to other areas of law, In 1929, the Florida Supreme amended answer containing e.g., insurance coverage litigation).11 Court held that “the right of a affirmative defenses, else any The Second DCA held the plaintiff plaintiff to recover must be avoidance is waived. to its burden in this case, reversing measured by the facts as they exist In the trial court, the defendants for entry of an order of involuntary when the suit was instituted.”2 The obtained leave of court and filed dismissal.12 principle, while never overruled, an amended answer with a new Lesson 5: “Trial by consent” is has not oft been repeated by affirmative defense (noncompliance not automatic in the absence of Florida state courts. The Second with conditions precedent).6 a contemporaneous objection. DCA reaffirmed the principle in The plaintiff did not file a new On appeal, the plaintiff argued Derouin. It held that a post-suit offer reply in response to the amended that its unpleaded avoidance was to mediate could not satisfy a pre- answer.7 Yet the trial court tried by consent when it presented suit condition to offer a face-to-face ultimately ruled in favor of the evidence relevant to that avoidance meeting incorporated into the plaintiff based on an avoidance without contemporaneous objection.13 contract at issue.3 of the affirmative defense.8 The Second DCA rejected this Lesson 2: When the law is The Second DCA reversed: theory, holding that failing to object unsettled as to whether a “Because Universal failed to to introduction of evidence that is particular defense should be address the waiver issue by reply also related to a pleaded issue is not raised as a “specific denial” or to an affirmative defense, the trial implicit consent to try an unpleaded an “affirmative defense,” the court could not award Universal safest play is to plead it as both. relief on such a basis.” 9 Continued on page 19
1 8 NOV - DEC 2018 | HCBA LAWYER Continued from page 18 for the article. The deal was struck and here we are. issue.14 The court also held that 2 Voges v. Ward, 123 So. 785, 793 the defendants’ objections at the (Fla. 1929). outset of trial, as well as in post- 3 Derouin, 2018 WL 3999415, at *5. trial memoranda requested by the 4 Id. at *3. trial court, were sufficient to avoid 5 Id. any trial by consent.15 6 Id. at *2. In conclusion, the Derouin 7 Id. opinion is a useful tool for trial and 8 Id. appellate lawyers alike to keep in 9 Id. at *4. their respective tool bags. It collects 10 Id. at *5. and refreshes older principles, 11 Id. at *5 – 6. giving practitioners the opportunity 12 Id. at *7. to raise them anew in future cases. 13 Id. at *6. 14 Id. at *6 – 7. 1 I represented the successful 15 Id. appellants in this appeal, so Appellate Section Chairs Joe Eagleton and Tom Seider approached me to write a brief Author: synopsis for the Lawyer. I agreed so Jared M. Krukar - long as I was authorized to blame them DPW Legal
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NOV - DEC 2018 | HCBA LAWYER 1 9 All the WAys to CollAborAte Collaborative Law Section Chairs: Katherine C. Scott - Harris, Hunt & Derr, P.A. and Alice M. Boullosa - Alice Boullosa LMFT, LLC
Many clients may not want or need our mainstream model of collaborative practice, or they may need more support than our model provides. © Can Stock Photo / alphaspirit
or many of us, collaborative practice violence or other imbalanced families and build successful means a process that power dynamics, or when children collaborative family law practices. involves attorneys, a are facing major health or neutral mental health professional behavioral issues. 1 Ronald D. Ousky, Developing a Fand a neutral financial professional. There is also the option of Range of Collaborative Models: One But are there other ways to collaborative mediation.4 This is Size Does Note Fit All, in Building collaborate? where, instead of using the typical A Successful Collaborative Family Ron Ousky, former president neutrals, a mediator or co-mediators5 Law Practice (Forrest S. Mosten & of the International Academy of are used. Consider this model when Adam B. Cordover eds., 2018). Collaborative Professionals, urges us a client has an aversion to mental 2 Stuart G. Webb & Ronald D. to engage in “flexible team models” health professionals, wants the Ousky, The Collaborative Way To customized to meet each family’s security of long-tested mediation Divorce: The Revolutionary Method unique circumstances.1 confidentiality rules, or simply wants That Results In Less Stress, Lower For example, it all started with an experienced lawyer as a neutral. Costs, And Happier Kids — Without the attorney-only model.2 In this Finally, you may offer unbundled Going To Court (2007). model, each client is represented collaborative services.6 This is 3 Forrest S. Mosten, Collaborative by an attorney. There are no where the clients mainly meet Divorce Handbook: Helping Families neutrals or other professionals. This and work with a neutral mental Without Going to Court (2009). model might be good for families health professional and financial 4 Elizabeth Potter Scully, Mediation in short-term marriages with no professional, and only use the and Collaboration: Harnessing Potential children and few assets and debts. attorneys when needed or at the Synergy, in Building A Successful In parts of California and other end to draft agreements. This Collaborative Family Law Practice places, the two-coach model3 is model works where there are (Forrest S. Mosten & Adam B. Cordover predominant. This is where there fewer resources or the clients eds., 2018). is a neutral financial professional, need less direct legal support. 5 See Adam B. Cordover & Rachel and each client has a separate, In each of these models, both Moskowitz, Co-Mediation to Collaborative aligned mental health professional, clients are represented by an Mediation: A Case Study in Client-Focused or “coach.” It oftentimes will also attorney, and there is a written Dispute Resolution, Commentator involve a neutral child specialist, participation agreement that Magazine who is also a mental health includes a withdrawal clause that (Summer 2018). professional, who speaks directly says the attorneys cannot engage 6 Ousky, supra with children and serves as their in litigation. note 1. voice during team meetings. This Many clients may not want or model may be perfect for families need our mainstream model of Author: Adam B. that need more support, such as collaborative practice, or they may Cordover - Family when there is a severe mental need more support than our model Diplomacy: A health or personality disorder, provides. We can customize these Collaborative when there is a history of domestic and other models to help more Law Firm
2 0 NOV - DEC 2018 | HCBA LAWYER NOV - DEC 2018 | HCBA LAWYER 2 1 aCCrual reality – When a ClaiM arises under a surety Bond construction law Section Chairs: J. Derek Kantaskas – TMD Companies, LLC & Gregg E. Hutt – Trenam Law
While surety bonds are a type of insurance contract, the unique and distinct nature of the surety contract bases the surety’s liability on the liability of the principal. istinguishing suretyship © Can Stock Photo / johnnychaos from insurance takes a herculean effort — even more so when The Lexon case involved bonds But the City waited until October trying to determine when a surety’s governing a 400-plus acre 2012 to sue Lexon for breach of Dobligation is triggered. In Lexon development. In June 2006, contract and for declaratory relief. Insurance Company v. City of Cape Lexon, as surety, issued two Lexon moved to dismiss the City’s Coral, the Second District Court subdivision bonds totaling $7.7 claim as untimely. The trial court, of Appeal differentiated surety million that named the developer however, characterized the bonds as contracts from insurance contracts as principal and the City as the an insurance contract and ruled that by explaining that a surety bond is obligee. In March 2007, the the bonds were not breached until breached when the bond principal contractor for the project stopped Lexon denied the claim. In doing breaches its obligation — not work because the developer so, the trial court rejected Lexon’s when the surety denies a claim. stopped paying on the parties’ argument that because the surety 238 So. 3d 356 (Fla. 2d DCA contract. By June 2007, the bonds are a contract, the principal 2017), review denied, 2018 WL City had stopped performing 3282013 (Fla. 2018). inspections at the property. Continued on page 23
qSave the Dates u November 9, 2018 u April 13, 2019 YLD Annual Golf Tournament, Pig Roast/5K Pro Bono River Run, Stetson Temple Terrace Golf & Country Club University College of Law Tampa Campus
u December 6, 2018 u May 8, 2019 Holiday Open House at the Law Day Membership Luncheon Chester Ferguson Law Center at the Hilton Tampa Downtown
u January 9, 2019 Diversity Membership Luncheon Learn more about HCBA events at at the Hilton Tampa Downtown www.hillsbar.com. StAy ConneCted
2 2 NOV - DEC 2018 | HCBA LAWYER
Continued from page 22 breached the contract in early 2007, thereby rendering the City’s claims time barred. The Second District Court of Appeal disagreed, holding that the five-year statute of limitations for an action based in contract was applicable Construction Law Section Luncheon to the City’s breach of contract claim and that the City’s bond claim accrued on september 20, the Construction law section held their first luncheon of the new when the developer abandoned the Bar year, where they received an informative presentation on construction defect cases project in March 2007. involving roofing. the speaker, lance Manson, who is a senior consultant and registered The Second DCA relied on well- roof consultant at delta engineering and inspection, inc., discussed ways to measure settled law that the surety’s liability to and vet experts for roof construction defects cases, and the investigative tasks required the obligee is based on the liability of its principal. Lexon Ins. Co., 238 So. 3d for each roof system type. Manson also gave examples of various cases that illustrate at 359 (relying on Am. Home Assurance the importance of an expert’s experience and the method of investigative tasks used to Co. v. Larkin Gen. Hosp., Ltd., 593 So. prepare for a successful litigation. 2d 195, 198 (Fla. 1992)). In Lexon, the bonds obligated the principal, the developer, to construct improvements on the project. When the developer failed in its obligation, the City’s cause of action accrued. While surety bonds are a type of insurance contract, the unique and distinct nature of the surety contract bases the surety’s liability on the liability of the principal. The principal’s default “was the act that breached the bonds and started the running of the statute of limitations” — not the City’s demand for damages. Id. at 360. So the statute of limitations began to run in March 2007, when the developer abandoned the project. Suretyship is undoubtedly a difficult area of law to navigate, but the Lexon case further clarifies and provides more certainty as to when a surety’s obligation under a bond begins to accrue.
Author: Angie M. VandenBerg - Moyer Law Group
NOV - DEC 2018 | HCBA LAWYER 2 3 neWs flash: diVersity efforts are still needed in the legal profession Diversity committee Chairs: Marsha M. Moses – Law Offices of Kubicki Draper and Abraham Shakfeh – Shakfeh Law, LLC
training materials and leadership courses focused on how individual lawyers can overcome barriers in the workplace are “only half of the equation.” © Can Stock Photo / 4774344sean any recent articles have highlighted the continued need for diversity and higher standards than their On a local stage, the HCBA inclusion efforts within the legal colleagues; and 70 percent said Diversity Committee actively seeks Mprofession. Mainstream and legal they received less pay than their to interrupt bias and promote publications alike recognize that colleagues with similar experience diversity and inclusion. And the although diversity efforts in the and seniority. The report suggests HCBA believes in partnering with legal field have made some progress, using metrics to encourage fairness programs that share in that vision. the hiring and promotion of those in all facets of employment. It The Diversity Access Pipeline attorneys lag far behind the influx also emphasizes that although an (DAP) is a new initiative in Tampa of women and people of color into organization’s initial efforts may not Bay that tackles this issue head-on. the field. These groups continue to succeed, it should continue to use DAP seeks to promote diversity, face barriers across the spectrum. different methods to gain success. create access, and feed the pipeline The American Bar Association Michele Coleman Mayes, the — one student at a time. The pilot recently issued a joint report from former chair of the Commission, program, executed through the the Commission on Women in and a keynote speaker at the George Edgecomb Bar Association, the Profession and the Minority HCBA’s Diversity Luncheon several identifies diverse law students for Corporate Counsel Association years ago, originally envisioned vigorous training in leadership, titled, “You Can’t Change What the study. She recognizes that mentoring, lawyer wellness, legal You Can’t See: Interrupting Racial although efforts targeted at helping writing, and other essential skills and Gender Bias in the Legal individual lawyers overcome for success. DAP also partners Profession.” The report details the barriers in the workplace are with Bar associations, including the bias women and minority lawyers helpful, they are “only half of the St. Petersburg Bar Association and continue to endure. It offers two equation.” Rather than putting the HCBA, to create leadership toolkits, one for law firms and weight on the individual, she opportunities and mentoring the other for in-house counsel encourages organizations to look relationships, and it provides a departments, to interrupt bias in at their practices and implement $1,500 bar preparation scholarship all aspects of hiring, assignments, concrete measures that disrupt at the end of the program. For more performance evaluations, bias. Notably, Hillarie Bass, the information on compensation, and sponsorship. immediate past president of the DAP, visit www. Although the study confirms ABA and speaker at last year’s DiversityAccess that more women and minorities HCBA Diversity Luncheon, is Pipeline.com. are in high stakes workplaces that taking her own firms steps in that hold prestige, the roles they play direction: she is leaving a career Author: Sumayya are limited. For example, women in BigLaw to establish a non-profit Saleh - Office of of color reported experiencing the organization dedicated to tackling the Public Defender, highest level of bias at 63 percent; issues facing women and minorities Thirteenth Judicial 67 percent said they were held to in the workplace. Circuit of Florida
2 4 NOV - DEC 2018 | HCBA LAWYER
Thanks to All our FOX 13 Ask-a-Lawyer Volunteers!
the attorneys from the lawyer referral & information service were on the job once again in august and september, answering phones as part of fox 13’s ask-a-lawyer program. We appreciate all those who volunteered to take calls and help out local residents. n dale appell n Betsey herd n rinky parwani n Chris arnold n thomas hyde n larry samaha n david Befeler n nehemiah Jefferson n Marie sartiano schoeb n alan Borden n suzanna Johnson n William schwarz n Michael Broadus n shannon Clancy-kimball n shamika askew-storay n erik de l’toile n lisa knox n Betty thomas n ricardo duarte n keith ligori n Chip Waller n Marc edelman n gian franco-Melendez n roland Waller n Christine franco n kari Metzger n robert Walton n trescot gear n denny Morgenstern n Valentina Wheeler n James giardina n John Mulvihill n Megan Williams n Jennifer hamey n stan Musial n Jared Wrage n lynn hanshaw n luby Myrthil n dane heptner n kemi oguntebi
2 6 NOV - DEC 2018 | HCBA LAWYER NOV - DEC 2018 | HCBA LAWYER 2 7 2 8 NOV - DEC 2018 | HCBA LAWYER MEDIATION
Helping You Get to Yes Insurance Coverage Disputes Errors & Omissions Claims Reach out to Woody Isom when you Property Claims need a mediator, arbitrator or special Business Interruption magistrate/master. Certified Circuit Civil Extra Expense and Federal Mediator since 1993, Board Health Disability Certified Civil Trial Lawyer with both Personal Injury insurance defense and plaintiff experience. Wrongful Death Auto/Motorcycle [email protected] Premises Liability www.IsomMediation.com Commercial Litigation Nursing Home (813) 629-6388 Medical Malpractice P.O. Box 320461, Product Liability Tampa, FL 33679-2461 Aviation
NOV - DEC 2018 | HCBA LAWYER 2 9 3 0 NOV - DEC 2018 | HCBA LAWYER Fall Membership Luncheon
hCBa welcomed 500 members to its fall membership luncheon on september 9. Members enjoyed a fascinating talk by best-selling author and television executive producer, Michael Connelly. at the luncheon, hCBa welcomed several guests, including representatives from the greater tampa Chamber of Commerce and the City of tampa government.
photography is courtesy of thompson Brand images, and a/V assistance is courtesy of tCs. thompson Brand images and tCs are benefit providers for the hCBa. www.thompsonBrandimages.com and www.trialCs.com.
NOV - DEC 2018 | HCBA LAWYER 3 1 Fall Membership Luncheon continued from page 31
3 2 NOV - DEC 2018 | HCBA LAWYER the hCBa would like to thank its fall Membership luncheon sponsors, the Bank of tampa and gunster, for their continuing support.
NOV - DEC 2018 | HCBA LAWYER 3 3 22nd Annual Bench Bar Conference, Membership Luncheon & Judicial Reception
the hCBa Bench Bar Conference, Membership luncheon & Judicial reception enjoyed record attendance yet again this year as more than 500 attorneys, judges, and other legal professionals came out for a day of great Cle programming and networking on october 3. the Conference featured a plenary session with noted law professor Charles W. ehrhardt from the florida state university College of law, who presented on the impeachment of witnesses. in addition, the attendees enjoyed the ever-popular “View to and from the Bench” panel discussions with the local judiciary, and a well-attended “deconstructing Jury decision Making” jury panel feedback session. at noon, the Membership luncheon featured well-known political analyst dr. susan MacManus as the keynote speaker, who discussed the november mid-term elections and the florida political landscape. the hillsborough County Bar foundation also presented six local charities with checks totaling $100,000. the conference ended with attorneys, judges, and friends of the legal community mingling at the Judicial reception in the evening. the hCBa would like to thank the members of the Bench Bar Committee for all their hard work. a special thanks also goes out to all of the events sponsors, specifically our diamond sponsor:
photography is courtesy of thompson Brand images (www.thompsonbrandimages.com). thank you also to tCs for providing a/V assistance and signage at the conference (www.trialcs.com). thompson Brand images and tCs are benefit providers for the hCBa. additional photos from the event are available at www.facebook.com/hCBatampabay.
3 4 NOV - DEC 2018 | HCBA LAWYER NOV - DEC 2018 | HCBA LAWYER 3 5 3 6 NOV - DEC 2018 | HCBA LAWYER THANK YOU TO THE SPONSORS of the HILLSBOROUGH COUNTY BAR ASSOCIATION 22ND ANNUAL BENCH BAR CONFERENCE & JUDICIAL RECEPTION Diamond Silver v GRAYROBINSON, P.A. v GUNN LAW GROUP, P.A. v HILL WARD HENDERSON v SHUMAKER LOOP & KENDRICK LLP v WESTERN MICHIGAN UNIVERSITY, THOMAS M. COOLEY LAW SCHOOL Platinum v ABRAHAMSON & UITERWYK Bronze v AKERMAN LLP THE BANK OF TAMPA v v ANSA ASSUNCAO, LLP v BRADLEY ARANT BOULT CUMMINGS LLP v BAJO | CUVA | COHEN | TURKEL v BRANNOCK & HUMPHRIES v BANKER LOPEZ GASSLER P.A. v COLE, SCOTT & KISSANE, P.A. v BUTLER WEIHMULLER KATZ CRAIG v CARLTON FIELDS v DENNIS HERNANDEZ & ASSOCIATES PA v CLARK & MARTINO, P.A. GUNSTER v v CURRY LAW GROUP, P.A. v HCBA TRIAL & LITIGATION SECTION v DE LA PARTE & GILBERT, P.A. v HOLLAND & KNIGHT LLP v KYNES, MARKMAN & FELMAN, P.A. v TCS v LAW OFFICE OF KEVIN J. NAPPER, P.A. v OGDEN & SULLIVAN, P.A. v WAGNER MCLAUGHLIN v OLDER, LUNDY & ALVAREZ v RUMBERGER, KIRK & CALDWELL v SEACOAST BANK Gold v SHOOK HARDY & BACON THE SUAREZ LAW FIRM v ADAMS & REESE v v THOMAS & LOCICERO PL v FLORIDA LAWYERS MUTUAL INSURANCE COMPANY v TROMBLEY & HANES v FREE PRESS v GREENBERG TRAURIG v LAWPAY Breakfast Bar Sponsor v PAUL | KNOPF | BIGGER BURR & FORMAN v PHELPS DUNBAR LLP v SESSUMS BLACK CABALLERO FICARROTTA Coffee Break Sponsor GUNN LAW GROUP, P.A. v STETSON UNIVERSITY COLLEGE OF LAW Afternoon Break Sponsor BURNETTI, P.A.
NOV - DEC 2018 | HCBA LAWYER 3 7 CoUrt reAffirmS USe in CommerCe teSt for foreign BrAndS Intellectual Property Section Chairs: Cole Carlson – GrayRobinson, P.A. & Ryan M. Corbett – Burr & Forman
A foreign company can establish U.S. common law rights, even without U.S. sales, with sufficiently public advertising. hether a party’s © Can Stock Photo / guyerwood use of a purported trademark constitutes “use in commerce” is a question that often trips up even Direct Niche purchased the On appeal, the Eleventh experiencedW trademark practitioners. domain casasbahia.com at a Circuit noted that the The Eleventh Circuit recently premium at an online auction jurisdictional analysis in Bulova clarified the difference between and used the domain to serve up Watch is not the same as the “use in commerce” for purposes advertisements — receiving more “use in commerce” test for of establishing extraterritorial than 3.5 million hits over a 2-year ownership. The court reaffirmed enforcement jurisdiction and “use period and generating more than its ownership test: a mark owner in commerce” for purposes of $15,000 in advertising revenue. must prove adoption and “use determining protectable trademark Not surprisingly, Via Varejo in a way sufficiently public to rights. The takeaway: a foreign brought a UDRP proceeding identify or distinguish the marked company can establish U.S. common against Direct Niche, and the goods in an appropriate segment law rights, even without U.S. sales, panel ordered transfer. of the public mind as those of if “advertising, publicity, and More surprisingly, Direct Niche the adopter of the mark.” solicitation” in the name of the responded with a declaratory Once it affirmed the legal test, mark demonstrates use “sufficiently judgment action. Direct Niche the Eleventh Circuit reviewed the public to identify or distinguish the argued that because Via Varejo facts for clear error and upheld marked goods in an appropriate did not operate in the U.S. or ship the trial court’s fact findings. segment of the public mind.” goods to the U.S., it did not use In particular, the trial court was The foreign mark owner in the mark in commerce in the U.S. persuaded by evidence that Via Direct Niche, LLC v. Via Varejo S/A, And because, in Direct Niche’s Varejo sold advertising on its 898 F.3d 1144 (11th Cir. 2018) met view, Via Varejo did not have a site to U.S.-based companies, that test. The case came to the U.S. registered or common law and that the Casas Bahia website Eleventh Circuit in the context of a mark, Direct Niche contended received millions of visits yearly declaratory judgment action under its actions did not violate ACPA. from U.S.-based IP addresses. the Anticybersquatting Consumer The trial court found Via The Eleventh Circuit held those Protection Act (ACPA), 15 U.S.C. Varejo’s use sufficient to establish factual findings § 1114(2)(D)(v). Brazilian company common law rights. Direct Niche were not clearly Via Varejo owned the Casas Bahia appealed, arguing that the erroneous. chain of more than 750 Brazilian “substantial effects” test set forth retail stores. The company owned in Steele v. Bulova Watch Co., Inc., registered trade marks in more than 344 U.S. 280 (1952) demonstrated 40 countries (but not, at the time the that Via Varejo’s operation of Author: case was brought, in the U.S.), and it Brazilian stores and a Brazilian Dineen Pashoukos sold consumer goods online through website did not have “substantial Wasylik - its website, casasbahia.com.br. effects” on the United States. DPW Legal
3 8 NOV - DEC 2018 | HCBA LAWYER NOV - DEC 2018 | HCBA LAWYER 3 9 anti-tattoo poliCies May trigger title Vii liaBility labor & employment law Section Chairs: Cynthia Sass – Law Offices of Cynthia Sass, P.A. & Jason Pill – Phelps & Dunbar, LLC
workplace could accommodations violate Title VII to sincerely held of the Civil religious beliefs Rights Act unless it would of 1964 and cause undue possibly hardship to the constitute business. Red religious Robin maintained discrimination. that allowing any For example, exceptions to its in EEOC v. dress code policy raditionally, tattoo Red Robin undermine its owners were perceived Gourmet Burgers, “wholesome as unscrupulous Inc., 2005 WL © Can Stock Photo / bburgess image.” But the characters. Right or 2090677 (W.D. United States wrong, tattoos have, at times, been Wash. Aug. 29, employers generally District Court stereotypicallyT associated with 2005), the EEOC have broad discretion for the District criminals and gang members. alleged that Red of Washington in making employment But in the last decade, tattoos Robin, a gourmet rejected Red have become mainstream, burger restaurant decisions based Robin’s argument particularly among members chain, engaged in on tattoos, but there on summary of Generations “Y” and “Z.” unlawful religious judgment, ruling Despite the ubiquity of tattoos, discrimination are pitfalls. that Red Robin some employers do not consider when they was required to them an asset in the workplace, refused to support its undue and understandably, employers accommodate a hardship claim have reservations when hiring religious practice and fired an with more than hypothetical tattooed employees in positions employee for not covering up his hardships based on unproven that involve customer contact. tattoos. In that case, employee assumptions. Red Robin ultimately In these situations, the open Edward Rangel was hired as a settled the lawsuit before trial for display of a tattoo may not be server at a Red Robin restaurant $150,000 and entered into a conducive to the message the in Bellevue, Washington. Rangel consent decree with the EEOC. employer is trying to convey to asserted that he was an adherent The lesson here is that Title VII the public. So some employers ask of the Kemetic religion, an ancient takes a broad view of religion, their employees to conceal their Egyptian faith. As part of his and tattoos that are part of a tattoos during work hours in order religious practice, Rangel received religious practice may need to to project an approachable and religious inscriptions in the form be accommodated if they do not friendly environment to customers. of tattoos on his wrists. The impose an undue hardship. Purely While some employees take no inscriptions symbolized Rangel’s secular tattoos, however, do not issue with these requests, other religious dedication, and his implicate Title VII, and employers employees may react negatively religious practices made it a sin to are free to make and fervently protest their deliberately conceal the inscriptions. decisions on that employer’s efforts to hamper Red Robin fired Rangel for basis or require their self-expression. violating the company’s dress code, employees to From an employment law which prohibited him from having cover up tattoos standpoint, employers generally visible tattoos. Rangel sought an at work. have broad discretion in making exemption from the dress code, but employment decisions based on Red Robin refused to provide it or Author: Matthew tattoos. But in some scenarios, any alternatives. Title VII requires S. Perez - Phelps restrictions on tattoos in the employers to make reasonable Dunbar LLP
4 0 NOV - DEC 2018 | HCBA LAWYER seCure payMent With a Charging lien Marital & Family law Section Chair: Chris Givens - Givens Givens Sparks, PLLC
this equitable right has been recognized for over a century. © Can Stock Photo / rtbilder
he attorney’s charging lien is an equitable The automatic stay under not provided that the lien related right — recognized for Bankruptcy Code § 362, which goes back. In re Hall, 2011 WL 4485774, more than a century — into effect immediately upon the at *5 (B.A.P. 9th Cir. Aug. 22, 2011); to have the costs and fees due for commencement of a bankruptcy In re Veazey, 272 B.R. 486, 492-93 servicesT rendered in an action case, ordinarily bars any act to (Bankr. D. Kan. 2002). Because secured by the judgment or recovery perfect a lien against property of charging liens in Florida, however, in that action. A charging lien need a debtor’s estate. But Bankruptcy relate back to the commencement not be adjudicated or enforced Code § 362(b)(3) provides an of the attorney’s services, they before entry of the final judgment. exception for liens that cannot be cannot be avoided in bankruptcy, To perfect a charging lien on avoided in bankruptcy. In other and perfection of the lien would judgment proceeds, an attorney words, the automatic stay does not not be subject to the automatic stay. need only give timely notice. bar an attorney from perfecting a While it is always a better practice Although an attorney must give charging lien after a bankruptcy to be paid up front, too often in notice to perfect a charging lien, case has been filed so long as the family law cases we see assets the interest created by a valid charging lien cannot be avoided dwindle before our eyes. And either attorney’s charging lien arises by by a trustee in bankruptcy. ethical considerations or judges operation of law and relates back Bankruptcy Code § 546 provides prevent access to those assets for to the commencement of the that a trustee in bankruptcy may payment. Rather than watch attorney’s services. So it has priority not avoid an interest in property accounts receivable that may never over any judgment lien obtained (e.g., an attorney charging lien) if be collected grow, it is the better after commencement of the generally applicable law permits the practice to assert a charging lien so attorney’s services. In re Washington,, perfected lien to be effective against that you can be 242 F.3d 1320, 1323 (11th Cir. a previously acquired interest in paid from the 2001) (citing Miles v. Katz, 405 the property. Some bankruptcy proceeds of your So. 2d 750, 752 (Fla. 4th DCA courts outside Florida have ruled work. Take the 1981)). This is significant because that a charging lien does not fall time to perfect perfection of liens that arise by within § 546 (meaning it can be a charging lien. operation of law are not subject to avoided and perfection is therefore the automatic stay in bankruptcy, subject to the automatic stay) Author: Paul S. and unlike judicial liens, they cannot when a state statute provided for Maney - Paul S. be avoided in bankruptcy either. a charging lien and the statute did Maney, P.A.
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NOV - DEC 2018 | HCBA LAWYER 4 1 HonoRing oUR VTC CoMMUniTy HeRoeS Military & Veterans Affairs Committee Chairs: David Veenstra – Hunter Law, P.A & Alexandra Srsic – Bay Area Legal Services, Inc.
Former U.S. Secretary of Veterans Affairs Robert McDonald (center) visiting the Thirteenth Judicial Circuit. He is shown along with (l to r): former VTC Judge Gregory P. Holder, Public Defender Julianne Holt, VTC Judge Michael J. Scionti, State Attorney n October 12, Julie Andrew Warren, and Reyes, Founder of Court Administrator the Diversity Action Gina Justice. Coalition, a 501c3 whose mission directly supports Oour local military and veteran “VTCs save lives.” — Former US Secretary community programs and initiatives, hosted the Fourth of Veterans Affairs Robert McDonald Annual Thirteenth Judicial Circuit’s Veterans Treatment Court (VTC) Heroes Gala Dinner and Awards Event. Held at the The evening’s ceremony Circuit’s VTC and supporting Hilton Tampa Downtown, the culminated in the presentation Volunteer Mentor Program have event was a celebration of our of awards in three categories: the evolved into arguably the largest local community veterans who give Legacy Award, Inspiring Mentor combined docket and mentor corps of their own time and experiences Award, and Community Advocate in the nation. Over 400 VTC to help mentor other veterans Award. The winners, nominated programs in over 46 states currently who are in trouble with the law and voted by the VTC’s Senior comprise this national program. and enrolled in the VTC. Mentors, were Judge Michael J. With a success/graduation rate that The event also recognized the Scionti, Jim Salgado, and President exceeds 80 percent and current cost veteran mentors’ families who Jeff Day of the Argosy University savings of more than seven million support those who continue to serve Tampa Campus. dollars per annum in county taxes, and pay it forward, and our local Former Secretary McDonald it is an acknowledged fact that this organizations that comprise the also visited the VTC in session treatment and rehabilitation court greater VTC community team. earlier in the day and shared some works, as we continue to seamlessly The evening’s events started words of wisdom with the court. and successfully re-integrate the with traditional military custom, He met with VTC Judge Michael VTC veterans back into the very including the posting of the colors J. Scionti, former VTC Judge local communities that they earlier (Bloomingdale High School Junior Gregory P. Holder, Public Defender swore to defend and to protect. ROTC), the singing of the National Julianne Holt, State Attorney Anthem (Plant High School Pink Andrew Warren, and Court Author: DJ Panthers), and the Missing Man Administrator Gina Justice, and Reyes, Colonel Table ceremony. The crowd also listened to the testimonial of a USA (retired) - enjoyed opening remarks by our graduating veteran from the VTC VTC Mentor VTC Judge, Hon. Michael J. Scionti, program. We appreciate Secretary Program, and were thrilled to have the former McDonald’s participation and Thirteenth (eighth) U.S. Secretary of Veterans support of the VTC’s mission. Judicial Circuit’s Affairs, Hon. Robert McDonald, In the five years since it was Veterans provide the keynote address. established, the Thirteenth Judicial Treatment Court
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NOV - DEC 2018 | HCBA LAWYER 4 3 tenants Can reduCe sales taX With targeted donations Real Property Probate & Trust Section Chairs: Kristin Morris – Shutts & Bowen & Elaine McGinnis – Law Office of Elaine McGinnis, P.A.
tenants can receive up to a dollar-for-dollar credit against the state sales tax that would otherwise be collected by the landlord.
© Can Stock Photo / designer491
s of October 1, 2018, Florida businesses • fiscal year of the contribution; Tenants may not transfer their that lease commercial • name of the SFO; tax credits or carry-forwards to real property in • contribution/corresponding another entity unless they intend to Florida may apply to the Florida credit amount; convey or transfer effectively all of DepartmentA of Revenue to receive • address of the property their business’s assets, together with a tax credit on the sales tax that subject to tax; and their interests in the commercial is customarily paid by tenants on • federal EIN of landlord. lease that is the subject of the tax commercial leases. Tenants can credit. Tenants must be mindful receive up to a dollar-for-dollar If the Department approves that no credits are available for credit against the state sales tax the application, it must provide local or county discretionary sales that would otherwise be collected a copy of its approval letter to surtaxes and, therefore, must by the landlord and remitted to the tenant and the SFO. When the continue remitting this portion the Department. The credit SFO receives eligible contributions, of tax on rent to their landlords. would be based upon the amount it must provide a separate certificate of money donated to specific of contribution to tenants, which 1 A “charitable organization” must nonprofit charitable organizations1 must include the following: be a state university or an independent that offer educational scholarships • tenant’s name; college/university that is eligible to in Florida under the “Florida • tenant’s federal EIN; participate in the William L. Boyd, IV, Sales Tax Credit Scholarship • contribution date and amount; Florida Resident Access Grant Program. Program,” codified as Section • name of SFO; and See §§ 1002.385 and 1002.395, Fla. Stat. 212.099, Florida Statutes (2018). • landlord’s federal EIN. 2 An “eligible The state tax credit is equal contribution” to 100 percent of the “eligible Tenants must deliver the is a monetary contributions”2 made to a Department’s approval letter contribution from nonprofit scholarship funding and the SFO’s certificate to a tenant to a SFO. organization (SFO) that is part their landlords, and upon receipt, It is important to of the Gardiner Scholarship landlords must reduce the note that tenants Program or the Florida Tax Credit commercial rent tax collected are not able to Scholarship Program, as defined by the amount of the eligible designate a specific in Section 1002.395(2)(f), Florida contributions indicated on the student as the Statutes (2018). Certificate. The reduction may not recipient of the All tenants are eligible, but exceed the amount of the approved eligible contribution. they must apply to the Department tax credit or the amount of tax of Revenue to reserve tax credits otherwise collected by the landlord. Authors: because they are approved on If tenants are unable to use all of Josh Podolsky a first-come, first-served basis. the tax credits in a particular fiscal and Derek Larsen- The application requires tenants year, they may carry forward any Chaney – Phelps to provide the following: unused credit for up to 10 years. Dunbar, LLP
4 4 NOV - DEC 2018 | HCBA LAWYER Search for Missing Will SHEILA ANN HAWTHORNE DOB 11/12/1950
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NOV - DEC 2018 | HCBA LAWYER 4 5 4 6 NOV - DEC 2018 | HCBA LAWYER NOV - DEC 2018 | HCBA LAWYER 4 7 4 8 NOV - DEC 2018 | HCBA LAWYER Health Care Law Section Luncheon
on september 26, the health Care law section held its first luncheon of the year, where they received a Cle presentation on best practices for private equity healthcare transactions. the presenter, Maja lacevic, esq. with trenam law, provided an introduction on the topic, with a particular focus on acquisitions of physician groups by private equity firms.
the health Care law section thanks its luncheon sponsor:
NOV - DEC 2018 | HCBA LAWYER 4 9 the eVolVing fiduCiary standard for Broker-dealers Securities Section Chairs: Dominique Heller – Wiand Guerra King, P.A. & Scott Illgenfritz – Johnson, Pope, Bokor, Ruppel & Burns, LLP
a “best interest” and RIA firms contract with were forced to clients that close their doors limited because of compensation the significant and required financial burden various conflict of compliance. disclosures. Less than two Unsurprisingly, years after going the rule had into effect, the negative market © Can Stock Photo / filmfoto Fiduciary Rule dopted by the consequences. it remains to be seen was vacated by Department of Labor MetLife, AIG, the United States in 2016, the “Fiduciary and Merrill whether regulation Court of Appeals Rule” attempted to Lynch Best interest will for the Fifth extend a fiduciary standard to withdrew Circuit in a be adopted with or registeredA representatives handling from certain 2-1 decision ERISA plans and IRAs. Among segments of without modification. in Chamber of other things, the Fiduciary Rule the market, Commerce of the would have prevented registered while experts United States v. representatives from earning theorized that commissions unless they agreed to smaller, independent broker-dealers Continued on page 51
5 0 NOV - DEC 2018 | HCBA LAWYER the eVolVing fiduCiary standard for Broker-dealers Securities Section
Continued from page 50 to a retail customer, to act in for not going far enough and the best interest of the customer posited that brokers would be U.S. Dep’t of Labor, 2018 WL without placing the financial or subject to a weaker standard than 3301737 (5th Cir. 2018), which other interest of the broker-dealer investment advisors. held that the Department of or representative ahead of the Facing conflicting criticism, it Labor exceeded its authority under customer’s interest. And while appears the SEC has proceeded Title I of ERISA when it enacted the Fiduciary Rule required only with caution through enhanced the Fiduciary Rule. The action disclosure of conflicts of interest, vetting of the proposed regulation. was spearheaded by several Regulation Best Interest requires The SEC received nearly 4,000 industry groups, including the broker-dealers to establish, submissions during the comment U.S. Chamber of Commerce and maintain, and enforce written period and hosted seven roundtable Securities Industry and Financial policies and procedures reasonably discussions in various U.S. cities to Markets Association. designed to identify, disclose, and obtain feedback on the proposed While many industry mitigate, or eliminate, material regulation. It remains to be seen participants welcomed the decision conflicts of interest arising from whether Regulation Best Interest to vacate the Fiduciary Rule, the financial incentives associated will be adopted with or without SEC proposed a new regulation with such recommendations. modification. But once adopted, immediately on the heels of the Industry participants have it will likely be here for the long Fifth Circuit’s ruling. In fact, before criticized the SEC’s proposed haul (unlike the DOL fiduciary the Fifth Circuit issued its mandate, regulation on the basis that creating rule) as a valid exercise of the the SEC had responded with its a duty to mitigate or eliminate SEC’s long anticipated “Regulation Best conflicts would subject broker- regulatory Interest” under the Securities dealers to a higher standard than authority. Exchange Act of 1934. According investment advisors, and that the to the proposal released on April requirement is ambiguous, making 18, 2018, the Regulation Best compliance challenging. On the Author: Interest requires broker-dealers other end of the spectrum, House Michael and registered representatives, and Senate Democrats (in a letter Mariani - when recommending any securities to SEC Chairman Jay Clayton) Wiand transaction or investment strategy criticized Regulation Best Interest Guerra King
The Lawyer magazine is now DigiTaL! The hCBa is pleased to introduce a new way to read the magazine — in digital format. while the magazine will still be mailed to members in print format, the new digital format also makes the magazine viewable on computers and mobile devices and can be easily shared via email and social media. access the digital magazine at hillsbar.com.
NOV - DEC 2018 | HCBA LAWYER 5 1 the story of Magna Carta Senior counsel Section Chair: Thomas Newcomb Hyde – Attorney at Law
“We are heirs to a tradition given voice 800 years ago by Magna Carta, which, on the barons’ insistence, confined executive power by the law of the land.” — u.s. supreme Court Justice sandra day o’Connor
n 1215, King John of Senior Counsel luncheon. Judge of life, liberty or property without England was in trouble. Black explained that while most due process of law, nor shall He had imposed heavy of the charter dealt with medieval private property be taken for public taxes on the English barons rights and customs, it also use without just compensation.” to pay for his expensive wars in pronounced that all free men had Compare these with clause 39 IFrance. When the barons refused a right to justice and a fair trial. of Magna Carta: to pay, King John punished Unfortunately, “all free men” only No free man is to be arrested, them and arbitrarily seized their included the powerful barons and or imprisoned, or disseized, or properties. So, when the barons churchmen. Most of King John’s outlawed or exiled or in any revolted and captured the city subjects were poor peasants ruled other way ruined, nor will we of London, King John had to over by their landlords. go or send against him except negotiate. The two sides met Judge Black discussed the legacy by the legal judgment of his at Runnymede, a meadow of Magna Carta, especially to the peers, or by the law of the land. along the Thames River about English colonies that became the Magna Carta continues to halfway between Windsor Castle, United States. The principles of maintain a powerful influence on where the king’s forces were limits on government announced our law. In Hamdi v. Rumsfeld, encamped, and London, which in the great charter are echoed in 542 U.S 507 (2004), the United was controlled by the barons. the Declaration of Independence. States Supreme Court, in an The Archbishop of Canterbury, Judge Black compared the fight opinion involving the power of Stephen Langdon, drafted an of the barons in 1215 with the the executive to hold a U.S. citizen agreement, or charter, which plight of the American colonies indefinitely, Justice Sandra Day demanded that the king commit in 1776. Just as the English barons O’Connor wrote, “we are heirs to in writing with his royal seal to complained of King John’s abuses, a tradition given voice 800 years a list or rights and obligations. so did the American revolutionists ago by Magna Carta, which, on Written on parchment in condemn the injustices of King the barons’ insistence, confined Latin, Magna Carta has become George III. executive power by the law of a symbol of liberty and freedom. Judge Black described how the land.” Its central tenet is that everyone, Magna Carta influenced the The Senior Counsel Section is including our leaders, must obey United States Constitution and the grateful to Judge Black for speaking the law. Bill of Rights. For example, Article at its luncheon and sharing his In September, Second District III of the Constitution states that, insights into this historic document. Court of Appeals Judge Anthony “The Trial of all Crimes, except in Black recounted the story of Cases of Impeachment, shall be by Magna Carta to an audience Jury.” The Fifth Amendment states Author: Thomas Newcomb Hyde – of judges and lawyers at the that no person shall “be deprived Attorney at Law
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5 2 NOV - DEC 2018 | HCBA LAWYER Senior Counsel Luncheon Welcomes Judge Black
on september 13, the senior Counsel section received a special presentation from second dCa Judge anthony Black, who spoke on the subject of Magna Carta and its implications for the legal system and role of government. thank you to Judge Black for taking the time out of his busy schedule to speak to the section membership!
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NOV - DEC 2018 | HCBA LAWYER 5 3 tips on BeCoMing a profitaBle solo or sMall firM praCtitioner Solo & Small Firm Section Chairs: Matthew Crist – Crist Legal | PA & Gian-Franco Melendez – Law Office of Gian-Franco Melendez, LLC
in writing your strategic business plan, there are several ways to keep your overhead low and at the same time make your firm efficient and productive.
© Can Stock Photo / Marti157900 ome people think of solo practitioners as the lawyers who could not email, case management, client fax, Skype, FaceTime, and email, make it in the big firms, relations management, docketing, lawyers can effectively work from the renegade lawyer who will not billing, accounting, and the like. home. You can rent an executive Sconform, or the lawyer who is Be sure to ask colleagues or others room or conference room space on not serious about practicing law. for referrals because sales people a per-hour or per-day basis where These perceptions could not be will tell you anything just to get you can meet clients when necessary. more wrong. Solo and small firm you to buy their program. When you go out on your own, lawyers are not just lawyers who 2. Staffing. With remote access you don’t work for your firm, you could not cut it in the “big law” and virtual assistance available, ARE the firm — whether you are at sand box. They are entrepreneurs it is not necessary to spend a lot the office, at home in the evenings, looking to find a new path to of money on payroll, benefits, spending time with your family, or success through their own efforts. parking, etc. Often an in-office on vacation. Work/life balance is Although solo practitioners often legal assistant is all you need for important for everyone. As a solo practice in one or two specific on-staff help. Any administrative practitioner, it can be tricky to areas, they can offer their clients or timekeeper functions, including achieve that balance because you a wide range of legal services by administrators and paralegals, can don’t want to miss a telephone call establishing a referral network with be outsourced less expensively that may be a potential new client. other solo practitioners or hiring than in-house staff. Nor do you don’t want to wait too contract lawyers when their clients 3. Office space. Solo and long to answer that email. By using have new needs. small firm practitioners can reduce the right resources, you can be an There are many moving parts their rent overhead by leasing efficient, productive, cost-conscious, to establishing a small firm, and professional offices together. This and profitable solo or small firm a strategic business plan is the way, each lawyer gets a professional practitioner roadmap for where you want to office and can share common and, as a result, take your practice. In writing your areas with other attorneys and successful and strategic business plan, here are split the rent. In terms of client happy with your some ways to keep your overhead referrals, you should consider law career. low and at the same time make renting space with other lawyers your firm efficient and productive: who practice in different areas. Author: 1. Technology. There are many 4. Virtual offices are Elizabeth Miller software programs available that more common today than – Management can facilitate work, including for ever. With remote capabilities, Consultant
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5 4 NOV - DEC 2018 | HCBA LAWYER a neW MeChanisM for gain deferral Tax law Section Chair: Christopher Dingman - Barnett, Bolt, Kirkwood, Long & Koche, P.A.
a taxpayer can sell property of any type and defer gain from the sale by reinvesting the gain in a “qualified
opportunity fund.” © Can Stock Photo / alexskopje
ne of the more exciting tax planning code provides that property that taxpayers will need clarity as to: opportunities made is held for five years or seven years (a) whether depreciation recapture, available by the will have a basis increase resulting which recasts certain capital gains passage of the 2017 Tax Cuts in a portion of the pre-rollover as ordinary income to the extent Oand Jobs Act relates to the ability gain being entirely excluded previously depreciated would be to shield gain from the sale of (ten percent and an additional eligible for exclusion; (b) given property by reinvesting proceeds five percent, respectively). As a that the applicable statute directs from such gain into what are potentially even more dramatic that “substantially all” of a known as “qualified opportunity benefit, property held within a business’s tangible property must zones,” which are low-income qualified opportunity fund for ten be “opportunity zone business communities designated by years will have its basis increased property,” what proportion satisfies each state. to its fair market value at the time the “substantially all” requirement; Under Internal Revenue Code of ultimate sale (meaning that and (c) whether residential rental §§ 1400Z-1 and 1400Z-2, a gains within the opportunity fund property qualifies as an taxpayer can sell property of would be excluded from income). opportunity zone business. any type and defer gain from the So where do we go from here? Proposed guidance is expected sale by reinvesting the gain in a Congress has provided a significant to be forthcoming from the “qualified opportunity fund” within tax benefit intended to encourage Department of Treasury and the 180 days of the sale. A qualified investment in low-income commu - Internal Revenue Service. Such opportunity fund is a partnership nities, and several areas within guidance should foster additional or corporation that invests 90 Hillsborough County have been confidence and certainty with percent of its assets into a business designated as qualified opportunity respect to the practical benefits within a qualified opportunity zones. Still, commenters note of an already rather enticing new zone. Among other requirements, several open items that will need tax planning at least 50 percent of the qualified to be resolved before taxpayers opportunity. business’s total gross income must en masse feel comfortable taking be derived from the active conduct advantage of the provision. of a qualified business (specific Among those items that remain Author: businesses such as golf courses, unresolved (as of the date of this Steven D. country clubs, massage parlors, writing) and may reasonably Shapiro – and racetracks are excluded). delay a taxpayer’s desire to deploy Barnett, Bolt, By reinvesting the proceeds into capital for purposes of taking Kirkwood, Long a qualified opportunity fund, a advantage of the new provisions, & Loche, P.A. taxpayer can defer gain until the sooner of when its interest in the qualified opportunity fund is sold students and government attorneys pay reduced or December 31, 2026. In addition membership rates. Join at hillsbar.com. to this general gain deferral, the tax
NOV - DEC 2018 | HCBA LAWYER 5 5 uBers, lyfts and taXis - oh My! Trial & litigation Section Chair: Katherine Yanes – Kynes, Markman & Felman, P.A.
Make sure you’ve got an accurate picture of the coverage available to your client if an automobile crash involves an uber, lyft and/or taxicab. © Can Stock Photo / makidotvn
f a client came to you In 2017, Florida began to regulate a TNC? If your client was injured describing a car crash with an TNCs on a statewide level with the in a crash — either as a passenger “amateur cabdriver” ten years adoption of section 627.748, Florida in a TNC or as an occupant of ago, you probably would’ve Statutes. Section 627.748 sets forth another vehicle — with a TNC wondered about the client’s mental financial, as well as regulatory, driver, it’s reassuring that there Istate, but today, you wouldn’t bat an requirements for TNC drivers, will be some form of bodily injury eye. What if your client is one of either while giving prearranged or UM coverage. But it will be these “amateur cabdrivers”? While rides or while the application is just important to ascertain which TNC you want to make sure your client engaged, mirroring other coverages was involved (as many drivers will gets the treatment he or she needs, put into place in other states.4 use both applications at the same you must make sure you’ve got an If a TNC driver causes a crash, time) and, most important, what accurate picture of the insurance there is a significant difference in phase of work the TNC driver coverage available if an automobile insurance coverage for bodily injury was in at the time of the crash. crash involves an Uber, Lyft, or if the driver is logged in to the taxicab, which isn’t always clear. TNC 5 versus when the driver is 1 § 627.748(1)(e), Fla. Stat. Transportation network engaged in a prearranged ride.6 2 https://www.forbes.com/sites/ companies (TNCs)1 like Uber and But even within the TNCs, there bizcarson/2018/01/16/lyft-doubled- Lyft have become commonplace are different coverages beyond rides-in-2017/#49d9ea717d6b. to anyone with a credit card and a the minimum requirements. Lyft 3 https://www.consumerreports.org/ smart phone. By 2017, Uber had maintains personal injury protection personal-finance/uber-vs-taxi-which-is- completed four billion rides since (PIP) coverage7 while Uber does cheaper/. it was founded eight years earlier, not.8 Both TNCs carry uninsured 4 http://time.com/money/4482057/ while its competitor, Lyft, doubled motorist (UM) coverage for heres-what-you-need-to-know-about- its annual growth to 375.5 million occupants on a paying fare, but insuring-yourself-with-uber/. rides in 2017 alone.2 That’s a lot Lyft maintains some UM coverage 5 § 627.748(7)(b)(1)(a), Fla. Stat. of miles driven. And it doesn’t for its drivers who have the 6 § 627.748(7)(c)(1)(a), Fla. Stat. even include “old” ride sharing application on but have no riders. 7 https://lyft-assets.s3.amazonaws. like taxicabs, which still can be a Contrast these coverages with com/helpcenter/coi/florida.pdf. price-competitive solution over the traditional taxicabs, which have 8 https://ubernewsroomapi.10upcdn. new TNCs.3 only one level of mandatory bodily com/wp-content/uploads/2015/01/ All three, however, often involve injury coverage in far lower FL_9.1.18-1.pdf. drivers using unfamiliar roads, amounts 9 than a TNC driver 9 § 324.032(1)(a), which can lead to crashes. Even engaged in a prearranged ride, but Fla. Stat. though litigators typically know higher than when the TNC driver 10 § 627.733 what to do with taxicab cases, they is just logged on. And taxicabs do (1)(b), Fla. Stat. don’t necessarily know what cover- not maintain any PIP coverage.10 ages are applicable for TNCs What does the bevy of coverages Author: Marc J. because of the new and changing mean to you as a representative of Semago - FL legal requirements. an injured party when dealing with Legal Group
5 6 NOV - DEC 2018 | HCBA LAWYER Hold your next meeting at the Chester H. Ferguson Law Center The Chester H. Ferguson Law Center is an ideal location with a variety of rooms to meet your needs. Reserve for a day or for a few weeks. Convenient to downtown Tampa, the Ferguson Law Center has many amenities: • Six conference rooms of varying sizes • Complimentary AV equipment and Wi-Fi • Free, street-level parking
Wagner Lounge Gillen Mediation Room
Smith Board Room Stiles Conference Room
Trenam Conference Room Yerrid Conference Center Chester H. Ferguson Law Center 1610 N. Tampa Street, Tampa, FL 33602 Reserve your space today. Call (813) 221-7777 or email [email protected].
NOV - DEC 2018 | HCBA LAWYER 5 7 around the assoCiation
Michael Bradford - Michael J. Liaison Committee, brings together addition of Tampa-based associate Bradford, a shareholder in the local and specialty Bar leaders to Patrick Reid, who joins the Tampa office of Marshall network, learn and share best firm’s Intellectual Property and Dennehey Warner Coleman & practices. The conference will be Cybersecurity Practice Groups. Goggin, has been approved by the held in Tampa in July 2019. Board of Directors of the Maritime Allison M. Stevenson - Hill Law Association of the United Celene H. Humphries - of Ward Henderson is proud to States (MLA) to join as an Brannock & Humphries recently announce that associate Allison Associate Member. The MLA was presented at the Florida Justice M. Stevenson has been appointed founded in 1899 as a professional Association’s Christian D. Searcy co-chair of the Florida Association organization concerned with Voir Dire Institute on the subject for Women Lawyers (FAWL) improvements in maritime law. of “Trial Support Counsel – The Legislative and Lobby Days Unsung Hero of Your Trial Team.” Committee. Steven L. Brannock - of Brannock & Humphries recently C. Howard Hunter - Hill Natalie Thomas - Quarles & participated in a panel discussion Ward Henderson is proud to Brady LLP congratulates Natalie for the Florida Bar’s DCA Judges announce that shareholder C. Thomas, an attorney in the firm’s Conference on “Emerging Trends Howard Hunter has been named Litigation and Dispute Resolution in the Practice of Law.” 2018 Trial Lawyer of the Year Practice Group, who has been by the Florida Chapters of the appointed to the board of directors Caitlin Costa - Golden Scaz American Board of Trial Advocates for The Helen Gordon Davis Gagain, PLLC is pleased to (FLABOTA). Hunter was presented Centre for Women. announce that Caitlin Costa has with the award at the 21st Annual joined the firm as an associate FLABOTA Conference on July 21 John Tucker - of Tucker & attorney. Costa will practice in the in Boca Raton. Ludin, P.A. presented on the firm’s general liability practice group. subject of “Adjuster and Bad Faith Lorien Smith Johnson - Expert Witness Deposition and Andrew Gay - Carlton Fields Lorien Smith Johnson announces Examination Tactics” at the is pleased to announce that Andrew the opening of Lorien S. Johnson, Advanced Insurance Bad Faith O. Gay has joined the firm in its PLLC. Johnson, an AV-rated Seminar sponsored by National Tampa office as a member of the attorney, will focus exclusively on Business Institute in Tampa firm’s Construction practice. Estate Planning and Probate. in August.
Vivian Cortes Hodz – Frank T. Moya - Carlton Douglas A. Wallace - of Congratulations to Vivian Cortes Fields is pleased to announce that Brannock & Humphries Hodz of Cortes Hodz Family Frank T. Moya has joined the firm recently presented a webinar Law & Mediation, P.A., who in its Tampa office as a member of on the subject of “En Banc will serve as chair of the 2019 the firm’s Construction practice. Proceedings in Florida’s District Voluntary Bar Leaders Conference. Courts of Appeal” for the This annual conference, organized Patrick Reed - Burr & Appellate Practice Section of by the Florida Bar Voluntary Bar Forman LLP announces the The Florida Bar.
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5 8 NOV - DEC 2018 | HCBA LAWYER Jury trials Classified adVertising
For the month of August 2018 LABOR & EMPLOyMENT ATTORNEy. Judge: Hon. Brian J. Davis, USDC – Middle Immediate opening, 2-5 years’ experience. Labor & District - Jacksonville Employment and/or Litigation, Tampa office. Please Parties: Cathy Deck v. PetSmart, Inc. email: [email protected]. Attorneys: for plaintiff: Steven Earle; for defendant: Edward F. Gagain, III Nature of Case: Plaintiff alleged back injury following slip and fall accident and underwent SI joint fusion surgery. Plaintiff asked jury to award $2,161,000. Verdict: Plaintiff assigned 51 percent comparative fault; final judgment after reduction for comparative are you reCeiving fault and collateral source set-offs was $49,750. hCBa’s emaiLs? For the month of September 2018 hCBa regularly communicates with Judge: Hon. Michael E. Raiden members via email. stay in the know Parties: Jackson v. Harwood by making sure your email is Attorneys: for plaintiff: Mark A. Sessums; up-to-date in your member for defendant: William G.K. Smoak profile at hillsbar.com. Nature of case: Motor vehicle accident Verdict: Settlement of $535,000
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NOV - DEC 2018 | HCBA LAWYER 5 9 6 0 NOV - DEC 2018 | HCBA LAWYER
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