Summer 2013 Lawyer Magazine - Hillsborough County Bar ...

LAWYERTHE HILLSBOROUGH COUNTY BAR ASSOCIATIONTAMPA, FLORIDA | SUMMER 2013 | VOL. 23, NO. 7

THE HILLSBOROUGH COUNTY BAR ASSOCIATIONLAWYERSUMMER 2013 | VOL. 23, NO. 7DIVISIONS103 THANKS FOR AWONDERFUL YEAREditor’s Message by Amy R. Nath4 THE SONG IS YOUHCBA President’s Messageby Bob Nader8 ANOTHER GREAT YEARFOR THE YLD!YLD President’s Messageby Rachael L. Greenstein10 MACDILL’S COL. DETHOMASHIGHLIGHTS LAW DAYLUNCHEON; TPD CHIEF CASTORWINS LIBERTY BELL AWARDExecutive Director’s Messageby John F. Kynes12 INVOKING THE RULEState Attorney’s Messageby Mark A. OberFEATURESAND EVENTS9 YLD QUARTERLYLUNCHEON15 PRO BONO UPDATE:GOLD LETTER RECIPIENTS17 PRO BONO UPDATE:ASK-A-LAWYERVOLUNTEERSRECOGNIZED FOR 2012PRO BONO SERVICE26 FOLLIES GONE VEGAS28 SEC’S NEW GUIDANCEFOR USING SOCIAL MEDIAby Timothy M. Zwerner29 NEW ADMITTEESWEARING-IN CEREMONY30 THE LAW & LIBERTYDINNER 201342 2013 LAW DAYMEMBERSHIP LUNCHEON45 LAW WEEK COMPETITIONSTUDENT AWARDWINNERS55 “BEFORE THE LAWWAS EQUAL”61 TRIAL & LITIGATIONSECTION QUARTERLYLUNCHEON263061ABOUT THE POSTCARDSOne of Florida’s best-known beaches, Daytona Beach has attracted cars to its wide, packed-sand coastline sincethe early 20th century. Cars and motorcycles have been an inextricable part of the beach’s history and development.Fort Lauderdale, shown right and on Page 68, became a favorite destination of college students for spring break inthe 1950s.Special thanks to Raymond T. (Tom) Elligett, Jr., for supplying these and many of the other beautiful vintage postcardsfeatured on the covers and inside the Lawyer this year.JUNE 2013| HCBA LAWYER1

SECTIONS37 SUPREME COURTTACKLES IP ISSUESIntellectual Property Section3714 ANOTHER ORALARGUMENT ARTICLE...Appellate Practice Sectionby Duane A. Daiker16 IT IS FULL STEAM AHEAD FORTHE COLLABORATIVE PROCESS!Collaborative Law Sectionby Christine Hearn18 STILL CANNOT ESCAPE BEINGAN UNLICENSED CONTRACTORConstruction Law Sectionby Jeffrey M. Paskert andDara L. Dawson20 FAREWELL, CONTRACTECONOMIC LOSS RULE?Construction Law Sectionby Mark A. Smith22 THANK YOU FOR ASUCCESSFUL YEARCorporate Counsel Sectionby Eric Almon and Patricia Huie24 FDUTPA IN THE HANDSOF THE ATTORNEY GENERALCriminal Law Sectionby A. Tyler Catheyby Dineen Pashoukos Wasylik40 ELEVENTH CIRCUIT DECIDESFLSA RETALIATION ISSUELabor & Employment Sectionby Scott T. Silverman48 CAST OF CHARACTERS:PROFESSIONALS INFAMILY LAW CASESMarital & Family Law Sectionby Richard J. Mockler andChristine L. Derr50 UTILITY OF STATE APPELLATECOURT MEDIATIONMediation & Arbitration Sectionby Hilary High54 CITIES CANNOT CIRCUMVENT“FIRST IN TIME, FIRSTIN RIGHT”Real Property Probate & TrustSection by William J. Podolsky, IIIand Derek Larsen-Chaney56 EMERGENCY MEDICALCONDITION: PIP’SNEW FACELIFT TOREDUCE LITIGATION?Solo/Small Firm Sectionby Michael L. Broadus58 HOSPITALS & INDEPENDENTCONTRACTORS: A SPLITWORTH RESOLVING?Trial & Litigation Sectionby David W. HughesIN EVERY ISSUE51 HCBA 100 CLUB60 HCBA BENEFIT PROVIDERS66 AROUND THE ASSOCIATION67 JURY TRIAL INFORMATION67 ADVERTISING INDEXCOMMITTEES4141 REALIZING THE DREAM:EQUALITY FOR ALLLaw Week Committeeby James A. Schmidt52 WHEN AND HOW SHOULDA LAWYER WITHDRAWAS COUNSEL?Professionalism & Ethics Committeeby Hugh D. Higginsand Michael L. Forte56THE HILLSBOROUGH COUNTY BAR ASSOCIATIONLAWYERChester H. Ferguson Law Center1610 N. Tampa Street, Tampa, FL 33602Telephone (813) 221-7777, FAX (813) 221-7778EditorAmy R. NathExecutive DirectorJohn F. KynesADVERTISINGPR/Communications CoordinatorWendy Whittwendy@hillsbar.com, (813) 221-7779OFFICERS AND DIRECTORSPresident: Robert J. NaderPresident-Elect: Susan E. Johnson-Velez Immediate Past President: Pedro F. Bajo, Jr.Secretary: C. Christine Smith Treasurer: Robert J. ScanlanEx-Officio: Stanley A. Murphy Ex-Officio: Chief Judge Manuel Menendez, Jr.Ex-Officio: Judge Mark R. WolfeJ. Carter AndersenDeborah C. BlewsRachael L. GreensteinBenjamin H. Hill, IVS. Gordon HillKevin M. McLaughlinKristin A. NorseJohn A. SchifinoWes E. TrombleyGrace H. Yang(ISSN 1553-4456) THE HILLSBOROUGH COUNTY BAR ASSOCIATION Lawyer is published in September, November, December, February, March, May and June by the Hillsborough County Bar Association. Editorial, advertising, subscription, and circulation offices:1610 N. Tampa Street, Tampa, FL 33602. Changes of address must reach the Lawyer office six weeks in advance of the next issue date. Give both old and new address. POSTMASTER: Send change of address notices to Hillsborough County Bar Association,1610 N. Tampa Street, Tampa, FL 33602. One copy of each Lawyer is sent free to members of the Hillsborough County Bar Association. Additional subscriptions to members or firm libraries are $50. Annual subscriptions to others, $100. Single copy price, $15.00.(All plus tax.) Write to HCBA, 1610 N. Tampa Street, Tampa, FL 33602. The Lawyer is published as part of the HCBA’s commitment to provide membership with information relating to issues and concerns of the legal community. Opinions and positions expressedin the articles are those of the authors and may not necessarily reflect those of the HCBA. Submissions of feature articles, reviews, and opinion pieces on topics of general interest to the readership of the Lawyer are encouraged and will be considered for publication.2 JUNE 2013 | HCBA LAWYER

E D I T O R ’ S M E S S A G EAmy R. Nath, BayCare Health System, Inc.Thanks for a Wonderful YearI hope that you enjoyed reading this year’s issuesof the Lawyer magazine as much as I did.As the Bar year comes to a close, I findmyself extremely grateful for my experiencesas editor of the Lawyer magazine.I have had the privilege of reviewing each of theseven issues we published this year, and each review leftme with a real sense of pride tobe associated with such anesteemed membership. Ourmagazine authors profiled somegiants of our legal communitythis year: among them, FloridaBar President Gwynne Young(see John Kynes’ ExecutiveDirector’s Message in theSeptember-October 2012 issue),Judge E.J. Salcines (see BobNader’s HCBA President’sMessage in the March-April2013 issue), and Second DistrictCourt of Appeal Judge DanielSleet (see Raymond T. (Tom)Elligett’s article, on behalf theappellate practice section, in the May 2013 issue). Thesad news of Judge Don Castor’s recent passing gave usall cause to reflect on the myriad accomplishments ofhis professional and personal lives. The news remindedme of the inspiring afternoon I spent this past fall withHCBA President Bob Nader getting to know some of theincredible attorneys of Bay Area Legal Services, whichboasts Judge Castor as its first executive director.The substantive law articles produced by HCBAsection members have been a pleasure to read as well.I hope that, like me, you found them informative andbeneficial to your practice. I can think of a few occasionsin which an issue at work arose that jogged my memoryof something I had read about in this magazine!Of course, in addition to providing substantive legalinformation, the Lawyer magazine showcased work ourmembers do in the community at large. The communityservice, pro bono, and educational work our membersproduced this year despite busy schedules (throughsuch activities as Steak and Sports Day, Law Week, theFamily Forms Clinic, the “Before the Law Was Equal”documentary on the desegregation of the HillsboroughCounty legal community, andCLE luncheons, to name just afew) is truly admirable. In additionto developing camaraderiewithin our organization, theseactivities promote the value ofour membership throughoutHillsborough County.I cannot end the Bar yearwithout thanking some of thehuge group of people who madethe publication of the Lawyermagazine possible this year.HCBA President Bob Nader andHCBA Executive Director JohnKynes have been a constantsource of guidance all year, andsince accepting the editor position, I have effectivelyhad HCBA communications coordinator Wendy Whitton speed-dial to discuss all things related to magazinecontent. Tom Elligett has provided wisdom and hasbeen a remarkable resource for the stunning postcardimages featured in our magazine this year. Our Lawyermagazine editorial board has been insightful and alwayswilling to help. Free Press Publishing Companyproduced beautiful magazines that our organization isproud of, and our advertisers helped keep usoperational. I am indebted to all of the authors whosubmitted articles this year. Issue after issue, I was sopleased to see the enthusiastic responses to our requestsfor articles and to read so many excellent pieces. Finally,I thank our readers. I hope that you enjoyed reading thisyear’s issues of the Lawyer magazine as much as I did.Have a great summer!JUNE 2013| HCBA LAWYER3

H C B A P R E S I D E N T ’ S M E S S A G EBob Nader, The Law & Mediation Offices of Robert J. NaderThe Song Is YouThe Curtain Falls. The Drama’s Done. Bythe time you read this article (if you happento), my term will have ended and mylaudable successor and friend, SusanJohnson-Velez, will have taken over thehelm as president of our pre-eminent HillsboroughCounty Bar Association.What was the experience like? How High the Moon!You see, words cannot describe what an honor it hasbeen to lead this professional organization for a yearwhile serving our rank-and-file membership and workingwith, on an almost daily basis, the incredible staffmembers of our nationally renowned and respected barassociation. Never in the “Coney Island of My Mind”could I have foreseen years ago when I began my legalcareer, much less predicted as a long-ago initial castmember of the Law Follies, that I would have beenblessed with this grand opportunity. I have beenparticularly privileged to have collaborated and teamedup with the hard-working officers and directors of ourexecutive board, the resolute lawyers who comprise ouraccomplished Young Lawyers Division, and thededicated co-chairs of the HCBA’s many sections andcommittees, all of whom have generously given ofthemselves and volunteered their time to make this2012-2013 Bar year so uniquely successful.For me, the HCBA is like family. The friends I havehad the good fortune to make, coupled with the familiaracquaintances and faces I have gotten to know andrecognize, from my fellow lawyers and colleagues, to thecommunity of judges here in Tampa who are soinextricably a part of the HCBA, to the administratorsand young law students of both Stetson College of Lawand the Thomas M. Cooley Law School, to the officersand paralegals of the JAG Offices of both MacDill AirForce Base and CENTCOM, have been transcendentand inspirational.Make no mistake! The job was monumental. Therewere times when I felt “down for the count.” However,whenever I joyously celebrate and reflect upon this oncein-a-lifetimeexperience, I will always hear music downdeep in my heart, where the music is sweet and thewords are true. As to our diverse and gloriousmembership, a raised glass and a sincere toast, because“The Song Is You.”I would like to extend my special personal andheartfelt thanks to the following individuals for theirContinued on page 64 JUNE 2013 | HCBA LAWYER

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H C B A P R E S I D E N T ’ S M E S S A G EBob Nader, The Law & Mediation Offices of Robert J. NaderContinued from page 4achievements and gracious assistance that they providedthroughout my tenure:• Judge E.J. Salcines, my advisor and close friend, forhis boundless enthusiasm and the significantcontributions he delivered throughout the year;• Gwynne Young, for her ongoing participation andinvolvement in the HCBA as she valuably served herterm as president of the Florida Bar Association;• Pedro Bajo, Jr., for his considerable availability,rewarding advice and mentorship;• Victoria McCloskey and Rachael Greenstein, for theirextraordinary work in the creation of the HCBAhistorical documentary and legacy, “Before the LawWas Equal”;• Amy Nath, for her superb performance as a first-yeareditor of our extraordinary magazine, the Lawyer;• Tom Elligett, former HCBA president, for hisastounding and entertaining vintage postcardcollection that transformed the covers of eachpublication of our legal periodical;• Kristen Chittenden, for her stellar efforts and creativityrelated to the new and improved Law Follies 2013 —Follies Gone Vegas — with whom I had the distinctpleasure of producing this entertainment spectacle,and to all of its diligent cast members;• Lt. Colonel B. J. Cottrell, who ensured that the JAGOffice of the 6th Air Mobility Wing at MacDillremained actively involved with and committed tothe HCBA and who helped to arrange the guestspeakers for this year’s Law Day Luncheon;• Kelly Zarzycki Andrews, my friend and this year’sprogram chair for the membership luncheons;• Chief Judge Manuel Menendez, Jr., whom I haveknown since that legendary “Bus Ride” toGainesville, for his years of dedication and supportof the HCBA;• United States Circuit Court Judge Charles Wilson forhelping to facilitate the lovely tribute to former JudgeDonald Castor, who sadly passed in April;• The Chairs of the Judicial Pig Roast Committee and5K Pro Bono River Run for making this year’sContinued on page 7CreatingCommonGroundThirty years of active legal practicenot only brings an appreciation forthe nuances of the law but also insightinto the art of dispute resolution. Itis with this experience that attorneyClark Jorddan-Holmes has establishedMediation Fla, LLC. Clark is a certifiedcircuit court mediator,qualified familylaw & residential mortgage mediatoras well as a Martindale Hubbell AV peerreview rated trial attorney.For yournext mediation assignment, please call.Creating Common GroundMedia tion Fla, LLC / P. .O. Box 172297Tampa, FL 33672 / PH: 813-966-2626info@mediationfla.net/ www.mediationfla.netClark Jordan-Holmes(813) 966-2626Pre-suit MediationAll Litigation,including:Contract DisputesDebt/ForeclosureFamily LawLocal GovernmentIssuesPersonal Injury& InsuranceProduct LiabilityReal EstateTransit Transportation&6 JUNE 2013 | HCBA LAWYER

Continued from page 6consolidated happening thebest yet;• The Chairs of the DiversityCommittee, especially VictoriaMcCloskey, for revamping theannual diversity event so that itbecame truer to its originalinception;• Susan Johnson-Velez for hersupport and valued input andfor graciously standing in for mewhenever requested;• All of the Generous Sponsorsof our many events heldthroughout the year, especiallyThe Bank of Tampa, C1 Bank,the Lee D. Gunn Law Group, andSteven Yerrid; and• John Kynes, Laurie Rideout,Michele Revels, Wendy Whitt,Yolanda Lee, and all of thehard-working folks on thesecond floor of the Chester H.Ferguson Law Center LawCenter who, while granting metheir undying assistance, madethis engine run.To all of these wonderful peopleand for all of the phenomenaloccasions and events toward whichthey parlayed and devoted theirenergies, I am most grateful.If anyone should inquire downthe road about whether I enjoyedmy brief role as the somewhatfearless leader and face of this greatorganization, my response would gosomething like this — “I ReluctantlyRelinquished the Reins of thePresidency to My Successor.”I would also add, as Cole Porteronce penned, It Was Great Fun, ButIt Was Just One of Those Things.Finally... thank you, my dearestVivian, for all you have humblysacrificed over these many years foryour three attorney children, Bobby,Joyce, and George, who have beenlong-standing members of the HCBA.So Farewell, Happy Trails... andGOODNIGHT, MRS. KITTLE...wherever you are!JUNE 2013| HCBA LAWYER7

Y L D P R E S I D E N T ’ S M E S S A G ERachael L. Greenstein, Akerman Senterfitt LLPAnother Great Year for the YLD!We accomplished a great deal in such a short period of time, and ourorganization has much to be proud of this year.It is hard to believethat the HCBAYLD program yearhas ended. Weaccomplished a greatdeal in a short time, and ourorganization has much to beproud of this year. One of thebiggest honors the YLDreceived in 2013 is the FloridaBar Young Lawyers Division’sAffiliate of the Year Awardbecause of all the YLD’srecent achievements. Hereare some of the highlights:The YLD kicked off theyear with the annual GolfTournament at the RockyPoint Golf Course. We hadmore players than in any ofour past tournaments, and weraised a significant amount ofmoney to support the YLD’sevents and programs.The YLD also hostedfour luncheons on a varietyof topics. Florida SupremeCourt Justice Peggy Quincewas our first speaker of theyear and informed our groupabout the importance ofmerit retention. Lori Taplowspoke with the YLD inDecember regarding suggestionsfor creating balance betweenyour personal life andThe HCBA’s Young Lawyer Division received The Floridacareer. The YLD put on aBar Young Lawyers Division Affiliate of the Year Award. panel discussion in FebruaryPresident Rachael Greenstein and Florida Bar YLDPresident Paige Greenlee are joined by Adam Myron. Continued on page 98 JUNE 2013 | HCBA LAWYER

Y L D P R E S I D E N T ’ S M E S S A G ERachael L. Greenstein, Akerman Senterfitt LLPContinued from page 8titled “The ABC’s of Opening Your Own LegalPractice.” The panelists included Susan Johnson-Velez,Stuart Markman, Christina Anton Garcia, and DavidJennis. Everyone in attendance received CLE credit. Ourlast luncheon in May featured Judge Matthew Lucas, whospoke about pro bono service, and Judge RonaldFicarrotta, who provided us with the Thirteenth JudicialCircuit update. The luncheon was sponsored by TheBank of Tampa.We hosted our ongoing projects and annual eventswith great success this year as well, including JudicialShadowing, Holidays in January, the Honorable RobertJ. Simms Mock Trial Competition, Steak and Sports Day,Law Week, the State Court Trial Seminar and theCornhole for a Cause tournament benefiting BigBrothers Big Sisters. Additionally, we were able tocontinue the YLD’s partnership with Bay Area LegalServices in the Family Forms Clinic by providing ourmembers with an opportunity to provide pro bonoservice to our community.In addition, the YLD in conjunction with the HCBADiversity Committee produced a documentary filmchronicling the history of the desegregation of theHillsborough County legal community titled “Before theLaw Was Equal.” The film debuted at the Tampa BayHistory Center on April 10, 2013, and received a lot ofpositive feedback. The YLD intends to continuepromoting this film through a website available to thepublic that will archive the footage and materials obtainedduring the production of the documentary.I am incredibly thankful the YLD was able to achieveall that it has this year and would like to express mygratitude to everyone who contributed to our success.Specifically, I want to thank the members of the YLDBoard of Directors: Brad Barrios, Tammy Briant, DaraCooley, Ben Diamond, Anthony Martino, VictoriaMcCloskey, Web Melton, Melissa Mora, Erik Raines,James Schmidt, Jacqueline Simms-Petredis, Laura Ward,Jason Whittemore, Jeff Wilcox, and Kelly Zarzycki. I alsowant to thank all of our committee chairs who were atremendous help in coordinating the projects listed above.Additionally, I want to thank the HCBA staff, especiallyJohn Kynes, Laurie Rideout, Michelle Revels, WendyWhitt, and Amanda Uliano, who were all instrumental inassisting us to organize and staff our events. And last, butcertainly not least, I want to thank the HCBA president, BobNader, and the HCBA Executive Board for their support.It truly has been a spectacular year, and I am honoredthat I was able to serve as YLD president. I look forwardto continuing my service on the YLD Board of Directorsnext year and am confident that my successor will havean outstanding term in 2013-2014!YLD QUARTERLY LUNCHEONThe YLD Quarterly Luncheon held May 7, 2013, featured keynoteaddresses from Judge Ronald Ficarrotta and Judge Matthew Lucas.The annual YLD awards also were announced.Award recipients:n Robert W. Patton Outstanding Jurist Award:Judge Samantha L. Wardn Outstanding Young Lawyer: Laura E. WardLeft: Judge Matthew Lucas of the ThirteenthJudicial Circuit discusses pro bono service atthe YLD Quarterly Luncheon on May 7, 2013.Right: Laura Ward, recipient of the 2013Outstanding Young Lawyer Award, and HCBAExecutive Director John Kynes.Thank you to our sponsor:JUNE 2013| HCBA LAWYER9

E X E C U T I V E D I R E C T O R ’ S M E S S A G EJohn F. Kynes, Hillsborough County Bar AssociationMacDill’s Col. DeThomas HighlightsLaw Day Luncheon; TPD Chief CastorWins Liberty Bell Award“Freedom isn’t free, and it’s important that we don’t forget that.”— Col. Scott DeThomas, commander of the 6thAir Mobility Wing at MacDill Air Force BaseThat was the message delivered by Col.Scott DeThomas, commander of the 6thAir Mobility Wing at MacDill Air ForceBase, during his keynote address to the450 HCBA members who attended theHCBA’s annual Law Day Luncheon on May 21 at thedowntown Hilton.Referencing this year’s Law Day theme related toequality and freedom, Col. DeThomas reminded theaudience about the U.S. military’s efforts around the globeto support and defend democracy.More and more nations around the world areestablishing democratic forms of government becausethey want the same freedoms we enjoy, DeThomas said.But, he added, defending democracy sometimescomes at a great cost, including the 6,000 U.S. troopswho have lost their lives during the conflicts in Iraqand Afghanistan.Col. Scott V. DeThomas, commander of the 6th Air Mobility Wing atMacDill Air Force Base, delivered the keynote address at the HCBA’sannual Law Day Luncheon on May 21 at the Hilton Tampa Downtown.PHOTO BY JOSEPH BROWN III/JB3PHOTOGRAPHYPHOTO BY JOSEPH BROWN III/JB3PHOTOGRAPHYTampa Police Chief Jane Castor received the HCBA 2013 Liberty BellAward at the Law Day Luncheon. Castor is a 29-year veteran of thepolice department.Not every member of the military understands all thepolitical and cultural nuances of the Sunni or Shiite tribesthat exist in Afghanistan, DeThomas said, but “they doknow they are willing to sacrifice and serve their nationto protect the freedoms we enjoy day in and day out.”DeThomas said he appreciates the common “mission”the military shares with the judiciary and the legalcommunity regarding “adherence to the rule of law.”Concluding his remarks, DeThomas also thanked theHCBA members present for their continued support ofthe 10,000 active duty members of the military whowork at MacDill, as well as for their families.In addition to DeThomas’ keynote address at theluncheon, the 2013 Liberty Bell Award was presented toTampa Police Chief Jane Castor.Continued on page 1110 JUNE 2013 | HCBA LAWYER

E X E C U T I V E D I R E C T O R ’ S M E S S A G EJohn F. Kynes, Hillsborough County Bar AssociationContinued from page 10The Liberty Bell Award is presented annually to acitizen who does not practice law but who has workedtirelessly to preserve and strengthen our system of justice.Chief Castor is a “role model who leads by example,”said Jim Shimberg, general counsel with the Tampa BayLightning organization, who made the introduction andworked closely with Castor when he served as Tampacity attorney.“In her 29 years with the Tampa Police Department,she has made outreach to citizens and respect for the lawthe centerpiece of her work,” Shimberg said, “And, indoing so, she has made Tampa a safer and more secureplace for all its citizens.”Shimberg said Castor displayed extraordinaryleadership and diplomatic skills in dealing with the manyprotesters who were at the Republican NationalConvention held in Tampa last summer.The convention was a success and arrests were limited,Shimberg said, because Castor “treated the protesterswith respect and allowed them to exercise their FirstAmendment rights.”In accepting the award, Castor made a point to thankher law enforcement colleagues for their sacrifice andwork serving the community every day.“I simplify my life by doing the right thing for theright reason,” Castor said. “That has been a guidingprinciple for me during my career.”Meantime, the Law Day Luncheon also marks theunofficial end to the 2012-13 Bar year.And, under the outstanding leadership of HCBAPresident Bob Nader, there is no doubt it has been anexciting and eventful year.Even while working as a solo practitioner, and alsodealing with some health issues along the way, Bob hasbeen able to help the HCBA move forward and build onthe organization’s many strengths.Bob’s personal commitment to solidifying the HCBA’srelationship with the leadership and staff at the JudgeAdvocate General’s Office at MacDill is a prime exampleof his leadership success this year.From the membership luncheons throughout the year,the Bench Bar Conference and Judicial Reception, theHoliday Open House, the Diversity Networking Event,the Law Follies, the Tampa Bay Lightning game, thepremiere of the “Before the Law was Equal” diversitydocumentary, the Judicial Pig Roast and 5K Pro BonoRiver Run, the Law Day Luncheon, and the BarFoundation’s Law & Liberty dinner, there was somethingfor everyone. (See Law Day photos on Page 42 and Law &Liberty photos on Page 30.)And this does not include all the other outstandingCLE programs and other events held throughout theyear sponsored by the HCBA’s numerous committeesand sections, as well as the HCBA’s superb YoungLawyers Division, which was ably led by PresidentRachael Greenstein.I personally want to thank all the HCBA board membersfor their support and guidance throughout the year.And I’m confident incoming President SusanJohnson-Velez will do an outstanding job leading theHCBA in 2013-14.Additionally, I know the hard-working HCBA staffmembers will continue to serve the HCBA membershipto the best of their ability.Here’s hoping everyone has a great summer.See you around the Chet.JUNE 2013| HCBA LAWYER11

S T A T E A T T O R N E Y ’ S M E S S A G EMark A. Ober, State Attorney for the Thirteenth Judicial CircuitInvoking The RuleThe rule of sequestration is not merely a procedural rule about theconduct of a trial, but a rule that helps to ensure fairness in a trial.Frequently, witnesses can be seen lining thehallways of the Hillsborough CountyCourthouse Annex, awaiting their turn to giveevidence at trial. Although these witnesseshave been ordered to appear in court, the rulehas been invoked.Under Florida Statute § 90.616, “(a)t the request of aparty the court shall order,or upon its own motion thecourt may order, witnessesexcluded from a proceedingso that they cannot hearthe testimony of otherwitnesses.” This is knownas invoking the rule. Thepurpose of this rule ofsequestration “is ‘to avoida witness coloring his orher testimony by hearingthe testimony of another,’thereby discouraging‘fabrication, inaccuracyand collusion.’ Charles W.Ehrhardt, Florida Evidence§ 616.1, at 506 (1998 ed.).” 1 As such, witnesses are alsoprevented from discussing the nature and substance oftheir testimony while outside of the courtroom.There are exceptions to this rule. 2 One notableexception in criminal cases includes “the victim of thecrime, the victim’s next of kin, the parent or guardian ofa minor child victim, or a lawful representative of suchperson, unless, upon motion, the court determines suchperson’s presence to be prejudicial.” 3 This exception is notabsolute and the presence of witnesses in this categorycannot interfere with the defendant’s constitutional rightto a fair trial. 4If the court believes that a witness has violated therule of sequestration, remedies may include contemptproceedings against the witness or cross-examinationregarding that conduct. 5 While the court may alsoexclude the testimony of the witness who has violatedthe court’s order of sequestration, disqualification isnot automatic. 6 The court must first determine that“the witness’s testimony was affected by other witnesses’testimony to the extent that it substantially differedfrom what it would have been had the witness not heardthe testimony. Becauseof the Sixth Amendmentramifications, the courtmust carefully apply thistest before it excludesany material testimonyoffered by a defendant ina criminal case, and shouldalso consider whetherthe violation of the ruleof sequestration wasintentional or inadvertentand whether it involvedbad faith on the partof the witness, a party,or counsel.” 7The rule of sequestrationis not merely a procedural rule about the conduct of atrial, but a rule that helps to ensure fairness in a trial. Asstate attorney, I have an obligation to ensure that theconvictions that my office obtains through jury trials arebased upon truthful testimony elicited during a fair trial.1Knight v. State, 746 So. 2d 423, 430 (Fla. 1998).2Florida Statute § 90.616(2).3Florida Statute § 90.616(2)(d).4See, Cain v State, 758 So. 2d 1257, 1258 (4th DCA 2000);Davis v. State, 875 So. 2d 359, 372 (Fla. 2003).5Holder v. U.S., 150 U.S. 91, 14 S. Ct. 10, 37 L.Ed.1010 (1893).6United States v. Schaefer, 299 F.2d 625, 631 (7th Cir. 1962).7Wright v. State, 473 So. 2d 1277, 1280 (Fla. 1985).12 JUNE 2013 | HCBA LAWYER

ANOTHER ORAL ARGUMENT ARTICLE...Appellate Practice SectionChairs: Kristin A. Norse - Kynes, Markman & Felman, P.A.; and Ezequiel Lugo - Butler Pappas Weihmuller Katz Craig LLPAdvice on appellate oralargument is a populartopic because oralargument can be avery intimidating experience.Even experienced lawyers usuallyhave few opportunities to practicethis mysterious craft. Thoughevery appellate lawyer will likelyhave a slightly different list of topsuggestions for oral argument,these are some of the mostcommonly heard bits of goodadvice for your next argument.Arrive EarlyOral argument is stressfulenough without the added pressureof arriving late to an unfamiliarcourthouse. Allow plenty of timefor travel,especially if theargument is outof town. It is farbetter to spendsome extra timein the parkinglot studying yournotes than toarrive at the lastminute, or missthe argumentaltogether.Know theRecordA strongworkingknowledge of theappellate recordis essential. Thepanel will oftenseek clarification of any disputedrecord issues at oral argument.Questions about record facts notdiscussed in the briefing are fairlycommon. An appellate lawyer’sinability to answer questions aboutthe record can seriously underminethe credibility of the argument.Even if you were not the trialOral argument isconsidered by manyto be the pinnacle ofadvocacy, and can bevery rewarding.lawyer, you haveto put in thetime to masterthe record.Do Not RelyHeavily onNotesAlthough thereis nothing wrongwith having anoutline of keypoints at thepodium, youshould not haveto rely heavilyon your writtenmaterials. Oralarguments arevery interactive,and rarelyproceed in apredictable fashion. You have tobe prepared to alter your plannedargument to best suit the flowof questions from the court—which often means speakingextemporaneously. Use your notesas a tool, not as a crutch.Continued on page 1514 JUNE 2013 | HCBA LAWYER

ANOTHER ORALARGUMENT ARTICLE...Appellate Practice SectionContinued from page 14Answer the QuestionsOne of the worst mistakeslawyers make is avoiding orpostponing questions from thepanel. Sometimes lawyers do notwant to answer difficult questions,or just do not want to change theorder of their planned argument.Whatever the reason, this is anunworkable strategy. When a judgeasks a question, addressing thatspecific issue must be your toppriority. Even if the answer isharmful to your argument, you mustconfront the issue openly. Admittingpotential problems with your case,but explaining them away as bestyou can, is the most effective tactic,and will earn the court’s respect.Know When to StopAs lawyers and advocates, weoften want to use all of our allottedtime at oral argument. However,fight the urge to “fill” your time.When you have made your plannedargument and answered anyquestions, sit down. Rehashingpoints already made, or continuingto argue well-established points, iscounterproductive. The panel willappreciate your confidence in yourposition, and your respect for thecourt’s time.The next time you are preparingfor an oral argument, consider thislist of well-established tips. Oralargument is considered by manyto be the pinnacle of advocacy, andcan be very rewarding. So prepare,relax...andremember to enjoythe experience!Author:Duane A. Daiker,Shumaker, Loop& Kendrick, LLPSave the Datesfor 2013HCBA Membership LuncheonHilton Tampa DowntownSeptember 10Bench Bar Conference,Luncheon, and Judicial ReceptionHilton Tampa DowntownNovember 6Holiday Open HouseChester H. Ferguson Law CenterDecember 5Learn more about HCBA eventsat www.hillsbar.comStay ConnectedPRO BONO UPDATE:Gold Letter RecipientsThe following attorneys were recognized at the 2013 ThirteenthJudicial Circuit Pro Bono Awards Ceremony held on April 25, 2013, fortheir donation of 100 pro bono hours or more in 2012. Their names werenot listed as Gold Letter Recipients in the last edition of the Lawyer:n Patrick Skeltonn Rachel May ZyskJUNE 2013| HCBA LAWYER15

IT IS FULL STEAM AHEAD FOR THE COLLABORATIVE PROCESS!Collaborative Law SectionChairs: Fraser J. Himes - Himes & Hearn, P.A.; and Caroline Black Sikorske - Mason Black & Caballero, P.A.There has been a flurryof activity within ourcollaborative community,and the HCBACollaborative Law Section, onlyin its first year as Florida’s first barcollaborative law section, is gainingmomentum! Fraser Himes andCaroline Black, next year’s sectionchair, spoke at the March sectionluncheon about the importanceof using acomprehensiveand effectiveparticipationagreement (theagreement of theparties and theirlawyers not togo to court).They emphasizedthat collectiveunderstanding,informed consent,and commitmentto every provisionin the agreementis imperative toa successfulcollaborative case.Tampa Bay’s two local practicegroups recently co-hosted asuccessful two-day basic trainingThe HCBA CollaborativeLaw Section will playa key role in localapplication anddevelopment of thecollaborative process.with 70 attendeesand a one-dayadvanced trainingwith more than50 attendees.Many localprofessionals arenow educated inthe process andeager to practicetheir new skills.On April 4,the Tampa BayCollaborativeDivorce Groupheld a facilitatedretreat designedto rejuvenateand focus thegroup’s energies. Members spentContinued on page 1716 JUNE 2013 | HCBA LAWYER

IT IS FULL STEAM AHEAD FOR THE COLLABORATIVE PROCESS!Collaborative Law SectionContinued from page 16the afternoon brainstormingstrategies to maximize theirpotential, and several tasks weredelegated to convert their ideasinto action. Linda Wray, thecurrent treasurer of theInternational Academy ofCollaborative Professionals(“IACP”), spoke at the April 10,2013, meeting of the CollaborativeDivorce Institute of Tampa Bay,explaining the results of anextensive IACP research projectas well as ethical considerations incollaborative cases. In attendancewere members of both localcollaborative practice groups, manynew trainees, Judge Paul Huey,and numerous other professionalsinterested in the process. TheCollaborative Family Law Councilof Florida worked diligently on theInaugural Collaborative LawConference, held May 17-18 inTampa at the Grand Hyatt. Theconference, featuring renownedspeakers such as Woody Mosten,IACP President Catherine Conner,and Florida Supreme Court JusticeBarbara Pariente, provided indepthworkshops on cutting-edgetopics and an excellent opportunityto network with collaborativeprofessionals from around the state.The Training and CertificationSubcommittee of the Mediationand Arbitration Section of theFlorida Bar is rapidly developingstandards for Board Certificationby the Supreme Court inCollaborative Law. Severalprofessionals at the local and statelevel are implementing pro bonoand reduced-fee initiatives andare hoping to develop uniformityin this area throughout the state.One of the benefits of beinga member of the CollaborativeLaw Section is sharing information,knowledge, and materials withfellow members. Practitioners neednot “reinvent the wheel” whentaking on a collaborative case.Most section members knowthat well-accepted versions of theparticipation agreement and Codeof Conduct are readily available.Written protocols also exist andhave been, or will be soon, adoptedby our local practice groups.The protocols are the “Rules ofthe Road” for the collaborativeprocess and should be followedwith uniformity and consistency.The synergy between our localand statewide collaborative practicegroups and the state council createsan environment ripe for growth.The HCBA Collaborative LawSection will play a key role in localapplication and development ofthe collaborativeprocess as itsuse expands.Author:Christine Hearn,Himes &Hearn, P.A.PRO BONO UPDATE:Ask-a-Lawyer Volunteers Recognizedfor 2012 Pro Bono ServiceThe following Ask-a-Lawyer volunteer attorneys were recognized recently fortheir donation of 20 hours or more of pro bono service in 2012. Their names were notlisted in the last edition ofthe Lawyer:n Dale Steven Appelln Mark J. Aubinn Thomas Hyden A.J. “Stan” Musial, Jr.n Rinky Parwanin Lawrence Samahan William SchwarzJUNE 2013| HCBA LAWYER17

STILL CANNOT ESCAPE BEING AN UNLICENSED CONTRACTORConstruction Law SectionChairs: Jason J. Quintero - Carlton Fields, P.A.; and Jeffrey M. Paskert - Mills Paskert Divers P.A.For several decadesFlorida’s Legislature andcourts have taken steps toprotect the public fromunlicensed contractors. In 1990,the Legislature passed FloridaStatute § 489.128, which renderedunenforceable all agreements withunlicensed contractors. For anumber of years thereafter, courtswrestled with the issue of just whowas prohibited from enforcingagreements with unlicensedcontractors. For example, severalcourts applied the judicial doctrineof in pari delicto to prevent a partywho knowingly contracted with anunlicensed contractor from enforcingthe contract. The Legislatureamended Section 489.128 in 2003,however, toclarify that thestatute prohibitsonly theunlicensedcontractor, andnot the partythat hired it,from enforcingthe constructioncontract.Recently,the FloridaSupreme Courtcontinued thistrend, andspecificallyheld that anunlicensedcontractorcannot employthe commonlaw defense ofin pari delicto toescape liability.See EarthTrades, Inc. v.T&G Corp., 2013 WL 264440, —So. 3d — (Fla. Jan. 24, 2013). InEarth Trades, a general contractorhired an unlicensed subcontractor[Earth Trades]re-emphasizes Floridalaw and public policyprotecting the publicagainst unlicensedcontractors, and penalizingcontractors that choose notto obtain required licenses.to perform sitework, knowingat the timethat thesubcontractorwas not licensed.A dispute arose,and the generalcontractor suedthe unlicensedsubcontractorand itssurety. Thesubcontractorand its suretymoved forsummaryjudgment,arguing thatthe generalcontractor wasbarred fromenforcingthe contractbecause theparties werein pari delicto,equal wrongdoers, as the generalcontractor knowingly had hired anContinued on page 1918 JUNE 2013 | HCBA LAWYER

STILL CANNOT ESCAPE BEING AN UNLICENSED CONTRACTORConstruction Law SectionContinued from page 18unlicensed subcontractor. Both thetrial court and the Fifth DistrictCourt of Appeal rejected thesubcontractor’s argument.The Florida Supreme Courtaffirmed, primarily based upon thefundamental principles underlyingthe in pari delicto doctrine, andthe intent behind Section 489.128.First, the Supreme Courtexplained that in pari delictoapplies only if parties participatedin the same wrongdoing and sharesubstantially equal fault. The courtthen focused on the language ofSection 489.128, as amended,which provides:As a matter of public policy,contracts entered into on orafter October 1, 1990, by anunlicensed contractor shall beunenforceable in law or in equityby the unlicensed contractor.The Supreme Court reasonedthat the Legislature intended topenalize unlicensed contractors aswrongdoers, and expressly did notalter any rights or remedies availableto the other contracting parties. Thecourt determined that an unlicensedcontractor is the primary wrongdoer,and a party that knowingly hires itis not equally at fault. Accordingly,the court held that a party’sknowledge of a contractor’sunlicensed status is insufficient, asa matter of law, to place the partiesin pari delicto, making this defenseunavailable to unlicensedcontractors and their sureties.This holding re-emphasizesFlorida law and public policyprotecting the public againstunlicensed contractors, andpenalizing contractors thatchoose not to obtain requiredlicenses. Unlicensed contractorscannot enforce contracts, cannotsue to recover payments or assertlien rights, and face criminalprosecution and costlyadministrative fines. The EarthTrades decision clearly removesone argument some unlicensedcontractors previously had raisedto avoid the consequences oftheir omissions.Authors:Jeffrey M. Paskertand Dara L.Dawson, MillsPaskert Divers P.A.JUNE 2013| HCBA LAWYER19

FAREWELL, CONTRACT ECONOMIC LOSS RULE?Construction Law SectionChairs: Jason J. Quintero - Carlton Fields, P.A.; and Jeffrey M. Paskert - Mills Paskert Divers P.A.The Economic LossRule (“ELR”) limits thecircumstances in whicha tort claim will lie ifthe plaintiff suffers only economiclosses. Since adoption by Floridacourts, the ELR’s application hasbeen labeled everything from“somewhat ill-defined” (Moransaisv. Heathman) to a “confusing morass”by the Florida Supreme Court.Indemnity Insurance Co. of NorthAmerica v. American Aviation, Inc.Since Indemnity Insurance,application of the ELR was limitedto circumstances in which: (1) theparties are in contractual privity;or (2) thedefendantmanufacturesor distributes adefective productthat damages onlyitself (subject toseveral establishedexceptions). InMarch 2013, theFlorida SupremeCourt made asubstantial shiftin Florida’sapplication ofthe ELR. In TiaraCondominiumAssociation, Inc.v. Marsh &McLennanCompanies, Inc.,the courtexpressly held theapplication of theELR is limited toproducts liability cases.Tiara arose from the EleventhCircuit’s certification of a questionFor now, counsel willneed to be watchfulto prevent “contractlaw from drowning in asea of tort” as the Tiaradissenters warned.to the courtregarding theprofessionalservicesexception tothe ELR. Inits decision, thecourt focusedon perceivedproblems in thedevelopment inthe ELR. Thecourt rejectedthe “contractualprivity” aspectof the ELRclarified inIndemnityInsurance, andstated “theapplication ofthe economicloss rule islimited toproducts liabilitycases,” explaining it adopted theContinued on page 21THANK YOU TO THE ATTORNEYSWHO PARTICIPATED IN ASK-A-LAWYERIN MAY 2013n Dale Appelln Mark Aubinn Tom Hyden Bill Schwarzn Stan Musialn Daniel Hamiltonn Chip Wallern Lawrence Samahan Brent Rosen Michael Broadusn John Mulvihilln Dennis Morgensternn Matthew Hatfieldn Lesly Longan Chris Debarin Kemi OguntebiTo volunteer for the Ask-A-Lawyer programs, please contact theHCBA Lawyer Referral & Information Service at 813-221-7783.TM20 JUNE 2013 | HCBA LAWYER

FAREWELL, CONTRACT ECONOMIC LOSS RULE?Construction Law SectionContinued from page 20contractual privity rule “to preventparties to a contract fromcircumventing the allocation oflosses set forth in the contract bybringing an action for economicloss in tort.” The majority statedthat expansion of the rule beyondthese origins was unwise andunworkable in practice.Justice Barbara J. Parienteconcurred and stated that in orderto bring a valid tort claim, a partystill must demonstrate that thetort is independent of any breachof contract claim. Justice Parientestated that when parties havenegotiated remedies fornonperformance of a contract,one party may not seek a betterbargain by turning a breach ofcontract claim into a tort claim.The majority determined that itis common law principles ofcontract, not the economic lossrule, that produces this result.Dissenting, Justice RickyPolston stated, “withoutjustification, the majority greatlyexpands the use of tort law at acost to Florida’s contract law”and the ruling “obliterates theuse of the doctrine when theparties are in contractual privity,greatly expanding tort claimsand remedies available withoutdeference to contract claims.”Justice Charles T. Canady notedthe majority’s opinion unsettledFlorida law and failed to explainhow the economic loss ruleis workable and wise in theproducts liability context, butnot so in the context of contractbasedrelationships.The effects of this decisionremain to be seen. Defendantschallenging tort claims previouslycovered by the ELR will now haveto rely on the “basic commonlaw principles” to which JusticePariente referred. This may resultin confusion in the courts ifarguments based on these principlesare adopted unevenly. For now,counsel will need to be watchfulto prevent “contract law fromdrowning ina sea of tort”as the Tiaradissenters warned.Author:Mark A. Smith,Carlton Fields, P.A.THE HCBA WELCOMES ITS NEW MEMBERSAPRILM A YCamille BlakeJacob BrainardWilliam BreesBritni BussCassandra CarlsonDesiree ColsonGary CorsSuzanne DeCopainPatrick DelaneyBlake FredricksonSatyen GandhiHunter HigdonOwen KohlerAmanda KotulaKaren LloydAndrew McCainMichael MillettEric MoodyShawn NalesStacy OrtizSienna OstaTeresa RajalaEdward RoyerMichael SciontiKaren ShimonskyPhillip SilitschanuShawn SimonMichael SorianoRené SpoonJonathan TannenBetty ThomasJames Thorpe Jr.Stephanie ValentineKathryn Ashley Sundeep NathBrook BakerAngela PayePatrick Barthle II Veronica RiveraJoel BermanMatthew SchroederSara Blackwell Kendra ShawShanti Chadeesingh Elizabeth StringerHannah ChoiMitchell TheodoreTerin CremerElizete VeladoCassandra DenmarkAndrew DenzerChristopher DoneganZarra EliasDeborah GetzoffRickisna Hightower-SingletaryRobert HubbardNicholas LeRoyRyan McGeeJUNE 2013| HCBA LAWYER21

THANK YOU FOR A SUCCESSFUL YEARCorporate Counsel SectionChairs: Eric Almon – Holland & Knight, LLP; and Patricia Huie – Intelident Solutions, Inc./Coast Dental Services, Inc.This has been an excitingand productive year forthe Corporate CounselSection. Our primarygoal was to initiate and maintaininformal contacts among theattorneys practicing withincorporations and in corporatepractice in the Tampa Bay area. Atthe same time, we were focused onincreasing membership participationin the Corporate Counsel Section.Thanks to the support of everyoneat the HCBA, we have beensuccessful on both fronts.In October, we held a paneldiscussion titled “CorporateCounsel and Diversity: A Viewfrom the Inside Out.” Our panelistsincluded lawyers Leslie Stein, NeilArchibald, Carly Todd, and LuisViera, each of whom shareddifferent perspectives on corporatediversity issues with the audience.The moderator for the paneldiscussion was Victoria McCloskey,who is co-chair, along with LuisViera, of the HCBA DiversityCommittee. We would like toextend special thanks to Victoriaand Luis for their guidance indeveloping the discussion andproviding these two new co-chairswith valuable advice.In January, we held a discussiontitled “Cover Your Assets:CorporateCounsel’s Guideto Recognizingand ProtectingYour Company’sIntellectualProperty.” ToddTimmerman andSuzi Martenyprovided severalcase studiesoutlining commonintellectualpropertyscenarios,followed byan engagingdiscussion withthose inattendance.This interactionhighlights howthe CorporateCounsel Sectioncan bring expertsand practitionerstogether to discuss practicalsolutions to difficult legal issues.In March, we were fortunateenough to host Mac McCoy andJoanna Garcia, who delivered awonderful presentation, “LegalEthics in the New Digital Frontier:15 Potential Ethical Pitfalls forIn-House Counsel Using SocialMedia.” The presenters areextremely knowledgeable aboutthis emerging topic and providedexcellent advice in a fun andinformative discussion.Finally, in May we held apanel discussion titled “The FiveQualities of Highly EffectiveOutside Counsel.” Our panelists,Harold Oehler, Kelly Lefferts,and Kenneth Turkel discussedthe qualities that in-house counselWe are amazed by thebreadth of knowledgeand experience thatthe Corporate CounselSection membershiphas to offer, and weare excited to seethat membershipcontinue to grow.value most inoutside counsel,includingeffectivemarketingstrategies,expectationsof corporatecounsel, bestbilling practices,the hiringprocess, commonmissteps byoutside counsel,and keys tobuilding a longtermrelationship.We would alsolike to thank themany memberswho volunteeredto author articlesfor the HCBALawyer magazine,some of whomwe had toturn away for lack of print space.It is wonderful to see that theCorporate Counsel Sectionmembership is so engaged andinterested in sharing its perspectiveand insight.On a final note, we would liketo express our sincere appreciationfor the opportunity to serve asco-chairs of the CorporateCounsel Section. We are amazedby the breadth of knowledge andexperience that the CorporateCounsel Section membership hasto offer, and we are excited to seethat membership continues to grow.Authors: Eric Almon, Holland& Knight, LLP; and Patricia Huie,Intelident Solutions, Inc./CoastDental Services, Inc.UPDATE YOUR CONTACT INFORMATION WITH THE HCBA. CALL (813) 221-7777.22 JUNE 2013 | HCBA LAWYER

“IF YOUR ACTIONS INSPIRE OTHERSTO DREAM MORE, LEARN MORE, DO MOREAND BECOME MORE, YOU ARE A LEADER.”—JOHN QUINCY ADAMSTHE HCBA LEADERSHIP INSTITUTEIS NOW ACCEPTING APPLICATIONS!HCBA Leadership Institute seeks to identify and develop young attorneys of diversebackgrounds who have the potential to develop into future leaders.The Leadership program is designed to:n Develop the professional andinterpersonal skills necessary tosucceed in a group dynamic;n Develop the skills necessary tosucceed in a leadership role inprofessional, service, and extracurricular activities;n Expose and discuss issues facinglegal professionals to include timemanagement, public relations,and community involvement;n Increase knowledge of serviceopportunities in the HCBA and othercommunity outreach programs;n Identify areas in which participantswould like to provide volunteerservice to their community.Now is the timeto get involved!The Leadership program consists of learningmodules and culminates with the completion ofa community service project chosen, managed,and completed by Leadership participants. TheLeadership program has been designed to helpparticipants gain and develop skills, knowledge,and relationships that will help them emerge asfuture HCBA and Tampa community leaders.Download the Leadership Institute application from the HCBA’s website, www.hillsbar.com.For more information, please contact John Kynes at jkynes@hillsbar.com.JUNE 2013| HCBA LAWYER23

FDUTPA IN THE HANDS OF THE ATTORNEY GENERALCriminal Law SectionChairs: Mark P. Rankin – Shutts & Bowen LLP; and Joseph C. Bodiford – Bodiford Law, P.A.The Attorney General(“AG”) is responsible forprotecting consumersfrom fraud and enforcingFlorida’s antitrust laws. The AGhas a battery of enforcementmechanisms, the most potent ofwhich is Florida’s Deceptive andUnfair Trade Practices Act(“FDUTPA”). 1 Protecting yourclient during an AG economic-crimesinvestigationrequires athoroughunderstating ofFDUTPA, insightinto how theAG investigatesand litigatesthese cases, anda strong yetnimble defensivegame plan.FDUTPAinvestigationscan spring fromconsumercomplaints,concernedcompetitors,or attorneyswishing to bringWith the AG, subpoenaresponse times are short,relevance is assumed,and the burden isconsidered the cost ofdoing business.consumer-relatedissues to theAG’s attention.FDUTPA alsoprovidesauthority forthe AG tocommence aninvestigationon its own accordif it has reasonto believe aviolation may beoccurring. 2 Whilethe AG’s claimmay ultimatelynot be viable,the investigationalone can wreakContinued onpage 2524 JUNE 2013 | HCBA LAWYER

FDUTPA IN THE HANDS OF THE ATTORNEY GENERALCriminal Law SectionContinued from page 24havoc on your client’s business.Subpoena response times are short, 3relevance is assumed, 4 and theburden is considered the cost ofdoing business. 5Beyond self-initiatinginvestigations, FDUTPA alsoallows the AG to seek injunctiverelief, damages, and declaratoryjudgments. 6 While someinvestigations take months or years,the AG often seeks a temporaryinjunction to stop ongoingviolations. If the AG obtains aninjunction, the fallout can besubstantial and can includeappointment of a magistrate orreceiver, freezing assets, specificperformance, striking or limitingcontractual provisions, divesture ofany interest in any enterprise(including real-estate), dissolution,and reorganization. 7 Additionally,civil penalties may be assessed atup to $10,000 per violation 8 withattorneys’ fees and costs tackedon. 9 Because penalties are assessedper violation, the size of thesepenalties mounts quickly.Understanding what does anddoes not work in defendingFDUTPA investigations is critical inrepresenting your clients. FDUTPAis a strict liability statute meaninggood faith arguments are adead-end. 10 Similarly, compliancewith industry-wide custom is not aviable defense. 11 The fact that yourclient serves only businesses and notindividuals is irrelevant, 12 and thefact that your client has plenty ofsatisfied customers will not helpeither, as the existence of somesatisfied customers is no defenseto liability. 13 Further, to the extenta corporate officer participatesdirectly in a violation, the corporateveil may not insulate him or herfrom liability. 14 Finally, assumingthat the AG must prove everyindividual transaction as deceitful isa foolhardy strategy. 15 The AG canprevail with a representative sample— usually by compiling customeraffidavits — showing that areasonable consumer would likelybe misled by an act or practice.Most cases the AG pursues areresolved before litigation throughan Assurance of VoluntaryCompliance (“AVC”). 16 An AVC isusually conditioned upon acommitment to reimburseconsumers or government entities,make contributions, pay civilpenalties, pay attorneys’ fees andcosts, or take other appropriatecorrective action. While an AVCcannot serve as evidence of a priorviolation under FDUTPA, asubsequent failure to comply withone is prima facie evidence of aFDUTPA violation. 17Well-informed counsel canadvise businesses on navigating anAG investigation and defendingpotential litigation.1Others include RICO, Antitrust,Civil Theft, and False Claims.2Fla. Stat. § 501.206(1); FloridaDept. of Ins. and Treas. v. Bankers Ins.Co., 694 So.2d 70, 73 (Fla. 1st DCA1997), citing U.S. v. Morton Salt Co.,338 U.S. 632, 642 (1950).3Investigative subpoenas underFDUTPA may provide for no less thanfive days response time, excludingweekends and legal holidays, Fla. Stat.§ 501.206(1).4Bankers, 694 So. 2d at 73; F.T.C. v.Invention Submission Corp., 965 F.2d1086, 1090 (D.C. Cir. 1992); cert denied,507 U.S. 910 (1993).5F.T.C. v. Texaco, Inc., 555 F.2d 862,882 (D.C. Cir. 1977).6Fla. Stat. § 501.207(1).7Fla. Stat. § 501.207(3).8Fla. Stat. § 501.2075.9Fla. Stat. § 501.2105.10Orkin Exterminating Co. v. F.T.C.,849 F.2d 1354, 1368 (11th Cir. 1988).11P.F. Collier & Son Corp. v. F.T.C.,427 F.2d 261 (6th Cir. 1970).12The statutory definition ofconsumer specifically includesbusinesses. Fla. Stat. § 501.203(7);Tampa Bay Storm, Inc. v. Arena FootballLeague, Inc., 1998 WL 182418 (M.D.Fla. 1998) (unreported opinion).13F.T.C. v. Wilcox, 926 F. Supp.1091, 1099 (S.D. Fla. 1995)14Id. at 1104.15Id. at 1099.16Fla. Stat. §501.207(6).17Id.Author: A. TylerCathey, Englander& Fischer, P.A.HCBA Lawyer Referral & Information ServiceInterested in participating in the Lawyer Referral & InformationService program? Contact LRIS Director Lupe Mitcham at(813) 221-7783 or email lupe@hillsbar.com.JUNE 2013| HCBA LAWYER25

Follies Gone VegasHCBA President Bob Nader and showdirectors Kristen Chittenden and DannyCamacho revived the Law Follies in 2013.A talented cast of lawyers and judgesseemingly transported the rapt audience fromCohen Hall to a Vegas nightclubwith their singing, dancing, and otheroutstanding performances.Thank you to our sponsors:STANDING OVATIONBRAVOBurr & Forman LLP, formerly Williams SchifinoTrial Consulting Services, LLCCURTAIN CALLHill Ward HendersonOgden & Sullivan, P.A.TAKE A BOWAmy S. FarriorShumaker, Loop & Kendrick, LLPThe Law & Mediation Offices of Bob NaderThompson StudiosTrenam Kemker26 JUNE 2013 | HCBA LAWYER

JUNE 2013| HCBA LAWYERPhotos by Bob Thompson of Thompson Studios.27

S P E C I A L F E A T U R ETimothy M. Zwerner, Fowler White Boggs P.A.SEC’s New Guidance For Using Social MediaSocial media may well be a useful tool to public companiesfor communicating with the marketplace.On July 3, 2012, Reed Hastings, chiefexecutive officer of media-giant Netflix,Inc., posted on his Facebook page newsthat Netflix’s monthly viewing exceededa billion hours for the first time — asignificant milestone for Netflix. From the time of theFacebook post to the close of trading the following day,Netflix’s stock rose from $70.45 a share to $81.72 a share.Following Hastings’ post, the Securities and ExchangeCommission Division of Enforcement (“SEC”), pursuantto Section 21(a) of the Securities Exchange Act of 1934,launched an investigation into Netflix and Hastings. Theresults of the investigation were released by the SEC onApril 2, 2013, in Release No. 69279 (the “Report”). Inthe Report, the SEC explores the impact of RegulationFair Disclosure (17 C.F.R. §243.100 et seq. “Reg FD”) onsocial media channels and offers new guidance to publiccompanies desiring to utilize the ever-evolving modes ofsocial media as a means of disseminating information tothe public.Generally speaking, Reg FD prohibits publiccompanies from disclosing material, non-publicinformation to a select group of individuals where it isreasonably foreseeable that such persons will trade on thedisclosed information. Reg FD also provides for certainameliorative actions a public company can take in theevent of inadvertent disclosure. Reg FD is intended topromote transparency and equality of access toinformation with respect to the trading markets. Hastings’Facebook post was problematic in that, among otherthings, Netflix had not previously used Hastings’Facebook page as a means of disseminating informationto the public and, consequently, the post may haveyielded inequality to information in the marketplace. Itfollows then that, without advanced notice, employingsocial media as an outlet for disseminating materialinformation (in other words, making a public disclosure)runs afoul of Reg FD and is not an acceptable methodof disseminating information.As the Report suggests, however, social media may wellbe a useful tool to public companies for communicatingwith the marketplace, if employed properly. The SECacknowledged in the Report that they “do not wish toinhibit the content, form, or forum of any such disclosure[disclosures made through social media channels] and we[the SEC] are mindful of placing additional complianceburdens on issuers.” The SEC goes on in the Report tourge issuers to take necessary steps to “alert the marketabout which forms of communication a company intendsto use for the dissemination of material, non-publicinformation, including social media channels that maybe used...” In other words, social media sites suchas Facebook and Twitter may be employed forcommunicating with the marketplace provided these sites,and the communications therefrom, comply with Reg FDand other securities laws. More specifically, the publicneeds to know in advance which social media sites acompany intends to utilize for the dissemination ofmaterial information.The takeaway message then for public companies isthis: First, be sure to carefully conduct a Reg FD analysisbefore employing any social media channels as a meansof communicating with the marketplace; second, be sureto adequately disclose or identify specific social mediasites the company will use to disseminate material, nonpublicinformation (public companies should considerlisting these germane social media sites in their pressreleases and SEC filings and including links on theircompany website); and finally, companies should adoptpolicies specifically relating to personal social media sitesfor individuals, specifically officers and executives,employed by the company (the best practice and mostconservative course of action may very well beprohibiting personal disclosure of company information).28 JUNE 2013 | HCBA LAWYER

New Admittee Swearing-In CeremonyCongratulations to the newest members of the Florida Bar! The new admitees were sworn in on April 19, 2013, at the GeorgeEdgecomb Courthouse.Judge Ronald Ficarrotta presided over the ceremony, and Judge Frances Perrone spoke about the importance of practicingwith professionalism and ethics.Thank you to our sponsors:JUNE 2013| HCBA LAWYER29

The Law & Liberty Dinner 2013The Hillsborough County Bar Foundation’s Law & Liberty Dinner featured CoachMike Krzyzewski, Duke University men’s basketball coach and the winningestcoach in NCAA Division I men’s basketball history.Humorous and charming, Coach K engaged the rapt audience that filled theballroom at the Hilton Tampa Downtown on May 16, 2013. He shared leadership tipsand inspired the crowd with stories about his coaching experiences, particularlywhile leading the 2008 and 2012 U.S. men’s Olympics teams to gold medals.Coach K posed for pictures with sponsors and other attendees at the VIPreception preceding the dinner.The Foundation offered outreach grants to provide financial support to the BayArea Legal Services L. David Shear Children’s Law Center, The Spring of TampaBay’s After Hours Personal Protection Injunction Program, and Voice for Childrenbenefiting the Guardian ad Litem program.Many thanks to the sponsors:The Centers (Marquee Sponsor),The Bank of Tampa and The YerridLaw Firm (Premier Sponsors), andthe other generous sponsors(See full list on Page 32).Photos by Bob Thompson ofThompson Studios.30 JUNE 2013 | HCBA LAWYER

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Cases in other states?If you need the resources of a national law firm, with coast-to-coast experience, then considerWilkes & McHugh, P.A. With lawyers presently licensed in 23 states, we may have the financial andtechnical resources you need to successfully represent your clients — even those who are thousandsof miles away.Wilkes & McHugh, P.A. has been handling serious injury, medical malpractice, nursing homeabuse, wrongful death and trucking accident cases for over 25 years — and we’re still going strong!We are pleased to offer referral fees as permitted by the Florida Bar as well as appropriate state barsthroughout the country.Serious Injury.Wrongful Death.Trucking Accidents.Nursing Home Abuse & Neglect.34 JUNE 2013 | HCBA LAWYER

Wilkes & McHugh, P.A.has you covered.Lawyers licensed in 23 states.Coverage of nearly 70% of the U.S. population.Offices in 6 states.800.255.5070www.wilkesmchugh.comOne North Dale Mabry Highway, Suite 800, Tampa, Florida 33609Lexington, KY | Little Rock, AR | Memphis, TN | Philadelphia, PAPhoenix, AZ | Pittsburgh, PA | Tampa, FL | Tucson, AZWith lawyers licensed in 23 states.JUNE 2013| HCBA LAWYER35

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SUPREME COURT TACKLES IP ISSUESIntellectual Property SectionChairs: Woodrow H. Pollack - GrayRobinson, P.A.; and Dineen Pashoukos Wasylik - Dineen Pashoukos Wasylik, P.A.Though the United StatesSupreme Court istaking fewer and fewerdiscretionary reviewcases each year, the number ofintellectual property cases subject tohigh court scrutiny has increased.Perhaps reflecting the increasingimportance of intellectual propertyin our global economy, theSupreme Court in its October2012 term took five intellectualproperty cases. As of this writing,all five cases had been argued, andthree decided.Already, LLC v. Nike, Inc.,133 S. Ct. 721 (2013). In January,the court held that a covenant notto sue a competitor for trademarkor trade dress infringement mootedthe competitor’s declaratoryjudgment action. Nike hadsued Already for trade dressinfringement. Nike later decidedto dismiss the case, but Alreadyrefused to dismiss its counterclaimsfor declaratory judgment. Nike thenexecuted a unilateral covenant notto sue, and the Supreme Court heldthat Nike’s covenant was sufficientto moot any case or controversy.While the case was decided inthe trademark infringementcontext, it has the potential tohave far-reaching effects.Gunn v.Minton,133 S. Ct.1059 (2013).In February,the court consideredwhethera state lawclaim alleginglegal malpracticein thehandling ofa patent casemust bebrought infederal court.Minton, apatent holderwho had losthis infringementaction,sued his attorneys for malpractice instate court. When he lost that claim,too, he argued on appeal that thestate court lacked subject matterjurisdiction over his malpracticeclaims because they arose underthe patent laws. 28 U.S.C. §1338(a).The Court acknowledged the“case within a case” nature of themalpractice claim, but nonethelessheld that there is no exclusivefederal jurisdiction.Kirtsaeng v. John Wiley &Sons, Inc., 133 S. Ct. 1351 (2013).The court next decided whether thefirst sale doctrine under theCopyright Act applied to workslawfully made outside of the UnitedStates and then re-sold within theUnited States. Kirtsaeng purchasedtextbooks abroad, then re-sold themwithin the United States. Thepublishers, citing the importationban in 17 U.S.C. § 602(a)(1), suedfor infringement. The court heldPerhaps reflecting theincreasing importance ofintellectual property inour global economy, theSupreme Court ... took fiveintellectual property cases.that theimportationban did notapply to copieslawfully madeand purchasedabroad, andinstead there-sales wereprotected bythe first saledoctrine, 17U.S.C. § 109(a).Bowmanv. MonsantoCo., No.11–796,(U.S. ArguedFebruary 21,2013). Thenext patentcase concerns the extent to whicha patentee can control downstreamuse of a patented invention.Bowman argued that the patentin Monsanto’s “Round-Up Ready”soybean seeds was “exhausted”once planted and harvested, andthat therefore he should be allowedto replant the resulting seedswithout infringing the patent.Association for MolecularPathology v. Myriad Genetics,No. 12-398 (U.S. Argued April15, 2013). In Myriad, the courtis being asked to answer thedeceptively simple, yet hugelyconsequential question: Are humangenes patentable? The ultimatedecision will have a broad effecton the research industries.Decisions in Bowman and Myriadare expected soon.Author: Dineen Pashoukos Wasylik,Dineen Pashoukos Wasylik, P.A.Get Your Court Access Card from the HCBA. Visit www.hillsbar.com.JUNE 2013| HCBA LAWYER37

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ELEVENTH CIRCUIT DECIDES FLSA RETALIATION ISSUELabor & Employment SectionChairs: Scott T. Silverman - Akerman Senterfitt LLP; and Ronald W. Fraley - The Fraley Law Firm, P.A.Deciding an issue offirst impression, onFebruary 13, 2013,in Moore v. ApplianceDirect, Inc., 708 F.3d 1233 (11thCir. 2013), the Eleventh Circuitheld that courts have the discretionto award liquidated damages inFair Labor Standards Act (“FLSA”)retaliation suits. Unlike suits forminimum wage or overtime wages,where such damages aremandatory, absent a showing ofreasonable good faith by theemployer, plaintiffs in a retaliationcase under the FLSA must showthat the circumstances justify suchan award.In Moore, delivery truck driversbrought an overtime wage lawsuit.During the pendency of thatlitigation, they were terminated.Thereupon, they brought a secondsuit, alleging that their terminationswere in retaliation for theirovertime claims.The truck drivers prevailed attrial on their retaliation actions,but the court declined to awardliquidated damages (which are anequal amount of proven damagesas a measure to punish thedefendant for violation of the law).The drivers appealed this aspect ofthe lower court’s ruling, assertingthat the award of such damages ismandatory inretaliation cases,absent a showingof reasonablegood faith actionby the employer,just as it is inovertime andminimum wageactions.The EleventhCircuit observedthat the plainlanguage of theretaliation statutedirected thatcourts shallimpose suchrelief as maybe appropriateto effectuate thepurposes of thelaw; while, incontrast, theovertime andminimum wage statute stated thatcourts shall impose an additionalamount as liquidated damages.Thus, the imposition of liquidateddamages was clearly meant byCongress to be discretionary.Therefore, the Eleventh Circuitconcluded that the award ofliquidated damages, as well as anyother damages for retaliation, isdiscretionary upon a determinationof whether doing so would beappropriate under the facts ofthe case.At least two cases have appliedMoore. In Stevenson v. SecondChance Jai Alai, LLC, 2013 WL1344500 (M.D. Fla. April 2, 2013),Judge Roy Dalton, Jr., concludedthat an absence of good faith wasa factor in determining whetherto award liquidated damages for[C]ourts have thediscretion to awardliquidated damages inFLSA retaliation suits.retaliation andheld thatdefendant’sintentionalviolation ofthe FLSAjustifiedliquidateddamages. Id.at 4. Similarly,in Leon v. M.I.Quality LawnMaintenance,Inc., 2013 WL773475 (S.D.Fla. February28, 2013),Judge AndreaSimontonconcludedthat liquidateddamages wouldpromote thepurposes ofthe FLSAanti-retaliation provisions andserve to deter employers fromfuture violations, where the juryfound that “but for” protectedactivity, plaintiffs would not havebeen terminated. Id. at *9.The important point foremployers is to establish facts thatwould make an award of damagesinappropriate. Employers must beready to defend any actions takenagainst employees who have madeFLSA complaints. If an employercan show that it had reasonablegrounds for the action, apart fromasserted retaliation for protectedactivity, the employer may be ableto avoid damages. Documentationis, of course, critical.Author: Scott T. Silverman,Akerman Senterfitt LLPASK A COLLEAGUE TO JOIN THE HCBA TODAY. SHARE THE BENEFITS OF MEMBERSHIP.40 JUNE 2013 | HCBA LAWYER

REALIZING THE DREAM: EQUALITY FOR ALLLaw Week CommitteeChairs: Kelly A. Zarzycki, Shumaker, Loop & Kendrick, LLP; and James A. Schmidt - James A. Schmidt, P.A.This year’s Law Weektheme was: “Realizingthe Dream: Equalityfor All.” It was a fittingtheme as we reflected on the150th anniversary of PresidentAbraham Lincoln’s EmancipationProclamation, and the 50 yearsthat have passed since Dr. MartinLuther King, Jr., remarked on ahot August day in 1963, that thepromissory note of America hadbeen returned, “marked,insufficient funds.”Exploring such a weighty themewas a demanding experience.Polarizing topics such as gay rightsand universal health care revealhow adults have differing opinionsabout what the word “equal”means and when it ought to beapplied. But what about thestudents? Couldn’t we also expectdifferent ideas from a high schoolstudent from a predominately blackneighborhood inEast Tampa, amiddle schoolstudent fromone of ourbarrios, or anelementaryschool studentsurrounded bythe microcosmof South Tampa— each withdifferingopportunities,access andmeans?Thisyear’s studentparticipationconfirmedthat diversityin ways thatwould probablysurprise you.The essays andart were coloredwith perspectivesthat were uniquely born from theimagination of this generation.Equally thrilling was the fact thatsome of the students are nowrepeat winners of our awards, andreturn year after year, hungry foranother lesson in the law.If the promissory note that Dr.King spoke of remains unpaid, theThank you to allof the students andvolunteers who made thisLaw Week a memorable,teachable experience.members of ourbar associationshowedthemselves to beproud obligors.They arrivedthis year in largenumbers withopen calendarsto volunteer andencourage ourpublic schoolyouth to wonderfor themselveswhat “thedream” means.But ultimately,the efforts ofthe studentsand attorneyswill be viewedas one effort,undertaken toensure that anation dedicatedto thepropositionthat all men are created equalcan long endure.Thank you to all of thestudents and volunteers whomade this Law Week a memorable,teachable experience.Author: James A. Schmidt,James A. Schmidt, P.A.THANK YOUThank you the proctors of the Florida Bar Examination on February 26-27, 2013,at the Tampa Convention Center:n Mandi Ballardn Patrice Behnstedtn Scott Clinesn Brad deBeaubienn Kristina Fehern P.D. Goldsteinn Edwin Hightowern Amber Hilln Patrick T. Hogann Christopher Kastenn Traci Kostern Jordan Maglichn Tara Mathenan Jennifer Mooneyn Suzanne Mucklown Joseph Murphyn Chris Naumann Colleen O’Brienn Lyndsey Siaran Linsey Simsn James Thorpe, Jr.n Bethanne WalzJUNE 2013| HCBA LAWYER41

2013 Law DayMembership LuncheonHillsborough County Bar Association members, guests,sponsors, and award recipients packed the ballroom at theHilton Tampa Downtown on May 21, 2013, to commemoratethe rule of law and its place in American society.Col. Scott V. De Thomas, commander of the 6th Air Mobility Wing at MacDill Air ForceBase, delivered the keynote address, reminding everyone that “freedom isn’t free.”Other special guests included the recipients of the HCBA law enforcement awards.Chief Judge Manuel Menendez, Jr., presented Deputy Douglas Duvall of the HillsboroughCounty Sheriff’s Office and Detective Tim DeGusipe of the Tampa Police Department withthis year’s awards. Student essay and art contest winners — as well as their families —also attended. Read the essays on pages 45-47.Thank you to our sponsor:Photos by Joseph Brown III/JB3Photography.42 JUNE 2013 | HCBA LAWYER

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Law Week CompetitionStudent Award Winnersn PEER MEDIATOR OF THE YEAR:Johnathan Broxton, Wharton High Schooln PEER MEDIATION ESSAY CONTEST WINNERS:Wildens CaJuste, Steinbrenner High SchoolAmaka Eziakonwa, Benito Middle SchoolBen Sherwin, Colleen Bevis Elementaryn ART CONTEST WINNERS:HIGH SCHOOLFirst Place: Ayanna Sykes, Blake High SchoolSecond Place: Celena Hamon, Blake High SchoolThird Place: Shannon Barnett, Blake High SchoolMIDDLE SCHOOLFirst Place: Sadie Testa-Secca, Martinez Middle SchoolSecond Place: La Danus Knight, Franklin Boys Prep AcademyELEMENTARY SCHOOLFirst Place: Paulina Rochelle, McKitrick Elementary SchoolSecond Place: Syann Jackson, Ippolito Elementary SchoolThird Place: Nicole Guerra, Ippolito Elementary SchoolPeer Mediator Essay Contest winners, from left:Johnathan Broxton, peer mediator of the year; Wildens CaJuste,high school winner; Amaka Eziakonwa, middle school winner;and Ben Sherwin, elementary school winner.Art Contest winners, from left: Paulina Rochelle,elementary school; Sadie Testa-Secca, middle school winner;Celena Hamon, high school winner; Ayanna Sykes, high school winner;and Shannon Barnett, high school winner.44 JUNE 2013 | HCBA LAWYER

PEER MEDIATOR OF THE YEARJohnathan Broxton, 12th grade, Wharton High SchoolEquality for All; Realizing the DreamWhat is equality? Equality is the state or quality ofbeing equal. I admit I was not one who looked atpeople as equal. I made people feel inferior, worthless,and below my level. I was so arrogant that I didn’trealize that we all are equal and should all be treatedwith same respect.You’ve got me I’ve been caught read handed! As ayoung Adolescent I felt I couldn’t be touched I was in myprime, but a few trips to the JAC center and the facialexpressions of my parents changed my mind expeditiously.As I matured I wanted to try new things, because Iwas so antisocial it was hard, I began doing minor thingsbecause I knew it was like learning how to swim I wasn’tabout to just dive in without testing the water. Everythingwas going great I became more sociable with my peersand once I opened up I could tell I fit right andeverybody treated me with the same respect I did thesame as well. Now I am a senior at Wharton HighSchool also I am a mediator for an outstanding motherand teacher Mrs. Martha Scholl. I can say she has mademe a better person and has opened a lot of doors that Iclosed a long time ago and I would like to thank her forthat. When I started mediating I saw a lot of youngerteens making the same mistakes I was making and Iassured myself that any students entering Mrs. Scholl’soffice would leave there being friends or being able tolive at Wharton without the drama.Majority of my mediations I can say have beenresolved and both students involved felt that I wasabsolutely correct and I have changed some students ina positive way. Most of my mediations consisted ofbullying and name calling which shouldn’t be toleratedin a society where we are all seen to be a whole or ratherequal. Seeing that I am an elder at school studentssometimes come to me with their problems because theyknow I’m a straight forward guy and I can relate to themin a way. Equality is something I never seen as possiblebecause nothing or nobody is perfect, I learned that ourfounding fathers built this land on the principles that weas American’s are an independent country, but AbeLincoln also stated that we are the people. Also Rev. Dr.Martin Luther King Jr. stated that we should be judgedby the content of our character meaning if your wrongadmit it and try to fix it because at the end of the daywe are equal, not only on earth, but also in Gods eye.Inclosing I have explained in the paragraphs abovethat I have Realized the Dream that we are all equal andshould be treat as equal.HIGH SCHOOL PEER MEDIATORESSAY CONTEST WINNERWildens CaJuste, 11th grade, Steinbrenner High SchoolRealizing the Dream; Equality For AllAs a young child, I always seemed to be the voice ofreason when everyone else was on the verge of acting upwith adrenaline pumping not thinking straight I wasalways the voice of reason the one to say “Don’t do that”or “walk away”. My journey as a peer mediator has notbeen an easy one it has been filled with a lot of ups anddowns but as much as I have taught and help peers,friends and other young people I have learned a lot fromthem as well. Ever since we were young children ourdreams were to all walk across the stage together andgraduate. We knew that with hard work we couldaccomplish our goals and all go further in our education.Working as a peer mediator I have learned that youcannot always tell everything someone is going throughby how they act in school. Once there was a quite kid inmy class named Paul I will never forget him. He wouldcome to class every day and never say anything he wouldsmile do his work and get made fun of by other kids allthe time. I knew that just because Paul wore the sameclothes all the time and never spoke to anyone it didn’tmean that he was a bad person. We had just been comingfrom lunch one day and the kids were picking on Paulnonstop that day he ended up Running out of theclassroom eyes full of tears. This was the last straw I stoodup and asked them why do they feel so insecure that theyhad to make fun of Paul everyone was shocked that Istood up told them to but enough was enough. I wakedoutside and told Paul that he should start sitting with meI explained that kids like those will always live on the painof other people and that he should not let anything theytell him get to his head. The teacher let us stay outsideand talk for the rest of the day. Turns out Paul truly hadit rough his step farther would come home and beat hismother right in front of him every day. His step fartherwas a bad drunk and Paul and his mother was trying toget away from him. Here I am 14 years old mad becauseI couldn’t go to a party Friday night or because my momwouldn’t give me any money to waist on somethingpointless. Here’s someone I was in class with everydaywho kept a smile on his face living with things childrenshould never have to go through. Paul and I became goodfriends and 4 years later to this day he still calls me andthanks me for standing up for him that day.I realized at a young age that I had to get good gradesto be successful in life. A powerful saying I heard as achild that has always stuck with me is “If you want to beContinued on page 46JUNE 2013| HCBA LAWYER45

Continued from page 45successful as much as you want to breathe then you willbe”. We all may not have been born into the samesituation but education has always been able to level theplaying field. Once you have your degree people can nolonger gave the audacity to tell you what you could orcouldn’t be realizing the dream and aiming for the starswill always get you far. A great man by the name ofMartin Luther King once said that he had a dream avisionary in his own time shot dead in his prime, think ifMartin Luther King never dared to dream he would ofnever have paved the way for you and me.Helping these young men have not only taught me tohave tremendous amount of patience’s but showed methat Martin Luther king’s dream was meet and hard workand determination can help any goal get set. Its 2013 andmy fellow brothers and I will be graduating from highschool next year then it’s off to college with new goalswith everything starting over again.MIDDLE SCHOOL PEER MEDIATORESSAY CONTEST WINNERAmaka Eziakonwa, 8th grade, Benito Middle SchoolRealizing the Dream; Equality For AllPeer mediation, I think, is a wonderful elective and isnecessary in each and every school.I joined Peer Mediation because I thought it would bea great way to help out my fellow peers with whateverconflict they have. I detected how much conflict there isat Benito Middle School and how frequent the fights arehere and I thought Peer Mediation would be able tolessen the amount of conflict there is.Peer Mediation is important because it gives people away to resolve their problems without physically fightingand suffering the consequence. Instead of getting, maybe,ten days of out-of-school suspension, people could talkout their problems in a more peaceful matter, get theirdisagreement resolved, and still not have to face theconsequence of in-school-suspension or out-of-schoolsuspension. Peer Mediation shows people there is adifferent way to solve your conflicts than fighting. It helpsbuild community between the students in the classroomand throughout the whole school. Peer Mediation couldalso help prevent escalating conflicts. There could havebeen a misunderstanding between something or a falserumor spreading about somebody. When the studentscome to Peer Mediation they could find out that it was amistake without being physical. That helps get rid of anunnecessary fight that could have happened and also getrid of a suspension that would have gone on theirpermanent record.In addition, Peer Mediation is important because itgives people a chance to come up with their ownsolutions. That means they don’t need to depend on otherpeople to solve their conflict for them. They can come upwith a solution they are comfortable with and they do notfeel like the solution is being forced on them. When theylearn how to solve a conflict on their own, they canspread their knowledge to other people and help themout with their conflicts.Peer Mediation has made me become a better personoverall. I have learned the challenges some of myschoolmates are facing and realized if they can overcomeit, so can I. Peer Mediation has also taught me there isalways a way to find a solution to any problem on myown. It has made me look at my conflicts from a differentperspective and handle them in a different way.All in all, I’m glad I joined Peer Mediation and I feelit is a great elective to put in all schools. I’m glad Ireceived the opportunity to have this experience.Continued on page 47Peer Mediator Essay Contest winnerWildens CaJuste, high schoolSadie-Testa Secca, first-place middle school winner,was also a 2012 winner.46 JUNE 2013 | HCBA LAWYER

Continued from page 46ELEMENTARY SCHOOL PEER MEDIATORESSAY CONTEST WINNERBen Sherwin, 5th grade, Colleen Bevis ElementaryEquality For AllNo matter what gender, race, or ethnicity everyone shouldhave equal rights. That’s what mediation is all about. If anyonein our school has a problem with another person we can helpin a peaceful way, talking it out and finding a resolution to stopthis from happening again. In my perspective, a studentmediator should be calm and respectful of their “patients” bylistening very carefully, paraphrasing, and just asking thequestions and let the kids do the talking and resolving. After allit’s them who have to solve their problems if it happens againanywhere out of school so let them make an agreement rightthere and then. So far, I’ve only had one mediation in whichone girl made a list of who they liked and hated or disliked.One boy spotted the list and saw his name under the hatecolumn. They then resolved their issue by throwing away thelist and promising not to write another one ever again. Ofcourse this information is classified so mediators must not sharethem with other students. Also, bullying is a huge issue in theU.S.A. This is a hard issue to fix because many children justwalk by when someone is being bullied and is in a very toughsituation to out of physically or even emotionally. Mediatorsare not the only people who can stop bullying everyone can bejust speaking up and telling an adult. Just because someonethinks you look weird or a bully thinks you don’t wear goodclothes doesn’t mean they should pick on you. Everyone canmake a change about bullying. This way everyone can solvetheir own problems if needed and the world can be a betterplace. Hopefully, soon there will be no more bullies becausekids made a change in their attitude and behavior. When Imediate children and help them I have a warm, great feelingin my heart. It feels wonderful to know that you’ve made acontribution to the world, that you’ve helped someone solvetheir problem, and to know that your giving equality toeveryone and stopping people from giving unequal rights toeach other. We mediators don’t just mediate kids we also recycleand help the community. We recycle so the world is clean andutilities can be reused so the world doesn’t waste. This alsomakes citizens feel nice about looking and feeling theirsurroundings. This also gives me a positive feeling that shows Iam great and making a change. We also help the communitybe supporting local events and especially the Moffitt CancerCenter. Our school hosts many drives — coin and food – forcancer survivors and for citizens of Tampa who are poor andpossibly homeless. Mediators should ALWAYS give back to thecommunity. This is another very important quality mediatorsneed. I know everyone can do this and get that amazing feelinginside and together we all can change the world.Art Contest winner Paulina Rochelle, elementary schoolArt Contest winner Celena Hamon, high schoolPeer Mediator Essay Contest winner Ben Sherwin,elementary schoolPeer Mediator Essay Contest winnerAmaka Eziakonwa, middle schoolJUNE 2013| HCBA LAWYER47

CAST OF CHARACTERS: PROFESSIONALS IN FAMILY LAW CASESMarital & Family Law SectionChair: Alexander Caballero - Mason Black & Caballero, P.A.Afamily law matter maypresent a variety ofissues, includinganalysis of financialtransactions, business valuations,real property issues, criminalactivity, domestic violence, aswell as health and mental healthissues. Accordingly, the familylaw attorney must be ready todraw upon a wide array ofprofessionals to assist in theseareas in order to properlyrepresent the client’s interests.Protecting the interests ofthe children involved in a familylaw case should be the foremostconcern. Where a parenting planis at issue, the court is permittedto appoint a guardian ad litemto act as the next friend of thechildren, investigator, or evaluator.See Fla. Stat. § 61.401. Theguardian ad litem is not an attorneyor advocate for the children. Id.The appointment of a guardianad litem is mandatory where thereis a verified, well-founded allegationof child abuse. Id.Where parents are experiencingmore routine conflict, the courtmay appoint a parent coordinator,who is trained in both mediationand conflict resolution strategies.See Fla. Stat. § 61.125. The parentcoordinator provides parents analternativedisputeresolutionprocess. Id.A parentcoordinatorcannot beappointedwithout theconsent ofboth partieswhen there isa history ofdomesticviolence. Id.When taskedwithestablishing orpotentially modifying a parentingplan, the court is also permittedto appoint a psychologist, clinicalsocial worker, or therapist toconduct a social investigation.See Fla. Stat. § 61.20. Healthprofessionals may also be appointedto examine a child or parent,including paternity testing, mentalhealth examination, physicalexamination, or any other typeof examination related to a matterin controversy. See Fla. Fam. L.R.P.12.360 and 12.363.Independent professionals arealso involved in the search for truthregarding financial issues. A party’sclaim for alimony may justify acompulsory examination if theparty seeking alimony places hisor her mental or physical healthat issue. See Fla. Stat. § 61.08.In alimony cases, the court mayalso order a vocational evaluationto assess a party’s earning capacity.See Fla. Fam. L.R.P. 12.360.A forensic accountant mayassist the court in determining theparties’ respective need and abilityThe family law attorney mustbe ready to draw upon awide array of professionals.to pay alimony.The parties maystipulate to theappointment ofa neutral jointfinancial expert,the parties mayhave their ownindependentfinancialexperts, and,in some cases,the partiesmay have both.Where thecourt is taskedwith equitablydividing aparty’s ownership of a business, theforensic account or other valuationexpert may identify the portionof the business that is properlycharacterized as marital and providea valuation for the business. Expertsmay also testify on proper valuationof intellectual property, real estate,jewelry, antiques, or other property.Other attorneys may also playa critical role. An experiencedpractitioner knows when to consultco-counsel on corporate, real estate,criminal, and other matters relatedto the family law case. And askilled mediatorcan help givethe perspectivenecessary toresolve a highlycontested case.Authors:Richard J. Mockler,Richard J. Mockler,P.A.; and ChristineL. Derr, LawOffice of ChristineL. Derr, P.A.Looking for a new job? Check out the Career Center on the HCBA website at www.hillsbar.com.48 JUNE 2013 | HCBA LAWYER

Fulfill Your Professional ResponsibilityDonate to Bay Area Legal ServicesDid you know that by making a contribution to Bay Area Legal Services you canfulfill your pro bono public service responsibility? An annual donation of $350 ormore to Bay Area can satisfy your professional responsibility (Rule 4-6.1) and make a valuable contribution to ourcommunity at the same time. Law firms that contribute the equivalent of $350 for each attorney can join the manyattorneys and firms who have supported Bay Area by becoming a Sustaining Law Firm. Fulfill your professionalresponsibility today – make a donation to Bay Area and ensure access to justice for the poor in our community.THANK YOU TO OUR 2013 SUSTAINING LAW FIRMSFOR THEIR LOYALTY AND SUPPORT:• Richard S. Agster, P.A.• Alley, Clark & Greiwe• Banker Lopez Gassler, P.A.• Barnett, Bolt, Kirkwood, Long& McBride, P.A.• Ronald K. Cacciatore, P.A.• Norman S. Cannella, Jr., P.A.• Law Offices of J. Kevin Carey, P.A.• Carey, O’Malley, Whitaker & Mueller, P.A.• The Law Office of Julia Best Chase, P.A.• Clark & Martino, P.A.• Preston O. Cockey, Jr., P.A.• Thomas E. Cone, Jr., P.A.• The Law Office of Christine Derr• Greg W. Dworzanowski, P.A.• Epperson & Rich, P.A.• Forcon International Corp.• Buddy D. Ford, P.A.• Michael Foster, P.A.• Fowler White Boggs, P.A.• George & Titus, P.A.• Bruce S. Goldstein, P.A.• Melvia B. Green, P.A.• Gunn Appellate Practice, P.A.• Gunn Law Group, P.A.• The Law Firm of Gunster• William E. Hahn, P.A.• Linda C. Hanna, P.A.• Harmon, Woods, Parker & Abrunzo, P.A.• Harris and Hunt, P.A.• Hill Ward Henderson• Himes & Hearn, P.A.• Ron A. Hobgood, Attorney at Law• Holland & Lamoureux, P.A.• The Law Offices of George Hunter, P.A.• A. Woodson Isom, Jr., P.A.• Jennis & Bowen, P.L.• Joyce & Reyes Law Firm• Ann Loughridge Kerr, Attorney at Law• Kynes, Markman & Felman, P.A.• Lauro Law Firm• Leon & Berg, P.A.• Mark A. Linsky, P.A.• Madison Street Properties• Marlowe McNabb, P.A.• Mark E. Miller, P.A.• The Law & Mediation Officesof Robert J. Nader• New Tampa Mediation Services, Inc.• Catherine Novack• Rissman, Barrett, Hurt, Donahue& McLain, P.A.• Rocke, McLean & Sbar, P.A.• Rywant, Alvarez, Jones, Russo& Guyton, P.A.• Mark Shelton, P.A.• Cary R. Singletary, P.A.• Stichter, Riedel, Blain & Prosser, P.A.• John E. Sullivan, P.A.• TECO Energy, Inc.• Jack L. Townsend, Sr., P.A.• Law Offices of Deborah Rose Tracy, P.A.• Law Office of Amanda M. Uliano, P.A.• Veredus Corp.• Wenzel Fenton Cabassa, P.A.• Deborah Larned Werner, P.A.• Wiand Guerra King P.L.• Barbara L. Wilhite, P.A.• Richard Benjamin Wilkes, P.A.• Wilkes & McHugh, P.A.• Zuckerman Spaeder LLPTo make a donation or become a 2013 Sustaining Law Firm,contact: Development, Bay Area Legal Services(813) 232-1222 x 131 or e-mail: plubin@bals.orgJUNE 2013| HCBA LAWYER49

UTILITY OF STATE APPELLATE COURT MEDIATIONMediation & Arbitration SectionChairs: Charles Wachter - Holland & Knight LLP; and Stephen Tabano - Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullis, Professional AssociationIn the appellate community,there is a sense that appealsare beyond a mediatedresolution: The appellee“won” — he will not now relent.Mediation did not work below.The parties knew the costs and risksof an appeal, and forged ahead.Mediation would waste time andmoney. The First and FourthDistrict Courts of Appeal (“DCA”)mediation programs died onthe vine 1 , proving mediation isunavailing. Yet, as discussed below,the Fifth DCA has had a successfulprogram since 2001, and there arevalid reasons to consider the potentialbenefits of appellate mediation.The programs in the First andFourth Districts ended for reasonsunrelated to success. They werestate-run with state-employedmediators, and ended followingstate budget cuts. 2 On the otherhand, in the Fifth DCA partieschoose and pay an outsidemediator. 3 Without bureaucraticand budgetary hindrances, theprogram has developed successfullysince 2001. “A success rate of thirtyto fifty percent defeats the theorythat appellate mediation doesn’twork,” says The Honorable WilliamD. Palmer, a Fifth DCA judge since2000, and chair of the FloridaSupreme Court Committee onADR Rules & Policies since 2009. 4Regardless ofvenue 5 , there arereasons to considerappellate mediation:• It offers achance toeducate partiesaboutjurisdictionallimitations,standardsof review,merits andunpredictability,andramificationsof variousoutcomes.• It offersflexibilityunavailable inappellate court,where review islimited to issueson appeal. Forexample, acourt reviewinga custody schedule may onlyapprove it or refer it back tothe trial court. However, medi -ation offers an opportunity todevise an alternative schedule.• It offers time-told mediationbenefits — self-determination,risk elimination, education,cost reduction, confidentiality,and finality.• It gives an appellant anopportunity to conclude anappeal short of voluntarydismissal if an appeal hasbecome unattractive.Mediating an appeal may giveparties benefits ranging from theopportunity to learn about anopponent’s positions, to globalresolution. In many situations, thebenefits make it worth taking anMediating an appealmay give partiesbenefits ranging fromthe opportunityto learn about anopponent’s position,to global resolutionof the entire case.open-mindedapproach tomediation.1The 4th DCAhad a mediationprogram from1989-91 and1998-2001, andthe 1st DCA had amediation programfrom 1996-2001.FLA. DISPUTERESOLUTIONCENTER, FLORIDAMEDIATION &ARBITRAITONPROGRAMS: ACOMPENDIUM,21st ed., pp. 6-12(2011) (available atwww.flcourts.org/gen_public/adr/bin/09-10FYDRCCompendium.pdf)2TelephoneInterview with theHon. William D. Palmer, Judge, 5thDistrict Court of Appeal (Apr. 12,2013); FRESOLUTION CENTER, FLORIDAMEDIATION & ARBITRAITON PROGRAMS:A COMPENDIUM, pp. 6-12.3In re Implementing AppellateMediation Program, Fla. 5th DCA,Admin. Order No. AO5DCA06-03(Aug. 14, 2006).4Interview with Judge Palmer.5Absence of a formal program doesnot prohibit mediation. An appellatecourt may refer an appeal to mediationat any time, tollingappellate deadlines.Fla. R. App. P.1.700(d).Author:Hilary High,Hilary High, P.A.THE MEDIATION & ARBITRATION SECTION WELCOMES YOU. CALL 813-221-7777.50 JUNE 2013 | HCBA LAWYER

Hillsborough County Bar Association 100 ClubLaw firms with 100% membership in the HCBA12th Judicial Circuit13th Judicial Circuit Court13th Judicial Circuit Court Plant City2nd District Court of Appeal LakelandAddison & Howard, P.A.Allen Dell, P.A.Alley Clark GreiweAlmerico & MooneyAlvarez GarciaAnsa Assuncao, LLPAnthony & Partners, LLCAnthony J. LaSpada P.A.Austin, Roe & Patsko, P.A.Baccarella & Baccarella, P.A.Baird Law GroupBajo | Cuva | Cohen | TurkelBanker Lopez Gassler P.A.Barbas, Nunez, Sanders, Butler & Hovsepian, P.A.Barker, Rodems & Cook, P.A.Barnett, Bolt, Kirkwood, Long and McBride, P.A.Bavol Judge, P.A.Bay Area Legal Services Plant CityBay Area Legal Services WimaumaBeltz and RuthBivins & Hemenway, P.A.Boire & DePippo, P.L.Bradford & BradfordBrannock & Humphries, P.A.Brennan, Holden & Kavouklis, P.A. Attorneys at LawBroad and CasselBuell & Elligett, P.A.Burr & Forman, LLP, formerly Williams SchifinoBusciglio & Sheridan Law Group PABush RossButler Pappas Weihmuller Katz Craig, LLPCaglianone, Miller & Anthony, P.A.Carey, O’Malley, Whitaker & Mueller, P.A.Carlton Fields, P.A.Carman & Corn, P.A.Caveda Law Firm, P.A.Cedola and Vincent P.L.Cheeseman & Phillips, P.A.Christopher N. Ligori, P.A.City of TampaClark & Martino, P.A.Clerk of the Circuit Court’s OfficeCody Fowler Davis Trial Attorneys, P.ACole, Scott & Kissane, P.A.Cordell & Cordell, P.C.County Attorney’s OfficeCristal Law GroupCruser Mitchell Nicholas & Bell, LLPCruz-Garcia Law, P.A.Danahy & Murray, P.A.Davidson McWhirter, P.A.de la Parte & Gilbert, P.A.Dennen, Ragano, PPLCDennis LeVine & Associates, P.A.District Court of AppealDonica Law Firm, P.A.Dorman & Gutman, P.L.Escobar, Ramirez and AssociatesFernandez & Hernandez, LLCFiol & Gomez, P.A.Fisher and FrommerFisher Law GroupFlorida Default Law Group, P.L.Fowler White Boggs P.A.Fuentes & Kreischer, P.A.Fulgencio LawFuller Holsonback & Malloy, P.A.Gallagher Keenan, P.A.Gardner Brewer Martinez Monfort, P.A.Garrison, Yount, Forte, Mulcahy & Lehner, LLCGatlin & Birch, P.A.Gaylord Merlin Ludovici & DiazGenders-Alvarez-Diecidue, P.A.George & Titus, P.A.Gibbons, Tucker, Miller, Whatley, & Stein, P.A.Gibbs and Parnell, P.A.Givens Law GroupGlenn Rasmussen, P.A.GrayRobinson, P.A.Griffin & Associates, P.A.Guemmer & RittGunn Law GroupHancock & Hancock, P.A.Harmon, Woods, Parker, Hendricks & Abrunzo, P.A.Harris and Hunt, P.A.Hillsborough County Sheriff’s OfficeHill Ward HendersonHimes & Hearn, P.A.Hines Norman Hines, P.L.Holcomb & Mayts, P.L.Hunter Law GroupJames, Hoyer, Newcomer & Smiljanich, P.A.Jayne M. Lambert P.A.Jayson, Farthing, Skafidas & Wright, P.A.Jeanne T. Tate, P.A.Joe M. Gonzalez, P.A.John H. Rains III, P.A.Johnson, Pope, Bokor, Ruppel & Burns, LLPJorgensen & Ozyjowski, P.A.Joryn Jenkins & AssociatesJoyce & Reyes Law FirmJung & Sisco, P.A.Kadyk Delesie & Espat P.A. Cap TrustKeys & Coakley, P.L.Knopik Deskins Law GroupKubicki DraperKunkel, Miller & Hament, P.A.Kynes, Markman & Felman, P.A.Lauro Law FirmLaw Office of Donald P. Decort, P.A.Law Office of Jason D. MontesLaw Office of Kevin M. GilhoolLaw Office of Patricia Gomez, P.A.Law Office of Robert M. GellerLaw Offices of Butler & Boyd, P.A.Law Offices of Darrin T. Mish, P.A.Law Offices of Emma Hemness, P.A.Law Offices of Jacob I. ReiberLaw Offices of Matthew J. Jowanna, P.A.Leon & Berg, P.A.Leslie Reicin Stein P.L.Levine, Hirsch, Segall, Mackenzie & Friedsam, P.A.Ligori & Cappy, P.A.Lopez, Kelly & Bible, P.A.Luks, Santaniello, Perez, Petrillo & GoldLynette Silon-Laguna, P.A.Mac A. Greco, Jr., P.A.Mandelbaum,Trichler Law Center, P.A.Manson Law Group, P.A.Mark Bentley, P.A.Marlowe McNabb, P.A.Martinez, Odom Law GroupMary Beth Corn, P.A.Mason Black & Caballero P.A.Matassini Law Firm, PAMcCumber, Daniels, Buntz, Hartig & Puig, P.A.Mechanik Nuccio Hearne & Wester, P.A.Melkus, Fleming & Gutierrez, P.L.Michael P. Maddux, P.A.Mike Murburg, P.A.Mills Paskert DiversMorgenstern & Herd, P.A.Older, Lundy & Weisman, Attorneys at LawPhillip A. Baumann, P.A.Pitisci, Dowell, Markowitz & MurphyReliaQuest Legal ServicesResnick & Serrano, P.A.Richard W. Driscoll, P.A.Rieth & Ritchie, P.A.Robert E. Morris, P.A.Rumberger, Kirk & Caldwell, P.A.Saady & Saxe, P.A.Sammis Law Firm, P.A.Scarritt Law Group, P.A.Schiff Law GroupSchropp Law FirmSessions Fishman Nathan & Israel, LLPSeth R. Nelson, P.A.Shook, Hardy & Bacon, LLPSisco LawSparkman & Sparkman, P.A.Spector Gadon & RosenStanton Cronin Law Group, PLStetson University College of LawStichter, Riedel, Blain & Prosser, P.A.Stone & Walder, P.L.Straley & RobinSykes Enterprises, Inc.Tampa Law Advocates, P.A.Terrana Perez & Salgado, P.A.The Bowes Law GroupThe Criminal Defense Group, P.A.The Davis Law Group, P.A.The Diecidue Law Firm, P.A.The Fernandez FirmThe Foster Law Group, P.A.The Law Firm of Beverly J. White, P.A.The Plante Law Group, PLCThe Thorpe Law Firm, P.A.The Yerrid Law FirmThomas & LoCiceroThompson & BrooksThompson, Sizemore, Gonzalez & Hearing, P.A.Thorn Whittington, LLPThorn | Lawrence, P.L.Timothy G. Anderson, P.ATison Law GroupTrentalange & Kelley, P.A.Trombley & Hanes, P.A.U.S. District CourtUnited States Bankruptcy CourtWagner, Vaughan & McLaughlinWalters Levine Klingensmith & Thomison, P.A.Walton Lantaff Schroeder & Carson LLPWeekley | Schulte | Valdes, L.L.C.Wenzel, Fenton, Cabassa, P.A.Whitney Bardi Mediation Group, Inc.Wilson Law Group, P.A.FOR YOUR FIRM TO BE LISTED HERE, CONTACT WENDY WHITT, WENDY@HILLSBAR.COMJUNE 2013| HCBA LAWYER51

WHEN AND HOW SHOULD A LAWYER WITHDRAW AS COUNSEL?Professionalism & Ethics CommitteeChairs: Julie Sneed - Akerman Senterfitt LLP; Joan Boles - Bay Area Legal Services, Inc.Atypical motion towithdraw as counselcites irreconcilabledifferences as thebasis for withdrawal. Thoughirreconcilable differences may bea justification for withdrawal, it isonly one of several permissiblegrounds. Horan v. O’Connor, 832So. 2d 193 (Fla. 4th DCA 2002).Florida Rules of ProfessionalConduct 4-1.16(b) sets forth fivepermissible grounds forwithdrawing from representation:“(1) withdrawal can beaccomplished without materialadverse effect on the interestsof the client; (2) the client insistson taking action that the lawyerconsiders repugnant, imprudent,or with which the lawyer has afundamental disagreement; (3) theclient fails substantially to fulfill anobligation to the lawyer regardingthe lawyer’s services and has beengiven reasonable warning that thelawyer will withdraw unless theobligation is fulfilled; (4) therepresentation will result in anunreasonable financial burden onthe lawyer or has been renderedunreasonably difficult by the client;or (5) other good cause forwithdrawal exists.”In addition to the permissiblegrounds for withdrawal, there areseveral instances in which counselmust withdraw: “(1) therepresentation will result in aviolation ofthe Rules ofProfessionalConduct or law;(2) the lawyer’sphysical ormental conditionmaterially impairsthe lawyer’s abilityto represent theclient; (3) thelawyer isdischarged; (4) theclient persists ina course of actioninvolving thelawyer’s servicesthat the lawyerreasonably believesis criminal orfraudulent, unlessthe client agrees todisclose and rectifythe crime or fraud;or (5) the clienthas used thelawyer’s services toperpetrate a crimeor fraud, unless theclient agrees to disclose and rectifythe crime or fraud.” FRPC Rule4-1.16(a).Although the court needssufficient information to determinewhether counsel has permissiblegrounds for withdrawal, thewithdrawing attorney must besensitive to the duty to maintainclient confidences as required byFRPC Rule 4-1.6. Generally, thecourt should not withhold approvalunless doing so “would interferewith the efficient and properfunctioning of the court.” Fisherv. State, 248 So. 2d 479, 486(Fla. 1979) (noting examples suchas attempting to withdraw onthe eve of trial or withdrawingpleadings that subject a client todefault judgment).Lawyers must beconscientious notto tarnish the integrityof their clients orotherwise breach theclient’s sacred trust.In caseswhere theclient disputeswithdrawal,further detailsregardingthe basis forwithdrawalmay be needed.However, thereis a heightenedrisk that thelawyer-clientrelationship maydevolve into “anall-out attack byeach party on thecredibility of theother.” Bowin v.Molyneaux, ___So. 3d ___, 37Fla. L. WeeklyD2641a, CaseNo. 5D12-2589(Nov. 9, 2012).Lawyers must beconscientious notto tarnish theintegrity of theirclients or otherwise breach theclient’s sacred trust. Florida Bar v.Knowles, 99 So. 3d 918 (Fla. July 12,2012) (suspending lawyer for filingdisparaging motions to withdraw).In light of cases like Knowles, it isnot surprising that most motions towithdraw containthreadbareallegations of“irreconcilabledifferences” as thesole explanationfor withdrawal.Authors: Hugh D.Higgins, Rumberger,Kirk & Caldwell;and Michael L.Forte, Rumberger,Kirk & Caldwell52 JUNE 2013 | HCBA LAWYER

Hold your next meeting at theChester H. Ferguson Law CenterThe Chester H. Ferguson Law Center is an ideal locationwith a variety of rooms to meet your needs.Reserve for a day or for a few weeks.Convenient to downtown Tampa, theFerguson Law Center has many amenities:• Six conference rooms of varying sizes• Complimentary AV equipment and Wi-Fi• Free, street-level parkingWagner Lounge“Wonderful facility! Rave reviews when I survey myparticipants about the location. Plenty of free parking,beautiful spacious rooms with all amenities…”– Janelle Walkley, The Settlement Center,CME/CLE Training ProviderGillen Mediation RoomChester H. FergusonLaw Center1610 N. Tampa Street, Tampa, FL 33602Smith Board RoomTrenam Kemker Conf. RoomYerrid Conference CenterStiles Conference RoomReserve your space today.Call (813) 221-7777 or email events@hillsbar.com.JUNE 2013| HCBA LAWYER53

CITIES CANNOT CIRCUMVENT “FIRST IN TIME, FIRST IN RIGHT”Real Property Probate & Trust SectionChairs: Eric Page, Shutts & Bowen, LLP; and Katie Everlove-Stone, Everlove Legal, PLLCPalm Bayargued beforethe FifthDistrict Courtof Appeal(“DCA”) thatit had theauthority tocodify itssuperprioritystatus pursuantto the homerule powersgranted bythe FloridaConstitution.Whileacknowledgingthat theConstitutionprovides municipalities with broadpowers, the DCA clarified thatordinances must yield to statestatutes. The DCA explained thatthe Ordinance conflicted withFlorida Statute § 695.11, whichcodified the “first in time, first inright” rule. 3In a 5-2 decision, the FloridaSupreme Court affirmed the DCA’sruling. 4 Justice Charles T. Canady,writing for the majority, explainedthat the Florida Constitutionprovides that municipalities mayexercise home rule powers “exceptas otherwise provided by law.” 5This preemptive clause “establishesthe constitutional superiority of theLegislature’s power over municipalpower.” 6 The majority rejectedPalm Bay’s argument that enactmentby the Legislature of certainexceptions to “first in time, first inright” provided justification formunicipalitiesto act similarly.The courtreasoned thatthe prohibitionagainst localgovernmentscarving outexceptions tostate laws is afundamentalprinciple ofpreemption. 7Similarlysituated bankinginstitutions andtitle associationssupported Wells. 8Conversely,numerousFlorida municipalities and theFlorida League of Cities supportedPalm Bay. 9 Though municipalitieswill doubtlessly bemoan the court’snarrow interpretation of home rulepowers and its negative effect onrevenue collection, City of Palm Baygreatly diminishes the risks lendershave faced since the introductionof superpriority.The broadest effect of City ofPalm Bay may result from the court’sconfirmation that state preemptionof home rule powers over a givensubject need not be explicit so longas it is clear. 10 While Justice JamesE.C. Perry, in dissent, argued that ahodgepodge of statutes with numerousexceptions indicated an absenceof a statewide scheme to regulatepriority, 11 Justice Canady reasonedthat the hodgepodge approach is theThe Florida Supreme[M]unicipalities mayCourt in City of PalmBay v. Wells Fargo Bank 1exercise home rule powersconfirmed that Florida“except as otherwisemunicipalities may not establishsuperpriority status for codeprovided by law.”enforcement liens in order totrump earlier recorded mortgages.In 1997, Palm Bay passedOrdinance 97-07 (“Ordinance”),which provided that Palm Bay’scode enforcement liens are equalto other government liens and“superior in dignity to all otherliens, titles, and claims.” In 2007,Wells Fargo sued to foreclose itsmortgage recorded in 2004. WellsFargo named Palm Bay as adefendant based upon two PalmBay code enforcement liensrecorded after the Wells mortgage.Citing the Ordinance, Palm Bayargued its liens were superior to themortgage despite the mortgage’searlier recordation. The trial courtrejected Palm Bay’s assertion,reasoning that the Legislature’srefusal to grant code enforcementliens priority over a prior recordedmortgage indicated the Legislature’sintent to apply the common lawprinciple of “first in time, first inright” to such liens. 2 Continued on page 55Get involved with the HCBA.Join a section or committee. Call (813) 221-7777.54 JUNE 2013 | HCBA LAWYER

CITIES CANNOTCIRCUMVENT “FIRSTIN TIME, FIRST IN RIGHT”Continued from page 54scheme. 12 As such, any exceptionto “first in time, first in right” mustfind its genesis in the Legislature.1City of Palm Bay v. Wells FargoBank, N.A., 38 Fla. L. Weekly S322a(Fla. May 16, 2013).2City of Palm Bay v. Wells FargoBank, N.A., 57 So. 3d 226, 226-227(Fla. 5th DCA 2011).3Id. at 227.4City of Palm Bay, 38 Fla. L.Weekly S322a.5Id..6Id.7Id.8See e.g., Brief for Florida BankersAssociation as Amicus CuriaeSupporting Respondent, City of PalmBay v. Wells Fargo Bank, N.A., 38 Fla.L. Weekly S322a (Fla. May 16, 2013).9See e.g., Brief for City ofCasselberry, et al. as Amici CuriaeSupporting Petitioner, City of PalmBay v. Wells Fargo Bank, N.A., 38 Fla.L. Weekly S322a (Fla. May 16, 2013);Brief for Florida League of Cities asAmicus Curiae Supporting Petitioner,City of Palm Bay v. Wells Fargo Bank,N.A., Fla. L. Weekly S322a (Fla. May16, 2013).10City of Palm Bay, 38 Fla. L.Weekly S322a.11City of Palm Bay, 38 Fla. L.Weekly S322a(Perry, J.,dissenting).12City ofPalm Bay, 38 Fla.L. Weekly S322a.Authors:William J.Podolsky, III,Phelps DunbarLLP; and DerekLarsen-Chaney,Phelps Dunbar LLP“Before theLaw WasEqual”The YLD and DiversityCommittee held a premiere for“Before the Law Was Equal,”a documentary chronicling thedesegregation of the local legalcommunity, on April 10, 2013.The debut, held at the TampaBay History Center, culminatedmore than a year of interviewsand research.The hour-long film includesinterviews with Judge DonCastor, William Reece Smith, Jr.,Judge E.J. Salcines, JudgeJohn F. Germany, Judge MaryS. Scriven, and lawyers LansingScriven, Gwynne Young, DelanoStewart, Fraser Himes, andWarren Dawson. The film willbe available for loan to schooland community groups.Many thanks to the productionteam of Rachael Greenstein,Victoria McCloskey, Dara Cooley,Luis Viera, Tammy Briant, andStan Arthur for their commitmentto the project.Thank you to the sponsors:n Akerman Senterfitt LLPn Burr & Forman LLP, formerly Williams Schifinon The American Bar Association n The Florida Bar Associationn Tampa Bay History Center n Trial Consulting Services, LLCJUNE 2013| HCBA LAWYER55

EMERGENCY MEDICAL CONDITION: PIP’S NEW FACELIFT TO REDUCE LITIGATION?Solo/Small Firm SectionChairs: James A. Schmidt - James A. Schmidt, P.A.; and S.M. David Stamps, III - S.M. David Stamps, III P.A.In the late 1960s, the FloridaLegislature became concernedabout the volume of lawsuitsstemming from autoaccidents. Insurance companies hadincreasingly denied injury claimsand the only recourse for claimantswas to file suit to recover medicaland disability damages. In response,the Legislature sought to create a“no fault” insurance law that wouldallow every auto policyholder tocollect injury damages from theirown insurance company byproviding an easier avenue tocollect damages for injuries.In 1972, the Florida Legislatureenacted its first Personal InjuryProtection (“PIP”) law that nowrequires every auto insurancepolicy to provide up to $10,000of “no fault” coverage for medicalexpenses incurred. PIP coveragealso provides a disability benefitthat covers up to 80 percent oflost wages resulting from an autoaccident and a $5,000 deathbenefit. While providing a basecoverage to policyholders whosuffer injuries, the number of autoinjury related lawsuits has increasedsignificantly since the PIP law hasbeen in place.Over the past 10 years, the PIPlaw has received intense scrutinyand wasalmost allowedto expire inOctober 2007.Debatecontinued asto whetherthe absenceof the PIPlaw woulddecreaselitigation,but minorreforms havemaintained itsexistence. OnJanuary 1,2013, the PIPlaw received amajor facelift.The public hasreceived guidance on the firstcomponent, which now requirespolicyholders to receive medicaltreatment within 14 days of anaccident or they will forfeit medicalexpense coverage under PIP.However, there is a secondcomponent that has not receivedas much press. Claimants must nowbe treated by a medical doctor,osteopathic physician, dentist,or physician assistant (under thesupervision of a medical doctor).These are the only medicalprofessionals under the new PIPlaw who can make a determinationas to whether a claimant has an“emergency medical condition.”The significance of this medicalconclusion is the ability to collect upto the full $10,000 in PIP coverageif an “emergency medical condition”exists and $2,500 if one does not.An “Emergency MedicalCondition” is defined by the[H]ow does one applythe Legislature’s definitionto a soft tissue injuryin which the patientcomplains of severe pain?FloridaLegislatureas “a medicalconditionmanifestingitself by acutesymptoms ofsufficientseverity, whichmay includesevere pain,such thatabsence ofimmediatemedicalattention couldreasonably beexpected toresult in anyof the following:serious jeopardyto patient health, serious impair -ment of bodily functions, seriousdysfunction of any bodily organor part.” Fla. Stat. § 395.002(8)(a),(2012).I understand that an injuryrequiring a basic Band-aid wouldnot meet the definition of an“emergency medical condition.”But how does one apply theLegislature’s definition to a softtissue injury in which the patientcomplains of severe pain? WhetherPIP’s new facelift will reduceaccident-related litigation remainsto be determined. Rest assuredthere will be new litigation arisingfrom thedefinition itself.Author:Michael L.Broadus,Legal AdvocateGroup, P.A.GET SOCIAL. FOLLOW THE HCBA ON56 JUNE 2013 | HCBA LAWYER

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HOSPITALS & INDEPENDENT CONTRACTORS: A SPLIT WORTH RESOLVING?Trial & Litigation SectionChair: Kevin M. McLaughlin - Wagner, Vaughan & McLaughlin, P.A.and FloridaAdministrativeCode 10 imposedupon thehospital an“expressed legalduty to furnishanesthesiaservices to itssurgical patients‘consistent withestablishedstandards.’” 11The court heldthat theprovisions did“impose [such a]duty for nonnegligentanesthesiaservices on allsurgicalhospitals” 12because therelationshipbetween hospitaland patient was“importantenough . . . thatit should bedeemed non-delegable without thepatient’s express consent.” 13Accordingly, the Wax court found“a statutory and a contractual basisfor the hospital’s duty of providingnon-negligent, competent surgicalanesthesia services.” 14Alternatively, in Reth, on almostidentical facts, 15 the Second Districtreasoned that while provisions ofthe Florida Statutes and FloridaAdministrative Code requirehospitals to “competently andadequately staff an anesthesiadepartment,” the “duty to practiceanesthesiology in a non-negligentmanner is owed by the patient’sphysician and nurse anesthetists,not the hospital, and that thestatutes and rule do not create anon-delegableduty that requireshospitals topracticeanesthesiology.” 16Since Reth, inNewbold-Fergusonv. AMISUB(North RidgeHospital), Inc. andKristensen-Kepler v.Cooney, the FourthDistrict appliedand perhapslimited the Waxrule in differentcontexts.In Newbold-Ferguson, 17 whichinvolved the“negligent actsand omissions[of an emergencyroom physician]as a result of anondelegableduty,” 18 thecourt found thata hospitalassumed anon-delegable duty to provide“competent emergency treatmentbased upon an implied contract”when a patient “generally haslittle, if any, control over whowill be the treating physician.” 19Alternatively, in Kristensen-Kepler, 20a wrongful death suit against anambulatory surgical center for anegligently performed electiveoutpatient procedure, the courtheld that Wax did not “impose aduty for non-negligent anesthesiaservices on all hospitals,” when“a patient has chosen to performan elective procedure.” 21While the Fourth District hassomewhat clarified the applicationFlorida’s Second andFourth District Courts ofWhile the general rule inAppeal are split onwhether hospitals areFlorida is that hos pitalsvicariously liable for the negligenceare not liable for theof independent contractornegligence of physiciansphysicians under the doctrine ofnon-delegable duty. 1 Though thewith hospital privileges, 2general rule in Florida is thatthe non-delegable dutyhospitals are not liable for thenegligence of physicians withdoctrine creates directhospital privileges, 2 the nondelegableduty doctrine createsduties for hospitalsdirect duties for hospitals to provideto provide adequateadequate physician services.physician services.In Wax v. Tenet Health SystemsHospitals, Inc., the Fourth Districtfound that hospitals could bevicariously liable for the acts andomissions of an independentcontractor anesthesiologist; 3 fouryears later, in Tarpon SpringsHospital Foundation, Inc. v. Reth,the Second District disagreed andcertified a question of great publicimportance to the Florida SupremeCourt—an overture the courtdenied. 4In Wax, a patient was admittedto a hospital for elective outpatienthernia surgery. 5 Twenty minutesinto surgery an emergency codeblue was declared, and the patientdied. 6 The patient’s personalrepresentative filed a suit againstthe hospital and others under theWrongful Death Act. 7The issue on appeal was whetherprovisions of the Florida Statutes 89 Continued on page 5958 JUNE 2013 | HCBA LAWYER

HOSPITALS & INDEPENDENT CONTRACTORS: A SPLIT WORTH RESOLVING?Trial & Litigation SectionContinued from page 58of Wax, the unresolved split leavestrial courts statewide wonderingwhich rule to follow. In the interim,the unresolved split exposes hospitalsto additional avenues of attack andcreates statewide uncertainty inmedical malpractice lawsuits.1Compare Wax v. Tenet Health Sys.Hosp. Inc., 955 So. 2d 1 (Fla. 4thDCA 2006) with Tarpon Springs Hosp.Foundation, Inc. v. Reth, 40 So. 3d 823(Fla. 2d DCA 2010).2See generally Roessler v. Novak, 858So. 2d 1158 (Fla. 2d DCA 2003).3955 So. 2d at 9 (“We concludethat because the statute and regulationimpose this duty for non-negligentanesthesia services on all surgicalhospitals, it is important enough thatas between the hospital and its patientit should be deemed non-delegablewithout the patient’s express consent.”)440 So. 3d at 824 (“Thus, wereverse the denial of the Hospital’smotion for directed verdict and remandfor the trial court to enter judgmentin the Hospital’s favor. In doing so, wecertify conflict with Wax v. Tenet HealthSystem Hospitals, Inc., 955 So. 2d 1 (Fla.4th DCA 2006), to the extent that itdetermined a hospital has a nondelegablestatutory duty to provide nonnegligentanesthesia services to patients.”)5Wax, 955 So. 2d at 3.6Id.7§§ 768.16-768.26, Fla. Stat. (2011).The allegations in Wax included thefollowing: (1) the negligent performanceof a pre-surgical consultation andassessment, (2) the negligent administrationand management of anesthesia,and (3) negligent attempts at failedresuscitation. Wax, 955 So. 2d at 3.8Section 395.002(13)(b), FloridaStatutes defines a “hospital” as anestablishment that regularly makes“treatment facilities for surgery.”9Section 395.1055(1)(a), FloridaStatutes, requires the Agency forHealth Care Administration (AHCA)to adopt rules that include “reasonableand fair minimum standards forensuring that ... [s]ufficient numbersand qualified types of personnel andoccupational disciplines are on dutyand available at all times to providenecessary and adequate patient careand safety.”10Rule 59A-3.2085(4), FloridaAdministrative Code, provides that“Each Class I and Class II hospital,and each Class III hospital providingsurgical or obstetrical services, shallhave an anesthesia department,service or similarly titled unit directedby a physician member of theorganized professional staff.”11Wax, 955 So. 2d at 9 (citing§ 395.1055(1)(d), Fla. Stat.).12Id.13Id.14Id. at 11.15Reth, 40 So. 3d at 824-27. Rethinvolved a medical malpractice actionfiled by the personal representative ofMr. Reth’s estate against ananesthesiologist, nurse anesthetists, ananesthesia practice, and a hospital. Inits suit, plaintiff asserted that negligentanesthesia services provided duringsurgery resulted in Mr. Reth’s death.Regarding the cause of action againstthe hospital, Reth alleged that thehospital was “liable for the conduct of[the] nurse anesthetists . . . under atheory of a non-delegable duty” byasserting that “sections 395.002(13)(b),395.1055(1)(a), (d), Florida Statutes(2005), and Florida AdministrativeCode Rule 59A-3.2085(4) created anexpress legal duty for the Hospital tofurnish nonnegligent anesthesia servicesto its surgical patients.” Id.16Id. at 828.1785 So. 3d 502 (2012).18Id. at 503.19Id. at 505 (emphasis added).2039 So. 3d 518(2010).21Id.Author:David W. Hughes,Hill WardHendersonJUNE 2013| HCBA LAWYER59

HILLSBOROUGH COUNTY BAR ASSOCIATION BENEFIT PROVIDERSListed below are companies that have agreed to participate as a HCBA Benefit Provider.They offer all HCBA members a special discount or value added service especially for you, an HCBA member.n AFFINISCAPE - A Law Firm Merchant Account through our benefitprovider enables your practice to accept credit cards in aprofessional manner and in compliance with trust accountingprocedures. Why turn away potential clients simply because they cannot pay a retainer in advance? For more information, go tohttp://hillsbar.affiniscape.com.n AGW CAPITAL ADVISORS is an investment consulting firm with afocus on advising professional service firms on their 401(k) anddefined benefit retirement plans. AGW serves several wellestablishedlaw firms in the Tampa Bay area, providing them withexpertise on fund menu design, investment manager duediligence, record-keeper search and selection, ongoingperformance measurement and evaluation, and fiduciaryoversight. AGW offers HCBA members a 20% discount for acomprehensive investment review and fee analysis of their firm’sretirement plan. For more information, please contact Jay Annis, PJGardner or Paul Whiting, Jr. at (813) 254-4700 or visit AGW’s websiteat http://www.agwcapital.com.n THE BANK OF TAMPA - With assets in excess of $1 billion, The Bankof Tampa is the largest independently owned bank in HillsboroughCounty. More than 450 Hillsborough County law firms rely on TheBank of Tampa for their banking needs because of our expertiseand understanding of the unique needs of legal professionals. ForHCBA members, The Bank of Tampa is offering its Minaret Diamondrelationship package for free, with no minimum average monthlybalance and no monthly maintenance fee. Minaret Diamondcomes with an interest bearing Minaret Checking account, apersonal checking account, free checks with leather checkbookcovers, and no foreign ATM fees and no surcharge fees at over1000 Publix Presto! ATMs. In addition, The Bank of Tampa will refundsurcharge fees imposed by other U.S. banks of up to $25 permonth. Our Minaret Diamond package also comes with a free VisaCheck Card with special higher purchase and withdrawal limits,plus a Minaret Diamond Visa credit card with no annual fee and aspecial low annual percentage rate (subject to credit approval).Both cards are eligible for Visa Extra Rewards. Minaret Diamondalso comes with numerous other complimentary services andincludes Personal Online Banking and our CheckFree Bill Payservice at www.bankoftampa.com, plus Mobile Banking. For moreinformation, contact Jeff Armstrong at (813) 998-2733, call us at(813) 872-1200, or visit any of our nine Hillsborough County offices.n C1 BANK is a proud HCBA benefit provider, and committed to“clients first…community first.” With almost $1 billion in localassets, C1 Bank is the fastest growing bank in the Tampa Bay areaand the official bank of the Tampa Bay Buccaneers. Our EmeraldBanking group was created to be your financial resource, withsophisticated lending and treasury products and creativesolutions to meet the everyday and extraordinary banking needsof your practice and family. We measure success by the kind ofrelationship we build with you. For HCBA members, we are proudto offer our Value checking account package with direct depositwith no charge and no minimum balance. Partners are eligiblefor our exclusive Emerald checking at no charge as well. Formore information on practice or personal banking, pleasecontact Christina Chase at 727-456-5692 or by email atChristina.chase@c1bank.com.n FIRM SOLUTIONS, LLC is a business consulting firm specializing incustomized outsourcing solutions for the legal industry as well as internalbusiness process optimization. Our firm’s partners have over 30 years ofcombined experience in the legal profession, serving clientsnationwide. Originally developed to host large law firms in themortgage banking arena, our team has progressively developedprocess enhancing initiatives designed specifically for small to mediumsize law firms. With our services, our clients have the opportunity tooutsource key business practices as a means to increase processefficiency as well as time management. These practices range frome-filing pleadings with the Clerk of the Court through CourtXpress,Human Resource services, Training, Flexible workforce/staffing,Accounting functions, and document management through ourVirtual Mail Room. Our team strives to provide quality services whilealleviating unnecessary burdens from our clients, allowing them focus ontheir core competencies. At Firm Solutions, we let lawyers practice law.n JOHN BOYER, INC. offers HCBA members a permanent 15%reduction in asset management fees and will waive the initial financialplanning fee for new clients. John Boyer, Inc. is an independentlyowned fee-based Registered Investment Advisor. The firm’s mission is tosimplify its clients’ lives by getting their financial house in order. It offersa full range of personalized financial services, from retirement, estateand tax planning to investment management, asset protection andwealth preservation. Principal John Boyer, who established the firm in1995, is a Certified Financial Planner with over 20 years of experience.Contact Sarina Correa at (813) 254-9500, Sarina@johnboyerinc.com.n LNS TECHNOLOGIES is a leader in IT & Network Systems infrastructureservices and solutions. Since 1994, LNS has consistently provided ourlegal clients with the latest technology and support tools allowing theirbusinesses to operate efficiently. LNS Technologies’ scalable, ITsolutions and services increase productivity, reduce costs, andoptimize asset utilization to derive maximum value from your ITinvestment. All HCBA members receive a FREE computer and networksystem health check upon request. Contact Sales at (813) 221-1315,or email your request or requirement to: info@LNStech.com. Visit ourwebsite at: http://www.LNStech.com.n PRINTERS PLUS is a Benefit Provider.n THOMPSON STUDIOS - We are proud to offer you an excellentphotography resource for all law firms and individual photos.Thompson Studios is an all-digital, world-class photography studio. Instudio or on location, we will capture all your photographic visions ...and we guarantee you’ll have fun doing it. Thompson Studios willcome to your office for firm photos and headshots for yourconvenience. As a HCBA member, we offer you $100 off your locationphoto session. Keep us in mind for holiday and special occasionphotos as well. Contact Kim at Thompson Studios at (813) 994-2000.n TRIAL CONSULTING SERVICES, LLC (TCS) provides wide-rangingservices and solutions to support every aspect of your case. Ourservices include exhibit boards, trial graphics, animation, medicalillustrations, electronic trial presentation, video depositions, DVT,mock trials, CLE seminars and more. Our expert team is experiencedin all practice areas of law. Visit our website at www.trialcs.com fora complete listing of services and testimonials. All HCBA membersreceive a 10% discount on all trial research including mock trials.60 JUNE 2013 | HCBA LAWYER

Trial & LitigationSection QuarterlyLuncheonThe Trial & Litigation Section held its lastquarterly luncheon of the year on May 1, 2013. The section handedout its annual awards recognizing outstanding work.AWARD RECIPIENTS:n Michael A. Fogarty Memorial In the Trenches Award: Bradley E. PowersThe award recognizes excellence in civil litigation.n James H. Kynes Memorial In the Trenches Award: Edward J. PageThe award recognizes excellence in criminal litigation.n Herbert G. Goldburg Memorial Award: William C. FryeThis award marks his distinguished legal career exhibitingfairness, integrity, courtesy, zeal, forensic skill, legal acumen,good sense, and respect for fellow lawyers.n Court Family Award: Ginger SchechterThe award is given for service above and beyond the call of dutyto the bench, bar, and public.Thank you to our sponsor:Top: Bradley E. Powers, recipient of the Michael A. Fogarty Memorial In the TrenchesAward, and his family.Center left: Trial & Litigation Section Chair Kevin McLaughlin and William C. Frye,recipient of the Herbert G. Goldburg Memorial Award.Center right: Ginger Schechter, judicial assistant for Judge Ashley Moody, recipientof the Court Family Award.Bottom: Edward J. Page, recipient of the James H. Kynes Memorial In the TrenchesAward, and his family.JUNE 2013| HCBA LAWYER61

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HCBA Members, welcome to awhole new level of professionaland executive banking.OfficialEmerald Professional and Executive Banking from C1 Bank.Designed to fit the distinctive needs of physicians, attorneys, and working professionals, Emerald Professional and ExecutiveBanking from C1 Bank combines traditional banking services you expect with executive courtesies you deserve.host of other sophisticated banking products you might not expectFor a complete list of Emerald Professional and Executive Banking services, visit C1Bank.com/Emerald or your localC1 Bank location.Contact us for a consultation today.C1Bank.com/Emerald (877)266-2265 HCBA@C1Bank.com21 locations across Tampa BayMEMBER FDICLoans subject to credit approval.JUNE 2013| HCBA LAWYER63

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THANK YOUThe HCBA thanks its many generous sponsorsand advertisers for your support this year.We had an event-filled year that would not havebeen possible without you. Our officialpartners and other major sponsors:n The Bank of Tampan C1 Bankn Florida Lawyers Mutual Insurance Companyn Gunn Law Groupn The Yerrid Law FirmINTRODUCINGWEBSITE DESIGNFree Press has served the Tampa area since 1911providing quality printing and graphic design.We have now expanded our operations to includewebsite development. Our knowledgeable andexperienced staff will work closely with you toprovide exactly what you need to compete inthe marketplace. Call today or go online for afree quote, 4freepress.com.FREE PRESS PUBLISHING COMPANY, INC.OFFSET AND DIGITAL PRINTING, LEGAL NEWSPAPER, WEBSITE DESIGN1010 W. CASS ST., TAMPA, FLORIDA 33606 n 813.254.5888 PH n 813.902.6599 FAX n 4freepress.comJUNE 2013| HCBA LAWYER65

AROUND THE ASSOCIATIONErin Smith Aebel, partner inthe Tampa office of Shumaker,Loop & Kendrick, LLP, has beenselected chair of the Tampa BayAmerican Diabetes AssociationCommunity Leadership Board.Aebel also has been appointed tothe Florida Bar Health LawCertification Committee.Burr & Forman LLP is pleasedto announce that Tampa partnerWilliam (Bill) J. Schifino, Jr., hasbeen elected to the board of trusteesof the University of Florida’s LevinCollege of Law. Schifino will servea five-year term, beginning inSeptember 2013.Mary Li Creasy, partner andco-chair of the Employment andLabor Law practice group atShumaker, Loop & Kendrick,LLP, has been appointed chair ofthe Labor and Employment LawBoard Certification Committee forThe Florida Bar for 2013-2014.Mediator/lawyer Hilary Highrecently spoke on a panel at theWorking Women of Tampa Bayluncheon about “leaning in” toone’s career.Tammy B. Denbo, partnerin Masten, Peterson & Denbo,LLC, recently received the FBIDirector’s Community LeadershipAward (DCLA) for communityservice in 2012.Shane Costello has joinedHill Ward Henderson. He is anassociate in the firm’s Real PropertyLitigation Group.Julio C. Esquivel, a partner inthe Tampa office of Shumaker,Loop & Kendrick, LLP, and amember of the firm’s nationalmanagement committee, has beenelected to the Board of Directorsof the Gasparilla Music Festival.Vanessa Goodwin, associatein the Tampa office of Shumaker,Loop & Kendrick, LLP, has beenappointed to the board of directorsof Are You Safe, Inc.R. Lawrence Heinkelwelcomes Lydia M. Gazda toHeinkel Law Group.Shumaker, Loop & Kendrick,LLP, is pleased to announce thatDuane A. Daiker, partner in theTampa office, spoke at the 24thAnnual Southern Surety & FidelityClaims Conference April 17-19,2013, in Charleston, S.C. The topicwas “Preventing and Defending‘Strike Suits’ Against Sureties.”Jeanne T. Tate, P.A., a localadoption attorney, is proud toannounce that Steven Hurwitz,who practices in the Tampa office,has been recognized by TheFlorida Bar as Board CertifiedAdoption Attorney.Shumaker, Loop & Kendrick,LLP, is pleased to announce thatBrian C. Willis, associate in thefirm’s Tampa Office, was part of apresentation by Connect Tampa Bayat the NAIOP Tampa Bay Watchmeeting in April. The topic was“Transportation Options for TampaBay.” Willis also spoke abouttransportation at Ignite Tampa Bayin April.Stathia Sferios has joined theTampa office of Shumaker, Loop& Kendrick, LLP, as an associatein the Bankruptcy, Insolvency andCreditors’ Rights and CommercialLitigation departments.After 15 years with Wilkes &McHugh, P.A., in Tampa, JimFreeman has left the firm to openFreeman Mediation Servicesin St. Petersburg.Gwynne A. Young, CarltonFields’ Tampa shareholder andpresident of The Florida Bar,received the Achievement Awardfrom the Hillsborough Associationfor Women Lawyers (HAWL) onMay 8, 2013.Edward J. Page, a CarltonFields’ Tampa shareholder, iscelebrating his 25th year ofcontinuous board certification inCriminal Trial Law by The FloridaBar and by the National Board ofTrial Advocacy (NBTA).ATTENTION HCBA MEMBERS:SEND YOUR NEWS FOR AROUND THE ASSOCIATIONTO WENDY WHITT AT WENDY@HILLSBAR.COM.66 JUNE 2013 | HCBA LAWYER

JURY TRIAL INFORMATIONADVERTISING INDEXFor the month of: February2013Judge: Honorable Steven SelphParties: Michaela Wren vs.Destiny HallAttorneys: For Plaintiff:Brook Nutter & Frank Miranda;For Defendant: Scott K. Hewitt& Stacy YatesNature of Case: Motor vehicleaccident resulting in neck andback surgeryVerdict: Defense verdict;motion for fees and cost pendingFor the month of: March 2013Judge: Honorable RichardTombrinkParties: Wayne Vance andDarla Vance vs. Tower HillInsurance CompanyAttorneys: For Plaintiff:K.C. Williams; For Defendant:Chris Marone and Dan EwinNature of Case: Sinkhole claimwas denied by Defendant. Neutralevaluator set forth by Departmentof Financial Services also testifiedthere was no sinkhole damage.Verdict: For the plaintiff in theamount of $260,000. Plaintiff ’smotion for attorney’s fees, costs andinterest pending.For the month of: April 2013Judge: Honorable WilliamLevensParties: Dylan Rivera vs.Concord Management andBrandon Crossing PartnersAttorneys: For Plaintiff:R. Stanley Gipe; For Defendant:Richard B. Mangan and R. CliftonAcordNature of Case: Premisesliability matter involving a traumaticbrain injury to a 2 1 /2 -year-old.Verdict: Defense verdictFor the month of: May 2012Judge: Honorable James ArnoldParties: Terrence D. Bolden vs.Kathy Moats and Bobby MoatsAttorneys: For Plaintiff:Stanley Gipe; For Defendant:Karen BarnettNature of Case: Motor vehicleaccident. Negligence admitted.TMJ surgeryVerdict: Defense verdict.No causation. Defendant’s motionfor fees and costs pending.Bay Area Legal ......................................................49Buell & Elligett ........................................................33C1 Bank ................................................................63Charles W. Ross, P.A. ............................................16Clark & Martino ......................................................39Cooley Law School ................................................59DOW Electonics ....................................................38Economic Recovery Group ............Inside Back CoverEnglander Fischer ..................................................24Florida Lawyers Mutual Insurance Company ..........33Fowler White Boggs P.A. ........................................38Free Press ..............................................................65Gunn Law Group............................Inside Front CoverHimes & Hearn ........................................................6Johnson, Pope, Bokor, Ruppel & Burns, LLP..........36Lewis, Longman & Walker P.A. ..............................36Mediation FLA, LLC..................................................6Older & Lundy ........................................................64Perzel & Lara Forensic CPAs ....................................8Richard A. Tanner ....................................................4Robert Bonanno ....................................................61Showtech Solutions................................................36Shumaker, Loop & Kendrick, LLP ..........................19Strategic Health Education ....................................68The Bank of Tampa ..................................Back CoverThe Centers ............................................................7Thompson Studios ................................................57Trial Consulting Services, LLC ................................62Lawyers for LiteracyAbout 40 volunteers read to the students at the county’s Head Start andEarly Head Start centers on April 24, 2013.The HCBA donated 1,500 books to the centers.Tribridge ................................................................63Vector Commercial Real Estate Services, LLC ........18W.H. Simon & Company, P.A. ................................14Wilkes & McHugh..............................................34-35Woody Isom, Jr., P.A. ............................................65JUNE 2013| HCBA LAWYER67

Weeki Wachee is one of Florida’s oldest roadsideattractions. The spring at Weeki Wachee is so deep thatthe bottom has never been found. The strong currentmakes the synchronized ballet moves performed bythe attraction’s famous mermaids even more of a feat.Tourists have been enjoying the mermaid shows from theunderwater theater since 1947. Today, Weeki WacheeSprings is a state park.Fort Lauderdale’s shores no longer are filled with thethrongs of college students who once inhabited them.Since 1985, the city has focused on attracting families andEuropean tourists.POSTCARDS COURTESY OF RAYMOND T. (TOM) ELLIGETT, JR.68 JUNE 2013 | HCBA LAWYER

LAKEOKEECHOBEEARE YOUR CLIENTSELIGIBLE?IT’S WORTH THE LOOK.A Business and Consumer Law FirmERGIS A STATEWIDE TEWLAW FIRM REPRESENTINGBUSINESSES WITH THEIR BP CLAIMSThe BP Settlement Program represents anextraordinary effort to address the damage doneto businesses as a result of the BP oil spill in a fair,objective and reasonable manner.Many business owners assume that their losses have tobe directly related to the oil spill to qualify for the classaction settlement, but that’s simply not the case. Thanksto BP, billions of dollars will be coming directly back tobusinesses that felt the trickle-down effects and sawchanges in their revenue. An average of 12,000 claims economic loss claim value exceeding $200,000.MARIANNAANNAPENSACOLAJACKSONVILLEFT.WALTON BEACHTALLAHASSEEPANAMA CITYPERRYRAPALACHICOLAALACHICOLAACHICOLACROSS S CITYGAINESVILLEEOCALAEconomic Loss Settlement ZonesZoneASPRING HILLLORLANDOZoneBLAKELANDZoneCCLEARWATERATERZoneDST. PETERSBURGRGTAMPAASARASOTAACAPE CORALFT. MYERSGulf of MexicoORMOND BEACHMELBOURNEFORT LAUDERDALEDALENAPLESMIAMI1KEY WESTWith more than 35 dedicated attorneys, CPAs and otherprofessionals, ERG handles claims entirely in-house and Have you been evaluated yet?Henry “Hank” DidierJay M. FisherVISIT ERGLAWFIRM.COMFOR MORE INFORMATION ABOUT HOW WE ARE HELPING FLORIDA RECOVER.SERVING FLORIDA’S WESTCOAST

THE HILLSBOROUGH COUNTY BAR ASSOCIATIONLAWYERCHESTER H. FERGUSON LAW CENTER1610 N. TAMPA STREETTAMPA, FL 33602PRSRT STDU.S. POSTAGEPAIDTAMPA FLPERMIT 590No Closing Costs...Our Prime Home Equity Credit LineA readily available resource with an annual percentage rate based on the prime rate.*The Bank of Tampa Prime Home Equity Credit Line at a Glance• Annual percentage rate based on the prime rate• Minimum credit line is $10,000• A maximum loan to value ratio of 80%• Instant access to funds, just by writing a check for $100 or more• 10-year draw period• No application or membership fees• No closing fees on credit lines … periodHCBA members are entitled to our premier Minaret Diamondrelationship package with no monthly service charges andminimum requirements. Call or visit any of our offices to apply.813-872-1200www.bankoftampa.comHCBA Benefit Provider since 2005.*Subject to credit approval. The APR may change and is based on The Wall Street Journal prime, subject to a minimum APR of 3.75%. The Wall Street Journal prime is 3.25% as of April 1, 2013. The maximum APRis 18%. The Bank of Tampa will pay all bank-required closing fees on Prime Home Equity Credit Lines. Property and flood insurance may be required. Available to consumers living in the greater Tampa Bay area,which includes Hillsborough, Pinellas, Pasco, Manatee and Sarasota counties. The line of credit must be secured by a first or second mortgage on the borrower’s principal residence or their second/vacation home(excluding investment/rental property). Maximum loan to value ratio of 80% on first $1 million of home valuation; 70% maximum loan to value on amount of home valuation in excess of $1 million. An early payoff feeof up to $750 may be imposed if you terminate your home equity line within 12 months of opening.You may be eligible for significant tax benefits, which we encourage you to discuss with your tax advisor. Assets over $1 billion Member FDIC