the hillsborough county bar association tampa, florida

L aw yerTHE HILLSBOROUGH COUNT Y BAR ASSOCIATIONTAMPA, FLORIDA | FEBRUARY 2010 | VOL. 20, NO. 5

IN THIS ISSUEdivisionsfeatures93 REALITY CHECKEditor’s Message by Kristin Norse4 WRITER’S BLOCK, THE BCDAND REFLECTIONS ONFIRST SEMESTERHCBA President’s Messageby Kenneth G. Turkel6 5 GREAT TIPS FROM5 GREAT LAWYERSYLD President’s Messageby Anthony J. Fantauzzi III9 JUDGED BY THE CONTENTOF YOUR CHARACTERState Attorney’s Messageby Mark A. Ober11 A LOOK BACK AT 2008LAW & LIBERTY DINNERHillsborough CountyBar Foundation MessageMichael S. Hooker, HCBF President12 EXCHANGING WHITE COATSFOR BLACK ROBESFrom the Courthouse bySumeeta Mazzarolo M.D.about usHILLSBOROUGH COUNTY BAR ASSOCIATIONL awyerChester H. Ferguson Law Center1610 N. Tampa Street, Tampa, FL 33602Telephone (813) 221-7777, FAX (813) 221-777825 LEADERS: FRASER HIMESby Raymond T. (Tom) Elligett, Jr.28 TRAFFIC FINES AND BANKRUPTCYby Camille J. Iurillo andSabrina C. Beavens32 NICOLE BLACK: BOSS OF BLOGSby Rachel M. Zahorsky34 THREE EVENTS IN ONE DAY43 HCBA YLD AND BOYS &GIRLS CLUB HOLIDAY PARTY45 BATTLE OF THE BANDS47 LEADERSHIP INSTITUTEEditorKristin NorseExecutive DirectorConnie R. PruittADVERTISINGPR/Communications CoordinatorLisa Carricklisa@hillsbar.com, (813) 221-777925OFFICERS & DIRECTORSPresident Kenneth G. TurkelPresident-Elect Amy S. FarriorImmediate Past President Thomas R. BoppSecretary V. Stephen Cohen Treasurer Gary WalkerEx-Officio Michael S. HookerJ. Carter AndersenPedro F. Bajo, Jr.Anthony J. Fantauzzi IIIfebruaryeventsFebruary 17HCBA/CLEARWATERBAR ASSOCIATIONJOINT FAMILY LAW CLE,12:00 PM - 5:00 PMFebruary 18CONTINUING MEDIATOREDUCATION CLE8:30 AM - 5:00 PMFebruary 18CONSTRUCTIONLAW LUNCHEON12:00 PM - 1:00 PMFebruary 18CORPORATE COUNSELLUNCHEON12:00 PM - 1:00 PMFebruary 24SOCIAL NETWORKINGPOLICIES4:00 PM - 6:00 PMBenjamin H. Hill IVSusan E. Johnson-VelezRobert J. NaderRebecca H. SteeleJennie G. TarrLara J. TibbalsAlysa J. Ward(ISSN 1553-4456) THE HILLSBOROUGH COUNTY BAR ASSOCIATION LAWYER is published monthly, except in July, August, and January, 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 HillsboroughCounty 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 $25.00. Annualsubscriptions to others, $90.00. Single copy price, $10.00. (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 informationrelating to issues and concerns of the legal community. Opinions and positions expressed in the articles are those of the authors and may not necessarily reflect those of the HCBA. Submissions of feature articles, reviews, and opinion pieceson topics of general interest to the readership of the LAWYER are encouraged and will be considered for publication.FEB 2010 / HCBA LAWYER 1

IN THIS ISSUEfebsections1414 CHALLENGING INCONSISTENTJURY VERDICTSAppellate Practice Sectionby Randy Reder18 UNDERSTANDING THEDAVIS BACON ACTConstruction Law Sectionby Rhys Leonard20 WINNING THE ABUSIVEBANKRUPTCY SERIALFILINGS GAMECorporate Counsel Sectionby Victor H. Veschio24 THE PINNACLE LESSON ONEXPERTS’ FEES AND COSTSEminent Domain Sectionby Lewis E. Garlisi40 UNCERTAINTY FORTHE RED FLAGS RULEHealth Care Law Sectionby Patrick J. McNamaraand Eric D. Nowak42 ICANN’S APPROVED PLAN TOOPEN THE WORLD WIDE WEB’SDOMAIN NAME SYSTEMIntellectual Property Sectionby Mercedes Gonzalez Hale46 NEW ADMINISTRATIVEORDER FOR TEMPORARYRELIEF HEARINGSMarital and Family Law Sectionby Alexander Caballero48 GENERAL THOUGHTSON MEDIATIONMediation and Arbitration Sectionby Larry Stagg50 CHANGES THAT WOULD MOREEFFECTIVELY MEET THE NEEDSOF SMALL/SOLO FIRMSSolo/Small Firm PractitionersSection by Anthony J. Garcia52 USING TRUSTS FORANNUAL EXCLUSION GIFTSTO SKIP PERSONSTax Law Sectionby Donna L. Longhouse54 VIEW VOIR DIRE AS A JURORTrial and Litigation Sectionby Mark D. Tinker42committees1616 REFLECTION ON THEIMPORTANCE OF VOLUNTEERINGCommunity Services Committeeby Stacy A. Estes and Lori A. Vella22 THIRD ANNUAL CENTRALFLORIDA DIVERSITY PICNICSET FOR FEBRUARY 27. 2010Diversity Committeeby Joanna Garcia44 LAW WEEK 2010: LAW INTHE 21ST CENTURYLaw Week Committeeby Brad F. Barriosin every issue23 100 CLUB53 BENEFIT PROVIDERS55 CALENDAR OF EVENTS56 CLASSIFIED ADVERTISING57 JURY TRIAL INFORMATION58 AROUND THE ASSOCIATIONabout the coverJudgment at Nuremberg, United Artists/Roxlom, 1961 (BW, 190 minutes).An American Judge at the Nuremberg war trials is faced with the issue of how much responsibility and guilt an individual must bear for crimescommitted or condoned by him on the order of, and in the interest of, the State.Judgment at Nuremberg is an unsettling account of the war crimes committed in Germany during World War II, especially in the concentrationcamps. The script is based on true events which actually unfolded at the Nuremberg trials when the world first learned of the atrocities. The film alsodelves very deeply into the ethics of assigning war crimes responsibility to individuals, and contains actual footage from German concentration campswhich is as disturbing today as it was in 1961.2FEB 2010 / HCBA LAWYER

e d i t o r ’ s m e s s a g eKristin Norse, Kynes,Markman & Felman, P.A.RealityCheckA disenchanted law schoolgraduate recently posted a videoon YouTube entitled “A LawSchool Carol.” The video—whichhas ghosts visiting a law schoolstudent to dissuade him fromhis chosen career before it is toolate—delivers a dishearteningmessage about the current stateof our profession.I’m sympathetic to the plightof the video’s producer. I stillremember my law schoolorientation, when I was givenhalcyon stories of the jobs mypredecessors had found andthe average salaries they earned.I recall sitting with my father,cutting that figure in half, andthinking that even under mymost conservative of estimatesI should easily land a job thatwould allow me to meet themonthly payments of what was(admittedly) a very large amountof law school debt.The year I began law school,the law school had placed 80%of its graduates before the prioryear’s graduation. The year I left,they placed 20%. Like many lawstudents today, I faced a jobmarket where most firms werelaying off, not hiring. When thelaw school talked about averagesalaries, it never mentioned theaverage salary of an assistantstate attorney or publicdefender—salaries that couldI still remember my law school orientation,when I was given halcyon stories of the jobsmy predecessors had found and the averagesalaries they earned.not pay the student loan debtmany graduates amassed. Thepitch was clear: You’ll get a jobin a large law firm and roll inthe dough—don’t worry aboutthe cost! But the average salarystatistic hid a larger truth aboutthe vast ranges of salaries alawyer who gets work canactually earn—particularly ifthey work somewhere otherthan a large private law firm.I don’t regret going to lawschool—even though I continueto write a monthly check to payfor it. I love what I do, and Icouldn’t picture myself in anyother profession. I have theopportunity to make a differencefor clients and I enjoy theanalytical challenges each casebrings. It isn’t always easy topractice law, but it has momentsof great reward. I’m no BillGates, but I enjoy many oflife’s comforts. Law remains anhonorable profession for thosewho believe in its ideals andmake their best attempts tolive up to them.What continues to bother me,however, is the false light thatwas painted for me as a youngstudent. I would not haveabandoned law school had Iknown the truth, but I wouldhave been more conscientious—both about my spending andthe extra effort needed tobuild a successful career ina competitive profession.Our profession suffers a greatdisservice if prospective younglawyers are misled about therealities of this career. Yes—somelawyers make a lot of money.Yes —students in the top of theirlaw school class usually find goodjobs. But many lawyers workin small firms or choose to dopublic interest work. Otherstake years to build up a profitablesolo practice. Prospectivelaw students who are beingencouraged to borrow six-figuresums should be advised not onlyabout the benefits of a law schooleducation, but of the risks andthe relative rewards that theymay encounter.FEB 2010 / HCBA LAWYER 3

h c b a p r e s i d e n t ’ s m e s s a g eKenneth G. Turkel, Williams, Schifino, Mangione & Steady, P.A.Writer’s Block, the BCDand Reflections onFirst SemesterBy now, you should know that this columnlends itself to a wide range of topics, from musicand movie trivia to attorney jokes to gratuitousChristmas lists from a Jewish attorney. WhenI took office and asked for guidelines, I wasgiven none. Providing me an open forum with norestrictions is the functional equivalent of Flounderlending his brother’s car to Bluto and the gang in“Animal House”.Given that background, you would think thesecolumns come easy. It’s a New Year, so I couldcertainly share my thoughts on resolutions andthe proliferation of self-help theories thrown atus during this season. Or, I could introspect asI tend to do at the end of a year and share mydeep pontifications with the reading audience.Instead, having sat down at the computer sixtimes to no avail, I faced a writer’s block for thismonth’s piece. So, I went to the best resourcepossible for cutting edge topics—my secondfamily and Law League Basketball team, theBig Chicken Dinner (“BCD”). Unfortunately atsome point during our resolution fueled chickenwing dinner they convinced me that althoughthey are some of my closest friends, they don’tcare a whole lot about my column topics. 1On all fronts we are having a greatyear, which is a direct reflection ofthe tremendous Board of Directorsthat our members elected.So, I head to the old reliable—a mid-year(or first semester) 2 report on how the year isgoing as HCBA president.At the beginning of my term, I identified threeareas on which I wanted to focus as President.First, I wanted to insure that we were doingeverything possible to support our solo and smallfirm members, because they comprise a largepercentage of our membership. Second, alongwith HCBF 3 President Mike Hooker, we are workingto strengthen the business model of the FergusonCenter so that we can maximize its utility foryears to come. Finally, we have continued to offerwonderful member social events to encourage andincrease social networking and camaraderie inour membership.Continued on page 54FEB 2010 / HCBA LAWYER

h c b a p r e s i d e n t ’ s m e s s a g eKenneth G. Turkel, Williams, Schifino, Mangione & Steady, P.A.Continued from page 4On all fronts we are having a great year, which is adirect reflection of the tremendous Board of Directorsthat our members elected. Behind the leadership ofAnthony Garcia, Susan Johnson-Velez, and AnthonyFantauzzi, our solo and small firm practice committeeis evaluating additional resources to offer to ourmembers. I would encourage anyone with ideasrelating to member benefits or services for our soloand small firm lawyers to contact that committee.Former HCBA President and current HCBF PresidentMike Hooker is doing a tremendous job leading ourFoundation. In addition to leading the Foundation’scharitable mission, he has spent hours working withHCBA leadership to maximize the operating efficiencyof the Ferguson Center, which is looked upon as amodel by other bar associations nationwide.On the social side of the HCBA, under Bob Nader’sleadership Law Follies is back! Mark your calendarsfor February 25, 2010, and come to the Tampa Theatrefor a great cocktail reception and show. Given Bob’snational acclaim for his Lincoln Day production, youare guaranteed a great night with local judges andattorneys. Also keep your calendars open for ourannual Pig Roast and other second semester events.That’s it—a little more mundane than myusual columns, but it is great to look backat the mid-ear mark and see what we haveaccomplished. I look forward to seeing everyonethis semester.Random ThoughtWhatever happened to Bo Donaldson andthe Heywoods?Turk’s TriviaThis British pop star got his start in theStephen Schwartz musical “Godspell,” beforerocking us on with a string of top 40 hits inthe 70s, leading up to his return to the theatreas Che in “Evita.” Who is he?1To their credit, BCD stalwart big men ChrisCasper and Kevin McLaughlin wanted me to write(or vent) about the courthouse security transition.2I have retained an allegiance to school-basedcalendaring in all aspects of my life.3Hillsborough County Bar FoundationPAST PRESIDENT’S LUNCHEONTop row left: Michael S. Hooker, The Honorable James (Jim) S. Moody, Jr., Thomas M. Gonzalez, Benjamin H. Hill IV, Donald W. Stanley, Jr., Mark P.Buell, Louis D. Putney, Raymond T. (Tom) Elligett, Jr., Richard A. Gilbert, Gwynne A. Young, Joseph E. Melendi. Bottom row left to right: Margaret D.Mathews, J. Fraser Himes, Thomas R. Bopp, Mary P. McCulloch, Kenneth G. Turkel, David L. Shear, Leonard H. Gilbert, The Honorable Morison Buck.FEB 2010 / HCBA LAWYER 5

y o u n g l a w y e r s d i v i s i o n p r e s i d e n tAnthony J. Fantauzzi III, Conwell Kirkpatrick As imperative as positive mentoring is to thebetterment of our vocation, many good mentorsdo not realize how important of a role they in factplay. Sometimes, even the simplest lessons maymold a good lawyer into a great one. During myyears of practice, I have learned effective tipswhich I adhere to daily. I am passing theselessons along as a tribute to those great lawyersand mentors from whom I have learned them.Continued on page 7During my years of practice, I havelearned effective tips which I adhereto daily. I am passing these lessonsalong as a tribute to those greatlawyers and mentors from whomI have learned them.6FEB 2010 / HCBA LAWYER

Continued from page 6123451) “Always call a client back within 24 hours” - This is one of thefirst lessons I learned as a young lawyer from Ron Bush. As explainedby Ron, this should be practiced even when your client called witha question to which you do not yet have an answer. Just letting theclient know you received their message and are following up quicklyis crucial to effective client-communication, which is critical to aproductive practice.2) “Whatever you do as a lawyer, always have a piece ofwork-product” - Jack Fernandez is responsible for this very goodpractice tip. Although much of the work we do as lawyers results inphysical work-product, some of the work we do—certain phone callsand in-person conferences being perfect examples—do not. Havinga piece of work-product lets you know what you did during thatinevitable pre-trial file review six months later, and is somethingtangible to show to a client who may question your bill.3) “Read the Rule” - Again, as simple of a tip as this seems, itis amazingly practical and helpful. Everything we do as lawyers isgoverned by rules. Florida Rules of Civil Procedure, Federal Rules,Local Rules, Rules of Court, even Rules Governing the Florida Bar itself.I may have looked at the rule upon which a responsive motion isbased 100 times in the past, but that does not stop me from findingsomething interesting or productive that makes me glad I read it forthe 101st time. Mark Greene pounded this idea into my head yearsago, and I have been thankful for it ever since.4) “There is marketing potential in everything you do” - Aslawyers, we are all salespeople in the business of selling the legalservices we provide. Potential clients can be found everywhere fromthe guy who washes your car to the lady standing behind you in lineat the grocery store. You never know from where your next case maycome, and you have to act accordingly in all that you do. Frank Gasslerdeserves the credit for this valuable lesson.5) “Everything can be fixed” - Rick Sebek used to preach that nomatter how bad things may seem or how big a mistake you may make,keeping cool and thinking through the problem usually reveals thesolution. Of course, this tip is not true 100% of the time, and shouldnot alleviate your obligation to give 100% effort in your legal work. Butmistakes are made and “situations” do occur. The key with this tip isthat oftentimes things are not as dire as they appear, and a solutionmay be found if you stay calm. At the end of the day, none of this isworth an early grave— remember thorough is good, neurotic is bad.Ron BushJack FernandezMark GreeneFrank GasslerI hope these 5 great tips serve you as well as they have served me.Rick SebekFEB 2010 / HCBA LAWYER 7

Get Ready to Run!Get Ready for Fun!Show your Judicial Supportand Attend the HillsboroughCounty Bar Association’sJudicial Pig Roast 2010and 2 nd Annual Raceto the Courthouse 5kMarch 20, 2010 ◆ 5pm - 8pm8FEB 2010 / HCBA LAWYER

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 CircuitJudged bythe Content ofYour CharacterWhen a witness takes thestand to give testimony, hischaracter for truthfulnessbecomes relevant andthe parties may utilize allavailable evidentiary toolsfor impeachment. Themost common method forimpeachment is to questionthe witness about prior convictions for feloniesand crimes involving dishonesty. Procedurally,a party will ask the witness if he has everbeen convicted of a felony or a crime involvingdishonesty, such as petit theft. If the witnessanswers yes, the party may ask the witnesshow many times. So long as the witness answerstruthfully, the inquiry ends here. If the witnessdoes in fact have prior convictions of thistype, and denies it, the party may then seekto introduce a certified copy of the convictions.Typically, the parties wish to avoid this as it mayprovide more inflammatory information than wasavailable with the restricted form of questioning.For example, in a felon in possession of a firearmcase, the parties may wish to stipulate to the factthat the defendant is a convicted felon as opposedto allowing the introduction into evidence of acertified copy of conviction(s). The introductionof the certified copy of conviction might impartbad character of the defendant; e.g. a sex offenseconviction. In this type of stipulation the jurywill not hear the specific nature of the conviction.Impeachment by prior convictions is authorizedby Section 90.610, Florida Statutes (2009), and ispermissible in appropriate cases. However, theabsence of prior criminal convictions is notadmissible to establish good character.The parties may also show that a witness maybe unworthy of belief by introducing reputationThe most common method forimpeachment is to questionthe witness about priorconvictions for felonies andcrimes involving dishonesty.testimony, testimonial evidence of a person’sreputation within a defined community. Forreputation testimony to be admissible, a witnessmust be able to articulate that he has knowledgeof people discussing the character of the individualfor telling the truth within a defined and relevantcommunity. The witness must be aware of theperson’s general reputation in the community andthe community must be sufficiently broad to provideadequate knowledge and a reliable assessment.When a party intends to introduce reputationtestimony pursuant to Section 90.609, FloridaStatutes (2009), the opposing party should evaluatethe testimony in light of a potential “remotenesschallenge.” If the proffered testimony concerns anindividual who moved away from the communitymany years before, it may be successful. However, a“remoteness challenge” that alleges the communityitself is geographically remote to the instant courtshould fail, as an individuals’ propensity for truthfulnessmay change over time but not distance. Pitts v State,315 So. 2d 531 (Fla. 2d DCA 1975). Once a witness’sreputation for truthfulness has been attacked,evidence of a truthful character will be admissible.Up Next Month:Character Evidence: §90.404; opinion and specificinstances of conduct.FEB 2010 / HCBA LAWYER 9

From Watergate to the Supreme Court, the CIA, the Pentagon,President Clinton,the Federal Reserve, the 9/11 terrorist attacks,four books on the wars of President George W. Bush, and nowthe Obama administration, Bob Woodward has consistentlyfound the inside, hidden story of Washington Institutions andthe American Presidency.For information or to RSVP, call HCBA (813) 221-7777.Individual reservations are also available throughwww.hillsbar.com.Sponsorships available.Please contact Darlene Kelly, (813) 221-7774.10FEB 2010 / HCBA LAWYER

A Look Backat 2008 Law &Liberty DinnerFeatured speaker Charlie Wilson, congressman andsubject of the bestselling book “Charlie Wilson’s War”and popular movie by the same name starring JuliaRoberts and Tom Hanks, spoke to a crowd of morethan 500 at the Hillsborough County Bar Foundation’sAnnual Law & Liberty Dinner. This year, join us in ourexclusive, invitation-only dinner featuring Bob Woodward, one of the most revered journalists of our time.Attendance is by reservation only. Premier Event: $175 per person. RSVP to 221-7777.THE HILLSBOROUGH COUNTY BAR FOUNDATION WISHES TOTHANK THE SPONSORS OF THE 2010 LAW & LIBERTY DINNERMAY 13, 2010GRAND HYATTTAMPA BAYCALL 813-221-7774TO BECOME A SPONSOR.MARQUIS SPONSORThe CentersPLATINUM SPONSORSchifino Lee AdvertisingSILVER SPONSORSAkerman SenterfittTECO EnergyStichter, Riedel, Blain & Prosser, P.A.Williams, Schifino, Mangione & Steady, P.A.BRONZE SPONSORSAllen Dell, P.A.American Momentum GroupCarey, O’Malley, Whitaker and Mueller, P.A.Carlton Fields, P.A.Fowler White BoggsGlenn, Rasmussen, Fogarty & Hooker, P.A.Hill Ward HendersonHome Banc, N.A.Kynes, Markman & Felman, P.A.McClain, Smoak & ChistoliniNavigant ConsultingSheila M. McDevittThe Bank of TampaWagner, Vaughan & McLaughlin, PAFEB 2010 / HCBA LAWYER 11

f r o m t h e c o u r t h o u s eChair: The Honorable Tom Barber, Circuit Court Judge, Thirteenth Judicial CircuitExchanging White Coatsfor Black RobesGuest WriterSumeeta Mazzarolo M.D.The Black Robe program affords physicians,medical students, and basic science facultyfrom the University of South Florida anopportunity to spend the day shadowinglocal judges.An 18-year-old male with a history of substanceabuse entered the room. “Your urine drug screenwas positive for methamphetamines,” he was told.The discussion continued as the implications of thisfinding were reviewed and the following questionswere posed, “Do you understand everything thatwas said? Do you require additional consultation?Do you have any questions?”The interesting aspect about this familiar dialoguewas that it did not take place between my patientand me in the privacy of my medical office, butinstead occurred between a defendant and a judgein a very busy courtroom. This scenario emphasizedhow much the medical and legal professions havein common and was just one of many things I hadthe privilege of observing through the “Black RobeProgram” at the Hillsborough County Courthouseon September 29, 2009.This unique program, now in its second year,was created by Dr. Steve Klasko (CEO of USFHealth and dean of the USF College of Medicine),Tampa lawyer Rhea Law, (chair of the USF Boardof Trustees), and Circuit Judge Gregory Holder.It affords physicians, medical students, and basicscience faculty from the University of South Floridaan opportunity to spend the day shadowing localjudges. Participants observe proceedings in alldivisions of the state court system includingthe Mental Health, Juvenile Delinquency, FamilyLaw, Dependency, Probate, Civil, and Criminaldivisions. The experience provides medicalprofessionals an intimate look at the judicialprocess and helps bridge the gap between themedical and legal professions.As a recent graduate from medical residency anda new USF faculty member, my personal experiencewas fascinating. I was able to witness firsthandthe similar issues that confront judges andphysicians. I empathized with the judgewho struggled with the direct and often profoundimpact his decisions had on an individual’s life.He shared with me that the law is not alwaysclear and sometimes making the right decisionis complicated and unpopular. This is a conflictthat many physicians can easily relate to.The similarities shared by our professionsextended beyond the judges to a few of theyoung lawyers I met. Several explained that theyprosecute or defend repeat offenders for differentcrimes, or different offenders for the same type ofcrime. They tried to maintain their enthusiasmfor each case no matter how mundane; however,it was the intriguing cases ultimately going totrial that especially excited these young lawyers.Our conversations were reminiscent of my daysin residency training. We too would find ourselvestreating the same patients admitted repeatedlywith the same diagnosis. Yet, it was the newand complicated cases that energized us byproviding an opportunity to put into practicethe skills we learned.Overall, the time I spent at the courthouse wasenlightening. It emphasized the values, experiences,and interests shared by the medical and legalprofessions. My hope is that we continue to buildon this relationship because by combining forces,I believe we can positively impact the health ofour community and ultimately benefit the publicwe serve.Author: Sumeeta Mazzarolo M.D., USF Collegeof Medicine12FEB 2010 / HCBA LAWYER

BAY AREA LEGAL SERVICESRAISED $30,000 TO BENEFIT FAMILIESOF DOMESTIC VIOLENCE.FEB 2010 / HCBA LAWYER 13

CHALLENGING INCONSISTENT JURY VERDICTSAppellate Practice SectionChairs: Randy Reder, Randall O. Reder, P.A., and Duane Daiker, Shumaker, Loop & Kendrick, LLPOne area where it iseasy to get trippedup is challenging aninconsistent juryverdict. Florida Rule of CivilProcedure 1.530 states: “A motionfor new trial or for rehearing shallbe served not later than 10 daysafter the return of the verdict ina jury action.” However, a motionclaiming the jury’s verdict isinconsistent must be made beforethe jury is discharged. The reasonis to resubmit the case to the juryso that it has an opportunity tocorrect the inconsistency. E.g.,Fla. Dept of Transp. v. Stewart,844 So. 2d 773 (Fla. 4th DCA 2003);Cocca v. Smith, 821 So. 2d 328(Fla. 2d DCA 2002).There are exceptions to thisrule of law. In the civil context,one can raise the inconsistencyargument after the jury has beendischarged where the jury’s verdictis inconsistentwith a findingof factestablishedby an answerto a juryinterrogatory.See e.g., Lucasv. Orchid IslandProp., Inc.,982 So. 2d 758(Fla. 4th DCA2008); NissanMotor Co. v.Alvarez, 891So. 2d 4 (Fla.4th DCA 2004).In the criminalcontext, thereis an exceptionreferred toas a “true”inconsistentverdict wherean acquittal onone count negates a necessaryelement for conviction on anothercount. Brown v. State, 959 So. 2d218 (Fla. 2007); Flores v. State, 974So. 2d 556 (Fla. 5th DCA 2008).Another possible way aroundthis rule of law is to argue thatthe jury verdict is inadequate andcontrary to the manifest weight ofthe evidence. However, the DistrictCourts of Appeal are divided asThe District Courtsof Appeal are dividedas to whether theinadequacy of averdict must beraised before thejury is discharged.to whether theinadequacy of averdict must beraised before thejury is discharged.Compare e.g.,Ellender v. Bricker,967 So. 2d 1088(Fla. 2d DCA 2007);Deklyen v. TruckersWorld, Inc., 867 So.2d 1264 (Fla. 5thDCA 2004); Cowen v.Thornton, 621 So. 2d684, 687 (Fla. 2d DCA1993)(holding issuecan be raised afterjury is discharged)with e.g., Latner v.Preusler & Associates,Inc., 11 So. 3d 388(Fla. 5th DCA 2009);Stewart, 844 So. 2d773 (holding issuemust be raised beforejury is discharged).Trial counsel should thereforebe aware there is a grey areaas to whether a jury verdict isinconsistent or inadequate andwhether the time for objecting isbefore the jury is discharged or tendays after the verdict is entered.Author: Randy Reder, Randall O.Reder, P.A.Are you interested in becoming an HCBA Officeror Director, or YLD Board Member?Regular and Honorary members of the HCBA may file written nominationsto become a candidate for President-Elect, or for the Board of Directorsof the Hillsborough County Bar Association.Deadline for submitting nominations is April 12, 2010 at 5 pm.Please send statement of intent to: HCBA Secretary, 1610 N. Tampa St., Tampa, FL 33602.If you have any questions, please call Connie Pruitt,HCBA Executive Director at 813.221-7777.14FEB 2010 / HCBA LAWYER

FEB 2010 / HCBA LAWYER 15

REFLECTION ON THE IMPORTANCE OF VOLUNTEERINGCommunity Services CommitteeChairs:Stacy Estes, Mandelbaum,Fitzsimmons, andHewitt,P.A.,and LoriVella,Butler PappasWeihmullerKatzCraig,LLPOn November 21, 2009, the Community Services Committeeand members of the HCBA participated in the22nd Annual Hillsborough River and Waterways Cleanuppresented by the Mayor’s Beautification Program.Every year, the City ofTampa, the Mayor’sBeautification Program,and thousands ofvolunteers join together to gatherlitter, debris, and invasive plantsfrom the shores of the HillsboroughRiver and along Tampa waterways.On November 21, 2009, membersfrom the Tampa Bay Inn of Court,including Honorable John N. Conradand the Honorable E. LamarBattles, as well as members of thecommunity services committeeand their families had a fun daycleaning up Ballast Point Park inTampa. The Community ServiceCommittee wishes to thank thefollowing individuals and groupsfor their support:• Tampa Bay Inn of Court• The Honorable John Conradand family• The Honorable E. Lamar Battles• Rebecca Pettit, HillsboroughCounty State Attorney’s Office• Scott Borders and family,Morgan & Morgan• Joseph Towne,Stetson Law Student• Paul Johnson, Paul Johnson Law• Nancy Lugo and family,Bay Area Legal Services• Sam Hijab• Matthew Thatcher and family,The Solomon Law Group, P.A.• Darshna Patel, The SolomonLaw Group, P.A.• Kelly White and family,Butler Pappas• Jason Yates, PetrotechSoutheast Inc.• Stacy Estes, Mandelbaum,Fitzsimmons & Hewitt, P.A.,and Lori Vella, Butler PappasAuthors: Stacy A. Estes,Mandelbaum, Fitzsimmons &Hewitt, P.A., and Lori A. Vella,Butler Pappas, LLPMembers of HCBA cleanup Ballast Park as part of River Cleanup.16FEB 2010 / HCBA LAWYER

Waterways Clean-UpHCBA Members with Mayor Iorio.Judge Conrad cleaning up the shoreline.Paul Johnson and Judge Lamar Battles.FEB 2010 / HCBA LAWYER 17

UNDERSTANDING THE DAVIS BACON ACTConstruction Law SectionChairs: John Lamoureux, Carlton Fields, P.A., and Tim Woodward, Forizs & Dogali, P.L.complications,disputes, and delaysin payment duringthe course of apublic project. Onesuch statute is theDavis Bacon Act. 1The Davis BaconAct (the “DBA”)applies to anycontract over $2,000to which the UnitedStates is a party forthe construction,alteration, or repairof public buildingsor public works. 2Under the DBA,contractors or theirsubcontractors arerequired to payworkers employeddirectly on the siteof the work no less than the locallyprevailing wages and fringebenefits paid on projects of asimilar character. Consequently,the contractor needs to becognizant not only of what typeof construction the governmentsolicitation callsfor (i.e. building,heavy, highway,or residential),but also of thecorrespondingwage determinationlistings publishedby the Wage andHour Division of theU.S. Department ofLabor for each typeof construction.Contractors alsoneed to be mindfulof what percentageof the work inthe governmentsolicitation willactually besubject to DBArequirements.The scope of theDBA is limited to only constructionactivity performed on the site ofthe work. Generally, constructionactivity does not encompassmanufacturing, supplying materials,With the instabilitysurrounding privateThe Davis Bacon Actsector constructionprojects due to theapplies tocurrent economy, contractors arefederal contractssupplementing their private sectorprincipally involvingbusiness by pursuing federalcontracts. However, this foray intoconstruction ofthe public arena is not without itspublic buildings.own obstacles and hurdles, manyof which contractors previouslyoperating exclusively in the privatesector may not be familiar with. Theheavy regulation of federal contractsrequires contractors to understandthe interplay between an array ofstatutes and regulations not onlyfor one’s bid to be responsivebut also to avoid unnecessary Continued on page 19BRiggs P. STAHL, CPA, ABV, CBAdiane womack, CPA, ABV, cff, cfeMarie-Eve Girard, CPABusiness ValuationsLitigation Support Services:• Marital & Family• Commercial Damages• Eminent DomainINCOME Tax ServicesFinancial Planning8626 N. Himes AvenueTampa, FL 33614-1616(813) 936-0313 • Fax (813) 936-0939 • www.stahlconsulting.com18FEB 2010 / HCBA LAWYER

UNDERSTANDING THE DAVIS BACON ACTConstruction Law SectionContinued from page 18or performing service / maintenancework, 3 and the “site of the work”is limited to the geographicalconfines of the constructionjobsite. 4 Therefore, a properaccounting of which employees’wage rates will be subject tothe DBA is needed to maximizethe competitiveness andresponsiveness of one’s bid.Additionally, contractors needto be aware of potential dualcoverage issues with the DBA. 5For example, the DBA will applyto construction work performedunder a non-construction servicecontract otherwise regulated bythe McNamara-O’Hara ServiceContract Act 6 if the contractrequires a substantial andsegregable amount ofconstruction, repair, painting,alteration, or renovation. 7Failure on behalf of thecontractor to comply with therequirements of the DBA will resultin the withholding of portionsof contract payments and evencomplete suspension of paymentsuntil wage underpayment issuesare resolved. The requirements ofthe DBA are enforced through aseries of compliance checks andinvestigations during the courseof the project, primarily in theform of employee interviews,on-site inspections, and payrollreviews. 8 Consequently, in orderfor bids to be responsive and toavoid later disputes over and delaysin payment, contractors venturinginto the public arena need to befamiliar with the requirements ofthe DBA and the government’smethods of enforcement.140 U.S.C.A. § 3141 et seq.240 U.S.C.A. § 3142(a).3Building & Constr. Trades Dep’t,AFL-CIO v. Department of Labor WageAppeals Board, 932 F.2d 985 (D.C. Cir.1991), rev’g 747 F. Supp. 26 (D.D.C. 1990).4Ball, Ball, and Brossamer, Inc.v. Reich, 24 F.3d 1447 (D.C. Cir. 1994)rev’g Ball, Ball, and Brossamer, Inc.v. Martin, Sec’y of Labor, 800 F. Supp.967 (D.D.C. 1992).5FAR 22.402(b).641 U.S.C.A. § 351‘ 7 FAR 22.402(b)(1).8FAR 22.406-7.Author:Rhys Leonard,Trenam KemkerFEB 2010 / HCBA LAWYER 19

WINNING THE ABUSIVE BANKRUPTCY SERIAL FILINGS GAMECorporate Counsel SectionChairs: Jeanetta Brown, Walter Investment Management Corp., and Courtney Cox, Wellcare Health Plans Inc.It is the ninth inning and bothteams have led throughoutthis most interesting game,but the end is near—one teamwill eventually prevail. Similar to along and drawn-out baseball game,the creditor is often held at bayin seeking and obtaining its relieffrom the automatic stay under 11U.S.C. § 362. Fortunately, 11 U.S.C.§ 362(c)(3) provides the muchneeded relief pitcher to closeoutthe inning and the game. Justas the burden to prevail shifts inthe baseball game, so too does itshift in the abusive filings game.Corporate counsel and creditorsshould be aware of the keycomponents of § 362 whenconfronted with serial filers.Specifically, 11 U.S.C. § 362(c)(3)(C)(i) covering individual filerswhose case was pending anddismissed within 1 year of thenew bankruptcypetition filingdate and11 U.S.C.§ 362(c)(4)(A)(i)dealing with2 or morecases pendingand dismissedwithin 1 yearof the newfiling date.Section 362(c)(3) provides(A) that the stayterminates onthe 30th dayafter the filingof the later caseand (B) thatthe Court mayextend the stayin particularcases as to anyor all creditorsafter noticeand a hearingis completedbefore theexpiration of the30-day period only if the partyin-interestproves that the filingof the later case is in good faith.Pursuant to 11 U.S.C. § 362(c)(3)(C)(i)(II)(cc) a presumption applies“Those of us luckyenough to be partof the game havea tremendousresponsibility—we’recharged with givingback to the game allthe good things thegame has given us.”– Sparky Andersonthat the case hasnot been filed ingood faith if, interalia, the debtor failedto perform the termsof a confirmedplan. However, thepresumption maybe rebutted byclear and convincingevidence providinga change ofcircumstance fromthe prior case. 1Accordingly, itis the debtor’sburden to file amotion requestingthe automatic stayto continue, providenotice of the same,and a hearingmust be conductedwithin 30 days ofthe petition daterequiring the debtorto prove by clear andconvincing evidencethat the new casefiling was filedin good faith. Otherwise theautomatic stay is no longer inplace. 2 However, be aware that theContinued on page 2120FEB 2010 / HCBA LAWYER

WINNING THE ABUSIVE BANKRUPTCY SERIAL FILINGS GAMECorporate Counsel SectionContinued from page 20Court may still invoke its awesome11 U.S.C. § 105(a) equitable powersto still impose the stay. 3Section 362(c)(4)(A)(i) provides:[I]f a single or joint case is filedby or against a debtor who is anindividual [] and if 2 or moresingle or joint cases of the debtorwere pending within the previousyear but were dismissed the stayshall not go into effect upon thefiling of the later case; and (ii)on request of a party in interest,the court shall promptly enter anorder confirming that no stay isin effect . . .Under this section the automaticstay does not go into effect uponthe filing of the bankruptcy petition.However, pursuant to § 362(c)(4)(A)(ii), a party in interest (includingthe debtor) may make a requestwithin 30 days to impose thestay. Moreover, as in the priorsection, the filing is presumedto be in bad faith, but thatpresumption may be rebutted byclear and convincing evidence. 4Although the statute is clearthat the automatic stay doesnot go into effect, it is difficult toovercome a last minute Suggestionof Bankruptcy filed in State Court.Therefore, it is imperative to quicklyuse subsection (ii) and promptlyobtain an order confirming that nostay is in effect from the BankruptcyCourt for filing in any pendingState Court action. Fortunately, thepre-BAPCPA5 serial filing gameis now on an even playing field forall participants provided you areaware of the equipment needed toplay the game.1See § 362(c)(3)(C).2See In re Franzese, 2007 Bankr.Lexis 2490 (Bankr. S.D. Fla. 2007)(citingcases around the country supportingthe strict 30-day requirement).3Id.(relying on In re Weinraub, 361 B.R.586,589 (Bankr. S.D. Fla. 2007)(citing toUnited States v. Sanford, 979 F.2d. 1511,1514 (11th Cir. 1992) and In re Whitaker,341 B.R. 336 (Bankr. S.D. Ga. 2006)).4See § 362(c)(4)(D)5Bankruptcy Abuse Prevention andConsumer ProtectionAct of 2005 (Pub. L.109-8)Author:Victor H. Veschio,Veschio LawGroup, LLCFEB 2010 / HCBA LAWYER 21

THIRD ANNUAL CENTRAL FLORIDA DIVERSITY PICNIC SET FOR FEBRUARY 27. 2010Diversity CommitteeChairs: Dawn Siler-Nixon, Ford & Harrison LLP; Tara Rao, The Rao Law Firm, PL, and Joanna Garcia, Carlton Fields, P.A.The Hillsborough CountyBar Association DiversityCommittee, along withthe Florida Bar YoungLawyers Division, the GeorgeEdgecomb Bar Association, theHillsborough Association for WomenLawyers, the Sarasota County BarAssociation Diversity Committee,the South Asian Bar Associationof Florida - Tampa Chapter, andthe Tampa Bay Hispanic BarAssociation, will host the ThirdAnnual Central Florida DiversityPicnic on Saturday, February 27,2010, at the Downtown Campusof Stetson University, College ofLaw beginning at 1 p.m.The impetus behind the ideaof hosting a diversity picnic inHillsborough County is the verysuccessful and festive MinorityMentoring Picnic held in SouthFlorida for the last five years. LikeSouth Florida’s picnic, all minoritylaw school students from all lawschools in Florida will be invitedto attend the Central FloridaDiversity Picnic with subsidiesprovided fortransportation.The picnicprovides a greatvenue for lawstudents ofdivergentbackgroundsto minglewith judges,lawyers, as wellas representatives fromnumerous state andlocal voluntary barassociations, law firms,governmental agencies,and legal aid services.Students who haveattended the picnicin the past have madesignificant mentoringconnections withattorneys and membersof Central Florida’sjudiciary. The picnic’sultimate goal, whichis embraced by all thepicnic’s sponsoring barassociations, is to foster Diversityin the legal profession. Indeed,the mission statements of all ofthe sponsoring entities make clearthat the purpose and reason forthe Central Florida Diversity Picnicis to make the profession andjudiciary accessible to EVERYONE— without regard to race, colorethnicity, gender, sexual orientation,nationality, age, disability, andmarital or parental status.The festivitiesbegin at 1:00 p.m. —so come hungrybecause we willfeature a variety ofdelicious food anddrinks. The picnicwill also featurelive entertainment,activities, and gamesfor the whole family!We would likesay a special “thankyou” to the FloridaBar Young LawyersDivision for onceagain graciouslysponsoring theCentral FloridaDiversity Picnic ina major way thisyear. They havepledged a $5,000donation to assistwith the costs ofpicnic! If you or yourfirm is interestedin sponsoring thisevent or if you would like to donateor volunteer at this event, pleasecontact any of the HCBA DiversityCommittee Chairpersons, JoannaGarcia (jgarcia@carltonfields.com),Tara Rao (traolaw@gmail.com),or Dawn Siler-Nixon (DNixon@fordharrison.com). We hope tosee you on February 27, 2010!The picnic’sultimate goal,which isembraced by allthe picnic'ssponsoring barassociations,is to fosterDiversity in thelegal profession.Author: Joanna Garcia, CarltonFields, PADON’T MISS THE THIRD ANNUALCENTRAL FLORIDA DIVERSITY PICNICSATURDAY AT 1:00 P.M.FEBRUARY 27, 2010Downtown CampusStetson University College of Law.22FEB 2010 / 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 Appeals LakelandAddison & Howard, P.A.Allen Dell, P.A.Almerico & MooneyAnsa Assuncao, LLPAnthony & Partners, LLCAnthony J. LaSpada P.A.Austin, Ley, Roe & Patsko, P.A.Baccarella & Baccarella, P.A.Banker Lopez Gassler, P.A.Barker, Rodems & Cook, P.A.Barnett, Bolt, Kirkwood, Long and McBride, PABay Area Legal Services Plant CityBay Area Legal Services WimaumaBeltz and RuthBivins & Hemenway, P.A.Bradford & BradfordBrannock & Humphries, PABrennan, Holden & Kavouklis, P.A.Attorneys at LawBrewer Perrotti Martinez Monfort, P.A.Buell & Elligett, P.A.Bush RossButler Pappas Weihmuller Katz Craig, LLPCaglianone, Miller & Anthony, P.A.Carlton Fields, P.A.Carman & Corn, P.A.Cedola and Vincent PLCheeseman & Phillips, P.A.Christopher N. Ligori, P.A.City of TampaClark & Martino, P.A.Clerk of the Circuit Court’s OfficeCordell & Cordell, P.C.County Attorney’s OfficeCristal Law GroupCruser Mitchell Nicholas & Bell, LLPDanahy & Murray, P.A.Davidson McWhirter, P.A.Davis & Harmon, 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.Fuentes & Kreischer, P.A.Fuller Holsonback & Malloy, P.A.Gallagher Keenan, P.A.Genders ◆ Alvarez, P.A.George & Titus, P.A.Gibbons, Tucker, Miller, Whatley, & Stein, P.A.Givens Law GroupGlenn Rasmussen Fogarty & Hooker, PAGuemmer & RittHancock & Hancock, 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.Jorgensen & Ozyjowski, P.A.Joryn Jenkins & AssociatesJung & Sisco, P.A.Kadyk Delesie & Espat PA Cap TrustKeith P. Ligori, P.A.Keys & Coakley, P.L.Knopik Moore DeskinsKunkel, Miller & Hament, P.A.Kynes, Markman & Felman, PALaw Office of Donald P. Decort, P.A.Law Office of Kevin M. GilhoolLaw Office of Patricia Gomez, P.A.Law Office of Robert M. GellerLaw Offices of Butler & Boyd, P.A.Law Offices of Darrin T. Mish, P.A.Law Offices of Emma Hemness, P.A.Law Offices of Jacob I. ReiberLeon & Berg, P.A.Levine, Hirsch, Segall, Mackenzie &Friedsam, P.A.Lopez, Kelly & Bible, P.A.Luks, Santaniello, Perez, Petrillo & GoldLynette Silon-Laguna, P.A.Mac A. Greco, Jr., P.A.Manson Law Group, P.A.Mark Bentley, P.A.Martinez, Odom Law GroupMary Beth Corn, P.A.McCumber, Daniels, Buntz, Hartig & Puig, PAMike Murburg, P.A.Morgenstern & Herd, PAOlder & Lundy, Attorneys at LawPhillip A. Baumann, P.A.ReliaQuest Legal ServicesResnick & Serrano, P.A.Richard W. Driscoll, P.A.Rieth & Ritchie, P.A.Saady & Saxe, P.A.Scarritt Law Group, P.A.Schiff Law GroupSchropp Law FirmSessions Fishman Nathan & Israel, LLPShook, Hardy & Bacon, LLPSisco LawSparkman & Sparkman, P.A.Spector Gadon & RosenStetson University College of LawSykes Enterprises, Inc.Terrana Perez & Salgado, P.A.The Bowes Law GroupThe Criminal Defense Group, P.A.The Davis Law Group, P.A.The Diecidue Law Firm, P.A.The Fernandez FirmThe Foster Law Group, P.A.The Plante Law Group, PLCThe Yerrid Law FirmThomas, LoCicero & Barlow PLThompson & BrooksThompson, Sizemore, Gonzalez & Hearing, P.A.Thorn Whittington,LLPThorn | Lawrence, P.L.Tison Law GroupTrentalange & Kelley, P.A.Trombley & Hanes, P.A.U.S. District CourtUnited States Bankruptcy CourtWagner, Vaughan & McLaughlinWalters Levine Klingensmith & Thomison, P.AWalton Lantaff Schroeder & Carson LLPWenzel & Fenton, P.A.Whitney Bardi Mediation Group, Inc.Wilson Law Group, P.A.Williams Schifino Mangione & Steady PAFOR YOUR FIRM TO BE LISTED HERE, CONTACT LISA CARRICK, LISA@HILLSBAR.COMFEB 2010 / HCBA LAWYER 23

THE PINNACLE LESSON ON EXPERTS’ FEES AND COSTSEminent Domain SectionChair: Lewis Garlisi, Law Office of Lewis E. GarlisiIn, Pinnacle Floor Covering, Inc.v. Department of Transportation,16 So. 3d 919 (Fla. 2d DCA,2009), the Second Districtaffirmed the denial of expertwitness’ fees and costs to abusiness owner where a jury foundno damages to the business as aresult of the FDOT condemnation.Prior to the taking, Pinnacle’sbusiness had been completelydestroyed by fire. Pinnacle neverrebuilt the business, claiming theywould have but for the threat ofcondemnation from the impendingroadway project. Pinnacle settledtheir real estate interest and tookthe business damage claim to trial.The jury found that the businesswas not destroyed by the threat ofcondemnation and awarded nodamages. Pinnacle then moved forexperts’ fees and costs. The trialcourt denied Pinnacle’s motion,citing to Section 73.091, FloridaStatute, requiring petitioner to payfees and costs, “… including, butnot limited to, reasonable appraisalfees, and, when business damagesare compensable, a reasonableaccount’s fee…”.On appeal, Pinnacle argued thatbusiness damages were in fact“compensable” (even if not actually“compensated” by the jury’sverdict) since theywere successful inpresenting a closequestion for juryconsideration.The Second Districtrejected thisargument stating,“Proof sufficientto create a juryquestion is notenough to makethe damages‘compensable’ forpurposes of thestatute.” Pinnacle,16 So. 3d at 921.It appears thisholding makes nodistinction betweenclaims that may belegally insufficientor predictably noncompensableandlegitimate claimsthat raise a question for juryconsideration. In doing so, theSecond District appears to retractfrom its holding in Hodges v.Department of Transportation,323 So. 2d 275 (Fla. 2d DCA,1975) (decided prior to the 1987amendment of Section 73.091; seeDepartment of Transportation v.Jack’s Quick Cash, 748 So. 2d 1049(Fla. 5th DCA, 1999), for a moredetailed analysis on this point).In the eminent domain world,the Pinnacle decision can beconsidered harsh. Businessdamages being statutory innature are not covered by thesame constitutional protectionsthat guarantee reasonable feesand costs for the taking of realestate. This leaves businessUnder Pinnacle, a$1.00 verdict couldjustify payment ofall statutory costsand fees while a zeroverdict would totallyprohibit an award.owners vulnerablein cases wherethey pursuelegitimate claimsthat end up beingunsuccessfulbefore a jury. Anowner of both theland and businessmay be weary ofsettling their realestate interestsseparately. UnderPinnacle, a $1.00verdict couldjustify payment ofall statutory costsand fees while azero verdict wouldtotally prohibitan award. Thisall-or-nothingapproach cancause a dilemmafor the businessowner and the attorney. Withsubstantial sums of Florida’stransportation monies recentlybeing directed away from newroadway projects, concernsare heightened for business inan already troubled economy.In this market, the unwittingpractitioner may be temptedto take more risk in evaluatingpotential cases. Nonetheless, inlight of Pinnacle, the eminentdomain practitioner must beespecially careful in decidingwhether to handle a businessdamage claim, when to bring inan expert, and how to advise thepotential client.Author: Lewis Garlisi, Law Officeof Lewis E. GarlisiWILL YOU RUN THE HCBA 5K? MARCH 20, 5 PM. GO TO WWW.HILLLSBAR.COM TO REGISTER.24FEB 2010 / HCBA LAWYER

featureLEADERSFraser Himes Fraser HimesA Tampa native, John Fraser Himes attended Phillips Academyin Andover, Massachusetts, before going to college at Vanderbilt.After a detour to Devon, England to attend law school at Universityof Exeter, Fraser returned south, graduating from the University ofFlorida College of Law in 1971.Fraser returned to Tampa to work as an assistant county solicitorand then assistant state attorney with Judge E. J. Salcines. Fraserwent into private practice for six months with his father’s firmbefore opening his own office. Fraser has primarily practiced in asolo or small firm setting, except for his fifteen-year stint at Holland &Knight, where John Germany, a former partner of his father’s, works.In the late 1970s, Fraser was representing clients in criminal andgeneral civil litigation when he received a 7 p.m. phone call oneevening from a wealthy potential client. The client had been tryingunsuccessfully for over two weeks to schedule a conference withsome of the top divorce lawyers in town. Fraser offered to meet thatnight or the next morning as the client preferred. The client hiredBelieving that alawyer best serveshis client and theclient’s childrenwhen hostilitiescan be minimized,Fraser finds theCollaborative Lawprocess well suitedtoward those goals.Continued on page 26FEB 2010 / HCBA LAWYER 25

Continued from page 25Fraser, and this turned out to be a career-changing development. Fraserimmersed himself in the field, eventually becoming board certified infamily law, and has practiced exclusively in that field since.Believing that a lawyer best serves his client and the client’s childrenwhen hostilities can be minimized, Fraser finds the Collaborative Lawprocess well suited toward those goals. He enjoys working with otherattorneys to partner in that process for the benefit of both clients.Early in his career Fraser became involved in the HillsboroughCounty Bar Association, editing the magazine, being elected tothe board in 1975, and serving as president in 1980-81. His workin Florida Bar section activities led to his initiating both the HCBAYoung Lawyers and the Family Law Sections.Since specializing in family law, Fraser has been active in Floridaand local family law committees, including serving on the Board ofGovernors and chairing the Florida Bar Family Law Rules Committee.He has lectured and written on family law topics, and has beenrecognized as a leading lawyer in the field by numerous publications.In his time away from the office Fraser enjoys working out at thegym, pilates, and trying to beat his wife at pool. Maria and Fraserhave been married 28 years and are avid travelers. They escape thesummer heat by going to Victoria, on Vancouver Island in BritishColumbia, where Fraser is able to work while he relaxes.Maria observes that Fraser’s care for others and his community isreflected in what he does for others; as she puts it, he gives his all.These sentiments are echoed by those who work with Fraser.Christine Hearn started working with Fraser in 1995 and is nowhis law partner. She has always considered him her primary mentor,observing he gave her many great opportunities. He refuses to takean unreasonable position, and reasons with clients when the situationContinued on page 27Photos (Top to bottom): Lake Louise after train ride to Banff from Vancouver;Hiking in Torres del Paene, Chile in 2008; Aboard a boat in Argentina in 2008;Father and son in Victoria, British Columbia 2008 where they spend summers.26FEB 2010 / HCBA LAWYER

Continued from page 26warrants. He loves life, is not all about work, andenjoys what he does.Tracy Reese, Fraser’s legal assistant and officemanager for 12 years, observes Fraser remainslevel-headed despite stressful situations, remainingprofessional and reassuring his clients and staff.Active in charity work, Fraser has served on theEaster Seals board for ten years, and is a trusteeof the Florida Museum of Photographic Arts. JoyMurray has served on the Easter Seals Board withFraser and she and her husband, Mike, are greatpersonal friends with him and Maria. Joy tells howat an Easter Seals event her husband and Fraserwere both bidding on a quilt - and then learned theyboth wanted it for the same reason: to give to anEaster Seals client. She points to this as illustratinghow Fraser does many things to help others, butpeople would not know because he is so humble.John Germany has known Fraser since he was aboy, having practiced law with Fraser’s father, andlater with Fraser at Holland & Knight. He observesFraser is the third generation of a Tampa lawyerfamily, noting Fraser’s grandfather was an attorneyand prominent state senator from Tampa. He speakshighly of Fraser’s expertise in family law, and notesFraser has a wonderful sense of organization which,among other things, allows him to go to Victoriaduring part of the summer.Bill McBride and Fraser started law schooltogether in 1967 and have been friends since.Bill observes Fraser was an innovative presidentwho worked closely with the judiciary and wassupportive of the courts working well so that thepublic was timely served. Fraser was well liked bythe judiciary and the members of the private bar.His meetings were fun, and Fraser was light whennecessary, but serious and inspiring when needed.His was one of the really fine years as a barpresident, and lawyers as well as the citizens ofHillsborough County were well served by Fraser.Through Fraser’s leadership,lawyers in our community havebenefitted, and continue to today,as do his colleagues, clients, familyand friends.Author: Raymond T. (Tom) Elligett, Jr.,Buell & Elligett, P.A.Citrus ParkSurgery CenterTechnology & CompassionCombined to Create aSuperior Patient Care Facilitywww.cpsxc.com813-964-14406326 Gunn Highway . Tampa, FL 33625The Citrus Park Surgery Center (CPSC) is a fully licensed, state-of-the art,multi-specialty surgery facility located in Northwest Hillsborough County,specializing in minimally invasive out-patient surgery.Our facility specializes in the treatmentof spine and orthopedic injuries andgladly welcomes patients withLetters of Protection.FEB 2010 / HCBA LAWYER 27

featureTraffic Finesand BankruptcyA common question by many consumer debtorsis whether they can discharge the traffic fines theyhave been unable to pay, in addition to their creditcard, medical bill, and other debts. The answer ina Chapter 7 case is straight-forward – No. However,depending on the amount of the fines and whetherthere are additional reasons to file a Chapter 13bankruptcy, a debtor may be able to dischargetraffic fines through a Chapter 13 Plan.11 U.S.C. § 523(a)(7) provides that “a dischargeunder section 727, 1141, 1228(a), or 1328(b) of thistitle does not discharge an individual from any debt—to the extent such debt is for a fine, penalty,or forfeiture payable to and for the benefit of agovernmental unit, and is not compensation foractual pecuniary loss, other than a tax penalty.”Accordingly, in a Chapter 7 bankruptcy case,the traffic fines are non-dischargeable.However, generally speaking, in a Chapter13 certain fines are still dischargeable. Under§ 1328(a)(3) a Chapter 13 debtor who completesall payments under the Plan receives a dischargeContinued on page 2928FEB 2010 / HCBA LAWYER

The key is whether the parkingor traffic violations are deemed“crimes” under the state lawwhere the offenses occurred.Continued from page 28“of all debts provided for by the plan or disallowedunder section 502 of this title, except any debt—for restitution, or a criminal fine, included in asentence on the debtor’s conviction of a crime.”(Emphasis added). Thus, the key is whether theparking or traffic violations are deemed “crimes”under the state law where the offenses occurred.For example, in Florida, criminal trafficoffenses include DUI, reckless driving, leavingthe scene of an accident, and knowingly drivingwith a suspended license. In contrast, civil trafficoffenses include speeding, running a red lightor stop sign, illegal U-turns, failure to yield toemergency vehicles, and non-moving violations.If the fines are non-criminal and thereforedischargeable, the debts are pooled together withother unsecured creditors and paid a percentageof the total claim amount as provided for in thedebtor’s Plan. It is important to note that evennon-dischargeable criminal fines or penalties maystill be paid through a Chapter 13 Plan; howeverthe balance remaining at the conclusion of thePlan will not be discharged. The advantage ofpaying a portion of the debt through the Chapter13 Plan is that the automatic stay should stopcollection efforts against the debtor such asrevocation of their driver’s license or incarcerationdue to non-payment.Of course, a debtor may choose to file a Chapter7 knowing certain debts are not discharged anddeal with those after the bankruptcy. Dependingon the amount of the fine and whether there areany additional reasons to consider a Chapter 13bankruptcy, practically speaking, a Chapter 7may still be thebest alternative.Authors:Camille J. Iurillo, andSabrina C. Beavens,Iurillo & Associates, P.A.FEB 2010 / HCBA LAWYER 29

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