1. law, govt and politics

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2015
Voicemail Line: (772) 220-8018 E-Mail: [email protected] Website: www.martincountybar.org
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President’s Message (Pg. 1)
Buchanan Investiture (Pg. 3)
CLE Luncheon Meeting (Pg. 4, 40)
Canoe Trip (Pg. 6)
Griffin/Heisey Investitures (Pg. 7)
“Maleficent” Movie in Park (Pg. 7)
2015 Banquet Info. (Pg. 7)
JNC Nominations (Pg. 15)
Cheers/Member Benefits (Pg. 16)
4DCA Anniversary (Pg. 23)
2015 Legal Directory (Pg. 20)
“We The People” (Pg. 21)
W. R. “Bill” Scott Park (Pg. 27)
TD Bank “Free $” (Pg. 29)
Hon. Rosenberg Welcome (Pg. 37)
Jobs, Links & Legislation (Pg. 38)
Calendar of Events (Pg. 39)
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LOOKING 360°
I hope that everyone had a wonderful holiday season
and that you are all ready to gear up for a new year of
adventures! While some people really go all out with the
celebrations for New Year, my family generally spends a
low-key night at home. We are lucky if we make it to see
the ball drop; I feel like I can go to sleep once I have seen
fireworks from anywhere, Australia included.
Law & Bar Related Committee Reports:
ADR (Pg. 25)
Admiralty (Pg. 12)
Bankruptcy (Pg. 35)
Employment & Labor (Pg. 15)
FAWL (Pg. 19)
Foreclosure (Pg. 32)
Justice Teaching (Pg. 23)
Lady Lawyer (Pg. 23)
Law Library (Pg. 28)
Paralegal (Pg. 31)
Pro Bono (Pg. 26)
Professionalism (Pg. 14)
Real Property (Pg. 9)
Probate, Trust & Guard. (Pg. 21)
Tennis (Pg. 36)
Trial Law (Pg. 18)
Scholarship (Pg. 29)
Small & Solo Practice (Pg. 19)
Social Committee (Pg. 6)
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Published monthly, excluding July, by
the Martin County Bar Association as a
service to its membership.
If you have an article, opinion, news
or other information for publication
in the SideBar, please call Michelle
Katzman at (772) 220-8018 or email
information to:
[email protected]
The due date for all advertisements,
articles and announcements is the 1st
of the month preceding publication.
Based upon my online research regarding the history of “New Year,” I
discovered that January 1 for the New Year is a relatively new phenomenon.1
The Mesopotamians celebrated the New Year around the vernal equinox in
mid-March. The Egyptians, Phoenicians, and Persians started their New
Year with the Fall Equinox, and the Greeks celebrated the Winter Solstice.
In the early Roman calendar, March 1 represented the New Year; think about
the names of our months (Septem is Latin for seven, Octo is eight, Novem
is nine and Decem is ten). The first New Year celebrated on January 1
came in Rome in 153 B.C., because that was the beginning of the Civil
Year, and was the month that marked the one-year tenure of the two highest
officials in the Roman Republic. However, most of the population continued
to celebrate on March 1.
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1
“A History of the New Year”, Infoplease.com; “New Year’s Day”, Wikipedia
MCBA 2014-2015 E
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President:
Jennifer Alcorta Waters
Treasurer:
Mark Miller
Immediate Past President:
George W. Bush, Jr.
Vice President:
Chad C. Hastings
Secretary:
Elizabeth Hunter
Executive Director:
Michelle D. Katzman
Voicemail Line: (772) 220-8018 E-Mail: [email protected] Website: www.martincountybar.org
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Continued From Previous Page . . .
In 45 or 46 B.C., Julius Caesar introduced a solar-based calendar, marking a vast improvement from
the older lunar system that had been used. The new calendar decreed that January 1 would be the
beginning of the year. The New Year was originally dedicated to Janus, the God of Gates, Doors
and Beginnings. January is named for this God. Not surprisingly, in medieval Europe, New Year’s
celebrations were considered pagan and un-Christian. In 567, the Council of Tours abolished January 1
as the New Year. People subsequently engaged in New Year celebrations on December 25, March 1
and March 25, the Feast of the Annunciation and Easter. In 1582, the Gregorian calendar again
made January 1 the New Year. Most Catholic countries quickly adopted the Gregorian calendar,
but many Protestant countries procrastinated adopting the reformed calendar. The January 1
date is known as the Circumcision Style, because this was the Feast of the Circumcision for Jesus,
considered to be the eighth day of Christ’s life, counting from December 25, when his birth is
celebrated. Great Britain did not adopt the new calendar until 1752. Therefore, our early forefathers
in the United States celebrated the New Year in March!
Other cultures and countries still use both the Gregorian and another calendar, and the alternative
calendar often brings additional New Year celebrations. For example, in Ethopia the new year is
celebrated on September 11 (or in leap year, on the 12th). The New Year marks the end of the rainy
season. In East Asia, the Cambodians celebrate three days for the Khmer New Year in April. They
go to the pagoda or play traditional games. The Chinese and Vietnamese New Year is celebrated
on the first day of the lunar calendar, usually between January 20 and February 20. The Thai people
celebrate on April 13 or 14, and they splash water on each other as a blessing. They capture the
water after it is poured over Buddha, and then they use the “blessed” water to give good fortune to
others. In Pembrokeshire, Wales, they celebrate January 13 as the New Year based upon the Julian
calendar. In Sri Lanka, they celebrate April 13 and 14 as the end of the harvest season.
However you celebrate, have a very wonderful time! I will be sleeping peacefully when you are all
watching the fireworks!
Sincerely,
erely,
Jennifer
f Alcorta
Al
Waters,
W
2014-2015
2014 201 MCBA
MCB President
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2015
By Special Invitation
The Bar Associations of the 19th Circuit
Cordially Invite You to the
Investiture of
Laurie E. Buchanan
Martin County Courthouse
100 East Ocean Boulevard
(Harper Courtroom)
Stuart, Florida 34994
Friday, January 16, 2015
4:00 p.m.
A reception will follow immediately after
for Cocktails and Hors d’oeuvres
at the
Historic Courthouse Cultural Center
80 East Ocean Boulevard in Stuart
Reception sponsored by:
Crary Buchanan, P.A.
&
Lesser, Lesser, Landy & Smith, P.L.L.C.
RSVP on or before January 7, 2015 to
[email protected]
or by calling 772-220-8018
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2015
MCBA CLE Luncheon Meeting
January 16, 2015
On Friday, January 16, 2015, the Executive Board of the MCBA invites its
members, prospective members, and any guests to join us for our monthly
luncheon meeting at the Kane Center in Stuart at 11:45 a.m. We look forward
to an insider’s perspective from our guest speaker, Kevin H. Winters, Assistant
Inspector General for Investigations within NASA’s Office of Inspector General.
Inspector Winters is responsible for supervising domestic and international
investigations relating to criminal or administrative misconduct that affects NASA.
He has managed NASA OIG’s investigations program since 2005, where his
Kevin H. Winters investigations, in conjunction with the Department of Justice, yielded over $600
million in recoveries and a host of criminal, civil, and administrative actions.
Originally from Harrisburg, Pennsylvania, Mr. Winters attended the University of Louisville on a Navy
ROTC scholarship and was commissioned as a Marine Corps officer. His initial service was as an
armor officer with 2d Tank Battalion, 2d Marine Division. He was then selected to attend law school
on the Funded Law Education Program. After graduating from law school with honors, he then served
in a variety of Marine Corps legal billets in both the United States and abroad. An Army War College
graduate, Mr. Winters also had a tour as a battalion commander at Parris Island, South Carolina,
where his responsibilities included close combat and water survival training and oversight of the Drill
Instructor School. He also served three years at the Pentagon as the Commandant of the Marine
Corps’ Deputy and Staff Judge Advocate, where his responsibilities included providing legal advice
to the Commandant of the Marine Corps and his staff, and ensuring adequate legal services for
172,000 Marines and their families. His duties also included teaching law and policy to government
and military officials in Eastern Europe, Africa, and Asia.
He was in the Pentagon on September 11, 2001; his office then displaced and continued operations
at the Navy Annex in Arlington, Virginia. Before leaving active duty and coming to NASA, his last
assignments included service as the Staff Judge Advocate, Marine Corps Combat Development
Command, Quantico, Virginia, and then as the Assistant Judge Advocate General of the Navy for
Military Justice, where he was responsible for military justice policy and practice for the Department
of the Navy. While there he also served on special assignment in Iraq, primarily in the Al Anbar
Province.
Mr. Winters is a member of the Kentucky Bar, has a Masters of Law from University of Virginia’s
School of Law, and is a retired Brigadier General. Mr. Winters is married to the former Rebecca Metz
of Louisville; they have two grown children, Amy and Aaron.
The presentation will include:
• Short overview of NASA, given its overall presence in the State of Florida;
• NASA Office of Inspector General’s role in protecting the taxpayers and NASA from fraud, waste,
and abuse; and
• Types of federal laws typically enforced with case examples such as (1) Grant and Contract Fraud,
(2) Counterfeit Parts, (3) Computer Crimes, (4) False Certifications, and (5) Conflict of Interest.
Continued On Next Page . . .
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Accompanying our guest speaker will be Special Agent (SA) Patricia Searle, Resident-Agent-inCharge at the Kennedy Space Center. SA Searle recently completed a successful investigation
where she apprehended and ultimately convicted three individuals for stealing moon rocks from the
Johnson Space Center.
As always, the Executive Board thanks our luncheon co-sponsors, Comerica Wealth Management
and Premier Wellness Centers.
We look forward to an insightful and engaging program with another great turnout. Please RSVP by
Monday, January 12th by calling (772) 220-8018 or emailing [email protected].
The lunch is free to MCBA members and judges; guests are welcome to attend and may pay the $25
guest fee at the door. RSVP required for all attendees. We hope to see you there!
Thank You Gregory G. Katsas!
Submitted By: Honorable Alan O. Forst
Appearing as the featured luncheon MCBA speaker for an unprecedented seventh
time since 2004, Gregory G. Katsas presented a United States Supreme Court
roundup and preview at the monthly Martin County Bar Association luncheon in
November. Katsas is one the country’s leading appellate attorneys.
Following a clerkship with Supreme Court Justice Clarence Thomas, Katsas
joined the Washington, DC, office of Jones Day. He is a shareholder of Jones Day,
returning to the firm following an eight-year absence while serving in the Justice
Department during the administration of President George W. Bush, culminating
in his appointment and confirmation as Assistant Attorney General, leading the
Civil Division of DOJ. Pictured with Mr. Katsas are Fourth District Court of Appeal
Judges Alan Forst and Mark Klingensmith, MCBA President Jennifer Waters, and Immediate
Past President of the MCBA, George Bush, Jr.
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SOCIAL COMMITTEE
Happy New Year!
We hope you all had a happy, healthy and safe holiday season. As we embark on
2015, we have many great upcoming MCBA events to look forward to!
First, thank you to all the MCBA members who
joined us for our joint FICPA holiday event
(ABC Mixer for Attorneys, Bankers and CPA’s)
held at the Crush Wine Bar last month. This
enjoyable annual event benefits the White
Dove Toy Drive Project, and we had a great
turnout of more than 70 attendees!
The project raised over $3,400 and collected
lots of great toys and nonperishable food
items for local children in need. In addition to the individuals who attended, the
following firms also made very generous donations as sponsors:
*Ameritas Investment Corp.
*Becker & Poliakoff – Legal and Business Strategists
*Berkowitz & Huff, P.A.
*Brian Beauchamp, P.A.
*Cain & Firley, P.A.
*Crary Buchanan
*Dean Schumm & Co.
*Florida Association of Women Lawyers – Martin County Chapter
*Randy Green RE/MAX
*Harbor Community Bank
*HBK CPA’s & Consultants
*Hovis Insurance & Financial
*Martin County Bar Association
*McCarthy, Summers, Bobko, Wood, Norman, Bass & Melby, P.A. – Attorneys at Law
*Philip DeBerard – Injury Attorney
*Proctor, Crook, Crowder & Fogal – Certified Public Accountants & Associates
*Roegiers, Goldin, Chappel, Nall & Associates – Certified Public Accountants
*Saelzer Atlas Wealth Management Group of Raymond James
*SEARLE & Associates – Insurance
*Spraker & Prinz
*TD Bank – America’s Most Convenient Bank
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•
Don’t Forget: Our “Movie Night In The Park” is Saturday,
January 24, 2015, from 5:00 p.m.-7:30 p.m. in Flagler Park
in downtown Stuart on the river (next to Pelican’s Café).
We will be showing the movie “Maleficent.” Bring your own
blankets, chairs, and beverages, and enjoy a movie night
with your family. Popcorn will be provided. Don’t miss it!
•
Join us on January 16th as we celebrate the Investiture of
Laurie Buchanan at the Martin County Courthouse (see
Page 3 for RSVP details), February 6th for the Investiture
of Victoria Griffin at the Indian River Courthouse, and
February 20th for the Investiture of Michael Heisey at the St.
Lucie County Courthouse. Look for more information on the
February investitures via email.
•
On February 21st-22nd, we will launch our annual Canoe
Trip. It is now SOLD OUT but there is a wait list - contact
Preethi Sekharan at [email protected] for more
information.
•
We are also very excited for our Annual Installation Banquet. Please see our sponsorship package
information on Page 8. Tickets will go on sale on February 1st - available on a first come, first
served basis.
Save the Date
May 16, 2015
2015 Annual Installation Banquet
“A Celtic Celebration”
Mariner Sands
Limited tickets for event will be available
Thank You To Our Early Sponsors!
Here’s to a great 2015! We hope to see you at these events!
For further information, contact Barbara Kibbey Wagner, Esq., at (772) 286-0023 or Jason Berger,
Esq., at [email protected].
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2015 Martin County Bar Association's
Banquet Sponsorship Opportunities
A Celtic Celebration
Saturday May 16, 2015
Edinburgh Castle Casino Sponsor $3,500
(Only 1 Available)
Recognition on Banquet signage and in program
Recognition by Banquet speaker
Recognition on MCBA Website
Recognition in Monthly MCBA newsletter for one month following Banquet
Free full-page advertisement in 1 edition of SideBar, MCBA’s monthly newsletter or –
½ page in 2 editions
≤ 6 free tickets to Banquet
≤
≤
≤
≤
≤
≤
≤
≤
≤
Glamis Castle
Gold Sponsor $1,500
Recognition on Banquet signage and in program
Recognition by Banquet speaker
Recognition on MCBA Website
Recognition in Monthly MCBA newsletter for
one month following Banquet
≤ Free full-page advertisement in 1 edition of SideBar,
MCBA’s monthly newsletter or – ½ page in 2 editions
≤ 4 free tickets to Banquet
Balmoral Castle Speciality
Drink Sponsor $1,300
≤ Recognition on Banquet signage and in program
≤ Recognition in Monthly MCBA newsletter for one
month following Banquet
≤ Free ½ -page advertisement in 1 edition of SideBar,
MCBA’s monthly newsletter or – ¼ page in 2 editions
≤ 2 free tickets to Banquet
Kilkenny Castle Cocktail
Hour Sponsor $1,100
≤
≤
≤
≤
(Only 4 Available)
Recognition on Banquet signage and in program
Recognition in Monthly MCBA newsletter for one
month following Banquet
Free ½ -page advertisement in 1 edition of SideBar,
MCBA’s monthly newsletter or – ¼ page in 2 editions
3 free tickets to Banquet
Blarney Castle
Silver Sponsor $1,000
≤
≤
≤
≤
Bunkingham Palace
Bronze Sponsor $750
≤
≤
≤
≤
8 in program
Recognition on Banquet signage and
Recognition in Monthly MCBA newsletter for one
month following Banquet
Free ¼ page advertisement in 1 edition of monthly
MCBA newsletter
1 Free ticket to Banquet
Recognition on Banquet signage and in program
Recognition in Monthly MCBA newsletter for one
month following Banquet
Free ½ -page advertisement in 1 edition of SideBar,
MCBA’s monthly newsletter or – ¼ page in 2 editions
2 free tickets to Banquet
Windsor Palace
Copper Sponsor $500
≤
≤
≤
Recognition on Banquet signage
Recognition in Monthly MCBA newsletter for one
month following Banquet
Free business card advertisement in 1 edition of
monthly MCBA newsletter
Contact Jason Berger at (772) 403-5880
For more information on becoming a sponsor.
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2015
REAL ESTATE AND COMMERCIAL LITIGATION UPDATE
Update: Real Property and Business Litigation Report
Lehmann v. Cocoanut Bayou Ass’n, --- So.3d ----, 2014 WL 5461970 (Fla. 2d DCA
2014).
A valid deed recorded after a “wild deed” is not, pursuant to the exception at Florida
Statute §712.03(4), extinguished by the Record Marketable Title Act.
Citibank, N.A. v. Konigsberg, --- So.3d ----, 2014 WL 5461972 (Fla. 2d DCA 2014).
A notice filed by lead counsel during the sixty-day grace period merely stating that
all counsel were “to forward further pleadings, motions, correspondence and other
papers to the lead counsel” is sufficient “record activity” to avoid dismissal under Florida Rule of Civil
Procedure 1.420 (e).
Smith v. Bruster, --- So.3d ----, 2014 WL 5462468 (Fla. 1st DCA 2014).
An action for return of real property procured by fraud is governed by the four-year statute of limitations of
Fla. Stat. § 95.11(3)(j), but the statute of limitations does not begin to run until the victim knew or should
have known of the fraud.
REWJB Dairy Plant Associates v. Bombardier Capital, Inc., --- So.3d ----, 2014 WL 5462520 (Fla. 3d
DCA 2014).
A new trial on both liability and damages is required if the plaintiff seeks additur under Florida Statute §
768.74(4) and the jury verdict makes it impossible for the reviewing court to determine on which claims
and defenses the jury made its determination.
Sweetapple, Broeker & Varkas, P.L. v. Simmon, --- So.3d ----, 2014 WL 5462531 (Fla. 3d DCA 2014).
Funds and financial information are not privileged in the hands of a client, and do not become privileged
by depositing the funds into an attorney’s trust account.
U.S. Nutraceuticals, LLC v. Cyanotech Corp., --- F.3d ----, 2014 WL 5471913 (11th Cir. 2014).
Arbitrability is issue for judicial determination unless parties clearly and unmistakably provide otherwise.
Under the rules of the American Arbitration Association, parties agree the arbitrator decides whether the
arbitration clause applies to the claims.
Holt v. Calchas, LLC, --- So.3d ----, 2014 WL 5614374 (Fla. 4th DCA 2014).
A witness must be sufficiently familiar with the procedures at the company where a business record
was prepared that she can meet the foundation requirements of the Business Records Exception to the
Hearsay Rule; it is not necessary to call the person who prepared the document to testify to admit the
document under the Rule.
Pennington v. Ocwen Loan Servicing, LLC, -- So.3d ----, 2014 WL 5740990 (Fla. 1st DCA 2014).
The assignment of a mortgage does not necessarily assign or transfer the note.
Cook v. Fernandina Seafood Co., --- So.3d ----, 2014 WL 5769097 (Fla. 1st DCA 2014).
A court should dismiss a premature appeal (as opposed to relinquishing jurisdiction to obtain a final order
or judgment) when an indeterminate amount of trial work remains.
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Katline Realty Corp. v. Avedon, --- So.3d ----, 2014 WL 5654292 (Fla. 3d DCA 2014).
A party cannot contract away violations of the Home Ownership Equity Protection Act’s protections against
high interest loans.
Hussey v. Collier County, --- So.3d ----, 2014 WL 5900018 (Fla. 2d DCA 2014).
The Bert Harris Act, Florida Statute § 70.001, only compensates for “as applied” claims of inordinate
government regulation and contains a one year tolling provision so that the claim does not ripen until the
exhaustion of administrative remedies. Inverse condemnation claims, on the other hand, do not have the
same tolling provision and may be barred by the statute of limitations before the Bert Harris claims ripen.
Empire Beauty Salon v. Commercial Loan Solutions IV, LLC, --- So.3d ----, 2014 WL 5877947 (Fla. 5th
DCA 2014).
Service of process on corporation’s officers or employees is not valid if there has not been compliance
with Florida Statute § 48.091 regarding attempts to first serve the corporation’s registered agent during the
statutorily required times.
Beach Community Bank v. City of Freeport, --- So.3d ----, 2014 WL 5856331 (Fla. 2014).
Ensuring that a real estate developer posts adequate security for infrastructure installation is a policy level
decision of a governmental agency, and agency is entitled to sovereign immunity from claims that agency
was negligent for failure to ensure compliance.
Citrus County Hosp. Bd. v. Citrus Memorial Health Foundation, Inc.
--- So.3d ----, 2014 WL 5856370 (Fla. 2014).
The Contracts Clause of the Florida Constitution, Article 1, § 10, applies to and protects the contracts of
not-for-profit corporations.
Sample v. Wells Fargo Bank, N.A., --- So.3d ----, 2014 WL 5834512 (Fla. 4th DCA 2014).
An affidavit in support of a motion for summary judgment cannot establish the parties were mutually
mistaken as to the legal description attached to a mortgage as one person cannot attest as to another’s
knowledge.
American Business USA Corp. v. Department of Revenue, --- So.3d ----, 2014 WL 5834619 (Fla. 4th
DCA 2014).
Florida’s tax on the internet sale of products ordered by out-of-state customers for out-of-state delivery
violates the Commerce Clause of the United States Constitution.
Taxi USA of Palm Beach, LLC v. City of Boca Raton, Florida, --- So.3d ----, 2014 WL 5834856 (Fla. 4th
DCA 2014).
A reviewing governmental board is not limited to “strict appeal” (no further introduction of evidence) on firsttier certiorari review from agency action.
N302DP, LLC v. Chardan Aero Corp., --- So.3d ----, 2014 WL 5836181 (Fla. 3d DCA 2014).
A lease agreement, whether of real or personal property, may create, defeat or amend the right to damages
either party may have.
Azco Realty, Inc. v. Village at Culfstream Park, --- So.3d ----, 2014 WL 6465540 (Fla. 3d DCA 2014).
Summary judgment for seller is proper in suit for real estate commission when claimant fails to hold a valid
real estate agent or broker’s license at time of sale.
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Clay County Land Trust No. 08-04-25-0078-014-27, Orange Park Trust Services, LLC v. Clay County
Land Trust No. 08-04-25-0078-014-27, Orange Park Trust Services, LLC v. JPMorgan Chase Bank,
Nat. Ass’n, --- So.3d ----, 2014 WL 6478787 (Fla. 1st DCA 2014).
Only a party to a mortgage may claim defenses that arise from the mortgage. Additionally, a party need not
have a formal assignment of note and mortgage so long as it can prove it had possession (and therefore
standing) at time of filing suit.
Finnegan v. Compton, --- So.3d ----, 2014 WL 6460627 (Fla. 4th DCA 2014).
Florida Rule of Civil Procedure 1.525 is satisfied by one of two scenarios: a final judgment granting
entitlement to attorney’s fees to one party, or the filing of a motion for fees within thirty days of the judgment.
A settlement agreement which provides for fees upon enforcement does not create an exception to Rule
1.525’s requirements.
Jelic v. CitiMortgage, Inc., --- So.3d ----, 2014 WL 6460763 (Fla. 4th DCA 2014).
Claiming affirmative defenses of “everything but the kitchen sink” is not sufficient; the defenses (including
unclean hands) must be factually and legally sufficient.
Racetrac Petroleum, Inc. v. Sewell, --- So.3d ----, 2014 WL 6465509 (Fla. 3d DCA 2014).
It is not error for a trial court to allow further Florida Rule of Civil Procedure 1.310(b)(6) depositions if the
person designated as the company representative testifies in deposition that others in the company have
knowledge regarding the 1.310(b)(6) issues.
Zaki Kulaibee Establishment v. McFliker, --- F.3d ----, 2014 WL 6434857 (11th Cir. 2014).
Consignment agreement imposes fiduciary obligation to account for sale of sold goods.
Anakarli Boutique, Inc. v. Ortiz, --- So.3d ----, 2014 WL 6674727 (Fla. 4th DCA 2014).
The time period for a covenant not to compete will be extended if the covenant was not enforced during its
contracted time period due to an appeal necessitated by the trial court improperly ruling that no enforceable
covenant existed.
Medco Data, LLC v. Bailey, --- So.3d ----, 2014 WL 6677204 (Fla. 2d DCA 2014).
A court reviewing a covenant not to compete under Florida Statue § 542.335 must apply the statutory
presumption of irreparable injury once it finds the covenant to be valid.
Cassedy v. Hofmann, --- So.3d ----, 2014 WL 6611749 (Fla. 1st DCA 2014).
Whether a party has waived the right to arbitrate a matter is for the trial court, not the arbitrator, to decide.
Any article appearing herein may be reproduced provided credit is given both to The SideBar and the author of the article. Views and conclusions
expressed in articles and ads herein are those of the authors or advertisers and not necessarily those of the officers, directors, or staff of the Martin
County Bar Association. Further, the Martin County Bar Association and staff do not endorse any product or service advertised. All advertising is subject
to approval. We regret any errors or omissions and such, if applicable, will be noted in future issues.
Many of the professional headshot photos have been provided courtesy of: Legal Consulting Services, Inc.
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ADMIRALTY COMMITTEE
THE ELEVENTH CIRCUIT BREAKS LONG-STANDING MARITIME PRECEDENT
IN MEDICAL MALPRACTICE CRUISE SHIP INJURY CASE
The Eleventh Circuit decision in Franza v. Royal Caribbean Cruises, Ltd., 1313067, November 10, 2014, overruled application in the Eleventh Circuit of the
long-standing precedent of Barbetta v. S.S. Bermuda Star, 848 F.2d 1364, 1988
AMC 2650 (5th Cir. 1988) that “[G]eneral maritime law does not impose liability
under the doctrine of respondeat superior upon a carrier or ship owner for the
negligence of a ship’s doctor who treats the ship’s passengers.” Franza conflicts
with the Fifth Circuit decision of Barbetta and two 96-year-old Ninth Circuit
precedents: The Great Northern, 251 Fed. 826 (9th Cir. 1918); and The Korea
Maru, 254 Fed. 397 (9th Cir. 1918). Cummiskey v. Chandris, S.A., 895 F.2d 107
(2nd Cir. 1990), is a weak per curium precedent that followed Barbetta.
In Franza, a maritime negligence dispute, an elderly cruise ship passenger fell and bashed his head
while the vessel, the “Explorer of the Seas,” was docked at port in Bermuda. The injured traveler,
Pasquale Vaglio, was wheeled back onto the ship, where he sought treatment from the onboard
medical staff in the ship’s designated medical center. Over the next few hours, Vaglio allegedly
received such negligent medical attention that his life could not be saved. In particular, the ship’s
nurse purportedly failed to assess his cranial trauma, neglected to conduct any diagnostic scans, and
released him with no treatment to speak of. The onboard doctor, for his part, failed even to meet with
Vaglio for nearly four hours. Tragically, Vaglio died about a week later. Vaglio’s daughter, appellant
Patricia Franza, sought to hold the cruise line, Royal Caribbean Cruises, Ltd., vicariously liable for
the purported negligence of two of its employees, the ship’s doctor and its nurse, under one of two
theories: actual agency (also termed respondeat superior) or apparent agency.
The U.S. District Court for the Southern District of Florida dismissed the complaint in its entirety under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim based on the so-called “Barbetta
rule.” In reviewing de novo the District Court dismissal, the 11th Circuit appellate court stated, “Although
the general maritime law of the United States has long embraced the principles of agency law, the
so-called “Barbetta rule” immunizes a ship owner from respondeat superior liability whenever a ship’s
employees render negligent medical care to its passengers. The rule confers this broad immunity no
matter how clear the ship owner’s control over its medical staff or how egregious the claimed acts of
negligence.” In reversing the dismissal, the appellate court stated, “After thorough review, we hold
that both [agency] theories are available in this case. We have repeatedly emphasized that vicarious
liability raises fact-bound questions, and we can discern no sound reason in law to carve out a special
exemption for all acts of onboard medical negligence. ... We decline to adopt the rule explicated in
Barbetta, because we can no longer discern a sound basis in law for ignoring the facts alleged in
individual medical malpractice complaints and wholly discarding the same rules of agency that we
have applied so often in other maritime tort cases.”
In Franza, the appellate court held that the basis for liability was adequately pleaded, and presented
issues of fact where it was plausibly alleged that (1) the carrier acknowledged that the nurse and
doctor in issue were acting on its behalf, (2) each accepted the undertaking, (3) both were employed
by the carrier as its employees or agents, (4) both were at all times material acting within the scope
Continued On Next Page . . .
12
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Continued From Previous Page . . .
and course of their employment, (5) the carrier directly paid the ship’s nurse and doctor for their work
in the ship’s medical center, (6) the medical facility was created, owned, and operated by the carrier,
(7) the carrier’s own marketing materials described the medical center proprietary language, (8) the
carrier knowingly provided, and its medical personnel knowingly wore, uniforms bearing the carrier’s
name and logo, (9) the carrier represented to immigration authorities and passengers that nurse and
doctor were members of the ship’s crew and introduced the doctor as one of the ship’s officers, and
(10) the carrier exercised control over the ship’s medical personnel. The theory of vicarious liability of
a principal for the acts of its agent turns primarily on the ability of the principal to control the acts of
the agent. Restatement (Second) of Agency § 220(1) (1958).
The Franza case, available on my website, BarbCookLaw.com, is worth reading in its entirety for its
thorough review of the authority for and development of judge-made maritime law in general, as well
as maritime tort agency law and its application in medical malpractice cases.
=========================================
Note: All my maritime articles are available on my website www.barbcooklaw.com
13
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2015
PROFESSIONALISM COMMITTEE
Florida Bar’s Professionalism Awards
Nomination Deadlines Approaching
The Florida Bar’s Standing Committee on Professionalism is now accepting
nominations for the:
• William M. Hoeveler Judicial Professionalism
Award, intended for either a state or federal judge “who
best exemplifies strength of character, service, and
competence as a jurist, lawyer, and public servant.”
Deadline: February 2, 2015.
• Group Professionalism Award, intended to find
one organization that has an innovative program that can be implemented
by other organizations to promote and encourage professionalism within the
legal community. Deadline: February 16, 2015.
• Law Faculty/Administrator Professionalism Award, intended to honor
a faculty member or administrator who, through teaching, scholarship, and
service to the profession, best supports or exemplifies the mission of the
Standing Committee on Professionalism. Deadline: February 16, 2015
(www.floridabar.org/professionalism).
All nomination forms can be found on the Center’s website - under the “Awards” section - and
must be submitted to the Henry Latimer Center for Professionalism.
For questions or more information on this topic or any other ethics/professionalism topic, contact
us at [email protected] or [email protected].
Public Guardian for Martin, St. Lucie and Okeechobee Counties
The Legal Aid Society of Palm Beach County, Inc., has contracted with the Statewide Office of Public
Guardianship (SPGO) in Tallahassee to be the legal guardian for up to 45 incapacitated individuals
residing in Martin, St. Lucie and Okeechobee counties who are without family or friends willing or able to
assist and who have insufficient assets to afford the services of a professional guardian.
The Legal Aid Society has a public guardianship program to take responsibility of this population. They
have been established in Palm Beach County serving wards since 1994 and are looking forward to
expanding their services to these additional counties. In Palm Beach County they generally receive
referrals from various sources, including the Department of Children and Families, the Court, nursing
homes, or other facilities and agencies who have someone in need of guardianship. If you have any
questions or would like further information about this program, please feel free to contact: Rena J. Taylor,
Esquire at (561) 655-8944, Ext. 245.
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2015
EMPLOYMENT & LABOR LAW COMMITTEE
Compliance With The Fair Debt Reporting Act
An article I read recently reminded me that employers who obtain consumer
reports from third party credit reporting agencies should insure that their
authorization and disclosure forms, and those provided by these third-party
agencies, comply with the technical provisions of the Act. Failing to follow even
the technical aspects or procedures required by the Act can get a company in
trouble, as evidenced by several recent trial verdicts.
Watch Out For Technical Violations
Many employers use some form of credit checks during their hiring process.
Employers may not realize it, but if they obtain consumer reports or investigative
consumer reports from a third-party consumer reporting agency ("CRA"), the federal Fair Credit
Reporting Act ("FCRA") is implicated and comes into play. The FCRA has technical and other
notification requirements which employers must follow when (1) getting permission from applicants
to obtain credit or background checks, and (2) obtaining or using either of these reports. Willful
violations of the Act can result in damages ranging from $100 to $1,000 per violation.
It is risky for companies to rely solely on the disclosure and authorization forms provided to them by
third-party vendors. Employers who obtain background checks from consumer reporting agencies
should insure that the forms they use, or those provided, comply with the Federal Fair Credit Reporting
Act and any state counterparts. Employers that conduct background checks would be well served to
review their hiring forms with experienced counsel to insure they comply with the FCRA.
=========
For questions on this area of law or content noted above, contact Robert Kilbride at
[email protected]. Attorney Kilbride is Board Certified in Labor & Employment Law.
2015 JUDICIAL NOMINATING COMMISSION NOMINATIONS TO BE MADE
Judicial Nominating Commissions: One lawyer vacancy for each of the 26
JNCs. The Florida Bar has the opportunity to nominate three lawyers for each
Judicial Nominating Commission to the Governor for his appointment. Each
appointee will serve a four-year term, commencing July 1, 2015. Applicants must
be engaged in the practice of law and a resident of the territorial jurisdiction
served by the commission to which the member is applying. Commissioners are
not eligible for state judicial office for vacancies filled by the JNC on which they
sit for two years following completion of their term.
Applications must be received no later than 5:30 p.m., March 2, 2015, in the
Executive Director’s office of The Florida Bar (651 East Jefferson Street, Tallahassee, FL 32399-2300).
Resumes will not be accepted in lieu of an application. Screening committees of the Board of Governors
will review all JNC applications. The Executive Committee will then make recommendations to the Board
of Governors.
Persons interested in applying for any of these vacancies may download the proper application form
(there is a specific JNC application) from The Florida Bar's website, www.floridabar.org, or call Bar
headquarters at (850) 561-5757 to obtain the application.
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2015
News From Y
Your Friendly Neighborhood Bar
The Martin County Taxpayers Association hosted the 2014 Legislator of the Year Award Luncheon
honoring Senator Joe Negron on December 2, 2014. The luncheon for more than 80 community
leaders was sponsored by Florida Power and Light, where the Senator was recognized for his
efforts to benefit Martin County, including but not limited to degradation of the river, All Aboard
Florida, tax relief, transparency and appropriation issues.
The Law Office of Brandon Woodward is pleased to announce its relocation to the Geary Law
Building at 27 SE Ocean Boulevard in downtown Stuart. Brandon’s business law firm is honored
to share this historic space with such legal luminaries (and fellow MCBA members) as The Geary
Law Office, P.A., The Law Offices of Derek Aronoff, Esq., and Joshua Deckard, P.A.
The law office of Joseph D. Grosso, Jr., P.A., has relocated to the Crexent Center located on
Federal Highway at the north end of the Roosevelt Bridge. The new contact information is:
Joseph D. Grosso, Jr., P.A., The Crexent Center at Stuart Commons, 850 NW Federal Highway,
Suite 164, Stuart, FL 34994; Phone: (772) 261-8557. “We look forward to representing our clients
in their real estate and business matters from our new location.”
Please send us your news of new hires, promotions, awards, engagements, marriages,
child births, new addresses and the like for future issues of the SideBar.
***Reminder***
Member Benefit
Limited to 1 per year.
16
Professional head shot photos are taken at each
luncheon courtesy of
Legal Consulting Services, Inc.
at no charge to members for use on our
website and legal directory.
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2015
TRIAL LAWYERS COMMITTEE
Please Join Us!
Please join us at our next Trial Lawyers Committee meeting on January 8, 2015
(Noon), at the Gunster Law Firm, 800 SE Monterey Commons Blvd., Suite 200,
Stuart, Florida.
Our guest speaker will be the Honorable F. Shields McManus. Judge McManus
has tried numerous cases as an attorney, and presided over hundreds more as
a trial judge. He brings a wealth of experience with him as he discusses what
he has learned during his esteemed career.
Lunch will be provided by Carson’s Tavern. If attending, please RSVP as soon as
possible, no later than January 6th, to Tammy Gale at [email protected].
I look forward to seeing you there!
Hon. Shield McManus
W. Jay Hunston, Jr.
Law Office Of
Stephen M. Lewen
Mediator/Arbitrator
Since 2001, limiting his
practice to all forms of effective
dispute resolution, including
mediation, arbitration, special
master, and private judging
services.
Social Security Disability
Worker’s Compensation
Representing the injured and disabled
for over 34 years.
EXPERIENCE COUNTS!
10 SE Central Parkway, Suite 230
Stuart, FL 34994
Telephone: 772-288-1300 | Fax: 772-288-2135
18
•
•
•
•
•
•
•
•
J.D., Stetson Univ. College of Law
Fla. Bar Bd. Cert. Civil Trial Lawyer, Emeritus
Fla. Cert. Circuit Civil, Appellate & Family Mediator
Member, AAA Roster of Neutrals for Commercial and
Construction Arbitration and Mediation
Qualified Fla. Arbitrator
FINRA Approved Mediator
Statewide Per Diem Rate Available Upon Request
Hourly Rates Available (No Charge for Travel Time Within 15th,
19th, and 17th Circuits)
P.O. Box 508, Stuart, FL 34995
(772) 223-5503; (800) 771-7780 - Office
(772) 223-4092; (866) 748-6786 - Fax
Email: [email protected]
Website/Online Calendar: www.hunstonadr.com
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SMALL AND SOLO PRACTICE COMMITTEE
We Wish You All a Happy & Healthy Holiday Season!
Please join us for a free lunch and free CLE presentation on Wed., January 28th
(Noon), at The Crexent (850 NW Federal Highway in Stuart):
STRATEGIES TO AVOID ERRONEOUS DECISIONS AT MEDIATION
AND ELECTING TO PROCEED TO TRIAL
Please RSVP to [email protected]. Space is limited and is first come,
first served.
Additionally, if you have a suggestion for a speaker or topic that will appeal to Small & Solo Practitioners,
please email me at [email protected].
Martin County Chapter
Florida Association for Women Lawyers (FAWL)
The Florida Association of Women Lawyers, Martin County
Chapter, is proud to present a CLE Luncheon on “Effective
Public Speaking for Legal Professionals” presented by Joe Duerr
of Toastmasters International. Toastmasters International is a
nonprofit educational organization that has been teaching public
speaking and leadership skills throughout the world since 1924.
Mr. Duerr’s CLE presentation will be focused on assisting attorneys
in becoming more confident and effective public speakers.
Please join FAWL-Martin County on Wednesday, January 21, 2015, at 12:00 p.m. at Gunster,
Yoakley & Stewart, P.A., 800 SE Monterey Commons Boulevard, Suite 200, Stuart, Florida, for this
valuable CLE presentation. The CLE Luncheon is FREE for current FAWL-Martin County Members
and $10 for all others. Space is limited; please RSVP to Mary Kostick at [email protected]
on or before January 19th to ensure an accurate head count.
Here are the FAWL events that are taking place in 2015 – Look for more details coming soon:
•
January 21, 2015 - Toastmasters Luncheon – Speaker: Joseph Duerr. CLE applied for*
•
February 11, 2015 - Mentoring Luncheon with Speaker: Kathryn Bass. CLE applied for*
•
March 25, 2015 - Marty Holleran to present Mediation CLE Luncheon. CLE approved*
•
April, 2015 (specific date TBD) - FAWL, Martin County Judicial Assistant Appreciation
Luncheon*
•
May, 2015 (specific date TBD) - Local Administrator’s Group Presentation & Luncheon*
*Seeking sponsorship for this event.
19
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2015
2015 MCBA Legal Directory is Here!
MCBA members may pick up their free copy at the January 16th
luncheon meeting. If you are unable to make the January 16th
meeting, contact Kathy Enloe at (772) 283-8002 AFTER JANUARY
17th for more information.
A special thank you to Kathy Enloe of Esquire Reporting for her
support of this valuable community legal resource. More than
1,000 of these directories will be distributed to attorney offices,
judiciary and businesses that support the legal community.
20
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2015
PROBATE, TRUST & GUARDIANSHIP COMMITTEE
Looking Forward to Another Great Year For Our Committee!
The next Probate, Trust & Guardianship Committee meeting will be held from
12:00-1:00 p.m., February 12, 2015, at the offices of Fox, Wackeen, et al. (The
Tower Building at Willoughby Commons, 3473 SE Willoughby Boulevard in
Stuart.) Lunch will be provided as usual. If you plan on attending, please RSVP to
[email protected] by February 9th at the latest.
Meetings will be the second Thursday of every other month; please mark your
calendars for our next meetings on February 12, 2015 and April 9, 2015.
2015 We the People: The Citizen and
the Constitution Mock
Congressional Hearings State Finals
On January 23, 2015, Stuart Middle
School 7th grade civic students are
participating in mock congressional
hearings in Orlando at Nova
Southeastern University as a part
of their civics program. This is the
first time Martin County students
are participating in this event. We are very excited
to partner with Florida Law Related Education
Association and We The People Civic Education. If
you, your firm, or business is interested in being
a sponsor for this exciting student experience,
please contact Mrs. George, Principal, Stuart Middle
School, 772-219-1685, ext. 103 or Mrs. Kathleen
Cannon, civics teacher, 772-219-1685, ext. 224 or
[email protected].fl.us.
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Additional information about the program can be
found at: www.flrea.org.
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MARTIN G. HOLLERAN
Circuit Civil Certified Mediator
Mediating throughout the
19th Circuit
Tel. No. 772 283 5438
Fax. No. 772 283 5438
[email protected]
21
Stuart‡West Palm Beach‡Boca Raton
325 South East Ocean Boulevard, Stuart, Florida 34994
Rodney Romano‡ Ronald Alvarez‡ Theodore Deckert‡Gary Dickstein
Stephen Fischer‡ Frederick Hazouri‡Patrick Massa‡Amber McMichael‡James Munsey
Kevin O’Brien‡ Robert Ponzan‡Patti Velasquez‡Richard Wennet ‡Louis Williams
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2015
Save the Date!
th
The 4 District Court of Appeal’s 50th Anniversary Celebration
Saturday, November 14, 2015 (6:00 p.m.)
at
Kravis Center for the Performing Arts
701 Okeechobee Boulevard in West Palm Beach, FL
To purchase tickets, reserve a table, or become a sponsor, please contact
Jack Aiello, Esq. at [email protected]
JUSTICE TEACHING
ABOUT JUSTICE TEACHING...
For information about Justice Teaching, please contact
Judge Roby at: 772-288-5560, [email protected] or visit the website at:
http://www.justiceteaching.org.
We look forward to working/teaching with you!
Your Local Elder and Special Needs Law Team
Nicola J. Melby
Donna R. McMillan
Certified Elder Law Attorney
Master of Social Work
by the National Elder Law Foundation
Attorney
and the Florida Bar
[email protected]
[email protected]
2400 S.E. Federal Highway, 4th Floor • Stuart, FL 34994
(772) 286-1700 • Fax (772) 283-1803
www.McCarthySummers.com
Integrity. Dedication. Solutions.
Elder Law
Special Needs Trusts
Medicaid Planning
and Applications
Long Term Care Planning
Estate Planning
Wills & Trusts
Probate
Guardianship
Veterans’ Benefits
LADY LAWYERS COMMITTEE
Lady Lawyers
Luncheon!
There has been some
interest in rekindling the
Lady Lawyers Luncheon.
If you would be interested
in attending and have
any feedback on better
dates and/or locations,
please contact Donna DeMarchi at
[email protected] or call her at
772-287-2600.
23
7 BIG
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2015
You will sign our contract
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You will receive a check
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REASONS TO REFER US YOUR
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We will send our New Case
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even on weekends.
You will receive a copy of
our demand letter to the
insurance company when it
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You will sign the settlement
statement, which shows you
exactly what the case
settled for. You’ll be thrilled
with our results.
GET TO
KNOW US
Establish a profitable relationship today
Call or Email Tom Copeland
Marketing Director
(561) 697-4440 · WWW.800GOLDLAW.COM
2090 PALM BEACH LAKES BLVD, SUITE 402, WEST PALM BEACH, FL 33409
24
(561) 727-3140
[email protected]
to schedule a lunch
with Mr. Goldenfarb
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2015
ALTERNATIVE DISPUTE RESOLUTION COMMITTEE
5 Out Of 6 Cases Settled!
Over the last year I mediated six cases that were in a state of impass, so I asked the
parties and their attorneys if it would be acceptable to all of them for me to meet with all
sides participating in the mediations, determine whatever terms may be acceptable to
all parties, and prepare a mediator proposal using the input given to me by the parties.
When both sides in two of the mediations rejected my proposal, the attorneys and
parties had a new starting place; and within three days after the mediations, the parties
settled, using many of the terms I proposed, and I was asked to prepare the long-form
agreement regarding these cases. One of the six cases failed to settle, and the other
three settled within a week.
Alan Scott
Chair
This may appear controversial considering the right to self-determination, but I made it clear to the attorneys
and their clients that I was only trying to help, and the parties would decide whether to use the proposal as
offered, add to or remove certain suggestions, or totally reject it. The proposals also set a value that each
side may or may not agree to. Further, neither side is informed of the result until both sides come to an
agreement.
What are your thoughts regarding the use of a mediator proposal? Let me know at:
[email protected].
Susan B. Jacobson, L.M.H.C.
►
►
►
►
►
►
Qualified Expert Witness in Family and Criminal Courts
Nationally Certified Custody Evaluator
Nationally Certified Parenting Coordinator
FL Supreme Court Certified Family Mediator
Fellow in Psychotherapy
Collaborative Law Mental Health Professional
Serving Martin, Palm Beach and Broward Counties
www.f-fc.com
561-558-1342
25
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2015
PRO BONO COMMITTEE
Happy New Year from the
Pro Bono Committee!
We hope that your pro bono service is gratifying in many ways.
Will you consider making pro bono service part of your New
Year’s Resolution?
1.
2.
3.
4.
5.
The Pro Bono Committee has the following cases to place
with attorneys in Martin County:
Senior seeking assistance with advanced directives, last will & testament, and DPOA.
Senior seeking assistance with foreclosure defense.
Senior seeking assistance with probate to obtain mortgage modification.
Father seeking assistance with paternity.
Multiple clients seeking assistance with Ch. 7 bankruptcy.
Imagine the impact we can make if each member of the MCBA accepts just ONE pro bono
case! To volunteer to take a case or to participate in a legal advice clinic, please contact:
Carolyn Fabrizio at [email protected] or Jane Cornett at [email protected].
The Pro Bono Committee will be happy to refer a
pro bono case to you in 2015!
Consider Getting Involved in The Guardian ad Litem Program
Serving in the capacity as a pro bono attorney is not only rewarding in the sense that you
are advocating for a child, but you will also benefit by earning pro bono hours that meet the
Florida Bar reporting requirements and CLE credits for completing training.
To volunteer or learn more about becoming involved with the 19th Circuit
Guardian ad Litem Program, please call Gail Griffith at (772) 871-7225 or visit
www.GuardianadLitem.org.
26
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2015
The W. R. “Bill” Scott Park Dedication
The City of Stuart and many other local dignitaries recognized the
decades-long service of Bill Scott, Esquire to Martin County on
December 6, 2014 in a park dedication in his honor.
The W. R. “Bill” Scott Park is located at the intersection of Mango Place
and Martin Avenue in the City of Stuart (1 ¼ miles east of the Martin
County Courthouse off of East Ocean Boulevard).
Bill Scott, Esquire
Mr. Scott practiced law in Martin County for more than 50 years and
was one of the first MCBA Presidents (1955-1958). We congratulate Mr.
Scott and his family!
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To learn what TD Bank can do for your
practice, contact Nicole Hibbs, Treasure Coast
Business Banker & Relationship Manager at
1-772-828-9739 or [email protected], or
connect to www.tdbank.com/smallbusiness.
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27
3/20/13 11:36 AM
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2015
LAW LIBRARY COMMITTEE
Law Library Update
The CLE seminars noted below are available free of charge to all MCBA members
through the law library. If you have new seminar suggestions, please e-mail me
at [email protected] for consideration. To check on existing seminar
availability, call Dawn at the Law Library at 221-1427. The Law Library is open
Mon.-Thurs., 9:00 a.m.- 1:30 p.m.
Current CLE Seminars available at the Law Library include:
•
Essentials of Elder Law for New Attorneys and Paralegals (9.5 credit hours, 1 hour Ethics).
Certification hours: 7.0 in Elder Law and 3.0 in Wills, Trusts & Estates.
•
The Revised Land Trust Act (6.5 credit hours, 1 Ethics). Certification hours: 6.5 in Real Estate, 5.0
in Elder Law and Wills, Trusts & Estates, and .05 in Tax.
•
Navigating the New Florida Revised LLC ACT (7.5 credit hours).
•
Survey of Florida Law 2014 (2 copies) (14.5 credit hours). Certification hours: 4.5 in Business
Litigation, 2.5 in Civil Trial Trusts, 2.0 in State, Federal, Government & Administration Practice,
and 1.0 in Elder Law; City, County and Local Government; Health Law; and Tax, Wills, Trusts &
Estates.
New Book Reports:
•
Florida Statutes Annotated are new and updated.
CLE Sharing Request
If you or your firm have CLE CD’s, DVD’s or audiotapes that are unexpired
and you are willing to donate them to the Law Library, please bring them to any
monthly luncheon or contact [email protected]
to make arrangements for pick-up.
28
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2015
Scholarship Committee
Scholarship Funding At No Cost To The MCBA!
The MCBA has partnered
with TD Bank to benefit
our Scholarship Fund. If
you, your family or any
friends already have an
account with TD Bank,
our
Scholarship
Fund
will be credited $10 from
the bank for each when
Affinity Membership Program
our code (AG235) is
Support your organizations’ fundraising efforts by joining today. We’ll
provided to them. Note:
make an annual contribution based upon the activity of participating
No Accounts Are Linked
members TD Bank accounts once program requirements have been met.
to the MCBA nor do we have any access
For more information, visit your local TD Bank
to any member accounts. If a new account
or call 1-888-751-9000.
is opened, our Scholarship Fund receives
a $25 credit (depending on the account
type, you may get the credit too)! This is a
win-win for everyone! Contact Michelle at
[email protected] for
more information.
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Gulfstream Business Bank’s
L.A.W. Service for your practice
Gulfstream is a locally
owned niche bank that
focuses on professionals
and business owners.
• E-mail sent to office
manager for wire transfer
• Receipt provides
date, beneficiary
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tracking number
• Template format
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2015
PARALEGAL COMMITTEE
Happy New Year To All!
Representing the Paralegal Committee
of the Martin County Bar Association, I
was honored to serve the community
on Thanksgiving morning with the Big
Heart Brigade helping families in need.
Among many others, I was privileged
to see and speak with former County
Commissioner Elmira Gainey and
Joshua Ferraro, Esquire, and his
beautiful little girl.
It was a wonderful way to start a great day with family and
friends, feeling blessed and very thankful. Thank you to all
who also serve the community throughout the year and in
many different ways. I was able to see that it truly makes
a difference in other lives.
Under 50 & Love Golf?
YOU BELONG AT MONARCH
ENJOY PREMIER GOLF AND MORE
Executive Professional Membership
• 18-hole Arnold Palmer-designed championship golf course
• Tennis leagues and programs for every skill level
• Junior Olympic swimming pool
• Fun Club-hosted social and dining events
• No food and beverage minimum or assessments
• Casual patio dining and poolside Tiki Bar
As an Executive Professional Member, you also enjoy O.N.E. (Optimal Network Experiences): 50% off * à la carte dining at Monarch Country Club and access to
ClubCorp’s industry-leading Network of more than 200 private clubs and resorts and more than 700 renowned hotels, restaurants and entertainment venues.*
$360 monthly dues include greens fees, cart fees and O.N.E. benefits!*
For a personal tour or more information please contact
Beth Robertson, Membership Director
Beth Robertson, Membership Director, at
772.286.8447 | [email protected]
*Offer expires 02/28/2015 and may not be combined with any other new Member programs or discounts. Reservations must be made through ClubLine. All offers are subject to availability. Alcohol
excluded and cart fees, guest charges, service charges and/or applicable taxes may apply. Other restrictions may apply. See the Club for details. © ClubCorp USA, Inc. All rights reserved 26319 1214 SLC
monarchclub.com
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FORECLOSURE LAW COMMITTEE
January, 2015 Foreclosure Law Committee Report
Happy New Year! In this report, there are a number of summary judgment and final
judgment reversals that took place. Here are some cases of possible interest:
Suarez v. Space Coast Credit Union (3rd DCA November 19, 2014). The lender
filed an affidavit in support of its motion for summary judgment eight days before
the hearing. The 1st DCA held lender’s supporting affidavit was untimely and,
therefore, should not have been considered by the trial court. The moving party
must file and serve all evidence at least twenty days before the hearing. Fla. R. Civ.
P. 1.510(c).
Martins v. Oaks Master Prop. Owners Ass’n, Inc., (5th DCA November 14, 2014). A great case
discussing the “diligent search” requirements necessary to effectuate personal service by publication.
In this day and age it seems unlikely a person cannot be found. The Court found the lower court
grossly abused its discretion by failing to vacate the final judgment of foreclosure.
Empire Beauty Salon v. Commercial Loan Solutions IV, LLC (5th DCA November 14, 2014). A
great case discussing the requirements necessary to serve a corporation under §48.081 Fla. Stat.
Sample v. Wells Fargo Bank, N.A., (4th DCA November 12, 2014). Yet another reversal of a
summary judgment where the motion for summary judgment did not include any mention of the
plaintiff’s intent to reform an incorrect legal description in mortgage or refute the affirmative defense
of an incorrect legal description.
Salauddin v. Bank of Am., N.A., (4th DCA November 12, 2014). The 19th Judicial Circuit court
entered final judgment in favor of the lender. The borrower appealed the final judgment order,
specifically as to the interest rate used by the trial court, because the lender did not produce evidence
of any future changes in the interest rate. The 4th DCA agreed and held the lender was only entitled
to a minimum of a 5% interest for post-default period after date on which interest rate in mortgage
became adjustable. The 4th DCA went on to state the amount of the actual interest rate after May
2012 was unknown, and there was no testimony or evidence provided at trial as to the actual interest
rate for those months. Therefore, since the note stated the interest rate would not drop below 5%,
this percentage was the only proof the lender supplied at trial, and the trial court should have used
this interest rate to calculate the amount of interest after May 2012.
Pennington v. Ocwen Loan Servicing, LLC (1st DCA November 6, 2014). In this case the 1st
DCA reversed and ordered the trial court to enter judgment in favor of the borrower because the
lender failed to establish its standing to foreclose. The note was endorsed to someone other than
Ocwen, and the assignment of mortgage only showed the prior holder assigned its interest in the
mortgage but not the note.
Holt v. Calchas, LLC (4th DCA November 5, 2014). The Court found the lender’s asset manager
lacked the personal knowledge of record-keeping procedures required for admission of the borrower’s
mortgage history under the business record exception to the hearsay rule. The Court emphasized that
a witness’s general testimony that a prior note holder followed standard record-keeping practices,
Continued On Next Page . . .
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Continued From Previous Page . . .
without discussing details to show compliance with section 90.803(6), is not enough to establish a
foundation for the business records exception. Furthermore, the Court held while a copy of the
notice of intent to accelerate was admissible as a verbal act, affidavits offered to prove the notice was
sent constituted inadmissible hearsay. The Court also reminded banks attempting to introduce a prior
servicer’s records of the ability to use 90.902(11) Fla. Stat. to self-authenticate them. This eliminates
the need to call the prior servicer as a witness or to find a witness competent to authenticate the
current and former servicer’s records.
Katline Realty Corp. v. Avedon, (3rd DCA November 5, 2014). If you have a case involving a
second mortgage or home equity line of credit (HELOC), you need to read this case, especially if the
borrower was elderly and had equity in their home when they obtained the loan. Great discussion of
HOEPA and TILA.
HSBC Bank USA, N.A., v. Serban (1st DCA October 23, 2014). Great case for those of you who
have encountered judges who feel borrowers are not prejudiced when banks move for continuances
because “the borrower has been living in the house without paying a mortgage.” The Court
found borrowers are prejudiced, and judges should be reluctant to grant continuances of trials in
circumstances where banks “over-schedule their employees or representatives in other cases.”
Lacombe v. Deutsche Bank Nat. Trust Co., (1st DCA October 14, 2014). The 1st DCA reversed
the lower court’s entry of judgment against the borrower, holding the bank lacked standing to bring
the foreclosure action, and refused to remand case to permit the bank to prove standing where case
had been pending for years.
Keifert v. Nationstar Mortgage, LLC (1st DCA October 13, 2014). After substitution of a successor
plaintiff, the lower court entered judgment against the borrowers at trial. At trial the original of the note
attached to the amended complaint came into evidence. That note contained two endorsements:
the first, an endorsement from Lehman Brothers Bank, FSB to Lehman Brothers Holdings, Inc., and
the second, an endorsement in blank by Lehman Brothers Holdings, Inc. Both endorsements were
undated; neither answered the question whether the endorsement in blank antedated the filing of
the original complaint. The 1st DCA reversed and held the successor plaintiff failed to establish the
original plaintiff had standing to foreclose when it filed the complaint.
Burdeshaw v. Bank of New York Mellon, (1st DCA October 13, 2014). Robo-testifiers beware! In
this case, the court reversed the lower court’s entry of judgment against the borrowers, and upheld
the borrowers’ challenge to the lender’s failure to establish the business records exception to the
hearsay rule for the documents upon which the judgment was based. The court held the admission of
the testimony of the “default proceedings officer” at trial about the loan balance, and the admission of
the computer printouts she was called to authenticate, over hearsay objection, constituted “reversible
error.”
Freiday v. OneWest Bank, FSB (4th DCA October 1, 2014). Here, the 4th DCA reversed another
summary judgment because the default letter attached to lender’s motion for summary judgment was
not mentioned in the affidavit in support of the summary judgment. As such, the default letter was not
properly authenticated and was not admissible evidence.
========
For more information on this area of law or the content above, contact Trent Steele at:
[email protected].
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SCHWED, ADAMS, SOBEL & MCGINLEY
561-694-6079
[email protected]
Offices in Palm Beach Gardens and Stuart
34
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BANKRUPTCY COMMITTEE
AS THE HOUSING PENDULUM SWINGS
The Supreme Court has agreed to hear Bank of America v. Caulkette and Bank of America
v. Toledo-Cardona. These are leading cases in the 11th Circuit regarding the ability of
Florida residents to save their homes from foreclosure by stripping off junior mortgages
that no longer have an equity position because the first mortgage now exceeds the value
of the home.
Both of these cases allowed the stripping of underwater second mortgages in Chapter 7,
a practice that was limited to Chapter 13’s until the 2012 In re:McNeil decision by the 11th
Circuit sidestepped the 1992 Dewsnup v. Timm decision.
By combining the McNeil motions with the Bankruptcy Court’s Mortgage Modification Program to bring first
mortgage payments into line with income, owners are able to structure affordable payments that allow them
to keep their homes for the benefit of themselves and their families.
Bank of America, joined by other lenders holding 2nd and 3rd mortgages, wants to be able to force homeowners
into continued payments on these often ill-advised, high pressured loan originations, as they continue their
efforts to avoid the consequences of the mortgage and real estate crisis. If the Supreme Court rules in favor
of the lenders, they may get more than they bargained for in the form of a new “tsunami” of foreclosed houses
instead of payment streams. Homeowners will likely come to realize the hopelessness of their situation and
decide to surrender their homes, setting off another round of falling home values while even more empty
houses become available as REO inventory and/or “short sales.”
FANNIE AND FREDDY: MORE CHANGES?
There may be new rules in effect in the coming weeks for some homeowners who were displaced as a result
of foreclosure and had loans with these organizations. The latest reports suggest these folks will be able to
repurchase their previous homes at current market value, a practice that was previously not allowed for them
or relatives trying to help. The idea is to reduce the numbers of empty houses and stabilize neighborhood
values. Please re-read the above. Is it just me, or are we on a merry-go-round?
Need more information? Contact Bankruptcy Committee Chair Jon L. Martin at (772) 419-0057 or
[email protected].
HAPPY NEW YEAR!
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Attention All Tennis Players!
We have scheduled the Fourth Annual MCBA Tennis Tournament for
Sunday, February 8, 2015, at Mariner Sands Country Club. Play starts at
10:15 a.m. with lunch served around 1:00 p.m.
Doubles teams will be randomly paired, and the highest lawyer finisher will
be awarded the Big Trophy.
Families are invited, so if your kids or spouse play tennis, sign them up and
show them how to compete!
We have room for 20 players, all free of charge, so please sign up quickly to save a spot.
I hope you can join us for another year of fun and friendly tennis. Please send me an email
w
if you are able to make it: [email protected].
DESERVES OUR RESPECT
We know that achieving more in the community
begins with the people who belong to it. That’s
why we’re proud to support the Martin County Bar.
Stop by any branch, phone
1-877-Call-PNC or visit pnc.com.
©2011 The PNC Financial Services Group, Inc. All rights reserved. PNC Bank, National Association. Member FDIC.
ACHIEVEMENT is a registered mark of The PNC Financial Services Group, Inc.
36
COMMSERV AD JUN 2010 012
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Welcome Judge Rosenberg!
On Thursday, November 13, 2014, the Judges of the United States
District Court Southern District of Florida hosted a reception to welcome
Judge Robin L. Rosenberg as the first District Judge designated to sit in
Fort Pierce.
Before being appointed to the federal bench, she was sworn in on January 2,
2007 as a Circuit Court judge for the Fifteenth Judicial Circuit (Palm Beach
County). Judge Rosenberg was assigned to the Circuit Civil Division from
2007-2013, after which she served in the Foreclosure Division from April 2013
- September 2013, and then served in the Criminal Division until July 2014.
Prior to her election as a Circuit Judge, Judge Rosenberg was a partner of
Rosenberg & McAuliffe, PL, and focused her law practice on representing
Judge Robin L. Rosenberg
and counseling clients in general employment law and litigation matters.
From 1999 to 2002, Judge Rosenberg served as Vice President and General
Counsel of Slim•Fast Foods Company and was a member of the executive committee that led all
company operations. As General Counsel, Judge Rosenberg supervised the legal matters for the
company, including corporate, litigation, products liability, regulatory, and labor/employment issues. In
2001, she led the legal team for Slim•Fast through a $2.1 billion merger with Unilever.
Prior to her tenure with Slim•Fast Foods Company, Judge Rosenberg was a litigation partner with the
law firm of Holland & Knight, LLP, in West Palm Beach. Judge Rosenberg concentrated her practice
in the representation of employers in employment and labor disputes, including Title VII, ADA, ADEA,
FCRA, FMLA and FLSA matters. From 1995 to 1997 Judge Rosenberg worked as an attorney in
private practice and at the City Attorney's Office in West Palm Beach. For the 1993-94 academic
year, Judge Rosenberg was a CEP Fellow and Visiting Professor at a university in the Czech
Republic. She assisted in the establishment of a graduate public administration program for Czech
graduate students.
In 1990 Judge Rosenberg was accepted through the Honor Program into the U.S. Department
of Justice in the Employment Litigation Section of the Civil Rights Division in Washington. D.C. As
a trial attorney from 1990 to 1994, Judge Rosenberg represented the United States as the plaintiff in
employment discrimination cases throughout the country. Judge Rosenberg served as a judicial law
clerk to the Honorable James C. Paine, United States District Court, Southern District of Florida, from
1989-1990.
Judge Rosenberg is a member of Florida and Washington, DC, Bars, as well as the Bars of the United
States Supreme Court, 11th Circuit Court of Appeals, and Southern District of Florida.
Judge Rosenberg, while in private practice, had an A-V Rating from Martindale-Hubbell. She also was
a Circuit Civil and County Court Certified Mediator and owned a mediation company, ARC Mediation.
She was a member of the American Arbitration Association (AAA) National Roster of Arbitrators and
Mediators. She is a graduate of Princeton University (BA - Politics) and Duke University's Law
School (JD) and Duke University's Sanford Institute of Public Policy (MA).
Judge Rosenberg will be MCBA’s guest speaker at our May 15, 2015 luncheon and if you were not
able to make the reception in November, we hope you will take the opportunity to meet her then.
37
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L, Jo d Leglatiо
19th Judicial Circuit Court of Florida
Court administration, judicial
assignments, programs,
job opportunities and other
resources:
www.circuit19.org
Visit
www.martincountybar.org
for resources, links, events
and member contact &
practice area specialties.
Florida Bar Appointments / Vacancies
For applications and complete details, visit: www.floridabar.org
19th Circuit Appointments / Vacancies
For applications and complete details, visit: http://www.circuit19.org/careers.html
Track Legal Legislation
Information on all bills of general interest within the profession can be
found in the Bar’s “Bill Reports” at this link:
http://www.floridabar.org/DIVEXE/GCBillReport.nsf/
WDOCS?OpenView
For more detailed information on specific legislation being tracked by the
Bar, visit the Legislation Committee’s webpage on the
Bar website at this link:
http://www.floridabar.org/cmdocs/bd160.nsf/WDOCS
Martin County Ordinances
All Martin County ordinances may be found on
the County website:
www.martin.fl.us.
Click on Departments, County Attorney, County
Code & Ordinances.
See ordinance list on right side of web page
(ex: Ordinances 800-849).
38
City of Stuart Ordinances
All City of Stuart ordinances may be
found on the City
website: www.cityofstuart.us.
Click on links on the left side of the page.
Then select #12 for Municode and choose
Code of Ordinances.
The Table of Contents can be located in Part II Code
of Ordinances.
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MCBA Luncheon @
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February 6, 2015: Investiture of Victoria Griffin @ Indian River Courthouse (4:00 p.m.)
February 8, 2015: Tennis Tournament @ Mariner Sands Country Club
February 12, 2015: Probate, Trust & Guardianship Committee meets (Noon)
February20,2015:MichaelC.HeiseyInvestiture(4:00p.m.)@SLCCourthouse(JuryAssembly)
February 21-22, 2015: Canoe Trip
May 16, 2015: Annual Installation Banquet
October 30, 2015: 19th Circuit Bench Bar Conference
November 14, 2015: 4DCA 50th Anniversary Celebration
January, 2015
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39
MARTIN COUNTY BAR ASSOCIATION
PO BOX 2197
STUART, FL 34995-2197
Please Join Us for MCBA’s January 16th CLE Luncheon Meeting
Friday, January 16, 2015 (11:45 a. m.)
Kane Center, 900 SE Salerno Road, Stuart
Arugula salad with citrus and roasted almonds, chicken marsala, roasted potatoes,
haricot verts, blueberry crisp with whipped cream
*(Please indicate specialty meal if needed when you RSVP.)
Speaker: Kevin Winters, Assistant Inspector General for Investigations within NASA’s Office of
Inspector General
1 General CLE
CLE:
When:
Where:
Menu:*
RSVP:
RSVP: No later than Monday, January 12th - By 5:00 p.m.
(772) 220-8018 or via [email protected]
There is no charge for MCBA members. Guests are welcome to attend.
A $25 guest fee may be paid at the luncheon.
RSVP required for members and guests.
To keep costs down, we are only having meals prepared for the number
of MCBA members and guests who RSVP.
We would love to see you but need to know you are coming! Please RSVP.