The 2010 SCBA/Richard R. Garland Diversity Scholars

August 2011
Volume 28
Number 7
All articles printed herein are the exclusive property of the Sarasota County Bar Association and may not be reproduced via any media without written permission.
The 2010 SCBA/Richard R.
Garland Diversity Scholars
By Jesse Butler, Esq., Syprett, Meshad, et al
This year the Sarasota
County Bar Association chose
two law students as recipients
of the SCBA/Richard R.
Garland Diversity Scholarship,
recently renamed in memory
of Richard Garland. Richard
was a longstanding member
of the SCBA’s Diversity
Committee, was instrumental
in the creation of the Diversity
Scholarship Fund, and was a
resolute advocate for the need
to support diversity in our legal
community.
For its fifth consecutive
year, the Sarasota County
Bar Association Diversity
Committee has selected
scholarship recipients among
applicants from Florida law
schools, based on need, merit,
and under-represented minority
status, (e.g. race, religion,
national origin, ethnicity, age,
gender, sexual orientation,
physical disability, and socioeconomic background). This
year’s recipients will each
receive a $5,000 scholarship
upon conclusion of their 10-
week internship with a local
law firm.
Valeria Obi recently
completed her first year of law
school at Stetson University.
Valeria, a Sarasota native, loves
Sarasota and wants to stay in
the area for her future career.
When asked what made her
decide she wanted to become
an attorney, Valeria’s response
was immediate- it was a female
lawyer who came and spoke
to her 7th grade class during
“career day”. The attorney
spoke to the class about what
it was like to be a lawyer, and
the qualities one must possess
to enjoy the career. Valeria
says that as she listened to the
speech, she recognized those
qualities in herself, and realized
right then that she wanted to
become a lawyer. In pursuit
of her goal, Valeria went on to
complete Booker High’s Law
Academy program, where she
was able to observe trials and
speak with numerous attorneys
about their work, furthering
her own
See Diversity p.6
Inn of Court 20th Anniversary
An Overview of Environmental Law
By Maggie Mooney-Portale, Esq., Lewis, Longman & Walker, P.A.
When I
meet people
and tell them
I am an
environmental
lawyer, the
conversation
Mooney-Portale usually sparks
a game of
“20 Questions” on what I do
and what it involves. While my
career is not as exciting as an
episode of “Whale Wars,” it does
have its moments when I can say
that that “yes, my job is pretty
cool!” Those instances most
often occur when I get out from
behind my desk to do things
like view a client’s property
and visit coastal sites, hike
through wetlands, view scrub jay
habitats, or enjoy a boat ride to
observe seagrasses impacted by
unauthorized dredging. These
are the perks of the job!
So what exactly is
“Environmental Law”?
Environmental law is a complex
combination of treaties,
conventions, regulations and
statutes and court decisions
that work together toward the
purpose of reducing the impacts
of human activity. This includes
pollution control, remediation,
resource conservation and
management.
Environmental law is a
very broad practice area that
covers the regulation of all of
our natural resources -- air,
water, land. Our natural
resources are managed and
regulated by federal, state and
local agencies including: U.S.
Army Corps of Engineers, the
U.S. Environmental Protection
Agency, the U.S. Fish and
Wildlife Service, the National
Marine Fisheries Service, the
Federal Emergency Management
Agency, the Florida Fish
and Wildlife Conservation
Commission, the Florida
Department of Environmental
Protection, Florida’s five water
management districts and local
government environmental
management departments.
Typically the subject of
Environmental Law can be
divided into two major subject
areas: (1) pollution control
and remediation, (2) resource
conservation and management.
Pollution control laws
generally are intended (often
with varying degrees of
emphasis) to protect and preserve
both the natural environment
and human health. Legal work
in this area ranges from the
assessment and remediation
of asbestos and mold to the
management of hazardous and
solid waste—from permitting for
landfill and recycling facilities
to regulation of petroleum and
chemical storage tanks, drycleaning solvents and toxic
substances control.
Resource conservation and
management laws generally
balance the benefits of
preservation against economic
interests associated with the
use of the resources. Resource
conservation and management
includes regulations that
involve water allocation and
quality, wetlands impacts and
protection, mangroves, aquatic
preserves, beaches, submerged
lands, and listed, threatened and
endangered species.
An environmental attorney’s
role in the above subject areas
is often spent assisting the
client with issues relating to: (1)
evaluating risks associated with
environmental issues in real
estate and business acquisitions;
(2) enforcement matters where
the client is being accused of
violating a See Environment p.5
Settling Up with the Taxman
By Mary E. King, Esq., Law Office of Mary E. King, P.L.
L to R: Andrew Clayton, Inn of Court President; Sen. Bob
Johnson; Hon. James Whatley; Mary Scheb; Hon. Chris
Altenbernd; Robert Scheb.
The Judge John M. Scheb American Inn of Court celebrated
its 20th anniversary at a Gala this past May 10, 2011, at the
Lido Beach Resort. The Inn of Court, which is comprised of
approximately eighty attorneys and judges from Sarasota and
Manatee Counties, is dedicated to enhancing professionalism,
civility, and ethics, in the practice of law. The Inn of Court
was deeply saddened this past year by the losses of its founding
member, esteemed Judge John M. Scheb, as well as Richard
Garland, who served as Inn Historian. The Inn was honored to
be joined on this occasion by Judge Scheb’s wife Mary, and his
son Robert Scheb. The Gala featured the ever-humorous Lamar
Matthews as Master of Ceremonies. Outgoing President Drew
Clayton welcomed the incoming President David Denkin and
guest judges Chris Altenbernd and James Whatley from the
Second District Court of Appeal.
Over
the years as
I have been
representing
clients who
have IRS
King
problems, the
IRS has been strict in its official
requirements for accepting an
Offer in Compromise (OIC).
However, with the downturn
in the economy, the IRS has
relaxed its unofficial position on
its requirements for accepting an
OIC, as well as other settlement
options. Therefore, I have seen
more clients who have been able
to qualify for an OIC.
Generally speaking, an
OIC is where the IRS accepts
less money than the taxpayer
owes to settle their outstanding
liability with the IRS. The IRS
will only accept an OIC when
all other collection alternatives
have been exhausted. Other
collection alternatives may be
a short extension of time to
pay, an installment agreement
(making monthly payments
until the debt is paid in full),
full payment of the debt or
hardship status. Hardship status
is where the taxpayer is unable
Slater Award Presented to
Carolyn Schlemmer
The 2011 Jim Slater Award for
Professionalism in Criminal Law was presented
to Carolyn Schlemmer at the Law Day
Luncheon in Manatee County on May 25, 2011.
The Award was presented to Ms. Schlemmer by
Judge Peter Dubensky and Judge Rick DeFuria
on behalf of the Judges of the 12th Judicial
Circuit. The Jim Slater Award honors attorneys
specializing in criminal law who exemplifies
the qualities that made Mr. Slater such a wellrespected attorney. Some of the past honorees
are Elliott Metcalfe, Adam Tebrugge, Jim
Dirmann, Bruce Lee and Lianne McCurry.
to pay anything against their tax
liability at the present time. It
is usually a temporary solution
due to unemployment or illness.
Finally, a taxpayer may qualify
for a bankruptcy discharge of the
tax liability.
When the IRS considers
an OIC, it is looking at the
taxpayer’s Reasonable Collection
Potential (RCP). The RCP
is how the IRS determines
whether or not a taxpayer has
an ability to pay his tax liability
in full. The RCP is based on
the taxpayer’s assets such as real
property, automobiles, bank
accounts and any other assets.
In order to come up with the
total RCP, the IRS adds the
taxpayer’s future anticipated
income and then deducts any
allowable expenses. Please note
that I stated allowable expenses.
The IRS has certain allowable
expense standards and any
expenses which are in excess of
those standards must be proven
to be necessary before the IRS
will accept them.
There are three (3)
categories of OIC’s: Doubt as
to Collectibility; Doubt as to
Liability; and Effective Tax
Administration. Doubt as
to Collectibility means that
the IRS believes that it will
not be able to collect the full
amount of the tax owed based
on the taxpayers ability to pay.
Doubt as to Liability means
that there is a legitimate doubt
that the taxpayer owes the
amount the IRS has assessed
to the taxpayer. Effective
Tax Administration is where
although there is no doubt that
the taxpayer owes the taxes
and the taxpayer could pay the
taxes, exceptional circumstances
exist which allow the IRS to
waive the amount due when
the taxpayer demonstrates that
it would create an economic
hardship.
As indicated earlier in this
article, the IRS does appear
to be trying to help struggling
taxpayers in these difficult
economic times. In fact, it
appears that the IRS is even
trying to look out for taxpayer’s
FICO scores. Traditionally,
the IRS did not care about what
their collection efforts have
done to taxpayers, their credit
reports, their ability to borrow
or their business See IRS p.4
Katie Self
Receives Medal
of Honor Award
On hand to honor
Teen Court Executive
Director Katie Self
as this year’s recipient
of The Florida Bar
Foundation’s Medal
of Honor Award were
L-R: Debbie Gigliotti,
Katie Self, Nora & John
Patterson.
Page two
August 2011
The Docket
A Challenging Year, and Another Ahead
Thankfully, the time has finally come for my last Docket
column. I want to thank everyone for all of their hard work
for the Bar Association over the last year. It has been a true
honor and privilege to serve our Bar Association which I feel
is the strongest in the state. Our Board of Directors is an
exceptionally talented group which deserves special thanks,
and I am proud to have served with them. Hunter Carroll
deserves special recognition for his extraordinary efforts on the
F. Scott Westheimer multitude of legislative issues we faced. As always, Jan Jung
Syprett, Meshad, et al did another excellent job this year as our Executive Director
and she deserves everyone’s thanks. After his coronation this
September, you will be in the well-qualified (I hope) hands of
SCBA
President-Elect Derek Byrd.
Next year will pose a new set of challenges for our Bar
President’s
Association as well as Florida’s judicial branch as a whole.
Message
The next legislative session will undoubtedly include renewed
attacks on the court system and renewed efforts to effectuate
some of the recent session’s failed proposals to weaken the judicial branch. I am sure
Derek and the Bar will have a coordinated plan in 2012 to oppose the upcoming
proposed constitutional amendment, which would impose Senate approval for
Supreme Court justices; require only a majority legislative vote to change Court Rules;
and remove the confidentiality of judicial investigations in certain proceedings. This
is a not-so-subtle attempt to weaken the judicial branch and attack the separation of
powers as mandated by the Constitution.
Further attempts to block the door to the courthouse and prohibit individuals
from their constitutional right to a jury trial will continue unless the Bar, our clients,
and the public are educated against the dangers of these constitutional attacks. I highly
recommend viewing an excellent documentary which was recently aired on HBO, Hot
Coffee, by director Susan Saladoff, which gives a very in depth view of the fictions
and falsehoods disseminated by the so-called “tort reform” movement and shows its
real purpose which is to block individuals access to the court (and jury trials). As one
expert asks, if we trust juries nationwide to determine the death penalty in criminal
cases, why does it make sense then to not trust juries to award damages in civil cases
by implementing caps or other “reform” tools? The film also has an excellent view on
“court packing” and the risks behind these endeavors. I would highly recommend that
Bar members view this film and recommend it to their friends to held educate them on
this issue.
I want to thank J. Brent Jones, who pointed out a mistake I made during my
last Legislative Update at the June Bar meeting. Two pieces of proposed legislation
eventually failed. One proposed allowing the defense ex parte interviews of claimant’s
health providers, and another would have set a new clear and convincing evidentiary
standard in medical malpractice cases to prove a breach of the standard of care for
failing to order supplemental diagnostic tests. Also, after the meeting, the Governor
used a budget veto to strike the Speaker of the House’s proposal for an “independent
review” of the court system at the cost of approximately $400,000.00.
Finally, I want to thank all the Section and Committee Chairs, Adam Portnow
and Cyndi Riddell as Docket Editors, the numerous Docket contributors, and
everyone else who devoted so much of their time and energy this year for our
Association. It was an honor to serve as your President. A special thanks also to former
Chief Judge Lee Haworth, who did an outstanding job during his term as Chief Judge
with the multitude of challenges he faced.
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SARASOTABANKRUPTCY.COM
The End of a…Year
Its very difficult to believe that I am writing my last
YLD President’s monthly update. It seems only a few weeks
ago I was meeting with Burt Romanoff to discuss plans for
the coming 2010/2011 Bar year. By the time this article is
published, Burt will have completed his long range planning
meeting and be ready to take over the direction of the YLD.
My plan as YLD President was to maintain those
programs that continued to be successes, sunset those
Jason T. Gaskill
programs that were not a successful as they once had been,
Adams and Reese LLP streamline some of the YLD processes, and revisit/revise the
governing policies for the YLD. While some of the goals
may have been a bit lofty, we were able to accomplish most
YLD
of them. The YLD continued its tradition of socials, judicial
luncheons, Law Week programs, and civics projects (a newer
President’s
tradition). The YLD ended a longstanding charity program
Message
that had become increasingly more difficult to support
and was receiving less and less participation; however, that
program was ended with the hope that the YLD could focus its charitable efforts
on developing a new charity program, which remains part of the Charitable Action
Committee’s charge. The YLD also placed the Law at the Library program back into
committee planning to be revamped for the future.
We were also able to revisit and revise our governing policies. In fact, this revisit
caused the YLD to ultimately reactivate its Sports Committee. As a result of its
reactivation, the YLD had one of the more successful events in recent memory with
the First Annual Barrister’s Kickball. It was such a success that I’m sure we can expect
the event to earn its “annual” name by throwing the second annual event this coming
bar year.
All in all, I believe it was a successful year, but I’m looking forward to sitting
in the Past-President’s chair and seeing what Burt and his Board come up with this
coming year. I would like to thank all of the YLD Board Members and committee
volunteers for their hard work throughout the year.
If you would like to participate in any YLD programs, or if you have some good
ideas for new programs, please contact…Burt.
New CD’s added to CLE library
The SCBA has updated its CD Lending Library with the 2011 version
“Maintaining a TRUSTworthy Trust Account.” The program contains a detailed
presentation of rules and expectations from The Florida Bar about how to properly
manage your trust account. Certified for 1.0 General/1.0 Ethics, the course is perfect
for anyone needing one hour of CLE credit.
A new edition to the Library is”Ethics Today and The Florida Bar…A Primer.”
This 3 disc set provides 4 credits in ethics and covers ethical practice in the real world;
ethical assistance to Florida Bar members and The Florida Bar grievance process. The
course is certified for 4.0 General/4.0 Ethics.
For a complete listing of CLE offerings, check out the SCBA’s website at www.
sarasotabar.com . Click on “Members” and look for “Continuing Legal Education”
in the drop-down menu. CDs may be checked out for a period of seven (7) business
days. If you have recently purchased CLE tapes from The Florida Bar and would like
to donate them to the SCBA, please contact us.
Page three
The Docket
August 2011
Editor’s Column
The Docket Marches On By Adam B. Portnow, Esq., Law Office of Adam B. Portnow, P.L.
As Editor this past year, my only
goal was to continue the work of my
predecessors in delivering professional,
informative, and interesting content to
Portnow our readership. Cyndi Riddell and I have
tried to deliver a quality product each
issue comprised of content we felt our colleagues would
appreciate. Thank you Cyndi for giving me peace of
mind and soliciting almost all of our content, all of our
contributing writers this past year for your time and
effort, and Jan Jung for making sure this publication
continues to roll off the printer.
This was a difficult year for our community. We
lost several dear members that I, as a young lawyer,
feel privileged to have known, even if only briefly. Our
law library lost it’s home and is crashing on a sofa at
the Selby Public Library. Budget cuts continue to be
problematic and worrisome for our Circuit and for the
Clerk’s office. The legislature sought to destroy judicial
independence, with more attacks sure to come. We
will weather these storms. The economy will start
crawling back. The NFL season will happen. Longoria
will remember how to hit the ball. Just remember, “if
the world was perfect, it wouldn’t be.” So sayeth the
great Yogi Bera.
As for the future of The Docket, I predict some
great improvements this year. Under direction of
incoming editor Jonathan Whitney, The Docket is
looking into forming an official SCBA Committee to
enhance its manpower and resources. Of course, article
submissions and ideas from our readership are always
welcome and are most appreciated.
Cyndi and I believe that this publication provides
an essential outlet for communication of information
and ideas to members of our legal community, and we
are privileged to have served as its Editors this year.
Report on the May 2011 Board of Governors Meeting By Norman Vaughan-Birch, Esq., Kirk-Pinkerton, P.A.
The Board of Governors of the
Florida Bar met on May 27, 2011.
While numerous issues were both
discussed and decided, clearly the
most controversial topic was the
recent assault on the Judicial System,
and particularly the Florida Supreme
Court.
Vaughn-Birch
President Mayanne Downs gave
a summary of the efforts undertaken by The Florida Bar.
The adjective Herculean comes to mind
immediately. She joined by President-Elect Scott
Hawkins spent weeks in Tallahassee giving testimony,
lobbying various legislators and generally trying to knock
this speeding train off the track it was on. They were
joined by Steve Metz, the Bar lobbyist, other members of
the staff and Barry Richard who acted as counsel for The
Florida Bar.
Based in part on these efforts and the steadfastness
of certain Senators the majority of the anti-court bills
were defeated, particularly the splitting of the Supreme
Court. I will not go into details about the particular
bills/proposed amendments since that was covered well
in prior articles.
I will say however that we cannot let our guard
down. There is no question that another run at revising
the Florida Supreme Court will be seen in the 2012
session. The Florida Bar will continue its philosophy
of meeting the attacks with logic and diplomacy. The
Legislature with its current demographic simply isn’t
vulnerable to brute force. Demonizing the bills’ sponsors
is also ineffective…and candidly some of the sponsors
genuinely think that the bills have merit.
The majority of the criticism heard during the
Session was that the Bar’s efforts were not being
adequately made known to the general membership. It is
difficult to give a day-by-day summary when the events
are changing hour-by-hour. The Florida Bar is working
on a communication plan, perhaps through the Bar’s
webpage, which will give us access to this information.
The Florida Supreme Court also gave the Florida
Bar a mandate to revise the advertising rules governing
its members. Perhaps the most radical change is the
permitted use of past results and non-misleading
testimonials. The package will be submitted to the
Supreme Court July 5, 2011 for consideration and
ratification.
E-service is alive and well. The Board heard
a report from Tom Hall, the Clerk of the Supreme
Court, who stated at many more counties are joining
in the process. The biggest problem is failure to redact
confidential information such as social security numbers,
etc.
The confidentiality rule is being examined and
likely will be fine-tuned in the near future so the legal
dinosaurs had better be ready for this brave new world of
electronic filing and service.
SCBA Annual Awards By Elizabeth M. Boyle, Esq.; Chair, SCBA Annual Awards Committee
Every year the SCBA has the privilege of presenting
three awards to those persons/organizations that strive to
improve our profession, not only among the membership
but in the community as well. The Annual Awards
Committee needs your assistance in recognizing those
who have given their time and talents in their tireless
efforts and extraordinary service. Please take this
opportunity to submit nominations for the following
awards:
Distinguished Community Service Award:
This award recognizes extraordinary service to the
community by a member of the Sarasota County Bar
Association.
C.L. McKaig Award: This award recognizes
extraordinary service to the Sarasota County Bar
Association by one of its members in promoting the
Association's goals, programs or functions.
Distinguished Service Award: This award
recognizes extraordinary service to the legal profession
by a layperson.
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The prestigious awards will be presented at the
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forward it to Elizabeth M. Boyle, Esq., 1750 17th Street,
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to elizabethb@gulfcoastlegal.org.
This is a great opportunity to recognize those who
have gone above and beyond the day-to-day participation
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Page four
IRS from p.1
reputations with their customers or vendors. However,
in these difficult economic times, many individuals have
trouble paying their monthly bills and most businesses
are barely keeping afloat. As a result, the IRS is now
taking a more friendly approach.
Instead of immediately filing tax liens, the
minimum amount before a tax lien will be filed will now
be $10,000. That amount will also be negotiable. Tax
liens will also be withdrawn if a taxpayer enters into an
installment agreement when he owes $25,000 or less.
This is AMAZING! Taxpayers who have been making
their payments on a regular basis can also request that
their liens be removed. It is unheard of for the IRS to
withdraw a Federal Tax lien without a tax debt being
paid off in full. Additionally, the IRS is making it easier
for small businesses to obtain Installment Agreements
in order to pay off corporate or payroll tax debt. Finally,
the IRS is making OIC’s more accessible to taxpayers.
A new streamlined OIC program is now in place,
where taxpayer’s who owe less than $50,000 and
have incomes of $100,000 may qualify. The previous
streamlined OIC program was limited to taxpayer’s who
owed less than $25,000. However, the current RCP
standards are still in place. A second OIC program for
taxpayer’s who are recently unemployed, gives the IRS
the option to consider only the taxpayer’s current income
(if any) and future earning potential. Generally, with
an OIC, the IRS must consider the taxpayer’s previous
income as well. This gives the IRS greater flexibility
in deciding whether or not to accept an OIC and will
theoretically open up the number of OIC’s accepted to a
greater number of taxpayers.
Finally, the IRS may accelerate lien relief for
taxpayer’s who need to refinance or sell their homes.
For example, in the past it usually took in excess of 45
days for a tax lien to be released. Now the time frame is
much shorter. Alternatively, in certain circumstances,
the IRS will make the tax lien secondary to the primary
lender in order for the taxpayer to be able to refinance or
sell their home for less than the amount of the mortgage.
As you can see, the IRS is making significant
efforts to assist taxpayer’s in these difficult economic
times. Whether it is making OIC’s easier to qualify
for or withdrawing tax liens, the IRS is trying to help
taxpayer’s and not make their experience so painful.
If you have a client that has a Federal tax issue,
that client needs to address the issue immediately.
Unfortunately, procrastinating only makes the problem
worse. I am happy to meet with tax clients for a
complimentary initial consultation to discuss their
options.
August 2011
The Docket
First Annual Barristers’ (Kick)Ball: The
Recap Poem By Jennifer Grosso, Esq., Williams, Parker
After months of planning, it was finally here
We had kickballs and pizza and a cooler of beer
The First Annual Barristers’ (Kick)Ball game
Where the winner would take home bragging rights and “fame”
The first round match up of lawyers, young versus old
Was a battle from which great stories could be told
It was neck and neck until the very last inning
Jason Gaskill slid head first, leading to the young
lawyers winning
On the other field, the State Attorneys lined up in the dirt
Against the Judges, intimidating in their matching black shirts
The SAO team was ready and even cheated in
Never expecting the single from Judge Berlin
Judge Roberts kept making play after play
But “The Robes” couldn’t pull it out at the end of the day
The finals pitted the Young Lawyers against the SAO crew
Inning after inning, the intensity grew
There was screaming and yelling, allegations of cheating
But what would you expect when lawyers are competing?
After a back and forth battle, the Young Lawyers took
the prize
They proudly accepted a year’s worth of bragging rights
A fun night of competition, filled with lots of laughs and cheers
We’re all anxiously awaiting “round two” next year.
OLD, L to R: Don Scarlett, Jr., Stefan Bunecky, John
Chapman, Sherry Edwards, Mark Haskins, Scott
McKay, Jason Lessinger, Audrey Bear, Steele Williams,
Jim Keeney, John Wickman, Chris Morrison
Thanks so much to everyone who participated
and those who came out to show their support. A
special thank you to Williams Parker for sponsoring
the event, to Jason Beaton and Zach Buffington for all
their hard work, and to captains Mark Haskins, Craig
Schaeffer and Judge Debra Riva. We look forward to the
competition next year!
YLD, Kneeling: Erin Barker, Dan Strader, Andrew
Boyer, Jason Gaskill, Ryan Owen. Standing: Brendan
McQuaid, Kevin Sanderson, Derrick Maguiness,
Burt Romanoff, Jeremy Halpern, Ethan Cherry, Doug
Cherry, Shane Smith
JUDGES, L to R: Judge Charlie Roberts, Judge
Maryann Boehm, Judge Rochelle Curley, Judge Donna
Berlin, Judge Lee Haworth, Bailiff Sam Mockovciak,
Bailiff Ron Young, Bailiff Chris Iorio, Bailiff Beth
Duffy, Magistrate Robert Hoffman. In the front
(crouching in front of Chris Iiorio): Amber Mockovciak
(Court Administration)
SAO back row: Amanda Gambert, Craig Schaeffer,
Jared Monohan, Michael Dear, Steve Duncan, James
Fowler, Dan Lewis, Dawn Buff, Erika Quartermaine.
Front Row: AJ Stickley, Eric Werbeck
Charles W. Ross, Esq. is a Florida Supreme Court certified
mediator for circuit civil and federal mediations. Civil
trial lawyer since 1979. Graduate of Harvard Law School
Mediation Program (1999), and Harvard Law School
Advanced Mediation Program for Lawyers (2001).
Graduate of University of North Carolina at Chapel Hill
(BA 1975; JD 1978); Phi Beta Kappa. Florida Arbitrator.
Mr. Ross has been recognized by his peers as one of
Florida’s leading mediators, with a Martindale-Hubbell
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Page five
August 2011
The Docket
Environment from p.1
federal, state or local agency environmental regulation;
(3) permitting matters where the client is aware of the
applicable federal, state or local agency regulation but
is having difficulty navigating through the permitting
process and achieving their ultimate goal; and (4)
handling litigation in administrative or other challenges
that may arise when (2) or (3) lead to unsatisfactory
results for the client.
For environmental risk evaluation, attorneys work
closely with technical consultants who determine the
facts and circumstances of potential environmental
problems. The environmental attorney then applies
knowledge of environmental law to evaluate the legal
risks and advises the client of the magnitude of their
problems and potential exposure.
In enforcement proceedings, it is incumbent on
the environmental attorney to assist the client and the
client’s consultants to work with the agency to reach an
acceptable resolution to the claims raised by the agency.
Sometimes this involves remediation, mitigation or
monetary penalties – sometimes it means directing the
agency to other responsible parties.
In permitting matters, the environmental
attorney assists the client and the client’s consultants
to move matters through the agency approval process.
Unfortunately, agencies are often seen as bureaucratic
mazes where more questions than solutions are raised by
the agency personnel. It is the environmental attorney’s
job to advocate for the requested permit, assist in the
resolution of any “issues,” keep the process moving so
the matter does not languish in a government office, and
defend any challengers to the permit.
Finally, litigation matters can arise in enforcement
and permitting matters. In the enforcement context, it
is the environmental lawyer’s responsibility to defend
against the agency’s litigation. Depending on the
agency bringing the challenge, litigation can arise in
federal court, circuit court, state administrative court
(the Florida Division of Administrative Hearings or
“DOAH”), and in local code enforcement proceedings
before a general purpose government. The environmental
attorney must raise any applicable defenses and continue
to advocate for his or her client in these changing venues.
There are additional instances where the environmental
attorney may need to intervene on behalf of non-parties
to an enforcement proceeding as an interested party,
to assist the regulatory agency and/or ensure that the
regulatory agency does not impair the interests of the
interested party through a settlement.
In permitting matters, litigation often arises when
an agency goes outside of the regulatory frameworks
and adds permitting conditions outside of the agency’s
authority, when an agency denies a permit that satisfies
the regulatory framework, or when an agency authorizes
a permit that adversely impacts your client. In these
circumstances, an environmental attorney’s role is to
challenge the agency’s decision in the appropriate venue
which is typically an administrative proceeding. On
occasion, an environmental attorney is called upon
to defend third party challengers to the issuance of a
permit, either through an administrative or court action.
Environmental law covers a broad scope of
substantive topics relating to our natural resources.
At the end of the day the practice is a combination of
regulatory and case law infused with science, social and
policy concerns. I am thankful for the opportunity to
practice in this area and to occasionally get out of from
behind the desk and business suit to wade through the
mangroves! All in a day’s work!
Post-Petition Liability in Bankruptcy Arising From Ownership of Real Estate
By Cynthia A. Riddell, Esq., Riddell Law Group
The filing of a petition for
relief under the bankruptcy code is
a significant date, as the filing date
determines what is a pre-petition debt
which is dischargeable in most cases.
This date is significant for debtors
who own real estate encumbered
Riddell
by a lien that secures a promissory
note. Filing for relief under the code
discharges the promissory note the debtor was obligated
to pay, and was also the instrument that a creditor
would rely on to pursue a deficiency judgment after a
foreclosure had been completed.
A bankruptcy filing can allow a debtor to completely
discharge the promissory note associated with that
particular piece of real estate. As part of the bankruptcy,
a debtor will state the debtor’s intention as to that piece
of real estate. Typically the debtor’s intention is to
surrender the collateral. In this scenario, a debtor does
not intend to keep the property, the property is typically
overleveraged, and the debtor has fallen behind on
mortgage payments.
What this “surrender” means in a practical sense
is that a foreclosure suit will still move forward once
the secured creditor obtains relief from the bankruptcy
automatic stay. The secured creditor moves forward to
foreclose its lien in order to take title to the collateral
and foreclose any subordinate liens. But, there will be no
right to pursue a deficiency since the promissory note has
been discharged in bankruptcy.
Liens survive most bankruptcy filings (except for
specific codes sections that allow for avoidance which is
outside the scope of this article). Surrendering collateral
essentially means the secured creditor will eventually
foreclose. What debtors must be aware of is the
potential for post petition liability that occurs from mere
ownership of real estate.
More often than not, most debtors have fallen
behind on both mortgage payments and association
assessments. These assessments continue to accrue after
the filing of the bankruptcy petition. Filing the petition
does not take the debtors name off the title to the real
estate. Therefore, until the secured creditor finishes
foreclosing and a certificate of title issues to the highest
bidder at the foreclosure sale, title is still in the name of
the debtor. This may result in the debtor having postpetition liability for the assessments that have accrued
since the bankruptcy petition filing date.
Therefore, it is paramount to discuss the possibility
of disposing of the property in the most expedient
manner after the filing of the bankruptcy petition.
One way this can be done is by asking the foreclosing
attorney for a consent judgment of foreclosure with a
foreclosure sale date scheduled shortly after entry of the
consent order. However, it may often be difficult to get
a response from foreclosure firms that prosecute these
foreclosures. If that is the case, the debtor could look at
a short sale of the real estate post-bankruptcy filing.
Additionally, a debtor who has decided to surrender
a property to the secured lender in a bankruptcy may
have also let insurance lapse. Typically a lender will
force place insurance; however, this insurance more
than likely does not have personal injury protection, and
therefore the debtor who is still owner of record may be
liable in a post-petition personal injury suit. A judgment
resulting from such a suit would not be dischargeable
in the bankruptcy filing because it occurred after the
filing date. The potential for liability arising from mere
ownership of real property during a sluggish foreclosure
can completely undermine a debtor’s fresh start,
therefore, a proper strategy to dispose of real estate is an
essential component of bankruptcy planning.
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Page six
August 2011
The Docket
Diversity from p.1
interest in the practice of law.
After graduating from Booker High, Valeria
attended Florida State University, where she doublemajored in Political Science and English, taking courses
in public policy, administration, race, and international
law. When she wasn’t studying, Valeria dedicated
practically all her free time to campus and community
organizations. As a member of the Student Government,
Valeria was on the Union Board, the Programming
Allocation Committee, and served as Deputy Secretary
of Multicultural Affairs. She also was on the Executive
Board of the Black Student Union, a member of the
College of Black Organization Leaders, and was
inducted into the Golden Key and Omnicron Delta
Kappa honor societies. She also was a Team Leader
for Jumpstart Tallahassee, where she volunteered her
time to teach preschool students. Her commitment to
student organizations has continued at Stetson, where
she is currently a student Ambassador, Treasurer of the
Black Law Student Association, and Secretary of the
Association of Women Lawyers, to name only some of
her activities.
Valeria was placed with the law firm of Norton,
Hammersley, Lopez & Skokos, P.A., where she has
felt very welcome since her first day on the job. Before
starting her internship, she had been told by professors to
expect a stressful experience. However, Valeria couldn’t
disagree more. Valeria has found her experience at
Norton Hammersley to be very rewarding, and says that
the attorneys she works with “make it easy to learn.” She
has enjoyed being exposed to different areas of the law,
which has helped her decide what areas she would like to
practice in the future. Valeria feels that this experience
will help her both in her career and in law school, and
puts her “one step ahead” of her peers.
Howard Williams, also a Stetson Law student, will
be entering into his third year of law school this Fall.
Howard was born and raised in Michigan, but has lived
in Florida since he started his undergraduate studies at
Northwood University. Howard describes himself as
having taken the “non-traditional” approach to school.
While an undergraduate student, Howard travelled back
and forth between Michigan and Florida campuses, even
as he maintained a full-time job in facility management.
Howard started working right out of high school, and
maintained his career to support himself and pay his
expenses, all while simultaneously earning a degree
in Business. After earning his degree, Howard spent
several years managing commercial cleaning services.
Eventually, Howard became a site manager for a cleanup
project in Sarasota and Pinellas Counties. It was then
that he was first introduced to Sarasota, and during his
short stay he immediately fell in love with the city. Now,
Howard hopes to return to the area to pursue his legal
career.
For as long as he can remember, Howard has seen
lawyers as “people who help people”, and for years
dreamed of becoming an attorney. Howard says that
although he was moving up and up in his career before
law school, it wasn’t fulfilling. He wanted to feel like
he was having a direct impact on people’s lives. He
eventually decided to take the bold move of giving up
his career to pursue his dream, and he has absolutely no
regrets for that decision. Howard has enjoyed his time
Gulfcoast Legal Services, Holland & Knight,
LLP, awarded $350,000 in FDUTPA case
In an October 2009
jury case, Gulfcoast Legal
Services, won $93,407 for
Wanda Costa, a 60 year
old, North Port woman
who was scammed out of
her home by Gideon Rechnitz, who operated a foreclosure
rescue enterprise which has victimized scores of Tampa
Bay families. Rechnitz and others duped Costa into
signing over the deed to her house, while leaving her liable
for the mortgage, and charging her thousands of dollars in
bogus “commissions.”
On June 27, 2011, Elizabeth Boyle and the team of
volunteer attorneys who worked on the case, including
Holland & Knight LLP, which assisted in the defense of
the appeal, sought and were awarded legal fees and costs in
at Stetson, and is the President of the Black Law Student
Association, and is a Student Member of the Jacobs Inn
of Court. One of his most memorable experiences from
Stetson is travelling to the Caribbean to participate in
a Moot Court Competition. When he first entered law
school, Howard thought he may go into criminal law.
However, his experience this summer is broadening his
horizons, and he now is very interested in practicing
family law.
Howard is interning with the Law Offices of
Ingram, Murphy & Rudd, P.L.. Howard has been kept
very busy, and you can tell he is genuinely grateful for
being included by the firm in various hearings and
depositions, and generally being made to feel like he is
actively involved in the firm’s practice. Howard enjoys
working in Sarasota, and is extremely happy that he
has been given this opportunity through the Diversity
Scholarship program. He says that this experience
helped his confidence, and “puts into perspective” what
he has learned as a student. Howard says his internship
has shown him that the practice of law is different than
the “theory” he learns as a law student, and he is thrilled
to be working with “really amazing people”. He believes
his experience will help him in his 3L year, but even
more so when he graduates and has to make a transition
into his career as an attorney.
It’s back…
again!!! The
Sarasota County
Bar Association
2011 Golf Tournament.
the amount of $350,000.00.
For the past five years, Gulfcoast Legal Services
worked steadily on Costa’s case, logging in over 1,000
hours of legal services, which culminated on October
1, 2009, when a Sarasota jury found that Rechnitz had
violated a new section of Florida’s Deceptive and Unfair
Trade Practices Act directed at those in the foreclosure
rescue business who seek to dupe, swindle and cheat
homeowners in foreclosure. Rechnitz and the other
defendants appealed the verdict which was recently upheld
by the Second District Court of Appeal of Florida.
Ms. Boyle and volunteer attorney Jim McDonald were
recognized for their work on this and related cases by The
Florida Bar Foundation with one of three 2010 Goldstein
Awards which recognizes excellence in civil legal aid
impact cases.
Why putter around the office, when you can
putter at the SCBA 2011 Golf Tournament scheduled
for Friday, September 16 at the Harbourside Course,
Longboat Key Club & Resort. It’s a four person scramble
format, with registration and continental breakfast from
7:30 – 8:00 am. Play will commence at 8:00 am with a
shotgun start, and will conclude with a luncheon at 1:00
pm. Prizes will be awarded for 1st, 2nd and 3rd place
foursomes, longest drive and closest-to-pin.
The 2011 Golf Tournament is sponsored by the
Diversity Committee, with proceeds benefiting the
SCBA/Richard Garland Diversity Scholarship Program.
Several sponsorships are available including the
Continental Breakfast, Beverage Cart and Hole sponsor.
What a great way to link up with fellow lawyers and
friends on the golf course to support this worthy cause.
A registration flyer is included in this issue.
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JRC J. Richard Caskey, P.A.
ESTATE AND TRUST LITIGATION•PROBATE LAW
• MEDIATION
Florida Supreme Court Certified Circuit Mediator
Serving the Sarasota Area in Mediation of:
x Estate and Trust Disputes
x Probate Litigation
J. Richard Caskey, Esquire
305 S. Magnolia Avenue • Tampa, FL 33606
No charge for travel to Sarasota or Manatee County.
813-443-5709 • jrc@caskeylaw.com • www.caskeylaw.com
Page seven
The Docket
Help Us Help You to File it Correctly.
Section News
Pleading Captions and Case Numbers
Family Law
Co-Chairs: Sharon O’Day, Esq., Kirk-Pinkerton, P.A. & Barbara J. Ingram, Esq.,
Ingram, Murphy & Rudd, P.L.
2011 Legislative Update
Come join your fellow practitioners on Tuesday, August 30, noon, at Marina Jack’s
for a “2011 Legislative Update” presented by Attorneys Lisa J. Kleinberg and Janella
K. Leibovitz. Topics will include: Major changes to the alimony statutes, and rule
updates. A reservation flyer is enclosed.
Anthony J. Abate (Tony), Esq.
and Carmen R. Gillett, Esq
spoke on the topic of “Joining a
Vital Third Party in Dissolution
Actions” at the June 21 Family
Law Section Luncheon.
Real Property Section
Chair: Michelle L. Hermey, Esq., Fergeson, Skipper, Shaw, Keyser, Baron & Tirabassi
Section Announces Meetings for August & September: Legal Assistants Invited to
Attend
FIRPTA Update
Renea M. Glendinning, CPA and shareholder with Kerkering, Barberio &
Co., will give a presentation on the Foreign Investment in Real Property Tax Act
(FIRPTA). Topics include how to determine foreign status, exceptions to the
withholding, reduction in the withholding and the effect of withholding on short sales.
This course contains valuable information critical to anyone involved with real estate
closings, including attorneys, paralegals and legal assistants. CLE credits have been
applied for.
The presentation will be held on Thursday, August 25, 2011 at the Sarasota Hyatt
at 11:30 a.m. Please see reservation flyer included in this issue of The Docket.
Review of 2006 ALTA Title Policies and Endorsements
Wilhelmina (“Willie”) F. Kightlinger, Esq, Vice President, Florida State Counsel
for Old Republic National Title Insurance Company, and whose company is the
exclusive sponsor of this meeting, will provide an in depth analysis of the new 2006
ALTA Title Policies and Endorsements. The presentation is open to all attorneys,
legal assistant, and paralegals.
The luncheon will be held on Thursday, September 8, 2011 starting at noon at the
Hyatt Sarasota. To make a reservation, complete the enclosed flyer.
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GPS"MDPIPM%SVH3FIBCJMJUBUJPO
28-Day & Long Term Residential Jail Diversion Programs
DUI & Drug Court Services
Involuntary Detox Through Marchman Act
Additional Residential & Outpatient Services Available
941.366.5333
www.fsos.org
$IBOHJOH-JWFT4BWJOH'BNJMJFT
August 2011
Rushing
The Clerk of the Circuit Court is responsible for indexing and
filing all documents received into the appropriate case file. The
Rules of Court require that a case caption and case number be
included on the face of every document. Documents submitted with
multiple case numbers must be filed in compliance with the rule as
well. Upon receiving a document listing multiple case numbers, this
office will file the document in the lowest listed case number when
copies are not provided for filing in multiple case files.
Therefore, to ensure your documents are filed correctly in the proper case (or cases)
please be sure to validate that:
1. All documents filed in a case are styled correctly, as defined by the Rules of Court;
2. Documents intended to be filed in multiple cases are filed into each intended case
o When e-filing, the document should be e-filed for each case you intend to file the document in
o When filing in paper form, the document must be filed in each case
by submitting a copy of the document with the intended case number highlighted on each copy.
Probate: Recording Death Certificates and maintaining confidentiality
By Florida law, cause of death is confidential up to 50 years after the death of an
individual. There are two types of Florida death certificates: “With Cause of Death”
(long form) and “Without cause of death” (short form).
Frequently, the Clerk’s office receives Florida long form death certificates that
have been altered —using white out, tape or paper— to conceal cause of death, due to
its confidential nature. The Recorder must only record original documents or certified
copies. Altered long form death certificates do not comply with this requirement.
Therefore, the short form is appropriate for recording.
To obtain a short form death certificate from the Florida Department of Health,
visit their website at http://www.doh.state.fl.us and search for How to Order a Florida
Death Certificate.
The Real Property Section recently
presented an update about the downtown
real estate market. Speakers included:
L-R: John Harshman, President of
Harshman & Company, Real Property
Section Chair Michelle Hermey, Shaun
Merriman, CEO and Organizing Director
of Gateway Bank of Southwest Florida,
Moderator Attorney George Spector, and
Attorney John Patterson, Livingston,
Patterson, Strickland & Siegel, P.A.
Page eight
EMPLOYMENT
News of Note
Growing, AV-rated Sarasota law firm seeks Real Estate
attorney with 3-5 years experience in commercial and
residential real estate transactions. The position will
require someone with purchase/sale and leasing
experience including excellent drafting skills.
Admission to the Florida Bar is required. Competitive
salary/excellent benefit package. Contact: Sandra King,
Administrator Norton, Hammersley, Lopez & Skokos,
P.A.; sking@nhlslaw.com
Michael R. Miller and John
M. Hament, attorneys at Kunkel
Miller & Hament, recently gave
a presentation entitled “HR and
Regulatory Issues for 2011” to
the members of the Professional
Administrative Co-Employers
(PACE) at their Annual
Conference. John M. Hament
also presented a seminar entitled “2011
Employment Law Update” to Leading Edge
Financial Group Inc. and its clients.
Litigation Attorney. Sarasota “AV” rated firm seeks
an associate with minimum 2 years of trial/litigation
experience for broad litigation practice with emphasis on
multi-discipline insurance defense. Competitive salary
and benefits. Submit resume to Linda Jones, Office
Administrator, email: ljones@dglawyers.com, Dickinson
& Gibbons, P.A., 401 N. Cattlemen Rd., Suite 300,
Sarasota, FL 34232 or fax 941.366.0390.
Tannenbaum Scro, a law firm with offices in
Sarasota and Clearwater, announces that Mark
C. Hanewich and Liz Alpert have joined the
firm as partners. The firm will now be known
as TANNENBAUM SCRO HANEWICH &
ALPERT, Attorneys at Law.
OFFICE SPACE
Downtown Venice turnkey office space available in the
Snyder Law Building. Collegial atmosphere. Crossreferrals. Immediate availability. Contact Valerie
Aitken - 485-9626 or valerie@snyderlawoffice.com
The Docket is a publication of the Sarasota
County Bar Association. All articles printed
herein are the property of the Sarasota
County Bar Association and may not be reprinted
without permission.
Publisher: SCBA Executive Director, Jan Jung
Co-Editors: Adam B. Portnow, Esq., Law Office of Adam B.
Portnow, P.L., and Cynthia A. Riddell, Esq., Riddell Law
Group
Graphic & Layout Artist: Shirley Branch, ADS Design Group
The Docket encourages submissions of interest to SCBA
members. Contact the SCBA office via email (scba@
sarasotabar.com) or phone (861-8180) for further
information. The Docket is published 10 months a year.
Deadlines are the first Friday of the month preceding the
month of publication.
Attention SCBA Members!
Have you recently relocated? Changed email
carriers? Please let the Sarasota County Bar
Association know your current contact information.
Email scba@sarasotabar.com.
Correction to June’s
“Legal Aid Honors Pro Bono Attorneys” photo caption.
The following name was misprinted:
Stephen D. Rees, Jr.
Dickinson & Gibbons, P.A. is pleased to
announce that Deborah J. Blue, a shareholder in the
firm and AV-rated Martindale-Hubbell, has received
her Board Certification in Marital & Family Law by
the Florida Bar.
Downtown Sarasota Office Space for Rent. Downtown
Sarasota Office Space for Rent. Comes with
receptionist, kitchen, large and small conference rooms,
use of copy machine with unlimited copies and faxes.
Some office furniture available. Prices starting at 750/
month depending on space desired. Contact Phil at 941524-9544.
Jennifer Fowler-Hermes, an attorney at Kunkel
Miller & Hament, has recently been designated
as a Florida Supreme Court Certified Civil Court
Mediator. Ms. Fowler-Hermes practices in the
Sarasota office.
Save the Date
The Family Court Professional Collaborative,
(F.C.P.C.) is holding its 6th Annual Conference on
October 21, 2011, Lakewood Ranch Polo Grill, 8:00
am to 5:00 pm. Registration flyer will be published in
the September issue of The Docket. Program includes
Domestic Violence, Financial Issues, Ethics, Mental
Health, Mediation and current cases, Parenting
Programs and Addiction. (CLE credits applied for).
Deadline for articles for the
September issue, August 5th
LUTZ, BOBO & TELFAIR, P.A.
welcomes referrals and associations
of cases involving
Medical Malpractice,
Product Liability and
Motor Vehicle Accidents
95 1 - 1 800
Over 70 years of combined experience in handling these types of cases.
Lutz, Bobo & Telfair, P.A. is rated “AV” by Martindale-Hubbell, the nationally-recognized law firm rating service.
The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask
us to send you free written information about our qualifications and experience.
•
•
•
•
•
August 2011
The Docket
MEDIATION
D. ROBERT HOYLE, ESQ.
Florida Supreme Court Certified Circuit Civil Mediator
Florida Supreme Court Certified County Civil Mediator
Florida Arbitrator
Federal Mediator
Florida Supreme Court Certified Appellate Mediator
Harvard Law School Mediation Program
Harvard College, B.A., 1975
Capital University Law School, J.D., cum laude, 1986
Experience in disputes involving probate matters, will and trust contests, real estate,
foreclosures, homeowners associations, condominium associations, commercial
tenancies, residential tenancies, contract, business and commercial litigation.
Harrison, Kirkland, Pratt & McGuire, P.A.
1206 Manatee Avenue West
Bradenton, FL 34205
941.746-1167
drh@manalaw.com
www.floridamediators.org/robert-hoyle
In Memoriam
Jay Edgar Baily
1927 - June 27, 2011
Volunteer Drivers/Car
Donations Needed
ITNSarasota, a non-profit organization
providing affordable, individual, dignified
transportation for seniors over 60 and for visually
impaired adults of any age needs volunteer drivers
and donated cars. The program offers seniors an
alternative to driving that preserves their freedom
to buy their own groceries, shop downtown or at
the mall, enjoy the arts, and get to their doctor’s
appointments while making our roads safer and
our communities healthier.
For more information about ITNSarasota,
please call Donna Dunio at (941) 364-7529 or
visit www.itnsarasota.org.
We are Employers’ Lawyers.
Kunkel Miller & Hament is devoted exclusively to counseling
and representing management in employment law, including
defense litigation. Alert to the unique labor and employment
issues your clients face, each attorney within the firm is able
to provide legal counseling and representation in the areas
that comprise labor and employment law today.
We welcome consultations with counsel or your clients.
KUNKEL MILLER & HAMENT
Labor & Employment Law Representing Management
(800) 828-7133 • www.kmhlaborlaw.com
Offices in:
SARASOTA • TAMPA • FORT MYERS (Satellite)
• Defense Litigation
• Human
Resources Advice
• Discrimination
and Harassment
• Non-Compete
Covenants
• Unemployment
Compensation
• Employment Contracts
• Wage and
Hour Law
• Drug and
Alcohol Testing
• Union Matters
• Health Care
Employment
• OSHA
• Employee
Handbooks
• School
Employment Law
The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before
you decide, ask us to send you free written information about our qualifications and experience.