Civil Trial Bench Bar Conference

Friday, May 20More information to

come.

SAVE THE DATE

P R O B A T E L A W

12TH JUDICIAL CIRCUIT NEWSFORECLOSURE

SAVE THE DATE

FLORIDA SUPREME C OURT

Sarasota County Bar Association

February2016VOL. 33, NO. 2

See APPELLATE, Page 5

See TESTAMENTARY, Page 4See HOA, Page 6

By JENNIFER L. GROSSO, Esq. Williams Parker

Probate litigation is a growing area of law, particularly in Florida, with an influx of new retirees relocating

here every year. When these individu-als die, their family members are often left to sort out the estate, and it’s not surprising that there are disputes regarding the assets of the decedent. Conflicts arise regarding the execu-tion of the estate planning documents, the influence of a particular family member on the decedent, and very frequently, the testamentary capacity of the decedent.

But what exactly does it mean to have testamentary capacity? We’ve all heard stories about that “crazy” aunt; maybe she wears a bathrobe to the grocery store or has daily conversa-tions with her collection of figurines. Sure, this behavior is unusual, but

Maybe she’s just quirky: Determining testamentary capacity

Jennifer L. Grosso, Esq. Williams Parker

does it mean she lacks testamentary capacity? Where do you draw the line between being quirky and being unfit to execute a will?

Section 732.501, Florida Statutes, provides, “Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.” The question of whether one is “of sound mind” so as to have testamentary capacity is often the central issue in will contests. Not surprisingly, the Florida courts have had plenty of opportunities to chime in on this issue, and have held that “[t] he term, ‘sound mind,’ means the ability of the testator ‘to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical

Keeping up with changes to Florida appellate rulesBy ART HARDY, Esq. Matthews Eastmoore

Since November 2014, the Florida Supreme Court has entered eight orders amending the Florida Rules

of Appellate Procedure. Some of the most important changes to practitio-ners are described below.

Perhaps the biggest change made in the appellate rules involves post-judg-ment motions filed in the trial court. Rules 9.020(i), “Rendition,” and Rule 9.110(l), “Premature Appeals,” were amended “to clarify the relationship between the two rules.” In re Amend-ments to Florida Rules of Appellate Procedure, 39 Fla. L. Weekly S665 (Fla. Nov. 6, 2014). Previously, post-

judgment motions were deemed aban-doned upon the filing of a notice of appeal. Following the amendments, an appeal will be held in abeyance until disposition of the post-judgment motions. Filing a notice of appeal, therefore, will not cause the trial court to lose jurisdiction to rule on autho-rized post-judgment motions.

The circumstances in which partial final judgments are immediately appealable when other claims against a party remain can often be a diffi-cult call for practitioners. The Court amended Rule 9.110(k) in an effort to clarify this situation by providing: “A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a

Art Hardy, Esq. Matthews Eastmoore

Learn to manage stress in your professional and personal lifeBy BETH G. WASKOM, Esq., Muirhead, Gaylor, Steves & Waskom PA

The SCBA invites you to attend a seminar where guest speaker Martin Hurwitz will teach practitioners

valuable techniques for maintaining a mentally healthy lifestyle. This semi-nar is process-oriented and will cycle through periods of discovery, intro-spection, sharing, and reflection. The self-discovery is accomplished through conversation, written exercises, and a sharing of practical tools. This seminar is designed and facilitated to provide a non-judgmental and open environment maximizing participants’ desire to share, explore, and learn about issues of balance and wellness necessary to improve the quality of business and personal life. The three basic themes are stress reduction, management of the client experience, and articulat-ing and aligning personal values with practice values.

Participants will learn about stress, explore and develop habits that will allow them to manage their day, discover what their personal trigger points are, learn how the physiology of the brain impacts relaxation, and learn techniques to enhance relaxation to improve productivity. The overall goal is for the participant to become more “present” and control their environment to enhance productivity, focus and balance.

This seminar will also explore how to create a mindset to align expecta-tions of lawyer and client in order to create an open, respectful, and trans-parent relationship. Methods will be identified to manage client expecta-tions, plus assessing and developing interactive listening skills. Addition-ally, this seminar will explore how to gather information, manage informa-tion, and employ and deploy infor-mation to maximize the value-added aspects of the relationship. We will engage in exercises that will help you to create a consistent client experience that feels unique to each client.

The participating lawyers will leave the seminar with a better understand-ing of their personal values and how to align them with their law practices. Each attorney will know how to iden-tify their strengths, articulate them to clients, and reflect them throughout the practice. Topics will include stress triggers, how the brain works, mind-fulness, tools for stress management and reduction, creating the client expe-rience, reframing failure, and more. Please join us for this informative and interactive presentation that will give you tools for a healthier lifestyle.

The lunch is being held on Wednes-day, March 9, noon at Michael’s on East.

separate and distinct cause of action that is not interdependent with the other pleaded claims.” In the event of a partial final judgment in which other claims are remaining against the party, the partial final judgment is appeal-able either immediately or on appeal from the final judgment in the entire case. Importantly, the Rule continues to provide that if the partial final judg-ment totally disposes of an entire case against a particular party, that party must appeal the partial final judgment within 30 days.

Rule 9.130(a)(3) lists the catego-ries of non-final orders that may be appealed to the District Courts of Appeal. The Rule has been amended

Dignitaries, family members and representatives from the legal community congratulated and paid tribute to The Hon. Brian A. Iten at his investiture ceremony as a Circuit Court Judge in the 12th Judicial Circuit. Left to right: E. Keith DuBose, Esq., President, Sarasota County Bar Association; Patricia D. Crauwels, Esq., American Board of Trial Advocates (ABOTA); Marisa J. Powers, Esq., Florida Association of Women Lawyers, Manatee Chapter; Robert Eschenfelder, Esq., President, Manatee County Bar Association; Judge Brian A. Iten; Rebecca J. Proctor, Esq., Florida Association of Women Lawyers, Sarasota Chapter; Chief Judge Charles Williams; Ed Brodsky, Esq., State Attorney, 12th Judicial Circuit; Anthony G. Ryan, Esq., President, Florida Association of Criminal Defense Lawyers (FACDL); Bruce Lee, Esq., Assistant State Attorney; James Horne, Jr., Esq., President-elect, Manatee YLD.

4th Dist. limits investors’ liability for HOA feesBy TYLER HAYDEN, Esq. Shumaker, Loop & Kendrick, LLP.

Five years ago, amid the economic downturn, the Second District Court of Appeal issued an opinion

protecting constitutional rights, while simultaneously bolstering the rights of corporate institutional lenders. See Coral Lakes Community Ass’n, Inc. v. Busey Bank, N.A., 30 So. 3d 579 (Fla. 2d DCA 2010). When a property in

foreclosure also bears a signifi-cant arrearage of unpaid home-owners’ asso-ciation (HOA) assessments, Florida Statute § 720.3085(2) requires a fore-closing lender, upon taking title to a foreclosed property, to pay the lesser of 12 months of prior HOA assessments

or 1 percent of the principal amount of the foreclosed mortgage. In Coral Lakes, the Second District held that a foreclosing lender who subsequently takes title to the foreclosed prop-erty may not be liable for any of the borrower’s past-due HOA assessments, notwithstanding the HOA statute.

The Second District’s rationale in Coral Lakes was a simple consti-tutional concern — the foreclosing lender in the case, which had executed a purchase money mortgage prior to the Florida Legislature’s enactment of the HOA statute, was entitled to rely on its vested contractual rights as contained within the language of the HOA’s governing documents. The governing documents specifically provided that a first mortgagee, which subsequently took title to a property within the HOA pursuant to a fore-closure, would bear no liability for the outstanding HOA assessments of the delinquent borrower. Such provisions are quite common in the governing documents of HOAs throughout Flor-ida and are used as a means of induc-ing banks to lend money to borrowers

Tyler Hayden, Esq. Shumaker, Loop & Kendrick, LLP.

BRIAN A. ITEN INVESTED AS CIRCUIT JUDGE

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*Unfortunately, there may be a times when an estate does not qualify for the “Royal Treatment” program due *Un*Un*Un**UnUnUnUnUnUnU*U* nUU forfoforforforforfforfoforororoo tuntuntuntuntunntttuntunnunnunnun tateateateatetateeateateateateateateateateea eateea elylylylylyly,ly,y,ly,ly,ly,ylyly,yly,, ththththhtthththhththtthththththththhthththhhthhereereereereeereereeeereereereereereereereereereerererereereeereeer mamamammaammmmmammamm y by by by by bby bbby by by by by beeeeee ae ae ae ae aeee ae aaa titititititiit mmmesmesmesmesmeemessesmesmessmmmmmmem whwhwhwhwwhwhwwwhwhwhhwwhwhww enenenneneeeneneneenenennnenenenen anannananaanaanana eestestestestesesestestesestestestestesstessstateatetetateatatateateatateateateatateateateateatea edodoedoedoeoeeoeeoedoddodododdddddd ed s ns ns ns ns ns nnns ootototoototo quaquaquaqquaqquaquauaquaquaquaqqquaquauaalifliflifliflifilifliflifififlifllififlifliffify fyy fy fy fy fy ffffyy fy fy ffy fy fyy fy fy ooroororororrroorororrrrooooo thethethethethethethethetheetheeeeheethheet eet “R“R“R“RR“RRRR“RRRRRRRoyaooyaoyaoyaoyaoyaoyaaoyao aoyay l Tl Tl TTT TTl Tl TTll TTTreareareareareareareareareareaeareareareaareareaareaattmetmetmetmetmettmetmetmtmetmetmetmtmtmetmemetmetmt et nt”nt”nt”t”t”nt”ntnt”nt prprprrprprprrprprogrogrogrogrogrogrogogrgramamamamamamammmmammmmm dududueuedueduedueueuedueddueududueeduedueeed

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.tfig rieht gniliated tsil dezimeti na htiw uoy edivorpThere’s no charge for this service and you’ll have the added satisfaction of knowing your donation will be put to good use, benefi ting the arts of our community for generations to come.

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2 February2016

BAR A SSO CIATION NEWS

T WELFTH CIRCUIT NEWS

There are many great things happening at the Booker High School Law Academy. As a

graduate of Booker High School, I am excited to see the great opportunities on the horizon for students enrolled in the Booker Law Academy. I am proud to say that our Bar has played an active role in supporting the Law Academy on many occasions. Whether it was supporting students who wished to attend the reenactment of the Brown v. Board of Education oral argument, working tirelessly with the Law Academy students to prepare for their first mock trial competition, or most notably, the SCBA’s generous contribution to the courtroom housed at the Law Academy on Booker High School’s campus, our Bar members

Investing in Sarasota’s future lawyers — our call for servicehave answered the call each time.

Soon fellow Bar members will be called upon once again to help Booker High School and the students enrolled in the Booker Law Academy. The Booker Law Academy and the SCBA Diversity Committee are hoping to provide Law Academy students a front-row seat to the practice of law. The Law Academy students would get an opportunity to observe fellow Bar members during various stages of litigation. Instead of a typical shadowing opportunity, we will try to provide the students with an opportunity to observe aspects of the legal practice during one of its more interesting phases. We hope the Law Academy students will get the opportunity to observe lawyers

SCBA PRESIDENT’S COLUMN

E. KEITH DUBOSE, Esq. Matthews Eastmoore

By CHIEF JUDGE CHARLES E. WILLIAMS

Effective Dec. 14, the 12th Judicial Circuit has hired a Guardianship Monitor to serve in Sarasota

County. Wards who are the subject of

plenary guardianships are among the most vulnerable people the court has jurisdiction over. The 12th Judicial Circuit after much thought and delib-eration feels that the Guardianship Court needs to have someone to act as the “eyes and ears” of the Court to make sure that the needs of the Ward are being met and that the guardian-ship is the least restrictive alternative.

The goals of the Guardianship Monitor are to:

Inn of Court plans 25th anniversary galaBy Patrick Dugan, Esq. Sarasota County Sheriff’s Office

In celebration of its 25th anniversary year, the Judge John M. Scheb American Inn of Court will throw a gala that will feature a documentary about the life of

the late Honorable Judge John M. Scheb.The gala will be held on May 10 at Michael’s on

East restaurant and will begin at 6 p.m. The gala is open to past and present Inn members as well as members of the public. Tickets to the gala are expected to be $100 per person and will include dinner and beverages.

The 20-minute documentary chronicles the life of Judge Scheb and the Inn’s founding. Filming is in prog-ress and includes interviews with his family members and legal contemporaries. Sponsorship opportunities for the 25th anniversary gala remain.

For sponsorship information, contact attorney Jennifer Maglio of Maglio Christopher & Toale at (941) 952-5242.

during upcoming trial periods, which would be the most opportune time to expose the students to various phases of litigation. This particular experience would give the students an opportunity to witness aspects of a trial from the voir dire process to the rendering of a verdict and everything in between.

We have always had a good working relationship with the Booker High School community, and this upcoming experience will provide just one more positive interaction with Booker High School. Booker High School’s principal, Rachel Shelley, is excited about the opportunity her students will have to once again work with members of our Bar. Each opportunity has been a tremendous

learning experience and a chance for invaluable exposure to our legal community. Students have expressed a great deal of excitement about the prospect of a career in the legal field, and this buzz is proof that our local students have a sincere interest in the legal profession. The Booker Law Academy provides a training ground for local talent wishing to someday come back to the Sarasota community to practice law and hopefully provide inspiration and support for the next generation.

I embrace every opportunity to help students attending the Law Academy at my high school alma mater, and I thank you in advance for your interest and willingness to support them when the time comes.

(1) supplement the auditing that the Clerk performs as an ordinary part of its statutory duties;

(2) independently review guardianship cases to make sure the best interests of the Ward are being met;

(3) advise the Court on a regular basis of the status of active guardianship cases; and

(4) be a clearinghouse for complaints, requests, and inquiries regarding particular guardianship cases.

Karen Rushing, the Sarasota County Clerk of Court, has agreed to assist in this effort by allowing the Court to refer particular cases to the Court Clerk auditors. The Court has

also set up a Guardianship Hotline at (855) 506-0304 to allow concerned parties to contact the Court to report any concerns regarding a guardianship case.

The Court has recently met with the local Guardianship Section of the SCBA to introduce the program and answer any questions or address any concerns about this program.

The Guardianship Monitor for Sarasota County is Dana Yawn, who previously served as Case Manager for Health Care Court. She has a bachelor’s degree in social work from the University of South Florida and a masters of social work (MSW) from Florida Gulf Coast University. For more information, please email dyawn@jud12.flcourts.org.

Twelfth Circuit hires Guardianship Monitor

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3February2016

FLORIDA BAR BOARD OF G OVERNORS REPORT

I hope everyone is having a Happy New Year. I wanted to provide the SCBA membership with an update

on recent issues that the Board of Governors has addressed. As you may be aware, this last year issues have been arising at a very quick pace, and sometimes updates are outdated by the time they are published. I plan to continue to update the Circuit on time-sensitive and major issues (like the reciprocity proposal) through articles and circuit-wide emails, in addition to the Florida Bar Board of Governors email updates that are sent after each meeting.

The Florida Bar Board of Governors met on Dec. 4. (It also meets on Jan. 29 in Tallahassee, and you will receive the Board of Governors email report of major issues that occur at that meeting shortly thereafter, and I will update you on that meeting in a subsequent article.)

The Board unanimously voted that The Florida Bar oppose term limits for judges at any level of Florida’s state court system. This position is in response to pending legislation for a constitutional amendment to impose term limits on Florida’s appellate judges and was taken after a thorough review of the issue by the Board’s Legislation Committee. The Young Lawyers Division, the Appellate Practice Section, and the Business Law Section had all voiced opposition to the proposed term limits at any level of Florida’s court system. (The Appellate Practice and Business Law Section did request to take a legislative position opposing judicial term limits with the reason being that “the pending legislation will negatively impact the quality of the appellate courts in the State of Florida.” Once the Bar adopted its position, the sections’ requests became essentially moot, as

Board of Governors rejects judicial term limits, evidentiary changessections are free to lobby the Florida Bar’s position.)

Including the above, there are vari-ous reasons, in my opinion, for the Bar’s position, a few of those are:

1. Term limits will arbitrarily remove experienced judges from the bench, negatively impacting the quality of the court system.

2. Judges develop their expertise over the years, including how to manage a caseload and become proficient in many areas of the law. The court system spends time and money on this judicial education. This will be lost if the most experienced judges are removed from the bench.

3. The pool of willing and qualified applicants to become a judge will be greatly reduced as lawyers must abandon their practice, their firm, and their clients for the judiciary and would be less willing to do so if they have to “start over” after 12 years on the bench.

4. No state imposes term limits on judges (New Mexico has an arguable exception for probate court judges who do not even have to be lawyers).

5. The term limit proposal could result in the politicization of the judicial branch.

6. The public, business community, and attorneys need order, consistency, and predictability in the law. This is undercut by increased turnover in the judiciary caused by term limits.

7. The proposal takes away the public’s right to vote for (or against) a judge when their term ends (for county/circuit judges) and takes away the retention

LAW WEEK 2016

Scott Westheimer, Esq., Governor, 12th Judicial Circuit Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec, & Westheimer

BOARD OF GOVERNORS REPORT

vote from voters for appellate judges.

The 2016 legislative session began on Jan. 12. To review The Florida Bar’s legislative positions, legislation of interest to the legal profession, weekly session updates, information about Bar advocacy, and other links for those interested in the legislative process, please visit www.floridabar.org/legislativeactivity.

The Board approved a recommendation by the Code & Rules of Evidence Committee, by a vote of 33 to 9, that the Florida Supreme Court not adopt the amendments to Florida Statutes §90.702 and §90.704, as amended by Chapter 2013-107 (regarding the Daubert standard), as rules of evidentiary procedure to the extent they are procedural. All Florida Bar members and legal organizations were given the opportunity to provide feedback on the matter to the Board by Nov. 15 for review prior to the vote. All feedback and letters received are posted at www.floridabar.org/daubertfrye along with additional information, including the Board materials and the committee’s reports. The Code & Rules of Evidence Committee submits three-year cycle reports to the Florida Supreme Court, with recommendations regarding procedural adoption of statutory substance amendments to the Code, which are reviewed and voted on by the Board of Governors before submission pursuant to Fla. R. Jud. Admin. 2.140(b). The Court will receive the report, with the Board’s vote, prior to Feb. 1.

The January issue of The Florida Bar Journal focuses on technol-ogy’s impact on the practice of law,

and is available in an online dynamic digital edition at www.floridabar.org/

journal as well as in print (which you should have received). In this issue, a diverse group of authors covered a variety of subjects of interest and concern facing the profession relating to technology. In contributing to this issue, the Board Technology Commit-tee’s goal was to awaken the thoughts of Florida lawyers to the changing landscape and to encourage using collective wisdom to guide the prac-tice of law through the technological gauntlet.

A proposed amendment to the Rules of Judicial Administration was approved, with corresponding amendments to the appellate and criminal rules, which allow limited representation in cases, define who is the lead attorney in cases, and contain procedures for associate and coverage attorneys to make appearances and withdrawals in cases. The Board also approved proposed amendments to the Family Law Rules that would end all references to Civil Procedure Rules. The proposed amendments will be submitted to the Florida Supreme Court for review and approval.

A proposed amendment to Bar Rule 4-1.5 was approved regarding the use of lien modification attorneys at the end of personal injury or wrongful death cases to handle negotiations over medical liens. Under the proposed amendment, which must be approved by the Florida Supreme Court, those attorneys could be hired, in extraordinary cases, with disclosure and written approval of the client and a judge’s approval. The judge would also be authorized to review and adjust the fees both of the main tort attorney and attorneys handling the liens.

As always, if you have any input or questions on any Bar-related issues, please feel free to call or email me.

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4 February2016

will, if, for example, the testator has an insane delusion in regard to one who is the object of his bounty, which causes him to make a will he would not have made but for that delusion. Each case turns on the specific factual circumstances and there is no uniform rule or checklist to apply to determine if someone has testamentary capacity. Evidence in the form of medical records, doctors’ testimony, observations of friends and family, and testimony of those involved in the drafting and execution of the will are all relevant and considered by the courts in making a determination regarding testamentary capacity. So even if your crazy aunt has a detailed conversation with her collection of figurines in the morning, heads out to the grocery store in her bathrobe at lunchtime, and then heads to her attorney’s office to execute her will, her will may be valid. After all, she may just be quirky.

YOUNG LAWYERS DIVISION

Last month, Jesse Butler and Hagen Brody attended the Florida Bar YLD Affiliate Outreach Conference

in St. Augustine on behalf of our YLD. We presented a grant application for our 12th Judicial Circuit Mock Trial competition. At the time of this article, I am unable to make any announcements regarding the results, but check my column in next month’s issue for an update.

This month the YLD and Civil Trial Sections are having a networking and CLE event on Feb. 11 at The Francis. The CLE component of the evening will cover software solutions to e-discovery issues, and is sponsored and presented by U.S. Legal.

As this issue goes to print, the NFL Playoffs have not begun, but I am picking the Arizona Cardinals to win it all this year. As a Gator, I’m just rooting against Cam Newton. When the Super Bowl is all over, I couldn’t be happier, because I know that baseball season is right around the corner. I love football, but baseball will always be our national pastime. The sunshine, the fresh cut grass of the field, the

diamond, watching your team, hot dog with mustard in one hand and $7 beer in the other hand, it’s a machaya. On that note, the YLD is making final preparations for our All-Bar Spring Training Outing on Wednesday, March 30, at Ed Smith Stadium. This event is open to all members of the Bar, spouses and guests. If you have never been to this event before, it is a blast. Tickets always go quick, so plan early.

Be sure to check next month for an announcement about our All-Bar St. Patrick’s Day event.

We will have a charitable component to this ever-popular social outing. Details will be forthcoming in next month’s issue. The YLD’s Law Week and Law Day Luncheon committees are actively preparing programs for later this spring. Please see the insert in this month’s Docket and sign up to volunteer for Law Week. It is an incredibly rewarding experience.

In the spirit of Health & Wellness, I have the following thoughts: I have noticed that civility in the practice of law has been a challenge recently for

ADAM B. PORTNOW, Esq. Law Office of Adam B. Portnow, P.L.

Young Lawyers Division is planning a full slate of activities YLD PRESIDENT’S COLUMN

Continued from Page 1effect of the will as executed.’ ” In re Bailey’s Estate, 122 So. 2d 243, 245 (Fla. 2d DCA 1960). Stated more simply, testamentary capacity typically requires that the testator can understand: (a) the nature and extent of his or her property; (b) the family members who would naturally receive such property; and (c) how his or her will disposes of such prop-erty.

More interesting is that courts have held a testator can have “lucid intervals” during which a person who is otherwise not of sound mind can execute a will if it’s clear the testator understands the elements listed above at the time of execution. Similarly, a person who is of sound mind can have an “insane delusion” that can lead to an invalid

TESTAMENTARY

Save the dateWe look forward to our annual St. Patrick’s Day Social coming up this month. It will be held on March 10 at Mandeville Beer Garden, 428 N. Lemon Avenue from 5:30 p.m. to 7:30 p.m. It is open to all SCBA members and promises to be a great event. Our thanks to Lit & More for sponsoring the event. Please join us for this annual get-together. Hope to see you there!

myself and many of my colleagues in the area. If you are reading this, you may not need to be reminded, but please, take these suggestions: It takes no more effort to be civil than it does to get all worked up and be unprofes-sional. It is a new year, so let’s take a positive direction in dealing with each other. It will make life better for everyone, including our clients. Re-read the Local Standards of Profes-sionalism and the Oath of Attorney; do not send that nasty email; agree to that opposing party’s continuance request when the reason is a legitimate one; advise your client that’s just the way it is, and that (to quote John Strickland) “the fair comes to town once a year and has a Ferris wheel”; do not resort to name-calling toward opposing counsel or parties; and return that phone call.

Also remember to make time for yourself. Get up to stretch, because I know you’re sitting down right now. So for a good two minutes, just stretch out, take a walk around the office, just try to clear your head for a second. You’re going to feel much

better. Remember that there will always be another dragon to slay, and we all need to do a better job taking care of numero uno. Me? I’m going to see Iron Maiden in south Florida later this month, and my wife is okay with me going, so I am an extremely happy guy.

Sweetheart dealHow about a movie with your special one on Valentine’s Day? Or a gift for your hard-working staff? You can purchase Regal Entertainment movie tickets at $8.50 each, a discount to SCBA members. To place an order, email the SCBA at scba@sarasotabar.com. Order early, as supplies are limited.

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5February2016

SCBA NEWS

APPELLATEContinued from Page 1to include non-final orders that find, as a matter of law, that a party: (1) is not entitled to immunity under section 768.28(9), Florida Statutes; or (2) is not entitled to sover-eign immunity. The Rule was also amended and reworded with respect to family law matters and permits the appeal of non-final orders concerning: (1) the right to immedi-ate monetary relief; (2) the rights or obligations of a party regarding child custody or time-sharing under a parent-ing plan; and (3) that a martial agreement is invalid in its entirety.

Rule 9.300, “Motions,” states that except for certain motions prescribed in subdivision (d) of the Rule, the service of a motion tolls the time schedule of any proceed-ing in the court until disposition of the motion. The Court has amended subdivision (d) to list several additional motions that will not cause time to be tolled. These newly listed, non-tolling motions are motions for sanctions, motions relating to appeal proceedings to review a final

order dismissing a petition for judicial waiver of parental notice of termination of pregnancy, and motions for media-tion filed more than 30 days after the notice of appeal.

The Rule concerning oral arguments was also amended. In appeals, Rule 9.320(a) extended the time in which oral argument may be requested until “not later than 10 days after the last brief is due to be served.” In original proceed-ings, in which petitions, responses, and replies are filed and briefs are not, Rule 9.320(b) was created to clarify that oral argument may be requested “not later than 10 days after the reply is due to be served.” Thus, parties have a slightly longer time in which they can request oral argument.

Rule 9.350, “Dismissal of Claims,” was amended to clarify that the filing of a stipulation for, or notice of, dismissal does not itself dismiss the case. Only an order of the court can accomplish dismissal. The amended Rule provides that the filing of a dismissal does act as an auto-matic stay pending further order of the Court.

Rule 9.400, “Costs and Attorneys’ Fees,” was also amended. With respect to costs, Rule 9.400(a)(2) was amended to add “any hearing or trial transcripts neces-

By ANNE MARIE RIZZO, Esq. The Law Place

Do the thoughts of chemical compounds, the periodic table, analytical chemistry, or statistics

scare you? Did you steer away from those classes in your undergraduate coursework?

Through my practice as a lawyer, the need to understand and utilize science in my cases has become an essential component of my day-to-day work. Just as in law, the world of forensic science is an umbrella with many different categories underneath. In my practice, forensic toxicology, analytical chemistry, and pharmacology are the most commonly used disciplines. Science in your law practice is very important. Over the years, there have been many challenges by defendants to the breathalyzers used in our county. A lot of times

sary to determine the proceeding” in the list of awardable costs. Further, the Rule was amended to change the time period in which to serve a motion for costs. Formerly, the deadline was tied to the issuance of a mandate. The Rule now provides that a motion to tax costs must be served “no later than 45 days after rendition of the court’s order.” With respect to attorneys’ fees, the Rule was amended to clarify when a motion for fees must be served in the context of an original proceeding. Like the change to Rule 9.320 regard-ing oral arguments, this amendment was necessitated by the fact that briefs are not filed in original proceedings. The Court thus created Rule 9.400(b)(2), which provides that a motion for attorneys’ fees in an original proceeding must be served no later than the time for service of the petitioner’s reply to the response to the petition.

Finally, several “housekeeping” amendments were made, including a change to Rule 9.200 requiring Clerks of lower tribunals to provide the entire record, except for the trial transcript, into a single PDF file, and an amendment to Rule 9.210, “Briefs,” to provide that briefs filed in paper format are no longer permitted to be stapled or bound.

Beyond CSI: Why understanding science is important for all lawyersthese challenges become a battle of the experts. What is important in our role as attorneys is that we do not limit ourselves to just the experts. Implementing science in the preparation of our cases gives us the ability to effectively understand our experts’ opinions and the opposing party’s experts’ opinions, effectively direct and cross the expert, and most importantly, effectively convey this knowledge as applied to the law with your judge and jury. If you cannot truly understand the science, it will show in your argument. As lawyers, we have a duty to our clients to ensure the best and most competent representation we can provide, but this cannot be done if we are representing someone where science we do not understand is at the core of the case.

For example, consider a Driv-ing Under the Influence case where there is a blood sample taken from

the accused. The accused happens to be a diabetic, and there is no other evidence in the case aside from the physical signs the officer observed. The prosecutor receives a report from the Florida Department of Law Enforce-ment. The accused tested positive for morphine in addition to having a blood alcohol level of .10. These results were reported in a one-page summary sent by FDLE. Science is the heart and soul of this case. Certain critical questions must be answered in preparing an effective case. How was the blood tested? This blood was tested through two types of analytical chemistry methods called gas chro-matography and mass spectrometry. The morphine in the system is likely a metabolite as a result of a parent drug that underwent biotransformation in the body when being metabolized. The fact that the accused is a diabetic can

Anne Marie Rizzo, Esq. The Law Place

AnneMarie Rizzo is working in the lab learning about the analytical chemistry and procedures used in drug testing.See SCIENCE, Page 8

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ask for a Leadership Development form to apply. If you don’t find it on the SCBA website, please call me at (941) 475-7966, and a form will be sent to you. The Nominating Committee for SCD will be meeting before the end of January, to propose candidates for the following leadership positions that will become open in 2016–17: Secretary (officer position); Board member (two positions open).

An informal social organized by Bryan Kessler at the Venice Wine and Coffee Bar, 121 W. Venice Avenue, is scheduled on Thursday, Feb. 4, at 5:30 p.m. Please join your colleagues for drinks, light refreshments, and camaraderie. Look for the invite in your email as there will be a special announcement related to this event.

Our venerable member Skip Berg is hosting the traditional clay shoot at Knight Trail Park on March 18. Sign up early, as the event will close when the maximum number of entries has been reached. Not satisfied with just hosting this event, Skip is also hosting

SOUTH C OUNT Y DIVISION

Good news!! At the Sarasota County Commission meeting on Dec. 9, the Board approved the

expenditure of $1 million to obtain the architectural and engineering and court services planning needed for the R.L. Anderson court facility. Sarasota County staff is working toward the goal of having “not to exceed” amounts for this project to the Board by the end of April. After the Board obtains these “not to exceed” amounts, it will be in a position to place a dollar amount for the general obligation bonds to finance this project, as well as the public safety projects for the Sarasota County Sheriff’s Office (to provide a public safety campus as well as a fleet maintenance facility) for the proposed November referendum to be presented to Sarasota County citizens for approval.

The South County Division’s Courthouse Chairperson, Beth Waskom, has continued to maintain contact with county staff, who are

providing her with crucial dates for the next meetings. The first step is to hire a programmer, who will then be meeting with our Division’s representatives to obtain input for the courthouse structure to enable the County Commission to set the amount to place in the referendum for the courthouse facility. The South County Division wishes to extend its gratitude to the commissioners and the county staff members for their continuing diligence in bringing this project to reality. A very special thanks to Beth Waskom for her Herculean efforts.

Voluntary bar associations depend on their membership to provide leadership. The Sarasota County Bar Association publishes a Leadership Development form to allow interested members to apply for positions on the various boards that comprise our organization (SCBA Board of Directors, YLD Board of Directors and SCD Board of Directors). If you have an interest or feel an obligation to “do more” for our bar association, please

SOUTH COUNTY PRESIDENT’S COLUMN

KERRY MACK, Esq. The Mack Law Firm

Moving full speed ahead toward a new South County justice centerthe traditional Historic Train Depot Wine Event on April 8. This event was sold out last year, and many folks were turned away.

Skip Berg and Bryan Kessler have recently joined forces and are sharing space in their newly renovated digs on Tamiami Trail in Venice in the same complex as Skip’s former office at 1872 Tamiami Trail. This is a small legal community. Stop by and say “hi” as these two members continue to make significant contributions to the success of SCD. If you know of lawyers who have recently relocated to the SCD geographical area, please notify Brian Dean, our Membership Committee Chair.

As January 2016 flies by, it is important to continue to address health and fitness. Whether or not health and fitness continues to be a formal goal of SCBA, you should set your personal goals in this area and stick to the plan. We can’t help others until and unless we help and care for ourselves.

HOAContinued from Page 1to purchase homes within the HOA. In Coral Lakes, the court held that the subsequently enacted HOA statute could not supersede the vested contractual rights of the lender pursuant to the HOA documents.

However, a first mortgagee does not always take title at foreclosure sale. Increasingly, third-party investors obtain title. Coral Lakes and its progeny never addressed this issue — rather, the opinions that followed narrowly enforced its rationale as to mortgagees only. See Ecoventure WGV, Ltd. v. Saint Johns N.W. Residential Ass’n, Inc., 56 So. 3d 126 (Fla. 5th DCA 2011); Aventura Mgt., LLC, v. Spiaggia Ocean Condo. Ass’n, Inc., 105 So. 3d 637 (Fla. 3d DCA 2013); U. S. v. Bridgewater Cmty. Ass’n, Inc., 2013 WL 3285399 (M.D. Fla. 2013); U.S. v. Forest Hill Gardens East Condo. Ass’n., Inc., 2014 WL 28723 (S.D. Fla. 2014).

Recently, however, the Fourth District Court of Appeal finally addressed the issue of third-party investors. Now, these investors taking title to foreclosed property may also be absolved from liability for past-due assessments, notwithstanding the aforementioned HOA statute that purports to place full liability on third-party investors (as opposed to the limited liability imposed on first mortgagees). See Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Ass’n, Inc., 40 Fla. L. Weekly D1248 (Fla. 4th DCA May 27, 2015). In Pudlit, the pertinent language in Westwood Gardens HOA’s governing documents was broader than that in Coral Lakes: “The personal obligation for delinquent assessments shall not pass to his successors in title unless expressly assumed by them…” Such language would necessarily include third-party investors.

Accordingly, the court in Pudlit agreed with the third-party investor in finding that, as it did not expressly assume

the obligation of the delinquent assessments, the aforemen-tioned language absolved the investor of HOA assessment liability. In so ruling, the court reasoned that a third-party (i.e., not a party to the HOA’s governing documents) is entitled to rely on the contractual provisions contained within the governing documents as an “intended third-party beneficiary.” Id.

Further, the court opined that a third-party beneficiary’s entitlement to rely on such provisions vests at the time the governing documents are recorded, despite subsequently enacted statutes to the contrary, as such recordation is of public record and thus relied upon by third parties. Accord-ingly, even a third-party beneficiary can now raise the constitutional issue of retroactive impairment of contract, a substantial expansion from the limited holding in Coral Lakes. This ruling perhaps marks a turning point for more third-party investments at judicial foreclosure sales, just as the market and real estate prices are on the rebound.

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Can the law firm you refer your Personal injury Cases to answer yes to these 10 questions? 1. Does the attorney try cases several times each year? 2. Does the attorney have the ability to show you recent trial

results? 3. Does the attorney have over 20 years of experience working

for the insurance companies so that they have gained an insight into how to oppose and/or sue the insurance companies?

4. Is the attorney Board Certified in Civil Trial Law? 5. Is the attorney AV rated by Martindale Hubbell? 6. Does the attorney have the financial strength to take on

significant injury cases? 7. Is the attorney located in the 12th judicial circuit? 8. Will the attorney pay you a referral fee in accordance with the

rules regulating the Florida Bar on every case no matter how big or small?*

9. Is the attorney available to speak with you at any point during the referral to give you status updates as you request?

10. Is the attorney willing to take on challenging cases that other law firms or attorneys may not be willing to handle or would turn down due to the amount of work involved?

refer your Cases to the mallard law firm, beCause our answer to these 10 questions is yes.

Mallard Law Firm, P.A.889 North Washington Blvd.Sarasota, Florida 34232(P) 941-952-1682www.MallardLawFirm.com

*Rules regulating the Florida Bar permit a 25% referral fee without any involvement of the referral attorney other than making the introduction to the client. Any additional fees require court approval and involvement of the referring attorney in the handling of the personal injury matter.damian mallard, esq.

7February2016

SECTION NEWS CLERK OF THE CIRCUIT C OURT

REAL PROPERTY Chair: Sheryl A. Edwards, The Edwards Law Firm, P.L.

Zoning due diligenceJoin the Real Property Section on Thursday, Feb. 11, when city and county planners will instruct how to undertake a zoning due diligence from your desktop.

Courtney Mendez, Senior Planner for the City of Sarasota, and Donna Thompson, Zoning Administrator for Sarasota County, will log on to the county’s geographic information systems and walk members through the process of analyzing a property’s future land-use designation, current zoning, potential zoning, uses permit-ted within that zoning district as a matter of right or by special excep-tions/conditional uses, and the devel-opment standards (setbacks, minimum area/width, height restrictions, parking ratios, etc.) for that zoning district. They also will discuss how to deal with nonconformities, any traps for the unwary, etc. Dan Bailey, Esq., will moderate the session, which will conclude with a question and answer period. Attendees will be invited to ask questions during presentations.

The meeting will be held at the Sarasota Yacht Club from noon to 1 p.m. CLE has been applied for.

FAMILY LAWChair: Dana B. Keane, Esq., Keane & Keane

All your burning school-related questions answeredWhich parent does the School Board consider to be the enrolling parent when there’s no order? Who has access to school records? Of which orders should the schools receive copies? What if the opposing party tries to enroll the child in a different school without your client’s permission? How involved does the school get when the parties bring the custody fight to school? On March 1, Arthur S. Hardy, attorney for the Sarasota County School Board, and Mitchell Teitel-baum, staff attorney for the Manatee County School Board, will be speaking on these topics and many more. The attorneys will take questions after their presentation.

The luncheon will be held at noon at Florida Studio Theatre, 1265 First Street (new building on the corner of Cocoanut).

Looking back on the past year, I would like to highlight a few areas of interest. First, the most signifi-

cant decrease in filings came from two civil case types, foreclosures and traf-fic. Circuit foreclosure filings dropped 32 percent last year, to 924 cases or an average of 77 per month. Although this is the lowest it has been in years, this is still 54 percent higher than the pre-recession average of 50 new fore-closures per month.

Criminal case filings decreased 13 percent from 2104 to 2015, with criminal traffic case types showing the biggest change — a 17 percent decrease. Juvenile delinquency cases follow with a 13.8 percent decrease, misdemeanors with a 12 percent decrease, and felony cases with a 10 percent decrease.

On the flip side, civil cases mostly showed increases. County civil and

small claims courts were up 3 percent, while family court, probate and juve-nile dependency filings all increased by 4 percent. Mental health filings were up 6 percent. Guardianship, however, showed a different result with an almost 8.5 percent decrease.

Recorded documents were up 3 percent, with deeds up 9.2 percent (from 28,045 in 2014 to 30,623 in 2015), and mortgages up 24.9 percent (from 13,411 in 2014 to 16,746 in 2015), likely reflecting the regional recovery in real estate transactions.

Looking into 2016, we will launch our public Internet access to court records. AOSC 15-18 has been piloted and tested, and will be fully imple-mented upon the approval of the Flor-ida Supreme Court. We will continue to update you through the Docket and the Sarasota County Bar on this and other technology topics.

Three-year review of cases filed data CASE TYPE 2013 2014 2015CRIMINAL COUNTY COURT Misdemeanor 6,317 6,218 5,455 Criminal Traffic 6,020 5,988 4,925 CIRCUIT COURT Felony 4,748 4,710 4,238 Juvenile Delinquency 712 593 511CIVIL COUNTY COURT Civil and Small Claims 7,197 6,778 6,956 Traffic, Infractions and Parking 68,704 67,765 61,243 TOTAL 75,901 74,543 68,199 CIRCUIT COURT Foreclosures Only 2,387 1,365 924 Family Only 4,561 3,954 4,110 Other Civil 2,031 2,017 1,853 TOTAL 8,979 7,336 6,887 Probate 2,386 2,381 2,481 Guardianship 369 415 380 Mental Health 2,122 2,266 2,408 TOTAL 4,877 5,062 5,269 Juvenile Dependency 186 235 249OFFICIAL DOCUMENTS Deeds,Mortgages, RECORDS RECORDED Liens, etc 172,356 155,292 160,44

2015 Snapshot: A Year in ReviewCLERK’S CORNER

Karen E. Rushing Clerk of Court and County Comptroller

Family Law Section Chair Dana Keane thanks luncheon speakers Sharon O’Day, Esq. and Anthony Phillips, CPA, CBIZ, for their informative presentation on taxes

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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 Holly LippsEDITOR: Daniel R. Strader, Esq., Shumaker, Loop & Kendrick, LLPDESIGN AND EDITORIAL CONSULTATION: Peter M. Gentile, petermichael associates

TO SUBMIT ARTICLES: The Docket encourages submissions of interest to SCBA members. Contact the SCBA office via e-mail (scba@sarasotabar.com) or phone (861-8180) for further information. The Docket is published 10 months a year. Deadline is the first Friday of the month preceding the month of publication.TO ADVERTISE IN THE DOCKET: Please see the rate card at the Bar’s web site, sarasotabar.com, or call the office at 941-861-8180.Saint Stephen’s is an independent, college-preparatory school providing a world-class

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CLA SSIFIED ADS

NEWS OF NOTE IN MEMORIAM

n Attorneys Matthew B. Mayper and J. Allison Archbold recently made presentations at the Gulf Coast Chap-ter of the Florida Institute of CPAs. The institute offers Continuing Profes-sional Education courses to assist CPAs in meeting state license require-ments. Attendees received one hour of CPE credit per presentation.

n Julie Horstkamp, Esq., of Berlin Patten Ebling, PLLC has been reap-pointed by the Florida Bar to serve another two-year term on the Florida Realtor-Attorney Joint Commit-tee representing the 2nd Appellate District of Florida. This honor has been formally bestowed upon her in recognition of her achievements and commitment to serving the public and her profession.

n The Law Offices of Kevin T. Wells, P.A., is pleased to announce that Paul E. Olah Jr., Esq., has been named a partner in the firm, and the new firm name will be the Law Offices of Wells | Olah, P.A. Paul joined the firm in 2011, is board certified in construc-tion law by the Florida Bar, and has received an AV Preeminent rating in construction law, litigation and real estate by Martindale-Hubbell.

n Tia E. Werdell, a family law and collaborative law attorney, announces her name change to Tia E. Jensen. Her new e-mail address is Tia@TiaJensen-familylaw.com and her assistant’s is Danielle@TiaJensenfamilylaw.com. Mrs. Jensen has also opened Alterna-tive Legal Resolutions, LLC, an alter-native dispute-resolution practice for parenting coordination, mediation and guardian ad litem work.

OFFICE SPACE2389 Ringling Blvd. 1,215 sq. ft. turnkey furnished or unfurnished professional office. Excellent location, parking. $15 sq. ft. modified gross unfurnished, $16 sq. ft. modified gross furnished. Call (941) 954-0303.1432 1st St. near Whole Foods. Large office with separate office for assistant. Use of conference rooms, full kitchen, parking spot, phone system and utilities included. Join 3 other attorneys, cross referrals possible. $1,300 per month. Call Kevin at 374-1362.

EMPLOYMENTGROWING SARASOTA personal injury firm seeks associate with 2–4 years’ experience in PI and/or insurance defense. Competitive salary and benefits. Please email resume and salary requirements to Kathy@mallardlawfirm.com.Litigation Attorney: AV rated, well-established Sarasota law firm seeks Associate attorney with at least 2-plus years of experience in commercial litigation and/or civil litigation. Immediate opening. Must be an active member of The Florida Bar. The firm handles a wide variety of litigation in the areas of construction, business, real estate, mortgage foreclosure, contract law, landlord-tenant, trusts/probate, personal injury, and general commercial representation. High academic credentials and successful employment history required. Excellent communication and interpersonal skills, in addition to professional acumen, are essential. Compensation commensurate with experience. Send resume to: Fergeson, Skipper, et al, P.O. Box 3018, Sarasota, FL 34230; or info@fsskbt.com; Attn.: Firm Administrator

MISCELLANEOUSOverwhelmed? Need temporary assistance? Local attorney with over 25 years’ experience, semi-retired, available to assist you on a contract basis with research, writing, depositions, discovery, document review, trial preparation, hearings, etc. Background in civil litigation and condominium/homeowner association law. Contact vandabayliss@gmail.com.

Continued from Page 5

With scientific knowledge comes legal power.

In the legal world there are always two sides to the story, but now it is time to let science tell the objective part of the story.

LAW WEEK 2016SCIENCEgreatly impact the test result too. The observed signs by the officer may not be consistent with what the test results showed, or they may help explain certain behaviors. The two types of analytical procedures done in this testing come with an abundance of discovery that is not readily available. There can be a significant amount of information provided in the reports behind the final report given by the FDLE analyst. If we as lawyers are not knowledgeable about this information, we will not know what we are missing. Furthermore, you won’t understand what it means to apply it to your case. As prosecutors or defense attorneys, we can’t just rely upon our experts to persuasively explain these concepts to a jury.

Now, I used the example of a criminal case to really get you thinking about how science can be the heart of a case. However, this isn’t limited to just criminal cases. Sure the “CSI” cases tend to be more popular to the general population, but civil cases have science involved just as often. Personal injury cases, medical malpractice cases, family law cases requiring drug testing of parents, employment law cases involving drug testing, and product liability cases are just a handful of categories where science can be influential in the case. For example, consider a case involving a pharmaceutical drug that has dangerous side effects. A lawyer with no science background will understand this basic concept: the plaintiff takes a drug, the drug results in a bad effect on the plaintiff, therefore the drug is bad. However, to assess liability you will likely have to put on much more evidence than just saying the drug is bad. You need to be able to support the argument with the hows and whys. The hows and whys, that’s the SCIENCE! This applies whether you are the plaintiff or the defendant.

John J. Lyons

1927–2016

By KEVIN GRIFFITH, Esq., McIntosh Law

A student was arrested and charged with theft of a computer. The motive: to sell it and use the proceeds to pay for a school field trip to Washington, D.C. Was the

student afforded her right to remain silent? Is the student guilty? Sarasota’s fifth-graders will determine the fate of this student and they need your help!

In celebration of Law Week 2016, the Young Lawyers Division of the Sarasota County Bar Association is seeking volunteer attorneys to visit fifth-grade classrooms in county schools. During these visits, the class will perform a mock trial for the attorney, based upon a script that is provided before Law Week. Following the presentation, attorneys will be asked to give feedback regarding the mock trial and take part in a brief question-and-answer session.

Law Week 2016’s theme is Miranda: More than Words. The theme will explore the procedural protections afforded to all of us by the U.S. Constitution, how the courts safe-guard these rights, and why the preservation of these prin-ciples is essential to our liberty.

Miranda is an appropriate theme this year, because 2016 marks the 50th anniversary of the Supreme Court’s deci-sion Miranda v. Arizona. The Miranda Warning has become ingrained in law enforcement and has permeated popular consciousness through countless recitations in films and television shows, yet Miranda is only part of the story when it comes to the procedures for ensuring justice.

The goal of Law Week is to raise awareness of our legal system with the public. Law Day was established in 1958 by President Dwight D. Eisenhower to mark the nation’s commitment to the rule of law. In 1961, Congress issued a joint resolution designating May 1 as the official date for celebrating Law Day, which was subsequently codified (U.S. Code, Title 36, Section 113). Every president since then has issued a Law Day proclamation on May 1 to celebrate the nation’s commitment to the rule of law.

Classroom mock trials will occur during the weeks of April 25–29 and May 2–6. Lawyers interested in volunteer-ing should contact Robert Young at ryoung@icardmerrill.com and complete the volunteer form included as an insert to this Docket.

The Right to Remain Silent: County schools, SCBA gear up for Miranda-themed Law Week