April/MAy - Clearwater Bar Association

Apr./May
2006
Columns
3 President’s Message
7 Probate
9 Letters, Faxes, Emails
11 Tax Tips and More
13 Family Law
13 Bits & Briefs
14 Young Lawyers
18 Bankruptcy
19 New & Reinstated
Members
20 Address Changes
21 The Rules Rule
23 Member Benefits
25 Quality of Life & Career
27 Classified
28 Calendar
Bar News
4 Member Benefit Update
10 Help Habitat for
Humanity
15 April Luncheon Wrap Up
16 Oyster Roast Wrap Up
Features
6 From the Bench
Visit our website:
www.clearwaterbar.org
Celebrate Law Day
May 19
C
learwater Bar members and
will be presented with the Harry T. Foguests are invited to welcome
gel trophy. Other participants in Law
Charles H. Rose, III, Assistant
Day and Law Week activities will also
Professor of Law, Stetson College of
be recognized.
Law, as keynote speaker at the 2006
Keynote speaker Charlie Rose
Law Day Luncheon and Annual Meetwill address this year’s Law Day USA
ing, Friday, May 19, at Harborview
theme of Liberty Under Law: Separate
Center. The event is hosted by corpoBranches, Balanced Powers. His dynamic
rate sponsor, Signature Bank. AddiProf. Charlie Rose and enthusiastic presentation will most
tional sponsors include Gulf Coast Business
certainly be well-received. Charlie was born in
Review, Lexis/Nexis, Stetson College of Law
Memphis, TN, and received a political science
and Thomson West.
degree from Indiana University. Having
Clearwater Bar President Susan
enlisted in the U.S. Army in 1982 he
S. Demers will host the presentagraduated as a distinguished military
tion of annual awards including the
graduate and was commissioned as a
Liberty Bell Award, the John U. Bird
Second Lieutenant in 1987.
Judicial Excellence Award, the Allen
Following military service in a
Moore Gold Badge Award, the Ralph
variety of locations, including in Berlin
Richards Award, and the President’s
when the wall fell in 1989, he attended
Awards. And lest you forget, the
Jewel White Cole Notre Dame Law School receiving a JD
coveted Oyster Roast Cup will be presented to in 1993. Then Captain Rose entered the Judge
the outstanding Oyster Roast Food Station as
Advocate Generals Corps, serving in a variety
elected by roast attendees.
of positions and graduating from the Judge
Jewel White Cole, Managing Assistant
Advocate Officer Basic and Graduate Course,
County Attorney, will be inducted as 2006and earning an LLM in Military Law with a
2007 president of the association. Other
specialization in Criminal Law in 2000. Prior
inductees include Gregory K. Showers, presito retiring from the Army in 2004 as Deputy
dent-elect; Kimberly A. Campbell, secretary;
Staff Judge Advocate at Fort Eustis, VA, he
Peter Rivellini, treasurer; Stephanie Bolton,
served as a professor of criminal law at the
junior designate director; and Joseph A.
U.S. Army’s Judge Advocate General’s School,
Corsmeier, John Davis Fernandez, and Cheryl Charlottesville, VA, for three years. Rose
Smith-Khan, as directors at large. Jeffrey
joined the Stetson faculty in 2004 and teaches
A. Albinson, Thomas J. Donnelly, L. Keith
professional ethics, trial advocacy and evidence
Meyer, Kinnear Smith and Susan Demers will and is a member of the Indiana Bar.
continue their service on the board. Outgoing
Join your colleagues for this special event
board members, Shelly M. Johnson and Donat Harborview Center, 300 Cleveland Street.
ald S. Crowell, will be recognized for their
Reservation flyers will be faxed and emailed
service to the bar.
and can be found at www.clearwaterbar.org/
In addition, the winning high school team
calendar.html. The luncheon is free to Clearwain the Young Lawyers Division’s Great Debate
See Celebrate Law Day on page 11
• April/May 2006 • RES IPSA LOQUITUR
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President’s Message
F
RES IPSA LOQUITUR • April/May 2006 • by Susan S. Demers
or the last month or so, Karen France, Jewel Cole and I have
been making preparations for me to hand over the gavel which
represents the titular leadership in the Clearwater Bar Association. I say titular since really, while the President is out front, he or
she is always backed up by an involved and interested Board of Directors which serves as resource and consultant for every decision. There
is also the committee structure which comprises the real underpinnings of our voluntary bar association. Every month committee meet- Susan S. Demers
President
ings take place that do the real work of our bar association, improving
our knowledge and providing the opportunity to develop collegial relationships with
our colleagues. Jewel tells me that her committee staffing is falling into place. For my
part, I was thrilled that we actually had enough interest in our Bar Association to have
contested elections this year. Many thanks to those of you who volunteered to work for
the CBA this next year and I hope this bodes well for continued high participation in
our organization for years to come.
While I am wrapping up my presidential duties I am also wrapping up another
semester teaching law school and paralegal students. One of my topics of discussion has
always been how to enjoy your career. I usually talk about the importance of mentors
and models and how fulfilling the opportunity to take part in professional organizations has been to me personally. As the daughter of two dedicated public servants, I
have always been aware that the servant gets more from the service than the supposed
beneficiaries but I don’t think I really focused on what I received when I “gave back” to
the profession. In my short tour of duty I have had the opportunity to sit in as excellent seasoned attorneys shared their experience and wisdom with new admittees to the
Bar—and I learned from them as well. I witnessed hours of pro bono across the desk
and many more in workshops and the People’s Law School—and once again I learned
something new each and every session. I learned quite a bit of substantive law but also
saw some excellent people skills and fine analytical approaches which I plan to apply at
the earliest opportunity.
None of these projects would have happened without the work of a small and
dedicated staff. Obviously, our fine Executive Director (and Chief Cheerleader) Karen
France is the front woman for the group but if you have not met the back-up team you
are missing out on charming and highly competent people. Linda Ward who is chief
administrative support probably answers the phone when you call. What you may not
know is that behind that warm voice is a gifted organizer not to mention someone
who can actually handle 60 registrations in a day, money and all. Leon Bui handles
technology and is largely responsible for our new website which improves every day.
He welcomes input so if you have suggestions or issues with the site, let him know. No
guarantee we can fix something immediately, but Leon certainly wishes to be working on it! Darrin Johnson is responsible for our lawyer referral service. Darrin serves as
unofficial nutritional consultant for our troops.
I owe great thanks to all of these people who have helped to make this last year such
a positive experience for me. I thank the Board for their attention to philosophical as
well as fiscal details. You will find that your dues will rise a small amount to cover a
budget shortfall. This adjustment will allow the CBA to remain fiscally sound. I thank
the committee chairs who have created the ongoing life of the organization—our section meetings, CLE offerings, and the Oyster Roast. Thanks too to our staff for making all of these events happen. And finally I wish to thank our membership for their
participation in the many worthwhile public and professional service opportunities
which our organization provides and of which we are justly proud. You are the heart
and soul of our organization and I am honored daily to be affiliated with you.
Published by
The Clearwater Bar Association, Inc.
314 South Missouri Avenue, Suite 107
Clearwater, FL 33756-5858
Telephone: (727) 461-4869
Fax: (727) 461-0063
Website: www.clearwaterbar.org
E-mail: [email protected]
O F F I C E R S – Terms Expire 2006
Susan Demers, President
Jewel White Cole President-elect
Kimberly A. Campbell, Secretary
Peter A. Rivellini, Treasurer
Shelly M. Johnson, Past President
791-2501
464-3354
461-4955
461-1818
942-0733
D I R E C T O R S – Terms Expire 2007
Jeffrey A. Albinson
813-472-7800
Thomas J. Donnelly
461-4955
L. Keith Meyer
446-8600
Kinnear Smith
446-6248
D I R E C T O R S – Terms Expire 2006
Joseph A. Corsmeier
Donald S. Crowell
John Davis Fernandez
Cheryl V. Smith-Khan
799-1688
464-3354
461-4441
464-6962
EX OFFICIO
Peter A. Sartes, YLD Pres.
Andrew B. Sasso, TFB Board of Gov.
Elizabeth R. Mannion, Foundation Pres.
Karen France, Executive Director
441-9030
725-4829
461-6100
461-4869
EDITORIAL C O M M I T T E E
Donna K. Rose, Editor
Connie R. Stephens, Assistant Editor
Leon Bui, Advertising Manager
Karen France, Production Manager
586-1554
446-8899
461-4869
461-4869
The Res Ipsa Loquitur supports participation of the membership in production
of the publication. We encourage you to
submit articles and letters. However, we
reserve the right to edit any submission and
to publish only those articles that we, in
our sole discretion, deem appropriate.
NOTE: The comments, messages, statements
and opinions, legal or otherwise, expressed in
the articles herein are exclusively those of the
author and shall not be considered to be those
of the Clearwater Bar Association, its officers,
directors, agents, this publication, its editors or
staff. Additionally, the comments, statements and
articles contained herein are general in nature and
should not be relied upon as a basis for any legal
opinion, action or conclusion on the part of the
reader with respect to any particular set of facts
or circumstances.
• April/May 2006 • RES IPSA LOQUITUR
Congratulations!
100% Club
Member Firms
T
hese firms are members of the
Clearwater Bar’s 100% Club,
demonstrating their support and
pride in their local bar association.
Awerbach & Cohn P.A.
Barrett & Barrett
Baxter, Strohauer, Mannion & Silbermann, P.A.
Boyer and Schiltz, P.A.
Law Offices of Thomas J. Donnelly
John D. Fernandez, P.A.
Freeborn & Freeborn
Golson Law Firm
Law Office of Richard D. Green
Member Benefit Update
I
Best Practices: Manage Retainers and
Collection with Electronic Payments
t is clear the future of commerce in
our country is a cashless and paperless
check society. This is becoming evident
as more and more industries begin to
accept debit, credit and other forms of electronic payments. Credit card acceptance is
slowly becoming a standard within professional services, including the legal field.
While the convenience and time savings
are beneficial to your client, the accounting aspect and complicated fee structure
are difficult for non-retail and professional
businesses, including law firms.
Gruskin & LaBerge, P.A.
Gulfcoast Legal Services, Clearwater Off.
James C. Hadaway, P.A.
Johnson Pope Bokor Ruppel & Burns LLP
Koch, Smith & Hoffman, P.A.
Kwall, Showers, Coleman & Barack, P.A.
Randall J. Love, P.A.
Macfarlane, Ferguson & McMullen
McFarland, Gould, Lyons, Sullivan & Hogan, P.A.
McGuire Law Offices
Law Office of Thomas O. Michaels, P.A.
Parker & Hafner, P.A.
Peacock & Gaffney
Richard L. Pearse, Jr., P.A.
Peebles & Gracy, P.A.
Perenich, Carroll, Perenich, Avril, Caulfield &
Noyes, P.A.
Pinellas County Attorney’s Office
Sasso & Bodolay, P.A.
Staack, Simms & Hernandez, P.A.
Tanney, Eno, Tanney, Griffith & Ingram, P.A.
As an attorney and business owner, we
realize you work hard to grow your firm.
Part of our job is to bring CBA members
quality services and provide more value
for membership. The CBA payment
program was uniquely designed to take
professional payments in a law office.
The CBA program allows you to
accept every form of payment from your
clients with the ability to separate funds
between escrow, trust and operating
accounts. This simplifies the process of
accepting a retainer or other fees via credit
Thompson & Foote, P.A.
FLORIDA BAR GRIEVANCE DEFENSE
Tinny, Meyer & Piccarreto, P.A.
Law Offices of George E. Tragos
Law firms with two or more attorneys
can now be part of the CBA 100% Club.
All it takes is for every attorney in the
firm to be a member of CBA! 100% Club
member firms will be listed in every issue
of Res Ipsa and on CBA’s website at www.
clearwaterbar.org.
Show your firm’s support and pride
in the Clearwater Bar by becoming a
member of the 100% Club. It’s easy ! Just
fax CBA a sheet of your firm’s letterhead
and a contact name to 727-461-0063, and
we will do the rest. Questions? Call CBA
at 461-4869. Find a CBA application
for your firm’s non-members at www.
clearwaterbar.org.
card. As a result, you create a convenient
payment experience for clients, which will
ultimately reduce slow pay and collection
accounts.
Ways to eliminate collections:
• Proactively collect credit card information
• Use a pre-authorization letter
• Use Visa and MasterCard as a billing
option
As the trend of professional practices
that accept credit cards increases, electronic payments will become a competitive advantage for
many firms. To help
with this process
CBA has implemented a member
benefit program in
association with
Affiniscape Merchant Solutions. Affiniscape has worked closely with a number of
members to put a system in place to accept
payments. The program offers a simple
credit card program with reduced processing rates for CBA members. All contract
commitments, programming fees, annual
fees and minimum charge requirements
have been waived.
To learn more about the CBA merchant program provided by Affiniscape
Merchant Solutions, contact Janelle at
800-644-9060, ext. 6971.
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• April/May 2006 • RES IPSA LOQUITUR
From the Bench
A
by Judge John Lenderman
The Courthouse is not the “Jerry Springer Show” theater.
t least once a year, I take a few hours to consider life and our
profession. I try to reflect on the past, present and the future
outlook. This year I am reviewing the oath we all take as lawyers. Let me give you a few excerpts I will discuss in a moment.
“I do solemnly swear:
“I will maintain the respect due to courts of justice and judicial
officers.”
“I will not counsel or maintain any suit or proceedings which
Judge Lenderman
shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land.”
“I will employ for the purpose of maintaining the causes confided to me such
means only as are consistent with truth and honor, and will never seek to mislead the
judge or jury by any artifice or false statement of fact or law.”
“I will abstain from all offensive personality and advance no fact prejudicial to
the honor or reputation of a party or witness, unless required by the justice of the
cause with which I am charged.”
“I will never reject…or delay anyone’s cause for lucre or malice. So help me God.”
Let’s look at the meaning of a few selected words and phrases:
Swear: “I really mean it”—all of the time—not just when convenient.
Respect: We are all first officers of the court. We owe the highest duty to the courts
even before our duties to our clients.
Counsel or maintain: Notwithstanding F. S. §57.105, a lawyer is obligated to follow
the same principle as a doctor—do no harm. We owe a duty to be informed and competent. We are not our clients’ barking dog.
Mislead: Know the law. Know the facts. Be true to the law and facts. Don’t interrupt. Be calm. Our courts are too sophisticated to try the really tricky tap dance and
magician show. We have a duty to play it straight with each other and the court.
Abstain from offensive personality: Return phone calls. Be polite. Never take on
your client’s anger. No name calling. Don’t ever gratuitously dishonor another lawyer, a
party, witness or judge. Remember, we are an honorable profession!
Delay: We have a duty to put forth maximum effort for every client we accept. It’s
not right to slow down and wait for “Mr. Green.” We can’t spend all our client’s money
in early posturing and then withdraw because we’ve spent the only money the client
could ever be expected to produce for fees. Would we go to a doctor who would abandon us because of a delinquent bill?
"
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These are not just words and phrases.
These words and phrases are the foundation of what we do, our role in the
big scheme of justice. These words and
phrases are, however, the floor level of
behavior. These rules, our promises, are
the foundation for the Florida Rules of
Professional Conduct. Our oath and the
FRPC are rules that form the basis for
discipline of the Bar and the Supreme
Court. They are the “must”, “shall”, “must
not” and “shall not.”
The leadership of the Bar and judiciary feel that these rules are simply not
enough. The Family Law Section has
published the Bounds of Advocacy¹ which
discuss the “should” and “should not.”
These Goals discuss a level of practice
far above the minimum required by the
FRPC. Whatever your practice, living
by these Goals and the Bar’s “Ideals and
Goals of Professionalism”² make for clear,
concise, professional advocacy.
For a moment, think of yourself as
the judge. You have one or two lawyers
acting as if they were characters in a Jerry
Springer show. Or one or both is acting as
Rambo. How do you listen to this and ascertain the law and facts to do justice? Do
you listen to the loudest; the actor who
may just be amusing himself? Think of
someone who is acting badly who might
be right. One only sees bad behavior—not
the merits of the arguments. We are all
more persuaded by Atticus Finch than the
Jerry Springer character.
Not only is highly professional
practice much more effective, it is much
less stressful on the parties, lawyers and
judges. We are under attack for some
outrageous lawyer conduct. We can and
should do better.
With Law Day upon us, we should
consider the 2006 theme—“Liberty Under
Law: Separate Branches, Balanced Powers.” All of us, judges and lawyers, are part
of that third branch of government. We
need to remember our role first as professionals; our duties to our profession and
the meaning of our oath as a lawyer.
¹www.family lawfla.org/documents/bounds.
pdf – S
²www.law.stetson.edu/excellence/litethics/
flbar.htm
Probate
A
RES IPSA LOQUITUR • April/May 2006 • by Joseph A. Corsmeier
Ethical Implications of Joint Representation in Estate Planning
ttorneys who practice in the area of estate planning are often
requested to represent both spouses. Florida Bar Ethics Opinion 95-4 addresses the potential ethical issues which may arise
when an attorney represents both spouses in estate planning and one
spouse requests the attorney to keep a confidence from the other that
negatively impacts the other spouse and the marital relationship.
The facts in Ethics Opinion 95-4 were that the attorney had
represented both spouses for many years on many personal matters,
Joseph Corsmeier
including estate planning. Both spouses had substantial individual and
jointly-held assets and had always shared information with each other and the attorney.
The attorney always met with both spouses together about their wills and they had
recently executed updated wills prepared by the attorney. The new wills, like the earlier
ones, primarily benefited the survivor for life with benefits then shared equally by
their children at the death of the survivor. Neither spouse had previously requested the
attorney to keep any information secret from the other and there was never any discussion about what the attorney would do if one spouse requested that information be kept
secret from the other spouse.
Several months after the execution of the new joint wills, the husband met alone
with the attorney and revealed that he had recently executed a codicil prepared by another law firm which provided substantial benefits to a woman with whom he had been
having an extramarital relationship. The husband wanted advice regarding the wife’s
rights of election if she survived him. He told the attorney that his wife did not know
anything about the relationship or the new codicil and prohibited the attorney from
advising the wife.
The attorney was not required to initially discuss issues regarding confidentiality at the outset of the representation since there was no objective indication that the
interests of the spouses diverged or that any conflict was reasonably likely to arise until
the husband disclosed the codicil and relationship. In addition, the joint representation
of spouses in estate planning does not automatically create a conflict of interest under
Rule 4-1.7, Rules Regulating The Florida Bar; however, the attorney must discuss any
conflicts that are apparent at the onset or become apparent during the representation.
Once the husband tells the attorney about the codicil and extramarital relationship
and prohibits disclosure to the wife, the attorney’s obligation of confidentiality to the
husband prohibits disclosure of the information to the wife. The confidentiality obligation to
the husband prevails over the duty of communication to the wife and the attorney must
immediately withdraw from representing both spouses in the estate planning
matter. The attorney must inform both
spouses that a conflict has arisen that precludes continued representation of either
spouse in the estate planning matters and
may also advise them that each should
retain separate counsel.
Attorneys should also be aware that
acquiescence to a spouse or family member’s request to keep estate planning decisions secret from the other spouse may be
grounds for legal malpractice liability. In a
recent Texas lawsuit, a law firm was found
liable by a jury for legal malpractice with
a $3 million dollar judgment in an estate
planning matter where the wife’s mother,
who was a long time client, requested the
firm to prepare a new will for her daughter cutting the husband out and making
the mother the personal representative
and beneficiary. The firm had previously
represented both spouses in preparing the
joint wills and did not advise the husband
of the changes to the wife’s will which
removed him as a beneficiary.
The better practice would seem to
be to avoid such joint representation of
spouses in estate planning, if practicable.
If joint representation is undertaken, the
attorney should initially discuss with both
spouses the potential conflict and the
attorney’s ethical obligations if one spouse
See Probate on page 9
Pinellas County Probate Division Liaison Committee Seeks Input
W
e are a group of four people
from north and south Pinellas County. Our goal is to
improve the efficiency between attorneys’
offices and the clerk’s office. Our aim is
not to complain. Our aim is to find issues that need to be resolved and address
them with the clerk’s office so that we
can work on a joint resolution.
We will meet on a quarterly basis,
and then meet with the Clerk’s office to
address the latest issues.
For our committee to be effective, we
need attorneys and legal support staff to
contact us with any problems or concerns
so that we may address them with the
clerk’s office. The Committee Members
are as follows:
nole, and works on Probate & Guardianship matters.
• Suzanne Cushman is a Wills,
Trusts and Estates Senior Paralegal at
Fisher & Sauls, P.A., in St. Petersburg.
• Sherri Stinson, Esq., Richard L.
Pearse, Jr., P.A., Clearwater. Sherri’s
practice focuses on estate administration, probate, guardianship and trust and
guardianship litigation.
• Paul A. Nelson, Esq., Paul A.
Nelson, P.A., St. Petersburg. Paul’s practice focuses on estate planning, estate
administration, probate, guardianship,
contested probate, trust and guardianship litigation, residential real estate and
elder law.
• Judy Matthews. Judy is a Legal Assistant at DeLoach & Hofstra, Semi-
Please email Suzanne Cushman at
[email protected] or fax Judy
Matthews at 727-393-5418 with your
concerns. We promise that we will bring
your concerns to the clerk’s office, and
contact you with the results.
• April/May 2006 • RES IPSA LOQUITUR
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Letters, Faxes, E-Mail
RES IPSA LOQUITUR • April/May 2006 • February 28, 2006
Dear President Demers:
Please allow me to thank your organization and its membership for the gavel I
received at my investiture last Friday. I additionally enjoyed your presentation.
Best wishes,
George M. Jirotka
March 7, 2006
W
Dear Mrs. Demers:
Thank you for participating in my Investiture on March 3, 2006. Your presence and
kind words were enjoyed by all who attended. I appreciate your support and the time
that you took to join me and my family on that special day.
Sincerely,
John Carassas, County Court Judge
March 9, 2006
W
Dear Ms. Demers:
I wish to express my appreciation for your Presentation of Gavel on behalf of the
Clearwater Bar Association. It will be proudly displayed in my chambers. Participation
in the Investiture from the local bar associations is a unique tradition in our circuit and
a special part of the ceremony.
If I can ever be of any assistance to your Association, please do not hesitate to call
upon me.
Once again, I thank you.
Sincerely,
Edwin B. Jagger
W
Jewel,
Congratulations on chairing a wonderful Oyster Roast. Of course, you looked way
too calm Saturday evening for someone in charge of such a big event. Everything went
off great. It was a wonderful time and a great time to visit with so many nice people in
such a fun and festive setting.
Thanks for all of your work to make it happen. Thanks, too, for including me on the
invitation list. I certainly enjoyed attending.
Ken Burke, Clerk of Court
Now Available at
www.clearwaterbar.org
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Contact Leon Bui, [email protected], or 727-461-4869
Probate continued from page 7
wants to secretly change the will. This
may prevent the conflict from occurring
later and will clearly advise the spouses of
the issues and duties involved. A general
conflict waiver would not cover this situation since the attorney’s duty of confidentiality prevents the disclosure to the other
spouse and creates a conflict which cannot
be resolved with disclosure and a waiver
and consent. If such a conflict arises, the
attorney must keep the spouse’s confidences and withdraw from representing
both spouses.
Joseph A. Corsmeier is an “AV” rated sole
practitioner whose office is in Clearwater,
Florida. He has been in private practice
since 1998 and served from 1990 to 1998
as a prosecutor with the Tampa office of The
Florida Bar, Department of Lawyer Regulation and as a state criminal prosecutor for the
State of Florida, Sixth Judicial Circuit from
1986 to 1990. His practice consists primarily
of representation of attorneys and professionals in admission and disciplinary matters,
and expert opinion and testimony on ethics,
malpractice, and professionalism issues.
10 • April/May 2006 • RES IPSA LOQUITUR
Clearwater Bar to Build Its Second
Habitat for Humanity House
C
ongratulations to the Clearwater
Bar Association for agreeing to
sponsor a second Habitat project!
As many of you recall, we completed a
similar project years ago that turned out
to be a wonderful benefit not only for the
members of the Bar Association, but also
for a very appreciative family who continues to enjoy their home and neighborhood!
Most of you are familiar with Habitat
for Humanity. It is an ecumenical effort to
build homes in partnership with those in
need. Homeowners are selected by Pinellas Habitat for Humanity and are required
to come up with a modest down payment
and contribute significant “sweat equity”
hours on other homes, as well as their
own. They purchase these homes through
interest-free mortgages, typically on a
30-year term. The goal is for the family
to be able to handle principal, taxes and
insurance payments in an amount of up to
$500 per month and enjoy the benefits of
home ownership. As those payments are
received by Pinellas Habitat for Humanity, the funds are used for operations and
towards the construction of other homes
in our area. Pinellas Habitat for Humanity has now completed 131 homes.
The goal for 2006 is to build 13 more,
and we hope to be one of those lucky 13!
As members of the Clearwater Bar
Association, our commitment is twofold: to raise $45,000 and to be involved
in the construction of the home. Before
the ground breaking can begin, we have
to collect 3/4ths of the funds, a total of
$33,750. In that regard, I am asking each
member of the CBA to send checks written to “Pinellas Habitat for Humanity”
and direct it to my attention at my law
office, Tanney, Eno, Tanney, Griffith &
by Tony Griffith
Ingram, P.A., 29605 U.S. 19 N.,
Suite 210, Clearwater, FL 33761.
I will be keeping track of all donations to the project and, of course,
all donations are tax deductible.
Without reference to amount, my
intention is to thank each donor
in the publication of each Res Ipsa
Loquitur.
Habitat volunteers who have assisted with the construction of
many homes for years in this area.
Once the home is built and fundraising is completed, we will have a
dedication ceremony. This will give
us an opportunity to meet the famTony Griffith ily and enjoy a unique celebration
to conclude the project.
At this point in time, I have two
specific requests. First, I need individuals to assist me on the committee for this
project. I expect that we will meet approximately once every month or two for
lunch to discuss our progress and to guide
the project along. Second, each month we
will need donations to be made towards
the effort of accumulating the $45,000 toOnce we have accumulated the
tal amount. As I mentioned at the CBA’s
$33,750, we will have a groundbreakApril 13 luncheon, the great news is that
ing ceremony to kick off the construction
we have the money! Unfortunately, it’s still
phase of this project. From that point on,
in your pockets!!
we hope to have members of the CBA sign
My personal thanks to Susan Demers
up for Saturday work days so we will have
and Karen France for their enthusiastic
at least one CBA member on each Satursupport of this project, as well as Joe Corsday who will be responsible for bringing
meier and the other members of the CBA
either staff members or friends to assist in
Board for their tremendous response.
the project. As with our previous Habitat
For any questions regarding the CBA
project, we had many local neighborhood
Habitat for Humanity Project, please convolunteers who joined in the construction
tact Tony Griffith at 727-781-8817.
work, as well as a number of dedicated
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Tax Tips and More…
RES IPSA LOQUITUR • April/May 2006 • 11
Prepayment Of Tuition - A Gift That Keeps On Giving
In Private Letter Ruling 200602002, taxpayer has six (6) grandchildren who plan to attend a private school. Taxpayer wants to prepay
the tuition for all six (6) grandchildren through high school graduation based upon the current tuition. The prepayment is not refundable
if the grandchild does not attend school. Under §2503(e)(1) of the
Internal Revenue Code (the “Code”) an amount paid as tuition to an
educational organization is a qualified transfer not treated as a gift for
Linda S. Griffin
gift tax purposes. Further, under §2611(b)(1) of the Code a generation-skipping transfer does not include a qualified transfer. The Internal Revenue Service (the “Service”) found that such prepayments would not constitute a gift and would
not constitute a generation—skipping transfer.
Advice: Grandparents who want to provide for grandchildren’s education can do so without
adverse gift or generation—skipping transfer consequences. Caution: If the child does not attend the school, the amount is not refundable.
Overstatement of Gain (and corresponding income taxes)
Taxpayer Is Not Entitled To Relief
In 1998, taxpayer died owning shares of stock. The Service disputed the stock valuation and before the dispute was resolved, the stock was sold. The estate reported a gain
on the estate’s income tax return. After the statute of limitations had closed on the
estate income tax return the same court ruled that the Service’s higher valuation of the
stock was correct. Therefore, the basis of the stock should have been higher making the
income lower, resulting in a lower income tax.
In 2004, the estate sought a refund of the taxes it overpaid and the Service denied
the claim. Although the estate income tax return was barred by the statute of limitations, the estate argued that relief was available under the mitigation provisions of the
Code. Under §1311 of the Code, an adjustment is possible when the statute of limitations has run if: (1) an error occurred in a closed tax year that cannot otherwise be corrected by operation of law; (2) a determination (ex. final court decision closing agreement) must be made for an open tax year; (3) the determination must result in a circumstance under which an adjustment is authorized; and (4) the determination must adopt a
position maintained by a party that is inconsistent with the error that has occurred.
The court noted that two other courts have held that a decision in an estate tax matter is not a “determination.” The court further found that requirement (3) above was not
met. Therefore, the mitigation provisions did not apply.
Advice: The mitigation provisions of the Code are very difficult, but if you find the statute of
limitations has run, review these sections to find out if mitigation relief will apply.
Spousal Waiver Of Rights
In a prior Tax Tips this author previously discussed Revenue Procedure 2005–24 which
addressed the spousal election against a charitable remainder trust. Under our current
elective share statute, under certain circumstances, a spouse can make an elective share
election against a charitable remainder trust. According to the Service, if a spouse has
the ability to make such an election, then the charitable remainder trust will not qualify
under the Code. The procedure provides that a charitable remainder trust created prior
to June 28, 2005 will be grandfathered as long as the spouse actually does not make an
election. Revenue Procedure 2006–15 indefinitely extends the grandfather date from
June 28, 2005 until the date Service issues further guidance.
Advice: Keep an eye on this situation and in the meantime be sure that if an elective share is
made that the spouse does not make an elective share election as to the charitable remainder trust.
Be Careful Who You Trust To Do Your Payroll
In Pediatric Affiliated, P.A., 97 AFTR 2d 2006-583, Pediatric hired a payroll service,
PAL Data. The founder of PAL Data embezzled tax payments received from Pediatric
for payment to the Service for payroll taxes. The founder was criminally prosecuted and
by Linda S. Griffin
sentenced to a prison term. Further, the
company brought a civil suit against the
founder and obtained a judgment.
The Service sent Pediatric notices of
levy for back unpaid payroll taxes and
Pediatric argued that it was not liable
because of the embezzlement. It did not
matter! The court held that reliance on an
agent was not reasonable cause (a requirement to be excused for failure to timely pay
taxes). Even when the agent embezzles the
tax payments. Pediatric bore the ultimate
responsibility to ensure its taxes were paid.
Advice: This should be a wake up call for those
attorneys and clients who depend on outside
payroll tax companies. Keep a close eye on the
returns when they are filed and check to be
sure payments are properly made.
Celebrate Law Day
continued from page 1
ter Bar members and judges and $25 for
reciprocal members, law office staff, guests
and all others. Arrive at 11:30 a.m. for a
networking social with lunch following at
12:00 noon. Thank you to Signature Bank,
our corporate sponsor, and to Gulf Coast
Business Review, Lexis/Nexis, Stetson
College of Law and Thomson West for
their support.
12 • April/May 2006 • RES IPSA LOQUITUR
Family Law
T
RES IPSA LOQUITUR • April/May 2006 • 13
by Lois A. Sears
Guardian ad Litem Update
he State of Florida Sixth Circuit Guardian ad Litem Program is available to
assign a limited number of appointments (i.e., approximately 20-30) of the
Guardian ad Litem Program in “traditional” family law cases (i.e., dissolution
of marriage, paternity, domestic violence injunctions), involving minor children. This is
in addition to appointments in dependency and related Unified Family Court cases.
As you may be aware, the statewide Guardian ad Litem Program is seeking to provide 100% representation in all dependency cases. Beginning in 2004, use of Guardian
ad Litem Program’s state resources is no longer permitted to support activities involving
cases other than dependency-related cases due to this goal. This change significantly
affected our program’s ability to assign family law cases. Recently however, due to the
support of Pinellas County, our program is able to fund a limited county staff to continue the very important services provided by certified Guardians ad Litem in contested
family law matters involving minor children.
In order for the program to be appointed, a motion must be made followed by an
“Order Appointing Guardian ad Litem Program” (form available through our office)
signed by the judge. Please forward the Order of Appointment form to Guardian ad
Litem Program, 14250 49th Street North, Clearwater, FL 33762; 727-464-6528; fax
727-464-7674. Once a certified Guardian ad Litem volunteer is identified by our office,
a notice of acceptance form will be filed with the Clerk, with copies to all parties.
Our priority is cases involving allegations of abuse and neglect, as well as domestic
violence. (Cases involving out-of-area children and/or parents are not considered the
best use of resources as, due to the limitation of utilizing state resources for family
law cases, there is no present ability to obtain courtesy visits in other areas from out of
area Guardian ad Litem Programs.) We would hope that once the certified Guardian
ad Litem accepts the case, an investigation and report with recommendations will be
filed within 90–120 days. Please note that while our volunteer Guardians ad Litem are
encouraged to observe visitation between family members, they are not permitted to
supervise visitations.
Upon filing the report and recommendations the Guardian ad Litem Program anticipates promptly filing a motion to request discharge (subject to subpoena for final hearing)
to enable the most effective use of our limited volunteer Guardian ad Litem resources.
There is no fee for the service provided by the Guardian ad Litem Program. Because
resources are limited, priority will be given to those cases involving families without the
means to pay for a private Guardian ad Litem.
In addition, attorneys who are interested in serving as pro bono Guardians
ad Litem may be certified by our program
after a brief training on program policies
and procedures. For further information, and if you have any questions, please
contact Lois Sears at 727-582-7569, or
Barbra Sessa, Assistant Director, at 727464-6528.
Bits & Briefs
• Shelly Johnson has opened a law office
in New Port Richey, Shelly May Johnson, P.A., and will continue to practice
in the areas of land use law, commercial
and construction litigation and landlord/tenant law.
• Stetson Law Review announces the
publication of its latest issue, Reflections
on and Implications of Schiavo. The
book is being sold at cost and may be
ordered through www.law.stetson.
edu/bookstore.
• Terence A. Perenich has been named a
partner of the firm Perenich, Carroll,
Perenich, Avril, Caulfield & Noyes,
P.A. His practice is dedicated to plaintiff personal injury, product liability,
medical malpractice and wrongful death
matters.
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14 • April/May 2006 • RES IPSA LOQUITUR
The Young Lawyers Division
Recognizes with Appreciation
the Following Sponsors of the
2006 Judicial Reception
Hosted by Young Lawyers Division
April 5, Roof Top Terrace, Clearwater Main Library
Abrahamson, Uiterwyk and Barnes
AmSouth Bank
Awerbach & Cohn, P.A.
Bangos Law Firm, P.A.
Baxter, Strohauer, Mannion, & Silbermann, P.A.
Michael C. Berry & Associates, P.A.
Bill Bolton, First Mutual Mortgage
Boyer and Schiltz, P.A.
Clearwater Bar Association
Law Office of James W. Dodson, P.A.
Law Offices of Thomas J. Donnelly
Dreyfus Law Firm, P.A.
John D. Fernandez, P.A.
Jennifer C. Harrington, P.A.
Johnson, Pope, Bokor, Ruppel & Burns LLP
Kantaras & Andreopoulos
Koch, Smith & Hoffman, P.A.
Kwall Showers Coleman & Barack
Macfarlane Ferguson & McMullen
Perenich, Carroll, Perenich, Avril, Caulfield & Noyes, P.A.
Douglas Prior, Attorney at Law
Skipper & Skipper, P.A.
Staack, Simms & Hernandez, P.A.
Connie R. Stephens P.A.
Tanney, Eno, Tanney, Griffith & Ingram, P.A.
Law Offices of George E. Tragos
Law Office of Lauralee G. Westine, P.A.
Elise K. Winters, P.A.
RES IPSA LOQUITUR • April/May 2006 • 15
Law Office Staff Recognition Day—April 13 Member Luncheon
L to R: Law office staff Sandi Rooney, Past President Elise
Winters and Claire Luten. Claire was recognized with the
Foundation’s Excellence in Pro Bono Award.
L to R: Judge John Carassas and Bill Pontrello. Bill was recognized with the Foundation’s Excellence in Pro Bono Award.
Honeybear is a greeter at Linda
Griffin’s law office.
Schatzie models the latest in canine coutere
with Bob Walker.
Honey and Spooky spend their days as
greeters at Jacqui and Dean Hoolihan’s law office.
L to R: Past President Mike McFadden and
legal assistant Laura Gottschalk.
L to R: Paralegal Vinnie Cisternas and
Kevin Kilgore.
Thank You Sponsors
Lexis Nexis
Signature Bank
Thomson West
Visit www.clearwaterbar.org/galleries.
html to view more pictures.
L to R: At Clearwater Bar’s first-ever Lawyers and Their Dogs Style Show: Kris Logan of
Fluffy Puppies and Cowboy, Bob Walker and Schatzie, Ann Kerr and Oscar, Jacqui Hoolihan
and Spooky and Honey, Linda Griffin and Honeybear.
16 • April/May 2006 • RES IPSA LOQUITUR
60th Annual Oyster Roast
Joe Huenke, right,
chats with Wil Florin. The
law firm of Florin Roebig
have generously offered
their grounds as the site
of the Oyster Roast since
1999. It’s the perfect spot!
BJ’s Oyster Bar, named
for the late Judge BJ
Driver, is always a
popular stop on the food
station tour.
It’s become a tradition for Pursuit to provide outstanding
musical entertainment at the roast.
Andre Emmenegger, Jennifer Harrington and Katherine Ramers voted for the Wild Turkeys to win the Oyster Roast Cup, since
Jennifer and Katherine were part of the group of sponsors which
also included Connie Stephens, Dean Hoolihan, Kim Campbell and
Rebecca Graham.
Bayou Bill’s Maker’s Mark is always a popular stop on the
Oyster Roast tour. Bayou Bill himself, Bill Vinson second
from right, had the able assistance of left to right Charlie Rios,
Jayme Rupert (Bill), and Lisa Chamberlin.
Being the Chair of
the Oyster Roast is
a big job, but then
so is being Clean Up
Chair or President of
the Clearwater Bar!
Left to right Jewel
White Cole, Oyster
Roast Chair; Bobby
Thompson, Clean Up Chair; and Susan Demers, CBA President, look on
as the 60th Annual Oyster Roast gets under way.
Left to right Wally Pope, Wayne Boyer and
George Tragos, enjoy the crisp evening under the
oaks with colleagues and friends.
RES IPSA LOQUITUR • April/May 2006 • 17
Clearwater Bar Association
Old Florida Bar-B-Crew sponsored
by Tinny, Meyer & Piccarreto, P.A.,
and Huenke Karoll Quinn Group of
Wachovia Securities, was back for its
second year. Left to right Joe Huenke,
Joe, Vickie and Diana Piccarreto, are
ready to serve up ribs!
Food Station Sponsors
Barney Masterson Shrimp Inn
Johnson, Pope, Bokor, Ruppel & Burns, LLP
Bayou Bill’s Maker’s Mark
Bill Vinson
BJ’s Oyster Bar
Felix Hill & Judges & Friends
Bracci’s
Young Lawyers Division
Coffee & Liqueurs
Pinellas County Trial Lawyers
Felony Chili
West Pasco Bar Association
Hooters’ Wings
Denis de Vlaming
Island Way Grill
Figurski & Harrill
The Shrimp Inn, co-sponsored by
Johnson, Pope, Bokor, Ruppel &
Burns, LLP, and Barney Masterson
Inn of Court. Inn members (left to
right) David Blum, Dawn Hulbert and
Garry Potts served up the shrimp.
Lexis Legal Addiction
Kathryn Marrero
Old Florida Bar-B-Crew
Tinny, Meyer & Piccarreto and
Huenke Karoll Quinn Group of
Wachovia Securities
Judge Lenderman,
center, took a shift roasting
oysters. Charlie Lykes and
Candy Lenderman.
Wild Turkeys
Connie Stephens, Kim Campbell,
Rebecca Graham, Jennifer Harrington,
LeAnne Lake, Kathy Ramers
Corporate Sponsors
D&D Reporting Services
Fortress Investigations, Inc.
Gulf Coast Business Review
Signature Bank
Thomson West
West Coast Radiology
Oyster Roast Co-Chairs
Jewel White Cole, Don Crowell,
Herb Langford
Special Thanks To
Florin Roebig
What would we do without the Stetson Clean Up Crew?? These law students
worked hard the entire evening, but somehow they also managed to have a
good time. It’s a thankless task. What would we do without them?!
The coveted “Oyster Roast Cup”
will be presented at the
May 19 Law Day Luncheon.
18 • April/May 2006 • RES IPSA LOQUITUR
Bankruptcy
F
by Camille J. Iurillo and Sabrina C. Beavens
Middle District Weighs In On Homestead Cap Dispute
loridians, prior to the enactment of the Bankruptcy Abuse Prevention and
Consumer Protection Act of 2005 (“BAPCPA”), enjoyed an unlimited cap on
their homestead exemption—both in and out of bankruptcy court. Among creditors there was a perception that the Bankruptcy Code contained a “mansion loophole”
in that debtors with significant debt would buy large homes in states such as Florida
which had a very liberal homestead exemption and then file bankruptcy claiming the
home as exempt. To address the problem, Congress in the BAPCPA added Section
522(p) which states, in part: …as a result of electing under subsection (b)(3)(A) to exempt property under State or local law, a debtor may not exempt any amount of interest
that was acquired by the debtor during the 1215-day period preceding the date of the
filing of the petition that exceeds in the aggregate $125,000 in value…. In short, the
BAPCPA attempted to limit the homestead exemption to $125,000 if the homestead
was purchased within 3-1/3 years of a bankruptcy filing. Any amount over the cap becomes property of the estate and is used to pay creditors unless the transfer is from the
sale of another homestead within the same state or the home is the principal residence
of a family farmer.
However, at least one court has held that the celebration among creditors was premature as 522(p) includes a fatal drafting error. In In re McNabb, 326 B.R. 785 (B.R.
D. Ariz. 2005) the court reasoned as follows: (1) 11 U.S.C. 522(b)(2) permits states to
“opt-out” of the § 522(d) federal exemptions, limiting residents to state exemptions; (2)
§ 522(p) applies to debtors who “[elect] under subsection (b)(3)(A) to exempt property
under State or local law…”; (3) debtors residing in “opt-out” states are unable to make
an “election” between state and federal exemptions; (4) therefore, § 522(p) is only applicable to states where debtors may choose between exemptions. In so holding, the
McNabb court found that § 522(p) was unambiguous as written and refused to consider
legislative history in its interpretation, even though it recognized that the result was
likely a drafting “glitch”. (Under this analysis, the only states where 522(p) would be
applicable are Texas and Minnesota.)
The victory parade for debtors was short lived however as several bankruptcy courts
issued opinions disagreeing with McNabb. See In re Kane, 336 B.R. 477 (Bankr. D.
Nev. 2006); In re Virissimo, 33 B.R. 201 (D. Nev. 2005); In re Wayrynen, 332 B.R. 479
(Bankr. S.D. Fla. 2005); and In re Kaplan, 331 B.R. 483 (Bankr. S.D. Fla. 2005). Two
lines of argument emerged from these cases: (1) “electing” as stated in § 522(p) referred
not to the election between state or federal exemption allowances, but instead referred
to “electing” to claim certain property as
exempt; (2) the definition of “electing”
under § 522(p) is ambiguous and therefore
it is necessary to rely on legislative history
which clearly demonstrates that Congress
did not intend to limit §522(p) to debtors
who live in non opt-out states. Accordingly, the majority of courts considering
this issue hold that § 522(p) is a cap on all
debtors, regardless of the state in which
they file bankruptcy.
Fortunately for debtors and practitioners in the Middle District of Florida,
this issue was presented in In re Landahl,
2006 WL 506034 (Bankr. M.D. Fla.
2006). Mr. Landahl sought to discharge
approximately $166,000 of unsecured
debt; per Mr. Landahl’s bankruptcy
schedules, the equity in his homestead
was approximately $188,000. Judge
May held that Mr. Landahl’s homestead
exemption claim was limited to $125,000,
following the reasoning of Kane, Virissimo and Kaplan, and stated it would be
“irresponsible for this Court to rule that
an amendment added to existing law after
considerable debate is inoperative in circumstances that are not clearly spelled out
either in the statute itself or in its legislative history.” Judge May concluded:
The “result of electing” phrase
does not, by its terms, compel the
conclusion that Section 522(p) is
see Bankruptcy on page 19
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RES IPSA LOQUITUR • April/May 2006 • 19
New & Reinstated Members
Welcome to the following new and reinstated members:
New & Reinstated Members:
• Arnao, Antonio R., Law Degree from Stetson College of Law 1987, Undergraduate Degree from University of South Florida 1985, P.O. Box 1128, Largo, FL 33779,
230-0376, fax 216-7949, [email protected]
• Foster, Todd A., Law Degree from Florida State University 1981, Undergraduate Degree from Florida State University 1978, Cohen, Jayson & Foster, P.A., 201
E. Kennedy Blvd., Ste. 1000, Tampa, FL 33602, 813-225-1655, fax 813-225-1921,
[email protected]
• Freeburg, Ruth E., Law Degree from State University of New York at Buffalo 2005,
Undergraduate Degree from Niagara University 2001, Larson & Larson, P.A., 11199
69th St. N., Largo, FL 33773, 546-0660, fax 545-1595, ruthfreeburg@tampabay.
rr.com
• Gross, Paul Nathan, Law Degree from South Texas 2005, Undergraduate Degree
from Florida State University 2001, Office of the Public Defender, 6th Judicial Circuit, 14250 49th St. N, Clearwater, FL 33762, 464-6620, fax 464-7080, paulgross@
wearethehope.org
• Jacobson, Justin, Emory University Class of 2007, Undergraduate Degree from University of South Florida 2003, 1034 Carlyle Lake, Decatur, GA 30033, 644-2711,
[email protected]
• Martin, Glenn L., Jr., Law Degree from Cumberland 1984, Undergraduate Degree
from Florida State University 1975, Office of the State Attorney, 6th Circuit, 14250
49th St. W., Clearwater, FL 33758, 464-6487, [email protected]
• McGraw, Richard W., Law Degree from University of Toledo 1984, Undergraduate
Degree from Ohio State 1981, 5824 Coffee Bean Dr., Clearwater, FL 33760, 536-4198
• McMillen, Cynthia J., Law Degree from Stetson College of Law 1982, Undergraduate Degree from Ohio State University 1977, Law Offices of Joseph F. Pippen, Jr.,
10225 Ulmerton Rd., #11, Largo, FL 33771, 586-3306, fax 585-4209
• Mekler, Kevin M., Law Degree from Stetson College of Law 2004, Undergraduate
Degree from Park University 2000, Zimmet, Unice, Salzman & Heyman, P.A., P.O. Box
15309, Clearwater, FL 33766, 723-3772, fax 723-1421, [email protected]
Bankruptcy continued from page 18
inoperative in Florida and other
opt-out states. That phrase can be
read in harmony with applying the
$125,000 in all states. Even if there
is an ambiguity, the conclusion from
the legislative history is inescapable—there is no expressed intent to
make the $125,000 cap operative in
some states, but not others.
Whether Congress will address the
drafting “glitch” remains in question.
Certainly if additional courts agree with
the McNabb holding, creditors and lobbyists will once again travel to Capitol
Hill and ask Congress for assistance.
At the end of the day, it is probable that
either through judicial interpretation or
an amendment to 522(p), those seeking
to engage in pre-bankruptcy planning
must factor in the 3-1/3 year limitation/$125,000 cap on the homestead
exemption before filing.
Iurillo & Associates, P.A., located in
downtown St. Petersburg, is comprised of
Camille J. Iurillo, Shareholder and Sabrina
C. Beavens, Associate. Ms. Iurill and Ms.
Beavens are very active in the St. Petersburg
Bar Association. The primary areas of practice
of the firm are Commercial and Bankruptcy
Litigation and Debtors’/Creditors’ Rights.
The Firm also counsels its clients in the areas
of Business Entity Formation, Business
Transactions and Real Estate Law. Recently,
the Firm became an authorized agent of
Attorneys’ Title Insurance Fund, Inc. and is
available to conduct real estate closings and
refinancings and to issue title insurance for
both commercial and residential properties.
• Myer, Christian A., Law Degree from
Stetson University College of Law
2003, Undergraduate Degree from
University of South Florida 2000, Law
Office of Christian Myer, P.A., 12645
49th St. N., Ste. 100, Clearwater, FL
33762, 571-1919, fax 571-1991, [email protected]
• O’Neill, Margaret E., Law Degree
from Northeastern University School of
Law 1980, Undergraduate Degree from
University of North Dakota 1975, Law
Office of Margaret E. O’Neill, P.O.
Box 1365, Tarpon Springs, FL 34688,
510-427-8141, fax 938-6469, moneill@
justice.com
• Phelps, Michele, Law Degree from
Stetson College of Law 2004, Undergraduate Degree from Florida State University 2000, 10901 Brighton Bay Blvd.
N.E., #7208, St. Petersburg, FL 33716
• Pierce, John D., Law Degree from
Thomas Cooley 2001, Undergraduate Degree from Western Michigan
University 1995, Law Office of Timothy
Schuler, 9075 Seminole Blvd., Seminole, FL 33772, 398-0011, fax 3196300, [email protected]
• Rooth, Ryan P., Law Degree from
Stetson College of Law 2002, Undergraduate Degree from Stetson 1998,
Office of the State Attorney, 800 E.
Kennedy Blvd,. Tampa, FL 33606, 813272-5400, [email protected]
• Stacknik, Wesley R., Law Degree from
John Marshall Law School, Wesley R.
Stacknik, P.A., 7985 113th St., Ste.
325, Seminole, FL 33772, 398-4496,
[email protected]
• Tripp, George Alan, Stetson College of
Law Class of 2007, Undergraduate Degree from Clearwater Christian 2004,
Abrahamson, Uiterwyk & Barnes, 2639
McCormick Dr., Clearwater, FL 33759,
725-9411, fax 797-0407, gtripp@law.
stetson.edu
• Trombley, Wes E. , Law Degree from
Stetson College of Law 2003, Undergraduate Degree from University of
South Florida 2000, 6th Circuit State
Attorney’s Office, 3415 W. San Luis
St., Tampa, FL 33629, 813-363-6309,
[email protected]
see New Members on page 21
20 • April/May 2006 • RES IPSA LOQUITUR
Address Changes
• Anderson, Dustin T., Dustin T. Anderson, P.A., P.O. Box 834, Palm Harbor, FL
34683, 789-0648, [email protected]
• Berg, Paul E., Paul E. Berg, P.A., 21 Seedling Dr., Safety Harbor, FL 34695-5229
• Brauer, Lynn, The Robbins Law Firm, 2639 Dr. Martin Luther King Jr. St. N., St.
Petersburg, FL 33704-2719
• Brunson, John M., 4250 Central Ave., St. Petersburg, FL 33711-1140, 828-0580,
fax 828-0583
Price Donoghue Ridenour
Certified Public Accountants
Providing
Litigation Support Services
• Charles, Susan M., 14488 Kandi Court, Largo, FL 33774, fax 596-7272
• DaFonte, Richard J., P.A., P.O. Box 6047, Clearwater, FL 33758-6047
• Damianakis, Anthone R., Peacock & Gaffney, P.A., 2348 Sunset Point Rd., Clearwater, FL 33765, 796-7774, fax 797-6317
• Faehner, Michael J., 3608 10th Lane West, Palmetto, FL 34221, 421-9630,
[email protected]
• Fair, Andrea, Wetherington, Hamilton & Harris, P.O. Box 172727, Tampa, FL
33672-0727
Business Valuations
• Giffin, Donald, Giffin & Papp, LLC, 11414 Seminole Blvd., Ste. 1, Largo, FL
33778-3200
Forensic Accounting
Wills, Trusts & Probate Accounting
Family Law & Divorce Settlements
• Griesinger, Richard C., 31119 U.S. 19 N, Palm Harbor, FL 34684, 786-9800, fax
786-0001, [email protected]
• Henderson, Samuel J., Osceola County School District, 817 Bill Beck Blvd., Kissimmee, FL 34744, 407-870-4600
• Hoffman, Larry C., 3835 Darston St., Palm Harbor, FL 34689, fax 787-6309
• Johnson, Shelly May, Shelly May Johnson, P.A., 8726 Old C.R. 54, Ste. D, New
Port Richey, FL 34653, 376-7300, fax 376-7337
Business Dispute Mediation
• LaGrande, Louis A., Akerman, Senterfitt, 401 E. Jackson St., Tampa, FL 33602,
813-209-5063, fax 813-223-2837, [email protected]
Bankruptcy Workouts
• Miller, Serri, The Robbins Law Firm, 2639 Dr. Martin Luther King Jr. St. N., St.
Petersburg, FL 33704-2719
Lost Profit & Wage Claims
Trust & Estate Tax Preparation,
Planning & Accounting Support
• Parvin, John A., P.O. Box 634, Palm Harbor, FL 34682, 791-4263, fax 214-1143
• Reed, Donald P., 146 2nd St. N., Ste. 310, St. Petersburg, FL 33701-3361
• Suppicich, Paul V., 8321 Old Town Dr., Tampa, FL 33647-3335
• Tucker, John V., Tucker & Ludin, P.A., 13577 Feather Sound Dr., Ste. 300, Clearwater, FL 33762, 572-5000, fax 571-1415, [email protected]
Succession Planning
Complete Tax & Audit Services
• Winters, Elise K., Elise K. Winters PA, 1006 Drew St., Clearwater, FL 33755, 4423888, fax 443-6944.



Price Donoghue Ridenour CPAs
Providing Litigation Support
29605 US Hwy 19 N., Suite 140
Clearwater, FL 33761
Tel. (727) 785-4447
Fax (727) 784-5491
www.pdr-cpa.com
STEVEN G. NILSSON
Ameri-Life Towers
Office 727 725-9488






The Rules Rule
A
RES IPSA LOQUITUR • April/May 2006 • 21
re you ready for some more rules? Just sit back and casually
review the latest onslaught of administrative orders. Administrative Order No. 2006-012 PA/PI-CIR, provides for the
appointment of one experienced criminal defense and experienced
civil trial attorney to participate in the Article V Indigent Services
Committee for two year terms. These court appointed attorneys along
with the Chief Judge and the Public Defender shall manage the
appointment and compensation of court appointed attorneys in our
Connie R. Stephens
circuit. Christopher C. Ferguson is the appointed civil trial attorney;
Brent Armstrong is the appointed criminal defense attorney. See Rules
of Judicial Administration 2.050.
Civil traffic infraction hearing officers have been established in Pinellas and Pasco
Counties via Administrative Order No. 2006-015 PA/PI CIR. The following attorneys
have been appointed as Hearing Officers: Ramy Fares, Steven Trabayko Meiller, Mary
Ellen Emery, Carolee Kingan Blackmon, Herbert Eustace Langford, Jr., Scott Paul
Swope, Curtis Todd Korsko, Jan Francis Majewski, Hugh Charles Umsted, Stephen
R. Williams, E. Ronald Bradley, Julee Lynn Milham, Bruce P. Taylor, Michael Lee
Emge, Edward J. Aiosa, and Daniel P. Rock.
Rules of Civil Procedure 1.420, was recently amended. Administrative Order 2006016 PA/PI-CIR, deals with those changes along with revisions to the Rule of Civil
Procedure 1.070(j) [service of process] and Small Claims rule 7.110, to conclude litigation in a more timely manner.
The Clerks of the Circuit Court in Pinellas and Pasco County shall automatically
prepare and file a Notice of Lack of Prosecution, where there is no record activity for
a ten (10) month period. Thereafter, the Clerks of Court shall automatically prepare a
Notice of Intent to Dismiss where there is a failure to serve within 120 days; there is no
record activity sixty (60) days, immediately following the service of a Notice of Lack
of Prosecution; and where there is no record activity in a small claims case for six (6)
months, as per Small Claims Rule 7.110. There are exceptions and qualifications to the
above applications.
The proposed Disclosure of Protected Health Information Under the Health
Insurance Portability And Accountability Act of 1996 (HIPAA) rule is now in place.
See Administrative Order 2006-017 PA/PI-CIR with a handy form: Order On
Defendant(s)’ Motion For A HIPAA Qualified Protective Order and Order to Disclose
Protected Health Information.
Many attorneys are well heeled in the analysis of the Bowen procedures, dealing
with civil contempt. An Administrative Order No. 2006-021 PA/PI-CIR, quanti-
by Connie R. Stephens
fies the procedure for all. If a person is
arrested due to a writ of bodily attachment for civil contempt for the failure to
pay child support, a Bowen hearing shall
be scheduled within 48 hours after the
arrest. See Bowen v. Bowen, 471 So.2d
1274 (Fla 1985), section 38.22 Florida
Statute and the Florida Family Law Rule
of Procedure 12.615 for a more complete
analysis.
Well, are you ruled out yet? If not, the
next round of Administrative Orders will
be coming out soon for your review. If you
cannot wait for the next issue of Res Ispa
for some “ruling relief,” proceed online
at: http://www.jud6.org/ LegalPractice/
AOSAndRules/aos/AOhomepage.html.
Ruling Out, Connie R. Stephens
New Members
continued from page 19
• Wilhelm, Natalie D., Law Degree
from College of William & Mary
School of Law 1997, Undergraduate
Degree from Duke University 1993,
Zimmet, Unice, Salzman & Heyman,
P.A., P.O. Box 15309, Clearwater,
FL 33766, 723-3772, fax 723-1421,
[email protected]
• Woollums-Baad, Suzane L., Law Degree from Drake University Law School
1992, Undergraduate Degree from
Drake University–Des Moines, IA 1989,
1180 Bluffs Cir., Dunedin, FL 34698,
698-0574, [email protected]
22 • April/May 2006 • RES IPSA LOQUITUR
Perenich, Carroll, Perenich
Avril, Caulfield & Noyes, P.A.
is pleased to announce
Terence A. Perenich, Esq.
is now a partner of the firm.
Terence Perenich’s practice is dedicated to plaintiff personal injury,
product liability, medical malpractice and wrongful death matters.
1875 North Belcher Road, Suite 201
Clearwater, FL 33765
727.796.8282
VoiceOfTheInjured.com
CBA Member
Benefit Program
ABA Books
25% Discount on ABA Publications
www.ababooks.org
Source Code: PAB5ECWB
Affiniscape Merchant Solutions
Credit/Debit Card Processing
Janelle, 800-644-9060, ext. 221
[email protected]
CBA Lawyer Referral Service
Client Referrals, 461-4880
Darrin Johnson
CBA Legal Placement Service
Law Office Staff Placement
Linda @ Bar Office, 461-4869
EconOffice Products & Supplies
Office Supplies and Equipment
Jean McNally, 866-971-5187, x203
Tiffany Jiannuzzi, 866-971-5187, x205
Gulf Coast Business Review
Law/Business Review
Janet Leiser, 447-7784
InTouch Legal
Law Office Technology
Debbie Foster, 319-8281
Loislaw
Electronic Legal Research
Jim Duckett, 800-364-2512 [email protected]
RES IPSA LOQUITUR • April/May 2006 • 23
ALAN S. ZIMMET
MEDIATION
Circuit Civil Certified Mediator
Certified Mediator,
Middle District of Florida
Morton Plant Mease Wellness Center & Family Fitness
Clearwater: Jennifer Huck, 462-7656; Palm
Harbor: Penny Skaggs, 772-2222; Carillon:
Gil Peri, 502-4444
Board-Certified - City, County
and Local Government
MetLife Long Term Care Insurance
New England Financial
Lita Campbell, 813-286-3862
[email protected]
Mediating all GovernmentRelated Disputes
Civil Rights
Land Use
Labor & Employment
Government Contracts
Government Dispute Resolution
Process
Inverse Condemnation
Sovereign Immunity
Online Legal Career Center
www.clearwaterbar.org
800-659-5589
Paychex
Payroll Service
Megan Doyle, 579-4700 ext. 4122
Premier Conferencing
Ready Conference Plus
Heidi, 800-707-8688
[email protected]
Zimmet, Unice, Salzman,
& Heyman, P.A.
2570 Coral Landings Blvd., Ste.201
Palm Harbor, FL 34684
727-723-3772 (fax) 727-723-1421
Signature Bank
Banking Services for Lawyers
Rob Shaw, 727-446-2742
[email protected]
Thomson West
Legal Research
Dave Muller, 727-742-3217
[email protected]
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24 • April/May 2006 • RES IPSA LOQUITUR
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When it comes to publishing legal notices,
the Gulf Coast Business Review has both — experience and expertise.
Founded 53 years ago as the Pinellas Review and later known as the Tampa Bay Review,
the Gulf Coast Business Review is Greater Tampa Bay’s expert in legal notice advertising. No
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Business Review. And there’s a reason for that: Outstanding customer service.
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Quality of Life & Career
RES IPSA LOQUITUR • April/May 2006 • 25
by Frank Natter
The Mind-Body Connection in Law and Medicine
I
ncreasing sexual activity from once a month—to once a week—
produces happiness equal to increasing income by $50,000 a year,
according to the calculation of Economists David Blanchflower
(Dartmouth) and Andrew Oswald of the University of Warwick in
England, as reported by New York Times Columnist Maureen Dowd
(St. Petersburg Times, 3/28/06). While “happiness” may be in the
mind of the beholder, the mind-body connection is supported by
current medical research indicating that mental imagery can reduce
Frank Natter
pain/stress and improve immune response.
In law school, we sang, “Mens Rea, I just met a girl named Mens Rea,” while
learning the connection between state of mind and physical acts in Criminal Law.
Contracts, Constitutional Law, Evidence, and so on, all require interpretation and application—a mind-body connection. “The Law is what it is, except when it isn’t,” taught
Torts Professor Ken Vinson (FSU College of Law), explaining that a judge’s decision is
influenced by “what he (or she) ate for lunch.”
A local neurologist advises that medicines are simply “bitters” intended to tweak
the body into doing its job. Mind can also tweak body! We can improve our health
through changes in thought (cognitive-behavioral) patterns. More on this next issue!
Experiment: “Twenty Dollars” is a humorous perspective on stress sent to me as an
e-mail forward. “A Few Words About Love,” is a serious statement about relationships
appearing on a Hallmark Plaque. Do you enjoy both, one more than the other, or neither?
Twenty Dollars
On their wedding night, the young bride approached her new husband and asked for
$20.00 for their first lovemaking encounter. In his highly aroused state, her husband
readily agreed.
This scenario was repeated each time they made love, for more than 30 years, with
him thinking that it was a cute way for her to afford new clothes and other incidentals
that she needed.
Arriving home around noon one day, she was surprised to find her husband in a very
drunken state. During the next few minutes, he explained that his employer was going
through a process of corporate downsizing, and he had been let go. It was unlikely that,
at the age of 59, he’d be able to find another position that paid anywhere near what he’d
been earning, and therefore, they were financially ruined.
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Calmly, his wife handed him a bank
book which showed more than thirty
years of steady deposits and interest totaling nearly $1 million. Then she showed
him certificates of deposits issued by the
bank which were worth over $2 million,
and informed him that they were one of
the largest depositors in the bank.
She explained that for the more than
three decades she had “charged” him for
sex, these holdings had multiplied and
these were the results of her savings and
investments.
Faced with evidence of cash and
investments worth over $3 million, her
husband was so astounded he could barely
speak, but finally he found his voice and
blurted out, “If I’d had any idea what you
were doing, I would have given you all my
business!”
That’s when she shot him.
You know, sometimes, men just don’t
know when to keep their mouths shut.
A Few Words About Love
After we’ve sorted through all the myths
and make believe, we begin to learn that
love isn’t built on guilt edged games or
carefully worded treaties, but on warming welcomes, comforting hugs, promises
kept, secrets safely shared and memories
that smile through the years.
Little by little we learn that the people
who matter most are those whose caring
makes a beautiful difference in our lives.
26 • April/May 2006 • RES IPSA LOQUITUR
MEDIATION
CHARLES A. BUFORD
Attorney at Law
Convenient Mid-County Location with
Multiple Conference Rooms Ideal for
Mediation
Certifications
Experience
Certified Circuit Civil Mediator
20 years civil trial practice in most areas of
Civil Litigation, including:
Products Liability
Commercial
Auto Negligence
Business
Insurance Defense
Construction
Malpractice
Professional Liability
Insurance
Personal Injury
Probate
Premises Liability
Board Certified Civil Trial Lawyer
Board Certified Business Litigation
Member Million Dollar Advocates Forum
AV Rated
Harper, Kynes, Geller and Buford, P.A.
2560 Gulf to Bay Blvd., Suite 300
Clearwater, Florida
Phone: (727) 799-4840
Fax: (727) 797-8206
Email: [email protected]
MEDIATION & ARBITRATION
DALAN & KATZ, P.L.
Attorneys at Law
*Rick Dalan & Jeffrey M. Katz
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Clearwater, Florida 33759
Phone: (727) 796-1000 or (800) 538-4173
Facsimile: (727) 797-2200
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RES IPSA LOQUITUR • April/May 2006 • 27
C L A S S I F I E D RATES
Non-CBA Members
$50—50 words or less
CBA Members
$25—50 words or less
$1 per additional word.
Ads must be pre-paid.
Classified Advertising
For Rent/lease
• CLEARWATER: Prime office location at
Wachovia Bank Building on US 19/Republic
Dr. on 1st Floor. Executive and secretarial offices
available. Share conference rooms, reception and
copy/mail areas. Newly renovated. Immediate occupancy. Ideal space for mediations/depositions.
Call Gregory Perenich, Esq. 727-669-2828
• CLEARWATER: High profile Prestigious office building with multiple professional tenants
located on busy Belcher Road in central Pinellas
County has office suite for rent. Two executive
offices, conference room, kitchen and two large
secretarial areas. Plush upgraded carpet, wood
floors and vaulted ceilings. Elevator in building,
separate A/C and plenty of parking. Full service.
Approx. 1,200 sq. ft. MOL. Available Spring
2006. Call Louis at 727-692-8705 or 866-7266233 ext 11.
• CLEARWATER: Prime location at J.B. Executive Center, 1st floor executive suite, 712 sq. ft. &
3rd floor, 411 sq. ft. newly renovated. Immediate
occupancy. Close to Court and Clearwater Bar.
Call Ali at 727-463-1175.
• CLEARWATER: Prime office location,
Belcher and Druid in Clearwater. Space available. Ideal for small existing firm or individual
attorney. Building to be renovated and landscaped
in July/August. Entire back section with separate
new entrance available, 1,250 sf. Interior attorney offices plus sec’y space in the front section
available. Probable cross referrals for Family law,
injury law, and civil litigators. Larry 727-7265297. Email [email protected].
For advertising information, contact:
Clearwater Bar Association
314 S. Missouri Ave., Suite 107
Clearwater, FL 33756-5858
Phone: 461-4869 Fax: 461-0063
E-Mail: [email protected]
Position Available
• A civil litigation attorney with 2 - 5 years experience is needed by a busy “AV rated” north Pinellas
mid-sized firm. Good academic credentials;
immediate courtroom work commensurate with
experience. Competitive salary and benefits. Fax
resume with salary requirements in confidence to:
litigation department – 727-443-2600 or e-mail
to: [email protected].
• CLEARWATER: Office for rent: 111 McMullen
Booth Road, (south of Drew, across from the Calvary Baptist Church). 850 square feet, two offices,
large secretarial room, waiting/conference room,
and large restroom. $1,250 per month. Utilities
not included. Call Tony at 727-251-1131.
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Clearwater, FL
Permit No. 32
314 S. Missouri Avenue, Suite 107
Clearwater, Florida 33756-5858
Change Service Requested
May 2006 · Calendar of Events
05-02
Great Debate Finals
6:00 pm, CJC, Courtroom One
Volunteer—Jewel Cole 464-3354
05-03
Law Line
6-8pm, Bar Office
Volunteer—David Haynes 584-6100
05-04
Representing Pro Bono Clients CLE
Noon, Hispanic Outreach Center
RSVP Bar Office 461-4869
05-19
Law Day Luncheon
Noon, Harborview Center
RSVP Bar Office 461-4869
05-22
US Supreme Court Swearing In
Washington, D.C.
RSVP Bar Office 461-4869
05-25
Intellectual Property Basics CLE
4:15 pm, Radisson
RSVP Bar Office 461-4869
05-26
Trial Practice CLE
Feather Sound Country Club
RSVP St. Pete Bar 823-7474
June 2006 · Calendar of Events
06-08
Bar Leaders Workshop w/HCBA
2:00 pm, University Club, Tampa
RSVP Bar Office 461-4869
06-14
Employment Law for 8:00 am, Radisson
RSVP Bar Office 461-4869
Business Owners & Managers CLE
06-14
Living Wills Day
Noon-6pm, East Library, 2551 Drew St.
Volunteer—Jane Helms 443-0657
06-16
Survivor—Ethics CLE
8:00am-Noon, Feather Sound Country Club
RSVP Bar Office 461-4869
06-22
Identity Theft Basics CLE
4:15 pm, Radisson
RSVP Bar Office 461-4869
July 2006 · Calendar of Events
Date
Group and Event
Time and Place
Registration
07-04
Independence Day
CBA Office Closed
07-21/22
Florida Bar Leader Conference
Ft. Lauderdale
RSVP www.flabar.org
07-27
Banking Basics CLE 4:15 pm, Radisson
RSVP Bar Office 461-4869