March 2016 - Broward County Bar Association

BROWARD COUNTY BAR ASSOCIATION
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March 2016
JUDICIAL
ROBING
CE REM ON Y
2016
SERVING THE CITIZENS AND LEGAL COMMUNITY OF BROWARD COUNTY SINCE 1925
R
RICE
PUGATCH
ROBINSON
STORFER
Arthur H. Rice
Chad Pugatch
Kenneth Robinson
Ron Cohen
Craig Pugatch
Richard B. Storfer
Brent Chudachek
Riley W. Cirulnick
Broward County
Bar Association
Recognizes 100% Membership Club
**For firms with 5 attorneys or more**
Abramowitz, Pomerantz, & Morehead, P.A.
Billing, Cochran, Lyles, Mauro & Ramsey, P.A.
Michael Karsch
Brinkley Morgan
Richelle Levy
Buchanan Ingersoll & Rooney PC
George Zinkler III
Burr & Forman LLP
& COHEN
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ATTORNEYS AT LAW
Christian Savio
Broad & Cassel
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Coast to Coast Legal Aid of South Florida
Cole, Scott, and Kissane
Colodny Fass
Conrad & Scherer, LLP
Cooney Trybus Kwavnick Peets, PLC
Doumar, Allsworth, Laystrom, Voigt, Wachs & Adair, LLP
Ferencik, Libanoff, Brandt, Bustamante, & Goldstein, P.A.
Fowler, White, Burnett, P.A.
Gladstone & Weissman, P.A.
Goldstein Law Group
Gray Robinson, P.A.
Haliczer, Pettis & Schwamm, P.A.
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Roig Lawyers
Schlesinger Law Offices, P.A.
Walton, Lantaff, Schroeder & Carson, LLP
Wicker, Smith, O’Hara, McCoy and Ford, P.A.
2 | March 2016
Broward County Bar Association Barrister
Staff Box
PUBLISHER
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PUBLICATIONS & PUBLICITY
COMMITTEE
Edwina V. Kessler, Co-chairperson
Kimberly Gessner, Co-chairperson
Jared Guberman, Co-editor
Chris Traina, Co-editor
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[email protected]
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CONTRIBUTING WRITERS
Roberto Cruz
Kimberly Gessner
Alan Grossman
Jared Guberman
Nancy Little Hoffman
Shari Scalone
John V. Tucker
inside this issue
5
7
9
10
14
18
22
24
Letter from the President
Robin S. Moselle
5
Young Lawyers’ Section
Letter from the President
Jeffrey M. Wank
Warning Issued to State
Alan Bryce Grossman
Avoiding Malpractice
14
John V. Tucker
Newest Members of the
Judiciary
Raising the Bar
Shari Scalone
Recent Developments In
The Law
18
Nancy Little Hoffman
Calendar of Events
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BROWARD COUNTY BAR ASSOCIATION
MARCH 2016
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responsible for any consequences arising from
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JUDICIAL
ROBING
C E RE M O N Y
2016
ON THE COVER:
On Friday, February 19 our newest Circuit and County
Court judiciary were robed and sworn in at the Broward
County courthouse. Pictured left to right are Judges
Stephen J. Zaccor (County Court), Ernest A. Kollra, Jr.
(Circuit), Alberto Ribas, Jr.(Circuit), and Nina W. Di Pietro
(County Court). www.browardbar.org
SERVING THE CITIZENS AND LEGAL COMMUNITY OF BROWARD COUNTY SINCE 1925
4 | March 2016
Broward County Bar Association Barrister
letter from the president
2015 - 2016
BCBA Officers
We all have a case that marks an
indelible spot in our memories and that
makes us appreciative of the profession
we chose to pursue. One such case for
me did not involve making new case
law or winning a substantial award
(although thankfully I have done both).
This case involved many weeks of trial
and lots of headaches, all for very little
pay. Yet it also brought me one of the
greatest satisfactions in my career as an
attorney, and an experience I wouldn’t
trade for the world.
Robin S. Moselle - President
Charles A. Morehead III - President Elect
Thomas D. Oates - Treasurer
Edwina V. Kessler - Secretary
John G. Jordan - Past President
BOARD OF DIRECTORS
NORTHEAST
Michael I. Kean
M. Ross Shulmister
Jerome R. Siegel
NORTHWEST
Evan M. Ostfeld
WEST
Donald E. Fucik
Gary M. Singer
Russell Miller Thompson
CENTRAL
Jamie Finizio Bascombe
William R. Clayton
Michael A. Fischler
Jose Izquierdo
Michael D. Leader
Alison F. Smith
Robert C.L. Vaughan
SOUTHEAST
Michael A. Rajtar
Jeffrey Solomon
Laura Varela
SOUTHWEST
Kimberly A. Gilmour
JUDICIAL REPRESENTATIVE
The Honorable Martin J. Bidwill
EXECUTIVE DIRECTOR
Braulio N. Rosa
For a period of about 10 years I
served as a Special Public Defender
in Dependency Court. This was done
in addition to my regular practice and
Robin S. Moselle
fulfilled my desire to help families in
need. I was part of a hardworking group
that was assigned to cases in Dependency Court. The pay was fairly nominal, the
hours long, and there was never a shortage of clients. In this particular case I was
assigned to represent the mother whose daughter was removed from her care due
to allegations of the mother’s drinking and neglect. My assignment came with the
caveat that I was the 5th or 6th attorney on the case, as the mother had either fired
her prior attorneys or they pleaded to be removed. I was told I wouldn’t have to be
on the case long since the Department of Children and Families was in the process
of filing a petition to terminate the mother’s parental rights and this was a slam
dunk case.
Upon meeting my new client, I encountered an emaciated woman whose shock of
red hair, deep raspy voice and belligerent attitude seemed to validate what I had
been told about her. My head filled with thoughts about how soon I could get this
case to trial, and if I could convince my client to a voluntary resolution. But then
something happened. I listened, and what my client had to say made sense. Her
daughter had been sent to live with a relative in another state. The placement only
lasted a few weeks before the daughter was moved to a foster home in that state.
Although she had completed her mandated parenting classes, my client was unable
to complete any of the visitation requirements due to the distance between her and
her child. She was gainfully employed, albeit in a bar/restaurant, had passed all of
her drug tests, and had a long term partner who was like a father figure to the child.
The case had started when the mother left the child alone in the apartment to visit
a neighbor in the building and had escalated due to the mother’s combative nature.
Based on my client’s narrative, the case did not seem ripe for termination. I started
taking depositions, subpoenaing records and reading through volumes of files.
We went to trial that included many continuances, surprise witnesses and hours
of testimony resulting in a denial to terminate my client’s parental rights. The
child was returned back to the mother, first under supervised conditions and then
unsupervised. A few years later the judge saw the mother and child at a foster care
event and reported they both were thriving. For me, this was a validation of hours
of work I had put into a case that seemed to be a fait accompli. I hope that you have
such a story to share, and as deep an appreciation for your profession. If you do,
I would love to hear from you.
Broward County Bar Association Barrister
March 2016 | 5
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Broward County Bar Association Barrister
2015-2016 BCBA
Young Lawyers’ Section
OFFICERS
Jeffrey M. Wank - President
Todd L. Baker - President Elect
Sara M. Sandler - Treasurer
Brent M. Reitman - Secretary
Liza Smoker Faw - Past President
BOARD OF DIRECTORS
Jamie D. Alman
Lauren M. Alperstein
Omar Giraldo
Jeffrey Hegewald
Renita Henry
Lindsay Massillon
Nikeisha Williams Pryor
Brent Reitman
Emily Romano
Eric S. Rosen
Anthony H. Quackenbush
H. Seth Rosenthal
Stacy R. Weissman
letter from the young lawyers’ president
This past month the Young Lawyers
Section of the Broward County Bar Association (“YLS”) was recognized by
the Florida Board of Governors Young
Lawyers Division as the 2016 AFFILIATE OF THE YEAR! In other words,
YLS ROCKS! Never before has our
organization received this prestigious
honor, and is a true reflection of the
hard work and dedication our Board
of Directors and young lawyers across
Broward exemplify day in and day out.
Our charitable work, legal education
and continued mission to better our
community has been recognized by our
peers and leaders throughout Florida.
Jeffrey M. Wank
The work and extra hours our current
Board, as well as Boards over the past few years, led by past-presidents such as
Liza Smoker Faw, Marissa Pullano, Meghan Clary, Bart Ostrzenski, David Hirschberg, and many others, have resulted in hundreds of thousands of dollars raised for
local charities, awareness to issues affecting our community, and more productive,
prepared, and professional attorneys. Join us at our next event and see for yourself
why this group continues to excel as leaders in Broward County!
JUDICIAL REPRESENTATIVES
The Honorable Robert Diaz
The Honorable Stacy Ross
Florida Bar
Board of Governors
17th Judicial Circuit
Walter G. “Skip” Campbell
954.763.8181
Lorna E. Brown-Burton
954.463.8322
Jay Cohen
954.763.6939
Adam Glenn Rabinowitz
954.764.7060
Diana Santa Maria
954.434.1077
Broward County Bar Association
1051 SE 3rd Avenue
Fort Lauderdale, FL33316
954.764.8040
2015-2016 Young Lawyers Section Board of Directors
Finally, a couple of significant events we have planned are around the corner. If
you are a newer attorney, and recently graduated or have only been practicing 1-3
years, you must register for the YLS Boot Camp Series. The next session will
focus on “Evidence Boot Camp” and is on March 1, 2016 at the Broward Courthouse. Please register online at www.browardbar.org. Also, YLS is launching our
first annual Charity Poker Tournament, which will be held at the Tower Club on
March 29, 2016 at 6:00 p.m. Please contact Todd Baker, Esq. at [email protected] for additional information, or sign up on our website.
Broward County Bar Association Barrister
March 2016 | 7
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8 | March 2016
Broward County Bar Association Barrister
Warning Issued to State:
Delayed DNA Evidence Disclosure
May Result in Exclusion
by Alan Bryce Grossman
The Fourth District issued a clear
warning to the State, and particularly the Broward County Sheriff’s
Office, that future late disclosure of
DNA evidence in criminal cases may
be excluded as trial evidence. Based
on the Court’s view that there may
be a historic pattern of late disclosures, such tardiness may be deemed
in the future as willful, which may
be sufficient cause for exclusion in a
future trial.
In Bryant v. State, the Court affirmed
a guilty verdict. In its opinion, the
Court provided a detailed review of
the State’s handling of the DNA evidence. The crux of the case related
to the fact that BSO’s DNA testing
started two days prior to trial. The
State’s expert report was disclosed
to the defendant 13 days after jury
selection.
The facts in Bryant will properly set
the stage for the Court’s warning and
approval of the manner in which the
trial court handled the delayed evidence issue. The Court did not hold
back in presenting clear thoughts,
and more importantly clear direction, as to the manner that the parties - the State, BSO, and defendants
– would be served well in future like
matters.
In the summer of 2001, the Victim’s
body was found at her home. In its
investigation, BSO secured pants
that contained stains. It took until
2005 for the pants to find its way to
BSO’s lab, but no testing was done
for more than two more years. The
parties agreed that identifying the
owner of the pants was a key issue
for trial.
While the pants were made available
to the defense expert in California,
the trial was recessed for 5 weeks.
Despite repeated requests from the
trial judge if the defense wanted a
mistrial or a continuance, the defendant’s attorney declined, stating that
he was “impressed” with the jury.
Instead, the defense moved to exclude the DNA evidence as a discovery violation. The trial court denied
the request, but made time available
to the defense through the recess to
complete further testing and do other
discovery. The trial ended, resulting
in a guilty verdict and a life sentence.
In affirming the judgment, the
Broward County Bar Association Barrister
Fourth District stated that notwithstanding the negligence of the State
in its tardiness as to the DNA evidence, such negligence did not arise
to the level of willful and was not
intentional. The message, though,
from the Fourth District was that the
tardiness in this case came “dangerously close to shifting the State’s actions from negligent to willful.” The
Court noted that this was “not the
first time that the BSO’s lab has been
late with DNA testing and furnishing
the results.” The warning was then
issued: “in future cases it may be appropriate for the trial court to take
the State’s ... pattern of tardy or late
disclosures into consideration when
determining whether there has been
a discovery violation....” The Court
approved the denial of the exclusion
of the DNA evidence, which would
have been an excessive sanction.
The Court was clear that there will
be a limit to the Court’s patience in
the future.
Alan Bryce Grossman is a
sole practitioner in Cooper
City, practicing in South
Florida, and around the
state, and elsewhere, for 26
years. His areas of practice
include litigation and appeals
in commercial, property, and
probate matters. He is a
graduate of the University of
Florida and the University
of Baltimore School of Law.
He can be reached at alan@
abgrossman.com or by calling
954-364-6294.
March 2016 | 9
Avoiding Malpractice Issues
Unique to Employment Cases
by John V. Tucker
Any type of claim for insurance or pension
benefits under a private employer’s group
plan is covered by a federal law called
ERISA - the Employee Retirement Income
Security Act of 1974. These claims can be
challenging because no two ERISA plans are
the same, and every claim presents unique
factual challenges. However, some common
pitfalls have evolved under the law that attorneys must recognize when handling ERISA
cases. Here are five malpractice traps for the
unwary:
must not only offer proof of loss, but also
rebut all reasonable evidence that supports
the administrator’s denial. Most ERISA
claims are reviewed by a federal judge using an abuse of discretion (also called “arbitrary and capricious”) standard of review.
To shoot down the administrator’s evidence,
a successful advocate must know what that
evidence is. Immediately request a complete
copy of the claim file from the administrator,
analyze the documents, and determine how
you will add evidence to prove the claim
while simultaneously attacking the adminis1. If a claim is denied, the appeal deadlines trator’s evidence—all before the 60- or 180expire in a matter of days.
day appeal period expires.
The U.S. Department of Labor regulations
govern the ERISA claim process, depending 4. Build the record by submitting all evidence
on the type of benefit, the rules allow a claim- before the final decision on the claim.
ant anywhere from 60 to 180 days to submit a If you have to file suit on an ERISA case, you
written appeal.1 If that deadline is missed, the must prepare the claim appeal as if the apclaim is over and the claimant loses the right peal was going to be denied. In the Eleventh
to pursue the claim further. Keep in mind that Circuit, the court typically will only consider
many claimants contact their attorneys at the the facts known to the administrator at the
eleventh hour. Never accept an ERISA case time the decision to deny benefits was made,
without determining, from the denial letter, so be sure to submit as part of the appeal any
the date the claim was denied and calculating evidence you would want considered by the
the deadline to appeal.
judge.2 This includes expert opinions, impeachment evidence, conflict of interest evi2. The pre-suit appeal is mandatory. If you dence, and medical proof of disability. You
miss it, you cannot file suit.
will not be permitted to introduce new subThe doctrine of exhaustion of pre-suit rem- stantive evidence after the appeal decision is
edies applies with a vengeance under ERISA. entered or once a lawsuit is commenced.
With few very narrow exceptions, filing the
pre-suit appeal is a jurisdictional requirement 6. ERISA Plans can shorten the statute of
in every federal circuit. Failure to either file limitations to as short as 90 days!
the pre-suit appeal or to allow the administra- ERISA does not contain a statute of limitator the required time to decide the appeal re- tions provision.3 Federal courts have held
sults in the court’s dismissal of a subsequent that an ERISA Plan may contain a contraclawsuit If the 60- or 180-day period to file tual limitations period that is shorter than the
the pre-suit appeal has lapsed by the time the applicable insurance statute of limitations in
court dismisses the case, there is no recourse. your state. In Northlake Regional Medical
Center v. Waffle House Systems Employee
3. Do not submit an appeal without first re- Benefit Plan4, the Eleventh Circuit Court of
viewing the claim file.
Appeals issued one of the most glaring exTo get an ERISA claim reversed in court, you amples of this rule. In Northlake, the em-
10 | March 2016
ployer’s plan document specified that the
limitations period for filing suit was 90 days
after the final pre-suit appeal decision was
issued. The Eleventh Circuit held the limitations period was reasonable and enforceable,
because the plan imposed similar deadlines
on itself. It also cited the fact that the claimant was aware of the short time period because the deadline followed the internal review process.5
Conclusion
ERISA cases are filled with landmines. Most
legal malpractice insurers require disclosure
when an attorney handles ERISA claim because of these traps. You need the proper
checks and balances built into your case
management system to avoid them. If you
are going to handle employee benefit claims,
you should aggressively pursue them from
the moment a claimant hires you to avoid
missing deadlines and to make sure you have
the necessary evidence to win the claim.
29 C.F.R. §2560.503-1.
Jett v. Blue Cross and Blue Shield of Alabama,
Inc., 890 F.2d 1137, 1139 (11th Cir.1989).
3
29 U.S.C. §1001 et seq.
4
Northlake Regional Medical Center v. Waffle
House Systems Employee Benefit Plan, 160 F.3d
1301 (11th Cir. 1998).
5
Id. at 1304.
1
2
John V. Tucker is the
Managing Shareholder
of Tucker & Ludin, P.A.
For over 24 years, Mr.
Tucker has represented
individuals in disability
and life insurance benefit
claims and litigation, with
a focus on cases governed
under ERISA. He is AV
rated and was named as
a 2015 SuperLawyer in
the area of Employee Benefits. He can be reached at
Tucker@TuckerDisability.
com.
Broward County Bar Association Barrister
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March 2016 | 11
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A Dedication to Service
Welcoming our Newest Members of the Judiciary
The Broward County Bar Association was proud to honor and recognize our newest judiciary members of the Broward
Circuit and County Court. The robing ceremony took place on Friday, February 19 at the main courthouse in Fort
Lauderdale where lawyers, judges, and family members gathered in celebration. We thank the new judges for their
dedication and commitment to serving the good of our community. Please join us in welcoming and congratulating
our new judges.
Circuit Court
The Honorable Ernest Albert Kollra, Jr.
by Jared Guberman
Prior to being appointed by Governor Rick Scott to the 17th Judicial
Circuit Court bench, Judge Ernest
Kollra, Jr. practiced law privately for
38 years, mostly as a general practice
attorney and several years in criminal
law. Judge Kollra brings to the bench
several years of experience, an even
temper, and a broad knowledge of the
law.
Judge Kollra always knew he wanted to be a judge. About
five or six years ago, Judge Kollra thought that it could
become a reality. He told his wife, Nancy one day that “[he]
could do this job.” He applied and the rest is history.
The best advice he has received before serving on the bench
has been if he has a question, take a break from the bench, go
to a mentor, and seek advice from other judicial colleagues.
Judge Kollra received his bachelor’s degree from the University of Scranton and his law degree from Nova University.
Judge Kollra fills the vacancy created by the resignation of
Judge Lynn Rosenthal.
In his spare time, Judge Kollra acts with the Irish Theater of
Florida, travels to different parts of the country. He especially loves Boston and Chicago. Most importantly, he spends
time with his children and grandchildren.
Judge Kollra enjoys giving back to the community by helping with serving food each year at a multiday church carnival.
Nancy’s dad passed away from Lou Gehrig’s disease and so
they also spend time supporting the ALS Association. They
regularly participate in the American Heart Association’s
Heart Walk with his wife’s work team, Westside Regional
Medical Center in Plantation, Florida.
The Honorable Albert Ribas, Jr.
by Kimberly Gessner
Prior to Governor Rick Scott’s recent appointment, Judge
Alberto Ribas was a practicing attorney for just over the past
twenty years, specializing in the area of criminal law. Specifically, Judge Ribas served as an Assistant State Attorney
during this time. Not surprisingly, public service is something near and dear to Judge Ribas’ heart. In his endeavor
to become a Judge, his main source of motivation was to
continue to serve the public in a different capacity - one that
drew on his many years of knowledge gained through decades of practice.
When asked what qualities he felt would help him serve well
on the bench, Judge Ribas reflected on the humility required
14 | March 2016
in holding a position of public trust,
saying “I think it is important to have
humility as a judge because it keeps
you grounded in that you are not bigger than the position of public trust
that you hold. Humility also gives
you courage to make difficult decisions, even if it will subject you to
great public scrutiny. Lastly, humility
promotes a respect for the rule of law,
in that a judge’s job is to follow the
law.”
Broward County Bar Association Barrister
County Court
The Honorable Nina W. Di Pietro
by Alan Grossman
In addition to the knowledge she
gained from her three years working in the Public Defender’s office, coupled with her seven years
in private practice, first in criminal
defense, and then in commercial and
probate litigation, Judge Nina Di Pietro, brings to the bench a sense that a
key element to her work is to exhibit
patience to let all sides have their say.
This is particularly relevant in the
County Court where many of the litigants that come before
her are unrepresented.
Maintaining the presence of balance in the proceedings is a
key trait of Judge Di Pietro’s approach to sitting as a County
Court Judge.
Judge Di Pietro is a true home-town girl. She was born and
raised in Broward County, attending school in Cooper City.
Judge Di Pietro’s family, and that of her husband, also make
South Florida their homes. Her transition as a litigator to
a jurist resulted from Judge Di Pietro’s service as a Board
Member of the Florida Board of Medicine, where she presided over licensure and disciplinary cases. This experience,
combined with her litigation experience and running a private
practice, well prepared her for the challenges presented as a
sitting judge.
When not handling her duties as a judge, Judge Di Pietro is
an avid runner and enjoys spinning classes, and spending
time with her family and her 12 year old pug. She is a proud
supporter of the Crockett Foundation, set up by two brothers,
former NFL players, to give underprivileged youth the assets,
services, events, and fundraising that they may otherwise be
denied.
Judge Di Pietro approaches her time as a jurist with the idea
being forefront that
everybody that appears before her should know that all parties are entitled to respect, a standard that she is confident will
find a consistent home in her courtroom.
The Honorable Stephen J. Zaccor
by Roberto Cruz
Prosecutor Stephen J. Zaccor was appointed to replace retired
Judge Gary Cowart on the 17th Circuit County Court. The
43-year-old Judge joined the Broward County State Attorney’s Office straight out of law school in 1998. He was assigned to the Career Criminal Division in 2005. By 2009, he
was prosecuting homicides. Zaccor secured the conviction of
Luke Chamberlain in 2011, prosecuted for killing a Pembroke
Pines restaurant worker. Zaccor is also known for leading the
death penalty prosecution of James Herard in 2011, convicted
on the Dunkin’ Donuts murder and robbery spree case.
coming a judge, he states: “I’ve spent
my entire career in the courtroom trying the simplest to the most complex
cases, and I wanted to experience our
legal system from a different perspective while still being able to serve the
public.” He was advised to: “Listen,
Listen, and Listen!” Still, lawyers are
forewarned that his pet peeve is lack
of professionalism.
Last year, Zaccor wrote an op-ed for the Sun Sentinel on
death penalty prosecutions. “Any decision in our office to
seek the death penalty is never taken lightly,” he noted. “The
decision … is made after a thorough review of the facts and a
robust discussion among senior homicide prosecutors.”
The avid skier, licensed soccer coach and outstanding cook
can be found supporting a variety of charities, including
Wounded Warriors, American Cancer Society, and Women
(Kids) in Distress.
Judge Zaccor oversees misdemeanor and civil matters. In be-
Broward County Bar Association Barrister
March 2016 | 15
1 9 0 0 AT TO R N E YS | 3 8 LO C AT I O N S W O R L D W I D E ˚
Congratulations to
The Honorable Circuit Court Judges
Ernest Albert Kollra, Jr. and Alberto Ribas, Jr.,
as well as The Honorable County Court Judges
Nina W. Di Pietro and Stephen J. Zaccor.
We are proud to support the
Broward County Bar Association and its
2016 Judicial Robing Ceremony.
William R. Clayton, Shareholder
Broward County Bar Association Board Member
401 East Las Olas Boulevard | Suite 2000
Fort Lauderdale, FL 33301 | 954.765.0500
G R E E N B E R G T R A U R I G , P. A . | W W W. G T L A W. C O M
Greenberg Traurig is a service mark and trade name of Greenberg Traurig, LLP and Greenberg
Traurig, P.A. ©2016 Greenberg Traurig, LLP. Attorneys at Law. All rights reserved. °These numbers
are subject to fluctuation.
26956
CIRCUIT COURT JUDGES
Ernest Albert Kollra, Jr.
Alberto Ribas, Jr.
Congratulations
COUNTY COURT JUDGES
Nina W. Di Pietro
Stephen J. Zaccor
(888) 491-1120 l www.gmlaw.com
Boca Raton l Ft. Lauderdale l Las Vegas l Miami l Miami Beach
Orlando l Port St. Lucie l Tallahassee l Tampa l West Palm Beach
Broward County Bar Association Barrister
March 2016 | 17
2016 Raising the Bar
by Shari Scalone
The Broward County Bar Association’s 2016 Raising the Bar seminar
is around the corner! For those family law attorneys who are eager to
brush up on any changes to equitable
distribution, recent cases, and legislative updates, this continuing legal
education seminar will immerse you
in the relevant and practical material. The seminar will also provide a
panel overview of financial affidavits,
common lawyer mistakes, and family
law bench pet peeves. Furthermore,
significant time will be devoted to
the Supreme Court case Hahamovitch v. Hahamovitch, 174 So.3d 983
(Fla. 2015), putting to rest the conflict
amongst the District Courts of Appeal
in relation to prenuptial agreements.
Taking place on Friday, April 8th
from 8:30 a.m. to 5:00 p.m. at the Bahia Mar Fort Lauderdale Beach, spend
the day learning family law intricacies and practice pointers. For a cost
of $125 for BCBA members ($150
Non-members), you will receive 7
CLE credits, self-parking, breakfast,
lunch, and snack.
I was fortunate enough to attend last
year’s Raising the Bar seminar and
was able to integrate what I learned
into my practice. This year’s speakers
are not only knowledgeable, but carry
a vast wealth of collective experience.
I highly recommend this seminar for
young attorneys, established attorneys, as well as attorneys that practice
in the tri-county area. It is useful to
meet and interact with the key figures
in the judiciary as well as socialize
with our Broward colleagues. For
those interested, make sure to register
soon. Come join your fellow peers at
the 2016 Raising the Bar!
Shari Scalone is a
Family Law attorney
with The Law Offices
of Daniel S. Rakofsky,
P.A. She can be
reached at shari@
rakofskylaw.com or
954-745-0792. For
more information visit
www.rakofskylaw.com.
Court Reporting
Record Retrieval
eDiscovery
Trial Services
954.463.2933
Over 60 locations serving you nationwide.
www.uslegalsupport.com
18 | March 2016
Broward County Bar Association Barrister
Congratulations to our Law Alumni on their
appointment to the 17th Judicial Circuit
CIRCUIT COURT JUDGES
Ernest Albert Kollra, Jr. (J.D. 1978)
Alberto Ribas, Jr. (J.D. 1995)
COUNTY COURT JUDGES
Nina W. Di Pietro (J.D. 2006)
Stephen J. Zaccor (J.D. 1998)
Educating Leaders. Training Lawyers.
Fort Lauderdale, Florida | (954) 262-6100 | www.law.nova.edu
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Broward County Bar Association Barrister
March 2016 | 19
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20 | March 2016
Broward County Bar Association Barrister
ATTORNEYS AT LAW
Bankruptcy
Family Law
Health Care Law
Product Liability
Maritime
Appellate Practice
Commercial, Business and Civil Litigation
Securities & Financial Regulatory Litigation
William R. Scherer
Established 1974
Founder & Managing Partner
Fort Lauderdale Office
633 South Federal Hwy 8th Floor
Fort Lauderdale, FL 33301
954-462-5500
www.conradscherer.com
Robert Vaughan • Brian Lerner • Kristen Palacio • Leah Storie
Cherine Valbrun • Jay Kim • John Salas
Congratulations
to the Newly Robed Judiciary!
Ernest Albert Kollra, Jr. • Alberto Ribas, Jr.
Nina W. Di Pietro • Stephen J. Zaccor
www.kvllaw.com • 954.527.1115
Commercial Litigation • Employment Litigation
Broward County Bar Association Barrister
March 2016 | 21
Recent
Developments
in the Law
by Nancy Little Hoffman
SUPREME COURT: GUILTY PLEA though the plaintiff filed a motion to amend
NOT A “CONVICTION” WHERE AD- his complaint within that time, he failed to
attach the proposed amendment as required
JUDICATION WITHHELD.
by rule 1.190(a). The trial court held that
A Florida statute, section 790.23(1)(a), pro- because of this technical defect, the pleadvides that a person who has been convicted ing was insufficient record activity to prevent
of a felony in Florida may not possess a dismissal. Reversing, the Second District
firearm. In this case, a defendant had pled held that rule 1.420 does not permit a trial
guilty in 2008 to a Florida felony charge, but court to examine the substance of a pleadadjudication was withheld. Thereafter, he ing; it mandates only a cursory review of the
was indicted in federal court on a variety of record to determine whether there had been
charges arising out of a later incident, includ- any filing of record. Zuppardo v. Dunlap and
ing possession of a firearm by a convicted Moran, P.A., 41 Fla. L. Weekly D395 (Fla. 2d
felon. Because its own prior decisions con- DCA Feb. 12, 2016).
flicted with Florida precedent on this point,
the U.S. Eleventh Circuit certified the ques- EXCEPTION TO ONE-YEAR LIMItion as to whether, under Florida law, his pri- TATION FOR FILING RULE 1.540
or guilty plea constituted a “conviction” for MOTION APPLIES ONLY TO JUDGpurposes of the statute. The Florida Supreme MENTS, NOT ORDERS.
Court answered in the negative, holding that
because adjudication had been withheld, the In 2011, the trial court entered an order displea did not qualify as a conviction. Clarke missing a foreclosure action without prejuv. United States, 41 Fla. L. Weekly S41 (Fla. dice because the bank had failed to appear
at trial. Over two years later, citing rule
Feb. 11, 2016).
1.540(b)(4), the bank moved to dismiss that
DEFECTS IN PLAINTIFF’S FILINGS order, arguing that it was void because the
DO NOT JUSTIFY DISMISSAL OF bank never received notice of the trial. The
CIVIL ACTION FOR FAILURE TO court granted the motion, vacated its prior
dismissal, tried the case, and entered forePROSECUTE .
closure. The defendant did not appeal within
After several years of inactivity, the trial thirty days but did move to vacate the prior
court sent a rule 1.420 notice that the action order vacating the 2011 dismissal and all subwas subject to dismissal unless there was sequent orders. On appeal from the denial
some record activity within 60 days. Al- of that motion, the Third District reversed,
22 | March 2016
holding that the trial court lost jurisdiction
after dismissing the action in 2011. It further
held that rule 1.540(b)(4), which allows relief
from judgment “within a reasonable time,”
applies only to judgments and not orders.
Since the 2011 dismissal was an “order,” it
could be challenged only by a motion filed
within one year. De La Osa v. Wells Fargo
Bank, 41 Fla. L. Weekly D382 (Fla. 3d DCA
Feb. 10, 2016).
Nancy Little Hoffmann
is a Board-Certified
Appellatepracticing
Lawyer in the
Lawyer
practicing
in the Fortarea
Fort
Lauderdale
Lauderdale
since
1974. area
She since
may be
1974. She may
contacted
at be
954-771contacted
0606
or atby954-771e-mail at
0606 or by e-mail at
[email protected].
[email protected]
For
more information, see
NancyLittleHoffmann.
com.
Broward County Bar Association Barrister
PROBATE
|
TRUST
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GUARDIANSHIP
LITIGATION
SNAKE EYES OR LUCKY SEVEN?
DON’T GAMBLE. HIRE EXPERIENCED CO-COUNSEL.
515 East Las Olas Boulevard | Suite 1050 | Fort Lauderdale, FL 33301
www.florida-probate-lawyer.com
TOLL FREE: 800-249-8125
DIVISION OF FEES PAID IN ACCORDANCE WITH FLORIDA BAR RULES.
PRSRT STD
U.S. POSTAGE
PAID
FT. LAUD. FL
PERMIT # 2998
March
3 CLE: Negotiation Tactics and Strategies
in Mediation
Time: 12:00 p.m. – 1:30 p.m.
Venue: BCBA Conference Center
Cost: $15 BCBA Member; $25 NonMember
3 Bar at the Bar Legal Jam
Time: 6:00 p.m.
Venue: Maguires Hill 16 in Fort
Lauderdale
4 Northwest Broward Luncheon
Time: 12:00 p.m. – 1:30 p.m.
Venue: Runyon’s in Coral Springs
Cost: $15 BCBA Member; $25 NonMember
5 Guardianship Class - 8 Hour Adult
Time: 9:00 a.m. – 5:00 p.m.
Venue: BCBA Conference Center
Cost: $180; No Walk-ins accepted
8 North Broward Luncheon
Time: 12:00 p.m. – 1:30 p.m.
Venue: Isabella’s in Pompano Beach
Cost: $20 BCBA Member; $25 NonMember
8 Women Leaders in Law Series - Session 3
Time: 5:00 p.m. – 7:00 p.m.
Venue: BCBA Conference Center
Cost: $25 BCBA Member; $35 NonMember
9 Bankruptcy CLE: Chapter 13 Issues
Time: 12:00 p.m. – 1:30 p.m.
Venue: BCBA Conference Center
Cost: $15 BCBA Member; $25 NonMember
10 Panthers Game and CLE
Florida Panthers All-Inclusive Game and
CLE
Time: 5:30 p.m. CLE followed by
networking and game
Venue: BB&T Center
Cost: $60 BCBA Member; $75 NonMember & includes Club 93 ticket &
parking
calendar of events
11 The Essentials Guide to Criminal
Defense Series – Session 1
Time: 12:00 p.m. – 1:30 p.m.
Venue: BCBA Conference Center
Cost: $35 BCBA Member Series ($15
Session); $65 Series Non-Member ($25
Session)
12 Guardianship Class - 4-hour Minor
Time: 9:00 a.m. – 1:00 p.m.
Venue: BCBA Conference Center
Cost: $100; No Walk-ins accepted
15 West Broward Networking Social
Time: 5:30 p.m. – 7:30 p.m.
Venue: The Whole Enchilada Plantation
Cost: No Charge
16 Federal Bar March Appellate Seminar
Luncheon with the BCBA
Time: 12:00 p.m. – 1:30 p.m.
Venue: Tower Club Fort Lauderdale
Cost: $45 BCBA & FBA Members; $50 NonMember
16 Construction CLE: Project Delay
Visualization
Time: 12:00 p.m. – 1:30 p.m.
Venue: BCBA Conference Center
Cost: $15 BCBA Member; $25 NonMember
16 Solo/Small Networking Dinner
Time: 6:00 p.m. – 8:00 p.m.
Venue: Dave and Busters - Hollywood
Cost: $35 BCBA Member; $50 NonMember *$5 Additional walk-ins
23 Government CLE: P3s in FL
Time: 12:00 p.m. – 1:30 p.m.
Venue: BCBA Conference Center
Cost: $15 BCBA Member & Government
Attorneys; $25 Non-Member
30 Employment Law CLE
Time: 12:00 p.m.– 1:30 p.m.
Venue: BCBA Conference Center
Cost: $15 BCBA Member; $25 NonMember
30 Legislative Affairs Reception
Time: 5:30 p.m. – 7:30 p.m.
Venue: The Historic Maxwell Room
Cost: $25 BCBA Member and Dignitaries;
$35 Non-Member
31 IP CLE: Introduction to Intellectual
Patent Law for Business Litigators
Time: 12:00 – 1:30 p.m.
Venue: BCBA Conference Center
Cost: $15 BCBA Member; $25 NonMember
Upcoming Special Events
April 7
BCBA/Legal Aid Team at the Corporate
Run
Time: 6:45 p.m.
Venue: Huizenga Plaza
Cost: $40; deadline to register March 9
Sponsorships Available
April 8
2016 Raising the Bar
Time: 8:30 a.m.– 5:00 p.m.
Venue: Bahia Mar- Fort Lauderdale Beach
Cost: $125 BCBA Member; $150 NonMember
Sponsorships Available!
Save the Date!
May 6
Law Day Luncheon: Miranda
June 30
BCBA Annual Installation Dinner