Tuesday, December 30, 2014

Trial & Litigation Section: Misleading Statements Result In Reversals

By Caroline Johnson Levine

There are many elements required to present and complete a successful trial. Consequently, there are also many opportunities to execute an unforced error in the presentation of evidence, which may result in an appellate court reversal. Therefore, it is important to ensure that every attorney argues, and each witness testifies, in a manner that is not misleading to the judge or jury. The Florida Supreme Court recently held in Saunders v. Dickens, 2014 WL 3361813 (Fla. 2014), that an attorney’s misleading statements to the jury will result in a reversal if those statements result in harmful error.

Walter Saunders visited Dr. Dickens, a neurologist, “because he was experiencing back pain, leg pain, and unsteadiness on his feet,” and tingling and numbness in his hands. Id. at 1. Dr. Dickens believed that Saunders’ condition was caused in part by “peripheral neuropathy due to diabetes.” Id. However, Dr. Dickens did not perform any tests to confirm his diagnosis. An MRI revealed a narrowing of Saunders’ spinal canal, and Dr. Pasarin, a neurosurgeon, performed a lumbar decompression operation on Saunders. Unfortunately, the operation resulted in a progressively degenerative condition for Saunders and eventually led to his quadriplegia and death.

In Dr. Dickens’ medical malpractice trial, he “raised the affirmative defense that Dr. Pasarin’s negligence was the cause of Saunders’ injury,” and Dr. Pasarin was included in the trial as a Fabre defendant. Dr. Dickens presented expert witnesses who testified that Dr. Dickens was not negligent and that it was Dr. Pasarin who deviated from a reasonable standard of care.

In Saunders, the court discussed the “burden of proof in negligence actions.” Id. at 5. “The elements of a medical malpractice action are: (1) a duty by the physician, (2) a breach of that duty, and (3) causation.” Id. at 6; see also Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984). The duty of a physician is to practice the standard professional level of “care, skill, and treatment that in consideration of all surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably prudent health care providers.” Saunders, 2014 WL 3361813, at 6; see also § 766.102, Fla. Stat., (2013).

In closing statements, Dr. Dickens’ attorney improperly shifted the burden of proof by arguing that a “subsequent treating physician [Dr. Pasarin] would not have treated the patient plaintiff differently had the defendant physician acted within the applicable standard of care.” Id. at 8. Further, Dr. Dickens’ attorney misstated the law by arguing that Saunders was “required to establish only that Dr. Dickens’ care fell below that of a reasonably prudent physician and that, more likely than not, adequate care by Dr. Dickens would have prevented Mr. Saunders’ devastating injuries.” Id. at 7. The Florida Supreme Court held that the trial court erred in allowing Dr. Dickens' attorney to make those misleading arguments in closing. Id. Saunders demonstrates that it only takes a few errant words to reverse a jury verdict.

Monday, December 29, 2014

YLD President's Message: "Zealous Representation" Is Not An Excuse

By Anthony "Nino" Martino

A virtue taken too far can become a fault. The concept of zealous representation has a long tradition in the profession; however, the term "zeal" should not be conveniently misconstrued to mean “zealotry” in an attempt to excuse unethical or otherwise unprofessional conduct carried out in the name of furthering a client’s interests.

Where the lines are drawn and where the boundaries are between zealous representation and zealotry may not always be clear, but remember that competent and diligent representation of a client does not bind a lawyer “to press for every advantage that might be realized for a client." See Comment (1) to ABA Model Rule of Professional Conduct 1.3.  The question should always be asked whether the action/opposition (“advantage”) actually advances the client’s cause through the pursuit of truth, not whether it is simply an available means permitted by law that will make the opponent’s life more difficult. Being technically correct does not justify unprofessional or discourteous behavior and will actually undermine the client’s cause and hamper the administration of justice in that your opponent will almost certainly respond in kind. 

Zeal requires only that the client’s interests are paramount. This objective professional commitment to a client is compatible with civility, courtesy, and fair dealing. Although it is true that zealous representation includes strategy, the tactics used to advance that strategy are in the sole province of the lawyer. Civility is also a virtue, not a shortcoming. Willingness to temper zeal with respect for society’s interest in preserving responsible judicial process will help preserve it.

Ultimately, the effective representation of your client is not a zero-sum game rendering professional courtesy obsolete. In fact, a failure to adhere to these principles will almost certainly be a disservice to you and your clients in the long run, not to mention your reputation. The highest manifestation of professionalism is the exercising of dispassionate judgment without losing sight of legal and ethical boundaries. 

When in doubt, simply remember your oath: "I will maintain the respect due to courts of justice and judicial officers … I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor … To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.” See Oath of Admission to The Florida Bar.

Recent & Upcoming YLD Events:

The YLD’s Pro Bono Committee recently held a luncheon at the HCBA building showcasing a multitude of pro bono opportunities available to the young lawyers of Hillsborough County. Additionally, family forms clinics are planned for January 6, February 17, March 3, April 21, May 19, and June 2 from 5:30 to 7:30 p.m. on the second floor of the George Edgecomb Courthouse. Please contact Ella Shenhav or Katelyn Desrosiers to get involved in any of the YLD’s pro bono activities.

Saturday, December 27, 2014

Executive Director's Message: Chief Justice Jorge Labarga's Long Journey From Cuba To Tallahassee

By John F. Kynes

Florida Supreme Court Chief Justice Jorge Labarga’s keynote address to Hillsborough County Bar Association members was one of the highlights at the 18th Annual Bench Bar Conference, Membership Luncheon, and Judicial Reception held on October 30 at the Hilton Tampa Downtown.

Installed this past June as Florida’s first Cuban-American chief justice, Labarga, in his remarks, recalled celebrating the Cuban Revolution in 1959 as a young boy in Cuba by riding around town in his father’s Chevy Bel Air and honking the horn. In a sad twist, however, Labarga said his father fled Cuba in 1961 in fear for his life because he was considered a threat to the new Marxist government under Fidel Castro.

After the Cuban Missile Crisis in 1962, and a detour for a time in Mexico City, Labarga and his other family members were reunited with his father in America in 1963 in the small South Florida sugar mill town of Pahokee. Labarga said the dramatic events he witnessed as a young boy helped him develop a “sense of democratic ideals and a respect for the rule of law.”

“I knew at age 11 that I wanted to be a lawyer,” said Labarga, who got his undergraduate and law degrees from the University of Florida. 

Appointed to the Supreme Court in 2009 by then Gov. Charile Crist, Labarga reminded the more than 500 people in attendance about the crucial role lawyers have in safeguarding democracy. “It is important that we not lose sight of the significant, if not vital, role the American lawyer has played, and must continue to play, in advancing our democratic ideals and in the furtherance of the preservation of the rule of law,” Justice Labarga said. 

“A constitution, no matter how well written it is, and the protections it provides or promises, at the end of the day, is just words on paper,” he said. “It is up to 'we the people' of this country to make it work.” 

Concluding his remarks, Labarga said that during his term as chief justice he intends to focus on increasing access to justice for all Floridians, including working-class citizens who can’t afford to hire a lawyer and who don’t qualify for legal aid.


The theme for this year’s Bench Bar Conference was “The Future Is Now: Law Meets Technology.” Thirteenth Judicial Circuit Judges Caroline J. Tesche and Samantha L. Ward were the conference co-chairs.

Both judges worked for months with other dedicated Bench Bar Committee members, HCBA CLE Director Monique Lawson, and other HCBA staff members planning the conference.

“This year’s Bench Bar Conference proved to be truly exceptional,” Tesche said. “We owe special thanks to all the stellar presenters and panelists who put so much effort into making their sessions both substantive and timely.”

There were a record number of attendees at the various CLE breakout and plenary sessions held throughout the day. The afternoon plenary session featured noted Florida State University Law Professor Charles Ehrhardt, who spoke on evolving evidentiary issues.

In addition, after the afternoon plenary session, Ben Hill III and current HCBA President Ben Hill IV introduced a special video tribute to the group of local judges who retired in 2014.

Later in the day, more than 400 HCBA members enjoyed the camaraderie provided at the annual Judicial Reception at the Hilton.

“I think the record number of attendees shows the commitment our local legal community has to enhancing collaboration and professionalism between the Bench and Bar,” Ward said.

Special thanks and gratitude need to go out to the many generous sponsors that helped make this year’s conference possible, especially the Diamond Sponsor, Steve Yerrid and The Yerrid Law Firm.

Planning is already underway for another great conference next fall.

See you around the Chet.

Tuesday, December 23, 2014

Editor's Message: A Tribute To Judge Sam Pendino

By Ed Comey

Not long after I started practicing, a colleague asked me where I saw myself in five years. That’s a fairly standard interview question, but frankly one I hadn’t given much thought to at the time. Seeing I was stumped, my colleague tried to help by suggesting that I consider how I wanted to be remembered. As the years passed, I realized I was content to be remembered as Nancy Comey’s son. I’ve always admired my mom for many reasons (her work ethic, humility, sense of humor) but most of all for the love she has for her family and her willingness to always put her family first. What a way to be remembered, I thought! I was reminded of that story when I sat down to write this tribute to Judge Sam Pendino for his retirement.

Judge Pendino has lived a remarkable life. Born and raised in West Tampa to Italian immigrants, he watched his father, a first-generation American, labor as a carpenter in the shipyards here in Ybor City to support his family. Growing up as the son of a blue-collar worker in a house where little English was spoken, Judge Pendino realized education was the key to making a better life for himself. That led him on a journey from Stetson University in DeLand to the Cumberland School of Law, where he earned his law degree. Afterwards, he spent nearly two decades in practice until he was elevated to the bench, first as a county court judge and later as a circuit court judge. Becoming a circuit court judge in the same city where you were raised by first-generation immigrant parents is quite an accomplishment. 

But when you talk to people about what is important to Judge Pendino, none of them mention his professional accomplishments — becoming a judge, presiding over interesting and noteworthy cases, or making important rulings that have affected people’s lives and shaped the law. Instead, they talk about his work ethic and how much he values education. Most of all, though, they talk about how important his family is to him. 

Despite all of the demands of being a lawyer and serving on the bench, Judge Pendino has always made a point to put his family first. Along the way, he raised three children — Krista, Sam, and Lydia — who have undoubtedly made their father proud. All three have taken heed of the importance he put on education. Both Krista and Sam graduated from law school. Lydia earned a degree in nursing from the University of South Florida. And if you asked them, I’m sure they’d tell you about how much it has meant to them that their dad always put family first.

As I sit here, I wonder how Judge Pendino would have answered the question “Where do you see yourself five years from now?” when he was a young lawyer. How would he have wanted to be remembered when his career was over? My guess is it would have had something to do with being a good father. People who know him say Judge Pendino has long recognized the truth of what well-known journalist Charles Kuralt once observed: “The love of family and the admiration of friends is much more important than wealth and privilege.” I’m confident nobody will be writing a tribute about me when I retire, but if somebody does, I hope I’d be remembered the same way Judge Pendino is.

Monday, December 22, 2014

Professionalism & Ethics Committee: Resolving Professionalism Complaints

By Thomas Newcomb Hyde

In a 2013 opinion, the Florida Supreme Court established a Code for Resolving Professionalism Complaints and directed the chief judge of every circuit to develop a Local Professionalism Panel to receive, screen, and act upon complaints of unprofessional conduct. In re: Code for Resolving Professionalism Complaints, 116 So. 3d 280 (Fla. 2013).

The opinion notes that The Florida Bar requested the court create a “Commission on Professionalism with the overarching objective of increasing the professionalism aspirations of all lawyers in Florida.” Id. at 280 (emphasis added).

The court established the Code for Resolving Professionalism Complaints as a structure for affirmatively addressing unacceptable professional conduct and noted that the code “contains small initial measures designed to firmly encourage better behavior.” It attempts “to utilize a wide range of interventions from mere conversations to written communications to more severe sanctions.” Id. at 281 (emphasis added).

Florida lawyers may then ask: Are the professionalism standards aspirational to encourage better behavior or are they mandatory and the basis for discipline for unethical conduct? The court answers this question by explaining that professionalism is not “simply an issue of rule-following or rule-violating.”

The opinion does not create a new code of “professional” or “unprofessional” conduct. Rather, the court adopts the existing Standards of Professionalism found in the Oath of Admission to the Florida Bar, The Florida Bar Creed of Professionalism, The Florida Bar Ideals and Goals of Professionalism, The Rules Regulating the Florida Bar and the decisions of the Florida Supreme Court. Id. at 282.

Thus, members of The Florida Bar are enjoined from engaging in “unprofessional conduct.” And when the unprofessional conduct demonstrates substantial and repeated violations of the Standards of Professionalism, the unprofessional conduct can subject an attorney to discipline as a violation of Rule 4-8.4(d) of The Rules Regulating the Florida Bar.

Under Rule 4-8.4(d), a lawyer shall not “engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis.” R. Regulating Fla. Bar. 4-8.4(d).

The court referenced a dissolution of marriage case where the lawyer made unethical, disparaging, and profane remarks to belittle and humiliate the opposing party and her lawyer. He referred to the opposing party as “crazy” and a “nut case.” He also made facial gestures and stuck his tongue out at a deposition and called opposing counsel a “stupid idiot” who did not know the law and needed to go back to law school. These and other repeated violations were deemed to be sufficient for discipline under Rule 4-8.4(d). The Florida Bar v. Martocci, 791 So. 2d 1074 (Fla. 2001).

Thus, the question of resolving professionalism complaints is not simply an issue of rule-following or rule-breaking. They may be resolved in the Local Professional Panel through conversations or written communications, but it may require more severe sanctions if necessary.

Saturday, December 20, 2014

Workers' Compensation Section: Court Says Florida Workers’ Comp Law Is Unconstitutional; Legislature Cheated Injured Workers

By Warren K. Sponsler

That was the headline in the Miami Herald on Thursday, August 14, and similar headlines in other newspapers throughout the state. The Florida Workers’ Compensation Law is unconstitutional. The Legislature has cheated the state’s injured workers. Such a ruling will obviously have a dramatic impact on employers, insurance carriers, injured workers, and attorneys … or will it?

The article featured in the Miami Herald and other publications involved a ruling by Circuit Court Judge Jorge E. Cueto, sitting on the bench in Miami-Dade County in the Circuit Court of the Eleventh Circuit. The ruling was actually issued on the basis of an order on an amended motion for summary judgment.

First and foremost, it should be noted that the order issued by Judge Cueto did not arise from a workers’ compensation hearing. In Florida, the Division of Administrative Hearings and, more specifically, the Office of the Judges of Compensation Claims, has exclusive jurisdiction over the adjudication of workers’ compensation claims. The matter in which Judge Cueto issued a ruling stemmed from a claim brought by Elsa Padgett, who was a Miami-Dade County government office worker. The case, formally styled as Padgett v. State of Florida, Office of the Attorney General, arose from an injury suffered by Padgett when she tripped over boxes left on the floor by a co-worker on January 27, 2012. The facts of the case show that Padgett suffered a significant injury that resulted in a shoulder replacement surgery. Rather than pursue benefits through the workers’ compensation system, Padgett filed a negligence personal injury lawsuit against her employer. The suit was filed in the Eleventh Judicial Circuit Court in Miami-Dade County, which was the appropriate venue for Padgett’s personal injury claim. As one might suspect, Padgett’s employer immediately defended the case on the basis of immunity, asserting that workers’ compensation benefits were the sole remedy available to Padgett based upon section 440.11, Florida Statutes, also known as the “exclusivity” provision of the Workers’ Compensation Act.

As it stands now, the result of the order entered in Miami-Dade County is that section 440.11 has been declared unconstitutional, meaning that the Workers’ Compensation Act should no longer be the exclusive remedy for injured workers. In fact, the court found that the exclusivity provision of the Workers’ Compensation Act violated the due process clause of the 14th Amendment of the U.S. Constitution; the Access to Court’s Provision of Article I, Section 21, of the Florida Constitution; the Florida Constitution’s right to trial by jury; and the Florida Constitution’s right to be rewarded for industry.

Although some will certainly view the order granting the amended motion for summary final judgment a victory for injured workers, in the end, its application will likely be limited. This is primarily due to the fact that the Florida Supreme Court is the ultimate authority on issues involving constitutionality. It seems unlikely that the immunity provisions of the act will be invalidated, but there are two other challenges to provisions of the act before the Supreme Court that are likely to be decided soon. Although it is clear that the headline is dramatic, it is equally as clear that the immunity provision remains valid elsewhere in the state and has not yet been stricken by the Florida Supreme Court. Regardless, this will certainly be an interesting year in Florida workers’ compensation and likely an issue that will not be put to rest for many years to come.

Wednesday, December 17, 2014

Securities Law: Who Is A “Customer” Under FINRA Rule 12200?

By John Benson

The Second Circuit Court of Appeals recently explored the precise boundaries of the term “customer” as it is used in the Financial Industry Regulatory Authority’s (FINRA) rules when determining whether an individual could compel arbitration. Less than one month later, a Florida state court delivered an opinion on the same issue.

In Citi Global v. Abbar, 761 F.3d 268 (2d Cir. 2014), Abbar, trustee of the Abbar family trusts, lost $383 million of trust assets that had been invested through Citi UK. Citi UK was a foreign affiliate of Citigroup Global Markets Inc. (Citi NY), a FINRA member incorporated in New York. Although Abbar paid only Citi UK for brokerage services, some of the investment bankers who helped Abbar manage the investments were employed by Citi NY. When the investments lost value, Abbar commenced a FINRA arbitration against Citi NY. Citi NY filed an action in court to enjoin the arbitration, arguing that FINRA rules mandate arbitration only if the claimant is a “customer” of Citi NY. The district court concluded Abbar was not a customer of Citi NY and, therefore, not entitled to arbitrate the dispute pursuant to the FINRA dispute resolution process. The Second Circuit affirmed, reasoning that: A “customer” under FINRA Rule 12200 is one who: “(1) purchases a good or service from a FINRA member, or (2) has an account with a FINRA member.” Id. at 275. Although Citi NY employees provided services to Abbar, all fees for those services were paid to Citi UK, not Citi NY. The court concluded that Abbar’s customer relationship with Citi UK did not permit him to compel arbitration against a corporate affiliate. Id.

Florida's Fifth District Court of Appeal recently followed suit in Grant v. Rotolante, 2014 WL4249753 (Fla. 5th DCA August 29, 2014). Grant, a FINRA-registered representative, and Rotolante were friends and neighbors. Rotolante solicited Grant’s advice regarding her finances. Grant gave her advice and accompanied her to meetings with her financial advisor. After suffering investment losses, Rotolante commenced an arbitration against Grant. Relying on the language of FINRA Rule 12200, the court concluded Rotolante was not Grant’s customer. She “never opened an account with Mr. Grant, deposited any money or securities with Mr. Grant, purchased or sold any securities from or through Mr. Grant, or paid Mr. Grant any compensation.” Id. at 6.

“The [Federal Arbitration Act] reflects the fundamental principle that arbitration is a matter of contract,” Rent-A-Center v. Jackson, 561 U.S. 63, 67 (2010), and whether a customer relationship has been established under FINRA regulations hinges, in part, on the existence of common law contract consideration. In both Citi Global and Grant, the would-be customer received services from a FINRA member but never paid that member for those services and, therefore, was not a customer. 

Monday, December 15, 2014

Real Property, Probate & Trust Law: Can We Get Some Service Here, Please?

By Michael R. Kangas

Getting good service in a downtown restaurant at lunchtime is sometimes difficult. However, getting good service in a trust proceeding is sometimes even harder, until recently.

Effective October 1, 2013, the Florida Trust Code permits service of process by any form of mail, or commercial delivery service, requiring a signed receipt in in rem and quasi in rem trust proceedings. § 736.02025(2), Fla. Stat. (2013). Previously, litigants seeking in rem or quasi in rem relief in trust matters were required to serve process as provided for in Chapter 48, just as in any other civil proceeding.

The new procedure is similar to the procedure for service of formal notice in probate proceedings under Florida Probate Rule 5.040. Like Rule 5.040, section 736.02025 allows a plaintiff to serve process by sending a copy of the summons and complaint to the defendant or to a person authorized to receive service on behalf of the defendant as provided for in Chapter 48, Florida Statutes. However, the summons and complaint must be sent by a method that requires a return receipt. This would include commercial delivery services as well as certified mail. Proof of the service is then made by a verified statement of the person serving the summons that attaches the signed receipt or other evidence that the delivery was made to the addressee or other authorized person.

Unlike Rule 5.040, however, section 736.02025(3) also provides for service by first-class mail. This method of service is limited to three circumstances: (1) Service by a method requiring a signed receipt is not available; (2) delivery is attempted and is refused; or (3) delivery by mail requiring a signed receipt is unclaimed after notice to the addressee. If service of process is obtained under the provision providing for service by first-class mail, proof of service is then made by a verified statement stating the basis for service by first-class mail, the date of mailing, and the address to which it was mailed.

This statute will not get you that lunchtime salad any faster, but it should help a lot in your next trust proceeding in rem or quasi in rem.

Wednesday, December 10, 2014

Mediation And Arbitration Section: Go Get Me The Money! – Part 1

By Charles W. Ross

Many litigation-based mediations are purely “distributive” in nature. Settlement is achieved through negotiations that lead one party to pay money to another in order to end a lawsuit. Personal injury cases, construction litigation, employment claims, and business disputes often fall within this distributive arena, where position-based bargaining over money is the task at hand.

If the objective of such negotiations is to reach a “number,” should trial counsel inform the mediator of a party’s “bottom-line” figure? If the “best number” is disclosed to the mediator early in the mediation process, will that expedite settlement? It is my view that the answer to these questions is “no.”

In almost every mediation, the parties begin their negotiations with a final number in mind, and they usually expect that the other side must reach their figure if the case is to settle. However, the real truth is that these targeted numbers almost never work at mediation – the plaintiff’s “lowest number” is always higher than the settlement limits formulated by the defendant or its insurance carrier. If both sides simply hold their initial positions, impasse is almost guaranteed.

Since each side’s “walk-away” numbers do not overlap, focusing on these numbers as a strategy for settlement is unproductive. By revealing such information to the mediator, and by discussing the targeted outcome during mediation, the bottom-line number becomes fixed, positions harden, and the figure is given an unwarranted importance.

The real magic in mediation happens after the parties reach their original targeted numbers and then elect to continue negotiating to close the settlement gap. This occurs when lawyers and their clients use mediation to explore and re-evaluate their positions in the litigation. Discussions among the mediator, counsel, and the client about the strengths and weaknesses of the case; the risks of an unfavorable result at trial; costs of continuing the lawsuit; the challenges of collecting a judgment; and the time and emotional demands of litigation are all useful topics.  The parties are encouraged to compare their settlement opportunities with the trial option and select the path that works best for them. Although the party’s right to self-determination is paramount in Florida mediations, a conversation about such issues helps the client make informed and rational decisions about settlement.

When these re-evaluations occur in an honest and open fashion at mediation, new bottom-line numbers should emerge, and they are more likely to result in settlement. Stated differently, a party’s walk-away number at the beginning of the mediation will change over time, and that figure transforms into a better figure at the end of the day if settlement is that party’s objective. 

Tuesday, December 9, 2014

Stetson Hosting “Inclusion Summit: Developing Cultural Competence”

Cultural competence is essential to developing, attracting, and retaining top talent. It is the key to fostering an energized, optimally productive work environment. It also supports business growth and promotes strong community networks.

Stetson University College of Law invites the local legal community to participate in the Inclusion Summit: Developing Cultural Competence, a one-day event on Feb. 6, 2015, featuring national thought leaders who will share best practices in inclusion and cultural competence for individuals and organizations. The daylong program begins at 8:30 a.m., concluding at 5 p.m. with a cocktail reception and networking opportunity from 5 to 7 p.m.

The highlight of the Inclusion Summit will be Vernā Myers, a nationally recognized expert on diversity and inclusion. Myers is a dynamic speaker, author, and advisor on creating a culture of inclusion. She will be joined by other industry leaders, including Andrew Corty, president and publisher of Florida Trend.

Sessions and topics include:

- What If I Say the Wrong Thing?
- Habits for Culturally Effective People
- The Changing Face of Florida
- The Personal and Professional Value of Creating a Culture of Inclusion
- Panels sharing best practices for making inclusion a reality

The early registration rate ends Dec. 12, with seating limited to the first 200 participants.

For information, visit www.stetson.edu/inclusionsummit.

Monday, December 8, 2014

Marital And Family Law: Are All Sales Final? Enforceability Of A Marital Agreement

By Richard J. Mackler

In family law, perhaps more so than most practice areas, people sign financial agreements based on emotions, inappropriate or misguided expectations, or other reasons far afield from the terms of the deal.

People also sign agreements at very different stages of the marital relationship life cycle.  A young bride-to-be may sign a prenuptial agreement thinking that her fiancé will take care of her forever. A party may sign a post-nuptial or marital settlement agreement thinking that doing so will save their marriage. Some parties to a crumbling relationship will sign an agreement due to pressure and without understanding their legal rights. Others will not sign anything until their lawyer has filed for divorce, taken extensive discovery, and thoroughly analyzed the parties’ incomes, assets, and liabilities. The stage at which a marital agreement is executed is an important factor in determining whether the agreement is enforceable.

Two parties who are married or contemplating marriage are in a fiduciary relationship that requires them to act with a heightened obligation of good faith. See Del Vecchio v. Del Vecchio, 143 So. 2d 17, 21 (Fla. 1962). These parties are not dealing at arm’s length, and courts must carefully examine their circumstances to determine the validity of their agreements. Courts recognize that there is a “vast difference between a contract made in the market place and one relating to the institution of marriage.” Lashkajani v. Lashkajani, 911 So. 2d 1154, 1158 (Fla. 2005). 

A marital settlement agreement, like any contract, may be set aside where the agreement is the product of fraud, deceit, duress, coercion, misrepresentation, or overreaching. See Casto v. Casto, 508 So. 2d 330, 333 (Fla. 1987).

Pre-marital agreements, post-nuptial agreements, and marital settlement agreements executed before the parties enter into contested litigation may also be set aside where the agreement is unreasonable or unfair and the challenging spouse did not have adequate financial disclosure. See Casto, 508 So. 2d at 334-35. In making this determination, a court will presume that any financial disclosure was unfair. The court may also look at whether there was pressure surrounding the signing of the agreement, the value of the parties’ respective interests, the disparity between the business experience of the parties, and whether the objecting party had approximate knowledge of the marital assets and liabilities at the relevant time. See, e.g., Kearney v. Kearney, 129 So. 3d 381, 386 (Fla. 1st DCA 2013).

Once the parties are “in litigation,” they are no longer dealing with one another as fiduciaries, and the agreement will not be set aside simply because the terms might be viewed as unfair. See Petracca v. Petracca, 706 So. 2d 904, 911 (Fla. 4th DCA 1998). In litigation, parties are entitled to enter into bad agreements. And, after the parties have had access to discovery procedures, any attempt to set aside a settlement agreement must satisfy the more stringent standard set forth in Florida Rule of Civil Procedure 1.540. See Macar v. Macar, 803 So. 2d 707, 712-13 (Fla. 2001).

Friday, December 5, 2014

Labor And Employment Law: Recent Developments In Pregnancy Discrimination Law

By Andrew W. McLaughlin

On July 14, the Equal Employment Opportunity Commission issued new enforcement guidance for pregnancy discrimination. The guidance addressed a number of pregnancy-related employment issues, including when an employer is obligated to offer light duty to pregnant employees. Under the Pregnancy Discrimination Act (PDA), employers must treat pregnant employees the same “as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). Generally, if an employer provides light duty to other disabled employees, the employer must provide light duty to pregnant employees. Employers that offer light duty may place reasonable restrictions on the light duty, such as limits on the number of light-duty positions or the duration of light-duty assignments so long as the restrictions are equally applied to both pregnant and non-pregnant employees.

The law is unsettled on whether employers that only offer light duty to employees injured on the job must also offer light duty to pregnant employees who require it, even if the employer does not offer light duty to employees with non-job-related injuries.

In its July 14 enforcement guidance, the EEOC takes the position that if an employer offers light duty to any other employee, it must similarly offer light duty to pregnant employees on the same terms. The guidance states that a policy that distinguishes between pregnant and non-pregnant workers who are similar in their ability or inability to work based on the cause of the employee’s limitation violates the PDA. The EEOC also suggests in the enforcement guidance that policies limiting light duty to employees injured on the job may have an adverse impact against pregnant employees and women.

The EEOC’s position in its enforcement guidance is contrary to Eleventh Circuit precedent, which has held that employees injured on the job may be treated differently from employees with non-work-related conditions including pregnancy. See Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1313 (11th Cir. 1999), Abbott v. Elwood Staffing Servs., 2014 U.S. Dist. 2014 WL 3809808 (N.D. Ala. July 31, 2014). The Fourth, Fifth, Seventh, and Eighth Circuits follow the Eleventh Circuit. The Sixth and Tenth Circuit follow the position in the EEOC guidance.

The Supreme Court will address the circuit split on this issue when it reviews the Fourth Circuit’s ruling in Young v. UPS, 707 F.3d 437 (4th Cir. 2013). In Young, which involved an employee challenging the light-duty policies, UPS offered light duty for individuals with workplace injuries but did not offer light duty to individuals with non-work-related injuries or physical conditions, including pregnancy. The district court held that UPS’s policy treated both pregnant workers and non-pregnant workers the same and therefore was not discriminatory. The Fourth Circuit upheld the district court’s ruling. The Supreme Court will likely hear the case during its 2015 spring term.

Thursday, December 4, 2014

Special Feature: Parting Words Of Chief Judge Manuel Menendez Jr.

By David A. Rowland

The Final Jeopardy!® clue:


If your Final Jeopardy! ® answer is “Who is Chief Judge Manuel Menendez Jr.?” then you win the grand prize.

Appointed to the county bench in 1983 and to the circuit bench the following year, Judge Menendez was unanimously elected as chief judge in 2001 and has served in this leadership position ever since. Judge Menendez is a past recipient of the Robert W. Patton Outstanding Jurist Award, served as past chair of the Conference of Circuit Judges of Florida, and is past chair of several Florida Bar committees. While with the U.S. Attorney’s Office, he was active in the Federal Bar Association, serving as vice president of the Jacksonville chapter and president of the Tampa Bay chapter. A big proponent of legal education and judicial education, he served several years on the faculty of the Florida Judicial College, the Prosecutor/Public Defender Trial Training Program at the University of Florida College of Law, and The Florida Bar Advanced Civil Trial Advocacy Program. Since becoming chief judge, he has served as chair of this circuit’s Professionalism Committee. Judge Menendez is also an active member of the J. Clifford Cheatwood American Inn of Court and the Herbert G. Goldberg-Ronald K. Cacciatore Criminal Law American Inn of Court.

In light of Chief Judge Menendez’s retirement in December, and with apologies to Tom Elligett for borrowing his interview-style approach to getting answers readers of the Lawyer magazine want to know, Judge Menendez good-naturedly agreed to the following interview with David Rowland, general counsel of the Thirteenth Judicial Circuit.  

You have seen many changes in the legal profession during your more than 30 years on the bench. What do you think is the most profound change in the courts since you became chief judge?

There are two things that stand out as sea changes to the courts during my tenure as chief judge. First and foremost was our undergoing a big shift in how our court system was to be funded with the passage of what was then called Revision Seven to Article Five of our Florida Constitution. Revision Seven reallocated the responsibility for funding of the state court system, placing a majority of that on the state of Florida. Prior to then, we received a majority of our funding from the 67 counties. When considering implementing legislation, the Legislature began the process of designing what the court system would consist of in the future. Consequently, there was a great deal of effort focused on convincing them to include, for example, positions such as court counsel. We pushed for a court system model in which we would have certain elements included. We wanted court administration, due process positions (court reporters and interpreters), court counsel, staff attorneys, magistrates, and hearing officers – a myriad of positions that were essential to providing the public with a court system they deserved. We were largely very successful.

Then, of course, we had the problem of funding the court system. Adequately funding of the court system has been a bit of a struggle through the years, especially during the most recent economic setback. We all suffered through it just like everybody else in the state and the country.

The next biggest area of change is what we are currently experiencing with our court system evolving into the electronic era – the advent of mandatory e-filing, leading ultimately to no paper court files.

What do you see as the biggest challenge facing the courts in the next five to 10 years?

Unfortunately, once again, funding appears to be the key issue. It seems like we have to re-educate the Legislature every year as to what we do, why we do it, and why we need the funding. In large part, this is because of the term limits that we have with our Legislature. There is not much institutional memory up there in Tallahassee. But getting past that, I believe we’re going to be having some issues in the future with continued increased filings. We haven’t yet finished dealing with the foreclosure mess for example; we have a backlog of cases there. Processing cases in a timely manner so that the public is able to access the courts is extremely important. We’re also going to have to learn to deal with the electronic age a little bit better.

What is your best advice for young lawyers just starting their careers in today’s legal culture?

I would advise young lawyers to seek out a mentor, someone who has some experience, who’s respected. Watch experienced lawyers perform the trade. Try to spend as much time as you can learning. Also, don’t shortchange your clients. Communicate with them. Return their phone calls. Avoid the mistake of not being answerable to your clients. Always seek to learn, to engage. Join the HCBA. Meet others in the profession; keep it collegial. It is a collegial profession; it is supposed to be. Avoid getting pulled into the mud as is sometimes seen with some of our lawyers who for some reason feel like it is a trial by ambush, a war with hatchets and axes. It shouldn’t be that way. It has always been a collegial profession, and we should all strive to maintain that.

I know you have lots of memorable stories of your time on the bench and have handled thousands of cases during your judicial career. What is one of your fondest memories of your time on the bench?

I have many fond memories, and most of them deal with the investiture ceremonies for new judges. They are always very interesting, and I always learn something I did not know about a new colleague each time. These ceremonies are also a lot of fun. I’ve had the opportunity to actually preside over 40 investiture ceremonies of new judges since I became chief judge, and I attended many others before then. Every single one has been a wonderful experience.

What do you think was the most impactful decision you made while on the bench?

Every decision that a judge makes has a significant impact on the litigants, if nobody else. Going beyond that, some decisions are impactful because of the impact they may have on the community as a whole or because of some precedential value. Although there may be a number of decisions that fit into that category, two come to mind as I sit here talking with you.

One is the case involving the city of Tampa’s human rights ordinance. In the 1990s, the city had passed a human rights ordinance prohibiting discrimination on the basis of, among other things, sexual orientation. Subsequently, there was a petition circulating that, with enough signatures, would place on the ballot a referendum repealing that portion of the ordinance that banned discrimination based on sexual orientation. A lawsuit was commenced seeking removal of the referendum from the ballot, and I was assigned the case. And I made the decision to remove the referendum from the ballot because the law required that the wording on the ballot referendum be the exact same language as that used in the petition for obtaining signatures for the referendum. And there were some slight differences in the language. That decision was affirmed on appeal. The matter was not voted on, and the ordinance was never again attempted to be repealed.

Another case that comes to mind is one that dealt with child support enforcement orders. One of the parents had funds in a city firefighters and police union pension. An argument was made that the pension fund was exempt from garnishment because the fund was passed by special law and the special law exempted the pension fund from garnishment. I found, contrary to what other judges across the state had found, that the retirement benefits in pension funds were subject to garnishment because the general law enacted after the special law specifically included pension funds in the definition of “income.” The pension fund board of trustees appealed to the Second DCA, which reversed the decision, but the appellate court certified a question of great public importance to the Florida Supreme Court. The Florida Supreme Court noted that the trial court’s finding – that when a special law and a subsequent general law conflict, the latest expression of legislative intent controls – was correct, and the Second DCA was wrong. This was another impactful decision if for no other reason it provides me the opportunity to occasionally but good-naturedly harass my colleagues at the Second DCA.

During your first few months as chief judge, I recall you saying that you had not realized the scope of responsibilities of the chief judge. What are people’s biggest misperceptions about the chief judge position?

Some people have a misunderstanding that a chief judge is like the “chief” of judges and is akin to an appellate court. These folks believe that the chief judge is empowered to change a decision of a trial judge with the stroke of a pen. Thankfully, that of course, is not the case. A chief judge does have the privilege of developing relationships with our county commissioners, state legislators, state attorney, public defender, sheriff, and the clerk of court with the goal of creating the best court system in the state! But we all know that the real function of the chief judge is to sit at the head table at Bar luncheons!

The Tampa Bay area has grown tremendously during your judicial career. Our area offers a variety of activities, events, and eateries. Tell us what you like to do in your free time.

I enjoy reading novels and the daily newspapers, and on occasion I watch a little television. My favorite show, Breaking Bad, recently ended. I thought it was one of the greatest shows ever on TV. I have not gotten into another series yet, but people tell me I should watch The Wire. Because of the wonderful weather we have, I also enjoy going out for a little jog or a walk periodically during the week to get the juices flowing. Recently I took some kayaking lessons and enjoy that when there is good weather. I also enjoy going out and catching a Rays game on occasion. I haven’t played golf in years, but maybe I’ll see if I can find my clubs and take that up again. There are a whole slew of restaurants that are wonderful in the area, but unfortunately one of my favorite ones just closed down, that being CDB’s Southside on Westshore. Hopefully at some point Pat Iacovella will relocate. And although not necessarily in the Tampa Bay area, I enjoy traveling about two hours up the road to Gainesville to enjoy intercollegiate sporting activities.

Speaking of Gainesville, your double-degree Gator background is well known, having graduated from the University of Florida in 1969 and UF’s College of Law in 1972. What many people probably do not realize is the extent to which your office is furnished with virtually every type of Gator memorabilia that exists. Where are you going to display all of these memorabilia upon your retirement?
Well, I don’t think I have all that much paraphernalia in here. But the big problem will be finding a location. Maybe I’ll have an auction or take them up to Gainesville and sell them out of the back of my truck at a Gator game. I think I’ll be allowed to keep some of the stuff in the house but not all. I’ll have to negotiate that.

After more than three decades on the bench, what are your retirement plans?

Three decades? Wow! My retirement plans are still a work in progress. I’d like to travel some, maybe do some teaching. I serve on some charitable boards and would like to continue with that and perhaps do some other volunteer work. I may try my hand at mediation and arbitration and maybe even practice some law. One thing I will not do is try to run a marathon! I will stick to an occasional 5K race! And I am contemplating writing a book exposing all the secrets of our court counsel!

[The author is convinced that our soon-to-be-former chief judge would be more concerned about this author contemplating writing a book concerning the judge’s secrets than vice versa!]

Judicial Vacancy On Hillsborough County Circuit Court

The Thirteenth Circuit Judicial Nominating Commission has announced a vacancy on the Hillsborough County Circuit Court, created by the retirement of Judge Debra Behnke. The commission is now accepting applications for one circuit court judge position. To be appointed, applicants must be residents of Hillsborough County, registered voters, and members of The Florida Bar for the past five years.

Applications can be downloaded from The Florida Bar's website.
Applicants will be asked to provide their names, addresses, telephone and fax numbers, and e-mail addresses to facilitate communication with the commission.

Applicants must submit a fully completed original and one copy of the application, along with a photograph attached to the original and to the copy, to Terri Gaffney, chair of the Thirteenth Circuit Judicial Nominating Commission, 1311 N. Westshore Blvd., Suite 101, Tampa FL 33607, no later than 5 p.m. December 29. Incomplete applications will not be considered.

In addition to the original and one copy, applicants are requested to provide one electronic unredacted (PDF) copy of the application and one electronic redacted (PDF) copy of the application. Any material redacted by the applicant must be limited to exempt or confidential information pursuant to Chapter 119, Florida Statutes, Florida’s Public Records Law.

Applicants and the public will be advised in subsequent news releases of dates of commission meetings related to filling this vacancy. The commission will submit the names of nominees for this vacant judgeship to Governor Rick Scott by February 2, 2015.

A list of members of the Thirteenth Circuit Judicial Nominating Commission is available from The Florida Bar’s website. Questions should be directed to Gaffney at (813) 287-1159 or

Tuesday, December 2, 2014

Intellectual Property Law: Disgorgement Of Profits - To The Judge Or The Jury?

By Eric Pellenbarg

Under the Lanham Act, an infringer can be forced to disgorge profits made on sales of infringing goods. However, the issue of whether the equitable remedy of disgorgement should be decided by the court or by a jury is unsettled in the Eleventh Circuit and should be something practitioners plan for in preparing their case for trial.

An accounting for a trademark infringer’s profits is based on the equitable theory of unjust enrichment. See 15 U.S.C. § 1117(a) (providing that “the plaintiff shall be entitled … subject to the principles of equity, to recover … defendant’s profits”); Babbit Electronics, Inc. v. Dynascan Corp., 38 F.3d 1161, 1182 (11th Cir. 1994) (citing Maltina Corp. v. Cawy Bottling Co., Inc., 613 F.2d 582, 585 (5th Cir. 1980)). Claims that are purely equitable in nature should be decided by a court, not by a jury. Kovelesky v. First Data Corp., 534 Fed. Appx. 811, 815 (11th Cir. 2013) (citing Ford v. Citizens & S. Nat'l Bank, Cartersville, 928 F.2d 1118, 1122 (11th Cir. 1991)). Notwithstanding the statutory pronouncement that disgorgement of profits is an equitable remedy, the Eleventh Circuit’s civil pattern jury instructions include questions asking the jury to determine the proper amount of disgorgement. See Eleventh Cir. Civil Pattern Jury Instructions (2013) at 643. Interestingly, the comments to the pattern instructions recognize a split in authority outside the circuit exists on the issue of whether the question of disgorgement should be submitted to the jury and acknowledge that there is no Eleventh Circuit precedent on point. Id. at 653. The comments indicate that the pattern instructions do not seek to resolve the issue, only to provide guidance “to the extent that the accounting remedy is referred to a jury.” Id.

Courts in the Middle District are divided on whether to submit the issue of disgorgement of profits to a jury. See, e.g., Gen. Motors Corp. v. Phat Cat Carts, Inc., 504 F. Supp. 2d 1278, 1291 (M.D. Fla. 2006) (holding non-jury evidentiary hearing to determine damages under 15 U.S.C. § 1117); but see Health & Sun Research, Inc. v. Australian Gold, LLC, 2014 WL 2801257, at *1, (M.D. Fla. Jun. 19, 2014) (disgorgement of profits submitted to jury).

Given this backdrop, practitioners should be sure to consider who they want to consider their request for disgorgement of profits, as well as how they will try to persuade the court to decide the issue in their favor. One downside to submitting the issue to the jury is the lack of depth in the pattern jury instruction when it comes to disgorgement of profits. Judges are often hesitant to stray from the pattern jury instructions, making it difficult to customize the instruction to a particular case. Submission to the court, on the other hand, provides the opportunity for full briefing of the issue and the ability to further support your arguments through the introduction of testimony and relevant evidence, which likely will result in a more comprehensive presentation and, hopefully, a better result.

Monday, December 1, 2014

Applicants Sought For Statewide Prosecutor

The Florida Supreme Court Judicial Nominating Commission is seeking qualified applicants to fill the position of statewide prosecutor. The appointment takes place every four years, according to Section 16.56, F.S.

Applicants must be an elector of the state, a member of The Florida Bar for the preceding five years, and must devote full-time to their duties and not engage in the private practice of law. The Judicial Nominating Commission will nominate not less than three people to the attorney general, who will appoint the statewide prosecutor for a term of four years, to run concurrently with the term of the attorney general. The person appointed statewide prosecutor is prohibited from running for or accepting appointment to any state office for a period of two years following vacation of office.

Applications for the position and the required financial statement can be obtained from The Florida Bar’s website.

One completed original application, with attachments and financial statement, must be received by Jason Unger at GrayRobinson, P.A., 301 S. Bronough St., Suite 600, Tallahassee FL 32301 by December 11. Additionally, one electronic redacted copy of the application that complies with Chapter 119 and Florida’s public records law must also be received by December 11 at the following email address: 

Interviews will take place on December 15 at the offices of GrayRobinson, P.A., 301 S. Bronough St., Suite 600, Tallahassee.
The members currently serving on the Supreme Court Judicial Nominating Commission are: Chair Cynthia G. Angelos, Port St. Lucie; Vice Chair Jason L. Unger, Tallahassee; Alexander M. Clem, Orlando; Daniel E. Nordby, Tallahassee; Israel U. Reyes, Coral Gables; Jeanne T. Tate, Tampa; Nilda R. Pedrosa, Coral Gables; Robert A Butterworth, Jr., Ft. Lauderdale; and Rutledge R. Liles, Jacksonville.