2020 Fall Newsletter



Defense v. Affirmative Defense: Form Over Substance

A review of Russell v. Wells Fargo Bank, N.A.

By: Richard Green


On June 22, 2020, the First District Court of Appeal issued its Per Curiam opinion in Russell v. Wells Fargo Bank, N.A., No 1D18-5128.[1]  The Russell case was a foreclosure action brought by Wells Fargo Bank, N.A. (“Wells Fargo”) against Lynda Russell (“Russell”).  The crux of the appeal dealt with an issue of pleading.  Specifically, Wells Fargo had alleged that all conditions precedent to the filing of the foreclosure action had been satisfied, a pleading requirement of Florida Rule of Civil Procedure 1.120(c).  Russell disputed that all conditions precedent had been met in one of her affirmative defenses, but did not deny this allegation in her answer.  As a result of this style in pleading, the trial court determined, which was affirmed by the District Court of Appeals, that Ms. Russell bore the burden of proof to establish that all conditions precedent had not been met, i.e., she had to prove a negative.  She failed in this burden.  Click here to read the full article.

[1] Westlaw Citation: 2020 WL 3408552


Local Government: An “Agency” No Longer Entitled to Deference?

A review of Evans Rowing Club, LLC, v. City of Jacksonville

By: Nicole Poot

In 2018, the Florida Constitution was amended to change the scope of the court’s authority when reviewing decisions by state agencies. Until then, a court was required to defer to the agency’s interpretation of state laws and rules.  But under the 2018 constitutional amendment that created Article V of Section 21 of the Florida Constitution, courts are no longer allowed to defer to agency interpretations.  Instead, they are required to make their own interpretation of state laws and rules when reviewing decisions of state agencies.  Although this amendment appears to be limited to the court’s review of state agency decisions, one Florida court has raised the question of whether this amendment also applies to the court’s review of local land use decisions of local governments.

In Evans Rowing Club, LLC, v. City of Jacksonville,  the First District Court of Appeal denied, per curiam, the plaintiff’s request for review of the City of Jacksonville’s decision to rescind the plaintiff’s certificate of use that had been previously issued by the City.[1]  Although the court did not issue a majority written opinion, Justice Wolf, Justice Thomas, and Justice Makar provided special concurring opinions, each providing an explanation as to why denial of review was appropriate in light of binding Florida precedent. Specifically, the Justices agreed that the court’s review of zoning decisions is extremely limited.[2] In fact, an appellate court may only take up review in these certiorari proceedings where there has been a departure from the essential requirements of law that amounts to a miscarriage of justice.[3] In Evans, it was not readily apparent from the record before the court that this standard had been met. As a result, the Justices agreed not take up the review.  Click here to read the full article.


[1] 2020 WL 3286285 (Fla. 1st DCA 2020).

[2] See, Miami Dade Cty. v. Omnipoint Holdings, 863 So. 2d 195, 199 (Fla. 2003).

[3] See e.g. Custer Med. Ctr. V. United Auto. Ins. Co., 62 So. 3d 1086, 1093 (Fla. 2010).


Firefighter Cancer Benefits: A Case for Prospective Application

By: Glenn Thomas and Janice Rustin

In 2019, the Florida Legislature acknowledged the scientific evidence showing a correlation between firefighting and certain cancers when it passed Senate Bill 426, an act mandating employer-funded cancer benefits for firefighters. The act created F.S. §112.1816, under which an eligible firefighter diagnosed with certain types of cancer is automatically entitled to cancer-related benefits at no cost to the firefighter, enhanced retirement disability and death benefits, and duty-related death benefits. But a court’s recent decision to award benefits to a firefighter diagnosed before the act’s effective date of July 1, 2019, has put local governments in the politically unpopular position of defending their administrative policies that limit claims to cancer diagnoses occurring after July 1, 2019, only. This article provides a review of Florida cases regarding retroactive application of new laws and concludes that there is sound legal basis for local governments to apply the act prospectively.  To view the full article, click here.

For more information about an employer’s obligation to provide certain benefits to fire fighters diagnosed with cancer, contact Glenn Thomas at gthomas@llw-law.com or Janice Rustin at jrustin@llw-law.com.


That Mangrove Forest Is Protected

By: Kevin Hennessy

So, you are quarantining at home, keeping socially distant. It’s not so bad, you live in Florida, in a nice house on the water. Even so, after months at home, you are restless. You need a new project to keep busy.  While sitting on your back patio you think, “these mangroves are really crowding out my view of the water.”  Before grabbing your chainsaw, consider that mangroves are protected in Florida and the improper trimming or removal of mangroves can result in legal fees, fines and penalties.

Within Pinellas County, there are three types of mangroves: red (Rhizophora mangle), black (Avicennia germinans) and white (Laguncularia racemosa).  Mangroves are tropical trees that grow in calm intertidal areas.  They provide numerous important benefits, such as controlling shoreline erosion, maintaining water quality, creating critical habitat and nursery areas, and supporting recreational and commercial fishing.  Since the 1940s, about 86% of the mangroves in Florida have been lost—50% in the Tampa Bay region alone. In an effort to preserve and protect the remaining mangroves in the county, the Board of County Commissioners sought and received a delegation from the state of Florida to enforce the state’s Mangrove Trimming and Preservation Act.  In order to enforce the state act, the County Commission adopted the county’s Mangrove Trimming and Preservation Regulations, which are codified in Chapter 58, Article XVI, of the County Code.  Click here to read the full article.


New Florida E-Verify Law Affects Public and Private Employers

By: James W. Linn

Florida Senate Bill 664, which was signed into law on July 1, 2020, requires public employers, as well as their contractors and subcontractors, to use the E-Verify system to confirm the work authorization status of all employees hired on or after January 1, 2021.  It also requires private employers to use E-Verify or Form I-9, and maintain copies of the documents used to complete the I-9 for three years.  E-Verify is a free, internet-based system through which an employer may quickly confirm that a newly hired employee is authorized to work in the United States. To use E-Verify, an employer inputs information from an employee’s I-9 form and obtains a result. According to the Florida Senate Judiciary Committee summary of the bill, 98.5% of the persons run through the E-Verify system in fiscal year 2019 were automatically confirmed as “work authorized.”

SB 664 defines “public employer” broadly as “an entity within state, regional, county, local, or municipal government, whether executive, judicial, or legislative, or any public school, community college, or state university…”  Although the definition does not expressly mention special districts, it appears to be intended to include all governmental entities.  The bill defines a “contractor” as a “person or entity that has entered into or is attempting to enter into a contract with a public employer to provide labor, supplies or services to such employer in exchange for salary, wages or other remuneration.”  A “subcontractor” is defined as a person or entity that provides labor, supplies or services to or for a contractor or another subcontractor.

SB 664 requires a party to a public contract to terminate the contract if it believes in good faith that another party is employing an unauthorized alien or is not registered with and using E-Verify. The bill specifies that the termination is not a breach of contract. However, a contractor whose contract is terminated for failing to use E-Verify or for knowingly employing an unauthorized alien is liable for any additional costs incurred by the public employer resulting from the termination, and cannot be awarded another public contract for at least one year after a contract is terminated for failure to use E-Verify.

Beginning January 1, 2021, every public employer, contractor, and subcontractor must register with and use the E-Verify system to verify the work authorization status of all newly hired employees. A public employer, contractor, or subcontractor may not enter into a contract unless each party to the contract registers with and uses the E-Verify system. If a contractor enters into a contract with a subcontractor, the subcontractor must provide the contractor with an affidavit stating that the subcontractor does not employ, contract with, or subcontract with unauthorized aliens, and the contractor must maintain a copy of the subcontractor’s affidavit for the duration of the contract.

SB 664 also requires private employers to use E-Verify or Form I-9 for employees hired on or after January 1, 2020, and maintain copies of the documents used to complete the I-9 for three years. To enforce the eligibility-verification requirements for private employers, the bill requires an employer to provide an employee’s eligibility-verification documents to any of several government agencies upon request. These agencies, in turn, must request the federal government to check the employee’s work-eligibility status.  If a private employer does not use E-Verify or the I-9 form to verify and document an employee’s eligibility for employment, the Department of Economic Opportunity may send the employer a notice, and the employer must terminate any unauthorized employees, begin using E-Verify or the bill’s I-9 procedure, and respond with an affidavit of compliance within 30 days. If the employer does not do so, its state business licenses may be suspended. If an employer fails to properly respond to a DEO notice three times in any 36 month period, its business licenses can be permanently revoked.

For more information, please contact Jim Linn at jlinn@llw-law.com.


LLW Successful in Reducing Client’s Impact Fees

An LLW client is developing a senior (55 and older) assisted living community in a Florida municipality. The project, which is under construction, will include independent, assisted living and memory care residential units.  As is typical for new developments, this project was required to pay certain impact fees.  In addition to other types of fees, the municipality requires new residential developments to pay impact fees for public parks and applies a single fee for each residential unit.  Our client justifiably maintained the “one size fits all” parks impact fee should not apply to their senior living development because future residents will have limited mobility and will be provided substantial outdoor and indoor recreational space and activities on the project campus.  Thus the future residents would rarely use and have little need for and impact upon the area’s public parks.

The municipality’s impact fee ordinance does provide affected parties the ability to request an alternative impact fee, based upon an independent analysis of the projected actual use of the public infrastructure potentially impacted. On behalf of our client, with the assistance of an impact fee consultant, we were able to demonstrate to the local government’s satisfaction that the use of and impact upon the area’s public parks by our client’s future residents justified a much lower impact fee than what would have been charged under a straight application of the impact fee ordinance. In fact, the difference amounted to a savings of $660,000 for our client.  We were advised by the municipality that this was the first time the alternative impact fee process had been utilized.  Clearly in this instance the much lower fee was justified.

In addition to the significant saving for our client on the parks impact fee, we were also successful in convincing the county that the transportation impact fee for this project should also be significantly reduced.

For more information, please contact Alfred Malefatto at amalefatto@llw-law.com.


Michelle Diffenderfer Appointed by West Palm Beach Mayor to Co-Chair Task Force for Racial and Ethnic Equality

Lewis, Longman & Walker President and Shareholder Michelle Diffenderfer was appointed by West Palm Beach Mayor Keith A. James on August 11, 2020 to Co-Chair the Mayor’s Task Force for Racial and Ethnic Equality (“Task Force”).  Michelle will Co-Chair the Task Force with Patrick Franklin, President and CEO of the Urban League of Palm Beach County.

The Task Force will take a historical look at the City of West Palm Beach and look to other cities for best practices for policies.  It will then make a presentation to the City Commission with their policy recommendations to help promote racial and ethnic equality throughout the City.  For more information about the Task Force, click here.

“I want to thank Michelle Diffenderfer and Patrick Franklin for agreeing to co-chair the Task Force for Racial and Ethnic Equality,” said West Palm Beach Mayor Keith A. James. “This Task Force has the ability to create lasting, transformative change in our community today and also for future generations to come. To realize the Task Force’s true potential for future impact, it was important to me to ensure that we had the right leadership at the helm of the Task Force, and with the help and service of Michelle and Patrick, I believe that we achieved that.”

Michelle assists landowners, businesses and governments with local, state and federal, environmental, natural resource and land development legal requirements. Michelle helps clients navigate these laws and regulations in the permitting of their land development and infrastructure projects.  For more information about Michelle, visit https://www.llw-law.com/attorneys/michelle-diffenderfer/.


Rachael Santana Appointed Chair of the Executive Council of the Environmental and Land Use Law Section of the Florida Bar

In July 2020, LLW attorney Rachael Santana began her term as Chair of the Executive Council of the Environmental and Land Use Law Section (ELULS) of The Florida Bar. ELULS is dedicated to serving the interests of over 2,000 members and affiliates through educational programs and publications that increase the knowledge and understanding of environmental and land use law.  Rachael has served as a member of the ELULS Executive Council since 2015.  Click here for more information about the organization.


Michelle Diffenderfer Begins Term as Chair-Elect of the American Bar Association Section of Environment, Energy, and Resources

Lewis, Longman & Walker President and Shareholder Michelle Diffenderfer recently became Chair-Elect of the American Bar Association Section of Environment, Energy, and Resources.  As Chair-Elect, Michelle will work with Chair Howard Kenison and the Executive Council on the Section’s goals and priorities for the upcoming ABA year.

An active member of the Section for over 25 years, Michelle’s leadership within ABA SEER began as a Committee Vice Chair in 2002. Since then, Michelle has held various leadership positions within the organization including Section Vice-Chair, Education Officer, Budget Officer, Secretary and Executive Council Member.

Michelle recently wrote an ABA SEER blog post expressing gratitude for the life-long friendships and experiences she has had with the Section. Click here to read.

With over 7,500 members, ABA SEER fosters the success of a diverse community of environmental, energy and resources lawyers, advisors and decision-makers and provides a premier forum for the exchange of ideas and information.  The Section provides opportunities to enhance professional skills, stay on top of current developments, and dialogue in environmental, energy, and natural resources law.  For more information about ABA SEER, click here.


Telsula Morgan Selected for ABA’s Leadership Development Program and as Programs Vice Chair of the Native American Resources Committee

Telsula Morgan was recently selected for the 2020-2021 Leadership Development Program of the American Bar Association Section of Environment, Energy and Resources (ABA SEER). Telsula is one of only 12 individuals selected nationally out of a very strong group of applicants. The Leadership Development Program supports ABA SEER members interested in expanding a current leadership role or growing their knowledge of the Section so that they can assume a leadership role in the future.

Telsula was also recently appointed Programs Vice Chair of ABA SEER’s Native American Resources Committee for a one-year term. The Programs Vice Chair spearheads the development of virtual learning programs and offers insights and guidance to conference planning committees on potential session topics at various SEER conferences.

Telsula is an active member of ABA SEER and was a participant in the 2018-2019 ABA Membership Diversity Enhancement Program. Her practice focuses on administrative, civil and appellate litigation, environmental and natural resources law. She has been listed in the South Florida Legal Guide as an “Up and Comer” in Environmental Law since 2017. She can be reached at tmorgan@llw-law.com.


Ten Lewis, Longman & Walker Attorneys Recognized in The Best Lawyers in America© 2021 by U.S. News Media Group and Best Lawyers®

Ten Lewis, Longman & Walker (LLW) attorneys have been recognized in The Best Lawyers in America© 2021 by U.S. News Media Group and Best Lawyers®; two have been named Lawyer of the Year:

Lawyer of the Year

  • R. Steven LewisLawyer of the Year in Natural Resources Law, Tallahassee
  • Terry E. LewisLawyer of the Year in Environmental Law, West Palm Beach

Best Lawyers


  • Brenna M. Durden – Land Use and Zoning Law; Real Estate Law; Real Estate Litigation
  • Wayne E. Flowers – Environmental Law; Environmental Litigation; Water Law


West Palm Beach

Best Lawyers® is the oldest and most respected peer-review publication in the legal profession.   The 2021 edition of The Best Lawyers in America© includes almost 60,000 lawyers covering all 50 states and the District of Columbia and is based on more than 10 million detailed evaluations of lawyers by other lawyers. Best Lawyers® lists reach an audience of more than 17 million readers. For more information on “Best Lawyers” rankings, visit http://www.bestlawyers.com/default.aspx.


Four Lewis, Longman & Walker Attorneys Recognized by Who’s Who Legal

Lewis, Longman & Walker attorneys Michelle Diffenderfer, Terry Lewis, Stephen Walker, and Alfred Malefatto have been included in the Who’s Who Legal Guide: Florida 2020 – Environment, an annual publication recognizing lawyers nominated by clients and peers.  Nominees were selected based upon a comprehensive, independent survey with both general counsel and environmental lawyers in private practice state-wide. A few published comments:

Michelle Diffenderfer at Lewis Longman & Walker is “terrific for government-related environmental work” on drainage impacts, endangered species, wetland issues and the full gamut of water-related problems.

 Alfred Malefatto is “a wonderful lawyer” renowned for his specialty in hazardous waste and land-use matters.

Who’s Who Legal recognizes private practice lawyers with a track record of providing advice to clients in transactional, litigation and regulatory matters.  For more information, please visit https://whoswholegal.com/analysis/florida-2020–environment.


LLW Attorneys Named Top Lawyers by Palm Beach Illustrated

Florida law firm Lewis, Longman & Walker is proud to announce that eight of its attorneys have been named Top Lawyers by Palm Beach Illustrated Magazine.

Published annually, the selection process involves a peer-reviewed nomination survey conducted by Palm Beach Illustrated and Professional Research Services.  For more information, visit https://www.palmbeachillustrated.com/.

The LLW attorneys listed as 2020 Top Lawyers in Palm Beach Illustrated Magazine are:


Brenna Durden Recognized by Florida Trend Magazine as a 2020 Legal Elite

Lewis, Longman & Walker, P.A. is pleased to announce that Brenna Durden has been named a 2020 Florida Legal Elite in the area of Environmental and Land Use Law.

The select group of Florida Legal Elite earned the prestigious title by votes cast by their peers from across the state. Florida Trend Magazine’s Legal Elite list represents less than two percent of the active Florida Bar members who practice in Florida.  For more information about Florida Legal Elite, visit https://www.floridatrend.com/legal-elite.

Ms. Durden’s practice focuses on governmental, land use, environmental and administrative law. Her clients include landowners, developers, local governments, banks, manufacturers, industrial and educational facilities in matters related to land development, community redevelopment, real estate transactions, hazardous materials, brownfields, contamination and remedial actions, solid waste and air quality regulation. Brenna has experience in transactional due diligence, administrative, environmental and land use litigation.


Firm News

Robert Diffenderfer has been appointed to serve another term on the Board of Directors of the Forum Club of the Palm Beaches, Florida’s largest non-partisan political and public affairs organization.

Michelle Diffenderfer, Terry Lewis, Stephen Walker and Alfred Malefatto have been recognized in the Who’s Who Legal Guide: Florida 2020 – Environment, an annual publication recognizing outstanding lawyers nominated by clients and peers.

Kathryn Rossmell has been selected to serve on the 2020-2021 Palm Beach North Chamber of Commerce Board of Directors.

Check out this video of the Lido Key Beach Restoration project. LLW attorneys worked hard to successfully defend permits for this project to restore this critically eroding beach and protect the community’s homes and businesses. https://youtu.be/G7QQNM4xj1I

LLW is a sponsor of the Chamber of Commerce of the Palm Beaches webinar “The Value of Civic and Community Volunteerism by Corporations,” which will be held virtually on December 9th.

LLW will hold a Virtual Lunch & Learn: Riparian Rights in Florida – 2020 Update on November 20th.  LLW attorneys Andrew Baumann, Kevin Hennessy and Richard Green will participate in the Lunch & Learn.  If you are interested in attending, please contact info@llw-law.com.

LLW is a sponsor of the “State of the County” virtual program hosted by the Chamber of Commerce of the Palm Beaches on November 5th. The program will feature Palm Beach County Mayor Dave Kerner.

LLW is a proud sponsor of the 46th Annual Public Employment Labor Relations Virtual Forum held October 22-23rd.  LLW attorney Glenn Thomas serves as Co-Chair of the conference.   He will be presenting on FRS and public pension matters at the event.

Terry Lewis and Chris Lyon are attending the Florida Association of Special Districts Quarterly Meeting held October 22-23rd in Key West. LLW is a proud sponsor.

LLW is a sponsor of the Firefighters’ Awards program hosted by the Chamber of Commerce of the Palm Beaches on October 22nd.

LLW is a proud sponsor of the American Bar Association Section of Environment, Energy and Resources (ABA SEER) 28th Annual Fall Conference which will be held virtually October 19th-27th.  LLW President Michelle Diffenderfer serves as Chair-Elect of ABA SEER.

Kathryn Rossmell is presenting at the “Ethical and Technology Issues for Environmental, Land Use, and Government Attorneys” webinar on October 15th hosted by the Florida Bar ELULS.

LLW sponsored the Homeless Coalition of Palm Beach County Virtual Mayor’s Ball on October 10th.

Kenneth Dodge attended the 10th Annual Great Commission Charity Golf Tournament on October 10th in Palm City. LLW was a proud sponsor of the tournament. Proceeds from the event will support the nonprofit organization Rivers 2 Nations.

On October 2nd, LLW held a Virtual Lunch & Learn: Enforcement of Environmental Laws.  Frederick Aschauer, Robert Williams and Nicole Poot were the presenters. Click here to view the recording.

Michelle Diffenderfer was interviewed by WPBF about the West Palm Beach task force on racial equality. Click to watch the news segment.

LLW sponsored the Urban League of Palm Beach County’s Equal Opportunity Day Awards Virtual Luncheon on September 30thAlfred Malefatto serves on the Board of Directors for the League, an organization dedicated to assisting minorities in the achievement of social and economic equality.

LLW was a proud sponsor of the First Coast Manufacturers Association Symposium & Regional Manufacturing Awards on September 25th.  LLW was nominated for the Regional Manufacturing Award, an award that recognizes outstanding companies and individuals for their contributions to manufacturing excellence.

LLW was a proud sponsor of the Chamber of Commerce of the Palm Beaches 2020 ATHENA Awards Virtual Event held on September 25th.  LLW was a 2014 recipient of the Organizational Leadership Award and LLW President Michelle Diffenderfer received the ATHENA Leadership Award in 2008.

William Capko participated in the National Association of Bond Lawyers Virtual Workshop held on September 23-25th.

Alfred Malefatto served as a moderator for the Progress Palm Beach County Virtual Economic Summit hosted by the Central Palm Beach County Chamber of Commerce on September 17th.  The session focused on the impact of development trends within Palm Beach County.  Click here to view a recording of the session.

Wayne Flowers participated in the Florida Section of the American Water Resources Association Virtual Annual Meeting on September 16th, which featured an update from Water Management District Executive Directors.

Frederick Aschauer presented “State and Regional Water Management and Planning” at the Florida Water Laws and Regulations Seminar August 20th.

Amy Taylor Petrick gave an Expert Witness Training webinar August 20th for the Southwest Florida Association of Environmental Professionals. The webinar covered expert witness tips and techniques in deposition and in court, as well as developing expert opinions and documents.

On August 4th, LLW held a Virtual Lunch & Learn: FASD Legislative Update.  M. Christopher Lyon, Terry Lewis and James Linn were presenters.  Click here to view a recording of the presentation.

LLW attorneys participated in the Florida Chamber’s 34th Annual Environmental Permitting Summer School July 21-24th. LLW is proud to be a long-time supporter of the event.  Click here to view the list of presentations.

For the second year in a row, Frederick Aschauer had the privilege of presenting on July 16th on environmental law to the Real Property, Probate and Trust Law (RPPTL) section of the Florida Bar, as part of the RPPTL’s Real Property Certification Seminar. Whereas last year’s presentation was presented as an “Environmental Law 101” course, this year Mr. Aschauer focused the presentation on the development and re-development of property in Florida under both state and federal law. Among the many issues discussed, permitting projects through Florida’s Environmental Resource Permit and the Army Corps’ 404 dredge and fill permit, as well as development of property through the brownfields program, were the main focus of the presentation. Of course, the presentation touched on all aspects of environmental law, thereby keeping the “101” aspect of the program as well.

Alfred Malefatto introduced the moderators for the Central Palm Beach County Chamber of Commerce’s Candidate Forum the week of July 13th. The forum was a virtual luncheon series that featured candidates for the Florida House of Representatives (District 88), the Florida Senate (District 29) and the Port of Palm Beach (Groups 2 & 3).

On June 24th LLW presented the webinar Moving Toward Reopening Government. Topics included public meetings, contracting and procurement issues, returning to the office (safety and employment issues) and CARES Act funding.