author: JACOBUS, J.

text:
    John G. RICHARDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4024.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.
    John G. Richards, Punta Gorda, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   JACOBUS, J.

John Richards timely appeals the judgment and sentence entered after he pleaded no contest to violating his probation. Richards contends that his sentencing on the violation of probation was based upon an incorrect scoresheet and, as a result, his sentence should be reversed so that he can be resentenced using a corrected scoresheet. We find merit to Richards’ argument and reverse and remand.

In 1991, Richards was convicted of attempted first-degree murder and robbery with a deadly weapon. He was sentenced to 27 years in prison to be followed by 3 years probation. After Richards’ release from prison, he began serving the probationary portion of his sentence. In March 2003, Richards was adjudicated guilty of violating his probation and was sentenced to time served. The court then reinstated Richards’ probation and imposed the same conditions that were previously imposed. Richards again violated his probation in February 2008. He signed an admission of violation of probation with no agreement regarding sentencing. At the sentencing hearing, the trial court used the original sentencing guidelines scoresheet which totaled 266 points. Because Richards had two violations of probation, there was a two-cell bump to determine the sentencing guidelines. Using the original scoresheet, a two-cell bump put Richards in a recommended range of 27 to 40 years and a permissible range of 22 years to life.

Richards contends that his score-sheet was incorrect for two reasons. First, he claims his primary offense of attempted first-degree murder was improperly enhanced to a life felony and scored at 165 points. Second, he claims the original scoresheet improperly showed 21 points allocated for legal status at the time of the offense. The State concedes error on both points and admits that Richards’ primary offense should have been scored as a first-degree felony at 136 points and the 21 legal status points should not have been scored because Richards was not on probation at the time the offense was committed.

Given these facts, Richards’ original scoresheet should have shown a total of 216 points instead of 266 points. Using the corrected scoresheet and imposing the two-cell bump, the recommended range for Richards’ sentence would have been 22 to 27 years with a permissible range between 17 and 40 years.

The State argues that the error in Richards’ scoresheet is harmless because the permissible range included a maximum of 40 years and that is the term to which the court sentenced him. When a sentencing error is challenged by direct appeal, a 3.800(b) claim, or a motion for postconviction relief filed pursuant to rule 3.850, a scoresheet error is “harmless if the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet.” Brooks v. State, 969 So.2d 238, 241 (Fla.2007) (emphasis in original). Nothing in the instant record supports a finding that the trial court would have imposed the same sentence using the corrected scoresheet. Therefore, Richards’ sentence is vacated and the matter is remanded to the trial court for resentencing using the corrected scoresheet.

SENTENCE VACATED and REMANDED with instructions.

MONACO and LAWSON, JJ., concur.

      . “[WJhere there are multiple violations of probation, the sentence may be successively bumped to one higher cell for each violation.” Williams v. State, 594 So.2d 273, 275 (Fla. 1992).


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Doris Rich CORYA, and as Trustee of the Trust Under Will of Paul Rich, dated December 15, 1944, and Doris Rich Corya and Paul J. Rich Sanders as Trustees of the Trust Under Will of Eleanor M. Rich, dated June 10, 1964, and Doris Rich Corya, as Trustee of other trusts presently unknown, Appellants, v. Roy SANDERS and Paul J. Rich, Jr., Appellees.
    Nos. 4D09-4096, 4D10-61.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 2011.
    Rehearing Denied Jan. 10, 2012.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for appellants.
    Gary A. Woodfield and Susan B. Yoffee of Haile, Shaw & Pfaffenberger, P.A., North Palm Beach, for appellee Roy Sanders.
   WARNER, J.

Appellant challenges a final summary judgment in which the trial court ordered appellant to file accountings for various trusts of which appellant was trustee. Because there are disputed issues of material fact as well as the fact that the appellee, as moving party, failed to negate appellant’s affirmative defenses, we reverse.

Appellee, Roy Sanders, is a beneficiary of several trusts that were established by family members, including his grandparents and his stepfather. His mother, Doris Corya, has been trustee of all of the trusts for many years.

The first trust involved in this suit was created by Eleanor Rich, the mother of Doris Corya. Rich executed a will that created trusts for each of her children (Doris and Arthur). The Eleanor Rich trust came into existence in 1974 when Eleanor died. Eleanor’s daughter, Doris Sanders (now Corya), was the trust’s beneficiary as well as its co-trustee. The trust provided income for life to Doris, with the ability to invade principal for her benefit. Upon her death, the remaining principal was to be divided into equal shares for the children of Doris, including her son Roy.

While not mentioned specifically in the complaint, Roy also claimed to be a beneficiary of the Sanders trust. No copy of that trust is in the record. In a deposition, Doris admitted that her mother set up a trust of municipal bonds for her and then to her children. The trust was created in New York in 1953. She claimed to have given a copy of the trust to Roy’s attorneys.

Doris Sanders married John Corya in 1969. The third and fourth trusts involved in this appeal were created by John Corya in 1993. John Corya, a Florida resident, created a revocable trust and an irrevocable trust. John was the beneficiary of the revocable trust during his lifetime. Upon his death all trust income was to be paid to Doris Corya. The trustee had authority to invade principal for the benefit of Doris or for the support, health, and education of the beneficiaries who were the children of Doris and step-children of John Corya. However, after a step-child had attained his or her education, the trustee was not to consider disbursements for their benefit unless there was ample principal for the support of Doris or the other children. After Doris’s death the remaining trust property was divided between Doris Sanders’s children (John Corya’s step-children), Roy Sanders, Rich Sanders, and Eleanor Sanders Drury. The irrevocable trust required the trustee to pay income to Doris for life and permitted the trustee, in the trustee’s sole discretion, to invade principal for the support, education, and maintenance of a beneficiary. Both the Corya Revocable Trust and Irrevocable Trust contained provisions which permitted Doris to deliver copies of the trust accounting to the beneficiaries. Specifically, it stated:

Accountings by Trustee. The trustee shall prepare an account for each taxable year of each trust, and whenever a Trustee ceases to serve, an account shall be prepared from the time of the last prior account through the end of the period of service. The Trustee shall keep each account available for inspection by and may deliver copies to the beneficiaries eligible within the period covered thereby to receive benefits from the trust which is the subject of said account, (emphasis supplied)

Roy filed a second amended complaint seeking to compel an annual accounting of the four trusts. Doris answered, denying most material allegations and alleging various affirmative defenses, including statute of limitations, and an allegation of waiver and estoppel alleging that the trusts have been in existence thirty years, and by his conduct Roy should be estopped from demanding any accounting prior to 2008. After some discovery, Roy moved for summary judgment. The trial court granted the motion finding that Doris had the duty to provide Roy with periodic written ac-countings on all the trusts, which she failed to do. The court ordered her to provide accountings for all trusts and granted Roy’s motion for attorney’s fees, which she was not permitted to use trust funds to pay. She appeals. During the pendency of the appeal, and because this court denied a motion for stay, Doris filed various accountings, although Roy objected that they were incomplete. Therefore, we do not deem the issue to be moot. Moreover, our resolution may affect the award of attorney’s fees.

Our decision in this case is controlled by the standard of review of a summary judgment:

The standard of review of an order granting summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party. Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990, 997 (Fla. 4th DCA 2004). Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996).

Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006). In addition, a trial court’s decision compelling an accounting is reviewed de novo. Patten v. Winderman, 965 So.2d 1222, 1224 (Fla. 4th DCA 2007).

Doris first argues that the court erred in failing to apply New York law to the Eleanor Rich Trust and the Sanders Trust. The Eleanor Rich Trust has a specific provision requiring that the trust be governed and construed under the laws of New York. While the Sanders trust is not in the record, it was established in New York, and Doris argues it should be governed by New York law. Therefore, she contends that the court erred in applying Florida law to require annual accountings to Roy.

Roy asserts that Doris waived the right to rely on New York law, because she did not raise it in the trial court and provided no New York law contrary to Florida law. In her answer and affirmative defenses, she relied on Florida law. While she did not file any response or affidavits in opposition to the motion for summary judgment, and no transcript of the hearing has been provided, in her motion for rehearing of the order granting summary judgment she also relied on Florida law. We agree that she has waived reliance on New York law by failing to argue it to the trial court. See Marine Envtl. Partners, Inc. v. Johnson, 868 So.2d 423, 426 (Fla. 4th DCA 2003); see also Mesa Air Group, Inc. v. Delta Air Lines, Inc., 573 F.3d 1124, 1130 n. 7 (11th Cir.2009). Moreover, the fact that the Sanders trust is not in the record does not prevent summary judgment for an accounting, because Doris did not dispute the fact that the trust was in existence, and Roy was a beneficiary. That was sufficient to require accountings, and Doris should have filed something in opposition to the motion in order to raise any defenses arising from the trust instrument itself.

As to the two Corya trusts, each had a provision which left to the discretion of the trustee the distribution of an accounting to “beneficiaries eligible within the period covered thereby to receive benefits from the trust which is the subject of said account.” Roy did not conclusively show that he was a beneficiary eligible to receive distributions from the trust. Although the requirement of an annual accounting in section 736.0813(l)(d), Florida Statutes, now overrides a trust provision to the contrary, see section 736.0105(2)(s), Florida Statutes, that provision of the statute was enacted in 2006. Thus, for those periods prior to its enactment, Roy would still be required to show his eligibility as a beneficiary. See also § 736.0813(5), Fla. Stat.

Doris raised several affirmative defenses to the claims for accounting, including estoppel and waiver, as well as statute of limitations defenses. While she did not use the word “laches” in her defenses, the affirmative defenses pled allegations sufficient to constitute laches. Roy did not negate any of the allegations of the affirmative defenses. “‘Before a plaintiff is entitled to a summary judgment of foreclosure, the plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment.’ ” Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009) (quoting Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 788 (Fla. 4th DCA 1995)). We conclude that the court erred in granting summary judgment where Roy did not negate the affirmative defenses raised.

Finally, because we have reversed the order granting summary judgment, we also reverse the award of attorney’s fees for further consideration.

POLEN and CONNER, JJ., concur.

      . Doris's first husband was Sanders. Her second husband was Corya.


author: ROTHENBERG, J.

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Appellant, v. Carlos Tomas GONZALEZ and Margarita Gonzalez, Appellees.
    No. 3D11-334.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 2011.

      Russo Appellate Firm, and Elizabeth K. Russo, Miami; Foreman Friedman, P.A., and Esperanza D. Briscoe, for appellant.
    Duboff Law Firm, and Kenneth R. Du-boff, for appellees.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

State Farm Florida Insurance Company (“State Farm”) appeals from a Final Judgment Pursuant to Appraisal Award, entered in favor of its insureds, Carlos and Margarita Gonzalez (“the Insureds”), and from the denial of rehearing. We reverse the order under review, but remand to allow the Insureds to file a complaint seeking relief consistent with this opinion.

The Insureds’ home was damaged by a hurricane in 2005. State Farm acknowledged that there was a covered loss, but after the parties failed to reach an agreement as to the amount of loss, the policy’s appraisal provision was invoked. In April 2008, the Insured’s appraiser and the umpire executed the appraisal award, finding that the Insureds’ amount of loss was $29,763 for ordinance and law coverage and $84,090.36 for dwelling coverage. The appraisal award, however, provides: “The amounts above are subject to previous payments, deductible(s), depreciation, if applicable, the terms and conditions of the policy and the laws of the State of Florida.” (emphasis added). Thereafter, in May 2008, State Farm paid the dwelling amount, but withheld the ordinance and law portion of the appraisal award based on the policy’s provision providing that building ordinance and law coverage is not payable “until the dwelling is actually repaired.”

The Insureds filed a “Petition to Confirm -Appraisal Award” (“Petition to Confirm”), alleging that State Farm failed to pay the ordinance and law portion of the appraisal award within sixty days as required by the policy’s “Loss Payment” provision, and that all conditions precedent have been performed, met, or waived. See Fla. R. Civ. P. 1.120(c) (“Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred.”). The Insureds requested that the trial court confirm the appraisal award and enter a final judgment awarding them the ordinance and law amount, plus interest, attorney’s fees, and costs.

State Farm did not file a response to the Petition to Confirm. Instead, State Farm set the Petition to Confirm for hearing and filed a certified copy of the homeowner’s insurance policy.

At the hearing, the Insureds’ counsel argued that pursuant to the policy’s Loss Payment provision, State Farm was required to pay the appraisal award within sixty days, and therefore, the trial court should grant the Petition to Confirm, and enter final judgment in favor of the Insureds. Thereafter, the trial court asked the Insureds’ counsel what statute he was “traveling under.” In response, counsel acknowledged that the Florida Arbitration Code (“Arbitration Code”), Chapter 682, Florida Statutes, does not “specifically deal with the appraisal process,” however, because appraisal awards are “akin” to arbitration awards, the Arbitration Code should be looked at for guidance. Thereafter, the Insureds’ counsel and trial court discussed several provisions of the Arbitration Code. Under the Arbitration Code, a party may apply to confirm an arbitration award, and the court “shall confirm” the award if a party to the arbitration has not applied, within applicable time limits, to vacate, modify, or correct the arbitration award. Thus, the Insureds argued that because State Farm did not apply to vacate, modify, or correct the appraisal award within ninety days, the trial court was compelled to grant their Petition to Confirm and enter final judgment in their favor. See § 682.15, Fla. Stat. (2008) (“Upon the granting of an order confirming, modifying or correcting an [arbitration] award, judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree.”).

In response, State Farm argued that when it received the Petition to Confirm, it was not “entirely sure what this action was all about, because this is a petition ... to compel to confirm the appraisal award, and there’s nothing in the rules that allows for that action.” Further, State Farm argued that the appraisal award was subject to the terms and conditions of the policy, including the Building Ordinance or Law Coverage Limitations, and therefore, as the Insureds had not incurred the these expenses, State Farm was not liable for that portion of the appraisal award.

At the end of the hearing, the trial court ruled that it was granting the Petition to Confirm, but failed to articulate the reason. Thereafter, the trial court entered the judgment under appeal, and subsequently denied State Farm’s motion for rehearing. This appeal followed.

State Farm contends that the trial court erred by entering the Final Judgment Pursuant to Appraisal Award. We agree.

Based on our review of the Petition to Confirm and the transcript of the hearing, it is clear that the Insureds were arguing that State Farm breached the insurance policy by not paying the ordinance and law portion of the appraisal award within sixty days. However, rather than filing a complaint seeking such relief, the Insureds filed the Petition to Confirm. Florida Rule of Civil Procedure 1.110(a) provides in relevant part: “Pleadings. There shall be a complaint or, when so designated hy a statute or rule, a petition and an answer to it....” There is no rule or statute allowing for the filing of a petition to confirm an appraisal award. However, rather than seeking dismissal of the Petition to Confirm, State Farm set the Petition to Confirm for hearing.

At the hearing, there is no doubt that this procedural error was raised by State Farm and addressed by the parties and the trial court. In fact, the Insureds acknowledged that there is no statute authorizing a petition to confirm an appraisal award, but nonetheless, urged the trial court, pursuant to the Arbitration Code, to confirm the appraisal award and enter final judgment in their favor. Although the trial court did not articulate its reason for granting the Petition to Confirm and entering the final judgment in favor of the Insureds, based on the Insureds’ arguments and the trial court’s statements, it appears that the trial court erroneously rejected State Farm’s argument that a Petition to Confirm is not authorized and that the Arbitration Code is not applicable to appraisal awards. See Allstate Ins. Co. v. Suarez, 838 So.2d 762, 765-66 (Fla.2002) (holding that appraisal provision in homeowner’s policy, which is materially similar to appraisal clause in the instant ease, required an “informal appraisal proceeding, not a formal arbitration hearing pursuant to section 682.06, Florida Statutes” of the Arbitration Code, and therefore, umpire properly refused to “proceed under the formal procedures of the Arbitration Code”); Citizens Prop. Ins. Corp. v. Cuban-Hebrew Congregation of Miami, Inc., 5 So.3d 709, 712 (Fla. 3d DCA 2009) (“The Florida Supreme Court has held that the Florida Arbitration Code is not applicable to appraisal cases.”) (citing Allstate Ins., 833 So.2d at 763-66).

Accordingly, we reverse the order under review, but remand with instructions to allow the Insureds to file a complaint alleging a viable cause of action against State Farm, which will relate back to the filing of the Petition to Confirm. Thereafter, State Farm, as permitted by rule 1.100(a), may file an answer to the complaint and assert any affirmative defenses contesting coverage. Prior to entering the final judgment, the trial court is required to adjudicate State Farm’s coverage defense as to the building or law coverage, if asserted by State Farm as an affirmative defense.

We urge the parties to review the Fourth District’s decision in Florida Insurance Guaranty Ass’n v. Olympus Ass’n, 34 So.3d 791 (Fla. 4th DCA 2010), which illustrates the proper procedure when an insurance company fails to pay an appraisal award, and explains that coverage issues are to be determined by the trial court. In Olympus, after a hurricane, the insured condominium association, Olympus Association, Inc., demanded appraisal for damage to three of its buildings pursuant to the insurance policy’s appraisal provision. The appraisal award totaled over $7 million, which was broken down by building and contained line-item amounts, including an amount for waterproofing and painting. The appraisal award, however, provided that it “is made without consideration of other terms, conditions, provisions or exclusions of the above policy, which might affect coverage or the amount of the insurer’s liability there under.”

After FIGA failed to pay the appraisal award, Olympus filed a breach of contract complaint against FIGA. FIGA filed its answer and affirmative defenses, asserting in part that, pursuant to the terms of the policy, painting and waterproofing materials were not covered. As part of the breach of contract action, Olympus then moved for confirmation of the appraisal award and entry of a final judgment in the amount of the appraisal award less applicable deductibles. Without addressing FIGA’s affirmative defenses, the trial court confirmed the appraisal award and entered final judgment in favor of Olympus.

On appeal, FIGA argued that the trial court erred by entering final judgment in favor of Olympus without determining FIGA’s liability as to the contested claim for waterproofing/painting. The Fourth District reversed and remanded “for the trial court to determine FIGA’s liability with regard to the contested claims, and then enter the appropriate amount based on the appraisal.” In doing so, the Fourth District explained:

[T]he trial court erred by entering final judgment in favor of Olympus without first determining FIGA’s liability as to the coverage claims contested in its affirmative defenses.... [I]t is not reasonable to order an insurer to pay for all elements set forth by an appraiser if the insurer raises an issue of coverage as to only one element and not the whole claim. It is the appraiser’s duty to determine the amount of coverage, while questions of coverage liability are left for the judiciary. Then, “[i]f a court decides that coverage exists, the dollar value agreed upon by the appraisal process will be binding upon both parties.”
[W]e conclude that the trial court erred by entering final judgment in favor of Olympus and awarding it the amount set forth in the appraisal (less the deductibles), without first deciding the issue of coverage liability. When FIGA filed its affirmative defenses in response to Olympus’s complaint, the trial court should have first decided FIGA’s liability.... FIGA could contest part of the liability without challenging coverage as a whole. The appraisal award itself indicated the amount could change as the award was made without consideration of the policy’s provision of coverage.

Olympus, 34 So.3d at 795-96 (citations omitted).

As we are reversing and remanding for further proceedings consistent with this opinion, we find it unnecessary to address the remaining issues raised by State Farm.

Reversed and remanded with instructions.

      . The appraisal provision provides:
      4. Appraisal. If you and we fail to agree on the amount of loss, either one can demand that the amount of the loss be set by appraisal. If either makes a written demand for appraisal, each shall select a competent, disinterested appraiser. Each shall notify the other of the appraiser’s identity within 20 days of receipt of the written demand. The two appraisers shall then select a competent, impartial umpire. If the two appraisers are unable to agree upon an umpire within 15 days, you or we can ask a judge of a court of record in the state where the residence premises is located to select an umpire. The appraisers shall then set the amount of the loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon shall be the amount of the loss. If the appraisers fail to agree within a reasonable time, they shall submit their differences to the umpire. Written agreement signed by any two of these three shall set the amount of the loss. Each appraiser shall be paid by the party selecting that appraiser. Other expenses of the appraisal and the compensation of the umpire shall be paid equally by you and us.

      . The “Building Ordinance or Law Coverage Limitations” provision provides in pertinent part:
      4. Building Ordinance or Law Coverage Limitations.
      a. We will not pay for any increased cost of construction under this coverage:
      (1) until the dwelling is actually repaired or replaced at the same or another premises in the same general vicinity; and
      (2) unless the repairs or replacement are made as soon as reasonably possible after the loss, not to exceed two years.

      . The applicable "Loss Payment” provision provides:
      8. Loss Payment. We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment. Loss will be payable:
      a. 20 days after we receive your proof of loss and reach an agreement with you; or
      b. 60 days after we receive your proof of loss and:
      (1) there is an entry of final judgment; or
      (2) there is a filing of an appraisal award with us.

      .An application to modify or correct an arbitration award must be "made within 90 days after delivery of a copy of the award to the applicant....” § 682.14(1), Fla. Stat. (2008). Similarly, an application to vacate must also "be made within 90 days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within 90 days after such grounds are known or should have been known.” § 682.13(2), Fla. Stat. (2008).

      . Olympus’ insurance policy was issued by Southern Family Insurance Company. After the hurricane, Southern Family was placed in receivership for liquidation purposes, and Florida Guaranty Insurance Association ("FIGA”) became responsible for covered claims. Olympus, 34 So.3d at 793.


author: PER CURIAM.

text:
    Robert HEATH, Appellant, v. BEAR ISLAND HOMEOWNERS ASSOCIATION, INC., a Florida non-profit corporation, and Frank Moscato, Appellees.
    No. 4D10-3779.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 2011.
    Rehearing Denied Jan. 10, 2012.
    John M. Jorgensen of Scott, Harris, Bryan, Barra & Jorgensen, P.A., Palm Beach Gardens, for appellant.
    John S. Penton, Jr. of Cole, Scott & Kissane, P.A., West Palm Beach, for appel-lees.
   PER CURIAM.

This is an appeal brought by Robert Heath, the plaintiff below, challenging the trial court’s entry of a summary judgment in favor of the defendants below, Bear Island Homeowners Association, Inc. (“the Association”) and Frank Moscato, a board member. We conclude that the trial court correctly entered a summary judgment in favor of the Association as to count one (injunctive relief) — albeit for the wrong reasons. Further, after carefully reviewing the arguments and the record, we also conclude that the trial court correctly entered a summary judgment in favor of Moscato as to count two (breach of fiduciary duty). Therefore, we affirm.

In count I of the complaint, Heath sought an injunction to compel the Association to enforce the terms of its Declaration of Covenants and Restrictions. Heath, a resident of Bear Island and as such a party to the Declaration, accused the Association of failing to enforce the terms of the Declaration as to certain homeowners. Heath provided the trial court with a list of other residences in Bear Island which he claimed had changes, modifications, or improvements that were made without first seeking the Association’s approval, in direct abrogation of the Declaration’s requirement that changes first be approved.

The Association, however, had no legal obligation to take legal action to enforce the Declaration. Article XII, entitled “Enforcement of Declaration,” states, in pertinent part:

The enforcement of this Declaration may be by proceeding at law for damages or in equity to compel compliance with its terms or to prevent violation or breach of any of the covenants or terms herein. The Developer, the Association, or any individual may, but shall not be required to, seek enforcement of the Declaration.

Quite simply, because this plain language explicitly makes enforcement of the Declaration a purely discretionary decision on the part of the Association, Heath had no clear legal right to an injunction to compel the Association to enforce the terms of the Declaration. See, e.g., Murtagh v. Hurley, 40 So.3d 62, 66 (Fla. 2d DCA 2010) (stating that in order to obtain an injunction, the “party seeking injunctive relief must show” among other things “the existence of a clear legal right”). While this was not the reasoning stated by the trial court for granting the summary judgment as to count one, we are compelled to affirm nonetheless. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).

We have also reviewed that portion of the summary judgment entered in favor of Moscato as to count two and find no error. Therefore, the summary judgment is affirmed.

Affirmed.

MAY, C.J., STEVENSON and CIKLIN, JJ., concur.


author: STEVENSON, J.

text:
    Francine GARFINKEL, Appellant, v. Leigh C. KATZMAN, Alan B. Garfinkel, Katzman Garfinkel Rosenbaum, LLP, a Florida limited liability partnership, and Daniel S. Rosenbaum, Appellees.
    No. 4D11-1354.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 2011.

      Keith J. Lambdin of Katzman Garfinkel & Berger, Maitland, for appellant.
    Laurel R. Wiley, John M. Siracusa and Daniel S. Rosenbaum of Rosenbaum Mol-lengarden Janssen & Siracusa, PLLC, West Palm Beach, for appellee Daniel S. Rosenbaum.
   STEVENSON, J.

Francine Garfinkel, a non-party witness, challenges an order of the trial court finding she waived her objection to the court’s exercise of jurisdiction over her person by filing a motion for protective order that sought to quash the deposition subpoena for lack of service and to limit any deposition permitted on the grounds of the spousal and litigation privileges. We reverse.

A court lacks jurisdiction over a non-party and the authority to require the non-party to appear for deposition where she has not been served with the deposition subpoena. See Anderson Invs. Co. v. Lynch, 540 So.2d 832, 833 (Fla. 4th DCA 1988); Ward v. Gibson, 340 So.2d 481, 482 (Fla. 3d DCA 1976). Garfinkel’s motion for protective order plainly raised the issue of lack of service and the joinder of substantive arguments directed to the scope of any deposition ultimately held did not result in a waiver of her claim of lack of service and thus lack of jurisdiction. See Fla. R. Civ. P. 1.140(b) (“No defense or objection is waived by being joined with other defenses or objections_”); Berne v. Beznos, 819 So.2d 235, 238 (Fla. 3d DCA 2002) (“[I]f a defending party timely raises an objection to personal jurisdiction or service of process, then that defendant may plead to the merits and actively defend the lawsuit without waiving the objection.”). The filing of the motion for protective order, seeking to quash or limit the deposition, was defensive and not a claim for affirmative relief that resulted in a waiver of the claim of lack of service and personal jurisdiction. See Babcock v. Whatmore, 707 So.2d 702, 704 (Fla.1998) (“[A] defendant waives a challenge to personal jurisdiction by seeking affirmative relief — such requests are logically inconsistent with an initial defense of lack of jurisdiction.”); Banco de Costa Rica v. Rodriguez, 573 So.2d 833, 834 (Fla.1991) (holding defendant’s filing of motion to quash deposition subpoena raising lack of service was a defensive action that did not result in waiver of claim of lack of personal jurisdiction).

Joannou v. Corsini, 543 So.2d 308 (Fla. 4th DCA 1989), the authority relied upon by appellee, is distinguishable. There, this court found a waiver where Joannou raised a claim of lack of personal jurisdiction after he had filed a motion for protective order asserting that, as a party, he had been entitled to notice of depositions and was not afforded the same. Id. at 311.

Accordingly, we reverse the order finding Garfinkel waived her claim of lack of personal jurisdiction and requiring her to appear for deposition. We reject Garfinkel’s claim that the April 2011 hearing precipitating the order on rehearing served as the evidentiary hearing on the matter of service of the deposition subpoena and that she is therefore entitled to immediate entry of an order quashing the subpoena. We remand the matter to the trial court for further proceedings consistent with this opinion.

Reversed and Remanded.

MAY, C.J., and CIKLIN, J., concur.


author: CIKLIN, J.

text:
    MYD MARINE DISTRIBUTOR, INC., a Florida corporation, MYD Marine Distributor, Inc., a California corporation, and MYD Mid-Atlantic, Inc., a Maryland corporation, Appellants, v. INTERNATIONAL PAINT LTD., International Paint LLC, Donovan Marine, Inc., and East Coast Marine Distributors, Inc., Appellees.
    No. 4D10-2833.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.

      Scott E. Perwin of Kenny Nachwalter et al., Miami, for appellants.
    Cristina Alonso and Charles M. Rosenberg of Carlton Fields, P.A., Miami, and Daniel G. Swanson of Gibson Dunn & Crutcher, LLP, Los Angeles, CA, for ap-pellees International Paint, Ltd. and International Paint, LLC.
    A. Rodger Traynor, Jr., Ronald B. Ravi-koff and Francisco A. Rodriguez of Aker-man Senterfitt, Miami, for appellee Donovan Marine, Inc.
    Charles A. Morehead, III of Moody, Jones, Ingino & Morehead, P.A., Plantation, for appellee East Coast Marine Distributors, Inc.
   CIKLIN, J.

MYD Marine Distributor, Inc. and two affiliated companies (collectively referred to as “MYD”) appeal the trial court’s final order dismissing their antitrust claims with prejudice for failure to state a cause of action. Because we conclude that the amended complaint sufficiently alleges antitrust claims, we reverse.

MYD, as a distributor of marine paint and related products, purchases the paint and other goods it distributes from manufacturers and resells them to yacht builders, boatyards, and other customers who use marine paint in their businesses. Until it was terminated in November 2008, MYD was a distributor of Awlgrip topside yacht paint. The appellees, International Paint Ltd. and International Paint LLC (collectively referred to as “International Paint”), manufacture Awlgrip paint.

In December 2008, MYD filed suit against International Paint and two competing Awlgrip distributors — Donovan Marine, Inc. (“Donovan”) and East Coast Marine Distributors, Inc. d/b/a Gold Coast Marine Distributor (“Gold Coast”). In its complaint, MYD asserted claims under the state antitrust laws of Florida, California, and Maryland respectively. After its initial complaint was dismissed for failure to state a cause of action, MYD filed an amended complaint. The defendants again moved to dismiss.

In its amended complaint, MYD alleged that it was the largest distributor of Awl-grip paint in North America and that it consistently sold “its products at significantly lower prices than the prices charged by its competitors.” MYD then claimed that several competing distributors of Awl-grip paint (including Donovan and Gold Coast) conspired with one another and with International Paint to “eliminate the competitive threat posed by MYD’s discounting and to raise prices to the levels charged by the conspiring distributors.”

MYD next described specific instances where the “unlawful conspiracy” had been “either acknowledged or carried out by members of the conspiracy in the presence of witnesses.” The paragraph of the amended complaint which is relevant to the defendant distributors in this case read in pertinent part:

Michael Sharrow of Donovan and Joel Mains of Gold Coast jointly met with Ken Hiekling, then Global Manager of the Awlgrip division of International Paint, at the Fort Lauderdale Boat Show.... Mr. Sharrow is a manager of Donovan and Mr. Mains is a principal and owner of Gold Coast. Donovan and Gold Coast are competitors of one another and of MYD. During the meeting, Mr. Mains and Mr. Sharrow vociferously complained that MYD was “ruin[ing] the Awlgrip market” by undercutting their prices on Awlgrip products.... During this meeting, Mr. Sharrow and Mr. Mains jointly asked Mr. Hiekling either (i) to coerce MYD into raising its Awl-grip prices or (ii) if MYD refused to raise its prices, to terminate MYD as an Awlgrip distributor. Mr. Hiekling agreed to do so, thereby forming a three-way agreement among International Paint, Gold Coast and Donovan. When the three-way meeting ended, Mr. Del Monico [ (MYD’s owner) ] approached Mr. Hiekling and introduced himself. Mr. Hiekling responded by saying: “So you’re the fellow that Donovan and Gold Coast say ruined the Awl-grip market.” ... Mr. Hiekling then asked Mr. Del Monico to raise MYD’s profit margins to at least 25%. Mr. Del Monico stated that Mr. Hiekling’s request was against U.S. law, to which Mr. Hiekling replied: ‘Well, I’m not an American, am I?”

MYD also alleged that representatives from International Paint had admitted on multiple occasions that it was “under intense pressure from MYD’s competitors either to get MYD to raise its prices on Awlgrip products or to terminate MYD as an Awlgrip distributor.” These factual allegations included the names of the people who made the comments, those who heard them, and in many instances the dates on which they occurred.

The amended complaint also described a series of actions allegedly taken by International Paint to coerce MYD into raising its prices including: 1) requesting on several occasions that MYD raise its prices to levels charged by other distributors; 2) threatening to delay shipments of orders to MYD; 3) spreading false rumors that MYD was in serious financial difficulty; and 4) shipping defective product to MYD and then falsely telling MYD’s customers who bought the defective product that it had informed MYD of the problem, but MYD resold the paint regardless. Ultimately, according to the amended complaint, when these coercive efforts failed, International Paint terminated MYD as an Awlgrip distributor. MYD also alleged statements made by International Paint representatives admitting that MYD’s discount pricing was the reason for its termination.

After hearing arguments on the motions, the trial court granted the motions to dismiss MYD’s amended complaint. When MYD subsequently advised the trial court that it did not intend to further amend its antitrust claims, the trial court entered a final judgment in favor of International Paint, Donovan, and Gold Coast. This appeal followed.

A dismissal for failure to state a cause of action is reviewed de novo. Wells v. Wells, 24 So.3d 579, 582 (Fla. 4th DCA 2009). “A motion to dismiss for failure to state a cause of action admits all well pleaded facts as true, as well as reasonable inferences that may arise from those facts.” Id. (emphasis added) (citation and quotation marks omitted).

MYD sued International Paint, Donovan, and Gold Coast for violations of the Florida Antitrust Act of 1980. See § 542.15, Fla. Stat. (2005). Pursuant to section 542.18, Florida Statutes, “[e]very contract, combination, or conspiracy in restraint of trade or commerce in this state is unlawful.” The Florida Legislature has indicated that its intent is for courts that are construing the Florida Antitrust Act to give “due consideration and great weight ... to the interpretations of the federal courts relating to comparable federal antitrust statutes.” See § 542.32, Fla. Stat. (2005). Therefore, we “look to federal cases to elucidate what is an agreement in restraint of trade and what proof constitutes a conspiracy.” Parts Depot Co. v. Fla. Auto Supply, Inc., 669 So.2d 321, 324 (Fla. 4th DCA1996).

In a distributor-termination case, there must be concerted action (“contract, combination, or conspiracy”) between the manufacturer and other distributors to establish an antitrust violation. See Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984) (discussing requirements for the comparable § 1 of the Sherman Act).

In Monsanto, the United States Supreme Court explained:

Independent action is not proscribed. A manufacturer of course generally has a right to deal, or refuse to deal, with whomever it likes, as long as it does so independently. United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 63 L.Ed. 992 (1919). Under Colgate, the manufacturer can announce its resale prices in advance and refuse to deal with those who fail to comply. And a distributor is free to acquiesce in the manufacturer’s demand in order to avoid termination.

Id. (citation omitted). Thus, “[a] manufacturer’s mere receipt of complaints from its wholesalers or agents who compete with the plaintiff, standing alone, does not constitute a conspiracy.” Parts Depot, 669 So.2d at 324. There must also be “some other evidence of a tacit understanding or agreement.” Id. at 325.

Although Monsanto and Parts Depot involved the legal standard for analyzing what constitutes a reasonable inference when considering a motion for a directed verdict, the same standard is applicable in evaluating the sufficiency of an antitrust claim where, as may often be the case in distributor-termination cases, the plaintiffs conclusion of concerted action is based on inferences from the alleged facts. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (“In identifying facts that are suggestive enough to render a § 1 conspiracy

plausible, we have the benefit of ... prior rulings....”). Accordingly, a pleading which merely asserts complaints to the manufacturer by competing dealers followed by termination of a discounter would be insufficient to create a “reasonable inference” of a conspiracy.

In this case, however, MYD has pled much more than just mere complaints followed by termination. MYD alleged an exact place where the conspiracy was formed and the actual representatives from each of the defendants who participated in the agreement. It pled that representatives from Donovan and Gold Coast arranged to meet jointly with a representative from International Paint at a Fort Lauderdale boat show. According to the amended complaint, the representatives “jointly asked” International Paint to force MYD to raise its prices and to terminate MYD as an Awlgrip distributor if MYD refused. MYD also alleged that International Paint agreed to do so, and that immediately after the meeting with the competing distributors, International Paint’s representative asked MYD’s principal to raise MYD’s profit margins to at least 25%. The allegation that International Paint requested that MYD raise its prices immediately after the joint meeting with the competing distributors places International Paint’s demand “in a context that raises a suggestion of a preceding agreement.” See Twombly, 550 U.S. at 557, 127 S.Ct. 1955.

Even if the above facts were insufficient, MYD also alleged an additional fact which when viewed in the light most favorable to it, further supports the allegation that an agreement was reached. MYD alleged that its owner responded to International Paint’s request that MYD raise its prices by telling International Paint’s representative that the request was against U.S. law. The representative’s alleged response was, “Well, I’m not an American, am I?” A reasonable inference from International Paint’s response is that International Paint admitted that its conduct was in violation of U.S. antitrust law. Independent action by International Paint, however, would not be illegal. Thus, the response could be reasonably interpreted as an admission that International Paint’s request that MYD raise its prices was made pursuant to the alleged agreement with Donovan and Gold Coast.

To survive a motion to dismiss, MYD could not merely plead that an agreement was reached. See Okeelanta Power Ltd. P’ship v. Fla. Power & Light Co., 766 So.2d 264, 267 (Fla. 4th DCA 2000) (“[T]he party must plead sufficient facts to establish each element and cannot use terms which are conclusory.” (emphasis added)). MYD also had to allege that the agreement was an unreasonable restraint on competition. See Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 885, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007) (“[T]he Court has repeated time and again that § 1 outlaw[s] only unreasonable restraints.” (citation and quotation marks omitted)); Parts Depot, 669 So.2d at 325. The factual allegations required to plead that an agreement unreasonably restrains competition depends on whether the agreement is categorized as vertical or horizontal.

A horizontal agreement exists where distributors conspire to induce a manufacturer to refuse to deal with a particular distributor. Parts Depot, 669 So.2d at 324. “Price-fixing agreements between two or more competitors, otherwise known as horizontal price-fixing agreements, fall into the category of arrangements that are per se unlawful.” Texaco Inc. v. Dagher, 547 U.S. 1, 5, 126 S.Ct. 1276, 164 L.Ed.2d 1 (2006); see also United States v. General Motors Corp., 384 U.S. 127, 145, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966) (“Elimination, by joint collaborative action, of discounters from access to the market is a per se violation of the [Sherman] Act.”).

Here, the factual allegations in MYD’s amended complaint suggest that Donovan and Gold Coast conspired to induce International Paint to refuse to deal with MYD. MYD further alleged that this concerted action by Donovan and Gold Coast was done to protect themselves from price competition by MYD. Thus, the alleged conduct was a per se violation of the Florida Antitrust Act. See Texaco Inc., 547 U.S. at 5, 126 S.Ct. 1276; General Motors, 384 U.S. at 145, 86 S.Ct. 1321. As such, MYD was not required to plead any additional facts to show that the alleged agreement between Donovan and Gold Coast would have anticompetitive effects.

MYD also claims that its allegation that International Paint agreed to the demands of Donovan and Gold Coast made it a participant in the horizontal conspiracy, and as such International Paint’s conduct was also per se unlawful. We disagree.

In Leegin, the United States Supreme Court explained:

A horizontal cartel among competing manufacturers or competing retailers that decreases output or reduces competition in order to increase price is, and ought to be, per se unlawful. To the extent a vertical agreement setting minimum resale prices is entered upon to facilitate either type of cartel, it, too, would need to be held unlawful under the rule of reason.

551 U.S. at 893, 127 S.Ct. 2705 (emphasis added) (internal citation omitted). MYD has alleged that International Paint agreed to set a minimum resale price (gross profit margins of at least 25% which is a 33% markup) in order to help the horizontal cartel to increase average retail prices of Awlgrip paint. Thus, according to Leegin, International Paint’s participation created a vertical agreement between International Paint and the cartel and should be analyzed under the rule of reason.

The rule of reason “requires the plaintiff to prove that a restrictive practice constitutes an unreasonable restraint on competition.” Parts Depot, 669 So.2d at 325. Under Florida law, “[t]hree elements must be alleged ... under the rule of reason test: 1) that there is a specifically defined market; 2) that the defendants possessed the ability to affect price or output; and 3) that plaintiffs exclusion from the market did affect or was intended to affect the price or supply of goods in that market.” Id. at 326.

MYD alleged the three required elements in its amended complaint. According to the amended complaint, the relevant product market was topside yacht paint, which was defined as “paint and other related coatings used to paint pleasure boats above the water line.” MYD further alleged that “[t]opside yacht paint is not reasonably interchangeable with other types of marine paint, such as paint used on commercial vessels (e.g., tugboats and barges) or bottom paint (also known as anti-fouling paint) used on pleasure boats.” The amended complaint also stated that the relevant geographic markets depended on the size of the customers. For large customers such as yacht manufacturers, the relevant geographic market was the entire United States. For smaller accounts, the relevant geographic market was regional with the relevant regional markets relevant to this case being South Florida, the mid-Atlantic, Southern California, Northern California, and the Pacific Northwest. Thus, MYD alleged “enough information in [its] complaint to [reasonably] suggest the contours of the relevant geographic and product markets.” See Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1336 (11th Cir.2010).

MYD also alleged that International Paint possessed the ability to affect price or output in this specifically defined market. According to the amended complaint, International Paint had “market power— the ability to raise prices above competitive levels without losing sufficient sales to make the price increase unprofitable — in each of the relevant markets.” MYD supported its contention with the following factual allegations: (1) Awlgrip paint has a market share above 80% in the topside yacht paint market; and (2) International Paint “earns supracompetitive margins on Awlgrip paint.”

To show that MYD’s exclusion from the relevant market did affect or was intended to affect the price or supply of goods in that market, MYD alleged that it was the largest distributor of Awlgrip paint in North America and that it consistently sold its products “at significantly lower prices than the prices charged by [its] competitors.” Thus, MYD’s termination as an Awlgrip distributor resulted in the removal of a significant discounter from the market. MYD also alleged that Awl-grip had a sufficiently dominant position that customers continued to buy Awlgrip at higher prices after MYD was terminated rather than substituting other brands of topside yacht paint.

Thus, MYD’s amended complaint contains sufficient factual allegations to properly plead that the vertical agreement between International Paint and the competing distributors was an unreasonable restraint on competition. Therefore, the trial court erred in granting International Paint’s motion to dismiss MYD’s antitrust claims for failure to state a cause of action.

The other two points on appeal raised by MYD have been carefully considered and found to be either without merit or not yet ripe for appellate review. Because MYD’s amended complaint contains sufficient factual allegations to properly plead antitrust claims, we reverse the trial court’s orders granting the motions to dismiss the amended complaint against International Paint, Donovan, and Gold Coast.

Reversed and remanded for further proceedings consistent with this opinion.

MAY, C.J., and STEVENSON, J„ concur.

      . In the appellate briefs, the parties treat these three companies as a single entity; thus, for simplicity, the appellants are collectively referred to in this opinion as the singular "MYD.”

      . In its amended complaint, MYD defines topside yacht paint as "paint and other related coatings used to paint pleasure boats above the water line.”

      . MYD also sued for violations of California and Maryland antitrust laws. Because those laws are, in relevant part, substantially similar to the Florida antitrust law and to the equivalent § 1 of the federal Sherman Act the analysis in terms of stating a cause of action in a Florida civil court, is the same under any of the three states’ laws. See 15 U.S.C. § 1 (“Every contract, combination ..., or conspiracy, in restraint of trade or commerce ... is declared to be illegal.’’); § 542.18, Fla. Stat. (2009) ("Every contract, combination, or conspiracy in restraint of trade or commerce in this state is unlawful.”); Cal. Bus. & Prof'I. Code §§ 16720, 16726 (West 2009); Md.Code Ann., Com. Law § 1 l-204(a) (West 2009) (“A person may not ... [b]y contract, combination, or conspiracy with one or more other persons, unreasonably restrain trade or commerce. ...”).

      . In Twombly, the United States Supreme Court addressed the question of what "a plaintiff must plead in order to state a claim under § 1 of the Sherman Act.” 550 U.S. at 554-55, 127 S.Ct. 1955. The Court concluded that to state such a claim, the “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555, 127 S.Ct. 1955 (citations and footnote omitted). The Court further explained that the complaint must contain “enough factual matter (taken as true) to suggest that an agreement was made” and “allegations plausibly suggesting (not merely consistent with) agreement.” Id. at 556-57, 127 S.Ct. 1955. The Court then looked to case law and commentary involving other stages of antitrust trials (such as summary judgments and directed verdicts) to determine if the alleged conduct in that case (parallel conduct by competing companies) was sufficient.
      While we are not bound by the United States Supreme Court's interpretation of the Federal Rules of Civil Procedure, we have been instructed by our legislature to give "due consideration and great weight ... to the interpretations of the federal courts” in interpreting Florida’s antitrust statutes. See § 542.32, Fla. Stat. Furthermore, we note that we have looked to federal cases in the past to guide us in analyzing the sufficiency of Florida antitrust complaints. See, e.g., Okee-lanta Power Ltd. P'ship v. Fla. Power & Light Co., 766 So.2d 264, 267 (Fla. 4th DCA 2000). As such, we believe that Florida courts should look to Twombly in determining whether an agreement in violation of the Florida Antitrust law can be reasonably inferred from the alleged facts.

      . In Parts Depot, we explained the distinction between vertical and horizontal restraints:
      "Vertical” restraints upon competition are those imposed by persons or firms on a different level of the distribution system than the level of the persons or firms receiving the impact of the restraints, e.g., resale price fixing may involve a manufacturer dictating the price at which a dealer sells a product.
      On the other hand, "horizontal” restraints are those imposed within the same distribution level, e.g., by some dealers refusing to sell to other dealers. Horizontal restraints also encompass the situation where dealers conspire to induce the manufacturer to refuse to deal with a particular dealer.
      669 So.2d at 324 (citation omitted).


text:
    In re Michael J. HAND.
    Nos. 2011-OB-1832, 2011-OB-2555.
    Supreme Court of Louisiana.
    Dec. 2, 2011.
   IN RE: Hand, Michael J.; -Other; Applying For Resignation.

ORDER

L Considering the request of respondent, Michael J. Hand, Louisiana Bar Roll number 16958, to withdraw his Petition for Transfer to Disability Inactive Status, and to instead permanently resign from the practice of law in lieu of discipline, and the concurrence thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the petition filed by respondent in ll-OB-1832 seeking a transfer to disability inactive status be and hereby is withdrawn.

IT IS FURTHER ORDERED that the request filed by respondent in ll-OB-2555 for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Michael J. Hand shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

FOR THE COURT:

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


text:
    Sandra G. SIMON, Wife of/and René J. Simon v. LOOMIS ARMORED US, INC., Joe Doe, Marshalls of MA, Inc., Stirling Mandeville, L.L.C., Stirling 21, L.L.C., ABC Insurance Company, and XYZ Insurance Company.
    No. 2011-C-1842.
    Supreme Court of Louisiana.
    Nov. 4, 2011.
   In re Simon, René J.; Simon, Sandra G. et al.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 2008-16055; to the Court of Appeal, First Circuit, No. 2010 CA 1909.

Not considered, not timely filed.


text:
    F. Patrick QUINN III v. Julie QUINN.
    No. 2011-CC-1158.
    Supreme Court of Louisiana.
    Nov. 4, 2011.
   In re Quinn III, F. Patrick; — Plaintiff; Applying for Reconsideration of this Court’s action dated September 15, 2011; Parish of Jefferson, 24th Judicial District Court Div. C, No. 637-411. To the Court of appeal, Fifth Circuit, No. ll-C-195.

Denied.


author: JAMES F. McKAY III, Judge.

text:
    Olivia BAILEY, on Behalf of the deceased, William BROWN, Grace Guidry, on Behalf of the deceased, Raymond J. Guidry, Maxine P. Harris, on Behalf of the deceased, Damion D. Harris, et al. v. EXXON MOBIL CORPORATION, ExxonMobil Oil Corporation, Chevron USA, Inc., ConocoPhillips Company, Marathon Oil Company, Shell Offshore, Inc., et al.
    No. 2011-CA-0177.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 2011.
    Frank M. Buck, Jr., Mikalia M. Knott, New Orleans, LA, Jeremiah A. Sprague, Timothy J. Falcon, Falcon Law Firm, Marrero, LA, for Plaintiffs/Appellants.
    Glen M. Pilié, Martin A. Stern, Valeria M. Sercovich, Raymond P. Ward, Adams and Reese LLP, New Orleans, LA, for Exxon Mobil Oil Corporation, Exxon Mobil Corporation, and Humble Incorporated, Defendants/Appellees.
    Mary S. Johnson, Jill T. Losch, Johnson Gray McNamara, LLC, Mandeville, LA, Thomas M. McNamara, Johnson Gray McNamara, LLC, Lafayette, LA, Chad J. Moliere, S. Suzanne Mahoney, Johnson Gray McNamara, LLC, Roy J. Rodney, Jr., Rodney & Etter, LLC, New Orleans, LA, for Shell Offshore Inc., Shell Oil Co., and SWEPI LP, Defendants/Appellees.
    Michael R. Phillips, Louis M. Grossman, Kean Miller Hawthorne D’Armond McCowan & Jarman, L.L.P., New Orleans, LA, for Chevron U.S.A. Inc., Defendant/Appellee.
    Richard S. Pabst, Julie Parelman Sil-bert, Stephen Hanemann, Kean Miller Hawthorne D’Armond McCowan & Jar-man, New Orleans, LA, for Marathon Oil Co., Defendant/Appellee.
    Deborah D. Kuchler, Janika D. Polk, Michele Hale Deshazo, Kuchler Polk Schell Weiner & Richeson, LLC, New Orleans, LA, for ConocoPhillips Co., Defendant/Appellee.
    René A. Curry, Jr., Christoffer C. Friend, Molly Steele, Shannon C. Burr, Curry & Friend, PLC, New Orleans, LA, for Occidental Chemical Corp. and Placid Oil Co., Defendants/Appellees.
    Ronald A. Johnson, Bettye A. Barrios, Gavin H. Guillot, Johnson Johnson Barrios & Yacoubian, New Orleans, LA, for BP Exploration & Production Inc., American Oil Company, and BP Corporation North America Inc., Defendants/Appellees.

      (Court composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART).
   JAMES F. McKAY III, Judge.

|7The plaintiffs, Olivia Bailey, on behalf of the deceased, William Brown, et al., appeal the trial court’s maintaining of an exception of no cause of action for punitive damages in a wrongful death claim filed by the defendants, Exxon Mobil Corporation, et al. We affirm.

FACTS AND PROCEDURAL HISTORY

On December 20, 2002, over 700 named plaintiffs filed suit in Warren Lester, et al. v. Exxon Mobil Corp., et al., No. 2002-19657, in Civil District Court for Orleans Parish. The plaintiffs alleged that either they or their decedents were exposed to naturally occurring radioactive material (NORM) at over 600 pipeyards throughout Louisiana, six other states, and overseas. The plaintiffs also alleged entitlement to punitive damages under former Louisiana Civil Code Article 2315.3. The trial court ordered the cases be tried in various flights. As one of these flights progressed to trial, certain defendants filed a motion in limine to exclude evidence of damages attributable to the deaths of persons alleged to haveJabeen exposed to NORM based on the fact that no wrongful death claim had been pleaded either in the original or in any of the numerous supplemental and amending petitions filed.

Thereafter, the plaintiffs filed two nearly identical petitions, both styled Olivia Bailey, et al. v. Exxon Mobil Corp., et al. One was filed in the 24th Judicial District Court, Jefferson Parish; the other was filed in Civil District Court, Orleans Parish and is the case currently before this Court. The plaintiffs then pursued their wrongful death claims in the Bailey actions and their survival claims in the Lester action. In the instant case, the defendants filed numerous exceptions, including peremptory exceptions of no cause of action for punitive damages for plaintiffs’ wrongful death claims based on this Court’s holding in Bulat v. Intracoastal Tubular Services, Inc., 2004-1376 (La.App. 4 Cir. 11/3/04), 888 So.2d 1017. The trial court sustained the defendants’ exceptions of no cause of action for punitive damages in a wrongful death case. In its written judgment, the trial court designated this judgment as final under Louisiana Code of Civil Procedure Article 1915(B). It is from this judgment that plaintiffs now appeal. DISCUSSION

In their sole assignment of error, the plaintiffs contend that the district court erred in granting defendants-appellants’ exceptions of no cause of action for punitive damages in a wrongful death claim. Therefore, the issue before this Court pis the purely legal question of whether the plaintiffs’ claims for punitive damages in a wrongful death action are precluded by Bulot.

In Bulot, the widow and children of a deceased employee brought survival and wrongful death actions against his employer. They alleged that the deceased’s cancer was the result of occupational exposure to radioactive waste while cleaning oilfield pipes. Id. The trial court granted the employer’s motion for summary judgment on the punitive damages claims. His widow and children then appealed. This Court held that there were genuine issues of material fact which precluded summary judgment on the punitive damages claim in the survival action. Id. at 1021. This Court also held that punitive damages could not be recovered by way of a wrongful death action. Id. at 1023.

Therefore, the plaintiffs in the instant case are precluded from recovering damages in a wrongful death action. Accordingly, we find no error in the trial court’s maintaining of the defendants’ exception of no cause of action.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment.

AFFIRMED

      . Former La. C.C. art. 2315.3, effective September 3, 1984 and repealed April 16, 1996, provided for punitive damages "if it [were] proved that plaintiff’s injuries were caused by the defendant's wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances.”

      . Although the defendants objected to the trial court’s designation of its ruling on the exception of no cause of action as a final judgment, we will address the issue of whether punitive damages can be awarded in a wrongful death action on the merits.

      .Further developments in both the court below as well as in the 24th Judicial District Court occurred after the trial court’s ruling on the exception of no cause of action. The developments pertain to issues of prescription and res judicata. These issues are not dealt with in the judgment on appeal currently before this Court and will not be discussed in this opinion.