Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA599903
`ESTTA Tracking number:
`04/22/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`Notice of Opposition
`
`Notice is hereby given that the following party opposes registration of the indicated application.
`Opposer Information
`
`Name
`Entity
`Address
`
`Dean Burnetti
`Individual
`2012 S. Florida Avenue
`Lakeland, FL 33803
`UNITED STATES
`
`Citizenship
`
`United States
`
`Attorney informa-
`tion
`
`Amber N. Davis, Esquire
`Beusse Wolter Sanks Mora & Maire, P.A.
`390 North Orange Avenue Suite 2500
`Orlando, FL 32801
`UNITED STATES
`adavis@iplawfl.com, kwimberly@iplawfl.com, bmahan@iplawfl.com
`Phone:(407) 926-7716
`Applicant Information
`
`Application No
`Opposition Filing
`Date
`Applicant
`
`85890526
`04/22/2014
`
`Publication date
`Opposition Peri-
`od Ends
`
`03/25/2014
`04/24/2014
`
`Burnetti, P.A.
`211 South Florida Ave.
`Lakeland, FL 33801
`UNITED STATES
`Goods/Services Affected by Opposition
`
`Class 045. First Use: 1994/06/30 First Use In Commerce: 1994/06/30
`All goods and services in the class are opposed, namely: Legal services
`
`Grounds for Opposition
`
`Priority and likelihood of confusion
`The mark is primarily merely a surname
`Torres v. Cantine Torresella S.r.l.Fraud
`Other
`
`Trademark Act section 2(d)
`Trademark Act section 2(e)(4)
`808 F.2d 46, 1 USPQ2d 1483 (Fed. Cir. 1986)
`Applicant is not and was not the owner of the
`mark at the time of filing its application (TBMP
`309.03(c)(7)
`
`Mark Cited by Opposer as Basis for Opposition
`
`U.S. Application/ Registra-
`tion No.
`Registration Date
`
`NONE
`
`NONE
`
`Application Date
`
`NONE
`
`

`
`Word Mark
`Goods/Services
`
`BURNETTI and DEAN BURNETTI
`Legal Services (IC 045)
`
`Attachments
`
`20140422150512.pdf(3433953 bytes )
`
`Certificate of Service
`
`The undersigned hereby certifies that a copy of this paper has been served upon all parties, at their address
`record by First Class Mail on this date.
`
`Signature
`Name
`Date
`
`/Amber N. Davis/
`Amber N. Davis, Esquire
`04/22/2014
`
`

`
`I HEREBY CERTIFY THAT THIS CORRESPONDENCE IS BEING TRANSMITTED
`
`ELECTRONICALLY
`
`TO
`
`THE
`
`COMMISSIONER
`
`FOR
`
`TRADEMARKS
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Application Serial No. 85890526
`Date of Publication: March 25, 2014
`
`
`
`\&\2\2&/\./9/Mx/\)&/
`
`DEAN BURNETTI,
`
`Opposer,
`
`V.
`
`BURNETTI, P.A.,
`
`Applicant.
` )
`
`To:
`
`Box TTAB FEE
`
`Honorable Commissioner for Trademarks
`
`P.O. Box 1451
`
`Arlington, Virginia 22313-1415
`
`NOTICE OF OPPOSITION
`
`Opposer, DEAN BURNETTI (“Opposer”) an individual residing in Florida, hereby files his
`
`Notice of Opposition to the registration of the BURNETTI, P.A. trademark that is the subject of
`
`application Serial No. 85/890,526, published in the Official Gazette on March 25, 2014, and
`
`requests that registration to Applicant be refilsed for the reasons set forth below.
`
`To the best of Opposer’s knowledge, the name and address of Applicant is as follows:
`
`

`
`Bumetti, P.A.
`211 South Florida Ave.
`
`Lakeland, Florida 33801
`
`Opposer believes that it will be damaged by and opposes the grant of application Serial No.:
`
`85/890,526, Filing Date: March 29, 2013 for the Mark BURNETTI, P.A. for “legal services” in
`
`Class 045.
`
`As grounds and in support of its opposition, Opposer asserts as follows:
`
`1.
`
`Applicant, BURNETTI, P.A. (“Applicant”), seeks to register BURNETTI, P.A. as a
`
`trademark for “legal services” in Class 045 (“Applicant’s Mark” or “the BURNETTI, P.A. Mark”).
`
`2.
`
`The application herein opposed was filed on March 29, 2013 on the basis of Section
`
`1(a). Applicant claims no date earlier than June 30, 1994 for the purpose of claiming priority.
`
`3.
`
`Opposer, well prior to Applicant’s use and/or filing of the subject application, has
`
`adopted and continuously used the terms BURNETTI and DEAN BURNETTI as trademarks for
`
`legal services in interstate commerce (“Opposer’s Marks” or “the BURNETTI Marks”).
`
`4.
`
`In fact, on October 17, 1986, Opposer was admitted to the practice of law in the
`
`State of Florida and has been using his last name, BURNETTI and his full name DEAN
`
`BURNETTI, as trademarks and in association with the provision of legal services since that date.
`
`Opposer’s date of first use in commerce was 12/31/1987, which is six and a half (6 1/2) years before
`
`Applicant’s June 30, 1994 first use date.
`
`5.
`
`Opposer, DEAN BURNETTI, and Applicant’s owner, DOUGLAS BURNETTI, are
`
`brothers and are both attorneys located in Florida. DEAN BURNETTI is the older brother and
`
`hence, has been practicing law for a longer period of time.
`
`

`
`6.
`
`Prior to Opposer joining BURNETTI, P.A. in 1996 as a shareholder and prior to
`
`App1icant’s June 30, 1994 first use date, Opposer used the BURNETTI Marks in commerce
`
`substantially exclusively and continuously in association with the provision of legal services.
`
`7.
`
`In 1996, the two brothers went into business together wherein DEAN BURNETTI
`
`and DOUGLAS BURNETTI each owned 50% of the shares of BURNETTI, P.A.
`
`8.
`
`From 1996 until August 27, 2012 any and all advertising or use of the BURNETTI,
`
`P.A. Mark was done at the behest of and at the expense of both DEAN BURNETTI (Opposer) and
`
`DOUGLAS BURNETTI (Applicant’s owner).
`
`9.
`
`DOUGLAS BURNETTI and DEAN BURNETTI disagreed as to how the law firm,
`
`BURNETTI, P.A., should be managed and because of this, on August 27, 2012, DOUGLAS
`
`BURNETTI invoked the provisions of a Share Transfer Agreement between the parties and
`
`terminated DEAN BURNETTI’s employment. A true and correct copy of the Share Transfer
`
`Agreement is attached hereto as Exhibit “A.”
`
`10.
`
`DEAN BURNETTI is no longer a shareholder of Bumetti, P.A.., but the parties have
`
`yet to resolve the amount owed to DEAN BURNETTI for his 50% share in Bumetti, P.A.
`
`l 1.
`
`The parties are involved in two lawsuits in Florida State Court wherein the first,
`
`identified as Dean Burnetti v. Douglas Burnetti, and Burnetti, P.A., a Florida corporation,
`
`Case No. 53-2012CA-7825, in the Circuit Court of the Tenth Judicial Circuit in and for Polk
`
`County, Florida (“Burnetti I”) is related to the amount owed to DEAN BURNETTI for his 50%
`
`ownership of BURNETTI, P.A. A true and correct copy of the Bumetti I Complaint is attached
`
`hereto as Exhibit “B.”
`
`12.
`
`The second lawsuit, identified as Bumetti, P.A. v. Dean Bumetti, et. al., Polk
`
`County Circuit Court, Case No. 20l3CA-2314 in the Circuit Court of the Tenth Judicial
`
`

`
`Circuit in and for Polk County, Florida (“Burnetti II”) is related to alleged misappropriation of
`
`trade secrets, trademark infringement, unfair competition, tortious interference and dilution
`
`claims asserted by Burnetti, P.A. against Dean Burnetti, his new law firm and a number of his
`
`colleagues. Dean Burnetti has asserted his prior rights to the BURNETTI Marks as an
`
`affirrnative defense in Burnetti 11 along with a number of other affirmative defenses. True and
`
`correct copies of the Burnetti Il Complaint and the Burnetti 11 Answer, Affirmative Defenses and
`
`Counterclaim are attached hereto as Exhibits “C” and “D” respectively.
`
`13.
`
`Opposer, as the prior user of the BURNETTI Marks has standing to file this
`
`Opposition Proceeding as he will be injured by registration of the BURNETTI, P.A. Mark and he
`
`has a real interest in the registration.
`
`14.
`
`The grounds for this Opposition wherein each ground is plead either together or in
`
`the alternative, include the following:
`
`a.
`
`Section 2(d) of the Lanham Act, 15 U.S.C. §l052(d): That Applicant’s mark
`
`(BURNETTI, P.A.) resembles a mark or trade name previously used in the United States by
`
`Opposer (BURNETTI and DEAN BURNETTI). Opposer has continued to use the BURNETTI
`
`Marks in commerce since December 31, 1987. Applicant’s use of the BURNETTI, P.A. Mark,
`
`when used on or in connection with the goods or services of the Applicant, is likely, to cause
`
`confilsion, or to cause mistake, or to deceive consumers;
`
`b.
`
`That because Applicant was aware of Opposer’s prior rights and current
`
`rights in the BURNETTI Marks, Applicant is not (and was not, at the time of filing its application
`
`for registration) the rightfill owner of the Marks;
`
`c.
`
`That because Applicant was aware of Opposer’s prior rights and current
`
`rights in the BURNETTI Marks, Applicant committed fraud on the USPTO when it signed an oath
`
`

`
`stating that “to the best of his/her knowledge and belief no other person, firm, corporation, or
`
`association has the right to use the mark in commerce, either in the identical form thereof or in
`
`such near resemblance thereto as to be likely, when used in connection with the goods/services of
`
`such other person, to cause confusion, or to cause mistake, or to deceive; and that all statements
`
`made of his/her own knowledge are true; and all statements made on information and belief are
`
`believed to be true” knowing that DEAN BURNETTI had prior rights to the BURNETTI Marks;
`
`and/or
`
`d.
`
`Section 2(e) of the Act, 15 U.S.C. §1052(e): In the alternative to the above
`
`grounds, Opposer pleads that the BURNETTI, P.A. Mark is primarily merely a surname under
`
`Section 2(e) of the Lanham Act without any proof of secondary meaning submitted by the
`
`Applicant and should therefore be refused registration by the USPTO.
`
`15.
`
`Opposer has been using the BURNETTI Marks since December 31, 1987, which is
`
`well before Applicant’s June 30, 1994 first use date.
`
`16.
`
`Applicant’s Mark is confiisingly similar to Opposer’s Marks in that it is nearly
`
`identical in sight, sound and meaning. For ease of reference, the Marks are as follows:
`
`BURNETTI
`
`VS.
`
`BURNETTI, P.A.
`
`DEAN BURNETTI
`
`VS.
`
`BURNETTI, P.A.
`
`

`
`17.
`
`Applicant’s Mark is confusingly similar, if not identical, to Opposer’s Marks in that
`
`the predominant part of Applicant’s Mark is BURNETTI, and the addition of the “PA.” is simply to
`
`identify the type of professional association as opposed to signify the source behind the services.
`
`18.
`
`Applicant’s services are identical to that of Opposer’s in that both parties provide
`
`legal services under Class 045. A reasonable consumer would believe that Applicant is associated
`
`with or approved or endorsed by Opposer.
`
`19.
`
`If Applicant is permitted to register the BURNETTI, P.A. Mark for legal services,
`
`confiasion of the relevant trade and public is likely to result, which will damage the Opposer’s
`
`business and reputation.
`
`Such belief of damages by the Opposer is reasonable under the
`
`circumstances.
`
`20.
`
`Any objection to, complaint, or fault found with Applicant’s services under the
`
`BURNETTI, P.A. Mark would necessarily reflect on and seriously injure the reputation that
`
`Opposer has established for his services and business over the past twenty-seven (27) years.
`
`21.
`
`If Applicant is granted a registration for the BURNETTI, P.A. Mark, it would obtain
`
`thereby at least a prima facie exclusive right to use the BURNETTI, P.A. Mark, which would
`
`damage the Opposer’s business, reputation and ability to practice law under his own personal name
`
`and under the name for which he has gained secondary meaning.
`
`22.
`
`Therefore, under Section 2(d), Applicant’s use of the BURNETTI, P.A. Mark is
`
`likely to cause confusion with Opposer’s use of the BURNETTI Mark, and because Opposer has
`
`prior use of the BURNETTI Mark, Applicant’s Mark should not be registered.
`
`23.
`
`The documents presently on file with the USPTO identify BURNETTI, P.A. as the
`
`owner of the BURNETTI, P.A. Mark and that BURNETTI, P.A. has been using the trademark in
`
`commerce since June 30, 1994.
`
`

`
`24.
`
`At the time Applicant filled out the trademark application for the BURNETTI, P.A.
`
`Mark, it knew or should have known that it did not have exclusive rights to the trademark as the
`
`trademark (or a confusingly similar mark) was used by Opposer well before the Applicant’s first use
`
`date. Moreover, Applicant knew or should have known that Opposer had superior rights to the
`
`BURNETTI Mark and therefore Applicant improperly filed its application in violation of the oath it
`
`swore to upon signing and committed fraud on the USPTO.
`
`25.
`
`The instant Application is invalid as a result of these false statements made by
`
`BURNETTI, P.A. before the USPTO.
`
`In the Declaration and Oath upon filing a trademark
`
`application, the Declaration specifically states that “to the best of his/her knowledge and belief no
`
`other person, firm, corporation, or association has the right to use the mark in commerce, either
`
`in the identical form thereof or in such near resemblance thereto as to be likely, when used in
`
`connection with the goods/services of such other person, to cause confusion, or to cause mistake, or
`
`to deceive; and that all statements made of his/her own knowledge are true; and all statements made
`
`on information and belief are believed to be true.” When Applicant filed the application it knew or
`
`should have known that it was not the true owner of the BURNETTI, P.A. Mark based on the fact
`
`that Opposer had prior rights to a confilsingly similar mark (BURNETTI) and therefore the
`
`Application is Void ab initio.
`
`26.
`
`Applicant also filed the application with the intent to deceive the USPTO into
`
`believing that Applicant did in fact have exclusive rights to the BURNETTI, P.A. Mark knowing
`
`that Applicant did not have exclusive rights.
`
`27.
`
`Opposer is likely to be damaged by the existence of a registration for BURNETTI,
`
`P.A. because Opposer risks losing customers or clients who may want to only do business with the
`
`owner of the BURNETTI, P.A. Mark and/or who may think that Opposer is infringing upon the
`
`

`
`BURNETTI, P.A. Mark. Moreover, the existence of a registration for the BURNETTI, P.A. Mark
`
`casts a cloud upon Opposer’s own right to the BURNETTI Mark, which he used before Applicant
`
`used the BURNETTI, P.A. Mark.
`
`28.
`
`In the alternative to the above allegations, Applicant’s Mark is primarily merely a
`
`surname under 15 U.S.C. §l052(e) and Applicant has not provided sufficient (or any) proof of
`
`secondary meaning and is therefore not entitled to a Federal Registration for the BURNETTI, P.A.
`
`Mark unless and until such secondary meaning is proven.
`
`29.
`
`Furthermore, even if Applicant can provide proof of secondary meaning, Opposer
`
`should be given the benefit of such secondary meaning because Opposer paid for half of all
`
`advertising expenses associated with BURNETTI, P.A. from 1996-2012, and Opposer’s name,
`
`image and likeness was used to promote the legal services provided by BURNETTI, P.A.
`
`30.
`
`Based on the foregoing, the instant Application should not proceed to registration.
`
`WHEREFORE, Opposer prays that the Opposition be sustained and that registration of the
`
`Mark of Application Serial No. 85/890,526 for BURNETTI, P.A. be denied in all respects.
`
`Dated this 22nd day of April 2014.
`
`Respectfillly submitted,
`
`
`
`
`By.
`Amber N. Davis, Esq.
`Florida Bar No.: 026628
`
`Kevin W. Wimberly, Esq.
`Florida Bar No.: 57977
`
`Beusse Wolter Sanks
`
`Mora & Maire, P.A.
`390 N. Orange Ave., Suite 2500
`Orlando, Florida 32801
`Telephone: (407) 926-7700
`Facsimile:
`(407)926-7720
`
`

`
`adavis@iplawfl.com
`kwimberl
`i
`lawfl.com
`
`CERTIFICATE OF SERVICE
`
`I certify that a copy of the foregoing document was mailed to Applicant’s authorized
`representative on April 22, 2014, by first class mail, postage prepaid as well as email, at the
`following address:
`
`Lori T. Milvain
`
`Latham, Shuker, Eden & Beaudine, LLP
`111 N. Magnolia Ave., Suite 1400
`Orlando, Florida 32801-2367
`1milVain@lseblaw.com
`
`

`
`EXHIBIT “A”
`
`

`
`
`
` I
`
`Date - January 2, 1997
`
`Time - 10:00 am.
`
`Place - Lakeland, Florida
`
`A meeting was held of the Board of Directors of Bumetti, P.A. on the above date at the above time
`and place. The following persons were present at the meeting:
`
`Douglas K. Bumetti - DirectorlPresident
`Dean Bumetti - New Director/Vice President
`
`Waiver of Notice - The call and waiver of notice of this meeting signed by all of the directors
`1.
`was presented and is found preceding these minutes.
`
`Chairman and Secretary — The Board of Directors elected Douglas K. Bumetti to be chairman
`2.
`and secretary for this meeting.
`
`Oficers - The election of officers of the corporation was then declared to be in order. and the
`3.
`following persons were duly elected by the Board of Directors to be respective officers:
`
`Douglas K Burnetti — President, Secretary. and Treasurer
`Dean Burnetti - was President, Vice Secretary, and Vice Treasurer
`
`Shares - Effective January 1, 1997, 100 shares of common stock are issued by Bumetti, P.A..
`4.
`and transferred to Dean Bumetti in exchange for $10.00 and other valuable consideration. These 100 shares
`are in addition to the 100 shares currently held by Doug Bumetti so that each owns 50% of the shares.
`in the
`event that Doug Bumetti andlor Dean Bumetti ever decide for any reason to no longer practice law together.
`the shares issued to Dean Bumetti will be returned to Bumetti, P.A. and then the assets and liabilities of
`Bumetti. PA will be equitably distributed between Bumetti. PA and Dean Burnettl as of the date of his and/or
`Doug Burnetti's written notification to Bumetti. P.A. and all shareholders that they no longer wish to practice
`law together. This provision is automatic and does not require the further execution of written documents.
`
`There being no further business to come before the meeting, the meeting was adjourned upon motion
`duly made and carried.
`
`y
`
`
`
`.___
`.
`.
`__.__.
`-
`I, Director. Offi
`ean Bu
`Shareholder, and individu
`
`-"/
`.'_'
`Douglas Kbmmetti.
`Shareholder, and Individually
`
`"
`
`
`
`

`
`EXHIBIT “B”
`
`

`
`him”
`
`C. .§/."/
`/
`IN THE CIRCUIT COURT OF THE TENTH JUDICIAL cti=tcLi‘Il'c,;=f~f,j.».._ 5/,
`IN AND FOR POLK COUNTY, FLORIDA
`4.-;,;_._««.. 4,,
`1?;
`I_5_-"r_
`
`-
`
`DEAN BURNETTI,
`
`vs.
`
`-
`
`’
`
`Plaintiff,
`
`DOUGLAS K._._: . BURNETTI, and
`
`BURNETTI, P.A., a Florida Corporation.
`
`Defendants.
`
`i‘
`
`CASE NO.:
`SECTION:
`_
`,_
`
`SECf2((pX};CA'OO-7—ZI:5—/"0000"LK
`
`.
`
`VERIFIED EMERGENCY COMPLAINT FOR DISSOLUTION,
`FOR EMERGENCY TRANSFER OF CORPORATE POWERS. AND FOR APPOINTMENT OF
`A CUSTODIAN OR RECEIVER
`
`Dean Burnetti sues Douglas K.Ias K. Burnetti and Burnetti, P.A., and states as follows:
`
`COMMON ALLEGATIONS
`
`The following allegations are made common to and part of each count to this Complaint.
`
`1.
`
`The Nature of This Action. This complaint asserts causes of action by Dean
`
`Burnetti against Douglas K.las K. Burnetti and Burnetti, P.A., for judicial dissolution, other relief,
`
`appointment of a custodian and/or receiver for Burnetti, P.A., and Douglas K.|as K. Burnetti for
`
`temporary and permanent relief.
`
`2.
`
`The Parties.
`
`A. Dean Burnetti is 50% shareholder in Burnetti, P.A.
`
`B. Douglas K.las K. Burnetti is a 50% shareholder in Burnetti, P.A.
`
`
`C. Burnetti P.A. is a Florida Professional corporation (a law firm) whose
`principal place of business is in Lakeland, Polk County, Florida and is
`incorporated in the State of Florida.
`
`3.
`
`Dean Burnetti and Douglas K.las K. Burnetti each own 50% of Burnetti, P.A.
`
`is a corporation located in Lakeland, Polk County, Florida and
`Burnetti, P.A.
`4.
`incorporated under Florida Law.
`
`

`
`On January 2, 1997 Douglas K.las K. Burnetti and Dean Burnetti held a meeting
`5.
`of the Board of Directors of Burnetti, P.A. at which time a Share Transfer Agreement was
`entered. See attached Exhibit
`
`The Share Transfer Agreement provided for 50/50 ownership of Burnetti, P.A.
`6.
`between the Plaintiff and Defendant, Douglas K.las K. Burnetti.
`
`January 15, 2003 Douglas K.las K. Burnetti and Dean Burnetti entered into a
`7.
`Stock Redemption Agreement. See attached Exhibit
`
`8.
`
`9.
`
`Paragraph 8 of the Stock Redemption Agreement covers “Termination”.
`
`Paragraph 8 states:
`
`a.
`
`Events of termination. This agreement shall terminate on any one of
`
`the following events.
`
`1.
`
`2.
`
`3.
`
`4.
`
`the written agreement of all the parties to the agreement;
`
`the dissolution, bankruptcy, or insolvency of the Firm;
`
`at such time as only one shareholder remains, the shares of the
`others having been transferred or redeemed; or
`
`the failure of the Firm to pay the premiums upon the policies
`owned by it or the assignment. pledge. loan upon, or change of
`beneficiary of
`such policy or
`policies. Provided
`that
`the
`Shareholders may waive such action or failure to act, in writing to
`that effect.
`
`10.
`
`The Stock Redemption Agreement supersedes the Share Transfer Agreement.
`
`The Stock Redemption Agreement identified both Douglas K.las Burnetti and
`11.
`Dean Burnetti as 50/50 owners of Burnetti, P.A.
`
`As of the date of this filing Dean Burnetti and Douglas K.las K. Burnetti are listed
`12.
`as corporate officers for Burnetti, P.A. with the State of Florida Division of Corporations.
`
`On August 27, 2012, Douglas K.las K. Burnetti, without any prior notice, had a
`13.
`letter (Exhibit “C" attached) delivered to the home of Dean Burnetti at approximately 7:30 a.m.
`
`This letter alleged that Douglas K.las K. Burnetti was invoking language that may
`14.
`be interpreted as a founder’s clause that had been entered during the year after coming
`together to do business as equal shareholders.
`
`

`
`Additionally, there were representations that there was an off duty police officer
`15.
`that guarded the building against the return of Dean Burnetti.
`
`Douglas K.las K. Burnetti has made representations to the Lakeland Police
`16.
`Department that Dean Burnetti was a physical threat to the safety and welfare of people within
`the law firm and building at Burnetti, P.A.
`located at 211 South Florida Avenue, Lakeland,
`Florida.
`
`On or about August 29, 2012, Lisa McClain, an employee of Douglas K.las K.
`17.
`Burnetti, contacted the Lakeland Ledger reporting that Dean Burnetti and Douglas K.las K.
`Burnetti had parted ways.
`
`Douglas K.las K. Burnetti had Dean Burnetti removed from the Burnetti, P.A.
`18.
`webpage and his profile deleted from all electronic media under his control.
`
`Douglas K.las K. Burnetti intercepted Dean Burnetti’s e-mail address at Burnetti,
`19.
`P.A., depriving him access to his account.
`
`Douglas K.las K. Burnetti hired the Lakeland Police Department to stand guard at
`20.
`the office to bar Dean Burnetti's return.
`
`21.
`
`Douglas K.las K. Burnetti has filed for two new corporations in the past month.
`
`Those being;
`
`a.
`
`-
`
`Burnetti Law Firm, P.A.
`
`b.
`
`Burnetti Law, P.A.
`
`Douglas K.las K. Burnetti intends to transfer assets of Burnetti, P.A. to either of
`22.
`his new corporations in an effort to “disinvest" Dean Burnetti of his rightful share and ownership
`interest.
`
`The building located at 211 S. Florida Avenue, Lakeland, Polk County, Florida
`23.
`where Burnetti, P.A. is located is equally owned by Dean Burnetti, Douglas K. Burnetti, Patricia
`Burnetti, and Denise Burnetti.
`
`Douglas K. Burnetti has no lawful right or authority to bar Dean Burnetti from the
`24.
`premises of 211 S. Florida Ave., Lakeland. Florida.
`
`Douglas K. Burnetti has retained as his own. sole and exclusive use of the
`25.
`facilities, property and cash of Burnetti, P.A. unjustly depriving Dean Burnetti of his ‘/2 interest In
`the same.
`
`26.
`Exhibit “D”.
`
`On September 10, 2012 the parties entered into an Agreement. See attached
`
`

`
`The terms of the agreement were Dean Burnetti would no longer be an employee
`27.
`of Burnetti, P.A.
`
`the agreement does not relinquish Dean Burnetti‘s standing as a
`However,
`28.
`Corporate Officer or 50% shareholder.
`
`29.
`
`Pursuant to Section 607.1430 Florida Statutes. Douglas K. Burnetti has
`
`engaged in certain acts:
`
`(1) that give rise to Dean Burnetti commencing a judicial dissolution
`
`action pursuant to 607.1430 Florida and are (2) directed to Burnetti, P.A.
`
`30.
`
`Jurisdiction and Venue. This complaint asserts a statutory cause of action for
`
`judicial dissolution and for damages in excess of $15,000.00. Therefore, jurisdiction properly
`
`lies in the Circuit Court. Concerning venue, the cause of action arose in Polk County, Florida.
`
`Therefore, venue properly lies in the Florida Tenth Judicial Court in Bartow, Florida.
`
`31.
`
`Conditions Precedent. All conditions precedent to the commencement of this
`
`action have been satisfied, discharged, or waived.
`
`32. Attorneys. Dean Burnetti has retained the services of Burnetti, Thomas & Berke.
`
`P.A., to represent him in this action and is obligated to pay them a reasonable fee for services
`
`rendered. Paragraph 14 of the Stock Redemption Agreement provides for attorney’s fees and
`
`costs for the prevailing party.
`
`Count I
`
`Judicial Dissolution of Burnetti, P.A.
`
`By reference the Complainant incorporates paragraphs 1 through 32 for Count I.
`
`33. The Nature 01‘ this Action. This count asserts a cause of action by Dean Burnetti
`
`against Douglas K. Burnetti and Burnetti, P.A., for dissolution of Burnetti, P.A., pursuant to
`
`Chapter 607.1430 Florida Statutes.
`
`34. The Partnership Makeup of Burnetti, P.A. At all times relevant, the partnership
`
`of Burnetti. P.A. has been comprised of two (2) shareholders and two (2) directors. One of the
`
`shareholders is Douglas K. Burnetti, who owns fifty percent (50%) of Burnetti, P.A. and is
`
`director of Burnetti, P.A. The other shareholder is Dean Burnetti who holds fifty percent (50%)
`
`of Burnetti P.A., and is also a director.
`
`35. The Statutory Grounds for Dissolution. Pursuant to Section 607.1430(3) Florida
`
`Statutes, Burnetti P.A. is subject to judicial dissolution because Douglas K. Burnetti is causing
`
`material and irreparable harm to the corporation shareholders.
`
`-4.
`
`

`
`36. The directors are deadlocked in the management of the corporate affairs,
`
`the
`
`shareholders are unable to break the deadlock, and irreparable injury to the corporation is
`
`threatened or being suffered.
`
`37. The corporate assets are being misapplied or wasted, causing material injury to the
`
`corporation.
`
`38.
`
`Douglas K. Burnetti or those in control of the corporation have acted. are acting,
`
`or are reasonably expected to act in a manner that is illegal or fraudulent.
`
`39.
`
`Hgggested Relief. Based upon the foregoing,
`
`it is requested that the Court
`
`enter a judgment in favor of Dean Burnetti and against Douglas K. Burnetti and Burnetti, P.A.
`
`for:
`
`(a)
`
`Dissolution of Burnetti, P.A.;
`
`;\ b) Appointment of an interim custodian and/or receiver;
`0
`
`An accounting of the corporation;
`
`(
`
`)
`
`,\
`
`d)
`
`)(9
`
`An award of attorney's fees and costs; and
`
`Such other relief as the Court deems appropriate.
`
`Count II
`
`Appointment of a Custodian andzor Receiver
`on a Permanent or Temporary basis
`
`By reference the Complainant incorporates paragraphs 1 through 39 for Count II.
`
`40.
`
`The Nature of this Action. This count asserts a cause of action pursuant to
`
`Section 607.1432 Florida Statutes, to appoint a custodian and/or receiver for/over Burnetti, P.A.
`
`41. Necessity of a Custodian andjor Receiver. A “fire-sa|e" and/or a forced sale of
`
`the corporate assets constituting the physical (non-client) attributes of Burnetti, P.A. will cause
`
`irreparable harm to Burnetti, P.A.
`
`42. The law firm has built a specific reputation in its community while at the ‘same time
`
`built a large client base.
`
`43. Burnetti, P.A is in immediate need for a custodian and/or receiver to manage and
`
`wind down the corporation so that
`
`the firms physical assets are maintained. The clients’
`
`interests are best served and the two attorney's reputations are maintained.
`
`

`
`44. As a 50% shareholder in Burnetti, P.A., Dean Burnetti has been deprived of his
`
`rightful claim to ‘/2 of the net profits of Burnetti, P.A. from all settled client matters and any and
`
`all other forms of income.
`
`45. With sole and unfettered access to all assets and monies of Burnetti, P.A., Douglas
`
`K.las Burnetti has and will diminish the value of the Corporation.
`
`46. All net profits after expenses and employee (non attorney) salary should be held in
`
`trust and distributed on an as needed basis by the Custodian/Receiver.
`
`47.
`
`No Adeguate Remedy. Dean Burnetti has no adequate remedy at law because
`
`the existence of the law firm cannot be replaced and/or valued.
`
`48. Custodian-Receiver. Dean Burnetti requests that the court redesignates a
`
`custodian as a receiver immediately on either a permanent or temporary basis.
`
`49.
`
`Reguested Relief. Based upon the foregoing it is requested that the court enter
`
`judgment in favor of Dean Burnetti and against Douglas K. Burnetti and Burnetti, P.A. for:
`
`(a)
`
`(b)
`
`Appointment of a custodian and/or receiver over Burnetti, P.A.
`
`Order all net profit of the Corporation be held in trust until a full
`accounting is accomplished and an independent third party controls the
`assets and management of the Corporation.
`
`(c)
`
`An award of attorney’s fees and costs; and
`
`(cl)
`
`Such other relief the court deems appropriate.
`
`Count I
`
`Temgorag; gng Permanent Iniunctive Relief
`
`By reference the Complainant incorporates paragraphs 1 through 49 for Count Ill.
`
`50. The Nature of this Action. This count asserts a cause of action by Dean Burnetti
`
`against Douglas K. Burnetti
`
`for
`
`temporary and permanent
`
`Injunctive relief related to the
`
`managing, operating and decision making of Burnetti. P.A.
`
`51.
`
`The irreparable lnigry. Douglas K. Burnetti has unilaterally taken over the
`
`complete control and operation of Burnetti, P.A. to the exclusion of Dean Burnetti, and is acting
`
`in a way that Dean Burnetti believes is detrimental to Burnetti, P.A., accordingly,
`
`irreparable
`
`injury will occur to Dean Burnetti which can never be cured by monetary damages.
`
`i.L._-_.
`
`_.
`
`

`
`52.
`
`Dean Burnetti’s Legal Right. Dean Burnetti has a legal and statutory right to the
`
`injunctive relief sought in this Court. Moreover, Dean Burnetti is without an adequate remedy of
`
`law relative to what he stands to lose. Given the nature and circumstances surrounding this
`
`matter, the issuance of an injunction would not be contrary to the interest to the public and the
`
`injunction will protect and preserve Dean Burnetti’s rights and those of the firm, Burnetti, PA.
`
`53. Reguested Rglief.
`
`It is requested that the court issue a temporary and permanent
`
`injunction in favor of Dean Burnetti and against Douglas K. Burnetti which:
`
`(3)
`
`from excluding Dean Burnetti
`Enjoins Douglas K. Burnetti
`corporations’ business activities and administrative decisions;
`
`from the
`
`(b)
`
`(C)
`
`(d)
`
`(6)
`
`(T)
`
`(9)
`
`(h)
`
`Enjoins Douglas K. Burnetti from excluding Dean Burnetti from decisions
`regarding Burnetti, P.A.'s clients’ files (including but not limited to any and
`all proposed settlement offers);
`
`from making any unilateral decisions
`Prohibits Douglas K. Burnetti
`regarding the corporation and the clients’ files without Dean Burnetti’s
`consent and approval;
`
`Prohibits Douglas K. Burnetti from dissipating any of the corporations’
`assets beyond the corporations‘ daily normal operating costs and
`salarys;.
`
`Prohibits Douglas K. Burnetti from permanently removing any files from
`Burnetti, P.A.;
`
`Prohibits Douglas K. Burnetti from making any disparaging comments
`regarding Dean Burnetti to any third parties;
`
`Orders a determination of rights and procedure for telephone numbers;
`
`Orders and accounting of subject corporations;
`
`Compensates Dean Burnetti in his ‘/2 interest in Burnetti, P.A. not only as
`a final payoff in dissolution but on a monthly ongoing basis from proceeds
`derived from the operation of the business in which he owns ‘/2 interest;
`
`Awards attorney's fees and costs;
`
`(k)
`
`Grants such other relief the court deems appropriate.
`
`I have reviewed the above-referenced Complaint and verify that,
`
`to the best of my
`
`Verification
`
`.7-
`
`

`
`knowledge, the factual allegations contained therein are true and accurate.
`
`Dated: November 15, 2012
`
`D
`
`urnetti
`
`P
`
`STATE OF FLORIDA
`
`COUNTY OF POLK
`
`day of
`l‘5'b
`The foregoing instrument was acknowledged before me this
`November, 2012, by Dean Burnetti, who is personally known to me or who has produced
`as identification.
`““"“:"‘_""_"
`
`;
`
`_
`
`'
`
` ‘ Expires 6/6/2014
`
`MARY ANN CUNNINGHAM
`NOTARY PUBLIC
`
`5- STATE or FLORIDA
`‘
`
`Notary Public
`
`6/[\5*-“A-i-'\
`
`n5 lwfl vvx.
`.
`_1::‘~«
`Printed, typed or stamped name
`
`Burnettl, Thomas & Berke, P
`
`Walter C. Thomas, Jr.
`Florida Bar No. 27127
`2012 South Florida Ave.
`Lakeland, Florida 33803
`(863) 248-4188
`(863) 248-3806 (fax)
`ATTORNEY FOR PLAINTIFF
`
`

`
` lQE
` NI
`
`Date - January 2, 1997
`
`Time - 10:00 a.m.
`
`Place — Lakeland, Florida
`
`A meeting was held of the Board of Directors of Bumetti. PA. on the above date at the above time
`and place. The following persons were present at the meeting:
`
`Douglas K. Bumetti - Director/President
`Dean Bumetti - New Director/Woe President
`
`Waiver of Notice - The call and waiver of notice of this meeting signed by all of the directors
`1.
`was presented and is found preceding these minutes.
`2.
`Chairman and Secretary - The Board of Directors elected Douglas K. Bumetti to be chaimtan
`and secretary for this meeting.
`
`Officers - The election of officers of the corporation was then declared to be in order, and the
`3.
`f