Dispute Between Drs. Kirkpatrick and Derasari
NOVEMBER 10, 2017
Gary M. Schaaf, Esq. Office Managing Shareholder Board Certified Business Litigation Attorney Phone: (813) 527-3900 Fax: (813) 286-7683 November 10, 2017 VIA EMAIL TO agassman@gassmanpa.com
Tower Place 1511 N. Westshore Blvd., Suite 1000 Tampa, Florida 33607
Alan S. Gassman, Esquire Gassman, Crotty & Denicolo, P.A. 1245 Court Street, Suite 102 Clearwater, FL 33756 Re: Dispute Between Drs. Kirkpatrick and Derasari
Dear Alan: Further to our conversation of last week, regarding the lease between Dr. Derasari and Dr. Kirkpatrick as to 1910 E. Busch Boulevard, in Tampa (the “Lease”), and the documents referenced therein, including the agreement drafted by attorney, Richard Wilkes (the “Professional Agreement”), I have the following. While, when we first spoke, you indicated that you did not believe that Dr. Derasari had a signed copy of the Lease in his possession, in our second call, you indicated that he had an unsigned copy, and that he did not believe that the Lease had ever been signed. To that point, and as a condition precedent to further negotiations, we need to receive the following, by the close of business on Wednesday, November 15, 2017:
In addition to wrongfully threatening to evict Dr. Kirkpatrick from the leased property within the building located at 1910-1912 E. Busch Boulevard (“Building 1”), Dr. Derasari has also wrongfully threatened to restrict or otherwise take action inconsistent with Dr. Kirkpatrick’s use of certain space in the adjacent building, located at 1902-1904 E. Busch Boulevard, which is owned by Drs. Kirkpatrick and Derasari, through their limited liability company, Manjul and Anthony, LLC (“Building 2”), as follows:
As we discussed, Dr. Kirkpatrick takes Dr. Derasari’s foregoing threats to evict him from Building 1 or to interfere with his use of Building 2 extremely seriously, as either action could result in critical and irreparable harm to his patients, his business, and the business and mission of The International Research Foundation for RSD/CRPS (the “Foundation”), which is the tenant under the Lease. Accordingly, Dr. Kirkpatrick has instructed me to file suit for declaratory relief, for temporary and permanent injunctive relief, for damages resulting from Dr. Derasari’s anticipatory breach of contract, and for such other legal claims as may be necessary to preserve his rights or the rights of the Foundation, absent immediate unconditional assurances that Dr. Derasari intends to take no action which would interfere in any way with Dr. Kirkpatrick’s continued, unfettered, and uncompromised use of those portions of Building 1 or Building 2, currently under his use and control, other than in accordance with the Lease, the Professional Agreement, or any other documents to which Drs. Derasari and Kirkpatrick are parties. Further, please note that, contrary to Dr. Derasari’s contention that the Lease may not have been executed, Dr. Kirkpatrick forwarded copies of the signature pages of the Lease to Dr. Derasari, showing that the Lease was signed on April 13, 2008, as follows:
Copies of the signature pages attached to the above email are attached to the email communicating this letter, for your review. Please also note that the execution of the Lease, on April 13, 2008, followed just days after the below email of April 9, 2008, in which Dr. Kirkpatrick indicated that certain potential stumbling blocks to the execution of the Lease had been overcome, and that execution of the Lease would be forthcoming:
Also, further to our conversation, please provide me the copy of the Professional Agreement, which you indicated was in your client’s possession. The Professional Agreement was entered into on November 18, 2017, in accordance with the following email from Dr. Kirkpatrick to Dr. Derasari, and was thereafter incorporated by reference into the Lease:
While you indicated that Dr. Derasari will be moving, and is looking for a way to get “1 ½ buildings” off his balance sheet, Dr. Derasari’s self-imposed business considerations can in no way alter the terms of the agreements which he and Dr. Kirkpatrick have entered into. We are of the opinion that Dr. Derasari is threatening to evict Dr. Kirkpatrick from Building 1, and to improperly restrict his use of Building 2, as retribution for Dr. Kirkpatrick’s reasonable decision not to purchase Dr. Derasari’s interest in Building 1. To be clear, the goal of reaching an acceptable, mutually beneficial resolution to the challenges posed by our clients’ respective interests in Buildings 1 and 2, will not be advanced through threats, which will be more likely to lead to unnecessary and costly litigation. However, as you and I discussed the other day, while marketing one or both of the buildings to third-party purchasers may lead to such a resolution, before any third-party could effectively step into this situation, the Lease and the Professional Agreement would likely need to be amended, and the parties’ rights and obligations more specifically set forth. While our office would gladly take the primary role in drafting the documents, we will first need to know that Dr. Derasari is on board with such an approach. One immediate issue, made evident from the attached signature pages from the Lease, is that Dr. Derasari executed the Lease over a signature block which reads: Manjul Derasari, 1912 E. Busch Blvd., Tampa, FL 33612, EIN #20-1700965, but then hand-printed, next to his signature, “Mohak, LLC” (which, according to the SunBiz website, apparently changed its name to Mohak Properties, LLC in May of 2008), “or its holding entity” (which was nowhere defined). The foregoing raised an issue as to the identity of the Lessor under the Lease, which could be more specifically addressed in any amended lease. Dr. Kirkpatrick needs assurances that he will be permitted, without interference to continue running his operations, as he has in the past, through at least the end of this Lease term and the additional five-year term of the Lease (ending in 2023), which issue will need to be addressed in any amendment to the Lease. Dr. Derasari, for his part, has alleged that Dr. Kirkpatrick is using more than his share of Building 2. To this point, the parties, in any amendment to the Professional Agreement, or in any Operating Agreement for the LLC, will need to address specifically what space in Building 2 will be occupied and used by each of them. The parties should also seek to address their respective contribution, over the past several years, to the improvements on the property.If the foregoing proposed approach to resolving these issues is acceptable to you and your client, please provide me with the requested information sometime today or on Monday. As we discussed, the next advisable step may be to schedule a meeting between us and our respective clients, in hopes of defining the terms to be included in the amended Lease and Professional Agreement. Thank you for your help and please let me know your thoughts by Monday, if possible. Nothing contained herein should be deemed a waiver of any of my client’s legal claims against Dr. Derasari, or as an agreement to forbear from the immediate enforcement of any such claims. Very truly yours,
GMS/kls Enclosures cc: Dr. Anthony Kirkpatrick ACTIVE: K25110/386111:10301455_1
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January 31, 2018
From: Schaaf, Gary [mailto:GSchaaf@bplegal.com] Alan: Further to our recent conversation regarding a potential settlement between Drs. Anthony Kirkpatrick and Manjul Derasari, please review the following. As you have conceded in our prior communications, Dr. Derasari has no legal basis on which to evict or otherwise remove Dr. Kirkpatrick from the space which he occupies and utilizes in Building 1, until at earliest April of 2023. The current dispute has arisen solely as a result of two decisions by Dr. Derasari. First, he decided to move his practice from the East Busch Boulevard location, which I am certain he considers to be in his best financial interest. Second, he decided, recklessly and without legal basis, to attempt to evict Dr. Kirkpatrick from Building 1, as of the end of 2017. While Dr. Kirkpatrick has in no way contributed to the situation in which our respective clients find themselves, as we have discussed, he is open to considering various potential resolutions to the matter, including, but not limited to the possibility of (1) consolidating his operations entirely into Building 1, assuming that he would be properly compensated for costs incurred in any such consolidation, as well as for prior improvements to the property on which both buildings are located, which have benefited Dr. Derasari; or (2) entering into a long-term lease of the currently leased and utilized portions of Building 1, while agreeing to an equitable division of Building 2, for leasing by the LLC. However, Dr. Derasari’s reckless actions, in wrongfully attempting to evict Dr. Kirkpatrick from Building 1, have resulted in Dr. Kirkpatrick’s foundation incurring otherwise unnecessary legal fees and costs, for which he will expect reimbursement in any settlement. Further, in order to successfully negotiate any potential settlement, Dr. Kirkpatrick must establish a level of trust in Dr. Derasari, which is now lacking, based upon Dr. Derasari’s actions, not only in attempting the eviction, but in his subsequent communications. Specifically, contrary to your representations in our initial communications, when Dr. Derasari sent his September 17, 2017 eviction email, he already had copies of the subject Lease, signed and unsigned, as well as the Professional Agreement, in his possession. My letter of October 3, 2017 (to which you responded by letter dated October 17, 2017), requested Dr. Derasari’s legal basis for the threatened eviction, which has since been revealed to be lacking. In my response (by email dated October 19, 2017) to your October 17 request for a copy of the Lease, I pointed out that your client should have had a copy of the Lease and its attachments, and asked you to confirm that he did. While you indicated to me, during our first telephone conversation, on October 30, 2017, that you didn’t believe your client had a copy of the Lease, you were unable to answer my question as to whether Dr. Derasari believed that there was no signed Lease. In our second conversation, on November 3, 2017, you indicated that Dr. Derasari had an unsigned copy of the Lease, and that he did not believe that the Lease had ever been signed. In my follow-up email of November 10, 2017, I pointed out, among other things, that Dr. Kirkpatrick had forwarded Dr. Derasari copies of the executed signature pages of the Lease, in an email dated January 29, 2014, and provided you with copies of those pages. While, in your November 11, 2017 email, you indicated that Dr. Derasari did not then intend to file an eviction action against Dr. Kirkpatrick, you also indicated that you were simultaneously asking Dr. Derasari to check his records and emails to determine whether he had the Lease in his possession. By email dated November 15, 2017, I reiterated my request for any copy of the Lease in Dr. Derasari’s possession. In his subsequent email of November 19, 2017, Dr. Derasari, while asserting that the Lease was allegedly not properly witnessed (which would indicate that he believed it had been signed), also expressly stated that he did not keep a copy of the Lease. By emails dated November 27, 2017 and December 8, 2017, I again reiterated my request for any copy of the Lease in Dr. Derasari’s possession. In your December 13, 2017 email to me, you stated that, after Dr. Derasari wrote the eviction email, he had found, as an attachment to one of his past emails, a copy of the signed Lease, but that he had not forwarded you the email or its attachments. That same day, I asked you to scan me a copy of the Lease, which you had referenced in your email, which you did, by email dated December 18, 2017. Curiously, however, the scan which you provided reflected, at the bottom, that it had been faxed by Dr. Derasari to your office, on October 13, 2017, meaning that both you and he had the Lease over two weeks before the date of our first conversation, and during the period of my numerous requests for the copy. Moreover, since, at the top of the Lease is a notation which reads: On April 13, 2008, the Lease Agreement for the FOUNDATION was completed. PDF files of the signed pages are linked below: PDF File, it is clear that (1) Dr. Derasari printed out the Lease which he faxed you, from the website which also contained the executed pages of the Lease, and (2) both of you therefore, at the very least, had knowledge of the website which contains the signed pages. All of the foregoing leads us to believe that Dr. Derasari was, in fact, in possession of a copy of the Lease, as well as the executed signature pages, when he wrote the baseless eviction email to Dr. Kirkpatrick, which caused this dispute and the substantial costs which Dr. Kirkpatrick and his foundation have incurred. Based on the foregoing, before moving forward with our negotiations, Dr. Kirkpatrick demands an apology from Dr. Derasari, for the wrongful eviction notice, and for his misleading statements regarding his knowledge and possession of the Lease and its terms, as well as his agreement to reimburse the Foundation for its unnecessary legal costs, all of which flowed from Dr. Derasari’s unfortunate decision to wrongfully attempt the eviction, and were exacerbated by his misleading communications regarding the Lease. Please let me know if we can resolve the foregoing issues, so that we may move forward in our negotiations. Nothing contained herein should be deemed a waiver of any of my client’s legal claims against Dr. Derasari, or as an agreement to forbear from the immediate enforcement of any such claims. Nor should anything contained herein be deemed a settlement offer, as any settlement agreement will need to be reduced to writing and executed by both parties. -Gary Gary M. Schaaf
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FEBRUARY 27, 2018
From: Schaaf, Gary [mailto:GSchaaf@bplegal.com] Alan: In response to your recent emails inquiring as to the amount of legal fees my client is seeking, and whether we are in possession of “a copy of the lease that has the pages other than the first page and signature pages,” I have the following. To address the second question first, I believe we already provided you with full copies of the lease, and Kelly Duffy, of your office, actually provided it to me, by email dated December 18, 2017. Please see my email to you of January 31, 2018 (attached for your reference), in which I provide a history of the various exchanges of the documents, and which you responded to that same day. As to the first question, Dr. Kirkpatrick has now incurred over $30,000 in legal fees which would not have been incurred, absent Dr. Derasari’s increasingly aggressive attempts, throughout the second half of last year, and beginning, in earnest, in July of 2017, to coerce Dr. Kirkpatrick to buy out his interest in Building 2, as evidenced by (among other things) the below three emails.
The foregoing emails show that Dr. Derasari, when confronted with Dr. Kirkpatrick’s decision not to buy out his interest in Building 2, and in a wrongful and unauthorized attempt to force his hand in that regard (1) for the first time asserted his desire to utilize 50% of the building for storage (with which request Dr. Kirkpatrick seemed happy to oblige), (2) then (among other things) unilaterally ordered Dr. Kirkpatrick to clear all of his property from all front-facing rooms in the 1904 space, and (3) finally, improperly notified Dr. Kirkpatrick that he and his Foundation would be evicted from the Building 1 space, as of January 1, 2018. In light of Dr. Derasari’s foregoing threats, Dr. Kirkpatrick had no alternative than to seek legal counsel and thoroughly address all of his legal options. Please note that Dr. Kirkpatrick will be out of town for the next two weeks, and I will be largely unable to communicate with him until his return. -Gary Gary M. Schaaf Anthony Kirkpatrick MD, Ph.D. |