1. Gary Schaaf Esq. response to Darryl Richards Esq. : EXHIBIT 17

2. Dr. Kirkpatrick’s 45-page story document: EXHIBIT 18

 

 

 

EXHIBIT 17

 

3/22/2019

Darryl:

I attach, for your review, my letter in response to your December correspondence, as well as Dr. Kirkpatrick’s 45-page story document.

Please let me know if you have any problems with the various links, but pressing “Ctrl” while clicking the mouse should do the trick.

I will await your reply.

Have a great weekend.

-Gary

Gary​

M.

Schaaf

OfficeManagingShareholder
BoardCertifiedBusinessLitigationAttorney

Tampa

Ext:33912

(813.527.3912)

March 22, 2019

Via E-Mail to darrylr@jpfirm.com 

Darryl R. Richards, Esq.
Johnson, Pope, Bokor, Ruppel & Burns, LLP
401 E. Jackson Street,
Suite 3100
Tampa,
Florida 33602

Re: Dispute between Dr. Anthony Kirkpatrick and Dr. Manjul Derasari Response to Your Letter, dated December 17, 2018 and Email of  December 26, 2018

Dear Darryl:

1-I am writing in response to your letter of December 17, 2018, and email of December 26, 2018, and in furtherance of our recent correspondence, which followed the filing of your client’s complaint. 

2-As we discussed, attached to the email which transmits this letter is a 45-page document, which we have referred to as the “story,” which Dr. Kirkpatrick has compiled and authored, and which I have revised, setting forth the history of the parties’ relationship, the numerous documents and communications between them, and the various grounds for my clients’ legal claims and defenses. The story references various exhibits, links to each of which are provided.

3-Based upon the facts as set forth in the story, no grounds exist for the judicial dissolution of Manjul and Anthony, LLC (the “LLC”), or to force the sale of the building located at 1902 1904 E. Busch Boulevard (“Building 2”). To the contrary, such dissolution of the LLC and sale of Building 2 would constitute a material breach of the Lease, to which the Foundation is a party, and the Professional Agreement, to which the Foundation is an intended third-party beneficiary. 

4-Such a breach would undoubtedly create liability for the LLC (not to mention your client individually), which would almost certainly prove more harmful to the LLC than any alleged harm which could arise from merely (1) maintaining the status quo which has existed over the past 12 years, or (2) finding an acceptable tenant for 50% of Building 2, as Dr. Kirkpatrick and the Foundation have proposed.

5-By way of background, Section 6 of the Lease, provides that the Foundation shall have use rights in the property, as outlined in the Professional Agreement, which is expressly incorporated into the Lease. On December 13, 2012, Drs. Kirkpatrick and Derasari executed an Amendment to the Professional Agreement (a copy of which is referenced in the story), which formally restated and clarified that Dr. Derasari and Dr. Kirkpatrick purchased Building 2, on a 50/50 basis, through the LLC, for the primary purpose of supporting the practices of Dr. Kirkpatrick and the work of the Foundation.   

6-The Lease, the Professional Agreement, and its Amendment, expressly provided that a specific “purpose” for the purchase of Building 2 was to make the property more “conducive” for the operation of the Foundation, and its licensed surgery center, which (1) was built within, and (2) added great value to, Dr. Derasari’s Building 1.

7-Dr. Kirkpatrick protected his unilateral investment of approximately $300,000 into renovating and improving the property, including both buildings and the land around them (which is explained at length, with pictures and demonstrative aids, in the story) by requiring Dr. Derasari to ratify the Professional Agreement before he would invest such funds. Also, Dr. Derasari was aware, and the documents demonstrate, that the Foundation would not enter into the Lease of the Building 1 space, unless the Professional Agreement was ratified in the Lease, as it was on April 13, 2008.

8-Now, after occupying Building 1 for over ten years with Dr. Kirkpatrick, Dr. Derasari has moved his practice to Wesley Chapel, Florida, has demanded that Dr. Kirkpatrick purchase his 50% share in Building 2, and has conceded that he no longer needs to use space in, and seeks to cash in his financial investment in, Building 2.

9-During a meeting on July 26, 2017, Dr. Derasari asked Dr. Kirkpatrick if he was willing to purchase his 50% share in Building 2 and move the Foundation’s operations entirely to Building 2. When Dr. Kirkpatrick told Dr. Derasari that he was not prepared to make him an offer, Dr. Derasari was angered by Dr. Kirkpatrick’s decision, despite Dr. Kirkpatrick’s reasonable explanation that the Foundation needed to retain its cash reserves, since it was focusing more on research, and therefore generating less revenue from patient care.

10-The Lease, of course, provides a link to, and thereby incorporates, a complete copy of the signed Professional Agreement, which states that in the event of a “substantial change” in Dr. Derasari’s practice, such as moving his practice to a different city, Dr. Kirkpatrick has the “right” to continue to maintain his practice in Building 2 “to as close to as originally contemplated as possible.” Specifically, the Professional Agreement, which was incorporated into the Lease, clearly contemplated, in Section 6, that, in the event that Dr. Derasari couldn’t continue to practice, or opted to move his practice from the property, (1) Dr. Kirkpatrick would be able to continue his practice on the property, and (2) the Foundation would be able to continue its work on the property, during the term of the Lease and beyond. This point is clarified in the 2012 Amendment to the Professional Agreement. While the Professional Agreement, in Resolution #13, gave Dr. Kirkpatrick a right of first refusal, in the event that Dr. Derasari sought to sell his interest in Building 2, Dr. Kirkpatrick’s decision not to exercise such right in no way affects the Foundation’s rights as a tenant under the Lease, and as a third-party beneficiary under the Professional Agreement.

11-After the July 26, 2017 meeting, Dr. Derasari engaged in threats and other actions designed to force Dr. Kirkpatrick and/or the Foundation to purchase his 50% interest in Building 2, including, but not limited to: 

(1) Demanding that Dr. Kirkpatrick enter Building 2 only for emergencies and only through the rear access doors, which demand was contrary to the use of Building 2 for supporting Dr. Kirkpatrick’s practices and the work of the Foundation, including immediate access to its surgical supplies and equipment, which was the primary reason why the Foundation and Dr. Kirkpatrick agreed to enter into the Lease, as addressed in the Professional Agreement and clarified in its Amendment. It should be noted, in this regard, as set forth below and at length in the story, that Dr. Kirkpatrick has never restricted Dr. Derasari’s access to or use of Building 2.

(2) Threatening to sell his interest in Building 2 to a third party without Dr. Kirkpatrick’s consent, which is inconsistent with the Professional Agreement. 

(3) Threatening to evict the Foundation from Building 1, effective December 31, 2017, which would have caused severe and irreparable harm to Dr. Kirkpatrick’s patients and the work of the Foundation, and which led directly to the current dispute.  

(4) And now filing a lawsuit seeking to dissolve the LLC, which could permanently restrict the Foundation’s access to Building 2, destroy the Foundation, and cause severe irreparable harm to Dr. Kirkpatrick’s patients, all in direct violation of the Professional Agreement and the Lease. 

12-Dr. Derasari, as conceded in his email of September 14, 2017 (referenced in the story), profited substantially from the acquisition of Building 2, and the ensuing the Lease with the Foundation of part of Building 1. Dr. Derasari, specifically conceded that, although both parties equally invested in the purchase of Building 2, the Foundation alone voluntarily invested in improving the value of Buildings 2 and 1, with an up-front investment of approximately $300,000 of Dr. Kirkpatrick’s savings.

13-To this point, the Foundation paid the entire cost to renovate the office, bathroom, private patient rooms, and waiting room in Dr. Derasari’s Building 1, as well as the entire cost to renovate the drainage pond area immediately adjacent to Building 1, and subsequently paid all the costs associated with maintaining the waterfalls, pond and the bridge across the pond. Dr. Derasari has exploited the Foundation's investment of money in Building 1, by highlighting such improvements in his recent advertisement of Building 1 for lease. Again, all of the foregoing is explained in detail in the story.

14-After practicing medicine on the property for over ten years and benefitting from the increase in the value of his property, directly attributable to Dr. Kirkpatrick’s and the Foundation’s huge investments in the property, Dr. Derasari now seeks to breach the very agreements which allowed him to realize such benefits, based upon his unsupported argument that, because Building 2, which has never been rented to a third party, is not currently being rented, the LLC is now somehow suffering irreparable harm. 

15-While Dr. Derasari has asserted, in support of his claims, that Dr. Kirkpatrick is using more space in Building 2 than he is, it should be noted that Dr. Kirkpatrick has never in any way prevented Dr. Derasari from accessing or using Building 2. To the contrary, on four separate occasions (all four of which are set forth at length in the story), Dr. Kirkpatrick wrote to Dr. Derasari, assuring him that they could work to share 50% of the space in Building 2 without threatening the work of the Foundation, which offers were met only with Dr. Derasari’s above referenced threats.

16-To address the specific issues raised in your December 17, 2018 letter, while I believe that the above synopsis of Dr. Derasari’s actions, as set forth in far more detail in the story, support my clients’ position that Dr. Derasari acted in bad faith and engaged in deceptive conduct, I do not intend to make that point a focus of our ongoing discussions, although it will undoubtedly be raised in the litigation.

17-While you claim that it is not reasonably practicable to carry on the business of the LLC in conformity with its articles, it’s difficult to understand what, to your client’s way of thinking, has changed, and why Dr. Kirkpatrick’s medical practices and the work of the Foundation cannot continue to be supported, exactly as they have been for the past 12 years, and as contemplated in the Professional Agreement and its 2012 Amendment.

18-To that point, I don’t intend to imply, as you assert in your letter at the top of Page 2, that the LLC was created solely to benefit Dr. Kirkpatrick’s practice, as clearly (1) without the Professional Agreement, there would have been no Lease, nor any infusion of Dr. Kirkpatrick’s $300,000 in capital, nor the resulting increase in the value of the entire property, all of which was to the benefit of Dr. Derasari; and (2) Dr. Kirkpatrick has never been opposed to leasing some portion of Building 2 to an acceptable third-party tenant.

19-While you assert that Dr. Kirkpatrick wants to use Building 2 rent free, that Dr. Kirkpatrick wants Dr. Derasari to contribute half of the expenses with no revenue from the property, and that the LLC has attempted to lease the property to third parties, all of that is inconsistent with the facts, as set forth in detail in the story. In reality, it was at all times contemplated that Dr. Kirkpatrick and the Foundation would use Building 2 for storage and support. That was the primary reason the Building was acquired, and the only reason the Foundation agreed to lease the space in Dr. Derasari’s Building 1. It was also the primary purpose for creating the LLC, as evidenced in the Professional Agreement and its 2012 Amendment. 

20-Further, until only recently, Dr. Kirkpatrick, alone, had attempted to rent portions of Building 2 (as set forth in detail in the story), and was thwarted in those efforts, to a large extent, by Dr. Derasari’s unwillingness to be even minimally involved in that process. Also, as set forth directly above, Dr. Kirkpatrick repeatedly wrote to Dr. Derasari, assuring him that they could work to share 50% of the space in Building 2 without threatening the work of the Foundation

21-Moreover, Dr. Derasari, who benefited by, among other things, obtaining the Foundation as a tenant in his Building 1, and reaping the benefits of Dr. Kirkpatrick’s infusion of $300,000 of capital into the property, should not now be heard to complain that Dr. Kirkpatrick is not paying rent for Building 2, or that his or the Foundation’s use of the building constitutes wasting the assets of the LLC, particularly when Dr. Derasari spent the last 12 years apparently uninterested in finding a paying tenant for the property. It is clear that the LLC has at no time been involved in the business of actively leasing Building 2 for profit.

22-In response to your assertion that the Professional Agreement discussed one doctor’s purchase of the other’s interest in Building 2, in the event that the second doctor wished to sell his interest, as stated above, while the Professional Agreement, in Resolution #13, gave Dr. Kirkpatrick a right of first refusal, in the event that Dr. Derasari sought to sell his interest in Building 2, Dr. Kirkpatrick’s decision not to exercise such right in no way affects the Foundation’s rights as a tenant under the Lease, and as a third-party beneficiary under the Professional Agreement. As such, were Building 2 to be sold, the Foundation would have a valid claim for breach of the Lease, the term of which runs for another 4 years, which would certainly have a potentially damaging effect on the LLC, and on its ability to lease or transfer Building 2.

23-While there is arguably a deadlock between Drs. Derasari and Kirkpatrick as to what action to take, if any, with regard to Building 2, we do not agree that such deadlock is causing irreparable harm to the LLC. As we’ve discussed, I do not believe the statutory deadlock provision, which requires both deadlock and a threatened or suffered irreparable injury to the company, would apply where, as here, one stated primary purpose of the LLC is to provide Dr. Kirkpatrick’s practices and the Foundation with the additional space they need to operate and to carry out the Foundation’s mission. Moreover, since the Professional Agreement was incorporated into the Lease, any sale of Building 2 would comprise a breach of the Lease, which contemplated that the additional space would be available, and in reliance on which Dr. Kirkpatrick and the Foundation have invested substantial sums in the renovations of and improvements to the entire property, including both buildings.

24-As to the mold issue addressed in your letter, your argument indicates that Dr. Derasari is taking the unreasonable position that the HVAC system should not be repaired and the mold issue should not be addressed, thereby jeopardizing the value of Building 2, which would potentially result in harm to the LLC, whether the ultimate objective was sale or rental of the available portions of the building.

25-As to your claim that Dr. Kirkpatrick has allowed others to use the property, since we seem to be in agreement that any such instances were negligible, and Dr. Kirkpatrick, in the story, points out that any such instances were with Dr. Derasari’s prior consent, I will not further address the issue in this letter.

26-Since your client’s proposal to sell Building 2 would constitute a violation of the Lease, to which the Foundation is a party, and the Professional Agreement, to which the Foundation is a third-party beneficiary, which would likely result in liability on the part of Dr. Derasari and the LLC, we would be willing to consider a resolution by which the Foundation, or an affiliated entity, could assume ownership of Building 1, and Dr. Derasari could assume ownership of Building 2, so long as any such settlement would address, among  other things (1) reasonable and necessary monetary adjustments, to compensate Dr. Kirkpatrick and the Foundation for amounts already contributed to the property, and for costs to be incurred in reproducing, in Building 1, improvements already constructed in Building 2; and (2) future uses of the property, as a whole, including potential deed restrictions designed to limit the use of the property, for at least a reasonable time, to professional offices.

27-Nothing contained herein should be deemed a waiver of any of my clients’ legal claims against Dr. Derasari, or as an agreement to forbear from the immediate enforcement of any such claims. As this letter and the story have been communicated in furtherance of settlement negotiations, both they and their contents comprise privileged settlement communications, which will not be admissible in any legal proceeding.

28-I look forward to your response, and to further discussions toward a potential resolution of this dispute.   Very truly yours,  

Gary M. Schaaf

GMS1/kls Enclosures cc:  Anthony F. Kirkpatrick, M.D.

 ACTIVE: K25110/386111:12097453_1 

 

 

 

 

 

 

 

EXHIBIT 18

 

Dispute Between Drs. Kirkpatrick and Derasari

 

1. History

2. Mutual Benefits

3. Storage Space Building 2

4. Leasing Space Building 2

5. Free Amenities Provided for Dr. Derasari

6. Income Provided to Dr. Derasari by the Foundation

7. Professional Agreement

8. Chronology of Dispute

9. Noncompliance of Lease Agreement by Dr. Derasari

10. False Statements by Dr. Derasari

11. In Search of a Solution

12. References

 

1. HISTORY

Anthony Kirkpatrick M.D., Ph.D. (Dr. Kirkpatrick) and Manjul Derasari M.D. (Dr. Derasari) have had a long 30-year professional relationship. In 1988, Dr. Kirkpatrick was the first professor to be hired at the newly formed Department of Anesthesiology at the University at South Florida (USF). Dr. Derasari was one of the first residents to be assigned to train under Dr. Kirkpatrick.

After Dr. Derasari completed his residency, he decided to set up a private practice. He purchased the building located at 1910 – 1912 East Busch Blvd, Tampa (Building 1) from a dentist, for $300,000. In 2005, he set up an office that occupied two-thirds of the space in Building 1. (See photo below). The remaining one-third of the Building was reserved to be rented to a third party in the future.

The remaining space in Building 1 remained vacant on the market for more than two years. In late 2007, Dr. Kirkpatrick made a social call on Dr. Derasari at his office. During the meeting, Dr. Kirkpatrick disclosed that he planned to establish a licensed surgery center after he left USF. Dr. Kirkpatrick planned to continue his practice of medicine and clinical research at the not-for-profit International Research Foundation for RSD/CRPS (the “Foundation”) that he established at USF. Dr. Derasari said that he would be “honored!!!” if the Foundation rented the space in Building 1, but there were two problems.

http://rsdfoundation.org/en/exhibit-2-22-23.htm

First, there was not enough room in Building 1 to accommodate the construction of a licensed surgery center. Dr. Derasari said, however, that there was a slightly larger building (Building 2) immediately adjacent to his Building 1 occupied by a law firm, which might become available in the future. The address of Building 2 is 1902 – 1904 East Busch Blvd, Tampa. See photo below.

Follow the link below to view before and after photos, beginning with when Dr. Kirkpatrick first arrived on the property in 2007, to build a licensed surgery center in Building 1:

http://rsdhealthcare.org/Test_sign.htm

 

 

Dr. Derasari assured Dr. Kirkpatrick that if he rented the available space in Building 1, he would include additional space in Building 1, where Dr. Kirkpatrick could build an operating room and a recovery room to share with Dr. Derasari.

Dr. Kirkpatrick declined Dr. Derasari’s offer to rent the space in Building 1, recognizing that additional space would be required for a licensed surgery center.

While the use of Building 2 was crucial for the work of the Foundation and its surgery center, it was not essential for Dr. Derasari’s practice. Dr. Derasari did not need extra space in Building 2 to operate his business, which was basically a doctor’s office. Nonetheless, Dr. Derasari joined with Dr. Kirkpatrick in the 50/50 acquisition of Building 2 because he needed the Foundation to rent the space in Building 1, and he knew that Dr. Kirkpatrick intended to increase the value of the property, with the investment of up to $300,000 from his savings in improvements.

See EXHIBIT 8 in the following link:
http://rsdfoundation.org/en/exhibits-8-15.htm

The second problem was the sleazy appearance of the property and the surrounding neighborhood, which was not an appropriate location for a surgery center. Dr. Kirkpatrick described the property to Derasari as follows in an email:

See EXHIBIT 9 In the following link:
http://rsdfoundation.org/en/Schaaf.htm

Back then, the property looked more like a cheap strip mall rather than a medical facility. There was a huge “Massage” parlor sign on Busch Blvd. I was informed that one of the lawyers in Building #2 was soliciting prostitutes that entered your parking lot.

You understood at the outset that your financial investment of 50% in Building #2 was your cost of doing business with my not-for-profit surgery center.

The following link shows before and after photos of the landscape improvements made by our surgery center (which increased the value of Building #1 that you own). Note the huge “Massage” parlor signage in the front of the property. Also, note that the parking lot was used as a shortcut to Busch Blvd. As you recall, the parking lot was used as an unofficial “street” through the property:

http://rsdhealthcare.org/Test_sign.htm

The run-down appearance of the property did not seem to matter much to Dr. Derasari, as even the chairs in his waiting room for patients had holes in the seats.

Approximately one month after the visit, Dr. Kirkpatrick received a phone call from Dr. Derasari explaining that the law firm was interested in selling Building 2, which would provide the additional space required for Dr. Kirkpatrick to operate the surgery center and offer the control necessary to improve the landscape of the entire property.

http://rsdfoundation.org/en/exhibit-1-3-11.htm

 

At that time, Dr. Kirkpatrick had been consulting with Dr. Phillip Spiegel, Professor and Chairman of Orthopedic Surgery at USF. Dr. Kirkpatrick invited Dr. Spiegel to tour the property, as he had built a successful surgery center in Tampa. Dr. Kirkpatrick warned him about the depressed neighborhood and that Dr. Derasari reported that the area was being “infested with prostitutes.” Dr. Spiegel was aware that Dr. Kirkpatrick had only about $300,000 in personal savings to invest in the property. After Dr. Spiegel toured the property, he advised Dr. Kirkpatrick that the project was high risk and if he invested hundreds of thousands of dollars in building a licensed surgery center, he should protect his investment by entering into a professional agreement with Dr. Derasari.

On November 18, 2007, Dr. Kirkpatrick, acting on his own behalf and on behalf of the Foundation, entered into a professional agreement, (the “Professional Agreement”) with Dr. Derasari. A link to the Professional Agreement is found on the final page of this document.

Pursuant to the Professional Agreement, Drs. Kirkpatrick and Derasari formed Manjul and Anthony, LLC (the “LLC”), which then purchased Building 2, with funds provided equally by Drs. Kirkpatrick and Derasari.

Thereafter, on April 13, 2008, a lease agreement (the “Lease”) was signed by Dr.Kirkpatrick on behalf of the Foundation and by Dr. Derasari. A link to the Lease is found on the final page of this document.

Dr. Derasari and  the Foundation ratified the Professional Agreement in the Lease, as the Professional Agreement is referenced under Section 6 of the Lease, under the heading “USE” of the property. The Lease provides a link to a complete copy of the signed Professional Agreement, which states that in the event of a “substantial change” in Dr. Derasari’s practice, such as moving his practice to a different city, Dr. Kirkpatrick has the “right” to continue to maintain his practice in Building 2 “to as close to as originally contemplated as possible.” Specifically, the Professional Agreement, which, along with its 2012 Amendment, was incorporated into the Lease, clearly contemplated, in Section 6, that, in the event that Dr. Derasari couldn’t continue to practice or opted to move his practice from the property, Dr. Kirkpatrick would be able to continue his practice on the property, and the Foundation would be able to continue its work on the property, during the term of the Lease and beyond. While the Professional Agreement, in Resolution #13, gave Dr. Kirkpatrick a right of first refusal, in the event that Dr. Derasari sought to sell his interest in Building #2, Dr. Kirkpatrick’s decision not to exercise such right in no way affects the Foundation’s rights as a tenant under the Lease, and as a third-party beneficiary under the Professional Agreement.

The Lease also documents, under the heading “USE” of the property, the “purpose” for acquiring Building 2 on a 50/50 basis, which was not intended to be for a primarily profit-making use. Section 6 of the Lease did not use the word “business” or any general-purpose clauses to indicate that the LLC was intended to be a profit-making entity. To the contrary, the opposite was true, as the Professional Agreement, and the 2012 clarification and amendment thereto, provided that the purpose of the LLC and the acquisition of Building 2 was “to add value to the location” that Dr. Kirkpatrick believed would “best” make the property most conducive “to work for The International Research Foundation for RSD/CRPS (Foundation).”

Dr. Derasari nonetheless benefited financially from the acquisition of Building 2, in that the purchase of Building 2 made it possible for Dr. Derasari to make money by leasing the Building 1 space to the Foundation, which had otherwise remained vacant while on the market for more than two years.

Dr. Derasari’s email of September 14, 2017, reveals another way that he profited financially from the acquisition of Building 2. Although both parties “equally” invested in the purchase of Building 2, only Dr. Kirkpatrick and the Foundation “voluntarily invested in improving” the value of Building 2 to make Building 2 “conducive to the work of the Foundation,” which inherently increased the value of not only Building 2, but Dr. Derasari’s Building 1 as well.

See EXHIBIT 15 in the following link:
http://rsdfoundation.org/en/exhibits-8-15.htm

Further, the Foundation invested money to prevent the depreciation in the value of Building 2 after it was purchased:

......but for the fact that the Foundation “invested” tens of thousands $ to independently “improve and modify” Building #2, the building today would be nothing more than worn-down, cheap, warehouse located on Busch Bush Boulevard.

See EXHIBIT 13 in the following link:
http://rsdfoundation.org/en/exhibits-8-15.htm

 

FINANCIAL RISK

The financial risk to Dr. Derasari for teaming up with Dr. Kirkpatrick in 2007 was minimal. In contrast, there was an enormous risk of Dr. Kirkpatrick losing up to $300,000  of  his  savings  which  was  ultimately  invested  in  the  property. Dr.Kirkpatrick planned to continue his research by building a licensed surgery center on the property at a high cost. Proceeds to operate the nonprofit Foundation would have to come from the care and treatment of patients. Since the Foundation receives very little money from donations, it would be impossible to obtain sufficient income to support the surgery center's research from patient care by only receiving reimbursement from insurance companies in the United States. Care would have to be provided by the Foundation on a cash basis mostly from outside the United States. While it is difficult to understand why a patient would pay cash for care and treatment by Dr. Kirkpatrick, when they could go five minutes up the road to USF and have the care and treatment paid for immediately by their insurance company, or why a patient would journey from Australia or Sweden to receive treatment from Dr. Kirkpatrick, the fact is that they did.

Dr. Kirkpatrick depended on his international reputation in treating a potentially catastrophic neurological disorder called complex regional pain syndrome, to draw patients from overseas. He was able to attract enough cash-paying patients from around the world to support the work of the Foundation.

The Foundation is a Florida not-for-profit corporation formed on June 24, 2002. The address listed for the Foundation on the Florida Secretary of State website is 1910 E. Bush Blvd., Tampa, FL 33612, and its status is active.

The Foundation has obtained Section 501(c)(3) exempt status from the Internal Revenue Service, and currently operates as a tax-exempt entity. The Foundation has been the principal tenant and has paid the rent on Building 1 to Dr. Derasari since the execution of the Lease. Initially, Dr. Derasari also housed his practice in Building 1, but he has recently relocated his practice to Wesley Chapel.

According to the 2018 annual report filed by the Foundation , the current Officers and Board of Directors of the Foundation are comprised of Richard Hoffman Ph.D., President and Director, Anthony Kirkpatrick M.D., Ph.D., Vice-President, Treasurer and Director, Jerry H. Trachtman, Esq., Secretary and Director, Nancy Nemhauser, Esq., Director, Shannon Stocker, M.D., Director, and James Alexander, M.D., Director.

Jerry H. Trachtman, Esq., Professional Association, is the current Registered Agent of the Foundation, with an official address at 1735 West Hibiscus Blvd. Suite 300 Melbourne, FL 32901.

Follow this link to view the members of the Board of Directors:

https://rsdfoundation.org/directors.html

Although the Board of Directors approved a salary for Dr. Kirkpatrick, he declined the offer. Dr. Kirkpatrick has worked full-time performing pro bono professional work on behalf of the Foundation for over a decade. In 2007, had Dr. Kirkpatrick’s ambition to build a nonprofit surgery center failed, Dr. Kirkpatrick would have lost his savings, as the Foundation had no cash reserves to bail Dr. Kirkpatrick out.

THE PROFESSIONAL AGREEMENT IS BINDING

Recently, Dr. Derasari referenced the Professional Agreement as binding on both parties in the current dispute.

On September 6, 2018, Dr. Derasari wrote:

The signed lease and additional agreement by AFK and myself in 2007, [the Professional Agreement] clearly states and signed by both of us (MDD & AFK ) that we will negotiate to end the dispute.

Please read that.  

http://rsdresearch.org/kirkpatrick/derasari-9-6-18.htm

Also, Dr. Derasari’s attorney referenced the Professional Agreement as a binding document on both parties in the current dispute.

On November 16, 2018, Mr. Richards wrote:

The Professional Agreement that you rely on references Start-Up costs and indicates annual costs for maintaining a level II surgery center. That appears to reference the initial start-up cost but does not reference ongoing expenses. Dr. Derasari does not require a surgery center license for his practice. If you have documentation that created an ongoing obligation to pay license fees, please provide that to me.

See EXHIBIT 1 in the following link:
http://www.rsdfoundation.org/en/drichards.htm

 

 

2. MUTUAL BENEFITS

For a decade, Dr. Derasari frequently commented how his relationship with the Foundation benefitted him personally, financially and professionally. Specifically, Dr. Derasari commented on how Dr. Kirkpatrick’s enormous upfront investment of money in the property resulted in a “makeover” of the entire property that made it look like it is worth a “million dollars.”  In that sense, he said, both parties “got benefitted.” Dr. Derasari noted that despite looking like a sleazy strip mall “infested prostitutes … you still came…. Did that benefited me and my practice YES indeed” … and he felt “honored!!!” He also commented to his CPA that Dr. Kirkpatrick should occupy more space in Building 2 than him because the Foundation had unilaterally spent a lot of money on increasing the value of Building 2.

http://rsdfoundation.org/en/exhibit-2-22-23.htm

The mutual benefit for both practices was evident in several ways.

3. STORAGE SPACE IN BUILDING 2

Dr. Derasari used Building 2 to hold meetings in the Foundation’s conference room and to store his medical records, furniture, and the personal belongings of his daughter. Also, Dr. Derasari and his employees used many of the amenities installed and maintained by the Foundation in Building 2 for free. A partial list of amenities and property improvements provided by the Foundation is included below.

Dr. Derasari documented in an email sent to his CPA (Brian Leidel, CPA) why Dr. Kirkpatrick was justified in using more space in Building 2 than he and his employees. Only the Foundation invested money to renovate and increase the value of Building 2.

Dr. Derasari wrote:

Foundation and its staff has used the LLC Building [Building 2] much more than I or my staff. Foundation has invested more money into it.

http://rsdfoundation.org/en/exhibit-2-22-23.htm

 

 

4. LEASING SPACE IN BUILDING 2

The Professional Agreement did not contemplate that Building 2 would become a profit center.

After Dr. Kirkpatrick built the surgery center in Building 1, it became apparent that, instead of requiring all of the space in Building 2 to support the Foundation and his practice, he would need only about half of the Building 2 space. As a result, Dr. Kirkpatrick attempted to rent out the remaining Building 2 space, with the understanding that any money received from rent would benefit the LLC by paying for the monthly maintenance of any utilities and similar cost of  the building. Also, any revenues received would serve to maintain the health of the building. For example, in 2013, the LLC had to pay $11,000 to replace two HVAC units in Building 2. Currently, Building 2 has an HVAC unit that is not working and must be replaced. Dr. Derasari has refused to pay his 50% share of the cost for a new, much-needed HVAC unit.

The Foundation paid to have signage installed on Busch Blvd that read, “Professional Space Available.” Also, the Foundation paid to announce in the local medical media the availability of space for a professional office in Building 2. In contrast, there is no evidence that Dr. Derasari ever sought a renter for any portion of Building 2. Dr. Kirkpatrick wrote to Dr. Derasari on several occasions expressing disappointment that Dr. Derasari failed help Dr. Kirkpatrick find a renter for the 50% of the space in Building 2 that was not being used.

Dr. Derasari made it difficult for Dr. Kirkpatrick to carry out negotiations with potential tenants in good faith. In September 2013, for example, Dr. Derasari told Dr. Kirkpatrick that he would have to tell a “serious” potential renter to wait more than two weeks before he could engage directly in negotiations with the renter. Dr. Derasari said he was too busy to meet with the potential tenant because he was participating in a cross-country event and studying for a board examination. Florida law provides that neither Dr. Kirkpatrick nor Dr. Derasari has authority, acting alone, to lease or sell the property owned by the LLC.

http://rsdfoundation.org/en/exhibit-9-1-13.htm

Dr. Derasari decided from the outset that the LLC would always “carve out” space in Building 2 for the Foundation’s work, and agreed that the Foundation would occupy more space in Building 2 than he would, because only the Foundation spent money to renovate Building 2.

For example, Dr. Derasari sent the following email to Dr. Kirkpatrick with instructions about how to carve out space for rent in Building 2 that did not disrupt the work of the Foundation:

Please find out 1904 [ the largest space in Building #2 ] how much they are interested in [renting], from what I understand they do not want all of 1904 - that may work for us as you have two rooms of 1904. So carve out is possible.

http://rsdfoundation.org/en/exhibit-9-5-13.htm

Over time, Dr. Derasari seemingly became less interested in renting a portion of space in Building 2. For example, he disconnected the phone associated with the phone number - (813) 933-5900 - which is still posted on the rental sign that Dr. Kirkpatrick had installed on Busch Blvd. See photo of signage below.

 

 

5. FREE AMENITIES PROVIDED FOR DR. DERASARI

On September 4, 2013, Dr. Derasari thanked Dr. Kirkpatrick in an email for the free amenities and property improvements that the Foundation added to the property for him and his employees to enjoy. Dr. Derasari suggested that his employees appreciate the numerous free services and amenities that the Foundation provided for Dr. Derasari’s practice.

http://rsdfoundation.org/en/exhibit-9-2-13.htm

The free amenities and services paid independently by the Foundation included:

All of the outdoor lighting.

A 24/7 security system that includes 11 security cameras and four security photo beams that protect the entire property.

Maintenance of the electric pumps for four waterfalls in front and between the Buildings that operate 24/7.

Installation and maintenance of the garden in the old drainage pond area and the Koi pond.

Maintenance of the electric gate at the entrance to the property.

Payment for huge repairs for Building 1 even though the repairs were the responsibility of Dr. Derasari to pay under Section 7 of the Lease Agreement.

The Foundation provided furniture, medical equipment, a large-screen Plasma TV, a blu-ray player, and tools all for free, all of which benefited Dr. Derasari's practice and his ownership interests in both building.

The amenities in Building 2 paid for by the Foundation and used by Dr. Derasari, and his employees included the conference room,  exercise room, kitchen, bathrooms, exercise room, garden supply room, and tool room. Dr. Derasari also used the Foundation’s pickup truck to transport items to and from Building 2.

Dr. Derasari is cashing in on the property improvements made 100% at the expense of the Foundation and/or Dr. Kirkpatrick to his Building 1. Currently, he is attempting to lease his side of Building 1, using an ad that features a photo of the garden, wooden bridge, pond, and four waterfalls, all constructed and paid for by the Foundation. Converting Dr. Derasari’s old drainage pond to the current impressive feature on his property cost the Foundation an enormous amount of money and hard labor as demonstrated in these two videos:

http://www.rsdfoundation.org/en/Waterfall-Construction.htm

http://www.rsdfoundation.org/en/bridge.htm

Follow the link below to Dr. Derasari’s ad for leasing the side of Building 1 which he vacated:

http://rsdresearch.org/kirkpatrick/waterfalls.htm

 

 

The “million dollar” makeover described by Dr. Derasari, but paid for by the Foundation, is highlighted in a 4K video published on the Foundation's website:

https://rsdfoundation.org/tour.html

The Foundation was able to make these significant improvements to the landscape without increasing the maintenance costs for Dr. Derasari.

In an email, Dr. Derasari made a note about the free amenities added to his property and informed his employees that Dr. Kirkpatrick and his staff have the right to share the following areas in Building 1:

  • The operating room.

  • The recovery room (PACU).

  • The kitchen that also serves as a break-room

http://rsdfoundation.org/en/exhibit-9-2-13.htm

 

 

 

6. INCOME PROVIDED TO DR. DERASARI’S PRACTICE BY THE FOUNDATION

As an employee of the Foundation, Dr. Derasari earned significant income. To be legally used by the Foundation and provide anesthesia, the surgery center had to be licensed by the Florida Board of Medicine. The Foundation employed Dr. Derasari as an anesthesiologist in Building 1. His employment was a source of significant funds for his practice. Currently, the average anesthesiologist in the United States earns a median hourly rate of $178. The Foundation employed Dr. Derasari to perform IV sedation while Dr. Kirkpatrick carried out surgical procedures on his patients. The Foundation paid Dr. Derasari $200 for each IV sedation. Dr. Kirkpatrick’s surgical procedures took less than 10 minutes. Accordingly, Dr. Derasari earned more than $1,200 per hour for his work. Dr. Derasari simply had to step across the hall in Building 1 to receive a generous income from the Foundation.

Dr. Derasari had no overhead expenses because the Foundation paid for the anesthesia equipment, drugs, and supplies used by him in the operating room. Annual costs to the State of Florida for the annual onsite inspections and for maintaining a licensed surgery center is $1,500/year. Without renewal of the license each year, Dr. Derasari could not legally work in the operating room, for which he was paid by the Foundation. Nonetheless, Dr. Derasari refused to share the cost for the annual renewal of the license for the surgery center.

Dr. Derasari requested that the Foundation provide advanced rent payments as a lump sum for the year 2013, to help him to pay off his part of the LLC mortgage, which was 7.5% interest on $320,000.The Foundation complied with Dr. Derasari’s request, and did not charge Dr. Derasari interest on what was effectively a loan.

Dr. Derasari benefitted financially from the Foundation’s not-for-profit status, as he was exempt from paying state taxes on the rental income that he received from the Foundation.

Over the past decade, hundreds of thousands of dollars of free amenities and services were paid by the Foundation that directly benefited Dr. Derasari and his employees. The Foundation increased the value of the entire property as contemplated by the Professional Agreement.

Dr. Derasari continues to reap the benefits of the property improvements made solely at the expense of the Foundation to his Building 1 (a licensed surgery center), as well as the landscaping of the property upon which it sits. These improvements to the property owned by Dr. Derasari were paid entirely by the Foundation.

 

 

7. THE PROFESSIONAL AGREEMENT

The Foundation, Professional Agreement, and Operation of Building 2

On November 7, 2007, Dr. Kirkpatrick and Dr. Derasari executed a proposal with Synovus Bank to finance the purchase of Building 2. On November 18, 2007, Dr. Kirkpatrick, acting on behalf of the International Research Foundation for RSD/CRPS (the "Foundation"), signed the Professional Agreement with Dr. Derasari.

The Professional Agreement was executed with the understanding of the parties that Building 2 was being acquired to enable Dr. Kirkpatrick to create an overall atmosphere for the property that will be most conducive to Dr. Kirkpatrick's practice and the work of the Foundation. With that understanding, Dr. Kirkpatrick began, for the first time, to unilaterally invest up to $300,000 of his savings “to add value to the location,” as contemplated in the Professional Agreement.

The LLC was formed on November 29, 2007. Building 2 is owned by the LLC; which is owned equally by Dr. Kirkpatrick and Dr. Derasari. The LLC was formed pursuant to the Professional Agreement, which was prepared by Richard Wilkes, Esq., and initialed, supplemented in handwritten notes, and ratified by Dr. Derasari and the Foundation, in both the Lease and in a later 2012 amendment. While that Agreement anticipated that a formal operating agreement would be drafted as part of the formation of the LLC, no formal document titled “Operating Agreement” was ever prepared or executed.

As the only two members of the LLC, Dr. Kirkpatrick and Dr. Derasari treated the Professional Agreement as an operating agreement, operated in accordance with it  throughout the existence of  the LLC,  and  never executed a more formal operating agreement. There are no material assets owned by LLC, other than Building 2 and the land on which it sits.

The Professional Agreement contemplated that Dr. Derasari would execute a Lease of space in Building 1 for the Foundation to build a surgery center. Dr. Derasari delayed the signing of the lease for five months, leaving the Foundation with no guarantee that it could build a surgery center on the property. As a result, the Foundation began looking at other property located near Building 2, in which to construct its surgery center. On April 9, 2008, Dr. Kirkpatrick sent the following email to Dr. Derasari, threatening to obtain legal counsel. The Lease was signed five days later by Dr. Derasari.

From: Anthony Kirkpatrick MD, PhD [mailto:akirkpat@tampabay.rr.com] Sent: Wednesday, April 09, 2008
9:16 AM

To: Dr. Manjul Derasari

Subject: Delay in signing of the two lease agreements

Manny: Thanks for taking the time to clarify the reason for delaying the signing of the two lease agreements. Also, thanks for reassuring me that there is no reason to seek legal counsel on my part or to share the delay issue with the Foundation’s Board of Directors.

It is my understanding that if you do not obtain the registration of your company’s new name with the State of Florida; you intend to sign the two lease agreements as an individual. Please let me know immediately if the above does not accurately account for our telephone conversation this morning.

Tony

In late 2012, Dr. Derasari wanted to pay off the loan to the bank for the purchase of Building 2. The Foundation’s share of the cost to pay off the mortgage was approximately $140,000. Paying off the mortgage for Building 2 with $140,000 in cash from the Foundation would have placed the Foundation in significant financial stress. Also, Dr. Derasari requested that the Foundation grant him an interest-free loan to help him pay off his $140,000 share of the mortgage. On February 22, 2013, Dr. Derasari wrote to Dr. Kirkpatrick:

I do APPRECIATE advance rent. It has helped me to PAY OFF my part of LLC mortgage (Building 2), which was 7.5% interest on $320,000, Manjul & Anthony LLC was losing in mortgage every month.

I was that SERIOUS in paying off. Again I appreciate Dr. K agreed.  

http://rsdfoundation.org/en/exhibit-2-22-23.htm

The Foundation would not agree to the payoff of the mortgage on Building 2 unless Dr. Derasari committed to clarifying certain terms of the 2007 Professional Agreement. On December 13, 2012, Drs. Kirkpatrick and Derasari executed an Amendment to the Professional Agreement that explicitly placed Dr. Kirkpatrick, not Dr. Derasari, in control of how Building 2 would be used. Dr. Derasari further confirmed that Building 2 had been purchased on a 50/50 basis for the primary purpose of supporting the practice of Dr. Kirkpatrick and the work of the Foundation. The following statement in the original Professional Agreement was revised:

You and Dr. Derasari will acquire the law building on a 50/50 basis; the purpose of this acquisition is to obtain control over the entire parcel which will enable you to create the overall atmosphere for the property that you believe will be best conducive to your practices and to the work of the Foundation; and will add value to the location.

The phrase, “You and Dr. Derasari will acquire the law building on a 50/50 basis; the purpose of this acquisition is …” in the above statement was deleted and replaced with, “In 2007, Dr. Anthony Kirkpatrick and Dr. Manjul Derasari formed an LLC for the operation of building #2…”

The word “you” in the above statement was deleted twice and replaced with “Dr. Kirkpatrick.” The word “best” was replaced with “most.” The word “your” was deleted and replaced with “Dr. Kirkpatrick’s.”

The 2012 Amendment:

AGREEMENT
12/13/2012

In 2007, Dr. Anthony Kirkpatrick and Dr. Manjul Derasari formed an LLC for the operation of building #2 to obtain control over the entire parcel which will enable Dr. Kirkpatrick to create an overall atmosphere for the property that will be most conducive to Dr. Kirkpatrick's practices and to work for The International Research Foundation for RSD / CRPS (Foundation).

(A copy of the 2012 Amendment is available under References, on the final page of this document.)

Karen Hahn signed the Amendment as a witness, and a copy of the executed document was sent to Dr. Derasari by email on December 13, 2012. The General Counsel for the Foundation, Jerry Trachtman, Esq., as well as the Foundation Board, approved the executed Amendment and the Foundation approved the pay-off of the loan for Building 2.

As such, and in consideration of the Foundation’s pay off of the loan,  Dr. Derasari, in 2012, found it appropriate to clarify that the Foundation had the right to determine how Building 2 would be used.

The use of Building 2 was crucial for the work of the Foundation and its surgery center, but it has never been essential for Dr. Derasari’s practice, which was basically a doctor’s office in Building 1. Dr. Derasari invested money in the purchase of Building 2 knowing that he would not use it much, even though Dr. Kirkpatrick repeatedly offered to share 50% of the space. After using Building 2 for a decade, Dr. Derasari noted:

I am heavily invested in 1902 -1904 building [Building 2] without using it much.

EXHIBIT 13
https://rsdfoundation.org/en/exhibits-8-15.htm

Further, Dr. Derasari did not need Building 2 to support his practice, but he needed the Foundation’s investment in the property. If he did not join Dr. Kirkpatrick in the 50/50 purchase of Building 2 in 2007, he would have lost the Foundation as a potential renter for the space in Building 1, which had been on the market for two years, and forfeit the opportunity to increase the value of the property with the potential investment of $300,000 from Dr. Kirkpatrick’s savings.

Dr. Derasari believed that the Foundation’s investment in the property would capitalize on his 50% investment in the purchase of Building 2. Indeed, the Professional Agreement anticipated that the Foundation’s investment in the property “will add value to the location.” Further, Dr. Derasari often acknowledged that the Foundation’s “million dollar makeover” of the property benefitted him professionally and personally.

http://rsdfoundation.org/en/exhibit-2-22-23.htm

Moreover, as a result of the Foundation’s upfront payment of $140,000 requested by Dr. Derasari and the interest-free loan of approximately $23,000 to Dr. Derasari to pay off the mortgage on Building 2, the LLC amended the Professional Agreement to give the Foundation the right to control the use of Building 2.

A careful dissection of the record reveals that the Foundation was a third-party beneficiary of the Professional Agreement.

First, the Professional Agreement identifies the “Foundation” as the intended beneficiary for the purchase of Building 2. For that reason, Dr. Derasari expressly acknowledged in the Lease that the Foundation had signed the Professional Agreement.

The Professional Agreement provided:

You and Dr. Derasari will acquire the law building [Building 2] on a 50/50 basis; the purpose of this acquisition is to obtain control over the entire parcel which will enable you to create the overall atmosphere for the property that you believe will be best conducive to your practices and to the work of the Foundation; and will add value to the location. (Emphasis added).

Five years later, in 2012, Drs. Kirkpatrick and Derasari executed an Amendment to the Professional Agreement, which explicitly placed the Foundation and Dr. Kirkpatrick, not Dr. Derasari, in control of how Building 2 would be used. On December 13, 2012, Dr. Derasari formally declared that he acquired Building 2 on a 50/50 basis for the primary purpose of supporting the practices of Dr. Kirkpatrick and the work of the Foundation.

Second, on April 13, 2008, the Foundation entered into a Lease with Dr. Derasari for space in Building 1 that he owns. The Lease is linked below in References, on the final page of this document.

In the Lease, Dr.  Derasari specifically identifies and acknowledges that the Foundation signed the Professional Agreement on November 18, 2007. The Lease states that the Landlord (identified as Dr. Derasari in the Lease) and the Tenant (identified as the Foundation in the Lease) "signed" the Professional Agreement, describing the property and how the property would be used by the Foundation. Under the “USE” section of the Lease, a link is provided to the site on the Internet where a complete copy of the signed Professional Agreement can be reviewed.

Under “USE,” Section 6, the Lease states:

On November 18, 2007, the Landlord and Tenant signed an agreement that included a description of the Tenant's use of the property:

As set forth above, the Professional Agreement provided Dr. Kirkpatrick some protection for his risky upfront investment of his savings, providing that if there should be a “substantial change” in Dr. Derasari’s practice, the Foundation shall have the “right” to continue its work on the property.

The Professional Agreement provided as follows:

Given the fact that the relationship between you and Dr. Derasari is personal, in the sense that even another doctor in the same specialty may not be an adequate substitute, and given the fact that neither party would necessarily want to have the same arrangement with anyone else, in the event of a substantial change in one party's circumstances (e.g., death, disability, significant change in practice, loss of license, etc.) the other party should have a right to continue  to maintain your practice to as close to as originally contemplated as possible.

To this point, in 2018, Dr. Derasari moved his practice to Wesley Chapel, Florida, and demanded that Dr. Kirkpatrick purchase his 50% share in Building 2. Dr. Derasari stated that he no longer needed to use space in Building 2 for his practice and wanted to cash in on his financial investment in Building 2. While Dr. Derasari moved his practice and was looking for a way to get Building 2 off of his balance sheet, Dr. Derasari’s self-imposed business considerations can in no way alter the terms of the Lease Agreement or the Professional Agreement into which he and the Foundation have entered.

Dr. Kirkpatrick further protected his savings by requiring Dr. Derasari to ratify the Professional Agreement, in the Lease, before he would invest his savings in renovating the property. Also, Dr. Derasari was aware, and the record demonstrates, that the Foundation would not lease the space in Building 1, beginning on January 1, 2008, unless the parties ratified the Professional Agreement, on November 18, 2007.

Email to Dr. Derasari from Dr. Kirkpatrick: November 18, 2007

You and I have already reached an agreement on most of these resolutions through numerous discussions. It is essential to complete this task today because we will be required to make our first substantial deposit of money on Monday. If we do not make that deposit for the fence/wall project on Monday, I will not be able to open my practice on January 1.

http://rsdfoundation.org/en/agreement-11-18-07.htm

The Lease

As set forth above, on April 13, 2008, the Lease was signed by Dr.Kirkpatrick on behalf of the Foundation and by Dr. Derasari. Section 6 of the Lease, under the heading “USE,” provides that the Foundation has the right to use the property, including Building 2, which was purchased to gain control of the entire property and to support “the work of the Foundation.” The Lease contains the following provision for attorney fees:

The Lease Agreement provides:

Attorneys Fee Provision: If either Owner or Occupant commences or engages in any legal action or proceeding against the other party arising out of or in connection with this Agreement, the Office or the Building, the prevailing party shall be entitled to recover from the losing party reasonable attorneys’ fees, together with any costs and expenses incurred in any such action or proceeding, including any attorneys’ fees, costs and expenses incurred on collection and on appeal.

Issues Involving the Lease and the Professional Agreement

Dr. Derasari is aware, and the record demonstrates, that for over a decade the Foundation required space to be “carved out” in Building 2 for its work. Dr. Derasari is also aware that if he restricted the Foundation’s access to Building 2, there would not be enough space in Building 1 for the Foundation to carry out its work.

During a meeting on July 26, 2017, Dr. Derasari asked Dr. Kirkpatrick if he was willing to purchase his 50% share in Building 2 and move the entire Foundation to Building 2. When Dr. Kirkpatrick told Dr. Derasari that he was not prepared to make him an offer, he became “visibly upset” and “angry.” On this issue, Dr. Kirkpatrick explained:

At this time, the Foundation would like to keep a good cash reserve since the Foundation is more focused on research and therefore not generating as much money from patient care and treatments.

See EXHIBIT 8 at the following link:
http://rsdfoundation.org/en/exhibits-8-15.htm

Since that date, Dr. Derasari has asserted various threats in an effort to leave the Foundation with no choice but to purchase his 50% interest in Building 2.

Dr. Kirkpatrick believes these threats by Dr. Derasari to be extortionate, and that they show that Dr. Derasari, despite being a doctor himself, is willing to place Dr. Kirkpatrick’s patients in danger of severe and irreparable harm, simply to coerce money from Dr. Kirkpatrick.

First, Dr. Derasari demanded and sought to restrict Dr. Kirkpatrick’s entry into Building 2 only for emergencies and only through rear access. Dr. Derasari's demand was contrary to one of the most important reasons the Foundation and Dr. Derasari ratified the Professional Agreement and agreed to purchase Building 2, which  was  making  the  property  most “conducive to the work for the Foundation.” Also, Dr. Derasari’s attempt to direct or limit Dr. Kirkpatrick in his use of Building 2 violated the Professional Agreement, as ratified and clarified in the 2012 Amendment.

The Foundation must have immediate access to its surgical supplies and equipment in Building 2, especially when the Foundation schedules patients for surgery. If Dr. Kirkpatrick were to obey Dr. Derasari's orders, it would endanger the lives of Dr. Kirkpatrick's patients, and could permanently prevent the Foundation from carrying out its work. Dr. Kirkpatrick, on the other hand, has never restricted Dr. Derasari's access to Building 2.

Second, Dr. Derasari threatened to sell his interest in Building 2 to a third party without Dr. Kirkpatrick’s consent, which would violate Florida law governing the operation of LLCs.

Third, Dr. Derasari threatened to evict the Foundation from Building 1 on a specific date, which would cause severe and irreparable harm to Dr. Kirkpatrick’s patients. Dr. Derasari’s intention, as evidenced by his 2017 email, was to evict the Foundation from Building 1 and then force the Foundation to purchase his interest in Building 2. Preventing access permanently to Building 1 would destroy the Foundation, and cause severe irreparable harm to Dr. Kirkpatrick’s patients.

Fourth, on February 11, 2019, Dr. Derasari sent an email to Dr. Kirkpatrick threatening to file a lawsuit dissolving the LLC. Dissolving the LLC could permanently restrict the Foundation’s access to Building 2, destroy the Foundation, and cause severe irreparable harm to Dr. Kirkpatrick’s patients. The dissolution of Building 2 and putting it up for sale would be a direct violation of the Lease under the “USE” provision. Section 6 provides the right of the Foundation to use Building 2 "to support its work."

Dr. Derasari's threat to dissolve the LLC and sell Building 2 violates one of the primary purposes of the Professional Agreement, and to the purchase of Building 2, as ratified in the Lease and the 2012 Amendment to the Professional Agreement, being the purpose of supporting the practices of Dr. Kirkpatrick and the work of the Foundation.

See EXHIBIT 17 in the following link:
https://rsdfoundation.org/en/exhibits-8-15.htm

If any of these actions are taken, the Foundation will have no choice but to file a lawsuit to prevent the action and to request monetary damages.

Any claim by the Foundation would be based on a breach of the Professional Agreement, of which it is an intended beneficiary, as well as the Lease, Section 6 of which insures the Foundation’s continued use of the property, and actually states that  the  Tenant,  which  is  the  Foundation,  signed  the  Professional Agreement, which governs the LLC, showing that the Foundation was clearly an intended beneficiary of the Professional Agreement.

Moreover, on December 13, 2012, Drs. Kirkpatrick and Derasari executed an Amendment to the Professional Agreement, which clarified and ratified that the Foundation was the intended beneficiary of the Professional Agreement. The Professional Agreement governing the LLC was amended to define more explicitly the purpose and operation of Building 2, and to clarify that the acquisition of Building 2 was intended to enable Dr. Kirkpatrick to create an overall atmosphere for the property that would be “most” conducive to Dr. Kirkpatrick's practices and the work of the Foundation. As such, Dr. Derasari cannot argue that the Foundation was not an intended beneficiary of the Professional Agreement, and it follows that preventing the Foundation’s use of any portion of Building 2, by sale of the building or otherwise, would cause substantial damages to the Foundation, and would constitute a material breach of the Professional Agreement, as well as the Lease.

Further, Dr. Derasari, despite repeated requests, has failed to repair damages to the Building 1 property, as required under the terms of the Lease. Specifically, Dr. Kirkpatrick made three requests in writing for Dr. Derasari to repair the damages to the property which resulted from automobile accidents in 2018. This should be considered the fourth request for the Landlord to comply with his obligations under the Lease.

It should be pointed out, in this regard, that Dr. Derasari executed the Lease in his individual capacity.

As set forth herein, the record is replete with provably false statements by Dr. Derasari which will be material to any such action, and a jury trial will be requested.

 

 

8. CHRONOLOGY OF DISPUTE

August 4, 2017
EXHIBIT 8
http://rsdfoundation.org/en/exhibits-8-15.htm

In July 2017, Dr. Derasari began an aggressive scheme to coerce Dr. Kirkpatrick to purchase his 50% interest in Building 2.

On August 4, Dr. Kirkpatrick sent an email to Dr. Derasari with copies to the Executive Director and the General Counsel for the Foundation. The email memorializes recent conversations Dr. Kirkpatrick had with Dr. Derasari during their meetings on July 24 and July 26.

From: Anthony Kirkpatrick MD PhD Sent: Friday, August 04, 2017 5:26 PM To: Manjul Derasari Cc: Mary Davis; JERRY TRACHTMAN ESQ (jtrachtman@trachtman- law.com)
Subject: RE: Bureau of Labor Statistics Manny,

During our meeting on July 26, you asked if I was willing to purchase your 50% share of Building #2.

When I told you that I was not prepared to make you an offer, you became visibly upset and accused me of taking advantage of you because I currently store more things in Building #2 than you.

You became very angry with me and declared for the first time in our ten year relationship that you wanted to occupy 50% of the Building. Furthermore, your request seemed strange since you just built a woodshed at your home. A woodshed is defined as the small Building used for storing firewood and other items.

I told you that it was not clear to me if you genuinely needed additional storage space in Building #2 or if you were threatening to move my things around in Building #2 as a ploy to coerce me into making you an offer for the purchase of your 50% share of Building #2.

I’m calling your bluff. If you truly need 50% of the space in Building #2 for storage, I’m confident we can find space for you in Building #2 without threatening my work at the surgery center.

We also had a meeting on or about July 24, 2017. I reminded you that ten years ago you were informed that I would not rent space from  you in Building #1 unless we (together) purchased Building #2. You understood that the Foundation required Building #2 for storage space for the surgery center, even though you did not need extra storage space to operate your business that is essentially a doctor’s office.

Also, you were informed that the purchase of Building #2 would permit the surgery center to control improving the landscape of the entire property. Back then, the property looked more like a cheap strip mall rather than a medical facility. There was a huge “Massage” parlor sign on Busch Blvd. I was informed that one of the lawyers in Building #2 was soliciting prostitutes that entered your parking lot.

You understood at the outset that your financial investment of 50% in Building #2 was your cost of doing business with my not-for-profit surgery center.

The following link shows before and after photos of the landscape improvements made by our surgery center (which increased the value of Building #1 that you own). Note the huge “Massage” parlor signage in the front of the property. Also, note that the parking lot was used as a shortcut to Busch Blvd. As you recall, the parking lot was used as an unofficial “street” through the property:

http://rsdhealthcare.org/Test_sign.htm

At this time, the Foundation would like to keep a good cash reserve since the Foundation is more focused on research and therefore not generating as much money from patient care and treatments.

A Kirkpatrick MD PhD
www.rsdfoundation.org
www.rsdhealthcare.org

 

August 5, 2017
See EXHIBIT 9 at the following link:
http://rsdfoundation.org/en/exhibits-8-15.htm

Dr. Derasari replied the following day to Dr. Kirkpatrick's August 4 email. He did not question the accuracy of Dr. Kirkpatrick's recollection of their conversations that took place during their meetings on July 24 and 26.

Dr. Derasari stated that his primary argument against Dr. Kirkpatrick was the unequal sharing of space in Building 2. Dr. Derasari wrote:

lets [sic] go over 1902 -1904 [Building 2] and Building physically and separate out the 50 % you want to use so rest of 50 % I can occupy.

A careful dissection of the record reveals that Dr. Derasari used his unequal space argument as a strawman. His argument was used to obscure and justify his true motive which was to partition Building 2 in a way that would threaten the Foundation’s work. He believed that his threats would force the Foundation to move next door to Building 2, coercing Dr. Kirkpatrick to purchase his 50% interest in Building 2. Dr. Derasari was at all times fully aware that the Foundation cannot operate without immediate access to Building 2, especially during surgical procedures in Building 1.

Dr. Derasari recognized the importance of immediate access to Building 2. He told Dr. Kirkpatrick that leasing space in Building 2 to a third party would require a “carve-out” of space for the Foundation’s work. Dr. Derasari gave that approval in the form of instructions to Dr. Kirkpatrick to carve out space for the Foundation in Building 2, on September 5, 2013.

Dr. Kirkpatrick repeated to Dr. Derasari, on numerous occasions, that he felt “confident” that he could work with Dr. Derasari to share 50% of the space in Building 2, without threatening the work of  the Foundation. When asked to assure Dr. Kirkpatrick that the 50% partition of Building 2 would not threaten the work of the Foundation, Dr. Derasari repeatedly refused to provide said assurances as to confirm any specific plan for partition of the Building 2 space. The Foundation was guaranteed the use of Building 2 to support its work under the terms of the Lease, and the Professional Agreement.

Dr. Kirkpatrick made a reasonable decision not to purchase Dr. Derasari’s interest in Building 2. Dr. Derasari’s scheme to coerce money from the Foundation through the purchase of his interest in Building 2 became more explicit by the day.

Dr. Derasari’s demand for 50% use of Building 2 was inconsistent with his prior agreement with Dr. Kirkpatrick, as set forth in his email dated February 22, 2013, by which Dr. Derasari informed his CPA and Dr. Kirkpatrick that the Foundation was justified in using more space in Building 2 than Dr. Derasari, because the Foundation unilaterally increased the value of Building 2 by making it conducive to the work of the Foundation. The increased investment of money by the Foundation in Building 2 included many amenities used by Dr. Derasari in Building 2 such as the conference room, exercise room, kitchen, bathroom, exercise room, garden supply room, and tool room.

Notwithstanding the above agreement with Dr. Derasari, Dr. Kirkpatrick compromised and agreed to share 50% of the space in Building 2. Nonetheless, when Dr. Kirkpatrick told Dr. Derasari that he was not prepared to make him an offer to purchase Building 2, he “became visibly upset” and accused Dr. Kirkpatrick of “taking advantage” of him because Dr. Kirkpatrick stored more things in Building 2 than he.

On August 5, 2017, Dr. Derasari disclosed, for the first time, that he was thinking of making a significant change in his practice by moving his practice to another city. Dr. Derasari asked Dr. Kirkpatrick to have 50% of the space in Building 2 available to him immediately, without providing any information about why he suddenly needs 50% of the space in Building 2. Oddly, during the previous ten years, he had plenty of space in Building 2 to store his medical records, equipment, furniture, and his daughter’s personal belongings.

August 29, 2017, at 4:38 PM
See EXHIBIT 10 at the following link:  
http://rsdfoundation.org/en/exhibits-8-15.htm

For the second time, Dr. Kirkpatrick wrote to Dr. Derasari that he was confident that they could work together to share 50% of the space in Building 2 without threatening the work of the Foundation. Again, Dr. Derasari declined Dr. Kirkpatrick’s request to work with him in sharing 50% of the space in Building 2.

Dr. Kirkpatrick reminded Dr. Derasari that his 50% investment in the purchase of Building 2 was the cost of doing business. Dr. Kirkpatrick refused to rent the space in Building 1, and to build a surgery center, unless both parties agreed to purchase Building 2. The purpose of the acquisition was, in part, to provide additional storage space for the surgery center.

Dr. Kirkpatrick noted that Dr. Derasari continued to be visibly angry at Dr. Kirkpatrick because he refused to purchase his 50% interest in Building 2.

Dr. Kirkpatrick suggested to Dr. Derasari that the situation had evolved into a case of buyer’s remorse for Dr. Derasari.

August 29, 2017, at 9:51 PM
See EXHIBIT 11 at the following link:
http://rsdfoundation.org/en/exhibits-8-15.htm

For the third time, Dr. Kirkpatrick wrote again to Dr. Derasari that he  was confident that they could work together to share 50% of the space in Building 2, without threatening the work of the Foundation. Again, Dr. Derasari declined Dr. Kirkpatrick’s request to work with him in sharing 50% of the space in Building 2.

Dr. Kirkpatrick expressed concern that Dr. Derasari used words in his emails that were nonsensical, which made it problematic to move forward in resolving their differences. Dr. Derasari asserted, for example, that he had rights to Building 2 because it is "natural legal."

August 30, 2017
See EXHIBIT 12 at the following link:
http://rsdfoundation.org/en/exhibits-8-15.htm

On August 30, Dr. Derasari documented his intention to obstruct the Foundation’s work by demanding partition of 50% of the space in Building 2. He sent an email to Dr. Kirkpatrick with several demands:

First, he ordered Dr. Kirkpatrick to move his surgical supplies and equipment to the rear of Building 2.

Second, he ordered Dr. Kirkpatrick to enter Building 2 from “rear access” and only for “emergencies.”

Dr. Derasari’s intention to obstruct the Foundation’s work is made clear. The Foundation was guaranteed the use of Building 2 “conducive” to its work under the “USE” terms of the Lease. Also, ordering Dr. Kirkpatrick how to use Building 2 violates the Lease. The LLC executed an Amendment to the Professional Agreement that explicitly placed Dr. Kirkpatrick, not Dr. Derasari, in control as to how Building 2 will be used.

September 14, 2017, at 11:31 AM
See EXHIBIT 15 at the following link:
http://rsdfoundation.org/en/exhibits-8-15.htm

On September 14, Dr. Derasari again complained that Dr. Kirkpatrick was using more than 50% of the space in Building 2, and again declined Dr. Kirkpatrick’s offer to share 50% of the space in Building 2, without threatening the work of the Foundation.

This time, Dr. Derasari made a different threat to the Foundation, telling Dr. Kirkpatrick that he intends to sell his 50% share of the LLC to a third party, without Dr. Kirkpatrick’s approval. Dr. Derasari did not realize that such a transaction would be a direct violation of Florida law governing the operation of an LLC.

September 14, 2017, at 7:51 PM
See EXHIBIT 13 at the following link:
http://rsdfoundation.org/en/exhibits-8-15.htm

For the fourth time, Dr. Kirkpatrick wrote to Dr. Derasari that he was confident that they could work together to share 50% of the space in Building 2 without threatening the work of the Foundation. Again, Dr. Derasari declined Dr. Kirkpatrick’s request to meet and work with him in sharing 50% of the space in Building 2.

Again, he attempted to coerce Dr. Kirkpatrick to purchase his interest in Building 2:

… you can take over and move there [Building2]. I am willing to give you proactive deal in doing that.

Dr. Derasari suggested renting space in Building 2, but Dr. Kirkpatrick asked:

What have you done independently over the past decade to increase the appraised value of Building #2 and to advertise Building #2 for rent?

Dr. Kirkpatrick reminded Dr. Derasari of his failure to take any action on his own to increase the value of the property or to find a renter. Specifically:

  • He had done nothing to seek a renter for unused space in Building 2.

  • He had done nothing to advertise the availability of space in Building 2 for rent.

  • He had done nothing to increase the appraised value of Building 2 as outlined in the Professional Agreement.

  • Dr. Kirkpatrick had assumed the burden and expense to seek a renter for 50% of the space in Building 2.

September 17, 2017
See EXHIBIT 14 at the following link:
http://rsdfoundation.org/en/exhibits-8-15.htm

On September 17, 2017, Dr. Derasari served an unlawful eviction notice to Dr. Kirkpatrick requesting that he vacate Building 1. In the eviction notice, Dr. Kirkpatrick was given no choice but to move the Foundation next door to Building 2, and purchase Dr. Derasari’s 50% interest in the Building. Also, the eviction notice stated that Dr. Derasari would offer Dr. Kirkpatrick a “reasonable price” to purchase his 50% share of Building 2, once he vacates Building 1.

On November 10, 2017, Dr. Kirkpatrick warned Dr. Derasari that the eviction of the surgery center from Building 1 would cause irreparable harm to patients.

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.

See EXHIBIT 3 at the following link:
http://www.rsdfoundation.org/en/Schaaf.htm

Dr. Derasari nonetheless continued to make baseless legal arguments about why he had the right to evict the surgery center. He claimed that the Lease Agreement to Building 1 had never been signed (which was clearly false) and that the lease agreement had never been witnessed (which is provided him with no defense to the lease, under the circumstances, and after 10 years of operation). Dr. Derasari’s statements showed his willingness to harm patients if necessary to extract money from Dr. Kirkpatrick, by forcing him to purchase his interest in Building 2, despite the known likelihood of harm and the primary direction of the Hippocratic Oath, which is “first, do no harm."

As a result of these and ensuing communications, Dr. Kirkpatrick had no choice but to retain the legal counsel of Gary Schaaf, Esq., to determine his legal options.

December 17, 2018
See EXHIBIT 1 at the following link:
http://rsdfoundation.org/en/drichards.htm

Dr. Derasari obtained an additional attorney, Darryl Richards, who threatened to take Court action to dissolve the LLC, which would force the Foundation to purchase Dr. Derasari’s 50% interest in Building 2.

The Lease, under the “USE” provisions, bars judicial dissolution of the LLC by Dr. Derasari, in that the Foundation was guaranteed such use of Building 2 as would be “conducive” to its work. The Professional Agreement, which, along with its 2012 Amendment, was incorporated into the Lease, clearly contemplated, in Section 6, that, in the event that Dr. Derasari couldn’t continue to practice or opted to move his practice from the property, Dr. Kirkpatrick would be able to continue his practice on the property, and the Foundation would be able to continue its work on the property, during the term of the Lease and beyond. While the Professional Agreement, in Resolution #13, gave Dr. Kirkpatrick a right of first refusal, in the event that Dr. Derasari sought to sell his interest in Building 2, Dr. Kirkpatrick’s decision not to exercise such right in no way affects the Foundation’s rights as a tenant under the Lease, and as a third-party beneficiary under the Professional Agreement.

While Dr. Derasari moved his practice and is looking for a way to get Building 2 off his balance sheet, Dr. Derasari’s self-imposed business considerations can in no way alter the terms of the agreements into which he, Dr. Kirkpatrick, and the Foundation have entered.

Beginning on  August 5,  2017,  and  numerous  times  after that, Dr.  Derasari affirmed that Dr. Kirkpatrick had a right to use at least 50% of the space in Building 2. Dr. Derasari also informed his CPA that Dr. Kirkpatrick was justified in using more space in Building 2 than he was, because only the Foundation spent money to renovate Building 2 and to increase its value. Also, as set forth above, the Professional Agreement is a document that Dr. Derasari and his attorney have referenced as binding on both parties during the current dispute.

Dr. Kirkpatrick continues to hold a license to operate the surgery center on behalf of the Foundation. Access to 50% of the space in Building 2 is essential to the operation of the Foundation and for having the surgery center approved for surgical procedures each year by the Florida Board of Medicine.

On  November  21,  2018,  Mr.  Schaaf  responded  to  Dr.  Derasari’s  threat  to dissolve the LLC.

See EXHIBIT 12 at the following link:
http://rsdfoundation.org/en/Schaaf.htm

First, please explain the basis for your contention that Dr. Derasari has grounds to dissolve Manjul and Anthony, LLC (the “LLC”), and  to force the sale of 1902 -1904 E. Busch Boulevard. Section 605.0702, Florida Statutes, provides five ways in which an LLC member may establish grounds for judicial dissolution:

 

  • The conduct of all or substantially all of the company’s activities is unlawful;
  • It is not reasonably practicable to carry on the business of the LLC in conformity with its articles or operating agreement;
  • The controlling managers or members have acted illegally or fraudulently;
  • The company’s assets are being misappropriated or wasted, causing injury to the company or to one or more if its members; or
  • The managers or members are deadlocked, and irreparable injury to the company is being threatened or suffered.

 

While it appears that you are referring to the deadlock provision, I am interested to know whether you intend that any of the other provisions apply. I do not believe the deadlock provision, which requires both deadlock and a threatened or suffered irreparable injury to the company, would apply where, as here, one stated purpose of the LLC is to provide Dr. Kirkpatrick with the additional space he needs to operate his practice and to carry out the Foundation’s mission.

 

Secondly, since (1) Dr. Derasari has acted to conceal critical documents material to this case, including the Lease itself, from your co-counsel, Alan Gassman Esq., and (2) since Mr. Gassman joined with Dr. Derasari in falsely accusing Dr. Kirkpatrick of violating the “law” with regard to his activities in Building #2, we need assurances that your client intends to negotiate in good faith, going forward.

Mr. Richards replied:

See EXHIBIT 2 at the following link:
http://www.rsdfoundation.org/en/drichards.htm

Clearly, there is a deadlock among the managers of Manjul and Anthony. That deadlock is causing irreparable injury to Manjul and Anthony, because the parties cannot agree on the operation of the entity or the maintenance of Manjul and Anthony's property. You, in fact, state that there apparently is an ongoing mold problem that Dr. Kirkpatrick is aware of but has not addressed with regard to the Manjul and Anthony property. Because of the ongoing mold, it will be difficult to calculate the losses caused by the ongoing increase in mold infestation that continues during the deadlock. That is irreparable harm. Your client does not have the right to require Dr. Derasari or Manjul and Anthony to continue ownership of the property for the benefit of Dr. Kirkpatrick. There are, therefore, multiple reasons for a judicial dissolution of Manjul and Anthony.

The attached documentation, however, contradicts Dr. Derasari’s position that Dr. Kirkpatrick “has not addressed” the mold problem. The opposite is true. Only Dr. Kirkpatrick, not Dr. Derasari, has addressed and continues to address the mold issue in Building 2 on behalf of the LLC. In contrast, Dr. Derasari refuses to address the mold in Building 2 by refusing to allow the LLC to replace an HVAC unit in Building 2 which no longer operates. Dr. Derasari demands that Dr. Kirkpatrick agree to place Building 2 on the market for sale before he permits Dr. Kirkpatrick to address the mold problem, using LLC money.

On December 26, 2018, Mr. Richards wrote:

See EXHIBIT 3 at the following link:
http://www.rsdfoundation.org/en/drichards.htm

I made very clear that we have a deadlock and want the property placed for sale as soon as possible. Once I receive your client’s position on the sale, I will respond to your inquiry about the HVAC replacement. As a 50% owner, your client does not have the authority to approve the expenditure of LLC money to replace the HVAC. If the replacement is needed to sell the property and your client is willing to place the property for sale and have it sold, that certainly would affect my client’s position on spending additional money on the property.

 

 

9. NONCOMPLIANCE WITH LEASE AGREEMENT BY DR. DERASARI

On, November 21, 2018, Gary Schaaf, Esq., sent the following request to Darryl Richards, Esq., noting that Dr. Derasari was refusing to comply with the Foundation’s Lease:

Under Subparagraph 7 of the Lease, we request that the Lessor immediately repair the unsightly damaged poles, a photograph of which is attached for your review. Further, in this regard, while Dr. Kirkpatrick made two previous requests in writing for the Lessor to complete the painting of the front entrance wall, which is required as a result of an auto accident which occurred several months ago, the painting has not yet been completed. A photograph of the damaged poles is attached for your review.

 

See EXHIBIT 12 at the following link:
http://rsdfoundation.org/en/Schaaf.htm

To date, Dr. Derasari has refused to comply with his obligations under the Lease, to repair the property.

 

 

10. FALSE STATEMENTS BY DR. DERASARI

December 13, 2017

Dr. Derasari falsely stated to his attorney, Alan Gassman, Esq., that the Lease Agreement for Building 1 was never signed:

On December 13, 2017, Mr. Gassman wrote:

When he came to see me after the eviction letter was sent he only brought and knew of the unsigned copy [of the Lease Agreement] that had been sent out with the letter from Mr. Wilkes that is attached. (Emphasis added).

See EXHIBIT 2 at the following link:
http://rsdfoundation.org/en/agassman.htm

Dr. Derasari’s statement that he “only knew” of an unsigned copy of the Lease Agreement is false, and he knew it was false. This false statement by Dr. Derasari was used to mislead his attorney and others intentionally. Mr. Gassman used Dr. Derasari’s provably false statement to justify his attempted eviction of Dr. Kirkpatrick and the Foundation from Building 1. What is more, there is clear and convincing   evidence that   Dr.   Derasari   lied   to   his   attorney.   A lie is a statement that is known to be untrue and is used to mislead.

Dr. Derasari lied:

First,  on  two  separate  occasions,  Dr.  Kirkpatrick  received  emails  from  Dr. Derasari stating that he had a “signed” copy of the Lease Agreement.
http://rsdfoundation.org/en/lease-signed.htm

Second, contrary to  Dr.  Derasari’s  contention  that  he  knew only about  the unsigned Lease Agreement, Dr. Kirkpatrick forwarded copies of the signature pages of the Lease Agreement to Dr. Derasari on at least two separate occasions. On May 13, 2013, Dr. Derasari acknowledged by email that he had “read” the signed lease agreement.

http://rsdfoundation.org/en/signature.htm

Third, Dr. Derasari was aware that an unsigned copy of the Lease Agreement had been posted on the Internet with a link to the signed pages. On three separate occasions, Dr. Kirkpatrick’s attorney, Gary Schaaf, Esq., demanded that Mr. Gassman send a copy of the unsigned copy of the Lease Agreement. After the third request, a scan of the fax copy of the unsigned Lease Agreement with a link to the signed pages was provided. The scan reflected, at the bottom, that it had been faxed by Dr. Derasari to Mr. Gassman’s attorney office, on October 13, 2017, meaning that both Dr. Derasari and his attorney had the Lease over two weeks before the date of Mr. Schaaf’s first conversation, and during the period of Mr. Schaaf’s numerous requests for the copy.

Mr. Schaaf wrote:

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.

See EXHIBIT 7 at the following link:
http://rsdfoundation.org/en/Schaaf.htm

 

November 13, 2018

Alan Gassman, Esq., joined his client in accusing Dr. Kirkpatrick of violating the "law" by allowing an employee of the Foundation to stay overnight once or twice a year, for a period of one or two weeks, in Building #2.

Mr. Schaaf wrote to Mr. Gassman asking for a specific violation of law, including any relevant zoning law or ordinance, to support a violation of the law by Dr. Kirkpatrick. Neither Dr. Derasari nor his attorney ever provided a citation or defense.

See EXHIBIT 11 at the following link:
http://rsdfoundation.org/en/Schaaf.htm

It is absurd that Dr. Derasari should accuse Dr. Kirkpatrick of violating the law in his use of Building 2, when Dr. Derasari sent an email noting that it was "OK" for a Foundation employee stay overnight in Building #2, and also approved the use of a microwave oven in Building #2 by the employee.

http://rsdfoundation.org/en/gassman-11-13-18.htm

Predictably, no apology was ever forthcoming from Dr. Derasari or his attorney for falsely accusing Dr. Kirkpatrick of violating the law. Nor has there been an apology from Dr. Derasari for falsely suggesting that Dr. Kirkpatrick was using Building 2, in any way contrary to his wishes.

November 16, 2018

Dr. Derasari also caused his new attorney, Darryl Richards, Esq., to make a provably false and misleading statement.

On November 16, 2018, Mr. Richards wrote:

In your letter you also reference 1902-1904 E. Busch Boulevard (“the Property”) that is the sole asset of Manjul and Anthony, LLC (“MA LLC”) ... You state that the parties never contemplated that the Property would be income producing. That is not true. The parties attempted to lease the space and continue to do so.

See EXHIBIT 1 at the following link:
http://www.rsdfoundation.org/en/drichards.htm

The purpose of forming the LLC is discussed in detail above. The Professional Agreement did not contemplate that Building 2 would become a profit-making business. The building was expected to serve to help in the Foundation’s work, and the medical practices were expected to benefit as well, since the money spent by the Foundation in improving the property would “add value to the location” as outlined in detail in the Professional Agreement ratified by Dr. Derasari and the Foundation.

The LLC was formed pursuant to the Professional Agreement which was prepared by Richard Wilkes, Esq., and initialed, supplemented in handwritten notes, and ratified by Dr. Derasari, Dr. Kirkpatrick, and the Foundation. Dr. Derasari could not have reasonably expected that an LLC created to purchase a building, primarily to benefit the Foundation, as a 501(c)(3) nonprofit organization, would be a profit-making entity.

After Dr. Kirkpatrick built the surgery center in Building 1, it became apparent that he needed only about half the space in Building 2 for his practice, as set forth above, Dr. Derasari conceded in numerous emails that Dr. Kirkpatrick had the right to use at least 50% of the space in Building 2 for his practice, the Foundation, not Dr. Derasari, paid to advertise the availability of space for rent by a “professional” in Building 2.

Moreover, Dr. Derasari made it difficult for Dr. Kirkpatrick to carry out negotiations in good faith for potential renters, and, over time, seemed to become less interested in renting any portion of the available space in Building 2.

On December 17, 2018, Mr. Richards further asserted that the LLC was intended to become a for-profit “business”:

Dr. Derasari has multiple grounds on which to seek a judicial dissolution of Manjul and Anthony if the parties cannot reach an amicable resolution. First, it is not reasonably practicable to carry on the business of Manjul and Anthony in conformity with its articles. Your client and mine have opposed positions with regard to the property and its operations.

 

See EXHIBIT 2 at the following link:
http://www.rsdfoundation.org/en/drichards.htm

The Professional Agreement, as set forth above, shows that the LLC was not intended to be a profit-making entity.

Mr. Richards claims that Dr. Derasari was motivated to make a profit for the LLC when, in fact, his motive was to enable himself to rent out a portion of Building 1, through the purchase of Building 2.

Dr. Derasari received an email from Dr. Kirkpatrick that states one of Dr. Derasari’s financial motives for the acquisition of Building 2:

We also had a meeting on or about July 24, 2017. I reminded you that ten years ago you were informed that I would not rent space from you in Building #1 unless we (together) purchased Building #2. You understood that the Foundation required Building #2 for storage space for the surgery center, even though you did not need extra storage space to operate your business that is essentially a doctor’s office. (Emphasis added)

 

See EXHIBIT 8 at the following link:
http://rsdfoundation.org/en/exhibits-8-15.htm

The following day (August 5, 2017), Dr. Derasari replied, without questioning Dr. Kirkpatrick’s description of his financial motive behind the acquisition of Building 2.

Also, the acquisition of Building 2 made sense for Dr. Derasari, as it made it possible for him to profit financially in other ways:

    • By earning generous pay from the employment by the Foundation’s surgery center to support his practice.
    • By the Foundation providing Dr. Derasari’s practice with numerous free amenities, equipment, and supplies.
    • By having the Foundation unilaterally increase the value of Building 1 of which he has 100% ownership as well as the value of Building 2 where he has 50% ownership.
    • By receiving a loan from the Foundation which did not require Dr. Derasari to pay interest on the loan.
    • By not paying state taxes on rent paid by the Foundation due to its not-for- profit status.

See EXHIBIT 9 at the following link:
http://rsdfoundation.org/en/exhibits-8-15.htm

In his email, dated September 14, 2017, Dr. Derasari documented how he solely profited, from a monetary standpoint, in the acquisition of Building #2. Although both parties “equally” invested in the purchase of Building 2, only Dr. Kirkpatrick “voluntarily invested in improving” the value of Building 2.

See EXHIBIT 15 at the following link:
http://rsdfoundation.org/en/exhibits-8-15.htm

Dr. Kirkpatrick brought financial security to Dr. Derasari’s practice and property. The LLC was formed in 2007, with Dr. Derasari having full knowledge that Dr. Kirkpatrick intended to invest $300,000 in the property from his savings.

See EXHIBIT 16 at the following link:
http://rsdfoundation.org/en/exhibits-8-15.htm

The financial risk to Dr. Derasari for teaming up with Dr. Kirkpatrick in 2007 was minimal. In contrast, the risk for Dr. Kirkpatrick losing up to $300,000 in his savings was enormous. Dr. Kirkpatrick planned to continue his research by building an expensive licensed surgery center. Proceeds to the nonprofit Foundation would have to come from the care and treatment of patients. Dr. Kirkpatrick knew that it would be impossible to obtain sufficient income to support the surgery center's research from patient care by reimbursement from insurance companies only in the United States. Care would have to be provided to the nonprofit Foundation on a cash basis. As such, Dr. Kirkpatrick had to depend on his international reputation in the field of complex regional pain syndrome to attract enough cash-paying patients from around the world to support the operation of his surgery center and research.

The Foundation had no cash reserve to repay Dr. Kirkpatrick should his ambition to build a nonprofit surgery center have failed.

November 16, 2018

Dr.   Derasari  further    caused  Mr.   Richards  to   make  another provably false accusation against Dr. Kirkpatrick.

On November 16, 2018, Mr. Richards wrote:

You contend that Dr. Derasari has failed to maintain the Foundation’s heating, ventilation and air conditioning unit in good condition. That is not true. Northside Services inspected the HVAC system for 1910 and determined it was working within specifications. After its recent inspection, Northside Services did not recommend any additional action for the HVAC system that services 1910.

See EXHIBIT 1 at the following link:
http://www.rsdfoundation.org/en/drichards.htm

The foregoing statements are reckless and endanger the health of Kirkpatrick’s employees and patients. On October 22, 2018, Dr. Derasari was warned that his failure to maintain the Foundation’s heating, ventilation, and air conditioning unit (“HVAC”) in good condition had placed Dr. Kirkpatrick’s employees and patients at the surgery center "at risk of irreparable harm and injury." Dr. Derasari was also notified that "Northside Services states that the HVAC unit for the Foundation in Building #1 is in terrible shape because it has not had routine maintenance since it was installed in 2014."

See EXHIBIT 10 at the following link:
http://rsdfoundation.org/en/Schaaf.htm

As a result of these false statements, Dr. Kirkpatrick requested a second inspection by Northside Services of the Foundation’s HVAC unit. Dr. Kirkpatrick took valuable time from the operating room to witness the inspection. See photographs of the inspection and the report from the inspection at the following website.

http://rsdresearch.org/kirkpatrick/Unit5.htm

After the inspection, Northside Services concluded:

Condensate drain is clogged and needs to be cleared... These problems can easily be resolved with routine maintenance. I recommend that a commercial system be maintained twice per year (every six months) to prolong system longevity and prevent premature breakdowns.

http://rsdresearch.org/kirkpatrick/unit5_report.htm

The technician concluded that the Foundation’s HVAC unit has not been maintained in good condition and recommended the unit “be maintained twice per year (every six months) to prolong system longevity and prevent premature breakdowns.”

Dr. Kirkpatrick requested that Northside Services conduct a return visit for maintenance of the unit as soon as possible.

After the maintenance work was completed, Northside Services wrote:

Evap condensate pan and drain line were completely clogged and  full of algae. Removed blower door and the inside of the cabinet had approximately 1 inch of algae inside. Removed all algae from undesirable locations and cleared drain pan and flushed drain line so that it could drain as intended. (Emphasis added)

http://rsdresearch.org/kirkpatrick/unit5_maintenance.htm

We expect that Dr. Derasari will comply with his obligation as a physician as well as a landlord, under Section 7 of the Lease, and make sure that the HVAC system is well-maintained and routinely serviced as recommended by Northside Services.

Invoices for the inspection as well as the return visit for maintenance are as follows:

  • Inspection on December 3, 2018, cost the Foundation $89.
http://rsdresearch.org/kirkpatrick/unit5_report.htm
  • Maintenance tune-up visit on December 12, 2018, cost the Foundation $114.
http://rsdresearch.org/kirkpatrick/unit5_maintenance.htm

 

November 16, 2018

The following false statements must be addressed:

On November 16, 2018, Mr. Richards wrote:

Dr. Derasari did not threaten to evict… Dr. Kirkpatrick.

See EXHIBIT 1 at the following link:
http://www.rsdfoundation.org/en/drichards.htm

Dr. Derasari threatened to evict the Foundation when he sent the following “Notice” to Dr. Kirkpatrick on September 17, 2017:

From: Manjul Derasari < manjulderasari@gmail.com>
Date: September 17, 2017 at 6:29:17 PM EDT

To: Anthony Kirkpatrick MD Ph.D. < akirkpat@tampabay.rr.com>,

Anthony Kirkpatrick MD Ph.D. < akirkpat@rsdfoundation.org>

Subject: Notice Dear Dr. Kirkpatrick,

Here by I am giving advance notice of more than 90 days to you that you should move out of rental premise at 1910 East Busch Boulevard, Tampa, Florida 33612 by January 1, 2018.

I am aware of your important clinical work, and I will co-operate with you to fecilitate [sic] your relocation to 1902 -1904 East Busch Boulevard premises, which is right next to your current premise

 

November 16, 2018

On November 16, 2018, Mr. Richards wrote:

Dr. Kirkpatrick constructed a Koi pond and other amenities that Dr. Derasari did not want and which increased the CAM expenses.

See EXHIBIT 1 at the following link:
http://www.rsdfoundation.org/en/drichards.htm

On September 4, 2013, Dr. Derasari contradicted the above accusation.     He wrote:

In addition, the Foundation pays to maintain the garden in the old drainage pond area and the Koi pond.

http://rsdfoundation.org/en/exhibit-9-2-13.htm

See above for a list of the numerous amenities that Dr. Kirkpatrick provided for free to Dr. Derasari and his employees.

Also, Dr. Derasari is cashing in on all the amenities as well as property improvements paid for entirely by the Foundation. He called these additions to the property a “million dollar” make-over and features them with photos in an ad to attract a renter to his side of Building 1.

Spending money “to add value to the location” was an objective outlined in detail in the Professional Agreement signed by Dr. Kirkpatrick on behalf of the Foundation and by Dr. Derasari.

November 16, 2018

On November 16, 2018, Mr. Richards wrote:

Dr. Derasari does not require a surgery center license for his practice.

See EXHIBIT 1 at the following link:
http://www.rsdfoundation.org/en/drichards.htm

The statement is false.

Dr. Derasari was employed by the Foundation to work in the operating room in Building 1. The surgery center had to be inspected and licensed by the Florida Board of Medicine. Without renewal of the license each year, Dr. Derasari could not legally work in the operating room making $1,200 per hour to support his practice.

Mr. Richard’s argued, in part, that it was unreasonable for Dr. Derasari to pay 50% of the annual license or $750 because his practice in Building 1 does not require a surgery center license, which is false.

December 17, 2018

On December 17, 2018, Mr. Richards wrote:

You, in fact, state that there apparently is an ongoing mold problem that Dr. Kirkpatrick is aware of but has not addressed with regard to the Manjul and Anthony property.

See EXHIBIT 2 at the following link:
http://www.rsdfoundation.org/en/drichards.htm

The statement is false and misleading.

The opposite is true. Only Dr. Kirkpatrick, not Dr. Derasari, has addressed and continues to address the mold issue in Building 2 on behalf of the LLC.

For example:

    • Dr. Kirkpatrick, not Dr. Derasari, monitored Building 2 for mold infestation. On May 9, 2013, Dr. Kirkpatrick sent an email to Dr. Derasari with the subject heading, “Building #2 and mold infestation.” He reminded Dr. Derasari that nothing had been done about 2 of 3 HVAC units in Building 2 (i.e., 1904) that were permanently out of order. Dr. Kirkpatrick insisted  that the LLC needed to do something about it. Northside Services reported that Building 2 had too much humidity due to inadequate cooling during  the summer which was contributing to the growth of mold.
http://rsdfoundation.org/en/mold.htm
    • Several areas in the room located in the northeast corner of 1904 showed water intrusion and damage to the wall covering. The Foundation (not the LLC) paid to repair the leak, remove the wall covering and paint the walls to mitigate the spread of mold in the room.
    • Dr. Kirkpatrick (not Dr. Derasari) complied with Northside’s recommendation to maintain Building 2 at 79 degrees Fahrenheit during the summer.

    • Northside Services recently inspected the HVAC units in Building 2 and concluded that one of the units needed to be replaced. Dr. Kirkpatrick deposited in the LLC checking account 50% of the cost to replace the HVAC unit in Building 2. Dr. Derasari refused to allow the LLC to pay the other 50% share of the cost to replace the unit. Dr. Derasari is willing to accept mold infestation in Building 2, but Dr. Kirkpatrick, is not.

December 17, 2018

On December 17, 2018, Mr. Richards wrote:

I know that you contend that the purpose of Manjul and Anthony was to solely benefit Dr. Kirkpatrick's practice, but that is not true. Back  in 2007, there is a letter from Mr. Wilkes which states that your client and Dr. Derasari would acquire the law building on a 50-50 basis to obtain control over the parcel which would enable them to create an overall atmosphere for the property that would be conducive to their practices and to the work of the foundation. Nothing in the letter suggests that Dr. Kirkpatrick had the right to use the property without paying for it. Nothing in that letter provided that the property was  only to be used for purposes of Dr. Kirkpatrick's practice. In fact, it says that it would be used in the manner best conducive to both practices.

See EXHIBIT 2 at the following link:
http://www.rsdfoundation.org/en/drichards.htm

The statement is false and misleading.

In late 2012, Dr. Derasari wanted to pay off the loan to the bank for the purchase of Building 2. The Foundation’s share of the cost to pay off the mortgage was approximately $140,000. Paying off the mortgage for Building 2 with $140,000 in cash from the Foundation would place it in significant financial stress. At the same time, Dr. Derasari requested that the Foundation grant him an interest-free loan to help him pay off his $140,000 share of the mortgage. On February 22, 2013, Dr. Derasari wrote to Dr. Kirkpatrick:

I do APPRECIATE advance rent. It has helped me to PAY OFF my part of LLC mortgage (Building 2), which was 7.5% interest on $320,000, Manjul & Anthony LLC was losing in mortgage every month.

I was that SERIOUS in paying off. Again I appreciate Dr. K agreed.

 http://rsdfoundation.org/en/exhibit-2-22-23.htm

The Foundation would not agree to the payoff of the mortgage on Building 2 unless Dr. Derasari committed to creating an accurate record regarding the formation of the LLC, in 2007.   As such, on December 13, 2012, the LLC executed an Amendment to the Professional Agreement that clarified that the purpose for the LLC’s acquisition of building 2 was to benefit the Foundation, and thereby placed Dr. Kirkpatrick, not Dr. Derasari, in primary control of how Building 2 would be used. Dr. Derasari documented that the LLC purchased Building 2, on a 50/50 basis for the primary purpose of supporting Dr. Kirkpatrick’s practice and the work of the Foundation. The following statement in the original Professional Agreement was revised:

You and Dr. Derasari will acquire the law building on a 50/50 basis; the purpose of this acquisition is to obtain control over the entire parcel which will enable you to create the overall atmosphere for the property that you believe will be best conducive to your practices and to the work of the Foundation; and will add value to the location.

The phrase, “You and Dr. Derasari will acquire the law building on a 50/50 basis; the purpose of this acquisition is …” in the above statement was deleted and replaced with, “In 2007, Dr. Anthony Kirkpatrick and Dr. Manjul Derasari formed an LLC for the operation of building #2…”

The word “you” in the above statement was deleted twice and replaced with “Dr. Kirkpatrick.” The word “best” was replaced with “most.” The word “your” was deleted and replaced with “Dr. Kirkpatrick’s.”

The 2012 Amendment:

AGREEMENT 12/13/2012

In 2007, Dr. Anthony Kirkpatrick and Dr. Manjul Derasari formed an LLC for the operation of building #2 to obtain control over the entire parcel which will enable Dr. Kirkpatrick to create an overall atmosphere for the property that will be most conducive to Dr. Kirkpatrick's practices and to the work for The International Research Foundation for RSD / CRPS (Foundation).

A copy of the 2012 Amendment is available under References, on the final page of this document.

As set forth above, Dr. Derasari did not need Building 2 to support his practice, but he needed and benefited from the Foundation’s investment in the property. If he did not join Dr. Kirkpatrick in the 50/50 purchase of Building 2 in 2007, he would have lost the Foundation as a tenant for the space in Building 1 that had then been on the market for two years, and forfeit the opportunity to increase the value of his property with the investment of $300,000 from Dr. Kirkpatrick’s savings.

The Foundation’s investment in the property clearly increased the value of Dr. Derasari’s 50% investment in the purchase of Building 2, as well as his ownership interest in Building 1, as he acknowledged in stating that the Foundation’s “million dollar makeover” of the property benefited him professionally and personally.

http://rsdfoundation.org/en/exhibit-2-22-23.htm

Dr. Derasari further benefited from the Foundation’s upfront rent payment of $140,000 to pay off the mortgage for Building 2, as he requested, and the Foundation provided him with an interest-free loan of approximately $23,000.

11. IN SEARCH OF A SOLUTION

As a potential solution to the current dispute between Dr. Kirkpatrick and the Foundation, on one side, and Dr. Derasari, on the other, Dr. Kirkpatrick and the Foundation would be willing to consider a resolution through which the Foundation, or an affiliated entity, could assume ownership of Building 1, and Dr. Derasari could assume ownership of Building 2, so long as any such settlement would address, among other things (1) reasonable and necessary monetary adjustments, to compensate Dr. Kirkpatrick and the Foundation for amounts already contributed to the property, and for costs to be incurred in reproducing, in Building 1, improvements already constructed in Building 2; and (2) future uses of the property, as a whole, including potential deed restrictions designed to limit the use of the property, for at least a reasonable time, to professional offices.

12. REFERENCES

Professional Agreement

Amendment to Professional Agreement 12/13/2012

Lease Agreement (Signed Pages)

Lease Agreement (Electronic Version)

Gary Schaaf, Esq., Letters

Alan Gassman, Esq., Letters

Darryl Richards, Esq., Letters

Dr. Manjul Derasari: Correspondence/Emails

Complaint filed by Dr. Derasari 3/11/2019

Acceptance of Service of Complaint 3/15/2019

 

 

AK File: akirkpatrick-43

GS File: kirkpatrick-derasari-clean-story

 

ACTIVE: K25110/386111:12095817_1