STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION FLORIDA DEPARTMENT OF BUSINESS . ’ AND PROFESSIONAL REGULATION, 10-1919 DIVISION OF REAL ESTATE, Petitioner, Vv. DBPR Case NO. 2009043158 2009043160 ATHAN C. PRAKAS AND PRAKAS GROUP INC., Respondents. / ADMINISTRATIVE COMPLAINT State of Florida, Department of Business and Professional Regulation, Division of Real Estate (“Petitioner”) files this Administrative Complaint against Atyhan C. Prakas and Prakas Group Inc. (“Respondents”) and alleges: ESSENTIAL ALLEGATIONS OF MATERIAL FACT _1. Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165 and Chapters 120, 455 and 475, of the Florida Statutes and the rules promulgated pursuant thereto. 2. Respondent Athan C. Prakas is and was at all times Material hereto a licensed Florida real estate broker, issued H:\ac\prakas.doc FDBPR v. Athan C. Prakas Case No. 2009043158 Administrative Complaint : license number 3077048 in accordance with Chapter 475 of the Florida Statutes. The last license issued was as an active broker at Boca Brokers Inc., 4700 NW Boca Raton Blvd. #301, Boca Raton, Florida 33431. 3. Respondent Prakas Group Inc., is and was at all times material hereto a corporation registered as a Florida real estate broker having been issued license number 1010758 in accordance with Chapter 475 of the Florida Statutes. The last license issued was at the address of 4700 NW Boca Raton Blvd. #301, Boca Raton, Florida 33431. 4. At all times material hereto, Respondent Athan C. Prakas was licensed and operating as qualifying broker and officer of Respondent Prakas Group Inc. 5. At all times material in the Circuit Court Fifteenth Judicial Circuit, in and for Palm Beach County Florida, Respondent filed a civil suit against Doug Ashman, Grazyna Wnuk Ashman, McDougall’s Inc., and W-K Investments, Inc., (Defendants) for a real estate commission due on a real estate transaction; whereas the Court entered a Final Judgment in favor of Defendants. A copy of the Final Judgment is attached hereto and incorporated herein as Administrative Complaint Exhibit 1. 6. On or about October 10, 2007 in the Circuit Court H:\ac\prakas.doc 2 FDBPR v. Athan C. Prakas Case No. 2009043158 Administrative Complaint Fifteenth Judicial Circuit, in and for Palm Beach County Florida Respondents were sued by Defendants (hereafter referred to as Plaintiffs) for malicious prosecution for the previous suit by Respondents claiming a commission owed for a real estate transaction. A copy of the complaint is attached hereto and incorporated herein as Administrative Complaint Exhibit 2. 7. On or about August 8, 2008, in the Circuit Court Fifteenth Judicial Circuit, in and for Palm Beach County Florida, the Court entered a Final Judgment in favor of Plaintiffs and against Respondents for $90,000 plus interest. A copy of the final judgment is attached hereto and incorporated herein as Administrative Complaint Exhibit 3. 8. Respondents have failed to account and deliver to Plaintiffs money for a civil judgment entered by a court against Respondents related to the practice of the licensees’ profession within a reasonable time. COUNT ONE Based upon the foregoing, Respondent Athan C. Prakas is guilty of failure to account or deliver funds to another licensee based on a civil judgment relating to the practice of the licensee’s profession obtained by said licensee, which Respondent has not satisfied in accordance with the terms of the judgment within a H.\ac\prakas.doc 3 FDBPR v. Athan C. Prakas Case No. 2009043158 Administrative Complaint reasonable time in violation of Section 475.25(1)(d)1., Florida Statutes. COUNT TWO Based upon the foregoing, Respondent Prakas Group Inc. is guilty of failure to account or deliver funds to another licensee based on a civil judgment relating to the practice of the licensee's profession obtained by said licensee, which Respondent has not satisfied in accordance with the terms of the judgment within a reasonable in violation of Section 475.25(1) (da)1., Florida Statutes. WHEREFORE, Petitioner respectfully requests the Florida Real Estate Commission, or the Department of Business and Professional Regulation, as may be appropriate, to issue a Final Order as final agency action finding the Respondent(s) guilty as charged. The penalties which may be imposed for violation(s) of Chapter 475 of the Florida Statutes, depending upon the severity of the offense(s), include: revocation of the license or registration or permit; suspension of the license, registration or permit for a period not to exceed ten (10) years, imposition of an administrative fine of up to $5,000 for each count or offense; imposition of investigative costs; issuance of a reprimand; imposition of probation subject to terms including, but not limited H:\ac\prakas,doc 4 FDBPR v. Athan C. Prakas Case No. 2009043158 Administrative Complaint to, requiring the licensee, registrant or permittee to complete and pass additional real estate education courses; publication; or any combination of the foregoing which may apply. See Section 475.25(1), Florida Statutes and Florida Administrative Code Rule 6102-24.001. The penalties which may be imposed for violation(s) of Chapter 455 of the Florida Statutes, depending upon the severity of the offense(s), include: revocation of the license, registration, or permit; suspension of the license, registration, or permit for a period not to exceed ten (10) years; imposition of an administrative fine of up to $5,000 for each count or offense; imposition of investigative costs; issuance of a reprimand; imposition of probation subject to terms including, but not limited to, requiring the licensee, registrant, or permittee to complete and pass additional real estate education courses; publication; restriction of practice; injunctive or mandamus relief; imposition of a cease and desist notice; or any combination of the foregoing which may apply. See Section 455.227, Florida Statutes and Florida Administrative Code Rule 61J2-24.001. Hi\ac\prakas.doc 5 FDBPR v. Athan C. Prakas Case No. 2009043158 Administrative Complaint SIGNED this @? day of Jan) , 2010. CHARLIE LIEM, Interim Secretary Business and Joséph A. Sdlla III Assistant General Counsel la. Bar No. 287288 Department of Business and Professional Regulation Division of Real Estate Legal Section 400 W. Robinson Street, N801 Orlando, Florida 32801-1757 (407) 481-5632 - Telephone (407) 317-7260 - Facsimile PCP Date: 1/21/10 PCP MEMBERS: JDR/HF H:\ac\prakas.doc FDBPR v. Athan C. Prakas Case No. 2009043158 Administrative Complaint NOTICE TO RESPONDENTS PLEASE BE ADVISED that mediation under Section 120.573 of the Florida Statutes, is not available for administrative disputes involving this type of agency action. PLEASE BE FURTHER ADVISED that pursuant to this Administrative Complaint you may request, within the time allowed by law, a hearing to be conducted in this matter in accordance with Sections 120.569 and 120.57 of the Florida Statutes; that you have the right, at your option and expense, to be represented by counsel or other qualified representative in this matter; and that you have the right, at your option and expense, to take testimony, to call and cross-examine witnesses, and to have subpoena and subpoena duces tecum issued on your behalf if a formal hearing is requested. PLEASE BE FURTHER ADVISED that if you do not file an Election of Rights form or some other responsive pleading with the Petitioner within twenty-one (21) days of receipt of this Administrative Complaint, the Petitioner will file with the Florida Real Estate Commission a motion requesting an informal hearing and entry of an appropriate Final Order which may result in the suspension or revocation of your real estate license or registration. Please see the enclosed Explanation of Rights and Election of Rights form. Hi\ac\prakas.doc 7 IN THe TTR IIT CU TE FIFTEENTH JUDICIAL CIRCULL OS LUKLDA, IN AND FOR PALM BEACH COUNTY, FLORIDA THE PRAKAS GROUP, INC., a Florida Corporation, ‘Plaintiff, an . VS. : Case No. 50 2004 CA 004621 XXXX MB AE DOUG ASHMAN, an individual, - GRAZYNA WNUK ASHMAN, an individual, McDOUGALL'S INC., a Florida Corporation, and W-K INVESTMENTS, INC., ; Defendants. FINAL JUDGMENT ‘ For DEFENDANTS ; THIS CAUSE came before the Court for Nonjury trial. The Court having considered the testimony of the witnesses and having observed their demeanor and behavior and assessed their - credibility; having reviewed and considered the exhibits admitted into evidence; having considered arguments of counsel and having reviewed the file and the law and being duly apprised, itis hereby Adjudged, Ordered and Decreed as follows: Background : Plaintiff PRAKAS GROUP, INC. is a business brokerage, specializing in restaurants. | It seeks a 10 percent commission connected with the sale of a restaurant ("McDougall ’s Bar and ori by seller W.K. INVESTMENTS, INC., which was the owner of the business and the lessee ‘of the | Premises where the business operated, to Defendant DOUG ASHMAN and his Wife, Page | of 12 v ADMINISTRATIVE COMPLAINT EXHIBIT # | 5 noe] PAGE | OF p__ EXHIBIT. GRAZYNA WNUK ASHMAN. McDOUGALL’S, INC., according to ATHAN ("TOM") PRAKAS ("PRAKAS"), owner and principal of the brokerage, was also sued, not as seller, which it was inot, but because it benefited from the sale. The initial contact between the seller and buyer - Was shortly after the expiration of the exclusive listing agreement (Plaintiff's. Exhibit 1 [PX-1] } whereby PRAKAS was to seek to sell the business. | Plaintiff, THE PRAKAS GROUP, INC., claims that it was the procuring cause of the sale. ~ , between the buyers, the ASHMANs, and the seller, W.K. INVESTMENTS; ASHMAN and W.K., nothing during the term of that contract, and that PRAKA conversely, contend that PRAKAS" did not introduce the ASHMANs to'thé property or the sellers, or even advise the ASHMANS of thie” fact that the property was available. PRAKAS had previously sought to broker a deal whereby DOUG ASHMAN would buy a “different restaurant business ("dura"), but that deal did not materialize. PRAKAS claims that aa’ exhibit itintroduced (PX-2) constitutes a confidentiality agreement, between DOUG ASHMAN and Plaintiff which was involved in Plaintiff's efforts to broker the sale of McDougall’s, for which it’ seeks the commission. Defendant ASHMAN maintains that he never signed such an agreement regarding McDougall's, and that the document appears to be a doctored version of a confidentiality agreernent which he had signed much earlier when PRAKAS sought to broker his purchase of Aura, : In the instant case, Plaintiff, the broker, claims that, soon after the expiration of the listing agreement, Plaintiff advised ASHMAN of the availability of the business property involved herein) and that the buyer and seller thereafter excluded the broker from their negotiations, which if resulted in the sale of the business, for which Plaintiff seeks a commission. The Defendant sellers Page 2 of 12 ADMINISTRATIVE COMPLAINT. . Wa : i : EXHIBIT a paceZ . i. | PAGE _ 4 OF maintain that the buyers, the ASHMANs, learned of the availability of the business for purchase ‘from a sign hung in the premises window by the seller after the termination of the listing agreement between the seller and PRAKAS, and that they thereafter contacted the seller and negotiated with the seller, with no involvement by the broker, even in making the buyers aware of the business’ availability. | FINDINGS OF FACT | : i Plaintiffs filed a four-count Amended Complaint. The first three counts were against Defendant DOUGLAS ASHMAN and his Wife.. They were defaulted on liability. The fourth count was the only count against Defendants McDOUGALL’S INC. and W-K INVESTMENTS, INC., © which’ corporations were the sellers of the business, which operated from a leased premises; that fourth: count seeks recovery of a real estate commission, not on the basis of the listing contract, Te ‘Which Plaintiff admits had expired, but on the ground that Plaintiff was the procuring cause for the - sale of the restaurant business involved here. A default was entered herein as to the ASHMANS, and the case went to trial, without a jury, _ PRAKAS’ President and Director, ATHAN (TOM) PRAKAS, has more than a quarter . century of experience owning and operating restaurants and lounges, in three states, including Florida. As a business broker, he specializes in stich business. Of more than 200 business sales he has brokered, 85 percent involved restaurants, He is particularly experienced in brokering sales of restaurants and lounges on Atlantic Avenue, in Delray Beach, where the premises involved herein are located. The standard commission for business brokers in sales of restaurants and lounges is 10%.! Plaintiff entered into an exclusive listing agreement with W.K. INVESTMENTS, INC. , Page 3 of 12 I ADMINISTRATIVE. COMPLAINT, v 4 EXHIBIT # EXHIBIT. paced i \ : . . ma - OF . it . PRMGE - oe ("W-K") which owned a restaurant and lounge operated as "McDougall’s Bar and Grill," which agreement called for a sales commission of 10% of the selling price. PRAKAS claims that the expiration date was February 1, 2004; McDOUGALL’S and W-K. maintain that the expiration date was December 16, 2003. Introduced at trial were two photocopies of different versions of the listing agreement, ' bearing those separate expiration dates, This Court finds that the contract expired on December 16, 2003; PRAKAS could give no satisfactory explanation as to why the original was not in his possession. Also supporting this finding is a letter (DX-17) from counsel for PRAKAS, addressed both to the ASHMANSs and to gbert Woltin, as a principal of both : MeDOUGALL? sand W.K. INVESTMENTS, INC., by coi | for PRAKAS; that letter, dated Feb. > .20, 2004, noted that "the exclusive listing agreement expired late last year.” | Regardless, ATHAN PRAKAS testified that he is not making a claim under the contract, “ “gs he ‘concedes that the contract had expired before he dealt with the ASHMANs regarding MeDougall ‘s. Although the preprinted contract form contained a provision that the. broker would have the right to place sale signs on the property, that was crossed out before the contract was ; ‘executed. The agreement provided that the property would ‘be listed at $895 000.00, although it provided that the price, if paid in cash, was "negotiable." Robert Woltin, who was a principal in W- K, stated that he would be interested in an offer in the-range of $750,000 to $795,000. 1 Although he admits that "I did not claim to bring anybody to the property before the listing ' One copy (DX-1A), was unsigned, with an expiration date of "12/16/03," and another (as part of PX-1A), bore the purported signatures of TOM PRAKAS and of W-K’s VP and co-owner, Carl Karmin, with an expiration date of "Feb. 1, 04 (2004" [sic]. Plaintiff claims the first was a draft, and the second, the finalized contract. No original signed agreement was introduced. Page 4 of 12 | ADMINISTRATIVE COMPLAINT i age _ EXHIBIT # it c [0 eal Oe ! ! had expired," PRAKAS claims that Woltin continued after the expiration date to encourage PRAKAS to continue his efforts, PRAKAS claims to have spoken to DOUG ASHMAN about the W-K property early in February, 2004, after having faxed ASHMAN a "Confidentiality Agreement and Agreement to Protect," a photocopy.of which Plaintiff offered as Plaintiff's Exhibit 2, which did not contain information identifying the business involved, This was early in February, after his listing agreement had expired. ~ | PRAKAS had first met ASHMAN and_-his wife when PRAKAS had a listing on "Aura," another club on Atlaiitic Avenue, and ASHMAN had approached the owner > péridd; the owner and ASHMAN had already discussed price, and could not come fo'an agreement -and PRAKAS says he knew that ASHMAN had a strong liking for the venue of Atlantic Avenue. PRAKAS claims that, knowing of the availability of McDougall’s, and realizing that’ ASHMAN wanted a similar location, he contacted ASHMAN and sent bim the confidentiality agreement to sign; the document binds the Prospect (prospective purchaser) to maintain confiden- _ tiality as to any business or property shown to him or her by THE PRAKAS GROUP, INC., and to pay a commission on the sale thereof if the property is sold "in the absence of” THE PRAKAS oRoU?, INC. ' PRAKAS testified that he sent that document to ASHMAN, and that ASHMAN signed it. PRAKAS could not produce the original of the document, but instead introduced what purports to bea photocopy thereof, signed by ASHMAN and PRAKAS, and bearing, as the name of the bose, “McDougalls," and containing the further notation, in PRAKAS’ handwriting, "go-see - 475K ALL CASH - will listen to offer - must be quick ! '! Just closed !! You missed AURA - Don’t Page 5 of 12 | . | ADMINISTRATIVE COMPLAINT. 7 | i EXHIBIT + cg 3,| PAGE > OF aaa. Ser = PI ~ business owned by W.K. INVESTMENTS. . miss this for NO-LOCO;" NO-LOCO was the name which ASHMAN had intended to give to his business at the Aura‘s location. The document was undated. : As to why he does not have the original of this confidentiality agreement, PRAKAS claims _ that he faxed the document to ASHMAN and that at ASHMAN never retumed it to him; this does not erphi how he would have a photocopy with a copy of ASHMAN’s signature, why the purported twice-faxed document had no fax transmission data on it. Moreover, as noted, the document is undated ASHMAN claims that he never signed any document regarding McDougall’s. He does remember signing a document of that type for PRAKAS regarding another business (dura) hei once looked at, but it absolutely w was no for McDougall’s. ' Given the suspicious nature of the purported copy which Plaintiff introduced, and the fact that ASHMAN and PRAKAS agree that there had been prior discussions between them over ASEMAN’s unsuccessful attempt to buy Aura, and given also the other factual findings herein, this Court agrees with ASHMAN’ statement that this copy (PX-2) is of a doctored version of his signed confidentiality agreement involving Aura, and not of a document involving the McDougall’s i “, ; It is undisputed that Defendants ASHMAN purchased furniture, fixtures, equipment, inventory and the liquor license of Defendant McDOUGALL/’S, INC. and sub-leased from W.K. ) INVESTMENTS, INC. the premises at which Defendant had operated McDougall’s, and at which Defendant wanted to open their own business under the name "Loco’s Only." - As noted above, thé sole count in the Complaint against W.K. INVESTMENTS, INC. was N not based upon the listing ‘agreement, which had expired prior to the time the ASHMANS leatned Page 6 of 12 ADMINISTRATIVE COMPLAINT: a EXHIBIT aL eanpere_2__pace 22 1 PAGE of the property being for sale, but instead was based solely on the "procuring cause" doctrine, which holds that a broker who is the procuring cause of a sale is entitled to an appropriate commission, based on the amount of the sale. In order to be the "procuring cause," the broker must produce a "ready, willing and able purchaser of the property [or business]." Earnest & Stewart, Inc. y. Codina, 732 So.2d 364 (Fla. 3d DCA 1999). Generally, it is not enough for the broker to bring the buyer and seller together; "[t]he broker must be involved in the continuing negotiations between the seller ",and the buyer." Siegel vLandquest, Inc., 761 So.2d 415, 417 (Fla. 5" DCA 2000), rev. denied, 780 So.2d 914 (Fla, 2001). That latter requirement is dispensed with, however, "if the seller and buyer intentionally exclude the broker from the i¢gotiations.” dd., citing, inter alia, South Pacific Enterprises, LP. y. Cornerstone, 672 So.2d 568 (Fla. 4" DCA 1996)("Cornerstone"). ‘The crux of the inquiry must be to determine whether the broker was an essential link in the ' - chain af events leading to the sale of the realty!” Thus, in Cornerstone, the record was clear that the broker had shown realty, the owner of which had retained the broker, to a hospital looking for a site to build a satellite facility. Ultimately, that hospital formed a partnership with a developer, and the partnership (a new entity which itself had not dealt with the broker) purchased the realty. The “broker had been excluded from the negotiations. Said the Court: | . ! It is ... a well-settled principle that a real estate broker may be entitled to a i commission on a sale of property, if it is determined to be the "procuring cause" of the sale. ‘ (Citing, inter alia, Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876 (Fla. 1944).] As explained in Taylor, the seminal case on the subject, a broker will be entitled to a commission as the procuring cause "[i]f the broker has brought the parties together and a sale is effected as a result of the continuous negotiations inaugurated by him." 155 Fla. At 308, 19 So.2d at 878. x * i *** The parties cannot resist the broker’s claim for commission by arguing that : it did not participate in the sales negotiations where the parties themselves had specifically Page 7 of 12 ADMINISTRATIVE COMPLAINT, — EXHIBIT rn 4 pace 33 Page 7) OF and purposefully excluded the broker from negotiations. ) Cornerstone, 672 So.2d at 570, noting also that "the absence of direct employment does not always bara broker from recovery where he had been found to be the procuring cause of the sale," citing National Airlines, Inc. v. Oscar E. Dooley Assocs., Inc., 160 So.2d 53, 54 Fla. 3d DCA 1964). Finding that the record was "replete with evidence indicating the significant role which Cornerstone played i in this sales transaction," iid, the Fourth DCA in Cornerstone affirmed the trial court’s finding that Comerstone was the procuring cause of the sale and was entitled to a commission from the seller, « This! in the case at bar, the fact that the Defendants exclided Plaintiff from their negotiations would not defeat the Plaintiff's claim to a commission, if the Plaintiff had introduced the ASHMANs to the McDougall's property, and had further attempted to act to make the sale a ” reality. On the other hand, even if PRAKAS had told ASHMAN of the property's availability, that would-not suffice to justify a commission; he would have had to do more, unless he was purposely kept out of the picture. Shuler v. Allen, 76 So.2d 879, 883 (Fla, 1955); Siegel v. Landquest, Inc., supra,761 So.2d at 417. This last consideration is crucial: the distinction is between (i) the broker simply doing nothing after telling a prospective purchaser about the property, and (ii) the broker attempting to be involved, but being thwarted by the parties’ excluding the broker from the negotiations. Even if this Court had not found, as it has, that PRAKAS did not introduce ASHMAN to the McDougall ’s property, PRAKAS would not be entitled toa commission, given the facts of this CASE. | PRAKAS claims to have introduced ASHMAN to the property, but does not show, or even i Page 8 of 12 ADMINISTRATIVE COMPLAINT, EXHIBIT tL enter Spas 3 A re OF ements ee Claim, ito have even attempted to do anything further, such as to follow up with ASHMAN to ask if he had gone to see the property, or even to advise the seller that he had referred ASHMAN to it. PRAKAS claims that, after he received back the fax of the confidentiality agreement signed by ASHMAN, he called him to apprise him of the opportunity and location, and that ASHMAN said i he would get on his "bike" (motorcycle) and go over to look at it. Yet, despite the fact that he never showed anyone the property during the term of the agreement, and despite the fact that he knew that ASHMAN was anxious to open a restaurant on Atlantic Avenue in Delray Beach (where were roy . . ; located not only McDéugall’s, but also Aura, the restaurant ASHMAN had b | : nothing until after he had happened by the property one night, saw the previously), PRAKAS: lights on and, knowing it was closed, went to see who was there, There, he saw ASHMAN, Woltin . and Karmin, who told him the deal had been consummated. It was only then that PRAKAS faxed to "Bobby {Woltin] or Carl [Karmin]" on February 17, 2004 a message (PX-4) containing a list of four names, including the ASHMANs, with the introductory language, "Per our listing agreement Iam to Togister all people whom I brought, sent or are the procuring cause ofa sale for McDougalls [sic] of y Atlantic Avenue, Please accept this as a Jist of persons who have been shown MeDougalls.” | | Significantly, PRAKAS admits that he never told Woltin or Karmin that he had advised ASHMAN of the availability of the McDougall’s location and business until after PRAKAS learned " that the sale to ASHMAN had closed. The next day, Woltin faxed an angry reply (X-5), noting that "your listing agreement expired on December 16, 2003,” and further noting that the agreement provided for a commission to the broker for a sale following termination only if the purchaser of lessee was "known to owner | Page 9 of 12 ADMINISTRATIVE COMPLAINT. ‘ | ee men t OF EXHIBIT 4 pace 2S AER agement re t to have had the property submitted to him or her during the period of the broker’s exclusive agency.” In that'same message, Woltin also complained that he had heard that PRAKAS had made slanderous statements about Woltin while on the premises of McDougall’s, and threatened a lawsuit for defamation “if this occurs again." | Thus, the evidence i is uncontroverted that Plaintiff never advised anyone of the availability 1 i of the business during the term of the listing agreement, and that, after he learned of the sale to ASHMAN following the expiration of the listing agreement, he for the first time claimed to have brought four prospective buyers info the picture, including the one, ASHMAN, who he knew lad just bought the business. PRAKAS admits that Plaintiff never interested any potential purchaser -during the term of the listing agreement, Given the legal requirements for him to have a right to a commission on a sale occurring after the expiration of the agreement, his mere mention of the property after that expiration date 2” would not entitle him to a commission. Plaintiff argues that, even though the agreement had expired shortly before PRAKAS told ASHMAN of the availability of the property, case law supports a finding of entitlement to a commission. However, even if the law did so provide, the listing agreement in this case at bar . ! : provides otherwise: the above-quoted provision from the listing agreement limits the broker’s right i toa commission toa post-expiration sale only if the purchaser or lessee had been shown the property before the expiration date. PRAKAS admits he did not tell ASHMAN about the property until after February 1, 2004, which he contends is the expiration date. |? Bither two months or only several days after the agreement’s expiration, depending on whether one regards the expiration date as being December 16, 2003 or February 1, 2004. As noted above}. this Court finds that the agreement expired on December 16, 2003. i Page 10 of 12 | i i ! i ! | i t i | | 1 i a I : i i | Most importantly, however, this Court finds the ASHMANs learned of the property by seeing a sign in the window, which had been placed there by the seller after the listing agreement had expired. The fact that PRAKAS and ASHMAN had previously had discussions about ASHMAN buying the Aura business and leasehold does not, without more, entitle PRAKAS to a commission ‘on theisale of, McDougall’s. Plaintiff not only did not play a significant role, it played.no role, in the i . sales transaction between the seller and the ASHMANSs. 1 , This Court has considered the testimony of all the witnesses presented by the parties, and 0 : . finds that any testimony supportive of Plaintiff is either not credible, or irrelevant, or is overcome by the, other evidence undermining Plaintiff's claims. CONCLUSIONS OF LAW ~ | Plaintiff was not the procuring cause of the sale of the business to the ASHMANs, and is not entitled to a commissién. . | This Court rejects Plaintiff's contention that South Pacific Enterprises, LP v Cornerstone Realty, 672 $0.24 568.(Fla. 4 DCA 1996) applies here and requires a finding that Plaintiff was the “procuring cause of the sale of the business to Mr. ASHMAN. In Cornerstone, the broker had introduced the hospital to the property, and had a pending contract with the owner for a commission if there resulted a sale to the hospital. The Fourth DCA held that Comerstone was entitled to its contractual commission, as the Court found "the record is clear that [the hospital’s] interest in the Page ll of 12 \ : : —— a MINISTRATIVE COMPLAINT EXHIBIT #_] ere 5 page) cane — LL oF —— | }o.. i. 1 I property, the genesis for all subsequent dealings including the ultimate sale of the property, resulted from atrip initiated by Comerstone." Jd, at 570. In the case at bar, there was no pending contract between the broker and the owners of the business, and the buyer was not apprised of the available I property by the broker. Even the sign in the window through which ASHMAN learned of the business $ availability was placed there by the owner after the listing agreement had expired. | | Plaintiff also relies heavily on Osheroff y. Rauch, Weaver, Millsaps & Co., 882 So.2d 503 (la. 4" DCA 2004). That case is similarly inapposite, for there, during the term of the listing agreement, broker showed the property to the eventual buyer, and:the landowner and buyer . excluded the broker from the agreement. The initial negotiations were discontinued, then renewed later, and the broker was excluded from these renewed discussions, which resulted in a sale. The 4 Fourth DCA there, too, logically held that the broker was the procuring cause of the sale. i yt i j Conclusion | WHEREFORE, J udgment should be, and hereby is, entered for Defendants. , iJ | Doni AND ORDERED jn Chambers at West Palm Beach, Palm Beach County, Florida, this y F avy of November, 2006, nunc pro tunc. Circuit Judge Copies Furnished: See attached ! ‘ Page 12 of 12 " ADMINISTRATIVE COMPLAINT ~ reed EXHIBIT # cage _) UF Copies furnished: George L, Sigalos, Esq 120 E, Palmetto Park Road Ste, 100 Boca featon, FL 33432 J ames K. Pedley, Esq 727 N. E, 3% Avenue Ste. 301 Fort Fauderdale, FL 33304 _ ‘The Prakas Group, Inc 703 East Palmetto Park Road 4: | ADMINISTRATIVE COMPLAINT | NE epee pace 34 ] ee IN THE CIRCUIT COURT. 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. McDOUGALL’S, INC, a Florida _ Corporation, and W-K Tavestments, Inc., aF ak Corporation , ao Plaintiffs, ° SO o ry am re THE PRAKAS GROUP, INC, a. Florida ¢orporation, and ATHAN "| CHARIES PR PRAKAS, an, individuat ‘ ! . 1 i Defendants. . | J COMPLAINT-FOR OUS PROSECUTION ee ~Gonis Now, the plaintitis, MeDovgall, Ine, and W-K lnvesimesis, ne. by and thiough their undersigned attomey and sues The Prakas Group, Tnc., a Florida oporation and re ) Athan Chase Prakas, individually and would allege as follows: - ° 1. This isa complaint for malicious prosecution, a This is a cause of action for damages that exceed $15, 000, exclusive ofi interest, costs, and attomey’s s fees, 3. The plaintiff, MeDougl! s, Inc., is a Florida corporation authorized to do business in Palm Beach County, Florida. 4. The plaintiff, W-K Investments, Inc., is a Florida corporation authorized to do business in Palm Beach County, Florida. “8: ;.éThe defendant, The Prakas Group, Inc., is a Florida corporation authorized to do i ae gp yntSTRATIVE COMPLAINT. ©). =n ; Lo EYMIBIT re PAGE pop . _ oF yi be TO naeeetnne business in Palm. Beach, County, Florida. woud : ; Athait ‘Chiatles Prakas i is an individual who is sui juris and resides and does | busisess aE in Palm Beach County, Florida , Mee! - qe “AlLof the actions giving rise to. this complaint took place in Palm Beach County, ' : Clee I Florida. | ’ , ‘All conditions precedent have been pérformed, excused, satisfied or waived, . -9: The plaintiffs herein were sued by the defendant, The Prakas Group, Inc., in the : «Circuit Court of Palm Beach County, Florida on May 4; 2004, The initial complaint named as ‘defendants, Doug Ashman, ai individual, and McDougall’s, inc,, only. There were initially three anses of action in the initial complaint. Count T was for breach of contract against Doug. " Ashman! only. Count q was for unjust enrichment agains Doug Ashman.only and Count III " dgainst Medougas Inc., only for recovery of real a estate commission for procuring cause. That complaint was signed on May 3, 2004, over the signature of George L Sigalos, attorney for The Prakas Group, Inc., 10 : The central gravamen of the complaint that was.filed by The Prakas Group, Inc., in . case no. |90-2008CA- 004621 XXXXMB (AE) alleged that ¢ areal estate transaction of purchase - and wile took place between Doug Ashmari and MeDougall's, Inc. During the spring of 2004, : with Ashman as the purchaser and McDovgall’s Inc, as the seller was closed as a result of efforts "and intr}ductions nade by The Prakas Group, Inc., and its principal, Athan Charles Prakas, The "lawsuit vas grounded on a confidentiality agreement and agreement to protect which was fo attached as Exhibit A to the complaint. . . “lL. ‘After discovery progressed in the action and amended complaint was filed on | / ADMINISTRATIVE COMP 6 nae EXHIBIT # of eR T_———_F | Pace ~~ oF nn January 5, 2005 over the signature of George L. Sigalos, Esquire. That amended complaint added additional parties. The Prakas Group, Inc., was suing the defendants, Doug Ashman and Grazyna Wnuk, husband and wife, and McDougall’s, Inc., and W-K Investments, Inc.. The " causes of action remained the same and the amendment merely added defendants. There was a i four count complaint and Count IV, which was against McDougall’s, Inc., and W-K Investments, | | Inc., alleged that the plaintiff, The Prakas Group, Inc., as a real estate broker was entitled to a J commission as the result of being the procuring cause on the real estate transaction between the purchaser, Doug Ashman and his wife, Grazyna Wnuk, as buyers, and McDougall’s Inc., and W- K Investments, Inc., ag sellers. ho. Again, thé key document that was relied on was the document titled, Confidentiality Agreement and Agreement to Protect in an about February, 2004. The document was referred in ____paagraph 9 of the amended complaint and was attached as Exhibit A to the pleading. Acopyof . ... that document is attached hereto as Exhibit A. 13. The principal witness testifying at trial on behalf of the plaintiff to support the allegations of the amended complaint was its principal, Athan Charles Prakas. 4 4, Anon-jury trial was held before the Honorable Judge Kenneth D. Stern. Judge Sten: issued a 12 page-Final Judgment on November 9, 2006. A copy of the Final 1 Judgment for defendants i is attached hereto as Exhibit B. 15. Athan Charles Prakas testified at trial that he contacted Ashman and sent him the Confidentiality Agreement to sign, which is attached as Exhibit A to the amended complaint. Athan Charles Prakas testified that the document binds the prospect (prospective purchaser) to maintain confidentiality as to any business or property shown to him or her by The Prakas Group, ADNUNISTRATIVE COMPLAINT, p nae Z EXHIBIT # EXHIBIT a Ce a ee i Inc., and to pay a commission on the sale if the property sold “in the absence of” The Prakas Group, Inc. Mr. Prakas testified under oath that the document was prepared and sent to Mr. - Ashman with regard to the specific property that the plaintiffs herein were selling in January and February of 2004, 16. Mr. Prakas testified that he sent the document to Mr. Ashman and Mr. Ashman signed it Mr. Prakas could not produce the original of the document, but instead introduced into evidence what purports to be a photocopy at trial signed by Mr. Ashman and Mr. Prakas and bearing! as the name of the business, “McDovugall’s” and containing the further notation, in. Prakas’ handwriting, “go see-47! all cash-list to offer-must be quick!!!!just closed!!!just missed Aura-don’t miss this for NO-LOCO” which was the name which Ashman had intended to give to his business at the Aura’s location. The document was undated. Mr. Prakas dealt with ________Mr. Ashman on another real estate transaction totally unrelated to the property the plaintiffs _ desired to market, The other real estate ‘transaction was “Aura”. 17. The trial court ruled that Exhibit A to the amended complaint, which was the central gravamen of the procuring cause allegations by the defendants against the plaintiffs in the undetlying action was a “doctored version” of a prior document unrelated to the underlying transaction involved in the litigation, The defendant, The Prakas Group, Inc., by and through its ~ principal, Athan Charles Prakas did not have an original of that confidentiality agreement at trial. 18, Mr, Prakas claimed that he faxed the document to Mr. Ashman and that Mr. Ashman never retumed it to him. This does not explain how he would have photocopy with the _copy of Ashman’s signature or, why the purported twice-faxed document had no fax transmission data on it. | ADMINISTRATIVE COMPLAINT | "EXHIBIT + —___f— B 19, Moreover, the document was undated. Ashman claimed that he never signed such a document regarding McDougall’s. He does remember signing a document of that type for Mr. Prakas tegarding another business “Aura”, he once looked at, but it was absolutely not for McDougall’s, The trial court in its Final Judgment stated as follows: Given the suspicious nature of the purported copy which plaintiff introduced, and the fact that Ashman and Prakas agree that there had been prior discussions between them over Ashman's unsuccessful attempt to buy Aura, and given also the other factual findings herein, this court agrees with Ashman’s statement that this copy is of a doctored version of his signed confidentiality agreement involving Aura, and not of a document involving the McDougail’s business owned by W-K Investments,” (Page 6 of the Final Judgment) ; ‘Charles Prakas introduced into evidence at trial 20. The Prakas Group, Inc., and Atha . . and testified at trial falsely under oath in an attempt to obtain a judgment in excess of $50,000, including attomey’s fees against McDougall’s Inc., and W-K. Investments, Inc., based on that _ document. The court ruled that the document Wasa fraudulent document and rejected the false testimony of Athan Charles Prakas concerning the preparation of that document; the purpose of the document; and its connection with the sale that took place between Doug Ashman and Grazyna Wnuk as purchasers, and McDougall’s Inc., and W-K Investments, Inc., as sellers. . 2i. The Prakas Group, Inc., and Athan Charles Prakas maliciously prosecuted McDougall’s, Inc., and W-K Investments, Inc.. The Prakas Group, Inc., and Athan Charles Prakas commenced the civil action in the Circuit Court of the Fifteen Judicial Circuit in and for Palm Beach County in the case styled, The Prakas Group, Inc., vs, Doug Ashman, Grazyna Wnuk and McDougall’s Inc., in case no. 50-2004CA-004621XXXXMB (AE). The Prakas Group, Inc., a Florida corporation by and through its sole stockholder and office director and real estate broker, Athan Charles Prakas caused the lawsuit to be filed and caused the matter to go ADMINISTRATIVE COMPLAINT. EXHIBIT # ‘ i x 5 oF 2 pace tt AAC Sah Lon msinenenst completely through a non-jury trial to conclusion and a final judgment to be entered against The Prakas Group, Inc., in that cause. 22, The wrongful lawsuit that was filed by The Prakas Group, Inc., by and through its sole stockholder, officer, director, and real estate broker, Athan Charles Prakas was concluded ~ with a final judgment for the defendants in its entirety by the final judgment dated November 9, 2006, slpned by the Honorable Judge Kenneth D. Stern. The Prakas Group, Inc., did not appeal that final judgment and thirty days after the final judgment was rendered, no appeal was taken and it was a bona fide termination in favor of McDougall’s, Inc., and W-K Investments, Inc.. 23. The Prakas Group, Inc., by and through its'sole stockholder, officer, director, and real estate broker, Athan Charles Prakas based their cause of action on a false and fraudulent document that is attached hereto as Exhibit. That document was also testified to by The Prakas _Group, Inc,, by and through its sole stockholder, officer, director, and real estate broker, Athan ot Charles|Prakas falsely at trial under oath. The court ruled that the testimony of the preparation of that document was false perjured testimony. The court ruled that that document had nothing to do withthe real estate transaction for which The Prakas Group, Inc., was seeking a real estate commission. The court ruled that that document was “doctored” and altered from a prior real estate transaction that had nothing to do with the real estate transaction for which The Prakas Group, Inc., was seeking a brokerage commission. The false and fraudulent document was submitted into evidence by The Prakas Group, Inc., and Athan Charles Prakas. Athan Charles . Prakas lied under oath about its preparation, purpose, and relevance to the transaction for which The Prakas Group, Inc., was seeking a commission. The Prakas Group, Inc., and Athan Charles Prakas acted with malice in instituting the proceeding that had no probable cause for a cause of ' 6 . COMPLAINT . | pOMINTSTRADYE =Xu >? 5 nae 6 EXHIBIT Gf Downer action for procuring cause against McDougall’s, Inc., and W-K Investments, Inc., for a real ’ estate commission that it sought in that action. 24. McDougall’s, Inc., and W-K Investments, Inc., suffered damages conforming to legal sind as a result of the malicious actions of the defendants, 25, This cause of action for malicious prosecution in actionable per se and damages necessarily follow and are presumed to exist 26. The plaintiffs in this cause have retained undersigned counsel and are obligated to pay a reasonable attorneys fee for the prosecution of this action. Pursuant to common law in the State of Florida, the laintiffs are entitled to reasonable attorneys fee to be ave din this cause a wee for'the cause of action of malicious prosecution. Glusman vs. Lieberman, 285 So. 2d 29 (4 DCA shy a a WHEREFORE, the plaintiffs seek a jury trial in this cause against The: Prakas Group, Inc, and Athan Charles Prakas and seek a cause of action for compensatory damages, costs, interest] and attorneys fee. | BE Vf, Z4 fi Lauderdale, FL 33304 Phone (954)523-2208 Florida Bar 220401 ; ADMINISTRATIVE COMPLAINT, EXHIBIT # ; _ art mane __ oF __ EXHIBIT tC pace Lo nua IN THE CIRCUIT COURT . ISTH JUDICIAL CIRCUIT IN AND FOR. - PALM BEACH COUNTY, FLORIDA . CASE NO, 502007CA17610XXXMB ‘ . . DIVISION: AN McDOUGALL’S, INC., a Florida Corpotation, and W-K Investments, inc, , va Florida Corporation so : ! i ! 5 } PHNTTD egy. somig DOH YO veag9ez08002 WNN T14 . _ hee me ui IE PRAKAS GROUP 1 INC,, a corporation, and ATHAN E S: PRAKAS, an individual A OV.dS to Defendant “Medougall s, Tic., a a Flotida Corporation, : W-K. _ Investments, inc., a ‘Florida Corporation, 1313 Las Olas Bivd. Ft, "had tale, FL 33316 . in fale 7 Plaintiffs’ Aitoniey, ‘jamed K. Pedley, Esquire 727.NE B3e Avenue Suite 301, Ft, Lauderdale, . soierdveo 7310 6/9 vooace; FL 33304 . . a 4 . ; a ‘Defendants . The Prakas Group, Int.,.a Florida corporation tay -" . y+ Athan Charles Prakas, individually = . Principal Address, 703-705 E Palmetto Park Rd. Boca Raton Fl 33432 & Mailing Address, - 715 Foxpointe Circle Delray Beach Fl 33445 ls : Registered Agent Name & Address of The Prakag Group, Inc., a | : Prakas; Athan C. "Tom" 715 Foxpointe Citcle ar Delray Beach Fl 33445'US a Defendant Attorney, Charles L. Jaffee, 7301-A W, Palmetto Park Road, Suite 3050 3 . "Boca Raton, Florida 33304 ; & . FINAL JURGEMENT THIS CAUSE having come before this Court on the Plaintiffs’ Motion for Final Jexigment on May 15, 2008-at 9:00 a.m., and the Court having’ heard the testimony, reviewed. the evidence, including the Memorandum of Settlement; and heard ‘argument of counsel, makes the following findings; ..‘" : | re ADMINISTRATIVE COMPLAINT + TE — pace EXHIB PAGE OF ene. . alll subsequent payments thereafter. McDOUGALL’ 'S INC. v: THE PRAKAS GROUP -CA 97-17610 AN Final Judgment FACTS’ The plaintiffs and the defendants enteréd into a Mediated Settlement Agreement on January ~ 21, 2008. The Settlement Agreement is clear anid concise. Both of the defendants were obligated __ pursuant to the Mediated Settlement Agreement to make payments to the plaintiffs as follows: a) $10,000 payment on or before January 30, 2008. |b) $45,000 payment on or before April 30, 2008, | 'c) $45,000 payment on or before July 30, 2008 _| The Defendants paid $10,000 as required pursuant to the Memorandum of Settlement on or, before January 30, 2008. The defendants failed to make the $45, 000 on or before April 30, 2008 and * ” i Pursuant to the Memorandum of Settlement, this court retained jurisdiction to enforce the settlement and the plaintiffs are entitled to an imimediate entry of a final judgment for all ‘unpaid : -sums.| All default payments due and owing under the Memorandum of Settlement are therefore accelerated and the defendants are-entitled to a final judgment: | _ DISCUSSION 4 Each ‘of the defendants: breached the Memorandum of Settlement by failing to make all « payments as required by the Memorandum of Settlement. The total amount of the judgment in favor "of thepainit ig $90,000.00, plus interést at the statutory rate of 1% from the date ofdefault, May | - 1,2008° The daily amount of interest calculated for the $90, 000 judgment i is $27.12. Since the date of default, cornmencing on May 1, 2008 to and including June 27, 2008, the interest amount is 2 , . ADIMINIST RATIVE COMPLAINT. 7 - pAGE. EXHIBIT #2 EXHIBIT PAGE __ & OF _____—— oe McDOUGALL'S INC, vy. THE PRAKAS GROUP CA 07- 17610 AN Final Judgment Sus73s ‘The court, awards the plaintiffs, McDougall’s Inc.; a Florida Corporation and W-K ) ve Investments, Inc., a Florida Corporation a judgment in the amount of $90,000 plus interest of _ “$y, 57315 against the defendants, The Prakas Group, Inc., Florida Corporation arid Athen Charles “Fei, an individual. Interest shall accrue until final judgmenti is satisfied i in full at the estatutory rate “ ‘ of interest permitted by law. ; Iti is further ered and Adjudged that the judgment debtors shall complete under oath Florids Rule of Civil Procedure Form 1.977 (Fact Information Sheet), includig all required ‘attachments,’ and serve it on the’ judgment creditor’ 3 attomey, within 45 days from the date of this final judgment, unless this final judgment i is satisfied or post judgment discovery is stayed. a | Jurisdiction of this case is retained to enter further orders that are proper to © compel the "judgment debtors to complete form 1.977, including all required attachments, and serve it on the - judgment creditors’ attorney, or the judgment creditors ifthe judgment cteditors are not ropredented . by an attorney. , . ; All for which let execution issue forthwith. mye “| DONE AND ORDERED, in Chambers, Palm Beach Courthouse, Palm Beach, Florida this Say. gic BEACH COUNTY fy that the toragoing {5 a true copy of the record In my- cfg’ James K. Pedtey, Esquire 727 NE 3” Avenue Suite 301, Ft. Lauderdale, FL 33304 Go ty pi 4 ‘Charles L. Jaffee, 7301-A W. Palmetto Park Road; ‘Suite 305C Boca Raton, Florida 33304 3 ADMINISTRASIVE COMPLAINT : . g EXHIBIT # 3 execs a” paced oo, ced 1 ae ae . - oS : wl. an: Se ta . + Vnuated Beal Fotete Meadors CONFIDENTIALITY AGREEMENT AND AGREEMENT TO PROTECT The undersigned prompect for and in cansidecation af The Prakas Group, Inc, providiog information on the subject bust yy hereia below iontified, the receipt of which ix boreby seknowledgcd, the undersigned ayrees «3 follown: 1, The Pmkas Group, Inc., as broker shall be identilied as TRGL _ + 2 neem Feforgation shall-maexe: any-con dential business review, all propeictary information, dats, ropors, records, materials, client _ PIRRASSFAX BACK TO 561-368-4303: names and addrosscs, typo of businesy/property, o¢ the knowdedge that the busincs/proparty & for sale/Icase, . 3. Tho paction proteated uhall be TPGT and the owmer of the: businesdpropeny of laace aad yither onc of the partic: may caforca 1 the teomts of this agrcomenc . 4. The undersigned xhall not without written conseat tom cither TPCT of owner Lenton, reveal any information whatzoover disclosed after execution of this agrocment about ewner/] esscc's business or property. Exeention shall be thosc partocrt, etaployces and/or sents of the undersigned required Lo be informed foc the purpocos of tho wodersizned ta make a judgment AS to iderest in the aubject mattcr, All'partnent, employees and/oc agents of the undersigned shall be under the same ~ Obligation as the undersigned. , S. The uaderdgned clearly understand thet TPG! may not Ive aa, exclusive lidlog of the nubject businca/proparty; thar same _ may hea “pockes listing”, open listing oc 4a exclusive listing of another broker. . IG. Tis understood by the wedersignad tut (oy UPGL nukes no reprosenudions of the completencsx oF accuracy ax fo any jaforsatca, and (b) any aed sil repecacalations and warrantiaa shall be made solcly by the bucined/ property owner ar lestge and shall be uct forth in n aigned definitive aproeasent betwous the undersigned and busincae/praperty owner ar lessec, The" andeniqned shall perfoon their own due diligence relying rolcly upon their own iavestigution of the subject : | propertyfbuatncss, i 7. Tho undersigned shwll not be liable or rexpomible for payrncat of commission upon the acquisition/purchase or lease of the Rubjoct buinexv/property, providing the undersigned dues net negotials and close on purchasc/] casc in the abseates OTP CT. To theevent the undersigned enters into a contract forsalc and purchase ur agroament aad closes without going thraugh TPGL cotect, and closing. Note: The ed ect, thes by listing sald si - a . ye REALE, ERSIGNED AGRKKS NOT TO TALK TO EMPLOYERS UNDER ANY CIRCUMSTANCE, Signaturcal Prospect / Priat Nasc Date PrinVAdrew | 90 sea. - 46F Ml cnsi-o' ‘Tisfeu fo Ger -musf be quxcle Ul yost closed ! aM NISTRATIVE COMPLAINT marr 1 oF

Docket for Case No: 10-001976