IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA Case No. 06-08282 CA (04) § wd PADC MARKETING, LLC, $65.00 Defendant/Appellant, id O1 Sd¥ 8002 v. NOTICE OF APPEAL 943 JUDITH WERNER, Plaintift/Appellee. NOTICE IS GIVEN that PADC MARKETING, LLC, Defendant/Appeliant, appeals to the Third District Court of Appeal, the order of this court signed March 14, 2008, and docketed March 18, 2008, entitled “Final Judgment.” A copy of the order is attached as Exhibit “A.". The nature of the order is a final judgment awarding damages to the Plaintiff and dismissing Defendant's Counterclaim with prejudice. Higer Lichter & Givner, LLP Attorneys for PADC MARKETING, LLC, 18305 Biscayne Blvd., Suite 402 Aventura, FL 33160 Telephone: 305-9: Higer Lichter « Givner [ATTORNEYS AT LAW Bk 26340 Pg 3684 CFN 20080333204 04/23/2008 12:42:54 Pg 1 of 14 Mia-Dade Cty, FLCase No. 06-08282 CA (04) CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail this “/*day of Apri, 2008 to: Robert P. Frankel, Esquire, Robert P. Frankel & Associates, P.A., Attomeys for Plaintiff, 25 West Flagler Street, Suite 900, Miami, Florida 33130. rael J. Higer Higer Lichter & Givner [ATTORNEYS AT LAW Bk 26340 Pg 3685 CFN 20080333204 04/23/2008 12:42:54 Pg 2 of 14 Mia-Dade Cty, FL47g IN THE CIRCUIT COURT OF THE NS 11™ JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA JUDITH WERNER, GENERAL JURISDICTION DIVISION Plaintiff, CASE NO.: 06-8282 CA 04 vs. PADC MARKETING, LLC, a Florida limited liability company, Defendant, _ / FINAL JUDGMENT ‘THIS MATTER was presented to the Court for anon-jury trial on Tuesday, February 5,208 through Friday, February 8, 2008 with closing argument on Friday, February 22, 2008 on the issues raised by the remaining issues set forth in the Amended Complaint’, the Defendant's Answer, Affirmative Defenses, Amended Affirmative Defenses and Counterclaim and the Plaintiff's Answer and Affirmative Defenses to the Defendant's Counterclaim, For the reasons articulated by the Court during the hearing on March 7, 2008 as set forth in the attached transcript, it is hereby ORDERED AND ADJUDGED as follows: 1. The Plaintiff, Judith Werner, who resides at 5959 Collins Avenue, Apartment 703, Miami Beach, Florida 33140, shall recover from the Defendant, PADC Marketing, LLC, 550 Biltmore Way, Suite 970, Coral Gables, Florida 33134 the sum of $354,120.00 prejudgment interest through March 14, 2008 in the amount of ‘Count IV of the Amended Complaint sought damages for breach of contract for a sales commission owed on Villa I. That matter was settled between the parties and after the Plaintiff filed a Motion to Enforce the Settlement, the issue was settled and the commission was paid. * ma EXHIBIT Bk 26340 Pg 3686 CFN 20080333204 04/23/2008 12:42:54 Pg 3 of 14 Mia-Dade Cty, FL$78,018.71 for a total sum of $432,138.71 as of March 14, 2008 which sum shall accrue interest at the rate of 11% per annum from March 14, 2008 and for which let execution issue. 2. Having determined that the Plaintiff is entitled to damages for breach of a separate oral agreement as referenced in the attached transcript, the Plaintiff's claims for unjust enrichment and quantum meruit are dismissed with prejudice and shall go hence without day. 3. The Defendant/Counterclaimant, PADC Marketing, LLC’s Counterclaim is dismissed with prejudice and shall go hence without day. 4, The Court reserves jurisdiction to determine Plaintiff's entitlement to fees and costs and to assess the reasonable amount of such fees and costs. DONE AND ORDERED in Chambers in Miami-Dade County, Florida this day of March, 2008 CIRCUIT COURT JUDGE ~ ce: Robert P. Frankel, Esquire David Lichter, Esquire Conformed Copy MAR 14 2008 Gerald D. Hunbbart Circuit Court Judg Bk 26340 Pg 3687 CFN 20080333204 04/23/2008 12:42:54 Pg 4 of 14 Mia-Dade Cty, FL1 Werner vs. PADC March 7, 2008 LS IN THE CIRCUIT COURT OF THE — | llth JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO. 06-08282 CA (04) JUDITH WERNER, ) ) Plaintiff, ) ) vs. ) ) PADC MARKETING, LLC, a ) Copy Florida limited liability ) | company, ) ) ) ) ) L The above-entitled cause came on for Hearing before THE HONORABLE GERALD D. HUBBART, at the Miami-Dade Courthouse, 73 West Flagler Street, Room 2-1, Miami, Dade County, Florida, on the 7th day of March, 2008, commencing at 9:42 a.m. L www.mydepos.com Taylor, Jonovie, White & Gendron! Ofe. 305.358.9047 Florida Realtime Reporting Fax 305.371.3460 www.myreporters.com Bk 26340 Pg 3688 CFN 20080333204 04/23/2008 12:42:54 Pg 5 of 14 Mia-Dade Cty, FL2 ‘Wemer vs. PADC March 7, 2008 APPEARANCES: On behalf of the Plaintiff: ROBERT P. FRANKEL & ASSOCIATES, P.A. 25 West Flagler Street Suite 900 Miami, Florida 33130 (305) 358-5690 By: ROBERT P. FRANKEL, ESQ. DIANA P. GOSSY, ESQ. On behalf of the Defendant: HIGER, LICHTER & GIVNER, P.A. 2999 Northeast 191st Street Suite 700 Aventura, Florida 33180 (305) 933-9970 By: DAVID H. LICHTER, ESQ. JANESSA WASSERMAN, ESQ. ALSO PRESENT: DAWN JOBE, Court Reporter www.mydepos.com Taylor, Jonovic, White & Gendron/ Ofe. 305.358.9047 www.myreporters.com Florida Realtime Reporting Fax 305.371.3460 Bk 26340 Pg 3689 CFN 20080333204 04/23/2008 12:42:54 Pg 6 of 14 Mia-Dade Cty, FLeI koe wre 10 11 12 13 14 15 16 17 18 19 20 aes 22 23 24 25 Bk 26340 Pg 3690 CFN 20080333204 04/23/2008 12: 3 Werner vs. PADC March 7, 2008 THE COURT: Okay. This is the matter of Werner versus PADC Marketing, LLC, which was tried without a jury on the Plaintiff's complaint and Defendant's counterclaim. I'll give you the bottom line ruling right now. Judgment for the Plaintiff on the main claim in the amount of $354,122. And on the counterclaim, the counterclaim will be involuntarily dismissed. Let us deal with, first of all, what was the nature of the agreement between Judith Werner and PADC Marketing concerning resales and commissions to be paid thereon. This was an oral agreement, first of all, and the oral agreement is she was to receive one percent for commissions and PADC was to get a share of the commissions as well; but at minimum, Judith Werner was to be getting one percent. That was the agreement. Was this an amendment to the written agreement? From the evidence presented to the Court concludes it was not an amendment to the written agreement. First of all, the contract itself said that there would be no amendments to the contract, the employment contract, www.mydepos.com Taylor, Jonovic, White & Gendron/ Ofe. 305.358.9047 ‘www.myreporters.com Florida Realtime Reporting Fax 305.371.3460 :54 Pg 7 of 14 Mia-Dade Cty, FLoY Foe woe 10 11 a 13 14 Fs) 16 17 18 19 20 21 ees 23 24 aa Bk 26340 Pg 3691 CFN 20080333204 04/23/2008 12:42:54 Pg 8 of 14 Mi 4 Werer vs. PADC March 7, 2008 unless it was in writing; and this clearly was not in writing. Nor can it be said that this was some sort of minor amendment that might be permitted even though it was not in writing. This basically was a new type of undertaking. Before, PADC Marketing was going to be just selling units on behalf of the developer, Collins Avenue. Now, under this new arrangement, PADC Marketing would be selling units owned by individual purchasers as resale. And that, to me, makes it a different contract and therefore not an amendment to the written agreement. Was this an employment agreement? The Court's ruling is, yes, it was an employment agreement. First of all, there's absolutely no question that the written agreement between the parties concerning the sale of the developer units, that was a contract of employment. Therefore, this agreement between the parties that PADC would represent individual owners, that the individual realtors would be agents for the individual purchasers on resales, that was also an employment contract. The’ evidence of the oral agreement, the www.mydepos.com Taylor, Jonovic, White & Gendron/ Ofe. 305.358.9047 www .myreporters.com Florida Realtime Reporting Fax 305.371.3460 Dade Cty, FLSYK ewWwne 10 a 12 13 14 15 16 aes 18 19 20 21 ae 23 24 25 5 Werner vs. PADC March 7, 2008 existence of this oral agreement was, first of all, the testimony of the Plaintiff herself, Dora Puig, as well, which the Court found credible. And indeed at one point during his deposition, Mr. Peebles, who was the principal for PADC, conceded that she was morally entitled to commissions there. But more importantly is that the checks were actually signed for at least a portion of the claim damages here, 354,000. There had been discussions in the summer and fall of 2005 concerning what would happen on resales about waiver of the nonassignment clause and would PADC be entitled to something from the individual owners on resales. Obviously, the subject of resales had been discussed by these parties, and this was not something that was just sprung on Mr. Peebles and something that he just went ahead and signed some checks without realizing what he was doing. Second of all, to accept the Defendant's burden of -- or interpretation of the events, I guess, that Mr. Peebles did not know what he was doing just does not square frankly with Taylor, Jonovic, White & Gendron/ Ofe. 305.358.9047 www.mydepos.com Florida Realtime Reporting Fax 305.371.3460 www.myreporters.com Bk 26340 Pg 3692 CFN 20080333204 04/23/2008 12:42:54 Pg 9 of 14 Mia-Dade Cty, FLGo eo ee 10 il 12 13 14 15 16 17 18 19 20 ae 22 ae 24 a 6 Werner vs. PADC March 7, 2008 what Mr. Peebles -- how he presented himself as a witness in this case. He was an extremely knowledgeable individual, and he was -- I have a hard time believing that he did not know what was going on at the time he signed those commission checks. For some reason or another, when I guess it was about $90,000 of the resale commission checks had been paid over to the Plaintiff and recalled in the form of credits against commissions she was entitled to for the sale of developer units, there was apparently $22,000 that was not ever recalled. Because this is an oral amendment -- or, excuse me, oral contract, employment contract, it's not covered by the statute of frauds; so, therefore, the statute of frauds defense does not apply here. The Defendant has claimed some offsets. There was apparently a delay of one year in transferring her license. The evidence on when she was advised to do that was a little conflicting on that area, as to when she was advised she had to do it, although it was in the written agreement. But, more to the point, it would be inequitable to allow an offset for www.mydepos.com Taylor, Jonovic, White & Gendron/ Ofc. 305.358.9047 www.myreporters.com Florida Realtime Reporting Fax 305.371.3460 Bk 26340 Pg 3693 CFN 20080333204 04/23/2008 12:42:54 Pg 10 of 14 Mia-Dade Cty, FLSOY Soe wne a 12 abs | 14 15 16 17 18 no) 20 21 a 23 24 25 a Werner vs. PADC March 7, 2008 the commissions on the developer units that the Plaintiff earned when it doesn't appear that the one-year delay in transferring the license harmed the Defendant in any way. The Defendants also suggest that the 22,000 check which was not recalled -- commission check for the resales which was not recalled should be credited. Since that was part of the binding agreement between the parties, for that reason, there'll be no offset there. There's also a -- Defense also claims an offset for commissions relating to the sale of the Lori Alf property, but there is no confident evidence before the Court that Lori Alf had hired the Defendant to handle the resale of her unit before December 31st of '05, which is when the Plaintiff -- when her employment was terminated by the Defendant. Indeed, the evidence, credible evidence, was this was all done at Lori Alf's instigation after December 31st. As far as the resale, I think it was of villa 1, where the Plaintiff waived her commission, there was a claimed credit there www.mydepos.com Taylor, Jonovie, White & Gendron! Ofe. 305,358,9047 www.myreporters.com Florida Realtime Reporting Fax 305.371.3460 Bk 26340 Pg 3694 CFN 20080333204 04/23/2008 12:42:54 Pg 11 of 14 Mia-Dade Cty, FLe414 kv oO ewn 10 ae 12 13 14 15 16 ae 18 19 20 21 ne 23 24 25 8 Werner vs. PADC March 7, 2008 because the Plaintiff couldn't waive PADC's right to a two percent commission. Well, perhaps so, but I'm not too sure why it is the Plaintiff becomes responsible for PADC's two percent, so I'm not allowing any credit for that. think that covers all the issues except for the second -- well, the first count of the counterclaim deals with the fact that there was a breach in the agreement because the Plaintiff was handling resales in contravention of her written employment contract with the Defendant. Based upon the Court's ruling of the first -- on the Plaintiff's main claim, that count will be involuntarily dismissed. As far as the injunctive relief that's 2 of the counterclaim, the sought in Cou Court declines the issue on any injunction at this time. It does not appear that the Defendants -- or the Plaintiff rather is in possession of any customer lists or any confidential information. So I will call upon Plaintiff's counsel to prepare a judgment to that effect, send it over to Mr. Lichter so he can take a look at it www.mydepos.com Taylor, Jonovic, White & Gendron/ Ofe. 305.358.9047 www.myreporters.com Florida Realtime Reporting Fax 305.371.3460 Bk 26340 Pg 3695 CFN 20080333204 04/23/2008 12:42:54 Pg 12 of 14 Mia-Dade Cty, FL9 Werner vs. PADC March 7, 2008 ~ 1 | before it gets here, and he can register any 2 | objections he has with it. I believe the Court 3 |will also retain jurisdiction for fees and 4 | costs. 5 Let me conclude by saying one thing. 6 |Sometimes being a judge can be pretty tough 7 |work, and sometimes the reason why it's tough 8 |work is because you got bad lawyers. That was 9 |not the case in this trial. And both of you 10 | would be a welcome presence here, as I'm sure 11 | you are in any other courtroom. Good day. 12 MR. FRANKEL: Thank you, Your Honor. 13 (Whereupon the proceedings concluded at a ioscan) 15 16 17 18 19 20 21 22 23 24 25 L www.mydepos.com Taylor, Jonovic, White & Gendron! Ofe, 305,358,9047 www myreporters.com Florida Realtime Reporting Fax 305.371.3460 Bk 26340 Pg 3696 CFN 20080333204 04/23/2008 12:42:54 Pg 13 of 14 Mia-Dade Cty, FL10 Werner vs. PADC March 7, 2008 CERTIFICATE STATE OF FLORIDA COUNTY OF BROWARD I, DAWN JOBE, Court Reporter and Notary Pub certify that I was authorized to and did stenographically report the foregoing proceedings; that the transcript is a true and complete record of my stenographic notes. I further certify that I am not a relative, employee, attorney or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in the action. Witness my hand this 13th day of March, 2008. , Court Reporter My CommisSion No: DD 0400166 Expires: February 27, 2009 www.mydepos.com ‘Taylor, Jonovic, White & Gendron/ Ofe. 305.358.9047 www.myreporters.com Florida Realtime Reporting Fax 305.371.3460 a Bk 26340 Pg 3697 CFN 20080333204 04/23/2008 12:42:54 Pg 14 of 14 Mia-Dade Cty, FL