Lawsuit Between Katie D'amore and Michael Muskat

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA

KATIE D’AMORE

Plaintiff, CASE NO.:

vs.

MICHAEL MUSKAT

Defendant.____________________/

COMPLAINT

Plaintiff, Katie D’Amore, by and through her undersigned counsel, brings this action and

sues Defendant Michael Muskat and alleges:

JURISDICTION

1. This is an action for damages within the jurisdictional limits of this Court exclusive of

interest, attorney’s fees and costs.

2. The parties to this lawsuit at all times material hereto resided in Miami-Dade County,

Florida and did business within Miami-Dade County, Florida.

3. All actions giving rise to this lawsuit occurred in Miami-Dade County, Florida.

4. Therefore, this Court has jurisdiction over the parties and the subject matter of this

lawsuit.

PARTIES

5. Plaintiff Katie D’Amore, hereinafter “D’Amore”, is a resident of Miami-Dade County,

Florida and is sui juris.

6. Defendant Michael Muskat, hereinafter “Muskat”, is a resident of Miami-Dade County,

Florida and is sui juris.

7. At all times material prior to the entering into that certain business transaction which is

the subject of this lawsuit, Plaintiff and Defendant were friends.

8. Plaintiff D’Amore is a speech therapist.

9. Defendant Muskat is a sophisticated businessman.

10. Defendant Muskat, at all times material hereto, had a superior position and expertise than

Plaintiff D’Amore in business transactions, including leasing, contracts and negotiation

of business matters.

11. At all times material hereto, Defendant Muskat utilized his greater sophistication in

business matters and his friendship with Plaintiff D’Amore to entice Plaintiff D’Amore

into investing into and ultimately acquiring a franchise.

12. Through a series of false and fraudulent representations made by Defendant Muskat to

Plaintiff D’Amore, Plaintiff D’Amore was enticed into entering into an Agreement with

Defendant Muskat whereby Defendant Muskat fraudulently attempted to acquire fifty

(50%) percent of the franchise.

13. On or about November 3, 2010 Defendant Muskat falsely advised and represented to

Plaintiff D’Amore that he had an exclusive right to certain locations in South Florida

including Midtown in a franchise system run and operated by Message Envy. Attached

hereto as Exhibit A is an e-mail from Defendant Muskat to Plaintiff D’Amore evidencing

said representation.

14. Through said false representations, Plaintiff D’Amore was led to believe that the only

way she could obtain a Message Envy franchise in South Florida was through Defendant

Muskat.

15. Defendant Muskat knew at the time he made said representations that they were false and

that Plaintiff D’Amore would rely upon them.

16. Defendant Muskat also falsely represented and deceived Plaintiff D’Amore by

representing that he would completely negotiate the Franchise Agreement, the lease of

the subject location and would run the franchisee on a day to day basis.

17. Defendant Muskat also falsely represented to Plaintiff D’Amore the fact that Plaintiff

D’Amore would only have to be minimally involved with the day to day operations of the

subject franchise.

18. Defendant Muskat also falsely represented to Plaintiff D’Amore that he had the ability to

negotiate the franchise Agreement and the lease agreement for the subject location on

favorable terms that would benefit Plaintiff D’Amore.

19. Defendant Muskat also falsely represented that he had secured the exclusive right to lease

a location at the Shops of Midtown, a shopping center located in Miami, Florida, in order

to place this exclusive Massage Envy franchise and that the franchisor had given this

exclusivity to Defendant Muskat.

20. To further perpetrate the fraudulent scheme, Defendant Muskat advised Plaintiff

D’Amore that her name would have to be on all documents as his name could not since

he was involved in a lot of “short sales” but led Plaintiff to believe that he would be on

all agreements and equally responsible for all financial liabilities including the Franchise

Agreement, the Lease and the SBA loan that was necessary to secure the funds to build

out the location and start up business.

21. All of the foregoing additional false and fraudulent representations made by Defendant

Muskat to Plaintiff D’Amore were made prior to the entry into an agreement that

Defendant Muskat had prepared and submitted to Plaintiff D’Amore for execution.

22. Defendant Muskat, at all times material hereto, knew that all of the representations made

were false and fraudulent or made to induce Plaintiff D’Amore into entering into the

subject Agreement between the parties and that Plaintiff D’Amore would rely on said

representations.

23. Defendant Muskat also advised Plaintiff D’Amore that he had secured legal counsel to

protect her interests and she was legally protected in executing the subject Agreement

between the parties.

24. Unbeknownst to Plaintiff D’Amore, Defendant Muskat secured legal counsel for his own

benefit and, upon information and belief, utilized Plaintiff D’Amore’s monies to pay for

said legal counsel.

25. Defendant Muskat provided to Plaintiff D’Amore the attached Agreement, attached

hereto as Exhibit B, which was executed by the parties on or about November 11, 2010.

Subsequent thereto, on or about November 12, 2010 the Agreement was notarized as

evidenced by Exhibit C attached hereto. The executed agreement will be referred to

hereinafter as to the “Agreement”.

26. Plaintiff D’Amore never had independent counsel review the subject Agreement as she

was led to believe that the legal counsel that prepared the subject Agreement was

representing her interests and not that of Defendant Muskat.

27. Through the false representations and the scheme of deception, Defendant Muskat

secured through the subject Agreement 50% of the profit that Plaintiff D’Amore would

obtain from the subject franchise. In exchange for said 50% interest in the profit,

Defendant Muskat was supposed to start up and operate the subject franchise on a day to

day basis and maintain the business.

28. Through the fraudulent representations and scheme of deception perpetrated by

Defendant Muskat in getting Plaintiff D’Amore to execute the subject Agreement,

Plaintiff D’Amore would be responsible for putting up a one hundred (100%) percent of

all monies necessary (1) to secure the franchise, (2) lease the subject location, (3) to pay

any and all start up expenses, (4) to obtain an SBA loan whereby Plaintiff D’Amore

would be the sole and only guarantor, (5) to secure and pay for all lease payments

including being the sole party to be the guarantor under the subject lease for the location

to operate the franchise, (6) to start up and maintain the business, and, otherwise, (7) be

financially and legally responsible for any and all monies necessary to operate the

franchise and the financial exposure and liability for said operation.

29. Based upon the fraudulent representations and the scheme of deception perpetrated by

Defendant Muskat, Defendant Muskat orchestrated the obtainment through the subject

Agreement 50% of the profits of the franchise without putting any money into the

transaction, being financially obligated for no monies for the continued operation of the

franchise and being assured that he would not be financially responsible or legally

exposed to any and all financial or legal exposure for the operation of the franchise.

30. Based upon the false and fraudulent representations and the scheme of deception

perpetrated by Defendant Muskat, Plaintiff D’Amore put the sum of $100,000 in an

escrow account that was supposed to be created for the protection and benefit of

Plaintiff’s initial contribution to secure the franchise and the lease and other attendant

costs of commencing this project. Plaintiff D’Amore placed $100,000 in an escrow

account with the law firm of Silver & Silver on or about November 12, 2010. A copy of

the receipt of the law firm of Silver & Silver for the amount of $100,000 is attached

hereto as Exhibit D hereto. Defendant Muskat arranged for the law firm of Silver &

Silver to act as escrow agent.

31. Unbeknownst to Plaintiff D’Amore, Defendant Muskat never obtained an escrow

agreement for and on behalf of Plaintiff D’Amore and Plaintiff D’Amore was never privy

to the arrangements made between Defendant Muskat and the law firm of Silver &

Silver.

32. Subsequent to the entry into the subject Agreement between the parties, Defendant

Muskat provided to Plaintiff D’Amore a franchise Agreement which Defendant Muskat

claimed was fully negotiated with the franchisor for the benefit of Plaintiff D’Amore.

33. The initial franchise fee to be paid to the franchisor was $45,000. The $45,000 franchise

fee was in fact paid to Massage Envy, the franchisor, for the initial franchise fee from the

escrowed funds held by the law firm of Silver & Silver.

34. Unbeknownst to Plaintiff D’Amore, Defendant Muskat had orchestrated a kick back of

$10,000 of the franchise fee which was paid by the franchisor regional representative,

Jerome Kerns, which Defendant Muskat received and has accepted for his own personal

use and benefit. Defendant Muskat never disclosed to Plaintiff D’Amore that he had

orchestrated a kick back of $10,000 from the regional representative of the franchisor.

35. By virtue of the foregoing actions, which Plaintiff D’Amore was completely deceived

and unknowledgeable, Defendant Muskat received the benefit of $10,000 for Plaintiff

D’Amore entering into the subject Franchise Agreement with Massage Envy. Plaintiff

D’Amore has received none of the $10,000 which Defendant Muskat has converted for

his own use and benefit.

36. Plaintiff D’Amore has learned from the franchisor that the franchisor never provided an

exclusivity for any location to Defendant Muskat for a Massage Envy franchise and that

Defendant Muskat’s representations that he had an exclusivity for certain locations in

South Florida for a Massage Envy franchise including Midtown were false and not

authorized or condoned by Massage Envy, the franchisor.

37. Based upon the fraudulent representations and scheme of deception, Plaintiff D’Amore

executed the Franchise Agreement with Massage Envy and paid the $45,000 franchise

fee out of the escrowed funds belonging to Plaintiff Katie D’Amore.

38. Through continued deceptive actions and representations, Defendant Muskat led Plaintiff

D’Amore into the belief that he had hired a lawyer to review the subject lease for the

location where the franchise would be operated and that significant concessions had been

made by the landlord through said negotiations. In fact, Defendant Muskat without the

knowledge and consent of Plaintiff D’Amore, paid attorney’s fees to an individual who

Defendant has claimed did in fact review said lease. Plaintiff has never spoken to said

attorney.

39. Plaintiff D’Amore has in fact learned after executing the lease for the subject location at

the Shops of Midtown that a minimal review and negotiation was made and that

significant issues exist in the subject Lease that she executed. Additionally, Plaintiff

D’Amore has learned subsequent to executing the subject Lease that very little

concessions were obtained and that the rates and conditions that were negotiated were not

in her best interests.

40. Moreover, Defendant Muskat led Plaintiff D’Amore into the belief that the franchisor

was consulted on the choice of the subject location and involved in the negotiation of the

lease. Defendant did, in fact, represent that the franchise had approved the lease.

41. Plaintiff D’Amore has learned after executing the subject Lease that Defendant Muskat

never advised the franchisor that a lease had been negotiated and executed and never

procured a proper Rider to the Lease which is all required under the Franchise

Agreement. This has caused issues between Plaintiff D’Amore and the franchisor for the

failure of Plaintiff D’Amore to obtain the franchisor’s approval on the subject Lease and

to be listed on the Lease pursuant to the terms and conditions of the Franchise

Agreement. By virtue of these actions on the part of Defendant Muskat, Plaintiff

D’Amore may be technically in violation of the Franchise Agreement and, thus, in breach

thereof.

42. The initial payment for the subject Lease at the Shops of Midtown were made in the sum

of $12,937.50 which sums were supposed to be paid out of Plaintiff D’Amore escrowed

funds held by Silver & Silver. In fact, said funds were paid by a company belonging to

Defendant Muskat after Defendant fraudulently obtained Plaintiff D’Amore’s escrowed

monies. Attached hereto as Exhibit E is a copy of check No. 7578 issued in the amount

of $12,937.50 to DDR Corp. the landlord, by M.R. Company, Defendant’s corporation.

43. Unbeknownst to Plaintiff D’Amore, Defendant Muskat had directed the law firm of

Silver & Silver to disburse all funds of the escrowed monies belonging to Plaintiff

D’Amore to Defendant back in July of 2011. Attached hereto as Exhibit F is

correspondence dated October 26, 2011 from Silver & Silver evidencing said return of

the escrowed funds to Defendant Muskat.

44. Defendant Muskat by false and fraudulent means has in fact, converted at least

$40,572.50 of Plaintiff D’Amore’s escrowed monies from the law firm of Silver & Silver

which funds were the escrowed funds that were supposed to be held and protected by said

law firm for the benefit of Plaintiff D’Amore.

45. Defendant Muskat has converted the escrowed funds belonging to Plaintiff D’Amore and

has used said funds to his own use and benefit.

46. Plaintiff D’Amore has demanded the return of her funds that has been escrowed by the

law firm of Silver & Silver from Defendant Muskat that he has converted and Defendant

Muskat has refused to return said funds. A copy of the demand letter sent to Defendant

Muskat is attached hereto as Exhibit G.

47. In addition to the foregoing, Plaintiff D’Amore has learned that Defendant Muskat,

through this deception and fraudulent scheme, has orchestrated a kick back from the

landlord in relation to Plaintiff D’Amore executing a Lease at the Shops of Midtwon.

48. Defendant Muskat also attempted to further deceive Plaintiff D’Amore into contracting

with architects and contractors for the build out of the subject space at the leased

premises at a higher price than Plaintiff D’Amore would have had to expend if utilizing

the recommended architects and contractors of the Franchisor. This was another attempt,

upon information and belief, of Defendant attempting to obtain further kick backs to the

detriment of Plaintiff D’Amore.

49. Based upon the fraudulent representations and scheme of deception perpetrated by

Defendant Muskat, Plaintiff D’Amore was forced to apply to the SBA on her own for the

necessary funds to build out the premises and start up the business and to which she will

be solely and personally liable for. If Plaintiff did not follow through with this she would

jeopardize all of the monies she was deceived into placing in the franchise project to date

including the $45,000 initial franchise fee and the initial lease deposit in the amount of

$12,937.50.

50. Additionally, Defendant Muskat orchestrated the application for the SBA loan without

consulting with and utilizing the franchisor who could assist and help Plaintiff D’Amore

secure said loan.

51. Defendant Muskat also through his scheme of deception, failed to protect Plaintiff

D’Amore from the possibility of not being approved for said SBA loan, which if not

secured, would jeopardize and lead to Plaintiff D’Amore losing all of her money that she

placed in the franchise project.

52. Plaintiff D’Amore has initially been denied for the SBA loan thereby leaving her exposed

to losing her $45,000.00 initial franchise fee and the initial lease deposit in the amount of

$12,937.50.

53. When Plaintiff D’Amore learned of certain irregularities she retained Marcus Law

Center, LLC to investigate these matters and has incurred significant legal fees to

uncover the fraud perpetrated by Defendant Muskat.

54. After being confronted with the demand by Plaintiff D’Amore to return the converted

escrowed funds, Defendant, outrageously and in a desperate attempt to protect himself,

attempted to have Plaintiff D’Amore execute a full release of liability in order to obtain

her own money.

55. After being notified, by the correspondence attached hereto as Exhibit H, as to all of the

fraudulent actions which have damaged Plaintiff D’Amore, Defendant Muskat attempted

to again deceive Plaintiff D’Amore into executing an Addendum to the Agreement

between the parties to protect and release Defendant Muskat from the fraudulent actions

he perpetrated upon Plaintiff D’Amore.

56. Plaintiff D’Amore has refused to execute any release or addendum to the subject

Agreement.

57. All of the actions taken by Defendant Muskat have been done maliciously and with the

intent to harm Plaintiff D’Amore.

58. Based upon the fraudulent actions and deceptive scheme perpetrated by the Defendant

Muskat upon Plaintiff D’Amore, Plaintiff D’Amore has been damaged.

59. Plaintiff D’Amore has performed all conditions precedent to bringing this action and/or

they have been waived and/or Defendant’s actions have precluded Plaintiff from

performing said conditions precedent.

60. Plaintiff D’Amore has been forced to retain legal counsel to take actions to uncover the

fraud perpetrated by Defendant Muskat to minimize the damages and preserve the

franchise that Plaintiff D’Amore has paid for, to take actions to preserve the Lease that

has been entered into by Plaintiff D’Amore and, otherwise, to minimize any and all

collateral damages that have been caused by the actions of the Defendant.

61. Plaintiff D’Amore has also been forced to retain the undersigned legal counsel to bring

this lawsuit and has agreed to pay the reasonable attorney’s fees incurred in said

litigation.

COUNT I

FRAUDULENT INDUCEMENT OR MISREPRESENTATION

62. Plaintiff realleges and reavers each and every allegation contained in Paragraphs 1-61 as

if set forth herein at length.

63. Defendant Muskat made false material representations and committed the following

fraudulent actions as set forth hereinbelow:

a. On or about November 3, 2010 Defendant Muskat falsely advised and represented

to Plaintiff D’Amore that he had an exclusive right to certain locations in South

Florida including Midtown in a franchise system run and operated by Message

Envy. Attached hereto as Exhibit A is an e-mail from Defendant Muskat to

Plaintiff D’Amore evidencing said representation.

b. Defendant Muskat also falsely represented and deceived Plaintiff D’Amore by

representing that he would completely negotiate the Franchise Agreement, the

lease of the subject location and would run the franchisee on a day to day basis.

c. Defendant Muskat also falsely represented to Plaintiff D’Amore the fact that

Plaintiff D’Amore would only have to be minimally involved with the day to day

operations of the subject franchise.

d. Defendant Muskat also falsely represented to Plaintiff D’Amore that he had the

ability to negotiate the franchise Agreement and the lease agreement for the

subject location on favorable terms that would benefit Plaintiff D’Amore.

e. Defendant Muskat also falsely represented that he had secured the exclusive right

to lease a location at the Shops of Midtown, a shopping center located in Miami,

Florida, in order to place this exclusive Massage Envy franchise and that the

franchisor had given this exclusivity to Defendant Muskat.

f. To further perpetrate the fraudulent scheme, Defendant Muskat advised Plaintiff

D’Amore that her name would have to be on all documents as his name could not

since he was involved in a lot of “short sales” but led Plaintiff to believe that he

would be on all agreements and equally responsible for all financial liabilities

including the Franchise Agreement, the Lease and the SBA loan that was

necessary to secure the funds to build out the location and start up business.

g. Moreover, Defendant Muskat led Plaintiff D’Amore into the belief that the

franchisor was consulted on the choice of the subject location and involved in the

negotiation of the lease. Defendant did, in fact, falsely represent that the franchise

had approved the lease.

h. Defendant Muskat by false and fraudulent means has in fact, converted at least

$40,572.50 of Plaintiff D’Amore’s escrowed monies from the law firm of Silver

& Silver which funds were the escrowed funds that were supposed to be held and

protected by said law firm for the benefit of Plaintiff D’Amore.

64. All of the actions taken by Defendant Muskat have been done maliciously and with the


65. Plaintiff D’Amore relied on the false representations made to her and justifiably so to her

detriment.

66. Defendant Muskat knew that the false representations were false when made and were

made to induce the Plaintiff D’Amore into the following:

a. Entering into the Agreement attached hereto as Exhibits B and C.

b. Entering into the Franchise Agreement with Massage Envy.

c. Entering into the lease at the Shops of Midtown.

d. Putting up $100,000 of Plaintiff D’Amore’s money into an escrow account with

the law firm of Silver & Silver.

e. Applying for an SBA loan.

67. Plaintiff has been damaged by the false representations.

68. Plaintiff, as a result, is entitled to recover compensatory and special damages in excess of

the minimal jurisdiction of this Court.

69. Plaintiff reserves the right to amend her Complaint to seek punitive damages under

Florida Statute § 768.72, upon a showing that Defendant’s actions were willful, wanton

or reckless.

70. Plaintiff demands a trial by jury on all issues triable including this count.

WHEREFORE, the Plaintiff D’Amore requests that a judgment for compensatory and

special damages, pre and post judgment interest, and for attorney’s fees and costs, and for such

other and further relief as this Court deems just and proper be entered against Defendant

Muskat.

COUNT II

BREACH OF CONTRACT



72. Plaintiff D’Amore alleges that the Agreement attached hereto as Exhibit B and C is void

and has no validity based upon the fraudulent inducement caused and perpetrated by

Defendant Muskat as set forth in Count I hereinabove.

73. In the event that the Agreement is deemed valid, Plaintiff D’Amore states that Defendant

Muskat materially breached the Agreement, Exhibit B and C, entering into between the

parties as follows:

a. Failed to protect the interests of the Plaintiff in failing to communicate and contact the

franchisor in regards to the negotiation of the subject lease with the Shops of

Midtown.

b. Defendant Muskat put the monies belonging to Plaintiff D’Amore by directing the

escrow agent the law firm of Silver & Silver to disburse the funds to Defendant.

c. Defendant failed to protect the interests of Plaintiff in regards to the negotiations of

the franchise Agreement and the subject lease for the location where the franchise was

going to be located.

d. Defendant has taken monies and/or disbursed monies improperly and to the detriment

of Plaintiff.

e. Defendant has advised Plaintiff that he will not operate the subject franchise on a day

to day basis as agreed.

f. Defendant has failed to return the monies belonging to Plaintiff that Defendant has

converted for his own use and benefit, the escrowed funds of Plaintiff D’Amore.

74. The breaches of Defendant Muskat were material.

75. Plaintiff has been materially damaged by the breaches of the Defendant Muskat

breaching the foregoing Agreement thereby causing significant damage to Plaintiff.

76. As a direct and proximate cause of Defendant’s breaches, Plaintiff has been damaged.

77. Defendant knew or should have known that his acts would cause damages to Plaintiff.

78. Plaintiff is entitled to recover compensatory and special damages in excess of the

minimal jurisdiction of this Court.

79. Plaintiff reserves her rights to amend the Complaint to seek punitive damages under

Florida Statute §768.72, upon a showing that the Defendant’s actions were willful,

wanton or reckless.

80. Plaintiff demands a trial by jury on all issues triable including this Count.

81. Plaintiff is entitled to be awarded attorney’s fees.

WHEREFORE, the Plaintiff D’Amore demands judgment against Defendant Muskat,

for actual and special damages, interest, costs, and for attorney’s fees pursuant to the terms of the

Lease, together with such other and further relief as this Court deems just and proper.

COUNT III

CIVIL THEFT



83. This is a Count being brought under § 722.11(1) Florida Statutes.

84. Plaintiff d’Amore has been damaged by the theft of funds by Defendant Muskat.

Defendant Muskat with felonious intent stole Plaintiff’s funds.

85. Defendant committed theft by knowingly obtaining or using, or by endeavoring to obtain

or to use, the funds of Plaintiff with intent, either temporarily or permanently, to deprive

the Plaintiff of her right to the funds or a benefit from the funds.

86. That Defendant Muskat falsely directed with his felonious intent the law firm of Silver &

Silver to disburse escrowed funds belonging to Plaintiff D’Amore to Defendant Muskat

without authority with the intent to steal said funds.

87. Plaintiff D’Amore has demanded the return of said funds as evidence by Exhibit D

attached hereto.

88. Defendant Muskat has failed to return the stolen funds even though due demand has been

made for their return.

89. Defendant violated Chapter 812 of the Florida Statutes.

90. Plaintiff as a result thereof is entitled to treble damages against Defendant pursuant to §

722.11(1) Florida Statutes.

91. Plaintiff is entitled to recover reasonable attorney's fees and court costs pursuant to §

722.11(1) Florida Statutes.

92. Plaintiff demands a trial by jury on all issues triable including this count.

WHEREFORE, the Plaintiff D’Amore requests that a judgment for treble damages,

pre and post judgment interest, and for attorney’s fees and costs, and for such other and further

relief as this Court deems just and proper be entered against Defendant Muskat.

COUNT IV

CONVERSION



94. That Defendant Muskat with felonious intent falsely directed the law firm of Silver &

Silver to disburse escrowed funds belonging to Plaintiff D’Amore to Defendant Muskat

without authority with the intent to steal said funds.

95. Defendant knew that the funds being held by the law firm of Silver & Silver were

escrowed funds belonging to Plaintiff, and that the funds did not belong to Defendant

Muskat.

96. Defendant Muskat knew at the time that he directed the law firm of Silver & Silver to

disburse the balance of the funds being held in escrow for Plaintiff’s protection that said

direction to the law firm of Silver & Silver was improper and was not authorized.

97. Defendant Muskat converted the subject Plaintiff’s funds for his own use and benefit

without Plaintiff’s knowledge.

98. As soon as Plaintiff learned that Defendant Muskat had improperly taken her escrowed

funds, Plaintiff the true owner of said funds demanded the return of same as evidenced by

Exhibit G attached hereto.

99. Notwithstanding that demand, Defendant Muskat has exercised dominium and control

over said funds and has refused to return the funds to Plaintiff upon demand.

100.As result of the foregoing actions, Defendant Muskat has converted Plaintiff’s funds for

his own use and benefit and Plaintiff has been damaged as a result of his actions.

WHEREFORE, Plaintiff D’Amore demands judgment against Defendant Muskat in the

principal sum of at least $40,572.50, together with all costs, pre and post judgment interest and

attorney’s fees.

COUNT V

PROMISSORY ESTOPPEL

101.Plaintiff realleges and reavers each and every allegation contained in Paragraphs 1-61 as


102.Without regard to whether the representations made by Defendant were made

negligently or fraudulently, Defendant made promises and assurances to the Plaintiff with

the intent of the Plaintiff relying on them; that the Plaintiff did rely (and justifiably so) on

the promises and assurances of Defendant; that, as a direct result thereof, Plaintiff has

been damaged.

103.Plaintiff is entitled to recover compensatory and special damages in excess of the

minimal jurisdiction of this Court.

104.Plaintiff reserves the right to amend her Complaint to seek punitive damages under


or reckless.

105.Plaintiff demands a trial by jury on all issues triable including this count.



other and any further relief as this Court deems just and proper be entered against Defendant

Muskat.

COUNT VI

FRAUD

106.Plaintiff realleges and reavers each and every allegation contained in Paragraphs 1-61

as if set forth herein at length.

107.Defendant Muskat made false material representations and committed the following

fraudulent actions as set forth hereinbelow:

a. On or about November 3, 2010 Defendant Muskat falsely advised and represented

to Plaintiff D’Amore that he had an exclusive right to certain locations in South

Florida including Midtown in a franchise system run and operated by Message

Envy. Attached hereto as Exhibit A is an e-mail from Defendant Muskat to

Plaintiff D’Amore evidencing said representation.

b. Defendant Muskat also falsely represented and deceived Plaintiff D’Amore by

representing that he would completely negotiate the Franchise Agreement, the

lease of the subject location and would run the franchisee on a day to day basis.

c. Defendant Muskat also falsely represented to Plaintiff D’Amore the fact that

Plaintiff D’Amore would only have to be minimally involved with the day to day

operations of the subject franchise.

d. Defendant Muskat also falsely represented to Plaintiff D’Amore that he had the

ability to negotiate the franchise Agreement and the lease agreement for the

subject location on favorable terms that would benefit Plaintiff D’Amore.

e. Defendant Muskat also falsely represented that he had secured the exclusive right

to lease a location at the Shops of Midtown, a shopping center located in Miami,

Florida, in order to place this exclusive Massage Envy franchise and that the

franchisor had given this exclusivity to Defendant Muskat.

f. To further perpetrate the fraudulent scheme, Defendant Muskat advised Plaintiff

D’Amore that her name would have to be on all documents as his name could not

since he was involved in a lot of “short sales” but led Plaintiff to believe that he

would be on all agreements and equally responsible for all financial liabilities

including the Franchise Agreement, the Lease and the SBA loan that was

necessary to secure the funds to build out the location and start up business.

g. Moreover, Defendant Muskat led Plaintiff D’Amore into the belief that the

franchisor was consulted on the choice of the subject location and involved in the

negotiation of the lease. Defendant did, in fact, represent that the franchise had

approved the lease.

h. Defendant Muskat by false and fraudulent means has in fact, converted at least

$40,572.50 of Plaintiff D’Amore’s escrowed monies from the law firm of Silver

& Silver which funds were the escrowed funds that were supposed to be held and

protected by said law firm for the benefit of Plaintiff D’Amore.

i. After being confronted with the demand by Plaintiff D’Amore to return the

converted escrowed funds, Defendant, outrageously and in a desperate attempt to

protect himself, attempted to have Plaintiff D’Amore execute a full release of

liability in order to obtain her own money.

108.All of the actions taken by Defendant Muskat have been done maliciously and with the


109.Plaintiff D’Amore relied on the false representations made to her and justifiably so to

her detriment.

110.Defendant Muskat knew that the false representations were false when made and were

made to induce the Plaintiff D’Amore into the following:

a. Entering into the Agreement attached hereto as Exhibits B and C.

b. Entering into the Franchise Agreement with Massage Envy.

c. Entering into the lease at the Shops of Midtown.

d. Putting up $100,000 of Plaintiff D’Amore’s money into an escrow account with

the law firm of Silver & Silver.

e. Applying for an SBA loan.

111.Plaintiff has been damaged by the false representations.

112.Plaintiff, as a result, is entitled to recover compensatory and special damages in excess

of the minimal jurisdiction of this Court.

113.Plaintiff reserves the right to amend her Complaint to seek punitive damages under


or reckless.

114.Plaintiff demands a trial by jury on all issues triable including this count.



other and further relief as this Court deems just and proper be entered against Defendant

Muskat.

COUNT VII

UNJUST ENRICHMENT



116.Plaintiff conferred a benefit on the Defendant Muskat.

117.The Defendant appreciated the benefit conferred upon him.

118.That a clear benefit has flowed to the Defendant.

119.That the Defendant either requested the benefit or knowingly and voluntarily accepted it.

120.Under the circumstances it would be inequitable for the Defendant to retain such benefit

without paying the value thereof.

121.Defendant has been unjustly enriched.

122.Moreover, Plaintiff has no adequate remedy at law.

123.Plaintiff has been damaged as a result thereof.

124.Plaintiff is entitled to be compensated for the benefit conferred upon Defendant.

125.Plaintiff is demanding a trial by jury under this Count.

WHEREFORE, the Plaintiff D’Amore requests that a judgment for damages, pre and

post judgment interest, and for attorney’s fees and costs, and any further relief as this Court

deems just and proper be entered against Defendant Muskat.

COUNT VIII

INJUNCTIVE RELIEF



127.Defendant Muskat, upon information and belief, is continuing to hold himself out as a

partner and/or representative of Plaintiff’s interest in regards to the subject franchise and

lease.

128.Defendant Muskat has refused and continued to refuse to discontinue said actions.

129.Defendant Muskat’s actions threaten Plaintiff’s rights in regards to the franchise and the

business of the franchise.

130.That Plaintiff D’Amore is being irreparably injured by the actions of Defendant Muskat.

Defendant Muskat’s actions threaten the Franchise Agreement and the business to be

operated by Plaintiff.

131.Plaintiff D’Amore has no adequate remedy of law because damages are insufficient to

remedy Defendant Muskat’s continuous and unlawful actions in holding himself out as

an individual who has the right to obligate the franchise or to take any action on behalf

of the franchise which is owned one hundred percent (100%) by Plaintiff.

WHEREFORE, Plaintiff D’Amore requests judgment to be entered in her favor and

against Defendant Muskat as follows: (1) Temporarily and permanently enjoining Defendant

Muskat, his agents, servants, employees and others acting under his direction or authority, (2)

taking any actions for and on behalf of the franchise, (3) interfering in any way with

Plaintiff’s franchise and the operation of the franchise business, (4) contacting any third

parties and holding himself out as a representative and/or owner of the subject franchise and

taking any actions that bind or could harm the franchise owned by Plaintiff, (5) contacting or

taking any actions on behalf of Plaintiff’s franchise as relates to the subject Lease at the

Shops of Midtown and (6) any further relief that this Court deems appropriate under the

circumstances.

TRIAL BY JURY

Plaintiff demands trial by jury on all issues triable.

MARCUS LAW CENTER, LLC 2600 Douglas Road, Suite 1111 Coral Gables, FL 33134Telephone (305) 507-1203Facsimile (305) 507-1204

_______________________Alan K. Marcus, Esq. FL Bar 266116

Documents

Lawsuit Between Katie D'amore and Michael Muskat