AMENDED ANSWER,

IN THE CIRCUIT COUT FOR THE
SEVENTEENTH JUDICIAL CIRCUIT IN
AND FOR BROWARD COUNTY,
FLORIDA
CASE NO: CACE -21-021315 Division 3
BEHAR, GUTT, & GLAZER, PA.,
a Florida professional association,
Plaintiff,
v.
JOSEPH MABE and
MERRILEE ZAWADZKI
Defendant(s)

AMENDED ANSWER, AFFIRMATIVE DEFENSES, ANDCOUNTERCLAIM

ANSWER

COME NOW, the Defendants, MERRILEE ZAWADZKI (“Defendant” “Zawadzki”)
and the defendant, JOSEPH MABE (“Defendant” or Mabe”), appearing pro se, and files this
Amended Answer, Affirmative Defenses and Counterclaim to Plaintiff’s Complaint, as follows:

JURISDICTION AND VENUE

Admit the allegations in paragraph 1 of the Complaint to the extent it purports to be an action
for damages.
Defendant avers that Paragraph 2 of the Complaint contains information unknown to the
Defendants, and is therefore denied.

Defendants admit the allegations in paragraph 3 of the Complaint that MERRILEE
ZAWADZKI is a resident of Wayne County, but deny she is sui juris, as she has a power of
attorney used in the underlying case.
Defendants admit the allegations in paragraph 4 of the Complaint that JOSEPH MABE is a
resident of St. Lucie County, Florida and is sui juris.
Defendants deny the allegations in paragraph 5 of the Complaint and demand strict proof of
the averments thereof. Defendants state that the underlying dispute involved bankruptcy
proceedings for Villas of Windmill Point II Property Owners Association, Inc., which is
located in Port St Lucie, Florida. While the bankruptcy proceedings were before the U.S.
Bankruptcy court for the Southern District of Florida and the plaintiff’s place of business is
in Broward County Florida, this is a dispute that involves Port Saint Lucie, Florida and was
litigated from the U.S. Bankruptcy Court for Southern District of Florida. West Palm Beach
Division.
Defendants deny the allegations in paragraph 6 of the Complaint.
Defendants deny the allegations in paragraph 7 of the Complaint.
ALLEGATIONS COMMON TO ALL COUNTS
Defendants agree in part and deny in part, the allegations in paragraph 8 of the Complaint. It
is Admitted that BEHAR, GUTT, & GLAZER, P.A. (“BGG”) and the Defendants entered
into an agreement with BBG and agreed to an hourly rate. It is denied that the legal services
agreed upon were performed. And admit what purports to be a copy of the Agreement is
attached marked as Exhibit “A.”
Defendants admit the allegations in paragraph 9 of the Complaint but dispute the amount of
said invoices and how timely they were filed.

Defendant admits the allegations in paragraph 10 of the Complaint in part and denies them
in part. Defendants agree that BGG preformed ongoing services. However, they deny that
there was no objection. See attached. (Exhibit A).
Defendants admit in part and deny in part the allegations in paragraph 11 of the Complaint.
Defendants admit that an order granting Expedited motion was issued. However, they deny
that it was (ECF 560) and deny that it was entered on October 24, 2021.
Defendant admits the allegations in paragraph 12 of the Complaint as to the amount
deposited into the trust account.
Defendants deny the allegations in paragraph 13 of the Complaint.
Defendants aver that there is insufficient information to admit or deny the allegations in
paragraph 14 of the Complaint.
Defendants admit the allegations in paragraph 15 of the Complaint that the Plaintiff provided
a notice to the Defendants.
Defendants deny the allegations in paragraph 16 of the Complaint.
Defendants deny the allegations in paragraph 17 of the Complaint.

COUNT 1

FORECLOSURE OF ATTORNEY CHARGING LIENS

Defendants admit the allegations in paragraph 18 of the Complaint that this purports to be an
action for damages.
Defendants admit and deny the allegations in paragraph 19 of the Complaint. Defendants
admit that an agreement was entered into. However, they deny that the length of time for
performing the services was part of the agreement.
Defendants deny the allegations in paragraph 20 of the Complaint.

Defendants deny the allegations in paragraph 21 of the Complaint.
Defendants deny the allegations in paragraph 22 of the Complaint.
Defendants deny the allegations in paragraph 23 of the Complaint.

COUNT II

FORECLOSURE OF ATTORNEY RETANING LIEN

Defendants admit the contents of paragraph 24 of the Complaint that this purports to be an
action for damages.
Defendants admit and deny the contents of paragraph 25 of the Complaint. Defendants admit
that an agreement was entered into. However, they deny that the length of time for
performing the services of the agreement.
Defendants deny the allegations in paragraph 26 of the Complaint.
Defendants deny the allegations in paragraph 27 of the Complaint.
Defendants deny the allegations in paragraph 28 of the Complaint.
Defendants deny the allegations in paragraph 29 of the Complaint.

COUNT III
BREECH OF CONTRACT

Defendants admit the contents of paragraph 30 of the Complaint to the extent that what
appears to be a copy of a retainer agreement is attached. Defendants aver that there is
insufficient information to respond to rest of the allegations therein.
Defendants deny the allegations in paragraph 31 of the Complaint.
Defendants deny the allegations in paragraph 32 of the Complaint.

5
COUNT IV
OPEN ACCOUNT

Defendants aver that there is insufficient information to admit or deny the allegations in
paragraph 33 of the Complaint.
Defendants deny the allegations in paragraph 34 of the Complaint.

COUNT V
ACCOUNT STATED

Defendants admit the allegations in paragraph 35 of the Complaint to the extent that before
this action there were business transactions. However, the Defendants deny the resulting
balances.
Defendants admit in part the allegations in paragraph 36 of the Complaint to the extent that
statements were sent. However, the Defendants aver that there is insufficient information to
respond to rest of the allegations therein.
Defendants deny the allegations in paragraph 37 of the Complaint.

COUNT VI

SERVICES RENDERED/ QUANTUM MERUIT

Defendants deny the allegations in paragraph 38 of the Complaint.
Defendants deny the allegations in paragraph 39 of the Complaint.

COUNT VII
UNJUST ENRICHMENT

Defendants deny the allegations in paragraph 40 of the Complaint.
Defendants deny the allegations in paragraph 41 of the Complaint.
Defendants deny the allegations in paragraph 42 of the Complaint.

STATEMENT OF FACTS COMMON TO AFFIRMATIVE DEFENSES AND COUNTER

CLAIMS

The Complaint (Complaint”) in this matter was filed by BEHAR, GUTT & GLAZER, P.A.
(The “Plaintiff”, “Plaintiff/Counter- Defendant” or “BGG” or “Mr. Behar”), on December
1, 2021.
In this matter, MERRILEE ZAWADZKI (“the Defendant/Counter-Plaintiff” or “Ms.
Zawadzki”) and JOSEPH MABE (the Defendant/Counter-Plaintiff” or “Mr. Mabe”)
(collectively the “Defendants/Counter-Plaintiffs”) on or about February 10, 2021 entered
into an agreement for legal services that was reduced to a Retainer Agreement with
Plaintiff/Counter-Defendant. Said Retainer is attached as an exhibit to the Complaint.
Defendant/Counter Plaintiff paid a consultation fee of $800.00 on or about February 2, 2021
to Plaintiff/Counter-Defendant to review documents and Evidence and discuss
Defendants/Counter Plaintiffs objectives involving a matter with Villas of Windmill Point
Property Owners Association (“the Villas”). The meeting lasted just over 3 hours.
The documents and evidence was dropped off at Mr. Behar’s office. And on or about
February 10 2021 a Retainer fee of $5000.00 was paid to Plaintiff/Counter Defendant.
There is nothing in the Retainer Agreement that allows the Plaintiff/Counter- Defendant to
deduct amounts that are alleged to be due under the Retainer Agreement, from amounts that
are deposited into the Trust Account in the Villas Bankruptcy.
As it relates to the Villas Bankruptcy, there were multiple payments that were made to BGG
in excess of $60,000. However there were on going disputes and concerns about the
Defendants/Counter-Plaintiff’s Objectives and the excessive billing. Defendants made both

verbal and written concerns about the fees. Exhibit “A” shows emails between the
Plaintiff/Counter-Defendant as it relates to the scope of the litigation and the billing.

Funds were placed into Mr. Behar’s Trust Account in the amount of $17,500 for Mr. Mabe
and $17,500 for Ms. Zawadzki.
Defendants/Counter-Plaintiffs entered into a settlement agreement, which provided that the
funds be placed into the account of BGG. Defendant/Counter-Plaintiffs did not give an
option as to the disbursement of these funds. The Settlement Agreement was not entered into
voluntarily.
Immediately, during settlement negotiations, Mr. Behar told Mabe and Zawadzki that the
Trustee in the Bankruptcy filed an Expedited Motion, in order to force the approval of the
Settlement Agreement.
Defendants/Counter-Plaintiffs requested Mr. Behar to object to the hearing and pleadings
approving the claim for voting purposes only filed on or about 8/25/2021 Court document
538 Exhibit “ “ (just include the entire document, but specify the page number); and
purporting an amended agreed an objection to claims on numerous occasions between
August 25, 2021 and at least September 13. 2021. Mr. Behar did not make such objections
and further had to leave for a family emergency during the time the other parties conducted
such negations without Mr. Mabe, Ms. Zawadzki or there Counsel, Mr. Behar, present.
Exhibit “ ” shows emails of such request.
As to the Settlement; there was no global agreement consented to, or signed by all Parties on
September 17, 2021.
Mr. Behar states, that an Order granting motion (EFC 560) “was granted on October 24,
This is not true. (ECF 560) was docketed on September 17, 2021. The Motion was

approved on September 29, 2021 and (EFC 585) was signed on October 1, 2021 and entered
on October 4, 2021 (Exhibit B).

Proceeds totaling $35,000 from the settlement were never dispersed to Ms. Zawadzki or Mr.
Mabe.
Throughout the Villas bankruptcy, BGG: refused to file a pleading to seek a dismissal of the
entire bankruptcy case; fought off numerous requests to seek an evidentiary hearing to
submit evidence to the Court; and refused to object to various motions, or to join or file a
proper lawsuit as requested by Defendants/Counter- Plaintiffs. Exhibit “C” is one example
of these requests. [You may include any other evidence you have]
On Mr. Behar’s initial meeting with Mr. Mabe and Ms. Zawadzki’s representative, he spent
in excess of 3 hours looking through Defendants/Counter-Plaintiffs Evidence and
Documents. He shared with Mabe and Zawadzki that he had been a lawyer for over 40 years
of relevant experience. He further stated that he was familiar with Chapter 7, Chapter 11 and
Chapter 13 Bankruptcies and made it clear he was a litigator.
On July 20, 2021, Defendants Counter-Plaintiffs were discussing objections to a motion
being held the next day in regards to a confirmation set for July 21, 2021. Defendants/counter
Plaintiffs had previously asked Mr. Behar to file an Objection to that Motion, which
Objection did not get filed. Accordingly, Mr. Behar was thwarting the efforts and refusing to
submit the information and the evidence. On that day, Mr. Behar informed us his wife was
diagnosed with COVID so he had to cancel our discussions and continue the hearing. This
Objection and the evidence never got heard, to the detriment of the Defendants/Counter
–Plaintiffs. Exhibit “ ”. (include evidence that the hearing was continued for the said
reason).

Defendant/Counter-Plaintiffs presented evidence of bad faith on multiple occasions and
requested Plaintiff/Counter-Defendant file a motion to dismiss the case. Plaintiff/Counter-
Defendant failed to file such motion. Exhibit “ ” (include evidence of Bad faith that you
presented).
It should be noted that the Trustee represented to the bankruptcy Court that there was a
Settlement Agreement, even before the Defendant/Counter-Plaintiff had ever agreed to it.
The Plaintiff refused to Object to the filing of the motion and did not respond to emails sent
to him about it. (Exhibit D) (include any other evidence you have). There was no single
agreement of all of the parties at the time the motion was filed.
There never should have been an Expedited Motion to Approve a Settlement as parties were
still negotiating.
The Plaintiff/Counter-Plaintiff did not have the consent from the Defendants/Counter-
Plaintiffs to settle. It is clear that the Defendants wanted to be the ones that decided any and
all issues. The Defendants have several exhibits showing verbal and written requests to the
Plaintiff, which the Plaintiff disregarded. Exhibit “ ”. (include any relevant evidence).
Accordingly, Defendants had not agreed on a settlement. Instead, Defendants were coerced
into the Agreement. They did not settle on their own accord. They were under duress, and
were financially threatened. At the same time, the legal billing was extremely exaggerated
and was not reflective of the services the defendants requested. Notably, the Plaintiff told the
Defendants that they would not represent them if they did not sign the agreement.
Defendants made payments to the Plaintiff on a monthly basis. As it has already been
observed hereinabove, the billing was extremely excessive and not reflective of what was
agreed upon.

Defendants aver that Mr. Behar fraudulently devised a way to force a settlement and then to
take all of the fees awarded.
Plaintiff has been paid over $60,000 by Mr. Mabe and Ms. Zawadzki and misappropriated
the $35,000 from the Settlement agreement, which was entered under duress and undue
influence. The Plaintiff then filed the instant lawsuit on December 1, 2021 and had it served
on Mr. Mabe and Ms. Zawadzki a few days before the holidays, likely hoping to get a
Default judgment.
It is worth noting that no legal work was undertaken by the Plaintiff that justifies the $95,000
in legal fees that they are seeking. The have already been paid $60,000, and added $35,000
from the Settlement.
Mr. Mabe and Mr. Zawadzki were to receive the names of the new owners of the Villas as
one of the terms of the Settlement agreement. Notably, the Plaintiff assured
Defendants/Counter-Plaintiffs they would get the names immediately upon signing. The
Plaintiff further told Mabe and Zawadzki they had to sign the Settlement agreement before
they could get the names. Mabe and Zawadzki did not want to sign the agreement because,
among other unresolved issues, there was no assurance that they would receive the names
and it was not in their best interest.
As part of the settlement agreement a confidentiality agreement was required to be signed
prior to giving the names. Mabe and Zawadzki continually asked Mr. Behar for this
agreement. He failed to provide it. Mr. Behar continued to assure Defendants the names
would be provided upon signing. Consequently, the confidentiality agreement was never
provided for review prior to court’s approval of the Settlement agreement.

As the day approached for the expedited hearing to enforce the Settlement Agreement, Mabe
and Zawadzki again set forth that they were promised the names of the owners. Mr. Behar
made the representation that the names would be provided upon signing the settlement
agreement.
Notably, Mr. Behar sent an email requesting the names and received a response they had to
have the stipulation signed first. Mr. Behar shared this email and reiterated that “as soon as
you sign you will get the names.” Defendants/Counter plaintiffs relied on those
representations made by Mr. Behar. Mr. Behar continued to pressure Defendants/Counter-
Plaintiffs into signing the Settlement Agreement. Under extreme pressure and duress
Defendants/Counter-Plaintiffs signed so that they could get names prior to the Expedited
hearing.
The foregoing notwithstanding, Defendants/Counter Plaintiffs never received the names or
the Confidentiality agreement. They were unfairly deceived, misled and pressured by the
improper motion, which was illegally expedited to force a Settlement that Mr. Behar refused
to object to. Exhibit “ ”. (include any relevant evidence).
Further, the Plaintiff did not object to the approval of the agreement without the production
of the names requested by Defendant/Counter- Plaintiffs.
The Plaintiff did not also object to an erroneous item added to the Court order (docket #586)
giving an extra 14 days to produce the Names. The additional 14 days was not mentioned in
the court hearing and can be verified in the court transcript of September 29, 2021. Exhibit “
“ (the transcript) and Exhibit “ ” (the Court Order).
Mr. Mabe and Ms. Zawadzki further asked the Plaintiff to request on numerous occasions
from the Bankruptcy court, recovery of statutory damages under Fla. Stat. 720.303. There

were multiple violations under this statue, whose redress was properly requested by
Defendant/Counter Plaintiff. However the Plaintiff failed to diligently pursue the recovery of
these damages to the detriment the Defendants/Counter-Plaintiffs. The same Court awarded
creditors in this same over $245,000, based on the same statute.

Fla. 720.313 5(b) Production of records specifically states in pertinent part thus:
A member who is denied access to official records is entitled to the actual
damages or minimum damages for the association’s willful failure to comply
with this subsection. The minimum damages are to be $50 per calendar day up
to 10 days, the calculation to begin on the 11th business day after receipt of the
written request.
This request was made numerous times to the Trustee in the Bankruptcy case and was denied
the official records in each request. Defendants/Counter-Plaintiffs requested on numerous
occasions that Plaintiff/Counter-Defendant properly request recovery pursuant to Defendants
request. Plaintiff did not properly pursue recovery to the Defendants/Counter –Plaintiff’s
determent
On or about June/July Plaintiff filed an erroneous motion for the production of Documents.
Mr. Behar was told by the court that as an attorney with his experience that he should have
known better and asked him to file the proper subpoenas for such production. The
Defendants were charged for this wrong filing including for wasting the court time. Exhibit
“ ”.
The Plaintiff took additional time to issue such subpoenas and upon attempting to do so was
told by the subpoenaed Counsel that his client would not be available for 60 days. During
this time, the Property in question in the Bankruptcy was sold creating a very costly
controversial and costly sale to the Estate.

No legal work that was undertaken by the Plaintiff that justifies the $95,000 that was already
paid. The Plaintiff already has in excess of $60,000 and is in possession of the $35,000 that
he is seeking in this action.
Further, the Plaintiff did not request a charging lien or a retaining lien prior to withdrawing
from the Bankruptcy case where the fees he is claiming originated from and therefore is not
entitled to such Liens.
Plaintiff avers that the money was removed from the jurisdiction of the Court that presided
over the subject matter of the case without noticing the court of such liens, rendering the
liens unenforceable. Besides, the Plaintiff did not reserve jurisdiction with the bankruptcy
court to consider a charging lien before accepting the money and withdrawing from the case.
The Plaintiff is not entitled to foreclose on the funds in trust that were not earned or were
derived by improper conduct. Pursuant to American Bar Association Rule 1.5; attempts to
collect unreasonable fees are improper when derived by improper Conduct as well as
Florida’s Rule 4-1.5 (a), which prohibits illegal, prohibited, or Clearly Excessive Fees and
Costs. Accordingly, the fees charged by the Plaintiff were not reasonable, were not necessary
for the request Defendants Retained the Plaintiff for and were derived in an unethical
manner.

AFFIRMATIVE DEFENSES
AFFIRMATIVE DEFENSE NUMBER 1
(FAILURE TO STATE A CAUSE OF ACTION)

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff’s Complaint and
each cause of action therein fail to state facts sufficient to constitute a cause of action against
the Defendant for which relief can be granted. The Plaintiff is not entitled to the money they

seek in the Complaint. Notably, they violated Florida rules of professional conduct (“FRCP”)
4-1.2 by failing to abide by the client’s decisions. For instance, the Defendants provided Mr.
Behar with evidence and asked him to file a claim, and get the evidence in front of the judge.
Mr. Behar failed to follow Defendants’ instructions. Mr. Barr also failed to plead
Defendants’ legitimate bad faith concerns, and instead intimidated Defendants that they did
not know about the bad faith claim.

On the other hand, contrary to FRPC 4-1.5(1), the Plaintiff charged fees obtained by
intentional misrepresentation or fraud upon the Defendants. They did this unconscionably.
For instance, in one particular month, nothing was literally done in the case except a hearing
that lasted about 2 hours and a 1 hour meeting. The Plaintiff decided he needed to review
document that he previously had, and charged about $16,000 for that month.
Also, contrary to FRCP 4-8.4(c), the Plaintiff engaged in conduct involving dishonesty,
fraud, deceit, or misrepresentation. For instance, when seeking the names of the new owners
of the association, Mr. Behar reiterated that “as soon as you sign you will get the names.”
Defendants relied on those representations made by Mr. Behar, and approved the Agreement.
However, the Defendants never received the names or the Confidentiality agreement.

AFFIRMATIVE DEFENSE NUMBER 2
(UNCLEAN HANDS)

Defendants invoke the Doctrine of Unclean Hands and allege that the Plaintiff acted in a
dishonest or fraudulent manner with respect to the dispute at issue in this case.
The Plaintiff’s conduct was unfair and not in good faith when they failed to provide the
service Defendants asked for. Notably, they acted without Defendants’ consent, failed to
follow Defendants’ instructions, failed to make requested objections of material nature.

For instance, on September 17, the trustee in the bankruptcy case filed an expedited motion
to enforce the agreement that did not exist. All parties had not agreed. That notwithstanding,
the Plaintiff insisted, falsely, that Defendants had consented to the Agreement. It is clear that
the Plaintiff settled the agreement without the consent of the Defendants. This can be seen
from the fact that he failed to object to the Expedited Motion.
AFFIRMATIVE DEFENSE NUMBER 3
(VENUE IS NOT PROPER IN BROWARD COUNTY)
Pursuant to Fla. Stat. §47.011, “[a]ctions shall be brought only in the county where the
defendant resides, where the cause of action accrued, or where the property in litigation is
located. This section shall not apply to actions against nonresidents.”
In this matter the Villa Bankruptcy case involved an association located in Port Saint Lucie,
County, Florida, and was litigated before the U.S. Bankruptcy Court for the Southern District
of Florida, West Palm Beach Division. One defendant lives in Port St Lucie County and both
the properties owned by the Defendants are in Port St. Lucie County
This matter should therefore have been filed in Port Saint Lucie County, Florida or Palm
Beach County, Florida and the Defendants intend to file a Motion for Change of Venue in
that regard.

AFFIRMATIVE DEFENSE NUMBER 4
(FAILURE TO MITIGATE DAMAGES)

The Plaintiff failed to mitigate damages in this matter.
At all times material herein, Plaintiff failed and neglected to mitigate damages so as to reduce
and or diminish his claim. Notably, the Plaintiff had an obligation to abide by the dictates of

the rules of professional conduct, which Plaintiff was subjected to. Instead, Plaintiff further
carried out blatant violations of the said rules, as already alleged hereinabove.

AFFIRMATIVE DEFENSE NUMBER 5
(FAILURE TO ABIDE BY CLIENT’S DECISIONS)

The Plaintiff failed to abide by client’s decisions, and thus violated Florida Rules of
Professional Conduct, Rule 4-1.2, which requires that a lawyer must abide by a client’s
decision concerning the objectives of representation and reasonably consult with the client as
to the means that they are to be pursued and abide by a client’s decision whether to settle a
matter.
The Defendants provided Mr. Behar with evidence and asked him to file a claim, and get the
evidence in front of the judge. Mr. Behar failed to follow Defendants’ instructions. Mr. Barr
also failed to plead Defendants’ legitimate bad faith concerns, and instead intimidated
Defendants that they did not know about the bad faith claim.
AFFIRMATIVE DEFENSE NUMBER 6

(CHARGING A CLEARLY EXCESSIVE FEE AND COSTS)

Florida Rules of Professional Conduct, Rule 4-1.5, provides that a lawyer may not charge a
clearly excessive fee or costs.
The Plaintiff failed to abide by the Defendants’ decisions, and was therefore not entitled to
the amount of fees they claimed. The Plaintiff now demands the amounts from the Trust
Account, after already being paid large amounts. It follows; the Plaintiff is seeking additional
and clearly excessive fees or costs. Fees and cost are not reflective of what Defendants asked
Plaintiff to do and were derived by improper conduct.

AFFIRMATIVE DEFENSE NUMBER 7

(DURESS)

The Defendants did not agree to the terms of the Settlement Agreement. The Plaintiff told
the Defendants that if the Settlement Agreement was not signed he would not represent them.
The Defendants sent emails telling the Plaintiff that they were under duress, and that he was
using undue influence to get them to sign, including telling the Defendants that the
Bankruptcy Trustee is going to file a motion to enforce the settlement. Defendants told
Plaintiff they can’t do that as there was no agreement. Plaintiff contended there was an
agreement, however the Defendants had not given consent to Plaintiff and did not agree to
the settlement. Plaintiff badgered the Defendants with numerous calls, emails and texts and
increased the bill and used undue influence to obtain a signature for the Settlement
Agreement. The Settlement Agreement was therefore not entered into voluntarily, and it was
the desire of Mr. Mabe and Ms. Zawadzki to have the funds that were paid into the Trust
Account of BGG.
Immediately, and with no approval from Mr. Mabe and Ms. Zawadzki, the Bankruptcy
Trustee filed an Expedited Motion to Approve/Enforce the Settlement Agreement.
Defendants requested Plaintiff to object to this motion. Plaintiff refused to object with the
knowledge there was not an agreement of all parties. Trustee received an Order granting said
motion.
The Plaintiff stated that an Order granting said motion (EFC 560) “was granted on
October 24, 2021. However this is not true because (ECF 560) was docketed on September
17, 2021 and the Motion to Approve Settlement Agreement was approved on October 4,
2021 (EFC 586) in original complaint this was in error as 585. Exhibit “B”.

Throughout the Villa Bankruptcy case, BGG refused to file a pleading to seek a dismissal
of the entire bankruptcy case and fought off numerous Defendants’ requests to seek an
Evidentiary Hearing in which to submit evidence to the Bankruptcy Court. Exhibit “C”.

ADDITIONAL DEFENSES

Defendant reserves the right to assert additional defenses and claims as they become
evident through discovery.
WHEREFORE, DEFENDANT demands judgment against the Plaintiff as follows:
a) Dismissal of the Complaint in its entirety;
b) Costs and reasonable attorneys’ fees and cost as permitted by law, contract or applicable
statute(s); and
c) Such further legal and equitable relief as this Court may deem just and proper.

COUNTERCLAIM
JURISDICTION & VENUE

This is an action for damages in excess of $30,000, exclusive or interest, costs and
attorneys’ fees.
Venue is proper in this Court as this is an action for Breach of Contract, Unfair and
Deceptive Trade Practices and Intentional Infliction of Emotional Distress, and seeking
an award of money damages, including actual damages and reasonable attorneys’ fees
and costs; an award of compensatory damages under common law, all stemming from
conduct that occurred in Florida, in Saint Lucie County, Florida.
By filing this Counterclaim, the Defendants/Counter-Plaintiffs do not waive any
arguments as to jurisdiction and venue, or waive the right to file a Motion For Change of
Venue.

The previously set forth Statement of Facts Common to Affirmative Defenses and
Counterclaim are fully incorporated as if fully set forth herein.
CAUSES OF ACTION
COUNT I
BREACH OF CONTRACT
Defendant/Counter-Plaintiff repeats and realleges the allegations of the preceding
paragraphs, as through fully set forth herein and sue Plaintiff/Counter-Defendant for
Breach of Contract as follows:
Plaintiff/Counter-Plaintiff materially breached the Retainer Agreement by failing to
undertake or perform the services required thereunder and by failing to fulfill the
obligations thereunder.
As a direct and proximate result of the material breach of contract, Defendant/Counter-
Plaintiff have incurred damages, substantially in excess of $30,000.00, which included,
inter alia, direct and consequential damages.
WHEREFORE, Defendant/Counter-Plaintiff respectfully requests that this Court declare that
Plaintiff/Counter-Defendant breached their contractual agreement, and award
Defendant/Counter-Plaintiff with an amount fair and just to account for its money damages,
interest, reasonable attorneys’ fees, and costs incurred herein, and for such other relief as this
court deems just and proper.

20
COUNT II

VIOLATIONS OF FLORIDA’S UNFAIR AND DECEPTIVE TRADE PRACTICES ACT,

CHAPTER 501, PART II, FLORIDA STATUTES

Defendant/Counter-Plaintiff repeats and realleges each and every allegation in the above
paragraphs, as if set forth fully herein.
Pursuant to § 501.204 (1), Florida Statutes, “Unfair methods of competition,
unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct
of any trade or commerce are hereby declared unlawful”
As set forth in the above paragraphs, Plaintiff/Counter-Defendant has engaged in a
pattern of misinformation, deception and unconscionable acts and practices, and unfair
and deceptive acts and practices in the conduct of trade and commerce with regards to the
lease agreement and the failure to make repairs to the Property.
Pursuant to § 501.211 (1), Florida Statutes, “Without regard to any other remedy or
relief to which a person is entitled, anyone aggrieved by a violation of this part may bring
an action to obtain a declaratory judgment that an act or practice violates this part and to
enjoin a person who has violated, is violating, or is otherwise likely to violate this part.”
Furthermore, pursuant to § 501.211 (2), Florida Statutes, “In any action brought by a
person who has suffered a loss as a result of a violation of this part, such person may
recover actual damages, plus attorney’s fees and court costs as provided in s. 501.2105 .”
Plaintiff/Counter-Defendant has willfully engaged in the acts and practices as outlined in
the above paragraphs, when they knew or should have known that such acts and practices
were unfair and deceptive or otherwise prohibited by law.

These above-described acts and practices of the Plaintiff/Counter-Defendant have injured
and will likely continue to injure and prejudice the Defendant/Counter-Plaintiff.
Unless the Plaintiff/Counter-Defendant is temporarily and permanently enjoined from
engaging further in the acts and practices complained of herein, the Plaintiff/Counter-
Defendant’s actions will result in irreparable injury to the Defendant/Counter-Plaintiff for
which there is no adequate remedy at law.
As a direct and proximate result of Plaintiff/Counter-Defendant’s unfair and deceptive
practices, Defendant/Counter-Plaintiff have incurred damages substantially in excess of
$30,000.00, which include, inter alia, direct and consequential damages, extra expenses,
loss of profits, attorney’s fees and damages.
WHEREFORE, Defendant/Counter-Plaintiff request that this Court enter judgment in its favor
and against Plaintiff/Counter-Defendant for compensatory damages substantially in excess of
$30,000.00, including direct and consequential damages, extra expenses, loss of profits,
attorney’s fees and damages and for temporary and injunctive relief prohibiting
Plaintiff/Counter-Defendant from continuing to engage in activities against the
Defendant/Counter-Plaintiff.

COUNT III

BREACH OF FIDUCIARY DUTIES

Defendants/Counter-Plaintiffs repeat and reallege each and every allegation in the above
paragraphs, as if set forth fully herein.
The elements of a claim for breach of fiduciary duty are: the existence of a fiduciary
duty, and the breach of that duty such that it is the proximate cause of the plaintiff’s

damages. See Gracey v. Eaker, 837 So. 2d 348, 353 (Fla. 2002) and Fla. Std. J. Inst.
(Civ.) 451.5

A breach of fiduciary duty can be negligent or intentional. See Palafrugell Holdings, Inc.
v. Cassel, 825 So. 2d 937, 939 n. 1 (Fla. 3d DCA 2001)
The existence of a fiduciary duty can be proven if a relationship exists between the
Plaintiff and Defendant in which the Plaintiff put his/her/its trust in Defendant to protect
financial or property interests, secrets, confidences or private information and Defendant
accepts that trust. See Fla. Std. J. Inst. (Civ.) 451.7
Plaintiff/Counter-Defendant, by and through its employees, agents, representatives and
collectors owed Defendant/Counter-Plaintiff a fiduciary duty and the breach of that duty
is the proximate cause of the damages of the Defendant/Counter-Plaintiff.
WHEREFORE, Defendant/Counter-Plaintiff request that this Court enter judgment in its favor
and against Plaintiff/Counter-Defendant for compensatory damages substantially in excess of
$30,000.00, including direct and consequential damages, extra expenses, loss of profits,
attorney’s fees and damages, and for such other relief as this court deems just and proper.

COUNT IV
LEGAL MALPRACTICE

Defendants/Counter-Plaintiffs repeats and reallege each and every allegation in the above
paragraphs, as if set forth fully herein.
The Plaintiff/Counter-Defendant was employed by the Defendant/Counter-Plaintiff as
their legal counsel.
The Plaintiff/Counter-Defendant neglected a reasonable duty owed to the
Defendant/Counter-Plaintiff.

The negligence of the Plaintiff/Counter-Defendant was the proximate cause of the
Defendant/Counter-Plaintiff.
The Defendant/Counter-Plaintiff compensatory damages – and – to the extent applicable
– special damages, include, but are not necessarily limited to: a) the loss on the Villa
Bankruptcy, b) the loss of monies paid to the Plaintiff/Counter-Defendant, c) attorneys’
fees in defending against legal actions related to the Villa Bankruptcy and e) ongoing
financial damages related to the Villa Bankruptcy.
WHEREFORE, the Defendant/Counter-Plaintiff demand entry of a Final Judgment against the
Plaintiff/Counter-Defendant, jointly and severally, due to legal malpractice and in that Final
Judgment award the Defendant/Counter-Plaintiff its compensatory damages, special damages,
the costs of this action, pre and post judgment interest, and such other relief that the Court deems
just and equitable.

DEMAND FOR JURY TRIAL

Defendants/Counter-Plaintiffs demand trial by jury of all issues so triable as of right.

DATED this ___day of January, 2022.

Respectfully submitted,
/s/Merrilee

Zawadzki

Merrilee Zawadzki
101 S. Union Street,

Ste. 106

Plymouth, MI 48170

Respectfully

submitted,

/s/Joseph Mabe
Joseph Mabe
174 SW Colesbury

Avenue

Port St. Lucie, FL

34953

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via
the indicated method on this __ day of January, 2022 on the following parties:

Via Florida E-portal
BEHAR, GUTT & GLAZER, P.A.
IRA GUTT, ESQ.
STACEY L. GLADDING, ESQ.
DCOTA A-350
1855 GRIFFIN ROAD
FORT LAUDERDALE, FL 33004
E-mail: collections@bgglaw.com
igutt@bgglaw.com
sgladding@bgglaw.com

/s/Merrilee Zawadzki

/s/Joseph Mabe

COMPOSITE EXHIBIT “A”

EXHIBIT “B”

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