MOTION FOR LEAVE TO AMEND PLEADINGS

mukiialice64
Motions
May 18, 2023
IN   THE   CIRCUIT   COUT   FOR   THESEVENTEENTH JUDICIAL CIRCUIT INAND    FOR     BROWARD      COUNTY,FLORIDACASE NO: XXX Division 3  

XXX,

a Florida professional association,

            Plaintiff,

v.

XXX

           Defendant

__________________________________________

MOTION FOR LEAVE TO AMEND PLEADINGS

Now Comes the Defendant, XXX, pursuant to Fla. R. Civ. P. 1.190 and files this Motion to Amend the Pleadings. Defendant seeks to correct any of the perceived deficiencies noted in Plaintiff’s Motion to Strike Defendant’ Answer and Counterclaim, without the expense and waste of time spent litigating the issues raised by the said Motion.

  1. The substance of this action began when the Defendant retained the Plaintiff to represent Defendant in a matter with the Villas of Windmill Point Property Owners Association. A Retainer Agreement was entered to that effect.
  2. During the proceeding at the case, the Plaintiff failed to meet the expectations of the Defendant as per the Retainer Agreement, which led to contentions about the payment for the Plaintiff. This contention led to the instant case filed on December 12, XXX, which case the Plaintiff filed against the Defendant to attempt to obtain money, which they (Plaintiff) are not entitled to.
  3. Accordingly, on or about December 29, 2021, the Defendant filed an Answer, Affirmative Defenses, and Counterclaim to the Plaintiff’s Complaint.
  4. The Plaintiff then filed a Motion to Strike Defendant’s Affirmative Defenses, Motion to Strike Scandalous Matters, Motion to Dismiss Counterclaim, and Motion for More Definite Statement.
  5. Defendant, in addition to filing a Response to the said Plaintiff’s Motion, hereby files this Motion for Leave to Amend the Answer and Counterclaim.
  6. Under Florida law, leave of court to file an amended pleading shall be given freely when justice requires. See Fla .XXX. Absent exceptional circumstances, motions for leave to amend pleadings should be granted. Thompson v. Publix Supermarkets, Inc., 615 So. 2d 796, 797 (Fla. 1st DCA 1993).
  7. Further, refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.” See Thompson. at 1044-45. “The primary consideration in determining whether a motion for leave to amend should be granted is a test of prejudice. . . .” Id.
  8. Courts are directed to be “liberal in permitting” a motion for leave to amend, made at or before a motion for summary judgment. See XXX. Accordingly, motions for leave to amend at this stage in litigation will almost always be granted by the court in its discretion.
  9. Moreover, “the decision to grant leave to amend rests upon the trial court’s discretion, and any doubts should be resolved in favor of the amendment.” Overnight Success XXXX. “However, the trial court’s discretion should be exercised in accordance with the public policy of this state to freely allow amendments so that cases may be resolved on their merits .”XXX.
  10. The Court to consider three factors in determining whether to grant leave to amend: (1) whether the opposing party will be prejudiced if the amendment is permitted; (2) whether the party seeking leave to amend is abusing the process or privilege; and (3) whether the amendment is futile. See Life Gen. Sec. Ins. XXX).
  11. The Opposing Party will not be prejudiced if the Amendment is Permitted
  12. Courts grant Motions to Amend where there is no prejudice to the other party in the case that could rise to the level required to prevent the amending party from amending his pleading. XXX,
  13. In light of the foregoing, Defendant avers that first, no party will be prejudiced by the granting of this Motion. This case is set for trial in March, which is about one month away. Defendant is therefore entitled to amend their Answer and Counterclaim. See XXX.
  1. There is no abuse of the privilege to amend.
  2. Florida courts may deny the party the right to amend in the case of numerous amendments to the complaint regarding the same cause of action. See XXX (affirming the trial court’s decision to deny amendment for the seventh time).
  3. In the instant action, Plaintiff cannot claim any surprise caused by the proposed amendment because the Amended Answer and Counterclaim features the same basic parties, issues, and facts already at issue in this lawsuit.
  4. The Amendments proposed by the Defendant are not futile.
  5. Defendant further avers that the proposed amendment would not be futile. An amendment is futile when the proposed amendment would not state a cause of action. See XXX; see also Quality Roof Servs., Inc. v. XXX. In the instant action, Defendant maintains that the proposed amendments are not insufficient as a matter of law and do not fail to state a cause of action. Primarily, these amendments buttress already sound factual allegations and legal claims asserted against the Plaintiff (in the counterclaim), and therefore should correct any of the perceived deficiencies noted in Plaintiff’s Motion to Strike Defendant’s Answer and Counterclaim, without the expense and waste of time spent litigating the issues raised by the said Motion. Accordingly, the Defendant’s Counterclaim raises the following causes of action: Breach of Contract, Violations of Florida’s Unfair and Deceptive Trade Practices Act, Chapter 501, Part II, XXX Statutes,  Breach of Fiduciary Duties, Legal Malpractice, Fraud, and Intentional Infliction of Emotional Harm.
  6. Accordingly, Defendant’s request that this Court grant them leave to file their Amended Answer and Counterclaim, which is attached hereto as Exhibit “A,” and enter an Order deeming the attached Amended Answer and Counterclaim filed.

            WHEREFORE, Defendant respectfully requests that this Court enter an Order granting Defendant’s leave to file their Amended Answer and Counterclaim, which is attached hereto as Exhibit “A;” deeming the attached Amended Answer and Counterclaim filed, and granting such other relief as this Court deems just and proper under the circumstances.

Dated: ____________

 
   Respectfully submitted,                                                                                     /s/XXX                                                                                 XXX                                                                                   101 S. Union Street, Ste. 106                                                                                    Plymouth, MI48170                                                                                        

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, XXX on the following parties:

Via  XXX E-portal

XXX

EXHIBIT A

AMMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM

 
  IN   THE   CIRCUIT   COUT   FOR   THESEVENTEENTH JUDICIAL CIRCUIT INAND    FOR     BROWARD      COUNTY,FLORIDACASE NO: XXX Division 3  

XXX.,

a XXX professional association,

            Plaintiff,

v.

XXX

           Defendant

__________________________________________

AMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTER CLAIM

COME NOW, the Defendant, XXX (“Defendant” or “XXX”), appearing pro se, and files this Amended Answer, Affirmative Defenses and Counterclaim to Plaintiff’s Complaint, as follows:

JURISDICTION AND VENUE

  1. Admit the allegations in paragraph 1 of the Complaint to the extent it purports to be an action for damages.
  2. Defendant avers that Paragraph 2 of the Complaint contains information unknown to the Defendant, and is therefore denied.
  3. Defendant admits the allegations in paragraph 3 of the Complaint that XXX is a resident of Wayne County, but deny she is sui juris, as she has a power of attorney used in the underlying case.
  4. Defendant admits the allegations in paragraph 4 of the Complaint that XXX is a resident of XXX and is XXX. However, Defendant XXX filed a Motion to remove his pleadings. Therefore, this Answer is only drafted by Defendant XXX .
  5. Defendant denies the allegations in paragraph 5 of the Complaint and demand strict proof of the averments thereof. Defendant states 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 XXX, this is a dispute that involves Port Saint Lucie, Florida and was litigated from the XX. Bankruptcy Court for Southern District of XXX.  West Palm Beach Division. Besides, Defendant XXX owns property at the same location in Port St Lucie that the bankruptcy proceedings were based on. Therefore, Defendant challenges the venue of this claim and aver that the Plaintiff filed the case at the wrong venue.
  6. Defendant denies the allegations in paragraph 6 of the Complaint.
  7. Defendant denies the allegations in paragraph 7 of the Complaint.

ALLEGATIONS COMMON TO ALL COUNTS

  • Defendant agrees in part and denies in part, the allegations in paragraph 8 of the Complaint. It is Admitted that XXX, & XXX. (“BGG”) and the Defendant 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.
  • Defendant admits 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. Defendant agrees that BGG preformed ongoing services. However, they deny that there was no objection. See attached. (Exhibit “A”).
  • Defendant admits in part and denies in part the allegations in paragraph 11 of the Complaint. Defendant admits that an order granting Expedited motion was issued. However, they deny that it was (ECF 560) and deny that it was entered on October XXX.
  • Defendant admits the allegations in paragraph 12 of the Complaint as to the amount deposited into the trust account.
  • Defendant denies the allegations in paragraph 13 of the Complaint.
  • Defendant avers that there is insufficient information to admit or deny the allegations in paragraph 14 of the Complaint.
  • Defendant admits the allegations in paragraph 15 of the Complaint that the Plaintiff provided a notice to the Defendant.
  • Defendant denies the allegations in paragraph 16 of the Complaint.
  • Defendant denies the allegations in paragraph 17 of the Complaint.

COUNT 1

FORECLOSURE OF ATTORNEY CHARGING LIENS

  1. Defendant admits the allegations in paragraph 18 of the Complaint that this purports to be an action for damages.
  2. Defendant admits and denies the allegations in paragraph 19 of the Complaint. Defendant admits that an agreement was entered into. However, they deny that the length of time for performing the services was part of the agreement.                                                               
  3. Defendant denies the allegations in paragraph 20 of the Complaint.
  4. Defendant denies the allegations in paragraph 21 of the Complaint.
  5. Defendant denies the allegations in paragraph 22 of the Complaint.
  6. Defendant denies the allegations in paragraph 23 of the Complaint.

COUNT II

FORECLOSURE OF ATTORNEY RETANING LIEN

  • Defendant admits the contents of paragraph 24 of the Complaint that this purports to be an action for damages.
  • Defendant admits and denies the contents of paragraph 25 of the Complaint. Defendant admits that an agreement was entered into. However, he denies that the length of time for performing the services of the agreement.
  • Defendant denies the allegations in paragraph 26 of the Complaint.
  • Defendant denies the allegations in paragraph 27 of the Complaint.
  • Defendant denies the allegations in paragraph 28 of the Complaint.
  • Defendant denies the allegations in paragraph 29 of the Complaint.

COUNT III

BREECH OF CONTRACT

  • Defendant admits the contents of paragraph 30 of the Complaint to the extent that what appears to be a copy of a retainer agreement is attached. Defendant avers that there is insufficient information to respond to rest of the allegations therein.
  • Defendant denies the allegations in paragraph 31 of the Complaint.
  • Defendant denies the allegations in paragraph 32 of the Complaint.

COUNT IV

OPEN ACCOUNT

  • Defendant avers that there is insufficient information to admit or deny the allegations in paragraph 33 of the Complaint.
  • Defendant denies the allegations in paragraph 34 of the Complaint.

COUNT V

ACCOUNT STATED

  •  Defendant admits the allegations in paragraph 35 of the Complaint to the extent that before this action there were business transactions. However, the Defendant denies the resulting balances.
  • Defendant admits in part the allegations in paragraph 36 of the Complaint to the extent that statements were sent. However, the Defendant avers that there is insufficient information to respond to rest of the allegations therein.
  • Defendant denies the allegations in paragraph 37 of the Complaint.

COUNT VI

SERVICES RENDERED/ QUANTUM MERUIT

  • Defendant denies the allegations in paragraph 38 of the Complaint.
  • Defendant denies the allegations in paragraph 39 of the Complaint.

COUNT VII

UNJUST ENRICHMENT

  • Defendant denies the allegations in paragraph 40 of the Complaint.
  • Defendant denies the allegations in paragraph 41 of the Complaint.
  • Defendant denies 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 XXX. (The “Plaintiff”, “Plaintiff/Counter- Defendant” or “BGG” or “Mr. Behar”), on December   1, XXX.
  • In this matter, XXX (“the Defendant/Counter-Plaintiff” or “Ms. XXX”) and JOSEPH MABE on or   about February 10, XXX 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. Exhibit “B”.
  •  Defendant/Counter Plaintiff, together with JOSEPH MABE, paid a consultation fee of $800.00 on or about February 2, XXX to Plaintiff/Counter-Defendant to review documents and Evidence and discuss Defendant/Counter Plaintiff’s objectives involving a matter with Villas of Windmill Point II Property Owners Association (“the Villas”). The meeting lasted just over 3 hours.
  •  The documents and evidence was dropped off at Mr. Behar’s office. Later, 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 Defendant/Counter-Plaintiff’s Objectives and the excessive billing. Defendant made both verbal and written concerns about the fees. Exhibit “C” 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. XXX and $17,500 for Ms. XXXi.
  • Defendant/Counter-Plaintiff entered into a settlement agreement, which provided that the funds be placed into the account of BGG. Defendant/Counter-Plaintiff did not give an option as to the disbursement of these funds. The Settlement Agreement was not entered into voluntarily.
  • On August 17, 2021, the Bankruptcy Judge Paul G. Hyman held a Settlement Conference. Mr. Behar was in attendance for part of the conference where some issues were discussed with Defendant. After that, Mr. Behar left to attend a funeral. Once Mr. Behar left, additional settlement negations took places that were not shared with Defendant. Mr. Behar made no arrangements to continue so his clients could participate in the negotiations. Further, he made no arrangements to ensure his clients would be fully represented in this matter. It was a global agreement that involved all parties. It follows; Defendant was not involved in such negations, which ought to include all parties. The Agreement was entered without the input, consent and/or approval of the Defendant. Defendant only learned that such negotiations took place after the fact. The trustee threatened to file (and later filed) a motion to force the agreement when Defendant were still negotiating a settlement and asked Mr. Behar to object to as there was no settlement that all parties had agreed to. At this same meeting, Judge Hyman scheduled a follow up conference for October 1st as there was an original conflict for the 4th and 5th. as there was not an agreement reached that date. 
  • Besides, Mr. Behar did not also participate since he was away for the funeral. Consequently, on August 25, XXX, a Motion in part to allow claims for voting purposes was filed. (Docket 539). Exhibit “D”. The Defendant severally asked Mr. Behar to object to the said Motion, but he did not object. It is also worth noting that later, when the Defendant was reviewing the record, they observed that the document was drafted as if there was only one party in attendance. Instead, XXX and Defendant XXXi through her power of attorney were in attendance. The Plaintiff also failed to object to page 5 of the Motion, which stated that he did not participate in the final numbers, when he did not participate in the negotiations at all.
  • Further, on September 17, XXX, the Trustee filed a Motion to Enforce the Agreement. Again, Defendant asked Plaintiff (both verbally and by email) to object to the Motion, on the ground that all parties did not participate in the Agreement. Exhibit “E”.
  • As to the Settlement; there was no global agreement consented to, or signed by all Parties on September 17, XXX.
  • Mr. Behar states, that an Order granting motion (EFC 560) “was granted on October 24, XXX. This is not true. (ECF 560) was docketed on September 17, XXX.The Motion was approved on September 29, 2021 and (EFC 585) was signed on October 1, 2021 and entered on October 4, 2021 (Exhibit F).
  •  Proceeds totaling $35,000 from the settlement were never dispersed to Ms. XXX or Mr. XXX.
  • 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 Defendant/Counter- Plaintiff. Exhibit “G” is one example of these requests.
  • On Mr. Behar’s initial meeting with Mr. XXX and Ms. XXX representative, he spent in excess of 3 hours looking through Defendant/Counter-Plaintiff’s Evidence and Documents. He shared with XXX and XXX 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, XXX, Defendant Counter-Plaintiff was discussing objections to a motion being held the next day in regards to a confirmation set for July 21, XXX. Defendant/counter Plaintiffs had previously asked Mr. Behar to file an Objection to that Motion, which Objection did not get filed. The Plaintiff refused to file pleadings/actions upon numerous requests to submit evidence and to object to motion. Accordingly, Mr. Behar was thwarting the efforts and refusing to submit the information and the evidence. On that day, Mr. Behar informed the Defendant that his wife was diagnosed with COVID so he had to cancel the discussions and continue the hearing. This Objection and the evidence never got heard, to the detriment of the Defendant/Counter –Plaintiff. Exhibit “H”. (Court Docket # 505). ).
  • Defendant/Counter-Plaintiff 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 “I”.
  • It should be noted that the Trustee falsely represented to the bankruptcy Court that there was a Settlement Agreement, even before the Defendant/Counter-Plaintiff had ever agreed to it. In essence, no agreement existed since not all of the parties participated in the alleged agreement. Therefore, Defendant avers that no agreement existed at the time the motion was filed on September17, XXX. The Plaintiff refused to Object to the filing of the motion and did not respond to emails sent to him about it. (Exhibit “J”). 
  • There never should have been an Expedited Motion to Approve a Settlement as parties were still negotiating. Defendant made numerous requests both verbal and in emails, for the Plaintiff to object to the Expedited Motion. (Exhibit “J”).
  •  The Plaintiff/Counter-Plaintiff did not have the consent from the Defendant/Counter-Plaintiff to settle.  Defendant made communications both verbally and in Email, which showed they were to be the ones that decided all the issues. (Exhibit “J”).
  • Accordingly, Defendant had not agreed on a settlement. Instead, Defendant was coerced into the Agreement. She did not settle on her own accord. She was under duress, and was financially threatened. At the same time, the legal billing was extremely exaggerated and was not reflective of the services the Defendant requested. Notably, the Plaintiff told the Defendant that they would not represent them if they did not sign the agreement. The Plaintiff would not represent the Defendant in the continued proceeds which would have been an evidentiary hearing where all of the evidence that had been suppressed by the Plaintiff would be exposed.
  •  Defendant 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. The billing was not reflective of the services the Defendant told him they wanted.  Notably, the way the billing was written did not reflect the amount the parties agreed or the rate thereof.
  • Plaintiff has been paid over $60,000 by Mr. XXX and Ms. XXX 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. XXX and Ms. XXX 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. Plaintiff has already been paid $60,000, and added $35,000 from the Settlement.
  • Mr. XXX and Mr. XXX 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 Defendant/Counter-Plaintiff that she would get the names immediately upon signing. The Plaintiff further told XXX and XXX they had to sign the Settlement agreement before they could get the names. XXX and XXX 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. The Defendant eventually signed based on Mr. Behar’s representations.
  • As part of the settlement agreement a confidentiality agreement was required to be signed   prior to giving the names. Mr. Behar had asked A/C Villas on a couple of occasions for the names. The Defendant therefore reasonably believed they would get the names, following the Plaintiff’s representations.  Accordingly, XXX and XXX continually asked Mr. Behar for this agreement. He failed to provide it. Mr. Behar continued to assure Defendant 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 despite XXX repeated representations. Exhibit “K”.
  • As the day approached for the expedited hearing to enforce the Settlement Agreement, XXX and XXX 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. XXX 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.” Defendant/Counter plaintiff relied on those representations made by Mr. XXX. Mr. XXX continued to pressure Defendant/Counter-Plaintiff into signing the Settlement Agreement. Under extreme pressure and duress Defendant/Counter-Plaintiff signed so that they could get names prior to the Expedited hearing.
  • The foregoing notwithstanding, Defendant/Counter Plaintiff never received the names or the Confidentiality agreement. They were unfairly deceived, misled and pressured by the improper motion, which was expedited to force a Settlement that Mr. Behar refused to object to. Exhibit “J”.
  •  Further, the Plaintiff did not object to the approval of the agreement without the production of the names requested by Defendant/Counter- Plaintiff. This happened despite a signed agreement to give the Defendant the names subject to a signed confidentiality agreement. Such agreement was never presented to Defendant prior to court approval which was also not objected to.[pc1] 
  • 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, XXX. Exhibit “L”(the transcript)and Exhibit “M” (the Court Order).
  • Mr. XXX and Ms. XXX further asked the Plaintiff to request on numerous occasions from the Bankruptcy court, recovery of statutory damages under Fla. Stat. 720.303. Essentially, Defendant was asking Plaintiff to request recovery from the court. However the Plaintiff failed to diligently pursue the recovery of these damages to the detriment the Defendant/Counter-Plaintiff. The same Court awarded creditors in this same bankruptcy action 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. Defendant/Counter-Plaintiff requested on numerous occasions that Plaintiff/Counter-Defendant properly request recovery pursuant to Defendant request.  Plaintiff did not properly pursue recovery to the Defendant/Counter –Plaintiff’s determent 
  • On or about May 15, 2021, Plaintiff filed an erroneous motion for the production of Documents.  Consequently, when this was heard on or about June 29, 2021, the Judge told Mr. Behar that with his years of experience, a 2004 examination was not the proper request, and that he should have known better. The Judge then told him to do the proper request of subpoenas.. The Defendant was charged for this wrong filing including for wasting the court time. The Petitioner also included the costs for work leading to the motion, in the fees. Exhibit “N”.   
  • 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. Thus changing the direction of the case to the detriment of the Defendant.
  • 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 Defendant Retained the Plaintiff for and were derived in an unethical manner. In addition this was not a contingency case as asserted by Plaintiff’s claim of quantum meruit as if a contingency case.  A contingency never arose since the attorney found a way to bill  and to take all of the proceeds of the settlement by unnecessary and repetitive work to appear as a  justification for excessive bills.
  • Defendant further avers that the Plaintiff failed to correct the improper settlement Agreement ratified on August 17th. It is worth noting that no Agreement existed until the final party emailed a copy of the signed Agreement dated September 24, 2021. However, the Plaintiff did not present the September 24th Agreement to anyone. He was aware as he received it personally by email 10 full days after the Trustee filed court docket number 560, which inaccurately stated the agreement and further stated, erroneously, that an agreement was reached at a judicial settlement conference on August17, 2021.It is worth noting that this was a global agreement based on all topics and that the negations continued after that particular meeting that Mr. Behar left early. It should also be noted that Mr. Behar did not address this untrue statement as well. Further, Mr. Behar was also aware when court document #572 was filed on 9/28/21, which states on page 4: “THIS SETTLEMENT AGREEMNT(“Agreement”) is entered into on this 17 th day of September, XXX, solely in his capacity as Chapter 11 Trustee herein: ii) George XXX iii) Carlo Patti (“Patti”), iv) AC Villas”) , v) XXXX, (collectively the “Parties”). Plaintiff was aware this was not accurate because at least 1 of his clients had not agreed or signed until 10 days later when he received their email on September 27, XXX.

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 Defendant 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 Defendant’s instructions. Mr. Barr also failed to plead Defendant’s legitimate bad faith concerns, and instead intimidated Defendant that she 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 Defendant. 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.” Defendant relied on those representations made by Mr. Behar, and approved the Agreement. However, the Defendant never received the names or the Confidentiality agreement.

AFFIRMATIVE DEFENSE NUMBER 2

(UNCLEAN HANDS)

  • Defendant invokes the Doctrine of Unclean Hands and alleges 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 Defendant asked for. Notably, they acted without Defendant’s consent, failed to follow Defendant’s 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 Defendant had consented to the Agreement. It is clear that the Plaintiff settled the agreement without the consent of the Defendant. This can be seen from the fact that he failed to object to the Expedited Motion. It can also be seen from the motion to approve the agreement or assure clients were represented at the settlement hearing.

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. The Defendant lives in Port St Lucie County and the property owned by the Defendant is 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 Defendant 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. For instance, Plaintiff ought to abide by Florida Rules of Professional Conduct Rule 4-1.3 provides that a lawyer shall act with reasonable diligence and promptness in representing a client. 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 XXX 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 Defendant provided Mr. XXX with evidence and asked him to file a claim, and get the evidence in front of the judge. Mr. XXX failed to follow Defendant’s instructions. Mr. Barr also failed to plead Defendant’s legitimate bad faith concerns, and instead intimidated Defendant that she did not know about the bad faith claim. The bad faith claims were enough for dismissal of the case if properly and timely asserted. [pc2] 

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 Defendant’s 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 Defendant asked Plaintiff to do and were derived by improper conduct. Notably, the Plaintiff acted without Defendant’s consent, failed to plead Defendant’s legitimate bad faith concerns, and failed to make requested objections of material nature.

AFFIRMATIVE DEFENSE NUMBER 7

(DURESS)

  1. The Defendant did not agree to the terms of the Settlement Agreement.  The Plaintiff told the Defendant that if the Settlement Agreement was not signed he would not represent her. The Defendant 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 Defendant that the Bankruptcy Trustee is going to file a motion to enforce the settlement. Defendant told Plaintiff she can’t do that as there was no agreement.  Plaintiff contended there was an agreement, however the Defendant had not given consent to Plaintiff and did not agree to the settlement.  Plaintiff repeatedly called the Defendant, sent her 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. XXX and Ms. XXX to have the funds that were paid into the Trust Account of BGG. Numerous emails were sent to the Plaintiff from Defendant noting that they were not in agreement.
  2. Immediately, and with no approval from Mr. XXX and Ms. XXX, the Bankruptcy Trustee filed an Expedited Motion to Approve/Enforce the Settlement Agreement. Defendant 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.
  3. The Plaintiff stated that an Order granting said motion (EFC 560) “was granted on October 24, XXX. However this is not true because (ECF 560) was docketed on September 17, 20XX 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 “F”.
  4. Throughout the Villa Bankruptcy case, BGG refused to file a pleading to seek a dismissal of the entire bankruptcy case and fought off numerous requests by the Defendant to seek an Evidentiary Hearing in which to submit evidence to the Bankruptcy Court. Exhibit “C”. There was a motion for one evidentiary hearing regarding the issue of discovery and the bulk buyer.  It took Defendant months to get the Plaintiff to file this motion and it was never heard as the Plaintiff pushed the Defendant towards settlement.

ADDITIONAL DEFENSES

  1. 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:

  1. Dismissal of the Complaint in its entirety;
  2. Costs and reasonable attorneys’ fees and cost as permitted by law, contract or applicable statute(s); and
  3. Such further legal and equitable relief as this Court may deem just and proper.

COUNTERCLAIM

JURISDICTION & VENUE

  1. This is an action for damages in excess of $30,000, exclusive or interest, costs and attorneys’ fees.
  2. Venue is not proper in this Court. In this action, the Villa Bankruptcy case involved an association located in Port Saint Lucie, County, XXX, and was litigated before the U.S. Bankruptcy Court for the Southern District of XXX, West Palm Beach Division. One of the parties to the Retainer Agreement lives in Port St Lucie County and both the properties owned by the Defendant and XXX 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 Defendant intend to file a Motion for Change of Venue in that regard.  
  3. By filing this Counterclaim, the Defendant/Counter-Plaintiff does not waive any arguments as to jurisdiction and venue, or waive the right to file a Motion for Change of Venue.
  4. 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 re-alleges 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-Defendant materially breached the Retainer Agreement by failing to undertake or perform the services required thereunder and by failing to fulfill the obligations thereunder. For instance, Paragraph 1 of the Retainer Agreement provides that “Counsel will review, prepare, negotiate, and revise all documentation related to the matter.” The Defendant 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 Defendant’s instructions. Further, Mr. Behar fought off numerous requests by the Defendant to seek an Evidentiary Hearing in which to submit evidence to the Bankruptcy Court. Although there was a Motion filed in that regard, the Plaintiff did not properly advocate on the Defendant’s behalf. The Defendant duly fulfilled their obligations by paying the bill which was done even though they were not obligated to pay due to the Plaintiff’s conduct. The Defendant is therefore not entitled to the money he claims in Plaintiff’s Complaint because she failed to represent Defendant in the negotiations and failed to object to the improper motions. Defendant
  • Paragraph 4 of the Retainer Agreement obligated the Plaintiff to keep the Defendant informed of the status of the case. The Plaintiff breached the Agreement when he consented to the settlement agreement without informing the Defendant or obtaining their consent.  Plaintiff then coerced Defendant to sign.
  • Paragraph 4 of the Retainer also provides that the Plaintiff should maintain professional ethics and keep the confidence of the Defendant. The said paragraph also stated thus: “we want you to be satisfied with both the quality of our legal work and the reasonableness of the fees we charge for those services.” Instead, the Plaintiff breached this obligation when he lied to the Defendant. The Defendant was seeking the names of the new owners of the association. Mr. Behar reiterated that “as soon as you sign you will get the names.” The foregoing statement was verbal. Also, there were emails that had similar language stating that Defendant had to sign first. Mr. Behar knew it was imperative to get the names before the court’s approval. Therefore, Defendant relied on those representations made by Mr. Behar, and approved the Agreement. However, the Defendant never received the names or the Confidentiality agreement.
  • Besides, the Plaintiff refused to file a pleading to specifically[pc3]  seek a dismissal of the entire bankruptcy case and fought off numerous requests by the Defendant to seek an Evidentiary Hearing in which to submit evidence of bad faith to the Bankruptcy Court.
  • 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.

COUNT II

VIOLATIONS OF FLORIDA’S UNFAIR AND DECEPTIVE TRADE PRACTICES ACT, CHAPTER 501, PART II, FLORIDA STATUTES

  1. Defendant/Counter-Plaintiff repeats and re-alleges each and every allegation in the above paragraphs, as if set forth fully herein.
  2. 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”
  3. As set forth in the above paragraphs, Plaintiff/Counter-Defendant has willfully engaged in the acts and practices that amount to unfair and deceptive practices, when he knew or should have known that such acts and practices were unfair and deceptive or otherwise prohibited by law. For instance, the Plaintiff entered the Settlement Agreement without the consent of the Defendant. He also failed to file proper objections, to present evidence to the Court, and to make the filings requested by the Defendant. He also failed to fully attend the negotiations and to ensure the Defendant were properly represented.
  4. Further, the Plaintiff placed the Defendant under duress when the Plaintiff told the Defendant that if the Settlement Agreement was not signed he would not represent them. The Plaintiff insisted on the settlement Agreement even though he had not obtained the consent of the Defendant. Further, the Plaintiff insisted that Defendant would face sanctions if she did not agree to the forced settlement.
  5. The Plaintiff also lied to the Defendant when he told Defendant that he would provide the names of the new owners of the Villas as one of the terms of the Settlement agreement. However, the Plaintiff failed to provide the said names. Plaintiff was told by a third party by email and they did not provide to him, although Defendant relied on Plaintiff’s representations  she did not get the names
  6. 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.
  7. 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.” Accordingly, 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

  1. Defendant/Counter-Plaintiff repeats and realleges each and every allegation in the above paragraphs, as if set forth fully herein.
  2. 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 XXX.
  3. A breach of fiduciary duty can be negligent or intentional.  See XXX.
  4. 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 XXX.
  5. 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.
  6. Under the said fiduciary duty, the Defendant trusted that the Plaintiff would carry out their obligations under the Retainer Agreement. Further, the Retainer Agreement obligated the Plaintiff to adhere and be bound to professional ethics. In paragraph 4 of the Retainer Agreement, the Plaintiff expressly stated that he will diligently keep the Defendant informed. Instead, the Plaintiff consented to a Settlement agreement without informing the Defendant or obtaining their consent. The Plaintiff also failed to fully attend the settlement conference or to provide representation to Defendant in this situation. Further, the Plaintiff failed to object to erroneous additions to a court order. He also failed to object to improper Motion to approve a Settlement that was not agreed to by all parties. The Plaintiff also refused to file a pleading to seek a dismissal of the entire bankruptcy case and fought off numerous requests by the Defendant to seek an Evidentiary Hearing in which to specifically submit evidence of bad faith to the Bankruptcy Court.

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

  • Defendant/Counter-Plaintiff repeats and re-alleges each and every allegation in the above paragraphs, as if set forth fully herein.
  • Defendant avers that punitive damages may be awarded when the conduct of the
    wrongdoer is maliciously intentional, fraudulent, or committed
    with a wanton disregard of the Plaintiff’s rights. They are
    awarded as punishment of the offender.
  • Defendant further avers that where the negligent attorney’s conduct not only constituted malpractice but displayed oppression, fraud, malice or other qualifying egregious conduct on the part of the lawyer, the attorney may be directly liable to the plaintiff’s client for punitive damages (in addition to other damages) in the legal malpractice action.
  • This differs from the plaintiff attempting to recover “lost” punitive damages from the underlying action. Instead, this form of punitive damages is based on the attorney’s own conduct. These damages are still disfavored, however, and not available unless the negligent lawyers acts were sufficiently egregious to qualify for a punitive damages award.

Reasonable Duty

  • Secondly, in a malpractice claim, the Plaintiff must plead and prove neglect of a reasonable duty. As is more fully set out below, fulfillment of this duty does not require the attorney to be a predictor of the future in unsettled areas of the law, nor does it require him to inform his client of conflicting law unless the conflicting question will soon be answered by controlling authority.’  The attorney’s duty does require him to exercise good faith and to make diligent inquiry in order to be protected by judgmental immunity. A cause of action exists against an attorney who neglects to perform the services that he explicitly or impliedly agrees to when he accepts employment.

Proximate Cause of Loss

  • The third element that a legal malpractice Plaintiff must plead and prove is that the attorney’s negligence resulted in and was the proximate cause of loss to the plaintiff. The general tort law that “[n]o damages may be recovered where losses do not usually result from or could not have been foreseen as a proximate result of a particular negligence”
  • A proper pleading of an action against an attorney for malpractice
    requires pleading more than bare legal assertions; however, even such a
    complaint should not be dismissed where capable of being cured. The naked legal conclusion that an attorney was negligent will not satisfy the pleading requirements for legal malpractice. Nevertheless, as with other causes of action, a court will only examine the “four corners of the complaint” to determine if the allegations are sufficient to overcome a motion to dismiss for failure to state a cause of action.
    A dismissal with prejudice was affirmed in Bankers Trust Realty, Inc. v. Kluger. This harsh sanction resulted from the failure to “state any of the specifics of the alleged malpractice.”‘ The complaint merely stated the “insufficient legal conclusion that the attorneys ‘negligently, carelessly, unskillfully and tardily conducted the … action and delayed obtaining a judgment therein.”‘ However, XXX Cassel  overturned a trial court ruling dismissing a complaint for legal malpractice with prejudice because the complaint, “while deficient in that it failed to establish conclusively when appellant actually knew that its attorney’s conduct constituted malpractice, was not beyond cure.”
  • An attorney who gives improper or erroneous advice to a client who suffers damage as a result may be subject to a malpractice action for compensatory damages. However, such negligence, if it exists, and even if gross, does not warrant an award of punitive damages absent the necessary allegations and proof of wantonness or reckless indifference. The fact that an attorney who allegedly gave bad advice had listed his name with a lawyer referral service as being proficient in that particular field of law, by itself, does not rise to the level of wantonness or reckless indifference required for punitive damages. Similarly, an attorney’s failure to file a security interest with the Secretary of State was not sufficient to warrant punitive damages in XXX. Another Florida case involving legal malpractice and punitive damages is XXX. The former client sought punitive damages, alleging fraud in the sale of certain real estate. The Court stated, “[moreover, the plaintiff seeks punitive damages against Mr.XXX. Assuming the plaintiff can establish facts warranting punitive damages, the previously received remedy of rescission would not bar an additional award of punitive damages.  Punitive damages were awarded against the attorneys in XXX. The Court found that the trial judge properly awarded punitive damages since the lawyers’ behavior was “egregious,” “self-serving,” and “unconscionable. The attorney’s conduct in Medel v. Republic National Bank of Miami was determined to be an issue for trial rather than summary judgment. Applying Florida law, federal courts have also found punitive damages against attorneys to be warranted. Florida law is clear: under appropriate circumstances punitive damages can be awarded against an attorney in a malpractice proceeding.
  • The Plaintiff/Counter-Defendant was employed by the Defendant/Counter-Plaintiff as their legal counsel. A Retainer Agreement was entered in that regard, which Agreement set out the obligations of both the Defendant and the Plaintiff.
  • The Plaintiff/Counter-Defendant neglected a reasonable duty owed to the Defendant/Counter-Plaintiff. For instance, according to Florida Rules of Professional Conduct, Rule 4-1.2, a lawyer must abide by a client’s decision concerning the objectives of representation and reasonably consult with the client. However, the Plaintiff made decisions without involving the Defendant. The Plaintiff consented to a Settlement Agreement without informing (and obtaining the consent) of the Defendant.
  • Further, Rule 4-1.5, provides that a lawyer may not charge a clearly excessive fee or costs. However, the Plaintiff is demanding the amounts from the Trust Account, after already being paid large amounts. Besides, 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. It is evident that the Plaintiff charged for wrong Motions filed and fabricated fees for busy work to use up all the settlement money.
  • It follows; the Plaintiff is seeking additional and clearly excessive fees or costs, which are not reflective of the services they offered to the Defendant.
  • The negligence of the Plaintiff/Counter-Defendant was the proximate cause of the Defendant/Counter-Plaintiff harm.
  • 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.
  • In sum, Defendant avers that Plaintiff was negligent and/or committed malpractice and breached the duties in the following manner:
  • did not ensure Defendant obtained proper consideration (did not get the names prior to court approval but signed agreement  under duress.
  • Plaintiff did object to the court approval without Defendant raising proper consideration
  • Plaintiff did not object to the improper motion to approve agreement when all parties had not agreed.
  • Plaintiff did not object to erroneous language in the court order that was never discussed at the hearing
  •  made agreements without the Defendant’s consent
  •  abandoned Defendants at the settlement conference and did not protect their interest
  • did not ensure court pleadings properly acknowledge both Defendant in the Settlement Order.
  •  used undue influence, excessive pressure, and financial threats  to coerce Defendant to sign an agreement they did not want to sign
  • Plaintiff excessively billed the Defendant based on their misconduct, duplicate charges for research, billing for improperly filed Motion for discovery and billing excessive and creating busy work as a way to absorb all the settlement money of which the only person who derived a benefit was Mr. Behar. 
  • resisted and/or refused to plead bad faith with evidence to defeat the confirmation of the bankruptcy
  • delayed proper discovery until assets were sold changing the entire direction of the proceedings
  • did not do what the Defendant wanted to do, thus keeping the case running for too long
  •  used threats of sanctions against the Defendant by the Trustee if they didn’t comply
  • did not represent the Defendant’s best interests  by not properly making statutory request on Defendant’s behalf for Fla. 720.
  • If it were not for the Plaintiff’s actions, the Plaintiff’s damages, which are the excessive unnecessary fees that were charged form Plaintiff’s misconduct would not have been charged and the Defendant would not have suffered such damages. Model rule 8.4 prohibits lawyers engaging in certain conduct including dishonesty, fraud, deceit or misrepresentations.

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, punitive damages (because the Plaintiff’s acts were egregious), the costs of this action, pre and post judgment interest, and such other relief that the Court deems just and equitable.

COUNT V

FRAUD

  •  Defendant/Counter-Plaintiff repeats and re-alleges each and every allegation in the above paragraphs, as if set forth fully herein.
  • In Florida, “there are four elements of fraudulent misrepresentation: ‘(1) a false statement concerning a material fact; (2) the representor’s knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation.’” XXX. Although earlier decisions suggested otherwise, “[j]reliance is not a necessary element of fraudulent misrepresentation.” Id.
  • Fraud also includes the intentional omission of a material fact. Consequently, the intentional withholding of information for the purpose of inducing action has been regarded as equivalent to a fraudulent misrepresentation. Ward XXXX..
  • The Plaintiff/Counter-Defendant was employed by the Defendant/Counter-Plaintiff as their legal counsel.
  • The Plaintiff/Counter-Defendant entered a Retainer Agreement with the Defendant. In paragraph 4 of the Retainer Agreement, for instance, the Plaintiff expressed their intention to be bound by Professional ethics. Further, on the said paragraph, the Plaintiff expressly stated that they would diligently ensure that the Defendant is informed of the status of the case.
  • The Defendant relied on the said representations knowing that the Plaintiff would abide by their obligations in the Retainer Agreement.
  • However, as it has already been alleged in this Counter-Claim, the Plaintiff failed to adhere to the obligations in the Retainer Agreement. Notably, on September 17, the trustee in the bankruptcy case filed an expedited motion to enforce the agreement that the Plaintiff had not agreed to. That notwithstanding, the Plaintiff insisted, falsely, that Defendant had consented to the Agreement. It is clear that the Plaintiff settled the agreement without the consent of the Defendant after placing the Defendant under duress. Accordingly, the Plaintiff was aware that there was no binding agreement and that he participated in the misrepresentation and failed to object that there was no valid agreement entered. Further, the Plaintiff did not protect the Defendant’s interests at the Settlement Conference when he left and the agreement was reached without the Defendant’s knowledge. The Plaintiff did not also object during the hearing and he failed to notify the court thereby. Accordingly, Defendant relied on Plaintiff’s misrepresentation and suffered harm.
  • Interestingly, 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 Defendant asked Plaintiff to do and were derived by improper conduct.

WHEREFORE, the Defendant/Counter-Plaintiff prays this Court finds the Plaintiff/Counter-Defendant, jointly and severally, liable for fraud, and in the Final Judgment award the Defendant/Counter-Plaintiff 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.

COUNT VI

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

  • Defendant/Counter-Plaintiff repeats and re-alleges each and every allegation in the above paragraphs, as if set forth fully herein.
  • The acts and conducts of the Plaintiff were extreme and outrageous. The Plaintiff intended to cause, or were in reckless disregard of the probability that his conduct would cause, emotional distress to Defendant.
  • The said actions and conduct did directly and proximately cause severe emotional distress to Defendant, and thereby constituted intentional infliction of emotional distress.
  • The misconduct described in this Count was undertaken with malice, willfulness, and reckless indifference to the rights of others. Notably, by failing to consider the Defendant’s decisions; failing to object to improper Motions; failing to present evidence of bad faith to the Court, the Defendant was subjected to unfair trial, which caused Defendant emotional harm and distress.

WHEREFORE, the Defendant/Counter-Plaintiff prays this Court finds the Plaintiff/Counter-Defendant, jointly and severally, liable for Intentional Infliction of Emotional Distress, and in the Final Judgment award the Defendant/Counter-Plaintiff 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

Defendant/Counter-Plaintiff demands trial by jury of all issues so triable as of right.

DATED this ___day of January, XXX.

 Respectfully submitted,                                                                                                                                                            /sXXX

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, XXX on the following parties:

Via  Florida E-portal

XXXX

EXHIBIT “A”

EXHIBIT “B”

EXHIBIT “C”

EXHIBIT “D”

EXHIBIT “E”

EXHIBIT “F”

EXHIBIT “G”

EXHIBIT “H”

EXHIBIT “I”

EXHIBIT “J”

 

 [pc1]It’s okay to add it.

 

 [pc2]There is no need to assert this because this case is on a totally different issue. Besides, it is the Courts that determine the success of allegations.

 

 [pc3]I believe including the word “specifically” refers directly to any Motion to challenge the bankruptcy case based on the evidence of bad faith you had.

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