Filing 37509064 E-Filed 02/08/2016 09:33:36 AM Hal-- IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT IN FOR PALM BEACH COUNTY, FLORIDA CASE NO. 50201 SCAOOSO 1 WILLIAM WEBSTER MILLSAPS, an individual, and WEBB MILLSAPS LAW, PL, a Florida limited liability company, Third-Party Plaintiffs, vs. DEAN J. ROSENBACH, Third-Party Defendant. I THIRD PARTY COMPLAINT Third-Party- Plaintiffs, WILLIAM WEBSTER MILLSAPS, an indiVidual, and WEBB MILLSAPS LAW, PL, a Florida limited liability company, by and through the undersigned - counsel, hereby sue Third-Party Defendant. DEAN J. and state as followm i MIRA I. At all times material hereto, William Webster Millsaps (?Millsaps?) was and is a resident of Palm Beach County, Florida. 2. At all times material hereto, William Webster Millsaps was and is an attorney and active member of The Florida Bar with authority to practice law in the State of Florida. Millsaps is a Board Certi?ed Healthcare Law Attorney and is a Member of the American Health Lawyers Association. 3. At all times material hereto, Web Millsaps Law, PL (?Millsaps was and is a Florida Limited Liability Company. A: ?Ali an an AA All 4. - At all times material hereto, Third-Party Defendant Dean J. Rosenbach (?Rosenbach?) was and is a resident of Palm Beach County. 5. At all times material hereto, Rosenbach was and is an attorney and active member of The Florida Bar with authority to practice law in the State of Florida. 6. At all times material hereto, Donna Greenspan Solomon was and is an attorney and active member of The Florida Bar with authority to practice law in the State of Florida. Solomon is Board Certi?ed by The Florida Bar as a Business Litigation Expert and as an Appellate Specialist. 7. At all times material hereto. Donna Greenspan Solomon P.A., dlb/a Solomon Appeals, Mediation Arbitration was and is a Florida Professional Association. JURISDICTION AND VENUE 8. The amount in controversy exceeds $15,000.00, excluding interest, costs and attomey?s fees. 9. Venue in this action is proper in Palm Beach County, Florida. FACTS 10. In early 2013, Sheryl L. Taylor (?Taylor?) contacted Millsaps seeking legal representation for Frances and Jerry Berkowitz (the ?Berkowitzes?). Upon meeting with the Berkowitzes separately, the Berkowitzes told Millsaps that Taylor?s former employer had misappropriated virtually their entire life savings. Taylor corroborated the Berkowitzes? allegations, explaining that the Berlrowitzes, an elderly couple, had indeed been victimized by Taylor?s former employer, Prestigious Lifecare for Seniors LLC ?it/a PL Firm, LLC Firm?) and its owner Princella Lewis (?Lewis?). Taylor advised that Lewis and the PI. Firm had misappropriated signi?cant amounts of the Berkowitzes? money through various means, including convincing the Berkowitzes to sign powers of attorney that gave Lewis unfettered access to their funds. Taylor advised that the Berkowitzes requested their money be returned to them. Mrs. Berkowitz alleged that Lewis had scared and threatened her and told her she would never ever return the money. Taylor and other witnesses corroborated these allegations, stating that Lewis had boasted she was keeping the Berkowitzes? money and would not return it. 11. Mrs. Berkowitz and Taylor provided af?davits swearing under oath that Lewis had threatened Mrs. Berkowitz and had admitted her scheme to defraud the Berkowitzes. Other witnesses corroborated these allegations. 12. At this time, Mr. Berkowitz was living in a nursing home, Manor Care of Boynton Beach (?Manor Care?). Mrs. Berkowitz was then living in an assisted living facility in Lake Worth. Subsequently, Mrs. Berkowitz moved into a different ALF in Boynton Beach, closer to Manor Care where her husband was. Subsequently, Mr. Berkowitz died the following summer, and shortly thereafter, Mrs. Berltowitz moved ?ow the ALF to live with Taylor and her husband, Michel Telson ("Telson?) in their home. 13. Taylor and Mrs. Berkowitz stated that Lewis had threatened Mrs. Berltowitz in early 2013. In particular, Lewis threatened that she would claim that the Berkowitzes lacked mental capacity and then use the ?Designation of I-Iealthcare Surrogate" that she had obtained to run the Berkowitzes? affairs and keep all of their money. According to Mrs. Berkowitz and Taylor, Lewis was malicious and gleeful, boasting directly to Mrs. Berkowitz and to Taylor that there was nothing Mrs. Berkowitz could do to stop Lewis from absconding with the money. Accordingly, as a matter of due caution, Millsaps arranged for a clinical and forensic to examine the Berkowitzes and evaluate their capacity to assure that when the Berltowitzes signed new legal documents {such as revocations of the powers of attorney that had been granted to Lewis) there would be a concurrent record that the Berkowitzes had capacity. 14. On or about May 2013, the reported his ?ndings to Millsaps as follows: I found Mrs. Berkowitz to be completely capacitated but somewhat angry and depressed at being taken advantage of by someone [Lewis] whom she thought was a friend. . . . My impression of [Mn Berlcowitz] was that he had decisions] capacity despite his advanced illness. . . . 15. After being retained by the Berkowitzes, Millsaps engaged Solomon and Solomon Appeals, Mediation Arbitration to assist and act as co-counsel in connection with prosecuting the lawsuit captioned Jerry Berkowitz and Frances Berkowitz, vs. Princella Lewis. Prestigious Lifecare For Seniors, LLC?lc/a PL Firm, LLC, and Glenn Ricardo Miller, Case No. 50-2013? Fifteenth Judicial Circuit, Palm Beach County, Florida (hereinafter, the ?Fraud Action?). 16. In the course of close to We years of litigation and highly contested discovery, Millsaps and Solomon discovered evidence to support the following facts which they asserted in a Second Amended Complaint on behalf of their client: A. When the Berkowitzes met Lewis in June 2012, they were an elderly, childless couple with no close living friends or relatives. They were frightened by Jerry Berkowitz?s failing health. Mr. Berkowitz had been diagnosed with cancer and hospitalized at Delray Medical Center, where he was subsequently transferred to Manor Care. Manor Care referred the Berkowitzes to Lewis and PL Firm for a consultation about potentially qualifying Mr. Berkowitz for Medicaid bene?ts. B. As a senior citizen of more than sixtyu?ve (65) years, Jerry Berkowitz already had Medigalc coverage in effect in June of 2012. Moreover, Mr. Berkowitz was not eligible for Medicaid. C. Nevertheless, Lewis told the Berkowitzes, who were in a particularly vulnerable state, that Mr. Berkowitz would not receive necessary healthcare services unless the Berkowitzes applied for Medicaid. Further, Lewis told the Berkowitzcs that they could ?protect" their life savings of $1.2 million, but only if they did as Lewis directed in' applying for Medicaid. . On or about July 3, 2012, Lewis had the Berkowitzes sign a contract with PL Firm for ?Medicaid Flaming,? ?Asset Protection Planning," and Care Management." For the ?Medicaid Application? portion of the contracted services, PL Firm charged the Berkowitzes $511,000, which Lewis falsely represented was the ?going rate" for the preparation of a Medicaid Application. On July 19, 2012, Lewis met privately with attorney Glenn Ricardo Miller (?Miller?) in his Miami?Bade of?ce. They discussed the Berkowitzes? ?nancial situation and agreed that Lewis would bring Mrs. Berkowitz to Miller?s of?ce a few days later. In the meantime, Miller would prepare a Durable Power of Attorney for each of Mr. Berkowitz and Mrs. Berkowitz to execute and sign over ?nancial control of their money to PL Firm and Lewis. On July 24, 2012,. Leads told Mrs. Berkowitz that she must consolidate all of her money, which until that date had been intentionally deposited in four (4) different banks. By insisting that the Berkowitzes consolidate their accounts into a single bank, Lewis contradicted the Berkowitzcs? longstanding plan of diversi?cation to avoid default risk. Also on July 24, 2012, a PL Firm employee transported Mrs. Berkowitz (who does not drive) around Palm Beach County to three (3) of the four (4) different banks where the Berkowitzes held accounts, specifically: Chase, PNC, and SunTrust. The Berkowltzes? funds in Chase and PNC were held almost exclusively in CDs. . First, the PL Firm employee drove Mrs. Berkcwitz to Chase. The PL Firm employee escorted her inside, where PL expressly required her to close her accounts without regard to the cost of any penalty for prematurely cashing her CD3. Next, Mrs. Berkowitz was driven to PNC. The same process was followed: tell the bank you need to close all your bank accounts because ?you need to be strong for Mr. Berkowitz.? Then, PL Firm brought Mrs. Berkowitz to SUnTrust, where PL Finn instructed Mrs. Berkowitz to consolidate all of the withdrawn money into her SunTrust account. Mrs. Berkowitz did as she was told and deposited into SunTrust the funds that had been ?liquidated? at Chase and PNC earlier that day. . Second, Mrs. Berkowitz was told to obtain a cashier?s check from SunTrust payable directly to the Firm? in the amount of $55,000. PL Firm told Mrs. Berkewitz that this $55,000 was the fee for the ?Medicaid Application? that PL Firm was preparing for Mr. Berkowitz. Mrs. Berkowitz did as she was told and obtained a $55,000 cashier?s check from SunTrust, made payable to PL Firm. . After what had already been a long day of driving around Palm Beach County from bank to bank, Mrs. Berkowitz was driven by Lewis and the PL Firm down to Miami to meet with attorney Miller in his office. Mrs. Berkowitz was told that Miller had prepared legal documents that Mrs. Berkowitz needed to sign in order to help her husband get medical care under Medicaid. . When Mrs. Berkowitz arrived, Miller had already prepared two (2) documents, a ?Durable Power of Attorney? and a ?Designation of Healthcare Surrogate," printed and ready for Mrs. Berkowitz to sign. Miller instructed Mrs. Berkowitz to execute the documents making PL Firm and Lewis her ?agent? under the Power of Attorney. The Durable Power of Attorney that Miller had Mrs. Berlrowitz sign on July 24, 2012 gave immediate, blanket authority to PL Firm and Lewis over Mrs. Berkowitz?s ?nancial assets. Miller billed Mrs. Berkowltz for legal fees and advised Mrs. Berkowitz that he was acting as her attorney. However, Miller never met alone with Mrs. Berkowitz, but only in the presence of Lewis and PL Firm and its agents a?er first meeting alone with Lewis to take direction regarding his engagement. Miller never gave Mrs. Berkowitz either the originals or copies of the Durable Power of Attorney or the Healthcare Surrogate Designation that he had prepared in advance and had Mrs. Berkowitz execute on July 24, 2012. Instead, Miller had Mrs. Berkowitz?s original documents hand-delivered to Lewis. Once Lewis received Mrs. Berkowitz?s original Durable Power of Attorney and Designation of I-Iealthcare Surrogate documents from Miller, Lewis withheld both the originals and copies of the documents from Mrs. Berkowitz. In fact, Lewis failed and refused to release the document's until Millsaps subpoenaed same and PL Firm produced them to Millsaps on June 21, 2013 almost eleven (1 1) months after Lewis and Miller had Mrs. Berkowitz execute the documents in favor of PL Firm and Lewis. On July 27, 2012, three (3) days after Miller had? Mrs. Berkowitz execute the Durable Power of Attorney and Designation of Healtheare Surrogate documents giving immediate power and control over money and healthcare decisions to Lewis and PL Firm, Miller travelled from Miami-Dede County to Manor Care in Palm Beach County to have Mr. Berkowitz execute similar legal docUments pie-prepared by Miller. Miller never spoke with Mr. Berkowitz prior to arriving at his bedside at Manor Care. When Miller arrived, he instructed Mr. Berkowitz to execute the pro-prepared Durable Power of Attorney and Designation of Health Care Surrogate documents giving immediate control of his ?nancial and healthcare decisions to Lewis and PL Firm. On August 2012, Lewis met with a representative of New York Community Bank d/b/a AmTrust Bank or ?AmTrust?) seeking to open a ?trust account? for PL Firm. Lewis?s purpose in opening a ?trust account? was to assist her in fraudulently convincing the Berkowitzes that money transferred to the PL Firm?s ?trust account? would be held ?in trust? ?for the bene?t and care of the Berkowitzes. NYCB has two types of ?trust accounts?: an Interest on Lawyer?s Trust Account account?), which is appropriate only for attorneys and their law firms; and (i i) a ?trust under agreement account,? in which case a trust agreement is required before the account is opened. Lewis and PL Firm never entered into a written trust agreement with the Berkowitzcs and therefore could not have provided same to NYCB as required to open a ?trust under agreement account." . Since Lewis is not an attorney and PL Firm is not a law ?rm, it should likewise not have been able to open an IOLTA Accotmt for PL Firm. Thus, Lewis and PL Firm should not have been able to open a ?trust account? that could be used to fraudulently convince the Berkowitzes that their funds were being held in ?trust.? . However, NYCB violated its own policies and procedures by opening an IOLTA Account for PL Firm, despite the fact that Lewis is not an attorney and PL Firm is not a law ?rm. Y. By wrongfully opening up an account for a non-attorney such as Levvis, NYCB skirted its own policies and procedures of requiring and reviewing a trust agreement before opening a trust account for a non-lawyer. Z. Lewis and PL Firm opened the IOLTA account (hereinafter, the ?32] Account") in the name of Firm Trust? on August 3, 2012 with $20,000 of the $55,000 SunTrust cashier?s check previously made payable to PL Firm by Mrs. Berkowitz for the illegal ?Medicaid Application." Also on August 3, 2012, Lewis and PL Firm opened a commercial business account (the ?31] Account?) with the remaining $35,000 of the $55,000 cashier?s check. AA. By wrongfully opening the 321 Account as an IOLTA account in the name of Firm Trust," NYCB provided Lewis. and PL Firm with both a means for de?auding the Berkowitzes and a receptacle for depositing and laundering the funds fraudulently obtained. BB. Lewis used the newly-opened 321 Account to convince the Berkowitzes that funds transferred to the Firm Trust" Would be held ?in trust? for their bene?t and use. Lewis insisted that the Berkowitzes needed to ?protect" their life savings and get Mr. Berkowitz his necessary health care services by transferring their funds to this purported ?trust? account. CC. On August 30, 2012, Lewis took Mrs. Berkowitz to bank the one bank that PL Firm had not previously taken Mrs. Berkowitz to on June 24, 2012, when PL Finn drove her to her three other banks before transporting Mrs. Berkowitz to attorney Miller in Miami. DD. Lewis instructed Mrs. Berkowitz to write a check from her bank account payable to ?The PL Firm Trust? in the amount of $17,000. Further, Lewis directed Mrs. Berlcowitz to liquidate all her CDs, regardless of the penalties for early withdrawal. Lewis instructed Mrs. Berkowitz to utilize the proceeds from the liquidated CDs to obtain three (3) cashier?s checks payable to ?The PL Firm Trust? in the amounts of $55,999.67, $58,325.36 and (another) $58,325.36. EE.Also on August 30, 2012, Lewis and agents of PL Firm drove Mrs. Berkowitz back to SunTrust, where the funds liquidated at Chase and PNC had earlier been deposited. The Berkowitzes also had approximately 130 U.S. Government Series EE Savings Bonds (?Government Bonds") in their safety deposit box at SunTrust. The Government Bonds had been accumulating tax-deferred interest for decades, and cashing them all in at once Would trigger a substantial income tax liability. Nevertheless, Lewis told Mrs. Berkowitz that she must cash in all of the Government Bonds. Mrs. Berkowitz, who had held the bonds for up to 30 years, vigorously and repeatedly stated that she did not want to cash in the Bonds. FF. Lewis responded that she alone had legal authority over Mrs. Berkowitz?s ?nances due to the Power of Attorney prepared by Miller, and demanded that Mrs. Berkowitz cash in all of the Government Bonds. GG. The Government Bonds had a cash value of at least $450,000. Of this total amount, approximately $320,000 was taxable interest income, which was triggered by the redemption of the Bonds. Cashing in all of the Government Bonds on this date in 2012 caused an additional federal income tax liability for the Berkowitzes in the approximate 10 amount of $82,000. HH. It took several days for SunTrust to liquidate the Government Bonds through the US. Treasury. On September 14, 2012, after all of the Government Bonds had been cashed and the proceeds deposited into the Berkowitzes' SunTrust account, Lewis went to SunTrust alone and emptied out virtually all of the Berkcwitzes? remaining funds at SunTrust. Using the Powers of Attorney that Miller had the Berkowitzes execute in favor of PL Firm, Lewis converted the Berkowitzes? money into two (2) cashier's checks payable to ?The PL Firm Trust? in the amounts of $500,000.00 and $514,473.08. 11. On September 11 and 17, 2012, PL Firm deposited approximately $1,204,123.47 of the Berkowitzes? converted funds all payable to ?The PL Firm Trust? into the AmTrust 321 Account, as follows: Date Source Amount 09/11/12 $17,000.00 $55,999.67 $58,325.36 131386'1' $58,325.36 Subtotal 189,650.39 09/17/12 SunTrust 5551437103 SunTt?ust $500,000.00 Subtotal $1,014,473.08 Total $1,204,123 .47 JJ. Thus, between August 3, 2012 and September 17, 2012, PL Firm deposited $1,224,123.47 (the initial deposit of $20,000 plus $1,204.123.47 as per above) of the Berkowitzes? money into the 321 Account and $35,000.00 of the Berkowitzes? money into the 311 Account, for a total of KK. Firm then used the Berkowitzes? money in the 32] Account to pay itself for services purportedly provided to the Berkowitzes. By paying itself for such alleged services, PL. Firm violated Florida law, which has strict criteria that an ?agent? under a power of 11 attorney is not permitted to pay itself fees for non-agent duties, unless the power of attorney speci?cally authorizes such payments and, even with such express authorization, only if the agent is acting strictly and solely in the interest of the bene?ciary. LL.Lewis and PL Firm did not use the money in the 321 Account for the bene?t of the Berkowitzes. As just one example, on September 17, 2012 three (3) days after emptying out the SunTrust account PL Firm wrote a check to itself from the 321 Account in the amount of $56,000 for ?auto reimbursement 9/12 care management.? However, the funds were actually used to purchase a 2013 Mercedes Benz, registered to ?Princella Lewis,? which was neVer used to transport or for the bene?t of the Berkowitzes. MM. In a letter dated October 22, 2012, The Florida Bar Foundation advised Lewis that she had not provided the ?Notice to Bar Foundation? form required for IOLTA accounts. -In a letter dated November 6, 2012 to The Florida Bar Foundation, Lewis stated: ?[O]ur agency is not practicing law neither is it the intention of our agency to assume we are practicing law. We are a Senior Care Consulting Agency." Lewis further stated: ?In regards to the IOTA [sic] account opened, it Was the recommendations of the . representative at Amtrust Bank to title the account in such manner.? NN. On or about December 4, 2012, Lewis faxed a copy of The Florida Bar Foundation letter and her response to same to her NYCB account representative. 00. In December 2012, after realizing that Account 321 had been improperly opened as an IOLTA account for a nonlawyer, NYCB simply ?re-titled? the IOLTA trust account as a non?trust commercial ?Business? lnterest?bearing checking account. PP. Despite the fact that trust accounts for nonlawyers can only be properly opened as non- 12 IOLTA ?trust under agreement? accounts, NYCB never investigated whether there was in fact a written trust agreement to cover the deposits that had been made with checks payable to Firm Trust Account.? QQ. Despite the fact that checks payable to Firm Trust Account? had been deposited into an IOLTA account improperly opened by NYCB for a nonlawyer, NYCB never considered the interests of or attempted to contact the bene?cial owners of the funds that had been deposited ?in trust." RR. DeSpite the fact that over $1.2 million in checks payable to the Firm Trust Account? had been deposited into the 321 Account due to error in opening an IOLTA account for a nonlawyer, NYCB simply converted the 321 Account from an IOLTA trust account to a comercial business checking account, whereby PL Firm became the apparent bene?cial as well as legal owner of the account. SS.NYCB never attempted to inform the bene?cial owners of the funds that had been deposited ?in trust? that their funds were now sitting in a commercial business checking account. TT.Upon learning that PL Firm was not a law ?rm and its principals were not atlomeys, NYCB did not investigate and did not learn that no written trust agreement existed to cover the deposits that had been made with checks payable to Firm Trust Account," and thus did not thereupon close the 321 Account, and freeze or implead PL Firm?s assets (until Mrs. Berkowitz ?led suit; as discussed below). UU. Since September 14, 2012, when the PL Firm took the Berkowitzes? money from SunTrust, Mrs. Berkowitz repeatedly insisted on knowing the location of her money and to see statements and documentation regarding the funds. PL Firm refused all such 13 requests. PL Firm and Lewis refused to provide the Berkowitzes with any statements, receipts, or accounting of what had happened to the Berkowitzes? money. W. Eventually, after months of the Berkowitzes? repeatedly requesting information regarding their money, Lewis told Mrs. Berkowitz directly that she was ?never? returning her money. Lewis told Mrs. Berkowitz that Mr. Berkowitz was going to die soon and that when Mr. Berkowitz passed away, there would be nothing that Mrs. Berkowitz could do whatsoever to obtain the return ofthe money. WW.Lewis also told Mrs. Berkowitz that she had the legal authority to put Mrs. Berkowitz in a mental hospital and that if Mrs. Berkowitz persisted in. regard to requesting statements of the funds or having the money returned, Lewis would have Mrs. Berkowitz ?declared incapacitated? and institutionalized. 17. The Berkowitzes subsequently retained attorney Millsaps, who engaged Solomon, and demanded a return of the Berkowitzes? funds. Lewis refused to return the money, citing a series of improper excuses and justi?cations. 18. Eventually, after the Berkowitzes, through Millsaps and Solomon, initiated the Fraud Action and moved for emergency injunctive relief, the PL Firm stated, through its then- counsel, Ruby Seymour?Barr that hundreds of thousands of dollars of the Berkowitzes? money had been taken by PL Firm for unde?ned, unauthorized, and unaccounted-for ?services? allegedly performed by PL Firm for the Berkowitzes, but that $750,000 remained unspent. - 19. Through the efforts of Millsaps and Solomon, and at the behest of the Court, PL Firm ?nally returned the $750,000 admittedly belonging to the Berkowitzes through a check drawn on the 321 Account. However, Lewis refused to return the remaining funds (over $544,000) or to provide a full explanation For what had happened to the missing money. In lieu 14 of providing a response, Lewis attempted to justify keeping the remaining money by arguing it was compensation for services provided by the PL ?rm. 20. After extensive and contested discovery efforts, on or about June 21, 2013, during a deposition, Lewis stated her belief that she and PL Firm owed the Berkowitzes an additional amount of $85,148.92, which they paid in two checks $473.08) during the deposition. However, Lewis again refused to return the remainder of the Berkowitz?s funds or to give an explanation for what had happened to the remainder of the missing money. 21. Lewis also complicated the record and accounting efforts by stating that funds from other PL Firm ?clien had been commingled with the Berkowitzes? funds deposited into the 321 Account, but that the PL Firm had kept no records or receipts of amounts collected from the Berkowitzes (or from the other ?clients?) not had they provided records or statements to the Berkowitzes for amounts charged to the Berkowitzes for alleged ?services" provided by PL Firm and Lewis. 22. Mr. Berkowitz died on Juiy 10, 2013; Mrs. Berkowitz subsequently appeared in the Fraud action on behalf of both herself and as the court-appointed personal representative of Mr. Berkowitz?s estate. 23. During a continued deposition of Lewis, as the PL Firm?s corporate representative on November 15, 2013, PL Firm admitted to possessing an additional $289,650.39 of Mrs. Berkowitz?s funds. In connection therewith, on November 21, 2013. Ms. Lewis? attorney Ms. Bar emailed: expect to have a check out to your of?ce by early next week." 24. However, instead of the promised check, on December 11, 2013, a new attorney, Bruce Rosenwater, appeared in the Fraud Action and took over the representation of bwis and PL Firm. Despite demand, PL Firm did not tender the additional amount of $289,650.39 that 15 Ms. Lewis had admitted belonged to Mrs. Berkowitz. 25. PL Firm and Lewis subsequently produced in discovery a ?Summary of Bank Statement Activity,? a copy of which is annexed hereto as ?Exhibit According to the ?Summary of Bank Statement Activity,? the 321 Account had a balance of $326,433 as of December 31, 2013, and $312,244 of this amount admittedly belonged to Mrs. Berkowitz. In addition, Lewis did not dispute that the $35,000 plus interest in the 31] Account belonged entirely to Mrs. Berkowitz. 26. Despite demand, PL Firm and Lewis did not tender the amount of $347,244 ($312,244 plus $35,000), although they did not dispute that at least that amount was due and owing to the Berkowitzes. 27. Meanwhile, on November 22, 2013, Mrs. Berkowitz ?led a complaint against NYCB alleging various counts including negligence (?Negligence Action?). Go January 16, 2014, NYCB ?led a Complaint in Interpleader against the Berkowitzes and PL Firm (hereinafter, the ?Interpleader Action?) with respect to the funds held in the 321 Account and the 311 Account. 28. Millsaps and Solomon represented Mrs. Berkowitz in the Negligence Action and Interpleader Action as well as the Fraud Action (collectively, the ?Underlying Actions?). 29. In its complaint in the Interpleader Action, NYCB acknowledged that $1,259,123.47 of the Berkowitzes? funds had been deposited into the 321 Account and $35,000 into the 311 Account. However, NYCB took the position that only $268,544.50 of the funds remaining in the combined 321 and 311 Accounts belonged to Mrs. Berkowitz far less than the $347,244 already conceded by Lewis and PL Firm (and far less than was actually still due to Mrs. Berkowitz). According to NYCB, [was] deposited for the bene?t of PL clients 16 other than Mrs. Berlcowitz.? 30. Throughout the course of Millsaps? and Solomon?s representation in the Underlying Actions, Mrs. Berkowitz conIistently made known both verbally and in writing that her goal Was not solely to recover her oWn funds wrongfully taken by Lewis, but also to ?stop Lewis? from being ?able to do this to other people.? Mrs. Berkowitz speci?cally wanted to ?stop Lewis? to honor her late husband, Mr. Betkowitz, who had testi?ed from his hospice bed on July 3, 2013 one week before he died?as follows: Q. So you are very angry with Princella Lewis? A. Right. Q. Why are you angry? A. How can you rob two sick old people out of their life savings? And most of the thing she was saying was all a lie. Pursuant to Mrs. Berkowitz?s wishes and instructions, Millsaps retained private investigators who assisted Millsaps and Solomon in uncovering additional victims of the widespread fraud perpetrated by Lewis and PL Firm. 32. On June 27, 2014, Mrs. Berkowitz ?led an Amended Complaint in the Negligence Action. Solomon therea?er informed counsel, Joshua Mize, that Mrs. Berkowitz Would be ?ling a motion to file a Second Amended Complaint. Pursuant to agreement of counsel, on July 11, 2014, NYCB ?led a motion for extension of time to reSpond to the Amended Complaint until after disposition of Mrs. Berkowitz?s motion to' ?le a Second Amended Complaint. 33. On October 23, 2014. the State of Florida, Agency for Health Care Administration, presented a Statement of Claim to Mrs. Berkowitz, as the Personal Representative to the Estate of Mr. Jerry Berkowitz, to repay to the State of? Florida, $33,751.38 17 paid on behalf of Mr. Berkowitz by the Medicaid program. 34. On November 6, 2014, a Second Amended Complaint was deemed ?led in the Fraud Action, pursuant to an Order entered that day granting Mrs. Berkowitz?s October 31, 2014 amended motion to ?le second amended complaint. 35. On December 3, 2014, Millsaps ?led a Petition for Appointment of Emergency Temporary Guardian for Mrs. Berkowltz (?Petition?). Millsaps explained that Lewis had ?led a lawsuit against Taylor and Telson, in whose home Mrs. Berkowitz still resided. After Lowis sued Taylor and Telson, Mrs. Berkowitz made con?icting statements to counsel about how she wished to proceed and Taylor/Telson pressured Millsaps, stating that Mrs. Berkowitz wanted to immediately dismiss her pending lawsuits against Lewis with prejudice, despite her prior instructions and against her own self-interest. Millsaps was concerned that Taylor/Telson might have a con?ict of interest in their desire to settle their lawsuit with Lewis and might be unduly in?uencing Mrs. Berkowitz to dismiss her lawsuits with prejudice due to Taylor/Telson?s desire to have the lawsuit pending against them diSmissed. 36. Millsaps noted that {f Mrs. Berkowitz had legal capacity and desired to terminate the pending litigation with prejudice, that was her prerogative. However, pending the determination of the legal capacity 01" Mrs. Berkowitz to make decisions about litigation, contracts, and ?nances, there was an imminent risk of loss if the pending litigations were to be dismissed with prejudice or resolved without legal guidance and with the possible con?ict of interest with Taylor/Telson influencing Mrs. Berkowitz to resolve the pending litigations in a manner that would otherwise not be as Mrs. Berkowitz desired (if she in fact was lacking legal capacity) and/or in Mrs. Berkowitz?s best interest. 37. Millsaps further noted that through litigation, Lewis had already been forced to 18 turn over the sum of $835,148.92 (the initial $750,000 in open court plus the $85,148.92 during deposition), but that anticipated future recoveries were being jeopardized potentially by the diminished capacity of Mrs. Berkowitz, the undue in?uence of caregivers TaylorfI?elson who had an apparent con?ict of interest, or a combination of both. 38. Millsaps also noted that the $55,000 Medicaid application, the $33,751.38 repayment demanded by Medicaid, and the $82,000 in additional federal income tax payable due to the cashing in of the Government Bonds represented damages to Berkowitz that remained to be recovered, in addition to the remaining principal by Ms. Lewis. 39. Millsaps further noted in the petition for guardianship that Mrs. Berkowitz had remaining an estimated $400 thousand in liquid assets. 40. In view of the pending petition for guardianship for their client, Millsaps and Solomon determined they were no longer able to continue as Mrs. Berkowitz?s counsel, and on December 4, 2014, they moved to withdraw as Mrs. Berkowitz?s attorneys in the Underlying Actions. 41. The court docket shows that the guardianship proceeding was assigned to Judge Martin H. Colin (?Judge Colin?). However, Judge Colin did not enter any orders in the proceeding. 42. Instead, on December 4, 2014, a different judge granted Millsaps? petition for emergency guardianship and appointed Third?Party Defendant Savitt as the emergency temporary guardian of Mrs. Berkowitz. On January 7, 2015, Savitt was appointed as the limited guardian (?Guardian?) of Mrs. Berkowitz. 43. Savitt was not a family member or friend of Mrs. Berkowitz, whom she had never met before. Savitt was appointed as a ?professional guardian." The Statewide Public Guardian 19 Of?ce requires such professional guardians to undergo credit and criminal history checks before being appointed. 44. Despite the requirement for credit and criminal history checks before appointment. Savitt and her husband had just had a ?nal judgment of foreclosure entered against them. On November 17, 2014 -- less than a month before the guardianship ?nal judgment of foreclosure was rendered, showing a balance due of $308,328io4. A foreclosure sale was scheduled for March 17, 2015. 45. On December 8, 2014, Savitt ?led an emergency motion to compel Mrs. Berkowitz?s bank to provide her with access to Mrs. Berkowitz?s ?nancial records and to distributeall of her funds to Savitt as Mrs. Berlcowitz?s temporary guardian. The emergency motion was granted that same day. Also on December 8, 2014, Savitt went to Mrs. Berkowitz?s bank to ?open accounts.? I . 46. However, on December 26, 2014, Savitt told Millsaps that Mrs. Berkowitz had "no money left? in her accounts, despite Millsaps?. advising Savitt that Mrs. Berkowitz should have had close to half a million dollars remaining. 47. Meanwhile, on January 26, 2015, Dean Rosenbach and the Law Of?ces of Marshall B. Rosenbach substituted in as counsel for the Guardian (Savitt) and Mrs. Berkowitz in the Underlying Actions. 48. Savitt and her counsel Rosenbach never attempted to understand the complexities, dif?culties encountered and overcome, or procedural postures of the Underlying Actions, the funds still due and owing to Mrs. Berkowitz from the 321 and 311 Accounts, the various claims asserted (including claims for attorney?s fees and costs incurred), the damages suffered by Mrs. Berkowitz in addition to the loss of her savings, the roles the various parties (Lewis. PL 20 Firm, attorney Miller, and played in causing same, the recoverability of such damages, and the stated goal of Mrs. Berkowitz to ?stop Lewis? from continuing to harm other victims. 49. Instead, Savitt and Rosenbach moved almost immediately to settle the Underlying Actions for essentially whatever they could get without actually having to engage in litigation, despite the extensive work completed by Millsaps and Solomon as predecessor counsel to support Mrs. Berkowitz?s claims. Within two (2) weeks of his January 26, 2015 substitution of counsel in the Underlying Actions, Rosenbach was engaged in discussions with counsel to set up a face to face settlement conference during mid-February 2015. 50. Settlement between the Guardian and Lewis, PL Firm, Miller, and NYCB (the ?Settlement?) was arranged in principal shortly thereafter and ultimately ?nalized during late May or early June 2015. Rosenbach?s failure to comprehend the posture of the claims before or even during settlement discussions is most telling in his email exchanges with attorney, Joshua Mize. Between February and May 2015, Mize repeatedly urged Rosenbach to read Motion to Dismiss the Complaint ?led against NYCB in the Negligence Action. Mize claimed that reading the Motion to Dismiss would ?make clear? that the Complaint was ?frivolous and sanctionable.? 51. What Mize never told Rosenbach and which Rosenbach never raised in response to these claims? was that on June 27, 2014, Mrs. Berkowitz had ?led an Amended gamma that had mooted Motion to Dismiss the (initial) Complaint. Further, a review of the pleadings would have revealed motion for extension of time to respond to the Amended Complaint. in which NYCB explicitly noted that Mrs. Berkowitz was moving to ?le a Second Amended Complaint. 21 52. Rosenbach?s failure to understand the procedural posture of the Negligence Action made him susceptible to Mize's baseless claim that the (mooted) Motion to Dismiss? would ?make clear? that the action was frivolous and sanctionable. 53. Rosenbach similarly failed to understand the procedural posture of the Fraud Action before he and Savitt rushed to settle with the fraudster. Princella Lewis and PL Firm never responded, and were never required to respond, to the Second Amended Complaint that was deemed ?led in the Fraud Action on November 6, 2014, despite the fact that Rosenbach could have sought a default and forced them to continue to defend against the damaging facts supporting the claims that his predecessor counsel had developed and the admissions that prior counsel had obtained. 54. The Settlement failed Mrs. Berkowitz on many levels. After the total recovery of $835,148.92 obtained by Millsaps and Solomon, Mrs. Berkowitz was still due $423,974.55 from the $1,259,123.47 fraudulently obtained by Lewis and PL Firm. She also suffered out-of?pocket expenses as damages including the $82,000 in additional federal income tax payable. In addition, she had paid her counsel?s reasonable attorney?s fees and costs to pursue Ms. Lewis and her confederates. All of these amounts were potentially recoverable in the Underlying Actions. 55. Nevertheless, the Settlement provided Mrs. Berkowitz with total disbursements of only $261,000 ($100,000 and $l6l.000) over $85,000 less than the $347,244 previously conceded to be due to Ms. Berkowitz by Lewis and the PL Firm. It was even less than the $268,544.50 previously conceded by NYCBI 56. The Settlement dismissed with prejudice the claims against not only Lewis, PL Firm, and NYCB, but also against attorney Miller without Miller having to pay so much as a 22 penny to Mrs. Berkowitz in settlement of the malpractice claim against him. 57. Most shockingly, the Settlement allowed Leads and PL Firm to obtain all of the remaining funds in the 321 Account 011(1311 Account (together, the ?Disputed Accounts?). In the Interpleader Action, NYCB had taken the position that $92,916.93 of the commingled funds in the 321 Account was ?deposited for the bene?t of PL clients other than Mrs. Berkowitz.? This was the very reason why NYCB had maintained that Mrs. Berkowitz was entitled to only $268,544.40 of the funds in the Disputed Accounts. In the Settlement, NYCB acknowledged that it had ?been noti?ed of other possible claims by other third parties to funds held in the Disputed Accounts." Nevertheless, the Settlement provided: shall unfreeze the amounts remaining in the. Disputed Accounts and allow Firm] to withdraw all such amounts from the Disputed Accounts.? (Emphasis supplied). 58. Thus, the Settlement not only failed to effectuate Mrs. Berkowitz?s stated desire to ?stop Lewis,? but instead released her victims? monies to allow her to fund her continued fraudulent operations. 59. In addition to their negligent handling of the Underlying Actions, Savitt and Rosenbach never attempted to the funds in excess of that should have been remaining in Mrs. Berkowitz?s accounts when Savitt took possession of such accounts. Instead, Savitt and Rosenbach have systematically wasted and intentionally mismanaged the assets of Mrs. Berkowitz by ?ling suit against Millsaps and Solomon. 60. Rosenbach also published false and defamatory statements about Millsaps and Solomon; speci?cally, by making false and defamatory statements that Millsaps and Solomon were ?being investigated? and that they themselves had spent the $800,000 plus that they had recovered on behalf of Mrs. Berkowitz and which was paid by PL Firm to Millsaps? trust 23 account. 61. Third-party Plaintiffs have performed all conditions precedent, or they have occurred been waived, or otherwise been excused. COUNT I CONTRIBUTION 62. Third-Party Plaintiffs adopt by reference, as if set out fully and completely in this Count, the following statements of this Third-Party Complaint: Paragraphs 1 through 61 (including all subparts). 63. In May 2015, Rosenbach, acting on behalf of the Guardian, served Millsaps and Solomon with a baseless Complaint. Rosenbach served an Amended Complaint on July 14. 2015, and a Second Amended Complaint on or about October 26, 2015. 64. The Second Amended Complaint maintains that Millsaps and Solomon charged Mrs. Berkowitz excessive legal fees and costs in connection with the Underlying Actions. 65. The Underlying Actions included claims for attorney?s fees and costs, and these claims were potentially recoverable in the Underlying Actions. 66. Rosenbach?s negligent conduct in handling the Underlying Actions forever precluded Mrs. Berlrowitz from recovering the legal fees and costs paid to Millsaps and Solomon. To the extent that Millsaps and Solomon have any liability for the legal fees and costs charged to Mrs. Berkowitz, they have a right to contribution from Rosenbach from his own misconduct in precluding Mrs. Berkowitz?s ability to recover such legal fees and costs in the Underlying Actions. 24 WHEREFORE, Third-Party Plaintiffs demand judgment against Third-Party Defendant Rosenbach for damages and pre and postjudgmem interest, and for such other and further relief, in law or in equity, as this Court deems just and proper under the circumstances. 9.923111. PER SE 68. Third?Party Plaintiffs adopt by reference, as if set out fully and completely in this Count, the following statements of this Third-Party Complaint: Paragraphs 1 through 6] (including all subparts). '69. Third-Party Defendant Rosenbach published false and defhmatory statements about Millsaps and Solomon;- specifically, false and defamatory statements that Millsaps and Solomon were ?being investigated? and ?that they themselves had spent the $800,000 plus that had been recovered on behalf of Mrs. Berkuwitz and paid by PL Firm to Millsaps? trust account. 70. Such statements are highly defamatory to attorneys Millsaps and Solomon, are categorically untrue, and have no basis in truth. 71. Rosenbaeh published such false and defamatory statements with knowledge or reckless disregard as to the falsity of such statements, or at least negligently. 72. Third-Party Plaintiffs have been damaged by Rosenbach?s false and defamatory statements. 25 WI-IEREFORE, ThirduParty Plainti??s demand judgment against Third-Party Defendants Rosenbach for damages and pre and postjudgment interest, and for such other and further relief, in law or in equity, as this Court deems just and proper under the circumstances. Dated: February 5, 2016 COLE, SCOTT KIS P.A. Attorneys for Defendants Esperante Building 222 Lakeview Avenue, Suite 120 West Palm Beach, FL 33401 Telephone: 561-383-9200 Facsimile: 561-683-8977 Alison Thomas JONATHAN VINE FBN: 010966 ionatlmu.vine?iiesklenalenm ALISON THOMAS FBN: 102879 9 I 9-029l third-party complaintdoox 26 Prestigious life cm Summary of mink 3mm Acth [Account From August 1012 Through Dambut 101:! mm Buknwlu related Deposits 1.224.133 ?mm o! monln 383,914 chad: 129,356) 2.65;! oilocntodtnocmwlu mums 312,244 Dental! mm Chucks [161,323] Dob]! memo {chads} Ian! 0! of ?member 31. 2013 [pill nbnvu) 315L533 Balm:- (pu- tub? my: MON 2