IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
Case No.: 50-2013-CA-005491-XXXX-MB-AJ
Division: AJ
FRANCES BERKOWITZ, individually and
as Personal representative of the
ESTATE OF JERRY BERKOWITZ,
Plaintiff,
vs.
PRINCELLA LEWIS, PRESTIGIOUS LIFECARE
FOR SENIORS LLC F/K/A PL FIRM, LLC,
a Limited Liability Company, and
GLENN RICARDO MILLER,
Defendants.
/
SECOND AMENDED COMPLAINT
Plaintiff, FRANCES BERKOWITZ, individually and as Personal Representative
of the Estate of Jerry Berkowitz (“Mrs. Berkowitz” or “Plaintiff”), by and through the
undersigned counsel, files this Second Amended Complaint against Defendants,
PRINCELLA LEWIS (“Lewis”), PRESTIGIOUS LIFECARE FOR SENIORS LLC
f/k/a PL FIRM, LLC (“PL Firm”), and GLENN RICARDO MILLER (“Miller”), and
alleges:

1

 PARTIES
1.

Plaintiff, Mrs. Berkowitz, is a resident of Palm Beach County, Florida.

2.

Defendant Lewis, an individual, is a resident of Broward County, Florida.

3.

Defendant PL Firm is a Florida limited liability company with its principal

place of business in Tamarac, Florida.
4.

Defendant Miller, an individual, is a Florida attorney with his principal

place of business in North Miami Beach, Florida.
JURISDICTIONAL STATEMENT
5.

The amount in controversy exceeds $15,000.00, excluding interest, costs

and attorney's fees, which is within the jurisdiction of the Court in accordance with
Section 26.012 of the Florida Statutes.
VENUE
6.

Venue in Palm Beach County, Florida, is proper in this action under

Section 47.011 of the Florida Statutes because the activities giving rise to this action
occurred in this county.
2

 FACTUAL ALLEGATIONS
7.

Mrs. Berkowitz’s deceased husband, Jerry Berkowitz (“Mr. Berkowitz”),

was diagnosed with cancer and hospitalized at Delray Medical Center on or about June
8, 2012.
8.

After spending approximately one week at Delray Medical Center, Mr.

Berkowitz was transferred to a nursing home, Manor Care of Boynton Beach (“Manor
Care”).
9.

Manor Care subsequently referred Mr. Berkowitz to Defendants Lewis and

PL Firm for a consultation about potentially qualifying Mr. Berkowitz for Medicaid
benefits.
10.

As a senior citizen of more than sixty-five (65) years, Mr. Berkowitz

already had Medicare coverage in effect in June of 2012. However, PL Firm and Lewis
told Mr. and Mrs. Berkowitz (the “Berkowitzes”) that Mr. Berkowitz needed to apply
for Medicaid coverage, in addition to the Medicare coverage he already had, in order to
obtain appropriate care.
11.

Medicare is a federal healthcare program available to all U.S. citizens aged

sixty-five (65) and older. Medicare is not a “means tested” program. Every senior
3

 citizen aged sixty-five (65) and older qualifies to be a Medicare beneficiary regardless
of how relatively poor or relatively wealthy such senior citizen Medicare beneficiary
might be.
12.

In contrast to Medicare, Medicaid is a “means tested” entitlement program

for poor people. Medicaid is a quasi-federal, quasi-state program that pays healthcare
reimbursements to healthcare providers who provide covered healthcare services to
poor people.
13.

In certain instances, poor people who are on Medicare can also obtain

Medicaid. “Dual eligibles” is the term for those persons who qualify for both Medicare
(e.g., because they are 65 years old or older, or meet some other defined Medicare
criteria, such as totally disability before age 65) and Medicaid (because they are poor).
14.

The Berkowitzes were not poor in the summer of 2012, and thus were not

qualified to be Medicaid beneficiaries.
15.

However, the Berkowitzes had experienced poverty in their earliest years,

and that reality shaped their lives and helped create the vulnerability that Defendants
exploited to manipulate, deceive and defraud the Berkowitzes when Mr. Berkowitz
became deathly ill in the summer of 2012.

4

 16.

Mr. Berkowitz was born in the Bronx on September 12, 1929, just a few

weeks before October 29, 1929 -- “Black Tuesday” -- the infamous date that historians
generally mark as the beginning of the Great Depression. Mrs. Berkowitz was born the
following year in the projects of lower Manhattan to a young mother who was raised in
an orphanage in Russia until the age of twelve, when she immigrated to New York. For
the Berkowitzes, childhood held few constants except for grinding poverty and the
stress of deep economic insecurity.
17.

The scarcity of the “Depression Era” profoundly influenced the trajectory

of the Berkowitzes’ lives. Over the following decades, the Berkowitzes worked hard
and lived frugally. They made enormous sacrifices to save a few pennies (and later a
few dollars) from each paycheck.
18.

After high school, Mr. Berkowitz joined the U.S. Army as a cook. He and

Mrs. Berkowitz met and then were married in 1951; he was twenty-two (22) and she
was twenty-three (23). After an honorable discharge from the Army, Mr. Berkowitz
worked long hours as a baker in New York. For a fifty (50) hour workweek, Mr.
Berkowitz earned about $150.00/week in the 1950s. The year he retired, he made the
biggest annual earnings of his working life: $26,000 for the year.
19.

Meanwhile, Mrs. Berkowitz worked at various jobs as a laborer. When
5

 piecemeal work was available (and it often was not), Mrs. Berkowitz would sew or do
other jobs in a doll-making sweatshop. When she could find work, she might make
perhaps $40/week. Part of each meager paycheck went into savings for the future. The
Berkowitzes wanted never again to experience the pain and powerlessness of their
respective childhoods.
20.

By June 8, 2012, when Mr. Berkowitz was hospitalized in Delray Beach,

the Berkowitzes had accumulated upwards of $1.3 million dollars, thanks to their
frugality, discipline and the “miracle” of compound interest.
21.

The Berkowitzes entrusted their money solely in conservative assets. All

of their funds were either in federally insured Certificates of Deposits (“CDs”) or in
U.S. Treasury Series EE Savings Bonds.
22.

Although the Berkowitzes were married for more than 60 years, they had

no children. In June 2012, when the Berkowitzes learned that Mr. Berkowitz was
gravely ill, they had no other close living relatives or friends.
23.

When Mr. Berkowitz was taken by ambulance to Delray Medical Center

and then transferred to Manor Care nursing home, he and Ms. Berkowitz were both
vulnerable and frightened about his failing health. In addition, the Berkowitzes were
not sophisticated about the cost of health care services, nor were they familiar with what
6

 Medicare would pay.
24.

Sometime shortly after Mr. Berkowitz was transferred to Manor Care, its

administrators arranged for Defendants Lewis and PL Firm to meet with the
Berkowitzes about applying for Medicaid.
25.

Manor Care administrators asked the PL Firm and Lewis to meet with the

Berkowitzes on the premise that Mr. Berkowitz needed to be qualified as a “dual
eligible” (i.e. that Mr. Berkowitz needed Medicaid on top of the Medicare he already
had as a senior citizen).
26.

The Berkowitzes did not ask for this referral.

27.

The referral was made at Manor Care’s and PL Firm’s instigation.

28.

Prior to being introduced to Lewis and PL Firm by Manor Care, the

Berkowitzes did not ask to become eligible for Medicaid.
29.

The Berkowitzes did not understand the difference between Medicare and

Medicaid, nor did the Berkowitzes understand the concept of being a “dual eligible.”
30.

Medicare, which Mr. Berkowitz was already on, would have (and

apparently did) pay for the first 100 days of nursing home care at Manor Care. The
only amount for which Mr. Berkowitz was responsible for those first 100 days was a
7

 small one-time co-pay of $144.50. See 42 USC 1395d(a)(2); 42 CFR 409.20 and
409.30; Medicare General Information Eligibility and Entitlement Manual (Revised 1026-2012), Chapter 3, Section 10.3.
31.

For just $144.50 out-of-pocket, Mr. Berkowitz would be covered for 100

days at Manor Care. Medicare paid the rest of Manor Care’s charges.
32.

With over $1.3 million dollars in liquid assets, Mr. Berkowitz was

categorically ineligible for Medicaid. He could not lawfully become a “dual eligible.”
He could not have lawfully obtained Medicaid.
33.

In June of 2012, the Berkowitzes had no way of knowing how long Mr.

Berkowitz would stay in Manor Care. Further, Mr. Berkowitz might have been cared
for in his own home for various periods of time with Medicare paying for all or
substantially all of the costs (without regard to those initial 100 days in Manor Care).
Under Medicare’s vast benefit program, there are many scenarios whereby Medicare
would have paid virtually all of Mr. Berkowitz’s costs beyond the 100 days.
34.

It is thus inexplicable why Manor Care introduced PL Firm and Princella

Lewis to the Berkowitzes for a “Medicaid application” almost from the moment that
Mr. Berkowitz arrived at Manor Care on or about June 15, 2012.

8

 35.

By July 3, 2012, only about 2-3 weeks after Mr. Berkowitz had entered

Manor Care (and months before Mr. Berkowitz would be responsible for anything other
than the $144.50 co-pay to Manor Care), PL Firm and Princella Lewis began
manipulating the Berkowitzes into believing that they must apply for Medicaid.
Defendant PL Firm told the Berkowitzes that Mr. Berkowitz would not receive health
care services unless the Berkowitzes applied for Medicaid.
36.

Defendant PL Firm told the Berkowitzes that they could “protect” the

Berkowitzes’ life savings of $1.3 million, but only if the Berkowitzes did as the PL
Firm directed in applying for Medicaid.
37.

On or about July 3, 2012, Defendant PL Firm purportedly had the

Berkowitzes sign a contract for “Medicaid Planning,” “Asset Protection Planning,” and
“Monthly Care Management.”
38.

For the “Medicaid Application” portion of the contracted services,

Defendants PL Firm and Lewis charged the Berkowitzes the unconscionable sum of
$55,000.
39.

PL Firm and Lewis falsely represented that $55,000 was the going rate for

the preparation of a Medicaid Application.

9

 40.

PL Firm and Lewis represented that the Medicaid Application was worth

this amount of money because it came with a “lifetime” of financial benefits for the
Berkowitzes.
41.

The so-called Medicaid Application and the $55,000 was fraudulent,

negligent, or otherwise incorrect on the part of Defendants PL Firm and Lewis. It was
and is impossible, improper, and inappropriate for the Berkowitzes to legally obtain
Medicaid benefits. Mr. Berkowitz was already covered by Medicare, which was likely
to cover the vast majority of the health care Mr. Berkowitz might need during his
illness. Of course, even if any of the medical expense was partially uncovered by
Medicare, the Berkowitzes had the means to pay the out-of-pocket themselves (and
without illegally burdening the Medicaid “means tested” program).
42.

In addition, Mr. Berkowitz had served honorably in the U.S. Military. As

an Army veteran, Mr. Berkowitz had the option of pursuing Veteran’s Administration
benefits even if there were amounts left uncovered for some reason by his Medicare
coverage.
43.

Nevertheless, Defendants PL Firm and Lewis charged the Berkowitzes

$55,000 for a Medicaid Application and the apparently Defendants PL Firm and Lewis
submitted an application to Medicaid so that the government would pay healthcare
10

 reimbursements for the Berkowitzes.
44.

Ruby Seymour-Barr (“Barr”) – a Florida attorney whose brother is the

father of Defendant Lewis’ child – introduced Lewis to Defendant Miller, an attorney
practicing in Miami-Dade County. Barr and Miller are long-time close personal friends.
Miller had and has no particular expertise in estate planning, asset protection, or similar
areas of practice.
45.

Lewis decided to have Miller prepare the legal documents that would give

PL Firm and Lewis immediate control over the Berkowitzes’ money.
46.

On or about July 19, 2012, Lewis met with Miller in his Miami-Dade

office. They discussed the Berkowitzes’ financial situation and that Lewis would bring
Mrs. Berkowitz to Miller’s office a few days later. Miller agreed that he would prepare
a Durable Power of Attorney for each of Mr. Berkowitz and Mrs. Berkowitz to execute
and sign over financial control of their money to PL Firm and Lewis.
47.

On July 24, 2012, Defendants Lewis, PL Firm and Miller undertook a

sequence of actions to assert physical, legal, and financial control over the Berkowitzes
and their money.
48.

On July 24, 2012, Lewis told Mrs. Berkowitz that she must consolidate all
11

 of her money, which until that date had been intentionally deposited in five (5) different
banks. The Berkowitzes had made sure to diversify their savings at five (5) different
banks because the federal deposit insurance program run by the Federal Deposit
Insurance Corporation (“FDIC”) covered losses of up to $250,000 per account holder at
any given bank. Because the Berkowitzes had around $1.3 million (several hundred
thousand of it in U.S. Savings Bonds), they decided to have accounts at several banks to
make sure their money was federally insured by the FDIC. By insisting that the
Berkowitzes consolidate their accounts into a single bank, Defendants Lewis and PL
Firm contradicted the Berkowitzes’ longstanding prudent plan of diversification among
the five (5) national banks, which were: SunTrust Bank (“SunTrust”), JPMorgan Chase
(“Chase”), PNC Bank (“PNC”), and BB&T.
49.

On July 24, 2012, an employee of Defendant PL Firm drove Mrs.

Berkowitz around Palm Beach County to four (4) of the five (5) different banks where
the Berkowitzes held accounts, specifically: SunTrust, Chase, and PNC.
50.

The Berkowitzes’ funds in those four (4) banks were held almost

exclusively in CDs. There are steep financial penalties for cashing in CDs prior to the
“maturity date.” However, Defendants Lewis and PL Firm demanded that Ms.
Berkowitz “liquidate” the CDs that day, regardless of the early withdrawal penalties that
12

 would be incurred. Defendants Lewis and PL Firm again told Mrs. Berkowitz that,
unless she did as she was told at each bank that day, Mr. Berkowitz would be turned
down for Medicaid and would not receive the health care he needed.
51.

At each successive bank, PL Firm not only transported Mrs. Berkowitz

(who does not drive) to the bank location, but also had one or more employees
accompany Mrs. Berkowitz inside each bank so that they were with her when she met a
bank officer at each bank. Mrs. Berkowitz did exactly as Defendants PL Firm and
Lewis insisted, closing all the Berkowitzes’ accounts at each bank they visited.
52.

For example, a PL Firm employee drove Mrs. Berkowitz to Chase. The

PL Firm employee escorted her inside, where Defendant PL Firm expressly required her
to close her accounts without regard to the cost of any penalty for prematurely cashing
her CDs. One particular withdrawal ticket from Chase, dated July 24, 2012, shows that
Mrs. Berkowitz withdrew $54,193.84.
53.

Mrs. Berkowitz was also driven to PNC on July 24, 2012. 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.”
54.

Then, also on July 24, 2012, Defendant PL Firm brought Ms. Berkowitz to

SunTrust, where the Berkowitzes had a safety deposit box of U.S. Government Series
13

 EE Bonds. SunTrust was the bank that held the greatest bulk of the Berkowitzes’
money, when compared to the other four (4) banks.
55.

At SunTrust, PL Firm instructed Mrs. Berkowitz to do two (2) things.

First, Mrs. Berkowitz must consolidate all the Berkowitzes’ money into SunTrust. Mrs.
Berkowitz did as she was told and deposited into SunTrust the funds that had been
“liquidated” at Chase and PNC earlier that day.
56.

Second, Mrs. Berkowitz was told to obtain a cashier’s check from

SunTrust payable directly to the “PL Firm” in the amount of $55,000. PL Firm advised
Mrs. Berkowitz 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.
57.

After what had already been a long day of day of driving Mrs. Berkowitz

around Palm Beach County from bank to bank on July 24, 2012, Lewis and Sheryl
Taylor (“Ms. Taylor”), who was then an employee of PL Firm, drove Mrs. Berkowitz
down to Miami to meet with Defendant Miller in his office.
58.

Mrs. Berkowitz was told that Defendant Miller had prepared the legal

documents that Mrs. Berkowitz needed to sign in order to help her husband get medical
care under Medicaid.
14

 59.

PL Firm did not offer any alternative attorneys who would have been

closer to where the Berkowitzes lived in Palm Beach County. PL Firm did not offer to
refer Mrs. Berkowitz to any other attorney at all. Defendants PL Firm and Lewis
exclusively selected Miller.
60.

Defendant Lewis, Mrs. Berkowitz, and Ms. Taylor arrived late at Miller’s

office, well after the appointment that Miller and Lewis had originally scheduled for 3
pm that day. When Mrs. Berkowitz, Lewis, and Ms. Taylor 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.
61.

Miller instructed Mrs. Berkowitz to execute the documents making

Defendants PL Firm and Lewis “agent” under the Power of Attorney. Ms. Taylor acted
as one witness for Mrs. Berkowitz’s signatures. Even though it is not customary for the
acting attorney to also act as a witness, Defendant Miller himself acted as the second
witness to the documents he had drawn at Lewis’ request. Defendant Miller’s secretary
then notarized the documents.
62.

Miller had a clear conflict of interest. He acted as an attorney for Mrs.

Berkowitz in preparing legal documents for her to sign. However, he had met privately
days earlier with Lewis, who directed him to prepare the very powers of attorney that
15

 would give her control over the Berkowitzes’ financial affairs. Miller did not disclose
this conflict of interest to Mrs. Berkowitz.
63.

Miller also did not disclose to the Berkowitzes that he had a long and close

relationship with Barr, who had close personal and business ties to Lewis and PL Firm.
64.

Miller did not discuss with Mrs. Berkowitz why Defendants Lewis and PL

Firm had arranged to drive Mrs. Berkowitz to Miami to see him rather than to an
attorney in Palm Beach County closer to where the Berkowitzes lived.
65.

The Durable Power of Attorney that Miller had Mrs. Berkowitz sign on

July 24, 2012 gave immediate, blanket authority to PL Firm and Lewis over Mrs.
Berkowitz’s financial assets. Miller did not offer Mrs. Berkowitz any alternative to the
Durable Power of Attorney.

Miller did not provide informed consent to the

Berkowitzes regarding any alternatives, such as setting up a valid Trust.
66.

Defendant Miller billed Mrs. Berkowitz 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 Defendants Lewis and PL Firm and its
agents.
67.

Miller never gave Mrs. Berkowitz either the originals or copies of the
16

 Durable Power of Attorney or the Healthcare Surrogate Designation that he had preprepared for Mrs. Berkowitz and had her execute on July 24, 2012.
68.

Instead, Defendant Miller had Mrs. Berkowitz’s original documents hand-

delivered to Defendants Lewis and PL Firm (even though Mrs. Berkowitz was Miller’s
actual client).
69.

Once Defendants PL Firm and Lewis received Mrs. Berkowitz’s original

Durable Power of Attorney and Designation of Healthcare Surrogate documents from
Defendant Miller, Defendants PL Firm and Lewis withheld both the originals and
copies of the documents from Mrs. Berkowitz. In fact, Defendants Lewis and PL Firm
never released the documents until they were subpoenaed and PL Firm produced them
to Plaintiff’s undersigned counsel on June 21, 2013 -- almost eleven (11) months after
Defendant Miller had Mrs. Berkowitz execute the documents in favor of PL Firm and
Lewis.
70.

On July 27, 2012, three (3) days after Defendant Miller had Mrs.

Berkowitz execute the Durable Power of Attorney and Designation of Healthcare
Surrogate documents giving immediate power and control over money and healthcare
decisions to Defendants Lewis and PL Firm, Defendant Miller travelled from MiamiDade County to Manor Care in Palm Beach County to have Mr. Berkowitz execute
17

 similar legal documents pre-prepared by Miller. Miller never spoke with Mr. Berkowitz
prior to arriving at his bedside at Manor Care. When Defendant Miller arrived, he
instructed Mr. Berkowitz to execute pre-prepared Durable Power of Attorney and
Designation of Health Care Surrogate documents giving immediate control of his
financial and healthcare decisions to Defendants Lewis and PL Firm.
71.

The Durable Power of Attorney that Defendant Miller had each of Mr.

Berkowitz and Mrs. Berkowitz execute in favor of PL Firm and Lewis is non-compliant
with existing Florida Statutes. Among other irregularities, the documents cite to Florida
statutes that had been repealed by the Florida Legislature well before Miller prepared
the documents for the Berkowitzes.
72.

For example, the Durable Power of Attorney prepared by Miller for each

of the Berkowitzes states in Section 16 that it shall be construed and interpreted as “a
durable power of attorney as provided for in Florida Statute § 709.08.” However, the
Florida legislature substantially overhauled Florida’s power of attorney statutes in the
2011 session of the Florida legislature and repealed Chapter 709 of the Florida Statutes.
Florida Statute § 709.08, though cited in Miller’s document, had been repealed
effective October 1, 2011. (2011 Fla. ALS 210; 2011 Fla. Laws ch. 210; 2011 Fla. SB
670).
18

 73.

Further, the Berkowitzes’ Durable Power of Attorney documents (the

“POAs”) prepared by Miller did not comply with the “Florida Power of Attorney Act”
(Fla. Stat. § 709.2101 et seq.). The Florida Power of Attorney Act became effective
October 1, 2011, months before Miller had the Berkowitzes execute the POAs at the
end of July 2012. For example, when Miller prepared the POAs, it was not lawful for
PL Firm to be the agent. Pursuant to Florida Statute § 709.2105(1), PL Firm was not
qualified to be an agent because PL Firm was neither (and is neither) (a) a natural
person, nor (b) “a financial institution that has trust powers, has a place of business in
this state, and is authorized to conduct trust business in this state.”
74.

On or about August 3, 2012, PL Firm opened at least two accounts with

New York Community Bank, d/b/a AmTrust Bank (“AmTrust”): the “321 Account”
and the “311 Account.” PL Firm opened the 321 Account as an “Interest On Lawyers
Trust Account” (IOLTA) despite the fact that Lewis is not a lawyer and PL Firm is not
a law firm.
75.

PL Firm opened the two AmTrust accounts with the $55,000 SunTrust

cashier’s check made payable to PL Firm for the illegal “Medicaid Application.” PL
firm deposited $35,000 into the 311 Account and the remaining $20,000 into the 321
Account.
19

 76.

On or about August 30, 2012, Defendant Lewis took Mrs. Berkowitz to

BB&T bank – the one (1) bank that PL Firm had not taken Mrs. Berkowitz to on June
24, 2012, when PL Firm drove her to four (4) of her banks before transporting Mrs.
Berkowitz to Defendant Miller in Miami.
77.

Defendant Lewis accompanied Mrs. Berkowitz to BB&T bank and

directed her to close all her CDs. As with the prior banks, Mrs. Berkowitz was
instructed by PL Firm to do this despite the cost of the penalties for early withdrawals.
Once the CDs were terminated and the bank accounts at BB&T closed, Lewis and PL
Firm instructed Mrs. Berkowitz to prepare four (4) checks totaling $189,650.39 payable
to “PL Firm Trust.”
78.

Lewis and PL Firm took the four (4) BB&T checks totaling $189,650.39

from Mrs. Berkowitz. Lewis and PL Firm refused to give Mrs. Berkowitz any kind of
receipt and refused to tell Mrs. Berkowitz where they were putting the $189,650.39 or
what they were doing with the money.
79.

Also on or about August 30, 2012, Lewis and agents of PL Firm drove

Mrs. Berkowitz back to SunTrust, where the Berkowitzes had several hundred thousand
dollars in various accounts. The Berkowitzes also had approximately 130 U.S.
Government Series EE Savings Bonds (“Government Bonds”) in their safety deposit
20

 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. Further, cashing in the Government Bonds would halt the compounding of
additional interest earnings in the future. There was no legitimate to reason to cash the
Government Bonds, and cashing the Government Bonds was categorically
disadvantageous to the Berkowitzes.
80.

Nevertheless, Lewis and PL Firm 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.
Lewis, who had obtained legal authority over Mrs. Berkowitz’s finances under the legal
instruments prepared by Miller, stated that she alone had legal authority over Mrs.
Berkowitz due to the POA prepared by Miller, and demanded that Mrs. Berkowitz cash
in all of the Government Bonds.
81.

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 and completely unnecessary federal income tax liability for
the Berkowitzes in the approximate amount of $82,000.
21

 82.

It took several days from August 30, 2012, for SunTrust to liquidate the

Government Bonds through the U.S. Treasury.
83.

On or about September 14, 2012, after all of the Government Bonds had

been cashed and the proceeds had cleared, Defendant Lewis went to SunTrust alone and
without Mrs. Berkowitz. Lewis proceeded to clean out virtually all of the Berkowitzes’
remaining funds at SunTrust. Using the Power of Attorney that Miller had the
Berkowitzes execute in favor of PL Firm, PL Firm 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.
84.

On September 11 and 17, 2012, PL Firm deposited approximately

$1,204,123.47 of the Berkowitzes’ converted funds into the 321 Account, as follows:
Date
09/11/12

Source

Amount

BB&T

$17,000.00

BB&T

$55,999.67

BB&T

$58,325.36

BB&T

$58,325.36
Subtotal

09/17/12

SunTrust

$514,473.08

SunTrust

$500,000.00
22

$189,650.39

 Subtotal $1,014,473.08
Total

85.

$1,204,123.47

Thus, between August 3, 2012 and September 17, 2012, PL Firm deposited

$1,224,123.47 of the Berkowitzes’ money into the 321 Account and $35,000.00 of the
Berkowitzes’ money into the 311 Account, for a total of $1,259,123.47.
86.

PL Firm then used the Berkowitzes’ money in the 321 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 attorney is not permitted to pay itself fees for non-agent duties, unless
the power of attorney specifically authorizes such payments and, even with such express
authorization, only if the agent is acting strictly and solely in the interest of the
beneficiary.
87.

For example, on September 17, 2012, PL Firm wrote a check to itself in

the amount of $56,000 for “auto reimbursement 9/12 care management.” A copy of the
cancelled check is annexed hereto as “Exhibit C.” However, the funds were actually
used to purchase a 2013 Mercedes Benz, Series E350, Model: E Class, VIN
WDDKJ5KB5DF188458 registered to “Princella Lewis.”
23

 88.

Even without Defendants’ self-dealing, it was unlawful for PL Firm to

ever act as an “agent” for the Berkowitzes under a power of attorney. PL Firm does not
meet the criteria to be an agent under Florida Statutes, particularly Fla. Stat. §
709.2105(1), which requires that a company cannot be an “agent” under a power of
attorney in Florida unless it is a “financial institution that has trust powers.” PL Firm is
not a “financial institution” as defined in the Florida Statutes. 1
89.

Defendants abused and misused their positions of trust and influence over

the Berkowitzes, taking advantage of Mr. Berkowitz when he was in a frail condition in
a nursing facility and dying of cancer and taking advantage of Mrs. Berkowitz who was
distraught about her dying husband.
90.

Since September 14, 2012, when the PL Firm took the Berkowitzes’

money from SunTrust, Mrs. Berkowitz has repeatedly insisted on knowing the location
of her money and to see statements and documentation regarding the funds. PL Firm
refused all such requests. Defendants PL Firm and Lewis refused to provide the

1

The Florida Power of Attorney Act defines “financial institution in Florida Statute § 709,2102 as
”Financial institution” having the same meaning as in Florida Stat. § 655.005, which in turn states:
“’Financial institution’ means a state or federal savings or thrift association, bank, savings bank, trust
company, international bank agency, international banking corporation, international branch,
international representative office, international administrative office, international trust company
representative office, credit union, or an agreement corporation operating pursuant to s. 25 of the
Federal Reserve Act, 12 U.S.C. ss. 601 et seq. or Edge Act corporation organized pursuant to s. 25(a)
of the Federal Reserve Act, 12 U.S.C. ss. 611 et seq.”
24

 Berkowitzes with any statements, receipts, or accounting of what had happened to the
Berkowitzes’ money.
91.

Eventually, after months of Plaintiff repeatedly requesting information

regarding the Berkowitzes’ 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 of the money.
92.

Lewis 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, that Lewis would have
Mrs. Berkowitz “declared incapacitated” and institutionalized.
93.

The Berkowitzes subsequently retained the undersigned counsel who

demanded a return of their funds. Defendant PL Firm refused to return the money,
citing a series of excuses.
94.

Eventually, after the Berkowitzes filed a lawsuit and moved for emergency

injunctive relief, the PL Firm stated, through its counsel, that hundreds of thousands of
dollars of the Berkowitzes’ money had been taken by PL Firm for undefined,
unauthorized, and unaccounted-for “services” allegedly performed by PL Firm for the
25

 Berkowitzes, but that $750,000 remained unspent.
95.

PL Firm finally returned such $750,000 at the order of the Court, but then

refused to return the remaining funds or to give an explanation for what has happened to
the missing money. After the Berkowitzes made extensive discovery efforts, on or
about June 21, 2013, during a deposition, Lewis stated that her belief that Defendants
Lewis and PL Firm owed the Berkowitzes an additional amount of $85,148.92, which
they paid in two checks ($84,675.84 + $473.08) during the deposition. However, PL
Firm and Lewis also stated that they had kept no records or receipts of amounts
collected from the Berkowitzes nor had they provided records or statements to the
Berkowitzes for amounts charged to the Berkowitzes for alleged “services” provided by
PL Firm and Lewis.
96.

After returning $750,000 to the Berkowitzes at the order of the Court, and

returning another $85,148.92 more at the deposition, PL Firm and Lewis, through a
“Summary of Bank Statement Activity” provided by their attorney, conceded that at
least another $312,244 of the Berkowitzes’ money is due and owing to Plaintiff. A
copy of the Summary of Bank Statement Activity is annexed hereto as “Exhibit D.”
97.

Despite demand, PL Firm and Lewis have not tendered the amount of

$312,244, despite the fact that they do not dispute such amount is due and owing to
26

 Plaintiff.
98.

In addition, Lewis and PL Firm continue to claim that they applied for

Medicaid on behalf of Mr. Berkowitz but have refused all requests to provide copies of
documents that allegedly make such application to Medicaid for Mr. Berkowitz.
99.

Mr. Berkowitz died on July 10, 2013.

100. 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, the
$33,751.38 in Medicaid paid on behalf of Mr. Berkowitz. A copy of the Summary of
the State of Claim by State of Florida, Agency for Health Care Administration, is
annexed hereto as “Exhibit E.”
101. After the Florida Bar Foundation notified AmTust that the 321 Account
could not be maintained as an IOLTA account because Lewis is not an attorney and PL
Firm is not a law firm, AmTrust simply converted the 321 Account into a commercial
account controlled by PL Firm. AmTrust did not notify Plaintiff of the conversion of
the 321 Account from an IOLTA account into a commercial account despite the fact
that checks from the Berkowitzes made payable to “PL Firm Trust” had been deposited
into the account.
27

 102. Plaintiff has retained the undersigned counsel and is obligated to pay
reasonable fees and costs for such services.
103. Plaintiff have performed all conditions precedent, or they have occurred,
been waived, or otherwise been excused.
COUNT I
EMERGENCY MANDATORY INJUNCTION –
ALL DEFENDANTS
104. Plaintiff adopts by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
105. The cashing of the Government Bonds -- done at the demand of PL Firm
and Lewis and effectuated pursuant to the legal documents prepared by Miller in favor
of PL Firm -- subjected Plaintiff to a substantial 2012 tax liability.
106. Further, in order to even complete her 2012 Federal income tax return,
Plaintiff needs documentation and information withheld by Defendants.
107. Plaintiff also needs documentation and information withheld by
Defendants to determine Mr. Berkowitz’s Medicaid status and to assess whether
Defendants did, in fact, attempt to qualify Mr. Berkowitz for Medicaid.
108. In addition, Plaintiff needs the funds improperly retained by Defendants in
28

 order to pay her substantial tax liability caused by the actions of Defendants.
109. Defendants are still holding a minimum of $312,244 of Defendants’ funds
in the 321 Account even by Defendants’ own accounting pursuant to their “Summary of
Bank Statement Activity.”
110. In addition, there is no dispute that all of the $35,000 plus interest in the
311 Account belongs to Plaintiff.
111. Despite demand, however, Defendants have failed and refused to return
even the undisputed amount of funds belonging to Plaintiff.
112. Plaintiff will suffer irreparable harm if Defendants are not required to
return all documents pertaining to Plaintiff and to return the undisputed amount of
Plaintiff’s funds still held by Defendants.
113. Plaintiff has no adequate remedy at law.
114. Plaintiff has a substantial likelihood of success on the merits.
115. An injunction will serve the public interest by protecting the frail and
elderly Plaintiff from continued abuse.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter an
emergency mandatory injunction against Defendants ordering that:
29

 i.

Defendants and/or their agents and fiduciaries shall immediately

provide to Plaintiff all documents pertaining to Frances and/or Jerry Berkowitz,
whether obtained directly or indirectly from Plaintiff or any third party, including
any entity or governmental body; and
ii.

Immediately tender the undisputed amount of $312,244 plus interest

from the 321 Account; and
iii.

Immediately tender the undisputed amount of $35,000 plus interest

from the 311 Account; and
iv.

For all further relief that the Court deems appropriate under the

circumstances.
COUNT II
EQUITABLE ACCOUNTING – DEFENDANTS PL FIRM AND LEWIS
116. Plaintiff adopts by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
117. Plaintiff and Defendants shared a fiduciary relationship and/or entered a
complex transaction involving extensive and/or complicated accounts.
118. A remedy at law is inadequate; it is not clear that a remedy at law is as full,
30

 adequate and expeditious as it is in equity.
WHEREFORE, Plaintiff requests that the Court enter judgment in favor of
Plaintiff and order Defendants PL Firm and Lewis to provide an equitable accounting
and such other relief this Court deems just and proper. Specifically, Plaintiff demands
that PL Firm and Lewis shall (a) complete an accounting of all of Plaintiff’s funds
obtained by PL Firm (b) provide an accounting of all of the use of Plaintiff’s funds
(including, without limitation, all direct and/or third-party costs or expenses) (c)
account for all of the funds held in all Amtrust Accounts from July 24, 2012 through
the present, and (d) provide to Plaintiff information regarding any and all locations or
accounts of Plaintiff’s money or property taken by PL Firm and/or Lewis -- despite
whether PL Firm or Lewis assert that any portion of such money was “earned” by them
or any other person -- and the specifics in connection therewith.
COUNT III
CIVIL THEFT – DEFENDANTS PL FIRM AND LEWIS
119. Plaintiff adopts by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
120. Defendants Lewis and PL Firm knowingly obtained at least $1.259 Million
31

 from Plaintiff with the intent to deprive Plaintiff of the right to such property and to
appropriate the property to Defendants’ own use in violation of Section 772.11 of the
Florida Statutes.
121. Plaintiff has been injured because of Defendants’ violation of Section
772.11 and has lost at least $1.259 Million in funds plus interest from the date of the
theft.
122. Plaintiff, on March 22, 2013, through the undersigned counsel, served
Defendants with written notice of the urgent demand for the return of over $1 million
dollars of Plaintiff’s funds, which letter is attached as Exhibit A.
123. Plaintiff, on March 27, 2013, through the undersigned counsel, made a
written demand for $3,208,419.00, which amount represents three times the amount
known by Plaintiff as of the date of the March 27, 2013 letter to have been taken by
Defendants. A copy of the written demand is attached to this complaint as Exhibit B.
124. Although Defendants eventually returned a portion of the demanded funds,
such was more than 30 days after it was demanded in the letter of March 27, 2013.
Further, Defendants did not, within 30 days of such written demand on March 27, 2013,
pay the treble damages as would be required to avoid additional costs, including
attorney’s fees, pursuant to Florida law.
32

 WHEREFORE, Plaintiff demands judgment against Defendants PL Firm and
Lewis and each of them for general damages, damages in the amount of three times the
amount taken and demanded to be returned by Plaintiff, pre and postjudgment interest,
reasonable attorney’s fees and costs, and for such other and further relief, in law or in
equity, as this Court deems just and proper under the circumstances.
COUNT IV
CIVIL RICO (FLORIDA) – ALL DEFENDANTS
125. Plaintiff adopts by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
126. Defendants violated section 772.103, Florida Statutes, and Plaintiff is
entitled to a civil, statutory remedy under section 772.104(1).
127. Section 772.103, Florida Statutes, provides that:
It is unlawful for any person:
(1) Who has with criminal intent received any proceeds derived,
directly or indirectly, from a pattern of criminal activity or through
the collection of an unlawful debt to use or invest, whether directly
or indirectly, any part of such proceeds, or the proceeds derived
from the investment or use thereof, in the acquisition of any title to,
or any right, interest, or equity in, real property or in the
establishment or operation of any enterprise.
33

 (2) Through a pattern of criminal activity or through the
collection of an unlawful debt, to acquire or maintain, directly or
indirectly, any interest in or control of any enterprise or real
property.

(3) Employed by, or associated with, any enterprise to conduct or
participate, directly or indirectly, in such enterprise through a
pattern of criminal activity or the collection of an unlawful debt.

(4) To conspire or endeavor to violate any of the provisions of
subsection (1), subsection (2), or subsection (3).

128. Section 772.104(1), Florida Statutes, provides that:
Any person who proves by clear and convincing evidence that he or
she has been injured by reason of any violation of the provisions of
s. 772.103 shall have a cause of action for threefold the actual
damages sustained and, in any such action, is entitled to minimum
damages in the amount of $200, and reasonable attorney’s fees and
court costs in the trial and appellate courts.

129. Defendants did conspire or endeavor to violate the provisions of subsection
(1), subsection (2), and/or subsection (3) of Florida Statute 772.103.
WHEREFORE, Plaintiff demands judgment against Defendants PL Firm, Lewis,
and Miller, together, and each of them individually, for general damages, damages in
34

 the amount of three times the actual damages sustained, pre and postjudgment interest,
reasonable attorney’s fees and costs, and for such other and further relief, in law or in
equity, as this Court deems just and proper under the circumstances.
COUNT V
CIVIL CONSPIRACY (COMMON LAW) – ALL DEFENDANTS
130. Plaintiff adopts by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
131. Defendants are parties to a civil conspiracy.
132. Defendants conspired to do an unlawful act.
133. Defendants conspired to take control of the over $1 Million belonging to
Plaintiff.
134. All Defendants owed a duty to Mr. Berkowitz and Mrs. Berkowitz to
protect Mr. Berkowitz and Mrs. Berkowitz from theft.
135. Defendant Miller owed a duty to Plaintiff not to have Plaintiff give away
complete and immediate legal control over their finances and healthcare decisions to
Lewis and PL Firm, who were strangers to the Berkowitzes.

35

 136. Defendants Lewis and PL Firm owed a duty to Plaintiff to not wrongfully
take and control the $1 Million plus of funds from Plaintiff.
137. Defendants committed an overt act in further of the conspiracy when they
arranged to have Plaintiff execute legal documents that gave total control over
Plaintiff’s funds to PL Firm and Lewis and promptly resulted in the transfer of over $1
million from Plaintiff to PL Firm.
138. Defendants’ conspiracy and their respective overt acts caused Plaintiff to
suffer damages.
WHEREFORE, Plaintiff respectfully request this Honorable Court to enter a
judgment for damages against Defendants, pre and post judgment interest, and such
other and further relief as this Court deems just and proper under the circumstances.
COUNT VI
CONVERSION – DEFENDANTS PL FIRM and LEWIS
139. Plaintiff adopts by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
140. Defendants PL Firm and Lewis converted to their own use over $1 Million
that belongs to Plaintiff.
36

 WHEREFORE, Plaintiff demands judgment for damages against Defendants, pre
and post judgment interest, and such other and further relief as this Court deems just
and proper under the circumstances.
COUNT VII
FLORIDA UNFAIR AND DECEPTIVE TRADE PRACTICES ACT –
ALL DEFENDANTS
141. Plaintiff adopts by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
142. Pursuant to Florida Statute §501.204(1) it is unlawful to conduct unfair or
deceptive acts or practices in any trade or commerce.
143. The Defendants’ acts described herein constitute unfair and deceptive trade
practices in the business dealings that the Defendants had with Plaintiff.
144. Florida Statute §501.211(2) provides the following:
(2) 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.

37

 145. Thus, Plaintiff is entitled to actual damages incurred as a result of
Defendants’ deceptive and unfair trade practices and to attorney’s fees pursuant to
Florida Statute §501.2105.
WHEREFORE, Plaintiff respectfully request this Honorable Court enter a
judgment for actual damages against Defendants, pre and post judgment interest,
attorney’s fees and costs, and such other and further relief as this Court deems just and
proper under the circumstances.
COUNT VIII
BREACH OF FIDICUARY DUTY –MILLER
146. Plaintiff adopts by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
147. At the time of the acts that gave rise to this action, Miller, acting as
attorney for each of the Berkowitzes and charging the Berkowitzes legal fees for such
services, shared a relationship whereby each Plaintiff (a) reposed trust and confidence
in Miller, and (b) Miller undertook such trust and assumed a duty to advise each
Plaintiff with respect to each Plaintiff’s healthcare and financial decisions.
148. Miller breached his fiduciary duty to each Plaintiff.

38

 149. The breaches by Miller caused Plaintiff to suffer damages.
WHEREFORE, Plaintiff respectfully request this Honorable Court enter a
judgment for damages against Defendant Miller, pre and post judgment interest, and
such other and further relief as this Court deems just and proper under the
circumstances.
COUNT IX
BREACH OF FIDICUARY DUTY –
DEFENDANTS LEWIS AND PL FIRM
150. Plaintiff adopt by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
151. At the time of the acts that gave rise to this action, PL Firm and Lewis,
acting as legal agent for each of the Berkowitzes, shared a relationship whereby each
Plaintiff (a) reposed trust and confidence in PL Firm and Lewis, and (b) PL Firm and
Lewis undertook such trust and assumed a duty to advise each Plaintiff with respect to
each Plaintiff’s healthcare and financial decisions.
152. PL Firm and Lewis breached their fiduciary duties to each Plaintiff.
153. The breaches by PL Firm and Lewis caused Plaintiff to suffer damages.

39

 WHEREFORE, Plaintiff respectfully request this Honorable Court enter
judgment for damages against Defendants PL Firm and Lewis, pre and post judgment
interest, and such other and further relief as this Court deems just and proper under the
circumstances.
COUNT X
CONSTRUCTIVE FRAUD – ALL DEFENDANTS
154. Plaintiff adopts by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
155. Defendants committed constructive fraud against Mr. Berkowitz and Mrs.
Berkowitz by misusing their positions of trust and influence over the Berkowitzes.
156. Defendants each had a duty to the Berkowitzes under a confidential or
fiduciary relationship that has been abused.
157. Defendants took unconscionable advantage of Plaintiff.
158. Defendants made misrepresentations and concealed material information
from Plaintiff causing Plaintiff to take actions that led to the loss of Plaintiffs’ money
and additional damages such as negative tax consequences and financial penalties for
cashing in bank certificates of deposit prior to the maturity dates.
40

 159. Defendants used their positions of trust and influence over Plaintiff to
allow Lewis and PL Firm to obtain control of over $1 Million of funds belonging to
Plaintiff.
160. Defendants committed constructive fraud by using their positions of trust
and influence over the Berkowitzes, while Mr. Berkowitz was dying of cancer, to enrich
Defendants, to wrongfully obtain over $1 Million in funds belonging to Plaintiff, and to
charge Defendants amounts of money that are commercially unreasonable and/or
unconscionable.
161. Defendants have committed constructive fraud against Plaintiff because
Defendants, regardless of whether they “intended” to do so or not, abused their
positions of trust and took unreasonable and unfair advantage of the Berkowitzes, who
were vulnerable due to their age and due to Mr. Berkowitz’s terminal cancer.
162. The transactions that Defendants caused Plaintiff to make resulted in the
Plaintiff being damaged by Defendants and such damaging transactions had the same
effect as though such damaging actions by Defendants were intended. This constitutes
constructive fraud under Florida law.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter a
judgment for damages against Defendants, pre and post judgment interest, attorney’s
41

 fees and costs, and such other and further relief as this Court deems just and proper
under the circumstances.
COUNT XI
FRAUD – ALL DEFENDANTS
163. Plaintiff adopts by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
164. Defendants made one or more false statements of facts to the Berkowitzes
in advising the Berkowitzes. These false statements include, without limitation, that (a)
the Berkowitzes needed to take certain actions in order to qualify Mr. Berkowitz for
Medicaid, (b) Mr. Berkowitz would qualify for Medicaid if the Berkowitzes took the
actions they were advised and pressured by Defendants to take, (c) Mr. Berkowitz
would not receive the healthcare he needed if the Berkowitzes failed to do as
Defendants instructed, (d) the Berkowitzes’ money was being put in a Trust to be
controlled by the Berkowitzes for the benefit of the Berkowitzes, (e) the Berkowitzes
needed to cash in their Bonds, (f) the Berkowitzes needed to execute and deliver the
financial and healthcare documents prepared by Miller, which gave absolute, immediate
control over the Berkowitzes’ finances and healthcare decisions to PL Firm and Lewis.

42

 165. The statements made by Defendants were known by Defendants to be false
at the time that they were made.
166. The statements made were for the purpose of inducing the Berkowitzes to
act in reliance thereon.
167. The actions by the Berkowitzes, including executing and delivering the
documents prepared by Defendant Miller, which gave control over the Berkowitzes’
finances and healthcare decisions to Defendants PL Firm and Lewis, were in reliance on
the representations made by Defendants to the Berkowitzes.
168. This resulted in damage to Plaintiff, who has lost money and who has been
unable to obtain an accounting as to the status of Plaintiff’s money.
WHEREFORE, Plaintiff respectfully requests this Court to enter judgment for
damages against Defendants, pre and post judgment interest, and any other relief this
Honorable Court deems just and proper under the circumstances.
COUNT XII
INVESTMENT ADVISERS ACT OF 1940 –
DEFENDANTS LEWIS AND PL FIRM

43

 169. Plaintiff adopts by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
170. Defendants violated the Investment Advisers Act of 1940 by failing to
register as an investment adviser with the Securities and Exchange Commission.
171. Section 203 of the Investment Advisers Act of 1940 provides that:
(a) Except as provided in subsection (b) and section 203A, it
shall be unlawful for any investment adviser, unless
registered under this section, to make use of the mails or any
means or instrumentality of interstate commerce in
connection with his or its business as an investment adviser.
172. Under the Investment Advisers Act of 1940, Section 202(11), an
investment adviser is defined as:
any person who, for compensation, engages in the business
of advising others, either directly or through publications
or writings, as to the value of securities or as to the
advisability of investing in, purchasing, or selling
securities, or who, for compensation and as part of a
regular business, issues or promulgates analyses or reports
concerning securities;

173. Defendants violated the Investment Advisers Act of 1940, Section 206
which provides that:
It shall be unlawful for any investment adviser, by use of the
mails or any means or instrumentality of interstate
commerce, directly or indirectly—
44

 (1)

to employ any device, scheme, or artifice to defraud
any client or prospective client;

(2) to engage in any transaction, practice, or course of
business which operates as a fraud or deceit upon any client
or prospective client;
(3) acting as principal for his own account, knowingly to
sell any security to or purchase any security from a client, or
acting as broker for a person other than such client,
knowingly to effect any sale or purchase of any security for
the account of such client, without disclosing to such client
in writing before the completion of such transaction the
capacity in which he is acting and obtaining the consent of
the client to such transaction. The prohibitions of this
paragraph (3) shall not apply to any transaction with a
customer of a broker or dealer if such broker or dealer is not
acting as an investment adviser in relation to such
transaction; or
(4)
to engage in any act, practice, or course of business
which is fraudulent, deceptive, or manipulative. The
Commission shall, for the purposes of this paragraph (4) by
rules and regulations define, and prescribe means reasonably
designed to prevent, such acts, practices, and courses of
business as are fraudulent, deceptive, or manipulative.
174. Defendants Lewis and PL Firm advertise on their website the
service of providing “a comprehensive assessment and long term financial
planning” as a regular part of their business and have failed to register as an
investment adviser with the Securities and Exchange Commission.

45

 175. Defendants made one or more false statements of facts to the
Berkowitzes in advising the Berkowitzes in regard to their finances. These false
statements include, without limitation, that (a) the Berkowitzes’ money was
being put in a Trust to be controlled by the Berkowitzes for the benefit of the
Berkowitzes, (b) the Berkowitzes needed to cash in their Bonds, (c) the
Berkowitzes needed to give absolute, immediate control over the Berkowitzes’
finances to PL Firm and Lewis.
WHEREFORE, Plaintiff respectfully requests this Court to enter
judgment for damages against Defendants, pre and post judgment interest, and
any other relief this Honorable Court deems just and proper under the
circumstances.
COUNT XIII
NEGLIGENT FINANCIAL ADVICE –
DEFENDANTS LEWIS AND PL FIRM
176. Plaintiff adopts by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
177. Plaintiff is owed a duty of care by Defendants Lewis and PL Firm when
they held themselves out to provide Plaintiff with “Medicaid Planning,” “Asset
46

 Protection Planning,” and “Monthly Care Management.”
178. Defendants Lewis and PL Firm owed Plaintiff a duty of care when
Defendants represented that they were qualified to advised on and manage Plaintiff’s
funds.
179. Defendants Lewis and PL Firm owed Plaintiff a duty of care when
Defendants took custody of such funds.
180. Defendants Lewis and PL Firm owed Plaintiff a duty of care when
Defendants advised Plaintiff to cash in Plaintiff’s Certificate of Deposits and incur
penalties for early withdrawal.
181. Defendants breached that duty of care when Lewis and PL Firm told Mrs.
Berkowitz that she must cash in all of the Government Bonds despite Mrs. Berkowitz’s
protests.
182. As a result of the financial advice given by, actions taken by, and/or
omissions of information by Defendants Lewis and PL Firm in breach of said
Defendants duty of care with regard to Plaintiff’s finances and financial planning, the
Plaintiff incurred an unnecessary and costly federal income tax liability in the
approximate amount of $82,000 and also incurred thousands of dollars of penalties for
47

 premature withdrawal of certificates of deposits in various banks.
WHEREFORE, Plaintiff respectfully requests this Court to enter judgment for
damages against Defendants, pre and post judgment interest, and any other relief
this Honorable Court deems just and proper under the circumstances.
COUNT XIV
UNJUST ENRICHMENT – DEFENDANTS LEWIS AND PL FIRM
183. Plaintiff adopts by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
184. Plaintiff has conferred a benefit on the Defendants Lewis and PL Firm,
who each have knowledge thereof.
185. Defendants Lewis and PL Firm voluntarily accepted and retained the
benefit conferred on them by Plaintiff.
186. The circumstances render such Defendants’ retention of the benefit
inequitable unless Lewis and PL Firm pay to Plaintiff the value of the benefit.
187. Lewis and PL Firm have been unjustly enriched at the expense of Plaintiff.
Plaintiff is entitled to damages as a result of such unjust enrichment, including the
disgorgement of all monies unlawfully accepted by Lewis and PL Firm from Plaintiff.
48

 WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter a
judgment for monetary damages against Defendants Lewis and PL Firm for unjust
enrichment, and for such other and further relief as this Court deems just and proper
under the circumstances.
COUNT XV
LEGAL MALPRACTICE – DEFENDANT MR. MILLER
188. Plaintiff adopts by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
189. Defendants’ attorney, Miller, accepted employment by the Berkowitzes as
the Berkowitzes’ legal counsel.
190. Defendant Miller neglected a reasonable duty owed to the Berkowitzes.
191. Defendant Miller’s negligence was the proximate cause of Plaintiff’s
damages.
192. Plaintiff suffered damages.
WHEREFORE, Plaintiff demands damages against Defendant Miller for legal
malpractice and such other relief this Court deems just and proper.

49

 COUNT XVI
NEGLIGENT ADVICE AND FILING OF FILING MEDICAID
APPLICATION AND FAILURE TO DISCLOSE
ALTERNATIVES –
DEFENDANTS LEWIS AND PL FIRM
193. Plaintiff adopts by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
194. Plaintiff is owed a duty of care by Defendants Lewis and PL Firm when
they held themselves out to provide Plaintiff with “Medicaid Planning.”
195. Defendants Lewis and PL Firm owed Plaintiff a duty of care when
Defendants represented that the Berkowitzes would receive a “lifetime” of benefits for
completing a Medicaid Application.
196. Defendants Lewis and PL Firm owed Plaintiff a duty of care when
Defendants took $55,000 as a fee for such Medicaid Application.
197. Defendants Lewis and PL Firm owed Plaintiff a duty of care to explain the
alternatives to the Berkowitzes, including without limitation that Mr. Berkowitz may
be eligible for Veteran’s Administration benefits and that Mr. Berkowitz was receiving
certain benefits from Medicare and that he had other various options for any
deductibles, co-pays, or other amounts for his care, to the extent not reimbursed by
50

 Medicare.
198. Defendants breached that duty of care by failing to disclose material facts,
failing to disclose alternatives, and by representing to the Berkowitzes and to the State
of Florida that the Berkowitzes were eligible for Medicaid reimbursements without
obligation to repay.
199. As a result of the negligent advice given by, negligent actions taken by,
and/or negligent omissions of information by, Defendants Lewis and PL Firm in
breach of said Defendants duty of care with regard to Plaintiff’s the Medicaid
Application, Medicaid planning, the Berkowtizes not only paid $55,000 for a Medicaid
Application that was wrong, unnecessary, and/or inappropriate, but also the State of
Florida, Agency for Health Care Administration claims the amount paid on behalf of
Mr. Jerry Berkowitz – $33,751.38 – is “now due”.
WHEREFORE, Plaintiff respectfully requests this Court to enter judgment for
damages against Defendants, pre and post judgment interest, and any other relief
this Honorable Court deems just and proper under the circumstances.

51

 COUNT XVII
MISLEADING ADVERTISING – DEFENDANTS PL FIRM AND LEWIS
200. Plaintiffs adopt by reference, as if set out fully and completely in this
Count, the following statements of this Complaint: Paragraphs 1 through 103.
201. Florida Statute §817.41(1) provides the following:
It shall be unlawful for any person to make or disseminate or
cause to be made or disseminated before the general public of
the state, or any portion thereof, any misleading advertisement.
Such making or dissemination of misleading advertising shall
constitute and is hereby declared to be fraudulent and unlawful,
designed and intended for obtaining money or property under
false pretenses.

202. Florida Statute §817.40(5) provides the following definition:
The phrase “misleading advertising” includes any statements
made, or disseminated, in oral, written, or printed form or
otherwise, to or before the public, or any portion thereof, which
are known, or through the exercise of reasonable care or
investigation could or might have been ascertained, to be untrue
or misleading, and which are or were so made or disseminated
with the intent or purpose, either directly or indirectly, of
selling or disposing of real or personal property, services of any
nature whatever, professional or otherwise, or to induce the
public to enter into any obligation.

203. PL Firm and Lewis used misleading advertising within the meaning of
52

 Florida law to induce Plaintiff to use Defendant’s services.
204. The misrepresentations made by PL Firm and Lewis regarded one or more
material facts.
205. Defendants PL Firm and Lewis knew or should have known of the falsity
of their statements.
206. Defendants PL Firm and Lewis intended that Plaintiff would rely on and
act on the false statements.
207. Plaintiff suffered injury in justifiable reliance on the representation(s) by
Defendants PL Firm and Lewis.
WHEREFORE, Plaintiff demands judgment against Defendants PL Firm and
Lewis for damages, pre and post judgment interest, attorney’s fees and costs, and any
other relief this court deems just and proper.

DEMAND FOR JURY TRIAL
208. Plaintiff demands a trial by jury of all triable issues.

53

 Respectfully submitted,
Attorneys for Plaintiff
By: /s/Webb Millsaps
WEBB MILLSAPS
Florida Bar No.: 32414
Webb@WebbMillsapsLaw.com
WEBB MILLSAPS LAW, PL
160 W. Camino Real, #190
Boca Raton, FL 33432
Telephone: 561-900-7238
Facsimile: 866-741-0009
DONNA GREENSPAN SOLOMON
Florida Bar No.: 059110
Donna@SolomonAppeals.com
SOLOMON APPEALS, MEDIATION &
ARBITRATION

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 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served via
email to Leon E. Sharpe, Esq., (counsel for Defendant Glenn Ricardo Miller, Esq.),
sharpe_associates@msn.com, Leon E. Sharpe, P.A., 4770 Biscayne Blvd., Suite #770,
Miami, FL 33137; Bruce S. Rosenwater, Esq., (counsel for Defendants Princella Lewis
and Prestigious Lifecare For Seniors LLC f/k/a PL Firm, LLC), bsr@rosenwater.com,
Bruce S. Rosenwater & Associates, P.A., 1601 Forum Place, Centurion Tower, Suite
610, West Palm Beach, FL 33401, on October 31, 2014.
Respectfully submitted,
By: /s/Webb Millsaps
WEBB MILLSAPS

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