Case 0:13-cv-61020-JIC Document 19 Entered on FLSD Docket 05/08/2013 Page 1 of 13

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 13-61020-CIV-COHN-SELTZER IGNACIO DAMIAN FIGUEROA, Plaintiff, vs. LYNN SZYMONIAK, ESQUIRE, individually and as shareholder/member/owner of The Szymoniak Firm, P.A.; THE SZYMONIAK FIRM, P.A., a Florida professional association; HAL J. KLEINMAN, ESQUIRE, individually, JANET, JENNER & SUGGS, LLC, Defendants. _____________________________________________/ DEFENDANTS, LYNN SZYMONIAK, ESQUIRE AND THE SZYMONIAK FIRM, P.A.S, ANSWER AND AFFIRMATIVE DEFENSES Defendants, LYNN SZYMONIAK, ESQUIRE, and THE SZYMONIAK FIRM, P.A., by and through their undersigned attorneys, hereby file their Answer and Affirmative Defenses to Plaintiffs Complaint and Demand for Jury Trial and state: ANSWER 1. 2. 3. Admitted. Denied. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, was an attorney

licensed to practice law in the State of Florida. All other allegations are denied as alleged. 4. Denied.

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5.

It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, was the sole

owner of Defendant, THE SYZMONIAK FIRM, P.A. All other allegations are denied as alleged. 6. Defendants, LYNN SZYMONIAK, ESQUIRE and THE SZYMONIAK FIRM,

P.A., are without knowledge and therefore deny. 7. Defendants, LYNN SZYMONIAK, ESQUIRE and THE SZYMONIAK FIRM,

P.A., are without knowledge and therefore deny. 8. Defendants, LYNN SZYMONIAK, ESQUIRE and THE SZYMONIAK FIRM,

P.A., are without knowledge and therefore deny. 9. 10. 11. Denied. Denied. Defendants, LYNN SZYMONIAK, ESQUIRE and THE SZYMONIAK FIRM,

P.A., are without knowledge and therefore deny. 12. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, had contact with

Plaintiff at some time. All other allegations are denied. 13. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, met Plaintiff in

West Palm Beach, Florida. All other allegations are denied. 14. 15. 16. 17. 18. Denied. Denied. Denied. Denied. Denied.

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19.

It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 20. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 21. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 22. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 23. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 24. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 25. 26. 27. 28. 29. 30. Denied. Denied. Denied. Denied. Denied. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 31. It is admitted that defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 32. Denied.

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33.

It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff met

in Boca Raton regarding Plaintiffs involvement in a foreclosure action. All other allegations are denied. 34. Defendants, LYNN SZYMONIAK, ESQUIRE and THE SZYMONIAK FIRM,

P.A., are without knowledge and therefore deny. 35. Defendants, LYNN SZYMONIAK, ESQUIRE and THE SZYMONIAK FIRM,

P.A., are without knowledge and therefore deny. 36. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 37. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 38. It is admitted that defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 39. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 40. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 41. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 42. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 43. Denied.

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44.

It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 45. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 46. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 47. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 48. 49. Denied. It is admitted that litigation was commenced in Federal District Court. All other

allegations are denied. 50. It is admitted that litigation was commenced in Federal District Court. All other

allegations are denied. 51. It is admitted that Defendant, LYNN SZYMONIAK, ESQUIRE, and Plaintiff

communicated at times through email. All other allegations are denied. 52. Defendants, LYNN SZYMONIAK, ESQUIRE and THE SZYMONIAK FIRM,

P.A., are without knowledge and therefore deny. 53. 54. 55. Denied. Denied. Denied. COUNT I 56. 57. Denied and/or admitted as set forth above. Denied.

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58. 59. 60.

Denied. Denied. Denied. COUNT II

61. 62. 63. 64.

Denied and/or admitted as set forth above. Denied. Denied. Denied. COUNT III

65. 66. 67. 68. 69. 70.

Denied and/or admitted as set forth above. Denied. Denied. Denied. Denied. Denied COUNT IV

71. 72. 73. 74. 75. 76.

Denied and/or admitted as set forth above. Denied. Denied. Denied. Denied Denied.

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COUNT V 77. 78. 79. 80. 81. Denied and/or admitted as set forth above. Denied. Denied. Denied. Denied. COUNT VI 82. 83. 84. 85. Denied and/or admitted as set forth above. Denied. Denied. Denied. AFFIRMATIVE DEFENSES Defendants set forth the following affirmative and other defenses. Defendants do not hereby intend to assume the burden of pleading or proof with respect to those matters as to which, pursuant to law, Plaintiff bears the burden. FIRST AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested against Defendants for the reason that Plaintiff has failed to state a cause of action for legal malpractice, breach of fiduciary duty, fraud or unjust enrichment. SECOND AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that Plaintiff has failed to suffer any redressable harm.

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THIRD AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that Plaintiffs claims are barred by the applicable statute of limitations under Florida law. FOURTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested under the doctrine of waiver. FIFTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested under the doctrine of ratification. SIXTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested under the doctrine of unclean hands. SEVENTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that an attorney/client relationship did not exist between Plaintiff and Defendants, LYNN SZYMONIAK, ESQUIRE, and THE SZYMONIAK FIRM, P.A., with respect to the representation of Plaintiff in any Qui Tam action. EIGHTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that Plaintiff voluntarily terminated any attorney/client relationship which existed between Plaintiff and Defendants, LYNN SZYMONIAK, ESQUIRE, and THE SZYMONIAK FIRM, P.A. NINTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that Defendants, LYNN SZYMONIAK, ESQUIRE, and THE SZYMONIAK FIRM, P.A., did not breach any duty owed to Plaintiff under the circumstances.

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TENTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that any damages suffered by Plaintiff were not proximately caused by the actions of Defendants, LYNN SZYMONIAK, ESQUIRE, and THE SZYMONIAK FIRM, P.A. ELEVENTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested because Plaintiff, himself, is guilty of negligence, and this negligence was the legal cause of any damages suffered by Plaintiff and Plaintiff is thereby entitled to only such damages, if any, as were legally caused by Defendants, LYNN SZYMONIAK, ESQUIRE, and THE SZYMONIAK FIRM, P.A. TWELFTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that any damages or injuries sustained by Plaintiff were caused in whole or in part by the negligence of third parties for whom Defendants, LYNN SZYMONIAK, ESQUIRE, and THE SZYMONIAK FIRM, P.A., are not responsible. THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that Plaintiff has failed to mitigate his damages and therefore, any such damages not reasonably mitigated, should be barred or reduced accordingly. FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that Defendants, LYNN SZYMONIAK, ESQUIRE, and THE SZYMONIAK FIRM, P.A., did not fail to perform any duty which was the legal cause of any damages suffered by Plaintiff.

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FIFTEENTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that the incident complained of was not foreseeable and, as such, preventable by Defendants, LYNN SZYMONIAK, ESQUIRE, and THE SZYMONIAK FIRM, P.A. As such, Plaintiff cannot recover damages from Defendants, LYNN SZYMONIAK, ESQUIRE, and THE SZYMONIAK FIRM, P.A. SIXTEENTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that the sole legal cause of the alleged damages was the negligence of Plaintiff thus, barring Plaintiff from any recovery against Defendants, LYNN SZYMONIAK, ESQUIRE, and THE SZYMONIAK FIRM, P.A. SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that the sole legal cause of the alleged damages suffered by Plaintiff was the negligence of Plaintiff in failing to commence and prosecute his Qui Tam actions. EIGHTEENTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that Plaintiffs damages were caused in whole or in part by the unforeseen and undisclosed conduct of third parties over which Defendants, LYNN SZYMONIAK, ESQUIRE, and THE SZYMONIAK FIRM, P.A., had no control or right to control. NINETEENTH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that any eventual verdict obtained by Plaintiff must be reduced by payments previously received or hereinafter received by others for settlement of the causes of action pursuant Sec. 768.041, F.S.

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TWENTIETH AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested under the doctrine of estoppel. TWENTY-FIRST AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that any eventual verdict that is obtained and subsequent judgment entered so as to make applicable Sec.768.76, F.S., that Defendants, LYNN SZYMONIAK, ESQUIRE, and THE SZYMONIAK FIRM, P.A., are entitled to a set off for all payments made by any and all collateral sources. TWENTY-SECOND AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that such relief could not be obtained by the Plaintiff because his relief would be barred by the public disclosure bar in the False Claims Act, 31 U.S.C. 3730(e)(4)(A). TWENTY-THIRD AFFIRMATIVE DEFENSE Plaintiff is not entitled to the relief requested for the reason that such relief could not be obtained by the Plaintiff because his relief would be barred by the original source bar in the False Claims Act, 31 U.S.C. 3730(e)(4)(B). WHEREFORE, Defendants, LYNN SZYMONIAK, ESQUIRE, and THE SZYMONIAK FIRM, P.A., hereby file their Answer and Affirmative Defenses to Plaintiffs Complaint, request that the Court enter Judgment in favor of Defendants, LYNN SZYMONIAK, ESQUIRE, and THE SZYMONIAK FIRM, P.A., against Plaintiff on his claims and for such other and further relief as this Court deems just and proper. Respectfully submitted, /s/ Mark A. Cullen _______________________________ Mark A. Cullen, Esq. Florida Bar No. 325082

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Tamara H. Sager, Esq. Florida Bar No. 93008 The Cullen Law Firm, P.A. Attorneys for Defendants Szymoniak 2090 Palm Beach Lakes Boulevard, Suite 500 West Palm Beach, Florida 33409 Telephone: 561.640.9191 Facsimile: 561.214.4021 E-mail: mailbox@cullenlawfirm.net and G. Michael Keenan Florida Bar No. 334839 G. Michael Keenan, P.A. Attorneys for Defendants Szymoniak 1700 Old Okeechobee Road Suite 103 West Palm Beach, FL 33409 Telephone: 561.684.9601 Facsimile: 561.684.9602 Email: gmk@gmichaelkeenanlaw.com

CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system on this 8th day of May, 2013 which will send a notice of electronic filing to: Donald W. St. Denis, Esq. Eric M. Bradstreet, Esq. Attorneys for Plaintiff St. Denis & Davey, P.A. 1300 Riverplace Boulevard, Suite 401 Jacksonville, FL 32207 Telephone: (904) 396-1996 Facsimile: (904) 396-1991 E-mail: don@sdtriallaw.com Email: eric@sdtriallaw.com Marjorie Salem Hensel, Esq. Attorney for Defendants Hal J. Kleinman, Esq. and Janet, Jenner & Suggs, LLC Hinshaw & Culbertson, LLP 100 S. Ashley Drive, Ste. 500

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Tampa, Florida 33602 Telephone: (813) 276-1662 Facsimile: (813) 276-1956 E-mail: mhensel@hinshawlaw.com James H. Wyman, Esq. Attorney for Defendants Hal J. Kleinman, Esq. and Janet, Jenner & Suggs, LLC Hinshaw & Culbertson, LLP 2525 Ponce de Leon Blvd., 4th Floor Coral Gables, FL 33134 Telephone: (305) 358-7747 Facsimile: (305) 577-1063 Email: jwyman@hinshawlaw.com /s/ Mark A. Cullen ___________________________________ Mark A. Cullen, Esq. Florida Bar No. 325082 Tamara H. Sager, Esq. Florida Bar No. 93008

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