Preview
Filing # 82757323 E-Filed 01/02/2019 04:22:01 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,
IN AND FOR ORANGE COUNTY, FLORIDA
DR. JOHN A. FARNELLA, JR., an individual, and
FARNELLA GENICON HOLDINGS, LLC, a Florida CASE NO.: 2018-CA-001834-O
limited liability company,
DIVISION: 39
PLAINTIFFS,
V.
GENICON, LLC, a Florida limited liability
company, GENICON, INC., a Florida
corporation, GO LIQUIDITY, LLC, a Florida
limited liability company, GARY W.
HABERLAND, individually and in his capacity
as an officer of Genicon, LLC and as an officer
of Genicon, Inc., and THOMAS CALCATERRA,
individually and in his capacity as an officer of
Genicon, LLC and Genicon, Inc., DR.
GREGORY A. ZITTEL, M.D., an individual, DR.
COLLEEN ZITTEL, M.D., an individual, THE
THOMAS CALCATERRA FAMILY TRUST, TOJO
FINANCIAL, LLC, a Florida limited liability
company, OLGA HABERLAND, an individual,
LAURA VICTORIA ACOSTA LOPEZ a/k/a LAURA
STRELITZKI, an individual, and ROLAND
STRELITZKI, an individual,
DEFENDANTS.
DR. GREGORY A. ZITTEL, M.D,
COUNTERCLAIM PLAINTIFF,
V.
DR. JOHN A. FARNELLA, JR. and EQUITY TRUST
COMPANY d/b/a STERLING TRUST COMPANY,
CUSTODIAN FBO DR. JOHN A. FARNELLA, JR.,
ROLLOVER IRA,
COUNTERCLAIM DEFENDANTS.
DEFENDANTS DR. GREGORY A. ZITTEL, M.D., DR. COLLEEN ZITTEL, M.D.,
OLGA HABERLAND, LAURA VICTORIA ACOSTA LOPEZ A/K/A LAURA
STRELITZKI, AND ROLAND STRELITZKI’S ANSWER AND AFFIRMATIVE
DEFENSES TO COUNTS 1, 9, 17, 19, 21, 23, 25, AND 27 OF SECOND AMENDED
COMPLAINT AND DR. GREGORY A. ZITTEL’S COUNTERCLAIM AGAINST
DR. JOHN A. FARNELLA, JR. AND EQUITY TRUST COMPANY D/B/A STERLING
TRUST COMPANY, CUSTODIAN FBO DR. JOHN A. FARNELLA, JR.,
ROLLOVER IRA
Defendants Dr. Gregory A. Zittel, M.D. (“Dr. Gregory Zittel”), Dr. Colleen Zittel, M.D.
(“Dr. Colleen Zittel”), Olga Haberland, Laura Victoria Acosta Lopez a/k/a Laura Strelitzki
(“Laura Strelitzki”), and Roland Strelitzki answer and assert affirmative defenses to Counts 1, 9,
17, 19, 21, 23, 25, and 27 of Plaintiffs’ Second Amended Complaint. In addition,
Defendant/Counterclaim Plaintiff Dr. Gregory Zittel sues Plaintiff/Counterclaim Defendant John
A. Farnella, Jr. (“Farnella”) and Counterclaim Defendant Equity Trust Company d/b/a Sterling
Trust Company, Custodian fbo Dr. John A. Farnella, Jr., Rollover IRA (“Farnella IRA”).
ANSWER TO COUNTS 1, 9, 17, 19, 21, 23, 25, AND 27
Defendants Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, and
Roland Strelitzki respond to the individually numbered paragraphs of the Second Amended
Complaint as follows:
1. Denied that Genicon, LLC and Genico, Inc. are predecessors-in-interest of
Genicon Inc. in the sense used by Plaintiffs, but the remaining allegations are admitted.
2. Admitted that Genicon Inc. at various times had production issues with foreign
vendors, in-house production issues, and lack of sufficient operating capital or debt, but the
remaining allegations are denied.
3. Denied.
4. Denied.
5. Denied.
2
6. Denied.
7. Denied.
8. Denied.
9. Denied.
10. Admitted that Plaintiffs purport to seek the relief referenced in this paragraph, but
denied that they are entitled to any such relief.
11. Admitted.
12. Without sufficient information to admit or deny and, therefore, denied.
13. Admitted.
14. Admitted.
15. Admitted.
16. Admitted.
17. Admitted.
18. Denied that Thomas Calcaterra (“Calcaterra”) resides in Orange County, Florida.
Admitted that Calcaterra is currently the Chief Financial Officer of Genicon, Inc. Otherwise,
without sufficient information to admit or deny and, therefore, denied.
19. Without sufficient information to admit or deny and, therefore, denied.
20. Admitted that ToJo Financial, LLC (“ToJo”) is a Florida limited liability
company with its principal place of business in Hillsborough County, Florida and that Calcaterra
is President of ToJo. Otherwise, without sufficient information to admit or deny and, therefore,
denied.
21. Admitted.
22. Admitted.
3
23. Admitted.
24. Admitted.
25. Admitted that Plaintiffs purport to seek the relief referenced in this paragraph, but
denied that they state claims for or are entitled to such relief.
26. Admitted for jurisdictional purposes only with respect to Dr. Gregory Zittel,
Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, and Roland Strelitzki. Otherwise, without
sufficient information to admit or deny and, therefore, denied.
27. Admitted for venue purposes only with respect to Dr. Gregory Zittel, Dr. Colleen
Zittel, Olga Haberland, Laura Strelitzki, and Roland Strelitzki. Otherwise, without sufficient
information to admit or deny and, therefore, denied.
28. – 50. The allegations in paragraphs 28-50 are not incorporated into any of the
counts to which this Answer is directed. Accordingly, no response is required to the allegations
in paragraphs 28-50. If a response is deemed to be required, Dr. Gregory Zittel, Dr. Colleen
Zittel, Olga Haberland, Laura Strelitzki, and Roland Strelitzki incorporate by reference and
assert as if fully set forth herein Genicon, Inc.’s responses to the applicable paragraphs.
51. The Operating Agreement speaks for itself, and any allegations contrary thereto
are denied.
52. The Operating Agreement speaks for itself, and any allegations contrary thereto
are denied.
53. The Operating Agreement speaks for itself, and any allegations contrary thereto
are denied.
54. The Operating Agreement speaks for itself, and any allegations contrary thereto
are denied.
4
55. The Operating Agreement speaks for itself, and any allegations contrary thereto
are denied.
56. The Action speaks for itself, and any allegations contrary thereto are denied.
57. The Second Amended Operating Agreement speaks for itself, and any allegations
contrary thereto are denied.
58. The Second Amended Operating Agreement speaks for itself, and any allegations
contrary thereto are denied.
59. The Second Amended Operating Agreement speaks for itself, and any allegations
contrary thereto are denied.
60. Admitted that Farnella executed a Third Amended Operating Agreement, but the
remaining allegations are denied. Affirmatively alleged that Farnella executed the version of the
Third Amended Operating Agreement attached hereto as Exhibit 1, and not the version of the
Third Amended Operating Agreement attached to the Second Amended Complaint as Exhibit F.
61. Admitted only that the Third Amended Operating Agreement attached hereto as
Exhibit 1 was executed by the signatories indicated thereon. Denied that Gary Haberland or
Dr. Gregory Zittel executed the Third Amended Operating Agreement attached to the Second
Amended Complaint.
62. Denied.
63. Without sufficient information to admit or deny and, therefore, denied.
64. Without sufficient information to admit or deny and, therefore, denied.
65. The TJBGC Assignment speaks for itself, and any allegations contrary thereto are
denied. Admitted that Theodore Bogdan resigned on or about May 31, 2013.
66. Denied.
5
67. The Voting Proxy Agreement speaks for itself, and any allegations contrary
thereto are denied.
68. The Voting Proxy Agreement speaks for itself, and any allegations contrary
thereto are denied.
69. Denied.
70. Denied.
71. – 81. The allegations in paragraphs 71-81 are not incorporated into any of the
counts to which this Answer is directed. Accordingly, no response is required to the allegations
in paragraphs 71-81. If a response is deemed to be required, Dr. Gregory Zittel, Dr. Colleen
Zittel, Olga Haberland, Laura Strelitzki, and Roland Strelitzki incorporate by reference and
assert as if fully set forth herein Genicon, Inc.’s responses to the applicable paragraphs.
82. Denied.
83. Without sufficient information to admit or deny and, therefore, denied.
84. Denied.
85. Denied.
86. Denied.
87. Denied.
88. Denied.
89. Denied.
90. Denied that Genicon Inc. concealed any transfers or that there were any
fraudulent transfers.
91. Denied.
92. Denied.
6
93. – 113. The allegations in paragraphs 93-113 are not incorporated into any of the
counts to which this Answer is directed. Accordingly, no response is required to the allegations
in paragraphs 93-113. If a response is deemed to be required, Dr. Gregory Zittel, Dr. Colleen
Zittel, Olga Haberland, Laura Strelitzki, and Roland Strelitzki incorporate by reference and
assert as if fully set forth herein Genicon, Inc.’s responses to the applicable paragraphs.
COUNT 1
(Declaratory Relief) (GENICON LLC, DR. GREGORY ZITTEL, GARY
HABERLAND, AND GO LIQUIDITY)
114. Dr. Gregory Zittel incorporates by reference his responses to Paragraphs 1-26 and
51-70 of the Second Amended Complaint. Because Count 1 does not seek relief against
Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required
by these defendants.
115. Admitted that Count 1 purports to be an action for declaratory relief, but denied
that Farnella Genicon Holdings, LLC (“Farnella Holdings”) is entitled to the requested
declaration.
116. Without sufficient information to admit or deny and, therefore, denied.
117. Admitted.
118. Admitted that Count 1 purports to be an action for declaratory relief, but denied
that Farnella Holdings is entitled to the requested declaration.
119. Denied.
120. Without sufficient information to admit or deny and, therefore, denied.
121. Admitted that Count 1 purports to be an action for declaratory relief, but denied
that Farnella Holdings is entitled to the requested declaration.
122. Admitted that Farnella Holdings purports to seek the requested declaration, but
denied that Farnella Holdings is entitled to the requested declaration.
7
COUNT 2
(Declaratory Judgment) (GENICON INC.)
123. – 135. Because Count 2 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
COUNT 3
(Default - Genico Promissory Notes) (GENICON INC.)
136. – 142. Because Count 3 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
COUNT 4
(Default – Genicon Secured Promissory Note) ( GENICON INC.)
143. – 148. Because Count 4 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
COUNT 5
(Default – Bridge Loan Promissory Note) (GENICON INC.)
149. – 153. Because Count 5 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
COUNT 6
(Default – Haberland Personal Loan) (HABERLAND)
154. – 157. Because Count 6 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
COUNT 7
(Fraud in the Inducement – HABERLAND and Default on Loans –
GENICON INC.)
158. – 167. Because Count 7 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
8
COUNT 8
(Fraud in the Inducement – HABERLAND and Default on Loans –
GENICON INC.)
168. – 176. Because Count 8 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
COUNT 9
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(a))
(GARY HABERLAND AND OLGA HABERLAND)
177. Olga Haberland incorporates by reference her responses to Paragraphs 1-27 and
82-92 of the Second Amended Complaint. Because Count 9 does not seek relief against
Dr. Gregory Zittel, Dr. Colleen Zittel, Laura Strelitzki, or Roland Strelitzki, no response is
required by these defendants.
178. Denied.
179. Admitted that Genicon, Inc. made a document production to Plaintiffs in this
matter on September 21, 2018 that included, among other things, certain bank records.
180. Denied.
181. The total amount referenced on Composite Exhibit N speaks for itself. Denied
that any of the referenced amounts constitute fraudulent transfers.
182. Without sufficient information to admit or deny and, therefore, denied.
183. Denied.
184. Admitted that Gary Haberland and Olga Haberland are insiders of Genicon, Inc.,
as that term is defined in Section 726.102, Florida Statutes.
185. Denied.
186. Denied.
187. Denied.
9
COUNT 10
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(b))
(GARY HABERLAND AND OLGA HABERLAND)
188. – 195. Olga Haberland has moved to dismiss Count 10, and Count 10 does not
seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Laura Strelitzki, or Roland Strelitzki.
Thus, no response is required.
COUNT 11
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(1))
(GARY HABERLAND AND OLGA HABERLAND)
196. – 203. Olga Haberland has moved to dismiss Count 11, and Count 11 does not
seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Laura Strelitzki, or Roland Strelitzki.
Thus, no response is required.
COUNT 12
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(2))
(GARY HABERLAND AND OLGA HABERLAND)
204. – 214. Olga Haberland has moved to dismiss Count 12, and Count 12 does not
seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Laura Strelitzki, or Roland Strelitzki.
Thus, no response is required.
COUNT 13
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(a))
(THOMAS CALCATERRA AND TOJO FINANCIAL)
215. – 226. Because Count 13 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
COUNT 14
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(b))
(THOMAS CALCATERRA AND TOJO FINANCIAL)
227. – 234. Because Count 14 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
10
COUNT 15
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(1))
(THOMAS CALCATERRA AND TOJO FINANCIAL)
235. – 242. Because Count 15 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
COUNT 16
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(2))
(THOMAS CALCATERRA AND TOJO FINANCIAL)
243. – 253. Because Count 16 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
COUNT 17
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(a))
(GREG ZITTEL AND COLLEEN ZITTEL)
254. Dr. Gregory Zittel and Dr. Colleen Zittel incorporate by reference their responses
to Paragraphs 1-27 and 82-92 of the Second Amended Complaint. Because Count 17 does not
seek relief against Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required
by these defendants.
255. Denied.
256. Admitted that Genicon, Inc. made a document production to Plaintiffs in this
matter on September 21, 2018 that included, among other things, certain bank records.
257. Denied.
258. The total amount referenced on Composite Exhibit N speaks for itself. Denied
that any of the referenced amounts constitute fraudulent transfers.
259 Denied.
260. Without sufficient information to admit or deny and, therefore, denied.
261. Denied.
262. Admitted that Dr. Gregory Zittel is an insider of Genicon, Inc., as that term is
11
defined in Section 726.102, Florida Statutes.
263. Denied.
264. Denied.
265. Denied.
COUNT 18
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(b))
(GREG ZITTEL AND COLLEEN ZITTEL)
266. – 273. Dr. Gregory Zittel and Dr. Colleen Zittel have moved to dismiss Count 18,
and Count 18 does not seek relief against Olga Haberland, Laura Strelitzki, or Roland Strelitzki.
Thus, no response is required.
COUNT 19
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(1))
(GREG ZITTEL AND COLLEEN ZITTEL)
274. Dr. Gregory Zittel and Dr. Colleen Zittel incorporate by reference their responses
to Paragraphs 1-27 and 82-92 of the Second Amended Complaint. Because Count 19 does not
seek relief against Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required
by these defendants.
275. Denied.
276. Admitted that Genicon, Inc. made a document production to Plaintiffs in this
matter on September 21, 2018 that included, among other things, certain bank records.
277. Denied.
278. The total amount referenced on Composite Exhibit N speaks for itself. Denied
that any of the referenced amounts constitute fraudulent transfers.
279. Without sufficient information to admit or deny and, therefore, denied.
280. Denied.
281. Denied.
12
COUNT 20
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(2))
(GREG ZITTEL AND COLLEEN ZITTEL)
282. – 292. Dr. Gregory Zittel and Dr. Colleen Zittel have moved to dismiss Count 20,
and Count 20 does not seek relief against Olga Haberland, Laura Strelitzki, or Roland Strelitzki.
Thus, no response is required.
COUNT 21
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(a))
(ROLAND STRELITZKI AND LAURA STRELITZKI)
293. Laura Strelitzki and Roland Strelitzki incorporate by reference their responses to
Paragraphs 1-27 and 82-92 of the Second Amended Complaint. Because Count 21 does not seek
relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga Haberland, no response is required
by these defendants.
294. Denied.
295. Admitted that Genicon, Inc. made a document production to Plaintiffs in this
matter on September 21, 2018 that included, among other things, certain bank records.
296. Denied.
297. The total amount referenced on Composite Exhibit N speaks for itself. Denied
that any of the referenced amounts constitute fraudulent transfers.
298 Denied.
299. Without sufficient information to admit or deny and, therefore, denied.
300. Denied.
301. Denied.
302. Denied.
303. Denied.
304. Denied.
13
COUNT 22
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(b))
(ROLAND STRELITZKI AND LAURA STRELITZKI)
305. – 312. Laura Strelitzki and Roland Strelitzki have moved to dismiss Count 22,
and Count 22 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga
Haberland. Thus, no response is required.
COUNT 23
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(1))
(ROLAND STRELITZKI AND LAURA STRELITZKI)
313. Laura Strelitzki and Roland Strelitzki incorporate by reference their responses to
Paragraphs 1-27 and 82-92 of the Second Amended Complaint. Because Count 23 does not seek
relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga Haberland, no response is required
by these defendants.
314. Denied.
315. Admitted that Genicon, Inc. made a document production to Plaintiffs in this
matter on September 21, 2018 that included, among other things, certain bank records.
316. Denied.
317. The total amount referenced on Composite Exhibit N speaks for itself. Denied
that any of the referenced amounts constitute fraudulent transfers.
318. Without sufficient information to admit or deny and, therefore, denied.
319. Denied.
320. Denied.
COUNT 24
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(2))
(ROLAND STRELITZKI AND LAURA STRELITZKI)
321. – 331. Laura Strelitzki and Roland Strelitzki have moved to dismiss Count 24,
14
and Count 24 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga
Haberland. Thus, no response is required.
COUNT 25
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(a))
(ROLAND STRELITZKI AND LAURA STRELITZKI)
332. Laura Strelitzki and Roland Strelitzki incorporate by reference their responses to
Paragraphs 1-27 and 82-92 of the Second Amended Complaint. Because Count 25 does not seek
relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga Haberland, no response is required
by these defendants.
333. Denied.
334. Admitted that Genicon, Inc. made a document production to Plaintiffs in this
matter on September 21, 2018 that included, among other things, certain bank records.
335. Denied.
336. The total amount referenced on Composite Exhibit N speaks for itself. Denied
that any of the referenced amounts constitute fraudulent transfers.
337 Denied.
338. Without sufficient information to admit or deny and, therefore, denied.
339. Denied.
340. Admitted that Laura Strelitzki is an insider of Genicon, Inc., as that term is
defined in Section 726.102, Florida Statutes.
341. Denied.
342. Denied.
343. Denied.
15
COUNT 26
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(b))
(ROLAND STRELITZKI AND LAURA STRELITZKI)
344. – 351. Laura Strelitzki and Roland Strelitzki have moved to dismiss Count 26,
and Count 26 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga
Haberland. Thus, no response is required.
COUNT 27
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(1))
(ROLAND STRELITZKI AND LAURA STRELITZKI)
352. Laura Strelitzki and Roland Strelitzki incorporate by reference their responses to
Paragraphs 1-27 and 82-92 of the Second Amended Complaint. Because Count 27 does not seek
relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga Haberland, no response is required
by these defendants.
353. Denied.
354. Admitted that Genicon, Inc. made a document production to Plaintiffs in this
matter on September 21, 2018 that included, among other things, certain bank records.
355. Denied.
356. The total amount referenced on Composite Exhibit N speaks for itself. Denied
that any of the referenced amounts constitute fraudulent transfers.
357. Without sufficient information to admit or deny and, therefore, denied.
358. Denied.
359. Denied.
COUNT 28
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(2))
(ROLAND STRELITZKI AND LAURA STRELITZKI)
360. – 370. Laura Strelitzki and Roland Strelitzki have moved to dismiss Count 28,
and Count 28 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga
16
Haberland. Thus, no response is required.
COUNT 29
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(a))
(THE CALCATERRA FAMILY TRUST)
371. – 380. Because Count 29 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
COUNT 30
(FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(b))
(THE THOMAS CALCATERRA FAMILY TRUST)
381. – 388. Because Count 30 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
COUNT 31
(FRAUDULENT TRANSFER FLA. STAT. SECTION 725.106(1))
(THE THOMAS CALCATERRA FAMILY TRUST)
389. – 396. Because Count 31 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
COUNT 32
(Indemnification - GENICON LLC)
397. – 407. Because Count 32 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
COUNT 33
(Indemnification - GENICON INC.)
408. – 418. Because Count 33 does not seek relief against Dr. Gregory Zittel, Dr.
Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required.
GENERAL DENIAL
Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, and Roland
Strelitzki deny each and every allegation not expressly addressed above. Without limitation, if
any allegations that were not answered above are interpreted to be directed to Dr. Gregory Zittel,
17
Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, and Roland Strelitzki or otherwise require a
response, such allegations are denied
AFFIRMATIVE DEFENSES TO COUNTS 1, 9, 17, 19, 21, 23, 25, AND 27
First Affirmative Defense
(Statute of Limitations)
1. Count 1 is barred by the applicable statute of limitations to the extent that it seeks
to declare the invalidity of a Third Amended Operating Agreement entered into in 2013.
2. Counts 9, 17, 19, 21, 23, 25, and 27 are barred to the extent that they seek to avoid
alleged transfers that were made or, if a delayed discovery rule is applicable, discovered or
reasonably discoverable outside the operative limitations period.
Second Affirmative Defense
(Illegality)
3. Farnella Holdings’ claim in Count 1 based on the Voting Proxy Agreement or any
other alleged formal or informal agreements for control is barred by illegality. If the Voting
Proxy Agreement or another alleged agreement is construed to provide the control rights claimed
by Farnella and Farnella Holdings (and disputed by Defendants), the Voting Proxy Agreement or
such other agreement would constitute an illegal attempt to circumvent Internal Revenue Service
obligations for Farnella and/or Farnella Holdings’ use of funds from an IRA account while
attempting to maintain a controlling interest in Genicon, LLC.
4. To the extent that any of Farnella’s fraudulent transfer claims in Counts 9, 17, 19,
21, 23, 25, and 27 are based on his claim as a creditor by virtue of loans that are contrary to law,
such claims are barred by illegality.
Third Affirmative Defense
(In Pari Delicto)
5. Farnella made loans from a qualified retirement account and did not report those
18
loans as distributions. If Farnella, directly or indirectly, had controlled Genicon, Inc., or
Genicon, LLC, he would be required to report the loans as distributions and pay applicable taxes
and penalties. Farnella is attempting to assert a controlling interest while also failing to report to
the IRS the loans from his retirement account as distributions in order to avoid paying taxes.
Plaintiffs acted in pari delicto and are not entitled to relief in Count 1 or in Counts 9, 17, 19, 21,
23, 25, and 27 are based on Farnella’s claim as a creditor by virtue of loans that are contrary to
law.
Fourth Affirmative Defense
(Ratification/Waiver)
6. Plaintiffs have waived some or all of the claims asserted in Counts 1, 9, 17, 19,
21, 23, 25, and 27 and ratified the relevant transactions. Without limiting the foregoing, Farnella
served as a manager of Genicon, LLC and a director of Genicon, Inc. and was on the
compensation and audit committees of Genicon, Inc. Farnella signed operating agreements and
consents confirming his lack of control and approval of Genicon, LLC and Genicon, Inc.’s
capital and governance structure; approved the employment agreements and compensation
arrangements for alleged transferees; knew that alleged transferees were making short term loans
to the company; and had full access to Genicon, LLC and Genicon, Inc.’s financial information
and the details of related party transactions. With knowledge of or access to the details of the
relevant transactions, Plaintiffs did not object or take any action to challenge these transactions,
but instead ratified and acquiesced in the transactions and waived any resulting claim.
7. In the operating agreements of Genicon, LLC, Farnella also acknowledged that
“any action taken by the affirmative vote of a majority of managers shall create an irrebuttable
presumption that said action was made in good-faith to be in the best interest of the company and
using care an ordinary prudent person in a like position would exercise under similar
19
circumstances.” To the extent that the board of managers approved any transactions about which
Plaintiffs complain, Plaintiffs have waived any claim based on such transactions.
Fifth Affirmative Defense
(Waiver/Estoppel as to Control)
8. Despite previously claiming to have loaned or invested his own funds, Farnella
has in a judicial proceeding and in his capacity as a fiduciary acknowledged that part of the
equity and debt Plaintiffs allegedly hold in Genicon, LLC or owned by Genicon Inc. is owned by
the Farnella Family Limited Partnership (“FFLP”) or its limited partners, and a New York court
has issued an order requiring Farnella to distribute to the limited partners of FFLP 35.5% of the
equity or debt interests of Genicon, LLC or Genicon, Inc. held by Farnella Holdings. As such,
Plaintiffs have waived and are estopped from asserting their alleged control rights.
Sixth Affirmative Defense
(Standing)
9. It is unclear whether Plaintiffs have standing to pursue the claims asserted in this
action, including Counts 1, 9, 17, 19, 21, 23, 25, and 27 because FFLP, its limited partners, or
others may hold or have a claim to the debt and equity interests on which Plaintiffs base their
claims. As a result, Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, and
Roland Strelitzki demand strict proof of Plaintiffs’ standing to bring each of their causes of
action.
Seventh Affirmative Defense
(Unclean Hands)
10. Plaintiffs are not entitled to any equitable relief because they have unclean hands.
In addition to the facts set forth in the First through Fifth Affirmative Defenses above, which are
incorporated herein by reference, Plaintiffs have repeatedly made false statements about
Defendants, including the unfounded allegations of impropriety that are referenced in their
20
Complaint, Amended Complaint, and Second Amended Complaint and form the basis for
Genicon, Inc.’s Amended Counterclaim. By reciting these allegations both inside and outside
this proceeding, Plaintiffs have caused significant harm to Defendants and Genicon, Inc.’s
business, including directly causing the loss of at least one opportunity to sell the company.
11. By taking these actions, Plaintiffs have engaged in inequitable, dishonest, and
unfair conduct in regard to the subject matter of this action that has caused harm to Dr. Gregory
Zittel, Dr. Colleen Zittel, Olga Haberland,
Preview
Filing # 82757323 E-Filed 01/02/2019 04:22:01 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA DR. JOHN A. FARNELLA, JR., an individual, and FARNELLA GENICON HOLDINGS, LLC, a Florida CASE NO.: 2018-CA-001834-O limited liability company, DIVISION: 39 PLAINTIFFS, V. GENICON, LLC, a Florida limited liability company, GENICON, INC., a Florida corporation, GO LIQUIDITY, LLC, a Florida limited liability company, GARY W. HABERLAND, individually and in his capacity as an officer of Genicon, LLC and as an officer of Genicon, Inc., and THOMAS CALCATERRA, individually and in his capacity as an officer of Genicon, LLC and Genicon, Inc., DR. GREGORY A. ZITTEL, M.D., an individual, DR. COLLEEN ZITTEL, M.D., an individual, THE THOMAS CALCATERRA FAMILY TRUST, TOJO FINANCIAL, LLC, a Florida limited liability company, OLGA HABERLAND, an individual, LAURA VICTORIA ACOSTA LOPEZ a/k/a LAURA STRELITZKI, an individual, and ROLAND STRELITZKI, an individual, DEFENDANTS. DR. GREGORY A. ZITTEL, M.D, COUNTERCLAIM PLAINTIFF, V. DR. JOHN A. FARNELLA, JR. and EQUITY TRUST COMPANY d/b/a STERLING TRUST COMPANY, CUSTODIAN FBO DR. JOHN A. FARNELLA, JR., ROLLOVER IRA, COUNTERCLAIM DEFENDANTS. DEFENDANTS DR. GREGORY A. ZITTEL, M.D., DR. COLLEEN ZITTEL, M.D., OLGA HABERLAND, LAURA VICTORIA ACOSTA LOPEZ A/K/A LAURA STRELITZKI, AND ROLAND STRELITZKI’S ANSWER AND AFFIRMATIVE DEFENSES TO COUNTS 1, 9, 17, 19, 21, 23, 25, AND 27 OF SECOND AMENDED COMPLAINT AND DR. GREGORY A. ZITTEL’S COUNTERCLAIM AGAINST DR. JOHN A. FARNELLA, JR. AND EQUITY TRUST COMPANY D/B/A STERLING TRUST COMPANY, CUSTODIAN FBO DR. JOHN A. FARNELLA, JR., ROLLOVER IRA Defendants Dr. Gregory A. Zittel, M.D. (“Dr. Gregory Zittel”), Dr. Colleen Zittel, M.D. (“Dr. Colleen Zittel”), Olga Haberland, Laura Victoria Acosta Lopez a/k/a Laura Strelitzki (“Laura Strelitzki”), and Roland Strelitzki answer and assert affirmative defenses to Counts 1, 9, 17, 19, 21, 23, 25, and 27 of Plaintiffs’ Second Amended Complaint. In addition, Defendant/Counterclaim Plaintiff Dr. Gregory Zittel sues Plaintiff/Counterclaim Defendant John A. Farnella, Jr. (“Farnella”) and Counterclaim Defendant Equity Trust Company d/b/a Sterling Trust Company, Custodian fbo Dr. John A. Farnella, Jr., Rollover IRA (“Farnella IRA”). ANSWER TO COUNTS 1, 9, 17, 19, 21, 23, 25, AND 27 Defendants Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, and Roland Strelitzki respond to the individually numbered paragraphs of the Second Amended Complaint as follows: 1. Denied that Genicon, LLC and Genico, Inc. are predecessors-in-interest of Genicon Inc. in the sense used by Plaintiffs, but the remaining allegations are admitted. 2. Admitted that Genicon Inc. at various times had production issues with foreign vendors, in-house production issues, and lack of sufficient operating capital or debt, but the remaining allegations are denied. 3. Denied. 4. Denied. 5. Denied. 2 6. Denied. 7. Denied. 8. Denied. 9. Denied. 10. Admitted that Plaintiffs purport to seek the relief referenced in this paragraph, but denied that they are entitled to any such relief. 11. Admitted. 12. Without sufficient information to admit or deny and, therefore, denied. 13. Admitted. 14. Admitted. 15. Admitted. 16. Admitted. 17. Admitted. 18. Denied that Thomas Calcaterra (“Calcaterra”) resides in Orange County, Florida. Admitted that Calcaterra is currently the Chief Financial Officer of Genicon, Inc. Otherwise, without sufficient information to admit or deny and, therefore, denied. 19. Without sufficient information to admit or deny and, therefore, denied. 20. Admitted that ToJo Financial, LLC (“ToJo”) is a Florida limited liability company with its principal place of business in Hillsborough County, Florida and that Calcaterra is President of ToJo. Otherwise, without sufficient information to admit or deny and, therefore, denied. 21. Admitted. 22. Admitted. 3 23. Admitted. 24. Admitted. 25. Admitted that Plaintiffs purport to seek the relief referenced in this paragraph, but denied that they state claims for or are entitled to such relief. 26. Admitted for jurisdictional purposes only with respect to Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, and Roland Strelitzki. Otherwise, without sufficient information to admit or deny and, therefore, denied. 27. Admitted for venue purposes only with respect to Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, and Roland Strelitzki. Otherwise, without sufficient information to admit or deny and, therefore, denied. 28. – 50. The allegations in paragraphs 28-50 are not incorporated into any of the counts to which this Answer is directed. Accordingly, no response is required to the allegations in paragraphs 28-50. If a response is deemed to be required, Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, and Roland Strelitzki incorporate by reference and assert as if fully set forth herein Genicon, Inc.’s responses to the applicable paragraphs. 51. The Operating Agreement speaks for itself, and any allegations contrary thereto are denied. 52. The Operating Agreement speaks for itself, and any allegations contrary thereto are denied. 53. The Operating Agreement speaks for itself, and any allegations contrary thereto are denied. 54. The Operating Agreement speaks for itself, and any allegations contrary thereto are denied. 4 55. The Operating Agreement speaks for itself, and any allegations contrary thereto are denied. 56. The Action speaks for itself, and any allegations contrary thereto are denied. 57. The Second Amended Operating Agreement speaks for itself, and any allegations contrary thereto are denied. 58. The Second Amended Operating Agreement speaks for itself, and any allegations contrary thereto are denied. 59. The Second Amended Operating Agreement speaks for itself, and any allegations contrary thereto are denied. 60. Admitted that Farnella executed a Third Amended Operating Agreement, but the remaining allegations are denied. Affirmatively alleged that Farnella executed the version of the Third Amended Operating Agreement attached hereto as Exhibit 1, and not the version of the Third Amended Operating Agreement attached to the Second Amended Complaint as Exhibit F. 61. Admitted only that the Third Amended Operating Agreement attached hereto as Exhibit 1 was executed by the signatories indicated thereon. Denied that Gary Haberland or Dr. Gregory Zittel executed the Third Amended Operating Agreement attached to the Second Amended Complaint. 62. Denied. 63. Without sufficient information to admit or deny and, therefore, denied. 64. Without sufficient information to admit or deny and, therefore, denied. 65. The TJBGC Assignment speaks for itself, and any allegations contrary thereto are denied. Admitted that Theodore Bogdan resigned on or about May 31, 2013. 66. Denied. 5 67. The Voting Proxy Agreement speaks for itself, and any allegations contrary thereto are denied. 68. The Voting Proxy Agreement speaks for itself, and any allegations contrary thereto are denied. 69. Denied. 70. Denied. 71. – 81. The allegations in paragraphs 71-81 are not incorporated into any of the counts to which this Answer is directed. Accordingly, no response is required to the allegations in paragraphs 71-81. If a response is deemed to be required, Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, and Roland Strelitzki incorporate by reference and assert as if fully set forth herein Genicon, Inc.’s responses to the applicable paragraphs. 82. Denied. 83. Without sufficient information to admit or deny and, therefore, denied. 84. Denied. 85. Denied. 86. Denied. 87. Denied. 88. Denied. 89. Denied. 90. Denied that Genicon Inc. concealed any transfers or that there were any fraudulent transfers. 91. Denied. 92. Denied. 6 93. – 113. The allegations in paragraphs 93-113 are not incorporated into any of the counts to which this Answer is directed. Accordingly, no response is required to the allegations in paragraphs 93-113. If a response is deemed to be required, Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, and Roland Strelitzki incorporate by reference and assert as if fully set forth herein Genicon, Inc.’s responses to the applicable paragraphs. COUNT 1 (Declaratory Relief) (GENICON LLC, DR. GREGORY ZITTEL, GARY HABERLAND, AND GO LIQUIDITY) 114. Dr. Gregory Zittel incorporates by reference his responses to Paragraphs 1-26 and 51-70 of the Second Amended Complaint. Because Count 1 does not seek relief against Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required by these defendants. 115. Admitted that Count 1 purports to be an action for declaratory relief, but denied that Farnella Genicon Holdings, LLC (“Farnella Holdings”) is entitled to the requested declaration. 116. Without sufficient information to admit or deny and, therefore, denied. 117. Admitted. 118. Admitted that Count 1 purports to be an action for declaratory relief, but denied that Farnella Holdings is entitled to the requested declaration. 119. Denied. 120. Without sufficient information to admit or deny and, therefore, denied. 121. Admitted that Count 1 purports to be an action for declaratory relief, but denied that Farnella Holdings is entitled to the requested declaration. 122. Admitted that Farnella Holdings purports to seek the requested declaration, but denied that Farnella Holdings is entitled to the requested declaration. 7 COUNT 2 (Declaratory Judgment) (GENICON INC.) 123. – 135. Because Count 2 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. COUNT 3 (Default - Genico Promissory Notes) (GENICON INC.) 136. – 142. Because Count 3 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. COUNT 4 (Default – Genicon Secured Promissory Note) ( GENICON INC.) 143. – 148. Because Count 4 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. COUNT 5 (Default – Bridge Loan Promissory Note) (GENICON INC.) 149. – 153. Because Count 5 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. COUNT 6 (Default – Haberland Personal Loan) (HABERLAND) 154. – 157. Because Count 6 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. COUNT 7 (Fraud in the Inducement – HABERLAND and Default on Loans – GENICON INC.) 158. – 167. Because Count 7 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. 8 COUNT 8 (Fraud in the Inducement – HABERLAND and Default on Loans – GENICON INC.) 168. – 176. Because Count 8 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. COUNT 9 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(a)) (GARY HABERLAND AND OLGA HABERLAND) 177. Olga Haberland incorporates by reference her responses to Paragraphs 1-27 and 82-92 of the Second Amended Complaint. Because Count 9 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Laura Strelitzki, or Roland Strelitzki, no response is required by these defendants. 178. Denied. 179. Admitted that Genicon, Inc. made a document production to Plaintiffs in this matter on September 21, 2018 that included, among other things, certain bank records. 180. Denied. 181. The total amount referenced on Composite Exhibit N speaks for itself. Denied that any of the referenced amounts constitute fraudulent transfers. 182. Without sufficient information to admit or deny and, therefore, denied. 183. Denied. 184. Admitted that Gary Haberland and Olga Haberland are insiders of Genicon, Inc., as that term is defined in Section 726.102, Florida Statutes. 185. Denied. 186. Denied. 187. Denied. 9 COUNT 10 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(b)) (GARY HABERLAND AND OLGA HABERLAND) 188. – 195. Olga Haberland has moved to dismiss Count 10, and Count 10 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Laura Strelitzki, or Roland Strelitzki. Thus, no response is required. COUNT 11 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(1)) (GARY HABERLAND AND OLGA HABERLAND) 196. – 203. Olga Haberland has moved to dismiss Count 11, and Count 11 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Laura Strelitzki, or Roland Strelitzki. Thus, no response is required. COUNT 12 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(2)) (GARY HABERLAND AND OLGA HABERLAND) 204. – 214. Olga Haberland has moved to dismiss Count 12, and Count 12 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Laura Strelitzki, or Roland Strelitzki. Thus, no response is required. COUNT 13 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(a)) (THOMAS CALCATERRA AND TOJO FINANCIAL) 215. – 226. Because Count 13 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. COUNT 14 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(b)) (THOMAS CALCATERRA AND TOJO FINANCIAL) 227. – 234. Because Count 14 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. 10 COUNT 15 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(1)) (THOMAS CALCATERRA AND TOJO FINANCIAL) 235. – 242. Because Count 15 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. COUNT 16 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(2)) (THOMAS CALCATERRA AND TOJO FINANCIAL) 243. – 253. Because Count 16 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. COUNT 17 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(a)) (GREG ZITTEL AND COLLEEN ZITTEL) 254. Dr. Gregory Zittel and Dr. Colleen Zittel incorporate by reference their responses to Paragraphs 1-27 and 82-92 of the Second Amended Complaint. Because Count 17 does not seek relief against Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required by these defendants. 255. Denied. 256. Admitted that Genicon, Inc. made a document production to Plaintiffs in this matter on September 21, 2018 that included, among other things, certain bank records. 257. Denied. 258. The total amount referenced on Composite Exhibit N speaks for itself. Denied that any of the referenced amounts constitute fraudulent transfers. 259 Denied. 260. Without sufficient information to admit or deny and, therefore, denied. 261. Denied. 262. Admitted that Dr. Gregory Zittel is an insider of Genicon, Inc., as that term is 11 defined in Section 726.102, Florida Statutes. 263. Denied. 264. Denied. 265. Denied. COUNT 18 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(b)) (GREG ZITTEL AND COLLEEN ZITTEL) 266. – 273. Dr. Gregory Zittel and Dr. Colleen Zittel have moved to dismiss Count 18, and Count 18 does not seek relief against Olga Haberland, Laura Strelitzki, or Roland Strelitzki. Thus, no response is required. COUNT 19 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(1)) (GREG ZITTEL AND COLLEEN ZITTEL) 274. Dr. Gregory Zittel and Dr. Colleen Zittel incorporate by reference their responses to Paragraphs 1-27 and 82-92 of the Second Amended Complaint. Because Count 19 does not seek relief against Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required by these defendants. 275. Denied. 276. Admitted that Genicon, Inc. made a document production to Plaintiffs in this matter on September 21, 2018 that included, among other things, certain bank records. 277. Denied. 278. The total amount referenced on Composite Exhibit N speaks for itself. Denied that any of the referenced amounts constitute fraudulent transfers. 279. Without sufficient information to admit or deny and, therefore, denied. 280. Denied. 281. Denied. 12 COUNT 20 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(2)) (GREG ZITTEL AND COLLEEN ZITTEL) 282. – 292. Dr. Gregory Zittel and Dr. Colleen Zittel have moved to dismiss Count 20, and Count 20 does not seek relief against Olga Haberland, Laura Strelitzki, or Roland Strelitzki. Thus, no response is required. COUNT 21 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(a)) (ROLAND STRELITZKI AND LAURA STRELITZKI) 293. Laura Strelitzki and Roland Strelitzki incorporate by reference their responses to Paragraphs 1-27 and 82-92 of the Second Amended Complaint. Because Count 21 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga Haberland, no response is required by these defendants. 294. Denied. 295. Admitted that Genicon, Inc. made a document production to Plaintiffs in this matter on September 21, 2018 that included, among other things, certain bank records. 296. Denied. 297. The total amount referenced on Composite Exhibit N speaks for itself. Denied that any of the referenced amounts constitute fraudulent transfers. 298 Denied. 299. Without sufficient information to admit or deny and, therefore, denied. 300. Denied. 301. Denied. 302. Denied. 303. Denied. 304. Denied. 13 COUNT 22 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(b)) (ROLAND STRELITZKI AND LAURA STRELITZKI) 305. – 312. Laura Strelitzki and Roland Strelitzki have moved to dismiss Count 22, and Count 22 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga Haberland. Thus, no response is required. COUNT 23 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(1)) (ROLAND STRELITZKI AND LAURA STRELITZKI) 313. Laura Strelitzki and Roland Strelitzki incorporate by reference their responses to Paragraphs 1-27 and 82-92 of the Second Amended Complaint. Because Count 23 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga Haberland, no response is required by these defendants. 314. Denied. 315. Admitted that Genicon, Inc. made a document production to Plaintiffs in this matter on September 21, 2018 that included, among other things, certain bank records. 316. Denied. 317. The total amount referenced on Composite Exhibit N speaks for itself. Denied that any of the referenced amounts constitute fraudulent transfers. 318. Without sufficient information to admit or deny and, therefore, denied. 319. Denied. 320. Denied. COUNT 24 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(2)) (ROLAND STRELITZKI AND LAURA STRELITZKI) 321. – 331. Laura Strelitzki and Roland Strelitzki have moved to dismiss Count 24, 14 and Count 24 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga Haberland. Thus, no response is required. COUNT 25 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(a)) (ROLAND STRELITZKI AND LAURA STRELITZKI) 332. Laura Strelitzki and Roland Strelitzki incorporate by reference their responses to Paragraphs 1-27 and 82-92 of the Second Amended Complaint. Because Count 25 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga Haberland, no response is required by these defendants. 333. Denied. 334. Admitted that Genicon, Inc. made a document production to Plaintiffs in this matter on September 21, 2018 that included, among other things, certain bank records. 335. Denied. 336. The total amount referenced on Composite Exhibit N speaks for itself. Denied that any of the referenced amounts constitute fraudulent transfers. 337 Denied. 338. Without sufficient information to admit or deny and, therefore, denied. 339. Denied. 340. Admitted that Laura Strelitzki is an insider of Genicon, Inc., as that term is defined in Section 726.102, Florida Statutes. 341. Denied. 342. Denied. 343. Denied. 15 COUNT 26 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(b)) (ROLAND STRELITZKI AND LAURA STRELITZKI) 344. – 351. Laura Strelitzki and Roland Strelitzki have moved to dismiss Count 26, and Count 26 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga Haberland. Thus, no response is required. COUNT 27 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(1)) (ROLAND STRELITZKI AND LAURA STRELITZKI) 352. Laura Strelitzki and Roland Strelitzki incorporate by reference their responses to Paragraphs 1-27 and 82-92 of the Second Amended Complaint. Because Count 27 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga Haberland, no response is required by these defendants. 353. Denied. 354. Admitted that Genicon, Inc. made a document production to Plaintiffs in this matter on September 21, 2018 that included, among other things, certain bank records. 355. Denied. 356. The total amount referenced on Composite Exhibit N speaks for itself. Denied that any of the referenced amounts constitute fraudulent transfers. 357. Without sufficient information to admit or deny and, therefore, denied. 358. Denied. 359. Denied. COUNT 28 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.106(2)) (ROLAND STRELITZKI AND LAURA STRELITZKI) 360. – 370. Laura Strelitzki and Roland Strelitzki have moved to dismiss Count 28, and Count 28 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, or Olga 16 Haberland. Thus, no response is required. COUNT 29 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(a)) (THE CALCATERRA FAMILY TRUST) 371. – 380. Because Count 29 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. COUNT 30 (FRAUDULENT TRANSFER FLA. STAT. SECTION 726.105(1)(b)) (THE THOMAS CALCATERRA FAMILY TRUST) 381. – 388. Because Count 30 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. COUNT 31 (FRAUDULENT TRANSFER FLA. STAT. SECTION 725.106(1)) (THE THOMAS CALCATERRA FAMILY TRUST) 389. – 396. Because Count 31 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. COUNT 32 (Indemnification - GENICON LLC) 397. – 407. Because Count 32 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. COUNT 33 (Indemnification - GENICON INC.) 408. – 418. Because Count 33 does not seek relief against Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, or Roland Strelitzki, no response is required. GENERAL DENIAL Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, and Roland Strelitzki deny each and every allegation not expressly addressed above. Without limitation, if any allegations that were not answered above are interpreted to be directed to Dr. Gregory Zittel, 17 Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, and Roland Strelitzki or otherwise require a response, such allegations are denied AFFIRMATIVE DEFENSES TO COUNTS 1, 9, 17, 19, 21, 23, 25, AND 27 First Affirmative Defense (Statute of Limitations) 1. Count 1 is barred by the applicable statute of limitations to the extent that it seeks to declare the invalidity of a Third Amended Operating Agreement entered into in 2013. 2. Counts 9, 17, 19, 21, 23, 25, and 27 are barred to the extent that they seek to avoid alleged transfers that were made or, if a delayed discovery rule is applicable, discovered or reasonably discoverable outside the operative limitations period. Second Affirmative Defense (Illegality) 3. Farnella Holdings’ claim in Count 1 based on the Voting Proxy Agreement or any other alleged formal or informal agreements for control is barred by illegality. If the Voting Proxy Agreement or another alleged agreement is construed to provide the control rights claimed by Farnella and Farnella Holdings (and disputed by Defendants), the Voting Proxy Agreement or such other agreement would constitute an illegal attempt to circumvent Internal Revenue Service obligations for Farnella and/or Farnella Holdings’ use of funds from an IRA account while attempting to maintain a controlling interest in Genicon, LLC. 4. To the extent that any of Farnella’s fraudulent transfer claims in Counts 9, 17, 19, 21, 23, 25, and 27 are based on his claim as a creditor by virtue of loans that are contrary to law, such claims are barred by illegality. Third Affirmative Defense (In Pari Delicto) 5. Farnella made loans from a qualified retirement account and did not report those 18 loans as distributions. If Farnella, directly or indirectly, had controlled Genicon, Inc., or Genicon, LLC, he would be required to report the loans as distributions and pay applicable taxes and penalties. Farnella is attempting to assert a controlling interest while also failing to report to the IRS the loans from his retirement account as distributions in order to avoid paying taxes. Plaintiffs acted in pari delicto and are not entitled to relief in Count 1 or in Counts 9, 17, 19, 21, 23, 25, and 27 are based on Farnella’s claim as a creditor by virtue of loans that are contrary to law. Fourth Affirmative Defense (Ratification/Waiver) 6. Plaintiffs have waived some or all of the claims asserted in Counts 1, 9, 17, 19, 21, 23, 25, and 27 and ratified the relevant transactions. Without limiting the foregoing, Farnella served as a manager of Genicon, LLC and a director of Genicon, Inc. and was on the compensation and audit committees of Genicon, Inc. Farnella signed operating agreements and consents confirming his lack of control and approval of Genicon, LLC and Genicon, Inc.’s capital and governance structure; approved the employment agreements and compensation arrangements for alleged transferees; knew that alleged transferees were making short term loans to the company; and had full access to Genicon, LLC and Genicon, Inc.’s financial information and the details of related party transactions. With knowledge of or access to the details of the relevant transactions, Plaintiffs did not object or take any action to challenge these transactions, but instead ratified and acquiesced in the transactions and waived any resulting claim. 7. In the operating agreements of Genicon, LLC, Farnella also acknowledged that “any action taken by the affirmative vote of a majority of managers shall create an irrebuttable presumption that said action was made in good-faith to be in the best interest of the company and using care an ordinary prudent person in a like position would exercise under similar 19 circumstances.” To the extent that the board of managers approved any transactions about which Plaintiffs complain, Plaintiffs have waived any claim based on such transactions. Fifth Affirmative Defense (Waiver/Estoppel as to Control) 8. Despite previously claiming to have loaned or invested his own funds, Farnella has in a judicial proceeding and in his capacity as a fiduciary acknowledged that part of the equity and debt Plaintiffs allegedly hold in Genicon, LLC or owned by Genicon Inc. is owned by the Farnella Family Limited Partnership (“FFLP”) or its limited partners, and a New York court has issued an order requiring Farnella to distribute to the limited partners of FFLP 35.5% of the equity or debt interests of Genicon, LLC or Genicon, Inc. held by Farnella Holdings. As such, Plaintiffs have waived and are estopped from asserting their alleged control rights. Sixth Affirmative Defense (Standing) 9. It is unclear whether Plaintiffs have standing to pursue the claims asserted in this action, including Counts 1, 9, 17, 19, 21, 23, 25, and 27 because FFLP, its limited partners, or others may hold or have a claim to the debt and equity interests on which Plaintiffs base their claims. As a result, Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland, Laura Strelitzki, and Roland Strelitzki demand strict proof of Plaintiffs’ standing to bring each of their causes of action. Seventh Affirmative Defense (Unclean Hands) 10. Plaintiffs are not entitled to any equitable relief because they have unclean hands. In addition to the facts set forth in the First through Fifth Affirmative Defenses above, which are incorporated herein by reference, Plaintiffs have repeatedly made false statements about Defendants, including the unfounded allegations of impropriety that are referenced in their 20 Complaint, Amended Complaint, and Second Amended Complaint and form the basis for Genicon, Inc.’s Amended Counterclaim. By reciting these allegations both inside and outside this proceeding, Plaintiffs have caused significant harm to Defendants and Genicon, Inc.’s business, including directly causing the loss of at least one opportunity to sell the company. 11. By taking these actions, Plaintiffs have engaged in inequitable, dishonest, and unfair conduct in regard to the subject matter of this action that has caused harm to Dr. Gregory Zittel, Dr. Colleen Zittel, Olga Haberland,