Order on Defendants' Motion to Dismiss and Strike-Jan-13-2006

8/13/2019 Order on Defendants' Motion to Dismiss and Strike-Jan-13-2006

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IN THE CIRCUIT COURT OF THE TIllRTEENTH JUDICIAL CmCUIT OFTHE STATE OF FLORIDA, IN AND FOR HILLSBOROUGH COUNTY,

CIVIL DIVISION

NEIL J. GILLESPIE,PLAINTIFF,

vs.BARKER, RODEMS & COOK, P.A.,a Florida Corporation; and WILLIAMJ. COOK,

DEFENDANTS._ :/

ORDER ON DEFENDANTS' MOTION TO DISMISS AND STRIKETIDS CAUSE came on for hearing on September 26,2005, upon Defendant's

Motion to Dismiss and Strike, and counsel for the parties being present and having madearguments and the court having considered the Plaintiffs Rebuttal to Defendant's Motionto Dismiss and Strike. Defendant 's Reply to Plaintiffs Rebuttal to Defendant's Motionto Dismiss and Strike and the Plaintiff's Second Rebuttal to Defendant's Motion toDismiss and Strike, and the court being advised fully in the premises, it is thereupon,

ADJUDGED as follows:1 Defendant's Motion to Dismiss and Strike is granted in part and denied in part.

2. Those portions of Defendant's Motion to Dismiss and Strike seeking todismiss the Complaint are denied. Defendant shall have fifteen days from the date of thisorder within which to file responsive pleadings.

DIVISION" F

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3 Those portions o Defendant s Motion to Dismiss and Strike seeking to strikeportions o the Complaint is granted in the following particulars:

a Paragraphs 47, 48, 49 and 50 o the Complaint are stricken.b Exhibit 8 to the Complaint is stricken.c All references to or demands for punitive damages are stricken orfailure to comply with 768.72 o the Florida Statutes.ORDERED in Chambers, at Tampa, Hillsborough County, Florida, this

_ day o J N 3 2 6 2o_

RICHARD A NIELSENCIRCUIT JUDGECopies furnished to:Ryan C Rodems, Esquire300 West Platt Street, Suite 150Tampa, Florida 33606Neil J Gillespie8092 SW 115 th LoopOcala, Florida 34481

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CLtRr Of Cii1CUir COURTIN THE CIRCUIT COURT OF THE TIDRTEENTH JUDICIAL

CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDAGENERAL CIVIL DIVISION

NEIL J. GILLESPIE,Plaintiff, CASE NO OSClJJdJsvs.

BARKER, RODEMS COOK, P.A., DIVISION:_E _a Florida corporation,WILLIAM 1 COOK, DEMAND FOR TRIAL BY JURY

Defendants. --- 1

COMPLAINT FOR BREACH OF CONTRACT AND FRAUDPlaintiff, NEIL J. GILLESPIE, sues defendants, BARKER, RODEMS, COOK,

P.A., a Florida professional service corporation, and WILLIAM J. COOK, a corporateofficer and natural person, and alleges:

Parties1. Plaintiff, NEIL J. GILLESPIE, resides in Ocala, Marion County, Florida.(Hereinafter called GILLESPIE ).2. Defendant BARKER, RODEMS COOK, P.A. is a Florida professional servicecorporation and law fInn with offices located at 300 W. Platt Street, Suite 150, in the cityof Tampa, Hillsborough County, Florida, 33606. (Hereinafter called the LAW FIRM ).3. Defendant WILLIAM J. COOK is a lawyer, a member of the Florida Bar, acorporate officer of the LAW FIRM, and a natural person. (Hereinafter called COOK ).

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Jurisdiction and Venue4. This is an action for damages that exceed $15,000.00.5 The events complained of occurred in the city ofTampa, Hillsborough County,Florida, 33606. The LAW FIRM has offices located at 300 W. Platt Street, Suite 150,Tampa, Hillsborough County, Florida, 33606.

Background Information6. GILLESPIE hired the LAW FIRM to represent him in litigation with AmscotCorporation. GILLESPIE and the LAW FIRM had a written Representation Contract.The litigation failed and Amscot settled for business reasons and to avoid an appeal. TheLAW FIRM was not satisfied with its contractual entitlement to 45% of the TotalRecovery for attorney's fees. The LAW FIRM wanted more money. In fact, the LAWFIRM took over 90% ofthe Total Recovery. In an effort to break the RepresentationContract and legitimize taking 90% of the Total Recovery, COOK used deceit as describedin this Complaint. Ultimately though, COOK lied to GILLESPIE about a Court ruling.COOK told GILLESPIE that the United States Court o ppeals or the Eleventh Circuitawarded the LAW FIRM $50,000 in attorney's fees and costs, triggering a ''whichever ishigher clause for Court awards. The LAW FIRM then created a false Closing Statementto effect the deception. In fact, GILLESPIE later discovered that the United States Courto ppeals never awarded $50,000 to the LAW FIRM, but ruled that each party must beartheir own costs and attorney's fees. The LAW FIRM's unjust enrichment was $18,675.54.

COUNT I - BREACH O CONTRACT7. GILLESPIE realleges and incorporates by reference paragraphs 1 through 6, andalleges and incorporates by reference paragraphs 22 through 51.

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8. GILLESPIE entered into a written Class Representation Contract with the LAWFIRM to perfonn legal services. (Hereinafter the Representation Contract ). (Exhibit 1).9. The legal service perfonned by the LAW FIRM was a contingency lawsuit, furtheridentified as the matter styled Eugene R. Clement. et at v. Amscot Corporation, Case No.8:99-cv-2795-T-26C in the United States District Court, Middle District of Florida,Tampa Division; and on appeal Eugene R. Clement, et al. v. Amscot Corporation, CaseNo. 01-14761-A in the United States Court of Appeals, For the Eleventh Circuit. (Hereinafter called the Action ). The subject matter was payday loan consumer litigation.10. There were three plaintiffs in the Action: Eugene R. Clement, Gay nnBlomefield, and Neil Gillespie.11. The Action sought class action status but the LAW FIRM s various motions forclass action status were denied by the Court.12. The Action settled in GILLESPIE's favor on October 30, 2001. The Actionsettled for business reasons, and the LAW FIRM did not prevail on the merits or appeal.13. The Total Recovery for the Action was $56,000 (Exhibit 2).14. The LAW FIRM refused to honor the tenns of the Representation Contract withGILLESPIE when disbursing his share of the $56,000 Total Recovery.15. Under the tenns and conditions of the Representation Contract, and Florida BarRule 4-1.5(f)(4)(B)(i), the LAW FIRM was entitled to $31,325.46 calculated as follows:

a. Attorney's fees of $25,200 (45% ofthe Total Recovery); andb. Cost and expenses, $3,580.67; andc. Expenses paid to a fonner law finn, $2,544.79 (Jonathan L. Alpert).

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16. Contrary to law and the Representation Contract, the LAW FIRM took $50,000from the Total Recovery under the guise of court-awarded attorney's fees and costs.17. The LAW FIRM s unjust enrichment was $18,675.54.18. GILLESPIE's lawful share of the settlement is $8,224.78. (Exhibit 3).19. The LAW FIRM paid GILLESPIE $2,000.00.20. The LAW FIRM owes GILLESPIE $6,224.78.

WHEREFORE pla intiff demands judgment for $6,224.78 against defendants,together with interest, costs, expenses, and attorney's fees.

COUNT 11- FRAUD21. GILLESPIE realleges and incorporates by reference paragraphs 1 through 20.22. On August 1,2001, United States District Judge Richard Lazzara issued an orderin the Action denying Class Certification as moot, dismissed Count I with prejudice,dismissed Counts and III without prejudice to bring in state court, and closed the file.23. Soon after the ruling described in paragraph 22, COOK told GILLESPIE thatduring a telephone conversation with lawyer John Anthony, the attorney for AmscotCorporation ("Amscot"), that John Anthony offered COOK a $5,000 "consulting fee" or"non-refundable retainer" to refrain from appealing the ruling or filing state law claims.COOK described this payment as an "improper payoff attempt" and not an offer to settle.COOK said that "the Florida Bar likely would prohibit such an agreement." NonethelessCOOK did not report John Anthony's "improper payoff attempt" to the Florida Bar.24. When COOK told GILLESPIE that "the Florida Bar would likely prohibit such anagreement", GILLESPIE believed that John Anthony did something unethical ifnot

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unlawful. Because COOK did not report John Anthony's improper payoffattempt tothe Florida Bar, GILLESPIE became suspect of COOK's motivation and alliances.25. COOK told GILLESPIE that Amscot did not want to pay the plaintiffs anythingbecause Amscot resented the plaintiffs for suing. COOK told GILLESPIE that this was asticking part or barrier to a settlement. COOK told GILLESPIE that Amscot did not

resent COOK or the LAW FIRM, and Amscot wanted to pay money to COOK and theLAW FIRM to settle the Action. COOK maintained that the sticking part w s a $1,000payment to each of three plaintiffs, not a $50,000 payment to the LAW FIRM. Because

this argument was counterintuitive (and later proved false), GILLESPIE became furthersuspect of COOK s motivation and alliances.26. COOK's sticking part argument was his segue into evading the RepresentationContract with GILLESPIE. COOK deceitfully used the sticking part argument to framethe settlement in terms useful to the LAW FIRM and against the interests of his clients.27. COOK falsely told GILLESPIE that the LAW FIRM incurred costs and expensesin the Action of about $33,000. COOK used this amount as a basis to justify his $50,000demand from Amscot. GILLESPIE later learned that the actual costs and expenses wereonly $3,580.67, plus $2,544.79 paid a former law firm, for a total $6,125.46.28. On August 15,2001, COOK wrote GILLESPIE that he would appeal the rulingdescribed n Paragraph 22, but not file a State lawsuit, and demand $1,000 each to settle

the plaintiff's claims, and $50,000 for the LAW FIRM's attorney's fees and costs fromAmscot. COOK s offer was consistent with his sticking part ruse. COOK's separatenegotiation with Amscot placed COOK in a position of conflict with his clients. (Ex. 4).

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29. n August 16,2001 GILLESPIE wrote COOK and specifically challenged hissticking part argument. (Exhibit 5). GILLESPIE wrote to COOK:

I agree with you that the Defendant will probably not accept yoursettlement offer. I believe the sticking point is your request for $50,000in attorney's fees and costs. I do not believe the $1,000 request each formyself, Mr. Clement and Ms. Blomefield is a barrier to settlement.Therefore I suggest you ask for a lesser amount of attorney's fees andcosts. Given your lack of success in this matter thus far, I suggest you ask

for $10,000 in attorney's fees and costs. I believe this is a more realisticamount. Given how poorly the case has gone up to now, I believe it is inour interest to settle quickly.

GILLESPIE was concerned that the ultimate loss of the case would leave him indebted toAmscot for its costs and attorney's fees. COOK's separate negotiation with Amscotplaced COOK in a position of conflict with GILLESPIE.30. n a memo dated Monday, August 20,2001, COOK wrote the following tomemorialize his conversation with GILLESPIE: (Exhibit 6).

a. COOK: I explained to him that I did not believe that the sticking part wascreated through the attorney's fees, but rather it was the payment to the clients.

b. COOK: I told him ofmy conversation with John Anthony in which he offeredto pay this firm $5,000.00 but would not agree to pay our client 's anything.

c. COOK: I told him I rejected that offer. He asked me why I had not mentionedthe settlement offer to him previously. I told him it was not a settlement offer. t was animproper payoffattempt.

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d COOK: I told him that the $50,000.00 demand was not set in stone and wewould consider the $10,000.00 offer that he suggested.31. Once COOK admitted to GILLESPIE that the LAW FIRM would accept $10,000for legal fees, anything more was lawfully part of the Total Recovery to which plaintiffswere entitled a percentage under the terms of the Representation Contract. The proposedsettlement was economic in nature, for business reasons, and was not based on any legalvictory, nor constrained by Truth In Lending Act (TILA) limitations or its fee-shiftingprovision. This settlement was market driven and COOK was rolling the dice, notcollecting lawyer's fees. COOK's demand was speculative and the LAW FIRM hadtaken a proprietary interest in the action, under the guise of collecting lawyer's fees.32. COOK submitted an offer to Amscot on August 20,2001, asking for $1,000 foreach plaintiff, forgiveness of any outstanding loans (GILLESPIE did not have anoutstanding loan), and $50,000 payment to the LAW FIRM for attorney's fees and costs.33. Amscot countered COOK's offer in the preceding paragraph with an offer to payeach plaintiff$I,OOO, forgive any outstanding debts (GILLESPIE did not owe Amscotany money), and a $10,000 payment to the LAW FIRM, in a letter dated August 24,2001.34. Unexpectedly Amscot offered and then paid the LAW FIRM $50,000.35. Likewise Amscot offered and then paid each plaintiff $2,000.36. The $2,000 paid by Amscot to GILLESPIE was substantially less than $10,000COOK told GILLESPIE he might recover as a class-action representative. In fact the$2,000 received w s only 20%, or one-fifth, the recovery GILLESPIE expected.37. The LAW FIRM never sent a bill to Amscot for legal services, nor providedAmscot any basis for the $50,000 n attorney's fees and cost. Amscot unexpectedly

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increased its offer to COOK by $40,000, with little or no negotiation. COOK was happythat he did not report Mr. Anthony's prior improper payoff attempt to the Florida Bar.38. Once Amscot agreed to pay the plaintiffs a monetary settlement, COOK's earliersticking part argument failed as a strategy to evade the Representation Contract with

GILLESPIE. Therefore COOK utilized a new ruse. COOK told GILLESPIE that theUnited States Court o ppeals or the Eleventh Circuit awarded $50,000 in attorney'sfees and costs to the LAW FIRM, and that this fact precluded recovery under theRepresentation Contract, citing a whichever is higher provision for court-awardedattorney's fees and costs.39. The LAW FIRM prepared a phony Closing Statement dated October 31,2001falsely reflecting the $50,000 court-awarded attorney's fees and costs. (Exhibit 7).40. The Closing Statement prepared by the LAW FIRM did not list any costs andexpenses. In fact the LAW FIRM incurred $3,580.67 in costs and expenses, and paid aformer law firm, Jonathan Alpert, $2,544.79, for a total of$6,125.46. COOK did notdisclose this information to GILLESPIE until May 9,2003, over nineteen months later.Also, the LAW FIRM did not disclose that approximately 600 hours of legal work wasspent on the Amscot case for GILLESPIE's benefit until June 23, 2003, over twentymonths later. Since much of this time was spent tthe Jonathan Alpert law firm, and hasalready been paid by Mr. Alpert, this could represent double-billing by the LAW FIRM.However the details of this information remain secret and concealed at this time.41. Informed Consent. GILLESPIE lacked the knowledge to make an informedchoice when he signed the Closing Statement because of the deceptions used by COOKand the LAW FIRM described in paragraphs 27, 40, and elsewhere n this Complaint.

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42. GILLESPIE relied upon COOK s false statements, and the LAW FIRM's falseClosing Statement, specifically the fact that the United States Court o ppeals or theEleventh Circuit awarded 50,000 in attorney's fees and costs, and in reliance thereuponGILLESPIE approved the settlement.43. The LAW FIRM took 50,000 from the Total Recovery of the Action under theguise of court-awarded costs and attorney's fees on or about November 1 2001, and paidGILLESPIE 2,000. The LAW FIRM also paid 2,000 each to Eugene R. Clement andGay Ann Blomefield. This event occurred in the LAW FIRM office in the city of Tampa,Florida, Hillsborough County. (Exhibit 2).44. On May 9,2003 COOK disclosed to GILLESPIE the actual costs and expensesincurred by the LAW FIRM in the Action. Because of the significant discrepancybetween the actual amount ( 6,125.46) and the false amount ( 33,000) that COOK saidwere incurred in paragraph 27, GILLESPIE further investigated the settlement.45. GILLESPIE located the Appellate Court file and read that the United States Courto ppeals or the Eleventh Circuit granted a Motion for Dismissal with the partiesbearing their own costs and attorney's fees. This proved the falsity of COOK's assertionthat the Appellate Court awarded 50,000 to the LAW FIRM. (Exhibit 7).46. COOK and the LAW FIRM committed fraud because:

a. COOK s statement to GILLESPIE that the Appellate Court awarded the LAWFIRM 50,000 in attorney's fees and costs was a material fact that was untrue, as was theLAW FIRM s Closing Statement to GILLESPIE listing court-awarded fees and costs of

50,000. The Closing Statement 's disclosure was a material fact that was untrue; and

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b The falsehood described above was known by COOK and the LAW FIRM tobe untrue at the time it was made; and

c The falsehood by COOK and the LAW FIRM was stated for the purpose ofinducing GILLESPIE to approve a settlement; and

d. GILLESPIE relied upon the falsehood from COOK and the LAW FIRM as trueand correct, and approved the settlement on October 30, 2001; and

e. By approving the settlement GILLESPIE suffered financial loss of $6,224.78,by accepting the sum of $2,000 instead of the sum of $8,224.78 to which GILLESPIEwas entitled under law and the Representation Contract.47. GILLESPIE notified the LAW FIRM of its Breach of Contract and Fraud June 13,2003. LAW FIRM partner Chris A. Barker responded but failed to satisfactorily explainthe facts described in this complaint. Mr. Barker refused to account for the LAW FIRM'sattorney's fees, and refused to honor the terms of the Representation Contract.48. Mr. Barker wrote GILLESPIE on June 23 2003 and terminated further discussion.Additionally Mr. Barker wrote that Furthermore, approximately 600 hours of legal workwas spent on the Amscot case for your benefit. But Mr. Barker refused to account forthe hours, and it is possible that much of this time was spent at the Jonathan Alpert lawfirm and has already been paid by Mr. Alpert.49. GILLESPIE wrote Mr. Barker on June 24, 2003, requesting a meeting for aexplanation of the situation. Mr. Barker did not reply. GILLESPIE wrote, in part:

Yesterday I spoke with Jonathan Alpert about this situation. Hereviewed the enclosed documents, but was at a loss to explain

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them. Mr. Alpert suggested that I meet with you and Bill for anexplanation. I am willing to do this on neutral territory.

50. GILLESPIE filed an ethics complaint against COOK on June 7,2004 with the Florida Bar. The initial investigator, William L. Thompson,spent over six months on the complaint, then left employment with theFlorida Bar. After changing investigators the Florida Bar wrote onFebruary 9 2005 that there was insufficient evidence of a violation of theRules Regulating the Florida Bar to warrant further proceedings, and that

its disposition had no effect on any further legal remedy GILLESPIE maychoose. During its review, the Florida Bar used an objective evidencestandard to reach its decision. When GILLESPIE questioned the findings,the Florida Bar could not support its decision. n essence the Florida Barmerely adopted COOK s response, which itselfwas inaccurate and selfserving. Also, the Florida Bar s inquiry was narrow, so narrow that whenGILLESPIE asked if John Anthony's improper payoff attempt wasunethical, or if COOK was required to report the incident, the Florida Barresponded by saying that the issue was not considered and that a separatecomplaint must be filed. On June 7, 2005, Susan Bloemendaal, ChiefDiscipline Counsel wrote that GILLESPIE was .. .free to pursue a lawsuit

against Mr. Cook and/or his law finn should you so desire. GILLESPIEchose a lawsuit rather than pursue another complaint or a fee grievance.51. When GILLESPIE joined this Action as a plaintiff, he believedArnscot had violated consumer law as COOK advised. During the course

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of litigation the Court ruled otherwise, and GILLESPIE accepted the factthat COOK was wrong and that Amscot acted lawfully. Also during thecourse of litigation it became clear to GILLESPIE that COOK wasdeceitful, and that the Breach of Contract and Fraud described in thisComplaint were far worse than anything of which Amscot was accused.GILLESPIE recently apologized to Amscot's President, Ian Mackechnie.(Exhibit 8).

WHEREFORE plaintiffdemands judgment for punitive damages in the amount of

three times his loss of 6,224.78, or 18,674.34 for fraud against defendants, togetherwith interest, costs, expenses, and attorney's fees.

emand for Trial y JuryPursuant to Rule 1.430(b) of the Fla. R. Civ. P., plaintiffdemands trial by jury.RESPECTFULLY SU MITIED this I / l : : fay of August, 2005.

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Gillespie v. Barker, Rodems & Cook, PA, t al.

Exhibit 1

Exhibit 2

Exhibit 3

Exhibit 4

Exhibit 5

Exhibit 6Exhibit 7

Exhibit 8

Exhibits

Class Action Representation Contract

Closing Statement, Barker, Rodems Cook, PA

Lawful Settlement of Action, spreadsheet

August 15,2001 letter, Cook to Gillespie

August 16, 2001 letter, Gillespie to Cook

August 20, 2001 Cook memorandumu S Court of Appeal for the Eleventh Circuit,Motion to Dismiss with Prejudice (Granted)

July 25, 2005 letter, Gillespie to Amscot


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CLASS REPRESENTATION CONTRACT

I PURPOSEl We, Neil Gil lespie do hereby retain and employ the law firm of Barker,Rodems & Cook, P.A., to investigate my potential claim resulting from my payday loanswith AMSCOT Corporation and, if advisable, to pursue necessary litigation on mybehalf.l We understand that I/we may be one of several plaintiff(s) or part of a class ofplaintiff(s) represented by Barker, Rodems & Cook, P.A.

II COSTS AND EXPENSESl We hereby agree to pay for the costs and expenses of the investigation andpreparation of my/our claims for damages. Should it be necessary to institute a lawsuit orarbitration proceeding, I/we agree to pay all costs and expenses associated with any Court

or arbitration proceeding. If an appeal of any decision is filed, regardless of the person orparty 'filing such appeal, I agree to pay the costs and expenses associated with initiatingor responding to such appeal.

l We authorize Barker, Rodems & Cook, P.A., to advance and pay any costs andexpenses it deems appropriate to the handling of my case. I/We will pay Barker, Rodems& Cook, P.A., for the costs and expenses advanced out of the portion of any recovervremaining after attorneys' fees have been subtracted. l We will then receive the portionof what remains, which is known as the "net recovery". Thus, the "total recovery" (allmonies received or collected, including attorneys' fees, if awarded) less Barker, Rodems& Cook, P.A.'s attorneys' fees and any costs and expenses will equal the "net recovery".

IIVVe understand that my/our portion of the dnet recovery" wiii be a prorated or perperson share which will be proportional to that of all other class members. The amount ofmoney I/we receive will be determined by dividing the "net recovery" (the amount of anyrecovery remaining after attorneys' fees and expenses have been SUbtracted) by thenumber of class members who are determined eligible to receive proceeds from anyjudgment or settlement. l We understand that the Court or other tribunal may approve adifferent ratio or formula depending upon the circumstances.

If there is no recovery, or if the total recovery is not adequate to pay for all of thecosts and expenses advanced, I/we understand that Barker, Rodems & Cook, PIA will notseek payment from me for any expenses.


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If I/we terminate this contract, then Barker, Rodems Cook, P.A., may seekpayment from me/us for any costs and expenses allowed by Jaw.III nORNEYS FEES

In almost all cases in America, each party to a lawsuit or arbitration proceeding paysits own attorneys' fees. In rare cases, the Defendant(s) may pay all or part ofth attorneys'fees or the Court or arbitration panel may award attorneys' fees based upon a statute orotherwise.I/We agree to pay Barker, Rodems Cook, P.A., an attorneys' fee if it is successful

in obtaining any monies or other benefit on my behalf. lANe understand that Barker,Rodems Cook, P.A., will receive the attorneys' fees awarded by a Court or arbitrationpanel orwill receive the applicable percentage of the "total recovery" (all monies receivedfrom the Defendant(s) including, but not limited to, money for actual damages, punitivedamages, interest, penalties, attorneys' fees and expenses), whichever is higher. Theapplicable p r n t ~ g s shall be as follows:A. 33.334% of the "total recovery" priorto the time that an answeris filed or a demand for appointment of arbitrator(s) is made;thereafter,B. 40% of the "total recovery" from the time of the filing of ananswer or the demand for appointment of arbitrator(s), throughthe entry of a judgment;C. An additional 5% of the "total recovery" after a Notice ofAppeal is filed by any person or party or if post-judgment relief

or action is required for recovery on the jUdgment.In the event that my/our claim is settled on terms of an agreement calling forpayment in insialiments, whether rnonthiy, annuaJiy or otherwise, in the future, my/ourattorneys' contingent fee percentage shall be calculated on the costs of any structuredsettlement or, if the cost is unknown, on the present money value of the structuredsettlement. If both the damages and the attorneys' fees are to be paid out in futureinstallments, this limitation shall not apply.I/We understand that if there is no recovery. I/we will not be indebted to Barker,Rodems Cook. P.A.. for any attorneys' fees.

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UARKER, RODEl\fS COOK, P.A.CLOSIN' G STATEMENTStyle ofCase: Eugene R Clement, Gay Ann Blomefield, and As of: October 31, 2001Neil Gillespie v. AMSCOT Corporation.OlU File No.: 99.4766

ATTORNEYS' FEES $ 50,000.00COSTSPAY1vIENTS TO CLIENTS

EUGENE R. CLEMENT $ 2,000.00GAY ANNBLOMEFIELD 2,000.00NEIL GILLESPIE 2,000.00

TOTAL $ 56,000.00

In signing this closing statement, I acknowledge that AMSCOT Corporation separately paidmy attorneys $50,000.00 to compensate my attomeys for their claim against AM:SCOT for court-awarded fees and costs. I also acknowledge that I have received a copy of the fully executed Releaseand Settlement Agreement dated October 30, 2001.


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Lawful Settlement o ction

Style ofCase: Eugene R. Clement, Gay nn Blomefield, and Neil Gillespie v. MSCOT Corporation

Total Recovery 56,000.00Legal Fees (45%) - Barker, Rodems Cook, P.A. 25,200.00Costs and expenses - Barker, Rodems Cook, P A 3,580.88Costs paid to Alpert law firm 2,544.79

Total amount due Barker, Rodems, Cook, P.A.Under the Contract and Bar Rule 4-1.5(f)(4)(B)(i) 31,325.67Total amount due plaintiffsUnder the Contract and Bar Rule 4-1.5(f)(4)(B)(i) 24,674.33Individual amount due each of three plaintiffs 8,224.78Amount already paid to each plaintiffby Barker, Rodems Cook, P A 2,000.00Amount owing to each plaintifffrom Barker, Rodems Cook, P.A. 6,224.78


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Neil J Gillespie1121 Beach Drive NE, Apt.C-2 St.Petersburg,Florida33701-1434

Telephone ndFax:(727)823-2390

VIAFAXAND FIRSTCLASS MATI..August16,2001William J.Cook.,Attorneyat LawBarker,Rodems Cook.,PA300 West PlattStreet, Suite150Tampa, Florida33606Re: Eugene R. Clement individually and on behalfofotherssimilarly situated

MSCOTCorporationCaseNo. 99.2795-Civ-T-26C Your FileNo.: 99-4766

DearBillThank youfor your letterdated August15,2001 relativetotheabovecaptionedcase. Iagreewithyou thatthe Defendantw ll probablynot acceptyour settlementoffer.

Ibelievethe stickingpointis your requestfor $50,000inattorney s fees and costs. Idonot believethe $1,000requesteach for myself,Mr. Clementand Ms.Blomefieldis abarrierto settlement. ThereforeIsuggestyou ask foralesseramountofattomey s feesandcosts.Givenyour lackof successinthismatter thusfar,Isuggestyouask for$10,000in

attorney s feesand costs. Ibelievethisis amore realisticamount. Givenhow poorlythecase hasgone up to now, Ibelieveitis inour interestto settlequickly.

Thank you foryour kind consideration.Sincerely,

cc:Kindlyprovideacopy oftbis lettertoMr.Clementand Ms.Blomefield


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TOFROM

R

MEMOR NDUM

File /WJC W ...--'Monday, August 20, 2001Clement v. AMSCOT99 4766

I spoke with Neil Gillespie on August 17, 2001. We had a fairly lengthyconversationabout the pluses and minuses of going forward with the appeal and the settlement offer.I explained to him that J did not believe that the sticking part was created through theattorneys' fees, but rather it was the payment to the clients. I told him ofmy conversationwith John Anthony in which he offered to pay this firm 5,000.00 but would not agree topay our clients anything. J told him that I rejected that offer. He asked me why I had notmentioned the settlement offer to him previously: I told him that it was not a settlementoffer. It was an i er a a ttempl At the end of the conversation, when I told himthat I wou wait until Monday bef re ent the settlement offer, he told me that that wasnot necessary. He simply wanted to advise me that he was not necessarily happywith the50,000.00 settlement demand. I told him that the 50,000.00 demand was not set instoneandwe could consider the 10,000.00 offerthat he suggested. I told him that itwasnot likely that we would receive such an offer, however.

WJCWJC mss


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IN TIlE UNITED STATES COURT OF APPEALSFOR 'rilE ELEVENTH C I R C U I ~ ? = ; : ; ~ : _

FILEDU S COURT OF APPEALS[LEVEN III CIRCUIT

No. 01-14761-1\1\DEC 0 7 2001

EUGENE R. CLEMENT,ind iv idua l ly and on beha l f o f o th e r s simila=-ly T1fOMAS K. MUNs i tua ted , pl ai t i f f ~ A ~ \ l a n tGAY ANN BLOMEFIEW, 99 Ct ~ 79S:- e ~ : 5NEIL GILLESPIE, Pla in t i f f s - In t e rve nor s Counter -Defendan ts -Appel lan ts ,. -

versus C ~ - ; ~.e rrAMSCOT CORPORATION, .A Flor ida Corporat ion , D e f e n d a n t I n t e r v e n o ~ ~ c o u r i ~ r C l a i m a n t ~ p ~ e l l t T .

....J-"------------------------On Appeal from t he United S t a t e s D i s t r i c t Court f o r theMiddle Di s t r i c t of F lor idaBEFORE: EDMONDSON and BARKETT, Circu i t Judges .BY THE COURT:

The par t i e s j o i n t s t ipUla t ion fo r dismissa l o f t h i s appealwi th pre jud ice , which i s cons t rued as a motion to d ismis s t h i sappeal wi th pre jud ice , with the pa r t i e s bear ing t h e i r own c os t sand a t t o r n e y ' s fees , i s G ~ E D .

ATRUE COPl - ATIESTED:CLERK U S COURT OF APPAlS

ElEYElUH CIRCUIT:j . l1e C u ~ u c :

?DEPU1YCLERKllUJlTA QEOIlQll

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Neil J. Gillespie8092 SW IIS th LoopOcala, Florida 34481

Telephone: (813) 810-01S1

July 25, 200SIan Mackechnie, PresidentAmscot Corporation600 N. Westshore Blvd., 12th FloorTampa, Florida 33609RE: Clement et aI v. Amscot Corporation, Case No. 8:99-cv-2795-T-26C, US DistrictCourt, Middle District Florida, Tampa Division; on appeal, ase No. 01-14761-A USCourt of Appeals, For the Eleventh CiIcuitDear Mr. Mackechnie,

I was a plaintiff inthe above captioned lawsuit. While this action is settled, Iregret becoming involved, and was pressured into it by my lawyer, William Cook. I amsorry for the consequences you suffered. About two years ago I found discrepancies inthe case file. This is part of my attempt to uncover the truth. s I see it, you paid43,000.00 too much to settle this case. Here's why.Prior to my involvement in the above captioned lawsuit, Mr. Cook represented mein a lawsuit against ACE. America s Cash Express, for payday loan rolI-over transactions.The lawsuit was joined by Florida Attorney General Robert Butterworth. I still believe

the ACE litigation was justified. However, in my view Am.scot was not as culpable asACE. and I initially declined Mr. Cook s solicitation to join the lawsuit. But Mr. Cooksaid that I was selfish for not suing Am.scot, and I relented.During the course of litigation it became apparent to me that Mr. Cook and hisassociates were incompetent and not truthful. During the settlement negotiations I tried

to settle this case for 10,000.00 in legal fees and 1.000.00 to each of the three plaintiffs(see copy of my letter, enclosed). You ultimately paid S6,000.00 to settle, and I believethis was the result of our lawyers' collusion. This is my opinion, and I welcome anysupporting evidence. In the alternative, perhaps your lawyer John Anthony was just avery poor negotiator, and you paid 43,000.00 too much to settle the lawsuit.I filed a complaint against William Cook with the Florida Bar (TFB No. 200411.734(13C) to no avail. I am available to discuss this further if you wish. Thank you.


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oIN THE CIRCUIT COURT OF THE TIllRTEENTH JUDICIALCIRCUIT IN AND FOR mLLSBOROUGH COUNTY, FLORIDAGENERAL CIVIL DIVISION

NEIL J GILLESPIE,Plaintiff, CASE NO.: 2005 CA-7205

vs.BARKER, RODEMS & COOK, P.A., DNISION Fa Florida corporation,WILLIAM J COOK, DEMAND FOR TRIAL BY JURy

Defendants. _/PLAINTIFF'S RESPONSE TO

DEFENDANTS' MOTION TO DISMISS AND STRIKEPlaintiffNeil J. Gillespie responds to Defendants' Motion to Dismiss and Strike,

and opposes the motion as follows:1 Denied. Count I states a cause of action for breach ofcontract.2. Denied. Count I is not barred by the doctrines ofwaiver and estoppel.3. Denied. Count II states a cause ofaction for fraud.4. Denied. Count II is not barred by the economic loss rule.5 Denied. Defendant's reliance upon section 768.72(1) Florida Statutes is

wrong because the statue pertains to Negligence actions, and Count II alleges Fraud.6. Denied. Defendant Cook committed fraud and breach ofcontract, neither

ofwhich is within the course and scope of his employment with Defendant Barker,Rodems Cook, P.A.

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o7 Denied. Paragraphs 47 through 50 and Exhibit 8 are material, pertinent

and not scandalous.8 Denied. Plaintiff's claim for attorney's fees is proper because Plaintiffhas

paralegal training, and his claim for attorney's fees is for paralegal fees. Also, Plaintiffhas consulted with attorneys about this case and may do so over the course of litigation.Plaintiff's request for those attorney's fees is proper and lawful.

WHEREFORE, Plaintiff opposes Defendants' Motion to Dismiss and Strike andrequests this Honorable Court to deny the motion.

/yLRESPECTFULLY SU MITfED this 6 day of September, 2005.

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o IN THE CIRCUIT COURT FO THE THIRTEENTH JUDICIAL CIRCUITANDFOR HILLSBOROUGH COUNTY, FLORIDA

GENERAL CIVIL DIVISIONNEIL J. GILLESPIE,

Plaintiff,vs. CaseNo.: 05CA7205Division: FBARKER, RODEMS COOK, P.A.,aFlorida corporation; and WILLIAMJ. COOK,

Defendants. _ : /

DEFENDANTS' NOTICE OF HEARINGPLEASE TAKE NOTICE thattheDefendants'MotiontoDismissandStrike,willbecalled

upforhearingbeforetheHonorableRichardA.Nielsen,CircuitCourtJudge,ThirteenthJudicialCircuit,Room524,800EastTwiggsStreet,Tampa,Florida33602,onMonday, September 26,

2005at 10:30a.m.or assoonthereafterascounselmaybe heard. TimeReserved:30minutes.RESPECTFULLYSUBMITTEDthis dayofSep!e ~ i J 2 0 0 5 J

111 - . QJJj;1AIfRyan .stopherRodems,EsquireFloridaBarNo.947652Barker,Rodems Cook,P.A.300WestPlattStreet,Suite150Tampa,Florida33606Telephone: 813/489-1001Facsimile: 813/489-1008AttorneysforDefendants,Barker,Rodems Cook,P.A.andWilliamJ.Cook

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oCERTIFICATEO SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Defendants' Notice ofHearing has been furnished via U.S. Mail to Neil J Gillespie, 8092 W 11S th Loop, Ocala, Florida34481, this day of September, 2005.

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IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIALCIRCUIT IN AND FOR IDLLSBOROUGH COUNTY, FLORIDA

GENERAL CIVIL DIVISION

NEIL J GILLESPIE,Plaintiff, CASE NO.: 2005 CA-7205vs.

BARKER, RODEMS & COOK, P.A., DNISION:Fa Florida corporation,WILLIAM J. COOK,

Defendants._ : /

PLAINTIFF's REBUTTAL TO

DEFENDANTS' MOTION TO DISMISS AND STRIKE

1 Mr. Rodems' argument before this Honorable Court belies the fact thatDefendants once represented Gillespie as his lawyers, and owed Gillespie a duty underthe attorney/client relationship. t is long established that the relationship between anattorney and his client is one of the most important, as well as the most sacred, known tothe law. The responsibility of an attorney to place his client's interest ahead ofhis own indealings with matters upon which the attorney is employed is at the foundation of ourlegal system. (Deal v. Migoski, 122 So. 2d 415). It is a fiduciary relationship involvingthe highest degree of truth and confidence, and an attorney is under a duty, at all times, torepresent his client and handle his client's affairs with the utmost degree of honesty,forthrightness, loyalty, and fidelity. (Gerlach v. Donnelly, 98 So. 2d 493).

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2 The Fiduciary Relationship(a) Background. The Amscot Action was originally filed December 9, 1999 by

the law firm Alpert, Barker, Rodems, Ferrentino Cook, PA; Eugene Clement was thesole plaintiff, and Gillespie signed-on November 3, 2000. n a different lawsuit, Gillespiesigned a Representation Contract with the Alpert firm on March 21, 2000, against ACEAmerica's Cash Express; this lawsuit was later joined by Florida Attorney General RobertButterworth. Jonathan Alpert, the senior partner, had a national reputation,. and his lawfirm appeared stable and competent. Then Mr. Alpert unexpectedly ran for StateAttorney; he lost the November 7th election, and a month later the law firm dissolved.

(b) Barker. Rodems Cook. P.A. was formed on or about August 4,2000, whilethe Defendants were still employed by the Jonathan Alpert law finn. For a period of fourmonths the Defendants were employed by the Alpert finn while quietly working on theirother plans. Defendants are all members of The Florida Bar: Chris Barker, age 40, J.D.University of Alabama; Ryan Rodems, age 38, J.D. Florida State; and William Cook, age37, J.D. Stetson. By contrast, of the Amscot plaintiffs, one was in his 70 s and retired,possibly with a high school education; another was middle aged and worked for a tempservice, and Gillespie, age 49, disabled since 1993, but with a BA earned over a twentyyear period, with a few paralegal courses. The lawyers and their clients were a verydisparate group, with the lawyers in a vastly superior position ofknowledge and power.

(c) Evidence of malice. moral turPitude. gross negligence. reckless indifference tothe rights of others. wantonness. oppression. outrageous aggravation and fraud. When theAlpert finn dissolved, Defendants quickly moved into new offices as Barker, RodemsCook, P.A. While Defendants immediately filed a Joint Stipulation for Substitution of

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Counsel in the Amscot Action, Defendants failed to execute the required contingent feecontracts with their clients. After a short honeymoon period, the situation deteriorated.

The following is alleged in the Complaint: Defendants failed to prevail on themerits of the Amscot Action, and failed to attain class action status. On August 1, 2001,United States District Judge Richard Lazzara issued an order in the Amscot Actiondenying Class Certification as moot, dismissed Count I with prejudice, dismissed CountsII and III without prejudice to bring in state court, and closed the file. Soon after, theattorney for Amscot, John Anthony, called Defendants trying to hire Plaintiff 's lawyers,offering Defendants a $5;000 consulting fee or non-returnable retainer. DefendantCook described the money as an improper payoff attempt and not an offer to settle. Mr.Cook said that the Florida ar would likely prohibit such an agreement but Mr. Cookdid not report John Anthony's improper payoff attempt to the Florida Bar. Instead, Mr.Cook turned on his clients and embraced John Anthony in pursuit of a $50,000 payment.Cook concocted a sticking part argument, saying Amscot was mad at the plaintiffs forsuing and therefore did not want to pay them anything, while maintaining that Amscotwanted to pay Cook and the law finn money to settle the Action. Cook told Gillespie thatthe law finn incurred about $33,000 in costs and expenses when in fact i t was laterrevealed that the actual amount was $3,580.67, and $2,544.70 paid to Mr. Alpert. Duringthis time Cook and the law finn refused to account for its attorney's fees as required bythe Client's Statement ofRights, which the law finn also neglected to execute. Mr. Cookdisparaged the Representation Contract, saying Gillespie's recovery was limited to$1,000, citing a Truth In Lending Action (TILA) statutory limitation, even though thelimitation was moot under the circumstances. As for Gillespie 's recovery as potential

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class action representative, this too was ignored or discounted, even though Gillespieendured a nasty deposition by John Anthony, Mr. Cook was not zealously representingGillespie's interest, but was focused on his own plans to extract $50,000 from Amscot.There was no basis for the amount of the $50,000 demand, other than greed. Cook neverpresented Gillespie with any itemization of costs, no time sheets, no hours worked orhourly rate, nothing, no method of determining the $50,000 lawyer's fee. Cook s stanceand separate negotiation with Amscot placed Cook in a position of conflict with hisclients, and Gillespie was concerned with possible adverse consequences of a failedAmscot Action, including paying Amscot's costs and attorney's fees. Because Cook saidGillespie's recovery was limited to $1,000, it was in Gillespie's interest to settle quickly.t was not in Gillespie's interest to help Cook and the law irm secure a $50,000 windfall,

to which there was no evidence of entitlement. If this highly speculative effort failed, orother unforeseen events intervened, Gillespie would be stuck paying Amscot's costs andattorney's fees. Gillespie discussed this with Cook, in his law office, and Cook statedthat he would accept $10,000 from Amscot for fees and costs, but wanted to first try andget $50,000 instead. On August 15, 2001, Cook wrote Gillespie that he would appealJudge Lazzara's order, and demand a settlement from Amscot of$I,OOO for each Amscotplaintiffand $50,000 for himself. This prompted Gillespie's August 16, 2001 letter toCook the next day, a communication of protest challenging Cook s sticking partargument. Gillespie wrote (Exhibit 5 of the Complaint):

I agree with you that the Defendant will probably not accept yoursettlement offer. I believe the sticking point is your request for $50,000in attorney's fees and costs. I do not believe the $1,000 request each for

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myself, Mr. Clement and Ms. Blomefield is a barrier to settlement.Therefore 1suggest you ask for a lesser amount of attorney's fees andcosts. Given your lack of success in this matter thus far, 1 suggest you askfor $10,000 in attorney's fees and costs. 1believe this is a more realisticamount. Given how poorly the case has gone up to now, 1believe it is inour interest to settle quickly.In a memo dated Monday, August 20, 2001, Cook wrote the following to

memorialize his conversation with Gillespie: (Exhibit 6 of the Complaint).a. COOK: I explained to him that 1did not believe that the

sticking part was created through the attorney's fees, but rather it was thepayment to the clients.

b. COOK: I told him ofmy conversation with John Anthony inwhich he offered to pay this firm $5,000.00 but would not agree to pay ourclient's anything.

c. COOK: I told him 1rejected that offer. He asked me why 1hadnot mentioned the settlement offer to him previously. 1told him it was nota settlement offer. t was an improper payoff attempt.

d. COOK: I told him that the $50,000.00 demand was not set instone and we would consider the $10,000.00 offer that he suggested.Paragraph 3 of the Complaint alleges how Defendants essentially took a

prohibited proprietary interest in the Amscot Action:31. Once COOK admitted to GILLESPIE that the LAW FIRM would

accept $10,000 for legal fees, anything more was lawfully part of the Total

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Recovery to which plaintiffs were entitled a percentage under the tenns othe Representation Contract. The proposed settlement was economic innature, for business reasons, and was not based on any legal victory, norconstrained by Truth n Lending Act (TILA) limitations or its fee-shiftingprovision. This settlement was market driven and COOK was rolling thedice, not collecting lawyer's fees. COOK's demand was speculative andthe LAW FIRM had taken a proprietary interest in the action, under theguise o collecting lawyer's fees.Another example o Defendants' indifference to Gillespie in the settlement was

the forgiveness o outstanding loans to Amscot plaintiffs Clement and Blomefield. WhenGillespie told Cook that he did not have any outstanding debt to Amscot, and that debtforgiveness to the other Amscot plaintiffs created an inequity in the settlement, Cook wasdismissive. And although Defendants did ultimately secure for all three Amscot plaintiffsanother $1,000 each from Amscot, this was minimal, late in arriving, a fonn hushmoney to protect their $50,000 windfall from Amscot.

One o the more egregious acts in this matter was Defendants' ruse that the UnitedStates Court o Appeals for the Eleventh Circuit awarded the Defendants $50,000 inattorney's fees and costs. Defendants also created a phony Closing Statement falselyreflecting $50,000 in court-awarded attorney's fees and costs. Plaintiff alleges thiswanton, unconscionable and self-serving behavior in Paragraphs 38 and 39:

38. Once Amscot agreed to pay the plaintiffs a monetary settlement,COOK's earlier sticking part argument failed as a strategy to evade theRepresentation Contract with GILLESPIE. Therefore COOK utilized a

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new ruse. COOK told GILLESPIE that the United States Court o ppealsor the Eleventh Circuit awarded $50,000 in attorney's fees and costs tothe LAW FIRM, and that this fact precluded recovery under theRepresentation Contract, citing a "whichever is higher" provision forcourt-awarded attorney's fees and costs.39. The LAW FIRM prepared a phony Closing Statement datedOctober 31 2001 falsely reflecting the $50,000 court-awarded attorney'sfees and costs. (Exhibit 7)."Under the Florida Rules of Professional Conduct, in the event there is a recovery,

upon the conclusion of the representation, the lawyer must prepare a closing statementreflecting an itemization of all costs and expenses, together with the amount of the feereceived by each participating lawyer or law firm. A copy of the closing statement mustbe executed by all participating lawyers, as well as the client, and each must receive acopy. (Rules Regulating the Florida Bar, Rule 4-1.5(f)(5). Notwithstanding that theClosing Statement is a sham, the statement did not reflect an itemization of all costs andexpenses, together with the amount of the fee received by each participating lawyer orlaw firm. n the past Defendants responded to this by saying it was not required becauseAmscot paid them separately, but nothing in the Rules Regulating the Florida Bar createsan exemption to Rule 4-1.5(f)(5).

Taken together, Defendants' behavior deprived Gillespie of the knowledge andinformation required to make an informed choice when he signed the closing statement.The present case involves the following two separate contracts:

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(i) The Representation Contract (contingent fee), Exhibit 1 to the Complaint; and(ii) The Settlement Agreement of October 30,2001 between Amscot

Corporation, Neil Gillespie, Barker, Rodems Cook, P.A., and the other two plaintiffs tothe Action, Eugene R Clement and Gay Ann Blomefield.

Defendants induced Gillespie to enter into the second contract, the SettlementAgreement of October 30,2001, under false pretenses. Defendants told Plaintiffthat theUnited States Court of Appeals for the Eleventh Circuit awarded Defendants inattorney's fees and costs, when in fact the Appellate Court ruled that each party must payits own costs and attorney's fees. Defendants wanted Gillespie to believe that theAppellate Court awarded it $50,000 so that Defendants could collect the money and avoidthe terms of the contingent fee contract. Gillespie plead the essential elements of fraud inthe Complaint, Exhibit 46:

46. COOK and the LAW FIRM committed fraud because:a. COOK s statement to GILLESPIE that the Appellate Court awarded theLAW FIRM $50,000 in attorney's fees and costs was a material fact thatwas untrue, as was the LAW FIRM s Closing Statement to GILLESPIElisting court-awarded fees and costs of $50,000. The Closing Statement'sdisclosure was a material fact that was untrue; andb. The falsehood described above was known by COOK and the LAWFIRM to be untrue at the time it was made; andc. The falsehood by COOK and the LAW FIRM was stated for thepurpose of inducing GILLESPIE to approve a settlement; and

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d GILLESPIE relied upon the falsehood from COOK and the LAWFIRM as true and correct, and approved the settlement on October 30,2001; ande By approving the settlement GILLESPIE suffered fmancial loss of6,224.78, by accepting the sum of 2,000 insteadof the sum of 8,224.78

to which GILLESPIE was entitled under law and the RepresentationContract.

Defendants behavior was a breach of fiduciary duty showing that Defendantsacted with malice, moral turpitude, gross negligence, reckless indifference to the rights ofothers, wantonness, oppression, o u t r g ~ u s aggravation and fraud. Plaintiffmoves toamend the Complaint to include a count ofBreach ofFiduciary Duty, a count separatefrom that ofFraud and Breach of Contract. Gillespie sustained independent damages, thedebt forgiveness other Amscot plaintiffs enjoyed created an inequity in his settlement,because Gillespie did not have any outstanding debt with Amscot, and other damages.

As to the existing Count II, Fraud, it may be more accurately plead as Fraud in theInducement. f fraud occurs in connection with misrepresentations, statements oromissions which cause a party to enter into a transaction, then such fraud is fraud in theinducement and survives as an independent tort. (Susan Fixel. Inc. v RosenthalRosenthal, Inc., 842 So. 2d 204). Defendants induced Gillespie enter into a settlementagreement with Amscot under false pretenses, and that contract was separate and distinctfrom the contingent fee contract between Defendants and Gillespie.3 Mr. Rodems argued the following case law before this Honorable CourtSeptember 26, 2005:

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(a). Defendants rely upon Geico General Ins. Co., Inc. v. Graci, 849 So. 2d1196, and Franz Tractor Co. v. J.J. Case Co., 566 So. 2d 524, arguing that when there areconflicts between the allegations and the documents attached as exhibits, the plainlanguage of the document will control.

(i). In his argument, Mr. Rodems referred to Plaintiff s Exhibit 1 of theComplaint, the Representation Contract, and stated that the contract was not signed, butthat he would accept the contract as if it were signed. Mr. Rodems contradicts the veryrule he asks this Court to honor. The Representation Contract is not signed because theparties never executed the contract. f the plain language of this document controls, thenthe document is not executed. Mr. Rodems appears to mislead the Court about this fact.

(ii) Concerning Exhibit 2 of the Complaint, the Closing Statement, Mr.Rodems argues that because the Closing Statement conflicts with the pleadings, that theplain language of the Closing Statement controls. In Geico and Franz Tractor, thetruthfulness of the exhibits is not in question, so the plain language controls. In thepresent case, Plaintiff attached the Closing Statement as evidence of deceit, showing thatit is impeached by the United States Court ofAppeals ruling, attached as Exhibit 7. TheClosing Statement was produced by the Defendants, but it is a sham document, anexception to the rule, and Plaintiffobjects on the grounds of estoppel. The truthfulness ofthe Closing Statement is a matter of fact for the jury to decide. In the alternative, uponleave to amend the Complaint, Plaintiff will remove the Closing Statement exhibit, pleadthe allegation by reference in the Complaint, and then impeach the Closing Statementwith the Appellate Court ruling, Exhibit 7

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(b). Defendants rely on six cases in an effort to thwart a claim of punitivedamages for fraud, on the grounds that Plaintiff's allegations breach of contract and fraudarise from the same set of facts, and are thus barred. Also, estopple is cited in Taylor, andthe economic loss rule in Sarkis, as a further bar to punitive damages.Mr. Rodems cited the following cases:

Richard Swaebe, Inc. v. Sears World Trade, Inc., 639 So. 2d 1120Lake Placid Holding Co. v. Paparone, 508 So. 2d 372Taylor v. Kenco Chemical & Mfg. Corp., 465 So. 2d 581John Brown Automation, Inc., v. Nobles, 537 So. 2d 614Sarkis v. Pafford Oil Co., 697 So. 2d 524R.D.M.H., Inc., v. Dempsey, 618 So. 2d 794

Mr. Rodems' argument is misplaced because five of the six cases cited arebetween parties dealing at arm's-length and therefore not on point with the present casethat involves the attorney-client relationship and accompanying fiduciary duty. In theremaining case, Lake Placid Holdings, a finding of breach of fiduciary duty was vacatedby the court. If an attorney is guilty of oppressive conduct showing a great indifference tothe person and property of his client, malice may be imputed and punitive damagesawarded, even in an action based on breach of contract. (Singleton v. Foreman, 435 F.2d962). Punitive damages are awardable when the offending party acted with malice, moralturpitude, gross negligence, reckless indifference to the rights of others, wantonness,oppression, outrageous aggravation and fraud. (Stintson v. Feminist Woman s HealthCenter, Inc., 416 So. 2d 1183). Plaintiffh s established that Defendants acted withmalice, moral turpitude, gross negligence, reckless indifference to the rights of others,

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wantonness, oppression, outrageous aggravation and fraud. In Stintson the lawyersobfuscated, manipulated and deceived their clients in a tortious attempt to take all of thesettlement money. In the present case Defendants took most of the settlement money,about ninety percent. Therefore punitive damages should remain.

(iii). Defendants' remaining case, Taylor Woodrow Homes Florida. Inc..v 4/46-A Corp, 850 So. 2d 536, sets forth the essential element of fraud, which Plaintiffalready alleged in the Complaint, paragraph 46. In the alternative, Plaintiff moves forleave to amend the Complaint.5 Count I states a cause ofaction for breach ofcontract. A motion to dismiss forfailure to state a claim should not be granted unless it appears to a certainty that plaintiffwould be entitle to no relief under any state of facts which could be proved in support ofclaim; on motion to dismiss on the pleadings it must be assumed that all of the allegationsof the complaint are true. In the alternative, Plaintiff moves to amend the Complaint.6 Count I is not barred by the doctrines ofwaiver and estoppel. The doctrine ofestoppeL.should be applied with great caution. 22 Fla. Jur. 2d, Waiver nd stoppel 5, p. 489, citations omitted). The doctrine of estoppel is not applicable to transactionswhich are.. .contrary to public policy. (id. at 490). The prohibition on estoppel contraryto public policy should defeat Defendants' claim, because the attorney-client relationshiphas vital public policy implications.7. Defendants claim that Count II of the Complaint fails to state a cause ofaction forfraud. Plaintiffdisagrees, and points to Paragraph 46 of the Complaint which sets forththe essential elements of fraud:

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46. COOK and the LAW FIRM committed fraud because:a COOK's statement to GILLESPIE that the Appellate Court awardedthe LAW FIRM $50,000 in attorney's fees and costs was a material factthat was untrue, as was the LAW FIRM s Closing Statement toGILLESPIE listing court-awarded fees and costs of $50,000. TheClosing Statement's disclosure was a material fact that was untrue; andb. The falsehood described above was known by COOK and the LAWFIRM to be untrue at the time it was made; andc. The falsehood by COOK and the LAW FIRM was stated for thepurpose of inducing GILLESPIE to approve a settlement; andd GILLESPIE relied upon the falsehood from COOK and the LAWFIRM as true and correct, and approved the settlement on October 30,2001; ande. By approving the settlement GILLESPIE suffered fmancial loss of$6,224.78, by accepting the sum of $2,000 instead of the sum of$8,224.78 to which GILLESPIE was entitled under law and theRepresentation Contract.

Plaintiff believes Count n states a cause of action for fraud, and Paragraph46 states the essential elements of fraud. n the alternative, Plaintiff moves toamend the Complaint.8 Defendants claim that Count n of the Complaint is barred by the economic lossrule. Plaintiffstated a cause of action for fraud in Paragraph 46 of the Complaint. Whenfraudulent misrepresentation and negligent misrepresentation in the formation of a

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contract are alleged, the economic loss rule does not bar tort action based on suchmisrepresentations, even absent a tort independent of breach of contract. (Wassall v.W.H. Payne, 682 So. 2d 678).9 Plaintiff complies with section 768.72(1) Florida Statutes, claim for punitivedamages, as follows: In the alternative Plaintiff moves to amend the Complaint).

(a) There is a reasonable showing by the evidence in the record which wouldprovide a reasonable basis for recovery of such damages. Defendants acted with malice,moral turpitude, gross negligence, reckless indifference to the rights ofothers,wantonness, oppression, outrageous aggravation and fraud.

(b) fan attorney is guilty ofoppressive conduct showing a great indifference tothe person and property ofhis client, malice may be imputed and punitive damagesawarded, even in an action based on breach ofcontract. (Singleton v. Foreman, 435 F.2d962). Punitive damages are awardable when the offending party acted with malice, moralturpitude, gross negligence, reckless indifference to the rights ofothers, wantonness,oppression, outrageous aggravation and fraud. (Stintson v. Feminist Woman's HealthCenter, Inc., 416 So. 2d 1183).' Plaintiffhas established that Defendants acted withmalice, moral turpitude, gross negligence, reckless indifference to the rights ofothers,wantonness, oppression, outrageous aggravation and fraud.

(c) Defendant Cook is personally liable in this lawsuit Because an attorney has afiduciary responsibility to the client, that attorney may e personally responsible forbreaching that duty. (4 Fla. Jur. 2d, 478, p. 544). Also, the Florida Supreme Court hasspecifically rejected a defendant attorney's attempt to use the professional association as ashield to prevent personal liability. CKrehling v. Baron, 900 F. Supp. 1574).

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(d) Ryan Rodems and Christopher Barker have vicarious liability for the acts of apartner, if not directly for their own acts. A law firm's liability may be based on its dutyto supervise the activities of a partner of that firm. (Rules Regulating the Florida Bar,Rule 4-5.1 (a).10 Defendant Cook is personally liable in this lawsuit Because an attorney h s afiduciary responsibility to the client, that attorney may be personally responsible forbreaching that duty. (4 Fla. Jur. 2d, 478, p. 544). Also, the Florida Supreme Court hasspecifically rejected a defendant attorney's attempt to use the professional association as ashield to prevent personal liability. (Krehling v. Baron, 900 F. Supp. 1574).11 As for Paragraphs 47 through 50 and Exhibit 8, striking of the pleadings is not

favored and is an action to be used sparingly by the courts, with any doubts to be resolvedin favor of the pleadings. A motion to strike matter from the pleadings as redundant,immaterial, or scandalous should only be granted if the material is wholly irrelevant, andcan have no bearing on the equities and no influence of the decision. (Bay Colony OfficeBldg. Joint Venture v. Wachovia Mortg. Co., 342 So. 2d 1005). Paragraphs 47, 48, and49 are important in pleading the facts ofDefendants' behavior after the discovery offraud. Paragraph 50 sets forth the history with the Florida Bar. Plaintiff waited a yearbefore filing an ethics complaint, allowing Defendants every opportunity to explain.During his argument before this Court, Mr. Rodems suggested that the Florida Barexonerated Defendants; Paragraph 50 explains and answers his assertion. Exhibit 8supports the Complaint, and is evidence ofPlaintiff's attempt to secure an explanation forthe improper payoff attempt by attorney John Anthony. fnote, Defendants did notobject to Paragraph 51, so it remains.

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12 Plaintiff drops his claim for at torney's fees at this time.New matter. May this Honorable Court kindly take notice that the two other plaintiffs inthe Amscot Action, Eugene R Clement and Gay nn Blomefield, are similarly situated toGillespie and may not have knowledge of this lawsuit or awareness of their rights.

WHEREFORE, Plaintiff rebuts Defendants' Motion to Dismiss and Strike andrequests that this Honorable Court deny the motion, with leave to amend the Complaint,and other remedies the Court deems appropriate.

RESPECTFULLY SUBMITTED this day ofOctober, 2005.

CERTIFICATE OF SERVICEI HEREBY CERTIFY that a true and correct copy of the foregoing Plaintiff s

Rebuttal t Defendants Motion to Dismiss and Strike and case law has been furnishedvia hand delivery to Ryan Christopher Rodems, Attorney at Law, Barker, RodemsCook, P.A., Attorneys for Defendants, 300 West Platt Street, Suite 150, Tampa, Florida33606, this 7 J1 day ofOctober, 2005.

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IN THE CIRCUIT COURT OF THE TIDRTEENTH JUDICIALCIRCUIT IN AND FOR IDLLSBOROUGH COUNTY, FLORIDA

GENERAL ML DIVISION

NEIL J GILLESPIE,Plaintiff: CASE NO.: 2005 CA-7205vs.

BARKER, RODEMS COOK, P.A., DNISION:Fa Florida corporation,WILLIAM J. COOK,

Defendants. /PLAINTIFF'S NOTICE OF SERVICE OF CASE LAW IN REBUTTAL TO

DEFENDANTS' MOTION TO DISMISS AND STRIKE

Plaintiffpro se, Neil J. Gillespie, provided the following case law to Defendants'attorney, Mr Ryan Rodems, via hand delivery:

1 Deal v Migoski, 122 So. 2d 4152. Gerlach v. Donnelly, 98 So. 2d 4933 Susan Fixel, Inc. v Rosenthal Rosenthal, Inc4 Singleton v. Foreman, 435 F.2d 9625 WassaIl v W.H. Payne, 682 So. 2d 6786 Stintson v Feminist Woman's Health Center, Inc., 416 So. 2d 11837 Krehling v Baron, 900 F. Supp. 1574

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8 Bay Colony Office Bldg. Joint Venture v. Wachovia Mortg. Co. 342 So. d 1005RESPECTFULLY SUBMITIED this 7 day ofOctober 2005.

CERTIFICATE OF SERVICEI HEREBY CERTIFY that a true and correct copy of the foregoing Plaintiff s

Rebuttal to Defendants Motion to Dismiss nd Strike and case law has been furnishedvia hand delivery to Ryan Christopher Rodems Attorney at Law Barker Rodems

. Cook P.A. Attorneys for Defendants 300 West Platt Street Suite 150 Tampa Florida33606 this 7 day ofOctober 2005.

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122 So.2d 415122 So.2d 415(Cite as: 122 So.2d 415)

District Court of Appeal of Florida, Third District.John 1 DEAL, Appellant,v.Walter J MIGOSKI, Appellee.No. 59-143.

July) 4, )960.Action by plaintiff to rescind assignment of hisdistributive interest in estate of his grandmother tohis attorney, elnployed for perfecting settlement ofestate, on ground that purchase by attorney wasunconscionable. The Circuit Court for DadeCounty, George E. Holt, J., entered decree forattorney and plaintiff appealed. The District Courtof Appeal, Pearson, 1., held that where undisputedfacts showed that attorney purchased client's interestwhile employed to secure settlement of estate, thatpurchase price was far less than the distributiveshare and that client at time of purchase wasunemployed and desperate for money, burden wasupon attorney to adequately demonstrate that thepurchase was for a full and complete consideration,and principle of clean hands would not be appliedagainst cl ient WhOlll attorney claimed had notrevealed that he had Inade a previous assignment ofinC0l11e frOlll estate.Reversed and remanded for further proceedings.

West Headnotes[1] Attorney and Client 1 2 3 245kI23(2) Most Cited CasesResponsibility of an attorney to place client'sinterest ahead of his own in dealing with mattersupon which attorney is employed is foundation oflegal system, and if an attorney purchases from theclient subject lnatter of the attorney's employmentthen transaction is suspect. 31 F.S.A. Code ofEthics, rule B, I, Canon 10.

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[2] Attorney and Client 1 2 3 245kI23(2) Most Cited CasesWhere attorney employed by another purchases thesubject matter of his employment, upon actionbeing filed to rescind transaction attorney hasburden of proving that he paid full and completeconsideration for purchase. 31 F.S.A. Code ofEthics, rule B, 1, Canon 10.[3] Attorney and Client ~ 1 2 3 245kI23(2) Most Cited Cases[3] Equity ~ 6 5 2150k65(2) Most Cited CasesWhere attorney was employed by client havingdistributive interest in estate to effect a settlement ofsuch estate and purchased client's interest for a pricewhich was considerably less than the distributiveshare, and at time of purchase client wasunemployed and desperately needed funds, attorneyhad burden of demonstrating that purchase was for afull and complete consideration and doctrine ofclean hands would not be invoked against clientwho did not reveal to attorney that he had made aprevious assignment of income from estate. 31F.S.A. Code of Ethics, rule B, 1, Canon 10;Preamble.*416 Cunningham & Weinstein, Miami, forappellant.John D. Brion and Wilbur C. Rollins, Miami, forappellee.PEARSON, Judge.The appellant, John J. Deal, owned a distributiveinterest in the estate of his grandmother. Theappellee was Deal's attorney who was hired to effecta prompt settlement of the estate. For his fee theattorney was to receive one-third of Deal's ultimatedistribution. The attorney, however, purchased theclient's entire interest in the estate. Thereafter Dealbrought a complaint in chancery seeking rescission

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and alleged that the purchase was unconscionable.This appeal is from a final decree for the defendant.The decree is reversed and the cause remanded forfurther proceedings.The final decree was in part as follows:'The Plaintiff has filed his complaint hereinseeking cancellation and rescission of an

assignment of his interest in the estate of hisgrandmother, Margaret C. Deal, deceased, to theDefendant Walter J. Migoski, an attorney, on thegrounds of misrepresentation and fraud whileacting as Plaintiffs attorney, and seeking toenjoin the Defendant Wallace Ruff, asAdministrator C.T.A., D.B.N. of said estate fromdisbursing any funds thereof to the DefendantWalter 1. Migoski.'The Defendant Walter 1. Migoski's answer deniesthe wrongdoing charged to him, clailning that hepaid full value for the inheritance and setting up[he additional defense that the Plaintiff i notCOllle into equity with clean hands, by reason ofthe fact that the Plaintiff had previously assignedthe inC0l11e froln the inheritance to his mother andfather without disclosing such prior assignment,whereby a fraud was perpetrated on the defendantMigoski.'From the issues made by the pleadings and theproof submitted, the *417 Plaintiff has failed toprove the material allegations of his complaintand the Court finds that the Defendant Walter J.Migoski under the circumstances acted in goodfaith and paid a good and sufficient consideration,namely, 2,500.00, for the assignment of theinheritance which consisted of a one-sixteenthinterest in and to the Estate of Margaret C. Deal,without notice or knowledge of the priorassignillent of the income to Plaintiffs father and1l1other naillely, Daniel F. Deal and May(Jertrude [)eal. \vhich is dated July 16 1938.'

[ ][2] t is apparent that the chancellor has failedto apply the proper rule as to the burden of goingforward with the evidence. The responsibility of anattorney to place his client's interest ahead of hisown in dealings with matters upon which theattorney is employed is at the foundation of ourlegal system. If an attorney in contravention of

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Canon 10, Rule B, Section (I) of the Code of EthicsGoverning Attorneys, 3 F.S. '59, 31 F.S.A., [FNI],purchases from his client the subject matter of theattorney's employment, then the transaction issuspect. Upon action being filed to rescind thetransaction, the attorney has the burden of provingthat he paid full and complete consideration for thepurchase. Gerlach v. Donnelly, Fla.I957, 98 So.2d493; Renno v. Sigmon, 148 Fla. 229, 4 So.2d 11;Bolles v. O'Brien, 63 Fla. 342, 354, 59 So. 133;Williams v. Bailey, 69 Fla. 225, 67 So. 877. Seealso Williston, Contracts, I625A (rev. ed. 1937.)

FN 1. Acquiring Interest in Litigation.--The lawyer should not purchase anyinterest in the subject matter of thelitigation which he is conducting.'

[3] Certain facts appear without dispute from thisrecord: 1) Migoski purchased his client's interest inan estate while he was employed to securesettlement of the estate. 2) The purchase price was2,500 and the distributive share was at trial, twoand one-half years later, worth from 7,200 to8,500, exclusive of income and charges forprobate. 3) The client was at the time of thepurchase unemployed and desperate to find a sourceof money to meet daily needs. Therefore it isnecessary to detennine whether the attorney has metthe burden cast upon him by his conduct.In an attempt to invoke the principle, He whocomes into a court of equity must come with cleanhands', the attorney complained that Mr. Deal didnot reveal to him that he had made a previousassignment to his mother and father of the incomefrom the estate. While Mr. Deal's explanation thathe forgot the infonnal assignment is not adequate torelieve him of responsibility, the effect of theassignment was not to destroy the advantage gainedby Mr. Migoski. It only decreased and postponedthe enjoyment of the advantage.The principle of clean hands requires a plaintiff tobe free of any inequitable conduct relative to thecontroversy. See cases cited at 12 Fla.Jur., Equity 55. See Faber v. Landman, Fla.App.1960, 123So.2d 405. There are some recognized limitations

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122 So.2d 4 15122 So.2d 415(Cite as: 122 So.2d 415)

to this principle. 2 Pomeroy, Equity Jurisprudence, 399 (5th ed. 1941), and cases cited thereinThe relation of attorney and client is one of themost important as well as one of the most sacredrelations known to the law. It is indeed a relationaffected by a very vital public interest which ispredicated on trust and confidence. State v. Snyder,36 Fla. 875, 187 So. 381 [FN2].

FN2. The prealnble to Rule B of the Codeof Ethics Governing Attorneys, 3 F.S. '59,3 F.S.A., reads as follows:lIn Anlerica, where the stability of Courtsand of all departments of government restsupon the approval of the people, it ispeculiarly essential that the system forestablishing and dispensing Justice bedeveloped to a high point of efficiency andso maintained that the public shall haveabsolute confidence in the integrity andimpartiality of its administration. Thefuture of the Republic, to a great extent,depends upon our maintenance of Justicepure and unsullied. It cannot be somaintained unless the conduct and themotives of the members of our professionare such as to merit the approval of all justInen.'

*418 We therefore hold that the public interestrequires the intervention of the court, if thedefendant-lawyer is unable to satisfy the burden castupon hiln to prove that no advantage has been takenby him of his client, notwithstanding thewrongdoing of the plaintiff-client. To apply theprinciple of clean hands in the instant case would beto ignore the exacting standards placed uponlawyers, who are officers of the court. Theprinciple should not be applied by the court as ashield to protect its own officers if there is aquestion of unconscionable advantage. It is truethat courts should be cautious in affording relief to acomplaining party, who is guilty of wrongdoing; butwhere vital public interes ts .are involved, the doorshould not be closed.When the Inatter is again entertained by the

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chancellor the issue before him will be whether theattorney has adequately demonstrated that thepurchase was for a full and complete considerationand free of all the advantages which an attorneyordinarily has of knowing more of a client's legalrights than the client knows.Reversed and remanded for further proceedings inaccordance with the opinion.HORTON, C. 1., concurs.CARROLL, CHAS., J., concurs speciallyCARROLL, CRAS., Judge (concurring specially).I concur in the court's reversal of the decree, but Ido not agree with the majority's direction for furthertrial of this case.It was established that the value of the interestpurchased by the lawyer was far more than he paidfor it. This is so, even giving effect to theassignment the plaintiff had made of the income fora period.By the defendant attorney's own testimony, he andthe plaintiff discussed the value of plaintiffs sharein the estate and estimated it to be in excess of7,000 after adnlinistrative expenses; and theattorney informed the plaintiff that an outsiderapproached to buy his share in the estate wouldregard the purchase as a speculation, and probablywould not be willing to pay more than one-third ofthe value of the plaintiffs interest [FN1].

FNI. The testimony of Walter J. Migoskion this feature was as follows:'Q. Did you have any discussion with himas to the value of his inheritance, the pricehe should ask? A. Yes, I did; and I madecertain notations on my files, and if I mayuse that file to refresh my memory--myscribbled notes show a gross estimatedestate of 113,500. Dividing that intosixteen parts would give an interest of7,093 as the estimated interest of hisshare. That, combined with the



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brokerage COITIITIISSIOn that would havebeen involved in the sale of thoseproperties [of the estate], the expenses ofclosing, that I would easily figure on about20,000 as gross expenses, which wouldinclude the brokerage commissions,attorney's fees, administrative fees, and soon. Taking that into consideration, wearrived at a figure of a little over 7,000 asthe estimated value of this one-sixteenthinterest in the estate. s I mentionedpreviously---Q. You told him to answer these ads thatappeared in the papers, and so on. Had heset any figure, or was it just inquiry? Washe making any figure as to what he shouldask for his inheritance? A. I said basedupon a figure of 7,500, and that he wouldprobably realize one-third of that. [n myopinion, a prospective speculator or buyer\vould nor pay any 1110re than that. And wearrived at 2,500 as a reasonable figurethat he could expect to get.'When he told me that it was all right, whathe would be willing to accept for it, Iadvised him to try to sell it to other people.He came back to see me and had had nosuccess. I then said I had a Canadianclient who perhaps would be interested.'[After explaining that his Canadian client,though interested, had not purchasedplaintiffs interest because he was requiredto return to Canada on business] * * *When Mr. Deal came back to me, I thenadvised him that in my opinion I could sellit, and if he was interested, I would goahead. He asked me right then and there,could I advance hilTI some money, and IilTInlediately ITIade out a check for him on,I believe--* * *'.

419 It appears that the plaintiff was so pressedfor funds that he was willing to sell on that basis ifthat was all he cou Id get, and he authorized hisattorney to so proceed. The attorney purchased theinterest for himself, while the plaintiff was given tobelieve the attorney was selling it to a third party.

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But the plaintiffs lawyer was not uninfonned onthe value of the plaintiffs interest in the estate.Conceding that an outside party, not having the fullknowledge of the estate enjoyed by the plaintiff andhis lawyer, understandably would consider it aspeculation, and be willing to buy it only at afraction of its represented value, the situation wasdifferent as to the plaintiffs attorney. He knew thevalue, and under the applicable law he was requiredto make full disclosure to his client of thecircumstances of the sale to him, as well as to payfull value. s it not reasonable to assume that theplaintiff would have expected to receive more fromhis lawyer, who knew the estate and its value, thanfrom an uninformed third party he understood wasto be the purchaser? Otherwise, why would thelawyer, while buying the interest for himself, allowhis client to believe he was selling to an outsider tothe estate on a 'speculation' basis?This record shows, by the plaintiffs testimony, thateven when he and his wife signed the papers fortransfer of his interest in the estate to Migoski heunderstood that the transfer was being handledthrough Mr. Migoski for some 'northern buyer' withwhom the attorney was in contact. The testimonygiven in the case by the defendant attorney does notcontain any denial of this. The lawyer testified thathe instructed and informed the plaintiff about thepapers by which the assignment was being made tohim in his name, but his testimony does not disclosewhat the explanation was, and nowhere does theattorney clearly or flatly state that he infonned theplaintiff that it was he, and not a northern buyer asthe plaintiff says he understood it, who was buyingplaintiffs interest in the estate. In addition to thisnondisclosure on the part of the attorney, there werethe circumstances of the financial distress of theplaintiff and an established inadequacy ofconsideration. The result was that the lawyeracquired property of his client under conditions andcircumstances in which the courts hold he may notbe pennitted to retain it.The law applicable to this situation is well statedin 1 Black, Rescission and Cancellation, 51 (2ded. 1929), as follows:'The relation of attorney and client is likewise one



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which requires the exercise o the utmost goodfaith and integrity. Any transaction or dealingbetween them will be closely scrutinized by thecourts, and the attorney will not be allowed toretain any unconscientious advantage which hemay have gained, even though he was guilty o noactual fraud. It is necessary, in fact, for him toshow, in order to defend his position, that therewas no fraud or mistake, no undue influence orbad advice on his part, no concealment orisrepresentation, and no inequitable advantagetaken o his dOlll inating position.who bargains with his client inadvantage to hilTIself must, if theafterwards questioned, show thatconducted, and that he discharged

An attorneya matter oftransaction isit was fairlyhis duties tohis client not only by refraining from allmisrepresentation and concealment, but bydiligence to see that the client was fully informedo the nature o the transaction and o his ownrights and interests, either by independent adviceor else by such advice from the attorney himselfas he would have given i *420 he had been astranger to the transaction. These rules areapplicable with perhaps peculiar severity wherethe attorney buys property from his client or sellsto him * * *'.therefore, concur in the reversal o the decree,

but can not agree that there is need for any further[rial in this Inaner; and it is nlY opinion that thiscou,1 should remand the cause with directions toenter a decree in favor o the plaintiff for rescissiono this sale o his interest in the estate to his lawyer.122 So.2d 415END OF DOCUMENT



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98 So.2d 49398 SO.2d 493(Cite as: 98 So.2d 493)

Supreme Court of Florida.Kingsley H. GERLACH, Appellant,v.Jess Stanley DONNELLY, as Executrix under theLast Will and Testament of EmmettDonnelly, deceased, Appellee.Nov. 20,1957.

Action to cancel notes brought by purported makeragainst executrix of estate of deceased payee. TheCircuit Court, Polk County, D. O. Rogers, 1.,dismissed complaint, and maker appealed. TheSupreme Court, Drew, 1., held that evidencesupported finding that notes were actually signed bymaker, but did not support conclusion that makerhad had any knowledge or recollection of signingnotes or that they represented any legal obligationof maker to payee.Reversed.Thomas and Hobson, J1., dissented.

West HeadnotesRills and Notes =S1756k51? Most Cited CasesBills and Notes =S18 (1 )56k518( I) Most Cited Cases

In action to cancel notes brought by purportedmaker against executrix of estate of deceased payee,evidence supported finding that notes were actuallysigned by maker but did not support conclusion thatmaker had had any knowledgeor recollection of signing notes or that notesrepresented any legal obligation of maker to payee.12) Executors and Administrators =433162k433 Most Cited CasesIn action to cancel notes brought by purported

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maker against executrix of estate of deceased payee,all defenses which would have been availablebetween parties to note were available. F.S.A. 674.18.13) Bills and Notes =49256k492 Most Cited CasesPresumption of delivery of note falls in face ofdirect proof. F.SA 674.18.4 Bills and Notes =517

56k517 Most Cited CasesIn action to cancel notes brought by purportedmaker against executrix of estate of deceased payee,direct testimony that there was no delivery of notesand that they were procured by fraud overcamepresumption of delivery before it arose. F.S.A. 90.05,674.18.15) Witnesses =164 (6)410kI64(6) Most Cited CasesIn action to cancel notes brought by purportedmaker against executrix of estate of deceased payee,dead man's statute did not preclude maker fromtestifying as to transactions. F.S.A. 90.05.16) Bills and Notes =493(1)56k493( I) Most Cited CasesPresumption that every negotiable instrument hasbeen issued for a valuable consideration isrebuttable and may be overcome by proof. F.S.A. 90.05, 674.27.[7) Bills and Notes =518(1 )56k518(1) Most Cited Casesn action to cancel notes brought by purportedmaker against executrix of estate of deceased payee,evidence overcame presumption of consideration.

F.SA 90.05, 674.27.18) Attorney and Client =l0645k106 Most Cited CasesAn attorney is under duty at all times to represent



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his client and handle his client's affairs with utmostdegree of honesty, forthrightness, loyalty andtidel iry19 Attorney and Client ;::J123 2)45k 123(2) Most Cited CasesBurden is upon attorney to establish by clear andconvincing evidence fairness of an agreement ortransaction purporting to convey a property rightfrom a client to his attorney, and burden is castupon attorney in such transactions to establish thatthey were made upon full and adequateconsiderat

Order on Defendants' Motion to Dismiss and Strike-Jan-13-2006

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